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D. Marshals Service Activities Between August 17 and August 21, 1992

1. Introduction

The defendants' attorneys alleged in pretrial motions that the marshals went to the Weaver property on August 21, 1992 to engage the Weavers and to force a violent confrontation.299] Counsel pointed to several facts, which, they alleged, proved that the marshals intended "something quite in excess of a mere 'reconnaissance mission.'" These alleged suspicious facts included bringing a "suppressed" rifle on the mission and spending "several hours sighting their guns" before the August 21 incident.[FN300] Counsel also suggested that the marshals initiated the exchange of gunfire on August 21 and that they deliberately killed Sammy Weaver. Finally, there have been allegations that the marshals exaggerated the amount of fire they received at the "Y," that they tried to cover up the death of Sammy Weaver, and that they delayed interviews with the FBI to enable them to coordinate their accounts of the shootings.

2. Statement of Facts

a. Preparation for Surveillance

In August 1992, Roderick and Hufnagel assembled the team which would conduct the surveillance necessary before the undercover plan could be placed in effect. This surveillance team was comprised of Roderick, Cooper, and Deputy Marshals Thomas, Norris, and Hunt. [FN301] In addition, Duke Smith contacted SOG Commander John Haynes and requested that an SOG member participate in the surveillance preceding the undercover operation.[FN302] Haynes selected Bill Degan, Commander of the Northeast Task Force in Boston and a close friend of Roderick and Cooper, to be the SOG representative on the team.[FN303] Haynes instructed Degan that the purpose of the mission was simply to gather intelligence.[FN304]

As detailed in the Executive Operational Plan, the objective of the visit was to determine what cover was necessary for the undercover operation and to update previous surveillance information. It was expected that the surveillance would take approximately two weeks.[FN305] There was no plan to arrest Weaver during these excursions.[FN306]

On August 17, 1992, Degan, Cooper, Roderick, Norris, Thomas, and Hunt arrived in Spokane, Washington.[FN307] Thereafter, the team drove to Sandpoint, Idaho, to set up a command post at the condominium on Schweitzer Mountain that Roderick's team had used in April. Roderick briefed the team on Wednesday evening, August 19. At that time, he repeated the standing orders from Marshals Service Headquarters that they were to avoid contact with the Weavers, particularly the children.[FN308] In preparation for their mission, the marshals discussed the terrain, the people believed to be on the mountain, and the weapons the Weavers were known to have.[FN309] They also reviewed surveillance videos, photographs, and other information.[FN310] Before the meeting ended, Degan inventoried each marshal's ammunition.[FN311]

Roderick expressed concern that the longstanding feud between the Weavers and the Raus might be building toward a confrontation. [FN312] Sheriff's deputies had told that Raus that they would not go to the Weaver cabin out of fear for their own safety. [FN313] For this reason and others, the Raus were becoming increasingly frustrated, and there was concern that Wayne Rau's father might try to take the law into his own hands.[FN314]

Roderick decided that the team would survey the Weaver property on Friday, August 21. Although he was still troubled about returning to the area too many times, he thought that Cooper, Degan, Norris and Thomas needed to become acquainted with the property. Of the group, only Roderick and Hunt had been to the Weaver property previously. The decision to conduct the surveillance on Friday was based in part on information which indicated favorable night illumination and weather conditions on that day.[FN315]

In preparation for the mission, the marshals had acquired three .223 caliber M16 rifles from the Spokane office. Roderick believed that additional weapons were needed and mentioned the shortage to Degan, who had access to additional weapons from a SOG training display in Boston. Roderick told Degan to bring some of the rifles and other equipment with him.[FN316] Thereafter, Degan shipped a .223 caliber M16A2 Colt Carbine, a "sniper" rifle, a shotgun, and a "suppressed" .9mm Nato Colt Carbine from a display to Spokane. In addition, the team members brought their personal service weapons.[FN317]

b. Trip of August 21, 1992 to Weaver Property

At approximately 2:30 a.m. on August 21, 1992, the team left the condominium at Schweitzer Mountain in a van and a four wheel drive Jeep and drove to the residence of Boundary County Sheriff Bruce Whittaker where they left the van. They then drove the Jeep to the Rau residence where they arrived at approximately 4:30 a.m. and parked the Jeep by the guest cabin.

The plan was for the marshals to move under cover of darkness to surveillance positions and then to leave after a few hours of surveillance. They did not intend to complete the day's mission before day break.[FN318] Each marshal was equipped with radios and night vision equipment and wore camouflage tops, pants, and boots. None wore bullet-proof vests, though they were available.[FN319] Degan carried one of the SOG M16s; Thomas and Norris each had rifles; Roderick had an M16; and Cooper had the "suppressed" .9mm.[FN320] Hunt was carrying camera equipment, so he elected to take only his service weapon. They did not bring the sniper rifle Degan had shipped from Boston.[FN321]

The marshals left their Jeep and walked up a trail which led from the Rau house to an area known as the "Y". At that location, the group split into two three-man teams. The first team, the Observation Post ("OP") team, was comprised of Hunt, Thomas, and Norris; the second team, the Reconnaissance ("Recon") team, was comprised of Roderick, Cooper, and Degan.

The OP team left the Y and took the left fork of the trail through a canopy of trees and a fern field. They then turned right and proceeded up the hill to the north switchback road which led to the observation post, which had been located during one of the Phase II surveillance trips. The observation post was approximately 900 feet in elevation above, and one half to three quarters of a mile from the Weaver compound, and was located at a spot on the north ridge referred to as the "white pine tree."[FN322]

While the OP team was on its way up the mountain, Roderick led Degan and Cooper up the trail from the Y toward the Weaver compound. The team stopped at the edge of a cover of trees about 250 to 300 yards from the entrance to the Weaver driveway. From there. Roderick pointed out the rock outcropping where the Weavers responded to vehicles and other noises.[FN323] Roderick wanted Degan and Cooper to see this area because the undercover marshal would have to drive there when approaching the Weaver compound. It was still dark when Cooper heard one of the dogs bark.[FN324] The Recon team returned to the Y as it was starting to become light.

By now the OP team had reached the observation post.[FN325] The OP team was equipped with a spotting scope, a still camera and an 8mm video camera. Once in position, the OP team was to watch the Weaver compound while Roderick, Cooper, and Degan scouted the area. The two teams maintained contact by radio using fire crew code words in case Weaver could intercept their transmissions.[FN326]

Soon after its arrival, the OP team began to observe activity in the compound. They saw Sammy Weaver and Kevin Harris conduct a security check around the house. During the early morning hours the dogs barked periodically which did not strike Hunt as unusual.[FN327] At one point, Hunt saw Randy Weaver come out of the house and yell at the dogs to "shut up."[FN328] Hunt told Thomas that the dogs' barking and the Weavers' response was normal and that the activity in the compound appeared to be in accord with previous surveillance.[FN329] The OP team reported these sightings to Roderick, Cooper and Degan who stopped moving when there was activity in the Weaver compound.[FN330]

Thereafter, Roderick Cooper, and Degan went to join the other marshals at the observation post. However, they became lost and had to radio Hunt for directions. When the Recon team arrived at the observation post at approximately 9:00 a.m., both teams discussed their observations. The OP team reported that members of the Weaver family had run to the outcropping several times in reaction to the dogs' barking. On each occasion, the persons running to the outcropping varied, but usually Harris and Sammy Weaver were among them. Norris stated that, using the spotting scope, he had seen Harris with a long gun, Sammy with a side arm and a long gun, Randy with a long gun, and Sara with a side arm in a holster.[FN331]

The Recon team stayed at the observation post briefly and watched the Weaver family with binoculars and spotter scopes. They discussed different approaches to the property and the layout of the compound, including the various outbuildings and their possible purposes.

Roderick wanted to show Cooper and Degan a spot he had identified in April as a good location for a "counter-sniper" for the undercover operation.[FN332] They found a position near a birch stand on a large rock embedded in a hill some 200 to 250 yards from the Weavers' cabin.[FN333] Roderick and Cooper then left Degan and crawled down to another rock approximately fifty yards below the first rock.[FN334] This point lined up with the base of the Weaver driveway, approximately 100 to 150 yards away. Roderick and Cooper observed family members take up positions at the rock outcropping whenever the dogs barked.[FN335] They also observed their movement back and forth between the outhouse, the cabin, and other outbuildings.

