Released through


LEXIS COUNSEL CONNECT is a communications and information service for attorneys. LCC is managed by American Lawyer Media, L.P.


L. Scope of the Indictment and Alleged Prosecutorial Misconduct Before the Grand Jury

1. Introduction

Following Weaver's surrender, the prosecution presented a series of charges against him and Harris to a grand jury on [G.J.]. An indictment was returned on September 16, charging the defendants with the murder of Deputy Marshal Degan and with an assault on Degan and Deputy Marshals Roderick and Cooper. [FN1103]

[G.J.], which returned a superseding indictment on October 1 that included a broad charge of conspiracy by Weaver and Harris. [FN1104]

[G.J.], which returned a second superseding indictment on November 19, setting forth essentially the same charge contained in the October 1 indictment. [FN1105]

On January 8, 1993, counsel for Weaver and Harris filed pretrial motions to dismiss the superseding indictment, in part, because of alleged prosecutorial misconduct that occurred during the grand jury proceedings between September 16 and October 1. The defense claimed that Assistant U.S. Attorney Ronald Howen made improper statements to the grand jury, which were the equivalent of unsworn testimony, and that Howen had elicited irrelevant and protracted testimony regarding the violent criminal activities of white supremacist groups known as the Aryan Nations, Order 1 and Order 2. Defense counsel asserted that this evidence was introduced to inflame the grand jury and prejudice it against Weaver and Harris. [FN1106]

Weaver's counsel also alleged at trial and to this investigation that the conspiracy charged in Count 1 of both superseding indictments was overly broad in that it covered a period beginning in January 1983 and continuing through August 31, 1992. During this investigation, members of the FBI also argued that the scope of the indictment was too broad and should not have included the conspiracy count. Furthermore, defense counsel claimed that the government brought certain charges in the superseding indictments, for which there was no factual basis.

In addition to these allegations, we have also considered whether the prosecution improperly limited the scope of the grand jury's investigation to crimes committed by Weaver and Harris and precluded a broader inquiry into possible crimes committed by law enforcement officers in the shooting of Vicki Weaver. [FN1107] Finally we have examined the propriety of the decision of the government to seek the death penalty in the Weaver case.

2. Statement of Facts

a. Scope of the Indictment: The Conspiracy Count

Count 1 of both superseding indictments alleged the existence of a wide-ranging conspiracy among "Randall C. Weaver, Vicki Weaver, Kevin L. Harris and others known and unknown to the Grand Jury, including some other members of the Weaver family," beginning from the time Weaver moved his family from Iowa to Idaho in 1983 and continuing through Weaver's surrender to authorities on August 31, 1992. The prosecution's theory was that the Weavers and Harris had long planned a violent confrontation with law enforcement, a plan that came to fruition on August 21, 1992, when Harris killed Deputy Marshal Degan. [FN1108]

Weaver's counsel accused the prosecution of "engaging in the 'demonizaiton'" of Randy Weaver by adding the conspiracy count to the original indictment. Defense counsel alleged that the conspiracy count was used to justify the introduction of inflammatory and prejudicial evidence at trial. [FN1109]

Assistant U.S. Attorney Howen had prosecuted a number of Aryan Nations and related cases and was well acquainted with the racist beliefs, violent philosophy, and anti-government sentiments held by those associated with such groups. [FN1110] Among these groups were the Order 1 and the Order 2, which had carried out a series of robberies and bombings in the Northwest in the mid-1980s. [FN1111] Early in the Weaver investigation, Howen noticed similarities between the views expressed by the Weavers and those espoused by members of the Aryan Nations and the Orders. [FN1112] Howen learned that, in a 1983 newspaper interview, Weaver had discussed plans to move from Iowa to Northern Idaho to live in an isolated hideaway and "survive the coming 'great tribulation.'" The article stated that Weaver was "developing defense plans that include[d] a 300 yard 'kill zone' encircling [his] compound." [FN1113]

Howen decided to pattern the charges against Weaver and Harris after indictments he had used in Aryan Nations cases. [G.J.] [FN1114]



Assistant U.S. Attorney Lindquist, who helped Howen draft the indictment, told this investigation that he and Howen knew that they would have to address the death of Vicki Weaver in the government's case. He reasoned that it would be strategically wiser to acknowledge the events of August 22 forthrightly at trial than to permit the defense to use the government's failure to mention these events to their advantage with the jury. [FN1116]

Howen and Lindquist also feared that the trial court would not allow the prosecution to introduce evidence of the Weavers' past conduct to prove their intent to provoke a violent confrontation with law enforcement officials, unless that conduct was included in the indictment. [FN1117] They, therefore, sought to establish that Randy Weaver, his family, and Kevin Harris had formed a conspiracy to resist the U.S. Government and to assault government and to assault government agents and that the conspiracy began to take shape in Iowa as far back as 1983. [FN1118] The objects of the conspiracy were set forth in the indictment:

1. To forcibly resist, oppose, impede, interfere with, intimidate, assault and/or otherwise cause a violent confrontation with law enforcement authorities in the engagement in or on account of the performance of their official duties of enforcing the laws of the United States. . . as to said Randall C. Weaver, Vicki Weaver, Kevin L. Harris and others;

2. To purchase, develop and maintain a remote mountain residence/stronghold;

3. To illegally and otherwise make, possess, sell and/or conceal firearms and ammunition;

4. To fail to appear for trial on pending federal criminal charges after orally and in writing agreeing to appear for trial before a federal judge;

5. To hinder or prevent the discovery, apprehension, arrest and trial of federal fugitives from justice;

6. To steal, conceal, retain and/or convert the personal property of others to their own use;

7. To intimidate neighbors, as well as law enforcement officers and agents, by the use, display, threat to use and/or discharge of firearms;

8. To use, display, threaten to use, fire and/or discharge firearms at or near human beings, vehicles and/or aircraft; and

9. To assault, shoot, wound, kill and/or murder, or threaten to cause such to occur. . . by means of the use of deadly weapons. . . . [FN1119]

The proposed conspiracy count initially listed 28 overt acts, including the 1983 newspaper interview, the Weavers' move to Idaho in 1983, the shooting death of Deputy Marshal Degan, and an attempt to take offensive action against a helicopter, which resulted in the death of Vicki Weaver. An additional 14 overt acts were added to the second superseding indictment.

