DoJ Report Regarding Internal Investigation of Shootings at Ruby Ridge, Idaho
DEPARTMENT OF JUSTICE REPORT REGARDING INTERNAL INVESTIGATION OF SHOOTINGS AT RUBY RIDGE, IDAHO DURING ARREST OF RANDY WEAVER
On Aug. 22, 1992, on a remote ridge in northern Idaho, a weeklong
standoff between white supremacist Randy Weaver and federal agents
ended in a shootout in which an FBI sniper shot andkilled Weaver's
wife, Vicky. The Ruby Ridge confrontation began aweek earlier when
federal marshals tried to arrest Weaver forfailing to appear in court
on weapons charges. At that time, a gunbattle erupted between marshals
and Weaver's 14-year-old son,resulting in the deaths of Weaver's son
and a marshal.
The incident led to one of the most intensive internal reviews of an
FBI investigation ever. Attorney General Janet Reno established a
Justice Department task force to investigate theevents at Ruby Ridge.
The task force concluded in a 1994 reportthat the FBI's Hostage Rescue
Team overreacted to the threat ofviolence and instituted a
shoot-on-sight policy that violatedbureau guidelines and Fourth
Amendment restrictions on policepower. The FBI disciplined 12 agents
and employees, includingLarry Potts, then the head of its criminal
division and now itsdeputy director, for their roles in the operation.
The following document, which is contained in theattached files, is
the full text of the task force's unreleased542-page report, which was
obtained by LEXIS COUNSEL CONNECT.
In the hard copy of this document, some material has beendeleted and
marked by the word "Garrity," apparently referring toU.S. Supreme
Court opinion Garrity v. New Jersey (1967). UnderGarrity, government
employees must be granted immunity fromcriminal prosecution if they
provide information during anadministrative investigation.
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 1
73
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 I
mportant 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 thecriminal 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 thismatter 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. MarshalsService ("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 actionsthat 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, thesubsequent governmental delay in seeking an
indictment on thefirearms 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 andWeaver's son, Sammy
Weaver. Next, the report contains adiscussion 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 subsequentactivities in assisting the
USAO in preparing the Weaver casefor trial. Finally, the last section
of the report addressesthe handling by the USAO and the investigative
agencies of theprosecution of Weaver and Harris including
representation madeby the U.S. Attorney to the court prior to the
beginning ofHarris' preliminary hearing, the conduct of the Assistant
U.S.Attorney before the grand jury and the untimely disclosure
ofcritical 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 aBATF
informant. When BATF agents later attempted to enlistWeaver as an
informant in their investigation of the AryanNations, Weaver refused
to cooperate. Seven months later, thegovernment indicted Weaver for
the illegal weapons sales. Wehave found no evidence to support the
claim that BATF targetedWeaver because of his religious or political
beliefs. Similarly, we found insufficient evidence to sustain the
chargethat Weaver was illegally entrapped into selling the weapons.
When Weaver was arraigned on the weapons charges inJanuary 1991, he
was told that his trial would commence onFebruary 19, 1991. Two weeks
later, the court clerk notifiedthe parties that the trial date had
been changed to February 20,1991. Shortly thereafter, the U.S.
Probation Office sent Weavera letter which incorrectly referenced his
trial date as March20, 1991. After Weaver failed to appear for trial
on February20, the court issued a bench warrant for his arrest.
Threeweeks later, on March 14, a federal grand jury indicted Weaverfor
his failure to appear for trial. We found that: thegovernment,
especially the USAO, was unnecessarily rigid in itsapproach to the
issues created by the erroneous letter; that theUSAO 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 informationthat it collected, the Marshals Service
learned that for manyyears Weaver had made statements about his intent
to violentlyconfront federal law enforcement officials. As a result,
theMarshals Service concluded that Weaver intended to resistviolently
governmental attempts to arrest him. Thereafter, theMarshals Service
investigated and carefully consideredalternatives that would enable it
to arrest Weaver withoutendangering his family or law enforcement
personnel. Itconcluded 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
marshalsretreated with the dog, Harris, Randy Weaver and his son,
SammyWeaver, and other family members in pursuit. At an area knownas
the "Y," a gun battle occurred in which Deputy Marshal Deganand Sammy
Weaver were killed.
We conclude that the marshals took a measured approach indeveloping a
plan to apprehend Weaver. Throughout the 18 monthperiod that the
marshals were responsible for apprehendingWeaver, they carefully
devised a plan intended to pose the leastamount of risk to Weaver, his
family, and the marshals. At notime did we find that it was the intent
of the marshals to forcea confrontation with Weaver or his family.
Although some mayquestion the expenditures of manpower and resources
by theMarshals Service during this 18 month period, we believe
thatinstitutional pressure created by the existence of a benchwarrant
and an indictment, left the Marshals Service with littlechoice but to
proceed as it did. Moreover, the USAO did littleto assist the Marshals
Service in this matter. Indeed, duringthe first part of this process
the USAO thwarted the efforts ofthe Director of the Marshals Service
to focus the court on thedanger involved in making the arrest and
incorrectly terminatedefforts by the Marshals Service to negotiate
with Weaver throughintermediaries.
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, wehave been unable to determine
conclusively who fired the firstshot during the exchange of gunfire.
Although there is evidencethat one of the marshals shot Sammy Weaver
during the exchangeof gunfire, we found no proof that the shooting of
the boy wasanything 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 exaggeratedthe 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
byspecially formulated Rules of Engagement ("Rules"). These
Rulesinstructed the HRT snipers that before a surrender
announcementwas made they could and should shoot all armed adult
malesappearing outside the cabin. Operating under these Rules onAugust
22, an FBI sniper/observer fired two shots in quicksuccession. The
first shot was at an armed adult male whom hebelieved was bout to fire
at a HRT helicopter on an observationmission. The first shot wounded
Randy Weaver while in front ofa building at the Weaver compound known
as the birthing shed. The second shot was fired at Harris while Harris
was retreatinginto the Weaver cabin. The second shot seriously wounded
Harrisand killed Vicki Weaver who was behind the cabin door.
Following this shooting incident FBI officials spent thenext eight
days attempting to convince Weaver and Harris tosurrender to federal
authorities. Finally, due largely to theefforts of nongovernmental
negotiators, Harris and Weaversurrendered on August 30 and August 31
respectively. Thereafter, the FBI completed its searches of the cabin
andsurrounding areas. During the following month, the FBI
alsoconducted an internal review of the shooting incident todetermine
if the sniper had responded appropriately.
Our review found numerous problems with the conduct ofthe FBI at Ruby
Ridge. Although we concluded that the decisionto deploy the HRT to
Ruby Ridge was appropriate and consistentwith Department policy, we do
not believe that the FBI's initialattempts at intelligence gathering
at the scene weresufficiently thorough. We also found serious problems
with theterms of the Rules of Engagement in force at Ruby Ridge.
Certain portions of these Rules not only departed from the
FBI'sstandard deadly force policy but also contravened theConstitution
of the United States. In addition, we found theseRules to be imprecise
and believe that they may have created anatmosphere that encouraged
the use of deadly force therebyhaving the effect of contributing to an
unintentional death.
With regard to the two shots fired on August 22, weconcluded that the
first shot met the standard of "objectivereasonableness" the
Constitution requires for the legal use ofdeadly force but that the
second shot did not satisfy thatstandard. It is our conclusion that
the sniper/observer whotook the second shot intended to shoot Kevin
Harris butaccidentally killed Vicki Weaver whom he did not see behind
thecurtained door. We also found the internal FBI review of
theshooting incident has not been sufficiently thorough and
reachedincorrect conclusions about the second shot.
Our examination of the command and control of the crisisby the FBI,
found numerous shortcomings. These shortcomingsincluded 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 ofsome of the participants coupled with inaccuracies in
thesearches adversely affected the prosecution and contributed tothe
negative impression of the government generated during thetrial. We
found no evidence that these deficiencies wereintentional or that the
FBI staged evidence for theprosecution's benefit.
Shortly after their arrest, separate preliminary hearingswere held
for Weaver and Harris. While arguing the government'smotion requesting
a continuance of the Harris preliminaryhearing, U.S. Attorney
Ellsworth made statements indicating thatthe government would allow
Harris to have a complete preliminaryhearing in return or consenting
to the continuance. Thereafter,Harris consented to the continuance
with the understanding thathe would have a full preliminary hearing.
An indictment wasreturned against Harris while his preliminary hearing
was inprogress. We have found that the U.S. Attorney did
notintentionally misrepresent the government's position but that
hefailed to appreciate the impact of his statements and that
heneglected to pay sufficient attention to the information thatthe
received concerning the probably length of the preliminaryhearing.
After the first indictments were returned against Weaverand Harris,
the Assistant U.S. Attorney continued to presentevidence to the grand
jury which led to the return of twosuperseding indictments, each
containing a conspiracy count. Wefound these conspiracy counts to be
overly broad and to containsome 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 notconstitutionally support the
imposition of a death sentence. Wehave concluded that the decision to
seek the death penalty,although made in good faith, gave the
appearance that thegovernment was overreaching.
From the moment that the USAO began to prepare the casefor trial, it
met with resistance from the FBI. This resistancetook many forms, all
of which served to make preparation of thecase more difficult. The FBI
continuously opposed actions ofthe prosecutors requested to prepare
the case for trial, rangingfrom having the case agents conduct out-of
state interviews toenlisting 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
coequalmember of the prosecution team. Furthermore, when the
USAOsought advice and assistance from the FBI Laboratory they metwith
unjustified delays and resistance that created discordwithin the team
and disrupted trial preparation. These problemscontributed to the
USAO's decision to retain private forensicexperts.
In addition, the FBI unjustifiably delayed producingmaterials to the
USAO that were needed for trial preparation andthat were clearly
discoverable under federal law and thediscovery stipulation signed by
the parties. This actionunreasonably delayed the availability of these
materials fortrial preparation and for discovery. Particularly at
theheadquarters level, we found that the FBI's efforts to locateand
produce discoverable documents to be disorganized andincomplete. The
late production during trial of materialsassociated with the FBI
Shooting Incident Report negativelyaffected the court's and the jury's
perception of the governmentand the government's case. In addition,
the delays in discoverycaused by the disorganization of and mistakes
committed by theFBI Laboratory contributed to the delay of the trial
and to theperception that the government was uncooperative and not
beingtotally 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 takenintentionally to obstruct the Weaver trial.
C. Significant Recommendations
As the result of our investigation, we have made sevenbroad
recommendations. First, we recommend that all federal lawenforcement
officers be governed by a standard deadly forcepolicy and that the
Department of Justice be responsible fordeveloping such a policy. in
addition to specifying clearly thecircumstances in which deadly force
may be used, the policyshould define the occasions in which special
Rules of Engagementmay 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 torespond to crises. In
addition, we endorse the proposal toinclude specially trained
prosecutors to provide legal supportto tactical teams when needed. We
also propose periodic jointtraining exercises by the various federal
and local lawenforcement agencies which are responsible for responding
tocrisis 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 wouldfocus on the thoroughness and prosecutive merit of
the internalreview.
Fourth, we recommend that FBI field offices that do not have a team in
place to recover evidence after majorhostage/barricade crises like
Ruby Ridge request the assistanceof the Evidence Response Team at FBI
Headquarters. We furtherrecommend that procedures be adopted to
improve the coordinationbetween 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' Officesinstitute a review
process for indictments, at least forsignificant cases.
Finally, we recommend that our findings concerning theevents
surrounding the shooting of Vicki Weaver on August 22,1992 be referred
to the appropriate component of the Departmentof Justice to assess
prosecutive merit. In addition, werecommend that our analysis of the
conduct of Assistant U.S.Attorney Ronald Howen be referred to the
Executive Office forUnited States Attorneys for whatever
administrative action itdeems appropriate.
II. ORIGINS OF THE INVESTIGATION AND METHODOLOGY EMPLOYED
In February 1993, the Criminal Division of the UnitedStates
Department of Justice (the "Department") informed theOffice of
Professional Responsibility ("OPR") of allegations ofprofessional
misconduct and criminal wrongdoing by agents of theU.S. Marshals
Service ("Marshals Service"), the Federal Bureauof Investigations
("FBI"), the United States Attorney's Officefor the District of Idaho
("USAO"), and the Bureau of Alcohol,Tobacco and Firearms ("BATF"),
stemming from their involvementin the investigation, apprehension, and
prosecution of RandyWeaver and Kevin Harris. Because Weaver and Harris
wereawaiting trial, OPR in conformity with its normal policy
ofavoiding interfering with the criminal process, postponed itsinquiry
until the litigation had concluded.
Following the jury verdict in July 1993, OPR began itsinquiry. OPR
was aware of numerous allegations of impropriety,some of which had
been raised in defense pleadings and manyothers that arose during and
immediately after trial. Allegations by various people and groups --
the media, the trialcourt, the United States Attorney's Office, the
FBI, and U.S.Senator Larry Craig of Idaho, as well as the public --
suggestedthe personnel of the United States government had engaged
inwillful misconduct, including obstruction of justice, perjury ,and
other criminal and ethical violations. As a result, itbecame apparent
that the scope of inquiry needed to be broaderthan merely issues that
had been raised at trial by the defense.
Attorney General Janet Reno announced that the inquirywould include a
complete and thorough review of the Weaver casefrom its inception to
the conclusion of the criminal trial. OPRwas to conduct this inquiry
with investigative support from theFBI.
On July 26, 1993, Michael E. Shaheen, Jr., Counsel in theOffice of
Professional Responsibility detailed the role of OPRand the FBI in the
inquiry in a letter to David G. Binney,Assistant Director of the FBI's
Inspection Division. Concernshad been raised about the FBI's ability
to be objective and toinvestigate alleged misconduct by its own
agents. Some who hadparticipated in the Weaver investigation and
prosecution and hadexperienced a decided lack of harmony in their
workingrelationship with the FBI, opposed the Bureau's involvement
inthe investigation. However, OPR's experience with the FBI
ininvestigations in which the FBI was the subject -- including
aninvestigation of its own Director -- demonstrated that theBureau
could be objective under OPR's supervision. Furthermore,the broad
scope of the Weaver inquiry and the need for FBIexpertise suggested
that the Bureau be included in the inquiry.
From the beginning of the investigation OPR attorneysestablished 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 andconducting interviews. The
FBI was not to make findings,conclusions, or recommendations.
Due to the expansive scope of the inquiry, former DeputyAttorney
General Philip Heymann assigned four attorneys from theCriminal
Division of the Department of Justice to assist OPR. It was decided
that the review would cover: the conduct of theMarshals Service in its
investigation of Randy Weaver from itsinception to the conclusion of
the trial; the actions of the FBIHostage Rescue Team ("HRT") during
the siege of the Weaverresidence; the handling of evidence by the FBI
Laboratory andits effect on the Weaver trial; and the conduct of the
U.S.Attorney's Office in investigating and prosecuting the Weavercase.
