From: [i--s--t] at [delphi.com]
Newsgroups: talk.politics.guns
Subject: Davidian Jury Instructions 3/7
Date: Tue, 22 Feb 94 01:27:41 -0500

                           OVERT ACTS
 
     Count One of the Indictment alleges that the Defendants and
their conspirators, known and unknown, committed the following
overt acts in furtherance of such agreement and conspiracy:
     1.  On August 4, 1992, in the Western District of Texas,
Vernon K. Howell, also known as David Koresh, executed
documentation covering the purchase of 88 lower receivers for the
AR-15 rifle, 16 handguns, and 10 rifles from Hewitt Handguns.
     2.  On February 28, 1993, in the Western District of Texas,
Special Agent Steven D. Willis of the Alcohol, Tobacco and Firearms
was shot and killed by conspirators while he was attempting to
execute search and arrest warrants.
     3.  On February 28, 1993, in the Western District of Texas,
Special Agent Robert Williams of the Alcohol, Tobacco and Firearms
was shot and killed by conspirators while he was attempting to
execute search and arrest warrants.
     4.  On February 28, 1993, in the Western District of Texas,
Special Agent Conway C. LeBleu of the Alcohol, Tobacco and Firearms
was shot and killed by conspirators while he was attempting to
execute search and arrest warrants.
     5.  On February 28, 1993, in the Western District of Texas,
Special Agent Todd W. McKeehan of the Alcohol, Tobacco and Firearms
was shot and killed by conspirators while he was attempting to
execute search and arrest warrants.
     6.  On February 28, 1993, in the Western District of Texas,
Agents of the Federal Bureau of Investigation were fired upon by
 
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conspirators as they endeavored to serve arrest and search
warrants.
     All in violation of Title 18, United States Code, Section
1117.
 
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                    ELEMENTS OF COUNT ONE
 
     Title 18, United States Code, Section 1117 makes it a crime
for two or more persons to conspire to murder federal officers.
     For you to find any Defendant guilty of this crime, you must
be convinced that the government has proved each of the following
beyond a reasonable doubt as to that Defendant:
 
     First:    That two or more persons made an agreement to
               commit the crime of murder of federal agents as
               charged in the Count Two of the Indictment;
 
     Second:   That the Defendant under consideration knew the
               unlawful purpose of the agreement and joined it
               willfully, that is, with the intent to further the
               unlawful purpose;
 
     Third:    That at least one of the conspirators during the
               existence of the conspiracy knowingly committed at
               least one of the overt acts described on pages
               ______ of these Instructions, in order to
               accomplish some object or purpose of the
               conspiracy; and
 
     Fourth:   That the Defendant under consideration conspired to
               kill federal agents with the requisite intent of
               malice aforethought, as defined on page __ of these
               Instructions.
 
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                          CONSPIRACY
 
     A "conspiracy" is an agreement between two or more persons to
join together to accomplish some unlawful purpose.  It is a kind of
"partnership in crime" in which every member becomes the agent of
every other member.
     One may become a member of a conspiracy without knowing all of
the details of the unlawful scheme or the identities of all the
other alleged conspirators.  If a defendant understands the
unlawful nature of a plan or scheme and knowingly and intentionally
joins in that plan or scheme on one occasion, that is sufficient to
convict him or her for conspiracy even though that defendant had
not participated before and even though the defendant played only
a minor part.
     The government need not prove that the alleged conspirators
entered into any formal agreement, or that they directly stated
between themselves all the details of the scheme.  Similarly, the
government need not prove that all of the details of the scheme
alleged in the indictment were actually agreed upon or carried out.
Nor must it prove that all of the persons alleged to have been
members of the conspiracy were such, or that the alleged con-
spirators actually succeeded in accomplishing their unlawful
objectives.
     Mere presence at the scene of an event, even with knowledge
that a crime is being committed, or the mere fact that certain
persons may have associated with each other, and may have assembled
together and discussed common aims and interests, does not
 
