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C.Efforts by the Marshals Service to Effect the Arrest of Weaver

1. Introduction

It has been suggested that the shooting deaths of Marshal Degan and Sammy Weaver on August 21, 1992 were the result of a scheme by the Marshals Service to assault the Weaver property, or at the least, the result of inadequate planning. This inquiry examined the scope of the Marshals Service investigation between February 1991 and August 1992 and examined the options the marshals considered to effect the arrest of Weaver.

2. Statement of Facts

a. Involvement of the Marshals Service Special Operations Group

On March 18, 1991, Ronald Evans requested the assistance of the Marshals Service Special Operations Group ("SOG").183] SOG is a voluntary unit in the Marshals Service specifically trained to handle dangerous or complex matters, such as hostage situations involving fugitives.[FN184] Evans compared the Weaver situation to the violence surrounding the attempted arrest of Gordon Kahl when Evans was Chief Deputy of the North Dakota District.[FN185] He added that many days/nights of surveillance would be necessary to determine the Weavers' daily routine and asked for SOG assistance in determining how to arrest Weaver "while minimizing risk to all persons involved. . . . Ultimately, we must find a single weakness which will cause Randy Weaver to leave the house if only momentarily."[FN186]

On March 23, 1991, Evans briefed SOG Commander John Haynes, Deputy Commander Louis E. Stagg, and other SOG personnel.[FN187] At that time, Stagg asked Evans about the pressure he was under to apprehend Weaver, and Evans replied that a "very senior Judge" was not going to tolerate delay in capturing Weaver.[FN188] It was tentatively agreed that an SOG reconnaissance team would travel to Idaho in mid-June to gather information for a plan to arrest Weaver. Haynes directed that Stagg lead the mission.[FN189]

SOG also retained the services of Dr. Walter F. Stenning, Ph.D., a psychologist, to construct a psychological profile of Randy Weaver. Dr Stenning concluded:

In my best professional judgement, Mr. Randall (sic) would be an extreme threat to any police officer's attempt to arrest (sic) him. Further, Mr. Randall (sic) has indoctrated (sic) his family into a belief system that the end of the world is near and that his family must fight the fences (sic) for evil that want to take over the world. I believe his family may fight to the death. If Mr. Randall (sic) is captured by your force, I feel the remaining members of the family will use all force necessary including deadly force to regain Mr. Randall's (sic) freedom. Also, all evidence indicates that the Randalls' (sic) home and surrounding property is defensively fortified to repel assault. In summary, my best professional judgement is that Mr. Randall (sic) and family will resist and have the means to resist all but a military type assault. Further, even with a military type assault the family will fight, possibly to the death. It seems most effective to wait until Mr. Randall (sic) leaves his house and is alone to make the arrest on the Federal warrant.[FN190]

b. SOG Reconnaissance and Recommendations

Between June 17 and 24, 1991, the SOG reconnaissance team assessed the Weaver case in Idaho. SOG Deputy Commander Staff was accompanied by Deputy Marshals Cody Thorpe and Larry Ely. They reviewed the files of the local marshals and met BATF agents, Forest Service representatives, the local sheriff, and others. BATF Agents Byerly and Kelly told them that "Weaver and his entire family will react violently to any attempt by the USMS to arrest Weaver and that Vicki Weaver and the children should be considered just as dangerous as Weaver." Kelly also reported that Weaver had plans to remove himself and his family to caves in the mountain. [FN191] Byerly speculated that Weaver might leave the property to attend the upcoming Aryan World Congress.[FN192]

Sheriff Whittaker told the SOG reconnaissance team that he thought Weaver feared that the government would take his property through forfeiture of the bail bond and might kill his family in an assault to arrest him. In addition, Whittaker also told Staff that Weaver had threatened his neighbors, the Raus.[FN193] Whittaker, however, did not "completely share the assessment of other (law enforcement) agencies that Weaver is completely beyond rational reasoning and will fight to the death."[FN194]

Stagg briefed Marshal Johnson and U.S. Attorney Ellsworth about his findings. He recommended against a tactical assault on the Weaver compound because of possible injury to the marshals and the women and children. Instead, it was his recommendation that the indictment be dismissed and then refiled later under seal. Staff also cautioned that an attack must be forceful to eliminate the risk of Weaver escaping into the woods, where he would pose more of a threat.[FN195] Thereafter, Stagg requested an opportunity to present his findings to Chief Judge Ryan but Ellsworth refused the request.[FN196] Stagg told Hunt that this "was the worse (sic) situation he had seen in 23 years."[FN197]

The SOG team set forth its findings in a Law Enforcement Operations Order, which portrayed the situation as exceedingly difficult and Weaver as "extremely dangerous and suicidal." The team concluded that:

Weaver has been preparing for five months [since his arrest by BATF] for his war or confrontation with law enforcement and it is very likely that he has established numerous fortifications and defensive positions on his property. It is also possible that Weaver has placed booby traps and/or command detonated explosive devices on routes of approach or concealment.

The report set forth a proposal to arrest Weaver with "a minimal risk of loss of life" and "minimum force necessary to effect arrest." The proposed plan contemplated use of reconnaissance teams to determine whether Weaver could be arrested away from his residence, wife and children. If that were not feasible, the team would gather intelligence necessary to implement a "tactical movement" with armored vehicles.[FN198]

Following the submission of the report, SOG took no additional action until Evans again requested SOG's assistance in effecting Weaver's arrest. On September 25, 1991, Evans wrote:

Patience and negotiations have not been rewarded in the instant matter. We have communicated with the Weaver family through his family, friends, and his attorney. We have provided him with multiple opportunities to surrender to this office, the local sheriff, or to his court appointed counsel. . . . One option remains and should be exercised quickly. We still need to verify Weaver's existence on the property and test his dedication. In testing the latter, it must be done with a careful balance to limit and minimize risk to law enforcement, the Weaver family members, and to Randall Weaver. Without experimentation, we are stymied and without answers. . . . While time may have initially been on our side, it has now turned against us. We are within thirty days from being locked out of the area by climatic factors. If we avoid this opportunity, it will be May, to June, 1992 before any course of action can be initiated. I seriously doubt the court will reasonably wait until 1992 for the initial endeavor to serve the warrant.

Evans then asked that a team of SOG members be dispatched to the Weaver property to contact Randy Weaver. He envisioned their role as follows:

They will be instructed to arrest Weaver without injury to themselves or any other person. If they determine that this cannot be accomplished without life threatening circumstances, they will be instructed to leave the immediate area without delay. ...[FN200]

On September 28, 1991, a seven man SOG detail was dispatched to assist in arresting Weaver. However, upon arrival, the team concluded that "the information upon which the SOG move order was issued was inaccurate," and the plan to arrest Weaver was cancelled.[FN201]

Thereafter, the team gathered additional information and learned that Vicki Weaver was pregnant and close to delivery. In addition, the team reported that Weaver was still on the mountain and that the situation was as dangerous as before. It also concluded that "it [was] very likely that any attempt to arrest Weaver at his property will result in an armed gun battle and subsequent loss of life."[FN202]

On July 9, 1991, Deputy U.S. Marshal Cluff and Everett Hofmeister, Weaver's appointed counsel, told Rodney Willey, a Weaver associate, that if Weaver surrendered, the failure to appear charge might be dismissed.[FN203] They also told Willey that the sentence on the weapons offense would be minimal because Weaver did not have a criminal record. On July 10, Willey informed Hofmeister that Weaver would not surrender because "[his] rights will be violated."[FN204]

In late September 1991, Hunt and Ely interviewed Beverly and Ed Torrence, who owned land adjacent to the Weaver property. The Torrences explained that they had encountered the Weavers a few days earlier when they had gone up to view their property. At that time, the Torrences drove near the Weaver house and stopped to ask about some property markers. The Weaver dogs came to their car, followed by Sammy Weaver, who called to the house. The Torrences then saw Randy Weaver and "Dennis" looking down on them from a rock outcropping.[FN205] Each held a rifle or shotgun. Thereafter, the Torrences were invited into the Weaver cabin where Randy and Vicki Weaver explained their religious and political views.

