[G.J.] [Editor's Note: Pages 229-232, all of Section G, were omitted from the copy provided to LCC and circulated in-house at the Department of Justice by DOJ editors. We have reprinted the table of contents as an outline of the material covered in that Section.] IV. SPECIFIC ISSUES INVESTIGATED G. FBI Internal Review of HRT Shots Taken on August 22, 1992 229 1. Introduction 229 2. Statement of Facts 229 3. Discussion 230 4. Conclusion 232 _________________________________________________________________ IV. SPECIFIC ISSUES INVESTIGATED H. LAW ENFORCEMENT OPERATIONS AT RUBY RIDGE FROM AUGUST 22, 1992 UNTIL AUGUST 31, 1992. 1. INTRODUCTION Following the death of Deputy Marshal Degan, the FBI assumed primary jurisdiction over the investigation of the events relating to his death. The FBI's handling of the investigation at Ruby Ridge has been criticized on several grounds: that the FBI's command and control of the crisis site was not handled properly in that insufficient emphasis was placed on negotiations to resolve the crisis; that the FBI failed to coordinate law enforcement components properly; and that false information was knowingly given to the media to cover up the cause of Sammy Weaver's death, Vicki Weaver's death, and Kevin Harris' and Randy Weaver's injuries. Soon after learning on August 21, 1992 about the shooting incident at Ruby Ridge, U.S. Attorney Maurice Ellsworth authorized Assistant U.S. Attorney Ronald Howen to travel there to assist law enforcement personnel with legal matters. Howen arrived late in the evening of August 21st and spent the next ten days with law enforcement personnel who had responded to the crisis. Questions have been raised as to whether it was appropriate for Howen to have been at Ruby Ridge and whether some of his activities were improper and conflicted with his role as the federal prosecutor in the case. Foremost among these allegations is that he was an active participant in tactical decisions, negotiations, and searches which transformed him into a witness in the investigation at Ruby Ridge. 2. STATEMENT OF FACTS a. Removal of Law Enforcement Personnel From the Mountain Following Horiuchi's Shots When the personnel carriers were near the Weaver cabin delivering the initial announcement and installing telephone communications equipment, worsening weather conditions were reported on the hill. HRT Gold Team leader Love reported to HRT Sniper Coordinator Hazen that visibility was poor and getting worse and that optical equipment was beginning to fog. Several of the snipers were suffering from hypothermia. [FN771] Hazen recommended to HRT Commander Rogers that the sniper/observers be removed from their positions and return to the lower command post.[FN772] Rogers and Special Agent in Charge Glenn agreed to withdraw the sniper/observers and establish an inner perimeter around the cabin area the following morning. Glenn concluded that the weather and poor visibility made it nearly impossible even for people with knowledge of the terrain, like the Weaver/Harris group, to move about without being detected. On the basis of the available intelligence, Glenn believed that the only way that Weaver and his group could leave the cabin area was by a road that passed through the FBI command post area. The sniper/observers were withdrawn after dark on Saturday evening, August 22. During the night, Glenn deployed FBI SWAT teams around the command post and controlled access to the road leading to the Weaver compound. He was confident that these measures would prevent any of the Weaver group from fleeing.[FN774] According to Hazen, the sniper/observers were also withdrawn for debriefings on the tactical and geographic information they had gathered while observing the Weaver compound.[FN775] Upon returning to the command post after the shooting, the HRT sniper/observers were debriefed and were instructed to document their actions and observations in FD-302 investigative reports. Glenn had reported the shooting incident to FBI Headquarters earlier in the evening. b. Command and Control Structure The death of Deputy Marshal Degan entailed violations of federal criminal statutes that gave the FBI primary jurisdiction over the investigation.[FN776] Eugene Glenn, Special Agent in Charge of the FBI's Salt Lake City Division, was assigned primary responsibility for managing the federal law enforcement response to the crisis. He was initially assisted by William Gore, Special Agent in Charge of the FBI's Seattle Division. As of August 23, Glenn was also assisted by Robin Montgomery, Special Agent in Charge of the Portland Division. In addition to intelligence gathering, the primary concerns of local and federal law enforcement were to rescue the surviving marshals, along with the body of Deputy Marshal Degan, apprehend the subjects without further loss of life, and prevent their reinforcement by sympathizers. State and local officers and a few representatives of the Marshals Service and the border patrol were the first law enforcement officials on the scene. two FBI agents, Larry Wages and Thelma Campos, who were attending personal matters in the area, heard about the shooting and responded. Soon after, a group of interested citizens began to gather. Following Deputy Marshal Hunt's calls for emergency assistance, in which he reported that a Deputy Marshall had been shot and that others were pinned down, local law enforcement agencies responded promptly and established a controlled access point at the bridge leading to the Weavers' cabin. Idaho State Police officers and a dispatcher arrived before their local commander, Captain E. Glen Schwartz arrived at 3:00 p.m. Captain Schwartz described the command structure as a "unified command" with each agency in charge of its own personnel.[FN777] On August 21, 1992, Idaho Governor Cecil Andrus declared a state of emergency in Boundary County, proclaiming that: the nature of the disaster is the occurrence and the imminent threat of injury and loss of life and property arising out of the standoff situation in Boundary County.[FN778] This proclamation allowed law enforcement agencies on the scene to use certain emergency services, such as Idaho National Guard resources.[FN779] Although Deputy Marshal Hunt was viewed as having the predominant law enforcement interest because the case was his and he was responsible for the marshals on the mountain, local law enforcement leaders believed that Hunt's decision making capacity had diminished due to stress. They have asserted that they would not have permitted Hunt to make ill-advised decisions.[FN780] Glenn arrived at the crisis site at approximately 9:30 p.m. on Friday, August 21, followed by Gore approximately one and a half hours later. They both arrived before the FBI's Hostage Rescue Team (approximately 50 agents) and the Marshals Service Special Operations Group (approximately 58 agents). In Glenn's view, the Idaho State Police, commanded by Major Strickfaden, appeared to be coordinating the law enforcement response before his arrival. [FN781] When Glenn arrived, the primary goal of the law enforcement effort was to rescue the marshals on the mountain and stabilize the situation until additional federal resources arrived. Glen ordered that a perimeter be established around the command post/staging area to ensure safety, to prevent Weaver and his associates from coming into the area during the night, and to contain a crowd of Weaver sympathizers and supporters.[FN782} Glenn and Gore were unfamiliar with the crisis site. The command post/staging area was located in a flat area at the base of the mountain on which the Weaver cabin was located. Glenn and Gore directed FBI technical personnel to establish telephone communications at the command post.[FN783] Once the command post was secure, Glenn and Gore set about gathering information about the Weaver group. When Richard Rogers, Commander of HRT, and Duke Smith, Associate Director of the U.S. Marshals service, arrived early Saturday morning, August 22, Glenn and Gore briefed them on the situation.[FN784] The command post log entry for August 26 shows that power to the cabin was cut off on Saturday night, August 22. On Sunday morning, a 360 degree inner perimeter around the Weaver cabin site and a forward command post near the cabin were established, and they were maintained for the remainder of the crisis.[FN785] On August 23, Special Agent in Charge Robin Montgomery from the FBI's Portland Division reported to the Ruby Ridge site and took charge of the forward command post near the cabin were established, and they were maintained for the remainder of the crisis.[FN785] On August 23, Special Agent in Charge Robin Montgomery from the FBI's Portland Division reported to the Ruby Ridge site and took charge of the forward command post in alternating twelve-hour shifts with Gore. Rogers and the hostage negotiators were also in the forward command post with Gore and Montgomery. The forward command post was the central point for both tactical and negotiations efforts.[FN786] Investigative and intelligence functions continued at the rear command post, but the establishment of the forward command brought about a change in the control of the massive resources gathered at Ruby Ridge. Glenn remained at the rear or lower command post to marshal the many law enforcement agencies, coordinate with the leaders of those agencies, and maintain liaison with FBI Headquarters and the press.[FN787] Glenn retained ultimate approval authority for negotiation and tactical efforts proposed by his subordinates. If emergency tactical action were necessary, Glenn authorized Gore and Montgomery at the forward command post to act. A representative of the Marshals Service was also assigned to the forward command post to ensure immediate access to information gathered during the previous fugitive investigation that might assist in formulating negotiation strategies.[FN788] c. Tactical Operations and Discovery of Sammy Weaver's Body On Sunday morning, August 23, Rogers, with Glenn and Gore's approval, took two teams of HRT personnel to the vicinity of the Weaver compound in armored personnel carriers. Using a bull horn, Rogers made repeated announcements to the Weaver cabin for about 30 minutes to convince the occupants to negotiate.[FN789] FBI Hostage negotiator Frederick Lanceley asked to accompany Rogers, but Rogers told him that he was not needed.[FN790] As a consequence, Lanceley was not present during this attempt to communicate with those inside the cabin.[FN791] According to Lanceley, on Sunday afternoon, after Rogers and his team returned, Rogers told Lanceley that he had "delivered an ultimatum to the effect that if they don't come out, [Rogers] would begin to knock down the outbuildings and then start knocking down their house."[FN792] Rogers asserted that he now had to knock down the buildings because he could not back down from the ultimatum. [FN793] Lanceley told Rogers that the destruction of the buildings would limit negotiations strategies.[FN794] FBI hostage negotiator E. MacArthur Burke was astounded upon hearing that the outbuildings were to be removed because this might escalate the situation before negotiations had begun. Although he was aware of the tactical advantage to their removal, he agreed with Lanceley that it would be detrimental to the negotiations effort.[FN795] On Sunday evening, August 23, with the approval of Glenn, Gore, and Montgomery, personnel carriers began to remove outbuildings, such as the birthing shed and the water tanks, near the Weaver cabin to protect tactical personnel, should it become necessary to mount an emergency assault on the Weaver cabin. Removal of the outbuildings would also tighten the inner perimeter around the cabin by removing visual and physical obstructions to HRT and SOG personnel.[FN796] During the clearing of the birthing shed, the body of Sammy Weaver was discovered unexpectedly.[FN797] There is no evidence that law enforcement personnel knew of Sammy Weaver's death before this discovery.[FN798] FBI negotiators reported to the FBI's Special Operations and Research Unit on the morning of August 24 that "the mood among the commanders and HRT appeared to be to mount an assault on the Weaver residence no later than the evening of 8/24".[FN799] The discovery of Sammy weaver's body brought about renewed efforts to negotiate with the Weaver group. The discovery also brought aggressive tactical actions, such as removal of the outbuildings, to an end. It was believed that the Weavers would break their silence to express their wishes for the handling of their son's body and funeral arrangements. However, there was no response from the Weaver cabin.[FN800] d. Change from Rules of Engagement to the FBI Standard Deadly Force Policy On Wednesday, August 26 at 10:53 a.m. (PDT), the Rules of Engagement in effect since the arrival of the Hostage Rescue Team were revoked. At Glenn's direction, the FBI's standard policy became the guideline for the use of deadly force by law enforcement personnel deployed on the cabin perimeter.[FN801] On Sunday evening, August 23, after Sammy Weaver's body had been discovered, Glenn began to reevaluate the intelligence he had received at the command post. The cabin's occupants had not acted aggressively since the apparent attempt to fire on the helicopter about 24 hours earlier. A personnel carrier had been to the front of the cabin and had not been challenged, and outbuildings had been demolished without fire from the cabin. An inner perimeter had been established, and booby traps had not been found. Glenn believed that law enforcement personnel on the scene were adequately protected. He concluded that those in the cabin were not as threatening as originally believed or that their resistance was weakening. He did not entirely dismiss their propensity for violence, but concluded that the threat had diminished by Sunday evening.[FN802] For these reasons, Glenn changed the Rules of Engagement to the FBI's standard deadly force policy. He did not solicit Headquarter's advice on the change because it was not necessary. [FN803] Glenn stated that he made the change some time around midday Monday, August 24. This contradicts the HRT sniper log, which shows that the change occurred on Wednesday, August 26. The Strategic Information and Operations Center ("SIOC") Log at FBI Headquarters reflects the change on August 26 at 12:30 p.m. EDT. Within a day or two of the discovery of Sammy Weaver's body, Glenn told Gore that FBI agents assigned to the crime scene had reported that some of the early assumptions about the Degan shooting were in question and had not been substantiated by the crime spans. Glenn also told Gore that the debriefings of the marshals involved in the shooting and a review of the BATF case had raided other questions. According to Gore, the entire predicate of the federal effort was in question. Gore observed that the crisis situation had been stable for several days and that the Weaver group had not engaged in aggressive action. Glenn then decided to return to the FBI's standard policy on the use of deadly force. [FN804] Robin Montgomery arrived at the crisis site on August 23 and learned of the Rules of Engagement. Montgomery believed that the Rules were close to an authorization to shoot on sight. He did not believe that the Rules supported the negotiation effort, and he discussed them with Glenn, Gore, Duke Smith of the Marshals Service, and possibly two other members of the Marshals Service. Shortly thereafter, the Rules of Engagement were changed. [FN805] Rogers stated that by Wednesday the level of threat had diminished because the subjects had fired no shots since the original firefight and they had not committed any aggressive acts. HRT personnel had established well protected positions, completely surrounding the Weaver cabin. The subjects posed no immediate threat, and consequently the Rules of Engagement were changed to the FBI's standard deadly force policy. Rogers denied that the revocation of the Rules was related to the discovery of Sammy Weaver's body.[FN806] According to an entry in the FBI SIOC Log at Headquarters, on Wednesday, August 26, 1992, at 12:30 p.m. (EDT), Potts and Glenn agreed to change the Rules of Engagement to FBI standard deadly force policy, effective 1:00 p.m. (EDT).[FN807] There is no record of the decision to change the Rules of Engagement in the FBI's command post log at Ruby Ridge. The HRT sniper/observer log shows that Rogers changed the Rules of Engagement to the FBI standard deadly force policy on Wednesday, August 26, at 10:53 a.m. and that each sniper/observer position acknowledged the change at 10:54 a.m.[FN808] e. Evidence of Vicki Weaver's Death On Friday, August 28, at approximately 5:00 p.m., Bo Gritz, a nongovernmental negotiator, started a series of discussions that ultimately led to the resolution of the crisis without additional violence. Gritz was the first person to be told that Weaver's wife was dead and the first aside from those in the cabin to observe Vicki Weaver's body. Law enforcement personnel state that the initial evidence that Vicki Weaver was dead came in the first few moments of the first conversation Gritz had with Randy Weaver on August 28. [G.J.] [FN809] This conversation also confirmed that Harris had been wounded by HRT rifle shots on August 22. At the conclusion of the conversation, Gritz briefed Rogers and Glenn. Later that day, he also informed a group of sympathizers gathered near the crisis site. The efforts of Gritz and Jack McLamb, another nongovernmental negotiator, were successful, and on Sunday, August 30, between mid-morning and noon, Harris agreed to surrender, an important development for several reasons, not the least of which was that for the first time Gritz talked face-to-face with Randy Weaver. When Gritz and McLamb met Harris at the rear door of the residence and helped hi down the stairs, the cabin door opened, exposing Weaver and the interior. Later, Gritz saw Vicki Weaver's body on the kitchen floor, partially under a table.[FN810] A cloth had been placed over the top half of the body, leaving the lower half exposed. The feet were positioned near the front door, with the head and torso toward the interior. The manner in which the body was positioned was consistent with a backward fall from the front doorway. It appeared to Gritz that the body had not been moved after the shooting. [G.J.] [FN811] A review by the FBI of all audio and video tapes of the events at Ruby Ridge shows that no information had been received by the FBI or other law enforcement personnel about Vicki Weaver's death before Gritz' conversation with Randy Weaver on August 28. Interviews of personnel from the FBI, U.S. Marshals Service, Idaho State Police, Bureau of Alcohol, Tobacco and Firearms, and local agencies at the scene during the standoff do not reveal any earlier knowledge of Vicki Weaver's death. No notations concerning Vicki Weaver's death were found in any official log of the events or in any other records made during the standoff. [FN812] f. Initial Steps Toward Negotiation On August 22, Glenn and Rogers focused much of their energy on the procurement and outfitting of two armored personnel carriers with a telephone and enough line to reach the command post from one Weaver compound, a distance of approximately one mile. Glenn believed that resolution of the crisis through dialogue and negotiations was the most desirable and usually the safest outcome. He stressed that the FBI tried every proposed negotiation option from the beginning of the crisis.[FN813] Gore also believed that the objective was peaceful resolution of the crisis. In his view, tactical personnel first had to establish a means to communicate with the Weaver group in the cabin, which did not have a telephone. The objective of the operations plan was to establish a perimeter for containment of the crisis site and to get close enough to establish communications. [FN814] FBI senior hostage negotiator, Frederick Lanceley was notified of the situation at Ruby Ridge Friday afternoon, August 21. He traveled with the main group of HRT personnel from the Washington, D.C. area to Idaho, arriving early in the morning on Saturday, August 22. He received no request for consultation on negotiations until mid-afternoon Saturday, August 22, when he was called to the command post and asked to write a negotiations addendum to the proposed operations plan. He was not consulted before the submission of the initial plan, which FBI Headquarters rejected because it did not contain a negotiations component.[FN815] Early in the crisis, Lanceley was not a party to the discussions among command personnel. Nevertheless, he believed that they intended to resolve the crisis tactically. He was unaware of discussions between Glenn and other command personnel concerning negotiations. He strongly criticized the tactical actions taken, and he regretted not being more aggressive in voicing his objections on Saturday, August 22, and again on Sunday evening, August 23, when he opposed removal of the outbuildings. [FN816] The initial negotiations strategy was to approach the Weaver cabin, read a surrender statement over a loudspeaker, and attempt to resolve the crisis through the surrender of the Weaver group. The surrender announcement was to be read after tactical personnel had established a 360-degree perimeter around the Weaver compound. If the Weaver group did not surrender following the announcement, a hostage phone was to be delivered and telephone wire was to be laid down the mountain from the cabin to the command post. Immediately after Horiuchi's shots, HRT Commander Richard Rogers decided to drive two armored personnel carriers to the cabin area to deliver a telephone and establish communications with those inside the cabin.[FN817] When the carriers were within 30 to 50 feet of the cabin, Lanceley made the following surrender announcement at approximately 6:30 p.m. on Saturday night: Mr. Weaver, this is Fred Lanceley of the FBI. You should understand that we have warrants for the arrest of yourself and Mr. Harris. I would like you to accept a telephone so that we can talk and work out how you will come out of the house without further violence. I would like you or one of your children to come out of the house, unarmed, pick up the telephone and return to the house.[FN818] There was no response to Lanceley's message. The telephone was placed approximately twenty yards from the cabin. Both carriers left, laying wire for the phone as they returned down the mountain. Continuous attempts to contact the Weaver group by ringing the telephone were made throughout the night. There was no response. g. Continuing Efforts of the FBI Hostage Negotiators In mid-morning, Sunday, August 13, following the return of the HRT sniper/observers to their positions, Rogers took the two carriers back to the position near the Weaver cabin where they had been the previous night. The telephone was in the same position they had left it the night before. This required all communication with the cabin to be made by bullhorn or megaphone. Rogers spoke to the group in the cabin for approximately 30 minutes encouraging them "to come out, pick up the phone, establish dialogue, and let's move on with this and establish some kind of communications". [FN819] Rogers claims to have heard no response from the Weaver cabin. Two assault teams were deployed from the carriers to establish a 360-degree cordon around the cabin. According to Rogers, the assault personnel could not be seen from the cabin. After this deployment, between 20 and 21 assault personnel were around the cabin continuously until the resolution of the crisis on August 31.[FN820] The nature of Commander Rogers' message to the Weaver group on Sunday morning is at issue. According to Lanceley, before Rogers and his team ascended the mountain, Lanceley asked Rogers if Lanceley could accompany him to the cabin area. Rogers told Lanceley that he would not be needed.[FN821] [G.J.] [G.J.] [FN822] [G.J.] There was no response from the cabin.[FN823] During Bo Gritz' discussions with the Weaver group later in the week, Weaver and his daughters told Gritz that they had developed an intense hatred for Lanceley because of remarks directed to Vicki Weaver and questions he asked about what they were having for breakfast. Weaver said these remarks "pissed them off" and strengthened their resolve in the cabin."[FN824] On August 21, the HRT supervisors told behavioral scientists in the FBI's Special Operations and Research Unit about the HRT deployment and provided them with the limited information available. On August 23, the behavioral scientists were given incomplete additional information. When FBI Supervisory Special Agent Clint Van Zandt developed the profile, he was not aware that shots had been fired on August 22; that Vicki Weaver had been killed [FN825]; or that anyone had been wounded. He said that the shooting incident would affect the way in which the Weaver family perceived attempts by the government to negotiate.[FN826] The behavioral scientists sent an assessment to the crisis site on August 24. This assessment included several observations and suggestions for dealing with the Weaver group: the Weavers will not trust negotiators connected to the federal government; Randy Weaver's resolve would be strengthened if he has contact with local supporters; third parties should be considered to assist the negotiations; the Weaver group, including Vicki Weaver, her children, and Harris, could be expected to meet any attempt to enter the residence with armed resistance; if Vicki Weaver believed that efforts to overwhelm them physically or otherwise drive the Weavers from their home would be successful, she could be expected to kill the children and commit suicide; as those inside the cabin became fatigued, the Weaver group could resort to a suicide attack directed against federal law enforcement officials, if they believed the perimeter was too close to the cabin. On Tuesday, August 25, FBI negotiators continued their efforts, which included statements directed at Vicki Weaver and expressing concern for the family's welfare. The Weaver group was repeatedly asked to surrender, and they were assured that they would not be harmed. There was to response.[FN827] The command post log states that water to the cabin was cut off on August 25. The first contact with Randy Weaver occurred on Wednesday, August 26. In mid-morning, Lanceley told Weaver that the personnel carrier would approach the cabin to transfer the telephone to the robot and that the robot would approach the cabin with the telephone to improve communications weaver was also told that the robot would try to push the telephone through a cabin window, breaking the cabin window in the process. Weaver shouted "Get the fuck out of here" and made other statements that could not be understood. In the afternoon, Weaver said that he would not take the telephone. h. Efforts of Nongovernmental Negotiators [G.J.] [FN828] [G.J.] [FN829] [G.J.] [FN830] On Friday, August 28, Marnis Joy again unsuccessfully tried to establish contact with her brother. Later that day, Randy Weaver stated that he would talk to Bo Gritz.[FN831] Glenn approached Gritz, and he offered to assist in negotiating with Weaver. Gritz convinced Glenn that because Gritz and Weaver had a common background in the Special Forces, Gritz had a better chance of talking to Weaver than anyone else on site. After conferring with Rogers and Headquarters, Glenn agreed to Gritz' participation. [FN832] On Friday afternoon, Gritz was briefed by Rogers and FBI negotiators. At dusk, he went up the mountain toward the Weaver cabin.[FN833] After trying unsuccessfully to communicate with Weaver using the robot and then a bullhorn from the personnel carrier, Gritz walked to the cabin. Through a window, he began to talk to Weaver. When Gritz asked if everyone was "OK," Weaver said, "No...My wife was shot and killed last Saturday."[FN834] At that time Gritz also learned that Weaver and Harris had been wounded. [FN835] Law enforcement components at Ruby Ridge told us that they first learned that Weaver, Kevin Harris, and Vicki Weaver had been shot and that Vicki Weaver was dead from Gritz' conversation with Weaver on August 28.[FN836] On Saturday morning, August 19, Gritz received permission to return to the Weaver residence with Jackie Brown, a friend of the Weaver family, and Chuck Sandelin, a local minister. Weaver yelled at Sandelin to get off the property. Sandelin left and was not used in negotiations again.[FN837] Rogers tried to discourage Jackie Brown from approaching the cabin. According to Brown, Rogers told her that, if she did not come out of the Weaver cabin within a reasonable time, he would assume that she had joined the Weavers or had been taken hostage and that HRT may have to come in to rescue her.[FN838] Gritz and Brown went to the cabin. Gritz spoke throughout the day with Weaver, his daughters, and Harris through the cabin wall. Gritz believed by the sound of Harris' voice that he was in need of medical attention. In addition to suggesting that Harris needed medical attention, Gritz conversed casually with Weaver about the military, spoke philosophically to him, and prayed with him. [FN839] On Sunday morning, Gerald McLamb, a retired Phoenix police officer who was assisting Gritz in his campaign for President, began assisting Gritz in the negotiations. Both negotiators focused their conversations with Weaver and Harris on Harris' need for medical attention. In mid-morning, Harris decided to surrender.