Department of Justice internal investigation on Ruby Ridge The following report is the result of an internal investigation by the Department of Justice into FBI's actions at Ruby Ridge, Idaho in August 1992. The end result of their actions are a dead U.S. Marshall and Vicki and Sammy Weaver killed. Garrity or GJ refers to text deleted under a 1967 Supreme Court ruling (Garrity v. New Jersey) which grants government employees immunity from prosecution in exchange for cooperating with an administrative investigation. Jeff Chan __ TABLE OF CONTENTS I. INTRODUCTION A. Overview . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Significant Findings . . . . . . . . . . . . . . . . . . 2 C. Significant Recommendations . . . . . . . . . . . . . . .7 II.ORIGINS OF THE INVESTIGATION AND METHODOLOGY EMPLOYED 9 III. FACTUAL SUMMARY. . . . . . . . . . . . . . . . . . ..13 A. The U. S. Marshals Service . . . . . . . . . . . . . . 13 B. Federal Bureau of Investigation - Deployment of Hostage Rescue Team 16 C. Rules of Engagement and the Death of Vicki Weaver on August 22 16 D. The Prosecution . . . . . . . . . . . . . . . . . . . . .19 IV. SPECIFIC ISSUES INVESTIGATED . . . . . . . . . . . . . . 21 A. Investigation of Weaver by Bureau of Alcohol, Tobacco and Firearms 21 1. Introduction . . . . . . . . . . . . . . . . . . . . 21 2. Statement of Facts . . . . . . . . . . . . . . . . . 21 a. Early Law Enforcement Contact With Randy Weaver . 21 b. BATF Contact with Weaver . . . . . . . . . . . . .25 c. Sale of Weapons by Weaver to BATF Informant . . . 26 d. Delay in Obtaining Indictment and BATF Efforts to Enlist Weaver as an Informant . . 29 e. Arrest and Arraignment of Weaver on Weapons Charge 31 3. Discussion . . . . . . . . . . . . . . . . . . . . . 32 a. The Decision of BATF to Target Weaver . . . . . . 32 b. Possible Entrapment by the BATF Informant . . . . 33 c. Delay in Obtaining indictment . . . . . . . . . .35 4. Conclusion. . . . . . . . . . . . . . . . . . . . .35 B. The Failure of Weaver to Appear for Trial . . . . . . . 36 1. Introduction . . . . . . . . . . . . . . . . . . . . 36 2. Statement of Facts . . . . . . . . . . . . . . . . 36 a. January 18, 1991 Arraignment . . . . . . . . . . .36 b. Events Occurring From the Arraignment Through February 20,1991 38 (1) Communication With Weaver . . . . . . 38 (2) The "Queen of Babylon" Letters and the Threat Assessment by the U.S. Marshals Service 40 c. February 20, 1991 -- The Rescheduled Trial Date. . .44 d. Discovery of the Richins Letter and the Response of the Government 46 e. Decision to Present and Indictment to the Grand Jury 53 f. March 14, 1991 Indictment for Failure to Appear 55 3. Discussion. . . . . . . . . . . . . . . . . . . . . .57 a. Government Knowledge of Erroneous Richins Letter Prior to February 20, 1991 57 b. Appropriateness of Governmental Response to the Richins Letter 57 c. Propriety of Seeking an Indictment on March 14, 1991 60 d. [G.J.] . . . . . . . . . . . . . . . . . . . . . .61 4. Conclusion . . . . . . . . . . . . . . . . . . . . . 63 C. Efforts by the Marshals Service to Effect the Arrest of Weaver 64 1. Introduction. . . . . . . . . . . . . . . . . . . . .64 2. Statement of Facts . . . . . . . . . . . . . . . . .64 a. Involvement of the Marshals Service Special Operations Group 64 b. SOG Reconnaissance and Recommendations . . . . .66 c. Additional Contacts With Intermediaries . . . . .70 d. Exchange of Surrender Teams . . . . . . . . . . .71 e. Post-Negotiation Investigation . . . . . . . . . 73 f. Briefing of the Marshals Service Director . . . .76 g. Development of Three Phase Operational Plan . . .77 (1) Phase I . . . . . . . . . . . . . . . . . . .77 (2) Phase II . . . . . . . . . . . . . . . . . . 78 (3) Transition to Phase III . . . . . . . . . . .81 h. Delay in Implementing the Undercover Operation ..83 3. Discussion. . . . . . . . . . . . . . . . . . . . . 83 a. The Initial Response of the Marshals Service to Weaver's Failure to Appear 83 b. Consideration by Marshals Service of Alternatives to Secure the Arrest of Weaver 85 c. Pressure Exerted on Marshals Service to Arrest Weaver 88 (1) The Court . . . . . . . . . . . . . . . . . 89 (2) The Media . . . . . . . . . . . . . . . . . 90 (3) The U. S. Attorney's Office . . . . . . . . 91 d. Impact of Delay Pending Hudson Confirmation . . .94 4. Conclusion . . . . . . . . . . . . . . . . . . . . .95 D. Marshals Service Activities Between August 17 and August 21, 1992 96 1. Introduction. . . . . . . . . . . . . . . . . . . . 96 2. Statement of Focus . . . . . . . . . . . . . . . . 96 a. Preparation for Surveillance . . . . . . . . . . 96 b. Trip of August 21, 1992 to Weaver Property. . . 99 c. Shooting at the Y . . . . . . . . . . . . . . . 108 (1) Account of Cooper and Roderick . . . . . . 109 (2) The OP Team. . . . . . . . . . . . . . . . 112 (3) Account of Weaver and Harris. . . . . . . . 113 d. Events Following the Gunfire. . . . . . . . . . 115 3. Discussion. . . . . . . . . . . . . . . . . . . . 117 a. Alleged Intent of the Marshals to Force a Confrontation with the Weavers 117 (1) The .9 mm Weapon . . . . . . . . . . . . . 118 (2) "Zeroing" the Weapons . . . . . . . . . . . 120 (3) Presence of a Medic on the Surveillance Team 120 (4) Tossing the Rocks. . . . . . . . . . . . . .121 (5) The Trip to the Lower Garden . . . . . . . .122 b. The Initiation of Gunfire At the Y . . . . . . .122 (1) Witness Accounts. . . . . . . . . . . . . . 123 (2) Physical Evidence . . . . . . . . . . . . . 123 (3) The First Shot. . . . . . . . . . . . . . . 124 c. The Shooting of Sammy Weaver . . . . . . . . . .125 d. Allegation the Marshals Attempted to Cover up the Shooting of Sammy Weaver 126 4. Conclusion. . . . . . . . . . . . . . . . . . . . .127 E. Activation of FBI Hostage Rescue Team and SWAT Teams on August 21, 1992 and Initial Intelligence Gathering 128 1. Introduction . . . . . . . . . . . . . . . . . . . 128 2. Statement of Facts . . . . . . . . . . . . . . . . 128 a. The Marshals' Report of the Shooting. . . . . . 128 b. Decision to Deploy the HRT. . . . . . . . . . . 132 c. Initial Intelligence Gathering and Rescue of the Marshals 138 3. Discussion. . . . . . . . . . . . . . . . . . . . .148 a. The Marshals' Report of the Shooting . . . . . .148 b. Decision to Deploy the HRT. . . . . . . . . . . 150 c. Initial Intelligence Gathering . . . . . . . . .151 4. Conclusion. . . . . . . . . . . . . . . . . . . . .154 F. FBI's Rules of Engagement and Operations on August 21 and August 22, 1992 155 1. Introduction. . . . . . . . . . . . . . . . . . . 155 2. Statement of Facts. . . . . . . . . . . . . . . . .156 a. The Formulation of Rules of Engagement En Route to Idaho on August 21, 1992 156 b. Formulation of the Rules of Engagement and Operations Plan on August 22 163 c. Interpretation of Rules of Engagement by Law Enforcement Personnel 173 d. Deployment of FBI, HRT, SWAT, and U.S. Marshals Services SOG Personnel at Ruby Ridge 184 e. Use of the Helicopter . . . . . . . . . . . . . 187 f. Placement of HRT Sniper/Observers in Area Surrounding the Weaver Cabin 188 g. Circumstances Involving the Two Rifle Shots Taken by HRT member Lon Horiuchi 189 (1) The First Shot . . . . . . . . . . . . . . 189 (2) The Second Shot . . . . . . . . . . . . . . 194 h. Initial Surrender Announcement . . . . . . . . .199 3. Discussion. . . . . . . . . . . . . . . . . . . . .200 a. FBI Rules of Engagement . . . . . . . . . . . . 200 (1) Factors Considered in the Formulation of the Rules of Engagement 200 (2) Approval of the Rules of Engagement. . . . .201 (3) The FBI Standard Policy on the Use of Deadly Force and the Constitutionality of the Rules of Engagement 205 b. Initial Deployment of Law Enforcement Personnel to Ruby Ridge 209 c. The HRT Rifle Shots Fired on August 22, 1992 . .211 (1) The Applicable Standard for Review. . . . . 211 (2) The First Shot . . . . . . . . . . . . . . .214 (3) The Second Shot . . . . . . . . . . . . . . 218 (4) Use of the Helicopter to Draw Subjects out of Cabin 225 (5) Surrender Announcement . . . . . . . . .. . 226 4. Conclusion. . . . . . . . . . . . . . . . . . . . .228 G. FBI Internal Review of HRT Shots Taken on August 22, 1992 229 [OMITTED] 1. Introduction . . . . . . . . . . . . . . . . .. . .229 2. Statement of Facts. . . . . . . . . . . ... . . . .229 3. Discussion. . . . . . . . . . . . . . . . . . . . .230 4. Conclusion. . . . . . . . . . . . . . . . . .. . .232 H. Law Enforcement Operations at Ruby Ridge From August 22,1992 Until August 31, 1992 233 1. Introduction . . . . . . . . . . . . . . . . . . . 233 2. Statement of Facts. . . . . . . . . . . . . . . . 233 a. Removal of Law Enforcement Personnel From the Mountain Following Horiuchi's Shots 233 b. Command and Control Structure. . . . . . . . . .234 c. Tactical Operations and Discovery of Sammy Weaver's Body 238 d. Change from Rules of Engagement to the FBI Standard Deadly Force Policy 240 e. Evidence of Vicki Weaver's Death. . . . . . . . 242 f. Initial Steps Toward Negotiation. . . . . . . . 244 g. Continuing Efforts of the FBI Hostage Negotiators 246 h. Efforts of Nongovernmental Negotiations . . . . 248 i. Decisions to Send Howen to Ruby Ridge. . . . . .252 j. Howen's Activities at Ruby Ridge. . . . . . . . 253 3. Discussion. . . . . . . . . . . . . . . . . . . . 258 a. FBI Decision to Remove Law Enforcement Personnel From the Mountain on Saturday Night 258 b. Effectiveness of FBI Control and Command of the Crisis Site 260 c. FBI Attempts to Resolve the Crisis . . . . . . .261 (1) Factors Hindering Negotiations. . . . . . . 261 (2) Balance of Tactical and Negotiation Strategies 263 d. Evidence of Vicki Weaver's Death. . . . . . . . 266 e. Howen's Activities at Ruby Ridge. . . . . . . . 267 4. Conclusion. . . . . . . . . . . . . . . . . . . . .268 I. FBI Crime Scene Investigation. . . . . . . . . . . . .269 1. Introduction. . . . . . . . . . . . . . . . . . . .269 2. Statement of Facts. . . . . . . . . . . . . . . . .269 a. Background. . . . . . . . . . . . . . . . . . . 269 b. Method of Searching the Y Crime Scene. . . . . .271 (1) Triangulation Not Utilized. . . . . . . . . 274 (2) The "Magic" Bullet. . . . . . . . . . . . . 274 c. Investigation by the FBI's Shooting Incident Review Team 276 d. Searches of the Cabin and Surrounding Area. . . 277 3. Discussion. . . . . . . . . . . . . . . . . . . . .280 a. Techniques Employed to Locate Evidence. . . . . 280 b. Techniques Used to Record the Location of Evidence 281 c. The "Magic Bullet" and Allegations of Staged Evidence 282 d. Erroneous FBI Diagram of Sniper/Observer Position 283 e. Erroneous Diagram of the Y. . . . . . . . . . . 283 f. Jackie Brown and Cabin Clean Up. . . . . . . . .283 4. Conclusion. . . . . . . . . . . . . . . . . . . . .286 J. The FBI Laboratory. . . . . . . . . . . . . . . . . . 286 1. Introduction. . . . . . . . . . . . . . . . . . . .286 2. Statement of Facts. . . . . . . . . . . . . . . . .286 a. FBI Laboratory Processing Procedure. . . . . . .286 b. Timeliness and Neglected Tests. . . . . . . . . 287 (1) Degan's Backpack. . . . . . . . . . . . . . 289 (2) Blood and Hair Examinations. . . . . . . . .289 c. Refusal to Perform Tests and Hiring of Independent Experts 292 (1) Refusal to Conduct Test. . . . . . . . . . .292 (2) Shooting Reconstruction. . . . . . . . . . .292 (3) Wound Ballistics and Metal Detection . . . .294 (4) Acoustic Testing. . . . . . . . . . . . . . 294 d. Failure to Comply with Discovery. . . . . . . . 295 3. Discussion. . . . . . . . . . . . . . . . . . . . .296 a. Problems with Delays in Test Results. . . . . . 296 b. Failure to Provide Expertise and the Hiring of Independent Experts 299 c. Discovery Demand for Test Firings and Laboratory Notes 300 4. Conclusion. . . . . . . . . . . . . . . . . . . . 301 K. The Preliminary Hearings of Weaver and Harris. . . . .301 1. Introduction. . . . . . . . . . . . . . . . . . . .301 2. Statement of Facts . . . . . . . . . . . . . . . . 302 a. Arrest and Initial Processing of Weaver and Harris 302 b. September 10-11, 1992 . . . . . . . . . . . . . 304 c. [G.J.]. . . . . . . . . . . . . . . . . . . . . 308 (1) [G.J.]. . . . . . . . . . . . . . . . . . . 308 (2) Beginning of the Harris Preliminary Hearing.309 d. September 16, 1992. . . . . . . . . . . . . . . 311 (1) [G.J.]. . . . . . . . . . . . . . . . . . . 311 (2) Harris Preliminary Hearing. . . . . . . . . 312 (3) Weaver Preliminary Hearing. . . . . . . . . 315 e. September 17, 1992. . . . . . . . . . . . . . . 316 f. Subsequent Defense Challenges. . . . . . . . . .317 3. Discussion. . . . . . . . . . . . . . . . . . . . .319 4. Conclusion. . . . . . . . . . . . . . . . . . . . .324 L. Scope of the Indictment and Alleged Prosecutorial Misconduct Before the Grand Jury 325 1. Introduction. . . . . . . . . . . . . . . . . . . .325 2. Statement of Facts. . . . . . . . . . . . . . . . .326 a. Scope of the Indictment: The Conspiracy Count. .326 b. Evidential Support for Certain Overt Acts and Substantive Offenses 331 c. [G.J.]. . . . . . . . . . . . . . . . . . . . . 333 d. [G.J.]. . . . . . . . . . . . . . . . . . . . . 337 e. [G.J.]. . . . . . . . . . . . . . . . . . . . . 352 f. Decision to Seek the Death Penalty. . . . . . . 356 3. Discussion. . . . . . . . . . . . . . . . . . . . .359 a. Scope of the Indictment: The Conspiracy Count. .359 b. [G.J.]. . . . . . . . . . . . . . . . . . . . . 366 c. [G.J.]. . . . . . . . . . . . . . . . . . . . . 373 d. Decision to Seek the Death Penalty. . . . . . . 375 4. Conclusion 377 M. Alleged Problems with the FBI's Participation and Cooperation in the Discovery Process 378 1. Introduction. . . . . . . . . . . . . . . . . . . . .378 2. Statement of Facts. . . . . . . . . . . . . . . . . .379 a. Defining the Scope of Discovery. . . . . . . . . .379 b. The FBI Response to Discovery Demands. . . . . . .381 c. Attempts to Resolve the Discovery Disputes. . . . 385 (1) Documents at Issue. . . . . . . . . . .385 (2) Negotiations Among the Parties. . . . 388 d. The Defense Subpoena Deuces Tecum For the Shooting Incident Report 394 3. Discussion. . . . . . . . . . . . . . . . . . . . .402 a. FBI Resistance to USAO Discovery Requests. . . .402 b. Problems With Producing the Complete Shooting Incident Report and Supporting Materials 407 4. Conclusion. . . . . . . . . . . . . . . . . . . . .413 N. Alleged Problems With the Participation of the FBI in Case Preparation and Its Relationship With Other Members of the Trial Preparation Team 415 1. Introduction. . . . . . . . . . . . . . . . . . . .415 2. Statement of Facts. . . . . . . . . . . . . . . . .415 a. Defining the Structure of the Trial Team and the Role and Responsibilities of the Individual Members 415 (1) The Lead Agency Concept and the Initial Disagreement Regarding the Interviewing of Witnesses in Iowa 415 (2) The Decision to Assign Members of the Marshals Service and BATF to Assist in Case Preparation 420 (3) The First Team Meeting. . . . . . . . 426 b. Specific Problems in Case Preparation Interviews Conducted by the Marshals Service and BATF Agents 427 (1) Interviews Conducted by the Marshals Service and BATF Agents 427 (2) Acoustical Test. . . . . . . . . . . . 