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TESTIMONY OF HERB BYERLY, SPECIAL AGENT, BUREAU OF Mr. BYERLY. Chairman Specter and distinguished subcommittee members, I am pleased to provide the following brief background information on the arrest of Mr. Weaver for Federal firearms violations and the events leading to it. In July 1986, an ATF confidential informant first told me about Randy Weaver at the 1986 World Aryan Congress, Members of the Aryan Nations, especially its chiefs of security, have had a long history of criminal activity. The Aryan Nations first came to ATF's attention in the early 1980s when it began recruiting prison convicts to join its ranks. In 1983 and 1984, an Aryan Nations splinter group, the Order, was formed by a core of Aryan Nations' members. The Order committed violent crimes including in the murder of radio talk show host Allen Berg, the bombing of a synagogue, counterfeiting, and armed bank and armored car robberies, RICO and firearms violations. The massive investigation which was conducted by the FBI, with some assistance provided by the Secret Service, ATF, and State and local agencies, led to the conviction of' over 25 members of the Order, including the Aryan Nations' chief of security in 1985. Some sentences exceeded over 100 years imprisonment. In 1985, the then Aryan Nations' chief of security contracted with an undercover FBI agent to murder one of its informants who provided information which led to the conviction of members of the Order. He was convicted and sentenced to 12 years imprisonment. In 1986, another splinter group emerged from the Aryan Nations. This group called themselves Order II. This group was suspected of bombing a Catholic parish, an auto shop, and a trucking company in At the 198b Aryan Congress, confidential informant Fadeley became well acquainted with an individual who was a friend of Mr. Weaver's. This individual introduced confidential informant Fadeley to Mr. Weaver, but, more importantly, Weaver's friend introduced Fadeley to other Congress attendees, including one person that ATF knew who had been convicted of bombing ten school buses in From July 1986 through January 1987, Mr. Fadeley's conversations with Weaver's friend were electronically recorded. At that time, Weaver's friend was an ATF suspect concerning a Federal explosives violation. During these conversations, the ATF suspect made an illegal weapon sale to Mr. Fadeley and laid out plans to kidnap the children of wealthy celebrities attending the Though this ATF suspect had brought up Weaver’s name on several previous occasions, Randy Weaver did not really come to the attention of ATF until a January 20, 1987 meeting between this suspect and confidential informant Fadeley. Randall Weaver attended this meeting also. It was during this meeting that ATF first became aware of Randall Weaver's possible involvement and propensity to commit criminal acts Confidential informant Fadeley did not expect Mr. Weaver to show up at the January 20 meeting. The ATF suspect had invited Mr. Weaver in order to get Weaver's opinion of the confidential informant Fadeley and to check him out. During the early part of this meeting, with Mr. Weaver present, the ATF suspect held a gun to Fadeley's head and scanned his body with an electric stud finder. Fortunately, the electronic surveillance recorder that Fadeley was wearing was undetected. Confidential informant Fadeley next spoke to Mr. Weaver 6 months later when they met at the July 1987 World Aryan Congress. Confidential informant Fadeley was sent to this congress in order to meet and become acquainted with an individual, other than Mr. Weaver, who was suspected of Federal firearms violations. After this brief meeting, the confidential informant did not meet or speak to Mr. Weaver again until 2 years later, in July 1989, at the World Aryan Congress. Mr. Fadeley was sent to the July 1989 World Aryan Congress for the purpose of meeting and becoming acquainted with an individual, other than Randall Weaver, from On August 30, 1989, confidential informant Fadeley went to Weaver's house in On October 11, 1989, confidential informant Fadeley met with Mr. Weaver in On October 13, 1989, confidential informant Fadeley made a recorded telephone call to Mr. Weaver in order to document that Mr. Weaver did indeed want to sell sawed-off shotguns. During this conversation, they talked using code words, with Weaver saying he could supply two "chain saws," a single bar and a double bar. This terminology was used to discuss firearms. On October 24, 1989, confidential informant Fadeley again met Mr. Weaver. This conversation was also recorded. Mr. Weaver said he had a pump shotgun and a single-shot shotgun, both of which he sawed off himself. Mr. Weaver said he wanted $300 for the pump and $150 for the single-shot. Since confidential informant Fadeley had never offered any specific amount for the firearms, these high prices for these firearms surprised Mr. Fadeley. These prices also surprised me since I had given Mr. Fadeley only $300 to purchase both firearms. Mr. Fadeley told Mr. Weaver that it was a deal, and Mr. Weaver agreed to collect the remaining $150 on the next transaction. Mr. Weaver asked where the sawed-off shotguns would be going. Mr. Fadeley said they would go out of the area. Mr. Weaver is recorded as saying that he hoped they would go to street gangs. On November 30, 1989, confidential informant Fadeley met Mr. Weaver in In June 1990, ATF Special Agent Steve Gunderson and I talked with Mr. Weaver in asked him to contact me. Mr. Weaver did not contact me as requested. In December 1990, a Federal grand jury returned an indictment charging Weaver with making and possessing an unregistered fire-arm. On January 17, 1991, ATF agents and the This is, in a nutshell, what led up to or precipitated ATF's connection with Mr. Weaver. I would be pleased to answer any questions at this time. Senator SPECTER. Thank you, Mr. Byerly. Mr. Byerly, the standards, at least in part, as to the Bureau of Alcohol, Tobacco and Firearms enforcement program set forth in Order 3310(4)(b), state that the enforcement policy of the agency is to "emphasize those violations that have the greatest potential to impact on crime and to disrupt illegal firearms activities." The order goes on to list examples of such violations that should be emphasized, including those involving "armed drug traffickers" and "criminal firearms traffickers who are significant firearms sources to the criminal element." Are those the essential standards setting the priorities for your Bureau? Mr. BYERLY. Yes. Senator SPECTER. How does Mr. Weaver fit into that category concerning the greatest potential to impact on crime and to disrupt illegal firearms activity. Was there any indication that Mr. Weaver was involved as an armed drug trafficker? Mr. BYERLY. No, Mr. Chairman. Senator SPECTER. Would you say that his status qualified under the category of "criminal firearms traffickers who are significant firearms sources to the criminal element"? Mr. BYERLY. That is definitely a possibility. Senator SPECTER. Why would you say that that is definitely a possibility? Mr. BYERLY. Because Mr. Weaver had stated that he could supply up to five sawed-off shotguns per week, and he stated on the recorded statement that he hoped these weapons would be going to street gangs. Senator SPECTER. Would you say that based upon what the Bureau knew of Mr. Weaver that he fit into the category of "violations that have the greatest potential to impact on crime and to disrupt illegal firearms activities"? Mr. BYERLY. I would think the possibility of that would exist if, in fact, these sawed-off shotguns made it to the hands of street gangs. Senator SPECTER Well, when you have answered both questions so far, your answer was in the category of a possibility. Is the standard which the Bureau applies in directing resources to the apprehension of an individual, a possibility, as you characterize it? Mr. BYERLY. Well, they would be to intercept firearms going into the hands of violent criminals, which street gangs would be, sir. Senator SPENCER. Well, had there been any amplification as to the nature of street gangs so that you would have some concrete handle on what Mr. Weaver had in mind? Mr. BYERLY. Yes, sir. At the July 1989 Aryan Congress, Mr. Weaver had an extensive conversation with a leader of a group of skinheads, which are a violent faction involved in the neo-Nazi movement and also in the white supremacy movement. Senator SPECTER. Is that meeting described in the course of your prepared statement? Mr. BYERLY. No, it is not. Senator SPECTER. Why not? Mr. BYERLIY. I cannot answer that. Senator SPECTER. Are there any other major factors or contacts with Mr. Weaver which led the Bureau to conclude that he fit within the guidelines of being a serious threat on firearms? Have you omitted anything else, in other words, Mr. Byerly? Mr. BYERLY. I do not believe so. Sir. Mr. VITA. Mr. Chairman, I think I could add something to that in that you have to realize, sir, that the informant had presented the guise that he was a trafficker in arms and that he was acquiring and selling guns of all different types and varieties. So if Mr. Weaver's predisposition was to supply guns to an individual that was moving guns to the Criminal element, then he would be, in effect, effecting a major source of supply to the criminal element. Senator SPECTER. Well, Mr. Vita, was the real thrust here to go after Mr. Weaver because he supplied guns or because you wanted him to act as an informant? Mr. VITA. I believe at the time that the case was made or the purchases were made—originally Mr. Weaver was not the target of the investigation. The investigation was targeting individuals involved in firearms and explosives violations to include bombings that had been planned and were being undertaken, as well as some kidnappings that some of the group members were involved in. I think that Mr. Weaver saw an opportunity at this point to offer his involvement to the informant to become involved in his business and his transactions. Mr. Weaver was not originally the target of that investigation. Senator SPECTER. Well, you have said that he was not originally a target. But at some point he does become a target. My question to you, then, was not whether he was originally a target or whether the real thrust of the Bureau was to try to secure his services as an informant, contrasted with any large sale threat of being a gun supplier. Mr. VITA. Mr. Byerly will have to answer that one. He knows more about that part of the investigation than I, sir. Senator SPECTER. Well, Mr. Byerly, in your statement, you start off here on that point at page 5 saying that, "The purpose of' this meeting was to talk to Mr. Weaver about making a trip to In the short period of time that I have on round one, am I correct in inferring that you are really looking to Mr. Weaver more as an informant than a major supplier of guns? Mr. BYERLY. No, sir, that is not correct. Senator SPECTER. So the total substance of what you have in mind from the Bureau's point of view of his being a potential major source of gun supply is what you have testified to here today? Mr. BYERLY. Up to this point, yes, sir. Senator SPECTER. Well, let us take it beyond this point and give the subcommittee the totality of the probable cause you had for thinking Mr. Weaver was a source to be a major supplier of guns. Mr. BYERLY. OK. On October the 11th, when Senator SPECTER. Now, Mr. Byerly, is this beyond what is in your statement? Mr. BYERLY. Yes. In my statement, I did not go into all the details as to my total knowledge of this, Mr. Chairman. Senator SPECTER. Well, why not, Mr. Byerly? Mr. BYERLY. I tried to make my statement a concise summary of my total knowledge of this. Senator SPECTER. Well, let me come back to that in just a moment, but first let me ask you about your questioning him on facilitating a relationship with the individual of interest in Now, can you shed some light on the question as to why when Mr. Weaver says he does not want to be a snitch that he would then state that he wanted to go to work for the confidential informant and, in effect, be a snitch in that context? Mr. BYERLY. Well, by him telling the confidential informant that he wanted to go to work for him, at the time he did not know that the informant was providing me with information. He was going into the business with the confidential informant in dealing in illegal firearms. That was the purpose of those statements to the confidential informant. Senator SPECTER. Well, if Mr. Weaver was going to be a confidential informant at any stage, he would have had to have known that the information that he was going to obtain, as a confidential informant would be passed on to someone. Mr. BYERLY. That is correct. Senator SPECTER. So why would he volunteer to be a confidential informant against this man from Mr. BYERLY. Because he would be an unwitting informant. He would be an unwitting participant to introducing the confidential informant to the person in Senator SPECTER. How can you say Mr. Weaver is unwitting when he agrees to go to work for the confidential informant and to be the intermediary? How can you say he would be unwitting? It seems to me that he would be knowing what he was doing. As you describe it here, Mr. Weaver as a volunteer, "stated that he wanted to go to work for the confidential informant, who was posing as an illegal arms dealer." Mr. BYERLY. Maybe my statement is not that clear. When Mr. Weaver talked with the confidential informant Fadeley, his mind-set was that Mr. Fadeley was illegally dealing in firearms. That is what I mean that he wanted to go to work for Mr. Fadeley in supplying illegal weapons to Mr. Fadeley. Senator SPECTER. But it was not the supplying of weapon that you are referring to here. It was Mr. Weaver's statement that he wanted to go to work for the confidential informant in the context of working against the man from Mr. BYERLY. No, sir. My statement must not be clear on that. If I can— Senator SPECTER. Well, coming back to page 5, you have stated, "The purpose of this meeting was to talk to Mr. Weaver about making a trip to Now, isn't that pretty plain that that involves dealing against the explosives man from Mr. BYERLY. This is a concise overview of this meeting between confidential informant Fadeley and Mr. Weaver. The conversation went on for some period of time. But the purpose that I sent the confidential informant to meet with Mr. Weaver was to have Mr. Weaver unwittingly take the informant over to Senator SPECTER. Well, Mr. Byerly, you have used the word "unwittingly" again, but what was there about Mr. Weaver in taking this man to Mr. BYERLY. Because Mr. Weaver did not know at that time that Mr. Fadeley was a confidential informant. Senator SPECTER. Well, my yellow light is on and we will come back to that to amplify what you say as an abbreviated statement. But let me, before my time expires, give you a chance to enumerate all the situations where Mr. Weaver had given you some factual predicate to think that he could supply guns. You have made a number of statements in writing in the statement which you presented to us which you say is abbreviated. You talked about a second incident with a group of skinheads and then you started to talk about an event on October 11. Now, at this point, could you give the subcommittee all the factual bases that the Bureau relied upon to think that Mr. Weaver could be a significant supplier of guns. Mr. BYERLY. Yes, sir. Senator SPECTER. I believe it is 1989 but it is a good question. Mr. BYERLY. Yes, it is. Senator SPECTER. OK. Would you proceed? Now, you are going to give us all the facts you have on Mr. Weaver being a source for significant sales of guns, right? Mr. BYERLY. Yes. Senator SPECTER. Proceed. Mr. BYERLY. Thank you. On October 11, 1989, Mr. Weaver stated to the confidential informant that he wanted to go into business with him by supplying the confidential informant who had the persona of being a dealer of illegal weapons. Mr. Weaver stated to him that he wanted to go into business with him. They had a discussion on the type of firearms that were the best sellers for the confidential informant. The confidential informant stated an array of guns, including shotguns. On October 13, after the confidential informant had advised me of these conversations with Mr. Weaver, I requested authorization to electronically intercept a conversation between the informant and Mr. Weaver. On October 13, I had the confidential informant make a phone call to Mr. Weaver so that I could document what Mr. Weaver had said concerning the supplying of these weapons to Mr. Fadeley. During this conversation they set up a time that they would meet and Mr. Weaver stated that he would supply two of them. On October 24, 1989, during this meet Mr. Weaver supplied two firearms, two sawed-off shot guns to the confidential informant. On November the 30th, 1989, there was another meeting between the informant and Mr. Weaver. At that meeting, which was electronically recorded, Mr. Weaver said he had five shot guns with him at the time. He also provided