It was at this time that Roderick decided to toss some rocks to see how the sound would carry and to see if the dogs would react.[FN336] He asked the OP team to observe the results.[FN337] Roderick then threw the first rock. Roderick, Cooper, and Degan did not hear the first rock hit, and the OP team reported that there was no reaction from the people who were insider the cabin or the dogs in the Weaver compound. Roderick threw a second rock and again no response occurred from the Weaver compound.[FN338]

Approximately fifteen minutes later, Roderick and Cooper rejoined Degan, and the three backtracked to the "switchback" road. They had spent roughly a half hour at the birch stand observation point. Roderick decided to show Cooper and Degan the garden/spring house area below the house. At that time, they were still looking for places to station cover teams for the undercover operation. [FN339] Cooper was concerned about being too close to the house in the daylight, but Roderick said that surveillance teams had been closer on prior missions without being detected.[FN340] Roderick also was hoping to limit their trips to the mountain to two instead of the planned four, so it was necessary to accomplish as much as possible during this outing.[FN341] They agreed the previous night that they would immediately leave the area if the dogs alerted.[FN342]

Before proceeding to the garden/spring house area, Roderick informed the OP team of his intention and asked that he be advised of any movement in the compound as they were heading into the "hot" area, which was the marshal's code for the land immediately surrounding the Weaver compound.[FN343] Thomas advised Roderick that "they had total containment," that is, the Weavers were in the house.[FN344]

After receiving this information, Roderick moved forward slowly, followed by Cooper and Degan. He indicated to Cooper and Degan several possible cover team positions. As they were getting ready to leave the spring house area, Thomas radioed that the Weavers were "responding" to an approaching vehicle. None of the other marshals heard a vehicle.[FN345] The dogs began to bark, and people started to run out of the cabin.[FN346] Randy Weaver exited first, followed by Kevin Harris, Sammy Weaver, Sara Weaver, and Rachel Weaver. Vicki Weaver remained in the compound area. Thomas told Roderick that they were carrying "equipment," meaning that they had firearms.[FN347]

Roderick expected that the Weavers would assume their normal defensive positions. He Instructed Cooper and Degan to take cover.[FN348] Roderick also took cover and radioed the observation post for further information.[FN349] Hunt radioed Roderick and informed him that this appeared to be "a typical vehicle response" by the Weavers.[FN350] However, his assessment soon changed.

Rather than taking their normal defensive positions at the outcropping, the Weavers jogged down the driveway. Hunt warned Roderick, "You've got them all coming down the drive."[FN351] Roderick then saw a large labrador retriever running toward his position, followed by Kevin Harris, carrying a rifle.[FN352]

Randy Weaver dictated this account of these events to his daughter, Sara, on August 26, 1992:

Approximately 11:30 Friday morning....the dogs started barking like they always do when strangers walk up the driveway. Randy, Kevin, and Sam ran out to the rock with their weapons. Randy was carrying a double barrel 12 gauge shotgun. Kevin was carrying a 30-06 bolt action rifle. Sam was carrying a 223 mini 14. [FN353] When they got to the rock, our yellow dog Striker was down at the pumphouse barking up into the woods. Randy, Kevin and Sam went down to investigate. Sam said he heard something, or someone running west, so they followed. Sam and Kevin followed Striker. Randy dropped down on the old logging road headed west.

I (Randy Weaver) didn't have any idea what they were chasing, but I was hoping it was a deer. [FN354]

Kevin Harris claimed that, from the intensity of the dog's reaction, he thought that there was "a large animal or a person" in the vicinity.[FN355] Vicki Weaver wrote in her journal on August 21, 1992:

Randy, Kevin and Sam go down past the pump house to see what's bothering the dog. He apparently made the servant of the New World Order retreat down Farnworth Road. They followed the dog part way down.[FN356]

Roderick told Cooper and Degan that a dog and a man with a rifle were running toward them and that they had to move out.[FN357] The OP team heard Roderick say, "Pull back!" and, "the dogs are on us."[FN358] Roderick took the lead as the marshals fled through the woods. The area was thickly forested, and the marshals made a great deal of noise as they ran.[FN359] As they fled down the mountain, the marshals stopped several times to determine whether they were being pursued and saw that they were.

During the retreat, Roderick said that the dog might have to be killed because it had picked up their scent.[FN360] Roderick noted that each time he and the others turned to look, the dog and Harris were closer to them. As they ran through the woods, Roderick continued asking the OP team who was coming and what weapons they had.[FN361] The OP team radioed that "the assignment fire chief," the code name assigned to Vicki Weaver, was walking leisurely around the compound.[FN362]

Hunt, Norris and Thomas remained at the observation post above the Weaver property during the pursuit. After Randy Weaver, Sammy Weaver, Sara Weaver, and Harris ran down the drive, Thomas observed Rachel Weaver hurry into the cabin and exit with a "mini 14" rifle.[FN363]

Roderick was still leading Cooper and Degan when they broke from the woods into the fern field. Roderick chose the fern field because it provided the quickest retreat and allowed them to move with the least noise. At that time, he thought that they could still escape.[FN364] They ran through the fern field and under the tree canopy. Roderick was farthest from Harris and the dog, with Degan ten yards behind and Cooper another ten yards behind Degan. As Roderick turned to look back, he saw the dog, Harris, and, for the first time in the pursuit, Sammy Weaver.[FN365] Cooper thought that he might have to shoot the dog and stayed behind Roderick and Degan in case that became necessary.[FN366]

Cooper did not see Harris until after he was through the fern field and into the canopy of trees leading to the Y. He told the others that it was "bullshit" for them to continue running and that he did not want to "run down the trail and get shot in the back." He urged them to take up defensive positions.[FN367] The others agreed. Roderick cleared the canopy first and entered the Y. Degan arrived at the end of the canopy and took a position behind a stump approximately three to four feet off the right of the trail.[FN368]

C. Shooting at the Y

There is a significant difference between the account of the events at the Y given by the marshals and the account provided by Randy Weaver and Kevin Harris.[FN369] All agree that Harris shot and killed Deputy Marshal Degan and that Deputy Marshal Roderick shot and killed the dog. Although the marshals did not realize until several days later that Sammy Weaver had been shot during the encounter, they agree now that he was wounded in the arm and fatally shot in the back during the exchange of gunfire. However, the sequence of these events, and, in particular, the timing of Sammy Weaver's death, remains contested, as does the identity of the person who shot Sammy Weaver. The events comprising the shootout at the Y occurred very quickly, and the participants' perspectives often blended together and occasionally were in conflict. Thus, the following narrative represents our best effort to present the most accurate chronology of the events that occurred at the Y based on the information provided to us during our investigation.

(1) Account of Cooper and Roderick

When Cooper reached the "water bar" at the entrance to the Y, he saw Randy Weaver through the brush approximately 40 feet away coming down the other trail from the Weaver compound. They looked at each other, and Cooper thought Weaver seemed shocked to see him. At the time, Cooper assumed that Roderick and Degan were covering Weaver and he turned his attention to Harris and the dog, which were still behind him. He yelled at Harris, "Back off, U.S. Marshals," believing that they had been set up for an ambush.[FN370]

The dog caught up to Cooper, and he held it at bay with his gun. The dog made a 360-degree turn around Cooper, growling and snarling.[FN371] Cooper decided not to shoot the dog, fearing that if he did so in plain view of Harris, it would precipitate a gunfight, with both Cooper and Degan fully exposed. After circling Cooper, the dog ran past him and headed towards Roderick. Cooper left the trail and dove behind a rock located about fifteen feet behind Degan and to his right. Cooper did not see Randy Weaver again.[FN372]

Roderick, who was further into the Y, also saw Randy Weaver on the trail leading up to the cabin. Weaver was wearing a camouflage jacket and screamed something unintelligible at Roderick. Roderick yelled, "Stop! U.S. Marshal" at Weaver. Roderick could not tell if Weaver continued up the trail or went into the woods.[FN373]

