_________________________________________________________________ IV. SPECIFIC ISSUES INVESTIGATED M. ALLEGED PROBLEMS WITH THE FBI'S PARTICIPATION AND COOPERATION IN THE DISCOVERY PROCESS 1. INTRODUCTION From the beginning of its preparation of the Weaver case for trial, it was always the intent of the U.S. Attorney's Office in Boise, Idaho ("USAO") to provide discovery to the defense in accordance with a modified open discovery policy. [FN1253] This discovery policy together with the scope and breadth of the indictment created concern among members of the FBI including those at FBI headquarters. [FN1254] Such concern contributed to a resistance by the FBI to produce certain materials that the USAO deemed pertinent to the case but which the FBI believed were either irrelevant to what it perceived to be the real issues in the case or too sensitive to be disclosed. In addition, some believed that the failure of the FBI laboratory to process materials and to conduct tests in a timely fashion further impaired the ability of the USAO to respond to the discovery demands of the Weaver case. [FN1255] A final discovery problem surfaced during trial when the FBI produced, in response to a defense subpoena, additional documents related to the FBI shooting incident report which the USAO maintained it had requested in discovery throughout the pretrial period. It has been alleged that these problems and the delays and embarrassment that resulted were unnecessary and adversely affected the Weaver case. 2. STATEMENT OF FACTS a. Defining the Scope of Discovery Immediately after Harris and Weaver surrendered to law enforcement authorities, the USAO began preparing the case for indictment and trial. Important components of this process included taking steps to insure that evidence was located and preserved and developing a discovery strategy. [FN1256] Due to the intense media interest in the Weaver case coupled with the defense allegations that law enforcement personnel had acted unlawfully and that government officials were participating in a coverup, members of the USAO decided to adopt a modified open discovery policy. [FN1257] Such a discovery policy was consistent with the USAO practice in handling other cases in their district. On October 16, the USAO and defense counsel entered into an agreement captioned "Stipulation and Reciprocal Request for Discovery and Inspection, Notice of Alibi and Notice of Mental Condition" which set forth the discovery obligations of the parties. Pursuant to the terms of the stipulation, the parties were to provide the reciprocal disclosure of the materials stated in Rule 16(a)(1) and 16(b)(1) and the "reciprocal pre- trial disclosure and inspection of Jencks Act (18 U.S.C. 3500) materials, Rule 26.2, F.R. Crim. P materials and transcripts of testimony and exhibits presented to the Grand Jury." [FN1258] It was further agreed that "rough notes [were] generally not Jencks or Rule 26.2 materials unless they [were] a substantially verbatim recital of the trial or intended trial witness' oral statement or seen, signed or otherwise adopted by the witness' oral statement, or seen, signed, or otherwise adopted by the witness . . ." [FN1259] The stipulation added that "in the exchange of Jencks or Rule 26.2 materials including rough notes, the parties [were] authorized to redact information from those materials as permitted by case law, statute or rule, including but not limited to . . . information directly or indirectly relating to equipment, tactics and strategies of investigation, apprehension or arrest and case preparation. Such redaction [was to] be subject to in camera inspection by the Court upon written motion or objection of a party." [FN1260] With regard to the timing of discovery the stipulation stated that, "[i]t is the intention of the parties to accelerate the time table for discovery and inspection to a time significantly in advance of trial so that all pre-trial motions are fully and promptly made and ruled on, so that trial preparation is completed in advance of trial, so that unjustifiable delay and expense are eliminated which may result from literal application of the statutes and rules, and so that a fair, just and truthful determination of the charges pending against the defendants may be resolved consistent with the security concerns of the Court, the parties, defendants and prospective witnesses. . . . The parties further stipulate[d] and agree[d] to file a written response to [the] stipulation on or before October 23, 1992, and on a continuing basis thereafter pursuant to Rules 12.1(c), 12.2 (a) and (b) and 16 (c), F.R. Crim. P." [FN1261] A week after signing of the stipulation, the government provided its initial discovery response. [FN1262] The government continued to provide material during the pretrial period and into the trial. Indeed, the government filed multiple addenda summarizing the huge volume of materials that had been produced to the defense, including video tapes, audio tapes, investigative reports, laboratory reports and thousands of pages of documents. Much of the material that the government produced in discovery originated from the FBI and was produced on a timely basis. However, questions have been raised as to whether actions by the FBI impeded the discovery process. In particular, allegations have been made that the FBI failed to cooperate with allegations have been made that the FBI failed to cooperate with the USAO in meeting its discovery obligations and unjustifiably resisted producing certain documents. These actions are alleged to have impacted adversely on the prosecution of the Weaver case. b. The FBI Response to Discovery Demands From his very first communications with Special Agent in Charge Eugena Glenn on September 3, 1992, [FN1263] U.S. Attorney Ellsworth made it clear that it was important for the FBI to preserve and produce a broad range of documents that would be pertinent to discovery and trial. Ellsworth and Assistant U.S. Attorney Ronald Howen, who was primarily responsible for the discovery matters in the Weaver prosecution, strongly believed that a complete production of relevant materials [FN1264] was critical to defend against the charge of a government coverup. Throughout the pretrial period members of the USAO repeatedly requested the FBI to produce all pertinent materials and requested an opportunity to review all the relevant files at FBI headquarters. According to Supervisory Special Agent T. Michael Dillon, most of the conversations with the USAO concerning discovery occurred between the FBI case agents -- Special Agents Joseph Venkus and Gregory Rampton -- and Assistant U.S. Attorneys Howen and Kim Lindquist. Rampton and Venkus passed these discovery requests to Dillon, who relayed them to FBI Headquarters. Dillon told investigators that from the beginning of the Weaver case he was required to make frequent phone calls to FBI Headquarters in an attempt to assist in the release of discovery materials. He stated that most of his contacts were with Gale Evans of the Violent Crimes Unit of the Criminal Investigative Division ("CID") although he did recall at least one phone conversation with Section Chief Michael Kahoe. [FN1266] It is normal FBI practice for the Principal Legal Advisor at the Field Division level to handle discovery requests since they usually have access to the requested materials. [FN1267] In this case, however, the Boise Resident Agency produced those materials over which they had access and then coordinated with FBI headquarters regarding the other materials that were housed or controlled there. [FN1268] [GARRITY] [FN1269] [FN1270] The first discovery conflict surfaced on September 23, 1992, when Lindquist travelled with Rampton to Quantico, Virginia to meet with Assistant Special Agent in Charge Richard Rogers to discuss the actions of the Hostage Rescue Team ("HRT"). While at Quantico they met with special agent Lester Hazen who showed them a copy of the operations plan drafted for the HRT during the Ruby Ridge crisis. When Lindquist requested a copy of the operations plan Rogers responded that the operations plan had never been approved and he did not want to produce the document to Lindquist because it contained sensitive information. Finding this position unacceptable, Lindquist is reported to have told Rogers that he would obtain a court order that would permit him to have access to the operations plan. Because it appeared that neither Rogers nor Lindquist were willing to compromise, Rampton suggested that Lindquist be able to review the report but not be given a copy of it. If the court requested the information later, Rampton proposed that the parties could negotiate further about the release of the information. Rampton reported that Lindquist and Rogers acceded to this compromise. [FN1271] Rogers also informed Lindquist and Rampton that all of the HRT members had prepared signed sworn statements as part of an internal shooting review conducted by the Inspection Division of the FBI. When Rampton requested these statements, Rogers told him that he did not have the authority to release them and instructed Rampton to contact the Inspection Division. Later Rampton spoke with Paul Philip, the Deputy Assistant Director of the Inspection Division about obtaining these statements. [FN1272] Rampton recalled that Philip contacted Dave Binney who told him that the signed statements could be given to Lindquist. Thereafter, Rampton informed Rogers of the authorization, obtained the sworn statements from the HRT members, attached a cover 302 and produced them to Lindquist. [FN1273] Lindquist recalls that he reviewed these statements on this trip but that he never was given access to the entire shooting incident report. [FN1274] [GARRITY] [FN1275] [FN1276] [FN1277] [FN1278] [FN1279] [FN1280] c. Attempts to Resolve the Discovery Disputes Unable to resolve its disagreement with the FBI regarding these documents, both the USAO and the FBI sought the assistance of the Terrorism and Violent Crime Section ("TVCS") of the Criminal Division of the Department of Justice in Washington, D.C. The initial disagreement between the USAO and the FBI focused on a relatively small number of documents. The most significant documents in this group were the September 30, 1992 shooting incident report; the November 9, 1992 shooting incident Review Group memorandum; the FBI operations plan and annex; and, later, the FBI critique of the U.S. Marshals Service. [FN1281] [GARRITY] [FN1282] [GARRITY] (1) Documents at Issue The first document at issue was the shooting incident report dated September 30, 1992. That document was a report prepared by a shooting incident review team of the Inspection Division of the FBI and represented the findings of an administrative inquiry into the August 22, 1992 shootings by the HRT at Ruby Ridge which resulted in the death of Vicki Weaver and the injuries to Kevin Harris and Randy Weaver. [FN1283] It consisted of: a 5-page cover memo with findings from Inspector Thomas W. Miller dated September 30, 1992; the statements of the HRT members some of which were signed sworn statements and others which were in the form of a FD-302; [FN1284] autopsy reports of the three individuals killed at Ruby Ridge; a statement of the prospective status of the subjects; crime scene photographs and diagrams; and news clippings. The notes of the investigators who conducted the interviews of the HRT members were not included as part of the report. The shooting incident report had been forwarded to the Shooting Incident Review Group ("Review Group") which reviewed it to determine if any administrative action was warranted against any FBI employee involved in the shootings. After analyzing the report, the Review Group prepared a four-page memorandum articulating its views as to whether administrative action was appropriate. In this memorandum dated November 9, 1992, the Review Group concluded that the actions taken were lawful and within FBI rules and procedures and thus no administrative action was necessary. This memorandum was attached to the September 30, 1992 report and forwarded to Steven Pomerantz, the Assistant Director of the Administrative Services Division. [GARRITY] Although the FBI had produced in discovery most of the FD-302 statements of those interviewed in the internal investigation, it was unwilling to produce the entire shooting incident report because it was an internal document that had never previously been produced in discovery. [GARRITY] [FN1285] [GARRITY] [FN1286] Another document at issue was the operational plan and annex which set forth the initial strategy contemplated for the operational plan to be used at Ruby Ridge. [FN1287] Components of this plan included controlling the crisis site through the deployment of sniper/observers followed by establishing communications with Weaver and others in the cabin. [GARRITY] [FN1288] [GARRITY] [FN1289] The third document that the FBI did not want to produce in discovery has been referred to as the "marshals critique." [FN1290] This is a two page document containing 12 critical observations of the actions of the Marshals Service at Ruby Ridge. These observations are supposed to be based on interviews of members of the Marshals Service and the HRT. Special Agent Venkus and Assistant U.S. Attorney Lindquist first learned of this document on December 1, 1992 when they traveled to Washington, D.C. to review the FBI headquarters file and to talk with HRT members. Venkus made a copy of the critique and took it back to the FBI office in Boise where Venkus gave Lindquist access to it under the condition that it be returned. [FN1291] Because of the critical nature of the critique, the Bureau resisted its disclosure. inappropriate because it [GARRITY] [FN1292] Dillon reportedly told Deputy Marshal Masaitis that he would rather see a mistrial than produce the marshals critique in discovery. [FN1293] When Lindquist tried to explain to Dillon the serious repercussions that would occur if the government failed to produce the critique in discovery but later produced it in response to a Freedom of Information Act request, Dillon responded that the document had come from someone's desk and was not in any official file that would be searched for a FOIA. request. From Dillon's comments, Lindquist was concerned that someone from the Bureau might be contemplating destroying the document so that it would not have to be produced. Lindquist advised strenuously against such action. [FN1294] (2) Negotiations Among the Parties Due to the complaints received from the USAO and the FBI, attorneys from the Terrorism and Violent Crime Section of the Department of Justice contacted FBI officials in an attempt to solve the impasse. [FN1295] [GARRITY] [FN1296] With the arrival of 1993, the USAO and FBI could still not agree on what documents needed to be produced in discovery. On January 4, Howen and Lindquist met with the FBI case agents and repeated their request for all pertinent documents at FBI Headquarters, including the shooting incident report. [FN1297] On January 6, Howen sent a letter to Glenn in which he formally repeated his earlier requests for all pertinent materials from FBI headquarters and elsewhere, including files, reports, documents, that they had not previously received. Howen then wrote, "[i]n other words, we want access to everything." Howen also requested a copy of "[t]he administrative file concerning the review of the HRT sniper shooting on August 22, 1992 . . . but not limited to, the shooting reports, the names and phone numbers of the agents who participated in the preparation of the report, any diagrams or charts of angles, including a preliminary diagram that showed the sniper shot directly into the house, and any other document or papers" and "[a]ny other documents or reports of any evaluations or critiques of the actions of . . . the HRT team on August 22-31, 1992." [FN1298] Copies of this letter were sent to James Reynolds and Michael Dillon. Later that same day, U.S. Attorney Ellsworth called James Reynolds, Chief of the Terrorism and Violent Crime Section of the Criminal Division of DOJ, and complained that the local FBI was refusing to produce documents needed in the Weaver case. Although a number of documents were involved involved, Ellsworth identified the most critical ones as being the shooting incident report and the HRT operations plan. Following his conversation with Ellsworth, Reynolds arranged a meeting for the next day at the Department of Justice with FBI officials to discuss the discovery dispute. [FN1299] The first meeting was held on January 7. Attending the meeting on behalf of the Department were Deputy Assistant Attorney General Mark Richard who chaired the meeting, Reynolds, and Deputy Section Chiefs Dana Biehl and Mary Incontro; attending the meeting on behalf of the FBI were Danny Coulson and Mike Kahoe, the Chairman of the Shooting Incident Review Group. At the meeting the participants focused on the scope of the indictment and the specific documents that the FBI did not want to produce. The FBI maintained that the indictment was too broad and should have been limited to the death of Deputy Marshal Degan on August 21. The FBI argued that a more narrowly drafted indictment would have eliminated the need to produce the documents at issue. [FN1300] Richard, who opined that it was much too late to shift the government's theory of the case, agreed with Reynolds that a more narrow indictment would not have shielded the documents from production. [FN1301] With regard to the documents at issue, Coulson articulated his concern that the operations plan had never been approved and that if the operations plan were to be released it would disclose HRT operational secrets. As a compromise, Coulson offered to allow the prosecutors to view the operations plan after the sensitive information had been redacted. Reynolds believed that this compromise was reasonable and stated that when the USAO was informed of the proposal they agreed with it. [FN1302] At the end of the meeting, the FBI agreed to allow the USAO to view but not possess or produce the following documents: the November 9, 1992 Review Group memorandum; the August 23, 1992 operations plan and annex; the September 15, 1992 internal FBI headquarters note; an undated internal FBI headquarters note regarding the Weaver and Harris matter [FN1304]; 19 situation reports from August 23-31 1992; and the shooting incident report dated September 30, 1992. [FN1305] Later that day, Kahoe instructed Gale Evans, Unit Chief of the Violent Crimes Unit of the Criminal Investigative Division, to send the shooting incident report to Mike Dillon by overnight delivery. Evans, who obtained a copy of the report from the files of Kahoe who had been the Chairman of the Shooting Incident Review Group, did not recall seeing interview notes with the report. Thereafter, Evans prepared a memorandum to accompany the report which incorporated instructions from Potts that the report was to remain within FBI space and was to be reviewed by prosecutors only within this space. [FN1306] On January 12, Evans forwarded the documents to Dillon that the FBI had agreed to produce in the January 7th meeting [FN1307] and stated in the accompying memorandum: As with the Shooting Report furnished to Salt Lake Division over the weekend of 1/8/93, the above documents are to be maintained in the Boise Resident Agency and afforded appropriate security. Per Assistant Director Potts, these documents are not to be released to the prosecution and are only to be reviewed under FBI supervision. [GARRITY] [FN1309] Venkus stated that when they received these instructions, he, Rampton and Dillon were upset that they could not turn the report over to the USAO. [FN1310] Lindquist reviewed these documents in the FBI office in Boise on January 20. [FN1311] Following this review, Lindquist informed Howen that the report was not harmful to their case and that he believed it was discoverable. [FN1312] Shortly thereafter, Ellsworth wrote a letter to Dillon requesting that he provide the following documents to review, to produce in discovery and to use at trial: administrative shooting report, headquarters memo of shooting report, operations plan and annex, internal headquarters note with entries regarding the case and headquarters situation reports such as SIOC log synopses. [FN1313] Ellsworth opined that the documents were either responsive to the government's obligations under Jencks and Brady or were otherwise discoverable. He then wrote: Your agency requested that our office not have possession of these documents or review them in discovery without first giving you written notice and an opportunity to intervene or persuade the Department of Justice to intervene in our decision regarding discovery and inspection. We remain sensitive to your concerns and wish to work with the F.B.I. in this regard, but, as we addressed in our letter of January 6, 1993, our office needs access to all files and documents at F.B.I. Headquarters that related to this case, not only for use at trial, but, also, to complete pretrial interviews of all potential witnesses. We reiterate the need to review all such materials as they might be further identified. [FN1314] Ellsworth closed the letter by requesting "immediate and permanent possession of these materials and a review of any additional possession of these materials and a review of any additional that might still be identified." [FN1315] In early February 1993, Lindquist again requested the FBI to produce all documentation at FBI Headquarters that was pertinent to the Weaver case including the SIOC logs which Rampton subsequently determined had already been produced. [FN1316] It was not until the middle of March 1993 that Department of Justice officials learned that the FBI had still not produced these documents to the USAO. Thereafter, Reynolds retrieved a copy of the January 12, FBI memo transmitting the documents at issue to the Boise Resident Agency. Using that document as a reference Reynolds contacted the USAO and reviewed whether the documents listed in that memorandum, including the FBI critique of the marshals which Reynolds added to the list, were needed at trial or for discovery. [FN1317] After his discussion with the USAO, Reynolds requested Dana Biehl to examine the documents that the USAO wanted to produce in discovery and to provide his views as to whether they were discoverable. [FN1318] On March 17, Biehl sent a memorandum to Reynolds in which he opined that the three documents at issue were either Brady or Jencks material. [FN1319] After reviewing the Biehl memorandum, James Reynolds, on March 18, sent a memorandum to Mark Richard informing him of the continuing discovery dispute between the FBI and the USAO. In addition to the documents discussed at the January 7th meeting, Reynolds told Richard that an additional document -- a marshal's critique which the prosecution knew existed but had never seen- - had been added to the list of documents that the FBI did not want to produce. Reynolds informed Richard that all of the documents at issue, with the exception of some internal FBI headquarters notes, appeared to be discoverable or to constitute Jencks or Brady material. He recommended that they work with the FBI and the prosecutors to resolve the issues and to develop a strategy to protect sensitive information within some of the documents. In addition, Reynolds noted, "we need to ensure that there is no additional material at Headquarters that is discoverable. While personnel of this Section are prepared to staff this effort, we have not been successful in initiating it, as the Bureau's intransigence appears to emanate from Larry Potts' level or above." [FN1320] Five days later, a second meeting was held at the Department of Justice to discuss the discovery dispute. This March 23rd meeting was attended by Richard, Reynolds, Incontro, and Biehl from the Department of Justice and Potts, Coulson, Kahoe from the FBI. According to Reynolds, the FBI continued to complain about the scope of the indictment and its impact on their discovery obligations. [FN1321] Incontro and Biehl recalled that they supported the USAO position that most of these documents, including the shooting incident report, should be produced in discovery. [FN1322] Reynolds recalled that Coulson finally consented to the production of the documents if sensitive portions of the operations plan were redacted. Those individuals at the meeting thought that the proposal to redact the operations plan was reasonable. [FN1323] On March 26, the USAO filed its Eighth Addendum to its Response to the Discovery Stipulation. In that document, the government identified additional items that were being produced in discovery including the November 9, 1992 Review Group Memo, the situation reports, the shooting incident report, the operations plan and annex and the marshals critique. [FN1324] Although identified in this filing, these documents were not produced to the defense until later. [FN1325] The shooting ] incident report was delivered by hand on April 7, 1993; [FN1326] the situation reports and the operations plan were delivered on April 10, 1993; and the Review Group memo and the marshals critique were delivered on April 12, 1993. [FN1327] The Weaver trial began the next day on April 13, 1993. d. The Defense Subpoena Deuces Tecum For the Shooting Incident Report On April 13, 1993 the defense filed an ex parte application for subpoenas duces tecum. Among the subpoenas sought was one ordering Inspector Thomas W. Miller, who had headed the review team examining the FBI shooting at Ruby Ridge, to bring "any and all records used by the 'Shooting Incident Review Team.'" [FN1328] Other subpoenas requested the FBI to produce copies of certain manual provisions and certain personnel files. [FN1329] Judge Lodge approved the issuance of these subpoenas on April 14. It appears that defense counsel delivered the subpoena for Miller to the Boise office of the FBI. Dillon sent the subpoena to Miller and forwarded a copy to FBI Headquarters. Dillon recalled discussing this subpoena with Kahoe and telling him that the defense would want the notes developed during the shooting investigation. Thereafter, Dillon learned that the notes were in the Legal Counsel Division and he told Kahoe that they would have to be mailed to Miller for him to testify. [FN1330] The evidence is conflicting as to whether the FBI notified the USAO of this subpoena. Rampton believed that during the trial Lindquist asked Venus to obtain a copy of the subpoenaed materials but that Venkus did not think that the information was needed until Miller was scheduled to testify. [FN1331] A July 29, 1993 chronology of events prepared by Rampton and Venkus after the trial and an April 28, 1993 handwritten note by Venkus indicate that Lindquist was advised that once Venkus received the "1-A" material sought by the subpoena he would produce it to Lindquist who would give the material to the defense. [FN1332] Lindquist who would give the material to the defense. Lindquist had a vague recollection of perhaps hearing that a subpoena had been served on Miller but he could recall no further details. [FN1333] Howen had no recollection of discussing with Lindquist in late April 1993 any efforts that the FBI was taking to check the "1-A" files for the interview notes. [FN1334] Although Howen was aware of subpoenas issued at the same time for FBI manuals and personnel files, he did not recall learning about this subpoena until early June. [FN1335] However, he added that if he had known about the subpoena he would not have been concerned because he would have assumed that the FBI would have produced the same documents as they had produced in discovery. [FN1336] On April 14 or 15, Supervisory Special Agent Brian Callihan from the Civil Litigation Unit I ("CLU I") of the LCD received a phone call or a facsimile from the FBI office in Boise informing him of two subpoenas that had been sent by Weaver's counsel. According to Callihan, someone had decided that the subpoena requesting the manual would be handled by the local office of the FBI as a routine request for the FBI manual while the subpoena directed to Miller would be handled by the LCD even though it had not been properly served. Attached to the subpoenas was a letter dated April 12, 1993 from defense counsel Charles Peterson to "potential witness" advising the witness as follows" Although the subpoena requires your attendance on April 17, 1993, I expect that you will not be called to testify until the completion of the Government's case, some six weeks into the trial. Please call my office as soon as possible so that you may be advised of a specific date and time to appear -- otherwise the subpoena requires you to attend continuously from the beginning of the trial until your testimony is given. If I am unavailable, please ask for Diane or Yvonne. [FN1337] Calihan stated that the letter left him with the belief that defense counsel would advise Miller when to appear. [FN1338] Because Callihan believed that Miller would probably not testify for at least another two months, he saw no reason to expedite the production of the subpoenaed documents. Callihan insisted that no one ever informed him that there was a need to expedite the handling of the subpoena or that the records were needed prior to the testimony of Miller. In addition, he believed that proper service of the subpoena had never been made on Miller. [FN1339] Accordingly, he processed the subpoena consistent with routine procedures by sending it to the Civil Discovery Unit ("CDRU") of the LCD. On April 30, two weeks after first learning of the subpoena, Callihan prepared a request to the CDRU and described the litigation as follows: Criminal trial is ongoing. The U.S. Attorney's office has previously released a number of documents to the defense. The attached subpoena requests additional documents for release to the defense. [FN1340] He then described the work that needed to be done: Locate and process for release to the defense attorney documents responsive to the attached subpoena. The shooting report has previously been released. The records used by the Shooting Incident Review Team would include 1-A's in the Shooting Review file and any other documents referred to and relied upon in the Shooting Report. [FN1341] Callihan also requested that the search be coordinated with CLU I and with Division 6. [FN1342] The Callihan request was directed to Monique Wilson. When Wilson first reviewed the subpoena she did not think that it included a request for the handwritten notes so she discussed the issue with Callihan on April 30. Callihan instructed her that the notes should be included. Later that day she requested the file from the confidential file room and received it shortly thereafter. However, when she examined the materials that had been produced she noticed that the handwritten notes were missing. She then returned to the confidential file room where they found the handwritten notes in the bulky exhibit section. Wilson stated that there was initial confusion in locating these notes because an incorrect date had been placed on the outside of the bulky package. Thereafter, Wilson processed the documents, made 5 copies as requested by Callihan and forwarded these materials to Callihan on May 11. [FN1343] When Callihan received the package from CDRU he reviewed it, approved it for dissemination and sent it on May 21, 1993 to the FBI mail room with a cover letter instructing them to send it to Miller and to send courtesy copies to the USAO. [FN1344] Callihan did not include instructions as to how the package was to be mailed; he concluded later that considering the size of the package and the absence of specific mailing instructions that it would have been sent by fourth class mail. [FN1345] Two weeks later, on June 4, the package arrived at the USAO. Roberta Cruser, the docket technician for the USAO, opened the package, dated stamped the Callihan cover letter and routed the materials at about 10:00 a.m. that morning to Howen. [FNB1346] At the luncheon recess Howen returned to his office. The court had just excused HRT member Lon Horiuchi after defense questioning hag been completed. When Howen arrived in his office he discovered the package on his desk with the May 21 cover letter from Callihan which indicated that Callihan was enclosing two copies of documents responsive to the defense subpoena seeking "any and all records used by the Shooting Incident Review Team." In addition, the letter stated: These documents consist of the original statements, and the FBI Manual of Investigative Operations and Guidelines provisions noted in the report as being read by all members of the Shooting Incident Review Unit and we believe that they are ready for release to the defendants' attorneys. [FN1347] Howen recognized that many of the documents in the package had been provided previously to them and to the defense in discovery. However, other documents in the package had never been produced. These never produced documents were: the agents' interview notes from the "1-A" files of all FBI personnel interviewed in the investigation except for Eugene Glen; and two drawings by HRT sniper Horiuchi including a shooting diagram of the second shot taken through the Weaver front door on August 22, 1992. When Howen examined the materials in the package and saw the Horiuchi diagram he knew that the late production of these materials would be difficult for the prosecution to explain and would result in significant criticism by the media. The impact was even greater because it followed closely behind several other damaging and embarrassing disclosures made during the trial. [FN1348] Howen stated that he does not think that he had ever "been as low professionally." [FN1349] Thereafter, Howen returned to the courtroom and informed the parties of the package that he had just received. Defense counsel referred to it as the latest in a series of incidents that had prejudiced the rights of the defendant and moved for the case to be dismissed because of alleged prosecutorial misconduct and for sanctions to be imposed on the government. Howen, after noting that many of the materials in the package had been previously produced, [FN1350] informed the court that his office was in the process of trying to determine the reasons for the late production of these materials. Howen stressed that his office produced the materials as soon as they were received and suggested that the responsibility for the late production of these materials rested elsewhere. The court deferred a definitive ruling until after the weekend and then stated, [T]he Court is very upset about these things happening. It does appear that it is somewhat of a pattern on the part of people, agencies outside of the District of Idaho. The Court does not agree that there is any evidence that the U.S. Attorney's Office at least locally, is doing anything to hinder the prosecution of this case or prejudice the defense. The comments of Mr. Howen just now indicate his veracity and his sincerity in trying to comply with the rules . . . . It seems to be totally inexcusable and extremely poor judgment on the part of whoever is involved to send something like this fourth class mail when a trial of this nature is going to, the cost of time and human tragedy that is involved. [FN1351] Following the court session, the USAO and others sought an explanation for the late arrival of the package of materials sent by Callihan. Callihan