the price of the guns; $150 for the single shots and $300 for the pump. During this meeting, there was allegations that the confidential informant was a snitch or a cop. There was allegations made by the confidential informant towards Mr. Weaver that how could the confidential informant trust him because he had run for sheriff? So there was a big argument. Mr. Weaver finally said that he was not going to transfer any of these fire-arms to confidential informant Fadeley. I have to step back to August or July of 1989 during the July 1989 Aryan Congress. During this congress, the confidential informant observed Mr. Weaver speaking with the leader of a group of skinheads. After this conversation, the confidential informant asked Mr. Weaver what this was about. Mr. Weaver said that he had invited the skinheads up to his house to provide them with training and leadership. So then when we had the meeting on November 30, 1989, and there was five weapons, five sawed-off shot guns which did not change hands, there was some other directions. And there was an argument between the confidential informant and Mr. Weaver and I advised the confidential informant to have no further contacts with Mr. Weaver. I changed the direction of the investigation and directed the confidential informant back to certain individuals within the Aryan Nations. I had received information concerning some individuals there concerning some explosive violations and I instructed him to go there. Mr. Weaver still had these five sawed-off shot guns to the best of my knowledge that were not transferred to the confidential informant. At the Aryan Nations' compound, the confidential informant met with an individual who was confronted and asked, "hey, are you not a friend of Randy Weaver?" The informant said that he was and this individual said, "well, his nephew was down over the weekend and he picked up eight applications for the up-coming skinhead conference which would be in April." Three days later, the confidential informant was at the Aryan Nations compound where he was confronted by several individuals, one of them being the chief of security of the Aryan Nations. He was advised that his license plate did not match with his VIN number on his vehicle. They asked him to leave which he did leave. They took down some information concerning the confidential informant and told him not to come back, which the confidential informant did not go back At that time, I knew that the confidential informant was burned. He could not be used in his Aryan Nation infiltration of various subjects again. I knew that Mr. Weaver had invited the skinheads to his residence to provide training and leadership to them. I knew that my informant was burned. I talked it over with my supervisor and with some of the other people in my office and I made the decision that I had nothing to lose, that I would go talk to Randy Weaver and see if he would provide assistance to me concerning certain individuals who were suspect of violation of Federal laws. Senator SPECTER. Senator Kohl? Senator KOHL. Thank you very much, Senator Specter. Just to follow-up on at Mr. Byerly. It is clear, is it not, that after all is said and done that the total number of illegal firearms that were transacted between Mr. Weaver and the ATF were two sawed-off shot guns? Mr. BYERLY. Yes, Senator. Senator KOHL. I mean that is the bottom line? Mr. BYERLY. Yes, Senator. Senator KOHL. Is it also true that you had no knowledge of him having sold illegal firearms to other people? Mr. BYERLY. That is correct. Senator KOHL. So then rationally speaking, how do we come to the conclusion that this man is so dangerous, in terms of his propensity or probability of becoming a major firearms dealer, that Mr. BYERLY. There were only two sawed-off shot guns which came into the hands of ATF through the confidential informant. Senator KOHL. Yes. Mr. BYERLY. But there was information coming from Mr. Weaver's mouth that he could supply up to five sawed-off shot guns per week. Senator KOHL. Then if that were true and you really wanted to have a case that you wanted to be certain of where you are coming from, which we expect from people in your position, why would you not have pursued it to the point of where, in fact, he was and had become a major firearms dealer, so we would not have to be talking about whether or not he, as you know, will deny that. He said I only sold two and the question of how did that happen? And he is right in terms of fact. He is not a major firearms dealer. You are suggesting that he could have become but he was not. And you were in control of that whole operation to have made it, in fact, the case. So, do you understand our concern about accepting that conclusion? Mr. BYERLY. Yes. Senator KOHL [continuing]. That you are putting forth with respect to Randy Weaver, dot, dot, dot, major firearms dealer. It is not true on the basis of fact, is it? Mr. BYERLY. There were only two firearms which were received by ATF, that is correct. Senator KOHL. I mean the rest is possibility, maybe, could have, did not happen, dispute over the price, but it did not happen. Mr. BYERLY. No, it did not happen, that is correct. Senator KOHL. All right. Now, with respect to the confidential informant, Mr. Fadeley, what was the nature of his financial arrangement with ATF? How did he get paid? Mr. BYERLY. Mr. Fadeley was paid for his ordinary investigative expenses which would include money for his gas, money for his meals. If there was lodging to be incurred, he would be reimbursed for his lodging. At the conclusion of an investigation, he would be eligible for a monetary award which I would recommend for him. Senator KOHL. Based on what? Mr. BYERLY. Based on the amount of effort involved in an investigation. If the investigation was a local investigation certainly the amount of money that I would recommend would not be as much as if he had to travel over to Senator KOHL. Whoa, whoa. Was he paid for time or was he paid for success? Mr. BYERLY. He was paid for his effort in contacting people, supplying information to me which I could corroborate. Any— Senator KOHL. So is it fair to say that the more successful he was at his work, the more he would get paid. However you define success, but the more successful he was in his work, the more you would think he was worth? Mr. BYERLY. That is correct. Senator KOHL. And part of that success, is it fair to say, would be his ability to conduct an illegal arms traffic with Randy Weaver, as well as others? Mr. BYERLY. Well, his success would be based upon the information that he provided to me, any purchases of illegal firearms— Senator KOHL. Right. Mr. BYERLY. That is correct. Senator KOHL. Right. Now, it is a fact, is it not also, that when all of this wound up in court, the court decided that Mr. Weaver basically had been entrapped. Mr. BYERLY. I do not think the court decided it. Senator KOHL. What did the court decide, as you recall? Mr. BYERLY. That he was acquitted of all the charges except two. Senator KOHL. Which were? Mr. BYERLY. Which were failure to appear and committing a crime while on release. Senator KOHL. That is right. I think it was pretty clear in the court that they were not satisfied with evidence, those two sawed-off shot guns in terms of what that meant. Mr. BYERLY. The jury was given an instruction on entrapment but the jury was not polled and the jury—there was no indication that I am aware of that the jury concluded that there was entrapment. Senator KOHL. I think it is fair to conclude from everything we know, Mr. Byerly. including our discussion today, that it would not be accurate to say that Mr. Weaver is or was a major supplier of arms. The most you want to tell us is that you feared that that could become the case. Mr. BYERLY. That is correct. Senator KOHL. But that there was no, in fact, evidence that he was a major supplier of arms not to you or anybody else. There is no evidence in terms of it being a fact. Mr. BYERLY. Well, I think major—when someone says that they can supply five weapons per week, I would call that quite significant. Also— Senator KOHL. You did not say, per week. Again, I want to—it is not even here in a week. You said, it says here on page seven, it says here, "Mr. Byerly, Mr. Weaver said the total would be $1,050. Mr. Weaver also asked Fadeley if he would be interested in double-barrel shotguns. During this encounter, Weaver suspected that Fadeley might be an informant. There was a dispute between them and no shotguns were sold by Mr. Weaver." In no place in your statement do you suggest that Mr. Weaver had said that he would be a weekly supplier of firearms. That is not in your statement categorically. You are saying that but it is not in your statement. Mr. BYERLY. That is correct, it is not. Senator KOHL. Well, let me go on. If Randy Weaver was as dangerous, as violent and as extreme a man as you seem to indicate, then why did not you just target him for arrest right off the bat? I mean why all of this time and so on? Why? Mr. BYERLY. Because the informant was still actively pursuing certain persons who we suspected of violating Federal firearm and explosive laws. I did not want to burn the confidential informant with an arrest of Mr. Weaver. Senator KOHL. But Mr. Weaver, what, he never did—he said, I am not going to be a snitch and—he never did serve as a confidential informant to you all. Mr. BYERLY. I submitted a criminal case report to the U.S. Attorney’s Office in May of 1990. That was prior to my contact with Mr. Weaver in June of 1990. The criminal case report had already been submitted to the U.S. Attorney's Office for prosecution of Mr. Weaver. Senator KOHL. Final question. Do you think now, looking back at it, Mr. Byerly, that you might have handled certain things differently? You might have handled the Weaver case differently? And we all look back at our experiences in life and then have second thoughts on what we would do from time to time. Any comments about how you might handle Mr. Weaver and that whole case today if you had a chance to look at it and do it over again? Mr. BYERLY. If I know what I know now about the whole thing? Senator KOHL. Yes. Mr. BYERLY. Well, I would certainly have—knowing the totality of the whole thing, yes. It is like taking your family on a Sunday drive and being involved in a car accident and your family is killed and you survive. If I knew that would I take my family on the Sunday outing? No. Senator KOHL. Well, that is chance. I mean that is chance that happens in life. I am not talking about that. I am talking about, you know, we look back on things we did and experiences we had and the way in which we handled situations where we had some control over it. Would we do it differently? I am referring to that, not some kind of a chance situation. Mr. BYERLY. If you are asking, Senator, if I would have done the investigation differently? Up to the time of arrest and the time I took him before the U.S. Magistrate for arraignment probably not, sir, no. Senator KOHL. OK. Mr. BYERLY. After the trial of Mr. Weaver I put in a request through my supervisors for an award of $5,000 to Mr. Fadeley. Senator KOHL. And that was based on your judgment that he had what, successfully done what? Mr. BYERLY. That he had contacted Mr. Weaver a number of different times. That he had provided the information. He had provided detailed notes of these contacts. He had worn a transmitter on his person to record these conversations. That he had provided all the assistance toward the prosecution of Mr. Weaver. Senator KOHL. All right. Now, I am finished. Mr. Vita, did you want to make a comment? Mr. VITA. Yes, Senator, if I may? In looking at this from a big-picture perspective, we have to realize that initially ATF was involved in its number one priority, that is the investigation of criminal bombings and that was the case that was originally started. It is one that, in order to maintain the identity that the informant had he had to do the things that he advocated that he was capable of doing. If Mr. Weaver would have offered to sell him those guns and he would not have purchased those guns, the informant would have been exposed as in somebody who could not come up with what he said he was doing. That was all part of what was involved in the overall investigation Mr. Weaver also presented a profile that was very consistent with major firearms traffickers. They indicate that they have an unlimited source of supply. They indicate that they have firearms that are available to us that are not maintained on Federal firearms' licensees records, which Mr. Weaver did. Now, although the case may not have come to that conclusion, Senator KOHL. That may be true, but it is not the way it is suggested in this statement. You are adding something which may be true, but we have a right to conclude or to expect that Mr. Byerly's statement is accurate and fairly conclusive in that respect. And Mr. Byerly's statement does not suggest that what you have just said is a fact. Thank you very much, Mr. Chairman. Senator SPECTER. Thank you, Senator Kohl. Senator Thompson. Senator THOMPSON. Thank you, Mr. Chairman. Let us pursue this a little bit further. I am not going to criticize the use of undercover agents or informants. I know that is part of the job and I know that deception is a part of their modus operandi. And I usually would not quibble over whether or not something is a serious violation or a not so serious violation. But you understand what we are dealing with here is the question as to whether or not this was a serious situation, in and of itself, as you try to portray or whether or not it was being used by a paid informant, based on what he knew you wanted, in order to achieve other ends? And that is a pretty serious question. I think you try to make out a better case than you got here. When you try to portray Weaver as a major supplier, it appears to me that the only source you Mr. VITA. In the monitored conversations that we had, yes, sir. Senator THOMPSON. In what? Mr. VITA. In the monitored conversations that Mr. Fadeley had Senator THOMPSON. Well, I look at those conversations and it raises a question. The main conversation, when he supposedly laid it all out, is: No. one, the fact that you have to take the word of your paid informant that he was approached by Mr. Weaver instead of the other way around; No. two, the detail in which the deal was structured and the amount of arms that could be supplied, all of that was not recorded. Then when you get to the recorded conversations, there is nothing in there that indicates that Mr. Weaver is some kind of a regular or massive or has any history as far as an arms dealer that I can see. What I do see is Mr. Weaver saying here, in this conversation, of October the 24, he says, "when I get my workshop set up I can do a better job." Then the informant says, "all right, now, you said for $150 you could do pretty much four or five a week, could you not?" And Weaver says, well, and then the agent picks back up again and they never get back to it. It is pretty apparent what you are talking about here is a fellow sitting out under a shade tree with a hack saw, and it just depends on how many he can saw, as to how many he can supply. Is that not the case? Mr. VITA. That could be the interpretation. Senator THOMPSON. Well, you tell me what your interpretation is. It is perfectly legal to own a shotgun, right? Mr. VITA. Yes, sir. Senator THOMPSON. And it only becomes illegal when you saw the barrel off and it is not registered, right? Mr. VITA. As long as you are not a prohibited person, yes, sir. Senator THOMPSON. All right. Senator LEAHY. As long as—I am sorry, I did not hear that. Mr. VITA. As long as you are not a. prohibited person. Senator THOMPSON. Not a prohibited person like a former conviction or something like that, right? Mr. VITA. That is correct, sir. Senator THOMPSON. All right. So you are not implying that he was importing some sawed-off shotguns and just being the middle man to the undercover agent, are you? Mr. VITA. No, sir. And at the time of that conversation we really did not know how involved he was and what exactly the scope of his activity was. That is what we were trying to work toward to make that determination~ Senator THOMPSON. All the information you had on that was what your undercover agent was telling you, right? Mr. VITA. Yes, sir. Senator THOMPSON. But, again, you are not implying and there is nothing in any of these transcribed papers that we have here that indicates that he was some kind of a middle man or that he was getting weapons from another source and giving them to the undercover agent. On the contrary, it all appears to be that they Now, is there anything to dispute what I just said in the record? Mr. VITA. The issue that when he told the informant that he could supply him additional weapons and indicated that he had a friend in the business somewhere as a licensee that could provide a supply that would not be traceable, at that point we did not know how far Mr. Weaver could go. Senator THOMPSON. Supply that could not be traceable? That is a bit of a new aspect, I believe, is it not? Mr. VITA. Well, when