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From the beginning of its preparation of the Weaver case for trial, it was always the intent of the U.S. Attorney's Office in Boise, Idaho ("USAO") to provide discovery to the defense in accordance with a modified open discovery policy. [FN1253] This discovery policy together with the scope and breadth of the indictment created concern among members of the FBI including those at FBI headquarters. [FN1254] Such concern contributed to a resistance by the FBI to produce certain materials that the USAO deemed pertinent to the case but which the FBI believed were either irrelevant to what it perceived to be the real issues in the case or too sensitive to be disclosed. In addition, some believed that the failure of the FBI laboratory to process materials and to conduct tests in a timely fashion further impaired the ability of the USAO to respond to the discovery demands of the Weaver case. [FN1255] A final discovery problem surfaced during trial when the FBI produced, in response to a defense subpoena, additional documents related to the FBI shooting incident report which the USAO maintained it had requested in discovery throughout the pretrial period. It has been alleged that these problems and the delays and embarrassment that resulted were unnecessary and adversely affected the Weaver case.
Immediately after Harris and Weaver surrendered to law enforcement authorities, the USAO began preparing the case for indictment and trial. Important components of this process included taking steps to insure that evidence was located and preserved and developing a discovery strategy. [FN1256] Due to the intense media interest in the Weaver case coupled with the defense allegations that law enforcement personnel had acted unlawfully and that government officials were participating in a coverup, members of the USAO decided to adopt a modified open discovery policy. [FN1257] Such a discovery policy was consistent with the USAO practice in handling other cases in their district.
On October 16, the USAO and defense counsel entered into an agreement captioned "Stipulation and Reciprocal Request for Discovery and Inspection, Notice of Alibi and Notice of Mental Condition" which set forth the discovery obligations of the parties. Pursuant to the terms of the stipulation, the parties were to provide the reciprocal disclosure of the materials stated in Rule 16(a)(1) and 16(b)(1) and the "reciprocal pre- trial disclosure and inspection of Jencks Act (18 U.S.C. 3500) materials, Rule 26.2, F.R. Crim. P materials and transcripts of testimony and exhibits presented to the Grand Jury." [FN1258] It was further agreed that "rough notes [were] generally not Jencks or Rule 26.2 materials unless they [were] a substantially verbatim recital of the trial or intended trial witness' oral statement or seen, signed or otherwise adopted by the witness' oral statement, or seen, signed, or otherwise adopted by the witness . . ." [FN1259] The stipulation added that "in the exchange of Jencks or Rule 26.2 materials including rough notes, the parties [were] authorized to redact information from those materials as permitted by case law, statute or rule, including but not limited to . . . information directly or indirectly relating to equipment, tactics and strategies of investigation, apprehension or arrest and case preparation. Such redaction [was to] be subject to in camera inspection by the Court upon written motion or objection of a party." [FN1260] With regard to the timing of discovery the stipulation stated that, "[i]t is the intention of the parties to accelerate the time table for discovery and inspection to a time significantly in advance of trial so that all pre-trial motions are fully and promptly made and ruled on, so that trial preparation is completed in advance of trial, so that unjustifiable delay and expense are eliminated which may result from literal application of the statutes and rules, and so that a fair, just and truthful determination of the charges pending against the defendants may be resolved consistent with the security concerns of the Court, the parties, defendants and prospective witnesses. . . . The parties further stipulate[d] and agree[d] to file a written response to [the] stipulation on or before October 23, 1992, and on a continuing basis thereafter pursuant to Rules 12.1(c), 12.2 (a) and (b) and 16 (c), F.R. Crim. P." [FN1261]
A week after signing of the stipulation, the government provided its initial discovery response. [FN1262] The government continued to provide material during the pretrial period and into the trial. Indeed, the government filed multiple addenda summarizing the huge volume of materials that had been produced to the defense, including video tapes, audio tapes, investigative reports, laboratory reports and thousands of pages of documents.
Much of the material that the government produced in discovery originated from the FBI and was produced on a timely basis. However, questions have been raised as to whether actions by the FBI impeded the discovery process. In particular, allegations have been made that the FBI failed to cooperate with allegations have been made that the FBI failed to cooperate with the USAO in meeting its discovery obligations and unjustifiably resisted producing certain documents. These actions are alleged to have impacted adversely on the prosecution of the Weaver case.
From his very first communications with Special Agent in Charge Eugena Glenn on September 3, 1992, [FN1263] U.S. Attorney Ellsworth made it clear that it was important for the FBI to preserve and produce a broad range of documents that would be pertinent to discovery and trial. Ellsworth and Assistant U.S. Attorney Ronald Howen, who was primarily responsible for the discovery matters in the Weaver prosecution, strongly believed that a complete production of relevant materials [FN1264] was critical to defend against the charge of a government coverup. Throughout the pretrial period members of the USAO repeatedly requested the FBI to produce all pertinent materials and requested an opportunity to review all the relevant files at FBI headquarters.
According to Supervisory Special Agent T. Michael Dillon, most of the conversations with the USAO concerning discovery occurred between the FBI case agents -- Special Agents Joseph Venkus and Gregory Rampton -- and Assistant U.S. Attorneys Howen and Kim Lindquist. Rampton and Venkus passed these discovery requests to Dillon, who relayed them to FBI Headquarters. Dillon told investigators that from the beginning of the Weaver case he was required to make frequent phone calls to FBI Headquarters in an attempt to assist in the release of discovery materials. He stated that most of his contacts were with Gale Evans of the Violent Crimes Unit of the Criminal Investigative Division ("CID") although he did recall at least one phone conversation with Section Chief Michael Kahoe. [FN1266]
It is normal FBI practice for the Principal Legal Advisor at the Field Division level to handle discovery requests since they usually have access to the requested materials. [FN1267] In this case, however, the Boise Resident Agency produced those materials over which they had access and then coordinated with FBI headquarters regarding the other materials that were housed or controlled there. [FN1268]
The first discovery conflict surfaced on September 23, 1992, when Lindquist travelled with Rampton to Quantico, Virginia to meet with Assistant Special Agent in Charge Richard Rogers to discuss the actions of the Hostage Rescue Team ("HRT"). While at Quantico they met with special agent Lester Hazen who showed them a copy of the operations plan drafted for the HRT during the Ruby Ridge crisis. When Lindquist requested a copy of the operations plan Rogers responded that the operations plan had never been approved and he did not want to produce the document to Lindquist because it contained sensitive information. Finding this position unacceptable, Lindquist is reported to have told Rogers that he would obtain a court order that would permit him to have access to the operations plan. Because it appeared that neither Rogers nor Lindquist were willing to compromise, Rampton suggested that Lindquist be able to review the report but not be given a copy of it. If the court requested the information later, Rampton proposed that the parties could negotiate further about the release of the information. Rampton reported that Lindquist and Rogers acceded to this compromise. [FN1271]
Rogers also informed Lindquist and Rampton that all of the HRT members had prepared signed sworn statements as part of an internal shooting review conducted by the Inspection Division of the FBI. When Rampton requested these statements, Rogers told him that he did not have the authority to release them and instructed Rampton to contact the Inspection Division. Later Rampton spoke with Paul Philip, the Deputy Assistant Director of the Inspection Division about obtaining these statements. [FN1272] Rampton recalled that Philip contacted Dave Binney who told him that the signed statements could be given to Lindquist. Thereafter, Rampton informed Rogers of the authorization, obtained the sworn statements from the HRT members, attached a cover 302 and produced them to Lindquist. [FN1273] Lindquist recalls that he reviewed these statements on this trip but that he never was given access to the entire shooting incident report. [FN1274]
Unable to resolve its disagreement with the FBI regarding these documents, both the USAO and the FBI sought the assistance of the Terrorism and Violent Crime Section ("TVCS") of the Criminal Division of the Department of Justice in Washington, D.C. The initial disagreement between the USAO and the FBI focused on a relatively small number of documents. The most significant documents in this group were the September 30, 1992 shooting incident report; the November 9, 1992 shooting incident Review Group memorandum; the FBI operations plan and annex; and, later, the FBI critique of the U.S. Marshals Service.
(1) Documents at Issue
The first document at issue was the shooting incident report dated September 30, 1992. That document was a report prepared by a shooting incident review team of the Inspection Division of the FBI and represented the findings of an administrative inquiry into the August 22, 1992 shootings by the HRT at Ruby Ridge which resulted in the death of Vicki Weaver and the injuries to Kevin Harris and Randy Weaver. [FN1283] It consisted of: a 5-page cover memo with findings from Inspector Thomas W. Miller dated September 30, 1992; the statements of the HRT members some of which were signed sworn statements and others which were in the form of a FD-302; [FN1284] autopsy reports of the three individuals killed at Ruby Ridge; a statement of the prospective status of the subjects; crime scene photographs and diagrams; and news clippings. The notes of the investigators who conducted the interviews of the HRT members were not included as part of the report.
