A. Investigation of Weaver by Bureau of Alcohol, Tobacco and Firearms

1. Introduction

The events that led to the death of three persons at Ruby Ridge, Idaho in August 1992 and to the subsequent prosecution of Randall ("Randy") Weaver and Kevin Harris had their origin with an investigation by the Bureau of Alcohol, Tobacco and Firearms ("BATF"). Serious allegations have been made about the role of BATF in the Weaver matter. Included among these allegations are that a BATF informant entrapped Weaver into selling illegal weapons; that a BATF reward system created the incentive for the informant to entrap Weaver; and that BATF and the informant tired to conceal this future compensation arrangement from the defense, the court and the U.S. Attorney's Office.[FN3] It has also been alleged that BATF exaggerated to the U.S. Marshals Service, the U.S. Attorney 's Office, and the court the extent of Weaver's involvement with the Aryan Nations and the Order and that federal law enforcement unconstitutionally targeted Randy Weaver for prosecution because of his religious views.[FN4]

2. Statement of Facts

a. Early Law Enforcement Contacts with Randy Weaver

Randy Weaver first came to the attention of federal law enforcement personnel in 1985 as a result of alleged threats he made against President Reagan, Idaho Governor John Evans, and certain law enforcement officials.[FN5] The U.S. Secret Service investigated the allegations and interviewed Weaver. During this investigation, it was learned that Weaver was frequently visited by Frank Kumnick, who was associated with members of the Aryan Nations, a white-supremacist group.[FN6] Kumnick was described as the "mentor" for Weaver's "far right wing" beliefs. [FN7] Weaver and Kumnick had allegedly spoken of burning churches and had made threats against Catholics and Jews.[FN8] In addition, Weaver had been seen with Richard Butler, leader of a local Aryan Nations Church.[FN9]

The Secret Service was also told that Weaver had a cache of weapons, including a number of semi and fully automatic handguns and rifles,[FN10] and that he had access to explosives and to "an unlimited amount of ammunition."[FN11] Weaver had been described as a person with a "paranoid defensive attitude,"[FN12] who had chosen his mountaintop residence "for survivalist purposes."[FN13] One Bonners Ferry resident reported that Weaver had "rigged his driveway with bombs."[FN14] Another person interviewed by the Secret Service stated that Weaver had spoken of the world ending in two years "when my home will be under siege and assaulted."[FN15]

Secret Service agents interviewed Weaver on February 12, 1985. At that time, he denied threatening the President, the Governor, or churches. He also denied having any affiliation with the Aryan Nations or its members.[FN16] Weaver said that he had "no time for Aryan Nation's preachers" and that his religious beliefs were "strictly by the bible." He acknowledged knowing Frank Kumnick, but said that Kumnick was associated with the Covenant, Sword and Arm of the Lord. Weaver informed the agents that he had served for three years as an Army Special Forces Green Beret and that he had been an Army engineer.[FN17] He stated that the Bible gave him the right to kill, if necessary, to defend his family,[FN18] but added the federal authorities were welcome on his property "in spite of stories that had circulated about him and his family."[FN19]

On February 28, 1985, Randy and Vicki Weaver filed a handwritten affidavit with the Boundary County Clerk claiming that persons around Deep Creek, Idaho were conspiring to endanger the Weaver family and to precipitate an attack on Randy Weaver's life. The affidavit alleged that Weaver's "accusers" had made false statements about his connections with the Aryan Nations and his ownership of illegal weapons and that they had wrongfully alleged that he had threatened the President and the Pope. The Weavers also stated that these falsehoods were designed to provoke the FBI into storming their home. Weaver expressed fear that he would be killed or arrested for assault of a federal officer, if he tried to defend himself, and he gave "legal and official notice that [he] believe[d] [he] may have to defend [him]self and [his] family from physical attack on [his] life."[FN20]

