Background
Joseph Matthew Morrison was a founder and self-described unit commander of the Wolverine Watchmen, a Michigan militia group. In 2020, federal authorities arrested Adam Fox and Barry Croft Jr. for conspiring to kidnap Governor Gretchen Whitmer. Morrison, along with two codefendants, was separately charged in state court for his alleged role in supporting that plot. An FBI-recruited confidential informant, Dan Chappel, infiltrated the Watchmen and documented the group’s activities over several months, including field training exercises at Morrison’s property, surveillance of the Governor’s vacation residence, and encrypted communications on the Wire platform.
Following a two-week jury trial in Jackson Circuit Court, Morrison was convicted of gang-membership felonies (MCL 750.411u), providing material support for terrorist acts (MCL 750.543k(1)(b)), and felony-firearm (MCL 750.227b). He was sentenced to 4 to 20 years on the first two counts and a consecutive 2 years for felony-firearm. The material-support conviction served as the predicate felony for both the gang-membership and felony-firearm charges.
Post-conviction, Morrison moved for relief on the ground that kidnapping — central to the Whitmer plot — does not qualify as a “violent felony” under Michigan’s Antiterrorism Act, and that the trial court’s jury instructions permitting conviction on a kidnapping predicate were therefore legally erroneous. The trial court denied relief, reasoning that the prosecution had also presented evidence of plans to kill the Governor, which would constitute murder. Morrison appealed, and the prosecution cross-appealed.
The Court’s Holding
The Court of Appeals unanimously vacated all three convictions and remanded for a new trial. The court held that Michigan kidnapping (MCL 750.349, as amended in 2006) is not a “violent felony” as defined by MCL 750.543b(h) of the Antiterrorism Act, because the 2006 amendment stripped force as a statutory element of kidnapping. A “violent felony” under the Act requires that an element of the offense be “the use, attempted use, or threatened use of physical force against an individual.” The amended kidnapping statute requires only knowing restraint with certain intent — it contains no force element. The court rejected the prosecution’s arguments based on standard jury instructions (which predated the 2006 amendment and lack the force of law), the federal antiterrorism framework, and statutory cross-references within the Act.
The court further held that the erroneous jury instruction — which listed kidnapping alongside murder and other offenses as a qualifying “violent felony” — was not harmless. Because the verdict form asked only whether Morrison was guilty of providing material support for an act of terrorism, without specifying the predicate offense, the court could not determine whether the jury convicted him based on kidnapping (an impermissible basis) or on murder or another permissible theory. Given the volume of trial testimony about the kidnapping plot and the trial court’s explicit inclusion of kidnapping in its instructions, the court found a reasonable probability the jury relied on the invalid predicate, tainting the verdict. Because the material-support conviction was the predicate for the gang-membership and felony-firearm convictions, all three were vacated. The court held that retrial on valid predicate theories does not violate double jeopardy.
Key Takeaways
- Michigan kidnapping (MCL 750.349 post-2006 amendment) lacks a force element and therefore does not qualify as a “violent felony” under Michigan’s Antiterrorism Act — it cannot serve as the predicate “act of terrorism” for a material-support charge.
- Where a jury instruction presents both a valid and an invalid theory of guilt on a general verdict form, a conviction must be vacated if there is a reasonable probability the jury relied on the impermissible theory, even if sufficient evidence existed to support the valid theory.
- Standard criminal jury instructions that predate a statutory amendment and have not been updated do not reflect current law and cannot supply missing statutory elements.
- Retrial on the valid predicate theories (e.g., murder, assault with intent to commit murder) is not barred by double jeopardy, as the vacatur stems from an instructional error unrelated to factual sufficiency on those theories.
Why It Matters
This decision exposes a significant gap in Michigan’s antiterrorism framework created by the Legislature’s 2006 revision of the kidnapping statute. By removing force as a required element of kidnapping — while leaving the Antiterrorism Act’s “violent felony” definition unchanged — the Legislature inadvertently excluded one of the most intuitive terrorism predicates from the Act’s reach. Prosecutors pursuing state terrorism charges in cases involving kidnapping plots must now anchor their theories on other offenses, such as murder or assault with intent to commit great bodily harm, or seek a legislative fix.
For practitioners, the case is also a pointed reminder that jury instructions must track the current statutory text, not historical versions. Outdated pattern instructions that survive a statutory amendment without revision can silently introduce invalid legal theories — and where a general verdict makes it impossible to separate the valid from the invalid, the entire conviction is at risk.