Activities of Federal Law Enforcement Agencies Toward the Branch Davidians/Section 2

II. The ATF Investigation

In May 1992, the Austin, TX Office of the Bureau of Alcohol, Tobacco and Firearms was called by Chief Deputy Daniel Weyenberg of the McLennan County Sheriff's Department. Weyenberg notified the ATF that his office had been contacted by the local United Parcel Service regarding a package it was to deliver to the Branch Davidian residence. The package had broken open and contained firearms, inert grenade casings, and black powder.^[1]

On June 9, 1992, Special Agent Davey Aguilera of the Austin ATF office opened a formal investigation. Within a week, Philip Chojnacki, the Special Agent in Charge of the Houston ATF Office classified the case "sensitive," thereby calling for a high degree of oversight from both Houston and Headquarters in Washington, DC.^[2] Notwithstanding the priority given to the case, numerous and serious missteps occurred throughout the investigation that followed. The most troubling aspects of the case were the ATF's overall lack of thoroughness in its investigation, the ineffectiveness of the undercover operation, and an affidavit in support of the search and arrest warrants that was replete with deficiencies.

a. the mcmahon compliance visit

On July 30, Aguilera joined ATF compliance officer Jimmy Ray Skinner to conduct a compliance inspection of the premises of Henry McMahon, proprietor of Hewitt Hand Guns. The inspection revealed that certain AR- 15 lower receivers supposedly in McMahon's inventory were neither on the premises nor listed in his records as sold.^[3] McMahon indicated that they were in the possession of David Koresh. McMahon then called Koresh, who offered to allow the agents to inspect for possible firearms violations. The agents declined the invitation.^[4] Shortly thereafter, McMahon told Koresh that he was suspicious that an investigation of Koresh and his followers was underway.^[5]

It is unclear why the ATF did not accept the offer to do a compliance inspection of Koresh's firearms. Importantly, the Treasury Report fails to mention that Aguilera had an opportunity at the time of the compliance inspection to inspect Koresh's firearms. Wade Ishimoto, a reviewer of the Treasury Department Report, indicated to the subcommittees that he had not been made aware of the McMahon compliance visit by the Department of Treasury during his review.^[6] Mr. Ishimoto maintained that Koresh's offer should have been accepted, presenting an invaluable opportunity to gather critical intelligence.^[7] The agents' decline of the Koresh offer was a serious mistake.

b. the investigation continued

Tracing UPS invoices, Aguilera learned that more than $43,000 worth of firearms (including AR-15 semiautomatics), firearms parts (including AR-15 lower receivers), grenade hulls, and black powder had been shipped to the Davidians' storage facility.^[8] One of Koresh's neighbors, who had served in an Army artillery unit, told Aguilera that he had frequently heard the sound of automatic weapons fire--including .50- caliber fire--coming from the Davidian residence.^[9] Aguilera also learned that in November, a deputy sheriff had heard a loud explosion at the Davidian residence which produced a cloud of grey smoke.^[10] Through interviews with former cult members, Aguilera learned of numerous allegations that Koresh had had sexual relations with girls younger than 16 years of age.^[11] These allegations would later feature prominently in Aguilera's affidavit in support of the search and arrest warrants.

In December 1992, after reviewing all of the available evidence associated with the Koresh investigation in ATF headquarters in Washington, ATF decided they did not yet have probable cause to support a warrant. Director Higgins stated: "[W]e went out and got more information and came back in February . . . . We didn't have it [probable cause] until mid-February." ^[12] As part of its effort to develop probable cause and to gather additional intelligence, on January 10, 1993 the ATF set up surveillance cameras in an undercover house across from the Davidian residence. The surveillance produced no additional evidence of criminal activity. Former Davidians were interviewed in December 1992 and January 1993. Among those interviewed were three members of the Bunds family, all of whom had left the compound before 1992. The events that were described by the Bunds occurred prior to 1992,^[13] and the information they provided was so stale as to be of little or no value.

