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instantaneous explosions if used in the vicinity of a methamphetamine lab. Nor is there any evidence that any ATF agents possessed appropriate monitoring equipment to determine the lower explosive limit and the concentration of vapors in the atmosphere, or explosion proof flashlights.
Clearly, ATF disregarded the safety of its agents and innocent civilians. Agencies involved in clandestine lab operations fall under OSHA regulations requiring the following actions by employers: 306 "Communication to employees of clear, unambiguous warnings, as well as provision of educational programs on the hazards of chemical substances."
“Training of all employees who may be exposed to hazardous substances in how to recognize and handle safety and health hazards at laboratory sites, in the use of protective equipment, and in safe work practices." Training must meet OSHA standards.
Examining and monitoring the health of all employees exposed to hazardous substances including documentation of any exposure.
Provide information to employees regarding any hazardous conditions in their work environments.
When agencies fail to adhere to these requirements, "supervisors can be held strictly and severally liable for situations involving employee exposure to hazardous substances and the resulting adverse health effects." 307
2. EVIDENCE PURPORTING TO SHOW THE ALLEGED DRUG NEXUS a. Marc Breault's statement
Coincidentally, after repeatedly being informed by military officials of the drug nexus requirements, Aguilera received a facsimile on December 16, 1992, from Marc Breault in Australia, which according to ATF "suggest[ed] the existence of an illicit methamphetamine laboratory at the Branch Davidian compound." 308 Mr. Breault's facsimile relays that upon taking over the Mount Carmel (Residence of the Branch Davidians) property from George Roden, the former Branch Davidian leader, Koresh found methamphetamine lab equipment and "recipes" and called the Sheriff's Department to turn over the materials.309 It had been long rumored that an individual who used to rent from Mr. Roden was into drugs but he had later gone to prison.310 This individual was no longer on the property when Koresh took over.311
Mr. Breault's facsimile to Special Agent Aguilera also indicated that although Koresh did call the Sheriff's Department and Sheriff's Department personnel did come out to the property, one individual present at the residence when the Sheriff's Department visited said she did not personally observe Koresh turn the lab equipment over to the Sheriff's Department.312 Mr. Breault also stated
306 Bureau of Justice Assistance, supra note 280, at 7 (citing 29 CFR Part 1910). 307 Id. at 8.
308 Memo from Colleen Callahan and Robert Tevens to Geoff Moulton and Lew Merletti, "Chronology and Witnesses Re: Military Support of ATF" (July 14, 1993). Treasury Documents T004589, 004590. Actual facsimile, Treasury Documents T008912.
309 Facsimile from Marc Breault to Special Agent Davey Aguilera (December 16, 1992). Treasury Documents T00008912.
in his facsimile that one night in 1989, Koresh "was talking about trafficking drugs as a way of raising money.313 He [Koresh] seemed very interested in getting money through this means." 314 However, Mr. Breault also admits in his facsimile that he was the only exmember who was present for this statement.315 Mr. Breault goes on to say in the same document that the building in which he implies the drug lab equipment was located burned down in Spring 1990.316 Lt. Col. Gen. Pickler testified before the subcommittees that this information from Mr. Breault regarding a methamphetamine lab also was told to the military by ATF 317 However, military documents indicate that ATF was conveying to the military the presence of an active methamphetamine lab.318
There were at least six significant problems with its credibility as evidence that the Branch Davidians were operating a methamphetamine lab prior to ATF's raid. First, the allegations were very stale by legal standards. ATF received the information more than 5 years after the methamphetamine lab equipment was found and the Sheriff's Department visited the premises to investigate the claim. Second, it is undisputed that Koresh found the methamphetamine lab equipment and Koresh himself called the Sheriff to pick up the equipment. Third, the person rumored to have been involved in drugs was an occupant of the premises prior to Koresh taking over, and subsequently was sent to prison. Fourth, the former leader, Mr. Roden, not Koresh, was suspected of having been involved in illegal drugs. Fifth, the alleged statement by Koresh about drugs could not be verified independently. Sixth, the building Mr. Breault implies housed the methamphetamine materials burned down in 1990, 3 years before the raid.
Perhaps the most disturbing fact about this information, however, is that all of this drug nexus information originated with Mr. Breault, a disgruntled former member who left the group in 1989. The fact that Mr. Breault maintained an extensive biographical data base on present and former members and was working with a self-proclaimed cult-buster Rick Ross in and of itself should have raised questions about Mr. Breault's intentions and credibility to the ATF agents.
