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, aweeklong standoff between white supremacist Randy Weaver andfederal 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 internalreviews of an FBI investigation ever. Attorney General Janet Renoestablished 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 a n 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 Govern ment 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 Fe bruary 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 Arre st 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 Wea vers 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 2 1, 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 Personn el at Ruby Ridge 184 e. Use of the Helicopter . . . . . . . . . . . . . 187 f. Placement of HRT Sniper/Observers in Area Surrounding the Weaver Cab in 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 Const itutionality 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 Hor iuchi'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 Pol icy 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 o n 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 2 99 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 Gr and 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 3 31 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 Discov ery 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 3 94 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 Responsi bilities of the Individual Members 415 (1) The Lead Agency Concept and the Initial Disagreement Re garding the Interviewing of Witnesses in Iowa 415 (2) The Decision to Assign Members of the Marshals Service a nd 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 Age nts 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 Member s 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 Prepar ation 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 M aterials and the October 26, 1993 Court Order 488 3. Discussion . . . . . . . . . . . . . . . . . . . . 491 a. Response of the Government to the Defense Subpoenas for FBI and Mars hals Service Manuals and Personnel Files 456 b. Failure to Disclose Financial Compensation Arrangement with Informan t 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 caseincluding 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 USAOthroughout 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 (c) (1), 1071, 1111, 1114, 3146 (a) (1), 3147, 26 USC 5861 (d), and (f) IV. SPECIFIC ISSUES INVESTIGATED A. Investigation of Weaver by Bureau of Alcohol, Tobacco and Firearms 1. INTRODUCTION The events that led to the death of three persons at Ruby Ridge, Idaho in August 1992 and to the subsequent prosecution of Randall ("Randy") Weaver and Kevin Harris had their origin with an investigation by the Bureau of Alcohol, Tobacco and Firearms ("BATF"). Serious allegations have been made about the role of BATF in the Weaver matter. Included among these allegations are that a BATF informant entrapped Weaver into selling illegal weapons; that a BATF reward system created the incentive for the informant to entrap Weaver; and that BATF and the informant tired to conceal this future compensation arrangement from the defense, the court and the U.S. Attorney's Office.[FN3] It has also been alleged that BATF exaggerated to the U.S. Marshals Service, the U.S. Attorney 's Office, and the court the extent of Weaver's involvement with the Aryan Nations and the Order and that federal law enforcement unconstitutionally targeted Randy Weaver for prosecution because of his religious views.[FN4] 2. STATEMENT OF FACTS a. Early Law Enforcement Contacts with Randy Weaver Randy Weaver first came to the attention of federal law enforcement personnel in 1985 as a result of alleged threats he made against President Reagan, Idaho Governor John Evans, and certain law enforcement officials.[FN5] The U.S. Secret Service investigated the allegations and interviewed Weaver. During this investigation, it was learned that Weaver was frequently visited by Frank Kumnick, who was associated with members of the Aryan Nations, a white-supremacist group.[FN6] Kumnick was described as the "mentor" for Weaver's "far right wing" beliefs. [FN7] Weaver and Kumnick had allegedly spoken of burning churches and had made threats against Catholics and Jews.[FN8] In addition, Weaver had been seen with Richard Butler, leader of a local Aryan Nations Church.[FN9] The Secret Service was also told that Weaver had a cache of weapons, including a number of semi and fully automatic handguns and rifles,[FN10] and that he had access to explosives and to "an unlimited amount of ammunition."[FN11] Weaver had been described as a person with a "paranoid defensive attitude,"[FN12] who had chosen his mountaintop residence "for survivalist purposes."[FN13] One Bonners Ferry resident reported that Weaver had "rigged his driveway with bombs."[FN14] Another person interviewed by the Secret Service stated that Weaver had spoken of the world ending in two years "when my home will be under siege and assaulted."[FN15] Secret Service agents interviewed Weaver on February 12, 1985. At that time, he denied threatening the President, the Governor, or churches. He also denied having any affiliation with the Aryan Nations or its members.[FN16] Weaver said that he had "no time for Aryan Nation's preachers" and that his religious beliefs were "strictly by the bible." He acknowledged knowing Frank Kumnick, but said that Kumnick was associated with the Covenant, Sword and Arm of the Lord. Weaver informed the agents that he had served for three years as an Army Special Forces Green Beret and that he had been an Army engineer.[FN17] He stated that the Bible gave him the right to kill, if necessary, to defend his family,[FN18] but added the federal authorities were welcome on his property "in spite of stories that had circulated about him and his family."[FN19] On February 28, 1985, Randy and Vicki Weaver filed a handwritten affidavit with the Boundary County Clerk claiming that persons around Deep Creek, Idaho were conspiring to endanger the Weaver family and to precipitate an attack on Randy Weaver's life. The affidavit alleged that Weaver's "accusers" had made false statements about his connections with the Aryan Nations and his ownership of illegal weapons and that they had wrongfully alleged that he had threatened the President and the Pope. The Weavers also stated that these falsehoods were designed to provoke the FBI into storming their home. Weaver expressed fear that he would be killed or arrested for assault of a federal officer, if he tried to defend himself, and he gave "legal and official notice that [he] believe[d] [he] may have to defend [him]self and [his] family from physical attack on [his] life."[FN20] In May 1985, Weaver sent a letter to President Reagan claiming that his neighbors had sent the President a threatening letter under Weaver's name. Weaver apologized for their "evil" in involving the President in their efforts to harass Weaver. On the same date, Vicki Weaver sent a letter to the Spokane Field Office of the U.S. Secret Service demanding a written apology from the Secret Service.[FN21] The federal government never filed any charges against Weaver for the alleged threats made against the President, the Governor, or others.[FN22] b. BATF Contact with Weaver Weaver first came to the attention of the BATF in July 1986 during its investigation of a series of bombings in Coer d'Alene, Idaho in which the Aryan Nations was believed to be involved. BATF asked Kenneth Fadeley, a confidential informant, to assist its investigation by obtaining information about people attending an upcoming World Aryan Congress who might be engaged in illegal activities.[FN23] Thereafter, Fadeley portrayed himself as a weapons dealer who catered to motorcycle gangs and, in this role, managed to be introduced to high level members of the Aryan Nations in Northern Idaho.[FN24] In July, 1986, Fadeley attended the World Aryan Congress at Hayden Lake, Idaho. During this assembly, Fadeley was introduced to Weaver, who was at that time of no particular investigative significance to BATF.[FN25] Six months later, in January 1987, Fadeley met with Frank Kumnick, who was suspected of significant firearms trafficking. Fadeley wore a hidden taper recorder to this meeting. Randy Weaver accompanied Kumnick. Fadeley had met with Kumnick more than a dozen times before, and although Weaver's name had been mentioned numerous times, Fadeley had not expected Weaver at this meeting.[FN26] In Weaver's presence, Kumnick, after suggesting that Fadeley was a government informant, held a gun to Fadeley's head and ran an electronic stud finder over Fadeley's body to search for a hidden microphone or recorder. Kumnick did not find the recorder.[FN27] At this meeting, Weaver gave Fadeley no indication that he was predisposed to selling illegal weapons. [FN28] [G.J.] [FN29][G.J.] At the World Aryan Congress in July 1987, Fadeley again met Weaver, who was accompanied by his wife and children. Weaver mentioned to Fadeley that it was a "struggle" to provide for his family. Weaver also declared that he did not trust the leaders of the Aryan Nations and that he did not agree with the actions of Richard Butler, leader of the Aryan Nations.[FN30] After this contact, Fadeley continued to view Weaver simply as one of the many attendees at the World Aryan Congress. c. Sale of Weapons by Weaver to BATF Informant Fadeley and Weaver met again at the July 1989 World Aryan Congress, where Weaver was one of the speakers.[FN31] Fadeley told Weaver that his gun "business [was] busy." In response, Weaver did not offer to sell Fadeley firearms, but he did invite Fadeley to a house he was renting to discuss forming a group to fight the "Zionist Organized Government" a term used by Aryan nations members to refer to the U.S. Government.[FN32] According to Weaver, the proposed group was to include Kumnick and Chuck Holwrth. Holwrth, who had been convicted of an explosives violation an had formed an Aryan Nations splinter group in Montana,[FN33] was of "continuing investigative interest" to the BATF. After learning of Weaver's plan to include Holworth in this group, the BATF began to view Weaver as a possible point of introduction to Holworth.[FN34] On September 8, 1989, at BATF's request, Fadeley telephoned Weaver and arranged to meet him on October 11.[FN35] Fadeley did not record his conversations with Weaver during the October 11 meeting. At the meeting, Weaver asked Fadeley how his business was going. Fadeley replied that he was "extremely busy" and that he had sold all his "product." Weaver explained that he would like to assist Fadeley and that "he was ready to go to work for [him]."[FN36] Fadeley then told Weaver he had a source to whom he dealt guns. Weaver then asked what the most popular items were, and Fadeley described the "street" weapons he thought he could sell, including shotguns. In response, Weaver said that he could supply four or five shotguns per week. Fadeley recalled Weaver representing that he could get any size shotguns that Fadeley wanted. According to Fadeley, Weaver said "just tell me what you want and what size and I'll supply what you want." Weaver added that there would be "no paper," that is, the weapons would not have registration documents.[FN37] As the two men left the meeting, Fadeley walked to Weaver's truck where Weaver showed Fadeley a shotgun and indicated a spot on the barrel where he thought it could be cut. Fadeley pointed to the weapon and said "about here"[FN38] to which Weaver asserted that he could supply weapons like that "all day long."[FN39] Following the meeting, Special Agent Herbert Byerly, Fadeley's BATF contact agent, conducted various records checks on Weaver.[FN40] On October 13, 1989, Fadeley telephoned Weaver from a BATF office and recorded the conversation to confirm his report of the October 11 meeting. During this discussion, Fadeley and Weaver used agreed upon code words and referred to weapons as "chain saws."[FN41] On October 24, 1989, Weaver met with Fadeley, who was wearing a miniature tape recorder and an electronic transmitter. At that time, Weaver gave Fadeley two shotguns, one with a 13 inch barrel, the other with a 12-3/4 inch barrel. Weaver told Fadeley that he had cut the shotgun barrels himself, "[s]itting under a shade tree with a vise and a hacksaw," and added that, "when I get my workshop set up I can do a better job."[FN42] Fadeley paid Weaver $300.00 for the weapons. When Weaver requested an additional $150.00 for the weapons, Fadeley told him that he would give him the additional money at the next purchase.[FN43] Fadeley then proceeded to tell Weaver that "[t]here is money to be had, and it looks like [you] did a real nice job". He then asked Weaver, "You figured four or five a week?" to which Weaver replied, "yeah, or more." Weaver repeated that there would be no paper trail on the weapons.[FN44] Fadeley met Weaver again on November 30, 1989 with the intent of arranging a trip to Montana to meet Holworth. At this time, Weaver announced that he had five additional sawed-off shotguns available for purchase. When Fadeley told him that he had not brought enough money to pay for them, Weaver responded, "just figure on more cash next time." Thereafter, Weaver asked Fadeley if he had "a cover, legit business." In addition, Weaver told Fadeley that he was not able to go to Montana that day, but said that "the next time that I tell you I'll go with ya . . . I'll make sure I'll go with you." Fadeley paid Weaver $100 toward the balance of the previous purchase of two sawed-off shotguns.[FN45] Following this meeting, Byerly instructed Fadeley to have no additional contact with Weaver.[FN46] d. Delay in Obtaining Indictment and BATF Efforts to Enlist Weaver as an Informant On November 24, 1989, Byerly discussed the Weaver gun sale with Assistant U.S. Attorney Tony Hall from the U.S. Attorney's Office in Boise ("USAO"). Hall requested Byerly to submit a criminal violation report to the USAO.[FN47] Five months later, on May 21, 1990, Byerly submitted a case report to the USAO recommending that Weaver be prosecuted for the sale of the sawed-off shotguns.[FN48] One month later, in June 1990, BATF Agents Byerly and Gunderson drove to the Weaver property to speak with Weaver to determine if he might be willing to cooperate in their investigation of Aryan Nations members. They were met by Weaver's daughter, Sara, who had a semi-automatic pistol strapped to her hip, and by his son, Sammy, who carried a large hunting knife. Byerly and Gunderson did not identify themselves and left when they determined that Randy Weaver was not there.[FN49] After leaving the mountain, Byerly and Gunderson noticed Randy Weaver's truck outside a motel in Sandpoint, Idaho and stopped to talk with him. Thereafter, they approached Weaver, identified themselves, showed Weaver a photograph of the sawed-off shotguns he had sold to Fadeley and told him that they had a tape recording of the transaction. Weaver declined their invitation to listen to the tape. Byerly explained to Weaver that the USAO knew of the illegal weapons sale and that Weaver could help himself by providing information to BATF about the illegal activities of Aryan Nations members. He told Weaver that his assistance would be brought to the U.S. Attorney's attention.[FN50] At the end of the conversation, Byerly gave Weaver his telephone number and told him that they would wait for Weaver to come to the BATF office to discuss cooperating with them. Weaver responded that he would not become a "snitch."[FN51] Soon after this contact with Weaver, Assistant U.S. Attorney Howen told Byerly that he planned to present an indictment to the grand jury charging Weaver with firearms violations but that the timing of the indictment would have to be coordinated with the other matters he was handling.[FN52] On December 13, 1990, seven months after BATF referred the case to the USAO, a federal grand jury in the District of Idaho indicted Weaver for manufacturing and possessing an unregistered firearm. e. Arrest and Arraignment of Weaver on Weapons Charges After the issuance of the arrest warrant, BATF conducted an evaluation of Weaver and concluded that it would be too dangerous to the arresting agents and to the Weaver children for BATF to arrest Weaver at his residence.[FN53] Therefore, BATF agents decided to carry out a ruse to arrest Weaver by surprise away from his home. On January 17, 1991, two agents, posing as stranded motorists, stopped a pickup camper on a bridge near the Weaver's residence, raised the hood, and pretended to examine the engine. Byerly, other BATF Agents, and Boundary County Sheriff Whittaker hid in the back of the camper. Shortly thereafter, Randy and Vicki Weaver stopped their truck and approached the camper. The BATF agents then surprised Weaver and placed him under arrest. In the process, Weaver attempted to grab one of the agent's sidearms. Later, Weaver told the arresting agents "nice trick; you'll never do that again."[FN54] After making the arrest, the arresting agents discovered that Weaver had a pistol in his front pants pocket and Vicki Weaver had a revolver in her purse, which she had left in their pickup truck.[FN55] 3. DISCUSSION It has been alleged that BATF singled out Randy Weaver because he shared many of the political and religious beliefs associated with the Aryan Nations, and that BATF entrapped Weaver in order to coerce him to become an informant.[FN56] We found insufficient evidence to support these claims. a. The Decision of BATF to Target Weaver This investigation found no evidence that BATF improperly targeted Weaver because of his religious or political beliefs. Instead, the evidence indicates that BATF became interested in Weaver not because of his personal views but rather because he was acquainted with members of the Aryan Nations, who were suspected of being involved in bombings that had occurred in Northern Idaho. Indeed, BATF, which knew of Weaver's beliefs for more than three years before the sale of the shotguns in October 1989, had taken no action to target Weaver for investigative focus during that period. Byerly told this inquiry that the original purpose in pursuing the transaction with Weaver was not to recruit Weaver as an informant, but rather to determine the degree of his involvement in illicit weapons trafficking by the Aryan Nations.[FN57] We find nothing improper in the BATF plan. We also examined why the government prosecuted Weaver for the alleged gun sale while deciding not to prosecute Frank Kumnick, who had also sold a "short-barrel" shotgun to Fadeley. Byerly told this inquiry that he recommended to the USAO that Kumnick not be charged because an indictment would ruin Fadeley's cover, thus ending his usefulness as an informant.[FN58] Although this may explain why Kumnick was not initially prosecuted it fails to explain why he was not prosecuted after Fadeley's cover was "blown" in March 1990. Notwithstanding the failure to explain why Kumnick was not prosecuted after March 1990, we found no evidence that this difference in treatment was improperly motivated. Byerly told this inquiry that he decided to solicit Weaver's cooperation, rather than Kumnick's, because he believed that Weaver had, or was in a better position to develop, contacts with BATF targets, such as Chuck Holworth and Richard Butler, leader of the Aryan Nation's Church in Northern Idaho. In addition, Byerly came to view Kumnick as a "boastful showoff" who was not involved in "significant firearms trafficking."[FN59] We accept Byerly's reasons for seeking Weaver's cooperation and find nothing improper about his decision to approach Weaver as a possible source of information about illegal acts committed by members of the Aryan Nations. b. Possible Entrapment by the BATF Informant Defense counsel have charged that Weaver "was induced by federal authorities" into selling illegal weapons, that is, the government entrapped Weaver into unlawful conduct.[FN60] To establish the defense of entrapment, it must be shown that the defendant was not predisposed to commit the criminal act.[FN61] A principal factor in determining whether a defendant was entrapped is whether the defendant evidenced reluctant to commit the offense but was overcome by repeated government persuasion.