Cooper radioed Degan to join him at the "fox hole," but Degan did not respond. He saw that Harris and Sammy were walking directly in front of Degan. Cooper observed Degan squatting on the balls of his feet behind a stump and facing up the trail. Once Harris and Sammy were into the clearing of the Y, six to ten feet past Degan's position, Cooper thought they had escaped detection. Unexpectedly, Degan went up on his left knee, with his weapon on his shoulder and pointed at Harris and Sammy Weaver, and said, "Stop! U.S. Marshal." Cooper, almost simultaneously joined Degan in saying "U.S. Marshal." However, before Cooper finished the command, Kevin Harris, who had his back to Degan, wheeled around and fired at Degan with a 30.06 rifle. Harris was holding the rifle waist-high when he fired.[FN374] Cooper saw Degan's arm go back as he started to fall. Harris then began to bring his weapon to his shoulder as if he were going to fire again. Cooper, realizing that Degan had been hit, fired a three-round burst at Harris with the "suppressed" .9mm. According to Cooper, Harris dropped to the ground "like a sack of potatoes." Cooper was convinced that he had hit Harris. Cooper then wheeled his weapon toward Sammy. He could not see whether Sammy had a gun because a tree blocked his view of Sammy's hands. He did not shoot at Sammy because Sammy had not fired at Degan and he did not see Sammy's weapon. Cooper did not think Degan had returned any fire.[FN375]

Meanwhile, Roderick had moved south down the path. He heard a shot from his left, from the direction he had last seen Cooper, Degan, Harris, and Sammy. Roderick could not determine who had fired the shot or whether it came from a .223 or 30.06 rifle, although he thought it sounded like a heavy caliber weapon.[FN376] Other than the dog, which was heading toward the path where Randy Weaver had appeared moments earlier, Roderick could not see anyone. When the first shot was fired, the dog stopped and turned its head back toward the marshals. Concerned that the dog would attack or lead Weaver, Harris, and the others toward the marshals if they kept running, Roderick fired once at the dog with his M16 rifle, striking the dog near the base of the spine.[FN377]

After he shot the dog, Roderick saw Sammy Weaver enter the Y and run up the trail, away from Roderick and toward where Randy Weaver had disappeared. Sammy called Roderick, "a son of a bitch" and shot two rounds at him from a mini-14 rifle. Roderick dove into the woods off the south side of the trail and took cover behind a tree. He received "constant" fire at that position from weapons that sounded like a shotgun, a handgun, and a rifle.[FN378]

During this same period, Cooper heard two shots to his right and Sammy Weaver yelling "You son of a bitch." He then began taking fire and heard Degan call "Coop, I need you." Cooper told Degan that he would be there "as soon as I can get 'em off our ass."[FN379] Cooper rose and fired a second, three-round burst in the direction from which he had last received fire in order to provide cover fire for himself as he tried to get to Degan.[FN380] Following these last shots, Cooper saw Sammy run out of view up the trail to the cabin. Cooper did not think that his shots had hit Sammy Weaver.[FN381]

When the fire shifted toward Roderick, it allowed Cooper to move to Degan's position.[FN382] Degan had been hit once in the chest.[FN383] He was lying on his left side, his arm in the rifle sling, making a gurgling noise. He was conscious, but unable to assist Cooper in moving to a protected position. Within a few moments, Degan lost consciousness and died. Cooper took Degan's weapon and changed the setting from semi-automatic to safety. He did not fire Degan's weapon. Cooper returned to his position behind the rock.[FN384] He radioed to Roderick that Degan had been hit and needed help.

(2) The OP Team

Norris, Thomas, and Hunt were at the observation post overlooking the Weaver property, while Roderick, Cooper, and Degan were being chased through the woods. Norris heard the announcement, "U.S. Marshal" and then a single shot. Two quick shots followed from, Norris believed, a .223 caliber weapon and then he heard a series of discharges.[FN385]

Thomas also heard a single shot, which he described as a "heavy caliber." Thomas contrasted the fist shot to subsequent fire, which he characterized as "lighter." Hunt told Thomas that he also thought the first shot sounded like a heavy caliber weapon. Thomas glanced at his watch when he heard the first shot and it was approximately 10:30 a.m.[FN386]

Hunt could not determine the caliber of the weapon fired, but said that the first shot sounded like a "long run." Hunt heard a single gunshot, followed by two gunshots, then four gunshots. He did not hear any shotgun blasts during the entire incident.[FN387]

Hunt, Norris and Thomas then left the observation post to assist the other marshals. They ran to the Y after hearing the shots, they heard yelling from the Weaver property. When Hunt, Norris, and Thomas approached the fern field and turned left into the tree canopy, they received a volley of gun fire from their left side. This gunfire, described as being from different caliber weapons, went over their heads. Hunt pointed his service weapon in the direction of the fire, searching for a target to return the fire. Seeing none, he did not fire. It is not known who fired at Hunt, Norris, and Thomas.[FN388]

(3) Account of Weaver and Harris

Randy Weaver's account of the incident comes from a statement he dictated to his daughter, Sara, on August 26, 1992:

When I reached the first fork in the logging road, a very well camouflaged person yelled 'freeze RANDY,' and I immediately said 'fuck you,' and retreated toward home 80-100 feet. I realized [sic] immediately [sic] that we had run smack into a ZOG/NEW WORLD ORDER ambush. I stopped to see if I was being followed.

About that time I heard a gun shot and Striker [the dog] yelped. Then I heard two more shots and Striker stopped yelping. I started yelling for Sam and Kevin to return home, and that they (THE FEDS) had shot Striker. I also fired my shotgun once into the air to draw attention to myself praying that would help. I replaced the empty shell with a new one....jamming the shotgun. I drew my .9mm handgun and fired 3-4 rounds up into the air and I yelled again for Sam to return home. Sam responded 'I'm coming DAD!' I then walked backwards up the hill toward home yelling to Sam and Kevin to come home. All the while I heard many shots ringing out from the direction of the ambush.[FN389]

In the August 26 letter, Sara Weaver quotes Harris:

Me (Kevin Harris) and Sam followed Striker through the woods until we came out on the road that forks off the one Randy was on . . .Striker reached the corner first, then Sam, and then me. A camouflaged [sic] person was in the road and he shot Striker. Sam yelled 'You shot Striker, you sonafabitch!' And they pointed a gun at Sam. Sam opened [sic] fire. I took cover behind a stump and Sam headed up the road toward home. it appeared [sic] as though Sam had been wounded in the right arm . . . . THE men were still shooting at Sam, so I shot one of the sons of bitches. After they killed Sam one of the FEDs jumped out of the woods and for the first time declared he was a federal marshal. The FEDs then grabbed their wounded and left. I then headed home up the road and spotted Sam's body laying in the road without a doubt shot in the back.[FN390]

In a statement to the FBI on September 1, 1992, Harris added that he raised his rifle to fire when he fired at Degan, who Harris said was approximately 20 feet away in the brush. Harris then heard Degan call out that he had been hit. When Harris fired, Sammy Weaver had already begun running up the trail. Harris claimed that after he fired the shots at Degan the shooting came to a halt for a few seconds before he heard another shot. Sammy "yelped," then was silent. Harris said he fired one more shot in front of a camouflaged man who had reappeared out of the brush "to scare him." Harris stayed behind the stump "approximately ten more minutes," when he heard "the sound of a vehicle down the hill." He then retreated to the Weaver house. Approximately 15 minutes later, Randy and Vicki Weaver, along with Harris, retrieved the body of Sammy Weaver and placed it in the birthing shed.[FN391]

On the morning of August 21, Ruth Rau was outside her house, loading laundry into her car. At approximately 10:30 a.m., she heard a series of gunshots in rapid succession, coming from the direction of the Y. Rau estimated that a total of 50 rounds were fired, with the initial burst of gunfire lasting approximately two minutes. She heard additional gunshots at approximately 11:15 a.m.[FN392]

d. Events Following the Gunfire

Roderick hearing Cooper's call for help, radioed the OP team to send Norris, the medic, to the Y. Roderick was unable to see Cooper or Degan but assumed that they were on the trail above him. After requesting assistance, he dove back out onto the trail in a prone position to assess the situation. As he looked for Cooper or Degan, he heard a rifle shot from his right front side and then felt something pass across his stomach. Roderick heard more shots and ran back into the woods for cover, where he received additional fire. After examining himself, Roderick discovered a bullet hole in his shirt but he was not injured.

