HRT helicopter pilot, Frank Costanza, flew six reconnaissance
missions on August 22, 1992, from the staging area at the command
post to an area above and around the hilltop where the Weaver
cabin was located. He believed that the purpose of the flights
was to afford FBI, Marshals Service, and U.S. Attorney's Office
personnel the opportunity to assess the area and the terrain
around the Weaver residence. Costanza tried to avoid hostile fire
during the flights by remaining at least 200 yards away from the
cabin. He described the weather conditions as a mixture of rain
and snow and noted that visibility was limited.(634)
According to Glenn, the helicopter was used to fly over the area
to identify possible sites for the sniper/observer teams. Aerial
operations were severely hampered by inclement weather. The low
cloud ceiling made it impossible to operate the helicopters out
of range of the weapons thought to be in the Weaver cabin.
Accordingly, the helicopters were utilized at low altitudes, and
they weaved "around the crisis site.....to avoid being an obvious
target." Glenn took one flight that was within range of a rifle
shot, but the helicopter never flew directly over the Weaver
cabin.(635)
A member of the Marshals Service SOG reported that, while he was
at the command post area on Saturday, August 22, he saw the
helicopter fly toward the cabin and return very quickly. He heard
that the Weavers had come out of the cabin and had acted in a
hostile manner toward the helicopter but that they had not fired
at the helicopter.(636)
f. Placement of HRT Sniper/Observers in Area Surrounding the
Weaver Cabin
Because of the rugged terrain and deteriorating weather
conditions, HRT sniper/observers began arriving at positions on
the ridge overlooking the Weaver cabin approximately two to two
and one half hours after setting out from the command
post/staging area.(637)
At 5:07 p.m., the HRT sniper/observer team designated as Sierra
4, of "S-4," arrived at its position. this team consisted of Lon
Horiuchi and Dale Monroe. At 5:20 p.m., the HRT team designated
Sierra 2, consisting of Edward Wenger and Warren Bamford, arrived
at its position. At 5:52 p.m., Sierra 3, consisting of Jerome
Barker and Christopher Curran, arrived at its position. Between
5:52 p.m. and 5:57 p.m., S-1, consisting of HRT members
Christopher Whitcomb, Roger Love, and Mark Tilton, arrived at its
position.(638)
Horiuchi's "Sierra 4" position was the closest of the four
positions, almost due north of the cabin in a line almost
parallel to the front wall. He was at a slight angle above the
cabin, approximately 646 feet from the front door and
approximately 579 feet from the outbuilding known as the
"birthing shed." There was a ravine between Horiuchi and the
cabin.(639) Horiuchi could see the top of the front porch of
the cabin and straight through the porch. He could see the front
of the door as it opened and when it was in an open position.
Horiuchi could not see the front door when it was closed, nor
could he see into the cabin. He could also see the deck at the
back of the cabin.(640)
g. Circumstances Involving the Two Rifle Shots Taken by HRT
Member Lon Horiuchi
(1) The First Shot
At approximately 5:45 p.m., Horiuchi saw an unarmed, young
female, slight of build, with a ponytail, run from the front of
the Weaver cabin toward a rocky outcropping.
(G.J.)(641)
(GARRITY)(642)
After viewing this female with the naked eye, Horiuchi observed
her through his rifle scope and determined that she was a child.
Although he could have fired at her, he did not because "the
female was not armed at that time and (he) was assuming she was a
child because of the size of the stature."(643) Horiuchi could
not recall whether the front door was open when the child was
outside the cabin, but after she returned to the cabin, the door
was closed.(644)
Within a minute after the girl returned to the cabin, Horiuchi
observed an unarmed male on the back deck. The man moved to the
back corner of the deck where ponchos or blankets were hanging on
a string. "It seemed like he just felt them to see if they were
dry and then he went back in."(645) The man was in Horiuchi's
vision for perhaps ten seconds, and, although Horiuchi could have
both fired and hit the person, he did not because "the individual
did not appear to be armed, there was nothing in his hand, and I
did not see any weapons around or on his person."(646) HRT
sniper.observer Whitcomb, from his Sierra-1 position, the highest
and farthest away from the Weaver cabin of the four positions,
could vaguely observe this individual on the back porch.(647)
The other HRT sniper/observers did not report that they saw a man
on the back porch.
