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 24 ---- conspirators as they endeavored to serve arrest and search warrants. All in violation of Title 18, United States Code, Section 1117. 25 ---- 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. 26 ---- 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 27 ---- 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 28 ---- 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 29 ---- 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. 30 ---- 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. 31 ---- 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. 32 ---- 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. 33 ---- 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. 34 ---- 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. 35 ----