Shortly thereafter, Roderick heard movement off to his right in the woods across the road. Cooper told Roderick to toss stones so that Cooper could determine where Roderick was and direct him to Cooper's location. Roderick moved through the thicket toward Cooper and radioed their position to Hunt. Both men heard sporadic gunfire from the direction of the Weaver compound and the fern field.[FN393]

Meanwhile, Hunt, Norris and Thomas arrived at the Y.As he emerged from the canopy trail, Hunt had his handgun drawn while Norris, the medic, placed his weapon on the ground and attempted to resuscitate Degan. Hunt picked up Norris' rifle laying on the ground and looked across the trail up toward Weaver's cabin, but saw no one. Norris worked on Degan for a short time before announcing that he was dead.[FN394] Cooper told Hunt and Norris that Harris had shot Degan and that he believed that he had hit Harris.[FN395] The marshals whispered because noise would bring gunfire in response.[FN396] They fired no additional shots at the Y.

Shortly thereafter, there was a tremendous discharge of gunshots on the trail to the Weaver house, followed by the sound of male and female voices wailing. The marshals also heard cursing; a woman shout, "Yahweh;" a man yell, "you son of a bitch," and others scream, "You tried to kill my daddy."[FN397] At the time the marshals did not know that Sammy Weaver had been shot in the confrontation.

Roderick, Cooper, and Norris waited in the brush with Degan's body while Hunt and Norris left for help. Four to five hours later, they heard an aircraft overhead and some gunfire. [FN398] Whether conditions deteriorated as the day progressed, and it started to rain.[FN399] Cooper and Roderick, who decided not to leave without Degan's body, made several attempts to move Degan, but could not.[FN400] Roderick maintained radio contact with Hunt and told him that every time the marshals made a noise, the Weavers responded with heavy gunfire.[FN401]

3. Discussion

a. Alleged Intent of the Marshals to Force a Confrontation with the Weavers

This investigation has revealed no evidence that the marshals went to the Weaver property on August 21, 1992 intending to use deadly force against Randy Weaver or his family. indeed, the evidence indicates quite the contrary. Months of planning went into formulating the undercover plan, and Director Hudson had explicitly rejected any strategy that might harm Vicki Weaver or her children. We find absolutely no support for the suggestion that Roderick deliberately ignored Hudson's direct orders not to engage the Weavers.[FN402]

(1) The .9mm Weapon

Defense counsel questioned the marshals' selection of firearms, particularly the .9mm "suppressed" semi-automatic weapon, and implied that the weapon was brought on the mission expressly to shoot the Weaver dog.[FN403]

At the outset, it should be noted that a "suppressed" weapon is not silent. The suppression mechanism reduces firing noise to approximately one-fifth of the noise absent the mechanism. If the marshals had intended to fire a weapon without detection, the Marshals Service had quieter guns available.[FN404]

The five surviving marshals insist they had not planned to use the .9mm, or any other weapon, to shoot the Weaver dog. Roderick testified that they marshals would have to neutralize the dogs when it came time to arrest Weaver, but that they only planned to conduct reconnaissance on the August mission.[FN405] Thomas understood that if they were confronted by the dogs, they were to leave the area.[FN406] Cooper said that they did not intend to get close enough to the Weaver house to encounter the dogs.[FN407]

The possibility of shooting the dog apparently first arose as Roderick, Cooper, and Degan were running away from the dog and Harris. Roderick reports that, during the attempted escape, he said that the dog might have to be killed because it had picked up the marshals' scent.[FN408] Cooper also said that he decided while they were running that it might be necessary to use the suppressed .9mm to "take out" the dog because it was leading the pursuers to the marshals and endangering their lives.[FN409]

The .9mm was not used to shoot the dog. Cooper stated that he did not shoot the dog for fear that by doing so in plain view of Harris, it would precipitate a firefight.[FN410] it was Roderick who shot the dog with his rifle, after hearing a shot fired to his left.

Cooper and Roderick, who spent many years in the Special Operations Group, saw nothing unusual about taking a "suppressed" weapon on a surveillance mission.[FN411] We do not find the presence of the weapon suspicious and can envision circumstances in which this type of weapon would be important for a surveillance team, such as when dangerous animals could be encountered.[FN412]

Although we recognize that the decision to bring the "suppressed" weapon on the mission may seem unusual, we are satisfied that there was no preconceived plan to use it or any other weapon to shoot the Weavers or their dog.[FN413]

(2) "Zeroing" the Weapons

It is common practice to "Zero" or readjust the sights of weapons that have been shipped to ensure that they have not been damaged in transit.[FN414] Chief Deputy Marshal Moriarity arranged for the team to use a firing range to zero the weapons Degan had shipped from Boston to Spokane to be used in the mission. On Thursday, August 20, Roderick, Cooper, Degan, Hunt, and Moriarity, along with some local deputy sheriffs, drove to the firing range and spent about an hour sighting and testing the weapons.[FN415]

Defense counsel pointed to the marshals' zeroing of their weapons as evidence that they had planned to confront the Weavers.[FN416] We found no evidence to support this allegation. The marshals' trip to the firing range was made openly, with several local state and federal law enforcement officials present. Contrary to defense claims, it was not [SEALED BY COURT] for the marshals' benefit but rather was nothing more than a precautionary practice in which the marshals routinely engaged. We do not attribute anything suspicious to this outing.

(3) Presence of a Medic on the Surveillance Team

Defense counsel also alleged that Norris, the medic, was brought on the August 21 mission [SEALED BY COURT]

[FN417] Counsels' statement implies the marshals planned a violent confrontation with the Weavers that day. We find no support for such a contention.

Each prior trip to the Weaver property had medical support.[FN418] The Weaver cabin is on a remote, heavily wooded mountain, and access to the area is difficult. It is common for a medic to go on an operation under such .[FN419]

The marshals also could not ignore the fact that the Weavers were constantly armed and were reportedly hostile to law enforcement. We consider the assignment of a medic to the team to be a responsible precaution under the circumstances and not proof that an assault was planned.

4) Tossing of Rocks

Defense counsel also alleged that Roderick threw rocks [SEALED BY COURT] to taunt the Weaver dogs and to provoke a confrontation.[FN420] Although Roderick did throw two rocks, we cannot conclude that this was done for the reason counsel posits.

The rocks at issue were thrown at least 15 minutes before the dogs were alerted by the sound of a vehicle. According to Cooper he suggested to Roderick that they toss rocks "to see what the dogs would respond to" because it was important to know which sounds would draw a reaction from the dogs in case a "cover" team member made a noise while moving into position.[FN421] Roderick was not concerned that tossing the rocks would create an unwarranted risk [FN422] since he had noticed during previous surveillance missions that a variety of sounds emanated from the woods, particularly along the side of the mountain.

Roderick distinguished his intent to test for a reaction from the dogs from purposely trying to provoke them. He denied attempting to excite the dogs.[FN423] Roderick was confident that, if the Weavers had heard the rocks, they would not have been able to see the marshals and that, if the dogs had reacted, they could not have reached the marshals.[FN424]

We do not believe that the marshals threw the rocks with the intent to agitate the dogs or to draw them to the marshals' location. Although we accept as reasonable the marshals' desire to determine how sound would carry in order to determine the best position for the observation post, we do not believe that the marshals fully considered the potential chain of events that could have unfolded if the dogs had reacted to the rocks. Although this decision was not well considered, we found no evidence that it was improperly motivated.[FN425]

(5) The Trip to the Lower Garden

Though not specifically raised by the defense, this inquiry considered whether the marshals went to the lower garden/spring house area below the mount on which the Weaver cabin sits for the purpose of luring the dog or the Weavers from the house. We found no evidence that the trip was made to incite a skirmish with the Weavers. Notwithstanding this conclusion, we must question the wisdom of the marshals travelling that close to the compound in daylight, especially after the dogs had been barking much of the morning.[FN426]

b. The Initiation of Gunfire at the Y

he prosecution charged at trial that Harris fired at Degan at the Y and set off the chain of events that led to the deaths of Degan, Sammy Weaver, and the Weaver dog. The defense countered that it was the marshals, not Harris, who had initiated the gunfire. The jury acquitted Weaver and Harris of all charges that they had assaulted federal officers.

The marshals testified at trial and provided sworn statements to this inquiry. The Weavers and Kevin Harris did not testify and declined to be interviewed for this investigation. Thus, their rendition of what occurred is derived from statements made by or attributed to them following the shootings and their surrender.

(1) Witness Accounts

Cooper was the only witness who saw Harris shoot Degan. He testified that Harris fired first. Harris admitted that he shot Degan, but claimed that he did so after Roderick had shot the dog. It is not disputed that Harris was carrying a heavy caliber 30.06 rifle.