he said—that is consistent with the profile of a major trafficker. It is very important that the paper trail cannot be re-established to identify that person. Senator THOMPSON. You are begging the question. Your undercover agent knew what was consistent with a profile of a major trafficker, too, did he not, because he had been working for you? Mr. VITA. OK. I do not know what background he had and what knowledge he had in that area, sir. Senator THOMPSON. You do not know that much about the source for the information that you just related? Mr. VITA. I personally do not. Senator THOMPSON. Well, you just related the information about why you believe this man was a serious dealer. The source of that information was this undercover agent. Were you taking the word of somebody that you did not know? Mr. VITA. Sir, when I said, I, I meant me, personally. I was going by the record and the records that I have read is not only the transcripts of the tapes, but the 3270.2 investigative reports, the case reports and everything else that I have read about the case. Mr. Byerly knows the informant better and knows better his background. I do not know all those elements to his background as to his knowledge and training. Senator THOMPSON. All right. You can point out to me anything in any record other than the oral, unrecorded statements of your undercover agent, which were not taped. If you will point out any of the conversations that were taped or any of the trial testimony or anything that would indicate anything other than what I suggested, then I would be delighted to hear it. That gets back to the credibility of the undercover agent. And, again, I have no problem with that, in and of itself. I have prosecuted cases using them in times past, but you have to start out being kind of cautious. You have some inherent problems with undercover cases especially if you have an informant who even possibly might be setting somebody up who is so dangerous as this fellow who was associated with the Aryan Nations. And courts give instructions, even to juries, saying that undercover paid situation, should be laid out and viewed with caution. You are paying this man money and I do not want to quibble over it. I think Mr. Byerly was fairly candid about that. But surely you are not going to suggest that the pay is not affected in situations where you wait until the trial is over with and you see whether or not there is a conviction or not, you see whether or not the guy takes the stand, stands strong, stands up to Gerry Spence and the Mr. BYERLY. That is correct up to a point in that there are a lot of investigations that do not even go to court. Senator THOMPSON. I am not saying you are buying his testimony. I mean that does not have to be either one way or another. The fact of the matter is that you are caught in between. And that is perfectly legal. But you have got to deal with something like that with caution because if you do not have a tape on the guy, all you have got is his word. And he knows in his mind, regardless of what you tell him, that whether or not he goes through a month-long trial and gets a conviction in the end that he knows that whether or not that happens is irrelevant to his ultimate compensation. So you got that inherent situation going in. And then I look here at the trial testimony and apparently your undercover agent said that he indicated to Mr. Weaver, on one occasion, as to where to cut the barrel of the rifle. Do you recall that testimony? Mr. BYERLY. Yes, I do. Senator THOMPSON. Do you recall where Mr. Weaver, on one of the tapes, November 30 tape I believe, said to the undercover agent, said, you know, you approached me and offered me a deal. It is on the tape. And the undercover agent did not deny that. Mr. BYERLY. No, he did not, but he followed it right up and he said something to the effect, yeah, that scum-bag. So he did respond to it but he did not address that issue. Senator THOMPSON. He did not deny it, did he? Mr. BYERLY. No, he did not. Senator THOMPSON. Let me ask you this: when you went to Mr. Weaver and tried to get him to become an informant for you—and again, I do not criticize that in and of itself, as long as it is done according to the rules—you had been taping him for some time before that, right? Every time you had a contact with him through your undercover agent, your undercover agent had been wired, is that correct? Mr. BYERLY. That is correct. Senator THOMPSON. Why was not any law enforcement agent at the meeting where you tried to get him to come, or the informant wired? Why do we not have a transcript of that conversation? Mr. BYERLY. Because the—if we had recorded it, we were not doing that for evidentiary purposes to solicit from him either a yea or a nea for any evidentiary purposes. We were talking with him to advise him of the facts. I showed him a picture or a couple of pictures of the sawed-off shotguns. Told him that a case report had been forwarded to the U.S. Attorney's Office and provided him Senator THOMPSON. Did it ever occur to you that when you showed him that he may say something like, yeah, you got me, but I will never inform for you? I mean would that be out of the realm of possibility? Mr. BYERLY. Well, it is certainly— Senator THOMPSON. It sure would have been nice if you had had Mr. BYERLY. Well, I— Senator THOMPSON. You see the implication and you can consider it for the future, for whatever it is worth. When you are taping a fellow like that and you produce good tapes and then you have a conversation it looks like maybe you do not want us or anybody or the court to ultimately see what the conversation was with regard to the subsequent meeting. So take that for what it is worth. I want to ask you one final thing. I have got an exhibit here. It is signed and the name is marked out but it is signed, special agent in charge, addressed to the Mr. BYERLY. Possibly, sir. Senator THOMPSON. "Mr. Weaver is considered to be active in white supremacy activities and has been convicted of activities." Do you remember, did you write that? Mr. BYERLY. Yes. Senator THOMPSON. That was not correct, was it? Mr. BYERLY. No. Senator THOMPSON. That was incorrect? Mr. BYERLY. Correct. Senator THOMPSON. Now, this was the letter that you wrote to the U.S. Attorney's Office suggesting that he be prosecuted on Federal charges, right? Mr. BYERLY. That is correct. Senator THOMPSON. "He has been convicted of activities and has been involved in a number of Aryan Nations' activities. Mr. Weaver was a candidate for the Boundary County Sheriff’s Department but was defeated in the election process. Mr. Weaver stated he manufactured the violation weapons and, therefore, has displayed his disregard * * " Are you talking about the two sawed-off shotguns? Mr. BYERLY. Yes. Senator THOMPSON. By manufactured, you mean sawed the barrels of the shotguns? Mr. BYERLY. Yes, sir. Senator THOMPSON. All right. That letter was May 21, and that was shortly before you approached Mr. Weaver to cooperate with you. And then in the following December he was, in fact, indicted. Your letter also says, "There are no violations of State law concerning this alleged manufacture of selling sawed-off shotguns. It is recommended that Mr. Weaver be charged in U.S. District Court." Of course the U.S. Attorney's Office sometimes declines minor cases even though they are clear violations of law, do they not? Mr. BYERLY. Yes, they do. Senator THOMPSON. Do you think your telling the Mr. BYERLY. No, sir, I do not. That letter is a typographical error. I had been in telephone contact with the assistant Senator THOMPSON. Well, I do not know what you just said but it says here, "He has been convicted of activities." So I guess we can ask somebody else about that. That is all I have. Thank you. Senator SPECTER. Well, Mr. Byerly, on that point, did you tell the Mr. BYERLY. No, sir. What that letter is, is somewhat of a synopsis of what is contained in the case report. There is one of the exhibits in the case report is a record of criminal history. And that record of criminal history showed definitely to the Assistant U.S. attorney that Mr. Weaver had no prior criminal convictions. Senator SPECTER. Well, how do you know that that was shown to the assistant Mr. BYERLY. I do not know that, sir. Senator SPECTER. Well, did you take any affirmative steps to correct your letter which said that he had prior convictions? Mr. BYERLY. I had telephone conversations with the assistant Senator SPECTER. Well, just a moment ago you said you had not told the assistant Mr. BYERLY. I do not recall. I do not know if I did or I did not, but I know I discussed the case with the assistant Senator SPECTER. Well, how do you know the assistant Mr. BYERLY. Because I discussed the case with the assistant Senator SPECTER. But did you discuss with the assistant Mr. BYERLY. I do not know, sir. Senator SPECTER. Senator Leahy? Senator LEAHY. Thank you, Mr. Chairman I am sitting here somewhat troubled by all of this, I must say. For what it is worth I own a lot of weapons—handguns, revolvers, semi-automatics, long guns. I do a lot of shooting, target practice. But, at the same time, I also realize that there are laws that are appropriate and right at both the State level and the Federal level on guns that should be followed. I, also like Senator Thompson, have prosecuted cases and used informants. I say that because, as I sit here listening, there are all these little things that just jangle wrong in my mind as I hear this testimony. To go back to what I said yesterday, we have a case where we have a And all of this comes from somebody who sold two shotguns that you or I could buy at Sears and Roebuck and spend an extra $15 for a hack saw, and cut them off and if we have any ability at all in woodworking, put the pistol grips on them and so on. I mean this, I find that during the night last night I was thinking this over and over again: how anything could become so tragically wrong. Now, Agent Byerly, you said, in answer to Senator Kohl's question, that you would have not done anything differently up until the time of Mr. Weaver's arrest and arraignment. Would you have done anything differently after that part, after the arrest and arraignment? Mr. BYERLY. I am not sure I understand your question. Senator LEAHY. Well, you said that Mr. Weaver was brought in and arraigned originally. You said, as I understand your answer to Senator Kohl's question, you would not have done anything differently up until that time, is that correct? Mr. BYERLY. That is correct. Senator LEAHY. Would you have done anything differently after that? I mean you have seen everything that has happened, would you have done anything differently? Would you have made different recommendations to the Marshals Service? Would you have gotten involved differently? Would you have done anything differently? Mr. BYERLY. If I could have done or if I could do anything to bring back the lives that were lost, of course I would. Senator LEAHY. Well, so would we all, but I am thinking about the procedures. Mr. BYERLY. I have thought about this a lot, Senator. Senator LEAHY. I am sure. Mr. BYERLY. I believe, in my heart, that what I pursued, the techniques that I used were proper. I discussed the case with the Assistant U.S. Attorney's Office. I made the recommendation that he be prosecuted. Senator LEAHY. Well, let us go a little bit into how you got the information you had and what information refers to things that were actually there and things which may have been prompted by the Government's own action. Mr. BYERLY. Yes. Senator LEAHY. Are they written down? Mr. BYERLY. Yes. Senator LEAHY. Do you offer training or guidance to agents or informants on how to conduct surveillance on things like the Aryan Nations? Mr. BYERLY. We provide instruction as to entrapment, as to— Senator LEAHY. No, but what I am saying is if you are talking about organizations where some members may be there just because they want to express their views, hateful though we may find them, and you have other members who may be in there and engage in criminal activity, do you have special training on that type of situation? Mr. BYERLY. To provide to informants? Senator LEAHY. Yes. Mr. BYERLY. No, sir. Senator LEAHY. To agents? Mr. VITA. Senator, I may be able to help on this one. Our agency policy is that we do not investigate groups, per se. We investigate individuals that may be members of groups that are involved in criminal activity. Senator LEAHY. Do you have guidelines and special training for that? Mr. VITA. We cover those issues in our basic training for our new agents, in our criminal investigator schools, in our refresher training courses that we put on. We put in-service courses on for our agents. Senator LEAHY. Have these guidelines or trainings been modified at all since 1991? Mr. VITA. I know we have introduced some new training since then, sir. Senator LEAHY. Have there been specific changes in either guidelines or training as a result of the Randy Weaver case? Mr. VITA. I am sure the lessons that were learned through this investigation, not only the lessons learned by ATF but through other agency's activities, we have changed a lot of the things that we do. Senator LEAHY. So that would be a yes? Mr. VITA. Yes, sir. Senator LEAHY. Let us go to the January 20, 1987, meeting between the informant and Mr. Weaver. That led the BATF to conclude that Mr. Weaver had a propensity to commit criminal acts. And the transcript of that meeting, Mr. Weaver said to the others present: "You guys want to get something going, that is fine with me. I do not. I have not heard nothing." Does that suggest that he wanted to get really involved in criminal activity or he might want to get away from it? Mr. BYERLY. Well, that suggests, at least at that meeting, that he expressed that he did not want to participate at that time. Senator LEAHY. Well, let me go then to another point on this. Randy Weaver, as I understand the testimony—and correct me if I am wrong on this—sold two sawed-off shotguns. Again, I think we are going to have to accept not an esoteric high-tech type of weapon, obviously a dangerous weapon if used against you. But he sold two and got paid $700 or $750 I believe it was for them. He testified that it cost him about $250. He needed money at the time. And those are the only guns that you know of and the only illegal weapons that you know of that he sold? Mr. BYERLY. Yes. Senator LEAHY. And when he talked about oh, I could get four or five more or whatever else, did anybody stop to think this might be bragging or braggadocio or anything else? I mean I am sitting back thinking of some of the times when I was a prosecutor years ago and we had somebody wired, I mean you would oftentimes have somebody say, oh, yes, well, you know, I have been involved in these three bank robberies and everything else and you would find out there is no such banks even in such a place. That is not an uncommon occurrence, am I correct? Mr. BYERLY. Certainly that is a consideration, yes, sir. Senator LEAHY. But you never had any indication at all that he ever had or subsequently would be involved in anything other than the two shotguns that the informant bought from him? Mr. BYERLY. No. On the meeting, on the recorded meeting on November 30, 1989, Mr. Weaver said that he had five other shotguns and he described that he wanted $150 for the single shots and he wanted $300 for the pump shotgun. Senator LEAHY. Well, then let me follow this, you said that the purpose of pursuing the two sawed-off shotguns, on October 24, 1989, was not to subsequently enlist Weaver as an informant but to determine how he was involved in gun trafficking, is that a fair analysis of your— Mr. BYERLY. Correct. Senator LEAHY. But did you take additional steps to determine if he was involved in gun trafficking other than this conversation? Mr. BYERLY. No, we did not. Senator LEAHY. Subsequent to the breakdown of your relationship between your confidential informant and Mr. Weaver, in November 1989, did you receive any information about Mr. Weaver violating any gun laws or trafficking in guns? Mr. BYERLY. After November 30? Senator LEAHY. Yes. Mr. BYERLY. No. Senator LEAHY. Before the October 11, 1989, meeting between your informant and Mr. Weaver, did you have reason to believe that Mr. Weaver was involved in violation of gun laws or gun trafficking? Mr. BYERLY. There was some comments made by Mr. Weaver during the meeting of August 30, 1989, wherein Mr. Weaver expressed to the confidential in dormant that he wanted to commit certain crimes, one of them being bank robbery. Senator LEAHY. Do you have that based on what the informant said? Do you have that based on a wire? Mr. BYERLY. No, that is what the informant said. Senator LEAHY. I want to make sure I understand your answer to Senator Thompson's questions earlier. Am I correct in understanding that it is more the exception than the rule when your informant is wearing a wire? Mr. BYERLY. It is more the exception? Senator LEAHY. It is more the exception than the rule when the informant is either wearing a wire or having some other electronic confirmation of what was said? Mr. BYERLY. No, sir, it