WACO - Federal court-hired experts believe that flashes on an infrared videotape made at the end of the Branch Davidian siege were not from gunfire, a federal judge told both sides in a wrongful death lawsuit Monday.
U.S. District Judge Walter Smith cautioned that the oral report he received last week from Vector Data Systems of Great Britain is not the final word on the gunfire issue.
But government lawyers in Waco and FBI officials in Washington said the report supported their long-held position that government agents didn't fire a shot on the last day of the 1993 standoff near Waco.
"Word from the court that independent analysis confirmed that the flashes are not gunfire is welcome news. Years of being accused of shooting at the compound placed a heavy burden on the FBI people that were there that day," said John Collingwood, the FBI's chief spokesman.
"Hopefully this is the beginning of lifting that burden. . . . We are grateful to the court for this announcement today," Mr. Collingwood said.
The lead lawyer representing plaintiffs in the wrongful death lawsuit arising from the 1993 incident said the announcement was "a disappointment" but neither silenced the gunfire question nor hindered their overall case.
"You get good news. You get bad news," said Michael Caddell of Houston. "It's still one of only five issues in our case, and the gunfire issue is still going to trial."
The judge also issued an order Monday denying a bid by government lawyers to dismiss almost every other issue in the wrongful death case. The three-page order, setting the final size and scope of a trial set to begin in mid-June, also reinstated all but a few plaintiffs who had been dismissed from the lawsuit last year.
Request rejected
But the judge's order rejected the plaintiffs' request to reinstate as defendants the two FBI agents who led the federal government's efforts during the siege - former Agent Jeffrey Jamar and former hostage rescue team commander Richard Rodgers.
That decision precludes the sect's bid to have its case heard by a jury. Federal law requires a bench trial for the sole remaining defendant - the U.S. government.
The sect's lawsuit alleges that government gunfire during an FBI tank and tear gas assault on April 19, 1993, kept Branch Davidians from fleeing when their besieged home caught fire. Sect leader David Koresh and more than 80 followers died. Government officials have maintained that Branch Davidians alone caused the fire and the massive loss of life.
But the lawsuit filed by surviving sect members and families of those who died alleges that the government acted negligently in failing to bring in adequate firefighting equipment before the assault.
It also charges that FBI tanks contributed to the start and rapid spread of the fire by sending tanks in prematurely to begin dismantling the building.
Much of the daylong hearing Monday involved plaintiffs' charges that the government has misplaced, mishandled or altered key evidence from the 1993 siege. The experts' report on the gunfire question began the day. Vector supervised a field test at Fort Hood, Texas, last month to determine the source of repeated flashes on infrared videotape recorded from an FBI airplane on April 19.
The forward-looking-infrared camera that recorded the video creates images by recording minute differences in temperatures between objects.
A preliminary report issued to the court this month indicated that the camera used in the field test had detected muzzle blasts from seven types of weapons, ranging from assault rifles to shotguns to M-60 machine guns to automatic grenade launchers.
But Judge Smith said he was told last Monday by Vector's chief analyst, Nick Evans, that none of the 57 "thermal events" that the firm identified on the April 19 video came from government or Branch Davidian gunfire.
Instead, Judge Smith said, the experts concluded that 43 of those flashes came from sunlight reflecting off ground debris, nine from human activity on the ground, and five from falling debris.
Extensive study
Judge Smith said the firm's final report, due May 8, will detail how each of those findings is "backed by corroborating evidence." In at least one instance, Judge Smith said, the firm tracked one "glint" previously alleged to be from Branch Davidian gunfire to broken window glass knocked onto a roof of the compound in a botched federal raid that began the 51-day standoff.
"That's the extent to which they're trying or have tried to identify what appears on that 1993 tape," the judge said.
Vector also reported that the first person visible on the April 19 video was a Branch Davidian who emerged on a rooftop as the compound burned. In its Fort Hood test infrared video, gunmen were always visible.
Government officials have said the lack of any visible people before that shows that none of the flashes on the April 19 tape could have been caused by gunfire. The judge cautioned, however, that he will not consider Vector's analysis "conclusive evidence." "That is evidence from an expert," he told lawyers for both sides. "The expert's opinion may be controverted, and you have the right to do that."
Private test
One lawyer representing families of Branch Davidians said he and other government critics are trying to raise funds to mount their own, private field test to do just that.
James Brannon of Houston said he was skeptical about the British experts even before Judge Smith announced their conclusions because they are owned by an American-based defense firm contracting extensively with the U.S. government.
Company officials have said their British subsidiary works primarily for the British defense ministry and has had no prior direct contracts with the U.S. government.
"They are not impartial," Mr. Brannon told reporters during a break in Monday's hearing. "Other experts, probably better qualified, not connected with the lawyers and this lawsuit, have looked at this tape and concluded the exact opposite." Mr. Caddell told reporters that he has already complained in writing about technical flaws in Vector's March 19 test, including a failure to meet minimum temperatures and maximum distances from the objects being filmed.