433 (3) Cooperation and Trust Among Trial Team Members 434 (i) Historical Problems in the Working Relationship Between the USAO andthe FBI 437 (ii) Problems in the Working Relationship Among Team Members 439 (4) Attempts to Interview FBI Officials at Headquarters 445 3. Discussion. . . . . . . . . . . . . . . . . . . . . .448 a. Decision to Have the Marshals Service and BATF Assist in Case Preparation 448 b. The Iowa Interviews and the Failure to Document the Results 449 c. Acoustical Experiment at Ruby Ridge. . . . . . . .451 d. Attempts to Interview FBI Officials. . . . . . . .453 e. Relationship Among the Investigative Team. . . . .454 4. Conclusion. . . . . . . . . . . . . . . . . . . . . .455 O. Alleged Failure of USAO to Notify the Defense of Brady Material and Other Important Information 456 1. Introduction. . . . . . . . . . . . . . . . . . . .456 2. Statement of Facts. . . . . . . . . . . . . . . . .456 a. Defense Subpoenas for FBI and Marshals Service Manuals and Personnel Files 456 b. Financial Compensation of Informant Fadeley . . 466 c. Late Production of the Calley Notes . . . . . . 473 d. Neal Notes . . . . . . . . . . . . . . . . . . .477 e. The L-1 Bullet and L Bullet Photographs . . . . 482 f. The Late Production of the Shooting Incident Report and Supporting Materials and the October 26, 1993 Court Order 488 3. Discussion . . . . . . . . . . . . . . . . . . . . 491 a. Response of the Government to the Defense Subpoenas for FBI and Marshals Service Manuals and Personnel Files 456 b. Failure to Disclose Financial Compensation Arrangement with Informant Fadeley c. Late Production of the Calley Notes . . . . . . 473 d. Late Disclosure of the Neal Interview. . . . . .477 e. The L Bullet Photographs . . . . . . . . . . . .482 4. Conclusion . . . . . . . . . . . . . . . . . . . . 503 V. RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . 505 VI. CHRONOLOGY OF EVENTS . . . . . . . . . . . . . . . . . 509 VII. IDENTIFICATION OF PARTICIPANTS . . . . . . . . . . . .528 --------------------------------------------------------------------------- DEPARTMENT OF JUSTICE REPORT ON INTERNAL REVIEW REGARDING THE RUBY RIDGE HOSTAGE SITUATION AND SHOOTINGS BY LAW ENFORCEMENT PERSONNEL I. EXECUTIVE SUMMARY A. Overview In February 1993, the Office of Professional Responsibility ("OPR") of the U.S. Department of Justice (the "Department") was informed of allegations made by defense counsel for Randall ("Randy") Weaver and Kevin Harris in the criminal case of United States v. Weaver which was pending in the federal district court in Idaho. Defense counsel alleged that employees of several components of the Department had engaged in criminal and professional misconduct during the investigation, apprehension, and prosecution of Randy Weaver and Kevin Harris. The Department decided to defer action on this matter until the criminal trial was completed. In July 1993, a jury acquitted Weaver and Harris of charges stemming from the murder of a federal officer. Following the acquittal, numerous additional allegations wereraised by defense counsel an other sources against the Bureau ofAlcohol, Tobacco and Firearms ("BATF"), the U.S. Marshals Service ("Marshals Service") , the Federal Bureau of Investigation ("FBI" or "Bureau") and the U.S> Attorney's Office for the District of Idaho ("USAO"). Included among these allegations were claims that Department employees had unlawfully caused the deaths of Sammy and Vicki Weaver, had taken actions that had obstructed justice, had committed perjury and had engaged in other criminal and ethical misconduct. In late July 1993, attorneys from OPR and the Criminal Division of the Department, assisted by inspectors form the FBI, began an investigation of these allegations. This report details the results of this investigation and traces chronologically the events that occurred in the Weaver matter. The early sections of the report focus on Weaver's sale of illegal firearms to a BATF informant, BATF's unsuccessful attempt to enlist Weaver as an informant, the subsequent governmental delay in seeking an indictment on the firearms violations, and Weaver's arrest on weapons charges followed by his subsequent failure to appear for trial on those charges. Another area of investigative inquiry focuses on the efforts of the Marshals Service to apprehend Weaver. These efforts culminated in the August 21, 1992 gun battle at Ruby Ridge which took the lives of Deputy Marshal William Degan and Weaver's son, Sammy Weaver. Next, the report contains a discussion of the involvement of the FBI in the Weaver matter, including its initial intervention in the crisis, its responsibility for the death of Vicki Weaver and wounding of Kevin Harris on August 22, 1992, its handling of the crisis including its attempts to end the week-long standoff, its handling of the crime scene searches and its subsequent activities in assisting the USAO in preparing the Weaver case for trial. Finally, the last section of the report addresses the handling by the USAO and the investigative agencies of the prosecution of Weaver and Harris including representation made by the U.S. Attorney to the court prior to the beginning of Harris' preliminary hearing, the conduct of the Assistant U.S. Attorney before the grand jury and the untimely disclosure of critical information to the defense. We found that many of the allegations of misconduct were not supported by the evidence. However, we did find merit in some of the more serious charges. As a result, we have asked that the appropriate component of the Department examine for prosecutive merit the conduct of the FBI sniper/observer who fired the shots on August 22, 1992. In addition, because our investigation indicated that Assistant U.S. Attorney Ronald Howen took certain questionable actions during the investigation and prosecution of the Weaver case, we have recommended that the Executive Office for United States Attorneys examine our analysis of his conduct and take whatever administrative action it deems appropriate. Finally, we have formulated a series of recommendations that address the problems that we reviewed or uncovered during our investigation. B. Significant Findings In October 1989, Randy Weaver sold illegal weapons to a BATF informant. When BATF agents later attempted to enlist Weaver as an informant in their investigation of the Aryan Nations, Weaver refused to cooperate. Seven months later, the government indicted Weaver for the illegal weapons sales. We have found no evidence to support the claim that BATF targeted Weaver because of his religious or political beliefs. Similarly, we found insufficient evidence to sustain the charge that Weaver was illegally entrapped into selling the weapons. When Weaver was arraigned on the weapons charges in January 1991, he was told that his trial would commence on February 19, 1991. Two weeks later, the court clerk notified the parties that the trial date had been changed to February 20, 1991. Shortly thereafter, the U.S. Probation Office sent Weaver a letter which incorrectly referenced his trial date as March 20, 1991. After Weaver failed to appear for trial on February 20, the court issued a bench warrant for his arrest. Three weeks later, on March 14, a federal grand jury indicted Weaver for his failure to appear for trial. We found that: the government, especially the USAO, was unnecessarily rigid in its approach to the issues created by the erroneous letter; that the USAO improvidently sought an indictment before March 20, 1991; [G.J.] From February 1991 through August 1992, the Marshals Service was involved in efforts to apprehend Weaver to stand trial for the weapons charges and for his failure to appear fortrial. These efforts included gathering information about Weaver and developing a plan to arrest him. Base on information that it collected, the Marshals Service learned that for many years Weaver had made statements about his intent to violently confront federal law enforcement officials. As a result, the Marshals Service concluded that Weaver intended to resist violently governmental attempts to arrest him. Thereafter, the Marshals Service investigated and carefully considered alternatives that would enable it to arrest Weaver without endangering his family or law enforcement personnel. It concluded that an undercover operation would be the most prudent way to proceed. In August 1992, six marshals travelled to an area in northern Idaho known as Ruby Ridge to conduct surveillance of the Weaver residence in preparation for the undercover operation. During the surveillance mission, the Weaver dog discovered the marshals and began to bark. The marshals retreated with the dog, Harris, Randy Weaver and his son, Sammy Weaver, and other family members in pursuit. At an area known as the "Y," a gun battle occurred in which Deputy Marshal Degan and Sammy Weaver were killed. We conclude that the marshals took a measured approach in developing a plan to apprehend Weaver. Throughout the 18 month period that the marshals were responsible for apprehending Weaver, they carefully devised a plan intended to pose the least amount of risk to Weaver, his family, and the marshals. At no time did we find that it was the intent of the marshals to force a confrontation with Weaver or his family. Although some may question the expenditures of manpower and resources by the Marshals Service during this 18 month period, we believe that institutional pressure created by the existence of a bench warrant and an indictment, left the Marshals Service with little choice but to proceed as it did. Moreover, the USAO did little to assist the Marshals Service in this matter. Indeed, during the first part of this process the USAO thwarted the efforts of the Director of the Marshals Service to focus the court on the danger involved in making the arrest and incorrectly terminated efforts by the Marshals Service to negotiate with Weaver through intermediaries. With regard to the responsibility for the deaths that occurred at the Y, the marshals assert that Harris initiated the fire fight when he shot Deputy Marsha Degan while Weaver and Harris claim that the marshals fired the first shots. After a thorough review of all of the evidence made available to us, we have been unable to determine conclusively who fired the first shot during the exchange of gunfire. Although there is evidence that one of the marshals shot Sammy Weaver during the exchange of gunfire, we found no proof that the shooting of the boy was anything other than an accident. In fact, the evidence indicates that the marshals did not know that Sammy Weaver had been killed or wounded until his body was discovered by the FBI in a shed outside the Weaver cabin two days later. Nor did wediscover any evidence indicating that the marshals attempted to cover up their roles in the incident or that they exaggerated the events to cause a more drastic FBI response than was appropriate. Soon after learning of the August 21 incident at Ruby Ridge, the FBI officials in Washington, D.C. evaluated the information made available to them and decided to deploy its Hostage Rescue Team ("HRT") to Idaho to deal with the crisis. HRT members assumed their position around the Weaver compound late in the afternoon of August 22, 1992 but before doing so they were instructed that their conduct was to be governed by specially formulated Rules of Engagement ("Rules"). These Rules instructed the HRT snipers that before a surrender announcement was made they could and should shoot all armed adult males appearing outside the cabin. Operating under these Rules on August 22, an FBI sniper/observer fired two shots in quick succession. The first shot was at an armed adult male whom he believed was bout to fire at a HRT helicopter on an observation mission. The first shot wounded Randy Weaver while in front of a building at the Weaver compound known as the birthing shed. The second shot was fired at Harris while Harris was retreating into the Weaver cabin. The second shot seriously wounded Harris and killed Vicki Weaver who was behind the cabin door. Following this shooting incident FBI officials spent the next eight days attempting to convince Weaver and Harris to surrender to federal authorities. Finally, due largely to the efforts of nongovernmental negotiators, Harris and Weaver surrendered on August 30 and August 31 respectively. Thereafter, the FBI completed its searches of the cabin and surrounding areas. During the following month, the FBI also conducted an internal review of the shooting incident to determine if the sniper had responded appropriately. Our review found numerous problems with the conduct of the FBI at Ruby Ridge. Although we concluded that the decision to deploy the HRT to Ruby Ridge was appropriate and consistent with Department policy, we do not believe that the FBI's initial attempts at intelligence gathering at the scene were sufficiently thorough. We also found serious problems with the terms of the Rules of Engagement in force at Ruby Ridge. Certain portions of these Rules not only departed from the FBI's standard deadly force policy but also contravened the Constitution of the United States. In addition, we found these Rules to be imprecise and believe that they may have created an atmosphere that encouraged the use of deadly force thereby having the effect of contributing to an unintentional death. With regard to the two shots fired on August 22, we concluded that the first shot met the standard of "objective reasonableness" the Constitution requires for the legal use of deadly force but that the second shot did not satisfy that standard. It is our conclusion that the sniper/observer who took the second shot intended to shoot Kevin Harris but accidentally killed Vicki Weaver whom he did not see behind the curtained door. We also found the internal FBI review of the shooting incident has not been sufficiently thorough and reached incorrect conclusions about the second shot. Our examination of the command and control of the crisis by the FBI, found numerous shortcomings. These shortcomings included initial inadequacies in utilizing negotiating personnel, communicating with FBI Headquarters, documenting decisions and securing the site. During and after the crisis, the crime scenes were searched by many law enforcement officials under the direct supervision of the FBI. We found the FBI's handling of the crime scene searches to be inadequate including its failure to use basic crime scene techniques in collecting evidence. Furthermore, the general disorganization and inexperience of some of the participants coupled with inaccuracies in the searches adversely affected the prosecution and contributed to the negative impression of the government generated during the trial. We found no evidence that these deficiencies were intentional or that the FBI staged evidence for the prosecution's benefit. Shortly after their arrest, separate preliminary hearings were held for Weaver and Harris. While arguing the government's motion requesting a continuance of the Harris preliminary hearing, U.S. Attorney Ellsworth made statements indicating that the government would allow Harris to have a complete preliminary hearing in return or consenting to the continuance. Thereafter, Harris consented to the continuance with the understanding that he would have a full preliminary hearing. An indictment was returned against Harris while his preliminary hearing was in progress. We have found that the U.S. Attorney did not intentionally misrepresent the government's position but that he failed to appreciate the impact of his statements and that he neglected to pay sufficient attention to the information that the received concerning the probably length of the preliminary hearing. After the first indictments were returned against Weaver and Harris, the Assistant U.S. Attorney continued to present evidence to the grand jury which led to the return of two superseding indictments, each containing a conspiracy count. We found these conspiracy counts to be overly broad and