N. Alleged Problems With the Participation of the FBI in Case Preparation and Its Relationship With Other Members of the Trial Preparation Team

1. Introduction

One of the issues that arose as the various law enforcement entities converges at Ruby Ridge was which agency had the primary responsibility for planning, organizing and coordinating the activities of law enforcement personnel. It was decided early in the crisis that the FBI would have the lead role in the operations at Ruby Ridge. However, after Weaver and Harris surrendered, the focus shifted from crisis resolution to trials preparation and the U.S. Attorney's Office in Boise ("USAO") assumed the lead role. Initially, the FBI believed that it was to be the sole agency assisting the USAO in trial preparation. Later, for reasons that the USAO and the FBI dispute, agents from the U.S. Marshals Service and the Bureau of Alcohol, Tobacco and Firearms ("BATF") were assigned by their respective agencies to assist the USAO.

The FBI believed that the addition of these agents was unnecessary, improper and was accomplished in a less than forthright manner by the USAO. The arrival of the marshals and the BATF agents coupled with disagreements over how witness interviews in Iowa were to be conducted worsened the already fragile working relationship between the FBI and the USAO. Thereafter, various actions and attitudes of the investigative team created significant discord between the FBI and the other team members. In addition, the USAO alleges that their efforts to prepare their case for trial were also hampered by the failure of officials at FBI Headquarters to make themselves available for interviews.

2. Statement of Facts

a. Defining the Structure of the Trial Team and the Role and Responsibilities of the Individual Members

(1) The Lead Agency Concept and the Initial Disagreement Regarding the Interviewing of Witnesses in Iowa

As the various law enforcement agencies arrived at Ruby Ridge on August 21 and August 22, 1992, it quickly became evident that there was a need for one agency to assume the leadership role during the crisis. Because the assault of a federal officer charge fell within the jurisdiction of the FBI, it was decided that it was appropriate for the FBI to perform this role. Once the crisis was over, and the focus had shifted to trial preparation, Assistant U.S. Attorney Howen believed that the leadership role was transferred from the FBI to the USAO. [FN1393] Although Howen and Assistant U.S. Attorney Lindquist would entertain suggestions from the FBI, they viewed themselves as the "captains' responsible for directing case preparation and any additional investigative activities that were necessary. [FN1394]

From the outset, tensions existed between the FBI and the USAO. A number of early incidents intensified the growing animosity between the two government entities. One of these incidents centered around the request of the USAO to transport the birthing shed on the Weaver property from Ruby Ridge to Boise. The USAO argued that it was important to have the shed accessible to permit the testing and use of the shed at trial. [FN1395] The FBI disagreed and maintained that the shed was not necessary and that the transportation and storage costs were too high. The FBI ultimately agreed to transport the shed to Boise. Later, when it became apparent that the USAO would not be using the shed, the FBI questioned whether the initial request to transport the shed had been well considered. [FN1395]

Another issue that created controversy concerned the conducting of witness interviews in Iowa. Howen had informed the FBI case agents that to support the conspiracy theory it was important to interview witnesses in Iowa who knew Weaver before he moved to Idaho. Howen and Lindquist wanted one of the case agents to conduct these interviews since they believed that they best understood the facts and nuances of the case. [FN1397]

[FN1398] However, the FBI informed the USAO that a case agent could be sent to handle an important interview or a followup interview. [FN1399]

At a September 28, 1992 meeting, Special Agents Venkus and Rampton advised Howen that they were going to send out leads to Iowa. According to Venkus, Howen expressed no opposition to this plan. [FN1400] On the next day, Howen gave Venkus a list of witnessesb for the FBI to interview [FN1401] and noted on the list that he wanted "clean 302s." [FN1402] Soon after Venkus sent out the leads, Howen told him that he had misunderstood his instructions and that he had just wanted to have the addresses of the prospective witnesses updated. [FN1403]

Ellsworth protested this action to Special Agent in Charge Eugene Glenn and argued that the agents had only been instructed to conduct "background leads" which consisted of identifying
individuals and places of residence. [FN1404] Howen, who did not recall instructing Rampton to send out the leads, explained to Rampton that he did not want the leads conducting the interviews because of the animosity existing between the people being interviewed -- many of whom were friends or supporters of the Weavers -- and the FBI because he wanted to avoid creating a paper trail of FD-302's which would reveal his case preparation strategy to the defense. He told Rampton that if the FBI were going to conduct the interviews, he wanted the case agents who were familiar with the case to handle it. [FN1405] Lindquist instructed Dillon to stop all of these interviews and that if he failed to do so, the interviews would have to be redone. [FN1406]

At some point during this time period, Howen informed Rampton that he wanted to participate in the Iowa interviews and that he would not have to generate interview reports. [FN1407] Rampton told Howen that Iowa FBI agents would be conducting these interviews. One week later, Lindquist informed Rampton that the Marshals Service had offered them two marshals to assist with the case and that they had accepted the offer. [FN1408]

A third dispute between the USAO and the FBI involved [G.J.] Lindquist explained that it was an essential part of the government's case to show what had occurred at Ruby Ridge on August 22 as well as on August 21. Part of this proof consisted of  [Garrity]

[FN1418] Howen viewed this incident as the "defining moment" when the working relationship between the USAO and the FBI on the Weaver case "was over." [FN1419]

(2) The Decision to Assign Members of the Marshals Service and BATF to Assist in Case Preparation

In late October 1992, Deputy Marshals Robert Masaitis and John Stafford were assigned to assist the USAO in the preparation of the Weaver case for trial. At around the same time, BATF also assigned two special agents -- Herbert Byerly and Jane Hefner [FN1420]-- to assist the USAO. Various accounts were provided to investigators as to who was responsible for assigning the marshals to assist in the preparation of the case. Some individuals, including FBI members, believe that the U.S. Attorney or someone in that office had made the request [FN1421] while others insist that Director Henry Hudson volunteered the services of the marshals. Hudson told us that he assigned the marshals to the case sometime in October 1992 after he had a telephone discussion with Ellsworth during which Ellsworth complained about the FBI. [FN1422] However, according to Ellsworth and Howen, Hudson offered the assistance of the marshals and they accepted the offer. [FN1423] Lindquist remembers the incident differently and believes that he first presented the proposal to Tony Perez and that the final acceptance of his proposal occurred during an October 1992 meeting with Hudson. [FN1424]

In addition to who precipitated the inclusion of the Marshals Service and the BATF in the case of preparation, was the issue of why it was necessary to include them. The perception among some was that the USAO was unhappy with the performance and attitude of the FBI including their refusal to have case agents cover leads [FN1425] and their failure to accomplish the tasks assigned them. [FN1426] Howen insisted that the decision to bring the marshals into the case had nothing to do with any disagreement with the FBI but rather was because the USAO needed the help. [FN1427] Ellsworth, who maintained that he had always envisioned the BATF and the Marshals Service as having a role in the Weaver case, agreed that the decision was influenced by the need for more assistance in preparing the case. He was also concerned that the FBI decision to send leads to conduct out of state interviews indicated that they were not devoting enough resources to the matter. He was particularly concerned because the agents, in contrast to the marshals, were not based in Boise but rather hundreds of miles away in Northern Idaho. Furthermore, the availability of Venkus was potentially threatened by the demands created by the illness of his mother.[FN1428] Lindquist stated that in addition to needing more help, [FN1429] the presence of the marshals and the BATF agents demonstrated to the jury a united effort by the government.[FN1430] Rampton disagreed that the USAO needed the help and maintained that there was insufficient work for all of these agents. [FN1431]

The FBI was also displeased by the failure of the USAO to consult with them and to inform them of the decision until after the agents had begun working in Boise. Ellsworth could not recall how the FBI was informed about the addition of the marshals. He argued that the marshals were always a part of the case and, indeed, their involvement had preceded that of the FBI. He believed that the only change was that two marshals were being brought in to substitute for Cooper and Hunt who had an obvious conflict since they were witnesses to the events at issue. [FN1432] Howen did not have a clear recollection of how he informed Venkus and Rampton but suspected it was about the same time that he told them that they were going to be working together as a team with the USAO as the chief decision maker. [FN1433] Lindquist believes that he told Venkus and Rampton that he had asked the Marshals Service about providing marshals to assist in the case preparation and that they were being made available. [FN1434]

When Rampton first learned that the marshals would be working on the case he expressed his concern to Lindquist. According to Rampton, Lindquist responded that the decision had already been made and that it was not a Bureau decision. Later Rampton learned that the marshals had been in Boise for a week and had been conferring with the Howen and Lindquist at the time that he first learned that they would be working on the case. [FN1435] Dillon said that when he called Lindquist and voiced his displeasure, Lindquist responded that he did not have to tell Dillon anything and that "you guys can't work with anyone." [FN1436] Thereafter, Glenn sent Ellsworth a letter protesting the bringing in of the marshals to which Ellsworth responded. [FN1437] Rampton stated that BATF Agent Byerly was also brought into the investigation without the knowledge of the FBI. [FN1438]