The U.S. Attorney's Office in Idaho did not have a formal review process for indictments. [FN1120] That office also did not require a prosecution memorandum for evaluating proposed indictments. However, Howen did discuss the superseding indictment with Ellsworth, who approved the conspiracy count.

Howen and Lindquist also discussed the proposed conspiracy count with representatives of the Marshals Service, BATF, the FBI, and the Department of Justice. They received conflicting opinions as to the wisdom of including such a count. Henry Hudson, Director of the U.S. Marshals Service during the Weaver/Harris prosecution, spent several hours reviewing the indictment and believed that the conspiracy count detracted from the most significant charge which was the murder of Deputy Marshal Degan. [FN1121]


[FN1122] FBI case agents Venkus and Rampton also disagreed with the conspiracy theory. [FN1123]



None of the counts charged in the indictment required review or approval by the Department of Justice. Nonetheless, Howen sought input from the Department. James Reynolds, Chief of the Criminal Division's Terrorism and Violent Crimes Section, and Deputy Section Chief Dana Biehl had reservations about the manner in which the indictment had been drawn. However, since DOJ had no supervisory control over the case, they did not seek to impose their views on the prosecution. [FN1125]

b. Evidential Support for Certain Overt Acts and Substantive Offenses

Defense counsel, both in pretrial motions and in an interview with this inquiry, claimed that "a great majority" of the overt acts alleged in the indictment as part of the conspiracy count were without evidentiary support and should not have been charged. [FN1126] The defense also complained that many of the overt acts were not, in themselves, criminal or had no relation to the object of the conspiracy.

The defense asserted in pretrial motions that Count 1 of the indictment, which charged a wide ranging conspiracy, forced them to defend against "alleged crimes that are irrelevant to the case." [FN1127] The overt acts challenged included those set forth in the following paragraphs of the second indictment:

7. On or about May 6, 1985, Randall C. Weaver and Vicki Weaver mailed a letter addressed to the President of the United States and the . . . United States Secret Service; . . . .

32. On or about April 18, 1992, Randall C. Weaver, Vicki Weaver, or Kevin L. Harris shot at or near a helicopter and its occupants; . . . .

36. On or about May 2, 1992, Randall C. Weaver and Kevin L. Harris stole a video camera and other equipment, later destroying it or converting it to their own use; . . . .

38. On or about August 3, 1992, Randall C. Weaver, Vicki Weaver, Kevin L. Harris and/or some other members of the Weaver family stole a water tank and pipe belonging to another;

39. On or about August 17, 1992, Kevin L. Harris and/or some other members of the Weaver family attempted to enter a residence occupied by another and took or attempted to take the personal property of others; . . . .

41. On or about August 22, 1992, Randall C. Weaver or Kevin L. Harris and an unidentified female, probably Vicki or Sara Weaver, took offensive action against a helicopter and its occupants, including attempting to shoot at the helicopter, resulting in the death of Vicki Weaver and the wounding of Kevin L. Harris and Randall C. Weaver. . . . [FN1128]

The defense also claimed that there was no evidence to support the allegation that Randy Weaver shot Deputy Marshall Degan on August 21, 1992 and fired at the other marshals. The trial court adopted the finding of Magistrate Judge Boyle, who ruled that the overt acts complained of were relevant to the defendants' role in the conspiracy and that statements, acts, and threats of violence against other bore upon issues such as premeditation and malice. [FN1130]

The court dismissed Counts 6 and 8 on the defendants' motion at the conclusion of the prosecution's case-in-chief. Count 6, which charged Weaver and Harris with assaulting federal officers in a helicopter on August 22, 1992, was dismissed because the court found no evidence that the officers knew of the assault. The court considered this knowledge to be an element of the offense. Count 8, which charged the receipt and possession of firearms by a fugitive, was dismissed because the court found no proof that Randy Weaver had travelled across state lines, as is required by the statute under which the crime had been charged.

c. [G.J.]

[Editor's Note: Pages 334-355 were omitted, which included footnotes 1131 to 1174.]

f. Decision to Seek the Death Penalty

Count 5 of the second superseding indictment charged Randy Weaver and Kevin Harris with the murder of Deputy U.S. Marshal William Degan while he was "engaged in or on account of the performance of his official duties." [FN1176] Section 1111 of Title 18, provides for a sentence of death or life imprisonment upon conviction for the murder of a federal officer.