In May 1985, Weaver sent a letter to President Reagan claiming that his neighbors had sent the President a threatening letter under Weaver's name. Weaver apologized for their "evil" in involving the President in their efforts to harass Weaver. On the same date, Vicki Weaver sent a letter to the Spokane Field Office of the U.S. Secret Service demanding a written apology from the Secret Service.[FN21] The federal government never filed any charges against Weaver for the alleged threats made against the President, the Governor, or others.[FN22]

b. BATF Contact with Weaver

Weaver first came to the attention of the BATF in July 1986 during its investigation of a series of bombings in Coer d'Alene, Idaho in which the Aryan Nations was believed to be involved. BATF asked Kenneth Fadeley, a confidential informant, to assist its investigation by obtaining information about people attending an upcoming World Aryan Congress who might be engaged in illegal activities.[FN23] Thereafter, Fadeley portrayed himself as a weapons dealer who catered to motorcycle gangs and, in this role, managed to be introduced to high level members of the Aryan Nations in Northern Idaho.[FN24]

In July, 1986, Fadeley attended the World Aryan Congress at Hayden Lake, Idaho. During this assembly, Fadeley was introduced to Weaver, who was at that time of no particular investigative significance to BATF.[FN25]

Six months later, in January 1987, Fadeley met with Frank Kumnick, who was suspected of significant firearms trafficking. Fadeley wore a hidden taper recorder to this meeting. Randy Weaver accompanied Kumnick. Fadeley had met with Kumnick more than a dozen times before, and although Weaver's name had been mentioned numerous times, Fadeley had not expected Weaver at this meeting.[FN26] In Weaver's presence, Kumnick, after suggesting that Fadeley was a government informant, held a gun to Fadeley's head and ran an electronic stud finder over Fadeley's body to search for a hidden microphone or recorder. Kumnick did not find the recorder.[FN27] At this meeting, Weaver gave Fadeley no indication that he was predisposed to selling illegal weapons. [FN28]

At the World Aryan Congress in July 1987, Fadeley again met Weaver, who was accompanied by his wife and children. Weaver mentioned to Fadeley that it was a "struggle" to provide for his family. Weaver also declared that he did not trust the leaders of the Aryan Nations and that he did not agree with the actions of Richard Butler, leader of the Aryan Nations.[FN30] After this contact, Fadeley continued to view Weaver simply as one of the many attendees at the World Aryan Congress.

c. Sale of Weapons by Weaver to BATF Informant

Fadeley and Weaver met again at the July 1989 World Aryan Congress, where Weaver was one of the speakers.[FN31] Fadeley told Weaver that his gun "business [was] busy." In response, Weaver did not offer to sell Fadeley firearms, but he did invite Fadeley to a house he was renting to discuss forming a group to fight the "Zionist Organized Government" a term used by Aryan nations members to refer to the U.S. Government.[FN32] According to Weaver, the proposed group was to include Kumnick and Chuck Holwrth. Holwrth, who had been convicted of an explosives violation an had formed an Aryan Nations splinter group in Montana,[FN33] was of "continuing investigative interest" to the BATF. After learning of Weaver's plan to include Holworth in this group, the BATF began to view Weaver as a possible point of introduction to Holworth.[FN34]

On September 8, 1989, at BATF's request, Fadeley telephoned Weaver and arranged to meet him on October 11.[FN35] Fadeley did not record his conversations with Weaver during the October 11 meeting. At the meeting, Weaver asked Fadeley how his business was going. Fadeley replied that he was "extremely busy" and that he had sold all his "product." Weaver explained that he would like to assist Fadeley and that "he was ready to go to work for [him]."[FN36] Fadeley then told Weaver he had a source to whom he dealt guns. Weaver then asked what the most popular items were, and Fadeley described the "street" weapons he thought he could sell, including shotguns. In response, Weaver said that he could supply four or five shotguns per week. Fadeley recalled Weaver representing that he could get any size shotguns that Fadeley wanted. According to Fadeley, Weaver said "just tell me what you want and what size and I'll supply what you want." Weaver added that there would be "no paper," that is, the weapons would not have registration documents.[FN37]

As the two men left the meeting, Fadeley walked to Weaver's truck where Weaver showed Fadeley a shotgun and indicated a spot on the barrel where he thought it could be cut. Fadeley pointed to the weapon and said "about here"[FN38] to which Weaver asserted that he could supply weapons like that "all day long."[FN39] Following the meeting, Special Agent Herbert Byerly, Fadeley's BATF contact agent, conducted various records checks on Weaver.[FN40]