to contain some overt acts for which there was insufficient evidence. [G.J.] Later the USAO decided to seek the death penalty against Weaver and Harris even though the applicable federal appellate court had held that the offense charged could not constitutionally support the imposition of a death sentence. We have concluded that the decision to seek the death penalty, although made in good faith, gave the appearance that the government was overreaching. From the moment that the USAO began to prepare the case for trial, it met with resistance from the FBI. This resistance took many forms, all of which served to make preparation of the case more difficult. The FBI continuously opposed actions of the prosecutors requested to prepare the case for trial, ranging from having the case agents conduct out-of state interviews to enlisting agents from other agencies to help prepare the case. The FBI, which wanted to be the only agency or, at a minimum, the lead agency on the case, resisted working as a coequal member of the prosecution team. Furthermore, when the USAO sought advice and assistance from the FBI Laboratory they met with unjustified delays and resistance that created discord within the team and disrupted trial preparation. These problems contributed to the USAO's decision to retain private forensic experts. In addition, the FBI unjustifiably delayed producing materials to the USAO that were needed for trial preparation and that were clearly discoverable under federal law and the discovery stipulation signed by the parties. This action unreasonably delayed the availability of these materials for trial preparation and for discovery. Particularly at the headquarters level, we found that the FBI's efforts to locate and produce discoverable documents to be disorganized and incomplete. The late production during trial of materials associated with the FBI Shooting Incident Report negatively affected the court's and the jury's perception of the government and the government's case. In addition, the delays in discovery caused by the disorganization of and mistakes committed by the FBI Laboratory contributed to the delay of the trial and to the perception that the government was uncooperative and not being totally forthcoming. However, the FBI was not alone in failing to make timely disclosure of critical information to the defense. The USAO was also responsible for not promptly revealing certain important information to the defense. Although in some instances we found these tardy disclosures to be unjustified or negligent, we do not believe that they were improperly motivated or taken intentionally to obstruct the Weaver trial. C. Significant Recommendations As the result of our investigation, we have made seven broad recommendations. First, we recommend that all federal law enforcement officers be governed by a standard deadly force policy and that the Department of Justice be responsible for developing such a policy. in addition to specifying clearly the circumstances in which deadly force may be used, the policy should define the occasions in which special Rules of Engagement may be implemented and the process by which such rules should be approved. Second, we recommend that a crisis response team, including specially trained crisis managers, be available to respond to crises. In addition, we endorse the proposal to include specially trained prosecutors to provide legal support to tactical teams when needed. We also propose periodic joint training exercises by the various federal and local law enforcement agencies which are responsible for responding to crisis situation. Third, we recommend that a panel comprised of representatives from federal law enforcement agencies, including an attorney form the Department of Justice, be created to examine the internal reviews that law enforcement agencies conduct after shooting incidents occur. This examination would focus on the thoroughness and prosecutive merit of the internal review. Fourth, we recommend that FBI field offices that do not have a team in place to recover evidence after major hostage/barricade crises like Ruby Ridge request the assistance of the Evidence Response Team at FBI Headquarters. We further recommend that procedures be adopted to improve the coordination between the FBI Laboratory and the federal prosecutors and that and examination be done of the FBI procedures regarding the memorializing of interviews. Sixth, we recommend that all U.S. Attorneys' Offices institute a review process for indictments, at least for significant cases. Finally, we recommend that our findings concerning the events surrounding the shooting of Vicki Weaver on August 22, 1992 be referred to the appropriate component of the Department of Justice to assess prosecutive merit. In addition, we recommend that our analysis of the conduct of Assistant U.S. Attorney Ronald Howen be referred to the Executive Office for United States Attorneys for whatever administrative action it deems appropriate. --------------------------------------------------------------------------- II. ORIGINS OF THE INVESTIGATION AND METHODOLOGY EMPLOYED In February 1993, the Criminal Division of the United States Department of Justice (the "Department") informed the Office of Professional Responsibility ("OPR") of allegations of professional misconduct and criminal wrongdoing by agents of the U.S. Marshals Service ("Marshals Service"), the Federal Bureau of Investigations ("FBI"), the United States Attorney's Office for the District of Idaho ("USAO"), and the Bureau of Alcohol, Tobacco and Firearms ("BATF"), stemming from their involvement in the investigation, apprehension, and prosecution of Randy Weaver and Kevin Harris. Because Weaver and Harris were awaiting trial, OPR in conformity with its normal policy of avoiding interfering with the criminal process, postponed its inquiry until the litigation had concluded. Following the jury verdict in July 1993, OPR began its inquiry. OPR was aware of numerous allegations of impropriety, some of which had been raised in defense pleadings and many others that arose during and immediately after trial. Allegations by various people and groups -- the media, the trial court, the United States Attorney's Office, the FBI, and U.S. Senator Larry Craig of Idaho, as well as the public -- suggested the personnel of the United States government had engaged in willful misconduct, including obstruction of justice, perjury , and other criminal and ethical violations. As a result, it became apparent that the scope of inquiry needed to be broader than merely issues that had been raised at trial by the defense. Attorney General Janet Reno announced that the inquiry would include a complete and thorough review of the Weaver case from its inception to the conclusion of the criminal trial. OPR was to conduct this inquiry with investigative support from the FBI. On July 26, 1993, Michael E. Shaheen, Jr., Counsel in the Office of Professional Responsibility detailed the role of OPR and the FBI in the inquiry in a letter to David G. Binney, Assistant Director of the FBI's Inspection Division. Concerns had been raised about the FBI's ability to be objective and to investigate alleged misconduct by its own agents. Some who had participated in the Weaver investigation and prosecution and had experienced a decided lack of harmony in their working relationship with the FBI, opposed the Bureau's involvement in the investigation. However, OPR's experience with the FBI in investigations in which the FBI was the subject -- including an investigation of its own Director -- demonstrated that the Bureau could be objective under OPR's supervision. Furthermore, the broad scope of the Weaver inquiry and the need for FBI expertise suggested that the Bureau be included in the inquiry. From the beginning of the investigation OPR attorneys established that they would control the investigation, analyze the information gathered, and make finding and recommendations. The FBI's role was limited to assisting in gathering facts and conducting interviews. The FBI was not to make findings, conclusions, or recommendations. Due to the expansive scope of the inquiry, former Deputy Attorney General Philip Heymann assigned four attorneys from the Criminal Division of the Department of Justice to assist OPR. It was decided that the review would cover: the conduct of the Marshals Service in its investigation of Randy Weaver from its inception to the conclusion of the trial; the actions of the FBI Hostage Rescue Team ("HRT") during the siege of the Weaver residence; the handling of evidence by the FBI Laboratory and its effect on the Weaver trial; and the conduct of the U.S. Attorney's Office in investigating and prosecuting the Weaver case. OPR contacted the Department of Treasury ("DOT"), which had also received complaints about BATF's conduct and agreed that its Inspector General's Office would investigate that matter. However, it was understood that OPR would address those elements of the BATF investigation that affected the Weaver case and involved Department of Justice employees. To that end, OPR invited DOT to participate in interviews relevant to its investigation and to review material -- other than grand jury testimony -- that would assist its inquiry. Although DOT is preparing a report of its investigation, this report discusses issues involving BATF that affected the Weaver matter. The FBI initially assigned 15 Inspectors and two administrative support personnel to the Ruby Ridge Inspection Team to work with the five DOJ attorneys. During the first phase of the inquiry, the team developed an investigative focus, established a management system, and attempted to identify, through research and selected interviews, the issues to be addressed. By August 1993, the team had determined the background interviews that needed to be conducted and had identified documents that needed to be reviewed, including case files and supporting materials form the Marshals Service, the USAO, and the FBI. Initially, the investigators used a research system consistent with a typical FBI investigation. However, they soon realized that a thorough review of the Weaver matter would benefit from the support of the FBI's Rapid Start team of the Information Resources Division of FBI Headquarters. Rapid Start is a mobile group of FBI employees who provide information management services to major cases. The Rapid Start team developed an automated case management system to assist the investigators in capturing, storing and retrieving information. The team also assisted the investigation in tracking leads and with document control. As Phase I of the investigation entered its final stages, it became apparent that the volume of material to be reviewed and the broad scope of the inquiry would require more personnel and time than had originally been contemplated. A decision was made to increase the size of the investigative team. Thus, when Phase II of the investigation began on September 21, 1993, the Ruby Ridge Inspection Team was doubled in size to include two full-time Inspectors, 26 Assistant Inspectors, and 10 support personnel. Phase II was the investigative phase of the project. The inspectors were divided into the four teams. The first team was responsible for issues involving BATF and the Marshals Service. The second and third teams focused on the FBI role in the case including the FBI Laboratory, the FBI's handling of the crime scene, and the actions of the FBI HRT and its Rules of Engagement. The last team examined the actions of the USAO throughout its involvement in the Weaver matter. Each team was comprised of a DOJ Attorney, an inspection team leader, and five or six inspectors. The inspectors were encouraged to coordinate their inquiry with the DOJ attorney. Many interviews involved witnesses who had knowledge of issues being investigated by more than one team. In those instances, inspectors from the other teams either attended the interview, scheduled separate interviews, or submitted preliminary questions to determine whether an additional interview was necessary. The FBI inspectors and DOJ attorneys conducted over 370 interviews of persons involved in the Ruby Ridge incident, including personnel of local, state, and federal law enforcement agencies, the USAO, the Department of Justice, as well as members of the federal judiciary and nongovernmental witnesses.[FN1] The interviews were conducted throughout the United States and, in some instances, supplemental interviews were conducted for clarification. Although the majority of the interviews were conducted by FBI inspectors, virtually all significant interviews were conducted jointly by FBI inspectors and DOJ attorneys. In addition, thousands of pages of records and files were reviewed. Before the interview process began, DOJ and FBI personnel developed a witness notification form describing the scope and purpose of the inquiry. Each witness executed this form before being interviewed. In addition, witnesses were asked to execute waiver forms before statements were taken. In some instances, interviewees were represented by counsel or declined to volunteer information, instead relying on earlier sworn testimony or statements. On November 8, 1993, then Deputy Attorney General Philip Heymann responded to renewed objections to the investigative role of the FBI in the inquiry. Heymann received the assurance of the attorneys in charge of the inquiry that they could accommodate interviewees who requested interviews outside the presence of the FBI. The attorneys assured these interviewees that the FBI was assisting them in gathering facts but that the final report and its conclusion and recommendations would originate from the DOJ attorneys. However, these interviewees were advised that a record of their interviews would be given to the FBI to assist its inquiry. In addition, we cautioned all those interviewed that the Attorney General might release a version of our final report to the public and, therefore, we could not assure their confidentiality. On January 19, 1994, the FBI investigators submitted their report of factual finding to the DOJ attorneys. Following the receipt of the FBI report, the DOJ attorneys completed their review of all pertinent materials and wrote a report analyzing the many allegations. The original team of lawyers was assisted by two attorneys from the Criminal Division who provided additional research and analysis. In addition, another OPR attorney assisted in the final stages of the preparation of this report. This report was structured to be read in its entirety or in isolated sections. The Factual Summary, Chronology, and the Identification of Participants sections are intended to provide a general overview of significant events, which will assist the reader in understanding the detailed discussions that follow. Specific topics are generally arranged in chronological order and contain detailed discussions of the relevant facts, the issues raised and the finding made. Finally, we conclude with a section which sets forth recommendations, most of which are designed to anticipate and avoid the kinds of problems subject to this inquiry. An Appendix accompanies this report, but because of the volume of source material used in this inquiry, it includes only the most significant documents. FOOTNOTES FOR SECTION II. ORIGINS OF THE INVESTIGATION AND METHODOLOGY EMPLOYED 1. The following groups of people were interviewed: 52 FBI HRT members, 60 Marshalls Service Special Operations Group personnel, 41 FBI Special Weapons and Tactics Team