The following is the text of the 67-page instructions to the jury of the Branch Davidian trial, to be read to the jury on Tuesday, Feb. 22, 1994
Page breaks will be shown by a horizontal line.
Page 1 is a cover sheet, and is omitted.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
UNITES STATES OF AMERICA $
$
v. $ Criminal No. W-93-CR-046
$
BRAD EUGENE BRANCH (2), $
KEVIN WHITECLIFF (3), $
CLIVE DOYLE (4), $
JAIME CASTILLO (5), $
LIVINGSTONE FAGAN (6), $
PAUL GORDON FATTA (7), $
WOODROW KENDRICK, also known $
as BOB KENDRICK (8), $
NORMAN WASHINGTON ALLISON, also $
known as DELROY NASH (9), $
GRAEME LEONARD CRADDOCK (10), $
RENOS AVRAAM (11), and $
RUTH OTTMAN RIDDLE (12) $
COURT'S INSTRUCTIONS TO THE JURY
Members of the Jury:
In any jury trial there are, in effect, two judges. I am one of the
judges; the other is the jury. It is my duty to preside over the trial
and to decide what evidence is proper for your consideration. It is also
my duty at the end of the trial to explain to you the rules of law that
you must follow and apply in arriving at your verdict.
First, I will give you some general instructions which apply in every
case, for example, instructions about burden of proof and how to judge the
believability of witnesses. Then I will give you some specific rules of
law about this particular case, and finally, I will explain to you the
procedures you should follow in your deliberations.
2
You, as jurors, are the judges of the facts. But in determin- ing
what actually happened--that is, in reaching your decision as to the
facts--it is your sworn duty to follow all of the rules of law as I
explain them to you.
You have no right to disregard or give special attention to any one
instruction, or to question the wisdom or correctness of any rule I may
state to you. You must not substitute or follow your own notion or
opinion as to what the law is or ought to be. It is your duty to apply
the law as I explain it to you, regardless of the consequences.
This Court recognizes that each of you is a reasonable person,
capable of making appropriate decisions based simply on your collective
common sense and experiences. However, our society is, and must be, ruled
by law and not by men. Thus it would violate the very linchpin of our
judicial system if you were to render a decision not based on the law as I
am now explaining it.
It is also your duty to base your verdict solely upon the evidence,
without prejudice or sympathy. That was the promise you made and the oath
you took before being accepted by the parties as jurors, and they have the
right to expect nothing less.
3
The indictment or formal charge against the Defendants is not
evidence of guilt. Indeed, the Defendants are presumed by the law to be
innocent. The law does not require a defendant to prove his or her
innocence or produce any evidence at all and no inference whatsoever may
be drawn from the election of a defendant not to testify. The government
has the burden of proving each Defendant guilty beyond a reasonable doubt,
and if it fails to do so, you must acquit him or her.
Thus, while the government's burden of proof is a strict or heavy
burden, it is not necessary that the Defendant's guilt be proved beyond
all possible doubt. It is only required that the government's proof
exclude any "reasonable doubt" concerning the Defendants' guilt.
A "reasonable doubt" is a doubt based on reason and common sense
after careful and impartial consideration of all the evidence in the case.
Proof beyond a reasonable doubt, therefore, is proof of such a convincing
character that you would be willing to rely and act upon it without
hesitation in the most important of your own affairs. If you are
convinced that one or more of the accused has been proved guilty beyond a
reasonable doubt, say so. If you are not convinced, say so.
4
As I told you earlier, it is your duty to determine the facts.
Specifically, you must determine whether the government has proven the
allegations of the indictment beyond a reasonable doubt. In doing so, you
must consider only the evidence presented during the trial, including the
sworn testimony of the witnesses and the exhibits. Remember that any
statements, objections, or arguments made by the lawyers are not evidence.
The function of the lawyers is to point out those things that are most
significant or most helpful to their side of the case, and in so doing to
call your attention to certain facts or inferences that might otherwise
escape your notice. In the final analysis, however, it is your own
recollection and interpretation of the evidence that controls. What the
lawyers say is not binding upon you.
Also, do not assume from anything I may have done or said during the
trial that I have any opinion concerning any of the issues in this case.
Except for the instructions to you on the law, you should disregard
anything I may have said during the trial in arriving at your own findings
as to the facts.
It is the duty of the Court to admonish an attorney who, out of zeal
for his cause, does something which I feel is not in keeping with the
rules of evidence or procedure. You are to draw absolutely no inference
against the side to whom an admonition of the Court may have been
addressed during the trial of this case.
5
While you should consider only the evidence, you are permitted to
draw such reasonable inferences from the testimony and exhibits as you
feel are justified in the light of common experience. In other words, you
may make deductions and reach conclusions that reason and common sense
lead you to draw from the facts which have been established by the
evidence.
You should not be concerned about whether the evidence is direct or
circumstantial. "Direct evidence" is the testimony of one who asserts
actual knowledge of a fact such as an eye witness. "Circumstantial
evidence" is proof of a chain of facts and circumstances indicating that a
defendant is either guilty or not guilty. The law makes no distinction
between the weight you may give to either direct or circumstantial
evidence.
6
I remind you that it is your job to decide whether the government has
proved the guilt of each Defendant beyond a reason- able doubt. In doing
so, you must consider all the evidence. This does not mean, however, that
you must accept all of the evidence as true or accurate.
You are the sole judges of the credibility or "believability" of each
witness and the weight to be given the witness' testimony. An important
part of your job will be making judgements about the testimony of the
witnesses who testified in this case. You should decide whether you
believe what each person had to say, and how important that testimony was.
In making that decision I suggest that you ask yourself a few questions:
Did the person impress you as honest? Did the witness have any particular
reason not to tell the truth? Did the witness have a personal interest in
the outcome of the case? Did the witness have any relationship with
either the government or the defense? Did the witness seem to have a good
memory? Did the witness seem to have the opportunity and ability to
understand the questions clearly and answer them directly? Did the
witness' testimony differ from the testimony of other witnesses? These
are a few of the considerations that will help you determine the accuracy
of what each witness said.
In making up your mind and reaching a verdict, do not make any
decisions simply because there were more witnesses on one side than on the
other. Do not reach a conclusion on a particular point just because there
were more witnesses testifying for one side on that point. Your job is to
think about the testimony of each witness
7
you have heard and decide how much you believe of what each witness had to
say.
The testimony of a witness may be discredited by showing that the
witness testified falsely concerning a material matter, or by evidence
that at some other time the witness said or did something, or failed to
say or do something, which is inconsistent with the testimony the witness
gave at this trial.
If you believe that a witness has been discredited in this manner, it
is your exclusive right to give the testimony of that witness whatever
weight you think at this trial.
You will always bear in mind, however, that the law never imposes
upon a defendant in a criminal case the burden or duty of calling any
witnesses or producing any evidence, and no inference whatsoever may be
drawn from the election of eny defendant not to testify.
8
Where a defendant has offered evidence of good general reputation for
truth and veracity, or honesty and integrity, or as a law-abiding citizen,
you should consider such evidence along with all the other evidence in the
case.
Evidence of a Defendant's reputation, inconsistent with those traits
of character ordinarily involved in the commission of the crime charged,
may give rise to a reasonable doubt, since you may think it improbable
that a person of good character in respect to those traits would commit
such a crime.
You will always bear in mind, however, that the law never imposes
unon a Defendant in a criminal case the burden or duty of calling any
witnesses or producing any evidence.
9
You have heard that some of the witnesses who testified were
convicted of felony offenses in the past. Convictions are factors you may
consider in deciding whether to believe a witness, but they do not
necessarily destroy a witness' credibility. They have been brought to
your attention only because you may wish to consider them when you decide
whether you believe the witness' testimony.
10
The testimony of an alleged accomplice, and the testimony of one who
provides evidence as an informer for pay or for immunity from punishment,
hope of leniency or for other personal advantage or vindication, must
always be examined and weighed by the jury with greater care and caution
than the testimony of ordinary witnesses. You, the jury, must decide
whether such witness' testimony has been affected by any of those
circumstances, or by his or her interest in the outcome of the case, or by
prejudice against the Defendant, or by the benefits that he or she has
received either financially, or as a result of being immunized from
prosecution or hope of leniency.
