The ATF Investigation

Activities of Federal Law Enforcement Agencies Toward the Branch Davidians

Report House of Representatives
104th Congress, 2nd Session, Union Calendar No. 395
August 2, 1996

                        II. The ATF Investigation

    In May 1992, the Austin, TX Office of the Bureau of Alcohol, Tobacco 
and Firearms was called by Chief Deputy Daniel Weyenberg of the McLennan 
County Sheriff's Department. Weyenberg notified the ATF that his office 
had been contacted by the local United Parcel Service regarding a 
package it was to deliver to the Branch Davidian residence. The package 
had broken open and contained firearms, inert grenade casings, and black 
    \4\ U.S. Dept. of the Treasury, Report of the Department of the 
Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation 
of Vernon Wayne Howell also known as David Koresh 17 (1993) [hereinafter 
Treasury Department Report].
    On June 9, 1992, Special Agent Davey Aguilera of the Austin ATF 
office opened a formal investigation. Within a week, Philip Chojnacki, 
the Special Agent in Charge of the Houston ATF Office classified the 
case ``sensitive,'' thereby calling for a high degree of oversight from 
both Houston and Headquarters in Washington, DC.\5\ Notwithstanding the 
priority given to the case, numerous and serious missteps occurred 
throughout the investigation that followed. The most troubling aspects 
of the case were the ATF's overall lack of thoroughness in its 
investigation, the ineffectiveness of the undercover operation, and an 
affidavit in support of the search and arrest warrants that was replete 
with deficiencies.
    \5\ Treasury Department Report at 24.

                     a. the mcmahon compliance visit

    On July 30, Aguilera joined ATF compliance officer Jimmy Ray Skinner 
to conduct a compliance inspection of the premises of Henry McMahon, 
proprietor of Hewitt Hand Guns. The inspection revealed that certain AR-
15 lower receivers supposedly in McMahon's inventory were neither on the 
premises nor listed in his records as sold.\6\ McMahon indicated that 
they were in the possession of David Koresh. McMahon then called Koresh, 
who offered to allow the agents to inspect for possible firearms 
violations. The agents declined the invitation.\7\ Shortly thereafter, 
McMahon told Koresh that he was suspicious that an investigation of 
Koresh and his followers was underway.\8\
    \6\ Id. at 26.
    \7\ Investigation Into the Activities of Federal Law Enforcement 
Agencies Toward the Branch Davidians (Part 1): Hearings Before the 
Subcommittee on Crime of the House Committee on the Judiciary and the 
Subcommittee on National Security, International Affairs, and Criminal 
Justice of the House Committee on Government Reform and Oversight, 104th 
Cong., 1st Sess. 163 (1995) [hereinafter Hearings Part 1].
    \8\ Id.
    It is unclear why the ATF did not accept the offer to do a 
compliance inspection of Koresh's firearms. Importantly, the Treasury 
Report fails to mention that Aguilera had an opportunity at the time of 
the compliance inspection to inspect Koresh's firearms. Wade Ishimoto, a 
reviewer of the Treasury Department Report, indicated to the 
subcommittees that he had not been made aware of the McMahon compliance 
visit by the Department of Treasury during his review.\9\ Mr. Ishimoto 
maintained that Koresh's offer should have been accepted, presenting an 
invaluable opportunity to gather critical intelligence.\10\ The agents' 
decline of the Koresh offer was a serious mistake.
    \9\ Hearings Part 1 at 332.
    \10\ Id.

