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B. The Failure of Weaver to Appear for Trial

1. Introduction

On January 18, 1991, Randy Weaver was arraigned on the charges that he made an possessed illegal firearms. At that time, the court set February 19, 1991, as the trial date. Several weeks later the court clerk sent a notice to the parties informing them that the trial date had been changed from February 19 to February 20. Two days later, U.S. Probation Officer Karl Richins sent a letter to Weaver in which he erroneously referred to the trial date as March 20, 1991. When Weaver did not appear in court on February 20, the court issued a bench warrant for his arrest. Almost a month later, on March 14, 1991, when the bench warrant was still outstanding, a federal grand jury returned an indictment against Weaver charging him with failure to appear for trial.

A number of issues have been raised with regard to the conduct of the government in handling this stage of the Weaver matter. These issues include: whether government officials, particularly the U.S. Attorney's Office, knew about the erroneous Richins letter before the court issued the February 20 bench warrant; whether the government responded appropriately to the issues created by the Richins letter; whether the U.S. Attorney's Office erred in presenting the indictment to the grand jury before March 20; [G.J.]

2. Statement of Facts

a. January 18, 1991 Arraignment

On December 13, 1990, a federal grand jury indicted Randy Weaver for making and possessing illegal firearms.[FN71] BATF Agent Herbert Byerly arrested Weaver on January 17, 1991 and transported him to Coeur D'Alene, Idaho for arraignment. On January 18, Byerly informed Assistant U.S. Attorney Howen that Weaver had been arrested, that Weaver had resisted arrest, that Weaver had said when arrested, "nice trick; you'll never do that again" and that Weaver appeared to be associated with the Aryan Nation. Byerly also provided background information on the case and recommended to Howen that Weaver be detained because Byerly did not believe that he would appear for trial. According to Byerly, Howen responded that it would be difficult to detain Weaver and did not offer to oppose the release of Weaver.[FN72]

Weaver appeared in court for his arraignment the following day before U.S. Magistrate Judge Stephen Ayers. No one was present for the government at the arraignment nor was Weaver represented by counsel.[FN73] Before releasing Weaver, Judge Ayers instructed him that he was required to report on a regular basis to Karl Richins, the Pretrial Service Officer, in Boise and that his first contact was to be on January 22.[FN77] Later, Judge Ayers, in order to avoid any misunderstanding, added Richins' name and phone number to the order setting forth the release conditions.[FN78] Judge Ayers told Weaver that it would be a criminal offense if he failed to appear. Weaver said that he understood the penalties for violating the release conditions and that he agreed to abide by those conditions. Thereafter, he signed and received a copy of the release conditions.[FN79] Weaver also signed a bond and the court explained that the bond could be executed if he failed to appear for trial.[FN80] Before terminating the proceeding, Judge Ayers had Weaver confirm that his mailing address was Box 103 in Naples, Idaho.[FN81]

b. Events Occurring From the Arraignment Through February 20, 1991

(1) Communications With Weaver

On January 22, 1991, four days after the arraignment, Judge Ayers sent a letter to Everett Hofmeister informing him that he had been appointed defense counsel for Weaver, that Weaver could be contacted at "PO Box 103, Naples, Idaho 83847" and that the trial date was set for February 19, 1991. A copy of this letter was sent to Weaver. On that same day, Weaver telephoned Karl Richins, the U.S. Probation Officer, and informed Richins that he had been ordered to call Richins on that date. Richins told Weaver that he had not received the paperwork on his case and, thus, could not advise him about the release conditions. Richins asked Weaver to leave his name and phone number so that Richins could call him when he received the case file. According to Richins, Weaver never gave him a phone number where he could be contacted nor could Richins recall what understanding the parties had as to how Richins would contact Weaver in the future.[FN82] After this conversation, Richins never heard from Weaver again.[FN83]

On January 19, 1991, defense counsel Hofmeister sent a letter to the two addresses he had for Weaver, requesting Weaver to contact him. Hofmeister sent similar letters to Weaver at these addresses on January 31 and February 5. Around February 5, Hofmeister contacted individuals who knew Weaver and requested that they instruct Weaver to contact Hofmeister immediately.[FN84]

Meanwhile, in early February, the court learned that the Weaver trial, which had been scheduled for February 19, would have to be changed to give the participants sufficient travel time following a federal holiday on the preceding Monday. On February 5, the court clerk sent a notice to the parties informing them that the trial was rescheduled for February 20, 1991. Although this notice was not sent directly to Weaver, a copy was sent to and received by Hofmeister.[FN85]

Two days later, on February 7, 1991, probation officer Richins sent a letter to Weaver at his Naples address. Richins wrote:

On January 18, 1991, you were released on Pretrial Supervision pending your trial set for March 20, 1991. You contacted our office and I advised you we would be getting back with you as soon as we received the paper work from Magistrate Ayers. I have long ago received the paperwork but have been unable to locate a telephone number where I could contact you. Accordingly, with this letter, I are [sic] requesting you to contact me at 334- 1630 as soon as possible. You may call collect if you choose.[FN86]

(Emphasis added.)

According to Richins, he wrote the letter because he needed to establish pretrial supervision of Weaver and had not heard from Weaver since their January 22 phone conversation.[FN87] The only explanation that Richins could provide for the erroneous trial date was that it was a typographical error. At trial, Richins expressed regret for the error and testified that he had placed the date in the letter as part of his effort to get Weaver to contact him. [FN88] Weaver never responded to Richins' letter.[FN89]

On February 8, 1991, after receiving the February 6 court notice, Hofmeister wrote another letter urging Weaver to contact him and informing Weaver that the trial date had been changed to February 20. Four days later, having still not heard from Weaver, Hofmeister placed numerous unanswered calls to a telephone number at which Weaver reportedly received messages. In addition, Hofmeister asked individuals who had contact with Weaver to ask Weaver to contact Hofmeister immediately. However, as of the morning of February 20, Weaver had not contacted Hofmeister. [FN90]

(2) The "Queen of Babylon" Letters and the Threat Assessment by the U.S. Marshals Service

On February 7, 1991, the U.S. Attorney's Office in Boise received two letters signed by Vicki Weaver. The first letter was dated January 22, 1991 -- the same day that Weaver called Richins - and was addressed to "The Queen of Babylon." It stated in part:

A man cannot have two masters. Yahweh Yahshua Messiah, the anointed One of Saxon Israel is our law giver and our King. We will obey Him and no others. . . . 'a long forgotten wind is starting to blow. Do you hear the approaching thunder? It is that of the awakened Saxon. War is upon the land. The tyrants blood will flow.'[FN91]

The last quote was credited to "Mathews."

