Beyond “Regurgitation”: Sixth Circuit Clarifies Admissibility of Government-Informant Statements Under Rule 801(d)(2)(D) While Affirming Whitmer Kidnapping-Plot Convictions

Introduction

In United States v. Barry Gordon Croft, Jr. and Adam Dean Fox (Nos. 23-1014/1029), the Sixth Circuit affirmed the convictions of two men for conspiring to kidnap Michigan Governor Gretchen Whitmer, conspiring to use a weapon of mass destruction (WMD), and (as to Croft) possessing an unregistered destructive device. The case stems from a multi-month investigation in 2020 that documented extensive planning, training, reconnaissance, and procurement activity targeted at the Governor’s lakeside residence.

On appeal, Fox and Croft attacked the sufficiency of the evidence across counts; argued they were entrapped by the government; challenged the district court’s refusal to conduct a Remmer hearing to investigate alleged juror bias; objected to time limits on cross-examining a co-conspirator; and contended the district court erroneously curtailed the defense’s use of out-of-court informant statements by narrowing Federal Rule of Evidence 801(d)(2)(D).

The Sixth Circuit’s most consequential doctrinal contribution arrives in its clarification of Rule 801(d)(2)(D) in criminal cases: informant statements are admissible as party-opponent nonhearsay not only when they “regurgitate” an agent’s words, but whenever they are made within the scope of the informant’s agency and in furtherance of the government’s investigative goals. Although the panel found the district court’s contrary limitation erroneous, it deemed the error harmless and affirmed across the board.

Summary of the Opinion

• Sufficiency of the evidence (All counts): The court held substantial evidence supported the jury’s verdicts on conspiracy to kidnap (18 U.S.C. § 1201(c)) and conspiracy to use a WMD (18 U.S.C. § 2332a(a)(2)); as to Croft, the evidence also supported possession of an unregistered destructive device (26 U.S.C. § 5861(d)).
• Entrapment: The government proved predisposition beyond a reasonable doubt; predisposition defeats an entrapment defense even in the face of strong inducement. The record showed both defendants were willing and prepared prior to government contact.
• Remmer hearing: No abuse of discretion. The alleged juror bias rested on double hearsay and lacked credible evidence sufficient to present a “colorable claim” of extraneous influence.
• Cross-examination time limits: No constitutional violation or abuse of discretion. The court warned counsel repeatedly and applied reasonable, symmetrical time limits to curb cumulative, repetitive questioning.
• Rule 801(d)(2)(D) informant statements: The district court erred in narrowing Branham to only admit informant statements that “regurgitate” agent words. The Sixth Circuit clarified that informant statements qualify as party-opponent admissions if made within the informant’s agency scope and in furtherance of an investigative goal. The error was non-constitutional and harmless in this case.