On October 13, 1989, Fadeley telephoned Weaver from a BATF office and recorded the conversation to confirm his report of the October 11 meeting. During this discussion, Fadeley and Weaver used agreed upon code words and referred to weapons as "chain saws."[FN41]

On October 24, 1989, Weaver met with Fadeley, who was wearing a miniature tape recorder and an electronic transmitter. At that time, Weaver gave Fadeley two shotguns, one with a 13 inch barrel, the other with a 12-3/4 inch barrel. Weaver told Fadeley that he had cut the shotgun barrels himself, "[s]itting under a shade tree with a vise and a hacksaw," and added that, "when I get my workshop set up I can do a better job."[FN42] Fadeley paid Weaver $300.00 for the weapons. When Weaver requested an additional $150.00 for the weapons, Fadeley told him that he would give him the additional money at the next purchase.[FN43] Fadeley then proceeded to tell Weaver that "[t]here is money to be had, and it looks like [you] did a real nice job". He then asked Weaver, "You figured four or five a week?" to which Weaver replied, "yeah, or more." Weaver repeated that there would be no paper trail on the weapons.[FN44]

Fadeley met Weaver again on November 30, 1989 with the intent of arranging a trip to Montana to meet Holworth. At this time, Weaver announced that he had five additional sawed-off shotguns available for purchase. When Fadeley told him that he had not brought enough money to pay for them, Weaver responded, "just figure on more cash next time." Thereafter, Weaver asked Fadeley if he had "a cover, legit business." In addition, Weaver told Fadeley that he was not able to go to Montana that day, but said that "the next time that I tell you I'll go with ya . . . I'll make sure I'll go with you." Fadeley paid Weaver $100 toward the balance of the previous purchase of two sawed-off shotguns.[FN45] Following this meeting, Byerly instructed Fadeley to have no additional contact with Weaver.[FN46]

d. Delay in Obtaining Indictment and BATF Efforts to Enlist Weaver as an Informant

On November 24, 1989, Byerly discussed the Weaver gun sale with Assistant U.S. Attorney Tony Hall from the U.S. Attorney's Office in Boise ("USAO"). Hall requested Byerly to submit a criminal violation report to the USAO.[FN47] Five months later, on May 21, 1990, Byerly submitted a case report to the USAO recommending that Weaver be prosecuted for the sale of the sawed-off shotguns.[FN48]

One month later, in June 1990, BATF Agents Byerly and Gunderson drove to the Weaver property to speak with Weaver to determine if he might be willing to cooperate in their investigation of Aryan Nations members. They were met by Weaver's daughter, Sara, who had a semi-automatic pistol strapped to her hip, and by his son, Sammy, who carried a large hunting knife. Byerly and Gunderson did not identify themselves and left when they determined that Randy Weaver was not there.[FN49]

After leaving the mountain, Byerly and Gunderson noticed Randy Weaver's truck outside a motel in Sandpoint, Idaho and stopped to talk with him. Thereafter, they approached Weaver, identified themselves, showed Weaver a photograph of the sawed-off shotguns he had sold to Fadeley and told him that they had a tape recording of the transaction. Weaver declined their invitation to listen to the tape. Byerly explained to Weaver that the USAO knew of the illegal weapons sale and that Weaver could help himself by providing information to BATF about the illegal activities of Aryan Nations members. He told Weaver that his assistance would be brought to the U.S. Attorney's attention.[FN50] At the end of the conversation, Byerly gave Weaver his telephone number and told him that they would wait for Weaver to come to the BATF office to discuss cooperating with them. Weaver responded that he would not become a "snitch."[FN51]

Soon after this contact with Weaver, Assistant U.S. Attorney Howen told Byerly that he planned to present an indictment to the grand jury charging Weaver with firearms violations but that the timing of the indictment would have to be coordinated with the other matters he was handling.[FN52] On December 13, 1990, seven months after BATF referred the case to the USAO, a federal grand jury in the District of Idaho indicted Weaver for manufacturing and possessing an unregistered firearm.

