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Fbi Crime Lab Doj Ig Report 1997

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USDOJ/OIG Special Report

The FBI Laboratory: An Investigation into Laboratory Practices
and Alleged Misconduct in Explosives-Related and Other Cases (April
1997)
Table of Contents
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PART ONE: EXECUTIVE SUMMARY

PART TWO: BACKGROUND TO THE OIG INVESTIGATION
I. The FBI Laboratory
A. Organization of the Laboratory
B. The Laboratory's Quality Assurance Plan and Accreditation
C. The Hiring of Non-Agent Examiners
D. Changing Legal Standards for Admissibility and Disclosure
II. Whitehurst and His Allegations
III. The OIG Investigation

PART THREE: ANALYSIS OF PARTICULAR MATTERS
SECTION A: ALLEGATIONS CONCERNING TERRY RUDOLPH
I. Introduction
II. The Psinakis Case
A. Factual Background
B. Analysis of Rudolph's Conduct in Psinakis
III. The Laboratory's 1989 Reviews of Rudolph's Casework
A. Factual Background
B. Analysis of the 1989 Reviews
IV. The FBI OPR Investigation in 1991-92
V. The 1992 Corby Review
A. Factual Background
B. Analysis of the 1992 Corby Review
VI. The 1995 Corby Review
A. Factual Background
B. Analysis of Corby's 1995 Review
VII. Conclusion
A. Rudolph
B. Management

SECTION B: THE VANPAC CASE
I. Introduction
II. Factual Background
III. Analysis of the Whitehurst Allegations
A. The Alleged Violation of Protocols
B. The Identification of Red Dot Smokeless Powder
C. Thurman's Testimony About the Explosives
D. Claims That Thurman Testified Outside His Expertise
E. Claims That Martz Misled the Jury About His Qualifications
F. Claims That Martz Improperly Testified About Smokeless
Powders Found in the Devices
G. Claims That Martz Improperly Analyzed Primers
H. Testimony by Martz About the Search at Moody's House
I. The Conduct of the Prosecutors

IV. Conclusion

SECTION C: WORLD TRADE CENTER BOMBING
I. Introduction
II. Testimony of SSA David Williams in the Salameh Trial
A. FBI's Manufacture of Urea Nitrate
B. Williams' Opinions on Defendants' Capacity to Manufacture
Urea Nitrate and on the Explosive Used in the Bombing
C. Williams' Testimony Regarding the Attempt to Modify
Whitehurst's Dictation
D. Other Allegations
III. Pre-Trial Issues
A. Specimen Q23
B. Specimen Q65
C. Other Matters Involving Williams
D. Allegation Concerning SSA Haldimann
IV. Conclusion

SECTION D: THE BUSH ASSASSINATION ATTEMPT
I. Introduction
II. Factual Background
III. Analysis of Whitehurst's Allegations
A. The Laboratory Reports
B. Verbal Reports by Ronay
C. The Missile Strike
IV. Conclusion

SECTION E: AVIANCA BOMBING
I. Introduction
II. Factual Background
A. The Crime Scene
B. The Laboratory Analysis
C. The AConfessor
D. The Whitehurst Memorandum
E. The Trials
III. Analysis
A. Hahn's Testimony
B. Whitehurst's Conduct
IV. Conclusion
A. Hahn
B. Whitehurst
C. Kearney
D. Corby

SECTION F: ROGER MARTZ'S TESTIMONY IN O.J. SIMPSON CASE
I. Introduction
II. Factual Background
III. Analysis of Whitehurst's Allegations
A. The Claim that Martz Committed Perjury by Testifying
that He Authored the Testing Procedures
B. The Claim that Martz Misled the Court Concerning the
FSRU's Validation Study and Other Matters
C. The Claims That Martz Misled the Defense Concerning
His Erasure of Digital Data and Improperly Erased Digital Data
D. Criticism of Martz's Presentation
IV. Conclusion

SECTION G: OKLAHOMA CITY BOMBING
I. Introduction
II. William's Report
A. Velocity of Detonation
B. Identification of the Explosive
C. Weight of the Explosive
D. Other Conclusions Concerning the Explosive Device
E. Bases for Conclusions

F. Restatement of AE Dictation
G. Other Allegations
III. Thurman's Review of Williams' Report
A. Specific Items in the Report
B. Thurman's Method of Review
IV. Martz's Examination of Evidence
V. Conclusion

SECTION H: OTHER MATTERS
SECTION H1: YU KIKUMURA
I. Introduction
II. Factual Background
III. Analysis of Whitehurst's Allegations
A. The Claim that Thurman Misled the Jury or Deprived
Kikumura of a Fair Trial
B. The Claim that Thurman Improperly Failed to Disclose
Aspects of His Education or Training
C. Claims that Thurman Improperly Testified Outside His
Expertise
D. Claims that Thurman Improperly Testified about the Possible
Use of Other Materials in Explosive Devices
E. Other Aspects of Thurman's Testimony
IV. Conclusion

SECTION H2: NORFOLK TANK FARMS
I. Introduction
II. Factual Background
III. Analysis of Whitehurst's Allegations
IV. Conclusion

SECTION H3: MELISSA BRANNEN
I. Introduction
II. Factual Background
III. Analysis of Whitehurst's Allegations
IV. Conclusion

SECTION H4: PAOLO BORSELLINO
I. Introduction
II. Factual Background
III. Analysis of Whitehurst's Allegations
IV. Conclusion

SECTION H5: GINO NEGRETTI
I. Introduction
II. Factual Background
III. Analysis of Whitehurst's Allegations
IV. Conclusion

SECTION H6: CONLON CASE
I. Introduction
II. Factual Background
III. Analysis of Whitehurst's Allegations
IV. Conclusion

SECTION H7: JUDGE JOHN SHAW
I. Introduction
II. Factual Background
III. Analysis of Whitehurst's Allegations
IV. Conclusion

SECTION H8: GHOST SHADOW GANG
I. Introduction
II. Factual Background
III. Analysis of Whitehurst's Allegations
IV. Conclusion

SECTION H9: THE UNABOM ARTICLE
I. Introduction
II. Factual Background
III. Discussion
A. Publication of the Article
B. The Allegation that Mohnal and Ronay Rebuffed Burmeister
C. The Laboratory's 1995 Response to Burmeister's Concerns
IV. Conclusion

SECTION H10: THURMAN'S ALLEGED ALTERATION OF DICTATION
I. Introduction
II. Alteration of Whitehurst's Dictation
A. Background
B. Analysis
III. Burmeister's Allegation
IV. Conclusion

SECTION H11: HIGGINS' ALLEGED ALTERATION OF DICTATION
I. Introduction
II. Factual Background
III. Analysis of Laboratory Reports
A. Category One
B. Category Two
C. Category Three
D. The Remaining 21 Laboratory Reports
IV. Conclusion

SECTION H11: CHART

SECTION H12: TOBIN ALLEGATIONS
I. Introduction
II. The Reporting of Metals-Related Examinations
A. Improper Wire Gauging
B. The La Familia Case
C. The Peter Mauchlin Case
III. Alcee Hastings Matter
A. The Background to the Investigating Committee Proceedings
B. Malone's Testimony before the Investi's Testimony
D. Analysis
IV. Conclusion

SECTION H13: GEORGE TREPAL

PART FOUR: WHITEHURST'S ALLEGATIONS OF RETALIATION
I. Introduction
II. Analysis of Whitehurst's Allegations
A. The Claim that the FBI Improperly Punished Whitehurst for
His Conduct in the Psinakis Case
B. The Claim that the FBI Ignored and Covered Up
Whitehurst's Allegations Concerning Software Theft and Assault
C. Referral for Psychiatric Examination and Counseling
D. The Claim that the FBI Improperly Investigated Whitehurst
for Disclosure of Confidential Information

E. The Claim that the FBI Improperly Disclosed Henthorn
Material Concerning Whitehurst
F. The Claim that the FBI Punished Whitehurst by Reassigning
Him to the Paints and Polymers Program
G. Other Evidence of Retaliatory Intent
III. Conclusion

PART FIVE: FINDINGS AND RECOMMENDATIONS CONCERNING INDIVIDUALS
I. Individuals Central to Whitehurst's Allegations or Whose Conduct
is Criticized in this Report
A. Terry Rudolph
B. Roger Martz
C. J. Thomas Thurman
D. David Williams
E. Richard Hahn
F. Robert Heckman
G. Wallace Higgins
H. Alan R. Jordan
I. Michael Malone
J. J. Christopher Ronay
K. Robert Webb
II. Laboratory Management
A. Charles Calfee
B. Kenneth Nimmich
C. James Kearney
D. John Hicks
E. Alan T. Robillard
III. Other Individuals
A. Roger Asbury
B. Edward Bender
C. Louis J. Freeh
D. Donald Haldimann
E. Ronald Kelly
F. Lynn Lasswell
G. Richard Laycock
H. Thomas Mohnal
I. Bruce McCord
J. Mark Olson
K. Howard Shapiro
IV. FBI OPR and FBI OGC
V. Frederic Whitehurst

PART SIX: RECOMMENDATIONS FOR ENHANCING QUALITY IN THE LABORATORY
I. ASCLD/LAB Accreditation and External Review
II. Restructuring the Explosives Unit
III. Principal and Auxiliary Examiners
IV. Report Preparation
V. Adequate Peer Review
VI. Case Documentation
VII. Record Retention
VIII. Examiner Training and Qualification
IX. Examiner Testimony
X. Protocols
XI. Evidence Handling
XII. The Role of Management