With the addition of the marshals and BATF agents to the team, issues also arose as to what tasks these agents would be performing and to whom they would be reporting. Some in the FBI initially understood that these agents would be assisting in case preparation but would not be conducting any investigatory activities. [FN1439] According to Hudson, Ellsworth told him that he wanted the deputy marshals to participate in conducting the investigation. Hudson expressed reservations about this plan because he did not believe that any statutory authority existed for this role and he was concerned that Ellsworth might use the deputy marshals as leverage against the FBI. To guard against such a result, Hudson had Duke Smith work out the details with Mike Dillon with the understanding that the marshals were to support the FBI but receive their instructions from the USAO. [FN1440] Deputy Marshal Stafford had a somewhat different understanding. He believed that his responsibilities would include conducting interviews, locating witnesses and preparing backgrounds of the defendants. [FN1441] Rampton said that Lindquist told him that the marshals would do whatever came up in the investigation. [FN1442] Ellsworth agreed with this statement and acknowledged that he had initially envisioned that the marshals might be conducting interviews. [FN1443]

The FBI officials always considered the Bureau to be the lead investigative agency. Accordingly, it believed that the other agents would report to and through them. For example, it was Rampton's initial understanding that the Marshals Service had assured Dillon that the marshals would be assigned to the FBI. Rampton said this plan was never followed. [FN1444] Dillon told Venkus that FBI Headquarters had confirmed that the marshals were to report to the FBI and were not to conduct any investigation or interviews without the approval and knowledge of the FBI. [FN1443] When the FBI realized that the USAO was adamant that the FBI would not be the lead agency and that the other agents would not report through it, the FBI was outraged and responded that it was "their investigation" and that "they would proceed as they deemed necessary." [FN1446]

Chief Deputy Marshal Ronald Evans originally understood that Masaitis and Stafford would be assisting FBI case agents Venkus and Rampton. [FN1447] However, Hudson stated that while the marshals would be assisting the efforts of the FBI he intended that they would receive their orders from the USAO. [FN1448] Stafford was told by his superiors that he would be working as a team member with the FBI as opposed to working for the FBI. [FN1449] Similarly, Masaitis was told that he was being assigned to assist the USAO and was never told that he would be working under FBI direction. [FN1450]

Howen and Lindquist always intended the agents to work on teams as equal partners and to report directly to them not through the FBI. [FN1451] The plan was for each of the agencies to be responsible for three counts of the indictment as well as some of the overt acts of the conspiracy. [FN1452] Howen anticipated that the Marshals Service and the BATF agents would assist in case preparation as well as perform some investigatory tasks. [FN1453] However, Howen stated that the FBI resisted this approach and wanted to be a "buffer" between the USAO and the other agencies. [FN1454] Ellsworth did not have a clear recollection on this issue but thought that there may have been an initial understanding that the FBI case agents would be the intermediary between the USAO and the marshals. [FN1455]

The FBI also questioned the jurisdictional authority of the Marshals Service to be investigating certain counts of the indictment. Glenn maintained that the FBI had primary jurisdiction over all counts in the indictment because the assault on a federal officer charges were the main offenses alleged in the indictment and the other charges were "lesser included offenses." In this regard, Glenn argued that "[t]he FBI has always retained primary jurisdiction when other crimes have arisen out of a substantive violation over which the FBI has jurisdiction" and that [i]t would not be cost effective to include numerous agencies whenever an investigation results in lesser included offenses." [FN1456] Ellsworth noted in his response to Glenn that he was correct that the FBI had primary investigative jurisdiction over the federal officer assault count but reminded Glenn that the FBI did not have exclusive jurisdiction over all counts in the indictment. Ellsworth accused Glenn of being myopic when he advocated that the FBI had exclusive jurisdiction since the other agencies had a vested interest in the case and should be permitted to participate "on the same footing as the Bureau.' [FN1457]

(3) The First Team Meeting

Howen and Lindquist convened the first team meeting in Post Falls, Idaho on October 30, 1992. [FN1458] The parties memories differ somewhat as to the tone of this first meeting and what was discussed. Howen and BATF Agent Byerly recalled it as an organizational meeting where the team approach was discussed and responsibilities were assigned for the various counts of the indictment and the overt acts of the conspiracy. [FN1459] Byerly thought that all participants were enthusiastic at this first meeting. [FN1460] Deputy Marshal Stafford had a different impression. He recalled FBI agents Venkus and Rampton as being "very formal and chilly." [FN1461] Deputy Marshal Masaitis sensed that Rampton and Venkus were unhappy about the Marshals Service being involved in the case. [FN1462] Venkus told investigators that it was not until he arrived at the meeting that he realized that BATF Agent Byerly would also be assisting in the case preparation. [FN1463]

Among the topics discussed at the first meeting were the organization of the case preparation effort and the responsibilities of the individual team members. Howen and Lindquist informed the agents that each agency would be responsible for three counts of the indictment and for some of the overt acts alleged in the conspiracy. The BATF was responsible for the original gun charges; the Marshals Service was responsible for the failure to appear charge; and the FBI was responsible for the assault of a federal officer charge. The agents were to work in teams and to report to Howen or Lindquist. [FN1464]

Another subject discussed was the conducting of interviews in Iowa. Rampton recalled that Howen indicated the need to do additional interviews in order to develop information that could be presented to the grand jury. Rampton interpreted these comments as a request and sent a teletype asking that leads be sent.

b. Specific Problems in Case Preparation Interviews Conducted by the Marshals Service and BATF Agents

During the pretrial period, members of the investigative team had several discussions concerning the conducting of out of state interviews and whether these interviews should be documented. Lindquist recalled Howen expressing concern that if these interviews were documented that they would have to be produced under the open discovery policy and such a disclosure would alert the defense to the manner in which the prosecution was preparing its case. According to Lindquist, Howen then asked the FBI case agents if they could conduct an inquiry without generating a report and then review the substance of the interview with him to determine if any exculpatory or otherwise discoverable information had been learned. Lindquist understood that if such information had been discovered Howen intended to have a report written and to produce the information to the defense. Lindquist recalled that Rampton and Venkus stated that such an approach was "probably" not a bad idea but that Bureau policy required them to generate a 302. At that point, Stafford and Masaitis stated that they were not mandated to create such forms and would be able to proceed as Howen had proposed. [FN1465] Lindquist had no problem with the approach because he was convinced of Howen's integrity and knew that if any Brady material were uncovered that Howen would produce it. [FN1466]

At some point, Masaitis remembered that after FBI agents had conducted some interviews in Iowa and obtained negative results, the USAO suggested that Stafford interview these witnesses again. The FBI opposed the suggestion. [FN1467] Stafford suggested at the team meeting that he "conduct [the] investigation like cases [he] had worked as a pre trial investigative arm of the United States Attorney's Office in the past." Stafford said he tried "to prepare witnesses to talk to the U.S. Attorney prior to trial and not write reports on it.~ According to Stafford, it is the normal practice of the U.S. Marshal`Marshal's Service when "doing a case" to document interviews and information acquired for lead purposes. However, if they are assisting the U.S. Attorney's Office in preparing a case for trial or the grand jury, that form is not used. [FN1468] Stafford claimed that Howen and Lindquist reacted favorably to this suggestion. [FN1469] He does not recall them stating that it would be "a good idea not to produce paper." [FN1470]

Venkus recalled that in one team meeting Stafford told the participants that he could conduct an interview without creating discoverable documentation. In response, Venkus advised Stafford that this was contrary to FBI policy and that he disagreed with the suggestion. Venkus thought that Stafford prided himself on not having to create paper like the FBI. fn 1471

Rampton thought that the documentation issue was first raised by Howen and Lindquist. He stated that they wanted investigation done, especially in Iowa, and that they did not want any interview documentation created so as to avoid having to produce it in discovery. Because of the FBI's practice of documenting all interviews with a 302, Rampton stated that Howen and Lindquist decided that the marshals would do the Iowa interview since they had "volunteered" not to produce paper on the interview. Rampton expressed concern about this plan to Dillon, as well as to Howen and Lindquist. Thereafter, Howen and Lindquist qualified their instructions to the FBI and said that they should continue to document their interviews as they had in the past. [FN1472] Rampton had suggested tot Howen that FBI agents in Iowa do the interviews and then, if necessary, Howen, who wanted to participate in the interviews, could do a followup. According to Rampton, Howen and Lindquist wanted the marshals to do the Iowa interviews and Rampton disagreed, stating that those interviews were an FBI function. [FN1473]

Howen stated that when it became apparent to him that the FBI would not allow its case agents to conduct the out of state interviews, he thought that perhaps the marshals could do it. He then asked Stafford if he could conduct the interviews and whether he was required to prepare written documentation. Stafford told Howen that he could conduct the interviews and that he was not required to document it. [FN1474] Thereafter, Howen had the marshals and the BATF agent serve subpoenas and conduct witness interviews.