[FN840] Gritz resumed conversations with Weaver, who agreed to the removal of Vicki Weaver's body from the cabin. When Gritz and Brown returned to the cabin with a body bag, Gritz wore a transmitting device that allowed the forward command post to monitor his conversation. For security reasons, Rogers insisted on this precaution. According to Mr. Gritz, Vicki Weaver's body was positioned in the location or very near the location where she fell at the time of her death. Brown and Gritz carried Vicki Weaver's body to the forward command post.[FN841] After delivering the body, Gritz saw Brown return to the cabin with some water and begin cleaning blood from the floor. Brown reported that, at her request, she was given two five gallon buckets of water, three white bath towels, and a roll of paper towels. Brown said she cleaned Vicki Weaver's blood from the cabin floor because she did not want the Weaver girls to have "to deal with cleaning the blood of their mother."[FN842] Gritz resumed speaking with Weaver and learned that the Weaver family was convinced that the law enforcement personnel wanted to kill each of them.[FN843] Weaver told Gritz that he wanted to surrender, but that his daughters would not let him. While in the cabin Gritz noted the armaments available to the Weavers and the configuration of the cabin structure. He relayed this information to Rogers.[FN844] According to Gritz at some point on Sunday, Rogers told him that, regardless of the day's events, HRT was going to assault the residence on Monday and that the assault would involve blowing out the windows and doors. Gritz disagreed with this plan and was disturbed because he felt negotiations were going well and because he was concerned about the possibility of injuring those in the cabin. Gritz discussed strategy with Rogers that involved "physically taking down" Weaver and his daughters, if an assault was initiated, to protect them from injuries.[FN845] both Gritz and McLamb felt uncomfortable with the assault strategy, but agreed it was the only way to protect the Weavers from being "killed in a tactical assault by HRT."[FN846] At trial, Rogers testified that he vetoed an arrangement with Gritz and McLamb to overpower Weaver, if he did not surrender. [FN847] On Monday, Gritz and McLamb returned to the Weaver residence. Gritz had the robot and the APC move away from the cabin. After contacting attorney Gerry Spence, Gritz told Randy Weaver that Spence would represent him. Gritz also carried a handwritten note from Assistant U.S. Attorney Howen to Weaver that agreed to allow Weaver to present his account of the situation to a grand jury. The Weaver family surrendered on August 31. [FN848] i. Decision to Send Howen to Ruby Ridge In the afternoon of August 21, U.S. Marshal Michael Johnson informed U.S. Attorney Ellsworth about the shooting at Ruby Ridge.[FN849] Shortly thereafter, Ellsworth informed Howen, the Assistant U.S. attorney to whom the Weaver matter had been assigned, about the incident. The Marshals Service gave Ellsworth and Howen an additional briefing.[FN850] Based on this information, Ellsworth and Howen believed that a team of marshals had been involved in an undercover operation at Ruby Ridge, that there had been a confrontation in which Deputy Marshal Degan had been killed in an exchange of gunfire, and that several marshals were still "pinned down" at the scene of the shooting.[FN851] After having been apprised of the crisis, Howen drafted an application for a search warrant with a supporting affidavit. [FN852] Howen soon realized that it would be difficult to draft this affidavit as well as subsequent applications in Boise when the supporting factual information was 400 miles away at Ruby Ridge. Howen suggested to Ellsworth that he travel to Ruby Ridge. Ellsworth agreed.[FN853] Ellsworth envisioned that, at Ruby Ridge, Howen would assist in drafting applications for search warrants and supporting affidavits, as well as prepare applications for electronic surveillance. He did not intend that Howen play an investigative or tactical role.[FN854] Although Ellsworth did not recall giving Howen specific directives, he noted that the standing directive in his office was that assistants should not engage in activities that would make them a witness in a case.[FN855] Howen believed that his presence at the scene would allow him to see matters first hand and prepare his case. In addition, Howen considered himself to be the representative of the United States Attorney and as such responsible for reporting to him about events at the scene.[FN856] j. Howen's Activities at Ruby Ridge At Ruby Ridge, Howen was involved in preparing criminal complaints, applications for arrest warrants, search warrants, and emergency electronic surveillance applications with supporting affidavits.[FN857] He denied that he assumed an investigative role or that he directed the activities of the FBI. Howen insisted that he did not conduct any interviews while at Ruby Ridge.[FN858] Nonetheless, Howen conceded that he was not a mute observer. For example, Howen was present at the Boundary County Sheriff's Office when Deputy Marshals Roderick and Cooper were interviewed. Other than asking a few questions, Howen stated that he was not an active participant in these interviews and he was unable to recall if he took notes.[FN859] Howen said that at these interview he "basically the marshals and asked question, but he did not consider these exchanges to be interviews.[FN861] Howen denied being involved in formulating strategy or participating in negotiations between law enforcement personnel and Weaver. However, he did write one of the notes sent to Weaver during the negotiations.[FN862] FBI Agent Rampton told investigators that Howen was not involved in the negotiations process and that Howen told him that he should remain separated from that process. [FN863] On August 24, Howen was present at the search of the Y. [FN864] Special Agent Venkus told investigators that he invited Howen to go on the search and that Howen did not find any evidence.[FN865] Howen also participated in the walk-throughs that occurred later in the week of August 24. With the exception of the walk-through with Deputy Marshal Norris, in which Howen participated completely, Howen believed that he only participated in parts of the walk-throughs. He could not recall if he took notes.[FN866] However, he conceded that he may have taken notes during the searches and walk-throughs when he heard something of interest.[FN867] Special Agent Wayne Manis recalled that Howen participated in the walk-through with Hunt and that Howen asked questions and took notes. Manis thought that Howen's conduct was appropriate.[FN868] Special Agent George Calley recalled Howen as a member of the grou that participated on an August 30 walk- [[ PAGES 255-262 UNAVAILABLE ]] Finally, the profile developed by the FBI's behavioral sciences personnel was based on incomplete information, thus leading to inappropriate negotiation strategy. Initially, the FBI Special Operations and Research Unit was not informed of the HRT rifle shots fired on August 22 or of the fact that Harris might have been wounded. According to the behavioral scientists who compiled the profile, the shooting incident would affect the way the Weaver family perceived negotiations. The scientists reported that their assessment would have been different, had they been told that shots had been fired and that someone might have been wounded. [FN901] This information was critical to the development of an accurate profile of Randy Weaver. The failure of on-site supervisors to communicate accurate information appears to have had a negative impact on the attempt to resolve the crisis through negotiation. (2) Balance of Tactical and Negotiation Strategies In a crisis situation in which a deliberate assault option is considered a necessary part of overall strategy, a written operational plan for the assault must be submitted to the FBI Headquarters for approval. On the other hand, emergency tactical operation, whether or not they will contribute to the ultimate resolution of the crisis, are the responsibility of both the Special Agents in Charge and the HRT command structure at the crisis site. FBI hostage negotiator Lanceley was critical of FBI crisis management at Ruby Ridge. When he attended Rogers' initial briefing, he was surprised and shocked by the Rules of Engagement and did not believe them to be consistent with the FBI's standard deadly force policy. They were the most severe rules he had seen in hundreds of prior crises. Lanceley described the situation: [T]here was a barricaded subject at the top of a mountain, no hostages, family present and plenty of cover for perimeter personnel. The [Deputy Marshal] were no longer pinned down and the subject was barricaded at a location which had few of the problems inherent to crises that one would encounter in an urban setting. there had been on gunfire since the previous morning at the time of the firefight with the [Deputy Marshals].[FN902] Lanceley told this inquiry that, when he heard Rogers tell the group that this would be "no long siege," Lanceley knew that Rogers did not intend to engage in negotiations. Following the briefing, Lanceley conveyed his perception to Rogers and told officer in the HRT command post. Rogers' response, "good," confirmed Lanceley's belief that there would be no negotiations.[FN903] When he arrived at the command post, Lanceley told Special Agent in Charge Glenn that he was available and proceeded to work on intelligence gathering. Lanceley withdrew from the management structure and was not party to the discussions of command personnel, who he believed intended to resolve the crisis tactically. Lanceley is not aware of discussion among Glenn and other command personnel which considered a negotiations strategy because he was not consulted before the rejection of the operations plan.[FN904] After the plan had been rejected in mid-afternoon on August 22, Lanceley was called to the command post and asked to write an addendum. He understood FBI Headquarters had rejected the operations plan because it did not contain a negotiation component. Lanceley strongly criticized the tactical actions taken, despite his absence from meetings in which command personnel discussed and approved strategy. Lanceley told this inquiry that he regretted not being more aggressive on August 22 and again on August 23, when he chose not to voice objections to Glenn about removing the outbuildings.[FN905] Another FBI Hostage negotiator, E. MacArthur Burke, believed that it was Lanceley's responsibility, as senior FBI negotiator, to press the issue of negotiation. Burke concluded that negotiators and SWAT personnel are highly trained and Special Agents in Charge are not as well prepared to handle the often opposing forces weighing in favor of tactical or negotiated resolutions. Burke believed that the negotiation-free operations order showed that the negotiation and tactical elements of the Ruby Ridge response were considerably out of balance.[FN906] In contrast to Burke, FBI negotiator Wilson Lima spoke of Glenn's commitment to establishing communications with the Weaver cabin from his arrival on the evening of August 21. The next morning, Glenn agreed that a phone should be given to the Weaver group.[FN907] We are aware that the structure of the HRT and its impressive machinery may tend to overtake the negotiators' role in a crisis situation where an inexperienced commander is in charge. Such a charge has arisen in this case. The lack of balance between the negotiation and tactical efforts created an atmosphere supporting a tactical resolution from the very beginning. The strong influence of the HRT management team at the scene is reflected in the way Bo Gritz' participation at the crisis site was finally authorized. According to Gritz, Glenn told him that before Glenn would authorize his participation, he would have to confer with Rogers and FBI Headquarters. There is no evidence that Lanceley was consulted before Gritz was permitted to join the effort to resolve the crisis.[FN908] From the information gathered during this inquiry, it appears that no operations plan was ever approved throughout the entire siege. Unfortunately, FBI records provided during this inquiry do not contain all the operations plans. The records are so incomplete that we can not verify this conclusion. In our opinion, the available records reflect insufficient consideration of negotiation strategy as compared to tactical approaches.[FN909] We have been told that the lack of a negotiation component in the initial operation plan did not reflect a lack of intent to negotiate, but the understanding that tactical personnel had to establish communications with the Weaver cabin before negotiations could begin. We have been told that the first objective of the operations plan was to establish a perimeter containing the crises site and to get close enough to establish communications.[FN910] [G.J.] [FN911 -- G.J.] While we credit the argument that it was necessary to secure the site before negotiations could commence, we find much evidence that a negotiation strategy was not the highest priority of the FBI crisis management team. We note the following: the failure to consult with a negotiations expert while formulating the initial operations plan; the failure to bring an FBI negotiator along on Rogers' mission to the cabin on Sunday morning; the failure to inform adequately FBI behavioral scientists that shots had been fired and that someone in the cabin might have been wounded; and repeated misinformation form the site that shots had been fired from the cabin on August 22. These facts give weight to the complaint that the management team favored a tactical strategy over a negotiation strategy to resolve the crisis. We find that position disturbing and look to the FBI to establish a mechanism to ensure a more even balance between the two strategies in the future. d. Evidence of Vicki Weaver's Death It has been alleged that law enforcement officials knew that Vicki Weaver was dead before Randy Weaver spoke with Bo Gritz on August 28. The allegation accuses the FBI of covering up its knowledge of Vicki Weaver's death in order to conceal that it intentionally shot and killed her. We find no factual support for that position and find that the allegation is totally without merit. The foundation for the allegation is speculation. For example, questions have been raised as to why during the electronic monitoring of conversations inside the Weaver cabin did law enforcement personnel not become suspicious when Vicki Weaver's voice was not heard. In our view this can be explained by the poor quality of the audio recordings and by the fact that 16 year-old Sara Weaver's voice may have been mistaken for her mother's. There were also unconfirmed reports of something resembling a body bag on the back porch of the Weaver cabin. This, according to the allegation, was another indication that law enforcement had earlier knowledge of Vicki Weaver's death. A deputy marshal at the scene reported that he was told by an unidentified individual that "there was something wrapped on the back porch that could possibly be a body, and there was a `smell of death'. It was related to me as adult size." [FN912] The marshal believed that if such a bag were on the back porch, it contained the body of Kevin Harris not Vicki Weaver.[FN913] This would be a reasonable assumption on the part of the marshal in light of Horiuchi's report that he may have shot Harris with his second shot. It is the conclusion of this inquiry that law enforcement personnel did not know of Vicki Weaver's death before Friday, August 28 when Randy Weaver informed Bo Gritz. e. Howen's Activities at Ruby Ridge Howen was present throughout the crisis at Ruby Ridge. We find nothing inappropriate about his presence or his conduct. Indeed, considering the remoteness of the Weaver property and the need for expeditious applications for search warrants and Title III authority, we believe that there was a legitimate need for a representative of the U.S. Attorney to be at Ruby Ridge. Most individuals questioned that it was appropriate for Howen to be a Ruby Ridge and observed no improper conduct. As the prosecutor in the case, Howen had an understandable interest in learning about the shootings at Ruby Ridge, as well as becoming familiar with the evidence. He was present at some of the interviews of the marshals, but primarily as an observer. The fact that he may have asked some questions and may have taken some notes was not improper. No one characterized Howen as orchestrating or controlling the interviews. Special Agent Caster reported seeing Howen take the marshals aside and talk to them but he had no knowledge of what was discussed. The only suggestion that Howen may have been a more active participant came from Gore's impression after talking to an agent. Such an impression is not evidence of prosecutorial misconduct. Although others reported Howen talking to individuals on the scene and taking notes, there was no evidence that these conversations were improper. Indeed, Howen needed to obtain information to draft necessary legal documents. Furthermore, as the persecutor in the case, it is understandable and appropriate that Howen took notes of matters that would assist him in preparing the case. With the exception of drafting legal documents for search warrants and Title III authority, there was no evidence that Howen was in a position of control at Ruby Ridge or that he exercised a decisionmaking function. No evidence was discovered that Howen had any role in the decision to deploy HRT or in the formulation or modification of the Rules of Engagement. Nor was there any evidence that he was involved in tactical or operational planning or decisions or in developing or implementing negotiation strategy. Similarly, there is no evidence that Howen acted improperly at walk-throughs and searches or that he controlled the searches or selected the investigative methodology. Indeed, Special Agent Davis believed that Howen tried not to interfere with the investigations. Although Howen may have made a few suggestions as to materials the investigators should seize, these suggestions were not orders and appear to have been made to assist the agents conducting the search. The advice Howen provided at these searches appears to have been solicited and was limited to the specific inquiry made. Our investigation uncovered no evidence that Howen's actions impeded investigators at the searches. We believe that, in the future, serious consideration should be given to including a representative from the U.S. Attorney's Office to law enforcement teams responding to crises like Ruby Ridge. The representative could assist law enforcement personnel in many matters such as participating in resolving the controversy and providing legal advice about issues arising during the crises. We recognize, however, that in many instances the representative should not be the attorney responsible for prosecuting the case because this could lead to the charge that the prosecutor was a witness to the critical events at issue. With that caveat, we believe that many of the issues a Ruby Ridge could have been avoided, if a member of the U.S. Attorney's Office had been a more active participant in the events. 4. CONCLUSION We believe that questionable decisions by HRT managers unintentionally contributed to circumstances that required removal of HRT personnel form the mountain overlooking the Weaver cabin on August 22 after the two rifle shots were fired. The FBI management team favored a tactical strategy and gave insufficient consideration to negotiations as a means to resolve the crisis. Negotiation experts at the site were not adequately informed and consulted during the crisis. The failure of onsite supervisors to communicate accurate information to the FBI's behavioral sciences personnel appears to have had a negative impact on attempts to resolve the crisis through negotiation. the late decision to use third party non-governmental negotiators was a sound management decision that displayed flexibility on the part of FBI management. Finally, Howen's conduct was proper and consistent with the roe of a federal prosecutor. Indeed, it may have been advisable for a member of the U.S. Attorney's Office to have participated more actively in some of the events at Ruby Ridge, thereby possibly avoiding some of the problems that arose. _________________________________________________________________ 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 H ) 771 Sworn Statement of Lester Hazen, November 19, 1993, at 13-14. HRT personnel did not bring their "cold weather package" that included clothing better suited for the conditions because HRT supervisors did not anticipate cold weather in August. See Sworn Statement of William Luthin, November 18, 1993, at 3. 772 Hazen Sworn Statement, November 19, 1993, at 13-14. 773 HRT Commander Rogers testified that he originally planned to keep the sniper/observers on the mountain until 10:00 p.m. or midnight. Because of the weather, he ordered them off the mountain at approximately 8:00 p.m. Rogers Trial Testimony, June 2, 1993, at 78. 774 Glenn Sworn Statement, January 12, 1994, at 24-26. 775 Hazen Sworn Statement, November 19, 1993, at 14. 776 Local authorities maintained jurisdiction over the investigation of the other deaths and injuries that occurred at Ruby Ridge. 777 FD-302 Interview of E. Glen Schwartz, October 21, 1993, at 4. Major Edwin Strickfaden of the Idaho State Police assumed command of his personnel upon his arrival some time between 8:30 and 9:00 p.m. Strickfaden stated that Glenn arrived about the same time he arrived. The Idaho State Police had about 50 people at or near the crisis site. This included additional patrols in nearby Bonners Ferry, Idaho who were placed there at the request of city officials. FD-302 Interview of Edwin Strickfaden, October 7, 1993, at 4. 778 See Undated Proclamation signed by Idaho Governor Cecil Andrus, August 21, 1992. 779 However, it should be noted that the delay in deployment of the HRT sniper/observers could be attributed in part to the refusal of the Governor's office to release armored personnel carriers to the site. 780 For example, Captain Schwartz stated that Hunt wanted to take some officers and rescue the remaining marshals. Schwartz and tow deputy sheriffs talked Hunt out of this with a little "arm twisting." Schwartz FD-302, October 21, 1993, at 3. 781 Glenn Sworn Statement, January 12, 1994, at 2-9. 782 Id. at 9. Glenn and Gore ordered the Salt Lake City and Seattle SWAT teams to establish the perimeter. Sworn Statement of William Gore, November 3, 1993, at 4-5. 783 Id. 784 Id. at 5-6. 785 Rogers Trial Testimony, June 2, 1993, at 82-90. 786 Glenn Sworn Statement, January 12, 1994, at 20. 787 Id. at 20-21. 788 Id. at 20. 789 Rogers testified that he was trying to "get them to come out, pick up the phone, establish a dialogue, and let's move on with this and establish some kind of communications." Rogers Trial Testimony, June 2, 1993, at 82. 790 Lanceley FD-302, October 19, 1993 at 4. 791 Rogers Trial Testimony, June 2, 1993, at 82-83. 792 Lanceley FD-302, October 19, 1993, at 5. 793 Id. 794 Id. 795 FD-302 Interview of E. MacArthur Burke, October 5, 1993, at 2. 796 Rogers Trial Testimony, June 2, 1993, at 94. 797 Glenn stated that the discovery of Sammy Weaver's body was the first evidence that anyone in the cabin had been injured. Glenn Sworn Statement, January 12, 1994, at 28-29. This is inconsistent with HRT reports that Horiuchi's second shot might have hit an adult male. 798 Rogers Trial Testimony, June 2, 1993, at 106. The only evidence that law enforcement knew that Sammy Weaver had been struck during the exchange of gunfire of August 21 is the interview of Marshals Service Director Hudson, who stated that Deputy Director Twomey informed him that "it was believed that Sammy [Weaver] had been wounded." FD-302 Interview of Henry Hudson, November 15, 1993, at 4. Twomey reported that he told Hudson there was no indication Sammy had been shot. See FD-302 Interview of John Twomey, November 26, 1993, at 3. None of the FBI personnel at Ruby Ridge appears to have known that Sammy Weaver had been wounded or killed during the fire fight on August 21. Initial reports of the location of the wounds on Sammy Weaver's body were incorrect. For example, the Marshals Service Crisis center Log contains an entry on Sunday night that gunshot wounds were discovered on his head and left breast. An entry, less than two hours later, corrects the information, explaining that he had been shot once in the back and once in the arm. Crisis Center Log, August 23, 1992, at 11:03 p.m. (EDT) and August 24, 1992, at 12:48 a.m. (EDT). 799 FD-302 Interview of Clint Van Zandt, December 21, 1993, Attachment, at 1. 800 Gore Sworn Statement November 3, 1993, at 16. 801 HRT Sniper Log, August 26, 1992; FBI SIOC Log, August 26, 1992, at 12:30 p.m. (EDT) (Potts and Glenn approved the change). 802 Glenn Sworn Statement, January 12, 1994, at 28-29. 803 Id. 804 Gore Sworn Statement, November 3, 1993, at 15. 805 Sworn Statement of Robin Montgomery, October 25, 1993, at 2. 806 Rogers Trial Testimony, June 3, 1993, at 74-75. Duke Smith, Stephen McGavin, William Luthin, and Lester Hazen were not involved in the decision to revoke the Rules of Engagement but were advised of the decision. 807 SIOC Log, August 26, 1992, 12:30 p.m. (EDT), at 31. Potts does not recall this change. 808 HRT Sniper Log, August 26, 1992, 10:53 a.m. and 10:54 a.m., at 22. HRT and SWAT team members deployed at the time of the change to the FBI standard deadly force policy reported to this inquiry that they received radio notice of the change from Rogers. Each observation point was required to acknowledge that it was "on the air" before Rogers announced the change to the standard FBI policy and that it had heard and understood the change. An HRT member told HRT and SWAT personnel who began the next shift that the standard deadly force policy was in effect. Each briefing subsequent to the announcement included a reminder that the standard policy on deadly force was in effect. 809 [G.J.] 810 Gritz was asked during this inquiry whether, at any point leading up to Harris' surrender, he had detected odors associated with a dead body. Gritz said that he had not detected such odors and explained that he was very familiar with the odor of death, due to extensive service in Viet Nam. Gritz retired from the Special Forces at the rank of Lieutenant Colonel in 1979. Soon after Harris' surrender, Gritz persuaded Weaver to allow him and Jackie Brown to come inside the residence and remove Vicki Weaver's body. He obtained a body bag and, with Randy Weaver's assistance, placed Vicki Weaver's body in the bag. Gritz detected only minimal odor and was unable to explain why the very recognizable odor usually associated with a several-day-old corpse had not permeated the residence. When Gritz placed the body in the bag, he removed what he described as a holstered nine millimeter semi-automatic pistol. 811 [G.J.] 812 It was rumored among law enforcement personnel that, after the second shot, a body, possibly Harris', could be seen on the front or back porch of the cabin. FD-302 Interview of Luke Joseph Adler, January 7, 1994, at 2-3. One marshal was told that there was something wrapped on the back porch "that could be possibly a body." Sworn Statement of Mark Jurgensen, February 7, 1994, at 16-17. None of the HRT personnel in mountainside observation positions reported seeing Harris' body or any other. The Crisis Center Log reported that the rumor was "completely false and unfounded." Crisis Center Log, August 25, 1992, at 2:51 p.m. (EDT). 813 Glenn Sworn Statement, January 12, 1994, at 17-18. 814 Gore Sworn Statement, November 3, 1993, at 8-9. 815 Lanceley FD-302, October 19, 1993, at 3-4. 816 Id. at 3-5. Wilson Lima, hostage negotiator for the FBI's Salt Lake City Division, was deployed with the Salt Lake City SWAT. Line spoke of Glenn's commitment to establishing a means of communication with the Weaver cabin from the time of his arrival on Friday evening, August 21, 1992. Lima recalls Glenn reiterating the need to get a phone to the Weaver/Harris group again on Saturday morning, August 22, 1992. FD-302 Interview of Wilson Lima, October 12, 1993, at 1-2. 817 Rogers Trial Testimony, June 2, 1993, at 67-69. 818 Lanceley FD-302, September 2, 1993, Attachment A, at 1. 819 Rogers Trial Testimony, June 2, 1993, at 82. 820 Id. at 83, 90-91, 93. 821 Lanceley FD-302, October 19, 1993, at 5. 822 [G.J.] ; Lanceley FD-302, September 2, 1993, Attachment A, at 2-4. Earlier in the day, a carrier ran over and broke the line to the hostage telephone. 823 [G.J] ; Lanceley FD-302, September 2, 1993, Attachment A, at 4-8. 824 Gritz FD-302, November 17, 1993, at 15. 825 Although the FBI at the scene did not know that Vicki Weaver was dead, they knew that shots had been fired and had substantial information that the second shot had at least injured, if not killed, Kevin Harris. 826 Van Zandt FD-302, December 21, 1993, at 1-2. 827 Lanceley FD-302, September 2, 1993, Attachment A, at 8-11. 828 [G.J.] ; Lanceley FD-302, September 2, 1993, Attachment A, at 11-19. 829 [G.J.] 830 Command Post Entry for August 17, 1992; FD-302 Interview of James Scanlan, January 12, 1994, at 12. 831 Mr. Gritz was an independent candidate for President of the United States at the time. 832 Gritz FD-302, November 17, 1993, at 4-5. 833 Id. 834 Transcript of conversation intercepted from microphone placed under floor of Weaver residence, August 29, 1992, at 7:39 p.m. (PDT). According to Gritz' version of the conversation, Weaver asked, "Bo, is that you?" Weaver then stated, "They have killed my wife, they have killed Vicki, and they won't tell anyone" or words to that effect. 835 Gritz Fd-302, November 17, 1993, at 6. 