recalls that on June 4, a woman from the USAO called and asked in a "rude and obnoxious" manner why the documents had been sent by fourth class mail and why it had taken so long to send them. Callihan stated that he inquired why there was such a concern to which the woman said that Howen was upset about the delay. Callihan then told her that the request had been handled like similar requests and that Howen could call him to discuss the matter if he wanted. [FN1352] Sometime between 5:30 and 6:00 p.m. on June 4, Dillon telephoned Joseph R. Davis, Assistant Director of the Legal Counsel Division and informed him that the FBI headquarters was responsible for the late production of the documents in the Weaver case and that the judge in the case was very upset. [FN1353] Dillon also mentioned that he had received an earlier discovery request for these documents but had not received the documents until that day. He told Davis that the U.S. Attorney had requested the FBI to provide an explanation for the delay to give to the judge. Davis left messages on the answering machines of Brian Callihan and Thomas Clawson to call him. [FN1354] Later that same day, Callihan returned Davis' call. Davis informed him that the U.S. Attorney and Dillon were upset about the lateness of the transmittal and were unsure of what documents were in controversy. Callihan explained how he processed the request and repeated his understanding that there was no urgency to the request since Miller had not been expected to testify for several months. [FN1355] Thereafter, Davis called Ellsworth to attempt to resolve the conflict between the accounts given by Dillon and Callihan. During a conference call in which Davis, Callihan, Ellsworth, Dillon and perhaps others participated, Callihan repeated his version of events. Howen remarked that these documents were responsive to a number of discovery requests and should have been produced earlier. Ellsworth agreed and, along with Howen, requested LCD and Dillon to prepare sworn declarations to the court explaining the production delay. These declarations were prepared and sent to the USAO. [FN1356] Sometime around June 5, the government received an affidavit prepared by Brian Callihan in which he detailed how he learned of the subpoena, the actions he took in responding to it and the beliefs he had concerning the time requirements for production of the materials. Callihan then stated, "[a]lthough I may have been aware of a request from the U.S. Attorney's Office for the Shooting Incident Review Group Report, I was unaware that the U.S. Attorney's Office had previously requested any or all other records, documents, and notes in connection with this investigation." [FN1357] Dillon also prepared a draft affidavit in which he accepted responsibility for not adequately relaying the USAO request to FBI headquarters. Howen decided not to file any of the affidavits filed by individuals involved in the incident. [FN1358] On June 8, the parties made additional arguments to the court concerning how they should proceed after the disclosure of the subpoenaed materials. Of particular focus of the parties was the Horiuchi drawing and its significance. The court reserved its ruling until the next day but before doing so stated that: The Court does not excuse the FBI Agency, The Court thinks there has been a failure to comply with what was fully understand [sic] to be required. They get involved in these technicalities as to who was served, but it is obvious they had notice of it, they were aware of what was required, and again, it is not anytime to be playing games with the Court on technicalities. [FN1359] Judge Lodge issues his ruling on June 9 and ordered Horiuchito return for further examination in court due to the failure of the government to produce the materials in a timely manner. In addition, he assessed against the government the costs and defense attorney fees for the one-day delay. [FN1360] Almost five months later, on October 26, Judge Lodge issues an order imposing a separate fine of $1920 against the FBI. This fine represented the fees paid to defense counsel on the day that Horiuchi was brought back to testify. In this order, which is discussed more fully in section IV(o), Judge Lodge was highly critical of the actions of the FBI which he believed hampered the ability of the government to comply with its obligations to produce discoverable documents including Jencks and Brady materials. As a result of these actions, Judge Lodge found that the FBI had failed to comply with its discovery obligations under Fed. R. Crim. P. 16 and held them to be in contempt of court in violation of 18 U.S.C. Sec. 401. [FN1361] 3. DISCUSSION a. FBI Resistance to USAO Discovery Requests Our investigation has revealed that the prosecution of the Weaver matter was plagued and complicated by a continuing series of disagreements, misunderstandings and preconceptions that existed between the FBI and the USAO. One of the areas where such problems surfaced involved the efforts of the USAO t respond to its discovery obligations in the case. Over the course of the pretrial period, the FBI produced a large volume of material on a timely basis. Indeed, the FBI Resident Agency in Boise appeared to have been cooperative with the USAO and to have made good faith efforts to comply with the requests of the USAO. Although the overall effort of the FBI to respond to the discovery requests of the USAO appeared to have been good, we have found two areas where problems existed. The first involves the problems associated with the actions of the FBI Laboratory, which are discussed elsewhere in this report. The second area concerned the resistance of personnel at FBI headquarters to produce a group of documents that was small in number but significant in importance to the issues in the case. [FN1362] With regard to the production of this group of documents, it is our conclusion that FBI personnel, predominantly at the headquarters level, [FN1363] imposed unreasonable resistance and applied inappropriate standards to the discovery requests from the USAO, exhibited an unjustified unwillingness to cooperate as a teen member in the prosecution, and evidenced a troubling distrust of the USAO. Indeed, we were distressed by the persistent intransigence shown by FBI headquarters personnel. From the outset, officials at FBI headquarters opposed the prosecutors' theory of the case. They steadfastly adhered to their view that the indictment should be limited to the assault of a federal officer charge and that the conspiracy count was not supported by the evidence. The prosecutors were aware of this view but disagreed with it. Although a free exchange of ideas and information should always occur between the FBI and the USAO, the FBI in this case failed to appreciate that it is the prosecutor not the FBI that controls the direction of the prosecution. The FBI failed to identify the point where healthy debate became destructive resistance. The FBI used their disagreement over the scope of the indictment to support their refusal to produce certain materials in discovery. In the final analysis, with one exception, there seems to have been little basis for their refusal to produce these materials. Although the shooting incident report was an internal document, it was certainly pertinent to the issues in the prosecution. Even members of the FBI conceded its relevance. [FN1364] Standing alone, the fact that such a report had never been produced in discovery was not a basis to resist its production. Furthermore, as a practical matter, most of its contents, including the statements of the HRT members, had already been produced in discovery. Nor do we think that the resistance of the FBI to producing the November 9, 1992 Review Group memorandum was justified. Again, a document that was shielded from criminal discovery simply because it is evaluative in nature. Similarly, with respect to the marshals critique, there seemed no sound basis upon which the FBI could object to its production. The marshals critique may have been embarrassing to the FBI and the Marshals Service and it may not have been the result of thorough research and analysis but those factors are totally irrelevant to its discoverability. Of all the contested documents, the only one for which the FBI would seem to have had a valid concern was the operations plan and annex. However, as was ultimately done, the sensitive portions were redacted from the document before being produced to the defense. The prosecutors did not object to the redactions and, indeed, from the beginning of the controversy had been willing to consider the redaction of the document. [FN1365] Despite this willingness to compromise, the FBI maintained a course of stubborn resistance. In addition to the unjustified refusal to produce these materials we are concerned by the bureaucratic resistance of the FBI. Although objections were raised to producing these documents in discovery, no one ever assumed control at the headquarters level in an attempt to resolve the dispute expeditiously. Instead the controversy lingered for months before all of the documents were eventually produced in discovery. During this process, the FBI seemed to lose sight of its role as the investigative arm of the Department of Justice which is supposed to assist, not impede, federal prosecutors in pursuing violators of federal criminal laws. It was not until the Criminal Division of the Department of Justice intervened that the discovery dispute was received. [FN1366] Our investigation revealed that the discovery problems were symptomatic of a disturbing distrust by the FBI of the local federal prosecutors. Nothing in our investigation provided any explanation or justification for this lack of trust. We hope that the uncooperative attitude displayed by the FBI in the Weaver matter was an aberration. James Reynolds characterized the discovery dispute in the Weaver case as "unique." He told investigators that it was unusual for the Department to become involved in pretrial discovery disputes in cases litigated by the U.S. Attorneys. The refusal and reluctance of the FBI to permit the prosecutors to view the documents was, in Reynolds' view, inconsistent with his prior experience with other agencies in releasing material that was classified or of even greater sensitivity than the documents at issue in the Weaver case. Reynolds stated that it was apparent to him that the Violent Crimes Section of the FBI did not have a good idea of what was legally discoverable in a criminal case. [FN1367] FBI officials blamed some of the discovery difficulties to the attitudes of members of the USAO. [GARRITY] [FN1368] Our investigation found no support for these claims. From the beginning of the preparation of the case for trial, the USAO made it clear as to the scope of discovery and the types of materials that needed to be produced. Despite its repeated requests to review the headquarters files related to this case, the prosecutors were never afforded this opportunity. [FN1369] Indeed, to this day, the prosecutors are not confident that all pertinent materials located from FBI Headquarters were shown to them. [FN1370] The prosecutors recognized the discoverability of the contested documents and believed that they were obligated to produce them. The determination to obtain and produce discoverable materials cannot be classified as intransigent behavior. Although we believe that the USAO was clear in articulating the materials that needed to be produced in discovery, we are somewhat perplexed as to their failure to keep the Department of Justice officials who were assisting them in resolving the dispute better informed of the progress of the FBI in producing the documents at issue. After the January 7 meeting, over two months passed before the USAO contacted the Department of Justice to inform them that the FBI still needed to produce these documents so that the USAO had gained possession of these documents. The USAO never informed the Department of Justice officials of this additional delay and thus, never gained the further benefit of any assistance that they could have provided. Perhaps if the USAO had been more aggressive in keeping the Department informed of the progress of the production of the documents the controversy could have been resolved sooner. It is unclear what exact impact the dispute over these documents had on the government's case. Neither Howen nor Lindquist viewed this controversy as determinative of the outcome of the case. [FN1371] However, Lindquist thought that the repeated controversies over discovery issues had a cumulative effect on the judge that resulted in the judge imposing sanctions on the government after the untimely delivery of the subpoenaed version of the shooting incident report. [FN1372] In addition, the dispute needlessly diverted the valuable time, energy and attention of the prosecutors from critical trial preparation tasks. Ellsworth stated that they felt that they were "battling on two front" -- the defense counsel and the FBI. [FN1373] The prosecutors did not need the added aggravation of engaging in this debate at a time when they were required to prepare the case and witnesses for trial and to respond to continuous defense motions. The discovery debate also worsened the already tense relationship between the USAO and the FBI Resident Agency in Boise. [FN1374] Indeed, Dillon thought that the reluctance of the FBI Headquarters to release the documents contributed further to the tension between his office and the USAO.1375 The USAO had the right to expect the cooperation of the FBI throughout all phases of the discovery process. However, instead of a partner in this process, FBI Headquarters assumed the role of an adversary. b. Problems With Producing the Complete Shooting Incident Report and Supporting Materials Our investigation confirms that the USAO from September 1992 and throughout the pretrial period repeatedly requested the FBI to provide all materials pertinent to the events that occurred at Ruby Ridge. [FN1376] As the case preparation proceeded, the USAO renewed their requests for this material on a number of occasions. Moreover, as they learned that particular documents existed they included these documents in their requests. One such document was the shooting incident report dated September 30, 1992 and the memorandum of the Shooting Incident Review Group dated November 9, 1992. When the USAO finally received these documents on the eve of trial they believed that the materials produced to them constituted all of the documents related to the shooting report. However, unknown to them at the time, the production was incomplete. Shortly after the trial began and apparently without the knowledge of the USAO, the FBI received a defense subpoena for the shooting incident report and supporting materials. Five weeks later, the Legal Counsel Division of the FBI completed its response to the subpoena and sent the large package, without mailing instructions, to its mail room for shipment. Two weeks later, the package arrived at the USAO in Boise. Howen discovered upon opening the package that it contained, in addition to the shooting incident report that the government had already produced to the defense, the interview notes of the HRT members and two drawings by FBI sniper Lon Horiuchi. None of these latter materials had ever been shown or given to the USAO. The late production of these materials was significant and had a detrimental impact on the prosecution of the Weaver case. Indeed, this event provided additional support for the defense argument that the government was covering up the events that had occurred at Ruby Ridge. Moreover, the U.S. Attorney opined that when Horiuchi was called back for further cross examination, it afforded the defense another opportunity to remind the jury of the death of Vicki Weaver and how she had been killed. [FN1377] The untimely production of these materials raises a number of concerns. First and foremost is why these materials were not produced during the pretrial discovery phase of the case. there can be no doubt that the USAO requested these materials in a timely fashion and that they were entitled to have the FBI produce them promptly. Throughout the pretrial period the USAO, most notably Howen, repeatedly requested the FBI to produce all materials related to the FBI's participation at the crisis at Ruby Ridge. It appears that Dillon transmitted many of the USAO discovery requests to FBI Headquarters. Moreover, in addition to any communications received from the Boise Resident Agency, FBI Headquarters personnel were notified of these requests from direct communications with the USAO as well as by their discussions with members of the Terrorism and Violent Crime Section of the Department of Justice. Indeed, FBI headquarters officials were disgruntled because of the persistent attempts of the USAO to obtain 'everything." However, if there was ever any question as to the scope of materials that the USAO wanted with respect to the shooting incident report it surely was resolved by the January 6, 1993 letter from Howen to Glenn. The specificity of that letter in our opinion left no doubt that investigative notes and certainly drawings by an HRT sniper were encompassed within the request. Based on our investigation, we conclude that headquarters personnel were informed of the scope of discovery sought by the USAO yet failed to take adequate efforts to locate responsive materials. Dillon seeks to accept fully responsibility for this production problem because he may not have made adequate request for the investigative notes of the internal shooting inquiry. [FN1378] Howen opined to investigators that he thought it was unfair for Dillon to take the blame for what he believed to be omissions of FBI Headquarter's personnel. [FN1379] We agree. Perhaps someone should have been more aggressive in formulating instructions to FBI headquarters and monitoring the quality of their response. Nevertheless, the primary responsibility in this case must rest on the doorstep of FBI headquarters. They understood the requests and they were responsible for generating and storing the records being sought. We have yet to obtain clear evidence of what actual efforts were taken by the FBI to search their files for documents responsive to the discovery request as outlined by the USAO. However, our impression is that it was not a well organized search. Indeed, during our investigation, we found at least one document that fell within the scope of discovery but which the FBI had not located and produced. [FN1380] With regard to the shooting incident report, FBI officials argued that as a practical matter the original investigative notes are not considered to be part of the shooting report and that the discovery request was not broad enough to encompass these notes. [FN1381] We find this explanation unavialing since discovery request was certainly broad enough to encompass such notes. [FN1382] These officials indicated that they consider the shooting report to consist of the report without the backup notes. [FN1383] Also troubling is the apparent failure of CID to consult with the Inspections Division -- which was responsible for preparing the report -- and determine if they had retained any pertinent files. [FN1384] David Binney, who is the Assistant Director of the FBI Inspection Division, was very sure that he never received a discovery request for the shooting incident report. Binney emphasized that because a shooting incident report contains sensitive information the Legal Counsel Division would have to authorize the release of the document before it would be produced. Accordingly, if he had received a request, he would have forwarded it to Assistant Director Davis in the Legal Counsel Division. He has no recollection of making such a referral. [FN1385] In addition to our concern over the quality of the FBI's response to the discovery requests, we are distressed by the apparent lack of coordination between the CID and LCD after the subpoena was received. The FBI's pretrial response to the discovery request appears to have been handled totally by CID. We learned that such involvement by CID in criminal discovery was unusual. [FN1386] No evidence was found that CID ever communicated with LCD when it was responding to the discovery requests. [FN1387] Later, when the subpoena request arrived at FBI Headquarters, it was handled by LCD with no apparent assistance from CID. We find no evidence that CID and LCD worked together to produce the materials requested in the subpoena. [GARRITY] [FN1388] Although the April 30 search request prepared by Brian Callihan referenced that the report had been produced previously, there is no indication of when Callihan acquired that knowledge. The only conflicting evidence of whether CID was aware of the subpoena came from Dillon who recalled directing the subpoena to Miller and to FBI Headquarters. He seems to believe that he forwarded the subpoena to CID since he recalled speaking to Kahoe about the need to obtain the notes developed during the investigation and that he later learned that the subpoena had been transferred to LCD for handling. At that time, he recalled telling Kahoe that the investigative notes would have to be sent to Miller in order for him to testify. However, Dillon's recollection conflicts with that of Brian Callihan of LCD. Callihan did not recall learning about the subpoena from CID but rather from either a phone call of a facsimile on April 14 or 15, 1993 from the Boise Resident Agency. [FN1389] In addition to issues associated with the thoroughness of the FBI's response to the discovery request, we are concerned about the nature and quality of the FBI response to the defense subpoena. It is our view that aspects of that response could have been undertaken in a more responsible manner. [FN1390] At the outset, we are troubled that the FBI did not communicate with defense counsel Peterson to determine when Miller would testify. Callihan told investigators that he expected defense counsel to contact Miller. However, we think that the letter was clear that the obligation was upon the FBI not defense counsel to make the contact. We cannot countenance the laissez-faire attitude shown by the FBI to its legal obligations in an ongoing federal trial. Indeed, we are troubled by the relaxed pace at which the FBI responded to the subpoena when they had not even determined a date for Miller's testimony. After receiving the subpoena, Callihan waited two weeks before forwarding it for processing and when it was returned to him, he waited another ten days before drafting a cover letter and sending the package to the mail room. Then, when he forwarded it to the mail room, he neglected to provide specific mailing instructions. Finally, we fail to comprehend why the USAO was not consulted about responding to this subpoena. None of the prosecutors in the USAO -- Howen, Lindquist or Ellsworth -- ever recall being told of the subpoena or of any efforts by the FBI to assemble the requested materials. Nor is thee any evidence that Dillon alerted the prosecutors to the existence of this particular subpoena which was received at the same time as the subpoena for the FBI manual. [FN1391] The cryptic references to the USAO in a few notes do not suffice to establish such knowledge. Some of these discovery problems seem to have been caused by the failure of the FBI to have an organized system for responding to discovery requests. As previously mentioned, we requested the FBI to conduct another search of its files to ensure that all documents responsive to the discovery obligations in the Weaver case had been produced. [FN1392] We made this request because of our concern over the thoroughness and care in which the earlier searches had been conducted. We see a compelling need for a centralized tracking system in the FBI that would monitor and coordinate discovery and subpoena requests and then record actions taken in a case. Included in this tracking information should be the name of the person responsible for handling the requests as well as an identification of the files searched and the materials produced. Such requests should be handled by one person in one division not by multiple persons in multiple divisions. In addition to improving the methodology of retrieving responsive documents, we believe that the FBI needs to examine its practices concerning the preservation of case related materials. During our investigation, there were a number of instances in which an interviewee told us that he had prepared a document but no one could produce a copy of it. For example, we were told that there were multiple drafts of the operations plan yet we only were able to locate one draft version. Similarly, we never located any original facsimiles or notes of headquarters personnel that were prepared during the crisis at Ruby Ridge. We are troubled by the apparent lack of a system to preserve such critical records and believe that the FBI needs to institute a system to avoid such omissions in the future. 4. CONCLUSION Although we found no intent by the FBI headquarters personnel to violate the discovery obligations of the government, we believe that the FBI unreasonably resisted the efforts of the USAO to comply with their discovery responsibilities in the Weaver case. In addition, it appears that the FBI did not put forth its best efforts in responding to the discovery requests or the subsequent defense subpoena. Indeed, the decision of the court in October 1993 to fine the FBI for its intransigence on various discovery issues is consistent with our conclusion. Although the facts giving rise to the problems in the Weaver case may be unique, we believe that serious organization problems exist and must be corrected. There is a critical need in the future to improve the quality of the response of the FBI to discovery demands. Such improvement must include establishing an organized system of responding to and monitoring discovery requests and improving the coordination among FBI components. _________________________________________________________________ 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 M) 1253. This modified open discovery policy provided the defense with greater access to governmental materials and at an earlier time than required under the federal discovery rules. However, unlike an open discovery policy which permits complete access to the files of the prosecution, a modified open discovery policy does not permit such review. The modified discovery policy in effect in the Weaver case was incorporated into a reciprocal discovery stipulation executed by the parties on October 16, 1992. 1254. For a discussion of issues surrounding the scope of the indictment, see Section IV(L), supra. 1255. For a complete discussion of the issues surrounding the performance of the FBI laboratory and the impact of its actions on the discovery process and pretrial preparation in the Weaver case, see discussion in Section IV(J). 1256. On September 3, 1992, U.S. Attorney Maurice Ellsworth wrote letters to U.S. Marshal Michael Johnson and Special Agent in Charge Eugene Glenn requesting them to preserve and copy a list of materials that were needed for discovery and trial. See Letter from Maurice Ellsworth to Mike Johnson, September 3, 1992; Letter from Maurice Ellsworth to Eugene Glenn, September 3, 1992. Ellsworth reiterated this demand in a letter to Glenn on September 8, 1992. See Letter from Maurice Ellsworth to Eugene Glenn, September 8, 1992. 1257. FD-302 Interview of Maurice Ellsworth, October 29, 1993, at 7; Ellsworth Interview, Tape 1, at 30-31. 1258 Stipulation and Reciprocal Request for Discovery and Inspection, Notice of Alibi and Notice of Mental Condition, filed October 16, 1992, at 2. 1259. Id. 1260. Id. at 3. 1261. Id. at 4-5. 1262. See Response of the United States to Stipulation and Request for Discovery and Inspection, filed October 23, 1992. 1263. See Letters from Maurice Ellsworth to Eugene Glenn, September 3, 1992 and September 8, 1992. 1264. FD-302 Interview of T. Michael Dillon, October 25, 1993, at 8-9. For example, according to Special Agent Rampton, Lindquist requested all paperwork related to the Weaver case that was in the possession of FBI Headquarters. Thereafter, Rampton passed this request to Dillon. FD-302 Interview of Gregory Rampton, October 18-19, 1993, at 37. 1265. Rampton FD-302, at 32. 1266. FD-302 Interview of T. Michael Kahoe, October 25, 1993, at 9. 1267. See Sworn Statement of Danny O. Coulson, October 4, 1993, at 6; FD-302 Interview of Joseph R. Davis, August 10, 1993, at 5. 1268. Lee C. Rasmussen, the Principal Legal Advisor for the Salt Lake City Field Office, was not involved in the discovery in the Weaver case nor did he ever provide any legal advice regarding any discovery issues. FD-302 Interview of Lee C. Rasmussen, January 12, 1994 at 1-2. 1269. [GARRITY] 1270. [GARRITY] 1271. Rampton FD-302, at 19. 1272. Id. at 30; FD-302 Interview of Gregory Rampton, November 9, 1993 and November 22, 1993. Philip may have a slightly different recollection of this incident. He told investigators that he had a vague recollection of an FBI agent from "out west" and an unidentified individual coming to the Inspection Division and requesting the report. He told the agent that the report belonged to another division and, thus, he was without authority to release it. FD-302 Interview of Paul R. Philip, November 3, 1993, at 2. 1273. Rampton FD-302, October 18-19, 1993, at 30. See Rampton FD-302, November 9, 1993 and November 22, 1993. This conflicts with the recollection of Dillon which was that the request for the 302s of the HRT members was cleared through the Legal Counsel Division. Dillon FD-302, at 8. Our investigation suggests that Dillon's recollection is in error since LCD did not appear to have become involved in pretrial discovery issues. 1274. Lindquist Interview, Tape 5, at 1-2. The USAO produced most of these statements to the defense in October and November 1992. A few were not produced until April 7, 1993. See Memorandum from Richard T. Jessinger and Daniel R. Dzwilewski to Robert E. Walsh, October 17, 1993. 1275. [GARRITY] 1276. [GARRITY] 1277. Paul Philip of the Inspection Division disagrees with this advice. According to Philip, once an Investigation Division gives the report to the requesting division, that division becomes the owner of the report and entitled to rule on whether the report should be released. FD-302 Interview of Paul R. Philip, November 3, 1993, at 2. Special Agent Venkus told investigators that early in the case he spoke with Brain Callihan of the Legal Counsel Division at FBI headquarters regarding obtaining a copy of the shooting report. Venkus FD-302, at 13. 1278. [GARRITY] 1279. [GARRITY] 1280. [GARRITY] 1281. [GARRITY] 1282. FD-302 Interview of Dana D. Biehl, August 14, 1993, at 2. 1283. See discussion of this administrative inquiry and the report in Section IV(G). 1284. The FBI FD-302 is the form that FBI agents use to report of summarize the interviews that they conduct. 1285. [GARRITY] Sworn Statement of Eugene Glenn, January 12, 1994, at 36. 1286. [GARRITY] FD-Interview of Gale R. Evans, October 13, 1993, at 7. 1287. See Section IV(F) for a discussion of the development of and importance of this plan. 1288. [GARRITY] 1289. [GARRITY] W. Douglas Gow, Associate Deputy Director of the FBI, requested that this document be prepared in response to a call from Henry Hudson who asked him whether he "had any thought about the handling of [the Weaver] crisis or crisis in general." Hudson told Gow that as the new Director of the USMS he would appreciate any ideas that Gow could provide. Thereafter, John Uda was assigned the task of preparing the document. From the instructions that he received, Uda understood that he was identifying talking points that Coulson and Hudson would want discuss about the Weaver/Harris matter. Uda emphasized that these items were not intended to be criticisms of the USMS but with Hudson. Although Gow had intended to give the critique to Hudson, he never conveyed it to him. See Sworn Statement of W. Douglas Gow, January 4, 1994, at 12; [GARRITY] Douglas Gow, January 4, 1994, at 12; [GARRITY] Gale Evans FD-302, at 10; [GARRITY] FD-302 Interview with John Uda, November 23, 1993, at 1. 1291. Venkus FD-302, at 14; Rampton FD-302, at 33. See also, Lindquist Interview, Tape 5. at 2. 1292. [GARRITY] 1293. Masaitis Sworn Statement, at 9. 1294. Lindquist Interview, Tape 5. at 29-31. 1295. Although TVCS may sometimes manage a prosecution of a case designated as "major," their role in the Weaver prosecutive was only supportive. FD-302 Interview of James Reynolds, August 11, 1993, at 1. 1296 [GARRITY] 1297. See FBI Internal Memorandum on "89B-SU-38378 Issues," from Joseph Venkus and Gregory Rampton, August 3, 1993, This memorandum was given to investigators during the October 18-19, 1993 interview of Joseph Venkus. 1298. See Letter from Ronald Howen to Eugene Glenn, January 6, 1993. 1299. Reynolds FE-302, at 2-3. 1300. [GARRITY] Reynolds FD-302, August 11, 1993, at 3. 1301. Reynolds FD-302, at 3; Memorandum from James Reynolds to Mark Richard, March 18, 1993, at 2. 1302. Reynolds FD-302, at 3. 1303. This document is a two page chronology of significant events in the Weaver matter. 1304. This is a one page document which in four paragraphs summarizes the shootings and the surrender at Ruby Ridge. 1305. Reynolds FD-302, August 11, 1993, at 3. 1306. Gale Evans FD-302, at 5-6; [GARRITY] 1307. Gale Evans FD-302, at 6. 1308. FBI Memorandum, January 12, 1993. 1309. [GARRITY] 1310. Venkus FD-302, at 13. 1311. See Letter from Maurice Ellsworth to Michael Dillon, January 25, 1993, at 1. 1312. Lindquist Interview, Tape 5, at 5-6 1313. Letter from Maurice Ellsworth to Michael Dillon, January 25, 1993, at 1-2. 1314. Id. at 2. 1315. Id. 1316. Rampton FD-302, at 32. 1317. Reynolds FD-302, at 4. 1318. Id. When Biehl attempted to gain access to the shooting incident report from the FBI, Gale Evans told Biehl that the "section copy" was missing from their files. Reynolds was suspicious of this excuse and believed that it was part of the "shell game' that the FBI was playing with these documents. Reynolds FD-302, October 6, 1993, at 2. 1319. Memorandum from Dana Biehl to James Reynolds, March 17, 1993, at 1-4. 1320. Memorandum from James Reynolds to Mark Richard, March 18, 1993, at 307; Reynolds FD-302, August 11, 1993, at 5. 1321. Id. at 5. See also, Biehl FD-302, at 1-2. 1322. Incontro FD-302, at 3, Biehl FD-302, at 1-2. 1323. Reynolds FD-302, at 5. Howen stated that he had not problem with the reductions made to the operations plan. Howen Interview, Tape 9, at 55. See also, [GARRITY] Biehl FD-302, at 2. 1324. These documents were items 1431, 1432, 1433, 1434, and 1435 on the discovery list of items produced. See Government's Eighth Addendum to Response to Discovery Stipulation, filed March 26, 1993. 1325. Biehl informed Howen and Lindquist of the results of the meeting. Initially, he believed that the resolution reached at the March 23 meeting ended the disagreement between the USAO and the FBI. He assumed that the documents were produced to the USAO. It was only later that he learned that the documents had not been immediately produced. He told investigators that Howen and Lindquist conceded that they had "dropped the ball" by not pursuing the matter further by contacting DOJ. Biehl FD-302, at 2-3. At his interview with investigators, Howen was unable to recall the circumstances surrounding the delay: Howen Interview, Tape 10, at 11-14. 