Date: Thu, 8 Aug 1996 17:48:04 -0400 (EDT) From: Carol Moore <[c--oo--e] at [CapAccess.org]> Subject: RE: WACO UPDATE - 8/8/96 (fwd) FROM: Carol Moore in D.C. [c--oo--e] at [capaccess.org] or [c--oo--e] at [upx.net] Member, Committee for Waco Justice WACO UPDATE - AUGUST 8, 1996 **DAVIDIAN APPEALS MORE HOPEFUL THAN REPORTED IN NEWS While speaking with one of the Davidian appeals attorneys who had read the Fifth Circuit Court of Appeals 90 page ruling on the appeals of six Branch Davidians, I discovered there were some hopeful rulings and options which Associated Press and Reuters reporters failed to report. News reports were accurate that the convictions of six Davidians were affirmed. Renos Avraam, Brad Branch, Jaime Castillo and Kevin Whitecliff received 40 years each for aiding and abetting voluntary manslaughter and carrying a weapon in commission of the crime of conspiracy to murder federal agents--a crime of which the jury found them innocent. Found guilty on illegal weapons charges, Graeme Craddock received a 20 year sentence and Paul Fatta 15 years. However, news reports failed to mention that there was some good news. First, the judges ruled that *if* another appeals court currently considering whether the federal government has the right to regulate/ban automatic weapons rules it cannot, Fatta's conviction can be set aside and he can be released. (Of course, no evidence was presented at trial that Fatta knew that the two weapons he had bought allegedly were converted to automatics, but the judges did not let that lack of evidence sway their decision.) Even more promisingly, four Davidians could have 25 years cut off their sentences because appeals judges found that the additional 25 year sentences Judge Walter J. Smith gave them for allegedly using an *illegal* weapon were invalid under the recent Supreme Court decision in the Bailey case. That case held that prosecutors have to prove that the individual knew he/she had an illegal weapon. (The judges *upheld* the confused jury's finding that the Davidians used a weapon during the crime of conspiracy to kill federal agents--even though they found them innocent of conspiracy.) Unfortunately, the appeals judges sent this decision on sentencing back to the notoriously anti-Davidian Judge Smith. He will have to decide if there is evidence in the trial record that any Davidian had, and knew he had, illegal weapons on February 28,1993 during the BATF attack on the Branch Davidians during which four federal agents and six Davidians died. If he cannot provide such evidence, he can sentence them to only 5 years in prison for carrying a weapon. (They each received the maximum 10 years for aiding and abetting voluntary manslaughter.) However, before this decision is sent back to Judge Smith, the attorneys will be filing a joint brief with all 15 appeals judges asking that they *all* review and decide the Davidian appeals. Attorneys are basing this on several factors: the strong dissent by Judge Schwartzer, who said the weapons charge should be thrown out because of insufficient evidence of conspiracy and that the Davidians should be retried on the aiding and abetting manslaughter charge because their was ample evidence they acted in self-defense (even though Judge Smith would not allow the jury to consider such a defense); the fact that this is such a politically and legally significant case; and the fact that other circuit courts have found that *only* the jury can decide if defendants had illegal weapons while the Fifth Circuit has now ruled the judge can make that decision. When there is a conflict between different circuit court rulings, such cases usually go to the Supreme Court. While circuit courts reject most such briefs, there is still an outside chance all the appeals judges will hear the case. If the appeals judges reject the case, the Davidian attorneys will be filing briefs with Judge Smith asserting that there is no credible evidence the defendants had or knew they had illegal weapons on February 28, 1993, when the four BATF agents died. The only such "evidence" is BATF agents allegations they heard automatic gunfire coming from the building, the FBI's allegations that 48 weapons found after the fire were illegally converted to automatic (there has never been an independent verification of this), a jail house snitch's dubious accusation a Davidian confessed he used such a weapon on February 28, and Davidian Kathryn Schroeder's trial testimony some Davidians had automatic weapons after February 28. If Judge Smith tries to argue there is sufficient evidence to justify