A. Overview

In February 1993, the Office of Professional Responsibility ("OPR") of the U.S. Department of Justice (the "Department") was informed of allegations made by defense counsel for Randall ("Randy") Weaver and Kevin Harris in the criminal case of United States v. Weaver which was pending in the federal district court in Idaho. Defense counsel alleged that employees of several components of the Department had engaged in criminal and professional misconduct during the investigation, apprehension, and prosecution of Randy Weaver and Kevin Harris. The Department decided to defer action on thismatter until the criminal trial was completed.

In July 1993, a jury acquitted Weaver and Harris of charges stemming from the murder of a federal officer. Following the acquittal, numerous additional allegations were raised by defense counsel an other sources against the Bureau ofAlcohol, Tobacco and Firearms ("BATF"), the U.S. Marshals Service ("Marshals Service") , the Federal Bureau of Investigation ("FBI" or "Bureau") and the U.S Attorney's Office for the District of Idaho ("USAO"). Included among these allegations were claims that Department employees had unlawfully caused the deaths of Sammy and Vicki Weaver, had taken actions that had obstructed justice, had committed perjury and had engaged in other criminal and ethical misconduct. In late July 1993, attorneys from OPR and the Criminal Division of the Department, assisted by inspectors form the FBI, began an investigation of these allegations.

This report details the results of this investigation and traces chronologically the events that occurred in the Weaver matter. The early sections of the report focus on Weaver's sale of illegal firearms to a BATF informant, BATF's unsuccessful attempt to enlist Weaver as an informant, thesubsequent governmental delay in seeking an indictment on the firearms violations, and Weaver's arrest on weapons charges followed by his subsequent failure to appear for trial on those charges. Another area of investigative inquiry focuses on the efforts of the Marshals Service to apprehend Weaver. These efforts culminated in the August 21, 1992 gun battle at Ruby Ridge which took the lives of Deputy Marshal William Degan and Weaver's son, Sammy Weaver. Next, the report contains adiscussion of the involvement of the FBI in the Weaver matter, including its initial intervention in the crisis, its responsibility for the death of Vicki Weaver and wounding of Kevin Harris on August 22, 1992, its handling of the crisis including its attempts to end the week-long standoff, its handling of the crime scene searches and its subsequent activities in assisting the USAO in preparing the Weaver casefor trial. Finally, the last section of the report addresses the handling by the USAO and the investigative agencies of the prosecution of Weaver and Harris including representation madeby the U.S. Attorney to the court prior to the beginning of Harris' preliminary hearing, the conduct of the Assistant U.S. Attorney before the grand jury and the untimely disclosure of critical information to the defense.

We found that many of the allegations of misconduct were not supported by the evidence. However, we did find merit in some of the more serious charges. As a result, we have asked that the appropriate component of the Department examine for prosecutive merit the conduct of the FBI sniper/observer who fired the shots on August 22, 1992. In addition, because our investigation indicated that Assistant U.S. Attorney Ronald Howen took certain questionable actions during the investigation and prosecution of the Weaver case, we have recommended that the Executive Office for United States Attorneys examine our analysis of his conduct and take whatever administrative action it deems appropriate. Finally, we have formulated a series of recommendations that address the problems that we reviewed or uncovered during our investigation.

B. Significant Findings

In October 1989, Randy Weaver sold illegal weapons to a BATF informant. When BATF agents later attempted to enlistWeaver as an informant in their investigation of the AryanNations, Weaver refused to cooperate. Seven months later, thegovernment indicted Weaver for the illegal weapons sales. We have found no evidence to support the claim that BATF targeted Weaver because of his religious or political beliefs. Similarly, we found insufficient evidence to sustain the charge that Weaver was illegally entrapped into selling the weapons.

When Weaver was arraigned on the weapons charges inJanuary 1991, he was told that his trial would commence onFebruary 19, 1991. Two weeks later, the court clerk notified the parties that the trial date had been changed to February 20,1991. Shortly thereafter, the U.S. Probation Office sent Weavera letter which incorrectly referenced his trial date as March 20, 1991. After Weaver failed to appear for trial on February 20, the court issued a bench warrant for his arrest. Three weeks later, on March 14, a federal grand jury indicted Weaverfor his failure to appear for trial. We found that: the government, especially the USAO, was unnecessarily rigid in itsapproach to the issues created by the erroneous letter; that the USAO improvidently sought an indictment before March 20, 1991;

From February 1991 through August 1992, the Marshals Service was involved in efforts to apprehend Weaver to stand trial for the weapons charges and for his failure to appear for trial. These efforts included gathering information about Weaver and developing a plan to arrest him. Base on information that it collected, the Marshals Service learned that for many years Weaver had made statements about his intent to violently confront federal law enforcement officials. As a result, the Marshals Service concluded that Weaver intended to resist violently governmental attempts to arrest him. Thereafter, the Marshals Service investigated and carefully considered alternatives that would enable it to arrest Weaver without endangering his family or law enforcement personnel. It concluded that an undercover operation would be the most prudent way to proceed.