"There are some flaws," he said. "I don't know whether any of those will make a difference. . . . We're going to have to study all of this before reaching any conclusions."
One FBI official in Washington who requested anonymity said bureau leaders and street agents alike recognize that the gunfire allegation will continue to be raised in the federal court in Waco and in the larger court of public opinion.
"Some people will always believe to the contrary. The issue is still in the lawsuit," the official said, adding that news of Monday's report spread quickly to FBI agents around the country. "But this is the first clearly, unquestionably independent corroboration of what the agents have been saying for seven years."
Lawyers for the plaintiffs fanned outstanding doubts about the FBI's actions against the Branch Davidians in their daylong sanctions hearing.
Mr. Caddell accused the government of "a pattern of gamesmanship" in its failure to meet court deadlines for turning over requested documents and refusal to respond to some repeated requests for information.
Noting that the nine lawyers for the government went to Monday's hearing, he said, "I think somebody could be delegated to respond."
Marie Hagen, one of the government's lead lawyers in the case, told Judge Smith that she and other Justice Department attorneys had tried to fully comply with court orders and plaintiffs' request.
In one instance, she told Judge Smith, handwritten notes from former FBI Director William Sessions that were not turned over until he was deposed late last month "were overlooked" even though they had been in the FBI's files.
Mr. Caddell also called both an FBI pilot and his own recording expert to try to show that the infrared video recorded in the hour just before the compound fire had been tampered with.
Mr. Caddell has argued that audio recordings on that videotape could prove crucial because it was made in the last 90 minutes before the compound burned. In that period, FBI tanks demolished a large area of the rear of the compound and drove deep into the front of the building.
The pilot testified Monday that he had thought that videotape included an audio track recording cockpit conversations and ground radio traffic being monitored by the FBI's Nightstalker infrared aircraft.
He acknowledged that he called the FBI special counsel's office last fall to suggest that the audio track might have been inadvertently erased when the videotapes were copied by the FBI laboratory.
An FBI infrared camera operator who happened to be in that office that day took the call and wrote a note to the bureau's lawyers that the pilot had "said the original [tapes] had had audio on them, but when copies were made . . . the audio portion was removed."
The pilot, whose name was kept confidential by lawyers on both sides to protect his privacy, testified Monday, however, that he did not know for sure what had happened. He said he didn't even know for a fact whether the original recordings included audio and was only suggesting one possible explanation for why no sound was recorded.
Mr. Caddell's recording expert testified later that he had found "probable evidence" that the audio track on that infrared video recording was deliberately removed.
A government expert, former FBI agent Bruce Koenig, disputed that. He said his study of both the infrared videos and key audio tapes recorded from FBI bugs inside the compound showed that every recording being challenged by the plaintiffs were originals.
WASHINGTON - Attorneys for five Branch Davidians serving lengthy prison terms for manslaughter and weapons convictions predicted Monday that the U.S. Supreme Court will order drastic reductions in their clients' sentences.
The Supreme Court heard about one hour of oral arguments Monday morning from a Justice Department attorney and a lawyer for the imprisoned sect members.
At issue is whether the government must allege to a jury that the type of firearm used in a violent crime is an element of the offense, or if the type of gun is a sentencing factor to be determined by a judge.
All of the justices, with the exception of Clarence Thomas, vigorously questioned attorneys on both sides, challenging their positions and asking how many cases nationwide might be affected if they sided with the Branch Davidians.
Eleven sect members were tried in 1994 on various charges, including conspiracy to murder federal agents, stemming from a gunbattle at the Branch Davidian compound 10 miles east of Waco. That battle took place Feb. 28, 1993, weeks before the final federal raid on the compound in which 76 sect members died in a fire.
Four members were acquitted of all charges stemming from the gunbattle. Five others were convicted on the lesser manslaughter charge, and also were convicted of carrying or using a firearm during a crime of violence.
Davidian attorneys believed the firearm charge carried a mandatory consecutive five-year prison term. However, at sentencing, U.S. District Judge Walter S. Smith Jr. of Waco found that the Davidians had used machine guns or "enhanced weapons" against federal agents, and increased their prison sentences from five to 30 years on the weapons charge.
The question of what kind of weapons the Davidians used was not presented to the jury.
Assistant Attorney General James K. Robinson argued Monday that the type of weapons is a matter for the judge to decide at sentencing.
But several justices questioned that notion with Chief Justice William Rehnquist likening it to the "tail wagging the dog." Later, Justice Antonin Scalia, using Rehquist's analogy, noted the 25-year difference in sentences and said, "That's a very long tail."
Perhaps the sharpest questioning of Robinson came from Justice Stephen Breyer, who indicated that there are vast differences between carrying a pistol and using a machine gun or a bomb.
