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.

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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 susp