GOVERNOR KIDNAP PLOT TRIAL DAY 7: HATCHING A PLAN: Defense challenges use of undercover operatives
Aug. 31—BELLAIRE — On Aug. 29, 2020, about 1 p.m. three men sat together in a booth near the window at the Oasis Red Bull Tavern, a Kewadin bar known for its hamburgers and local atmosphere.
One of the men, Adam Fox, opened a spiral notebook and began to draw.
The two others, Eric Molitor and an FBI informant, "CHS Dan," were with Fox at the bar and discussed what Fox depicted with an ink pen, according to evidence presented in 13th Circuit Court Thursday.
A rudimentary map showed Elk Rapids, the US-31 bridge over the Elk River, Birch Lake and the approximate location of Gov. Gretchen Whitmer's vacation home.
A notation in Fox's handwriting, court records show, reportedly references the Elk Rapids Police Department and states, "everything else 20 plus miles away."
That map has since been labeled in 13th Circuit Court, as prosecution exhibit 144. A corresponding photograph of Fox is exhibit 143.
Fox isn't charged in Antrim County, but Molitor and brothers Michael Null and William Null, are on trial here on terrorism and weapons charges related to a plot to kidnap the governor.
Molitor was at the bar that day with Fox and an FBI informant; the Null brothers were not, evidence presented in court shows.
Molitor's attorney contends his client did not know what Fox was up to when he agreed to go on the drive north.
Fox later stated he was considering ways to slow a law enforcement response, if the group went through with a kidnapping, and the map was one way to consider that option, prosecutors said.
Prosecutors have yet to tie Molitor to explosives, Barnett said in court.
Foxw was convicted last year in federal court and the third man at the bar was an FBI informant, "CHS Dan," whose handler, FBI Special Agent Henrik Impola, said happened to have the spiral notebook in his truck.
CHS Dan also had a transmitter, and Impola was parked in his vehicle a half-mile from the bar, listening in.
"They discussed first responders," Impola testified Thursday, the seventh day of the trial, about the men's conversation, which he said also covered their daytime surveillance of the vacation home.
Barnett focused much of his cross-examination on the FBI's use of undercover agents and informants in their investigation into the plot, which began in March 2020, resulted in more than a dozen arrests Oct. 7, 2020, and is ongoing, Impola testified last week.
All three defendants were arrested and later arraigned in Antrim County; prosecutors on Thursday showed photographs of firearms recovered from Molitor's home via a search warrant obtained by law enforcement.
An informant providing a notebook to the subject of an investigation was one thing — more concerning to the defense, Barnett said, was the military-style training CHS Dan provided to members of a militia group, the Wolverine Watchmen, and to others who attended these activities.
"Do you recall Dan training the Wolverine Watchmen?" Barnett asked Impola.
"Paul Bellar and CHS Dan were part of the training of the Wolverine Watchmen," Impola said.
Bellar, a member of the Wolverine Watchmen, was convicted last year in Jackson County of state charges similar to those facing these three Antrim County defendants, as well as illegal gang membership.
"You were allowing your informant, your listening post, training to commit criminal acts?" Barnett asked Impola.
The agent, who has now testified for more than 24 hours across seven days, pushed back on that characterization of CHS Dan, who Impola said did and "admirable job."
"CHS Dan is reporting all that activity back to me and I'm asking him to be a member of the group," Impola said, explaining how he'd instructed CHS Dan to do what he could to prevent an accidental weapons discharge during the trainings, in which someone could have been injured.
"Dan himself is not committing a criminal act," Impola continued. "He doesn't have the intent. He's trying to stop a criminal act. He's not part of the plot. He's not trying to further it."
Assistant Attorney General William Rollstin, lead prosecutor in the case, asked a few follow-up questions, then "yielded" the witness, meaning the jurors, if they had any questions for Impola, were now free to share those questions with the judge.
Thirteenth Circuit Court Judge Charles Hamlyn, who is presiding over the trial, said a juror, or jurors, wanted to know whether the firearms seized from Molitor's home had been legally purchased.
Judge Hamlyn said Molitor had not been charged with any weapons crimes, then explained how felony firearm is a charge regarding the possession of a firearm while committing a crime, but that does not mean the firearm itself was illegally obtained.
Thursday afternoon, the state called another FBI agent, referred to only as "Undercover Mark," to testify about his role in the investigation.
Undercover Mark said he'd befriended Fox via online-only communications between Fox's then-girlfriend, Amanda Keller, and another FBI agent.
In early July 2020, Undercover Mark met with Fox, face to face, in the basement of a Grand Rapids vacuum cleaner repair shop, where Fox sometimes worked and lived.
By September, Undercover Mark was invited to attend an FTX — firearms training — with more than a dozen others on some hunting property in Luther, Mich., according to his testimony, and was soon driving the lookout car to Elk Rapids, for the nighttime surveillance of the governor's vacation home.
Also in the so-called "lookout car" were Michael and William Null, Undercover Mark said.
The agent said sitting back and just observing wasn't an option because it would have raised suspicion amongst the group.
Undercover Mark was also tasked, by Fox, with surveilling the governor's official summer residence on Mackinac Island and providing photographs, he said.
"I wanted to comply so that I could continue to build a relationship with Mr. Fox," Undercover Mark said, "so that I could continue to learn about his plans."
The trial adjourned just before 5 p.m. Undercover Mark's testimony is expected to continue Friday, beginning at 9 a.m.