PART SEVEN: SUMMARY OF OIG RECOMMENDATIONS FOR THE FBI LABORATORY
I. ASCLD/LAB Accreditation and External Review
II. Restructuring the Explosives Unit
III. Principal and Auxiliary Examiners
IV. Report Preparation
V. Adequate Peer Review
VI. Case Documentation
VII. Record Retention
VIII. Examiner Training and Qualification
IX. Examiner Testimony
X. Protocols
XI. Evidence Handling
XII. The Role of Management

PART EIGHT: CONCLUSION

The following items are not available in this hypertext version:
ATTACHMENT A - Glossary
ATTACHMENT B - 1996 and 1997 FBI Laboratory Division Organizational Charts
ATTACHMENT C - A Primer on Explosives and Velocity of Detonation

EXECUTIVE SUMMARY

This investigation by the Department of Justice Office of the Inspector General
(OIG) concerned allegations of wrongdoing and improper practices within
certain sections of the Federal Bureau of Investigation (FBI) Laboratory. Those
allegations involved some of the most significant prosecutions in the recent
history of the Department of Justice, including the World Trade Center
bombing, the Oklahoma City bombing, and the mail bomb assassination of
U.S. Circuit Judge Robert Vance (which was referred to within the FBI as the
VANPAC case). The allegations implicated fundamental aspects of law
enforcement: the reliability of the procedures employed by the FBI Laboratory
to analyze evidence, the integrity of the persons engaging in that analysis, and
the trustworthiness of the testimony by FBI Laboratory examiners. The
allegations were brought to the OIG's attention by Supervisory Special Agent
Frederic Whitehurst, a Ph.D. scientist employed in the FBI Laboratory. We also
investigated problems that we ourselves identified in the course of our
investigation, as well as information brought to our attention by other
employees in the Laboratory.

The investigation spanned more than eighteen months and addressed a very
large number of allegations. Most of Whitehurst's allegations were not
substantiated; some important ones were. Our investigation identified policies
and practices in need of substantial change. Since the allegations involved
incidents that occurred over nearly a decade, some of those policies had already
been changed by the FBI or were in the process of being changed before the
draft report was completed. In a number of key instances, we found problems
that Whitehurst had not raised. We also saw examples of superb work and
encountered Laboratory personnel dedicated to the highest traditions of
forensic science. But we also found some Laboratory supervisors and
examiners whose performance merits critical comment, and raises serious
questions about whether they should continue in their current roles within the
Laboratory. Accordingly, in addition to general recommendations we made
about Laboratory practices and procedures, we recommended that certain
supervisors and examiners be reassigned from their current positions.

This investigation and our findings primarily concerned three units of the FBI
Laboratory -- the Explosives Unit (EU), the Materials Analysis Unit (MAU),
and the Chemistry-Toxicology Unit (CTU), all of which were in the Scientific
Analysis Section (SAS), one of five sections of the Laboratory. Our findings
and conclusions regarding certain cases in those units should not be imputed to
other cases within those units, nor to other units in the SAS or other sections of
the Laboratory that we did not investigate.

The next section of this Executive Summary provides an overview of our
principal findings and recommendations. The Summary then generally
corresponds to the organization of the Report. Section II describes the OIG
investigation (Part Two of the Report). Section III summarizes the significant
cases that are treated in detail (Part Three, Sections A-G of the Report). Section
IV sketches the many other matters investigated (Part Three, Sections H1-H13
of the Report). Section V describes our findings and conclusions on
Whitehurst's allegations of retaliation (Part Four of the Report). Section VI
describes our findings and recommendations with respect to the conduct and
performance of particular individuals (Part Five of the Report). Section VII
summarizes our recommendations regarding general Laboratory practices and
procedures (Parts Six and Seven of the Report).

I. Principal Findings and Recommendations

A. Findings Regarding Alleged Misconduct And
Performance Deficiencies

We did not substantiate the vast majority of the hundreds of allegations made
by Whitehurst, including the many instances in which he alleged that
Laboratory examiners had committed perjury or fabricated evidence. We
found, however, significant instances of testimonial errors, substandard
analytical work, and deficient practices. Those findings with respect to
individual cases appear in Section III of this Executive Summary and are

treated in detail in Part Three of the Report. The types of problems we found
included:

o

Scientifically Flawed Testimony in the Psinakis, World Trade
Center, Avianca, and Trepal cases.

o

Inaccurate Testimony by an EU examiner in the World Trade
Center case, by a former Laboratory examiner (who is still an FBI
agent) in a hearing conducted by the judicial committee of the
Judicial Council of the Eleventh Circuit regarding then-Judge
Alcee Hastings, and by the CTU Chief in the Trepal case.

o

Testimony Beyond the Examiner's Expertise in the World Trade
Center, Avianca, and Hastings cases.

o

Improper Preparation of Laboratory Reports by three EU
examiners who altered, omitted, or improperly supplemented
some of Whitehurst's internal reports (dictations ) as they were
being compiled into an official report of the Laboratory. A former
EU Chief failed to substantively review all of the reports in his
unit, authorized EU examiners to modify Whitehurst's dictations
when incorporating them into EU reports, and fostered a
permissive attitude toward changes to Whitehurst's dictations.

o

Insufficient Documentation of Test Results by the examiner who
had performed work on hundreds of cases, including Psinakis and
the UNABOM investigation, and by the CTU Chief.

o

Scientifically Flawed Reports in the VANPAC and Oklahoma
City cases, and in numerous cases by the former MAU examiner

who worked on Psinakis, and in a few instances by an EU
examiner who altered Whitehurst's reports.

o

Inadequate Record Management and Retention System by the
Laboratory.

o

Failures by Management to resolve serious and credible
allegations of incompetence lodged against the examiner who
worked on the Psinakis case; to review properly the EU report in
the Oklahoma City case; to resolve scientific disagreements
among Laboratory examiners in three cases, including Avianca; to
establish and enforce validated procedures and protocols that
might have avoided problems in examiner reports in the Psinakis
and VANPAC cases; and to making a commitment to pursuing
accreditation by the American Society of Crime Laboratory
Directors/Laboratory Accreditation Board before 1994.

o

A Flawed Staffing Structure of the Explosives Unit that should be
reconfigured so that examiners possess requisite scientific
qualifications.

B. Findings and Recommendations Concerning Individuals

The OIG investigation exonerated most of the persons named in Whitehurst's
allegations. Regarding some personnel, however, we criticized certain practices
and performances in particular cases and recommended reassignments from
their current positions and other actions. Our principal recommendations
included:

o

Because we recommended that the EU be restructured so that its
unit chief and examiners have scientific backgrounds, EU Chief J.
Thomas Thurman and all non-scientist EU examiners should be
reassigned outside the Laboratory when the restructuring is
accomplished. In the interim, the FBI should assess whether
Thurman should continue to hold a supervisory position.

o

CTU Chief Roger Martz should not hold a supervisory position in
the Laboratory, and the FBI should assess whether he should
continue to serve as a Laboratory examiner.

o

EU examiner David Williams, who worked on the World Trade
Center and Oklahoma City cases, should be reassigned outside the
Laboratory.

o

The FBI should assess what disciplinary action is now appropriate
for Michael Malone, the former Laboratory examiner who
testified in the Hastings hearing.

o

We concluded that Frederic Whitehurst cannot effectively
function within the Laboratory and suggested that the FBI
consider what role, if any, he can usefully serve in other
components of the FBI. In making that determination, the FBI and
the Department of Justice must weigh the significant contribution
he has made by raising issues that needed to be addressed within
the Laboratory against (1) the harm he has caused to innocent
persons by making many inflammatory but unsubstantiated
allegations, and (2) the doubts that exist about whether he has the
requisite common sense and judgment to serve as a forensic
examiner.

C. Recommendations Concerning Policies and Procedures

To enhance the quality of the Laboratory's forensic work, we made
recommendations in the following areas: (1) accreditation, (2) restructuring the
EU, (3) the roles of Laboratory examiners and resolutions of disputes, (4)
report preparation, (5) peer review, (6) case documentation, (7) record
retention, (8) examiner training and qualification, (9) examiner testimony, (10)
protocols, (11) evidence handling, and (12) the role of management. In
response to a draft of this Report, the FBI accepted full responsibility for the
failings we identified within the Laboratory. The FBI's response concurred with
nearly all of the OIG's recommendations and stated that the Laboratory has
implemented or is taking steps to implement them. The FBI's response to the
draft report is contained in an Appendix, along with our reply to specific points
raised in its response.

II. The OIG Investigation

The OIG investigation essentially occurred in two phases. The first phase,
lasting from 1994 to the summer of 1995, was limited in scope. As is detailed
in the Report, during that period, allegations by Whitehurst were the subject of
various reviews by the FBI Office of General Counsel (FBI OGC), the FBI
Office of Professional Responsibility (FBI OPR), and the FBI Laboratory itself
until mid-1995. The OIG's investigation in that period focused on Whitehurst's
contentions that his analytical reports had been substantively altered by an EU
examiner.

By the summer of 1995, after other scientists in the Laboratory confirmed
certain aspects of Whitehurst's allegations, it became clear that a more global,
comprehensive investigation was warranted. With the agreement of FBI
Director Louis Freeh, and the full cooperation of the FBI, the OIG undertook
such an investigation and retained an international panel of five scientific
experts to consult with the OIG. Those experts, whose combined experience
exceeds 100 years of work in forensic and national laboratories, have been
integrally involved in the process of interviewing witnesses, reviewing
documents, and writing this report. Four experienced prosecutors from United
States Attorneys' Offices and the Criminal Division were detailed to the OIG to

lead the investigation, and have provided considerable investigative expertise in
this matter.