                     b. the investigation continued

    Tracing UPS invoices, Aguilera learned that more than $43,000 worth 
of firearms (including AR-15 semiautomatics), firearms parts (including 
AR-15 lower receivers), grenade hulls, and black powder had been shipped 
to the Davidians' storage facility.\11\ One of Koresh's neighbors, who 
had served in an Army artillery unit, told Aguilera that he had 
frequently heard the sound of automatic weapons fire--including .50-
caliber fire--coming from the Davidian residence.\12\ Aguilera also 
learned that in November, a deputy sheriff had heard a loud explosion at 
the Davidian residence which produced a cloud of grey smoke.\13\ Through 
interviews with former cult members, Aguilera learned of numerous 
allegations that Koresh had had sexual relations with girls younger than 
16 years of age.\14\ These allegations would later feature prominently 
in Aguilera's affidavit in support of the search and arrest warrants.
    \11\ Treasury Department Report at 21, B-182.
    \12\ Id. at 26.
    \13\ Id. at 27.
    \14\ Id. at 27-29.
    In December 1992, after reviewing all of the available evidence 
associated with the Koresh investigation in ATF headquarters in 
Washington, ATF decided they did not yet have probable cause to support 
a warrant. Director Higgins stated: ``[W]e went out and got more 
information and came back in February . . . . We didn't have it 
[probable cause] until mid-February.'' \15\ As part of its effort to 
develop probable cause and to gather additional intelligence, on January 
10, 1993 the ATF set up surveillance cameras in an undercover house 
across from the Davidian residence. The surveillance produced no 
additional evidence of criminal activity. Former Davidians were 
interviewed in December 1992 and January 1993. Among those interviewed 
were three members of the Bunds family, all of whom had left the 
compound before 1992. The events that were described by the Bunds 
occurred prior to 1992,\16\ and the information they provided was so 
stale as to be of little or no value.
    \15\ Events Surrounding the Branch Davidians Cult Standoff in Waco, 
Texas: Hearings Before the House Committee on the Judiciary, 103d Cong., 
1st sess. (1993).
    \16\ Treasury Department Report at 27-28.
    Importantly, the only activity mentioned in the affidavit involving 
the Branch Davidians that occurred between December 1992 and February 
1993 was Agent Rodriguez's undercover visits to the Davidian residence. 
The visits consisted of Koresh speaking to Rodriguez about Second 
Amendment rights, Koresh showing a tape of alleged ATF abuses, and the 
two men shooting legal firearms at the compound's range. It appears that 
Rodriguez discovered no evidence during his visits that would have 
contributed to a finding of probable cause, or that would have provided 
valuable information to guide subsequent ATF action. Nevertheless, in a 
case of such potential danger that it was designated ``sensitive'' and 
``significant,'' the ATF proceeded with its February raid.
    Throughout the ATF's investigation decisions were made and actions 
were taken which demonstrated a reckless disregard for the value of 
well-developed intelligence. Furthermore, the haphazard manner in which 
the investigation was pursued repeatedly exposed the lack of adequate 
command, control and communications processes to support such an 

                         c. undercover operation

    On January 11, 1993, eight ATF agents moved into a small house 
directly across from the front drive of the Davidian residence, posing 
as college students attending the nearby Texas State Technical College. 
Through a series of mistakes, the ATF appeared to lose the security of 
its undercover operation. At least some of the breaches of security were 
so serious, and obvious, that they should have been recognized as such 
by ATF, and become the basis for modifying the nature and timing of any 
subsequent action against Koresh.
    There is substantial evidence to suggest that Koresh and the 
Davidians knew that the undercover house established by the ATF across 
the street from the compound was occupied by law enforcement officials. 
Koresh told his next door neighbor that he believed that the self-
identified ``college students'' were too old to be actual college 
students, with cars too new and expensive to be owned by college 
students. He commented that they were probably Federal agents.\17\ The 
agents were also informed by one of Koresh's neighbors shortly after 
they began surveillance that Koresh suspected they were not what they 
claimed to be.\18\ On one occasion, the Davidians visited their new 
neighbors in the undercover house to deliver a six pack of beer, but the 
occupants of the house would not let them in.\19\ Finally, Koresh 
complained to the local sheriff that the UPS delivery man was an 
undercover police officer.\20\ Koresh commented that he did not 
appreciate being investigated. At the hearing, Agent Rodriguez testified 
that ``all of [the undercover ATF agents], or myself knew we were going 
to have problems. It was just too--too obvious.'' \21\
    \17\ Id. at 187.
    \18\ Id.
    \19\ Dick J. Reavis, The Ashes of Waco 67 (1995).
    \20\ Id. at 69.
    \21\ Hearings Part 1 at 796.
    The undercover operation was also undermined by its limited nature: 
The 24-hour-a-day surveillance was only sustained from January 11 
through January 19, at which time Agent Chuck Sarabyn, the ATF tactical 
commander, ended the constant surveillance and redirected the mission 
toward infiltration of the compound.\22\ It was later determined at 
trial that during the period of constant surveillance the agents within 
the house did not know what Koresh looked like. Rodriguez testified at 
trial that the only picture identification that the agents possessed was 
``a driver's license picture of him, which was not that good. That was 
one reason we [later] needed to make contact with the people inside the 
compound, so we could identify him. I myself did not know what he looked 
like [at the time of surveillance].'' \23\ Significantly, the 
surveillance log cites two occasions when a white male jogged up and 
down the road on which the undercover house was located.\24\ If this 
jogger had been Koresh, according to Rodriguez's trial testimony, the 
agents would not have known it. The lack of an effective surveillance 
operation was further demonstrated through the ATF's failure to develop 
nearly 900 photographs taken from the undercover house or to review 
videotapes of the movements of the Davidians.\25\ This evidence 
represented an opportunity to develop critical intelligence regarding 
the habits and movements of compound residents, including Koresh.
    \22\ Treasury Department Report at 52.
    \23\ United States v. Branch, et al., Case No. W-93-CR-046 (2) (3) 
(4) (5) (6) (7) (8) (9) (10) (11) & (12) (W.D. Tex. 1994).
    \24\ ATF Surveillance Log.
    \25\ Hearings Part 1 at 807.
    The lack of such basic and critical intelligence clearly undermined 
the ability of the undercover operation to fulfill its mission. The 
operation's failure to develop useful intelligence after 8 days of 
continuous surveillance should not have led to the termination of the 
surveillance, but rather to its modification and prolongation. Given the 
potential for danger to agents and those within the compound and the 
dearth of intelligence, the decision to end around-the-clock 
surveillance was seriously flawed. Significantly, all of the ATF 
supervisory agents involved in the planning of the operation believed 
the continuous surveillance continued beyond the date it was actually 
ended. This mistaken belief both confirms that the termination of the 
surveillance was ill-advised, and highlights the wholly inadequate 
command, control and communications processes utilized by ATF throughout 
the operation. The eyes and ears were poorly utilized, and what 
intelligence they did supply was poorly used.