You should never convict a Defendant upon the unsupported testimony
of such a witness unless you believe that testimony beyond a reasonable
doubt.
11
In this case the government called Kathryn Schroeder, who is an
alleged co-conspirator. The government has entered into a plea agreement
with her, providing for her agreement to cooperate with and testify
truthfully if called as a witness by the government in exchange for the
promise of more lenient treatment than she otherwise would have received.
Such plea bargaining, as it is called, has been approved as lawful and is
expressly provided for in the rules of this court.
An alleged co-conspirator, including one who has entered into a plea
agreement with the government, is not prohibited from testifying. On the
contrary, the testimony of such a witness may alone be of sufficient
weight to sustain a verdict of guilty. However, you should keep in mind
that such testimony is always to be received with caution and weighed with
great care. You should never convict a Defendant upon the unsupported
testimony of an alleged con-conspirator unless you believe that testimony
beyond a reasonable doubt; and the fact that such witness has entered a
plea of guilty to the offense charged is not evidence, in and of itself,
to the guilt of any other person.
12
If scientific, technical or other specialized knowledge might assist
the jury in understanding the evidence or in determining a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify and state an opinion concerning such
matters.
Merely because an expert witness has expressed an opinion does not
mean, however, that you must accept this opinion. The same as with any
other witness, it is up to you to decide whether you believe this
testimony and choose to rely upon it. Part of that decision will depend
on your judgement about whether the witness' background or training and
experience is sufficient for the witness to give the expert opinion that
you heard. You must also decide whether the witness' opinions were based
on sound reason, judgement, and information.
13
In determining whether any statement, claimed to have been made by a
Defendant outside of court and after an alleged crime has been committed,
was knowingly and voluntarily made, you should consider the evidence
concerning such a statement with caution and great care, and should give
such weight to the statement as you feel it deserves under the
circumstances.
You may consider in that regard such factors as the age, sex,
training, education, occupation, and physical and mental condition of the
Defendant, his of her treatment while under interrogation, and all the
other circumstances in evidence surrounding the making of the statement.
Of course, any such statement should not be considered in any way
whatsoever as evidence with respect to any other Defendant on trial.
14
In any criminal case the government must prove not only the essential
elements of the offense or offenses charged, as hereafter defined, but
must also prove, or course, the identity of each Defendant as a
perpetrator of the alleged offenses.
In evaluating the identification testimony of a witness you should
consider all of the factors already mentioned concerning your assessment
of the credibility of any witness in general, and should also consider, in
particular, whether the witness had an adequate opportunity to observe the
person in question, the prevailing conditions at that time in terms of
visibility or distance and the like, and whether the witness had known or
observed the person at earlier times.
You may also consider the circumstances surrounding the
identification itself including, for example, the manner in which the
Defendant was presented to the witness for identification, and the length
of time that elapsed between the incident in question and the next
opportunity the witness had to observe the Defendant.
If, after examining all the testimony and evidence in the case, you
have a reasonable doubt as to the identity of a Defendant as the
perpetrator of an offense charged, you must find that Defendant not
guilty.
15
Any notes that you have taken during this trial are only aids to your
memory. If your memory differs from your notes, you should rely on your
memory and not on the notes. The notes are not evidence. If you have not
taken notes, you should rely on your independent recollection of the
evidence and should not be unduly influenced by the notes of other jurors.
Notes are not entitled to any greater weight than the recollection or
impression of each juror concerning the testimony.
16
Government's Exhibit 2217 has been identified as a typewritten
transcript of the oral conversations which can be heard on the tape
recording received in evidence as Government's Exhibit 2216. The
transcript also purports, in some cases, to identify the speakers engaged
in such conversation.
I have admitted the transcript for the limited and secondary purpose
of aiding you in following the content of the conversation as you listen
to the tape recording, and also to aid you in identifying the speakers.
However, you are specifically instructed that whether the transcript
correctly or incorrectly reflects the content of the conversation or the
identity of the speakers is entirely for you to determine based upon your
own evaluation of the testimony you have heard concerning the preparation
of the transcript, and from your own examination of the transcript in
relation to your hearing of the tape recording itself as the primary
evidence of its contents; and, if you should determine that the transcript
is in any respect incorrect or unreliable, you should disregard it to that
extent.
17
COUNT ONE
Count One of the Indictment charges that from on or before February
1992, and continuing thereafter up to and including April 19, 1993, in the
Western District of Texas, Defendants, Brad Eugene Branch, Kevin A.
Whitecliff, Clive J. Doyle, Jaime Castillo, Livingstone Fagan, Paul Gordon
Fatta, Woodrow Kendrick, also known as Bob Kendrick, Norman Washington
Allison, also known as Delroy Nash, Graeme Leonard Craddock, Renos Avraam
and Ruth Ottman Riddle did knowingly, willfully and unlawfully combine,
conspire, confederate and agree together and with each other, and with
persons known and unknown to the Grand Jury, to kill, with malice
aforethought during the performance and on account of the performance of
their duties, officers and employees of the Bureau of Alcohol, Tobacco and
Firearms (hereinafter "ATF"), United States Department of the Treasury,
including but not limited to, ATF Special Agents Seven D. Willis, Robert
Williams, Conway C. LeBleu, and Todd W. McKeehan, and Agents of the
Federal Bureau of Investigation (hereinafter "FBI"), United States
Department of Justice, all agencies of the United States as specified in
Title 18, United States Code, Section 1114, all in violation of Title 18,
United States Code, Section 1117.
18
MEMBERS OF THE CONSPIRACY
With regard to the members of the alleged conspiracy, Count One of
the Indictment alleges that at all times pertinent to this indictment,
Vernon K. Howell, also known as David Koresh, was a member of and the
self-proclaimed prophet of a group of individuals who lived at a location
known as Mount Carmel, located near Waco, Texas. Steven Emil Schneider
and Douglas Wayne Martin were followers of and advisors to Vernon Howell,
also known as David Koresh. The Defendants, Brad Eugene Branch, Kevin A.
Whitecliff, Clive J. Doyle, Jaime Castillo, Livingstone Fagan, Paul Gordon
Fatta, Woodrow Kendrick, also known as Bob Kendrick, Norman Washington
Allison, also known as Delroy Nash, Graeme Leonard Craddock, Renos Avraam,
Ruth Ottman Riddle, and others were followers of Vernon K. Howell, also
known as David Koresh.
19
SCOPE AND NATURE OF THE CONSPIRACY
With regard to the scope and nature of the alleged conspiracy, Count
One of the Indictment alleges that it was a part of the conspiracy that
Vernon K. Howell, also known as David Koresh, would and did advocate and
encourage an armed confrontation, which he described as a "war," between
his followers and representatives of the United States government. Vernon
K. Howell, also known as David Koresh, originally predicted that this
"war" would occur in the Nation of Israel and later changed the location
to Mount Carmel, near Waco, Texas.
It was a part of the conspiracy that in order to prepare for the
"war" with the United States, Vernon K. Howell, also known as David
Koresh, would and did establish a unit among his followers which he called
the "Mighty Men." Defendants, Brad Eugene Branch, Kevin A. Whitecliff,
Clive J. Doyle, Jaime Castillo, Livingstone Fagan, Paul Gordon Fatta,
Woodrow Kendrick, also known as Bob Kendrick, Norman Washington Allison,
also known as Delroy Nash, Graeme Leonard Craddock, Renos Avraam, and
other followers were members of the "Mighty Men."
It was a part of the conspiracy that in order to arm his followers
for the "war" with the United States, Vernon K. Howell, also known as
David Koresh, would and did direct that a business location called "The
Mag Bag" be established near Mount Carmel for the purpose, among others,
of receiving shipments of paramilitary supplies. The supplies purchased
and received at The Mag Bar included: firearms part (including parts for
fully automatic AK-47
20
and M-16 rifles); thirty (30) round magazines and one hundred (100) round
magazines for M-16 and AK-47 rifles; pouches to carry large ammunition
magazines, substantial quantities of ammunition of various sizes
(including .50 caliber armor piercing ammunition); grenade launcher parts,
flare launchers, K-bar fighting knives, night vision equipment, hand
grenade hulls, kevlar helmets, bullet proof vests and other similar
equipment.