members, three BATF agents, eight Marshal Service management personnel, 15 Marshals Service personnel directly involved in the Ruby Ridge crisis, ten FBI Headquarters personnel, four FBI negotiators, 43 Idaho State Police members, 26 members of other agencies, 31 FBI field office personnel, 17 FBI Laboratory personnel, and 30 other persons involved with the prosecution, including personnel from the U.S. Probation Office and the U.S. Attorney's office. --------------------------------------------------------------------------- III. FACTUAL SUMMARY A. THE U.S. MARSHALS SERVICE In January 1985, the U.S. Secret Service investigated allegations that Randy Weaver had made threats against the President and other government and law enforcement officials. The Secret Service was told that Weaver was associated with the Aryan Nations, a white supremacist group, and that he had a large cache of weapons and ammunition. Weaver had spoken of the world's ending in two years "when [his] home will be under siege and assaulted." Secret Service agents interviewed Weaver, who denied the allegations. No charges were filed. In February 1985, Weaver and his wife, Vicki, filed an affidavit with the county clerk, giving "legal and official notice that [he] believe[d] [he] may have to defend [him]self and [his] family from physical attack on [his] life" by the FBI. Weaver came to the attention of the Bureau of Alcohol, Tobacco and Firearms ("BATF") in July 1986, when a BATF informant was introduced to him at a World Aryan Congress. The informant met Weaver several times over the next three years. In July 1989, Weaver invited the informant to his home to discuss forming a group to fight the "Zionist Organized Government," referring to the U.S. Government. Three months later, Weaver sold the informant two "sawed-off" shotguns. In June 1990, BATF agents approached Weaver to persuade him to become an informant. Weaver refused to become a "snitch," and he was indicted for manufacturing and possessing an unregistered firearm. A warrant was issued for his arrest. BATF concluded that it would be too dangerous for the arresting agents and the Weaver children to arrest Weaver at his mountaintop residence. Instead, in January 1991, BATF agents, posing as stranded motorists, surprised Weaver and his wife when they stopped to offer assistance. Weaver told the arresting agents "nice trick; you'll never do that again." Weaver was arraigned and was released on a personal recognizance bond. A trial date was set for February 19, 1991.Shortly thereafter, Weaver's wife, Vicki, sent the U.S. Attorney's Office two letters addressed to the servants of the Queen of Babylon, which asserted that "[t]he tyrants blood will flow" and "[w]hether we live or whether we die, we will not bow to your evil commandments." A U.S. Probation Officer sent Weaver a letter incorrectly referring to a March 20 trial date. Weaver did not appear for the February trial, and a bench warrant was issued for his arrest. On March 14, 1991, Weaver was indicted for failure to appear for trial. The matter was referred to the U.S. Marshals Service, which learned that Weaver had attended Aryan World Congresses and that he and his family were constantly armed. Weaver sent a letter to the local sheriff, stating the he would not leave his cabin and that law enforcement officers would have to take him out. The Weavers "felt as though the end [was] near." Weaver was quoted as threatening to shoot law enforcement officers, who came to arrest him. Weaver and his family remained in a cabin, atop an isolated mountain. Between March 1991 and August 1992, the marshals undertook a series of efforts to convince Weaver to surrender. They also made plans to arrest Weaver without harm to law enforcement officers or the Weaver family, particularly the children. The marshals exchanged messages with Weaver through intermediaries, until the U.S. Attorney directed that all communications go through Weaver's appointed counsel (with whom Weaver would not speak). Teams from the Marshals Service Special Operations Group ("SOG") conducted surveillance of the Weavers' mountaintop property to devise methods to take Weaver into custody safely. Surveillance cameras were installed and aerial photographs were taken of the property. The marshals observed that Weaver and his children responded to approaching persons and vehicles by taking armed positions over the driveway leading to the Weaver cabin. During this period, Weaver continued to make statements that he would not surrender peacefully and that his family was prepared to defend him. The Director of the Marshals Service ordered that no action be taken that could endanger the Weaver children. In the Spring of 1992, the marshals developed an undercover plan to arrest Weaver away from his cabin and family. A surveillance team of six marshals went to the mountains on August 21, 1992 to look for places to station cover teams for the operation. Toward the end of the surveillance mission, one of the Weaver's dogs began to chase three of the marshals. Marshals stationed at an observation post saw Kevin Harris, an associate of Randy Weaver, Weaver, his thirteen year old son Sammy, and Weaver's daughters, follow the dog. All were carrying firearms. The marshals retreated. As they approached an intersection of trails known as the "Y," they saw Randy Weaver coming down the trail. They identified themselves and told him to halt, but he turned and ran back up the trail. The dog caught up with Deputy Marshal Cooper. He held the dog at bay with his firearm, but did not shoot for fear of provoking the Weavers. An exchange of gunfire occurred moments later, resulting in the death of Deputy Marshal William Degan, Sammy Weaver, and the dog. According to the marshals, the fire fight began when Degan and Deputy Marshal Cooper rose to identify themselves. Kevin Harris wheeled and fired at Degan with a 30.06 rifle. Cooper returned fire and thought he hit Harris, though he had not. Cooper turned his weapon toward Sammy Weaver, but did not fire. Deputy Marshal Roderick, who was further down the path, heard a shot from his left. Roderick could not see anyone other than Weaver's dog, which was heading in the direction Randy Weaver had gone. When the first shot was fired, the dog turned its head toward the marshals. Roderick feared that the dog would turn and attack him or lead Weaver, Harris, and the others to the marshals. Roderick fired at the dog, killing him. Sammy Weaver then shot at Roderick, and Roderick dove into the woods. Roderick later found a bullet hole through his shirt, though he was not wounded. Cooper heard the shots to his right. He rose and fired a three-round burst to provide cover fire for himself so that he could get to Degan, who called for help. Following the last shots, Cooper saw Sammy Weaver run out of view up the trail to the Weaver cabin. He did not think that he had hit the boy. Randy Weaver and Kevin Harris claimed that they did not know what the dog was chasing, though there is evidence to the contrary. They said that they thought they were pursuing a large animal. They asserted that the first shot fired at the Y was Roderick's attack on the dog, that Sammy fired at Roderick in retaliation, and that Degan and Cooper then shot at Sammy. Harris maintained that the marshals did not identify themselves until the shooting had ended and that he shot Degan to defend Sammy. Soon after the shooting, the three marshals, who had been at the observation post, ran to the Y. They came under fire along the way. One marshal, a medic, treated Degan, without success. Shortly thereafter, the marshals heard a barrage of gunfire, followed by screaming and crying. After a brief time, two marshals left the hill to seek help. The three surviving marshals maintained their positions out of fear that, if they moved, they would be shot at. They also refused to leave without the body of the slain marshal. They did not receive additional fire, though in the hours that followed they heard shots when an airplane flew overhead. B. Federal Bureau of Investigation - Deployment of Hostage Rescue Team As soon as the U.S. Marshals Service received word of Marshal Degan's death and the ongoing situation at Ruby Ridge, they sought and received FBI assistance. The FBI had primary jurisdiction for assaults on federal officers, and its Hostage Rescue Team ("HRT") is seen as uniquely skilled for crises. FBI and Marshals Service Headquarters immediately activated command centers to coordinate communications. Special Agent Eugene Glenn was assigned the command and began to arrange for the personnel and equipment required for the crisis. Concurrently, state and local law enforcement and a few FBI agents who were in the immediate area came to the scene and began securing the area. The rescue of the marshals was delayed until after dark. A team led by the Idaho State Police reached the marshals at approximately 11:30 p.m., more than twelve hours after the shooting. The rescue effort was ongoing when Glenn arrived and deployed FBI SWAT teams to secure the command post's perimeter. He planned to maintain the status quo until the HRT had arrived. Local law enforcement continued to guard the access road as a crowd of sympathizers and onlookers gathered. The marshals were successfully removed from the mountain without additional gun fire. Once rescued, they were examined at a hospital and transported to a command post where they were given food and allowed to rest. FBI agents interviewed the marshals, starting the following afternoon. C. Rules of Engagement and the Death of Vicki Weaver on August 22 While the rescue of the marshals was underway, the HRT advance team was en route to Idaho with the Associate Director of the Marshals Service, who briefed then about Weaver's background, his failure to appear for trial, the underlying weapons charge, and his professed desire to confront the federal government. During the flight, HRT Commander Rogers and FBI Associate Director Potts drafted special Rules of Engagement to address the danger they perceived. When the HRT arrived in Idaho, Rogers briefed them on the situation and the proposed Rules of Engagement. They established a command site, flew reconnaissance missions, and began to make plans to address the crisis. On the afternoon of the shooting, the U.S. Attorney's Office obtained a search warrant and complaints for Randy Weaver and Kevin Harris's arrest on charges relating the the death of Marshal Degan. Assistant U.S. Attorney Ronald Howen, who was assigned to the case, went to the site. Howen remained until Weaver and Harris surrendered a week later. Howen took no role in developing the Rules of Engagement or drafting operations plans, but he did participate in crime scene searches, interviews, and negotiations. The Boundary County prosecutor was also present during most of the crisis but was not involved in the operations planning. According to the HRT plan, communication with the occupants of the Weaver cabin, including a surrender demand, was to take place using armored personnel carriers, which would deliver a telephone to the cabin site. The HRT was concerned that the Weavers or sympathizers might be hiding in the woods and planning an ambush. Therefore, teams of HRT sniper/observers were stationed overlooking the cabin before the carrier drove up the hill. Although FBI headquarters had not approved a tactical operations plan, permission was granted to begin negotiations with the Weavers when HRT agents arrived at their positions. At 3:30 p.m. on August 22, HRT sniper/observers, along with members of the Marshals Service SOG, began their ascent to the cabin. Before their departure, they were briefed on the Rules of Engagement, which provided that: 1. If any adult male is observed with a weapon prior to the announcement, deadly force can and should be employed, if the shot can be taken without endangering any children. 2. If any adult in the compound is observed with a weapon after the surrender announcement is made, and is not attempting to surrender, deadly force can and should be employed to neutralize the individual. 3. If compromised by any animal, particularly the dogs, that animal should be eliminated. 4. Any subjects other than Randall Weaver, Vicki Weaver, Kevin Harris, presenting threats of death or grievous bodily harm, the FBI rules of deadly force are in effect. Deadly force can be utilized to prevent the death or grievous bodily injury to oneself or that of another. No shots had been fired since the previous day, but, while the HRT members were moving to positions overlooking the cabin, other observers reported to FBI headquarters that the subjects were outside the cabin. FBI Headquarters reminded the field commander that the Rules of Engagement would apply. By 5:45 p.m., the sniper/observers reached their positions. The engines of the personnel carriers at the command post below were audible. An unarmed, young female ran from the cabin to a rocky outcropping and returned to the cabin. Within a minute, an unarmed male was seen on the cabin's back deck. About ten minutes later, a helicopter carrying HRT personnel began an observation mission. When the helicopter's engine was started, the female seen earlier and two males ran from the cabin to the outcropping. The last person to emerge was carrying a rifle. Sniper/observer Horiuchi identified him as Kevin Harris. A few seconds later Horiuchi saw a person he believed to be Harris near an outbuilding known as the "birthing shed." The man appeared to be scanning above and behind the snipers for the helicopter. Horiuchi believed that he was trying to position himself to shoot at the helicopter from the more protected side of the shed. Horiuchi fired one shot as the man suddenly moved along the side of the shed out of sight. When Horiuchi fired, the man's back was toward Horiuchi and the helicopter. Because the man moved unexpectedly, Horiuchi assumed he missed. The man he aimed at was not Harris, but Weaver, who was slightly wounded. Harris and Weaver have maintained that they had no aggressive purpose in leaving the cabin and that Weaver was opening the door to the shed to look at the body of his son. After ten or twenty seconds Horiuchi saw the target of his first shot following the other two people as they ran to the cabin. The first two entered the cabin through an open door. Horiuchi fired, aiming slightly in front of the last running man. The bullet went through the curtained window of the open door, fatally wounding Vicki Weaver and seriously injuring Kevin Harris. The sniper testified that he did not know that Vicki Weaver was standing behind the door. When Commander Rogers, who had been aboard the HRT helicopter, learned of the shootings, he and an FBI negotiator went in a personnel carrier to the cabin to make a surrenderannouncement and to begin negotiations by leaving a telephone. There was no response. A few hours later, due to deterioratingweather conditions, the snipers left their positions and returned to the command post where Rogers debriefed them. The next morning the snipers returned to their positions. Rogers once again went to the cabin area and issued repeated surrender announcements, which included warnings that the outbuildings would be removed if Weaver failed to comply. By Sunday evening, there was still no response or indication that the Weavers were going to surrender or negotiate, so the first outbuilding, the birthing shed, was moved. Sammy Weaver's body was discovered in the birthing shed. Negotiation efforts continued for days, but were unsuccessful. No one from the cabin picked up the telephone, which was on an armed robot outside the cabin. Although the weapon on the robot was not loaded, Weaver reported that he was afraid that anyone who went outside would be shot. Attempts to intercept conversations inside the cabin were not successful. By Wednesday, no aggressive action had occurred for days, and the events which had preceded the confrontation began to seemless clear. The FBI command received evidence in apparent conflict with the initial impressions about Weaver's background and the circumstances surrounding the shootout. As a result, the FBI command decided to withdraw the special Rules of Engagement and to instate the FBI's standard Deadly Force Policy. On Wednesday, August 26, Weaver told a negotiator that he wanted to talk with his sister. When she arrived, attempts to communicate with Weaver were frustrated by her inability to hear Weaver. On Friday evening, August 28, Weaver agreed to speak with Bo Gritz, whom Weaver told that the sniper had killed his wife and injured Harris and himself. Two other private citizens assisted Gritz in resolving the standoff. Gritz and a Weaver family friend carried Vicki Weaver's body out of the cabin. On Sunday, August 30, Kevin Harris surrendered. The Weavers surrendered the following day. Searches of the Y were ongoing during the crisis. After the surrender, the cabin and surrounding area were searched. The FBI also sent a team of inspectors to begin an internal inquiry into the sniper shootings. D. The Prosecution After their surrender, Harris and Weaver were placed under arrest and charged with the murder of Deputy Marshal Deagan. Separate preliminary hearings to determine probable cause for these charges were begun. Before their preliminary hearings concluded, a grand jury indicted Harris for assaulting and murdering Degan and indicted Weaver for aiding and abetting in Degan's death. Thereafter, the magistrate judges terminated the preliminary hearings of Weaver and Harris. Both defendants pleaded not guilty to all charges. On October 1, 1992, a grand jury returned a superseding indictment charging Weaver and Harris with numerous offenses including conspiracy.