The shooting incident report had been forwarded to the Shooting Incident Review Group ("Review Group") which reviewed it to determine if any administrative action was warranted against any FBI employee involved in the shootings. After analyzing the report, the Review Group prepared a four-page memorandum articulating its views as to whether administrative action was appropriate. In this memorandum dated November 9, 1992, the Review Group concluded that the actions taken were lawful and within FBI rules and procedures and thus no administrative action was necessary. This memorandum was attached to the September 30, 1992 report and forwarded to Steven Pomerantz, the Assistant Director of the Administrative Services Division.
Although the FBI had produced in discovery most of the FD-302 statements of those interviewed in the internal investigation, it was unwilling to produce the entire shooting incident report because it was an internal document that had never previously been produced in discovery.
Another document at issue was the operational plan and annex which set forth the initial strategy contemplated for the operational plan to be used at Ruby Ridge. [FN1287] Components of this plan included controlling the crisis site through the deployment of sniper/observers followed by establishing communications with Weaver and others in the cabin.
The third document that the FBI did not want to produce in discovery has been referred to as the "marshals critique." [FN1290] This is a two page document containing 12 critical observations of the actions of the Marshals Service at Ruby Ridge. These observations are supposed to be based on interviews of members of the Marshals Service and the HRT. Special Agent Venkus and Assistant U.S. Attorney Lindquist first learned of this document on December 1, 1992 when they traveled to Washington, D.C. to review the FBI headquarters file and to talk with HRT members. Venkus made a copy of the critique and took it back to the FBI office in Boise where Venkus gave Lindquist access to it under the condition that it be returned. [FN1291]
Because of the critical nature of the critique, the Bureau resisted its disclosure.
inappropriate because it [GARRITY] [FN1292] Dillon reportedly told Deputy Marshal Masaitis that he would rather see a mistrial than produce the marshals critique in discovery. [FN1293] When Lindquist tried to explain to Dillon the serious repercussions that would occur if the government failed to produce the critique in discovery but later produced it in response to a Freedom of Information Act request, Dillon responded that the document had come from someone's desk and was not in any official file that would be searched for a FOIA. request. From Dillon's comments, Lindquist was concerned that someone from the Bureau might be contemplating destroying the document so that it would not have to be produced. Lindquist advised strenuously against such action. [FN1294]
(2) Negotiations Among the Parties
Due to the complaints received from the USAO and the FBI, attorneys from the Terrorism and Violent Crime Section of the Department of Justice contacted FBI officials in an attempt to solve the impasse. [FN1295]
With the arrival of 1993, the USAO and FBI could still not agree on what documents needed to be produced in discovery. On January 4, Howen and Lindquist met with the FBI case agents and repeated their request for all pertinent documents at FBI Headquarters, including the shooting incident report. [FN1297] On January 6, Howen sent a letter to Glenn in which he formally repeated his earlier requests for all pertinent materials from FBI headquarters and elsewhere, including files, reports, documents, that they had not previously received. Howen then wrote, "[i]n other words, we want access to everything." Howen also requested a copy of "[t]he administrative file concerning the review of the HRT sniper shooting on August 22, 1992 . . . but not limited to, the shooting reports, the names and phone numbers of the agents who participated in the preparation of the report, any diagrams or charts of angles, including a preliminary diagram that showed the sniper shot directly into the house, and any other document or papers" and "[a]ny other documents or reports of any evaluations or critiques of the actions of . . . the HRT team on August 22-31, 1992." [FN1298] Copies of this letter were sent to James Reynolds and Michael Dillon.
Later that same day, U.S. Attorney Ellsworth called James Reynolds, Chief of the Terrorism and Violent Crime Section of the Criminal Division of DOJ, and complained that the local FBI was refusing to produce documents needed in the Weaver case. Although a number of documents were involved involved, Ellsworth identified the most critical ones as being the shooting incident report and the HRT operations plan. Following his conversation with Ellsworth, Reynolds arranged a meeting for the next day at the Department of Justice with FBI officials to discuss the discovery dispute. [FN1299]
The first meeting was held on January 7. Attending the meeting on behalf of the Department were Deputy Assistant Attorney General Mark Richard who chaired the meeting, Reynolds, and Deputy Section Chiefs Dana Biehl and Mary Incontro; attending the meeting on behalf of the FBI were Danny Coulson and Mike Kahoe, the Chairman of the Shooting Incident Review Group. At the meeting the participants focused on the scope of the indictment and the specific documents that the FBI did not want to produce. The FBI maintained that the indictment was too broad and should have been limited to the death of Deputy Marshal Degan on August 21. The FBI argued that a more narrowly drafted indictment would have eliminated the need to produce the documents at issue. [FN1300] Richard, who opined that it was much too late to shift the government's theory of the case, agreed with Reynolds that a more narrow indictment would not have shielded the documents from production. [FN1301]
With regard to the documents at issue, Coulson articulated his concern that the operations plan had never been approved and that if the operations plan were to be released it would disclose HRT operational secrets. As a compromise, Coulson offered to allow the prosecutors to view the operations plan after the sensitive information had been redacted. Reynolds believed that this compromise was reasonable and stated that when the USAO was informed of the proposal they agreed with it. [FN1302] At the end of the meeting, the FBI agreed to allow the USAO to view but not possess or produce the following documents: the November 9, 1992 Review Group memorandum; the August 23, 1992 operations plan and annex; the September 15, 1992 internal FBI headquarters note; an undated internal FBI headquarters note regarding the Weaver and Harris matter [FN1304]; 19 situation reports from August 23-31 1992; and the shooting incident report dated September 30, 1992. [FN1305]
Later that day, Kahoe instructed Gale Evans, Unit Chief of the Violent Crimes Unit of the Criminal Investigative Division, to send the shooting incident report to Mike Dillon by overnight delivery. Evans, who obtained a copy of the report from the files of Kahoe who had been the Chairman of the Shooting Incident Review Group, did not recall seeing interview notes with the report. Thereafter, Evans prepared a memorandum to accompany the report which incorporated instructions from Potts that the report was to remain within FBI space and was to be reviewed by prosecutors only within this space. [FN1306]
On January 12, Evans forwarded the documents to Dillon that the FBI had agreed to produce in the January 7th meeting [FN1307] and stated in the accompying memorandum:
As with the Shooting Report furnished to Salt Lake Division over the weekend of 1/8/93, the above documents are to be maintained in the Boise Resident Agency and afforded appropriate security. Per Assistant Director Potts, these documents are not to be released to the prosecution and are only to be reviewed under FBI supervision.
