United States of America v. Adam Dean Fox (23-1014); Barry Gordon Croft, Jr., (23-1029)

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0073p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ADAM DEAN FOX (23-1014); BARRY GORDON CROFT,
JR., (23-1029),
Defendants-Appellants.
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Nos. 23-1014/1029
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:20-cr-00183—Robert J. Jonker, District Judge.
Argued: May 2, 2024
Decided and Filed: April 1, 2025
Before: LARSEN, READLER, and DAVIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Steven S. Nolder, Columbus, Ohio, for Appellant in 23-1014. Timothy F. Sweeney,
LAW OFFICE OF TIMOTHY F. SWEENEY, Cleveland, Ohio, for Appellant in 23-1029. Nils
R. Kessler, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Steven S. Nolder, Columbus, Ohio, for Appellant in 23-1014. Timothy F.
Sweeney, LAW OFFICE OF TIMOTHY F. SWEENEY, Cleveland, Ohio, for Appellant in 23-
1029. Nils R. Kessler, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan,
for Appellee.
>

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_________________
OPINION
_________________
PER CURIAM. During the summer of 2020, Adam Fox and Barry Croft, Jr. hatched an
elaborate plan to kidnap Michigan’s Governor, Gretchen Whitmer. A federal jury convicted
both men on all charges, and the district court sentenced Fox to 192 months’ imprisonment and
Croft to 235 months’ imprisonment. On appeal, Defendants argue that there was insufficient
evidence to convict them of the charges and that the district court erred by: (1) declining to
conduct a “Remmer” hearing to allow questioning of an allegedly biased juror, pursuant to
Remmer v. United States, 347 U.S. 227 (1954); (2) limiting the defense’s time for cross-
examination of a co-conspirator; and (3) limiting the scope of the admissibility of certain
government informant statements. For the reasons set forth below, we affirm.
I.
A.
Beginning in March 2020, the Federal Bureau of Investigation (“FBI”) received a tip
from Dan Chappel, a member of a Michigan-based militia group known as the Wolverine
Watchmen. Chappel had become concerned about the group’s shift in discussions from honing
their firearms skills to killing local law enforcement officers. After talks with the FBI, Chappel
agreed to become an informant and to gather information on the Wolverine Watchmen’s
activities
During this same time, the FBI was also investigating a Delaware resident, Barry Croft,
Jr., relating to his communications with a federal fugitive and his posting of threats to kill FBI
agents on his social media accounts. According to later witness testimony, Croft had been
associated with anti-government extremist views for some time. In October 2019, Croft sent a
direct message through Facebook to a friend explaining that he was planning a “flash gathering
in Ohio,” with the goal of evading FBI detection. (R. 838, PageID 14491–92). In a recording,
Croft mentioned that since December 2019, he had been speaking about abducting a state

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governor, explaining that he wanted to “take the militia and go grab that f[]cking governor right
where he lives at.” (Gov. Ex. 112).
In February 2020, Croft befriended Michigan resident, Adam Fox, on Facebook, and the
two exchanged contact information while continuing to correspond during the spring of 2020.
At some point, Croft contacted Fox and invited him to a gathering in Ohio. Fox agreed to attend,
and, during the conversation, he explained that he was “ready [to] get something done” and that
it was “time to inspire and move people,” noting that he was going to be a “Savage on that Battle
field [sic].” (Gov. Ex. 479-002). Croft responded that he had some “good ideas that require the
gift of physical.” (Id.)
In April 2020, Croft posted online that the execution of state governors would lead to a
second American Revolution and that “all it’s going to take is 1 state, to burn out and hang a
Gove[r]nor, and those dominoes will start falling.” (Gov. Ex. 4). In May 2020, Croft posted a
picture of a noose, accompanied by text stating: “Which Governor is going to end up dragged
off, and hung for treason first?” (Gov. Ex. 360). In advance of a planned meeting in Ohio, Croft
told Fox that the meeting was to discuss “improvis[at]ions” (sic) for attack plans, stating “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 let’s go get some.” (Gov. Ex. 486)
Meeting in Dublin, Ohio. On June 6, 2020, various militia groups convened in Dublin,
Ohio. Croft and Fox met in person for the first time. Prior to the meeting, the FBI had learned
that Steve Robeson—a government informant—was invited, so they provided him with a
recording device to monitor the meeting’s activities. During the meeting, Croft stated that he
planned to “terrorize people. The right people.” (Gov. Ex. 35). He also explained that he had
studied insurgency tactics and instructed attendees on how to make explosive devices. Fox
proposed “storm[ing] the Capitol” and advocated for taking government officials as hostages.
(Gov. Ex. 40).
Croft’s Recruitment of Fox. A week after the Dublin, Ohio, meeting, Croft began
working to connect Fox with his contacts in the Wolverine Watchmen. In a Facebook message
to Watchmen leader Pete Musico, Croft explained that Fox was working with the 2nd

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Continental, Michigan Regiment. That same day, Croft also contacted Fox to notify him that he
would be connecting him with his Michigan contacts. Fox then messaged Musico’s son-in-law
and Watchmen co-leader, Joe Morrison, and discussed the fact that they had a common goal and
that they should meet and talk. That same week, Fox left a voice message for another associate:
I wanna make real change, dude. I don’t want no more of these fake-[]ss f[]cking
rallies that don’t do nothing. Like, I wanna go make actual change. I wanna set
this sh[]t up. I want to bring formal charges against our governor, and the tyrants
in our f[]cking state. And I want to go f[]cking charge them. And arrest them.
And f[]cking make them accountable. For once in our f[]cking lives, let’s do
something f[]cking bold.
(R. 838, PageID 14538; Gov. Ex. 54).
On June 18, 2020, Fox met members of the Wolverine Watchmen at a rally outside the
Michigan State Capitol. This was Fox’s first meeting with government informant Chappel. Fox
was also introduced to FBI Special Agent Mark Schweers, who posed as someone who shared
Fox’s ideals. Fox invited Schweers and members of the Watchmen, including Chappel and Ty
Garbin, to a meeting at the Vac Shack, a local business in Grand Rapids, Michigan, where Fox
lived and worked.
Vac Shack Meeting in Grand Rapids, Michigan. On June 20, 2020, Fox held a meeting at
the Vac Shack where Fox required attendees to surrender their cell phones before entering a trap
door to the basement. Fox proffered ideas that included storming the Michigan Capitol and
executing Governor Gretchen Whitmer. For instance, in a conversation recorded by Chappel,
Fox stated: “I don’t feel like we should be waiting until November . . . I think we need to
actively be staging and planning things.” (Gov. Ex. 64). Fox also told the attendees about the
Ohio meeting, explaining that there were numerous strategies. While admitting that some of the
ideas were “pretty farfetched and extreme,” he also noted that there were other options to “level
[the] tactical playing field.” (Gov. Ex. 65). Fox also discussed soliciting an explosives
specialist, Matt Keepers, and notified the group that he had a meeting with Keepers the following
Monday.
Days later, Fox reached out to recruit Keepers, whom Fox had known since 2017–2018
through their membership in a different militia group. In a Facebook message, Fox explained to

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Keepers that the group had come together to “tak[e] action” and stressed the need to “keep things
secure,” meaning maintain secrecy when discussing their plans. (Gov. Ex. 444). Keepers
testified that almost three months after the initial exchange, Fox asked him for help to procure
explosives. Keepers declined and ended the conversation.
FTX in Munith, Michigan. On June 28, 2020, Fox attended a Wolverine Watchmen field
training exercise (“FTX”) in Munith, Michigan. There, he told attendees that they needed to
arrest Governor Whitmer for treason against the citizens of Michigan, and that she should be
hanged. The next day, Croft contacted an associate and echoed Fox’s message, explaining that
“Michigan’s government is a target of opportunity” and “[i]f an opportunity presents we’ll
engage . . . God knows the governor needs hung.” (R. 838, PageID 14543–44; Gov. Ex. 71).
FTX in Cambria, Wisconsin. During the weekend of July 10–12, 2020, Fox and members
of the Wolverine Watchmen traveled to Cambria, Wisconsin, to participate in another FTX.
Croft, who had not attended the Munith FTX, was also present. On the first day, the group met
at a local restaurant where Croft said he did not like the idea of anyone being killed, but assured
the group that “you don’t make an omelet without breaking a few eggs . . . So, unfortunately, bad
decisions have put us in a place where eggs are going to have to get broken.” (Gov. Ex. 93).
Croft also conveyed that if he had the opportunity to take Governor Whitmer into custody and
hold a trial, he could “hold her accountable for her actions [and] have her adjudged,” while
noting that “treason is a hanging offense.” (Gov. Ex. 106).
Over the weekend, Croft and others built a “shoot house,” where they practiced breaching
and shooting a room with semiautomatic rifles and live ammunition. (R. 841, PageID 15089–91;
R. 842, PageID 15510). They also conducted medical training to simulate treating wounds
suffered in the event of combat. On the final day of the FTX, 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 f[]cking 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 f[]cking governor.
While all that commotion is going on, while all that, their f[]cking
communications what they have left after blowing the tower, is lighting up.

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‘Oh my god, there’s artillery raining down on this precinct. This tower just
dropped over here on this f[]cking municipal airport runway.’
---
And while it’s all in the midst of confusion, there’s a tornado spinning through
your f[]cking community, wham! A quick, precise grab on that f[]cking
governor. And all you’re going to f[]cking 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.
---
[I]f that precise group of seven men are prepared for the job? I’ve put three of
them as snipers with FLEERs, so their (sic) f[]cking shooting at heat signatures,
dropping those f[]cking armed guards before we even broach the f[]cking house.
All that’s left leaving is her, you understand?
(R. 839, PageID 14742; Gov. Ex. 108).
Croft also took into consideration that Governor Whitmer’s security detail would be
“armored targets,” and concluded as a result that making improvised explosive devices (“IEDs”)
was imperative to “have a chance against” them. (Id. at 14737; Exs. 84, 85). For this purpose,
he noted that he would need to train the group in the use of demolitions. Accordingly, Croft took
a red duffel bag filled with materials to craft IEDs to the Cambria FTX with the purpose of using
them against both humans and vehicles. Croft, Garbin, and fellow Wolverine Watchman Kaleb
Franks, tried to build an IED using a funnel, gunpowder, and copper BBs1 for shrapnel at this
FTX, but their efforts ultimately failed.
First Reconnaissance of Governor Whitmer’s Home. Over a week after the Cambria
FTX, at a meeting in Peebles, Ohio, Fox told an informant of several different ideas. One was to
kidnap the Governor from her vacation home near Traverse City, Michigan in a “one [night]
execution,” after first spending two weeks performing reconnaissance and another week
planning. On July 27, Fox shared these plans with informant Chappel.
1A “BB” is “a shot pellet 0.175 inch in diameter for use in a BB gun.” BB, Merriam-Webster’s Unabridged
Dictionary, https://unabridged.merriam-webster.com/unabridged/BB (last visited June 27, 2024); see also BB Gun,
Merriam-Webster’s Unabridged Dictionary, https://unabridged.merriam-webster.com/unabridged/BB%20gun (last
visited June 27, 2024) (“a smooth-bore air gun actuated by a spring-loaded plunger that upon release from the
cocked position compresses the air behind the pellet and propels it from the tube.”).

