II. FACTUAL SUMMARY

A. THE U.S. MARSHALS SERVICE

In January 1985, the U.S. Secret Service investigated allegations that Randy Weaver had made threats against the President and other government and law enforcement officials. The Secret Service was told that Weaver was associated with the Aryan Nations, a white supremacist group, and that he had a large cache of weapons and ammunition. Weaver had spoken of the world's ending in two years "when [his] home will be under siege and assaulted." Secret Service agents interviewed Weaver, who denied the allegations. No charges were filed.

 In February 1985, Weaver and his wife, Vicki, filed an affidavit with the county clerk, giving "legal and official notice that [he] believe[d] [he] may have to defend [him]self and [his] family from physical attack on [his] life" by the FBI.

 Weaver came to the attention of the Bureau of Alcohol, Tobacco and Firearms ("BATF") in July 1986, when a BATF informant was introduced to him at a World Aryan Congress. The informant met Weaver several times over the next three years. In July 1989, Weaver invited the informant to his home to discuss forming a group to fight the "Zionist Organized Government," referring to the U.S. Government. Three months later, Weaver sold the informant two "sawed-off" shotguns.

 In June 1990, BATF agents approached Weaver to persuade him to become an informant. Weaver refused to become a "snitch," and he was indicted for manufacturing and possessing an unregistered firearm. A warrant was issued for his arrest. BATF concluded that it would be too dangerous for the arresting agents and the Weaver children to arrest Weaver at his mountaintop residence. Instead, in January 1991, BATF agents, posing as stranded motorists, surprised Weaver and his wife when they stopped to offer assistance. Weaver told the arresting agents "nice trick; you'll never do that again."
Weaver was arraigned and was released on a personal recognizance bond. A trial date was set for February 19, 1991.Shortly thereafter, Weaver's wife, Vicki, sent the U.S. Attorney's Office two letters addressed to the servants of the Queen of Babylon, which asserted that "[t]he tyrants blood will flow" and "[w]hether we live or whether we die, we will not bow to your evil commandments."

 A U.S. Probation Officer sent Weaver a letter incorrectly referring to a March 20 trial date. Weaver did not appear for the February trial, and a bench warrant was issued for his arrest. On March 14, 1991, Weaver was indicted for failure to appear for trial.

 The matter was referred to the U.S. Marshals Service, which learned that Weaver had attended Aryan World Congresses and that he and his family were constantly armed. Weaver sent a letter to the local sheriff, stating the he would not leave his cabin and that law enforcement officers would have to take him out. The Weavers "felt as though the end [was] near." Weaver was quoted as threatening to shoot law enforcement officers, who came to arrest him. Weaver and his family remained in a cabin, atop an isolated mountain.

Between March 1991 and August 1992, the marshals undertook a series of efforts to convince Weaver to surrender. They also made plans to arrest Weaver without harm to law enforcement officers or the Weaver family, particularly the children. The marshals exchanged messages with Weaver through intermediaries, until the U.S. Attorney directed that all communications go through Weaver's appointed counsel (with whom Weaver would not speak).
Teams from the Marshals Service Special Operations Group ("SOG") conducted surveillance of the Weavers' mountaintop property to devise methods to take Weaver into custody safely. Surveillance cameras were installed and aerial photographs were taken of the property. The marshals observed that Weaver and his children responded to approaching persons and vehicles by taking armed positions over the driveway leading to the Weaver cabin. During this period, Weaver continued to make statements that he would not surrender peacefully and that his family was prepared to defend him.

The Director of the Marshals Service ordered that no action be taken that could endanger the Weaver children. In the Spring of 1992, the marshals developed an undercover plan to arrest Weaver away from his cabin and family.

A surveillance team of six marshals went to the mountains on August 21, 1992 to look for places to station cover teams for the operation. Toward the end of the surveillance mission, one of the Weaver's dogs began to chase three of the marshals. Marshals stationed at an observation post saw Kevin Harris, an associate of Randy Weaver, Weaver, his thirteen year old son Sammy, and Weaver's daughters, follow the dog. All were carrying firearms.
The marshals retreated. As they approached an intersection of trails known as the "Y," they saw Randy Weaver coming down the trail. They identified themselves and told him to halt, but he turned and ran back up the trail. The dog caught up with Deputy Marshal Cooper. He held the dog at bay with his firearm, but did not shoot for fear of provoking the Weavers. An exchange of gunfire occurred moments later, resulting in the death of Deputy Marshal William Degan, Sammy Weaver, and the dog.