e. Arrest and Arraignment of Weaver on Weapons Charges

After the issuance of the arrest warrant, BATF conducted an evaluation of Weaver and concluded that it would be too dangerous to the arresting agents and to the Weaver children for BATF to arrest Weaver at his residence.[FN53] Therefore, BATF agents decided to carry out a ruse to arrest Weaver by surprise away from his home. On January 17, 1991, two agents, posing as stranded motorists, stopped a pickup camper on a bridge near the Weaver's residence, raised the hood, and pretended to examine the engine. Byerly, other BATF Agents, and Boundary County Sheriff Whittaker hid in the back of the camper. Shortly thereafter, Randy and Vicki Weaver stopped their truck and approached the camper. The BATF agents then surprised Weaver and placed him under arrest. In the process, Weaver attempted to grab one of the agent's sidearms. Later, Weaver told the arresting agents "nice trick; you'll never do that again."[FN54] After making the arrest, the arresting agents discovered that Weaver had a pistol in his front pants pocket and Vicki Weaver had a revolver in her purse, which she had left in their pickup truck.[FN55]

3. Discussion

It has been alleged that BATF singled out Randy Weaver because he shared many of the political and religious beliefs associated with the Aryan Nations, and that BATF entrapped Weaver in order to coerce him to become an informant.[FN56] We found insufficient evidence to support these claims.

a. The Decision of BATF to Target Weaver

This investigation found no evidence that BATF improperly targeted Weaver because of his religious or political beliefs. Instead, the evidence indicates that BATF became interested in Weaver not because of his personal views but rather because he was acquainted with members of the Aryan Nations, who were suspected of being involved in bombings that had occurred in Northern Idaho. Indeed, BATF, which knew of Weaver's beliefs for more than three years before the sale of the shotguns in October 1989, had taken no action to target Weaver for investigative focus during that period. Byerly told this inquiry that the original purpose in pursuing the transaction with Weaver was not to recruit Weaver as an informant, but rather to determine the degree of his involvement in illicit weapons trafficking by the Aryan Nations.[FN57] We find nothing improper in the BATF plan.

We also examined why the government prosecuted Weaver for the alleged gun sale while deciding not to prosecute Frank Kumnick, who had also sold a "short-barrel" shotgun to Fadeley. Byerly told this inquiry that he recommended to the USAO that Kumnick not be charged because an indictment would ruin Fadeley's cover, thus ending his usefulness as an informant.[FN58] Although this may explain why Kumnick was not initially prosecuted it fails to explain why he was not prosecuted after Fadeley's cover was "blown" in March 1990. Notwithstanding the failure to explain why Kumnick was not prosecuted after March 1990, we found no evidence that this difference in treatment was improperly motivated.

Byerly told this inquiry that he decided to solicit Weaver's cooperation, rather than Kumnick's, because he believed that Weaver had, or was in a better position to develop, contacts with BATF targets, such as Chuck Holworth and Richard Butler, leader of the Aryan Nation's Church in Northern Idaho. In addition, Byerly came to view Kumnick as a "boastful showoff" who was not involved in "significant firearms trafficking."[FN59] We accept Byerly's reasons for seeking Weaver's cooperation and find nothing improper about his decision to approach Weaver as a possible source of information about illegal acts committed by members of the Aryan Nations.

b. Possible Entrapment by the BATF Informant

Defense counsel have charged that Weaver "was induced by federal authorities" into selling illegal weapons, that is, the government entrapped Weaver into unlawful conduct.[FN60] To establish the defense of entrapment, it must be shown that the defendant was not predisposed to commit the criminal act.[FN61] A principal factor in determining whether a defendant was entrapped is whether the defendant evidenced reluctant to commit the offense but was overcome by repeated government persuasion.[FN62]

The only accounts of Weaver's weapons sales that we have are the recorded conversations between Weaver and informant Fadeley and the statements of Byerly and Fadeley made at trial and to this investigation. We did not have the benefit of any statements from Randy Weaver, who did not testify at trial and who declined our invitation for an interview.