     d. failure to comply with ``sensitive-significant'' procedures

    As noted in the Treasury Report, the Koresh investigation was 
classified as ``sensitive'' and ``significant'' within a week of its 
formal initiation on June 9, 1992. Such a classification is intended to 
ensure a higher degree of involvement and oversight from both the ATF 
Special Agent in charge and ATF headquarters. Yet, in spite of this 
designation, the agents in charge of the investigation received minimal 
oversight in developing the investigation and raid, with important 
elements of the plan, such as whether or not to abort the raid if the 
element of surprise was lost, apparently not being understood by the 
agents in charge. In view of this designation, the lack of knowledge on 
the part of the Special Agent in Charge, and Headquarters, throughout 
the investigation--including the undercover operation--is striking. The 
``sensitive/significant'' designation makes ATF's failure to have 
implemented a process for continually reviewing intelligence and 
modifying plans accordingly a glaring omission.

               e. the affidavit in support of the warrants

    The subcommittees examined the constitutionality of the search and 
arrest warrants, carefully reviewing the information contained in the 
supporting affidavit.
    The fourth amendment to the Constitution provides: ``No warrants 
shall issue, but upon probable cause, supported by oath or affirmation, 
and particularly describing the place to be searched, and the persons or 
things to be seized.'' \26\ The Supreme Court has ruled that, in order 
for this protection to be enforced, a warrant may issue only upon the 
determination of a neutral and detached magistrate that probable cause 
exists to believe that the search will yield evidence of 
criminality.\27\ The standard articulated in Illinois v. Gates, which 
guides a magistrate's probable cause determinations, is whether ``there 
is a fair probability that contraband or evidence of a crime will be 
found in a particular place.'' \28\ Such a determination is, in the 
Supreme Court's words, a ``practical, common-sense decision whether, 
given all the circumstances set forth in the affidavit before the 
magistrate . . . there is a fair probability that the contraband or 
evidence of a crime will be found in a particular place.'' \29\
    \26\ U.S. Const. amend IV.
    \27\ United States v. Leon, 468 U.S. 897 (1984).
    \28\ Illinois v. Gates, 462 U.S. 213, 238 (1983).
    \29\ Id.
    When applying this common sense standard to the circumstances of the 
ATF investigation, the affidavit appears to have contained sufficient 
evidence of violations of Federal firearms law to support the 
magistrate's decision to issue the warrants.\30\ There were substantial 
purchases of AR-15 semiautomatics and AR-15 lower receivers, grenade 
hulls, and black powder. A neighbor, who had served in an Army artillery 
unit, testified that he had frequently heard the sound of automatic 
weapons fire. A deputy sheriff testified that he had heard a loud 
explosion at the Davidian residence which produced a cloud of grey 
smoke. Taken together, this information provided a sufficient basis for 
finding probable cause to issue the warrants.
    \30\ All of the constitutional scholars contacted by the 
subcommittees agreed with the conclusion that there was probable cause 
in support of the warrants. See Hearings Part 1 at 818 (Letter from 
Albert W. Altschuler, Wilson-Dickinson Professor of Law, University of 
Chicago to Rep. John Conyers, Jr. (July 13, 1995)).
    While the warrants may have met the minimal standard of 
constitutional sufficiency, the affidavit supporting the warrants 
contained numerous misstatements of the facts, misstatements of the law, 
and misapplication of the law to the facts, and serves as a de facto 
record of a poorly developed and mismanaged investigation. The affidavit 
included misleading and factually inaccurate statements, contained 
substantial irrelevant and confusing information, and failed to properly 
qualify witnesses' testimony when obviously called for based on their 
backgrounds. Consequently, the affidavit gave the appearance that the 
ATF was not going to let questionable facts or evidence stand in the way 
of moving forward on their timetable.
    The affidavit provided and sworn to by Aguilera contained numerous 
errors and misrepresentations, which, taken together, create a seriously 
flawed affidavit. The affidavit misstated that Koresh possessed a 
British Boys anti-tank .52 caliber rifle, when in fact Koresh owned a 
Barret light .50 firearm.\31\ Possession of the British Boys would have 
been a felony \32\ while possession of the Barret was completely legal. 
The affidavit misstated that the M16 parts kits from Nesard company were 