From the autumn of 1995 to the present, the OIG team has conducted hundreds
of interviews, including re-interviews of key witnesses, and reviewed more
than 60,000 pages of documents and transcripts. Upon completion of a draft
report on January 21, 1997, the OIG solicited comments from the FBI and from
prosecutors (primarily in the United States Attorneys' Offices) and other
lawyers who handled the cases at issue to ensure that no factual errors were
inadvertently included. The responses themselves, as well as our replies, are
contained in a separate Appendix. In evaluating those responses, the OIG made
some revisions to the Report. After careful consideration, in most instances we
did not agree with requests to change the language in the draft report or our
findings, and have explained our reasoning either in the Report itself or in the
Appendix.

One general point about the responses bears highlighting in this summary. As
to cases in which we criticize the work of FBI Laboratory personnel, such as in
the World Trade Center and Avianca cases, the FBI and U.S. Attorneys have
responded by saying, in essence, that nothing in the Report should be read as
affecting the outcome of those cases. Our purpose has not been to determine
whether a defendant in any given case was improperly convicted of a crime; it
was to ascertain whether the performance of the Laboratory personnel met
general standards of conduct for forensic scientists and complied with policies
in the FBI Laboratory in effect at the time the work was performed. Our
findings of deficiencies in the work performed in cases should in no
circumstance be read as expressing a view as to whether that case should have
reached a different outcome. That role is properly performed by the
prosecutors, defense counsel, and judges who can assess the work of the FBI
Laboratory in the context of all of the evidence in the case. We, therefore,
concluded that it would be inappropriate for us to make any judgments as to
whether our findings will or should affect a particular case.

III. Significant Cases Treated in Detail

A. Allegations Concerning Agent Terry Rudolph
(Part Three, Section A of the Report)

From the time Frederic Whitehurst first joined the FBI Laboratory in 1986, he
repeatedly complained about the work practices of Agent Terry Rudolph, who
preceded Whitehurst as the Laboratory's senior examiner for the analysis of
explosives residue. Those complaints reached an apex with work Rudolph
performed in connection with the Psinakis case. After that case ended in an
acquittal, the Assistant United States Attorney (AUSA) who tried the case
wrote a letter to the FBI complaining that Rudolph's performance was deficient,
that the judge had nearly excluded his testimony, and that the defense had
seriously impeached his scientific work and conclusions relevant to that case.
That letter raised serious questions about certain Laboratory practices. For
example, it noted the apparent absence within the Laboratory at the time of
established protocols to determine when certain tests should be performed and
of peer review to confirm the sufficiency of the analysis conducted by the
Laboratory examiner.

Laboratory management responded to the AUSA's letter by directing that
Rudolph's case files be audited. In August 1989, an internal audit of some of
Rudolph's files found numerous shortcomings and recommended that an
extensive technical review be undertaken. That review was assigned to Roger
Martz, the chief of the Chemistry-Toxicology Unit (CTU). Martz reviewed 95
of Rudolph's files, concluded that Rudolph's analysis supported the results, and
reported finding no technical errors. Upon the completion of Martz's review,
the Laboratory determined that no further action concerning Rudolph was
necessary. That decision proved to be a significant error in judgment. Our
investigation showed that Martz's review was seriously deficient, that he failed
to engage in the type of technical review that would actually have assessed the
competence and sufficiency of the work purportedly performed by Rudolph,
and that Martz's written reporting led Laboratory managers to believe that there
were no problems with Rudolph's work or his files.

Because the Laboratory took no action against Rudolph, Whitehurst continued
to complain about Rudolph's sloppy work habits, and added charges that
Rudolph had perjured himself in a case, lied to an AUSA, abused annual leave,

and made racist remarks. Those allegations led to an FBI OPR investigation in
1991-1992. Although we did not find evidence of a deliberate effort to dismiss
or ignore Whitehurst's allegations -- as he has maintained -- we did find
significant deficiencies in the OPR investigation of this matter.

The OPR investigators lacked the technical expertise to review Whitehurst's
allegations concerning Rudolph's casework, so the Laboratory itself conducted
yet another review of Rudolph's case files, this time in 1992. James Corby, the
chief of the Materials Analysis Unit (MAU), performed that review. Corby
analyzed approximately 200 cases and found significant flaws, such as
Rudolph's failing to follow his own explosives residue protocol, to form
conclusions with a valid scientific basis, and to conduct necessary tests. Corby
recommended that Rudolph be disciplined and removed from doing any further
explosives work in the Laboratory. Corby's supervisor, Kenneth Nimmich
(chief of the Scientific Analysis Section (SAS) of the Laboratory), then directed
that Corby, Martz, and CTU examiner Lynn Lasswell engage in a panel review
of Rudolph's files to determine whether any errors needed to be brought to the
attention of any prosecutor or defense attorney. Lasswell analyzed 57 of the
200 case files and found serious deficiencies. We found no evidence, however,
that Martz conducted any review of Rudolph's files or otherwise assisted in this
effort.

Nimmich recommended to John Hicks, the Laboratory Director, that Rudolph
be severely reprimanded. Instead, Hicks decided to orally admonish Rudolph.
When Hicks delivered that punishment, however, he also gave Rudolph a check
for $500, which represented an incentive payment for recent work. The
monetary award meant that a decidedly mixed message was sent to Rudolph,
who reported to us that he was quite surprised by how leniently he had been
handled.

In 1993, Corby continued to express concern over the condition of Rudolph's
files and asked James Kearney (who had replaced Nimmich as the head of the
SAS) to raise the issue anew with Hicks. Hicks, however, decided that the
Rudolph matter had been adequately reviewed and took no action. In 1994,
Whitehurst's attorney complained in a letter to the FBI about Rudolph. The FBI
Office of General Counsel (FBI OGC) conducted an investigation, determining

that Rudolph's files were sloppy and that his [Rudolph's] conclusions are not
supported by appropriate documentation. The FBI OGC recommended a
comprehensive review, a recommendation not welcomed by the Laboratory
Division.

A year after that recommendation was made, in June 1995, Corby was directed
to review all cases in which Rudolph had worked as an examiner. Corby
completed his review before the end of that year, and found that nearly onequarter of Rudolph's files did not meet the administrative or technical
guidelines at the time the cases were worked. (Emphasis in original.) Rudolph
wrote a 200-page response in which he took issue with many of Corby's
conclusions. We did not attempt to replicate Corby's work, but our review
convinced us that his findings were generally correct.

Although our investigation did not reveal intentional misrepresentations by
Rudolph, we did find serious performance deficiencies in his work. As the
foregoing discussion of management efforts reveals, it took FBI management
nearly six years to perform the type of comprehensive review of Rudolph's files
that should have occurred in 1989 after Rudolph's performance in the Psinakis
case was so sharply criticized by the AUSA who handled that case. Former
Director Hicks was especially remiss for failing to respond adequately to the
mounting concerns about Rudolph's competence. CTU Chief Martz was
derelict in his technical review and misleading memorandum in 1989. The 1992
review largely failed as an effort to ascertain fully the true extent of the
deficiencies in Rudolph's files. Had Laboratory managers performed
responsibly, the Rudolph matter might have been appropriately resolved much
earlier than 1995. Instead, the Rudolph problem continued to fester.

B. The Mail Bomb Assassination of Judge Robert
Vance (Part Three, Section B)

In 1989, mail bombs killed U.S. Circuit Judge Robert Vance and a civil rights
attorney. A massive investigation ensued, ultimately leading to the indictment
and conviction in 1991 of Walter Leroy Moody, Jr. Whitehurst complained to

the OIG that J. Thomas Thurman of the Explosives Unit (EU) and Martz of the
CTU circumvented Laboratory procedures because Thurman arranged for
Martz's unit to analyze material in the mail bombs even though Whitehurst's
unit, the Materials Analysis Unit (MAU), was responsible for analyzing
explosives residue. Whitehurst also contended that, because Martz failed to
follow the protocol for residue analysis developed by the MAU, he reached a
flawed opinion in concluding that the mail bombs contained a particular
smokeless powder. Whitehurst further alleged that Martz and Thurman
fabricated evidence, perjured themselves, and obstructed justice in the case. He
also suggested that prosecutors Louis J. Freeh and Howard Shapiro, at that time
the AUSAs who tried the case, may have committed misconduct by offering
the testimony of Martz and Thurman.

We found no evidence to support Whitehurst's charges that Thurman and Martz
perjured themselves, fabricated evidence, obstructed justice, or violated any
FBI policies or procedures in the case. We did not find any evidence of
prosecutorial misconduct. In our investigation of this matter, we also reviewed
the analytical work of Robert Webb, an examiner in the MAU who analyzed
certain tape, paint, sealant, and glue, and whose conclusions were reported in
Thurman's testimony. Although Whitehurst had made no allegations against
Webb, we found that Webb stated certain conclusions about his work more
strongly than were warranted by the results of his examinations. We found that
Webb did not fabricate evidence or intentionally bias his conclusions.

Although we did not find the kinds of misconduct alleged by Whitehurst in this
matter, our investigation of this case found ways in which Laboratory practices
and procedures could have been improved. Those included: (1) establishment
of clear guidelines stating the respective responsibilities of different units with
regard to explosives residue analysis; (2) clearer guidance as to the proper
scope of the testimony by examiners other than those who conducted the
underlying analytical tests; (3) an improved record retention and retrieval
system; (4) written and validated protocols for standardized procedures; and (5)
contemporaneous peer review to ensure that conclusions are properly supported
by analysis and data.

