DOJR - IV. Specific Issues Investigated (Part O)

DEPARTMENT OF JUSTICE REPORT ON INTERNAL REVIEW REGARDING THE RUBY RIDGE HOSTAGE SITUATION AND SHOOTINGS BY LAW ENFORCEMENT PERSONNEL

IV. SPECIFIC ISSUES INVESTIGATED

O. Alleged Failure of USAO to Notify the Defense of Brady Material and Other Important Information

1. Introduction

When the Weaver trial began, the U.S. Attorney's Office in Boise ("USAO"), assisted by governmental investigative agencies, had compiled and produced a large volume of materials in discovery including thousands of pages of documents, transcripts, numerous audio and video tapes, photographs and a multitude of investigative reports. In addition, the USAO had permitted defense counsel to inspect the evidence developed during the case investigation.

Despite its efforts to comply with its discovery obligations and the Brady rule, a number of incidents occurred during the trial which cast doubt on whether the Government had been totally forthcoming in its responses to the defense. These incidents included: its resistance to produce FBI and Marshals Service manual provisions and personnel files subpoenaed by the defense; the failure to disclose all facets of the compensation arrangement between the BATF and a confidential informant; the untimely discovery of critical FBI notes relating to the interview of Deputy Marshal cooper; the failure by Assistant U.S. Attorney Howen to notify the defense of potentially exculpatory information learned during an interview of Idaho State Police Captain Neal; the untimely production of crime scene photographs and disclosure of the circumstances surrounding how the photographs were taken; and the untimely production of materials associated with the FBI's shooting incident report.

2. Statement of Facts

a. Defense Subpoenas for FBI and Marshals Service Manuals and Personnel Files

On November 3, 1992, defense counsel Charles Peterson wrote a letter to Assistant U.S. Attorney Howen identifying five classes of documents that he considered encompassed by the discovery stipulation executed by the parties. Two of these classes were "[a]ny manuals, memorandums or directives outlining the procedures and standards for developing operational rules of engagement in the field' and '[a]ny FBI arrest protocols or instructions." Peterson requested Howen to advise him if he did not intend to produce any of these materials. [FN1591]

Howen responded in a letter dated November 9, 1992 and informed Peterson that he intended to provide him "with these materials that are discoverable under rule 16 and our stipulation regarding pre-trial exchange of Jancks Act, Grand Jury and Rule 26.2 materials." According to Howen, the "first prerequisite" to production was that he have possession of the documents and that Peterson have a right to the documents under Rule 16 or the discovery stipulation. Howen then wrote, "I am unaware of any case law, statute or rule that compels me to affirmatively create and/or find documents that may be in the possession of another law enforcement agency" [FN1592] Peterson did not respond to the November 9, 1992 letter from Howen nor did he file a motion to compel production of the materials identified in his November 3, 1992 letter.

On April 13, 1993, which was the first day of the Weaver trial, the defense filed its Third Ex Parte Application for Issuance of Subpoenas and Payment of Costs and Fees. In that document, they requested the court to issue subpoenas for numerous individuals and documents including:

4. Federal Bureau of Investigation, (1) for the production of any and all FBI manuals which describe procedures or establish standards and rules for the apprehension of fugitives, arrest of subjects or the use of force. By this request the defendants intend to reach the publications used by members of the FBI which describe what the government's witnesses have testified to as the 'standard rules of engagement' for that agency, and any other policy or procedures used by the agency and its Hostage Rescue Team for the apprehension of fugitives, arrest of subjects or the use of force; and (2) the personnel files in its control for Special Agent Lon Horiuchi, or Deputy United States marshals William Degan, Arthur Roderick, and Larry Cooper.

The defense also requested similar manuals from the U.S. Marshals Service as well as any personnel files of Horiuchi, Degan, Roderick and Cooper that were in their control. [FN1593] On April 14, Judge Lodge issued the subpoenas requested in the ex parte order. However, he modified the order drafted by the defense by adding the following sentence, "[p]ersonnel records to be viewed only by defense counsel and not turned over to third parties or the media." [FN1594]

By oral motion on April 15, defense counsel Peterson sought to compel the production of the personnel files and the manual provisions that the court had ordered the previous day. In particular, Peterson was seeking the personnel file of Deputy Marshal Cooper and the marshals Service manual provisions to assist in his cross examination of Cooper. [FN1595] Peterson characterized the issue as a government failure to comply with discovery and argued that production of these materials was required by the recently issued subpoenas.

Howen responded that he could not be expected to respond to the subpoena when he had not been served with it nor had the documents in hi possession. In addition, Howen told the court that he would expect counsel at the FBI and the Marshals Service to handle the responses to the subpoenas. However, he argued that he was aware of no court that would allow defense counsel to have direct access to personnel files of witnesses. [FN1596] Assistant U.s. Attorney Lindquist informed the court that the FBI case agent had told him that they received the subpoena and that FBI Headquarters had been contacted. With respect to the Marshals Service subpoena, Lindquist stated that he had now knowledge but would take steps to ensure that the Marshals Service responded to it. [FN1597]

The court acknowledged that the subpoena for the personnel files raised privacy issues and that further restrictions might be necessary but encouraged the government to facilitate the response to the subpoenas even if the documents were not within their control. [FN1598] Thereafter, defense counsel Spense agreed to inform the government of the specific requests. [FN1599]

The Marshals Service provided the applicable Marshals Service manual provisions to the USAO on April 16. In its letter identifying the applicable provisions, the Marshals Service requested that the manuals be placed under seal and that access be restricted to the prosecution and the defense. [FN1600

On April 23, the defense moved to hold the government in contempt or to compel it to produce the requested manuals and personnel files. As of that date, the government had filed nothing in response to the subpoena. [FN1601 In court, defense counsel Nevin stated that he had been advised that the subpoenas had been served and that Howen had told him that he had the Marshals Service materials but did not want to produce them. fn 1602 Howen responded that he viewed this issue as a discovery dispute [FN1603 and that he was in the process of drafting a motion for a protective order. He disputed that the subpoenas seeking the personnel files had been served although he acknowledged that he learned that day that the subpoenas for the manuals had been served. Howen then referenced the November 1992 communications with defense counsel Peterson regarding the manuals and argued that Peterson should have sought to compel compliance earlier. [FN1604 Nevin responded that the motion to compel was directed to the recently issued subpoenas not prior discovery requests. [FN1605 Thereafter, Lindquist announced that he had the requested Marshals Service personnel files but could not relinquish them without Marshals Service approval. 1606

Judge Lodge responded that he wanted to assure himself that the subpoenas had been served and then wanted the government to respond either by complying or by filing a response. Judge Lodge stated that it did not matter to him if the response was filed by counsel for the Marshals Service or the FBI, but he expected the Assistant U.S. Attorneys, as officers of the court, to assist "in moving those matters along." If the response to the subpoena was not immediate, Judge Lodge said "this trial will come to a halt." Moreover, if the government had authority that the defense has no right to the personnel files, he wanted it to inform the court of the authority. The court also rejected the government's argument that this was a discovery issue and expressed frustration over the ambiguity of the USAO as to whether it represented the FBI and Marshals Service on this issue. 1607 Judge Lodge then ordered the manuals produced "forthwith", but reserved judgment on the personnel files and requested assistance from counsel on the issue "because the Court was concerned with it at the time the Court issued it." 1608

Later that day, Lindquist informed the court that the FBI had still not received a subpoena for the Horiuchi personnel file but that it was working on its response and that the USAO was drafting a response concerning whether the personnel files could be produced. With regard to the Marshals Service manual, it was agreed the defense would have access to it, but that the government would identify sensitive portions and then the court would rule as to whether they could be used at trial. 1609 Howen then told the court that he would be representing the government on this issue and apologized if he had misled the court on this issue. 1610

On April 23, the USAO moved for a protective order objecting to the subpoenas seeking the personnel files and the manuals. In that motion, the USAO repeated many of the previous arguments it had raised. In addition, it argued that it was outside the supervisory power of the court to order the production of the personnel files, that the appropriate procedure was to have a law enforcement officer familiar with the issues to conduct at "Henthorn" review. 1611 and that the government had ordered those reviews to be done. It also advised the court that the subpoenas had not been served on either agency and that the USAO had the Marshals Service personnel files, but not the FBI file. In addition, the government had requested the FBI and the Marshals Service to review the manuals for sensitive information and, if located, the government would request in camera review. 1612

On April 26, Special Agent John S. Bradford, the Principal Legal Adviser of the Salt Lake City Field Office, called Supervisory Special Agent Lucy Ann Hoover of the Civil Litigation Unit = ("CLU") of the Legal Counsel Division at FBI Headquarters in Washington, D.C. and requested her to conduct a Henthorn review of the personnel file of Horiuchi. Bradford informed Hoover that Assistant U.S. Attorney Warren Derbridge from the USAO had informed him that an ex parte order had been issued for the subpoena but that the USAO had not yet received the subpoena. 1613 According to Brian Callihan, the U.S. Marshals Service sent that subpoena to the FBI on April 26. 1614

Also that day, U.S. Attorney Ellsworth telephoned Joseph Davis, Assistant Director of the Legal Counsel Division at FBI Headquarters to discuss the FBI response to the defense subpoena for the FBI manual provisions and the Horiuchi personnel file. He told Davis that the court wanted the manual produced as soon as possible. On April 27, Davis wrote to Beau McFarland that he did not know the details of this matter, but assured Ellsworth that he would investigate and provide whatever assistance was needed. Davis then requested McFarland to consult with appropriate CLU personnel to insure that the FBI was not in contempt and that appropriate arguments and objections were made to any damaging releases. 1615

On April 28, someone, presumably Beau McFarland, forwarded the April 27 memo from Davis to Clawson in CLU I and wrote, "Please find out the status of this matter and advise me this morning. I believe Lucy Hoover is assigned to it now." Later that day, Clawson responded to the routing slip by expressing surprise at Ellsworth's comments since the "SU PLA processed the responsive manual provisions and provided them to the AUSA on Monday, 4/26." With regard to the request for the personnel file, Clawson stated that the FBI had still not been served but after consulting with the Assistant U.S. Attorney had decided to treat it as a Henthorn request. Clawson indicated that they would file a motion to quash if the subpoena for the personnel file was ever served. 1616

Sometime in late April 1993, the FBI gave the USAO a copy of the requested manual provisions. 1617 The next day, Howen wrote a letter to defense counsel Peterson and enclosed FBI manual provisions that were responsive to the subpoena.1618 On April 29, Hoover sent the completed Henthorn review of the Horiuchi personnel file to Howen. 1619 Hoover had found no exculpatory or impeachment information in the file.