The second letter, dated February 3, 1991, was addressed to "Servant of the Queen of Babylon, Maurice O. Ellsworth, U.S. Attny [sic]" and stated in part:

Yah-Yahshua the Messiah of Saxon Israel is our Advocate and our Judge.

The stink of your lawless government has reached Heaven, the abode of Yahweh our Yahshua. Whether we live or whether we die, we will not bow to your evil commandments.[FN92]

Ellsworth did not associate the name Vicki Weaver with any matter pending in his office.[FN93] However, because the language of the letters appeared somewhat threatening, he requested the U.S. Marshals Service in Boise ("USMS") to conduct a threat assessment of the letters.[FN94] Deputy U.S. Marshal Warren Mays was assigned to perform the threat assessment.[FN95]

After checking with state and local agencies, Mays determined that Vicki Weaver was the wife of Randy Weaver.[FN96] Once this connection was made, Chief Deputy U.S. Marshal Ronald Evans convened a staff meeting, to determine how to proceed with the threat assessment. It was decided that Deputy U.S. Marshal David Hunt would be assigned to assist Mays in the inquiry.[FN97]

Thereafter, Hunt and Mays began to gather information to enable them to prepare a "Threat Source Profile" of Weaver.[FN98] Mays first reviewed the bail report prepared for Weaver which revealed that Weaver had admitted membership in the "Aryan Nations/Church of Jesus Christ Christian," had attended three Aryan World Congresses and had been wearing and Aryan Nations belt buckle at the time of the arrest.[FN99] In addition, Mays analyzed the language in the two letters written by Vicki Weaver and concluded that the letters contained "rhetoric commonly associated with the Aryan Nations/Church of Jesus Christ Christian."[FN100] Evans characterized defense counsel Hofmeister as "a noted [Aryan Nations] attorney."[FN101] Based on this information, Mays initially concluded that the two letters from Vicki Weaver contained veiled but not overt threats.[FN102]

Mays next asked Senior Deputy U.S. Marshall Jack Cluff, the resident officer in Moscow, Idaho, about the pending firearms charge against Weaver. Cluff suggested that Mays contact BATF Agent Byerly. Cluff also told Mays that he had learned from Lonnie Ekstrom, a deputy in the Boundary County Sheriff's Office, that Weaver had sent a letter to that office stating that he would not leave his cabin and that law enforcement officers would have to take him out.[FN103] Ekstrom recalled that in the letter the Weavers voiced, "sentiments which indicated that [they] felt as though the end is near and [that] the Federal Agents are watching very closely."[FN104]

Cluff told Mays that Byerly had described Weaver as being "extremely uncooperative at the time of his booking" and believed that Weaver "planned not to appear for future court proceedings." [FN105] Byerly also reported to Cluff that Weaver:

is very adamant and very convinced in his own mind of his religious beliefs in that the government is posing a threat to him. He is very anti-government. He believes that this charge by the federal government against him is the beginning of Armageddon. The religious war is about to begin. The end of the world is coming and he is ready to make his stand in the final battle. I would urge utmost caution and care in his arrest. I believe his children are going to be armed. If the situation is such that they were present during his apprehension, I believe that they should definitely be considered to be a threat to the arresting officers.[FN106]

Mays next spoke with Special Supervisory Agent Michael Kelly who reported that the entire Weaver family, including the 12 and 14 year old children, were armed "at all times." Kelly told Mays that a BATF informant had indicated that the Weaver children slept with weapons in their beds.[FN107] Neither Kelly nor anyone else in BATF advised either Hunt or Mays that BATF had attempted to solicit Weaver to work as an informant. Indeed, it was not until over a year later that the marshals learned of this action.[FN108]

As their investigation continued, Mays was briefed by the U.S. Secret Service on its investigation of Weaver for alleged threats he had made against President Reagan and the Governor of Idaho in 1985.[FN109] In addition, Mays and Hunt interviewed people in the community who might have further background information on Weaver.[FN110] Hunt and Mays also reviewed a copy of the military record "DD-214" for Weaver. Although the record did not indicate that Weaver had been a Green Beret or a member of the Special Forces, they speculated that Weaver may have received some general demolition training based on an indication in the record that Weaver had training as a "combat engineer."[FN111]

On February 11, 1991, Mays forwarded the materials that he had gathered on Weaver to the Marshals Service Threat Analysis Division.[FN112] Around this time, Mays briefed Ellsworth on their findings. Mays told Ellsworth that they did not believe that he was personally at risk and that they doubted that Weaver would appear for trial.[FN113]

When Ellsworth learned that Vicki Weaver was the wife of Randy Weaver, he discussed the matter with Assistant U.S. Attorney Howen, who had been assigned to the Weaver prosecution.[FN114] Ellsworth showed Howen the January 22 letter from Vicki Weaver. Howen identified "the long forgotten wind" passage as not being from the biblical book of Matthew but rather from the "Declaration of War" written by Robert Mathews, the founder of "The Order," a white supremacist group.[FN115] Soon after he wrote the Declaration, Mathews was killed during a standoff with the FBI at a house on Whidbey Island, Washington. Shortly after Howen relayed this information to Ellsworth, Chief Deputy Marshal Evans reported to Tony Perez, the Chief of Enforcement Operations at Marshals Service Headquarters, that sources within BATF had stated that Weaver had the potential to be "another Bob Mathews and his homestead another Whidbey Island standoff."[FN116]

c. February 20, 1991 - The Rescheduled Trial Date

Although the USAO continued preparing the Weaver case for trial, members of that office were beginning to doubt that Weaver would appear for trial. Sometime before February 20, defense counsel Hofmeister told Assistant U.S. Attorney Howen that he had been unable to contact Weaver. Based on this information, the two letters sent by Vicki Weaver and the information developed during the threat assessment, Howen concluded that Weaver would not appear for trial.