[FN2] On November 19, 1992 a Second Superseding Indictment was returned charging Weaver and Harris with the same offenses as the previous indictment and alleging additional overt acts. In October 1992 the Marshals Service and BATF provided four agents to assist the U.S. Attorney's Office in preparing the case for trial. During the case preparation process continuous issues arose regarding the cooperation of the FBI in preparing the case for trial. Included among these problem areas was the lack of cooperation by the FBI in providing discovery materials to the prosecution and the defense. On January 8, 1993, on motion by the defense, the February 2 trial date was extended to allow time for the defense to review evidence and the results of FBI Laboratory tests. The defense complained about the government's failure to provide timely access to evidence and documents, and the trial judge admonished the prosecutors to have the laboratory examination completed quickly. The 42 day jury trial began on April 13, 1993. During the trial, the defendants brought to the court's attention problems they had in obtaining documents and information to which they believed they were entitled under either federal law or a discovery stipulation with the government. The most extreme breach of the stipulation involved the late production of the underlying materials and notes related to the FBI Shooting Incident Report which had been produced as the result of an internal inquiry into the sniper shootings. Although the defendants had received the final Shooting Incident Report before trial, during trial the FBI, in response to a defense subpoena, sent by fourth class mail materials that were not part of the documents that the FBI had produced earlier in discovery. These materials included a drawing Horiuchi made days after the shooting. The drawing arrived in Idaho after Horiuchi had completed his testimony, thus requiring his return for additional testimony. The court fined the government for the attorneys fees incurred by the defendants for the lost trial day. One of the two prosecutors became ill and did not participate in the final arguments. After deliberation for 20 days, on July 8, 1993, the jury acquitted Weaver and Harris of the murder of Deputy Marshal Degan, the conspiracy charge, and the significant remaining charges. Weaver was convicted on charges of failure to appear for trial and committing an offense while on release. On October 26, 1993, Weaver was sentenced to 18 months incarceration, three years probation and a $10,000 fine. The court issued an Order fining the FBI and criticizing it for its failure to produce discovery materials, its failure to obey orders and admonitions of the court, and its indifference to the rights of the defendant and to the administration of justice. On December 18, 1993, Randy Weaver was released from incarceration. FOOTNOTE FOR SECTION 3. FACTUAL SUMMARY 2. The indictment charged violations in 18 U.S.C. 2, 3, 111, 115, 371, 933 (g) (2), 924 (c) (1), 1071, 1111, 1114, 3146 (a) (1), 3147, 26 USC 5861 (d), and (f) --------------------------------------------------------------------------- IV. SPECIFIC ISSUES INVESTIGATED A. Investigation of Weaver by Bureau of Alcohol, Tobacco and Firearms 1. Introduction The events that led to the death of three persons at Ruby Ridge, Idaho in August 1992 and to the subsequent prosecution of Randall ("Randy") Weaver and Kevin Harris had their origin with an investigation by the Bureau of Alcohol, Tobacco and Firearms ("BATF"). Serious allegations have been made about the role of BATF in the Weaver matter. Included among these allegations are that a BATF informant entrapped Weaver into selling illegal weapons; that a BATF reward system created the incentive for the informant to entrap Weaver; and that BATF and the informant tired to conceal this future compensation arrangement from the defense, the court and the U.S. Attorney's Office.[FN3] It has also been alleged that BATF exaggerated to the U.S. Marshals Service, the U.S. Attorney 's Office, and the court the extent of Weaver's involvement with the Aryan Nations and the Order and that federal law enforcement unconstitutionally targeted Randy Weaver for prosecution because of his religious views.[FN4] 2. Statement of Facts a. Early Law Enforcement Contacts with Randy Weaver Randy Weaver first came to the attention of federal law enforcement personnel in 1985 as a result of alleged threats he made against President Reagan, Idaho Governor John Evans, and certain law enforcement officials.[FN5] The U.S. Secret Service investigated the allegations and interviewed Weaver. During this investigation, it was learned that Weaver was frequently visited by Frank Kumnick, who was associated with members of the Aryan Nations, a white-supremacist group.[FN6] Kumnick was described as the "mentor" for Weaver's "far right wing" beliefs. [FN7] Weaver and Kumnick had allegedly spoken of burning churches and had made threats against Catholics and Jews.[FN8] In addition, Weaver had been seen with Richard Butler, leader of a local Aryan Nations Church.[FN9] The Secret Service was also told that Weaver had a cache of weapons, including a number of semi and fully automatic handguns and rifles,[FN10] and that he had access to explosives and to "an unlimited amount of ammunition."[FN11] Weaver had been described as a person with a "paranoid defensive attitude,"[FN12] who had chosen his mountaintop residence "for survivalist purposes."[FN13] One Bonners Ferry resident reported that Weaver had "rigged his driveway with bombs."[FN14] Another person interviewed by the Secret Service stated that Weaver had spoken of the world ending in two years "when my home will be under siege and assaulted."[FN15] Secret Service agents interviewed Weaver on February 12, 1985. At that time, he denied threatening the President, the Governor, or churches. He also denied having any affiliation with the Aryan Nations or its members.[FN16] Weaver said that he had "no time for Aryan Nation's preachers" and that his religious beliefs were "strictly by the bible." He acknowledged knowing Frank Kumnick, but said that Kumnick was associated with the Covenant, Sword and Arm of the Lord. Weaver informed the agents that he had served for three years as an Army Special Forces Green Beret and that he had been an Army engineer.[FN17] He stated that the Bible gave him the right to kill, if necessary, to defend his family,[FN18] but added the federal authorities were welcome on his property "in spite of stories that had circulated about him and his family."[FN19] On February 28, 1985, Randy and Vicki Weaver filed a handwritten affidavit with the Boundary County Clerk claiming that persons around Deep Creek, Idaho were conspiring to endanger the Weaver family and to precipitate an attack on Randy Weaver's life. The affidavit alleged that Weaver's "accusers" had made false statements about his connections with the Aryan Nations and his ownership of illegal weapons and that they had wrongfully alleged that he had threatened the President and the Pope. The Weavers also stated that these falsehoods were designed to provoke the FBI into storming their home. Weaver expressed fear that he would be killed or arrested for assault of a federal officer, if he tried to defend himself, and he gave "legal and official notice that [he] believe[d] [he] may have to defend [him]self and [his] family from physical attack on [his] life."[FN20] In May 1985, Weaver sent a letter to President Reagan claiming that his neighbors had sent the President a threatening letter under Weaver's name. Weaver apologized for their "evil" in involving the President in their efforts to harass Weaver. On the same date, Vicki Weaver sent a letter to the Spokane Field Office of the U.S. Secret Service demanding a written apology from the Secret Service.[FN21] The federal government never filed any charges against Weaver for the alleged threats made against the President, the Governor, or others.[FN22] b. BATF Contact with Weaver Weaver first came to the attention of the BATF in July 1986 during its investigation of a series of bombings in Coer d'Alene, Idaho in which the Aryan Nations was believed to be involved. BATF asked Kenneth Fadeley, a confidential informant, to assist its investigation by obtaining information about people attending an upcoming World Aryan Congress who might be engaged in illegal activities.[FN23] Thereafter, Fadeley portrayed himself as a weapons dealer who catered to motorcycle gangs and, in this role, managed to be introduced to high level members of the Aryan Nations in Northern Idaho.[FN24] In July, 1986, Fadeley attended the World Aryan Congress at Hayden Lake, Idaho. During this assembly, Fadeley was introduced to Weaver, who was at that time of no particular investigative significance to BATF.[FN25] Six months later, in January 1987, Fadeley met with Frank Kumnick, who was suspected of significant firearms trafficking. Fadeley wore a hidden taper recorder to this meeting. Randy Weaver accompanied Kumnick. Fadeley had met with Kumnick more than a dozen times before, and although Weaver's name had been mentioned numerous times, Fadeley had not expected Weaver at this meeting.[FN26] In Weaver's presence, Kumnick, after suggesting that Fadeley was a government informant, held a gun to Fadeley's head and ran an electronic stud finder over Fadeley's body to search for a hidden microphone or recorder. Kumnick did not find the recorder.[FN27] At this meeting, Weaver gave Fadeley no indication that he was predisposed to selling illegal weapons. [FN28] [G.J.] [FN29][G.J.] At the World Aryan Congress in July 1987, Fadeley again met Weaver, who was accompanied by his wife and children. Weaver mentioned to Fadeley that it was a "struggle" to provide for his family. Weaver also declared that he did not trust the leaders of the Aryan Nations and that he did not agree with the actions of Richard Butler, leader of the Aryan Nations.[FN30] After this contact, Fadeley continued to view Weaver simply as one of the many attendees at the World Aryan Congress. c. Sale of Weapons by Weaver to BATF Informant Fadeley and Weaver met again at the July 1989 World Aryan Congress, where Weaver was one of the speakers.[FN31] Fadeley told Weaver that his gun "business [was] busy." In response, Weaver did not offer to sell Fadeley firearms, but he did invite Fadeley to a house he was renting to discuss forming a group to fight the "Zionist Organized Government" a term used by Aryan nations members to refer to the U.S. Government.[FN32] According to Weaver, the proposed group was to include Kumnick and Chuck Holwrth. Holwrth, who had been convicted of an explosives violation an had formed an Aryan Nations splinter group in Montana,[FN33] was of "continuing investigative interest" to the BATF. After learning of Weaver's plan to include Holworth in this group, the BATF began to view Weaver as a possible point of introduction to Holworth.[FN34] On September 8, 1989, at BATF's request, Fadeley telephoned Weaver and arranged to meet him on October 11.[FN35] Fadeley did not record his conversations with Weaver during the October 11 meeting. At the meeting, Weaver asked Fadeley how his business was going. Fadeley replied that he was "extremely busy" and that he had sold all his "product." Weaver explained that he would like to assist Fadeley and that "he was ready to go to work for [him]."[FN36] Fadeley then told Weaver he had a source to whom he dealt guns. Weaver then asked what the most popular items were, and Fadeley described the "street" weapons he thought he could sell, including shotguns. In response, Weaver said that he could supply four or five shotguns per week. Fadeley recalled Weaver representing that he could get any size shotguns that Fadeley wanted. According to Fadeley, Weaver said "just tell me what you want and what size and I'll supply what you want." Weaver added that there would be "no paper," that is, the weapons would not have registration documents.[FN37] As the two men left the meeting, Fadeley walked to Weaver's truck where Weaver showed Fadeley a shotgun and indicated a spot on the barrel where he thought it could be cut. Fadeley pointed to the weapon and said "about here"[FN38] to which Weaver asserted that he could supply weapons like that "all day long."[FN39] Following the meeting, Special Agent Herbert Byerly, Fadeley's BATF contact agent, conducted various records checks on Weaver.[FN40] On October 13, 1989, Fadeley telephoned Weaver from a BATF office and recorded the conversation to confirm his report of the October 11 meeting. During this discussion, Fadeley and Weaver used agreed upon code words and referred to weapons as "chain saws."[FN41] On October 24, 1989, Weaver met with Fadeley, who was wearing a miniature tape recorder and an electronic transmitter. At that time, Weaver gave Fadeley two shotguns, one with a 13 inch barrel, the other with a 12-3/4 inch barrel. Weaver told Fadeley that he had cut the shotgun barrels himself, "[s]itting under a shade tree with a vise and a hacksaw," and added that, "when I get my workshop set up I can do a better job."[FN42] Fadeley paid Weaver $300.00 for the weapons. When Weaver requested an additional $150.00 for the weapons, Fadeley told him that he would give him the additional money at the next purchase.