Hamline Journal of Public Law and Policy
Volume 18, number 1, Fall 1996

*1 THE UNWARRANTED WARRANT: THE WACO SEARCH WARRANT AND THE DECLINE OF THE FOURTH AMENDMENT

by David B. Kopel [1] & Paul H. Blackman [2]

Copyright C 1996 Hamline Journal of Public Law and Policy; David B. Kopel, Paul H. Blackman

Notes about the HTML version of this article: This article is separated into three files, of which this is the first file. The bottom of each file contains links to the other two files. The star pageination system (e.g, "*3") tells you the page number of the printed copy.

[Hypertext Version, Part One]

*1 Criticism of federal law enforcement actions at Waco has not been in short supply. But the criticism has generally focused on how the Bureau of Alcohol, Tobacco and Firearms (BATF) conducted its February 28, 1993 raid on the Branch Davidian compound, and how the Federal Bureau of Investigation (FBI) conducted the fifty-one day siege that culminated in the tank and chemical warfare assault of April 19, 1993. Missing from the discussion of how the federal government handled the Waco disaster is how the government got into the problem
in the first place. In particular, how and why did the government procure the search and arrest warrants which the BATF was attempting to "serve" with its unsuccessful raid? A careful study of the Waco search warrant reveals numerous flaws, not just with the warrant application but with search and seizure law as it has developed in the 1990s.

In this article, we examine in detail how the Waco warrants were procured and use the flaws in the Waco warrants to illustrate broader trends which have encroached the Fourth Amendment and other parts of the Constitution in the 1980s and 1990s. Part one of this article sets forth the background to the BATF investigation of the Branch Davidian residence at the Mount Carmel Center, outside of Waco, Texas, and suggests that there is no good reason for the federal BATF to have jurisdiction over the tax offenses it was allegedly investigating. Part two studies the warrant application and reveals how the application was riddled *2 with errors of law and fact, and offers reforms for how to reduce false or misleading statements in future warrant applications. Part three investigates the possibility that the lawful exercise of First Amendment rights may have been a key element in the BATF's determination that there was probable cause for the Waco raid. Part four proposes two broader reforms to reduce the poor quality law enforcement work of which the Waco warrant was symptomatic: first, replacing the Gates [3] "totality of the circumstances" standard for judging the sufficiency of a warrant application with the two-part Aguilar [4] test to offer magistrates better guidance; second, reinvigorating the Exclusionary Rule.

I. How the Investigation Began

A. "Zee Big One"
In mid-November 1992, personnel from the 60 Minutes television program began contacting BATF officials regarding a story that 60 Minutes was producing about sexual harassment within the BATF. [5] At the same time, the BATF knew that a new President was coming to power--a President who had pledged to fight sexual harassment on every front, to "reinvent government," and to cut the federal budget deficit.

The BATF had already been on the defensive about discrimination. In 1990, black agents had filed suit in federal court claiming that the BATF racially discriminated in hiring, promotion and evaluation. [6] A fresh round of discrimination complaints by black BATF agents came in October 1992, the month before 60 Minutes began setting up interviews for the sex discrimination story. [7] The 60 Minutes report, which *3 would air on January 10, 1993, put the BATF in a vulnerable position for the Congressional budget hearing that would take place in early March, given the new administration's concern with sexual and racial harassment, and with reorganizing the government.

The 60 Minutes report was devastating. A BATF agent, Michelle Roberts, told the television program that after she and some male agents finished a surveillance in a parking lot, "I was held against the hood of my car and had my clothes ripped at by two other agents." [8] Agent Roberts claimed she was in fear for her life. The agent who corroborated Ms. Roberts' accusations recounted that he was pressured to resign from the BATF. Another agent, Sandra Hernandez, said her complaints about sexual harassment were at first ignored by the BATF, and she was then demoted to file clerk and transferred to a lower- ranking office. BATF agent Bob Hoffman said "the people I put in jail have more honor than the top administration in this organization." [9] Agent Lou Tomasello told the television audience: "I took an oath. And the thing I find totally abhorrent and disgusting is these higher-level people took that same oath and they violate the basic principles and tenets of the Constitution and the laws and simple ethics and morality." [10]