[FN1309] Venkus stated that when they received these instructions, he, Rampton and Dillon were upset that they could not turn the report over to the USAO. [FN1310]
Lindquist reviewed these documents in the FBI office in Boise on January 20. [FN1311] Following this review, Lindquist informed Howen that the report was not harmful to their case and that he believed it was discoverable. [FN1312] Shortly thereafter, Ellsworth wrote a letter to Dillon requesting that he provide the following documents to review, to produce in discovery and to use at trial: administrative shooting report, headquarters memo of shooting report, operations plan and annex, internal headquarters note with entries regarding the case and headquarters situation reports such as SIOC log synopses. [FN1313] Ellsworth opined that the documents were either responsive to the government's obligations under Jencks and Brady or were otherwise discoverable. He then wrote:
Your agency requested that our office not have possession of these documents or review them in discovery without first giving you written notice and an opportunity to intervene or persuade the Department of Justice to intervene in our decision regarding discovery and inspection. We remain sensitive to your concerns and wish to work with the F.B.I. in this regard, but, as we addressed in our letter of January 6, 1993, our office needs access to all files and documents at F.B.I. Headquarters that related to this case, not only for use at trial, but, also, to complete pretrial interviews of all potential witnesses. We reiterate the need to review all such materials as they might be further identified. [FN1314]
Ellsworth closed the letter by requesting "immediate and permanent possession of these materials and a review of any additional possession of these materials and a review of any additional that might still be identified." [FN1315] In early February 1993, Lindquist again requested the FBI to produce all documentation at FBI Headquarters that was pertinent to the Weaver case including the SIOC logs which Rampton subsequently determined had already been produced. [FN1316]
It was not until the middle of March 1993 that Department of Justice officials learned that the FBI had still not produced these documents to the USAO. Thereafter, Reynolds retrieved a copy of the January 12, FBI memo transmitting the documents at issue to the Boise Resident Agency. Using that document as a reference Reynolds contacted the USAO and reviewed whether the documents listed in that memorandum, including the FBI critique of the marshals which Reynolds added to the list, were needed at trial or for discovery. [FN1317] After his discussion with the USAO, Reynolds requested Dana Biehl to examine the documents that the USAO wanted to produce in discovery and to provide his views as to whether they were discoverable. [FN1318] On March 17, Biehl sent a memorandum to Reynolds in which he opined that the three documents at issue were either Brady or Jencks material. [FN1319]
After reviewing the Biehl memorandum, James Reynolds, on March 18, sent a memorandum to Mark Richard informing him of the continuing discovery dispute between the FBI and the USAO. In addition to the documents discussed at the January 7th meeting, Reynolds told Richard that an additional document -- a marshal's critique which the prosecution knew existed but had never seen- - had been added to the list of documents that the FBI did not want to produce. Reynolds informed Richard that all of the documents at issue, with the exception of some internal FBI headquarters notes, appeared to be discoverable or to constitute Jencks or Brady material. He recommended that they work with the FBI and the prosecutors to resolve the issues and to develop a strategy to protect sensitive information within some of the documents. In addition, Reynolds noted, "we need to ensure that there is no additional material at Headquarters that is discoverable. While personnel of this Section are prepared to staff this effort, we have not been successful in initiating it, as the Bureau's intransigence appears to emanate from Larry Potts' level or above." [FN1320]
Five days later, a second meeting was held at the Department of Justice to discuss the discovery dispute. This March 23rd meeting was attended by Richard, Reynolds, Incontro, and Biehl from the Department of Justice and Potts, Coulson, Kahoe from the FBI. According to Reynolds, the FBI continued to complain about the scope of the indictment and its impact on their discovery obligations. [FN1321] Incontro and Biehl recalled that they supported the USAO position that most of these documents, including the shooting incident report, should be produced in discovery. [FN1322] Reynolds recalled that Coulson finally consented to the production of the documents if sensitive portions of the operations plan were redacted. Those individuals at the meeting thought that the proposal to redact the operations plan was reasonable. [FN1323]
On March 26, the USAO filed its Eighth Addendum to its Response to the Discovery Stipulation. In that document, the government identified additional items that were being produced in discovery including the November 9, 1992 Review Group Memo, the situation reports, the shooting incident report, the operations plan and annex and the marshals critique. [FN1324] Although identified in this filing, these documents were not produced to the defense until later. [FN1325] The shooting ] incident report was delivered by hand on April 7, 1993; [FN1326] the situation reports and the operations plan were delivered on April 10, 1993; and the Review Group memo and the marshals critique were delivered on April 12, 1993. [FN1327] The Weaver trial began the next day on April 13, 1993.
On April 13, 1993 the defense filed an ex parte application for subpoenas duces tecum. Among the subpoenas sought was one ordering Inspector Thomas W. Miller, who had headed the review team examining the FBI shooting at Ruby Ridge, to bring "any and all records used by the 'Shooting Incident Review Team.'" [FN1328] Other subpoenas requested the FBI to produce copies of certain manual provisions and certain personnel files. [FN1329] Judge Lodge approved the issuance of these subpoenas on April 14. It appears that defense counsel delivered the subpoena for Miller to the Boise office of the FBI. Dillon sent the subpoena to Miller and forwarded a copy to FBI Headquarters. Dillon recalled discussing this subpoena with Kahoe and telling him that the defense would want the notes developed during the shooting investigation. Thereafter, Dillon learned that the notes were in the Legal Counsel Division and he told Kahoe that they would have to be mailed to Miller for him to testify. [FN1330]
The evidence is conflicting as to whether the FBI notified the USAO of this subpoena. Rampton believed that during the trial Lindquist asked Venus to obtain a copy of the subpoenaed materials but that Venkus did not think that the information was needed until Miller was scheduled to testify. [FN1331] A July 29, 1993 chronology of events prepared by Rampton and Venkus after the trial and an April 28, 1993 handwritten note by Venkus indicate that Lindquist was advised that once Venkus received the "1-A" material sought by the subpoena he would produce it to Lindquist who would give the material to the defense. [FN1332] Lindquist who would give the material to the defense. Lindquist had a vague recollection of perhaps hearing that a subpoena had been served on Miller but he could recall no further details. [FN1333] Howen had no recollection of discussing with Lindquist in late April 1993 any efforts that the FBI was taking to check the "1-A" files for the interview notes. [FN1334] Although Howen was aware of subpoenas issued at the same time for FBI manuals and personnel files, he did not recall learning about this subpoena until early June. [FN1335] However, he added that if he had known about the subpoena he would not have been concerned because he would have assumed that the FBI would have produced the same documents as they had produced in discovery. [FN1336]
On April 14 or 15, Supervisory Special Agent Brian Callihan from the Civil Litigation Unit I ("CLU I") of the LCD received a phone call or a facsimile from the FBI office in Boise informing him of two subpoenas that had been sent by Weaver's counsel. According to Callihan, someone had decided that the subpoena requesting the manual would be handled by the local office of the FBI as a routine request for the FBI manual while the subpoena directed to Miller would be handled by the LCD even though it had not been properly served.
Attached to the subpoenas was a letter dated April 12, 1993 from defense counsel Charles Peterson to "potential witness" advising the witness as follows"
Although the subpoena requires your attendance on April 17, 1993, I expect that you will not be called to testify until the completion of the Government's case, some six weeks into the trial. Please call my office as soon as possible so that you may be advised of a specific date and time to appear -- otherwise the subpoena requires you to attend continuously from the beginning of the trial until your testimony is given. If I am unavailable, please ask for Diane or Yvonne. [FN1337]
Calihan stated that the letter left him with the belief that defense counsel would advise Miller when to appear. [FN1338] Because Callihan believed that Miller would probably not testify for at least another two months, he saw no reason to expedite the production of the subpoenaed documents. Callihan insisted that no one ever informed him that there was a need to expedite the handling of the subpoena or that the records were needed prior to the testimony of Miller. In addition, he believed that proper service of the subpoena had never been made on Miller. [FN1339] Accordingly, he processed the subpoena consistent with routine procedures by sending it to the Civil Discovery Unit ("CDRU") of the LCD.