"It is hard to see this as a sentencing issue," Breyer said. "It seems Congress probably intended for juries to consider these issues."
Robinson responded to the questions by saying circuit courts are split on the issue, the congressional intent of the law is ambiguous, and the government is convinced that the types of weapons used in violent offenses is a matter best determined by a judge and reserved for sentencing.
After the court session, Houston attorney Steven (Rocket) Rosen said that "I claim total victory" for his Davidian client.
"I think the justices by their questioning and their animation and their logic sense that the sentences should be five years," Rosen said. "They seemed to indicate that it is unjust to say that you have a sentence for five years for firearms and then move to machine guns and have up to a 30-year sentence and not have a jury decide that issue. I think that was clear by their questioning. We are going to win. That is not even a prediction. It's a clear-cut victory."
Rosen represents Kevin White- cliff, who is serving a 40-year prison term along with Jaime Castillo, Renos Avraam and Brad Branch. If the Davidians prevail on appeal, their sentences would be cut from 40 years to 15 years. They have been in custody since 1993.
The four were acquitted of murder conspiracy charges, which carries a life prison term, but were sentenced to a consecutive 10-year term for man- slaughter.
Davidian Graeme Craddock, who was sentenced to consecutive 10-year terms for possession of a grenade and using a firearm during a crime, could get his sentence cut by five years.
Court officials expect an opinion in the case before the court recesses in late June.
Stephen P. Halbrook of Fairfax, Va., a nationally known expert on gun laws, argued the case on behalf of the Davidians.
"I feel optimistic about the case," Halbrook said. "I did so before we went into the courtroom because this court, as it demonstrated last term, is really doing a lot to stand up for the right to jury trial in this country, the long tradition that goes back many centuries to England and the Middle Ages. This is one of the reasons that we had the American Revolution, because the right to jury trial was being violated."
Halbrook said the original trial jury in San Antonio likely would have acquitted the Davidians on the weapons charges if the government had alleged in the indictment that they used machine guns against agents from the Bureau of Alcohol, Tobacco and Firearms who had come to arrest sect leader David Koresh.
"There just wasn't evidence that these people had machine guns," Halbrook said. "It was a trumped-up charge, it was never asserted to the jury and something that nobody heard anything about until sentencing came around. It was the prosecution theory: 'Let's stick it to them' after they didn't get convictions on the murder conspiracy charges."
Waco attorneys Richard Ferguson and Stanley Rentz, who represent Branch and Craddock, respectively, said they were encouraged by the justices' questions to Robinson.
Ferguson said he is "very optimistic" about the chances of getting the sentences reversed and sent back to Judge Smith for resentencing.
"I thought it was extremely positive, because several of the justices who had been lining up on the other side were saying that they had a problem with this case, like Breyer. So when those guys start saying that they had a problem, it has to make you feel good. I feel better about it, but you can never tell what they are going to do."
Rentz, too, said he likes the chances for a reversal.
"They went after the government's attorney and asked him multiple questions, and he didn't really have good answers for most of those questions," Rentz said. "I thought it was favorable for us. All of the justices seemed to be troubled with the case as a whole, where they could be sentenced for something that they were not found guilty of." The first question by Justice Sandra Day O'Connor to both sides was how many other defendants serving federal sentences for weapons violations would be affected by a ruling favoring the Branch Davidians. Both Robinson and Halbrook said not that many cases would be affected.
Ferguson saw that as a good sign.
"For her to be concerned about that, it means that she is considering finding in our favor, but she wants to make sure that there aren't 10,000 cases out there that would need to be resentenced," Ferguson said. "I don't think there would be that many because normally it was done the way it should have been done."
Rehnquist chided Robinson for the inconsistency among the nation's 13 federal circuit courts on the issue.
"Isn't there any continuity authority in the Justice Department? Isn't there a way that the department can make all of this standard around the country?" Rehnquist asked.
WASHINGTON - The Supreme Court on Monday questioned the way a judge sentenced Branch Davidians who are seeking to cut 25 years from their prison terms for the deadly 1993 raid near Waco.
The justices will decide whether the judge or jury should have decided whether machine guns were involved in the deaths of four agents with the Bureau of Alcohol, Tobacco and Firearms.
U.S. District Judge Walter Smith included that finding in sentencing four defendants to a total of 40 years in prison and a fifth to 20 years. The offenses included voluntary manslaughter and use of a machine gun during a violent crime.
In appealing to the Supreme Court, a defense attorney said the jury never got the chance to decide whether machine guns were used.
That finding by the judge constituted 30 years of the 40-year prison sentences; crimes with unspecified firearms normally require only five years, which would reduce the sentences to 15 years.
"Firearm type is frequently contested at trial, and it's usually an issue for the jury," attorney Stephen P. Halbrook told the court during an hourlong hearing.
A Justice Department attorney said Congress gave judges wide discretion in applying federal sentencing guidelines.