The BATF had investigated David Koresh in the summer of 1992. The BATF investigation began about a month after an Australian tabloid television program produced a story about Koresh. [11] Having lain moribund since the summer, the BATF investigation perked up in mid-November. [12] By early December, the BATF was planning the raid on a seventy-seven acre property outside Waco, the Mount Carmel Center, *4 which the Branch Davidians called their communal home. [13]

A BATF memo written two days before the February 28, 1993 raid explained "this operation will generate considerable media attention, both locally [Texas] and nationally." [14] The BATF public relations director, Sharon Wheeler, called reporters to ask them for their weekend phone numbers. The reporters contend, and Wheeler denies, that she asked them if they would be interested in covering a weapons raid on a "cult." Wheeler, on the other hand, states that she merely told them, "We have something going down." [15] After the raid, the BATF at first denied there had been any media contacts. [16] Journalist Ronald Kessler reports that the BATF told eleven media outlets that the raid was coming. [17] The Department of the Treasury has refused to release the pre-raid memos which deal with publicity, asserting that they are exempt from the Freedom of Information Act. [18]

In any case, the BATF's public relations officer was stationed in Waco on the day of the raid ready to issue a press release announcing the raid's success. [19] A much-publicized raid, resulting in the seizure of hundreds of guns and dozens of "cultists" might reasonably be expected to improve the fortunes of BATF Director, Stephen Higgins, who was scheduled to testify before the U.S. Senate Appropriations Subcommittee on Treasury, Postal Service, and General Government on March 10, 1993. Investigative reporter Carol Vinzant wrote:

*5 In the jargon of at least one ATF office, the Waco raid was what is known as a ZBO ("Zee Big One"), a press-drawing stunt that when shown to Congress at budget time justifies more funding. One of the largest deployments in bureau history, the attack on the Branch Davidians compound was, in the eyes of some of the agents, the ultimate ZBO. [20]

60 Minutes rebroadcast the BATF segment a few months later. Host Mike Wallace opined that almost all the agents he talked to said that they believe the initial attack on that cult in Waco was a publicity stunt--the main goal of which was to improve ATF's tarnished image. [21] The codeword for the beginning of the BATF raid was "showtime." [22]

B. Initial Investigation
In June of 1992, an investigation began of possible violations of federal firearms laws by David Koresh and a few of his close associates. The justification for the initial investigation was that a United Parcel Service (UPS) driver reported to the McClennan County (Waco) Sheriff's Office several deliveries of firearms components and explosives which the driver considered suspicious.
The driver found it suspicious that some attempted deliveries to a place known as the Mag Bag, a garage rented by the Davidians near Waco, resulted in the driver being instructed to deliver the packages to Koresh's residence at the Mount Carmel Center. [23] According to the UPS driver, his suspicions were heightened when boxes broke open by *6 accident, and he could tell their contents were inert hand grenade hulls and a quantity of blackpowder. [24] The Waco Sheriff's Office was informed of the "suspicious" deliveries, and the sheriff's office in turn notified the BATF. [25]
Koresh had a number of raising funds schemes for the Branch Davidians: mounting inert grenade hulls as plaques and selling them at gun shows was one of their biggest money-makers. [26] Custom-sewn magazine vests in tall and big sizes, under the "David Koresh Brand" label, were another speciality. [27] Koresh also used gun shows as a way to make a profit on selling surplus meals-ready-to-eat (MREs). In addition, the Davidians assembled gun parts into complete guns, which they sold to the public through a licensed dealer. The Davidians also bought many semi-automatic rifles as an investment, assuming that an anti-gun President would act in such a way as to increase their value dramatically; just as President George Bush's ban on the import of such rifles had increased their value in 1989. [28] On the day of the BATF attack, many of the Davidian guns were on display miles away at a gun show.