In August 1992, six marshals travelled to an area in northern Idaho known as Ruby Ridge to conduct surveillance of the Weaver residence in preparation for the undercover operation. During the surveillance mission, the Weaver dog discovered the marshals and began to bark. The marshals retreated with the dog, Harris, Randy Weaver and his son, Sammy Weaver, and other family members in pursuit. At an area known as the "Y," a gun battle occurred in which Deputy Marshal Degan and Sammy Weaver were killed.

We conclude that the marshals took a measured approach in developing a plan to apprehend Weaver. Throughout the 18 month period that the marshals were responsible for apprehending Weaver, they carefully devised a plan intended to pose the least amount of risk to Weaver, his family, and the marshals. At no time did we find that it was the intent of the marshals to force a confrontation with Weaver or his family. Although some may question the expenditures of manpower and resources by theMarshals Service during this 18 month period, we believe that institutional pressure created by the existence of a bench warrant and an indictment, left the Marshals Service with little choice but to proceed as it did. Moreover, the USAO did little to assist the Marshals Service in this matter. Indeed, during the first part of this process the USAO thwarted the efforts of the Director of the Marshals Service to focus the court on the danger involved in making the arrest and incorrectly terminated efforts by the Marshals Service to negotiate with Weaver throughintermediaries.

With regard to the responsibility for the deaths that occurred at the Y, the marshals assert that Harris initiated the fire fight when he shot Deputy Marsha Degan while Weaver and Harris claim that the marshals fired the first shots. After a thorough review of all of the evidence made available to us, we have been unable to determine conclusively who fired the first shot during the exchange of gunfire. Although there is evidence that one of the marshals shot Sammy Weaver during the exchangeof gunfire, we found no proof that the shooting of the boy was anything other than an accident. In fact, the evidence indicates that the marshals did not know that Sammy Weaver had been killed or wounded until his body was discovered by the FBI in a shed outside the Weaver cabin two days later. Nor did we discover any evidence indicating that the marshals attempted to cover up their roles in the incident or that they exaggerated the events to cause a more drastic FBI response than was appropriate.

Soon after learning of the August 21 incident at Ruby Ridge, the FBI officials in Washington, D.C. evaluated the information made available to them and decided to deploy its Hostage Rescue Team ("HRT") to Idaho to deal with the crisis. HRT members assumed their position around the Weaver compound late in the afternoon of August 22, 1992 but before doing so they were instructed that their conduct was to be governed by specially formulated Rules of Engagement ("Rules"). These Rule sinstructed the HRT snipers that before a surrender announcementwas made they could and should shoot all armed adult malesappearing outside the cabin. Operating under these Rules on August 22, an FBI sniper/observer fired two shots in quick succession. The first shot was at an armed adult male whom he believed was about to fire at a HRT helicopter on an observation mission. The first shot wounded Randy Weaver while in front of a building at the Weaver compound known as the birthing shed. The second shot was fired at Harris while Harris was retreating into the Weaver cabin. The second shot seriously wounded Harris and killed Vicki Weaver who was behind the cabin door.

Following this shooting incident FBI officials spent the next eight days attempting to convince Weaver and Harris to surrender to federal authorities. Finally, due largely to the efforts of non-governmental negotiators, Harris and Weaver surrendered on August 30 and August 31 respectively. Thereafter, the FBI completed its searches of the cabin and surrounding areas. During the following month, the FBI also conducted an internal review of the shooting incident to determine if the sniper had responded appropriately.

Our review found numerous problems with the conduct ofthe FBI at Ruby Ridge. Although we concluded that the decision to deploy the HRT to Ruby Ridge was appropriate and consistent with Department policy, we do not believe that the FBI's initial attempts at intelligence gathering at the scene were sufficiently thorough. We also found serious problems with the terms of the Rules of Engagement in force at Ruby Ridge. Certain portions of these Rules not only departed from the FBI's standard deadly force policy but also contravened the Constitution of the United States. In addition, we found these Rules to be imprecise and believe that they may have created anatmosphere that encouraged the use of deadly force thereby having the effect of contributing to an unintentional death.

With regard to the two shots fired on August 22, we concluded that the first shot met the standard of "objective reasonableness" the Constitution requires for the legal use of deadly force but that the second shot did not satisfy thatstandard. It is our conclusion that the sniper/observer who took the second shot intended to shoot Kevin Harris but accidentally killed Vicki Weaver whom he did not see behind the curtained door. We also found the internal FBI review of the shooting incident has not been sufficiently thorough and reached incorrect conclusions about the second shot.

Our examination of the command and control of the crisisby the FBI, found numerous shortcomings. These shortcoming sincluded initial inadequacies in utilizing negotiating personnel, communicating with FBI Headquarters, documenting decisions and securing the site.