Based on the information available to us, there is no evidence that Weaver proposed or was interested in selling weapons before the October 1989 meeting with Fadeley. Although Fadeley had seen Weaver on a number of occasions with a variety of weapons, Weaver apparently had never said that he wanted to sell guns. Nor is there any indication that Fadeley repeatedly proposed that Weaver sell weapons to him and that Weaver had refused.

Weaver claimed in a recorded conversation that Fadeley "approached [him] and offered [him] a deal."[FN63] Fadeley later replied that the person who had told Weaver that Fadeley was a federal agent was a "scumbag."[FN64] Fadeley told the Department of Treasury investigators that Weaver's statement was

a complete fabrication . . . . I had never approached him or offered him any deal. He made all the overtures. I did not confront him on this [during the meeting]. I felt that if I did, he may take that as a signal that I was an informant or police and I would be in danger.[FN65]

However, Fadeley admitted that he had shown Weaver where to cut the shotgun in response to Weaver's saying, "Just tell me what . . . size [shotgun] and I'll supply what you want."[FN66] Unfortunately, this meeting was not tape recorded, nor did Fadeley report to Byerly, his BATF supervisor, that he had given Weaver this guidance.[FN67]

We are troubled by the lack of first-hand information about the events immediately before the first weapons sale. Furthermore, the crucial meeting, at which Weaver allegedly raised the idea of selling weapons to Fadeley, was not recorded. The only account of the meeting comes from Fadeley. Although in the recorded November 30 conversation, Weaver expressed additional interest in providing weapons to Fadeley,[FN68] we cannot conclude, on the evidence before us, that Weaver was coerced or unduly enticed into selling weapons to Fadeley.

c. Delay in Obtaining Indictment

It has been alleged that Weaver's indictment on weapons charges was delayed so as to give BATF an opportunity to "turn" Weaver, that is, to make him a BATF informant. Although BATF was interested in securing Weaver's cooperation, we have found no evidence that the indictment was delayed to help this effort.

Byerly apparently waited to press the weapons charge after the October 1989 sale because BATF did not want to expose Fadeley as an informant.[FN69] However, in March 1990, members of the Aryan Nations accused Fadeley of being an informant, effectively ending the covert operation.

In early May 1990, Byerly submitted a case report to the U.S. Attorney's Office recommending that Weaver be prosecuted for the sale of the sawed-off shotguns. Byerly approached Weaver to seek his cooperation in June 1990. Assistant U.S. Attorney Howen told Byerly that the weapons charge against Weaver would be presented to a grand jury, but that the case would be handled in line with his other priorities.[FN70] Seven months later, the matter was presented to a grand jury and an indictment was returned in December 1990.

This investigation has uncovered nothing that suggests misconduct in the span between the weapons sale in 1989 and the indictment in December 1990. Weaver's indictment was evidently not a high priority of either BATF or the USAO, and there is no evidence that the charge was treated as anything but a routine matter.

4. Conclusion

It is our conclusion that the investigation which led to Weaver's indictment for the unlawful sale of two sawed-off shotguns, and the decision to indict were proper. We found no evidence that Weaver was unfairly targeted by BATF at the outset or that the delay in indicting him was improper. Although we are troubled by the sequence of events which immediately preceded the sale of the shotguns to the confidential informant, we cannot conclude, based on the evidence before us, that Weaver was coerced or unduly enticed into selling the sawed-off shotguns.


3. The controversy that erupted at trial concerning the compensation arrangement between BATF and the informant is discussed in Section IV (O) of this report.

4. See memo by AIIP Daniel J. Wehr to Insps. Roger A. Nisley and Paul E. Mallett, August 24, 1993 (interview with Gerry Spence), at 2-3; Letter from Senator Larry E. Craig to Lloyd Bentsen, Secretary of the Treasury, July 22, 1993; Letter from Senator Larry E. Craig to Janet Reno, Attorney General, July 23, 1993. The Weavers raised a similar issue during the standoff with the FBI in August 1992. Sara Weaver wrote in a statement dated August 30, 1992 that, "Our situation is not over a shotgun but rather our racial and political beliefs."