Despite the indications that Weaver would not appear for trial, Howen told Byerly that they needed to continue preparing for trial. As a cautionary measure, Howen instructed Byerly to be in court on February 19, the original trial date, in case Weaver appeared.[FN117] Byerly was present in court on February 19, but Weaver did not appear. Howen insisted that he had no knowledge of the Richins letter at the time or when he appeared in court the following day.[FN118]

On February 20, Howen and defense counsel Hofmeister appeared before U.S. District Court Judge Harold L. Ryan. At that time, Hofmeister told the court that he had been unable to contact Weaver.[FN119} Hofmeister then detailed the efforts that he had taken to communicate with Weaver. In addition, Hofmeister said that on the weekend before trial his answering service had received no calls from Weaver and that none of the letters he had sent to Weaver -- all of which had been sent by regular mail -- had been returned.[FN120] Howen told the court that it was his understanding that Weaver had not kept in contact with Pretrial Services as required. He requested that a bench warrant be issued for Weaver's arrest, that his bond be revoked, and that he be taken into custody.[FN121]

Judge Ryan, after determining that the presence specialist had no information about whether Weaver had contacted pretrial services, ordered that a bench warrant be issued for Weaver because he had failed to appear for trial.[FN122] According to Judge Ryan, it was routine practice for him to issue a bench warrant whenever a defendant failed to appear for trial.[FN123] At that time the Weaver matter had no notoriety and was "just another case" to him.[FN124]

d. Discovery of the Richins Letter and the Response of the Government

On February 26, 1991, Ken Keller, a reporter from the Kootenai Valley Times in Bonners Ferry, Idaho, telephoned the U.S. Probation Office and asked Duty Officer Manning whether Weaver had not appeared for trial on February 20 because Richins had sent a letter to him stating that the trial date was March 20. Thereafter, Manning apprised Terrence Hummel, the Chief Probation Officer, of the inquiry. When Hummel retrieved the Richins letter, he discovered that it did, indeed, erroneously refer to the trial date as being on March 20.[FN125]

Hummel promptly contacted Jim Martin, Judge Ryan's law clerk, and told him of the error in the Richins letter.[FN126] Thereafter, they contacted Chief Deputy Marshal Ronald Evans and notified him of the mistake. Evans told them that the Marshals Service "did not intend to execute the warrant until possibly March 16" and would agree to defer execution until March 23.[FN127] Martin told Hummel that he would inform Judge Ryan of the mistake and determine if he wanted to withdraw the bench warrant.[FN128]

In addition to notifying the court and the Marshals Service, Hummel also informed U.S. Attorney Ellsworth of the Richins letter and sent him a copy.[FN129] During that conversation, Hummel suggested that Ellsworth not present the failure to appear charge to the grand jury until April. He characterized Ellsworth as being noncommittal regarding this proposal.[FN130] Later that day, Hummel telephoned Hofmeister and informed him of the Richins letter.[FN131] In a confirming letter to Hofmeister, Hummel stated that he had notified Judge Ryan and the USAO of the error and that he had recommended that the warrant not be executed until after March 20.[FN132]

Following these discussions, Hummel returned the initial call from reporter Keller. In a memorandum to the file, Hummel wrote that he told Keller that he did not know if Weaver had received the Richins letter and that he had not indicated "one way or another whether or not Mr. Richins had, in fact, sent that letter."[FN133] On February 28, Keller wrote in an article that Hummel had disclaimed knowledge of the Richins letter.[FN134] Hummel insisted to investigators that he never denied the existence of the letter but explained that he was cautious about his statements because of the constraints imposed by the Bail Reform Act regarding the pretrial disclosure of information.[FN135]

When Judge Ryan returned to his chambers on February 27, Martin briefed him about the Richins letter. Judge Ryan believed that the arrest warrant should not be withdrawn since Hofmeister had been informed of the change and had attempted to tell Weaver.[FN136] Thereafter, Martin informed Evans that Judge Ryan did not wish to withdraw the bench warrant. According to Evans, Martin stated that Judge Ryan made this decision after reasoning that Weaver had been told that the trial date was February 19 and that Richins was without authority to change the trial date. Martin also told Evans that Judge Ryan wanted the Marshals Service to bring Weaver before him during the week of March 11, since after that time he would be unable to hear the case until late May 1991. [FN137]

Sometime around February 27, Michael Johnson, the U.S. Marshal for the District of Idaho, asked Hummel to send another letter to Weaver informing him of the trial date error and the bench warrant and asking him to contact the pretrial services officer immediately.[FN138] However, Richins testified that no steps were ever taken to inform Weaver of the mistakes in the letter.

On February 28, Evens met with Ellsworth, Howen and Mays to discuss the failure of Weaver to appear for trial, the Richins letter[FN140] and the possibility of presenting an indictment to the grand jury.[FN141] According to Ellsworth, Evans was concerned about the impact of the Richins letter and questioned Ellsworth about how the Marshals Service should proceed. After this discussion, Ellsworth replied, "let's go ahead and return the failure to appear indictment. And if Mr. Weaver appears on March the 20th, we may to [sic] have to dismiss it."[FN142] Ellsworth advised Evans that Weaver was obligated to appear on February 20 since his counsel had received the court notice with the proper date.[FN143]

Hunt testified at trial that the Richins letter created "a potential here for some reasonable misunderstanding."[FN144] Hunt explained that if Weaver had appeared on March 20, they had contemplated that dismissal of the indictment was possible.[FN145] According to Mays, in light of the Richins letter, the position of the Marshal Service was that the bench warrant and the indictment "would be dropped" if Weaver appeared on March 20. [FN146]

Because of the Richins letter, the Marshals Service decided to wait until after March 20 to effect the warrant.[FN147] In the interim, the Marshals Service continued to gather information about Weaver, in part to determine if contact could be made with him. [FN148] On March 4, Hofmeister informed Evans that despite numerous phone calls and letters, Weaver still had not contacted him.[FN149] Since Weaver was not communicating with his own counsel, the marshals concluded that a friend of the Weavers might be more successful in conveying a message to them. The marshals identified Bill and Judy Grider as candidates for this role. The Griders lived in a cabin near the Weavers and were known to share philosophical views similar to those held by the Weavers.[FN150]

