The Davidian Massacre by Carol Moore

CHAPTER TWO

 BATF'S FLAWED INVESTIGATION

 

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.

David Koresh, February 28, 1993, on 9-1-1 Tape

 

      In May of 1992 United Parcel Service (UPS) 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.  It is important to understand that a vicious paramilitary raid was conducted on a house filled with women and children despite the facts that Davidians ran a legal business, BATF found no evidence of illegally purchased weapons, and the "probable cause" to obtain a search warrant was based on biased, stale, inaccurate, and misleading information.  Moreover, the evidence that illegal guns were found remains suspect.

CHRONOLOGY OF INVESTIGATION AND RAID PLANNING

      This chronology is largely drawn from the Treasury Department report's Appendix D or from sources referenced in the following pages.

June--BATF assigned Special Agent Davy Aguilera to investigate.  Assistant U.S. Attorney Bill Johnston, who had shown little interest in former members' complaints in 1990, encouraged Aguilera.  Lieutenant Gene Barber provided Aguilera with what the Treasury report calls "a detailed account of Koresh's alleged attempt to kill George Roden."1/
June-August--Aguilera investigated companies which had sold weapons to David Koresh and discovered the Davidians had purchased almost $43,000 worth of weapons from March 26 to August 12, 1992, after which such purchases virtually ceased.
July--Davidians visited sheriff's office to confirm that their "hell fire" triggers were legal.
July 30--Aguilera and agent Skinner inspected Henry McMahon's records and rejected David Koresh's offer by telephone to show him his guns.
August 8--Skinner returned to McMahon's and received full documentation prepared by Koresh for BATF of his weapon purchases.
September-October--Aguilera was assigned to U.S. Secret Service "protective details at three week intervals" and the case was temporarily dropped.
October--Waco Tribune-Herald reporter contacted Assistant U.S. Attorney Bill Johnston about the paper's planned exposé of the Branch Davidians' alleged child abuse and arms buildup.  Aguilera's supervisor Earl Dunagan told him to start work on an affidavit for search and arrest warrants.
November--"60 Minutes" television show contacted BATF about a planned exposé of the agency.  BATF officials in Washington demanded more intelligence on Davidians.
November 3--Aguilera interviewed former members in California who had no information about guns.
November 20--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."2/
December 4--At first major meeting in Houston, raid commanders discussed logistics and media interest in Davidians.  Special Agents Phillip Chojnacki, Chuck Sarabyn and Ted Royster were given top roles in planning and execution.
December 11--BATF agent met with Texas National Guard about assistance.  Guard went on to overfly Mount Carmel and took photos twice in January, 1993.
December 24--Meeting in Washington where BATF Associate Director of Enforcement Daniel Hartnett and Deputy Director Edward Conroy demanded that more probable cause be developed and tactical plans slowed down.  BATF Director Stephen Higgins told the House Judiciary Committee on April 28, 1993 that, as of that date: "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," i.e, they started interviewing disgruntled former members in earnest.
January 7-9--Buford and Aguilera interviewed former members Jeannine, Robyn and Debbi Bunds, Marc Breault and others in Los Angeles.
January 11--Undercover house across from Mount Carmel was opened.  Davidians immediately visited it, suspecting those inside were government agents.
January 25--Buford and Aguilera interviewed former member David Block.
January 27-29--At meeting in Houston raid planners decided to do paramilitary raid instead of siege.
January 27--BATF agent posing as a UPS trainee visited Mount Carmel.  Koresh complained to sheriff's office about obvious surveillance.
January 28--Undercover agent Robert Rodriguez made first of several visits to Mount Carmel Center.
February 12--BATF Director Higgins was first fully briefed on the plan.
February 22--Aguilera and Dunagan briefed McLennan County Sheriff's office about raid support requests.  Young Kiri Jewell was interviewed by the District Attorney.  Waco Tribune-Herald reporter Mark England called David Koresh with questions about "The Sinful Messiah" series.
February 24--Raid planners learned Waco Tribune-Herald would begin running their "Sinful Messiah" series on February 27th.  BATF rescheduled the raid from Monday, March 1st to Sunday, February 28th.  Set up for training of BATF agents began at Fort Hood military base.
February 25--BATF agents began training at Fort Hood.  Aguilera, with the assistance of Assistant U.S. Attorneys Bill Johnston and John Phinizy, produced a "Probable Cause Affidavit in Support of Search Warrant."  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.3/
February 26--BATF informed Treasury Department officials of the raid plan and officials canceled it.  BATF Director Higgins convinced officials that because of the Waco Tribune-Herald 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."4/  Higgins told officials that raid planners had assured him that the raid would be called off if the element of surprise was lost.  Treasury officials approved the raid.
February 27--The Waco Tribune-Herald published first installment of "The Sinful Messiah" series.  BATF agents finished training at Fort Hood and moved into Waco.
Sunday, February 28--Television cameraman unknowingly informed Davidian about expected "shootout" and Koresh told undercover agent Rodriguez that he knew government agents were "coming."  Rodriguez told superiors that Koresh was forewarned, but raid commanders proceeded with raid.