During and after the crisis, the crime scenes were searched by many law enforcement officials under the direct supervision of the FBI. We found the FBI's handling of the crime scene searches to be inadequate including its failure to use basic crime scene techniques in collecting evidence. Furthermore, the general disorganization and inexperience of some of the participants coupled with inaccuracies in the searches adversely affected the prosecution and contributed to the negative impression of the government generated during the trial. We found no evidence that these deficiencies were intentional or that the FBI staged evidence for the prosecution's benefit.

Shortly after their arrest, separate preliminary hearingswere held for Weaver and Harris. While arguing the government's motion requesting a continuance of the Harris preliminary hearing, U.S. Attorney Ellsworth made statements indicating that the government would allow Harris to have a complete preliminary hearing in return or consenting to the continuance. Thereafter, Harris consented to the continuance with the understanding that he would have a full preliminary hearing. An indictment was returned against Harris while his preliminary hearing was in progress. We have found that the U.S. Attorney did not intentionally misrepresent the government's position but that he failed to appreciate the impact of his statements and that he neglected to pay sufficient attention to the information that the received concerning the probable length of the preliminary hearing.

After the first indictments were returned against Weaver and Harris, the Assistant U.S. Attorney continued to present evidence to the grand jury which led to the return of two superseding indictments, each containing a conspiracy count. We found these conspiracy counts to be overly broad and to contain some overt acts for which there was insufficient evidence.

Later the USAO decided to seek the death penalty against Weaver and Harris even though the applicable federal appellate court had held that the offense charged could not constitutionally support the imposition of a death sentence. Wehave concluded that the decision to seek the death penalty, although made in good faith, gave the appearance that the government was overreaching.

From the moment that the USAO began to prepare the case for trial, it met with resistance from the FBI. This resistance took many forms, all of which served to make preparation of the case more difficult. The FBI continuously opposed actions of the prosecutors requested to prepare the case for trial, rangingf rom having the case agents conduct out-of state interviews to enlisting agents from other agencies to help prepare the case. The FBI, which wanted to be the only agency or, at a minimum, the lead agency on the case, resisted working as a coequal member of the prosecution team. Furthermore, when the USAO sought advice and assistance from the FBI Laboratory they met with unjustified delays and resistance that created discord within the team and disrupted trial preparation. These problems contributed to the USAO's decision to retain private forensic experts.

In addition, the FBI unjustifiably delayed producing materials to the USAO that were needed for trial preparation and that were clearly discoverable under federal law and the discovery stipulation signed by the parties. This action unreasonably delayed the availability of these materials fortrial preparation and for discovery. Particularly at the headquarters level, we found that the FBI's efforts to locate and produce discoverable documents to be disorganized and incomplete. The late production during trial of materials associated with the FBI Shooting Incident Report negatively affected the court's and the jury's perception of the government and the government's case. In addition, the delays in discovery caused by the disorganization of and mistakes committed by the FBI Laboratory contributed to the delay of the trial and to the perception that the government was uncooperative and not being totally forthcoming.

However, the FBI was not alone in failing to make timely disclosure of critical information to the defense. The USAO was also responsible for not promptly revealing certain important information to the defense. Although in some instances we found these tardy disclosures to be unjustified or negligent, we do not believe that they were improperly motivated or taken intentionally to obstruct the Weaver trial.

C. Significant Recommendations

As the result of our investigation, we have made seven broad recommendations. First, we recommend that all federal lawenforcement officers be governed by a standard deadly force policy and that the Department of Justice be responsible for developing such a policy. in addition to specifying clearly the circumstances in which deadly force may be used, the policy should define the occasions in which special Rules of Engagement may be implemented and the process by which such rules should be approved.

Second, we recommend that a crisis response team, including specially trained crisis managers, be available to respond to crises. In addition, we endorse the proposal to include specially trained prosecutors to provide legal support to tactical teams when needed. We also propose periodic joint training exercises by the various federal and local law enforcement agencies which are responsible for responding to crisis situation.

Third, we recommend that a panel comprised of representatives from federal law enforcement agencies, including an attorney from the Department of Justice, be created to examine the internal reviews that law enforcement agencies conduct after shooting incidents occur. This examination would focus on the thoroughness and prosecutive merit of the internal review.

Fourth, we recommend that FBI field offices that do not have a team in place to recover evidence after major hostage/barricade crises like Ruby Ridge request the assistanceof the Evidence Response Team at FBI Headquarters. We further recommend that procedures be adopted to improve the coordination between the FBI Laboratory and the federal prosecutors and that and examination be done of the FBI procedures regarding the memorializing of interviews.

Sixth, we recommend that all U.S. Attorneys' Offices institute a review process for indictments, at least for significant cases.

Finally, we recommend that our findings concerning the events surrounding the shooting of Vicki Weaver on August 22,1992 be referred to the appropriate component of the Department of Justice to assess prosecutive merit. In addition, we recommend that our analysis of the conduct of Assistant U.S.Attorney Ronald Howen be referred to the Executive Office for United States Attorneys for whatever administrative action it deems appropriate.


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