On March 5, Hunt and Mays met with the Griders and informed them that they had an arrest warrant for Weaver. Bill Grider told the marshals that Weaver believed that he was being persecuted and would be treated unfairly if he submitted to the system. At that point, Judy Grider stated that Weaver had received a letter from the court telling him that he did not have to appear until March 20. The marshals asked the Griders to inform Weaver that they did not want a confrontation and that he should surrender to authorities. The Griders agreed to convey the message and to report Weaver's response.[FN151]

Hunt and Mays met with the Griders the next day. At that time, Bill Grider gave the marshals a letter from Weaver, which he said contained Weaver's response to the surrender request. The letter, dated March 5, 1991, was addressed to the "Servants of the Queen of Babylon" and was signed by all five Weavers -- Randy, Vicki, Sara, Samuel and Rachel. It stated in part:

We, the Weaver family, have been shown by our Savior and King, Yahshua the Messiah of Saxon Israel, that we are to stay separated on this mountain and not leave. We will obey our lawgiver and King.

You see, the Mighty One of Heaven knows his people. You are servants of lawlessness and you enforce lawlessness. You are on the side of the One World Beastly Government. Repent for the Kingdom (government) of Yahweh is near at hand. Choose this day whom you will serve. As for me and my house -- we will serve Yah- Yahshua, the King.

Whether we live or whether we die, we will not obey your lawless government.[FN152]

According to Bill Grider, Weaver stated that, if he dies, "he is going home and the kids want to go with him." When Hunt asked Grider what would happen if he went to Weaver's cabin to arrest him, Grider responded that Weaver had warned that "if a man enters my property with a gun to do me harm, you can bet that I'm going to shoot him to protect myself."[FN153]

Evans interpreted this letter as "some type of possible suicide pact by the [Weaver] family"154 but cautioned that it was important that they "not read too much or too little into the letter in its present context."[FN155] Hunt and Mays, in a Threat Source Profile, opined that Weaver might be deliberately seeking a confrontation with what he considered to be a "corrupt and evil government." They referred to several reports on file at the Boundary County Sheriff's Office that indicated that Weaver had fired weapons at others because of trespassing or other alleged property disputes. In addition, the Profile noted that, "Weaver is armed most of the time . . . Sources have stated all family members carry side arms and keep other weapons located in strategic positions in the house and out buildings." The Profile stated that records indicated that Weaver had purchased four handguns, six rifles, and two shotguns.[FN156]

Hunt approached the Griders again on March 8 and requested that they ask Weaver how they could avoid a confrontation. In addition, Hunt requested the Griders to ask Weaver to allow the children to leave so that they would not become involved in the dispute. On March 11, Bill Grider called Hunt and said that Weaver identified conditions that would have to be fulfilled in order to resolve the controversy. First, Weaver wanted BATF to admit that they had behaved improperly, that they had made a mistake and that the government was after him. Second, Weaver wanted BATF to return the pistol that they had allegedly "stole" from him at the time of the arrest. Next, Weaver wanted a written apology from Sheriff Whittaker who had called him "paranoid" in court. Finally, Weaver told Grider to tell authorities that if his children could not live in peace on the mountain then they did not want to live.[FN157]

The last statement troubled Hunt and caused him to wonder if Randy and Vicki Weaver might use their children as "the first line of defense."[FN158] Evans concluded that a combination of tactical and nontactical approaches should be considered to apprehend Weaver. Evans noted that a tactical approach was viewed as the easiest to accomplish but that "it also offer[ed] the greatest possibility of innocent casualties." He suggested several options including attempting discussions with Weaver by a negotiation team comprised of a Marshals Service negotiator, Hofmeister and Richins, or using other intermediaries, such as the parents of Vicki Weaver, through whom to negotiate with the Weavers. However, in making these suggestions, Evans noted that there were "strong indications that Weaver now mistrusts [Hofmeister] and Richins due to conflicting information in letters received by Weaver." Evans also cautioned that there was "the probability that Weaver will open fire on any law enforcement officer or agent or ZOG ("Zionist Organized Government") once they are identified.[FN159]

According to U.S. Marshal Michael Johnson, sometime during the week of March 11, Judge Ryan had a conversation with Evans regarding the apprehension of Weaver. At that time, Judge Ryan reminded Evans and Johnson that they need to arrest Weaver and "get him in his courtroom."[FN160]

e. Decision to Present an Indictment to the Grand Jury

U.S. Attorney Ellsworth authorized Howen to present the failure to appear indictment to the grand jury, with the understanding that if Weaver appeared for trial on March 20 they "would possibly have to dismiss the indictment."[FN161] Ellsworth explained that dismissal would be necessary under those circumstances, "[b]ecause the fact that he showed up would at least create reasonable doubt in my mind and possibly in a juror's mind as to whether or not the erroneous letter had been a basis for him not showing up February 20th, but showing up on March 20th."[FN162]

Although Howen was unable to recall the specifics of the discussions in which he participated regarding the impact of the Richins letter, he did recall that it was their conclusion that Weaver never intended to appear for trial on February 19 or 20, nor would he appear for trial on March 20. In reaching this conclusion, they reasoned that Weaver had been specifically informed a number of times that the trial date was February 19 and that he had the responsibility of maintaining contact with the probation officer and his attorney. Despite these instructions, Weaver failed to comply. Moreover, Howen thought the Queen of Babylon letters evinced an intent by Weaver to remain secluded in his home and not appear for trial.[FN163]

The USAO made no efforts to contact Weaver or his counsel to discuss the Richins letter or Weaver's failure to appear. Howen believed that such efforts were best left to the Probation Department and the Marshals Service. Howen thought that they had contacted Hofmeister and inquired whether he could persuade Weaver to talk to him and surrender.[FN164] In addition, he recalled hearing that Marshal Johnson had asked Hummel to write a letter to Weaver explaining the mistake in the letter.[FN165] Ellsworth had no discussions with the Probation Department or with the Marshals Service about sending a letter to Weaver informing him of the error.[FN166]