5. FD-302 Interview of Terry Kinnison, January 21 & 31, 1985.

6. Kinnison FD-302, January 21, 1985.

7. FD-302 Interview of Sam Strongblood Woholi, January 31, 1985.

8. Kinnison FD-302, January 28, 1985; Boundary County Sheriff Bruce Whattaker has been quoted as saying that Weaver told him that "the real Jews of the Bible are we white Christians and ... the false Jews... should be eliminated." "Standoff with Police Enters Second Year," San Francisco Examiner, March 27, 1992.

9. Report of Investigation by Terry R. Driskill, March 1, 1985.

10. Woholi described Randy Weaver's wife Vicki, as a "crack shot who always has a weapon available." Woholi added that Weaver's son, Sammy, handled a weapon well and normally carried a .22 rifle. Anyone approaching the Weaver residence would thus "have three weapons brought to bear on them, Weaver's, his wife's, and his sons's." Woholi FD-302, February 5, 1985.

11. Terry Kinnison provided the FBI with a list of weapons he had observed while visiting the Weaver home: two .22 caliber revolvers; three .22 rifles; a semi-automatic .45 caliber handgun; a .357 handgun; one or two .30-06 rifles; a Riger Mini-14; a .223 caliber rifle; a pump-action shotgun with a factory shortened barrel; and a Heckler Koch .223 caliber semi-automatic with a tripod and adapter for full automatic functioning. Kinnison reported that Weaver had thousands of rounds of ammunition. Kinnison FD-302, January 21, 1985.

12. Kinnison FD-302, February 5, 1985. See Transcript of conversation of Randy Weaver, Kenneth Fadeley and Frank Kummick January 20, 1987, at 36 ("You know the Bible says don't trust no man.")

13. FD-302 Interview with John Fritz, January 18, 1985. Fritz had heard that Weaver had automatic weapons and a night scope and that he "likes the high ground."

14. FD-302 Interview of Kermit Black, January 18, 1985.

15. Wolholi FD-302, February 5, 1985. In a 1983 newspaper interview, Weaver discussed his plan to move to Northern Idaho to live in an isolated hideaway "and survive the coming 'Great Tribulation,'" Waterloo Courier, January 9, 1983, B-1.

16. This claim would later be contradicted. See Report of Investigation by W. Warren Mays (interview of Chris Colgrave), March 5, 1991, at 1 ("Colgrave stated that Weaver claimed membership in the Aryan Nation"); Report of Investigation by W. Warren Mays (interview with Susan Thompson), March 5, 1991 at 1. In 1990, Weaver gave Boundary County Sheriff Bruce Whittaker literature supporting the Aryan Nation's views. Report of Investigation by David Hunt and W. Warren Mays, March 7, 1991, at 4. The Postmaster for Naples, Idaho confirmed that Weaver had received "Aryan Nation... as well as other white supremacist, anti-goverment type literature" at his post office box. Report of Investigation by W. Warren Mays, March 5, 1991.

17. It was subsequently learned that this assertion was false. Weaver's military "DD-214" shows that he may have received some demolition training in an Army engineering unit, but that he was neither a Green Beret nor a member of the Special Forces. Sworn Statement of David Hunt, February 14, 1994, at 2, 6; FD-302 Interview of W. Warren Mays, October 5, 1993, at 2, 4.

18. Letter from Patrick F. Sullivan, Assistant Special Agent in Charge, U.S. Secret Service (Seattle) to Chris Nelson, Special Agent in Charge, BATF (Seattle), August 28, 1992, at 2.

19. FD-302 Interview of Randy Weaver, February 12, 1985, at 2.

20. Affidavit of Randy and Vicki Weaver, February 23, 1985.

21. See Letter from Patrick F. Sullivan, to Chris Nelson, August 28, 1992, at 2.

22. Terry Kinnison, the neighbor who reported the threats to the Bounday County Sheriff's Office, later notified the sheriff that Weaver had fired shots at him. Memorandum by Ronald Evans to Tony Perez, February 20, 1991. Report of Investigation by W. Warren Mays, Feburary 21, 1991, at 2.