Stafford said that Howen and Lindquist asked him to serve approximately 100 subpoenas and to conduct interviews of individuals in Iowa, Northern Idaho, Oregon, Spokane, Washington and Denver, Colorado. [FN1475] Most of these interviews were conducted in Iowa. Stafford thought that the FBI did not want to participate in these interviews because they had other things to do. However, he did not know whether the FBI agents had ever been asked to conduct the interviews. [FN1476] He did believe that the FBI agents knew what he would be doing since before he left to conduct the Iowa interviews he informed Mike Dillon about his anticipated activities. [FN1477]

While serving subpoenas, Stafford said he would conduct interview of those individuals being served. One such interview was of Howard Brashure in Iowa who was developed as an informant/witness. [FN1478] Stafford explained that because this was a high profile case, identifying information about the witness was not placed on the subpoena but rather on a separate sheet of paper attached to the subpoena. [FN1479] Stafford wrote down on this sheet any information that he received during the interview that he judged to be important as well as providing his impression of the person as a witness. Thereafter, he mailed the sheets back to the U.S. Attorney's Office. Stafford did not know whether any of these sheets were ever produced to the defense although he said he was not aware of any exculpatory material not being turned over to the defense. [FN1480] A review of the discovery records in the Weaver case revealed that other than the cryptic notes on some of the subpoena cover sheets, Stafford did not document these interviews and that these sheets were not produced in discovery.

Howen said that Stafford knew whom to interview based on the subpoenas that were given to him. According to Howen, the goal was to ask questions that would determine whether a person should or should not be a witness. [FN1481] Howen told investigators that he did not instruct Stafford to as specific questions of the subpoenaed parties but rather informed him of general subject areas that were important to case development. These areas included: the Weavers' activities primarily during the 1983-85 time period; any information about Weaver's alleged plan to build a 300 yard kill zone; and identifying any other witnesses who might be helpful and Howen might want to interview personally. [FN1482] When Stafford returned from serving the subpoenas he would brief Howen on the information that he had learned. [FN1483] Howen insisted that he never instructed Stafford no to create documentation but rather used Stafford because he understood that it was the policy of the Marshals Service not to create documentation for this type of interview. fn 1484 Howen never discussed with Stafford what constituted exculpatory information nor did Stafford ever raise the issue. Howen assumed that Stafford understood the nature of exculpatory information based upon his experience in the Marshals Service. Howen never remembered Stafford conveying to him any exculpatory information from the interviews conducted in Iowa. [FN1485]

Lindquist stated that Howen was primarily responsible for giving Stafford any instructions regarding the serving of the subpoenas and the interview questions to be asked. [FN1486] To the extent that Lindquist gave Stafford instructions, they were general in nature and intended to obtain information that would reveal the type of person that Weaver was. [FN1487] Lindquist did not recall any specific instructions given concerning the documentation of these interviews although he assumed that the documentation issue had been resolved at the earlier meeting. [FN1488] It was not until before trial that Lindquist learned who had been interviewed in Iowa. [FN1489]

BATF Agent Byerly did not conduct any interviews in Iowa. [FN1490] However, he did participate with Stafford, BATF Agent Gunderson, Deputy Marshal Hunt and Sheriff Whittaker in serving subpoenas on 20-40 people in Northern Idaho [FN1491] who were neighbors of the Weavers and in conducting "related interviews." [FN1492] Byerly could not recall Howen or Lindquist requesting them to conduct interviews without documenting them. [FN1493] With regard to the interviews that Byerly conducted, he told investigators that he told the witness "to tell the truth and cooperate with both the prosecution and the defense." [FN1494] Of the conversations that he had with witnesses, Byerly said he prepared approximately five or six interview reports. His criterion for whether an interview report was necessary was whether the new information would help the prosecution or the defense. [FN1495]

Masaitis did not conduct any interviews in Iowa but did conduct several interviews while assisting the USAO. Because none of these interviews produced any positive information, Masaitis did not document them. Masaitis said it is his practice to only document an interview if significant information is developed. He denied that the USAO ever instructed him not to document the interviews. [FN1496] Masaitis never considered his actions "as conducting investigation." [FN1497]

Rampton and Venkus said that they were never informed about when the Iowa interviews were conducted or about the results of these interviews. Indeed, it was not until later that the FBI case agents learned of them. [FN1498] Glenn did not learn about these interviews until after the trial when the case agents told him that some of these interviews had been conducted without their knowledge. [FN1499] Rampton said that the Iowa interviews were done primarily to support the conspiracy count but also developed information to support other counts. [FN1500] He did not know whether these interviews produced any exculpatory information. [FN1501]

There is no record of what the Iowa witnesses told Stafford. Howen insisted that if these interviews had produced exculpatory information he would have produced it to the defense. [FN1502] To the extent that he was informed of the information, Lindquist never learned of any Brady information being disclosed in these interviews. [FN1503] Although Venkus did not know the specifics of what Stafford had learned in the interviews, he suspected that some of it was of significance. For example, he recalled hearing Stafford discussing "voluminous" information that a witness had given him about the John Todd tapes and the concept of "Illuminating." Venkus believed that Stafford viewed the Todd tapes as a critical link in the proof required to show the origins of Weaver's alleged conspiracy. [FN1504]

(2) Acoustical Test

The marshals involved in the August 21, 1992 shooting at Ruby Ridge reported receiving a hundred or more incoming rounds. However, investigators recovered far fewer bulled casings. Some theorized that echoes may have caused it to sound as if more rounds had been fired. Another important issues in the case was who fired the first shot. Deputy Marshal Norris had reported hearing a shot that sounded like it came from the type of gun that Roderick and Degan were carrying. This conflicted with Cooper's version of events which was that Harris had fired the first shot. Thereafter, the USAO and members of the investigative team discussed the need to conduct an acoustical test to explain these arguably conflicting findings. [FN1505]

Lindquist believed that he first identified the need to consider whether an acoustical test should be conducted. [FN1506] He recalled discussing the issue and that he and Rampton took some steps to determine if there was an expert at the FBI that would address the issue. At some point, Lindquist recalled discussing the issue with someone and the FBI laboratory. He remembered that this individual thought that it would be difficult to control the environment sufficiently so as to be confident that the were duplicating the acoustical reality as it existed on August 21, 1992. [FN1507] Lindquist recalled that he was not completely satisfied with the response given by the individual from the FBI lab and had the impression that the individual had not given adequate consideration to his questions. Soon thereafter, Lindquist spoke with a federal prosecutor in Los Angeles who confirmed that it was difficult to control all of the factors so as to be comfortable with the accuracy of an acoustical test. [FN1508] Thereafter, Lindquist suggested to a team member that when they accompanied Lucian Haag to Ruby Ridge to work on the shooting reconstruction that they might want to fire a few rounds to see what they heard. Thereafter, he understood that this was done and that those present could reach no conclusions as to the effect of echoes or whether it was possible to distinguish the weapons being fired. fn 1509

Rampton confirmed that on approximately October 21, 1992, he had discussed with Lindquist the need to have and acoustical test conducted to determine what echoes or reverberations were caused by the firing of weapons like those involved in the August 21st shootings. Thereafter, Rampton communicated with the FBI Laboratory about having the test conducted. [FN1510] Following this initial contact, Rampton and Lindquist had several phone conversations with Supervisory Special Agent Bruce Koenig who was assigned to the FBI's Engineering Research Facility in Quantico, Virginia, about the feasibility of conducting an acoustical analysis of the gunshots fired at the top of the mountain at Ruby Ridge. Koenig understood that the Assistant U.S. Attorney with whom he spoke was anxious to determine if echoes could have accounted for the difference between the number of shots heard by the marshals and the number of casings found. He told the attorney that certain structures such as cliffs would cause echoes and recommended positioning listeners at the various locations where the marshals reported being and then firing multiple shots in various directions and from various locations to listen to the effect. Koenig told the attorney that he was willing to travel to Ruby Ridge and conduct the test firings. Indeed, arrangements were made for Koenig and his team to fly to Idaho but at the last minute either Rampton or the attorney contacted him and told him that the trip was unnecessary because they had conducted the tests and no echoes were heard. [FN1511]

Masaitis recalled learning that the FBI had expressed some resistance to conducting the test. The other team members then explored the option of hiring an expert to conduct the test but learned that this option would be too costly. At that point, they decided to conduct their own informal experiment. [FN1512]

At the end of October, Howen, Stafford, Masaitis, Hunt and Bruce Whittaker from the Boundary County Sheriff Department travelled to Ruby Ridge to participate in an acoustical test which consisted of firing weapons similar to those belonging to the marshals involved in the August 21st shooting. Stafford believes that Venkus and Rampton were asked to accompany the group but did not do so. [FN1513] Once everyone assumed their positions, Masaitis fired some rounds from the rock outcropping adjacent to the Weaver house while Hunt was down by the & areas. fn 1514 Shots were also fired from the & and the area where Sammy started his retreat back to the cabin. [FN1515] Howen could not recall if the marshals present made any comments about how the shots sounded. [FN1516] Although Masaitis could not hear echoes because he was firing the gun, he recalled that someone had stated that they had heard echoes. [FN1517] All parties involved in this test stated that no record, either audio or written, was produced. [FN1518]

At the initial team meeting on October 30, 1992, Lindquist announced that the test had been completed and that the FBI laboratory did not need to conduct the examination.[FN1519] He was not aware that at the time Rampton was still in the process of locating an FBI expert to conduct an acoustical test. [FN1520] Rampton, who was informed of this acoustical experiment after it had been completed, was surprised by the unscientific methodology used. [FN1521] Howen explained that he decided not to pursue an expert opinion since he questioned whether an expert would be able to provide an accurate opinion since any test that he would conduct would be after the leaves had fallen from the deciduous trees thus rendering the conditions different from those present at Ruby Ridge on August 21, 1992. [FN1522]

The USAO never informed defense counsel about this experiment. [FN1523] Lindquist explained that he did not think this rudimentary experiment, which used neither an expert or equipment, constituted the type of activity that was required to be disclosed under Fed. R. Crim. P. 16. He characterized their activities as "preliminary" to see if a formal test might be warranted. [FN1524] Howen agreed this was not a test and was something that anyone, including the defense, could have conducted. [FN1525]

(3) Cooperation and Trust Among Trial Team Members

(i) Historical Problems in the Working Relationship Between the USAO and the FBI

Almost everyone questioned about the subject agreed that the USAO and FBI experienced numerous problems in their working relationship during the Weaver prosecution. However, these problems did not originate with the Weaver matter but rather appear to have been developing over a number of years. Indeed, many individuals in the USAO and the FBI agreed that the two agencies had a history of a poor relationship which deteriorated further in the Weaver matter.