"There's strong evidence of the use of machine guns and destructive devices," assistant attorney general James K. Robinson said.
The Supreme Court will decide the case by early July.
If the justices side with the defendants, all five would be eligible for release in 2008; otherwise, four would serve until 2033 and a fifth until 2013.
"More than that, it has to do with a very important part of the Bill of Rights, and that's the right to a jury trial," Mr. Halbrook said.
51-day standoff
The gunbattle began a 51-day standoff that ended in fire on April 19, 1993. More than 80 Davidians died during the fire, which is the subject of a pending lawsuit, congressional scrutiny and a criminal investigation under the direction of former Sen. John Danforth, R-Mo.
But the Supreme Court justices didn't mention those controversies, focusing instead on the use of federal sentencing guidelines. The judge used those guidelines to sentence Jaime Castillo, Brad Eugene Branch, Renos Lenny Avraam, Kevin A. Whitecliff and Graeme Leonard Craddock.
Judge Smith sentenced the first four to 10 years for aiding and abetting voluntary manslaughter and another 30 years for using machine guns during a violent crime. He also sentenced Mr. Craddock to 10 years for possession of a grenade and, in a downward departure of the federal guidelines, 10 years for the machine-gun offense.
Acquitted
A jury acquitted the Branch Davidian defendants of the major charges: conspiracy to murder federal agents or aiding and abetting the murder of federal agents.
Mr. Halbrook said prosecutors urged the judge to make machine guns part of the sentencing to "jack up" punishment for the lesser convictions.
"It was never really part of the case until it came around on sentencing," Mr. Halbrook said.
Sarah Bain, the jury forewoman during the 1994 trial, flew to Washington for the Supreme Court hearing as a show of support for the defendants.
"We were absolutely shocked with the severity of the judge's augmentation," Ms. Bain said after the hearing. "We thought it would be a slap-on-the-wrist sentence."
The Justice Department lawyer said Congress did not require that juries decide what types of weapons are used in crimes.
"It is a sentencing factor to be determined by the court," Mr. Robinson said.
Questioning
The justices asked more questions of the government lawyer.
Chief Justice William Rehnquist questioned whether certain factual findings can be made after a jury verdict, saying, "The tail can't wag the dog." Noting the difference between the five-year standard for offenses with "firearms" and the 30-year standard for those with "machine guns," Justice Antonin Scalia said, "That's a long tail." The justices also noted, however, that the types of weapons involved in the shootout had to be discussed during testimony at trial.
"Somebody thought it was more likely than not that the people had machine guns," Justice Scalia said.
Justice Sandra Day O'Connor, however, wondered how that related to the individual defendants.
"The evidence isn't all clear linking this particular individual with a machine gun," Justice O'Connor said. "And we don't know if a jury would have been able to reach that determination."
WACO, Texas - The agent who flew the surveillance plane that took infrared videotapes of the siege of the Waco complex later wondered if the tape's audio had been erased at FBI headquarters.
That disclosure was made Monday during a daylong hearing that examined how the federal government handled the evidence from the 1993 siege. The pilot, who for his own security was not identified, said he thought the tape included an audio track at the time it was made, April 19, 1993.
He said he was surprised to find out later that there is no sound on the tape from 10:42 a.m. until 12:16 p.m. - the critical time when the government accelerated its plan to insert tear gas into the Branch Davidian complex and when the fire began that destroyed it.
Mike Caddell, the lead attorney for the Branch Davidian survivors, introduced a note written by another FBI agent saying the pilot later called the bureau headquarters to ask if the sound had been erased.
Under questioning from government lawyers, an expert in video and audio tapes said there was never any sound on the recording to begin with.The lawyers also raised the possibility through their questions that an inexperienced operator had failed to turn on the audio portion of the tape recording.
The handling of the infrared recordings was just one issue posed to U.S. District Judge Walter Smith Jr. He also heard evidence and testimony about 30 missing negatives of still photographs made from another government surveillance plane. The missing negatives, Branch Davidian lawyers claim, is an example of how some key evidence was mishandled.
They also claim the Justice Department dragged its feet when turning over key documents needed for their wrongful-death case. The lawyers for the Davidians want Smith to issue sanctions against the government on the evidence issues.
William Freivogel of The Post-Dispatch contributed information for this report.
WACO, TEXAS - A court-appointed independent expert has determined that the flashes on an infrared videotape of the Waco siege were probably caused by the sun, U.S. District Judge Walter Smith Jr. said Monday.
The judge cautioned that the finding was preliminary and not conclusive. And it did not prevent him from ruling that the Branch Davidians' wrongful death lawsuit against the government will go forward in June. The trial will include all the issues that have been raised, including whether federal agents fired guns at the sect's complex on April 19, 1993, the last day of the siege.
