Waco Jury Instruction

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.



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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.

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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.

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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.

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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.

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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

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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

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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

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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.

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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

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conspirators as they endeavored to serve arrest and search

warrants.

All in violation of Title 18, United States Code, Section

1117.

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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.

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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

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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

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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,

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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

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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.

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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.

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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.

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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.

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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.

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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

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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?

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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).

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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.

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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.

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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.

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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).

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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,

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