OPR contacted the Department of Treasury ("DOT"), whichhad also
received complaints about BATF's conduct and agreedthat its Inspector
General's Office would investigate thatmatter. However, it was
understood that OPR would address thoseelements of the BATF
investigation that affected the Weaver caseand involved Department of
Justice employees. To that end, OPRinvited DOT to participate in
interviews relevant to itsinvestigation and to review material --
other than grand jurytestimony -- that would assist its inquiry.
Although DOT ispreparing a report of its investigation, this report
discussesissues involving BATF that affected the Weaver matter.
The FBI initially assigned 15 Inspectors and twoadministrative
support personnel to the Ruby Ridge InspectionTeam to work with the
five DOJ attorneys. During the firstphase 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 beaddressed. By August 1993, the team had determined
thebackground interviews that needed to be conducted and hadidentified
documents that needed to be reviewed, including casefiles and
supporting materials form the Marshals Service, theUSAO, and the FBI.
Initially, the investigators used a research systemconsistent with a
typical FBI investigation. However, they soonrealized that a thorough
review of the Weaver matter wouldbenefit from the support of the FBI's
Rapid Start team of theInformation Resources Division of FBI
Headquarters. Rapid Startis a mobile group of FBI employees who
provide informationmanagement services to major cases. The Rapid Start
teamdeveloped an automated case management system to assist
theinvestigators in capturing, storing and retrieving information. The
team also assisted the investigation in tracking leads andwith
document control.
As Phase I of the investigation entered its final stages,it became
apparent that the volume of material to be reviewedand the broad scope
of the inquiry would require more personneland time than had
originally been contemplated. A decision wasmade to increase the size
of the investigative team. Thus, whenPhase II of the investigation
began on September 21, 1993, theRuby Ridge Inspection Team was doubled
in size to include twofull-time Inspectors, 26 Assistant Inspectors,
and 10 supportpersonnel.
Phase II was the investigative phase of the project. Theinspectors
were divided into the four teams. The first team wasresponsible 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 crimescene, and the actions of the FBI HRT
and its Rules ofEngagement. The last team examined the actions of the
USAO throughout its involvement in the Weaver matter. Each team
wascomprised of a DOJ Attorney, an inspection team leader, and fiveor
six inspectors. The inspectors were encouraged to coordinatetheir
inquiry with the DOJ attorney. Many interviews involvedwitnesses who
had knowledge of issues being investigated by morethan one team. In
those instances, inspectors from the otherteams either attended the
interview, scheduled separateinterviews, or submitted preliminary
questions to determinewhether an additional interview was necessary.
The FBI inspectors and DOJ attorneys conducted over 370interviews of
persons involved in the Ruby Ridge incident,including personnel of
local, state, and federal law enforcementagencies, the USAO, the
Department of Justice, as well as membersof the federal judiciary and
nongovernmental witnesses.[FN1]The interviews were conducted
throughout the United States and,in some instances, supplemental
interviews were conducted forclarification. Although the majority of
the interviews wereconducted by FBI inspectors, virtually all
significantinterviews were conducted jointly by FBI inspectors and
DOJattorneys. In addition, thousands of pages of records and fileswere
reviewed.
Before the interview process began, DOJ and FBI personneldeveloped a
witness notification form describing the scope andpurpose of the
inquiry. Each witness executed this form beforebeing interviewed. In
addition, witnesses were asked to executewaiver forms before
statements were taken. In some instances,interviewees were represented
by counsel or declined tovolunteer information, instead relying on
earlier sworntestimony or statements.
On November 8, 1993, then Deputy Attorney General PhilipHeymann
responded to renewed objections to the investigativerole of the FBI in
the inquiry. Heymann received the assuranceof the attorneys in charge
of the inquiry that they couldaccommodate interviewees who requested
interviews outside thepresence of the FBI. The attorneys assured these
intervieweesthat the FBI was assisting them in gathering facts but
thatthe final report and its conclusion and recommendations
wouldoriginate from the DOJ attorneys. However, these intervieweeswere
advised that a record of their interviews would be given tothe FBI to
assist its inquiry. In addition, we cautioned allthose interviewed
that the Attorney General might release aversion of our final report
to the public and, therefore, wecould not assure their
confidentiality.
On January 19, 1994, the FBI investigators submittedtheir report of
factual finding to the DOJ attorneys. Followingthe receipt of the FBI
report, the DOJ attorneys completed theirreview of all pertinent
materials and wrote a report analyzingthe many allegations. The
original team of lawyers was assistedby two attorneys from the
Criminal Division who providedadditional research and analysis. In
addition, another OPRattorney assisted in the final stages of the
preparation of this report.
This report was structured to be read in its entirety orin isolated
sections. The Factual Summary, Chronology, and theIdentification of
Participants sections are intended to providea general overview of
significant events, which will assist thereader in understanding the
detailed discussions that follow. Specific topics are generally
arranged in chronological orderand contain detailed discussions of the
relevant facts, theissues raised and the finding made. Finally, we
conclude with asection which sets forth recommendations, most of which
aredesigned to anticipate and avoid the kinds of problems subjectto
this inquiry. An Appendix accompanies this report, butbecause 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 ANDMETHODOLOGY
EMPLOYED
1. The following groups of people were interviewed: 52FBI HRT
members, 60 Marshalls Service Special Operations Grouppersonnel, 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 Ridgecrisis, ten FBI Headquarters
personnel, four FBI negotiators, 43Idaho State Police members, 26
members of other agencies, 31 FBIfield office personnel, 17 FBI
Laboratory personnel, and 30other persons involved with the
prosecution, including personnelfrom 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 © (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.
> Released through
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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, the Weaver family, have been shown by our Savior and King, Yahshua
the Messiah of Saxon Israel, that we are to stay separated on this
mountain and not leave. We will obey our lawgiver and King.
You see, the Mighty One of Heaven knows his people. You are servants
of lawlessness and you enforce lawlessness. You are on the side of the
One World Beastly Government. Repent for the Kingdom (government) of
Yahweh is near at hand. Choose this day whom you will serve. As for me
and my house -- we will serve Yah- Yahshua, the King.
Whether we live or whether we die, we will not obey your lawless
government.[FN152]
According to Bill Grider, Weaver stated that, if he dies, "he is
going home and the kids want to go with him." When Hunt asked Grider
what would happen if he went to Weaver's cabin to arrest him, Grider
responded that Weaver had warned that "if a man enters my property
with a gun to do me harm, you can bet that I'm going to shoot him to
protect myself."[FN153]
Evans interpreted this letter as "some type of possible suicide pact
by the [Weaver] family"154 but cautioned that it was important that
they "not read too much or too little into the letter in its present
context."[FN155] Hunt and Mays, in a Threat Source Profile, opined
that Weaver might be deliberately seeking a confrontation with what he
considered to be a "corrupt and evil government." They referred to
several reports on file at the Boundary County Sheriff's Office that
indicated that Weaver had fired weapons at others because of
trespassing or other alleged property disputes. In addition, the
Profile noted that, "Weaver is armed most of the time . . . Sources
have stated all family members carry side arms and keep other weapons
located in strategic positions in the house and out buildings." The
Profile stated that records indicated that Weaver had purchased four
handguns, six rifles, and two shotguns.[FN156]
Hunt approached the Griders again on March 8 and requested that they
ask Weaver how they could avoid a confrontation. In addition, Hunt
requested the Griders to ask Weaver to allow the children to leave so
that they would not become involved in the dispute. On March 11, Bill
Grider called Hunt and said that Weaver identified conditions that
would have to be fulfilled in order to resolve the controversy. First,
Weaver wanted BATF to admit that they had behaved improperly, that
they had made a mistake and that the government was after him. Second,
Weaver wanted BATF to return the pistol that they had allegedly
"stole" from him at the time of the arrest. Next, Weaver wanted a
written apology from Sheriff Whittaker who had called him "paranoid"
in court. Finally, Weaver told Grider to tell authorities that if his
children could not live in peace on the mountain then they did not
want to live.[FN157]
The last statement troubled Hunt and caused him to wonder if Randy
and Vicki Weaver might use their children as "the first line of
defense."[FN158] Evans concluded that a combination of tactical and
nontactical approaches should be considered to apprehend Weaver. Evans
noted that a tactical approach was viewed as the easiest to accomplish
but that "it also offer[ed] the greatest possibility of innocent
casualties." He suggested several options including attempting
discussions with Weaver by a negotiation team comprised of a Marshals
Service negotiator, Hofmeister and Richins, or using other
intermediaries, such as the parents of Vicki Weaver, through whom to
negotiate with the Weavers. However, in making these suggestions,
Evans noted that there were "strong indications that Weaver now
mistrusts [Hofmeister] and Richins due to conflicting information in
letters received by Weaver." Evans also cautioned that there was "the
probability that Weaver will open fire on any law enforcement officer
or agent or ZOG ("Zionist Organized Government") once they are
identified.[FN159]
According to U.S. Marshal Michael Johnson, sometime during the week
of March 11, Judge Ryan had a conversation with Evans regarding the
apprehension of Weaver. At that time, Judge Ryan reminded Evans and
Johnson that they need to arrest Weaver and "get him in his
courtroom."[FN160]
e. Decision to Present an Indictment to the Grand Jury
U.S. Attorney Ellsworth authorized Howen to present the failure to
appear indictment to the grand jury, with the understanding that if
Weaver appeared for trial on March 20 they "would possibly have to
dismiss the indictment."[FN161] Ellsworth explained that dismissal
would be necessary under those circumstances, "[b]ecause the fact that
he showed up would at least create reasonable doubt in my mind and
possibly in a juror's mind as to whether or not the erroneous letter
had been a basis for him not showing up February 20th, but showing up
on March 20th."[FN162]
Although Howen was unable to recall the specifics of the discussions
in which he participated regarding the impact of the Richins letter,
he did recall that it was their conclusion that Weaver never intended
to appear for trial on February 19 or 20, nor would he appear for
trial on March 20. In reaching this conclusion, they reasoned that
Weaver had been specifically informed a number of times that the trial
date was February 19 and that he had the responsibility of maintaining
contact with the probation officer and his attorney. Despite these
instructions, Weaver failed to comply. Moreover, Howen thought the
Queen of Babylon letters evinced an intent by Weaver to remain
secluded in his home and not appear for trial.[FN163]
The USAO made no efforts to contact Weaver or his counsel to discuss
the Richins letter or Weaver's failure to appear. Howen believed that
such efforts were best left to the Probation Department and the
Marshals Service. Howen thought that they had contacted Hofmeister and
inquired whether he could persuade Weaver to talk to him and
surrender.[FN164] In addition, he recalled hearing that Marshal
Johnson had asked Hummel to write a letter to Weaver explaining the
mistake in the letter.[FN165] Ellsworth had no discussions with the
Probation Department or with the Marshals Service about sending a
letter to Weaver informing him of the error.[FN166]
With regard to the decision to present an indictment to the grand
jury, Howen stated that even when a bench warrant is outstanding for a
failure to appear, it is his policy to obtain an indictment for the
charge because the judge could withdraw the bench warrant. Howen
believed that an indictment and arrest warrant would give him more
control over the matter and protect the agents executing the warrant
from civil liability.[FN167] Although Ellsworth recalled that the
Marshals Service wanted an indictment, he could not remember the
specific reasons for this position.[FN168] However, Ellsworth conceded
that, with the bench warrant, the marshals did not need an indictment
to have jurisdiction over Weaver for his failure to appear.[FN169]
Howen and Ellsworth planned to obtain a sealed indictment from the
grand jury during their session in the second week of March and to
instruct the marshals not to execute the arrest warrant until after
March 20. If Weaver appeared for trial on March 20, both Howen and
Ellsworth were prepared to dismiss the indictment provided Weaver had
a good faith explanation as to why he had not appeared earlier.[FN170]
Howen could not recall why, with the bench warrant outstanding, he
presented the indictment on March 14 instead of waiting until the
April session of the grand jury. He speculated that it could have been
because of a scheduling conflict that he may have had in April
although he reiterated that he was convinced that Weaver had
intentionally failed to appear for trial, a failure unrelated to the
error in the Richins letter.[FN171] Ellsworth acknowledged that they
had discussed waiting until April 1991 to present the indictment but
decided not to wait since they thought the evidence indicated that
Weaver had no intention to appear for trial on March 20.[FN172]
f. March 14, 1991 Indictment for Failure to Appear
[G.J.]
[G.J.] [FN173]
[G.J.]
[G.J.] [FN174]
[FN175]
[FN176]
[G.J.]
[FN177]
3. DISCUSSION
a. Government Knowledge of Erroneous Richins Letter Prior to February 20,
1991
This investigation has found no evidence that anyone in the
government, including the USAO, was aware of the error in the February
7 Richins letter until February 26, 1991, when the news reporter first
contacted the U.S. Probation Office. None of the individuals
questioned indicated or suggested that such knowledge existed prior to
that time. Nor was any other evidence obtained from which such
knowledge could be inferred. Although Howen instructed Byerly to
monitor the courtroom on February 19, it appears that this action was
unrelated to any knowledge by Howen of the Richins letter but rather
was a precautionary measure taken by Howen after receiving indications
that Weaver might not appear for trial. Thus, at the earliest,
government officials learned of the error six days after Judge Ryan
had issued the bench warrant on February 20, 1991. Consequently, we
find no factual basis for the allegation that the existence of the
Richins letter was concealed from the court on February 20, 1991.
b. Appropriateness of Government Response to the Richins Letter
Four governmental agencies were involved in the Richins letter issue:
the federal district court, which issued the bench warrant for Weavers
failure to appear; the federal probation office, which wrote the
erroneous letter; the U.S. Marshals Service, which was responsible for
apprehending Weaver on the bench warrant; and the U.S. Attorney's
Office, which was responsible for prosecuting the firearms charges and
for deciding whether an indictment should be presented for the failure
to appear charge.
After being informed of the mistake in the Richins letter, there was
a flurry of activity by each of these entities. Phone conversations
were initiated, meetings were conducted and memoranda were written.
The evidence indicates that the immediate reaction of almost all
involved was that the letter was significant, although differences of
opinion existed as to the impact of the letter and what, if any,
actions should be taken.