*
TREASURY DEPARTMENT AND BATF CHAINS OF COMMAND
*
FEBRUARY 28, 1993
*
TREASURY DEPARTMENT
*
Lloyd Bentsen - Secretary of the Treasury
John P. Simpson - Acting Assistant Secretary
Roger Altman - Deputy Treasury Secretary
Ronald K. Noble - unconfirmed Assistant Secretary of the Treasury for Enforcement (acting as a consultant)
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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 Phillip 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 Team 1 leader
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 Rodriguez - undercover agent
SAC--Special Agent-in-Charge
ASAC--Assistant Special Agent-in-Charge
RAC--Resident Agent-in-Charge
SA--Special Agent
 

BATF BY-PASSED LOCAL AUTHORITIES

      BATF had little contact with local authorities.  Davidian Clive Doyle described Koresh's dealings with local sheriffs: "David always welcomed people in.  He had given the invitation to sheriff's deputies to call or come out if they had any questions about anything.  A Texas Ranger had come out there.  He was welcomed.  Deputies came out on a social basis. . .to fish, trade guns or car parts, talk about cars or guns.  They would drive by and wave, very friendly."5/
      In fact, it is likely BATF investigators and planners considered the McLennan County Sheriff's Department to be too friendly to Koresh. Texas Department of Social Services social worker Joyce Sparks has charged that the Sheriff's Department sabotaged the child abuse investigation by warning David Koresh she was coming and dissuading her from staying too long.  In response, Sheriff Jack Harwell told reporters, "I won't go on someone's property without legal reason to be there.  I have to comply with the law.  Just go out and talk to them, what's wrong with notifying them?"
      BATF was concerned about alleged leaks when they wanted to question young Kiri Jewell about Koresh's alleged abuse of her in February, 1993.  So much so, they first had her flown to Austin and then drove her to Waco to by-pass the Sheriff's Department completely.6/
      During a congressional hearing it was revealed that one McLennan County Sheriff's Lieutenant, evidently Gene Barber, was assigned full-time to BATF planners.7/  However, I found no evidence that BATF agents consulted anyone else in the department.  BATF's ignoring the McLennan County Sheriff's Department seems to be merely one more symbol of federal law enforcement arrogance.

BATF INFLUENCED BY "CULT BUSTERS"

      The Cult Awareness Network (CAN) actively urges the press and law enforcement to act against any non-mainstream religious, psychological or even political movement which it describes as a "cult."  These have included groups as diverse as Catholic monasteries and yoga and karate classes.  CAN accuses such groups of sharing similar patterns of mind control, group domination, exploitation and physical and mental abuse.8/  CAN's many critics say "cults" should more properly be called "new religious movements."  And they point out that so-called mind control techniques are little different than the education and socialization techniques used by all schools, churches, ideologies and philosophies.
      CAN's former executive director Cynthia Kisser admitted to one reporter that her group would have investigated Jesus Christ himself.  "If he were alive now, we'd take an interest in him because of the great controversy surrounding his fringe activities.  We'd ask him for the same information we seek from cults today--financial data, information on his practices and so on.  We'd try to see if there was abuse, unethical behavior or deceptive practices.  And I'd send whatever we could find to reporters."9/
      CAN critic Dr. Gordon Melton charges CAN and its associates have found two successful methods of disrupting groups: false anonymous charges of child abuse and kidnapping and kidnapping and "deprogramming" members.  Because anonymous reports of child abuse are legal under current law, they are a perfect way for a group with its own agenda to disrupt other groups.  The Children of God, known in the United States as "The Family," claims CAN members have made many such false accusations, resulting in dozens of arrests--with all charges quickly dropped.  They have demanded a congressional investigation of CAN.  Deprogramming often involves kidnapping, imprisonment of, and mental, and even physical, abuse of the individual targeted for deprogramming.10/  These deceptive and even violent tactics have given anti-cult activists the reputation of being "cult busters."
      CAN's best know deprogrammer, Rick Ross, who once was convicted for alleged involvement in a jewel thievery scam, has boasted of more than 200 "deprogrammings."  Cynthia Kisser has praised him as being "among the half dozen best deprogrammers in the country."  In the summer of 1993 Rick Ross was indicted in Washington state for unlawful imprisonment.  However, a jury acquitted him in January, 1994 because he testified he had been hired only to deprogram the victim, not to kidnap him.  The defense worked the "dangerous cult" angle and called the victim's church, which has 3,600 member churches across nation, a "cult."11/
      In the summer of 1992 Rick Ross "deprogrammed" former Davidian David Block in the California home of CAN national spokesperson Priscilla Coates.  Block had lived at Mount Carmel only three months.12/  Block later gave questionable and damaging evidence to BATF.
      Ross also appeared on the March 10, 1993 NBC-TV "Donahue" show with David Jewell and his daughter Kiri.  Jewell was influenced by amateur cult buster Marc Breault, who first contacted him about Koresh's allegedly evil intentions towards Kiri.  They stayed in touch by phone and E-mail. Jewell also seemed devoted to dismantling the Branch Davidian religious group.13/
      Ross provided negative information to the Waco Tribune-Herald for its sensationalized February, 1993 "The Sinful Messiah" series on the Branch Davidians.  The paper quotes Ross declaring, "The group is without a doubt, without any doubt whatsoever, a highly destructive, manipulative cult. . .I would liken the group to Jim Jones."  The authors write, "Ross said he believes Howell [Koresh] is prone to violence. . .Speaking out and exposing Howell might bring in the authorities or in some way help those `being held in that compound through a kind of psychological, emotional slavery and servitude.'"14/
      Rick Ross contends he was in close contact with BATF before the raid and with the FBI during the siege.  Ross bragged on the "Up to the Minute" public television program that he "consulted with ATF agents on the Waco sect and told them about the guns in the compound."  On April 19th he told the NBC-TV "Today" show, "I was a consultant offering ideas, input that was filtered by their team and used when they felt it was appropriate."15/
      Nancy Ammerman, a Visiting Scholar at Princeton University's Center for the Study of American Religion, was one of the "outside experts" assigned by the Justice Department to evaluate BATF's and FBI's actions in Waco.  After seeing additional BATF and FBI materials, Ammerman wrote:  "The interview transcripts document that Mr. Rick Ross was, in fact, closely involved with both the ATF and the FBI. . .He clearly had the most extensive access to both agencies of any person on the `cult expert' list, and he was apparently listened to more attentively."16/