is not. As a matter of fact, in the July Senator LEAHY. Of the times that the informant and Mr. Weaver were talking, what percentage of the time was there electronic verification of what was said? Mr. BYERLY. The confidential informant met Mr. Weaver, along with many other people, in July 1986. The next time that he saw him was January of 1987. This was not recorded. The next time he saw him was July 1987, which was not recorded. The first time that Mr. Weaver was recorded was on October 13, 1989, after the meeting on October 11, 1989, where he expressed his desire to go into business with the confidential informant. Senator LEAHY. It was about 7 months later that you submitted a report to the U.S. Attorney about the sawed-off shotguns? Mr. BYERLY. That is correct. Senator LEAHY. There is one question I have, Mr. Chairman, if you will indulge me a bit. In a gun crime, check the statute 18 U.S.C. Section 5861 that Randy Weaver was originally charged under, carries a maximum 10-year imprisonment. Mr. BYERLY. No, that is not correct. What is correct is I told him that any assistance that he could provide to me or to us would be relayed to the assistant Senator LEAHY. So he had no reason to believe that you would drop the charges? Mr. BYERLY. No Senator LEAHY. Thank you, Mr. Chairman. Senator SPECTER. Senator Feinstein. Senator Feinstein. Thank you very much, Mr. Chairman. Mr. Chairman, the way I look at this there are essentially two parts of it. One is the ATF part, and that is the investigation and the arrest and taking a look to see that it is a bona fide investigation and a bona fide arrest. The second part is what happened after that and that is Mr. Weaver turning himself in. It is the role of the judge, the marshals, the FBI played in bringing him in and what happened. Today we are dealing just with the first part. I just reviewed the transcripts of the wires, the wire that the confidential informant wore. I have also tested the actual tapes to see that critical parts are intelligible and are Mr. Weaver's voice, and they are. I think it is I would like to read one part into the record, and then ask Agent Byerly some questions about it. I am reading from a document entitled, "Copy of Telephone Conversation of Confidential Informant and Randy Weaver October 13, 1989." "Randy: Uh-huh." "Gus: And he expressed a real interest if he thinks it can be done." "Randy: OK. Ah, pertaining to the chain saws?" "Uh-huh." "What do you think you can do with those as far as the sizes of them that we talked about?" "Randy: Well, the—" "Gus: What do you think the minimum is you can supply?" "Randy: One at a time, one-time deal?" "Gus: No, we are probably looking at, over a period of time, he would like, when it is possible, he would like to get just one to see what kind of quality we are looking at." "Randy: All right." "Gus: Ah, maybe if you could put something together and bring it with you that Thursday or that Tuesday." "'Randy: I will have it." "Gus: OK. What size do you think you are looking at?" "Randy: How about if I bring you one of each?" "Gus: OK. Now we are talking." "Randy: The single-bar and then the one with extra bars." Mr. Byerly, would you interpret that, please? Mr. BYERLY. Yes, I would interpret that a single-bar would be a single-shot, and at the time I thought from the conversation that the double bars meant a double-barrel shotgun. Senator FEINSTEIN. That would be the one with extra bars? Mr.. BYERLY. Right. Senator FEINSTEIN. OK. "Gus: OK, so we—uh—I don't know my chain saws that well." "Randy: OK." "Gus: As far as chain saws, are we talking about the 12's and the 14's?" Would you interpret that, please? Mr. BYERLY. That would be a 12-inch or 14-inch barrel. Senator Feinstein. "Randy: Oh, I see what you mean. Well, I'll have to see. I'll talk to you more about it then." "Gus: OK." "Randy: OK." "Gus: That'll be fine." "Randy: Um, yeah, it'll be real similar." "Gus: That'll be great." "Randy: OK." "Gus: 'Cause, ah—and he's that way. He likes to see the quality, which you understand." "Randy: Right." "Randy: Right." "Gus: So, OK, good." "Randy: I'll see you the following Tuesday." And they set the time. Then comes, "Copy of NAGRA Tape—C.I."—confidential informant—"Purchase of Shotguns from Randy Weaver on 10—24—89," and these are identified with an R and a G. Can you, Mr. Byerly, tell me which is the R and which is the G? Mr. BYERLY. Yes. The R would be for Randy, and the G would be for the confidential informant, Gus. Senator Feinstein. OK Now, they are in a car, and they are going to a park where they can talk. There are some people around, and they decide—"Down that way we can kind of keep an eye on anything that's coming around the school too * * ~" "R: Too many people around." "G: Yeah * * * OK * * * I'll just follow you down." "R: OK', G* * * That way we can do what we gotta do." "G: That's a couple of blocks"—and then they move. And then, "G: Did you get in yet?" "R: You can tell that guy that I can do a better job * * * " "G: All right. Now * * * the * * *” "R: When I get my workshop set up I can do a better job * * ~" "G: OK" "R: I brought a single shot and a pump." "G: All right. Now you said for $150 you could do pretty much four or five a week, couldn't you?" "R: Well * * ~ "G: * * * If he likes what he sees* * OK* * *~, "R: * * * You're talkin' single shots?" "G: OK." "R: They're actually more than that on the pumps * * *" "Yeah * * * well, that's fine." "G: I don't have a knife on me. Let me grab my mittens here," et cetera, et cetera. "R: It works?" "G: OK." "R: I won't ever give you one that don't work." "G: OK" Then R is unintelligible. "G: All right * * * beautiful * * * why don't I do this * * * uhmm * * * how about if I give you * * * today how about if I give you $300 for both?" "I'll take that." “OK.” "* * * I gotta have more than that on the * * * I'm goin' have to have $300. On the shotgun * * * or the pump." "G: All right." "The pump's $300." "G: All right. Why don't we * * * why don't we do this * * * why don't we go $300? On this, and from what I see, I don't see And then it goes on for a while, and then, "OK I just got * * ~" "R: I will ~ * * I got to scramble my [three-letter word] off." "G: OK" "R: How many you want * * * four or five a week?" "G: Well * * *~' "R: I'll try to do my best to do that." "G: All right. Now let's make sure of one thing. There is no way * * * there is no paper or nothing on this ~four-letter word]?" And then it goes on and it essentially discusses the deal. Now, I think members have to listen to this for themselves and make their own judgment on, you know, what they consider. But in the reading of it, it would certainly seem that we are talking about more than one or two shotguns. Are there any other wire tapes, Agent Byerly that discuss transfer of weapons that are available to this committee? Mr. BYERLY. Yes, there are. The November 30, 1989, transcript. Senator FEINSTEIN Mr. Chairman, I would like to ask that these tapes be entered into the record, and the tape is here and it is available if members wish to take a look at it. Senator SPECTER. Without objection, they will all be made part of the record. [The tapes follow:] COPY OF NAGRA TAPE—C.l. PURCHASE OF SHOTGUNS FROM RANDY WEAVER ON 10—24—89. INVESTIGATION #93380 90 5533V R: Howdy. G: Hey, guy, how ya doin'? R: Good. How you doin'? G: Well, not too good. R: Really. G: We're not going to be able to go up to R: No kiddin'! G: So . . . I've got until 2:45 then I gotta catch a flight down to her. She's not doin' real good. R: Where's this at? G: Outside of R: Oh, man. G: Yeah. R:. . . She is real bad shape? G: Well, sound like it. R: How old is she? G: Uhmmm. . . seventy. . . three. R: Yeah. G: Those things happen. R: Yeah. G: So. . . So, I didn't know how to get hold of you. R: Yeah. G: Ah. . . You got a neighbor, don't you. . . down at the bottom of the hill. H: Yeah. G: Do you have his number? R:. . . What the hell is it?. . . Oh, I'll give you his name. G: Okay, give me his name. R: You got a piece of paper. . . in your billfold (no conversation for a few seconds G: Then if I give him a call, he can holler at you, or. R: I think it will be listed in the Bonner's Ferry phone book or G: Oh, okay. G: Is that okay? R: YeaI. . they're good folks. G: So anyway, that's yours. . . think we can grab a cup of coffee and. R: Alrighty. G: You can show me what you got, or… R: Yeah. . . ahhh…. G: Okay, Let's go. . . how about the public park? R: Okay. G: Down that way we can kind of keep an eye on anything that's coming around the school too. R: Too many people around. G: Yeah. . . okay. . . and I'll just follow you down. R. Okay... G:. . . That way we can do what we gotta do. G: That's a couple of blocks down this way? R: Well,. . . Edgewater... G: Oh, yeah, okay (unintelligible) yeah. R: That's the only one I know of. G: That's the only park I. . . well, where you, Frank and I went that day. R: Yeah. G: Okay. I'll just follow you. Yeah, I saw two guys standing down there . . . so R: (unintelligible) G: So, how va been? R: Okay. . . busier than hell. G: Alright. R: (unintelligible) I get mixed up G: Did you get in yet? R: You can. . . tell that guy that I can do a better job G: All right. Now. . . the. R: When I get my workshop set up I can do a better job. G: Okay. R: I brought a single shot and a pump. G: All right. Now you said for $150 you could do pretty much four or five a week, couldn't you? R: Well. G: If he likes what he sees. . . okay. R: You're talkin' single shots? G: Okay. R: They’re actually more than that on the pumps... G: Yeah. . . Well, that's fine. G: I don't have a knife on me. Let me grab my mittens here and. . . okay. that looks like good quality. R: It works? G: Okay. R: I won't ever give you one that don't work. G: Okay. R: (unintelligible) G: All right. . . beautiful.., why don't I do this.. . uhmm. . . how about if I give you. . . today how about I give you $300 for both? R: Uh. . .uh. . . I'll take that. G: Okay. R: And I gotta have more than that on the. . . I gotta have. . . I'm goin' have to have $300. On the shotgun. . . or the pump. G: All right. R: The pump's $300. And a hundred and a half on the. G: All right. Why don't we. . . why don't we do this. . . why don't we go $300. On this, and from what I see, I don't see a problem at all. And when we get together uhmm. . . I'll bring the difference up. R: Okay. G: Next time around. R: Okay. G: Okay?? R: Sounds good to me... G: All right. Sure sorry about. . . Momma today. . . yep. . R: Yeah… G: Uhmmm R: Yeah, that's too bad about your mother. G: Well… G: Why don't you count that for me? R~ Okay (counting money) 20, 40, 60, 80, 100, 20, 40, 60, 80, 100, 20, 40, 60, 80, 300. G: All right. You got a little bit of time for a cup of coffee or something? R: Yeah, you bet. G: Okay. I just got R: I will. . .I got to scramble my------ off. G: Okay. R: How many you want. . . four or five a week? G: Well. R: I'll try to do my best to, do that. G: All right. Now let's make sure of one thing. There is no way. . . there is no paper or nothing on this R: Uh. . . (meaning no?) G: Okay. You got that all covered? R: Umumummm. . . (meaning yes) G: All right. R: No way. G: Okay. . . All right. Well, you know —.—— runs downhill. G: You know, I've been in this business far too long to get over now. R: I'll tell you one thing. I'd never talk about you. G: Okay. R: If I go down the tube, I do down the tube. G: All right, well. R: I don't -----nobody. G: Nobody goes down the tube. I haven't had that problem and, you know, the way I see it is—uhhhh . . . there's money to be had and it looks like you did a real nice job. . .so. R: hey, I can do better than that. . . I mean. G: Right. R: As far as cutting the barrels off G: Now what. R: Sitting under a shade tree with a vise and a hacksaw. G: Uhhh . . . let's do this . . . I'll . . . it's probably going to be well, going to be. . . uh, I gotta go down there, I'm definitely going to see my source. . we're going to meet somewhere. . . ahhh. . . I'll just give those people a call. You might get with them and tell them. . . ahhh. . . If Gus calls, R: If Gus calls them. G: If I call them, they know they gotta get hold of you within a day or two, or however. R: I'd rather deal through you. . . I don't wanna deal through. G: No, no, no. . . I mean the people that live below you. R: Oh, at the head of the lane. G: Yeah, Dan and R: Yeah. . . I'll tell you what. . . I'm goin' get a hold of you. G: All right. R: I'm gonna call you. . . can you call me back within three or four or five minutes? G: Yeah. R: I'll work it that way. G: All right. R: I'll call you and I'll wait by the phone. G: Okay, now if you don't hear from me. . -I'll call back call back and I'll make sure somebody. . . you know, the wife or something get the. R: Okay. G: gets the. . . If I have to leave town, I'll make sure somebody. . - R: Okay. G: Keeps an eye on. R: You gave me your address, didn't you? G: No, I gave you a P.O. box. . . yeah. . . that's my P.O. box. R: Oh, well me and the wife, you know, she don't known anything about what we're doin'. . . G: Okay. . . R: But I'd like her to meet your wife and family, if that's all right, sometime. G: Sure, we can do it sometime. R: And other than that, we don't have to be real buddy-buddy G: Yeah. . .no. R: She would feel better. G: I don't like it. . . I don't like it to be buddy-buddy. . . business is business. R: Yeah, yeah. . . She would feel better about it. G: All right. R: The whole thing. . . She's, you know, up tight. G: Okay. . . Well, why don't we go back up to Connie's. . . I'm a little bit hungry and we'll go have something to eat and. R: All right. G: (alone in the vehicle). . . He's parking out front. I'm going to park back here. They're beautiful. I got both of them and they are beautiful. G: Man, cold. R: Yeah. G: I've had a cold for the last four days . . . things are just . . . (conversation with unknown person) G: Thing are just going right down the toilet here the last few days. R: Built me a generator too. G: Oh, good... R: . . . good thing. . . we haven't had one before so. . (unintelligible) traded handguns for one and it's got to be overhauled. (unintelligible) G: All right. R: (unintelligible). . . right now - G: Okay. R: I didn't have time to do it I really. . - I would have done it myself. G: Been a chore. moving has it? R: It was kind of nice, I'm going home early today because I can get at more firewood. G: Yeah, well. R: It's a bad situation the way it is. . - G: I just figured didn't have much of a choice . . . I didn't want to leave you hangin' up here. . - R: Well, I'm glad you didn't. I appreciate that. G: Well . . - you know I like to take care of people that I do business with, so G: Sunday. R: Sunday? G: Yeah. . . well - . - it's kind of cold but . . . you know, I huh? R: Is your dad still alive? G: Yeah and ~... (talking to waitperson... I think I'll just have buttermilk pancakes...) R: I'll just have coffee. G: Uh. - .me too. - R: Are you sure?? G: Yeah --- I have an upset tummy yet... R: Just coffee... (waitperson gone...) G: I live kind of by an old rule. - - we're born, we live, we die. R: Yeah, that's true. G: And you get to a certain age and you know, that stuff's gonna happen. R: Right - - G: There ain't nothin' you can do about it ... R: That's right - . - G: Well, it looks like you did a real nice job, even if it's for whatever reason ... R: They're fun. . . They're fun to shoot. G: (laugh) Yeah, I know... R: (laugh) That's it. G: Well, oh well. There's money to be had in, you know . R: That's what the good name of the game is you know personally I hope they end up with a street gang . . . R: That's where I hope they'll end up! G: Uhhh. - . where they end up, I don't know... R: Yeah ... R: No, I don't want to know. G: And. . . and number two, everybody covers everybody's R: Right. G: So. . . ahhh. . . so we got it straight, we go $150. R: on the singles. G: on the singles, and. R: $300 on the pumps. G: and $300 on the pumps. Okay, I'll pass that across with him and uhhh. R: If he gets, you know... G: Uhhh, uhhh,uhhh R: You know what my biggest problem is? G: Yeah. R: My biggest problem is going to be running around and picking up here and there and watching the paper and going out and making buys. G: Oh yeah. R: (unintelligible) G: Well, that's why, you know, that why I want. . . I want it to be worth. worth your time. R: Yeah. . . well, if I can. . . you know. G: You figure. . . you figure ahhh. . . four or five a week. R: Yeah. G: Pretty good. . . yeah. . . that's payin' for all your running around. R: Well, I figure I clear (unintelligible) G: Well. R: Since I'm not doing. G: Well, we'll. R: I'm not going to buy any new (unintelligible). Some of them may not look real new, work right but I know if they work good (unintelligible) some guns get looking old. G: Okay. . . well. R: And uh, but I know if they're good or worn out. G: Okay. . . well, like I said, the biggest concern we always have is. . . is there any kind of a paper trail. R: Right. . . no. . . no way. G: That's going to chase us around. R: Nope. . .not on that. G: Okay. R: (unintelligible) G: Okay. . . I don't want to know about it, you