THE 1994 TRIAL

          Eleven Branch Davidians faced trial in January and February of 1994, charged with conspiracy to murder federal agents, murder of federal agents, and various weapons charges.  All eleven were found innocent of conspiracy to murder and murder.  However, five were convicted of aiding and abetting voluntary manslaughter and eight of weapons charges.  (One Davidian cooperated with federal authorities, pled guilty to impeding federal agents and received a three year sentence.)
          Even these convictions were gained only because of prosecutorial and judicial misconduct.   As revealed during the 1995 House Waco hearings, the Department of Justice stopped interviews with BATF agents that might have revealed evidence that could have acquitted the Davidians. (Click here for more details about this in my report on the hearings.) The two federal prosecutors, Ray Jahn and William Johnston, themselves were involved in the deadly raids and wanted to score convictions at any price.  They condoned destruction of physical evidence, federal agents lying on the stand, withheld evidence of a Davidian's innocence which forced him to spend a year in jail before being acquitted, withheld some evidence against defendants until the last moment to frustrate defense efforts, withheld evidence that might discredit their own witnesses, and unduly influenced and coached witnesses.
          U.S. District Judge Walter J. Smith, who presided over the trial, was under investigation during the trial by the Justice Department for five months for allegedly lying under oath during a civil suit trial.  The Justice Department dismissed these potentially career-ruining charges in the middle of the trial.
          Declaring he would "not allow the government to be put on trial," Judge Smith forbid defense attorneys from mentioning self-defense, or asking questions, presenting evidence or calling witnesses who could prove self-defense.  This was despite the fact the Davidians' primary defense against all charges was that under statutory and common law Bureau of Alcohol, Tobacco and Firearms agents' excessive force on February 28, 1993--an armed attack by 76 agents armed with submachine guns, shooting from helicopters, and throwing flash-bang grenades--gave the Davidians the right to use armed force in self-defense.  Smith only allowed mention of self-defense in closing arguments.
          Despite this judicial and prosecutorial misconduct, jurors found Davidians innocent of conspiracy to murder, and murder of, federal agents because of evidence that BATF's February 28th attack was brutal and unprovoked.  Jurors were convinced Davidians acted in self-defense.  Jurors also did not believe that the Davidians were responsible for the April 19, 1993 fire.
          Smith did not instruct the jury that defendants also could be found innocent of the charge of aiding and abetting voluntary manslaughter by reason of self-defense.  Jurors later admitted they probably would have done so if they had been properly instructed.  They found five Davidians--Renos Avraam, Brad Branch, Jaime Castillo, Livingstone Fagan, and Kevin Whitecliff--guilty.  Smith sentenced each to full 10 year sentences.
          In his instructions to the jury, Judge Smith explicitly tied Count Three, using or carrying a firearm during and in relation to the commission of a crime of violence, only to Count One, conspiring to murder federal agents.  However, the jury relied on the verdict form which did not specify this connection.  Confused jurors therefore found seven Davidians--Avraam, Branch, Castillo, Fagan, Whitecliff and Graeme Craddock and Ruth Riddle--guilty of this charge.  Smith originally set aside the Count Three weapons verdicts but then honored prosecutors' requests to reinstated them--this despite the fact that Title 18 924(c)(1) of the U.S. Code clearly specifies that the defendant must be "convicted" of the first crime (i.e., conspiracy to murder in Davidians' case) before they can be convicted of using a firearm in relation to the crime.
          At sentencing in Smith claimed that because the government alleged machineguns were found on the premises, the defendants carried them--despite no such finding of guilt by the jury.  He therefore sentenced Avraam, Branch, Castillo, Fagan, and Whitecliff to the maximum sentence of 30 years each.  He sentenced Craddock to ten years and Riddle to five years.  Kathryn Schroeder, who cooperated with prosecutors, received a three year sentence.  Riddle and Schroeder have served their sentences and are now free.
          Despite questionable and insufficient evidence, jurors also found Graeme Craddock guilty of possession of an unregistered hand grenade and Paul Fatta of conspiring to illegally convert weapons and aiding and abetting conversion.  Craddock received another 10 year sentence and Fatta a 15 year sentence.
          After the verdicts were announced on June 17, 1994, jury forewoman Sarah Bain went on a number of radio talk shows to protest Judge Smith's actions in the case.  Bain told one reporter, "The federal government was absolutely out of control there.  We spoke in the jury room about the fact that the wrong people were on trial, that it should have been the ones that planned the raid and orchestrated it and insisted on carrying out this plan who should have been on trial."  For a 1994 interview with Sarah Bain, click here.
          (For more detailed information about the trial click here and go to the last section of the chapter from The Davidian Massacre.)