836 Lanceley FD-302, September 2, 1993, Attachment, at 31-32. Lanceley's notes, generated at that time, state that he first learned that Vicki Weaver, Kevin Harris, and Randy Weaver had been shot as a result of Weaver's statement to Gritz. 837 Id., Attachment, at 32; Gritz FD-302, November 17, 1993, at 7. 838 FD-302 Interview of Jackie Brown, October 5, 1993, at 2. 839 Gritz FD-302, November 17, 1993, at 7-8. 840 Id. 841 Id. at 10-11 842 Jackie Brown FD-302, October 5, 1993, at 3. 843 The conversations Gritz had with the Weaver family on August 30 reveal that Weaver believed that the shotgun on the robot would be used to kill him if he attempted to pick up the telephone to negotiate. See Tape Channel 1. at 61-62 and Tape 2 at 5. 844 Gritz FD-302, at 11-12. 845 Id. at 12-14. 846 McLamb FD-302, January 13, 1994, at 6. 847 Rogers Trial Testimony, June 2, 1993, at 167-68 and June 3, 1993, at 108. 848 Gritz FD-302, at 12-15 849 Interview of Maurice Ellsworth on December 15-16, 1993, Tape 2, at 31 (hereinafter cited as "Ellsworth Interview"). 850 Ellsworth believes that the Marshals Service representative were Michael Johnson, Ronald Evans, and possibly Warren Mays. Id. at 31-32. 851 Howen Interview, Tape 4, at 23-27; Ellsworth Interview, Tape 2, at 31-32. 852 It was decided that Warren Mays, who had close contact with Dave Hunt, would be the affiant. Howen Interview, Tape 4, at 28-29. 853 Howen Interview, Tape 4, at 28-29; Ellsworth Interview, Tape 2, at 34-35. 854 FD-302 Interview of Maurice Ellsworth, October 29, 1993, at 5; Ellsworth Interview, Tape 2, at 42. 855 Ellsworth Interview, Tape 2, at 42. 856 Howen Interview, Tape 4, at 29-30. 857 Id., Tape 5, at 54; FD-302 Interview of Gregory Rampton, October 18-19, 1993, at 7. 858 Howen Interview, Tape 6, at 52. 859 Id., Tape 5, at 23. 860 Id. at 17, 22. 861 Id., Tape 6, at 52. 862 This note, which Howen gave to Glenn, was not found when the cabin was searched after the standoff. Rampton believes that the note articulated the Government's prosecutorial position, if Weaver surrendered. Rampton FD-302, October 18-19, 1993, at 17. 863 Id. 864 Howen Interview, Tape 6, at 9-10. 865 FD-302 Interview of Joseph V. Venkus, October 18-19, 1993, at 6. 866 Howen Interview, Tape 5, at 23; Tape 6, at 6-7. 867 Id., Tape 6, at 17. 868 FD-302 Interview of Wayne F. Manis, October 5, 1993 at 2. [Editor's Note: Footnotes 869 through 901 are unavailable.] 901 FD-302 Interview of James Wright, December 21, 1993, at 1-2; FD-302 Interview of Clint Van Zandt, December 21, 1993, at 1-2. 902 Lanceley FD-302, October 19, 1993, at 2. 903 Lanceley FD-302, September 2, 1993, at 2. 904 Lanceley FD-302, October 19, 1993, at 3. 905 Id. at 4. 906 Burke FD-302, at 2. 907 Lima FD-302, October 12, 1993, at 2. 908 Gritz FD-302, November 17, 1993, at 5. 909 See, for example, entries in the FBI SIOC Log concerning the proposed operations plan and strategy on the first day. 910 Gore Sworn Statement, November 3, 1993, at 8-9. 911 [G.J.] 912 Jurgensen Sworn Statement, February 7, 1994, at 16. 913 Id. _________________________________________________________________ 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. Table of Contents _________________________________________________________________ IV. SPECIFIC ISSUES INVESTIGATED I. FBI CRIME SCENE INVESTIGATION 1. INTRODUCTION The investigation of the events at Ruby Ridge from August 21-August 31, 1992, included several searches and attempts to gather evidence. There were three primary crime scenes and search areas. The first crime scene was at the intersection of two old logging roads known as the "Y"; the second was the weaver cabin; and the third was the area around the cabin, including out buildings such as the birthing shed. During the searches of the crime scenes, a wide variety of objects was retrieved for use as evidence in the Weaver prosecution. This section will address various allegations of errors, omissions, and misconduct relating to the crime scene searches. There have been allegations that the measurements taken during the searches were inaccurate; that the FBI staged or planted evidence; that the personnel, techniques, and equipment employed in the searches were inadequate because they lacked the requisite competence or technical efficiency; that third parties were allowed to infect the crime scene to cover up the government's wrongful conduct; and that the integrity of the crime scenes was not maintained. 2. STATEMENT OF FACTS a. Background The FBI conducted searches of the Y area on August 24, August 27-31 and September 1, 1992. The FBI supervised searches of the Weaver cabin, grounds, and outbuildings on August 31 and September 1 and September 10, 1992. An additional search of the Y and the Weaver cabin and grounds was conducted on March 22 and March 23, 1993. The search teams consisted primarily of FBI personnel from the Salt Lake City and Seattle Divisions and the FBI Laboratory, augmented by personnel from the U.S. Marshals Service, the Bureau of Alcohol, tobacco and Firearms, the Idaho Bureau of Investigation, and the Boundary County Sheriff's Office. Special Agent in Charge Eugene Glenn maintained overall control and authorized all investigative activities relating to the crime scenes and evidentiary matters. T. Michael Dillon, Senior Supervisory Resident Agent of the FBI's Boise office, had overall supervisory responsibilities over the FBI's searches of the 'Y' and the Weaver cabin, grounds and outbuildings and acted as the search supervisor at the Weaver cabin. Two FBI special agents were assigned significant roles in carrying out the crime scene searches. Joseph Venkus was responsible for developing procedures and instructions for the searches and establishing a chain of custody for seized evidence. He was also responsible for organizing the search teams and handing out assignments. Venkus directed the initial search of the Y and acted in various capacities during the search of the Weaver cabin. Gregory Rampton was responsible for coordinating interviews of the marshals involved in the shooting incident at the Y on August 21 and for preparing affidavits for search warrants. Rampton also acted as a team leader during the search of the Weaver cabin. Other FBI agents played significant roles in the crime scene investigation. Special Agent Larry Wages was assigned search responsibilities during the initial search of the Y and directed the later searches of the Y. Wages also participated in the search of the grounds surrounding the Weaver cabin. Special Agent George Sinclair was team leader for the exterior search of the grounds and outbuildings near the Weaver cabin. The Strategic Information and Operations Center Log ("SIOC") at FBI Headquarters asserts that a specialized Evidence Response Team was available as early as August 22 to conduct and coordinate the retrieval of evidence at the Ruby Ridge crime scene. [FN914] Glenn was not aware that the Evidence Response Team was available, but he state that he would not have used the team in any case because he saw Ruby Ridge as a 'normal murder crime scene" and believed that the complexity of the crime scene would not become an issue. [FN915] On March 22-23, 1993, another search of the Y area was conducted, although there were between six inches and two feet of snow on the ground. Assistant U.S. Attorney Lindquist, Rampton, Boundary County Idaho Deputy Sheriffs, and several U.S. Deputy Marshal were present, as well as two individual Lindquist had retained: Lucien Haag, a criminologist who was reconstructing the August 21 shooting at the Y and Richard Graham, a retired FBI agent who specialized in the use of metal detectors. [FN916] The partial butt plate of Sammy Weaver's weapon was discovered using Graham's metal detector. [FN917] b. Method of Searching the Y Crime Scene During the crisis, seven searches of the Y crime scene were conducted on August 24 and August 27-31, and September 1, 1992. Aside from the September search, the searches were conducted while the situation at Ruby Ridge was unresolved. Because Weaver and Harris were still in the cabin farther up the mountain, FBI supervisors were concerned about the security of the personnel who would conduct the searches. The Marshals Service and FBI SWAT teams provided security for those who conducted the crime scene searches, and the marshals first mad certain that there were no booby traps or unauthorized persons in the area. [FN918] The Weaver cabin could be reached in two ways: by a dirt road, which the weavers generally used, and by two old logging roads that formed the Y below the cabin. During the crisis and until the surrender of the Weaver group, the road beneath the cabin was considered too dangerous; the road through the Y crime scene was determined to be the safer way for access to HRT Command Post personnel and monitoring sites. Therefore, during the crisis, HRT Command Post personnel and equipment used the road that passed through the Y crime scene. On Sunday, August 23, Dillon conducted a two-hour meeting with the agents who ere to participate in the searches. [FN919] Venkus presented a detailed organizational plan and organized tow separate search teams to search the Y and the Weaver cabin. [FN920] Dillon arranged to obtain metal detectors to use during the searches. [FN921] For the Y crime scene search of August 24, Venkus developed an operational plan, providing specific assignments for spotters, a lead agent to collect evidence, a photographer, a video camera operator, and someone to sketch the crime scene and note the location of evidence. The Marshal Service, at Dillon's request, established a perimeter and provided security during the searches at the Y through September 1. [FN922] Venkus' operational plan included instructions establishing a chain of custody for evidence, governing the search and the recovery, documentation, and security of evidence found. Venkus established a tree stump as the reference point for making measurements to establish and memorialize the location of evidence. In order to find any evidence, he instructed a line of agents, on each side of the road at arm's length, to proceed across the crime scene. [FN923] The area around the Y was very dense, and searches were difficult. Agents had to rake through three to six inches of leaves and branches to locate cartridge casings and other pieces of evidence. FBI agents and representatives of the Boundary County Sheriff's Office used metal detectors to locate evidence. [FN924] As evidence was located, an index card or small flag was placed where the evidence was found. Venkus would observe the distance from the reference point to the spot where the evidence was found. The measurement would be recorded on the crime scene sketch that Thundercloud prepared. Evidence was photographed and assigned a letter designation. [FN925] Venkus retrieved the evidence and placed it in a plastic evidence bag with an index card noting the letter and number designation of the evidence. After the search was completed, Dillon held a meeting with the participants to discuss what they found. [FN926] Special Agent Larry Wages was placed in charge of crime scene searches at the Y as of August 28, 1992. Venkus and Dillon instructed him to follow the procedure that Venkus had established for searches. Dillon continued to hold meetings before and after each search to ensure that all participants understood their assignments and to discuss what had been found. [FN927] Wages cordoned off the Y crime scene into approximately 10- foot grids for the August 28 search. For each grid, Wages assigned a team of two agents, one to operate a metal detector and the other to act as a spotter. After completing the search of a grid, the team would repeat the process. The procedures Venkus established for the chain of custody of the evidence were followed, including the sighting, documentation, and recovery of evidence. At the conclusion of the search, Wages turned over all the evidence found to Venkus for storage and submission to the FBI Laboratory. [FN928] Later, under Rampton's direction, the fern field was searched with metal detectors for spent rounds or markings in the area where the marshals reported receiving gunfire form trees overhead. No rounds or markings were discovered. [FN929] Commencing on August 28, the five marshals, who participated in the events surrounding the shooting of Deputy Marshal Degan at the Y on August 21, were taken on individual walk-throughs of the crime scene so that the investigating agents could obtain a clearer understanding of the shooting location and the chain of events. During the FBI supervised searches of the Y area and the vicinity of the Weaver residence, the location of evidence was noted in relation to fixed reference point and in relation to the other objects of evidence found. [FN930] As evidence was locate, Agent Thundercloud made a sketch or diagram of the location of the objects in relation to the fixed point. The sketch was made by hand and was not drawn to scale. [FN931] (1) Triangulation Not Utilized Triangulation is a technique commonly used to memorialize the location of evidence discovered at crime scenes by measuring the location from two fixed reference points to ensure that the exact location of the evidence is pinpointed. Triangulation was not utilized during the recovery of evidence at Ruby Ridge. The FBI's failure to triangulate was harshly criticized by the other members of the trial team and by the defense at trial. The FBI's primary explanation for not using triangulation was that the uneven terrain made it impractical. Venkus believed that triangulation was not only impractical in this case, it was "ludicrous." [FN932] One of the other explanations given by the FBI for its failure to triangulate is that Assistant U.S. Attorney Howen may have told Wages that triangulation was not necessary and that he should "just get a compass direction and distance from the tree trunk." [FN933] Howen does not recall discussing triangulation, but does recall discussing the possibility of locating evidence through compass headings. [FN934] Assistant U.S. Attorney Lindquist believes that triangulation should be used at crime scene investigations, unless there is a clear reason not to do so. [FN935] (2) The "Magic" Bullet During the search of the Y crime scene on August 31, the FBI photographer Kelly Kramer was not available at the start of the search to take photographs of the evidence located and to assign letter designations to it. Furthermore, agents discovered that some of the flags marking the location of evidence had been walked on or moved as vehicles went through the area. [FN936] Considerable interest has been generated about an intact bullet Wages discovered at the center of the Y during this search. This bullet was designated "L-1" and was referred to by defense counsel as the "magic bullet." Wages could not understand why the bullet had not been discovered during the previous searches. The bullet was not "pristine"; it had been fired from a weapon and had a dent and striations on it. Later, it was determined that the bullet had been fired from one of the Ruger weapons found in the Weaver cabin after the Weaver/Harris group surrendered. [FN937] Wages recalled that he had FBI Supervisory Special Agent James Cadigan from the FBI Laboratory photograph the bullet. Later Wages realized that he needed to obtain a letter designation from the photographer and then have a new picture taken with the letter designation. [FN938] However, Wages was not able to find a photographer. Thereafter, Wages was instructed to end the search and return to the command post for a briefing. The photographer, Kelly Kramer, was still unavailable to assign letter designations to the bullet and to photograph them. before leaving the Y area, wages picked up the L-1 bullet, marked it, and placed it in a plastic envelope that he put in his pocket. After assisting in the search of the Weaver cabin, Wages asked Special Agent Kramer to return with him to where the bullet had been found. Kramer was told to photograph the spot. [FN939] According to Wages, he did not tell case agent Rampton that he had removed the bullet from the scene and replaced it until Rampton asked about it in October or November 1992. [FN940] c. Investigation by the FBI's Shooting Incident Review Test On August 31, the Y crime scene was subjected to a theodolite test [FN941] by Visual Information Specialists Cyrus Grover and Michael Taister from the FBI Laboratory in Washington, D.C. Grover and Taister were present in connection with their responsibilities as members of the FBI's Shooting Incident Review Team. They employed a theodolite test to measure distances with a laser beam from a reference point to the location of each piece of evidence. Grover saw that many of the small red flags in the area had been knocked over. Using the theodolite system, Grover began to take measurements of some of the undisturbed flags and some of the evidence that had not been removed. [FN942] The measurements were recorded and later used to produce a computer-generated diagram of the crime scene, fixing locations where evidence had been found. Upon his return to Washington, Grover began to prepare a sketch of the Y crime scene with appropriate orientation data. Before he had finished, he was injured during a vacation and went on extended sick leave. during Grover's absence, Taister faxed the working copy to the FBI's Salt Lake City office in the mistaken belief that it was complete and accurate. [FN943] On December 22, 1992, Rampton discovered that the orientation of the diagram Grover and Taister had generated was inaccurate and that the location of much of the evidence recovered was not on the sketch. Upon inquiry, Rampton was told that the diagram was an inaccurate working copy. [FN944] On December 22, 1992, Rampton discovered that the orientation of the diagram Grover and Taister had generated was inaccurate and that the location of much of the evidence recovered was not on the sketch. Upon inquiry, Rampton was told that the diagram was an inaccurate working copy. [FN944] HRT member Lon Horiuchi showed Robert Dean the position on the mountainside from which he fired two shots on August 22. On August 31, Dean showed Horiuchi's position to James Cadigan, who was assigned to assist the Review Team's inquiry. [FN945] Grover and Taister, as part of the FBI's Shooting Incident Review Team, used the theodolite measuring system to obtain information for the investigation of the August 22 shots at the cabin area. On September 1, Grover and Taister accompanied Cadigan to the mountainside. By this time, Horiuchi had left. Cadigan had difficulty finding the position that Dean had identified, but finally pointed to a position from which he believed Horiuchi had fired. [FN946] The diagram was erroneous because Cadigan had not correctly identified Horiuchi's position at the time of the shots to Grover and Taister. [FN949] Furthermore, the theodolite measurements were based on the location of the birthing shed when the measurements were taken. However, the Hostage Rescue Team had moved the birthing shed during the standoff. [FN950] d. Searches of the Cabin and Surrounding Area After Weaver and his family had surrendered, the cabin was searched on August 31, September 1, and September 10, 1992. In preparation for the searches, two briefings were held to give assignments and to review procedures for handling evidence. [FN951] The first search was made immediately after the BATF declared the cabin safe to enter. The cabin was videotaped before and after the search. [FN952] Approximately ten agents were inside the cabin when the searches were conducted, with Rampton in charge. [FN953] Each piece of evidence was identified by an evidence number and photographed with the evidence number. [FN954] An evidence log was maintained that included a description of each piece of seized evidence. Personnel inside the cabin wore gloves to preserved latent fingerprints. At the conclusion of the search, items seized were placed in a HUMMV vehicle for transportation to the base of the mountain. The evidence was then transferred from the HUMMV to a U-Haul truck under Rampton's supervision. The truck was padlocked, and the evidence was driven to Boise, Idaho for storage. [FN955] Rampton initially instructed the agents to retrieve only a representative sampling of the ammunition inside the cabin. This instruction was countermanded by Howen and Special Agent in Charge Glenn. [FN956] The searches of the areas surrounding the cabin were conducted by approximately twenty agents from the FBI and BATF and officers from local agencies. That group was broken down into four teams of two or three searchers. The teams worked in a counterclockwise direction, placing markers near objects that might have evidentiary value. After the area was searched, another group was responsible for photographing, sketching, logging, tagging, and seizing objects. [FN957] During one of the searches of the around the cabin, Howen found a blue spiral notebook in the birthing shed, which contained swastikas. "Arise on White Man" poems, and right wing statements and quotations. [FN958] Howen complained that the notebook was not available during his preparation for trial because it had not been seized. [FN959] On Sunday, August 30, Jackie Brown, a friend of the Weaver family, assisted Bo Gritz in carrying the body of Vicki Weaver out of the cabin. After taking the body to a helicopter, Brown returned to the forward command post. She approached a group of six to eight law enforcement officials and requested water and towels to clean the cabin. She was handed two five-gallon buckets, three white bath towels, and a roll of paper towels. She remembers that HRT Commander Richard Rogers was among the group. [FN960] FBI negotiator Lanceley remembers that he was in the forward command post when Brown came down the hill to get water. He saw once HRT member assist her in taking the water part way up. Lanceley remembers that Special Agent in Charge Robin Montgomery saw Brown with the water and told Lanceley to stop her. Lanceley ran out of the command post and yelled to Brown who had rounded the bend at the top of the hill and was approaching the cabin. She did not stop. According to Lanceley, Montgomery was not consulted before the water was given to Brown. [FN961] When Brown returned to the Weaver cabin, she cleaned Vicki Weaver's blood from the floor because she did not want the Weaver daughters to "deal with cleaning the blood of their mother from the floor," since they "had been through enough." [FN962] Brown gathered the blood soaked towels from the cabin and threw them off the rear deck. 3. DISCUSSION a. Techniques Employed to Update Evidence The searches of the area near the Weaver residence, including the Y, coordinated by the FBI, have been criticized as disorganized, confused, and unsecured. Much of the criticism noted that too many people were involved in the searches, creating confusion, and that access to the crime scenes was not sufficiently restricted. [FN963] It was also apparent to some who conducted the searches that many agents who participated were inexperienced in crime scene search techniques and had not been trained for this assignment. [FN964] These allegations have some merit. The use of metal detectors by untrained FBI agents and other personnel at the crime scene resulted in incomplete searches. [FN965] For example, a private metal detection expert, Richard Graham, searched the Y in March 1993 and located the butt plate of Sammy Weaver's rifle. This search was conducted approximately six months after the FBI searches and with snow on the ground. We believe that the inexperience of the agents who used the metal detectors in the initial searches and the apparent lack of organization contributed to the failure to locate this and perhaps other pieces of evidence. If agents with expertise in the use of metal detectors had been on the scene at the initial searches, the butt plate of Sammy Weaver's rifle may have been discovered much earlier. Other valuable evidence which could have been utilized by the prosecution in formulating the charges may have been lost because of the use of agents inexperienced in metal detection. b. Techniques Used to Record the Location of Evidence Because Agent Thundercloud's diagram of the location of evidence and the other techniques the FBI employed were based on only one fixed reference point -- a tree stump -- locations could not be noted with precision. [FN966] To provide a second point of reference, Venkus would note that pieces of evidence were found, near some other point or near another piece of evidence. Compass headings were not utilized to memorialize the location of evidence, and an accurate record was not made of the elevations where evidence was located. [FN967] In our view, these techniques lacked the precision required for a crime scene search of this importance. As Lindquist noted, the FBI's methods allowed one to locate a piece of evidence "fairly close" to where it had been found, but "fairly close" was not sufficient for trial, in which, for example, the location of Degan's casings became "very critical." [FN968] Although the FBI explained that triangulation could not be utilized in the crime scene investigation because of uneven terrain, it was unprofessional not to use triangulation in such an important case. Triangulation is an established method of accurately locating significant pieces of evidence and is utilized in most homicide investigations. As noted earlier, the accurate location of the shell casings from Degan's rifle was significant. The exact placement of those shells using triangulation would have assisted in determining the credibility of Deputy Marshal Cooper in his account of Degan's actions with his weapon during the shootout. If agents with expertise in the use of metal detectors had been on the scene at the initial searches, the butt plate of Sammy Weaver's rifle may have been discovered much earlier. Other valuable evidence which could have been utilized by the prosecution in formulating the charges may have been lost because of the use of agents inexperienced in metal detection. b. Techniques Used to Record the Location of Evidence Because Agent Thundercloud's diagram of the location of evidence and the other techniques the FBI employed were based on only one fixed reference point -- a tree stump -- locations could not be noted with precision. [FN966] To provide a second point of reference, Venkus would note that pieces of evidence were found, near some other point or near another piece of evidence. Compass headings were not utilized to memorialize the location of evidence, and an accurate record was not made of the elevations where evidence was located. [FN967] In our view, these techniques lacked the precision required for a crime scene search of this importance. As Lindquist noted, the FBI's methods allowed one to locate a piece of evidence "fairly close" to where it had been found, but "fairly close" was not sufficient for trial, in which, for example, the location of Degan's casings became "very critical." [FN968] Although the FBI explained that triangulation could not be utilized in the crime scene investigation because of uneven terrain, it was unprofessional not to use triangulation in such an important case. Triangulation is an established method of accurately locating significant pieces of evidence and is utilized in most homicide investigations. As noted earlier, the accurate location of the shell casings from Degan's rifle was significant. The exact placement of those shells using triangulation would have assisted in determining the credibility of Deputy Marshal Cooper in his account of Degan's actions with his weapon during the shootout. We agree with the trial team that triangulation or some other scientifically precise method should have been used in an investigation of such importance. c. The "Magic Bullet" and Allegations of Staged Evidence The events surrounding the discovery and retrieval of the "magic bullet" generated allegations of staged or manipulated evidence. [FN969] We have not found evidence of intentional concealment, staging, or a lack of a good faith on the part of the FBI or the other law enforcement agencies that assisted in the searches. However, we believe that poor judgment by those who conducted the crime scene searches created confusion and, as manifested by the "magic bullet" episode, that poor judgment harmed the government's case. The inability of the FBI to have a photographer available at all times during the crime scene investigation is difficult to understand. At such a critical stage of the investigation, a photographer should have been available to photograph and properly designate all evidence as it was originally discovered. Such an important case demanded the proper identification of evidence in order to alleviate any questions of admissibility. Lindquist believed that the testimony of an FBI agent about the bullet's removal from and replacement at the crime scene left the jury with the impression that the agent was not being genuine: the jury must have concluded that "[e]ither [the agent's] deceitful or he's so incompetent that I can't rely upon [his testimony]." [FN970] Lindquist believed that the episode contributed to a taint that spread across the government's case, which made it impossible for the jury to trust what the government was saying. That lack of trust was a "big part of the trial." [FN971] d. Erroneous FBI Diagram of Sniper/Observer Position In our view, the erroneous diagram is attributable to Dean's failure to mark the position when Horiuchi identified the spot from which he had fired. Furthermore, had Grover and Taister been more thoroughly briefed on events during the standoff, they would have known that the outbuildings had been moved. The lack of precision in preparing the shooting position diagrams could have had a serious effect on the government's trial preparation and could have been admitted as demonstrative evidence during trial if the mistake had not been detected. Although the mistake was discovered before trial, the prosecution was concerned that the diagrams constituted exculpatory material that could have had a critical impact at trial. [FN972] e. Erroneous Diagram of the Y The investigators who were sent out to take the measurements and prepare diagrams of the crime scene did not have a sufficient understanding of the facts and circumstances. Surely, in such an important investigation, it was necessary for these agents to have a thorough knowledge of the events, possibly based on briefings from participants themselves. The FBI should have had complete and accurate briefings for agents conducting the Shooting Incident Review. The unavailability of one of the Visual Information Specialists during a crucial stage led to further confusion and further inaccuracy. This demonstrates a lack of overall planning and coordination in conducting such investigations. In our view, this error should have not occurred. The precision essential for crime scene searches and evaluations was inexcusably lacking in this investigation. The mix-up in sending the "working" diagram could have been avoided had communications been better and had more professional procedures been in place. f. Jackie Brown and Cabin Clean Up Jackie Brown's actions have been criticized as contaminating the crime scene. Technically, that is correct. However, her efforts may have served a more important purpose in contributing toward the resolution of the crisis. It is unclear whether the FBI command structure considered the significance of Brown's actions. Montgomery did not know whether Brown's actions were authorized or whether they were spontaneous. He affirmed that we was not consulted before Brown obtained the water and that he was not in a position to delay her while her plans were assessed. [FN973] We have not been able to determine whether anyone weighed the likely negative impact of contamination of the crime scene against the potentially positive impact Brown's actions might have in resolving the crisis. In our view, the fact that Brown was able to return to the cabin with water and paraphernalia without the approval of Montgomery, the FBI's ranking supervisor at the forward command post, shows that the command and control of the situation was less than perfect. Nevertheless, in retrospect we believe that the decision to allow Brown to clean the cabin, however it was reached, was proper. 