the additional 25 year sentences, Davidian attorneys also can appeal that decision to the Fifth Circuit Court of Appeals. Overall, there remains the faint hope that the whole Fifth Circuit will hear the case and give some of the Davidians new trials and the somewhat better chance that the 25 year sentences will be dropped. Unfortunately, the decision is a great boon to Judge Smith, who has been busy deciding whether he would recuse (remove) himself from judging the 3 billion dollar Davidian civil suits against federal officials and agents, as the civil suit attorneys demanded he do in briefs filed six weeks ago. Because the appeals judges have upheld his decisions in the Davidian trial--only finding a minor error in sentencing--he probably feels confidant to take on the civil suits. Civil suit attorneys assume he will do what he did with the first such civil suit--throw the cases out entirely. **LETTER FROM PRISONER LIVINGSTONE FAGAN Davidian prisoner Livingstone Fagan, also sentenced to 40 years for aiding and abetting voluntary manslaughter and weapons charges, refused to appeal his conviction and sentence in the belief that God, not "man," would set him free. He also has been non-cooperating with prison authorities by refusing to work during the two years he has been in federal custody. He has been in solitary confinement that whole time, allowed out of his cell only an hour a day (until his most recent incarceration) and allowed only sporadic phone privileges. Six weeks ago he was moved to one of the oldest, most decrepit prison in the federal systems, that at Leavenworth, Kansas. Here is how he describes his experience from a recent letter to me: (First he complains that they have not allowed him his two allotted phone calls during his time there and that it took him two weeks to get any stamps.) "The physical conditions are equally as bad. The solitary unit is a noticeably old building. My floor holds 300 captives. At this time of the year Kansas is quite hot. There is no air conditioning. The windows are kept permanently open. A series of makeshift fans have been installed. They are on 24 hours a day. The combined noise from them is deafening. You have to wear earplugs (not supplied) and raise your voice to communicate. Sleeping is a chore. Further, I'm held in a 4x10 cell designed for one but because of overcrowding houses two. Imagine being locked up 24 hours a day under such conditions. What is worse, people are being locked in solitary at the will of the administration for the most trivial of things. There seems to be the prevailing attitude among the staff of reminding captives of who's the Boss! It is both tedious and demoralizing. So much for rehabilitation! Nevertheless, the captives held under these conditions have shown remarkable patience. I witnessed one situation where the floor was flooded. While being taking to recreation, both hands handcuffed, a captive slipped and fell on his face and broke his tooth. I myself did object to having someone placed in my cell in the light of the conditions mentioned above. I stood with my arms on the bars. The guard threatened to break them if I did not remove them. Believe me this is no vacation! Still, God sits on a Throne! We're approaching the end of our prophetic journey. Please convey my fondest regards to those who have shown us compassion in our bonds. They are the salt of the earth and heirs of the Kingdom of God. (Matthew 25:31-46)" End Fagan Letter Needless to say, this is the fate that awaits many who discuss armed resistance to the ever increasing power of the state. If the Davidians, who were attacked by a huge, unnecessary force of federal agents who shot first, and from helicopters, can be locked up for 40 years for defending themselves, federal agents will continue to feel justified in such attacks. Just because they are currently on a short leash, as proved by the Freemen situation, does not mean they will remain so--especially in cases where individuals and groups are accused of killing federal agents. As we have seen, several groups of militia activists have already been caught up in "conspiracy" charges--i.e., they talked about the possibility that they would have to use violent resistance in the future, and engaged in legal weapons-related activity, while hanging out with government agents (provocateurs?). Now they being proseucted for planning it for the near term! Even as an advocate of non-violent action, I worry about making the wrong joke or speaking a little too indistinctly or ambiguously into the wrong government tap. I'm just wondering