1326. Government Tenth Addendum to Response to Stipulation and Request for Discovery and Inspection, filed April 7, 1993 at 4-6. 1327. Government Tenth Addendum to Response to Stipulation and Request for Discovery and Inspection, filed April 12, 1993 at 3, 5. 1328. Subpoena Duces Tecum to Inspector Miller, April 13, 1993. 1329. See Section IV(O) for a discussion of the compliance of the government to these other subpoenas. 1330. Dillon FD-302, at 9. [GARRITY] 1331. Rampton FD-302, at 31. 1332. See Document entitled. "89B/SU-38378 Issues," July 29, 1993, at 10; Handwritten Notes of Joseph Venkus, April 28, 1993. 1333. Lindquist Interview, Tape 5, at 18-20. 1334. Howen Interview, Tape 10, at 19. 1335. Id. at 41. 1336. Id. at 56-57. 1337. Letter from Charles F. Peterson to Potential Witness, April 12, 1993. 1338. See FD-302 Interview of Brian Callihan, August 6, 1993, at 2; Declaration of Brian Callihan, June 5, 1993, at 1-2. It does not appear that anyone from the FBI ever called Peterson's office to determine a specific date for Miller to appear. 1339. See Declaration of Brian Callahan, June 5, 1993, at 2- 4. 1340. CDRU Discovery Request from Unit Chief of Civil Litigation Unit to Ms. Keeley, Unit Chief of CDRU, April 30, 1993. 1341. Id. 1342. Id. 1343. FD-302 Interview of Monique Wilson, November 5, at 1- 2. 1344. Callihan FD-302, August 6, 1993, at 2-3; Callihan FD- 302, November 5, 1993, at 1-2. 1345. Callihan FD-302, November 5, 1993, at 1. No one has ever been able to determine exactly when the package was forwarded to the FBI mail room. The date-stamped file copy of the May 21, 1993 cover letter has never been located. Although no one could ever find any indication that the package had been sent by forth class mail, the assumption by the Information Services Unit, which operates the FBI mail room, was that this was the manner in which the package was sent because of its weight and the absence of mailing instructions. See Declaration of Brian Callihan, June 5, 1993, at 4; FD-302 Interview of Joseph R. Davis, August 10, 1993, at 2-4. 1346. Affidavit of Roberta Cruser, June 4, 1993. 1347. Letter from Brian Callihan to Maurice Ellsworth, May 31, 1993. 1348. See discussion in Section IV(O) which discusses the problems that occurred at trial because of the untimely disclosure by the government of discoverable information. 1349. Howen Interview, Tape 10, at 45, 59. 1350. The USAO had produced most of the sworn statements and the FD-302 statements in this package in October and November 1992. The remaining statements had been produced on April 7, 1993. See Memorandum from Richard Jesinger and Daniel Dzwilewski to Robert Walsh, October 17, 1993. 1351. Trial Transcript, June 4, 1993. 1352. Callihan FD-302, August 6, 1993, at 3. 1353. Davis FD-302, at 2. Davis was unable to recall the name of the Senior Supervisory Resident Agent but Dillon held that position at the time and others, such as Brian Callihan recall that Davis told them that he had discussed the matter with Dillon. 1354. Id. 1355. Callihan FD-302, August 6, 193, at 3; Davis FD-302, at 3. 1356. Callihan FD-302, August 6, 1993, at 3; Davis FD-302, at 3-4, On June 5, 1993, Clawson prepared a note to Davis explaining how they received the subpoena. He opined that the response to the subpoena was not delinquent because Miller has not yet been called to testify. However, Clawson informed Davis that the USAO had made two previous requests for all FBI documents pertaining to the Weaver case but that these requests had been handled by the Resident Agency in Boise and the Criminal Investigative explained to Davis that the USAO believed that the recently produced interview notes should have been produced earlier in response to the discovery requests. See Davis Fd-302, at 4; Note dated June 5, 1993, from Clawson to Davis. 1357. Affidavit of Brian Callihan, Jun 5, 1993 1358. Howen Interview, Tape 10, at 55. 1359 Trial Transcript, June 8, 1992, at 84. 1360 Id., June 9, 1993, at 60-61. 1361 Order in the United States v. Weaver, No. CR 92-080-N- EJL, filed October 26, 1993, at 2-13 (Appendix at 16). 1362 Glenn told investigators that he believed to the extent that any controversies arose over certain documents such as the shooting incident report, he attributed them to differences between the FBI Headquarters and the USAO. With regard to those controversial documents that were controlled by FBI Headquarters, Glenn stated that he was simply a conduit transmitting the request and had no role in the decision of whether the document would be produced in discovery. Glenn Sworn Statement, at 35-37. 1363 Howen attributed the resistance to producing these documents to FBI Headquarters rather than the local FBI office. Howen Interview, Tape 9, at 51. Lindquist opined that the FBI case agents were very diligent and helpful in assisting with discovery except when they were under contrary instructions from superiors. Lindquist interview, Tape 5, at 31. 1364 Special Agent Rampton believed that there was an unnecessary delay in producing the shooting incident report and the operations plan. He could understand the need of the USAO for these documents and did not believe that there was anything in the documents harmful to FBI interests. Rampton FD-302, at 36. Although he did not think that the conclusions of the report were relevant to the issues in the Weaver prosecution, Davis conceded that the factual content of the report probably rendered it subject to discovery. Davis FD-302, at 5. Lindquist recalled that Rampton, Venkus and Dillon agreed with him that there was no reason not to produce the report. Lindquist believed that they had recommended to FBI Headquarters that the report be released. However, they indicated to Lindquist that they were encountering significant resistance from FBI Headquarters regarding the production of the report. Lindquist Interview, Tape 5, at 4-5. 1365 Lindquist Interview, Tape 5, at 15; Ellsworth Interview, Tape 5, at 27. 1366 FBI officials were consistently positive in their comments concerning the handling of the discovery disputes by the Criminal Division of DOJ. [GARRITY] 1367 Reynolds FD-302, August 11, 1993, at 7. 1368 [GARRITY] 1369 TVCS Section Chief Reynolds believed that the USAO was never given the opportunity to review the complete field office file. Reynolds FD-302, October 6, 1995, at 6. 1370 Howen was never allowed to review the FBI headquarters files on the Weaver matter and told investigators that he is still not confident that all relevant materials were produced. Howen Interview, Tape 10, at 10-11; accord, Ellsworth Interview, Tape 5, at 29-30. 1371 Lindquist Interview, Tape 5, at 16-17. Defense Counsel Nevin told investigators that he did not have nay significant criticism with regard to the actions of the USAO and that in general, with the exception of laboratory related materials, he would not quarrel with the time that it took to produce the discovery materials. Memorandum from Paula Wolff to Barbara Berran on Interview of David Nevin, December 17, 1993. 1372 Lindquist Interview, Tape 5, at 16-17. 1373 Ellsworth Interview, Tape 5, at 28-29. 1374 See discussion in Section IV(N) concerning the history of the problems between the USAO and the FBI. 1375 Dillon FD-302, at 9. 1376 Howen stated that on a number of occasions that the USAO made both written and oral requests of the FBI to produce all materials having any relevance to the Weaver matter. These requests were made to the FBI office in Boise and presumably relayed to FBI Headquarters. Howen said that they also told members of the Terrorism and Violent Crime Section of DOJ that they suspected that there was some type of file on the shooting incident report and that they wanted access to everything. Howen Interview, Tape 10, at 4-6. 1377 Ellsworth Interview, Tape 5, at 39-40. 1378 Dillon FD-302, at 9-10. Joseph Davis, Assistant Director of LCD also appears to assign responsibility for the problem to Dillon. Davis believes that the primary responsibility for responding to criminal discovery in the FBI usually rests with the office of origin and, in those situation when responsive documents are located elsewhere, it is the responsibility of the office of origin "to set appropriate leads to insure their timely production." Davis FD-302, at 5-6. 1379 Howen Interview, Tape 10, at 55-56; accord, Ellsworth Interview, Tape 5, at 37. 1380 This document consisted of 15 pages of personal notes taken by Gale Evans during the "after action" conference held on November 2, 1992. The after action conference examined a wide range of command and control issues that arose with regard to the response of the FBI to the crisis at Ruby Ridge. Included as topics for discussion were deployment problems, tactical issues and negotiation issues. Gale Evans FD-302, at 3-4. As a precautionary measure, we requested the FBI to search its files again at Headquarters and at the field offices involved in responding to the Weaver crisis to determine if any additional responsive documents existed. This search resulted in the location of one document that had not been previously identified and produced. However, this document did not contain any information significant to the issues examined in this investigation. 1381 See FD-302 Interview of Austin Anderson, October 7, 1993, at 3. 1382 [GARRITY] 1383 Howen stated that when he viewed and finally received the shooting incident report he never thought to ask the FBI for material in the 1-A file. He told investigators that because it was an internal investigation, he did not know if the 1-A procedure was being followed. Howen Interview, Tape 9, at 21. 1384 The Inspection Division of the FBI is responsible for conducting a shooting incident review when requested by another division. When the review is completed, the report is sent to the requesting division. According to Paul Philip, the Inspector Deputy Assistant Director of the FBI Inspection Division, once the Inspection Division forwards this report to the requesting division, that division becomes the owner of the report and has the right to decide whether the report should be released. FD-302 Interview of Paul R. Philip, November 3, 1993, at 1-2. 1385 See FD-302 Interview of David G. Binney, October 19, 1993, at 1-2. 1386 Gale Evans stated that CID does not normally become involved in discovery in criminal cases. Evans FD-302, at 12. 1387 Thomas Clawson, Unit Chief of the Civil Litigation Unit I of the Legal Counsel Division, was certain that LCD was not involved in responding to the discovery request in the Weaver case. FD-302 Interview of Thomas Clawson, August 12, 1992, at 1. Similarly, Austin Anderson, Unit Chief of the Investigative Law Unit of the LCD, did not recall ever participating in any discussions concerning criminal discovery matters in the Weaver case. He told investigators that Gale Evans, the Unit Chief of the VCMO Unit, confirmed that he had no notes or records indicating that Anderson had discussed any discovery issues with him. Anderson FD-302, October 7, 1993, at 2-3; Gale Evans FD-302, at 12. 1388 [GARRITY] 1389 Callihan FD-302, August 6, 1993, at 2. 1390 Lindquist stated that his initial reaction to the late production of the shooting incident report was that "somebody was intentionally trying to impede the process." Lindquist Interview, Tape 5, at 21. We found no evidence to support this suspicion. 1391 See Section IV(O) for a discussion of the response of the FBI to the subpoenas for manual provisions and personnel files. Joseph Davis recalls one phone call with Ellsworth in which Ellsworth informed him of the defense request for the manual provisions as well as the shooting incident report. Ellsworth was unable to tell Davis when these requests were made or when they were due. As a result of this conversation, Davis sent an electronic mail message to Beau McFarland around April 26, 1993 requesting him to investigate the matter and to make sure that FBI was responding appropriately. Davis FD-302, at 5-6. However, in that message, Davis wrote only about the subpoena for the manual provisions; no mention was made of the subpoena for the shooting incident report. Memorandum from Davis to McFarland, April 27, 1993. 1392 See discussion in note 1278 _________________________________________________________________ IV. SPECIFIC ISSUES INVESTIGATED N. ALLEGED PROBLEMS WITH THE PARTICIPATION OF THE FBI IN CASE PREPARATION AND ITS RELATIONSHIP WITH OTHER MEMBERS OF THE TRIAL PREPARATION TEAM 1. INTRODUCTION One of the issues that arose as the various law enforcement entities converges at Ruby Ridge was which agency had the primary responsibility for planning, organizing and coordinating the activities of law enforcement personnel. It was decided early in the crisis that the FBI would have the lead role in the operations at Ruby Ridge. However, after Weaver and Harris surrendered, the focus shifted from crisis resolution to trials preparation and the U.S. Attorney's Office in Boise ("USAO") assumed the lead role. Initially, the FBI believed that it was to be the sole agency assisting the USAO in trial preparation. Later, for reasons that the USAO and the FBI dispute, agents from the U.S. Marshals Service and the Bureau of Alcohol, Tobacco and Firearms ("BATF") were assigned by their respective agencies to assist the USAO. The FBI believed that the addition of these agents was unnecessary, improper and was accomplished in a less than forthright manner by the USAO. The arrival of the marshals and the BATF agents coupled with disagreements over how witness interviews in Iowa were to be conducted worsened the already fragile working relationship between the FBI and the USAO. Thereafter, various actions and attitudes of the investigative team created significant discord between the FBI and the other team members. In addition, the USAO alleges that their efforts to prepare their case for trial were also hampered by the failure of officials at FBI Headquarters to make themselves available for interviews. 2. STATEMENT OF FACTS a. Defining the Structure of the Trial Team and the Role and Responsibilities of the Individual Members (1) The Lead Agency Concept and the Initial Disagreement Regarding the Interviewing of Witnesses in Iowa As the various law enforcement agencies arrived at Ruby Ridge on August 21 and August 22, 1992, it quickly became evident that there was a need for one agency to assume the leadership role during the crisis. Because the assault of a federal officer charge fell within the jurisdiction of the FBI, it was decided that it was appropriate for the FBI to perform this role. Once the crisis was over, and the focus had shifted to trial preparation, Assistant U.S. Attorney Howen believed that the leadership role was transferred from the FBI to the USAO. [FN1393] Although Howen and Assistant U.S. Attorney Lindquist would entertain suggestions from the FBI, they viewed themselves as the "captains' responsible for directing case preparation and any additional investigative activities that were necessary. [FN1394] From the outset, tensions existed between the FBI and the USAO. A number of early incidents intensified the growing animosity between the two government entities. One of these incidents centered around the request of the USAO to transport the birthing shed on the Weaver property from Ruby Ridge to Boise. The USAO argued that it was important to have the shed accessible to permit the testing and use of the shed at trial. [FN1395] The FBI disagreed and maintained that the shed was not necessary and that the transportation and storage costs were too high. The FBI ultimately agreed to transport the shed to Boise. Later, when it became apparent that the USAO would not be using the shed, the FBI questioned whether the initial request to transport the shed had been well considered. [FN1395] Another issue that created controversy concerned the conducting of witness interviews in Iowa. Howen had informed the FBI case agents that to support the conspiracy theory it was important to interview witnesses in Iowa who knew Weaver before he moved to Idaho. Howen and Lindquist wanted one of the case agents to conduct these interviews since they believed that they best understood the facts and nuances of the case. [FN1397] [GARRITY] [FN1398] However, the FBI informed the USAO that a [GARRITY] case agent could be sent to handle an important interview or a followup interview. [FN1399] At a September 28, 1992 meeting, Special Agents Venkus and Rampton advised Howen that they were going to send out leads to Iowa. According to Venkus, Howen expressed no opposition to this plan. [FN1400] On the next day, Howen gave Venkus a list of witnessesb for the FBI to interview [FN1401] and noted on the list that he wanted "clean 302s." [FN1402] Soon after Venkus sent out the leads, Howen told him that he had misunderstood his instructions and that he had just wanted to have the addresses of the prospective witnesses updated. [FN1403] Ellsworth protested this action to Special Agent in Charge Eugene Glenn and argued that the agents had only been instructed to conduct "background leads" which consisted of identifying [GARRITY] individuals and places of residence. [FN1404] Howen, who did not recall instructing Rampton to send out the leads, explained to Rampton that he did not want the leads conducting the interviews because of the animosity existing between the people being interviewed -- many of whom were friends or supporters of the Weavers -- and the FBI because he wanted to avoid creating a paper trail of FD-302's which would reveal his case preparation strategy to the defense. He told Rampton that if the FBI were going to conduct the interviews, he wanted the case agents who were familiar with the case to handle it. [FN1405] Lindquist instructed Dillon to stop all of these interviews and that if he failed to do so, the interviews would have to be redone. [FN1406] At some point during this time period, Howen informed Rampton that he wanted to participate in the Iowa interviews and that he would not have to generate interview reports. [FN1407] Rampton told Howen that Iowa FBI agents would be conducting these interviews. One week later, Lindquist informed Rampton that the Marshals Service had offered them two marshals to assist with the case and that they had accepted the offer. [FN1408] A third dispute between the USAO and the FBI involved [G.J.] Lindquist explained that it was an essential part of the government's case to show what had occurred at Ruby Ridge on August 22 as well as on August 21. Part of this proof consisted of [G.J.] [FN1409] [FN1410] [G.J.] [FN1411] [G.J.] [FN1412] [G.J.] [FN1413] [GARRITY] [GARRITY] [G.J.] [GARRITY] [FN1415] [GARRITY] [FN1416] [FN1417] [G.J.] [FN1418] Howen viewed this incident as the "defining moment" when the working relationship between the USAO and the FBI on the Weaver case "was over." [FN1419] (2) The Decision to Assign Members of the Marshals Service and BATF to Assist in Case Preparation In late October 1992, Deputy Marshals Robert Masaitis and John Stafford were assigned to assist the USAO in the preparation of the Weaver case for trial. At around the same time, BATF also assigned two special agents -- Herbert Byerly and Jane Hefner [FN1420]-- to assist the USAO. Various accounts were provided to investigators as to who was responsible for assigning the marshals to assist in the preparation of the case. Some individuals, including FBI members, believe that the U.S. Attorney or someone in that office had made the request [FN1421] while others insist that Director Henry Hudson volunteered the services of the marshals. Hudson told us that he assigned the marshals to the case sometime in October 1992 after he had a telephone discussion with Ellsworth during which Ellsworth complained about the FBI. [FN1422] However, according to Ellsworth and Howen, Hudson offered the assistance of the marshals and they accepted the offer. [FN1423] Lindquist remembers the incident differently and believes that he first presented the proposal to Tony Perez and that the final acceptance of his proposal occurred during an October 1992 meeting with Hudson. [FN1424] In addition to who precipitated the inclusion of the Marshals Service and the BATF in the case of preparation, was the issue of why it was necessary to include them. The perception among some was that the USAO was unhappy with the performance and attitude of the FBI including their refusal to have case agents cover leads [FN1425] and their failure to accomplish the tasks assigned them. [FN1426] Howen insisted that the decision to bring the marshals into the case had nothing to do with any disagreement with the FBI but rather was because the USAO needed the help. [FN1427] Ellsworth, who maintained that he had always envisioned the BATF and the Marshals Service as having a role in the Weaver case, agreed that the decision was influenced by the need for more assistance in preparing the case. He was also concerned that the FBI decision to send leads to conduct out of state interviews indicated that they were not devoting enough resources to the matter. He was particularly concerned because the agents, in contrast to the marshals, were not based in Boise but rather hundreds of miles away in Northern Idaho. Furthermore, the availability of Venkus was potentially threatened by the demands created by the illness of his mother.[FN1428] Lindquist stated that in addition to needing more help, [FN1429] the presence of the marshals and the BATF agents demonstrated to the jury a united effort by the government.[FN1430] Rampton disagreed that the USAO needed the help and maintained that there was insufficient work for all of these agents. [FN1431] The FBI was also displeased by the failure of the USAO to consult with them and to inform them of the decision until after the agents had begun working in Boise. Ellsworth could not recall how the FBI was informed about the addition of the marshals. He argued that the marshals were always a part of the case and, indeed, their involvement had preceded that of the FBI. He believed that the only change was that two marshals were being brought in to substitute for Cooper and Hunt who had an obvious conflict since they were witnesses to the events at issue. [FN1432] Howen did not have a clear recollection of how he informed Venkus and Rampton but suspected it was about the same time that he told them that they were going to be working together as a team with the USAO as the chief decision maker. [FN1433] Lindquist believes that he told Venkus and Rampton that he had asked the Marshals Service about providing marshals to assist in the case preparation and that they were being made available. [FN1434] When Rampton first learned that the marshals would be working on the case he expressed his concern to Lindquist. According to Rampton, Lindquist responded that the decision had already been made and that it was not a Bureau decision. Later Rampton learned that the marshals had been in Boise for a week and had been conferring with the Howen and Lindquist at the time that he first learned that they would be working on the case. [FN1435] Dillon said that when he called Lindquist and voiced his displeasure, Lindquist responded that he did not have to tell Dillon anything and that "you guys can't work with anyone." [FN1436] Thereafter, Glenn sent Ellsworth a letter protesting the bringing in of the marshals to which Ellsworth responded. [FN1437] Rampton stated that BATF Agent Byerly was also brought into the investigation without the knowledge of the FBI. [FN1438] With the addition of the marshals and BATF agents to the team, issues also arose as to what tasks these agents would be performing and to whom they would be reporting. Some in the FBI initially understood that these agents would be assisting in case preparation but would not be conducting any investigatory activities. [FN1439] According to Hudson, Ellsworth told him that he wanted the deputy marshals to participate in conducting the investigation. Hudson expressed reservations about this plan because he did not believe that any statutory authority existed for this role and he was concerned that Ellsworth might use the deputy marshals as leverage against the FBI. To guard against such a result, Hudson had Duke Smith work out the details with Mike Dillon with the understanding that the marshals were to support the FBI but receive their instructions from the USAO. [FN1440] Deputy Marshal Stafford had a somewhat different understanding. He believed that his responsibilities would include conducting interviews, locating witnesses and preparing backgrounds of the defendants. [FN1441] Rampton said that Lindquist told him that the marshals would do whatever came up in the investigation. [FN1442] Ellsworth agreed with this statement and acknowledged that he had initially envisioned that the marshals might be conducting interviews. [FN1443] The FBI officials always considered the Bureau to be the lead investigative agency. Accordingly, it believed that the other agents would report to and through them. For example, it was Rampton's initial understanding that the Marshals Service had assured Dillon that the marshals would be assigned to the FBI. Rampton said this plan was never followed. [FN1444] Dillon told Venkus that FBI Headquarters had confirmed that the marshals were to report to the FBI and were not to conduct any investigation or interviews without the approval and knowledge of the FBI. [FN1443] When the FBI realized that the USAO was adamant that the FBI would not be the lead agency and that the other agents would not report through it, the FBI was outraged and responded that it was "their investigation" and that "they would proceed as they deemed necessary." [FN1446] Chief Deputy Marshal Ronald Evans originally understood that Masaitis and Stafford would be assisting FBI case agents Venkus and Rampton. [FN1447] However, Hudson stated that while the marshals would be assisting the efforts of the FBI he intended that they would receive their orders from the USAO. [FN1448] Stafford was told by his superiors that he would be working as a team member with the FBI as opposed to working for the FBI. [FN1449] Similarly, Masaitis was told that he was being assigned to assist the USAO and was never told that he would be working under FBI direction. [FN1450] Howen and Lindquist always intended the agents to work on teams as equal partners and to report directly to them not through the FBI. [FN1451] The plan was for each of the agencies to be responsible for three counts of the indictment as well as some of the overt acts of the conspiracy. [FN1452] Howen anticipated that the Marshals Service and the BATF agents would assist in case preparation as well as perform some investigatory tasks. [FN1453] However, Howen stated that the FBI resisted this approach and wanted to be a "buffer" between the USAO and the other agencies. [FN1454] Ellsworth did not have a clear recollection on this issue but thought that there may have been an initial understanding that the FBI case agents would be the intermediary between the USAO and the marshals. [FN1455] The FBI also questioned the jurisdictional authority of the Marshals Service to be investigating certain counts of the indictment. Glenn maintained that the FBI had primary jurisdiction over all counts in the indictment because the assault on a federal officer charges were the main offenses alleged in the indictment and the other charges were "lesser included offenses." In this regard, Glenn argued that "[t]he FBI has always retained primary jurisdiction when other crimes have arisen out of a substantive violation over which the FBI has jurisdiction" and that [i]t would not be cost effective to include numerous agencies whenever an investigation results in lesser included offenses." [FN1456] Ellsworth noted in his response to Glenn that he was correct that the FBI had primary investigative jurisdiction over the federal officer assault count but reminded Glenn that the FBI did not have exclusive jurisdiction over all counts in the indictment. Ellsworth accused Glenn of being myopic when he advocated that the FBI had exclusive jurisdiction since the other agencies had a vested interest in the case and should be permitted to participate "on the same footing as the Bureau.' [FN1457] (3) The First Team Meeting Howen and Lindquist convened the first team meeting in Post Falls, Idaho on October 30, 1992. [FN1458] The parties memories differ somewhat as to the tone of this first meeting and what was discussed. Howen and BATF Agent Byerly recalled it as an organizational meeting where the team approach was discussed and responsibilities were assigned for the various counts of the indictment and the overt acts of the conspiracy. [FN1459] Byerly thought that all participants were enthusiastic at this first meeting. [FN1460] Deputy Marshal Stafford had a different impression. He recalled FBI agents Venkus and Rampton as being "very formal and chilly." [FN1461] Deputy Marshal Masaitis sensed that Rampton and Venkus were unhappy about the Marshals Service being involved in the case. [FN1462] Venkus told investigators that it was not until he arrived at the meeting that he realized that BATF Agent Byerly would also be assisting in the case preparation. [FN1463] Among the topics discussed at the first meeting were the organization of the case preparation effort and the responsibilities of the individual team members. Howen and Lindquist informed the agents that each agency would be responsible for three counts of the indictment and for some of the overt acts alleged in the conspiracy. The BATF was responsible for the original gun charges; the Marshals Service was responsible for the failure to appear charge; and the FBI was responsible for the assault of a federal officer charge. The agents were to work in teams and to report to Howen or Lindquist. [FN1464] Another subject discussed was the conducting of interviews in Iowa. Rampton recalled that Howen indicated the need to do additional interviews in order to develop information that could be presented to the grand jury. Rampton interpreted these comments as a request and sent a teletype asking that leads be sent. b. Specific Problems in Case Preparation Interviews Conducted by the Marshals Service and BATF Agents During the pretrial period, members of the investigative team had several discussions concerning the conducting of out of state interviews and whether these interviews should be documented. Lindquist recalled Howen expressing concern that if these interviews were documented that they would have to be produced under the open discovery policy and such a disclosure would alert the defense to the manner in which the prosecution was preparing its case. According to Lindquist, Howen then asked the FBI case agents if they could conduct an inquiry without generating a report and then review the substance of the interview with him to determine if any exculpatory or otherwise discoverable information had been learned. Lindquist understood that if such information had been discovered Howen intended to have a report written and to produce the information to the defense. Lindquist recalled that Rampton and Venkus stated that such an approach was "probably" not a bad idea but that Bureau policy required them to generate a 302. At that point, Stafford and Masaitis stated that they were not mandated to create such forms and would be able to proceed as Howen had proposed. [FN1465] Lindquist had no problem with the approach because he was convinced of Howen's integrity and knew that if any Brady material were uncovered that Howen would produce it. [FN1466] At some point, Masaitis remembered that after FBI agents had conducted some interviews in Iowa and obtained negative results, the USAO suggested that Stafford interview these witnesses again. The FBI opposed the suggestion. [FN1467] Stafford suggested at the team meeting that he "conduct [the] investigation like cases [he] had worked as a pre trial investigative arm of the United States Attorney's Office in the past." Stafford said he tried "to prepare witnesses to talk to the U.S. Attorney prior to trial and not write reports on it.