 According to the marshals, the fire fight began when Degan and Deputy Marshal Cooper rose to identify themselves. Kevin Harris wheeled and fired at Degan with a 30.06 rifle. Cooper returned fire and thought he hit Harris, though he had not. Cooper turned his weapon toward Sammy Weaver, but did not fire.
Deputy Marshal Roderick, who was further down the path, heard a shot from his left. Roderick could not see anyone other than Weaver's dog, which was heading in the direction Randy Weaver had gone. When the first shot was fired, the dog turned its head toward the marshals. Roderick feared that the dog would turn and attack him or lead Weaver, Harris, and the others to the marshals. Roderick fired at the dog, killing him.

 Sammy Weaver then shot at Roderick, and Roderick dove into the woods. Roderick later found a bullet hole through his shirt, though he was not wounded. Cooper heard the shots to his right. He rose and fired a three-round burst to provide cover fire for himself so that he could get to Degan, who called for help. Following the last shots, Cooper saw Sammy Weaver run out of view up the trail to the Weaver cabin. He did not think that he had hit the boy.
Randy Weaver and Kevin Harris claimed that they did not know what the dog was chasing, though there is evidence to the contrary. They said that they thought they were pursuing a large animal. They asserted that the first shot fired at the Y was Roderick's attack on the dog, that Sammy fired at Roderick in retaliation, and that Degan and Cooper then shot at Sammy. Harris maintained that the marshals did not identify themselves until the shooting had ended and that he shot Degan to defend Sammy.

 Soon after the shooting, the three marshals, who had been at the observation post, ran to the Y. They came under fire along the way. One marshal, a medic, treated Degan, without success. Shortly thereafter, the marshals heard a barrage of gunfire, followed by screaming and crying. After a brief time, two marshals left the hill to seek help. The three surviving marshals maintained their positions out of fear that, if they moved, they would be shot at. They also refused to leave without the body of the slain marshal. They did not receive additional fire, though in the hours that followed they heard shots when an airplane flew overhead.

 B. Federal Bureau of Investigation - Deployment of Hostage Rescue Team

As soon as the U.S. Marshals Service received word of Marshal Degan's death and the ongoing situation at Ruby Ridge, they sought and received FBI assistance. The FBI had primary jurisdiction for assaults on federal officers, and its Hostage Rescue Team ("HRT") is seen as uniquely skilled for crises. FBI and Marshals Service Headquarters immediately activated command centers to coordinate communications. Special Agent Eugene Glenn was assigned the command and began to arrange for the personnel and equipment required for the crisis. Concurrently, state and local law enforcement and a few FBI agents who were in the immediate area came to the scene and began securing the area.

 The rescue of the marshals was delayed until after dark. A team led by the Idaho State Police reached the marshals at approximately 11:30 p.m., more than twelve hours after the shooting. The rescue effort was ongoing when Glenn arrived and deployed FBI SWAT teams to secure the command post's perimeter. He planned to maintain the status quo until the HRT had arrived. Local law enforcement continued to guard the access road as a crowd of sympathizers and onlookers gathered.

The marshals were successfully removed from the mountain without additional gun fire. Once rescued, they were examined at a hospital and transported to a command post where they were given food and allowed to rest. FBI agents interviewed the marshals, starting the following afternoon.

 C. Rules of Engagement and the Death of Vicki Weaver on August 22

While the rescue of the marshals was underway, the HRT advance team was en route to Idaho with the Associate Director of the Marshals Service, who briefed then about Weaver's background, his failure to appear for trial, the underlying weapons charge, and his professed desire to confront the federal government. During the flight, HRT Commander Rogers and FBI Associate Director Potts drafted special Rules of Engagement to address the danger they perceived. When the HRT arrived in Idaho, Rogers briefed them on the situation and the proposed Rules of Engagement. They established a command site, flew reconnaissance missions, and began to make plans to address the crisis.