THE 1996 DAVIDIAN APPEALS
          Davidians Avraam, Branch, Craddock, Castillo, Fatta, and Whitecliff, immediately appealed the verdicts and sentences.  (Ruth Riddle declined to appeal, fearing she might be given a longer sentence.  She was released in December of 1997. Livingstone Fagan refused to appeal, as a sign of non-cooperation with a system he did not believe would bring him justice.)
           All retained their original attorneys except Jaime Castillo who engaged weapons expert Stephen Halbrook.  Halbrook helped win the June, 1994 Staples vs. the United States court case which protects gun owners who unwittingly come into possession of an illegal weapon.

The Davidian Arguments
          The Fifth Circuit Court of Appeals heard Oral Arguments on January 4, 1997.  Following are arguments used by the defendants in their appeals and some notes on the judges' and federal attorney's comments.

1.       The Court Erred in Not Charging the Jury that Self-Defense is A Defense to Manslaughter
          Judge Smith instructed the jury that it could find the Davidians innocent of conspiracy to murder and murder of federal agents if they found Davidians acted in self-defense.  Jurors did find them innocent on those grounds, believing that the Bureau of Alcohol, Tobacco and Firearms February 28, 1993 attack constituted excessive force.  Judge Smith did not instruct jurors that they could use this defense against the charge of aiding and abetting voluntary manslaughter.  Some jurors hold they would have found them innocent, had the judge
given them that option.
          Defendants argue that since self-defense was allowed in the murder charges, it should have been allowed in the manslaughter charge because there was ample evidence of excessive force--the judge's error should not weigh against the defendants. (U.S. v. Panter, Mathews v. U.S., U.S. v. Johnson, U.S. v. Span, U.S. v. Gometz, etc.)
          (Government attorney Wyderko admitted he could give no reason or rationale for the judge's not allowing self-defense as a defense.  Judges could dismiss for lack of evidence or direct there be a new trial.)

2.   The Weapons Conviction Should be Set Aside because U.S.C. 924 (c) Requires Conviction for the Predicate Offense
          The confused jury found defendants guilty of carrying a weapon in commission of the violent crime of conspiracy to murder federal agents, after finding them innocent of conspiracy to murder.  While Judge Smith's instructions to the jury specified that the two charges were connected, the jury verdict form, on which the jury relied, did not.  Jurors said they would have voted the defendants innocent had they realized the weapons charge was tied only to the conspiracy
charge.
          Defendants argue that statute law specifies that only if the defendant is found guilty of the first offense, can the defendant be convicted of the second. U.S. v. Lucien recently held just that.  (Judges could dismiss for lack of evidence or for reasons argued by defense.)

3.     The Court Erred in Sentencing Defendants to Thirty Years Under U.S.C. 924 (c)
          The jury did not find any defendant except Craddock guilty of carrying or using an illegal weapon.  The maximum sentence for carrying a legal weapon during the commission of a crime of violence is five years; for an illegal one, it is thirty years.
          Defendants argue that U.S. v. Correa-Ventura, U.S. v. Simms, U.S. v. Martinez, U.S. v. Melvin and U.S. v. Rodriquez all hold that unless a jury finds that a defendant was in possession of an illegal weapon, for sentencing purposes it must be assumed he or she had only a legal firearm and that the maximum sentence is five years.  The Fifth Circuit has agreed with this argument in the past.
          In U.S. v. Bailey the Supreme Court ruled after written appeals were submitted that the alleged weapons must be easily reachable or in hand for the government to claim the defendant had the weapon.  Defense attorneys said that this would also apply to the Davidians having alleged machineguns at hand--no evidence was presented each individual did.   (Judges could reduce sentences to five years.)

4.   The Court Took Away the Opportunity to Poll the Jury
          Judge Smith initially set aside the inconsistent convictions for using a weapon during the commission of a crime of violence, thereby leading attorneys to believe that they did not need to poll the jury to see if all in fact agreed with that verdict.  Several days later, the judge reinstated the guilty verdicts.
          Defendants argue that this failure to poll the jury deprives defendants of a right guaranteed by F.R. Crim.P. 31(d) and that defendants deserve a new trial on the charge.  (Judges did not seem very sympathetic to this argument.)

