Providing material support for terrorist acts; MCL 750.543k(1)(b); Act of terrorism; “Violent felony” (MCL 750.543b(h)); Kidnapping; MCL 750.349; Gang-membership felonies; MCL 750.411u; Felony-firearm; MCL 750.227b; Jury instructions; Invalid theory; People v Urbanski

The court held that kidnapping is not a “violent felony” under Michigan’s Antiterrorism Act and that defendant’s convictions had to be vacated because the jury instructions allowed conviction on that invalid theory. Defendant was convicted of gang-membership felonies, providing material support for terrorist acts, and felony-firearm based on his alleged support for a plot involving Governor Whitmer. On appeal, the court first held that kidnapping could not serve as the underlying “act of terrorism” because the statutory definition requires an act that “would be a violent felony,” and a violent felony requires “the use, attempted use, or threatened use of physical force against an individual[.]” The court explained that when the Antiterrorism Act was enacted, the kidnapping statute contained force language, but the Legislature later amended MCL 750.349 and “removed from the kidnapping statute all references to force[.]” Thus, because “the ‘use, attempted use, or threatened use of physical force’ is not an element of kidnapping,” the court held that kidnapping is not a violent felony under MCL 750.543b(h). The court rejected the prosecution’s reliance on jury instructions because they “do not have the force of law” and are “not legal authority.” It also rejected reliance on federal antiterrorism law and the Act’s reference to kidnapping in the definition of “dangerous to human life,” reasoning that “under the plain language of the statutes as they currently exist, kidnapping is not an act of terrorism.” The court next held that the instructional error required reversal because the trial court specifically identified kidnapping as a violent felony, the jury heard “considerable testimony about the plot to kidnap Governor Whitmer,” and there was no way to know whether the jury relied on the invalid kidnapping theory. Because the material-support conviction supplied the underlying felony for the gang-membership and felony-firearm convictions, all convictions were vacated and the case was remanded.