It was a part of the conspiracy that Defendants Brad Eugene Branch
and Paul Gordon Fatta would and did make the necessary arrangements to
obtain The Mag Bag location, which had a mailing address of Route 7, Box
555, Waco, Texas. It was further a part of the conspiracy that Defendant
Paul Gordon Fatta would and did acquire a Texas Sales and Use Tax Permit
in the name of "The Mag Bag." It was a part of the conspiracy that
Defendants Woodrow Kendrick, also known as Bob Kendrick, and Norman
Allison, also known as Delroy Nash, would and did occupy the premises for
the purpose (among others) of receiving paramilitary supplies.
It was a part of the conspiracy that Defendants Brad Eugene Branch,
Jaime Castillo, Paul Gordon Fatta and Woodrow Kendrick, also known as Bob
Kendrick, and others would and did acquire and assist in the acquisition
of weapons to be used in the "war" with the United States, including .50
caliber semi-automatic rifles.
It was a part of the conspiracy that Defendant Paul Gordon Fatta and
others, would and did assist in converting legally purchased
semi-automatic rifles to fully automatic rifles. It was a part of the
conspiracy that inert hand grenade shells would be
21
converted to live hand grenades for the purpose of waging "war" against
the United States government.
It was a part of the conspiracy that on February 28, 1993. after
becoming aware of a planned search of the premises of Mount Carmel by
agents of the ATF, Vernon K. Howell, also known as David Koresh, would and
did instruct his followers to prepare for the arrival of the federal
agents. It was a part of the conspiracy that Brad Eugene Branch, Kevin A.
Whitecliff, Clive J. Doyle, Jaime Castillo, Livingstone Fagan, Graeme
Leonard Craddock, Renos Avraam, Ruth Ottman Riddle, and others should and
did change into camouflage/combat clothing and equipment, gather their
pistols and rifles, load magazines, distribute hand grenades, assume
ambush positions and engage in other conduct designed to kill and attempt
to kill and aid and abet the killing of Agents of the ATF upon their
arrival at Mount Carmel.
It was a part of the conspiracy that on February 28, 1993, after the
ambush of ATF agents at Mount Carmel by their other conspirators,
Defendants, Norman Allison, also known as Delroy Nash, and Woodrow
Kendrick, also known as Bob Kendrick, and another person would arm
themselves at The Mag Bag and endeavor to forcibly enter Mount Carmel to
assist the other conspirators.
It was a part of the conspiracy that after the initial ambush of the
ATF, Defendants, Brad Eugene Branch, Kevin A. Whitecliff, Clive J. Doyle,
Jaime Castillo, Livingstone Fagan, Graeme Leonard Craddock, Renos Avraam,
Ruth Ottman Riddle, and others would and did forcibly resist and oppose
agents of the FBI who were
22
authorized to execute search warrants under the authority of the United
States from February 28, 1993, until each of them emerged from Mount
Carmel.
It was a part of the conspiracy that on April 18, 1993, Vernon K.
Howell, also known as David Koresh, and Steven Schneider would and did
finalize a plan to burn Mount Carmel in the event an effort was made to
finally end the siege by the FBI. The plan was communicated to other
residents of Mount Carmel.
It was a part of the conspiracy that on April 19, 1993, some of the
conspirators would and did fire upon tanks and other vehicles manned by
FBI agents in an attempt to drive them back from Mount Carmel.
It was a part of the conspiracy that on April 19, 1993, Vernon K.
Howell, also known as David Koresh, would give instructions to spread
flammable fuel within Mount Carmel upon learning that the FBI was to
introduce tear gas into Mount Carmel to end the siege. It was a part of
the conspiracy that an unidentified conspirator would and did give
instructions at about noon on April 19, 1993, to start the fires within
Mount Carmel.
23
OVERT ACTS
Count One of the Indictment alleges that the Defendants and their
conspirators, known and unknown, committed the following overt acts in
furtherance of such agreement and conspiracy:
1. On August 4, 1992, in the Western District of Texas, Vernon K.
Howell, also known as David Koresh, executed documentation covering the
purchase of 88 lower receivers for the AR-15 rifle, 16 handguns, and 10
rifles from Hewitt Handguns.
2. On February 28, 1993, in the Western District of Texas, Special
Agent Steven D. Willis of the Alcohol, Tobacco and Firearms was shot and
killed by conspirators while he was attempting to execute search and
arrest warrants.
3. On February 28, 1993, in the Western District of Texas, Special
Agent Robert Williams of the Alcohol, Tobacco and Firearms was shot and
killed by conspirators while he was attempting to execute search and
arrest warrants.
4. On February 28, 1993, in the Western District of Texas, Special
Agent Conway C. LeBleu of the Alcohol, Tobacco and Firearms was shot and
killed by conspirators while he was attempting to execute search and
arrest warrants.
5. On February 28, 1993, in the Western District of Texas, Special
Agent Todd W. McKeehan of the Alcohol, Tobacco and Firearms was shot and
killed by conspirators while he was attempting to execute search and
arrest warrants.
6. On February 28, 1993, in the Western District of Texas, Agents of
the Federal Bureau of Investigation were fired upon by
24
conspirators as they endeavored to serve arrest and search warrants.
All in violation of Title 18, United States Code, Section 1117.
25
ELEMENTS OF COUNT ONE
Title 18, United States Code, Section 1117 makes it a crime for two
or more persons to conspire to murder federal officers.
For you to find any Defendant guilty of this crime, you must be
convinced that the government has proved each of the following beyond a
reasonable doubt as to that Defendant:
First: That two or more persons made an agreement to
commit the crime of murder of federal agents as
charged in the Count Two of the Indictment;
Second: That the Defendant under consideration knew the
unlawful purpose of the agreement and joined it
willfully, that is, with the intent to further the
unlawful purpose;
Third: That at least one of the conspirators during the
existence of the conspiracy knowingly committed at
least one of the overt acts described on pages
______ of these Instructions, in order to
accomplish some object or purpose of the
conspiracy; and
Fourth: That the Defendant under consideration conspired to
kill federal agents with the requisite intent of
malice aforethought, as defined on page __ of these
Instructions.
26
CONSPIRACY
A "conspiracy" is an agreement between two or more persons to join
together to accomplish some unlawful purpose. It is a kind of
"partnership in crime" in which every member becomes the agent of every
other member.
One may become a member of a conspiracy without knowing all of the
details of the unlawful scheme or the identities of all the other alleged
conspirators. If a defendant understands the unlawful nature of a plan or
scheme and knowingly and intentionally joins in that plan or scheme on one
occasion, that is sufficient to convict him or her for conspiracy even
though that defendant had not participated before and even though the
defendant played only a minor part.
The government need not prove that the alleged conspirators entered
into any formal agreement, or that they directly stated between themselves
all the details of the scheme. Similarly, the government need not prove
that all of the details of the scheme alleged in the indictment were
actually agreed upon or carried out. Nor must it prove that all of the
persons alleged to have been members of the conspiracy were such, or that
the alleged con- spirators actually succeeded in accomplishing their
unlawful objectives.
Mere presence at the scene of an event, even with knowledge that a
crime is being committed, or the mere fact that certain persons may have
associated with each other, and may have assembled together and discussed
common aims and interests, does not
27
necessarily establish proof of the existence of a conspiracy. Also, a
person who has no knowledge of a conspiracy, but who happens to act in a
way which advances some purpose of a conspiracy, does not thereby become a
conspirator.