With regard to the role of Judge Ryan, we believe that he took and
unnecessarily rigid view of the impact of the Richins letter. his
initial reaction to the effect of the letter was that it did not
excuse Weaver from appearing for trial. He seemed to base his decision
on two factors. First, Weaver had been explicitly informed several
times of the trial date yet had failed to appear for trial. Second,
defense counsel had made numerous attempts to contact Weaver,
including to inform him of the correct change in the trial date, but
Weaver had failed to respond. Although we agree that these facts
provided sufficient ground upon which to issue the bench warrant for
the failure to appear, we believe that the Richins letter made
necessary a serious reassessment as to whether some corrective action
should have been taken.
We find it was not unreasonable for Weaver to assume that the
Probation Office was a government agency acting on behalf of the court
and authorized to inform him of the trial schedule. It is unrealistic
to expect the average citizen to be versed in the division of
responsibilities within the judicial system. We believe that the
preferable approach would have been for the probation officer to send
a corrected letter or, perhaps to have the court clerk issue a notice
acknowledging the miscommunication and informing Weaver of the correct
trial date.
With regard to the conduct of the Probation Office, it was its
mistake that created this problem. our investigation produced no
evidence that this error was anything but an unintentional mistake by
Richins. Nor did we find any indication that Hummel intentionally
denied to the reporter that the erroneous letter had been sent.
Rather, it is our conclusion that the caution of Hummel to avoid
improperly disclosing confidential information may have caused him to
couch his response in such a manner that the reporter interpreted the
response as a denial.[FN178] However, we have difficulty understanding
why the office did not send a letter to Weaver explaining the mistake.
Although U.S. Marshal Johnson requested Hummel to send such a letter,
Hummel did not honor this request.
The Marshals Service, in our view, was placed in the middle of this
controversy. It immediately recognized the letter as a significant
matter that had a potential impact on the viability of the bench
warrant and contacted the other governmental agencies involved and
attempted to determine how best to proceed. The initial reaction of
Chief Deputy Marshal Evans was to defer execution of the warrant.
Marshal Johnson also wanted the probation officer to send a letter
correcting the mistake. When they consulted with the U.S. Attorney
about how to proceed, Ellsworth advised them that they should withhold
any tactical service of the bench warrant until after March 20, the
trial date erroneously referenced in the Richins letter.
From the evidence presented during the investigation, it appears that
the Marshals Service sought guidance from both the court and the U.S.
Attorney's Office. The reaction of the court was to do nothing to
correct the letter since in its view Weaver was clearly obligated to
appear. The position of the USAO was somewhat inconsistent. On one
hand, it argued that all indications were that Weaver was not going to
appear for trial and that the mistake in the letter had not caused
Weaver to form this intent nor would a correction cause him to appear.
In its view, a corrected letter would not result in Weaver's
appearance. However, on the other hand, the USAO indicated that if it
obtained an indictment before March 20, 1991 and if Weaver appeared on
or before March 20 it either "would" or "possibly would" move to
dismiss the indictment. We think that this somewhat inconsistent
position evinces the realization that the letter might provide an
explanation for Weaver's failure to appear.
It appears that although the USAO was consulted they never took
control of the issue or urged the sending of a letter to Weaver
identifying the error. Such a posture was neither prudent nor
advisable. The justification given for their inaction seemed to be
that they believed that all indications were that Weaver was not going
to appear for trial. They maintained that Weaver had clearly been
instructed about the trial date and his obligation to comply with all
the conditions of his release. Moreover, they argued that Weaver's
counsel, despite numerous attempts, had been unsuccessful in his
efforts to contact his client. In addition, Vicki Weaver, presumably
with Randy Weaver's knowledge and approval, had written and mailed two
letters before the Richins letter was sent which evidenced an intent
not to appear. Furthermore, the Marshals Service investigation
indicated that Weaver had antigovernment views and distrusted the
government. Finally, in response to the marshal's note requesting
surrender, Weaver sent a letter that stated that his family would"not
obey your lawless government."
If these facts had existed without the presence of the Richins
letter, we would concur with the conclusion of the USAO that Weaver
would probably not appear for trial. However, the facts did not exist
in a vacuum. Even Ellsworth recognized the importance of the letter
when he instructed the marshals not to participate in any tactical
attempts to execute the warrant until March 20. If Ellsworth thought
that the letter was without legal effect, this instruction would have
been unnecessary. Similarly, both Ellsworth and Howen recognized that
if an indictment were obtained, it might "possibly" have to be
dismissed if Weaver appeared for trial on or before March 20. Their
recognition that Weaver's possible confusion about the trial date
might lead to a dismissal demonstrates that the Richins letter
warranted a more active response by the government.
Furthermore, the fact that Weaver was known to have an intense
distrust of government might also cause one to conclude that the
letter might have intensified his distrust and contributed to his
reluctance to appear for trial. It is clear from Weaver's comments to
the Griders that he received the Richins letter. These comments, which
were relayed to the marshals, indicated that Weaver was suspicious of
what he viewed as inconsistent messages from the government and his
own counsel, and that this inconsistency enforced his belief that the
government was conspiring against him.
We recognize that we have the benefit of more information than was
available in 1991, and have had greater time to assess how the
government should have responded. However, irrespective of the
advantage of hindsight, we are troubled by the rigidity of the
government's approach and the lack of leadership exhibited by the USAO
on this issue. Although we do not believe that the response of the
government to this letter was illegal or violated Weaver's
constitutional rights, we do not understand the reasons for the USAO
not taking control of this issue and coordinating a unified
governmental response. Indeed, it was incumbent upon the USAO to have
the Probation Office send an appropriate correction and to have
attempted to discuss the matter with the court. Such action would have
taken little effort and would have eliminated any question as to
whether Weaver was confused.
c. Propriety of Seeking an Indictment on March 14, 1991
Despite the existence of an outstanding bench warrant, the USAO
decided to present an indictment to the grand jury charging Weaver
with failure to appear. Howen decided to present the indictment on
March 14, 1991, six days before the erroneous trial date stated in the
Richins letter, because the grand jury only sat once a month. For
reasons previously discussed, the USAO was convinced that Weaver was
not going to appear.
As to why the USAO wanted an indictment, Howen explained that an
indictment gave him more control and protected the marshals executing
the warrant from civil liability if the court were to withdraw the
bench warrant without their knowledge. Howen could not recall what, if
any, reasons existed for not delaying the presentment of the
indictment until the April session of the grand jury. This
investigation found no indication that either the Marshals Service or
the court applied any pressure directly or indirectly to the USAO as
to when or whether to seek an indictment.
We are troubled by the decision of the USAO to seek an indictment
before March 20. Its words and actions demonstrate that it had some
concern, or at lease question, about the impact of the Richins letter
on the failure to appear charge. We are not persuaded by the reasons
that the USAO articulated for seeking the indictment when they did. At
the time that it sought the indictment, a bench warrant was
outstanding. The USAO had never received any indication that the court
would withdraw the warrant. To the contrary, the court was firmly
resolved that the bench warrant was appropriate and should be
executed. Furthermore, if Weaver had been arrested on the bench
warrant, it is certain that he would not have been released. This
would have enabled the USAO to present an indictment to the next grand
jury without there being any concern that Weaver would flee. Seeking
an indictment at the time that the USAO did created an appearance of
governmental overreaching.
d. [G.J.]
[G.J.]
[G.J.]
[G.J]
[G.J.] [FN179]
[G.J.]
[FN180]
[FN181]
[G.J.]
[G.J.]
[FN182]
4. CONCLUSION
There is no evidence that members of the USAO, the federal probation
office and Marshals Service intentionally concealed the erroneous
Richins letter from the court on February 20, 1991. However, we
conclude that the USAO, the probation office and the court should have
appreciated the potential impact of the letter and should have pursued
simple and straight forward steps to remedy the error. The decision to
seek an indictment prior to the March 20 date state in the letter was
unnecessary and created an impression of prosecutorial overreaching.
[G.J.]
Released through
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FOOTNOTES (SECTION IV, PART B)
71 See 26 U.S.C. 5861 (d) and (f).
72 Devane Report, December 17, 1993.
73 Former U.S. Attorney Maurice Ellsworth explained that because of
the distance from Boise to Moscow, his office did not routinely attend
preliminary hearings unless it was a high profile case or there was a
strong indication that the defendant posed a flight risk. Interview of
Maurice Ellsworth, Tape 1, at 40 (hereinafter cited as "Ellsworth
Interview"). Accord, Trial Testimony of Stephen Ayers, April 21, 1993,
at 26-27.
74 Arraignment Transcript in United States v. Weaver, No. 90-
092-N-HLR, on January 18, 1991, at 6 (hereinafter cited as
"Arraignment Transcript").
75 Id. at 10.
76 Id.
77 Id. at 12.
78 Id. at 18.
79 Id. at 15. The Order setting forth the conditions of release
reiterated that the next court appearance was on February 19, 1991 and
that Weaver had to contact Richins on January 22, 1991. Condition 7(g)
required Weaver to "refrain from possessing a firearm, destructive
device, or other dangerous weapon." Order Setting Conditions of
Release in United States v. Weaver, No. 90- 092-N-HLR, January 18,
1991, at 2 (Appendix at 4).
80 Arraignment Transcript, at 16-17.
81 Id. at 17-18.
82 See Trial Testimony of Karl Richins, April 22, 1993, at 27- 30.
83 Id. at 31-32.
84 Hearing Transcript in United States v. Weaver, No. 90-092- N-HLR on
February 20, 1991, at 2-5 (hereinafter cited as "Hearing Transcript").
85 See Notice date February 5, 1991, in United States v. Weaver, No.
90-092-N-HLR (Appendix at 7).
86 See Letter from Karl L. Richins to Randy Weaver, February 7, 1991
(Appendix at 8). There is no indication on the letter that Probation
sent copies to any other party.
87 See Richins Trial Testimony, April 22, 1993, at 32.
88 Id. at 36-37, 39-41.
89 Id. at 38.
90 Hearing Transcript, February 20, 1991, at 2-5.
91 Letter from Vicki Weaver to the "Queen of Babylon", January 22,
1991 (Appendix at 5).
92 Letter from Vicki Weaver to the "Servant of the Queen of Babylon",
February 3, 1991 (Appendix at 6).
93 Ellsworth Interview, Tape 1, at 35-36.
94 Id. at 35. One of the responsibilities of the United States Marshal
Service is to assess the seriousness of threats made against judicial
and law enforcement officials. FD-302 Interview of Ronald D. Evans,
October 21, 1993, at 1.
95 Ronald Evans FD-302, at 1.
96 Sworn Statement of David Hunt, February 5, 1994, at 3; FD- 302
Interview of W. Warren Mays, October 5, 1993, at 2.
97 Mays FD-302, at 2.
98 Hunt Sworn Statement, at 3; Mays FD-302, at 3.
99 Report of Investigation by Mays, February 8, 1991, at 3.
100 Id. at 3.
101 Memo from Evans to Hunt, Cluff and Mays, February 11, 1991, at 1.
102 Hunt Sworn Statement, at 2.
103 Supplemental Memorandum from Ronald Evans to Tony Perez, February
20, 1991, at 2.
104 Letter from Lonnie Ekstrom to Jack Cluff, February 20, 1991.
Ekstrom could not locate Weaver's letter but summarized its contents
in his letter to Cluff.
105 Report of Investigation by Mays, February 8, 1991, at 3.
106 Memo from Evans to Perez, February 20, 1991, at 2.
107 Report of Investigation by Mays, February 8, 1991, at 3.
108 Mays FD-302, at 2; Hunt Sworn Statement, at 5. Memo from Evans to
Hunt, Cluff and Mays, February 11, 1991.
109 Memorandum from Evans to Perez, February 11, 1991, at 2.
110 Mays FD-302, at 2.
111 Hunt Sworn Statement, at 2, 6; Mays FD-302, at 2, 4. Mays stated
that he had been told that Weaver was an explosives expert and former
Green Beret. Weaver claimed to Secret Service investigators in 1985
that he had served three years as a Army Special Forces Green Beret
and that he had been an Army engineer. FD-302 Interview of Randy
Weaver, February 12, 1985. Later, he made similar claims to other
including Jackie Brown, a friend of the Weavers. Weaver told Brown
that he had participated in "drug raids" with the CIA and that he had
been a member of a special group of Green Berets. Weaver professed
that he became disillusioned with the CIA when officials kept the
drugs for themselves. See Sworn Statement of Stephen McGavin, November
19, 1993, at 5.
112 Memo from Evans to Hunt, Cluff, and Mays, February 11, 1991, at 1.
113 Mays FD-302, at 3; Ellsworth Interview, Tape 1, at 53-54.
114 Ellsworth Interview, Tape 1, at 36.
115 Howen Interview, Tape 3, at 19-22. Ellsworth remembers this
conversation but believes it may have occurred after the return of the
March 14, 1991 indictment. Ellsworth Interview, Tape 2, at 1-2.
116 Memo from Evans to Perez, February 20, 1991, at 2.
117 See Byerly Trial Testimony, on April 20, 1993, at 68.
118 See Howen Interview, Tape 2, at 3, 42-43. See also, Byerly Sworn
Statement, at 13. If Weaver had appeared, Byerly was to inform Weaver
that the trial date had been changed and that he should contact his
attorney immediately. Id.
119 Judge Ryan believes that one of his law clerks advised him shortly
before the trial that Weaver would probably not appear. FD-302
Interview of the Honorable Harold Ryan, November 9, 1993, at 1.
120 Hearing Transcript, February 20, 1991, at 2-5. Warren Mays
testified at trial that the local postal inspector told him on
February 21, 1991 that Bill Grider had picked up the mail from the
Weaver box for the previous three weeks. See Mays Trial Testimony,
April 23, 1993, at 111-12.
121 Hearing Transcript, February 20, 1991, at 6-7.
122 Id. at 7.
123 FD-302 Interview of the Honorable Harold Ryan, November 9, 1993,
at 1.
124 Id. at 2.
125 See Memo from T.A. Hummel to File, February 26, 1991 (hereinafter
cited as "Hummel Memo") (Appendix at 9); FD-302 Interview of Terrence
A. Hummel, October 19, 1993, at 2.
126 Hummel discussed the matter with Martin instead of Judge Ryan
because Judge Ryan was travelling back from northern Idaho. See Hummel
Memo, February 26, 1991.
127 Id.
128 See Memo from Evans to Perez, February 27, 1991, at 1 (Appendix at
11).
129 Hummel also discussed the letter with Richins, who was quite
concerned about the error. When Richins asked if there was anything
that he could do to correct the mistake, Hummel told him that he had
handled the matter and had done everything that he could do. See
Richins Trial Testimony, at 46-51.
130 See Hummel Memo, February 26, 1991; Hummel FD-302, November 12,
1993, at 1.
131 See Hummel Memo, February 26, 1991. 132 See Letter from T.A.
Hummel to Everett Hofmeister, February 26, 1991 (Appendix at 10).