~ According to Stafford, it is the normal practice of the U.S. Marshal`Marshal's Service when "doing a case" to document interviews and information acquired for lead purposes. However, if they are assisting the U.S. Attorney's Office in preparing a case for trial or the grand jury, that form is not used. [FN1468] Stafford claimed that Howen and Lindquist reacted favorably to this suggestion. [FN1469] He does not recall them stating that it would be "a good idea not to produce paper." [FN1470] Venkus recalled that in one team meeting Stafford told the participants that he could conduct an interview without creating discoverable documentation. In response, Venkus advised Stafford that this was contrary to FBI policy and that he disagreed with the suggestion. Venkus thought that Stafford prided himself on not having to create paper like the FBI. fn 1471 Rampton thought that the documentation issue was first raised by Howen and Lindquist. He stated that they wanted investigation done, especially in Iowa, and that they did not want any interview documentation created so as to avoid having to produce it in discovery. Because of the FBI's practice of documenting all interviews with a 302, Rampton stated that Howen and Lindquist decided that the marshals would do the Iowa interview since they had "volunteered" not to produce paper on the interview. Rampton expressed concern about this plan to Dillon, as well as to Howen and Lindquist. Thereafter, Howen and Lindquist qualified their instructions to the FBI and said that they should continue to document their interviews as they had in the past. [FN1472] Rampton had suggested tot Howen that FBI agents in Iowa do the interviews and then, if necessary, Howen, who wanted to participate in the interviews, could do a followup. According to Rampton, Howen and Lindquist wanted the marshals to do the Iowa interviews and Rampton disagreed, stating that those interviews were an FBI function. [FN1473] Howen stated that when it became apparent to him that the FBI would not allow its case agents to conduct the out of state interviews, he thought that perhaps the marshals could do it. He then asked Stafford if he could conduct the interviews and whether he was required to prepare written documentation. Stafford told Howen that he could conduct the interviews and that he was not required to document it. [FN1474] Thereafter, Howen had the marshals and the BATF agent serve subpoenas and conduct witness interviews. Stafford said that Howen and Lindquist asked him to serve approximately 100 subpoenas and to conduct interviews of individuals in Iowa, Northern Idaho, Oregon, Spokane, Washington and Denver, Colorado. [FN1475] Most of these interviews were conducted in Iowa. Stafford thought that the FBI did not want to participate in these interviews because they had other things to do. However, he did not know whether the FBI agents had ever been asked to conduct the interviews. [FN1476] He did believe that the FBI agents knew what he would be doing since before he left to conduct the Iowa interviews he informed Mike Dillon about his anticipated activities. [FN1477] While serving subpoenas, Stafford said he would conduct interview of those individuals being served. One such interview was of Howard Brashure in Iowa who was developed as an informant/witness. [FN1478] Stafford explained that because this was a high profile case, identifying information about the witness was not placed on the subpoena but rather on a separate sheet of paper attached to the subpoena. [FN1479] Stafford wrote down on this sheet any information that he received during the interview that he judged to be important as well as providing his impression of the person as a witness. Thereafter, he mailed the sheets back to the U.S. Attorney's Office. Stafford did not know whether any of these sheets were ever produced to the defense although he said he was not aware of any exculpatory material not being turned over to the defense. [FN1480] A review of the discovery records in the Weaver case revealed that other than the cryptic notes on some of the subpoena cover sheets, Stafford did not document these interviews and that these sheets were not produced in discovery. Howen said that Stafford knew whom to interview based on the subpoenas that were given to him. According to Howen, the goal was to ask questions that would determine whether a person should or should not be a witness. [FN1481] Howen told investigators that he did not instruct Stafford to as specific questions of the subpoenaed parties but rather informed him of general subject areas that were important to case development. These areas included: the Weavers' activities primarily during the 1983-85 time period; any information about Weaver's alleged plan to build a 300 yard kill zone; and identifying any other witnesses who might be helpful and Howen might want to interview personally. [FN1482] When Stafford returned from serving the subpoenas he would brief Howen on the information that he had learned. [FN1483] Howen insisted that he never instructed Stafford no to create documentation but rather used Stafford because he understood that it was the policy of the Marshals Service not to create documentation for this type of interview. fn 1484 Howen never discussed with Stafford what constituted exculpatory information nor did Stafford ever raise the issue. Howen assumed that Stafford understood the nature of exculpatory information based upon his experience in the Marshals Service. Howen never remembered Stafford conveying to him any exculpatory information from the interviews conducted in Iowa. [FN1485] Lindquist stated that Howen was primarily responsible for giving Stafford any instructions regarding the serving of the subpoenas and the interview questions to be asked. [FN1486] To the extent that Lindquist gave Stafford instructions, they were general in nature and intended to obtain information that would reveal the type of person that Weaver was. [FN1487] Lindquist did not recall any specific instructions given concerning the documentation of these interviews although he assumed that the documentation issue had been resolved at the earlier meeting. [FN1488] It was not until before trial that Lindquist learned who had been interviewed in Iowa. [FN1489] BATF Agent Byerly did not conduct any interviews in Iowa. [FN1490] However, he did participate with Stafford, BATF Agent Gunderson, Deputy Marshal Hunt and Sheriff Whittaker in serving subpoenas on 20-40 people in Northern Idaho [FN1491] who were neighbors of the Weavers and in conducting "related interviews." [FN1492] Byerly could not recall Howen or Lindquist requesting them to conduct interviews without documenting them. [FN1493] With regard to the interviews that Byerly conducted, he told investigators that he told the witness "to tell the truth and cooperate with both the prosecution and the defense." [FN1494] Of the conversations that he had with witnesses, Byerly said he prepared approximately five or six interview reports. His criterion for whether an interview report was necessary was whether the new information would help the prosecution or the defense. [FN1495] Masaitis did not conduct any interviews in Iowa but did conduct several interviews while assisting the USAO. Because none of these interviews produced any positive information, Masaitis did not document them. Masaitis said it is his practice to only document an interview if significant information is developed. He denied that the USAO ever instructed him not to document the interviews. [FN1496] Masaitis never considered his actions "as conducting investigation." [FN1497] Rampton and Venkus said that they were never informed about when the Iowa interviews were conducted or about the results of these interviews. Indeed, it was not until later that the FBI case agents learned of them. [FN1498] Glenn did not learn about these interviews until after the trial when the case agents told him that some of these interviews had been conducted without their knowledge. [FN1499] Rampton said that the Iowa interviews were done primarily to support the conspiracy count but also developed information to support other counts. [FN1500] He did not know whether these interviews produced any exculpatory information. [FN1501] There is no record of what the Iowa witnesses told Stafford. Howen insisted that if these interviews had produced exculpatory information he would have produced it to the defense. [FN1502] To the extent that he was informed of the information, Lindquist never learned of any Brady information being disclosed in these interviews. [FN1503] Although Venkus did not know the specifics of what Stafford had learned in the interviews, he suspected that some of it was of significance. For example, he recalled hearing Stafford discussing "voluminous" information that a witness had given him about the John Todd tapes and the concept of "Illuminating." Venkus believed that Stafford viewed the Todd tapes as a critical link in the proof required to show the origins of Weaver's alleged conspiracy. [FN1504] (2) Acoustical Test The marshals involved in the August 21, 1992 shooting at Ruby Ridge reported receiving a hundred or more incoming rounds. However, investigators recovered far fewer bulled casings. Some theorized that echoes may have caused it to sound as if more rounds had been fired. Another important issues in the case was who fired the first shot. Deputy Marshal Norris had reported hearing a shot that sounded like it came from the type of gun that Roderick and Degan were carrying. This conflicted with Cooper's version of events which was that Harris had fired the first shot. Thereafter, the USAO and members of the investigative team discussed the need to conduct an acoustical test to explain these arguably conflicting findings. [FN1505] Lindquist believed that he first identified the need to consider whether an acoustical test should be conducted. [FN1506] He recalled discussing the issue and that he and Rampton took some steps to determine if there was an expert at the FBI that would address the issue. At some point, Lindquist recalled discussing the issue with someone and the FBI laboratory. He remembered that this individual thought that it would be difficult to control the environment sufficiently so as to be confident that the were duplicating the acoustical reality as it existed on August 21, 1992. [FN1507] Lindquist recalled that he was not completely satisfied with the response given by the individual from the FBI lab and had the impression that the individual had not given adequate consideration to his questions. Soon thereafter, Lindquist spoke with a federal prosecutor in Los Angeles who confirmed that it was difficult to control all of the factors so as to be comfortable with the accuracy of an acoustical test. [FN1508] Thereafter, Lindquist suggested to a team member that when they accompanied Lucian Haag to Ruby Ridge to work on the shooting reconstruction that they might want to fire a few rounds to see what they heard. Thereafter, he understood that this was done and that those present could reach no conclusions as to the effect of echoes or whether it was possible to distinguish the weapons being fired. fn 1509 Rampton confirmed that on approximately October 21, 1992, he had discussed with Lindquist the need to have and acoustical test conducted to determine what echoes or reverberations were caused by the firing of weapons like those involved in the August 21st shootings. Thereafter, Rampton communicated with the FBI Laboratory about having the test conducted. [FN1510] Following this initial contact, Rampton and Lindquist had several phone conversations with Supervisory Special Agent Bruce Koenig who was assigned to the FBI's Engineering Research Facility in Quantico, Virginia, about the feasibility of conducting an acoustical analysis of the gunshots fired at the top of the mountain at Ruby Ridge. Koenig understood that the Assistant U.S. Attorney with whom he spoke was anxious to determine if echoes could have accounted for the difference between the number of shots heard by the marshals and the number of casings found. He told the attorney that certain structures such as cliffs would cause echoes and recommended positioning listeners at the various locations where the marshals reported being and then firing multiple shots in various directions and from various locations to listen to the effect. Koenig told the attorney that he was willing to travel to Ruby Ridge and conduct the test firings. Indeed, arrangements were made for Koenig and his team to fly to Idaho but at the last minute either Rampton or the attorney contacted him and told him that the trip was unnecessary because they had conducted the tests and no echoes were heard. [FN1511] Masaitis recalled learning that the FBI had expressed some resistance to conducting the test. The other team members then explored the option of hiring an expert to conduct the test but learned that this option would be too costly. At that point, they decided to conduct their own informal experiment. [FN1512] At the end of October, Howen, Stafford, Masaitis, Hunt and Bruce Whittaker from the Boundary County Sheriff Department travelled to Ruby Ridge to participate in an acoustical test which consisted of firing weapons similar to those belonging to the marshals involved in the August 21st shooting. Stafford believes that Venkus and Rampton were asked to accompany the group but did not do so. [FN1513] Once everyone assumed their positions, Masaitis fired some rounds from the rock outcropping adjacent to the Weaver house while Hunt was down by the & areas. fn 1514 Shots were also fired from the & and the area where Sammy started his retreat back to the cabin. [FN1515] Howen could not recall if the marshals present made any comments about how the shots sounded. [FN1516] Although Masaitis could not hear echoes because he was firing the gun, he recalled that someone had stated that they had heard echoes. [FN1517] All parties involved in this test stated that no record, either audio or written, was produced. [FN1518] At the initial team meeting on October 30, 1992, Lindquist announced that the test had been completed and that the FBI laboratory did not need to conduct the examination.[FN1519] He was not aware that at the time Rampton was still in the process of locating an FBI expert to conduct an acoustical test. [FN1520] Rampton, who was informed of this acoustical experiment after it had been completed, was surprised by the unscientific methodology used. [FN1521] Howen explained that he decided not to pursue an expert opinion since he questioned whether an expert would be able to provide an accurate opinion since any test that he would conduct would be after the leaves had fallen from the deciduous trees thus rendering the conditions different from those present at Ruby Ridge on August 21, 1992. [FN1522] The USAO never informed defense counsel about this experiment. [FN1523] Lindquist explained that he did not think this rudimentary experiment, which used neither an expert or equipment, constituted the type of activity that was required to be disclosed under Fed. R. Crim. P. 16. He characterized their activities as "preliminary" to see if a formal test might be warranted. [FN1524] Howen agreed this was not a test and was something that anyone, including the defense, could have conducted. [FN1525] (3) Cooperation and Trust Among Trial Team Members (i) Historical Problems in the Working Relationship Between the USAO and the FBI Almost everyone questioned about the subject agreed that the USAO and FBI experienced numerous problems in their working relationship during the Weaver prosecution. However, these problems did not originate with the Weaver matter but rather appear to have been developing over a number of years. Indeed, many individuals in the USAO and the FBI agreed that the two agencies had a history of a poor relationship which deteriorated further in the Weaver matter. From the FBI perspective, Supervisory Special Agent Dillon felt that there were numerous incidents which contributed to the problems. He stated that one factor was Howen's personality which because noticeably hostile to the FBI after the prosecution of Randy Baldwin. [FN1526] Dillon characterized Howen's personality after the Baldwin case as being "very pompous and condescending." Problems between Howen and the Fbi continued when the two offices strongly disagreed over whether a local sheriff from Shoshone County should be prosecuted for public corruption. The FBI ultimately presented the case to the Department of Justice for consideration. Thereafter, the Public Integrity Section of the Criminal Division of the Department of Justice prosecuted the matter -- the first trial ended in a hung jury while the second trial ended with an acquittal. According to Dillon, Howen and Ellsworth were extremely upset over the handling of that case. [FN1527] Dillon told investigators that one major criticism that he and others had about Howen was that he would discuss and issue with the FBI or give an instruction to the FBI and then later forget the discussion or having given the instruction. Howen would then portray the FBI action as being contrary to his wishes. Dillon gave as an example a 1990 case involving the arrest of Aryan Nation members with the arrest scenario proposed by the FBI. According to Dillon, Howen repeatedly complained "who was working for who" [FN1528] Special Agent in Charge Glenn reported that the relationship between the USAO and the FBI had been strained for "some time" and "seemed to deteriorate" further with the Weaver prosecution. as examples of prior disagreements between the two offices he pointed to several cases in which the USAO had concluded that a case lacked prosecutive merit but subsequent review by the Department of Justice had concluded otherwise. [FN1529] U.S. Attorney Ellsworth agreed that the relationship between the USAO and Glenn and Dillon had not been the best. He attributed this problem in part to the case involving the Shoshone County Sheriff. Although the two offices managed to work together on matters, Ellsworth stated that the relationship was one characterized "by pleasantries and ... cordiality at a very superficial surface level ... but one where we never really ... were able to ... deal with hard issues. [FN1530] Lindquist was the only member of the USAO and the FBI who stated that there was not a history of problems between the USAO and the FBI. Lindquist insisted that the Weaver case was an anomaly and that before and after the Weaver case he has had a "marvelous relationship" with the FBI. [FN1531] To the extent there existed any bad blood" between the FBI and the USAO he characterized it as "bad blood" between Ellsworth and Dillon who did not get along. [FN1532] this statement seems inconsistent with the statements of other individuals interviewed including Special Agent Wayne F. Manis who provided a 13-page chronology of a problem that he had with Lindquist which indicated Lindquist's knowledge of the animosity between the USAO, especially USA Ellsworth, and Dillon and Glenn that had occurred over the handling of the prosecution of the Shoshone County Sheriff. [FN1533] Officials at FBI headquarters were aware that there were problems in the working relationship between the USAO and the local and district offices of the FBI. This knowledge was based largely on the controversy over the public corruption case involving the Shoshone County Sheriff. [GARRITY] [FN1534] Other than this incident, we found no indication that FBI Headquarters had intervened. (ii) Problems in the Working Relationship Among Team Members From the moment that the USAO and the FBI began working on the Weaver case problems surfaced in their historical hostilities. Much of the difficulty can be traced to their negative perceptions that each agency had developed from working together on prior matters. The USAO found the FBI to be very inflexible and inextricably attached to the idea of being the lead agency and exercising total control over any investigative task in the case. In addition, the prosecutors were critical of the unwillingness of the FBI to become a "team player." Howen noted a significant difference between the attitude of members of the Marshals Service and members of the FBI. He found the former to be open, flexible and willing to assist with case preparation in any way that they wee needed while he found the FBI to be uncooperative and unwilling to volunteer information. [FN1535] Similarly, Lindquist characterized the Marshals Service and BATF as "very open, very cooperative, very accessible" in contrast to the FBI which he characterized as a "brick wall." [FN1536] Ellsworth attributed part of the difficulties between the USAO and the FBI to the FBI mentality that "the FBI way is always right." [FN1537] The FBI case agents found the USAO to be very controlling and unwilling to include them in the case preparation process. In addition, the FBI criticized the prosecutors for being to autocratic, abrasive and confrontational. While preparing the case for trial, there were a number of incidents that contributed to the negative perception that each agency had of the other. For example, early in the case, Lindquist learned that the FBI had issued a directive to the case agents that they were only to take instructions from Ellsworth. This directive also required Howen to transmit in writing to the agents any leads or investigative requests that he wanted pursued. Apparently this directive was the result of several incidents including the inclusion of the marshals on the trial team and the miscommunication concerning the sending of leads to Iowa. Lindquist and Ellsworth were very angered by this directive and contacted the Terrorism and violent Crime Section of the Department of Justice. Lindquist believed that they intervened and had the directive revoked. [FN1538] The USAO was also troubled by the resistance that the FBI showed to the discovery obligations of the prosecution and to the USAO request for expert assistance from the FBI Laboratory. [FN1539] From the FBI perspective, they were quite upset with how the USAO was handling the Weaver prosecution including: the decision to bring the Marshals Service and BATF into the case, the USAO opposition to sending leads to conduct the Iowa interviews, [FN1540] the broad scope of the indictment and the open discovery policy followed by the USAO. Other issues that concerned the FBI included the debate over the need to transport the birthing shed from Ruby Ridge to Boise for use at the trial, criticism voiced by other team members about the FBI crime scene search and the USAO treatment of FBI members. [FN1541] The FBI case agents assigned to the Weaver matter complained that they felt isolated from the activities of the other team members. For example, Rampton complained that he was unaware of the projects on which the marshals were working in part because they were creating no documentation of their activities. [FN1542] In addition, the FBI case agents believed that efforts were taken to exclude them from team meetings and other team activities. Lindquist denied that they intentionally excluded FBI members from meetings or activities but acknowledged that there may have been occasions where teams or subteams met without the other group members. [FN1544] Howen tried to conduct a team meeting every two or three weeks. He insisted that everyone was invited and notified of these meetings to discuss matters on which a particular subteam was working. [FN1545] Both Howen and Lindquist denied ever instructing the marshals or the BATF agents to conduct some type of investigative activity and not inform the FBI about it. [FN1546] Ellsworth suggested that the reason that the FBI agents felt excluded and believed that the marshals had a more active role than they did was because the FBI agents were somewhat physically isolated because they were not always in Boise. [FN1547] In addition to the problems that they attributed to the USAO, the FBI agents also detected hostility and a lack of cooperation from other team members, most notably the marshals. For example, although they made their files available to the other agencies to assist in case preparation, the FBI case agents did no feel that the other agencies reciprocated. 1548 The FBI case agents also recognized that the marshals assigned to the case were sensitive to any remarks or actions by the FBI that seemed to question the truthfulness of statements made by Deputy Marshals Cooper and Roderick. For example, at some point, Venkus and Rampton discussed the possibility that Degan may have been moving as he fired his weapon since the spent cartridges from Degan's gun were spread over 22 feet. This theory was contrary to the marshals' account that Degan had not fired his weapon. When Rampton presented this theory, he recalled Masaitis becoming very upset, stating that he did no have to listen to this and then leaving the discussion. Thereafter, Rampton informed Howen that he was going to send Degan's gun for an ejection pattern test to determine how far the spent shells would be ejected. Rampton insisted that Howen concurred with the plan but later failed to acknowledge his approval thereby making it look as if Rampton had taken this action on his own. [FN1549] Several weeks later, Rampton recalled that Howen met with him and asked if he felt that he could continue as a team member considering the hostility he had created by questioning the veracity of Cooper. Rampton insisted that he was not accusing Cooper of lying but only wanted the team to focus on a possible conflict between the physical evidence and Cooper's statement that Degan had not fired his gun. [FN1550] From the perspective of the marshals, Stafford was troubled by Rampton's questioning of the truthfulness of the Cooper and Roderick statements regarding who fired the first shot. Stafford felt that when Rampton characterized these statements as being "less than truthful" he was suggesting that Cooper and Roderick had "purposely" omitted some information. [FN1551] Another incident that angered the marshals concerned the inaccuracies that appeared in the FBI draft of the Cooper FD- 302. [FN1552] The other team members were aware that the FBI agents were having difficulty integrating into the team and that discord existed between them and the FBI agents. For example, after the first meeting, Stafford perceived that the FBI case agents were not greatly involved in the case and that they did not appear to attend very many of the meetings. [FN1553] He characterized the behavior of the FBI on the case as lacking initiative and response [FN1554] yet he admitted that he had no knowledge of the FBI ever refusing to do an investigative task in this matter. However, he stated that he knew of instances in which work was assigned to FBI agents but was not completed. [FN1555] Another team member, BATF Agent Byerly attributed the discord between the FBI and other team members to "the reluctance by the FBI to attempt techniques beyond the norm," and the resistance of the FBI to release certain documents and information to the USAO. [FN1556] Byerly was never aware of any attempts to exclude a team member from a meeting or to withhold the existence or the results of an investigative activity from another team member. [FN1557] According to Byerly, any disagreements related to issues involving investigative techniques and proposed approaches to supporting the government's case such as the proposed reconstruction of the shooting scene. [FN1558] According to Howen, throughout the case preparation and trial period, issues continually arose that created discord between the FBI and the Marshals Service. In his words, the problem "never got better." [FN1559] Howen took no specific actions to diffuse the hostility other than to try to listen to all sides and allow them equal input into issues. [FN1560] Howen also attributed some of the discord between the FBI and the Marshals Service to an attitude which he believes is pervasive in the FBI which is that they are the premier investigative agency and that the other federal agencies are inferior. There was also a perception among the Marshals Service members of the team that the FBI had made many errors in their handling of the crime scene, including the triangulation issue [FN1561], and that their efforts would have been better if it had been an FBI agent who had been killed. The discovery of a document prepared by the FBI that was highly critical of the Marshals Service actions in the Weaver case further deteriorated the relationship between the case agents and the FBI. [FN1562] Lindquist attributed the disagreements with the FBI to the actions and directives of upper management officials and their failure to communicated with the prosecutors. He believed that the difficulties that they experienced communicating with the decision makers in the FBI were due to the command structure of the FBI and their refusal to communicate with those not at a comparable rank. [FN1563] To the extent that disagreements arose between him and the case agents, they were always able to resolve them except when upper management became involved and issued orders as to the position to take. [FN1564] Lindquist said he believed that the FBI case agents were confronted with the dilemma of wanting to perform their jobs but being required to adhere to the FBI position on issues such as the lead agency concept and the sending out of leads. By the early part of 1993, Lindquist thought that the FBI case agents were working well with the others on preparing the case for trial. [FN1565] (4) Attempts to Interview FBI Officials at Headquarters As part of their case preparations, Howen and Lindquist wanted to interview FBI officials who were involved in the deployment and instruction of the Hostage Rescue Team ("HRT") and in the formulation and modification of the rules of engagement. Among the individuals that they wanted to interview were Danny Coulson, Larry Potts and Mike Kahoe. Howen and Lindquist identified two separate occasions when they unsuccessfully sought to interview these individuals. The first occurred in October 1992 when the prosecutors came to Washington to meet with DOJ officials and the Marshals Service. [FN1566] According to Howen, they had provided advance notice to the FBI that they were going to be in Washington and wanted to interview these officials. However, when they arrived in Washington and contacted the FBI, they were informed that the FBI officials were unavailable. [FN1567] Neither prosecutor made the interview arrangements. Howen did not know who had set up the interviews with the FBI but speculated that it was Dillon or Rampton [FN1568] while Lindquist believed that the Terrorism and Violent Crime Section at the Department of Justice had made the arrangements for a specific day. [FN1569] The second time that Howen and Lindquist were unsuccessful in interviewing the headquarters officials was sometime in early March 1993. Although Howen could not recall what, if any, prior arrangements had been made to conduct the interviews, [FN1570] Lindquist believed that specific times and been set for these interviews. [FN1571] Lindquist stated that when they arrived they were told that the FBI officials were unavailable. It was his impression that they were being "put off." [FN1572] In a March 17, 1993 memorandum, Dana Biehl mentioned that the prosecutors expressed a need to interview Potts, Kahoe, Coulson, Uda and Apple. [FN1573] On the next day, James Reynolds informed Mark Richard, Deputy Assistant Attorney General of the Criminal Division, of the need of the prosecutors to interview these individuals. In addition, Reynolds noted that when the prosecutors had been in town the previous week, the FBI had declined to make them available until the Waco standoff was resolved. Reynolds opined that this position was unacceptable. [FN1574] He told investigators that his impression was that Howen and Lindquist had not made advance appointments with the FBI officials. [FN1575] Mary Incontro told investigators that when the interview request was made almost everyone was involved with the WACO crisis. She added that the FBI always indicated a willingness to meet with the prosecutors. [FN1576] Thereafter, Reynolds attempted to arrange interviews with the FBI officials. The FBI agreed to make the officials available on two or three consecutive days between the hours of 7:00 p.m. to 9:00 p.m. When Reynolds informed Lindquist of this proposal, Lindquist responded that they had been in Washington two weeks ago and now the FBI officials could come to Boise. In a later call, Howen and Lindquist indicated that they would try to complete the interviews during a one week recess in late April 1993. [FN1577] Howen said he may have conducted one or two interviews by phone but that the time demands of the trial caused him to abandon further telephone interviews. [FN1578] [Garrity] [FN1579] [Garrity] [FN1580] [Garrity] [FN1581] [Garrity] [FN1582] 3. DISCUSSION a. Decision to Have the Marshals Service and BATF Assist in Case Preparation The USAO created great conflict between it and the FBI when it decided to add the marshals and BATF agents to the trial preparation team. We find the FBI's actions and attitudes to have been unjustified and terribly disruptive to the USAO's trial preparation efforts. Although conflicting evidence exists as to whether the USAO requested the addition of the marshals to the trial team or whether the Marshals Service volunteered its services, we are confident that it was a decision that was welcomed by both the Marshals Service and the USAO. Perhaps the USAO could have been more tactful or sensitive in the timing and manner in which they informed the FBI of this action. However, we do not consider such a decision to have been one that required FBI concurrence or approval. We believe that the decision was appropriate and was certainly one within the purview of the USAO. We accept the representations of the USAO as to why these agencies were added to the trial team, including that they needed additional assistance in preparing the case for trial. This was a complicated case that was made dramatically more labor intensive by the scope of the indictment and the inclusion of the conspiracy count. Investigative activities needed to be conducted outside of Boise and large amounts of evidence needed to be processed, organized and analyzed. We think it was entirely appropriate for the USAO to turn for assistance to the Marshals Service and the BATF, both of which had prior investigative interest and involvement in the case. We are troubled by the reaction of the FBI to the addition of these new members to the trial team and its tenacious adherence to its position of being the lead agency. Such resistance was unjustified, distracted the USAO from its task of preparing the case for trial, and set a negative tone for the working relationship between the FBI and the other team members. That the FBI had primary jurisdiction over the assault charges does not confer power on it to control the entire case. There was room on the case preparation team for the participation of other agencies having an interest in the case. Once the case became the responsibility of the USAO we think that they, not the FBI, were the appropriate governmental body to control the direction of the case preparation activities. Although a component of these activities included additional investigation, we do not find it inappropriate for the USAO to control and direct such activities. Indeed, it is the USAO that must present evidence at trial to satisfy all of the elements of the charged offenses and to meet the defenses raised by the defendants. Consequently, we believe that the USAO was in the best position to assess how to prepare the case for trial. Having the FBI function as an intermediary between the USAO and the other agencies would have added a needless and burdensome bureaucratic layer. We respect the decision of the USAO not to have instituted such an approach and are extremely critical of the rigidity of the FBI on this issue. In our view, the FBI lost sight of its role as assisting rather than controlling the actions of the USAO. b. The Iowa Interviews and the Failure to Document the Results We are not aware of any legal principle or statutory requirement that requires governmental investigators to document all of the interviews that they conduct. See United States v. Martino, 648 F.2d 367, 387 (5th Cir.), cert. denied, 456 U.S. 943 (1981). Although the FBI requires its agents to document their interviews, other governmental agencies do not impose requirements that are as exacting. In this case, the prosecutors took advantage of the less restrictive documentation requirements of the Marshal Service and had the marshals conduct approximately 100 witness interviews during the serving of subpoenas. [FN1553] It is our opinion that this practice was imprudent. Under the Brady doctrine the government is required to disclose to the defense material evidence that is both favorable to the accused and material to either guilt or punishment. See United States v. Bagley, 473 U.S. 667, 676, 682 (1985); Brady v. Maryland, 373 U.S. 83, 87 (1963). This requirement is not limited to information that is in written form but extends to oral statements of which the government is aware. See generally, Carter v. Rafferty, 826 F.2d 1299 (3d Cir. 1987), cert. denied, 484 U.S. 101 (1988). In addition, the prosecutor is responsible for producing Brady information which is within the knowledge of persons working as part of the prosecution team of intimately connected with the government's case. United States v. Butler, 567 F.2d 885, 889 (9th Cir. 1978); United States v. Morell, 524 F.2d 550, 555 (2d Cir. 1975). Although we discovered no evidence that these interviews produced any exculpatory information, our inquiry was severely restricted since no written, audio or video record was created of these interviews. Without memorializing these interviews, we were forced to rely on the memories of two individuals: Howen and Stafford. Howen insisted that if these interviews had produced any exculpatory information that he would have notified defense counsel. No matter how sincere Howen is on the issue, we are not comfortable that the interview process in place was adequate to ensure that exculpatory information was identified. No one ever instructed the marshals or took steps to ensure that they, particularly Stafford, understood the type of information that qualified for production under the Brady rule. Moreover, some of the notations that Stafford made on the subpoena cover sheets suggest that significant information might have been learned. [FN1584] Although this information may not have been Brady material, we have no reliable