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IV. RAID EXECUTION

There is no question that the ATF raid executed on February 28, 1993, went fatally wrong. While many factors played a role in this, one stands apart as the principal reason why four ATF agents were killed and many others wounded. Simply put, the Davidians knew that the ATF agents were coming. And while the ATF expected to serve a search warrant for Koresh and search the residence, the Davidians apparently feared the worst that law enforcement agents or military troops were coming to arrest all of them or, perhaps kill them. In any event, some of the Davidians armed themselves and lay in ambush, waiting for the arrival of the ATF agents.

A. RODRIGUEZ AND THE “ELEMENT OF SURPRISE"

1. HOW THE DAVIDIANS KNEW THE ATF WAS COMING

The Davidians learned of the ATF plan to raid their residence when a local television cameraman happened to get lost on his way to the Branch Davidian residence.62 The cameraman had been dispatched to the residence by the local television station because the news director of the station expected the ATF raid would occur on that day. He suspected this because an employee of the local ambulance service had informed him that a Fort Worth-based trauma flight company had been put on standby along with the local ambulance company.63

While the cameraman was sitting by the side of the road attempting to locate the Davidian residence, David Jones, a Branch Davidian and a letter carrier with the U.S. Postal Service, pulled up behind the cameraman and asked whether he was lost. The cameraman introduced himself and asked for directions to "Rodenville," the name by which many local residents referred to the Branch Davidian residence. After Jones pointed to the residence, which was in sight of where the two men were stopped, Jones stated that he had read about the group in the paper and "thought that they were weird." The cameraman, believing that Jones was not affiliated with the Davidians, warned him that some type of law enforcement action was going to take place at the residence, that it was likely to be a raid of some type, and that there may be shooting.64 After the cameraman departed, Jones drove directly to the residence and informed the Davidians.

62 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 Koresh 85 (1993) [hereinafter Treasury Department Report].

63 Lewis Gene Barber, a retired lieutenant with the Waco Sheriff's Department, informed the subcommittees during its pre-hearing investigation into these events that local police suspected that there was an "informant" at the ambulance company who had been tipping off the local television station. He stated that on several prior occasions, when police had placed the ambulance company on standby, the station sent a camera crew to the site of the police activity, even though the police had not disclosed it to the station.

64 Treasury Department Report at 85.

2. THE UNDERCOVER AGENT

On the morning of February 28, 1993, at approximately 8 a.m., Robert Rodriguez, the ATF agent who had gone undercover into the Branch Davidian residence on several prior occasions, went to meet with David Koresh one final time. While Koresh and Rodriguez were engaged in a Bible study session, David Jones arrived at the residence and told his father, Perry Jones, what had happened. The elder Jones then informed Koresh that he had a telephone call. Koresh, at first, ignored the statement but, when Perry Jones mentioned that it was long distance from England, Koresh left the room to speak with Jones.65 At this point, David Jones relayed to Koresh his discussion with the television station cameraman.

a. The Treasury Department Report version of events

The Treasury Department Report summarizes the subsequent events as follows:

Upon Koresh's return, Rodriguez could see that he was extremely agitated, and though he tried to resume the Bible session, he could not talk and had trouble holding his Bible. Rodriguez grabbed the Bible from Koresh and asked him what was wrong. Rodriguez recalls that Koresh said something about, "the Kingdom of God," and proclaimed, "neither the ATF nor the National Guard will ever get me. They got me once and they'll never get me again." Koresh then walked to the window and looked out, saying, "They're coming, Robert, the time has come." He turned, looked at Rodriguez and repeated, "They're coming Robert, they're coming."66

According to the Treasury Department Report, Rodriguez went first to the undercover house announcing to the agents there and to James Cavanaugh, deputy tactical coordinator of the ATF operation, that Koresh was agitated and had said the "ATF and the National Guard were coming."67 The report states that Cavanaugh asked Rodriguez whether he had seen any guns, had heard anyone talking about guns, about guns, or had seen anyone hurrying around. Rodriguez responded in the negative to all three questions. Cavanaugh then told Rodriguez to report his observations to Chuck Sarabyn, the tactical coordinator for the raid.68

The Treasury Department Report states that Rodriguez called Sarabyn at the command post telling him that Koresh was upset, that Koresh had said the ATF and the National Guard were coming, and that as Rodriguez left Koresh was shaking and reading the Bible. The report continues that Sarabyn then asked Rodriguez a series of questions from a prepared list provided by the tactical planners concerning the presence of weapons, whether there had been a call to arms, and other preparations the Davidians were making, to which Rodriguez responded in the negative to each question.

65 Id. at 84-89.

66 Id. at 89.

67 Id. at 89.

The Treasury Department Report then notes that Sarabyn left the command post at the Texas State Technical College (TSTC) and went to the tarmac area nearby to confer with Phillip Chojnacki, the overall ATF incident commander, and that Sarabyn told Chojnacki what Rodriguez had said as well as the answers to the questions Sarabyn asked of Rodriguez. The Treasury Department Report states that Chojnacki asked Sarabyn what he thought should be done and that Sarabyn expressed his belief that the raid could still be executed successfully "if they hurried." 69

According to the Treasury Department Report, Sarabyn then went to the staging area, at the Bellmead Civic Center near the TSTC. When he arrived he was excited, "obviously in a hurry," and telling agents "get ready to go, they know we are coming" and "they know ATF and the National Guard are coming. We are going to hit them now." 70

b. Testimony before the subcommittees

At the hearings before the subcommittees, these individuals testified in a manner that was similar to, but not entirely consistent with the summary of these events in the Treasury Department Report. When he testified before the subcommittees, agent Rodriguez expanded upon the Treasury Department's description of the events on the morning of February 28th.