BATF IGNORED DAVIDIANS' LEGAL GUN BUSINESS

      Davidians had a profitable legal gun business.  Davidian Paul Fatta was a regular at Texas gun shows, selling everything from camouflage clothing to military-type ready-to-eat meals, gun grips, and weapons.  The Davidians also sewed "David Koresh" brand custom-made magazine vests for sportsmen, shooters, and lawmen and sold them at gun shows.  Among the products they marketed was souvenir plaques made of inert and legal hand grenade casings mounted on wood.  Even Marc Breault mentions that of the Davidian businesses, the "most important of all" was trade in weapons.17/
      The widespread rumor that David Koresh, Paul Fatta or other Davidians had a gun dealers license is not accurate.  Davidians were working with gun dealer Henry McMahon who did have one.  His Class III dealers license allowed him to legally own, sell, and buy, any type of weapon.  No Davidian held this license.  In late April, 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 restricted their manufacture in the future.  McMahon said that most of these guns were kept boxed and never fired, to enhance resale value.18/
       At trial, Paul Fatta's attorney Mike DeGeurin (brother of Dick DeGuerin who spells his name differently) told the jury: "Koresh and Fatta saw that a tremendous investment could be made by buying these guns (semi-automatic rifles).  They thought the guns may be outlawed in Washington and that they would triple or quadruple in price."19/  (President Bush's ban on the import of semi-automatics in 1989 already had increased their value.)  Between 1992 and 1994 the value of AK-47s had doubled from $150 to $300 and AR-15s from $500 to up to $1,400.20/
      BATF investigator Davy Aguilera's February 25, 1993 affidavit for search and arrest warrants mentions that Koresh attended gun shows with "Henry McMahon who is a federally licensed firearms dealer," and despite Aguilera's visit with McMahon, described below.  Nevertheless, Aguilera was unable to discover--or refused to acknowledge his knowledge--that Davidians had a legal weapons business.

KORESH INVITED BATF AGENTS TO INSPECT WEAPONS IN 1992

      On July 30, 1992 BATF investigators Davy Aguilera and Jim Skinner visited Henry McMahon to inquire about Koresh's gun purchases.  Because the agents were asking McMahon a lot of questions about David Koresh, he immediately called Koresh to inform him.
      According to a 1993 statement to writer James Pate by McMahon, "[Koresh] 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."21/
      Despite the emotional objections of prosecutors, at trial Judge Walter J. Smith allowed McMahon's business partner and woman friend Karen Kilpatrick, who witnessed this incident, to describe it.  When Kilpatrick waved her hands and shook her head, as had Aguilera, the entire courtroom burst into laughter, annoying and embarrassing the prosecutors.22/  The prejudiced judge agreed to the prosecutor's demand that Henry McMahon not be allowed to take the stand as a defense witness.  Instead jurors heard a brief statement stipulated (approved) by prosecutors and read by a defense attorney.23/
      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."24/  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."25/
      During the July 30th visit agents Aguilera and Skinner noticed that McMahon did not have complete paper work on all of Koresh's purchases.  Skinner returned on August 8th and collected documentation which Koresh had faxed to McMahon covering the purchase of lower receivers for AR-15 rifles, and other handguns and rifles.26/
      Davidian David Thibodeau asserts Koresh also tried to reassure BATF undercover agent Robert Rodriquez (who was working under the assumed name "Gonzales") about the Davidians' willingness to cooperate, telling him, "If there are any problems, I've invited the Sheriff's department in here a number of times.  If they have any questions they can knock on the door and work with me."27/

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 9-millimeter 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."
      All these guns, gun parts, powders, inert grenades, and other equipment were lawfully purchased and could be legally owned at that time.  None per se established probable cause that Koresh had violated or was about to violate federal laws.  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.
      At trial prosecutors could not call even one gun dealer who could provide evidence of illegal purchases of guns.  One asserted that Koresh, Fatta and McMahon's paying thousands of dollars in cash for guns was not unusual among gun buyers.28/
      Aguilera did not investigate the one dealer he believed might 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 merely suspected of "unlawful possession of machineguns, silencers, destructive devices, and machinegun conversion kits."  (The vendor was Shooters Equipment Company in Greenville, South Carolina whose owner BATF prosecuted unsuccessfully after the failed February raid.  The judge threw out the case because the parts the man was selling all came from hardware stores.29/)  In effect, Aguilera refused to check to see if Koresh had bought illegal items from this source and instead inferred that he had and used this as the basis for probable cause.
      Aguilera suspected the Davidians were breaking laws regarding machineguns--otherwise known as automatic weapons--which shoot two or more bullets per pull of the trigger, and laws regarding explosive devices.  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 the conversion kits can be used to turn semi-automatic guns into automatic machineguns.  According former BATF official turned BATF critic Robert Sanders, this area remains so unclear that, "There are no published rulings telling you what is and what isn't [a violation]."30/
      As of December, 1992 Aguilera's only evidence that the Davidians were committing any such crimes was that they had bought a number of legal weapons and legal gun parts which, with the help of a few parts they had not purchased, can be converted into machineguns.  However, BATF's suspicions remained pure conjecture.
      It also was legal at the time 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, pipe bombs or other destructive devices without proper registration. Aguilera asserted in his affidavit that BATF explosives expert Jerry A. Taylor had concluded that these materials could be used to manufacture such devices.
      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 Davidians were using the explosive materials for construction projects and for refilling ammunition, both legal uses.31/  It was because of this lack of probable cause based on Davidian purchases that in December BATF officials instructed Aguilera to gather information about Koresh's "intent" and to set up an undercover house and infiltrate Mount Carmel Center.

"PROBABLE CAUSE" WAS 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 David Koresh's intent had some credibility problems.  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 Davidians.32/  All other evidence on intent came from disaffected former Davidians influenced by "cult busters" Rick Ross and Marc Breault.