means to comfortably conclude that it is not. Although we recognize that prosecutors may sometimes participate either directly or indirectly in interviews that are not documented, we are concerned by the actions of Howen in this case. Here, we are not talking about one or two undocumented interviews but rather we are faced with a situation where approximately 100 interviews were conducted in this manner. [FN1585] Although there may be no direct evidence that exculpatory information was learned and concealed, we think that adverse interferences may be drawn by the undocumented interview process followed in the Weaver prosecution. There were no reliable safeguards in place to ensure that if exculpatory information were learned that it would be provided to the defense. [FN1586] Relying on the memory and judgment, regardless of how well intentioned, of a marshal who was not specifically trained or instructed regarding the identification of exculpatory information, does not suffice. Accordingly, we find the procedure to be inappropriate and advise against adopting a similar practice in the future. c. Acoustical Experiment at Ruby Ridge We find nothing improper about the acoustical experiment that members of the prosecution team conducted in late October 1992 at Ruby Ridge. Indeed, we accept the explanation provided by Lindquist that it was nothing more than a preliminary attempt to determine if expert assistance was necessary. The test firings were not scientifically planned or conducted. Even Rampton was surprised by the unscientific methodology used. The test consisted only of the firing of guns at the approximate locations where the participants of the August 21, 1992 shooting were located. There were no controls on the experiment or written findings. Nor, as Howen recognized, was there any way to duplicate the August 21st conditions since most of the leaves had fallen from the deciduous trees. The test results were clearly not discoverable under Fed. R. Crim. P. 16(a)(1)(D) for two obvious reasons. [FN1587] First, the test would not qualify as a scientific test or experiment as that term is commonly understood. The actions that the participants took in conducting their rudimentary test did not utilize modern scientific techniques. [FN1588] Second, Rule 16 has been interpreted as requiring only the disclosure of written reports and written test results. United States v. Peters, 937 F.2d 1422, 1425 (9th Cir. 1991); United States v. Glaze, 643 F.2d 549, 552 (8th Cir. 1981). The government is under no duty to turn over informal internal documents, but need only disclose final results and reports. United States v. Iglesias, 881 F2d 1519, 1523-24 (9th Cir. 1989), cert. denied, 493 U.S. 1088 (1990). Here, no written results were ever prepared. Even if the experiment were not discoverable under Rule 16, the issue remains whether the government should have disclosed it to the defense as Brady material. We find that such disclosure was not required. From the evidence produced in our investigation, we found no indication that the test produced any type of result that could be properly classified as being exculpatory in nature. No one present for the test could recall what, if any, conclusions were reached. Lindquist, who was not present at the test, recalls hearing that the results were inconclusive as to the effect of echoes and whether the firing of different types of guns could have been distinguished. Howen told investigators that he never gave any consideration to informing the defense of the acoustical test because he did not consider what they were doing to be exculpatory. [FN1589] Moreover, in our view, the unscientific nature of the test coupled with the difference in conditions caused by the fallen leaves were significant variables that would call into question any results obtained. For all of these reasons, we conclude that the test did not constitute Brady material. d. Attempts to Interview FBI Officials Although we find the difficulty that the prosecutors encountered in attempting to interview FBI officials in Washington to be unfortunate, the evidence was inconclusive that these officials or others in the FBI were intentionally avoiding being interviewed. Indeed, we are not convinced that explicit interview arrangements were ever made. No one was able to provide us with a satisfactory account of who set up the interviews, what specific arrangements were made, and what information was provided to the interviewees. Neither Howen nor Lindquist had a good sense as to who was making the arrangements to interview the FBI officials. Nor did the clearly recall having exact times set during which the interviews would occur. Furthermore, none of the FBI officials recalled the first unsuccessful interview attempt. All denied that they had ever refused an interview request from the prosecutors. Mary Incontro indicated that the officials always appeared willing to meet with the prosecutors. To the extent that these officials may have been unavailable for interviews during the Waco crisis, we do not find the excuse to have been a fabrication. These officials were closely involved in the Waco crisis, were working long hours and were responsible for monitoring the crisis and making critical decisions. When James Reynolds contacted them, they agreed to make themselves available for evening interviews. Although perhaps the FBI officials could have shown more flexibility in accommodating the needs of the prosecutors, we cannot conclude that their actions were totally without justification. In the future, we would hope that the FBI will work to facilitate the access of prosecutors to FBI headquarters officials who are important to the preparation of federal prosecutions. A system needs to be instituted whereby the local FBI office either can make firm arrangements for such interviews or can introduce the prosecutors to the officials so that direct arrangements may be made. Although we appreciate the continuous demands made of many FBI officials, they must recognize that assisting federal prosecutors in preparing their cases for trial is included among their responsibilities as a member of the federal law enforcement team. e. Relationship Among the Investigative Team Prior to the beginning of the Weaver case preparation, problems existed in the working relationship between the FBI and the USAO. However, the relationship between these two branches of the department of Justice dramatically deteriorated with the Weaver prosecution. Although our investigation did not reveal that either side was intentionally taking actions to aggravate the other or to sabotage the prosecution, we were dismayed by the failure of the parties to more actively try to resolve their disagreements. Many of the individuals questioned about the relationship between the USAO in Boise and the FBI attributed the discord to a personality clash between the parties involved. [FN1590] Some, including Stafford, attributed the problem as being traceable primarily to the FBI Headquarters and the regional office in Utah. [FN1591] We agree that some of the difficulties were probably worsened by personality clashes between members of the USAO and the FBI. However, we believe that the problem goes much deeper and originated in the bureaucratic rigidity of the FBI and the institutional bias displayed by some members of that institution. The behavior of the FBI in the Weaver case revealed their troubling unwillingness to work as a team player. If the FBI could not be in control or it its views were not adopted, the FBI participated in an unreasonable manner by either refusing to cooperate or going through the motions of cooperating while exhibiting a negative attitude. Examples of such behavior included the intransigence that the FBI showed with regard to its opposition to the case agents conducting the interviews of the Iowa witnesses, the unwillingness of the FBI to accept and work with representatives from the other investigatory agencies, the failure of the FBI to actively assist the USAO by providing expert assistance, [FN1592] and the resistance of the FBI to producing materials that the USAO believed were discoverable. [G.J.] [G.J.] The FBI is supposed to work together to assist the prosecutors in developing and presenting criminal cases for trial. In the Weaver case the FBI lost sight of this crucial responsibility. When decisions were made by the USAO with which they did not agree, the FBI found it difficult to accept them and to proceed with the task of preparing the case for trial. This problem appeared both to emanate from the managerial levels of the FBI and to filter down in a diluted form to the case agents. We also detected a prevalent and troubling attitude among members of the FBI that they are the superior investigators and that all other investigative agencies are inferior. This attitude was detected by the other agencies which served to further weaken the already fragile working relationship. Although we sympathize with the pressures under which members of the USAO were operating in prosecuting this case, we were left with the impression that perhaps further actions and discussions might have lessened or resolved the disagreements between the USAO and the FBI. With regard to the clash between the FBI and the other investigative agencies, the USAO appeared to allow matters to proceed without taking any significant steps to improve the working relationship among these groups. We suspect that the personalities involved in these disputes contributed to the standoff that seemed to exist between the USAO and the FBI. What was needed was a strong personality that could have risen above the fray and attempted to resolve the disagreements and misunderstandings that existed. We are encouraged by the actions and attitude of the new U.S. Attorney for the District of Idaho and are hopeful and optimistic that she and the FBI will be successful in eliminating some of the problems that have plagued the relationship between her office and the FBI. 4. CONCLUSION The working relationship between the FBI and the USAO and other team members in the Weaver case was poor and, in our view, adversely impacted upon the preparation of the Weaver case for trial. Active steps must be taken to ensure that such problems do not repeat themselves in subsequent prosecutions. _________________________________________________________________ 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 N) 1393 Howen Interview, Tape 8, at 21-22. 1394 FD-302 Interview of Gregory Rampton, October 18-19, 1993, at 19. See also, FD-302 Interview of T. Michael Dillon, October 25, 1993, at 13-14. 1395 Lindquist Interview, Tape 1, at 21-24. 1396 Rampton FD-302, at 35. 1397 FD-302 Interview of Joseph V. Venkus, October 18-19, 1993, at 19; Lindquist Interview, Tape 2, at 5. 1398 See also, Venkus FD-302, at 19. Lindquist rejected the economic justification argument advanced for using leads since the Weaver matter was a major case and the FBI had always found the money to investigate major cases. He believed that the FBI was insisting on leads simply because that was the way the Bureau always handled such matters. Lindquist Interview, Tape 2, at 5-6. 1399 Dillon adamantly opposed having the case agents conduct out of state interviews. Dillon FD-302, at 11. 1400 Venkus FD-302, at 22. 1401 This document is captioned, "Things to Do." The first item on the list states, "Get agent in or near Cedar Rapids to get all articles on the Weaver's for background," and then to interview the nine witnesses on the list. See Undated Document entitled "Things to Do," authored by Ronald Howen. 1402 Venkus FD-302, at 22. Rampton explained that a "clean 302" was one in which the identifying FBI file number was not present. According to Rampton, Howen did not want the FBI file number on the document because it would impair the ability of the defense to obtain all of the information in that file under a Freedom of Information Act request. Rampton FD-302, at 21. 1403 Venkus FD-302, at 22. 1404 Letter from Maurice Ellsworth to Eugene Glenn, October 23, 1992, at 3. 1405 Howen Interview, Tape 8, at 44-47. 1406 Letter from Maurice Ellsworth to Eugene Glenn, October 23, 1992, at 3. 1407 Venkus FD-502, at 19. 1408 Rampton FD-302, at 22. 1409 [G.J.] 1410 [G.J.] 1411 [G.J.] 1412 [G.J.] 1413 [G.J.] 1414 [G.J.] 1415 [G.J.] [GARRITY] 1416 [G.J.] [GARRITY] 1417 [G.J.] 1418 [G.J.] 1419 Howen Interview, Tape 8, at 16. 1420 It appears that Ms. Hefner had very little involvement in case preparation and that Mr. Byerly was the more active participant. See Lindquist Interview, Tape 1, at 16. 1421 Stafford Sworn Statement, at 2; Sworn Statement of Robert Anthony Masaitis, at 2. Special Agent in Charge Glenn told investigators that Duke Smith had told him that the Assistant U.S. Attorneys assigned to the case had made this request to the Marshals Service. Sworn Statement of Eugene Glenn, January 12, 1994 at 19. 1422 FD-302 Interview of Henry Hudson, November 15, 1993, at 8. 1423 Letter from Maurice Ellsworth to Eugene Glenn, dated October 23, 1992, at 2; Ellsworth Interview, Tape 4, at 18; Howen Interview, Tape 8, at 26-28. 1424 Lindquist Interview, Tape 2, at 3-4. However, Venkus stated that Lindquist told him that Smith had offered the assistance of the deputy marshals. Lindquist is then reported to have asked Venkus how could they refuse such an offer. Venkus FD- 302, at 17. 1425 FD-302 Interview of Ronald D. Evans, dated October 21, 1993, at 5. 1426 Stafford Sworn Statement, at 8. 1427 Howen Interview, Tape 6, at 32-36 1428 Ellsworth Interview, Tape 4, at 12, 19-20. 1429 Lindquist did not believe that the local FBI office had the resources to accomplish the required trial preparation tasks. Lindquist Interview, Tape 2, at 4-5. 1430 Lindquist Interview, Tape 3, at 3. 1431 Rampton FD-302, at 22. 1432 Ellsworth Interview, Tape 4, at 19; Letter from Maurice Ellsworth to Eugene Glenn, October 23, 1992, at 2. 1433 Howen Interview, Tape 8, at 34-35. 1434 Lindquist Interview, Tape 2, at 13-14. 1435 Thereafter, at the instruction of Dillon, Rampton called the marshals and invited them to review the FBI file on the case. Rampton stated that the marshals never accepted the offer. Rampton FD-302, at 23. 1436 Dillon FD-302, at 11. 1437 Dillon FD-302, at 12. See Letter from Eugene Glenn to Maurice Ellsworth, dated October 22, 1992; Letter from Maurice Ellsworth to Eugene Glenn, dated October 23, 1992; Letter from Eugene Glenn to Maurice Ellsworth, dated October 27, 1992. 1438 Rampton FD-302, at 23. 1439 Glenn Sworn Statement, at 39-40. 1440 Hudson FD-302, at 8. 1441 Stafford Sworn Statement, at 2. 1442 Rampton FD-202, at 22. 1443 Ellsworth Interview, Tape 4, at 20. 1444 Rampton FD-302, at 22. See also, Memo to Weaver/Harris File from Kim R. Lindquist, October 26, 1992 (hereinafter cited as "Lindquist File Memo"). 1445 Venkus FD-302, at 17. 1446 Lindquist File Memo, October 26, 1992, at 2. 1447 Evans FD-302 1448 Hudson FD-302, at 8. 1449 Stafford Sworn Statement, at 1-2. 1450 Masaitis Sworn Statement, at 2-3. 1451 Lindquist Interview, Tape 2, at 14-15, 17; Lindquist File Memo, October 26, 1992. 1452 Howen Interview, Tape 8, at 23-25; 35-37. 1453 Id. at 37. 1454 Howen Interview, Tape 8, at 22-23. 1455 Ellsworth Interview, Tape 4, at 22. 1456 Letter from Eugene Glenn to Maurice Ellsworth, October 27, 1992, at 1. 1457 Ellsworth stated that: the FBI had primary investigative jurisdiction as to the two assault on a federal officer counts and the murder count; the Marshals Service had primary investigative jurisdiction as to the three counts of the indictment charging the failure to appear, harboring a fugitive and commission of a crime while pending release for trial; the BATF had primary jurisdiction for the three gun related offenses; and that all three investigative agencies had responsibility for parts of the conspiracy count. Letter from Maurice Ellsworth to Eugene Glenn, October 23, 1992, at 1-2. 1458 Initially, Venkus and Rampton informed Howen and Lindquist that they would be unable to attend the first meeting because of a conflicting meeting with Dillon. Venkus FD-302, at 18. The USAO believed that this was an excuse made by the FBI because they were embittered by the decision to bring in the other agents. Lindquist Interview, Tape 2, at 15-16; Memo to Weaver/Harris File from Kim R. Lindquist, dated October 26, 1992; Memorandum from Maurice Ellsworth to Kim Lindquist and Ron Howen, dated October 26, 1992. the FBI disputes that charge and maintains that there were legitimate reasons for their inability to attend the meeting scheduled. After initially declining to attend the first team meeting in Post Falls, Idaho, Dillon, ASAC Tubbs, Rampton and Venkus attended the meeting after Howen rescheduled it to another date. Venkus FD-302, at 18. 1459 Howen Interview, Tape 8, at 37-40; Sworn Statement of Herbert Byerly, December 20, 1993, at 19-20. 1460 Byerly Sworn Statement, at 19-20. 1461 Stafford Sworn Statement, at 3. 1462 Masaitis Sworn Statement, at 5. 1463 Venkus FD-302, at 18. 1464 Masaitis Sworn Statement, at 5. 1465 Lindquist Interview, Tape 2, at 20. 1466 Id. at 20-21. 1467 Masaitis Sworn Statement, at 15-16; Lindquist Interview, Tape 2, at 18. 1468 Stafford Sworn Statement, at 7-8. chief Deputy Marshal Ronald Evans seemed to confirm this practice. He stated that it is standard procedure for deputy marshals to document the results of any investigation that they conduct but that it is "up to the individual and is generally discussed with the AUSA." Evans FD-302, at 6. 1496 Stafford Sworn Statement, at 6. 1470 Id. at 8. 1471 Venkus FD-302, at 10. 1472 Rampton FD-302, at 24. 1473 Id. at 25. 1474 Howen Interview, Tape 8, 15 46-47. 1475 Stafford Sworn Statement, at 5. 1476 Id. at 3. 1477 Id. at 8. 1478 Id. at 2-3. 1479 The U.S. Attorney's Office prepared a master list of witnesses from these sheets. Id. at 6. 1480 Stafford Sworn Statement, at 7. Howen insisted to investigators that he had never seen these sheets prior to his November 1993 interview. Howen Interview, Tape 9, at 11. 1481 Howen Interview, Tape 8, at 44-48. 1482 Id. at 49-53. 1483 Id. at 51-56. 1484 Howen Interview, Tape 8, at 49. 1485 Id. at 56-57. 1486 Lindquist Interview, Tape 2, at 18. 1487 Id. at 19. 1488 Id. at 20. 1489 Id. at 20. 1490 Byerly Sworn Statement, at 22-23. 1491 Byerly recalled wondering why Venkus, who lived in Northern Idaho, was not participating in serving the subpoenas. He did not know whether Venkus and Rampton were aware that they were serving the subpoenas and conducting the interviews. Byerly Sworn Statement, at 24. Howen said that normally the marshals would serve their subpoenas. He could not recall why Deputy Marshal Cluff, who had the region, did not serve the subpoena but he speculated that he might have been unavailable. In any even, Howen stated that Stafford was a marshal and that was consistent with his practice of having the marshals serve the subpoenas. Howen Interview, Tape 9, at 1. 1492 Byerly Sworn Statement, at 23; Stafford Sworn Statement, at 3. 1493 Byerly Sworn Statement, at 23. 1494 Id. 1495 Id. 1496 Masaitis Sworn Statement, at 13-15. 1497 Id. at 18. 1498 Rampton FD-302, at 25; Venkus FD-302, at 19. Rampton reported that following a February 1993 team meeting at which Howen and Lindquist agreed that the FBI should conduct some Iowa interviews, Rampton sent out leads to conduct these interviews. At a subsequent team meeting, Rampton was surprised to learn from Stafford that he had already conducted some of these interviews. 1499 Sworn Statement of Eugene Glenn, at 40. 1500 Rampton FD-302, at 36. 1501 Id. at 27 1502 Howen Interview, Tape 2, at 21. 1504 Venkus FD-302, at 20. 1505 Lindquist Interview, Tape 2, at 21-22. 1506 Id. at 21; Ellsworth Interview, Tape 4, at 31. 1507 Lindquist Interview, Tape 2, at 22. 1508 Id. at 22-23. 1509 Id. at 22-23. 1510 Rampton FD-302, at 42-43; Venkus FD-302, at 20. 1511 FD-302 Interview of Bruce E. Koenig, October 28, 1993, at 1-2. 1512 Masaitis Sworn Statement, at 7-8. 1513 Lindquist does not recall participating in this experiment. Lindquist Interview, Tape 2, at 23. BATF Agent Byerly did not participate in the acoustical test but was aware that it occurred and believes that he was informed of the results. It was his understanding that the purpose of the test was to corroborate what the marshals heard on the mountain and to determine the impact of echoes. Byerly Sworn Statement, at 24. 1514 Stafford Sworn Statement, at 9. 1515 Masaitis Sworn Statement, at 8. 1516 Howen Interview, Tape 9, at 11. 1517 Masaitis Sworn Statement, at 8. 1518 Stafford Sworn Statement, at 9; Masaitis Sworn Statement, at 8. 1519 Venkus FD-302, at 29. 1520 Lindquist Interview, Tape 2, at 24. 1521 Rampton FD-302, at 42-43. 1522 Howen Interview, Tape 9, at 6-8. 1523 U.S. Attorney Ellsworth could not recall this experiment being conducted. Ellsworth Interview, Tape 4, at 32-33. 1524 Lindquist Interview, Tape 2, at 23. 1525 Howen Interview, Tape 9, at 10. 1526 Baldwin was a sheriff from Idaho County who was prosecuted for illegal wiretapping. The jury acquitted Baldwin of these charges. Ellsworth Interview, Tape 5, at 2-3. 1527 Dillon FD-302, at 6; Venkus FD-302, at 27. 1528 Dillon FD-302, at 6-7. 1529 Glenn Sworn Statement, at 41. 1530 Ellsworth Interview, Tape 4, at 18. 1531 Lindquist Interview, Tape 7, at 24. 1532 Id. at 27. 1533 FD-302 Interview of Wayne F. Manis, October 5, 1993, at 2 and attached chronology. 1534 [GARRITY] 1535 Howen Interview, Tape 10, at 24-26. 1536 Lindquist Interview, Tape 6, at 31. 1537 Ellsworth Interview, Tape 6, at 4. 1538 Lindquist Interview, Tape 5, at 13-14; Ellsworth Interview, Tape 4, at 13-14. Memorandum from Maurice Ellsworth to Kim Lindquist and Ron Howen, October 26, 1992. 1539 See Section IV (J) for a discussion of the problems caused by the FBI Laboratory. 1540 By Fall 1992, the relationship had deteriorated to such a point that Assistant U.S. Attorney Marc Haws drafted a memorandum of understanding ("MOU") between the USAO and the FBI. Lindquist Interview, Tape 2, at 8-9. According to Howen, the relationship had become so poor that Ellsworth was ready to state that the USAO would stop trying cases referred by the FBI if they did not stop trying to control the prosecutions. Howen Interview, Tape 11, at 10-11. The MOU set forth terms of cooperation to be followed by the USAO and the FBI when working together in preparing major criminal cases for trial. The last version of this document was transmitted to Glenn and Dillon for signature; Glenn never executed the document. Howen Interview, Tape 11, at 10-11; Ellsworth Interview, Tape 4, at 13-16. Letter from Marc Haws to Maurice Ellsworth, G Wayne Smith, T. Michael Dillon and Gene F. Glenn, October 28, 1992. 1541 (...continued) [G.J.] 1542 Rampton FD-302, at 27. 1543 Dillon FD-302, at 12; Rampton FD-302, at 21. 1544 Lindquist Interview, Tape 2, at 16. 1545 Howen Interview, Tape 8, at 41-43. 1546 Id. at 43; Lindquist Interview, Tape 2, at 16-17. 1547 Ellsworth Interview, Tape 4, at 22. 1548 Venkus FD-302, at 21. 1549 Venkus FD-302, at 25; Memorandum by Gregory Rampton, February 9, 1993. 1550 Id. 1551 Stafford Sworn Statement, at 4. 1552 Howen Interview, Tape 11, at 2. 1553 Stafford Sworn Statement, at 3. 1554 Id. 1555 Id. at 6. 1556 Byerly Sworn Statement, at 27. 1557 Id. at 21, 24. 1558 Id. at 21. 1559 Howen Interview, Tape 11, at 4. 1560 Id. at 4-5. As the various problems surfaced prior to and during the trial, Masaitis credited Howen and Lindquist with attempting to deal with the problems without displaying any overt hostility to the FBI. Masaitis Sworn Statement, at 12. 1561 see Section IV(I( of this report for a discussion of the controversy surrounding the failure of the FBI to use the triangulation process when collecting the evidence at the crime scene. 1562 Howen Interview, Tape 11, at 2-4. The marshals critique and the resistance of the FBI to produce it in discovery is discussed in Section IV(M). 1563 Lindquist Interview, Tape 7, at 25. 1564 Id. at 28-29. 1565 Id., Tape 2, at 8-11. 1566 Howen Interview, Tape 8, at 26. 1567 Id. at 29-30. Lindquist recalled that they were scheduled to meet with Larry Potts and John Uda, the author of the document that has become known as the "marshals critique" as well as some other officials. Lindquist Interview, Tape 5, at 9-10. 1568 Howen Interview, Tape 8, at 30. 1569 Lindquist Interview, Tape 5, at 10-11. 1570 Howen Interview, Tape 10, at 19. 1571 Lindquist Interview, Tape 5, at 11. 1572 Id. at 9-11. 1573 Memorandum from Dana Biehl to James Reynolds, March 17, 1993 at 5. 1574 Memorandum from James Reynolds to Mark Richard, March 18, 1993, at 7. 1575 FD-302 Interview of James Reynolds, August 11, 1993, at 6. 1576 FD-302 Interview of Mary Incontro, August 10, 1993 at 3. 1577 Reynolds FD-302, August 11, 1993, at 6. Sometime during the pretrial preparation of the Weaver case, Jeffrey Howard, who at the time was Principal Associate Deputy Attorney General of the Department of Justice, recalled a meeting with two Assistant U.S. Attorneys for Idaho and other DOJ officials. Howard recalled that the Assistants were complaining about their access to people at FBI Headquarters. It was his recollection that someone from the meeting called the FBI and made arrangements for the Assistants to meet with those individuals with whom they had been trying to meet. FD-302 Interview of Jeffrey Howard, January 3, 1994, at 3. 1578 Howen Interview, Tape 10, at 20. 1579 [Garrity] 1580 [Garrity] 1581 [Garrity] 1532 [Garrity] 1583 Although Howen and Lindquist may not have issued a specific directive not to document the interviews, the evidence demonstrates without question that they did not want to create a paper trail of their activities for the defense to discover and that the reason that they did not have the FBI conduct the interviews was because their agents were required to prepare written reports of the interviews that they conducted. When questioned about the failure of the deputy marshals to document the interviews conducted while serving subpoenas, former Marshals Service Director Hudson stated that he would not permit an Assistant U.S. Attorney to direct a deputy marshal not to write a report in order to avoid discovery requirements. Hudson FD-302, at 9. 1584 For example, on the subpoena sheet for Chris Colegrove, Stafford deleted the typed words "not needed" and wrote "needed." Stafford wrote on the subpoena sheet for Steve Tanner, "This guy must be interviewed. Ron & Kim, Talk to me about this guy. JWS." 1585 U.S. Attorney Ellsworth was unaware that these interviews had not been documented and had always assumed that the marshals had agreed to use the FD-302 interview form when conducting interviews. He stated that he would have been concerned if he had learned that the interviews were not being documented since a record needed to be made of the information collected to ensure that the USAO was complying with its discovery obligations. In addition, Ellsworth thought that the conducting of undocumented interviews seemed inconsistent with the open discovery policy of the USAO. Ellsworth saw no problem in documenting all interviews but stated that there might be some situation when it would not be necessary. Ellsworth Interview, Tape 4, at 26-28. 1586 James Reynolds believed that an interview should be documented if it generates significant information even if the amount of information involved is small. Reynolds FD-302, October 3, 1993, at 6. 1587 In the discovery stipulation executed by the parties, they agreed "to reciprocal disclosure and inspection of all material stated" in Fed. R. Crim. P. 16(a)(1) and 16(b)(1). See stipulation and Reciprocal Request for Discovery and Inspection, Notice of Alibi and Notice of Mental Condition, dated October 16, 1992, a 1. Rule 16(a)(1)(D) of the Federal Rules of Criminal Procedure provides in pertinent part that, Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph any results or reports ... of scientific tests or experiments ... which are within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial. 1588 See generally 3 Moore's Federal Practice ? 16.05?? (1993) 1589 Howen Interview, Tape 9, at 10. 1590 See, e.g. DOJ Memorandum of Interview of Marc Haws, December 17, 1993, at 4. 1591 Stafford Sworn Statement, at 9(?). 1592 See discussion of this issue in Section ???(J). _________________________________________________________________ IV. SPECIFIC ISSUES INVESTIGATED O. ALLEGED FAILURE OF USAO TO NOTIFY THE DEFENSE OF BRADY MATERIAL AND OTHER IMPORTANT INFORMATION 1. INTRODUCTION When the Weaver trial began, the U.S. Attorney's Office in Boise ("USAO"), assisted by governmental investigative agencies, had compiled and produced a large volume of materials in discovery including thousands of pages of documents, transcripts, numerous audio and video tapes, photographs and a multitude of investigative reports. In addition, the USAO had permitted defense counsel to inspect the evidence developed during the case investigation. Despite its efforts to comply with its discovery obligations and the Brady rule, a number of incidents occurred during the trial which cast doubt on whether the Government had been totally forthcoming in its responses to the defense. These incidents included: its resistance to produce FBI and Marshals Service manual provisions and personnel files subpoenaed by the defense; the failure to disclose all facets of the compensation arrangement between the BATF and a confidential informant; the untimely discovery of critical FBI notes relating to the interview of Deputy Marshal cooper; the failure by Assistant U.S. Attorney Howen to notify the defense of potentially exculpatory information learned during an interview of Idaho State Police Captain Neal; the untimely production of crime scene photographs and disclosure of the circumstances surrounding how the photographs were taken; and the untimely production of materials associated with the FBI's shooting incident report. 2. STATEMENT OF FACTS a. Defense Subpoenas for FBI and Marshals Service Manuals and Personnel Files On November 3, 1992, defense counsel Charles Peterson wrote a letter to Assistant U.S. Attorney Howen identifying five classes of documents that he considered encompassed by the discovery stipulation executed by the parties. Two of these classes were "[a]ny manuals, memorandums or directives outlining the procedures and standards for developing operational rules of engagement in the field' and '[a]ny FBI arrest protocols or instructions." Peterson requested Howen to advise him if he did not intend to produce any of these materials. [FN1591] Howen responded in a letter dated November 9, 1992 and informed Peterson that he intended to provide him "with these materials that are discoverable under rule 16 and our stipulation regarding pre-trial exchange of Jancks Act, Grand Jury and Rule 26.2 materials." According to Howen, the "first prerequisite" to production was that he have possession of the documents and that Peterson have a right to the documents under Rule 16 or the discovery stipulation. Howen then wrote, "I am unaware of any case law, statute or rule that compels me to affirmatively create and/or find documents that may be in the possession of another law enforcement agency" [FN1592] Peterson did not respond to the November 9, 1992 letter from Howen nor did he file a motion to compel production of the materials identified in his November 3, 1992 letter. On April 13, 1993, which was the first day of the Weaver trial, the defense filed its Third Ex Parte Application for Issuance of Subpoenas and Payment of Costs and Fees. In that document, they requested the court to issue subpoenas for numerous individuals and documents including: 4. Federal Bureau of Investigation, (1) for the production of any and all FBI manuals which describe procedures or establish standards and rules for the apprehension of fugitives, arrest of subjects or the use of force. By this request the defendants intend to reach the publications used by members of the FBI which describe what the government's witnesses have testified to as the 'standard rules of engagement' for that agency, and any other policy or procedures used by the agency and its Hostage Rescue Team for the apprehension of fugitives, arrest of subjects or the use of force; and (2) the personnel files in its control for Special Agent Lon Horiuchi, or Deputy United States marshals William Degan, Arthur Roderick, and Larry Cooper. The defense also requested similar manuals from the U.S. Marshals Service as well as any personnel files of Horiuchi, Degan, Roderick and Cooper that were in their control. [FN1593] On April 14, Judge Lodge issued the subpoenas requested in the ex parte order. However, he modified the order drafted by the defense by adding the following sentence, "[p]ersonnel records to be viewed only by defense counsel and not turned over to third parties or the media." [FN1594] By oral motion on April 15, defense counsel Peterson sought to compel the production of the personnel files and the manual provisions that the court had ordered the previous day. In particular, Peterson was seeking the personnel file of Deputy Marshal Cooper and the marshals Service manual provisions to assist in his cross examination of Cooper. [FN1595] Peterson characterized the issue as a government failure to comply with discovery and argued that production of these materials was required by the recently issued subpoenas. Howen responded that he could not be expected to respond to the subpoena when he had not been served with it nor had the documents in hi possession. In addition, Howen told the court that he would expect counsel at the FBI and the Marshals Service to handle the responses to the subpoenas. However, he argued that he was aware of no court that would allow defense counsel to have direct access to personnel files of witnesses. [FN1596] Assistant U.s. Attorney Lindquist informed the court that the FBI case agent had told him that they received the subpoena and that FBI Headquarters had been contacted. With respect to the Marshals Service subpoena, Lindquist stated that he had now knowledge but would take steps to ensure that the Marshals Service responded to it. [FN1597] The court acknowledged that the subpoena for the personnel files raised privacy issues and that further restrictions might be necessary but encouraged the government to facilitate the response to the subpoenas even if the documents were not within their control. [FN1598] Thereafter, defense counsel Spense agreed to inform the government of the specific requests. [FN1599] The Marshals Service provided the applicable Marshals Service manual provisions to the USAO on April 16. In its letter identifying the applicable provisions, the Marshals Service requested that the manuals be placed under seal and that access be restricted to the prosecution and the defense. [FN1600 On April 23, the defense moved to hold the government in contempt or to compel it to produce the requested manuals and personnel files. As of that date, the government had filed nothing in response to the subpoena. [FN1601 In court, defense counsel Nevin stated that he had been advised that the subpoenas had been served and that Howen had told him that he had the Marshals Service materials but did not want to produce them. fn 1602 Howen responded that he viewed this issue as a discovery dispute [FN1603 and that he was in the process of drafting a motion for a protective order. He disputed that the subpoenas seeking the personnel files had been served although he acknowledged that he learned that day that the subpoenas for the manuals had been served. Howen then referenced the November 1992 communications with defense counsel Peterson regarding the manuals and argued that Peterson should have sought to compel compliance earlier. [FN1604 Nevin responded that the motion to compel was directed to the recently issued subpoenas not prior discovery requests. [FN1605 Thereafter, Lindquist announced that he had the requested Marshals Service personnel files but could not relinquish them without Marshals Service approval. 