Clarifying Rule 801(d)(2)(D): Informant Statements Are Government Admissions When Made in Furtherance of Investigative Goals — United States v. Fox (6th Cir. 2025)

Clarifying Rule 801(d)(2)(D): Informant Statements Are Government Admissions When Made in Furtherance of Investigative Goals — United States v. Fox (6th Cir. 2025)

Introduction

In United States v. Adam Fox (with co-appellant Barry Gordon Croft, Jr.), the Sixth Circuit affirmed high-profile convictions arising from a 2020 conspiracy to kidnap Michigan Governor Gretchen Whitmer. A jury had convicted Fox and Croft of conspiracy to kidnap, conspiracy to use a weapon of mass destruction (WMD), and, as to Croft, possession of an unregistered destructive device under the National Firearms Act. On appeal, the defendants mounted a multi-pronged challenge: they claimed insufficient evidence; invoked entrapment; sought a Remmer hearing into alleged juror bias; objected to time limits on cross-examination of a co-conspirator; and contested a key evidentiary ruling that limited the admissibility of government informant statements.

The Court of Appeals (Judges Larsen, Readler, and Davis) issued a per curiam opinion affirming in full. The opinion is particularly significant for its treatment of Federal Rule of Evidence 801(d)(2)(D). Clarifying the reach of its precedents in Branham v. United States and United States v. Reed, the court held that informant statements may be admissible against the government as non-hearsay “party-opponent” admissions when they are made within the scope of the informant’s agency and in furtherance of an investigative goal. The district court’s narrower rule—limiting admissibility to statements that merely “regurgitated” a federal agent’s words—was error. Although the panel deemed the error harmless, its clarification meaningfully shapes future evidentiary practice in the Sixth Circuit.

Summary of the Opinion

  • Sufficiency of the Evidence:
    • Conspiracy to kidnap: Ample evidence supported that Fox and Croft tacitly agreed to a concrete plan to abduct Governor Whitmer, undertook reconnaissance, refined the plan, and took overt acts. The government did not need to prove each element of the substantive kidnapping offense to establish conspiracy.
    • Conspiracy to use a WMD: The court upheld Croft’s conviction based on evidence that he sought explosives, traveled interstate to train in demolitions, attempted to build, and then detonated an IED. Fox’s challenge was forfeited for lack of development.
    • Possession of an unregistered destructive device (Croft): Sufficient evidence supported Croft’s possession and detonation of an IED that was unregistered; Croft forfeited the argument by not substantively briefing it.
  • Entrapment: The court rejected Croft’s entrapment defense. Predisposition—anchored in pre-contact statements, ideology, planning, and a lack of reluctance—defeated the defense, regardless of any claimed inducement.
  • Remmer Hearing: No abuse of discretion in denying a Remmer hearing. The defense did not present a “colorable” and credible claim of extraneous influence likely to have affected the verdict, and the district court’s in camera inquiry sufficed.
  • Cross-Examination Time Limits: No violation of the Confrontation Clause or abuse of discretion. The trial court warned repeatedly, applied proportional time limits, and curtailed cumulative and repetitive questioning consistent with Rule 403 and trial management authority.
  • Rule 801(d)(2)(D) — Informant Statements:
    • Error: The district court erred by restricting admissibility to informant statements that merely “regurgitated” agents’ words.
    • Clarification: Informant statements are admissible as government admissions when made within the scope of the informant’s agency in furtherance of the investigative objective; direct, express authorization or word-for-word “regurgitation” is not required.
    • Harmlessness: The evidentiary error was harmless given other avenues for the defense, cumulative evidence, lack of relevance for many excluded statements, and decisive predisposition proof.