While most guns owned by the Davidians were for investment purposes, the Davidians did own guns for protection. Koresh was concerned about a possible attack from George Roden, the former Branch Davidian leader, with whom Koresh and his followers had a shoot-out in 1987. [29] Roden, who escaped from an institution for the criminally insane and was later recaptured, had
reportedly threatened, "I'm not going to come back with BB guns." [30] They also feared attacks from other persons who regularly sent hate mail to Koresh.

*7 C. The National Firearms Act
Ownership of machine guns in the United States is legal, but the owner must pay a federal tax and file a registration form with the Bureau of Alcohol, Tobacco and Firearms. [31] The BATF's legal reason for the Branch Davidian investigation was to see if the Davidians were manufacturing machine guns illegally. If, on the other hand, Koresh had simply bought machine guns that were made before 1986, rather than allegedly manufacturing them, and if Koresh had paid the proper tax of $200 per gun and filed the appropriate paperwork, he would have been in full compliance with the law. In other words, the legal cause for the BATF investigation was not machine guns per se, but ownership or manufacturing of machine guns without registration and taxation. The seventy- six person BATF Mount Carmel raid was, ultimately, a tax collection case.

The federal law requiring machine guns to be taxed and registered is the National Firearms Act of 1934 (NFA), which was enacted with little controversy after the National Rifle Association stated that it had no objection to the law. [32] If not for the National Firearms Act, there would probably have been no BATF investigation or raid on Mount Carmel, and needless deaths would not have occurred.

As part of the Branch Davidian investigation, the BATF checked its records to determine whether "Vernon Howell" (which was the birth name of the Branch Davidian prophet, who had been using the name "David Koresh" for the past several years) or Paul Fatta (who ran the *8 Branch Davidian table at gun shows) had federal machine gun licenses. The BATF also checked its records to determine whether Vernon Howell, David Koresh, David Jones (one of Koresh's in- laws), or Paul Fatta were federally-licensed firearms dealers. [33] The records said they were not. [34]
On the other hand, the BATF knew that its records of registered machine gun owners were grossly incomplete. When a person is charged with possessing an unregistered machine gun, federal prosecutors call as a witness a BATF employee who testifies that the National Firearms Registration and Transfer Record (NFR&TR) database was checked, and the defendant was not listed as a registered machine gun owner. The federal database of machine gun owners, the NFR&TR, is maintained by the BATF. In October 1995, on a BATF agent training videotape, Thomas Busey, who was then head of the National Firearms Act Branch at the BATF, in charge of the machine gun records, made a startling admission. [35] Busey explained, "when we testify in court, we testify that the database is one hundred percent accurate. That's what we testify to, and we will always testify to that. As you probably well *9 know, that may not be one hundred percent true." [36] He elaborated: "when I first came in a year ago, our error rate was between forty-nine and fifty percent, so you can imagine what the accuracy of the NFRTR could be, if your error rate's forty-nine to fifty percent. The error rate is now down below eight percent . . . ." [37]

In other words, for many years BATF employees have testified many times per year in NFA prosecutions that the NFR&TR database is one hundred percent accurate. That testimony has been consistently false.

Ever since the United States Supreme Court's 1963 decision in Brady v. Maryland, prosecutors have been obliged to turn over to defendants any exculpatory material which is known to the prosecution. [38] The United States Department of Justice, whose United States Attorneys prosecute all NFA cases, has commendably lived up to this obligation. In late 1996, the Department of Justice made a mass mailing to attorneys of convicted NFA defendants, admitting that false evidence may well have been used to convict those defendants. The Department of Justice eventually found out that the BATF had known about the serious problems with the NFR&TR database since the 1970s, but BATF had failed to correct the problem. [39]