4. CONCLUSION Those involved in the crime scene searches at Ruby Ridge have assessed those searches very differently. Those who planned and supervised the searches generally gave them high marks. [FN974] Other law enforcement personnel who participated in or became familiar with the searches were highly critical. The criticism came from FBI personnel, as well as others. In our view, three factors contributed significantly to the difficulty of conducting the crime scene searches. First, the searches were conducted during an ongoing effort to resolve the crisis. Second, an unusually large number of law enforcement personnel from a wide variety of federal, state, and local law enforcement components were at the site, adding to the confusion and congestion. Third, the terrain was extremely rough, uneven, and covered with dense foliage. Many of the deficiencies of the crime scene searches are attributable to one or more of those factors. However, in our view, other shortcomings probably could have been avoided, for example, the failure to cordon off the search ares at the conclusion of a search, the inexperience of those who operated metal detectors that resulted in the failure to discover at least one important piece of evidence, the "magic bullet" episode, the lack of precision in measuring the location of discovered evidence, and the failure to understand the possible negative impact of Brown's actions. Many of the problems that attended the crime-scene searches could have been avoided had an experienced evidence-recovery team been summoned. We disagree with Glenn's characterization of Ruby Ridge as a "normal murder crime scene." The use of the Evidence Response Team would certainly have added badly needed experience and expertise to the investigation and may very well have alleviated a number of the problems that we discuss here. The Ruby Ridge crime scene investigation was difficult. Those who conducted the search had participated in the tiring, tension filled operation that ultimately resolved the standoff. As a consequence, some aspects of the crime-scene search were confused and incomplete. The utilization of sophisticated, professional, evidence location, retrieval, identification, and preservation techniques in this case was necessary. _________________________________________________________________ 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 I) 914 SIOC Log, August 22, 1992, at 5:20 p.m. (EDT). 915 Sworn Statement of Eugene Glenn, January 12, 1994, at 30. 916 FD-302 Interview of Lucien Haag, October 12, 1993, at 2. 917 Id.; FD-302 Interview of Richard Graham, October 13, 1993, at 2; FD-302 Interview of Gregory Rampton, October 18 & 19, 1993, at 44. 918 Local police had arrested armed individuals attempting to reach the Weaver cabin. 919 FD-302 Interview of Michael Dillon, October 25, 1993, at 4. 920 Rampton FD-302, October 18 & 19, 1993, at 6. 921 FD-302 Interview of Larry Wages, October 13 & 15, 1993, at 3; Rampton FD-302, at 5. 922 FD-302 Interview of Joseph Venkus, October 18 & 19, 1992, at 5-6. 923 Id. at 6. 924 Only one of the deputy sheriffs was familiar with the equipment. FD-302 Interview of Donald Magee, October 4, 1993, at 1-2; FD-302 Interview of Carl Shepherd, October 5, 1993, at 2. 925 For example, the first item of evidence photographed on the first role of film was designated "A-1." 926 Venkus FD-302, at 5-6. 927 Wages FD-302, at 5. On Thursday, August 27, agents videotaped the Y crime scene and the fern field, the area near the Y where the marshals' observation team had received fire while moving from their position to the spot where Deputy Marshal Degan had been killed. Following the August 24 search, Venkus was occupied with drying out the evidence that had been retrieved. Venkus FD-302, at 7. 928 Venkus FD-302, at 7. On August 29, Wages supervised a grid search of another portion of the Y crime scene. The same procedure was followed as had been utilized the day before. No evidence was found during this search. Wages FD-302, at 4-5. 929 Rampton FD-302, at 4-5. 930 Venkus FD-302, at 5-6; Wages FD-302, at 4. 931 Rampton FD-302, at 11. 932 Venkus FD-302, at 8.. 933 Wages FD-302, at 5. 934 Howen Interview, Tape 6, at 13-14. 935 Lindquist Interview, Tape 3, at 16. 936 Wages FD-302, at 5. 937 During the search, four additional brass/bullets were discovered and designated L-2 through L-5. Id. at 5-7. 938 See discussion in Section IV(O). 939 FD-302 Interview of Kelly Kramer, October 12, 1993, at 2. Wages also asked FBI Visual Information Specialist Grover to photograph a spent round of ammunition in place. Grover was not told that the evidence had been removed from and returned to the location. FD-302 Interview of Cyrus Grover, August 6, 1993, at 2. 940 Wages FD-302, at 6-7. However, Rampton told investigators that when Wages arrived at the command post he showed him the bullet. Rampton FD-302, at 6-7. 941 The theodolite system is a laser surveying instrument, which pinpoints locations in relation to a reference point. 942 Grover FD-302, at 2. 943 Id. at 3; Taister FD-302, at 4. 944 Rampton FD-302, at 11. 945 FD-302 Interview of James Cadigan, August 10, 1993, at 4. 946 Taister FD-302, at 3; Grover FD-302, at 3; Cadigan FD- 302, at 5. 947 Lindquist Interview, Tape 3, at 11-12. Lindquist was convinced that the diagram was wrong because Horiuchi consistently identified a different location as his position when he took the shots. Id. at 13-15. 948 Id. at 13-14. 949 Cadigan has said that he should have placed a stake or some other marker at the spot Dean had shown him. Cadigan FD- 302, at 5. 950 Lindquist Interview, Tape 2, at 11-13. 951 FD-302 Interview of George Sinclair, October 7, 1993, at 3. 952 Rampton FD-302, at 8. 953 Grover FD-302, at 3. 954 Special Agent Curtis Kastens of the Idaho State Bureau of Investigation was assigned to the search as a photographer because the team responsible for the grounds around the Weaver cabin did not have a photographer. FD-302 Interview of Curtis Kastens, October 5 & 22, 1993, at 1. 955 Rampton FD-302, at 8. 956 Id. at 9. Only a representative sampling of the casings found outside the rear of the cabin was taken into evidence. Because the front of the cabin and the rocky outcropping were seen as more important to the investigation, all cartridge casings found in those areas were seized. FD-302 Interview of George Sinclair, October 7, 1993, at 4. According to Sinclair, Howen did not object to taking only a sample of the casings from outside the rear of the cabin. Id. 957 Sinclair FD-302, at 3. 958 Howen Interview, Tape 11, at 30-31. 959 On September 9, 1992, Dillon told FBI Special Agent Richard Powell to retrieve a blue spiral notebook and submitted it to the secure evidence storage area. FD-302 Interview of Richard Powell, October 8, 1993, at 3. We have been unable to determine why the notebook was unavailable for trial preparation. 960 FD-302 Interview of Jackie Brown, October 5, 1993, at 3. 961 FD-302 Interview of Frederick Lanceley, October 19, 1993, at 5. 962 Jackie Brown FD-302, at 3. 963 See, e.g., Grover FD-302, at 1-2; FD-302 Interview of Michael Taister, August 6, 1993, at 3; Lindquist Interview, Tape 3, at 15; FD-302 Interview of Curtis Kastens, October 5 & 22, 1993, at 2. After the Y had been searched on August 24 and 28, the area was not cordoned off because it was thought that additional searches would not be necessary. Wages FD-302, at 4. 964 FD-302 Interview of Greg Sprungl, August 30, 1993, at 3. 965 The FBI used three metal detectors during the initial searches at the Y. Two were rented and appeared to be "well used." The rented detectors were not as sensitive as the third. FBI Special Agent David Barker operated the third detector, but had no experience in using a metal detector. Apparently, none of the operators of metal detectors at the initial searches were experienced. FD-302 Interview of David Barker, October 12, 1993, at 1-2. According to Lucien Haag, the use of metal detection equipment is a skill that "needs to be continuously honed." He recommended that agents be taught how to operate detector equipment effectively. FD-302 Interview of Lucien Haag, October 12, 1993, at 3. 966 For example, if a bullet casing had been found 10 feet from the stump, Thundercloud's diagram would not reveal the precise location of the casing along an arc twenty feet from the stump. 967 Special Agent Curtis Kastens of the Idaho Bureau of Investigation participated in the searches. He thought that the searches at the Y wee not handled appropriately for a murder investigation and that some form of reconstruction, including "to-scale elevations," should have been attempted. Kastens also thought that more time should have been allowed for accurate measurements. Kastens FD-302, at 3. 968 Lindquist Interview, Tape 3, at 17. During Thundercloud's cross examination, the defense was very critical of the failure to utilize triangulation or compass headings. The issue consumed an entire afternoon. However, Lindquist does not believe that the jury considered the matter to be a major issue. Id at 10. 966 For example, if a bullet casing had been found 10 feet from the stump, Thundercloud's diagram would not reveal the precise location of the casing along an arc twenty feet from the stump. 967 Special Agent Curtis Kastens of the Idaho Bureau of Investigation participated in the searches. He thought that the searches at the Y wee not handled appropriately for a murder investigation and that some form of reconstruction, including "to-scale elevations," should have been attempted. Kastens also thought that more time should have been allowed for accurate measurements. Kastens FD-302, at 3. 968 Lindquist Interview, Tape 3, at 17. During Thundercloud's cross examination, the defense was very critical of the failure to utilize triangulation or compass headings. The issue consumed an entire afternoon. However, Lindquist does not believe that the jury considered the matter to be a major issue. Id at 10. 969 For a discussion of the controversy at trial involving photographs of this bullet see Section IV(O). 970 Id. at 26-27. 971 Id. at 27. 972 Id. at 12. 973 Sworn Statement of Robin Montgomery, October 25, 1993, at 3 . 976 Wages described the first search of the Y on August 24 as "well-organized." Wages FD-302, at 4. Dillon said that the search was conducted in a "very professional and methodical manner." Dillon FD-302, at 4. Venkus declared that, "given the circumstances and conditions that existed, an excellent job had been conducted by all who participated." Venkus, FD-302, at 7. _________________________________________________________________ IV. SPECIFIC ISSUES INVESTIGATED J. THE FBI LABORATORY 1. INTRODUCTION The U.S. Attorney's Office for the District of Idaho ("USAO"), components of the FBI, the U.S. Marshals Service, local law enforcement agencies, and the trial court all criticized the performance of the FBI Laboratory ("Laboratory") during the course of the Weaver trial. In this section, we will examine the timeliness and quality of the Laboratory's response to requests for tests, its refusal to perform certain tests, and its neglect to do others. 2. STATEMENT OF FACTS a. FBI Laboratory Processing Procedure Special Agents Gregory Rampton and Joseph Venkus, the FBI case agents for the Weaver/Harris prosecution, coordinated the submission of evidence to the FBI Laboratory for examination. They were responsible for disseminating the results of the examinations to the U.S. Attorney's Office in Boise. Assistant U.S. Attorney Lindquist was primarily responsible for Laboratory related issues for the prosecution. It is FBI policy that when the Laboratory receives a request from a field office to examine evidence, a principal examiner is assigned to the matter. The examiner assigns a priority to the request. Cases for which the FBI is primarily responsible are given the highest priority, followed by cases involving violent crimes, cases involving crimes against property, and cases in which a judicial proceeding is unlikely. In practice, we found that pendency of a trial date is the overriding factor determining whether a case becomes a priority. The principal examiner forwards items of evidence to the appropriate unit within the Laboratory, prepares a report when the examination has been completed, and returns the items to the field office with the report. The principal examiner in the weaver matter was Supervisory Special Agent James Cadigan of the Firearms/Toolmarks Unit. Cadigan directed the requests for examinations from the field to various Laboratory components; formalized the final reports; and oversaw the return of evidence. One hundred and ninety nine pieces of evidence were submitted to the Laboratory for 350 examinations. Cadigan conveyed the results of the examinations to Venkus or Rampton by telephone, who would send a written report by facsimile to the USAO. When the agents received the final, written Laboratory reports, they would also send them to the USAO. The Laboratory generated twelve reports in the Weaver matter. b. Timeliness and Neglected Tests On January 8, 1993, a conference was held in the chambers of U.S. District Court Judge Lodge. The defense requested that the trial date of February 2, 1993 be postponed because of the volume of information and documents to be reviewed and because not all of the Laboratory examinations had been completed. Judge Lodge admonished the government to provide the results of the examinations quickly. Assistant U.S. Attorney Howen told the court that he was attempting to comply with the court's instructions, but that he had no control over the delay caused by the FBI Laboratory. [FN975] Following Weaver's sentencing, Judge Lodge issued a contempt order against the FBI and levied a fine because the prosecution had "receiv[ed] less than full cooperation from the FBI" and the Bureau had not produced items of evidence "timely." [FN976] The court referred to the FBI's "recalcitrance" and held that he Bureau had "evidence[d] a callous disregard for the rights of the defendants and the interests of justice and demonstrate[d] a complete lack of respect for the order and directions of [the] court." [FN977] This inquiry had determined that, by January 8, 1993, the date of the chambers conference, the FBI Laboratory had completed four reports. [FN978] After the conference, the Laboratory submitted reports on January 8, January 13, January 21, January 22, February 25, March 17, April 12, and April 13. The 44 items analyzed in those reports were submitted to the Laboratory between August 28 and November 27, 1992. [FN979] The majority of tests outstanding on January 8 were serology tests and hair, fiber, and DNA tests of pieces of clothing. The FBI received Vicki and Sammy Weaver's hair and blood samples on January 5 and 29, 1993. Deputy Marshal Degan's blood samples were prematurely returned to the Seattle field office where they were allowed to spoil. Most of the test results on the Weaver blood samples were included in the January Laboratory reports. After the chambers conference, the FBI Laboratory received eight requests for examinations in the Weaver matter, which were completed according to the following schedule: Date of Communication - Date of Response January 11, 1993 - February 25, 1993 January 20, 1993 - March 17, 1993 January 28, 1993 - February 25, 1993 February 11, 1993 - February 25, 1993 March 21, 1993 - April 12, 1993 April 2, 1993 - April 13, 1993 April 9, 1993 - April 13, 1993 May 26, 1993 - June 7, 1993 [FN980] The first examination that appears to have been neglected was a request on August 27, 1992 to determine whether two pieces of metal were once part of Degan's canteen clip. The second neglected examination was a request on September 9 to compare blood samples of Vicki and Sammy Weaver with blood found on tow jackets and a pair of pants. [FN981] The third was a request on October 28 to determine whether holes in Degan's backpack and the clothing it contained had been caused by a bullet. [FN982] There was no response to these requests in the Laboratory report of December 23, 1992. The field office again requested these examinations on January 5, 1993. The Laboratory responded on January 22. A more detailed discussion of these tests follows. (1) Degan's Backpack Cadigan told our inquiry that he does not know why the examination of the backpack and its contents was overlooked. The report on the backpack notes that an "exit" hole in the backpack and holes in the clothing inside had a "linear relationship" and could have been caused by a bullet or bullet fragments. The report states that no other determinations or conclusions could be made. [FN983] During the trial, a defense attorney found another hole in a fold of the backpack. [FN984] We asked Cadigan whether he had attempted to locate all entrance and exit holes in Degan's backpack. He replied that he had examined the backpack closely and did not discover any damage, other than that noted in his reports. [FN985] (2) Blood and Hair Examinations After being retrieved from Ruby Ridge, Deputy Marshal Degan's body was taken to a morgue for an autopsy, which was performed on August 22, 1992 by Dr. George Lindholm. FBI Special Agent John attended the autopsy, along with representatives of the U.S. Marshals Service, the Boundary County Sheriff's Office, and the Boundary County Coroner's Office. A photographic record and log of the autopsy was kept, and John retained several items of evidence, including hair samples and two tubes of blood, which were sent to the Laboratory on August 14 for "whatever analysis you deem appropriate." The Laboratory received the evidence on August 25, 1992. Within two days, Cadigan performed the obvious tests on the bullet fragments which had been removed from Degan's body and provided the preliminary results to SIOC for transmission to the crisis site. Cadigan sent the final results to the Seattle field office which had sent the material. Because no specific requests had been made as to the blood and hair samples, Cadigan asked the field office to specify the tests that should be conducted. The field office was unsure about the tests needed and explained that the material had been sent just to "cover all the bases." [FN986] In September, 1992, the Laboratory received Harris and Randy Weaver's blood samples. Because the Laboratory had "insufficient space to maintain items of evidence," they were returned to the field office. [FN987] The items were placed in a bulky exhibit, and the blood spoiled because it was not refrigerated. The FBI Hostage Rescue Team discovered Sammy Weaver's body, while clearing the birthing shed near the Weaver cabin on August 23, 1992. Dr. Lindholm conducted an autopsy on August 25. Special Agent John attended, along with representatives of the Boundary County Sheriff and Coroner's Offices. At the time, the circumstances surrounding Sammy Weaver's death were unknown, and the Sheriff's Office was proceeding on the assumption that the death was a homicide. Consequently, the office took samples of all the evidence from the autopsy, including blood and hair samples, for the Idaho State Crime Laboratory. [FN988] On August 31, 1992, Dr. Lindholm conducted an autopsy of Vicki Weaver's body, attended by John and representatives of the U.S. Marshals Service, the Boundary County Sheriff's Office, and the Boundary County Coroner. The FBI retained several items, including hair samples, as evidence, but there is no indication that a blood sample was retained. [FN989] On September 3, the evidence was sent to the FBI Laboratory. [FN990] Dr. Lindholm's autopsy reports for Degan and Sammy and Vicki Weaver show that body fluids and tissue, including purge fluid and blood and hair samples, were taken during each autopsy. As standard procedure, Dr. Lindholm provided blood and hair samples to the investigating agency. [FN991] On September 3, 1992, the FBI Laboratory was asked to examine certain clothing to see whether blood and hair could be identified as that of Randy Weaver, Kevin Harris, Vicki Weaver, or Sammy Weaver. [FN992] Cadigan submitted the clothing for hair and fiber tests. These tests were completed on October 2. When Rampton reviewed the December 23, 1992 Laboratory report, he discovered that blood and hair examinations had not been performed. The Laboratory told him that blood samples for Degan, Vicki Weaver, and Sammy Weaver and Harris' hair sample had not been sent to the Laboratory. [FN993] On January 4, 1993, blood samples taken from Degan, Sammy Weaver and Vicki Weaver were obtained from Dr. Lindholm and sent to the Laboratory. [FN994] The examinations were completed and reported on January 21. On January 28, pursuant to a court order, samples of Harris' hair were taken and forwarded to the FBI Laboratory. When the FBI Laboratory received a request for additional blood and hair comparisons on January 5, 1993, Cadigan realized that the FBI did not have the blood samples. The samples were submitted on January 6. [FN995] The examinations were completed and provided to the USAO on January 15 and given to the defense on January 27. c. Refusal to Perform Tests and Hiring of Independent Experts In one instance, the Laboratory refused to conduct a requested examination and, in several instance, the Laboratory determined that certain examinations were not possible. During trial preparation, the USAO entered into contracts with three forensic specialists: Lucien Haag, a "shooting reconstructionist," Richard Graham a metal detection expert, and Dr. Marin Fackler, a wound ballistician. According to the prosecutors, these people were retained because the FBI Laboratory was unwilling or unable to provide assistance in their areas of expertise. [FN996] (1) Refusal to Conduct Test On March 21, 1993, the Laboratory was asked to determine the caliber of the bullet which passed through Sammy Weaver's jacket causing the fatal wound. The Laboratory may, at the examiner's discretion, refuse to conduct an examination if the examination and result have no basis in scientific theory, thereby precluding the examiner from testifying as to the result. Cadigan has asserted that no test recognized by forensic science enables an examiner to determine with any certainty the caliber of the bullet which caused a hole in clothing because there are too many variables and the exact anatomical position of the victim cannot be determined. For this reason, Cadigan refused to conduct the examination. When the Laboratory received another request to determine the caliber of the bullet that had struck Sammy Weaver, the Laboratory did conduct tests, but could not "definitely state exactly what caliber bullet went through the coat." [FN997] (2) Shooting Reconstruction Early in the trial preparation, Lindquist told the FBI case agents that the case needed an expert to reconstruct the shooting events at the Y on August 21 to corroborate the marshals' testimony. The agents replied that "there's no such thing." Lindquist explained that a shooting reconstructionist, on the basis of the physical evidence, can determine, among other things, the "directionality" of a bullet's trajectory. [FN995] After some discussion, case agent Venkus called the FBI Laboratory and was told that the Laboratory does not do shooting reconstructions. With a sense of exasperation, Lindquist asked one of the deputy marshals assigned to the case to find one of the best shooting reconstructionists in the country and, within 24 hours, he was given Lucien Haag's name. When they spoke, Haag asked Lindquist why he was not using the FBI Laboratory because Haag had worked previously with someone in the Laboratory on a reconstruction. Confused by the conflicting information he had received, Lindquist called Cadigan and was told that the Laboratory did do shooting reconstruction and that he was the FBI's expert in the area. Cadigan asked why a private expert was needed. Lindquist told Cadigan that he would continue with the private expert, though he would appreciate the FBI's cooperation. Lindquist accepted Cadigan's request to accompany the prosecutors when they visited the crime scene in March 1993. [FN999] According to Lindquist, Cadigan seemed enthusiastic about participating in the case. Lindquist found Cadigan very helpful from that point forward, although he appeared far less knowledgeable than the private expert. [FN1000] Rampton recalled Lindquist's request for a shooting reconstructionist and telling Lindquist that the Laboratory did not have shooting reconstruction as a single discipline. Rampton told Lindquist that he would check with the Laboratory. He spoke with Cadigan, who confirmed that the Laboratory did not have shooting reconstruction as a single discipline. Rampton claims he informed Lindquist of this and heard nothing more until Haag had been retained. [FN1001] Cadigan recalls a phone call from a case agent about whether the FBI had a shooting reconstructionist. Cadigan told the agent that no single person could testify about every aspect of the reconstruction. Cadigan confirmed this within the Laboratory and informed the case agent that a shooting was usually reconstructed within a confined space such as a building so that impact points could be located and angles established. Although the shooting at the Y would be more difficult to reconstruct, Cadigan said that the Laboratory would do what it could and that the agent should advise the Laboratory if the prosecution wanted a reconstruction. Cadigan heard nothing more on the matter. [FN1002] Lindquist does not recall Cadigan's explaining that the FBI Laboratory has a multi-disciplinary approach to shooting reconstruction or that no one person would be able to testify about the many examinations. [FN1003] (3) Wound Ballistics and Metal Detection During this inquiry, we found no requests by the USAO for FBI experts in metal detection or wound ballistics. Metal detection experts are available within the FBI's Information Services Division. Although the FBI Laboratory does not have a wound ballistics expert, it consults with experts at the Armed Forces Institute of Pathology, and this expertise would have been available on request. (4) Acoustic Testing Initially the prosecution believed that evidence of the acoustics of the shooting scene on August 21, 1992 would be valuable. The prosecutors were referred to an FBI acoustics expert to evaluate this aspect of the case. Lindquist was disappointed with the FBI's expertise in the field. [FN1004] The prosecution did attempt an acoustics test in the area of the Weaver cabin with the assistance of two marshal and ultimately concluded that such a test would not be productive. d. Failure to Comply with Discovery The final issue raised by Judge Lodge about the FBI Laboratory concerns the mailing of notes and test firings of the weapons. The defense orally requested production of Cadigan's notes and the test firings at the end of the first week or the beginning of the second week in May 1992. Cadigan recalled receiving a call, possibly on Monday, May 10, 1993, from Venkus advising him that the court intended to order production of his notes and the test firings. Cadigan received "the distinct direction" from Venkus to wait until a court order had been issued before sending test samples and notes. [FN1005] He sought advice on the matter from the FBI's Legal Counsel Division, which suggested to the USAO reasons why the notes and the test firings should not be given to the defense. [FN1006] On Thursday, May 13, Cadigan received an angry call from Special Agent Dillon asking where the test firings were. Cadigan explained that he was waiting for a court order. Dillon told Cadigan to send the notes and test firings to Boise immediately. Because Cadigan did not wish to "cause the Agents a problem," he facsimiled his notes to Boise. The facsimile was poor, and Cadigan express-mailed the notes and test firings to Boise, securing the envelope flaps with tape before placing them into a box for shipment. The following day, Friday, Cadigan was informed that three of the envelopes had opened during shipment and that the contents had spilled out and had become commingled. He instructed the caller to express-mail the test firings to the Laboratory where he could rectify the problem by examining microscopic markings. The test firings arrived on May 17, 1993. Cadigan immediately placed them in the appropriate envelopes and sent the test firings. by express-mail to Boise. [FN1007] The prosecution advised the Court that the test firings available for defense review on May 18. According to Dillon, this delayed the trial and produced additional discovery problems. 