two CAR and two EZ kits which contained all the parts of an M16 machine 
gun except for the lower receiver unit, when, in fact, the Nesard parts 
kits do not contain the auto sear and pin which are absolutely necessary 
to convert semi automatic weapons to machine guns.\33\ The affidavit 
failed to mention that grenade hulls like those cited in the affidavit 
to help establish probable cause had been sold by the Davidians in the 
past at gun shows as paper weights and mounted on plaques. Finally, the 
affidavit was misleading by reporting that Deputy Sheriff Terry Fuller 
was in the vicinity of the compound when he heard a loud explosion, but 
then failed to report that Fuller investigated and learned that the 
Davidians were using dynamite for construction.
    \31\ Affidavit of Davey Aguilera in support of arrest warrant, at 14 
[hereinafter Aguilera Affidavit]. [See documents produced to the 
subcommittees by the Department of the Treasury T004700-T004714 at 
Appendix [hereinafter Treasury Documents]. The Appendix is published 
    \32\ 26 U.S.C., Ch. 53.
    \33\ Aguilera Affidavit at 5.
    Former Davidian Marc Breault provided much of the information 
contained in the ATF's affidavit. Yet, nowhere in the affidavit is it 
mentioned that Breault left the compound as an opponent of Koresh, a 
fact certain to call into question Breault's motives. Nor does the 
affidavit mention that he is blind. On the contrary, the affidavit 
implies that he was a compound bodyguard. It states that Breault 
``participated in physical training and firearm shooting exercises 
conducted by Howell. He stood guard armed with a loaded weapon.'' \34\
    \34\ Aguilera Affidavit at 12.
    The affidavit also contained misapplications of firearms law. The 
affidavit alleged the violation of one statute: 26 U.S.C. Sec. 5845(f). 
This statute, however, merely defines ``destructive device.'' It does 
not establish any crime. It is 26 U.S.C. Sec. 5861 which establishes 
crimes related to destructive devices. The affidavit also confused the 
term ``explosive'' with the term ``explosive device,'' a term which does 
not appear in Federal law.
    In the affidavit, Aguilera misstated that a ``machinegun conversion 
kit'' was a combination of parts ``either designed or intended'' to 
convert a semiautomatic into an automatic firearm. In fact, Federal law 
defines a conversion kit to be a combination of parts ``designed and 
intended'' to convert a semiautomatic into an automatic.\35\
    \35\ See 26 U.S.C. Sec. 5845.
    In the affidavit, Aguilera also misstated that Koresh had ordered M-
16 ``EZ kits.'' The kits to which Aguilera was referring are called 
``E2'' kits. Furthermore, the E2 kit is a spare parts kit, not a 
conversion kit. It contains spare parts which fit either a semiautomatic 
Colt AR-15 Sporter or an automatic Colt M-16 automatic. Because it is 
not a conversion kit, the E2 kit is not regulated by Federal law. Yet 
the affidavit implies that the kit's purpose is for converting 
semiautomatics into automatics. On this point, the Treasury Department 
Report is mistaken as well. While it correctly named the E2 kit, it 
wrongly asserted that ``the parts in the kit can be used with an AR-15 
rifle or lower receiver to assemble a machinegun . . . The parts in the 
E2 kit also can be used to convert an AR-15 into a machinegun.'' \36\ 
These assertions are false. The Treasury Department regulates genuine 
conversion kits as if they were themselves machineguns. It does not 
regulate E2 kits.
    \36\ Treasury Department Report at 23-24.
    Intimating that Koresh was converting AR-15 Sporters and 
semiautomatic copies of AK-47's into automatics, Aguilera included 
evidence of purchases made by Koresh from a South Carolina Company which 
was known to sell parts needed to convert semiautomatics of the type 
that Koresh possessed into automatics. Aguilera failed even to allege 
that Koresh purchased parts from this company which would have allowed 
the conversion of semiautomatics into automatics. Nowhere in the 
affidavit is there evidence that Davidians were manufacturing their own 
automatic sears, or modifying the lower receivers of semiautomatics, 
both of which would have been violations of firearms laws.
    The affidavit was misleading in that it falsely referred to 
``clandestine'' publications. The affidavit reported that in June 1992, 
a witness had ``observed at the compound published magazines such as, 
the Shotgun News and other related clandestine magazines.'' \37\ Far 
from clandestine, Shotgun News has a circulation of about 165,000. 
Subscriptions are available by mail or telephone. The Austin, TX ATF 
office--Aguilera's home office--was a subscriber.
    \37\ Aguilera Affidavit at 14.