Lt. Robert A. Sobozienski, a New York City Police officer who acted as an expert consultant to the Treasury Department's Waco Review Team, summarized the problem with the information Breault provided when he wrote in his Waco Raid Assessment, "Former cult members were interviewed and, apparently much, if not all of their statements are reported to be facts. No thought is given to the idea that these ex-cult members had been away from
314 Id. 315 Id.
317 Hearings, Part 1 at 369-370.
318 There are numerous examples of where ATF indicated to the military there was an "active methamphetamine lab" and "deliveries of precursor chemicals." A few are the February 17, 1993, Operations Order, and the February 2, 1993, letter from Operation Alliance to the Adjutant General of the Texas National Guard counterdrug unit informing them that ATF had requested National Guard assistance in serving a Federal search warrant "to a dangerous, extremist organization believed to be producing methamphetamine." Treasury Documents T005551. See also Defense Documents D-581.
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the residence for some time, or to the individual biases, or if they had an ax to grind with present cult members." 319
ATF agents did check with the McLennan County Sheriff's Department personnel who acknowledged Koresh's request but "found no record" of the removal of methamphetamine lab equipment.320 However, Joyce Sparks 321 states in written testimony, that during her child protective services investigation in 1992 she checked with the Sheriff's Department and was told that Department personnel did receive drug evidence from David Koresh.322 During her interviews with him, Koresh told her that he had given the Sheriff's Department information, pictures, and drug evidence but nothing had ever come of it.323 Koresh complained in his interviews with Sparks that the Sheriff's Department was aware of the illegal methamphetamine lab. 324
The disposal of methamphetamine lab equipment and chemicals presents great risk and significant problems. As a matter of routine, DEA hires certified State and local chemical disposal companies to remove the lab equipment and chemicals for proper disposal under EPA guidelines. 325 Because the cleanup costs can easily total $20,000, or significantly more, depending on the size and condition of the lab site, local law enforcement officials sometimes choose not to remove the lab equipment and chemicals or not to follow the proper environmental guidelines for removal in an effort to avoid the legal liabilities and costs associated with such labs. 326
b. The National Crime Center check
As mentioned earlier, after a December 17, 1992, meeting of SAC Chojnacki, Aguilera and Lt. Col. Walker in which Lt. Col. Walker informed the ATF agents that ATF could receive non-reimbursable military support if a drug nexus existed, ATF Intelligence Research Specialist Sandy Betterton was instructed to search criminal records of Davidians to identify prior drug offenses.327 However, when ATF Special Agent Pali was interviewed by Treasury Agents during the post-Waco review, he admitted that only one Branch Davidian had a prior drug conviction.328
319 Waco Raid Assessment by Lt. Robert A. Sobozienski. Treasury Documents T00021383. 320 Treasury Department Report at 212.
321 Ms. Sparks was an investigations supervisor for the Texas Department of Protective and Regulatory Services, Children's Protective Services, who was interviewed repeatedly by ATF. 322 Prepared statement of Joyce Sparks. See Appendix. [The Appendix is published separately.] 323 Id.
325 The hiring of State and local chemical companies was the result of legislation which corrected the problem of DEA disposing of the methamphetamine lab materials. Each time DEA disposed of a methamphetamine lab, the agency came under the Hazardous Waste laws, as a hazardous waste generator.
326 Although the Sheriff's Department acknowledged visiting the Branch Davidian residence to remove methamphetamine lab materials at Mr. Koresh's request in 1989, there was no record of the actual removal of the methamphetamine lab materials. However, there could be numerous reasons why no such record existed from a Sheriff's call 4 years prior, and without further evidence of the methamphetamine lab's continued use or even its continued existence there is little probative value to Mr. Breault's information. Neither ATF's search warrant nor its supporting affidavit contain any information about suspected illegal drug activity.
327 Memorandum from Colleen Callahan and Robert Tevens to Geoff Moulton and Lew Merletti, "Chronology and Witnesses Re: Military Support of ATF" (July 14, 1993). Treasury Documents T004589, 004590.
c. FLIR hot spot
Treasury Department documents provided to the subcommittees indicate that at the request of ATF, Forward Looking Infrared Radar (FLIR) imaging was taken on January 6, 1993, by the Texas National Guard Guard Counterdrug Counterdrug Unit in a National Guard counterdrug aircraft. Eugene Trevino, a Texas National Guard airman aboard the aircraft, offered an unofficial interpretation of the FLIR photos to the Austin ATF agents in which he stated that the "hot spot" inside the residence "could be indicative of 'a methamphetamine lab.'" 329 It is unclear whether ATF agents solicited Trevino's personal interpretation or if he offered it on his own volition.