Randy Weaver told the Torrences that the Aryans are the true chosen people of Yahweh and that the Jews are impersonators.[FN206] He claimed that a federal informant had introduced him to the Aryan Nations. Weaver also discussed the BATF arrest and that he was expecting federal agents to come to his home, but that he was not going to be arrested by anyone. According to Weaver, he and his family would shoot federal law enforcement officials who came on his property. "If they do take me, I'll take some with me," and that is "[w]hy we have the guns." Beverly Torrence observed that Weaver appeared "vehement in his belief that he would rather fight than go peaceable (sic)."[FN207]

During this period, the marshals also received information that Weaver might attend the America's Promise Ministry, a suspected Aryan Nations church, in Sandpoint, Idaho. The Marshals Service began surveillance of the church, but Weaver was not seen.[FN208]

d. Exchange of Surrender Terms

On October 9, 1991, Deputy Marshal Mays interviewed Alan Jeppeson, who had been observed bringing supplies and mail to the Weaver cabin.[FN209] Mays asked Jeppeson to convey another negotiation offer to the Weavers. A series of exchanges followed. On October 12, 1991, Jeppeson gave Mays a letter from the Weavers which stated:

The U.S. Government lied to me - why should I believe anything its servants have to say . . . . This situation was set up by a lying government informant whom your lawless courts will honor. Your lawless One World Beast courts are doomed. I have appealed to Yahweh's court of Supreme Justice. We will stay here separated from you & your lawless evil in obedience to Yahshua the Messiah.[FN210]

Jeppeson told Hunt that Weaver did not want to be tried in Idaho "due to prejudice against those who believed in separation of the white race."[FN211] According to Jeppeson, Weaver might surrender, if the trial could be moved and if Jeppeson could remain with Weaver until he was released or sentenced.[FN212]

Thereafter, the Marshals Service began to formulate a surrender offer. This offer included promises that: the government would not interfere with Vicki Weaver's custody of her children; [FN213] the Marshals Service would not harass Randy Weaver's family; and the Government would not move to forfeit Randy Weaver's property.[FN214]

The following day, Jeppeson delivered a letter from Vicki Weaver, addressed to Mays and Hunt, that posed a number of questions, including:

1. Why a government informant or agent cannot be cross-examined by a defense attorney?

2. Why did the U.S. Dist. Judge in Coeur D'Alene tell [the Weavers] that if [they] lost [their] case [they] would lose the $10,000 bond to pay the attorney?[FN215]

3. Why is there a concerted effort to 'set up' for prison or murder all ex-green berets (Special Forces). My husband is an ex-green beret. We know there are those already in prison from 'set ups.' They all went to court expecting justice from the courts of the country they loved. They didn't receive any!

(Emphasis in original.) Jeppeson told the marshals that he thought that Weaver would agree to meet Hunt.

On October 16, 1991, Evans and Hunt gave Jeppeson a letter to give to Randy Weaver that responded to the questions Vicki Weaver had raised. Later that same day, Jeppeson gave Hunt a brief response signed by Vicki Weaver, which declared "[t]here is nothing to discuss. [Randy] doesn't have to prove he is innocent. Nor refute your slander."[FN216]

e. Post-Negotiation Investigation

In October 1991, Hunt and Evans drafted a letter to Weaver, for Marshal Johnson's signature, containing proposed surrender terms. They sent the letter to the USAO for review.[FN217] Assistant U.S. Attorney Howen rejected the proposal on October 15, 1992 and explained in a subsequent letter that:

[I] cannot authorize further negotiations or discussions along this line with defendant or his agent for two reasons. First, since the defendant is represented by Everett C. Hofmeister, appointed counsel, all contact with the defendant must be through his lawyer and not by ex parte means. Department of Justice policy and the Cannons (sic) of Ethics prohibit direct or indirect contact with a defendant who is represented by counsel for any negotiation purpose. Second, the . . . areas of proposed negotiation are either not within my power to grant or bind the government, to (sic) broad in their scope, or are the type of matters properly addressed in a plea agreement in exchange for guilty pleas, but not mere surrender.[FN218]

As a result of Howen's directive, the Marshals Service did not send the proposed letter.

Following the termination of negotiations, Hunt continued to gather information. He determined that Weaver had "set an approximate 100 yard perimeter around his house" that gave him "high ground coverage of 360 degrees." Hunt described Weaver's routine:

Weaver's tactics appear to be that he and [Kevin] Harris will cover any intruders [on the property] from a distance until they are identified....In most cases Weaver will send his son or Harris to investigate a situation while Weaver covers them. Weaver also has a very aggressive dog that will warn them if someone is approaching.[FN219]

There was very little activity by the marshals on the Weaver matter through the winter months because the property was snowed in, and surveillance was not practical.[FN220] However, they continued to receive information about who was visiting the Weaver property.

On March 1, 1992, the Spokesman Review, a newspaper in nearby Spokane, Washington, reported that Weaver's children were armed and quoted area residents who predicted violence if law enforcement agents attempted to apprehend Weaver. Allan Jeppeson was quoted as saying, "They'll lose their lives if they go up there and threaten Weaver" and "he don't want nobody on his mountain."[FN221]

On March 4, 1992, Cluff and Evans traveled to the Rau house to obtain an update on Weaver's activities and to check on the status of a telephone being installed there at the Marshal Service's expense. Once there, Cluff and Evans decided to drive up the mountain road leading to the Weaver cabin.[FN222] They were in plain clothes and rode in an unmarked four-wheel drive vehicle. As they proceeded up the mountain road, the marshals found that vehicle noise on the unmaintained road was clearly audible for great distances. When they reached the top of the road, by the entrance to the Weaver property, they saw signs reading, "White Power is Supreme" and "Bow Down to Yahweh."

Cluff and Evans then saw Randy Weaver, armed with a rifle, and a boy and a girl standing above them on a rock formation. The boy also had a rifle. A yellow dog ran up to the vehicle, barking.[FN223] When Weaver told them they were trespassing, they responded that they were interested in buying property. Weaver told them to return with a realtor. Cluff and Evans left.[FN224]

Thereafter, Evans determined that additional reconnaissance was necessary. He had learned of previously unknown trails to the Weaver property and believed it was necessary to explore them.

f. Briefing of the Marshals Service Director

A meeting was held on March 27, 1992 at Marshals Service Headquarters to brief Acting Director Henry Hudson and other officials, including Duke Smith, Associate Director for Operations, Tony Perez, Chief of the Enforcement Division, Inspectors Arthur Roderick and William Hufnagel of the Enforcement Division, Deputy Marshals John Haynes and Lou Staff of SOG, and Marshal Johnson.

At the meeting, Haynes and Stagg presented a plan for an assault on the Weaver compound, but recommended against taking such action. Hudson agreed that a tactical approach did not appear viable because of their concern for the safety of Vicki Weaver and her children.[FN225]

As an alternative, Hudson telephoned U.S. Attorney Ellsworth and asked him to consider dismissing the warrant against Weaver and reissuing it under seal. Hudson thought this would relieved the pressure to arrest Weaver and might cause Weaver to believe it was safe to come off the mountain. Hudson explained to Ellsworth that Weaver could then be arrested without launching an assault on the compound and risking injury to the children and to government personnel.