3. DISCUSSION In analyzing the performance of the FBI Laboratory, we interviewed field and Laboratory personnel; analyzed field communications requesting examinations and transmitting physical evidence; audited Laboratory reports and tracking of examined articles; assessed criticisms by agencies and interested parties; inspected the crime scenes; and reviewed grand jury testimony, court proceedings, and autopsy reports. a. Problems with Delays in Test Results Our investigation revealed that Judge Lodge, as well as the trial team, the FBI field agents, and their supervisors were not satisfied with the response of the FBI Laboratory in this case. [FN1008] In exploring the delays in conducting and reporting examinations, we discovered a lack of coordination, communication, and cooperation within the FBI. Unfortunately, these delays had significant impact on the government's discovery obligations and the way the government was perceived by the court and at trial. Perhaps every prosecution team thinks that its case is most important and that the Laboratory should respond accordingly. In this case, we agree with the prosecutors that the Weaver prosecution was a most important case that should have been placed on an expedited and coordinated tracking system. We question the wisdom of the FBI Laboratory's practice of using the trial date as the primary triggering criterion for Laboratory results. It is beyond dispute that a trial team needs test results well before the trial and, ideally, before they must be turned over to the defense. [FN1009] We also question the practice of accumulating test results in a single report. Reporting test results as they are determined would enable problems to be detected and resolved earlier. The procedure would also permit additional tests to be requested and completed in a ore timely fashion. Our inquiry found that written notifications to the field beyond these collective reports were also late or non-existent. Although or inspectors were told that telephonic notifications were made on a regular basis, no documentation could be located. Consequently, we can make no specific determination of the number, date, or contents of telephonic notifications. The prosecutors said they received no Laboratory test results until the latter part of November or the first part of December about evidence they began to collect in August. [FN1010] We find it unreasonable that tests requested in August and September were completed in December. We find the practice of sending samples back to the field because "specific instructions" are not contained in the request unreasonable and indicative of poor communication and coordination. [FN1011] When Laboratory tests require additional evidence or specific instructions, communication with the most knowledgeable people, the case agents or the prosecutors, should be continuous. The delay caused by the lack of blood samples could have been prevented by coordination and effort. When Degan's blood samples were shipped with requests that were not "specific" enough for the Laboratory, it should have contacted the case agents to get specific advice. Instead, the Laboratory sent the blood to the transmitting office where it was allowed to spoil. Cadigan noted that the case agents did not "key on" the return of samples. [FN1012] We do not believe the responsibility for this delay lies wit the agents alone. The December discovery that the blood of Vicki Weaver and Sammy Weaver and Kevin Harris' hair samples had not been transmitted to the FBI Laboratory for tests requested in early September in another example of a lack of coordination. Cadigan believed that the Laboratory received requests for examinations that fit the prosecutors' "theory of the week" and that the resulting tension between the prosecutors and the case agents adversely affected the coordination necessary between the field and the Laboratory for timely and effective processing of evidence. [FN1013] One of the reasons the case agents give for the continued delays after Judge Lodge's Order was the burden placed on the Laboratory by unnecessary and unreasonable requests by the USAO. According to Rampton, the sole purpose of some requests was to avid the defense focusing on Degan's weapon, upon which the Laboratory had already completed and ejection pattern test. However, Lindquist told us that test firings of all weapons were necessary to locate where Degan and the others, including Harris and Sammy Weave, were during the shooting at the Y. Although he conceded that the test of Degan's weapon was more critical, Lindquist wanted to have all the weapons tested to show the jury that the government was not being selective in its testing. We find this explanation reasonable. We are not convinced that the delays were the result of unnecessary requests by the prosecution team. Rather, we find a lack of initiative by the Laboratory in conducting examinations beyond the specific request. The use of private experts apparently renewed the Laboratory's interest in an commitment to the case. That was a costly and unnecessary expense. Our inquiry found that nothing done by the independent examiners fell outside the FBI's expertise. In addition we find that the Laboratory's failure to respond in a timely manner contributed to the trial judge's perception that the government was not meeting its discovery obligations. Although the FBI Laboratory did much significant and professional work, the problems apparent in delays and lack of initiative should be remedied. If the primary cause for delays and failure to coordinate is the result of strained resources, priorities should be reevaluated. If the response in this matter is typical of high profile homicide cases involving the death of a federal law enforcement officer and two citizens, we wonder about the response to matters of less importance. b. Failure to Provide Expertise and the Hiring of Independent Experts Our investigation revealed a lack of cooperation and initiative by the Laboratory beyond specific tests requested. We found that the requisite expertise was present at the Laboratory, but it was something that the USAO had to discover. We share the prosecutors' disappointment in the Laboratory's lack of initiative or involvement in the case. We can empathize with the prosecutors who wanted to use the FBI for experts and receive the benefit of the Laboratory's suggestions in developing the prosecution theory. Although we cannot address the soundness of the examinations the private experts and prosecutors requested, many of the problems and the perception of incompetence could have been avoided by direct conversation between the prosecutors and the Laboratory. Cadigan was aware that the idea for some tests, including the attempt to recreate the hole in Sammy Weaver's jacket, had originated with the private expert, and the case agents were frustrated that the prosecutors were going outside "normal investigative channels" by hiring experts to conduct "alternative examinations" that would not be done by the Laboratory. [FN1014] Cadigan believes that one of the main differences between the FBI Laboratory and private examiners is that the FBI Laboratory is "extremely conservative" and that FBI examiners will not testify to results not based on scientific fact because the Laboratory must maintain its reputation of being able to withstand cross examination. He believes that this distinguished FBI scientists from the majority of experts retained by defense counsel, whose primary purpose is to propose alternate theories to those advanced by the prosecution. If the government's cases are to be presented successfully and fairly in the courtroom, the technical expertise of the FBI Laboratory must be available to assist trial teams beyond areas about which Laboratory experts can testify. For example, test firings of the weapons at the Y during the August 21 shooting were significant for planning the prosecution's theory and establishing trial strategy. The prosecutors and the rest of the trial team needed timely assistance from experts in interpreting evidence. Developing alternate theories of how events occurred is part of the investigative and trial preparation process. The scope of information that a prosecutor must develop should not be limited during trial preparation only to admissible tests and evidence. An example of a test conducted by the independent examiner that the prosecution found helpful was an identification by elimination. The independent examiner did an analysis of cartridges found at the Y with weapons known to have been on the scene to exclude those that could not have been responsible for the cartridges. The FBI Laboratory expert viewed this form of identification as unscientific in that other unknown weapons may have been at the site. Nevertheless, the elimination of some weapons would assist the prosecutor in making decisions. It would also help at trial to know which weapons are capable of making a bullet hole associated with the fatal wound. We believe a more coordinated, professional, creative, and cooperative approach to litigation and investigations would be far more helpful than the process we discovered in the Weaver matter. c. Discovery Demand for Test Firings and Laboratory Notes Our investigation found that the delay in turning over Laboratory notes and test firings was one of several examples of the FBI resistance to, disagreement with, and misunderstanding of its discovery obligations in the Weaver case. We found the FBI's actions and decisions inappropriate. A court should not be compelled to order discovery compliance to resolve disputes between components of the government. Understandably, the delays caused by this attitude evoked a negative response from the court and counsel. We found no evidence that the delays in the Laboratory tests were designed or intended to postpone the trial or obstruct justice. The decision to wait for an order was in conflict with the "open discovery" strategy of the USAO and the government's representations of cooperation in court. Objections to discovery should have been addressed to the court through the USAO. The accidental commingling of the materials sent to Idaho and the events that followed contributed to the court's perception that the FBI had no regard for the rights of the accused and for the administration of justice. 4. CONCLUSION The lack of coordination and communication both within the FBI and with the USAO appears to be the major cause of the delays and the other problems examined in this section of the report. _________________________________________________________________ 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 J) 975 Transcript of proceedings in United States v. Randall C. Weaver and Kevin L. Harris, CR 92-080-N-EJL, on January 8, 1993. 976 Order, October 26, 1993, at 2. 977 Id. at 10, 13. 978 These reports were submitted on September 2, 1992, October 31, 1992, November 18, 1992, and December 23, 1992. 979 Items were also submitted on January 5, 1992. 980 On January 20, 1993, Lindquist sent Cooper and Roderick's weapons to the Laboratory and, on February 11, he sent Harris and Sammy Weaver's weapons for ejection pattern tests. The results of the test on Degan's weapon were reported on January 22. On January 28, the Laboratory reported that the examinations requested on January 20 would take ten weeks to complete. They were actually completed on March 17. On February 9, the Laboratory reported that the examinations requested on January 28 would take ten weeks to complete. They were completed on February 25. On March 31, the Laboratory reported that the examinations requested on March 21 would take ten weeks to complete. They were completed on April 12. In our opinion, these inaccurate estimates show a lack of organization and probably made the prosecution less willing to request additional testing. 981 FD-302 Interview of James D. Cadigan, August 17, 1993, at 46-48. 982 Id. at 62. 983 Id. at 131. 984 The defense asserted that the two holes would be evidence that Degan received a shot to his back, spun around, and received a fatal shot from Cooper. This theory ignores the identification of Harris' bullet as the fatal shot to Degan's chest. 985 Cadigan FD-302, September 30, 1993, at 2. 986 Cadigan FD-302, August 10, 1993, at 7. 987 Cadigan FD-302, August 17, 1993, at 6. 988 FD-302 Interview of Jeffrey John, August 25, 1992. There is no indication in the field office that evidence from the autopsy of Sammy Weaver was sent to the FBI Laboratory. 989 Id. 990 The only evidence from the autopsy that was not sent to the FBI Laboratory were the fingerprint digits, which were examined by the local police department. 991 Dr. Lindholm told this inquiry that he was disappointed that the agents attending these autopsies were not knowledgeable about events surrounding the injuries. FD-302 Interview of Dr. George Lindholm, October 7, 1993, at 2. 992 Blood and hair samples were taken from Randy Weaver after he surrendered and were forwarded to the FBI Laboratory on September 1, 1992. Cadigan FD-302, August 17, 1993, at 25. There is no record of the Laboratory receiving blood samples of the Weaver group, other than Randy Weaver's. An FBI interview report erroneously stated that a sample of Harris's hair had been taken. After his surrender, Harris was taken to a hospital for treatment. According to a report prepared by FBI Special Agent James T. Davis, dated August 30, 1992, Davis took a blood sample from Harris at the hospital and Special Agent John took hair samples. The blood sample was forwarded to the FBI Laboratory on September 1, 1992. We understand that John did not obtain hair samples. 993 FD-302 Interview of Gregory Rampton, October 18-19, 1992, at 53. 994 FD-302 Interview of Mark Thundercloud, January 4, 1993. 995 Cadigan FD-302, August 17, 1993, at 76-86, 126. 996 Memorandum to Barbara Berman from Ronald D. Howen and Kim R. Lindquist, August 24, 1993. 997 Cadigan FD-302, August 10, 1993, at 13. 998 Lindquist Interview, Tape 2, at 38-39. 999 Lindquist Interview, Tape 2, at 40. Lindquist believes that these events were not the result of miscommunication and that the "image conscious FBI [attempted] to save face" after the U.S. Attorney's Office had retained a private expert. Memorandum from Ronald D. Howen and Kim Lindquist to Barbara Berman, August 24, 1993, at 4. 1000 Lindquist regretted having to spend $10,000 of taxpayers' dollars for something in which the FBI should have been expert and should have been willing to do. Id at 7. 1001 Rampton FD-302, October 18-19, 1993, at 46-47. 1002 Cadigan FD-302, September 30, 1993, at 1. Cadigan does not recall the events Lindquist described. He recalled that, in March 1993, a case agent told him that the prosecutors were going to Ruby ridge and asked whether he would be interested in accompanying them. Cadigan made arrangements to be there for two days. Cadigan said that the prosecutors never contacted him about the trip. 1003 Lindquist Interview, December 1, 1993, Tape 2, at 41. 1004 Memorandum from Ronald D. Howen and Kim R. Lindquist to Barbara Berman, August 24, 1993, at 7. Bruce Koenig, FBI Operational Support Unit, Information Resources Division, was prepared to render assistance, but Rampton or Lindquist told him to discontinue his work. FD-302 Interview of Bruce Koenig, October 28, 1993, at 2. See Section IV(N) of this report for additional discussion about this acoustical test. 1005 Cadigan FD-302, August 10, 1993, at 11. 1006 Id. 1007 Id. 1008 Both Glenn and Dillon expressed their disappointment in the Laboratory's performance. Sworn Statement of Eugene Glenn, January 12, 1994, at 31-33; FD-302 Interview of T. Michael Dillon, October 25, 1993, at 5. 1009 Although the Laboratory says that the trial date is important, FBI transmittal forms do not have a place for the date. The first record we found of a trial date was in a transmittal to the Engineering Section of the FBI Laboratory dated October 27, 1992. That entry reflects the trial date of February 2, 1993. Cadigan FD-302, August 17, 1993, at 58. Since the transmittal was sent to the Engineering Section in Quantico, Virginia, Cadigan never saw the transmittal. In fact, Cadigan 1009 (...continued) did not know the trial date until November or December. We find the principal examiner's ignorance of the data symptomatic of the poor coordination and communication in this case. We note that the case agents told our investigators that Cadigan must have been aware of the trial date because they referred to the date in their many conversations with him. 1010 Memorandum from Ronald D. Howen and Kim R. Lindquist to Barbara Berman, August 24, 1993. 1011 We also criticize the system in which the agent who collected the items is contacted when problems of this sort arise, instead of the case agent. 1012 Cadigan FD-302, August 10, 1993, at 7. 1013 Id. at 14. 1014 Cadigan FD-302, August 10, 1993, at 11. _________________________________________________________________ IV. SPECIFIC ISSUES INVESTIGATED K. THE PRELIMINARY HEARINGS OF WEAVER AND HARRIS 1. INTRODUCTION Following their arrests, government agents transported Weaver and Harris to hospitals to receive medical treatment for the gunshot wounds that they had suffered. Thereafter, the court decided to conduct separate preliminary hearings for the two men. In addition, the federal magistrate judges handling the preliminary hearings elected to combine the preliminary examination and detention hearing in one proceeding. The combined preliminary examination and detention hearing for Weaver was scheduled to begin on September 10, 1992; the combined preliminary examination and detention hearing for Harris was scheduled to begin on September 14, 1992. On Friday, September 11, 1992, one day after the Weaver preliminary hearing had begun, U.S. Attorney Ellsworth appeared in court to argue a motion seeking to continue the preliminary hearing of Harris from September 14 to September 15 in order to accommodate the additional security needs presented by the visit of Vice President Quayle to Boise on September 14. It has been alleged that Ellsworth represented in court that Harris would be permitted a full preliminary hearing that would not be terminated or interrupted by the return of a grand jury indictment. With the understanding that a full preliminary hearing would be conducted, counsel for Harris consented to the continuance. The preliminary hearing of Harris began on September 15. On the second day of the preliminary hearing, the proceeding were interrupted by Assistant U.S. Attorney Ronald Howen, who informed the court that the grand jury had just returned an indictment against Weaver and Harris. The Weaver preliminary hearing was also interrupted and the parties informed of the indictment. Although the magistrate judges ultimately decided to discontinue the preliminary hearings, they afforded Weaver and Harris the opportunity to question witnesses during the detention phase of the hearings. It has been alleged that the government acted improperly when it sought grand jury indictments while the preliminary hearings were in progress. In particular, it has been argued that once the government elected to proceed by preliminary hearing, it was stopped from abandoning the preliminary hearing. With regard to the Harris preliminary proceeding, the question has been raised whether the government, in light of the Ellsworth representations, was obliged to complete the preliminary hearing and whether the failure to do so violated any legal or ethical rules. 2. STATEMENT OF FACTS a. Arrest and Initial Processing of Weaver and Harris On August 23, 1992, a criminal complaint was filed charging Weaver and Harris with violations of 18 U.S.C. 111, 1111 and 1114. Harris surrendered to federal authorities on August 30, and was taken for medical treatment to the intensive care unit at Sacred Heart Medical Center in Spokane, Washington. The next day, Weaver surrendered and was taken to St. Lukes Hospital in Boise for treatment. On September 2, 1992, U.S. Magistrate Judge Cynthia Imbrogno conducted the initial appearance of Harris in the hospital and continued his preliminary examination and detention hearing until September 14 because of his medical condition. Assistant U.S. Attorney Howen originally planned to conduct joint preliminary hearings for Weaver and Harris but the delay caused by the medical treatment for Harris, coupled with federal time requirements, precluded this plan. [FN1015] As a result, the preliminary hearing for Weaver was scheduled for September 10th before Magistrate Judge Mikel Williams and the preliminary hearing for Harris was scheduled for September 14 before Magistrate Judge Lawrence Boyle. The magistrate judges decided to conduct the preliminary hearing and detention hearing in one proceeding. Howen was assigned to handled the Harris preliminary hearing while Assistant U.S. Attorney Lindquist was assigned to handle the Weaver preliminary hearing. [FN1016] Howen initially expected that he would present the government's case at the Harris preliminary hearing through a summary witness and that this presentation would take half a day. Lindquist expected each preliminary hearing to take two days "at the most." According to Howen, it was the normal practice of the magistrates in the district to schedule the preliminary hearing after the grand jury had convened, if the time requirements permitted, so as to avoid conducting a preliminary hearing if an indictment were going to be returned. Thus, Howen was surprised when the magistrates set the Weaver and Harris preliminary hearings before the grand jury met in [G.J.] [FN1019] From the moment that Weaver and Harris were taken into custody, Howen intended to present an indictment at the next session of the grand jury which was scheduled for [G.J.]. [FN1020] All attorneys working on the matter knew of this plan, including U.S. Attorney Ellsworth, who as head of the office, supervised Howen and Lindquist. Indeed, in his September 3, 1992 letter to Special Agent in Charge Eugene Glenn, Ellsworth noted that the grand jury proceeding would begin on [G.J.]. [FN1021] Howen always believed that if the grand jury were to return an indictment before the preliminary hearings were completed that the indictment would extinguish the right to the preliminary hearing. [FN1022] He believed that Ellsworth shared this view. [FN1023] Indeed, Howen recalled that prior to the beginning of the preliminary hearings, he discussed with Lindquist and he believes also with Ellsworth the possibility that the Harris preliminary hearing could be terminated by the return of an indictment. [FN1024] b. September 10-11. 1992 The combined preliminary examination and detention hearing for Weaver began on September 10. On that day the government spent the entire day examining Deputy Marshal Roderick. [FN1025] When the preliminary hearing resumed on September 11, defense counsel cross-examined Roderick and, in the afternoon, the government conducted the direct examination of Deputy Marshal Cooper. At the end of the proceedings on September 11, it was agreed, at the request of defense counsel Gerry Spence, that the hearing would resume on September 16, 1992. [FN1026] On Friday September 11, 1992, three days before the Harris preliminary hearing was to commence, U.S. Attorney Ellsworth, filed a motion and a supporting affidavit requesting that the Harris preliminary hearing be continued one day until September 15. Ellsworth explained that the Bose Chief of Police had expressed concern to him about being able to provide security to both the Harris preliminary hearing and to Vice President Quayle who was scheduled to visit Boise on September 14. [FN1027] In arguing the motion to the court, Ellsworth [FN1028] told the court that the U.S. Secret Service had also expressed concern over the increased security demands created by the Quayle visit. [FN1029] When Judge Boyle asked for Harris' position on the continuance, defense counsel Nevin replied: The primary concern that I have is that this not be simply an opportunity for the government to get a grand jury impaneled and to indict Mr. Harris and avoid the obligation to provide him with a preliminary hearing. And I've been afraid all along that was what was going to happen and that this would get delayed in some way so that would be possible. I understand . . . this is approximately the time when the grand jury sits and is available. And if this is just an effort to do that, then I certainly object to it. [FN1030] Now maybe Mr. Ellsworth could assure us or we could stipulate that a preliminary will be held on Tuesday and that there will not be an indictment filed which would supersede that, and in that case I would be glad to stipulate to it. The court then invited comment from the Government to which Ellsworth responded: As indicated in my affidavit there is no underlying basis for this . . . beyond the representations to me of the chief of police of Boise. . . . [W]e are prepared and ready to go to the preliminary hearing on Monday. I am willing to give assurances that we intend to have a preliminary hearing and there is no ulterior motive other than the request of the chief of police of Boise that the -- he's concerned about his security people. . . .But there is no ulterior motive other than what's expressed in the motion and affidavit. [FN1031] Thereafter, the following exchange occurred between the parties and the court, THE COURT: Okay. Do you gentlemen want to take a minute and talk privately and then I can come back in? MR. NEVIN: Yeah, I mean if -- if what counsel is saying is that there is going to be a preliminary hearing on Tuesday not matter what, why that's fine. I -- we -- no objection. THE COURT: So you would agree and stipulate to -- MR. NEVIN: Yeah. THE COURT: -- to postpone the preliminary examination and detention hearing from Monday the 14th to Tuesday the 15th? MR. NEVIN: Upon that condition, yes. MR. ELLSWORTH: The government has no problem with that stipulation. THE COURT: Well, let me just understand so I don't make a procedural mistake. And is it my understanding Mr. Nevin, that you agree based on the representations of the United States attorney that their motive is simply to honor requests by the chief of police regarding Mr. Quayle's visit to Boise, you will stipulate for a transfer of this -- or rescheduling of this from Monday until Tuesday? MR. NEVIN: Yeah. And just so I don't make a mistake in what I'm saying. I read what Mr. Ellsworth has said as a guaranty that we'll have a prelim on Tuesday, and that's there -- this is not an attempt to delay this proceeding so that an indictment could be filed or the grand jury could be impaneled, whatever. And that we will have a preliminary hearing on Tuesday no matter what. And upon that representation I stipulated that the matter may be continued until Tuesday. THE COURT: Okay, you're not asking as a condition of your stipulation that they not subsequently impanel a grand jury and return an indictment if that's such? MR. NEVIN: Yeah. No, I don't consider that to be part of our stipulation. THE COURT: All right. Mr. Ellsworth, is that agreement adequate for you? MR. ELLSWORTH: I have no problem with that agreement, Your Honor. . . . [FN1032] Thereafter, Judge Boyle granted me motion to continue the preliminary hearing until September 15. [FN1033] Ellsworth told investigator that when he argued this motion he expected that the Harris preliminary hearing would take no longer than one day. At that time, he was aware that Magistrate Judge Williams had permitted Weaver's defense counsel to subpoena the marshals to testify; however, Ellswroth did not know whether Magistrate Judge Boyle, who was new on the bench, would adopt a similar approach in the Harris preliminary hearing. Ellsworth knew that they intended to present an indictment on [G.J.] [FN1035] but denied discussing with anyone or giving serious consideration to what would occur if an indictment were returned while the preliminary hearing was in progress. [FN1036] Ellsworth stated that he was surprised when the defense objected to his request and believed that they distrusted his stated reason for the continuance. [FN1037] Ellsworth insisted that he did not believe that he was guaranteeing a full preliminary hearing. He saw no conflict between his representation and his knowledge that an indictment would be presented on [G.J.] since he thought that the hearing would take one day and, thus, would be over before the indictment was presented to the grand jury. [FN1038] Neither Howen nor Lindquist recall having any discussions with Ellsworth before he appeared in court on September 11th. [FN1039] However, Howen believed that Ellsworth knew that the government intended to present an indictment to the grand jury on [G.J.] [FN1040] and that the magistrate in the Weaver preliminary hearing was giving defense counsel unusually broad latitude in calling witnesses and in permitting expanded cross-examination of the government's witnesses. [FN1041] Furthermore, Howen told investigators that after the first day of the Weaver preliminary hearing it "was very apparent" to them that the preliminary hearing would be longer than a one or two day proceeding. [FN1042] c. [G.J.] (1) [G.J.] [G.J.] [FN1043] [G.J.] [FN1044] (2) Beginning of the Harris Preliminary Hearing The preliminary hearing of Harris began on September 15. For the first two hours, Howen argued 10 motions that the government had filed late the previous day. [FN1045] Thereafter, Lindquist spent the remaining part of the day conducting the direct examination of Special Agent Gregory Rampton while Howen left the hearing and presented witnesses before the grand jury in another room in the courthouse. At the end of the proceedings on September 15, Lindquist informed the court that he had a scheduling conflict if the Harris preliminary hearing continued the next day since he was supposed to participate in the Weaver preliminary hearing. Lindquist explained that Howen was unavailable to conduct either hearing because, "we have the grand jury convened, which is going to demand his time." [FN1046] As a result, Lindquist requested that the Harris hearing be continued. After defense counsel objected to the request, [FN1047] the following colloquy occurred: MR. NEVIN: . . . . The -- I have been concerned all through this, that where the United States was going with a grand jury indictment, and then an argument that would cut off our right to have a preliminary hearing. When we appeared in Court last Thursday, Mr. Ellsworth was there, and Mr. Ellsworth was there on a motion to continue these proceedings from yesterday until today. I said at that time, that was what I was afraid they were doing, and that if they would guarantee me that was not what they were doing, and that we would go forward with a preliminary hearing, no matter what, they holding it at another time was fine with me. I went outside here, and I saw grand jury witnesses going into the grand jury room, I know that's what they are doing. We've been told Mr. Howen can't be here tomorrow because he's got to appear before, and again that's a choice they have made for him to be there instead of here. But, in any event, if counsel will assure me that we will hold and complete this preliminary hearing, I don't mind if we continue it until a later time, and that there will be not argument upon -- if a grand jury indictment is returned, that we're not entitled to complete this hearing. And upon that insurance, let's hold it another time, whenever it's convenient, that's fine. . . . MR. LINDQUIST: . . . [C]ounsel will not have that assurance. We're all very much aware that the purpose of a preliminary hearing does not result in a charging document. The purpose is to get us to that grand jury, which is the institution that initiates the charging document. . . . I'm simply saying that we are proceeding with the grand jury as it is convened, pursuant to Court order, and I'm not going to make any commitment as to what that grand jury will do. That is not in my power. That's not my authority. [FN1048] The court then asked Lindquist whether he had "visited with Mr. Ellsworth about the nature of the hearing held last week on this very question," to which Lindquist replied that he had "about a two-meeting" with Ellsworth and had simply learned that defense counsel was cynical about the reasons Ellsworth had given for the continuance. Having ordered that the preliminary hearing reconvene the next morning, the court explained that it was going to "pull out the tape" of the earlier hearing because it believed that Ellsworth had represented that "there would be a complete preliminary hearing held in this matter." d. September 16, 1992 (1). [G.J.] [G.J.] [FN1050] [G.J.] [FN1051] Thereafter, the grand jury deliberated and returned two indictments against Weaver and Harris charging them with violations of 18 U.S.C. 1. 