The first case dismissed as a result of the BATF's disclosure of false testimony came in May 1996. A Virginia machine gun manufacturer, John D. LeaSure, had received proper BATF authorization to manufacture and transfer five machine guns to a particular customer. After making the guns, LeaSure decided he wanted to keep them for himself, as a machine gun manufacturer is legally allowed to do. He voided out the transfer forms ("Form 3") to his customer, and faxed the voided forms *10 to the BATF office. Thus, he ensured that the machine guns would be properly registered as belonging to him. [40]

Long afterward, the BATF raided LeaSure's home, and charged him with possessing the five machine guns without proper registration. The BATF stated that the Form 3s showed that the machine guns were registered to someone else. LeaSure replied that the Form 3s had been voided, and the voided forms had been faxed to the BATF. Telephone company records showed a twenty-one minute toll call from LeaSure's fax line to the fax line for the BATF's NFA Branch on the day that LeaSure said he had faxed the voided Form 3s. [41]

At trial, a BATF records custodian testified for the prosecution that the BATF's official records did not show any voided transfers. But at a rehearing, the witness admitted that two BATF employees in the NFA Branch had received punitive transfers because they had thrown away faxed NFA registration documents in order to reduce their personal workload. After LeaSure's attorney produced a transcript of Busey's training session, the trial judge dismissed the charges against LeaSure. [42]

The simplest step to prevent a repetition of the Waco disaster would be to repeal the National Firearms Act of 1934 (NFA). States are perfectly capable of enacting their own laws regarding machine gun possession. Simple possession of an object within the boundaries of a single state is not usually an issue of legitimate federal concern. Repeal of the NFA would not mean that machine guns would be unregulated; state laws would remain in force, and states could enact additional regulations or even prohibitions. State and local police would enforce state and local laws regarding machine guns; but the repeal of the NFA would mean that the federal BATF would not be in the business of enforcing a federal machine gun law. The BATF would have to assign its personnel to more important matters, such as interstate gun-running, and the risk of people being assaulted by the BATF for violating a tax and paperwork statute would be reduced as the BATF's jurisdiction *11 was reduced.

It is entirely possible to support registration and taxation of machine gun ownership, while also believing that the federal government is not the proper entity to keep the registration records and collect the taxes. There is little public safety benefit from having a very troubled federal bureau perform a regulatory function which could easily be performed by state governments.

D. First Results of the Investigation
The BATF investigation of Koresh quickly led to Henry McMahon, doing business as Hewitt Handguns, Koresh's favorite gun dealer. The lead BATF agent on the Koresh case, Davy Aguilera, listed in his affidavit for the search and arrest warrants all of the relatively recent purchases by Koresh, including flare launchers, over one hundred rifles, an M-76 grenade launcher, various kits, cardboard tubes, blackpowder, and practice grenades. [43] All of those items may be lawfully owned without the government's permission. [44] Accordingly, the purchases, while listed in the affidavit, did not in themselves establish probable cause that Koresh or his followers had violated or were planning to violate any federal law.

To people who hate firearms, the idea of many dozens of firearms being in the same place is repulsive. Such people have every right to lobby for changes in current firearms law, so as to make it illegal to possess large numbers of firearms without special government permission. But in the absence of such legislation, there is nothing criminal about owning a large number of guns.
While the Branch Davidians did accumulate a huge cache of ammunition, the main reason they seemed to have a large number of guns was because they lived together in the same large building. If the Branch Davidians had, as they did from their founding in 1935 until the late 1980s, lived in separate houses on the same ranch, their gun ownership rate would have been unremarkable by Texas standards. Further, there are many gun collectors in the United States who personally *12 own more firearms than did the Branch Davidians collectively. A large gun collection is entirely lawful and is not evidence of criminal activity.

Obviously, it is not illegal to exercise one's First Amendment rights by believing in a false messiah such as David Koresh. Equally important, to exercise one's Second Amendment rights to the fullest degree is not against the law. Yet the BATF warrant application insinuated that the simple possession of a large number of guns was somehow evidence of crime. [45] Such insinuations are not consistent with a federal agent's oath to uphold the Constitution. For an agency to tolerate such behavior on the part of an agent is a significant sign of the agency's own disregard for the Constitution.