Regardless of the impetus for the interpretation, Lt. Col. Pettit and Lieutenant Justice "maintained that only information about grid coordinates was officially provided to ATF” and that “no official interpretation was ever provided to ATF regarding the 'hot spot.' ""330 Even though ATF never sought an official interpretation,331 ATF agents later offered the "hot spot" as direct evidence of a methamphetamine lab to the military when JTF-6 requested additional proof of the drug nexus at a February 4, 1993, meeting.332
Major General Pickler testified that at the February 4 meeting there was some pictorial evidence (i.e., FLIR evidence) that an active methamphetamine lab was on the site of the residence and ATF expected the lab to be there.333 Interviews with DEA agents have revealed that FLIR imaging is not a technique used to identify clandestine drug labs because using "hot spots" as signatures for methamphetamine labs is too unreliable.334 DEA agents have informed subcommittee staff that the use of FLIR imaging to identify an active methamphetamine lab would be a last resort and only as "icing on the cake" under that circumstance.
d. The DEA lab team
Only when General Pickler of JTF-6 continued to request additional evidence of a methamphetamine lab, did ATF indicate it intended to include a lab team from the DEA in the operation.335 Treasury documents indicate that two DEA officials were at the Command Post at the Texas State Technical Institute on the day of the raid; but ATF declined the DEA offer of direct assistance from a DEÁ Clandestine Certified Laboratory Team.336 Such a lab team is specially trained and certified to "take down" active methamphetamine labs. These teams also have the specialized equipment and tactical training required for methamphetamine lab operations.
330 Id. 331 Id.
333 Hearings, Part 1 at 363.
334 Drug Enforcement Administration briefing to the subcommittees (June 8, 1995) and telephone interviews with Drug Enforcement Administration chemists.
335 General Pickler testified that Lt. Col. Bertholf was told at the February 4 and 5, 1993, meeting in Houston that ATF had intended to include a DEA lab team in the Waco operation. Hearings, Part 1 at 369-370.
e. The precursor chemicals used to produce methamphetamine
There are numerous methods to produce methamphetamine. However, certain chemicals required in the synthetic process are themselves incorporated into the molecule of the target drug (in this case methamphetamine),337 These chemicals are referred to as precursor chemicals and their delivery would be evidence that methamphetamine was being produced. While ATF agents repeatedly proffered evidence of deliveries of precursor chemicals to the Branch Davidian residence as proof of an active methamphetamine lab, the Treasury Department has since been unable to locate or produce the documents offered to support its precursor contentions.338
Treasury documents outlining the series of meetings between military, Texas National Guard, and ATF officials, describe a February 4, 1993, meeting held at the SAC/Houston office regarding military support. In attendance were Special Agent Lewis; Special Agent Šarabyn; Lt. Col. Bertholf; Special Agent Pali, ATF coordinator to Operation Alliance; William Enney, Texas State Interagency Coordinator; and Maj. Lenn Lannaham, JTF-6 Liaison. During the meeting, Sarabyn offered ATF documents including a list of methamphetamine precursor chemicals, in support of the drug nexus.339 As a result of the meeting, military support of the Branch Davidian investigation continued.
According to General Pickler's testimony before the subcommittees, Lt. Col. Bertholf was told at the February 4, 1993 meeting in Houston that precursor chemicals were discussed as one of the elements of proof proffered by ATF that an active methamphetamine lab existed and those chemicals may have been on site at the Branch Davidian residence.340 General Pickler testified that the ATF representative, while giving a background briefing as to why ATF had targeted the Davidians, indicated that UPS or shipping documents ATF was tracking included a great deal of precursor chemicals consistent with the production of illegal drugs. 341 However, General Pickler also testified that precursor chemicals were discussed in the context of the possibility of a delivery of those kinds of chemicals much earlier than 1993, but he is not exactly certain which precursor chemicals were there.342
General Pickler's testimony raises several questions: First, what did ATF actually tell the military about precursor chemicals? Second, General Pickler's testimony implies it was that information about deliveries of precursor chemicals that ATF offered when the
337 U.S. Department of Justice, Drug Enforcement Administration publication, Chemicals Used in the Clandestine Production of Drugs at ii (March 1995).
338 On February 2, 1993, ATF Special Agents Pali and Phil Lewis met with representatives of the JTF-6, Texas National Guard and Operation Alliance. Lewis mentioned the delivery of precursor chemicals to the residence. On February 4, 1993, ATF Special Agents Lewis, Pali, and ATF Special Agent Chuck Sarabyn met with representatives from JTF-6 and the Texas National Guard to discuss evidence of a possible drug nexus. Attendees recall Sarabyn showing documents detailing the delivery of precursor chemicals to the residence. However, Treasury has been unable to find those documents. Letter from Department of Treasury to the subcommittees (January 26, 1996) (responding to the subcommittees' request for information on November 16, 1995.)
339 Again, the subcommittees have never received this document listing the methamphetamine precursor chemicals, nor has ATF documentation on the delivery of such chemicals to the Branch Davidian residence been provided.
340 Hearings, Part 1 at 363, 369-370.
341 Id. at 378. The Treasury Department has been unable to locate these documents.