[FN62] The only accounts of Weaver's weapons sales that we have are the recorded conversations between Weaver and informant Fadeley and the statements of Byerly and Fadeley made at trial and to this investigation. We did not have the benefit of any statements from Randy Weaver, who did not testify at trial and who declined our invitation for an interview. Based on the information available to us, there is no evidence that Weaver proposed or was interested in selling weapons before the October 1989 meeting with Fadeley. Although Fadeley had seen Weaver on a number of occasions with a variety of weapons, Weaver apparently had never said that he wanted to sell guns. Nor is there any indication that Fadeley repeatedly proposed that Weaver sell weapons to him and that Weaver had refused. Weaver claimed in a recorded conversation that Fadeley "approached [him] and offered [him] a deal."[FN63] Fadeley later replied that the person who had told Weaver that Fadeley was a federal agent was a "scumbag."[FN64] Fadeley told the Department of Treasury investigators that Weaver's statement was a complete fabrication . . . . I had never approached him or offered him any deal. He made all the overtures. I did not confront him on this [during the meeting]. I felt that if I did, he may take that as a signal that I was an informant or police and I would be in danger.[FN65] However, Fadeley admitted that he had shown Weaver where to cut the shotgun in response to Weaver's saying, "Just tell me what . . . size [shotgun] and I'll supply what you want."[FN66] Unfortunately, this meeting was not tape recorded, nor did Fadeley report to Byerly, his BATF supervisor, that he had given Weaver this guidance.[FN67] We are troubled by the lack of first-hand information about the events immediately before the first weapons sale. Furthermore, the crucial meeting, at which Weaver allegedly raised the idea of selling weapons to Fadeley, was not recorded. The only account of the meeting comes from Fadeley. Although in the recorded November 30 conversation, Weaver expressed additional interest in providing weapons to Fadeley,[FN68] we cannot conclude, on the evidence before us, that Weaver was coerced or unduly enticed into selling weapons to Fadeley. c. Delay in Obtaining Indictment It has been alleged that Weaver's indictment on weapons charges was delayed so as to give BATF an opportunity to "turn" Weaver, that is, to make him a BATF informant. Although BATF was interested in securing Weaver's cooperation, we have found no evidence that the indictment was delayed to help this effort. Byerly apparently waited to press the weapons charge after the October 1989 sale because BATF did not want to expose Fadeley as an informant.[FN69] However, in March 1990, members of the Aryan Nations accused Fadeley of being an informant, effectively ending the covert operation. In early May 1990, Byerly submitted a case report to the U.S. Attorney's Office recommending that Weaver be prosecuted for the sale of the sawed-off shotguns. Byerly approached Weaver to seek his cooperation in June 1990. Assistant U.S. Attorney Howen told Byerly that the weapons charge against Weaver would be presented to a grand jury, but that the case would be handled in line with his other priorities.[FN70] Seven months later, the matter was presented to a grand jury and an indictment was returned in December 1990. This investigation has uncovered nothing that suggests misconduct in the span between the weapons sale in 1989 and the indictment in December 1990. Weaver's indictment was evidently not a high priority of either BATF or the USAO, and there is no evidence that the charge was treated as anything but a routine matter. 4. CONCLUSION It is our conclusion that the investigation which led to Weaver's indictment for the unlawful sale of two sawed-off shotguns, and the decision to indict were proper. We found no evidence that Weaver was unfairly targeted by BATF at the outset or that the delay in indicting him was improper. Although we are troubled by the sequence of events which immediately preceded the sale of the shotguns to the confidential informant, we cannot conclude, based on the evidence before us, that Weaver was coerced or unduly enticed into selling the sawed-off shotguns. > Released through LEXIS COUNSEL CONNECT LEXIS COUNSEL CONNECT is a communications and information service for attorneys. LCC is managed by American Lawyer Media, L.P. FOOTNOTES (SECTION IV, PART A) 3. The controversy that erupted at trial concerning the compensation arrangement between BATF and the informant is discussed in Section IV (O) of this report. 4. See memo by AIIP Daniel J. Wehr to Insps. Roger A. Nisley and Paul E. Mallett, August 24, 1993 (interview with Gerry Spence), at 2-3; Letter from Senator Larry E. Craig to Lloyd Bentsen, Secretary of the Treasury, July 22, 1993; Letter from Senator Larry E. Craig to Janet Reno, Attorney General, July 23, 1993. The Weavers raised a similar issue during the standoff with the FBI in August 1992. Sara Weaver wrote in a statement dated August 30, 1992 that, "Our situation is not over a shotgun but rather our racial and political beliefs." 5. FD-302 Interview of Terry Kinnison, January 21 & 31, 1985. 6. Kinnison FD-302, January 21, 1985. 7. FD-302 Interview of Sam Strongblood Woholi, January 31, 1985. 8. Kinnison FD-302, January 28, 1985; [G.J.] Boundary County Sheriff Bruce Whattaker has been quoted as saying that Weaver told him that "the real Jews of the Bible are we white Christians and ... the false Jews... should be eliminated." "Standoff with Police Enters Second Year," San Francisco Examiner, March 27, 1992. 9. Report of Investigation by Terry R. Driskill, March 1, 1985; [G.J.] 10. Woholi described Randy Weaver's wife Vicki, as a "crack shot who always has a weapon available." Woholi added that Weaver's son, Sammy, handled a weapon well and normally carried a .22 rifle. Anyone approaching the Weaver residence would thus "have three weapons brought to bear on them, Weaver's, his wife's, and his sons's." Woholi FD-302, February 5, 1985. 11. Terry Kinnison provided the FBI with a list of weapons he had observed while visiting the Weaver home: two .22 caliber revolvers; three .22 rifles; a semi-automatic .45 caliber handgun; a .357 handgun; one or two .30-06 rifles; a Riger Mini-14; a .223 caliber rifle; a pump-action shotgun with a factory shortened barrel; and a Heckler Koch .223 caliber semi-automatic with a tripod and adapter for full automatic functioning. Kinnison reported that Weaver had thousands of rounds of ammunition. Kinnison FD-302, January 21, 1985. 12. Kinnison FD-302, February 5, 1985. See Transcript of conversation of Randy Weaver, Kenneth Fadeley and Frank Kummick January 20, 1987, at 36 ("You know the Bible says don't trust no man.") 13. FD-302 Interview with John Fritz, January 18, 1985. Fritz had heard that Weaver had automatic weapons and a night scope and that he "likes the high ground." 14. FD-302 Interview of Kermit Black, January 18, 1985. 15. Wolholi FD-302, February 5, 1985. In a 1983 newspaper interview, Weaver discussed his plan to move to Northern Idaho to live in an isolated hideaway "and survive the coming 'Great Tribulation,'" Waterloo Courier, January 9, 1983, B-1. 16. This claim would later be contradicted. See Report of Investigation by W. Warren Mays (interview of Chris Colgrave), March 5, 1991, at 1 ("Colgrave stated that Weaver claimed membership in the Aryan Nation"); Report of Investigation by W. Warren Mays (interview with Susan Thompson), March 5, 1991 at 1. In 1990, Weaver gave Boundary County Sheriff Bruce Whittaker literature supporting the Aryan Nation's views. Report of Investigation by David Hunt and W. Warren Mays, March 7, 1991, at 4. The Postmaster for Naples, Idaho confirmed that Weaver had received "Aryan Nation... as well as other white supremacist, anti-goverment type literature" at his post office box. Report of Investigation by W. Warren Mays, March 5, 1991. 17. It was subsequently learned that this assertion was false. Weaver's military "DD-214" shows that he may have received some demolition training in an Army engineering unit, but that he was neither a Green Beret nor a member of the Special Forces. Sworn Statement of David Hunt, February 14, 1994, at 2, 6; FD-302 Interview of W. Warren Mays, October 5, 1993, at 2, 4. 18. Letter from Patrick F. Sullivan, Assistant Special Agent in Charge, U.S. Secret Service (Seattle) to Chris Nelson, Special Agent in Charge, BATF (Seattle), August 28, 1992, at 2. 19. FD-302 Interview of Randy Weaver, February 12, 1985, at 2. 20. Affidavit of Randy and Vicki Weaver, February 23, 1985. 21. See Letter from Patrick F. Sullivan, to Chris Nelson, August 28, 1992, at 2. 22. Terry Kinnison, the neighbor who reported the threats to the Bounday County Sheriff's Office, later notified the sheriff that Weaver had fired shots at him. Memorandum by Ronald Evans to Tony Perez, February 20, 1991. Report of Investigation by W. Warren Mays, Feburary 21, 1991, at 2. 23. Sworn Statement of Herbert G. Byerly, December 20, 1993, at 1-2; [G-J] 24. Fadely obtained information against a number of Aryan Nations members regarding the Couer d'Alene bombings, including David R. Dorr, Chief of Security for the upcoming Congress. Dorr and several others were later arrested and charged with the bombings. Byerly Sworn Statement, at 1-2. 25. Id. at 2. 26. Testimony of Herbert G. Byerly in United States v. Weaver, No. CR-92-080-N-EJL, April 21, 1993, at 8-9 (hereinafter cited as "Trial Testimony"). 27. Transcript of Conversation Between Fadeley, Weaver and Kimnick on January 20, 1987, at 4-6. See Byerly Sworn Statement, at 2. 28. Trial Testimony of Kennth Fadeley, April 20, 1993. 29. [G.J.] 30. Fadeley Trial Testimony, April 20, 1993, at 60-69. 31. In the interim, Weaver had run unsuccessfully in the Republican primary for sheriff of Bounday County. During his campaign, he promised to enforce only those laws the people wanted, and he distributed cards that said "get out of jail free." Weaver lost the primary, 384 votes to 102. "Survivalist Refuses to Come in From Cold," The Oregonian, October 1, 1991, C8; Feds Have Fugitive 'Under Out Nose'," Spokesman Review (Spokane), March 1, 1992, A19. 32. Fadeley Trial Testimony, April 20, 1993, at 45, 82-90. 33. ID. at 103, 112. 34. Byerly Sworn Statement, December 20, 1993, at 3-4. 35. Fadeley Trial Testimony, April 20, 1993, at 100-02. 36. Report by Byerly of Interview of Kenneth Fadeley, February 20, 1990, at 1. See Fadeley Trial Testimony, April 20, 1993, at 103, 112. [G. J.] 37. Report by Byerly of Interview of Kennth Fadeley, February 8, 1990, at 1 (herinafter cited as "Byerly Report"). Weaver later repeated this final statement in a recorded conversation. Transcript of Conversation Between Fadeley and Weaver, October 29, 1989, at 12. Fadeley told Weaver "the smaller [the weapon] the better." Weaver asked, "You mean 12 to 14 inches," to which Fadeley replied, "Yeah." Byerly Report, Feburary 8, 1990, at 1. 38. Fadeley Trial Testimony, April 20, 1992, at 105. 39. Byerly Report, February 8, 1990, at 1. According to Byerly, Fadeley said that Weaver showed Fadeley a shotgun and said he could cut the barrel off to about two inches in front of the slide. Byerly's report does not mention Fadeley's showing Weaver where to cut the barrel. Byerly told this investigation that he did not know "who may have instructed Weaver as to how to saw off the shotguns." Byerly Sworn Statement, December 20, 1993, at 6. 40. Byerly Trial Testimony, April 20, 1992, at 27. 41. [G.J.] Transcript of Conversation Between Fadeley and Weaver, October 13, 1989, at 2. 42. Transcript of Conversation Between Fadeley and Weaver, October 24, 1989, at 3, 6. The stocks on both weapons had also been cut. Section 5681 of Title 26 of the United State Code criminalizes that possession of unregistered firearms and the alteration of firearms by anyone not in the business of manufacturing firearms. Section 5845 (a) explains that the term "firearms" includes shotguns with barrels of less that 18 inches. 43. Byerly Report, February 28, 1990, at 2; Byerly Trial Testimony, April 20, 1993, at 32-34; Transcript of Conversation Between Fadeley and Weaver, October 24, 1989, at 4. 44 Id. at 6. Fadeley had originally planned to go with Weaver to Montana that day, however, because BATF was unable to arrange security, the trip was postponed. Id. at 6-13; Fadeley Trial Testimony, at 135. 45 Transcript of Conversation Between Fadeley and Weaver, November 30, 1989, at 6-12, 24, 31. Weaver explained that someone in Spokane had told him that Fadeley was "bad," meaning that Fadeley was a policeman. Weaver claimed, "You approached me and offered me a deal." Fadeley responded, "This scumbag . . . He's lying through his teeth cause I'm not a badge." Id. at 22. Later, Fadeley told Weaver "if you want to believe somebody else . . . it's been nice doing business with you, have a nice life." Weaver said that he would be less suspicious of Fadeley if their two families could meet, adding, "That's all I care about, is my family." Id. at 13, 15, 21-23. 46 Byerly Trial Testimony, April 20, 1992, at 46. 47 Statements of Byerly, January 14 & February 28, 1990. Byerly continued to obtain background information on Weaver. In about March 1990, Byerly met with Weaver's neighbors, the Raus, who complained that the Weavers had fired weapons at their property. Byerly Sworn Statement, December 20, 1993, at 8. 48 The report included a letter from Patrick Sullivan, a Special Agent in the Secret Service's Seattle Office, summarizing the 1985 Weaver investigation. This letter contained the only reference to Weaver's affiliation with the Aryan Nations in the case report. 49 Byerly Sworn Statement, December 20, 1993, at 8-9. 50 Byerly observed that Weaver was wearing an Aryan Nations belt buckle and jacket emblem. Id. at 10-11. 51 Id. at 10. Vicki Weaver described this encounter in a letter, dated June 12, 1990, addressed to the "Aryan Nations & all our brethren of the Anglo Saxon Race." She wrote: We cannot make deals with the enemy. This is a war against the sons of Isaac. Yahweh our Yashua is our Savior and King . . . . If we are not free to obey the laws of Yahweh, we may as well be dead! Let Yah-Yashua's perfect will be done. If its our time, we'll go home. If it is not we will praise his Separated name! 52 Id. at 10; Transcript of Interview of Ronald Howen, November 22-23, 1993, Tape 2, at 41 (hereinafter cited as "Howen Interview"). 53 Report of Investigation by Cluff (interview of Byerly), February 20, 1991, at 6; Memo from Evans to Perez, February 20, 1991, at 2. 54 Memo by Evans to Hunt, Cluff, and Mays, February 11, 1991; Byerly Sworn Statement, December 20, 1993, at 12. 55 See Pretrial Services Report, United States v. Randall C. Weaver, January 18, 1991. Sheriff Whittaker said that Vicki Weaver was not charged with carrying a concealed weapon because "that law is rarely enforced in the Boundary County area, because of peoples proclivity to wear or carry weapons. . . ." FD-302 Interview of Bruce Whittaker, November 20, 1993, at 3. 56 See Memo by AIIP Daniel J. Wehr to Insps. Roger A. Nisley and Paul E. Mallett, August 24, 1993 (interview with Gerry Spence), at 2-3. 57 Byerly Sworn Statement, December 20, 1993, at 6. 58 Byerly spoke about this with Assistant U.S. Attorney Hall. Byerly Trial Testimony, April 21, 1993, at 31-33. He later told the Department of Treasury that he had misspoken at trial and that he had discussed the issue of Kumnick's prosecution with Assistant U.S. Attorney Howen. Report by Donald Devane, Investigator, U.S. Treasury OIG, of Interview of Byerly, December 17, 1993 (hereinafter cited as "Devane Report"). 59 Byerly Sworn Statement, December 20, 1993, at 26-27. 60 Memorandum in Support of Defendants' Motions, January 6, 1993, at 2 (hereinafter cited as "Defendants' Memorandum"). 61 See Hampton v. United States, 425 U.S. 484, 488 (1976). 62 United States v. Busby, 780 F.2d 804, 805 (9th Cir. 1986). 63 Transcript of Conversation Between Fadeley and Weaver, November 30, 1989, at 22. 64 Id. 65 Affidavit of Kenneth Fadeley, December 7, 1993, at 4. 66 Fadeley Trial Testimony, April 20, 1993, at 105; Report by Byerly of Interview of Kenneth Fadeley, February 28, 1990, at 1. 67 See Byerly Report, February 8, 1990, at 1; Byerly Sworn Statement, December 20, 1993, at 6. 68 Weaver evidently knew that the transaction with Fadeley was illegal, since he asked Fadeley if he had "a cover, a legit business." See Transcript of Conversation Between Fadeley and Weaver, November 30, 1989, at 6-12, 24, 31. 69 Byerly has also asserted that during this period he was working on other cases that required attention. Devane Report, January 14, 1994. 70 Howen Interview, Tape 1, at 13, Tape 2, at 41. _________________________________________________________________ Released through LEXIS COUNSEL CONNECT LEXIS COUNSEL CONNECT is a communications and information service for attorneys. LCC is managed by American Lawyer Media,L.P. _________________________________________________________________ IV. SPECIFIC ISSUES INVESTIGATED B. THE FAILURE OF WEAVER TO APPEAR FOR TRIAL 1. INTRODUCTION On January 18, 1991, Randy Weaver was arraigned on the charges that he made an possessed illegal firearms. At that time, the court set February 19, 1991, as the trial date. Several weeks later the court clerk sent a notice to the parties informing them that the trial date had been changed from February 19 to February 20. Two days later, U.S. Probation Officer Karl Richins sent a letter to Weaver in which he erroneously referred to the trial date as March 20, 1991. When Weaver did not appear in court on February 20, the court issued a bench warrant for his arrest. Almost a month later, on March 14, 1991, when the bench warrant was still outstanding, a federal grand jury returned an indictment against Weaver charging him with failure to appear for trial. A number of issues have been raised with regard to the conduct of the government in handling this stage of the Weaver matter. These issues include: whether government officials, particularly the U.S. Attorney's Office, knew about the erroneous Richins letter before the court issued the February 20 bench warrant; whether the government responded appropriately to the issues created by the Richins letter; whether the U.S. Attorney's Office erred in presenting the indictment to the grand jury before March 20; [G.J.] 2. STATEMENT OF FACTS a. January 18, 1991 Arraignment On December 13, 1990, a federal grand jury indicted Randy Weaver for making and possessing illegal firearms.[FN71] BATF Agent Herbert Byerly arrested Weaver on January 17, 1991 and transported him to Coeur D'Alene, Idaho for arraignment. On January 18, Byerly informed Assistant U.S. Attorney Howen that Weaver had been arrested, that Weaver had resisted arrest, that Weaver had said when arrested, "nice trick; you'll never do that again" and that Weaver appeared to be associated with the Aryan Nation. Byerly also provided background information on the case and recommended to Howen that Weaver be detained because Byerly did not believe that he would appear for trial. According to Byerly, Howen responded that it would be difficult to detain Weaver and did not offer to oppose the release of Weaver.[FN72] Weaver appeared in court for his arraignment the following day before U.S. Magistrate Judge Stephen Ayers. No one was present for the government at the arraignment nor was Weaver represented by counsel.[FN73] Before releasing Weaver, Judge Ayers instructed him that he was required to report on a regular basis to Karl Richins, the Pretrial Service Officer, in Boise and that his first contact was to be on January 22.[FN77] Later, Judge Ayers, in order to avoid any misunderstanding, added Richins' name and phone number to the order setting forth the release conditions.[FN78] Judge Ayers told Weaver that it would be a criminal offense if he failed to appear. Weaver said that he understood the penalties for violating the release conditions and that he agreed to abide by those conditions. Thereafter, he signed and received a copy of the release conditions.[FN79] Weaver also signed a bond and the court explained that the bond could be executed if he failed to appear for trial.[FN80] Before terminating the proceeding, Judge Ayers had Weaver confirm that his mailing address was Box 103 in Naples, Idaho.[FN81] b. Events Occurring From the Arraignment Through February 20, 1991 (1) Communications With Weaver On January 22, 1991, four days after the arraignment, Judge Ayers sent a letter to Everett Hofmeister informing him that he had been appointed defense counsel for Weaver, that Weaver could be contacted at "PO Box 103, Naples, Idaho 83847" and that the trial date was set for February 19, 1991. A copy of this letter was sent to Weaver. On that same day, Weaver telephoned Karl Richins, the U.S. Probation Officer, and informed Richins that he had been ordered to call Richins on that date. Richins told Weaver that he had not received the paperwork on his case and, thus, could not advise him about the release conditions. Richins asked Weaver to leave his name and phone number so that Richins could call him when he received the case file. According to Richins, Weaver never gave him a phone number where he could be contacted nor could Richins recall what understanding the parties had as to how Richins would contact Weaver in the future.