Importantly, the only activity mentioned in the affidavit involving the Branch Davidians that occurred between December 1992 and February 1993 was Agent Rodriguez's undercover visits to the Davidian residence. The visits consisted of Koresh speaking to Rodriguez about Second Amendment rights, Koresh showing a tape of alleged ATF abuses, and the two men shooting legal firearms at the compound's range. It appears that Rodriguez discovered no evidence during his visits that would have contributed to a finding of probable cause, or that would have provided valuable information to guide subsequent ATF action. Nevertheless, in a case of such potential danger that it was designated "sensitive" and "significant," the ATF proceeded with its February raid.

Throughout the ATF's investigation decisions were made and actions were taken which demonstrated a reckless disregard for the value of well-developed intelligence. Furthermore, the haphazard manner in which the investigation was pursued repeatedly exposed the lack of adequate command, control and communications processes to support such an operation.

c. undercover operation

On January 11, 1993, eight ATF agents moved into a small house directly across from the front drive of the Davidian residence, posing as college students attending the nearby Texas State Technical College. Through a series of mistakes, the ATF appeared to lose the security of its undercover operation. At least some of the breaches of security were so serious, and obvious, that they should have been recognized as such by ATF, and become the basis for modifying the nature and timing of any subsequent action against Koresh.

There is substantial evidence to suggest that Koresh and the Davidians knew that the undercover house established by the ATF across the street from the compound was occupied by law enforcement officials. Koresh told his next door neighbor that he believed that the self- identified "college students" were too old to be actual college students, with cars too new and expensive to be owned by college students. He commented that they were probably Federal agents.^[14] The agents were also informed by one of Koresh's neighbors shortly after they began surveillance that Koresh suspected they were not what they claimed to be.^[15] On one occasion, the Davidians visited their new neighbors in the undercover house to deliver a six pack of beer, but the occupants of the house would not let them in.^[16] Finally, Koresh complained to the local sheriff that the UPS delivery man was an undercover police officer.^[17] Koresh commented that he did not appreciate being investigated. At the hearing, Agent Rodriguez testified that "all of [the undercover ATF agents], or myself knew we were going to have problems. It was just too--too obvious." ^[18]

The undercover operation was also undermined by its limited nature: The 24-hour-a-day surveillance was only sustained from January 11 through January 19, at which time Agent Chuck Sarabyn, the ATF tactical commander, ended the constant surveillance and redirected the mission toward infiltration of the compound.^[19] It was later determined at trial that during the period of constant surveillance the agents within the house did not know what Koresh looked like. Rodriguez testified at trial that the only picture identification that the agents possessed was "a driver's license picture of him, which was not that good. That was one reason we [later] needed to make contact with the people inside the compound, so we could identify him. I myself did not know what he looked like [at the time of surveillance]." ^[20] Significantly, the surveillance log cites two occasions when a white male jogged up and down the road on which the undercover house was located.^[21] If this jogger had been Koresh, according to Rodriguez's trial testimony, the agents would not have known it. The lack of an effective surveillance operation was further demonstrated through the ATF's failure to develop nearly 900 photographs taken from the undercover house or to review videotapes of the movements of the Davidians.^[22] This evidence represented an opportunity to develop critical intelligence regarding the habits and movements of compound residents, including Koresh.

The lack of such basic and critical intelligence clearly undermined the ability of the undercover operation to fulfill its mission. The operation's failure to develop useful intelligence after 8 days of continuous surveillance should not have led to the termination of the surveillance, but rather to its modification and prolongation. Given the potential for danger to agents and those within the compound and the dearth of intelligence, the decision to end around-the-clock surveillance was seriously flawed. Significantly, all of the ATF supervisory agents involved in the planning of the operation believed the continuous surveillance continued beyond the date it was actually ended. This mistaken belief both confirms that the termination of the surveillance was ill-advised, and highlights the wholly inadequate command, control and communications processes utilized by ATF throughout the operation. The eyes and ears were poorly utilized, and what intelligence they did supply was poorly used.