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On August 29, Fox, Chappel, and Wolverine Watchman Daniel Molitor, went to surveil
the Governor’s home. Upon arrival, Fox took photographs of the cottage and instructed Chappel
to drive past it several times for Molitor to make a slow-motion video. On the opposite side of
the lake, the group searched for an alternate way to approach the Governor’s home by boat.
Looking across the lake, Fox noticed a boat launch and came up with the idea to travel to her
home, launch a boat and leave a trailer in the water, kidnap the Governor, then hook the boat to
the trailer and escape. He added that this was the “perfect” plan as the Coast Guard would not be
there to interfere. (R. 841, PageID 15133; Gov. Ex. 197). At the same time, Fox noted that the
group needed to focus on interference by the local police. The group then drove to the local
police department and noted its location.
After the reconnaissance, Fox, Chappel, and Molitor went to eat at a local diner where
Fox took a piece of paper and drew a map of the Governor’s home and the surrounding areas.
This included the name of the street, the water route to her home from across the lake, and the
distance of the closest police station, in miles and minutes, from the home.
FTX in Luther, Michigan. On September 4, Fox messaged Chappel telling him to add
certain equipment to the list of kidnapping materials, including flash bangs, a hood for the
“asset,” and flex cuffs. (R. 841, PageID 15141–43; Gov. Ex. 208). Garbin testified that the
“asset” for whom the hood was required, was in fact Governor Whitmer. In preparation for the
upcoming FTX in Luther, Michigan, Garbin and Kaleb Franks began constructing the training
camp, which included a backdrop for live fire exercises with human silhouette targets. They also
constructed another shoot house, which, according to Fox, was to simulate the inside of
Governor Whitmer’s vacation home.
During the weekend of September 11–13, 2020, the group met in Luther for the FTX.
Video recordings from the training exercises depict members of the group practicing breaching
the home, with Croft using a specially modified shotgun to assist with breaking open locked
doors, while donning a camouflage uniform with a flag patch associated with revolutionary-
oriented militia groups. Croft later told an informant that he was building a bomb with pennies
attached as “metal projectile[s]” with a sizable blast radius. (Gov. Ex. 219). He added that the
pennies were going to be hot when they exploded and could penetrate the skin. Concerned about

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Croft’s previous discussion about recruiting an explosives specialist in June 2020, the FBI
directed Chappel to introduce Fox to undercover agent Timothy Bates, who went by the alias of
“Red,” an old Army friend with access to explosives. Bates attended the Luther FTX and told
Fox and Croft that he had a video demonstrating the power of C-4 explosives.
Second Reconnaissance of Governor Whitmer’s Home. On the evening of September 12,
2020, Fox gathered group members to perform a nighttime reconnaissance of Governor
Whitmer’s home. Before heading out, Fox detailed his plan to kidnap the Governor, including
the need for explosives to blow up the bridge (the only one leading out of the city). He invited
others, including undercover agent Schweers, to watch Bates’s video of the explosive
demonstrations. Fox advised that the plan now included taking the Governor out to Lake
Michigan, dropping the motor from the boat, and leaving her stranded. While explaining that the
new goal was not to kill anyone, Fox mentioned that “it’s going to send a [] message . . . ‘Hey. If
we can get her, we can get you.’” (Gov. Ex. 223). After Fox and Croft viewed the video of
explosives, Fox inquired about the price, and Bates replied that it would be $5,000.
The group changed out of military clothing and departed for Governor Whitmer’s
residence in three vehicles to begin surveillance. The first car, containing Fox, Croft, Chappel,
Bates, and another informant, went to the Governor’s vacation home to surveil it in preparation
for the kidnapping. While en route, they stopped at the bridge where both Fox and Bates got out
of the vehicle to take pictures underneath it, while discussing where to place the explosives.
Next, the group drove to the boat launch to view it with a night vision scope. The second car,
containing Garbin, Franks, and another member of the group, Brian Higgins, drove to the
Governor’s street on the other side of the lake, using night vision goggles to view the first
vehicle’s infrared flashlight to signal to the others once they arrived in position. The third car,
containing Wolverine Watchmen William and Michael Null, was assigned to drive around the
area and keep watch for law enforcement.
Abduction Plan & Ordering of Explosives. The next morning, on September 13, 2020,
the group gathered at Garbin’s camp in Luther, Michigan, to discuss the surveillance of the prior
evening. Croft determined that the best plan would be to transport the Governor from Birch
Lake (the location of her residence) to Lake Michigan. Fox agreed. Later in the day, Croft, Fox,

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Garbin, Franks, Chappel, Bates, and others discussed the possibility that Governor Whitmer
would have a U.S. Secret Service detail if she were appointed to a cabinet position after the 2020
presidential election. Croft explained that in the event that she had increased security, the group
would need a grenade launcher to engage her detail. When asked about the possibility of being
caught, Croft responded: “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.” (Gov.
Ex. 257). Fox and Bates eventually agreed to $4,000 for the explosives and $600 for the flash
bangs; Fox notified the group that they would have to pitch-in regarding the $4,000 for the
purchase.
IED Detonation. On September 13, 2020, during the final day of the Luther FTX, Croft
detonated an IED that he said was made from a mortar firework and pennies for shrapnel.
Croft’s girlfriend, Chasity Knight, later testified that before the explosion, Croft went up the hill
to detonate the explosive, and then she heard “a big boom.” (R. 841, PageID 15184). A
recording by an informant captured a voice yelling, “Fire in the hole!” followed by the
explosion. (Gov. Ex. 222).
Final Vac Shack Training. On September 19, 2020, in an encrypted chat message, Fox
proposed running an extraction drill in the basement of the Vac Shack, which included close
quarters combat training. Fox emphasized that the group only had six weeks until the 2020
presidential election, so it was imperative to use the time wisely to prepare. On September 30,
Fox called Chappel to notify him that he was getting the basement prepared for the drills.
Preparations included creating dark rooms to practice using night vision, and practicing using
handcuffs to “obtain[] the [Governor] and extract[] [her] out.” (R. 841, PageID 15168; Gov. Ex.
278). During his call with Chappel, Fox also discussed using tasers and stun guns on the
Governor’s security detail and stated that everyone agreed to purchase explosives from Bates.
Arrests of Co-Conspirators. At the direction of the FBI, Chappel told Fox the group
could meet “Red” (i.e., Bates) in Ypsilanti, Michigan, to make a downpayment on the
explosives. On October 7, 2020, when Fox, Garbin, and Franks traveled to the meeting, they
were arrested by federal agents. Agents searched Fox’s person and seized his cell phone, his
stun gun, and $276.17 in cash. According to Garbin, while in jail, Fox admitted that the cash

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seized was a good-faith payment for the explosives and that he had an additional $600 at his
home.
Agents searched the Vac Shack and seized the aforementioned $600, a Taurus 9mm
semiautomatic pistol, a loaded Palmetto 5.56mm semiautomatic rifle, a vest carrier for body
armor plates with an attached radio, loaded rifle magazines, a medical kit, a tactical helmet, and
smoke cannisters. Agents also retrieved a backpack containing duct tape, a knife, rope, zip ties,
and flex cuffs. Included among the items seized were Fox’s handwritten notes, which contained
references to the plans and the equipment that would be needed to carry them out. On the cell
phone seized from Fox’s person, agents found maps of the Birch Lake area, including a zoomed-
in view of the Governor’s street.
The following day, Croft was arrested on a highway in New Jersey. Agents recovered,
among other things, a loaded Glock 10mm semiautomatic pistol with an extended magazine.
And a search of Croft’s home netted a red duffel bag containing hobby fuse, two cannisters of
smokeless powder, three cannisters of smokeless propellant, one exploding target, a jar
containing 6,000 copper-coated steel BBs, duct tape, electrical tape, a funnel, travel-sized silicon
containers, and party balloons. Agents also recovered Croft’s double-barreled 12-guage
breaching shotgun, commercial fireworks, and the receipt for Croft’s purchase of the fireworks,
along with $353 in cash. A separate team searched the camp at the Luther FTX site and found a
mortar for firing the same type of fireworks found at Croft’s home. In the forest near the camp,
agents discovered a burned area with scattered metal objects, staples, and charred pennies.
B.
On April 28, 2021, a federal grand jury in the United States District Court for the
Western District of Michigan returned a superseding indictment against Fox, Croft, Franks,
Daniel Harris, and Brandon Caserta. Count 1 charged all five defendants with conspiracy to
kidnap Governor Whitmer in violation of 18 U.S.C. § 1201(c). Count 2 charged Fox, Croft, and
Harris with conspiracy to use a weapon of mass destruction (“WMD”) in violation of 18 U.S.C.
§§ 2332a(a)(2)(A), (C) and 921(a)(4). Count 3 charged Croft and Harris with possession of an
unregistered destructive device in violation of 26 U.S.C. §§ 5861(d), 5871, and 5841. Count 4

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charged Harris with possession of an unregistered short-barreled rifle in violation of 26 U.S.C.
§ 5861(d).
Franks pleaded guilty in February 2022. The remaining defendants went to trial in March
2022. After a 20-day trial, Harris and Caserta were acquitted, while the jury was unable to reach
a verdict on Fox and Croft. They were retried in August 2022, and the jury found both men
guilty of all charges. Fox was sentenced to 192 months’ imprisonment and Croft was sentenced
to 235 months’ imprisonment. Defendants timely appealed.
II.
Defendants raise the following claims: (1) there was insufficient evidence to convict
them of the conspiracy charges and the possession of an unregistered destructive device (Croft
only); (2) the district court abused its discretion in declining to hold a Remmer hearing for
defense counsel to question an allegedly biased juror; (3) the district court abused its discretion
when it “arbitrarily” placed time limits on the defense’s cross-examination of co-conspirator,
Kaleb Franks; and (4) the district court abused its discretion when it limited the admission of
informant statements to those that repeated the words of the federal agents. We address each
argument in turn.
A.
Sufficiency of the Evidence. We review challenges to the sufficiency of evidence for a
conviction de novo. United States v. Bauer, 82 F.4th 522, 528 (6th Cir. 2023). In doing so, we
must “draw all reasonable inferences, including inferences from circumstantial evidence, in favor
of the government.” United States v. Acosta, 924 F.3d 288, 296–97 (6th Cir. 2019). “A
conviction is based on sufficient evidence if, ‘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.’” United States v. Matthews, 31 F.4th 436, 446 (6th Cir.
2022) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We will not reverse a conviction
based on a sufficiency of the evidence claim unless, “viewing the record as a whole, the
judgment is not supported by substantial and competent evidence.” United States v. Wright, 774
F.3d 1085, 1088 (6th Cir. 2014) (quoting United States v. Blakeney, 942 F.2d 1001, 1010 (6th