Ellsworth told Hudson that he thought it would be unethical to dismiss the indictment and then reindict Weaver in secret.[FN226] Assistant U.S. Attorney Howen said they could not dismiss the indictment because Judge Ryan was calling for Weaver's arrest. [FN227] In response, Hudson offered to travel to Boise to meet Judge Ryan, but his offer was not accepted.[FN228]

Unable to resolve the matter in this fashion, Hudson ordered that any plan adopted should avoid potential harm to Vicki Weaver and the Weaver children. He believed that a "ruse" arrest would be ore likely to achieve this goal than an "operational" strategy.[FN229]

Thereafter, the Weaver case was transferred to the Enforcement Division and was given the name "Operation Northern Exposure." The primary responsibility for developing a plan was given to Deputy Marshal Arthur Roderick, Branch Chief of the Enforcement Division.[FN230]

g. Development of Three Phase Operational Plan

After considerable discussion with the Idaho District and Headquarters, Roderick and Hufnagel devised a three phase plan for arresting Weaver. Under Phase I, a team of marshals would assess the feasibility of technical surveillance of the Weaver cabin and property.[FN231] This would necessitate inspection of the Weaver property to determine the surveillance equipment that could be used.[FN232] A team comprised of Roderick, Hufnagel, and Deputy U.S. Marshals Mark Jurgenson, Ron Libby, and Dave Hunt, was assembled to carry out Phase I.[FN233]

(1) Phase I

At the beginning of Phase I, Roderick rented a condominium on Schweitzer Mountain, approximately 25 miles from the Weaver property which was to serve as a command post. The team also spent several days conducting surveillance of the Weaver house from the north and west ridges and looking for sites on which to mount surveillance cameras. During this process, they observed the Weavers responding to certain noises by running with rifles to a rock ledge that overlooked the driveway.[FN234]

On one occasion during Phase I, Roderick nearly had an encounter with Kevin Harris. While Roderick was in the woods near the north ridge observation post, he saw Harris ride nearby on a motorcycle and past the unmarked marshal's truck. When Roderick returned to the truck the tires on the truck were flat.[FN235]

(2) Phase II

On April 13, 1992, Roderick and Hufnagel briefed Acting Director Hudson on the results of Phase I of the plan to arrest Weaver.[FN236] While Hudson was shown photographs of the area, Hufnagel described the locations of surveillance cameras, which would provide information about the Weavers' daily routine. Information obtained from the surveillance cameras during Phase II was expected to assist the Marshals Service in developing options for Phase III of the plan, which was the arrest of Weaver.[FN237] In addition, Hudson was informed that the assistance of five additional marshals was needed for Phase II.[FN238] Acting Director Hudson approved Phase II on or about April 13, 1992. The Phase II Plan noted that Kevin Harris was now living in the Weaver cabin. Harris was described as "an ardent supporter of Weaver's [who] thinks of [Weaver] as his father."[FN239]

On April 18, the marshals installed surveillance cameras on the west ridge and, on April 22, they installed the cameras on the north ridge. Soon thereafter the cameras became operational after a number of technical problems had to be solved.[FN240] The marshals had to make several trips to the camera sites, often in darkness, to bring the heavy batteries needed to power the cameras.[FN241]

During Phase II, the team also made three trips onto the Weaver property to survey the terrain because little was known about the land surrounding the Weaver cabin. Each trip began before daybreak and the marshals used night vision equipment.[FN242] Although aerial photographs portrayed the land as flat, it was actually heavily wooded and frequently steep and rugged.

The closest that the marshals got to the cabin was during the third trip in the first week of May. While it was still dark, Roderick, Hunt and Libby took the "East Trail," which ended behind the Weaver cabin. They then passed some water tanks a few yards from the cabin and worked their way down to the spring house by the lower garden. This was the first time any marshal had circled the Weaver house and viewed the surrounding grounds. While they were in the lower garden area, Libby spotted a small dog, who was "yapping", but who stopped when the marshals took cover.[FN243]

During this period, Buster Kittel, a private citizen, went to the mountain to survey property he had recently purchased. To reach his property, he had to drive past the Weaver cabin. As he reached the Weaver driveway, Kittel heard a shot from a small caliber gun and saw Sammy Weaver standing above him with a rifle on a rock outcropping. Randy then joined Sammy, holding a pistol and a rifle. Weaver asked Kittel if he was a federal marshal and directed Kittel's girlfriend to get out of the truck. Weaver told Kittel that he did not believe that Kittel had bought property and told him to come back with proof. The next day Kittel returned with some paperwork, which he showed to Vicki Weaver. The Weavers then allowed Kittel to proceed to his property.[FN244]

Video tapes produced from the surveillance cameras during Phase II were sent to Headquarters which had directed the cameras to continue to be operated. Because the batteries were running low, the marshals decided to replace them with solar panels, which were installed on May 1 and 2. Kevin Harris apparently heard the marshals working on the north ridge and was seen looking up at the area. A few days later the camera on the north ridge stopped transmitting. Upon investigation, Roderick and two other marshals discovered that the camera equipment had been stolen.[FN245]

On April 13, 1992, the Marshals Service was informed that a crew from "Now It Can Be Told," a television program hosted by Geraldo Rivera, may have been shot at while flying over the Weaver property in a helicopter.[FN246] Two weeks later, Randy and Vicki Weaver were interviewed on May 2, 1992 by Michael Weland, a local newspaper reporter. Vicki said that the mountain had been given to them by "Yahweh" and that "We will not leave our mountain."[FN247] Weland also quoted Vicki as saying that her family feared that Randy would "be railroaded through the court and once he was gone [the government] would have come it, kicked us off the property and torn this place apart." Randy Weaver was quoted in the same article as stating that: "Right now, the only thing they can take away from us is our life. Even if we die, we win. We'll die believing in Yahweh."[FN248]

(3) Transition to Phase III

After Phase II of the operation had been completed, Roderick and Hufnagel developed two alternative plans for capturing Weaver, one "lethal," the other "non-lethal." Both proposals involved teams of marshals surrounding the cabin and forcing Weaver outside. The plans differed in that, under the "lethal" plan, the teams would be armed while under the "non-lethal" plan, they would use rubber bullets and other passive strategies, such as cutting off the water supply to the cabin.[FN249]

Acting Director Hudson was briefed on the options for Phase III.[FN250] Deputy Attorney General George Terwilliger, who happened to be present at Headquarters, also attended the meeting. When Hudson asked what the marshals would do if the Weaver children fired at them, Roderick responded that they would defend themselves. Terwilliger found this "unacceptable."[FN251] Hudson rejected both the "lethal" and the "non-lethal" plans out of fear for the children's safety.[FN252]

Thereafter, Roderick developed an undercover plan to arrest Weaver, which required two marshals to assume the roles of husband and wife and to purchase a plot of land north of the Weaver property. To provide security for the marshals, the land purchase would have legitimate paperwork. In addition, the undercover marshals would clear the property to create the impression that they were authentic purchasers. Five two-man teams would accompany the undercover marshals to the mountain on each visit and provide cover from the woods.[FN253] The plan assumed that Weaver would become accustomed to the undercover marshals, leading to an opportunity to arrest him out of the presence of the other family members. The marshals believed that it might take up to a year to secure Weaver's arrest.[FN254]

Although final approval was needed from Acting Director Hudson, Roderick was given permission by Jim Roach, Deputy Director for Operations, in late May 1992, to begin preparations for the undercover operation. Roderick chose Deputy Marshal Mark Jurgensen of the Seattle office for the undercover role. Roderick, Jurgensen, and Hunt started assembling documents necessary to carry out the ruse.[FN255]

h. Delay in Implementing the Undercover Operation

Roderick was instructed not to put the undercover plan into effect while Hudson's confirmation was pending before the U.S. Senate.[FN256] In early August 1992, Hudson was confirmed Director of the Marshals Service and gave oral approval of the undercover operation shortly thereafter.[FN257] Because there had been no surveillance of the Weaver property since May, Roderick thought it necessary for a team to visit the site and update their information.[FN258]

3. Discussion

A number of allegations has been raised about the conduct of the Marshals Service between February 1991 and August 1992. We examine in this section these allegations.

a. The Initial Response of the Marshals Service to Weaver's Failure to Appear

Before the failure to appear indictment was returned, Judge Ryan issued a bench warrant and directed the Marshals Service to arrest Weaver. Judge Ryan declined to withdraw the warrant when he learned that the Probation Office had sent Weaver a letter with an incorrect trial date. After the indictment was returned, Ellsworth rebuffed Hudson's request to dismiss the indictment and return it under seal.

