Hamline Journal of Public Law and
Volume 18, number 1, Fall 1996
THE UNWARRANTED WARRANT: THE WACO SEARCH WARRANT AND THE DECLINE OF
THE FOURTH AMENDMENT
by David B. Kopel  & Paul H. Blackman
1996 Hamline Journal of Public Law and Policy; David B. Kopel, Paul H.
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[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
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  "totality of the
circumstances" standard for judging the sufficiency of a warrant application
with the two-part Aguilar  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.  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.  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.
 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."  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."
 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." 
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.  Having lain moribund
since the summer, the BATF investigation perked up in mid-November.  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
BATF memo written two days before the February 28, 1993 raid explained "this
operation will generate considerable media attention, both locally [Texas] and
nationally."  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." 
After the raid, the BATF at first denied there had been any media contacts.  Journalist Ronald
Kessler reports that the BATF told eleven media outlets that the raid was
coming.  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
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.  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. 
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.  The codeword for the
beginning of the BATF raid was "showtime." 
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.
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.  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.  The Waco Sheriff's
Office was informed of the "suspicious" deliveries, and the sheriff's office in
turn notified the BATF. 
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
Custom-sewn magazine vests in tall and big sizes, under the "David Koresh Brand"
label, were another speciality.  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.  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.  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."  They also feared
attacks from other persons who regularly sent hate mail to
*7 C. The National Firearms Act
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.
 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.
 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.
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.  The records said they
were not. 
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.
 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."  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 . . . ." 
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.  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. 
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. 
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. 
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. 
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
D. First Results of the
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.  All of those items
may be lawfully owned without the government's permission.  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
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
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.  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
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.
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.
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.
10 . Id.
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
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
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
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
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)
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
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).
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
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.
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
45 . See Aguilera, supra note 12 .
Advance to Part Two of Waco Search Warrant
Advance to Part Three of Waco Search
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