Koresh possessed a British Boys antitank .52 caliber rifle, when in fact Koresh owned a Barret light .50 firearm.31 Possession of the British Boys would have been a felony 32 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 M-16 machinegun 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 semiautomatic weapons to machineguns.33 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. "34 The affidavit also contained misapplications of firearms law. The affidavit alleged the violation of one statute: 26 U.S.C. § 5845(f). This statute, however, merely defines "destructive device." It does not establish any crime. It is 26 U.S.C. §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.35 In the affidavit, Aguilera also misstated that Koresh had ordered M-16 "EZ kits." The kits to which Aguilera was referring are called "E-2" kits. Furthermore, the E-2 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 E-2 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 31 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.] 32 26 U.S.C., Ch. 53. 33 Aguilera Affidavit at 5. 34 Aguilera Affidavit at 12. Treasury Department Report is mistaken as well. While it correctly named the E-2 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 E-2 kit also can be used to convert an AR-15 into a machinegun." 36 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 Com pany 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." 37 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 nonconfrontational 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. 36 Treasury Department Report at 23-24. 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 mak III. PLANNING AND APPROVAL OF THE RAID The ATF had a variety of options in the manner in which it could have served the arrest and search warrants on Koresh. These options included luring Koresh off the Davidian residence, arresting Koresh while he was off the Davidian property, surrounding the Davidian residence and waiting for Koresh to surrender himself and consent to the search, and executing a "dynamic entry" style raid into the residence. The ATF chose the dynamic entry raid, the most hazardous of the options, despite its recognition that a violent confrontation was predictable. The decisions regarding the raid were made without the participation of either Secretary of the Treasury Lloyd Bentsen or the Deputy Secretary of the Treasury Roger Altman. A. WAS "SHOW TIME" EVEN NECESSARY? The subcommittees received evidence of numerous opportunities to arrest Koresh away from the residence, thereby reducing the likelihood of violence. The failure to make use of these opportunities raises the question of the dynamic entry's necessity. ATF officials offered at least three different reasons for this critical decision. ATF Special Agent Phillip Chojnacki, the overall commander of the raid, testified that Koresh could not be arrested outside the residence because the intelligence from the undercover house was that he rarely left the residence.38 ATF did not want the tactical problem of having agents on standby indefinitely while they waited for the rare occurrence of Koresh going into town. Yet the testimony before the subcommittees revealed that Koresh left the Davidian residence at least once a week during January and February.39 David Thibodeau, who lived at the Branch Davidian residence but did not consider himself to be a member of the Branch Davidian religious community, testified that Koresh was a regular jogger.40 It was also revealed during the trial that Koresh had left the residence on January 29, 1993, to conduct business at a machine shop.41 Finally, the manager at the Chelsea Bar and Grill in Waco stated that they served Koresh about once a week through February.42 ATF agents next explained that it did not make practical sense to arrest Koresh outside because he would immediately be released and would be back at the residence. The window was simply too narrow.43 This answer also lacked credibility since Federal law pro vides that the arrestee can be held for 3 days upon motion of the Government.44 Finally, ATF officials testified at the hearings that they abandoned the idea of trying to arrest Koresh outside the residence because their primary goal was to get inside to conduct a search. These officials maintained that it was preferable to attack the residence by surprise and get Koresh and the guns at the same time.45 However, the ATF had developed its own scheme to lure Koresh off the complex. The ruse was proposed to Joyce Sparks, the social worker who had conducted an earlier child protection investigation at the Branch Davidian residence. Sparks was to contact Koresh, who she had come to know relatively well, and make an appointment with him to be held in her office. While Sparks agreed to cooperate with the ATF, Sparks' supervisor refused to approve the ruse tactic.46 B. WAS THE VIOLENT OUTBURST PREDICTABLE? The record of the subcommittees' investigation shows that persons who through contact and experience became familiar with the belief system and the authoritarian structure of the Branch Davidians could have predicted a violent resistance by the Davidians to a mass law enforcement action. The Branch Davidians predicted a violent apocalypse, a vision that followers believed be necessary to go to heaven.47 The ATF investigative agents interviewed Sparks, who had kept lines of communication open between Koresh and herself even after the end of her Child Protective Services investigation. During their conversations, Koresh would often provide lengthy presentations of his religious beliefs. Sparks developed an understanding of how Koresh thought and how he was viewed within the Branch Davidian group at the residence. When ATF sought her opinion about the raid, she stated that the Branch Davidians believed that Koresh was the Lamb of God and that they would protect him to the death. "They will get their guns and kill you," Sparks recalls saying.48 The ATF also received information from Marc Breault, a former Branch Davidian and resident at Mount Carmel, the Davidians' home.49 Contact between ATF and Breault was made during December 1992. During that time and up to the time of the raid, the former Branch Davidian provided information about the Davidians and Koresh in particular, including his past correspondence. In a paper prepared by Breault and provided to the ATF, a recent history of the Branch Davidians recounts the group's views that the world will end in a final violent battle. 47 James D. Tabor & Eugene V. Gallagher, Why Waco? 7-10 (1995). 48 Hearings, Part 1. 49 U.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 |