From: [s--sh--e] at [cco.caltech.edu] (Tom Renner) Newsgroups: talk.politics.guns Subject: Massacre of Branch Davidians 2/5 Date: 12 Feb 1994 11:01:44 GMT BATF-TREASURY DEPARTMENT VIOLATIONS OF RIGHTS, =20 EXCESSIVE FORCE AND COVERUP: THE FEBRUARY 28, 1993 RAID ON THE BRANCH DAVIDIANS In May of 1992 the United Parcel Service informed the McLennan County Sheriff's Department that the Branch Davidians were receiving "suspicious" deliveries, including shipments of firearms worth more than $10,000, inert grenade casings, and a substantial quantity of black powder. (Like the Anti-Defamation League and Cult Awareness Network, UPS evidently turns over information about citizens' legal activity to authorities.) The Sheriff's Department contacted BATF and Special Agent Davy Aguilera was assigned to investigate. Around the same time, the Waco Tribune- Herald, which had been contacted by former members, began researching an expos=82 about the Branch Davidians' alleged arms stockpiling. =20 >From June until August, Aguilera investigated companies which had sold weapons to David Koresh and discovered the Branch Davidians bought about $43,000 worth of weapons from March 26 to August 12, 1992, after which such purchases virtually ceased. The case effectively was dropped for more than two months. It was picked up again in November, after the "60 Minutes" television show contacted BATF about a planned expos=82 of the agency, and after the Waco Tribune-Herald contacted BATF about their planned expos=82 of the Branch Davidians' arms buildup (TDR:67). =20 In November Assistant U.S. Attorney Bill Johnston held that "there already was sufficient evidence of illegal activity to meet the threshold of probable cause for a search warrant. . .and tactical planning for an enforcement operation began in earnest." (TDR:37) However, BATF Director Stephen Higgins admitted to the House Judiciary Committee on April 28, 1993, that despite the information collected about Koresh's 1992 weapons purchases, "We had a review here at headquarters office in December with respect to whether we had probable cause. We decided at that point that we did not, and we continued to gather information. We brought people in from Australia; we got the undercover agent in; we interviewed any number of people."[64] Higgins was referring to the December 24, 1993 meeting in Washington where BATF Associate Director of Enforcement Daniel Hartnett and his Deputy Director Edward Conroy demanded that more probable cause should be developed and tactical plans should be slowed down. (TDR:Appendix D-7) =20 What BATF did in early December was to begin interviewing disgruntled former members and to set up an undercover house across the street from Mount Carmel Center.=20 However, David Koresh and the Branch Davidians were aware throughout the investigation that some agency was monitoring them. At different points they invited the BATF and the Sheriff's Department to look at their guns, complained to the Sheriff's Department about blatant undercover activities and purposely befriended individuals they knew were undercover agents. Meanwhile BATF went forward with plans for a full scale paramilitary raid on Mount Carmel.=20 On February 12, 1993, BATF Director Higgins was first fully briefed on the plan. (TDR:Appendix D-11) On February 25th, BATF agent Davy Aguilera, with the assistance of U.S. Attorneys Bill Johnston and John Phinizy, produced a "Probable Cause Affidavit in Support of Search Warrant." On the basis of that affidavit, Magistrate Judge Dennis S. Green signed a search warrant for illegal weapons and explosives for Mount Carmel and the "Mag Bag" garage and an arrest warrant for David Koresh for possession of an unregistered destructive device.[65] However, Treasury Department officials nixed the raid plan when they discovered its existence Friday, February 26th. BATF Director Higgins convinced officials that because of the Waco Herald-Tribune series on the Branch Davidians, February 28th might be the last opportunity to, as one put it, "catch the cult members unprepared and away from their stockpile of heavy weaponry."[66] And Higgins told officials that raid planners had assured him that the raid would be called of if the element of surprise was lost. They did not tell him they were expecting a shootout. =20 Saturday, February 27th the Waco Herald-Tribune began their series, "The Sinful Messiah." And on Sunday, February 28th, despite their knowledge that the Branch Davidians had been forewarned, 76 armed BATF agents stormed Mount Carmel Center. The assault left four BATF agents and five Branch Davidians dead. Another Branch Davidian would be killed later that afternoon trying to return home. =20 In this section the Committee for Waco Justice report describes BATF violations of constitutional rights and excessive use of force in their investigation of and February 28th raid upon the Branch Davidian religious group and the subsequent BATF and Treasury Department coverup.=20 The report then presents the Committee for Waco Justice conclusions: that BATF agents drove the Branch Davidians to violent self-defense, resulting in the deaths of four agents and six Branch Davidians, and that the Attorney General should appoint an Independent Counsel to identify and prosecute responsible agents and officials for official misconduct, violations of rights, and negligent homicide.=20 We will present further recommendations in the last section of this report. =20 It should be noted that none of the testimony given to Treasury Department "review teams" or to Congress was given under oath. Also, the Treasury Department report does not include information which might effect the prosecutions of the Branch Davidians now on trial.=20 TREASURY DEPARTMENT AND BATF CHAINS OF COMMAND =20 FEBRUARY 28, 1993@@TREASURY DEPARTMENT Lloyd Bentsen - Secretary of the Treasury John P. Simpson - Acting Assistant Secretary=20 Ronald K. Noble - unconfirmed Assistant Secretary of the Treasury for Enforcement=20 (a consultant at this point) BUREAU OF ALCOHOL, TOBACCO AND FIREARMS Stephen Higgins-Director Daniel Hartnett - Associate Director of Enforcement Edward Conroy - Deputy Associate Director of Enforcement David Troy - Chief of Intelligence Division@@"National Response Plan" Assignments for "Waco Operation" SAC Philip Chojnacki - Incident Commander ASAC Chuck Sarabyn - Tactical Coordinator SAC Pete Mastin - Deputy Incident Commander ASAC Jim Cavanaugh - Deputy Tactical Coordinator SA Sharon Wheeler - Public Information Officer RAC Bill Buford - Special Response=20 Team 1 leader=20 SAC Curtis Williams - Special Response Team 2 leader SAC Gerald Petrilli - Special Response Team 3 leader SAC Ted Royster - planner, untitled raid coordinator SA Earl Dunagan - investigator SA Davy Aguilera - investigator SA Robert Rodriquez - undercover agent@@Note: SAC-Special Agent-in-Charge ASAC-Assistant Special Agent-in-Charge RAC-Resident Agent-in-Charge SA-Special Agent@@ 1. BATF IGNORED BRANCH DAVIDIANS' LEGAL GUN BUSINESS =20 These first five sections will review the process by which BATF agents gathered evidence of probable cause to serve a search warrant on the Branch Davidians and to arrest David Koresh. Some might consider this detailed review unnecessary, given government assertions that illegal weapons were found after the fire. However, it is important to understand that a raid was conducted despite the facts that Branch Davidians ran a legal business, BATF found no evidence of illegally purchased weapons, and the Branch Davidians attempted to cooperate with investigators.=20 Moreover, the "probable cause" to obtain a search warrant was based largely on biased information, information used to excuse a full paramilitary raid by 76 armed agents. Such unnecessary paramilitary raids on any American undermines all our rights. Some Branch Davidians "confirmed that they stockpiled weapons in preparation for what Mr. Koresh long prophesized would be an apocalyptic firefight with law enforcement officials that could be a precursor to the end of the world. But they insisted that the weapons were obtained legally."[67] However, others will testify during the trial that only certain members of the group had known about the weapons or handled them.[68] In any case, it is not illegal to stockpile guns for defense against some future illegal attack by government agents. =20 More importantly, BATF investigative agents either never discovered--or completely ignored--the fact that the Branch Davidians ran a profitable legal gun business.=20 According to the Washington Post, its "biggest moneymaker was its thriving trade in guns and ammunition, bought from mail-order firms and local gun stores and resold at a profit at gun-fancier fairs throughout Texas. Among the products it marketed at these fairs were souvenir plaques made of hand grenade casings mounted on wood."[69] Even Marc Breault mentions that of the Branch Davidian businesses, the "most important of all" was trade in weapons.[70] Clifford L. Linedecker writes, "[Paul] Fatta was a regular at gun shows in Austin, Dallas, Forth Worth, San Antonio, and other cities in Texas and sold everything from camouflage clothing to military-type ready-to-eat meals, gun grips, and weapons."[71] The September, 1993, indictment against Fatta and other Branch Davidians admits that "Paul Fatta acquired a Texas Sales and Use Tax Permit in the name of "The Mag Bag." (JDR:Indictment:4) =20 Koresh and the Branch Davidians were working with gun dealer Henry McMahon, who held a Class III dealer's license allowing him to legally own, sell, and buy, any type of weapon. In April of 1993, McMahon told the Pensacola television show "Lawline" that Koresh had purchased a large number of legal military-style semi-automatics as an investment, assuming that their value would increase if the government somehow restricted their manufacture or sales in the future. Considering that this had happened with other guns in the past, this was a reasonable business investment.=20 McMahon said most of these guns were kept boxed and never fired, to enhance resale value.[72] During the first days of the Branch Davidian trial, Paul Fatta's attorney Mike DeGeurin told the jury: "Koresh and Fatta saw that a tremendous investment could be made by buying these guns (semiautomatic rifles). They thought the guns may be outlawed in Washington and that they would triple or quadruple in price."[73] =20 BATF Agent Davy Aguilera wrote in his February 25, 1993, affidavit: "June 9, 1992, I requested a search of the records of the Firearms Licensing Section of the Bureau of Alcohol, Tobacco and Firearms, Atlanta, Georgia, to determine if Howell, Fatta or the `Mag-Bag' Corporation were licensed as Firearms dealers or manufacturers. The result of this search was negative." He did not search under the names David Koresh or Michael Schroeder, who also signed for guns, or any of a number of other adults who lived at Mount Carmel. Nor did he do a second search when the case was reactivated in late November. =20 Aguilera's affidavit mentions that David Block said that "he attended two gun shows with Vernon Howell, Mike Schroeder, Paul Fatta, and Henry McMahon who is a Federally licensed firearms dealer." Yet Aguilera was unable to discover they all had legal business dealings. If he had, perhaps BATF might not have been so alarmed by the Branch Davidians buying $200,000 in weapons over a 16 month period.[74] 2. BATF FOUND NO EVIDENCE WEAPONS WERE PURCHASED ILLEGALLY Davy Aguilera's investigation of shipments from various arms vendors to the "Mag-Bag" and of gun dealer Henry McMahon's records indicated that during 1992 the Branch Davidians acquired the following firearms and related explosive paraphernalia: one hundred four (104) AR-15/M-16, upper receiver groups with barrels; eight thousand, one hundred (8,100) rounds of 9mm and .223 caliber ammunition for AR-15/M-16; twenty (20), one hundred round capacity drum magazines for AK-47 rifles; two hundred sixty (260), M-16/Ar-15, magazines; thirty (30) M-14 magazines; two (2) M-16 EZ kits; two (2) M-16 Car Kits; one M-76 grenade launcher; two hundred (200) M-31 practice rifle grenades; four (4) M-16 parts set Kits "A"; two (2) flare launchers; two cases (approximately 50) inert practice hand grenades; 40-50 pounds of black gun powder; thirty (30) pounds of Potassium Nitrate; five (5) pounds of Magnesium metal powder; one pound of Igniter cord (A class C explosive); ninety-one (91) AR/15 lower receiver units; twenty-six (26) various calibers and brands of hand guns and long guns; 90 pounds of aluminum metal powder; 30-40 cardboard tubes. The amount of expenditures for the above listed firearm paraphernalia, excluding the (91) AR-15 lower receiver units and the (26) complete firearms, was in excess of $44,300."=20 All these guns, gun parts, powders, inert grenades, and other equipment were lawfully purchased and may be legally owned. None per se established probable cause that Koresh had violated or was about to violate federal law. As has been noted, the seemingly large amounts are not illegal either according to the Firearms Owners' Protection Act of 1986 and the Supreme Court decision United States vs. Anders, nor are they unusual for someone dealing in weapons or holding them as an investment. Aguilera did not investigate the one dealer who might possibly have sold Koresh illegal arms. In the affidavit he states, "because of the sensitivity of the investigation" he did not contact "vendors with questionable trade practices" who had sold to Koresh, including one suspected of "unlawful possession of machineguns, silencers, destructive devices, and machinegun conversion kits." In effect, Aguilera refused to check to see if Koresh had bought illegal items from this source and instead inferred probable cause. This is blatantly unconstitutional. =20 Aguilera suspected the Branch Davidians were breaking laws regarding machineguns and explosives. It is only legal to own a machinegun--or machinegun conversion kit-- manufactured before May 19, 1986. Both must be registered and one must also pay a $200 transfer tax upon buying the machinegun. Uncertainty arises because these conversion kits can be used to turn other guns into machineguns.=20 According to former enforcement chief Robert Sanders, this area remains so unclear that, "There are no published rulings telling you what is and what isn't [a violation]."[75] =20 What would probably be illegal is: a) buying a registered machinegun without paying the $200 tax; b) owning unregistered conversion kits; c) using a registered conversion kit to convert a gun into a machinegun, but not paying the $200 tax; d) using an insufficient number of parts from a registered conversion kit to convert a gun into a machinegun, even if the tax is paid; e) owning an unregistered conversion kit; f) owning all parts necessary to assemble a brand new machinegun, even if the parts are not assembled; g) unregistered manufacturing of conversion parts; h) using illegally manufactured parts to convert guns into machineguns; i) buying an illegal machinegun produced in any of ways above. =20 As of December, 1992, Aguilera's only evidence that the Branch Davidians were doing one or more of these things was that they had bought a number of legal weapons and legal gun parts which, with the help of a few parts they did not have, can be converted into machineguns. Aguilera states that Firearms Enforcement Officer Curtis Bartlett told him that the firearms parts which Howell had received, and the method by which he had received them, was consistent with findings in other BATF investigations which resulted in the seizure of illegal machineguns. However, BATF's suspicions remained pure conjecture. =20 It is also legal to own all the destructive device- related items Aguilera listed--the grenade launcher, M-31 practice rifle grenades, inert practice hand grenades, black gun powder, potassium nitrate, magnesium metal powder, aluminum powder, and igniter cord. What would not be legal is to manufacture these materials into grenades or other destructive devices. Aguilera asserted in the affidavit that BATF explosives expert Jerry A. Taylor had concluded that these materials could be used to manufacture explosives. However, according to Paul H. Blackman, Ph.D. "the assertion that possession of the black powder and inert grenades constitutes an explosive grenade because it is possible to make one is misleading. Not only are more materials needed, along with the machinery to drill and plug a hole, but without intent, there is no violation of the law." Blackman asserts the Branch Davidians were using the explosive materials for construction projects and for refilling ammunition, both legal uses.