On April 30, two weeks after first learning of the subpoena, Callihan prepared a request to the CDRU and described the litigation as follows:
Criminal trial is ongoing. The U.S. Attorney's office has previously released a number of documents to the defense. The attached subpoena requests additional documents for release to the defense. [FN1340]
He then described the work that needed to be done:
Locate and process for release to the defense attorney documents responsive to the attached subpoena. The shooting report has previously been released. The records used by the Shooting Incident Review Team would include 1-A's in the Shooting Review file and any other documents referred to and relied upon in the Shooting Report. [FN1341]
Callihan also requested that the search be coordinated with CLU I and with Division 6. [FN1342]
The Callihan request was directed to Monique Wilson. When Wilson first reviewed the subpoena she did not think that it included a request for the handwritten notes so she discussed the issue with Callihan on April 30. Callihan instructed her that the notes should be included. Later that day she requested the file from the confidential file room and received it shortly thereafter. However, when she examined the materials that had been produced she noticed that the handwritten notes were missing. She then returned to the confidential file room where they found the handwritten notes in the bulky exhibit section. Wilson stated that there was initial confusion in locating these notes because an incorrect date had been placed on the outside of the bulky package. Thereafter, Wilson processed the documents, made 5 copies as requested by Callihan and forwarded these materials to Callihan on May 11. [FN1343]
When Callihan received the package from CDRU he reviewed it, approved it for dissemination and sent it on May 21, 1993 to the FBI mail room with a cover letter instructing them to send it to Miller and to send courtesy copies to the USAO. [FN1344] Callihan did not include instructions as to how the package was to be mailed; he concluded later that considering the size of the package and the absence of specific mailing instructions that it would have been sent by fourth class mail. [FN1345]
Two weeks later, on June 4, the package arrived at the USAO. Roberta Cruser, the docket technician for the USAO, opened the package, dated stamped the Callihan cover letter and routed the materials at about 10:00 a.m. that morning to Howen. [FNB1346] At the luncheon recess Howen returned to his office. The court had just excused HRT member Lon Horiuchi after defense questioning hag been completed. When Howen arrived in his office he discovered the package on his desk with the May 21 cover letter from Callihan which indicated that Callihan was enclosing two copies of documents responsive to the defense subpoena seeking "any and all records used by the Shooting Incident Review Team." In addition, the letter stated:
These documents consist of the original statements, and the FBI Manual of Investigative Operations and Guidelines provisions noted in the report as being read by all members of the Shooting Incident Review Unit and we believe that they are ready for release to the defendants' attorneys. [FN1347]
Howen recognized that many of the documents in the package had been provided previously to them and to the defense in discovery. However, other documents in the package had never been produced. These never produced documents were: the agents' interview notes from the "1-A" files of all FBI personnel interviewed in the investigation except for Eugene Glen; and two drawings by HRT sniper Horiuchi including a shooting diagram of the second shot taken through the Weaver front door on August 22, 1992. When Howen examined the materials in the package and saw the Horiuchi diagram he knew that the late production of these materials would be difficult for the prosecution to explain and would result in significant criticism by the media. The impact was even greater because it followed closely behind several other damaging and embarrassing disclosures made during the trial. [FN1348] Howen stated that he does not think that he had ever "been as low professionally." [FN1349]
Thereafter, Howen returned to the courtroom and informed the parties of the package that he had just received. Defense counsel referred to it as the latest in a series of incidents that had prejudiced the rights of the defendant and moved for the case to be dismissed because of alleged prosecutorial misconduct and for sanctions to be imposed on the government. Howen, after noting that many of the materials in the package had been previously produced, [FN1350] informed the court that his office was in the process of trying to determine the reasons for the late production of these materials. Howen stressed that his office produced the materials as soon as they were received and suggested that the responsibility for the late production of these materials rested elsewhere. The court deferred a definitive ruling until after the weekend and then stated,
[T]he Court is very upset about these things happening. It does appear that it is somewhat of a pattern on the part of people, agencies outside of the District of Idaho. The Court does not agree that there is any evidence that the U.S. Attorney's Office at least locally, is doing anything to hinder the prosecution of this case or prejudice the defense. The comments of Mr. Howen just now indicate his veracity and his sincerity in trying to comply with the rules . . . . It seems to be totally inexcusable and extremely poor judgment on the part of whoever is involved to send something like this fourth class mail when a trial of this nature is going to, the cost of time and human tragedy that is involved. [FN1351]
Following the court session, the USAO and others sought an explanation for the late arrival of the package of materials sent by Callihan. Callihan recalls that on June 4, a woman from the USAO called and asked in a "rude and obnoxious" manner why the documents had been sent by fourth class mail and why it had taken so long to send them. Callihan stated that he inquired why there was such a concern to which the woman said that Howen was upset about the delay. Callihan then told her that the request had been handled like similar requests and that Howen could call him to discuss the matter if he wanted. [FN1352]
Sometime between 5:30 and 6:00 p.m. on June 4, Dillon telephoned Joseph R. Davis, Assistant Director of the Legal Counsel Division and informed him that the FBI headquarters was responsible for the late production of the documents in the Weaver case and that the judge in the case was very upset. [FN1353] Dillon also mentioned that he had received an earlier discovery request for these documents but had not received the documents until that day. He told Davis that the U.S. Attorney had requested the FBI to provide an explanation for the delay to give to the judge. Davis left messages on the answering machines of Brian Callihan and Thomas Clawson to call him. [FN1354]
Later that same day, Callihan returned Davis' call. Davis informed him that the U.S. Attorney and Dillon were upset about the lateness of the transmittal and were unsure of what documents were in controversy. Callihan explained how he processed the request and repeated his understanding that there was no urgency to the request since Miller had not been expected to testify for several months. [FN1355]
Thereafter, Davis called Ellsworth to attempt to resolve the conflict between the accounts given by Dillon and Callihan. During a conference call in which Davis, Callihan, Ellsworth, Dillon and perhaps others participated, Callihan repeated his version of events. Howen remarked that these documents were responsive to a number of discovery requests and should have been produced earlier. Ellsworth agreed and, along with Howen, requested LCD and Dillon to prepare sworn declarations to the court explaining the production delay. These declarations were prepared and sent to the USAO. [FN1356]
Sometime around June 5, the government received an affidavit prepared by Brian Callihan in which he detailed how he learned of the subpoena, the actions he took in responding to it and the beliefs he had concerning the time requirements for production of the materials. Callihan then stated, "[a]lthough I may have been aware of a request from the U.S. Attorney's Office for the Shooting Incident Review Group Report, I was unaware that the U.S. Attorney's Office had previously requested any or all other records, documents, and notes in connection with this investigation." [FN1357] Dillon also prepared a draft affidavit in which he accepted responsibility for not adequately relaying the USAO request to FBI headquarters. Howen decided not to file any of the affidavits filed by individuals involved in the incident. [FN1358]
On June 8, the parties made additional arguments to the court concerning how they should proceed after the disclosure of the subpoenaed materials. Of particular focus of the parties was the Horiuchi drawing and its significance. The court reserved its ruling until the next day but before doing so stated that:
The Court does not excuse the FBI Agency, The Court thinks there has been a failure to comply with what was fully understand [sic] to be required. They get involved in these technicalities as to who was served, but it is obvious they had notice of it, they were aware of what was required, and again, it is not anytime to be playing games with the Court on technicalities. [FN1359]
Judge Lodge issues his ruling on June 9 and ordered Horiuchito return for further examination in court due to the failure of the government to produce the materials in a timely manner. In addition, he assessed against the government the costs and defense attorney fees for the one-day delay. [FN1360] Almost five months later, on October 26, Judge Lodge issues an order imposing a separate fine of $1920 against the FBI. This fine represented the fees paid to defense counsel on the day that Horiuchi was brought back to testify. In this order, which is discussed more fully in section IV(o), Judge Lodge was highly critical of the actions of the FBI which he believed hampered the ability of the government to comply with its obligations to produce discoverable documents including Jencks and Brady materials. As a result of these actions, Judge Lodge found that the FBI had failed to comply with its discovery obligations under Fed. R. Crim. P. 16 and held them to be in contempt of court in violation of 18 U.S.C. Sec. 401. [FN1361]
Our investigation has revealed that the prosecution of the Weaver matter was plagued and complicated by a continuing series of disagreements, misunderstandings and preconceptions that existed between the FBI and the USAO. One of the areas where such problems surfaced involved the efforts of the USAO t respond to its discovery obligations in the case. Over the course of the pretrial period, the FBI produced a large volume of material on a timely basis. Indeed, the FBI Resident Agency in Boise appeared to have been cooperative with the USAO and to have made good faith efforts to comply with the requests of the USAO.
Although the overall effort of the FBI to respond to the discovery requests of the USAO appeared to have been good, we have found two areas where problems existed. The first involves the problems associated with the actions of the FBI Laboratory, which are discussed elsewhere in this report. The second area concerned the resistance of personnel at FBI headquarters to produce a group of documents that was small in number but significant in importance to the issues in the case. [FN1362]
With regard to the production of this group of documents, it is our conclusion that FBI personnel, predominantly at the headquarters level, [FN1363] imposed unreasonable resistance and applied inappropriate standards to the discovery requests from the USAO, exhibited an unjustified unwillingness to cooperate as a teen member in the prosecution, and evidenced a troubling distrust of the USAO. Indeed, we were distressed by the persistent intransigence shown by FBI headquarters personnel.
From the outset, officials at FBI headquarters opposed the prosecutors' theory of the case. They steadfastly adhered to their view that the indictment should be limited to the assault of a federal officer charge and that the conspiracy count was not supported by the evidence. The prosecutors were aware of this view but disagreed with it. Although a free exchange of ideas and information should always occur between the FBI and the USAO, the FBI in this case failed to appreciate that it is the prosecutor not the FBI that controls the direction of the prosecution. The FBI failed to identify the point where healthy debate became destructive resistance.