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Cir. 1991)). The “heavy burden” to show that the evidence was not substantial or competent lies
with the defendant. Wright, 774 F.3d at 1088 (citation omitted).
Here, both Fox and Croft maintain that the government failed to meet its burden of proof
on Counts 1 (conspiracy to kidnap) and 2 (conspiracy to use a WMD) of the superseding
indictment. While Croft, alone, challenges the sufficiency of the evidence for Count 3
(possession of an unregistered destructive device).
1.
Conspiracy to Kidnap. “To prove a conspiracy to kidnap under [18 U.S.C.] § 1201(c),
the government must show: ‘(1) the existence of an agreement to violate the law; (2) knowledge
and intent to join the conspiracy; and (3) an overt act constituting actual participation in the
conspiracy.’” United States v. Small, 988 F.3d 241, 252 (6th Cir. 2021) (quoting United States
v. Blackwell, 459 F.3d 739, 760 (6th Cir. 2006)). Because a conspiracy “may be inferred from
circumstantial evidence, a defendant’s knowledge of and participation in a conspiracy also may
be inferred from his conduct and established by circumstantial evidence.” Id. (quoting United
States v. Conatser, 514 F.3d 508, 518 (6th Cir. 2008)).
Fox maintains that the government failed to prove that he agreed to kidnap Governor
Whitmer because there was “no specific plan,” and the plans he discussed were “fanciful” and
“fantastic.” (ECF 26, Fox Appellant Br. 55–56). An agreement to join a conspiracy “can be
tacit, not formal.” United States v. Williams, 998 F.3d 716, 728 (6th Cir. 2021) (internal
quotations omitted). So the government was not required to present evidence of an express
arrangement. It merely had to show that Defendants “agreed to participate in what [they] knew
to be a collective venture directed toward a common goal.” United States v. Smith, 320 F.3d
647, 653 (6th Cir. 2003).
Our decision in United States v. Amawi, 695 F.3d 457 (6th Cir. 2012), is instructive.
Amawi involved a group of men charged with conspiring to kill U.S. military personnel stationed
in Iraq. Id. at 475–76. The defendants in that case had not formally expressed their assent, but
their actions were enough to show their agreement. Amawi directly told a second individual that
“he wanted to go to perform Jihad against the U.S. troops overseas,” meaning that he wanted to

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kill them. Id. at 476. He subsequently provided the second individual with jihadist videos used
to train terrorists and recruited a third individual to train with him and the second individual for
the mission. Id. at 466. Thus, all three viewed videos that depicted “martyrdom” operations and
met to discuss various plans. Id. at 477–78. Their discussions included “join[ing] the brothers
overseas” in reference to gathering with other militant groups fighting against the U.S. military,
and conducting trainings aimed at meeting their goals. Id. at 477.
The Amawi defendants argued that the government’s evidence was insufficient to show
that they agreed to commit the same crime. Id. at 476–77. In upholding the defendants’
convictions there, we noted that “[t]the distinguishing feature of a conspiracy is the agreement to
violate the law.” Id. at 476 (citing Iannelli v. United States, 420 U.S. 770, 777 (1975)). So
framed, we observed that the government needed to prove only that the defendants adopted the
“conspiracy’s main objective.” Id. (citing United States v. Crossley, 224 F.3d 847, 856 (6th Cir.
2000)). Thus, we concluded that the groups’ meeting alone—where none of the co-conspirators
dissented from the objectives discussed—was sufficient to demonstrate a “collective venture”
for purposes of providing sufficient evidence of an agreement to join a single conspiracy. Id. at
477.
The record before us is replete with evidence that Fox and Croft agreed to kidnap
Governor Whitmer from her lakeside home provided the right opportunity presented itself. Like
Amawi, Fox explicitly stated his intention to kidnap the governor to Croft and others. And
similar to the defendants in Amawi, Fox and Croft’s agreement formed as they discussed plans to
carry out the venture. But the planning did not stop there. The evidence of an agreement
extended well-beyond a single meeting and training. See id. at 477. Defendants conducted
multiple reconnaissance operations near Governor Whitmer’s home. From their observations
during reconnaissance, Fox hatched what he called the “perfect” plan, which involved launching
a boat or two, leaving a trailer in the water, disabling the governor’s security detail to take her
into their custody, taking her out into Lake Michigan and dropping the boat’s motor, returning in
the second boat to the waiting trailer, and escaping. To solidify the plan, Fox drafted a detailed
map of the governor’s street, the water route to her home from across the lake, and the distance
of the police station—in miles and minutes—from the home.

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Moreover, in addition to gathering the group for a second reconnaissance of the
governor’s home on the evening of September 12, 2020, Fox also explicitly agreed with Croft’s
plan to kidnap the governor from Birch Lake and transport her to Lake Michigan, stating:
“That’s what I’m saying. She has to be out of the lake. Birch Lake[,]” while noting that there
was easy access to Lake Michigan. (Gov. Ex. 251). Considering the multiple meetings,
reconnaissance missions, fine-tuning of plans on how to obtain physical custody of the governor,
and arrangements to purchase explosives to assist with the get-away, a rational juror could find
that Fox’s ideas were not merely “fanciful” and “fantastic” musings, but instead were sufficient
to demonstrate a specific and common goal to kidnap Governor Whitmer. Further, his
participation at these meetings, trainings, and reconnaissance missions, during which he never
once registered any objection to the stated goal, is sufficient circumstantial evidence that he
agreed with others to carry it out.
Fox also argues that there was no agreement because there were no specifics as to timing;
namely, “when the mission was to occur.” (ECF 26, Fox Appellant Br. 57). This argument is
unavailing. A lack of a specific day and time does not defeat the existence of a conspiratorial
agreement; the focus is on whether there was a meeting of the minds for a criminal purpose. See
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.”); see
also Amawi, 695 F.3d at 476 (explaining that knowledge of “every detail” is not required; “the
government must prove that each defendant adopted the conspiracy’s main objective.”). In any
event, Fox specified that the kidnapping mission was to occur before the 2020 presidential
election out of concern that Governor Whitmer might receive a cabinet position appointment
after the election, in which case they would face a heightened level of security. On September
13, 2020, and again on September 19, 2020, Fox emphasized this point, stating: “Well we need
all the reps we can get, have 6 weeks til election and one week is ftx so let’s utilize these 5
weekend[s] best we can.” (Gov. Ex. 443). Hence, there was evidence of an established
timeframe for the kidnaping. Fox offers no evidence to suggest otherwise.

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Croft’s arguments fare no better. First, Croft maintains that he did not enter into an
agreement because there was no plan of action on which to agree. As discussed above, a rational
juror could find that there was a plan of action. In fact, at the Cambria FTX, Croft fashioned the
initial kidnapping plan, which included “tak[ing] out [] her armed guard” and “broach[ing]” the
Governor’s home. (Gov. Ex. 108). Croft also participated in the second reconnaissance of
Governor Whitmer’s home to conduct surveillance in preparation for the kidnapping. When he
gathered with Fox and others the following morning, Croft not only agreed to, but he also
refined the plan—to which Fox and the others agreed—to take Governor Whitmer and transport
her from Birch Lake to Lake Michigan. Croft’s agreement and commitment to this common
goal is perhaps best illustrated by his statement to an informant that in the event something went
wrong, the informant would have to be ready to “walk away from life.” (Gov. Ex. 257).
Moreover, whether every detail had been worked out is not our measure. Again, the government
need only prove that Croft adopted the “main objective.” Amawi, 695 F.3d at 476. His
attendance at meetings, trainings, and reconnaissance missions along with his efforts to fine-tune
the details of the kidnapping plan show that he did.
Croft also argues that he could not have agreed to join the conspiracy because he was
merely present during some of the discussions and was not trusted by his co-conspirators. But
this argument is belied by the record. It is true that “[m]ere presence at the crime scene is
insufficient” to prove that a defendant had the requisite knowledge and intent to join a
conspiracy. United States v. Christian, 786 F.2d 203, 211 (6th Cir. 1986) (citing United States v.
Kincade, 714 F.2d 1064, 1065 (11th Cir. 1983) (“Although mere presence alone is insufficient to
support a guilty verdict, presence is a material and probative factor which the jury may consider
in reaching its decision.”)). Consequently, courts must distinguish between someone who is
merely present during a criminal act and someone who is present but also has criminal
culpability. As a longstanding principle, “[a]cts 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 (quoting United States v. Walls, 293 F.3d 959, 967 (6th Cir. 2002)).
Here, Croft was not merely present during criminal activity. In addition to attending
meetings to discuss the kidnap plans, Croft was a primary contributor to them. And he was

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physically active in undertaking overt acts toward accomplishing the objectives of the
agreement. For instance, on the night of the second reconnaissance, Croft went to “get[] eyes on
the bridge” that he planned to bomb. (R. 843, PageID 15714). He also helped locate Governor
Whitmer’s home and planned the water-derived escape route that the group would take after the
kidnapping.
Croft describes his discussions of the plans as his expression of “unconventional”
political views, mere “rhetoric,” and “hyperbole,” which are protected speech under the First
Amendment. (ECF 28, Croft Appellant Br. 6, 32, 38–40). Irrespective of any protection such
speech may otherwise enjoy under the United States Constitution, “[t]he First
Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a
crime or to prove motive or intent.” Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993).
We faced a similar argument in Amawi, where the defendant argued that the district court
abused its discretion by rejecting a jury instruction stating that the defendant could only be
convicted of conspiracy to kill U.S. military personnel if his speech was not protected under the
First Amendment. 695 F.3d at 482. For instance, after agreeing to undergo military training to
prepare for attacks against military personnel, Amawi stated that the “fight is in the . . . land of
the Army” and asked a co-conspirator if he had the “weapons ready,” while also offering to fund
the operation. Id. at 476. And at some point, Amawi also conveyed his interest in IED training.
Id. Despite his argument that this language was protected under the First Amendment as
freedom of speech, freedom of association, and freedom of religion, this court was not
convinced. Instead, we upheld the district court’s decision not to issue the proposed jury
instruction, emphasizing that “although the conspiracy was closely related to, and indeed proved
by, many of the defendants’ conversations about political and religious matters, the conviction
was based on an agreement to cooperate in the commission [of] a crime, not simply to talk about
it.” Id. at 482 (emphasis added). And because the crux of a conspiracy involves “[f]orming an
agreement to engage in criminal activities,” and not “simply talking about religious or political
beliefs,” his speech related to the crime was not protected by the First Amendment. Id. A
defendant cannot use the First Amendment as a shield to disguise criminal conduct; statements
relevant to a conspiracy may be heard and weighed by a jury provided they are admissible.

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As discussed, there is ample evidence in the record to establish Croft’s statements as
evidence of a conspiracy to kidnap and not simply discussions of “political views,” “rhetoric,” or
“hyperbole.” See id. at 482. Thus, to the extent that the government relied on Croft’s own
statements to demonstrate his agreement to join the conspiracy, such speech was not
constitutionally protected.
Defendants also maintain that the government failed to demonstrate that they committed
overt acts towards the alleged conspiracy. “It is a basic tenet of conspiracy law that an overt act
in furtherance of a conspiracy need not be illegal itself.” United States v. Jerkins, 871 F.2d 598,
602–03 (6th Cir. 1989). And we impose “no requirement that the defendant himself commit the
overt act.” United States v. Bradley, 917 F.3d 493, 505 (6th Cir. 2019). Rather, “[a]ll that must
be prove[n] for a conviction is that one of the conspirators . . . knowingly committed at least one
overt act charged in the indictment . . . [and] that such overt act was knowingly done in
furtherance of some object or purpose of the conspiracy as charged.” Id. (internal quotation
marks omitted).
The record shows that both Fox and Croft also committed overt acts in furtherance of the
conspiracy. For instance, Fox traveled to and conducted surveillance on Governor Whitmer’s
lakeside property on two separate occasions, he attended an FTX where he trained in a “shoot
house” constructed to simulate the Governor’s home, he ordered explosives from an undercover
federal agent, he inspected the bridge near the Governor’s home with plans to detonate bombs to
prevent law enforcement from reaching the area while the group carried out the kidnapping, and
he assembled a kidnapping kit comprised of a knife, flex cuffs, duct tape and rope.
Croft, for his part, recruited Fox to form the Michigan Regiment of his Second
Continental Army, with the express goal of targeting state governors. Croft also drove from his
home in Delaware to Ohio, Wisconsin, and Michigan to recruit, plan, and train, for the
kidnapping. Moreover, Croft suggested the use of his grenade launcher against Governor
Whitmer’s security detail to prevent them from interfering with the plan to kidnap her. Given
the evidence that Defendants had both an agreement to kidnap Governor Whitmer and
committed numerous overt acts in furtherance of the agreement, their challenges based on the
sufficiency of the evidence fail.