Department of Justice policy requires the approval of the Department's Criminal Division before a U.S. Attorney may recommend application of the death penalty. [FN1177] Although the prosecution did not request permission to try the Weaver matter as a capital case for several months, the trial court considered it a potential death-penalty case from the time the first indictment was returned charging Weaver and Harris with Degan's murder. The Court advised both defendants at their arraignments that the maximum penalty for conviction on that count was death and, as a consequence, gave them additional appointed counsel, increased the compensation given to counsel, and provided for additional investigative expenses. [FN1178]

On January 8, 1993, the defense filed a motion claiming that the possible penalties for Count 5 could not, under the Constitution, include the death penalty. The defense argued that the capital punishment provision of 18 U.S.C. 1111 had been invalidated by virtue of the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972) and subsequent rulings by the Ninth Circuit. [FN1179] The prosecution responded that the capital provision of section 1111 was still viable and that the Court could fashion standards for its application that met the requirements of Furman. [FN1180] The prosecution's response recognized that this position had been rejected by the Fifth Circuit and by the District of Alaska. [FN1181]

While the decision on the defense motion was pending, U.S. Attorney Ellsworth applied to the Terrorism and Violent Crime Section of the Criminal Division of the Department of Justice for authorization to seek the death penalty. As justification for the request, Ellsworth wrote:

[T]he mutual premeditation [of Weaver and Harris], founded in racial bigotry and baseless hatred for authority, is cold and heinous in its direction at law enforcement. . . . The death of [Deputy Marshal] Degan was the direct and planned result of Weaver's selfish and monstrous proclamation that "[t]he tyrant's blood will flow." His legal and moral accountability fully supports imposition of the death penalty. [FN1182]

The Terrorism and Violent Crimes Section recommended against Ellsworth's request because it did not think that the death penalty would survive a constitutional challenge under the statute. James Reynolds, Chief of the Terrorism and Violent Crimes Section, also had doubts about the seriousness of the U.S. Attorney's request. [FN1183]

The application was transmitted to Associate Deputy Attorney General David Margolis, who believed that the killing of a federal law enforcement officer warranted the death penalty and that the penalty was constitutional as applied under the statute. However, he also shared Reynolds' reservations about the seriousness of the U.S. Attorney's intentions and thought it was possible the U.S. Attorney was "going through the motions." [FN1184] Margolis then telephoned Ellsworth and spoke with him and Assistant U.S. Attorney Howen. They assured Margolis that the case was sound and that they were seriously pursuing the death penalty in this matter. [FN1185]

Thereafter, Margolis discussed the matter with Deputy Assistant Attorney General John C. Keeney. Both men were swayed by the serious nature of the charge, and they decided to approve the request to seek the death penalty. [FN1186] In making the decision, Margolis recognized that guilt would have to be proven beyond a reasonable doubt before the death penalty could be invoked. [FN1187] Ellsworth was given formal permission to seek the death penalty through a letter from the Acting Attorney General. [FN1188]

Shortly thereafter, on February 26, 1993, the trial court issued an order adopting the defense's position that the death penalty provision of 18 U.S.C. 1111 was void under Furman and Ninth Circuit precedent. [FN1189]

3. Discussion

a. Scope of the Indictment: The Conspiracy Count

It would be illogical and unfair to infer from the trial jury's verdict of acquittal on the conspiracy count that the prosecution's theory was wholly unfounded or wrongfully contrived. We have found no evidence that the prosecution acted without a good faith belief that sufficient proof existed to support the conspiracy charge, notwithstanding the often harsh accusations made by the defense before and during trial. That does not mean, however, that it was prudent to extend the scope of the conspiracy to 1983.

Howen and Lindquist were concerned that, without a conspiracy charge, they would not be permitted to introduce evidence of the Weavers' past statements and conduct to explain the events leading up to the shooting on August 21, 1992. Count 2 of the indictment charged that the earliest substantive offense committed by Weaver, the sale of two sawed-off shotguns, occurred in October 1989. The BATF informant involved in that transaction first met Weaver at the World Aryan Congress in 1986, and there were tape recordings of conversations involving Weaver and the informant beginning in January 1987. Evidence of the circumstances under which the informant met Weaver would almost certainly be admitted, even without a conspiracy charge, especially since the defense claimed that Weaver had been entrapped into making the sales. Likewise, letters and statements following Weaver's arrest on the weapons charge in January 1991 showing that Weaver would not submit to authorities would have been admissible with regard to Count 3, which charged Weaver with failure to appear for trial.

On the other hand, by describing the conspiracy as beginning in 1983, the prosecution was able to introduce evidence of the interview, in which Weaver discussed plans to move from Iowa to Northern Idaho and develop a "300 yard 'kill zone'" around his house. This was a key element of the conspiracy theory.

Many of the criticisms of the conspiracy theory are legitimate. For instance,



[G.J.] However, at trial, the defense effectively attacked the theory, claiming that the Government was trying to "demonize" Weaver by charging that everything he did proved that he hated the Government. [FN1191] Allegations that acts such as moving to Idaho and building a cabin were proof of a conspiracy clearly had the capacity to distract the trial jury from the killing of Deputy Marshal Degan.

As for the defense claim that many of the overt acts charged in the conspiracy count were without evidential support, the magistrate denied the defense motion to dismiss the indictment after considering whether the allegations about which the defense had complained were "relevant to the charge contained in the indictment and [were] inflammatory and prejudicial." [FN1192] We have made the same inquiry.

Overt Act 7 refers to two letters written by Randy and Vicki Weaver on May 6, 1985, [FN1193] which allegedly contain threats made by Randy Weaver against former President Reagan. Deputy Boundary County Sheriff Ekstrom testified that the U.S. Secret Service had investigated Randy Weaver in February 1985. Shortly thereafter, on February 28, 1985, the Weavers filed a handwritten affidavit with the Boundary County Clerk, claiming that certain persons were conspiring to place Weaver and his family in danger and to precipitate an attack on his life. The affidavit alleged that his "accusers" made false statements about his connections with the Aryan Nations, his ownership of illegal weapons, and threats he allegedly made against the President and the Pope. Weaver wrote that the plot was designed to provoke the FBI into storming his home. He also expressed the fear that he would be killed or arrested for assaulting a federal officer, if he tried to defend himself. The affidavit stated: "I make legal and official notice that I believe I may have to defend myself and my family from physical attack on my life." [FN1194]

We agree that the Secret Service investigation and the February 1985 affidavit were relevant to whether Weaver planned a violent confrontation with law enforcement. However, we do not believe that the letters written in May 1985 were relevant to the issue. One letter was an apology to President Reagan, in which Weaver claimed that his neighbors had sent the President a threatening letter under his name. The other letter demanded a written apology from the Secret Service for falsely accusing him of making the threats. [FN1195] Neither letter appears to have furthered the overall conspiracy.