know. R: Yeah, (unintelligible) G What's ahh . . . what do you hear from . . . uhhh . . . down south a little ways, anything? R: Haven't saw anybody.. . (unintelligible) G: I've never felt (cough) comfortable with them. R: I don't like them (unintelligible) G: What I'll... uhmmm... R: I'll tell you what, I'm goin uh. . . when I'm ready to meet her, I'll give you a call... R: If I don' get you, I'll just call you back. G: Okay. R: And if there is an emergency that comes up, you can call Dan and G: All right, why don't we work it that way. Uhhmmm, tentatively, why don't you plan on calling me. . . today's Tuesday. R: (unintelligible) I'm gonna be. G: The rest of this week. . . I think's. R: I'm really busy this week. G: Yeah. R: And I may not have anything for you. . G: All right R: So I would think almost the week after that. G: That'd almost work out. . . because, what I'm thinkin' is I . . . things don't look good down there, you know, so I'm expecting the worse. . . that's goin to take the rest of this week. R: Right. G:. . . Next week I'm supposed to be doin' my business. R:. . Right. So lets not do anything this week, let's not do anything next week, and why don't you plan on calling me that Monday . . . what's today . . . the 24th (counting). . how about the 5th of November? R: That's my anniversary. G: Is it? R: yeah. G: Well, call me that day. . . we won't do anything. R: Okay. . . what day will that be. G: That'd be Monday. R: Monday. G Not this coming Monday. . . whatever the following Monday is. R: Right. G: Give me a call R: Sounds good to me. G: I won't meet you on your anniversary, anyway. R: Right. G: But. R: I'll . . . I'll take the old lady out. . . and (unintelligible) G: Okay . . . and then . . . the easiest thing to do is just . . . on that beeper just say "Randy" and give me the phone number at least twice. R: Right. G: Don't worry about the area code. R: Right. G: Just give me the number and then hold tight, and if you don't hear from me in ten minutes, beep me again. R: Okay. G: Okay? R: Okay. (unintelligible) G: All righty. R: It will probably be like between sometime in the afternoon or evening. G: All right. R: Is that okay? G: Yeah, that's fine. R: Okay (unintelligible) G: I didn't know if you'd had. . . you got snow up there yet? R: No no. G: As high as you are, you might get a few drops. . . (lots of background confusion. . . but not much conversation) R: I thought about calling in . . . to make sure that everything was okay I should have done that. G: Yeah. R:. . . I should have probably done that. We could have rearranged the. G: Well, that's okay as long as I got my . . . I'm up here early you know, that gives me time to . . . to while away . . . take my littlest boy and he is going to stay with my in-laws . . . and . . . we're gonna get out of here this afternoon, so it won't take us. . . we'll be down there by early evening. I hate this stuff. I haven't looked forward to this at all, R: (unintelligible) G: (Unintelligible) Well, listen, I think I'm going get . . . I'm kind of a nervous nellie about. R: Really. G: My wife and . . . my wife and my Mom are real close and . . . she couldn't quite understand why business was important to me, and I tried to explain business is business . R: Hey Gus. . . thanks. G: Thank you. R: I appreciate it. G: You have a good a. R: I'll give you a call on Monday the 6th. . G: Okay. . R: If you counted wrong. . . I'll be the 5th. . G: Okay. . R: See you later. . G: Okay. . . thanks, Randy. Senator FEINSTEIN. So if I understand what the testimony of the Alcohol, Tobacco and Firearms is, even with two guns, although for many of us a man without a criminal record and perhaps having trouble feeding his family, selling two guns may be one thing; entering into an agreement to sell a large number of guns may be another. The question I had, Agent Byerly, was: Right after the deal fell apart and he was asked to be an informant and said, I don't want to snitch, I refuse the offer, in essence, the case was filed. Is that correct? Mr. BYERLY. Well, the criminal case report, Senator, had been submitted to the Senator FEINSTEIN. Because I think that is a very vulnerable thing. If he had agreed to be a confidential informant for you, then I assume the case would not have been filed. Is that correct? Mr. BYERLY. Well, certainly from the submission of the case report, as in this case, the case report was submitted in May, and it was not until December that a grand jury returned an indictment on it. The case report had been submitted to the Senator FEINSTEIN. Could I ask just once again—and I do not mean to carry on about this, but why didn't you wait before it was submitted? Did you just feel the cover was blown and, therefore, you could not—why didn't you wait until you had a more substantial case? Mr. BYERLY. I believed on November 30 that the relationship between Mr. Weaver and the confidential informant had been compromised, that there was doubt in my mind—or I had concern in my mind for the confidential informant. Mr. Weaver had confronted him. They had a very verbal argument with Mr. Weaver's concerns that Mr. Fadeley was an informant. In this taped conversation, Mr. Weaver stated that he did have with him five other additional sawed-off shotguns. He stated the price to Mr. Fadeley— Senator FEINSTEIN. Will you stop? That he had with him at that time? Mr. BYERLY. That is correct. Senator FEINSTEIN. Did anyone see those shotguns? Mr. BYERLY. No, they did not. But he stated to Mr. Fadeley a price, $150 for the four single-barrel shotguns and $300 for the pump shotgun. They had a discussion about that. Mr. Fadeley stated that his source could not come up with $300, that it would¶ be $250. Mr. Weaver continued that he had to have $300 for these shotguns. But it was my concern at that meeting that the safety of the confidential informant had been compromised. Senator FEINSTEIN. The one thing I did not check, did this conversation take place in Mr. Weavers car or in the confidential informant's car? Senator FEINSTEIN. Where the five shotguns you say might have been. Mr. BYERLY. That was in the vehicle of the confidential informant. The informant had met Mr. Weaver at a restaurant. They convoyed together in two separate vehicles into a parking lot of a shopping mall, and then Mr. Weaver got into the confidential informant s vehicle. Senator FEINSTEIN. I see. Thank you very much. Thank you, Mr. Chairman. Senator SPECTER. Thank you, Senator Feinstein. Senator Grassley? Senator GRASSLEY. Thank you, Mr. Chairman. Mr. Byerly, you pointed out that the compensation paid to your informant, Mr. Fadeley, was also for services regarding information on people other than Randy Weaver. So was anyone other than Weaver ever arrested or prosecuted based on information provided by this informant? Mr. BYERLY. Yes. Senator GRASSLEY. How many other people were arrested based on information from that informant? Mr. BYERLY. On one particular investigation, the confidential informant provided information which, after the investigation continued, arrests were made and five individuals were arrested. Senator GRASSLEY. Were they convicted? Mr. BYERLY. Yes, they were. Senator GRASSLEY. In the jury trial against Weaver, the FBI was criticized and actually sanctioned by the judge for withholding evidence. In regard to information regarding your informant's compensation, the Department of Justice report found that the predominant blame for the late disclosure of this material rests with the BATF agent and not with the FBI. Mr. Byerly, were you held accountable in any way for withholding this information? Mr. BYERLY. Well, I am not sure what you mean, accountable. Senator GRASSLEY. Accountable in the sense of was there any letter put in your file or was there anybody higher up in your organization who told you that that was wrong or any way an administration holds, a bureaucracy holds people within the organization accountable for doing something wrong where the DOJ report found that blame rested for late disclosure of information based upon what you did or did not do. Mr. BYERLY. No, sir Mr. VITA. Senator, I might add one thing. The Treasury IG did the same review as what was done by Justice, and the Treasury IG's findings were inconsistent in that area as far as Justice's finding. The Treasury IG finding, as I recall, did not indicate that there was any withholding of information by Mr. Byerly. Senator GRASSLEY. The evidence shows that others either offered or sold your informant illegal firearms. Were any of these other people arrested or prosecuted? Mr. BYERLY. No. Senator GRASSLEY. Mr. Byerly, you mentioned that you were investigating individuals known to be involved with criminal actions Mr. BYERLY. No. Senator GRASSIEY. I want to go back to how well you knew your informant. Your whole case against Weaver was based on the informant, so presumably you knew him well and trusted this informant. What did he do for a living? And how did he have time to do all of this informing? Mr. BYERLY. The confidential informant is in business for himself. He is a legitimate businessman involved in industrial security. He is a good citizen. He had no criminal background. He has not been arrested for anything. He is a family man. He is an upstanding citizen. He is a leader in the community. I have never found the confidential informant to exaggerate anything that he has told me. I have never found any falsehoods in what he has told me. He has been electronically monitored numerous times, and I have never found anything that he has told me— Senator GRASSLEY. How many years did you know him before he had this confidential relationship with you? Mr. BYERLY. Well, I met him approximately in 1985. Senator GRASSLEY. Did you do any kind of background check on him before he became a paid informant? Mr. BYERLY. Yes, sir, I did. Senator GRASSLEY. And you said he did not have any kind of criminal record. Is that right? Mr. BYERLY. That is correct. Senator GRASSLEY. He had at least one other alias. Do you know if he had a Social Security number for each of his identities? Mr. BYERLY. I do not believe he did, no, sir. Senator GRASSLEY. You said that no others were arrested for selling firearms to your informant. Why weren't they arrested like Weaver was? Why was Weaver singled out, is the point I am trying to make. Mr. BYERLY. Well, I do not believe Mr. Weaver was singled out. Senator GRASSLEY. I want to know—OK You say he was not singled out. I will accept that. Why weren't the others arrested like Weaver was? Mr. BYERLY. Are you talking about the individual that had made a sale of an illegal firearm to the confidential informant wherein I made a recommendation to the Senator GRASSLEY. I am talking about any particular individual that sold firearms to your informant, and I want to know why they were not arrested. Mr. BYERLY. Well, every case would certainly have to stand on its own merits. Senator GRASSLEY. Well, then, how does that case differ from Weaver's case? If there was a basis for that person not being arrested and you made a judgment that he should not be arrested, you made a judgment that Weaver should be arrested. What is different about that case and the Weaver case? Mr. BYERLY. In the investigation concerning an individual who was identified in 1986, wherein the confidential informant made a purchase from him of an illegal firearm, at that time this individual was making plans to kidnap children at a school, and I pursued this investigation long after this individual provided an illegal firearm to the confidential informant. I did not want to burn the identity of the informant. I felt like it was more important to follow up this investigation concerning the kidnapping of these kids than to burn the informant. So all this was taken into consideration at the time of the investigation. Senator GRASSLEY. According to Randy Weaver, you approached him with an offer to help you by providing you information about illegal activities of the Aryan Nations members, and in return for this help, you would speak favorably for him to the Is this generally an accurate description of what happened? Mr. BYERLY. I described to Mr. Weaver that there were certain individuals that he was acquainted with that he could certainly provide assistance to us in making introductions or possibly contacting these people, possibly wearing a miniature transmitter, and any assistance that he might provide would be referred to the Senator GRASSLEY. Did you ever say anything like either join the team or pay the consequences, that is the way it is done? Mr. BYERLY. No, sir, not in those words. Senator GRASSLEY. I want to read from—another way that you approached it, "I told him that a case report had been submitted regarding the alleged violation and that he could help himself by providing information to us regarding illegal activities of the Aryan Nations and those associated with him. I told him I would give him until tomorrow to come into our office and discuss cooperating with us, and that if he did not show, I would consider him as having refused our offer. S.A. Gunderson and I explained all the various outcomes of his decision, including going to trial, being found guilty, not guilty, imprisonment, or being on probation." I think in retrospect we now know that he did pay those consequences, and the process of paying the consequences~ began shortly thereafter when you paid a visit to the Assistant U.S. Attorney Ron Howen and discussed the matter, seeking assurances that Randy Weaver would, indeed, be indicted. So Randy Weaver's perception of the Government reaction to his lack of cooperation, it seems to me to be valid based upon what he has said, which you said you did not remember if it was exactly said that way, and what you had reported to the investigators, your version of your approaching him. So you weighed in with the Would you describe what you believe to be a significant threat of violence, what that was? Mr. BYERLY. Yes, Senator. Sometime prior to January 1991, after the arrest warrant had been obtained for Mr. Weaver, I had several different contacts, I know for sure with Sheriff Bruce Whittaker, Boundary County Sheriffs Department, and possibly some other officers from that department. I was given the information by the sheriff that each of the Weaver children possessed firearms. They were well versed in how to use these firearms, that they even slept with firearms, that if we were to attempt to arrest Mr. Weaver in the presence of his children, that there could certainly be a threat to us or to them or to the Weavers themselves with the children using the firearms to prevent the arrest of Mr. Weaver. I had information from a neighbor who had been providing me information for almost 6 months concerning the activities of Mr. Weaver where he and some of his associates were using firearms to shoot over their residence to intimidate them with firearms. I had some background information from the neighbors. I was aware of the Secret Service report from 1985. These are some of the things that came into play with the information that I provided to the Senator GRASSLEY. And you determined— Senator SPECTER. Senator Grassley, your time has expired, and we have a vote. Senator GRASSLEY. I am sorry. I did not realize my time expired. enator SPECTER. Well, I would not bring it up, if it is just one more question. If you can finish up in another question or two, why don't you do that? But we are at five bells on the 4 o'clock vote. Senator GRASSLEY. I guess the only follow-up I had was—and then that was the end of it—you assumed or did you know that all of those stipulations that led you to believe that it was a threat were accurate? Or were you taking just the sheriffs opinion of it? Mr. BYERLY. Well, sir, after he was arrested on January 17, he made the statement to me, Nice trick, you'll never do that again. I took that as his word, and I had a lot of concern for the marshals who would be effecting the arrest after his release. Mr. VITA. Senator, additionally, at the time of arrest Mr. Weaver, when ATF made the arrest, Mr. Weaver went for a gun that was in his pocket. Additionally, he tried to take a gun away from one of the agents that was in the arrest, and his wife was trying to get back to a truck where she had a gun in her purse. Senator SPECTER. How do you know that, Mr. Vita? Mr. VITA. That I have from Mr. Byerly who was there, sir. Senator SPECTER. Hearsay from Mr. Byerly. How do you know that, Mr. Byerly? Mr. BYERLY. From what Special Agent Hart has told me, who was there with Mr. Weaver. My function— Senator SPECTER. Was that placed in anybody's report? Mr. BYERLY. I think Mr. Hart testified to that during the trial. Senator SPECTER. That has been a point of considerable dispute. Are you sure that the testimony was given to that effect? Mr. BYERLY. I have not seen the testimony. No, sir. Senator GRASSLEY. Mr. Chairman, I think that we know how hyperbolized the threat of Weaver was, and it seems to me that this is the beginning of the process, what we just heard here. Senator SPECTER. We have a vote, which started about 10 minutes ago. It is a 15-minute roll call, so we will have to recess