The defense objected to the government's motion for a protective order on April 30, 1993. At that time, the defense stated that it had received the Marshals Service training manuals and that the USAO had the Marshals Service manuals and the Marshals Service personnel files. With regard to the FBI materials, the defense said that the FBI had produced the training manuals but not the personnel manual to the USAO. The defense argued that pursuant to the terms of the discovery stipulation, the government was obligated to produce exculpatory material and thus, they should have reviewed and produced any such information contained in the personnel files without the need for an additional request. The defense admitted that their request for the complete personnel files may have been too broad, but believed that the court's modifications to its order adequately addressed the privacy concerns. 1620

On May 10, the government filed its Thirteenth Addendum to its Response to the Discovery Stipulation in which it included the Henthorn certifications for Horiuchi, Roderick, Cooper and Degan. 1621 Defense counsel Peterson raised the personnel file issue again in court that day and repeated his argument that the defendants were entitled access to the personnel files. Lindquist indicated that neither the FBI nor the Marshals Service had received a subpoena for the personnel files 1622 and that he and Howen had made it clear to defense counsel that the personnel files and manuals could only be obtained by subpoena. 1623 The court opined that the procedure set forth in the Henthorn case was controlling and the complete personnel file did not need to be produced unless such production was necessary to satisfy the Government's disclosure obligations. 1624

Later that day, defense counsel Spence and Nevin sent Howen a letter requesting to review the personnel files of Roderick, Hunt, Thomas, Norris, Cooper, Degan and Horiuchi and detailed a list of "matters and issues" for which they were looking in these files. Spence also requested such information from the personnel files of all federal agents that the government intended to call as witnesses. 1625 Howen answered that letter on May 12, and refused to provide the information because the request was untimely and exceeded the scope of information that was required to be produced under applicable federal law. 1626

On May 17, the court ruled on the personnel file issue. It noted at the outset that even though the personnel files were not specifically addressed in the discovery stipulation, the federal prosecutor, under Ninth Circuit law, has the obligation by virtue of his oath of office to produce Brady material without a court order. Furthermore, the court held the "[c]ounsel for the government should have undertaken this search in advance of trial, on their own initiative." It approved the procedure proposed by the government which was to have the law enforcement agent knowledgeable about the issues in the case to review the files for Brady material. If Brady material did not exist, the defense was to be informed; if Brady material was located, it was to be presented to the defense; and if the material was questionable, the court was to conduct an in camera review and make a determination as to whether it should be produced. The court ordered that this review should be done no later than two days before the witness is to testify and with regard to those witnesses who have already testified, the review should be conducted "post haste." 1627 Later that day, defense counsel Spence stated that the only personnel file that they needed was the file of Lon Horiuchi. 1628

With regard to the manual provisions, Howen recalls that the Marshals Service made the requested materials available almost immediately but that the FBI did not make its provisions available until later. However, Howen did not find the content or the speed of the FBI response to be unreasonable. Indeed, one of his main recollections about the subpoena for the manual was that the response that the FBI gave was too broad and mistakenly included sensitive portions of the manual. 1629 He also agreed with their resistance to the subpoena for the personnel files and concurred that there was no authority that would support giving the defense access to those files. 1630 His only dispute with the FBI on this issue was that they did not provide him some assistance in fashioning a response to the subpoena. 1631

Lindquist did not recall having any significant involvement in obtaining the subpoenaed manuals and personnel files and recalled the matter being handled by Howen. 1632 Although Lindquist recalled that the Marshalls Service quickly produced the requested materials, he had little recollection of what actions that the FBI took in this regard. 1633

b. Financial Compensation of Informant Fadeley

It was the gun sale between Weaver and a government informant that provided the basis for the initial criminal charges brought against him. The Government also planned to introduce statements that Weaver had made to the informant during four taped conversations as evidentiary support for its conspiracy theory. After informal attempts to learn the identity of the informant had failed, 1634 Weaver's attorneys requested this information in a pretrial motion as well as any evidence that would affect the bias or credibility of the informant including "any promises of consideration given to the informant." 1635 On March 28, 1993, the government responded to this motion and refused to provide the requested information citing the untimeliness of the motion and the risks that disclosure posed on the informant. 1636 Thereafter, on April 12th, the court ordered the government to provide the requested information.

On April 13, the first day of trial, the Government identified the informant as Kenneth Fadeley. With respect to any compensation paid to Fadeley, the government stated, "Mr. Fadeley [sic] has received reimbursement for expenses in the approximate amount of $500.00, but no salary." 1637 Before filing this addendum, Assistant U.S. Attorney Howen conferred with BATF Agent Herbert Byerly, who informed him that Fadeley had just been paid expenses. 1638

Kenneth Fadeley began testifying on April 19 and continued into April 20 at which time defense counsel began cross examining him. Toward the end of the cross examination, defense counsel inquired about the compensation that Fadeley had received for his work on the Weaver matter. Fadeley testified that when he works for BATF, he is paid for expenses which would include such items as gas and food. He could not recall how much money BATF paid him for expenses in 1986, but agreed that it was greater than $1.00, but less than $10,000.1639 From 1987-1989, BATF paid Fadeley for "just" expenses, but he was unable to recall the amount paid. 1640 Later, after Fadeley agreed that he had not assisted the government in this case for money and that BATF had never paid him any type of salary other than the payment of expenses, the following exchange occurred:

Q ......When you first started working for ATF, were you told that you would be paid on a case-by-case basis?

A I was told I'd be paid expenses for my work.

Q Expenses. Were you told that you'd get paid after a case was made against a person?

A After we concluded a case, there may be a monetary settlement, possibly.

Q Okay. "After we concluded a case, there may be a monetary settlement"? Oh, let's talk about this case then. First of all, in order to conclude a case, you would have to get a guy to trial in the case, is that right?

A I would assume so.

Q And you would assume that not only would you have to get him convicted, right?

A If he was guilty.

Q Well, if you don't get a conviction, you don't get any money; isn't that right?

A I would assume so.

Q And that's not just your assumption, sir, that's your understanding about this case too, isn't it? If Randy Weaver gets acquitted of this gun case, you don't get paid, right?

A I guess so. 1641

Following this exchange, Fadeley testified that he did not know how much money he would be paid if Weaver were convicted and insisted that the amount of any future award had no impact on his testimony. 1642

On April 20, defense counsel Spence moved in open court to strike the testimony of Fadeley and to dismiss all counts of the indictment based upon the Fadeley testimony. Spence argued that Fadeley was a contingent fee witness and that it was unlawful to permit such testimony to be used at trial. 1643 Howen denied that Fadeley was a contingent fee witness and argued that Fadeley's testimony regarding any future compensation that he might receive was partially based on his confusion regarding money Fadeley might receive in the future under the witness protection program to compensate for "any differential or loss to him in either his job, his home, or other items."1644 Howen then represented that BATF Agent Byerly, who communicated with Fadeley regarding financial compensation, would testify that Fadeley was paid for expenses and then was told that he "could be held for an award at a later time."1645 Howen maintained that such an arrangement did not constitute a contingent fee agreement. Thereafter, the court took the matter under advisement but declined to declare a mistrial. 1646

The government recalled Byerly to address the Fadeley compensation issue. Byerly testified that Fadeley was neither an agent nor a salaried employee of BATF. He explained that he had made an agreement with Fadeley whereby Fadeley would be reimbursed for his necessary investigative expenses associated with attending the Aryan Nations summer conferences in 1986, 1987 and 1989 and that for the entire period that Fadeley was assisting BATF, he was paid expenses of $445. In addition, Byerly testified that he had informed Fadeley that he could receive an award after a case was completed. Byerly stated, "I explained to Mr. Fadeley that at the end of the case, whatever it might be, at the end of the judicial proceedings that I would submit his name to my supervisors for an award." 1647 According to Byerly, his recommendation would be reviewed by several layers of supervisors who could approve, increase or reduce the award. Byerly insisted that the award was not influenced by the outcome of a case and that he had never informed Fadeley otherwise. 1648 Indeed, Byerly testified there were instances where informants received awards for work on cases that were never prosecuted. 1649 In another case in which Fadeley assisted but which was not prosecuted, Byerly recommended an award of $2,500. 1650 He said that he anticipated that he was going to recommend that Fadeley receive an award of $3,500 for his work on the Weaver case. Byerly insisted that Fadeley was mistaken if he believed that the award was contingent upon there being a conviction in the case. 1651

On April 21, defense counsel filed a motion to strike the Fadeley testimony arguing that it was improper because Fadeley had been promised a contingent fee if Weaver were convicted. In addition, they complained that the prosecutors had an obligation to disclose this arrangement to the defense prior to trial but had failed to do so. Moreover, they argued that the government's denial that Fadeley had been paid any fee constituted misconduct. 1652 In its response, the government denied that a contingent fee arrangement existed between BATF and Fadeley and then repeated its argument that Fadeley's responses were affected by his confusion over financial benefits he might receive under the witness protection program. Howen also denied having prior knowledge of the possible monetary award from BATF. 1653

Judge Lodge ruled on the motion to strike on May 17 and found that although "Fadeley believed that he was involved in a contingency fee arrangement," the testimony of agent Byerly indicated that the government did not intend for a contingency fee arrangement to exist. 1654 Consequently, the circumstances did not exist to warrant the striking of the Fadeley testimony. However, Judge Lodge ruled that a cautionary instruction regarding how to evaluate the credibility of Fadeley would be appropriate. 1655 On May 19th, the Government informed the defense of the amounts that Fadeley had received for expenses, and awards and the amount of the proposed cash award. 1656

Howen told investigators that he was terribly surprised and embarrassed by the Fadeley disclosure. 1657 He insisted that the first he learned of the possible award was when defense counsel elicited it on cross examination. Prior to that time, Howen understood from Byerly that Fadeley received no salary and had only received reimbursement for expenses. Nothing seemed unusual about that arrangement to Howen for several reasons: Fadeley wanted to assist law enforcement because his close friend on the Spokane Police force had been killed while on duty; Fadeley viewed his cooperation as a civic duty; and Fadeley simply enjoyed undercover work. Howen could not recall whether he ever questioned Fadeley about the compensation issue but stated that if Fadeley had disclosed the possibility of a future award, he would have disclosed it to the defense. Although this was the first time that Howen had heard of such future awards, he admitted that he probably should have asked Byerly more probing questions concerning Fadeley's understanding regarding the possibility of future compensation. 1658

Howen questioned Byerly again after Fadeley had testified. Based on this conversation, Howen understood that the future award was not contingent upon convicting Weaver, but rather, upon the recommendation given by Byerly. This recommendation was influenced by the assistance that Fadeley had provided on all the cases, including Weaver, in which he was involved. Byerly could not explain why he had failed to disclose the possible award earlier. Howen said Byerly was very apologetic for not disclosing the understanding to Howen. 1659

Byerly said that Howen had met with Fadeley on at least two occasions when Byerly was not present and, as a result, "was under the false assumption that AUSA Howen had discussed with [Fadeley] any financial arrangements that he...had discussed with ATF." 1660 Byerly insisted that he did not intentionally withhold information about the award from Howen and that if Howen had asked whether any compensation would be paid at the end of the case, that he would have told him about his intention to recommend an award for Fadeley. However, from Howen's questions, Byerly thought that Howen was seeking information about monies already paid to Fadeley rather than monies that might be paid in the future. 1661

When Department of Treasury investigators questioned Fadeley about his trial testimony, he told them that he had misspoken regarding his understanding of whether he would receive a monetary payment in the Weaver matter. Fadeley stated that Byerly had told him that "there would be some unspecified payment at the end of a case" but that the payment was never linked to whether a case went to trial or a conviction being obtained. It was Fadeley's understanding that the payment would be based upon the work that he performed and the information that he obtained in the case. Fadeley attributed his misstatement to being "tired" and having lost his "focus and attention."1662 Fadeley stated that he met with Howen on many occasions before testifying at trial. At none of these sessions did Howen question him about the compensation he was receiving. Thus, Fadeley was surprised when he was questioned about this topic by the defense and was disappointed that Howen had not questioned him on redirect to clarify his understanding regarding any future payment he might receive. 1663

c. Late Production of the Halley Notes

After Deputy Marshals Cooper and Roderick were escorted from Ruby Ridge, they and Deputy Marshals Norris, Hunt and Thomas were taken to a condominium on Schweitzer Mountain to rest. On the afternoon of August 22, FBI Special Agents Joseph Venus and George Halley interviewed Cooper at the courthouse at Bonners Ferry, Idaho. According to Calley, Venkus asked the questions while Calley was responsible for taking notes. Calley told investigators that what started as a question and answer style interview, evolved into Cooper giving a narrative statement of events. Calley complained that he had difficulty keeping up with Cooper and, as a result, he left blanks in his interview notes with the intent of returning later to fill in the missing words. 1664 Shortly after the interview, Calley prepared a one or two page handwritten summary of the sequence of events recounted by Cooper. Then, using his handwritten notes of the interview, Calley prepared a rough draft of the FD-302 of the interview. 1665