[FN43] Fadeley then proceeded to tell Weaver that "[t]here is money to be had, and it looks like [you] did a real nice job". He then asked Weaver, "You figured four or five a week?" to which Weaver replied, "yeah, or more." Weaver repeated that there would be no paper trail on the weapons.[FN44] Fadeley met Weaver again on November 30, 1989 with the intent of arranging a trip to Montana to meet Holworth. At this time, Weaver announced that he had five additional sawed-off shotguns available for purchase. When Fadeley told him that he had not brought enough money to pay for them, Weaver responded, "just figure on more cash next time." Thereafter, Weaver asked Fadeley if he had "a cover, legit business." In addition, Weaver told Fadeley that he was not able to go to Montana that day, but said that "the next time that I tell you I'll go with ya . . . I'll make sure I'll go with you." Fadeley paid Weaver $100 toward the balance of the previous purchase of two sawed-off shotguns.[FN45] Following this meeting, Byerly instructed Fadeley to have no additional contact with Weaver.[FN46] d. Delay in Obtaining Indictment and BATF Efforts to Enlist Weaver as an Informant On November 24, 1989, Byerly discussed the Weaver gun sale with Assistant U.S. Attorney Tony Hall from the U.S. Attorney's Office in Boise ("USAO"). Hall requested Byerly to submit a criminal violation report to the USAO.[FN47] Five months later, on May 21, 1990, Byerly submitted a case report to the USAO recommending that Weaver be prosecuted for the sale of the sawed-off shotguns.[FN48] One month later, in June 1990, BATF Agents Byerly and Gunderson drove to the Weaver property to speak with Weaver to determine if he might be willing to cooperate in their investigation of Aryan Nations members. They were met by Weaver's daughter, Sara, who had a semi-automatic pistol strapped to her hip, and by his son, Sammy, who carried a large hunting knife. Byerly and Gunderson did not identify themselves and left when they determined that Randy Weaver was not there.[FN49] After leaving the mountain, Byerly and Gunderson noticed Randy Weaver's truck outside a motel in Sandpoint, Idaho and stopped to talk with him. Thereafter, they approached Weaver, identified themselves, showed Weaver a photograph of the sawed-off shotguns he had sold to Fadeley and told him that they had a tape recording of the transaction. Weaver declined their invitation to listen to the tape. Byerly explained to Weaver that the USAO knew of the illegal weapons sale and that Weaver could help himself by providing information to BATF about the illegal activities of Aryan Nations members. He told Weaver that his assistance would be brought to the U.S. Attorney's attention.[FN50] At the end of the conversation, Byerly gave Weaver his telephone number and told him that they would wait for Weaver to come to the BATF office to discuss cooperating with them. Weaver responded that he would not become a "snitch."[FN51] Soon after this contact with Weaver, Assistant U.S. Attorney Howen told Byerly that he planned to present an indictment to the grand jury charging Weaver with firearms violations but that the timing of the indictment would have to be coordinated with the other matters he was handling.[FN52] On December 13, 1990, seven months after BATF referred the case to the USAO, a federal grand jury in the District of Idaho indicted Weaver for manufacturing and possessing an unregistered firearm. e. Arrest and Arraignment of Weaver on Weapons Charges After the issuance of the arrest warrant, BATF conducted an evaluation of Weaver and concluded that it would be too dangerous to the arresting agents and to the Weaver children for BATF to arrest Weaver at his residence.[FN53] Therefore, BATF agents decided to carry out a ruse to arrest Weaver by surprise away from his home. On January 17, 1991, two agents, posing as stranded motorists, stopped a pickup camper on a bridge near the Weaver's residence, raised the hood, and pretended to examine the engine. Byerly, other BATF Agents, and Boundary County Sheriff Whittaker hid in the back of the camper. Shortly thereafter, Randy and Vicki Weaver stopped their truck and approached the camper. The BATF agents then surprised Weaver and placed him under arrest. In the process, Weaver attempted to grab one of the agent's sidearms. Later, Weaver told the arresting agents "nice trick; you'll never do that again."[FN54] After making the arrest, the arresting agents discovered that Weaver had a pistol in his front pants pocket and Vicki Weaver had a revolver in her purse, which she had left in their pickup truck.[FN55] 3. Discussion It has been alleged that BATF singled out Randy Weaver because he shared many of the political and religious beliefs associated with the Aryan Nations, and that BATF entrapped Weaver in order to coerce him to become an informant.[FN56] We found insufficient evidence to support these claims. a. The Decision of BATF to Target Weaver This investigation found no evidence that BATF improperly targeted Weaver because of his religious or political beliefs. Instead, the evidence indicates that BATF became interested in Weaver not because of his personal views but rather because he was acquainted with members of the Aryan Nations, who were suspected of being involved in bombings that had occurred in Northern Idaho. Indeed, BATF, which knew of Weaver's beliefs for more than three years before the sale of the shotguns in October 1989, had taken no action to target Weaver for investigative focus during that period. Byerly told this inquiry that the original purpose in pursuing the transaction with Weaver was not to recruit Weaver as an informant, but rather to determine the degree of his involvement in illicit weapons trafficking by the Aryan Nations.[FN57] We find nothing improper in the BATF plan. We also examined why the government prosecuted Weaver for the alleged gun sale while deciding not to prosecute Frank Kumnick, who had also sold a "short-barrel" shotgun to Fadeley. Byerly told this inquiry that he recommended to the USAO that Kumnick not be charged because an indictment would ruin Fadeley's cover, thus ending his usefulness as an informant.[FN58] Although this may explain why Kumnick was not initially prosecuted it fails to explain why he was not prosecuted after Fadeley's cover was "blown" in March 1990. Notwithstanding the failure to explain why Kumnick was not prosecuted after March 1990, we found no evidence that this difference in treatment was improperly motivated. Byerly told this inquiry that he decided to solicit Weaver's cooperation, rather than Kumnick's, because he believed that Weaver had, or was in a better position to develop, contacts with BATF targets, such as Chuck Holworth and Richard Butler, leader of the Aryan Nation's Church in Northern Idaho. In addition, Byerly came to view Kumnick as a "boastful showoff" who was not involved in "significant firearms trafficking."[FN59] We accept Byerly's reasons for seeking Weaver's cooperation and find nothing improper about his decision to approach Weaver as a possible source of information about illegal acts committed by members of the Aryan Nations. b. Possible Entrapment by the BATF Informant Defense counsel have charged that Weaver "was induced by federal authorities" into selling illegal weapons, that is, the government entrapped Weaver into unlawful conduct.[FN60] To establish the defense of entrapment, it must be shown that the defendant was not predisposed to commit the criminal act.[FN61] A principal factor in determining whether a defendant was entrapped is whether the defendant evidenced reluctant to commit the offense but was overcome by repeated government persuasion.[FN62] The only accounts of Weaver's weapons sales that we have are the recorded conversations between Weaver and informant Fadeley and the statements of Byerly and Fadeley made at trial and to this investigation. We did not have the benefit of any statements from Randy Weaver, who did not testify at trial and who declined our invitation for an interview. Based on the information available to us, there is no evidence that Weaver proposed or was interested in selling weapons before the October 1989 meeting with Fadeley. Although Fadeley had seen Weaver on a number of occasions with a variety of weapons, Weaver apparently had never said that he wanted to sell guns. Nor is there any indication that Fadeley repeatedly proposed that Weaver sell weapons to him and that Weaver had refused. Weaver claimed in a recorded conversation that Fadeley "approached [him] and offered [him] a deal."[FN63] Fadeley later replied that the person who had told Weaver that Fadeley was a federal agent was a "scumbag."[FN64] Fadeley told the Department of Treasury investigators that Weaver's statement was a complete fabrication . . . . I had never approached him or offered him any deal. He made all the overtures. I did not confront him on this [during the meeting]. I felt that if I did, he may take that as a signal that I was an informant or police and I would be in danger.[FN65] However, Fadeley admitted that he had shown Weaver where to cut the shotgun in response to Weaver's saying, "Just tell me what . . . size [shotgun] and I'll supply what you want."[FN66] Unfortunately, this meeting was not tape recorded, nor did Fadeley report to Byerly, his BATF supervisor, that he had given Weaver this guidance.[FN67] We are troubled by the lack of first-hand information about the events immediately before the first weapons sale. Furthermore, the crucial meeting, at which Weaver allegedly raised the idea of selling weapons to Fadeley, was not recorded. The only account of the meeting comes from Fadeley. Although in the recorded November 30 conversation, Weaver expressed additional interest in providing weapons to Fadeley,[FN68] we cannot conclude, on the evidence before us, that Weaver was coerced or unduly enticed into selling weapons to Fadeley. c. Delay in Obtaining Indictment It has been alleged that Weaver's indictment on weapons charges was delayed so as to give BATF an opportunity to "turn" Weaver, that is, to make him a BATF informant. Although BATF was interested in securing Weaver's cooperation, we have found no evidence that the indictment was delayed to help this effort. Byerly apparently waited to press the weapons charge after the October 1989 sale because BATF did not want to expose Fadeley as an informant.[FN69] However, in March 1990, members of the Aryan Nations accused Fadeley of being an informant, effectively ending the covert operation. In early May 1990, Byerly submitted a case report to the U.S. Attorney's Office recommending that Weaver be prosecuted for the sale of the sawed-off shotguns. Byerly approached Weaver to seek his cooperation in June 1990. Assistant U.S. Attorney Howen told Byerly that the weapons charge against Weaver would be presented to a grand jury, but that the case would be handled in line with his other priorities.[FN70] Seven months later, the matter was presented to a grand jury and an indictment was returned in December 1990. This investigation has uncovered nothing that suggests misconduct in the span between the weapons sale in 1989 and the indictment in December 1990. Weaver's indictment was evidently not a high priority of either BATF or the USAO, and there is no evidence that the charge was treated as anything but a routine matter. 4. Conclusion It is our conclusion that the investigation which led to Weaver's indictment for the unlawful sale of two sawed-off shotguns, and the decision to indict were proper. We found no evidence that Weaver was unfairly targeted by BATF at the outset or that the delay in indicting him was improper. Although we are troubled by the sequence of events which immediately preceded the sale of the shotguns to the confidential informant, we cannot conclude, based on the evidence before us, that Weaver was coerced or unduly enticed into selling the sawed-off shotguns. FOOTNOTES (SECTION IV, PART A) 3. The controversy that erupted at trial concerning the compensation arrangement between BATF and the informant is discussed in Section IV (O) of this report. 4. See memo by AIIP Daniel J. Wehr to Insps. Roger A. Nisley and Paul E. Mallett, August 24, 1993 (interview with Gerry Spence), at 2-3; Letter from Senator Larry E. Craig to Lloyd Bentsen, Secretary of the Treasury, July 22, 1993; Letter from Senator Larry E. Craig to Janet Reno, Attorney General, July 23, 1993. The Weavers raised a similar issue during the standoff with the FBI in August 1992. Sara Weaver wrote in a statement dated August 30, 1992 that, "Our situation is not over a shotgun but rather our racial and political beliefs." 5. FD-302 Interview of Terry Kinnison, January 21 & 31, 1985. 6. Kinnison FD-302, January 21, 1985. 7. FD-302 Interview of Sam Strongblood Woholi, January 31, 1985. 8. Kinnison FD-302, January 28, 1985; [G.J.] Boundary County Sheriff Bruce Whattaker has been quoted as saying that Weaver told him that "the real Jews of the Bible are we white Christians and ... the false Jews... should be eliminated." "Standoff with Police Enters Second Year," San Francisco Examiner, March 27, 1992. 9. Report of Investigation by Terry R. Driskill, March 1, 1985; [G.J.] 10. Woholi described Randy Weaver's wife Vicki, as a "crack shot who always has a weapon available." Woholi added that Weaver's son, Sammy, handled a weapon well and normally carried a .22 rifle. Anyone approaching the Weaver residence would thus "have three weapons brought to bear on them, Weaver's, his wife's, and his sons's." Woholi FD-302, February 5, 1985. 11. Terry Kinnison provided the FBI with a list of weapons he had observed while visiting the Weaver home: two .22 caliber revolvers; three .22 rifles; a semi-automatic .45 caliber handgun; a .357 handgun; one or two .30-06 rifles; a Riger Mini-14; a .223 caliber rifle; a pump-action shotgun with a factory shortened barrel; and a Heckler Koch .223 caliber semi-automatic with a tripod and adapter for full automatic functioning. Kinnison reported that Weaver had thousands of rounds of ammunition. Kinnison FD-302, January 21, 1985. 12. Kinnison FD-302, February 5, 1985. See Transcript of conversation of Randy Weaver, Kenneth Fadeley and Frank Kummick January 20, 1987, at 36 ("You know the Bible says don't trust no man.") 13. FD-302 Interview with John Fritz, January 18, 1985. Fritz had heard that Weaver had automatic weapons and a night scope and that he "likes the high ground." 14. FD-302 Interview of Kermit Black, January 18, 1985. 15. Wolholi FD-302, February 5, 1985. In a 1983 newspaper interview, Weaver discussed his plan to move to Northern Idaho to live in an isolated hideaway "and survive the coming 'Great Tribulation,'" Waterloo Courier, January 9, 1983, B-1. 16. This claim would later be contradicted. See Report of Investigation by W. Warren Mays (interview of Chris Colgrave), March 5, 1991, at 1 ("Colgrave stated that Weaver claimed membership in the Aryan Nation"); Report of Investigation by W. Warren Mays (interview with Susan Thompson), March 5, 1991 at 1. In 1990, Weaver gave Boundary County Sheriff Bruce Whittaker literature supporting the Aryan Nation's views. Report of Investigation by David Hunt and W. Warren Mays, March 7, 1991, at 4. The Postmaster for Naples, Idaho confirmed that Weaver had received "Aryan Nation... as well as other white supremacist, anti-goverment type literature" at his post office box. Report of Investigation by W. Warren Mays, March 5, 1991. 