[FN82] After this conversation, Richins never heard from Weaver again.[FN83] On January 19, 1991, defense counsel Hofmeister sent a letter to the two addresses he had for Weaver, requesting Weaver to contact him. Hofmeister sent similar letters to Weaver at these addresses on January 31 and February 5. Around February 5, Hofmeister contacted individuals who knew Weaver and requested that they instruct Weaver to contact Hofmeister immediately.[FN84] Meanwhile, in early February, the court learned that the Weaver trial, which had been scheduled for February 19, would have to be changed to give the participants sufficient travel time following a federal holiday on the preceding Monday. On February 5, the court clerk sent a notice to the parties informing them that the trial was rescheduled for February 20, 1991. Although this notice was not sent directly to Weaver, a copy was sent to and received by Hofmeister.[FN85] Two days later, on February 7, 1991, probation officer Richins sent a letter to Weaver at his Naples address. Richins wrote: On January 18, 1991, you were released on Pretrial Supervision pending your trial set for March 20, 1991. You contacted our office and I advised you we would be getting back with you as soon as we received the paper work from Magistrate Ayers. I have long ago received the paperwork but have been unable to locate a telephone number where I could contact you. Accordingly, with this letter, I are [sic] requesting you to contact me at 334- 1630 as soon as possible. You may call collect if you choose.[FN86] (Emphasis added.) According to Richins, he wrote the letter because he needed to establish pretrial supervision of Weaver and had not heard from Weaver since their January 22 phone conversation.[FN87] The only explanation that Richins could provide for the erroneous trial date was that it was a typographical error. At trial, Richins expressed regret for the error and testified that he had placed the date in the letter as part of his effort to get Weaver to contact him. [FN88] Weaver never responded to Richins' letter.[FN89] On February 8, 1991, after receiving the February 6 court notice, Hofmeister wrote another letter urging Weaver to contact him and informing Weaver that the trial date had been changed to February 20. Four days later, having still not heard from Weaver, Hofmeister placed numerous unanswered calls to a telephone number at which Weaver reportedly received messages. In addition, Hofmeister asked individuals who had contact with Weaver to ask Weaver to contact Hofmeister immediately. However, as of the morning of February 20, Weaver had not contacted Hofmeister. [FN90] (2) The "Queen of Babylon" Letters and the Threat Assessment by the U.S. Marshals Service On February 7, 1991, the U.S. Attorney's Office in Boise received two letters signed by Vicki Weaver. The first letter was dated January 22, 1991 -- the same day that Weaver called Richins - and was addressed to "The Queen of Babylon." It stated in part: A man cannot have two masters. Yahweh Yahshua Messiah, the anointed One of Saxon Israel is our law giver and our King. We will obey Him and no others. . . . 'a long forgotten wind is starting to blow. Do you hear the approaching thunder? It is that of the awakened Saxon. War is upon the land. The tyrants blood will flow.'[FN91] The last quote was credited to "Mathews." The second letter, dated February 3, 1991, was addressed to "Servant of the Queen of Babylon, Maurice O. Ellsworth, U.S. Attny [sic]" and stated in part: Yah-Yahshua the Messiah of Saxon Israel is our Advocate and our Judge. The stink of your lawless government has reached Heaven, the abode of Yahweh our Yahshua. Whether we live or whether we die, we will not bow to your evil commandments.[FN92] Ellsworth did not associate the name Vicki Weaver with any matter pending in his office.[FN93] However, because the language of the letters appeared somewhat threatening, he requested the U.S. Marshals Service in Boise ("USMS") to conduct a threat assessment of the letters.[FN94] Deputy U.S. Marshal Warren Mays was assigned to perform the threat assessment.[FN95] After checking with state and local agencies, Mays determined that Vicki Weaver was the wife of Randy Weaver.[FN96] Once this connection was made, Chief Deputy U.S. Marshal Ronald Evans convened a staff meeting, to determine how to proceed with the threat assessment. It was decided that Deputy U.S. Marshal David Hunt would be assigned to assist Mays in the inquiry.[FN97] Thereafter, Hunt and Mays began to gather information to enable them to prepare a "Threat Source Profile" of Weaver.[FN98] Mays first reviewed the bail report prepared for Weaver which revealed that Weaver had admitted membership in the "Aryan Nations/Church of Jesus Christ Christian," had attended three Aryan World Congresses and had been wearing and Aryan Nations belt buckle at the time of the arrest.[FN99] In addition, Mays analyzed the language in the two letters written by Vicki Weaver and concluded that the letters contained "rhetoric commonly associated with the Aryan Nations/Church of Jesus Christ Christian."[FN100] Evans characterized defense counsel Hofmeister as "a noted [Aryan Nations] attorney."[FN101] Based on this information, Mays initially concluded that the two letters from Vicki Weaver contained veiled but not overt threats.[FN102] Mays next asked Senior Deputy U.S. Marshall Jack Cluff, the resident officer in Moscow, Idaho, about the pending firearms charge against Weaver. Cluff suggested that Mays contact BATF Agent Byerly. Cluff also told Mays that he had learned from Lonnie Ekstrom, a deputy in the Boundary County Sheriff's Office, that Weaver had sent a letter to that office stating that he would not leave his cabin and that law enforcement officers would have to take him out.[FN103] Ekstrom recalled that in the letter the Weavers voiced, "sentiments which indicated that [they] felt as though the end is near and [that] the Federal Agents are watching very closely."[FN104] Cluff told Mays that Byerly had described Weaver as being "extremely uncooperative at the time of his booking" and believed that Weaver "planned not to appear for future court proceedings." [FN105] Byerly also reported to Cluff that Weaver: is very adamant and very convinced in his own mind of his religious beliefs in that the government is posing a threat to him. He is very anti-government. He believes that this charge by the federal government against him is the beginning of Armageddon. The religious war is about to begin. The end of the world is coming and he is ready to make his stand in the final battle. I would urge utmost caution and care in his arrest. I believe his children are going to be armed. If the situation is such that they were present during his apprehension, I believe that they should definitely be considered to be a threat to the arresting officers.[FN106] Mays next spoke with Special Supervisory Agent Michael Kelly who reported that the entire Weaver family, including the 12 and 14 year old children, were armed "at all times." Kelly told Mays that a BATF informant had indicated that the Weaver children slept with weapons in their beds.[FN107] Neither Kelly nor anyone else in BATF advised either Hunt or Mays that BATF had attempted to solicit Weaver to work as an informant. Indeed, it was not until over a year later that the marshals learned of this action.[FN108] As their investigation continued, Mays was briefed by the U.S. Secret Service on its investigation of Weaver for alleged threats he had made against President Reagan and the Governor of Idaho in 1985.[FN109] In addition, Mays and Hunt interviewed people in the community who might have further background information on Weaver.[FN110] Hunt and Mays also reviewed a copy of the military record "DD-214" for Weaver. Although the record did not indicate that Weaver had been a Green Beret or a member of the Special Forces, they speculated that Weaver may have received some general demolition training based on an indication in the record that Weaver had training as a "combat engineer."[FN111] On February 11, 1991, Mays forwarded the materials that he had gathered on Weaver to the Marshals Service Threat Analysis Division.[FN112] Around this time, Mays briefed Ellsworth on their findings. Mays told Ellsworth that they did not believe that he was personally at risk and that they doubted that Weaver would appear for trial.[FN113] When Ellsworth learned that Vicki Weaver was the wife of Randy Weaver, he discussed the matter with Assistant U.S. Attorney Howen, who had been assigned to the Weaver prosecution.[FN114] Ellsworth showed Howen the January 22 letter from Vicki Weaver. Howen identified "the long forgotten wind" passage as not being from the biblical book of Matthew but rather from the "Declaration of War" written by Robert Mathews, the founder of "The Order," a white supremacist group.[FN115] Soon after he wrote the Declaration, Mathews was killed during a standoff with the FBI at a house on Whidbey Island, Washington. Shortly after Howen relayed this information to Ellsworth, Chief Deputy Marshal Evans reported to Tony Perez, the Chief of Enforcement Operations at Marshals Service Headquarters, that sources within BATF had stated that Weaver had the potential to be "another Bob Mathews and his homestead another Whidbey Island standoff."[FN116] c. February 20, 1991 - The Rescheduled Trial Date Although the USAO continued preparing the Weaver case for trial, members of that office were beginning to doubt that Weaver would appear for trial. Sometime before February 20, defense counsel Hofmeister told Assistant U.S. Attorney Howen that he had been unable to contact Weaver. Based on this information, the two letters sent by Vicki Weaver and the information developed during the threat assessment, Howen concluded that Weaver would not appear for trial. Despite the indications that Weaver would not appear for trial, Howen told Byerly that they needed to continue preparing for trial. As a cautionary measure, Howen instructed Byerly to be in court on February 19, the original trial date, in case Weaver appeared.[FN117] Byerly was present in court on February 19, but Weaver did not appear. Howen insisted that he had no knowledge of the Richins letter at the time or when he appeared in court the following day.[FN118] On February 20, Howen and defense counsel Hofmeister appeared before U.S. District Court Judge Harold L. Ryan. At that time, Hofmeister told the court that he had been unable to contact Weaver.[FN119} Hofmeister then detailed the efforts that he had taken to communicate with Weaver. In addition, Hofmeister said that on the weekend before trial his answering service had received no calls from Weaver and that none of the letters he had sent to Weaver -- all of which had been sent by regular mail -- had been returned.[FN120] Howen told the court that it was his understanding that Weaver had not kept in contact with Pretrial Services as required. He requested that a bench warrant be issued for Weaver's arrest, that his bond be revoked, and that he be taken into custody.[FN121] Judge Ryan, after determining that the presence specialist had no information about whether Weaver had contacted pretrial services, ordered that a bench warrant be issued for Weaver because he had failed to appear for trial.[FN122] According to Judge Ryan, it was routine practice for him to issue a bench warrant whenever a defendant failed to appear for trial.[FN123] At that time the Weaver matter had no notoriety and was "just another case" to him.[FN124] d. Discovery of the Richins Letter and the Response of the Government On February 26, 1991, Ken Keller, a reporter from the Kootenai Valley Times in Bonners Ferry, Idaho, telephoned the U.S. Probation Office and asked Duty Officer Manning whether Weaver had not appeared for trial on February 20 because Richins had sent a letter to him stating that the trial date was March 20. Thereafter, Manning apprised Terrence Hummel, the Chief Probation Officer, of the inquiry. When Hummel retrieved the Richins letter, he discovered that it did, indeed, erroneously refer to the trial date as being on March 20.[FN125] Hummel promptly contacted Jim Martin, Judge Ryan's law clerk, and told him of the error in the Richins letter.[FN126] Thereafter, they contacted Chief Deputy Marshal Ronald Evans and notified him of the mistake. Evans told them that the Marshals Service "did not intend to execute the warrant until possibly March 16" and would agree to defer execution until March 23.[FN127] Martin told Hummel that he would inform Judge Ryan of the mistake and determine if he wanted to withdraw the bench warrant.[FN128] In addition to notifying the court and the Marshals Service, Hummel also informed U.S. Attorney Ellsworth of the Richins letter and sent him a copy.[FN129] During that conversation, Hummel suggested that Ellsworth not present the failure to appear charge to the grand jury until April. He characterized Ellsworth as being noncommittal regarding this proposal.[FN130] Later that day, Hummel telephoned Hofmeister and informed him of the Richins letter.[FN131] In a confirming letter to Hofmeister, Hummel stated that he had notified Judge Ryan and the USAO of the error and that he had recommended that the warrant not be executed until after March 20.[FN132] Following these discussions, Hummel returned the initial call from reporter Keller. In a memorandum to the file, Hummel wrote that he told Keller that he did not know if Weaver had received the Richins letter and that he had not indicated "one way or another whether or not Mr. Richins had, in fact, sent that letter."[FN133] On February 28, Keller wrote in an article that Hummel had disclaimed knowledge of the Richins letter.[FN134] Hummel insisted to investigators that he never denied the existence of the letter but explained that he was cautious about his statements because of the constraints imposed by the Bail Reform Act regarding the pretrial disclosure of information.[FN135] When Judge Ryan returned to his chambers on February 27, Martin briefed him about the Richins letter. Judge Ryan believed that the arrest warrant should not be withdrawn since Hofmeister had been informed of the change and had attempted to tell Weaver.[FN136] Thereafter, Martin informed Evans that Judge Ryan did not wish to withdraw the bench warrant. According to Evans, Martin stated that Judge Ryan made this decision after reasoning that Weaver had been told that the trial date was February 19 and that Richins was without authority to change the trial date. Martin also told Evans that Judge Ryan wanted the Marshals Service to bring Weaver before him during the week of March 11, since after that time he would be unable to hear the case until late May 1991. [FN137] Sometime around February 27, Michael Johnson, the U.S. Marshal for the District of Idaho, asked Hummel to send another letter to Weaver informing him of the trial date error and the bench warrant and asking him to contact the pretrial services officer immediately.[FN138] However, Richins testified that no steps were ever taken to inform Weaver of the mistakes in the letter. On February 28, Evens met with Ellsworth, Howen and Mays to discuss the failure of Weaver to appear for trial, the Richins letter[FN140] and the possibility of presenting an indictment to the grand jury.[FN141] According to Ellsworth, Evans was concerned about the impact of the Richins letter and questioned Ellsworth about how the Marshals Service should proceed. After this discussion, Ellsworth replied, "let's go ahead and return the failure to appear indictment. And if Mr. Weaver appears on March the 20th, we may to [sic] have to dismiss it."[FN142] Ellsworth advised Evans that Weaver was obligated to appear on February 20 since his counsel had received the court notice with the proper date.[FN143] Hunt testified at trial that the Richins letter created "a potential here for some reasonable misunderstanding."[FN144] Hunt explained that if Weaver had appeared on March 20, they had contemplated that dismissal of the indictment was possible.[FN145] According to Mays, in light of the Richins letter, the position of the Marshal Service was that the bench warrant and the indictment "would be dropped" if Weaver appeared on March 20. [FN146] Because of the Richins letter, the Marshals Service decided to wait until after March 20 to effect the warrant.[FN147] In the interim, the Marshals Service continued to gather information about Weaver, in part to determine if contact could be made with him. [FN148] On March 4, Hofmeister informed Evans that despite numerous phone calls and letters, Weaver still had not contacted him.[FN149] Since Weaver was not communicating with his own counsel, the marshals concluded that a friend of the Weavers might be more successful in conveying a message to them. The marshals identified Bill and Judy Grider as candidates for this role. The Griders lived in a cabin near the Weavers and were known to share philosophical views similar to those held by the Weavers.[FN150] On March 5, Hunt and Mays met with the Griders and informed them that they had an arrest warrant for Weaver. Bill Grider told the marshals that Weaver believed that he was being persecuted and would be treated unfairly if he submitted to the system. At that point, Judy Grider stated that Weaver had received a letter from the court telling him that he did not have to appear until March 20. The marshals asked the Griders to inform Weaver that they did not want a confrontation and that he should surrender to authorities. The Griders agreed to convey the message and to report Weaver's response.[FN151] Hunt and Mays met with the Griders the next day. At that time, Bill Grider gave the marshals a letter from Weaver, which he said contained Weaver's response to the surrender request. The letter, dated March 5, 1991, was addressed to the "Servants of the Queen of Babylon" and was signed by all five Weavers -- Randy, Vicki, Sara, Samuel and Rachel. It stated in part: We, the Weaver family, have been shown by our Savior and King, Yahshua the Messiah of Saxon Israel, that we are to stay separated on this mountain and not leave. We will obey our lawgiver and King. You see, the Mighty One of Heaven knows his people. You are servants of lawlessness and you enforce lawlessness. You are on the side of the One World Beastly Government. Repent for the Kingdom (government) of Yahweh is near at hand. Choose this day whom you will serve. As for me and my house -- we will serve Yah- Yahshua, the King. Whether we live or whether we die, we will not obey your lawless government.[FN152] According to Bill Grider, Weaver stated that, if he dies, "he is going home and the kids want to go with him." When Hunt asked Grider what would happen if he went to Weaver's cabin to arrest him, Grider responded that Weaver had warned that "if a man enters my property with a gun to do me harm, you can bet that I'm going to shoot him to protect myself."[FN153] Evans interpreted this letter as "some type of possible suicide pact by the [Weaver] family"154 but cautioned that it was important that they "not read too much or too little into the letter in its present context."[FN155] Hunt and Mays, in a Threat Source Profile, opined that Weaver might be deliberately seeking a confrontation with what he considered to be a "corrupt and evil government." They referred to several reports on file at the Boundary County Sheriff's Office that indicated that Weaver had fired weapons at others because of trespassing or other alleged property disputes. In addition, the Profile noted that, "Weaver is armed most of the time . . . Sources have stated all family members carry side arms and keep other weapons located in strategic positions in the house and out buildings." The Profile stated that records indicated that Weaver had purchased four handguns, six rifles, and two shotguns.