At 5:57 p.m., the HRT helicopter took off for its sixth
observation mission of the day. HRT Commander Rogers, Marshals
Service Deputy Director Smith, Marshals Service SOG Commander
Haynes, and HRT pilot Frank Costanza were aboard.(649) Haynes
observed someone outside the cabin, but he could not identify the
person or see whether the person was armed.(650) Rogers and
Smith recall that someone aboard the helicopter reported seeing
two persons outside the cabin, armed with rifles, although none
of the other people in the helicopter recalls observing anyone
outside the cabin. About the time the helicopter landed, Costanza
recalls hearing radio reports that two shots had been fired.(652)
Horiuchi heard the helicopter and the armored personnel carriers
start their engines, and he saw the helicopter take off from the
command post to the left of the Weaver cabin, circle to his left
and out of his sight.(653) Within five to ten seconds after
the helicopter engine started, Horiuchi saw two males and the
female he had seen earlier come out of the front door of the
cabin and run toward the "rocky outcropping" a defensive position
near the front of the cabin.(654) (G.J.)
(G.J.)(655)(656)(657)
Horiuchi saw the three people run behind the "birthing shed,"a
wooden building close to the cabin and disappear from his view.
Horiuchi focused on the person he believed to be Harris because
he was carrying a "shoulder weapon" at "port arms."(658)
(G.J.)(659)
and because the person was not making a threatening movement,(660)
(G.J.)(661)
Jerome Barker at the Sierra 3 position saw two adult males and
one adult female, carrying "long barreled weapons," move from the
cabin toward the birthing shed.(662) He perceived their
movements as rapid, evasive, and indicative of a confrontational
posture.(663) He lost sight of the second male who exited the
cabin, and he saw the other male and the female move toward his
position and the Sierra 4 position. He lost sight of these people
as they entered a ravine, less than two hundred yards from
Barker's position. Barker prepared to "encounter" the two
individuals whom he considered a threat.(664)
Horiuchi continued to concentrate on the person who had rounded
the rear corner of the birthing shed. As he came back into view,
Horiuchi believed that the man was the armed individual he had
initially seen running from the cabin.(665) The man picked up
a stick and appeared to be poking at the ground and looking up
above and to the right of Horiuchi where Horiuchi sensed that the
helicopter was flying.(666)
(GARRITY)(667)
When the person reappeared at the side of the shed from which he
had disappeared, he held his weapon at high port and scanned
above and behind Horiuchi's position. He seemed to be looking for
the helicopter. The person was "watching the helicopter, and at
times he would kind of bring his weapon up and (Horiuchi)
perceiv(ed) that perhaps he was trying to get a shot off."(668)
(669)(GARRITY)
Horiuchi fired one shot, just as the man suddenly moved along the
side of the birthing shed out of sight.
When Horiuchi shot, the man was at the corner of the shed, with
his back toward Horiuchi.
(GARRITY)(670)
Horiuchi "assumed that he was raising (his arm) to grab
inside the building to spin himself around the corner."(671)
Horiuchi acknowledged that when he shot he was aiming at the
man's back.(672)
Horiuchi assumed that he had hit the man or the edge of the
birthing shed.(673) After he fired, the person "continued to
move around the corner of the birthing shed, so -- without any
effect, it didn't seem like he was hit at all, so that's why my
assumption was that I had missed."(674)
Horiuchi assumed that the person at whom he had fired was Kevin
Harris.(675) In fact, Horiuchi shot Randy Reaver. After the
first shot, Horiuchi decided that he would shoot at this person
again, if he got the opportunity.(676)
Harris has said that he, Randy Weaver, and Sara Weaver left the
cabin with rifles and that he went to the rocks near the cabin to
retrieve a battery, while Randy and Sara Weaver went to the
birthing shed to see Sammy Weaver's body. After hearing a shot,
Harris ran to the birthing shed where Weaver exclaimed, "I'm
shot."(677)
Randy Weaver stated:
Kevin, Sara and I (Randy) left the house to check the North
perimeter. We didn't see anything so I (R) was going into the
guest shed where Sam was to see him one last time. As I (R)
reached up to unlatch the door I was shot from the rear and hit
in the upper right arm."(678)
(2) The Second Shot
According to Horiuchi, after ten to twenty seconds, the man he
thought he had initially shot at came back into his view, joined
by the other male and the female. Horiuchi observed the male and
female run toward the cabin trailed by nine steps by the man
Horiuchi thought had been the target of his first shot.