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Resisting the overwhelming evidence of a conspiracy, Defendants propose additional
arguments. They argue that the government was required to affirmatively establish that
Governor Whitmer did not consent to being kidnapped and to prove that both he and Croft
would “benefit”2 from kidnapping her. Both arguments are misguided for the same reason.
Supreme Court precedent makes clear that the government’s burden in a conspiracy case is
simply to show that each member of a conspiracy agreed to participate in what he knew to be a
collective venture directed toward the commission of a crime. See Salinas v. United States, 522
U.S. 52, 65 (1997). The government is not, however, required to prove all the elements of the
underlying crime. See United States v. Phillips, 872 F.3d 803, 806 (6th Cir. 2017) (“The
government need not prove the elements of fraud to convict Phillips of conspiracy. ‘It is
elementary that a conspiracy may exist and be punished whether or not the substantive crime
ensues.’” (quoting Salinas, 522 U.S. at 65)). This is because the essence of a conspiracy is that
there must be “an agreement to commit an unlawful act,” and as the Court explained, this
agreement is “‘a distinct evil,’ which ‘may exist and be punished whether or not the substantive
crime ensues.’” United States v. Jimenez Recio, 537 U.S. 270, 274–75 (2003) (emphasis added)
(first quoting Iannelli, 420 U.S. at 777; and then quoting Salinas, 522 U.S. at 65). Because there
is no requirement that the government prove the underlying crime of kidnapping, these
arguments fail as a matter of law.
Based on the record, a rational jury could infer that Defendants agreed to kidnap
Governor Whitmer from her home and transport her to Lake Michigan and engaged in numerous
overt acts in furtherance of the agreement, amounting to a textbook conspiracy.
2.
Conspiracy to Use a Weapon of Mass Destruction. Under 18 U.S.C. § 2332a(a)(2), it is
illegal for a person to, “without lawful authority, use[], threaten[], or attempt[] or conspire[] to
use, a weapon of mass destruction . . . against any person or property within the United States.”
2Under 18 U.S.C. § 1201(a), an individual commits a kidnapping if he “unlawfully seizes, confines,
inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ” We
have held that the word “otherwise” is interpreted broadly to mean that “it is sufficient for the government to show
that the defendant acted for any reason which would in any way be of benefit.” Small, 988 F.3d at 250 (citing
Gooch v. United States, 297 U.S. 124, 128 (1936)).

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For purposes of this provision, a “weapon of mass destruction” is defined as “any destructive
device as defined in section 921.” Id. § 2332a(c)(2)(A). A “destructive device” under § 921 is
“any explosive . . . bomb,” 18 U.S.C. § 921(a)(4)(A)(i), and “any combination of parts either
designed or intended for use in converting any device into any destructive device described in
subparagraph (A) . . . from which a destructive device may be readily assembled,” id.
§ 921(a)(4)(C). To prove a conspiracy to use a weapon of mass destruction under
§ 2332a(a)(2)(C), the government must show: (1) an agreement between two or more
individuals to use a weapon of mass destruction; (2) the defendant knowingly and voluntarily
joined the agreement; and (3) the defendant “travel[ed] in or cause[d] another to travel in
interstate . . . commerce in furtherance of the offense.” 18 U.S.C. § 2332a(a)(2)(C); United
States v. Alebbini, 979 F.3d 537, 544 (6th Cir. 2020).
While Fox provides no substantive arguments concerning his WMD conviction, he does
state, generally, that there is insufficient evidence to convict him on both Counts 1 and 2.
However, because Fox does not develop this argument as to Count 2, it is forfeited, and we need
not address his challenge. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019) (“[A] defendant
forfeits an argument by . . . identifying it without pressing it.”) (citations omitted)).3 Croft, on
the other hand, argues that his WMD conspiracy conviction “fails,” because there was no
agreement involving Croft to obtain or use a WMD on the bridge leading to Governor Whitmer’s
home. Croft also describes his viewing of the explosives footage with “excitement” and his
presence at the second reconnaissance of the Governor’s home as, “at most[,] attendance at an
overt act” involving the conspiracy to use WMDs. (ECF 28, Croft Appellant Br. 37, 45). The
record, once again, belies his arguments. Regarding the agreement, during his first in-person
meeting with Fox, Croft told the group that he was planning to “level buildings, burn
motherf[]ckers’ houses down with them inside of it . . . and . . . go terrorize people.” (Gov. Ex.
3Even if he had not forfeited the argument, there was ample evidence to support his conviction. After the
co-conspirators agreed they needed an explosives expert to complete the plan, Fox attempted to recruit a
bombmaker, who refused to participate. Believing “Red” to be an alternative supplier, Fox ordered $4,000 worth of
explosives, crawled under the bridge near Governor Whitmer’s home in search of a place to detonate them, and
photographed it. Then, Fox not only encouraged other co-conspirators who were “down with the cause” to
contribute toward the $4,000 price tag, but also brought a good faith down payment to complete the purchase on the
day of his arrest. (Gov. Ex. 223).

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35). Fox followed-up with the observation that in order to carry out the kidnapping, they were
going to require a demolitions expert and explosives, with no apparent objection from Croft.
Croft also traveled in interstate commerce in furtherance of the WMD conspiracy. He
drove from Delaware to the Cambria FTX in Wisconsin to conduct demolitions training for the
group in order to “have a chance against” Governor Whitmer’s security detail. (Gov. Exs. 84,
85). During this trip, he took a bombmaking kit to the FTX and attempted to make an IED with
Garbin and Franks. Months later, at the Luther FTX, Croft again showed up with an IED kit.
And this time the group was successful: Croft detonated an IED with pennies that could pierce
the skin at 25 feet in distance and used targets of human silhouettes to test the lethal nature of the
IED. Based on this evidence, a rational juror could infer that Croft conspired to use a WMD.
3.
Possession of an Unregistered Destructive Device. The National Firearms Act subjects
certain firearms to various tax, registration, and other regulatory requirements, criminalizing
violation of its provisions. See 26 U.S.C. § 5861. Section 5861(d) makes it unlawful for a
person to “possess a firearm which is not registered to him in the National Firearms Registration
and Transfer Record.” Id. § 5861(d). Congress has defined the term “firearm” broadly to
include any “destructive device.” 26 U.S.C. § 5845(a)(8). And similar to the definition of a
WMD, a “destructive device” includes “any explosive, incendiary . . . bomb.” Id. § 5845(f). In
reviewing potential violations of the Act, we have determined that “a destructive device need not
operate as intended to satisfy the statute,” because possession, coupled with it being
unregistered, makes its possession unlawful. United States v. Unthank, 107 F. App’x 625, 629
(6th Cir. 2004) (citing United States v. Rushcamp, 526 F.2d 1380, 1382 (6th Cir. 1975)).
Croft does not challenge whether the IED underlying his conviction was in fact a
destructive device for purposes of the statute or even if it was registered with the federal
government. In fact, Croft proffers no arguments at all to support his challenge to the sufficiency
of the evidence on this count. So this argument is forfeited. Berkshire, 928 F.3d at 530.
Nonetheless, a rational jury could conclude that Croft possessed an unregistered IED. Croft not
only described the device in recorded conversations, but eyewitnesses—including his own

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girlfriend—placed him at the scene where he detonated the IED. After searching the blast site,
an FBI expert examined the evidence collected and testified that the bomb was indeed a
destructive device. A records specialist with the Bureau of Alcohol, Tobacco, Firearms and
Explosives established that the device was unregistered. Finally, agents found supplies used for
making IEDs in Croft’s home that matched those found at the blast site. Croft does not dispute
this evidence on appeal. As such, we hold that there was sufficient evidence to show that Croft
possessed an unregistered destructive device.
4.
Government Entrapment. Croft4 maintains that even if we conclude that the government
satisfied its burden to prove the conspiracy counts, the FBI agents entrapped him, which
invalidates his conviction. Croft argues that the government’s evidence at trial was insufficient
to show that he was ‘“disposed to commit the criminal act prior to first being approached by
Government agents.” Croft Appellant Br. at 37 (quoting Jacobson v. United States, 503 U.S.
4The government argues, and we agree, that Fox did not raise the sufficiency of the evidence to defeat the
entrapment defense on appeal. As such, any argument on this issue by Fox is deemed waived. See United States v.
Carter, 89 F.4th 565, 568 (6th Cir. 2023) (“We do not consider waived arguments because the waiving party has
conceded that there is no error to review.”). Even if we were to reach this issue, the evidence against Fox was
sufficient to show that he was predisposed to kidnap Governor Whitmer before being approached by government
agents. Prior to the initial meeting in Dublin, Ohio, Fox repeatedly posted on Facebook about wanting to initiate the
“boogaloo,” about the III%ers, and about wanting to use “brute f[]cking force. Physical violence” to “win our rights
back and take back what is ours.” (R. 838, PageID 14474–77; Gov. Exs. 435, 437, 438). Fox also posted videos
and pictures of himself with guns and cuffs threatening to “take our country back” from politicians. (R. 838, PageID
14438, 14474; Gov. Ex. 3). And after contact with Croft, Fox began sending private messages concerning “put[ting]
together a team” to “get these f[]cking governors and arrest them and put ‘em on trial for their crimes,” concluding
that we’re gonna have to do it the f[]cking, old, citizens’ arrest way.” (R. 838, PageID 14499; Gov. Ex. 20). Fox
subsequently continued to threaten violence against governors, posting a video on Facebook saying that people
should direct their anger toward the “top” of “our tyrannical f[]cking government.” (R. 838, PageID 14502–03;
Gov. Ex. 22). And leading up to his first contact with a government informant he was already talking about being
“ready to go snatch a motherf[]cker.” (R. 838, PageID 14514–15; Gov. Ex. 491).
Fox not only talked, but also avidly participated in the plot from its infancy until his arrest. Fox proposed
the idea of kidnapping Governor Whitmer from her vacation home. (R. 838, PageID 14543). He avidly participated
in every key meeting, telling Croft that he wouldn’t miss one meeting even though it might cost him a job. (Gov.
Ex. 488). Fox also proposed, planned, and participated in both reconnaissance trips to Governor Whitmer’s home.
(Gov. Ex. 113; 223). And during these reconnaissance trips, he gleefully took steps toward kidnapping Governor
Whitmer. (Gov. Ex. 197, 199). Those are hardly the actions of a reluctant innocent who has unwarily been
hoodwinked into criminal behavior by a government agent. Taking Fox at his own words, there would be more than
enough evidence to demonstrate that he was predisposed to commit kidnapping prior to any contact with
government informants. And looking at Fox’s behavior post-contact with the government only reinforces that Fox
was an avid participant in the kidnapping conspiracy.