We appreciate the problem the Marshals Service faced. It could not ignore the Court's order or the indictment and, thus, had no choice but to take steps to apprehend Weaver to face the pending charges. Indeed, Former Director Hudson has explained that the Marshals Service has no independent role in evaluating charges when it is called upon to apprehend a fugitive.[FN259] In addition, this investigation has found that simply leaving Weaver on the mountain, despite its facial appeal, was not an option available to the Marshals Service once charges had been instituted.[FN260] Moreover, the marshals had a legitimate concern that the Weavers were harassing their neighbors, the Raus. Indeed, by August 1992, it was feared that if Weaver were allowed to remain at large, there would be an incident in which the Raus, or other innocent problems, might be harmed.[FN261]

Notwithstanding the need to apprehend Weaver, it appears at initial glance that the resources the marshals committed to the case were disproportionate to the relatively insignificant underlying charge.[FN262] However, at the same time, we recognize that no one, including Randy Weaver, is entitled to ignore the rule of law. Thus, all factors considered, we acknowledge that the Marshals Service had no option but to respond.

Because the Marshals Service had no option but to pursue Weaver's arrest and because that arrest posed possible injury to law enforcement and to the Weavers, it was incumbent on other law enforcement agencies and the court to assist the Marshals Service in resolving the impasse. As we note below, the Marshals Service received little practical assistance from the U.S. Attorney's Office which also hindered communications with the court. We are troubled that no agency or individual took action in response to the concerns of the Marshals Service.

b. Considerations by Marshals Service of Alternatives to Secure the Arrest of Weaver

The Marshals Service employed many different options for securing Weaver's arrest before settling on a plan in May 1992. The record is replete with discussions of proposals made by different components of the Marshals Service. Its approach was extraordinarily cautious.

Common to each strategy the Service considered was a concern for the safety of the Weaver children and the arresting marshals. For this reason, a tactical approach, that is, an armed raid on the residence, was considered unrealistic by Idaho marshals as early as March 1991. The Special Operations Group reached the same conclusion in June 1991 and again in September 1991 after reviewing a psychological profile of Weaver and conducting its own investigation in Northern Idaho.[FN263] In March 1992, Director Hudson ruled out any "tactical" or "operational" strategy that did not eliminate the possibility of harm to Vicki Weaver or her children. Hudson even rejected a "non-lethal" tactical plan, which contemplated the use of rubber bullets, because it involved an assault on the cabin and, therefore, posed a potential danger to the children.[FN264]

The problem of "innocent casualties" arose out of a mass of evidence that Weaver and his family were armed and determined not to submit to authorities without a fight. For example, BATF informed the marshals that Weaver had resisted its "ruse" arrest in December 1990, had attempted to grab a weapon during the arrest, and had declared that he would not be tricked again. BATF had also reported that Weaver and his family were armed "at all times" and could present a danger to arresting officers. Additional information collected by BATF suggested that Weaver thought the end of the world was approaching and that he was prepared for a final battle on his property. Weaver's military record revealed that he may have received demolition training, and the marshals feared that he had established fortifications and defensive positions on his property.[FN265] Weaver also had written to the Boundary County Sheriff that he would not leave his cabin and that law enforcement agents would have to take him out.[FN266] The "Queen of Babylon" letter sent to U.S. Attorney Ellsworth had quoted a "Declaration of War" by a white supremacist who had died in a violent confrontation with law enforcement officers. Frank Kumnick, the leader of a local Aryan Nations church and a friend of Randy Weaver, had told Mays that Weaver spoke of having a violent confrontation with the law since 1984 and that Vicki and Randy Weaver had "ideas of martyrdom."[FN267] In addition, there were reports that the Weaver children were well trained in the use of firearms and would protect their father if an arrest were attempted on the property.[FN268] Surveillance showed that the Weavers responded to the noise of approaching vehicles by running with rifles to a rock ledge.[FN269] Various intermediaries had reported that Weaver repeatedly said that he would not leave his property and that he would shoot intruders if he thought it necessary to protect his family. Finally, the Weavers signed a letter stating that the Weaver children would not leave the mountain.[FN270]

This list illustrates the data the Marshals Service had collected and is by no means exhaustive. We found no countervailing evidence that Weaver would surrender peacefully. Accordingly, we believe that the wariness of the Marshals Service was justified.

In addition, we believe that the caution of the Marshals Service also stemmed from its experience with Gordon Kahl, the head of Posse Comitatus. When the Marshals Service attempted to arrest Kahl in 1983, a firefight erupted in which two marshals were killed and Kahl and his son were wounded.[FN271] Chief Deputy Ron Evans was Chief Deputy of the North Dakota District when the Kahl incident occurred and compared the Weaver matter to the Kahl case.[FN272]

In view of the disadvantages attending a "tactical" approach, the marshals began to explore "non-tactical" alternatives. In March 1991, Evans discussed sending a negotiator to the Weaver cabin under a "white flag." However, the approach was abandoned because it was believed that Weaver would "fire on any law enforcement officer or agent of [the Zionist Organized Government]."[FN273]

Both the Special Operations Group and Director Hudson asked U.S. Attorney Ellsworth to dismiss the indictment against Weaver and to re-issue it under seal to reduce the pressure to arrest Weaver and to trick him into leaving his property so that he could be arrested without risk to the children. Ellsworth and Howen refused Hudson's request.[FN274]

The marshals also pursued information that Weaver might leave his property to attend a suspected Aryan Nations church. The marshals began surveillance of the church but Weaver did not appear.[FN275]

Beginning in October 1991, Mays and Evans initiated a series of communications with Randy Weaver through various intermediaries, such as the Jeppesons, Griders, and Vicki's parents, the Jordisons. The marshals and Weaver also exchanged surrender terms. However, Assistant U.S. Attorney Howen ended these discussions in October 1992, directing that all communication with Weaver be through his counsel.

The "non-tactical" arrest plan that Director Hudson finally approved in the Summer of 1992 was passive almost in the extreme. Indeed, the marshals were willing to wait up to a year for an undercover marshal to gain Weaver's trust. Under this plan, "cover" teams of marshals would arrest Weaver only if he could be taken into custody without harm to his family.[FN276]

We do not believe that the Marshals Service acted precipitously or unreasonably in developing its plan to arrest Weaver. The Marshals Service examined many alternatives in devising its course of action. Some options were foreclosed by other agencies; others were thought to be too dangerous. The Marshals Service eventually decided to pursue a non-tactical arrest which posed the least threat of physical violence. However, the Marshals Service recognized that with any plan that it considered, a potential risk of violence existed considering Weaver's threats to resist arrest violently.

c. Pressure Exerted on Marshals Service to Arrest Weaver

This investigation also examined whether the manner in which the Marshals Service treated the charges against Weaver was affected by improper, external influences.

(1) The Court

Judge Ryan issued a bench warrant for Weaver's arrest following his failure to appear for trial. When he learned a week later that Pretrial Services had sent Weaver a letter bearing an incorrect trial date, Judge Ryan declined to withdraw the warrant. Judge Ryan, who characterized Weaver as "just another case," told this investigation that he was satisfied that Weaver knew of the February 20 trial date. According to Judge Ryan, it was routine for him to issue a bench warrant when defendants did not appear for trial.[FN277]

Judge Ryan denies pressuring the Marshals Service to arrest Weaver. He explained that he already had a full caseload and "was in no hurry to get Weaver arrested." In fact, Judge Ryan said that he thought scarce judicial resources were being wasted on the large number of gun cases brought in federal court and, in particular, he complained about undercover "sting" cases involving firearms. Judge Ryan recalled a few casual conversations with Evans about the Weaver case and once spoke "in jest to Evans [about] when was he going to get his job done," in reference to executing the Weaver bench warrant. However, he claimed that he did not urge anybody "to hurry up and get Weaver before the court."[FN278]

Deputy Marshals Hunt and Evans do not believe that the Court exerted undue pressure on the Service,[FN279] and we have found little or no evidence to the contrary.