BATF Discounted Davidians' Personal Reasons for Owning Guns
      The Davidians originally began stockpiling weapons out of fear of George Roden who had driven them off the property with guns, had been in a firefight with them over the property, and who had vowed revenge.  Even after Roden murdered a man and was incarcerated in a mental institution, the Davidians worried he would escape and attack them.
      On February 28, 1993 Koresh told KRLD interviewers: "The weapons were bought originally because in the prophecies. . .2000 years ago Christ tried for three and a half years to present the gospel, right?  And the night of his crucifixion he told his servants, he said, before I sent you out without cloak, nor purse, nor sword.  So now I say unto you, if you do not have a sword go sell your cloak and buy one.  The Christian Church was not to stand idly by and be slaughtered."33/  Nevertheless, Koresh also told CNN interviewers, "I never planned to use these weapons.  The only problem is that people outside don't understand what we believe."  In fact, the Davidians' whole weapons stockpile equaled less than three guns per resident, compared to the Texas average of four per resident.34/

Cult Buster Rick Ross Provided Information
      Aguilera began contacting former members in November, 1992.  He obtained their names from the 1990 affidavits Breault left with the McLennan County Sheriff's Department and from Rick Ross.  Justice Department outside expert Nancy Ammerman, who had access to relevant 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."35/
      Evidence that Rick Ross had a financial motivation for inciting BATF against the Davidians is contained in Marc Breault's January 16, 1993 diary entry where he describes a conversation with 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."36/  It is unknown how many other families Ross contacted offering his expensive services "before it's too late."

Former Members' Allegations About Koresh's Intent
      Marc Breault, David Block, Poia Vaega and Jeannine, Robyn and Debbie Sue Bunds provided Aguilera with the following evidence of intent about illegal machineguns, contained in his affidavit: 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 himself; Jeannine and Debbie Sue Bunds said they saw a Davidian shooting a gun that must have been a machinegun because it shot so fast; Debbie Sue said she heard Koresh say he wished he owned a machinegun (some machineguns are legal); 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 admitted she did not know if 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) 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."37/

"PROBABLE CAUSE" BASED ON RELIGIOUS AND POLITICAL BELIEFS

       In his February 25th affidavit Aguilera includes second hand information--from social worker Joyce Sparks to special agent Carlos Torres to himself: "During [Sparks] 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."  It is possible Sparks misinterpreted Koresh's biblically prophetic statements, statements protected by the First Amendment.
      The affidavit also used other statements fully protected under the First Amendment freedom of speech provision 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."  This was actually the Gun Owners Foundation videotape "Breaking the Law in the Name of the Law: The BATF Story."  The video presents interviews with several individuals, including police officers, who charged BATF agents lied to get a search warrant or fabricated evidence to get a conviction.
      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."  BATF wanted to present these as "evidence of Howell's or other cult members' motive for wanting to shoot and kill ATF agents."  During the trial Judge Smith would not allow Robert Rodriguez to testify about Koresh's criticism of BATF,38/ but he did allow Kathryn Schroeder to testify that Koresh had shown members the anti-BATF video.39/
      The affidavit also asserted members watched "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."40/

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.  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 or that the judge would not allow jurors in the Davidian trial to see it.

Stale Information
      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."41/  Similarly, United States v. Ruff, 984, F.2d 635 [5th Cir., 1993] holds that evidence must be fresh.42/  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 had heard Koresh discuss a desire to make machineguns and grenades were also more than six months old.

Inaccurate Information
      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."  He called E-2 Kits, "E-Z kits" and did not mention that they are legal gun parts kits, not machinegun conversion kits.  He claimed that the AK-47 has an upper and lower receiver, when in fact it has a one-piece receiver.43/  And he claimed 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.44/  Aguilera alleged that Koresh was in violation of 26 U.S.C. section 5845(f) regarding destructive devices.  However, this code only defines destructive devices; section 5861 actually makes it illegal.45/
      None of the former 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 Davidians owned legal "hellfire" devices that allow more rapid fire but are not automatic.  (At trial FBI weapons expert James Cadigan claimed that investigators found no hellfire device among the burned ruins of Mount Carmel.46/  However, these small, spring-like devices easily would have been destroyed by fire.)
      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 150,000.47/  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.  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.48/
      Reporter James Pate asserts that BATF agent Davy Aguilera lied in his affidavit when he alleged 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.  McMahon asserts he informed Aguilera truthfully that Koresh was `a' preacher, not his preacher.  And McMahon asserted he wrote in parentheses after Howell's name on the BATF yellow forms "AKA David Koresh."  Pate asserts that Aguilera lied.49/

Misleading Information
      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.  Aguilera's February 25th affidavit contains a number of misrepresentations.  It 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.  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 for lack of evidence in June, 1992.50/
      The affidavit states that Davidian neighbor Robert L. Cervenka reported what sounded like machinegun fire in February, but does not mention that the Davidians discussed this allegation with a McLennan County Sheriff who assured them the "hellfire" 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 Davidians were excavating for a large underground tornado shelter at the time.
      The affidavit states that Immigration and Naturalization Service records showed 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 four weeks of observation from the undercover house, agents saw no such armed guards.51/
      The affidavit describes Marc Breault's statement: "While there he participated in physical training and firearm shooting exercises conducted by Howell.  He stood guard armed with a loaded weapon."  Aguilera and Bill Buford met Breault in person in January of 1993, but did not note an obvious fact about Breault: he is legally blind, having no vision in one eye, and very little in the other.  Therefore it is unlikely that he could have done much in the way of firearms shooting or armed guard duty.  Moreover, according to Waco Tribune-Herald reporters, "Breault, with his poor vision, was exempt from guard duty."52/  If Breault told the truth to reporters, we must wonder if he lied to BATF agents--or if they simply included these useful "facts" about Breault's activities despite what Breault told them.
      According to the Treasury report, BATF experts told Aguilera that Koresh's gunpowder and igniter cord "were themselves explosives requiring proper registration and storage--neither of which Koresh provided."53/  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 whether or not it was being legally 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, §§841 et.seq.; Title 26, §5845(f).54/

Indefensible Probable Cause Theory
      Aguilera's February 25th affidavit includes several serious allegations which are not under BATF's authority to investigate: child abuse, involuntary servitude, illegal drugs, and tax evasion.  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."55/  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."56/
      During the trial defense attorney Mike DeGeurin told attorneys that alleged illegal weapons found after the fire did not justify illegal search warrants.  "There's a lot of case law which says that no search can be justified by what it turns up."  However, attorneys realized and admitted near the end of trial that in their desperate attempts to try to get information about BATF's flawed planning introduced into evidence, they had overlooked raising the issue of whether the warrants were legal.57/

DID DAVIDIANS HAVE ILLEGAL WEAPONS?