Roderick could not see Harris fire and could not say whether the first shot came from a .223 or 30.06 caliber weapon. Thomas and Hunt agree that the first shot sounded like a heavy caliber weapon. Harris and Randy Weaver were the only ones at or near the Y with heavy caliber guns. However, Norris thought that the first shot, and the two that followed, came from a .223. Roderick and Degan were carrying .223 caliber M16 rifles.

Thomas, Hunt, and Norris agree about the sequence of the shots. They heard one, then two shots, in quick succession, followed by a barrage of fire. Cooper said that Harris fired once, and then Roderick twice. Roderick said he heard one shot before he fired once or perhaps twice. The physical evidence indicates Roderick fired only once. Hunt, Norris, and Roderick all stated that they heard Degan and Cooper start to identify themselves just before the first shot. Weaver and Harris gave conflicting versions. Weaver said that one of the marshals called out for him to freeze before there was any gunfire. Harris said that the marshals did not identify themselves until after the gunfire had stopped.

(2) Physical Evidence

An inventory of the marshals' ammunition taken on the early morning of August 22 showed that Hunt, Norris, and Thomas did not fire their weapons during the incident. Roderick fired one shot from an M16 rifle. Cooper fired six shots form the .9mm weapon. Degan's weapon had been fired seven times.[FN427] This appears to be inconsistent with Harris' claim that there was an "explosion of gunfire" from the marshals.[FN428] We believe that the marshals exercised restraint as to the number of shots discharged by the Weavers and Harris.[FN429]

Sammy Weaver was struck twice in the exchange of gunfire. One round hit him in the right arm, near the elbow, traveling from front to back. This bullet also shattered the stock of his rifle. The second and fatal shot hit the boy in the back and passed through his body, exiting after a slight track from left to right.[FN430]

(3) The First Shot

We are presented with diametrically opposed descriptions of events that occurred at the Y. However, we are sensitive to the fact that the gunfight occurred quickly and that all of the participants were under extraordinary stress during and after the shooting[FN431] which may have affected the witnesses' perception of events. The physical evidence is inconclusive and provides no assistance in determining who initiated the gunfight, although it is clear that the marshals did not "ambush" the Weavers. Thus, based upon the evidence available, we do not believe we can definitively reconstruct the sequence of fire that occurred at the Y.

c. The Shooting of Sammy Weaver

Dr. Charles R. Lindholm, who performed the autopsy on Sammy Weaver, could not offer an opinion on the type of bullet which wounded Sammy's arm. Dr. Lindholm reported that the fatal back/chest wound was "indicative of a low velocity round." he did not believe that it was caused by a .223 caliber bullet and thought that the wound "would be more consistent with that of a 9 millimeter round."[FN432]

Dr. Martin L. Fackler testified at trial for the prosecution as an expert in "wound ballistics." Dr. Fackler concluded that the fatal wound was caused by a .9mm bullet.[FN433] Dr. Fackler believed the bullet that caused the fatal wound was similar to the silver tipped bullets used in Cooper's weapon.[FN434]

Two .9mm firearms were at or near the "Y": Randy Weaver had a .9mm pistol; Cooper had been assigned a .9mm "suppressed" semi-automatic weapon. Weaver claims to have fired his weapon three or four times;[FN435] Cooper's was fired six times. Harris reported that he heard the shot that killed Sammy.[FN436]

Degan's M16 rifle fires a .223 caliber round. None of the marshals saw Degan discharge his weapon, though his gun was fired seven times. Cooper said that he did not fire Degan's weapon after he retrieved it.[FN437] Dr. Fackler testified that Degan could have fired his weapon after he had been shot in the chest by Harris, although his accuracy would have been impaired.[FN438] However, Fackler did not believe that Degan's M16 caused the fatal injury, but thought it was possible that the weapon could have caused the wound to Sammy's arm. [FN439]

Cooper and Roderick last saw Sammy run out of view up the trail. The location where Harris found Sammy's body is unknown because the Weavers moved the body.

Although it is not our intention to speculate, the evidence, though not conclusive, certainly suggests that the shot that killed Sammy came from Cooper's .9mm weapon. We have found no evidence that Cooper, or any of the marshals, intentionally sought to kill or injure Sammy Weaver.

Cooper said that he purposely fired three shots at Harris, after Harris shot Degan and appeared to be preparing to fire at Degan again. Cooper was convinced that he wounded or killed Harris, who dropped to the ground "like a sack of potatoes."[FN440] Actually, Cooper missed Harris, who disappeared out of view into the woods along the trail. Cooper then wheeled his weapon toward Sammy and took aim, but did not fire.[FN441] Cooper next fired a second three round burst, in the direction from which he had received fire, as cover in an effort to reach Degan. He said this burst was not directed at a specific target. It is possible that Sammy may have been mortally wounded at that time.

Sammy Weaver was shot during a firefight in which he was a participant. There is no proof, and we do not conclude, that Cooper intentionally aimed the fatal shot at Sammy Weaver. Indeed, the record demonstrates that the marshals went to great lengths in preparing for their mission to avoid endangering the Weaver children.

d. Allegation the Marshals Attempted to Cover Up the Shooting of Sammy Weaver

The marshals maintain that they did not know that Sammy Weaver had been killed until they were told about it on Sunday, August 23.[FN442] Prior to that time the marshals did not believe that Sammy Weaver had been harmed during the encounter. Cooper did not believe that he had hit Sammy when he put down cover fire to get to Degan, because he saw Sammy running up the trail afterward.[FN443] Indeed the only person that Cooper thought he had injured was Kevin Harris who he thought he had seen fall "like a sack of potatoes."

According to Jurgensen, the news that Sammy's body had been discovered in the "birthing" shed on August 22 appeared to surprise the marshals. Before this, the marshals had reported that Sammy had been at the Y when the shooting began, but they did not believe that he had been shot.[FN444] There was no mention of Sammy when the Weavers retrieved his body from the trail.[FN445]

In conclusion, we found no evidence that the marshals took any actions to conceal the death of Sammy Weaver. Indeed, the evidence indicates that it was not until the FBI discovered the body on August 24 that the marshals were even aware that Sammy Weaver had been killed.

4. Conclusion

We are unable to determine who initiated the gunfire at the Y on August 21. The evidence suggests, but does not establish, that the shot that killed Sammy Weaver was fired by Deputy Marshal Cooper. Assuming that to be so, we find that there was no intent on the part of Cooper or any of the other marshals to harm Sammy Weaver. We also find that the marshals did not attempt to conceal the shooting of Sammy Weaver since they were unaware that Sammy Weaver had even been injured.

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299 Defendants' Memorandum, January 6, 1993, at 3-5.

300 Id. at 3.

301 Norris is a medic. Libby, the medic on the earlier reconnaissance trip, was unavailable. Roderick Sworn Statement (draft), at 18. See Executive Operational Plan, August 12, 1992, at 2.

302 Haynes FD-302, at 4.

303 Roderick, Degan and Cooper had been members of SOG. Cooper testified that he and Degan "were like brothers." Cooper Trial Testimony, April 15, 1993, at 15. At the time of the assignment, only Degan was an active SOG member. Id. at 15.

304 Haynes FD-302, at 4.

305 Executive Operational Plan, May 37, 1992, at 2-3; Cooper Sworn Statement, at 3; Thomas Sworn Statement, at 2; Roderick Sworn Statement (draft), at 20.

306 Cooper said that if the marshals saw Weaver away from his children, they would have arrested him. Cooper Sworn Statement, at 5.

307 The following day they briefed U.S. Marshal Paul Nolan of the Eastern District of Washington, and his Chief Deputy, Michael Moriarity. Marshals Service protocol is that visiting marshals advise local offices of missions in their area. Moriarity FD-302, November 18, 1993, at 3-4. They explained the purpose of their mission was to update intelligence on the Weaver property. Id. at 7; Hunt Sworn Statement, at 19. Reports had been received that Weaver had built barricades and that sympathizers had arrived at the compound. Nolan explained that no one had observed the Weaver property since Roderick's last trip to the mountain. Roderick FD- 302, August 22 & 28, 1992, at 2.