The FBI used their disagreement over the scope of the indictment to support their refusal to produce certain materials in discovery. In the final analysis, with one exception, there seems to have been little basis for their refusal to produce these materials. Although the shooting incident report was an internal document, it was certainly pertinent to the issues in the prosecution. Even members of the FBI conceded its relevance. [FN1364] Standing alone, the fact that such a report had never been produced in discovery was not a basis to resist its production. Furthermore, as a practical matter, most of its contents, including the statements of the HRT members, had already been produced in discovery. Nor do we think that the resistance of the FBI to producing the November 9, 1992 Review Group memorandum was justified. Again, a document that was shielded from criminal discovery simply because it is evaluative in nature. Similarly, with respect to the marshals critique, there seemed no sound basis upon which the FBI could object to its production. The marshals critique may have been embarrassing to the FBI and the Marshals Service and it may not have been the result of thorough research and analysis but those factors are totally irrelevant to its discoverability. Of all the contested documents, the only one for which the FBI would seem to have had a valid concern was the operations plan and annex. However, as was ultimately done, the sensitive portions were redacted from the document before being produced to the defense. The prosecutors did not object to the redactions and, indeed, from the beginning of the controversy had been willing to consider the redaction of the document. [FN1365] Despite this willingness to compromise, the FBI maintained a course of stubborn resistance.
In addition to the unjustified refusal to produce these materials we are concerned by the bureaucratic resistance of the FBI. Although objections were raised to producing these documents in discovery, no one ever assumed control at the headquarters level in an attempt to resolve the dispute expeditiously. Instead the controversy lingered for months before all of the documents were eventually produced in discovery. During this process, the FBI seemed to lose sight of its role as the investigative arm of the Department of Justice which is supposed to assist, not impede, federal prosecutors in pursuing violators of federal criminal laws. It was not until the Criminal Division of the Department of Justice intervened that the discovery dispute was received. [FN1366]
Our investigation revealed that the discovery problems were symptomatic of a disturbing distrust by the FBI of the local federal prosecutors. Nothing in our investigation provided any explanation or justification for this lack of trust. We hope that the uncooperative attitude displayed by the FBI in the Weaver matter was an aberration. James Reynolds characterized the discovery dispute in the Weaver case as "unique." He told investigators that it was unusual for the Department to become involved in pretrial discovery disputes in cases litigated by the U.S. Attorneys. The refusal and reluctance of the FBI to permit the prosecutors to view the documents was, in Reynolds' view, inconsistent with his prior experience with other agencies in releasing material that was classified or of even greater sensitivity than the documents at issue in the Weaver case. Reynolds stated that it was apparent to him that the Violent Crimes Section of the FBI did not have a good idea of what was legally discoverable in a criminal case. [FN1367]
FBI officials blamed some of the discovery difficulties to the attitudes of members of the USAO.
[FN1368] Our investigation found no support for these claims. From the beginning of the preparation of the case for trial, the USAO made it clear as to the scope of discovery and the types of materials that needed to be produced. Despite its repeated requests to review the headquarters files related to this case, the prosecutors were never afforded this opportunity. [FN1369] Indeed, to this day, the prosecutors are not confident that all pertinent materials located from FBI Headquarters were shown to them. [FN1370] The prosecutors recognized the discoverability of the contested documents and believed that they were obligated to produce them. The determination to obtain and produce discoverable materials cannot be classified as intransigent behavior.
Although we believe that the USAO was clear in articulating the materials that needed to be produced in discovery, we are somewhat perplexed as to their failure to keep the Department of Justice officials who were assisting them in resolving the dispute better informed of the progress of the FBI in producing the documents at issue. After the January 7 meeting, over two months passed before the USAO contacted the Department of Justice to inform them that the FBI still needed to produce these documents so that the USAO had gained possession of these documents. The USAO never informed the Department of Justice officials of this additional delay and thus, never gained the further benefit of any assistance that they could have provided. Perhaps if the USAO had been more aggressive in keeping the Department informed of the progress of the production of the documents the controversy could have been resolved sooner.
It is unclear what exact impact the dispute over these documents had on the government's case. Neither Howen nor Lindquist viewed this controversy as determinative of the outcome of the case. [FN1371] However, Lindquist thought that the repeated controversies over discovery issues had a cumulative effect on the judge that resulted in the judge imposing sanctions on the government after the untimely delivery of the subpoenaed version of the shooting incident report. [FN1372] In addition, the dispute needlessly diverted the valuable time, energy and attention of the prosecutors from critical trial preparation tasks. Ellsworth stated that they felt that they were "battling on two front" -- the defense counsel and the FBI. [FN1373] The prosecutors did not need the added aggravation of engaging in this debate at a time when they were required to prepare the case and witnesses for trial and to respond to continuous defense motions. The discovery debate also worsened the already tense relationship between the USAO and the FBI Resident Agency in Boise. [FN1374] Indeed, Dillon thought that the reluctance of the FBI Headquarters to release the documents contributed further to the tension between his office and the USAO.1375 The USAO had the right to expect the cooperation of the FBI throughout all phases of the discovery process. However, instead of a partner in this process, FBI Headquarters assumed the role of an adversary.
Our investigation confirms that the USAO from September 1992 and throughout the pretrial period repeatedly requested the FBI to provide all materials pertinent to the events that occurred at Ruby Ridge. [FN1376] As the case preparation proceeded, the USAO renewed their requests for this material on a number of occasions. Moreover, as they learned that particular documents existed they included these documents in their requests. One such document was the shooting incident report dated September 30, 1992 and the memorandum of the Shooting Incident Review Group dated November 9, 1992. When the USAO finally received these documents on the eve of trial they believed that the materials produced to them constituted all of the documents related to the shooting report. However, unknown to them at the time, the production was incomplete.
Shortly after the trial began and apparently without the knowledge of the USAO, the FBI received a defense subpoena for the shooting incident report and supporting materials. Five weeks later, the Legal Counsel Division of the FBI completed its response to the subpoena and sent the large package, without mailing instructions, to its mail room for shipment. Two weeks later, the package arrived at the USAO in Boise. Howen discovered upon opening the package that it contained, in addition to the shooting incident report that the government had already produced to the defense, the interview notes of the HRT members and two drawings by FBI sniper Lon Horiuchi. None of these latter materials had ever been shown or given to the USAO.
The late production of these materials was significant and had a detrimental impact on the prosecution of the Weaver case. Indeed, this event provided additional support for the defense argument that the government was covering up the events that had occurred at Ruby Ridge. Moreover, the U.S. Attorney opined that when Horiuchi was called back for further cross examination, it afforded the defense another opportunity to remind the jury of the death of Vicki Weaver and how she had been killed. [FN1377]
The untimely production of these materials raises a number of concerns. First and foremost is why these materials were not produced during the pretrial discovery phase of the case. there can be no doubt that the USAO requested these materials in a timely fashion and that they were entitled to have the FBI produce them promptly. Throughout the pretrial period the USAO, most notably Howen, repeatedly requested the FBI to produce all materials related to the FBI's participation at the crisis at Ruby Ridge. It appears that Dillon transmitted many of the USAO discovery requests to FBI Headquarters. Moreover, in addition to any communications received from the Boise Resident Agency, FBI Headquarters personnel were notified of these requests from direct communications with the USAO as well as by their discussions with members of the Terrorism and Violent Crime Section of the Department of Justice. Indeed, FBI headquarters officials were disgruntled because of the persistent attempts of the USAO to obtain 'everything." However, if there was ever any question as to the scope of materials that the USAO wanted with respect to the shooting incident report it surely was resolved by the January 6, 1993 letter from Howen to Glenn. The specificity of that letter in our opinion left no doubt that investigative notes and certainly drawings by an HRT sniper were encompassed within the request.
Based on our investigation, we conclude that headquarters personnel were informed of the scope of discovery sought by the USAO yet failed to take adequate efforts to locate responsive materials. Dillon seeks to accept fully responsibility for this production problem because he may not have made adequate request for the investigative notes of the internal shooting inquiry. [FN1378] Howen opined to investigators that he thought it was unfair for Dillon to take the blame for what he believed to be omissions of FBI Headquarter's personnel. [FN1379] We agree. Perhaps someone should have been more aggressive in formulating instructions to FBI headquarters and monitoring the quality of their response. Nevertheless, the primary responsibility in this case must rest on the doorstep of FBI headquarters. They understood the requests and they were responsible for generating and storing the records being sought.