As one of the three marshals involved in the August 21 shootings at Ruby Ridge, the testimony of Cooper was critical to both the prosecution and the defense. The FD-302 of Cooper and the handwritten notes of that interview became very controversial documents in the Weaver case because certain entries in those documents were in error and conflicted with the subsequent testimony of Cooper. 1666 Cooper first discovered these errors when he reviewed a draft of the document. 1667 For example, Cooper insisted that he had not shot Sammy Weaver. He consistently maintained that, after Harris had fired the shots that hit Degan, he fired a three-round burst at Harris, who fell to the ground "like a sack of potatoes." Cooper then directed his weapon on Sammy, but did not shoot him because he could not see if Sammy was carrying a gun and because Sammy had not fired at Degan. Later, Cooper fired a second three-round burst at no particular target, but in the direction from which he had last received fire. After he took these shots, Cooper saw Sammy running out of view and up the trail leading to the cabin. 1668

Calley insisted to investigators that he never recalled Cooper ever stating or suggesting that he shot Sammy Weaver. 1669 However, in his handwritten notes of the interview, Calley wrote that Cooper said that after he had fired his second round burst of three shots, he saw Harris proceed on the trail. Halley told investigators that this was an error on his part and that Cooper had said that it was Sammy Weaver, not Harris, that he saw going up the trail. 1670 Indeed, Venus confirmed that Cooper was convinced that he had shot Harris. 1671 Calley told investigators that Cooper did not waiver when recounting the events of August 21, 1992 and to the extent that mistakes existed in the FD-302s, these mistakes were his fault. He attributed these errors to either fast note taking or plain error in writing his notes. 1672

Calley prepared two final FD-302s of the Cooper interview; the first was dated August 29, 1992; and the second was dated August 30, 1992. He placed his interview notes and the rough drafts 1673 in a 1-A envelope 1674 and sent them to files. According to Venkus, Calley began taking notes of the Cooper interview on a yellow note pad. When Calley ran out of paper, Venkus gave him a white note pad on which to continue his notes. Thereafter, Calley drafted that 302 of Cooper on a white note pad. Calley placed all of the Cooper interview notes that were written on yellow paper in the "1-A" envelope belonging to the Cooper 302 file. However, he placed that portion of the interview notes that were written on white paper together with the handwritten draft of the Cooper 302 in another file folder. Venkus speculated that Calley forgot that he had used two different kinds of paper in the Cooper interview and, thus, assumed by placing all of the yellow sheets in the 1-A file that it constituted a full set of interview notes. 1675

On September 3, 1992, the USAO requested the FBI to produce "[a]ll 302's involving the interviews of Deputy Marshals Hunt, Norris, Thomas, Cooper and Roderick, together with draft 302's, altered 302's and notes of interviewing agents." 1676 Before the trial began, the USAO produced the two final Cooper FD-302 interview statements 1677 and the 12-page set of rough notes of the August 22 interview of Cooper. 1678

In late May 1993, 5 weeks after the trial had started, Calley discovered the missing portions of his interview notes and the draft 302 of Cooper in his desk. 1679 Calley immediately informed Venkus who contacted Howen. Thereafter, Calley was told that Howen would call him within 30 minutes to discuss the notes. It was one to two days later that Deputy Marshal Masaitis requested Calley to come to the federal building to explain the notes and why they were discovered late. Calley stated that although Howen was present, he appeared preoccupied with other matters and left most of the interview to Masaitis. 1680

Howen believed that Dillon or one of the case agents informed him of the discovery of the notes. Dillon told Howen that Calley had found the notes in his desk and had forgotten to place them in the 1-A envelope belonging to the Cooper FD-302. Howen recalled that Dillon indicated that if you examined the notes and compared them with what had already been produced, it was obvious that the notes were the missing parts of what had previously been produced. Howan stated that his initial reaction to the disclosure was that he could not believe it. Because of the demands of the trial, Howen produced the notes to the defense without reviewing them closely. 1681 Neither Howen nor Dillon thought that Calley intentionally concealed these notes. 1682 Howen recalled Calley being extremely apologetic. Howen believed that it was just an "honest mistake." 1683

On May 21, Howen produced the newly found Calley notes to the defense. 1684 This production occurred several days after the Fadeley compensation controversy had erupted and the same day in which Howen's interview with Captain David Neal was disclosed. 1685 Defense counsel Spence argued that some of these notes were written by Cooper, not Calley, because the handwriting was different and because it was not written in the third person. 1686 The court then stated:

The Court is going to say that the Court is very disturbed by what has happened here or what appears to have happened here, because in this instance, the Court does not think counsel should make representations to the Court that they do not know. If these are, in fact, partly the notes of Mr. Cooper, that is the way they should be referred to. If they are the notes of someone else, they are the notes of someone else. They should have been disclosed as soon as they were found, and when they are found in the desk drawer, that seems to me like maybe it is one of the most logical places to be looking, whether they be Mr. Cooper's notes or somebody that has been interviewed by Mr. Cooper. The blame probably trickles down beyond the U.S. Attorney's office. 1687 The court then expressed extreme concern over the untimely disclosure of Howen's interview with Captain Neal and ruled that he was continuing the trial until Monday, May 24 to permit the defense time to interview Captain Neal. 1688

When the trial resumed on May 24, defense counsel Spence argued that Cooper should be returned to the stand in light of the recent production of the Calley notes which Spence argued were partially authored by Cooper. Howen objected to this request and represented that all of the notes were written by Calley, not Cooper, thus nothing could be accomplished by recalling Cooper. The court took the matter under advisement. 1689

d. Neal Notes

A pivotal issue in the Weaver trial was who fired the first shot at Ruby Ridge on August 21, 1992. The government argued that it was Kevin Harris while the defense maintained that it was Deputy Marshal Roderick when he shot the Weaver dog Striker. Because of the importance of this issue to the defense case, any information that the government had regarding this issue, including pertinent statements made by Roderick, was obviously important to the defense and required to be produced under the Brady and Jencks doctrines.

On April 23, 1993, the court recessed the trial until May 3rd. During this recess, Howen attended to matters that he had been unable to reach earlier, including the interviews of some of the officers on the Critical Response Team ("CRT") of the Idaho State Police. 1690 The next day, Howen interviewed Captain David Neal, commander of the CRT, and other members of the CRT who rescued the three marshals on the night of August 21, 1993. 1691 No other investigative team member accompanied Howen on these interviews. 1692

Neal stated that during the interview, Howen was interested in whether it was the normal practice of the CRT to wear camouflage clothing when responding to an incident. Later, Neal told Howen that the first thing that Roderick said to him was that, "I shot the dog." Based on his discussion with Roderick on the night of August 21, Neal told Howen that it was his impression that the shot fired by Roderick, which killed the dog, was the first shot fired at the Y. According to Neal, Howen took notes and remarked that this information would have to be given to the defense. 1693

When investigators from this inquiry questioned Howen about the Neal interview, he recalled that Neal had told him that when he had questioned Roderick about what had occurred, Roderick had responded that he shot the dog. Howen did not interpret the Neal statements as indicating that Roderick had communicated that he had shot the dog first before any other shots were fired. 1694 However, Howen acknowledged that there was the "potential" for one to argue that perhaps Roderick was indicating that he had shot the dog first. To clarify this issue, Howen planned to elicit testimony from a few CRT officers which would shot that the Roderick comment did not indicate the sequence of the shots fired, but rather, was simply an admission by Roderick that he had shot the dog. Howen believed that such an approach satisfied his obligations under the Brady doctrine. 1695 He recalled informing Lindquist of the substance of the substance of the Neal interview and of the possibility that the defense would attempt to undermine the Roderick testimony regarding the sequence of the shooting. 1696

Late in the afternoon of May 20, almost four weeks after the Neal interview, Howan informed defense counsel of the substance of the interview and provided them with a copy of his interview notes. At that time, Roderick had begun to testify. On the next day, defense counsel Nevin argued to the court that this disclosure was "pivotal" to the defense case 1697 and was in distinct conflict with the government's argument that Kevin Harris fired the first shot. 1698 Thereafter, defense counsel requested the court to recess the proceedings and to permit them the opportunity to interview Neal to determine the full extent of his testimony. 1699 Howen responded that he had disclosed the names of the CRT members long before the trial started and that he had not had an opportunity to interview them until the recess in April. 1700 Howen then stated:

As counsel states when I talked to. . . Captain Neal, he made certain statements to me about Mr. Roderick coming forward. He was not able to put them in a sequence, his best recollection was because they were standing right next to the dog. Mr. Roderick made a comment that he had shot the dog, and then there was an inquiry about how Mr. Degan had died, and Mr. Degan had died over here. 1701

Howen then explained to the court that he was making the disclosure now because he had realized that he might not be calling Neal as a witness and "felt compelled to reveal this matter to defense counsel so they could examine him, which is what I did yesterday." 1702 Lindquist represented to the court that Neal had not indicated to Howen any chronology as to when he shot the dog and that the first time that Howen had heard this information was during the interview. Although Lindquist conceded that the information disclosed in the Neal interview constituted Brady material, he disputed that it was "pivotal." 1703

After expressing its concern over learning about the newly discovered notes of Special Agent Calley, the court stated,

The thing that is even more disturbing to the Court is whether or not this chronology of events with Mr. Neal was known about three weeks ago, because obviously we are talking about Brady material rather than Jencks [sic] material. It is exculpatory if it is even questionable about what was said by Mr. Roderick shortly after the event. It is critical to a fair hearing to have this ferreted out and known about before there is any further direct or cross-examination by Mr. Roderick. We have asked these jurors to come in here and we are taking two months out of their lives. Sometimes we pass off as cavalier the time of judges, the judges being the jurors, and it is totally inexcusable when we have to do what the Court is going to have to do today, and that is delay this trial over until Monday.

The Court has felt during this trial that there has been a lot of pressure on counsel. That there have been all kinds of things coming onto the Court's desk from both sides almost every day, from activities that you do through the night, and it is apparent that some things can be overlooked, some things may be not seen as important as they are, but this to the Court is a very embarrassing situation. The Court wants both sides to take stock of what has happened here and make doubly sure that this does not happen the rest of this trial. [FN1704] On May 21, defense counsel Peterson and an unidentified individual interviewed Captain Neal. Neal described his rescue of Roderick and the statement that Roderick made that he had shot the dog. Neal stated that he was careful to explain that it was his impression that Roderick shot the dog first, but that Roderick never said, nor admitted that he shot the dog first. Thereafter, defense counsel told Neal that they would be calling him as a witness. [FN1705]

According to Howen, he made the disclosure to the court and the defense on May 20, because he realized that, due to pressure from the court to complete the trial, he was not going to have time to call all of the witnesses that he had originally planned. He decided not to call Neal as a witness but recognized that the defense might want the opportunity to question Neal. When asked if he considered the Neal interview to constitute Brady information, Howen responded, "[c]lose to it. Yeah." [FN1706} He explained that he had not disclosed the information sooner because he had planned to question Neal on direct and to make it clear that the Roderick statement did not relate to the sequence of the shooting. He believed that bringing such information out on direct examination complied with Brady, especially when he had already informed the defense that Neal was a potential witness and the defense could have interviewed him. [FN1707]

Lindquist recalled Howen calling him shortly after completing the Neal interview, relaying the substance of what Neal had said and then expressing the view that perhaps the information could constitute Brady material. Lindquist, who could not recall exactly what Neal was reported to have said about the Roderick statements, opined to Howen that they should treat the statements as Brady and produce them to the defense. He recalled Howen stating, "well, I agree and I just. . .wanted to hear you say it. . . ."