You must determine whether the conspiracy charged in the Indictment
existed, and, if it did, whether the Defendant under consideration was a
member of it. If you find that the conspiracy charged did not exist, then
you must return a not guilty verdict as to that count of the Indictment,
even though you find that some other conspiracy existed. If you find that
the Defendant under consideration was not a member of the conspiracy
charged in the Indictment, then you must find that Defendant not guilty
even though that Defendant may have been a member of some other
conspiracy.
In your consideration of the conspiracy offense as alleged in the
indictment you should first determine, from all of the tes- timony and
evidence in the case, whether or not the conspiracy existed as charged.
If you conclude that a conspiracy did exist as alleged, you should next
determine whether or not each Defendant willfully became a member of such
conspiracy.
In determining whether a defendant was a member of an alleged
conspiracy, however, the jury should consider only that evidence, if any,
pertaining to his or her own acts and statements. He or she is not
responsible for the acts or declarations of other alleged participants
until it is established beyond a reasonable doubt, first that a conspiracy
existed; and second, from evidence
28
of his or her own acts and statements, that the defendant was one of its
members.
On the other hand, if and when it does appear beyond a reasonable
doubt from the evidence in the case that a conspiracy did exist as
charged, and that the defendant under consideration was one of its
members, then the statements and acts knowingly made and done during such
conspiracy and in furtherance of its objects, by any other proven member
of the conspiracy, may be considered by the jury as evidence against that
defendant even though he or she was not present to hear the statements
made or see the acts done.
This is true because, as stated earlier, a conspiracy is a kind of
"partnership" so that under the law each member is an agent or partner of
every other member, and each member is bound by or responsible for the
acts and statements of every other member made in pursuance of their
scheme.
An "overt act" is any act knowingly committed by one of the
conspirators, in an effort to effect or accomplish some object or purpose
of the conspiracy. The overt act need not be criminal in nature, if
considered separately and apart from the conspiracy. It must, however, be
an act which follows and tends toward accomplish- ment of the plan or
scheme, and must be knowingly done in further- ance of some object or
purpose of the conspiracy charged in the indictment.
You must be unanimous in your decision of which overt acts, if any,
were committed. In other words, it would not be a unanimous verdict if
some of you believed one overt act was committed while
29
others of you believed a different overt act had been committed.
Additionally, the government must prove beyond a reasonable doubt that at
least one of these alleged overt acts was committed in order to accomplish
some object or purpose of the conspiracy by at least one member of
conspiracy.
30
A conspirator is responsible for offenses committed by other
conspirators if the conspirator was a member of the conspiracy when the
offense was committed and if the offense was committed in furtherance of,
or as a foreseeable consequence of, the conspiracy.
Therefore, if you have first found a Defendant guilty of the
conspiracy charged in Count One, and if you find beyond a reasonable doubt
that during the time the Defendant was a member of that conspiracy, other
conspirators committed the offenses in Counts Two, Three, and/or Four in
furtherance of or as a foreseeable consequence of that conspiracy, then
you may find the Defendant guilty of Counts Two, Three, and/or Four, even
though the Defendant may not have participated in any of the acts which
constitute the offenses described in Counts Two, Three, and Four. The
reason for this is that a conspirator committing a substantive offense
pursuant to a conspiracy is held to be the agent of the other
conspirators.
31
COUNT TWO
Count Two of the Indictment charges that on or about February 28,
1993, in the Western District of Texas, Defendants, Brad Eugene Branch,
Kevin A. Whitecliff, Clive J. Doyle, Jaime Castillo, Livingstone Fagan,
Paul Gordon Fatta, Woodrow Kendrick, also known as Bob Kendrick, Norman
Washington Allison, also known as Delroy Nash, Graeme Leonard Craddock,
Renos Avraam and Ruth Ottman Riddle by aiding and abetting unknown
principals and each other did knowingly, willfully and unlawfully kill,
with malice aforethought, ATF Special Agents Steven D. Willis, Robert
Williams, Conway C. LeBleu, and Todd W. McKeehan, Special Agents of the
Bureau of Alcohol, Tobacco and Firearms, while said agents were engaged in
the performance of their official duties, by shooting the said Agents with
a firearm, in violation of Title 18, United States Code, Sections 1114,
11119(a), and Title 18, United States Code, Section 2.
32
ELEMENTS OF COUNT TWO
Title 18, United States Code, Section 1111 makes it a crime for
anyone to murder another human being. Title 18, United States Code,
Section 1114, makes it a crime to kill a federal official, including an
Agent of the Bureau of Alcohol, Tobacco and Firearms, in the performance
of his official duties.
For you to find any Defendant guilty of murder of a federal agent,
you must be convinced that the government has proved each of the following
elements beyond a reasonable doubt as to that Defendant:
First: That the Defendant under consideration aided and
abetted the killing of ATF Special Agents Steven D.
Willis, Robert Williams, Conway C. LeBleu and Todd
W. McKeehan without lawful justification;
Second: That the persons killed were federal officers as
described below, who were then engaged in the
performance of their official duty, as charged;
Third: That the Defendant under consideration aided and
abetted the killing of ATF Special Agents Steven D.
Willis, Robert Williams, Conway C. LeBleu and Todd
W. McKeehan with malice aforethought; and
Fourth: That the Defendant under consideration did not act
in self-defense.
33
MALICE AFORETHOUGHT
"To kill with malice aforethought" (or "attempt to kill with malice
aforethought" as is applicable in Count Four) means either to kill (or
attempt to kill under Count Four) another person deliberately and
intentionally, or to act with callous and wanton disregard for human life.
To find malice aforethought, you need not be convinced that the Defendant
under consideration hated the persons killed (or attempted to be killed
under Count Four), or felt ill will toward the victim at the time.
In determining whether the killing (or attempted killing under Count
Four) was with malice aforethought, you may consider the use of a weapon
or instrument and the manner in which death was caused (or attempted under
Count Four).
You should consider all the facts and circumstances preceding,
surrounding, and following the killing (or attempted killing under Count
Four) which tend to shed light upon the condition of mind of each
Defendant, before and at the time of the killing (or attempted killing
under Count Four). No fact, no matter how small, no circumstance, no
matter how trivial, which bears upon the questions of malice aforethought
should escape your careful consideration.
34
SCOPE OF EMPLOYMENT
You are instructed that an Agent of the Bureau of Alcohol, Tobacco
and Firearms is one of the federal officers referred to in this law, and
that it is part of the official duty of such an officer to execute search
and arrest warrants issued by a Judge or Magistrate Judge of this Court.
To find a Defendant guilty of this offense, you must determine that the
government has proved beyond a reasonable doubt that ATF Special Agents
Steven D. Willis, Robert Williams, Conway C. LeBleu and Todd W. McKeehan
(or Special Agent Charles Meyer under Count Four) were acting within the
scope of their official duties as agents of the ATF. You are further
instructed that as a matter of law the ATF agents were not acting within
the scope of their official duties if they were engaged in a personal
frolic or acting merely as a private citizen. If you determine that the
government has failed to prove beyond a a reasonable doubt that ATF
Special Agents Steven D. Willis, Robert Williams, Conway C. LeBleu and
Todd W. McKeehan (or Special Agent Charles Meyer under Count Four) were
acting within the scope of their official duties as agents of the ATF, you
must find the Defendants not guilty.
35
AIDING AND ABETTING
Count Two alleges that each named Defendant aided and abetted the
other Defendants as well as other unknown persons in the commission of
this offense. You are instructed as follows with regard to what "aiding
and abetting" means:
Title 18, United States Code, Section 2, provides that the guilt of a
defendant in a criminal case may be established without proof that the
defendant personally did every act constituting the offense alleged. The
law recognizes that, ordinarily, anything a person can do for himself may
also be accomplished by that person through direction of another person as
his or her agent, or by acting in concert with, or under the direction of,
another person or persons, in a joint effort or enterprise.
So, if another person is acting under the direction of a defendant of
if the defendant joins another person and performs acts with the intent to
commit a crime, then the law holds that defendant responsible for the acts
and conduct of such other persons just as though the defendant had
committed the acts of engaged in such conduct.