The report by the court's independent expert, Vector Data Systems Ltd., will play a major role in that aspect of the case. Its preliminary findings marked a setback for Branch Davidian plaintiffs who believe agents fired at the complex on the last day of the siege.
Vector is a British company hired at the suggestion of special Waco investigator John Danforth to conduct a re-enactment of the siege to determine whether gunfire shows up on infrared scans.
U.S. Attorney Mike Bradford said he was very pleased with Vector's finding "because it confirms what we've said all along, that there was no government gunfire behind the compound."
Mike Caddell, the lead attorney for the Branch Davidians, said the gunfire issue was only one of several issues that he is bringing up at trial. He said Vector's report was like that of any other expert but conceded that since it was the court's expert "it might be more equal than others." "I've been doing this a long time," Caddell said. "You get good news, and you get bad news."
The trial, set to begin June 19 in Waco, will also examine whether:
* The government used excessive force in the original raid on the Branch Davidian complex.
* Firefighting plans were adequate.
* The FBI knocked down the complex in violation of Attorney General Janet Reno's orders.
In addition to ruling that the trial would go forward, Smith also ruled Monday that two FBI commanders, Jeffrey Jamar and Richard Rogers, would not be named as individual defendants in the case. The ruling means that there are no individually named defendants, and that Smith alone, not a jury, would consider the case.
The judge disclosed Vector's findings at the start of a daylong hearing on motions that sought sanctions against the Justice Department for its handling of evidence in the Waco case. The Branch Davidians had said Justice Department lawyers purposely delayed turning over evidence crucial to their case. They also said some evidence was altered.
Vector detected 56 "thermal events," or flashes, on the FBI's infrared surveillance tape taken by the "Nightstalker" aircraft on April 19, 1993. Of those, Smith said, 43 were passive solar reflections. The other flashes came from active solar reflections or from windblown debris.
He also said Vector's analysis of the surveillance video showed only one individual - a Branch Davidian escaping the fire across the roof of a building at 12:10 p.m. About 80 people died during the last day of the siege from the effects of the fire and from gunshot wounds.
Experts for the Branch Davidians had claimed that the mysterious flashes on the infrared tape were heat signatures from muzzle blasts. They used that theory to press the claim that agents fired at the rear of the complex.
All FBI agents involved in Waco have said they did not fire guns, and there has been no evidence showing any Davidians died from bullet wounds from agents' weapons.
Experts for the government said debris or sun reflections caused the flashes and that since no bodies were visible, there couldn't be anyone shooting the guns. Also, still photographs taken at the time of the siege did not show any agents firing weapons.
The judge said Vector's report would say that none of the thermal events were the result of muzzle blasts either from FBI weapons or from the guns that the Branch Davidians were firing at the agents.
The judge added that the company would report that fires began at the structure almost simultaneously, with one heat signal showing up at a corner of the complex at 12:07 p.m., and another in the kitchen-cafeteria area less than a minute later.
John Collingwood, an FBI spokesman, said in Washington that years of accusations that agents fired at the complex had put a heavy burden on the agents working at Waco that day.
"Hopefully, this is the beginning of lifting that burden, knowing that there is independent corroboration of what they have always said," Collingwood said.
The judge said Vector's preliminary opinion was supported by corroborating evidence that had been studied even before the re-enactment test March 19 at Fort Hood, Texas. Smith said that immediately after that test, he and Danforth met with Vector officials at an Army headquarters building to review the test results.
At that time, Vector officials showed Smith and Danforth still photographs of the raid on the sect's complex Feb. 28, 1993, by agents of the Bureau of Alcohol, Tobacco and Firearms. In that raid, agents attempted to force their way into an upper story window from the roof. The judge said Vector had concluded that some of the flashes on the April 19 video had come from reflections off the broken glass from that window.
The judge said Vector had made other matches between the flashes and other still photographs. But he also cautioned that the Vector report was only one expert's opinion, and that others who examined the flashes may reach other conclusions.
Caddell said the re-enactment test, which played a role in Vector's findings, did not conform to a plan arranged in St. Louis in February. He said the British helicopter involved in the simulation was flying higher and at a different angle than the FBI plane that made the original tape.
WACO, Texas, April 24 (Reuters) - Branch Davidians urged a federal judge on Monday to rule that the U.S. government tampered with evidence from the 1993 Waco siege, but expert witnesses dealt the sect a blow by rejecting a key claim in the lawsuit over the fiery confrontation that left about 80 dead.
Lawyers for surviving Branch Davidians grilled two FBI agents and a government-appointed expert during a hearing on the sect's claims that the government has withheld or altered evidence critical to the wrongful death civil lawsuit. The sect's lawyers contend there are gaps in surveillance videos, photographs and wiretap tapes from the last day of the siege.
About 80 Branch Davidians died when their central Texas compound erupted into flames on April 19, 1993, during an FBI assault to end a 51-day siege. The standoff began with an attempt to arrest cult leader David Koresh on federal weapons charges.