Although he could not recall the reason why this information was not disclosed until three weeks after the interview, [FN1708] Lindquist stated that he was not concerned about the delay because he thought that the information was marginally Brady and that the delay was not intentional. He attributed the delay to a simple oversight caused by the intense demands imposed by the trial. [FN1709] Lindquist did not specifically recall Howen attributing the delay to his initial plan to elicit the testimony from Neal on direct, but opined that it was consistent with what he recalls of their discussions during this period. Lindquist did not think that such a theory violated either the Jencks Act or the Brady rule. With regard to the Brady rule, Lindquist first opined that such information should be produced "with diligence" but then stated that revealing the information on direct would satisfy Brady, especially if there was no prejudice to the defendant. [FN1710]

e. The L-1 Bullet and L Bullet Photographs

On August 31, 1992, FBI Special Agent Larry Wages participated in the collection of evidence at the "Y" at Rudy Ridge. Also participating in the search were Special Agents Cadigan, Taister, and Grover from the FBI lab. [FN1711] As evidence was located, it was marked with a flag, given a letter designation, marked on the evidence diagram and then was photographed. [FN1712] During the search, Wages later became known as the "L-1" bullet to the FBI and the "pristine" or the "Magic" bullet to the defense. Wages recalled that, pursuant to his request, Cadigan photographed the bullet. However, later, Wages realized that he needed to obtain a letter designation from the photographer and then to have a new picture taken with the letter designation. Despite his efforts, Wages was unable to find a photographer. [FN1713]

In the middle of the morning, Supervisory Special Resident Agent Dillon informed Special Agent Gregory Rampton that they believed that Weaver would surrender shortly and, in anticipation of the surrender, he wanted to hold a briefing to discuss the expected search of the Weaver cabin. Thereafter, Rampton sent a messenger to the Y to instruct Wages to end the search and return to the command post for a briefing. [FN1714] Because Kelly Kramer, the photographer, was still unavailable to assign letter designations to the bullets and then photograph them, Wages placed flags where the bullets were located, placed each bullet in a plastic bag and took them with him to the briefing. [FN1715] When Wages arrived at the command post, he showed Rampton the bullet, which subsequently became known as the "L-1" bullet.[FN1716] After the search of the cabin was completed, Wages returned to the Y, replaced the bullets at the locations of the flags and then had Kramer photograph the bullets in place.[FN1717] To account for the fact that he had removed evidence, Wages indicated in his log that the search terminated after the search at the cabin. [FN1718]

On January 8, 1993, defense attorneys Spence and Matthews had an opportunity to examine the physical evidence collected by the government. The L-1 bullet was among the evidence reviewed. When Special Agent Rampton told them that the "L" bullet may have been fired from Sara Weaver's mini 14 rifle, [FN1719] Spence reportedly accused the FBI of having "staged" the evidence since the bullet had very few markings on it and the photograph of it showed it simply laying on the ground. Rampton responded that the evidence could not have been staged since the bullet was found before the seizure of Sara Weaver's gun. To support his argument, Rampton checked the search log completed by Wages. However, when Rampton read the log, he noticed that it indicated that the "L" bullet was discovered on August 31, during a search that began at approximately 9:40 a.m. and ended at approximately 6:00 p.m., which was after Weaver had surrendered and the mini 14 rifle had been seized. Rampton told Spence that he would review the investigative notes of Wages to resolve the issue. Thereafter, Rampton examined the investigative notes of Wages, which indicated that the search at the Y concluded at 11:00 rather than 6:00. To resolve the discrepancy, Rampton called Wages and explained the issue. Wages then explained to Rampton the complete circumstances surrounding the photographing of the L bullet. [FN1720]

Rampton told investigators that after his conversation with Wages, he called defense counsel Peterson and "explained the situation concerning the 'L' bullet." In addition, he called Howen and Lindquist and explained the entire matter to them, including how the L bullet was photographed and the allegations made by defense counsel Spence that the evidence had been staged. According to Rampton, Howen and Lindquist "noted the incident without apparent concern." [FN1721] Howen, however, did not recall Rampton explaining how the L photographs were taken or informing him that he had any discussions with defense counsel Peterson about how the photographs had been taken. [FN1722] Lindquist also did not recall discussing this issue with Rampton during this time period, although he did recall the issue coming up later. [FN1723]Rampton prepared no reports of interview indicating that he had provided this information to anyone in the USAO or to defense counsel.

Howen did admit that Wages informed him about the circumstances surrounding the photographing of the L bullets during an April 1993 pretrial interview. Howen made a note of this disclosure in his notes; Wages requested and received a copy of these notes from Howen immediately after their discussion. [FN1724] At the time, the disclosure did not strike Howen as "significant" and he forgot about this information until talking to Wages in May 1993 before Wages was to testify at trial. At that time, Wages reminded Howen of the L-1 bullet and that it had been removed prior to being photographed. When Wages reminded him about this information, Howen decided that he could not use the photographs to represent to the jury that this was how the evidence was found. Howen recalled that it was at that time that he informed the defense and that after he made this disclosure, Wages reminded him that he told Howen about the pictures in April. Howen then reviewed his early April 1993 notes and confirmed that Wages was correct. [FN1725]

Wages and Rampton provided a slightly different version of events. They insisted that when Wages reminded Howen in May 1993 of the circumstances surrounding the photographing of the L-1 bullet, Howen immediately questioned if he had been informed earlier. Wages and Rampton then produced Wages' copy of Howan's earlier notes as proof. According to Rampton, when Howen was presented with his notes, he just stared at them. [FN1726] This conversation occurred before Howan disclosed the information to the court. In addition, Wages stated that although he had told Howen in April that all of the photographs of the L bullets had been taken in the same manner, he forgot to remind Howen of this in May at the time he was preparing Wages to testify. Thus, when Howen informed the court that the L-1 bullet had been removed before being photographed, Wages had to tell Howen that the other L bullets also fell into that category, thus requiring Howen to go back to the court and provide the defense with this information.[FN1727] In addition, during this time period, the case agents discovered two packages of photographs in a case storage area that had been overlooked. It appeared that some of these pictures were of the L series bullets and had been taken before Wages had removed them.

The record provides support for the version of events detailed by Wages and Rampton. On May 25, Howen told the court that the agents had notified him that they had discovered a packet of search photographs, including pictures of the L series bullets, that had been stored at another location. Howen stated that they would produce these photographs to the defense later that day. [FN1728]

After the luncheon recess on May 25, defense counsel Spence complained about the late production of the photographs and argued that they should have been produced earlier in discovery. [FN1729] Howen argued that discovery was a continuing obligation and that he was producing materials as soon as he learned of them. He then stated, "I came to find out a couple of days ago, maybe a week or so ago, the photograph identified with the L-1 bullet was not as it was found. As a result of that, I was not going to use that particular photograph."[FN1730] In response to defense questions, Howen briefly explained that the bullets had been removed and then replaced later before the photographs were taken. From their subsequent remarks, this was obviously the first time that defense counsel Nevin and Spence had learned about the circumstances surrounding the photographing of the L bullets. [FN1731]

Howen told the court that due to how the L series photographs had been taken, he did not believe that it would be appropriate to offer them into evidence. In addition, he seemed to indicate that some of the photographs produced that morning had been taken by either Michael Taister or Cyrus Glover before the bullets were removed but that Larry Wages, the testifying agent, had not been present during the taking of these photographs and thus was unaware of them. [FN1732] Howen then explained that Wages had removed the bullet when a photographer was unavailable and later had returned with a photographer to take the picture.[FN1733]

Following an afternoon recess, Spence complained that Howen had just informed him that the entire "L" series of photographs--not just the L-1-- had been photographed after the bullet or bullet fragment had been removed and then replaced. Spence then recounted the recent untimely disclosures that the prosecution had made, including the Neal interview and the Cooper interview notes. With regard to the L series photographs, Spence maintained that they constituted Brady material that should have been disclosed "long ago" and requested the court to impose sanctions against the government and to inform the jury of what had occurred. [FN1734] Defense counsel Nevin echoed the concerns articulated by Spence. [FN1735]

Howen accepted responsibility for the late production of the photographs and told the court that it was not until the lunch recess that he was advised that the entire L series, not just the L-1 photograph, had been taken after having been removed and then replaced. Howen argued that he had produced the materials as soon as he became aware of them and that he did not believe that the defense request for sanctions was appropriate. [FN1736] The court accepted Howen's representations that the information and the photographs had been disclosed as soon as they had been discovered and refused to impose sanctions or to inform the jury as requested by the defense. [FN1737]

Two days later, Larry Wages testified and described the August 31 search at the Y and explained that the items seized were given the designation of "L". He then testified that in the early afternoon, he was informed that Mike Dillon wanted him to go to another area. Because the bullets had not been photographed with a letter and number designation, Wages decided to take the evidence with him. Thereafter, he picked up the L-1, L-2 and L-3 bullets, marked the location where the bullet had been with a wire flag or a piece of wire, placed the bullets in a plastic bag, labeled them and then took them with him. At about 6:00, he returned to the Y, replaced the bullets, and had Kelly Kramer, the photographer, take a picture of the bullets with the letter and number designation. [FN1738]

Towards the end of the direct examination, Howen asked Wages a series of questions about how Howen learned the circumstances surrounding how the L series photographs were taken. Wages testified that he had first discussed this subject with Howen about one week before the trial started, that Howen had taken notes of this discussion and that Wages had reminded Howen of this conversation during the weekend preceding Wages' scheduled testimony. [FN1739] Based on comments that defense counsel made later that day, it appears that Howen had not notified defense counsel about his prior knowledge until the previous night when he had agreed to inform the court of this knowledge. [FN1740]

On cross-examination, Wages admitted that he had not marked the direction in which the bullet was pointing and, thus, he may not have replaced it in exactly the same position. In addition, Wages testified that Rampton had called him sometime in early January 1993 and inquired why the search times on the 302 that he had prepared on the search and the search times on pertinent documents did not agree concerning the time that the search ended. At that time, Wages explained to Rampton the circumstances surrounding the taking of the photographs.[FN1741]

f. The Late Production of the Shooting Incident Report and Supporting Materials and the October 26, 1993 Court Order

The circumstances surrounding the late production of the subpoenaed version of the shooting incident report and supporting materials were discussed earlier in Section IV (M) of this report. One of the newly produced documents included a diagram of the Weaver cabin prepared by HRT sniper Horiuchi which detailed the second shot that Horiuchi took on August 22, 1992. As a result of this late disclosure, the court ordered Horiuchi to return for additional cross examination and imposed sanctions on the Government by requiring it to pay the court costs and attorneys fees caused by the delay. The adverse impact of this disclosure was intensified by the fact that it followed the embarrassing series of late disclosures by the government which have been detailed in this section.