The first two people disappeared behind the open door, and,
Horiuchi assumed, went inside the cabin. Horiuchi had determined
after the first shot that he "was going to shoot at that
individual again" because:
I believed he was the same individual that had attempted to shoot
. . . at the helicopter, and therefore, I assumed that he was
moving back to the house to get a more protected location inside
the house and I didn't want him back in the house. . . .
(K)nowing that the children were inside the house, that would
have been my last opportunity to shoot him before he got into the
house because I probably would not have shot at anyone inside the
house for fear of shooting the children.....(H)e would have been
more protected inside the house and he could have shot at either
me or my fellow agents or the helicopter still flying around at
that location, probably knowing that we couldn't shoot back in
there without harming some of the children.(679)
Horiuchi fired as Harris approached the porch. Harris was
reaching out with his left hand toward the door and taking a last
step to the doorway, appearing to be holding the door open or
moving someone out of the way.
(GARRITY)(680)
Horiuchi was leading the running target, that is, aiming slightly
in front of him as he ran, so that the target subject would, in
effect, run into the bullet. The cross hairs of the rifle's scope
were on the edge of the door or just on the wood portion of the
door.(681) The door was fully open, and Horiuchi could see the
entire front face of the door, except for the bottom portion. At
the time of the shot, the target had his weapon in his right hand
and was reaching out with his left hand.(682)
Horiuchi saw the individual flinch as if he had been hit and
disappear into the doorway. The man reached like he had been
"punched" or hit on the side; he fell behind the door.(683)
Afterwards, Horiuchi heard a female scream for about 30
seconds.(684) He assumed that the female was screaming because Harris
had been hit.(685) In fact, Vicki Weaver had been fatally shot.
Horiuchi assumed that the individuals preceding the person at
whom he shot had gone inside the cabin. He has testified that he
did not see anyone standing behind the door when he shot and that
he did not intend to shoot Vicki Weaver.(686)
. . . . . . .
FOOTNOTES
634. FD-302 Interview of Frank Constanza, September 10, 1992,
at 1.
635. Glenn Sworn Statement, January 12, 1994 at 22-23.
636. FD-302 Interview of Luke Adler, January 7, 1994, at 1. 637.
Shooting Incident Report, September 30, 1992, at 2.
638. HRT Sniper Log, August 22, 1992, at 1. Unless otherwise
noted, times specified in that log are Pacific Daylight Savings
Time.
639. Upon arrival at this position, Horiuchi took out his rain
jacket because it had begun to rain. He positioned his rifle
through the limbs of a small pine tree. His weapon was a
Remington, Model 700 rifle which has a fixed Unertyl, ten power
telescope sight. The weapon fires a .308 calibre, match grade 168
grain bullet.
640. (G.J.) Horiuchi Trial Testimony, June 3, 1993, at 52-57.
641. (G.J.)
642. (GARRITY)
At trial, he said that the female stayed outside the cabin "two of
three minutes, I'm not sure." Horiuchi Trial Testimony, June 3, 1993,
at 63-64.
643. id. at 64
644. id. at 64-65
645. id. at 66.
646. id. at 66-67
647. Sworn Statement of Christopher Whitcomb, December 7, 1993,
at 6.
648. HRT Sniper Log, August 22, 1992, 5:57 p.m., at 1.
649. Smith FD-302, November 24, 1993, at 7; and Rogers Trial
Testimony, June 2, 1993, at 60-61.