[FN156] Hunt approached the Griders again on March 8 and requested that they ask Weaver how they could avoid a confrontation. In addition, Hunt requested the Griders to ask Weaver to allow the children to leave so that they would not become involved in the dispute. On March 11, Bill Grider called Hunt and said that Weaver identified conditions that would have to be fulfilled in order to resolve the controversy. First, Weaver wanted BATF to admit that they had behaved improperly, that they had made a mistake and that the government was after him. Second, Weaver wanted BATF to return the pistol that they had allegedly "stole" from him at the time of the arrest. Next, Weaver wanted a written apology from Sheriff Whittaker who had called him "paranoid" in court. Finally, Weaver told Grider to tell authorities that if his children could not live in peace on the mountain then they did not want to live.[FN157] The last statement troubled Hunt and caused him to wonder if Randy and Vicki Weaver might use their children as "the first line of defense."[FN158] Evans concluded that a combination of tactical and nontactical approaches should be considered to apprehend Weaver. Evans noted that a tactical approach was viewed as the easiest to accomplish but that "it also offer[ed] the greatest possibility of innocent casualties." He suggested several options including attempting discussions with Weaver by a negotiation team comprised of a Marshals Service negotiator, Hofmeister and Richins, or using other intermediaries, such as the parents of Vicki Weaver, through whom to negotiate with the Weavers. However, in making these suggestions, Evans noted that there were "strong indications that Weaver now mistrusts [Hofmeister] and Richins due to conflicting information in letters received by Weaver." Evans also cautioned that there was "the probability that Weaver will open fire on any law enforcement officer or agent or ZOG ("Zionist Organized Government") once they are identified.[FN159] According to U.S. Marshal Michael Johnson, sometime during the week of March 11, Judge Ryan had a conversation with Evans regarding the apprehension of Weaver. At that time, Judge Ryan reminded Evans and Johnson that they need to arrest Weaver and "get him in his courtroom."[FN160] e. Decision to Present an Indictment to the Grand Jury U.S. Attorney Ellsworth authorized Howen to present the failure to appear indictment to the grand jury, with the understanding that if Weaver appeared for trial on March 20 they "would possibly have to dismiss the indictment."[FN161] Ellsworth explained that dismissal would be necessary under those circumstances, "[b]ecause the fact that he showed up would at least create reasonable doubt in my mind and possibly in a juror's mind as to whether or not the erroneous letter had been a basis for him not showing up February 20th, but showing up on March 20th."[FN162] Although Howen was unable to recall the specifics of the discussions in which he participated regarding the impact of the Richins letter, he did recall that it was their conclusion that Weaver never intended to appear for trial on February 19 or 20, nor would he appear for trial on March 20. In reaching this conclusion, they reasoned that Weaver had been specifically informed a number of times that the trial date was February 19 and that he had the responsibility of maintaining contact with the probation officer and his attorney. Despite these instructions, Weaver failed to comply. Moreover, Howen thought the Queen of Babylon letters evinced an intent by Weaver to remain secluded in his home and not appear for trial.[FN163] The USAO made no efforts to contact Weaver or his counsel to discuss the Richins letter or Weaver's failure to appear. Howen believed that such efforts were best left to the Probation Department and the Marshals Service. Howen thought that they had contacted Hofmeister and inquired whether he could persuade Weaver to talk to him and surrender.[FN164] In addition, he recalled hearing that Marshal Johnson had asked Hummel to write a letter to Weaver explaining the mistake in the letter.[FN165] Ellsworth had no discussions with the Probation Department or with the Marshals Service about sending a letter to Weaver informing him of the error.[FN166] With regard to the decision to present an indictment to the grand jury, Howen stated that even when a bench warrant is outstanding for a failure to appear, it is his policy to obtain an indictment for the charge because the judge could withdraw the bench warrant. Howen believed that an indictment and arrest warrant would give him more control over the matter and protect the agents executing the warrant from civil liability.[FN167] Although Ellsworth recalled that the Marshals Service wanted an indictment, he could not remember the specific reasons for this position.[FN168] However, Ellsworth conceded that, with the bench warrant, the marshals did not need an indictment to have jurisdiction over Weaver for his failure to appear.[FN169] Howen and Ellsworth planned to obtain a sealed indictment from the grand jury during their session in the second week of March and to instruct the marshals not to execute the arrest warrant until after March 20. If Weaver appeared for trial on March 20, both Howen and Ellsworth were prepared to dismiss the indictment provided Weaver had a good faith explanation as to why he had not appeared earlier.[FN170] Howen could not recall why, with the bench warrant outstanding, he presented the indictment on March 14 instead of waiting until the April session of the grand jury. He speculated that it could have been because of a scheduling conflict that he may have had in April although he reiterated that he was convinced that Weaver had intentionally failed to appear for trial, a failure unrelated to the error in the Richins letter.[FN171] Ellsworth acknowledged that they had discussed waiting until April 1991 to present the indictment but decided not to wait since they thought the evidence indicated that Weaver had no intention to appear for trial on March 20.[FN172] f. March 14, 1991 Indictment for Failure to Appear [G.J.] [G.J.] [FN173] [G.J.] [G.J.] [FN174] [FN175] [FN176] [G.J.] [FN177] 3. DISCUSSION a. Government Knowledge of Erroneous Richins Letter Prior to February 20, 1991 This investigation has found no evidence that anyone in the government, including the USAO, was aware of the error in the February 7 Richins letter until February 26, 1991, when the news reporter first contacted the U.S. Probation Office. None of the individuals questioned indicated or suggested that such knowledge existed prior to that time. Nor was any other evidence obtained from which such knowledge could be inferred. Although Howen instructed Byerly to monitor the courtroom on February 19, it appears that this action was unrelated to any knowledge by Howen of the Richins letter but rather was a precautionary measure taken by Howen after receiving indications that Weaver might not appear for trial. Thus, at the earliest, government officials learned of the error six days after Judge Ryan had issued the bench warrant on February 20, 1991. Consequently, we find no factual basis for the allegation that the existence of the Richins letter was concealed from the court on February 20, 1991. b. Appropriateness of Government Response to the Richins Letter Four governmental agencies were involved in the Richins letter issue: the federal district court, which issued the bench warrant for Weavers failure to appear; the federal probation office, which wrote the erroneous letter; the U.S. Marshals Service, which was responsible for apprehending Weaver on the bench warrant; and the U.S. Attorney's Office, which was responsible for prosecuting the firearms charges and for deciding whether an indictment should be presented for the failure to appear charge. After being informed of the mistake in the Richins letter, there was a flurry of activity by each of these entities. Phone conversations were initiated, meetings were conducted and memoranda were written. The evidence indicates that the immediate reaction of almost all involved was that the letter was significant, although differences of opinion existed as to the impact of the letter and what, if any, actions should be taken. With regard to the role of Judge Ryan, we believe that he took and unnecessarily rigid view of the impact of the Richins letter. his initial reaction to the effect of the letter was that it did not excuse Weaver from appearing for trial. He seemed to base his decision on two factors. First, Weaver had been explicitly informed several times of the trial date yet had failed to appear for trial. Second, defense counsel had made numerous attempts to contact Weaver, including to inform him of the correct change in the trial date, but Weaver had failed to respond. Although we agree that these facts provided sufficient ground upon which to issue the bench warrant for the failure to appear, we believe that the Richins letter made necessary a serious reassessment as to whether some corrective action should have been taken. We find it was not unreasonable for Weaver to assume that the Probation Office was a government agency acting on behalf of the court and authorized to inform him of the trial schedule. It is unrealistic to expect the average citizen to be versed in the division of responsibilities within the judicial system. We believe that the preferable approach would have been for the probation officer to send a corrected letter or, perhaps to have the court clerk issue a notice acknowledging the miscommunication and informing Weaver of the correct trial date. With regard to the conduct of the Probation Office, it was its mistake that created this problem. our investigation produced no evidence that this error was anything but an unintentional mistake by Richins. Nor did we find any indication that Hummel intentionally denied to the reporter that the erroneous letter had been sent. Rather, it is our conclusion that the caution of Hummel to avoid improperly disclosing confidential information may have caused him to couch his response in such a manner that the reporter interpreted the response as a denial.[FN178] However, we have difficulty understanding why the office did not send a letter to Weaver explaining the mistake. Although U.S. Marshal Johnson requested Hummel to send such a letter, Hummel did not honor this request. The Marshals Service, in our view, was placed in the middle of this controversy. It immediately recognized the letter as a significant matter that had a potential impact on the viability of the bench warrant and contacted the other governmental agencies involved and attempted to determine how best to proceed. The initial reaction of Chief Deputy Marshal Evans was to defer execution of the warrant. Marshal Johnson also wanted the probation officer to send a letter correcting the mistake. When they consulted with the U.S. Attorney about how to proceed, Ellsworth advised them that they should withhold any tactical service of the bench warrant until after March 20, the trial date erroneously referenced in the Richins letter. From the evidence presented during the investigation, it appears that the Marshals Service sought guidance from both the court and the U.S. Attorney's Office. The reaction of the court was to do nothing to correct the letter since in its view Weaver was clearly obligated to appear. The position of the USAO was somewhat inconsistent. On one hand, it argued that all indications were that Weaver was not going to appear for trial and that the mistake in the letter had not caused Weaver to form this intent nor would a correction cause him to appear. In its view, a corrected letter would not result in Weaver's appearance. However, on the other hand, the USAO indicated that if it obtained an indictment before March 20, 1991 and if Weaver appeared on or before March 20 it either "would" or "possibly would" move to dismiss the indictment. We think that this somewhat inconsistent position evinces the realization that the letter might provide an explanation for Weaver's failure to appear. It appears that although the USAO was consulted they never took control of the issue or urged the sending of a letter to Weaver identifying the error. Such a posture was neither prudent nor advisable. The justification given for their inaction seemed to be that they believed that all indications were that Weaver was not going to appear for trial. They maintained that Weaver had clearly been instructed about the trial date and his obligation to comply with all the conditions of his release. Moreover, they argued that Weaver's counsel, despite numerous attempts, had been unsuccessful in his efforts to contact his client. In addition, Vicki Weaver, presumably with Randy Weaver's knowledge and approval, had written and mailed two letters before the Richins letter was sent which evidenced an intent not to appear. Furthermore, the Marshals Service investigation indicated that Weaver had antigovernment views and distrusted the government. Finally, in response to the marshal's note requesting surrender, Weaver sent a letter that stated that his family would"not obey your lawless government." If these facts had existed without the presence of the Richins letter, we would concur with the conclusion of the USAO that Weaver would probably not appear for trial. However, the facts did not exist in a vacuum. Even Ellsworth recognized the importance of the letter when he instructed the marshals not to participate in any tactical attempts to execute the warrant until March 20. If Ellsworth thought that the letter was without legal effect, this instruction would have been unnecessary. Similarly, both Ellsworth and Howen recognized that if an indictment were obtained, it might "possibly" have to be dismissed if Weaver appeared for trial on or before March 20. Their recognition that Weaver's possible confusion about the trial date might lead to a dismissal demonstrates that the Richins letter warranted a more active response by the government. Furthermore, the fact that Weaver was known to have an intense distrust of government might also cause one to conclude that the letter might have intensified his distrust and contributed to his reluctance to appear for trial. It is clear from Weaver's comments to the Griders that he received the Richins letter. These comments, which were relayed to the marshals, indicated that Weaver was suspicious of what he viewed as inconsistent messages from the government and his own counsel, and that this inconsistency enforced his belief that the government was conspiring against him. We recognize that we have the benefit of more information than was available in 1991, and have had greater time to assess how the government should have responded. However, irrespective of the advantage of hindsight, we are troubled by the rigidity of the government's approach and the lack of leadership exhibited by the USAO on this issue. Although we do not believe that the response of the government to this letter was illegal or violated Weaver's constitutional rights, we do not understand the reasons for the USAO not taking control of this issue and coordinating a unified governmental response. Indeed, it was incumbent upon the USAO to have the Probation Office send an appropriate correction and to have attempted to discuss the matter with the court. Such action would have taken little effort and would have eliminated any question as to whether Weaver was confused. c. Propriety of Seeking an Indictment on March 14, 1991 Despite the existence of an outstanding bench warrant, the USAO decided to present an indictment to the grand jury charging Weaver with failure to appear. Howen decided to present the indictment on March 14, 1991, six days before the erroneous trial date stated in the Richins letter, because the grand jury only sat once a month. For reasons previously discussed, the USAO was convinced that Weaver was not going to appear. As to why the USAO wanted an indictment, Howen explained that an indictment gave him more control and protected the marshals executing the warrant from civil liability if the court were to withdraw the bench warrant without their knowledge. Howen could not recall what, if any, reasons existed for not delaying the presentment of the indictment until the April session of the grand jury. This investigation found no indication that either the Marshals Service or the court applied any pressure directly or indirectly to the USAO as to when or whether to seek an indictment. We are troubled by the decision of the USAO to seek an indictment before March 20. Its words and actions demonstrate that it had some concern, or at lease question, about the impact of the Richins letter on the failure to appear charge. We are not persuaded by the reasons that the USAO articulated for seeking the indictment when they did. At the time that it sought the indictment, a bench warrant was outstanding. The USAO had never received any indication that the court would withdraw the warrant. To the contrary, the court was firmly resolved that the bench warrant was appropriate and should be executed. Furthermore, if Weaver had been arrested on the bench warrant, it is certain that he would not have been released. This would have enabled the USAO to present an indictment to the next grand jury without there being any concern that Weaver would flee. Seeking an indictment at the time that the USAO did created an appearance of governmental overreaching. d. [G.J.] [G.J.] [G.J.] [G.J] [G.J.] [FN179] [G.J.] [FN180] [FN181] [G.J.] [G.J.] [FN182] 4. CONCLUSION There is no evidence that members of the USAO, the federal probation office and Marshals Service intentionally concealed the erroneous Richins letter from the court on February 20, 1991. However, we conclude that the USAO, the probation office and the court should have appreciated the potential impact of the letter and should have pursued simple and straight forward steps to remedy the error. The decision to seek an indictment prior to the March 20 date state in the letter was unnecessary and created an impression of prosecutorial overreaching. [G.J.] Released through LEXIS COUNSEL CONNECT LEXIS COUNSEL CONNECT is a communications and information service for attorneys. LCC is managed by American Lawyer Media, L.P. FOOTNOTES (SECTION IV, PART B) 71 See 26 U.S.C.  5861 (d) and (f). 72 Devane Report, December 17, 1993. 73 Former U.S. Attorney Maurice Ellsworth explained that because of the distance from Boise to Moscow, his office did not routinely attend preliminary hearings unless it was a high profile case or there was a strong indication that the defendant posed a flight risk. Interview of Maurice Ellsworth, Tape 1, at 40 (hereinafter cited as "Ellsworth Interview"). Accord, Trial Testimony of Stephen Ayers, April 21, 1993, at 26-27. 74 Arraignment Transcript in United States v. Weaver, No. 90- 092-N-HLR, on January 18, 1991, at 6 (hereinafter cited as "Arraignment Transcript"). 75 Id. at 10. 76 Id. 77 Id. at 12. 78 Id. at 18. 79 Id. at 15. The Order setting forth the conditions of release reiterated that the next court appearance was on February 19, 1991 and that Weaver had to contact Richins on January 22, 1991. Condition 7(g) required Weaver to "refrain from possessing a firearm, destructive device, or other dangerous weapon." Order Setting Conditions of Release in United States v. Weaver, No. 90- 092-N-HLR, January 18, 1991, at 2 (Appendix at 4). 80 Arraignment Transcript, at 16-17. 81 Id. at 17-18. 82 See Trial Testimony of Karl Richins, April 22, 1993, at 27- 30. 83 Id. at 31-32. 84 Hearing Transcript in United States v. Weaver, No. 90-092- N-HLR on February 20, 1991, at 2-5 (hereinafter cited as "Hearing Transcript"). 85 See Notice date February 5, 1991, in United States v. Weaver, No. 90-092-N-HLR (Appendix at 7). 86 See Letter from Karl L. Richins to Randy Weaver, February 7, 1991 (Appendix at 8). There is no indication on the letter that Probation sent copies to any other party. 87 See Richins Trial Testimony, April 22, 1993, at 32. 88 Id. at 36-37, 39-41. 89 Id. at 38. 90 Hearing Transcript, February 20, 1991, at 2-5. 91 Letter from Vicki Weaver to the "Queen of Babylon", January 22, 1991 (Appendix at 5). 92 Letter from Vicki Weaver to the "Servant of the Queen of Babylon", February 3, 1991 (Appendix at 6). 93 Ellsworth Interview, Tape 1, at 35-36. 94 Id. at 35. One of the responsibilities of the United States Marshal Service is to assess the seriousness of threats made against judicial and law enforcement officials. FD-302 Interview of Ronald D. Evans, October 21, 1993, at 1. 95 Ronald Evans FD-302, at 1. 96 Sworn Statement of David Hunt, February 5, 1994, at 3; FD- 302 Interview of W. Warren Mays, October 5, 1993, at 2. 97 Mays FD-302, at 2. 98 Hunt Sworn Statement, at 3; Mays FD-302, at 3. 99 Report of Investigation by Mays, February 8, 1991, at 3. 100 Id. at 3. 101 Memo from Evans to Hunt, Cluff and Mays, February 11, 1991, at 1. 102 Hunt Sworn Statement, at 2. 103 Supplemental Memorandum from Ronald Evans to Tony Perez, February 20, 1991, at 2. 