[76] It was because of this lack of probable cause that in December BATF officials instructed Aguilera to gather information about Koresh's "intent." 3. "PROBABLE CAUSE" BASED ON BIASED INFORMATION ABOUT INTENT The credibility and reliability of witnesses in an affidavit is very important. Yet all Aguilera's witnesses as to Koresh's "intent" had some credibility problems.=20 Neighbor Robert L. Cervenka, who alleged to Aguilera he actually had heard machinegun fire on the property, had been involved in a property dispute with the Branch Davidians.[77] Joyce Sparks' evidence on intent was delivered to Aguilera through another BATF agent and, as we shall see, was probably a garbled transmission. All other evidence on intent came from disaffected former Branch Davidians, all of whom were influenced by "cult busters" Marc Breault and Rick Ross. a. Rick Ross =20 Aguilera began contacting former members in November, 1992. He obtained their names from the 1990 affidavits Breault and other former members left with the local Sheriff's Department and from Rick Ross. Nancy Ammerman, who had access to all BATF and FBI files, wrote "The ATF interviewed the persons [Ross] directed to them and evidently used information from those interviews in planning their February 28th raid." (JDR:Ammerman:Addendum) Rick Ross "deprogrammed" David Block, who lived at Mount Carmel only three months, in the summer of 1992 in the home of CAN national spokesperson Priscilla Coates in Coates' home in California.[78] He or California CAN representatives were probably in close contact with Jeannine, Robyn and Debbie Sue Bunds, all of whom gave BATF information. (Linedecker writes that in 1991 California police said Robyn was being deprogrammed.[79]) =20 Evidence that Rick Ross had a financial motivation for inciting BATF against the Branch Davidians is contained in Marc Breault's January 16, 1993, diary entry, where he describes a conversation with Branch Davidian Steve Schneider's sister. "Rick [Ross] told Sue that something was about to happen real soon. He urged her to hire him to deprogram Steve. Rick has Sue all scared now. The Schneider family doesn't know what to do. Rick didn't tell them what was about to happen, but he said they should get Steve out as soon as possible. I know that Rick has talked to the ATF."[80] It is unknown how many other families Ross contacted offering his expensive services "before it's too late." b. Former Members' Allegations About Intent =20 Marc Breault, David Block, Poia Vaega and Jeannine, Robyn and Debbie Sue Bunds provided Aguilera with the following evidence of "intent" about illegal machineguns: Robyn Bunds said she found what David Bunds called a "machinegun conversion kit" in their LaVerne home in 1991, but Aguilera did not interview David; Jeannine and Debbie Sue Bunds said they saw a Branch Davidian shooting a gun that must have been a machinegun because it shot so fast; Debbie Sue said she head Koresh say he wished he owned a machinegun; Poia Vaega said that Koresh had passed an "AK-47 machinegun" around at a meeting (AK-47s also come in legal, semi-automatic versions); Marc Breault said Koresh told him how easy it was to convert a gun to a machinegun; David Block told Aguilera that Donald Bunds, a mechanical engineer, who remained with the group after his family left it, operated a metal lathe and milling machine that had the capability to fabricate firearm parts and that he had observed Bunds designing a machinegun on a computer. Jeannine Bunds, Breault and Block provided Aguilera with the following evidence of intent to produce illegal explosives: Jeannine Bunds said she had seen one "grenade", but not that she knew it contained explosive materials; Marc Breault said that sometime before 1989 Koresh said he wanted to "obtain and/or manufacture" grenades; David Block said he had heard Koresh ask if anyone "had any knowledge about making hand grenades" and another time he "heard discussion about a shipment of inert hand grenades and Howell's intent to reactivate them"; both Breault and Block asserted that Koresh had expressed interest in the (legally available) book Anarchist Cookbook which explains how to make explosives. While such allegations might be credible in most witnesses, they must be regarded skeptically when coming from individuals involved with professional or amateur cult busters. The Treasury report itself notes, "the planners failed to consider how Block's prior relations with Koresh, and his decision to break away from the Branch Davidians at the Compound, might have affected the reliability of his statements. Although the planners knew Block had met with a self-described `deprogrammer,' Rick Ross, they never had any substantive discussions with him concerning Block's objectivity about and perspective of Koresh and his followers." (TDR:143-144) All those who gave BATF the all important "evidence of intent" had similar credibility problems! c. BATF and Treasury Department Use of Former Members' Allegations =20 It is interesting to note that none of the most inflammatory allegation's about Koresh's violent criminal intent made by former members--that he had made up a "hit list" against former members, that he had once "tested" them by saying they would have to turn their guns on the public, that Branch Davidians were considering "mass suicide," or that they had renamed Mount Carmel Center "Ranch Apocalypse"[81]-- were included in the Aguilera's February 25th affidavit. Yet the Treasury report claims these allegations--some of which may not have been made until after the raid--were a prime excuse for the raid because Koresh "might soon have been inspired to turn his arsenal against the community of nonbelievers." (TDR:127) =20 It is particularly disturbing to see that these cult buster stories even convinced top Treasury Department officials to support the plan. Assistant Secretary of the Treasury for Enforcement Ronald K. Noble told the April 9, 1993, House Appropriations subcommittee hearing that from what BATF officials had told him, the Branch Davidians were "people who were feared to be gathering machineguns and automatic weapons and explosives for either a mass suicide or for some kind of assault near Waco, Texas; that they had bad intentions, evil intentions."[82] 4. "PROBABLE CAUSE" BASED ON RELIGIOUS AND POLITICAL BELIEFS In his February 25th affidavit Aguilera includes third hand information--from social worker Joyce Sparks to Special Agent Carlos Torres to himself--that "during her conversation with Koresh, he told her that he was the `Messenger' from God, that the world was coming to an end, and that when he `reveals' himself, the riots in Los Angeles would pale in comparison to what was going to happen in Waco, Texas. Koresh declared that it would be a `military type operation' and that all the `non- believers' would have to suffer." However, it is likely Sparks misinterpreted Koresh's Biblically prophetic statements, statements fully protected under the First Amendment freedom of religion provision. =20 The affidavit also used other statements fully protected under the First Amendment freedom of speech provision as evidence of criminal intent. These include Koresh's talk about the desire to own machineguns and the fully legal Anarchist Cookbook and his telling undercover Agent Robert Rodriguez it is possible to purchase a "drop- in-sear" to convert an AR-15 rifle into an illegal machinegun. Former member Robyn Bunds said that "she and the other residents were subjected to watching extremely violent movies of the Vietnam War which Howell would refer to as training films." However, the movies alluded to were popular Hollywood films "Hamburger Hill," "Platoon" and "Full Metal Jacket."[83] Particularly disturbing is the affidavit's mentioning Koresh's assertion of his right to bear arms and his criticism of BATF as evidence of criminal intent. "David Koresh stated that the Bible gave him the right to bear arms. . .David Koresh then advised Special Agent Rodriguez that he had something he wanted Special Agent Rodriguez to see. At that point he showed Special Agent Rodriguez a video tape on ATF which was made by the Gun Owners Association (G.O.A.). This film portrayed ATF as an agency who violated the rights of Gun Owners by threats and lies."=20 A later March 9, 1993 affidavit signed by BATF agent Earl Dunagan actually listed as objects for which BATF wanted to search audio and video tapes which criticized "firearms law enforcement and particularly the Bureau of Alcohol, Tobacco and Firearms (ATF)." BATF wanted to present these as "evidence of Howell's or other cult members' motive for wanting to shoot and kill ATF agents." 5. OTHER IRREGULARITIES IN THE FEBRUARY 25, 1993 AFFIDAVIT Davy Aguilera's February 25, 1993 affidavit contains stale, inaccurate and misleading information and presents an "indefensible" probable cause theory.=20 Considering the sloppiness of Aguilera's February 25, 1993 affidavit, it is not surprising that the Treasury report does not bother to include a copy as one of its several appendixes! a. Stale Information =20 All Aguilera's supporting information regarding the purchase of possibly suspicious weapons was more than eight months old. According to David Koresh's attorney Dick DeGuerin, the February 25th affidavit contained "stale information" under the 1932 Supreme Court case Sgro v. United States which holds: "the magistrate [has to] conclude that what they are searching for is there now, not that it was there at some time in the past."[84] Similarly, United States v. Ruff, 984, F.2d 635 [5th Cir., 1993] holds that evidence must be fresh.[85] Most former members' allegations that they had heard Koresh discuss machineguns or seen Koresh use alleged machineguns came from 1989 and 1991. David Block's allegations that he'd heard Koresh discuss making machineguns and grenades were also more than six months old. b. Inaccurate Information =20 Aguilera's affidavit contained glaring errors of fact that attest to the shoddy nature of the "supporting information." Despite Aguilera's swearing to be familiar with federal firearms and explosives laws, he confused the legal definition of "destructive devices" and "firearms."=20 He called E-2 Kits, "E-Z kits" and did not mention that they are legal gun parts kits, not machinegun conversion kits.=20 He claims that the AK-47 has an upper and lower receiver, when in fact it has a one-piece receiver.[86] And he claims the legal .50 caliber rifle Block describes is probably an illegal .52 caliber Boys rifle, though Paul H. Blackman believes it is unlikely such a gun even exists.[87] (In its discussion of the probable cause investigation, the Treasury report corrects Aguilera's errors without mentioning it has done so.) =20 It is important to note that none of the former Branch Davidians who claimed they had seen or heard machineguns were knowledgeable about firearms, nor did Aguilera swear that they were. All identified the guns from pictures and from the fact that they fired more rapidly than normal shotguns. And none seemed to be aware the Branch Davidians owned "hellfire" devices that make the guns sound like machineguns. David Bunds, who Aguilera claims had arms' expertise, was never even interviewed.=20 Two non-weapons factual errors are of note. The affidavit states a former member "observed at the compound published magazines such as, the `Shotgun News' and other related clandestine magazines." However, Shotgun News is a legal, aboveboard publication with a distribution of 150,000.[88] Also, the affidavit repeats Joyce Sparks' inaccurate statement that Koresh made comments about the Los Angeles riots on a date three weeks before the riots began.=20 The Treasury report claims that, despite this error, Sparks' records show she did visit Koresh at Mount Carmel the day after the beginning of the riots. (TDR:125-126) c. Misleading Information =20 In 1978 the Supreme Court held in Franks vs. Delaware that a search warrant is invalid if the agent has misled or lied to the magistrate in order to get it.=20 Aguilera's affidavit describes child abuse allegations and the Texas Department of Protection and Regulatory Services investigation, but does not mention that the case was closed on April 30, 1992, with no evidence of child abuse.=20 Similarly, the affidavit states that a relative of an ex- member alleges "a false imprisonment for a term of three and one half (3 1/2) months," but does not mention that the FBI opened a (probably-related) case for "involuntary servitude" in April, 1992, and closed it in June, 1992. =20 The affidavit states that Branch Davidian neighbor Robert L. Cervenka reported what sounded like machinegun fire in February, but does not mention that the Branch Davidians discussed this allegation with a McLennan County Sheriff who assured them the "hell fire" devices they were using were legal. It states that a Deputy Sheriff heard a large explosion and saw smoke at Mount Carmel on November 6, 1992, but does not mention that the Sheriff didn't consider it important enough to investigate--or that the Branch Davidians were excavating for a large underground tornado shelter at the time. =20 The affidavit states that INS records show most foreign nationals had overstayed their entry permits or visas and that "it is a violation of Title 18, United States Code, Section 922 for an illegal alien to receive a firearm"; it does not provide evidence that any illegal alien was using a firearm. The affidavit states, "Howell forced members to stand guard at the commune 24 hours a day with loaded weapons," but does not mention that in 4 weeks of observation from the undercover house, agents saw no such armed guards. (TDR:53) =20 BATF experts told Aguilera that Koresh's gunpowder and igniter cord "were themselves explosives requiring proper registration and storage--neither of which Koresh provided." (TDR:124) However, Paul H. Blackman writes that since there was no attempt to contact Koresh to ask him what kind of storage he was providing, BATF did not know if it was being illegally stored. Moreover, the amount of gunpowder Koresh had was expressly exempt from the law, and no registration is required for igniter cord (U.S. Code, Title 18, Sec. 841 et.seq.; Title 26, Sec.5845(f)[89] d. Indefensible Probable Cause Theory =20 Aguilera's February 25th affidavit includes several serious allegations related to matters which are not under BATF's authority to investigate: child abuse, involuntary servitude, illegal drugs, and tax avoidance.=20 The Treasury report defends Aguilera's presenting this inflammatory material to the Magistrate. "While reports that Koresh was permitted to sexually and physically abuse children were not evidence that firearms or explosives violations were occurring, they showed Koresh to have set up a world of his own, where legal prohibitions were disregarded freely." (TDR:27) Paul H. Blackman writes, "Such a theory would allow law enforcement agencies to allow any allegations of any serious criminal activity to help to establish probable cause that all other criminal activities were also being engaged in. In law, the theory is currently indefensible."[90] 6. BATF IGNORED BRANCH DAVIDIAN ATTEMPTS TO COOPERATE The Treasury report alleges: "Aguilera wisely sought to keep his investigation a secret from Koresh and his followers. . .[and]. . .sharply circumscribed his inquiries about Koresh to third parties, including arms dealers and former cult members." (TDR:123) However, the Branch Davidians clearly knew that they were under surveillance, were worried about it and even tried to cooperate to with authorities. Evidence of their worry comes from Marc Breault's February 18, 1993, diary entry where he writes that Steve Schneider told his sister Sue: "Vernon is worried about the arms he has and what the Government might do about them. I asked Sue whether Steve mentioned illegal weapons.=20 She assured me that Steve did not mention illegal weapons, but only arms in general. Steve also said Vernon is searching Reuters and AP news services to find out anything about Government involvement in arms cases. . . Steve said Vernon is particularly interested in the Randy Weaver case."