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Final decision expected on 'double agent' testifying in Whitmer kidnap trial

WWMT Grand Rapids/Lansing logo WWMT Grand Rapids/Lansing 3/28/2022 MICHAEL KRAFCIK | WWMT staff
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GRAND RAPIDS, Mich. (WWMT) — The attorney for a former FBI undercover informant who gathered secret recordings and helped suspects surveil Michigan Gov. Gretchen Whitmer’s vacation home wants his client to stay off the witness stand during the kidnapping plot trial. 

Federal prosecutors said Steve Robeson was fired as a confidential source in October 2020 for breaking the law without authorization and helping further the kidnapping plot. 

Robeson asked another FBI informant to throw one of the suspect's firearms in the lake and get rid of a vehicle used during the surveillance mission of the governor's cottage. Robeson also tipped off suspect Barry Croft about his impending arrest, according to the FBI. 

Federal prosecutors referred to Steve Robeson, of Wisconsin, as a "double agent" but defense attorneys claimed his fear of prosecution "unfounded," and argued that he should not be able to avoid testifying."

Robeson's attorney Lawrence Phelan, in a new filing Sunday, asked the court to deny the defense's motion to compel his testimony. Phelan said Robeson's actions could expose him to criminal charges because he was acting without the knowledge, consent or authorization of his handers. 

"While it is likely that at least some of his actions were authorized, the government’s repeated position is that many of his actions were not authorized," Phelan wrote in his filing. 

On Friday, federal prosecutors requested the court bar Robeson's testimony.   U.S. Attorney Andrew Birge requested a hearing where the court can administer an oath to Robeson outside the presence of the jury. 

"After that hearing, the government anticipates that the Court should bar Steve’s testimony in its entirety, Birge wrote in a filing Friday. "His refusal to testify will be based on a well-rounded fear of incriminating himself arising from his obstructive and other potentially criminal actions outside the scope of his work as a confidential human source." 

Adam Fox, Daniel Harris, Branden Caserta and Barry Croft, of Delaware, are charged for the kidnapping conspiracy, they face up to life in prison if convicted on the charges.

The FBI said Robeson told another FBI informant Dan Chappel to throw Barry Croft's firearm in the lake and get rid of a vehicle used during a Sept. 12, 2020 nighttime reconnaissance mission at the Governor's Elk Rapids cottage. 

The FBI said Robeson was admonished not to commit crimes unless the bureau gave him authority to do so. 

 Federal prosecutors said Robeson also failed to let his handlers know Kaleb Franks, Ty Garbin and Brian Higgins recorded their nighttime surveillance of the Governor's home on a dash-mounted camera. 

Robeson was told not to inform anyone about the impending arrests of the suspects on trial, but Robeson notified Barry Croft and FBI informant Steve Chappel, who he was unaware was an informant, the FBI said. 

"Steve dubiously claimed in a statement to agents that he did the above things to try and avoid being 'outed' as a source. He also admitted to lying to the FBI about Higgins’ involvement," federal prosecutors wrote in a motion Friday.  

Robeson was not charged during the October 2020 takedown of the alleged plotters but pleaded guilty to possessing a firearm as a felony in Oct. 2021 and was sentenced to two years of federal supervision for possessing a firearm in Wisconsin related to his conduct.

The FBI said both state and federal prosecutors in other jurisdictions could bring charges despite the Wisconsin conviction. 

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Robeson's secret recordings captured in South Carolina, Ohio, Michigan and Wisconsin played a major role that led to Fourteen men charged in state and federal courts in connection to the kidnapping plot.

U.S. District Court Judge Robert Jonker indicated Friday he will make a final ruling this week.

Defense attorneys have argued throughout the trial the undercover FBI agents and informants who flipped on members of the group were behind the alleged plot. Following the government's response, defense attorneys indicated they were willing to move forward.

"It's inevitable we won't see him and we accept that but we will go through motions," Adam Fox's attorney Christopher Gibbons said Friday in U.S. District Court.

FBI agent to testify Monday

One of the FBI's key undercover agents brought into the plot as an 'explosives' expert is expected to testify Monday. 

The agent, known as "Red" was with the suspects during the nighttime surveillance of the Governor's cottage and offered to gather $4,000 in explosives to blow up a nearby bridge to slow response time.

Defense attorneys have previously argued "Red" tricked suspects to meet up with a promise of beer and wings at Buffalo Wild Wings the night the FBI arrested the suspects Oct. 7, 2020. 

Under questioning by Daniel Harris's attorney Julia Kelly, Kaleb Franks said he had $23 in cash in his pocket when he was arrested for buying a bomb in a Ypsilanti parking lot but had no intention of buying a bomb.

"Red" is one of at least 12 informants prosecutors used in the kidnapping case, court records showed.

Ty Garbin and Kaleb Franks, who both pleaded guilty to the kidnapping conspiracy, both testified last week they were not entrapped or induced to commit any crimes by undercover agents or informants.

Garbin is serving a six-year prison sentence for pleading to the conspiracy to kidnap. Franks has yet to be sentenced.

Friday's developments: 

On Friday, a 24-year-old Detroit area carpenter Joshua Miller testified he left the Wolverine Watchmen in July 2020 after attending two training sessions with the group.  Miler said he officially decided to leave the group when they talked about their concerns about a fed being in the group.

"It wasn't something I wanted to be a part of," Miller said in his testimony Friday.  

FBI Special Agent Brian Clark testified he recovered flex cuffs, zip ties, an AR-15, a loaded Smith and Wesson and hundreds of rounds of ammo during the raid of Adam Fox's apartment, in the basement of a Grand Rapids vacuum shop.

Clark testified agents recovered smoke canisters, a bulletproof vest and a military-issued flashlight and pulled out a Hawaiian shirt found in Fox's basement.  

The Hawaiian shirt is worn by the members of the Boogaloo movement, a movement which calls for the start of a second civil war.  On Thursday, Prosecutors pulled out the Hawaiian shirt found during the raid of Kaleb Franks's home following his Oct. 2020 arrest. 

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