With regard to the decision to present an indictment to the grand jury, Howen stated that even when a bench warrant is outstanding for a failure to appear, it is his policy to obtain an indictment for the charge because the judge could withdraw the bench warrant. Howen believed that an indictment and arrest warrant would give him more control over the matter and protect the agents executing the warrant from civil liability.[FN167] Although Ellsworth recalled that the Marshals Service wanted an indictment, he could not remember the specific reasons for this position.[FN168] However, Ellsworth conceded that, with the bench warrant, the marshals did not need an indictment to have jurisdiction over Weaver for his failure to appear.[FN169]

Howen and Ellsworth planned to obtain a sealed indictment from the grand jury during their session in the second week of March and to instruct the marshals not to execute the arrest warrant until after March 20. If Weaver appeared for trial on March 20, both Howen and Ellsworth were prepared to dismiss the indictment provided Weaver had a good faith explanation as to why he had not appeared earlier.[FN170] Howen could not recall why, with the bench warrant outstanding, he presented the indictment on March 14 instead of waiting until the April session of the grand jury. He speculated that it could have been because of a scheduling conflict that he may have had in April although he reiterated that he was convinced that Weaver had intentionally failed to appear for trial, a failure unrelated to the error in the Richins letter.[FN171] Ellsworth acknowledged that they had discussed waiting until April 1991 to present the indictment but decided not to wait since they thought the evidence indicated that Weaver had no intention to appear for trial on March 20.[FN172]

f. March 14, 1991 Indictment for Failure to Appear


[G.J.] [FN173]


[G.J.] [FN174]





3. Discussion

a. Government Knowledge of Erroneous Richins Letter Prior to February 20, 1991

This investigation has found no evidence that anyone in the government, including the USAO, was aware of the error in the February 7 Richins letter until February 26, 1991, when the news reporter first contacted the U.S. Probation Office. None of the individuals questioned indicated or suggested that such knowledge existed prior to that time. Nor was any other evidence obtained from which such knowledge could be inferred. Although Howen instructed Byerly to monitor the courtroom on February 19, it appears that this action was unrelated to any knowledge by Howen of the Richins letter but rather was a precautionary measure taken by Howen after receiving indications that Weaver might not appear for trial. Thus, at the earliest, government officials learned of the error six days after Judge Ryan had issued the bench warrant on February 20, 1991. Consequently, we find no factual basis for the allegation that the existence of the Richins letter was concealed from the court on February 20, 1991.

b. Appropriateness of Government Response to the Richins Letter

Four governmental agencies were involved in the Richins letter issue: the federal district court, which issued the bench warrant for Weavers failure to appear; the federal probation office, which wrote the erroneous letter; the U.S. Marshals Service, which was responsible for apprehending Weaver on the bench warrant; and the U.S. Attorney's Office, which was responsible for prosecuting the firearms charges and for deciding whether an indictment should be presented for the failure to appear charge.

After being informed of the mistake in the Richins letter, there was a flurry of activity by each of these entities. Phone conversations were initiated, meetings were conducted and memoranda were written. The evidence indicates that the immediate reaction of almost all involved was that the letter was significant, although differences of opinion existed as to the impact of the letter and what, if any, actions should be taken.

With regard to the role of Judge Ryan, we believe that he took and unnecessarily rigid view of the impact of the Richins letter. his initial reaction to the effect of the letter was that it did not excuse Weaver from appearing for trial. He seemed to base his decision on two factors. First, Weaver had been explicitly informed several times of the trial date yet had failed to appear for trial. Second, defense counsel had made numerous attempts to contact Weaver, including to inform him of the correct change in the trial date, but Weaver had failed to respond. Although we agree that these facts provided sufficient ground upon which to issue the bench warrant for the failure to appear, we believe that the Richins letter made necessary a serious reassessment as to whether some corrective action should have been taken.

We find it was not unreasonable for Weaver to assume that the Probation Office was a government agency acting on behalf of the court and authorized to inform him of the trial schedule. It is unrealistic to expect the average citizen to be versed in the division of responsibilities within the judicial system. We believe that the preferable approach would have been for the probation officer to send a corrected letter or, perhaps to have the court clerk issue a notice acknowledging the miscommunication and informing Weaver of the correct trial date.

With regard to the conduct of the Probation Office, it was its mistake that created this problem. our investigation produced no evidence that this error was anything but an unintentional mistake by Richins. Nor did we find any indication that Hummel intentionally denied to the reporter that the erroneous letter had been sent. Rather, it is our conclusion that the caution of Hummel to avoid improperly disclosing confidential information may have caused him to couch his response in such a manner that the reporter interpreted the response as a denial.[FN178] However, we have difficulty understanding why the office did not send a letter to Weaver explaining the mistake. Although U.S. Marshal Johnson requested Hummel to send such a letter, Hummel did not honor this request.

The Marshals Service, in our view, was placed in the middle of this controversy. It immediately recognized the letter as a significant matter that had a potential impact on the viability of the bench warrant and contacted the other governmental agencies involved and attempted to determine how best to proceed. The initial reaction of Chief Deputy Marshal Evans was to defer execution of the warrant. Marshal Johnson also wanted the probation officer to send a letter correcting the mistake. When they consulted with the U.S. Attorney about how to proceed, Ellsworth advised them that they should withhold any tactical service of the bench warrant until after March 20, the trial date erroneously referenced in the Richins letter.

From the evidence presented during the investigation, it appears that the Marshals Service sought guidance from both the court and the U.S. Attorney's Office. The reaction of the court was to do nothing to correct the letter since in its view Weaver was clearly obligated to appear. The position of the USAO was somewhat inconsistent. On one hand, it argued that all indications were that Weaver was not going to appear for trial and that the mistake in the letter had not caused Weaver to form this intent nor would a correction cause him to appear. In its view, a corrected letter would not result in Weaver's appearance. However, on the other hand, the USAO indicated that if it obtained an indictment before March 20, 1991 and if Weaver appeared on or before March 20 it either "would" or "possibly would" move to dismiss the indictment. We think that this somewhat inconsistent position evinces the realization that the letter might provide an explanation for Weaver's failure to appear.