1606 Judge Lodge responded that he wanted to assure himself that the subpoenas had been served and then wanted the government to respond either by complying or by filing a response. Judge Lodge stated that it did not matter to him if the response was filed by counsel for the Marshals Service or the FBI, but he expected the Assistant U.S. Attorneys, as officers of the court, to assist "in moving those matters along." If the response to the subpoena was not immediate, Judge Lodge said "this trial will come to a halt." Moreover, if the government had authority that the defense has no right to the personnel files, he wanted it to inform the court of the authority. The court also rejected the government's argument that this was a discovery issue and expressed frustration over the ambiguity of the USAO as to whether it represented the FBI and Marshals Service on this issue. 1607 Judge Lodge then ordered the manuals produced "forthwith", but reserved judgment on the personnel files and requested assistance from counsel on the issue "because the Court was concerned with it at the time the Court issued it." 1608 Later that day, Lindquist informed the court that the FBI had still not received a subpoena for the Horiuchi personnel file but that it was working on its response and that the USAO was drafting a response concerning whether the personnel files could be produced. With regard to the Marshals Service manual, it was agreed the defense would have access to it, but that the government would identify sensitive portions and then the court would rule as to whether they could be used at trial. 1609 Howen then told the court that he would be representing the government on this issue and apologized if he had misled the court on this issue. 1610 On April 23, the USAO moved for a protective order objecting to the subpoenas seeking the personnel files and the manuals. In that motion, the USAO repeated many of the previous arguments it had raised. In addition, it argued that it was outside the supervisory power of the court to order the production of the personnel files, that the appropriate procedure was to have a law enforcement officer familiar with the issues to conduct at "Henthorn" review. 1611 and that the government had ordered those reviews to be done. It also advised the court that the subpoenas had not been served on either agency and that the USAO had the Marshals Service personnel files, but not the FBI file. In addition, the government had requested the FBI and the Marshals Service to review the manuals for sensitive information and, if located, the government would request in camera review. 1612 On April 26, Special Agent John S. Bradford, the Principal Legal Adviser of the Salt Lake City Field Office, called Supervisory Special Agent Lucy Ann Hoover of the Civil Litigation Unit = ("CLU") of the Legal Counsel Division at FBI Headquarters in Washington, D.C. and requested her to conduct a Henthorn review of the personnel file of Horiuchi. Bradford informed Hoover that Assistant U.S. Attorney Warren Derbridge from the USAO had informed him that an ex parte order had been issued for the subpoena but that the USAO had not yet received the subpoena. 1613 According to Brian Callihan, the U.S. Marshals Service sent that subpoena to the FBI on April 26. 1614 Also that day, U.S. Attorney Ellsworth telephoned Joseph Davis, Assistant Director of the Legal Counsel Division at FBI Headquarters to discuss the FBI response to the defense subpoena for the FBI manual provisions and the Horiuchi personnel file. He told Davis that the court wanted the manual produced as soon as possible. On April 27, Davis wrote to Beau McFarland that he did not know the details of this matter, but assured Ellsworth that he would investigate and provide whatever assistance was needed. Davis then requested McFarland to consult with appropriate CLU personnel to insure that the FBI was not in contempt and that appropriate arguments and objections were made to any damaging releases. 1615 On April 28, someone, presumably Beau McFarland, forwarded the April 27 memo from Davis to Clawson in CLU I and wrote, "Please find out the status of this matter and advise me this morning. I believe Lucy Hoover is assigned to it now." Later that day, Clawson responded to the routing slip by expressing surprise at Ellsworth's comments since the "SU PLA processed the responsive manual provisions and provided them to the AUSA on Monday, 4/26." With regard to the request for the personnel file, Clawson stated that the FBI had still not been served but after consulting with the Assistant U.S. Attorney had decided to treat it as a Henthorn request. Clawson indicated that they would file a motion to quash if the subpoena for the personnel file was ever served. 1616 Sometime in late April 1993, the FBI gave the USAO a copy of the requested manual provisions. 1617 The next day, Howen wrote a letter to defense counsel Peterson and enclosed FBI manual provisions that were responsive to the subpoena.1618 On April 29, Hoover sent the completed Henthorn review of the Horiuchi personnel file to Howen. 1619 Hoover had found no exculpatory or impeachment information in the file. The defense objected to the government's motion for a protective order on April 30, 1993. At that time, the defense stated that it had received the Marshals Service training manuals and that the USAO had the Marshals Service manuals and the Marshals Service personnel files. With regard to the FBI materials, the defense said that the FBI had produced the training manuals but not the personnel manual to the USAO. The defense argued that pursuant to the terms of the discovery stipulation, the government was obligated to produce exculpatory material and thus, they should have reviewed and produced any such information contained in the personnel files without the need for an additional request. The defense admitted that their request for the complete personnel files may have been too broad, but believed that the court's modifications to its order adequately addressed the privacy concerns. 1620 On May 10, the government filed its Thirteenth Addendum to its Response to the Discovery Stipulation in which it included the Henthorn certifications for Horiuchi, Roderick, Cooper and Degan. 1621 Defense counsel Peterson raised the personnel file issue again in court that day and repeated his argument that the defendants were entitled access to the personnel files. Lindquist indicated that neither the FBI nor the Marshals Service had received a subpoena for the personnel files 1622 and that he and Howen had made it clear to defense counsel that the personnel files and manuals could only be obtained by subpoena. 1623 The court opined that the procedure set forth in the Henthorn case was controlling and the complete personnel file did not need to be produced unless such production was necessary to satisfy the Government's disclosure obligations. 1624 Later that day, defense counsel Spence and Nevin sent Howen a letter requesting to review the personnel files of Roderick, Hunt, Thomas, Norris, Cooper, Degan and Horiuchi and detailed a list of "matters and issues" for which they were looking in these files. Spence also requested such information from the personnel files of all federal agents that the government intended to call as witnesses. 1625 Howen answered that letter on May 12, and refused to provide the information because the request was untimely and exceeded the scope of information that was required to be produced under applicable federal law. 1626 On May 17, the court ruled on the personnel file issue. It noted at the outset that even though the personnel files were not specifically addressed in the discovery stipulation, the federal prosecutor, under Ninth Circuit law, has the obligation by virtue of his oath of office to produce Brady material without a court order. Furthermore, the court held the "[c]ounsel for the government should have undertaken this search in advance of trial, on their own initiative." It approved the procedure proposed by the government which was to have the law enforcement agent knowledgeable about the issues in the case to review the files for Brady material. If Brady material did not exist, the defense was to be informed; if Brady material was located, it was to be presented to the defense; and if the material was questionable, the court was to conduct an in camera review and make a determination as to whether it should be produced. The court ordered that this review should be done no later than two days before the witness is to testify and with regard to those witnesses who have already testified, the review should be conducted "post haste." 1627 Later that day, defense counsel Spence stated that the only personnel file that they needed was the file of Lon Horiuchi. 1628 With regard to the manual provisions, Howen recalls that the Marshals Service made the requested materials available almost immediately but that the FBI did not make its provisions available until later. However, Howen did not find the content or the speed of the FBI response to be unreasonable. Indeed, one of his main recollections about the subpoena for the manual was that the response that the FBI gave was too broad and mistakenly included sensitive portions of the manual. 1629 He also agreed with their resistance to the subpoena for the personnel files and concurred that there was no authority that would support giving the defense access to those files. 1630 His only dispute with the FBI on this issue was that they did not provide him some assistance in fashioning a response to the subpoena. 1631 Lindquist did not recall having any significant involvement in obtaining the subpoenaed manuals and personnel files and recalled the matter being handled by Howen. 1632 Although Lindquist recalled that the Marshalls Service quickly produced the requested materials, he had little recollection of what actions that the FBI took in this regard. 1633 b. Financial Compensation of Informant Fadeley It was the gun sale between Weaver and a government informant that provided the basis for the initial criminal charges brought against him. The Government also planned to introduce statements that Weaver had made to the informant during four taped conversations as evidentiary support for its conspiracy theory. After informal attempts to learn the identity of the informant had failed, 1634 Weaver's attorneys requested this information in a pretrial motion as well as any evidence that would affect the bias or credibility of the informant including "any promises of consideration given to the informant." 1635 On March 28, 1993, the government responded to this motion and refused to provide the requested information citing the untimeliness of the motion and the risks that disclosure posed on the informant. 1636 Thereafter, on April 12th, the court ordered the government to provide the requested information. On April 13, the first day of trial, the Government identified the informant as Kenneth Fadeley. With respect to any compensation paid to Fadeley, the government stated, "Mr. Fadeley [sic] has received reimbursement for expenses in the approximate amount of $500.00, but no salary." 1637 Before filing this addendum, Assistant U.S. Attorney Howen conferred with BATF Agent Herbert Byerly, who informed him that Fadeley had just been paid expenses. 1638 Kenneth Fadeley began testifying on April 19 and continued into April 20 at which time defense counsel began cross examining him. Toward the end of the cross examination, defense counsel inquired about the compensation that Fadeley had received for his work on the Weaver matter. Fadeley testified that when he works for BATF, he is paid for expenses which would include such items as gas and food. He could not recall how much money BATF paid him for expenses in 1986, but agreed that it was greater than $1.00, but less than $10,000.1639 From 1987-1989, BATF paid Fadeley for "just" expenses, but he was unable to recall the amount paid. 1640 Later, after Fadeley agreed that he had not assisted the government in this case for money and that BATF had never paid him any type of salary other than the payment of expenses, the following exchange occurred: Q ......When you first started working for ATF, were you told that you would be paid on a case-by-case basis? A I was told I'd be paid expenses for my work. Q Expenses. Were you told that you'd get paid after a case was made against a person? A After we concluded a case, there may be a monetary settlement, possibly. Q Okay. "After we concluded a case, there may be a monetary settlement"? Oh, let's talk about this case then. First of all, in order to conclude a case, you would have to get a guy to trial in the case, is that right? A I would assume so. Q And you would assume that not only would you have to get him convicted, right? A If he was guilty. Q Well, if you don't get a conviction, you don't get any money; isn't that right? A I would assume so. Q And that's not just your assumption, sir, that's your understanding about this case too, isn't it? If Randy Weaver gets acquitted of this gun case, you don't get paid, right? A I guess so. 1641 Following this exchange, Fadeley testified that he did not know how much money he would be paid if Weaver were convicted and insisted that the amount of any future award had no impact on his testimony. 1642 On April 20, defense counsel Spence moved in open court to strike the testimony of Fadeley and to dismiss all counts of the indictment based upon the Fadeley testimony. Spence argued that Fadeley was a contingent fee witness and that it was unlawful to permit such testimony to be used at trial. 1643 Howen denied that Fadeley was a contingent fee witness and argued that Fadeley's testimony regarding any future compensation that he might receive was partially based on his confusion regarding money Fadeley might receive in the future under the witness protection program to compensate for "any differential or loss to him in either his job, his home, or other items."1644 Howen then represented that BATF Agent Byerly, who communicated with Fadeley regarding financial compensation, would testify that Fadeley was paid for expenses and then was told that he "could be held for an award at a later time."1645 Howen maintained that such an arrangement did not constitute a contingent fee agreement. Thereafter, the court took the matter under advisement but declined to declare a mistrial. 1646 The government recalled Byerly to address the Fadeley compensation issue. Byerly testified that Fadeley was neither an agent nor a salaried employee of BATF. He explained that he had made an agreement with Fadeley whereby Fadeley would be reimbursed for his necessary investigative expenses associated with attending the Aryan Nations summer conferences in 1986, 1987 and 1989 and that for the entire period that Fadeley was assisting BATF, he was paid expenses of $445. In addition, Byerly testified that he had informed Fadeley that he could receive an award after a case was completed. Byerly stated, "I explained to Mr. Fadeley that at the end of the case, whatever it might be, at the end of the judicial proceedings that I would submit his name to my supervisors for an award." 1647 According to Byerly, his recommendation would be reviewed by several layers of supervisors who could approve, increase or reduce the award. Byerly insisted that the award was not influenced by the outcome of a case and that he had never informed Fadeley otherwise. 1648 Indeed, Byerly testified there were instances where informants received awards for work on cases that were never prosecuted. 1649 In another case in which Fadeley assisted but which was not prosecuted, Byerly recommended an award of $2,500. 1650 He said that he anticipated that he was going to recommend that Fadeley receive an award of $3,500 for his work on the Weaver case. Byerly insisted that Fadeley was mistaken if he believed that the award was contingent upon there being a conviction in the case. 1651 On April 21, defense counsel filed a motion to strike the Fadeley testimony arguing that it was improper because Fadeley had been promised a contingent fee if Weaver were convicted. In addition, they complained that the prosecutors had an obligation to disclose this arrangement to the defense prior to trial but had failed to do so. Moreover, they argued that the government's denial that Fadeley had been paid any fee constituted misconduct. 1652 In its response, the government denied that a contingent fee arrangement existed between BATF and Fadeley and then repeated its argument that Fadeley's responses were affected by his confusion over financial benefits he might receive under the witness protection program. Howen also denied having prior knowledge of the possible monetary award from BATF. 1653 Judge Lodge ruled on the motion to strike on May 17 and found that although "Fadeley believed that he was involved in a contingency fee arrangement," the testimony of agent Byerly indicated that the government did not intend for a contingency fee arrangement to exist. 1654 Consequently, the circumstances did not exist to warrant the striking of the Fadeley testimony. However, Judge Lodge ruled that a cautionary instruction regarding how to evaluate the credibility of Fadeley would be appropriate. 1655 On May 19th, the Government informed the defense of the amounts that Fadeley had received for expenses, and awards and the amount of the proposed cash award. 1656 Howen told investigators that he was terribly surprised and embarrassed by the Fadeley disclosure. 1657 He insisted that the first he learned of the possible award was when defense counsel elicited it on cross examination. Prior to that time, Howen understood from Byerly that Fadeley received no salary and had only received reimbursement for expenses. Nothing seemed unusual about that arrangement to Howen for several reasons: Fadeley wanted to assist law enforcement because his close friend on the Spokane Police force had been killed while on duty; Fadeley viewed his cooperation as a civic duty; and Fadeley simply enjoyed undercover work. Howen could not recall whether he ever questioned Fadeley about the compensation issue but stated that if Fadeley had disclosed the possibility of a future award, he would have disclosed it to the defense. Although this was the first time that Howen had heard of such future awards, he admitted that he probably should have asked Byerly more probing questions concerning Fadeley's understanding regarding the possibility of future compensation. 1658 Howen questioned Byerly again after Fadeley had testified. Based on this conversation, Howen understood that the future award was not contingent upon convicting Weaver, but rather, upon the recommendation given by Byerly. This recommendation was influenced by the assistance that Fadeley had provided on all the cases, including Weaver, in which he was involved. Byerly could not explain why he had failed to disclose the possible award earlier. Howen said Byerly was very apologetic for not disclosing the understanding to Howen. 1659 Byerly said that Howen had met with Fadeley on at least two occasions when Byerly was not present and, as a result, "was under the false assumption that AUSA Howen had discussed with [Fadeley] any financial arrangements that he...had discussed with ATF." 1660 Byerly insisted that he did not intentionally withhold information about the award from Howen and that if Howen had asked whether any compensation would be paid at the end of the case, that he would have told him about his intention to recommend an award for Fadeley. However, from Howen's questions, Byerly thought that Howen was seeking information about monies already paid to Fadeley rather than monies that might be paid in the future. 1661 When Department of Treasury investigators questioned Fadeley about his trial testimony, he told them that he had misspoken regarding his understanding of whether he would receive a monetary payment in the Weaver matter. Fadeley stated that Byerly had told him that "there would be some unspecified payment at the end of a case" but that the payment was never linked to whether a case went to trial or a conviction being obtained. It was Fadeley's understanding that the payment would be based upon the work that he performed and the information that he obtained in the case. Fadeley attributed his misstatement to being "tired" and having lost his "focus and attention."1662 Fadeley stated that he met with Howen on many occasions before testifying at trial. At none of these sessions did Howen question him about the compensation he was receiving. Thus, Fadeley was surprised when he was questioned about this topic by the defense and was disappointed that Howen had not questioned him on redirect to clarify his understanding regarding any future payment he might receive. 1663 c. Late Production of the Halley Notes After Deputy Marshals Cooper and Roderick were escorted from Ruby Ridge, they and Deputy Marshals Norris, Hunt and Thomas were taken to a condominium on Schweitzer Mountain to rest. On the afternoon of August 22, FBI Special Agents Joseph Venus and George Halley interviewed Cooper at the courthouse at Bonners Ferry, Idaho. According to Calley, Venkus asked the questions while Calley was responsible for taking notes. Calley told investigators that what started as a question and answer style interview, evolved into Cooper giving a narrative statement of events. Calley complained that he had difficulty keeping up with Cooper and, as a result, he left blanks in his interview notes with the intent of returning later to fill in the missing words. 1664 Shortly after the interview, Calley prepared a one or two page handwritten summary of the sequence of events recounted by Cooper. Then, using his handwritten notes of the interview, Calley prepared a rough draft of the FD-302 of the interview. 1665 As one of the three marshals involved in the August 21 shootings at Ruby Ridge, the testimony of Cooper was critical to both the prosecution and the defense. The FD-302 of Cooper and the handwritten notes of that interview became very controversial documents in the Weaver case because certain entries in those documents were in error and conflicted with the subsequent testimony of Cooper. 1666 Cooper first discovered these errors when he reviewed a draft of the document. 1667 For example, Cooper insisted that he had not shot Sammy Weaver. He consistently maintained that, after Harris had fired the shots that hit Degan, he fired a three-round burst at Harris, who fell to the ground "like a sack of potatoes." Cooper then directed his weapon on Sammy, but did not shoot him because he could not see if Sammy was carrying a gun and because Sammy had not fired at Degan. Later, Cooper fired a second three-round burst at no particular target, but in the direction from which he had last received fire. After he took these shots, Cooper saw Sammy running out of view and up the trail leading to the cabin. 1668 Calley insisted to investigators that he never recalled Cooper ever stating or suggesting that he shot Sammy Weaver. 1669 However, in his handwritten notes of the interview, Calley wrote that Cooper said that after he had fired his second round burst of three shots, he saw Harris proceed on the trail. Halley told investigators that this was an error on his part and that Cooper had said that it was Sammy Weaver, not Harris, that he saw going up the trail. 1670 Indeed, Venus confirmed that Cooper was convinced that he had shot Harris. 1671 Calley told investigators that Cooper did not waiver when recounting the events of August 21, 1992 and to the extent that mistakes existed in the FD-302s, these mistakes were his fault. He attributed these errors to either fast note taking or plain error in writing his notes. 1672 Calley prepared two final FD-302s of the Cooper interview; the first was dated August 29, 1992; and the second was dated August 30, 1992. He placed his interview notes and the rough drafts 1673 in a 1-A envelope 1674 and sent them to files. According to Venkus, Calley began taking notes of the Cooper interview on a yellow note pad. When Calley ran out of paper, Venkus gave him a white note pad on which to continue his notes. Thereafter, Calley drafted that 302 of Cooper on a white note pad. Calley placed all of the Cooper interview notes that were written on yellow paper in the "1-A" envelope belonging to the Cooper 302 file. However, he placed that portion of the interview notes that were written on white paper together with the handwritten draft of the Cooper 302 in another file folder. Venkus speculated that Calley forgot that he had used two different kinds of paper in the Cooper interview and, thus, assumed by placing all of the yellow sheets in the 1-A file that it constituted a full set of interview notes. 1675 On September 3, 1992, the USAO requested the FBI to produce "[a]ll 302's involving the interviews of Deputy Marshals Hunt, Norris, Thomas, Cooper and Roderick, together with draft 302's, altered 302's and notes of interviewing agents." 1676 Before the trial began, the USAO produced the two final Cooper FD-302 interview statements 1677 and the 12-page set of rough notes of the August 22 interview of Cooper. 1678 In late May 1993, 5 weeks after the trial had started, Calley discovered the missing portions of his interview notes and the draft 302 of Cooper in his desk. 1679 Calley immediately informed Venkus who contacted Howen. Thereafter, Calley was told that Howen would call him within 30 minutes to discuss the notes. It was one to two days later that Deputy Marshal Masaitis requested Calley to come to the federal building to explain the notes and why they were discovered late. Calley stated that although Howen was present, he appeared preoccupied with other matters and left most of the interview to Masaitis. 1680 Howen believed that Dillon or one of the case agents informed him of the discovery of the notes. Dillon told Howen that Calley had found the notes in his desk and had forgotten to place them in the 1-A envelope belonging to the Cooper FD-302. Howen recalled that Dillon indicated that if you examined the notes and compared them with what had already been produced, it was obvious that the notes were the missing parts of what had previously been produced. Howan stated that his initial reaction to the disclosure was that he could not believe it. Because of the demands of the trial, Howen produced the notes to the defense without reviewing them closely. 1681 Neither Howen nor Dillon thought that Calley intentionally concealed these notes. 1682 Howen recalled Calley being extremely apologetic. Howen believed that it was just an "honest mistake." 1683 On May 21, Howen produced the newly found Calley notes to the defense. 1684 This production occurred several days after the Fadeley compensation controversy had erupted and the same day in which Howen's interview with Captain David Neal was disclosed. 1685 Defense counsel Spence argued that some of these notes were written by Cooper, not Calley, because the handwriting was different and because it was not written in the third person. 1686 The court then stated: The Court is going to say that the Court is very disturbed by what has happened here or what appears to have happened here, because in this instance, the Court does not think counsel should make representations to the Court that they do not know. If these are, in fact, partly the notes of Mr. Cooper, that is the way they should be referred to. If they are the notes of someone else, they are the notes of someone else. They should have been disclosed as soon as they were found, and when they are found in the desk drawer, that seems to me like maybe it is one of the most logical places to be looking, whether they be Mr. Cooper's notes or somebody that has been interviewed by Mr. Cooper. The blame probably trickles down beyond the U.S. Attorney's office. 1687 The court then expressed extreme concern over the untimely disclosure of Howen's interview with Captain Neal and ruled that he was continuing the trial until Monday, May 24 to permit the defense time to interview Captain Neal. 1688 When the trial resumed on May 24, defense counsel Spence argued that Cooper should be returned to the stand in light of the recent production of the Calley notes which Spence argued were partially authored by Cooper. Howen objected to this request and represented that all of the notes were written by Calley, not Cooper, thus nothing could be accomplished by recalling Cooper. The court took the matter under advisement. 1689 d. Neal Notes A pivotal issue in the Weaver trial was who fired the first shot at Ruby Ridge on August 21, 1992. The government argued that it was Kevin Harris while the defense maintained that it was Deputy Marshal Roderick when he shot the Weaver dog Striker. Because of the importance of this issue to the defense case, any information that the government had regarding this issue, including pertinent statements made by Roderick, was obviously important to the defense and required to be produced under the Brady and Jencks doctrines. On April 23, 1993, the court recessed the trial until May 3rd. During this recess, Howen attended to matters that he had been unable to reach earlier, including the interviews of some of the officers on the Critical Response Team ("CRT") of the Idaho State Police. 1690 The next day, Howen interviewed Captain David Neal, commander of the CRT, and other members of the CRT who rescued the three marshals on the night of August 21, 1993. 1691 No other investigative team member accompanied Howen on these interviews. 1692 Neal stated that during the interview, Howen was interested in whether it was the normal practice of the CRT to wear camouflage clothing when responding to an incident. Later, Neal told Howen that the first thing that Roderick said to him was that, "I shot the dog." Based on his discussion with Roderick on the night of August 21, Neal told Howen that it was his impression that the shot fired by Roderick, which killed the dog, was the first shot fired at the Y. According to Neal, Howen took notes and remarked that this information would have to be given to the defense. 1693 When investigators from this inquiry questioned Howen about the Neal interview, he recalled that Neal had told him that when he had questioned Roderick about what had occurred, Roderick had responded that he shot the dog. Howen did not interpret the Neal statements as indicating that Roderick had communicated that he had shot the dog first before any other shots were fired. 1694 However, Howen acknowledged that there was the "potential" for one to argue that perhaps Roderick was indicating that he had shot the dog first. To clarify this issue, Howen planned to elicit testimony from a few CRT officers which would shot that the Roderick comment did not indicate the sequence of the shots fired, but rather, was simply an admission by Roderick that he had shot the dog. Howen believed that such an approach satisfied his obligations under the Brady doctrine. 1695 He recalled informing Lindquist of the substance of the substance of the Neal interview and of the possibility that the defense would attempt to undermine the Roderick testimony regarding the sequence of the shooting. 1696 Late in the afternoon of May 20, almost four weeks after the Neal interview, Howan informed defense counsel of the substance of the interview and provided them with a copy of his interview notes. At that time, Roderick had begun to testify. On the next day, defense counsel Nevin argued to the court that this disclosure was "pivotal" to the defense case 1697 and was in distinct conflict with the government's argument that Kevin Harris fired the first shot. 1698 Thereafter, defense counsel requested the court to recess the proceedings and to permit them the opportunity to interview Neal to determine the full extent of his testimony. 1699 Howen responded that he had disclosed the names of the CRT members long before the trial started and that he had not had an opportunity to interview them until the recess in April. 1700 Howen then stated: As counsel states when I talked to. . . Captain Neal, he made certain statements to me about Mr. Roderick coming forward. He was not able to put them in a sequence, his best recollection was because they were standing right next to the dog. Mr. Roderick made a comment that he had shot the dog, and then there was an inquiry about how Mr. Degan had died, and Mr. Degan had died over here. 1701 Howen then explained to the court that he was making the disclosure now because he had realized that he might not be calling Neal as a witness and "felt compelled to reveal this matter to defense counsel so they could examine him, which is what I did yesterday." 1702 Lindquist represented to the court that Neal had not indicated to Howen any chronology as to when he shot the dog and that the first time that Howen had heard this information was during the interview. Although Lindquist conceded that the information disclosed in the Neal interview constituted Brady material, he disputed that it was "pivotal." 