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
powder.\4\
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\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].
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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.
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\5\ Treasury Department Report at 24.
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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\
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\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.
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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.
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\9\ Hearings Part 1 at 332.
\10\ Id.
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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.
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\11\ Treasury Department Report at 21, B-182.
\12\ Id. at 26.
\13\ Id. at 27.
\14\ Id. at 27-29.
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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.
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\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.
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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
operation.
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\
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\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.
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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.
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\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.
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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\
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\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.
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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.
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\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)).
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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.
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\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
separately.]
\32\ 26 U.S.C., Ch. 53.
\33\ Aguilera Affidavit at 5.
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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\
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\34\ Aguilera Affidavit at 12.
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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\
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\35\ See 26 U.S.C. Sec. 5845.
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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.
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\36\ Treasury Department Report at 23-24.
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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.
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\37\ Aguilera Affidavit at 14.
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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
statements.
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