The question for the magistrate was not whether the Branch Davidians were normal and righteous, or weird and sinful, but whether the warrant application presented probable cause to believe that evidence of a crime would be found at the Mount Carmel Center. Under our Constitution, an observation that people are heavily exercising their constitutional rights must not be an element in creating probable cause.

Advance to Part Two of Waco Search Warrant Article

1 . Research Director, Independence Institute, J.D. 1985, University of Michigan Law School; B.A. in History, 1982, Brown University. This article is based on, but revised from, a chapter of the authors' book No More Wacos: What's Wrong with Federal Law Enforcement and How to Fix It (1997) . The Independence Institute world-wide web site includes a Waco page offering a wide variety of Waco resources, including, inter alia, a link to the search warrant application discussed in this article. Independence Institute (visited Feb. 7, 1997).

2 . Research Coordinator, National Rifle Association , Ph.D. in Government, 1970, University of Virginia; B.A. in Political Science, 1964, University of California at Riverside.
(c) 1996 David B. Kopel & Paul H. Blackman. The views expressed in this in this article are the authors alone, and do not necessarily reflect the position of any organization, including the National Rifle Association or the Independence Institute.

3 . Illinois v. Gates, 462 U.S. 213 (1983).

4 . Aguilar v. Texas, 378 U.S. 108 (1964) .

5 . Daniel Wattenberg, Gunning for Koresh, Am. Spectator, Aug. 1993 , at 39. An internal Treasury Department investigation, which was later obtained by the Associated Press pursuant to the Freedom of Information Act, confirms that the BATF failed to prevent sexual harassment and disciplined employees who complained about it. For example, one criminal investigator who had filed a sexual harassment complaint was threatened with a thirty-day suspension for "engaging in repeated criminal conduct." The "repeated criminal conduct" consisted of three separate guilty pleas to failure to control his barking dog. Treasury Report Confirms BATF Harassment , Gun Week, June 24, 1993, at 3.

6 . ATF Settles Race Suit , Nat'l L.J., July 22, 1996, at A8. The suit was settled in 1996 with the BATF agreeing to pay 5.9 million dollars in damages to 241 current and former agents. Id.

7 . Stephen Labaton, Saved from Extinction, Agency Faces New Peril , N.Y. Times, Mar. 4, 1993, at A5.

8 . 60 Minutes (CBS television broadcast, Jan. 10, 1993). See also Bob Lesmeister, Bad Influence: Corruption within the Ranks of BATF , American Firearms Industry , May 1995, at 40, 61.

9 . Id.

10 . Id.

11 . Stuart A. Wright, Armageddon in Waco: Critical Perspectives on the Branch Davidian Conflict 88 (1995).

12 . Affidavit of Davy Aguilera, Feb. 25, 1993, reprinted in Activities of Federal Law Enforcement Agencies Toward the Branch Davidians: Joint Hearings Before the Subcomm. on Crime, and the National Security, International Affairs, and Criminal Justice, 104th Cong. 996-1002 (1995) [hereinafter Aguilera]. A copy on the internet is also available at < http://www.shadeslanding.com/firearms/%20read6.html > (visited Mar. 7, 1997).

13 . U.S. Dept. of Treasury, Report of the Bureau of Alcohol, Tobacco, and Firearms, Investigation of Vernon Wayne Howell also known as David Koresh 32, 37 (Sept. 1993) [hereinafter Treasury Report].

14 . Interoffice Memorandum from Christopher Culyer to Michael D. Langan, Office of the Assistant Secretary for Enforcement (Feb. 26, 1993) reprinted in Treasury Report, supra note 13, at E-3.