We have yet to obtain clear evidence of what actual efforts were taken by the FBI to search their files for documents responsive to the discovery request as outlined by the USAO. However, our impression is that it was not a well organized search. Indeed, during our investigation, we found at least one document that fell within the scope of discovery but which the FBI had not located and produced. [FN1380] With regard to the shooting incident report, FBI officials argued that as a practical matter the original investigative notes are not considered to be part of the shooting report and that the discovery request was not broad enough to encompass these notes. [FN1381] We find this explanation unavialing since discovery request was certainly broad enough to encompass such notes. [FN1382] These officials indicated that they consider the shooting report to consist of the report without the backup notes. [FN1383] Also troubling is the apparent failure of CID to consult with the Inspections Division -- which was responsible for preparing the report -- and determine if they had retained any pertinent files. [FN1384] David Binney, who is the Assistant Director of the FBI Inspection Division, was very sure that he never received a discovery request for the shooting incident report. Binney emphasized that because a shooting incident report contains sensitive information the Legal Counsel Division would have to authorize the release of the document before it would be produced. Accordingly, if he had received a request, he would have forwarded it to Assistant Director Davis in the Legal Counsel Division. He has no recollection of making such a referral. [FN1385]
In addition to our concern over the quality of the FBI's response to the discovery requests, we are distressed by the apparent lack of coordination between the CID and LCD after the subpoena was received. The FBI's pretrial response to the discovery request appears to have been handled totally by CID. We learned that such involvement by CID in criminal discovery was unusual. [FN1386] No evidence was found that CID ever communicated with LCD when it was responding to the discovery requests. [FN1387]
Later, when the subpoena request arrived at FBI Headquarters, it was handled by LCD with no apparent assistance from CID. We find no evidence that CID and LCD worked together to produce the materials requested in the subpoena.
[FN1388] Although the April 30 search request prepared by Brian Callihan referenced that the report had been produced previously, there is no indication of when Callihan acquired that knowledge. The only conflicting evidence of whether CID was aware of the subpoena came from Dillon who recalled directing the subpoena to Miller and to FBI Headquarters. He seems to believe that he forwarded the subpoena to CID since he recalled speaking to Kahoe about the need to obtain the notes developed during the investigation and that he later learned that the subpoena had been transferred to LCD for handling. At that time, he recalled telling Kahoe that the investigative notes would have to be sent to Miller in order for him to testify. However, Dillon's recollection conflicts with that of Brian Callihan of LCD. Callihan did not recall learning about the subpoena from CID but rather from either a phone call of a facsimile on April 14 or 15, 1993 from the Boise Resident Agency. [FN1389]
In addition to issues associated with the thoroughness of the FBI's response to the discovery request, we are concerned about the nature and quality of the FBI response to the defense subpoena. It is our view that aspects of that response could have been undertaken in a more responsible manner. [FN1390] At the outset, we are troubled that the FBI did not communicate with defense counsel Peterson to determine when Miller would testify. Callihan told investigators that he expected defense counsel to contact Miller. However, we think that the letter was clear that the obligation was upon the FBI not defense counsel to make the contact. We cannot countenance the laissez-faire attitude shown by the FBI to its legal obligations in an ongoing federal trial. Indeed, we are troubled by the relaxed pace at which the FBI responded to the subpoena when they had not even determined a date for Miller's testimony. After receiving the subpoena, Callihan waited two weeks before forwarding it for processing and when it was returned to him, he waited another ten days before drafting a cover letter and sending the package to the mail room. Then, when he forwarded it to the mail room, he neglected to provide specific mailing instructions. Finally, we fail to comprehend why the USAO was not consulted about responding to this subpoena. None of the prosecutors in the USAO -- Howen, Lindquist or Ellsworth -- ever recall being told of the subpoena or of any efforts by the FBI to assemble the requested materials. Nor is thee any evidence that Dillon alerted the prosecutors to the existence of this particular subpoena which was received at the same time as the subpoena for the FBI manual. [FN1391] The cryptic references to the USAO in a few notes do not suffice to establish such knowledge.
Some of these discovery problems seem to have been caused by the failure of the FBI to have an organized system for responding to discovery requests. As previously mentioned, we requested the FBI to conduct another search of its files to ensure that all documents responsive to the discovery obligations in the Weaver case had been produced. [FN1392] We made this request because of our concern over the thoroughness and care in which the earlier searches had been conducted. We see a compelling need for a centralized tracking system in the FBI that would monitor and coordinate discovery and subpoena requests and then record actions taken in a case. Included in this tracking information should be the name of the person responsible for handling the requests as well as an identification of the files searched and the materials produced. Such requests should be handled by one person in one division not by multiple persons in multiple divisions.
In addition to improving the methodology of retrieving responsive documents, we believe that the FBI needs to examine its practices concerning the preservation of case related materials. During our investigation, there were a number of instances in which an interviewee told us that he had prepared a document but no one could produce a copy of it. For example, we were told that there were multiple drafts of the operations plan yet we only were able to locate one draft version. Similarly, we never located any original facsimiles or notes of headquarters personnel that were prepared during the crisis at Ruby Ridge. We are troubled by the apparent lack of a system to preserve such critical records and believe that the FBI needs to institute a system to avoid such omissions in the future.
Although we found no intent by the FBI headquarters personnel to violate the discovery obligations of the government, we believe that the FBI unreasonably resisted the efforts of the USAO to comply with their discovery responsibilities in the Weaver case. In addition, it appears that the FBI did not put forth its best efforts in responding to the discovery requests or the subsequent defense subpoena. Indeed, the decision of the court in October 1993 to fine the FBI for its intransigence on various discovery issues is consistent with our conclusion. Although the facts giving rise to the problems in the Weaver case may be unique, we believe that serious organization problems exist and must be corrected. There is a critical need in the future to improve the quality of the response of the FBI to discovery demands. Such improvement must include establishing an organized system of responding to and monitoring discovery requests and improving the coordination among FBI components.
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1253. This modified open discovery policy provided the defense with greater access to governmental materials and at an earlier time than required under the federal discovery rules. However, unlike an open discovery policy which permits complete access to the files of the prosecution, a modified open discovery policy does not permit such review. The modified discovery policy in effect in the Weaver case was incorporated into a reciprocal discovery stipulation executed by the parties on October 16, 1992.
1254. For a discussion of issues surrounding the scope of the indictment, see Section IV(L), supra.
1255. For a complete discussion of the issues surrounding the performance of the FBI laboratory and the impact of its actions on the discovery process and pretrial preparation in the Weaver case, see discussion in Section IV(J).
1256. On September 3, 1992, U.S. Attorney Maurice Ellsworth wrote letters to U.S. Marshal Michael Johnson and Special Agent in Charge Eugene Glenn requesting them to preserve and copy a list of materials that were needed for discovery and trial. See Letter from Maurice Ellsworth to Mike Johnson, September 3, 1992; Letter from Maurice Ellsworth to Eugene Glenn, September 3, 1992. Ellsworth reiterated this demand in a letter to Glenn on September 8, 1992. See Letter from Maurice Ellsworth to Eugene Glenn, September 8, 1992.
1257. FD-302 Interview of Maurice Ellsworth, October 29, 1993, at 7; Ellsworth Interview, Tape 1, at 30-31.
1258 Stipulation and Reciprocal Request for Discovery and Inspection, Notice of Alibi and Notice of Mental Condition, filed October 16, 1992, at 2.
1260. Id. at 3.
1261. Id. at 4-5.
1262. See Response of the United States to Stipulation and Request for Discovery and Inspection, filed October 23, 1992.
1263. See Letters from Maurice Ellsworth to Eugene Glenn, September 3, 1992 and September 8, 1992.
1264. FD-302 Interview of T. Michael Dillon, October 25, 1993, at 8-9. For example, according to Special Agent Rampton, Lindquist requested all paperwork related to the Weaver case that was in the possession of FBI Headquarters. Thereafter, Rampton passed this request to Dillon. FD-302 Interview of Gregory Rampton, October 18-19, 1993, at 37.
1265. Rampton FD-302, at 32.
1266. FD-302 Interview of T. Michael Kahoe, October 25, 1993, at 9.
1267. See Sworn Statement of Danny O. Coulson, October 4, 1993, at 6; FD-302 Interview of Joseph R. Davis, August 10, 1993, at 5.
1268. Lee C. Rasmussen, the Principal Legal Advisor for the Salt Lake City Field Office, was not involved in the discovery in the Weaver case nor did he ever provide any legal advice regarding any discovery issues. FD-302 Interview of Lee C. Rasmussen, January 12, 1994 at 1-2.
1271. Rampton FD-302, at 19.
1272. Id. at 30; FD-302 Interview of Gregory Rampton, November 9, 1993 and November 22, 1993. Philip may have a slightly different recollection of this incident. He told investigators that he had a vague recollection of an FBI agent from "out west" and an unidentified individual coming to the Inspection Division and requesting the report. He told the agent that the report belonged to another division and, thus, he was without authority to release it. FD-302 Interview of Paul R. Philip, November 3, 1993, at 2.