5.   Insufficient Evidence to Sustain Convictions
          Depending upon the nature of the evidence submitted against each defendant (summarized in the attached leaflet), defendants will argue that there was insufficient evidence upon which a jury could find them guilty of aiding and abetting manslaughter or of any weapons charges--or that the element of self-defense was so strong as to render the evidence irrelevant.  This includes defendants Paul Fatta- against whom there was no evidence presented that he had knowledge two guns he had purchased allegedly had been converted to machine guns--and Graeme Craddock, who admitted he'd been given what he was told was a live grenade.  However, the evidence that the grenade found six days later was the same grenade he was given was dubious.

The Fifth Circuit Court of Appeals Decision
          On August 5, 1996 the Court affirmed the convictions of the six Davidians, despite the feeble evidence.  (The full text of the decision is at http://www.ca5.uscourts.gov:8081/ISYSquery/IRL653.tmp/1/doc )  Judges wrote that using "more than 70 well-armed agents" to arrest David  Koresh was not excessive force and "A citizen may not initiate a fire-fight solely on the ground that police sent too many well-armed officers to arrest him.  We reject this invitation for individuals to forcibly resist arrest and then put their arresters on trial for the reasonableness of their tactical decisions." Judge Higgenbotham (Reagan appointee supposedly good on the gun issue) rejected their claim that they were only defending themselves.  Judge William Schwartzer (a San Francisco liberal) said the six convictions should be set aside, saying the force used was excessive.
          The judges upheld the confused jury's finding that the Davidians used a weapon during the crime of conspiracy to kill federal agents--even though they found them innocent of conspiracy. However, the Court did hold that four Davidians could have 25 years cut off their sentences because appeals judges found that the sentences for allegedly using an *illegal* weapon were invalid under the recent Supreme Court decision in the Bailey case.  That case held that prosecutors have to prove from the trial record that the individual knew he/she had an illegal weapon.
          Unfortunately, the appeals judges sent this decision on sentencing back to the notoriously anti-Davidian Judge Smith.  As we shall see, It took him more than a year to render his decision.
          Davidian attorneys immediately filed an appeal with the Supreme Court because other circuit courts have found that *only* the jury can decide if defendants had illegal weapons while the Fifth Circuit has now ruled the judge can make that decision.  When there is a conflict between different circuit court rulings, such cases usually go to the Supreme Court.   In April, 1997 the Supreme Court ruled it would not hear the Davidians case until Judge Smith had ruled because technically the Fifth Circuit had vacated the sentences on the guns.  The press widely mis-reported this as the Supreme Court's turning down their cases for all time.  As we shall see, in January of 2000 the Supreme Court did indeed take the Davidians case.
          The Fifth Circuit judges also ruled that *if* another appeals court then considering in the U.S. vs. Kirk case ruled that the federal government did not have the right under the commerce clause to regulate/ban automatic weapons, Paul Fatta could be released.  (Of course, no evidence was presented at trial that Fatta knew that the two weapons he had bought allegedly were converted to automatics, but the judges did not let that lack of evidence sway their decision.)  However, three Fifth Circuit judges upheld the ban; the whole Fifth Circuit then decided to hear the case--but split 8 to 8 on whether to uphold it, leaving the three judge ruling to stand.  If Kirk appealed to the Supreme Court, there is no record on the Court's search site. Around this time Paul Fatta dropped out of the appeals process.

1997 Re-Sentencing Hearing in Waco
          Not surprisingly on September 4, 1997 Judge Smith re-imposed the same sentences on the five Davidians, claiming there was sufficient evidence they carried illegal weapons. (Smith tried to evade responsibility by claiming that the Fifth Circuit decision gave him no other choice.) This despite that at trial only dubious evidence was presented that two Davidians carried such weapons.  Graeme Craddock confessed he was given an allegeldy illegal grenade which the FBI managed to find only 3 days after the fire; also, a jail house snitch alleged Avraam boasted that he had shot an automatic on February 28, 1993.
          Nevertheless, U.S. Attorney Bill Johnston told reporters afterward that: "There was evidence that the conspirators actively employed machine guns and other weapons including hand grenades during these events."
          Below are excerpts from Jack DeVault's account of the re-sentencing. (He is author of The Waco Whitewash.)