``There is a suspicious pattern to the sound on the video. It's on, it's off, it's on again and then it's off for a very long time,'' Branch Davidian's lawyer Mike Caddell told the pretrial hearing in federal court.
Caddell was referring to a sophisticated infrared video taken from a surveillance plane during the FBI assault. The Branch Davidians' motion charges that the sound track was erased from parts of the videotape to cover up abuses by the FBI.
An FBI pilot who flew the aircraft that made the Forward Looking Infrared Radar (FLIR) videotape said he was surprised to learn there was no audio on the tape. The agent, who was not named in court, said standard procedure was to tape sound as well as images.
But on cross examination by U.S. Attorney Mike Bradford, the pilot said the inexperienced FLIR operator could have forgotten to start the audio recording.
The Davidians' motion also alleges that there are inexplicable gaps in time between rolls of film shot by an FBI photographer from another plane during the assault and that audio tapes from bugging devices inside the compound are copies and not the originals the government claims.
JUDGE PROMISES QUICK RULING
After the hearing, Waco U.S. District Court Judge Walter Smith said he would make a decision soon on whether evidence was tampered with and, if so, whether to impose sanctions on the government.
The judge earlier delivered a blow to a key part of the Branch Davidian lawsuit, which is due to go to trial on June 19.
At the start of the hearing, Smith said court-appointed experts had reported to him last week that a recent recreation of the April 19 siege determined that flashes of light seen on an aerial videotape of the confrontation were not gun blasts from federal agents.
The lawsuit filed by sect survivors is based in part on allegations that the FLIR tape recorded government gunfire that kept Branch Davidians from fleeing their burning compound.
The finding by the British defence consulting group Vector Data Systems was based on tests conducted on March 19 at Fort Hood, Texas, during a three-hour-long simulation of the original FBI raid.
``They (Vector) detected no muzzle blasts either from Davidian or federal agents,'' Smith told the court.
The company found that 56 flashes of light detected in a U.S. government infrared tape made from the air that day were caused by either solar reflections on debris or by windblown debris, he said.
The judge said he was given a telephone summation of the findings and said they were preliminary. A full final report is due by May 8.
``Obviously we are disappointed at the conclusions,'' Caddell said of the Vector report.
The FBI has denied any shooting that day and says the Davidians torched the compound as part of a suicide plan.
FBI spokesman John Collingwood welcomed the independent analysis and the judge's report.
``Years of being accused of shooting at the compound places a heavy burden on the FBI people that were there that day,'' he said in a statement. ``Hopefully this is the beginning of lifting that burden, knowing that there is independent corroboration of what they have always said.''
WACO, Texas (AP) - The federal judge presiding over the Branch Davidians' wrongful-death lawsuit denied the Justice Department's request to throw out most of the plaintiffs' claims Monday.
The government had asked U.S. District Judge Walter Smith to reject three of the five major aspects in the civil lawsuit - that federal agents erred in not bringing in armored firefighting equipment; that they wrongly held back firefighters as the compound burned; and that using tanks to push into the compound deviated from the operations plan the attorney general approved.
Smith's order, released at the close of a pre-trial hearing dealing with alleged evidence tampering, said: ``The court has determined that too many material fact issues are presented to justify dismissal or summary judgment as to the claims remaining in the lawsuit.''
Michael Caddell, lead counsel for the Branch Davidian plaintiffs, said: ``This means we will go trial on every issue, including gunfire.''
Earlier, Smith confirmed that a preliminary review of infrared videotapes recorded during the final hours of the 1993 siege found no firearm muzzle flashes from either federal agents or sect members.
Preliminary results from the court experts' analysis, which compared the 1993 aerial footage to recordings made during a March 19 field test at Fort Hood, showed the flashes most likely were sunlight reflecting off debris, not government gunfire, the judge said.
However, Smith said he does not consider the preliminary analysis by Vector Data Systems indisputable evidence.
U.S. Attorney Mike Bradford said: ``We were very pleased to hear the results of the Vector test. It's consistent with what we've said all along - that there was no government gunfire on April 19.''
The Branch Davidians have argued that government gunfire, which they believe appears as flashes on the infrared video, cut off the sect members' only avenue of escape as flames consumed their retreat. Sect leader David Koresh and some 80 followers died in the April 19, 1993, fire that started during an FBI tear-gassing operation intended to end the 51-day standoff.
The plaintiffs also contend the FBI's on-scene commanders did little to prepare for the possibility of fire - despite Attorney General Janet Reno's order that they be ready for all emergencies - and that the government withheld, destroyed or tampered with crucial evidence.
The government contends the deaths, whether from fire or gunshot wounds, came by the Davidians' own hands.
The British experts identified 57 flashes signifying heat on the infrared film, but none was attributed to muzzle blasts - either from Davidians or government agents, Smith said.
The full analysis of the simulation is expected to be completed by May 8.