104 Letter from Lonnie Ekstrom to Jack Cluff, February 20, 1991. Ekstrom could not locate Weaver's letter but summarized its contents in his letter to Cluff. 105 Report of Investigation by Mays, February 8, 1991, at 3. 106 Memo from Evans to Perez, February 20, 1991, at 2. 107 Report of Investigation by Mays, February 8, 1991, at 3. 108 Mays FD-302, at 2; Hunt Sworn Statement, at 5. Memo from Evans to Hunt, Cluff and Mays, February 11, 1991. 109 Memorandum from Evans to Perez, February 11, 1991, at 2. 110 Mays FD-302, at 2. 111 Hunt Sworn Statement, at 2, 6; Mays FD-302, at 2, 4. Mays stated that he had been told that Weaver was an explosives expert and former Green Beret. Weaver claimed to Secret Service investigators in 1985 that he had served three years as a Army Special Forces Green Beret and that he had been an Army engineer. FD-302 Interview of Randy Weaver, February 12, 1985. Later, he made similar claims to other including Jackie Brown, a friend of the Weavers. Weaver told Brown that he had participated in "drug raids" with the CIA and that he had been a member of a special group of Green Berets. Weaver professed that he became disillusioned with the CIA when officials kept the drugs for themselves. See Sworn Statement of Stephen McGavin, November 19, 1993, at 5. 112 Memo from Evans to Hunt, Cluff, and Mays, February 11, 1991, at 1. 113 Mays FD-302, at 3; Ellsworth Interview, Tape 1, at 53-54. 114 Ellsworth Interview, Tape 1, at 36. 115 Howen Interview, Tape 3, at 19-22. Ellsworth remembers this conversation but believes it may have occurred after the return of the March 14, 1991 indictment. Ellsworth Interview, Tape 2, at 1-2. 116 Memo from Evans to Perez, February 20, 1991, at 2. 117 See Byerly Trial Testimony, on April 20, 1993, at 68. 118 See Howen Interview, Tape 2, at 3, 42-43. See also, Byerly Sworn Statement, at 13. If Weaver had appeared, Byerly was to inform Weaver that the trial date had been changed and that he should contact his attorney immediately. Id. 119 Judge Ryan believes that one of his law clerks advised him shortly before the trial that Weaver would probably not appear. FD-302 Interview of the Honorable Harold Ryan, November 9, 1993, at 1. 120 Hearing Transcript, February 20, 1991, at 2-5. Warren Mays testified at trial that the local postal inspector told him on February 21, 1991 that Bill Grider had picked up the mail from the Weaver box for the previous three weeks. See Mays Trial Testimony, April 23, 1993, at 111-12. 121 Hearing Transcript, February 20, 1991, at 6-7. 122 Id. at 7. 123 FD-302 Interview of the Honorable Harold Ryan, November 9, 1993, at 1. 124 Id. at 2. 125 See Memo from T.A. Hummel to File, February 26, 1991 (hereinafter cited as "Hummel Memo") (Appendix at 9); FD-302 Interview of Terrence A. Hummel, October 19, 1993, at 2. 126 Hummel discussed the matter with Martin instead of Judge Ryan because Judge Ryan was travelling back from northern Idaho. See Hummel Memo, February 26, 1991. 127 Id. 128 See Memo from Evans to Perez, February 27, 1991, at 1 (Appendix at 11). 129 Hummel also discussed the letter with Richins, who was quite concerned about the error. When Richins asked if there was anything that he could do to correct the mistake, Hummel told him that he had handled the matter and had done everything that he could do. See Richins Trial Testimony, at 46-51. 130 See Hummel Memo, February 26, 1991; Hummel FD-302, November 12, 1993, at 1. 131 See Hummel Memo, February 26, 1991. 132 See Letter from T.A. Hummel to Everett Hofmeister, February 26, 1991 (Appendix at 10). 133 See Hummel Memo, February 26, 1991. 134 Memo from Evans to Perez, March 12, 1991, at 2. 135 Hummel FD-302, at 1. 136 FD-302 Interview of James L. Martin, October 23, 1991, at 4. See also, Howen Interview, Tape 2, at 49. 137 See Memo from Evans to Perez, February 27, 1991, at 1 (Appendix at 11) Evans Memo, at 1. Hunt testified at trial that Evans told him that law clerk Martin had informed him that the bench warrant was still in effect and that the Marshals Service "would proceed with our duty." Trial Testimony of David Hunt on May 3, 1993 at 73-75. A Marshals Service Daily Report dated February 28, 1991, which was an Addendum to the Enforcement Division Daily Report, provided an update on the Weaver matter. It stated that "[a] Federal judge in D/Idaho has ordered the USMS to have Weaver in court for his trial beginning March 11, 1991." This report also referred to preparations by Marshals Service to arrest Weaver on March 10, 1991 with the support of state and local police authorities. 138 See Memo from Evans to Perez, February 27, 1991, at 3; Hunt Trial Testimony, May 5, 1993, at 9-10. 139 Richins Trial Testimony 140 Howen cannot recall when or how he learned of the Richins letter although he knows it was after Weaver failed to appear on February 20th. See Howen Interview, Tape 2, at 44-45. 141 See Trial Testimony of Maurice Ellsworth, April 22, 1993, at 26-29. See also, Evans FD-302, at 1. Although Ellsworth did not recall Mays being a participant in this meeting, Mays testified at trial that he was present. See Mays Trial Testimony, May 5, 1993, at 2-3. On that same day, Evans and Deputy Marshall Jack Cluff had a telephone conference call with Ken Keller, the reporter from the Kootenai Valley Times. Keller told them that someone came into the newspaper office and stated that Randy Weaver, his wife and children, along with the Grider children, "are waiting at the Weaver cabin, and are prepared to make a final stand." Report of Investigation by Evans, February 28, 1991. 142 Ellsworth Trial Testimony, April 22, 1993, at 30; Ellsworth Interview, Tape 1, at 42-44. 143 FD-302 of Maurice Ellsworth, October 29, 1993, at 2. Evans described the meeting as follows: The U.S. Attorney has determined that it is in the best interest of the Department of Justice to withhold any tactical approach to service of the warrant on Weaver until after March 20, 1991. The Bench Warrant will remain in effect. . . . The U.S. Attorney intends to indict Weaver on 3/12/91 for FTA but admits he will most probably be forced to dismiss the FTA indictment prior to any trial. Defense counsel for Weaver has been instructed by the Chief Judge to 'find your client and surrender him to the U.S. Magistrate in Northern Idaho'. . . . Memo from Evans to Perez, February 28, 1991, at 1 (Appendix at 12). 144 See Hunt Trial Testimony, May 3, 1993, at 66. 145 Id. at 66-67. 146 See Mays Trial Testimony, May 5, 1993, at 6-8. 147 A Marshal Service Special Operations Division document dated March 5, 1991 and entitled, "Significant Events," stated that after Evans spoke with the United States Attorney and the ATF case agent, it was decided "the district will delay the attempt to [sic] RANDALL C. WEAVER. . . . Chief Evans advised that WEAVER will be indicted on March 12, 1991, and arrested after March 20, 1991." 148 Hunt Trial Testimony, May 3, 1993, at 66-67. 149 See Evans Trial Testimony, May 5, 1993, at 63. 150 Law enforcement regarded the Griders as "more radical and dangerous than Weaver." See Addendum to Enforcement Division Daily Report, February 28, 1991, at 1. In May 1990, the Raus purchased land that the IRS had seized as a result of tax liens. Without the permission of the Raus, the Weavers assisted the Griders in moving into a cabin on this property. Thereafter, the Raus were forced to obtain a court order to evict the Griders from the cabin. See Incident Report of Boundary County Sheriff's Office, June 7, 1990. 151 Report of Investigation by Hunt, March 5, 1991, at 2. 152 Letter from the Weavers to "servant of the Queen of Babylon", March 5, 1991 (Appendix at 13). Mays prepared an analysis of the Biblical references in this letter and the earlier ones and concluded that "Weaver sees the court and USMS personnel as servants of the Queen of Babylon, those who serve her serve Satan." Report of Investigation by Mays, March 25, 1991, at 1-2. 153 Report of Investigation by Mays, March 6, 1991, at 2. 154 Memo from Evans to Perez, March 7, 1991, at 1. Michael Weland, a reporter for the Kootenai Valley Times who interviewed Weaver in May 1992, echoed this view. Weland believed that Vicki Weaver "would rather die along with her family in their cabin than subject herself and her family to the law enforcement agencies . .. . [T]hat would include committing suicide instead of surrendering." FD-302 Interview of Michael Weland, August 25, 1992, at 2. 155 Memo from Evans to Perez, March 7, 1991, at 1. 156 Threat Source Profile, March 7, 1991, at 3, 7-8, 15. 157 Report of Investigation by Hunt, March 11, 1991, at 1. 158 Memo from Evans to Perez, March 12, 1991, at 2. 159 Id. Vicki Weaver's parents, the Jordisons, visited the Weavers in April 1991. Afterwards, they reported to Evans that Weaver feared the government was planning to take his land away because he failed to go to court "for something he did not do." The Jordisons could offer no suggestions as to how the matter could be resolved peacefully. Report of Investigation by Evans, April 24, 1991, at 3-4. 160 FD-302 Interview of Michael Johnson, October 5, 1993, at 3. 161 Ellsworth Trial Testimony, April 22, 1993, at 33. 162 Id. at 34. 163 See Howen Interview, Tape 2, at 46. 164 Id., Tape 3, at 2-4 165 Id. at 3. 166 Ellsworth Interview, Tape 1, at 45. In retrospect, Howen concluded that perhaps they should have sent Weaver a letter explaining the error although he remained convinced that Weaver did not intend to appear. Howen Interview, Tape 3, at 5. 167 Howen Interview, Tape 2, at 47; Tape 3, at 12-13. 168 Ellsworth Interview, Tape 1, at 45-46. 169 Id. at 46. 170 Howen Interview, Tape 2, at 47-48; Tape 3, at 6, 10. 171 Howen Interview, Tape 3, at 6-7. Howen insisted that no one from the Marshals Service pressured the U.S. Attorney's office to indict Weaver in March. Id. at 20. 172 According to Ellsworth, while he was U.S. Attorney this was only the second case in which a bench warrant had been issued for a defendant failing to appear for trial. In both cases, his office had sought an indictment charging the failure to appear. Ellsworth Interview, Tape 1, at 44-45. 173 See [G.J.] 174 See [G.J.] 175 [G.J.] 176 [G.J.] 177 [G.J.] 178 Former U.S. Attorney Ellsworth opined that he did not think that it was particularly appropriate for a Probation Officer to be talking with a member of the press under any circumstances. Ellsworth Interview, Tape 1, at 52. 179 [G.J.] 180 [G.J.] 181 [G.J.] 182 [G.J.] _________________________________________________________________ _________________________________________________________________ IV. SPECIFIC ISSUES INVESTIGATED C.EFFORTS BY THE MARSHALS SERVICE TO EFFECT THE ARREST OF WEAVER 1. INTRODUCTION It has been suggested that the shooting deaths of Marshal Degan and Sammy Weaver on August 21, 1992 were the result of a scheme by the Marshals Service to assault the Weaver property, or at the least, the result of inadequate planning. This inquiry examined the scope of the Marshals Service investigation between February 1991 and August 1992 and examined the options the marshals considered to effect the arrest of Weaver. 2. STATEMENT OF FACTS a. Involvement of the Marshals Service Special Operations Group On March 18, 1991, Ronald Evans requested the assistance of the Marshals Service Special Operations Group ("SOG").183] SOG is a voluntary unit in the Marshals Service specifically trained to handle dangerous or complex matters, such as hostage situations involving fugitives.[FN184] Evans compared the Weaver situation to the violence surrounding the attempted arrest of Gordon Kahl when Evans was Chief Deputy of the North Dakota District.[FN185] He added that many days/nights of surveillance would be necessary to determine the Weavers' daily routine and asked for SOG assistance in determining how to arrest Weaver "while minimizing risk to all persons involved. . . . Ultimately, we must find a single weakness which will cause Randy Weaver to leave the house if only momentarily."[FN186] On March 23, 1991, Evans briefed SOG Commander John Haynes, Deputy Commander Louis E. Stagg, and other SOG personnel.[FN187] At that time, Stagg asked Evans about the pressure he was under to apprehend Weaver, and Evans replied that a "very senior Judge" was not going to tolerate delay in capturing Weaver.[FN188] It was tentatively agreed that an SOG reconnaissance team would travel to Idaho in mid-June to gather information for a plan to arrest Weaver. Haynes directed that Stagg lead the mission.[FN189] SOG also retained the services of Dr. Walter F. Stenning, Ph.D., a psychologist, to construct a psychological profile of Randy Weaver. Dr Stenning concluded: In my best professional judgement, Mr. Randall (sic) would be an extreme threat to any police officer's attempt to arrest (sic) him. Further, Mr. Randall (sic) has indoctrated (sic) his family into a belief system that the end of the world is near and that his family must fight the fences (sic) for evil that want to take over the world. I believe his family may fight to the death. If Mr. Randall (sic) is captured by your force, I feel the remaining members of the family will use all force necessary including deadly force to regain Mr. Randall's (sic) freedom. Also, all evidence indicates that the Randalls' (sic) home and surrounding property is defensively fortified to repel assault. In summary, my best professional judgement is that Mr. Randall (sic) and family will resist and have the means to resist all but a military type assault. Further, even with a military type assault the family will fight, possibly to the death. It seems most effective to wait until Mr. Randall (sic) leaves his house and is alone to make the arrest on the Federal warrant.[FN190] b. SOG Reconnaissance and Recommendations Between June 17 and 24, 1991, the SOG reconnaissance team assessed the Weaver case in Idaho. SOG Deputy Commander Staff was accompanied by Deputy Marshals Cody Thorpe and Larry Ely. They reviewed the files of the local marshals and met BATF agents, Forest Service representatives, the local sheriff, and others. BATF Agents Byerly and Kelly told them that "Weaver and his entire family will react violently to any attempt by the USMS to arrest Weaver and that Vicki Weaver and the children should be considered just as dangerous as Weaver." Kelly also reported that Weaver had plans to remove himself and his family to caves in the mountain. [FN191] Byerly speculated that Weaver might leave the property to attend the upcoming Aryan World Congress.[FN192] Sheriff Whittaker told the SOG reconnaissance team that he thought Weaver feared that the government would take his property through forfeiture of the bail bond and might kill his family in an assault to arrest him. In addition, Whittaker also told Staff that Weaver had threatened his neighbors, the Raus.[FN193] Whittaker, however, did not "completely share the assessment of other (law enforcement) agencies that Weaver is completely beyond rational reasoning and will fight to the death."[FN194] Stagg briefed Marshal Johnson and U.S. Attorney Ellsworth about his findings. He recommended against a tactical assault on the Weaver compound because of possible injury to the marshals and the women and children. Instead, it was his recommendation that the indictment be dismissed and then refiled later under seal. Staff also cautioned that an attack must be forceful to eliminate the risk of Weaver escaping into the woods, where he would pose more of a threat.[FN195] Thereafter, Stagg requested an opportunity to present his findings to Chief Judge Ryan but Ellsworth refused the request.[FN196] Stagg told Hunt that this "was the worse (sic) situation he had seen in 23 years."[FN197] The SOG team set forth its findings in a Law Enforcement Operations Order, which portrayed the situation as exceedingly difficult and Weaver as "extremely dangerous and suicidal." The team concluded that: Weaver has been preparing for five months [since his arrest by BATF] for his war or confrontation with law enforcement and it is very likely that he has established numerous fortifications and defensive positions on his property. It is also possible that Weaver has placed booby traps and/or command detonated explosive devices on routes of approach or concealment. The report set forth a proposal to arrest Weaver with "a minimal risk of loss of life" and "minimum force necessary to effect arrest." The proposed plan contemplated use of reconnaissance teams to determine whether Weaver could be arrested away from his residence, wife and children. If that were not feasible, the team would gather intelligence necessary to implement a "tactical movement" with armored vehicles.[FN198] Following the submission of the report, SOG took no additional action until Evans again requested SOG's assistance in effecting Weaver's arrest. On September 25, 1991, Evans wrote: Patience and negotiations have not been rewarded in the instant matter. We have communicated with the Weaver family through his family, friends, and his attorney. We have provided him with multiple opportunities to surrender to this office, the local sheriff, or to his court appointed counsel. . . . One option remains and should be exercised quickly. We still need to verify Weaver's existence on the property and test his dedication. In testing the latter, it must be done with a careful balance to limit and minimize risk to law enforcement, the Weaver family members, and to Randall Weaver. Without experimentation, we are stymied and without answers. . . . While time may have initially been on our side, it has now turned against us. We are within thirty days from being locked out of the area by climatic factors. If we avoid this opportunity, it will be May, to June, 1992 before any course of action can be initiated. I seriously doubt the court will reasonably wait until 1992 for the initial endeavor to serve the warrant. [FN199] Evans then asked that a team of SOG members be dispatched to the Weaver property to contact Randy Weaver. He envisioned their role as follows: They will be instructed to arrest Weaver without injury to themselves or any other person. If they determine that this cannot be accomplished without life threatening circumstances, they will be instructed to leave the immediate area without delay. ...[FN200] On September 28, 1991, a seven man SOG detail was dispatched to assist in arresting Weaver. However, upon arrival, the team concluded that "the information upon which the SOG move order was issued was inaccurate," and the plan to arrest Weaver was cancelled.[FN201] Thereafter, the team gathered additional information and learned that Vicki Weaver was pregnant and close to delivery. In addition, the team reported that Weaver was still on the mountain and that the situation was as dangerous as before. It also concluded that "it [was] very likely that any attempt to arrest Weaver at his property will result in an armed gun battle and subsequent loss of life."[FN202] On July 9, 1991, Deputy U.S. Marshal Cluff and Everett Hofmeister, Weaver's appointed counsel, told Rodney Willey, a Weaver associate, that if Weaver surrendered, the failure to appear charge might be dismissed.[FN203] They also told Willey that the sentence on the weapons offense would be minimal because Weaver did not have a criminal record. On July 10, Willey informed Hofmeister that Weaver would not surrender because "[his] rights will be violated."[FN204] In late September 1991, Hunt and Ely interviewed Beverly and Ed Torrence, who owned land adjacent to the Weaver property. The Torrences explained that they had encountered the Weavers a few days earlier when they had gone up to view their property. At that time, the Torrences drove near the Weaver house and stopped to ask about some property markers. The Weaver dogs came to their car, followed by Sammy Weaver, who called to the house. The Torrences then saw Randy Weaver and "Dennis" looking down on them from a rock outcropping.[FN205] Each held a rifle or shotgun. Thereafter, the Torrences were invited into the Weaver cabin where Randy and Vicki Weaver explained their religious and political views. Randy Weaver told the Torrences that the Aryans are the true chosen people of Yahweh and that the Jews are impersonators.[FN206] He claimed that a federal informant had introduced him to the Aryan Nations. Weaver also discussed the BATF arrest and that he was expecting federal agents to come to his home, but that he was not going to be arrested by anyone. According to Weaver, he and his family would shoot federal law enforcement officials who came on his property. "If they do take me, I'll take some with me," and that is "[w]hy we have the guns." Beverly Torrence observed that Weaver appeared "vehement in his belief that he would rather fight than go peaceable (sic)."