     "U.S. Marshals swarmed all over the federal building and the courtroom during this hearing in Waco... The courtroom was probably about half full with 40 spectators when all were in...The prisoners, already in their places, were shackled with one wrist chained to their waists and they were bound with leg irons. They were attired in khaki colored pajama bottoms and T-shirts. Kevin Whitecliff, Brad Branch and Renos Avraam had let their hair grow and were looking pretty shaggy. Jaime Castillo and Graeme Craddock had their hair neatly trimmed. All of them appeared to have aged more than the three years which have passed since I had last seen them...

    The allocution portion of this sentencing hearing provided each prisoner an opportunity to speak for himself before his sentence was pronounced. This did provide some fireworks and food for thought. Brad Branch, Kevin Whitecliff, and Jaime Castillo chose not to attempt any allocution. When it came time for Graeme Craddock, however, he did wish to speak. You may recall that Craddock was the Australian electrical engineer...[H]e made a real effort to clear up some flaws in the record. He was particularly disturbed by the official record which indicated that he had thrown the telephone out the front door of Mt. Carmel during the final assault by the FBI on April 19, 1993. . .Special Agent Byron Sage, the FBI negotiator kept calling on him to come out and hook up the line, a command which he couldn't comply with because the huge tank that was tearing the building down had torn that line up.

     When Craddock finished it was Renos Avraam's turn for allocution. This young man was not intimidated by the judge. He spoke for about 15 minutes repeatedly accused Judge Smith of acting on his personal feelings and ignoring the law. He said, "This nation is supposed to run under laws, not personal feelings. When you ignore the law you sow the seeds of terrorism."

      "Why wasn't the law applied? Because you didn't want to apply it. You are busy protecting this government by tiptoeing around the law. You apply it only when it works for you and you ignore it when it works for us."  His soliloquy was finally stopped by his attorney, but he had clearly made the judge uneasy as he kept turning a ball point pen abound in his right hand. Prosecutor William Johnston arose and was outraged at the very idea that Avraam had suggested that terrorism might be caused by the government injustice.

Supreme Court Rules in Favor of Davidian Prisoners
        To read the Davidians October, 1999 Supreme Court appeal, click here.  The government quickly responded to this appeal and the Davidian attorneys replied to their reply.  On January 14, 2000 the Supreme Court Clerk informed Davidian attorneys that they had decided to hear the case.  It refused to rule on whether the judge should have upheld the gun conviction, but did agree to rule on whether the Davidians should receive the additional 25 year sentences for four defendants currently appealing.  To read arguments go to Davidian attorney Steve Halbrook's home page: http://members.aol.com/protell/
        I attended the arguments April 24, 2000 and there was no doubt the Justices were skeptical of the government's arguments.  And on June 4, 2000 the Supreme Court decided to cut 25 years from four Davidians' sentences and five from anothers'. With good behavior, the five should be out in less than five more years.  However, attorneys also are look for legal basis to remove five of those years. The Supreme Court refused to hear Paul Fatta's appeal of his 15 year sentence, although there was no real evidence he committed the crime of conspiring to manufacture machineguns.  Livingstone Fagan, who received a 40 year sentence, refused to appeal as a protest against the government's crimes. However, when he has served 15 years, he can file a habeas corpus appeal and he will be released because there will be no legal basis on which to hold him Below are a new story and attorney's comments about that decision.  For more information on the prisoners, click here.

Davidian attorneys and trial juror Sarah Bain at Supreme Court 4-24-00.
APRIL 24, 2000
SUPREME COURT REVIEWS DAVIDIAN SENTENCES
        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.
...The Supreme Court will decide the case by early July.
        ...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 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 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."
        For whole story go to: http://dallasnews.com/waco/69137_RULING25.html

U.S. SUPREME COURT IN WACO CASE UPHOLDS RIGHT TO JURY TRIAL OF FIREARM TYPES IN GUN CONTROL ACT
Steve Halbrook, Esq.'s (lead attorney for the Davidians_ summary of today's Supreme Court opinion in Castillo v. U.S., June 5, 2000

          The U.S. Supreme Court unanimously decided today in Castillo et al. v. United States that firearm types defined in the federal Gun Control Act are elements of offenses that must be alleged in the indictment and decided by the jury beyond a reasonable doubt.  The case involves the 30-year sentences imposed on Branch Davidians who escaped from the tragic fire near Waco, Texas, in 1993.  They were charged with and convicted of carrying or using a "firearm" in a crime of violence during the BATF raid.  18 U.S.C. º 924(c) makes this a 5-year offense, but the sentencing judge decided that "machineguns" were used and imposed a 30-year sentence.