The plaintiffs shrugged off the preliminary findings.
``You get good news. You get bad news. ... This is not going to result in a dismissal of the case,'' Caddell said.
Also, an FBI pilot who flew the aircraft that videotaped the final hours of the siege testified that he was surprised to learn last year that no audio accompanied one videotape copy of the infrared recording.
Plaintiffs' attorneys have questioned the repeated silences on the aerial infrared surveillance footage captured by the FBI's Nightstalker plane.
Caddell has called the lack of audio on the tapes ``suspicious.'' On one tape, he said, someone is heard asking for the audio to be turned off.
The plaintiffs were in federal court to air their allegations that the government has tampered with or withheld key evidence in the case, which heads to trial in mid-June. They contend that some of the Forward Looking Infrared, or FLIR, footage bears signs of the audio having been erased.
The Justice Department has dismissed as ``baseless'' the plaintiffs' charges of evidence tampering.
WACO, Texas -- A federal judge in Waco, Texas, said Monday the question of whether FBI agents shot at members of the Branch Davidians on the final day of the 1993 siege remains unanswered, despite a finding by independent experts that no shots were fired.
Judge Walter Smith said he will wait to hear all the evidence and other expert testimony before determining if the agents shot at the Davidians April 19, 1993, the day David Koresh and about 80 followers died in a fire at the facility they called Mount Carmel.
Smith said a preliminary report by Vector Data Systems, the company that oversaw last month's simulation of gunfire outside the Davidian compound, showed no indication of the flashes seen on the FBI's infrared video of the final hours of the siege.
Attorneys for the Davidians have said the flashes represent gunshots fired by federal agents.
The company detected 56 "thermal events" or flashes on the 1993 tape. After comparing those flashes with flashes from the simulation, the company determined they were caused by reflections off debris and not gunfire.
James Brannon, an attorney representing families of Davidians who died during the siege, discounted the findings and called the people who compiled them "very poor experts."
Smith said he did not consider the findings "conclusive evidence" and will consider testimony from other experts during this summer's wrongful-death trial being brought against the government.
Mike Caddell, the lead attorney for Davidian families suing the government, still contends federal agents shot at the Davidians April 19, 1993. Weather conditions on the day of the simulation, which took place at Fort Hood, were different than those at Mt. Carmel on the day of the fire seven years ago. Those differences may explain Vector Data System's findings, he said.
U.S. Attorney Mike Bradford said the findings supported the government's contention that government agents fired no shots throughout the siege. He called the findings "a big blow" that "dramatically changes" the Davidians' case against the government.
The gunfire test findings were announced Monday during a court hearing in Waco on whether the government has mishandled or withheld evidence in the wrongful-death case.
Attorney Caddell has accused the government of "a pattern of gamesmanship, delay and failure to respond in good faith," in the handling of evidence.
Audio appears to have been erased from the FBI's infrared videotapes, photographs taken April 19 when tear gas was fired into Mt.. Carmel are missing, and documents are being withheld, he said.
Judge Smith did not rule on Caddell's request that the government be fined or sanctioned for its handling of the evidence.
The judge did issue two rulings Monday. He turned down a request by the Davidians' attorney to include the two on-site FBI commanders as defendants in the lawsuit.
Judge Smith also turned down a government request to dismiss much of the Davidians' case. That sets the stage for the trial to begin June19.
WASHINGTON (AP) - The 30-year prison sentences given to four Branch Davidians who survived the 1993 Waco siege should be struck down because a judge improperly applied a firearms law to enhance the penalty, their lawyer told the Supreme Court Monday.
The law allows for stiffer sentences for defendants who carry certain types of weapons, including machine guns and bombs, during a violent crime.
The Davidians' lawyer, Stephen Halbrook of Fairfax, Va., argued the sentences were inappropriate because no jury ever determined the type of weapon carried by the defendants.
``There is no evidence that ties a machine gun to any of these petitioners,'' Halbrook said.
Assistant Attorney General James K. Robinson defended the law, saying Congress intended to give judges leeway at sentencing to provide more substantial punishment. Prosecutors only were required to prove that the Davidians committed a violent crime, he said.
Five Davidians were convicted in 1994 of voluntary manslaughter in the slayings of four federal agents during a botched Bureau of Alcohol, Tobacco and Firearms raid on the sect's compound outside Waco, Texas. The raid led to a 51-day standoff that ended when flames swept through the sect's retreat. Davidian leader David Koresh and some 80 followers died during the inferno, some from the fire, others from gunshot wounds.
Each of the five Davidians was sentenced to 10 years in prison. The presiding judge tacked 30 years more onto the sentences of four men - Renos Avraam, Brad Branch, Jaime Castillo and Kevin Whitecliff - after finding they had carried firearms during commission of a violent crime.
A fifth Davidian, Graeme Craddock, was sentenced to 10 years for using a grenade and was handed a consecutive 10-year term for using a machine gun.