how long it will be before they start locking up on conspiracy charges those who advocate "war tax resistance" (which so far has *not* led to many prosecutions, as opposed to constitutionalist tax resistance) or for organizing things like non-violently blocking traffic and sitting in at government facilities. Even as a pro-choicer, I'm bothered by the RICO laws being used against Operation Rescue. Nevertheless, non-violent action remains the best option because even advocacy of violent action after some big government crackdown scares the heck out of the general public, making them think that such a crackdown is necessary!! Fear, not reason, remains the biggest political motivator. **SHORT HOUSE WACO REPORT NOW AVAILABLE The short 110 page House Report on the Waco Investigation (House report 749) has just become available free from House Documents, 3rd & D Street SW, Ford Building, Room B-18, Washington, D.C. 20515. You can order by phone from 202/225-3456. (Unfortunately, I don't know if this report can be found on any congressional web pages.) I have not received or read the report myself as of yet. The full report, complete with transcripts and documents submitted to the Committee for the record, will not be available for several weeks. **DAVID KORESH MUSIC AVAILABLE ON TAPE Davidian survivor Clive Doyle and David Koresh's mother Bonnie Haldeman have put together a compilation of David Koresh's music called "Songs for Grandpa." It is $10. Write them also to donate money for the memorial, the survivors and the prisoners or to ask for their price list of books and audio and video tapes by and about Koresh, the Davidians and federal crimes against them. Mount Carmel Survivors Memorial Fund, Box 120, Axtell, TX 76624. (Including videos "Day 51" and of Davidians speaking from inside Mount Carmel during the siege.) **DAVIDIANS ON WEB PAGES While you can find lots of information search the Web, two sites of particular interest are: Mark Swett's THE RESEARCH CENTER which contains writing by David Koresh and Davidian prisoner Livingstone Fagan. http://www.ime.net/~mswett Davidian prisoner Renos Avraam has his own web page in which he provides his book HIDDEN MANNA written in prison. The book is controversial among Davidians, some who find merit in his interpretations and those who dispute them. http://www.sevenseals.com **BATF AGENT COMMITS SUICIDE OVER WACO INVOLVEMENT ATF Special Agent Nathaniel Medrano committed suicide with a gun in the ATF's Los Angeles office. Mr. Merdrano wanted to sue the Treasury Department (of which the ATF is a subset) for defamation of his character due to what he said was unfair blame placed on him regarding his involvement in the 1993 Waco assault. He was informed by his lawyer that he could not sue the government for defamation of an agent. ( W. Times 7/26/96, A6 ) Medrano was the agent who posed as a UPS trainee about a month before the BATF raid. Medrano made the UPS agent drive up to Mount Carmel's front door instead of to the usual drop off point and then got out of the truck and asked to use the bathroom. The Treasury Report critized Medrano because his actions were so obvious that Koresh called up the Sheriff's office and complained about surveillance. The Treasury report inferred that this was just one more reason the Davidians were prepared for the raid. **WACO AND FBI/WHITE HOUSE INCEST Congressional leaders like William Clinger and Robert Livingstone have been leading inquiries into and expressing outrage over the FBI's incestuous relationship with the Clinton White House. FBI gave White House underlings of dubious repute 900 confidential files, mostly of Republicans who no longer worked at the White House. FBI General Counsel Howard Shapiro leaked two pieces of sensitive information to the White House: an under-FBI-review copy of former FBI agent Gary Aldrich's book "Unlimited Access" which contains juicy stories of his days stationed in the Clinton White House; and the fact that Representative Clinger was about to review FBI agent Dennis Sculimbrene's 1993 notes revealing that Bernard Nussbaum told him Hillary Clinton wanted the sleazy dirty trickster Craig Livingstone hired as head of White House security. Shapiro did not even bother to inform the Independent Counsel Kenneth Starr about this--but he did send two agents to Sculimbrene's house to question him about his notes. Representative Livingstone has demanded Shapiro resign over this serious leak of information in an ongoing investigation. (It seems to me he also demanded FBI Director Louis Freeh resign, but I can't find that article