133 See Hummel Memo, February 26, 1991.
134 Memo from Evans to Perez, March 12, 1991, at 2.
135 Hummel FD-302, at 1.
136 FD-302 Interview of James L. Martin, October 23, 1991, at 4. See
also, Howen Interview, Tape 2, at 49.
137 See Memo from Evans to Perez, February 27, 1991, at 1 (Appendix at
11) Evans Memo, at 1. Hunt testified at trial that Evans told him that
law clerk Martin had informed him that the bench warrant was still in
effect and that the Marshals Service "would proceed with our duty."
Trial Testimony of David Hunt on May 3, 1993 at 73-75. A Marshals
Service Daily Report dated February 28, 1991, which was an Addendum to
the Enforcement Division Daily Report, provided an update on the
Weaver matter. It stated that "[a] Federal judge in D/Idaho has
ordered the USMS to have Weaver in court for his trial beginning March
11, 1991." This report also referred to preparations by Marshals
Service to arrest Weaver on March 10, 1991 with the support of state
and local police authorities. 138 See Memo from Evans to Perez,
February 27, 1991, at 3; Hunt Trial Testimony, May 5, 1993, at 9-10.
139 Richins Trial Testimony
140 Howen cannot recall when or how he learned of the Richins letter
although he knows it was after Weaver failed to appear on February
20th. See Howen Interview, Tape 2, at 44-45.
141 See Trial Testimony of Maurice Ellsworth, April 22, 1993, at
26-29. See also, Evans FD-302, at 1. Although Ellsworth did not recall
Mays being a participant in this meeting, Mays testified at trial that
he was present. See Mays Trial Testimony, May 5, 1993, at 2-3. On that
same day, Evans and Deputy Marshall Jack Cluff had a telephone
conference call with Ken Keller, the reporter from the Kootenai Valley
Times. Keller told them that someone came into the newspaper office
and stated that Randy Weaver, his wife and children, along with the
Grider children, "are waiting at the Weaver cabin, and are prepared to
make a final stand." Report of Investigation by Evans, February 28,
1991.
142 Ellsworth Trial Testimony, April 22, 1993, at 30; Ellsworth
Interview, Tape 1, at 42-44.
143 FD-302 of Maurice Ellsworth, October 29, 1993, at 2. Evans
described the meeting as follows:
The U.S. Attorney has determined that it is in the best interest of
the Department of Justice to withhold any tactical approach to service
of the warrant on Weaver until after March 20, 1991. The Bench Warrant
will remain in effect. . . .
The U.S. Attorney intends to indict Weaver on 3/12/91 for FTA but
admits he will most probably be forced to dismiss the FTA indictment
prior to any trial. Defense counsel for Weaver has been instructed by
the Chief Judge to 'find your client and surrender him to the U.S.
Magistrate in Northern Idaho'. . . .
Memo from Evans to Perez, February 28, 1991, at 1 (Appendix at 12).
144 See Hunt Trial Testimony, May 3, 1993, at 66.
145 Id. at 66-67.
146 See Mays Trial Testimony, May 5, 1993, at 6-8.
147 A Marshal Service Special Operations Division document dated March
5, 1991 and entitled, "Significant Events," stated that after Evans
spoke with the United States Attorney and the ATF case agent, it was
decided "the district will delay the attempt to [sic] RANDALL C.
WEAVER. . . . Chief Evans advised that WEAVER will be indicted on
March 12, 1991, and arrested after March 20, 1991."
148 Hunt Trial Testimony, May 3, 1993, at 66-67.
149 See Evans Trial Testimony, May 5, 1993, at 63.
150 Law enforcement regarded the Griders as "more radical and
dangerous than Weaver." See Addendum to Enforcement Division Daily
Report, February 28, 1991, at 1. In May 1990, the Raus purchased land
that the IRS had seized as a result of tax liens. Without the
permission of the Raus, the Weavers assisted the Griders in moving
into a cabin on this property. Thereafter, the Raus were forced to
obtain a court order to evict the Griders from the cabin. See Incident
Report of Boundary County Sheriff's Office, June 7, 1990.
151 Report of Investigation by Hunt, March 5, 1991, at 2.
152 Letter from the Weavers to "servant of the Queen of Babylon",
March 5, 1991 (Appendix at 13). Mays prepared an analysis of the
Biblical references in this letter and the earlier ones and concluded
that "Weaver sees the court and USMS personnel as servants of the
Queen of Babylon, those who serve her serve Satan." Report of
Investigation by Mays, March 25, 1991, at 1-2.
153 Report of Investigation by Mays, March 6, 1991, at 2.
154 Memo from Evans to Perez, March 7, 1991, at 1. Michael Weland, a
reporter for the Kootenai Valley Times who interviewed Weaver in May
1992, echoed this view. Weland believed that Vicki Weaver "would
rather die along with her family in their cabin than subject herself
and her family to the law enforcement agencies . .. . [T]hat would
include committing suicide instead of surrendering." FD-302 Interview
of Michael Weland, August 25, 1992, at 2.
155 Memo from Evans to Perez, March 7, 1991, at 1.
156 Threat Source Profile, March 7, 1991, at 3, 7-8, 15.
157 Report of Investigation by Hunt, March 11, 1991, at 1.
158 Memo from Evans to Perez, March 12, 1991, at 2.
159 Id. Vicki Weaver's parents, the Jordisons, visited the Weavers in
April 1991. Afterwards, they reported to Evans that Weaver feared the
government was planning to take his land away because he failed to go
to court "for something he did not do." The Jordisons could offer no
suggestions as to how the matter could be resolved peacefully. Report
of Investigation by Evans, April 24, 1991, at 3-4.
160 FD-302 Interview of Michael Johnson, October 5, 1993, at 3.
161 Ellsworth Trial Testimony, April 22, 1993, at 33.
162 Id. at 34.
163 See Howen Interview, Tape 2, at 46.
164 Id., Tape 3, at 2-4
165 Id. at 3.
166 Ellsworth Interview, Tape 1, at 45. In retrospect, Howen concluded
that perhaps they should have sent Weaver a letter explaining the
error although he remained convinced that Weaver did not intend to
appear. Howen Interview, Tape 3, at 5.
167 Howen Interview, Tape 2, at 47; Tape 3, at 12-13.
168 Ellsworth Interview, Tape 1, at 45-46.
169 Id. at 46.
170 Howen Interview, Tape 2, at 47-48; Tape 3, at 6, 10.
171 Howen Interview, Tape 3, at 6-7. Howen insisted that no one from
the Marshals Service pressured the U.S. Attorney's office to indict
Weaver in March. Id. at 20.
172 According to Ellsworth, while he was U.S. Attorney this was only
the second case in which a bench warrant had been issued for a
defendant failing to appear for trial. In both cases, his office had
sought an indictment charging the failure to appear. Ellsworth
Interview, Tape 1, at 44-45.
173 See [G.J.]
174 See [G.J.]
175 [G.J.]
176 [G.J.]
177 [G.J.]
178 Former U.S. Attorney Ellsworth opined that he did not think that
it was particularly appropriate for a Probation Officer to be talking
with a member of the press under any circumstances. Ellsworth
Interview, Tape 1, at 52.
179 [G.J.]
180 [G.J.]
181 [G.J.]
182 [G.J.]
_________________________________________________________________
_________________________________________________________________
IV. SPECIFIC ISSUES INVESTIGATED
C.EFFORTS BY THE MARSHALS SERVICE TO EFFECT THE ARREST OF WEAVER
1. INTRODUCTION
It has been suggested that the shooting deaths of Marshal Degan and
Sammy Weaver on August 21, 1992 were the result of a scheme by the
Marshals Service to assault the Weaver property, or at the least, the
result of inadequate planning. This inquiry examined the scope of the
Marshals Service investigation between February 1991 and August 1992
and examined the options the marshals considered to effect the arrest
of Weaver.
2. STATEMENT OF FACTS
a. Involvement of the Marshals Service Special Operations Group
On March 18, 1991, Ronald Evans requested the assistance of the
Marshals Service Special Operations Group ("SOG").183] SOG is a
voluntary unit in the Marshals Service specifically trained to handle
dangerous or complex matters, such as hostage situations involving
fugitives.[FN184] Evans compared the Weaver situation to the violence
surrounding the attempted arrest of Gordon Kahl when Evans was Chief
Deputy of the North Dakota District.[FN185] He added that many
days/nights of surveillance would be necessary to determine the
Weavers' daily routine and asked for SOG assistance in determining how
to arrest Weaver "while minimizing risk to all persons involved. . . .
Ultimately, we must find a single weakness which will cause Randy
Weaver to leave the house if only momentarily."[FN186]
On March 23, 1991, Evans briefed SOG Commander John Haynes, Deputy
Commander Louis E. Stagg, and other SOG personnel.[FN187] At that
time, Stagg asked Evans about the pressure he was under to apprehend
Weaver, and Evans replied that a "very senior Judge" was not going to
tolerate delay in capturing Weaver.[FN188] It was tentatively agreed
that an SOG reconnaissance team would travel to Idaho in mid-June to
gather information for a plan to arrest Weaver. Haynes directed that
Stagg lead the mission.[FN189]
SOG also retained the services of Dr. Walter F. Stenning, Ph.D., a
psychologist, to construct a psychological profile of Randy Weaver. Dr
Stenning concluded:
In my best professional judgement, Mr. Randall (sic) would be an
extreme threat to any police officer's attempt to arrest (sic) him.
Further, Mr. Randall (sic) has indoctrated (sic) his family into a
belief system that the end of the world is near and that his family
must fight the fences (sic) for evil that want to take over the world.
I believe his family may fight to the death. If Mr. Randall (sic) is
captured by your force, I feel the remaining members of the family
will use all force necessary including deadly force to regain Mr.
Randall's (sic) freedom. Also, all evidence indicates that the
Randalls' (sic) home and surrounding property is defensively fortified
to repel assault. In summary, my best professional judgement is that
Mr. Randall (sic) and family will resist and have the means to resist
all but a military type assault. Further, even with a military type
assault the family will fight, possibly to the death. It seems most
effective to wait until Mr. Randall (sic) leaves his house and is
alone to make the arrest on the Federal warrant.[FN190]
b. SOG Reconnaissance and Recommendations
Between June 17 and 24, 1991, the SOG reconnaissance team assessed the
Weaver case in Idaho. SOG Deputy Commander Staff was accompanied by
Deputy Marshals Cody Thorpe and Larry Ely. They reviewed the files of
the local marshals and met BATF agents, Forest Service
representatives, the local sheriff, and others. BATF Agents Byerly and
Kelly told them that "Weaver and his entire family will react
violently to any attempt by the USMS to arrest Weaver and that Vicki
Weaver and the children should be considered just as dangerous as
Weaver." Kelly also reported that Weaver had plans to remove himself
and his family to caves in the mountain. [FN191] Byerly speculated
that Weaver might leave the property to attend the upcoming Aryan
World Congress.[FN192]
Sheriff Whittaker told the SOG reconnaissance team that he thought
Weaver feared that the government would take his property through
forfeiture of the bail bond and might kill his family in an assault to
arrest him. In addition, Whittaker also told Staff that Weaver had
threatened his neighbors, the Raus.[FN193] Whittaker, however, did not
"completely share the assessment of other (law enforcement) agencies
that Weaver is completely beyond rational reasoning and will fight to
the death."[FN194]
Stagg briefed Marshal Johnson and U.S. Attorney Ellsworth about his
findings. He recommended against a tactical assault on the Weaver
compound because of possible injury to the marshals and the women and
children. Instead, it was his recommendation that the indictment be
dismissed and then refiled later under seal. Staff also cautioned that
an attack must be forceful to eliminate the risk of Weaver escaping
into the woods, where he would pose more of a threat.[FN195]
Thereafter, Stagg requested an opportunity to present his findings to
Chief Judge Ryan but Ellsworth refused the request.[FN196] Stagg told
Hunt that this "was the worse (sic) situation he had seen in 23
years."[FN197]
The SOG team set forth its findings in a Law Enforcement Operations
Order, which portrayed the situation as exceedingly difficult and
Weaver as "extremely dangerous and suicidal." The team concluded that:
Weaver has been preparing for five months [since his arrest by BATF]
for his war or confrontation with law enforcement and it is very
likely that he has established numerous fortifications and defensive
positions on his property. It is also possible that Weaver has placed
booby traps and/or command detonated explosive devices on routes of
approach or concealment.
The report set forth a proposal to arrest Weaver with "a minimal risk
of loss of life" and "minimum force necessary to effect arrest." The
proposed plan contemplated use of reconnaissance teams to determine
whether Weaver could be arrested away from his residence, wife and
children. If that were not feasible, the team would gather
intelligence necessary to implement a "tactical movement" with armored
vehicles.[FN198]
Following the submission of the report, SOG took no additional action
until Evans again requested SOG's assistance in effecting Weaver's
arrest. On September 25, 1991, Evans wrote:
Patience and negotiations have not been rewarded in the instant
matter. We have communicated with the Weaver family through his
family, friends, and his attorney. We have provided him with
multiple opportunities to surrender to this office, the local
sheriff, or to his court appointed counsel. . . . One option remains
and should be exercised quickly. We still need to verify Weaver's
existence on the property and test his dedication. In testing the
latter, it must be done with a careful balance to limit and minimize
risk to law enforcement, the Weaver family members, and to Randall
Weaver. Without experimentation, we are stymied and without answers.
. . . While time may have initially been on our side, it has now
turned against us. We are within thirty days from being locked out
of the area by climatic factors. If we avoid this opportunity, it
will be May, to June, 1992 before any course of action can be
initiated. I seriously doubt the court will reasonably wait until
1992 for the initial endeavor to serve the warrant.
[FN199]
Evans then asked that a team of SOG members be dispatched to the
Weaver property to contact Randy Weaver. He envisioned their role as
follows:
They will be instructed to arrest Weaver without injury to themselves
or any other person. If they determine that this cannot be
accomplished without life threatening circumstances, they will be
instructed to leave the immediate area without delay. ...[FN200]
On September 28, 1991, a seven man SOG detail was dispatched to
assist in arresting Weaver. However, upon arrival, the team concluded
that "the information upon which the SOG move order was issued was
inaccurate," and the plan to arrest Weaver was cancelled.[FN201]
Thereafter, the team gathered additional information and learned that
Vicki Weaver was pregnant and close to delivery. In addition, the team
reported that Weaver was still on the mountain and that the situation
was as dangerous as before. It also concluded that "it [was] very
likely that any attempt to arrest Weaver at his property will result
in an armed gun battle and subsequent loss of life."[FN202]
On July 9, 1991, Deputy U.S. Marshal Cluff and Everett Hofmeister,
Weaver's appointed counsel, told Rodney Willey, a Weaver associate,
that if Weaver surrendered, the failure to appear charge might be
dismissed.[FN203] They also told Willey that the sentence on the
weapons offense would be minimal because Weaver did not have a
criminal record. On July 10, Willey informed Hofmeister that Weaver
would not surrender because "[his] rights will be violated."[FN204]
In late September 1991, Hunt and Ely interviewed Beverly and Ed
Torrence, who owned land adjacent to the Weaver property. The
Torrences explained that they had encountered the Weavers a few days
earlier when they had gone up to view their property. At that time,
the Torrences drove near the Weaver house and stopped to ask about
some property markers. The Weaver dogs came to their car, followed by
Sammy Weaver, who called to the house. The Torrences then saw Randy
Weaver and "Dennis" looking down on them from a rock
outcropping.[FN205] Each held a rifle or shotgun. Thereafter, the
Torrences were invited into the Weaver cabin where Randy and Vicki
Weaver explained their religious and political views.