[91] The Branch Davidians were wise to worry that the fate that befell the Weaver family might befall them. a. Koresh Had Cooperated with More Serious Investigations The Treasury report claims, "There was, in fact, no evidence that Koresh was prepared to submit to law enforcement authorities or that he had done so in the past." (TDR:135) In fact, Koresh had been investigated on more serious charges than gun law violations and had cooperated fully with law enforcement. In 1987, when Koresh and seven Branch Davidians were indicted for attempted murder after the shoot out with George Roden, the Sheriff called Koresh and told him they should turn themselves in and surrender their weapons. When Deputies showed up to arrest them, they complied. Former McLennan County District Attorney Vic Feazell, who prosecuted Koresh in that case criticized federal agents, and said, "If they'd called and talked to them, the Davidians would've given them what they wanted."[92] In his February 25th affidavit Aguilera reports on the shootout but not Koresh's full cooperation with authorities. The Treasury report dismisses this evidence, given Koresh's "disdain for fire arms laws and hatred for those charged with their enforcement." (TDR:135)=20 The report includes a photograph of Koresh and followers dressed in fatigues and armed with weapons, allegedly right before the shootout. (TDR:19-20) =20 In 1991, when LaVerne, California police demanded Koresh return their child to Robyn Bunds, he did so immediately. Koresh and Sherri Jewell cooperated fully with the Michigan court which awarded custody of Kiri Jewell to her father. And between February and April, 1992, Koresh allowed Texas Department of Protection and Regulatory Services and McLellan County Sheriff's Department personnel to inspect Mount Carmel on three occasions and visited their offices once. b. Koresh Invited Sheriff to Inspect Weapons in 1992 As mentioned above, in February, 1992, Robert L. Cervenka complained to the Sheriff's office that he had heard machinegun fire at Mount Carmel. According to Aguilera's affidavit, he even "offered to allow the Sheriff to use his property as a surveillance post." Several months later Branch Davidians contacted the local Sheriff about this. The New York Times reports, "According to Mr. Fatta, the weapons the Davidians were firing at that time were legal AK-47s and AR-15s outfitted with a `hellfire trigger' that allowed for rapid firing without converting the rifles into fully automatic weapons. `We had heard that one of the neighbors had been approached about using their property as a listening post,' Mr. Fatta said several weeks ago, `and we went to the local sheriff's department and asked them if the hellfire triggers were legal, just to make sure. We were told that they were legal.'"[93] According to another article, they told the Sheriff, "why don't you come and ask us what we've got."[94] c. Koresh Invited BATF to Inspect Weapons in 1992 =20 The Treasury report alleges: "During the compliance inspection of Henry McMahon. . .Special Agent Aguilera deliberately led McMahon to believe that the inspection was a routine administrative inquiry." (TDR:186-188) However, it fails to mention McMahon's version of the visit. Because Aguilera and another BATF agent were asking Henry McMahon a lot of questions about Koresh, he immediately called Koresh to inform him.=20 According to McMahon, "He said, `If there's a problem, tell them to come out here. If they want to see my guns, they're more than welcome.' So I walked back in the room, holding the cordless phone and said, `I've got [Koresh] on the phone. If you'd like to go out there and see those guns, you're more than welcome to.' They looked at each other and Aguilera got real paranoid, shaking his head and whispering, `No, no!' And so I went back to the phone and told David they wouldn't be coming out."[95] =20 After Koresh's attorney Dick DeGuerin mentioned the incident during a media panel in September, 1993, reporters from two Houston papers contacted Jack Killorin, Chief of BATF's Public Affairs. He told one reporter he was not surprised that a federal agent rejected an offer to inspect weapons. "The preferred method by the law is going with the standard of getting a warrant before entering a home. We execute such warrants."[96] He told the other reporter, "Koresh's learning of the investigation in July 1992 had no effect on the raid or the resulting standoff between agents and cult members."[97] d. Lieutenant Lynch Statement on Another Service of Warrant =20 McLennan County Sheriff's Lieutenant Larry Lynch told the June 9, 1993, House Appropriations subcommittee hearing about having visited Mount Carmel with only a few officers to serve a warrant on an individual who no longer resided there.[98] One lawmaker asked BATF Chief of Intelligence David Troy about Lynch's statement. "Did you have a conversation with the local law enforcement officials regarding their previous service of arrest warrants and search warrants?" Troy replied, "That is the first time I had ever, myself, had heard that there had been an attempt that was not related to that shootout that occurred in 1987, to serve any type of legal document at the compound by any other enforcement agency. . .I don't believe they ever considered seriously driving up in that front yard and telling him we had a Federal search warrant for the place."[99] This attests to the BATF's failure to consult adequately with local authorities. BATF Associate Director Daniel Hartnett informed the subcommittee that at least one McLellan County Sheriff's Lieutenant was assigned full time to BATF planners.[100] This may have been Lieutenant Barber, who had had numerous contacts with both former and current Branch Davidians. Lieutenant Larry Lynch stated during the hearing that Lieutenant Barber was his superior during the February 28, 1993 raid.[101] Marc Breault claims it was Lieutenant Barber who called his complaints "sour grapes."[102] Clifford L. Linedecker writes that Branch Davidians discussed the Cervenka complaint and the hellfire devices with Lieutenant Barber.[103] It is unknown if the officer assigned to BATF--be it Lieutenant Barber or someone else--conveyed information about Branch Davidians past cooperation to BATF planners or if BATF ignored such information. One reason for any "communications breakdown" might be found Marc Breault's allegation, "ATF believes there might be a leak to Vernon from the McLennan County Sheriff's Department. They are bypassing the local authorities."[104] e. Koresh Befriended Undercover Agents =20 On January 11, 1993, eight undercover agents were assigned to pose as students living in the two bedroom house across the street from Mount Carmel Center. Branch Davidians immediately visited that house, but undercover agents refused to let them come in, despite their repeated requests. A few days later Koresh visited the family next door to the undercover house and told them he thought the "students" were FBI agents and that he was expecting a visit from the FBI. (TDR:Appendix D:8-9) Koresh said he doubted the men were students because they were too old, their cars were too new, they carried brief cases, and the owner had previously refused to rent the house to anyone. However, Koresh remained unsure as to which government agency had him under surveillance. (TDR:187) =20 Koresh then went out of his way to befriend agent Robert Rodriguez (who was working under the name "Gonzales"). He invited him to visit Mount Carmel Center, listen to music, and shoot guns in the back of Mount Carmel. (TDR:D-11) Koresh invited Rodriguez to take Bible studies and even invited him to join the Branch Davidians. After the fire Rodriguez admitted to reporters that Koresh's teachings did affect him. "`He was close,' he finally said, his voice cracking at the memory."[105] Koresh told KRLD radio reporters February 28th that he was disappointed that after his talks with Rodriguez, he and his superiors did not "understand" that Koresh was a serious religious person worthy of "respect." On Sunday, February 28th, Koresh was in a Bible study with Rodriguez when he was told that BATF and National Guard were approaching. Rather than take Rodriguez hostage, as he easily could have, he told Rodriguez that he knew BATF and the National Guard were coming and shook Rodriguez' hand as the agent left. =20 =20 f. Koresh Complained to Sheriff about UPS Surveillance On January 27, 1993, a special agent posed as a UPS trainee and accompanied a UPS delivery person to the MagBag and Mount Carmel Center. His attempts to get into the buildings made Koresh suspicious. He told the delivery person "I know we're being watched." According to the Treasury report, "This undercover effort was so transparent that Koresh complained to the local sheriff's department.=20 He accused the department of trying to infiltrate the Compound." (TDR:187-188) g. After Raid, Koresh Stated He Would Have Cooperated The above evidence lends credence to Koresh's claims on the publicly released February 28, 1993, "911" tape that he would have cooperated with authorities if they had contacted him. On the 911 tape Koresh told 911 operator Lieutenant Larry Lynch, "You see, you brought your bunch of guys out here and you killed some of my children.[106] We told you we wanted to talk. No. How come you guys try to be ATF agents? How come you try to be so big all the time?"=20 Later in the tape he says, "Now, we're willing, and we've been willing, all this time, to sit down with anybody. You've sent law enforcement out here before. . .And I've laid it straight across the table. I said, if you want to know about me, sit down with me and I'll open up a book and show you Seven Seals." After the February 28 raid, Koresh said to KRLD radio reporters, who asked how he felt about the 4 agents who died, "Unnecessary, my friend. These men, they don't know anything about me. They don't know what I teach.=20 I respect law enforcement. I loved the Waco Sheriff Department. They treated me good. When we had the child accusations against us, some Sheriff department guys came out and they treated us with the highest respect. . .Larry Abner. I loved the guy. I took him and I showed him around and everything. They took the children off where they can talk to them personally. Those kind of people I can deal with." When a reporter asked if he would have gone to town and discussed the weapons with the Sheriff's Department, Koresh answered, "I would have come. I would have come. I would have come." =20 The Houston Chronicle obtained tapes of telephone conversations between Koresh and BATF agent Jim Cavanaugh shortly after the assault. Koresh told the agent, "It would have been better if you just called me up or talked to me.=20 Then you could have come in and done your work."[107] 7. QUESTIONABLE GROUNDS FOR A PARAMILITARY RAID =20 Former New York City Police commissioner Benjamin Ward said of the BATF's February 28th raid on Mount Carmel, "They did it backwards. The accepted way is to talk first and shoot second."[108] Dr. Robert Cancro, one of the outside experts the Justice Department asked to review BATF and FBI's actions, wrote, "David Koresh asked why they did not serve him the warrant directly rather than through an armed assault. . .The issue is why was this not considered and evaluated more thoroughly and with adequate behavioral input." (JDR:Cancro:2) =20 One explanation is BATF's negative attitude towards what Time called "determined and fanatical groups." BATF spokesperson Jack Killorin declared, "We've gone about them in a number of different ways--ruse, ambush, siege and talk.=20 In almost every one we lose law enforcement officers."[109]=20 That BATF had no intention of allowing Koresh to cooperate is evidenced by Aguilera's rejection of Koresh's invitation, via gun dealer Henry McMahon, to look at his guns. Also, Marc Breault writes in his book that in December, 1992, Aguilera told him "that he felt Vernon was a lunatic and needed to be put away."[110] The Treasury report admits that BATF planners decided immediately that their only options were a siege (surrounding Mount Carmel until residents surrendered) or a "dynamic entry" or paramilitary raid. (TDR:38-43) Below are the highly questionable reasons BATF rejected both a simple search and a more complicated but less dangerous siege and went forth with a paramilitary raid by 76 heavily armed agents. a. Paramilitary Raids Are Preferred BATF Modus Operandi As BATF Director Stephen Higgins told the House Judiciary Committee, BATF "Special Response Teams" (SRTs) had made hundreds of similar "activations" during the last several years. Such "dynamic entry" raids--armed agents busting down doors and otherwise smashing into unsuspecting individuals' homes and businesses with barely a moment's notice of "search warrant"--are clearly BATF's preferred modus operandi. The Gun Owners of America video tape Koresh showed Agent Rodriguez criticized these Gestapo- like tactics.=20 Two BATF top planners were noted for their raid and siege experience. Dallas Special Agent-in-Charge Ted Royster had led many high profile raids, including the destructive and controversial raid on John Lawmaster's home.[111] And William Buford, Resident Agent-in- Charge of the Little Rock BATF office, had planned and participated in the 1985 siege of the white supremacist group "The Arm and Covenant of the Sword." (TDR:38) SAC Chuck Sarabyn, who would become co-commander of the February 28th raid, may have favored such a raid because it would be the first opportunity to test the "National Response Plan" which he had "played a significant role in drafting." This would also be only the fifth time more than one Special Response Team had been used in an operation. (TDR:62) BATF grandiosely named the operation "Operation Trojan Horse," because the agents were to be hidden in cattle trailers. (TDR:Appendix B:40) b. Cult Busters Advised Against Simple Search=20 Considering BATF's bias in favor of paramilitary raids, it is easy to understand why BATF investigators Davy Aguilera and Bill Buford accepted so uncritically cult buster "scare stories," which reinforced their commitment to such a raid. Marc Breault writes in his diary entry of January 8, 1993, that "ATF" asked him, "If Vernon received a summons to answer questions regarding firearms, would he show up?" Breault answered, "No way." ATF asked, "If the good guys came with a search warrant, would Vernon allow it?" Breault answered, "If Vernon were not expecting it, no. If Vernon had prior warning, yes. He'd have time to shift all the firearms. . .There is a considerable amount of danger because Vernon feels that since he is Jesus Christ, he has already died. Therefore he can skip that phase of things. Since he does not have to die, there is no resurrection and therefore he may well feel he can start shooting beforehand."[112]=20 Breault similarly had informed the U.S. Embassy in Australia in February, 1992, that "there would be a shootout with authorities if they attempt to enter the cult's Waco property to take away any of the children now living there, or investigate living conditions."[113] This had not happened when social workers and local sheriffs visited Mount Carmel, yet BATF heeded Breault's questionable advice. Doubtless, Rick Ross also was telling BATF investigators what he told the Waco Tribune-Herald--that Koresh was violent and dangerous.=20 The "deprogrammed" David Block told agents that he "left the cult group because [Koresh] would always remind them that if they were to have a confrontation with the local or federal authorities, that the group should be ready to fight and resist." The Treasury report admits, however, "as far as former cult members knew, Koresh had not specifically trained his followers to repulse law enforcement officers or other visitors perceived to be hostile." (TDR:45)=20 This cult buster-induced belief that Koresh would not cooperate was communicated all the way to the top.=20 Chief of Public Relations Jack Killorin claimed after the raid that Koresh was "sworn to resistance" and it was only prudent to have firepower.[114] And David C. Troy, chief of BATF's intelligence division, told a House Ways and Means subcommittee: "Once we had probable cause (to arrest him), he was so kinked up over government. . .that he would not come off the compound. . .And the people behind Vernon Howell (Koresh's birth name) were just as violent."