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540, 549 (1992)). While Croft focuses most of his brief on predisposition, he also argues that the
government used “staggering” and “excessive” pressure to induce and entrap him. Croft
Appellant Br. at 41. “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 [g]overnment
may prosecute.’” United States v. Harris, 9 F.3d 493, 497 (6th Cir. 1993) (quoting Jacobson,
503 U.S. at 540). An entrapment defense “requires proof of two elements: (1) government
inducement of the crime, and (2) lack of predisposition on the part of the defendant to engage in
the criminal activity.” United States v. Khalil, 279 F.3d 358, 364 (6th Cir. 2002) (citing United
States v. Nelson, 922 F.2d 311, 317 (6th Cir. 1990)). Both must be present.
“An ‘inducement’ consists of an ‘opportunity’ plus something else—typically, excessive
pressure by the government upon the defendant or the government’s taking advantage of an
alternative, non-criminal type of motive.” United States v. Hood, 811 F. App’x 291, 298 (6th
Cir. 2020) (quoting United States v. Dixon, 396 F. App’x 183, 186 (6th Cir. 2010)). “[T]actics
typically found by courts to be excessive[] includ[e] threats, ‘dogged insistence,’ appeals to
sympathy, or ‘preying upon the love and loyalty of [a] special relationship.’” Id. at 299
(citations omitted); United States v. Geralt, 682 F. App’x 394, 406 (6th Cir. 2017) (inducement
requires “evidence of repeated and persistent solicitation” or “excessive pressure by the
government” (quotation omitted)). “[M]erely afford[ing] an opportunity or facilities for the
commission of the crime” is not enough to prove that an inducement occurred. Mathews v.
United States, 485 U.S. 58, 66 (1988). Similarly, a showing that the government essentially
“made the crime easier” or “participated in the crime in some way” does not prove that a
defendant was unlawfully entrapped; a defendant must show that he was not inclined to commit
the crime. Sixth Circuit Pattern Jury Instructions § 6.03(3); Jacobson, 503 U.S. at 547 n.1
(discussing jury instructions that were upheld).
Predisposition, referred to as “the principal element in the defense of entrapment, 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 (internal
citations and quotation marks omitted). Predisposition, “by definition, [involves] the defendant’s

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state of mind before his initial exposure to government agents.” United States v. McLernon, 746
F.2d 1098, 1112 (6th Cir. 1984) (internal quotation marks and citation omitted); United States v.
Johnson, 855 F.2d 299, 303 (6th Cir. 1988).
To determine if a defendant was predisposed to commit a crime, we weigh the following
non-exhaustive factors:
[1] the character or reputation of the defendant, including any prior criminal
record; [2] whether the suggestion of the criminal activity was initially made by
the Government; [3] whether the defendant was engaged in the criminal activity
for profit; [4] whether the defendant evidenced reluctance to commit the offense,
overcome only by repeated Government inducement or persuasion; and [5] the
nature of the inducement or persuasion supplied by the government.
Khalil, 279 F.3d at 365 (quoting United States v. Barger, 931 F.2d 359, 366 (6th Cir. 1991)). As
we have held, “[t]he most important factor in determining the lack of predisposition . . . is
whether the defendant evidenced reluctance to engage in criminal activity which was overcome
by repeated [g]overnment inducements.” McLernon, 746 F.2d at 1113 (internal quotation marks
and citation omitted); United States v. Khan, No. 20-1179, 2021 WL 4026781, at *5 (6th Cir.
Sept. 3, 2021) (same); see also United States v. Sherrod, 33 F.3d 723, 725 (6th Cir. 1994)
(emphasizing that the Sixth Circuit Pattern Jury Instructions repeatedly place significance on the
idea that the defendant cannot “already [be] willing” to commit a crime). Importantly, as is the
case here, a defendant “whose predisposition to commit a particular crime was proved beyond a
reasonable doubt, [cannot] defend against prosecution on the basis that the government induced
him to commit that crime, no matter how strong the inducement.” United States v. Tucker,
28 F.3d 1420, 1422 (6th Cir. 1994) (emphasis added). In other words, a finding of predisposition
wholly defeats an entrapment defense.
The record demonstrates that Croft was predisposed to join both conspiracies. Regarding
his character and reputation, as Croft himself acknowledges, he has “embraced an
antigovernment philosophy” that uses “III% symbols,”5 which references a militia group that has
adopted a similar stance. (ECF 28, Croft Appellant Br. 7). So committed was he to its precepts,
5See generally Sarah Childress, A Guide to the New Militia Movement, PBS (May 17, 2017),
https://www.pbs.org/wgbh/frontline/interactive/militia-movement/. [https://perma.cc/LZ2J-CZCC].

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that he also had the III% symbol tattooed onto this hand. In his briefing, Croft admits that he
also wore a Hawaiian “boogaloo”6 shirt—boogaloo is a movement centered around the idea of
civil war between citizens and the federal government—to demonstrate his anti-government
association. And as early as 2019, Croft began discussing the idea of a “flash gathering in Ohio”
with “two weeks max notice,” which would be “[t]oo quick for the feds to cut red tape and
infest.” (R. 838, PageID 14492). The purported goal was to begin discussions of acts of
terrorism. In a recorded conversation, Croft discussed the fact that he had begun plotting to
kidnap a state governor since approximately December 2019, stating that they should “take the
militia and go grab that f[]cking governor right where he lives at.” (Gov. Ex. 112*). Moreover,
in a private Facebook message, Croft posted that executing state governors would ultimately lead
to a second American Revolution. In particular, Croft explained that if only one governor were
to be hung, it would cause a “domino[]” effect. (R. 844, PageID 15945). In May 2020, Croft
also posted a picture of a noose, followed by writing: “Which Governor is going to end up
dragged off, and hung for treason first?” (Gov. Ex. 360). And leading up to the meeting in
Dublin, Ohio, Croft told Fox that the meeting was to discuss attack plans. All these incidents
occurred before Croft ever met any government informants. This factor weighs in favor of
Croft’s predisposition.
Regarding the suggestion of criminal activity, there is insufficient evidence in the record
to establish that the government planted the idea of kidnapping and harming governors, including
Governor Whitmer, or the use of bombs. In fact, the initial suggestion to target state governors
originated with Croft in 2019, and the plan to kidnap Governor Whitmer, in particular, originated
with Fox; Croft later agreed that she was a “target of opportunity.” (R. 838, PageID 14543).
While there is no evidence in the record that Croft engaged in the conspiracy for a profit, he was
vehement about seeing that Governor Whitmer suffered, even if it meant “walk[ing] away from
life.” (Gov. Ex. 257). There is also no evidence showing that Croft had any sense of reluctance
at any point during the planning and preparation for the kidnapping. Not once does the record
reflect, or does Croft argue, that Croft expressed any hesitation or doubts about engaging in
6See generally Matthew Kriner & Jon Lewis, The Evolution of the Boogaloo Movement, 14 CTCSentinel
22 (2021), available at https://ctc.westpoint.edu/the-evolution-of-the-boogaloo-movement/. [https://perma.cc/2TDE-
BPZ3].

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criminal conduct. And Croft’s level of involvement, including building and detonating a bomb,
purchasing kidnapping supplies, and participating in the FTXs would suggest otherwise. See
McLernon, 746 F.2d at 1113 (lack of reluctance carries the most weight in our predisposition
determination); see also United States v. Anderson, 55 F.4th 545, 558 (7th Cir. 2022)
(concluding that a defendant who “never expressed reluctance but was instead the instigator of
the . . . scheme” lacked grounds for claiming that the agent’s communications entrapped him).
The fact that Croft was one of the progenitors of the kidnapping plan coupled with his lack of
reluctance in seeing it through, cuts against a lack of predisposition.
“The nature-of-the-inducement factor concerns the means the government used to
persuade its target to violate the law.” United States v. White, 815 F. App’x 27, 30 (6th Cir.
2020) (citing United States v. Barger, 931 F.2d 359, 361, 367 (6th Cir. 1991)). Croft generally
argues that the FBI was “behind every key event,” including the FTXs and meetings Croft
attended, both reconnaissance events, and the viewing of the video of the WMDs. (Croft
Appellant Br. at 40). Yet, members of the conspiracy testified that they never saw informants
Chappel or Robeson influencing Defendants, including instructing Defendants on what to do or
suggesting any plans to kidnap. Rather, it was Defendants who designed and developed the
ideas of antigovernment violence. This included specific details of the plans, such as Fox and
Garbin explaining that the kidnapping should be completed prior to the November election,
suggesting the use of explosives to bomb the bridge entering the city to prevent law enforcement
from impeding their plans, and the use of a boat to extract Governor Whitmer and transport her
to Lake Michigan.
Based on the evidence presented at trial, the jury saw and heard a host of video and audio
recordings of Defendants promising violence, planning and participating in trainings, bringing
their own weapons and material, and plotting the abduction without reluctance. The weight of
the McLernon factors tilts heavily in the government’s favor. Thus, the government readily
established that Croft was predisposed to the kidnapping of governors, and the weak evidence of
inducement he has adduced cannot detract from the strong evidence of predisposition. As such,
his claim for entrapment fails.

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B.
Denial of a Remmer Hearing. A district court’s decision not to conduct an evidentiary
hearing is reviewed for abuse of discretion. See Williams v. Bagley, 380 F.3d 932, 977 (6th Cir.
2004) (quoting Alley v. Bell, 307 F.3d 380, 389 (6th Cir. 2002)).
The Sixth Amendment of the United States Constitution provides that a criminal
defendant has a right to be tried by an impartial jury. U.S. Const. amend. VI. “The presence of
even a single biased juror deprives a defendant of their right to an impartial jury.” United States
v. Lanier, 988 F.3d 284, 294 (6th Cir. 2021) (quoting Williams, 380 F.3d at 944) (cleaned up). In
criminal cases, “any private communication, contact, or tampering directly or indirectly, with a
juror during a trial about the matter pending before the jury is, for obvious reasons, deemed
presumptively prejudicial.” Remmer v. United States, 347 U.S. 227, 229 (1954). And in such
cases, trial courts have an affirmative duty to investigate a juror’s alleged misconduct. See
United States v. Perry, 438 F.3d 642, 651 (6th Cir. 2006) (citation omitted).
Courts are also required to hold a Remmer hearing when “a colorable claim of extraneous
influence has been raised,” to afford a defendant “a meaningful opportunity” to prove actual bias
of the juror. United States v. Herndon, 156 F.3d 629, 635, 637 (6th Cir. 1998). However, not all
“extraneous influence[s]” rise to the level of a “colorable claim,” triggering the requirement for a
Remmer hearing. United States v. Kechego, 91 F.4th 845, 850 (6th Cir. 2024) (“[A] claim of
external influence is not colorable merely because it is possible.”); see also United States v.
Lanier, 870 F.3d 546, 549 (6th Cir. 2017) (“[A] Remmer hearing is not necessary in every
instance of possible unauthorized third-party contact.”). As we have recently explained, “[T]he
claim must present a likelihood of having affected the verdict and must be supported by credible
evidence . . . .” Kechego, 91 F.4th at 850 (internal quotation marks and citations omitted).
On the second day of testimony, the district court held an in-camera hearing to address
allegations of juror bias and misconduct based on a phone call received by Croft’s counsel.
According to Croft’s attorney, a juror had told the caller, who was a co-worker, that the juror
“had already determined that the Defendants were guilty, and [the juror] was going to hang
them.” (R. 848, PageID 16307). After overruling objections and denying defense counsels’