              f. findings concerning the atf investigation

    1. The ATF's investigation of the Branch Davidians was grossly 
incompetent. It lacked the minimum professionalism expected of a Federal 
law enforcement agency. Among the failures of the investigation were:
        <bullet> The failure to accept Koresh's offer to inspect the 
        firearms held at the Branch Davidian residence. It is unclear 
        why the ATF did not accept the offer to conduct a compliance 
        inspection of Koresh's firearms. What is clear is that the 
        agents' refusal of Koresh's invitation was the first of a series 
        of instances in which the ATF rejected opportunities to proceed 
        in a non-confrontational manner. The agents' decision to decline 
        Koresh's offer was a serious mistake.
        <bullet> The failure to recognize obvious breaches of 
        surveillance security. Some of these breaches were so serious 
        and obvious that they should have been recognized by the ATF 
        agents and commanders involved, and should have become the basis 
        for modifying the nature of the surveillance.
        <bullet> The failure to analyze intelligence gathered during the 
        undercover operation, including more than 900 photographs of 
        activities around the Branch Davidian residence. These 
        photographs could have led to the development of critical 
        intelligence regarding the habits and movements of the 
        Davidians, and Koresh in particular.
        <bullet> The premature termination of the undercover operation. 
        The operation's failure to develop useful intelligence after 8 
        days of continuous surveillance should not have led to the 
        termination of the surveillance, but rather to its prolongation. 
        Given the potential for danger to agents and those within the 
        residence, and the dearth of intelligence, the decision to end 
        around-the-clock surveillance was seriously flawed.
    2. While the ATF had probable cause to obtain the arrest warrant for 
David Koresh and the search warrant for the Branch Davidian residence, 
the affidavit filed in support of the warrants contained numerous false 
statements. The ATF agents responsible for preparing the affidavits knew 
or should have known that many of the statements were false.
    3. David Koresh could have been arrested outside the Davidian 
compound. The ATF deliberately chose not to arrest Koresh outside the 
Davidian residence and instead determined to use a dynamic entry 
approach. In making this decision ATF agents exercised extremely poor 
judgment, made erroneous assumptions, and ignored the perils of this 
course of action which they should have foreseen.

                           g. recommendations

    1. Whenever it is feasible to achieve its objectives, the ATF should 
use less confrontational tactics. The ATF had an opportunity to search 
the Davidian residence at the invitation of Koresh. Koresh was off the 
property and subject to the capture of law enforcement on numerous 
occasions before the raid. The ATF should have taken advantage of these 
less confrontational opportunities. The ATF should pursue such 
alternatives in the future.
    2. Federal law enforcement agencies should verify the credibility 
and the timeliness of the information on which they rely in obtaining 
warrants to arrest or search the property of an American citizen. The 
affidavits on which the arrest and search warrants of Koresh were 
ordered contained information provided to the ATF by informants with 
obvious bias toward Koresh and the Davidians. In addition, much of the 
information was stale, based on experiences years before the 
investigation. The ATF should obtain fresh and unbiased information when 
relying on that information to arrest or search the premises of the 
subjects of investigations.
    3. The ATF should make every effort to obtain continuous and 
substantial intelligence and should ensure that the efforts to obtain 
such intelligence are not hindered by breaches of security. The ATF had 
a broken and insecure intelligence operation. Gaps in the surveillance 
and breaches of the security of undercover operations jeopardized the 
investigation and the raid. The ATF should take precautions to ensure 
that these breaches do not occur in the future.
    4. If the false statement in the affidavits filed in support of the 
search and arrest warrants were made with knowledge of their falsity, 
criminal charges should be brought against the persons making the 

To see more documents/articles regarding this group/organization/subject click here.