 On the afternoon of the shooting, the U.S. Attorney's Office obtained a search warrant and complaints for Randy Weaver and Kevin Harris's arrest on charges relating the the death of Marshal Degan. Assistant U.S. Attorney Ronald Howen, who was assigned to the case, went to the site. Howen remained until Weaver and Harris surrendered a week later. Howen took no role in developing the Rules of Engagement or drafting operations plans, but he did participate in crime scene searches, interviews, and negotiations. The Boundary County prosecutor was also present during most of the crisis but was not involved in the operations planning.

 According to the HRT plan, communication with the occupants of the Weaver cabin, including a surrender demand, was to take place using armored personnel carriers, which would deliver a telephone to the cabin site. The HRT was concerned that the Weavers or sympathizers might be hiding in the woods and planning an ambush. Therefore, teams of HRT sniper/observers were stationed overlooking the cabin before the carrier drove up the hill. Although FBI headquarters had not approved a tactical operations plan, permission was granted to begin negotiations with the Weavers when HRT agents arrived at their positions.

 At 3:30 p.m. on August 22, HRT sniper/observers, along with members of the Marshals Service SOG, began their ascent to the cabin. Before their departure, they were briefed on the Rules of Engagement, which provided that:
1. If any adult male is observed with a weapon prior to the announcement, deadly force can and should be employed, if the shot can be taken without endangering any children.
2. If any adult in the compound is observed with a weapon after the surrender announcement is made, and is not attempting to surrender, deadly force can and should be employed to neutralize the individual.
3. If compromised by any animal, particularly the dogs, that animal should be eliminated.
4. Any subjects other than Randall Weaver, Vicki Weaver, Kevin Harris, presenting threats of death or grievous bodily harm, the FBI rules of deadly force are in effect. Deadly force can be utilized to prevent the death or grievous bodily injury to oneself or that of another.

 No shots had been fired since the previous day, but, while the HRT members were moving to positions overlooking the cabin, other observers reported to FBI headquarters that the subjects were outside the cabin. FBI Headquarters reminded the field commander that the Rules of Engagement would apply. By 5:45 p.m., the sniper/observers reached their positions. The engines of the personnel carriers at the command post below were audible. An unarmed, young female ran from the cabin to a rocky outcropping and returned to the cabin. Within a minute, an unarmed male was seen on the cabin's back deck. About ten minutes later, a helicopter carrying HRT personnel began an observation mission. When the helicopter's engine was started, the female seen earlier and two males ran from the cabin to the outcropping. The last person to emerge was carrying a rifle. Sniper/observer Horiuchi identified him as Kevin Harris.

 A few seconds later Horiuchi saw a person he believed to be Harris near an outbuilding known as the "birthing shed." The man appeared to be scanning above and behind the snipers for the helicopter. Horiuchi believed that he was trying to position himself to shoot at the helicopter from the more protected side of the shed. Horiuchi fired one shot as the man suddenly moved along the side of the shed out of sight. When Horiuchi fired, the man's back was toward Horiuchi and the helicopter. Because the man moved unexpectedly, Horiuchi assumed he missed. The man he aimed at was not Harris, but Weaver, who was slightly wounded.

 Harris and Weaver have maintained that they had no aggressive purpose in leaving the cabin and that Weaver was opening the door to the shed to look at the body of his son.

 After ten or twenty seconds Horiuchi saw the target of his first shot following the other two people as they ran to the cabin. The first two entered the cabin through an open door. Horiuchi fired, aiming slightly in front of the last running man. The bullet went through the curtained window of the open door, fatally wounding Vicki Weaver and seriously injuring Kevin Harris. The sniper testified that he did not know that Vicki Weaver was standing behind the door.
When Commander Rogers, who had been aboard the HRT helicopter, learned of the shootings, he and an FBI negotiator went in a personnel carrier to the cabin to make a surrenderannouncement and to begin negotiations by leaving a telephone. There was no response. A few hours later, due to deterioratingweather conditions, the snipers left their positions and returned to the command post where Rogers debriefed them. The next morning the snipers returned to their positions. Rogers once again went to the cabin area and issued repeated surrender announcements, which included warnings that the outbuildings would be removed if Weaver failed to comply.

 By Sunday evening, there was still no response or indication that the Weavers were going to surrender or negotiate, so the first outbuilding, the birthing shed, was moved. Sammy Weaver's body was discovered in the birthing shed.

