===========================================================
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
----
[Last page not available] Share this page:
Follow Dave on Twitter. Kopel's Law & Liberty News. Twice-daily web newspaper collecting articles from Kopel and those whom he follows on Twitter. Author page on Amazon. Search Kopel website:
Make a donation to support Dave Kopel's work in defense of constitutional
rights and public safety.
Nothing written here is to be construed as
necessarily representing the views of the Independence Institute or as an
attempt to influence any election or legislative action. Please send
comments to Independence Institute, 727 East 16th Ave., Colorado 80203. Phone 303-279-6536. (email) webmngr @ i2i.org
Copyright © 2018
Click
the icon to get RSS/XML updates of this website, and of Dave's articles.