1273. Rampton FD-302, October 18-19, 1993, at 30. See Rampton FD-302, November 9, 1993 and November 22, 1993. This conflicts with the recollection of Dillon which was that the request for the 302s of the HRT members was cleared through the Legal Counsel Division. Dillon FD-302, at 8. Our investigation suggests that Dillon's recollection is in error since LCD did not appear to have become involved in pretrial discovery issues.
1274. Lindquist Interview, Tape 5, at 1-2. The USAO produced most of these statements to the defense in October and November 1992. A few were not produced until April 7, 1993. See Memorandum from Richard T. Jessinger and Daniel R. Dzwilewski to Robert E. Walsh, October 17, 1993.
1277. Paul Philip of the Inspection Division disagrees with this advice. According to Philip, once an Investigation Division gives the report to the requesting division, that division becomes the owner of the report and entitled to rule on whether the report should be released. FD-302 Interview of Paul R. Philip, November 3, 1993, at 2. Special Agent Venkus told investigators that early in the case he spoke with Brain Callihan of the Legal Counsel Division at FBI headquarters regarding obtaining a copy of the shooting report. Venkus FD-302, at 13.
1282. FD-302 Interview of Dana D. Biehl, August 14, 1993, at 2.
1283. See discussion of this administrative inquiry and the report in Section IV(G).
1284. The FBI FD-302 is the form that FBI agents use to report of summarize the interviews that they conduct.
1285. [GARRITY] Sworn Statement of Eugene Glenn, January 12, 1994, at 36.
1286. [GARRITY] FD-Interview of Gale R. Evans, October 13, 1993, at 7.
1287. See Section IV(F) for a discussion of the development of and importance of this plan.
W. Douglas Gow, Associate Deputy Director of the FBI, requested that this document be prepared in response to a call from Henry Hudson who asked him whether he "had any thought about the handling of [the Weaver] crisis or crisis in general." Hudson told Gow that as the new Director of the USMS he would appreciate any ideas that Gow could provide. Thereafter, John Uda was assigned the task of preparing the document. From the instructions that he received, Uda understood that he was identifying talking points that Coulson and Hudson would want discuss about the Weaver/Harris matter. Uda emphasized that these items were not intended to be criticisms of the USMS but with Hudson. Although Gow had intended to give the critique to Hudson, he never conveyed it to him. See Sworn Statement of W. Douglas Gow, January 4, 1994, at 12; [GARRITY] Douglas Gow, January 4, 1994, at 12; [GARRITY] Gale Evans FD-302, at 10; [GARRITY] FD-302 Interview with John Uda, November 23, 1993, at 1.
1291. Venkus FD-302, at 14; Rampton FD-302, at 33. See also, Lindquist Interview, Tape 5. at 2.
1293. Masaitis Sworn Statement, at 9.
1294. Lindquist Interview, Tape 5. at 29-31.
1295. Although TVCS may sometimes manage a prosecution of a case designated as "major," their role in the Weaver prosecutive was only supportive. FD-302 Interview of James Reynolds, August 11, 1993, at 1.
1297. See FBI Internal Memorandum on "89B-SU-38378 Issues," from Joseph Venkus and Gregory Rampton, August 3, 1993, This memorandum was given to investigators during the October 18-19, 1993 interview of Joseph Venkus.
1298. See Letter from Ronald Howen to Eugene Glenn, January 6, 1993.
1299. Reynolds FE-302, at 2-3.
1300. [GARRITY] Reynolds FD-302, August 11, 1993, at 3.
1301. Reynolds FD-302, at 3; Memorandum from James Reynolds to Mark Richard, March 18, 1993, at 2.
1302. Reynolds FD-302, at 3.
1303. This document is a two page chronology of significant events in the Weaver matter.
1304. This is a one page document which in four paragraphs summarizes the shootings and the surrender at Ruby Ridge.
1305. Reynolds FD-302, August 11, 1993, at 3.
1306. Gale Evans FD-302, at 5-6; [GARRITY]
1307. Gale Evans FD-302, at 6.
1308. FBI Memorandum, January 12, 1993.
1310. Venkus FD-302, at 13.
1311. See Letter from Maurice Ellsworth to Michael Dillon, January 25, 1993, at 1.
1312. Lindquist Interview, Tape 5, at 5-6
1313. Letter from Maurice Ellsworth to Michael Dillon, January 25, 1993, at 1-2.
1314. Id. at 2.
1316. Rampton FD-302, at 32.
1317. Reynolds FD-302, at 4.
1318. Id. When Biehl attempted to gain access to the shooting incident report from the FBI, Gale Evans told Biehl that the "section copy" was missing from their files. Reynolds was suspicious of this excuse and believed that it was part of the "shell game' that the FBI was playing with these documents. Reynolds FD-302, October 6, 1993, at 2.
1319. Memorandum from Dana Biehl to James Reynolds, March 17, 1993, at 1-4.
1320. Memorandum from James Reynolds to Mark Richard, March 18, 1993, at 307; Reynolds FD-302, August 11, 1993, at 5.
1321. Id. at 5. See also, Biehl FD-302, at 1-2.
1322. Incontro FD-302, at 3, Biehl FD-302, at 1-2.
1323. Reynolds FD-302, at 5. Howen stated that he had not problem with the reductions made to the operations plan. Howen Interview, Tape 9, at 55. See also, [GARRITY] Biehl FD-302, at 2.
1324. These documents were items 1431, 1432, 1433, 1434, and 1435 on the discovery list of items produced. See Government's Eighth Addendum to Response to Discovery Stipulation, filed March 26, 1993.
1325. Biehl informed Howen and Lindquist of the results of the meeting. Initially, he believed that the resolution reached at the March 23 meeting ended the disagreement between the USAO and the FBI. He assumed that the documents were produced to the USAO. It was only later that he learned that the documents had not been immediately produced. He told investigators that Howen and Lindquist conceded that they had "dropped the ball" by not pursuing the matter further by contacting DOJ. Biehl FD-302, at 2-3. At his interview with investigators, Howen was unable to recall the circumstances surrounding the delay: Howen Interview, Tape 10, at 11-14.
1326. Government Tenth Addendum to Response to Stipulation and Request for Discovery and Inspection, filed April 7, 1993 at 4-6.
1327. Government Tenth Addendum to Response to Stipulation and Request for Discovery and Inspection, filed April 12, 1993 at 3, 5.
1328. Subpoena Duces Tecum to Inspector Miller, April 13, 1993.
1329. See Section IV(O) for a discussion of the compliance of the government to these other subpoenas.
1330. Dillon FD-302, at 9.
1331. Rampton FD-302, at 31.
1332. See Document entitled. "89B/SU-38378 Issues," July 29, 1993, at 10; Handwritten Notes of Joseph Venkus, April 28, 1993.
1333. Lindquist Interview, Tape 5, at 18-20.
1334. Howen Interview, Tape 10, at 19.
1335. Id. at 41.
1336. Id. at 56-57.
1337. Letter from Charles F. Peterson to Potential Witness, April 12, 1993.
1338. See FD-302 Interview of Brian Callihan, August 6, 1993, at 2; Declaration of Brian Callihan, June 5, 1993, at 1-2. It does not appear that anyone from the FBI ever called Peterson's office to determine a specific date for Miller to appear.
1339. See Declaration of Brian Callahan, June 5, 1993, at 2- 4.
1340. CDRU Discovery Request from Unit Chief of Civil Litigation Unit to Ms. Keeley, Unit Chief of CDRU, April 30, 1993.
1342. Id. 1343. FD-302 Interview of Monique Wilson, November 5, at 1- 2.
1344. Callihan FD-302, August 6, 1993, at 2-3; Callihan FD- 302, November 5, 1993, at 1-2.
1345. Callihan FD-302, November 5, 1993, at 1. No one has ever been able to determine exactly when the package was forwarded to the FBI mail room. The date-stamped file copy of the May 21, 1993 cover letter has never been located. Although no one could ever find any indication that the package had been sent by forth class mail, the assumption by the Information Services Unit, which operates the FBI mail room, was that this was the manner in which the package was sent because of its weight and the absence of mailing instructions. See Declaration of Brian Callihan, June 5, 1993, at 4; FD-302 Interview of Joseph R. Davis, August 10, 1993, at 2-4.
1346. Affidavit of Roberta Cruser, June 4, 1993.
1347. Letter from Brian Callihan to Maurice Ellsworth, May 31, 1993.
1348. See discussion in Section IV(O) which discusses the problems that occurred at trial because of the untimely disclosure by the government of discoverable information.
1349. Howen Interview, Tape 10, at 45, 59.
1350. The USAO had produced most of the sworn statements and the FD-302 statements in this package in October and November 1992. The remaining statements had been produced on April 7, 1993. See Memorandum from Richard Jesinger and Daniel Dzwilewski to Robert Walsh, October 17, 1993.