From the FBI perspective, Supervisory Special Agent Dillon felt that there were numerous incidents which contributed to the problems. He stated that one factor was Howen's personality which because noticeably hostile to the FBI after the prosecution of Randy Baldwin. [FN1526] Dillon characterized Howen's personality after the Baldwin case as being "very pompous and condescending." Problems between Howen and the Fbi continued when the two offices strongly disagreed over whether a local sheriff from Shoshone County should be prosecuted for public corruption. The FBI ultimately presented the case to the Department of Justice for consideration. Thereafter, the Public Integrity Section of the Criminal Division of the Department of Justice prosecuted the matter -- the first trial ended in a hung jury while the second trial ended with an acquittal. According to Dillon, Howen and Ellsworth were extremely upset over the handling of that case. [FN1527] Dillon told investigators that one major criticism that he and others had about Howen was that he would discuss and issue with the FBI or give an instruction to the FBI and then later forget the discussion or having given the instruction. Howen would then portray the FBI action as being contrary to his wishes. Dillon gave as an example a 1990 case involving the arrest of Aryan Nation members with the arrest scenario proposed by the FBI. According to Dillon, Howen repeatedly complained "who was working for who" [FN1528]

Special Agent in Charge Glenn reported that the relationship between the USAO and the FBI had been strained for "some time" and "seemed to deteriorate" further with the Weaver prosecution. as examples of prior disagreements between the two offices he pointed to several cases in which the USAO had concluded that a case lacked prosecutive merit but subsequent review by the Department of Justice had concluded otherwise. [FN1529]

U.S. Attorney Ellsworth agreed that the relationship between the USAO and Glenn and Dillon had not been the best. He attributed this problem in part to the case involving the Shoshone County Sheriff. Although the two offices managed to work together on matters, Ellsworth stated that the relationship was one characterized "by pleasantries and ... cordiality at a very superficial surface level ... but one where we never really ... were able to ... deal with hard issues. [FN1530] Lindquist was the only member of the USAO and the FBI who stated that there was not a history of problems between the USAO and the FBI. Lindquist insisted that the Weaver case was an anomaly and that before and after the Weaver case he has had a "marvelous relationship" with the FBI. [FN1531] To the extent there existed any bad blood" between the FBI and the USAO he characterized it as "bad blood" between Ellsworth and Dillon who did not get along. [FN1532] this statement seems inconsistent with the statements of other individuals interviewed including Special Agent Wayne F. Manis who provided a 13-page chronology of a problem that he had with Lindquist which indicated Lindquist's knowledge of the animosity between the USAO, especially USA Ellsworth, and Dillon and Glenn that had occurred over the handling of the prosecution of the Shoshone County Sheriff. [FN1533]

Officials at FBI headquarters were aware that there were problems in the working relationship between the USAO and the local and district offices of the FBI. This knowledge was based largely on the controversy over the public corruption case involving the Shoshone County Sheriff. [GARRITY] [FN1534] Other than this incident, we found no indication that FBI Headquarters had intervened.

(ii) Problems in the Working Relationship Among Team Members

From the moment that the USAO and the FBI began working on the Weaver case problems surfaced in their historical hostilities. Much of the difficulty can be traced to their negative perceptions that each agency had developed from working together on prior matters. The USAO found the FBI to be very inflexible and inextricably attached to the idea of being the lead agency and exercising total control over any investigative task in the case. In addition, the prosecutors were critical of the unwillingness of the FBI to become a "team player." Howen noted a significant difference between the attitude of members of the Marshals Service and members of the FBI. He found the former to be open, flexible and willing to assist with case preparation in any way that they wee needed while he found the FBI to be uncooperative and unwilling to volunteer information. [FN1535] Similarly, Lindquist characterized the Marshals Service and BATF as "very open, very cooperative, very accessible" in contrast to the FBI which he characterized as a "brick wall." [FN1536] Ellsworth attributed part of the difficulties between the USAO and the FBI to the FBI mentality that "the FBI way is always right." [FN1537] The FBI case agents found the USAO to be very controlling and unwilling to include them in the case preparation process. In addition, the FBI criticized the prosecutors for being to autocratic, abrasive and confrontational.

While preparing the case for trial, there were a number of incidents that contributed to the negative perception that each agency had of the other. For example, early in the case, Lindquist learned that the FBI had issued a directive to the case agents that they were only to take instructions from Ellsworth. This directive also required Howen to transmit in writing to the agents any leads or investigative requests that he wanted pursued. Apparently this directive was the result of several incidents including the inclusion of the marshals on the trial team and the miscommunication concerning the sending of leads to Iowa. Lindquist and Ellsworth were very angered by this directive and contacted the Terrorism and violent Crime Section of the Department of Justice. Lindquist believed that they intervened and had the directive revoked. [FN1538] The USAO was also troubled by the resistance that the FBI showed to the discovery obligations of the prosecution and to the USAO request for expert assistance from the FBI Laboratory. [FN1539]

From the FBI perspective, they were quite upset with how the USAO was handling the Weaver prosecution including: the decision to bring the Marshals Service and BATF into the case, the USAO opposition to sending leads to conduct the Iowa interviews, [FN1540] the broad scope of the indictment and the open discovery policy followed by the USAO. Other issues that concerned the FBI included the debate over the need to transport the birthing shed from Ruby Ridge to Boise for use at the trial, criticism voiced by other team members about the FBI crime scene search and the USAO treatment of FBI members. [FN1541]

The FBI case agents assigned to the Weaver matter complained that they felt isolated from the activities of the other team members. For example, Rampton complained that he was unaware of the projects on which the marshals were working in part because they were creating no documentation of their activities. [FN1542] In addition, the FBI case agents believed that efforts were taken to exclude them from team meetings and other team activities.

Lindquist denied that they intentionally excluded FBI members from meetings or activities but acknowledged that there may have been occasions where teams or subteams met without the other group members. [FN1544] Howen tried to conduct a team meeting every two or three weeks. He insisted that everyone was invited and notified of these meetings to discuss matters on which a particular subteam was working. [FN1545] Both Howen and Lindquist denied ever instructing the marshals or the BATF agents to conduct some type of investigative activity and not inform the FBI about it. [FN1546] Ellsworth suggested that the reason that the FBI agents felt excluded and believed that the marshals had a more active role than they did was because the FBI agents were somewhat physically isolated because they were not always in Boise. [FN1547]

In addition to the problems that they attributed to the USAO, the FBI agents also detected hostility and a lack of cooperation from other team members, most notably the marshals. For example, although they made their files available to the other agencies to assist in case preparation, the FBI case agents did no feel that the other agencies reciprocated. 1548 The FBI case agents also recognized that the marshals assigned to the case were sensitive to any remarks or actions by the FBI that seemed to question the truthfulness of statements made by Deputy Marshals Cooper and Roderick. For example, at some point, Venkus and Rampton discussed the possibility that Degan may have been moving as he fired his weapon since the spent cartridges from Degan's gun were spread over 22 feet. This theory was contrary to the marshals' account that Degan had not fired his weapon. When Rampton presented this theory, he recalled Masaitis becoming very upset, stating that he did no have to listen to this and then leaving the discussion. Thereafter, Rampton informed Howen that he was going to send Degan's gun for an ejection pattern test to determine how far the spent shells would be ejected. Rampton insisted that Howen concurred with the plan but later failed to acknowledge his approval thereby making it look as if Rampton had taken this action on his own. [FN1549] Several weeks later, Rampton recalled that Howen met with him and asked if he felt that he could continue as a team member considering the hostility he had created by questioning the veracity of Cooper. Rampton insisted that he was not accusing Cooper of lying but only wanted the team to focus on a possible conflict between the physical evidence and Cooper's statement that Degan had not fired his gun. [FN1550]

From the perspective of the marshals, Stafford was troubled by Rampton's questioning of the truthfulness of the Cooper and Roderick statements regarding who fired the first shot. Stafford felt that when Rampton characterized these statements as being "less than truthful" he was suggesting that Cooper and Roderick had "purposely" omitted some information. [FN1551] Another incident that angered the marshals concerned the inaccuracies that appeared in the FBI draft of the Cooper FD- 302. [FN1552]