It appears that although the USAO was consulted they never took control of the issue or urged the sending of a letter to Weaver identifying the error. Such a posture was neither prudent nor advisable. The justification given for their inaction seemed to be that they believed that all indications were that Weaver was not going to appear for trial. They maintained that Weaver had clearly been instructed about the trial date and his obligation to comply with all the conditions of his release. Moreover, they argued that Weaver's counsel, despite numerous attempts, had been unsuccessful in his efforts to contact his client. In addition, Vicki Weaver, presumably with Randy Weaver's knowledge and approval, had written and mailed two letters before the Richins letter was sent which evidenced an intent not to appear. Furthermore, the Marshals Service investigation indicated that Weaver had antigovernment views and distrusted the government. Finally, in response to the marshal's note requesting surrender, Weaver sent a letter that stated that his family would"not obey your lawless government."

If these facts had existed without the presence of the Richins letter, we would concur with the conclusion of the USAO that Weaver would probably not appear for trial. However, the facts did not exist in a vacuum. Even Ellsworth recognized the importance of the letter when he instructed the marshals not to participate in any tactical attempts to execute the warrant until March 20. If Ellsworth thought that the letter was without legal effect, this instruction would have been unnecessary. Similarly, both Ellsworth and Howen recognized that if an indictment were obtained, it might "possibly" have to be dismissed if Weaver appeared for trial on or before March 20. Their recognition that Weaver's possible confusion about the trial date might lead to a dismissal demonstrates that the Richins letter warranted a more active response by the government.

Furthermore, the fact that Weaver was known to have an intense distrust of government might also cause one to conclude that the letter might have intensified his distrust and contributed to his reluctance to appear for trial. It is clear from Weaver's comments to the Griders that he received the Richins letter. These comments, which were relayed to the marshals, indicated that Weaver was suspicious of what he viewed as inconsistent messages from the government and his own counsel, and that this inconsistency enforced his belief that the government was conspiring against him.

We recognize that we have the benefit of more information than was available in 1991, and have had greater time to assess how the government should have responded. However, irrespective of the advantage of hindsight, we are troubled by the rigidity of the government's approach and the lack of leadership exhibited by the USAO on this issue. Although we do not believe that the response of the government to this letter was illegal or violated Weaver's constitutional rights, we do not understand the reasons for the USAO not taking control of this issue and coordinating a unified governmental response. Indeed, it was incumbent upon the USAO to have the Probation Office send an appropriate correction and to have attempted to discuss the matter with the court. Such action would have taken little effort and would have eliminated any question as to whether Weaver was confused.

c. Propriety of Seeking an Indictment on March 14, 1991

Despite the existence of an outstanding bench warrant, the USAO decided to present an indictment to the grand jury charging Weaver with failure to appear. Howen decided to present the indictment on March 14, 1991, six days before the erroneous trial date stated in the Richins letter, because the grand jury only sat once a month. For reasons previously discussed, the USAO was convinced that Weaver was not going to appear.

As to why the USAO wanted an indictment, Howen explained that an indictment gave him more control and protected the marshals executing the warrant from civil liability if the court were to withdraw the bench warrant without their knowledge. Howen could not recall what, if any, reasons existed for not delaying the presentment of the indictment until the April session of the grand jury. This investigation found no indication that either the Marshals Service or the court applied any pressure directly or indirectly to the USAO as to when or whether to seek an indictment.

We are troubled by the decision of the USAO to seek an indictment before March 20. Its words and actions demonstrate that it had some concern, or at lease question, about the impact of the Richins letter on the failure to appear charge. We are not persuaded by the reasons that the USAO articulated for seeking the indictment when they did. At the time that it sought the indictment, a bench warrant was outstanding. The USAO had never received any indication that the court would withdraw the warrant. To the contrary, the court was firmly resolved that the bench warrant was appropriate and should be executed. Furthermore, if Weaver had been arrested on the bench warrant, it is certain that he would not have been released. This would have enabled the USAO to present an indictment to the next grand jury without there being any concern that Weaver would flee. Seeking an indictment at the time that the USAO did created an appearance of governmental overreaching.

d. [G.J.]




[G.J.] [FN179]







4. Conclusion

There is no evidence that members of the USAO, the federal probation office and Marshals Service intentionally concealed the erroneous Richins letter from the court on February 20, 1991. However, we conclude that the USAO, the probation office and the court should have appreciated the potential impact of the letter and should have pursued simple and straight forward steps to remedy the error. The decision to seek an indictment prior to the March 20 date state in the letter was unnecessary and created an impression of prosecutorial overreaching. [G.J.]

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71 See 26 U.S.C.  5861 (d) and (f).

72 Devane Report, December 17, 1993.

73 Former U.S. Attorney Maurice Ellsworth explained that because of the distance from Boise to Moscow, his office did not routinely attend preliminary hearings unless it was a high profile case or there was a strong indication that the defendant posed a flight risk. Interview of Maurice Ellsworth, Tape 1, at 40 (hereinafter cited as "Ellsworth Interview"). Accord, Trial Testimony of Stephen Ayers, April 21, 1993, at 26-27.

74 Arraignment Transcript in United States v. Weaver, No. 90- 092-N-HLR, on January 18, 1991, at 6 (hereinafter cited as "Arraignment Transcript").

75 Id. at 10.

76 Id.

77 Id. at 12.

78 Id. at 18.

79 Id. at 15. The Order setting forth the conditions of release reiterated that the next court appearance was on February 19, 1991 and that Weaver had to contact Richins on January 22, 1991. Condition 7(g) required Weaver to "refrain from possessing a firearm, destructive device, or other dangerous weapon." Order Setting Conditions of Release in United States v. Weaver, No. 90- 092-N-HLR, January 18, 1991, at 2 (Appendix at 4).

80 Arraignment Transcript, at 16-17.

81 Id. at 17-18.

82 See Trial Testimony of Karl Richins, April 22, 1993, at 27- 30.

83 Id. at 31-32.

84 Hearing Transcript in United States v. Weaver, No. 90-092- N-HLR on February 20, 1991, at 2-5 (hereinafter cited as "Hearing Transcript").

85 See Notice date February 5, 1991, in United States v. Weaver, No. 90-092-N-HLR (Appendix at 7).

86 See Letter from Karl L. Richins to Randy Weaver, February 7, 1991 (Appendix at 8). There is no indication on the letter that Probation sent copies to any other party.