Analysis

Precedents Cited and Their Role

  • Conspiracy and Sufficiency:
    • Jackson v. Virginia standard governs sufficiency (view evidence favorably to the government).
    • Small; Blackwell; Conatser; Williams; Smith: Conspiracy may be proved circumstantially; agreement can be tacit; participation inferred from conduct.
    • Amawi: Powerful comparator—defendants’ actions (not formal assent) demonstrated adoption of a “main objective,” validating conspiracy convictions. The court analogized Fox and Croft’s meetings, training, recon, and plan refinement.
    • Williamson (1908): Conspiracy does not require agreement on specific time/place; the unlawful objective’s meeting of minds suffices.
    • Salinas; Jimenez Recio: Government need not prove all elements of the substantive crime to convict for conspiracy; the conspiracy is itself the “distinct evil.”
  • WMD and NFA:
    • 18 U.S.C. § 2332a(a)(2) (WMD) and § 921(a)(4): “Destructive devices” (e.g., bombs) are WMDs; conspiracy requires agreement and interstate nexus.
    • Alebbini: Sixth Circuit standard for § 2332a conspiracy.
    • Unthank; Rushcamp: For NFA violations, devices need not function as intended; possession of an unregistered destructive device suffices.
  • Entrapment:
    • Jacobson; Mathews; Khalil; McLernon; Barger; Sherrod; Tucker; White; Hood; Geralt: Two elements—inducement and lack of predisposition; predisposition is often decisive and focuses on pre-contact state of mind and reluctance.
    • Mitchell; Amawi: First Amendment does not bar use of speech as evidence of motive or intent; speech tied to criminal agreement is not insulated.
  • Juror Bias/Remmer:
    • Remmer; Perry; Herndon; Lanier; Kechego: A Remmer hearing is required on a “colorable” and credible claim of extraneous influence likely to affect the verdict; not every allegation qualifies. Courts may conduct in camera inquiries; credibility findings get deference.
    • Gagnon; Rushen: No absolute right to defense presence at every judge-juror interaction.
  • Cross-Examination Limits:
    • Dorsey; Fensterer; Matthews: The Constitution guarantees an opportunity for effective, not unlimited, cross-examination.
    • Geders; Rule 403; Collins: Courts may limit cumulative, repetitive, or irrelevant evidence and control the scope of examinations.
    • Reaves (via trial court’s “Bertelsman proportionality rule”): Illustrates time management by matching cross time to direct.
  • Evidence — Rule 801(d)(2)(D):
    • Branham; Reed: In the Sixth Circuit, informant statements can be non-hearsay admissions when made within the scope of the informant’s agency in furtherance of the investigation (e.g., building trust) and, in some contexts, offered for state-of-mind rather than truth.
    • Contrary authority elsewhere (e.g., Yildiz; Arroyo; Lippay; Booker) generally rejects treating government agents’ statements as party admissions against the sovereign; the Sixth Circuit adheres to Branham with guardrails.
    • Harmless-error standards: Kotteakos; Kettles; Shinseki; Chapman (distinguishing non-constitutional from constitutional error).
    • Kerley; Reichert; August; Coplan; Hardy; Washington v. Schriver: Erroneous exclusions rarely rise to constitutional dimension when other avenues exist; cumulative presentation often renders error harmless.

Legal Reasoning

1) Conspiracy to Kidnap — Tacit Agreement, Concrete Planning, Overt Acts

The court methodically recounted evidence that Fox and Croft adopted a shared objective to abduct Governor Whitmer: multiple in-person meetings (Ohio, Wisconsin FTX, Michigan FTX), explicit discussions of plans and tactics (breaching “shoot houses,” discussing security neutralization, waterborne extraction), and reconnaissance runs of the Governor’s lakeside home (boat launch scoping; bridge inspection for explosive placement; mapping routes and police proximity). Fox prepared materials, recruited expertise, and built a “kidnapping kit.” Croft trained others in demolitions, brought an IED kit, spoke of snipers and security neutralization, and detonated a device. The court emphasized that conspiracy law does not require a formal agreement or settled specifics on date/time; rather, it looks to a meeting of the minds on the criminal objective and participation, including overt acts. Applying Amawi, the court held that the jury could find a collective venture directed to the common goal of kidnapping, and that the acts undertaken were overt steps in furtherance of that goal.

The panel also rejected attempts to constitutionalize the speech evidence: statements about extremist views and threats could be used to prove intent and agreement. Citing Wisconsin v. Mitchell and Amawi, the court underscored that the First Amendment does not shield speech when it is evidence of conspiracy, and that the conviction rests on agreement and action, not mere talk.

Finally, Defendants’ arguments that the government had to prove lack of consent or a “benefit” to the kidnapper were dismissed. Salinas and Jimenez Recio foreclose importing all elements of the underlying substantive offense into a conspiracy case.

2) Conspiracy to Use a WMD — Destructive Devices and Interstate Nexus

The WMD count turned on whether the defendants agreed to use a “destructive device” (e.g., a bomb) as defined in § 921, with an interstate commerce component under § 2332a(a)(2)(C). The evidence showed Croft repeatedly advocated explosives (including to attack armored security and a bridge), trained others in demolition at multistate FTXs, carried materials to build IEDs, and detonated an IED with penny shrapnel. He traveled from Delaware to other states to further this plan. On this record, a rational jury could find a § 2332a conspiracy. Fox forfeited his WMD-specific sufficiency challenge, but the panel noted there was ample evidence as to him as well.