15 . Activities of Federal Law Enforcement Agencies Toward the Branch Davidians: Joint Hearings Before the Subcomm. on Crime and National Security, International Affairs, and Criminal Justice, 104th Cong., 1st sess. 762-63 (1995) [hereinafter Joint Hearings]; James R. Lewis, From the Ashes: Making Sense of Waco 92 (James R. Lewis, ed. 1993); Clifford L. Linedecker, Massacre at Waco, Texas 168 (1993) (Wheeler contacted NBC and ABC affiliates in Dallas the day before the raid, and told them that something big was shaping up).

16 . Id.

17 . Ronald Kessler, The FBI 420 (1993).

18 . Joe Rosenbloom, III, Waco: More than Simple Blunders? Wall St. J., Oct. 17, 1995, at A20.

19 . At cultists' Trial, Fights and Tears , N.Y. Times, Jan. 24, 1993, at A9. (BATF Agent Barbara Maxwell's testimony at the January 1994 Branch Davidian trial).

20 . Carol Vinzant, ATF-Troop , Spy, Mar. 1994, at 47.

21 . 60 Minutes (CBS television broadcast, May 23, 1993).

22 . The BATF's public information officer, Sharon Wheeler, emphasized in testimony that "showtime" was not the name of the operation, but the word "to be used to alert everyone that the agents had stepped off the trucks." Joint Hearings, supra note 15, at 795.

23 . There is a fairly simple, non-suspicious explanation: The deliveries not accepted at the Mag Bag were Cash on Delivery (C.O.D.). Aguilera, supra note 12, at 996. Firearms components ordered in quantity cost money. The safer place to keep the large sum of money for which to pay for a delivery which might come at any time was at the Mount Carmel Center, rather than at the Mag Bag, which was just a rented garage. Apparently there was cash at the Mt. Carmel Center because as soon as the siege began, Koresh sent out $1,000 to take care of the children, and promised more money if and as needed. Transcripts of BATF Audio Tapes of the Negotiations between Federal Law Enforcement and the Branch Davidians (Mar. 20, 1993) (on file with author Kopel).

24 . Treasury Report, supra note 13 , at 17, 74.

25 . Id. at 17.

26 . Jim McGee & William Clairborne, The Transformation of the Waco "Messiah," Wash. Post, May 9, 1993, at A19; Committee on Government Reform and Oversight, Investigation into the Activities of Federal Law Enforcement Agencies Toward the Branch Davidians, H.R. No. 104-749, at 13 (Aug. 2, 1996). [Hereinafter Committee Report]. Download full text of Report. Or to read on-line, go the Library of Congress "Thomas" site , and enter the Report number, 104-749.

27 . Ken Fawcett, Blind Justice: A Chronology of the Historic Trial of Eleven Branch Davidians in January 1994, at 26 (2d ed. 1994) (testimony of Karen Kilpatrick).

28 . Interview by the National Rifle Association with Henry S. McMahon, Jr. & Karen Kilpatrick, Washington, D.C. (May 25, 1993), at 3, 26 (on file with author Blackman) [hereinafter Interview]; James L. Pate, Waco: Behind the Cover-Up , Soldier of Futune, Nov. 1993, at 38. The expectation of skyrocketing prices was also given as the reason for investing in a huge quantity of ammunition. Id.

29 . Interview, supra note 28, at 105-08.

30 . Id . Roden's first escape was in 1993, and he was quickly recaptured. Carol Moore, The Davidian Massacre 18 (1995) (an earlier version of the book is available on the Internet at < http://www.shadeslanding.com/firearms/waco.massacre.html > (visited Jan. 31, 1997)); Pete Slover & Diane Jennings, Source of Money for Davidian Sect Remains a Mystery , Dal. Morn. News, Mar. 8, 1993, at A1. Roden escaped again in September 1995, speedily picked up some cash (perhaps from his ex-wife, who currently gives tours of the Mount Carmel Center), and headed for New York. He was apprehended at the Israeli consulate, attempting to obtain a visa to Israel. Carol Moore, Update on Waco, Oct. 8, 1995 (email broadcast) (on file with author Kopel).