at the moment.) Why are the FBI and the White House so cosy? Is it only because of Bill Clinton and Louis Freeh's close friendship? Or could it be because both the FBI and the White House have developed such an emotional commitment to covering up each other's participation in the massacre of 82 civilians outside of Waco, Texas in 1993? Unfortunately, the U.S. Congress is also covering up for BATF and the FBI, as I have frequently reported herein. Nevertheless, the Committee will be writing a letter to Clinger, Livingstone and selected other representatives (and enclosing a copy of my book THE DAVIDIAN MASSACRE, as well as other attachments) and demanding they recognize and investigate more fully aspects of unintentional and intentional homicide at Waco that Congress has ignored or denied. This massacre and its coverup are continuing to undermine what little democracy and liberty we have left in America. **JUSTICE DEPARTMENT EXONERATES DAVIDIAN PROSECUTORS In July of 1994 the Committee for Waco Justice filed a complaint with the Justice Department's Office of Professional Responsibility, followed by several amended complaints, alleging prosecutorial misconduct by Davidian prosecutors Ray Jahn, Bill Johnston and John Phinizy. Our complaints included information first revealed during the July, 1995 House hearings that the Justice Department and Jahn had stopped interviews of BATF agents because they were fearful of producing "exculpatory material" that might prove Davidians acted in self-defense or were otherwise innocent of crimes and lead to acquittals of Davidians at trial. The Justice Department "forgot" to send us the results of their inquiry, but did so after I called them in May. On June 14, 1995 Joan L. Goldfrank, Assistant counsel, wrote us: "Based on the results of our inquiry, we have determined that the allegations are unsubstantiated. Accordingly, we consider this matter closed." We'll be sending that letter along with our letters to Clinger, Livingstone and other representatives. **ABOUT THE COMMITTEE FOR WACO JUSTICE Note: New Buttons Available The Committee for Waco Justice is a small group of mostly libertarians which has been active in the Washington, D.C. area since late 1993. We have been getting word out to the public, press and Congress about BATF and the FBI'S crimes against the Branch Davidians. Members have demonstrated on the anniversaries of the BATF and FBI assaults and of the sentencing of Davidian prisoners at the Washington headquarters of the agencies, and at the White House and the Justice Department. In 1994, 1995, and 1996 we erected 82 crosses on the Ellipse south of the White House before--Associated Press carried pictures nationally all three times! And on all three anniversaries of the April 19, 1993 fire that killed most of the group's members we have held press conferences and demonstrated at the FBI building. We are considering doing a demonstration on FIJA Day in September to dramatize the fact that a fully informed jury would have freed the Branch Davidians! Committee members have demonstrated at Congress and provided ample documentation to their researchers in order to lobby for Congressional hearings. Members sat through all ten days of House and the two days of Senate hearings. The Committee will keep active because those hearings did *not* result in the complete exposure of the crimes of federal agents--particularly the facts BATF firing from helicopters killed four Davidians, BATF shot first at the front door, the FBI purposely sabotaged negotiations, or that FBI wanted to destroy the building so they could destroy evidence of illegal BATF gunfire. To learn more about the Committee for Waco Justice or get on our e-mail list for 2-5 monthly updates e-mail [c--oo--e] at [capacess.org.] Also, we greatly and totally appreciate contributions to help us continue our efforts to spread the word, seek justice and free the Davidian prisoners. We owe two members several hundred dollars and prefer not to go further into debt to them. Note our new button selection! ____ $2.00 Information packages ____ $2.00 Each. 2 1/4 inch Buttons. FREE THE BRANCH DAVIDIANS, FBI ATF = GESTAPO, PROSECUTE JANET RENO, WACO NEVER AGAIN ("a"s can be replaced with Stars of David if you wish), DAVID KORESH -- Innocent til Proven Guilty, FREEDOM ISN'T FREEH! Abolish FBI. (Three or more buttons $1.50 each.) ____$______ CONTRIBUTION TO THE CAUSE $_______ TOTAL Since we still are too small and under funded to open a bank account, MAKE CHECKS TO: CAROL MOORE Box 65518 Washington, D.C. 20035. 202/635-3739 202/797-9877. END