(2) The Media

The marshals were sensitive to public opinion about the Weaver case. Several marshals were concerned about the public perception of the marshals and Weaver in Northern Idaho. In October 1991, Hunt wrote:

Weaver is losing support locally from his friends and associates. They believe he is becoming very paranoid and suspects everyone is informing on him. The USMS is receiving growing support in the way that we have handled this situation. The community seems to be impressed with the USMS not over reacting and their concerns for the safety of all involved. An approach of even handiness (sic) and concern has began (sic) to impress even hard core Aryan types.[FN280]

In March 1992, an article appeared in the Spokesman Review, a newspaper in nearby Spokane, Washington, marking the one-year anniversary of the bench warrant. The Chicago Tribune published a similar article on the same day, which described Weaver as a "folk hero" holding the Marshals Service at bay.[FN281] According to Evans, "pressure from USMS headquarters to effect the arrest of Weaver increased substantially after these two articles."[FN282] He did not believe, however, that Headquarters compelled the marshals to take actions that placed the Weavers or the marshals in undue danger, and this investigation has uncovered no evidence to the contrary.[FN283] Indeed, this regard for local sentiment does not seem to have had a significant impact on the marshals' handling of the case. If anything, it made them more leery of proceeding precipitously.

(3) The U.S. Attorney's Office

The USAO, in particular U.S. Attorney Ellsworth and Assistant U.S. Attorney Howen, played a large role in shaping the Marshals Service's approach to arresting Weaver. However, Ellsworth and Howen did little, if anything, to facilitate the marshals' assignment. To the contrary, in more than one instance, they made decisions or took actions that made the marshals' task more difficult.

(i) Halting Negotiations

In October 1991, Mays and Evans began a series of communications with Weaver through intermediaries and exchanged terms of surrender with him. Howen directed the marshals to discontinue contact with Weaver because he was represented by counsel, thus, effectively foreclosing communication. Although we are not convinced that these negotiations would have been successful if pursued, we find that Howen's decision was erroneous and unduly hampered the marshals' efforts.

Howen's statement that contacts with a represented person are prohibited are accurate but incomplete. For example, Disciplinary Rule 7-104(A)(1) of the ABA Model Code of Professional Responsibility and its successor, Rule 4.2 of the ABA Model Rules of Professional Conduct, provide that an attorney shall not communicate with a party represented by counsel, unless the attorney has the consent of counsel or is "authorized by law." [FN284] The disciplinary rules have long recognized exceptions to the general prohibition against contacts with represented persons such as to determine if the person is in fact represented by counsel or when counsel has been given prior notice of the communication and consents.[FN285]

Howen overlooked these exceptions to the general rule and, in effect, terminated negotiations with Weaver. It was apparent by the Autumn of 1991 that Weaver was not cooperating with his appointed counsel who nine months earlier had told Judge Ryan that he was unsuccessful in contacting Weaver.[FN286] Prior to this time Hofmeister had continued to try to assist the marshals in apprehending Weaver. In July 1991, he met with them and Rodney Willey, an associate of Weaver, in an effort to spur negotiations. On July 10, 1991, Hofmeister wrote Weaver and explained that the firearms charge was relatively minor and that he thought Weaver had a good defense to the charge. Hofmeister added, "the 'cause' in which you believe does not justify the damage you do to yourselves, because the offense Randy is charged with is not much greater than many traffic offenses.[FN287]

Hofmeister reported to the marshals that soon after sending this letter he received two letters from Vicki Weaver, in which she state that they were resolute as it was "Yashua's plan" that they live or die on the mountain.[FN288] Hofmeister also contacted Richard Butler, leader of a local Aryan Nations Church, and requested that Butler write a note to Randy Weaver asking Weaver to come down from the mountain and face the weapons charge.

[G.J.] [FN289]

Notwithstanding these efforts, Weaver still would not talk to Hofmeister, and Hofmeister eventually refused to visit Weaver unless he had an armed escort.[FN290] Weaver even said that he would not surrender to Hofmeister because "[his] rights will be violated."[FN291] Despite these clear indications that Weaver did not want Hofmeister's services, Howen adopted a rigid approach to the issue and considered Hofmeister to be Weaver's counsel until he was relieved by the court in September 1992 after Weaver's surrender. Furthermore, Howen never spoke with Hofmeister about the matter or explored whether Hofmeister would consent to the contact by the Marshals Service.[FN292]

Howen was apparently unwilling to explore alternatives that might have led to discussions with Weaver. For instance, he could have instructed the marshals to ask Hofmeister's permission to communicate directly with Weaver. This is not to say that additional exchanges would have been fruitful.[FN293] However, given the gravity of the situation, options that might have promoted a dialogue should not have been disregarded. Howen was aware of the difficulties the Marshals Service faced in capturing Weaver, but, in the face of this evidence, her remained hostile to the negotiation option. His rigid response to the Marshals Service's proposal was deceptively incomplete and effectively frustrated the Marshals Service's efforts.[FN294]

Finally, Howen's statement that some of the surrender terms proposed by Hunt and Evans were more appropriate for inclusion in a plea agreement appears disingenuous. There is no evidence that Howen ever discussed devising such an agreement with Weaver's attorney or with anyone else. Indeed, the evidence is to the contrary since Howen told this investigation that it was not his practice to engage in plea bargaining.[FN295]

(ii) Other Actions

In June 1991, U.S. Attorney Ellsworth discouraged Deputy Director Stagg of the Marshals Services SOG from apprising Judge Ryan of the considerable danger his team faced in arresting Weaver. In March 1992, Director Hudson asked Ellsworth to consider dismissing the warrant against Weaver and reissuing it under seal. Hudson explained that the marshals thought an assault on the Weaver residence would pose unacceptable risk of injury to the Weaver children and Marshals Service personnel. Ellsworth and Howen refused to discuss the indictment, citing Judge Ryan's call for the arrest of Weaver. When Hudson offered to speak to Judge Ryan, Ellsworth did not respond to the offer. We are troubled that the prosecutors so lightly dismissed the offer by the Director of the Marshals Service to speak with Judge Ryan. Indeed, we question their judgment in rebuffing the Director's personal effort to break the year-long impasse. Neither Ellsworth nor Howen advised Judge Ryan of the Marshals Service's concerns. Such inaction on their part was neither reasonable nor well considered under the circumstances.

d. Impact of Delay Pending Hudson Confirmation

The plan to apprehend Weaver was delayed for three months pending the confirmation of Henry Hudson as the Marshals Service Director. The reconnaissance team expressed frustration over the delay [FN296] because some believed the delay caused a gap in their surveillance intelligence.

However, the pending confirmation did not appear to be the only reason for the August reconnaissance mission. Indeed, Roderick and Cooper believed that additional surveillance was necessary to find locations for "cover" teams for the undercover operation.[FN297] The Executive Operational Plan also suggested that surveillance was necessary to place cover teams, an essential component of the undercover plan. Furthermore, Hudson told this inquiry that his approval of the undercover plan was "contingent on the results of the latest surveillance," which was the August 1991 trip to the mountain.[FN298]

Consequently, we conclude that the delay occasioned by Hudson's confirmation did not cause the need for additional surveillance but rather, at the most, altered the timing of surveillance that would have been necessary to conduct in any event.

4. Conclusion

The Marshals Service is required by statute to execute arrest warrants. Consequently, once a warrant was issued for Randy Weaver's arrest, the Marshals Service had no choice but to undertake efforts to apprehend Weaver. Faced with Weaver's repeated threats to violently resist arrest, the Marshals Service explored many alternative plans designed to capture Weaver, but to do so without harming Weaver, his family or the arresting officers. We believe that the Marshals Service acted properly and with due caution in pursuing this purpose. Moreover, we found no evidence that the Marshals Service was pressured by outside entities or was improperly motivated in its efforts. We find, however, that the court and the U.S. Attorney's Office did not appreciate the difficulties facing the Marshals Service, and made no effort to assist the Marshals Service in devising a peaceful solution to the problem.

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183 Memo from Ronald Evans to "Duke" Smith, March 18, 1991, at 1. Evans noted that "[d]uring limited occasions when the children have come into controlled contact with other children, they have advocated their parents' doctrine including preparation for the 'Final War' which will be fought on their mountain." Id. Frank Kumnick reported that he had heard Weaver speak of violent confrontations with law enforcement since 1984, that the Weavers had "ideas of martyrdom," and that the Weaver children were all trained in the use of firearms and would protect their father. Report of Investigation by Mays, October 16, 1991, at 2.