Analysis

Precedents Cited and Their Influence

• Conspiracy and sufficiency:
  • Jackson v. Virginia, 443 U.S. 307 (1979): Evidence viewed in the light most favorable to the prosecution; the question is whether any rational juror could find the elements beyond a reasonable doubt.
  • United States v. Amawi, 695 F.3d 457 (6th Cir. 2012): Agreement may be tacit; the government need only prove adoption of the conspiracy’s “main objective,” not every detail. The court relied heavily on Amawi’s discussion of how collective planning, training, and non-dissent can evidence agreement.
  • Iannelli v. United States, 420 U.S. 770 (1975); Salinas v. United States, 522 U.S. 52 (1997); United States v. Jimenez Recio, 537 U.S. 270 (2003): Conspiracy is a distinct evil; the government need not show commission of the substantive offense. These cases doomed defendants’ arguments that the government had to prove Whitmer’s lack of consent or a personal “benefit” beyond the conspiratorial agreement itself.
  • United States v. Small, 988 F.3d 241 (6th Cir. 2021); United States v. Blackwell, 459 F.3d 739 (6th Cir. 2006): Elements of conspiracy to kidnap.
  • United States v. Jerkins, 871 F.2d 598 (6th Cir. 1989) and United States v. Bradley, 917 F.3d 493 (6th Cir. 2019): An overt act need not be illegal; any conspirator’s overt act suffices.
  • Wisconsin v. Mitchell, 508 U.S. 476 (1993): The First Amendment does not bar use of speech as evidence of motive or intent. Combined with Amawi, this authorized reliance on defendants’ speech to prove agreement and intent.
• WMD and destructive devices:
  • 18 U.S.C. §§ 2332a and 921(a)(4): Definitions of WMD and “destructive device,” including a combination of parts from which a destructive device can be readily assembled.
  • 26 U.S.C. §§ 5845, 5861(d), 5871: National Firearms Act duties; destructive devices as “firearms.”
  • United States v. Unthank, 107 F. App’x 625 (6th Cir. 2004); United States v. Rushcamp, 526 F.2d 1380 (6th Cir. 1975): The device need not function as intended; possession of an unregistered destructive device is the gravamen.
• Entrapment:
  • Jacobson v. United States, 503 U.S. 540 (1992); Mathews v. United States, 485 U.S. 58 (1988): Two elements—government inducement and lack of predisposition; merely affording an opportunity is not inducement.
  • United States v. McLernon, 746 F.2d 1098 (6th Cir. 1984); United States v. Khalil, 279 F.3d 358 (6th Cir. 2002): Multi-factor predisposition analysis; reluctance overcome by repeated inducement is the most important factor.
  • United States v. Tucker, 28 F.3d 1420 (6th Cir. 1994): Predisposition defeats the entrapment defense even when government inducement is strong.
  • United States v. Russell, 411 U.S. 423 (1973); Sherman v. United States, 356 U.S. 369 (1958): Government deceit is permissible unless it implants the criminal design in an otherwise law-abiding person; undercover stratagems are allowed.
• Juror bias and Remmer hearings:
  • Remmer v. United States, 347 U.S. 227 (1954): Presumptive prejudice upon unauthorized contact; requires investigation.
  • United States v. Kechego, 91 F.4th 845 (6th Cir. 2024): A Remmer hearing is required only upon a “colorable claim” supported by credible evidence and presenting a likelihood of affecting the verdict; mere possibility is insufficient.
  • United States v. Williams, 195 F.3d 823 (6th Cir. 1999); United States v. Lanier, 988 F.3d 284 (6th Cir. 2021): Deference to trial court’s credibility findings and management.
• Cross-examination limits and trial management:
  • Geders v. United States, 425 U.S. 80 (1976): Judges may limit cumulative, repetitive, or irrelevant testimony; duty to maintain control within limits.
  • Dorsey v. Parke, 872 F.2d 163 (6th Cir. 1989); Delaware v. Fensterer, 474 U.S. 15 (1985): The Sixth Amendment ensures an opportunity for effective, not boundless, cross-examination.
  • Fed. R. Evid. 403: Trial courts may exclude evidence to avoid undue delay, waste of time, or needless cumulation.
• Party-opponent admissions under Rule 801(d)(2)(D):
  • Branham v. United States, 97 F.3d 835 (6th Cir. 1996): Government is a party-opponent; informant statements may be nonhearsay if within the scope of agency and in furtherance of investigative goals (e.g., building trust for an undercover case).
  • United States v. Reed, 167 F.3d 984 (6th Cir. 1999): Branham does not admit “anything said” by an informant; scope and purpose still matter.
  • Out-of-circuit skepticism: Several circuits do not treat government agents’ statements as party admissions in criminal cases, but the Sixth Circuit adheres to Branham’s approach.
• Harmless error:
  • Kotteakos v. United States, 328 U.S. 750 (1946); United States v. Kettles, 970 F.3d 637 (6th Cir. 2020): Non-constitutional evidentiary errors warrant reversal only if the verdict was substantially swayed by the error.
  • Chapman v. California, 386 U.S. 18 (1967): Constitutional harmless-error standard (not applied here).
  • United States v. Kerley, 784 F.3d 327 (6th Cir. 2015); United States v. Reichert, 747 F.3d 445 (6th Cir. 2014): Exclusion rarely constitutes a constitutional violation if other avenues to present the defense exist.

Legal Reasoning

The panel’s reasoning proceeds in four principal tracks: conspiracy/WMD sufficiency, entrapment, juror-bias management, and evidence/cross-examination rulings.