23. Sworn Statement of Herbert G. Byerly, December 20, 1993, at 1-2; [G-J]

24. Fadely obtained information against a number of Aryan Nations members regarding the Couer d'Alene bombings, including David R. Dorr, Chief of Security for the upcoming Congress. Dorr and several others were later arrested and charged with the bombings. Byerly Sworn Statement, at 1-2.

25. Id. at 2.

26. Testimony of Herbert G. Byerly in United States v. Weaver, No. CR-92-080-N-EJL, April 21, 1993, at 8-9 (hereinafter cited as "Trial Testimony").

27. Transcript of Conversation Between Fadeley, Weaver and Kimnick on January 20, 1987, at 4-6. See Byerly Sworn Statement, at 2.

28. Trial Testimony of Kennth Fadeley, April 20, 1993.

29. [G.J.]

30. Fadeley Trial Testimony, April 20, 1993, at 60-69.

31. In the interim, Weaver had run unsuccessfully in the Republican primary for sheriff of Bounday County. During his campaign, he promised to enforce only those laws the people wanted, and he distributed cards that said "get out of jail free." Weaver lost the primary, 384 votes to 102.

"Survivalist Refuses to Come in From Cold," The Oregonian, October 1, 1991, C8; Feds Have Fugitive 'Under Out Nose'," Spokesman Review (Spokane), March 1, 1992, A19.

32. Fadeley Trial Testimony, April 20, 1993, at 45, 82-90.

33. ID. at 103, 112.

34. Byerly Sworn Statement, December 20, 1993, at 3-4.

35. Fadeley Trial Testimony, April 20, 1993, at 100-02.

36. Report by Byerly of Interview of Kenneth Fadeley, February 20, 1990, at 1. See Fadeley Trial Testimony, April 20, 1993, at 103, 112. [G. J.]

37. Report by Byerly of Interview of Kennth Fadeley, February 8, 1990, at 1 (herinafter cited as "Byerly Report"). Weaver later repeated this final statement in a recorded conversation. Transcript of Conversation Between Fadeley and Weaver, October 29, 1989, at 12. Fadeley told Weaver "the smaller [the weapon] the better." Weaver asked, "You mean 12 to 14 inches," to which Fadeley replied, "Yeah." Byerly Report, Feburary 8, 1990, at 1.

38. Fadeley Trial Testimony, April 20, 1992, at 105.

39. Byerly Report, February 8, 1990, at 1. According to Byerly, Fadeley said that Weaver showed Fadeley a shotgun and said he could cut the barrel off to about two inches in front of the slide. Byerly's report does not mention Fadeley's showing Weaver where to cut the barrel. Byerly told this investigation that he did not know "who may have instructed Weaver as to how to saw off the shotguns." Byerly Sworn Statement, December 20, 1993, at 6.

40. Byerly Trial Testimony, April 20, 1992, at 27.

41. [G.J.] Transcript of Conversation Between Fadeley and Weaver, October 13, 1989, at 2.

42. Transcript of Conversation Between Fadeley and Weaver, October 24, 1989, at 3, 6. The stocks on both weapons had also been cut. Section 5681 of Title 26 of the United State Code criminalizes that possession of unregistered firearms and the alteration of firearms by anyone not in the business of manufacturing firearms. Section 5845 (a) explains that the term "firearms" includes shotguns with barrels of less that 18 inches.

43. Byerly Report, February 28, 1990, at 2; Byerly Trial Testimony, April 20, 1993, at 32-34; Transcript of Conversation Between Fadeley and Weaver, October 24, 1989, at 4.

44 Id. at 6. Fadeley had originally planned to go with Weaver to Montana that day, however, because BATF was unable to arrange security, the trip was postponed. Id. at 6-13; Fadeley Trial Testimony, at 135.

45 Transcript of Conversation Between Fadeley and Weaver, November 30, 1989, at 6-12, 24, 31. Weaver explained that someone in Spokane had told him that Fadeley was "bad," meaning that Fadeley was a policeman. Weaver claimed, "You approached me and offered me a deal." Fadeley responded, "This scumbag . . . He's lying through his teeth cause I'm not a badge." Id. at 22. Later, Fadeley told Weaver "if you want to believe somebody else . . . it's been nice doing business with you, have a nice life." Weaver said that he would be less suspicious of Fadeley if their two families could meet, adding, "That's all I care about, is my family." Id. at 13, 15, 21-23.

