This is the text of a letter from special counsel's office to Michael Kennedy, attorney for former U.S. Attorney Bill Johnston in Waco:
Office of Special Counsel John C. Danforth
James B. Martin
Director of Investigative Operations
200 North Broadway
St. Louis, Missouri 63102
August 30, 2000
Mr. Michael Kennedy
425 Park Avenue, 26th Floor
New York City, NY 10022
Dear Mr. Kennedy,
This letter is a follow-up to our telephone call of August 29, 2000.
As you have been told, our office will indict Bill Johnston in both St. Louis, Missouri, and in Texas. The charges in St. Louis will be perjury charges for his grand jury appearances on May 10, 2000, and July 25, 2000, false staetment charges for his statements during interviews by this office and obstruction of this investigation under U.S.C. 1505. The charges in Texas will be obsruction of the Congressional investigation, 1505, and a false statement charge for his Sept. 17, 1999, certification that he had turned over all his Waco related records. We will indict first in St. Louis and we will space the indictments sufficiently to allow an orderly process of both trials.
On the other hand, we truly believe a resolution of this matter is in everyone's best interest. In that regard, we understand that Mr. Johnston believes that he has a legal argument that his confession made to the grand jury is suppressible. While we are not aware of the exact argument Mr. Johnston would make, we are very confident his confession is not suppressible. Nevertheless, we very much would like to hear from you about any legal argument which exists. Moreover, if we disagree with Mr. Johnston's version of events, we will be happy to show you where we believe his "facts" are incorrect.
In that regard, I point out to you that even if Mr. Johnston's confessions on July 25, 2000, were suppressible, (which we have no doubt is not true) two days later, accompanied by counsel, Mr.Johnston attended a meeting, which he requested, with Senator Danforth in which he gave a 25 minute speech about what he did and why he did it. This subsequent confession most certainly was an act of free will which would purge the alleged taint of the earlier confessions. We are still researching the issue for the strongest case law, but I promised a letter by the end of today so I would generally refer you to U.S. v. Patino, 862, F2d 128 (7th Cir. 1988). Relying on the principals announced in Wong Sun v United States, 371, U.S. 471 (1963) and Oregon V. Elstad, 470 U.S. 298 (1985), the court in Patino stated "an unlawfully obtained first confession does not forever preclude a confessor from making a useable confession under lawful circumstances.'' Under the case law we have reviewed to date, I am very confident the circumstances surrounding his admissions to Senator Danforth would make that confession admissible.
I hope to hear from you very shortly.
Very truly yours,
James G. Martin
Five supporters of former Waco federal prosecutor Bill Johnston filed a motion Wednesday seeking to block the special counsel's office from forcing them to testify before a federal grand jury investigating government actions in the 1993 Branch Davidian siege.
The five Waco residents, including two deputy U.S. Marshals, a former Waco city manager and a prominent businessman, alleged that the grand jury subpoenas issued last week were part of an ongoing effort by the special counsel to intimidate Mr. Johnston and harass his supporters.
"They're going to refuse to testify unless they're given immunity," said Dick DeGuerin of Houston, who filed the motion on behalf of the five subpoenaed men. "The first thing that I'm concerned about is that they'll threaten these guys with obstruction of justice because they're helping Bill and they're urging him to fight."
A spokesperson for the special counsel's office in St. Louis declined to comment on the matter Wednesday.
Mr. Johnston, who helped prosecute surviving Davidians after the 1993 Branch Davidian standoff near Waco, was told last summer that he was being targeted for prosecution by the office of Special Counsel John C. Danforth.
A lawyer for the former prosecutor has said that Mr. Danforth's investigators believe that he committed criminal violations by withholding personal notes that he wrote in 1993 detailing the FBI's use of pyrotechnic tear gas at the end of the Branch Davidian siege.
But the lawyer, Michael Kennedy of New York, said the special prosecutor's actions are a continuing effort to punish Mr. Johnston for turning whistleblower and embarrassing the Justice Department.
Mr. Kennedy, who also filed a motion Wednesday seeking to quash the subpoenas of Mr. Johnston's friends and supporters, said the special counsel's office now appears determined to try to pressure the former prosecutor to force him to accept a guilty plea to felony charges.