          Stephen P. Halbrook argued the case for the imprisoned Davidians in the Supreme Court on April 24.  Today's 9-0 opinion, authored by Justice Breyer, held that whether a gun is a "firearm," "machinegun," or other listed weapon is an element of the offense and not a sentencing factor.  The Court agreed at the outset that "treating facts that lead to an increase in the maximum sentence as a sentencing factor would give rise to significant constitutional questions. . . . Here, even apart from the doctrine of constitutional doubt, our consideration of º 924(c)(1)'s language, structure, context, history, and such other factors as typically help courts determine a statute's objectives, leads us to conclude that the relevant words create a separate substantive crime."  The statute provides that whoever, during and in relation to any crime of violence, "uses or carries a firearm, shall be sentenced to imprisonment for five years, and if the firearm is a . . . machinegun, . . .to imprisonment for thirty years."

         First, this language can be read "as simply substituting the word æmachinegun' for the initial word æfirearm'; thereby both incorporating by reference the initial phrases that relate the basic elements of the crime and creating a different crime containing one new element, i.e., the use or carrying of a æmachinegun' during and in relation to a crime of violence." The structure clarifies any ambiguity in that carrying or using a firearm is clearly an offense, and the machinegun language appears in the same sentence without being broken up into subsections.    Second, "we cannot say that courts have typically or traditionally used firearm types (such as æshotgun' or æmachinegun') as sentencing factors . . .."  The Court emphasized that "the difference between carrying, say, a pistol and carrying a machinegun . . . is great, both in degree and kind."  Several provisions of the Gun Control Act distinguish firearm types in defining offenses.  Here, machinegun use is punishable by six-times greater imprisonment than firearm use.

        Third, determination of the issue by the jury rather than a judge does not complicate a trial or risk unfairness.  Indeed, "in determining whether a defendant used or carried a æfirearm,' the jury ordinarily will be asked to assess the particular weapon at issue as well as the circumstances under which it was allegedly used."  Leaving it to the judge to decide whether a machinegun was used "might unnecessarily produce a conflict between the judge and the jury."  Where two weapons are allegedly used, the jury may decide that only oneûsuch as a pistolûwas used.  "A judge's later, sentencing-related decision that the defendant used the machinegun, rather than, say, the pistol, might conflict with the jury's belief that he actively used the pistol, which factual belief underlay its firearm æuse' conviction."  "There is no reason to think that Congress would have wanted a judge's views to prevail in a case of so direct a factual conflict, particularly when the sentencing judge applies a lower standard of proof and when 25 additional years in prison are at stake."

         Fourth, the legislative history does not support the government.  The º 924(c) firearm offense was enacted in the Gun Control Act of 1968, which was amended with the machinegun clause in the Firearms Owners' Protection Act of 1986.  Among other sponsors and supporters, Rep. Volkmer explained that the latter amendment "includes stiff mandatory sentences for the use of firearms, including machineguns and silencers, in relation to violent or drug trafficking crimes."  Such statements "show only that Congress believed that the æmachinegun' and æfirearm' provisions would work similarly" and "seemingly describe offense conduct, and, thus, argue against (not for) the Government's position."

         Fifth, "the length and severity of an added mandatory sentence that turns on the presence or absence of a æmachinegun' (or any of the other listed firearm types) weighs in favor of treating such offense-related words as referring to an element. Thus, if after considering traditional interpretive factors, we were left genuinely uncertain as to Congress' intent in this regard, we would assume a preference for traditional jury determination of so important a factual matter."  The Court refers to several precedents holding that the "rule of lenity requires that ambiguous criminal statutes be construed in favor of the accused."

        For the above reasons, the Court reversed the judgment of the U.S. Court of Appeals for the Fifth Circuit and remanded the case for proceedings consistent with the opinion.  The effect of this is that the defendants' 30-year sentences for machinegun use must be vacated and that they should be resentenced to 5-years imprisonment for firearm use, the charge on which they were indicted and convicted.