Overt Act 32 alleged that a helicopter with a television crew had been shot at as it flew near the Weaver residence. When the first superseding indictment was presented to the grand jury, the prosecution had evidence that no shots had been fired at the helicopter. [FN1196]


[FN1197] The failure of the prosecution to do either is significant. The justification given by the FBI sniper for shooting at Randy Weaver on August 22, 1992 was that he believed that Weaver and Harris were preparing to shoot at an FBI helicopter flying nearby. [FN1198] Evidence that Weaver and Harris had fired at a helicopter earlier would certainly have tended to bolster the sniper's testimony. The grand jury was entitled to a balanced view of the alleged incident.




[FN1200] We find that this evidence was pertinent to at least one of the objectives of the unlawful agreement alleged in the conspiracy count: "hinder[ing] or prevent[ing] the discovery, apprehension, arrest and trial of federal fugitives from justice." Overt Act 36 was thus properly included in the indictment.

We also conclude there was adequate evidence to support the inclusion of Overt Acts 38 and 39, which alleged the theft of property belonging to the Rau family.





As noted above, one of the objectives of the unlawful agreement alleged in the conspiracy count was "[t]o steal, conceal, retain and/or convert the personal property of others." Evidence regarding the theft of the Raus' property bore on that allegation. [FN1204] Moreover, the Weavers' harassment of the Raus was a factor in the marshals' decision to resume surveillance of the Weaver property in August 1992. It was not improper to include these allegations in the indictment.

In regard to the charge in Overt Act 41 that Randy Weaver, Kevin Harris, "and an unidentified female, probably Vicki or Sara Weaver" attempted to shoot at an FBI helicopter, Special Agent Hoiruchi testified that he saw three persons run out of the Weaver cabin upon hearing the helicopter, one of whom he identified as Kevin Harris. [G.J.] The prosecution knew full well when Overt Act 41 was drafted that Vicki Weaver had been killed while holding open the door of the cabin for the three persons who had responded to the helicopter, one of whom was a female. Even though Horiuchi could not identify the female, the prosecution had abundant evidence that Vicki Weaver had not run outside. Naming Vicki Weaver as one of the people who might have responded to the helicopter could readily be interpreted as an attempt to assert that Horiuchi was justified in shooting her. It was careless and wrong for the indictment to charge than "an unidentified female, probably Vicki or Sara Weaver" took offensive action against the helicopter. [FN1205]

The prosecution never contended that Randy Weaver shot Degan, but it did assert that Weaver, Harris, and the other family members engaged in joint criminal activity that included murder, conspiracy, and assault on the marshals.




Although Overt Act 40 does not specifically state that Weaver was being charged as an aider and abetter, the section of the conspiracy count defining the roles of the participants states that Weaver "committed the crimes of aiding and abetting murder and attempted murder." [FN1208] Count 5, which corresponds with Overt Act 40, also alleges that "Kevin L. Harris, as aided, counseled, induced or procured by Randall C. Weaver . . . did . . . shoot, kill and murder one William F. Degan. . . ." It is also evident that Weaver was charged as an aider and abetter in Count 5 with respect to shots fired at the other marshals during the confrontation at the Y.



We believe that several of the overt acts discussed above should not have been included in the indictment. This appears to have been the result of overzealousness, or perhaps poor judgment, but not malice, on the part of the prosecution. However, the allegation that Randy Weaver was the moving force behind the violent confrontation that caused Kevin Harris to shoot at the four marshals, killing William Degan, was amply supported by evidence presented to the grand jury.

We have found no intent of behalf of the prosecution to charge Counts 6 and 8 knowing there was insufficient proof of the elements of those offenses. Howen acknowledged to this inquiry that a more thorough researching of these statutes would have spared the government judicial dismissal of the counts. [FN1210] However, we find no impropriety in the charging of these counts. [FN1211] The conspiracy theory presented by the prosecution undoubtedly had the capacity to distract the trial jury from the killing of Deputy Marshal Degan. That is not to say that the prosecutors would have avoided acquittals by charging the case differently. The defense focused heavily on the arguments that Randy Weaver had been entrapped into making the weapons sale to the BATF informant, that firing at the marshals was an act of self defense, and that there was no justification for the shooting of Sammy and Vicki Weaver. We cannot assume that this approach would have failed, had the case been prosecuted solely on the murder charge and a few other substantive offenses. The case would be difficult, no matter how it was charged.

We believe that some of the prosecution's difficulties could have been avoided by a more formal review of the indictment within the U.S. Attorney's office. The conspiracy theory was not seriously tested until after the indictment had been returned. In a case of this complexity, it would have been advisable for the office to have a written prosecution memorandum for discussion before seeking an indictment.

b. [G.J.]

[Editor's Note: Footnotes 1212 to 1217 were omitted here as were pages 366 to 367.]

It is not improper for a prosecutor to express an opinion as to the merits of the case "as long as it is clear to the jury that the opinion is based only on the evidence that is before the jury and the jury itself can evaluate." [FN1219] We have found certain instances when Howen's comments went beyond explanation or summaries of the evidence and bordered on statements of personal knowledge. Howen's questioning of [G.J.]