"They're trying to anticipate the defense and neutralize our witnesses. They're trying to neutralize witnesses I haven't even heard of," he said. "Bill is disturbed by the fact that people who have been supporters of his and allies of his and are potential witnesses on his behalf are being threatened and harassed and dragged all the way from Texas to Missouri. All of this is designed to coerce Bill to plead guilty to a crime that he didn't commit."
Mr. Kennedy noted that Judge Smith, one of Mr. Johnston's longtime supporters and friends, was subpoenaed to testify an hour after the special counsel's office was notified that Mr. Johnston would not accept a deal that would require him to plead guilty to a felony.
"There is no question that this new round of subpoenas is a further effort to punish Bill for refusing St. Jack's offer," he said. "They had tried every way in the world to avoid going to trial, including harassing these witnesses. They do not want to go to trial on this case."
Mr. DeGuerin, a high-profile criminal defense lawyer who represented Davidian leader David Koresh and tried to negotiate his surrender during the 1993 standoff, said he immediately agreed to represent five of Mr. Johnston's supporters after hearing about the subpoenaes.The five include deputy U.S. Marshals Mike and Parnell McNamara, former Waco city manager David Smith, businessman Carey Hobbs, and Waco lawyer Rod Goble.
"Some people would say, 'you're switching sides here, and getting on the side of people who persecuted or prosecuted the Davidians. I don't see it that way at all,'" Mr. DeGuerin said. "All of my career has been fighting bullies, starting with when I was the smallest kid in the class, and these people with the special counsel's office are nothing more than bullies abusing their power.
"The fact is, if you cross somebody in the Justice Department there's going to be hell to pay, and that's what's going on here," he said.
The McNamaras, brothers and longtime friends of Mr. Johnston, have been among his staunchest and most vocal supporters in Waco. Mr. Hobbs and Mr. Smith have helped organize a fundraising campaign that has raised about $30,000 for Mr. Johnston's legal defense, and Mr. Goble, a longtime friend, has given public comments ridiculing the special counsel's actions.
"All of these guys have been on the right side of the law," Mr. DeGuerin said. "The only thing that the McNamara brothers are guilty of is wearing big hats. In the case of Rod Goble, I think the special counsel is violating his First Amendment rights by retaliating against him for speaking out. I don't know what they think they're doing up there, but we're going to go up there and find out."
Justice Department and FBI officials denied for years that the government had used anything capable of sparking fires when they used tanks and tear gas to try to force the Branch Davidians to end a 51-day standoff. The tear gas assault ended with a massive fire that consumed the sect's compound on April 19, 1993. Mr. Koresh and more than 80 followers died.
Mr. Johnston was among five federal prosecutors who helped prosecute some sect survivors on charges arising from a shootout that began the siege. Four federal agents and six Davidians died in the gunfight on Feb. 28, 1993, as authorities tried to search the compound and arrest Mr. Koresh.
Judge Smith, who has presided over seven years of litigation arising from the incident, issued an order in August 1999 requiring that the surrender to his court of all government records and evidence connected with the standoff.
A few weeks later, Mr. Johnston complained publicly that the Justice Department was covering up evidence that showed FBI agents had fired some pyrotechnic tear gas rounds at the Davidian compound.
The charge and the FBI's later admission that it had used some pyrotechnic tear gas in Waco drew so much controversy that Attorney General Janet Reno asked former Missouri Sen. John C. Danforth to head an investigation of the Waco incident.
After Mr. Johnston left the U.S. Attorney's office, Mr. Danforth's investigators questioned him repeatedly and he admitted in July that he had withheld several pages of notes from 1993 dealing with the FBI's use of pyrotechnic gas.A congressional report issued last week praised Mr. Johnston for helping bring to light the use of pyrotechnics but condemned his failure to surrender notes showing that he was told in the fall of 1993 that FBI agents fired several "incend'' or incendiary militiary tear gas grenades in Waco.
Friends said Mr. Johnston did not recall writing the phrase and withheld the pages out of fear that hostile colleagues might try to use what he had written to discredit him.. Friends said Mr. Johnston told the special prosecutor in July that he had not turned the notes over sooner because he had been accused of wrongdoing from his earliest dealings with Mr. Danforth's office.