1) Conspiracy and WMD: Agreement, Overt Acts, and Intent

For the kidnapping conspiracy, the court highlighted that conspiratorial agreement can be tacit and inferred from conduct over time. Drawing on Amawi, the panel emphasized that neither a formal pact nor perfect operational detail is required; the government must show adoption of the conspiracy’s “main objective.” Against that lens, Fox’s and Croft’s repeated meetings, multi-site field training, reconnaissance trips, detailed planning (including boat extraction and bridge-bombing to thwart law enforcement), equipment lists, and arrangements to purchase explosives easily allowed a rational jury to find an agreement and overt acts in furtherance.

Defendants’ arguments that plans were “fanciful” and lacked a fixed date were rejected: precision timing is not essential to conspiracy. The panel also disposed of arguments that the government must affirmatively prove the victim’s lack of consent or the conspirators’ personal benefit—those are elements of the substantive offense, not prerequisites to convict on conspiracy where the gravamen is the agreement itself (Salinas; Jimenez Recio).

With respect to the WMD conspiracy, the court underscored the breadth of “destructive device” definitions under §§ 2332a and 921. The predicate can be a combination of parts or an IED plan, and interstate travel in furtherance can satisfy the jurisdictional element. The record—including Croft’s explosives training, interstate travel with bombmaking kits, and actual IED detonation—supported a rational finding of a WMD conspiracy. As to Croft’s NFA conviction for possession of an unregistered destructive device, the court reiterated that operability as intended is unnecessary; possession of an unregistered destructive device suffices (Unthank).

First Amendment objections failed because the Constitution does not immunize speech used as evidence of intent or agreement (Mitchell), particularly where the case concerns agreement and conduct, not speech alone (Amawi).

2) Entrapment: Predisposition as the Decisive Factor

Entrapment requires both government inducement and lack of predisposition. The panel applied the McLernon factors, stressing that the most important consideration is whether a defendant showed reluctance overcome by repeated government pressure. The court found overwhelming predisposition: Croft, months before any informant contact, advocated kidnapping governors and posted threats; Fox likewise posted calls to violent action, initiated plans to “snatch” a governor, and drove planning and reconnaissance.

The court distinguished government provision of “opportunities or facilities” (permissible) from “inducement” requiring excessive pressure or exploitation of a special relationship. Testimony showed informants did not direct or pressure defendants into criminality; rather, defendants originated and refined the plot. Predisposition being established, the entrapment defense failed even if some inducement evidence existed (Tucker).

3) Remmer Hearing: What Counts as a “Colorable Claim”

The trial court’s refusal to hold a Remmer hearing was affirmed under abuse-of-discretion review. The allegation—stemming from a chain of double hearsay and anonymity—did not present a “colorable claim” of extraneous influence under Kechego because it lacked credible evidence and did not show a likelihood of affecting the verdict. The district court conducted an in camera interview, found the juror credible, and observed behavior consistent with impartiality. Defendants were not entitled to question the juror themselves, and there is no constitutional right to be present at every juror interaction (Gagnon).

4) Cross-Examination Time Limits: Managing Redundancy Without Violating the Sixth Amendment

The court held that the judge reasonably imposed symmetrical, advance-warned time limits for the cross-examination of co-conspirator Kaleb Franks, citing cumulative and repetitive questioning and juror disengagement. The Sixth Amendment guarantees an opportunity for effective cross, not unlimited time; trial courts have broad discretion to prevent undue delay and needless cumulation (Fed. R. Evid. 403; Geders; Dorsey). Defense counsel had multiple warnings and sufficient time to explore credibility and defense theories.

5) Rule 801(d)(2)(D) and Informant Statements: Clarification of Branham

The district court erred by limiting the admission of informant statements as party-opponent admissions to instances where the informant merely “regurgitated” words expressly authorized by a government agent. The Sixth Circuit clarified that neither Branham nor Reed imposes this restriction: the touchstone is whether the informant’s statements were made within the scope of the agency and in furtherance of an investigative goal (e.g., relationship-building, testing willingness, or advancing operational planning), not whether the informant spoke verbatim on an agent’s script.

Even so, the panel deemed the error non-constitutional and harmless: defendants had other avenues to present inducement (including cross-examination of informants), many statements’ substance was before the jury anyway, numerous proffered statements were not communicated to defendants (and thus could not have induced them), and the pervasive predisposition evidence would overwhelm any marginal inducement inference. Under Kotteakos/Kettles, the verdict was not substantially swayed by the error.