184 Testimony of Arthur Roderick, Preliminary Hearing, United States v. Weaver, No. MS-3934, September 10, 1992, at 11-13.

185 Kahl was head of a militant anti-tax group, Posse Comitatus. He was wanted for a probation violation when U.S. Marshals, along with local authorities, attempted to arrest him. A firefight erupted in which two marshals were killed and Kahl and his son were wounded. Kahl evaded arrest following the shooting, but was later killed in a confrontation with authorities. A local sheriff was also killed. "Radical Tax Protester's Legacy Lives," UPI, July 9, 1983; untitled article by Gordon Hanson, Associated Press, February 14, 1983; FD-302 Interview of Evans, October 21, 1993, at 4. Weaver and Kahl "share[d] similar commitment to principle . . . [and] raised their children in a similar fashion. . . ." Memo from Evans to Smith, March 18, 1991, at 1.

186 Evans suggested interrupting the Weavers' water supply. Aerial photography showed that "Weaver does not have a large storage ability for water inside the house . . . . At some point he must endeavor [to] locate the source of the disruption." Id. at 2.

On March 21, 1991, Hunt asked Sheriff Whittaker if the marshals could get a state court order to remove the children, but decided that such measures were not feasible and "guaranteed confrontation." Undated U.S. Marshals Service Summary of Chronology of Events. Hunt suspected that someone in the Sheriff's Department was leaking information about the Weaver case. Hunt Sworn Statement, at 8. The inquiry about the Weaver children may have gotten back to the Weavers. In April 1991, Randy and Vicki Weaver told Vicki's father, David Jordison, that they were afraid of being separated from the children by the government. Report of Investigation by Evans, April 24, 1991, at 3.@

187 FD-302 Interview of John Haynes, October 20, 1993; Memo from Ronald Evans to Duke Smith and Roger Arechiga, April 1, 1991.

188 Stagg characterized Evans' response as "a standard on which is used when one is trying to obtain SOG assistance on a priority basis." FD-302 Interview of Louis E. Stagg, October 21, 1993, at 2.

189 Haynes FD-302, October 20, 1993, at 2.

190 Report of Dr. Walter J. Stenning, May 13, 1991. Dr. Stenning appears to have relied on information already amassed and did not conduct an independent investigation.

191 SOG Special Assignment Log, (June 20, 1991 entry). The log details the daily activities during the trip, but is itself undated. No caves were discovered on the property following Randy Weaver's surrender in August 1992.

192 Id. The Congress was scheduled for July 13, 1991 at Hayden Lake, Idaho. Byerly had information that Weaver's first telephone call following his arrest on the weapons charge was to Richard Butler of the Aryan Nations.

193 In Summer 1992, Whittaker instructed his deputies to stay away from the Weaver property out of concern for their safety. FD- 302 Interview of Whittaker, November 20, 1993, at 4.

194 Marshal Service Activity Report, June 17-24, 1991 (June 21, 1991 entry).

195 Stagg FD-302, at 4-5. The SOG team discussed Evans' proposal for a clandestine operation to arrest Weaver, in which marshals would pose as prospective purchasers of real estate adjacent to the Weaver property. The SOG would arrest Weaver, if he left the house to show the property. Staff thought it would be impossible for SOG to provide the necessary cover in mountainous terrain. Notes of SOG meeting on June 17 & 18, 1991; Stagg FD-302, at 5.

196 Stagg told Ellsworth that if SOG were forced to carry out an assault and something went wrong, he would say that SOG's actions "were at the insistence of [U.S. Attorney] Ellsworth's office." Stagg FD-302, at 5.

197 Hunt Sworn Statement, at 10.

198 USMS/SOG "Law Enforcement Operations Order," June 25, 1991, at 6. The report recommended that no contact be made with any local law enforcement prior to commencement of an operation to apprehend Weaver. No reason was given. However, the marshals were concerned about the "loyalties" of members of the Sheriff's Department, though Sheriff Whittaker himself was not suspected. Hunt Sworn Statement, at 8. Whittaker told this investigation that he operated on a "need to know basis within his department with respect to information received from the marshals about the Weaver case. Whittaker FD-302, at 3.

199 Memo from Ronald Evans to Duke Smith and Tony Perez, September 25, 1991, at 2.

200 Id.

201 Report of Investigation, September 29, 1991. The report itself is not dated, but a Fax cover sheet identifies it as "report of September 29."

202 Report of Investigation, September 29, 1991, at 1, 4-5. Mays contacted a local hospital and OB-GYN practitioners, who agreed to notify them if they were contacted by Vicki Weaver. USMS Item Activity Report, October 9, 1991. Hunt later determined that Randy Weaver would deliver the baby. Report of Investigation by Hunt, October 22, 1991, at 1.

203 Willey told them that there were "guns everywhere you looked inside the [Weaver] cabin" and that the Weavers were sleeping in shifts and taking turns performing guard duty. Report of Investigation by Cluff, July 10, 1991, at 2.

204 Id. By letter, dated August 23, 1991, U.S. Marshal Michael L. Johnson asked Weaver to contact him to resolve the situation. The postmaster reported that someone picked the letter up on September 4, 1991. Memo from Susan M. Thompson to Dave Hunt, September 5, 1991.

205 The Torrences identified a photograph of Kevin Harris as the person they believed they heard Weaver call "Dennis." Report of Investigation by Mays, October 7, 1991; Transcript of Interview of Beverly and Ed Torrence, September 29, 1991, at 7, 22 (hereinafter cited as "Torrence Interview). 206 Torrence Interview, at 23.

207 Weaver also said that Terry Kinnison, Sam Strongblood Woholi, and others were conspiring to kill him so that Kinnison could take his property. Id. at 26. FD-302 Interview of Beverly Torrence, December 22, 1993.

208 USMS Item Activity Report, October 10, 12 & 13, 1991. Hunt learned from the FBI that Weaver had only limited involvement with the Aryan Nations. Report of Investigation by Hunt, October 8, 1991, at 1.

209 Various people were believed to be taking supplies to the Weavers, including the Griders, the Jeppesons, and Vicki Weaver's parents, the Jordisons. Report of Investigation by Hunt, October 10, 1991; Report by Mays, October 12, 1991; Torrence Interview, at 36. 210 This note was unsigned, but all correspondence (unless otherwise identified) was in Vicki Weaver's handwriting.

211 In an October 11, 1991 letter to her cousin, Ronald Jordison, Vicki Weaver wrote, "Race mixing is against the law." FD-302 Interview of Ronald Jordison, August 27, 1992.

212 Memo from Hunt to Evans, October 12, 1991, at 1; Report of Investigation by Mays, October 12, 1991, at 3.

213 Evans learned of this concern during a conversation with Vicki Weaver's father, David Jordison. Jordison told Evans that during a visit with the Weavers in early April, "Randy and Vicki voiced concern for becoming separated during the legal process and expressed commitment to remain together no matter what the Government did. This commitment was expressed to include the children." Report of investigation by Evans, April 24, 1991, at 3; Memo from Ronald Evans to Duke Smith, Tony Perez, John Haynes and Lou Stagg, May 7, 1991, at 2. In July 1991, Hofmeister sent a letter to the Weavers assuring them that the children would not be taken from Vicki, provided she did not use violence against anyone. Letter from Everett D. Hofmeister, to Mr. & Mrs. Randy Weaver, July 10, 1991, at 1.

214 Memo from Hunt to Evans, October 12, 1991. Jordison told Evans that Randy and Vicki believed that Randy had "signed a bond which would allow the Government to take his land and he therefore was not going to leave his property." Report of Investigation by Evans, April 24, 1991, at 2.

215 Magistrate Judge Ayers had explained to Weaver that he would forfeit the property bond only if he failed to appear for trial. Arraignment Transcript, January 18, 1991, at 10-11. Weaver's attorney, Hofmeister, also explained to Weaver that the bond would be forfeited only if Weaver failed to appear in court. Letter from Everett D. Hofmeister, Esq. to Mr. & Mrs. Randy Weaver, July 10, 1991, at 1.

