Jahn - AUSA Kearny - Defense Ballesteros - ATF SA Testimony from Davidian Trial in San Antonio, Texas Testimony leading up to "First Shot" Ballesteros - Direct (Mr. Jahn) 1285 1 what you were doing when you first heard what you believed to be 2 a gunshot? 3 A As I exited the trailer, somewhere in this area 4 (indicating), I began to hear a small caliber in the distance, 5 several pops, if you will, continuing on through the -- until I 6 got to the front door. 7 Q Okay. Now, you gestured toward the ground. You showed 8 your pointer a short distance from the back of the trailer and 9 then you gestured toward the gate on the right-hand side, is 10 that correct? 11 A That's correct. 12 Q All right. And you say you heard several pops in the 13 distance. Could you -- could you place a direction to the pops 14 that you heard that morning? 15 A It was to my left as I was coming out. It must have been 16 somewhere in this area (indicating), I couldn't tell. I wasn't 17 looking for it. Ballesteros talks about dog team Ballesteros - Direct (Mr. Jahn) 1287 5 Q You indicated, though, that -- that you had at least two 6 other individuals who preceded you out of the -- out of the 7 trailer? 8 A That's correct. 9 Q And what was going to be their duty? 10 A They were assigned to hold several dogs at bay. Right in 11 this area here (indicating) is what I call "the dog pit," dog 12 pens. And we -- our information was, that they had several 13 guard dogs. 14 Q Okay. And had -- had the briefing, then, mentioned the 15 prospect that, if necessary, dog -- guard dogs might be shot 16 that day? 17 A Yes. Ballesteros - Direct (Mr. Jahn) 1288 4 Q All right. And what -- you indicated before that you had 5 come up to the gate on the -- on the right-hand side of the 6 compound and you had entered the yard to the right-hand side of 7 the front door and you were approaching the front door. What 8 what did you see and do? 9 A I observed from this point (indicating) to the front door 10 an individual I have -- I had observed photographs of in the 11 past, whom I know to be Vernon Howell. 12 Q Okay. And what was that person doing? 13 A He was standing in the doorway. The door was -- was open 14 maybe, you know, one to two feet, and he was standing in the 15 doorway looking in my direction. Ballesteros - Direct (Mr. Jahn) 1289 8 Q All right. And what was -- what did you see? What was he 9 doing? Where was his hands? What was he doing? 10 A His hands were on the door. I guess his right hand would 11 be like on the doorjamb at midpoint between the doors, and his 12 left hand seemed to be holding the other door open. 13 Q Okay. You just made a gesture with your arm, indicating 14 about shoulder height. Would it be shoulder height, as far as 15 both-hands were concerned? 16 A That's correct. 17 Q And you could see both hands, is that correct? 18 A That's correct. In following Ballesteros testifies of seeing bullets COMING OUT THROUGH WOODEN DOORS - remember WOODEN DOORS Ballesteros - Direct (Mr. Jahn) 1293 10 Q All right. What happened next? 11 A I reached the front door right after it had been shut, and 12 I moved towards the left-hand side, almost just to the left of 13 the center when I started observing what I believe were 14 gunshots. 15 Q All right. Now; what did -- what did you observe 16 A I saw -- 17 Q -- that made you believe they were gunshots? 18 A Holes and splintering wood just right in front of me. 19 Q Okay. And the holes were appearing where? 20 A To my right and across the front of the doorway. 21 Q Okay. in the doorway itself? 22 A In the doors, on the doors. 23 Q Okay. On the doors themselves. Okay. Did you see it 24 appear in the walls? 25 A No. I was concentrating on the door. Ballesteros - Direct (Mr. Jahn) 1300 6 Q You indicated that you had heard what you perceived to be 7 or believed to be 50-caliber gunfire? 8 A Yes. 9 Q Can you tell the jury the circumstances under which you 10 heard or saw what you believed to be 50-caliber gunfire and what 11 evidence you saw of that? 12 A As I was laying down, you could hear very clearly a large 13 caliber. It's loud cracks going across the front. Again, I was 14 only looking directly, you know, down in front of me in front. 15 I could not see much of anything, as far as where they were 16 landing -- 17 Q Okay. Were they -- 18 A -- but you could hear it. 19 Q Were they single shots or were they groups of shots, or 20 what were you hearing? 21 A It was a group of each time, maybe anywhere from five to 22 eight bursts. Note: 50 caliber Barrett rifles hold xx rounds but do not fire in burst mode. Under cross examination Ballesteros tells of interview with Texas Rangers Ballesteros - Cross (Mr. Kearney) 1312 6 Q But you did interview with the Texas Rangers, is that 7 right? 8 A Yes, I did. 9 Q Okay. And that was about ten days after the incident, 10 isn't that right? 11 A March 10th. 12 Q And did they do a thorough interview? 13 A Yes, they did. Tells Rangers about "First Shots" Ballesteros - Cross (Mr. Kearney) 1313 1 A They asked me for a statement and I gave them a statement. 2 Q Did they allow you to make a full and complete statement to 3 them? 4 A They allowed me to, yes. 5 Q And in that statement that you made to them, they asked you 6 about what happened that day, didn't they? 7 A That's correct. 