Prosecutors are accorded wide latitude in presenting their cases to the grand jury. [FN1226] However, although the prosecutor "properly has wide discretion in grand jury proceedings . . .this discretion is not boundless." [FN1227]

The Department of Justice has set forth general standards of conduct for prosecutors before the grand jury:

In his/her dealings with the grand jury, the prosecutor must always conduct himself/herself as an officer of the court whose function is to insure that justice is done and that guilt shall not escape nor innocence suffer. He/she must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges. The prosecutor's responsibility is to advise the grand jury on the law and to present evidence for its consideration. In discharging these responsibilities, he/she must be scrupulously fair to all witnesses and must do nothing to inflame or otherwise improperly influence the grand jurors. [FN1228]

The court's pretrial ruling that there was no misconduct regarding the presentation of evidence concerning the Aryan Nations and the Order is not conclusive for purposes of this inquiry. We agree, [G.J.] that some background on [G.J.] was important to put in context the tape recordings of Weaver and the BATF informant and to define words and phrases used in those conversations. [FN1229] Howen had been permitted to introduce similar evidence in past Aryan Nations prosecutions, and those convictions had been affirmed on appeal. [FN1230] We also recognize the need to clarify Vicki Weaver's citation to "Mathews" in a letter to the U.S. Attorney. However, we believe that the volume of evidence presented [G.J.] went beyond that which was necessary to accomplish those goals. [FN1231] For instance, [G.J.]

Other examples of problematic testimony abound.

[G.J.] [FN1232] Unless it is relevant to the offenses under the investigation, comments linking the accused to a criminal class are also inappropriate. [FN1234] It is generally improper to elicit testimony deliberately on irrelevant and prejudicial matters. [FN1234]


Such expressions serve no legitimate purpose, other than to suggest to the grand jurors that the prosecutor, as an expert in cases like the one before them, should be accorded particular credibility. That is not a fitting posture for a prosecutor to assume.





c. [G.J.]

The United States Attorneys' Manual provides that the prosecutor is "to advise the grand jury on the law and to present evidence for its consideration." [FN1238] Instructions on the law must be accurate and not deliberately misleading. [FN1239] Although an indictment returned "by a legally constituted and unbiased grand jury" is presumed valid, [FN1240] an indictment may be subject to challenge, if the prosecutor's instructions are so flagrantly erroneous that the grand jury is deceived in some significant way. [FN1241]








Rather, we attribute this failure in part to an institutional weakness existing between the USAO and the FBI. The prosecutors knew that the FBI had conducted an internal inquiry into the shooting and that the FBI had concluded that the shooting was within established rules and regulations. Such findings are not, as a routine matter, subject to examination by prosecutors or persons outside the FBI. Thus, the FBI considered the issue closed and resisted any act or inquiry which could be interpreted as challenging the actions of the HRT. Indeed, we have found that the FBI frustrated the prosecutors' efforts to interview FBI headquarters witnesses, [G.J.], and withheld documents relating to the shootings, including the shooting incident report. This created an environment in which the USAO was unlikely to even contemplate the HRT members being subjects of a criminal investigation especially since the USAO believed that the shooting incident had already been examined in an administrative review of the incident.

d. Decision to Seek the Death Penalty

Finally, regarding the decision to seek the death penalty, Ellsworth and Howen were aware that case law in the Ninth Circuit did not support the application of the death penalty in circumstances such as those presented by the Weaver/Harris case. [FN1246] The prosecution chose to proceed based on arguments raised by the Department of Justice in an appeal then pending before the Ninth Circuit. [FN1247] We do not fault the prosecution for adopting the Department's legal theory and seeking a ruling from the trial court based on that theory.

We do, however, share the misgivings expressed by some members of the Department of Justice as to whether this was factually an appropriate case for imposition of the death penalty. [FN1248] Keeney and Margolis appear to have deferred to the Ellsworth and Howen's representations about the strength of the proof in the case. [FN1249] Ellsworth and Howen assured them and this investigation that they were serious and wanted to proceed with the request. [FN1250]

There is no evidence to dispute the good faith of the prosecution in making the application to seek the death penalty. [FN1251] We are not convinced, though, that the confidence expressed by the U.S. Attorney's Office that this case presented a good set of facts to test the viability of the death penalty in Idaho was justified.

4. Conclusion

We share many of the reservations about the scope of the conspiracy count expressed by members of the Marshals Service and the FBI. Although we did not find that the prosecutors charged Weaver and Harris in bad faith, we believe that their judgments were not always as thoughtful and well reasoned as they should have been.



Finally, the decision to seek the death penalty may be viewed as overarching by the prosecution.

Released through


LEXIS COUNSEL CONNECT is a communications and information service for attorneys. LCC is managed by American Lawyer Media, L.P.


1103. See 18 U.S.C. 2, 111, 115, 1111, and 1114.

1104. [G.J.]

1105. See Indictments in United States V. Randall C. Weaver and Kevin L. Harris, dated September 16, October 1, and November 19, 1992.


1107. Defense counsel also charged that the prosecution withheld exculpatory information from the grand jury by failing to disclose a letter the Probation Office sent to Weaver, which referenced an incorrect date for his trial. See Memorandum from AIIP Daniel J. Wehr to Inspectors Roger Nisley and Paul Mallett, September 1, 1993, at 4. This issue is discussed in Section IV(B), supra.


1109. See Memo from AIIP Daniel J. Wehr to Inspectors Roger A. Nisley and Paul E. Mallett, September 9, 1993, at 11-12. At trial, Weaver and Harris were acquitted of the conspiracy count. Harris was acquitted on all the other counts that went to the jury. Weaver was convicted only on Count 3, failure to appear for trial on the original firearms violation, and Count 9, committing an offense while on pretrial release.

1110. Howen Interview, Tape 1, at 8-13. See, e.c., United States V. Winslow, 962 F.2d 845, 847 (9th Cir. 1992); United States v. Cutler, 806 F.2d 933, 934 (9th Cir. 1986).