Notice, however, that before any defendant may be held crim- inally
responsible for the acts of others it is necessary that the accused
deliberately associate himself in some way with the crime and participate
in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a
crime is being committed are not sufficient to establish that a defendant
either directed or aided and abetted the crime
36
unless you find beyond a reasonable doubt that the Defendant under
consideration was a participant and not merely a knowing spectator.
In other words, you may not find the Defendant guilty unless you find
beyond a reasonable doubt that every element of the offense as defined in
these instructions was committed by some person or persons and that the
Defendant voluntarily participated in its commission with the intent to
violate the law.
37
SELF-DEFENSE
In this self-defense instruction, the "male gender" pronouns will
include Defendant Ruth Riddle.
If a Defendant was not an aggressor, and had reasonable grounds to
believe and actually did believe that he was in imminent danger of death
or serious bodily harm from which he could save himself only by using
deadly force against his assailants, he had the right to employ deadly
force in order to defend himself. By "deadly force" is meant force which
is likely to cause death of serious bodily harm.
In order for a Defendant to have been justified in the use of deadly
force in self-defense, he must not have provoked the assault on him or
have been the aggressor. Mere words without more, do not constitute
provocation or aggression.
The circumstances under which a Defendant acted must have been such
as to produce in the mind of a reasonably prudent person, similarly
situated, the reasonable belief that the other persons were then about to
kill him or to do him serious bodily harm. In addition, a Defendant must
have actually believed that he was in imminent danger of death or serious
bodily harm and that deadly force must be used to repel it.
If evidence of self-defense is present, the government must prove
beyond a reasonable doubt that a Defendant did not act in self-defense.
If you find that the government has failed to prove beyond a reasonable
doubt that a Defendant did not act in self- defense, you must find that
Defendant not guilty. In other words,
38
if you have a reasonable doubt whether of not a Defendant acted in
self-defense, your verdict must be not guilty as to that Defendant.
If a Defendant had reasonable grounds to believe and actually did
believe that he was in imminent danger of death or serious bodily harm and
that deadly force was necessary to repel such danger, he would be
justified in using deadly force in self- defense, even though it may
afterwards have turned out that the appearances were false. If these
requirements are met, he could use deadly force even though there was in
fact neither purpose on the part of the other persons to kill him or do
him serious bodily harm, nor imminent danger that it would be done, nor
actual necessity that deadly force be used in self-defense.
If a Defendant had reasonable grounds to believe and actually did
believe that he was in imminent danger of death or serious bodily harm and
that deadly force was necessary to repel such danger, he was not required
to retreat or to consider whether he could safely retreat. He was
entitled to stand his ground and use such force as was reasonably
necessary under the circumstances to save his life or protect himself from
serious bodily harm.
However, if a Defendant could have safely retreated but did not do
so, his failure to retreat is a circumstance which you may consider,
together with all other circumstances, in determining whether he went
farther in repelling the danger, real or apparent, then he was justified
in doing under the circumstances.
Even if the other persons were the aggressors and a Defendant was
justified in using force in self-defense, he would not be
39
entitled to use any greater force than he had reasonable grounds to to
believe and actually did believe to be necessary under the circumstances
to save his life or avert serious bodily harm.
In determining whether a Defendant used excessive force in defending
himself, you may consider all the cimcumstances under which he acted. The
claim of self-defense is not necessarily defeated if greater force than
would have seemed necessary in careful reflection was used by a Defendant
in the heat of passion generated by an assault upon him. A belief which
may be unreasonable in careful reflection may be actually and reasonably
entertained in the heat of passion.
You must distinguish resisting arrest from self-defense. If you find
that the government has proved beyond a reasonable doubt that a Defendant
knew before he acted that the ATF agents were law- enforcement officers
who intended to search Mount Carmel or to arrest one or more of its
occupants, and that the Defendant under consideration acted to avoid
arrest or to prevent the search of Mount Carmel, you may not acquit that
Defendant by reason of self- defense. Additionally, if you are convinced
beyond a reasonable doubt that a Defendant prepared to ambush the ATF
agents upon their arrival at Mount Carmel by changing into combat
clothing, gathering pistols or rifles, loading magazines, or distributing
hand grenades, you may not acquit that Defendant by reason of self-
defense.
Generally, the law forbids forcible resistance to law enforcement
officers executing search and arrest warrants.
40
Therefore, the general rule is that knowledge of an officer's status in
law enforcement would automatically negate any claim of self-defense.
However, under the Fourth Amendment, an individual has the right to be
free from the use of excessive force by a law enforcement officer even
when that officer is making a lawful search or arrest. It has always been
a policy of the law to protect the physical integrity of every person from
unauthorized violence. This right arises from the Constitution's
guarantee to be free from unlawful attack upon one's person. Therefore,
if a federal officer uses excessive force, that is, force that is not
reasonable under all the circumstances from the officer's viewpoint, a
citizen has the right to defend himself from such force. However, the
citizen may only use so much force as is necessary to stop the officer's
use of excessive force. A citizen may only use deadly force under the
circumstances I have already explained to you.
Therefore, if you determine that the ATF agents caused the Defendant
under consideration to reasonably and honestly believe that he was about
to be killed or receive serious bodily harm due to the agents' use of
excessive or unreasonable force, then self- defense would be appropriate
if all of the above elements are met. On the other hand, if you find that
the ATF agents' conduct caused the Defendant under consideration to
believe that he or someone similarly situated was about to be arrested or
that Mount Carmel was about to be searched, and he acted to resist arrest,
then self- defense would not be appropriate.
41
You are instructed that federal agents are not automatically entitled
to use deadly force to make an arrest or to conduct a search. If a
suspect threatens an officer with a weapon of if there is probably cause
to believe that the suspect has committed a crime involving the infliction
or threatened infliction of serious bodily harm, deadly force may be used
to apprehend that suspect. An officer cannot, however, seize an unarmed,
non- dangerous suspect by shooting him dead.
42
You are instructed that federal law provides that upon the request of
a federal law enforcement officer or an attorney for the government, based
upon an affidavit containing probable cause, a search warrant may be
issued by a federal magistrate for a search of property or for a person
within the federal district. Moreover, if it appears from a complaint, a
written statement of the facts constituting an offense charged, or from an
affidavit or affidavits that an offense has been committed and that the
named Defendant has committed it, a warrant for the arrest of the named
Defendant shall issue to any officer authorized to execute it. The search
and arrest warrants entered into evidence in this case are, as such,
lawful process.
43
I have explained what the government has to prove for you to convict
a Defendant of aiding and abetting the murder of a federal agent. Your
first task is to decide whether the government has proved, beyond a
reasonable doubt, that the Defendant under consideration committed that
crime. If your verdict on that is guilty as to a particular Defendant,
you are finished with regard to that Defendant. But if your verdict is
not guilty as to a particular Defendant, or if you are unable to reach a
verdict as to a particular Defendant, you should then consider whether
that Defendant is guilty of voluntary manslaughter.
Manslaughter is the unlawful killing of a human being without malice.
Voluntary manslaughter is committed when a human being is killed
unlawfully in the sudden heat of passion caused by adequate provocation.
In order for a particular Defendant to be guilty of voluntary
manslaughter, you must be convinced beyond a reasonable doubt that the
government has proved the following elements:
First: That the Defendant under consideration aided and
abetted the killing of ATF Special Agents Steven D.
Willis, Robert Williams, Conway C. LeBleu and Todd
W. McKeehan without lawful justification;
Second: That the persons killed were federal officers as
described below, who were then engaged in the
performance of their official duty, as charged;
Third: That the Defendant under consideration acted in the
heat of passion; and
Fourth: That the heat of passion was caused by an adequate
provocation.
44
For a determination of whether the person killed was a federal
officer who was engaged in the performance of his official duty, refer to
the explanation on page __ of these Instructions.
For a full explanation of "aiding and abetting," refer to page ___ of
these Instructions.
"Heat of passion" is such a passion or emotion as naturally would be
aroused in the mind of an ordinary reasonable person of average
disposition in the same or similar circumstances as confronted the
Defendant under consideration at the time the killing occurred. It is
such a state of passion, or hot blood, or rage, anger, resentment, terror
or fear as to indicate the absence of deliberate design to kill or as to
cause one to act on impulse without reflection.