 Negotiation efforts continued for days, but were unsuccessful. No one from the cabin picked up the telephone, which was on an armed robot outside the cabin. Although the weapon on the robot was not loaded, Weaver reported that he was afraid that anyone who went outside would be shot. Attempts to intercept conversations inside the cabin were not successful. By Wednesday, no aggressive action had occurred for days, and the events which had preceded the confrontation began to seemless clear. The FBI command received evidence in apparent conflict with the initial impressions about Weaver's background and the circumstances surrounding the shootout. As a result, the FBI command decided to withdraw the special Rules of Engagement and to instate the FBI's standard Deadly Force Policy.

 On Wednesday, August 26, Weaver told a negotiator that he wanted to talk with his sister. When she arrived, attempts to communicate with Weaver were frustrated by her inability to hear Weaver. On Friday evening, August 28, Weaver agreed to speak with Bo Gritz, whom Weaver told that the sniper had killed his wife and injured Harris and himself. Two other private citizens assisted Gritz in resolving the standoff. Gritz and a Weaver family friend carried Vicki Weaver's body out of the cabin. On Sunday, August 30, Kevin Harris surrendered. The Weavers surrendered the following day.

 Searches of the Y were ongoing during the crisis. After the surrender, the cabin and surrounding area were searched. The FBI also sent a team of inspectors to begin an internal inquiry into the sniper shootings.

 D. The Prosecution

 After their surrender, Harris and Weaver were placed under arrest and charged with the murder of Deputy Marshal Deagan. Separate preliminary hearings to determine probable cause for these charges were begun. Before their preliminary hearings concluded, a grand jury indicted Harris for assaulting and murdering Degan and indicted Weaver for aiding and abetting in Degan's death. Thereafter, the magistrate judges terminated the preliminary hearings of Weaver and Harris. Both defendants pleaded not guilty to all charges. On October 1, 1992, a grand jury returned a superseding indictment charging Weaver and Harris with numerous offenses including conspiracy.[FN2] On November 19, 1992 a Second Superseding Indictment was returned charging Weaver and Harris with the same offenses as the previous indictment and alleging additional overt acts.

 In October 1992 the Marshals Service and BATF provided four agents to assist the U.S. Attorney's Office in preparing the case for trial. During the case preparation process continuous issues arose regarding the cooperation of the FBI in preparing the case for trial. Included among these problem areas was the lack of cooperation by the FBI in providing discovery materials to the prosecution and the defense.

 On January 8, 1993, on motion by the defense, the February 2 trial date was extended to allow time for the defense to review evidence and the results of FBI Laboratory tests. The defense complained about the government's failure to provide timely access to evidence and documents, and the trial judge admonished the prosecutors to have the laboratory examination completed quickly.

 The 42 day jury trial began on April 13, 1993. During the trial, the defendants brought to the court's attention problems they had in obtaining documents and information to which they believed they were entitled under either federal law or a discovery stipulation with the government. The most extreme breach of the stipulation involved the late production of the underlying materials and notes related to the FBI Shooting Incident Report which had been produced as the result of an internal inquiry into the sniper shootings. Although the defendants had received the final Shooting Incident Report before trial, during trial the FBI, in response to a defense subpoena, sent by fourth class mail materials that were not part of the documents that the FBI had produced earlier in discovery. These materials included a drawing Horiuchi made days after the shooting. The drawing arrived in Idaho after Horiuchi had completed his testimony, thus requiring his return for additional testimony. The court fined the government for the attorneys fees incurred by the defendants for the lost trial day.

 One of the two prosecutors became ill and did not participate in the final arguments. After deliberation for 20 days, on July 8, 1993, the jury acquitted Weaver and Harris of the murder of Deputy Marshal Degan, the conspiracy charge, and the significant remaining charges. Weaver was convicted on charges of failure to appear for trial and committing an offense while on release. On October 26, 1993, Weaver was sentenced to 18 months incarceration, three years probation and a $10,000 fine. The court issued an Order fining the FBI and criticizing it for its failure to produce discovery materials, its failure to obey orders and admonitions of the court, and its indifference to the rights of the defendant and to the administration of justice.
On December 18, 1993, Randy Weaver was released from incarceration.

FOOTNOTE FOR SECTION 3. FACTUAL SUMMARY

2. The indictment charged violations in 18 U.S.C. 2, 3, 111, 115, 371, 933 (g) (2), 924 (c) (1), 1071, 1111, 1114, 3146 (a) (1), 3147, 26 USC 5861 (d), and (f)




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