C. The World Trade Center Bombing (Part Three, Section C)

After the bombing of the World Trade Center on February 26, 1993, law
enforcement authorities investigated and apprehended several suspects, which
led to convictions in two trials: one beginning in 1993, Salameh, which dealt
primarily with the bombing, and the other in 1995, Rahman, a broader case that
included evidence of the bombing. Prior to the Salameh trial, Whitehurst
complained within the Laboratory about the scientific work in several respects,
all of which were ultimately resolved to his satisfaction prior to the first trial. In
January 1996, however, Whitehurst submitted to the OIG an 80-page critique
of the Salameh testimony of David Williams, an examiner in the Explosives
Unit (EU). Among the many allegations framed by Whitehurst, he specifically
accused Williams of misrepresenting the truth, testifying outside his area of
expertise, and presenting testimony that was biased in favor of the prosecution.
We concluded that Williams gave inaccurate and incomplete testimony and
testified to invalid opinions that appeared tailored to the most incriminating
result. We did not substantiate Whitehurst's many other allegations.

Williams testified in the Salameh trial as an explosives expert, and his
testimony was potentially significant. He opined (1) that the defendants had the
capacity to manufacture about 1200 pounds of the explosive urea nitrate, an
explosive rarely used for criminal purposes, and (2) that the main explosive
(main charge ) used in the World Trade Center bomb consisted of about the
same amount (1200 pounds) of the same explosive (urea nitrate). Normally, the
way a crime laboratory determines the main charge of an exploded bomb is by
finding unconsumed particles or distinctive byproducts of the explosive among
the debris. The search for such residues is made by a forensic chemist. The FBI
chemists specializing in the examination of explosives residue, however, did
not find any residue identifying the explosive at the World Trade Center. Thus,
the normal way of scientifically determining the main charge was unavailable.
Williams' testimony filled that scientific void.

Williams' opinions that the defendants had the capacity to manufacture about
1200 pounds of urea nitrate and that about 1200 pounds of urea nitrate was
used in the bombing were deeply flawed. As explained in detail in the Report,
his testimony about the defendants' capacity exceeded his expertise, was
unscientific and speculative, was based on improper non-scientific grounds,
and appeared to be tailored to correspond with his estimate of the amount of

explosive used in the bombing. His opinions about the explosive used in the
bombing were based on an invalid inference concerning the velocity of
detonation (VOD) of the main charge, an incomplete statement of the VOD of
urea nitrate, invalid and misleading statements about the type of explosives that
could have been used, and speculation beyond his scientific expertise that
appeared to be tailored to the most incriminating result.

Ultimately, Williams conceded during our investigation that he had no basis
from the crime scene for determining the type of explosive used,
acknowledging that based on the crime scene the main charge could have been
anything. That opinion differs substantially from the opinions he rendered in
the Salameh trial that narrowed the category of possible explosives and
ultimately identified the main charge as urea nitrate. During the Salameh trial,
Williams testified that he was a scientist ; the prosecutors referred to him as an
explosive expert witness. In contrast, Williams' identification of urea nitrate
was based not on science but on speculation based on evidence linking the
defendants to that explosive.

Additionally, we concluded that Williams gave inaccurate testimony regarding
his role -- and the formulas used -- in the FBI's manufacture of urea nitrate, and
that his testimony concerning his attempt to modify one of Whitehurst's
dictations was misleading.

The Report also details many other allegations made by Whitehurst, which we
found to be unsubstantiated. We also concluded that the World Trade Center
case exemplifies the need for persons within the EU to have scientific
expertise, examiners to understand the distinctions between their role as
forensic science experts and the role of a criminal investigator, clear guidelines
about matters within the expertise of an EU examiner when testifying, and
proper documentation of case work.

D. The Avianca Case (Part Three, Section E)

The Avianca case involved the midair explosion aboard Avianca Airlines Flight
203 shortly after its takeoff from Bogota, Colombia, on November 27, 1989.
Everyone onboard, including two Americans, were killed in the crash. Agent
Richard Hahn, at that time an examiner in the EU, was assigned to the team of
Americans sent to Colombia to assist with the investigation. Hahn collected
evidence at the crime scene, examined evidence, and prepared a final report. He
also testified both in the first trial in New York, which ended in a mistrial, and
the second trial, which resulted in the 1994 conviction of Dandeny MunozMosquera (Munoz).

In 1990 Whitehurst conducted chemical analysis of evidence found at the
scene, and his findings were part of Hahn's final report for the Laboratory.
After the Munoz trials, Whitehurst alleged that Hahn fabricated evidence,
committed perjury, and testified outside his area of expertise in those trials.

Whitehurst's first disagreement with Hahn's testimony concerned the type of
explosive used in the blast. Hahn testified in both trials that a high velocity
explosive was used in the bombing, based on his observation of indentations on
the fuselage known as pitting and cratering, a phenomenon in which an
explosion causes small indentations on metal surfaces. We concluded that
Hahn's correlation of the pitting and cratering to a high velocity explosive
within a narrow range of velocity of detonation was scientifically unsound and
not justified by his experience. Moreover, in light of scientific literature
Whitehurst submitted to Hahn before the second trial, Hahn erred by not
inquiring about the validity of the theory upon which he based his testimony
concerning pitting and cratering.

Next, Whitehurst alleged that Hahn gave inappropriate testimony regarding
Whitehurst's 1990 findings of two explosives (RDX and PETN) in the evidence
from the aircraft, because Hahn failed to mention the conclusions set forth in a
memorandum written by Whitehurst in 1994. That memorandum, written on
the same day Hahn testified in the first trial, addressed whether the FBI could
scientifically disprove a story advanced by someone in Colombia (the
Confessor ) who confessed to the Avianca bombing and claimed that the
defendant was not involved. We found that Hahn's testimony in the first trial
was unobjectionable in that respect (since he was unaware of the

memorandum) but that his testimony in the second was incomplete for having
failed to take into account certain aspects of the analysis advanced by
Whitehurst in the memorandum. We further concluded that SAS Chief Kearney
contributed to Hahn's incomplete testimony by not properly resolving the issues
raised in Whitehurst's memorandum.

Whitehurst's memorandum was a deeply flawed document, however, because
it: (1) reached an invalid conclusion (from Whitehurst's failure properly to
review his own laboratory work) about whether he could scientifically exclude
the explosive the Confessor said was used; (2) misstated a conversation he had
had with Hahn on a material point; (3) rendered a misleading and overstated
opinion suggesting that the data was consistent with a potential defense; and (4)
improperly raised questions about whether contamination may have accounted
for Whitehurst's original scientific findings.

Finally, Hahn testified to a theory that a fuel-air explosion followed the initial
blast and that certain of the passengers' injuries were indicative of such an
explosion. That testimony was flawed and exceeded Hahn's expertise.

The Avianca case was an unfortunate instance in which communication broke
down between examiners and supervisors in the Laboratory, and in which the
EU examiner testified to opinions that were not justified by his experience or
the applicable science or that exceeded his expertise. It was not, as Whitehurst
alleges, an illustration of a Laboratory examiner committing perjury or
fabricating evidence. And indeed, Whitehurst's own conduct in this matter,
especially his 1994 memorandum, was seriously flawed.

E. Testimony by Agent Martz in the O.J. Simpson
Case (Part Three, Section F)

To address the defense's contention that the police had planted blood at the
crime scene and on socks found in the defendant's residence, the prosecutors in

the O.J. Simpson case asked the FBI Laboratory to determine whether the
blood preservative EDTA was present in those blood stains. CTU Chief Roger
Martz and several research chemists at the FBI Forensic Science Research Unit
(FSRU) at Quantico worked to develop a method for identifying EDTA in
blood. After Martz testified in the Simpson trial, Whitehurst alleged that
scientists at the FSRU had commented that Martz had committed perjury,
misled the jury concerning the validation studies conducted by the FSRU
scientists, misled the defense by stating that all digital data from the analysis of
the evidence had been erased, and generally testified in an arrogant manner.

We found no basis to conclude that Martz committed perjury or any
corroboration that FSRU scientists had made such allegations. Nor did we find
that Martz improperly erased digital data. Martz was unfairly criticized by the
defense for not conducting certain tests. We did not criticize Martz for the
substance of the analytical work performed by him and the FSRU chemists, but
rather for his deficient record-keeping and note-taking and for the manner in
which Martz testified. That testimony ill served the FBI because it conveyed a
lack of preparation, an inadequate level of training in toxicological issues, and
deficient knowledge about other scientific matters that should be within the
expertise of a chief of a unit handling chemical and toxicological analyses in
the Laboratory.

F. The Oklahoma City Bombing (Part Three, Section G)

Not long after the EU completed its report on the Oklahoma City bombing,
Whitehurst wrote a 30-page letter to the OIG criticizing David Williams, the
EU examiner responsible for the report. We concluded that many of the same
errors committed by Williams in the World Trade Center case were repeated in
the Oklahoma City case -- principally, that Williams based some of his
conclusions not on a valid scientific analysis but on speculation from the
evidence associated with the defendants.

Williams' September 5, 1995, report contained several serious flaws. Just as he
had done in the World Trade Center case, he offered an opinion about the

velocity of detonation (VOD) of the main charge that was unjustified. His
statement about the VOD of an ammonium nitrate fuel oil (ANFO) explosive -the explosive allegedly used in the bombing -- was incomplete. His categorical
identification of the main charge as ANFO was inappropriate based on the
scientific evidence available to him. Here, Williams did not draw a valid
scientific conclusion but rather speculated from the fact that one of the
defendants purchased ANFO components. His estimate of the weight of the
main charge was too specific, and again was based in part on the improper,
non-scientific ground of what a defendant had allegedly purchased. In other
respects as well, his work was flawed and lacked a scientific foundation. The
errors he made were all tilted in such a way as to incriminate the defendants.
We concluded that Williams failed to present an objective, unbiased, and
competent report.

Williams' supervisor, J. Thomas Thurman, did not properly review Williams'
report. Thurman left too much discretion to Williams to include certain
opinions, and Thurman allowed certain conclusions to stand even though he
told us that he now does not agree with them and cannot justify them, and the
conclusions are unsupported in the body of the report.