Thus, the law does not consider the peculiarities of a particular
Defendant's nature or temperament or condition. It will occur to you that
the underlying reason for this rule is the same as that which was the
basis of the "reasonable man" rule in the law of self-defense. The
passion which was aroused from the facts and circumstances that confronted
the Defendant under consideration must be such as also would have aroused
the passion of an ordinarily reasonable person likewise situated.
The basic inquiry is whether or not at the time of the killing, the
reason and judgement of the Defendant under consideration was obscured or
disturbed by passion--or dethroned, to use another expression--to such an
extent as would cause an ordinarily reasonable person of average
disposition to act rashly
45
and without deliberation and from passion rather than judgement.
Before you may find that the Defendant under consideration acted in
the heat of passion, you must also find that there was "adequate
provocation." Provocation, in order to be adequate to reduce the offense
from murder to voluntary manslaughter, must be such as might naturally
induce a reasonable man in the passion of the moment to lose self-control
and to act on impulse and without reflection.
A blow or other personal violence may constitute adequate
provocation. But a trivial or slight provocation, entirely
disproportionate to the violence of the retaliation, is not adequate
provocation to reduce the offense from murder to voluntary manslaughter.
Mere words standing alone, however, no matter how insulting, no matter how
offensive, no matter how abusive, are not adequate to reduce the offense.
You should ask yourself whether the ordinarily reasaonable man,
placed in the same situation in which the Defendant under consideration
found himself or herself, and knowing what the Defendant under
consideration then knew or believed he or she knew, have been thrown into
such heat of passion?
46
COUNT THREE
Count Three of the Indictment charges that on or about February 28,
1993, in the Western District of Texas, Defendants, Brad Eugene Branch,
Kevin A. Whitecliff, Jaime Castillo, Clive J. Doyle, Livingstone Fagan,
Paul Gordon Fatta, Graeme Leonard Craddock, Renos Avraam and Ruth Ottman
Riddle did knowingly use and carry a firearm during and in relation to the
commission of a crime of violence which may be prosecuted in a court of
the United States, to-wit: Conspiracy to Murder Officers and Employees of
the United States, in violation of Title 18, United States Code, Sections
1117 and 1114, all in violation of Title 18, United States Code, Section
924(c)(1).
47
ELEMENTS OF COUNT THREE
Title 18, United States Code, Section 924(c)(1) makes it a crime for
anyone to use or carry a firearm during and in relation to the commission
of a crime of violance which may be prosecuted in a court of the United
States.
For you to find a Defendant guilty of this crime, you must be
convinced that the government has proved each of the following beyond a
reasonable doubt:
First: That the Defendant under consideration committed
the crime alleged in Count One of the Indictment.
I instruct you that Conspiracy to Murder Officers
and Employees of the United States is a crime of
violance; and
Second: That the Defendant under consideration knowingly
used or carried a firearm during and in relation to
the Defendant's commission of the crime alleged in
Count One of the Indictment.
The government is not required to prove that the Defendant under
consideration actually fired the weapon or brandished it at someone in
order to prove "use" as that term is used in this instruction. However,
you must be convinced beyond a reasonable doubt that the firearm played a
role in or facilitated the commission of the crime of violence. In other
words, you must find that the firearm was an integral part of the offense
charged.
The term "firearm" means any weapon which will or is designed to or
may readily be converted to expel a projectile by the action of an
explosive. The term "firearm" also includes the frame or receiver of any
such weapon, or any firearm muffler of firearm silencer, or destructive
device.
48
COUNT FOUR
Count Four of the Indictment charges that on or about February 28,
1993, in the Western District of Texas, Defendants, Norman Washington
Allison, also known as Delroy Nash, and Woodrow Kendrick, also known as
Bob Kendrick, by aiding and abetting Michael Schroeder, deceased, named as
a principal, but not as a defendant herein, did knowingly, willfully, and
unlawfully attempt to kill, with malice aforethought, Charles Meyer, a
Special Agent of the Bureau of Alcohol, Tobacco and Firearms, while said
agent was engaged in the performance of his official duties, by shooting
at Special Agent Charles Meyer with a firearm, in violation of Title 18,
United States Code, Sections 1114, 1111(a), and Title 18, United States
Code, Section 2.
49
ELEMENTS OF COUNT FOUR
Title 18, United States Code, Sections 1111 and 1114, make it a crime
to kill or attempt to kill a federal official, including an Agent of the
Bureau of Alcohol, Tobacco and Firearms, in the performance of his
official duties.
For you to find any Defendant guilty of this offense, you must be
convinced that the government has proved each of the following elements
beyond a reasonable doubt as to that Defendant:
First: That the Defendant under consideration aided and
abetted the attempted killing of ATF Special Agent
Charles Meyer without lawful justification;
Second: That ATF Special Agent Charles Meyer was a federal
officer as described above, who was then engaged in
the performance of his official duty, as charged;
and
Third: That the Defendant under consideration aided and
abetted the attempted killing of ATF Special Agent
Charles Meyer with malice aforethought.
"To attempt to kill with malice aforethought" is defined on pages ___
of these Instructions.
For a determination of whether the person killed was a federal
officer who was engaged in the performance of his official duty, refer to
the explanation on page __ of these Instructions.
For a full explanation of "aiding and abetting," refer to page ___ of
these Instructions.
50
COUNT SIX
Count Six of the Indictment charges that on or about February 28,
1993, in the Western District of Texas, Defendant, Norman Washington
Allison, also known as Delroy Nash, did knowingly, willfully and
unlawfully use and carry the following firearm, to- wit: a Jennings .22
caliber pistol, bearing serial number 628835, during and in relation to
the commission of a violent crime which may be prosecuted in a court of
the United States, namely, attempting to kill a Federal officer, contrary
to Title 18, United States Code, Section 1114 and Section 2, and all in
violation of Title 18, United States Code, Section 924(c)(1).
51
ELEMENTS OF COUNT SIX
Title 18, United States Code, Section 924(c)(1) makes it a crime for
anyone to use or carry a firearm during and in relation to the commission
of a crime of violance which may be prosecuted in a court of the United
States.
For you to find Norman Allison guilty of this crime, you must be
convinced that the government has proved each of the following beyond a
reasonable doubt:
First: That the Defendant committed the crime alleged in
Count Four of the Indictment. I instruct you that
Attempting to kill a federal officer is a crime of
violance.
Second: That the Defendant knowingly used or carried a
firearm during and in relation to the Defendant's
commission of the crime alleged in Count Four of
the Indictment.
The term "use" and "firearm" are defined on page __ of these
Instructions, and you should refer to those definitions again.
52
COUNT SEVEN
Count Seven of the Indictment charges that on or about April 19,
1993, in the Western District of Texas, Defendant, Graeme Leonard
Craddock, did knowingly and unlawfully possess a firearm, as defined by
Section 5845(a), Title 26, United States Code, namely an explosive
grenade, being a firearm defined as a destructive device, which firearm
was not registered to him in the National Firearm Registration and
Transfer Record, in violation of Title 26, United States Code, Sections
5861(d) and 5871.
53
ELEMENTS OF COUNT SEVEN
Title 26, United States Code, Section 5861(d) makes it a crime for
anyone to possess certain kinds of unregistered firearms.
For you to find Graeme Craddock guilty of this crime, you must be
convinced that the government has proved each of the following beyond a
reasonable doubt:
First: That the Defendant knew he had a firearm in his
possession.
Second: That this firearm was a destructive device, namely
an explosive grenade.
Third: That the Defendant knew of the characteristics of
the firearm, namely that it was an explosive
grenade.
Fourth: That this firearm was in operating condition; and
Fifth: That this firearm was not registered to the
Defendant in the National Firearms Registration and
Transfer Record. It does not matter whether the
Defendant knew that the firearm had to be
registered.