3) NFA Possession of an Unregistered Destructive Device (Croft)

Croft did not dispute that the device was a “destructive device” or that it was unregistered, and he did not substantively brief the sufficiency argument. Regardless, the court found that eyewitness testimony, physical evidence (including matching bomb components at his home and at the blast site), expert analysis, and an ATF records check established the offense.

4) Entrapment — Predisposition Defeats the Defense

Entrapment requires both government inducement and lack of predisposition; the latter is typically central. Here, the panel catalogued extensive pre-contact evidence: Croft’s and Fox’s social media posts, private messages about abducting a governor, recruitment and planning language, and ideological signals (e.g., III% and “boogaloo”)—all preceding government informant involvement. The court found no meaningful reluctance by either defendant; indeed, their actions showed sustained initiative. And while agents and informants created opportunities and maintained cover stories, the law allows “artifice and stratagem”; inducement requires “opportunity plus something else,” such as excessive pressure or exploitation of non-criminal motives. On this record, predisposition was proven beyond a reasonable doubt, which alone defeats the entrapment defense.

5) Remmer Hearing — “Colorable” Means Credible and Outcome-Relevant

The defense presented double-hearsay reports of a juror’s alleged pre-judgment (“going to hang them”). The district court’s jury clerk interviewed the caller; the caller had not spoken to the juror directly; the purported original co-worker refused to identify themselves or others; and the juror denied the conduct in an in camera interview, with the court finding the juror credible and attentive. Applying Kechego and related Sixth Circuit authority, the panel held that no “colorable” claim—credible and with a likelihood of affecting the verdict—had been shown, and that the limited judicial inquiry sufficed. There is no absolute right for counsel to examine the juror or to be present for every juror interaction.

6) Cross-Examination Time Limits — Effective Opportunity, Not Unlimited Time

The trial court repeatedly warned counsel about redundancy and juror disengagement, invoked proportionality (matching cross time to direct), and finally imposed a 25-minute-per-defense time limit for co-conspirator Kaleb Franks, after a 50-minute direct. The Sixth Circuit affirmed, emphasizing that courts may curtail cumulative, repetitive, or irrelevant questioning and that the Confrontation Clause requires an opportunity for effective, not boundless, cross-examination. Counsel had multiple days, prior testimony to draw upon, and alternative avenues to elicit the key points; the trial court acted within its discretion.

7) Rule 801(d)(2)(D) and Informant Statements — Clarifying Branham and Reed

This is the decision’s most consequential doctrinal clarification. The district court had permitted informant statements only when they “regurgitated” an agent’s words. The Sixth Circuit held this was too narrow:

  • Government as party-opponent: The government did not dispute that it is a party-opponent for Rule 801(d)(2)(D) purposes in criminal cases within this circuit.
  • Scope of agency and investigative purpose: Under Branham and Reed, an informant’s statements are admissible as non-hearsay admissions if made within the scope of the informant’s agency in furtherance of an investigative goal (e.g., building trust), not only when expressly dictated verbatim by an agent.
  • No categorical bar; individualized analysis required: The correct approach requires a statement-by-statement assessment of scope, purpose, and relevance—not a bright-line “regurgitation” rule.

The panel then found the error harmless under Kotteakos/Kettles (non-constitutional error standard). Many excluded statements:

  • Were not communicated to the defendants and thus could not show inducement (no causal effect on state of mind).
  • Related to other targets or separate investigations, or were cumulative of testimony the jury already heard (especially via Chappel).
  • Showed only that the government afforded opportunities or facilities, which does not amount to inducement.

Crucially, overwhelming predisposition evidence meant that, even if some inducement could be gleaned, the defense would still fail. The government carried its burden to show that the verdict was not substantially swayed by the evidentiary error.