[115] c. Cult Buster Mass Suicide Scare Stories=20 The Treasury report mentions a legitimate reason for not implementing a siege--the Branch Davidians might destroy evidence. However, it goes into greater detail about a more questionable reason--former Branch Davidians' concerns about the possibility of mass suicide should the government attempt a siege. Not surprisingly, Marc Breault promoted this idea "most forcefully." (TDR:46) In fact, the Treasury report admits, "The planners ultimately rejected the siege option mainly because the intelligence obtained in January from former cult members. . .Most significantly, they noted the distinct danger that Koresh would respond to a siege by leading his followers in mass suicide." (TDR:141)=20 Doubtless, Rick Ross promoted his "Jim Jones" comparison. d. Shoddy Intelligence=20 BATF planners decided they could only consider a siege if Koresh was arrested away from Mount Carmel when he was out jogging or in town. Agents believed that without Koresh's leadership, the other members would offer little resistance to a BATF search of Mount Carmel. The Treasury report admits agents received inaccurate information from social worker Joyce Sparks and undercover agent Robert Rodriguez that Koresh rarely left Mount Carmel. It also admits that the agents at the undercover house could not identify who left and entered by automobile. (TDR:136-140)=20 Only after the raid did BATF receive information that Koresh had left Mount Carmel a number of times during December, January and February, 1993. BATF did attempt to convince Texas Department of Protective and Regulatory Services to summon Koresh to town for a meeting so that BATF could arrest him, but they refused to become involved. BATF also tried obtain a Texas arrest warrant for Koresh for sexual activities with a young girl, but that fell through when the girl refused to testify. (TDR:64) e. Publicity Stunt to Bolster BATF's Image=20 In early 1993, BATF was a beleaguered agency.=20 Ronald Reagan and others had been calling for its abolition since the early 1980s. A newly elected liberal Democrat just might try to do it. The Waco Tribune-Herald was calling to find out why BATF wasn't doing something about the Branch Davidians weapons build up. And in mid-November, 1992, CBS's "60 Minutes" contacted BATF about an upcoming expos=82 about female BATF agents who charged routine sexual harassment and even attempted rape. The expos=82, which aired January 10, 1993, included damning statements by BATF agents. Agent Bob Hoffman exclaimed, "the people I put in jail have more honor than the top administration in this organization." Agent Lou Tomasell said, "I took an oath.=20 And the thing I find abhorrent and disgusting is that these higher-level people took that same oath and they violate the basic principles and tenets of the constitution and the laws and simple ethics and morality." A few weeks later, 15 black agents accused the agency of discrimination in hiring and promotion.[116] Facing Congressional appropriations hearings on March 10, 1993, BATF leadership may have felt it needed some good publicity to illustrate its effectiveness, something like the sight of BATF agents arresting dozens of religious fanatics and displaying a big weapons cache. Any later story that the guns were found to be legal and that charges had been dropped would never go beyond the local papers. Mike Wallace reran this January episode May 23, 1993, and declared, "Almost all the agents we talked to said that they believe the initial attack on that cult in Waco was a publicity stunt--the main goal of which was to improve the ATF's tarnished image."=20 During the June 9, 1993, House Appropriations subcommittee hearings lawmakers grilled BATF Public Information Officer Sharon Wheeler to determine if BATF Washington or local offices had been concerned with "the BATF image and whether or not this operation would impact on that image?" (Committee members did not ask the same question of Wheeler's superior David Troy, who was also at the hearing.) Wheeler denied two reporters' contentions that when she called them for weekend phone numbers she had told them, "we have something big going down" on Sunday.=20 She also asserted that she was told not to send out a press release "until we knew if there was significant things found in the compound, you know, evidence of violations."[117]=20 The Treasury report contends it was not BATF, but a private ambulance driver who tipped off the local television station KWTX. Their cameraman inadvertently tipped off a Branch Davidian to the impending raid. (TDR:159) f. Desire to Punish BATF Critic=20 Aguilera's February 25th affidavit asserts: "David Koresh stated that the Bible gave him the right to bear arms" and then showed undercover agent Robert Rodriguez a video tape which "portrayed ATF as an agency who violated the rights of gun owners by threats and lies." During the January, 1992 interview with Martin King for the Australian television program "Current Affair," Koresh gave his opinion about guns: "This is not Europe, not where a country overthrows a bunch of people, takes away their weapons so the people cannot argue any issues. Guns are the right of Americans to have. Yeah, we've got a gun here and there.=20 Most of the guns were sold. A lot of people say: `He's got guns, that makes him bad, that makes him a cult.'" When asked if he would use a gun if "someone" trespassed, Koresh answered, "They come in here with a gun and they start shooting at us, what would you do?. . .Our constitution states every citizen in American has the right to rebuttal the government. Guns? Yes, we have guns."[118]=20 It may well be that the Branch Davidians perceived "secessionist" tendencies disturbed BATF--and later the FBI. Sheriff Harwell said, "They were like living in another little country out there. They had their property line and they were basically good people. All of `em were good people. . .I don't know about Vernon Howell.=20 I think he really believed he was what he told everybody he was, and I think he was probably sincere in everything that he taught. But the other thing that he did was to teach the philosophy that once anyone crossed that property line out there it would be just like someone invading the United States."[119] Columnist Joseph Sobran wrote: "We are already being told how threatening David Koresh is to society at large, when apparently all he ever wanted to do was to secede from it. And this, I think, is the real nature of a cult: its desire to withdraw. Even before its physical isolation, it has rejected the moral and cognitive authority of the larger society. This disturbs everyone who feels wholly at home in that society and dependent on it."[120] 8. GOVERNMENT MULTI-TASK FORCE MAKES FOR "PARTNERS IN CRIME" The Treasury report describes the "multi-task force" of federal, state and local authorities used to carry out the BATF's February 28th raid. While BATF agents from three Special Response Teams carried out the actual raid, support was provided by the National Guard, Texas Department of Public Service employees, including the Texas Rangers, and the McLennan County Sheriff's Department. (TDR:79) At the June 9, 1993, House Appropriations subcommittee hearings, BATF Associate Director Hartnett explained that a Drug Enforcement Agency team was on hand to disassemble any methamphetamine laboratory which might be found, something not mentioned in the Treasury report. He also said that the Immigration and Naturalization Service and the U.S Marshals Service were involved.[121]=20 The problem with such federal, state and local "multi-task forces" is that they make all participants defacto "partners in crime," should crimes be committed against citizens--especially if federal agents commit the crimes. National legislation and federal funding for state and local law enforcement ensure that many state and local authorities may not be very aggressive in preventing or investigating federal crimes against citizens. The Treasury report states, "The Texas Rangers [were] deputized as U.S. Marshals for the criminal investigation and prosecution." (TDR:7) and "opened a formal homicide investigation" of the murder of federal agents by Branch Davidians. (TDR:116). (According to a Texas Rangers public affairs representative, they were deputized by the U.S. Attorney's office in Waco, Texas.) As we shall see, BATF and FBI interfered with Texas Rangers' attempts to conduct a complete and impartial investigation. After the fire, several Texas residents tried to file formal complaints with the Texas Rangers regarding what they believed to be the FBI murder of the Branch Davidians.=20 Texas Rangers and a representative of the Texas Attorney General told them that since all Texas Rangers investigators were deputized as U.S. Marshals, there was nothing that the state of Texas could do.[122] 9. DUBIOUS DRUG ALLEGATIONS TO OBTAIN HELICOPTERS FREE=20 The 1878 posse comitatus law, Section 1385 of the U.S. code, states U.S. military forces and state national guards cannot be used as police forces against civilians. However, courts have given law enforcement wide leeway in using military and national guard equipment and facilities. As BATF Associate Director Hartnett told Congress, "We use the military all the time for support with reimbursement."[123]=20 More recent modifications of the posse comitatus law (32 U.S.C. =15112 and 10 U.S.C. =15371) allow the military and national guard to provide "non-reimbursable" (i.e., free) support to civilian law enforcement if they are engaged in counter-drug operations. The Treasury report states BATF wanted to use military training facilities and equipment at Fort Hood, and Texas National Guard aerial reconnaissance before, and diversionary helicopters during, the raid. "However, in the absence of a drug nexus, ATF was told by both the U.S. military and the National Guard that the assistance would be reimbursable." (TDR:213) To get that free assistance, BATF constructed drug allegations from extremely shaky and dated evidence.=20 Marc Breault had told BATF that Koresh claimed that after he took over Mount Carmel from George Roden, "he had found methamphetamine manufacturing facilities and recipes on the premises." Koresh told Breault he had asked the local Sheriff to take them away, but the Sheriff had no record of doing so. (TDR:30) Breault never alleged having seen such a lab in his years at Mount Carmel. Undercover agent Robert Rodriguez told BATF, "Koresh had told him that the Compound would be a great place for a methamphetamine laboratory because of its location." Also, one Branch Davidian had a "prior conviction for possession of amphetamines and a controlled substance" and 10 others had been either arrested or investigated for drug violations in the past. (TDR:212)=20 However, as revealed to Congress, BATF admitted it knew the identity of the individuals most likely responsible for building this lab. "Roden allowed others to stay on the property and pay rent. Convicted narcotics trafficker Donny Joe Harvey and his associate, Roy Lee Wells, Jr., were verified by the McLennan County Sheriffs Department as residing at the compound. Both Harvey and Wells are incarcerated." BATF also admitted that it knew the last Branch Davidian to be convicted on drug charges was Brad Branch, back in 1983.[124] Finally, the statement Koresh allegedly made to the agent may well have been made within the context of George Roden tenants' former activities.=20 On the basis of this shaky information, Army Lieutenant Colonel Walker, who advised BATF on obtaining "training or equipment or support in a counter-drug operation," recommended BATF solicit Texas National Guard services.[125] BATF convinced the Texas National Guard to do two overflights of the buildings to look for "hot spots" that might indicate drug laboratory activity. A hot spot was found but, since it could indicate construction, cooking or other activities requiring heat, "no official interpretation of the `hot spot'" was provided. (TDR:213) Given this dubious evidence, it is not surprising that in the month after the raid, BATF denied to reporters that it had used allegations of a drug laboratory to obtain the helicopters. After press reports that BATF had obtained the helicopters under "false pretenses" angered Texas Governor Ann Richards, Hartnett sent her a March 27, 1993 memo to assure her that there had been sufficient evidence to invoke the drug "nexus" exception to the posse comitatus law and obtain free use of Texas National Guard helicopters. 10. CHRONOLOGY OF FEBRUARY 28, 1993 BATF RAID @ This chronology has been assembled largely from Appendix D of the Treasury Department report on Waco, other parts of the report and the February 28, 1993 "911" audio tapes. 7:30 am--BATF convoy arrives at Bellmead civic center. 7:45--KWTX television reporter and cameraman arrive nearby Mount Carmel.=20 8:00--Undercover agent Robert Rodriguez enters Mount Carmel for Bible study. --Raid Commander Chuck Sarabyn briefs ATF convoy at Bellmead Civic Center.=20 8:30--KWTX cameraman warns postman David Jones, a Branch Davidian, that a "shootout" is about to occur. Jones returns to Mount Carmel and warns Koresh.=20 8:45--Three Waco Tribune-Herald cars arrive nearby Mount Carmel.=20 9:05--Rodriguez leaves Mount Carmel, hurries to undercover house across the street, calls raid, Commander Sarabyn and tells him that Koresh knows BATF and National Guard =20 are coming. Commanders Sarabyn and Philip Chojnacki and SAC Ted Royster decide to go ahead with raid. 9:10--Chojnacki calls BATF National Command Center in Washington and informs them operation is a go. 9:25--Sarabyn arrives at Bellmead, announces operation is to proceed, tells agents "Hurry. They know we're coming." ATF agents board cattle trailers.=20 9:29--Helicopters carrying Chojnacki and Royster are on the way to Mount Carmel to create a "diversion." 9:30--A long convoy of cars, vans and 3 cattle trailers heads towards Mount Carmel.=20 9:45--Cattle trailers enter drive way of Mount Carmel, followed by KWTX television vehicle. 9:47--Sarabyn and Chojnacki end cellular telephone contact. =20 --Raid begins; helicopters and agents "taken under fire". =20 --KWTX video crew takes cover behind bus. 9:48--Wayne Martin calls 911 to report 75 armed men are attacking Mount Carmel. "Attempts continue (19 times) to reach ATF. Contact is finally established via TSTC =20 Patrolman `197' at 10:20 am." 9:55--Associate Director Hartnett and Director Higgins are informed agents are under fire. 10:03--911 Lieutenant Lynch calls back Mount Carmel after disconnection and talks continue. Martin complains about shooting from helicopters. 10:20--911 finally contacts ATF and Lieutenant Lynch helps Chojnacki and Royster negotiate cease fire. 10:34--Koresh calls 911, soon disconnects. 10:42--Koresh calls 911 again, soon disconnects. 10:46--Schneider and Koresh call 911 and discuss cease fire. 10:49--911 call disconnects. Lynch gives Koresh's cellular phone number to Royster who passes it to agent Cavanaugh at the undercover house.* 10:59--Lynch negotiates with Martin and Schneider on one line and Chojnacki and Royster on the other. 11:27--Cavanaugh finds telephone number on undercover house refrigerator door and calls into Mount Carmel and continues negotiations.* 11:30--Hartnett unilaterally requests FBI Hostage Rescue Team support.=20 11:39--Agents move in to pick up wounded and dead agents. 11:54--Ambulance moves in to pick up agents. 12:45pm Approx.--ATF agents physically assault KWTX cameraman taking pictures of dead agents. 12:37--Lynch gives Schneider Cavanaugh's phone number and direct contact is established.* Mid-afternoon--Branch Davidian Donald Bunds arrested as tries to return to Mount Carmel by car. 4:55--Agents fire on three Branch Davidians trying to re- enter Mount Carmel, Michael Schroeder killed, Delroy Nash arrested, Bob Kendrick escapes. 4:00-12:00--David Koresh gives KRLD and CNN radio interviews and tape of his sermon is played several times over KRLD.=20 Four children leave Mount Carmel.=20 5:30--FBI Special Agent-in-Charge Jeffrey Jamar arrives at command post. --Royster holds first press conference. 10:00pm--Hartnett and FBI Hostage Rescue Team arrive via FBI HRT plane. FBI takes charge at 10:00 am March 1, 1993.@@*=20 Seeming conflicts occur between accounts in Treasury report text and Chronology in Appendix D. ------------------------------------------------- Diagram and Drawing from Treasury Department Report - Not to Scale Drawing includes undercover house, the lake, Mount Carmel Center and hay barn. Altered to include concrete room, water tower, buried bus, missing room names. -------------------------------------------------- 11. BATF USED EXCESSIVE FORCE TO SERVE WARRANT=20 BATF's executing search and arrest warrants upon the Branch Davidians with 76 heavily armed agents utilizing a plan which provided no opportunity for the Branch Davidians to cooperate peacefully by itself constituted an excessive use of force. As we shall discuss in the section on the Branch Davidians' defense, their attorneys can make a strong argument that BATF's excessive use of force alone gave the Branch Davidians the legal right to shoot back in self- defense. a. Excessive Numbers of Agents and Weapons=20 During the June 9 House Appropriations subcommittee hearing, BATF Chief of Special Operations Richard L. Garner described the arms carried by 76 agents: every agent had a Sig Sauer 9mm semiautomatic pistol; 27 agents carried tactical carbine MP-5 9mm semiautomatics; snipers were equipped with .308 caliber high power sniper rifles; agents also carried 8 AR-15s and 12 shotguns.