46 Byerly Trial Testimony, April 20, 1992, at 46.

47 Statements of Byerly, January 14 & February 28, 1990. Byerly continued to obtain background information on Weaver. In about March 1990, Byerly met with Weaver's neighbors, the Raus, who complained that the Weavers had fired weapons at their property. Byerly Sworn Statement, December 20, 1993, at 8.

48 The report included a letter from Patrick Sullivan, a Special Agent in the Secret Service's Seattle Office, summarizing the 1985 Weaver investigation. This letter contained the only reference to Weaver's affiliation with the Aryan Nations in the case report.

49 Byerly Sworn Statement, December 20, 1993, at 8-9.

50 Byerly observed that Weaver was wearing an Aryan Nations belt buckle and jacket emblem. Id. at 10-11.

51 Id. at 10. Vicki Weaver described this encounter in a letter, dated June 12, 1990, addressed to the "Aryan Nations & all our brethren of the Anglo Saxon Race." She wrote:

We cannot make deals with the enemy. This is a war against the sons of Isaac. Yahweh our Yashua is our Savior and King . . . . If we are not free to obey the laws of Yahweh, we may as well be dead! Let Yah-Yashua's perfect will be done. If its our time, we'll go home. If it is not we will praise his Separated name!

52 Id. at 10; Transcript of Interview of Ronald Howen, November 22-23, 1993, Tape 2, at 41 (hereinafter cited as "Howen Interview").

53 Report of Investigation by Cluff (interview of Byerly), February 20, 1991, at 6; Memo from Evans to Perez, February 20, 1991, at 2.

54 Memo by Evans to Hunt, Cluff, and Mays, February 11, 1991; Byerly Sworn Statement, December 20, 1993, at 12.

55 See Pretrial Services Report, United States v. Randall C. Weaver, January 18, 1991. Sheriff Whittaker said that Vicki Weaver was not charged with carrying a concealed weapon because "that law is rarely enforced in the Boundary County area, because of peoples proclivity to wear or carry weapons. . . ." FD-302 Interview of Bruce Whittaker, November 20, 1993, at 3.

56 See Memo by AIIP Daniel J. Wehr to Insps. Roger A. Nisley and Paul E. Mallett, August 24, 1993 (interview with Gerry Spence), at 2-3.

57 Byerly Sworn Statement, December 20, 1993, at 6.

58 Byerly spoke about this with Assistant U.S. Attorney Hall. Byerly Trial Testimony, April 21, 1993, at 31-33. He later told the Department of Treasury that he had misspoken at trial and that he had discussed the issue of Kumnick's prosecution with Assistant U.S. Attorney Howen. Report by Donald Devane, Investigator, U.S. Treasury OIG, of Interview of Byerly, December 17, 1993 (hereinafter cited as "Devane Report").

59 Byerly Sworn Statement, December 20, 1993, at 26-27.

60 Memorandum in Support of Defendants' Motions, January 6, 1993, at 2 (hereinafter cited as "Defendants' Memorandum").

61 See Hampton v. United States, 425 U.S. 484, 488 (1976).

62 United States v. Busby, 780 F.2d 804, 805 (9th Cir. 1986).

63 Transcript of Conversation Between Fadeley and Weaver, November 30, 1989, at 22.

64 Id.

65 Affidavit of Kenneth Fadeley, December 7, 1993, at 4.

66 Fadeley Trial Testimony, April 20, 1993, at 105; Report by Byerly of Interview of Kenneth Fadeley, February 28, 1990, at 1.

67 See Byerly Report, February 8, 1990, at 1; Byerly Sworn Statement, December 20, 1993, at 6.

68 Weaver evidently knew that the transaction with Fadeley was illegal, since he asked Fadeley if he had "a cover, a legit business." See Transcript of Conversation Between Fadeley and Weaver, November 30, 1989, at 6-12, 24, 31.

69 Byerly has also asserted that during this period he was working on other cases that required attention. Devane Report, January 14, 1994.

70 Howen Interview, Tape 1, at 13, Tape 2, at 41.


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