8 Q Have you had occasion to review that statement before 9 testifying here today? 10 A Yes, sir, I have. 11 Q Matter of fact, they tape recorded it, didn't they? 12 A That's correct. 13 Q And then it was reduced down to writing after that, is that 14 right? 15 A That is correct. 16 Q And you had a chance to review it? 17 A Yes, I did. 18 Q And in the statement, you described to them when you first 19 heard some gunshots, isn't that right? 20 A That's correct. Ballesteros - Cross (Mr. Kearney) 1314 15 Q And you also told them that you assumed, at that point in 16 time, that it was your other team members firing, shooting at 17 the dogs, isn't that right? 18 A That is what I stated. 19 Q Okay. And that was ten days after this happened? 20 A That is correct. Ballesteros - Cross (Mr. Kearney) 1315 10 Q And now you say that you heard gunfire as soon as you got 11 out of the trailer, is that right? 12 A That's correct. 13 Q And you didn't mention to the jury, like you told the 14 rangers, that you thought it was someone with the dog team 15 shooting the dogs, did you? 16 A No, I did not. He just admits he didn't tell same story under direct examination as he did in Ranger interview. Ballesteros - Cross (Mr. Kearney) 1317 9 Q Okay. Now, you didn't tell the rangers anything about 10 saying to Mr. Howell that you had a search warrant, did you? 11 A I did not. Warrant, what warrant? Oh, BTW, he gave statement to Waco PD, too. Ballesteros - Cross (Mr. Kearney) 1319 3 Q Well, for -- for ten days there after an incident of this 4 magnitude, nobody tried -- in authority, I'm talking about law 5 enforcement authority -- tried to interview you about this, is 6 that what you're saying? 7 A Initially, sometime when I was first at the hospital, the 8 Waco Police Department, Homicide Division, came in and asked me 9 if I could give them a brief statement. And I told them I 10 wasn't in -- I could give them a brief statement, but I would 11 much prefer to get treated first. And I gave -- 12 Q Okay. Did you give -- 13 A I gave them a brief statement. 14 Q Okay. Other than the Waco Police Department, did anyone in 15 authority -- Texas Rangers, U.S. Attorney's Office, Treasury 16 Department, ATF -- talk to you at all during that ten-day period 17 of time? 18 A No. So, up until now, he hadn't been prepped on the "Official" story Now begins cross on "Peaceful Entry" or "Plans, what plans?" Ballesteros - Cross (Mr. Kearney) 1324 I Q And that you were supposed to get up on the porch and try 2 to get in the door, and they were going to help you get in the 3 door, is that right? 4 A That's correct. 5 Q And as a matter of fact, there -- when you rehearsed out 6 there and practiced for several days, there never was any plan 7 of trying to gain a peaceful entry into the building was there? 8 MR. JAHN: Objection, Your Honor. This has been -- we 9 resolved this or we thought we resolved it in reference to the 10 Motion In Limine. 11 THE COURT: Approach the bench, Counsel. 12 (Bench conference - on the record.) 13 MR. KEARNEY: My understanding, that's what you 14 clearly said we could do, that's the one you overruled. 15 THE COURT: That's my memory, too. What are you 16 referring to, Mr. Jahn? 17 MR. JAHN: I was -- well, if he talks about the plan 18 itself, Your Honor, alternate means. I was under the impression 19 we were talking about luring him off the grounds and arresting 20 him and things like that was what the Court allowed. At this 21 particular point, since he's asked the question, I will go ahead 22 and let him answer it, but otherwise, the damage is just as bad 23 if the Court sustains my objection. I'll withdraw my objection, 24 but I thought that the Court had ruled that we were not to go 25 into the plans, the training, the intentions and the like as far Ballesteros - Cross (Mr. Kearney) 1329 10 Q Well, as a matter of fact, there was no plan, was there, to 11 -- there was no plan to try to peacefully request admission into 12 the building, was there? 13 A I didn't know if there was or not, a plan for that. We 14 were instructed to make entry into that front door. And by -- Ballesteros - Cross (Mr. Kearney) 1330 3 Q Well, you never even rehearsed the option or alternative of 4 making a peaceful entry in there, did you? 5 MR. JARN: Your Honor, we're now back in the area of 6 the Motion In Limine. It's contrary to what the discussion was 7 at the bench, and we object to the question. 8 THE COURT: overrule the objection. 9 BY MR. KEARNEY: 10 Q You never even rehearsed making a peaceful entry in there, 11 did you? 12 A No, we did not. 13 Q Never even practiced it? 14 A No, we did not. No, let's recap.... Ballesteros has told Texas Rangers dog team shot first. Recants at trial and says thats wrong. Admits he said nothing to Koresh/Howell about a warrant, search, arrest, whatever... Admits he talk to Rangers and Waco Police Department March 10 - 10 days after raid... Then, months later, after "interviews" with AUSA Jahn, he says his initial memory was wrong. Sure!! And lastly, plans, what plans? Only known copy is the one in Treasury Department report and Treasury alledges SAC Sarbyn has altered it. But, more important, Ballesteros admits no thought of PEACEFUL entry ever crossed their minds. Just run-n-gun all the way.