[126]=20 Agents also carried "flash bang" percussion grenades. 9mm rounds in submachine guns are highly-penetrating rounds available only to law-enforcement special operations teams and the military, and are specifically designed to cut through body armor. James L. Pate alleges that it was not humanitarian concerns or negotiations that ended the hour- long assault, but the fact that agents ran out of ammunition. They had only 40 rounds left when they finally backed off.[127]=20 b. Evidence BATF Did Not Properly Serve Warrants =20 Nothing in Aguilera's affidavit indicated that Koresh or his followers would use force to resist service of search and arrest warrants. Nor did the Magistrate give the necessary explicit permission for such a "no knock" warrant which would permit agents to bypass giving notice that they were serving a search warrant. Title 18, U.S.C. 3109 states that an officer must give notice of his legal authority and purpose before attempting to enter the premises. Only if an officer is refused entry is it legal for him or her to use force to gain entry.=20 Before the trial there was much suspicion that BATF never properly served the warrants. BATF spokesperson Jack Killorin told USA Today, "We needed 60 seconds of them not being prepared and we would have neutralized the compound and gotten the children out."[128] However, 60 seconds is barely time for an agent to walk to the front door of a large building, knock, wait for an adult to answer the door and formally announce that he was there to serve a search warrant. What BATF had planned was more like a military search and destroy mission than any constitutional effort.=20 News reports describe an armed attack.=20 "According to witnesses, federal agents hid in livestock trailers as they drove up to the compound. As three National Guard helicopters approached, the 100 law officers stormed the main home, throwing concussion grenades and screaming `Come out!' For a moment, there was no response. Then the shooting began. `It was a large barrage of gunfire from several places in the house at once,' said Dan Mulloney, a KWTX-TV news photographer who followed the agents onto the compound."[129] Koresh's attorney Dick DeGuerin asserted Branch Davidians alleged, "these two cattle trailers roar up, and people start screaming out of the back of them, screaming at the tops of their lungs, not anything like, `This is a search' or `We're agents' or `Put up your hands' or anything like that. It was just screaming, yelling, like Marines storming the beach."[130]=20 An FBI spokesman explained to a reporter why BATF agents would not have identified themselves, "you don't want to give these guys a chance to get their guns. In Waco, there was no announcement of who was there and the fact they're there for the lawful purpose of executing a warrant."[131]=20 It is obvious from Koresh's 911 conversation that even though he had heard it was BATF that was about to raid him, and even though he answered the front door himself, a half hour after the raid he was still confused about who was attacking him and why. He told Lieutenant Larry Lynch of the Sheriff's office, alluding to past talks with the office, "We told you we wanted to talk. No. How come you guys try to be ATF agents?"=20 On the fourth day of the trial BATF Special Agent Roland Ballesteros, the first to arrive at the front door, took the stand for six hours. Ballesteros acknowledged that BATF planners had never had a plan for peacefully serving the search and arrest warrants. He said no agent had been designated to announce the purpose of the raid. "Basically, we all announced. We practiced knocking, announcing, and then going through the front door." Asked if he ever rehearsed a peacefully entry, he answered, "No, we did not." Ballesteros was armed with a 12 gauge shotgun, 9mm pistol, and a 38 caliber handgun. He and two other agents were also armed with a battering ram.=20 Ballesteros testified he saw Koresh in the doorway, and yelled, "Police, lay down!" He said Koresh answered, "What's going on?" He yelled back, "Search warrant, lay down." However, defense attorneys pointed out that this was the first time he had mentioned seeing Koresh in the door or announcing he was serving a search warrant.=20 During his February 28, 1993 interview with the Waco police, his March 10th interview with the Texas Rangers, and a September 30th pre-trial hearing, he did not mention these facts. Ballesteros testified he had changed his story because during earlier testimony pain killers from a wound he suffered during the raid had dulled his memory.=20 What "jogged" Ballesteros' memory was a meeting with U.S. Customs agents who interviewed him as part of the Treasury Department's review of the raid. As a result of this interview, "He changed that version of the incidents. . .His Tuesday account of the early minutes of the bloody raid agreed with the account he gave customs agents."[132]=20 Considering that the Treasury Department was interested in exonerating BATF, it seems likely that U.S. Customs agents "helped" Ballesteros remember a version more consistent with the Treasury Department's version of events. Two days later another BATF agent, Robert Champion, testified that agents had identified themselves as police with a search warrant--something he also did not tell Texas Rangers in March. When questioned by defense attorneys, Champion said the Texas Rangers had not specifically queried him about that issue.[133] Branch Davidians and their attorneys see Ballesteros and Champion's new testimony as one more example of a massive government coverup. 12. ALLEGATIONS BATF AGENTS SHOT FIRST=20 The Treasury report describes a slightly different version of events than Ballesteros' version: "Koresh appeared at the front door and yelled, `What's going on?' The agents identified themselves, stated they had a warrant and yelled `freeze' and `get down.' But Koresh slammed the door before agents could reach it. Gunfire from inside the Compound burst through the door. The force of the gunfire was so great that the door bowed outward." (TDR:96) Branch Davidians tell the opposite story: Koresh told BATF he wanted to talk and agents started shooting at him, hitting the front door. (Note that the front door was actually a set of two doors, not a single door.) a. Agents Expected A "Shootout"=20 The Branch Davidians learned of the impending raid when KWTX camera man James Peeler asked directions of Branch Davidian David Jones, who was driving his mailman's truck. (Something which would BATF would not reveal to the public until six months after the raid.) Two slightly different versions of what Jones told Dick DeGuerin about the incident confirm the idea that agents were actually expecting a shootout. According to a news account, DeGuerin said Peeler told Jones, "Well, you better get out of here because there's a National Guard helicopter over at TSTC and they're going to have a big shootout with the religious nuts."[134] According to the Treasury report, Jones told DeGuerin that Peeler told him there were going to be "60 to 70 TABC (Texas Alcohol Beverage Commission) guys in helicopters and a shoot-out would occur." (TDR:85) Since KWTX's initial information came from a private ambulance driver working with BATF (TDR:189), BATF agents' expectations of a shoot-out were indirectly transmitted to the Branch Davidians.=20 Moreover, the morning of the raid, many agents read the Waco Herald-Tribune's February 27th story about the Branch Davidians and raid co-commander Chuck Sarabyn discussed the article with them during a briefing. (TDR:82)=20 The story was filled with cult buster accusations that the Branch Davidians were dangerous fanatics. Finally, at the trial, BATF agent Ballesteros admitted that BATF agents had been briefed that they would encounter 20 to 30 or more "Mighty Men." He said, "We anticipated we would be met with force."[135] =20 b. Over Sixty Agents Knew Branch Davidians Were Warned of Raid=20 After Jones discovered that a raid was imminent, he rushed back to Mount Carmel and told Koresh.=20 Koresh then told Rodriguez that he knew "ATF and National Guard" were coming and Rodriguez hurried across the street and called raid co-commander Chuck Sarabyn. After consulting with co-commander Philip Chojnacki, Sarabyn decided to go forward with the raid anyway and dashed out to the staging area shouting, "Get ready to go, they know we're coming!" and "Koresh knows the ATF and National Guard are coming!" (TDR:91) "Over sixty agents who heard Sarabyn on the day have since recounted" they heard him given these warnings. (TDR:195) On top of the propaganda they had absorbed about the Branch Davidians' alleged ferocity, this information must have unnerved many agents. c. Agents Confused by Poor Planning=20 Besides expectations of a "shootout" and knowledge that the Branch Davidians knew they were coming, obvious flaws in the planning may have heightened agents' anxiety. According to the Treasury report, there had never been a contingency plan for bad weather, the loss of surprise, armed resistance or retreat. The commanders of the raid were in a helicopter and a cattle truck where they could not communicate effectively with agents. Two-way radio communications quickly broke down between agents. (TDR:143-156) The Houston Post wrote, "Unless you have a very disciplined group, you can expect all hell to break loose once any shot is fired; and according to Charles Beckwith, a retired Army colonel and founder of the military's anti-terrorist Delta Force, the ATF's raid was `very amateur.'"[136] d. Branch Davidians Did Not Use "Tactical Advantage" Despite an excellent opportunity to shoot at oncoming vehicles--perched as they were in a large building on a hill with an excellent view of all oncoming vehicles-- the Branch Davidians did not do so. Justice Department outside expert Alan A. Stone commented, "The BATF investigation reports that the so-called `dynamic entry' turned into what is described as being `ambushed'. As I tried to get a sense of the state of mind and behavior of the people in the compound the idea that the Branch Davidians' actions were considered an `ambush' troubled me.=20 If they were militants determined to ambush and kill as many ATF agents as possible, it seemed to me that given their firepower, the devastation would have been even worse. . .The ATF agents brought to the compound in cattle cars could have been cattle going to slaughter if the Branch Davidians had taken full advantage of their tactical superiority." (JDR:Stone:18-19) Agent Ballesteros testified that BATF was "ambushed" because the Branch Davidians didn't shoot at them until they were up close to the compound. Needless to say, this is a rather nefarious way of describing what was more likely their prudently waiting to see if BATF's intentions were violent. Defense attorney Dan Cogdell dismissed the theory BATF was "ambushed" by dozens of heavily armed Davidians. "If there were 46 individuals that used fully automatic weapons we wouldn't have four agents dead, we'd have 100 dead," said Dan Cogdell[137] In fact, "another Branch Davidian survivor who asked not to be named acknowledged that some people inside began to return fire: `People were running around everywhere, asking if anybody had any guns. Nobody had any handy. Most of what we had was new, still in the box.'"[138] e. David Koresh's Allegations =20 On the evening of the February 28 raid Koresh described the first shots to a KRLD radio reporter: "I begged these men to go away. I had wives and I had children. But they didn't listen. . .They came out. I was at the front door. I had the front door open so they could clearly see me. And then what happened was, I told them, I said `Get back. There's women and children here. Get back.=20 I want to talk.' and all of the sudden 9mm rounds started firing at the front wall." The reporter asked, "Was that when you got wounded?" Koresh answered, "No. They hit the metal doors which deflected them. I had my face out where they could see me. And then I moved back and all of a sudden the guy started firing." That evening Koresh told CNN, "They fired on us first. Like I said, they were scared."=20 Deceased Branch Davidian Steve Schneider's attorney Jack Zimmerman says of Koresh's version, "That was confirmed by a number of people who heard him say that" and that ATF's version "is a lie."[139] One evidence of this is that just 15 minutes after the raid began, Wayne Martin told 911 Sheriff's Deputy Larry Lynch, "I have a right to defend myself. They started firing first." According to a news report, "On his way to a court hearing Wednesday, cult member Livingston Fagan, who left the compound Tuesday, told reporters ATF agents fired the first shots--a charge the ATF has denied."[140] f. Agent Ballesteros' Previous Allegations BATF Shot First=20 In earlier testimony to Waco police and Texas Rangers Agent Ballesteros said he thought that agents shooting at the Branch Davidians' dogs fired the first shot.=20 At the trial, he changed his story and testified that the Branch Davidians did so, shooting through the front door.=20 Again, he blamed medication for impairing his memory.[141]=20 (The only non-agent to testify that the Branch Davidians shot first was Waco Tribune-Herald reporter Marc Masferrer, who was about 300 yards away at the time. He testified that he thought the first shots came from inside the building. A defense attorney commented, "At that distance, those people would look like ants."[142]) g. Photos of Agents Firing Before Bullet Holes Appear in Front Door=20 Waco Tribune-Herald photos introduced at the trial show agents firing before any holes can be seen in the front door.[143] This certainly contradicts BATF agents' story that the Branch Davidians fired first, out through the front door and that "the force of the gunfire was so great that the door bowed outward," as the Treasury report puts it. h. Evidence Gun Shots Were Fired Inward through the Front Door=20 Contrary to BATF and Treasury assertions the Branch Davidians fired out through the door, Branch Davidians claim the first shots were fired at David Koresh and entered inward through the front door. Attorney Jack Zimmermann, who had an opportunity to examine the hollow metal front doors before the fire, stated that Branch Davidians would have fired out through windows, not the door. "What would cause that front door to be peppered with holes like that?"[144] The door was first rammed by tanks and then burned in the fire. Nevertheless, at the trial a Texas Ranger testified they did find one of the two front doors. One news report said the door was "crumpled, bullet- pocked"--but did not mention in which direction the bullets had entered. The Texas Ranger said "that while other doors and many metal objects had survived the fire, he believed that the missing door was destroyed in the intense heat."=20 When asked if FBI or BATF agents had access to the site immediately after the fire, he answered, "I'm sure they were both out there."[145] The possibility that BATF or the FBI destroyed this evidence after the fire must be investigated. i. Unreleased BATF Video Tape =20 Waco television station KWTX had not yet set up their camera when the first shots were fired. According to an Associated Press wire press story, "ATF associate director Conroy said a video tape taken from an ATF helicopter during the raid may help clarify the question of who fired the first shots in the deadly shootout that left four ATF agents and at least two cult members dead."=20 Supposedly BATF was operating more than one video camera, but it has refused to release any tapes.[146]=20 U.S. District Court Judge Walter A. Smith, Jr. ordered that all BATF audio and videotapes be persevered and presumably these will be released during the trial of the eleven Branch Davidians.