d. failure to comply with sensitive-significant procedures

As noted in the Treasury Report, the Koresh investigation was classified as "sensitive" and "significant" within a week of its formal initiation on June 9, 1992. Such a classification is intended to ensure a higher degree of involvement and oversight from both the ATF Special Agent in charge and ATF headquarters. Yet, in spite of this designation, the agents in charge of the investigation received minimal oversight in developing the investigation and raid, with important elements of the plan, such as whether or not to abort the raid if the element of surprise was lost, apparently not being understood by the agents in charge. In view of this designation, the lack of knowledge on the part of the Special Agent in Charge, and Headquarters, throughout the investigation--including the undercover operation--is striking. The "sensitive/significant" designation makes ATF's failure to have implemented a process for continually reviewing intelligence and modifying plans accordingly a glaring omission.

e. the affidavit in support of the warrants

The subcommittees examined the constitutionality of the search and arrest warrants, carefully reviewing the information contained in the supporting affidavit.

The fourth amendment to the Constitution provides: "No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." ^[23] The Supreme Court has ruled that, in order for this protection to be enforced, a warrant may issue only upon the determination of a neutral and detached magistrate that probable cause exists to believe that the search will yield evidence of criminality.^[24] The standard articulated in Illinois v. Gates, which guides a magistrate's probable cause determinations, is whether "there is a fair probability that contraband or evidence of a crime will be found in a particular place."^[25] Such a determination is, in the Supreme Court's words, a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before the magistrate . . . there is a fair probability that the contraband or evidence of a crime will be found in a particular place."^[26]

When applying this common sense standard to the circumstances of the ATF investigation, the affidavit appears to have contained sufficient evidence of violations of Federal firearms law to support the magistrate's decision to issue the warrants.^[27] There were substantial purchases of AR-15 semiautomatics and AR-15 lower receivers, grenade hulls, and black powder. A neighbor, who had served in an Army artillery unit, testified that he had frequently heard the sound of automatic weapons fire. A deputy sheriff testified that he had heard a loud explosion at the Davidian residence which produced a cloud of grey smoke. Taken together, this information provided a sufficient basis for finding probable cause to issue the warrants.

While the warrants may have met the minimal standard of constitutional sufficiency, the affidavit supporting the warrants contained numerous misstatements of the facts, misstatements of the law, and misapplication of the law to the facts, and serves as a de facto record of a poorly developed and mismanaged investigation. The affidavit included misleading and factually inaccurate statements, contained substantial irrelevant and confusing information, and failed to properly qualify witnesses' testimony when obviously called for based on their backgrounds. Consequently, the affidavit gave the appearance that the ATF was not going to let questionable facts or evidence stand in the way of moving forward on their timetable.

The affidavit provided and sworn to by Aguilera contained numerous errors and misrepresentations, which, taken together, create a seriously flawed affidavit. The affidavit misstated that Koresh possessed a British Boys anti-tank .52 caliber rifle, when in fact Koresh owned a Barret light .50 firearm.^[28] Possession of the British Boys would have been a felony ^[29] while possession of the Barret was completely legal. The affidavit misstated that the M16 parts kits from Nesard company were two CAR and two EZ kits which contained all the parts of an M16 machine gun except for the lower receiver unit, when, in fact, the Nesard parts kits do not contain the auto sear and pin which are absolutely necessary to convert semi automatic weapons to machine guns.^[30] The affidavit failed to mention that grenade hulls like those cited in the affidavit to help establish probable cause had been sold by the Davidians in the past at gun shows as paper weights and mounted on plaques. Finally, the affidavit was misleading by reporting that Deputy Sheriff Terry Fuller was in the vicinity of the compound when he heard a loud explosion, but then failed to report that Fuller investigated and learned that the Davidians were using dynamite for construction.

Former Davidian Marc Breault provided much of the information contained in the ATF's affidavit. Yet, nowhere in the affidavit is it mentioned that Breault left the compound as an opponent of Koresh, a fact certain to call into question Breault's motives. Nor does the affidavit mention that he is blind. On the contrary, the affidavit implies that he was a compound bodyguard. It states that Breault "participated in physical training and firearm shooting exercises conducted by Howell. He stood guard armed with a loaded weapon." ^[31]

The affidavit also contained misapplications of firearms law. The affidavit alleged the violation of one statute: 26 U.S.C. Sec. 5845(f). This statute, however, merely defines "destructive device." It does not establish any crime. It is 26 U.S.C. Sec. 5861 which establishes crimes related to destructive devices. The affidavit also confused the term "explosive" with the term "explosive device," a term which does not appear in Federal law.