Almost four months after the jury returned its verdict, Judge Lodge issued an order imposing a $1920 fine against the FBI. This fine represented the attorneys fees paid to defense counsel when Horiuchi returned for cross examination. In this order, Judge Lodge criticized the FBI efforts to produce the discoverable materials, including Jencks and Brady documents and stated that one of the primary reasons that a continuance of the February 2, 1993 trial date was necessary was because of the failure of the government to produce certain critical items of evidence such as the ballistics evidence and the weapons seized. He then stated:

In hindsight, it is clear that even prior to this meeting, the Assistant United States Attorneys Howen and Lindquist were receiving less than full cooperation from the FBI and that items of evidence were not being produced timely. It later became clear that a pattern of delay and lack of cooperation was manifesting itself despite the efforts of the local Assistant United States Attorneys. Once the items and information were received in the local office of the United States Attorney, Howen and Lindquist continually assured the court that they were producing the materials for the defense as quickly as arrangements could be made. [FN1742]

Judge Lodge recounted the incidents when the Government had been late in producing discoverable material during the Weaver trial. First, he noted that seven of the addenda to the government's discovery response, which were filed on the eve of trial and during the trial, contained FBI materials. [FN1743] Next, the court discussed the late disclosure of the Calley notes, the Neal interview, the package of photographs taken by the FBI and the circumstances surrounding the taking of the L series photographs. The final offending incident was the late production of the shooting incident materials in response to the defense subpoena. [FN1744]

After discussing the importance of discovery to the rights of the defendant and the obligation of the government to produce such materials, including Brady materials, as quickly as possible, the court stated:

Here, the FBI failed to produce materials in a timely fashion. They failed to provide Jencks and Brady materials. They failed to obey orders and admonitions of this court. Their failures necessitated the initial continuance of the trial of this matter. Once the matter had begun, their continued failures necessitated continuous discussion between court and counsel and continuous prodding of the FBI by the court. The culmination of this was the late receipt of the Horiuchi materials.....

The failure to provide the Horiuchi materials was the latest transgression in a series of transgressions. This failure occurred on day 33 of a trial at which the government presented evidence at total of 37 days. At the time of the Horiuchi material incident, it was unclear how much longer the government would be presenting its case. The court was concerned with the length of trial for a host of reasons, not the least of which was the fact the court was the only active judge in the district, responsible for matters in Coeur d'Alene, Moscow, and Pocatello, Idaho, and all administrative matters in the district. In this light, the FBI's recalcitrance was especially frustrating. The court had an obligation to the defendants to ensure they had all the materials to which they were entitled and an obligation to the federal litigants in the District of Idaho to keep the calendar moving. The actions of the FBI impeded the court in both of these areas. With no idea as to how much information was yet to be divulged by the FBI, and no idea how much longer the government's case in chief would take, the failure to produce the Horiuchi materials forced the court's action. Previous orders and admonitions had proved to be of no value. Accordingly, the court had no option but to impose a sanction both as punishment for ignoring previous orders and to secure compliance and cooperation during the remainder of the trial. [FN1745]

Thereafter, the court concluded that the FBI had failed to comply with its discovery obligations under Rule 16 and found the FBI to be in contempt of court in violation of 18 U.S.C. 401. In support of its ruling, the court held:

The FBI was a principal participant in the Weaver/Harris criminal proceeding. Its behavior served to obstruct the administration of justice in that proceeding. Its behavior brought about the delays and countless arguments outside the presence of the jury. These delays and arguments, which obstructed the progress of the trial, would not have been necessary had the FBI acted as it had been directed to act. The failure to act occurred in the courtroom where the government, through its agent, was directed to act. All performance by these government agents revolved around this court and this trial. All work performed by the [sic] these agents directly impacted these defendants. The actions of the government, acting through the FBI, evidence a callous disregard for the rights of the defendants and the interests of justice and demonstrate a complete lack of respect for the order and directions of this court. [FN1746]

3. Discussion

a. Response of the Government to the Defense Subpoena for FBI and Marshals Service Manuals and Personnel Files

Issues were raised during our investigation as to whether the government responded appropriately to the defense subpoenas seeking the production of the FBI and Marshals Service manuals and certain personnel files. With regard to the response of the government to the production of the manuals, we find their efforts to be acceptable. The Marshals Service produced these materials immediately to the USAO when the issue first arose. Although the FBI did not produce their manual provisions until later, their response time does not seem unreasonable to us considering the contemporaneous efforts of Howen to resist production by the filing of a protective order.

We are somewhat troubled, however, by the response of Howen in November 1992 to the request of defense counsel Peterson for the FBI manual. Although not worded exactly the same as the request in the subpoena, Peterson was clearly asking for the same FBI manual provisions in November. At that time, Howen declined to produce these items for one or two reasons--either the provisions were not in his possession or they were not discoverable. We think that the manual provisions were clearly discoverable. The actions of the FBI sniper on August 22, 1992 were pertinent to the charges lodged against Weaver and Harris.

With regard to the explanation that Howen did not have possession of the materials and, thus, could not be expected to produce them in discovery, we find such an excuse to be unpersuasive and without legal merit. Pursuant to Fed. R. Crim P. 16 (a) (1) (C), the government is obligated to produce upon request discoverable materials that "are within the possession, custody or control of the government." This obligation is not limited to the materials within the possession of the prosecutor but rather, extends to all materials over which the prosecutor has knowledge and access. See United States v. Bryan, 868 F. 2d 1032, 1036 (9th Cir.), cert. denied, 493 U.S. 858 (1989). A prosecutor is "deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant." Id. To conclude otherwise would "unfairly allow the prosecution access to documents without making them available to the defense." United States v. Robertson, 634 F. Supp. 1020, 1025 (E.D. Cal. 1986), aff'd, 815 F. 2d 714 (9th Cir.), cert. denied, 484 U.S. 912 (1987).

Howen, as the prosecutor in the case, was responsible for coordinating the government's response to its discovery obligations. The fact that Howen did not have physical possession of an item did not erase his responsibility to produce clearly discoverable material. Hiding behind such an excuse is contrary to the legal obligation of the Government, does a disservice to the court and the defense and reflects adversely on the Government. [FN1747]

Turning to the response of the government to the defense subpoena for the personnel files, we note at the outset that the court expressed concern over the manner in which the FBI responded to the subpoena for the Horiuchi personnel file but made no mention of the response of the Marshals Service to a similar subpoena for the personnel files of the marshals at Ruby Ridge on August 21, 1992. As framed, the subpoenas requested the complete personnel files of the named individuals. We find that the protective order sought by the government was solidly based in the law. Indeed, the court ultimately concluded that a Henthorn review rather than production of the entire personnel file was an adequate response to the request. With regard to the speed with which the FBI responded to the request, we cannot fault their actions. There was a legitimate basis to support their refusal to produce the complete personnel file. Once they were instructed to complete a Henthorn review, they did so expeditiously in several days. We do not understand, however, why it took the USAO eleven days to produce these certifications to the defense. Thus, to the extent that this production can be considered to have been untimely, the USAO must accept partial responsibility.

One final matter deserves comment. In its order, the court criticized the government for not disclosing the defense that the personnel files did not contain exculpatory information. The court seemed to suggest that the government had the obligation to conduct the Henthorn review without a prior defense request. While we appreciate the rationale of the court's ruling and accept its conclusion, we think that the law is not sufficiently clear on this point to justify criticizing the government. Although we concur that the defense is entitled to receive Brady material without a specific request, we are not comfortable in concluding that the government, without a specific request for the personnel files, must provide a Henthorn certification to demonstrate that the examination has been done.

b. Failure to Disclose Financial Compensation Arrangement with Informant Fadeley

There can be no doubt that the defense was entitled to have been informed that Fadeley might receive an award for his work on the Weaver case. Although we find the government responsible for this failure to provide critical information to the defense, we do not believe that the omission was improperly motivated. Notwithstanding this conclusion, we are seriously concerned that BATF Agent Byerly failed to inform Howen of this potential award and, to a lesser extent, that Howen failed to be more aggressive in attempting to ascertain if other compensation arrangements existed.

With regard to the role of Howen in this incident,it is our sense that he did not probe as deeply as he should have into the financial promises or representations that Byerly made to Fadeley. Once he learned that Fadeley had been paid expenses but no salary, Howen rested his inquiry. Although Howen had no prior knowledge of BATF having such an awards policy, we think that a prudent prosecutor would have pursued the subject further. Indeed, as a prosecutor who had a healthy discomfort with using informants and an appreciation for the attacks that the defense can wage against questionable compensation arrangements, we would have expected Howen to have been more thorough in his efforts to ferret out this information.

However, in fairness to Howen, this request for information came on the eve of trial, at a time when he was frantically preparing for opening statements as well as attending to other critical trial preparation tasks. It is for this reason and others that we assess the primary responsibility for this incident on Byerly. We have difficulty understanding the reasons why Byerly was not more forthcoming with this information. All indications that we have received was that Byerly had always been an extremely cooperative and helpful member of the prosecution team. As an experienced agent who had used informants on prior occasions, we are confident that he appreciated the common pitfalls attendant to the use of informants with one of the most notable being the compensation arrangement. That Fadeley had received an award in the past and that he had been told that he might receive an award in the future for the assistance that he provided in the Weaver case was significant information that Byerly should have conveyed to Howen. However, Byerly failed to do so. We find it to have been unreasonable for Byerly to have withheld this information when Howen failed to pose an exact question to elicit it. Rather, we would have expected Byerly, as a member of the team, to have volunteered it. Similarly, we have not persuaded by Byerly's argument that he assumed that Howen had learned of the award during his meetings with Fadeley. For Byerly to have relied on such an assumption was neither reasonable not prudent. Indeed, in our view, Byerly should have raised this important subject with Howen to ensure that his assumption of knowledge was correct.

The late disclosure of the Fadeley compensation arrangement was extremely embarrassing to the government and provided one of the early suggestions that the government was not being totally forthcoming with the information that it was providing to the defendants. Apart from the problems associated with the late disclosure of the Fadeley information, we are troubled by the award system which appers to be in place at BATF. We are concerned, as were the members of the USAO,[FN1748] that such an award of future compensation comes dangerously close to being a contingent fee arrangement. It would seem difficult to honestly believe that an informant who knew that he might be eligible for such an award would not think that the government would be anxious and pleased to receive information that would lead to the successful prosecution of a defendant. Even if knowledge of such an award would not cause an informant to tell a blatant untruth, it might affect his testimony in a manner adverse to a defendant. In addition to the impact that such an award might have on the truthfulness of an informant is the concern that such an arrangement between the government and an informant has the appearance of a contingent fee arrangement and casts the government in a negative light. It is for these reasons that we urge the BATF to reconsider continuing its practice of giving future awards to informants whom it has used.

c. Late Production of the Calley Notes

Five weeks into the trial and after the testimony of Deputy Marshal Cooper, Special Agent Calley found notes in his desk that he had taken during his interview of Cooper as well as part of his draft FD-302 of the interview. The USAO had specifically requested the FBI on September 3, 1993 to produce these notes, yet they did not do so. Responsibility for this incident must rest with the FBI.

We do not think that Calley intentionally withheld or concealed the notes. From all accounts, Calley was surprised, embarrassed and apologetic about the incident. Rather, we find that the incident was attributable to carelessness on his part and perhaps to a failure of the case agents to carefully inspect the materials that were being produced to the USAO in discovery. all documents associated with the interviews of the marshals present at Ruby Ridge on August 21, 1992 were critical to both the prosecution and the defense. Indeed, such documents were among those that both sides were most anxious to review. Thus, we would have expected the FBI to have been more thorough in its examination of these materials before it produced them. Indeed, had the FBI reviewed the documents more closely, it would have noticed that the set of notes produced for Calley was incomplete. [FN1749] Similarly, we are somewhat perplexed why this file was not discovered during the initial search for responsible documents. One would think that the desk of the agent responsible for conducting the interview of Cooper would have been one of the first locations that would have been searched.

d. Late Disclosure of the Neal Interview

Under the rule articulated by the Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963), the prosecution has an affirmative duty to disclose to the defense evidence that is both favorable to the accused and material to either guilt or punishment. Failure to make disclosure of such evidence violates the due process rights of the defendant "irrespective of the good faith or bad faith of the prosecution." Id. at 87. The prosecution has the constitutional obligation to disclose such information even in the absence of a specified request from the defense. See United States v. Agurs, 427 U.S. 97 (1976). The prosecutor is only required to disclose materially favorable evidence. Evidence favorable to the accused is evidence which, if disclosed and used effectively, may make the difference between conviction and acquittal. United States v. Bagley, 473 U.S. 667, 676 (1985), citing, Brady v. Maryland, 373 U.S. 83 87 (1963) and Napue v. Illinois, 360 U.S. 264, 269 (1959). Evidence is material only if there is a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. at 682. A reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. See also Pennsylvania v. Ritchie, 480 U.S. 39 (1987). For example, evidence which supports an affirmative defense or corroborates the defendant's testimony is materially favorable evidence which must be disclosed. United States v. Hibler, 463 F. 2d 455, 459-60 (9th Cir. 1972).

