Report to the Deputy Attorney General on the Events at Waco, Texas/Prosecutions

by United States Department of Justice

XIV. Prosecutions

A. Introduction

The Waco crisis began with ATF's attempt to arrest and prosecute Koresh for firearms violations. Following the ATF raid, the prosecutive focus shifted to-building cases against any Branch Davidians who were responsible for killing and wounding ATF agents, or attempting to do so, during the two shootouts on February 28. The prosecutors also decided to keep the original firearms charges open as well, in the event that Koresh or any of his followers who had violated the firearms statutes surrendered to the authorities.

As discussed above, at the same time the FBI was handling the standoff negotiations, the United States Attorney's office in Waco (and its parent office in San Antonio), working largely with the Texas Rangers, concentrated on preparing its cases. In addition, as described above, the Justice Department intervened in early April, while the negotiations were was ongoing, to resolve differences of opinion that had arisen between the Assistant United States Attorney in Waco and his boss, the United States Attorney in San Antonio. The prosecution team was realigned and placed under the leadership of a different Assistant United States Attorney, who was to report directly to the Justice Department in Washington, D.C.

The discussion of the prosecutions in this report must necessarily be limited, because all the defendants are awaiting trial in the United States District Court in Waco. Given the constitutional and statutory rights of the defendants, as well as our desire not to interfere in the prosecution's presentation of its case, we are very limited in what we may discuss in this portion of the report. our discussion will describe the prosecutive efforts undertaken during the standoff and following the standoff.

B. Prosecutive Efforts During the Standoff

During the standoff the United States Attorney's office in San Antonio was required to make prosecutive decisions regarding those adults who left the compound. As to each adult who left the compound the prosecutors had several options: (1) they could file charges; (2) they could seek "material witness" warrants under 18 U.S.C. 3144, meaning that a judicial officer could order the released individual held in custody or released on bond until trial; or (3) they could do nothing. The third option -- doing nothing -- would not have been appropriate, because no one could be certain about the potential criminal liability of any of the departing Branch Davidians until a full investigation could be conducted following the evacuation of everyone from the compound. Accordingly, the departing adults were all treated either as defendants or material witnesses.

Early in the negotiations there was some confusion as to whether the filing of criminal charges against any of the departing Branch Davidians would undermine the FBI's negotiating efforts with Koresh. For example, two elderly women, Margaret Lawson and Catherine Mattson, were released from the compound on March 2, 1993. The next day, the United States Attorney's Office (after consulting with at least one FBI supervisor), charged the two women in a criminal complaint with conspiracy to commit murder. The FBI complained that the charges were premature, and that news of the charges had upset Koresh and undermined the FBI's negotiating effort. The United States Attorney reversed course and dismissed the complaint immediately, seeking material witness warrants against the two women instead.

As the standoff progressed, however, the process for dealing with the departing adults became more regularized. Those who left the compound were treated initially as material witnesses, pending the United States Attorney's decision whether to charge them. Those treated as material witnesses were either held in custody, released to a halfway house, or released on bond.

As of April 19, seventeen Branch Davidians who had left the compound before the fire or who had survived the fire were named as material witnesses, as follows:

1. Renos Avraam (survived fire; held without bond).
2. Graeme L. Craddock (survived fire; held without bond).
3. Livingstone Fagan (departed March 23; held without bond).
4. Oliver Gyarfas (departed March 12; held without bond).
5. Victorine Hollingsworth (departed March 21; released on bond).
6. Margaret Lawson (departed March 2; released to halfway house).
7. James Lawter (departed March 21; released to halfway house).
8. Derek Lovelock (survived fire; held without bond).
9. Sheila Martin (departed March 21; released to halfway house).
10. Catherine Mattson (departed March 2; released to halfway house).
11. Gladys Ottman (departed March 21; released to halfway house, then remanded to custody on contempt charge).
12. Anetta Richards (departed March 21; released to halfway house).
13. Rita Riddle (departed March 21; held without bond).
14. Ruth Ottman Riddle (survived fire; tried to reenter burning building; forcibly rescued by HRT agent who pursued her into burning building; released to halfway house).
15. Ofelia Santoya (departed March 21; released to halfway house).
16. David Thibodeau (survived fire; held without bond).
17. Marjorie Thomas (survived fire [rescued by HRT]; in hospital).

On the weekend before the April 19 tear gas operation, the Justice Department assisted the United States Attorney's office in Waco in preparing arrest warrants for all the adult members of the compound, charging them either as material witnesses or as a participants in criminal activity. Those Davidians who survived the April 19 fire were arrested pursuant to these warrants. Eventually several of the Davidians who had departed during the standoff, as well as several of the survivors of the April 19 fire, were indicted.

C. Initial Series of Indictments

A series of indictments were returned against several Branch Davidians between March 30 and July 20, 1993. The indictments contained charges relating to the first shootout on February 28, the second shootout on February 28, and firearms violations committed between February 1992 and February 1993. Those indictments are summarized as follows:

1. United States v. Kathy Schroeder, Brad Branch and Kevin Whitecliff

On March 30, 1993, Schroeder (who left the compound on March 21 1993), Whitecliff (who departed on March 19, 1993), and Branch (departed March 19, 1993) were charged with conspiracy to murder a federal official (18 U.S.C. 1117) and using a firearm during a crime of violence (18 U.S.C. 924(c)) in connection with the first shootout on February 28, 1993, during which four ATF agents were killed and 17 were wounded.