[FN207] During this period, the marshals also received information that Weaver might attend the America's Promise Ministry, a suspected Aryan Nations church, in Sandpoint, Idaho. The Marshals Service began surveillance of the church, but Weaver was not seen.[FN208] d. Exchange of Surrender Terms On October 9, 1991, Deputy Marshal Mays interviewed Alan Jeppeson, who had been observed bringing supplies and mail to the Weaver cabin.[FN209] Mays asked Jeppeson to convey another negotiation offer to the Weavers. A series of exchanges followed. On October 12, 1991, Jeppeson gave Mays a letter from the Weavers which stated: The U.S. Government lied to me - why should I believe anything its servants have to say . . . . This situation was set up by a lying government informant whom your lawless courts will honor. Your lawless One World Beast courts are doomed. I have appealed to Yahweh's court of Supreme Justice. We will stay here separated from you & your lawless evil in obedience to Yahshua the Messiah.[FN210] Jeppeson told Hunt that Weaver did not want to be tried in Idaho "due to prejudice against those who believed in separation of the white race."[FN211] According to Jeppeson, Weaver might surrender, if the trial could be moved and if Jeppeson could remain with Weaver until he was released or sentenced.[FN212] Thereafter, the Marshals Service began to formulate a surrender offer. This offer included promises that: the government would not interfere with Vicki Weaver's custody of her children; [FN213] the Marshals Service would not harass Randy Weaver's family; and the Government would not move to forfeit Randy Weaver's property.[FN214] The following day, Jeppeson delivered a letter from Vicki Weaver, addressed to Mays and Hunt, that posed a number of questions, including: 1. Why a government informant or agent cannot be cross-examined by a defense attorney? 2. Why did the U.S. Dist. Judge in Coeur D'Alene tell [the Weavers] that if [they] lost [their] case [they] would lose the $10,000 bond to pay the attorney?[FN215] 3. Why is there a concerted effort to 'set up' for prison or murder all ex-green berets (Special Forces). My husband is an ex-green beret. We know there are those already in prison from 'set ups.' They all went to court expecting justice from the courts of the country they loved. They didn't receive any! (Emphasis in original.) Jeppeson told the marshals that he thought that Weaver would agree to meet Hunt. On October 16, 1991, Evans and Hunt gave Jeppeson a letter to give to Randy Weaver that responded to the questions Vicki Weaver had raised. Later that same day, Jeppeson gave Hunt a brief response signed by Vicki Weaver, which declared "[t]here is nothing to discuss. [Randy] doesn't have to prove he is innocent. Nor refute your slander."[FN216] e. Post-Negotiation Investigation In October 1991, Hunt and Evans drafted a letter to Weaver, for Marshal Johnson's signature, containing proposed surrender terms. They sent the letter to the USAO for review.[FN217] Assistant U.S. Attorney Howen rejected the proposal on October 15, 1992 and explained in a subsequent letter that: [I] cannot authorize further negotiations or discussions along this line with defendant or his agent for two reasons. First, since the defendant is represented by Everett C. Hofmeister, appointed counsel, all contact with the defendant must be through his lawyer and not by ex parte means. Department of Justice policy and the Cannons (sic) of Ethics prohibit direct or indirect contact with a defendant who is represented by counsel for any negotiation purpose. Second, the . . . areas of proposed negotiation are either not within my power to grant or bind the government, to (sic) broad in their scope, or are the type of matters properly addressed in a plea agreement in exchange for guilty pleas, but not mere surrender.[FN218] As a result of Howen's directive, the Marshals Service did not send the proposed letter. Following the termination of negotiations, Hunt continued to gather information. He determined that Weaver had "set an approximate 100 yard perimeter around his house" that gave him "high ground coverage of 360 degrees." Hunt described Weaver's routine: Weaver's tactics appear to be that he and [Kevin] Harris will cover any intruders [on the property] from a distance until they are identified....In most cases Weaver will send his son or Harris to investigate a situation while Weaver covers them. Weaver also has a very aggressive dog that will warn them if someone is approaching.[FN219] There was very little activity by the marshals on the Weaver matter through the winter months because the property was snowed in, and surveillance was not practical.[FN220] However, they continued to receive information about who was visiting the Weaver property. On March 1, 1992, the Spokesman Review, a newspaper in nearby Spokane, Washington, reported that Weaver's children were armed and quoted area residents who predicted violence if law enforcement agents attempted to apprehend Weaver. Allan Jeppeson was quoted as saying, "They'll lose their lives if they go up there and threaten Weaver" and "he don't want nobody on his mountain."[FN221] On March 4, 1992, Cluff and Evans traveled to the Rau house to obtain an update on Weaver's activities and to check on the status of a telephone being installed there at the Marshal Service's expense. Once there, Cluff and Evans decided to drive up the mountain road leading to the Weaver cabin.[FN222] They were in plain clothes and rode in an unmarked four-wheel drive vehicle. As they proceeded up the mountain road, the marshals found that vehicle noise on the unmaintained road was clearly audible for great distances. When they reached the top of the road, by the entrance to the Weaver property, they saw signs reading, "White Power is Supreme" and "Bow Down to Yahweh." Cluff and Evans then saw Randy Weaver, armed with a rifle, and a boy and a girl standing above them on a rock formation. The boy also had a rifle. A yellow dog ran up to the vehicle, barking.[FN223] When Weaver told them they were trespassing, they responded that they were interested in buying property. Weaver told them to return with a realtor. Cluff and Evans left.[FN224] Thereafter, Evans determined that additional reconnaissance was necessary. He had learned of previously unknown trails to the Weaver property and believed it was necessary to explore them. f. Briefing of the Marshals Service Director A meeting was held on March 27, 1992 at Marshals Service Headquarters to brief Acting Director Henry Hudson and other officials, including Duke Smith, Associate Director for Operations, Tony Perez, Chief of the Enforcement Division, Inspectors Arthur Roderick and William Hufnagel of the Enforcement Division, Deputy Marshals John Haynes and Lou Staff of SOG, and Marshal Johnson. At the meeting, Haynes and Stagg presented a plan for an assault on the Weaver compound, but recommended against taking such action. Hudson agreed that a tactical approach did not appear viable because of their concern for the safety of Vicki Weaver and her children.[FN225] As an alternative, Hudson telephoned U.S. Attorney Ellsworth and asked him to consider dismissing the warrant against Weaver and reissuing it under seal. Hudson thought this would relieved the pressure to arrest Weaver and might cause Weaver to believe it was safe to come off the mountain. Hudson explained to Ellsworth that Weaver could then be arrested without launching an assault on the compound and risking injury to the children and to government personnel. Ellsworth told Hudson that he thought it would be unethical to dismiss the indictment and then reindict Weaver in secret.[FN226] Assistant U.S. Attorney Howen said they could not dismiss the indictment because Judge Ryan was calling for Weaver's arrest. [FN227] In response, Hudson offered to travel to Boise to meet Judge Ryan, but his offer was not accepted.[FN228] Unable to resolve the matter in this fashion, Hudson ordered that any plan adopted should avoid potential harm to Vicki Weaver and the Weaver children. He believed that a "ruse" arrest would be ore likely to achieve this goal than an "operational" strategy.[FN229] Thereafter, the Weaver case was transferred to the Enforcement Division and was given the name "Operation Northern Exposure." The primary responsibility for developing a plan was given to Deputy Marshal Arthur Roderick, Branch Chief of the Enforcement Division.[FN230] g. Development of Three Phase Operational Plan After considerable discussion with the Idaho District and Headquarters, Roderick and Hufnagel devised a three phase plan for arresting Weaver. Under Phase I, a team of marshals would assess the feasibility of technical surveillance of the Weaver cabin and property.[FN231] This would necessitate inspection of the Weaver property to determine the surveillance equipment that could be used.[FN232] A team comprised of Roderick, Hufnagel, and Deputy U.S. Marshals Mark Jurgenson, Ron Libby, and Dave Hunt, was assembled to carry out Phase I.[FN233] (1) Phase I At the beginning of Phase I, Roderick rented a condominium on Schweitzer Mountain, approximately 25 miles from the Weaver property which was to serve as a command post. The team also spent several days conducting surveillance of the Weaver house from the north and west ridges and looking for sites on which to mount surveillance cameras. During this process, they observed the Weavers responding to certain noises by running with rifles to a rock ledge that overlooked the driveway.[FN234] On one occasion during Phase I, Roderick nearly had an encounter with Kevin Harris. While Roderick was in the woods near the north ridge observation post, he saw Harris ride nearby on a motorcycle and past the unmarked marshal's truck. When Roderick returned to the truck the tires on the truck were flat.[FN235] (2) Phase II On April 13, 1992, Roderick and Hufnagel briefed Acting Director Hudson on the results of Phase I of the plan to arrest Weaver.[FN236] While Hudson was shown photographs of the area, Hufnagel described the locations of surveillance cameras, which would provide information about the Weavers' daily routine. Information obtained from the surveillance cameras during Phase II was expected to assist the Marshals Service in developing options for Phase III of the plan, which was the arrest of Weaver.[FN237] In addition, Hudson was informed that the assistance of five additional marshals was needed for Phase II.[FN238] Acting Director Hudson approved Phase II on or about April 13, 1992. The Phase II Plan noted that Kevin Harris was now living in the Weaver cabin. Harris was described as "an ardent supporter of Weaver's [who] thinks of [Weaver] as his father."[FN239] On April 18, the marshals installed surveillance cameras on the west ridge and, on April 22, they installed the cameras on the north ridge. Soon thereafter the cameras became operational after a number of technical problems had to be solved.[FN240] The marshals had to make several trips to the camera sites, often in darkness, to bring the heavy batteries needed to power the cameras.[FN241] During Phase II, the team also made three trips onto the Weaver property to survey the terrain because little was known about the land surrounding the Weaver cabin. Each trip began before daybreak and the marshals used night vision equipment.[FN242] Although aerial photographs portrayed the land as flat, it was actually heavily wooded and frequently steep and rugged. The closest that the marshals got to the cabin was during the third trip in the first week of May. While it was still dark, Roderick, Hunt and Libby took the "East Trail," which ended behind the Weaver cabin. They then passed some water tanks a few yards from the cabin and worked their way down to the spring house by the lower garden. This was the first time any marshal had circled the Weaver house and viewed the surrounding grounds. While they were in the lower garden area, Libby spotted a small dog, who was "yapping", but who stopped when the marshals took cover.[FN243] During this period, Buster Kittel, a private citizen, went to the mountain to survey property he had recently purchased. To reach his property, he had to drive past the Weaver cabin. As he reached the Weaver driveway, Kittel heard a shot from a small caliber gun and saw Sammy Weaver standing above him with a rifle on a rock outcropping. Randy then joined Sammy, holding a pistol and a rifle. Weaver asked Kittel if he was a federal marshal and directed Kittel's girlfriend to get out of the truck. Weaver told Kittel that he did not believe that Kittel had bought property and told him to come back with proof. The next day Kittel returned with some paperwork, which he showed to Vicki Weaver. The Weavers then allowed Kittel to proceed to his property.[FN244] Video tapes produced from the surveillance cameras during Phase II were sent to Headquarters which had directed the cameras to continue to be operated. Because the batteries were running low, the marshals decided to replace them with solar panels, which were installed on May 1 and 2. Kevin Harris apparently heard the marshals working on the north ridge and was seen looking up at the area. A few days later the camera on the north ridge stopped transmitting. Upon investigation, Roderick and two other marshals discovered that the camera equipment had been stolen.[FN245] On April 13, 1992, the Marshals Service was informed that a crew from "Now It Can Be Told," a television program hosted by Geraldo Rivera, may have been shot at while flying over the Weaver property in a helicopter.[FN246] Two weeks later, Randy and Vicki Weaver were interviewed on May 2, 1992 by Michael Weland, a local newspaper reporter. Vicki said that the mountain had been given to them by "Yahweh" and that "We will not leave our mountain."[FN247] Weland also quoted Vicki as saying that her family feared that Randy would "be railroaded through the court and once he was gone [the government] would have come it, kicked us off the property and torn this place apart." Randy Weaver was quoted in the same article as stating that: "Right now, the only thing they can take away from us is our life. Even if we die, we win. We'll die believing in Yahweh."[FN248] (3) Transition to Phase III After Phase II of the operation had been completed, Roderick and Hufnagel developed two alternative plans for capturing Weaver, one "lethal," the other "non-lethal." Both proposals involved teams of marshals surrounding the cabin and forcing Weaver outside. The plans differed in that, under the "lethal" plan, the teams would be armed while under the "non-lethal" plan, they would use rubber bullets and other passive strategies, such as cutting off the water supply to the cabin.[FN249] Acting Director Hudson was briefed on the options for Phase III.[FN250] Deputy Attorney General George Terwilliger, who happened to be present at Headquarters, also attended the meeting. When Hudson asked what the marshals would do if the Weaver children fired at them, Roderick responded that they would defend themselves. Terwilliger found this "unacceptable."[FN251] Hudson rejected both the "lethal" and the "non-lethal" plans out of fear for the children's safety.[FN252] Thereafter, Roderick developed an undercover plan to arrest Weaver, which required two marshals to assume the roles of husband and wife and to purchase a plot of land north of the Weaver property. To provide security for the marshals, the land purchase would have legitimate paperwork. In addition, the undercover marshals would clear the property to create the impression that they were authentic purchasers. Five two-man teams would accompany the undercover marshals to the mountain on each visit and provide cover from the woods.[FN253] The plan assumed that Weaver would become accustomed to the undercover marshals, leading to an opportunity to arrest him out of the presence of the other family members. The marshals believed that it might take up to a year to secure Weaver's arrest.[FN254] Although final approval was needed from Acting Director Hudson, Roderick was given permission by Jim Roach, Deputy Director for Operations, in late May 1992, to begin preparations for the undercover operation. Roderick chose Deputy Marshal Mark Jurgensen of the Seattle office for the undercover role. Roderick, Jurgensen, and Hunt started assembling documents necessary to carry out the ruse.[FN255] h. Delay in Implementing the Undercover Operation Roderick was instructed not to put the undercover plan into effect while Hudson's confirmation was pending before the U.S. Senate.[FN256] In early August 1992, Hudson was confirmed Director of the Marshals Service and gave oral approval of the undercover operation shortly thereafter.[FN257] Because there had been no surveillance of the Weaver property since May, Roderick thought it necessary for a team to visit the site and update their information.[FN258] 3. DISCUSSION A number of allegations has been raised about the conduct of the Marshals Service between February 1991 and August 1992. We examine in this section these allegations. a. The Initial Response of the Marshals Service to Weaver's Failure to Appear Before the failure to appear indictment was returned, Judge Ryan issued a bench warrant and directed the Marshals Service to arrest Weaver. Judge Ryan declined to withdraw the warrant when he learned that the Probation Office had sent Weaver a letter with an incorrect trial date. After the indictment was returned, Ellsworth rebuffed Hudson's request to dismiss the indictment and return it under seal. We appreciate the problem the Marshals Service faced. It could not ignore the Court's order or the indictment and, thus, had no choice but to take steps to apprehend Weaver to face the pending charges. Indeed, Former Director Hudson has explained that the Marshals Service has no independent role in evaluating charges when it is called upon to apprehend a fugitive.[FN259] In addition, this investigation has found that simply leaving Weaver on the mountain, despite its facial appeal, was not an option available to the Marshals Service once charges had been instituted.[FN260] Moreover, the marshals had a legitimate concern that the Weavers were harassing their neighbors, the Raus. Indeed, by August 1992, it was feared that if Weaver were allowed to remain at large, there would be an incident in which the Raus, or other innocent problems, might be harmed.[FN261] Notwithstanding the need to apprehend Weaver, it appears at initial glance that the resources the marshals committed to the case were disproportionate to the relatively insignificant underlying charge.[FN262] However, at the same time, we recognize that no one, including Randy Weaver, is entitled to ignore the rule of law. Thus, all factors considered, we acknowledge that the Marshals Service had no option but to respond. Because the Marshals Service had no option but to pursue Weaver's arrest and because that arrest posed possible injury to law enforcement and to the Weavers, it was incumbent on other law enforcement agencies and the court to assist the Marshals Service in resolving the impasse. As we note below, the Marshals Service received little practical assistance from the U.S. Attorney's Office which also hindered communications with the court. We are troubled that no agency or individual took action in response to the concerns of the Marshals Service. b. Considerations by Marshals Service of Alternatives to Secure the Arrest of Weaver The Marshals Service employed many different options for securing Weaver's arrest before settling on a plan in May 1992. The record is replete with discussions of proposals made by different components of the Marshals Service. Its approach was extraordinarily cautious. Common to each strategy the Service considered was a concern for the safety of the Weaver children and the arresting marshals. For this reason, a tactical approach, that is, an armed raid on the residence, was considered unrealistic by Idaho marshals as early as March 1991. The Special Operations Group reached the same conclusion in June 1991 and again in September 1991 after reviewing a psychological profile of Weaver and conducting its own investigation in Northern Idaho.[FN263] In March 1992, Director Hudson ruled out any "tactical" or "operational" strategy that did not eliminate the possibility of harm to Vicki Weaver or her children. Hudson even rejected a "non-lethal" tactical plan, which contemplated the use of rubber bullets, because it involved an assault on the cabin and, therefore, posed a potential danger to the children.