Special Counsel John Danforth has subpoenaed five more Waco residents to testify before a federal grand jury in St. Louis next week, less than a week after U.S. District Judge Walter S. Smith Jr. testified before the same panel.
The former Missouri senator, appointed last year to investigate allegations in the Branch Davidian case, has subpoenaed deputy U.S. marshals Mike McNamara and his brother, Parnell McNamara; Waco businessman Carey Hobbs; former Waco city manager David Smith; and Waco attorney Rod Goble to appear before the special grand jury on Thursday.
Jan Diltz, a spokeswoman for the Office of Special Counsel, declined comment on the new round of subpoenas or on Judge Smith's 21/2-hour appearance before the grand jury on Friday.
“I haven't the foggiest idea,” Hobbs said when asked why he was called before the grand jury. “I can't imagine. I asked the man, ‘Why me?’ and he said, ‘You know it has to do with the Bill Johnston case.’ ”
Attorneys for Johnston, the former assistant U.S. attorney who helped prosecute the Branch Davidian criminal case in 1994, have said that Danforth's investigators are targeting Johnston for possible indictment for perjury and obstruction of justice.
Like the judge, the five men subpoenaed all have close ties to Johnston.
Hobbs and David Smith have established a legal defense fund for Johnston that so far as raised about $30,000, Hobbs said.
"The defense fund is why I figured that Carey and I are being called," David Smith said. "But I don't know what I could tell them about Bill, except good stuff. All I know about what Bill is accused of is what I have read. But I have never discussed that with Bill. But I know Bill and I am 100 percent on his side and 100 percent loyal to him."
Smith was city manager in the early ’80s when Johnston served as police legaladviser. Later, Smith and others, including former Baylor President Abner McCall, lobbied for the establishment of a federal prosecutor's office in Waco to help fight the drug wars in McLennan County. Johnston was appointed head of the Waco U.S. attorney's office.
Goble also confirmed that he has been asked to appear before the grand jury on Thursday, but said he has “no clue what they want to ask me.”
"I had nothing to do with the Davidian case," Goble said. "Bill and I are friends and I am proud that he is my friend. I am in good company with the people who have been subpoenaed with me."
Both Mike McNamara and Parnell McNamara declined comment Monday, as did Johnston.
Baylor University law professor Bill Underwood and Waco attorney Vance Dunnam accompanied Judge Smith to St. Louis as his attorneys. Underwood said that Danforth withdrew his subpoena for the judge after Smith agreed to appear before the grand jury.
"The purpose of the judge's appearance was simply to allow the judge the opportunity to share with the grand jury information that he had already shared with Senator Danforth," Underwood said. "During the judge's appearance, he did just that.
"One thing I think that is important for people to understand is that frequently people appear before a grand jury strictly as a witness to furnish information to the grand jury. The fact that you appear before the grand jury certainly does not in any way suggest that you are the subject of a grand jury investigation. It certainly does not suggest that anyone suspects you of having done anything improper," he said.
The potential charges against Johnston, sources say, stem from his appearance in late July before Danforth's grand jury in St. Louis. Many of the questions directed toward Johnston concerned several pages that were missing from a legal pad that he kept during his pretrial preparations for the Branch Davidian criminal trial.
Johnston reportedly produced the pages for Danforth and then submitted to a polygraph examination, sources have said.
Notes by a paralegal indicated that Johnston attended a meeting before the 1994 trial in which the use of military-style pyrotechnic devices was discussed. Johnston has said he doesn't remember the meeting.
Judge Smith, who presided over the criminal trial and the Davidian wrongful-death suit against the government in June and July, ordered all matters pertaining to the Branch Davidian case to be turned over to his court last year.
The FBI for years denied that it used military gas, which has the potential to start fires, on the final day of the 51-day standoff with David Koresh and his followers.
The revelation that gas was used early in the tear-gas assault prompted Attorney General Janet Reno to appoint Danforth as special counsel to investigate that and other allegations arising out of the civil lawsuit.
Danforth has concluded that the Davidians started the fire and that the use of the military tear gas had nothing to do with it.
Johnston's attorneys have charged that he is being "unfairly targeted for his frequent criticism of the U.S. government and for blowing the whistle on the government's efforts to mislead the public about the government's use of pyrotechnic devices against the Branch Davidians."