87 See Richins Trial Testimony, April 22, 1993, at 32.

88 Id. at 36-37, 39-41.

89 Id. at 38.

90 Hearing Transcript, February 20, 1991, at 2-5.

91 Letter from Vicki Weaver to the "Queen of Babylon", January 22, 1991 (Appendix at 5).

92 Letter from Vicki Weaver to the "Servant of the Queen of Babylon", February 3, 1991 (Appendix at 6).

93 Ellsworth Interview, Tape 1, at 35-36.

94 Id. at 35. One of the responsibilities of the United States Marshal Service is to assess the seriousness of threats made against judicial and law enforcement officials. FD-302 Interview of Ronald D. Evans, October 21, 1993, at 1.

95 Ronald Evans FD-302, at 1.

96 Sworn Statement of David Hunt, February 5, 1994, at 3; FD- 302 Interview of W. Warren Mays, October 5, 1993, at 2.

97 Mays FD-302, at 2.

98 Hunt Sworn Statement, at 3; Mays FD-302, at 3.

99 Report of Investigation by Mays, February 8, 1991, at 3.

100 Id. at 3.

101 Memo from Evans to Hunt, Cluff and Mays, February 11, 1991, at 1.

102 Hunt Sworn Statement, at 2.

103 Supplemental Memorandum from Ronald Evans to Tony Perez, February 20, 1991, at 2.

104 Letter from Lonnie Ekstrom to Jack Cluff, February 20, 1991. Ekstrom could not locate Weaver's letter but summarized its contents in his letter to Cluff.

105 Report of Investigation by Mays, February 8, 1991, at 3.

106 Memo from Evans to Perez, February 20, 1991, at 2.

107 Report of Investigation by Mays, February 8, 1991, at 3.

108 Mays FD-302, at 2; Hunt Sworn Statement, at 5. Memo from Evans to Hunt, Cluff and Mays, February 11, 1991.

109 Memorandum from Evans to Perez, February 11, 1991, at 2.

110 Mays FD-302, at 2.

111 Hunt Sworn Statement, at 2, 6; Mays FD-302, at 2, 4. Mays stated that he had been told that Weaver was an explosives expert and former Green Beret. Weaver claimed to Secret Service investigators in 1985 that he had served three years as a Army Special Forces Green Beret and that he had been an Army engineer. FD-302 Interview of Randy Weaver, February 12, 1985. Later, he made similar claims to other including Jackie Brown, a friend of the Weavers. Weaver told Brown that he had participated in "drug raids" with the CIA and that he had been a member of a special group of Green Berets. Weaver professed that he became disillusioned with the CIA when officials kept the drugs for themselves. See Sworn Statement of Stephen McGavin, November 19, 1993, at 5.

112 Memo from Evans to Hunt, Cluff, and Mays, February 11, 1991, at 1.

113 Mays FD-302, at 3; Ellsworth Interview, Tape 1, at 53-54.

114 Ellsworth Interview, Tape 1, at 36.

115 Howen Interview, Tape 3, at 19-22. Ellsworth remembers this conversation but believes it may have occurred after the return of the March 14, 1991 indictment. Ellsworth Interview, Tape 2, at 1-2.

116 Memo from Evans to Perez, February 20, 1991, at 2.

117 See Byerly Trial Testimony, on April 20, 1993, at 68.

118 See Howen Interview, Tape 2, at 3, 42-43. See also, Byerly Sworn Statement, at 13. If Weaver had appeared, Byerly was to inform Weaver that the trial date had been changed and that he should contact his attorney immediately. Id.

119 Judge Ryan believes that one of his law clerks advised him shortly before the trial that Weaver would probably not appear. FD-302 Interview of the Honorable Harold Ryan, November 9, 1993, at 1.

120 Hearing Transcript, February 20, 1991, at 2-5. Warren Mays testified at trial that the local postal inspector told him on February 21, 1991 that Bill Grider had picked up the mail from the Weaver box for the previous three weeks. See Mays Trial Testimony, April 23, 1993, at 111-12.

121 Hearing Transcript, February 20, 1991, at 6-7.

122 Id. at 7.

123 FD-302 Interview of the Honorable Harold Ryan, November 9, 1993, at 1.

124 Id. at 2.

125 See Memo from T.A. Hummel to File, February 26, 1991 (hereinafter cited as "Hummel Memo") (Appendix at 9); FD-302 Interview of Terrence A. Hummel, October 19, 1993, at 2.

126 Hummel discussed the matter with Martin instead of Judge Ryan because Judge Ryan was travelling back from northern Idaho. See Hummel Memo, February 26, 1991.

127 Id.

128 See Memo from Evans to Perez, February 27, 1991, at 1 (Appendix at 11).

129 Hummel also discussed the letter with Richins, who was quite concerned about the error. When Richins asked if there was anything that he could do to correct the mistake, Hummel told him that he had handled the matter and had done everything that he could do. See Richins Trial Testimony, at 46-51.

130 See Hummel Memo, February 26, 1991; Hummel FD-302, November 12, 1993, at 1.

131 See Hummel Memo, February 26, 1991. 132 See Letter from T.A. Hummel to Everett Hofmeister, February 26, 1991 (Appendix at 10).

133 See Hummel Memo, February 26, 1991.

134 Memo from Evans to Perez, March 12, 1991, at 2.

135 Hummel FD-302, at 1.

136 FD-302 Interview of James L. Martin, October 23, 1991, at 4. See also, Howen Interview, Tape 2, at 49.

137 See Memo from Evans to Perez, February 27, 1991, at 1 (Appendix at 11) Evans Memo, at 1. Hunt testified at trial that Evans told him that law clerk Martin had informed him that the bench warrant was still in effect and that the Marshals Service "would proceed with our duty." Trial Testimony of David Hunt on May 3, 1993 at 73-75. A Marshals Service Daily Report dated February 28, 1991, which was an Addendum to the Enforcement Division Daily Report, provided an update on the Weaver matter. It stated that "[a] Federal judge in D/Idaho has ordered the USMS to have Weaver in court for his trial beginning March 11, 1991." This report also referred to preparations by Marshals Service to arrest Weaver on March 10, 1991 with the support of state and local police authorities. 138 See Memo from Evans to Perez, February 27, 1991, at 3; Hunt Trial Testimony, May 5, 1993, at 9-10.