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necessarily establish proof of the existence of a conspiracy.
Also, a person who has no knowledge of a conspiracy, but who
happens to act in a way which advances some purpose of a
conspiracy, does not thereby become a conspirator.
     You must determine whether the conspiracy charged in the
Indictment existed, and, if it did, whether the Defendant under
consideration was a member of it.  If you find that the conspiracy
charged did not exist, then you must return a not guilty verdict as
to that count of the Indictment, even though you find that some
other conspiracy existed.  If you find that the Defendant under
consideration was not a member of the conspiracy charged in the
Indictment, then you must find that Defendant not guilty even
though that Defendant may have been a member of some other
conspiracy.
     In your consideration of the conspiracy offense as alleged in
the indictment you should first determine, from all of the tes-
timony and evidence in the case, whether or not the conspiracy
existed as charged.  If you conclude that a conspiracy did exist as
alleged, you should next determine whether or not each Defendant
willfully became a member of such conspiracy.
     In determining whether a defendant was a member of an alleged
conspiracy, however, the jury should consider only that evidence,
if any, pertaining to his or her own acts and statements.  He or
she is not responsible for the acts or declarations of other
alleged participants until it is established beyond a reasonable
doubt, first that a conspiracy existed; and second, from evidence
 
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of his or her own acts and statements, that the defendant was one
of its members.
     On the other hand, if and when it does appear beyond a
reasonable doubt from the evidence in the case that a conspiracy
did exist as charged, and that the defendant under consideration
was one of its members, then the statements and acts knowingly made
and done during such conspiracy and in furtherance of its objects,
by any other proven member of the conspiracy, may be considered by
the jury as evidence against that defendant even though he or she
was not present to hear the statements made or see the acts done.
     This is true because, as stated earlier, a conspiracy is a
kind of "partnership" so that under the law each member is an agent
or partner of every other member, and each member is bound by or
responsible for the acts and statements of every other member made
in pursuance of their scheme.
     An "overt act" is any act knowingly committed by one of the
conspirators, in an effort to effect or accomplish some object or
purpose of the conspiracy.  The overt act need not be criminal in
nature, if considered separately and apart from the conspiracy.  It
must, however, be an act which follows and tends toward accomplish-
ment of the plan or scheme, and must be knowingly done in further-
ance of some object or purpose of the conspiracy charged in the
indictment.
     You must be unanimous in your decision of which overt acts, if
any, were committed.  In other words, it would not be a unanimous
verdict if some of you believed one overt act was committed while
 
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others of you believed a different overt act had been committed.
Additionally, the government must prove beyond a reasonable doubt
that at least one of these alleged overt acts was committed in
order to accomplish some object or purpose of the conspiracy by at
least one member of conspiracy.
 
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     A conspirator is responsible for offenses committed by other
conspirators if the conspirator was a member of the conspiracy when
the offense was committed and if the offense was committed in
furtherance of, or as a foreseeable consequence of, the conspiracy.
     Therefore, if you have first found a Defendant guilty of the
conspiracy charged in Count One, and if you find beyond a
reasonable doubt that during the time the Defendant was a member of
that conspiracy, other conspirators committed the offenses in
Counts Two, Three, and/or Four in furtherance of or as a
foreseeable consequence of that conspiracy, then you may find the
Defendant guilty of Counts Two, Three, and/or Four, even though the
Defendant may not have participated in any of the acts which
constitute the offenses described in Counts Two, Three, and Four.
The reason for this is that a conspirator committing a substantive
offense pursuant to a conspiracy is held to be the agent of the
other conspirators.
 