All cases handled by the Laboratory deserve professional, diligent treatment.
Williams' and Thurman's performances in the Oklahoma City case -- a
prosecution of enormous national significance -- merit special censure.

IV. General Summary of Other Matters (Part Three, Sections H1-H13)

In the course of providing more than 1000 pages of written allegations to the
OIG, Whitehurst has also alleged wrongdoing in a range of other cases also
addressed in our Report. In none of those cases did we find Whitehurst's
allegations of intentional misconduct to be borne out by facts, even when those
allegations concerned Laboratory personnel who are sharply criticized in the
Report. In investigating those allegations, however, we found instances in
which general practices and procedures could be improved. Those more general
recommendations are set forth later in this Summary.

In the following cases, our findings and conclusions are set out in detail in the
report and we will not repeat the conclusions in this Summary:

o

Yu Kikumura, a 1988 prosecution of a member of the Japanese
Red Army terrorist faction;

o

a Laboratory report analyzing two pipe bombs found in fuel
storage tanks at a marine terminal in Norfolk, Virginia, in 1991;

o

analytical work conducted in connection with the disappearance
of a young girl named Melissa Brannen in 1989;
testimony and analytical work in the Italian prosecution of the
murderers of Paolo Borsellino, who was killed in a car bombing in
Sicily in 1992; the 1994 prosecution of the person charged with
the attempted murder of Miami criminal defense attorney Gino
Negretti;

o

o

work conducted by the Laboratory after James Conlon, a
hydraulic crane operator, died in an explosion while working at a
scrap metal yard in New Jersey in 1992;

o

the analysis of smokeless powder found in a pipe bomb sent to
U.S. District Judge John Shaw in 1995;

o

a Laboratory report in which David Williams offered an expert
opinion about the main charge in an improvised explosive device
in connection with an investigation of the Ghost Shadow Gang of
New York; and

o

a 1994 article describing fourteen explosive devices thought to be
associated with the so-called Unabomber.

Four other matters are also addressed in this section of the Report:

1) Whitehurst alleged that Thurman committed
willful misconduct by changing Whitehurst's
Laboratory reports. This, and a similar allegation
regarding other examiners, arose because one of the
supervisors in the Laboratory who has since retired
did not strictly adhere to an unwritten policy that
auxiliary examiner reports were to be included
verbatim in final reports unless the person preparing
the final report and the person who had prepared the
auxiliary report agreed on the changes. We found
numerous instances in which Whitehurst's reports
were changed by Thurman. Some of those changes
resulted in inaccuracies and unsubstantiated
conclusions. Other modifications did not concern
matters of substance but were stylistic changes.

2) Whitehurst also contended that EU examiner
Wallace Higgins had significantly changed a number
of Whitehurst's dictations without his authorization.
We substantiated that charge. Both the Thurman and
Higgins alterations underscore the need for
Laboratory personnel to follow Laboratory policy to
ensure that the reports of analytical work prepared
by Laboratory scientists are not substantively altered
unless agreement is reached on the changes. Our
views on the preparation of Laboratory reports are
detailed in a later section stating general
recommendations.

3) William Tobin, a metallurgist now working in the
Materials Analysis Unit (MAU), brought several
matters to the OIG's attention. These included cases
in which he believed that other examiners
(principally in the EU) had incorrectly conducted or
reported metals-related examinations. He also
contended that Michael Malone, who was formerly
in the Hairs and Fibers Unit, testified inaccurately
and outside his area of expertise in a 1985 hearing by
a judicial committee of the Judicial Council of the
Eleventh Circuit relating to then-U.S. District Judge
Alcee Hastings, who was subsequently impeached.
With respect to the Hastings matter, we concluded
that Malone falsely testified that he had performed a
tensile test and that he testified outside his area of
expertise and inaccurately with respect to the test
results. Tobin himself acknowledged that Malone's
misstatements did not affect the assessment they
both shared that a particular purse strap had been cut.
The judicial committee appeared not to place any
significance on Malone's testimony with respect to
the purse, since there is no mention of it in the
specific findings articulated by the committee to
support its conclusion that Hastings had committed
misconduct. Nonetheless, we found Malone's
testimony inexcusable and criticized the Laboratory's
failure properly to deal with Tobin's complaint about
it.

4) Late in our investigation, Whitehurst wrote a
letter to the OIG expressing concerns about
testimony given by CTU Chief Roger Martz in
Florida v. George Trepal, a case that resulted in the
conviction and death sentence of Trepal for having
added the poison thallium nitrate to bottles of CocaCola. We found that Martz could have properly
opined that certain samples were consistent with
thallium nitrate having been added to them. Martz,

however, did not limit his conclusions that way, but
instead offered an opinion stronger than his
analytical results would support. He also failed to
conduct certain tests that were appropriate under the
circumstances, failed to document adequately his
work, and testified inaccurately on various points.
Martz's work in this case was seriously deficient.

V. Whitehurst's Allegations of Retaliation (Part Four)

A recurring theme in Whitehurst's complaints and allegations to the OIG has
been that the FBI retaliated against him for raising concerns about the FBI
Laboratory to the FBI and others. Retaliation is a difficult issue to investigate,
because it rests on the motivations of persons taking actions with respect to the
complainant. Neutral explanations may sometimes mask an unstated intent to
take harmful actions. Some of the allegations in lawsuits filed by Whitehurst
against the FBI and the Department of Justice involve actions taken after the
OIG launched this investigation. We did not attempt to assess whether recent
actions taken by the FBI -- such as placing Whitehurst on administrative leave
with pay after the OIG draft report was issued -- constituted acts of retaliation.
Rather, our focus was on retaliatory conduct Whitehurst alleged was directed at
him before November 1995. With respect to all but one of Whitehurst's
contentions, we concluded that the evidence did not substantiate his allegations
of retaliation because we discerned no retaliatory purpose behind the FBI's
decisions that he questioned. As for the remaining contention, we were unable
to complete our investigation due to Whitehurst's decision not to provide a
release form that would have permitted key personnel to speak to us about
medically sensitive information regarding Whitehurst.

Whitehurst claimed that he was retaliated against for accusing Terry Rudolph
of misconduct in the Psinakis case. After he criticized Rudolph, Whitehurst was
suspended without pay for seven days and placed on probation for six months.
We did not substantiate Whitehurst's claim. FBI management had reason to
criticize Whitehurst's actions in the Psinakis case because he erred in making
his concerns known only to the defense attorneys, without first discussing them
with the prosecutor, case agent, or his supervisors. The evidence further

showed that the FBI's internal discipline unit imposed the suspension despite
opposition from Laboratory managers, who recommended the least severe form
of discipline possible for Whitehurst. The disparity in treatment between
Whitehurst and Rudolph appeared to reflect a failure by management
adequately to appreciate the seriousness of Rudolph's conduct rather than an
attempt to retaliate against Whitehurst.

Whitehurst also contended that FBI OPR ignored and covered up his
allegations that personnel in the Criminal Investigative Division were
unlawfully using computer software and that an agent assaulted Whitehurst's
wife, who also works at the FBI. Although the evidence showed that the OPR
investigation was not as thorough as it should have been, we did not
substantiate charges of a coverup. Indeed, Mrs. Whitehurst herself told the OPR
investigator that she did not suffer any retribution or continuing harm, although
she did feel threatened by the agent at the time of the incident.

Whitehurst next maintained that FBI OPR improperly initiated an investigation
into his disclosure of information to the Senate Judiciary Committee. FBI OPR
investigated the disclosures, which were admitted by Whitehurst, because of
concerns that confidential FBI records had been disclosed to unauthorized
persons. When the Judiciary Committee refused to disclose Whitehurst's letters
on the ground of protecting confidentiality, FBI OPR closed its investigation
and no administrative action was taken against Whitehurst. We found no
retaliatory purpose in the actions taken by FBI OPR with respect to this
allegation.

In addition, Whitehurst alleged that FBI OPR improperly disclosed derogatory
information about him to prosecutors in the World Trade Center and O.J.
Simpson cases. After reviewing the disclosures of materials made by the FBI in
those cases and interviewing the relevant FBI and U.S. Attorney personnel, we
concluded that the FBI did not improperly disclose derogatory information
about Whitehurst in those cases, but rather attempted to provide appropriate
material regarding witness credibility.

In May 1994, the FBI reassigned Whitehurst from the explosives residue
program to be an analyst of paints and polymers. Whitehurst alleged that this
reassignment was in retaliation for reporting misconduct in the Laboratory and
especially in the Explosives Unit. The Chief of the Scientific Analysis Section,
James Kearney, made the decision to transfer the explosives residue program
from the Materials Analysis Unit (MAU) to the Chemistry-Toxicology Unit
(CTU). He gave two reasons for that move. One was to more closely balance
the responsibilities and staffing of the CTU and MAU after a reorganization. A
second was to place the explosives residue analysis program under a single unit
chief; before that time responsibilities had been divided between the CTU and
MAU. Although there was internal opposition to the transfer in responsibilities
on the ground that CTU Chief Martz lacked the expertise to supervise the
program, we found no evidence of a retaliatory purpose in the transfer of the
explosives residue program from the MAU to the CTU.

Similarly, Kearney explained that the reason he moved Whitehurst out of the
explosives residue program was because of Whitehurst's poor working
relationship with EU and other personnel. Whitehurst acknowledged tension
between himself and the EU examiners. MAU Chief Corby also noted that
transferring Whitehurst to the CTU with the explosives residue program would
have been problematic because of friction between Whitehurst and Martz.
Thus, substantial credible evidence showed that the decision to move
Whitehurst out of the explosives residue program was not made for a retaliatory
purpose.