for a few minutes. We will return as promptly as we can and resume the proceeding. Senator SPECTER. The hearing will resume. I regret the delay, but during intervening moments, we have just had an extraordinary proceeding on the floor of the United States Senate involving the resignation of Senator Packwood and some comments from some of the Senators, including myself. So I express our regrets to the people who have been kept waiting, and we will proceed now to conclude the hearing. We have had Director Magaw standing by, but in light of the hour, we will not hear his testimony today but will hear from Director Magaw and others tomorrow morning at 10 o'clock. I now turn to the distinguished Senator from ldaho, Senator Craig. Senator CRAIG. Mr. Chairman, thank you very much, and, yes, I too apologize to those who have waited. It was an extraordinary time on the floor of the Senate, and I do believe it required us being there. Mr. Chairman, I want to pursue a line of questioning, albeit maybe brief. Mr. Byerly, as it relates to what my colleague had attempted to draw out in his questioning, and that I think our colleague from Mr. Chairman, I do not see this as two parts. I see this as pieces being linked together. And what I think is important for the record is that those pieces are linked to together. Mr. Byerly, were you involved once the Marshals Service set forth an effort to apprehend Randy Weaver? Were you and ATF involved actively from that point forward? Mr. BYERLY. No, sir, we were not. Basically I did give some information to the Marshal Service. I provided some materials to them. They came to our office in Senator CRAIG. In the three or four times that you provided them with information—~and I believe your words were just now background information—what did that encompass? And where did you get the information that you gave to them? Mr. BYERLY. The information that I gave to them basically came from the information that I had received from the Boundary County Sheriffs Department concerning Mr. Weaver's propensity towards firearms, the firearms possessed and used by his children, the information from the neighbors concerning their conflicts or their arguments or the incidents with Mr. Weaver. After the criminal case was forwarded to the U.S. attorney's office in Boise and prior to his indictment, which was in December 1990, and after June of 1990 when Agent Gunderson and I went to Mr. Weaver's residence and talked with Mr. Weaver, we did some aerial surveillance in anticipation of an arrest warrant being issued. In that, we would have to effect that arrest, so photographs of this aerial surveillance were given to the Marshals Service. Senator CRAIG. You did aerial surveillance. ATF did aerial surveillance? Or who did they have do the aerial surveillance? Mr. BYERLY. No, that was ATF. Senator CRAIG. You hired an airplane? Mr. BYERLY. It was an ATF-leased airplane. Senator CRAIG. So while you were not at the Y—and by that I mean in the area in which Marshal Degan was shot and killed and Sammy Weaver was shot and killed—can I assume that the information that you provided to the Marshals Service that caused them to have a better understanding of Randy Weaver was at the Y? Mr. BYERLY. I have no knowledge of that. Senator CRAIG. The records, the information? I have a book here replete with memos that are from ATF to a variety of people within the Marshals Service. And the point of my questioning, Mr. Chairman, is to try to understand better how the Marshals Service came to understand Randy Weaver through the eyes of you and the ATF. Mr. BYERLY. I was only one part of that whole equation. Senator CRAIG. Is it true, did you tell the Mr. BYERL. I do not recall saying that, sir, but—I just do not recall saying that, no. Senator CRAIG. Well, in a memorandum from the Marshals Service, Ron Evans and Tony Perez say that an ATF case agent made this comment. Who was the ATF case agent? Mr. BYERLY. That was me. Senator CRAIG. That was you. Do you know who Bob Matthews was? Mr. BYERLY. Yes, I do. Senator CRAIG. Do you know that he shot a talk show host, bombed a synagogue, robbed a bank, and expended a thousand rounds of ammunition while being taken down by the FBI? Mr. BYERLY. I know some of those facts. I do not know all— Senator CRAIG. Those are the facts. Mr. BYERLY. Well, I am not aware of them. Senator CRAIG. My point, Mr. Byerly, if you said this, and the memos of the Marshals Service and Ron Evans and Tony Perez say you said them, doesn't that cast an image of Randy Weaver that is much bigger than any image heretofore ever cast of him? And is this not the knowledge that they entered the arena in an effort to arrest this man? Mr. BYERLY. Sir, I know that I did not talk with Tony Perez. I may have talked with Ron Evans. I know that I did not talk to Mr. Perez. Senator CRAIG. Well, the memorandum is from Ron Evans to Tony Perez. All right? So my point, if you will, about your presence or your knowledge being at the Y encased in the memos and the knowledge that the Marshals Service was undertaking the apprehension of Randy Weaver appears to me to be there. Now, Mr. Byerly, you mentioned that Randy Weaver provided training to skinheads. Mr. BYERLY. I testified that on August 30, 1989, Mr. Weaver stated to the confidential informant that he had invited a group of skinheads to his residence in Senator CRAIG. Do you have any personal knowledge of such a thing? Did you observe this meeting, or are you relying exclusively upon the information of the confidential informant? Mr. BYERLY. I am relying on the information from the informant. Senator CRAIG. OK. In a memo dated March 1, 1991, you told the Marshals Service that Weaver was active in the Aryan Nations movement. Is this true? Does three once-a-year attendance suggest that he was active in the Aryan Nations movement? Mr. BYERLY. It would suggest to me, sir, that if a person attended the Aryan Nations Congress in 1986, 1987, and 1989 for a 3-day event for each of those years, it would suggest to me that the person was active in those functions. Senator CRAIG. What did the confidential informant tell you and testify to in court as it relates to Randy Weaver's association with the Aryan Nations? Mr. BYERLY. I believe he stated that Mr. Weaver told him that he was not a member of the Aryan Nations. Senator CRAIG. The confidential informant, I am told by the memos, told you that Weaver distrusted the Aryan Nations and he testified that Weaver was not a member nor a leader of the Aryan Nations. Mr. BYERLY. I believe that is correct. Senator CRAIG. And yet is it fair that we can assume that you told the Marshals Service that Weaver was active in the Aryan Nations movement? Mr. BYERLY. I am sorry, sir. Could you repeat that question? Senator CRAIG. In a memo of March 1, 1991, you told the Marshals Service that Weaver was active in the Aryan Nations movement. And yet at the same time, I think we have just concluded that not only did the informant tell you that he distrusted the Aryan Nations leadership, but that informant testified in court in Boise that Weaver was not a leader nor a member of the movement. Mr. BYERLY. Well, I base my evaluation of that on other things other than just the informant. I base that also on the contact that I had with Mr. Weaver June 12, 1990, wherein Agent Gunderson and I talked with him. He did have on an Aryan Nations belt buckle. He also had on the Nazi lightning bolt insignia on his lapel. 130 Senator CRAiG. Would you repeat that? When you spoke to Randy Weaver, he was wearing these things? You saw them with your own eyes? Mr. BYERLY. Yes, I did. I also base it on the arraignment which was January 18, 1991, wherein the chief of the Aryan Nations security spoke on his behalf, wherein he said that he had known Mr. Weaver for 3 years. I also know that Mr. Weaver stated that there had been some contact made on January 17 or 18, 1991, wherein the leader of the Aryan Nations had been notified by Mrs. Weaver of Randy's arrest. So in my assessment, I think he has been very active in Aryan Nation activities. Senator CRAIG. I am just simply confused. When you have an informant that tells you something different and you have accepted the statements of this informant all along as being the fact and you have built a record on that, and then you get information from that informant that seems to argue something somewhat different. Mr. BYERLY. I do not see any contradiction at all. Senator CRAIG. All right. Mr. BYERLY. He was certainly in attendance. He took his wife and family to the Aryan Nations Congress. There was splinter groups like the Order I and Order II which came out of the Aryan Nations. Just because— Senator CRAIG. Was he associated with them? Mr. BYERLY. Not to my knowledge, sir. Senator CRAIG. Then why are they relevant here? Mr. BYERLY. Because they came out of the Aryan Nations, and he— Senator CRAIG. But he was not associated with them? Mr. BYERLY. No. Senator CRAIG. OK. Mr. BYERLY. That is to the best of my understanding. Senator CRAIG. Those of us who have attempted to study that movement recognize that. I see my time is about up. I have one last question, Mr. Chairman, as it relates to this flow of information that comes from you, from ATF, to the Marshals Service, and ultimately to the FBI that portray what Randy Weaver appeared to be, at least to you, and I do believe, at least from my readings and understandings, had a substantial impact upon how FBI and Marshals Service attempted to deal with Mr. Weaver. As it relates to the first arrest of Mr. Weaver, which you folks brought about—and I am looking at a couple of documents here, and I believe a report to Jack Cluff of the U.S. Marshals Service in an interview February 2 that Mr. Weaver had resisted arrest. And yet I worked my way down through that, and in another memo to the Could you explain the difference to me between resisting arrest and an arrest without incident? Mr. BYERLY. I will certainly try, sir. Senator CRAIG. All right. Mr. BYERLY. I would suggest that a person can resist arrest and be arrested without there being any incident, with no shots fired, with no abrasions, with no twisted arms or legs. That is how I would respond to that. Senator CRAIG. And you do agree that in two separate reports you worded one as "resisted arrest" and another as "without incident"? Mr. BYERLY. I do not recall that. That could certainly fit my interpretation, yes, sir. Senator CRAIG. OK. Mr. Chairman, thank you. Senator SPECTER. Thank you very much, Senator Craig. I am going to take just a moment to play the tape that Senator Feinstein asked be played, and this is on the materials which relate to the transcript of the meeting on October 24, 1989. Would you play it for me, please? [Tape recording played.] Senator SPECTER. I wanted to play that to the extent that it could be heard, because Senator Feinstein had said to me that she had heard it, and where the transcript of this conversation of October 24, 1989, with Gus saying, "All right. Now let's make sure of one thing. There is no way * * * there is no paper or nothing on this [stuff]?" R, meaning Weaver on the transcript, says, "Uh * * * (meaning no?)" Senator Feinstein listened to it and thinks that there is a clear no. As I hear it, it is not clearly intelligible so as I can understand it. But the tape will speak for itself as to whoever can understand it. But I wanted to play that to the extent it could be made a part of the record at this time in light of what Senator Feinstein had to say, because it is an important point. What I want to do here, Mr. Byerly and Mr. Vita, is to try to understand your strongest contention. As you characterize it, Mr. Vita, that Mr. Weaver had the profile of a gun trafficker because he had an unlimited source of supply and the guns could not be traced. Those are your words, correct, Mr. Vita? Mr. VITA. Yes, sir. Senator SPECTER. Well, as I read and listen to this transcript as I read it the evidence does not support that conclusion at all. And I want you to tell me why you think the evidence does support it. There are two references in this transcript to four or five guns. One appears at page 3 of the transcript near the bottom, where Gus says, "All right. Now you said for $150 you could do pretty much four or five a week, couldn't you?" "R"—Randy Weaver—"Well * * * "That as hardly an affirmation by Mr. Weaver that he can do four or five a week, as I read it. Then at page 5 of the transcript, there is a statement here, "R"— Mr. Weaver—"How many do you want * * * four or five a week?" "G"—Gus—"Well * * *~ Now, Mr. Byerly testified that Mr. Weaver said he had four or five more sawed-off shotguns, and you have testified, Mr. Vita, that Mr. Weaver had an unlimited source of supp1y. Now, is there something I am missing? Is there something more here that the subcommittee has not been presented with? Now, am I missing something? Is there some other evidence to support your statement, Mr. Byerly, that Mr. Weaver said he possessed four or five shotguns? Is there, Mr. Byerly? Mr. BYERLY. Yes, there is a transcript for the November 30, 1981— Senator SPECTER. Can you produce that transcript, please? Mr. BYERLY. I think we can. Senator SPECTER. Please do Mr. BYERLY. Sir, that would begin with the number 00579. Senator SPECTER. I am with you, 00579. And what reference are you making here? Mr. BYERLY That would be on 00584, at the bottom of the page. Senator SPECTER. Would you read what you are referring to, please? Mr. BYERLY. Yes. "KF: What are talking about? Would you— would you bring it out with you?" "RF: Well, here's what, four at $150, $600 one at $300, will be $900, and some materials, and from last time 1,050 total. Yeah." "RW: And I wanted to—does this—will this guy buy side-by-sides?" Meaning double-barrel shotguns. Then there is further—then there is some conversation on 587. KF says, "See, see, I just want to make sure we got-—I want you to be happy with the arrangements that you've made with me on these purchases, and I want it to go smoothly for both of us. Uh, uh, but what I can do, I can give you the $100, uh, that I owe you for that, that last pump Senator SPECTER. You are reading from 587? Mr. BYERLY. Yes. I just went over to 588, to the top of 588. "For the last pump, and I'll give you a hundred and a quarter for one of the singles. Well, I thought you were going to go a hundred and a half on the singles." RW says, "Just give me the 100 bucks that you owe me. We'll set another date, and you can have them least." This was after they had the argument. Mr. Weaver said that he had the five—he had the four at a hundred Senator SPECTER. Are you representing that in what you have just read on 587 and 588 that there ~s any statement about four o five shotguns? Mr. BYERLY. No. I am saying that back over on the other— — Senator SPECTER. Well, you read the other page, but now I am on 587 and 588, and my question to you is: Are you representing there is anything at all there about four or five shotguns? Mr. BYERLY. That would be on 584. Senator SPECTER. I understand that, and I am going to come back to 584. But there is nothing on 587 and 588, right? Mr. BYERLY. No. They continued to discuss the price on these particular weapons. Senator SPECTER. Well, why bring that up, Mr. Byerly if there is nothing on those pages about four or five shotguns? Mr. BYERLY. All right, sir. That is on page 584. Senator SPECTER. Well, let's deal with that. On 584, Ken Fadeley says, "What are we talking about? Would you—would you bring it out with you?" And RW, Randall Weaver, says, "Well, here's what, four at $150—$600, one at $300, will be $900, and materials from last time, 1,050 total." Now, are you representing that that is a statement by Mr. Weaver that he has five shotguns? Mr. BYERLY. Right above that, Mr. Fadeley says, "Uh, did you bring anything down with you?" Now, this is after the October 24 transaction where Mr. Weaver provided the two shotguns to Mr. Fadeley. That was the text of the conversation, "Uh, did you bring anything down with you?" Senator SPECTER. Well, now, where does he describe anything that he brought down with him, Mr. Byerly? Where does he describe it? Fadeley says, "Uh, did you bring anything * * * with you?" "Weaver: Yeah, well, but I—we gotta go out north of town a little ways to get it." Mr. BYERLY. It is in the total conversation. Given that—Mr. Fadeley asked him, Did you bring anything down? Then they go over the prices, the same thing, the same prices that Mr. Weaver stated on October 24, $150 for the single-shots and $300 for the pumps. You take the whole conversation together in that he says, in materials, and from the last time," because he owed him $150 from last time. Senator SPECTER. Mr. Byerly, do you think that that is sufficiently precise and specific to constitute evidence of proof beyond reasonable doubt for a criminal conviction? Mr. BYERLY. No, sir, I do not. Senator SPECTER. Mr. Vita, when you say that he has the profile of a trafficker because he has an unlimited source of supply, do you have any basis for your assertion on an unlimited source of supply beyond what Mr. Byerly has testified to? Mr. VITA. Senator, only in the transcripts that I have. And I do not have the benefit of all the ones that you have made reference to, so I was having a little difficulty keeping up with the different pages. But the— Senator SPECTER. I am having a lot of difficulty keeping up with what Mr. Byerly is representing. Mr. VITA My reference came, sir, from the statements made by Mr. Weaver to the informant during various conversations, some which Senator SPECTFR. What statements? Mr. VITA. The statement where he indicates—and I am reading from a page that I have here, and at the bottom is 000623, where he makes reference-.