In the affidavit, Aguilera misstated that a "machinegun conversion kit" was a combination of parts "either designed or intended" to convert a semiautomatic into an automatic firearm. In fact, Federal law defines a conversion kit to be a combination of parts "designed and intended" to convert a semiautomatic into an automatic.^[32]

In the affidavit, Aguilera also misstated that Koresh had ordered M- 16 "EZ kits." The kits to which Aguilera was referring are called "E2" kits. Furthermore, the E2 kit is a spare parts kit, not a conversion kit. It contains spare parts which fit either a semiautomatic Colt AR-15 Sporter or an automatic Colt M-16 automatic. Because it is not a conversion kit, the E2 kit is not regulated by Federal law. Yet the affidavit implies that the kit's purpose is for converting semiautomatics into automatics. On this point, the Treasury Department Report is mistaken as well. While it correctly named the E2 kit, it wrongly asserted that "the parts in the kit can be used with an AR-15 rifle or lower receiver to assemble a machinegun . . . The parts in the E2 kit also can be used to convert an AR-15 into a machinegun."^[33] These assertions are false. The Treasury Department regulates genuine conversion kits as if they were themselves machineguns. It does not regulate E2 kits.

Intimating that Koresh was converting AR-15 Sporters and semiautomatic copies of AK-47's into automatics, Aguilera included evidence of purchases made by Koresh from a South Carolina Company which was known to sell parts needed to convert semiautomatics of the type that Koresh possessed into automatics. Aguilera failed even to allege that Koresh purchased parts from this company which would have allowed the conversion of semiautomatics into automatics. Nowhere in the affidavit is there evidence that Davidians were manufacturing their own automatic sears, or modifying the lower receivers of semiautomatics, both of which would have been violations of firearms laws.

The affidavit was misleading in that it falsely referred to "clandestine" publications. The affidavit reported that in June 1992, a witness had "observed at the compound published magazines such as, the Shotgun News and other related clandestine magazines."^[34] Far from clandestine, Shotgun News has a circulation of about 165,000. Subscriptions are available by mail or telephone. The Austin, TX ATF office--Aguilera's home office--was a subscriber.

f. findings concerning the atf investigation

1. The ATF's investigation of the Branch Davidians was grossly incompetent. It lacked the minimum professionalism expected of a Federal law enforcement agency. Among the failures of the investigation were:
   • The failure to accept Koresh's offer to inspect the firearms held at the Branch Davidian residence. It is unclear why the ATF did not accept the offer to conduct a compliance inspection of Koresh's firearms. What is clear is that the agents' refusal of Koresh's invitation was the first of a series of instances in which the ATF rejected opportunities to proceed in a non-confrontational manner. The agents' decision to decline Koresh's offer was a serious mistake.
   • The failure to recognize obvious breaches of surveillance security. Some of these breaches were so serious and obvious that they should have been recognized by the ATF agents and commanders involved, and should have become the basis for modifying the nature of the surveillance.
   • The failure to analyze intelligence gathered during the undercover operation, including more than 900 photographs of activities around the Branch Davidian residence. These photographs could have led to the development of critical intelligence regarding the habits and movements of the Davidians, and Koresh in particular.
   • The premature termination of the undercover operation. The operation's failure to develop useful intelligence after 8 days of continuous surveillance should not have led to the termination of the surveillance, but rather to its prolongation. Given the potential for danger to agents and those within the residence, and the dearth of intelligence, the decision to end around-the-clock surveillance was seriously flawed.
2. While the ATF had probable cause to obtain the arrest warrant for David Koresh and the search warrant for the Branch Davidian residence, the affidavit filed in support of the warrants contained numerous false statements. The ATF agents responsible for preparing the affidavits knew or should have known that many of the statements were false.
3. David Koresh could have been arrested outside the Davidian compound. The ATF deliberately chose not to arrest Koresh outside the Davidian residence and instead determined to use a dynamic entry approach. In making this decision ATF agents exercised extremely poor judgment, made erroneous assumptions, and ignored the perils of this course of action which they should have foreseen.