We also investigated other information proffered by Whitehurst in support of
his retaliation claim, but we did not find the anecdotes he supplied to be
sufficient to support his claim that an atmosphere of retaliation existed in the
Laboratory.

Finally, Whitehurst alleged that in 1993, the FBI ordered him to undergo
psychiatric evaluation and therapy in retaliation for his raising various
complaints against the FBI Laboratory. We concluded that the Laboratory
personnel did not act with a retaliatory purpose in referring the matter to the
FBI Health Care Program Unit (HCPU) and the FBI Employee Assistance
Program (EAP). However, because Whitehurst did not provide the necessary

medical release forms to allow us to interview key personnel with the HCPU,
EAP, and Personnel Section, we could not reach any definite conclusions
concerning the motives of any such personnel in referring Whitehurst to
psychotherapy.

VI. Findings and Recommendations Concerning Individuals
(Part Five)

Because Whitehurst made allegations of misconduct against a large number of
persons in a large number of cases, we detailed in a separate part of the Report
our findings and conclusions about each person against whom allegations were
made or when our findings led us to conclude that the conduct of a person
merited critical comment. In some instances, we made recommendations that
persons be transferred from the positions they held prior to completion of our
draft report, they be given special supervision, and/or their Laboratory reports
be reviewed because of concerns we identified in their work.

CTU Chief Roger Martz lacks the judgment and credibility to perform in a
supervisory role within the Laboratory. If Martz continues to work as an
examiner, we suggest that he be supervised by a scientist qualified to review his
work substantively and that he be counseled on the appropriate manner for
testifying about forensic work. We further recommended that another qualified
examiner review any analytical work by Martz that is to be used as a basis for
future testimony.

EU Chief J. Thomas Thurman deserves special censure for his inadequate
supervisory review of Williams' report in the Oklahoma City bombing case.
Because we concluded that all examiners in the EU, including the Chief, should
have a scientific background, we recommended that he be reassigned outside
the Laboratory when that restructuring occurs.

EU examiner David Williams should be reassigned outside the Laboratory.
Although we did not find that Williams had perjured himself in the World
Trade Center case, his work in that case and in the Oklahoma City investigation
demonstrate that he lacks the objectivity, judgment, and scientific knowledge
that should be possessed by a Laboratory examiner.

EU examiner Wallace Higgins should be reassigned outside the FBI Laboratory
when the restructuring of the EU occurs. In the interim, while Higgins remains
in the EU, the SAS Chief should counsel Higgins on the proper preparation of
reports and monitor his work. A qualified explosives examiner also should
review any reports prepared by Higgins.

Richard Hahn no longer works in the Laboratory. If in the future he is called
upon to testify about his work as an examiner, we recommended that he be
specially counseled about the importance of not testifying on matters beyond
his expertise and that his testimony should be reviewed by qualified examiners
to ensure that it is appropriately limited.

Michael Malone no longer works in the Laboratory, having been transferred
from the Hairs and Fibers Unit in 1994. We concluded that Malone testified
falsely and outside his expertise in the Hastings matter. We recommended that
the FBI assess what discipline is appropriate and monitor future expert
testimony to assure that it is accurate and limited to matters within his
knowledge and competence.

Robert Webb also has been transferred out of the Laboratory. We found that
Webb's report in the VANPAC case stated conclusions more strongly than were
justified by the results of his examinations and the background data. We
recommended that another qualified examiner review Webb's analytical work
in the event it is to be used as the basis for future testimony.

J. Christopher Ronay was the EU Chief from 1987 through October 1994, when
many of the problems raised by Whitehurst first surfaced. We found that he
exhibited poor judgment as a manager in approving EU reports. Because he is
retired, we did not recommend any action concerning Ronay.

Terry Rudolph is now retired from the FBI. Although we were told that he
worked as a consultant for a period of time after his retirement, we
recommended that he not be employed in any capacity by the FBI in the future.
We further recommended that a notation referring the findings of this Report be
placed in each of his case files.

With respect to managers in the FBI Laboratory, we found important instances
of deficiencies and failures to handle situations in an expeditious, thorough, and
effective manner. A significant example of that finding occurred at the very
outset of Whitehurst's criticisms and the weak response of Laboratory
management to AUSA Burch's letter to the Laboratory Director regarding
deficiencies in Rudolph's performance in Psinakis in 1989. More recent
examples involved significant problems in explosives-related cases.
Management lapses included failures to supervise appropriately the drafting of
Laboratory reports in the EU, to evaluate the competence of examiners, and to
establish a climate in which meaningful peer reviews and the professional
resolution of scientific disagreements were the norm. The Report singles out for
criticism Charles Calfee, Kenneth Nimmich, James Kearney, and John Hicks,
all of whom are now retired from the FBI. We did not, however, substantiate
criticisms of Alan Robillard, who transferred out of the Laboratory in 1994.

Our investigation exonerated a number of persons against whom allegations of
misconduct were made. Those persons included: Roger Asbury, Edward
Bender, Louis J. Freeh, Donald Haldiman, Ronald Kelly, Lynn Lasswell,
Richard Laycock, Thomas Mohnal, Bruce McCord, Mark Olson, and Howard
Shapiro. Furthermore, we did not substantiate Whitehurst's allegations against
Alan Jordan, and although we did not substantiate allegations against Robert
Heckman in the Borsellino matter, we did find reason to criticize Heckman for
his work in the Conlon case.

Finally, the Report discusses Frederic Whitehurst, the complex person whose
expression of concern about problems in the Laboratory sparked this
investigation. He is an experienced scientist who identified significant
problems in certain cases and in certain practices within the Laboratory. He
also accused many of his colleagues of perjury, fabrication of evidence, and
conspiracy. Those allegations were not supported by the facts uncovered in the
investigation. Any decisions about Whitehurst must involve a careful weighing
of the substantial contribution he made in bringing to light issues in the
Laboratory that needed to be addressed against the considerable harm he has
caused to the reputations of innocent persons and the fact that his frequently
overstated and incendiary way of criticizing Laboratory personnel will make it
extremely difficult if not impossible for him to work effectively within the
Laboratory. Our own view is that Whitehurst lacks the judgment and common
sense necessary for a forensic examiner, notwithstanding his own stated
commitment to objective and valid scientific analysis.

VII. Summary of Recommendations Regarding Laboratory Policies and
Practices (Parts Six and Seven)

Although we made recommendations with respect to individuals, we perceived
our principal mission to be to make systemic recommendations on Laboratory
practices and procedures, the full implementation of which would help the FBI
Laboratory avoid in the future the problems we encountered in the matters we
investigated. The recommendations as to individuals are, however, a necessary
concomitant to achieving the type of organizational and cultural changes that
should be undertaken by the FBI. The FBI has recognized in the immediate past
that some aspects of its policies and procedures demand change, and upper
management has taken steps to put new policies into effect. It is not clear from
those policy changes that Laboratory top management has acknowledged that
appropriate assessments of personnel are also required. Steps must be taken to
provide personnel with the appropriate training, background, and commitment
to quality that is required in a first-class forensic laboratory.

In its response to our draft report, the FBI concurred with nearly all of the
OIG's systemic recommendations, even though it frequently disagreed with
how we applied those general principles in assessing individual performances.

Our emphasis in the previous section on individuals, therefore, should also be
read in light of the importance
of investing personnel in the Laboratory with the appropriate skills and
motivations to change old practices, as well as of underscoring the need for
personal accountability as those changes are made. Thus, although virtually all
of the following general recommendations are recognized within the FBI as
appropriate and have been accepted as valid, the best proof of acceptance will
not be in the articulation of new practices, but in their complete implementation
in the coming years.

Our first recommendation was one already accepted by the FBI -- that the
Laboratory should pursue accreditation by the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB). In 1994,
Director Freeh announced that the Laboratory would pursue accreditation at the
earliest possible time, and the FBI's response to the OIG draft report
acknowledged that the Laboratory could and should have sought ASCLD/LAB
accreditation a decade ago. We commend the FBI for now making such
accreditation a top priority for the Laboratory. The criteria imposed in the
accreditation process should promote valuable and productive interchanges
with other laboratories to change some of the insular and parochial views we
encountered in the EU, CTU, and MAU, as well as to assist the Laboratory in
modernizing policies and practices. Accreditation is not a panacea, nor is the
absence of accreditation an indictment of all tests performed in the Laboratory.
But the process of undergoing accreditation should enhance quality
performance.

Second, we recommended that the Explosives Unit be restructured and its
mission clarified. One existing problem in the EU is that its personnel are not
forensic scientists. We recommended (and the FBI agreed) that examiners in
the EU have scientific background in pertinent disciplines such as chemistry,
metallurgy, or engineering, as well as technical training in the assembly,
deactivation, and use of explosive devices. Although EU examiners should be
available to consult at crime scenes, primary responsibility for conducting
investigations and directing crime scene management functions should rest
with components of the FBI outside the Scientific Analysis Section. (The
recommendation concerning the proper role of EU examiners at the crime

scene was the only recommendation discussed in this Section with which the
FBI disagreed.)

Third, the Laboratory should abolish its current distinction between principal
and auxiliary examiners, in which the auxiliary examiners' reports are
combined into
a single report by a principal examiner. In cases in which more than one
examiner is called upon to evaluate evidence, we suggested that a coordinating
examiner assume the role of ensuring that the correct units of the Laboratory
have been enlisted to work on the case and that the reports generated by those
units are accurately included in the final set of reports. Although we were told
that an unwritten policy (prior to a formal written directive in September 1994)
had long been that auxiliary examiner reports were incorporated verbatim, we
found numerous instances in which that policy was not followed.