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request to question the juror, the district court held a meeting later that day and explained that the
court’s jury clerk interviewed the caller who admitted to not having actually spoken with the
juror. Based on the clerk’s interview, the caller did not know whether the individual was serving
as a member of the jury. The caller’s purpose in speaking out was just to convey what was said
by a different co-worker who did not want to be identified.
After conducting its own in camera interview with the juror and observing that the juror’s
behavior during the proceedings was inconsistent with claims of bias, the district court ultimately
found the juror to be credible. The court first noted that the juror’s demeanor and behavior lent
itself to a finding of credibility. The court inquired as to whether the juror made any statements
about the trial or spoke to any co-workers about it, which the juror repeatedly denied. The court
also noted the following: (1) that the juror’s answers were consistent with those provided during
voir dire; (2) that the juror could set aside any preconceived notions; (3) that the juror’s
interactions with other jurors did not provide any basis to believe that the juror had an intent to
manipulate the proceedings; and (4) that the juror’s behavior in the jury box—which included
attentiveness to the parties’ evidence and note-taking during the proceedings—did not suggest
any predetermined decisions. Thus, the court satisfied itself that the juror would be able to
proceed in a fair and impartial manner, as promised. See, e.g., United States v. Williams, 195
F.3d 823, 827–28 (6th Cir. 1999) (affirming the district court’s decision not to conduct a Remmer
hearing because the juror assured the court that she could remain impartial).
Defendants challenge this finding arguing that the court abused its discretion by not
holding a Remmer hearing and not allowing counsel to question the juror themselves. They
argue that these failures deprived them of a “meaningful opportunity” to show that the juror was
biased. See Cunningham v. Shoop, 23 F.4th 636, 649, 652 (6th Cir. 2022) (explaining that “a
prima facie showing of juror bias entitles a defendant to an evidentiary hearing”). Croft
maintains that he presented credible and plausible allegations that the juror was biased, which
amounted to a “colorable claim” for purposes of Remmer. However, for a claim to be
“colorable,” it must be “credible,” not merely plausible. See Kechego, 91 F.4th at 850. In
addition to the allegedly “unmistakable bias and prejudgment” of the juror’s purported
statements, (ECF 28, Croft Appellant Br. 51), Croft presented a post-trial affidavit from a private

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investigator who further inquired into the caller’s claims against the juror. The affidavit included
the following information: the caller knew of several other co-workers who allegedly heard the
juror’s comments; the juror’s mother also worked for the same employer and the co-workers
were afraid of losing their jobs, despite never claiming that the juror’s mother had any authority
to terminate them; the caller opined that the juror’s political views were “far-left leaning,” so he
“obviously had his mind already made up” (R. 745-1, PageID 9752, ¶ 9); and the unnamed
individuals also feared retaliation from “BLM” (“Black Lives Matter”) if their names were
revealed to the public. (Id. at 9753 ¶ 16). The district court, however, cannot be faulted for
failing to consider this post-trial affidavit during trial because Croft placed it before the court
only after trial had ended.
To overcome the district court’s credibility determination, defense counsel offered a
double-hearsay report from a caller who did not hear statements from the juror directly. The
caller was also unsure if the juror was the person who allegedly made the statements. Adding
further obscurity to this information, the co-worker who allegedly heard the juror’s statement
wanted to remain anonymous and was unwilling to speak to the jury clerk. And the individual
refused to identify the other co-workers so that the court clerk could conduct a private interview
to corroborate the allegations. “[B]ecause the district court, as the finder of fact, is best placed to
determine witness credibility, this court will defer to the district court’s credibility
determinations absent reason to believe that they are clearly erroneous.” United States v. Vance,
956 F.3d 846, 853 (6th Cir. 2020) (internal citations and quotation marks omitted). Defendants
do not proffer any credible evidence to support their claim of juror bias, and as such, the district
court did not abuse its discretion in denying Defendants’ request for a Remmer hearing.7
C.
Time Restrictions for Cross-Examination. We review allegations of Confrontation
Clause violations de novo. United States v. Roberts, 84 F.4th 659, 666 (6th Cir. 2023).
7To the extent that Croft’s counsel challenges his general ability to be present for the district court’s
interview, the Supreme Court has already determined 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 communication.” United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam) (quoting Rushen v.
Spain, 464 U.S. 114, 125–26 (1983) (Stevens, J., concurring in judgment)).

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However, where the allegations are based solely on arguments regarding a trial court’s “time
management decisions,” we review for abuse of discretion. Ross v. Parrot’s Landing, Inc., No.
21-1774, 2022 WL 7367263, at *3 (6th Cir. Oct. 13, 2022); see also Dorsey v. Parke, 872 F.2d
163, 166 (6th Cir. 1989) (“[E]ven when the core values of the Sixth Amendment are invaded by
a denial of cross-examination . . . the standard of review is abuse of discretion, abuse being
found where the trial court has interfered with the defendant’s constitutional right.”).
The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI. The defendant’s ability to confront his accusers means that he
enjoys the right to cross-examine those witnesses. See Pointer v. Texas, 380 U.S. 400, 404
(1965). The rights conferred by the Confrontation Clause, however, are not unfettered. See
Dorsey, 872 F.2d at 166 (“[T]he Sixth Amendment has not been construed to give criminal
defendants absolute control over cross-examination.”); see also United States v. Peterson, 188
F.3d 510 (6th Cir. 1999) (unpublished table decision) (same). “Instead, the Constitution
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.’” Matthews, 31 F.4th
at 452 (quoting Jordan v. Warden, Lebanon Corr. Inst., 675 F.3d 586, 594 (6th Cir. 2012)); see
also Delaware v. Fensterer, 474 U.S. 15, 20 (1985). “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).
Defendants maintain that the district court abused its discretion and violated their Sixth
Amendment right to confront the government’s witness, co-conspirator Kaleb Franks, by placing
arbitrary time limits on the cross-examination. Croft argues that the time limit was arbitrary
because it was imposed “without warning.” (ECF 28, Croft Appellant Br. 68). The record,
however, reflects that defense counsel were warned on multiple occasions that time limits may
be imposed. On the second day of witness testimony (August 11, 2022), the court expressed its
initial concern that the trial would exceed the two-week time frame. In chambers, the court

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conveyed its surprise that the defense’s line of questioning was not more focused, particularly
regarding the duplicative nature of the questions. The following day, the court warned the
parties that it would “think hard over the weekend about time limits” because their use of time
during examinations was getting “ridiculous.” (R. 840, PageID 15020). During the colloquy,
the court noted that defense counsel’s cross-examinations were lengthy and cluttered with non-
germane questioning, which was causing the jury to “check[] out” of the proceedings. (Id. at
15020–21). The court also referenced “Judge Bertlesman’s rule of proportionality,” derived
from United States v. Reaves, 636 F. Supp. 1575 (E.D. Ky. 1986), which limited cross-
examination to the same duration used for the government’s direct-examination. (R. 840,
PageID 15020).
On August 14, 2022, the district court again mentioned the fact that jurors appeared
“checked out” during “needlessly long and repetitive lines of examination” and noted that it was
still considering Judge Bertlesman’s rule. (R. 711, PageID 8988 n.6). The following day, the
court again warned defense counsel that they had gone “through the entire litany of things the
jury has already heard” from a witness, reminding Fox’s counsel that the specific facts were
already admitted into evidence. (R. 841, PageID 15056–57). On August 16, Fox’s counsel
continued with the same line of questioning from a prior witness’s testimony, and the court
reminded him that he already had the information required to make his argument, warned about
unnecessary repetition of the questioning, and asked him to “move on.” (R. 842, PageID 15313–
17). Again, the court warned that it was “continuing to think about Judge Bertelsman.” (Id. at
15317). By the time Franks was slated to testify on August 17, the court announced that the
Bertelsman rule would be in effect for his examination—for both the government and the
defense. This meant that defense counsel would have 25 minutes each for cross-examination
because the government took 50 minutes on its direct. Because the parties were warned on a
least five occasions that time limits could be placed on a witness’s testimony, Croft’s assertion
that the limitation was arbitrary because he had no warning is baseless.
Next, Fox argues that if he had more time to cross-examine Franks, he would have
elicited testimony covering topics ranging from Franks’s role in the conspiracy to his arrest, and
how it allegedly impacted Fox’s entrapment defense. During the government’s direct

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examination of Franks, it covered many of the same points discussed with the government’s
other witness, co-conspirator Ty Garbin, who had just testified. This included eliciting testimony
regarding Franks’ agreement to enter the conspiracy (including the guilty plea), Defendants’
participation, and the lack of any government inducement. During cross-examination, both
defense counsel covered many of the same topics as the government, often overlapping in their
questioning.
Indeed, while this court acknowledges that “[c]ounsel often cannot know in advance what
pertinent facts may be elicited on cross-examination,” making them “necessarily exploratory,”
Dorsey, 872 F.2d at 167, on occasions where, as is the case here, counsel has advance knowledge
of pertinent facts and chooses to apportion examination time on evidence already in the record8
and other non-pertinent issues, they cannot successfully argue on appeal that if provided more
time, they would have elicited additional exculpatory evidence. See, e.g., McPherson, 506 F.
App’x at 390 (no abuse of discretion where counsel “was given adequate opportunity to explore
[the witness’s] conflicting statements, her credibility, and her observations on the day of the
shooting”); United States v. Spangler, 638 F. App’x 611, 613 (9th Cir. 2016) (no abuse of
discretion where the court cut off cross-examination when counsel’s questioning became
repetitive and counsel was provided with warnings); United States v. Muhammad, 928 F.2d
1461, 1467 (7th Cir. 1991) (rejecting the claim that counsel would have elicited exculpatory
testimony if provided more time when he knew he would be “potentially” under time restrictions
but focused on non-exculpatory issues).
Furthermore, the Supreme Court is clear that “[w]ithin limits, the judge may control the
scope of rebuttal testimony, may refuse to allow cumulative, repetitive, or irrelevant testimony,
and may control the scope of examination of witnesses.” Geders v. United States, 425 U.S. 80,
86–87 (1976) (internal citations omitted). As long as “truth and fairness are not . . . sacrificed,
the judge must exert substantial control over the proceedings.” Id. at 87. That is what happened
8In the district court’s order denying a motion for retrial, the court noted that, “[d]uring the first trial, four
defense counsel were able to cross examine this particular witness [Franks] within this time constraint and there was
no reason in the Court’s mind that two defense counsel needed more time in this case.” (R. 779, PageID 10219–20,
10238). Accordingly, the court concluded that 25 minutes a piece was enough time for defense counsel, given that
they had a prior opportunity to examine Franks.

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here. In addition to the fact that counsel chose to effectively squander their time despite the
court’s warnings, the court had the discretion to “exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403; United States v. Collins, 799 F.3d 554, 588 (6th Cir.
2015) (citation omitted) (trial courts have “very broad discretion in making this determination”).
The record shows that the court raised the issue of wasting time, presenting cumulative evidence,
and that the jury was “checking out” of the proceedings, which in retrospect, could have also
been prejudicial to Defendants’ right to receive a fair trial with an astute and attentive jury.
Finally, Fox attempts to distinguish the facts of this case from those in Reaves to support
his claim that the district court improperly imposed arbitrary time limits on his ability to cross-
examine the witness. Irrespective of these differences, as discussed, the facts in this record
support the district court’s decision given that it provided counsel with numerous warnings that it
would likely impose time limits on witness examinations, and defense counsel had ample time
and opportunity to effectively cross-examine Franks. We see no abuse of discretion.
D.
1. Hearsay Exemption Under Fed. R. Evid. 801(d)(2)(D). Defendants maintain that the
district court erred by limiting the scope of the admissibility of certain government informant
statements—only allowing those that were “regurgitations” of statements made by a federal
agent—pursuant to Federal Rule of Civil Procedure 801(d)(2)(D) and our holding in Branham v.
United States, 97 F.3d 835 (6th Cir. 1996). Generally, “[a] district court’s evidentiary rulings
will not be reversed absent a clear showing of abuse of discretion.’” United States v. Dunnican,
961 F.3d 859, 871 (6th Cir. 2020) (quoting United States v. Damrah, 412 F.3d 618, 625 (6th Cir.
2005)). “Abuses of discretion in evidentiary rulings . . . merit reversal only if the error is not
harmless—‘that is, only if the erroneous evidentiary ruling affected the outcome of the trial.’”
Id. (quoting United States v. Farrad, 895 F.3d 859, 875 (6th Cir. 2018)). A district court’s
determination as to whether proffered evidence constitutes hearsay is a question of law that we
review de novo. United States v. Johnson, 79 F.4th 684, 700 (6th Cir. 2023); M.J. ex. rel. S.J. v.
Akron City Sch. Dist. Bd. of Educ., 1 F.4th 436, 445 (6th Cir. 2021).