The jury never was asked to decide what type of firearm was used. U.S. District Judge Walter Smith did not determine whether the defendants had used machine guns during the Feb. 28, 1993, gun battle but said the weapons had been available to them.
The firearms law allows a judge to add a five-year sentence for carrying a weapon during commission of a violent or drug-trafficking crime; 10 years if the weapon is a semi-automatic firearm; and 30 years if it is a machine gun or destructive device.
Smith's ruling was upheld by the 5th U.S. Circuit Court of Appeals. But the justices appeared concerned Monday by the sentence-enhancing aspect of the firearms law and the authority granted to judges to substantially inflate sentences without a jury determination.
``We're all obviously struggling with the way to approach this case,'' Justice Stephen G. Breyer said.
Halbrook said later that the government only pursued the firearms violation option after failing to secure convictions against the Davidians on the far more serious counts of murder and conspiracy to commit murder.
``This is a case where the prosecution decided since they could not give stiff sentences for murder, then they would think up a new theory and say, `Well, these people were carrying machine guns, let's give them a 30-year sentence,''' Halbrook told reporters. ``This was an afterthought to stick it to them.''
The five Davidians should serve no more than 15 years, Halbrook argued: 10 years on their original convictions and five years apiece for carrying a weapon during commission of a violent crime.
The jury's forewoman, who traveled to Washington to observe the case, said they were troubled when the judge tacked on the firearms sentences.
``We were absolutely shocked at the severity of the judge's augmentation of what we thought was going to be a slap on the wrist of the defendants,'' said Sarah Bain of San Antonio, Texas. ``We didn't know anything about the five years to 30 years.'' The case is Castillo vs. U.S., 99-658.
WACO, Texas (AP) - A preliminary review of infrared videotapes made during the final hours of the Branch Davidian siege found no firearm muzzle flashes from either federal agents or sect members, a judge said at pretrial hearing today.
U.S. District Judge Walter Smith described the court experts' findings for attorneys for the plaintiffs and the government at the beginning of a pretrial hearing to determine whether key evidence gathered after the fiery raid was mishandled.
Davidian leader David Koresh and some 80 followers died during the April 19, 1993, fire that occurred several hours into an FBI tear-gassing operation intended to end the sect's 51-day standoff.
The government contends their deaths, whether from fire or gunshot wounds, came by their own hands.
The plaintiffs argue in their wrongful death lawsuit that government gunfire cut off the Davidians' only avenue of escape from the fire. They also contend the FBI's on-scene commanders did little to prepare for the possibility of fire despite Attorney General Janet Reno's order that they be ready for all emergencies.
The judge told the lawyers that the review of the infrared videotape detected about 57 ``thermal events,'' defined as flashes of light signifying heat. There ``were no muzzle blasts either from Branch Davidians or government agents,'' Smith told attorneys.
He added that the only person detected on the tape was a Branch Davidian who was on a roof.
``You get good news. You get bad news .... This is not going to result in a dismissal of the case,'' Michael Caddell, lead attorney for the Branch Davidians, said about the preliminary findings.
Caddell also said there was ``a suspicious pattern'' in the audio portion of the infrared videotape. Several portions of the tape are missing audio, and on one section of the tape someone is heard asking that the audio be turned off, the lawyer said.
Smith cautioned that he does not consider the report to be incontrovertible evidence.
Preliminary results from a recent court-ordered simulation of the siege showed that flashes caught on the original infrared videotape were most likely sunlight reflecting off debris, not government gunfire as plaintiffs claim. Experts expect to submit their analysis of that simulation to the court by May 8.
Smith also was expected to review the plaintiffs' complaint that the government withheld, destroyed or tampered with crucial evidence in their wrongful-death lawsuit.
The plaintiffs' attorneys filed a motion in March that accuses the government of:
Never returning a roll of film confiscated from the Texas Rangers showing bodies and weapons found inside a concrete bunker. ``The absence of these photographs makes it very difficult, if not impossible, to determine if any of these persons were shot outside of that room and moved into it prior to or after the fire,'' the motion said.
Representing as originals audio recordings made from listening devices planted inside the compound during the siege. An analysis the plaintiffs commissioned suggests the tapes are copies. The tapes - which the government has relied on for proof that the Davidians spread fuel and started the fire - also bear signs of being recorded with multiple recorders, the plaintiffs' tape expert concluded.
The government has called the allegations baseless and says the accusations relied on incomplete, illogical or scientifically invalid analyses.
But in a response filed one week ago, the government acknowledged it is missing 30 original negatives from the first of at least seven rolls of film shot by an FBI photographer who circled 1,000 feet above the complex in a surveillance aircraft.
The government, however, has prints of the missing negatives and the original contact sheet of the negatives.
The trial on the lawsuit is set to begin June 19.
Waco, FBI and the Branch Davidians: Updates
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