— Senator SPECTER. 000623? Mr. VITA. Yes, sir. Senator SPECTER. Mr. Byerly had not read that one, but let's get that one, too. Mr. VITA. That is the one that is in front of me, sir. And in that, the R, which I am assuming is Randy Weaver, and I understand that to be, indicates, "How many you want . . . four or five a week?" He asks Gus, the confidential informant Senator SPECTER. Well, we have been over that. We have that, 000623. We have it. Go ahead. Mr. VITA. Yes, and you were just asking me what my frame of reference was for profiling him potentially— Senator SPECTER. Well, we have already gone over that, but let's do it again if you think that anything that is said there is substantive evidence of Mr. Weaver's having four or five shotguns. Go ahead and read what you think is the basis for your saying that Mr. Weaver has an unlimited source of supply. Mr. VITA. The indication here that he was telling this person— Senator SPECTER. I do not want an indication. I want to hear the words. I do not want an indication or a conclusion. I want to hear the evidence, if you have any. Mr. VITA. The fact that he was offering four or five a week to the informant leads me to believe, sir— Senator SPECTER. He did not offer four or five a week. Mr. VITA. He says, "How many you want?" Senator SPECTER. R. Weaver says, "How many do you want . . . four or five a week?" And the informant says, "Well . . ." And Weaver says, "I'll try to do my best to do that." Mr. VITA. Yes, sir. So he was—in my mind, he was saying that he will do his best to supply four or five— Senator SPECTER. But does that say Mr. VITA [continuing]. Per week. Senator SPECTER. Does that say that Mr. Weaver has four or five shotguns? Mr. VITA. That says only what it says, sir, that he will do his best to provide four or five a week. Senator SPECTER. Well, then, it does not say that Mr. Weaver is representing he has four or five shotguns. Mr. VITA. At the time, no, sir, it does not. Senator SPECTER. Is there anything else you have, Mr. Vita, to support your conclusory statement that Mr. Weaver has an unlimited source of supply? Mr. VITA. Only the fact that in my interpretation he was offering four or five a week. Senator SPECTER. Well, we went over that. But do you have anything beyond the transcripts which we have read here, this afternoon? Mr. VITA. And then coupled with the fact, sir, that he indicated that the transactions or the guns that he would provide would be off paper and that is consistent with a profile for some.— Senator SPECTER. Well, I am about to come to that. The second thing you said was that they could not be traced. But right now, I am trying to determine, conclusively for this record, whether there is anything else that you have on the unlimited source of supply? Mr. VITA. Those are the references that I have, sir. Senator SPECTER. OK. Mr. VITA. I have some additional things that trigger thoughts in my mind. One, the fact that he mentioned that once he got his shop set up that he would be able to improve the quality of the sawed-off shotguns that he was providing. That leads me to believe that he is predisposed to continue on this relationship and to continue on providing sawed-off shotguns to the informant. Senator SPECTER. Where does he say that? Mr. VITA. I heard that mentioned this morning, sir, in transcripts that were related. I do not know exactly what page that is on. Senator SPECTER. Well, Mr. Vita, when you talk about predisposition, you are not talking, as a legal matter, about something that a man is going to do in the future. You are talking about a point in time as the Government's way to avoid an entrapment dfense. You are saying that there is a predisposition so that when the Government makes a suggestion of some illegal activity, you can then prove that the defendant is predisposed so that he is not entrapped. But it is not a predisposition, as you make a reference to in some other testimony, to say that he is going to improve the quality at some time in the future. Or am I missing something? Mr. VITA. No. I thought Mr. Weaver said that either yesterday. How about, sir, if I read from the transcript of a conversation which I believe could be a taped conversation, 000621, sir? Senator SPECTER. Go ahead. Mr. VITA. And about three-quarters of the way down the page, sir, it says, "When I get my workshop set up I can do a better job." Senator SPECTER. Well, does that have any reference to having a quantity of guns, from an "unlimited source of supply?" Mr. VITA. That leads me to believe, sir, that he continues, that he plans to continue to improve not only the quality but to continue the supply. That is my interpretation, sir. Senator SPECTER. Well, how can you say that, Mr. Vita? What is there in the language, when I get my workshop set up I can do a better job? What is there in that language which states anything about an unlimited source of supply. Mr. VITA. I did not say it did, sir. I just said that that is part— when you put all these issues together, it would lead a person to believe that this person who was advocating that he wanted to get into the business of providing guns to this person he believed to be an arms dealer, that would lead me to believe that we still had to investigate this person to determine the full range of his activities. Just based on comments that he initially provided to the informant we could not conclusively say he was either a large-scale arms dealer or he was not. And that was a determination that we planned on making through our investigation. tHe realization of that never came to pass because somewhere along the line Mr. Weaver thought that the informant was working for the Government and chose to no longer continue his relationship with him, business relationship I mean as far as the sale of guns were concerned. Senator SPECTER. Well, Mr. Vita, you are saying a lot of words. But none of the words you are saying, as I listen to you, have any You are starting now to go back to the point about predisposition. Are you aware of Mr. Fadeley's testimony at a trial on page 87 of the transcript? Mr. VITA. I do not have that, sir. Senator SPECTER. Well, let me read it to you and see if you are aware of this. "Question: You didn't have any reason to believe by August of 1989, that he was predisposed to be dealing, and by that, I mean selling, possessing, making, delivering any illegal weapon at all, isn't that correct?" And Mr. Fadeley says, "That's correct." You are aware, Mr. Vita, that the jury acquitted Mr. Weaver on this charge based on the defense of entrapment? Mr. VITA. I am aware of that verdict, sir, yes. Senator SPECTER. Are you aware of the controversy about who initiated the call with a contention being made by Mr. Fadeley that he did not recall who initiated the telephone call? And this appears at page 84, 85, and 86 of the transcript, where there is a refreshing of Mr. Fadeley's recollection. So that on the critical question as to who initiated the call with the final question being—and I will put into the records, without objection, pages 84, 85, and 86, along with page 87. [The pages of the transcript follow: I 137 84 1 MR. PETERSON: Not in 1989. 2 THE COURT: Objection overruled. 3 BY MR. PETERSON: 4 Q In 1989 did you find Randy Weaver 5 suddenly to be a member of the Arian Nations? 6 A No, I didn't ask. 7 Q Did you find him to be a member of the B Church Christ Christian? A Didn't ask. 10 Q Did you find him to be on 11 staff? 12 A No. 13 Q In fact, he was just a guy camping 14 there, he wasn't living there at the church 15 property or the Arian Nations property at all, 16 right? 17 A He wasn't living there that I was 18 aware of. 19 Q There were people who lived there 20 though, weren't there? 21 A Correct. 22 Q The Arian Nations Church of Jesus 23 Christ Christian had on-site staff, right? 24 A Correct. 25 0 I mean, Reverend Butler, they called 138 85 1 him the Reverend Butler, right? 2 A That's the term they used. 3 0 Sure. And they even say they have an 4 assistant pastor, isn't that right? 5 A That's what they said. 6 Q Did you get introduced to him at all, 7 have you ever met him? 3 A Yes, I have. 9 0 Okay. And 10 the property, isn't th~t right? 11 A That's correct. Q And they call it a parsonage, correct? 13 A I never heard that used. 14 Q Anyone else live there on the property 15 other than 16 A I couldn't say for sure. 17 0 18 A Yes. 19 Q And his kids, for a time - - do you 20 know whether they may have lived there? 21 A No idea. 22 Q But Randy Weaver did not live on the 23 property? 24 A That's correct. 25 0 And in 1989 when you met him at the 139 86 I Arian Congress, Randy Weaver told you he was in 2 the process of working on a little cabin up at 3 the top of Ruby Ridge, right? 4 A No. S Q He didn't tell you that? 6 A No. 7 Q You met him there in 1989, in July, he 8 was still living in the 9 correct? 10 A I believe so. 11 Q Now, in 1989, Randy Weaver told you 12 that he distrusted 13 A Yes. 14 Q He told you that he wouldn't join 15 16 A I don't recall him saying he wouldn't 17 join 18 Q Didn't Randy Weaver tell you on 19 various occasions that he didn't believe in 20 joining any group? 21 A I don't recall that. 22 Q You don't recall that. Well, sir, did 23 you ever find that he joined any group? 24 A Not that I'm aware of. 25 Q Now, during 1989 at the Arian Congress 140 87 1 while you were there for those - - you were there 2 two days in 1989, correct? 3 A That's correct. 4 Q Saturday and Sunday? 5 A That's correct. 6 Q And while you were there in 1989, 7 Randy Weaver never once offered to sell you any 8 illegal firearms, right? 9 A That's correct. 10 Q He never once asked to buy from you in 11 1989 at the Arian Congress any illegal firearm, 12 isn't that correct? 13 A That's correct. 14 Q You didn't have any reason to believe 15 by August of 1989 that he was predisposed to be 16 dealing, and by that I mean, selling, possessing, 17 making, delivering, any illegal weapon at all, 18 isn't that correct? 19 A That's correct. 20 Q But at the Arian Congress in 1989, as 21 Magigono, you talked a little bit more seriously 22 with Randy Weaver about his financial problems, 23 didn't you? 24 A No, I did not. 25 Q You talked to him about the fact that 141 Senator SPECTER. "Question: Now, when you consider all of those things, doesn't it seem to you more likely than not your memory is you made the telephone call to Randy Weaver at his home on September 8, 1989?" "Answer: That is correct." Are you aware that this informant did make that concession at the trial? Mr. VITA. No, sir, I am not. Senator SPECTER. What I am trying to understand, Mr. Byerly and Mr. Vita, is why was there all of this activity directed at Mr. Weaver? Was it because you knew at this time of what Mr. Byerly has testified about regarding the relationship with his neighbors or the reputation that his family had for carrying guns, or the ideas that he was reputed to have from the contacts he had had with the Aryan Nation? Is that what was the thinking leading to this focus on Mr. Weaver? I ask this because I have a very hard time taking a look at this transcript and the evidence and the facts and seeing a basis for Mr. Vita's assertion that the man had an unlimited source of supply. Now, coming to the issue about it not being able to be traced, at page 623, we have been over this a moment ago, listening to the tape. "Mr. Fadeley: All right now, let's make sure of one thing. There is no way, there is no paper or nothing on this ." And the transcript, "Mr. Weaver: Uh [meaning no I." And then Mr. Fadeley saying, "OK, you got all that covered." Then the transcript shows, "Um-um-ummm." That is the transcript [meaning yes]. Now, do you think it is a reasonable interpretation, Mr. Byerly, that would satisfy a criminal standard requiring proof beyond a reasonable doubt, that this transcript stating—um, um, ummm— means, yes? Could that be proof beyond a reasonable doubt that this defendant, Mr. Weaver, said something that was, yes? Mr. VITA. I think, Senator Senator SPECTER. I am asking Mr. Byerly right now, Mr. Vita. Mr. BYERLY. Senator, the jury, at this trial, it is my understanding listening to the tape—I do not know what they decided as far as the tape—the tape stood by itself. I know that they were provided with a transcript but it is my understanding that they listened to the tape and made their decision from the tape. I have not listened to the tape—— Senator SPECTER. When you say you do not know what they decided, you know that they decided that Mr. Weaver was not guilty after he offered the defense of entrapment. Did not the jury decide that he was not guilty in that context? Mr. BYERLY. The jury found him not guilty. I have-it is my understandLg that there was no finding of acquittal because of entrapment. Senator SPECTER. Well, the jury does not return a special interrogatory on that. But that was the only defense, was it not? Mr. BYERLY. I am not sure on that. Senator SPECTER. Mr. Byerly. Mr. VITA. Senator, I think the issue is Senator SPECTER. Just a minute, Mr. Vita, you are not sure on that? You are the Bureau agent in charge who followed this case Mr. BYERLY. Yes, I am. Senator SPECTER. OK, Mr. Vita, you want to make a comment here? Mr. VITA. Yes, sir. Senator SPECTER. Go ahead. Mr. VITA. When you look at the issue whether Randy Weaver I think the Government presents one version; Mr. Weaver presents The issue really is that the jury chose to believe Mr. Weaver's version. And that was—I am sure it had a great deal to do with their decision. I see that as almost by them, by the jury believing that, that it was an expression, perhaps, of their either disbelief or distrust of the Government or the Government's case. And that, to me, is the bigger issue. Now, that is something that we have to work very hard to restore, that public trust, but I think that if I can, in my own way, kind of piece it together, there were two separate versions presented and the jury chose to believe Mr. Weaver's version. Senator SPECTER. Well, Mr. Vita, were there two separate versions presented? You had Mr. Fadeley testifying that he had no reason to believe that Mr. Weaver was predisposed to selling guns. There has to be a predisposition in order to avoid an entrapment defense. You also have Mr. Fadeley admitting that he initiated the critical telephone call. Mr. BYERLY. Senator, if I could answer— Senator SPECTER. Well, let us finish with Mr. Vita before we go back to you, Mr. Byerly. Mr. VITA. Could you repeat your question, please, sir? Senator SPECTER. Well, the pending question is that when Mr. Fadeley said that he knew of no predisposition and finally conceded, after looking at a number of documents to refresh his recollection, that he had initiated the critical telephone call. There was no contrary Government contention. There was just the evidence of entrapment. Mr. VITA. You are talking about the presentation of the case in court, sir? Senator SPECTER. Yes, sir. Mr. VITA. I do not know all the issues about the trial and the proceeding. I have never read those. But I am sure the Government would not have gone to court if they thought they did not have a case that they believed they could have won. And I know that that was a collaborative thought between the Senator SPECTER. Well, Mr. Vita, that is just entirely conclusory on your part. You have a letter from Mr. Byerly to the Mr. BYERLY. Yes. Senator SPECTER (continuing]. "Just prior to trial the following: Weaver is a suspect in several eastern Mr. Byerly, did you tell the assistant Mr. BYERLY. I do not know, Senator. Could I have a copy, see your copy of that? Senator SPECTER. Certainly. Mr. BYERLY. Senator? Senator SPECTER. Mr. Byerly? Mr. BYERLY. This memorandum is dated February 28, 1991, and Mr. Weaver was arrested on January 17, 1991, and was released from custody on January 18, 1991. This third paragraph states, "The Assistant United States attorney assigned to this case has informed me he learned from the ATF case agent, just prior to trial." The trial was not anywhere near this date. The time sequence here just does not make sense to me. Senator SPECTER. Well, that is perfectly obvious, Mr. Byerly. The preceding paragraph says, "The U.S. Attorney intends to indict Weaver on March, on 3—12—91." But the question is, aside from the precise time of the trial, whether you, as the ATF case agent, told the assistant Mr. BYERLY. There is a possibility. I do not know. If the assistant Senator SPECTER. You say that you would assume it is correct that you told the assistant Mr. BYERLY. Well, this was not my memorandum. So I do not know— Senator SPECTER. Mr. Byerly, I know that is not your memorandum. It is a pretty important thing if you represent that a man is implicated in bank robberies. It is a highly prejudicial thing to say if you really do not know it to be, factually correct. It is not something you would say lightly and you are saying you do not remember whether you said it? Mr. BYERLY. No, sir. Senator SPECTER. You do not remember whether you said it? Mr. BYERLY. No. That is not what I am saying. I have wanted to clarify myself. Is that if I received some information from someone concerning something that was related to this, I would pass it on to the appropriate person. Senator SPECTER. But did you pass on information that Mr. Weaver was a suspect in several eastern Mr. BYERLY. I do not recall, sir. Senator SPECTER. Mr. Byerly, the original gun charge trial was, I am advised, on February 19, 1991. Mr. Vita, before we digressed several stages ago, the question which was pending to you was on the second part of your assessment of the profile, where you said the guns could not be traced. Now, my question to you is, was there any basis for that statement on your part beyond this bit on pages 5 and 6, saying "Mr. Fadeley: All right, let's make sure of one thing, there is no way, there is no paper, nothing on this shit." "Mr. Weaver: Um [meaning no?]