115, 1111 and 1114. Howen stated that when he presented the indictment to the grand jury his understanding of what Ellsworth had stated in court that previous Friday was that the continuance was requested to accommodate the security concerns of the police and the Secret Service and that the request was not a subterfuge to avoid having a preliminary hearing before an indictment was returned. He was aware of no other representations having been made by Ellsworth. [FN1052] In addition, Howen said it was unclear to him whether Judge Boyle was going to allow the same broad latitude in issuing subpoenas to Harris as Judge Williams had allowed for Weaver which would extend the length of the Harris hearing. [FN1053] Ellsworth believed that before the indictment was presented that he had briefly mentioned his September 11th statements to Howen and Lindquist but that he had not discussed the statements in detail including any representations he may have made to Nevin that Harris would have a preliminary hearing. [FN1054] Ellsworth denied that they ever discussed that the Harris preliminary hearing could be terminated by obtaining the return of an indictment. However, he conceded that they did contemplate ending the Weaver preliminary hearing in this fashion. [FN1055] (2) Harris Preliminary Hearing The Harris preliminary hearing resumed on September 16 with the defense examining its first witness, Deputy Marshal Hunt. Assistant U.S. Attorney Monty Stiles handled the proceeding while Lindquist continued to handle the Weaver preliminary hearing and Howen was before the grand jury. [FN1056] In the middle of the morning session, Howen interrupted the proceedings and informed the court that the grand jury had returned two indictments against Weaver and Harris. [FN1057] Howen requested immediate arraignment. Thereafter, the court declared a 10 minute recess. When court resumed, Howen stated that he had not been present in court when certain conversations occurred between the court and Ellsworth. The court then took another brief recess to allow Howen to review a transcript of the September 11 hearing transcribed by the judge's secretary the previous evening. [FN1058] When the proceedings resumed, Judge Boyle made it clear that he considered the initial appearance of Harris to have been at the Spokane hospital on August 30, 1991 before Judge Imbrogno and, therefore, that the time requirements of Fed. R. Crim. P. began to run from that date. [FN1059] Howen then argued that the case would have been indicted the prior week if the court had not delayed the impaneling of the grand jury for one week because of the Labor Day holiday. [FN1060] Howen then admitted that Ellsworth "did guarantee a preliminary hearing" but argued "[w]e appeared for the preliminary hearing. . . . [W]e think at this time, with the return of the indictments. . . the preliminary hearing now should go on to the detention hearing. . . ." [FN1061] Although Judge Boyle concluded that Ellsworth had moved for the continuance in good faith and seemed to agree that, as a legal matter, the return of an indictment extinguished the right to a preliminary hearing, he was concerned that the Ellsworth representations might have estopped the government from indicting Harris. [FN1062] In response, Howen adopted a narrow reading of the September 11 transcript and argued that preliminary hearings are typically brief and that all that Ellsworth was promising was that a preliminary hearing would be held on September 15 [FN1063] and that because a hearing had been held on that day, the Government was not estopped from indicting Harris. [FN1064] Howen denied having any improper motive in presenting the indictment to the grand jury and argued that because the defendants were in custody, they had a right to immediate presentment before a grand jury and indeed, that the Speedy Trial Act mandated that they be brought before a grand jury within 30 days of arrest. [FN1065] Defense counsel Nevin argued that this matter was not dependent upon the statutory provisions and caselaw that held that an indictment extinguished the right to a preliminary hearing but rather was dependent upon the effect to be given Harris' waiver of a right to object to a continuance in return for a promise by the U.S. Attorney that Harris would have a preliminary hearing. [FN1066] Nevin, pointing to the lengthy argument of motions and the lengthy direct examination of Rampton, argued that Howen had no intention of completing the preliminary hearing on September 15, 1992. [FN1067] He maintained that the clear import of what was stated in court on September 11th was that in return for Harris' consent to continuing the preliminary hearing the government agreed to give Harris a full preliminary hearing without interrupting it with the return of an indictment. [FN1068] Thereafter, Nevin moved to quash the indictment. After listening to the arguments of the parties, the court took the matter under advisement and commenced the detention phase of the hearing. [FN1069] Thereafter, the government resumed its direct questioning of Special Agent Rampton after which defense counsel cross examined Rampton. stigators found that Ellsworth had a somewhat confused recollection of the events during this time period. He recalled having concern after the Harris preliminary hearing proceedings concluded on September 15 because it became apparent to him that they would continue beyond the one day he had anticipated. It was at that point that he recalled discussing with either Howen or Lindquist that they might have to continue the preliminary hearing. However, he did not remember that they ever considered not presenting the indictment on September 16. Indeed, it was his recollection that they decided to proceed and to deal with any objections to the indictment that were raised. [FN1070] Howen told investigators that if he had been arguing the motion on September 11, he would not have made the statements that Ellsworth did. He attributed these statements to the fact that Ellsworth was not the attorney responsible for litigating the case and that he was unfamiliar with the issues in the case. Had Howen been in court, he would have explained that, if the court were to conduct the preliminary hearing before the convening of the grand jury -- a schedule that Howen argued was inconsistent with the practice in the district -- he would present an indictment, which, if returned, would extinguish the preliminary hearing. [FN1071] Despite his views about the statements made by Ellsworth, Howen stated that if had been provided a copy of the September 11 transcript before going before the grand jury it would not have changed his decision to present the indictment. [FN1072] Based on his conversations with Ellsworth, Lindquist believed that on September 11 Ellsworth intended to agree that Harris had a right to a preliminary hearing but not to agree that the government could not seek an indictment that would terminate the preliminary hearing. Lindquist thought that Ellsworth intended to guarantee at least a partial preliminary hearing. However, Lindquist admitted that he believed that they "all agreed that what was communicated to [Nevin] was probably ambigious and could easily have been interpreted as I get my preliminary hearing from beginning to end." [FN1073] (3) Weaver Preliminary Hearing On September 16, the preliminary hearing of Weaver resumed. However, before defense counsel began to cross-examine Deputy Marshal Cooper, Lindquist informed the court and defense counsel that a grand jury had been convened and would be handing down an indictment that day. [FN1074] Shortly thereafter, an indictment was served on Weaver and the court heard argument from the parties as to whether the preliminary hearing should be continued. The court then permitted defense counsel to cross- examine Cooper before ruling that the preliminary hearing was being terminated. Judge Williams concluded that the grand jury's finding of probable cause obviated the need for the preliminary hearing and opined that the issue of prosecutorial misconduct could be addressed by motion with the district court judge. [FN1075] Thereafter, the court proceeded to the detention phase of the proceedings. Lindquist rested after introducing a few exhibits; defense counsel called no additional witnesses. The court ordered that Weaver be detained. [FN1076] e. September 17, 1992 On September 17, the court ruled on the Harris motion to quash the indictment. Judge Boyle concluded that although he "truly believe[d]" that Ellsworth had made the request for a continuance in good faith, he interpreted "the stipulation entered into between counsel as contemplating that Mr. Harris would be entitled to a preliminary examination." [FN1077] With regard to what legal effect should be given the breach of the agreement, including whether it warranted quashing the indictment, Judge Boyle thought that the issue was better left to a superseding proceeding or appeal. However, he did not believe that Harris had been prejudiced by how the preliminary and detention hearings were conducted. [FN1078] The court concluded that the return of the indictment extinguished the need for the purpose of the preliminary hearing which was to determine whether probable cause existed that a crime had been committed and that Harris had committed it. As a result, Judge Boyle held that the preliminary hearing would not continue. [FN1079] Thereafter, the court began the detention phase of the hearing and defense counsel proceeded to cross-examine Special Agent Rampton. After Rampton completed his testimony, defense counsel called and questioned Deputy Marshals Dave Hunt, Arthur Roderick, Larry Cooper, Joseph Thomas and Francis Norris. Following argument by counsel, Judge Boyle ordered that Harris be detained. [FN1080] f. Subsequent Defense Challenges On November 16, 1992, Weaver and Harris sought to dismiss the indictments returned against them, arguing, among other grounds that the preliminary hearing had been improperly terminated. They asserted that the Government improperly obtained the indictments only after it realized that probable cause had not been demonstrated at the preliminary hearings because none of the witnesses offered had seen either defendant fire the shot that killed Degan. In addition, they argued that once the Government elected to proceed against the defendant by preliminary hearing it should "be estopped from abandoning that proceeding." [FN1081] To hold otherwise, in their view, would permit the Government to abuse the preliminary hearing, if it appeared that the defense might prevail, in violation of the due process rights of the defendants to introduce evidence. [FN1082] Harris also contended that dismissal was warranted in his case since his consent to a continuance had been secured by a false promise that the hearing would not be superseded by an indictment. [FN1083] The government filed its response to the Weaver and Harris motions to dismiss on November 23, 1992 and argued that there was no legal authority to support the proposition that it was unconstitutional for the prosecution to have the grand jury return an indictment while a preliminary hearing was in progress. [FN1084] Furthermore, the Government noted that Weaver had requested the continuance of the preliminary hearing from September 11, 1992 to September 16, 1992. [FN1085] The Government failed to address directly Harris' argument that the Government had represented that an indictment would not be returned prior to the completion of the preliminary hearing. It did, however, argue that Harris had been afforded a completed preliminary hearing that was completed on September 17, 1992, one day after the indictment had been returned. [FN1086] Magistrate Judge Williams concluded that the U.S. Attorney's Office had acted within the scope of the applicable laws and was not guilty of prosecutorial misconduct. In addition, he concluded that there was no legal barrier to an indictment being returned prior to the completion of the preliminary hearing. Once the indictment was returned, the need for the probable cause determination of the preliminary hearing became unnecessary. [FN1087] Shortly thereafter, Magistrate Judge Boyle ruled on the claims made by Harris in his Motion to Dismiss. [FN1088] In that opinion, Judge Boyle adhered to his earlier ruling on the issue and reiterated his conclusion that there was no legal impediment to a grand jury returning an indictment while a preliminary hearing was in progress. [FN1089] In addition, Judge Boyle found that Harris had failed to demonstrate that he had been deprived of any constitutional or procedural right or that he had suffered prejudice that justified dismissal of the indictment. [FN1090] Nowhere in his opinion did Judge Boyle address the impact of the Ellsworth representations. On January 8, 1993, Weaver and Harris filed a joint motion in which, among other forms of relief, they sought to dismiss the indictment. In this pleading, they repeated their allegation that the U.S. Attorney's Office had subverted the preliminary hearing process by securing a grand jury indictment when it had become apparent that probable cause could not be found at the preliminary hearing. In addition, they argued that this alleged subversion was exacerbated in the case of Harris since the U.S. Attorney had stated to the court that an indictment would not be sought until the completion of the preliminary hearing. [FN1091] District Court Judge Edward Lodge rejected this defense challenge and adopted the recommended report and order of Magistrate Judges Williams and Boyle in orders issued on February 17, 1993. Judge Lodge repeated his rejection of the motion to dismiss in his order addressing the motion to disqualify the U.S. Attorney's Office from prosecuting the case. 3. DISCUSSION We agree with the judicial determinations in the Weaver and Harris prosecutions that the return of an indictment in the midst of a preliminary hearing extinguishes the right to a preliminary hearing. The sole purpose of the preliminary hearing is to determine whether probable cause exists to believe that the defendant has committed the criminal conduct described in the complaint. Once the grand jury has made an independent determination that probable cause exists and returns an indictment, that document becomes the charging document in the prosecution. There is no reason for the preliminary hearing to continue. Nor are we aware of any estoppel principle that would restrict the government from returning an indictment while a preliminary hearing is in progress. Despite this conclusion, we are troubled by the representations that Ellsworth made in court on September 11th, and question whether the members of the U.S. Attorney's Office- - especially Ellsworth -- behaved ethically in light of these representations. Our concern is not that Ellsworth fabricated the need for a continuance since the record is uncontradicted that law enforcement personnel had articulated the security problems created by the trial and the Quayle visit. Rather, our concern is directed at two other areas. First, whether the statements that Ellsworth made constituted a guarantee that Harris would have a "full" or "complete" preliminary hearing in return for agreeing to a continuance and, if such a representation was made, did Ellsworth make it with the intent to promise a complete preliminary hearing. [FN1092] Second, whether Howen or Lindquist understood that Ellsworth had made such a representation before the indictment was presented to the grand jury. Focusing on the first issue, an examination of the September 11 transcript reveals clearly that defense counsel Nevin was concerned that if the preliminary hearing were continued, the prosecution might obtain an indictment and terminate the hearing. Thereafter, there was an exchange among Nevin, Ellsworth and the court in which the agreement of the parties was formed. Ellsworth insisted that he had not ulterior motive for the request and stated that "I am willing to give assurances that we intend to have a preliminary hearing . . . ." [FN1093] Nevin said that he would have no objection to the continuance "if what counsel if saying is that there is going to be a preliminary hearing on Tuesday no matter what. . . ." [FN1094] Ellsworth responded that "[t]he government has no problem with that stipulation." The court then proceeded to ensure that the parties understood the terms of the agreement. Nevin agreed that he was agreeing to continue the preliminary hearing on the representation that Ellsworth was making the motion simply to honor the requests of the chief of police, that Ellsworth was not making the request to permit his office time to present an indictment to the grand jury and that Ellsworth was providing a guarantee that Harris would have a preliminary hearing on September 15. Nevin agreed that the agreement did not include a promise that the USAO would not subsequently impanel a grand jury and return an indictment. In response, Ellsworth told the court that he had "no problem" with the terms of the agreement. [FN1095] Critical to this issue is what did Ellsworth intend or believe he was promising when he entered into this agreement on September 11, 1992. The defense argued that he was promising a "full" preliminary hearing. In contrast, Ellsworth and Howen seem to believe that Ellsworth never promised a "full" preliminary hearing but rather "a" hearing or "some" preliminary hearing would be held on September 15. Ellsworth stated that he believed that the hearing could be completed in one day. Both men did not believe that any guarantees had been given that, if the preliminary hearing took longer than one day, that an indictment would not be returned. If we were to strictly construe the meaning of the words used by the parties, it is true that the word "full" or its functional equivalent was never uttered in court. However, we are uncomfortable with the hypertechnicality of such an approach. We believe that implicit in a request for a promise of "a" preliminary hearing is the idea of a full rather than a partial preliminary hearing. Indeed, when first confronted with the statements that Ellsworth made, Howen stated to the court, "[w]e think, in good faith, the United States Attorney, with the -- with the transcript I have here, did guarantee a preliminary hearing. [FN1096] The remarks of the court echoed this view. [FN1097] In its initial ruling on this issue, the Court concluded that the stipulation "contemplate[ed] that Mr. Harris would be entitled to a preliminary examination." [FN1098] Having concluded that a fair interpretration of the language used by Ellsworth was to promise a complete preliminary hearing we must proceed to our next area of inquiry which is what did Ellsworth intend when he made these representations in court. Ellsworth insisted that it was never his intent to guarantee that Harris would have a complete preliminary hearing but rather only to represent that there would be "a" preliminary hearing on September 15. [FN1099] A careful review of the evidence does not convice us otherwise. Thus, we cannot conclude that Ellsworth intended to guarantee Harris a full preliminary hearing. Despite this conclusion, we are concerned by the actions of Ellsworth. At the outset, we are troubled by the insensitivity or misunderstanding that he demonstrated concerning the impact of his September 11 statements. Ellsworth failed to appreciate the effect given to his words because they were uttered by someone in the position of the U.S. Attorney. We are also concerned about the apparent failure of Ellsworth to carefully and continually evaluate all of the information available to him. The evidence establishes that Ellsworth knew on September 11 that Howen would be seeking an indictment when the grand jury convened on [G.J.]. It also appears that Ellsworth may have participated in discussions concerning the possibility that an indictment could be returned while the preliminary hearing was in progress and that the legal effect of this action would be to extinguish the preliminary hearing. Finally, it seems probable that Ellsworth also was aware that judicial rulings in the Weaver preliminary hearing had permitted the defense board latitude in calling witnesses to testify in the preliminary hearing thereby transforming it from a summary proceeding into a longer hearing and that the potential existed that the Harris hearing might be similarly handled. Although this information was available to Ellsworth, there was no indication that he carefully evaluated it when considering the timing of the Harris indictment. Thus, despite our inability to comfortable conclude that Ellsworth intentionally misrepresented the nature of the government's agreement, we believe that his inattention to the clear import of his words coupled with his failure to monitor the progress of the Harris preliminary hearing and the timing of the presentment of the indictment came precipitously close to unethical conduct. The investigative record failed to develop evidence establishing that Howen or Lindquist understood the scope of what Ellsworth had arguably promised in court on September 11. Based on their remarks to the court and to us, both men, prior to the time when the indictment was returned, appeared to have been under the impression that the main issue discusses in court was whether the security concerns articulated by Ellsworth constituted a fabricated excuse designed to give the government more time in which to secure an indictment. [FN1100] From his remarks to the court on September 15, Lindquist did not seem to see Ellsworth's statements as providing a guarantee that there would be a preliminary hearing but rather only as an indication that they intended to proceed with the preliminary hearing on that date. However, we are concerned about the events after the court session on September 15. Based on a reading of the transcript of the proceeding, we find it difficult to believe that Mr. Lindquist did not realize at the end of that day that a serious issue had developed over the representations that Ellsworth had made four days earlier. Indeed, we believe that Lindquist may have raised his concern to Howen because [G.J.] [FN1101] It appears that neither Howen or Lindquist ever considered or discussed the need to evaluate the impact of the Ellsworth statements before resuming the grand jury proceedings. We think that the potential implications of these statements were apparent and, thus, we would have expected some discussion to have occurred about the impact of indicting Harris while the preliminary hearing was still in progress. As a practical matter we do not believe that Harris was prejudiced by this controversy since he was allowed to question witnesses during the detention phase of the proceeding that he would have probably called to testify at the preliminary hearing if had been allowed to continue. [FN1102] Rather, what concerns us is the appearance of impropriety created when Mr. Ellsworth, as the U.S. Attorney, made statements that reasonable indicated that a promise of a preliminary hearing was being made and then supervised actions that appeared to violate that promise. Moreover, we are also concerned that this situation may have been attributable in part to the failure of Mr. Ellsworth to have thoroughly evaluated and monitored the information available to him before and after his appearance in court on September 11th. 4. CONCLUSION We conclude that a reasonable interpretation of the language that Ellsworth used in court on September 11, 1991 was that Mr. Harris would have a full preliminary hearing. Although the government never promised that an indictment would not be returned it created the impression upon which the defense relied that such a return would not occur until the preliminary hearing had been completed. We do not believe that Mr. Ellsworth intentionally misrepresented the position of the government yet we do conclude that he gave insufficient consideration to the information available to him and to the plain meaning of his statements. Finally, the evidence does not sustain the charge that before the indictment was presented to the grand jury that Howen and Lindquist believed that Ellsworth had guaranteed a complete preliminary hearing to Harris. We find no misconduct by them in this matter. _________________________________________________________________ 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 K) 1016. Howen Interview, Tape 7, at 4. 1017. Howen explained that it was his usual practice to use the case agent as a summary witness as opposed to calling first party witnesses. Id. at 4-5. 1018. Lindquist Interview, Tape 1, at 27. 1019. Howen Interview, Tape 7, at 5. 1020. Id. at 1-3; Lindquist Interview, Tape 1, at 27; Ellsworth Interview, Tape 3, at 26-27. 1021. Letter from Maurice Ellsworth to Eugene Glenn, September 3, 1992. 1022. Howen Interview, Tape 7, at 5-6. 1023. Id. at S. 1024. Id.. 1025. See Transcript of Preliminary Hearing in United States V. Weaver, No. MS-3934, September 10, 1992 (hereinafter cited as "Weaver Preliminary Hearing Transcript"). 1026. Lindquist Interview, Tape 1, at 28. 1027. See Motion to Vacate and Continue Preliminary and Detention Hearings, United States v. Harris, No. MS-3935, filed on September 11, 1992; Affidavit of Maurice O. Ellsworth, United States V. Harris, No. MS-3934, September 10, 1992. See also, Ellsworth Interview, Tape 3, at 29-30. 