g. recommendations

1. Whenever it is feasible to achieve its objectives, the ATF should use less confrontational tactics. The ATF had an opportunity to search the Davidian residence at the invitation of Koresh. Koresh was off the property and subject to the capture of law enforcement on numerous occasions before the raid. The ATF should have taken advantage of these less confrontational opportunities. The ATF should pursue such alternatives in the future.
2. Federal law enforcement agencies should verify the credibility and the timeliness of the information on which they rely in obtaining warrants to arrest or search the property of an American citizen. The affidavits on which the arrest and search warrants of Koresh were ordered contained information provided to the ATF by informants with obvious bias toward Koresh and the Davidians. In addition, much of the information was stale, based on experiences years before the investigation. The ATF should obtain fresh and unbiased information when relying on that information to arrest or search the premises of the subjects of investigations.
3. The ATF should make every effort to obtain continuous and substantial intelligence and should ensure that the efforts to obtain such intelligence are not hindered by breaches of security. The ATF had a broken and insecure intelligence operation. Gaps in the surveillance and breaches of the security of undercover operations jeopardized the investigation and the raid. The ATF should take precautions to ensure that these breaches do not occur in the future.
4. If the false statement in the affidavits filed in support of the search and arrest warrants were made with knowledge of their falsity, criminal charges should be brought against the persons making the statements.

---

1. U.S. Dept. of the Treasury, Report of the Department of the Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation of Vernon Wayne Howell also known as David Koresh 17 (1993) [hereinafter Treasury Department Report].
2. Treasury Department Report at 24.
3. Id. at 26.
4. Investigation Into the Activities of Federal Law Enforcement Agencies Toward the Branch Davidians (Part 1): Hearings Before the Subcommittee on Crime of the House Committee on the Judiciary and the Subcommittee on National Security, International Affairs, and Criminal Justice of the House Committee on Government Reform and Oversight, 104th Cong., 1st Sess. 163 (1995) [hereinafter Hearings Part 1].
5. Id.
6. Hearings Part 1 at 332.
7. Id.
8. Treasury Department Report at 21, B-182.
9. Id. at 26.
10. Id. at 27.
11. Id. at 27-29.
12. Events Surrounding the Branch Davidians Cult Standoff in Waco, Texas: Hearings Before the House Committee on the Judiciary, 103d Cong., 1st sess. (1993).
13. Treasury Department Report at 27-28.
14. Id. at 187.
15. Id.
16. Dick J. Reavis, The Ashes of Waco 67 (1995).
17. Id. at 69.
18. Hearings Part 1 at 796.
19. Treasury Department Report at 52.
20. United States v. Branch, et al., Case No. W-93-CR-046 (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) & (12) (W.D. Tex. 1994).
21. ATF Surveillance Log.
22. Hearings Part 1 at 807.
23. U.S. Const. amend IV.
24. United States v. Leon, 468 U.S. 897 (1984).
25. Illinois v. Gates, 462 U.S. 213, 238 (1983).
26. Id.
27. All of the constitutional scholars contacted by the subcommittees agreed with the conclusion that there was probable cause in support of the warrants. See Hearings Part 1 at 818 (Letter from Albert W. Altschuler, Wilson-Dickinson Professor of Law, University of Chicago to Rep. John Conyers, Jr. (July 13, 1995)).
28. Affidavit of Davey Aguilera in support of arrest warrant, at 14 [hereinafter Aguilera Affidavit]. [See documents produced to the subcommittees by the Department of the Treasury T004700-T004714 at Appendix [hereinafter Treasury Documents]. The Appendix is published separately.]
29. 26 U.S.C., Ch. 53.
30. Aguilera Affidavit at 5.
31. Aguilera Affidavit at 12.
32. See 26 U.S.C. Sec. 5845.
33. Treasury Department Report at 23-24.
34. Aguilera Affidavit at 14.