308 Roderick instructed the team that "the children were to be completely removed from the equation." Roderick Sworn Statement (draft), at 12. Thomas said that the instructions were, if they saw the children, "to hide and avoid them." Thomas Sworn Statement, at 4; FD-302 Interview of Frank Norris, August 23 & 29, 1992, at 1.

309 Cooper Sworn Statement, at 3-4; Roderick Sworn Statement (draft), at 20; Thomas Sworn Statement, at 3.

310 The marshals tested each other on the identity of the persons in the videotapes. The Weaver dogs could be seen on the tapes, but they did not leave the compound area. There were no specific plans to deal with the dogs. Roderick Trial Testimony, May 20, 1993, at 155.

311 Roderick Sworn Statement (draft), at 21.

312 Roderick Sworn Statement (draft), at 19; Roderick FD-302, August 22, 1992, at 2; Cooper Sworn Statement, at 4. Mrs Rau reported to the Boundary County Sheriff on August 3, 1992 that the Weavers had stolen a tank and piping from their backup water system, which was functioning as their primary water source. Two weeks later, the Raus reported that the Weavers had stolen gasoline from their property. Boundary County Sheriff Incident Report, August 3 & 17, 1992; Roderick Sworn Statement (draft), at 19; FD- 302 Interview of Ruth Rau, October 12 & 13, 1993, at 6-7. Roderick was concerned because the gasoline was near one of the marshal's former observation positions. Roderick Trial Testimony, May 20, 1993, at 133.

313 Ruth Rau FD-302, October 12 & 13, 1993, at 6-7. Sheriff Whittaker told his Deputies not to go to the Weaver cabin because "law enforcement officers are not welcome." Since the Marshals Service had a warrant outstanding, Whittaker believed it inappropriate for his department to confront Weaver. FD-302 Interview of Bruce Whittaker, November 20, 1993, at 4-5.

314 Ruth Rau FD-302, October 12 & 13, 1993, at 6-7. The Weavers' treatment of the Raus was also a concern to Marshals Service Headquarters. Perez spoke to the Raus and concluded that they were being "terrorized." The Raus had provided considerable assistance to the Marshals Service, which felt responsible for their welfare. Perez considered it unacceptable that the Raus might be harmed while there was an outstanding warrant against Weaver. Perez FD-302, at 4; Ruth Rau FD-302, October 12 & 13, 1993, at 6.

315 Roderick Sworn Statement (draft), at 21; Cooper Sworn Statement, at 6.

316 Roderick Trial Testimony, May 20, 1993, at 117.

317 Roderick Trial Testimony, May 20, 1993, at 119, 122; Roderick Sworn Statement (draft), at 19.

318 Cooper Sworn Statement, at 5-6. John Haynes, Commander of the Special Operations Group, said that he told Degan "to go in and come off the site under the cover of darkness." Haynes FD-302, at 6. There is no evidence that Degan communicated this to the other members of the surveillance team. Cooper stated that they could not accomplish what they wanted to do that day before the sun came up. Cooper Sworn Statement, at 5-6. In fact, the observation post team did not reach its position on the mountain until daylight. Thomas Sworn Statement, at 5.

319 Roderick Trial Testimony, May 20, 1993, at 125, 159; Cooper Trial Testimony, April 15, 1993, at 23.

320 Cooper chose the .9mm because he was most familiar with its operation. Cooper Sworn Statement, at 4.

321 Id.; Roderick Sworn Statement (draft), at 21. Roderick testified that the sniper rifle was inappropriate for a reconnaissance mission. Roderick Trial Testimony, May 20, 1993, at 136.

322 Norris Sworn Statement, at 8; FD-302 Interview of Frank Norris, August 29, 1992.

323 Roderick Sworn Statement (draft), at 11; Cooper Trial Testimony, April 15, 1993, at 45.

324 Cooper Sworn Statement, at 6. The dogs had barked frequently during other surveillances, and they routinely barked at other animals or sounds unrelated to the surveillance teams. Roderick did not think that the dogs had alerted the Weavers to his team or that the Weavers had seen the team because it was dark. Roderick FD-302, August 23 & 28, 1992, at 4.

325 Thomas said that the sun was out when they arrived at the OP. Thomas Sworn Statement, at 5. Hunt explained that they had trouble reaching the OP. This was the first time the team had been to the Weaver compound for several months, and the undergrowth had gotten taller, changing the appearance of the terrain and making it more difficult to spot landmarks. Hunt Sworn Statement, at 21.

326 Cooper Sworn Statement, at 6; Hunt Sworn Statement, at 22. The radios were attached to the waist band of the marshal's pants. Each radio was equipped with a "surveillance kit," a wire connected to an ear piece, and a microphone which could be attached to the marshal's hands or lapels. Cooper Trial Testimony, April 15, 1993, at 42-43. Each marshal could hear the others as they spoke. Thomas Trial Testimony, June 2, 1993, at 11.

327 Hunt Sworn Statement, at 22; Thomas Sworn Statement, at 5- 6.

328 Hunt Sworn Statement, at 25.

329 FD-302 Interview of Joseph Thomas, August 23 & 27, 1992, at 2. Hunt commented that "everything was like 'clockwork.'" Thomas Sworn Statement, at 6.

330 Roderick FD-302, August 23 & 28, 1992, at 6.

331 Norris FD-302, August 23 & 29, 1992, at 2-3; Norris Sworn Statement, at 8.

332 Roderick Sworn Statement (draft), at 22; Cooper Sworn Statement, at 6.

333 Roderick Trial Testimony, may 20, 1993, at 172-173.

334 Roderick Trial Testimony, May 24, 1993, at 12, 191.

335 Roderick testified that this position was near where he had observed Weaver meet the Kittels in April. Id. at 13.

336 Roderick Sworn Statement (draft), at 22; Cooper Sworn Statement, at 6-7.

337 Hunt Sworn Statement, at 23.

338 All three marshals heard the second rock. Roderick Sworn Statement (draft), at 22; Cooper Sworn Statement, at 7. 339 Roderick Trial Testimony, May 24, 1993, at 11, 14, 17. Cooper said that Roderick also wanted to familiarize them with the spring house because "if there was ever a siege at the house, it might be necessary to cut off the water supply." Cooper Sworn Statement, at 7.

340 Id. at 7. Roderick was presumably referring to the trip along the East Trail, the final excursion during Phase II.

341 Roderick Sworn Statment (draft), at 23.

342 FD-302 Interview of Cooper, August 22, 1992, at 4.

343 Roderick Trial Testimony, May 24, 1993, at 20. The marshals agreed to use language designed to make anyone monitoring their communications think that they were with the Forest Service. Cooper Trial Testimony, April 15, 1993, at 66; Cooper Sworn Statement, at 6; Hunt Sworn Statement, at 22.

344 Thomas Sworn Statement, at 7; Hunt Sworn Statement, at 24.

345 Roderick Sworn Statement (draft), at 23; Thomas Sworn Statement, at 7. Cooper heard "something that sounded like a vehicle coming from the area of the Rau house," but was not sure what it was. Cooper Sworn Statement, at 7.

346 Cooper Sworn Statement, at 7; Hunt Sworn Statement, at 24.

347 Thomas Sworn Statement, at 7; Norris Sworn Statement, at 9.

348 Roderick Sworn Statement (draft), at 23

349 Cooper Sworn Statement, at 7

350 Hunt Sworn Statement, at 24: Thomas Sworn Statement, at 8. Thomas thought that the Weavers' reaction matched the description Hunt had given him earlier. Thomas Sworn Statement, at 7. A few hours after the shooting at the "Y," Hunt gave a videotaped briefing during which he said "{T}here was a response from the house, now this was not unusual, we'd seen this a hundred times before, we thought we heard a vehicle coming up the driveway . . . ." Transcript of Videotape of Hunt, August 21, 1992, at 9.

351 Hunt Sworn Statement, at 24.

352 Roderick Trial Testimony, May 24, 1993, at 28; Roderick Sworn Statement (draft), at 23.

353 Kevin Harris said during an interview with the FBI on September 1, 1992, that he was also carrying a .22 caliber pistol. Sam, in addition to the mini 14, had a .357 caliber handgun. FD-302 Interview of Kevin Harris, September 1, 1992.