1028. Ellsworth was arguing the motion because the Assistant U.S. Attorneys assigned to the case were unavailable. Howen Interview, Tape 7, at 11. 1029. See Transcript of Motion Hearing, United State v. Harris, No. MS-3934, September 11, 1992, at 7. 1030. Id. at 5-6. 1031. Id. at 6-7. 1032. Id. at 7-9. 1033. Id. at 10. 1034. Ellsworth Interview, Tape 3, at 27-29, 31. 1035. Id. at 33. 1036. Id. at 31-32. 1037. Id. at 30-31. 1038. Id. at 32, 35. 1039. Howen Interview, Tape 7, at 12-16; Lindquist Interview, Tape 1, at 29-30. 1040. Howen said that if he had been in court that day and defense counsel had refused to consent to the continuance, he would have proceeded to have the preliminary hearing as originally scheduled. Howen Interview, Tape 7, at 21. 1041. Id. at 12-16. Howen thought Ellsworth was also aware that the court agreed to issue defense subpoenas for the five marshals involved in the incident at Ruby Ridge on August 21, 1992. As a result, the government had decided to call Larry Cooper and Arthur Roderick to testify in their part of the preliminary hearing rather than waiting for the defense to call them. Id. 1042. Id. at 15. 1043. [G.J.] 1044. [G.J.] 1045. The judge interrupted Howen early in his argument and stated that, "[W]e had a hearing last Thursday, September 10, where many of the issues you are raising today were argued by very able counsel for the Government." Harris Preliminary Hearing Transcript, September 15, 1992, at 12. Later, after Howen had finished arguing another point, the judge stated, "I believe that is consistent with, Mr. Howen, what I told counsel in our conference this morning. I think that you have just merely restated what I told you my position was." Id. at 38. Notwithstanding these remarks, Judge Boyle later refused to become involved in a debate as to whether the USAO had been attempting to delay the proceedings. Id., September 16, 1992, at 68. 1046. Id., September 15, 1992, at 226. 1047. Id. 1048. Id. at 228-30. 1049. Id. at 230-33. 1050. [G.J.] 1051. [G.J.] 1052. Howen Interview, Tape 7, at 24-26. 1053. Id. at 26-27. 1054. Ellsworth Interview, Tape 3, at 39. 1055. Ellsworth stated, "We were talking about getting an indictment and cutting off the Weaver thing, because the Weaver thing had been continued and was, was going on and ad nauseam, but we didn't anticipate that the, the Harris one would, uh, would likewise." Id. 1056. Howen Interview, Tape 7, at 22-23. 1057. The first indictment charged them with the sinful, malicious and premeditated murder of William Degan in violation of 18 U.S.C. 2, 115, 111 and 1114; the second indictment charged them with forcibly resisting, impeding and assaulting Deputy Marshals Roderick, Cooper and Degan in violation of 18 U.S.C. 2 and 111. 1058. Harris Preliminary Hearing Transcript, September 16, 1992, at 23-25. 1059. Id. at 27-29. 1060. Id. at 33-37. 1061. Id. at 37. 1062. Id. at 35-39. 1063. Id. at 39-40. 1064. Id. at 48-50, 90-91. 1065. Id. at 44-45. 1066. Id. at 53-54. 1067. Id. at 54-55. 1068. Id. at 56. 1069. Id. at 100. 1070. Ellsworth Interview, Tape 3, at 35-36, 39-42. 1071. Howen Interview, Tape 7, at 27-28. 1072. Id. at 34. 1073. Lindquist Interview, Tape 1, at 31-32. 1074. See Affidavit of Charles F. Peterson in Support of Motion to Dismiss Indictment and to Remand for Preliminary Hearing, filed November 16, 1992, at 2. 1075. Weaver Preliminary Hearing Transcript, September 16, 1991, at 157-158. 1076. Id. at 184. 1077. See Harris Preliminary Hearing Transcript, September 17, 1992, at 4. 1078. Howen and Ellsworth opined that by allowing the defense to call the marshals in the detention phase of the preliminary hearing it achieved the same or better result than if the preliminary hearing had been completed. Howen Interview, Tape 7, at 31-32; Ellsworth Interview, Tape 3, at 37-38. 1079. Harris Preliminary Hearing Transcript, September 17, 1992, at 5-9. Magistrate Judge Williams denied a similar motion filed by Weaver. See Order, United States v. Weaver, No. MS- 3934, filed on September 17, 1992. 1080. Harris Preliminary Hearing Transcript, September 17, 1992, at 208-15. 1081. See Memorandum of Points and Authorities in Support of Motion to Dismiss Indictment and to Remand for Preliminary Hearing, United States v. Weaver, filed November 14, 1992, at 4. 1082. Id. at 3-5. 1083. See Affidavit of David Z. Nevin, United States v. Harris, dated September 16, 1992, at 3; Motion to Dismiss, United States v. Harris, filed November 16, 1992, at 1-2. 1084. Government Response to Motion to Dismiss Indictment and to Remand for Preliminary Hearing, United States v. Weaver, filed November 23, 1992, at 1-2. 1085. Id. at 2. The Government also noted that normally the grand jury for the District of Idaho would meed [G.J.] but could not do so in September 1992 because of delay caused by the Labor Day holiday and the need to swear in a new grand jury. If this delay had not occurred, the grand jury would have met on [G.J.] and returned the indictment before the preliminary hearing had begun. It was the Government's contention that the defense had attempted to manipulate the preliminary hearing proceedings so as "to frustrate and prevent the orderly receipt of evidence and testimony by the Grand Jury" and that its request for a remand for further preliminary hearing was no more that a discovery device since they has been unable to satisfy the deposition requirements of Fed. R. Crim P. 15. Id. at 3; Government Response to Motion to Dismiss, United States v. Harris, filed November 23, 1992, at 2. 1086. Government Response to Motion to Dismiss, United States v. Harris, filed November 23, 1992, at 2. 1087. Order, Report and Recommendation, United States v. Weaver, January 6, 1993, at 2-4. 1088. This order superseded a December 23, 1992 order that was withdrawn by the court on January 8, 1992. 1089. Order, Report, and Recommendation, United States v. Harris, January 8, 1993, at 2-3. 1090. Id. at 1-2. 1091. See Motion to Disqualify the United States Attorney's Office, To Dismiss the Indictment, To Strike Prejudicial Allegations, To Order an Evidentiary Hearing and For a Continuance Pending and Investigation by the United States Attorney General and Pending Interlocutory Appeals by the Parties, United States v. Weaver, filed January 8, 1993, at 2-3. In addition, Weaver and Harris filed separate pleadings on January 19, 1993 and January 25, 1993, respectively in which they objected to the report and recommendation filed by Magistrate Judges Boyle and Williams. 1092. Standard 3-2.9(d) of the American Bar Association Standards for Criminal Justice provides that, "[a] prosecutor should not intentionally misrepresent facts or otherwise mislead the court in order to obtain a continuance." Nor should a prosecutor "seek a continuance solely for the purpose mooting the preliminary hearing by securing an indictment." Standard 3.3.10(d), ABA Standards for Criminal Justice (1992). Although the Department of Justice has not adopted the ABA Standards as official policy of the Department, it recommends all U.S. Attorneys to familiarize themselves with the standards since the courts use the standards with addressing matters presented to them. United States Attorney's Manual, 9-2.102. 1093. Transcript of Motion Hearing, United States v. Harris, No. MS-3934, September 11, 1993, at 6-7. 1094. Id. at 7. 1095. Id. at 7-9. 1096. Harris Preliminary Hearing, September 16, 1992, at 38. 1097. For example, at the proceedings on September 15th, after Lindquist informed the court of his scheduling problems, defense counsel Nevin reiterated his concern about the grand jury returning an indictment. When Lindquist asserted that he could not assure Nevin that Harris would have a complete preliminary hearing uninterrupted by an indictment, the court inquired whether Lindquist had "visited with Mr. Ellsworth about the nature of the hearing held last week on this very question." Later the court stated that it was going to review that tape of the hearing that evening because he thought that "there was some representation that there would be a complete preliminary hearing held in this matter." Id. 228-233. 1098. Id., September 17, 1992, at 4. During their discussions with investigators, Lindquist agreed that the words uttered by Ellsworth were ambiguous while Ellsworth conceded that one could have concluded from his words that he was guaranteeing a full preliminary hearing. Ellsworth Interview, Tape 3, at 43. Lindquist Interview, Tape 1, at 31-32. 1099. Ellsworth Interview, Tape 3, at 43. 1100. Later, when asked to interpret the September 11 statements that Ellsworth made, both Howen and Lindquist interpreted them as promising "some" preliminary hearing but not a "full" preliminary hearing. For the reasons already discussed we do not agree with this interpretation of the record. Although we find these interpretations of the Ellsworth statements by Howen and Lindquist to be somewhat disingenuous we do not attribute these explanations to any bad motive on their parts but rather on an understandable desire to defend a colleague who they believe made ambiguous statements buy did not do so in bad faith. 1101. [G.J.] 1102. Members of the U.S. Attorneys Office reject Harris' argument that he relinquished a valuable right by consenting to the continuance since, if Harris had withheld his consent, they would have simply proceeded with preliminary hearing as scheduled. See, e.g., Lindquist Interview, Tape 1, at 30. This argument, in our view, misses the mark and overlooks the negative impact created by the U.S. Attorney making representatives and then failing to honor them. _________________________________________________________________ IV. SPECIFIC ISSUES INVESTIGATED L. SCOPE OF THE INDICTMENT AND ALLEGED PROSECUTORIAL MISCONDUCT BEFORE THE GRAND JURY 1. INTRODUCTION Following Weaver's surrender, the prosecution presented a series of charges against him and Harris to a grand jury on [G.J.]. An indictment was returned on September 16, charging the defendants with the murder of Deputy Marshal Degan and with an assault on Degan and Deputy Marshals Roderick and Cooper. [FN1103] [G.J.], which returned a superseding indictment on October 1 that included a broad charge of conspiracy by Weaver and Harris. [FN1104] [G.J.], which returned a second superseding indictment on November 19, setting forth essentially the same charge contained in the October 1 indictment. [FN1105] On January 8, 1993, counsel for Weaver and Harris filed pretrial motions to dismiss the superseding indictment, in part, because of alleged prosecutorial misconduct that occurred during the grand jury proceedings between September 16 and October 1. The defense claimed that Assistant U.S. Attorney Ronald Howen made improper statements to the grand jury, which were the equivalent of unsworn testimony, and that Howen had elicited irrelevant and protracted testimony regarding the violent criminal activities of white supremacist groups known as the Aryan Nations, Order 1 and Order 2. Defense counsel asserted that this evidence was introduced to inflame the grand jury and prejudice it against Weaver and Harris. [FN1106] Weaver's counsel also alleged at trial and to this investigation that the conspiracy charged in Count 1 of both superseding indictments was overly broad in that it covered a period beginning in January 1983 and continuing through August 31, 1992. During this investigation, members of the FBI also argued that the scope of the indictment was too broad and should not have included the conspiracy count. Furthermore, defense counsel claimed that the government brought certain charges in the superseding indictments, for which there was no factual basis. In addition to these allegations, we have also considered whether the prosecution improperly limited the scope of the grand jury's investigation to crimes committed by Weaver and Harris and precluded a broader inquiry into possible crimes committed by law enforcement officers in the shooting of Vicki Weaver. [FN1107] Finally we have examined the propriety of the decision of the government to seek the death penalty in the Weaver case. 2. STATEMENT OF FACTS a. Scope of the Indictment: The Conspiracy Count Count 1 of both superseding indictments alleged the existence of a wide-ranging conspiracy among "Randall C. Weaver, Vicki Weaver, Kevin L. Harris and others known and unknown to the Grand Jury, including some other members of the Weaver family," beginning from the time Weaver moved his family from Iowa to Idaho in 1983 and continuing through Weaver's surrender to authorities on August 31, 1992. The prosecution's theory was that the Weavers and Harris had long planned a violent confrontation with law enforcement, a plan that came to fruition on August 21, 1992, when Harris killed Deputy Marshal Degan. [FN1108] Weaver's counsel accused the prosecution of "engaging in the 'demonizaiton'" of Randy Weaver by adding the conspiracy count to the original indictment. Defense counsel alleged that the conspiracy count was used to justify the introduction of inflammatory and prejudicial evidence at trial. [FN1109] Assistant U.S. Attorney Howen had prosecuted a number of Aryan Nations and related cases and was well acquainted with the racist beliefs, violent philosophy, and anti-government sentiments held by those associated with such groups. [FN1110] Among these groups were the Order 1 and the Order 2, which had carried out a series of robberies and bombings in the Northwest in the mid-1980s. [FN1111] Early in the Weaver investigation, Howen noticed similarities between the views expressed by the Weavers and those espoused by members of the Aryan Nations and the Orders. [FN1112] Howen learned that, in a 1983 newspaper interview, Weaver had discussed plans to move from Iowa to Northern Idaho to live in an isolated hideaway and "survive the coming 'great tribulation.'" The article stated that Weaver was "developing defense plans that include[d] a 300 yard 'kill zone' encircling [his] compound." [FN1113] Howen decided to pattern the charges against Weaver and Harris after indictments he had used in Aryan Nations cases. [G.J.] [FN1114] [G.J.] [FN1115] Assistant U.S. Attorney Lindquist, who helped Howen draft the indictment, told this investigation that he and Howen knew that they would have to address the death of Vicki Weaver in the government's case. He reasoned that it would be strategically wiser to acknowledge the events of August 22 forthrightly at trial than to permit the defense to use the government's failure to mention these events to their advantage with the jury. [FN1116] Howen and Lindquist also feared that the trial court would not allow the prosecution to introduce evidence of the Weavers' past conduct to prove their intent to provoke a violent confrontation with law enforcement officials, unless that conduct was included in the indictment. [FN1117] They, therefore, sought to establish that Randy Weaver, his family, and Kevin Harris had formed a conspiracy to resist the U.S. Government and to assault government and to assault government agents and that the conspiracy began to take shape in Iowa as far back as 1983. [FN1118] The objects of the conspiracy were set forth in the indictment: 1. To forcibly resist, oppose, impede, interfere with, intimidate, assault and/or otherwise cause a violent confrontation with law enforcement authorities in the engagement in or on account of the performance of their official duties of enforcing the laws of the United States. . . as to said Randall C. Weaver, Vicki Weaver, Kevin L. Harris and others; 2. To purchase, develop and maintain a remote mountain residence/stronghold; 3. To illegally and otherwise make, possess, sell and/or conceal firearms and ammunition; 4. To fail to appear for trial on pending federal criminal charges after orally and in writing agreeing to appear for trial before a federal judge; 5. To hinder or prevent the discovery, apprehension, arrest and trial of federal fugitives from justice; 6. To steal, conceal, retain and/or convert the personal property of others to their own use; 7. To intimidate neighbors, as well as law enforcement officers and agents, by the use, display, threat to use and/or discharge of firearms; 8. To use, display, threaten to use, fire and/or discharge firearms at or near human beings, vehicles and/or aircraft; and 9. To assault, shoot, wound, kill and/or murder, or threaten to cause such to occur. . . by means of the use of deadly weapons. . . . [FN1119] The proposed conspiracy count initially listed 28 overt acts, including the 1983 newspaper interview, the Weavers' move to Idaho in 1983, the shooting death of Deputy Marshal Degan, and an attempt to take offensive action against a helicopter, which resulted in the death of Vicki Weaver. An additional 14 overt acts were added to the second superseding indictment. The U.S. Attorney's Office in Idaho did not have a formal review process for indictments. [FN1120] That office also did not require a prosecution memorandum for evaluating proposed indictments. However, Howen did discuss the superseding indictment with Ellsworth, who approved the conspiracy count. Howen and Lindquist also discussed the proposed conspiracy count with representatives of the Marshals Service, BATF, the FBI, and the Department of Justice. They received conflicting opinions as to the wisdom of including such a count. Henry Hudson, Director of the U.S. Marshals Service during the Weaver/Harris prosecution, spent several hours reviewing the indictment and believed that the conspiracy count detracted from the most significant charge which was the murder of Deputy Marshal Degan. [FN1121] [GARRITY] [FN1122] FBI case agents Venkus and Rampton also disagreed with the conspiracy theory. [FN1123] [GARRITY] [FN1124] None of the counts charged in the indictment required review or approval by the Department of Justice. Nonetheless, Howen sought input from the Department. James Reynolds, Chief of the Criminal Division's Terrorism and Violent Crimes Section, and Deputy Section Chief Dana Biehl had reservations about the manner in which the indictment had been drawn. However, since DOJ had no supervisory control over the case, they did not seek to impose their views on the prosecution. [FN1125] b. Evidential Support for Certain Overt Acts and Substantive Offenses Defense counsel, both in pretrial motions and in an interview with this inquiry, claimed that "a great majority" of the overt acts alleged in the indictment as part of the conspiracy count were without evidentiary support and should not have been charged. [FN1126] The defense also complained that many of the overt acts were not, in themselves, criminal or had no relation to the object of the conspiracy. The defense asserted in pretrial motions that Count 1 of the indictment, which charged a wide ranging conspiracy, forced them to defend against "alleged crimes that are irrelevant to the case." [FN1127] The overt acts challenged included those set forth in the following paragraphs of the second indictment: 7. On or about May 6, 1985, Randall C. Weaver and Vicki Weaver mailed a letter addressed to the President of the United States and the . . . United States Secret Service; . . . . 32. On or about April 18, 1992, Randall C. Weaver, Vicki Weaver, or Kevin L. Harris shot at or near a helicopter and its occupants; . . . . 36. On or about May 2, 1992, Randall C. Weaver and Kevin L. Harris stole a video camera and other equipment, later destroying it or converting it to their own use; . . . . 38. On or about August 3, 1992, Randall C. Weaver, Vicki Weaver, Kevin L. Harris and/or some other members of the Weaver family stole a water tank and pipe belonging to another; 39. On or about August 17, 1992, Kevin L. Harris and/or some other members of the Weaver family attempted to enter a residence occupied by another and took or attempted to take the personal property of others; . . . . 41. On or about August 22, 1992, Randall C. Weaver or Kevin L. Harris and an unidentified female, probably Vicki or Sara Weaver, took offensive action against a helicopter and its occupants, including attempting to shoot at the helicopter, resulting in the death of Vicki Weaver and the wounding of Kevin L. Harris and Randall C. Weaver. . . . [FN1128] The defense also claimed that there was no evidence to support the allegation that Randy Weaver shot Deputy Marshall Degan on August 21, 1992 and fired at the other marshals. The trial court adopted the finding of Magistrate Judge Boyle, who ruled that the overt acts complained of were relevant to the defendants' role in the conspiracy and that statements, acts, and threats of violence against other bore upon issues such as premeditation and malice. [FN1130] The court dismissed Counts 6 and 8 on the defendants' motion at the conclusion of the prosecution's case-in-chief. Count 6, which charged Weaver and Harris with assaulting federal officers in a helicopter on August 22, 1992, was dismissed because the court found no evidence that the officers knew of the assault. The court considered this knowledge to be an element of the offense. Count 8, which charged the receipt and possession of firearms by a fugitive, was dismissed because the court found no proof that Randy Weaver had travelled across state lines, as is required by the statute under which the crime had been charged. c. [G.J.] [Editor's Note: Pages 334-355 were omitted, which included footnotes 1131 to 1174.] f. Decision to Seek the Death Penalty Count 5 of the second superseding indictment charged Randy Weaver and Kevin Harris with the murder of Deputy U.S. Marshal William Degan while he was "engaged in or on account of the performance of his official duties." [FN1176] Section 1111 of Title 18, provides for a sentence of death or life imprisonment upon conviction for the murder of a federal officer. Department of Justice policy requires the approval of the Department's Criminal Division before a U.S. Attorney may recommend application of the death penalty. [FN1177] Although the prosecution did not request permission to try the Weaver matter as a capital case for several months, the trial court considered it a potential death-penalty case from the time the first indictment was returned charging Weaver and Harris with Degan's murder. The Court advised both defendants at their arraignments that the maximum penalty for conviction on that count was death and, as a consequence, gave them additional appointed counsel, increased the compensation given to counsel, and provided for additional investigative expenses. [FN1178] On January 8, 1993, the defense filed a motion claiming that the possible penalties for Count 5 could not, under the Constitution, include the death penalty. The defense argued that the capital punishment provision of 18 U.S.C. 1111 had been invalidated by virtue of the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972) and subsequent rulings by the Ninth Circuit. [FN1179] The prosecution responded that the capital provision of section 1111 was still viable and that the Court could fashion standards for its application that met the requirements of Furman. [FN1180] The prosecution's response recognized that this position had been rejected by the Fifth Circuit and by the District of Alaska. [FN1181] While the decision on the defense motion was pending, U.S. Attorney Ellsworth applied to the Terrorism and Violent Crime Section of the Criminal Division of the Department of Justice for authorization to seek the death penalty. As justification for the request, Ellsworth wrote: [T]he mutual premeditation [of Weaver and Harris], founded in racial bigotry and baseless hatred for authority, is cold and heinous in its direction at law enforcement. . . . The death of [Deputy Marshal] Degan was the direct and planned result of Weaver's selfish and monstrous proclamation that "[t]he tyrant's blood will flow." His legal and moral accountability fully supports imposition of the death penalty. [FN1182] The Terrorism and Violent Crimes Section recommended against Ellsworth's request because it did not think that the death penalty would survive a constitutional challenge under the statute. James Reynolds, Chief of the Terrorism and Violent Crimes Section, also had doubts about the seriousness of the U.S. Attorney's request. [FN1183] The application was transmitted to Associate Deputy Attorney General David Margolis, who believed that the killing of a federal law enforcement officer warranted the death penalty and that the penalty was constitutional as applied under the statute. However, he also shared Reynolds' reservations about the seriousness of the U.S. Attorney's intentions and thought it was possible the U.S. Attorney was "going through the motions." [FN1184] Margolis then telephoned Ellsworth and spoke with him and Assistant U.S. Attorney Howen. They assured Margolis that the case was sound and that they were seriously pursuing the death penalty in this matter. [FN1185] Thereafter, Margolis discussed the matter with Deputy Assistant Attorney General John C. Keeney. Both men were swayed by the serious nature of the charge, and they decided to approve the request to seek the death penalty. [FN1186] In making the decision, Margolis recognized that guilt would have to be proven beyond a reasonable doubt before the death penalty could be invoked. [FN1187] Ellsworth was given formal permission to seek the death penalty through a letter from the Acting Attorney General. [FN1188] Shortly thereafter, on February 26, 1993, the trial court issued an order adopting the defense's position that the death penalty provision of 18 U.S.C. 1111 was void under Furman and Ninth Circuit precedent. [FN1189] 3. DISCUSSION a. Scope of the Indictment: The Conspiracy Count It would be illogical and unfair to infer from the trial jury's verdict of acquittal on the conspiracy count that the prosecution's theory was wholly unfounded or wrongfully contrived. We have found no evidence that the prosecution acted without a good faith belief that sufficient proof existed to support the conspiracy charge, notwithstanding the often harsh accusations made by the defense before and during trial. That does not mean, however, that it was prudent to extend the scope of the conspiracy to 1983. Howen and Lindquist were concerned that, without a conspiracy charge, they would not be permitted to introduce evidence of the Weavers' past statements and conduct to explain the events leading up to the shooting on August 21, 1992. Count 2 of the indictment charged that the earliest substantive offense committed by Weaver, the sale of two sawed-off shotguns, occurred in October 1989. The BATF informant involved in that transaction first met Weaver at the World Aryan Congress in 1986, and there were tape recordings of conversations involving Weaver and the informant beginning in January 1987. Evidence of the circumstances under which the informant met Weaver would almost certainly be admitted, even without a conspiracy charge, especially since the defense claimed that Weaver had been entrapped into making the sales. Likewise, letters and statements following Weaver's arrest on the weapons charge in January 1991 showing that Weaver would not submit to authorities would have been admissible with regard to Count 3, which charged Weaver with failure to appear for trial. On the other hand, by describing the conspiracy as beginning in 1983, the prosecution was able to introduce evidence of the interview, in which Weaver discussed plans to move from Iowa to Northern Idaho and develop a "300 yard 'kill zone'" around his house. This was a key element of the conspiracy theory. Many of the criticisms of the conspiracy theory are legitimate. For instance, [G.J.] [FN1190] [G.J.] However, at trial, the defense effectively attacked the theory, claiming that the Government was trying to "demonize" Weaver by charging that everything he did proved that he hated the Government. [FN1191] Allegations that acts such as moving to Idaho and building a cabin were proof of a conspiracy clearly had the capacity to distract the trial jury from the killing of Deputy Marshal Degan. As for the defense claim that many of the overt acts charged in the conspiracy count were without evidential support, the magistrate denied the defense motion to dismiss the indictment after considering whether the allegations about which the defense had complained were "relevant to the charge contained in the indictment and [were] inflammatory and prejudicial." [FN1192] We have made the same inquiry. Overt Act 7 refers to two letters written by Randy and Vicki Weaver on May 6, 1985, [FN1193] which allegedly contain threats made by Randy Weaver against former President Reagan. Deputy Boundary County Sheriff Ekstrom testified that the U.S. Secret Service had investigated Randy Weaver in February 1985. Shortly thereafter, on February 28, 1985, the Weavers filed a handwritten affidavit with the Boundary County Clerk, claiming that certain persons were conspiring to place Weaver and his family in danger and to precipitate an attack on his life. The affidavit alleged that his "accusers" made false statements about his connections with the Aryan Nations, his ownership of illegal weapons, and threats he allegedly made against the President and the Pope. Weaver wrote that the plot was designed to provoke the FBI into storming his home. He also expressed the fear that he would be killed or arrested for assaulting a federal officer, if he tried to defend himself. The affidavit stated: "I make legal and official notice that I believe I may have to defend myself and my family from physical attack on my life." [FN1194] We agree that the Secret Service investigation and the February 1985 affidavit were relevant to whether Weaver planned a violent confrontation with law enforcement. However, we