In the ongoing federal case against five defendants, the government has identified at least a dozen such sources by number, a lawyer for one of the defendants wrote in the document. The sources “were assisted by FBI agents working undercover,” Scott Graham, representing Kaleb Franks, said.
“Kaleb is entitled to raise the alternative defense of entrapment. If a jury finds that Kaleb agreed with anyone to kidnap Governor Whitmer, the same jury could find that Kaleb was induced to participate by government agents,” Graham wrote in a motion to a federal judge hearing the case.
“Kaleb is entitled to fully explore and present this defense. To do this, Kaleb needs access to the CHS files maintained by the government. These files are required by FBI and [Department of Justice] rules and will provide crucial information regarding entrapment issues that will not be available elsewhere,” he added.
Federal prosecutors last year charged Franks and five others with planning to kidnap Whitmer, a Democrat. Another seven men were charged on the state level.
Richard Trask II, an FBI special agent, wrote in an affidavit supporting the criminal complaint that the bureau “relied on information provided by Confidential Human Sources (CHS) and Undercover Employees (UCE) over several months.”
The FBI vetted each source and none of the sources were aware of others “in order to preserve the independence of their reporting,” he said.
Franks and four other defendants have pleaded not guilty while the sixth hit with a federal charge pleaded guilty in January to conspiring to kidnap the governor. Ty Garbin, who faces life in prison, promised to cooperate with authorities in the case.
Defense lawyers, who previously alleged that FBI agents helped stoke the kidnapping plans, filed over a dozen motions in court this week to try to accomplish various aims, including severing Franks from the other defendants, introducing special instructions to the jury, and compelling prosecutors to identify exculpatory evidence.
Julia Kelly, a lawyer for defendant, Daniel Harris, told U.S. District Judge Robert Jonker that the government has produced a voluminous amount of evidence in the case, including recordings culled from undercover and covert recordings of car rides, phone calls, and field training exercises.
Kelly said she’s been told a fresh discovery dump is coming soon. That data will include materials related to the confidential human sources involved in the probe, she said.
Citing the government’s Brady obligations, the lawyer asked Jonker, a George W. Bush nominee, to order the government to identify which materials in the trove of data contain evidence that would be favorable to her client so she can effectively prepare for the trial.
Graham, the lawyer representing Franks, made the same case in his motion.
“The government has a duty to share evidence that could assist in preparation of a defense to the charges,” he said.
Evidence indicates already that one of the sources has a “decades-long history of cooperating with the government in exchange for personal benefit,” he added, while another source received around $54,000 for helping authorities in the case, according to testimony by a special agent during a March hearing.
“Evidence also (unsurprisingly) indicates extensive cooperation between these sources and their government handlers . . . and materials suggest extensive files on these sources and the evidence they provided. As one example: the CHS with the lengthy history of cooperation seems to have granted agents access to certain Facebook accounts, and the CHS who has testified granted agents access to a variety of accounts,” he said, citing previous hearings and filings.
Jonker will decide on the motions in the near future. The FBI did not reply to questions about the new filing. A spokeswoman for the U.S. Attorney’s office in the Western District of Michigan said via email that the office will respond to the motion in its own filings and would not comment beyond the pending documents.