2. United States v. Norman Washington Allison (aka Delroy Nash) and Woodrow Kendrick

Allison and Kendrick were involved in the second shootout with the ATF on February 28, as they attempted to reenter the compound. On April 6, 1993, Allison and Kendrick were charged with aiding and abetting the attempted murder of a federal official (18 U.S.C. 1114, 1111(a), 2) and with using a firearm during a crime of violence (18 U.S.C. 924(c)).

3. United States v. Schroeder, Whitecliff, Branch, Jaime Castillo and Clive Doyle

On April 27, 1993, Castillo and Doyle, who had both survived the April 19 fire, were added to the original indictment that had been returned on March 30 against Schroeder, Whitecliff and Branch. Doyle and Castillo were charged with conspiracy to murder a federal official (18 U.S.C. 1117) in connection with the first shootout on February 28.

4. United States v. Paul Fatta

Fatta, who was not inside the compound on February 28, was charged in connection with the Davidians' illegal firearms activities during 1992 and early 1993. On April 27, 1993, Fatta was charged with conspiracy to possess and manufacture machine guns (18 U.S.C. 371; 922(o)).

On June 8, 1993, a superseding indictment was returned against Fatta. The superseding indictment added another count charging Fatta with aiding and abetting Koresh's possession of machineguns during 1992 and early 1993.

5. United States v. Graeme Craddock

On June 8, 1993, Graeme Craddock was indicted and charged with possessing an explosive grenade (26 U.S.C. 5861(d)) during the April 19 tear gas action. Craddock was also charged with conspiring with Koresh to possess an explosive grenade on April 19, 1993, in violation of 18 U.S.C. 371 and 26 U.S.C. 5861(d).

6. United States v. Schroeder, Branch, Whitecliff, Doyle Castillo and Livingstone Fagan

On July 20, 1993, the grand jury returned a superseding indictment that replaced the original March 30 indictment. The superseding indictment added Livingstone Fagan (who had departed from the compound on March 23, 1993).as a defendant. The superseding indictment charged Schroeder, Branch, Whitecliff, Doyle, Castillo and Fagan with conspiring to kill ATF agents (18 U.S.C. 1117); and it charged Schroeder, Branch, Whitecliff and Fagan with using and carrying firearms during the ATF shootout on February (924(c)).

D. The Omnibus Indictment

On August 6, 1993, the United States Attorney's office in Waco obtained another superseding indictment from the grand jury, combining all previous indictments into one. The new indictment also added two new defendants, Renos Avraam and Rita Riddle. Thus, twelve defendants were charged altogether: Kathryn Schroeder, Brad Branch, Kevin Whitecliff, Clive Doyle, Jaime Castillo, Livingstone Fagan, Paul Fatta, Woodrow Kendrick aka Bob Kendrick, Norman Washington Allison aka Delroy Nash, Graeme Craddock, Renos Avraam and Ruth Riddle. The charges consisted of the following:

a) Count One: Conspiracy to Murder Federal Officers

All twelve defendants were charged with being part of a conspiracy to arm the Davidians during 1993 and early 1993 in preparation for an armed confrontation with law enforcement. The two shootouts with ATF on February 28, 1993 were charged as part of the conspiracy.

b) Count Two: Aiding and Abetting the Murder of Federal Officers

All twelve defendants were charged with aiding and abetting the murders of the four ATF agents on February 28, 1993.

c) Count Three: Using a Firearm During a Crime of Violence

Schroeder, Branch, Whitecliff, Castillo, Fagan, Fatta, Craddock, Avraam and Riddle were charged with using a firearm during a crime of violence in connection with the first ATF shootout on February 28, 1993.

d) Count Four: Aiding and Abetting the Attempted Murder of a Federal Officer

Allison and Kendrick were charged with aiding and abetting the attempted murder of an ATF agent during the second shootout on February 28.

e) Count Five: Using a Firearm During a Crime of Violence

Kendrick was charged with using two firearms in connection with the second ATF shootout on February 28.

f) Count Six: Using a Firearm During a crime of violence

Allison was charged with using a firearm during the second ATF shootout on February 28.

g) Count Seven: Possession of an Unregistered Destructive Device

Craddock was charged with possessing an explosive grenade on April 19, 1993.

h) Count Eight: Conspiracy to Possess an Unregistered Destructive Device

Craddock was charged with conspiring with Koresh to possess an explosive grenade during the 51-day standoff.

i) Count Nine: Conspiracy to Possess and Unlawfully Manufacture Machine Guns

Fatta was charged with conspiring to manufacture and possess machine guns during 1992 and early 1993.

j) Count Ten: Aiding and Abetting the Unlawful Possession of Machine Guns

Fatta was charged with aiding and abetting Koresh in the unlawful possession of machine guns during 1992 and early 1993.

Trial is scheduled to begin on the superseding indictment in early 1994 in the Waco Division of the United States District Court for the Western District of Texas.

E. Schroeder's Guilty Plea

On September 9, 1993, Kathryn Schroeder entered a plea of guilty to a superseding indictment charging her with one count of armed resistance of a federal officer (18 U.S.C. 111). Schroeder agreed to testify as a government witness against the remaining 11 defendants, in return for the government's agreement to dismiss the original charges (as contained in the August 6 omnibus indictment) against her. Under her plea agreement Schroeder faced a maximum possible sentence of ten years in prison.