FBI's "Undercover Mark" testifies in kidnap hearing

Sep. 1—TRAVERSE CITY — An FBI agent identified only as "Undercover Mark" testified for the state in 86th District Court Thursday, detailing his role in an investigation into an accused plot to kidnap the governor, adding specifics of a nighttime surveillance of the governor's lakeside vacation home.

"The group rallies at an AM VETS parking lot there in Elk Rapids right around midnight," Undercover Mark said, of a Sept. 12, 2020, surveillance by several men who he said gathered in the parking lot of a Cadillac Walmart, then drove north in a three-vehicle caravan.

"They all had long guns," the agent said, naming four of the five men currently facing charges in 86th District Court. "Each of the vehicles was given a specific assignment."

Shawn Fix, Eric Molitor, Michael Null and William Null, all of Michigan, are charged with one count each of providing material support or resources for an act of terrorism and one count each of possession of a firearm during the commission of a felony.

Brian Higgins, a resident of Wisconsin, is charged with one count of providing material support or resources for an act of terrorism.

All five men have been in court this week, some accompanied by one or more family members, as Judge Michael Stepka considers whether the state has presented enough evidence for him to bind the case over to 13th Circuit Court for trial.

The state is represented by four attorneys from the Michigan Attorney General's office, which is prosecuting the case, and the five defendants are represented by six defense attorneys, one of whom is local, with the others hailing from Cadillac, Grand Rapids and Flint.

The state has so far provided the judge more than 100 exhibits — audio and video recordings, photographs, screen shots of encrypted group chats and text messages, for example.

These exhibits became a separate issue of law Thursday morning, after a freelance videographer who has been following the case for a possible documentary film, filed a motion seeking immediate access to the material.

Stepka said he consulted with the state court administrator before ruling against Eric VanDussen's motion, stating that these exhibits were not the property of the court, but rather the property of the parties that filed them.

VanDussen, who is not an attorney but was allowed to argue his motion per court rules, questioned whether the court retained the exhibits and, if so, how they were not then court documents, which should be public.

"It doesn't matter if I retain them for purposes of this decision," Stepka said.

"It does for purposes of appeal, your honor," VanDussen replied.

The lead prosecutor, Assistant Attorney General Sunita Doddamani, weighed in, stating that exhibits created by the AG's office were subject to the Freedom of Information Act, and could be accessed that way.

The Record-Eagle on Wednesday sought copies of the exhibits by filing a request with the 86th District Court administrator, using a form specified on the court's website, but has thus far received no response. VanDussen said he, too, filed this form and received no response, which prompted his motion requesting immediate access.

VanDussen said he has requested a transcript and is awaiting that document, along with Stepka's written order, before making a decision on whether to appeal the judge's ruling.

VanDussen also filed a motion seeking to record video in the courtroom during Undercover Mark's testimony, stipulating he'd point his camera away from the witness.

Stepka denied that request as well, stating reporters could record audio, but all were barred from taking video or photographs in the courtroom while the witness was testifying.

"This is an undercover FBI agent, whose undercover identity is critical to his job, his safety and the safety of other agents and other confidential human sources," Stepka said.

Undercover Mark on Thursday corroborated previous testimony from Agent Impalo, as well as some information contained in audio and video recordings they and other sources had captured, specifically regarding the Sept. 12 surveillance.

The Null brothers rode in the truck Undercover Mark was driving, witnesses testified, and their assignment was to surveil the general area, but not to drive past the governor's vacation home.

A confidential human source known in court as "CHS Dan," drove the second vehicle, witnesses said, with Adam Fox, Barry Croft — both later found guilty in federal court of conspiracy — Steve Robeson, also, for a time, a confidential human source for the FBI, and an undercover FBI Agent known as "Undercover Red," as passengers.

The second vehicle's assignment, witnesses said, was to drive to a public boat launch and signal the the third vehicle, which was assigned to drive by the governor's vacation home.

The third vehicle was driven by Higgins, witnesses said, his passengers were Ty Garbin and Kaleb Franks, who later each pleaded guilty in federal court to conspiracy in relation to the kidnap plot, and testified against Fox and Croft, Jr.

Assignments, witnesses said, were handed out by Fox.

Court testimony this week by Impalo detailed an earlier daytime surveillance of the governor's lakeside home, where some of the men visited the Oasis Red Bull Tavern in Kewadin, got out of their vehicles at the tennis courts at Milton Township Park and cased the Elk Rapids Police Station to gauge possible response time by local officers.

Fix was not present during the nighttime surveillance on Sept. 12, 2020, Undercover Mark said, though Impalo previously testified Fix assisted by attempting to provide the address of the governor's vacation home.

Fix's initial efforts were faulty and he provided the men with the wrong address, witnesses said. Defense attorneys have used this error and others to argue the men did not provide the kind of resources typically considered to aid in an act of terrorism — money, housing and caches of weapons, for example.

Witnesses said Fix repeatedly told the men he had trained as a U.S. Navy Seal and could provide and pilot a Blackhawk helicopter, which turned out to be untrue, his attorney, Flint-based Nichole Dougherty, said.

One resource Eric Molitor provided, witnesses said, was a device called an RF power detector, available online for less than $100, and which he waved in the air during a training exercise, or FTX, held on Garbin's property in Luther, in September 2020.

The device is designed to detect hidden cameras, wires or recording devices, and did alert at least once during the FTX, Undercover Mark testified, although no one present was "outed" because of the alert, he said.

The presence of the device did concern the undercover agent, he said, and he immediately moved away from where Molitor was using it.

Under questioning by William Rollstin, an attorney with the state Attorney General's office, Undercover Mark said Undercover Red was established with the defendants as someone who could provide explosives, for a discussed plan to blow up a bridge on M-131 near Elk Rapids, in an effort to slow down law enforcement should they be called during any actually kidnapping.

"Why introduce an individual who can acquire explosives to this group?" Rollstin asked.

"One reason is so people who are interested in obtaining explosives are not going out and obtaining explosives from people that actually have them," Undercover Mark said.

Judge Stepka will consider briefs filed in the coming weeks by the state and by the defense, and will then decide whether to bind the case over for trial.

The judge's decision could be weeks, or even months from now, court records indicate.

A defense motion requesting the removal of ankle monitors the men have been wearing, and paying for the use of, for nearly two years will be argued in an upcoming hearing that is not yet scheduled, the judge said.

The state expressed preliminary arguments against removal, while acknowledging, despite ongoing speculation, the AG's office had no plans to add conspiracy to the charges the men face.