      It must be remembered that if the Branch Davidians had collected several dozen legal machineguns--manufactured before 1986, on which they had paid the $200 tax--they would have been in the class of machinegun owners protected by law.  Similarly, civilians may possess properly registered grenades and silencers.  Of course, that protection does not stop BATF from violently invading gun owners' homes and confiscating their legal weapons.  Because federal law draws arbitrary distinctions between one class of legal gun owners and another class of "outlaw" owners, the federal government has been able to excuse its massacre of 82 Davidians by braying, "They had illegal weapons!"
      Except for prosecution witness Kathryn Schroeder, surviving Davidians deny they had or knew anything about illegal automatic weapons or machineguns.  During allocution before sentencing Kevin Whitecliff asserted, "I've never owned an automatic weapon.  I've never fired an automatic weapon.  I don't even know what an automatic weapon consists of."  Paul Fatta, who ran the Davidians weapons business, denies any knowledge that Davidians converted or manufactured illegal weapons.  Even prosecutors admitted there were places like the machine shop and gun rooms that were off limits to most Davidians.58/
      At trial prosecutors presented seemingly convincing physical evidence and witness testimony that after the fire federal agents found unregistered and therefore illegal machineguns, silencers and grenades in the ruins of Mount Carmel.  However, many suspect that BATF, with the help of the FBI, is up to its old tricks of fabricating illegal weapons.
      David Koresh told his attorney Dick DeGuerin in a tape recorded March 28, 1993 conversation, "Once we leave the premises here and they come in, I'm just so concerned they are going to twist everything up so much.  They're going to--nothing being illegal in here--they're going to put something illegal in here."59/  Many believe Koresh's fears were realized.

Davidians' Legal Weapons
      At trial prosecutors tried to overwhelm the jury with the numbers of weapons found in the ruins of Mount Carmel--294 in all, most of them legal.  They presented boxes of legal M-16, AK-47 and AR-15 semi-automatic rifles, two .50 caliber rifles, semi-automatic pistols, revolvers, grenade launchers, and more than 100 grenades, none of which were live.  The charred and smelly weapons were wrapped in heavy plastic.  Texas Ranger Ray L. Coffman said 133 weapons were found in the above ground concrete room; 111 of them were rifles stored in wooden racks.60/  However, FBI weapons expert James Cadigan estimated there were 1 million rounds of ammunition found throughout the whole site.  A defense attorney pointed out, and a Texas Ranger conceded, that one MP-5 sub-machinegun originally identified as a Davidian gun, actually had been left behind nearby the building by a BATF agent.61/
      The two .50 caliber rifles--which during the siege the government alleged had been converted to machineguns--both were found to be fully legal.  However, under cross-examination agent Cadigan revealed that agents found no .50 caliber cartridge cases with firing pin impressions,62/ suggesting no such bullets had been fired.