354 Letter by Sara Weaver, dated August 26, 1992 (Appendix at 27).

355 Harris FD-302, September 1, 1992, at 1.

356 The entry ended abruptly. Journal Entry of Vicki Weaver dated August 21, 1992.

357 Roderick Trial Testimony, May 24, 1993, at 20.

358 Hunt Sworn Statement, at 24; Thomas Sworn Statement, at 8. Hunt thought from the sound of the barking that the dogs were moving westward. He had not seen the dogs behave in this manner before. Hunt thought the dogs were barking "like they had the 'game treed'." Hunt Sworn Statement, at 25.

359 Roderick Trial Testimony, May 24, 1993, at 31. Cooper testified that they were trying to escape at that point and were no longer worried about making noise. Cooper Trial Testimony, April 15, 1993, at 65.

360 Roderick Sworn Statement (draft), at 24; Norris Sworn Statement, at 9. Cooper decided while they were running that it might be necessary to "take out" the dog. He decided to use the suppressed .9mm for that purpose. Cooper Trial Testimony, April 15, 1993, at 95-96; Cooper Sworn Statement, at 8.

361 Roderick Sworn Statement (draft), at 24; Cooper Sworn Statement, at 8.

362 Roderick Sworn Statement (draft), at 24. Cooper mistakenly thought the OP team was referring to Harris. Cooper Sworn Statement, at 8.

363 Thomas Sworn Statement, at 8.

364 Roderick Sworn Statement (draft), at 25. Roderick testified that while they were running from Harris and the dog, they could have stopped and taken up defensive positions several times. "{I}f we hunkered down low to the ground, they way we were dressed, we probably could have taken them out" at several points along their escape route. They did not, though, because they "were still under orders not to have a confrontation with the Weaver family." Roderick Trial Testimony, May 24, 1993, at 33, 35.

365 Id. at 38.

366 Cooper Trial Testimony, April 15, 1993, at 95-96; Cooper Sworn Statement, at 8.

367 Id. at 8.

368 Cooper Trial Testimony, April 15, 1993, at 104-105.

369 The marshals gave statements to the FBI following the shooting and testified in the preliminary hearing before the grand jury and at trial. They also gave statements to this investigation. The Weavers and Harris did not testify either before or at trial, and declined to be interviewed for this inquiry. Their rendition of what occurred is derived from statements made by or attributed to them by others following the shootings and their surrender.

370 Cooper Trial Testimony, April 15, 1993, at 106, 251-253; Cooper Sworn Statement, at 8-9.

371 Cooper referred to this as "dancing" with the dog. Cooper Trial Testimony, April 15, 1993, at 264.

372 Cooper called this position a "fox hole." Cooper Trial Testimony, April 15, 1993, at 107-108; Cooper FD-302, August 22, 1992, at 7.

373 Roderick Sworn Statement (draft), at 25; Roderick Trial Testimony, May 24, 1993, at 53-55.

374 Cooper Sworn Statement, at 9.

375 Id. at 9-10; Cooper Trial Testimony, April 15, 1993, at 122-24.

376 Roderick FD-302, August 28, 1992, at 2-3.

377 Roderick Trial Testimony, May 24, 1993, at 249; {G.J.} Roderick FD-302, August 28, 1992, at 2. Cooper told Roderick that he thought Roderick had fired twice. Roderick FD-302, August 22 & 28, 1992, at 8. Roderick also thought that he might have fired two rounds. Roderick Sworn Statement (draft), at 25. However, the physical evidence reveals that Roderick fired only once. FD-302 Interview of Mark Jurgensen, August 22, 1992, at 2.

378 Roderick FD-302, August 22 & 28, 1992, at 8. Roderick said that the shooting sounded "like it was all around us. There was bark and other debris flying as bullets hit the ground around me." Roderick Sworn Statement (draft), at 26; Roderick Trial Testimony, May 24, 1993, at 100. The distance between where Roderick jumped into the brush after shooting the dog and Cooper's position was later measured as 39 feet. Roderick FD- 302, August 28, 1992, at 3.

379 Cooper Trial Testimony, April 15, 1993, at 138-39; Cooper Sworn Statement, at 10; Cooper FD-302, August 22, 1992, at 6. Cooper heard and saw gunshots striking the ground near him and "bits of dirt and debris 'dancing' on the ground." Cooper Sworn Statement, at 10.

380 An FBI report quoted Cooper as suggesting that he held his gun over his head and fired blindly. Cooper FD-302, August 30, 1992, at 3. At trial, and to this investigation, Cooper insisted that he was misquoted and that he had aimed down the barrel of his rifle. Cooper Trial Testimony, April 15, 1993, at 277-84; Cooper Sworn Statement, at 10.

381 Cooper FD-302, August 22, 1992, at 6; Cooper Sworn Statement, at 10; Cooper Trial Testimony, April 15, 1993, at 135-39.

382 Cooper FD-302, August 22, 1992, at 7; Cooper Sworn Statement, at 10.

383 FD-302 Interview of Dr. Charles R. Lindholm, August 31, 1992, at 2.

384 Cooper Sworn Statement, at 10; Cooper FD-302, August 22, 1992, at 7.

385 Norris Sworn Statement, at 9; Norris Trial Testimony, June 2, 1993, at 53-54, 62-63, 76-77.

386 Thomas Trial Testimony, June 2, 1993, at 18; Thomas Sworn Statement, at 9-11.

387 Hunt Sworn Statement, at 25; FD-302 Interview of Hunt, August 22, 1992, at 7.

388 Hunt thought that the shots had been fired from the front and above him to his left. Hunt was approximately 20 to 30 yards from the Y when they received the volley of gunfire. Hunt Sworn Statement, at 26. Thomas and Norris were about 50 yards behind him. Thomas did a somersault to avoid the fire and kept running. Thomas Sworn Statement, at 9. Hunt looked back at Thomas and Norris, saw them on the ground, and thought that they had been hit. Hunt Sworn Statement, at 26. Norris thought that Sara or Rachel Weaver fired the shots. The latter had been seen leaving the house carrying weapons shortly before the OP team started for the Y. Norris Sworn Statement, at 10.

389 Letter from Sara Weaver, August 26, 1992 (Appendix at 27). Weaver told Bo Gritz in a monitored conversation that "Sam opened up on the marshals when he saw 'em shoot the dog. That's when Kevin shot the officer. Because they shot Sam." Transcript of Conversation between Randy Weaver and Bo Gritz, August 29, 1992. In another conversation, recorded by the FBI, Randy Weaver told Jackie Brown that Harris "saw Sam get hit in the right arm. And he, he just wanted to stop 'em from shootin' at him. What the hell would anybody do?" Transcript of Conversation between Randy Weaver, Bo Gritz, and Jackie Brown, August 29, 1992.

Randy Weaver has also claimed that he went "down to the Y and somebody jumped out in front of me, and yelled something. I headed back toward home, and I heard a shot, and I heard the dog yelp." Harris added, "Somebody shot the dog and, and it just, all the woods exploded with gunfire." Transcript of Interview of Weaver by Tom Brokaw, August 18, 1993, for "Now," NBC News.

390 Letter from Sara Weaver, August 26, 1992.

391 Harris FD-302, September 1, 1992, at 2-3; FD-302 Interview of Bo Gritz, September 10, 1992, at 1, and November 17, 1993, at 9.

392 Ruth Rau FD-302, October 12 & 13, 1993, at 8.

393 Cooper Trial Testimony, April 15, 1993, at 160; Cooper Sworn Statement, at 10; Roderick Sworn Statement (draft), at 26.

394 Roderick heard Norris say this over the radio. Roderick Sworn Statement (draft), at 26.

395 Hunt Sworn Statement, at 28; Norris Trial Testimony, June 2, 1993, at 71. Thomas did not recall hearing Cooper say he had shot Harris then. He did, however, receive a radio transmission from Cooper saying this about an hour after Thomas reached the Rau house. Thomas Trial Testimony, June 2, 1993, at 22.

396 Hunt Sworn Statement, at 27; Roderick Trial Testimony, May 24, 1993, at 122 ("[E}very time the Weavers heard a sound they just unloaded, they would start firing at any noise they heard").

397 The most likely explanation for the uproar is that the Weavers had discovered Sammy Weaver's body. However, there was no mention of Sammy Weaver's name during the commotion. Cooper Sworn Statement, at 11; Roderick Sworn Statement (draft), at 27; Hunt Sworn Statement, at 28. The marshals could not see anyone from their position. Roderick and Cooper assumed that the uproar meant that Harris had died from wounds received during the exchange of fire. Cooper Trial Testimony, April 25, 1993, at 170, April 16, 1993, at 527; Cooper Sworn Statement, at 11; Roderick Sworn Statement (draft), at 27.