." "Mr. Fadeley: OK, you have got all that covered?" "Um-um-ummm [meaning yes.]" Is there anything beyond that which serves as a basis for your saying that Mr. Weaver matched a profile as a trafficker because the guns could not be traced? Mr. VITA. My recollection, Senator, is that there was another reference in the file that indicates—and it may have been the conversation that occurred that was not recorded—but my recollection is that in that conversation a reference was made by Mr. Weaver that he had a friend that was a gun dealer and that friend would transfer guns to him, off-paper, so that the guns could not be traced. That is my recollection, sir. Senator SPECTER. Well, would you produce that paper and come back tomorrow morning at 10 o'clock and let us see it? Mr. VITA. We will try and find that, sir. Senator SPECTER. Is there anything beyond that supporting your assertion that he had a profile as a gun trafficker? Mr. VITA. Sir, and again, you have to realize that the comments that I made were based on statements that Mr. Weaver made that we never really were able to corroborate. And that those were things that were still ongoing at the time, and that was part of the investigation. Senator SPECTER. Well, what I am looking for, Mr. Vita, is what you heard about what Mr. Weaver said and whether you have documentation for it or not. Mr. VITA. That is it, sir. Senator SPECTER. Do you think that that would constitute sufficient evidence to stand up in a criminal trial as proof beyond a reasonable doubt that Mr. Weaver had a profile as a gun trafficker? Mr. VITA. At the point that we originally got the information and put in that context, it would have led us to believe that that is somebody we should continue to look at and make full determination as to the source of his illegal activity. Senator SPECTER. Well, now, answer my question. Mr. VITA. Based on just the fact that Mr. Weaver sold two sawed-off shotguns to a confidential informant, do I believe that? Senator SPECTER. Based on the totality of what you knew, do you think that there is proof, beyond a reasonable doubt for a criminal trial, that Mr. Weaver had a profile as a gun trafficker? Mr. VITA. I am not sure I understand and I know you are trying to make it as simple as you can for me, Senator. You are putting a situation—you are taking it out of one context and putting it into a trial situation. We would not be charging anybody in Mr. Weaver's situation, with what we had found, as being a major gun trafficker. So there— Senator SPECTER. Well, there is a different standard for proof beyond a reasonable doubt at trial and sufficient predicate to have probable cause to launch an investigation. Mr. VITA. Yes. Senator SPECTER. What I am trying to do is just establish with you what your view is, because from the totality of the circumstances it is a little hard to understand how you can say to this subcommittee, based on all of the particulars you have testified to, that this man has a profile as a gun trafficker. What we are trying to do is to find out what you were doing here. We appropriate a tremendous sum of money for the Alcohol, Tobacco and Firearms Bureau, and a lot of great work is done by your unit under the armed career criminal bill, the statute that I wrote more than a decade ago. See, one of your men is nodding, yes. The last time I looked the figure was in excess of $150 million. Mr. VITA. Yes, sir. Senator SPECTER. But we are trying to figure out what you were doing in I have great respect for what you men do as professional law enforcement officers, 2nd for your unit. We are trying to understand just what you were doing here? What went on to have this man targeted, as it were? Mr. VITA. Our focus to be in He was not our reason for being in Senator SPECTER. But the pursuit was extraordinary. Mr. Byerly writes a letter to the assistant There was an effort as to the man from Mr. VITA. Not that I know of, sir. Senator SPECTER. OK. The one outstanding thread is whether you have a document to support your statement as to something else that Mr. Weaver said. Senator Abraham has a round of questions and he will be with us shortly. [Pause.] Senator SPECTER. While we are waiting, Mr. Vita, my staff gives me a document which I believe purports to be the notes of a meeting with Mr. Weaver on October 11, 1989. This is not on a wire, so it is not a tape recording with that reliability. In the document Mr. Weaver is alleged to have said, "Sure, I've got a friend who has a gun shop, and he sells me anything I want" Mr. VITA. Yes , sir, it is, Senator SPECTER. Senator Abraham Senator ABRAHAM. Mr. BYERLY, I w old like to go to the specific incidents involved in the arrest, which I guess you participated in or were present at, of Mr. Weaver. My focus yesterday in today and in the future is to try to look at what happened and what, if anything, law enforcement official and we who draft legislation, regulations and so on should be trying to think of to avoid things from happening and why they happened I have read in you statement and listened to you earlier when you delivered it outline the effort to sort of create a ruse, as you put it, so that the Weaver car could be stopped and the arrest take place on the highway. And you indicated that it was done so that the children were not accompanying their parents. Was any thought given at all to simply going to Mr. Weaver's horn and simply attempting to arrest him with a warrant at the door? Or was that ruled out? Mr. BYERLY. That was a decision made by me after talking with my supervisor, with the other agents in my office, after we had been—after myself and Agent Gunderson had gone to the Weaver residence in Jun 1990. We realized that this residence was up on the top of a mountain, one way in, one way out. There was really no way to get enough support people up there. Considering the number of kids, considering the isolation, knowing that he did leave the residence, that he did go into town, it was my decision, after talking with these other people, that the safest way to do it would be away from his residence. Senator ABRAHAM. When you say the safest way, did you consider this individual to be abnormally dangerous? Or was it simply the circumstances we saw yesterday in the mockup of the isolation of that cabin? Or was there information about Randy Weaver that caused you and your associates to conclude that there was a dangerous, a more dangerous than normal context that would occur if you sought to arrest him by simply appearing at his home? Mr. BYERLY. Well, Senator, I put a lot of weight into the information that was given to me by Sheriff Whittaker. He had been acquainted with Mr. Weaver for a number of years. He provided information to me concerning Mr. Weaver's kids being proficient in the use of firearms. Sheriff Whittaker told me that neighbors had told him that the kids even sleep with firearms. Sheriff Whittaker was concerned, as I was, that if the children were along and they were in possession of firearms, it would be a dangerous confrontation. And— Senator ABRAHAM. So it was not simply a matter—I am just trying to get a sense of what the—because to me, I mean, it kind of moves ahead from here, of course, to the ultimate incident. And the question—I mean, we can talk about the procedures of the case, and I think that has been fairly effectively discussed here already. I am just wanting to move forward to try to consider why ultimately in this case and then again later the approach to the arrests that were undertaken were ones that were not straightforward and not, you know, an announcement that people were there to make an arrest. I am not sure how normal that is in the ATF because I really have not studied or learned much about the way your organization effects arrests. But yesterday Mr. Weaver, as you probably know, claimed that a straightforward request for his surrender would have produced his surrender. I assume there are two sides to that contention, and I guess I am trying to determine, even before the arrest effort which produced the violence at Ruby Ridge, there was the earlier arrest you were part of, which was not effected by a simple request for a surrender but by this. And I was just trying to determine what basis you had, if any, for concluding that there was, you know, dangerous circumstances. It was the rumors that people in the neighborhood and the sheriff passed on to you and the concerns they expressed. Is that correct? Mr. BYERLY. Yes. It was more than rumors from the neighbors. I had received letters from the next-door neighbor who lived in the house next to Mr. Weaver's, stating that—shooting over their residence, threatening them with firearms. It also goes back to a conversation which occurred January 20, 1987, which was a recorded conversation where there was information wherein the conversation centered around if Federal agents came to the Weaver property, that it would be ambush city, that the Weavers' house was very defensible and defendable. Also, when agent Gunderson and I went there in June 1990, I did observe Sara Weaver with a handgun on her hip and saw Sammy Weaver with a dagger or a hunting knife on his hip. Senator ABRAHAM. Was that then the basis, the children's possible injury or becoming part of the confrontation, that caused you to try to do this in the fashion that you chose? Mr. BYERLY. Well, it was for their safety and for the agents' safety also. Senator ABRAHAM. I am trying to give you an opportunity here to sort of lay this out, because I think that, as I say, yesterday what we heard was—and I realize it pertained to the ultimate Ruby Ridge incident. We heard the assertion by Mr. Weaver that he would have submitted himself or surrendered himself to a clear, straightforward approach. He specifically referred to Sheriff Whittaker, in fact, and said if he had come up there, he would have, you know, gone with him. I am trying to find what the basis would be for not doing that if, in fact—because it seems to me there are two possibilities here. Either, one, there was no way to have avoided bloodshed because there could not have been a peaceful resolution of the issue, short of the total withdrawal of the marshals or their decision never to go forward and arrest him. Or there could have been a peaceful resolution other than that, which he says there would have been. And I am trying to find out if there is a case to be made for the approaches that were taken based on either information or whatever. You have answered part of it. I may in written form ask for all of this information, because I think one of the key ultimate questions we have to answer is: What basis was there for the kinds of approaches that were made? Mr. BYERLY. Senator, if I could answer that, I think I can be a little more clear on that. I told you that I had received information from Sheriff Whittaker and from other people from the Boundary County Sheriff's Department. Sheriff Whittaker was with us during the execution of this arrest warrant. There was input from Sheriff Whittaker as to the method of arrest. So Sheriff Whittaker definitely proposed to us that the safest way was not to go up there in his uniform or for us to go up there. It was to get him away from the house, away from the kids, for everybody's safety. Senator ABRAHAM. OK. When the arrest that you were part of took place, what is your recollection of how Mrs. Weaver was treated or how she behaved? Mr. BYERLY. I was inside—the vehicle was a pickup camper. Sheriff Whittaker, myself, and a couple of other agents were inside the camper. A male agent and a female agent had the hood raised. They were under the hood. I saw the Weaver vehicle approach the bridge. I saw it stop. I saw both Mr. and Mrs. Weaver coming across the bridge. I lost sight of them. There was some conversation from both the ATF agents with—it sounded like Mr. Weaver. A signal was given. I exited the pickup camper. My function, after I exited, was to assist the female agent subdue Mrs. Weaver. As I exited the vehicle, I saw Mrs. Weaver going back across the bridge. I took a couple of steps. The female agent had Mrs. Weaver, and they were going down on the roadway, which was covered with snow. I do not know if she slipped Mrs. Weaver slipped or if she was pushed to the ground. By the rime I got over to Mrs. Weaver, the female agent had p laced handcuffs on her. I assisted the female agent in picking up Mrs. Weaver. A short time thereafter, the handcuffs were removed from Mrs. Weaver after the female agent checked her for any firearms. Senator ABRAHAM. You say in your report she was carrying a weapon—or she was not carrying a weapon, correct? It was in a purse that was in the vehicle. Mr. BYERLY. That is correct. It was a loaded .38 revolver in her purse in the flatbed truck. It was the responsibility of the other male agent underneath the hood, with Sheriff Whittaker and the two other ATF agents, to subdue Mr. Weaver. Senator ABRAHAM. You say Mrs. Weaver was trying to run away from the scene, is that correct, when she was subdued? Mr. BYERLY. Correct. Senator ABRAHAM. It is Mr. Weaver's testimony yesterday that she was, in fact, thrown to the ground with her face pushed into the snow. Do you not know whether that is the case? Is that something you just were not able to observer or is that— Mr. BYERLY. She, Mrs. Weaver, was on her stomach by the time I got there. She was face down. There was snow on the roadway. After I picked her up, there was not snow on her face, but her face could have hit the snow-covered road. I do not know that, but I know she did not have snow on her face. Senator ABRAHAM. Would you say that the handling of her in this situation was normal procedure in terms of an arrest situation? Mr. BYERLY. Yes. Senator ABRAHAM. All right. Thank you. Senator SPECTER. Thank you very much, Senator Abraham. Senator Grassley represents that he has one question. It will take a yes or no answer, you say, Senator Grassley? Senator GRASSLEY. I would not say it takes a yes or no answer, but it is one question, and it should not take very long. About 3 or 4 hours ago, as you remember, one of the things that I asked you was about why others were not arrested. You said that there were no others arrested for selling firearms to your informant. You said that they were not arrested because you did not want the informant's cover blown. But the cover was blown later, anyway, so then a natural followup question is: Why weren't the others arrested after the cover was blown? Mr. BYERLY. The sale of the illegal firearm was November 5, Mr. VITA. Senator, I also think that there is a possibility that it was beyond the statute of limitations. If it was a tax matter and the violation occurred in 1986, the statute may have tolled by the time the informant's cover was blown. Senator GRASSIJEY. Well, I will leave it to a person like you, Mr. Chairman, to make a judgment of whether or not that would be a judgment that prosecutors and law enforcement people ought to make. But it seems to me that the excuse given or the arrest of Randy Weaver and not the arrest for others that did exactly the same thing is kind of a situation that fits a pattern here of things that affected Randy Weaver that never affected—of selective law enforcement that ought to be applied generally and was not in his particular case. Senator SPECTER. Senator Grassley, you have been necessarily occupied with other Senate business, but there have been a number of questions raised during the course of this hearing as to why the Alcohol, Tobacco and Firearms unit responded as it did to Mr. Weaver. Senator GRASSLEY. OK. Thank you for your time. Senator SPECTER. That concludes the hearing. It is now 7:03. We will begin tomorrow morning at 10 a.m. Thank you very much, gentlemen. [Whereupon, at 7:03 p.m., the subcommittee adjourned, to reconvene at 10 a.m., Friday, September 8, 1995.] |