17. It was subsequently learned that this assertion was false. Weaver's military "DD-214" shows that he may have received some demolition training in an Army engineering unit, but that he was neither a Green Beret nor a member of the Special Forces. Sworn Statement of David Hunt, February 14, 1994, at 2, 6; FD-302 Interview of W. Warren Mays, October 5, 1993, at 2, 4. 18. Letter from Patrick F. Sullivan, Assistant Special Agent in Charge, U.S. Secret Service (Seattle) to Chris Nelson, Special Agent in Charge, BATF (Seattle), August 28, 1992, at 2. 19. FD-302 Interview of Randy Weaver, February 12, 1985, at 2. 20. Affidavit of Randy and Vicki Weaver, February 23, 1985. 21. See Letter from Patrick F. Sullivan, to Chris Nelson, August 28, 1992, at 2. 22. Terry Kinnison, the neighbor who reported the threats to the Bounday County Sheriff's Office, later notified the sheriff that Weaver had fired shots at him. Memorandum by Ronald Evans to Tony Perez, February 20, 1991. Report of Investigation by W. Warren Mays, Feburary 21, 1991, at 2. 23. Sworn Statement of Herbert G. Byerly, December 20, 1993, at 1-2; [G-J] 24. Fadely obtained information against a number of Aryan Nations members regarding the Couer d'Alene bombings, including David R. Dorr, Chief of Security for the upcoming Congress. Dorr and several others were later arrested and charged with the bombings. Byerly Sworn Statement, at 1-2. 25. Id. at 2. 26. Testimony of Herbert G. Byerly in United States v. Weaver, No. CR-92-080-N-EJL, April 21, 1993, at 8-9 (hereinafter cited as "Trial Testimony"). 27. Transcript of Conversation Between Fadeley, Weaver and Kimnick on January 20, 1987, at 4-6. See Byerly Sworn Statement, at 2. 28. Trial Testimony of Kennth Fadeley, April 20, 1993. 29. [G.J.] 30. Fadeley Trial Testimony, April 20, 1993, at 60-69. 31. In the interim, Weaver had run unsuccessfully in the Republican primary for sheriff of Bounday County. During his campaign, he promised to enforce only those laws the people wanted, and he distributed cards that said "get out of jail free." Weaver lost the primary, 384 votes to 102. "Survivalist Refuses to Come in From Cold," The Oregonian, October 1, 1991, C8; Feds Have Fugitive 'Under Out Nose'," Spokesman Review (Spokane), March 1, 1992, A19. 32. Fadeley Trial Testimony, April 20, 1993, at 45, 82-90. 33. ID. at 103, 112. 34. Byerly Sworn Statement, December 20, 1993, at 3-4. 35. Fadeley Trial Testimony, April 20, 1993, at 100-02. 36. Report by Byerly of Interview of Kenneth Fadeley, February 20, 1990, at 1. See Fadeley Trial Testimony, April 20, 1993, at 103, 112. [G. J.] 37. Report by Byerly of Interview of Kennth Fadeley, February 8, 1990, at 1 (herinafter cited as "Byerly Report"). Weaver later repeated this final statement in a recorded conversation. Transcript of Conversation Between Fadeley and Weaver, October 29, 1989, at 12. Fadeley told Weaver "the smaller [the weapon] the better." Weaver asked, "You mean 12 to 14 inches," to which Fadeley replied, "Yeah." Byerly Report, Feburary 8, 1990, at 1. 38. Fadeley Trial Testimony, April 20, 1992, at 105. 39. Byerly Report, February 8, 1990, at 1. According to Byerly, Fadeley said that Weaver showed Fadeley a shotgun and said he could cut the barrel off to about two inches in front of the slide. Byerly's report does not mention Fadeley's showing Weaver where to cut the barrel. Byerly told this investigation that he did not know "who may have instructed Weaver as to how to saw off the shotguns." Byerly Sworn Statement, December 20, 1993, at 6. 40. Byerly Trial Testimony, April 20, 1992, at 27. 41. [G.J.] Transcript of Conversation Between Fadeley and Weaver, October 13, 1989, at 2. 42. Transcript of Conversation Between Fadeley and Weaver, October 24, 1989, at 3, 6. The stocks on both weapons had also been cut. Section 5681 of Title 26 of the United State Code criminalizes that possession of unregistered firearms and the alteration of firearms by anyone not in the business of manufacturing firearms. Section 5845 (a) explains that the term "firearms" includes shotguns with barrels of less that 18 inches. 43. Byerly Report, February 28, 1990, at 2; Byerly Trial Testimony, April 20, 1993, at 32-34; Transcript of Conversation Between Fadeley and Weaver, October 24, 1989, at 4. 44 Id. at 6. Fadeley had originally planned to go with Weaver to Montana that day, however, because BATF was unable to arrange security, the trip was postponed. Id. at 6-13; Fadeley Trial Testimony, at 135. 45 Transcript of Conversation Between Fadeley and Weaver, November 30, 1989, at 6-12, 24, 31. Weaver explained that someone in Spokane had told him that Fadeley was "bad," meaning that Fadeley was a policeman. Weaver claimed, "You approached me and offered me a deal." Fadeley responded, "This scumbag . . . He's lying through his teeth cause I'm not a badge." Id. at 22. Later, Fadeley told Weaver "if you want to believe somebody else . . . it's been nice doing business with you, have a nice life." Weaver said that he would be less suspicious of Fadeley if their two families could meet, adding, "That's all I care about, is my family." Id. at 13, 15, 21-23. 46 Byerly Trial Testimony, April 20, 1992, at 46. 47 Statements of Byerly, January 14 & February 28, 1990. Byerly continued to obtain background information on Weaver. In about March 1990, Byerly met with Weaver's neighbors, the Raus, who complained that the Weavers had fired weapons at their property. Byerly Sworn Statement, December 20, 1993, at 8. 48 The report included a letter from Patrick Sullivan, a Special Agent in the Secret Service's Seattle Office, summarizing the 1985 Weaver investigation. This letter contained the only reference to Weaver's affiliation with the Aryan Nations in the case report. 49 Byerly Sworn Statement, December 20, 1993, at 8-9. 50 Byerly observed that Weaver was wearing an Aryan Nations belt buckle and jacket emblem. Id. at 10-11. 51 Id. at 10. Vicki Weaver described this encounter in a letter, dated June 12, 1990, addressed to the "Aryan Nations & all our brethren of the Anglo Saxon Race." She wrote: We cannot make deals with the enemy. This is a war against the sons of Isaac. Yahweh our Yashua is our Savior and King . . . . If we are not free to obey the laws of Yahweh, we may as well be dead! Let Yah-Yashua's perfect will be done. If its our time, we'll go home. If it is not we will praise his Separated name! 52 Id. at 10; Transcript of Interview of Ronald Howen, November 22-23, 1993, Tape 2, at 41 (hereinafter cited as "Howen Interview"). 53 Report of Investigation by Cluff (interview of Byerly), February 20, 1991, at 6; Memo from Evans to Perez, February 20, 1991, at 2. 54 Memo by Evans to Hunt, Cluff, and Mays, February 11, 1991; Byerly Sworn Statement, December 20, 1993, at 12. 55 See Pretrial Services Report, United States v. Randall C. Weaver, January 18, 1991. Sheriff Whittaker said that Vicki Weaver was not charged with carrying a concealed weapon because "that law is rarely enforced in the Boundary County area, because of peoples proclivity to wear or carry weapons. . . ." FD-302 Interview of Bruce Whittaker, November 20, 1993, at 3. 56 See Memo by AIIP Daniel J. Wehr to Insps. Roger A. Nisley and Paul E. Mallett, August 24, 1993 (interview with Gerry Spence), at 2-3. 57 Byerly Sworn Statement, December 20, 1993, at 6. 58 Byerly spoke about this with Assistant U.S. Attorney Hall. Byerly Trial Testimony, April 21, 1993, at 31-33. He later told the Department of Treasury that he had misspoken at trial and that he had discussed the issue of Kumnick's prosecution with Assistant U.S. Attorney Howen. Report by Donald Devane, Investigator, U.S. Treasury OIG, of Interview of Byerly, December 17, 1993 (hereinafter cited as "Devane Report"). 59 Byerly Sworn Statement, December 20, 1993, at 26-27. 60 Memorandum in Support of Defendants' Motions, January 6, 1993, at 2 (hereinafter cited as "Defendants' Memorandum"). 61 See Hampton v. United States, 425 U.S. 484, 488 (1976). 62 United States v. Busby, 780 F.2d 804, 805 (9th Cir. 1986). 63 Transcript of Conversation Between Fadeley and Weaver, November 30, 1989, at 22. 64 Id. 65 Affidavit of Kenneth Fadeley, December 7, 1993, at 4. 66 Fadeley Trial Testimony, April 20, 1993, at 105; Report by Byerly of Interview of Kenneth Fadeley, February 28, 1990, at 1. 67 See Byerly Report, February 8, 1990, at 1; Byerly Sworn Statement, December 20, 1993, at 6. 68 Weaver evidently knew that the transaction with Fadeley was illegal, since he asked Fadeley if he had "a cover, a legit business." See Transcript of Conversation Between Fadeley and Weaver, November 30, 1989, at 6-12, 24, 31. 69 Byerly has also asserted that during this period he was working on other cases that required attention. Devane Report, January 14, 1994. 70 Howen Interview, Tape 1, at 13, Tape 2, at 41. --------------------------------------------------------------------------- IV. SPECIFIC ISSUES INVESTIGATED B. The Failure of Weaver to Appear for Trial 1. Introduction On January 18, 1991, Randy Weaver was arraigned on the charges that he made an possessed illegal firearms. At that time, the court set February 19, 1991, as the trial date. Several weeks later the court clerk sent a notice to the parties informing them that the trial date had been changed from February 19 to February 20. Two days later, U.S. Probation Officer Karl Richins sent a letter to Weaver in which he erroneously referred to the trial date as March 20, 1991. When Weaver did not appear in court on February 20, the court issued a bench warrant for his arrest. Almost a month later, on March 14, 1991, when the bench warrant was still outstanding, a federal grand jury returned an indictment against Weaver charging him with failure to appear for trial. A number of issues have been raised with regard to the conduct of the government in handling this stage of the Weaver matter. These issues include: whether government officials, particularly the U.S. Attorney's Office, knew about the erroneous Richins letter before the court issued the February 20 bench warrant; whether the government responded appropriately to the issues created by the Richins letter; whether the U.S. Attorney's Office erred in presenting the indictment to the grand jury before March 20; [G.J.] 2. Statement of Facts a. January 18, 1991 Arraignment On December 13, 1990, a federal grand jury indicted Randy Weaver for making and possessing illegal firearms.[FN71] BATF Agent Herbert Byerly arrested Weaver on January 17, 1991 and transported him to Coeur D'Alene, Idaho for arraignment. On January 18, Byerly informed Assistant U.S. Attorney Howen that Weaver had been arrested, that Weaver had resisted arrest, that Weaver had said when arrested, "nice trick; you'll never do that again" and that Weaver appeared to be associated with the Aryan Nation. Byerly also provided background information on the case and recommended to Howen that Weaver be detained because Byerly did not believe that he would appear for trial. According to Byerly, Howen responded that it would be difficult to detain Weaver and did not offer to oppose the release of Weaver.[FN72] Weaver appeared in court for his arraignment the following day before U.S. Magistrate Judge Stephen Ayers. No one was present for the government at the arraignment nor was Weaver represented by counsel.[FN73] Before releasing Weaver, Judge Ayers instructed him that he was required to report on a regular basis to Karl Richins, the Pretrial Service Officer, in Boise and that his first contact was to be on January 22.[FN77] Later, Judge Ayers, in order to avoid any misunderstanding, added Richins' name and phone number to the order setting forth the release conditions.[FN78] Judge Ayers told Weaver that it would be a criminal offense if he failed to appear. Weaver said that he understood the penalties for violating the release conditions and that he agreed to abide by those conditions. Thereafter, he signed and received a copy of the release conditions.[FN79] Weaver also signed a bond and the court explained that the bond could be executed if he failed to appear for trial.[FN80] Before terminating the proceeding, Judge Ayers had Weaver confirm that his mailing address was Box 103 in Naples, Idaho.[FN81] b. Events Occurring From the Arraignment Through February 20, 1991 (1) Communications With Weaver On January 22, 1991, four days after the arraignment, Judge Ayers sent a letter to Everett Hofmeister informing him that he had been appointed defense counsel for Weaver, that Weaver could be contacted at "PO Box 103, Naples, Idaho 83847" and that the trial date was set for February 19, 1991. A copy of this letter was sent to Weaver. On that same day, Weaver telephoned Karl Richins, the U.S. Probation Officer, and informed Richins that he had been ordered to call Richins on that date. Richins told Weaver that he had not received the paperwork on his case and, thus, could not advise him about the release conditions. Richins asked Weaver to leave his name and phone number so that Richins could call him when he received the case file. According to Richins, Weaver never gave him a phone number where he could be contacted nor could Richins recall what understanding the parties had as to how Richins would contact Weaver in the future.[FN82] After this conversation, Richins never heard from Weaver again.[FN83] On January 19, 1991, defense counsel Hofmeister sent a letter to the two addresses he had for Weaver, requesting Weaver to contact him. Hofmeister sent similar letters to Weaver at these addresses on January 31 and February 5. Around February 5, Hofmeister contacted individuals who knew Weaver and requested that they instruct Weaver to contact Hofmeister immediately.[FN84] Meanwhile, in early February, the court learned that the Weaver trial, which had been scheduled for February 19, would have to be changed to give the participants sufficient travel time following a federal holiday on the preceding Monday. On February 5, the court clerk sent a notice to the parties informing them that the trial was rescheduled for February 20, 1991. Although this notice was not sent directly to Weaver, a copy was sent to and received by Hofmeister.[FN85] Two days later, on February 7, 1991, probation officer Richins sent a letter to Weaver at his Naples address. Richins wrote: On January 18, 1991, you were released on Pretrial Supervision pending your trial set for March 20, 1991. You contacted our office and I advised you we would be getting back with you as soon as we received the paper work from Magistrate Ayers. I have long ago received the paperwork but have been unable to locate a telephone number where I could contact you. Accordingly, with this letter, I are [sic] requesting you to contact me at 334- 1630 as soon as possible. You may call collect if you choose.[FN86] (Emphasis added.) According to Richins, he wrote the letter because he needed to establish pretrial supervision of Weaver and had not heard from Weaver since their January 22 phone conversation.[FN87] The only explanation that Richins could provide for the erroneous trial date was that it was a typographical error. At trial, Richins expressed regret for the error and testified that he had placed the date in the letter as part of his effort to get Weaver to contact him. [FN88] Weaver never responded to Richins' letter.