216 Around this time, the marshals learned that Weaver believed that the highest authority in Northern Idaho was the county sheriff and that federal authorities had no jurisdiction over him. Report of Investigation by Mays, October 10, 1991, at 2 (Interview with Sam Strongblood Woholi).

217 Hunt Trial Testimony, May 5, 1993, at 2-9.

218 Letter from Howen to Evans and Hunt, October 17, 1992 (Appendix at 21).

219 Report of Investigation by Hunt, October 22, 1991, at 1-2. Hunt concluded that Weaver had apparently not set "booby traps."

220 Memo from Evans to Smith, March 18, 1991; FD-302 Interview of Michael Moriarty, November 18, 1993, at 3.

221 "Feds Have Fugitive 'Under Our Nose'," Spokesman Review (Spokane), March 1, 1992, at A1. On the same day, an article in the Chicago Tribune described Weaver as a "folk hero" holding the Marshals Service at bay. One week later, the story was picked up by the Associated Press, and articles appeared in the New York Times ("Marshals Know He's There But Leave Fugitive Alone," New York Times, March 13, 1992, at A14) and the San Francisco Chronicle ("U.S. Slow to Nab White Supremacist," San Francisco Chronicle, March 13, 1992). On March 27, 1992, the San Francisco Examiner reprinted the March 8, 1992 Chicago Tribune article ("Standoff With Police Enters Second Year, San Francisco Examiner, March 27, 1992).

222 Evans described the decision to drive to the Weaver property as spontaneous. He said they had no intention of making contact with the Weavers. Evans Trial Testimony, May 3, 1993, at 35.

223 Ruth Rau told Cluff and Evans that the dog had attacked a boy walking along a trail and that Randy Weaver had beaten the dog. Report of Investigation by Evans, March 6, 1992, at 3.

224 Id. at 1-2; Evans Trial Testimony, May 3, 1993, at 50-55.

225 Sworn Statement of William Hufnagel, at 1; FD-302 Interview of Henry Hudson, November 15, 1993, at 2.

226 FD-302 Interview of Michael Johnson, October 5, 1993, at 4.

227 Howen did not recall speaking with Hudson and said that he was not aware that Hudson had made such a request. Howen Interview, Tape 3, at 25. Hudson reported that Ellsworth deferred the majority of the speaking to Howen. Hudson FD-302, at 2.

228 Hudson FD-302, at 2-3.

229 Id. at 2.

230 Id. Hudson said that it was not unusual for Marshals Service Headquarters to assume jurisdiction over difficult cases.

231 Hufnagel Sworn Statement, at 2; Sworn Statement of Arthur Roderick (draft), at 5.

232 Executive Operational Plan (Phase I), March 27, 1992, at 1; Roderick Sworn Statement (draft), at 5-6; Hufnagel Sworn Statement, at 2.

233 Hufnagel Sworn Statement, at 2. The "Executive Operational Plan" (Phase I), said that Deputy Marshal Frank Norris would conduct a medical survey for the operational plan. Norris told this investigation that it was common for a medic to go on an operation in a remote mountain area. However, Deputy Marshal Ron Libby was sent on the mission instead of Norris. Sworn Statement of Frank Norris, at 2.

234 The marshals also noticed a marine band radio antenna on the Weaver cabin. They brought in a radio monitor to determine whether Weaver was communicating by short wave radio. Report of Investigation by Roderick, April 2, 1992; Roderick Sworn Statement (draft), at 7-11. The plan for Phase II contemplated jamming radio communications from or to the Weaver cabin during the arrest. Executive Operational Plan (Phase II), April 10, 1992, at 2 (hereinafter cited as "Phase II Plan"). Terry Kinnison told the Secret Service in 1985 that Weaver had military radio equipment and possibly a police scanner. See Kinnison FD-302, January 21, 1985 and February 5, 195.

During Phase I, Roderick and the other marshals looked into rumors that Weaver had worked for the Central Intelligence Agency while in Vietnam as a member of the Special Forces. They found these rumors to be false. Roderick Sworn Statement (draft), at 11.

235 Roderick Trial Testimony, May 10, 1993, at 243-44; Roderick Sworn Statement (draft), at 10. Roderick thought that foliage made it impossible for Harris to see them. He also thought it was possible that the flat tires may have been caused by something in the road he struck earlier. Id. at 10.

236 Daily Report, April 10, 1992.

237 The cameras, which operated on batteries, would provide "real-time" recordings of the Weaver residence and would run during the daylight. Phase II also contemplated the use of pen registers on the telephones of various Weaver associates. Phase II Plan, at 1; Report of Investigation by Roderick, April 4, 1992.

238 Six marshals were already on site: Hufnagel, Libby, Hunt, Mays, Roderick, and Lynda Nafsinger. Phase II Plan, at 7-8.

239 Phase II Plan, at 2.

240 A surveillance post was set up on the Rau property to monitor the video tapes. The post was manned 24 hours a day. Daily Report, April 20, 1992.

241 Hufnagel Sworn Statement, at 4.

242 During the first trip on April 27, 1992, the marshals reached the lower garden area below the Weaver compound. They had to leave, however, when their night vision equipment failed. Roderick Sworn Statement (draft), at 12. On the second trip on April 22, Roderick and Libby located a spot of the west ridge close enough to the compound to see and hear the Weavers talking with Buster Kittel. They also observed someone named Murphy bringing the Weavers supplies. Id. at 13; Report of Investigation by Hunt, April 22, 1992, at 1.

243 Roderick Sworn Statement (draft), at 14.

244 [G.J.]

245 Report of Investigation by Hunt, May 5, 1992; Hufnagel Sworn Statement, at 5; Roderick Sworn Statement (draft), at 14-15. Roderick had feared that something like this might occur and had warned Marshals Service Headquarters that they were sending the surveillance team into the area too often. Id. The charred remains of the camera equipment were found near the Weaver house after Weaver surrendered to authorities on August 31.

246 On April 14, a film crew told the marshals that they might fly over the Weaver property. Daily Report, April 14, 1992. An assistant to the producer of "Now It Can Be Told" said that a helicopter flew over the cabin on April 18. FD-302 Interview of Richard Weiss, September 11 & 18, 1992, but said in an August 1992 interview that no shots had been fired. However, a photographer in the helicopter saw someone gesture at the helicopter and thought he heard two shots on a boom microphone. FD-302 Interview of Dave Marlin, September 16, 1992. Weaver denied that anyone had shot at the helicopter. "Fugitive: No Surrender," Coeur D'Alene Press, May 3, 1992, at 1. Mays reported seeing a helicopter near the Weaver property, but did not hear any shots fired. Report of Investigation by Mays, April 18, 1992, at 1.

247 FD-302 Interview of Michael Weland, August 25, 1992, at 2; Daily Report, May 4, 1992.

248 "Fugitive: No Surrender," Coeur D'Alene Press, May 3, 1992, at 1.

249 Roderick Sworn Statement (draft), at 17; Hufnagel Sworn Statement, at 6; Executive Operational Plan (Draft), May 20, 1992.

250 Roderick Sworn Statement (draft), at 16.

251 Sworn Statement of Larry Cooper, March 7, 1994, at 5. FD- 302 Interview of Tony Perez, November 16, 1993, at 6.

252 Roderick Sworn Statement (draft), at 16; Hudson FD-302, at 3.

253 SOG would provide the cover teams because the Enforcement Division had limited manpower and SOG had the training and equipment for this kind of mission. Roderick Sworn Statement (draft), at 18.

254 Roderick Sworn Statement (draft), at 17; Hufnagel Sworn Statement, at 7. Executive Operational Plan, May 27, 1992, at 4.

255 Hunt had information that Weaver had contacts with law enforcement officers. Jurgensen, therefore, felt it necessary to create a detailed history for his assumed persona, including a citation for a moving violation under his assumed name. Sworn statement of Mark Jurgensen, at 7.