[FN264] The problem of "innocent casualties" arose out of a mass of evidence that Weaver and his family were armed and determined not to submit to authorities without a fight. For example, BATF informed the marshals that Weaver had resisted its "ruse" arrest in December 1990, had attempted to grab a weapon during the arrest, and had declared that he would not be tricked again. BATF had also reported that Weaver and his family were armed "at all times" and could present a danger to arresting officers. Additional information collected by BATF suggested that Weaver thought the end of the world was approaching and that he was prepared for a final battle on his property. Weaver's military record revealed that he may have received demolition training, and the marshals feared that he had established fortifications and defensive positions on his property.[FN265] Weaver also had written to the Boundary County Sheriff that he would not leave his cabin and that law enforcement agents would have to take him out.[FN266] The "Queen of Babylon" letter sent to U.S. Attorney Ellsworth had quoted a "Declaration of War" by a white supremacist who had died in a violent confrontation with law enforcement officers. Frank Kumnick, the leader of a local Aryan Nations church and a friend of Randy Weaver, had told Mays that Weaver spoke of having a violent confrontation with the law since 1984 and that Vicki and Randy Weaver had "ideas of martyrdom."[FN267] In addition, there were reports that the Weaver children were well trained in the use of firearms and would protect their father if an arrest were attempted on the property.[FN268] Surveillance showed that the Weavers responded to the noise of approaching vehicles by running with rifles to a rock ledge.[FN269] Various intermediaries had reported that Weaver repeatedly said that he would not leave his property and that he would shoot intruders if he thought it necessary to protect his family. Finally, the Weavers signed a letter stating that the Weaver children would not leave the mountain.[FN270] This list illustrates the data the Marshals Service had collected and is by no means exhaustive. We found no countervailing evidence that Weaver would surrender peacefully. Accordingly, we believe that the wariness of the Marshals Service was justified. In addition, we believe that the caution of the Marshals Service also stemmed from its experience with Gordon Kahl, the head of Posse Comitatus. When the Marshals Service attempted to arrest Kahl in 1983, a firefight erupted in which two marshals were killed and Kahl and his son were wounded.[FN271] Chief Deputy Ron Evans was Chief Deputy of the North Dakota District when the Kahl incident occurred and compared the Weaver matter to the Kahl case.[FN272] In view of the disadvantages attending a "tactical" approach, the marshals began to explore "non-tactical" alternatives. In March 1991, Evans discussed sending a negotiator to the Weaver cabin under a "white flag." However, the approach was abandoned because it was believed that Weaver would "fire on any law enforcement officer or agent of [the Zionist Organized Government]."[FN273] Both the Special Operations Group and Director Hudson asked U.S. Attorney Ellsworth to dismiss the indictment against Weaver and to re-issue it under seal to reduce the pressure to arrest Weaver and to trick him into leaving his property so that he could be arrested without risk to the children. Ellsworth and Howen refused Hudson's request.[FN274] The marshals also pursued information that Weaver might leave his property to attend a suspected Aryan Nations church. The marshals began surveillance of the church but Weaver did not appear.[FN275] Beginning in October 1991, Mays and Evans initiated a series of communications with Randy Weaver through various intermediaries, such as the Jeppesons, Griders, and Vicki's parents, the Jordisons. The marshals and Weaver also exchanged surrender terms. However, Assistant U.S. Attorney Howen ended these discussions in October 1992, directing that all communication with Weaver be through his counsel. The "non-tactical" arrest plan that Director Hudson finally approved in the Summer of 1992 was passive almost in the extreme. Indeed, the marshals were willing to wait up to a year for an undercover marshal to gain Weaver's trust. Under this plan, "cover" teams of marshals would arrest Weaver only if he could be taken into custody without harm to his family.[FN276] We do not believe that the Marshals Service acted precipitously or unreasonably in developing its plan to arrest Weaver. The Marshals Service examined many alternatives in devising its course of action. Some options were foreclosed by other agencies; others were thought to be too dangerous. The Marshals Service eventually decided to pursue a non-tactical arrest which posed the least threat of physical violence. However, the Marshals Service recognized that with any plan that it considered, a potential risk of violence existed considering Weaver's threats to resist arrest violently. c. Pressure Exerted on Marshals Service to Arrest Weaver This investigation also examined whether the manner in which the Marshals Service treated the charges against Weaver was affected by improper, external influences. (1) The Court Judge Ryan issued a bench warrant for Weaver's arrest following his failure to appear for trial. When he learned a week later that Pretrial Services had sent Weaver a letter bearing an incorrect trial date, Judge Ryan declined to withdraw the warrant. Judge Ryan, who characterized Weaver as "just another case," told this investigation that he was satisfied that Weaver knew of the February 20 trial date. According to Judge Ryan, it was routine for him to issue a bench warrant when defendants did not appear for trial.[FN277] Judge Ryan denies pressuring the Marshals Service to arrest Weaver. He explained that he already had a full caseload and "was in no hurry to get Weaver arrested." In fact, Judge Ryan said that he thought scarce judicial resources were being wasted on the large number of gun cases brought in federal court and, in particular, he complained about undercover "sting" cases involving firearms. Judge Ryan recalled a few casual conversations with Evans about the Weaver case and once spoke "in jest to Evans [about] when was he going to get his job done," in reference to executing the Weaver bench warrant. However, he claimed that he did not urge anybody "to hurry up and get Weaver before the court."[FN278] Deputy Marshals Hunt and Evans do not believe that the Court exerted undue pressure on the Service,[FN279] and we have found little or no evidence to the contrary. (2) The Media The marshals were sensitive to public opinion about the Weaver case. Several marshals were concerned about the public perception of the marshals and Weaver in Northern Idaho. In October 1991, Hunt wrote: Weaver is losing support locally from his friends and associates. They believe he is becoming very paranoid and suspects everyone is informing on him. The USMS is receiving growing support in the way that we have handled this situation. The community seems to be impressed with the USMS not over reacting and their concerns for the safety of all involved. An approach of even handiness (sic) and concern has began (sic) to impress even hard core Aryan types.[FN280] In March 1992, an article appeared in the Spokesman Review, a newspaper in nearby Spokane, Washington, marking the one-year anniversary of the bench warrant. The Chicago Tribune published a similar article on the same day, which described Weaver as a "folk hero" holding the Marshals Service at bay.[FN281] According to Evans, "pressure from USMS headquarters to effect the arrest of Weaver increased substantially after these two articles."[FN282] He did not believe, however, that Headquarters compelled the marshals to take actions that placed the Weavers or the marshals in undue danger, and this investigation has uncovered no evidence to the contrary.[FN283] Indeed, this regard for local sentiment does not seem to have had a significant impact on the marshals' handling of the case. If anything, it made them more leery of proceeding precipitously. (3) The U.S. Attorney's Office The USAO, in particular U.S. Attorney Ellsworth and Assistant U.S. Attorney Howen, played a large role in shaping the Marshals Service's approach to arresting Weaver. However, Ellsworth and Howen did little, if anything, to facilitate the marshals' assignment. To the contrary, in more than one instance, they made decisions or took actions that made the marshals' task more difficult. (i) Halting Negotiations In October 1991, Mays and Evans began a series of communications with Weaver through intermediaries and exchanged terms of surrender with him. Howen directed the marshals to discontinue contact with Weaver because he was represented by counsel, thus, effectively foreclosing communication. Although we are not convinced that these negotiations would have been successful if pursued, we find that Howen's decision was erroneous and unduly hampered the marshals' efforts. Howen's statement that contacts with a represented person are prohibited are accurate but incomplete. For example, Disciplinary Rule 7-104(A)(1) of the ABA Model Code of Professional Responsibility and its successor, Rule 4.2 of the ABA Model Rules of Professional Conduct, provide that an attorney shall not communicate with a party represented by counsel, unless the attorney has the consent of counsel or is "authorized by law." [FN284] The disciplinary rules have long recognized exceptions to the general prohibition against contacts with represented persons such as to determine if the person is in fact represented by counsel or when counsel has been given prior notice of the communication and consents.[FN285] Howen overlooked these exceptions to the general rule and, in effect, terminated negotiations with Weaver. It was apparent by the Autumn of 1991 that Weaver was not cooperating with his appointed counsel who nine months earlier had told Judge Ryan that he was unsuccessful in contacting Weaver.[FN286] Prior to this time Hofmeister had continued to try to assist the marshals in apprehending Weaver. In July 1991, he met with them and Rodney Willey, an associate of Weaver, in an effort to spur negotiations. On July 10, 1991, Hofmeister wrote Weaver and explained that the firearms charge was relatively minor and that he thought Weaver had a good defense to the charge. Hofmeister added, "the 'cause' in which you believe does not justify the damage you do to yourselves, because the offense Randy is charged with is not much greater than many traffic offenses.[FN287] Hofmeister reported to the marshals that soon after sending this letter he received two letters from Vicki Weaver, in which she state that they were resolute as it was "Yashua's plan" that they live or die on the mountain.[FN288] Hofmeister also contacted Richard Butler, leader of a local Aryan Nations Church, and requested that Butler write a note to Randy Weaver asking Weaver to come down from the mountain and face the weapons charge. [G.J.] [FN289] Notwithstanding these efforts, Weaver still would not talk to Hofmeister, and Hofmeister eventually refused to visit Weaver unless he had an armed escort.[FN290] Weaver even said that he would not surrender to Hofmeister because "[his] rights will be violated."[FN291] Despite these clear indications that Weaver did not want Hofmeister's services, Howen adopted a rigid approach to the issue and considered Hofmeister to be Weaver's counsel until he was relieved by the court in September 1992 after Weaver's surrender. Furthermore, Howen never spoke with Hofmeister about the matter or explored whether Hofmeister would consent to the contact by the Marshals Service.[FN292] Howen was apparently unwilling to explore alternatives that might have led to discussions with Weaver. For instance, he could have instructed the marshals to ask Hofmeister's permission to communicate directly with Weaver. This is not to say that additional exchanges would have been fruitful.[FN293] However, given the gravity of the situation, options that might have promoted a dialogue should not have been disregarded. Howen was aware of the difficulties the Marshals Service faced in capturing Weaver, but, in the face of this evidence, her remained hostile to the negotiation option. His rigid response to the Marshals Service's proposal was deceptively incomplete and effectively frustrated the Marshals Service's efforts.[FN294] Finally, Howen's statement that some of the surrender terms proposed by Hunt and Evans were more appropriate for inclusion in a plea agreement appears disingenuous. There is no evidence that Howen ever discussed devising such an agreement with Weaver's attorney or with anyone else. Indeed, the evidence is to the contrary since Howen told this investigation that it was not his practice to engage in plea bargaining.[FN295] (ii) Other Actions In June 1991, U.S. Attorney Ellsworth discouraged Deputy Director Stagg of the Marshals Services SOG from apprising Judge Ryan of the considerable danger his team faced in arresting Weaver. In March 1992, Director Hudson asked Ellsworth to consider dismissing the warrant against Weaver and reissuing it under seal. Hudson explained that the marshals thought an assault on the Weaver residence would pose unacceptable risk of injury to the Weaver children and Marshals Service personnel. Ellsworth and Howen refused to discuss the indictment, citing Judge Ryan's call for the arrest of Weaver. When Hudson offered to speak to Judge Ryan, Ellsworth did not respond to the offer. We are troubled that the prosecutors so lightly dismissed the offer by the Director of the Marshals Service to speak with Judge Ryan. Indeed, we question their judgment in rebuffing the Director's personal effort to break the year-long impasse. Neither Ellsworth nor Howen advised Judge Ryan of the Marshals Service's concerns. Such inaction on their part was neither reasonable nor well considered under the circumstances. d. Impact of Delay Pending Hudson Confirmation The plan to apprehend Weaver was delayed for three months pending the confirmation of Henry Hudson as the Marshals Service Director. The reconnaissance team expressed frustration over the delay [FN296] because some believed the delay caused a gap in their surveillance intelligence. However, the pending confirmation did not appear to be the only reason for the August reconnaissance mission. Indeed, Roderick and Cooper believed that additional surveillance was necessary to find locations for "cover" teams for the undercover operation.[FN297] The Executive Operational Plan also suggested that surveillance was necessary to place cover teams, an essential component of the undercover plan. Furthermore, Hudson told this inquiry that his approval of the undercover plan was "contingent on the results of the latest surveillance," which was the August 1991 trip to the mountain.[FN298] Consequently, we conclude that the delay occasioned by Hudson's confirmation did not cause the need for additional surveillance but rather, at the most, altered the timing of surveillance that would have been necessary to conduct in any event. 4. CONCLUSION The Marshals Service is required by statute to execute arrest warrants. Consequently, once a warrant was issued for Randy Weaver's arrest, the Marshals Service had no choice but to undertake efforts to apprehend Weaver. Faced with Weaver's repeated threats to violently resist arrest, the Marshals Service explored many alternative plans designed to capture Weaver, but to do so without harming Weaver, his family or the arresting officers. We believe that the Marshals Service acted properly and with due caution in pursuing this purpose. Moreover, we found no evidence that the Marshals Service was pressured by outside entities or was improperly motivated in its efforts. We find, however, that the court and the U.S. Attorney's Office did not appreciate the difficulties facing the Marshals Service, and made no effort to assist the Marshals Service in devising a peaceful solution to the problem. _________________________________________________________________ Released through LEXIS COUNSEL CONNECT LEXIS COUNSEL CONNECT is a communications and information service for attorneys. LCC is managed by American Lawyer Media, L.P. _________________________________________________________________ FOOTNOTES (SECTION IV, PART C) 183 Memo from Ronald Evans to "Duke" Smith, March 18, 1991, at 1. Evans noted that "[d]uring limited occasions when the children have come into controlled contact with other children, they have advocated their parents' doctrine including preparation for the 'Final War' which will be fought on their mountain." Id. Frank Kumnick reported that he had heard Weaver speak of violent confrontations with law enforcement since 1984, that the Weavers had "ideas of martyrdom," and that the Weaver children were all trained in the use of firearms and would protect their father. Report of Investigation by Mays, October 16, 1991, at 2. 184 Testimony of Arthur Roderick, Preliminary Hearing, United States v. Weaver, No. MS-3934, September 10, 1992, at 11-13. 185 Kahl was head of a militant anti-tax group, Posse Comitatus. He was wanted for a probation violation when U.S. Marshals, along with local authorities, attempted to arrest him. A firefight erupted in which two marshals were killed and Kahl and his son were wounded. Kahl evaded arrest following the shooting, but was later killed in a confrontation with authorities. A local sheriff was also killed. "Radical Tax Protester's Legacy Lives," UPI, July 9, 1983; untitled article by Gordon Hanson, Associated Press, February 14, 1983; FD-302 Interview of Evans, October 21, 1993, at 4. Weaver and Kahl "share[d] similar commitment to principle . . . [and] raised their children in a similar fashion. . . ." Memo from Evans to Smith, March 18, 1991, at 1. 186 Evans suggested interrupting the Weavers' water supply. Aerial photography showed that "Weaver does not have a large storage ability for water inside the house . . . . At some point he must endeavor [to] locate the source of the disruption." Id. at 2. On March 21, 1991, Hunt asked Sheriff Whittaker if the marshals could get a state court order to remove the children, but decided that such measures were not feasible and "guaranteed confrontation." Undated U.S. Marshals Service Summary of Chronology of Events. Hunt suspected that someone in the Sheriff's Department was leaking information about the Weaver case. Hunt Sworn Statement, at 8. The inquiry about the Weaver children may have gotten back to the Weavers. In April 1991, Randy and Vicki Weaver told Vicki's father, David Jordison, that they were afraid of being separated from the children by the government. Report of Investigation by Evans, April 24, 1991, at 3.@ 187 FD-302 Interview of John Haynes, October 20, 1993; Memo from Ronald Evans to Duke Smith and Roger Arechiga, April 1, 1991. 188 Stagg characterized Evans' response as "a standard on which is used when one is trying to obtain SOG assistance on a priority basis." FD-302 Interview of Louis E. Stagg, October 21, 1993, at 2. 189 Haynes FD-302, October 20, 1993, at 2. 190 Report of Dr. Walter J. Stenning, May 13, 1991. Dr. Stenning appears to have relied on information already amassed and did not conduct an independent investigation. 191 SOG Special Assignment Log, (June 20, 1991 entry). The log details the daily activities during the trip, but is itself undated. No caves were discovered on the property following Randy Weaver's surrender in August 1992. 192 Id. The Congress was scheduled for July 13, 1991 at Hayden Lake, Idaho. Byerly had information that Weaver's first telephone call following his arrest on the weapons charge was to Richard Butler of the Aryan Nations. 193 In Summer 1992, Whittaker instructed his deputies to stay away from the Weaver property out of concern for their safety. FD- 302 Interview of Whittaker, November 20, 1993, at 4. 194 Marshal Service Activity Report, June 17-24, 1991 (June 21, 1991 entry). 195 Stagg FD-302, at 4-5. The SOG team discussed Evans' proposal for a clandestine operation to arrest Weaver, in which marshals would pose as prospective purchasers of real estate adjacent to the Weaver property. The SOG would arrest Weaver, if he left the house to show the property. Staff thought it would be impossible for SOG to provide the necessary cover in mountainous terrain. Notes of SOG meeting on June 17 & 18, 1991; Stagg FD-302, at 5. 196 Stagg told Ellsworth that if SOG were forced to carry out an assault and something went wrong, he would say that SOG's actions "were at the insistence of [U.S. Attorney] Ellsworth's office." Stagg FD-302, at 5. 197 Hunt Sworn Statement, at 10. 