Randy Weaver told the Torrences that the Aryans are the true chosen
people of Yahweh and that the Jews are impersonators.[FN206] He
claimed that a federal informant had introduced him to the Aryan
Nations. Weaver also discussed the BATF arrest and that he was
expecting federal agents to come to his home, but that he was not
going to be arrested by anyone. According to Weaver, he and his family
would shoot federal law enforcement officials who came on his
property. "If they do take me, I'll take some with me," and that is
"[w]hy we have the guns." Beverly Torrence observed that Weaver
appeared "vehement in his belief that he would rather fight than go
peaceable (sic)."[FN207]
During this period, the marshals also received information that
Weaver might attend the America's Promise Ministry, a suspected Aryan
Nations church, in Sandpoint, Idaho. The Marshals Service began
surveillance of the church, but Weaver was not seen.[FN208]
d. Exchange of Surrender Terms
On October 9, 1991, Deputy Marshal Mays interviewed Alan Jeppeson,
who had been observed bringing supplies and mail to the Weaver
cabin.[FN209] Mays asked Jeppeson to convey another negotiation offer
to the Weavers. A series of exchanges followed. On October 12, 1991,
Jeppeson gave Mays a letter from the Weavers which stated:
The U.S. Government lied to me - why should I believe anything its
servants have to say . . . . This situation was set up by a lying
government informant whom your lawless courts will honor. Your lawless
One World Beast courts are doomed. I have appealed to Yahweh's court
of Supreme Justice. We will stay here separated from you & your
lawless evil in obedience to Yahshua the Messiah.[FN210]
Jeppeson told Hunt that Weaver did not want to be tried in Idaho "due
to prejudice against those who believed in separation of the white
race."[FN211] According to Jeppeson, Weaver might surrender, if the
trial could be moved and if Jeppeson could remain with Weaver until he
was released or sentenced.[FN212]
Thereafter, the Marshals Service began to formulate a surrender offer.
This offer included promises that: the government would not interfere
with Vicki Weaver's custody of her children; [FN213] the Marshals
Service would not harass Randy Weaver's family; and the Government
would not move to forfeit Randy Weaver's property.[FN214]
The following day, Jeppeson delivered a letter from Vicki Weaver,
addressed to Mays and Hunt, that posed a number of questions,
including:
1. Why a government informant or agent cannot be cross-examined by a
defense attorney?
2. Why did the U.S. Dist. Judge in Coeur D'Alene tell [the Weavers]
that if [they] lost [their] case [they] would lose the $10,000 bond to
pay the attorney?[FN215]
3. Why is there a concerted effort to 'set up' for prison or murder
all ex-green berets (Special Forces). My husband is an ex-green beret.
We know there are those already in prison from 'set ups.' They all
went to court expecting justice from the courts of the country they
loved. They didn't receive any!
(Emphasis in original.) Jeppeson told the marshals that he thought
that Weaver would agree to meet Hunt.
On October 16, 1991, Evans and Hunt gave Jeppeson a letter to give to
Randy Weaver that responded to the questions Vicki Weaver had raised.
Later that same day, Jeppeson gave Hunt a brief response signed by
Vicki Weaver, which declared "[t]here is nothing to discuss. [Randy]
doesn't have to prove he is innocent. Nor refute your slander."[FN216]
e. Post-Negotiation Investigation
In October 1991, Hunt and Evans drafted a letter to Weaver, for
Marshal Johnson's signature, containing proposed surrender terms. They
sent the letter to the USAO for review.[FN217] Assistant U.S. Attorney
Howen rejected the proposal on October 15, 1992 and explained in a
subsequent letter that:
[I] cannot authorize further negotiations or discussions along this
line with defendant or his agent for two reasons. First, since the
defendant is represented by Everett C. Hofmeister, appointed counsel,
all contact with the defendant must be through his lawyer and not by
ex parte means. Department of Justice policy and the Cannons (sic) of
Ethics prohibit direct or indirect contact with a defendant who is
represented by counsel for any negotiation purpose. Second, the . . .
areas of proposed negotiation are either not within my power to grant
or bind the government, to (sic) broad in their scope, or are the type
of matters properly addressed in a plea agreement in exchange for
guilty pleas, but not mere surrender.[FN218]
As a result of Howen's directive, the Marshals Service did not send
the proposed letter.
Following the termination of negotiations, Hunt continued to gather
information. He determined that Weaver had "set an approximate 100
yard perimeter around his house" that gave him "high ground coverage
of 360 degrees." Hunt described Weaver's routine:
Weaver's tactics appear to be that he and [Kevin] Harris will cover
any intruders [on the property] from a distance until they are
identified....In most cases Weaver will send his son or Harris to
investigate a situation while Weaver covers them. Weaver also has a
very aggressive dog that will warn them if someone is
approaching.[FN219]
There was very little activity by the marshals on the Weaver matter
through the winter months because the property was snowed in, and
surveillance was not practical.[FN220] However, they continued to
receive information about who was visiting the Weaver property.
On March 1, 1992, the Spokesman Review, a newspaper in nearby
Spokane, Washington, reported that Weaver's children were armed and
quoted area residents who predicted violence if law enforcement agents
attempted to apprehend Weaver. Allan Jeppeson was quoted as saying,
"They'll lose their lives if they go up there and threaten Weaver" and
"he don't want nobody on his mountain."[FN221]
On March 4, 1992, Cluff and Evans traveled to the Rau house to obtain
an update on Weaver's activities and to check on the status of a
telephone being installed there at the Marshal Service's expense. Once
there, Cluff and Evans decided to drive up the mountain road leading
to the Weaver cabin.[FN222] They were in plain clothes and rode in an
unmarked four-wheel drive vehicle. As they proceeded up the mountain
road, the marshals found that vehicle noise on the unmaintained road
was clearly audible for great distances. When they reached the top of
the road, by the entrance to the Weaver property, they saw signs
reading, "White Power is Supreme" and "Bow Down to Yahweh."
Cluff and Evans then saw Randy Weaver, armed with a rifle, and a boy
and a girl standing above them on a rock formation. The boy also had a
rifle. A yellow dog ran up to the vehicle, barking.[FN223] When Weaver
told them they were trespassing, they responded that they were
interested in buying property. Weaver told them to return with a
realtor. Cluff and Evans left.[FN224]
Thereafter, Evans determined that additional reconnaissance was
necessary. He had learned of previously unknown trails to the Weaver
property and believed it was necessary to explore them.
f. Briefing of the Marshals Service Director
A meeting was held on March 27, 1992 at Marshals Service Headquarters
to brief Acting Director Henry Hudson and other officials, including
Duke Smith, Associate Director for Operations, Tony Perez, Chief of
the Enforcement Division, Inspectors Arthur Roderick and William
Hufnagel of the Enforcement Division, Deputy Marshals John Haynes and
Lou Staff of SOG, and Marshal Johnson.
At the meeting, Haynes and Stagg presented a plan for an assault on
the Weaver compound, but recommended against taking such action.
Hudson agreed that a tactical approach did not appear viable because
of their concern for the safety of Vicki Weaver and her
children.[FN225]
As an alternative, Hudson telephoned U.S. Attorney Ellsworth and asked
him to consider dismissing the warrant against Weaver and reissuing it
under seal. Hudson thought this would relieved the pressure to arrest
Weaver and might cause Weaver to believe it was safe to come off the
mountain. Hudson explained to Ellsworth that Weaver could then be
arrested without launching an assault on the compound and risking
injury to the children and to government personnel.
Ellsworth told Hudson that he thought it would be unethical to
dismiss the indictment and then reindict Weaver in secret.[FN226]
Assistant U.S. Attorney Howen said they could not dismiss the
indictment because Judge Ryan was calling for Weaver's arrest. [FN227]
In response, Hudson offered to travel to Boise to meet Judge Ryan, but
his offer was not accepted.[FN228]
Unable to resolve the matter in this fashion, Hudson ordered that any
plan adopted should avoid potential harm to Vicki Weaver and the
Weaver children. He believed that a "ruse" arrest would be ore likely
to achieve this goal than an "operational" strategy.[FN229]
Thereafter, the Weaver case was transferred to the Enforcement
Division and was given the name "Operation Northern Exposure." The
primary responsibility for developing a plan was given to Deputy
Marshal Arthur Roderick, Branch Chief of the Enforcement
Division.[FN230]
g. Development of Three Phase Operational Plan
After considerable discussion with the Idaho District and
Headquarters, Roderick and Hufnagel devised a three phase plan for
arresting Weaver. Under Phase I, a team of marshals would assess the
feasibility of technical surveillance of the Weaver cabin and
property.[FN231] This would necessitate inspection of the Weaver
property to determine the surveillance equipment that could be
used.[FN232] A team comprised of Roderick, Hufnagel, and Deputy U.S.
Marshals Mark Jurgenson, Ron Libby, and Dave Hunt, was assembled to
carry out Phase I.[FN233]
(1) Phase I
At the beginning of Phase I, Roderick rented a condominium on
Schweitzer Mountain, approximately 25 miles from the Weaver property
which was to serve as a command post. The team also spent several days
conducting surveillance of the Weaver house from the north and west
ridges and looking for sites on which to mount surveillance cameras.
During this process, they observed the Weavers responding to certain
noises by running with rifles to a rock ledge that overlooked the
driveway.[FN234]
On one occasion during Phase I, Roderick nearly had an encounter with
Kevin Harris. While Roderick was in the woods near the north ridge
observation post, he saw Harris ride nearby on a motorcycle and past
the unmarked marshal's truck. When Roderick returned to the truck the
tires on the truck were flat.[FN235]
(2) Phase II
On April 13, 1992, Roderick and Hufnagel briefed Acting Director
Hudson on the results of Phase I of the plan to arrest Weaver.[FN236]
While Hudson was shown photographs of the area, Hufnagel described the
locations of surveillance cameras, which would provide information
about the Weavers' daily routine. Information obtained from the
surveillance cameras during Phase II was expected to assist the
Marshals Service in developing options for Phase III of the plan,
which was the arrest of Weaver.[FN237] In addition, Hudson was
informed that the assistance of five additional marshals was needed
for Phase II.[FN238] Acting Director Hudson approved Phase II on or
about April 13, 1992. The Phase II Plan noted that Kevin Harris was
now living in the Weaver cabin. Harris was described as "an ardent
supporter of Weaver's [who] thinks of [Weaver] as his father."[FN239]
On April 18, the marshals installed surveillance cameras on the west
ridge and, on April 22, they installed the cameras on the north ridge.
Soon thereafter the cameras became operational after a number of
technical problems had to be solved.[FN240] The marshals had to make
several trips to the camera sites, often in darkness, to bring the
heavy batteries needed to power the cameras.[FN241]
During Phase II, the team also made three trips onto the Weaver
property to survey the terrain because little was known about the land
surrounding the Weaver cabin. Each trip began before daybreak and the
marshals used night vision equipment.[FN242] Although aerial
photographs portrayed the land as flat, it was actually heavily wooded
and frequently steep and rugged.
The closest that the marshals got to the cabin was during the third
trip in the first week of May. While it was still dark, Roderick, Hunt
and Libby took the "East Trail," which ended behind the Weaver cabin.
They then passed some water tanks a few yards from the cabin and
worked their way down to the spring house by the lower garden. This
was the first time any marshal had circled the Weaver house and viewed
the surrounding grounds. While they were in the lower garden area,
Libby spotted a small dog, who was "yapping", but who stopped when the
marshals took cover.[FN243]
During this period, Buster Kittel, a private citizen, went to the
mountain to survey property he had recently purchased. To reach his
property, he had to drive past the Weaver cabin. As he reached the
Weaver driveway, Kittel heard a shot from a small caliber gun and saw
Sammy Weaver standing above him with a rifle on a rock outcropping.
Randy then joined Sammy, holding a pistol and a rifle. Weaver asked
Kittel if he was a federal marshal and directed Kittel's girlfriend to
get out of the truck. Weaver told Kittel that he did not believe that
Kittel had bought property and told him to come back with proof. The
next day Kittel returned with some paperwork, which he showed to Vicki
Weaver. The Weavers then allowed Kittel to proceed to his
property.[FN244]
Video tapes produced from the surveillance cameras during Phase II
were sent to Headquarters which had directed the cameras to continue
to be operated. Because the batteries were running low, the marshals
decided to replace them with solar panels, which were installed on May
1 and 2. Kevin Harris apparently heard the marshals working on the
north ridge and was seen looking up at the area. A few days later the
camera on the north ridge stopped transmitting. Upon investigation,
Roderick and two other marshals discovered that the camera equipment
had been stolen.[FN245]
On April 13, 1992, the Marshals Service was informed that a crew from
"Now It Can Be Told," a television program hosted by Geraldo Rivera,
may have been shot at while flying over the Weaver property in a
helicopter.[FN246] Two weeks later, Randy and Vicki Weaver were
interviewed on May 2, 1992 by Michael Weland, a local newspaper
reporter. Vicki said that the mountain had been given to them by
"Yahweh" and that "We will not leave our mountain."[FN247] Weland also
quoted Vicki as saying that her family feared that Randy would "be
railroaded through the court and once he was gone [the government]
would have come it, kicked us off the property and torn this place
apart." Randy Weaver was quoted in the same article as stating that:
"Right now, the only thing they can take away from us is our life.