Allegedly Illegal Machineguns
      On the third day of trial prosecutors presented 48 allegedly illegal machineguns.  Prosecutors' evidence that these guns were illegal and challenges to that evidence from defense attorneys and others follows.
       Agent Cadigan alleged 48 semi-automatics had been modified for full automatic fire: 22 AR-15 rifles, 20 AK-47 rifles, 2 Heckler & Koch SP-89 pistols and two MAC-11 pistols.  He also presented an M-60 U.S. Army light machinegun barrel which, as a part, is not illegal.63/  As previously noted, attorney Stephen Halbrook claims it is AR-15s with which BATF often tampers to render them illegal automatics.
       BATF and FBI agents had both the motive, justifying their actions, and the opportunity to tamper with some, if not all, of the weapons.  Agent Cadigan revealed the weapons were forwarded to the FBI laboratories despite the fact that Texas Rangers were in charge of the investigation and the Texas Department of Public Safety's laboratory was fully qualified to analyze the weapons.  Once Texas Rangers handed the weapons over the FBI after the fire, BATF and FBI agents had exclusive access to them.64/
      Prosecutors would not allow a defense attorney's paid weapons expert to take off the plastic wrapping around the charred guns when he inspected them.  This made it more difficult to ascertain whether such alterations had been made, or if they had been made before or after the fire.65/  (However, while the weapons expert, Ken Carter, was originally named as a possible defense witness, he was not called to the stand.66/)  The weapons will remain in storage and, assumedly, they will not be destroyed until after appeals are completed.67/
      Attorneys forced agent Cadigan to concede that Olympic arms, which sold AR-15s to the Davidians, takes extra measures to prevent conversion of their weapons to automatic and that it is difficult to convert them.68/  (According to James Pate, gun owners rarely convert SP-89 pistols, like the two purchased by Paul Fatta, to automatic weapons and their conversion suggests BATF tampering.69/)  They also elicited Cadigan's admission that the FBI had no evidence that automatic weapons were fired on February 28, 1993.70/
      Agent Cadigan claimed that only three of the Davidian automatic weapons still fired and showed a video of that firing.  Two were automatic lower receivers found in the fire, with weapons parts supplied by the FBI to replace damaged parts.  The other gun was an allegedly fully automatic AK-47 which Texas Rangers stated they found in Michael Schroeder's white van after it had been towed to FBI headquarters at Texas State Technical College after the fire.71/
      It is difficult to believe that Schroeder, who was not at Mount Carmel on February 28th, would leave a fully automatic weapon in his unlocked van parked outside a building filled with over two dozen children, including his own.  The van evidently was unlocked because BATF agent Barbara Maxwell testified that on February 28, 1993 she and another female agent sought refuge from the firing inside the van.  She did not mention having to break into the van.72/  It is possibile that BATF or FBI agents planted that weapon.
       Agent Cadigan testified that Davidians had a milling machine and "barrel removal tools" that could have been used to produce illegal weapons parts.  And he charged that a book distributor's records indicated deceased Davidian Jeff Little had bought books and a video tape that showed how to convert legal AR-15s to illegal M-16s--and declared that that was the method they had used.73/  However, these machines can be used for other purposes than weapons manufacture and legal purchase of such books and videos is not definitive evidence of illegal activity.
      The government's star witness Kathryn Schroeder testified that she knew David Koresh and his closest followers were illegally converting guns because during Bible studies "he made insinuations very secretively and said, `I've got a gun that goes rat-tat-tat that I'm going to make go ratatatatat.'"  At the end of Bible studies Koresh would say, 'I want my S.S. guys to stick behind.  We've got work to do.'"  Schroeder said, "We knew they were working on guns."  Unfortunately, defense attorneys did not clarify whether Schroeder thought illegal guns were being produced before or after the February 28th raid.74/
      Schroeder identified the "S.S." guys as Scott Sonobe, Peter Hipsman, John McBean, Neal Vaega and Jeff Little.  She named none of the Davidian defendants at trial as "S.S. guys."  Desperate prosecutor Bill Johnston, who could not prove that defendants were in any way involved in the alleged weapons conversion, tried to implicate them by stating: "How do you suppose this grinding sounded in their home?  How do you suppose this factory sound went over in their home?  Certainly, all could hear it.  Oh, that's okay, that's just Fatta and 'Vern" making some machineguns.  Or they--did they just not care?"75/
      What prosecutors did not respond to was Schroeder's allegation that a surviving Davidian had been involved in weapons conversion.  She mentioned, "occasionally, I think he even brought 'Don' Bunds in."76/  As we have seen, Davy Aguilera's February 25, 1993 affidavit includes former Davidian David Block's allegation that Donald Bunds operated machinery capable of fabricating firearm parts and that he had observed Bunds designing a machinegun on a computer.  Bunds was arrested and charged with weapons violations as he approached Mount Carmel shortly after the raid and held in "protective custody" by BATF agents for several weeks.  He provided information to them.77/
      Davy Aguilera's April 13, 1993 affidavit asserted that within the last "45 days" an unidentified individual--obviously Bunds--had observed the manufacture of silencers and grenades, had seen "100" automatic machineguns, and had "observed that Howell was attempting to construct radio-controlled aircraft which can be used to carry explosives."  However, although Bunds was listed as a prosecution witness, prosecutors never called him to testify.  That Bunds was not called suggests Davidians are honestly claiming they did not produce illegal weapons.
      Schroeder testified it was not until after the raid that Neal Vaega showed her for the first time the difference between automatic and semi-automatic weapons and the process by which semi-automatics could be converted to automatics by cutting out the "safety switch."  She testified that the next day that she found a fully automatic AR-15 in the gun room.  She also claimed that at one point she inventoried such weapons and found more semi-automatics than automatics; she did not mention a specific number.  She also claimed she carried an automatic during the standoff.78/  However, at trial agent Cadigan conceded that someone who knew little about guns would have a difficult time distinguishing being an automatic and semi-automatic weapon.79/
      Defense attorneys challenged Schroeder's motives for claiming the guns were automatic, given her limited expertise.  At trial, while the jury was outside the courtroom, she confessed that she had pled guilty because the government told her a BATF agent would testify that he or she saw gun shots coming from the window of Schroeder's room.  Prosecutors also had letters from Davidian Victorine Hollingsworth in which she alleged Schroeder carried a gun February 28th.  However, once Schroeder agreed to testify, the BATF agent and Hollingsworth suddenly decided they were too unsure of the facts to testify against Schroeder.  She conceded she knew that if prosecutors were not pleased with her testimony they still could choose to prosecute her and, since she had not been granted immunity, use everything she said against her.  And she knew evidence against her could lead to life in prison if she were convicted of conspiracy to murder federal agents.
      Defense attorneys also forced Schroeder to confess that she had made statements to Texas Rangers about, among other things: what she was doing when the gunfire began, whether she had seen Koresh with a weapon on February 28th, whether she heard dogs shot as the gunfire commenced, whether she was allowed to have a gun.  Her answers differed from what she told prosecutors.  She admitted to lying to Texas Rangers, but attorneys inferred she also might be lying in her current testimony.80/
      Defense attorneys claimed Schroeder's goal was to be with her four children and questioned her about her alleged statement to a cellmate, "I'm going to tell them whatever they want to hear.  I just want to be with my children.  I've got to get out of prison!"  She did not remember making the statement.  Defense attorneys made Schroeder confess she stood to make tens of thousands of dollars off a movie deal she had signed.81/
      Davidian defendant Graeme Craddock, who also had little experience with guns, told a grand jury, without consulting an attorney, that he assumed some of the guns were fully automatic.  "I think a lot of us assumed that a lot of these arms that we had were full-auto and had that capability, or at least at some stage, might have been converted to full-auto.  We were told--the safety switch, there was three positions you could move it, backward to put it on safety, upper, fire, and forward.  We were told never under any circumstances we were to push the safety forward."  However, defense attorneys, noting that many semi-automatics have three switches, emphasized that the fact the guns were automatic was pure speculation on Craddock's part.82/
      Because nine of the eleven Davidian defendants were not charged specifically with illegal weapons conversion, defense attorneys may not have challenged the authenticity of the allegedly illegal weapons with sufficient vigor.  Some attorneys accepted the government's assertions the weapons were illegal and felt it would be more productive to argue that their clients knew nothing about the weapons or that they did not fire them.
      Many wonder why Davidians would spend tens of thousands of dollars on semi-automatic weapons, illegally convert them, diminishing their value, not use them when they were attacked by federal agents, and not even destroy the evidence just days before they intended to exit Mount Carmel.  While it is conceivable that a few Davidian gun enthusiasts did in fact break the capricious machinegun laws, it seems improbable that they converted 48 expensive legal semi-automatics to illegal automatics.
      Attorney DeGeurin told reporters, "They can't even show that any of these guns have even been fired.  The guns by themselves don't mean anything."83/  Unfortunately, the attorneys were wrong.  When it came to sentencing, the presence of these dozens of allegedly illegal guns proved crucial.