The other team members were aware that the FBI agents were having difficulty integrating into the team and that discord existed between them and the FBI agents. For example, after the first meeting, Stafford perceived that the FBI case agents were not greatly involved in the case and that they did not appear to attend very many of the meetings. [FN1553] He characterized the behavior of the FBI on the case as lacking initiative and response [FN1554] yet he admitted that he had no knowledge of the FBI ever refusing to do an investigative task in this matter. However, he stated that he knew of instances in which work was assigned to FBI agents but was not completed. [FN1555]

Another team member, BATF Agent Byerly attributed the discord between the FBI and other team members to "the reluctance by the FBI to attempt techniques beyond the norm," and the resistance of the FBI to release certain documents and information to the USAO. [FN1556] Byerly was never aware of any attempts to exclude a team member from a meeting or to withhold the existence or the results of an investigative activity from another team member. [FN1557] According to Byerly, any disagreements related to issues involving investigative techniques and proposed approaches to supporting the government's case such as the proposed reconstruction of the shooting scene. [FN1558]

According to Howen, throughout the case preparation and trial period, issues continually arose that created discord between the FBI and the Marshals Service. In his words, the problem "never got better." [FN1559] Howen took no specific actions to diffuse the hostility other than to try to listen to all sides and allow them equal input into issues. [FN1560] Howen also attributed some of the discord between the FBI and the Marshals Service to an attitude which he believes is pervasive in the FBI which is that they are the premier investigative agency and that the other federal agencies are inferior. There was also a perception among the Marshals Service members of the team that the FBI had made many errors in their handling of the crime scene, including the triangulation issue [FN1561], and that their efforts would have been better if it had been an FBI agent who had been killed. The discovery of a document prepared by the FBI that was highly critical of the Marshals Service actions in the Weaver case further deteriorated the relationship between the case agents and the FBI. [FN1562]

Lindquist attributed the disagreements with the FBI to the actions and directives of upper management officials and their failure to communicated with the prosecutors. He believed that the difficulties that they experienced communicating with the decision makers in the FBI were due to the command structure of the FBI and their refusal to communicate with those not at a comparable rank. [FN1563] To the extent that disagreements arose between him and the case agents, they were always able to resolve them except when upper management became involved and issued orders as to the position to take. [FN1564] Lindquist said he believed that the FBI case agents were confronted with the dilemma of wanting to perform their jobs but being required to adhere to the FBI position on issues such as the lead agency concept and the sending out of leads. By the early part of 1993, Lindquist thought that the FBI case agents were working well with the others on preparing the case for trial. [FN1565]

(4) Attempts to Interview FBI Officials at Headquarters

As part of their case preparations, Howen and Lindquist wanted to interview FBI officials who were involved in the deployment and instruction of the Hostage Rescue Team ("HRT") and in the formulation and modification of the rules of engagement. Among the individuals that they wanted to interview were Danny Coulson, Larry Potts and Mike Kahoe. Howen and Lindquist identified two separate occasions when they unsuccessfully sought to interview these individuals. The first occurred in October 1992 when the prosecutors came to Washington to meet with DOJ officials and the Marshals Service. [FN1566] According to Howen, they had provided advance notice to the FBI that they were going to be in Washington and wanted to interview these officials. However, when they arrived in Washington and contacted the FBI, they were informed that the FBI officials were unavailable. [FN1567] Neither prosecutor made the interview arrangements. Howen did not know who had set up the interviews with the FBI but speculated that it was Dillon or Rampton [FN1568] while Lindquist believed that the Terrorism and Violent Crime Section at the Department of Justice had made the arrangements for a specific day. [FN1569]

The second time that Howen and Lindquist were unsuccessful in interviewing the headquarters officials was sometime in early March 1993. Although Howen could not recall what, if any, prior arrangements had been made to conduct the interviews, [FN1570] Lindquist believed that specific times and been set for these interviews. [FN1571] Lindquist stated that when they arrived they were told that the FBI officials were unavailable. It was his impression that they were being "put off." [FN1572]

In a March 17, 1993 memorandum, Dana Biehl mentioned that the prosecutors expressed a need to interview Potts, Kahoe, Coulson, Uda and Apple. [FN1573] On the next day, James Reynolds informed Mark Richard, Deputy Assistant Attorney General of the Criminal Division, of the need of the prosecutors to interview these individuals. In addition, Reynolds noted that when the prosecutors had been in town the previous week, the FBI had declined to make them available until the Waco standoff was resolved. Reynolds opined that this position was unacceptable. [FN1574] He told investigators that his impression was that Howen and Lindquist had not made advance appointments with the FBI officials. [FN1575] Mary Incontro told investigators that when the interview request was made almost everyone was involved with the WACO crisis. She added that the FBI always indicated a willingness to meet with the prosecutors. [FN1576]

Thereafter, Reynolds attempted to arrange interviews with the FBI officials. The FBI agreed to make the officials available on two or three consecutive days between the hours of 7:00 p.m. to 9:00 p.m. When Reynolds informed Lindquist of this proposal, Lindquist responded that they had been in Washington two weeks ago and now the FBI officials could come to Boise. In a later call, Howen and Lindquist indicated that they would try to complete the interviews during a one week recess in late April 1993. [FN1577] Howen said he may have conducted one or two interviews by phone but that the time demands of the trial caused him to abandon further telephone interviews. [FN1578]

3. Discussion

a. Decision to Have the Marshals Service and BATF Assist in Case Preparation

The USAO created great conflict between it and the FBI when it decided to add the marshals and BATF agents to the trial preparation team. We find the FBI's actions and attitudes to have been unjustified and terribly disruptive to the USAO's trial preparation efforts. Although conflicting evidence exists as to whether the USAO requested the addition of the marshals to the trial team or whether the Marshals Service volunteered its services, we are confident that it was a decision that was welcomed by both the Marshals Service and the USAO. Perhaps the USAO could have been more tactful or sensitive in the timing and manner in which they informed the FBI of this action. However, we do not consider such a decision to have been one that required FBI concurrence or approval. We believe that the decision was appropriate and was certainly one within the purview of the USAO. We accept the representations of the USAO as to why these agencies were added to the trial team, including that they needed additional assistance in preparing the case for trial. This was a complicated case that was made dramatically more labor intensive by the scope of the indictment and the inclusion of the conspiracy count. Investigative activities needed to be conducted outside of Boise and large amounts of evidence needed to be processed, organized and analyzed. We think it was entirely appropriate for the USAO to turn for assistance to the Marshals Service and the BATF, both of which had prior investigative interest and involvement in the case.

We are troubled by the reaction of the FBI to the addition of these new members to the trial team and its tenacious adherence to its position of being the lead agency. Such resistance was unjustified, distracted the USAO from its task of preparing the case for trial, and set a negative tone for the working relationship between the FBI and the other team members.

That the FBI had primary jurisdiction over the assault charges does not confer power on it to control the entire case. There was room on the case preparation team for the participation of other agencies having an interest in the case. Once the case became the responsibility of the USAO we think that they, not the FBI, were the appropriate governmental body to control the direction of the case preparation activities. Although a component of these activities included additional investigation, we do not find it inappropriate for the USAO to control and direct such activities. Indeed, it is the USAO that must present evidence at trial to satisfy all of the elements of the charged offenses and to meet the defenses raised by the defendants. Consequently, we believe that the USAO was in the best position to assess how to prepare the case for trial. Having the FBI function as an intermediary between the USAO and the other agencies would have added a needless and burdensome bureaucratic layer. We respect the decision of the USAO not to have instituted such an approach and are extremely critical of the rigidity of the FBI on this issue. In our view, the FBI lost sight of its role as assisting rather than controlling the actions of the USAO.

b. The Iowa Interviews and the Failure to Document the Results

We are not aware of any legal principle or statutory requirement that requires governmental investigators to document all of the interviews that they conduct. See United States v. Martino, 648 F.2d 367, 387 (5th Cir.), cert. denied, 456 U.S. 943 (1981). Although the FBI requires its agents to document their interviews, other governmental agencies do not impose requirements that are as exacting. In this case, the prosecutors took advantage of the less restrictive documentation requirements of the Marshal Service and had the marshals conduct approximately 100 witness interviews during the serving of subpoenas. [FN1553] It is our opinion that this practice was imprudent.

Under the Brady doctrine the government is required to disclose to the defense material evidence that is both favorable to the accused and material to either guilt or punishment. See United States v. Bagley, 473 U.S. 667, 676, 682 (1985); Brady v. Maryland, 373 U.S. 83, 87 (1963). This requirement is not limited to information that is in written form but extends to oral statements of which the government is aware. See generally, Carter v. Rafferty, 826 F.2d 1299 (3d Cir. 1987), cert. denied, 484 U.S. 101 (1988). In addition, the prosecutor is responsible for producing Brady information which is within the knowledge of persons working as part of the prosecution team of intimately connected with the government's case. United States v. Butler, 567 F.2d 885, 889 (9th Cir. 1978); United States v. Morell, 524 F.2d 550, 555 (2d Cir. 1975). Although we discovered no evidence that these interviews produced any exculpatory information, our inquiry was severely restricted since no written, audio or video record was created of these interviews. Without memorializing these interviews, we were forced to rely on the memories of two individuals: Howen and Stafford.