September 18, 2000: Judge reduces sentences for six Branch Davidians

          A federal judge in Waco has reduced the lengthy prison sentences of six  Branch Davidians, three months after the U.S. Supreme Court said he  overstepped his authority by increasing punishments for most of them by 25  years.
          The order by U.S. District Judge Walter S. Smith Jr. will cut the sentences  of five of the six Branch Davidians from 40 to 15 years and the sixth from 20  years to 15.
          Although Branch Davidian Livingstone Fagan chose not to appeal, the judge  reduced his sentence anyway.
          The judge wrote in his two-page order that it would be "manifestly unfair"  not to reduce Fagan's sentence despite his decision not to appeal.
          Smith's order reduces from 30 years to five years the sentences he imposed on  Fagan, Kevin Whitecliff, Jaime Castillo, Renos Avraam and Brad Branch in 1994  for using a weapon during a crime of violence. Those five-year terms will be  stacked on 10-year sentences for manslaughter.
          Graeme Craddock, who was sentenced to 10 years for possession of a grenade  and 10 years for using a firearm, will have his sentence reduced by five  years.
          Waco attorney Richard Ferguson, who represents Branch, said the sentence  reductions likely will make the Davidians eligible for release in about 51/2  years.
          "We are very happy for our clients," Ferguson said. "Forty years is almost  like a life sentence without parole for men who are in their 30s and this  gives them a chance at having a life. My clients feel they should be let out  now. They feel they were wronged as much as anyone. But we feel we have given  them 25 years of their life back and we feel like we have accomplished  something."
          Another by-product of the ruling, Ferguson said, is that the Davidians likely  will be sent to less-restrictive prisons.
          "When you go from having a 40-year sentence for manslaughter and for using a  machine gun to a 15-year sentence with just an ordinary firearm, you get  reclassified and sent to a place that is a lot more palatable. They were  putting them in with some pretty tough cats," Ferguson said.
          The Supreme Court ruled that Smith erred when he determined on his own at  sentencing that the Branch Davidians used machine guns or "enhanced weapons"  during their Feb. 28, 1993, firefight with agents from the Bureau of Alcohol,  Tobacco and Firearms.
          The agents had come to arrest cult leader David Koresh for weapons violations  when the gun battle erupted. Four agents and five Davidians were killed and  many more, including Koresh, were wounded.
          The high court ruled that the type of firearm used in a crime is an essential  element of the offense alleged and must be decided by a jury during trial,  not by a judge at sentencing.
          Members of the federal court jury in San Antonio, who acquitted the Davidians  in 1994 of the more serious charge of conspiracy to murder federal agents,  were not asked to determine what types of weapons were used.
          Four Branch Davidians were acquitted of all charges stemming from the raid  and a fifth was convicted on a weapons count. Six others were convicted of  manslaughter and carrying or using a firearm during a crime of violence.
          Davidian attorneys believed the firearm charge carried a mandatory five-year  prison term.
          However, Smith, adopting a motion by federal prosecutors, found the Davidians  used machine guns and increased their prison sentences from five to 30 years  on the weapons conviction.
          "The court has been advised by the government that it has no desire to  attempt to retry the defendants on the offense charged in Count 3," Smith  wrote in his order. "Therefore, the court will impose the least sentence for  that offense” five years of imprisonment consecutive to the sentences  imposed on the other counts for which the defendants were convicted."
          U.S. Attorney Bill Blagg of San Antonio, whose office prosecuted the  Davidians, declined comment Monday, saying his office had been recused from  all matters relating to the Branch Davidians before the trial of the  wrongful-death case against the government in Smith's court this summer.
          Craddock's attorney, Stanley Rentz of Waco, said he had hoped Smith would  have reduced Craddock's sentence more.
           "I would have liked to have seen him cut it down to one or two years or a  proportionate departure downward off the five years," Rentz said. "But it is  certainly better than nothing."
          Stephen P. Halbrook, the Fairfax, Va., attorney who argued the case before  the Supreme Court in April, said it would have been "quite a tragedy" if the  Supreme Court had not reversed the case.
          "It took going all the way to the Supreme Court and a lot of persistence, but  we are thankful that the case has reached this point."
Whole story at : http://www.accesswaco.com/auto/feed/news/local/2000/09/18/969334661.23405.7436.0160.html