Background
Pete Musico and Paul Edward Bellar were tried with Joseph Morrison for their alleged roles in Adam Fox and Barry Croft Jr.’s plot to kidnap Michigan Governor Gretchen Whitmer. A jury convicted each defendant of providing material support for an act of terrorism, committing a felony motivated by gang membership or association, and felony-firearm.
The trial court instructed the jury that kidnapping could qualify as the violent felony underlying an act of terrorism. After the trial, the Michigan Court of Appeals held in the published decision People v. Morrison that kidnapping is not a “violent felony” under Michigan’s Antiterrorism Act because physical force is not an element of Michigan’s kidnapping offense. The court permitted supplemental briefing about Morrison’s effect on Musico’s and Bellar’s appeals.
The Court’s Holding
The Court of Appeals vacated all of Musico’s and Bellar’s convictions and remanded for further proceedings. Under the binding Morrison decision, kidnapping cannot serve as the predicate violent felony for providing material support for an act of terrorism. Because the jury received an instruction permitting that invalid theory and returned a general verdict, the court could not determine whether the convictions rested on kidnapping rather than another alleged predicate offense.
The instructional error also required vacatur of the gang-membership and felony-firearm convictions because the material-support offense was their underlying felony. The court declined Musico’s request to resolve the material-support charge on evidentiary-sufficiency grounds, holding that reversal for instructional error did not bar retrial under double-jeopardy principles.
The court rejected Musico’s facial and as-applied constitutional challenges to the material-support statute. It also held that sufficient evidence supported treating the Wolverine Watchmen as a gang: although its purpose was nonpecuniary, the jury could find that its purpose was unlawful and thus that it was not a nonprofit organization excluded from the statutory definition. If the gang-membership charge is retried, however, the jury must be instructed that the definition of “gang” excludes nonprofit organizations.
Key Takeaways
- Kidnapping is not a “violent felony” under Michigan’s Antiterrorism Act because the current kidnapping statute does not include physical force as an element.
- A general verdict could not stand when the jury was instructed that it could convict on kidnapping, an invalid predicate theory, and the evidence substantially concerned the kidnapping plot.
- The instructional error permits retrial because it concerns the legal basis presented to the jury rather than a determination that the evidence was insufficient.
- A group formed for an unlawful purpose does not qualify as a nonprofit organization excluded from Michigan’s statutory definition of a gang merely because its purpose is nonpecuniary.
Why It Matters
The decision applies Morrison’s statutory interpretation to two additional defendants tried by the same jury and confirms that Michigan prosecutors may not use kidnapping alone as the violent-felony predicate for a material-support-for-terrorism charge. When jurors receive both valid and invalid predicate theories and return a general verdict, the resulting uncertainty can require reversal.
The ruling also preserves the possibility of retrial, rejects Musico’s constitutional attack on Michigan’s material-support law, and clarifies that juries considering gang-membership charges must be instructed about the statutory exclusion for nonprofit organizations.