Howen insisted that if these interviews had produced any exculpatory information that he would have notified defense counsel. No matter how sincere Howen is on the issue, we are not comfortable that the interview process in place was adequate to ensure that exculpatory information was identified. No one ever instructed the marshals or took steps to ensure that they, particularly Stafford, understood the type of information that qualified for production under the Brady rule. Moreover, some of the notations that Stafford made on the subpoena cover sheets suggest that significant information might have been learned. [FN1584] Although this information may not have been Brady material, we have no reliable means to comfortably conclude that it is not.

Although we recognize that prosecutors may sometimes participate either directly or indirectly in interviews that are not documented, we are concerned by the actions of Howen in this case. Here, we are not talking about one or two undocumented interviews but rather we are faced with a situation where approximately 100 interviews were conducted in this manner. [FN1585] Although there may be no direct evidence that exculpatory information was learned and concealed, we think that adverse interferences may be drawn by the undocumented interview process followed in the Weaver prosecution. There were no reliable safeguards in place to ensure that if exculpatory information were learned that it would be provided to the defense. [FN1586] Relying on the memory and judgment, regardless of how well intentioned, of a marshal who was not specifically trained or instructed regarding the identification of exculpatory information, does not suffice. Accordingly, we find the procedure to be inappropriate and advise against adopting a similar practice in the future.

c. Acoustical Experiment at Ruby Ridge

We find nothing improper about the acoustical experiment that members of the prosecution team conducted in late October 1992 at Ruby Ridge. Indeed, we accept the explanation provided by Lindquist that it was nothing more than a preliminary attempt to determine if expert assistance was necessary. The test firings were not scientifically planned or conducted. Even Rampton was surprised by the unscientific methodology used. The test consisted only of the firing of guns at the approximate locations where the participants of the August 21, 1992 shooting were located. There were no controls on the experiment or written findings. Nor, as Howen recognized, was there any way to duplicate the August 21st conditions since most of the leaves had fallen from the deciduous trees.

The test results were clearly not discoverable under Fed. R. Crim. P. 16(a)(1)(D) for two obvious reasons. [FN1587] First, the test would not qualify as a scientific test or experiment as that term is commonly understood. The actions that the participants took in conducting their rudimentary test did not utilize modern scientific techniques. [FN1588] Second, Rule 16 has been interpreted as requiring only the disclosure of written reports and written test results. United States v. Peters, 937 F.2d 1422, 1425 (9th Cir. 1991); United States v. Glaze, 643 F.2d 549, 552 (8th Cir. 1981). The government is under no duty to turn over informal internal documents, but need only disclose final results and reports. United States v. Iglesias, 881 F2d 1519, 1523-24 (9th Cir. 1989), cert. denied, 493 U.S. 1088 (1990). Here, no written results were ever prepared.

Even if the experiment were not discoverable under Rule 16, the issue remains whether the government should have disclosed it to the defense as Brady material. We find that such disclosure was not required. From the evidence produced in our investigation, we found no indication that the test produced any type of result that could be properly classified as being exculpatory in nature. No one present for the test could recall what, if any, conclusions were reached. Lindquist, who was not present at the test, recalls hearing that the results were inconclusive as to the effect of echoes and whether the firing of different types of guns could have been distinguished. Howen told investigators that he never gave any consideration to informing the defense of the acoustical test because he did not consider what they were doing to be exculpatory. [FN1589] Moreover, in our view, the unscientific nature of the test coupled with the difference in conditions caused by the fallen leaves were significant variables that would call into question any results obtained. For all of these reasons, we conclude that the test did not constitute Brady material.

d. Attempts to Interview FBI Officials

Although we find the difficulty that the prosecutors encountered in attempting to interview FBI officials in Washington to be unfortunate, the evidence was inconclusive that these officials or others in the FBI were intentionally avoiding being interviewed. Indeed, we are not convinced that explicit interview arrangements were ever made. No one was able to provide us with a satisfactory account of who set up the interviews, what specific arrangements were made, and what information was provided to the interviewees. Neither Howen nor Lindquist had a good sense as to who was making the arrangements to interview the FBI officials. Nor did the clearly recall having exact times set during which the interviews would occur.

Furthermore, none of the FBI officials recalled the first unsuccessful interview attempt. All denied that they had ever refused an interview request from the prosecutors. Mary Incontro indicated that the officials always appeared willing to meet with the prosecutors. To the extent that these officials may have been unavailable for interviews during the Waco crisis, we do not find the excuse to have been a fabrication. These officials were closely involved in the Waco crisis, were working long hours and were responsible for monitoring the crisis and making critical decisions. When James Reynolds contacted them, they agreed to make themselves available for evening interviews. Although perhaps the FBI officials could have shown more flexibility in accommodating the needs of the prosecutors, we cannot conclude that their actions were totally without justification.

In the future, we would hope that the FBI will work to facilitate the access of prosecutors to FBI headquarters officials who are important to the preparation of federal prosecutions. A system needs to be instituted whereby the local FBI office either can make firm arrangements for such interviews or can introduce the prosecutors to the officials so that direct arrangements may be made. Although we appreciate the continuous demands made of many FBI officials, they must recognize that assisting federal prosecutors in preparing their cases for trial is included among their responsibilities as a member of the federal law enforcement team.

e. Relationship Among the Investigative Team

Prior to the beginning of the Weaver case preparation, problems existed in the working relationship between the FBI and the USAO. However, the relationship between these two branches of the department of Justice dramatically deteriorated with the Weaver prosecution. Although our investigation did not reveal that either side was intentionally taking actions to aggravate the other or to sabotage the prosecution, we were dismayed by the failure of the parties to more actively try to resolve their disagreements.

Many of the individuals questioned about the relationship between the USAO in Boise and the FBI attributed the discord to a personality clash between the parties involved. Some, including Stafford, attributed the problem as being traceable primarily to the FBI Headquarters and the regional office in Utah. We agree that some of the difficulties were probably worsened by personality clashes between members of the USAO and the FBI. However, we believe that the problem goes much deeper and originated in the bureaucratic rigidity of the FBI and the institutional bias displayed by some members of that institution.

The behavior of the FBI in the Weaver case revealed their troubling unwillingness to work as a team player. If the FBI could not be in control or it its views were not adopted, the FBI participated in an unreasonable manner by either refusing to cooperate or going through the motions of cooperating while exhibiting a negative attitude. Examples of such behavior included the intransigence that the FBI showed with regard to its opposition to the case agents conducting the interviews of the Iowa witnesses, the unwillingness of the FBI to accept and work with representatives from the other investigatory agencies, the failure of the FBI to actively assist the USAO by providing expert assistance, [FN1592] and the resistance of the FBI to producing materials that the USAO believed were discoverable.

The FBI is supposed to work together to assist the prosecutors in developing and presenting criminal cases for trial. In the Weaver case the FBI lost sight of this crucial responsibility.

When decisions were made by the USAO with which they did not agree, the FBI found it difficult to accept them and to proceed with the task of preparing the case for trial. This problem appeared both to emanate from the managerial levels of the FBI and to filter down in a diluted form to the case agents. We also detected a prevalent and troubling attitude among members of the FBI that they are the superior investigators and that all other investigative agencies are inferior. This attitude was detected by the other agencies which served to further weaken the already fragile working relationship.

Although we sympathize with the pressures under which members of the USAO were operating in prosecuting this case, we were left with the impression that perhaps further actions and discussions might have lessened or resolved the disagreements between the USAO and the FBI. With regard to the clash between the FBI and the other investigative agencies, the USAO appeared to allow matters to proceed without taking any significant steps to improve the working relationship among these groups. We suspect that the personalities involved in these disputes contributed to the standoff that seemed to exist between the USAO and the FBI. What was needed was a strong personality that could have risen above the fray and attempted to resolve the disagreements and misunderstandings that existed. We are encouraged by the actions and attitude of the new U.S. Attorney for the District of Idaho and are hopeful and optimistic that she and the FBI will be successful in eliminating some of the problems that have plagued the relationship between her office and the FBI.

4. Conclusion

The working relationship between the FBI and the USAO and other team members in the Weaver case was poor and, in our view, adversely impacted upon the preparation of the Weaver case for trial. Active steps must be taken to ensure that such problems do not repeat themselves in subsequent prosecutions.


1393 Howen Interview, Tape 8, at 21-22.

1394 FD-302 Interview of Gregory Rampton, October 18-19, 1993, at 19. See also, FD-302 Interview of T. Michael Dillon, October 25, 1993, at 13-14.

1395 Lindquist Interview, Tape 1, at 21-24.

1396 Rampton FD-302, at 35.

1397 FD-302 Interview of Joseph V. Venkus, October 18-19, 1993, at 19; Lindquist Interview, Tape 2, at 5.


See also, Venkus FD-302, at 19. Lindquist rejected the economic justification argument advanced for using leads since the Weaver matter was a major case and the FBI had always found the money to investigate major cases. He believed that the FBI was insisting on leads simply because that was the way the Bureau always handled such matters. Lindquist Interview, Tape 2, at 5-6.