Fourth, we recommended that, instead of one report emanating from the
Laboratory with analytical results reflected in the body of that report without
attribution to individual examiners, each examiner who performs work should
prepare and sign a separate report, even if such individual reports are ultimately
collected together as the unified report of the Laboratory as a whole.

Fifth, analytical reports should also be substantively reviewed by the unit chief
or another examiner (if the unit chief lacks the requisite expertise or has
performed the analysis) before they are released in final reports. Forensic
science is sufficiently complex that such substantive review need not always
follow hierarchical lines within the Laboratory management structure. A junior
examiner who is qualified in the area should be capable of substantively
reviewing a unit chief's analysis. Our central point is that peer review by
qualified personnel is an essential aspect of a high-performing forensic science
laboratory. The Rudolph matter, certain conclusions in the Oklahoma City
report, and other cases demonstrate the importance of vigorous, substantive
peer review.

Sixth, reports must be supported by adequate case files. The Rudolph files and
some of Martz's work underscore the importance of case files containing all of
the documentation necessary for another appropriately qualified examiner to be
able to understand and replicate the examiner's data and analysis. We
encountered the problem of incomplete or missing documentation in many case
files. Accreditation will require the Laboratory to maintain a rigorous system of
case filing, which has not existed in the past.

Seventh, not only must the files contain all relevant documentation of results,
but the records themselves must be maintained so as to facilitate ready
retrieval. We suggested that the Laboratory keep its own files rather than
integrating Laboratory files with the Bureau's general case filing system.

Eighth, we recommended that the Scientific Analysis Section of the Laboratory
Division develop and implement a coordinated training program for examiners.
Training has been conducted at the unit level, and has developed in an ad hoc
manner. As suggested in the ASCLD/LAB accreditation process, a unified
curriculum for common issues and moot courts for testimony would be helpful.
At the unit level, managers should clearly articulate training criteria and
document completion of curricula.

Ninth, the FBI should develop a uniform program for training examiners with
respect to court testimony and monitoring such testimony. We found the
problem of examiners testifying to matters beyond their expertise or in ways
that were unprofessional in Hahn's testimony in the Avianca case, Williams'
testimony in the World Trade Center case, and Martz' testimony in Trepal and
Simpson.

Our tenth and eleventh recommendations addressed the development of written
protocols generally for the scientific procedures utilized. For the analysis
performed in the FBI Laboratory to have wide-ranging credibility in courts and
in the forensic science community, examiners must strictly adhere to
established protocols for the analysis of evidence or document the reasons for

departing from them. The same is true for the handling of evidence and the
adoption of measures to prevent and detect contamination.

Finally, the role of management is critical to achieving the types of reforms
needed in the Laboratory. As we have noted, before and during our
investigation Laboratory managers have begun the process of implementing
many of the recommendations we noted above, as the process of preparing for
accreditation continues. Those reforms must be substantive and should be
structured to address the fundamental issues raised in our Report.
VIII. Conclusion

The FBI's cooperation with the OIG investigation and acceptance of our
systemic recommendations should be lauded. The process of managing
necessary changes will be challenging in an environment in which scientific
knowledge is expanding and forensic science is increasingly under scrutiny.
We welcome the FBI's suggestion of our continued involvement in oversight to
assist in ensuring that needed reforms are fully implemented. We will seek to
perform that function in a manner consistent with the Laboratory's expeditious
efforts to obtain ASCLD/LAB accreditation and its ongoing development of
first-class examiners and standards. Although we have rejected the most
inflammatory allegations made by Whitehurst, the FBI Laboratory must fully
acknowledge past problems that have been identified as it continues its pursuit
of excellence in forensic science.

Michael R. Bromwich
Inspector General

#####

PART TWO: BACKGROUND TO THE OIG INVESTIGATION

In September 1995, the Department of Justice announced that the Office of the
Inspector General (OIG) was investigating allegations made by Frederic
Whitehurst about the FBI Laboratory. Whitehurst is an FBI Supervisory
Special Agent (SSA) with a doctorate in chemistry who has worked in the FBI
Laboratory since 1986. During most of his career in the Laboratory, Whitehurst
performed chemical analyses of explosives and explosives residue, and his
criticisms relate primarily to bombings and explosives cases.

Over several years, Whitehurst has accused other FBI personnel of serious
misconduct and even illegal acts. Whitehurst alleges that Laboratory examiners
have improperly testified outside their expertise, presented insupportable
conclusions, perjured themselves, fabricated evidence, and failed to follow
appropriate procedures. He also contends that FBI management retaliated
against him for making these accusations. His allegations involve some of the
most highly publicized and significant cases investigated by the FBI in recent
years, including the mail bomb assassination of United States Circuit Judge
Robert Vance, the World Trade Center bombing, the attempted assassination of
former President George Bush in Kuwait, and the bombing of the Alfred P.
Murrah Federal Building in Oklahoma City.

The OIG investigation focused on Whitehurst' s allegations, which largely
concern three components of the Laboratory: the Explosives Unit, the
Chemistry-Toxicology Unit, and the Materials Analysis Unit. At the outset, the
Inspector General emphasized that the investigation would not be restricted to
Whitehurst' s specific allegations, and that the report would also address any
other pertinent issues identified in the course of the investigation and comment
on ways to further enhance the quality of the Laboratory' s work. We have not,
however, attempted to review the Laboratory overall. This report should not be
interpreted as either criticism or approval of the Laboratory as a whole or of
particular components that are not addressed in the report.

We also think it appropriate to state explicitly our perspective in conducting the
investigation and reaching our conclusions. The FBI Laboratory aspires to
provide forensic services of the highest quality, and we did observe some
impressive work by Laboratory personnel. We recognized, however, that one
cannot expect an examiner' s work or testimony to have been perfect in every
case if it is subjected to a detailed, after-the-fact analysis such as we employed
in our investigation. Laboratory examiners work under time constraints and
other pressures; scientists can legitimately differ in their interpretation of data;
and knowledge and practices in forensic disciplines evolve over time. We also
reviewed, with the benefit of hindsight, certain testimony given under
courtroom examination, where a witness generally cannot reflect at length on
the questions or answers. Bearing these points in mind, when we critically
evaluated individual conduct or Laboratory practices, we attempted to apply
standards that were generally accepted at the time of the events in question.

Whitehurst' s allegations encompass events dating from the early 1980s to the
present. During this period, there have been significant changes in the
Laboratory and the broader legal and scientific environment in which it
operates. To place Whitehurst' s allegations and the OIG investigation in
context, this Part of the report provides background information. Section I
briefly describes the organization of the FBI Laboratory, the Laboratory units
that are central to Whitehurst' s allegations, and some recent developments
affecting the Laboratory in general. Section II describes Whitehurst' s
background and career in the Laboratory and then reviews the history of his
complaints about Laboratory practices and personnel. Section III summarizes
the OIG' s role in investigating Whitehurst' s allegations and how this Report
was prepared.

I. The FBI Laboratory

This section of the report describes the Laboratory' s organization and the
particular units that are the focus of Agent Whitehurst' s allegations. We also
discuss three developments over the last several years that have affected, or
will likely affect, the Laboratory' s operations. These are: (1) the Laboratory' s
adoption of a formal quality assurance program and the decision to pursue
accreditation from the American Society of Crime Lab Directors/Laboratory

Accreditation Board (ASCLD/LAB); (2) the FBI' s decision to reduce the
number of agents assigned as examiners within the Laboratory and to replace
many of them with professional support examiners who are not agents; and (3)
changes in the legal standard for the admissibility of scientific testimony as a
result of the Daubert decision and changes in the federal rules for pretrial
disclosure concerning expert witnesses.

A. Organization of the Laboratory

The FBI' s Laboratory is formally known as the Laboratory Division.
Approximately 583 FBI personnel now work in this division. As shown in the
organizational chart that appears in Attachment B to this Report, the Laboratory
Division comprises five sections: the Scientific Analysis Section (SAS), the
Latent Fingerprint Section, the Special Projects Section, the Forensic Science
Research and Training Center (FSRTC), and the Investigative Operations and
Support Section. Sections within the Laboratory Division are divided into
different units according to function. Although there have been certain
organizational changes since the 1980s, the Laboratory' s basic organizational
structure and managerial hierarchy have largely remained the same.

The Laboratory Division is headed by an Assistant Director of the FBI. Donald
W. Thompson has served as Acting Laboratory Director since January 16,
1996. His predecessor as Laboratory Director was Milton Ahlerich, who held
the position from July 1994 until his retirement in January 1996. John Hicks
was the Laboratory Director from 1989 until his retirement in July 1994.

The Scientific Analysis Section (SAS) is responsible for forensic examinations,
except those involving the examination of latent prints or documents. Until
recently, the SAS was divided into seven units: Chemistry-Toxicology,
Explosives, DNA Analysis, Firearms and Toolmarks, Hairs and Fibers,
Materials Analysis, and Forensic Science Systems. The SAS is headed by a
Section Chief, currently Randall S. Murch, and each unit is headed by a Unit
Chief.

Cases submitted for analysis in the SAS are typically assigned to a Principal
Examiner, who may also be referred to as the Primary Examiner or PE. The
Principal Examiner is responsible for preparing the Laboratory' s final report on
the case, which may include analyses performed by that examiner and other
Laboratory examiners designated Auxiliary Examiners or AEs. When Auxiliary
Examiners complete their examinations, they submit reports, called dictation,
for inclusion in the Principal Examiner' s official report. For example, an
explosives case might be assigned to a Principal Examiner in the Explosives
Unit, who prepares a Laboratory report based on his or her own work and on
dictation submitted by Auxiliary Examiners in other units.