Impact

  • Rule 801(d)(2)(D) in the Sixth Circuit:
    • Clarified standard: Informant statements are admissible as government admissions when made within the scope of agency and in furtherance of investigative goals—even absent verbatim “authorization.”
    • Practical effect: Defendants advancing entrapment or other defenses can seek admission of informant statements that fostered the investigative objectives (e.g., gaining confidence, encouraging planning). Prosecutors must be prepared to confront such admissions or argue relevance, scope, or Rule 403 limits.
    • Statement-by-statement rulings: District courts should abandon categorical “regurgitation” limitations and instead perform particularized admissibility analyses tied to the informant’s role, directives, and the investigation’s goals.
    • Circuit divergence: The Sixth Circuit remains among the few circuits permitting this category of admissions; forum matters in evidentiary strategy.
  • Entrapment Litigation:
    • Predisposition primacy: Strong pre-contact speech, ideology, and planning will often eclipse inducement evidence. Parties should anticipate that social media and private communications can be decisive.
    • Inducement threshold: “Opportunity plus” remains the touchstone; mere facilitation or “going along” is generally insufficient.
  • Trial Management:
    • Remmer: The “colorable claim” threshold is both credible and outcome-likely; double hearsay and anonymous reports will rarely suffice.
    • Cross-examination: Judges can impose proportional time limits after warning; counsel should streamline to avoid Rule 403 concerns and juror disengagement.
  • Substantive Criminal Law:
    • Conspiracy proof: The court reaffirmed that conspiracies can be shown by tacit assent and coordinated acts; specific date/time is unnecessary if the criminal objective is clear and pursued.
    • WMD reach: Improvised explosive devices qualify as “destructive devices” (and thus WMDs) when used or conspired to be used against persons or property; interstate travel in furtherance satisfies § 2332a’s commerce requirement.

Complex Concepts Simplified

  • Conspiracy:
    • Agreement can be tacit. You don’t need a signed pact; a “meeting of the minds” on a criminal objective, shown by discussions and coordinated action, is enough.
    • Overt act: Any step taken to advance the plan (even if lawful by itself) counts.
    • No need to prove the completed underlying crime’s elements to convict for conspiracy.
  • Entrapment:
    • Two elements: Government inducement and lack of predisposition.
    • Inducement: Not just offering the chance; there must be extra pressure or exploitation of non-criminal motives.
    • Predisposition: Focuses on the defendant’s mindset before contact with agents—prior statements, intent, and reluctance (or its absence).
    • Bottom line: If the defendant was already willing, entrapment fails even if the government encouraged or facilitated.
  • Rule 801(d)(2)(D) — Party-Opponent Admissions by Government Informants (Sixth Circuit):
    • Statements by a government informant can be treated as the government’s own words if made within the scope of the informant’s role and in furtherance of the investigation.
    • Not limited to parroting agent instructions; building trust, prompting plans, or advancing investigative objectives can qualify.
    • Relevance still matters: to show inducement, the statement typically must have been communicated to, and had some causal bearing on, the defendant’s state of mind.
  • Remmer Hearing:
    • Required only when there’s a credible, specific, and outcome-relevant claim of external influence on a juror.
    • Courts may investigate in camera; credibility findings get deference absent clear error.
  • Harmless Error:
    • Non-constitutional evidentiary errors require reversal only if they likely swayed the verdict.
    • If the same point was proven another way, or the record is overwhelming on the contested issue, the error is usually harmless.
  • WMD and Destructive Devices:
    • An IED is a “destructive device,” and thus a WMD under federal law; using, attempting, or conspiring to use such a device against persons or property is prohibited.
    • For the NFA, the device’s operability as intended is not required; possession of an unregistered destructive device is enough.
  • First Amendment and Criminal Evidence:
    • Speech—even extremist rhetoric—can be used as evidence of intent, motive, and agreement in a conspiracy case.
    • The conviction must rest on conduct and agreement, not on speech alone.

Conclusion

United States v. Fox is a comprehensive affirmation of two high-profile convictions, but its long-term legal significance lies in evidence law. The Sixth Circuit clarified that under Rule 801(d)(2)(D), government informant statements can be admitted as party-opponent admissions when made within the scope of the informant’s agency and in furtherance of investigative goals, rejecting a district court’s unduly narrow “regurgitation” rule. Although the panel deemed the error harmless due to the robust record—particularly on predisposition—its doctrinal clarification is poised to influence trial practice in entrapment litigation and beyond, requiring statement-by-statement admissibility determinations that track agency scope and investigative objectives.

The opinion also reinforces well-settled principles across criminal law: tacit agreements and coordinated actions can prove conspiracy; predisposition, especially pre-contact rhetoric and conduct, can doom entrapment defenses; Remmer hearings require credible, outcome-relevant claims; and trial courts have latitude to structure cross-examination to avoid redundancy and juror fatigue. For practitioners in the Sixth Circuit, Fox provides both a sharper evidentiary tool and a cautionary baseline: the availability of informant admissions does not guarantee relief where the government’s predisposition proof is compelling and where alleged errors do not materially sway the verdict.

Case Details

Year: 2025
Court: Court of Appeals for the Sixth Circuit

Comments