139 Richins Trial Testimony

140 Howen cannot recall when or how he learned of the Richins letter although he knows it was after Weaver failed to appear on February 20th. See Howen Interview, Tape 2, at 44-45.

141 See Trial Testimony of Maurice Ellsworth, April 22, 1993, at 26-29. See also, Evans FD-302, at 1. Although Ellsworth did not recall Mays being a participant in this meeting, Mays testified at trial that he was present. See Mays Trial Testimony, May 5, 1993, at 2-3. On that same day, Evans and Deputy Marshall Jack Cluff had a telephone conference call with Ken Keller, the reporter from the Kootenai Valley Times. Keller told them that someone came into the newspaper office and stated that Randy Weaver, his wife and children, along with the Grider children, "are waiting at the Weaver cabin, and are prepared to make a final stand." Report of Investigation by Evans, February 28, 1991.

142 Ellsworth Trial Testimony, April 22, 1993, at 30; Ellsworth Interview, Tape 1, at 42-44.

143 FD-302 of Maurice Ellsworth, October 29, 1993, at 2. Evans described the meeting as follows:

The U.S. Attorney has determined that it is in the best interest of the Department of Justice to withhold any tactical approach to service of the warrant on Weaver until after March 20, 1991. The Bench Warrant will remain in effect. . . .

The U.S. Attorney intends to indict Weaver on 3/12/91 for FTA but admits he will most probably be forced to dismiss the FTA indictment prior to any trial. Defense counsel for Weaver has been instructed by the Chief Judge to 'find your client and surrender him to the U.S. Magistrate in Northern Idaho'. . . .

Memo from Evans to Perez, February 28, 1991, at 1 (Appendix at 12).

144 See Hunt Trial Testimony, May 3, 1993, at 66.

145 Id. at 66-67.

146 See Mays Trial Testimony, May 5, 1993, at 6-8.

147 A Marshal Service Special Operations Division document dated March 5, 1991 and entitled, "Significant Events," stated that after Evans spoke with the United States Attorney and the ATF case agent, it was decided "the district will delay the attempt to [sic] RANDALL C. WEAVER. . . . Chief Evans advised that WEAVER will be indicted on March 12, 1991, and arrested after March 20, 1991."

148 Hunt Trial Testimony, May 3, 1993, at 66-67.

149 See Evans Trial Testimony, May 5, 1993, at 63.

150 Law enforcement regarded the Griders as "more radical and dangerous than Weaver." See Addendum to Enforcement Division Daily Report, February 28, 1991, at 1. In May 1990, the Raus purchased land that the IRS had seized as a result of tax liens. Without the permission of the Raus, the Weavers assisted the Griders in moving into a cabin on this property. Thereafter, the Raus were forced to obtain a court order to evict the Griders from the cabin. See Incident Report of Boundary County Sheriff's Office, June 7, 1990.

151 Report of Investigation by Hunt, March 5, 1991, at 2.

152 Letter from the Weavers to "servant of the Queen of Babylon", March 5, 1991 (Appendix at 13). Mays prepared an analysis of the Biblical references in this letter and the earlier ones and concluded that "Weaver sees the court and USMS personnel as servants of the Queen of Babylon, those who serve her serve Satan." Report of Investigation by Mays, March 25, 1991, at 1-2.

153 Report of Investigation by Mays, March 6, 1991, at 2.

154 Memo from Evans to Perez, March 7, 1991, at 1. Michael Weland, a reporter for the Kootenai Valley Times who interviewed Weaver in May 1992, echoed this view. Weland believed that Vicki Weaver "would rather die along with her family in their cabin than subject herself and her family to the law enforcement agencies . .. . [T]hat would include committing suicide instead of surrendering." FD-302 Interview of Michael Weland, August 25, 1992, at 2.

155 Memo from Evans to Perez, March 7, 1991, at 1.

156 Threat Source Profile, March 7, 1991, at 3, 7-8, 15.

157 Report of Investigation by Hunt, March 11, 1991, at 1.

158 Memo from Evans to Perez, March 12, 1991, at 2.

159 Id. Vicki Weaver's parents, the Jordisons, visited the Weavers in April 1991. Afterwards, they reported to Evans that Weaver feared the government was planning to take his land away because he failed to go to court "for something he did not do." The Jordisons could offer no suggestions as to how the matter could be resolved peacefully. Report of Investigation by Evans, April 24, 1991, at 3-4.

160 FD-302 Interview of Michael Johnson, October 5, 1993, at 3.

161 Ellsworth Trial Testimony, April 22, 1993, at 33.

162 Id. at 34.

163 See Howen Interview, Tape 2, at 46.

164 Id., Tape 3, at 2-4

165 Id. at 3.

166 Ellsworth Interview, Tape 1, at 45. In retrospect, Howen concluded that perhaps they should have sent Weaver a letter explaining the error although he remained convinced that Weaver did not intend to appear. Howen Interview, Tape 3, at 5.

167 Howen Interview, Tape 2, at 47; Tape 3, at 12-13.

168 Ellsworth Interview, Tape 1, at 45-46.

169 Id. at 46.

170 Howen Interview, Tape 2, at 47-48; Tape 3, at 6, 10.

171 Howen Interview, Tape 3, at 6-7. Howen insisted that no one from the Marshals Service pressured the U.S. Attorney's office to indict Weaver in March. Id. at 20.

172 According to Ellsworth, while he was U.S. Attorney this was only the second case in which a bench warrant had been issued for a defendant failing to appear for trial. In both cases, his office had sought an indictment charging the failure to appear. Ellsworth Interview, Tape 1, at 44-45.

173 See [G.J.]

174 See [G.J.]

175 [G.J.]

176 [G.J.]

177 [G.J.]

178 Former U.S. Attorney Ellsworth opined that he did not think that it was particularly appropriate for a Probation Officer to be talking with a member of the press under any circumstances. Ellsworth Interview, Tape 1, at 52.

179 [G.J.]

180 [G.J.]

181 [G.J.]

182 [G.J.]

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