do not believe that the letters written in May 1985 were relevant to the issue. One letter was an apology to President Reagan, in which Weaver claimed that his neighbors had sent the President a threatening letter under his name. The other letter demanded a written apology from the Secret Service for falsely accusing him of making the threats. [FN1195] Neither letter appears to have furthered the overall conspiracy. Overt Act 32 alleged that a helicopter with a television crew had been shot at as it flew near the Weaver residence. When the first superseding indictment was presented to the grand jury, the prosecution had evidence that no shots had been fired at the helicopter. [FN1196] [G.J.] [FN1197] The failure of the prosecution to do either is significant. The justification given by the FBI sniper for shooting at Randy Weaver on August 22, 1992 was that he believed that Weaver and Harris were preparing to shoot at an FBI helicopter flying nearby. [FN1198] Evidence that Weaver and Harris had fired at a helicopter earlier would certainly have tended to bolster the sniper's testimony. The grand jury was entitled to a balanced view of the alleged incident. [G.J.] [FN1199] [G.J.] [FN1200] We find that this evidence was pertinent to at least one of the objectives of the unlawful agreement alleged in the conspiracy count: "hinder[ing] or prevent[ing] the discovery, apprehension, arrest and trial of federal fugitives from justice." Overt Act 36 was thus properly included in the indictment. We also conclude there was adequate evidence to support the inclusion of Overt Acts 38 and 39, which alleged the theft of property belonging to the Rau family. [FN1201] [G.J.] [FN1202] [FN1203] As noted above, one of the objectives of the unlawful agreement alleged in the conspiracy count was "[t]o steal, conceal, retain and/or convert the personal property of others." Evidence regarding the theft of the Raus' property bore on that allegation. [FN1204] Moreover, the Weavers' harassment of the Raus was a factor in the marshals' decision to resume surveillance of the Weaver property in August 1992. It was not improper to include these allegations in the indictment. In regard to the charge in Overt Act 41 that Randy Weaver, Kevin Harris, "and an unidentified female, probably Vicki or Sara Weaver" attempted to shoot at an FBI helicopter, Special Agent Hoiruchi testified that he saw three persons run out of the Weaver cabin upon hearing the helicopter, one of whom he identified as Kevin Harris. [G.J.] The prosecution knew full well when Overt Act 41 was drafted that Vicki Weaver had been killed while holding open the door of the cabin for the three persons who had responded to the helicopter, one of whom was a female. Even though Horiuchi could not identify the female, the prosecution had abundant evidence that Vicki Weaver had not run outside. Naming Vicki Weaver as one of the people who might have responded to the helicopter could readily be interpreted as an attempt to assert that Horiuchi was justified in shooting her. It was careless and wrong for the indictment to charge than "an unidentified female, probably Vicki or Sara Weaver" took offensive action against the helicopter. [FN1205] The prosecution never contended that Randy Weaver shot Degan, but it did assert that Weaver, Harris, and the other family members engaged in joint criminal activity that included murder, conspiracy, and assault on the marshals. [FN1206] [G.J.] [FN1207] Although Overt Act 40 does not specifically state that Weaver was being charged as an aider and abetter, the section of the conspiracy count defining the roles of the participants states that Weaver "committed the crimes of aiding and abetting murder and attempted murder." [FN1208] Count 5, which corresponds with Overt Act 40, also alleges that "Kevin L. Harris, as aided, counseled, induced or procured by Randall C. Weaver . . . did . . . shoot, kill and murder one William F. Degan. . . ." It is also evident that Weaver was charged as an aider and abetter in Count 5 with respect to shots fired at the other marshals during the confrontation at the Y. [G.J.] [FN1209] We believe that several of the overt acts discussed above should not have been included in the indictment. This appears to have been the result of overzealousness, or perhaps poor judgment, but not malice, on the part of the prosecution. However, the allegation that Randy Weaver was the moving force behind the violent confrontation that caused Kevin Harris to shoot at the four marshals, killing William Degan, was amply supported by evidence presented to the grand jury. We have found no intent of behalf of the prosecution to charge Counts 6 and 8 knowing there was insufficient proof of the elements of those offenses. Howen acknowledged to this inquiry that a more thorough researching of these statutes would have spared the government judicial dismissal of the counts. [FN1210] However, we find no impropriety in the charging of these counts. [FN1211] The conspiracy theory presented by the prosecution undoubtedly had the capacity to distract the trial jury from the killing of Deputy Marshal Degan. That is not to say that the prosecutors would have avoided acquittals by charging the case differently. The defense focused heavily on the arguments that Randy Weaver had been entrapped into making the weapons sale to the BATF informant, that firing at the marshals was an act of self defense, and that there was no justification for the shooting of Sammy and Vicki Weaver. We cannot assume that this approach would have failed, had the case been prosecuted solely on the murder charge and a few other substantive offenses. The case would be difficult, no matter how it was charged. We believe that some of the prosecution's difficulties could have been avoided by a more formal review of the indictment within the U.S. Attorney's office. The conspiracy theory was not seriously tested until after the indictment had been returned. In a case of this complexity, it would have been advisable for the office to have a written prosecution memorandum for discussion before seeking an indictment. b. [G.J.] [Editor's Note: Footnotes 1212 to 1217 were omitted here as were pages 366 to 367.] It is not improper for a prosecutor to express an opinion as to the merits of the case "as long as it is clear to the jury that the opinion is based only on the evidence that is before the jury and the jury itself can evaluate." [FN1219] We have found certain instances when Howen's comments went beyond explanation or summaries of the evidence and bordered on statements of personal knowledge. Howen's questioning of [G.J.] [G.J.] [FN1220] [FN1221] [G.J.] [FN1222] [FN1223] [G.J.] [FN1224] [FN1225] Prosecutors are accorded wide latitude in presenting their cases to the grand jury. [FN1226] However, although the prosecutor "properly has wide discretion in grand jury proceedings . . .this discretion is not boundless." [FN1227] The Department of Justice has set forth general standards of conduct for prosecutors before the grand jury: In his/her dealings with the grand jury, the prosecutor must always conduct himself/herself as an officer of the court whose function is to insure that justice is done and that guilt shall not escape nor innocence suffer. He/she must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges. The prosecutor's responsibility is to advise the grand jury on the law and to present evidence for its consideration. In discharging these responsibilities, he/she must be scrupulously fair to all witnesses and must do nothing to inflame or otherwise improperly influence the grand jurors. [FN1228] The court's pretrial ruling that there was no misconduct regarding the presentation of evidence concerning the Aryan Nations and the Order is not conclusive for purposes of this inquiry. We agree, [G.J.] that some background on [G.J.] was important to put in context the tape recordings of Weaver and the BATF informant and to define words and phrases used in those conversations. [FN1229] Howen had been permitted to introduce similar evidence in past Aryan Nations prosecutions, and those convictions had been affirmed on appeal. [FN1230] We also recognize the need to clarify Vicki Weaver's citation to "Mathews" in a letter to the U.S. Attorney. However, we believe that the volume of evidence presented [G.J.] went beyond that which was necessary to accomplish those goals. [FN1231] For instance, [G.J.] Other examples of problematic testimony abound. [G.J.] [FN1232] Unless it is relevant to the offenses under the investigation, comments linking the accused to a criminal class are also inappropriate. [FN1234] It is generally improper to elicit testimony deliberately on irrelevant and prejudicial matters. [FN1234] [G.J.] Such expressions serve no legitimate purpose, other than to suggest to the grand jurors that the prosecutor, as an expert in cases like the one before them, should be accorded particular credibility. That is not a fitting posture for a prosecutor to assume. [G.J.] [FN1235] [FN1236] [FN1237] c. [G.J.] The United States Attorneys' Manual provides that the prosecutor is "to advise the grand jury on the law and to present evidence for its consideration." [FN1238] Instructions on the law must be accurate and not deliberately misleading. [FN1239] Although an indictment returned "by a legally constituted and unbiased grand jury" is presumed valid, [FN1240] an indictment may be subject to challenge, if the prosecutor's instructions are so flagrantly erroneous that the grand jury is deceived in some significant way. [FN1241] [G.J.] [FN1242] [G.J.] [FN1243] [G.J.] [FN1244] [FN1245] Rather, we attribute this failure in part to an institutional weakness existing between the USAO and the FBI. The prosecutors knew that the FBI had conducted an internal inquiry into the shooting and that the FBI had concluded that the shooting was within established rules and regulations. Such findings are not, as a routine matter, subject to examination by prosecutors or persons outside the FBI. Thus, the FBI considered the issue closed and resisted any act or inquiry which could be interpreted as challenging the actions of the HRT. Indeed, we have found that the FBI frustrated the prosecutors' efforts to interview FBI headquarters witnesses, [G.J.], and withheld documents relating to the shootings, including the shooting incident report. This created an environment in which the USAO was unlikely to even contemplate the HRT members being subjects of a criminal investigation especially since the USAO believed that the shooting incident had already been examined in an administrative review of the incident. d. Decision to Seek the Death Penalty Finally, regarding the decision to seek the death penalty, Ellsworth and Howen were aware that case law in the Ninth Circuit did not support the application of the death penalty in circumstances such as those presented by the Weaver/Harris case. [FN1246] The prosecution chose to proceed based on arguments raised by the Department of Justice in an appeal then pending before the Ninth Circuit. [FN1247] We do not fault the prosecution for adopting the Department's legal theory and seeking a ruling from the trial court based on that theory. We do, however, share the misgivings expressed by some members of the Department of Justice as to whether this was factually an appropriate case for imposition of the death penalty. [FN1248] Keeney and Margolis appear to have deferred to the Ellsworth and Howen's representations about the strength of the proof in the case. [FN1249] Ellsworth and Howen assured them and this investigation that they were serious and wanted to proceed with the request. [FN1250] There is no evidence to dispute the good faith of the prosecution in making the application to seek the death penalty. [FN1251] We are not convinced, though, that the confidence expressed by the U.S. Attorney's Office that this case presented a good set of facts to test the viability of the death penalty in Idaho was justified. 4. CONCLUSION We share many of the reservations about the scope of the conspiracy count expressed by members of the Marshals Service and the FBI. Although we did not find that the prosecutors charged Weaver and Harris in bad faith, we believe that their judgments were not always as thoughtful and well reasoned as they should have been. [G.J.] [FN1252] Finally, the decision to seek the death penalty may be viewed as overarching by the prosecution. _________________________________________________________________ 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 L) 1103. See 18 U.S.C. 2, 111, 115, 1111, and 1114. 1104. [G.J.] 1105. See Indictments in United States V. Randall C. Weaver and Kevin L. Harris, dated September 16, October 1, and November 19, 1992. 1106. See [SEALED BY COURT] 1107. Defense counsel also charged that the prosecution withheld exculpatory information from the grand jury by failing to disclose a letter the Probation Office sent to Weaver, which referenced an incorrect date for his trial. See Memorandum from AIIP Daniel J. Wehr to Inspectors Roger Nisley and Paul Mallett, September 1, 1993, at 4. This issue is discussed in Section IV(B), supra. 1108. See [SEALED BY COURT] 1109. See Memo from AIIP Daniel J. Wehr to Inspectors Roger A. Nisley and Paul E. Mallett, September 9, 1993, at 11-12. At trial, Weaver and Harris were acquitted of the conspiracy count. Harris was acquitted on all the other counts that went to the jury. Weaver was convicted only on Count 3, failure to appear for trial on the original firearms violation, and Count 9, committing an offense while on pretrial release. 1110. Howen Interview, Tape 1, at 8-13. See, e.c., United States V. Winslow, 962 F.2d 845, 847 (9th Cir. 1992); United States v. Cutler, 806 F.2d 933, 934 (9th Cir. 1986). 1111. See Section IV(A), supra. 1112. In February 1991, U.S. Attorney Ellsworth showed Howen a letter he had received from Vicki Weaver addressed to the "Queen of Babylon." Howen identified a quotation Vicki Weaver used as a passage from the "Declaration of War" by Robert Mathews, the founder of a white supremacist group called "The Order." See "Declaration of War" by Robert Mathews, et al., November 25, 1984; Howen Interview, Tape 3, at 19-22. 1113. "Survivalist Makes Plans for Time of 'Great Tribulation,'" Waterloo Courier, January 9, 1983, at Bl; Objection to Report and Recommendation and/or Motion for Reconsideration, January 8, 1993, at 2-3. 1114. The initial indictment only charged Harris and Weaver with the murder of Deputy Marshal Degan and with the assault on Degan and two other deputy marshals. Howen began presenting evidence of the conspiracy immediately after that indictment had been returned. 1115. [G.J.] 1116. Lindquist Interview, Tape 1, at 40. 1117. Howen and Lindquist thought that the court might exclude evidence of past conduct under Rule 404(b) of the FederaL Rules of Evidence, which provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . . 1118. See Howen Interview, Tape 11, at 31. 1119. See Second Superseding Indictment, United States v. Randall C. Weaver and Kevin L. Harris, CR92-080-N-EJL, dated November 19, 1992. 1120. Ellsworth Interview, Tape 6, at 10; Howen Interview, Tape 11, at 42. 1121. FD-302 Interview of Henry Hudson, November 15, 1993, at Director Hudson, a former U.S. Attorney for the Eastern District of Virginia, believed that the case should have been kept as simple as possible because a more narrow indictment would prohibit the defendants from bringing in extraneous information. He said that, if he has been the U.S. Attorney, he would not have authorized such a broadly drawn indictment. The marshals assigned as case agents for the prosecution, however, were more supportive of the conspiracy charge. Sworn Statement of John Stafford, October 20, 1993, at 8-9; Sworn Statement of Robert Masaitis, October 20, 1993, at 17. Special Agent Herb Byerly, the BATF case agent for the prosecution, also concurred with the conspiracy theory. Sworn Statement of Herbert Byerly, October 22, 1993, at 24. 1122. [GARRITY] 1123. See Byerly Sworn Statement, October 22, 1993, at 24. 1124. [GARRITY] The report was later the subject of a protracted argument between the Idaho U.S. Attorney's Office and FBI Headquarters, which was withholding the report. See Section IV(M), supra. 1125. FD-302 Interview of James Reynolds, October 8, 1993, at 6-7; FD-302 Interview of Dana Biehl, August 9, 1993, at 2. 1126. Memo from AIIP Daniel F. Wehr to Inspectors Roger A. Misley and Paul E. Mallett, September 9, 1993, at 12. That much may be inferred from the fact that Weaver and Harris were acquitted on the conspiracy count. However, we do not find this verdict, which could have been based on various factors, conclusive of our inquiry. 1127. Weaver's counsel initially raised this issue in a Motion to Strike Surplusage contained in the Superseding Indictment and argued that certain overt acts did not allege federal offenses and should be stricken. Memorandum in Support of Motion to Strike Surplusage November 13, 1992, at 8-9. That motion was referred to U.S. Magistrate Judge Larry M. Boyle, who agreed that certain language should be stricken from the indictment as surplusage but denied the request that overt acts, which constituted nonfederal crimes, be stricken. Order, Report and Recommendation, January 8, 1993, at 9 (hereinafter cited as "Boyle Order"). [SEALED BY COURT] Judge Lodge found Judge Boyle's ruling on the issue dispositive and denied the motion. Order, February 26, 1993, at 16 (hereinafter cited as "Lodge Order"). 1128. Second Superseding Indictment, United States v. Randall C. Weaver and Kevin L. Harris, returned November 19, 1992. 1129. See [SEALED BY COURT] 1130. See [SEALED BY COURT] 1131. [G.J.] 1132. [G.J.] 1133. [G.J.] 1134. [G.J.] 1135. [G.J.] 1136. [G.J.] 1137. [G.J.] 1138. [G.J.] 1139. See [G.J.] 1140. [G.J.] 1141. [G.J.] 1142. See [G.J.] 1143. [G.J.] 1144. [G.J.] 1145. [G.J.] 1146. [G.J.] 1147. [G.J.] 1148. [G.J.] 1149. [G.J.] 1150. [G.J.] 1151. [G.J.] 1152. [G.J.] 1153. [G.J.] 1154. [G.J.] 1155. [G.J.] 1156. [G.J.] 1157. [G.J.] 1158. [G.J.] 1159. [G.J.] 1160. [G.J.] 1161. [G.J.] 1162. See [G.J.] 1163. See [G.J.] [G.J.] 1164. [G.J.] 1165. [G.J.] 1166. [G.J.] 1167. [G.J.] 1168. [G.J.] 1169. [G.J.] 1170. [G.J.] 1171. [G.J.] 1172. [G.J.] 1173. [G.J.] 1174. [G.J.] 1175. Howen Interview, Tape 8, at 18. [G.J.] 1176. See 18 U.S.C. 2, 115, 1111 and 1114. 1177. U.S. Attorney's Manual 9-2.148 (1992). 1178. See Order Respecting Potential Penalty, February 26, 1993, at 1; Memorandum [on behalf of Harris] in Support of Motion for Order Respecting Potential Sentence, January 8, 1993, at 3-4 (hereinafter cited as "harris Death Penalty Memo"); Memorandum [on behalf of Weaver] in Support of Motion for Order Respecting Potential Sentence, January 14, 1993, at 3-4 (hereinafter cited as "Weaver Death Penalty Memo"). 1179. Harris Death Penalty Memo, at 3-4, 6. See United States v. Harper, 729 F.2d 1216, 1225 (9th Cir. 1984). Counsel for Weaver subsequently joined in the motion. Weaver Death Penalty Memo, at 3-4. 1180. Furman requires that 1) the sanction of death be proportionate to the crime; 2) the sentencing scheme narrow the class of persons eligible for the death penalty and reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder, and 3) the sentencer be allowed to consider all evidence that tends to mitigate moral culpability and militate against a sentence of death. See Zant v. Stephens, 462 U.S. 862, 877 (1983); Response to Motion for Order Respecting Potential Sentence, January 25, 1993, at 2-4. 1181. See United States v. Woolard and Bruner, 990 F.2d 819 (5th Cir. 1993); United States v. Cheely, 814 F.Supp. 1430 (D. Alaska 1992). The prosecution made no additional argument other that those made by the Department of Justice in its brief appealing the decision in Cheely to the Ninth Circuit, namely the district court could fashion procedures to govern the sentencing proceedings. 1182. Letter from Maurice Ellsworth to Jim Reynolds, January 27, 1993. 1183. Associate Deputy Attorney General David Margolis told this investigation that Reynolds also did not support the request because the trial judge had said that he would declare the death penalty provision for this statute unconstitutional, if it were invoked. Margolis added that Reynolds thought the facts of the Weaver case were "somewhat 'muddy.'" FD-032 Interview with David Margolis, December 10, 1993, at 1-2. 1184. Id. at 2. 1185. Id. at 2-3. 1186. FD-302 Interview of John D. Keeney, December 10, 1993, at 1; Margolis FD-302, at 2-3. 1187. Margolis FD-302, at 3. 1188. See Letter from Acting Attorney General Stuart M. Gerson to Maurice Ellsworth, February 19, 1993. 1189. See Order Respecting Potential Penalty, February 26, 1993, at 2-3. See also United States v. Steel, 759 F.2d 706, 709 (9th Cir, 1985); United States v. Kennedy, 618 F.2d 557, 558, (9th Cir. 1980). 1190. [G.J.] 1191. Closing Argument of Gerry Spence, June 15, 1993, at 10. 1192. See Boyle Order at 8; United States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 1988) (motion to strike surplusage language from an indictment is within the sound discretion of the trial court). 1193. The alleged threats also included threats against then Governor John Evans and law enforcement officials. Ekstrom did not mention that the Secret Service interviewed Weaver and found the accusations to be without foundation. See Section IV(A). 1194. See [G.J.] The affidavit was included in the indictment as overt act 6. 1195. See 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. 1196. Only one of the four people in the helicopter thought he heard shots; the other three heard nothing of were certain that the helicopter had not taken fire. 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. However, another passenger said that no shots has been fired and that "it would have been 'grossly unfair' to accuse the Weavers of shooting." FD-302 Interview of Richard Weiss, September 11 & 18, 1992, at 1-2; see FD-302 Interview of Brooke Skulski, September 28, 1992. Weaver denied that shots had been fired at the helicopter. "Fugitive: No Surrender," Cour D'Alene Press, May 3, 1992, at 1. Deputy property on the day of the alleged shooting, but was unaware of any evidence that shots had been fired. See Report of Investigation by Mays, April 18, 1992. 1197. See U.S. Department of Justice, Federal Grand Jury Practice, January 1993, at 104; United States Attorney's Manual 9-11.233. 1198. See [G.J.] 1199. [G.J.] For a discussion of the installation of the surveillance cameras, see Section IV(C). 1200. [G.J.] the charred remains of the camera equipment were found near the Weaver house after Weaver surrendered. A battery from the camera was also found intact. Moriarty FD-302, at 6. 1201. [G.J.] 1202. [G.J.] 1203. [G.J.] 1204. We note that, compared to the other charges facing Weaver and Harris, the theft of the water system and gasoline was a trivial matter unlikely to prejudice the jury unduly. 1205. We reject the assertion that Vicki Weaver aided and abetted offensive action against the helicopter by hoding the door open. From Horuichi's testimony, it is clear that the threat to the helicopter had ceased by the time Randy and Sara Weaver and Harris ran to the cabin. The overt act alleges that the named individuals personally threatened the helicopter. 1206. [G.J.] Cooper Trail Testimony, April 15, 1993, at 122-24. 1207. [G.J.] 1208. The conspiracy count also cites 18 U.S.C. 3, which defines an accessory after the fact as someone who, "knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment." The grand jury heard extensive testimony about the week-long standoff with authorities which followed the shooting at the Y. 1209. [G.J.] 1210. Howen Interview, Tape 11, at 21-22. 1211. A prosecutor should not pursue criminal charges when he "knows that the charges are not supported by probable cause," or where there is "insufficient admissible evidence to support a conviction." ABA Standards for Criminal Justice: The Prosecution Function, Standard 3-3.9(a) (3d. ed. 1992). The investigative team did not find that Howen continued the prosecution knowing that there was not sufficient evidence to support the charges. 1212. See [G.J.] 1213. See [G.J.] 1214. [G.J.] 1215. [G.J.] 1216. [G.J.] 1217. United States v. Troutman, 814 F.2d at 1443. See also ABA Model Code of Professional Responsibility, DR 5-101(B) (1) and (2). 1218. [G.J.] 1219. United States v. McKenzie, 678 F.2d 629, 632 (5th Cir.), cert. denied, 459 U.S. 1038 (1982). See U.S. Department of Justice, Federal Grand Jury Practice, January 1993, at 63. 1220. Lanceley complained to this inquiry that he thought that Howen "put him on the spot" by asking a series of questions that were "beyond his knowledge. . . and area of responsibility." Lanceley FD-302, September 2, 1993, at 3-4. 1221. See [G.J.] 1222. [G.J.] 1223. [G.J.] See U.S. Department of Justice, Federal Grand Jury Practice, January 1993, at 54. 1224. [G.J.] 1225. [G.J.] 1226. United States v. Mechanik, 475 U.S. 66, 74 (1986) (O'Conner, J. concurring). 1227. United States v. Al Mudarris, 695 F.2d 1182, 1184-85 (9th Cir.), cert. denied, 461 U.S. 932 (1983). 1228. United States Attorney's Manual 9-11.020. The American Bar Association's Criminal Justice Standards similarly provide that a prosecutor "should not make statements or arguments in an effort to influence grand jury action in a manner which would be impermissible at trial before a petit jury." ABA Standards for Criminal Justice: The Prosecution Function, Standard 3-3.5(b) (3d ed. 1992). 1299. For example, during a recorded conversation, Weaver, the BATF informant, and Frank Kumnick spoke of someone in the Order shooting "a talk [show] host" and noted that there would soon be a change in leadership within the Order, that the Order was passing "funny money," and that a lot of people in the "movement" were "facing 100 year [jail] sentences." Transcript of conversation between Randy Weaver, Kenneth Weaver, Kenneth Fedeley and Frank Kumnick, January 20, 1987, at 11, 19-20, 30. 1230. See, e.g., United States v. Winslow, 962 F.2d 845, 850 (9th Cir. 1992); United States v. Cutler, 806 F.2d 933, 936 (9th Cir. 1986). 1231. In affirming the conviction of Robert Winslow, an Aryan Nations member Howen prosecuted before the Weaver case, the Ninth Circuit held that it was permissible to introduce background evidence of "controversial aspects of the Aryan Nations organization." United States v. Winslow, 962 F.2d at 847. However the trial court had not permitted Howen to offer "in depth explanations of objectionable terms that came up during testimony" and allowed only "a limited explanation of some of the practices of the organization." 962 F.2d at 850. 1232. See United States v. Venegas, 800 F.2d 868, 870 (9th Cir.), cert. denied, 479 U.S. 1100 (1986) (prosecutor's elicitation of testimony from former members of group to which the accused belonged that the group was radical and dangerous and that the former members testified at great risk to their lives was "inappropriate"); United States v. Serbo, 604 F.2d 807, 818 Nostra hatchet men. . . was a blatant invitation to associate the defendants with a disfavored criminal class" and constituted extreme prosecutorial misconduct); United States v. Riccobene, 451 F.2d 586, 587 (3rd Cir. 1971) (prosecutor's comment connecting defendant with organized crime was improper); See also United States v. Samango, 607 F.2d 877, 883 n.10 (9th Cir. 1979) (evidence of the "bad character" of the accused in generally inadmissible in grand jury proceedings). 1233. Id. See United States v. Venegas, 800 F.2d at 870; United States v. Serubo, 604 F.2d at 818; United States v. Riccobene, 451 F.2d at 587. 1234. See United States v. Sears Roebuck & Co., 719 F-2d 1386, 1391-92 (9th Cir. 1983), cert. denied, 465 U.S. 1079 (1984). 1235. [G.J.] 1236. U.S. Department of Justice, Federal Grand Jury Practice, January 1993, at 62 (citation omitted). 1237. See [G.J.] 1238. United States Attorney's Manual, 9-11.020. 1239. See United States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982) 1240. Costello v. United States, 350 U.S. 359, 363 (1956). 1241. See United States v. Wright, 667 F.2d at 796. Compare United States v. Linetsky, 533 F.2.d 192, 200-01 (5th Cir. 1976). 1242. See United States v. Al Mudarris, 695 f 2.d 1182, 1188, (9th Cir. 1983), cert. denied, 461 U.S. 932 (1983) (prosecutor's right to exercise discretion and selectively in presenting evidence to the grand jury does not permit him to mislead the grand jury in the performance of its duties). 1243. [G.J.] 1244. See 18 U.S.C. 241. 1245. [G.J.] 1246. Ellsworth Sworn Statement, Tape 6, at 21; Howen Sworn Statement, Tape 11, at 45-56. 1247. Response to Motion for Order Respecting Potential Sentence, January 25, 1993, at 2-4. 1248. The trial court ruled that the death penalty did not apply as a matter of law and did not address the factual underpinnings of the prosecution's position. 1249. Margolis believes that, by approving the U.S. Attorney's request, the Department of Justice was simply authorizing the U.S. Attorney to seek the death penalty. The jury would still have had to find Weaver and Harris guilty beyond a reasonable doubt before the penalty attached. Margolis FD-302, at 3. 1250. Maurice Ellsworth Sworn Statement, Tape 6, at 23; Ron Howen Statement, Tape 11, at 45-46. 1251. We note, however, that the defense did not suffer any harm as result of the prosecution's effort to seek the death penalty. To the contrary, Weaver and Harris were assigned additional counsel when it appeared that the matter might be tried as a capital case. The court continued those appointments, even after ruling that the death penalty could not be applied. 1252. See United State v. Birdman, 602 F.2d at 553 (prestige of prosecutor's office may enhance his credibility).