[FN89] On February 8, 1991, after receiving the February 6 court notice, Hofmeister wrote another letter urging Weaver to contact him and informing Weaver that the trial date had been changed to February 20. Four days later, having still not heard from Weaver, Hofmeister placed numerous unanswered calls to a telephone number at which Weaver reportedly received messages. In addition, Hofmeister asked individuals who had contact with Weaver to ask Weaver to contact Hofmeister immediately. However, as of the morning of February 20, Weaver had not contacted Hofmeister. [FN90] (2) The "Queen of Babylon" Letters and the Threat Assessment by the U.S. Marshals Service On February 7, 1991, the U.S. Attorney's Office in Boise received two letters signed by Vicki Weaver. The first letter was dated January 22, 1991 -- the same day that Weaver called Richins - and was addressed to "The Queen of Babylon." It stated in part: A man cannot have two masters. Yahweh Yahshua Messiah, the anointed One of Saxon Israel is our law giver and our King. We will obey Him and no others. . . . 'a long forgotten wind is starting to blow. Do you hear the approaching thunder? It is that of the awakened Saxon. War is upon the land. The tyrants blood will flow.'[FN91] The last quote was credited to "Mathews." The second letter, dated February 3, 1991, was addressed to "Servant of the Queen of Babylon, Maurice O. Ellsworth, U.S. Attny [sic]" and stated in part: Yah-Yahshua the Messiah of Saxon Israel is our Advocate and our Judge. The stink of your lawless government has reached Heaven, the abode of Yahweh our Yahshua. Whether we live or whether we die, we will not bow to your evil commandments.[FN92] Ellsworth did not associate the name Vicki Weaver with any matter pending in his office.[FN93] However, because the language of the letters appeared somewhat threatening, he requested the U.S. Marshals Service in Boise ("USMS") to conduct a threat assessment of the letters.[FN94] Deputy U.S. Marshal Warren Mays was assigned to perform the threat assessment.[FN95] After checking with state and local agencies, Mays determined that Vicki Weaver was the wife of Randy Weaver.[FN96] Once this connection was made, Chief Deputy U.S. Marshal Ronald Evans convened a staff meeting, to determine how to proceed with the threat assessment. It was decided that Deputy U.S. Marshal David Hunt would be assigned to assist Mays in the inquiry.[FN97] Thereafter, Hunt and Mays began to gather information to enable them to prepare a "Threat Source Profile" of Weaver.[FN98] Mays first reviewed the bail report prepared for Weaver which revealed that Weaver had admitted membership in the "Aryan Nations/Church of Jesus Christ Christian," had attended three Aryan World Congresses and had been wearing and Aryan Nations belt buckle at the time of the arrest.[FN99] In addition, Mays analyzed the language in the two letters written by Vicki Weaver and concluded that the letters contained "rhetoric commonly associated with the Aryan Nations/Church of Jesus Christ Christian."[FN100] Evans characterized defense counsel Hofmeister as "a noted [Aryan Nations] attorney."[FN101] Based on this information, Mays initially concluded that the two letters from Vicki Weaver contained veiled but not overt threats.[FN102] Mays next asked Senior Deputy U.S. Marshall Jack Cluff, the resident officer in Moscow, Idaho, about the pending firearms charge against Weaver. Cluff suggested that Mays contact BATF Agent Byerly. Cluff also told Mays that he had learned from Lonnie Ekstrom, a deputy in the Boundary County Sheriff's Office, that Weaver had sent a letter to that office stating that he would not leave his cabin and that law enforcement officers would have to take him out.[FN103] Ekstrom recalled that in the letter the Weavers voiced, "sentiments which indicated that [they] felt as though the end is near and [that] the Federal Agents are watching very closely."[FN104] Cluff told Mays that Byerly had described Weaver as being "extremely uncooperative at the time of his booking" and believed that Weaver "planned not to appear for future court proceedings." [FN105] Byerly also reported to Cluff that Weaver: is very adamant and very convinced in his own mind of his religious beliefs in that the government is posing a threat to him. He is very anti-government. He believes that this charge by the federal government against him is the beginning of Armageddon. The religious war is about to begin. The end of the world is coming and he is ready to make his stand in the final battle. I would urge utmost caution and care in his arrest. I believe his children are going to be armed. If the situation is such that they were present during his apprehension, I believe that they should definitely be considered to be a threat to the arresting officers.[FN106] Mays next spoke with Special Supervisory Agent Michael Kelly who reported that the entire Weaver family, including the 12 and 14 year old children, were armed "at all times." Kelly told Mays that a BATF informant had indicated that the Weaver children slept with weapons in their beds.[FN107] Neither Kelly nor anyone else in BATF advised either Hunt or Mays that BATF had attempted to solicit Weaver to work as an informant. Indeed, it was not until over a year later that the marshals learned of this action.[FN108] As their investigation continued, Mays was briefed by the U.S. Secret Service on its investigation of Weaver for alleged threats he had made against President Reagan and the Governor of Idaho in 1985.[FN109] In addition, Mays and Hunt interviewed people in the community who might have further background information on Weaver.[FN110] Hunt and Mays also reviewed a copy of the military record "DD-214" for Weaver. Although the record did not indicate that Weaver had been a Green Beret or a member of the Special Forces, they speculated that Weaver may have received some general demolition training based on an indication in the record that Weaver had training as a "combat engineer."[FN111] On February 11, 1991, Mays forwarded the materials that he had gathered on Weaver to the Marshals Service Threat Analysis Division.[FN112] Around this time, Mays briefed Ellsworth on their findings. Mays told Ellsworth that they did not believe that he was personally at risk and that they doubted that Weaver would appear for trial.[FN113] When Ellsworth learned that Vicki Weaver was the wife of Randy Weaver, he discussed the matter with Assistant U.S. Attorney Howen, who had been assigned to the Weaver prosecution.[FN114] Ellsworth showed Howen the January 22 letter from Vicki Weaver. Howen identified "the long forgotten wind" passage as not being from the biblical book of Matthew but rather from the "Declaration of War" written by Robert Mathews, the founder of "The Order," a white supremacist group.[FN115] Soon after he wrote the Declaration, Mathews was killed during a standoff with the FBI at a house on Whidbey Island, Washington. Shortly after Howen relayed this information to Ellsworth, Chief Deputy Marshal Evans reported to Tony Perez, the Chief of Enforcement Operations at Marshals Service Headquarters, that sources within BATF had stated that Weaver had the potential to be "another Bob Mathews and his homestead another Whidbey Island standoff."[FN116] c. February 20, 1991 - The Rescheduled Trial Date Although the USAO continued preparing the Weaver case for trial, members of that office were beginning to doubt that Weaver would appear for trial. Sometime before February 20, defense counsel Hofmeister told Assistant U.S. Attorney Howen that he had been unable to contact Weaver. Based on this information, the two letters sent by Vicki Weaver and the information developed during the threat assessment, Howen concluded that Weaver would not appear for trial. Despite the indications that Weaver would not appear for trial, Howen told Byerly that they needed to continue preparing for trial. As a cautionary measure, Howen instructed Byerly to be in court on February 19, the original trial date, in case Weaver appeared.[FN117] Byerly was present in court on February 19, but Weaver did not appear. Howen insisted that he had no knowledge of the Richins letter at the time or when he appeared in court the following day.[FN118] On February 20, Howen and defense counsel Hofmeister appeared before U.S. District Court Judge Harold L. Ryan. At that time, Hofmeister told the court that he had been unable to contact Weaver.[FN119} Hofmeister then detailed the efforts that he had taken to communicate with Weaver. In addition, Hofmeister said that on the weekend before trial his answering service had received no calls from Weaver and that none of the letters he had sent to Weaver -- all of which had been sent by regular mail -- had been returned.[FN120] Howen told the court that it was his understanding that Weaver had not kept in contact with Pretrial Services as required. He requested that a bench warrant be issued for Weaver's arrest, that his bond be revoked, and that he be taken into custody.[FN121] Judge Ryan, after determining that the presence specialist had no information about whether Weaver had contacted pretrial services, ordered that a bench warrant be issued for Weaver because he had failed to appear for trial.[FN122] According to Judge Ryan, it was routine practice for him to issue a bench warrant whenever a defendant failed to appear for trial.[FN123] At that time the Weaver matter had no notoriety and was "just another case" to him.[FN124] d. Discovery of the Richins Letter and the Response of the Government On February 26, 1991, Ken Keller, a reporter from the Kootenai Valley Times in Bonners Ferry, Idaho, telephoned the U.S. Probation Office and asked Duty Officer Manning whether Weaver had not appeared for trial on February 20 because Richins had sent a letter to him stating that the trial date was March 20. Thereafter, Manning apprised Terrence Hummel, the Chief Probation Officer, of the inquiry. When Hummel retrieved the Richins letter, he discovered that it did, indeed, erroneously refer to the trial date as being on March 20.[FN125] Hummel promptly contacted Jim Martin, Judge Ryan's law clerk, and told him of the error in the Richins letter.[FN126] Thereafter, they contacted Chief Deputy Marshal Ronald Evans and notified him of the mistake. Evans told them that the Marshals Service "did not intend to execute the warrant until possibly March 16" and would agree to defer execution until March 23.[FN127] Martin told Hummel that he would inform Judge Ryan of the mistake and determine if he wanted to withdraw the bench warrant.[FN128] In addition to notifying the court and the Marshals Service, Hummel also informed U.S. Attorney Ellsworth of the Richins letter and sent him a copy.[FN129] During that conversation, Hummel suggested that Ellsworth not present the failure to appear charge to the grand jury until April. He characterized Ellsworth as being noncommittal regarding this proposal.[FN130] Later that day, Hummel telephoned Hofmeister and informed him of the Richins letter.[FN131] In a confirming letter to Hofmeister, Hummel stated that he had notified Judge Ryan and the USAO of the error and that he had recommended that the warrant not be executed until after March 20.[FN132] Following these discussions, Hummel returned the initial call from reporter Keller. In a memorandum to the file, Hummel wrote that he told Keller that he did not know if Weaver had received the Richins letter and that he had not indicated "one way or another whether or not Mr. Richins had, in fact, sent that letter."[FN133] On February 28, Keller wrote in an article that Hummel had disclaimed knowledge of the Richins letter.[FN134] Hummel insisted to investigators that he never denied the existence of the letter but explained that he was cautious about his statements because of the constraints imposed by the Bail Reform Act regarding the pretrial disclosure of information.[FN135] When Judge Ryan returned to his chambers on February 27, Martin briefed him about the Richins letter. Judge Ryan believed that the arrest warrant should not be withdrawn since Hofmeister had been informed of the change and had attempted to tell Weaver.[FN136] Thereafter, Martin informed Evans that Judge Ryan did not wish to withdraw the bench warrant. According to Evans, Martin stated that Judge Ryan made this decision after reasoning that Weaver had been told that the trial date was February 19 and that Richins was without authority to change the trial date. Martin also told Evans that Judge Ryan wanted the Marshals Service to bring Weaver before him during the week of March 11, since after that time he would be unable to hear the case until late May 1991. [FN137] Sometime around February 27, Michael Johnson, the U.S. Marshal for the District of Idaho, asked Hummel to send another letter to Weaver informing him of the trial date error and the bench warrant and asking him to contact the pretrial services officer immediately.[FN138] However, Richins testified that no steps were ever taken to inform Weaver of the mistakes in the letter. On February 28, Evens met with Ellsworth, Howen and Mays to discuss the failure of Weaver to appear for trial, the Richins letter[FN140] and the possibility of presenting an indictment to the grand jury.[FN141] According to Ellsworth, Evans was concerned about the impact of the Richins letter and questioned Ellsworth about how the Marshals Service should proceed. After this discussion, Ellsworth replied, "let's go ahead and return the failure to appear indictment. And if Mr. Weaver appears on March the 20th, we may to [sic] have to dismiss it."[FN142] Ellsworth advised Evans that Weaver was obligated to appear on February 20 since his counsel had received the court notice with the proper date.[FN143] Hunt testified at trial that the Richins letter created "a potential here for some reasonable misunderstanding."[FN144] Hunt explained that if Weaver had appeared on March 20, they had contemplated that dismissal of the indictment was possible.[FN145] According to Mays, in light of the Richins letter, the position of the Marshal Service was that the bench warrant and the indictment "would be dropped" if Weaver appeared on March 20. [FN146] Because of the Richins letter, the Marshals Service decided to wait until after March 20 to effect the warrant.[FN147] In the interim, the Marshals Service continued to gather information about Weaver, in part to determine if contact could be made with him. [FN148] On March 4, Hofmeister informed Evans that despite numerous phone calls and letters, Weaver still had not contacted him.[FN149] Since Weaver was not communicating with his own counsel, the marshals concluded that a friend of the Weavers might be more successful in conveying a message to them. The marshals identified Bill and Judy Grider as candidates for this role. The Griders lived in a cabin near the Weavers and were known to share philosophical views similar to those held by the Weavers.[FN150] On March 5, Hunt and Mays met with the Griders and informed them that they had an arrest warrant for Weaver. Bill Grider told the marshals that Weaver believed that he was being persecuted and would be treated unfairly if he submitted to the system. At that point, Judy Grider stated that Weaver had received a letter from the court telling him that he did not have to appear until March 20. The marshals asked the Griders to inform Weaver that they did not want a confrontation and that he should surrender to authorities. The Griders agreed to convey the message and to report Weaver's response.[FN151] Hunt and Mays met with the Griders the next day. At that time, Bill Grider gave the marshals a letter from Weaver, which he said contained Weaver's response to the surrender request. The letter, dated March 5, 1991, was addressed to the "Servants of the Queen of Babylon" and was signed by all five Weavers -- Randy, Vicki, Sara, Samuel and Rachel. It stated in part: We