Even if we die, we win. We'll die believing in Yahweh."[FN248]
(3) Transition to Phase III
After Phase II of the operation had been completed, Roderick and
Hufnagel developed two alternative plans for capturing Weaver, one
"lethal," the other "non-lethal." Both proposals involved teams of
marshals surrounding the cabin and forcing Weaver outside. The plans
differed in that, under the "lethal" plan, the teams would be armed
while under the "non-lethal" plan, they would use rubber bullets and
other passive strategies, such as cutting off the water supply to the
cabin.[FN249]
Acting Director Hudson was briefed on the options for Phase
III.[FN250] Deputy Attorney General George Terwilliger, who happened
to be present at Headquarters, also attended the meeting. When Hudson
asked what the marshals would do if the Weaver children fired at them,
Roderick responded that they would defend themselves. Terwilliger
found this "unacceptable."[FN251] Hudson rejected both the "lethal"
and the "non-lethal" plans out of fear for the children's
safety.[FN252]
Thereafter, Roderick developed an undercover plan to arrest Weaver,
which required two marshals to assume the roles of husband and wife
and to purchase a plot of land north of the Weaver property. To
provide security for the marshals, the land purchase would have
legitimate paperwork. In addition, the undercover marshals would clear
the property to create the impression that they were authentic
purchasers. Five two-man teams would accompany the undercover marshals
to the mountain on each visit and provide cover from the woods.[FN253]
The plan assumed that Weaver would become accustomed to the undercover
marshals, leading to an opportunity to arrest him out of the presence
of the other family members. The marshals believed that it might take
up to a year to secure Weaver's arrest.[FN254]
Although final approval was needed from Acting Director Hudson,
Roderick was given permission by Jim Roach, Deputy Director for
Operations, in late May 1992, to begin preparations for the undercover
operation. Roderick chose Deputy Marshal Mark Jurgensen of the Seattle
office for the undercover role. Roderick, Jurgensen, and Hunt started
assembling documents necessary to carry out the ruse.[FN255]
h. Delay in Implementing the Undercover Operation
Roderick was instructed not to put the undercover plan into effect
while Hudson's confirmation was pending before the U.S. Senate.[FN256]
In early August 1992, Hudson was confirmed Director of the Marshals
Service and gave oral approval of the undercover operation shortly
thereafter.[FN257] Because there had been no surveillance of the
Weaver property since May, Roderick thought it necessary for a team to
visit the site and update their information.[FN258]
3. DISCUSSION
A number of allegations has been raised about the conduct of the
Marshals Service between February 1991 and August 1992. We examine in
this section these allegations.
a. The Initial Response of the Marshals Service to Weaver's Failure to
Appear
Before the failure to appear indictment was returned, Judge Ryan
issued a bench warrant and directed the Marshals Service to arrest
Weaver. Judge Ryan declined to withdraw the warrant when he learned
that the Probation Office had sent Weaver a letter with an incorrect
trial date. After the indictment was returned, Ellsworth rebuffed
Hudson's request to dismiss the indictment and return it under seal.
We appreciate the problem the Marshals Service faced. It could not
ignore the Court's order or the indictment and, thus, had no choice
but to take steps to apprehend Weaver to face the pending charges.
Indeed, Former Director Hudson has explained that the Marshals Service
has no independent role in evaluating charges when it is called upon
to apprehend a fugitive.[FN259] In addition, this investigation has
found that simply leaving Weaver on the mountain, despite its facial
appeal, was not an option available to the Marshals Service once
charges had been instituted.[FN260] Moreover, the marshals had a
legitimate concern that the Weavers were harassing their neighbors,
the Raus. Indeed, by August 1992, it was feared that if Weaver were
allowed to remain at large, there would be an incident in which the
Raus, or other innocent problems, might be harmed.[FN261]
Notwithstanding the need to apprehend Weaver, it appears at initial
glance that the resources the marshals committed to the case were
disproportionate to the relatively insignificant underlying
charge.[FN262] However, at the same time, we recognize that no one,
including Randy Weaver, is entitled to ignore the rule of law. Thus,
all factors considered, we acknowledge that the Marshals Service had
no option but to respond.
Because the Marshals Service had no option but to pursue Weaver's
arrest and because that arrest posed possible injury to law
enforcement and to the Weavers, it was incumbent on other law
enforcement agencies and the court to assist the Marshals Service in
resolving the impasse. As we note below, the Marshals Service received
little practical assistance from the U.S. Attorney's Office which also
hindered communications with the court. We are troubled that no agency
or individual took action in response to the concerns of the Marshals
Service.
b. Considerations by Marshals Service of Alternatives to Secure the Arrest
of Weaver
The Marshals Service employed many different options for securing
Weaver's arrest before settling on a plan in May 1992. The record is
replete with discussions of proposals made by different components of
the Marshals Service. Its approach was extraordinarily cautious.
Common to each strategy the Service considered was a concern for the
safety of the Weaver children and the arresting marshals. For this
reason, a tactical approach, that is, an armed raid on the residence,
was considered unrealistic by Idaho marshals as early as March 1991.
The Special Operations Group reached the same conclusion in June 1991
and again in September 1991 after reviewing a psychological profile of
Weaver and conducting its own investigation in Northern Idaho.[FN263]
In March 1992, Director Hudson ruled out any "tactical" or
"operational" strategy that did not eliminate the possibility of harm
to Vicki Weaver or her children. Hudson even rejected a "non-lethal"
tactical plan, which contemplated the use of rubber bullets, because
it involved an assault on the cabin and, therefore, posed a potential
danger to the children.[FN264]
The problem of "innocent casualties" arose out of a mass of evidence
that Weaver and his family were armed and determined not to submit to
authorities without a fight. For example, BATF informed the marshals
that Weaver had resisted its "ruse" arrest in December 1990, had
attempted to grab a weapon during the arrest, and had declared that he
would not be tricked again. BATF had also reported that Weaver and his
family were armed "at all times" and could present a danger to
arresting officers. Additional information collected by BATF suggested
that Weaver thought the end of the world was approaching and that he
was prepared for a final battle on his property. Weaver's military
record revealed that he may have received demolition training, and the
marshals feared that he had established fortifications and defensive
positions on his property.[FN265] Weaver also had written to the
Boundary County Sheriff that he would not leave his cabin and that law
enforcement agents would have to take him out.[FN266] The "Queen of
Babylon" letter sent to U.S. Attorney Ellsworth had quoted a
"Declaration of War" by a white supremacist who had died in a violent
confrontation with law enforcement officers. Frank Kumnick, the leader
of a local Aryan Nations church and a friend of Randy Weaver, had told
Mays that Weaver spoke of having a violent confrontation with the law
since 1984 and that Vicki and Randy Weaver had "ideas of
martyrdom."[FN267] In addition, there were reports that the Weaver
children were well trained in the use of firearms and would protect
their father if an arrest were attempted on the property.[FN268]
Surveillance showed that the Weavers responded to the noise of
approaching vehicles by running with rifles to a rock ledge.[FN269]
Various intermediaries had reported that Weaver repeatedly said that
he would not leave his property and that he would shoot intruders if
he thought it necessary to protect his family. Finally, the Weavers
signed a letter stating that the Weaver children would not leave the
mountain.[FN270]
This list illustrates the data the Marshals Service had collected and
is by no means exhaustive. We found no countervailing evidence that
Weaver would surrender peacefully. Accordingly, we believe that the
wariness of the Marshals Service was justified.
In addition, we believe that the caution of the Marshals Service also
stemmed from its experience with Gordon Kahl, the head of Posse
Comitatus. When the Marshals Service attempted to arrest Kahl in 1983,
a firefight erupted in which two marshals were killed and Kahl and his
son were wounded.[FN271] Chief Deputy Ron Evans was Chief Deputy of
the North Dakota District when the Kahl incident occurred and compared
the Weaver matter to the Kahl case.[FN272]
In view of the disadvantages attending a "tactical" approach, the
marshals began to explore "non-tactical" alternatives. In March 1991,
Evans discussed sending a negotiator to the Weaver cabin under a
"white flag." However, the approach was abandoned because it was
believed that Weaver would "fire on any law enforcement officer or
agent of [the Zionist Organized Government]."[FN273]
Both the Special Operations Group and Director Hudson asked U.S.
Attorney Ellsworth to dismiss the indictment against Weaver and to
re-issue it under seal to reduce the pressure to arrest Weaver and to
trick him into leaving his property so that he could be arrested
without risk to the children. Ellsworth and Howen refused Hudson's
request.[FN274]
The marshals also pursued information that Weaver might leave his
property to attend a suspected Aryan Nations church. The marshals
began surveillance of the church but Weaver did not appear.[FN275]
Beginning in October 1991, Mays and Evans initiated a series of
communications with Randy Weaver through various intermediaries, such
as the Jeppesons, Griders, and Vicki's parents, the Jordisons. The
marshals and Weaver also exchanged surrender terms. However, Assistant
U.S. Attorney Howen ended these discussions in October 1992, directing
that all communication with Weaver be through his counsel.
The "non-tactical" arrest plan that Director Hudson finally approved
in the Summer of 1992 was passive almost in the extreme. Indeed, the
marshals were willing to wait up to a year for an undercover marshal
to gain Weaver's trust. Under this plan, "cover" teams of marshals
would arrest Weaver only if he could be taken into custody without
harm to his family.[FN276]
We do not believe that the Marshals Service acted precipitously or
unreasonably in developing its plan to arrest Weaver. The Marshals
Service examined many alternatives in devising its course of action.
Some options were foreclosed by other agencies; others were thought to
be too dangerous. The Marshals Service eventually decided to pursue a
non-tactical arrest which posed the least threat of physical violence.
However, the Marshals Service recognized that with any plan that it
considered, a potential risk of violence existed considering Weaver's
threats to resist arrest violently.
c. Pressure Exerted on Marshals Service to Arrest Weaver
This investigation also examined whether the manner in which the
Marshals Service treated the charges against Weaver was affected by
improper, external influences.
(1) The Court
Judge Ryan issued a bench warrant for Weaver's arrest following his
failure to appear for trial. When he learned a week later that
Pretrial Services had sent Weaver a letter bearing an incorrect trial
date, Judge Ryan declined to withdraw the warrant. Judge Ryan, who
characterized Weaver as "just another case," told this investigation
that he was satisfied that Weaver knew of the February 20 trial date.
According to Judge Ryan, it was routine for him to issue a bench
warrant when defendants did not appear for trial.[FN277]
Judge Ryan denies pressuring the Marshals Service to arrest Weaver. He
explained that he already had a full caseload and "was in no hurry to
get Weaver arrested." In fact, Judge Ryan said that he thought scarce
judicial resources were being wasted on the large number of gun cases
brought in federal court and, in particular, he complained about
undercover "sting" cases involving firearms. Judge Ryan recalled a few
casual conversations with Evans about the Weaver case and once spoke
"in jest to Evans [about] when was he going to get his job done," in
reference to executing the Weaver bench warrant. However, he claimed
that he did not urge anybody "to hurry up and get Weaver before the
court."[FN278]
Deputy Marshals Hunt and Evans do not believe that the Court exerted
undue pressure on the Service,[FN279] and we have found little or no
evidence to the contrary.
(2) The Media
The marshals were sensitive to public opinion about the Weaver case.
Several marshals were concerned about the public perception of the
marshals and Weaver in Northern Idaho. In October 1991, Hunt wrote:
Weaver is losing support locally from his friends and associates. They
believe he is becoming very paranoid and suspects everyone is
informing on him. The USMS is receiving growing support in the way
that we have handled this situation. The community seems to be
impressed with the USMS not over reacting and their concerns for the
safety of all involved. An approach of even handiness (sic) and
concern has began (sic) to impress even hard core Aryan types.[FN280]
In March 1992, an article appeared in the Spokesman Review, a
newspaper in nearby Spokane, Washington, marking the one-year
anniversary of the bench warrant. The Chicago Tribune published a
similar article on the same day, which described Weaver as a "folk
hero" holding the Marshals Service at bay.[FN281] According to Evans,
"pressure from USMS headquarters to effect the arrest of Weaver
increased substantially after these two articles."[FN282] He did not
believe, however, that Headquarters compelled the marshals to take
actions that placed the Weavers or the marshals in undue danger, and
this investigation has uncovered no evidence to the contrary.[FN283]
Indeed, this regard for local sentiment does not seem to have had a
significant impact on the marshals' handling of the case. If anything,
it made them more leery of proceeding precipitously.
(3) The U.S. Attorney's Office
The USAO, in particular U.S. Attorney Ellsworth and Assistant U.S.
Attorney Howen, played a large role in shaping the Marshals Service's
approach to arresting Weaver. However, Ellsworth and Howen did little,
if anything, to facilitate the marshals' assignment. To the contrary,
in more than one instance, they made decisions or took actions that
made the marshals' task more difficult.
(i) Halting Negotiations
In October 1991, Mays and Evans began a series of communications with
Weaver through intermediaries and exchanged terms of surrender with
him. Howen directed the marshals to discontinue contact with Weaver
because he was represented by counsel, thus, effectively foreclosing
communication. Although we are not convinced that these negotiations
would have been successful if pursued, we find that Howen's decision
was erroneous and unduly hampered the marshals' efforts.
Howen's statement that contacts with a represented person are
prohibited are accurate but incomplete. For example, Disciplinary Rule
7-104(A)(1) of the ABA Model Code of Professional Responsibility and
its successor, Rule 4.2 of the ABA Model Rules of Professional
Conduct, provide that an attorney shall not communicate with a party
represented by counsel, unless the attorney has the consent of counsel
or is "authorized by law." [FN284] The disciplinary rules have long
recognized exceptions to the general prohibition against contacts with
represented persons such as to determine if the person is in fact
represented by counsel or when counsel has been given prior notice of
the communication and consents.[FN285]
Howen overlooked these exceptions to the general rule and, in effect,
terminated negotiations with Weaver. It was apparent by the Autumn of
1991 that Weaver was not cooperating with his appointed counsel who
nine months earlier had told Judge Ryan that he was unsuccessful in
contacting Weaver.[FN286] Prior to this time Hofmeister had continued
to try to assist the marshals in apprehending Weaver. In July 1991, he
met with them and Rodney Willey, an associate of Weaver, in an effort
to spur negotiations. On July 10, 1991, Hofmeister wrote Weaver and
explained that the firearms charge was relatively minor and that he
thought Weaver had a good defense to the charge. Hofmeister added,
"the 'cause' in which you believe does not justify the damage you do
to yourselves, because the offense Randy is charged with is not much
greater than many traffic offenses.[FN287]
Hofmeister reported to the marshals that soon after sending this
letter he received two letters from Vicki Weaver, in which she state
that they were resolute as it was "Yashua's plan" that they live or
die on the mountain.[FN288] Hofmeister also contacted Richard Butler,
leader of a local Aryan Nations Church, and requested that Butler
write a note to Randy Weaver asking Weaver to come down from the
mountain and face the weapons charge.