1111. See Section IV(A), supra.

1112. In February 1991, U.S. Attorney Ellsworth showed Howen a letter he had received from Vicki Weaver addressed to the "Queen of Babylon." Howen identified a quotation Vicki Weaver used as a passage from the "Declaration of War" by Robert Mathews, the founder of a white supremacist group called "The Order." See "Declaration of War" by Robert Mathews, et al., November 25, 1984; Howen Interview, Tape 3, at 19-22.

1113. "Survivalist Makes Plans for Time of 'Great Tribulation,'" Waterloo Courier, January 9, 1983, at Bl; Objection to Report and Recommendation and/or Motion for Reconsideration, January 8, 1993, at 2-3.

1114. The initial indictment only charged Harris and Weaver with the murder of Deputy Marshal Degan and with the assault on Degan and two other deputy marshals. Howen began presenting evidence of the conspiracy immediately after that indictment had been returned.

1115. [G.J.]

1116. Lindquist Interview, Tape 1, at 40.

1117. Howen and Lindquist thought that the court might exclude evidence of past conduct under Rule 404(b) of the FederaL Rules of Evidence, which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

1118. See Howen Interview, Tape 11, at 31.

1119. See Second Superseding Indictment, United States v. Randall C. Weaver and Kevin L. Harris, CR92-080-N-EJL, dated November 19, 1992.

1120. Ellsworth Interview, Tape 6, at 10; Howen Interview, Tape 11, at 42.

1121. FD-302 Interview of Henry Hudson, November 15, 1993, at Director Hudson, a former U.S. Attorney for the Eastern District of Virginia, believed that the case should have been kept as simple as possible because a more narrow indictment would prohibit the defendants from bringing in extraneous information. He said that, if he has been the U.S. Attorney, he would not have authorized such a broadly drawn indictment. The marshals assigned as case agents for the prosecution, however, were more supportive of the conspiracy charge. Sworn Statement of John Stafford, October 20, 1993, at 8-9; Sworn Statement of Robert Masaitis, October 20, 1993, at 17. Special Agent Herb Byerly, the BATF case agent for the prosecution, also concurred with the conspiracy theory. Sworn Statement of Herbert Byerly, October 22, 1993, at 24.

1122. [GARRITY]

1123. See Byerly Sworn Statement, October 22, 1993, at 24.

1124. [GARRITY]

The report was later the subject of a protracted argument between the Idaho U.S. Attorney's Office and FBI Headquarters, which was withholding the report. See Section IV(M), supra.

1125. FD-302 Interview of James Reynolds, October 8, 1993, at 6-7; FD-302 Interview of Dana Biehl, August 9, 1993, at 2.

1126. Memo from AIIP Daniel F. Wehr to Inspectors Roger A. Misley and Paul E. Mallett, September 9, 1993, at 12. That much may be inferred from the fact that Weaver and Harris were acquitted on the conspiracy count. However, we do not find this verdict, which could have been based on various factors, conclusive of our inquiry.

1127. Weaver's counsel initially raised this issue in a Motion to Strike Surplusage contained in the Superseding Indictment and argued that certain overt acts did not allege federal offenses and should be stricken. Memorandum in Support of Motion to Strike Surplusage November 13, 1992, at 8-9. That motion was referred to U.S. Magistrate Judge Larry M. Boyle, who agreed that certain language should be stricken from the indictment as surplusage but denied the request that overt acts, which constituted nonfederal crimes, be stricken. Order, Report and Recommendation, January 8, 1993, at 9 (hereinafter cited as "Boyle Order").


Judge Lodge found Judge Boyle's ruling on the issue dispositive and denied the motion. Order, February 26, 1993, at 16 (hereinafter cited as "Lodge Order").

1128. Second Superseding Indictment, United States v. Randall C. Weaver and Kevin L. Harris, returned November 19, 1992.



1131. [G.J.]

1132. [G.J.]

1133. [G.J.]

1134. [G.J.]

1135. [G.J.]

1136. [G.J.]

1137. [G.J.]

1138. [G.J.]

1139. See [G.J.]

1140. [G.J.]

1141. [G.J.]

1142. See [G.J.]

1143. [G.J.]

1144. [G.J.]

1145. [G.J.]

1146. [G.J.]

1147. [G.J.]

1148. [G.J.]

1149. [G.J.]

1150. [G.J.]

1151. [G.J.]

1152. [G.J.]

1153. [G.J.]

1154. [G.J.]

1155. [G.J.]

1156. [G.J.]

1157. [G.J.]

1158. [G.J.]

1159. [G.J.]

1160. [G.J.]

1161. [G.J.]

1162. See [G.J.]

1163. See [G.J.] [G.J.]

1164. [G.J.]

1165. [G.J.]

1166. [G.J.]

1167. [G.J.]

1168. [G.J.]

1169. [G.J.]

1170. [G.J.]

1171. [G.J.]

1172. [G.J.]

1173. [G.J.]

1174. [G.J.]

1175. Howen Interview, Tape 8, at 18.


1176. See 18 U.S.C. 2, 115, 1111 and 1114.

1177. U.S. Attorney's Manual 9-2.148 (1992).

1178. See Order Respecting Potential Penalty, February 26, 1993, at 1; Memorandum [on behalf of Harris] in Support of Motion for Order Respecting Potential Sentence, January 8, 1993, at 3-4 (hereinafter cited as "harris Death Penalty Memo"); Memorandum [on behalf of Weaver] in Support of Motion for Order Respecting Potential Sentence, January 14, 1993, at 3-4 (hereinafter cited as "Weaver Death Penalty Memo").