Johnston, who resigned in January, wrote a letter to Reno last year warning of a possible Justice Department cover-up regarding the use of the incendiary devices on the final day of the siege.
WASHINGTON - The House Committee on Government Reform has found no evidence that government pyrotechnic devices contributed to the fire that engulfed the Branch Davidian compound on April 19, 1993, killing about 80 people.
In a 100-page report released Thursday, the committee also found no proof of gunfire by government forces in the siege of the Davidians' complex in Waco, Texas.
In those conclusions, the committee and its chairman, Rep. Dan Burton, R-Ind., largely agree with the assessments of special counsel John C. Danforth.
But in other ways, the committee's report is harsher on the administration than Danforth was, particularly in assessing whether Attorney General Janet Reno tried in good faith to investigate government actions during the siege.
Danforth, a former Republican senator from Missouri, found that Reno made diligent efforts to learn the truth. Burton's report says: "All of the actions taken by the Justice Department were consistent with an organization that was not eager to learn the full truth about what happened on April 19, 1993."
Burton called for the committee's investigation after Justice Department officials admitted that pyrotechnic devices had been used at Waco and after allegations surfaced accusing the military of violating federal law by actively participating in the siege.
Burton said the committee's investigation was needed because Reno and other officials at the Justice Department and FBI had long been "emphatic in their public statements . . . that the FBI did not use flammable tear gas at Waco."
In introducing the report, Burton said the government's actions following Waco "let suspicion and distrust brew for years."
In response, Justice Department spokesman Myron Marlin said: "We're pleased that the report acknowledges that we didn't start the fire, but we wish it reflected a more balanced and objective view."
Committee Democrats quickly pounced on the report. A spokesman for Rep. Tom Lantos, D-Calif., said Burton's report suffered by comparison to Danforth's.
"I think basically the Danforth report took a lot of the politics out of it, to have a respected Republican well regarded as a prosecutor, as an attorney, investigate Waco," said Lantos spokesman Bob King.
"The Danforth study makes the Burton report pretty much irrelevant," King added. "I think something with Dan Burton's name on the cover is not going to have a lot of credibility."
The Committee on Government Reform is known for sharp partisan divisions. Minority members often accuse Burton, a forceful critic of President Bill Clinton, of political motives. Burton, for his part, has accused the administration of a number of ethical and moral lapses and says such investigations are necessary.
The Senate is still looking into the Waco siege. Its investigation is under the leadership of Sen. Arlen Spector, R-Pa. Senate sources say that Spector has largely accepted Danforth's findings and does not expect to issue a major report.
Testifying in July before Spector's panel, Danforth said that the Branch Davidians were intent on suicide and murder and were responsible for the inferno that claimed their lives.
While finding no evidence of government gunfire, the House committee's report was less unequivocal than Danforth's in asserting that there was none.
The committee found no evidence that the military violated the Posse Comitatus Act at Waco. The act bars military involvement in most domestic police actions. But the report said civilians in charge asked Army officers to evaluate the FBI's proposed operations plan five days before the compound went up in flames. Army officers refused to take such a course, which would have "made them direct participants in planning the arrest of the Branch Davidians and would therefore have violated the Posse Comitatus Act," the committee said.
The committee also criticized Reno and Clinton for allegedly mischaracterizing what two senior Army officers told Reno in a meeting on April 14, 1993, and charged that Reno and Clinton therefore "have deceived the American people for the last seven years by indicating that the military endorsed or otherwise approved the details of the FBI's proposed operations plan."
In describing the internal investigation by the Justice Department, the committee used terms such as "negligent" and "improperly rushed to its conclusion solely for political purposes."
The committee also criticized the Department of Defense for not conducting its own internal review of Waco.
Burton's panel recommended that independent investigations be done "in the case of future tragedies of the scale and importance of Waco."
Rep. Henry Waxman, D-Calif., ranking Democrat on the committee, posted a draft of the minority response on his Web site. It contends that because Burton had previously accused the administration of covering up key facts and called for Reno's removal from office, he has no objectivity on the matter.
The draft response addresses point-by-point to the report's contentions, and adds: "Mr. Burton, in a pattern that has become typical of this committee, first alleged wrongdoing by a Clinton administration official and then proceeded to investigate."
Waco, FBI and the Branch Davidians: Updates
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