[G.J.] [FN289]
Notwithstanding these efforts, Weaver still would not talk to
Hofmeister, and Hofmeister eventually refused to visit Weaver unless
he had an armed escort.[FN290] Weaver even said that he would not
surrender to Hofmeister because "[his] rights will be
violated."[FN291] Despite these clear indications that Weaver did not
want Hofmeister's services, Howen adopted a rigid approach to the
issue and considered Hofmeister to be Weaver's counsel until he was
relieved by the court in September 1992 after Weaver's surrender.
Furthermore, Howen never spoke with Hofmeister about the matter or
explored whether Hofmeister would consent to the contact by the
Marshals Service.[FN292]
Howen was apparently unwilling to explore alternatives that might
have led to discussions with Weaver. For instance, he could have
instructed the marshals to ask Hofmeister's permission to communicate
directly with Weaver. This is not to say that additional exchanges
would have been fruitful.[FN293] However, given the gravity of the
situation, options that might have promoted a dialogue should not have
been disregarded. Howen was aware of the difficulties the Marshals
Service faced in capturing Weaver, but, in the face of this evidence,
her remained hostile to the negotiation option. His rigid response to
the Marshals Service's proposal was deceptively incomplete and
effectively frustrated the Marshals Service's efforts.[FN294]
Finally, Howen's statement that some of the surrender terms proposed
by Hunt and Evans were more appropriate for inclusion in a plea
agreement appears disingenuous. There is no evidence that Howen ever
discussed devising such an agreement with Weaver's attorney or with
anyone else. Indeed, the evidence is to the contrary since Howen told
this investigation that it was not his practice to engage in plea
bargaining.[FN295]
(ii) Other Actions
In June 1991, U.S. Attorney Ellsworth discouraged Deputy Director
Stagg of the Marshals Services SOG from apprising Judge Ryan of the
considerable danger his team faced in arresting Weaver. In March 1992,
Director Hudson asked Ellsworth to consider dismissing the warrant
against Weaver and reissuing it under seal. Hudson explained that the
marshals thought an assault on the Weaver residence would pose
unacceptable risk of injury to the Weaver children and Marshals
Service personnel. Ellsworth and Howen refused to discuss the
indictment, citing Judge Ryan's call for the arrest of Weaver. When
Hudson offered to speak to Judge Ryan, Ellsworth did not respond to
the offer. We are troubled that the prosecutors so lightly dismissed
the offer by the Director of the Marshals Service to speak with Judge
Ryan. Indeed, we question their judgment in rebuffing the Director's
personal effort to break the year-long impasse. Neither Ellsworth nor
Howen advised Judge Ryan of the Marshals Service's concerns. Such
inaction on their part was neither reasonable nor well considered
under the circumstances.
d. Impact of Delay Pending Hudson Confirmation
The plan to apprehend Weaver was delayed for three months pending the
confirmation of Henry Hudson as the Marshals Service Director. The
reconnaissance team expressed frustration over the delay [FN296]
because some believed the delay caused a gap in their surveillance
intelligence.
However, the pending confirmation did not appear to be the only reason
for the August reconnaissance mission. Indeed, Roderick and Cooper
believed that additional surveillance was necessary to find locations
for "cover" teams for the undercover operation.[FN297] The Executive
Operational Plan also suggested that surveillance was necessary to
place cover teams, an essential component of the undercover plan.
Furthermore, Hudson told this inquiry that his approval of the
undercover plan was "contingent on the results of the latest
surveillance," which was the August 1991 trip to the mountain.[FN298]
Consequently, we conclude that the delay occasioned by Hudson's
confirmation did not cause the need for additional surveillance but
rather, at the most, altered the timing of surveillance that would
have been necessary to conduct in any event.
4. CONCLUSION
The Marshals Service is required by statute to execute arrest
warrants. Consequently, once a warrant was issued for Randy Weaver's
arrest, the Marshals Service had no choice but to undertake efforts to
apprehend Weaver. Faced with Weaver's repeated threats to violently
resist arrest, the Marshals Service explored many alternative plans
designed to capture Weaver, but to do so without harming Weaver, his
family or the arresting officers. We believe that the Marshals Service
acted properly and with due caution in pursuing this purpose.
Moreover, we found no evidence that the Marshals Service was pressured
by outside entities or was improperly motivated in its efforts. We
find, however, that the court and the U.S. Attorney's Office did not
appreciate the difficulties facing the Marshals Service, and made no
effort to assist the Marshals Service in devising a peaceful solution
to the problem.
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FOOTNOTES (SECTION IV, PART C)
183 Memo from Ronald Evans to "Duke" Smith, March 18, 1991, at 1.
Evans noted that "[d]uring limited occasions when the children have
come into controlled contact with other children, they have advocated
their parents' doctrine including preparation for the 'Final War'
which will be fought on their mountain." Id. Frank Kumnick reported
that he had heard Weaver speak of violent confrontations with law
enforcement since 1984, that the Weavers had "ideas of martyrdom," and
that the Weaver children were all trained in the use of firearms and
would protect their father. Report of Investigation by Mays, October
16, 1991, at 2.
184 Testimony of Arthur Roderick, Preliminary Hearing, United States
v. Weaver, No. MS-3934, September 10, 1992, at 11-13.
185 Kahl was head of a militant anti-tax group, Posse Comitatus. He
was wanted for a probation violation when U.S. Marshals, along with
local authorities, attempted to arrest him. A firefight erupted in
which two marshals were killed and Kahl and his son were wounded. Kahl
evaded arrest following the shooting, but was later killed in a
confrontation with authorities. A local sheriff was also killed.
"Radical Tax Protester's Legacy Lives," UPI, July 9, 1983; untitled
article by Gordon Hanson, Associated Press, February 14, 1983; FD-302
Interview of Evans, October 21, 1993, at 4. Weaver and Kahl "share[d]
similar commitment to principle . . . [and] raised their children in a
similar fashion. . . ." Memo from Evans to Smith, March 18, 1991, at
1.
186 Evans suggested interrupting the Weavers' water supply. Aerial
photography showed that "Weaver does not have a large storage ability
for water inside the house . . . . At some point he must endeavor [to]
locate the source of the disruption." Id. at 2.
On March 21, 1991, Hunt asked Sheriff Whittaker if the marshals could
get a state court order to remove the children, but decided that such
measures were not feasible and "guaranteed confrontation." Undated
U.S. Marshals Service Summary of Chronology of Events. Hunt suspected
that someone in the Sheriff's Department was leaking information about
the Weaver case. Hunt Sworn Statement, at 8. The inquiry about the
Weaver children may have gotten back to the Weavers. In April 1991,
Randy and Vicki Weaver told Vicki's father, David Jordison, that they
were afraid of being separated from the children by the government.
Report of Investigation by Evans, April 24, 1991, at 3.@
187 FD-302 Interview of John Haynes, October 20, 1993; Memo from
Ronald Evans to Duke Smith and Roger Arechiga, April 1, 1991.
188 Stagg characterized Evans' response as "a standard on which is
used when one is trying to obtain SOG assistance on a priority basis."
FD-302 Interview of Louis E. Stagg, October 21, 1993, at 2.
189 Haynes FD-302, October 20, 1993, at 2.
190 Report of Dr. Walter J. Stenning, May 13, 1991. Dr. Stenning
appears to have relied on information already amassed and did not
conduct an independent investigation.
191 SOG Special Assignment Log, (June 20, 1991 entry). The log details
the daily activities during the trip, but is itself undated. No caves
were discovered on the property following Randy Weaver's surrender in
August 1992.
192 Id. The Congress was scheduled for July 13, 1991 at Hayden Lake,
Idaho. Byerly had information that Weaver's first telephone call
following his arrest on the weapons charge was to Richard Butler of
the Aryan Nations.
193 In Summer 1992, Whittaker instructed his deputies to stay away
from the Weaver property out of concern for their safety. FD- 302
Interview of Whittaker, November 20, 1993, at 4.
194 Marshal Service Activity Report, June 17-24, 1991 (June 21, 1991
entry).
195 Stagg FD-302, at 4-5. The SOG team discussed Evans' proposal for a
clandestine operation to arrest Weaver, in which marshals would pose
as prospective purchasers of real estate adjacent to the Weaver
property. The SOG would arrest Weaver, if he left the house to show
the property. Staff thought it would be impossible for SOG to provide
the necessary cover in mountainous terrain. Notes of SOG meeting on
June 17 & 18, 1991; Stagg FD-302, at 5.
196 Stagg told Ellsworth that if SOG were forced to carry out an
assault and something went wrong, he would say that SOG's actions
"were at the insistence of [U.S. Attorney] Ellsworth's office." Stagg
FD-302, at 5.
197 Hunt Sworn Statement, at 10.
198 USMS/SOG "Law Enforcement Operations Order," June 25, 1991, at 6.
The report recommended that no contact be made with any local law
enforcement prior to commencement of an operation to apprehend Weaver.
No reason was given. However, the marshals were concerned about the
"loyalties" of members of the Sheriff's Department, though Sheriff
Whittaker himself was not suspected. Hunt Sworn Statement, at 8.
Whittaker told this investigation that he operated on a "need to know
basis within his department with respect to information received from
the marshals about the Weaver case. Whittaker FD-302, at 3.
199 Memo from Ronald Evans to Duke Smith and Tony Perez, September 25,
1991, at 2.
200 Id.
201 Report of Investigation, September 29, 1991. The report itself is
not dated, but a Fax cover sheet identifies it as "report of September
29."
202 Report of Investigation, September 29, 1991, at 1, 4-5. Mays
contacted a local hospital and OB-GYN practitioners, who agreed to
notify them if they were contacted by Vicki Weaver. USMS Item Activity
Report, October 9, 1991. Hunt later determined that Randy Weaver would
deliver the baby. Report of Investigation by Hunt, October 22, 1991,
at 1.
203 Willey told them that there were "guns everywhere you looked
inside the [Weaver] cabin" and that the Weavers were sleeping in
shifts and taking turns performing guard duty. Report of Investigation
by Cluff, July 10, 1991, at 2.
204 Id. By letter, dated August 23, 1991, U.S. Marshal Michael L.
Johnson asked Weaver to contact him to resolve the situation. The
postmaster reported that someone picked the letter up on September 4,
1991. Memo from Susan M. Thompson to Dave Hunt, September 5, 1991.
205 The Torrences identified a photograph of Kevin Harris as the
person they believed they heard Weaver call "Dennis." Report of
Investigation by Mays, October 7, 1991; Transcript of Interview of
Beverly and Ed Torrence, September 29, 1991, at 7, 22 (hereinafter
cited as "Torrence Interview). 206 Torrence Interview, at 23.
207 Weaver also said that Terry Kinnison, Sam Strongblood Woholi, and
others were conspiring to kill him so that Kinnison could take his
property. Id. at 26. FD-302 Interview of Beverly Torrence, December
22, 1993.
208 USMS Item Activity Report, October 10, 12 & 13, 1991. Hunt
learned from the FBI that Weaver had only limited involvement with the
Aryan Nations. Report of Investigation by Hunt, October 8, 1991, at 1.
209 Various people were believed to be taking supplies to the Weavers,
including the Griders, the Jeppesons, and Vicki Weaver's parents, the
Jordisons. Report of Investigation by Hunt, October 10, 1991; Report
by Mays, October 12, 1991; Torrence Interview, at 36. 210 This note
was unsigned, but all correspondence (unless otherwise identified) was
in Vicki Weaver's handwriting.
211 In an October 11, 1991 letter to her cousin, Ronald Jordison,
Vicki Weaver wrote, "Race mixing is against the law." FD-302 Interview
of Ronald Jordison, August 27, 1992.
212 Memo from Hunt to Evans, October 12, 1991, at 1; Report of
Investigation by Mays, October 12, 1991, at 3.
213 Evans learned of this concern during a conversation with Vicki
Weaver's father, David Jordison. Jordison told Evans that during a
visit with the Weavers in early April, "Randy and Vicki voiced concern
for becoming separated during the legal process and expressed
commitment to remain together no matter what the Government did. This
commitment was expressed to include the children." Report of
investigation by Evans, April 24, 1991, at 3; Memo from Ronald Evans
to Duke Smith, Tony Perez, John Haynes and Lou Stagg, May 7, 1991, at
2. In July 1991, Hofmeister sent a letter to the Weavers assuring them
that the children would not be taken from Vicki, provided she did not
use violence against anyone. Letter from Everett D. Hofmeister, to Mr.
& Mrs. Randy Weaver, July 10, 1991, at 1.
214 Memo from Hunt to Evans, October 12, 1991. Jordison told Evans
that Randy and Vicki believed that Randy had "signed a bond which
would allow the Government to take his land and he therefore was not
going to leave his property." Report of Investigation by Evans, April
24, 1991, at 2.
215 Magistrate Judge Ayers had explained to Weaver that he would
forfeit the property bond only if he failed to appear for trial.
Arraignment Transcript, January 18, 1991, at 10-11. Weaver's attorney,
Hofmeister, also explained to Weaver that the bond would be forfeited
only if Weaver failed to appear in court. Letter from Everett D.
Hofmeister, Esq. to Mr. & Mrs. Randy Weaver, July 10, 1991, at 1.
216 Around this time, the marshals learned that Weaver believed that
the highest authority in Northern Idaho was the county sheriff and
that federal authorities had no jurisdiction over him. Report of
Investigation by Mays, October 10, 1991, at 2 (Interview with Sam
Strongblood Woholi).
217 Hunt Trial Testimony, May 5, 1993, at 2-9.
218 Letter from Howen to Evans and Hunt, October 17, 1992 (Appendix at
21).
219 Report of Investigation by Hunt, October 22, 1991, at 1-2. Hunt
concluded that Weaver had apparently not set "booby traps."
220 Memo from Evans to Smith, March 18, 1991; FD-302 Interview of
Michael Moriarty, November 18, 1993, at 3.
221 "Feds Have Fugitive 'Under Our Nose'," Spokesman Review (Spokane),
March 1, 1992, at A1. On the same day, an article in the Chicago
Tribune described Weaver as a "folk hero" holding the Marshals Service
at bay. One week later, the story was picked up by the Associated
Press, and articles appeared in the New York Times ("Marshals Know
He's There But Leave Fugitive Alone," New York Times, March 13, 1992,
at A14) and the San Francisco Chronicle ("U.S. Slow to Nab White
Supremacist," San Francisco Chronicle, March 13, 1992). On March 27,
1992, the San Francisco Examiner reprinted the March 8, 1992 Chicago
Tribune article ("Standoff With Police Enters Second Year, San
Francisco Examiner, March 27, 1992).
222 Evans described the decision to drive to the Weaver property as
spontaneous. He said they had no intention of making contact with the
Weavers. Evans Trial Testimony, May 3, 1993, at 35.