1179. Harris Death Penalty Memo, at 3-4, 6. See United States v. Harper, 729 F.2d 1216, 1225 (9th Cir. 1984). Counsel for Weaver subsequently joined in the motion. Weaver Death Penalty Memo, at 3-4.

1180. Furman requires that 1) the sanction of death be proportionate to the crime; 2) the sentencing scheme narrow the class of persons eligible for the death penalty and reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder, and 3) the sentencer be allowed to consider all evidence that tends to mitigate moral culpability and militate against a sentence of death. See Zant v. Stephens, 462 U.S. 862, 877 (1983); Response to Motion for Order Respecting Potential Sentence, January 25, 1993, at 2-4.

1181. See United States v. Woolard and Bruner, 990 F.2d 819 (5th Cir. 1993); United States v. Cheely, 814 F.Supp. 1430 (D. Alaska 1992). The prosecution made no additional argument other that those made by the Department of Justice in its brief appealing the decision in Cheely to the Ninth Circuit, namely the district court could fashion procedures to govern the sentencing proceedings.

1182. Letter from Maurice Ellsworth to Jim Reynolds, January 27, 1993.

1183. Associate Deputy Attorney General David Margolis told this investigation that Reynolds also did not support the request because the trial judge had said that he would declare the death penalty provision for this statute unconstitutional, if it were invoked. Margolis added that Reynolds thought the facts of the Weaver case were "somewhat 'muddy.'" FD-032 Interview with David Margolis, December 10, 1993, at 1-2.

1184. Id. at 2.

1185. Id. at 2-3.

1186. FD-302 Interview of John D. Keeney, December 10, 1993, at 1; Margolis FD-302, at 2-3.

1187. Margolis FD-302, at 3.

1188. See Letter from Acting Attorney General Stuart M. Gerson to Maurice Ellsworth, February 19, 1993.

1189. See Order Respecting Potential Penalty, February 26, 1993, at 2-3. See also United States v. Steel, 759 F.2d 706, 709 (9th Cir, 1985); United States v. Kennedy, 618 F.2d 557, 558, (9th Cir. 1980).

1190. [G.J.]

1191. Closing Argument of Gerry Spence, June 15, 1993, at 10.

1192. See Boyle Order at 8; United States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 1988) (motion to strike surplusage language from an indictment is within the sound discretion of the trial court).

1193. The alleged threats also included threats against then Governor John Evans and law enforcement officials. Ekstrom did not mention that the Secret Service interviewed Weaver and found the accusations to be without foundation. See Section IV(A).

1194. See [G.J.]

The affidavit was included in the indictment as overt act 6.

1195. See Letter from Patrick F. Sullivan, Assistant Special Agent in Charge, U.S. Secret Service (Seattle) to Chris Nelson, Special Agent in Charge, BATF (Seattle), August 28, 1992, at 2.

1196. Only one of the four people in the helicopter thought he heard shots; the other three heard nothing of were certain that the helicopter had not taken fire. A photographer in the helicopter saw someone gesture at the helicopter and thought he heard two shots on a boom microphone. FD-302 Interview of Dave Marlin, September 16, 1992. However, another passenger said that no shots has been fired and that "it would have been 'grossly unfair' to accuse the Weavers of shooting." FD-302 Interview of Richard Weiss, September 11 & 18, 1992, at 1-2; see FD-302 Interview of Brooke Skulski, September 28, 1992. Weaver denied that shots had been fired at the helicopter. "Fugitive: No Surrender," Cour D'Alene Press, May 3, 1992, at 1. Deputy property on the day of the alleged shooting, but was unaware of any evidence that shots had been fired. See Report of Investigation by Mays, April 18, 1992.

1197. See U.S. Department of Justice, Federal Grand Jury Practice, January 1993, at 104; United States Attorney's Manual 9-11.233.

1198. See [G.J.]

1199. [G.J.]

For a discussion of the installation of the surveillance cameras, see Section IV(C).

1200. [G.J.] the charred remains of the camera equipment were found near the Weaver house after Weaver surrendered. A battery from the camera was also found intact. Moriarty FD-302, at 6.

1201. [G.J.]

1202. [G.J.]

1203. [G.J.]

1204. We note that, compared to the other charges facing Weaver and Harris, the theft of the water system and gasoline was a trivial matter unlikely to prejudice the jury unduly.

1205. We reject the assertion that Vicki Weaver aided and abetted offensive action against the helicopter by hoding the door open. From Horuichi's testimony, it is clear that the threat to the helicopter had ceased by the time Randy and Sara Weaver and Harris ran to the cabin. The overt act alleges that the named individuals personally threatened the helicopter.

1206. [G.J.]

Cooper Trail Testimony, April 15, 1993, at 122-24.

1207. [G.J.]

1208. The conspiracy count also cites 18 U.S.C. 3, which defines an accessory after the fact as someone who, "knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment." The grand jury heard extensive testimony about the week-long standoff with authorities which followed the shooting at the Y.

1209. [G.J.]

1210. Howen Interview, Tape 11, at 21-22.

1211. A prosecutor should not pursue criminal charges when he "knows that the charges are not supported by probable cause," or where there is "insufficient admissible evidence to support a conviction." ABA Standards for Criminal Justice: The Prosecution Function, Standard 3-3.9(a) (3d. ed. 1992). The investigative team did not find that Howen continued the prosecution knowing that there was not sufficient evidence to support the charges.

1212. See [G.J.]

1213. See [G.J.]

1214. [G.J.]

1215. [G.J.]

1216. [G.J.]

1217. United States v. Troutman, 814 F.2d at 1443. See also ABA Model Code of Professional Responsibility, DR 5-101(B) (1) and (2).

1218. [G.J.]