1703 After expressing its concern over learning about the newly discovered notes of Special Agent Calley, the court stated, The thing that is even more disturbing to the Court is whether or not this chronology of events with Mr. Neal was known about three weeks ago, because obviously we are talking about Brady material rather than Jencks [sic] material. It is exculpatory if it is even questionable about what was said by Mr. Roderick shortly after the event. It is critical to a fair hearing to have this ferreted out and known about before there is any further direct or cross-examination by Mr. Roderick. We have asked these jurors to come in here and we are taking two months out of their lives. Sometimes we pass off as cavalier the time of judges, the judges being the jurors, and it is totally inexcusable when we have to do what the Court is going to have to do today, and that is delay this trial over until Monday. The Court has felt during this trial that there has been a lot of pressure on counsel. That there have been all kinds of things coming onto the Court's desk from both sides almost every day, from activities that you do through the night, and it is apparent that some things can be overlooked, some things may be not seen as important as they are, but this to the Court is a very embarrassing situation. The Court wants both sides to take stock of what has happened here and make doubly sure that this does not happen the rest of this trial. [FN1704] On May 21, defense counsel Peterson and an unidentified individual interviewed Captain Neal. Neal described his rescue of Roderick and the statement that Roderick made that he had shot the dog. Neal stated that he was careful to explain that it was his impression that Roderick shot the dog first, but that Roderick never said, nor admitted that he shot the dog first. Thereafter, defense counsel told Neal that they would be calling him as a witness. [FN1705] According to Howen, he made the disclosure to the court and the defense on May 20, because he realized that, due to pressure from the court to complete the trial, he was not going to have time to call all of the witnesses that he had originally planned. He decided not to call Neal as a witness but recognized that the defense might want the opportunity to question Neal. When asked if he considered the Neal interview to constitute Brady information, Howen responded, "[c]lose to it. Yeah." [FN1706} He explained that he had not disclosed the information sooner because he had planned to question Neal on direct and to make it clear that the Roderick statement did not relate to the sequence of the shooting. He believed that bringing such information out on direct examination complied with Brady, especially when he had already informed the defense that Neal was a potential witness and the defense could have interviewed him. [FN1707] Lindquist recalled Howen calling him shortly after completing the Neal interview, relaying the substance of what Neal had said and then expressing the view that perhaps the information could constitute Brady material. Lindquist, who could not recall exactly what Neal was reported to have said about the Roderick statements, opined to Howen that they should treat the statements as Brady and produce them to the defense. He recalled Howen stating, "well, I agree and I just. . .wanted to hear you say it. . . ." Although he could not recall the reason why this information was not disclosed until three weeks after the interview, [FN1708] Lindquist stated that he was not concerned about the delay because he thought that the information was marginally Brady and that the delay was not intentional. He attributed the delay to a simple oversight caused by the intense demands imposed by the trial. [FN1709] Lindquist did not specifically recall Howen attributing the delay to his initial plan to elicit the testimony from Neal on direct, but opined that it was consistent with what he recalls of their discussions during this period. Lindquist did not think that such a theory violated either the Jencks Act or the Brady rule. With regard to the Brady rule, Lindquist first opined that such information should be produced "with diligence" but then stated that revealing the information on direct would satisfy Brady, especially if there was no prejudice to the defendant. [FN1710] e. The L-1 Bullet and L Bullet Photographs On August 31, 1992, FBI Special Agent Larry Wages participated in the collection of evidence at the "Y" at Rudy Ridge. Also participating in the search were Special Agents Cadigan, Taister, and Grover from the FBI lab. [FN1711] As evidence was located, it was marked with a flag, given a letter designation, marked on the evidence diagram and then was photographed. [FN1712] During the search, Wages later became known as the "L-1" bullet to the FBI and the "pristine" or the "Magic" bullet to the defense. Wages recalled that, pursuant to his request, Cadigan photographed the bullet. However, later, Wages realized that he needed to obtain a letter designation from the photographer and then to have a new picture taken with the letter designation. Despite his efforts, Wages was unable to find a photographer. [FN1713] In the middle of the morning, Supervisory Special Resident Agent Dillon informed Special Agent Gregory Rampton that they believed that Weaver would surrender shortly and, in anticipation of the surrender, he wanted to hold a briefing to discuss the expected search of the Weaver cabin. Thereafter, Rampton sent a messenger to the Y to instruct Wages to end the search and return to the command post for a briefing. [FN1714] Because Kelly Kramer, the photographer, was still unavailable to assign letter designations to the bullets and then photograph them, Wages placed flags where the bullets were located, placed each bullet in a plastic bag and took them with him to the briefing. [FN1715] When Wages arrived at the command post, he showed Rampton the bullet, which subsequently became known as the "L-1" bullet.[FN1716] After the search of the cabin was completed, Wages returned to the Y, replaced the bullets at the locations of the flags and then had Kramer photograph the bullets in place.[FN1717] To account for the fact that he had removed evidence, Wages indicated in his log that the search terminated after the search at the cabin. [FN1718] On January 8, 1993, defense attorneys Spence and Matthews had an opportunity to examine the physical evidence collected by the government. The L-1 bullet was among the evidence reviewed. When Special Agent Rampton told them that the "L" bullet may have been fired from Sara Weaver's mini 14 rifle, [FN1719] Spence reportedly accused the FBI of having "staged" the evidence since the bullet had very few markings on it and the photograph of it showed it simply laying on the ground. Rampton responded that the evidence could not have been staged since the bullet was found before the seizure of Sara Weaver's gun. To support his argument, Rampton checked the search log completed by Wages. However, when Rampton read the log, he noticed that it indicated that the "L" bullet was discovered on August 31, during a search that began at approximately 9:40 a.m. and ended at approximately 6:00 p.m., which was after Weaver had surrendered and the mini 14 rifle had been seized. Rampton told Spence that he would review the investigative notes of Wages to resolve the issue. Thereafter, Rampton examined the investigative notes of Wages, which indicated that the search at the Y concluded at 11:00 rather than 6:00. To resolve the discrepancy, Rampton called Wages and explained the issue. Wages then explained to Rampton the complete circumstances surrounding the photographing of the L bullet. [FN1720] Rampton told investigators that after his conversation with Wages, he called defense counsel Peterson and "explained the situation concerning the 'L' bullet." In addition, he called Howen and Lindquist and explained the entire matter to them, including how the L bullet was photographed and the allegations made by defense counsel Spence that the evidence had been staged. According to Rampton, Howen and Lindquist "noted the incident without apparent concern." [FN1721] Howen, however, did not recall Rampton explaining how the L photographs were taken or informing him that he had any discussions with defense counsel Peterson about how the photographs had been taken. [FN1722] Lindquist also did not recall discussing this issue with Rampton during this time period, although he did recall the issue coming up later. [FN1723]Rampton prepared no reports of interview indicating that he had provided this information to anyone in the USAO or to defense counsel. Howen did admit that Wages informed him about the circumstances surrounding the photographing of the L bullets during an April 1993 pretrial interview. Howen made a note of this disclosure in his notes; Wages requested and received a copy of these notes from Howen immediately after their discussion. [FN1724] At the time, the disclosure did not strike Howen as "significant" and he forgot about this information until talking to Wages in May 1993 before Wages was to testify at trial. At that time, Wages reminded Howen of the L-1 bullet and that it had been removed prior to being photographed. When Wages reminded him about this information, Howen decided that he could not use the photographs to represent to the jury that this was how the evidence was found. Howen recalled that it was at that time that he informed the defense and that after he made this disclosure, Wages reminded him that he told Howen about the pictures in April. Howen then reviewed his early April 1993 notes and confirmed that Wages was correct. [FN1725] Wages and Rampton provided a slightly different version of events. They insisted that when Wages reminded Howen in May 1993 of the circumstances surrounding the photographing of the L-1 bullet, Howen immediately questioned if he had been informed earlier. Wages and Rampton then produced Wages' copy of Howan's earlier notes as proof. According to Rampton, when Howen was presented with his notes, he just stared at them. [FN1726] This conversation occurred before Howan disclosed the information to the court. In addition, Wages stated that although he had told Howen in April that all of the photographs of the L bullets had been taken in the same manner, he forgot to remind Howen of this in May at the time he was preparing Wages to testify. Thus, when Howen informed the court that the L-1 bullet had been removed before being photographed, Wages had to tell Howen that the other L bullets also fell into that category, thus requiring Howen to go back to the court and provide the defense with this information.[FN1727] In addition, during this time period, the case agents discovered two packages of photographs in a case storage area that had been overlooked. It appeared that some of these pictures were of the L series bullets and had been taken before Wages had removed them. The record provides support for the version of events detailed by Wages and Rampton. On May 25, Howen told the court that the agents had notified him that they had discovered a packet of search photographs, including pictures of the L series bullets, that had been stored at another location. Howen stated that they would produce these photographs to the defense later that day. [FN1728] After the luncheon recess on May 25, defense counsel Spence complained about the late production of the photographs and argued that they should have been produced earlier in discovery. [FN1729] Howen argued that discovery was a continuing obligation and that he was producing materials as soon as he learned of them. He then stated, "I came to find out a couple of days ago, maybe a week or so ago, the photograph identified with the L-1 bullet was not as it was found. As a result of that, I was not going to use that particular photograph."[FN1730] In response to defense questions, Howen briefly explained that the bullets had been removed and then replaced later before the photographs were taken. From their subsequent remarks, this was obviously the first time that defense counsel Nevin and Spence had learned about the circumstances surrounding the photographing of the L bullets. [FN1731] Howen told the court that due to how the L series photographs had been taken, he did not believe that it would be appropriate to offer them into evidence. In addition, he seemed to indicate that some of the photographs produced that morning had been taken by either Michael Taister or Cyrus Glover before the bullets were removed but that Larry Wages, the testifying agent, had not been present during the taking of these photographs and thus was unaware of them. [FN1732] Howen then explained that Wages had removed the bullet when a photographer was unavailable and later had returned with a photographer to take the picture.[FN1733] Following an afternoon recess, Spence complained that Howen had just informed him that the entire "L" series of photographs--not just the L-1-- had been photographed after the bullet or bullet fragment had been removed and then replaced. Spence then recounted the recent untimely disclosures that the prosecution had made, including the Neal interview and the Cooper interview notes. With regard to the L series photographs, Spence maintained that they constituted Brady material that should have been disclosed "long ago" and requested the court to impose sanctions against the government and to inform the jury of what had occurred. [FN1734] Defense counsel Nevin echoed the concerns articulated by Spence. [FN1735] Howen accepted responsibility for the late production of the photographs and told the court that it was not until the lunch recess that he was advised that the entire L series, not just the L-1 photograph, had been taken after having been removed and then replaced. Howen argued that he had produced the materials as soon as he became aware of them and that he did not believe that the defense request for sanctions was appropriate. [FN1736] The court accepted Howen's representations that the information and the photographs had been disclosed as soon as they had been discovered and refused to impose sanctions or to inform the jury as requested by the defense. [FN1737] Two days later, Larry Wages testified and described the August 31 search at the Y and explained that the items seized were given the designation of "L". He then testified that in the early afternoon, he was informed that Mike Dillon wanted him to go to another area. Because the bullets had not been photographed with a letter and number designation, Wages decided to take the evidence with him. Thereafter, he picked up the L-1, L-2 and L-3 bullets, marked the location where the bullet had been with a wire flag or a piece of wire, placed the bullets in a plastic bag, labeled them and then took them with him. At about 6:00, he returned to the Y, replaced the bullets, and had Kelly Kramer, the photographer, take a picture of the bullets with the letter and number designation. [FN1738] Towards the end of the direct examination, Howen asked Wages a series of questions about how Howen learned the circumstances surrounding how the L series photographs were taken. Wages testified that he had first discussed this subject with Howen about one week before the trial started, that Howen had taken notes of this discussion and that Wages had reminded Howen of this conversation during the weekend preceding Wages' scheduled testimony. [FN1739] Based on comments that defense counsel made later that day, it appears that Howen had not notified defense counsel about his prior knowledge until the previous night when he had agreed to inform the court of this knowledge. [FN1740] On cross-examination, Wages admitted that he had not marked the direction in which the bullet was pointing and, thus, he may not have replaced it in exactly the same position. In addition, Wages testified that Rampton had called him sometime in early January 1993 and inquired why the search times on the 302 that he had prepared on the search and the search times on pertinent documents did not agree concerning the time that the search ended. At that time, Wages explained to Rampton the circumstances surrounding the taking of the photographs.[FN1741] f. The Late Production of the Shooting Incident Report and Supporting Materials and the October 26, 1993 Court Order The circumstances surrounding the late production of the subpoenaed version of the shooting incident report and supporting materials were discussed earlier in Section IV (M) of this report. One of the newly produced documents included a diagram of the Weaver cabin prepared by HRT sniper Horiuchi which detailed the second shot that Horiuchi took on August 22, 1992. As a result of this late disclosure, the court ordered Horiuchi to return for additional cross examination and imposed sanctions on the Government by requiring it to pay the court costs and attorneys fees caused by the delay. The adverse impact of this disclosure was intensified by the fact that it followed the embarrassing series of late disclosures by the government which have been detailed in this section. Almost four months after the jury returned its verdict, Judge Lodge issued an order imposing a $1920 fine against the FBI. This fine represented the attorneys fees paid to defense counsel when Horiuchi returned for cross examination. In this order, Judge Lodge criticized the FBI efforts to produce the discoverable materials, including Jencks and Brady documents and stated that one of the primary reasons that a continuance of the February 2, 1993 trial date was necessary was because of the failure of the government to produce certain critical items of evidence such as the ballistics evidence and the weapons seized. He then stated: In hindsight, it is clear that even prior to this meeting, the Assistant United States Attorneys Howen and Lindquist were receiving less than full cooperation from the FBI and that items of evidence were not being produced timely. It later became clear that a pattern of delay and lack of cooperation was manifesting itself despite the efforts of the local Assistant United States Attorneys. Once the items and information were received in the local office of the United States Attorney, Howen and Lindquist continually assured the court that they were producing the materials for the defense as quickly as arrangements could be made. [FN1742] Judge Lodge recounted the incidents when the Government had been late in producing discoverable material during the Weaver trial. First, he noted that seven of the addenda to the government's discovery response, which were filed on the eve of trial and during the trial, contained FBI materials. [FN1743] Next, the court discussed the late disclosure of the Calley notes, the Neal interview, the package of photographs taken by the FBI and the circumstances surrounding the taking of the L series photographs. The final offending incident was the late production of the shooting incident materials in response to the defense subpoena. [FN1744] After discussing the importance of discovery to the rights of the defendant and the obligation of the government to produce such materials, including Brady materials, as quickly as possible, the court stated: Here, the FBI failed to produce materials in a timely fashion. They failed to provide Jencks and Brady materials. They failed to obey orders and admonitions of this court. Their failures necessitated the initial continuance of the trial of this matter. Once the matter had begun, their continued failures necessitated continuous discussion between court and counsel and continuous prodding of the FBI by the court. The culmination of this was the late receipt of the Horiuchi materials..... The failure to provide the Horiuchi materials was the latest transgression in a series of transgressions. This failure occurred on day 33 of a trial at which the government presented evidence at total of 37 days. At the time of the Horiuchi material incident, it was unclear how much longer the government would be presenting its case. The court was concerned with the length of trial for a host of reasons, not the least of which was the fact the court was the only active judge in the district, responsible for matters in Coeur d'Alene, Moscow, and Pocatello, Idaho, and all administrative matters in the district. In this light, the FBI's recalcitrance was especially frustrating. The court had an obligation to the defendants to ensure they had all the materials to which they were entitled and an obligation to the federal litigants in the District of Idaho to keep the calendar moving. The actions of the FBI impeded the court in both of these areas. With no idea as to how much information was yet to be divulged by the FBI, and no idea how much longer the government's case in chief would take, the failure to produce the Horiuchi materials forced the court's action. Previous orders and admonitions had proved to be of no value. Accordingly, the court had no option but to impose a sanction both as punishment for ignoring previous orders and to secure compliance and cooperation during the remainder of the trial. [FN1745] Thereafter, the court concluded that the FBI had failed to comply with its discovery obligations under Rule 16 and found the FBI to be in contempt of court in violation of 18 U.S.C. 401. In support of its ruling, the court held: The FBI was a principal participant in the Weaver/Harris criminal proceeding. Its behavior served to obstruct the administration of justice in that proceeding. Its behavior brought about the delays and countless arguments outside the presence of the jury. These delays and arguments, which obstructed the progress of the trial, would not have been necessary had the FBI acted as it had been directed to act. The failure to act occurred in the courtroom where the government, through its agent, was directed to act. All performance by these government agents revolved around this court and this trial. All work performed by the [sic] these agents directly impacted these defendants. The actions of the government, acting through the FBI, evidence a callous disregard for the rights of the defendants and the interests of justice and demonstrate a complete lack of respect for the order and directions of this court. [FN1746] 3. DISCUSSION a. Response of the Government to the Defense Subpoena for FBI and Marshals Service Manuals and Personnel Files Issues were raised during our investigation as to whether the government responded appropriately to the defense subpoenas seeking the production of the FBI and Marshals Service manuals and certain personnel files. With regard to the response of the government to the production of the manuals, we find their efforts to be acceptable. The Marshals Service produced these materials immediately to the USAO when the issue first arose. Although the FBI did not produce their manual provisions until later, their response time does not seem unreasonable to us considering the contemporaneous efforts of Howen to resist production by the filing of a protective order. We are somewhat troubled, however, by the response of Howen in November 1992 to the request of defense counsel Peterson for the FBI manual. Although not worded exactly the same as the request in the subpoena, Peterson was clearly asking for the same FBI manual provisions in November. At that time, Howen declined to produce these items for one or two reasons--either the provisions were not in his possession or they were not discoverable. We think that the manual provisions were clearly discoverable. The actions of the FBI sniper on August 22, 1992 were pertinent to the charges lodged against Weaver and Harris. With regard to the explanation that Howen did not have possession of the materials and, thus, could not be expected to produce them in discovery, we find such an excuse to be unpersuasive and without legal merit. Pursuant to Fed. R. Crim P. 16 (a) (1) (C), the government is obligated to produce upon request discoverable materials that "are within the possession, custody or control of the government." This obligation is not limited to the materials within the possession of the prosecutor but rather, extends to all materials over which the prosecutor has knowledge and access. See United States v. Bryan, 868 F. 2d 1032, 1036 (9th Cir.), cert. denied, 493 U.S. 858 (1989). A prosecutor is "deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant." Id. To conclude otherwise would "unfairly allow the prosecution access to documents without making them available to the defense." United States v. Robertson, 634 F. Supp. 1020, 1025 (E.D. Cal. 1986), aff'd, 815 F. 2d 714 (9th Cir.), cert. denied, 484 U.S. 912 (1987). Howen, as the prosecutor in the case, was responsible for coordinating the government's response to its discovery obligations. The fact that Howen did not have physical possession of an item did not erase his responsibility to produce clearly discoverable material. Hiding behind such an excuse is contrary to the legal obligation of the Government, does a disservice to the court and the defense and reflects adversely on the Government. [FN1747] Turning to the response of the government to the defense subpoena for the personnel files, we note at the outset that the court expressed concern over the manner in which the FBI responded to the subpoena for the Horiuchi personnel file but made no mention of the response of the Marshals Service to a similar subpoena for the personnel files of the marshals at Ruby Ridge on August 21, 1992. As framed, the subpoenas requested the complete personnel files of the named individuals. We find that the protective order sought by the government was solidly based in the law. Indeed, the court ultimately concluded that a Henthorn review rather than production of the entire personnel file was an adequate response to the request. With regard to the speed with which the FBI responded to the request, we cannot fault their actions. There was a legitimate basis to support their refusal to produce the complete personnel file. Once they were instructed to complete a Henthorn review, they did so expeditiously in several days. We do not understand, however, why it took the USAO eleven days to produce these certifications to the defense. Thus, to the extent that this production can be considered to have been untimely, the USAO must accept partial responsibility. One final matter deserves comment. In its order, the court criticized the government for not disclosing the defense that the personnel files did not contain exculpatory information. The court seemed to suggest that the government had the obligation to conduct the Henthorn review without a prior defense request. While we appreciate the rationale of the court's ruling and accept its conclusion, we think that the law is not sufficiently clear on this point to justify criticizing the government. Although we concur that the defense is entitled to receive Brady material without a specific request, we are not comfortable in concluding that the government, without a specific request for the personnel files, must provide a Henthorn certification to demonstrate that the examination has been done. b. Failure to Disclose Financial Compensation Arrangement with Informant Fadeley There can be no doubt that the defense was entitled to have been informed that Fadeley might receive an award for his work on the Weaver case. Although we find the government responsible for this failure to provide critical information to the defense, we do not believe that the omission was improperly motivated. Notwithstanding this conclusion, we are seriously concerned that BATF Agent Byerly failed to inform Howen of this potential award and, to a lesser extent, that Howen failed to be more aggressive in attempting to ascertain if other compensation arrangements existed. With regard to the role of Howen in this incident,it is our sense that he did not probe as deeply as he should have into the financial promises or representations that Byerly made to Fadeley. Once he learned that Fadeley had been paid expenses but no salary, Howen rested his inquiry. Although Howen had no prior knowledge of BATF having such an awards policy, we think that a prudent prosecutor would have pursued the subject further. Indeed, as a prosecutor who had a healthy discomfort with using informants and an appreciation for the attacks that the defense can wage against questionable compensation arrangements, we would have expected Howen to have been more thorough in his efforts to ferret out this information. However, in fairness to Howen, this request for information came on the eve of trial, at a time when he was frantically preparing for opening statements as well as attending to other critical trial preparation tasks. It is for this reason and others that we assess the primary responsibility for this incident on Byerly. We have difficulty understanding the reasons why Byerly was not more forthcoming with this information. All indications that we have received was that Byerly had always been an extremely cooperative and helpful member of the prosecution team. As an experienced agent who had used informants on prior occasions, we are confident that he appreciated the common pitfalls attendant to the use of informants with one of the most notable being the compensation arrangement. That Fadeley had received an award in the past and that he had been told that he might receive an award in the future for the assistance that he provided in the Weaver case was significant information that Byerly should have conveyed to Howen. However, Byerly failed to do so. We find it to have been unreasonable for Byerly to have withheld this information when Howen failed to pose an exact question to elicit it. Rather, we would have expected Byerly, as a member of the team, to have volunteered it. Similarly, we have not persuaded by Byerly's argument that he assumed that Howen had learned of the award during his meetings with Fadeley. For Byerly to have relied on such an assumption was neither reasonable not prudent. Indeed, in our view, Byerly should have raised this important subject with Howen to ensure that his assumption of knowledge was correct. The late disclosure of the Fadeley compensation arrangement was extremely embarrassing to the government and provided one of the early suggestions that the government was not being totally forthcoming with the information that it was providing to the defendants. Apart from the problems associated with the late disclosure of the Fadeley information, we are troubled by the award system which appers to be in place at BATF. We are concerned, as were the members of the USAO,[FN1748] that such an award of future compensation comes dangerously close to being a contingent fee arrangement. It would seem difficult to honestly believe that an informant who knew that he might be eligible for such an award would not think that the government would be anxious and pleased to receive information that would lead to the successful prosecution of a defendant. Even if knowledge of such an award would not cause an informant to tell a blatant untruth, it might affect his testimony in a manner adverse to a defendant. In addition to the impact that such an award might have on the truthfulness of an informant is the concern that such an arrangement between the government and an informant has the appearance of a contingent fee arrangement and casts the government in a negative light. It is for these reasons that we urge the BATF to reconsider continuing its practice of giving future awards to informants whom it has used. c. Late Production of the Calley Notes Five weeks into the trial and after the testimony of Deputy Marshal Cooper, Special Agent Calley found notes in his desk that he had taken during his interview of Cooper as well as part of his draft FD-302 of the interview. The USAO had specifically requested the FBI on September 3, 1993 to produce these notes, yet they did not do so. Responsibility for this incident must rest with the FBI. We do not think that Calley intentionally withheld or concealed the notes. From all accounts, Calley was surprised, embarrassed and apologetic about the incident. Rather, we find that the incident was attributable to carelessness on his part and perhaps to a failure of the case agents to carefully inspect the materials that were being produced to the USAO in discovery. all documents associated with the interviews of the marshals present at Ruby Ridge on August 21, 1992 were critical to both the prosecution and the defense. Indeed, such documents were among those that both sides were most anxious to review. Thus, we would have expected the FBI to have been more thorough in its examination of these materials before it produced them. Indeed, had the FBI reviewed the documents more closely, it would have noticed that the set of notes produced for Calley was incomplete. [FN1749] Similarly, we are somewhat perplexed why this file was not discovered during the initial search for responsible documents. One would think that the desk of the agent responsible for conducting the interview of Cooper would have been one of the first locations that would have been searched. d. Late Disclosure of the Neal Interview Under the rule articulated by the Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963), the prosecution has an affirmative duty to disclose to the defense evidence that is both favorable to the accused and material to either guilt or punishment. Failure to make disclosure of such evidence violates the due process rights of the defendant "irrespective of the good faith or bad faith of the prosecution." Id. at 87. The prosecution has the constitutional obligation to disclose such information even in the absence of a specified request from the defense. See United States v. Agurs, 427 U.S. 97 (1976). The prosecutor is only required to disclose materially favorable evidence. Evidence favorable to the accused is evidence which, if disclosed and used effectively, may make the difference between conviction and acquittal. United States v. Bagley, 473 U.S. 667, 676 (1985), citing, Brady v. Maryland, 373 U.S. 83 87 (1963) and Napue v. Illinois, 360 U.S. 264, 269 (1959). Evidence is material only if there is a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. at 682. A reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. See also Pennsylvania v. Ritchie, 480 U.S. 39 (1987). For example, evidence which supports an affirmative defense or corroborates the defendant's testimony is materially favorable evidence which must be disclosed. United States v. Hibler, 463 F. 2d 455, 459-60 (9th Cir. 1972). The prosecutor is not obligated to disclose all information in his case file which might be helpful to the defense, United States v. Agurs, 427 U.S. at 109-11, nor is he required to disclose "every bit of information that might affect the jury's decision." United States v. Little, 753 F. 2d 1420, 1441 (9th Cir. 1984). The prosecutor has no duty to disclose evidence which is neutral or inculpatory. United States v. Bryan, 868 f. 2d 1032, 1037 (9th Cir. 1989). However, if a prosecutor fails to disclose evidence that results in depriving a defendant of his right to a fair trial, that prosecutor has breached his "constitutional duty to disclose." United States v. Agurs, 427 U.S. at 108. It is for this reason that a "prudent prosecutor will resolve doubtful questions in favor of disclosure." Id. See Also United States v. Miller, 529 F. 2d 1125, 1128 (9th Cir.), cert. denied, 426 U.S. 924 (1976). Applying these standards to the information that Howen learned at the Neal interview, we must conclude that the information was subject to disclosure as Brady material as well as being a statement of Roderick that should have been produced as Jencks material. One of the critical issues in the case was who fired the first shot at Ruby Ridge. To the extent that Howen had any knowledge or information about this issue, he was constitutionally obligated to produce it to the defense. We deem the substance of his April 24 interview with Captain Neal to constitute such information. Although Neal did not state that Roderick said that he had shot the dog first, Neal did state that it was his impression that Roderick had shot the dog first. Regardless of whether Neal could articulate his reasons for forming this impression, that he had this impression was important information that needed to be disclosed to the defense to permit them the opportunity to pursue the matter with Neal. We believe that Howen recognized his obligation to disclose this information from the moment that he first heard it. Indeed, he remarked to Neal at the interview that this information would have to be given to the defense. In addition, Lindquist recalled Howan consulting with him about the matter shortly after the interview. At that time, Lindquist opined to Howen that the information should be treated as Brady material and produced to the defense. Lindquist recalled Howen agreeing and that he just wanted to receive confirmation from Lindquist. Howen stated that he deferred disclosing this information to the defense because he intended to call Neal as a witness and to explore the issue with him on direct examination. Howen believed that through the direct questioning of Neal, he would convincingly demonstrate that Roderick gave Neal no information nor made any statements to him that would be evidence that Roderick admitted to shooting the dog first. We find this justification unacceptable. Although the Supreme Court has yet to rule on the timing of when exculpatory evidence must be produced, most courts require that Brady material must be disclosed in time for effective use at trial. As the Ninth Circuit held in United States v. Gordon, 844 F. 2d 1397, 1403 (1988), "Brady does not necessarily require that the prosecution turn over exculpatory material before trial. . . . [but] disclosure must be made at a time when disclosure would be of value to the accused." When exculpatory information is disclosed at trial, a Brady violation only occurs if the defendant was prejudiced by the delay in disclosure. See United States v. Aichele, 941 F. 2d 761, 764 (9th Cir. 1991). It was not until the midst of Roderick's testimony--the witness to whom this information was pertinent--that Howen made disclosure to the defense. When the court became aware of the issue, it recessed the trial to permit the defense the opportunity to question Neal. In our view, this eleventh hour disclosure by Howen comes perilously close to being a violation of the Brady rule. Although the defense had the opportunity to examine Neal, this opportunity came in the midst of trial during a hastily called recess. This is not an instance when the government had just acquired the information, indeed, Howen had learned the information one month earlier. Nor is it a defense for Howen to argue that the defense could have interviewed Neal since it knew that Neal was on the witness list of the government. Such an opportunity did not diminish the obligation of Howen to make the disclosure of information which is "known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. at 103. However, from a strictly analytical perspective, the defendants were probably not prejudiced from the action and, thus, a Brady violation did not occur. When this problem surfaced, the court called a recess to give defense counsel an opportunity to interview Neal. Thereafter, they were able to explore the issue with Neal and to use this information when conducting their cross-examination of Roderick. Furthermore, based on the jury verdict returned on the assault on a federal officer charges, it is difficult to conclude that the defendants suffered prejudice from the late disclosure of this information. Even if the defendants did not suffer any actual prejudice by the delay in revealing the Neal interview, we find the conduct of Howen raises serious ethical concerns. Although there are no internal Department of Justice guidelines governing the appropriate time for disclosure of Brady materials, we believe that the prompt disclosure of exculpatory information is the better practice. The American Bar Association had adopted such a rule. Standard 3-3.11 (a) of the ABA Standards for Criminal Justice: The Prosecution Function (3d ed. 1992) provides that, A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused. We think that the preferable course of action would have been for Howen to have disclosed the Neal material--as he appears to have originally intended--immediately after he first learned of it. The late disclosure cast the government in a bad light and wasted the court's time while the parties argued about whether the rights of the defendants had been violated. This conclusion leads us to our next area of inquiry, which is whether the delayed disclosure of this information was an effort by Howen to harm the ability of the defendants to prepare their defense. We found no evidence in our investigation that Howan's decision was improperly motivated. Although we may not agree with his articulated strategy of clarifying the Neal statements through direct testimony, we do not consider this explanation as an after-the-fact fabrication. We believe that such reasoning was a major factor in the late disclosure. However, we also believe that the stress of the trial, coupled with long work hours with little sleep, impacted adversely on the deteriorating psychological health of Howen and contributed to his failure to disclose the Neal information as well as the circumstances behind the taking of the L bullet photographs. Indeed, from the early stages of the trial, those working closely with Howen noticed that he was under incredible pressure and was exhibiting signs of stress.