54
COUNT EIGHT
Count Eight of the Indictment charges that from on or about February
28, 1993, and continuing thereafter until on or about April 19, 1993, in
the Western District of Texas, Defendant, Graeme Leonard Craddock, did
knowingly and willfully combine, conspire, confederate and agree with
other persons both known and unknown to the Grand Jury, to commit an
offense against the United States, namely, to unlawfully possess a firearm
as defined by Section 5845(a), Title 26, United States Code, to-wit: a
grenade, without having the said firearm registered to him in the National
Firearm Registration and Transfer Record. In furtherance of the said
conspiracy and to effect the objects thereof, the following overt act was
committed by the Defendant in the Western District of Texas:
1. On April 19, 1993, co-conspirator Vernon Howell, also
known as David Koresh, gave Graeme Leonard Craddock a
grenade;
contrary to Title 26, United States Code, Sections 5861(d) and in
violation of title 18, United States Code, Section 371.
55
ELEMENTS OF COUNT EIGHT
Title 18, United States Code, Section 371 makes it a crime for anyone
to conspire with someone else to commit an offense against the laws of the
United States. In this count of the Indictment, Defendant Craddock is
charged with conspiring to unlawfully possess a firearm without having the
firearm registered to him in the National Firearms Registration and
Transfer Record.
For you to find the Defendant guilty of this crime, you must be
convinced that the government has proved each of the following beyond a
reasonable doubt:
First: That two or more persons made an agreement to
commit the crime of unlawful possession of a
firearm as defined by Section 5845(a), Title 26,
United States Code, to-wit: a grenade, without
having the said firearm registered to him in the
National Firearms Registration and Transfer
Records, as charged in Count Seven of the
Indictment;
Second: That the Defendant knew the unlawful purpose of the
agreement and joined it willfully, that is, with
the intent to further the unlawful purpose; and
Third: That one of the conspirators during the existence
of the conspiracy knowingly committed the overt act
listed above in order to accomplish some object or
purpose of the conspiracy.
For a full explanation of the law of conspiracy, refer to pages _____
of these instructions.
56
COUNT NINE
Count Nine of the Indictment charges that on or about February 1992,
and continuing thereafter until on or about February 1993, in the Western
District of Texas, Defendant, Paul Gordon Fatta, did intentionally,
knowingly, and willfully combine, conspire, confederate and agree with
other persons both known and unknown to the Grand Jury to commit an
offense against the United States, namely, to unlawfully manufacture and
possess machineguns, without having the said firearm registered to him in
the National Firearm Registration and Transfer Record. In furtherance of
the said conspiracy and to effect the objects thereof, the following overt
act was committed by the Defendants in the Western District of Texas:
1. On March 21, 1992, Paul Gordon Fatta purchased a FEG,
Model SA85M rifle, 7.62 caliber, Serial No. SL02791;
2. On January 16, 1993, Paul Gordon Fatta purchased a H&K,
SP89, pistol, 9 mm, Serial No. 2122147;
contrary to Title 18, United States Code, Section 922(o) and in violation
of title 18, United States Code, Section 371.
57
ELEMENTS OF COUNT NINE
Title 18, United States Code, Section 371 makes it a crime for anyone
to conspire with someone else to commit an offense against the laws of the
United States. In this count of the Indictment, Defendant Fatta is
charged with conspiring to unlawfully possess machineguns in violation of
Title 18, United States Code, Section 922(o).
For you to find the Defendant guilty of this crime, you must be
convinced that the government has proved each of the following beyond a
reasonable doubt:
First: That two or more persons made an agreement to
commit the crime of unlawful possession of
machineguns;
Second: That the Defendant knew the unlawful purpose of the
agreement and joined it willfully, that is, with
the intent to further the unlawful purpose; and
Third: That one of the conspirators during the existence
of the conspiracy knowingly committed one or more
of the two overt acts listed above in order to
accomplish some object or purpose of the
conspiracy.
For a full explanation of the law of conspiracy, refer to pages _____
of these instructions.
58
For you to find the Defendant guilty of this crime, you must also be
convinced that the government has proved beyond a reasonable doubt an
agreement to commit the crime of unlawful possession of machineguns, in
violation of Title 18, United States Code, Section 922(o). The following
elements constitute the crime of unlawful possession of machineguns:
First: That the Defendant knowingly transferred or
possessed a machinegun without lawful authority on
or after May 19, 1986;
Second: That the Defendant knew of the characteristics of
the machinegun as defined below; and
Third: That the machinegun was in operating condition or
could readily be converted or assembled into
operating condition.
The term "machinegun," as defined in Title 26, United States Code,
Section 5845(b), means any weapon which shoots, is designed to shoot, or
can be readily restored to shoot, automatically more than one shot,
without manual reloading, by a single function of the trigger. The term
shall also include the frame or receiver of any such weapon, and part
designed and intended solely and exclusively, or combination of parts
designed and intended, for use in converting a weapon into a machinegun,
and any combination of parts from which a machinegun can be assembled if
such parts are in the possession or under the control of a person.
The term "transfer" and the various derivatives of that word, as
defined in Title 26, United States Code, Section 5845(j), includes
selling, assigning, pledging, leasing, loaning, giving away, or otherwise
disposing of.
The only lawful means of possessing a machinegun are set forth
59
in Title 18, United States Code, Section 922(o)(2). This provision states
that the general prohibition against the transfer or possession of
machineguns does not apply with respect any lawful transfer or lawful
possession of a machinegun that was lawfully possessed before May 19,
1986. A machinegun possessed in compliance with the law prior to May 19,
1986, may continue to be lawfully possessed by the person to whom the
machinegun is registered and may, upon compliance with the registration
laws, be lawfully transferred to and possessed by the transferree.
You are instructed that it is unlawful for a private individual to
manufacture or convert a semi-automatic weapon to an automatic weapon
after May 19, 1986. If the government has proved beyond a reasonable
doubt that the Defendant manufactured or converted a semi-automatic weapon
to an automatic weapon after May 19, 1986, such activities would
constitute "possession" as that term is used in this instruction.
60
COUNT TEN
Count Ten of the Indictment charges that beginning about February
1992 and continuing thereafter until about February 1993, in the Western
District of Texas, Defendant, Paul Gordon Fatta, intentionally and
knowingly did aid and abet Vernon Howell, also known as David Koresh, in
the unlawfully possession of machineguns, contrary to Title 18, United
States Code, Section 922(o) and in violation of title 18, United States
Code, Section 371.
61
ELEMENTS OF COUNT TEN
Title 18, United States Code, Section 922(o) makes it a crime to
unlawfully possess a machinegun. Title 18, United States Code, Section 2,
makes it a crime to aid and abet another person in that offense. For you
to find the Defendant guilty of aiding and abetting in this crime, you
must be convinced that the government has proved beyond a reasonable doubt
the following:
First: That Vernon Howell, also known as David Koresh,
knowingly transferred or possessed a machinegun
without lawful authority on or after May 19, 1986;
Second: That Vernon Howell, also known as David Koresh,
knew of the characteristics of the machinegun as
defined above; and
Third: That this machinegun was in operating condition or
could readily be converted or assembled into
operating condition.
For further explanation of this offense, including pertinent
definitions and the lawful justification for possessing a machinegun,
refer to pages _____ of these Instructions.
For you to find the Defendant guilty of aiding and abetting in this
crime, in violation of Title 18, United States Code, Section 2, you must
further be convinced that the government has proved beyond a resonable
doubt that the Defendant aided and abetted Vernon Howell in this offense
as defined on pages ____ of these Instructions.
62
The word "knowingly," as that term is used in these instruc- tions,
means that the act was done voluntarily and intentionally, not because of
mistake or accident.
The word "willfully," as that term has been used from time to time in
these instructions, means that the act was committed voluntarily and
purposely, with the specific intent to do something the law forbids; that
is to say, with bad purpose either to disobey or disregard the law.
"To possess" or "possession," as has been used from time to time in
these instructions, may be of two kinds: actual possession and
constructive possession. A person who knowingly has direct physical
control over a thing, at a given time, is then in actual possession of it.