The prosecutor is not obligated to disclose all information in his case file which might be helpful to the defense, United States v. Agurs, 427 U.S. at 109-11, nor is he required to disclose "every bit of information that might affect the jury's decision." United States v. Little, 753 F. 2d 1420, 1441 (9th Cir. 1984). The prosecutor has no duty to disclose evidence which is neutral or inculpatory. United States v. Bryan, 868 f. 2d 1032, 1037 (9th Cir. 1989). However, if a prosecutor fails to disclose evidence that results in depriving a defendant of his right to a fair trial, that prosecutor has breached his "constitutional duty to disclose." United States v. Agurs, 427 U.S. at 108. It is for this reason that a "prudent prosecutor will resolve doubtful questions in favor of disclosure." Id. See Also United States v. Miller, 529 F. 2d 1125, 1128 (9th Cir.), cert. denied, 426 U.S. 924 (1976).

Applying these standards to the information that Howen learned at the Neal interview, we must conclude that the information was subject to disclosure as Brady material as well as being a statement of Roderick that should have been produced as Jencks material. One of the critical issues in the case was who fired the first shot at Ruby Ridge. To the extent that Howen had any knowledge or information about this issue, he was constitutionally obligated to produce it to the defense. We deem the substance of his April 24 interview with Captain Neal to constitute such information. Although Neal did not state that Roderick said that he had shot the dog first, Neal did state that it was his impression that Roderick had shot the dog first. Regardless of whether Neal could articulate his reasons for forming this impression, that he had this impression was important information that needed to be disclosed to the defense to permit them the opportunity to pursue the matter with Neal.

We believe that Howen recognized his obligation to disclose this information from the moment that he first heard it. Indeed, he remarked to Neal at the interview that this information would have to be given to the defense. In addition, Lindquist recalled Howan consulting with him about the matter shortly after the interview. At that time, Lindquist opined to Howen that the information should be treated as Brady material and produced to the defense. Lindquist recalled Howen agreeing and that he just wanted to receive confirmation from Lindquist.

Howen stated that he deferred disclosing this information to the defense because he intended to call Neal as a witness and to explore the issue with him on direct examination. Howen believed that through the direct questioning of Neal, he would convincingly demonstrate that Roderick gave Neal no information nor made any statements to him that would be evidence that Roderick admitted to shooting the dog first. We find this justification unacceptable. Although the Supreme Court has yet to rule on the timing of when exculpatory evidence must be produced, most courts require that Brady material must be disclosed in time for effective use at trial. As the Ninth Circuit held in United States v. Gordon, 844 F. 2d 1397, 1403 (1988), "Brady does not necessarily require that the prosecution turn over exculpatory material before trial. . . . [but] disclosure must be made at a time when disclosure would be of value to the accused." When exculpatory information is disclosed at trial, a Brady violation only occurs if the defendant was prejudiced by the delay in disclosure. See United States v. Aichele, 941 F. 2d 761, 764 (9th Cir. 1991).

It was not until the midst of Roderick's testimony--the witness to whom this information was pertinent--that Howen made disclosure to the defense. When the court became aware of the issue, it recessed the trial to permit the defense the opportunity to question Neal. In our view, this eleventh hour disclosure by Howen comes perilously close to being a violation of the Brady rule. Although the defense had the opportunity to examine Neal, this opportunity came in the midst of trial during a hastily called recess. This is not an instance when the government had just acquired the information, indeed, Howen had learned the information one month earlier. Nor is it a defense for Howen to argue that the defense could have interviewed Neal since it knew that Neal was on the witness list of the government. Such an opportunity did not diminish the obligation of Howen to make the disclosure of information which is "known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. at 103.

However, from a strictly analytical perspective, the defendants were probably not prejudiced from the action and, thus, a Brady violation did not occur. When this problem surfaced, the court called a recess to give defense counsel an opportunity to interview Neal. Thereafter, they were able to explore the issue with Neal and to use this information when conducting their cross-examination of Roderick. Furthermore, based on the jury verdict returned on the assault on a federal officer charges, it is difficult to conclude that the defendants suffered prejudice from the late disclosure of this information.

Even if the defendants did not suffer any actual prejudice by the delay in revealing the Neal interview, we find the conduct of Howen raises serious ethical concerns. Although there are no internal Department of Justice guidelines governing the appropriate time for disclosure of Brady materials, we believe that the prompt disclosure of exculpatory information is the better practice. The American Bar Association had adopted such a rule. Standard 3-3.11 (a) of the ABA Standards for Criminal Justice: The Prosecution Function (3d ed. 1992) provides that,

A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.

We think that the preferable course of action would have been for Howen to have disclosed the Neal material--as he appears to have originally intended--immediately after he first learned of it. The late disclosure cast the government in a bad light and wasted the court's time while the parties argued about whether the rights of the defendants had been violated.

This conclusion leads us to our next area of inquiry, which is whether the delayed disclosure of this information was an effort by Howen to harm the ability of the defendants to prepare their defense. We found no evidence in our investigation that Howan's decision was improperly motivated. Although we may not agree with his articulated strategy of clarifying the Neal statements through direct testimony, we do not consider this explanation as an after-the-fact fabrication. We believe that such reasoning was a major factor in the late disclosure.

However, we also believe that the stress of the trial, coupled with long work hours with little sleep, impacted adversely on the deteriorating psychological health of Howen and contributed to his failure to disclose the Neal information as well as the circumstances behind the taking of the L bullet photographs. Indeed, from the early stages of the trial, those working closely with Howen noticed that he was under incredible pressure and was exhibiting signs of stress.[FN1750] According to Lindquist, Howen was an excellent, methodical and thorough prosecutor who was "burning the candle at both ends" during the Weaver prosecution. [FN1751] As the trial progressed, Howen was eating poorly and was getting little or no sleep each night as he worked on the numerous trial preparation tasks. In addition, the time away from his family caused "some significant family problems" which increased the emotional pressure on Howen.[FN1752] Although Lindquist tried to relieve some of the pressure on Howen by assuming more responsibility, this strategy did not cause Howen to slow down.[FN1753] Ellsworth spent considerable time, especially during the latter stages of the trial, trying to provide emotional support for Howen. Ellsworth noted that others in the USAO as well as the agents on the case noticed the change in Howen and were concerned about his condition. [FN1754] For example, Rampton noted that on a couple of occasions, Howen woul stare in silence for extended periods of time. He also observed that some of Howen's legal arguments were not as coherent as they had been previously.[FN1755] Towards the end of the trial, the pressure on Howen became so intense that he could not proceed and had to absent himself from the remaining days of the trial. Thereafter, Lindquist performed the remaining prosecutorial tasks.

One additional issue warrants mention and that concerns the timing of the interview. We are perplexed by the failure of Howen to interview Neal and other CRT members sooner. These CRT members rescued the stranded marshals following the traumatic events of August 21, 1992. They were the first individuals to have contact with the marshals. Howen knew about the involvement of the CRT members in the rescue and should have appreciated the importance of any information or statements that the marshals may have disclosed to them. Nevertheless, no one from the USAO interviewed the CRT members during the 7-1/2 month period before the beginning of the trial. We find this preparation lapse to be troubling. Although we appreciate that numerous demands were being placed on the prosecution during the pretrial period, we have difficulty understanding why hours were spent interviewing prospective witnesses in Iowa who might have information to support the conspiracy count, yet no time was spent interviewing the CRT members who might possess information critical to the government's theory of the case.

e. The L Bullet Photographs

Several days after the controversial disclosure of the Calley notes and the Neal interview, Howen was tasked with informing the court of yet another serious omission by the government. As with the Neal interview, the responsibility for failing to inform the court and defense counsel earlier about the circumstances surrounding the taking of the L series photographs [FN1756] must be assigned to Howen. Indeed, he admitted that he had acquired this information during his pretrial interview with Wages in early April, but simply forgot the information. Howen stated that when Wages first communicated this information to him, he did not recognize it as "significant." Because this disclosure was clearly significant, we believe that when Wages informed Howen in April 1993 of this information, that Howen failed to focus on the implications of the information and quickly forgot the problem once the trial was underway. We do not believe that Howen intentionally concealed his knowledge. As with his failure to disclose the Neal interview, we believe that the extreme stress he was under, coupled with his efforts to handle numerous trial preparation activities contributed to his memory lapse.[FN1757]

We do not believe that Howen intentionally withheld this information from the court and defense counsel. Nevertheless, we are not entirely comfortable with the manner in which he informed them that he had known of this information earlier. The record indicates that Howen informed the court and defense counsel on May 25, 1993 about the circumstances surrounding the taking of the L series photographs but that it was not until two days later that Howen confessed to having had such knowledge approximately six weeks earlier. Based on his recollection in his interview, Howen indicated that it was not until after he disclosed the information that Wages reminded Howen that he had provided this information to him in April 1993. However, Wages and Rampton recall this incident differently. They recall informing Howen of how the photographs were taken as well as reminding him that they had informed him earlier on the same occasion. We find their account more credible. Indeed, we find it somewhat difficult to believe that after informing Howen of the manner in which the photographs were taken and his realization that he had a serious problem that he would not have questioned why this information was not revealed at an earlier time. We think that Howen was reminded of his prior knowledge during his conversation with Wages and Rampton. We are troubled by the failure of Howen to be totally forthcoming with the court until later but attribute it to his impaired psychological state at the time.

Although Rampton insists that he informed Howen and Lindquist in January 1993 of the circumstances surrounding the taking of the photographs, we are not convinced that this communication, if made, was articulated as clearly as Rampton recalls. Neither Howen nor Lindquist recall Rampton informing them of this information at that time. Based on the unconcerned reaction of Howen and Lindquist that Rampton describes, we suspect that the conversation may have been focused on the accusations of Spence that the bullet was planted by the FBI and to the extent that any information was relayed regarding the method by which the photographs were taken, it was secondary to the primary subject of the conversation. In addition, there are two other reasons why we discount this part of Rampton's recollection. First, he stated that he provided defense counsel Peterson with the same information regarding the L series photographs. However, there is no indication that Peterson knew of this information. Indeed, if Peterson had been aware of such facts, we would have expected him to have disclosed the information to fellow defense counsel and for all of them to have protested the action.[FN1758] None of this ever happened. Second, Rampton created no record of his conversations with Howen, Lindquist and Peterson on this subject. As it is the practice of the FBI agents to faithfully document their significant contacts in an investigation, we find it unusual that the practice was not followed here. [FN1759]

Our final comments on this issue are directed at the late disclosure of the set of photographs that contained pictures of the L bullet before Wages had removed it. Howen and Lindquist thought that the late discovery of these photographs was attributable to the relocation of evidence that occurred during the pretrial phase of the case and that these photographs were misplaced.[FN1760] The evidence supports this explanation for the untimely production of these photographs. There was no evidence found indicating that anyone from the government intentionally concealed these pictures. It is unclear to whom responsibility for this oversight should be assigned. One would have hoped and expected that the USAO would have carefully maintained a record of materials submitted by the FBI to the USAO. However, this did not appear to have occurred. An October 28, 1992 letter from Dillon to Ellsworth indicates that the FBI forwarded these photographs to the USAO at that time.[FN1761] However, a review of the addenda to the government's response to the discovery stipulation indicates that these photographs were never produced. Despite the existence of this transmittal letter, Howen was unwilling to admit that the photographs were never produced. Despite the existence of this transmittal letter, Howen was unwilling to admit that the photographs had been sent to his office since he had experienced a problem in the past with the FBI stating in a letter that they had sent an item, but then discovering the item was missing. However, when questioned why his office did not verify that the enclosed items had been provided, Howen admitted that at the time, he did not have a procedure whereby he or an assistant would review a package and then notify the FBI of any missing items. [FN1762] We think that the USAO must accept responsibility for this oversight.