[147] However, "the judge stopped short of ordering what the lawyers for Koresh and his lieutenant, Steve Schneider, had requested, which was that they be held by the court and not federal officials."[148]=20 (Judge Smith is the judge who will be presiding over the Branch Davidian trial.) If the government does not release these tapes during the trial, attorney's for Branch Davidians suing the government may subpoena them, or other individuals may seek to obtain them under the Freedom of Information Act. j. Audio Analysis from Video Tapes=20 Even if video cameras were not focused on the scene of the first shots as they were fired, the audio portion of the videotapes can still provide valuable information, such as, who shot first, whether a "flash-bang" grenade was thrown through a window, and whether there was shooting from helicopters. Because the audio comes from video tapes, the exact location from which the recordings were made will be easy to gauge and therefore the exact "geometry" of many of the echoes will be ascertainable with great accuracy. The sounds of shooting from inside the building, as opposed to from outside it, will be significantly different and provide useful evidence. Today IBM-compatible sound-analysis software is available which will allow anyone to do such analysis with great precision.[149] k. Law Enforcement Allegations=20 James L. Pate writes that two law enforcement sources confirmed to him that BATF shot first, Texas Ranger "sources," and "federal law enforcement sources." The latter said that a BATF agent had an accidental discharge as he got out of the cattle trailers in front of Mount Carmel.=20 He wounded himself in the leg and cried out, "I'm hit!"=20 Everyone then opened fire, thinking it was a signal to initiate fire. Pate also states that Steve Willis, one of the BATF agents killed in the raid, was assigned to "take out" Koresh if necessary and did fire an MP5 SD submachine gun at him from the passenger side of the lead pickup truck.[150] While this story may sound far fetched, it is certainly one of many allegations that must be explored by an independent investigator. 13. ALLEGATIONS AGENTS SHOT INDISCRIMINATELY AND FROM =20 HELICOPTERS.=20 The Treasury report states that BATF agents "returned fire when possible, but conserved their ammunition. They also fired only when they saw an individual engage in a threatening action, such as pointing a weapon." (TDR:101)=20 However, Branch Davidians claim BATF agents fired indiscriminately, including through walls, and that helicopters sprayed the building with bullets. News video tapes clearly show agents exercising little control over their firing as they fire over vehicles with little or no view of what they were shooting at. Both BATF Director Higgins at an April 2nd Congressional hearing and Treasury Secretary Bentsen during the September 1993 Treasury Department press conference denied allegations that agent fired indiscriminately.[151] BATF may allege that any firing down through roofs was done by Branch Davidians firing from the building tower or from the water tower. a. Bullet Evidence in Doors, Walls and Roof=20 Branch Davidians, and attorneys Dick DeGuerin and Jack Zimmerman who visited Mount Carmel during the siege, insist that there was extensive evidence that BATF agents shot indiscriminately through Mount Carmel Center's front door, walls and roof. They were very concerned with preserving this evidence of an out-of-control assault.=20 The New York Times reported, "both lawyers clearly believed that helicopters flying over the compound during the raid had fired into upper floors of the main building from above." ATF Spokesperson Jerry Singer denied that the helicopters had flown over the compound or fired upon it. "The helicopters did not overfly the compound on Feb. 28 and I have no information that anyone fired from the helicopters." However, Jack Zimmerman stated, and Dick DeGuerin concurred, "an expert will be able to tell from the angle of the trajectory plus the pattern whether there are entry or exit holes. If it's in the ceiling and it's clearly an exit hole, it had to come from above. How else could it have come in?"[152] Except for half the front door, all this evidence was destroyed by the April 19 tank rammings, the fire, and the bulldozing of still burning walls into the rubble. b. Wayne Martin Allegations on 911 tape=20 Wayne Martin and an unidentified Branch Davidian complain frantically to Lieutenant Lynch 15 minutes after the start of the raid about the continuing gun fire from BATF agents, even as they themselves withhold fire. Nearly continuous gunfire can be heard in the background of the tape.=20 Martin: Another chopper with more people; more guns going off. They're firing. That's them, not us.=20 Unidentified Davidian: There's a chopper with more of them. Lynch: What!?=20 Davidian: Another chopper with more people and more guns going off. Here they come!=20 Lynch: All right, Wayne, tell . . .=20 Davidian: We're not firing. That's not us, that's them!=20 Lynch: Okay. Tha . . . All right. Are you, are you ready to come out and give up? Are you ready to terminate this Wayne? Martin: We want to cease fire!=20 We'll stop! Lynch: Standby. [he then tries to get in touch with BATF radio van. There is more sound of gunshots]=20 Lynch: Sta . . . Who's firing now?=20 Davidian: They are!=20 Wayne: They are!=20 Lynch: All right. Standby. I'm tryin' to reach 'em.=20 Stand. Don't return fire, okay?=20 Davidian: We haven't been. Lynch: What?=20 Davidian: We haven't been. [sounds disgusted] =20 During the June 9, 1993, House Appropriations subcommittee hearing, an FBI agent gave a staff member an excerpted tape of the "911" calls between Lieutenant Larry Lynch and Branch Davidians David Koresh and Wayne Martin.[153] The tapes, which the Waco Police Department sells to the public, were edited into a 30 minute tape. The FBI claimed the tape was a "sampler of voice changes."=20 Lawmakers were led to believe the tape was verbatim.=20 However, Waco police said the tape gave a "false impression of how the events occurred."[154] If one compares the transcript of the tape in the hearing record to the Treasury Department's chronology, one finds that the section where Wayne Martin complains about helicopters shooting at him has been moved towards the end of the tape, which would have been well after the helicopters withdrew from the scene.=20 This might be evidence that someone wanted to discredit Martin's claims and cover up BATF's illegal actions.=20 =20 c. Agents Shot from Undercover House=20 The first days of the Branch Davidian trial confirmed what has been long suspected--that agents in the undercover house 300 yards from Mount Carmel were firing at the building. A Texas Ranger testified they had collected 40 used shell casings found in and around the undercover house.[155] The Texas Ranger also said that "friendly fire" could have struck the driver's door of one of the BATF pickup trucks that pulled cattle trailers on February 28th.[156] d. Catherine Matteson Allegation "I seen (sic) those trailers drive up. I was downstairs. I thought it strange, but I figured they were delivering firewood or something. I picked up the Sunday paper and went upstairs to my room, and started reading. When next, bullets came through the roof. I could hear the helicopters overhead, I got under my bed."[157] e. Children's Pictures of Bullets Through Roof =20 A story about psychologist Bruce D. Perry's interviews with Branch Davidian children who left Mount Carmel after the raid mentions, "Still another child created a picture of a house beneath a rainbow. When Perry asked, `Is there anything else?' the child calmly added bullet holes in the roof. That was an allusion to the Feb. 28 shootout with federal agents that marked the beginning of a 51-day standoff and left the compound near Waco scarred with bullet holes."[158] A May 19, 1993 Newsweek story shows this picture with the caption, "A girl drew her home's dotted roof. `Bullets,' she said." f. Questions about Deaths of 6 Branch Davidians =20 In opening statements on January 12, 1994, lead prosecutor U.S. Assistant Attorney Leroy Jahn said, "On February 28 the occupants of Mount Carmel (the cult compound) not only killed ATF, they killed their own.=20 People who were too wounded to fight were put out of their misery."[159] Prosecutors are referring to the deaths of Peter Hipsman, Winston Blake and Koresh's father-in-law, Perry Jones. The Treasury report alleges Peter Hipsman received a number of allegedly non-fatal wounds and was "later killed by a cult member who shot him at close range in the back of his skull--an apparent mercy killing." (TDR:101) It alleges Winston Blake's death by a shot to the head from two to three feet was from a "cult member." (TDR:104) However, it describes no other wounds. Neither does it describe other wounds to Perry Jones, who it states committed suicide with one shot to the mouth. (TDR:101)=20 However, Rita Riddle, who was at Mount Carmel during the BATF raid, stated Jones was shot in the stomach by bullets piercing the building walls.[160]=20 If these individuals did commit suicide or were shot in mercy killings, it may have been because they believed that the BATF raid was in fact the beginning of a prophesized government massacre. They may have wanted to die quickly rather than suffer before being killed by the "Babylonians." BATF retains direct responsibility for their deaths.=20 The Treasury report conflicts with statements by Branch Davidians that some dead members were not even armed at the time of the attack. Brad Bailey and Bob Darden write that the "official version"--which agents are not supposed to discuss--is that Peter Gent was carrying a gun on top of water tower, shot Steven Willis, and was then shot by a sniper--"possibly Rodriguez"--from the undercover house.=20 They note that the government denies Gent was shot from a helicopter.[161] However, attorney Dick "DeGuerin recounted how witnesses reported Gent was working, unarmed, in the water tower. `He was scraping the sides of the tank. There was very little or no water in it. He heard all the noise, came up and stuck his head out to see what was going on and he was shot through the heard. He fell within the water tower onto a platform.'"=20 Branch Davidians also claim Jaydean Wendell had just finished nursing her baby when a bullet shot from a helicopter came through the ceiling and penetrated her skull, killing her.[162] The New York Times repeated Rita Riddle's allegation a woman had been shot in her bed.[163]=20 The Treasury report offers no explanation for Jaydean Wendell's death from a distant shot by agents. Michael Schroeder, who was trying to return to Mount Carmel the afternoon of February 28, was shot six times, several times in the back. (TDR:104) More details about all these deaths may emerge during the trial. 14. ALLEGATIONS FRIENDLY FIRE INJURED OR KILLED SOME AGENTS BATF Chief of Intelligence David Troy told the press that "in the first two minutes, 16 agents were injured and four were killed."[164] It is certainly possible that in those first minutes terrified agents firing wildly from the ground and from helicopters injured and killed some of their own. During the trial a defense attorney asserted agents firing from the undercover house could also have killed or wounded some agents.[165] a. Two Different BATF Versions of Where Two (or Three) Agents Died=20 The Treasury report states two teams of agents climbed the roof to Koresh's second floor living quarters--a bedroom on the west side and allegedly an arms room on the east side. Agents Conway LeBleu and Todd McKeehan "were to enter Koresh's bedroom from the west side of the roof." (TDR:98) They were killed, but the report does not explain whether it was on the roof or inside the bedroom, who killed them, from what angle the bullets came, what kinds of guns killed them[166] and how their bodies were removed from the roof or room. During the trial BATF Agent Petrilli said that agents climbed to the roof and removed LeBleu and McKeehan's bodies from it.[167]=20 The Treasury version of two agents killed near or in the bedroom is substantially different from the version BATF originally released, which held that three agents were killed in the arms room.[168] The report admits, "Contrary to some publicly disseminated reports, none of the agents that entered the armory were killed." (TDR:100) The fact that BATF changed its story has given rise to speculations BATF is trying to cover up that McKeehan and LeBleu were killed by friendly fire, either from helicopters, ground fire, or agents shooting from the roof into the armory. The choppily edited KWTX video tape[169] of the entry into the arms room shows an agent throwing a device into and then firing into the room after three agents enter. Some claim this firing really killed the two agents; some claim it killed all three in the arms room, as BATF originally told news reporters. =20 However, the Treasury report claims that the agents threw the device into the window before entering and does not mention the agent firing into the room. "At the arms room, Agent Jordan managed to `break and rake' [i.e. break the window and clear glass shards] the window and Agent Buford threw a distraction device into the room.=20 Buford, Constantino and Jordan entered. Inside, Agent Buford saw a person armed with an assault rifle backing out of a doorway in the far left corner of the room. That individual began firing into the room from the other side of the thin walls." Buford was shot twice in the upper thigh and Constantino provided cover as Buford and Jordan escaped the room. "As Constantino was deciding whether to hold his position or make a run for the window, a cult member entered the room aiming an assault rifle at him. He fired two or three shots at Constantino. Constantino returned fire and the man fell." (TDR:98-100) There is no mention of whether Constantino was in or out of the room when he shot.=20 Some of this confusion was clarified on February 25, 1994 when Agent Constantino testified at the Branch Davidian trial. He said that a portion of the bullet removed from Agent Jordan was 9mm "hydroshock" bullet like his own and acknowledged "it's possible" he may have shot Jordan. He did not know if a ballistics test had been done to determine if the bullet was from his gun.[170] More investigation of this incident and a careful study of the full KWTX videotape of this incident remain necessary. b. "Federal Sources" Admit Evidence Exists =20 The April 5, 1993 Newsweek reports, "A federal source involved in the Waco situation says that `there is evidence that supports the theory of friendly fire,' and that during the assault "there was a huge amount of cross- fire."[171] Another highly placed federal source told James L. Pate "about half of ATF casualties in the raid apparently resulted from `friendly fire'."[172] c. Agents Allege Friendly fire=20 According to the New York Times, "One agent said that some people involved in the raid believed that some agents had been hit by so-called friendly fire, although the agent and others said they knew of no evidence to support that belief. The agency has strongly denied the possibility that any agents were wounded by other agents."[173] During January 25, 1994 trial testimony both Agents Constantino and later Agent Buford admitted that they suspected or had heard of friendly fire incidents.[174] 15. BATF INTIMIDATION OF THE PRESS=20 BATF agents and officials were originally convinced that the press had purposely tipped off the Branch Davidians. They accused KWTX reporter John McLamore and cameraman Dan Mulloney of making a deal with the Branch Davidians that they would tip them off if they were allowed to hide in a tree and tape the raid.[175] Some BATF agents and families accused the publisher of Waco Herald-Tribune of being a "murderer" for running his series on the Branch Davidians, despite BATF requests to hold it off until after the raid.[176] Later they blamed Waco Tribune-Herald reporter Mark England because undercover agent Rodriguez heard a Branch Davidian tell Koresh "England" was on the phone just before he learned of the raid.