A person who, although not in actual possession, knowingly has both the
power and the intention, at a given time, to exercise dominion or control
over a thing, either directly or through another person or persons, is
then in constructive possession of it. Possession may be sole or joint.
If one person alone has actual or constructive possession of a thing,
possession is sole. If two or more share actual or constructive
possession of a thing, possession is joint. You may find that the element
of possession, as that term is used in these instructions, is present if
you find beyond a reasonable doubt that the defendant had actual or
constructive possession, either alone or jointly with others.
63
You are further instructed that the Constitution of the United States
guarantees freedom of religion. A Defendant's religious beliefs,
thoughts, and manner of worship alone cannot be held against a Defendant.
On the other hand, a Defendant's religious beliefs, thoughts, and manner
of worship alone are not justification for an overt criminal act.
64
You will note that the indictment charges that the offenses were
committed on or before or on or about specified dates. The government
does not have to prove that the crimes were committed on the exact dates,
so long as the government proves beyond a reason- able doubt that the
Defendants committed the crimes on dates reasonably near the dates stated
in the indictment.
You are here to decide whether the government has proved beyond a
reasonable doubt that each Defendant is guilty of the crimes charged. No
Defendant is on trial for any act, conduct, or offense not alleged in the
indictment against that particular Defendant. Neither are you concerned
with the guilt of any other person or persons not on trial as a Defendant
in this case.
If any of the Defendants are found guilty, it will be my duty to
decide what the punishment will be. You should not be concerned with
punishment in any way. It should not enter your consideration or
discussion.
A separate crime is charged against one or more of the Defen- dants
in each count of the indictment. Each count, and the evi- dence
pertaining to it, should be considered separately. Also, the case of each
Defendant should be considered separately and individually. The fact that
you may find one or more of the accused guilty or not guilty of any of the
crimes charged should not control your verdict as to any other crime or
any other defen- dant. You must give separate consideration to the
evidence as to each defendant.
65
To reach a verdict, all of you must agree. Your verdict must be
unanimous. Your deliberations will be secret. You will never have to
explain your verdict to anyone.
It is your duty to consult with one another and to deliberate in an
effort to reach agreement if you can do so. Each of you must decide the
case for yourself, but only after an impartial con- sideration of the
evidence with your fellow jurors. During your deliberations, do not
hesitate to re-examine your own opinions and change your mind if convinced
that you were wrong. But do not give up your honest beliefs as to the
weight or effect of the evidence solely because of the opinion of your
fellow jurors, or for the mere purpose of returning a verdict.
Remember at all times, you are judges -- judges of the facts. Your
sole interest is to seek the truth from the evidence in the case, to
decide whether the government has proved the Defendants guilty beyond a
reasonable doubt.
Upon retiring to the jury room, the first thing that you should do is
select one of your number as your presiding juror, who will help to guide
your deliberations and will speak for you here in the courtroom.
A form of verdict has been prepared for your convenience.
The presiding juror will write the unanimous answers of the jury in
the spaces provided, either guilty or not guilty. At the conclusion of
your deliberations, the presiding juror should date and sign the verdict.
If you need to communicate with me during your deliberations,
66
[The following is commentary on the foregoing Davidian Jury Instructions. References to the text of the Instructions are made as Page/Paragraph/Line.]
3/1-3: Juries are also judges of the law. By telling them this, the judge is in violation of the principles of the jury system as laid down by the Framers of the Constitution, and may rightly be considered to be guilty of jury tampering.
Juries have the duty to judge whether the law is constitutional, and if so, whether it is correctly applied to the particular case. A law may be unconstitutional if it violates a constitutional right, if it is not based on or pursuant to a delegated power of government, or if it is so vague or subject to arbitrary administration as to create doubts as to its applicability on the part of both citizens and government authorities. It may be incorrectly applied if the situation of the accused is not that contemplated by the intent of the framers of the law, or if the case is not within the jurisdiction of the court.
There are several constitutional issued involved here:
(1) Whether the gun laws which the accused are charged with violating are constitutional. Clearly they are not.
(2) Whether the conduct of the raid was a reasonable search and arrest. Clearly it was not.
(3) Whether the federal courts have jurisdiction. The Constitution grants criminal jurisdiction to the federal government only for acts committed in federal territories or the high seas. The alleged acts in this case were not committed in either location, unless the federal government now asserts that all of the states are now included within "federal" territory, which clearly violates the intention of the Framers.
12/1: It is ironic that if the jury finds the 11 accused not guilty, the state will probably take their loss out on Kathryn Schroeder and she will wind up being the only one to actually be punished.
18: It is interesting that the government has tried to present evidence of the events following the raid of February 28, 1993, to include the entire standoff and the final assault. They only needed the events of February 28 if they had any case at all. The subsequent events just weaken their case.
Title 18, Sections 1114 and 1117, are only applicable to federal territories or the high seas, according to the Constitution.
20/1: Predicting a "war" does not indicate the intent to start one.
20/3 & 21: None of this is illegal except perhaps the conversions to full-auto. Otherwise it seems like just a regular gun dealership. Note that one does not have to have a federal firearms license to sell guns at the retail level, just to transfer them across state lines.
22/2: There is no real difference between "ambush" positions and "defense" postitions in a situation of this kind. Depends on who is expected to fire first.
23/3: Part of the conspiracy to fire upon tanks to drive them back? That the prosecutors could even formulate this statement is an indication of their lack of any perspective on the issues involved here.
23/4: Part of the conspiracy to commit mass suicide? Perhaps if there were federal agents in the compound that they hoped to take with them, but there weren't.
24/2: This might be an overt act in support of the count but it is not in violation of Title 18, USC, Sec. 1117, as stated in 25/2.
27/3/6-7: The judge must have been asleep when he wrote this. It would seem the government doesn't have to prove anything.
This whole law on conspiracy should be considered unconstitutionally vague.
32: The government seems to be claiming that the "Western District of Texas" is a federal territory.
38-40: The judge admits the accused had the right to defend themselves against the agents if they believed they were in danger. However, he only defines "self-defense", and there is also an issue of defense of others, such as one's family, children, and friends, which is also a valid defense.
Also, the instructions suggest that self-defense is only a defense against the charges of murder and conspiracy to murder. It is also a defense against the charges of manslaughter and the various weapons charges.
46/3/5-7: Words not provocative? How about "I'm going to kill you!"
51/1/5: Best evidence that his intentions were not offensive was the use of a mere Jennings .22. If he wanted to kill someone, he could have used someting more effective.
53/1/5: Except that such a "destructive device" is an "arm" of the kind citizens are constitutionally guaranteed the right to keep and bear.
53/1/6: Note that the charge is not that he failed to register the device, but that the registration is not "in" the Record, a situation that could occur by some bureaucrat erasing it, thereby making him an offender.
Also note that even if it is granted that the excise tax power allows the federal government to tax a manufacturing operation that does not involve an interstate transfer (which it does not), the power to charge an excise tax is not the power to prohibit the possession of the thing taxed, a power the federal government has not been granted by the Constitution.
57: As above for 53.
60/2: This is an error. The statute forbids the conversion of a semi- auto made after May 19, 1986, to full-auto, by other than a licensed manufacturer or a law-enforcement agency, but allows such conversion for a semi-auto made prior to that date by an individual if it is registered and the $200 tax paid.
64: It is interesting that the Constitution is invoked for the right of religious belief but not for the right to keep and bear arms.
65/4: Except that the manslaughter charges are "lesser included" charges to the murder charges, and do not have a conspiracy count. Also, it makes little sense to convict on conspiracy and acquit on the main offense.
66/3/1: Juries are also judges of the law. More jury tampering.
66/5: At least it is admitted that the verdict form is prepared for the jury's convenience, suggesting what is the case, that they can create their own form and report their verdict in any way they wish.
The judge omits the instruction that the jurors have the right to question witnesses, although that instruction was needed at the commencement of the trial rather than at the end of it.
Most of the minor errors of typography, capitalization, and punctua- tion are faithfully reproduced, indicating that the judge needs to use a tool like a spelling checker.
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Scott Ostrander: scotto@cica.indiana.edu