Lindquist believed that the prosecution was harmed by the manner in which the FBI agents had picked up evidence and then later returned, replaced and photographed it. He viewed such conduct as very troubling and contrary to established procedures for processing evidence. Lindquist believed that the testimony that revealed the circumstances surrounding the taking of these photographs was harmful because it caused the jurors to question the basic credibility of the FBI since the agents had proceeded in such a fashion.[FN1763] Such doubts tainted the integrity of the government prosecution.[FN1764] We agree with Lindquist that this incident had a significant negative impact.

4. Conclusion

The late disclosures by the government of important information during the Weaver trial were unnecessary, were embarrassing and damaged the integrity of the government.[FN1765] As was previously discussed in section IV (M) of our report, the late production of materials related to the shooting incident report were particularly devastating to the prosecution. The FBI is responsible for that incident. We hope that corrective procedures are instituted to prevent a similar occurrence in the future. The FBI is also responsible for the late production of the Calley notes. Although we do not view that incident as having been intentional, we think that if more care and attention had been directed to the original search and production of the materials, it would have been avoided.

The FBI was not singularly responsible for the late disclosure of information--the USAO also neglected to reveal information in a timely fashion. Although the predominant blame for the late disclosure of the information pertinent to the Fadeley compensation arrangement rests with BATF Agent Byerly, we find that Howen should have been more aggressive in discovering this crucial information. The failure to reveal the Neal interview and the circumstances surrounding the taking of the L series photographs were also extremely damaging to the credibility of the government. Both incidents were avoidable; both incidents were the fault of Howen. Although we do not find evidence of improper motivation, we remain concerned by the lack of timeliness of disclosures, and faulty judgment in assessing the importance of these issues.

FOOTNOTES (SECTION IV, PART O)

1591 Letter from Charles Peterson to Ronald Howen, November 3, 1992.

1592 Letter from Ronald Howen to Charles Peterson, November 9, 1992.

1593 See Third Ex Parte Application for Issuance of Subpoenas and payment of Costs and Fees, filed April 13, 1993 with signed Order, dated April 14, 1993. The defense also requested a subpoena duces tec?? he issued for all records used by the shooting incident review team. A discussion of this subpoena and the controversial response to it is contained in Section IV(M).

1594 Id.

1595 Trial Transcript, April 15, 1993, at 142.

1596 Id. at 144-48. Howen stated that in prior cases in which he had been involved if an agency desired to quash a subpoena, an agency lawyer would usually assist in drafting a motion or in researching the issue. Howen Interview, Tape 10, at 35-36.

1597 Trial Transcript, April 15, 1993, at 148-49.

1598 Id. at 152-54.

1599 Id. at 154-55.

1600 Letter from Larry Lee Gregg to Ronald Howen, April 16, 1991.

1601 Memorandum in Support of Motion for Finding of Contempt, or in the Alternative for an Order to Show Cause and to Compel, filed April 23, 1993

1602 Trial Transcript, April 22, 1993, at 153-54.

1603 Howen did not think that the November 1992 letter from Peterson requested discoverable materials nor did he understand how the request related to the issues of the case. Thus, after receiving the letter he made no attempts to secure the requested material from the FBI. Howen Interview, Tape 19, at 32-34.

1604 Trial Transcript, April 23, 1993, at 157-59, 160-62.

1605 Id. at 166.

1606 Id. at 169-70.

1607 Id. at 172-74. Howen said that at the time he was overwhelmed by trial preparation tasks and was hoping for some assistance from FBI lawyers that would have aided him in arguing the FBI position. Howen interview, Tape 10, at 17-18.

1608 Trial Transcript, April 23, 1993, at 173-174.

1609 Id. at 234-35, 240-41.

1610 Id. at 244-45.

1611 This review has its origins in the case of United States v. Henthorn, 931 F. 2d 29 (9th Cir. 1991), cert. denied, 112 S. Ct. 1588 (1992). In that case, the Ninth Circuit reaffirmed its holding in United States v. Cadet, 727 F. 2d 1453, 1467 (1984) that once the defendant has made a discovery request for the personnel files of law enforcement witnesses, the government has the "duty" to review these personnel files to determine if they contain material information that is favorable to the defendant. If the prosecutor is uncertain whether any information is material, he can submit the matter to the court for in camera review. The personnel files do not need to be produced "to the defendant or the court unless they contain information that is or may be material to the defendant's case." United States v. Henthorn, 931 F. 2d at 31; accord, United States v. Dominguez-Villa, 954 F. 2d 562, 565 (9th Cir. 1992); United States v. Cadet, 727 F. 2d at 1463. The review of the personnel files need not be done by the federal prosecutor responsible for the case. It is sufficient if an appropriate agency attorney or a member of his staff conduct the review and then notify the prosecutor of the results of the review. The prosecutor is then responsible for determining if the information is potentially Brady material and if so, whether it should be produced or submitted to the court for in camera review. See United States v. Jennings, 960 F. 2d 1488, 1492, n. 3 (9th Cir. 1992).

1612 Government motion for Protective Order, for in Camera Inspection and Motion to Seal, filed April 23, 1992, at 3-4.

1613 FD-302 Interview of Lucy Ann Hoover, August 12, 1993, at 1.

1614 FD-302 Interview of Brian Callihan, August 6, 1993, at 4. 1615 Memorandum from Joseph Davis to Beau McFarland, April 27, 1993.

1616 Note on FBI Internal Routing/Action Slip from Clawson to Unknown Party, April 28, 1993.

1617 The CLU I had instructed the Salt Lake Division to process the subpoena at the field office level and to coordinate their response with the USAO. Thereafter, the Salt Lake City Division collected and produced the manual provisions to the defense without first submitting the manual provisions for review by the field office documents examiner who was responsible for reviewing the materials to insure that the disclosure was within the bounds of the request and that no applicable privileges were compromised. According to Clawson, the disclosure included sensitive materials that were not within the scope of the request which upset Gale Evans, the Unit Chief of the Violent Crimes Unit of the Criminal Investigation Division. See FD-302 Interview of Thomas Clawson, dated August 12, 1993, at 4-5. See also, FD-302 Interview of Gale R. Evans, dated October 13, 1993, at 7-8.

1618 Letter from Ronald Howen to Charles Peterson, dated April 28, 1993.

1619 Hoover FD-302, at 1; Memorandum from Assistant Director Legal Counsel (FBI), to Ronald Howen, April 29, 1993.

1620 Defendants' Response to Motion for Protective Order, For in camera Inspection and Motion to Seal, filed April 30, 1993.

1621 The Marshals Service provided the Henthorn certifications for Roderick, Cooper and Degan on May 4, 1993. See Letters from Kevin F. O'Hare to Warren Derbidge, May 4, 1993.

1622 Trial Transcript, May 10, 1993, at 8.

1623 Id. at 10.

1624 Id. at 152.

1625 Letters from Gerry L. Spence and David Nevin to Ronald Howan, May 10, 1993.

1626 Letter from Ronald Howen to Gerry L. Spence and David Z. Nevin, May 12, 1993.

1627 Order, filed May 17, 1993, at 1-4

1628 On May 21, 1993, the government produced the Henthorn certifications for Deputy Marshals Hunt, Norris and Thomas. Government Fourteenth Addendum to Response to Discovery Stipulation, filed May 21, 1993.

1629 Howen Interview, Tape 10, at 38-39.

1630 Id. at 39-41.

1631 Id. at 41-42.

1632 Lindquist Interview, Tape 6, at 5-6.

1633 Id. at 6-7.

1634 See Affidavit of Charles F. Peterson in United States v. Weaver, No. CR 92-080-EJL, dated March 17, 1993.

1635 See Weaver Motion to Compel Identity of Informant, Criminal Record, and Matters Affecting Bias or Credibility, in United States v. Weaver, filed March 17, 1993.

1636 Government Response to Motion to Compel Identity of Informant, Criminal Record, and Matters Affecting Bias or Credibility, in United States v. Weaver, filed March 26, 1993.

1637 Addendum to Response to Motion to Compel Identity of Informant, Criminal Record, and Matters Affecting Bias or Credibility and Order to Seal (sealed), in United States v. Weaver, April 13, 1993, at 2.

1638 Howen Interview, Tape 2, at 14.

1639 Trial Testimony of Kenneth Fadeley, April 20, 1993, at 152-54.

1640 Id. at 154-55.

1641 Id. at 160-61.

1642 Id. at 161-63, 179. 1643 Trial Transcript, April 20, 1993, at 6-10.

1644 Id. at 11-13. Howen reiterated this view to investigators. See Howen Interview, Tape 2, at 15-22.

1645 Trial Transcript, April 20, 1993, at 12-13.

1646 Id. at 14-15.

1647 Trial Testimony of Herbert Byerly, April 20, 1993, at 68-70.

1648 Id. at 70-72.

1649 Id. at 75. 1650 Interestingly, this award was given to Fadeley for his assistance in the investigation of Frank Kumnick, who was associated withy members of the Aryan Nations and who was associated with members of the Aryan Nations and who was an associate of Weaver. See discussion in Section IV (A). Sometime in 1987 or 1988, Kumnick sold an illegal weapon to Fadeley in his undercover role. At that time, BATF knew that Kumnick and his associates had discussed forming a third group of white separatists. In addition, Fadeley learned that Kumnick had discussed kidnapping and holding for ransom children attending a private school in Northern Idaho. BATF requested Howen to informally decline prosecuting Kumnick for the gun charge because they believed that such a prosecution would expose Fadeley and that it would be more beneficial to the BATF investigation if Fadeley remained in his undercover capacity. Howen agreed and informally declined to prosecute Kumnick. See Letter from Ronald Howen to Barbara Berman, January 31, 1994, at 1-2.

1651 Byerly Trial Testimony, April 20, 1993, at 76-79.

1652 See Weaver Motion to Strike Testimony of Kenneth Fadeley [sic] and Memorandum in support thereof, in United States v. Weaver, filed April 21, 1993.

1653 See Government Response to Motion to Strike Testimony of Kenneth Fadeley.

1654 Order in United States v. Weaver, dated My 17, 1993, at 7-8.

1655 Id. at 8.

1656 Government Second Addendum to Response to Motion to Compel Identity of Informant, Criminal Record, and Matters Affecting Bias or Credibility, and Order to Seal, filed May 19, 1993.

1657 When the compensation issue was disclosed at trial, Ellsworth recalls Howen being very upset. It was Ellsworth's impression that Howen believed that he had been misled as to the compensation arrangement between BATF and Fadeley. Ellsworth Interview, Tape 1, at 17-19.