1399 Dillon adamantly opposed having the case agents conduct out of state interviews. Dillon FD-302, at 11.

1400 Venkus FD-302, at 22.

1401 This document is captioned, "Things to Do." The first item on the list states, "Get agent in or near Cedar Rapids to get all articles on the Weaver's for background," and then to interview the nine witnesses on the list. See Undated Document entitled "Things to Do," authored by Ronald Howen.

1402 Venkus FD-302, at 22. Rampton explained that a "clean 302" was one in which the identifying FBI file number was not present. According to Rampton, Howen did not want the FBI file number on the document because it would impair the ability of the defense to obtain all of the information in that file under a Freedom of Information Act request. Rampton FD-302, at 21.

1403 Venkus FD-302, at 22.

1404 Letter from Maurice Ellsworth to Eugene Glenn, October 23, 1992, at 3.

1405 Howen Interview, Tape 8, at 44-47.

1406 Letter from Maurice Ellsworth to Eugene Glenn, October 23, 1992, at 3.

1407 Venkus FD-502, at 19.

1408 Rampton FD-302, at 22.

1419 Howen Interview, Tape 8, at 16.

1420 It appears that Ms. Hefner had very little involvement in case preparation and that Mr. Byerly was the more active participant. See Lindquist Interview, Tape 1, at 16.

1421 Stafford Sworn Statement, at 2; Sworn Statement of Robert Anthony Masaitis, at 2. Special Agent in Charge Glenn told investigators that Duke Smith had told him that the Assistant U.S. Attorneys assigned to the case had made this request to the Marshals Service. Sworn Statement of Eugene Glenn, January 12, 1994 at 19.

1422 FD-302 Interview of Henry Hudson, November 15, 1993, at 8.

1423 Letter from Maurice Ellsworth to Eugene Glenn, dated October 23, 1992, at 2; Ellsworth Interview, Tape 4, at 18; Howen Interview, Tape 8, at 26-28.

1424 Lindquist Interview, Tape 2, at 3-4. However, Venkus stated that Lindquist told him that Smith had offered the assistance of the deputy marshals. Lindquist is then reported to have asked Venkus how could they refuse such an offer. Venkus FD- 302, at 17.

1425 FD-302 Interview of Ronald D. Evans, dated October 21, 1993, at 5.

1426 Stafford Sworn Statement, at 8.

1427 Howen Interview, Tape 6, at 32-36

1428 Ellsworth Interview, Tape 4, at 12, 19-20.

1429 Lindquist did not believe that the local FBI office had the resources to accomplish the required trial preparation tasks. Lindquist Interview, Tape 2, at 4-5.

1430 Lindquist Interview, Tape 3, at 3.

1431 Rampton FD-302, at 22.

1432 Ellsworth Interview, Tape 4, at 19; Letter from Maurice Ellsworth to Eugene Glenn, October 23, 1992, at 2.

1433 Howen Interview, Tape 8, at 34-35.

1434 Lindquist Interview, Tape 2, at 13-14.

1435 Thereafter, at the instruction of Dillon, Rampton called the marshals and invited them to review the FBI file on the case. Rampton stated that the marshals never accepted the offer. Rampton FD-302, at 23.

1436 Dillon FD-302, at 11.

1437 Dillon FD-302, at 12. See Letter from Eugene Glenn to Maurice Ellsworth, dated October 22, 1992; Letter from Maurice Ellsworth to Eugene Glenn, dated October 23, 1992; Letter from Eugene Glenn to Maurice Ellsworth, dated October 27, 1992.

1438 Rampton FD-302, at 23.

1439 Glenn Sworn Statement, at 39-40.

1440 Hudson FD-302, at 8.

1441 Stafford Sworn Statement, at 2.

1442 Rampton FD-202, at 22.

1443 Ellsworth Interview, Tape 4, at 20.

1444 Rampton FD-302, at 22. See also, Memo to Weaver/Harris File from Kim R. Lindquist, October 26, 1992 (hereinafter cited as "Lindquist File Memo").

1445 Venkus FD-302, at 17.

1446 Lindquist File Memo, October 26, 1992, at 2.

1447 Evans FD-302

1448 Hudson FD-302, at 8.

1449 Stafford Sworn Statement, at 1-2.

1450 Masaitis Sworn Statement, at 2-3.

1451 Lindquist Interview, Tape 2, at 14-15, 17; Lindquist File Memo, October 26, 1992.

1452 Howen Interview, Tape 8, at 23-25; 35-37.

1453 Id. at 37.

1454 Howen Interview, Tape 8, at 22-23.

1455 Ellsworth Interview, Tape 4, at 22.

1456 Letter from Eugene Glenn to Maurice Ellsworth, October 27, 1992, at 1.

1457 Ellsworth stated that: the FBI had primary investigative jurisdiction as to the two assault on a federal officer counts and the murder count; the Marshals Service had primary investigative jurisdiction as to the three counts of the indictment charging the failure to appear, harboring a fugitive and commission of a crime while pending release for trial; the BATF had primary jurisdiction for the three gun related offenses; and that all three investigative agencies had responsibility for parts of the conspiracy count. Letter from Maurice Ellsworth to Eugene Glenn, October 23, 1992, at 1-2.

1458 Initially, Venkus and Rampton informed Howen and Lindquist that they would be unable to attend the first meeting because of a conflicting meeting with Dillon. Venkus FD-302, at 18. The USAO believed that this was an excuse made by the FBI because they were embittered by the decision to bring in the other agents. Lindquist Interview, Tape 2, at 15-16; Memo to Weaver/Harris File from Kim R. Lindquist, dated October 26, 1992; Memorandum from Maurice Ellsworth to Kim Lindquist and Ron Howen, dated October 26, 1992. the FBI disputes that charge and maintains that there were legitimate reasons for their inability to attend the meeting scheduled. After initially declining to attend the first team meeting in Post Falls, Idaho, Dillon, ASAC Tubbs, Rampton and Venkus attended the meeting after Howen rescheduled it to another date. Venkus FD-302, at 18.

1459 Howen Interview, Tape 8, at 37-40; Sworn Statement of Herbert Byerly, December 20, 1993, at 19-20.

1460 Byerly Sworn Statement, at 19-20.

1461 Stafford Sworn Statement, at 3.

1462 Masaitis Sworn Statement, at 5.

1463 Venkus FD-302, at 18.

1464 Masaitis Sworn Statement, at 5.

1465 Lindquist Interview, Tape 2, at 20.

1466 Id. at 20-21.

1467 Masaitis Sworn Statement, at 15-16; Lindquist Interview, Tape 2, at 18.

1468 Stafford Sworn Statement, at 7-8. chief Deputy Marshal Ronald Evans seemed to confirm this practice. He stated that it is standard procedure for deputy marshals to document the results of any investigation that they conduct but that it is "up to the individual and is generally discussed with the AUSA." Evans FD-302, at 6.

1496 Stafford Sworn Statement, at 6.

1470 Id. at 8.

1471 Venkus FD-302, at 10.

1472 Rampton FD-302, at 24.

1473 Id. at 25.

1474 Howen Interview, Tape 8, 15 46-47.

1475 Stafford Sworn Statement, at 5.

1476 Id. at 3.

1477 Id. at 8.

1478 Id. at 2-3.

1479 The U.S. Attorney's Office prepared a master list of witnesses from these sheets. Id. at 6.

1480 Stafford Sworn Statement, at 7. Howen insisted to investigators that he had never seen these sheets prior to his November 1993 interview. Howen Interview, Tape 9, at 11.

1481 Howen Interview, Tape 8, at 44-48.

1482 Id. at 49-53.

1483 Id. at 51-56.

1484 Howen Interview, Tape 8, at 49.

1485 Id. at 56-57.

1486 Lindquist Interview, Tape 2, at 18.

1487 Id. at 19.

1488 Id. at 20.

1489 Id. at 20.

1490 Byerly Sworn Statement, at 22-23.

1491 Byerly recalled wondering why Venkus, who lived in Northern Idaho, was not participating in serving the subpoenas. He did not know whether Venkus and Rampton were aware that they were serving the subpoenas and conducting the interviews. Byerly Sworn Statement, at 24. Howen said that normally the marshals would serve their subpoenas. He could not recall why Deputy Marshal Cluff, who had the region, did not serve the subpoena but he speculated that he might have been unavailable. In any even, Howen stated that Stafford was a marshal and that was consistent with his practice of having the marshals serve the subpoenas. Howen Interview, Tape 9, at 1.

1492 Byerly Sworn Statement, at 23; Stafford Sworn Statement, at 3.

1493 Byerly Sworn Statement, at 23.

1494 Id.

1495 Id.

1496 Masaitis Sworn Statement, at 13-15.

1497 Id. at 18.

1498 Rampton FD-302, at 25; Venkus FD-302, at 19. Rampton reported that following a February 1993 team meeting at which Howen and Lindquist agreed that the FBI should conduct some Iowa interviews, Rampton sent out leads to conduct these interviews. At a subsequent team meeting, Rampton was surprised to learn from Stafford that he had already conducted some of these interviews.