1351. Trial Transcript, June 4, 1993.
1352. Callihan FD-302, August 6, 1993, at 3.
1353. Davis FD-302, at 2. Davis was unable to recall the name of the Senior Supervisory Resident Agent but Dillon held that position at the time and others, such as Brian Callihan recall that Davis told them that he had discussed the matter with Dillon.
1355. Callihan FD-302, August 6, 193, at 3; Davis FD-302, at 3.
1356. Callihan FD-302, August 6, 1993, at 3; Davis FD-302, at 3-4, On June 5, 1993, Clawson prepared a note to Davis explaining how they received the subpoena. He opined that the response to the subpoena was not delinquent because Miller has not yet been called to testify. However, Clawson informed Davis that the USAO had made two previous requests for all FBI documents pertaining to the Weaver case but that these requests had been handled by the Resident Agency in Boise and the Criminal Investigative explained to Davis that the USAO believed that the recently produced interview notes should have been produced earlier in response to the discovery requests. See Davis Fd-302, at 4; Note dated June 5, 1993, from Clawson to Davis.
1357. Affidavit of Brian Callihan, Jun 5, 1993
1358. Howen Interview, Tape 10, at 55.
1359 Trial Transcript, June 8, 1992, at 84.
1360 Id., June 9, 1993, at 60-61.
1361 Order in the United States v. Weaver, No. CR 92-080-N- EJL, filed October 26, 1993, at 2-13 (Appendix at 16).
1362 Glenn told investigators that he believed to the extent that any controversies arose over certain documents such as the shooting incident report, he attributed them to differences between the FBI Headquarters and the USAO. With regard to those controversial documents that were controlled by FBI Headquarters, Glenn stated that he was simply a conduit transmitting the request and had no role in the decision of whether the document would be produced in discovery. Glenn Sworn Statement, at 35-37.
1363 Howen attributed the resistance to producing these documents to FBI Headquarters rather than the local FBI office. Howen Interview, Tape 9, at 51. Lindquist opined that the FBI case agents were very diligent and helpful in assisting with discovery except when they were under contrary instructions from superiors. Lindquist interview, Tape 5, at 31.
1364 Special Agent Rampton believed that there was an unnecessary delay in producing the shooting incident report and the operations plan. He could understand the need of the USAO for these documents and did not believe that there was anything in the documents harmful to FBI interests. Rampton FD-302, at 36. Although he did not think that the conclusions of the report were relevant to the issues in the Weaver prosecution, Davis conceded that the factual content of the report probably rendered it subject to discovery. Davis FD-302, at 5. Lindquist recalled that Rampton, Venkus and Dillon agreed with him that there was no reason not to produce the report. Lindquist believed that they had recommended to FBI Headquarters that the report be released. However, they indicated to Lindquist that they were encountering significant resistance from FBI Headquarters regarding the production of the report. Lindquist Interview, Tape 5, at 4-5.
1365 Lindquist Interview, Tape 5, at 15; Ellsworth Interview, Tape 5, at 27.
1366 FBI officials were consistently positive in their comments concerning the handling of the discovery disputes by the Criminal Division of DOJ.
1367 Reynolds FD-302, August 11, 1993, at 7.
1369 TVCS Section Chief Reynolds believed that the USAO was never given the opportunity to review the complete field office file. Reynolds FD-302, October 6, 1995, at 6.
1370 Howen was never allowed to review the FBI headquarters files on the Weaver matter and told investigators that he is still not confident that all relevant materials were produced. Howen Interview, Tape 10, at 10-11; accord, Ellsworth Interview, Tape 5, at 29-30.
1371 Lindquist Interview, Tape 5, at 16-17. Defense Counsel Nevin told investigators that he did not have nay significant criticism with regard to the actions of the USAO and that in general, with the exception of laboratory related materials, he would not quarrel with the time that it took to produce the discovery materials. Memorandum from Paula Wolff to Barbara Berran on Interview of David Nevin, December 17, 1993.
1372 Lindquist Interview, Tape 5, at 16-17.
1373 Ellsworth Interview, Tape 5, at 28-29.
1374 See discussion in Section IV(N) concerning the history of the problems between the USAO and the FBI.
1375 Dillon FD-302, at 9.
1376 Howen stated that on a number of occasions that the USAO made both written and oral requests of the FBI to produce all materials having any relevance to the Weaver matter. These requests were made to the FBI office in Boise and presumably relayed to FBI Headquarters. Howen said that they also told members of the Terrorism and Violent Crime Section of DOJ that they suspected that there was some type of file on the shooting incident report and that they wanted access to everything. Howen Interview, Tape 10, at 4-6.
1377 Ellsworth Interview, Tape 5, at 39-40.
1378 Dillon FD-302, at 9-10. Joseph Davis, Assistant Director of LCD also appears to assign responsibility for the problem to Dillon. Davis believes that the primary responsibility for responding to criminal discovery in the FBI usually rests with the office of origin and, in those situation when responsive documents are located elsewhere, it is the responsibility of the office of origin "to set appropriate leads to insure their timely production." Davis FD-302, at 5-6.
1379 Howen Interview, Tape 10, at 55-56; accord, Ellsworth Interview, Tape 5, at 37.
1380 This document consisted of 15 pages of personal notes taken by Gale Evans during the "after action" conference held on November 2, 1992. The after action conference examined a wide range of command and control issues that arose with regard to the response of the FBI to the crisis at Ruby Ridge. Included as topics for discussion were deployment problems, tactical issues and negotiation issues. Gale Evans FD-302, at 3-4. As a precautionary measure, we requested the FBI to search its files again at Headquarters and at the field offices involved in responding to the Weaver crisis to determine if any additional responsive documents existed. This search resulted in the location of one document that had not been previously identified and produced. However, this document did not contain any information significant to the issues examined in this investigation.
1381 See FD-302 Interview of Austin Anderson, October 7, 1993, at 3.
1383 Howen stated that when he viewed and finally received the shooting incident report he never thought to ask the FBI for material in the 1-A file. He told investigators that because it was an internal investigation, he did not know if the 1-A procedure was being followed. Howen Interview, Tape 9, at 21.
1384 The Inspection Division of the FBI is responsible for conducting a shooting incident review when requested by another division. When the review is completed, the report is sent to the requesting division. According to Paul Philip, the Inspector Deputy Assistant Director of the FBI Inspection Division, once the Inspection Division forwards this report to the requesting division, that division becomes the owner of the report and has the right to decide whether the report should be released. FD-302 Interview of Paul R. Philip, November 3, 1993, at 1-2.
1385 See FD-302 Interview of David G. Binney, October 19, 1993, at 1-2.
1386 Gale Evans stated that CID does not normally become involved in discovery in criminal cases. Evans FD-302, at 12.
1387 Thomas Clawson, Unit Chief of the Civil Litigation Unit I of the Legal Counsel Division, was certain that LCD was not involved in responding to the discovery request in the Weaver case. FD-302 Interview of Thomas Clawson, August 12, 1992, at 1. Similarly, Austin Anderson, Unit Chief of the Investigative Law Unit of the LCD, did not recall ever participating in any discussions concerning criminal discovery matters in the Weaver case. He told investigators that Gale Evans, the Unit Chief of the VCMO Unit, confirmed that he had no notes or records indicating that Anderson had discussed any discovery issues with him. Anderson FD-302, October 7, 1993, at 2-3; Gale Evans FD-302, at 12.
1389 Callihan FD-302, August 6, 1993, at 2.
1390 Lindquist stated that his initial reaction to the late production of the shooting incident report was that "somebody was intentionally trying to impede the process." Lindquist Interview, Tape 5, at 21. We found no evidence to support this suspicion.
1391 See Section IV(O) for a discussion of the response of the FBI to the subpoenas for manual provisions and personnel files. Joseph Davis recalls one phone call with Ellsworth in which Ellsworth informed him of the defense request for the manual provisions as well as the shooting incident report. Ellsworth was unable to tell Davis when these requests were made or when they were due. As a result of this conversation, Davis sent an electronic mail message to Beau McFarland around April 26, 1993 requesting him to investigate the matter and to make sure that FBI was responding appropriately. Davis FD-302, at 5-6. However, in that message, Davis wrote only about the subpoena for the manual provisions; no mention was made of the subpoena for the shooting incident report. Memorandum from Davis to McFarland, April 27, 1993.
1392 See discussion in note 1278
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