398 Roderick testified that he heard the plane about two hours after Thomas and Hunt had left. Roderick Trial Testimony, May 24, 1993, at 125. See Norris Trial Testimony, June 2, 1993, at 75. Roderick told Hunt to instruct the Federal Aviation Administration to restrict airspace around the mountain. Roderick Sworn Statement (draft), at 27; Cooper Trial Testimony, April 15, 1993, at 168; Cooper Sworn Statement, at 11.

399 Cooper characterized conditions as "miserable." Cooper Trial Testimony, April 15, 1993, at 185; Cooper Sworn Statement, at 11. The Crisis log says that Hunt reported at 5:08 p.m/. that it had started to rain.

400 Cooper and Roderick refused a suggestion from the Crisis Center that they leave Degan and "get out of there." Hunt Sworn Statement, at 31-32.

401 Roderick gave Hunt various orders as Hunt and Thomas worked their way down the mountain, such as to reestablish the observation post, block off the road, and obtain night vision equipment. Hunt relayed Roderick's instructions, but they were not followed. Roderick Sworn Statement (draft), at 27-28; Cooper Sworn Statement, at 11.

402 Roderick specifically instructed surveillance team members on the evening of August 19 to avoid any encounter with the Weavers, particularly the children. Hunt Sworn Statement, at 20; Cooper Sworn Statement, at 5; Norris FD-302, August 23 & 29, 1992, at 1. Roderick characterized himself as having been "brainwashed" about ensuring that "the children were . . . completely removed from the equation." Roderick Sworn Statement (draft), at 20. Thomas told us that the team had been instructed "to hide (from the children) and avoid them." Thomas Sworn Statement, at 4.

403 [Sealed by Court] [G.J.]

404 Moriarity FD-302, at 7.

405 Roderick considered a number of means of controlling the dogs when the time came to arrest Weaver. Deadly force and various chemical products were among the options. however, Roderick did not finalize a plan because the operation never reached the point when arrest was imminent. Roderick Trial Testimony, May 20, 1993, at 149-52, 154.

406 Thomas Sworn Statement, at 3.

407 Cooper had been involved in 1991 in a SOG operation in California where three SOG members and three National Guardsmen hiked several miles through dense woods to arrest a fugitive. on that project, Cooper was prepared to shoot the fugitive's dog if the dog and the fugitive was captured without incident. Cooper Sworn Statement, at 2, 4-5.

408 Roderick Sworn Statement (draft), at 24.

409 Cooper Sworn Statement, at 8; Cooper Trial Testimony, April 16, 1993, at 455-60. After they heard Roderick say "the dogs are on us," Thomas and Hunt heard a radio transmission from someone on the Recon team about the possibility of shooting the dog. Thomas Sworn Statement, at 8; Hunt Sworn Statement, at 25.

410 Cooper Sworn Statement, at 9; Cooper Trial Testimony, April 16, 1993, at 478.

411 Cooper Sworn Statement, at 4.

412 Moriarity reported that there are bears and other large, often dangerous, animals in the woods of Northern Idaho. Such animals would be a legitimate concern for the team. Moriarity FD-302, at 7. The Marshals Service Firearms Policy provides that firearms may be used against animals "to prevent attack that threatens bodily injury." See Memo by Stanley E. Morris, (former) Director, U.S. Marshals Service, June 10, 1988, at 2.

413 We are troubled by the fact that there was no plan to deal with the dogs during the surveillance mission. The animals were known to be active and excitable, and there had been reports that one of the dogs, Striker, was aggressive and had attacked someone. Cooper Sworn Statement, at 5. The potential for an encounter certainly existed and ought to have been more thoroughly considered.

414 See Cooper Sworn Statement, at 4.

415 Cooper Sworn Statement, at 4; Cooper Trial Testimony, April 15, 1993, at 32; Roderick Sworn Statement (draft), at 21.



418 Executive Operational Plans, March 27, April 10, May 20 & May 27, 1992. We note that Norris did not arrange for the medivac helicopter provided for in the Plan because the team did not anticipate contact with the Weavers. Norris Trial Testimony, June 2, 1993, at 63-66; Norris Sworn Statement, at 8.

419 Norris Sworn Statement, at 2. Norris had been trained to deal with wounds ranging from cuts and abrasions to gunshots.


421 Cooper Trial Testimony, April 15, 1993, at 66-67, 88. See Thomas Trial Testimony, June 2, 1993, at 17.

422 Hunt was also not concerned about Roderick throwing the rocks. Hunt Sworn Statement, at 23.

423 Roderick Trial Testimony, May 24, 1993, at 188-89.

424 Roderick Sworn Statement (draft), at 22-23; Roderick Trial Testimony, May 24, 1993, at 190

425 We are again unsettled by the absence of a plan for the possibility that the dogs would locate the marshals' position. This omission is symptomatic of a larger problem, the lack of a plan to follow should the Weavers discover the marshals. For instance, all three marshals abandoned the observation post once the shooting began at the Y. Although their desire to go to the aid of their colleagues is understandable, the law enforcement components that responded to the mountain were deprived of vital information on the Weavers' location and movements in the hours that followed the shooting.

426 Again, there was no contingency plan to keep someone at the observation post, should the Weavers pursue the reconnaissance team. The marshals who remained on the mountain with Degan's body following the shootout asked Hunt to place someone in the observation post to observe the Weavers. Cooper Sworn Statement, at 11. This was not done.

427 Roderick's weapon had been loaded with 27 rounds, as had Degan's. Cooper's 9mm had been loaded with 25 rounds. Jurgensen FD-302, August 22, 1992, at 2-3; Jurgensen Sworn Statement, at 12; Thomas Sworn Statement, at 14.

428 Defense counsel likewise described the marshal's fire as "wild." Defendants' Memorandum, at 4.

429 Ruth Rau believes that she heard approximately 50 shots fired during the initial exchange of gunfire, which she estimated as lasting two minutes. See Ruth Rau FD-302, October 12 & 13, 1993, at 8. Fourteen of these rounds were fired by the marshals.

430 Autopsy Report by Mick Mellett, Boundary County Coroner, August 25, 1992, at 4.

431 Cooper testified that "all these things [are] compressed into a few seconds,it's difficult to remember exactly what happened first." Cooper Trial Testimony, April 15, 1993, at 264.

432 FD-302 Interview of Dr. Charles R. Lindholm, August 25, 1992, at 2.

433 Trial Testimony of Dr. Martin L. Fackler, June 8, 1993, at 127-28, 185-86.

434 Fackler Trial Testimony, June 8, 1993, at 186.

435 Letter by Sara Weaver, August 26, 1992.

437 Cooper Sworn Statement, at 10.

438 Fackler Trial Testimony, June 8, 1993, at 177, 183. This inquiry asked Dr. H. Edward Lane to independently evaluate whether Degan could have fired after he had been wounded. Dr. Lane also concluded that it would have been possible for Degan to fire, but Degan's accuracy at that point could not be determined. FD-302 Interview of Dr. H. Edward Lane, August 11, 1993.

439 Id. at 183-184.

440 Cooper was surprised the next day when the FBI reported that snipers had shot Harris, because he was certain that he had wounded Harris at the Y. See Cooper Sworn Statement, at 12-13.

441 Cooper Sworn Statement, at 9-10; Cooper Trial Testimony, April 15, 1993, at 122-34.

442 Roderick Trial Testimony, May 24, 1993, at 340; Cooper Sworn Statement, at 10, 13.

443 Cooper FD-302, August 22, 1992, at 6; Cooper Sworn Statement at 10.

444 Jurgensen Sworn Statement, at 14; FD-302 Interview of John Twomey, November 26, 1993, at 3. According to Director Hudson, Twomey may have said that Sammy Weaver might have been wounded. Hudson FD-302, at 4. Twomey reported that he told Hudson that Sammy had been on the scene, but that there was "no indication of his being shot." Twomey FD-302, at 3. Hudson agreed that the Marshals Service did not know that Sammy had been killed until his body was found. Hudson FD-302, at 6-7.

445 Cooper Sworn Statement, at 11; Roderick Sworn Statement (draft), at 27; Hunt Sworn Statement, at 28.

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