Mr. SCOTT. Mr. Rodriguez, is there was there any question in your mind, having been inside the residence, that Koresh knew that the agents were coming that day?

Mr. RODRIGUEZ. Sir, there's no question in my mind that Koresh knew-there's no question in my mind that Koresh knew that we were coming, yes, sir.

Mr. SCOTT. And can you describe briefly his emotion when he got the word?

Mr. RODRIGUEZ. Yes, sir. We were I was inside the compound, on that day, that morning. I had asked him some questions regarding a newspaper clipping. He sat down and started to explain to me the difference between his preachings and another subject's preachings.

As we were discussing the Bible, one of his subjects, Mr. Jones, came in and advised him that he had a telephone call. He ignored the call and continued to talk to me.

At that point, everything was normal. There was only three people in that living room at that point. Everything was calm. He was normal. He was talking to me as he always spoke to me during all our sessions. Nothing-nothing was wrong.

Mr. Mr. Jones again came to the living room and advised him that he had an emergency call from England. At that time, he quickly got up and left the room. At that time it was still just Mr. Schneider and Sherri Jewell were in that room with me, at that time. He came back approximately 3 or 4 minutes later, and when he came back, I mean it was like day and night.

69 Id. at 91.

As he approached me, he was—he was shaking real bad. He was breathing real hard. At one time he put his hands in his pocket, in his jacket pocket, to probably keep his hands from shaking. He sat down next to me, probably about this far, and he continued to try to finish what he was talking to me about.

When he grabbed the Bible, he was shaking so bad that he could not actually read it. I grabbed the Bible and asked him what is wrong. At that time he stopped, and as I sit here I can remember, clearly, he took a deep breath, he turned and looked at me and said, "Robert, neither the ATF or the National Guard will ever get me. They got me once, and they'll never get me again.' Later, Rodriguez continued his testimony:

"71

Mr. EHRLICH. And what did you do next?

Mr. RODRIGUEZ. I quickly—Ï felt-I felt very threatened and I stood up, felt I had to-I had to leave the compound. By that time, there was more more people that had come into the living room. At first there was only three when we first started.

Mr. EHRLICH. All right, sir. Now, why did you feel you needed to leave the compound?

Mr. RODRIGUEZ. I was threatened because I didn't know I was afraid that I would be exposed as to who I was. And as I stood there, I looked and I noticed that the door-there's people in front of the door, people behind me, there was no place for me to go. As I was as I stood there, Koresh went from one window, did the same thing, looked outside, and came back to the other window and again looked outside and said, they're coming, Robert, they're coming.72

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Mr. EHRLICH. All right, sir. And there came a point in time around 9:15, 9:20 where you left the house, correct?

Mr. RODRIGUEZ. Yes, sir. He finally-he motioned, he gave a head signal, they opened the door for me. I walked out. I got into my vehicle. It took me a while to get it started because I was by then I was-I was pretty shaken. I quickly went back to the undercover house.73

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Mr. RODRIGUEZ. Well, what I did, I went into the—to the room where Mr. Cavanaugh was because that is where the STU phone was. I was supposed to use that telephone to call Mr. Sarabyn. When I got there, we all huddled up and I told Mr. Cavanaugh exactly what had happened in the residence, advised him.

Mr. EHRLICH. And what was his reaction?

Mr. RODRIGUEZ. His reaction was we better call Chuck right now.

71 Hearings, Part 1 at 749.

72 Id. at 768.

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Mr. EHRLICH. All right, sir. You got on the phone and did just that, correct.

Mr. RODRIGUEZ. Yes, sir, I did.

Mr. EHRLICH. And please detail the nature of that conversation.

Mr. RODRIGUEZ. I got the phone, I called. He came to the phone. The only thing I can't remember was if somebody else answered. I think somebody else answered and he came to the phone.

Mr. EHRLICH. Who is he? Mr. Sarabyn?

Mr. RODRIGUEZ. Mr. Sarabyn.

Mr. EHRLICH. OK.

Mr. RODRIGUEZ. And the first thing that came out of my mouth was, Chuck, they know, Chuck, they know, they know we're coming. He says, well, what happened? And I explained to him what happened.

I explained to him all the events that took place inside the compound, and his questions were, well, did you see any guns? I said no.

What was he wearing? And I—I advised him of what he was wearing. At that time, he said OK, and that was about the extent of the phone call.

Mr. EHRLICH. All right, sir. Did you request that the raid be called off because the element of surprise had been lost?

Mr. RODRIGUEZ. No, sir. At that time I really didn't have the chance. It was a real quick question and answer thing. He asked me what he was wearing, said OK and he hung up. That's why-that's why I quickly left the undercover house to go talk to him at the command post because I wanted to have a more-more of a lengthy conversation with him about the events.74

Rodriguez then testified that he drove to the command post, looking for Sarabyn, in order to further discuss with him in person the events of that morning. As Rodriguez testified:

Mr. RODRIGUEZ. I-I arrived at the command post and the first thing I asked was, where's Chuck? Where's Chuck? And they advised me that he had left.

99

At that time, I started yelling and I said, "Why, why, why? They know we're coming, they know we're coming. Mr. EHRLICH. And what reaction did you get, what response?

Mr. RODRIGUEZ. Sir, everything was very quiet, very quiet, and if I remember right, everybody was really concerned. I went outside and I sat down and I remember starting to cry-starting to cry until Sharon Wheeler came to me and told me what was going on.75

While the Treasury Department Report maintains that "all key participants now agree that Rodriguez communicated, and they understood, that Koresh had said the ATF and National Guard were

74 Id. at 769.

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