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“Hearsay” is defined as a statement that “(1) the declarant does not make while testifying
at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted in the statement.” Fed. R. Evid. 801(c). Hearsay is inadmissible at trial unless
otherwise provided by Congress, the rules of evidence, or other rules prescribed by the Supreme
Court. Fed. R. Evid. 802. The inadmissibility of hearsay under 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) (quoting Williamson v. United States, 512 U.S.
594, 598 (1994)). Such “dangers,” as we have explained, “are minimized for in-court
statements.” Id. Under Rule 801 a statement that is “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, the government
conceded that, for purposes of Rule 801(d)(2)(D), “the federal government is a party-opponent of
the defendant in a criminal case.” 97 F.3d at 851.9 Similarly, here, the government has never
argued, neither before us nor the district court, that it was not a party opponent. See Appellee Br.
at 102–04; R. 368, PageID 2423–25.
Prior to trial, Defendants filed a motion in limine to admit the out-of-court statements of
FBI agents and government informants as nonhearsay under Rule 801(d)(2)(D). Attached to the
motion was a 44-page spreadsheet containing 258 statements to which the government objected
as either hearsay, irrelevant, or both. After an evidentiary hearing, the district court granted in
part and denied in part Defendants’ motion. In reaching its decision, the court acknowledged
this circuit’s precedent in Branham, where the court considered confidential informant
statements to be nonhearsay because the informant was acting within his agency relationship,
and the government conceded that it was a party opponent. In an attempt to distinguish
9Some circuits do not treat government agents as a party opponent in criminal cases. See United States v.
Arroyo, 406 F 3d 881, 888 (7th Cir. 2005) (“government agents are not party-opponents for purposes of Rule
801(d)(2)”); United States v. Yildiz, 355 F.3d 80, 82 (2d Cir. 2004) (explaining that statements by government
agents “are historically unable to bind the sovereign”); United States v. Booker, 375 F. App’x 225, 230 (3d Cir.
2010) (explaining that statements by law enforcement officials “are not admissible on an admissions theory as
substantive evidence against the sovereign in a criminal prosecution”).

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Branham, the district court began by characterizing informants as being more like “independent
contractors” rather than agents or employees of the government. (R. 439, PageID 3012–13). It
then pointed to out-of-circuit authority contrary to Branham’s approach and explained that such
conflicting persuasive authority left the court hesitant to “expand” Branham. (Id.). The district
court then noted that, in United States v. Reed, 167 F.3d 984 (6th Cir. 1999), our court explained
that Branham does not mean “anything said” by an agent or confidential informant “would be
admissible.” Id. at 989 n.4. Following this line of thought, the district court reasoned that only
“where the informant’s statement merely regurgitates words that were fed by a government
agent, then (provided the offering party can establish relevance) the statement might be
admissible.” (R. 439, PageID 3013).
In Branham, the defendant challenged the district court’s decision to sustain the
government’s hearsay objection to defense counsel’s general inquiry into conversations between
Branham and a government informant—conversations which Branham argued would help show
that an informant sought to entrap him at the direction of the government. 97 F.3d at 850.
Branham argued that the statements were relevant for purposes of his entrapment defense and
admissible as nonhearsay pursuant to Rule 801(d)(2)(D). Id. While the government argued that
the conversations with the informant were outside the scope of the agency between the detective
and the informant, a panel of this court disagreed. In rejecting the government’s argument, the
Branham court noted that the informant there had “conversed with [the defendant] on a regular
basis in order to establish a trusting relationship,” so “whatever [the informant] said during these
conversations was in furtherance of that goal, and thus within the scope of the existing agency.”
Id. at 851 (emphasis added); see also Reed, 167 F.3d at 989 (discussing Branham and noting that
the “conversations between [the] government informant and criminal defendant were designed to
establish trust” as the investigative goal, which made them admissible).
Shifting to the relevance of the statements, the Branham court explained that
“conversations concerning [the defendant’s] entrapment defense would not constitute hearsay”
because they were not offered for the truth of the matter asserted. Branham, 97 F.3d at 851.
Instead, they were offered as evidence of Branham’s state of mind in support of his entrapment
defense and, here, “the significance of a statement ‘lies solely in the fact that it was made,’ rather

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than in the veracity of the out-of-court declarant’s assertion.” Id. (quoting United States v.
Cantu, 876 F.2d 1134, 1137 (5th Cir. 1989)).10
Relying on Branham, Defendants maintain that they were deprived of the right to present
a defense when the district court limited the admissibility of the government informant’s
statements. First, Fox argues that under Branham, the government informant statements were
admissible “because they were all agents of the government at the time the statements were made
and the statements related to matters within the scope of their duties in the investigation.” (ECF
26, Fox Appellant Br. 63–64). In Branham, as explained in Reed, we emphasized the fact that
the informant’s statements fell within the scope of the agency between the informant and the
government because the communications with the defendant were in furtherance of the
government’s investigative goal—which, in that particular case, was to establish a trust
relationship. See Branham, 97 F.3d at 851; Reed, 167 F.3d at 989. The fact that a statement
came from a person acting as an informant for the government does not automatically qualify the
statement for admission under Rule 801(d)(2)(D); Branham demands that any such statements be
within the “scope of the existing agency,” which means that they must be in furtherance of an
investigative goal. 97 F.3d at 851.
In its order denying the motion in limine, the district court concluded that “the best
reading of Branham and Reed is that Rule 801(d)(2)(D) covers only those situations where an
informant’s words and actions are directly and expressly authorized by a government agent.” (R.
439, PageID 3013) (emphasis added). But no such limitation can be found in either Branham or
Reed because neither case involved mere regurgitation by a government informant of an agent’s
10While some circuit courts have yet to address the issue of whether informant statements should be
admitted under Rule 801(d)(2)(D), of those that have, the majority disallow the admission of such statements. See,
e.g., Lippay v. Christos, 996 F.2d 1490, 1498 (3d Cir. 1993); Yildiz, 355 F.3d at 82 (“There is good reason . . . to
distinguish sworn statements submitted to a judicial officer, which the government might be said to have adopted,
and those that are not submitted to a court and, consequently, not adopted, for example, statements contained in an
arrest warrant . . . and an informant’s remarks.”); United States v. Rodriguez-Landa, 2019 WL 1755518, at *4 (C.D.
Cal. Apr. 19, 2019) (rejecting argument that government informant statements are party admissions and explaining
“Only the Sixth Circuit has permitted” such statements “to constitute a party admission under Rule 801(d)(2)(D).”);
see generally CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, 4 FEDERAL EVIDENCE § 8:56 (4th ed. 2021)
(“Usually statements by informants should not be viewed as admissions by the government . . . 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.”). Nevertheless, we continue to allow
the admittance of government informant statements but only when they are made in furtherance of an investigatory
goal. See Branham, 97 F.3d at 851.

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words. The circumstance described by the district court is merely one example of when
government informant statements may be used in furtherance of an investigative goal. We have
not suggested that it is the only possible scenario. As such, the district court erred in placing
such a limitation on informant statements here. Notably, because of the court’s formulation of
the rule—i.e., that only informants’ statements made at the behest of the agency were
admissible—there was not a particularized ruling as to the 258 informant statements at issue.
Now, the remaining question before us is whether this error was harmless. See Branham, 97
F.3d at 851 (“[E]ven if the district court erred in sustaining the hearsay objection, we will not
reverse if the error was harmless.”); United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir.
2015) (“Evidentiary errors remain subject to harmless error review.”); see also Fed. R. Crim. P.
52(a).
2. Harmless Error. As an initial matter, the parties dispute whether the error in this case
should be categorized as constitutional or non-constitutional, a distinction that could alter the
legal standard that will apply to our analysis. Defendants argue that the district court’s exclusion
of evidence under Rule 801(d)(2)(D) deprived them of a right to fully present their defense and
rises to the level of a constitutional error. Thus, Defendants ask that we apply the harmless error
standard announced in Chapman v. California, which is more exacting and requires proof of
harmlessness “beyond a reasonable doubt.” 386 U.S. 18, 24 (1967); see also id. at 24–26
(applying the heightened standard where the prosecution referenced the defendant’s failure to
testify in violation of the Fifth Amendment’s privilege against self-incrimination).
“[E]rroneous evidentiary rulings rarely constitute a violation of a defendant’s right to
present a defense.” United States v. Hardy, 586 F.3d 1040, 1044 (6th Cir. 2009) (citing
Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001)). We have found that the erroneous
exclusion of evidence does not “cause . . . constitutional injury” when “[a] variety of avenues
[are] available to [the defendant] to present his defense, including his own testimony.” United
States v. Kerley, 784 F.3d 327, 343 (6th Cir. 2015); see also United States v. Reichert, 747 F.3d
445, 454 (6th Cir. 2014) (“[O]f course, Reichert had at least one other avenue of putting his own
statements and beliefs into evidence: by taking the stand himself.”). Here, neither Fox nor Croft
testified in support of their entrapment defense, nor do they claim that they were prevented from

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doing so. And the evidence they may not have been able to testify to due to the district court’s
hearsay order could have been explored through cross examination of the confidential
informants.11 See United States v. August, 984 F.2d 705, 712 (6th Cir. 1992) (explaining that
any error in excluding evidence was harmless where the substance of the evidence came before
the jury in another form). Because Defendants had other avenues available to them to support
their entrapment defense and chose not to use them, they cannot establish that the harm they
purportedly suffered gave rise to a constitutional injury. See Kerley, 784 F.3d at 343; Reichert,
747 F.3d at 454. Defendants, it bears noting, secured the admission of several of their proffered
statements through witness testimony. And they could have presented other proffered statements
on direct or cross examination. As such, the heightened harmless error standard is inapplicable.
Although the district court erred in its announcement and application of the rule for
admissibility of informant statements under Branham, “we may not grant a new trial on the basis
of [a] non-constitutional trial error where we have a ‘fair assurance’ that the verdict was not
‘substantially swayed’ by the error.” United States v. Kettles, 970 F.3d 637, 643 (6th Cir. 2020)
(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)); United States v. Chavez, 951
F.3d 349, 358 (6th Cir. 2020) (same). The burden lies with the “Government to explain why an
error should not upset the trial court’s determination.” Kettles, 970 F.3d at 643 (quoting Shinseki
v. Sanders, 556 U.S. 396, 410–11 (2009)).
At issue is the Defendants’ assertion that the district court’s overly broad exclusion of
informant statements impeded their ability to present evidence of inducement in support of their
defense of government entrapment. As discussed above, entrapment exists when the government
“implant[s] in the mind of an innocent person the disposition to commit the alleged offense and
induce[s] its commission.” Hampton v. United States, 425 U.S. 484, 490 (1976) (quoting
Sorrells v. United States, 287 U.S. 435, 442 (1932)); see also United States v. Russell, 411 U.S.
423, 436 (1973) (“It is only when the Government’s deception actually implants the criminal
11We acknowledge that the Defendants could not have called Robeson to testify because he invoked his
Fifth Amendment right and the substance of his excluded statements thus could not have come in through his cross
examination. See U.S. Const. amend. V. Robeson had few excluded statements, however, and the substance of his
excluded statements largely came in through Chappel’s testimony. For example, most of Robeson’s excluded
statements encouraged the group to come up with a plan, which Chappell admitted that the government encouraged
a plan at trial. (R. 839, PageID 14724).