223 Ruth Rau told Cluff and Evans that the dog had attacked a boy
walking along a trail and that Randy Weaver had beaten the dog. Report
of Investigation by Evans, March 6, 1992, at 3.
224 Id. at 1-2; Evans Trial Testimony, May 3, 1993, at 50-55.
225 Sworn Statement of William Hufnagel, at 1; FD-302 Interview of
Henry Hudson, November 15, 1993, at 2.
226 FD-302 Interview of Michael Johnson, October 5, 1993, at 4.
227 Howen did not recall speaking with Hudson and said that he was not
aware that Hudson had made such a request. Howen Interview, Tape 3, at
25. Hudson reported that Ellsworth deferred the majority of the
speaking to Howen. Hudson FD-302, at 2.
228 Hudson FD-302, at 2-3.
229 Id. at 2.
230 Id. Hudson said that it was not unusual for Marshals Service
Headquarters to assume jurisdiction over difficult cases.
231 Hufnagel Sworn Statement, at 2; Sworn Statement of Arthur Roderick
(draft), at 5.
232 Executive Operational Plan (Phase I), March 27, 1992, at 1;
Roderick Sworn Statement (draft), at 5-6; Hufnagel Sworn Statement, at
2.
233 Hufnagel Sworn Statement, at 2. The "Executive Operational Plan"
(Phase I), said that Deputy Marshal Frank Norris would conduct a
medical survey for the operational plan. Norris told this
investigation that it was common for a medic to go on an operation in
a remote mountain area. However, Deputy Marshal Ron Libby was sent on
the mission instead of Norris. Sworn Statement of Frank Norris, at 2.
234 The marshals also noticed a marine band radio antenna on the
Weaver cabin. They brought in a radio monitor to determine whether
Weaver was communicating by short wave radio. Report of Investigation
by Roderick, April 2, 1992; Roderick Sworn Statement (draft), at 7-11.
The plan for Phase II contemplated jamming radio communications from
or to the Weaver cabin during the arrest. Executive Operational Plan
(Phase II), April 10, 1992, at 2 (hereinafter cited as "Phase II
Plan"). Terry Kinnison told the Secret Service in 1985 that Weaver had
military radio equipment and possibly a police scanner. See Kinnison
FD-302, January 21, 1985 and February 5, 195.
During Phase I, Roderick and the other marshals looked into rumors
that Weaver had worked for the Central Intelligence Agency while in
Vietnam as a member of the Special Forces. They found these rumors to
be false. Roderick Sworn Statement (draft), at 11.
235 Roderick Trial Testimony, May 10, 1993, at 243-44; Roderick Sworn
Statement (draft), at 10. Roderick thought that foliage made it
impossible for Harris to see them. He also thought it was possible
that the flat tires may have been caused by something in the road he
struck earlier. Id. at 10.
236 Daily Report, April 10, 1992.
237 The cameras, which operated on batteries, would provide
"real-time" recordings of the Weaver residence and would run during
the daylight. Phase II also contemplated the use of pen registers on
the telephones of various Weaver associates. Phase II Plan, at 1;
Report of Investigation by Roderick, April 4, 1992.
238 Six marshals were already on site: Hufnagel, Libby, Hunt, Mays,
Roderick, and Lynda Nafsinger. Phase II Plan, at 7-8.
239 Phase II Plan, at 2.
240 A surveillance post was set up on the Rau property to monitor the
video tapes. The post was manned 24 hours a day. Daily Report, April
20, 1992.
241 Hufnagel Sworn Statement, at 4.
242 During the first trip on April 27, 1992, the marshals reached the
lower garden area below the Weaver compound. They had to leave,
however, when their night vision equipment failed. Roderick Sworn
Statement (draft), at 12. On the second trip on April 22, Roderick and
Libby located a spot of the west ridge close enough to the compound to
see and hear the Weavers talking with Buster Kittel. They also
observed someone named Murphy bringing the Weavers supplies. Id. at
13; Report of Investigation by Hunt, April 22, 1992, at 1.
243 Roderick Sworn Statement (draft), at 14.
244 [G.J.]
245 Report of Investigation by Hunt, May 5, 1992; Hufnagel Sworn
Statement, at 5; Roderick Sworn Statement (draft), at 14-15. Roderick
had feared that something like this might occur and had warned
Marshals Service Headquarters that they were sending the surveillance
team into the area too often. Id. The charred remains of the camera
equipment were found near the Weaver house after Weaver surrendered to
authorities on August 31.
246 On April 14, a film crew told the marshals that they might fly
over the Weaver property. Daily Report, April 14, 1992. An assistant
to the producer of "Now It Can Be Told" said that a helicopter flew
over the cabin on April 18. FD-302 Interview of Richard Weiss,
September 11 & 18, 1992, but said in an August 1992 interview that no
shots had been fired. However, a photographer in the helicopter saw
someone gesture at the helicopter and thought he heard two shots on a
boom microphone. FD-302 Interview of Dave Marlin, September 16, 1992.
Weaver denied that anyone had shot at the helicopter. "Fugitive: No
Surrender," Coeur D'Alene Press, May 3, 1992, at 1. Mays reported
seeing a helicopter near the Weaver property, but did not hear any
shots fired. Report of Investigation by Mays, April 18, 1992, at 1.
247 FD-302 Interview of Michael Weland, August 25, 1992, at 2; Daily
Report, May 4, 1992.
248 "Fugitive: No Surrender," Coeur D'Alene Press, May 3, 1992, at 1.
249 Roderick Sworn Statement (draft), at 17; Hufnagel Sworn Statement,
at 6; Executive Operational Plan (Draft), May 20, 1992.
250 Roderick Sworn Statement (draft), at 16.
251 Sworn Statement of Larry Cooper, March 7, 1994, at 5. FD- 302
Interview of Tony Perez, November 16, 1993, at 6.
252 Roderick Sworn Statement (draft), at 16; Hudson FD-302, at 3.
253 SOG would provide the cover teams because the Enforcement Division
had limited manpower and SOG had the training and equipment for this
kind of mission. Roderick Sworn Statement (draft), at 18.
254 Roderick Sworn Statement (draft), at 17; Hufnagel Sworn
Statement, at 7. Executive Operational Plan, May 27, 1992, at 4.
255 Hunt had information that Weaver had contacts with law enforcement
officers. Jurgensen, therefore, felt it necessary to create a detailed
history for his assumed persona, including a citation for a moving
violation under his assumed name. Sworn statement of Mark Jurgensen,
at 7.
Roderick believed that a member of SOG should participate in the
undercover operation and, therefore, asked Deputy Marshal Larry Cooper
if he would be willing to take part in assessing the undercover
operation. Roderick Sworn Statement (draft), at 18. Cooper had
recently left the Special Operations Group, and he and Roderick had
known each other for many years. Cooper Sworn Statement, at 2-3.
256 Roderick Sworn Statement (draft), at 18. Hudson had decided that
the plan would not go forward until he had been confirmed. Hudson
FD-302, at 4. This decision does not appear to have been based on
operational concerns.
257 Roderick reported that he was in Washington, D.C. with Tony Perez
and ran into the Director. Hudson told Roderick "let's go get 'em."
Roderick Sworn Statement (draft), at 18. On August 13, 1992, Perez
sent Duke Smith a handwritten note: "We're ready to go as of Monday,
August 17, 1992."
258 Roderick Sworn Statement (draft), at 18; Jurgensen Sworn
Statement, at 8-9.
259 Hudson FD-302, at 3. Roderick told this investigation "I did not
believe it was appropriate nor part of my job to pass judgment on the
merits of the [underlying] case." Roderick Sworn Statement (draft), at
5. We find this assessment consistent with the statutory duties
assigned to the Marshal Service. See 28 U.S.C. 566(a) ("It is the
primary role and mission of the United States Marshals Service to . .
. obey, execute, and enforce all orders of the United States District
Courts . . . .") and 566© ("[T]he United States Marshals Service
shall execute all lawful writs, process and orders issued under the
authority of the United States . . . ."). Hudson and his subordinates
asked Ellsworth and Howen about the strength of the charges against
Weaver and were told that the case was good. Hudson FD-302, at 3.
260 Sheriff Bruce Whittaker seemed to prefer this option. He was
quoted as saying, "It's just as bad for [Weaver] sitting up there on
that mountain as if he was sitting in prison somewhere. . . . He's on
his own self-imposed house-arrest up there, and it isn't costing
anybody any money." "Feds Have Fugitive 'Under Our Nose'" Spokesman
Review (Spokane), March 1, 1992, at A1.
261 See Perez FD0392, at 5. See also Note 315, infra.
262 We note that the Idaho District referred the case to the marshals,
in part, because it did not have the financial resources or manpower
to carry out the operation. See Hunt Sworn Statement, at 13.
We have asked the FBI to determine how much the Marshals Service spent
on the Weaver case, but have not yet received the calculation.
263 See Report of Dr. Walter J. Stenning, May 13, 1991.
264 Roderick Sworn Statement (draft), at 16-17; Hudson FD-302, at 3;
Cooper Sworn Statement, at 5. See FD-302 Interview of Tony Perez,
November 16, 1993, at 6-7.
265 Hunt Sworn Statement, at 2, 6; Mays FD-302, October 5, 1993, at 2,
4.
266 Supplemental Memo from Evans to Perez, February 20, 1991, at 2.
267 Report of Investigation by Mays, October 16, 1991, at 2.
268 A reporter for a local newspaper had told Cluff that Randy Weaver
and his wife and children were "waiting at the. cabin, and are
prepared to make a final stand." Report of Investigation by Evans,
February 28, 1991, at 1.
269 Roderick Sworn Statement (draft), at 11.
270 Letter to the "Servants of the Queen of Babylon," March 5, 1991;
Report of Investigation by Hunt, March 6, 1991.
271 Kahl evaded arrest and was killed in a second confrontation. A
local sheriff was also killed in that conflict. "Radical Tax
Protester's Legacy Lives," UPI, July 9, 1983; Untitled article by
Gordon Hanson, Associated Press, February 14, 1983.
272 Memo from Evans to Smith, March 18, 1991, at 1. Evans FD- 302,
October 21, 1993, at 4. As a result of the Kahl case, the Marshals
Service approached investigations of armed individuals motivated by
strong personal belief "in a much more methodical and deliberate
manner." In such cases, "[n]othing could be taken for granted," and
the marshals would not go "charging in" to make an arrest. Perez
FD-302, at 2.
273 Memo by Evans to Perez, March 12, 1991, at 2.
274 FD-302 Interview of Michael Johnson, October 5, 1993, at 4; Hudson
fd-302, at 2-3. The marshals also considered other "non- tactical"
solutions, such as interrupting water and power supplies to the cabin
and abducting Vicki or Sara Weaver, while they were in the "birthing
shed" during their menstrual cycles. Cooper Sworn Statement, at 2-3.
Executive Operational Plan (Draft), May 20, 1992, at 4.
275 USMS Item Activity Report, October 10, 12, & 13, 1991.
276 Evans proposed a comparable plan in June 1991, in which two
undercover marshals would pose as prospective purchasers of real
estate adjacent to the Weaver property. Notes of SOG meeting on June
17 & 18, 1991; Stagg FD-302, October 21, 1993, at 5. SOG concluded
that it would be impossible to provide adequate cover in the
mountainous terrain. Id.
277 FD-302 Interview of Honorable Harold Ryan, November 9, 1993, at 1,
2.
278 Id. at 2-4. Marshal Johnson said that, during the week of March
11, 1001, Judge Ryan reminded [Johnson and Evans] of the need to
arrest Weaver and get him into his courtroom." Johnson FD-302, October
5, 1993, at 3.
Ellsworth and Howen denied requests from the Special Operations Group
and Director Hudson to dismiss the Weaver indictment for failure to
appear, purportedly because Judge Ryan wanted Weaver arrested.
Ellsworth and Howen also rebuked offers by SOG and Hudson to meet with
Judge Ryan to explain why they thought it advisable to dismiss. Judge
Ryan told this investigation that he was never contacted about this
matter. The only conversations he had about Weaver were informal talks
with Evans. Ryan FD-302, at 6.
279 Hunt Sworn Statement, at 13; Evans FD-302, at 2.
280 Report of Investigation by Hunt, October 22, 1991, at 2. Evans
was also concerned that Weaver was attempting to gain support in the
community by having supporters circulate copies of Richins' letter.
Memo from Evans to Perez, February 27, 1991, at 2.
281 One week later, the story was picked up by the Associated Press
and articles appeared in the New York Times (March 12, 1992) and the
San Francisco Chronicle (March 13, 1992). On March 27, 1992, the San
Francisco Examiner ran the Chicago Tribune article.
282 Evans FD-302, at 3.
283 Director Hudson claims that media attention "did not change the
pace of the investigation, but sharpened the concern of the
community." Hudson FD-302, at 2.
284 This limitation includes communications made through third
parties. See ABA Model Rule 8.4(1).
285 The Department of Justice has historically authorized limited
contacts to determine whether a person believes counsel is
representing his or her interests. See Memorandum from Attorney
General Dick Thornburgh, "Communication with Persons Represented By
Counsel", June 9, 1989.
286 Hearing Transcript, February 20, 1991, at 2-6; Ryan FD- 302, at 1.
Hofmeister had sent four letters to Weaver's post office box advising
him of the February 20 trial date and requesting a meeting. Hofmeister
did not receive a reply and the letters were not returned. Hearing
Transcript, at 2-6. Report of Investigation by Cluff, March 5, 1991.
287 Letter from Everett Hofmeister, Esq. to Mr. & Mrs. Randy Weaver,
July 10, 1991, at 2. This letter was found in the Weaver cabin, with
notations, during a search in September 1992.
288 See Report of Investigation by Hunt, September 5, 1992.
289 [G.J.] ; see Report of Investigation by Evans, July 10, 1991, at
1-2.
290 Report of Investigation by Hunt, October 22, 1991, at 5. There is
no indication Hunt communicated this opinion to Howen.
291 Report of Investigation by Cluff, July 10, 1991.
292 Howen Interview, Tape 4, at 18-21.
293 On March 27, 1992, U.S. Marshal Johnson telephoned Alan Jeppeson
and, in apparent disregard of Howen's order, asked Jeppeson to ask
Weaver for conditions under which he would surrender. Jeppeson told
Johnson that Weaver's response was "stay off his mountain." Report of
Johnson, April 1, 1992.
294 To Johnson, it seemed that "every time [the marshals] attempted to
take any type of action, they experienced a conflict with the United
States Attorney." Johnson FD-302, August 17, 1993, at 2.
295 Howen Interview, Tape 2, at 2.
296 Roderick Sworn Statement (draft), at 15, 20.
297 Id. at 23; Cooper Sworn Statement, at 6.
298 Hudson FD-302, at 4.
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