Roderick believed that a member of SOG should participate in the undercover operation and, therefore, asked Deputy Marshal Larry Cooper if he would be willing to take part in assessing the undercover operation. Roderick Sworn Statement (draft), at 18. Cooper had recently left the Special Operations Group, and he and Roderick had known each other for many years. Cooper Sworn Statement, at 2-3.

256 Roderick Sworn Statement (draft), at 18. Hudson had decided that the plan would not go forward until he had been confirmed. Hudson FD-302, at 4. This decision does not appear to have been based on operational concerns.

257 Roderick reported that he was in Washington, D.C. with Tony Perez and ran into the Director. Hudson told Roderick "let's go get 'em." Roderick Sworn Statement (draft), at 18. On August 13, 1992, Perez sent Duke Smith a handwritten note: "We're ready to go as of Monday, August 17, 1992."

258 Roderick Sworn Statement (draft), at 18; Jurgensen Sworn Statement, at 8-9.

259 Hudson FD-302, at 3. Roderick told this investigation "I did not believe it was appropriate nor part of my job to pass judgment on the merits of the [underlying] case." Roderick Sworn Statement (draft), at 5. We find this assessment consistent with the statutory duties assigned to the Marshal Service. See 28 U.S.C.  566(a) ("It is the primary role and mission of the United States Marshals Service to . . . obey, execute, and enforce all orders of the United States District Courts . . . .") and  566(c) ("[T]he United States Marshals Service shall execute all lawful writs, process and orders issued under the authority of the United States . . . ."). Hudson and his subordinates asked Ellsworth and Howen about the strength of the charges against Weaver and were told that the case was good. Hudson FD-302, at 3.

260 Sheriff Bruce Whittaker seemed to prefer this option. He was quoted as saying, "It's just as bad for [Weaver] sitting up there on that mountain as if he was sitting in prison somewhere. . . . He's on his own self-imposed house-arrest up there, and it isn't costing anybody any money." "Feds Have Fugitive 'Under Our Nose'" Spokesman Review (Spokane), March 1, 1992, at A1.

261 See Perez FD0392, at 5. See also Note 315, infra.

262 We note that the Idaho District referred the case to the marshals, in part, because it did not have the financial resources or manpower to carry out the operation. See Hunt Sworn Statement, at 13.

We have asked the FBI to determine how much the Marshals Service spent on the Weaver case, but have not yet received the calculation.

263 See Report of Dr. Walter J. Stenning, May 13, 1991.

264 Roderick Sworn Statement (draft), at 16-17; Hudson FD-302, at 3; Cooper Sworn Statement, at 5. See FD-302 Interview of Tony Perez, November 16, 1993, at 6-7.

265 Hunt Sworn Statement, at 2, 6; Mays FD-302, October 5, 1993, at 2, 4.

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

267 Report of Investigation by Mays, October 16, 1991, at 2.

168 A reporter for a local newspaper had told Cluff that Randy Weaver and his wife and children were "waiting at the. cabin, and are prepared to make a final stand." Report of Investigation by Evans, February 28, 1991, at 1.

269 Roderick Sworn Statement (draft), at 11.

270 Letter to the "Servants of the Queen of Babylon," March 5, 1991; Report of Investigation by Hunt, March 6, 1991.

271 Kahl evaded arrest and was killed in a second confrontation. A local sheriff was also killed in that conflict. "Radical Tax Protester's Legacy Lives," UPI, July 9, 1983; Untitled article by Gordon Hanson, Associated Press, February 14, 1983.

272 Memo from Evans to Smith, March 18, 1991, at 1. Evans FD- 302, October 21, 1993, at 4. As a result of the Kahl case, the Marshals Service approached investigations of armed individuals motivated by strong personal belief "in a much more methodical and deliberate manner." In such cases, "[n]othing could be taken for granted," and the marshals would not go "charging in" to make an arrest. Perez FD-302, at 2.

273 Memo by Evans to Perez, March 12, 1991, at 2.

274 FD-302 Interview of Michael Johnson, October 5, 1993, at 4; Hudson fd-302, at 2-3. The marshals also considered other "non- tactical" solutions, such as interrupting water and power supplies to the cabin and abducting Vicki or Sara Weaver, while they were in the "birthing shed" during their menstrual cycles. Cooper Sworn Statement, at 2-3. Executive Operational Plan (Draft), May 20, 1992, at 4.

275 USMS Item Activity Report, October 10, 12, & 13, 1991.

276 Evans proposed a comparable plan in June 1991, in which two undercover marshals would pose as prospective purchasers of real estate adjacent to the Weaver property. Notes of SOG meeting on June 17 & 18, 1991; Stagg FD-302, October 21, 1993, at 5. SOG concluded that it would be impossible to provide adequate cover in the mountainous terrain. Id.

277 FD-302 Interview of Honorable Harold Ryan, November 9, 1993, at 1, 2.

278 Id. at 2-4. Marshal Johnson said that, during the week of March 11, 1001, Judge Ryan reminded [Johnson and Evans] of the need to arrest Weaver and get him into his courtroom." Johnson FD-302, October 5, 1993, at 3.

Ellsworth and Howen denied requests from the Special Operations Group and Director Hudson to dismiss the Weaver indictment for failure to appear, purportedly because Judge Ryan wanted Weaver arrested. Ellsworth and Howen also rebuked offers by SOG and Hudson to meet with Judge Ryan to explain why they thought it advisable to dismiss. Judge Ryan told this investigation that he was never contacted about this matter. The only conversations he had about Weaver were informal talks with Evans. Ryan FD-302, at 6.

279 Hunt Sworn Statement, at 13; Evans FD-302, at 2.

280 Report of Investigation by Hunt, October 22, 1991, at 2. Evans was also concerned that Weaver was attempting to gain support in the community by having supporters circulate copies of Richins' letter. Memo from Evans to Perez, February 27, 1991, at 2.

281 One week later, the story was picked up by the Associated Press and articles appeared in the New York Times (March 12, 1992) and the San Francisco Chronicle (March 13, 1992). On March 27, 1992, the San Francisco Examiner ran the Chicago Tribune article.

282 Evans FD-302, at 3.

283 Director Hudson claims that media attention "did not change the pace of the investigation, but sharpened the concern of the community." Hudson FD-302, at 2.

284 This limitation includes communications made through third parties. See ABA Model Rule 8.4(1).

285 The Department of Justice has historically authorized limited contacts to determine whether a person believes counsel is representing his or her interests. See Memorandum from Attorney General Dick Thornburgh, "Communication with Persons Represented By Counsel", June 9, 1989.

286 Hearing Transcript, February 20, 1991, at 2-6; Ryan FD- 302, at 1. Hofmeister had sent four letters to Weaver's post office box advising him of the February 20 trial date and requesting a meeting. Hofmeister did not receive a reply and the letters were not returned. Hearing Transcript, at 2-6. Report of Investigation by Cluff, March 5, 1991.

287 Letter from Everett Hofmeister, Esq. to Mr. & Mrs. Randy Weaver, July 10, 1991, at 2. This letter was found in the Weaver cabin, with notations, during a search in September 1992.

288 See Report of Investigation by Hunt, September 5, 1992.

289 [G.J.] ; see Report of Investigation by Evans, July 10, 1991, at 1-2.

290 Report of Investigation by Hunt, October 22, 1991, at 5. There is no indication Hunt communicated this opinion to Howen.

291 Report of Investigation by Cluff, July 10, 1991.

292 Howen Interview, Tape 4, at 18-21.

293 On March 27, 1992, U.S. Marshal Johnson telephoned Alan Jeppeson and, in apparent disregard of Howen's order, asked Jeppeson to ask Weaver for conditions under which he would surrender. Jeppeson told Johnson that Weaver's response was "stay off his mountain." Report of Johnson, April 1, 1992.

294 To Johnson, it seemed that "every time [the marshals] attempted to take any type of action, they experienced a conflict with the United States Attorney." Johnson FD-302, August 17, 1993, at 2.

295 Howen Interview, Tape 2, at 2.

296 Roderick Sworn Statement (draft), at 15, 20.

297 Id. at 23; Cooper Sworn Statement, at 6.

298 Hudson FD-302, at 4.

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