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                            COUNT TWO
 
     Count Two of the Indictment charges that on or about February
28, 1993, in the Western District of Texas, Defendants, Brad Eugene
Branch, Kevin A. Whitecliff, Clive J. Doyle, Jaime Castillo,
Livingstone Fagan, Paul Gordon Fatta, Woodrow Kendrick, also known
as Bob Kendrick, Norman Washington Allison, also known as Delroy
Nash, Graeme Leonard Craddock, Renos Avraam and Ruth Ottman Riddle
by aiding and abetting unknown principals and each other did
knowingly, willfully and unlawfully kill, with malice aforethought,
ATF Special Agents Steven D. Willis, Robert Williams, Conway C.
LeBleu, and Todd W. McKeehan, Special Agents of the Bureau of
Alcohol, Tobacco and Firearms, while said agents were engaged in
the performance of their official duties, by shooting the said
Agents with a firearm, in violation of Title 18, United States
Code, Sections 1114, 11119(a), and Title 18, United States Code,
Section 2.
 
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                    ELEMENTS OF COUNT TWO
 
     Title 18, United States Code, Section 1111 makes it a crime
for anyone to murder another human being.  Title 18, United States
Code, Section 1114, makes it a crime to kill a federal official,
including an Agent of the Bureau of Alcohol, Tobacco and Firearms,
in the performance of his official duties.
     For you to find any Defendant guilty of murder of a federal
agent, you must be convinced that the government has proved each of
the following elements beyond a reasonable doubt as to that
Defendant:
 
     First:    That the Defendant under consideration aided and
               abetted the killing of ATF Special Agents Steven D.
               Willis, Robert Williams, Conway C. LeBleu and Todd
               W. McKeehan without lawful justification;
 
     Second:   That the persons killed were federal officers as
               described below, who were then engaged in the
               performance of their official duty, as charged;
 
     Third:    That the Defendant under consideration aided and
               abetted the killing of ATF Special Agents Steven D.
               Willis, Robert Williams, Conway C. LeBleu and Todd
               W. McKeehan with malice aforethought; and
 
     Fourth:   That the Defendant under consideration did not act
               in self-defense.
 
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                        MALICE AFORETHOUGHT
 
     "To kill with malice aforethought" (or "attempt to kill with
malice aforethought" as is applicable in Count Four) means either
to kill (or attempt to kill under Count Four) another person
deliberately and intentionally, or to act with callous and wanton
disregard for human life.  To find malice aforethought, you need
not be convinced that the Defendant under consideration hated the
persons killed (or attempted to be killed under Count Four), or
felt ill will toward the victim at the time.
     In determining whether the killing (or attempted killing under
Count Four) was with malice aforethought, you may consider the use
of a weapon or instrument and the manner in which death was caused
(or attempted under Count Four).
     You should consider all the facts and circumstances preceding,
surrounding, and following the killing (or attempted killing under
Count Four) which tend to shed light upon the condition of mind of
each Defendant, before and at the time of the killing (or attempted
killing under Count Four).  No fact, no matter how small, no
circumstance, no matter how trivial, which bears upon the questions
of malice aforethought should escape your careful consideration.
 
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                       SCOPE OF EMPLOYMENT
 
     You are instructed that an Agent of the Bureau of Alcohol,
Tobacco and Firearms is one of the federal officers referred to in
this law, and that it is part of the official duty of such an
officer to execute search and arrest warrants issued by a Judge or
Magistrate Judge of this Court.  To find a Defendant guilty of this
offense, you must determine that the government has proved beyond
a reasonable doubt that ATF Special Agents Steven D. Willis, Robert
Williams, Conway C. LeBleu and Todd W. McKeehan (or Special Agent
Charles Meyer under Count Four) were acting within the scope of
their official duties as agents of the ATF.  You are further
instructed that as a matter of law the ATF agents were not acting
within the scope of their official duties if they were engaged in
a personal frolic or acting merely as a private citizen.  If you
determine that the government has failed to prove beyond a
a reasonable doubt that ATF Special Agents Steven D. Willis, Robert
Williams, Conway C. LeBleu and Todd W. McKeehan (or Special Agent
Charles Meyer under Count Four) were acting within the scope of
their official duties as agents of the ATF, you must find the
Defendants not guilty.
 
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