=20 On March 17, 1993, BATF agent John T. Risenhoover filed a lawsuit claiming that an unnamed Waco Tribune-Herald employee called David Koresh and warned him about the impending BATF raid. Risenhoover, who was wounded in the ankle and hip, sought damages for hospital costs and mental anguish. According to the Treasury report, BATF agents had tried to convince the newspaper not to publish their expos=82 of the Branch Davidians until after the raid and mistakenly thought they had an agreement to that effect. (TDR:69)=20 Risenhoover's lawsuit also claimed the newspaper reneged on an agreement to withhold its series on the Davidians until BATF completed its investigation. One assumes this is something higher-up BATF officials would have to have told Risenhoover. However, the editors denied ever making such an agreement, and SAC Chojnacki was very angry or "hot," because editors said they were unconcerned about how their series would affect raid plans. (TDR:71) BATF immediately distanced itself from Risenhoover's lawsuit. "This is strictly between the agent and the newspaper," said BATF spokeswoman Sharon Wheeler.[177] However, many suspect that this was just part of a broader government effort to intimidate the press and the media. 16. BATF COVERUP =20 The Treasury Department report admits only that BATF commanders tried to cover up their decision to go ahead with the raid despite the loss of surprise, and that several officials disregarded evidence that they were covering up.=20 Below we list evidence that this admitted coverup is but one of many. a. Dubious Allegations about Koresh Statements =20 Undercover agent Robert Rodriguez alleged in the second, March 5, 1993 affidavit that when Koresh learned of the impending BATF assault he said to Rodriguez, "Neither ATF or the National Guard will ever get me. They got me once, and they will never get me again." However, neither the BATF or the National Guard had ever arrested or "gotten" Koresh before, so this statement would seem to be either a fabrication or a misunderstanding of a Koresh statement. =20 b. Unverified Reports of Machine Gun Fire and Grenades The Treasury report alleges "unrelenting automatic and semiautomatic weapons fire" from the Branch Davidians. (TDR:101) However, according to Paul Blackman, "firearms experts who have heard videotapes of the incident have heard no such regular rapid fire."[178] Also, news reports state, "Officials said today that two of the wounded agents were hit by fragments of hand grenades lobbed from the compound."[179] Again, we will not have certain evidence until the government releases all audio and video tapes. We do not know if it is possible to distinguish between BATF "flash-bang" grenades and explosive ones.=20 c. False Report Members Try to "Shoot their Way Out" At 4:55 p.m. on February 28 Branch Davidians Michael Schroeder, Delroy Nash and Woody Kendrick together approached Mount Carmel in an effort to re-enter it. They came upon BATF agents Dyer, Brigance and Appel who were moving away from the hay barn and towards the evacuation point. The agents claim that when they identified themselves, the three shot at them and the agents returned fire. (TDR:111, Appendix D:19) Schroeder was shot six times but escaped into the brush where he died. His body was not recovered for several days. Nash was arrested and Kendrick escaped; he was arrested a few days later. =20 Initially, BATF told the press these individuals were shot trying to shoot their way out of Mount Carmel. BATF's original, inaccurate story has raised suspicions that BATF agents are trying to cover up an improper attack on the three Branch Davidians. Evidently, BATF never adequately corrected this story. As late as April 20, the Washington Post reported in a sidebar, "Sunday, Feb. 28. . .6 p.m. Three cult members storm out of the compound."[180] During the trial, Bob Kendrick and Delroy Nash, who were with him at the time, will present the Branch Davidian's side of the story about their meeting with federal agents near the "hay barn." d. BATF Denies Branch Davidians Captured and Released Four BATF Agents=20 Dick DeGuerin and Jack Zimmerman assert that four BATF agents were captured inside the compound in the gun battle, disarmed, then released during a cease-fire.=20 "They had their arms up, threw down their guns, and were taken into custody. That much is clear from the videotape. Their release and the entire cease-fire was a suggestion of the Branch Davidians." Waco television video tapes of the raid show people coming out of the compound with their hands up, but, according to news reports "it was not clear whether the people had been caught in the crossfire or had come from inside the compound." However, BATF spokesperson Jerry Singer "denied that agents of the bureau were captured and then released. `No,' he said, `It did not happen.'"[181] =20 However, during the June 9, 1993, House Appropriations subcommittee hearing, McLennan County Sheriff's Lieutenant Larry Lynch mentioned his negotiations with Wayne Martin regarding "ATF wounded." "I still had Wayne on the line and was working with Wayne to get ATF into the--back into the compound to get their wounded. . .I would talk to Wayne and get Wayne's assurance that there would not be firing, that ATF was coming in to retrieve their wounded."[182] Perhaps BATF prefers to consider its agents "wounded," rather than "captured." However, if government- issued weapons had been found after the fire, it would support the Branch Davidians' contention and show that BATF told yet another lie. We do not know if such guns were found.=20 e. BATF Takes Gun Dealer McMahon Into "Protective Custody" =20 On March 1, 1993, BATF agents took custody of gun dealer Henry McMahon and his woman friend Karen Kilpatrick who had recently moved to Florida. In September, 1993, Dick DeGuerin told the Freedom of Information Foundation media panel on Waco: "They told these two people they were in danger from Branch Davidians who were not inside Mount Carmel who might try to kill them and convinced them to ask for protective custody. Mr. McMahon and his friend soon realized they'd been tricked into asking for protective custody but ATF flew them to Oregon. . .flew them down to Waco. The purpose of that was to prevent you from talking to them."[183] In late April, 1993, McMahon and Kilpatrick were interviewed on a Pensacola television show "Lawline." They stated that during these weeks BATF agents tried to keep them away from both the FBI and the press.[184]=20 James L. Pate alleges that BATF agent Davy Aguilera lied when he stated that McMahon had referred to Koresh as "my preacher" and when he alleged McMahon tried to hide from him the fact that Howell and Koresh were the same person, allegations repeated in the Treasury report. (TDR:26, Appendix D:5) Pate writes: "Interviewed by phone about the Treasury report's claims, McMahon told SOF that he and his girlfriend/business partner Karen Kilpatrick informed Aguilera truthfully that Koresh was `a' preacher, not their preacher. `We were never members of that church-- never went to a single church service out there,' Kilpatrick told SOF. . .As for properly identifying Koresh to the ATF, McMahon said gun dealers are required to check drivers' licenses for identification on paperwork documenting gun purchases. McMahon did so, using a Texas driver's license for identification on paperwork identifying the buyer as Vernon Wayne Howell." Knowing Koresh had changed his name, McMahon wrote "in parentheses after Howell's name on the ATF yellow forms: `AKA David Koresh.' Henry McMahon wasn't trying to hide anything from anyone and Aguilera knew this.=20 But Aguilera lied. . .in an effort to discredit McMahon's knowledge of ATF wrongdoing."[185] McMahon has not been charged with conspiracy to manufacture machineguns, despite his selling many weapons to the Branch Davidians. f. Paul Fatta Charged After Leaving Waco=20 Another individual who could attest to the Branch Davidians' legal gun business was Paul Fatta, who ran the business. He was in Austin with his son at a gun show on the morning of February 28. When he returned to Waco that afternoon, Fatta called radio station KRLD, which had been interviewing David Koresh. The station broadcast Fatta telling the radio interviewers that authorities had refused to give him information, and that he wanted to get back to Mount Carmel. According to Ron Engelman, who talked to Paul Fatta several times during the siege, Fatta then offered his assistance in bringing about a peaceful end to the standoff.=20 However, authorities refused his help and were abusive towards him. After a week he left Waco for Oregon. BATF immediately issued a warrant for his arrest on the charge of conspiracy to manufacture and possess unregistered machine guns and stated that he was "armed and dangerous." Engelman said this action frightened Fatta into believing that BATF would murder him if he surrendered to them.[186] Fatta finally surrendered to Texas Rangers in Houston on April 26.=20 "Mike DeGuerin, Mr. Fatta's attorney, said his client did not surrender earlier because of his mistrust of federal agents."[187] g. Raid Commanders and BATF Officials Covered Up Loss of Surprise =20 Part Two, Section Seven of the Treasury report is entitled "ATF Post-Raid Dissemination of Misleading Information About the Raid and the Raid Plan." (TDR:193-209)=20 The report states, "raid commanders Chojnacki and Sarabyn appear to have engaged in a concerted effort to conceal their errors in judgement. And ATF's management, perhaps out of a misplaced desire to protect the agency from criticism, offered accounts based on Chojnacki and Sarabyn's statements, disregarding clear evidence that those statements were false." (TDR:193)=20 When BATF finally informed higher Treasury Department officials of the planned raid Friday, February 26, 1993, then Acting Assistant Secretary of the Treasury John P. Simpson decided the action was too dangerous and "directed that the operation not go forward." Also expressing reservations was Ronald K. Noble, the designated but unconfirmed Assistant Secretary of the Treasury for Law Enforcement, who was acting as a consultant. In a Friday night conference call, Higgins told Simpson and Noble that he had obtained reassurance from raid co-commander Philip Chojnacki that the "raid could be executed safely" and that "the raid would be aborted. . .if things did not look right," i.e., if there was any evidence of a "change in routine." Simpson allowed the raid to go forward, "after these assurances were given." (TDR:75-76) During the June 9, 1993, House Appropriations subcommittee hearing Higgins stated he "instructed Dan [Hartnett]. . .if there is any indication that we have lost that element of surprise, simply do not do the raid. And I was assured that would be the case."[188] Noble told the same committee Higgins told him, "if for any reason they lose the element of surprise. . .express orders or directives to call off the operation."[189]=20 However, even after Chojnacki learned from his co-commander Chuck Sarabyn that the Branch Davidians knew BATF was coming, and after consulting briefly with SAC Ted Royster--who did not have an official title for the raid, but was still a raid leader, he allowed the raid to go forward. Chojnacki even called the National Command Center in Washington and reported that the raid was commencing. He did not report that the Branch Davidians knew about the raid. When Rodriguez learned that the raid was underway he was "distraught." (TDR:89-91, 165)=20 It would be almost two months before this account of what really happened that morning would be related to the press and public. >From the start, BATF officials denied reports like the Los Angeles Times that an agent was heard shouting, "We've gotta move. He's been tipped off."[190] BATF's Law Enforcement Associate Director Daniel Hartnett, Deputy Associate Director Edward Conroy, and Intelligence Division Chief David Troy, who became the principal BATF spokesperson, immediately interviewed undercover agent Rodriguez and three other agents who were with Rodriguez when he made the important call to Sarabyn.=20 All confirmed that Rodriguez had told Sarabyn that Koresh knew that BATF raid was imminent.=20 However, Hartnett and Troy gave less credence to their stories than to commander Chuck Sarabyn's story that Rodriguez "was not real descriptive as to the ATF-National Guard statement" and commander Philip Chojnacki's claim that Sarabyn hadn't told him anything about Koresh's foreknowledge. So Troy continued to deny to the press that the commanders knew that Koresh had been alerted to the impending raid. (TDR:196-199) Meanwhile, the Texas Rangers were gathering even more evidence, including from 60 BATF agents, that raid commanders Sarabyn and Chojnacki knew that they had lost the element of surprise. They passed this along to Hartnett and Conroy. However, "Hartnett and Conroy failed to keep [BATF Director] Higgins informed about the mounting weight of evidence that Sarabyn and Chojnacki's account was false," so Higgins continued to mislead the press and public. In late March Director Higgins wrote a memo to BATF agents denying there was a coverup of "mistakes in planning, leadership or both" after he discovered some agents were planning to make coverup allegations to the media.[191]=20 Finally in early April, after a number of agents contacted Higgins directly to complain about these misstatements, did Higgins ask for a copy of Rodriguez statement. Yet for another month he allowed Hartnett and Conroy to instruct Troy to keep misleading the press. Only under pressure from the Treasury review team did Sarabyn, Chojnacki, Hartnett and Conroy finally admit to their roles in the coverup. (TDR:199-206) SAC Ted Royster also participated in the coverup, claiming he did not know that surprise had been lost. When Noble threatened him with disciplinary action, "Royster then sent agents a three-page letter outlining personal pressures and career problems that caused his memory lapse."[192]=20 Chojnacki and Sarabyn also tried to cover up their lack of professionalism and errors by altering the written plan of the raid, which they had not issued before it took place. They did not tell the Texas Rangers or the Treasury review team that it had been altered. They then tried to blame the alterations on a lower ranking agent who had assisted them and finally admitted the truth to the review team. (TDR:208-210) Immediately after the release of the Treasury Department report on Waco, Treasury Secretary Bentsen put Hartnett, Conroy, Troy, Chojnacki and Sarabyn on administrative leave. Hartnett and Conroy immediately resigned. Bentsen also removed BATF Director Higgins, who had another month to go before retirement.=20 The Treasury Department is willing to admit to this coverup because so many disgusted and vocal agents had complained about it. However, both BATF agents and the Treasury Department continue to defend BATF's slipshod investigation and excessive use of force in serving the search and arrest warrants. Therefore we cannot rule out the possibility of other coverups which only an Independent Counsel investigation can discover. h. Raid Commanders May Have Lied about Firing from Helicopters=20 According to the Treasury report raid commander SAC Philip Chojnacki was in one of the three National Guard helicopters "at the outset of the firefight." (TDR:154)=20 According to Clifford L. Linedecker, Ted Royster was also in one of the helicopters.[193] Both Chojnacki and Royster would go on to lie to their superiors about whether they knew if the element of surprise had been lost. Therefore, we must wonder if they also lied about whether there was firing from helicopters. i. Government Keeps Warrants Sealed After Koresh Sees Them=20 On February 28, 1993 BATF had the Magistrate seal the contents of the affidavit and search and arrest warrants "to ensure the integrity of an ongoing criminal investigation against Vernon Wayne Howell and others. It is believed that evidence may be altered should the direction of the investigation become evident." This prevented the public from discovering the grounds for the raid. "One problem with either criticism or support for the government is that the reasons for the raid remain largely secret. The original search and arrest warrants remain sealed, and the ATF won't say exactly what it was looking for, or what information it has. The agency has insisted that it has a legal right to keep the warrants sealed until they have been executed."