[FN1750] According to Lindquist, Howen was an excellent, methodical and thorough prosecutor who was "burning the candle at both ends" during the Weaver prosecution. [FN1751] As the trial progressed, Howen was eating poorly and was getting little or no sleep each night as he worked on the numerous trial preparation tasks. In addition, the time away from his family caused "some significant family problems" which increased the emotional pressure on Howen.[FN1752] Although Lindquist tried to relieve some of the pressure on Howen by assuming more responsibility, this strategy did not cause Howen to slow down.[FN1753] Ellsworth spent considerable time, especially during the latter stages of the trial, trying to provide emotional support for Howen. Ellsworth noted that others in the USAO as well as the agents on the case noticed the change in Howen and were concerned about his condition. [FN1754] For example, Rampton noted that on a couple of occasions, Howen woul stare in silence for extended periods of time. He also observed that some of Howen's legal arguments were not as coherent as they had been previously.[FN1755] Towards the end of the trial, the pressure on Howen became so intense that he could not proceed and had to absent himself from the remaining days of the trial. Thereafter, Lindquist performed the remaining prosecutorial tasks. One additional issue warrants mention and that concerns the timing of the interview. We are perplexed by the failure of Howen to interview Neal and other CRT members sooner. These CRT members rescued the stranded marshals following the traumatic events of August 21, 1992. They were the first individuals to have contact with the marshals. Howen knew about the involvement of the CRT members in the rescue and should have appreciated the importance of any information or statements that the marshals may have disclosed to them. Nevertheless, no one from the USAO interviewed the CRT members during the 7-1/2 month period before the beginning of the trial. We find this preparation lapse to be troubling. Although we appreciate that numerous demands were being placed on the prosecution during the pretrial period, we have difficulty understanding why hours were spent interviewing prospective witnesses in Iowa who might have information to support the conspiracy count, yet no time was spent interviewing the CRT members who might possess information critical to the government's theory of the case. e. The L Bullet Photographs Several days after the controversial disclosure of the Calley notes and the Neal interview, Howen was tasked with informing the court of yet another serious omission by the government. As with the Neal interview, the responsibility for failing to inform the court and defense counsel earlier about the circumstances surrounding the taking of the L series photographs [FN1756] must be assigned to Howen. Indeed, he admitted that he had acquired this information during his pretrial interview with Wages in early April, but simply forgot the information. Howen stated that when Wages first communicated this information to him, he did not recognize it as "significant." Because this disclosure was clearly significant, we believe that when Wages informed Howen in April 1993 of this information, that Howen failed to focus on the implications of the information and quickly forgot the problem once the trial was underway. We do not believe that Howen intentionally concealed his knowledge. As with his failure to disclose the Neal interview, we believe that the extreme stress he was under, coupled with his efforts to handle numerous trial preparation activities contributed to his memory lapse.[FN1757] We do not believe that Howen intentionally withheld this information from the court and defense counsel. Nevertheless, we are not entirely comfortable with the manner in which he informed them that he had known of this information earlier. The record indicates that Howen informed the court and defense counsel on May 25, 1993 about the circumstances surrounding the taking of the L series photographs but that it was not until two days later that Howen confessed to having had such knowledge approximately six weeks earlier. Based on his recollection in his interview, Howen indicated that it was not until after he disclosed the information that Wages reminded Howen that he had provided this information to him in April 1993. However, Wages and Rampton recall this incident differently. They recall informing Howen of how the photographs were taken as well as reminding him that they had informed him earlier on the same occasion. We find their account more credible. Indeed, we find it somewhat difficult to believe that after informing Howen of the manner in which the photographs were taken and his realization that he had a serious problem that he would not have questioned why this information was not revealed at an earlier time. We think that Howen was reminded of his prior knowledge during his conversation with Wages and Rampton. We are troubled by the failure of Howen to be totally forthcoming with the court until later but attribute it to his impaired psychological state at the time. Although Rampton insists that he informed Howen and Lindquist in January 1993 of the circumstances surrounding the taking of the photographs, we are not convinced that this communication, if made, was articulated as clearly as Rampton recalls. Neither Howen nor Lindquist recall Rampton informing them of this information at that time. Based on the unconcerned reaction of Howen and Lindquist that Rampton describes, we suspect that the conversation may have been focused on the accusations of Spence that the bullet was planted by the FBI and to the extent that any information was relayed regarding the method by which the photographs were taken, it was secondary to the primary subject of the conversation. In addition, there are two other reasons why we discount this part of Rampton's recollection. First, he stated that he provided defense counsel Peterson with the same information regarding the L series photographs. However, there is no indication that Peterson knew of this information. Indeed, if Peterson had been aware of such facts, we would have expected him to have disclosed the information to fellow defense counsel and for all of them to have protested the action.[FN1758] None of this ever happened. Second, Rampton created no record of his conversations with Howen, Lindquist and Peterson on this subject. As it is the practice of the FBI agents to faithfully document their significant contacts in an investigation, we find it unusual that the practice was not followed here. [FN1759] Our final comments on this issue are directed at the late disclosure of the set of photographs that contained pictures of the L bullet before Wages had removed it. Howen and Lindquist thought that the late discovery of these photographs was attributable to the relocation of evidence that occurred during the pretrial phase of the case and that these photographs were misplaced.[FN1760] The evidence supports this explanation for the untimely production of these photographs. There was no evidence found indicating that anyone from the government intentionally concealed these pictures. It is unclear to whom responsibility for this oversight should be assigned. One would have hoped and expected that the USAO would have carefully maintained a record of materials submitted by the FBI to the USAO. However, this did not appear to have occurred. An October 28, 1992 letter from Dillon to Ellsworth indicates that the FBI forwarded these photographs to the USAO at that time.[FN1761] However, a review of the addenda to the government's response to the discovery stipulation indicates that these photographs were never produced. Despite the existence of this transmittal letter, Howen was unwilling to admit that the photographs were never produced. Despite the existence of this transmittal letter, Howen was unwilling to admit that the photographs had been sent to his office since he had experienced a problem in the past with the FBI stating in a letter that they had sent an item, but then discovering the item was missing. However, when questioned why his office did not verify that the enclosed items had been provided, Howen admitted that at the time, he did not have a procedure whereby he or an assistant would review a package and then notify the FBI of any missing items. [FN1762] We think that the USAO must accept responsibility for this oversight. Lindquist believed that the prosecution was harmed by the manner in which the FBI agents had picked up evidence and then later returned, replaced and photographed it. He viewed such conduct as very troubling and contrary to established procedures for processing evidence. Lindquist believed that the testimony that revealed the circumstances surrounding the taking of these photographs was harmful because it caused the jurors to question the basic credibility of the FBI since the agents had proceeded in such a fashion.[FN1763] Such doubts tainted the integrity of the government prosecution.[FN1764] We agree with Lindquist that this incident had a significant negative impact. 4. CONCLUSION The late disclosures by the government of important information during the Weaver trial were unnecessary, were embarrassing and damaged the integrity of the government.[FN1765] As was previously discussed in section IV (M) of our report, the late production of materials related to the shooting incident report were particularly devastating to the prosecution. The FBI is responsible for that incident. We hope that corrective procedures are instituted to prevent a similar occurrence in the future. The FBI is also responsible for the late production of the Calley notes. Although we do not view that incident as having been intentional, we think that if more care and attention had been directed to the original search and production of the materials, it would have been avoided. The FBI was not singularly responsible for the late disclosure of information--the USAO also neglected to reveal information in a timely fashion. Although the predominant blame for the late disclosure of the information pertinent to the Fadeley compensation arrangement rests with BATF Agent Byerly, we find that Howen should have been more aggressive in discovering this crucial information. The failure to reveal the Neal interview and the circumstances surrounding the taking of the L series photographs were also extremely damaging to the credibility of the government. Both incidents were avoidable; both incidents were the fault of Howen. Although we do not find evidence of improper motivation, we remain concerned by the lack of timeliness of disclosures, and faulty judgment in assessing the importance of these issues. _________________________________________________________________ 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 O) 1591 Letter from Charles Peterson to Ronald Howen, November 3, 1992. 1592 Letter from Ronald Howen to Charles Peterson, November 9, 1992. 1593 See Third Ex Parte Application for Issuance of Subpoenas and payment of Costs and Fees, filed April 13, 1993 with signed Order, dated April 14, 1993. The defense also requested a subpoena duces tec?? he issued for all records used by the shooting incident review team. A discussion of this subpoena and the controversial response to it is contained in Section IV(M). 1594 Id. 1595 Trial Transcript, April 15, 1993, at 142. 1596 Id. at 144-48. Howen stated that in prior cases in which he had been involved if an agency desired to quash a subpoena, an agency lawyer would usually assist in drafting a motion or in researching the issue. Howen Interview, Tape 10, at 35-36. 1597 Trial Transcript, April 15, 1993, at 148-49. 1598 Id. at 152-54. 1599 Id. at 154-55. 1600 Letter from Larry Lee Gregg to Ronald Howen, April 16, 1991. 1601 Memorandum in Support of Motion for Finding of Contempt, or in the Alternative for an Order to Show Cause and to Compel, filed April 23, 1993 1602 Trial Transcript, April 22, 1993, at 153-54. 1603 Howen did not think that the November 1992 letter from Peterson requested discoverable materials nor did he understand how the request related to the issues of the case. Thus, after receiving the letter he made no attempts to secure the requested material from the FBI. Howen Interview, Tape 19, at 32-34. 1604 Trial Transcript, April 23, 1993, at 157-59, 160-62. 1605 Id. at 166. 1606 Id. at 169-70. 1607 Id. at 172-74. Howen said that at the time he was overwhelmed by trial preparation tasks and was hoping for some assistance from FBI lawyers that would have aided him in arguing the FBI position. Howen interview, Tape 10, at 17-18. 1608 Trial Transcript, April 23, 1993, at 173-174. 1609 Id. at 234-35, 240-41. 1610 Id. at 244-45. 1611 This review has its origins in the case of United States v. Henthorn, 931 F. 2d 29 (9th Cir. 1991), cert. denied, 112 S. Ct. 1588 (1992). In that case, the Ninth Circuit reaffirmed its holding in United States v. Cadet, 727 F. 2d 1453, 1467 (1984) that once the defendant has made a discovery request for the personnel files of law enforcement witnesses, the government has the "duty" to review these personnel files to determine if they contain material information that is favorable to the defendant. If the prosecutor is uncertain whether any information is material, he can submit the matter to the court for in camera review. The personnel files do not need to be produced "to the defendant or the court unless they contain information that is or may be material to the defendant's case." United States v. Henthorn, 931 F. 2d at 31; accord, United States v. Dominguez-Villa, 954 F. 2d 562, 565 (9th Cir. 1992); United States v. Cadet, 727 F. 2d at 1463. The review of the personnel files need not be done by the federal prosecutor responsible for the case. It is sufficient if an appropriate agency attorney or a member of his staff conduct the review and then notify the prosecutor of the results of the review. The prosecutor is then responsible for determining if the information is potentially Brady material and if so, whether it should be produced or submitted to the court for in camera review. See United States v. Jennings, 960 F. 2d 1488, 1492, n. 3 (9th Cir. 1992). 1612 Government motion for Protective Order, for in Camera Inspection and Motion to Seal, filed April 23, 1992, at 3-4. 1613 FD-302 Interview of Lucy Ann Hoover, August 12, 1993, at 1. 1614 FD-302 Interview of Brian Callihan, August 6, 1993, at 4. 1615 Memorandum from Joseph Davis to Beau McFarland, April 27, 1993. 1616 Note on FBI Internal Routing/Action Slip from Clawson to Unknown Party, April 28, 1993. 1617 The CLU I had instructed the Salt Lake Division to process the subpoena at the field office level and to coordinate their response with the USAO. Thereafter, the Salt Lake City Division collected and produced the manual provisions to the defense without first submitting the manual provisions for review by the field office documents examiner who was responsible for reviewing the materials to insure that the disclosure was within the bounds of the request and that no applicable privileges were compromised. According to Clawson, the disclosure included sensitive materials that were not within the scope of the request which upset Gale Evans, the Unit Chief of the Violent Crimes Unit of the Criminal Investigation Division. See FD-302 Interview of Thomas Clawson, dated August 12, 1993, at 4-5. See also, FD-302 Interview of Gale R. Evans, dated October 13, 1993, at 7-8. 1618 Letter from Ronald Howen to Charles Peterson, dated April 28, 1993. 1619 Hoover FD-302, at 1; Memorandum from Assistant Director Legal Counsel (FBI), to Ronald Howen, April 29, 1993. 1620 Defendants' Response to Motion for Protective Order, For in camera Inspection and Motion to Seal, filed April 30, 1993. 1621 The Marshals Service provided the Henthorn certifications for Roderick, Cooper and Degan on May 4, 1993. See Letters from Kevin F. O'Hare to Warren Derbidge, May 4, 1993. 1622 Trial Transcript, May 10, 1993, at 8. 1623 Id. at 10. 1624 Id. at 152. 1625 Letters from Gerry L. Spence and David Nevin to Ronald Howan, May 10, 1993. 1626 Letter from Ronald Howen to Gerry L. Spence and David Z. Nevin, May 12, 1993. 1627 Order, filed May 17, 1993, at 1-4 1628 On May 21, 1993, the government produced the Henthorn certifications for Deputy Marshals Hunt, Norris and Thomas. Government Fourteenth Addendum to Response to Discovery Stipulation, filed May 21, 1993. 1629 Howen Interview, Tape 10, at 38-39. 1630 Id. at 39-41. 1631 Id. at 41-42. 1632 Lindquist Interview, Tape 6, at 5-6. 1633 Id. at 6-7. 1634 See Affidavit of Charles F. Peterson in United States v. Weaver, No. CR 92-080-EJL, dated March 17, 1993. 1635 See Weaver Motion to Compel Identity of Informant, Criminal Record, and Matters Affecting Bias or Credibility, in United States v. Weaver, filed March 17, 1993. 1636 Government Response to Motion to Compel Identity of Informant, Criminal Record, and Matters Affecting Bias or Credibility, in United States v. Weaver, filed March 26, 1993. 1637 Addendum to Response to Motion to Compel Identity of Informant, Criminal Record, and Matters Affecting Bias or Credibility and Order to Seal (sealed), in United States v. Weaver, April 13, 1993, at 2. 1638 Howen Interview, Tape 2, at 14. 1639 Trial Testimony of Kenneth Fadeley, April 20, 1993, at 152-54. 1640 Id. at 154-55. 1641 Id. at 160-61. 1642 Id. at 161-63, 179. 1643 Trial Transcript, April 20, 1993, at 6-10. 1644 Id. at 11-13. Howen reiterated this view to investigators. See Howen Interview, Tape 2, at 15-22. 1645 Trial Transcript, April 20, 1993, at 12-13. 1646 Id. at 14-15. 1647 Trial Testimony of Herbert Byerly, April 20, 1993, at 68-70. 1648 Id. at 70-72. 1649 Id. at 75. 1650 Interestingly, this award was given to Fadeley for his assistance in the investigation of Frank Kumnick, who was associated withy members of the Aryan Nations and who was associated with members of the Aryan Nations and who was an associate of Weaver. See discussion in Section IV (A). Sometime in 1987 or 1988, Kumnick sold an illegal weapon to Fadeley in his undercover role. At that time, BATF knew that Kumnick and his associates had discussed forming a third group of white separatists. In addition, Fadeley learned that Kumnick had discussed kidnapping and holding for ransom children attending a private school in Northern Idaho. BATF requested Howen to informally decline prosecuting Kumnick for the gun charge because they believed that such a prosecution would expose Fadeley and that it would be more beneficial to the BATF investigation if Fadeley remained in his undercover capacity. Howen agreed and informally declined to prosecute Kumnick. See Letter from Ronald Howen to Barbara Berman, January 31, 1994, at 1-2. 1651 Byerly Trial Testimony, April 20, 1993, at 76-79. 1652 See Weaver Motion to Strike Testimony of Kenneth Fadeley [sic] and Memorandum in support thereof, in United States v. Weaver, filed April 21, 1993. 1653 See Government Response to Motion to Strike Testimony of Kenneth Fadeley. 1654 Order in United States v. Weaver, dated My 17, 1993, at 7-8. 1655 Id. at 8. 1656 Government Second Addendum to Response to Motion to Compel Identity of Informant, Criminal Record, and Matters Affecting Bias or Credibility, and Order to Seal, filed May 19, 1993. 1657 When the compensation issue was disclosed at trial, Ellsworth recalls Howen being very upset. It was Ellsworth's impression that Howen believed that he had been misled as to the compensation arrangement between BATF and Fadeley. Ellsworth Interview, Tape 1, at 17-19. 1658 Howen Interview, Tape 2, at 15-27, 33. 1659 Id. at 15-21. 1660 Byerly Sworn Statement, at 26. 1661 Interview of Herbert Byerly by Unidentified Special Agent from the Bureau of Alcohol, Tobacco and Firearms, September 7, 1993; Report by Donald Deane, Investigator, BIG, Department of Treasury (Interview of Herbert Byerly), December 17, 1993. 1662 Sworn Statement of Kenneth H. Fadeley, December 7, 1993, at 4-5. 1663 Id. at 5. 1664 See FD-302 Interview of George J. Calley, Jr., October 19, 1993, at 4-5. 1665 Id. at 10. 1666 The numerous errors in the FD-302 of Cooper created major problems for the prosecutor in presenting his case at trial. Similar problems were created by inaccuracies in the FD-302 of Ruth Rau. These inaccuracies, which in turn, created conflicts between the alleged statement made in the interview and the testimony elicited at trial, provided support for the defense attack on the credibility of the witness. The current FBI practice is to have the interviewing agent prepare an interview report based on his notes and recollection. We think that such a procedure can never be totally accurate and, indeed, in some situations, major errors can be made. Howen suggested, and we agree, that a more satisfactory way to conduct these interviews would be to record them on tape and to have the tape be the interview record. 1667 Calley FD-302, at 12. 1668 Sworn Statement of Larry Cooper, March 7, 1994, at 9-10; Trial Testimony of Larry Cooper, April 15, 1993, at 122-139. 1669 Id. at 13-14; accord, FD-302 Interview of Joseph V. Venkus, October 18-19, 1993, at 4. 1670 Calley FD-302, at 12. 1671 Venkus FD-302, at 5. 1672 Calley FD-302, at 13. 1673 Id. at 16. 1674 A "1-A" file accompanies all FBI reports of interviews and consists of the interviewers notes of the interview and any exhibits that pertain to the interview. 1675 Venkus FD-302, at 4. 1676 Letter from Maurice Ellsworth to Eugene Glenn, September 3, 1992, at 2. 1677 See Government Response to Discovery Stipulation, filed October 23, 1992. 1678 See Government Sixth Addendum to Response to Discovery Stipulation, filed February 26, 1992. 1679 FD-302 Interview of T. Michael Dillon, October 25, 1993, at 10-11; FD-302 Interview of Gregory Rampton, October 18-19, 1993, at 29. 1680 Calley FD-302, at 11. 1681 Howen Interview, Tape 10, at 52-53. 1682 Dillon FD-302, at 11. 1683 Howen interview, Tape 10, at 53. 1684 See Government Fourteenth Addendum to Response to Discovery Stipulation, filed May 21, 1993; Trial Transcript, May 21, 1993, at 10-11. 1685 See discussion in subsection (d), infra. 1686 Trial Transcript, May 21, 1993, at 10-11, 26. 1687 Id. at 27-28. 1688 Id. at 28-29. 1689 Trial Transcript, May 24, 1992, at 2-7. 1690 Howen Interview, Tape 10, at 43. 1691 Major Edwin Strickfaden commented that some CRT members wondered why they had not been interviewed earlier considering the pending trial. FD-302 Interview of Edwin D. Strickfaden, October 7, 1993, at 8. Howen stated that he did not interview the CRT members until the court recess because he had not had the time before then and prior to that time, he had been focusing on those individuals having firsthand knowledge of the April 21 events. He did not believe that they "had anything crucial to say at the time." Howen Interview, Tape 10, at 49-51. 1692 Howen Interview, Tape 10, at 44. 1693 FD-302 Interview of David L. Neal, August 28, 1993, at 4. 1694 Howen Interview, Tape 10, at 44-45. 1695 Howen explained, "I was going to lay it out myself someone else's testimony, ah, and I'm doing that, I consider that compliance with Brady. That's not withholding anything. Ah, particularly if I named the individual." Id. at 48. 1696 Id. at 46-47. 1697 Trial Transcript, May 21, 1993, at 2, 33; Howen Interview, Tape 10, at 47. 1698 Trial Transcript, May 21, 1993, at 3-4. 1699 Id. at 5-9. 1700 Id. at 12-13. 1701 Id. at 13-14. 1702 Id. at 14. 1703 Id. at 16-18. 1704 Id. at 27-29. 1705 Neal FD-302, at 4-5. 1706 Howen Interview, Tape 10, at 46. 1707 Id. 1708 Lindquist Interview, Tape 5, at 41-43; Tape 6, at 1-2. 1709 Id., Tape 6, at 2-3. 1710 Id. at 4-5. 1711 FD-302 Interview of Larry B. Wages, October 13 & 15, 1993, at 5. 1712 Id. at 4-5. 1713 Id. at 5-7. Special Agent George Sinclair recalled Wages approaching him and Special Agent Calley while the search at the Y was in progress and asking if either of them had a camera. Wages informed Sinclair that he had discovered a "pristine" bullet and wanted to photograph it so that it was preserved as evidence. Neither Sinclair nor Calley had a camera, but Wages showed them the bullet. FD-302 Interview of George T. Sinclair, Jr., October 7, 1993, at 3. 1714 Rampton FD-302, at 6-7. 1715 Wages FD-302, at 6. 1716 Rampton FD-302, at 7, 10. 1717 See Wages FD-302, at 6; Rampton FD-302, at 10. Kramer could not recall whether the bullet was present on the ground when he took the pictures, nor did he have any knowledge of the bullet having been removed earlier and replaced for the taking of the photographs. FD-302 of Kelly J. Kramer, October 12, 1993, at 2. 1718 Wages FD-302, at 6. 1719 The FBI Laboratory subsequently concluded that the bullet had been shot from Sara Weaver's gun. 1720 Rampton FD-302, at 9-10; Wages FD-302, at 6-7. 1721 Rampton FD-302, at 10. 1722 Howen Interview, Tape 6, at 30-33. 1723 Lindquist Interview, Tape 3, at 28. 1724 Howen Interview, Tape 6, at 29-30; Wages FD-302, at 7. 1725 Howen Interview, Tape 6, at 29-30, 33. 1726 Rampton FD-302, at 43-44; Wages FD-302, at 7. 1727 Wages FD-302, at 7. 1728 Trial Transcript, May 25, 1993, at 3. 1729 Id. at 65-67. 1730 Id. at 69-70. 1731 Id. at 72-73. 1732 Trial Transcript, May 25, 1993, at 73-76. Two days later, Howen stipulated that two of the photographs were taken by Cyrus Grover and depicted the L-1 bullet before it was picked up. Trial Testimony, May 27, 1993, at 126-27. Contrary to Howen's statement to the court, it appears that Wages knew that photographs of the bullets had been taken before he had removed them, although he believed that Cadigan had taken the pictures. Wages Fd-302, at 5-6. 1733 Trial Transcript, May 25, 1993, at 77. 1734 Id. at 125-30. 1735 Id. at 130-32. 1736 Id. at 132-35. This representation conflicts with Wages recollection that he informed Howen during their April 1993 meeting that the entire L series photographs had been taken after the evidence had been removed and then replaced. Wages FD-302, at 7. 1737 Trial Transcript, May 25, 1993, at 135-37. 1738 Trial Testimony of Larry Wages, May 25, 1993, at 14-21. 1739 Id. at 37-39. 1740 Trial Transcript, May 27, 1993, at 102-03. 1741 Wages Trial Testimony, May 25, 1993, at 130-31. 1742 Order in United States v. Weaver, No. CR 92-080-N-EJL, first filed October 26, 1993, at 2. 1743 At our request, Howen reviewed these addenda to determine which agency was responsible for the various items produced. This review indicated that many of these items--approximately 75 percent--were produced by the Marshals Service and the BATF or were created by the trial team for use at trial. See Letter from Ronald Howen to Barbara Berman, January 31, 1994, at 3-14. 1744 Order, October 26, 1993, at 3-8. 1745 Id. at 9-10. 1746 Id. at 13. 1747 It was not until our interview of former U.S. Attorney Ellsworth that he became aware of the position of Howen on this issue. Ellsworth agreed that the attorney representing the government has the obligation to obtain discoverable documents that he knows exist and that are in the possession of another government agency. Ellsworth Interview, Tape 5, at 47-48. 1748 Ellsworth said that he has always found payments confidential to informants to be a troubling area. He had particular difficulty with an award made after the informant had finished working on a matter because he could understand how the informant might feel that the size of the award was affected by the outcome in the case, even if it were not the basis upon which the BATF made the award. Ellsworth interview, Tape 1, at 28-29. Howen opined that the future award program at BATF creates a real problem for prosecutors. Although Howen believed that paying an informant a salary also presents issues as to the credibility of an informant, such a procedure, when disclosed at the outset, can be dealt with more easily than the future award program. Howen Interview, Tape 2, at 27-31, 34-35. 1749 Although we do not assess responsibility for this incident on the USAO, we cannot help but wonder if this omission in the Calley notes may have been something that they should have detected. Cooper was a critical witness and the first witness for the government. We would have thought that as part of the preparation process, someone in the USAO would have reviewed the Calley materials, would have noticed that pages were missing and that this would have prompted a further inquiry. 1750 Lindquist Interview, Tape 8, at 13-15; Ellsworth Interview, Tape 4, at 46-47; Tape 5, at 1-4. 1751 Lindquist Interview, Tape 8, at 13. 1752 Id. at 13-14; Ellsworth Interview, Tape 5, at 1-4. 1753 Ellsworth Interview, Tape 5, at 2. 1754 Id., Tape 4, at 46-47. 1755 Rampton FD-302, at 46. 1756 An evaluation of the conduct of the FBI in removing, replacing and photographing evidence as described by Wages is discussed in Section IV (I) of the report. 1757 Lindquist said that he was troubled by the failure of Howen to remember to disclose this information to the court and the defense. However, he did not attribute this action to any improper motive on the part of Howen. Indeed, Lindquist noted that such an omission was "uncharacteristic of Ron", whom he regarded as being "extremely diligent" in discovery matters. Lindquist attributed the lapse to "the fact that [Howen] was burning the candle at both ends and was very weighted down by horrendous discovery demands and it simply slipped his mind." Lindquist Interview, Tape 3, at 32. 1758 Lindquist said that if he had known that the defense had been informed in January 1993 of the circumstances surrounding the taking of the L photographs, they certainly would have raised such knowledge in defense when defense counsel complained about the problem in May, 1993. Lindquist Interview, Tape 3, at 28-29. 1759 Lindquist would have expected the FBI agents involved to have documented their conversations with defense counsel on this issue and the fact that they did not do so was troubling to him. Lindquist Interview, Tape 3, at 33. 1760 Howen Interview, Tape 6, at 34-37. Lindquist thought that the photographs may have been misplaced when some boxes were taken from the main storage area at the FBI and transferred to be inventoried at a condominium used by the marshals. Lindquist Interview, Tape 5, at 39-40. 1761 See Letter from T. Michael Dillon to Maurice Ellsworth, October 28, 1992. In this letter, Dillon forwarded a package of materials, including a package of 107 photographs and a package of 22 photographs, both of which were taken by Cyrus Grover. The photographs produced by Howen on May 25, 1993 were similarly described. 1762 Howen Interview, Tape 6, at 34-37. 1763 Lindquist Interview, Tape 3, at 26-27. 1764 Id. at 34. 1765 Judge Lodge told this investigation that the late production of arguably exculpatory materials adversely impacted upon the government's presentation of the case to the jury. See Memorandum from James R. Silverwood to Barbara B. Berman (Interview of the Honorable Edward Lodge), January 5, 1994. _________________________________________________________________ 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