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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.4
On June 9, 1992, Special Agent Davey Aguilera of the Austin ATF office opened a formal investigation. Within a week, Phillip 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.5 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.6 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.7 Shortly thereafter, McMahon told Koresh that he was suspicious that an investigation of Koresh and his followers was underway.8
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
4U.S. Department 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].
5 Treasury Department Report at 24.
6 Id. at 26.
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].
McMahon compliance visit by the Department of Treasury during his review.9 Mr. Ishimoto maintained that Koresh's offer should have been accepted, presenting an invaluable opportunity to gather critical intelligence. 10 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.11 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. 12 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. 13 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. 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." 15 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, 16 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' 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 po
14 Id. at 27-29.
15 Events Surrounding the Branch Davidians Cult Standoff in Waco, Texas: Hearings Before the House Committee on the Judiciary, 103d Cong., 1st sess. (1993).
tential 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.17 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.18 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.19 Finally, Koresh complained to the local sheriff that the UPS delivery man was an undercover police officer.20 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." 21
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.22 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
17 Id. at 187.
19 Dick J. Reavis, The Ashes of Waco 67 (1995).
20 Id. at 69.
21 Hearings, Part 1 at 788.
22 Treasury Department Report at 52.
could identify him. I myself did not know what he looked like [at the time of surveillance]." 23 Significantly, the surveillance log cites two occasions when a white male jogged up and down the road on which the undercover house was located.24 If this jogger had been Koresh, according to Rodriguez' 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.25 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"
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.
23 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).
24 ATF Surveillance Log.
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." 26 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.27 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." 28 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." 29
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.30 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
26 U.S. Const. amend IV.
27 United States v. Leon, 468 U.S. 897 (1984). 28 Illinois v. Gates, 462 U.S. 213, 238 (1983). 29 Id.
30 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 810 (Letter from Albert W. Altschuler, Wilson-Dickinson Professor of Law, University of Chicago to Rep.