1219. United States v. McKenzie, 678 F.2d 629, 632 (5th Cir.), cert. denied, 459 U.S. 1038 (1982). See U.S. Department of Justice, Federal Grand Jury Practice, January 1993, at 63.

1220. Lanceley complained to this inquiry that he thought that Howen "put him on the spot" by asking a series of questions that were "beyond his knowledge. . . and area of responsibility." Lanceley FD-302, September 2, 1993, at 3-4.

1221. See [G.J.]

1222. [G.J.]

1223. [G.J.] See U.S. Department of Justice, Federal Grand Jury Practice, January 1993, at 54.

1224. [G.J.]

1225. [G.J.]

1226. United States v. Mechanik, 475 U.S. 66, 74 (1986) (O'Conner, J. concurring).

1227. United States v. Al Mudarris, 695 F.2d 1182, 1184-85 (9th Cir.), cert. denied, 461 U.S. 932 (1983).

1228. United States Attorney's Manual 9-11.020. The American Bar Association's Criminal Justice Standards similarly provide that a prosecutor "should not make statements or arguments in an effort to influence grand jury action in a manner which would be impermissible at trial before a petit jury." ABA Standards for Criminal Justice: The Prosecution Function, Standard 3-3.5(b) (3d ed. 1992).

1299. For example, during a recorded conversation, Weaver, the BATF informant, and Frank Kumnick spoke of someone in the Order shooting "a talk [show] host" and noted that there would soon be a change in leadership within the Order, that the Order was passing "funny money," and that a lot of people in the "movement" were "facing 100 year [jail] sentences." Transcript of conversation between Randy Weaver, Kenneth Weaver, Kenneth Fedeley and Frank Kumnick, January 20, 1987, at 11, 19-20, 30.

1230. See, e.g., United States v. Winslow, 962 F.2d 845, 850 (9th Cir. 1992); United States v. Cutler, 806 F.2d 933, 936 (9th Cir. 1986).

1231. In affirming the conviction of Robert Winslow, an Aryan Nations member Howen prosecuted before the Weaver case, the Ninth Circuit held that it was permissible to introduce background evidence of "controversial aspects of the Aryan Nations organization." United States v. Winslow, 962 F.2d at 847. However the trial court had not permitted Howen to offer "in depth explanations of objectionable terms that came up during testimony" and allowed only "a limited explanation of some of the practices of the organization." 962 F.2d at 850.

1232. See United States v. Venegas, 800 F.2d 868, 870 (9th Cir.), cert. denied, 479 U.S. 1100 (1986) (prosecutor's elicitation of testimony from former members of group to which the accused belonged that the group was radical and dangerous and that the former members testified at great risk to their lives was "inappropriate"); United States v. Serbo, 604 F.2d 807, 818 Nostra hatchet men. . . was a blatant invitation to associate the defendants with a disfavored criminal class" and constituted extreme prosecutorial misconduct); United States v. Riccobene, 451 F.2d 586, 587 (3rd Cir. 1971) (prosecutor's comment connecting defendant with organized crime was improper); See also United States v. Samango, 607 F.2d 877, 883 n.10 (9th Cir. 1979) (evidence of the "bad character" of the accused in generally inadmissible in grand jury proceedings).

1233. Id. See United States v. Venegas, 800 F.2d at 870; United States v. Serubo, 604 F.2d at 818; United States v. Riccobene, 451 F.2d at 587.

1234. See United States v. Sears Roebuck & Co., 719 F-2d 1386, 1391-92 (9th Cir. 1983), cert. denied, 465 U.S. 1079 (1984).

1235. [G.J.]

1236. U.S. Department of Justice, Federal Grand Jury Practice, January 1993, at 62 (citation omitted).

1237. See [G.J.]

1238. United States Attorney's Manual, 9-11.020.

1239. See United States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982)

1240. Costello v. United States, 350 U.S. 359, 363 (1956).

1241. See United States v. Wright, 667 F.2d at 796. Compare United States v. Linetsky, 533 F.2.d 192, 200-01 (5th Cir. 1976).

1242. See United States v. Al Mudarris, 695 f 2.d 1182, 1188, (9th Cir. 1983), cert. denied, 461 U.S. 932 (1983) (prosecutor's right to exercise discretion and selectively in presenting evidence to the grand jury does not permit him to mislead the grand jury in the performance of its duties).

1243. [G.J.]

1244. See 18 U.S.C. 241.

1245. [G.J.]

1246. Ellsworth Sworn Statement, Tape 6, at 21; Howen Sworn Statement, Tape 11, at 45-56.

1247. Response to Motion for Order Respecting Potential Sentence, January 25, 1993, at 2-4.

1248. The trial court ruled that the death penalty did not apply as a matter of law and did not address the factual underpinnings of the prosecution's position.

1249. Margolis believes that, by approving the U.S. Attorney's request, the Department of Justice was simply authorizing the U.S. Attorney to seek the death penalty. The jury would still have had to find Weaver and Harris guilty beyond a reasonable doubt before the penalty attached. Margolis FD-302, at 3.

1250. Maurice Ellsworth Sworn Statement, Tape 6, at 23; Ron Howen Statement, Tape 11, at 45-46.

1251. We note, however, that the defense did not suffer any harm as result of the prosecution's effort to seek the death penalty. To the contrary, Weaver and Harris were assigned additional counsel when it appeared that the matter might be tried as a capital case. The court continued those appointments, even after ruling that the death penalty could not be applied.

1252. See United State v. Birdman, 602 F.2d at 553 (prestige of prosecutor's office may enhance his credibility).

Released through


LEXIS COUNSEL CONNECT is a communications and information service for attorneys. LCC is managed by American Lawyer Media, L.P.

Table of Contents