1499 Sworn Statement of Eugene Glenn, at 40.

1500 Rampton FD-302, at 36.

1501 Id. at 27

1502 Howen Interview, Tape 2, at 21.

1504 Venkus FD-302, at 20.

1505 Lindquist Interview, Tape 2, at 21-22.

1506 Id. at 21; Ellsworth Interview, Tape 4, at 31.

1507 Lindquist Interview, Tape 2, at 22.

1508 Id. at 22-23.

1509 Id. at 22-23.

1510 Rampton FD-302, at 42-43; Venkus FD-302, at 20.

1511 FD-302 Interview of Bruce E. Koenig, October 28, 1993, at 1-2.

1512 Masaitis Sworn Statement, at 7-8.

1513 Lindquist does not recall participating in this experiment. Lindquist Interview, Tape 2, at 23. BATF Agent Byerly did not participate in the acoustical test but was aware that it occurred and believes that he was informed of the results. It was his understanding that the purpose of the test was to corroborate what the marshals heard on the mountain and to determine the impact of echoes. Byerly Sworn Statement, at 24.

1514 Stafford Sworn Statement, at 9.

1515 Masaitis Sworn Statement, at 8.

1516 Howen Interview, Tape 9, at 11.

1517 Masaitis Sworn Statement, at 8.

1518 Stafford Sworn Statement, at 9; Masaitis Sworn Statement, at 8.

1519 Venkus FD-302, at 29.

1520 Lindquist Interview, Tape 2, at 24.

1521 Rampton FD-302, at 42-43.

1522 Howen Interview, Tape 9, at 6-8.

1523 U.S. Attorney Ellsworth could not recall this experiment being conducted. Ellsworth Interview, Tape 4, at 32-33.

1524 Lindquist Interview, Tape 2, at 23.

1525 Howen Interview, Tape 9, at 10.

1526 Baldwin was a sheriff from Idaho County who was prosecuted for illegal wiretapping. The jury acquitted Baldwin of these charges. Ellsworth Interview, Tape 5, at 2-3.

1527 Dillon FD-302, at 6; Venkus FD-302, at 27.

1528 Dillon FD-302, at 6-7.

1529 Glenn Sworn Statement, at 41.

1530 Ellsworth Interview, Tape 4, at 18.

1531 Lindquist Interview, Tape 7, at 24.

1532 Id. at 27.

1533 FD-302 Interview of Wayne F. Manis, October 5, 1993, at 2 and attached chronology.

1535 Howen Interview, Tape 10, at 24-26.

1536 Lindquist Interview, Tape 6, at 31.

1537 Ellsworth Interview, Tape 6, at 4.

1538 Lindquist Interview, Tape 5, at 13-14; Ellsworth Interview, Tape 4, at 13-14. Memorandum from Maurice Ellsworth to Kim Lindquist and Ron Howen, October 26, 1992.

1539 See Section IV (J) for a discussion of the problems caused by the FBI Laboratory.

1540 By Fall 1992, the relationship had deteriorated to such a point that Assistant U.S. Attorney Marc Haws drafted a memorandum of understanding ("MOU") between the USAO and the FBI. Lindquist Interview, Tape 2, at 8-9. According to Howen, the relationship had become so poor that Ellsworth was ready to state that the USAO would stop trying cases referred by the FBI if they did not stop trying to control the prosecutions. Howen Interview, Tape 11, at 10-11. The MOU set forth terms of cooperation to be followed by the USAO and the FBI when working together in preparing major criminal cases for trial. The last version of this document was transmitted to Glenn and Dillon for signature; Glenn never executed the document. Howen Interview, Tape 11, at 10-11; Ellsworth Interview, Tape 4, at 13-16. Letter from Marc Haws to Maurice Ellsworth, G Wayne Smith, T. Michael Dillon and Gene F. Glenn, October 28, 1992.

1542 Rampton FD-302, at 27.

1543 Dillon FD-302, at 12; Rampton FD-302, at 21.

1544 Lindquist Interview, Tape 2, at 16.

1545 Howen Interview, Tape 8, at 41-43.

1546 Id. at 43; Lindquist Interview, Tape 2, at 16-17.

1547 Ellsworth Interview, Tape 4, at 22.

1548 Venkus FD-302, at 21.

1549 Venkus FD-302, at 25; Memorandum by Gregory Rampton, February 9, 1993.

1550 Id.

1551 Stafford Sworn Statement, at 4.

1552 Howen Interview, Tape 11, at 2.

1553 Stafford Sworn Statement, at 3.

1554 Id.

1555 Id. at 6.

1556 Byerly Sworn Statement, at 27.

1557 Id. at 21, 24.

1558 Id. at 21.

1559 Howen Interview, Tape 11, at 4.

1560 Id. at 4-5. As the various problems surfaced prior to and during the trial, Masaitis credited Howen and Lindquist with attempting to deal with the problems without displaying any overt hostility to the FBI. Masaitis Sworn Statement, at 12.

1561 see Section IV(I( of this report for a discussion of the controversy surrounding the failure of the FBI to use the triangulation process when collecting the evidence at the crime scene.

1562 Howen Interview, Tape 11, at 2-4. The marshals critique and the resistance of the FBI to produce it in discovery is discussed in Section IV(M).

1563 Lindquist Interview, Tape 7, at 25.

1564 Id. at 28-29.

1565 Id., Tape 2, at 8-11.

1566 Howen Interview, Tape 8, at 26.

1567 Id. at 29-30. Lindquist recalled that they were scheduled to meet with Larry Potts and John Uda, the author of the document that has become known as the "marshals critique" as well as some other officials. Lindquist Interview, Tape 5, at 9-10.

1568 Howen Interview, Tape 8, at 30.

1569 Lindquist Interview, Tape 5, at 10-11.

1570 Howen Interview, Tape 10, at 19.

1571 Lindquist Interview, Tape 5, at 11.

1572 Id. at 9-11.

1573 Memorandum from Dana Biehl to James Reynolds, March 17, 1993 at 5.

1574 Memorandum from James Reynolds to Mark Richard, March 18, 1993, at 7.

1575 FD-302 Interview of James Reynolds, August 11, 1993, at 6.

1576 FD-302 Interview of Mary Incontro, August 10, 1993 at 3.

1577 Reynolds FD-302, August 11, 1993, at 6. Sometime during the pretrial preparation of the Weaver case, Jeffrey Howard, who at the time was Principal Associate Deputy Attorney General of the Department of Justice, recalled a meeting with two Assistant U.S. Attorneys for Idaho and other DOJ officials. Howard recalled that the Assistants were complaining about their access to people at FBI Headquarters. It was his recollection that someone from the meeting called the FBI and made arrangements for the Assistants to meet with those individuals with whom they had been trying to meet. FD-302 Interview of Jeffrey Howard, January 3, 1994, at 3.

1578 Howen Interview, Tape 10, at 20.

1583 Although Howen and Lindquist may not have issued a specific directive not to document the interviews, the evidence demonstrates without question that they did not want to create a paper trail of their activities for the defense to discover and that the reason that they did not have the FBI conduct the interviews was because their agents were required to prepare written reports of the interviews that they conducted. When questioned about the failure of the deputy marshals to document the interviews conducted while serving subpoenas, former Marshals Service Director Hudson stated that he would not permit an Assistant U.S. Attorney to direct a deputy marshal not to write a report in order to avoid discovery requirements. Hudson FD-302, at 9.

1584 For example, on the subpoena sheet for Chris Colegrove, Stafford deleted the typed words "not needed" and wrote "needed." Stafford wrote on the subpoena sheet for Steve Tanner, "This guy must be interviewed. Ron & Kim, Talk to me about this guy. JWS."

1585 U.S. Attorney Ellsworth was unaware that these interviews had not been documented and had always assumed that the marshals had agreed to use the FD-302 interview form when conducting interviews. He stated that he would have been concerned if he had learned that the interviews were not being documented since a record needed to be made of the information collected to ensure that the USAO was complying with its discovery obligations. In addition, Ellsworth thought that the conducting of undocumented interviews seemed inconsistent with the open discovery policy of the USAO. Ellsworth saw no problem in documenting all interviews but stated that there might be some situation when it would not be necessary. Ellsworth Interview, Tape 4, at 26-28.

1586 James Reynolds believed that an interview should be documented if it generates significant information even if the amount of information involved is small. Reynolds FD-302, October 3, 1993, at 6.

1587 In the discovery stipulation executed by the parties, they agreed "to reciprocal disclosure and inspection of all material stated" in Fed. R. Crim. P. 16(a)(1) and 16(b)(1). See stipulation and Reciprocal Request for Discovery and Inspection, Notice of Alibi and Notice of Mental Condition, dated October 16, 1992, a 1. Rule 16(a)(1)(D) of the Federal Rules of Criminal Procedure provides in pertinent part that,

Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph any results or reports ... of scientific tests or experiments ... which are within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial.

1588 See generally 3 Moore's Federal Practice ? 16.05?? (1993)

1589 Howen Interview, Tape 9, at 10.

1590 See, e.g. DOJ Memorandum of Interview of Marc Haws, December 17, 1993, at 4.

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