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design in the mind of the defendant that the defense of entrapment comes into play.” (emphasis
added)). The government argues that the statements proffered by Defendants, even if admitted,
would not have had a material effect on the jury’s verdict. We agree. The excluded statements,
when reviewed as a whole,12 do not adequately support Defendants’ argument that they were
entrapped by the government. Recall that entrapment has two elements, a lack of predisposition
and inducement. Here, the government introduced substantial evidence suggesting that the
Defendants were predisposed—that is, they did not meet the government as “unwary innocents.”
Mathews, 485 U.S. at 63.
The Defendants focus their argument on entrapment’s other prong—inducement. To
show inducement, a defendant must establish a “causal connection” between the proffered
evidence and the defendant’s state of mind. White, 815 F. App’x at 30. If the statement of an
agent or informant is proffered to show the government’s motive and does not “affect” the
defendant’s state of mind, it is not relevant. United States v. Robinson, 763 F.2d 778, 783 (6th
Cir. 1985); see also Fed. R. Evid. 401.
Here, as the government explains, many of the statements at issue were never
communicated to Defendants. For instance, Defendants proffer statements that reference
discussions between Robeson, Plunk, and Frank Butler, who was subject to a separate
investigation. (See R. 383-1: PageID 2578–79 (Items 11–15)). In particular, one statement—
“I don’t know where he’s really at, but I just know that [he’s] backing off as hard as he has from
other stuff, I have concerns with”—relates to an informant’s opinion that Croft was nervous that
law enforcement may have been watching. (Id. at 2580, Item 15). This and similar statements
were not conveyed to Croft and therefore could not have induced Croft to participate in the
conspiracies or possess a WMD. And, although this statement may be relevant as to Croft’s
predisposition, see McLernon, 746 F.2d at 1113 (explaining the “most important factor” in
determining predisposition is “whether the defendant evidenced reluctance to engage in criminal
activity which was overcome by repeated inducements”), one text containing the perceptions of
12We do not independently address all 258 informant statements. Instead, we focus on many of the
statements identified in Defendants’ supplemental briefing, which they appear to believe to be most relevant to their
entrapment defense.

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government agents about Croft’s state of mind is not enough to overcome the evidence presented
at trial of Croft’s active and engaged role in the conspiracy.
Other statements pertained only to original co-defendant, Daniel Harris, who was not a
party to the second trial. (See id. at 2589–92 (Items 36, 43, 49, 54, and 67)). Nevertheless, while
only one statement—“Beaker [Harris] probably wouldn’t” go with the group on the second
reconnaissance of the Governor’s home—was conveyed by Chappel to Fox, this statement would
only be probative to Harris’s defense, not to Fox’s state of mind. (Id. at 2590, Item 54). Item
158 is a statement from Robeson to Chappel and Plunk where Robeson states that he would not
“induce any . . . illegal activity that we don’t have to,” which Defendants allege is offered to
show “Robeson’s “willingness to ‘induce’ illegal activity.” (Id. at 2607). This evidence is
irrelevant because, at best, it would be probative of Robeson’s state of mind but not of the
Defendants’ in support of their entrapment defense; again, nothing was conveyed to Defendants.
Next, the government maintains that many of the omitted statements merely reflect
instances where an informant provided Defendants with the facilities or opportunities to further
their plans or show that the informant acted in agreement with committing a crime. As discussed
above, providing opportunities and facilities for an individual to commit a crime is insufficient to
show inducement for purposes of government entrapment: such actions must be coupled with
excessive pressure. See Mathews, 485 U.S. at 66; Hood, 811 F. App’x at 298.
Defendants argue that Robeson and Chappel applied such pressure by incessantly
pushing them to come up with a specific plan. They point to numerous statements where both
informants used strong language and encouraged action. See R. 383-1, PageID 2578–79, 2956–
58. Some of these statements concerned a separate investigation into Frank Butler related to a
plot in Virginia and are thus irrelevant to this case. [Appellee Br. at 34.] For most, however, the
Defendants are correct that the government encouraged them to settle on a plan. But as the
government points out in its supplemental briefing, the jury heard the substance of most of these
statements and yet still convicted both Fox and Croft. [Appellee Supp. Br. at 24–27.] What’s
more, defense counsel had Chappel, who made the vast majority of the excluded statements, on
the stand for two days and did not seek to elicit this testimony further through cross. See United
States v. Coplan, 703 F.3d 46, 85–86 (2d Cir. 2012) (explaining that even if a district court’s

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evidentiary ruling was erroneous, it was harmless because “it is clear that the defendants had
ample opportunity to make these arguments through their cross-examination”). Defendants also
proffered a statement where Robeson and Chappel discussed whether and when they should use
Garbin’s property near Traverse City for the FTX, “to show CHS Dan and CHS Steve pushing
[the] government-sponsored Luther FTX.” (R. 383-1, PageID 2589, Item 45). But the record
contradicts this assertion. At trial, Garbin testified that he volunteered his property for the site of
the FTX without any pressure from the government.
Defendants also allege that certain statements support their argument that the government
pushed them to act when they did. But it was Fox who initially conveyed that he did not “feel
like [they] should be waiting until November” in explaining that the group “should be actively
staging and planning.” (Gov. Ex. 64). Defendants also proffer Items 50, 51, and 53 to show that
Chappel was “pushing Adam Fox for [a] Government-led trip up north” and “induc[ing]
activity.” (R. 383-1, PageID 2590). But the jury heard many statements where Chappel
encouraged Fox to perform reconnaissance on Governor Whitmer’s vacation home and still
found Fox guilty. (R. 841, PageID 15108–09; R. 842, PageID 15318).
Similarly, Defendants proffer Item 73 where Roberson said, “[y]ou can’t just grab brick
and mortar. Without a f[]cking human to go with it, you’ve done nothing but grab brick and
mortar,” in order “[t]o show CHS Steve advancing the idea of kidnapping.” (Id. at 2593). Even
assuming that the government did “advance” the planning, this would not be probative to show
inducement. Rather, as stated, the government induces an individual when it “implants the
criminal design in the mind of the defendant.” Russell, 411 U.S. at 436 (emphasis added). The
record shows that both Fox and Croft had already proposed the idea to “snatch” governors, so the
informant’s statement did not implant any ideas in their minds that did not already exist. (Gov.
Ex. 491; Gov. Ex. 11).
Moreover, to the extent that Defendants attempt to argue that the informant’s pretending
to be a criminal or taking part in the planning supports that they were induced, this argument
lacks merit. Government agents and informants, as part of their investigation, may maintain a
“plausible cover story to explain [their] own motives” for participating in the crime without
engaging in unlawful inducement. United States v. Hall, 608 F.3d 340, 344 (7th Cir. 2010).

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Agents may also employ “[a]rtifice and stratagem . . . to catch those engaged in criminal
enterprises.” United States v. Thompson, 366 F.2d 167, 175 (6th Cir. 1966); accord Sixth Circuit
Pattern Jury Instruction § 6.03(4) (“It is sometimes necessary during an investigation for a
government agent to pretend to be a criminal, and to offer to take part in a crime . . . . This is
permissible.”). Thus, these statements merely demonstrate that the informants afforded facilities,
opportunity, or acted in agreement: such tactics are not probative to inducement.
The government also maintains that many of the statements proffered by Defendants, on
their face, were not probative to show inducement as they do not demonstrate the government’s
application of excessive pressure or any other coercive tactics. We agree. For instance,
Defendants proffer Items 3 and 147, which are statements discussing “seating assignments”
during the second reconnaissance of Governor Whitmer’s vacation home to show that informants
and the government “were in charge of planning and organizing the field trip on 9/12/2020.” (R.
383-1, PageID 2576, 2606). The face of this statement is at odds with Defendants’
characterization of the evidence. The fact that the informants, as part of the group going to
surveil the Governor’s home, discussed which car everyone would ride in does not suggest that
they were “in charge” of the entire operation, nor does it show, more importantly, that
Defendants were persuaded to participate in the criminal activity because of the statements. In
fact, Chappel testified that Fox ultimately determined which vehicle everyone would ride in,
which according to Defendants’ logic, would show that Fox was the individual “in charge” of the
seating arrangements and planning.
Defendants also proffered Item 100 in which Robeson warned the group that “in two
months your states are going to be locked back down again” in order “to show CHS
provoking/Inciting targets to make compromising or incriminating statements.” (R. 383-1,
PageID 2598). The statement, however, does not ask Defendants to do anything let alone rise to
the level of “excessive pressure.” Hood, 811 F. App’x 291. And again, making statements to
maintain a level of trust between an informant and a target does not amount to impermissible
inducement. See Sherman v. United States, 356 U.S. 369, 383–84 (1958) (Frankfurter, J., joined
by Douglas, Harlan, and Brennan, JJ., concurring) (explaining that the government may “act in
such a manner as is likely to induce to the commission of crime only [those who are “ready and

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willing to commit further crimes”] and not others who would normally avoid crime and through
self-struggle resist ordinary temptations”). The omitted statements proffered by Defendants do
not overcome the evidence presented at trial on which the jury convicted them and would not
have substantially swayed the jury to support Fox’s and Croft’s entrapment defense.
Finally, as discussed above, this finding is buttressed by the evidence of Defendants’
guilt and their predisposition to engage in criminal activity. See discussion supra Section II.A.4
and n.6. It bears emphasizing that a finding of predisposition fully defeats the entrapment
defense. Tucker, 28 F.3d at 1422. A lack of predisposition, the principal ingredient of
entrapment, asks whether law enforcement planted “a criminal design in the mind of an
otherwise law-abiding citizen or whether the government merely provided an opportunity to
commit a crime to one who” was already willing to do so. United States v. Al-Cholan, 610 F.3d
945, 950 (6th Cir. 2010). Here, the government presented powerful evidence that Fox and Croft
were predisposed to commit the crimes charged. Thus, even if the proffered statements would
have helped Fox and Croft prove some inducement, we do not see how they would have swayed
the jury’s predisposition finding.
Between Defendants’ extremist group affiliations, threatening social media posts, and
numerous self-incriminating private communications, it is evident that Defendants were ready
and willing to commit these crimes long before being introduced to any government informants.
For example, before contact with the government informants in this case, Croft messaged Fox
stating “We’re gonna try and keep ‘em guessing . . . . Once we get the foothold, one criminal
governor in our possession, we’ve captured the flag in that state.” (Gov. Ex. 14). Soon after, but
before contact with government agents, Fox privately messaged a separate colleague arguing that
“we need to get these f[]cking governors and arrest them and put ‘em on trial for their
crimes . . . we can’t seem to get any constitutional sheriffs to go arrest her, so we’re gonna have
to do it the f[]cking, old, citizen’s’ arrest way.” (Gov. Ex. 20). As evidenced by these messages,
none of the proffered informant statements suggest that the government “implant[ed]” any
criminal design in the minds of Fox and Croft: the criminal thoughts were their own. Russell,
411 U.S. at 436.

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The government has sufficiently demonstrated that the jury’s verdict was not
“substantially swayed” by the district court’s error. We, therefore, conclude that the exclusion of
the informants’ statements was harmless. Kettles, 970 F.3d at 643.
III.
For the foregoing reasons, we AFFIRM the convictions of Fox and Croft on all counts.

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