31 . Some states, but not Texas, prohibit machine gun ownership entirely. About 15,500 machine guns are lawfully owned by Texans. Alan Korwin & Georgene Lockwood, The Texas Gunowner's Guide 84 (1996). A 1986 federal law bans possession of most machine guns manufactured after May 19, 1986, but does not prevent acquisition of machine guns manufactured before that date. 18 U.S.C. S 922(o) (1994).

32 . The original bill had proposed regulating handguns the same as machine guns, and the NRA objected. When this provision was removed, the bill was speedily enacted.

33 . Aguilera, supra note 12 , at 1000.

34 . A Federal Firearms License is legally required in order to sell guns as a business; no license is required to sell merchandise at guns shows, as long as the merchandise is something other than guns. See 18 U.S.C. SS 921 , 922 (1994).
The BATF apparently did not check whether Mike Schroeder (one of the regular recipients of UPS packages) was a licensed machine gun owner or a licensed gun dealer. (He was not.) In the official Treasury Department Report of the BATF investigation, the Treasury Department misleadingly suggested that Aguilera checked lots of names--"neither Koresh nor any of his known followers owned such a registered machinegun"--whereas Aguilera's affidavit only suggested a few names know and few checked. Treasury Report,
supra note 13 , at 24. BATF Directory Higgins later reported (inconsistent with Aguilera's affidavit) in a letter to Rep. Jack Brooks on June 17, 1993, that on January 25, 1993, the BATF checked the names of all adults known to be a Mount Carmel to determine whether they were licensed to deal in firearms or registered National Firearms Act weapons owners, with negative results. It is possible that Aguilera's initial check of a small number of names was supplemented  later with an incomplete but longer list, perhaps based on intelligence gleaned by the undercover agent. The accuracy of Higgins’ statement, however, seems dubious, not only because of inconsistency with the affidavit, where it would have strengthened it. In addition, however, the poor surveillance work (Committee Report, supra note 26 , at 11-12) and the FBI negotiators’ unfamiliarity with the names and spelling of names of residents of Mount Carmel, argue against the possibility of such a thorough check. In addition, the BATF records custodian testifying at the eventual trial of the surviving Branch Davidians, noted only 14 names having been checked. Trial Transcript, United States v. Brad Branch, Crim. No. W-93-CR-046 at 4955-4958 (W.D.Tex., 1994)[hereinafter "Trial Transcript"],  It should be noted, however, that BATF underestimated the number of persons at the ranch by about one-third, and thus could not run checks on a large number of persons at the ranch.

35 . Roll Call Training (visited Feb. 21, 1997) < http://www.machinegunnews.com/busey.html > (providing a transcript of Tom Busey's remarks and other BATF statements that the database is now reliable). See generally James H. Jeffries, III, FOIA Produces Evidence of BATF Institutional Perjury, Gun Week, Sept. 10, 1996, at 4; James L. Pate, Shadows of Many Doubts , Soldier of Fortune, Sept. 1996, at 48-49, 70.

36 . Roll Call Training, supra note 35; Jeffries, supra note 35, at 4.

37 . Id. According to the agenda for a BATF "Firearms and Explosives Data Integration Meeting" held in Martinsburg, West Virginia, Nov. 9-10, 1994, two months before, an NFR&TR error rate was found to be fifty percent; that rate had been reduced to two percent for common errors. Id.

38 . Brady v. Maryland, 373 U.S. 83 (1963).

39 . Jeffries, supra note 35 , at 4; Pate, supra note 35 , at 49.

40 . Id.

41 . Id.

42 . Id. (citing United States v. LeaSure, criminal no. 4:95CR54 (E.D. Vir., Newport News Div., May 21, 1996)).

43 . Aguilera, supra note 12 , at 1001.

44 . The only unlawful item would be the grenade launcher if it were an M-79.

45 . See Aguilera, supra note 12 .


Advance to Part Two of Waco Search Warrant Article

Advance to Part Three of Waco Search Warrant Article

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