198 USMS/SOG "Law Enforcement Operations Order," June 25, 1991, at 6. The report recommended that no contact be made with any local law enforcement prior to commencement of an operation to apprehend Weaver. No reason was given. However, the marshals were concerned about the "loyalties" of members of the Sheriff's Department, though Sheriff Whittaker himself was not suspected. Hunt Sworn Statement, at 8. Whittaker told this investigation that he operated on a "need to know basis within his department with respect to information received from the marshals about the Weaver case. Whittaker FD-302, at 3. 199 Memo from Ronald Evans to Duke Smith and Tony Perez, September 25, 1991, at 2. 200 Id. 201 Report of Investigation, September 29, 1991. The report itself is not dated, but a Fax cover sheet identifies it as "report of September 29." 202 Report of Investigation, September 29, 1991, at 1, 4-5. Mays contacted a local hospital and OB-GYN practitioners, who agreed to notify them if they were contacted by Vicki Weaver. USMS Item Activity Report, October 9, 1991. Hunt later determined that Randy Weaver would deliver the baby. Report of Investigation by Hunt, October 22, 1991, at 1. 203 Willey told them that there were "guns everywhere you looked inside the [Weaver] cabin" and that the Weavers were sleeping in shifts and taking turns performing guard duty. Report of Investigation by Cluff, July 10, 1991, at 2. 204 Id. By letter, dated August 23, 1991, U.S. Marshal Michael L. Johnson asked Weaver to contact him to resolve the situation. The postmaster reported that someone picked the letter up on September 4, 1991. Memo from Susan M. Thompson to Dave Hunt, September 5, 1991. 205 The Torrences identified a photograph of Kevin Harris as the person they believed they heard Weaver call "Dennis." Report of Investigation by Mays, October 7, 1991; Transcript of Interview of Beverly and Ed Torrence, September 29, 1991, at 7, 22 (hereinafter cited as "Torrence Interview). 206 Torrence Interview, at 23. 207 Weaver also said that Terry Kinnison, Sam Strongblood Woholi, and others were conspiring to kill him so that Kinnison could take his property. Id. at 26. FD-302 Interview of Beverly Torrence, December 22, 1993. 208 USMS Item Activity Report, October 10, 12 & 13, 1991. Hunt learned from the FBI that Weaver had only limited involvement with the Aryan Nations. Report of Investigation by Hunt, October 8, 1991, at 1. 209 Various people were believed to be taking supplies to the Weavers, including the Griders, the Jeppesons, and Vicki Weaver's parents, the Jordisons. Report of Investigation by Hunt, October 10, 1991; Report by Mays, October 12, 1991; Torrence Interview, at 36. 210 This note was unsigned, but all correspondence (unless otherwise identified) was in Vicki Weaver's handwriting. 211 In an October 11, 1991 letter to her cousin, Ronald Jordison, Vicki Weaver wrote, "Race mixing is against the law." FD-302 Interview of Ronald Jordison, August 27, 1992. 212 Memo from Hunt to Evans, October 12, 1991, at 1; Report of Investigation by Mays, October 12, 1991, at 3. 213 Evans learned of this concern during a conversation with Vicki Weaver's father, David Jordison. Jordison told Evans that during a visit with the Weavers in early April, "Randy and Vicki voiced concern for becoming separated during the legal process and expressed commitment to remain together no matter what the Government did. This commitment was expressed to include the children." Report of investigation by Evans, April 24, 1991, at 3; Memo from Ronald Evans to Duke Smith, Tony Perez, John Haynes and Lou Stagg, May 7, 1991, at 2. In July 1991, Hofmeister sent a letter to the Weavers assuring them that the children would not be taken from Vicki, provided she did not use violence against anyone. Letter from Everett D. Hofmeister, to Mr. & Mrs. Randy Weaver, July 10, 1991, at 1. 214 Memo from Hunt to Evans, October 12, 1991. Jordison told Evans that Randy and Vicki believed that Randy had "signed a bond which would allow the Government to take his land and he therefore was not going to leave his property." Report of Investigation by Evans, April 24, 1991, at 2. 215 Magistrate Judge Ayers had explained to Weaver that he would forfeit the property bond only if he failed to appear for trial. Arraignment Transcript, January 18, 1991, at 10-11. Weaver's attorney, Hofmeister, also explained to Weaver that the bond would be forfeited only if Weaver failed to appear in court. Letter from Everett D. Hofmeister, Esq. to Mr. & Mrs. Randy Weaver, July 10, 1991, at 1. 216 Around this time, the marshals learned that Weaver believed that the highest authority in Northern Idaho was the county sheriff and that federal authorities had no jurisdiction over him. Report of Investigation by Mays, October 10, 1991, at 2 (Interview with Sam Strongblood Woholi). 217 Hunt Trial Testimony, May 5, 1993, at 2-9. 218 Letter from Howen to Evans and Hunt, October 17, 1992 (Appendix at 21). 219 Report of Investigation by Hunt, October 22, 1991, at 1-2. Hunt concluded that Weaver had apparently not set "booby traps." 220 Memo from Evans to Smith, March 18, 1991; FD-302 Interview of Michael Moriarty, November 18, 1993, at 3. 221 "Feds Have Fugitive 'Under Our Nose'," Spokesman Review (Spokane), March 1, 1992, at A1. On the same day, an article in the Chicago Tribune described Weaver as a "folk hero" holding the Marshals Service at bay. One week later, the story was picked up by the Associated Press, and articles appeared in the New York Times ("Marshals Know He's There But Leave Fugitive Alone," New York Times, March 13, 1992, at A14) and the San Francisco Chronicle ("U.S. Slow to Nab White Supremacist," San Francisco Chronicle, March 13, 1992). On March 27, 1992, the San Francisco Examiner reprinted the March 8, 1992 Chicago Tribune article ("Standoff With Police Enters Second Year, San Francisco Examiner, March 27, 1992). 222 Evans described the decision to drive to the Weaver property as spontaneous. He said they had no intention of making contact with the Weavers. Evans Trial Testimony, May 3, 1993, at 35. 223 Ruth Rau told Cluff and Evans that the dog had attacked a boy walking along a trail and that Randy Weaver had beaten the dog. Report of Investigation by Evans, March 6, 1992, at 3. 224 Id. at 1-2; Evans Trial Testimony, May 3, 1993, at 50-55. 225 Sworn Statement of William Hufnagel, at 1; FD-302 Interview of Henry Hudson, November 15, 1993, at 2. 226 FD-302 Interview of Michael Johnson, October 5, 1993, at 4. 227 Howen did not recall speaking with Hudson and said that he was not aware that Hudson had made such a request. Howen Interview, Tape 3, at 25. Hudson reported that Ellsworth deferred the majority of the speaking to Howen. Hudson FD-302, at 2. 228 Hudson FD-302, at 2-3. 229 Id. at 2. 230 Id. Hudson said that it was not unusual for Marshals Service Headquarters to assume jurisdiction over difficult cases. 231 Hufnagel Sworn Statement, at 2; Sworn Statement of Arthur Roderick (draft), at 5. 232 Executive Operational Plan (Phase I), March 27, 1992, at 1; Roderick Sworn Statement (draft), at 5-6; Hufnagel Sworn Statement, at 2. 233 Hufnagel Sworn Statement, at 2. The "Executive Operational Plan" (Phase I), said that Deputy Marshal Frank Norris would conduct a medical survey for the operational plan. Norris told this investigation that it was common for a medic to go on an operation in a remote mountain area. However, Deputy Marshal Ron Libby was sent on the mission instead of Norris. Sworn Statement of Frank Norris, at 2. 234 The marshals also noticed a marine band radio antenna on the Weaver cabin. They brought in a radio monitor to determine whether Weaver was communicating by short wave radio. Report of Investigation by Roderick, April 2, 1992; Roderick Sworn Statement (draft), at 7-11. The plan for Phase II contemplated jamming radio communications from or to the Weaver cabin during the arrest. Executive Operational Plan (Phase II), April 10, 1992, at 2 (hereinafter cited as "Phase II Plan"). Terry Kinnison told the Secret Service in 1985 that Weaver had military radio equipment and possibly a police scanner. See Kinnison FD-302, January 21, 1985 and February 5, 195. During Phase I, Roderick and the other marshals looked into rumors that Weaver had worked for the Central Intelligence Agency while in Vietnam as a member of the Special Forces. They found these rumors to be false. Roderick Sworn Statement (draft), at 11. 235 Roderick Trial Testimony, May 10, 1993, at 243-44; Roderick Sworn Statement (draft), at 10. Roderick thought that foliage made it impossible for Harris to see them. He also thought it was possible that the flat tires may have been caused by something in the road he struck earlier. Id. at 10. 236 Daily Report, April 10, 1992. 237 The cameras, which operated on batteries, would provide "real-time" recordings of the Weaver residence and would run during the daylight. Phase II also contemplated the use of pen registers on the telephones of various Weaver associates. Phase II Plan, at 1; Report of Investigation by Roderick, April 4, 1992. 238 Six marshals were already on site: Hufnagel, Libby, Hunt, Mays, Roderick, and Lynda Nafsinger. Phase II Plan, at 7-8. 239 Phase II Plan, at 2. 240 A surveillance post was set up on the Rau property to monitor the video tapes. The post was manned 24 hours a day. Daily Report, April 20, 1992. 241 Hufnagel Sworn Statement, at 4. 242 During the first trip on April 27, 1992, the marshals reached the lower garden area below the Weaver compound. They had to leave, however, when their night vision equipment failed. Roderick Sworn Statement (draft), at 12. On the second trip on April 22, Roderick and Libby located a spot of the west ridge close enough to the compound to see and hear the Weavers talking with Buster Kittel. They also observed someone named Murphy bringing the Weavers supplies. Id. at 13; Report of Investigation by Hunt, April 22, 1992, at 1. 243 Roderick Sworn Statement (draft), at 14. 244 [G.J.] 245 Report of Investigation by Hunt, May 5, 1992; Hufnagel Sworn Statement, at 5; Roderick Sworn Statement (draft), at 14-15. Roderick had feared that something like this might occur and had warned Marshals Service Headquarters that they were sending the surveillance team into the area too often. Id. The charred remains of the camera equipment were found near the Weaver house after Weaver surrendered to authorities on August 31. 246 On April 14, a film crew told the marshals that they might fly over the Weaver property. Daily Report, April 14, 1992. An assistant to the producer of "Now It Can Be Told" said that a helicopter flew over the cabin on April 18. FD-302 Interview of Richard Weiss, September 11 & 18, 1992, but said in an August 1992 interview that no shots had been fired. However, a photographer in the helicopter saw someone gesture at the helicopter and thought he heard two shots on a boom microphone. FD-302 Interview of Dave Marlin, September 16, 1992. Weaver denied that anyone had shot at the helicopter. "Fugitive: No Surrender," Coeur D'Alene Press, May 3, 1992, at 1. Mays reported seeing a helicopter near the Weaver property, but did not hear any shots fired. Report of Investigation by Mays, April 18, 1992, at 1. 247 FD-302 Interview of Michael Weland, August 25, 1992, at 2; Daily Report, May 4, 1992. 248 "Fugitive: No Surrender," Coeur D'Alene Press, May 3, 1992, at 1. 249 Roderick Sworn Statement (draft), at 17; Hufnagel Sworn Statement, at 6; Executive Operational Plan (Draft), May 20, 1992. 250 Roderick Sworn Statement (draft), at 16. 251 Sworn Statement of Larry Cooper, March 7, 1994, at 5. FD- 302 Interview of Tony Perez, November 16, 1993, at 6. 252 Roderick Sworn Statement (draft), at 16; Hudson FD-302, at 3. 253 SOG would provide the cover teams because the Enforcement Division had limited manpower and SOG had the training and equipment for this kind of mission. Roderick Sworn Statement (draft), at 18. 254 Roderick Sworn Statement (draft), at 17; Hufnagel Sworn Statement, at 7. Executive Operational Plan, May 27, 1992, at 4. 255 Hunt had information that Weaver had contacts with law enforcement officers. Jurgensen, therefore, felt it necessary to create a detailed history for his assumed persona, including a citation for a moving violation under his assumed name. Sworn statement of Mark Jurgensen, at 7. Roderick believed that a member of SOG should participate in the undercover operation and, therefore, asked Deputy Marshal Larry Cooper if he would be willing to take part in assessing the undercover operation. Roderick Sworn Statement (draft), at 18. Cooper had recently left the Special Operations Group, and he and Roderick had known each other for many years. Cooper Sworn Statement, at 2-3. 256 Roderick Sworn Statement (draft), at 18. Hudson had decided that the plan would not go forward until he had been confirmed. Hudson FD-302, at 4. This decision does not appear to have been based on operational concerns. 257 Roderick reported that he was in Washington, D.C. with Tony Perez and ran into the Director. Hudson told Roderick "let's go get 'em." Roderick Sworn Statement (draft), at 18. On August 13, 1992, Perez sent Duke Smith a handwritten note: "We're ready to go as of Monday, August 17, 1992." 258 Roderick Sworn Statement (draft), at 18; Jurgensen Sworn Statement, at 8-9. 259 Hudson FD-302, at 3. Roderick told this investigation "I did not believe it was appropriate nor part of my job to pass judgment on the merits of the [underlying] case." Roderick Sworn Statement (draft), at 5. We find this assessment consistent with the statutory duties assigned to the Marshal Service. See 28 U.S.C.  566(a) ("It is the primary role and mission of the United States Marshals Service to . . . obey, execute, and enforce all orders of the United States District Courts . . . .") and  566(c) ("[T]he United States Marshals Service shall execute all lawful writs, process and orders issued under the authority of the United States . . . ."). Hudson and his subordinates asked Ellsworth and Howen about the strength of the charges against Weaver and were told that the case was good. Hudson FD-302, at 3. 260 Sheriff Bruce Whittaker seemed to prefer this option. He was quoted as saying, "It's just as bad for [Weaver] sitting up there on that mountain as if he was sitting in prison somewhere. . . . He's on his own self-imposed house-arrest up there, and it isn't costing anybody any money." "Feds Have Fugitive 'Under Our Nose'" Spokesman Review (Spokane), March 1, 1992, at A1. 261 See Perez FD0392, at 5. See also Note 315, infra. 262 We note that the Idaho District referred the case to the marshals, in part, because it did not have the financial resources or manpower to carry out the operation. See Hunt Sworn Statement, at 13. We have asked the FBI to determine how much the Marshals Service spent on the Weaver case, but have not yet received the calculation. 263 See Report of Dr. Walter J. Stenning, May 13, 1991. 264 Roderick Sworn Statement (draft), at 16-17; Hudson FD-302, at 3; Cooper Sworn Statement, at 5. See FD-302 Interview of Tony Perez, November 16, 1993, at 6-7. 265 Hunt Sworn Statement, at 2, 6; Mays FD-302, October 5, 1993, at 2, 4. 266 Supplemental Memo from Evans to Perez, February 20, 1991, at 2. 267 Report of Investigation by Mays, October 16, 1991, at 2. 268 A reporter for a local newspaper had told Cluff that Randy Weaver and his wife and children were "waiting at the. cabin, and are prepared to make a final stand." Report of Investigation by Evans, February 28, 1991, at 1. 269 Roderick Sworn Statement (draft), at 11. 270 Letter to the "Servants of the Queen of Babylon," March 5, 1991; Report of Investigation by Hunt, March 6, 1991. 271 Kahl evaded arrest and was killed in a second confrontation. A local sheriff was also killed in that conflict. "Radical Tax Protester's Legacy Lives," UPI, July 9, 1983; Untitled article by Gordon Hanson, Associated Press, February 14, 1983. 272 Memo from Evans to Smith, March 18, 1991, at 1. Evans FD- 302, October 21, 1993, at 4. As a result of the Kahl case, the Marshals Service approached investigations of armed individuals motivated by strong personal belief "in a much more methodical and deliberate manner." In such cases, "[n]othing could be taken for granted," and the marshals would not go "charging in" to make an arrest. Perez FD-302, at 2. 273 Memo by Evans to Perez, March 12, 1991, at 2. 274 FD-302 Interview of Michael Johnson, October 5, 1993, at 4; Hudson fd-302, at 2-3. The marshals also considered other "non- tactical" solutions, such as interrupting water and power supplies to the cabin and abducting Vicki or Sara Weaver, while they were in the "birthing shed" during their menstrual cycles. Cooper Sworn Statement, at 2-3. Executive Operational Plan (Draft), May 20, 1992, at 4. 275 USMS Item Activity Report, October 10, 12, & 13, 1991. 276 Evans proposed a comparable plan in June 1991, in which two undercover marshals would pose as prospective purchasers of real estate adjacent to the Weaver property. Notes of SOG meeting on June 17 & 18, 1991; Stagg FD-302, October 21, 1993, at 5. SOG concluded that it would be impossible to provide adequate cover in the mountainous terrain. Id. 277 FD-302 Interview of Honorable Harold Ryan, November 9, 1993, at 1, 2. 278 Id. at 2-4. Marshal Johnson said that, during the week of March 11, 1001, Judge Ryan reminded [Johnson and Evans] of the need to arrest Weaver and get him into his courtroom." Johnson FD-302, October 5, 1993, at 3. Ellsworth and Howen denied requests from the Special Operations Group and Director Hudson to dismiss the Weaver indictment for failure to appear, purportedly because Judge Ryan wanted Weaver arrested. Ellsworth and Howen also rebuked offers by SOG and Hudson to meet with Judge Ryan to explain why they thought it advisable to dismiss. Judge Ryan told this investigation that he was never contacted about this matter. The only conversations he had about Weaver were informal talks with Evans. Ryan FD-302, at 6. 279 Hunt Sworn Statement, at 13; Evans FD-302, at 2. 280 Report of Investigation by Hunt, October 22, 1991, at 2. Evans was also concerned that Weaver was attempting to gain support in the community by having supporters circulate copies of Richins' letter. Memo from Evans to Perez, February 27, 1991, at 2. 281 One week later, the story was picked up by the Associated Press and articles appeared in the New York Times (March 12, 1992) and the San Francisco Chronicle (March 13, 1992). On March 27, 1992, the San Francisco Examiner ran the Chicago Tribune article. 282 Evans FD-302, at 3. 283 Director Hudson claims that media attention "did not change the pace of the investigation, but sharpened the concern of the community." Hudson FD-302, at 2. 284 This limitation includes communications made through third parties. See ABA Model Rule 8.4(1). 285 The Department of Justice has historically authorized limited contacts to determine whether a person believes counsel is representing his or her interests. See Memorandum from Attorney General Dick Thornburgh, "Communication with Persons Represented By Counsel", June 9, 1989. 286 Hearing Transcript, February 20, 1991, at 2-6; Ryan FD- 302, at 1. Hofmeister had sent four letters to Weaver's post office box advising him of the February 20 trial date and requesting a meeting. Hofmeister did not receive a reply and the letters were not returned. Hearing Transcript, at 2-6. Report of Investigation by Cluff, March 5, 1991. 287 Letter from Everett Hofmeister, Esq. to Mr. & Mrs. Randy Weaver, July 10, 1991, at 2. This letter was found in the Weaver cabin, with notations, during a search in September 1992. 288 See Report of Investigation by Hunt, September 5, 1992. 289 [G.J.] ; see Report of Investigation by Evans, July 10, 1991, at 1-2. 290 Report of Investigation by Hunt, October 22, 1991, at 5. There is no indication Hunt communicated this opinion to Howen. 291 Report of Investigation by Cluff, July 10, 1991. 292 Howen Interview, Tape 4, at 18-21. 293 On March 27, 1992, U.S. Marshal Johnson telephoned Alan Jeppeson and, in apparent disregard of Howen's order, asked Jeppeson to ask Weaver for conditions under which he would surrender. Jeppeson told Johnson that Weaver's response was "stay off his mountain." Report of Johnson, April 1, 1992. 294 To Johnson, it seemed that "every time [the marshals] attempted to take any type of action, they experienced a conflict with the United States Attorney." Johnson FD-302, August 17, 1993, at 2. 295 Howen Interview, Tape 2, at 2. 296 Roderick Sworn Statement (draft), at 15, 20. 297 Id. at 23; Cooper Sworn Statement, at 6. 298 Hudson FD-302, at 4. _________________________________________________________________