[194]=20 On March 19th the FBI delivered to Koresh "copies of legal documents concerning the ATF warrants." (JDR:74) Despite the fact that Koresh now knew the contents of both the February 25th and the later March 5 affidavit and search warrant, the government refused to release these to the press and public until April 20, 1993, the day after Koresh's death. j. Possibility BATF will Tamper with Audio/Video Evidence=20 Above we noted that U.S. district court Judge Walter A. Smith, Jr. ordered that all BATF audio and videotapes be preserved. However, defense attorneys had requested that the judge retain the tapes to prevent any tampering to delete evidence of government wrongdoing or create evidence of Branch Davidian wrongdoing. With modern audio and video techniques, such tampering can go virtually undetected; therefore, the government's keeping the tapes assures that many will continue to doubt whatever evidence they present. k. BATF Involved with Texas Rangers' Investigation=20 As we have seen the U.S. Attorney's office in Waco deputized the Texas Rangers as U.S. Marshals for the criminal investigation and prosecution. Nevertheless, there is evidence of continued BATF interference with the investigations--including after the fire. The Justice report states, "a memorandum of understanding between the FBI and ATF gave the ATF jurisdiction in cases involving the injury or death of their own agents." (JDR:23) It was BATF agents Aguilera and Dunagan who continued to issue search and arrest warrants during the siege.=20 The Texas Rangers took charge of the ruins of Mount Carmel the afternoon of the fire. During the first days of the trial, a Texas Ranger "recounted barricading the site after the standoff to assure there would be no coverup."[195] Nevertheless, during the next few days BATF and FBI agents had access to the crime scene--and ample opportunity to tamper with evidence. News video tapes and photos clearly show that BATF agents hoisted a BATF flag over Mount Carmel's still smoldering ruins. And the Treasury report admits "after the Compound was ravaged by fire, ATF firearms explosives experts collected evidence of the firearms and other destructive devices Koresh and his followers had possessed." (TDR:128) Again, many believe that deputizing state investigators as U.S. Marshals prevented them from fully investigating possible BATF and FBI crimes against the Branch Davidians. l. Questions About Weapons Found After the Fire =20 The Treasury report states, "based on the materials recovered, the experts concluded that Koresh possessed: 57 pistols, 6 revolvers, 12 shotguns, 101 rifles, 44+ machineguns, 16+ silencers, 6 flare launchers, 3 live grenades plus numerous components, and 200,000 rounds of unused ammunition." (TDR:128) Two 50 caliber rifles were among the rifles found.[196] Among these items, only the machineguns, the live grenades, and the silencers would have been illegal. During the third day of the trial, Texas Rangers reported finding 48 machine guns, one silencer, six pieces of tubing being converted into silencers, but no live grenades among the many grenade parts. Also, the expert said there was no way of knowing if any of the machineguns actually had been fired.[197]=20 As we have seen, BATF--and FBI--agents had access to the ruins of Mount Carmel for 24 hours after the fire. BATF had the time and opportunity to tamper with evidence. And they certainly had the motive--excusing the February 28 raid which killed four of their agents and set in motion the 51 day siege and caused the death of 86 or more Branch Davidians. These facts, and BATF agents' history of coverup in this issue, have prompted wide speculation that BATF "planted" evidence in the form of burned illegal weapons. However, news reports have not mentioned defense attorneys questioning the authenticity of the weapons found.=20 Further, there has been little discussion of whether the illegal machine guns, grenades and silencers were assembled from legal parts before the February 28th raid by 76 armed BATF agents, or after it, by Branch Davidians, in self-defense. Papers filed at the time Schroeder agreed to plea bargain state that she "admitted being an armed guard from the day of the initial raid until March 12th, when she left the compound. Though she was unarmed during the actual shootout, she admitted that after the standoff began, she carried a semiautomatic AR-15 rifle and later a fully automatic AR-15 machinegun when she took up her guard posts."[198] The fact that she admitted to carrying automatic weapons only "later" might be evidence that they were manufactured after the BATF attack. 17. TREASURY DEPARTMENT COVERUP=20 The Treasury Department report does expose inept planning and execution of the BATF raid on the Branch Davidians. However, it defends the probable cause basis for the search and arrest warrants and excuses the decision to go forward with a paramilitary raid. There is other disturbing evidence of coverup which support the argument that an Independent Counsel must be appointed to investigate the federal government's destruction of the Branch Davidian religious group. a. Ronald K. Noble Conflict of Interest=20 In late April, 1993, Treasury Secretary Lloyd Bentsen selected Assistant Secretary of the Treasury for Law Enforcement Ronald K. Noble to head the investigation of BATF's handling of the raid on the Branch Davidians. As we know, Noble approved the decision to go ahead with the raid.=20 Since he had not been confirmed, Noble had no formal authority at that point. However, he still retains moral responsibility. So Noble would seem to have little interest in issuing a report that would either challenge significantly BATF's investigation or operations modus operandi or energetically seek evidence of criminal behavior on the part of BATF agents or officials. b. No Testimony Taken Under Oath=20 There is no indication that any individuals gave testimony under oath to those who conducted the review. In fact, the Treasury's "review team" seems to have been hampered in getting at the whole truth by "employment contracts," the "Privacy Act" and the "Federal Advisory Committee Act." (TDR:6) There is also no evidence that any of the BATF officials who testified before Congressional committees were sworn in, though they still could be prosecuted were it proved they had lied to a Congressional committee. Therefore, much of the truth about what really happened at Waco will come out only during the trials of the Branch Davidians, civil law suits against the government or through an independent investigation. c. Treasury Department Attempts to Seal Investigation Records=20 In mid-August 1993 the Treasury Department proposed a rule to exempt the Treasury Department's report from public scrutiny. "In accordance with the requirements of the Privacy Act of 1974, as amended, Departmental Offices, Office of Enforcement is proposing to exempt a system of records, the Waco Administrative Review Group Investigation (DO/.207) from certain provisions of the Privacy Act. The exemptions are intended to increase the value of the system of records for law enforcement and investigative purposes, to comply with legal prohibitions against the disclosure of certain kinds of information, and to protect the privacy of individuals identified in the system of records. The exemptions are intended to increase the value of the system of records for the fact finding investigation and administrative review performed by the Waco Administrative Review Group so as not to reveal local, state or Federal law enforcement techniques, sources and methods or affect the ability of law enforcement agencies to prosecute people for criminal wrongdoing."=20 The Treasury Department gave the public a month to comment. It received 5,150 telegrams and letters, most in the last few days before the deadline. Representative Pat Schroeder wrote: "I strongly oppose this rule. While I can appreciate the Treasury Department's desire to complete a successful investigation and prosecute people for wrongdoing, the public and media's right to know should not be compromised."[199]=20 Austin's Freedom of Information Foundation sent out a press release supporting the Reporters Committee for Freedom of the Press. It said "any reporters who were targeted in the investigation should have access to the findings and be allowed to amend any records about themselves. . .In addition, the committee said the notice of the exemption is too broad and would exempt all records of the review group, not just those that are withheld for the purposes outlined in the exemption."[200] David Kopel, director of Firearms Research Project in Denver said, "I think it is a scandalous attempt to cover up the facts surrounding one of the greatest governmental disasters in the 20th century." Larry Pratt of the Gun Owners of America--which has protested the fact that BATF considers Koresh's showing its videotapes as evidence of criminal intent--asserted, "I think this means that not only is the fox in charge of the chicken coop, he's not going to let anyone inside to see how many bones he's picked clean."[201] d. Treasury Department Report Demonizes Koresh and Branch Davidians=20 The Treasury report excuses any errors in BATF's investigation or affidavit of probable cause and its overly aggressive paramilitary raid by demonizing Koresh and the Branch Davidians. "The extraordinary discipline that Koresh imposed on his followers, which enable him, for example, to obtain all their assets and to establish exclusive sexual relationships with the Compound's female residents, while not itself cause for ATF intervention, made him far more threatening than a lone individual who had a liking for illegal weapons. The Compound became a rural fortress, often patrolled by armed guards, in which Koresh's word--or the word that Koresh purported to extrapolate from the Scriptures--was the only law. And the accounts of the former cult members, including an abused child, that Koresh was sexually abusing minors made it clear that Koresh believed he was beyond society's laws. Were Koresh to decide to turn his weapons on society, he would have devotees to follow him, and they would be equipped with weapons that could inflict serious damage." (TDR:127)=20 Branch Davidians deny Koresh took all their assets and controlled their sex lives. And government is not empowered to assault individuals or groups merely because they could conceivably "decide" to attack others.=20 It is interesting to note that despite the government's assertion the Branch Davidian's were under Koresh's spell, BATF Associate Director Daniel Hartnett told the June 9, 1993, House Appropriations subcommittee hearing that it would have been difficult to lure Koresh away from Mount Carmel because he "feared that some of the people in side the compound, his followers, were going to turn against him," and "he was almost paranoid--at least the way it was being described to me--that something was going to happen to him by his followers."[202] e. Evidence of Coverup in the Treasury Department Report Throughout this report we have noted where the Treasury report has failed to provide information--even when it would not seem necessary to "redact" it per law--or has provided questionable information. The examples most indicative of coverup are: no mention of the Branch Davidians legal weapons business; ignoring or correcting Davy Aguilera's misleading or inaccurate statements without mentioning he made them; not including Aguilera's affidavit in the Treasury report; supporting Aguilera's contention that McMahon lied to him about Koresh and Howell being same person; no acknowledgement of Koresh's past cooperation with law enforcement; not discussing whether publicity was a BATF motivation for the raid; not admitting that BATF knew that George Roden's former tenants were known drug traffickers; not admitting that BATF initially denied they had made a claim of a drug nexus to obtain free military and National Guard support; not admitting that no agent was assigned to announce the search warrant, that a battering ram was to be used, or that Chuck Sarabyn warned agents to expect gunfire; no mention of allegations of friendly fire or agents firing from helicopters; no mention of the false initial report that three Branch Davidians tried to shoot their way out of Mount Carmel; no mention of Henry McMahon being taken into protective custody or of Paul Fatta being put on the "most wanted list" after offering his help to BATF.=20 f. Treasury Department Has Taken No Further Action Against Agents or Officials=20 In early October, 1993, Robert Cesca, Treasury Deputy Inspector General, was reviewing whether to launch a full scale investigation of agents and officials actions.=20 As we have seen, two BATF agents and two BATF officials were immediately put on administrative leave and Director Higgins was dismissed one month before the end of his term. Any charges the inspector general's office might recommend would be referred to the Justice Department. In late September, Representative Charles E. Schumer, chair of the House Judiciary Subcommittee on Crime said he thought "those involved should be fully prosecuted." However, a call to his office revealed he was only calling for prosecuting agents for official misconduct, such as lying to superiors.=20 Similarly, these are probably the only prosecutions the Treasury Department might consider. As of January, 1994, there had been no action to prosecute anyone. g. No Recommendations to Prevent Future Tragedy =20 What lessons has BATF learned from Waco? Only two, it would seem--they need better guns and better spies. An official at the Treasury Department's September 30, 1993, press conference can be heard to utter a comment about the need for better guns. And John W. Magaw, acting director of BATF, stated he was determined that other religious "cults" not develop into "armed compounds." "They're out there.=20 They don't yet have the kind of weaponry that we saw in Waco. . .but they will develop if society allows them to."=20 Magaw said ATF is keeping tabs on "cult-like organizations" in "three or four places around the country. . .We're trying to monitor way early in the game."[203] During an October, 1993 House Appropriations subcommittee hearing Philip K. Noble told lawmakers: "Although we cannot prejudge all future situations, we must be open to the possibility that a dynamic entry--exposing agents, innocent persons and children to gunfire--may simply not be an acceptable law enforcement option.[204] Time will tell if BATF ends its aggressive modus operandi. 18. COMMITTEE FOR WACO JUSTICE CONCLUSIONS a. BATF Drove Branch Davidians to Armed Defense =20 The Committee for Waco Justice believes that the Bureau of Alcohol, Tobacco and Firearms drove the Branch Davidian religious group to self-defense because of its conspicuous surveillance, its refusal to acknowledge Branch Davidian attempts to cooperate, its collusion with "cult busters" committed to destruction of the group, and its use of excessive force in executing search and arrest warrants.=20 Given their religious views that the government was intent on massacring them, it is understandable why the Branch Davidians resorted to armed defense. While we believe this was not the wisest choice, we believe that it was legal self-defense. b. Independent Counsel Should Prosecute Responsible BATF Agents and Officials =20 Under current law the Attorney General can appoint an Independent Counsel to identify and prosecute any BATF agents and officials suspected of committing any and all relevant crimes, including the following: * =20 Official Misconduct for disobeying superior's orders and covering up their disobedience; this would apply to anyone found participating in any other to-be-discovered coverups. * Negligent Homicide for carrying out an unnecessary and ineptly planned paramilitary raid, against specific orders, which resulted the deaths of four BATF agents and five Branch Davidians;=20 * Homicide or Manslaughter in the death of Branch Davidian Michael Schroeder should it be learned that the alleged "shootout," on the afternoon of February 28, 1993 was in fact an unlawful and/or excessive use of force against Schroeder;=20 * Conspiracy against the Rights of Citizens U.S. Code Title 18, Section 241 reads: "If two or more persons conspire to injure, oppress, threaten, or intimidate any inhabitant of any State, Territory, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his=20 free exercise or enjoyment of any right or privilege so secured- they shall be fined not more than $10,000 or imprisoned not more than 10 years, or both: and if death results, they shall be subject to imprisonment for any term of years or for life."=20 * Deprivation of Rights Under Color of Law U.S. Code Title 18, Section 242 reads: "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if bodily injury results shall not be fined under this title or imprisoned not more than ten years, or both; and if death results shall be subject to imprisonment for any term of years or for life."