650. FD-302 Interview of John Haynes, October 20, 1993, at 7.
651. Smith Sworn Statement, January 6, 1994, at 7-8; Rogers Trial
Testimony, June 2, 1993, at 63-65.
652. Constanza FD-302, October 22, 1993, at 2.
653. Horiuchi Trial Testimony, June 3, 1993, at 67-69.
654. id. at 81. Horiuchi assumed that the female was the same
person he had seen earlier because of her small stature. id.
at 74.
655. (G.J.)
656. (G.J.)
657. Horiuchi Trial Testimony, June 3, 1993, at 71-72.
658. "Port arms" is a military term which describes a weapon
being carried across the chest with both hands in a slanting
direction with the barrel near the left shoulder.
659. (G.J.)
660. Horiuchi Trial Testimony, June 3, 1993, at 86-87.
661. (G.J.)
662. Barker Sworn Statement, August 31, 1992, at 3.
663. id., November 12, 1993, at 2.
664. id., August 31, 1992, at 3. Barker alerted Curran, who was
preparing his position at Sierra 3 and did not observe any of
this activity. Monroe, who was stationed with Horiuchi, did not
see anyone leave the cabin until Horiuchi alerted him because
Monroe's view was obstructed by brush. Monroe watched three
persons run from the cabin with weapons at port arms or other
positions of readiness. Monroe Sworn Statement, December 17,
1993, at 6-7. Whitcomb and Love at the Sierra 1 position and
Wenger at Sierra 2 observed three armed persons move from the
front of the cabin to rock outcropping. Tilton, the third
sniper/observer at Sierra 1, heard radio transmissions that
people were outside the cabin, but did not observe anyone. See
Tilton Sworn Statement, August 31, 1992, at 3. Warren Bamford,
also at Sierra 2, did not observe anyone near the Weaver cabin
because he was preparing his position. See Bramford Sworn
Statement, October 25, 1993, at 6.
665. Horiuchi Trail Testimony, June 3, 1993, at 81-82.
666. id. at 82.
667. (GARRITY)
668. Horiuchi Trial Testimony, June 3, 1993, at 88, 90.
669. id. at 93; (GARRITY) Horiuchi conceded that, although it may
have not been effective, he could have yelled to Weaver and
Harris to drop their weapons before he fired the first shot.
Horiuchi Trial Testimony, June 3, 1993, at 169.
670. (GARRITY)
671. Horiuchi Trial Testimony, June 4, 1993, at 40-41. 672. id.
at 42.
673. id., June 3, 1993, at 93.
674. id. at 94. However, Horiuchi acknowledged that he know that
the man had been hit "in the back up towards the fleshy part of
his arm." id. at 37.
675. id. at 103.
676. id., June 3, 1993, at 90-94.
677. FD-302 Interview of Kevin Harris, September 1, 1992, at 3-4.
The only other sniper who saw the birthing shed activity was
Monroe, Horiuchi's partner. Monroe saw an adult male, who he
believed was Kevin Harris, armed with a rifle. The person
appeared to be using the birthing shed as cover, while
maneuvering to take a shot. Monroe Sworn Statement, November 17,
1993, at 7. None of the sniper/observers saw a female by the
birthing shed.
678. Letter dated August 26, 1992, signed "Randall C. Weaver,
Kevin Harris, Sara Weaver, Rachel and Elisheba," at 5 (Appendix
at 27).
679. Horiuchi Trial Testimony, June 3, 1993, at 110-11.
680. (GARRITY)
681. Horiuchi Trial Testimony, June 3, 1993 at 113 (GARRITY)
682. id., June 3, 1993, at 111-15. Horiuchi testified that he
could not see through the window in the door.
683. id. at 126.
684. id.
685. id. at 127
686. Horiuchi Trial Testimony, June 4, 1993, at 62. Horiuchi also
testified that at the time Harris was reentering the cabin
Horiuchi "knew that (Harris) was trying to move somebody out of
the way when (he) shot, and that (Horiuchi) knew somebody was
behind (the) door." Horiuchi emphasized that, "(he) wasn't
shooting at the individual behind the door, (he) was shooting at
Mr. Harris." id. at 61-62.
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