Impact

• Evidence law (Rule 801(d)(2)(D)): This decision sharpens the Sixth Circuit’s Branham line. Defense and prosecution alike should assess informant statements by asking:
  • Was the informant acting within the scope of the agency relationship?
  • Were the statements in furtherance of an investigative goal (e.g., building trust, advancing operational steps, eliciting reactions)?
  • Are the statements relevant to a material issue, and are they being offered for a permissible purpose?
  The court rejects a cramped “regurgitation-only” view. While a circuit split persists (some circuits do not treat government agents as party-opponents in criminal cases), within the Sixth Circuit the Branham-Reed framework remains robust.
• Entrapment defenses in undercover cases: The opinion reaffirms the high bar for entrapment. Predisposition—especially pre-contact expressions, preparations, and willingness—remains decisive. Government provision of opportunity, logistics, or even strong encouragement, without “excessive pressure,” will rarely suffice. Practitioners should foreground pre-contact timelines and genuine reluctance if asserting entrapment.
• Conspiracy prosecutions: The court reiterates core principles: tacit agreements suffice; precise timing is not essential; overt acts need not be illegal; and the government need not prove the substantive offense. This facilitates proactive interdiction where conspiracies are developing but not yet consummated.
• Trial management: Reasonable, advance-warned time limits on cross-examination are permissible to prevent cumulative or redundant questioning—especially where juror attention is at risk. Counsel should expect discipline consistent with Rule 403.
• Remmer hearings: The Sixth Circuit’s application of Kechego underscores that speculative or anonymously sourced, uncorroborated allegations are insufficient. Defendants should be prepared to offer credible, direct evidence of extraneous influence that plausibly could affect a verdict.

Complex Concepts Simplified

• Conspiracy (18 U.S.C. § 1201(c)): Think of conspiracy as an agreement to commit a crime, plus some action (even a legal one) that helps move the plan forward. You don’t need a signed contract or calendar date; mutual commitment to a shared unlawful objective is enough.
• Overt act: Any step that advances the plan—even if lawful (like a scouting trip) or minor (like buying zip ties)—can qualify. It need not be the crime itself.
• WMD “destructive device”: Federal law defines this broadly to include bombs and combinations of parts that can quickly become a bomb. A working bomb is not required for possession or conspiracy charges.
• Entrapment: The defense has two parts: (1) the government induced you to commit the crime (beyond mere opportunity), and (2) you weren’t predisposed (already willing) to do it. If the government shows you were already willing, the defense fails, even if agents encouraged you.
• Remmer hearing: A special evidentiary hearing about juror influence is required only when there is credible evidence of external contact or pressure likely to affect the verdict—not rumors or double-hearsay reports.
• Rule 801(d)(2)(D) party-opponent admissions (government): In the Sixth Circuit, statements by informants can be treated as the government’s own, and thus nonhearsay, when the informant is acting within the agency relationship and making statements that advance the government’s investigative objectives. The statements still must be relevant and otherwise admissible.
• Harmless error: Not every mistake at trial leads to a new trial. A non-constitutional error is harmless unless it likely had a substantial effect on the verdict.

Conclusion

The Sixth Circuit’s opinion is significant on two fronts. First, it offers a meticulous application of conspiracy and entrapment doctrines to a high-profile domestic-terrorism plot, reinforcing longstanding principles: tacit agreements suffice; overt acts needn’t be unlawful; speech can prove intent; and predisposition is the fulcrum of entrapment. Second—and most doctrinally notable—it clarifies the scope of Rule 801(d)(2)(D) in criminal cases: government-informant statements may qualify as party-opponent admissions when made within the informant’s agency and in furtherance of an investigative goal. The court explicitly rejects the district court’s restrictive “regurgitation-only” approach. Although the evidentiary error was harmless here, the clarification will guide future trial courts in the Sixth Circuit when ruling on the admissibility of informant statements.

For practitioners, the decision counsels careful preservation and development of predisposition timelines, disciplined cross-examination strategy mindful of Rule 403, and precise proffers demonstrating how informant statements furthered investigative objectives. For trial judges, it endorses active management of cumulative evidence and offers a calibrated framework for assessing when Remmer hearings are necessary. In the broader legal context, the opinion both cements core conspiracy and entrapment principles and meaningfully refines the Sixth Circuit’s distinctive approach to informant statements under Rule 801(d)(2)(D).