Allegedly Illegal Silencers and Live Grenades
      Two Texas Rangers testified that in the machine shop they found 22 pieces of cut tubing as well as steel wool or wire mesh, all "stock materials" used for the manufacture of sound suppressors or silencers which muffle the sound of a gun shot.  These are illegal for civilians to own without proper registration.84/ Unfortunately, defense attorneys did not explore the possibly innocent uses of such materials found in a machine shop.
      There is evidence that after the February 28th raid the "weapons experts" among the Davidians did bring out live grenades.  Jaime Castillo told a Texas Ranger, Graeme Craddock testified to a grand jury, and Kathryn Schroeder testified in court that immediately after the February 28th raid they saw a half-dozen or more pineapple-shaped grenades on a counter in the kitchen--something they had never seen at Mount Carmel before.85/  However, in his grand jury testimony Craddock also said of the grenades distributed February 28th: "I don't think these grenades were ever tested, we didn't know if they would work or not.  They were taken back from us a couple of days later because they were concerned that these grenades would probably be rather dangerous, that they would go off accidently. . .Some of the detonators would unscrew a little bit.  One of the pins came out accidently."86/
      All four of the allegedly live grenades identified by Texas Rangers and federal agents were found under suspicious circumstances.  The grenade found by Texas Ranger Ray Cano in the cinder block building next to the water tower where Craddock found safety from the fire was not found until six days after the fire--days after Craddock told a Texas Ranger and a grand jury about the grenade and after at least one FBI agent and possibly other federal agents entered the building.  Craddock's fingerprints were not found on the grenade.87/
      Ranger Ray Coffman testified he found a live grenade inside the burned out concrete room after the fire.88/  Why a live grenade would not have exploded in temperatures of over 2000 degrees was not explained.
      An FBI agent and two Texas Rangers claimed they found two live grenades in clothing Davidian fire survivors dropped near the boat where they gathered after escaping the flames.  FBI agent James Atherton said on April 19th he found the grenade in an assault vest which Texas Ranger Marshall Brown described as "a Vietnamese style assault vest," with a small pouch containing the grenade.  Texas Ranger George Turner said he found another grenade in the same area the next day in the pocket of a blue jacket.89/
      To end, there certainly is evidence that several deceased and one (unprosecuted) surviving Davidian may have been involved in some conversion of legal weapons to without proper registration.  However, there is no evidence that Davidian survivors were involved in doing so or that they knew definitively whether their guns and grenade hulls were legal or illegal.  And there is ample evidence that "motivated" federal agents could have taken advantage of "opportunity" and tampered with legal Davidian weapons.

