While the Treasury Department reports says ATF agents had probable cause to serve arrest and search warrants on cult leader Vernon Howell for illegal weapons, attorneys question whether the warrants were executed properly.
The recently released Treasury report said Howell, also known as David Koresh, had all the parts necessary to assemble a machine gun. It also said that Bureau of Alcohol, Tobacco and Firearms investigator Davy Aguilera determined that neither Koresh nor any cult followers he knew of were licensed federal arms dealers, manufacturers or had weapons registered under the National Firearms Act.
“The evidence that ATF presented in support of the warrant applications . . . plainly showed there was probable cause . . . that numerous federal criminal violations were being committed by Koresh and his followers,” the report said.
Probable cause means that authorities have knowledge of facts and circumstances sufficient to make a reasonably cautious person believe that an offense has been or is being committed.
But Houston attorney Mike DeGuerin, who is defending Paul Fatta on charges of conspiracy to murder federal agents and to illegally manufacture and possess machine guns, said there are several questions surrounding the warrants.
The trial of 11 Branch Davidians charged with conspiracy to murder federal agents has been moved to San Antonio with jury selection to begin Jan. 10.
“A question that is begged by the situation is, did they execute the warrant in a reasonable manner?” DeGuerin said. “Part of the answer to that question was, what was the motive of the ATF when they got the warrant and executed it the way they did?”
DeGuerin also questions whether ATF agents misled the federal magistrate through omission or misinformation when seeking a warrant.
“One assumes that the information given to the magistrate is correct information. There are serious questions about whether the magistrate was given correct information in the beginning.
Another issue is whether the ATF executed the warrant in a way that was likely to provoke a person to respond in self-defense, thinking his or her life was in danger, DeGuerin said.
Nowhere in the warrant does the magistrate say you can take 100 armed men and storm the compound, DeGuerin said, adding that the Fourth Amendment guards against unreasonable searches.
Jack Zimmermann, who represented Steve Schneider before he died during the April 19 fire, said the way the warrants were carried out is a central issue.
“Even the Treasury Department faults them on the method they chose,” he said of what he calls the military-style “attack” on Mount Carmel that left four agents dead Feb. 28.
The significance of the way ATF executed the warrant is much greater than the question of probable cause, Zimmermann said, because it relates to the response of people inside.
If the government did something wrong when serving the warrant, then it could explain why the Davidians responded the way they did, he said.
The ‘staleness’ issue
Zimmermann said defense attorneys could also argue the “staleness” issue, meaning the age of the information used to get a warrant, and the reliability of sources the government used to get the warrant.
In the end, Zimmermann does not think probable cause will be a big issue. “I don’t know if probable cause will be protested or not,” he said.
Aguilera learned that Howell received several M-16 machine gun CAR kits and M-16 machine gun #-2 kits, commonly known as conversion kits, the report said. The only component missing to make a machine gun was the lower receiver of the AR-15 semiautomatic rifle.
Aguilera also learned that Henry McMahon in Hewitt sold more than 65 AR-15 lower receivers to Howell, the report said. A receiver is the part of a firearm that normally houses one barrel and bolt assembly.
Charles Fagg, a gun engineer who helped analyze the information for the Treasury report, said in a phone interview Wednesday that Howell had all the components, including the automatic sear, needed to make automatic weapons. The sear is a part of a gun that holds the hammer in cocked or half-cocked position.
The report said that Aguilera’s greatest concern was Howell’s apparent propensity toward violence and intimidation, citing that Howell reportedly told Children’s Protective Services case supervisor Joyce Sparks that when his time came, the Los Angeles riots would pale in comparison.