1658 Howen Interview, Tape 2, at 15-27, 33.

1659 Id. at 15-21.

1660 Byerly Sworn Statement, at 26.

1661 Interview of Herbert Byerly by Unidentified Special Agent from the Bureau of Alcohol, Tobacco and Firearms, September 7, 1993; Report by Donald Deane, Investigator, BIG, Department of Treasury (Interview of Herbert Byerly), December 17, 1993.

1662 Sworn Statement of Kenneth H. Fadeley, December 7, 1993, at 4-5.

1663 Id. at 5.

1664 See FD-302 Interview of George J. Calley, Jr., October 19, 1993, at 4-5.

1665 Id. at 10.

1666 The numerous errors in the FD-302 of Cooper created major problems for the prosecutor in presenting his case at trial. Similar problems were created by inaccuracies in the FD-302 of Ruth Rau. These inaccuracies, which in turn, created conflicts between the alleged statement made in the interview and the testimony elicited at trial, provided support for the defense attack on the credibility of the witness. The current FBI practice is to have the interviewing agent prepare an interview report based on his notes and recollection. We think that such a procedure can never be totally accurate and, indeed, in some situations, major errors can be made. Howen suggested, and we agree, that a more satisfactory way to conduct these interviews would be to record them on tape and to have the tape be the interview record.

1667 Calley FD-302, at 12.

1668 Sworn Statement of Larry Cooper, March 7, 1994, at 9-10; Trial Testimony of Larry Cooper, April 15, 1993, at 122-139.

1669 Id. at 13-14; accord, FD-302 Interview of Joseph V. Venkus, October 18-19, 1993, at 4.

1670 Calley FD-302, at 12.

1671 Venkus FD-302, at 5.

1672 Calley FD-302, at 13.

1673 Id. at 16.

1674 A "1-A" file accompanies all FBI reports of interviews and consists of the interviewers notes of the interview and any exhibits that pertain to the interview.

1675 Venkus FD-302, at 4.

1676 Letter from Maurice Ellsworth to Eugene Glenn, September 3, 1992, at 2.

1677 See Government Response to Discovery Stipulation, filed October 23, 1992.

1678 See Government Sixth Addendum to Response to Discovery Stipulation, filed February 26, 1992.

1679 FD-302 Interview of T. Michael Dillon, October 25, 1993, at 10-11; FD-302 Interview of Gregory Rampton, October 18-19, 1993, at 29.

1680 Calley FD-302, at 11.

1681 Howen Interview, Tape 10, at 52-53.

1682 Dillon FD-302, at 11.

1683 Howen interview, Tape 10, at 53. 1684 See Government Fourteenth Addendum to Response to Discovery Stipulation, filed May 21, 1993; Trial Transcript, May 21, 1993, at 10-11.

1685 See discussion in subsection (d), infra.

1686 Trial Transcript, May 21, 1993, at 10-11, 26.

1687 Id. at 27-28.

1688 Id. at 28-29.

1689 Trial Transcript, May 24, 1992, at 2-7.

1690 Howen Interview, Tape 10, at 43.

1691 Major Edwin Strickfaden commented that some CRT members wondered why they had not been interviewed earlier considering the pending trial. FD-302 Interview of Edwin D. Strickfaden, October 7, 1993, at 8. Howen stated that he did not interview the CRT members until the court recess because he had not had the time before then and prior to that time, he had been focusing on those individuals having firsthand knowledge of the April 21 events. He did not believe that they "had anything crucial to say at the time." Howen Interview, Tape 10, at 49-51.

1692 Howen Interview, Tape 10, at 44.

1693 FD-302 Interview of David L. Neal, August 28, 1993, at 4.

1694 Howen Interview, Tape 10, at 44-45.

1695 Howen explained, "I was going to lay it out myself someone else's testimony, ah, and I'm doing that, I consider that compliance with Brady. That's not withholding anything. Ah, particularly if I named the individual." Id. at 48.

1696 Id. at 46-47.

1697 Trial Transcript, May 21, 1993, at 2, 33; Howen Interview, Tape 10, at 47.

1698 Trial Transcript, May 21, 1993, at 3-4.

1699 Id. at 5-9.

1700 Id. at 12-13.

1701 Id. at 13-14.

1702 Id. at 14.

1703 Id. at 16-18.

1704 Id. at 27-29.

1705 Neal FD-302, at 4-5.

1706 Howen Interview, Tape 10, at 46.

1707 Id.

1708 Lindquist Interview, Tape 5, at 41-43; Tape 6, at 1-2.

1709 Id., Tape 6, at 2-3.

1710 Id. at 4-5.

1711 FD-302 Interview of Larry B. Wages, October 13 & 15, 1993, at 5.

1712 Id. at 4-5.

1713 Id. at 5-7. Special Agent George Sinclair recalled Wages approaching him and Special Agent Calley while the search at the Y was in progress and asking if either of them had a camera. Wages informed Sinclair that he had discovered a "pristine" bullet and wanted to photograph it so that it was preserved as evidence. Neither Sinclair nor Calley had a camera, but Wages showed them the bullet. FD-302 Interview of George T. Sinclair, Jr., October 7, 1993, at 3.

1714 Rampton FD-302, at 6-7.

1715 Wages FD-302, at 6.

1716 Rampton FD-302, at 7, 10.

1717 See Wages FD-302, at 6; Rampton FD-302, at 10. Kramer could not recall whether the bullet was present on the ground when he took the pictures, nor did he have any knowledge of the bullet having been removed earlier and replaced for the taking of the photographs. FD-302 of Kelly J. Kramer, October 12, 1993, at 2.

1718 Wages FD-302, at 6.

1719 The FBI Laboratory subsequently concluded that the bullet had been shot from Sara Weaver's gun.

1720 Rampton FD-302, at 9-10; Wages FD-302, at 6-7.

1721 Rampton FD-302, at 10.

1722 Howen Interview, Tape 6, at 30-33.

1723 Lindquist Interview, Tape 3, at 28.

1724 Howen Interview, Tape 6, at 29-30; Wages FD-302, at 7.

1725 Howen Interview, Tape 6, at 29-30, 33.

1726 Rampton FD-302, at 43-44; Wages FD-302, at 7.

1727 Wages FD-302, at 7.

1728 Trial Transcript, May 25, 1993, at 3.

1729 Id. at 65-67.

1730 Id. at 69-70.

1731 Id. at 72-73.

1732 Trial Transcript, May 25, 1993, at 73-76. Two days later, Howen stipulated that two of the photographs were taken by Cyrus Grover and depicted the L-1 bullet before it was picked up. Trial Testimony, May 27, 1993, at 126-27. Contrary to Howen's statement to the court, it appears that Wages knew that photographs of the bullets had been taken before he had removed them, although he believed that Cadigan had taken the pictures. Wages Fd-302, at 5-6.

1733 Trial Transcript, May 25, 1993, at 77.

1734 Id. at 125-30.

1735 Id. at 130-32.

1736 Id. at 132-35. This representation conflicts with Wages recollection that he informed Howen during their April 1993 meeting that the entire L series photographs had been taken after the evidence had been removed and then replaced. Wages FD-302, at 7.

1737 Trial Transcript, May 25, 1993, at 135-37.

1738 Trial Testimony of Larry Wages, May 25, 1993, at 14-21.

1739 Id. at 37-39.

1740 Trial Transcript, May 27, 1993, at 102-03.

1741 Wages Trial Testimony, May 25, 1993, at 130-31.

1742 Order in United States v. Weaver, No. CR 92-080-N-EJL, first filed October 26, 1993, at 2.

1743 At our request, Howen reviewed these addenda to determine which agency was responsible for the various items produced. This review indicated that many of these items--approximately 75 percent--were produced by the Marshals Service and the BATF or were created by the trial team for use at trial. See Letter from Ronald Howen to Barbara Berman, January 31, 1994, at 3-14.

1744 Order, October 26, 1993, at 3-8.

1745 Id. at 9-10.

1746 Id. at 13.

1747 It was not until our interview of former U.S. Attorney Ellsworth that he became aware of the position of Howen on this issue. Ellsworth agreed that the attorney representing the government has the obligation to obtain discoverable documents that he knows exist and that are in the possession of another government agency. Ellsworth Interview, Tape 5, at 47-48.

1748 Ellsworth said that he has always found payments confidential to informants to be a troubling area. He had particular difficulty with an award made after the informant had finished working on a matter because he could understand how the informant might feel that the size of the award was affected by the outcome in the case, even if it were not the basis upon which the BATF made the award. Ellsworth interview, Tape 1, at 28-29. Howen opined that the future award program at BATF creates a real problem for prosecutors. Although Howen believed that paying an informant a salary also presents issues as to the credibility of an informant, such a procedure, when disclosed at the outset, can be dealt with more easily than the future award program. Howen Interview, Tape 2, at 27-31, 34-35.

1749 Although we do not assess responsibility for this incident on the USAO, we cannot help but wonder if this omission in the Calley notes may have been something that they should have detected. Cooper was a critical witness and the first witness for the government. We would have thought that as part of the preparation process, someone in the USAO would have reviewed the Calley materials, would have noticed that pages were missing and that this would have prompted a further inquiry.

1750 Lindquist Interview, Tape 8, at 13-15; Ellsworth Interview, Tape 4, at 46-47; Tape 5, at 1-4.

1751 Lindquist Interview, Tape 8, at 13.

1752 Id. at 13-14; Ellsworth Interview, Tape 5, at 1-4.

1753 Ellsworth Interview, Tape 5, at 2.

1754 Id., Tape 4, at 46-47.

1755 Rampton FD-302, at 46.

1756 An evaluation of the conduct of the FBI in removing, replacing and photographing evidence as described by Wages is discussed in Section IV (I) of the report.

1757 Lindquist said that he was troubled by the failure of Howen to remember to disclose this information to the court and the defense. However, he did not attribute this action to any improper motive on the part of Howen. Indeed, Lindquist noted that such an omission was "uncharacteristic of Ron", whom he regarded as being "extremely diligent" in discovery matters. Lindquist attributed the lapse to "the fact that [Howen] was burning the candle at both ends and was very weighted down by horrendous discovery demands and it simply slipped his mind." Lindquist Interview, Tape 3, at 32.

1758 Lindquist said that if he had known that the defense had been informed in January 1993 of the circumstances surrounding the taking of the L photographs, they certainly would have raised such knowledge in defense when defense counsel complained about the problem in May, 1993. Lindquist Interview, Tape 3, at 28-29.

1759 Lindquist would have expected the FBI agents involved to have documented their conversations with defense counsel on this issue and the fact that they did not do so was troubling to him. Lindquist Interview, Tape 3, at 33.

1760 Howen Interview, Tape 6, at 34-37. Lindquist thought that the photographs may have been misplaced when some boxes were taken from the main storage area at the FBI and transferred to be inventoried at a condominium used by the marshals. Lindquist Interview, Tape 5, at 39-40.

1761 See Letter from T. Michael Dillon to Maurice Ellsworth, October 28, 1992. In this letter, Dillon forwarded a package of materials, including a package of 107 photographs and a package of 22 photographs, both of which were taken by Cyrus Grover. The photographs produced by Howen on May 25, 1993 were similarly described.

1762 Howen Interview, Tape 6, at 34-37.

1763 Lindquist Interview, Tape 3, at 26-27.

1764 Id. at 34.

1765 Judge Lodge told this investigation that the late production of arguably exculpatory materials adversely impacted upon the government's presentation of the case to the jury. See Memorandum from James R. Silverwood to Barbara B. Berman (Interview of the Honorable Edward Lodge), January 5, 1994.