FOOTNOTES

1.      Treasury Department report, p. 19.
2.      Ibid. p. 37.
3.      Federal Search Warrant Case Number W93-15M: issued on the probable cause to believe that unregistered machineguns and destructive devices concealed in violation of 18 and 26 USC.; Federal arrest warrant for Vernon Wayne Howell Case Number W93-17m issued in the belief he was in unlawful possession of an unregistered destructive device in violation of 26 USC.  From June 9, 1993, House Appropriations subcommittee hearing, p. 93.
4.      Michael Isikoff, "Treasury Balked at First at ATF's Raid on Cult," Washington Post, May 1, 1993.  Assistant Secretary for Law Enforcement, Phillip K. Noble made the comment.
5.      James L. Pate, "We Have Truth on Our Side," Soldier of Fortune, July, 1994, p. 47.
6.      Darlene McCormick, "Sheriff says he did not curb probe," Waco Tribune-Herald, October 10, 1993.
7.      June 9, 1993 House Appropriations subcommittee hearing, pgs. 77, 130, 137-138.
8.      Associated Press wire story, April 23, 1993, 10:25 EDT; Ross & Green report, "What is the Cult Awareness Network and What Role Did It Play in Waco?" 1993.  ("Ross" is no relation to Rick Ross.)
9.      Keith Epstein, "Maniac or Messiah?" Cleveland Plain Dealer, January 23, 1994.
10.      Dr. Gordon Melton presentation at American Academy of Religion panel on the Branch Davidians, Washington, D.C., November 22, 1993; December, 1993 letter to the United States Senate from Charles Russell of The Family.
11.      Ross & Green, p. 12; "Deprogrammer walks," Royal Teton Ranch News, February, 1994, p. 7.
12.      Ross & Green, p. 12.
13.      Marc Breault and Martin King, pgs. 254-56.
14.      Darlene McCormick and Mark England, "Experts: Branch Davidians dangerous, destructive cult," Waco Tribune-Herald, March 1, 1993, 7A.
15.      Ross & Green, pgs. 12.
16.      Nancy Ammerman, September 10, 1993 addendum to her report to Justice Department.
17.      Jim McGee and William Clairborne, "The Transformation of the Waco 'Messiah'," Washington Post, May 9, 1993, A19; Marc Breault and Martin King, p. 223; Clifford L. Linedecker, p. 10; Ken Fawcett, Blind Justice, (Dallas: Electropress), 1994.
18.      Paul H. Blackman, Ph.D., report of Institute for Legislative Action of the National Rifle Association, "Affidavit to Kill," p. 21.
19.      Trial transcript, p. 525.
20.      Mark Smith, "Firearms dealer says cultists paid with briefcase full of cash," Houston Chronicle, February 1, 1994.
21.      James L. Pate, November, 1993, pgs. 36-41, 71-72.
22.      Ken Fawcett, p. 26; trial transcript, p. 4904.
23.      Trial transcript, pgs. 6841-43.
24.      Marc Smith, "Agent allegedly refused Koresh's offer," Houston Chronicle, September 11, 1993.
25.      Associated Press, "Gun Dealer Alerted Koresh to ATF Probe, Lawyer Says," Houston Post, September 11, 1993.
26.      Livingstone Fagan paper, August, 1994, p. 12; Treasury Department report, Appedix D, p. 7; trial transcript, p. 4889.
27.      David Thibodeau interview, CBS "This Morning America," June 10, 1993.
28.      "Gun dealers tell court of sales to Waco cultist," Washington Times, February 1, 1994.
29.      Lisa Buie, "Judge throws out charges against gun supply dealer," Independent Mail, April 2, 1994; "Anna Simon, "Evidence against Oconee gun dealer tossed out," The News-Greenville, SC, April 2, 1994.
30.      Daniel Wattenberg, "Gunning for Koresh," American Spectator, August, 1993, p. 33.
31.      Paul H. Blackman report, p. 51.
32.      Ibid. p. 23.
33.      Gospel of Luke 22:33-37.
34.      Daniel Wattenberg, p.32.
35.      Nancy Ammerman report to Justice Department, 1993, Addendum.
36.      Marc Breault and Martin King, p. 317.
37.      Treasury Department report, pgs. 143-144.
38.      Trial transcript, p. 3399.
39.      Ibid. p. 4518.
40.      Daniel Wattenberg, p. 36.
41.      Ibid. p. 33.
42.      Paul H. Blackman report, p. 10.
43.      Ibid. pgs. 12-13.
44.      Ibid. p. 17.
45.      David B. Kopel and Paul H. Blackman paper, "The God Who Answers by Fire: The Waco Disaster and the Necessity of Federal Criminal Justice Reform," p. 15.
46.      Trial transcript, p. 1254.
47.      Larry Pratt report for Gun Owners of America, "Could A Search Warrant Be Your Death Warrant?" p. 2.
48.      Treasury Department report, pgs. 125-126.
49.      James L. Pate, "Government's Waco Whitewash," Soldier of Fortune, January, 1994. p. 69.
50.      Treasury Department report, Appendix D, p. 4.
51.      Ibid. p. 53.
52.      Mark England and Darlene McCormick, March 1, 1993, A10.
53.      Treasury Department report, p. 124.
54.      Paul H. Blackman report, p. 6.
55.      Treasury Department report, p. 27.
56.      Paul H. Blackman report, p. 21.
57.      "Cult Had Illegal Arms, Expert Says," New York Times, January 15, 1994; trial transcript pgs. 1274, 6958-60.
58.      June 16, 1994 trial transcript, p. 146; Paul Fatta, private communications, 1994 and 1995; trial transcript, pgs. 535, 7064.
59.      "Koresh defends actions in tape of interview," Dallas Morning News, May 28, 1993, 36A.
60.      Trial transcript, pgs. 825-37, 872-875, 905.
61.      Lee Hancock, "FBI video shows capability of Branch Davidian firepower," Dallas Morning News, January 15, 1994, 26A; trial transcript, pgs. 956, 1194, 1215.
62.      Trial transcript, p. 1215.
63.      Ibid. pgs. 1170, 1179-82.
64.      Ibid. pgs. 1244-47.
65.      James L. Pate, private communication, June, 1994.
66.      January 10, 1994 trial Transcript, p. 30.
67.      Teresa Talerico, "Cult trial evidence begins trek to Waco," Waco Tribune-Herald, March 1, 1994.
68.      Trial transcript, pgs. 1177, 1221-22.
69.      James L. Pate, private communication, June, 1994.
70.      Trial transcript, p. 1223.
71.      Ibid. pgs. 1092-5, 1174, 1192, 1216, 1223)
72.      Ibid. pgs. 2266-67.
73.      Ibid. pgs. 1185, 1190, 1197, 6122-23, 7338.
74.      "Death and Domesticity Mix at Trial of 11 Cult Members," New York Times, February 6, 1994; trial transcript, p. 4474, 6950-52.
75.      Trial transcript, p. 4474, 7064-65
76.      Ibid. p. 4474.
77.      Don Terry, "Cult Frees Another Child, Raising Hopes in Standoff," New York Times, March 5, 1993; Clive Doyle, private communication, May, 1995; Treasury Department report, p. 110.
78.      "Koresh Follower Pleads Guilty to Resisting Officer," New York Times, September 12, 1993; trial transcript, pgs. 4471-73, 4501-7.
79.      Trial transcript, p. 1220.
80.      Ibid. pgs. 4425-30, 4588, 4684-87.
81.      Ibid. pgs. 4587-88.
82.      Ibid. pgs. 6358, 6395-96.
83.      New York Times, January 15, 1994.
84.      Trial transcript, pgs. 1004-06, 1038, 1186-22.
85.      Ibid. pgs. 3057, 4469-70, 6396.
86.      Ibid. p. 6396.
87.      Trial transcript, pgs. 5466-68, 6057, 6069, 6074, 6075.
88.      Ibid. p. 915.
89.      Ibid. pgs. 5352, 5354, 5363-64, 5683-84.