In bombing and other explosives-related cases, two different units normally
have important roles. The Explosives Unit (EU) has been responsible for the
analysis of the overall construction of explosive devices, and examiners from
that unit have been assigned as the Principal Examiners in most explosivesrelated cases. EU examiners, however, are not chemists and do not perform a
chemical analysis of the explosive material of unexploded devices or the
explosives residue of exploded devices. The EU examiners generally do not
have academic degrees or significant experience in scientific disciplines; most
of them are experienced FBI agents with backgrounds in military explosive
ordnance disposal (EOD).

Until mid-1994, the chemical analysis of most explosives and explosives
residue was largely conducted by examiners in the Materials Analysis Unit
(MAU). From 1989 until 1994, Frederic Whitehurst was the Laboratory' s
senior examiner of explosives residue. In 1993, Steven Burmeister also began
examining explosives residue, and since mid-1994, Burmeister has been the
Laboratory' s senior examiner in that field. Before 1994, the ChemistryToxicology Unit (CTU) also worked on certain explosives cases because that
unit performed analyses to identify smokeless powder. The CTU had one or
more mass spectrometers (a sophisticated instrument used to identify chemical
materials), which the CTU used to analyze various substances for its own
examinations or for other units, including the MAU. In the summer of 1994,
SAS Chief Kearney transferred responsibility for explosives residue analysis
from the MAU to the CTU. Burmeister was reassigned to the CTU, while

Whitehurst remained in the MAU and later began training to become an
examiner of paints and polymers.

B. The Laboratory' s Quality Assurance Plan and Accreditation

Changes in Laboratory practices are occurring due to the Laboratory' s
decisions over the last several years to implement a formal quality assurance
plan and to seek accreditation by ASCLD/LAB. These changes merit comment
for two reasons. In evaluating Whitehurst' s accusations that others have
violated Laboratory policies or otherwise acted unprofessionally, it is important
to recognize that the Laboratory' s practices related to quality assurance have
evolved significantly. This fact is also relevant in attempting to identify ways to
further improve the quality of the Laboratory' s work.

Before November 1992, there was no formal quality assurance plan for the
Laboratory. Instead, the Laboratory sought to promote quality through practices
that included: (1) assigning agents to the Laboratory only after they had worked
for at least three years in the field and requiring one to two years of on-the-job
training in the Laboratory for agents to qualify to work as examiners; (2)
consultation among examiners about the interpretation of their results; (3)
review and approval of work by unit chiefs before reports were released; and
(4) proficiency tests. Because there was no comprehensive quality assurance
plan, however, separate units within the Laboratory largely implemented
quality assurance measures on an individual basis.

In August 1991, Laboratory Director Hicks approved a recommendation by
James Kearney, then the Chief of the FSRTC, to create a quality assurance
group to develop a quality assurance and safety program for the entire
Laboratory. At that time, an ASCLD Study Committee within the Laboratory
was already conducting an internal review of practices and procedures based on
standards used by the American Society of Crime Lab Directors/Laboratory
Accreditation Board (ASCLD/LAB). ASCLD/LAB administers a voluntary
program for accreditation of forensic laboratories based on several objective
criteria.

On September 6, 1991, the Study Committee reported to Hicks that it had
completed its self-review of the Laboratory. The Study Committee observed
that the Laboratory could meet the requirements for accreditation, provided that
ASCLD/LAB clarified certain requirements and the Laboratory implemented
certain recommendations made by the Study Committee. Within a week of the
self-review, however, the Study Committee advised Hicks that the internal
inspection showed that several units had not incorporated recently approved
policies, including policies related to protocols and the handling of evidence,
into their respective manuals.

In December 1991, Study Committee member James Mudd participated as an
observer in an ASCLD/LAB inspection of another laboratory. Mudd was
impressed by the thoroughness of the inspection. Based on Mudd' s experience,
Kearney sent a January 17, 1992, memorandum to Hicks noting that:

Compared to the ASCLD/LAB inspection, the initial internal
inspection conducted by the [Study Committee] lacked sufficient
depth to be a true reflection of what might be encountered during
a[n] actual ASCLD/LAB inspection. Therefore, before the
Laboratory Division applies for accreditation by ASCLD/LAB, a
more thorough and in-depth self-evaluation, based on
ASCLD/LAB accreditation criteria, should be undertaken by the
Laboratory Division.

Kearney also noted that the ASCLD/LAB inspection placed a great deal of
emphasis on documentation and the extent to which a laboratory followed
documented procedures. Hicks endorsed Kearney' s recommendation that the
Laboratory undertake a more thorough self-evaluation. During 1992, Mudd and
others at the FSRTC developed a formal Quality Assurance Program
Implementation Plan (the QA plan ) based primarily on the ASCLD/LAB
standards for accreditation.

Hicks approved the QA plan and distributed it to the section chiefs in
November 1992, with a memorandum noting that the plan would be
administered by the Quality Assurance and Safety Group (QASG) at the
FSRTC. The plan outlined the organizational structure, procedures, and
implementation schedule for a comprehensive, Laboratory-wide QA program.
In 1993, Hicks approved a recommendation that each unit chief designate a
quality control coordinator for each unit. The QASG also began developing a
program to audit quality assurance within the Laboratory. Training of
representatives from different units for the QA program was conducted in May
and November 1993. Over the next two years, the Laboratory continued to
refine its QA program and to conduct further internal reviews.

The Laboratory has also implemented several new policies since 1991 as it has
formalized its quality assurance program. In May 1991, Hicks approved
recommendations by the Study Committee that the Laboratory adopt policies
related to the marking and storage of evidence, the use of new technical
procedures, corrective actions, and open proficiency testing. Examiners know
they are being tested in open proficiency tests; in contrast, they are not aware
they are being tested in blind proficiency tests. In September 1991, Hicks
endorsed the Study Committee' s recommendation that individual units
establish manuals for protocols, quality control, training, and safety. Hicks
recirculated these policies in January 1994, along with a directive that each unit
chief prepare a memorandum describing his unit' s compliance.

Two reviews of the Laboratory were completed in the summer of 1994. In June
1994, the Audit Division of the OIG issued a report on the Laboratory. The
Audit Report noted that not all Laboratory units had implemented the QA plan
uniformly and recommended, among other things, that the Laboratory improve
its procedures for documenting casework. That summer, the QASG evaluated
the implementation of the QA plan by different units. The QASG review found
inconsistent policies and procedures among units on such matters as the unit
manuals, evidence handling policies, and protocol format. The review also
noted a lack of Laboratory-wide guidelines for casework documentation, report
writing, and proficiency testing.

In July 1994, FBI Director Louis J. Freeh appointed Milton Ahlerich to succeed
John Hicks as Laboratory Director after Hicks retired. Freeh directed Ahlerich
to improve quality assurance generally in the Laboratory and to actively pursue
accreditation. Consistent with this directive, and as a result of the Laboratory' s
internal reviews and the OIG audit, Ahlerich implemented several new policies.

In September 1994, Ahlerich issued a memorandum restating Laboratory-wide
policies for case review, documentation, evidence handling, and safety. In
January 1995, the Laboratory adopted revised policies for blind proficiency
testing. The next month, Ahlerich approved guidelines for standard operating
procedures in the Laboratory. In July 1995, new policies concerning the
preparation of case notes and the monitoring of testimony by Laboratory
examiners were adopted. In September 1995, Ahlerich approved a new open
proficiency testing program. That same month, Ahlerich also approved a new
policy for the control of evidence.

Implementation of a formal QA plan is important to the quality of the
Laboratory' s work and is a preliminary step to obtaining accreditation by
ASCLD/LAB. Many federal, state, and local forensic laboratories in the United
States have been accredited, including eight operated by the Drug Enforcement
Administration and three operated by the Bureau of Alcohol, Tobacco, and
Firearms. Laboratories in Australia, Canada, Hong Kong, New Zealand, and
Singapore also have been accredited by ASCLD/LAB.

The FBI Laboratory has not previously applied for accreditation, although the
FBI supported the formation of ASCLD and the later development of the
accreditation program. Former Laboratory Director Hicks told us that the FBI
had not sought accreditation during his tenure for reasons that included: (1) the
costs and time demands of the ASCLD/LAB inspection; (2) the fact that
accreditation was not required for examiners to testify; and (3) doubts by
management whether the Laboratory needed to be formally accredited.
ASCLD/LAB itself acknowledges that the fact that a laboratory chooses not to
apply for accreditation does not imply that the laboratory is inadequate or that
its results cannot be trusted.

To prepare for accreditation, in January 1995, the Laboratory created a separate
Quality Assurance Unit (QAU) as part of the FSRTC in Quantico, Virginia.
The QAU was charged with working with other units of the Laboratory and
management to review practices and procedures and to assure that the standards
for accreditation are met. James Mudd, who had worked on the Laboratory' s
quality assurance programs since 1990, was named the Quality Assurance
Program Manager.

The QAU gave a presentation about the accreditation process to all Laboratory
Division employees in March 1995. Subsequently, Ahlerich circulated a
memorandum dated May 31, 1995, asking all Laboratory employees to read the
ASCLD/LAB manual and to return a signed acknowledgment that they had
done so. The Laboratory initially planned to submit an application in 1995, but
that goal was not met because the QAU and other units of the Laboratory have
continued to review and revise various policies and procedures.

Accreditation will be an on-going process. It begins with a self-evaluation by
the applicant laboratory, which then submits an application to ASCLD/LAB.
Teams of inspectors, who are from other accredited laboratories, inspect the
applicant laboratory to determine if it meets specified criteria. After the
inspection report is prepared, the applicant laboratory has a one-year period in
which to remedy any deficiencies before ASCLD/LAB decides on the
application. Once a laboratory is accredited, it must submit annual accreditation
review reports to ASCLD/LAB. To remain accredited, a laboratory must
complete the entire application process again after five years.

The FBI advised the OIG in February 1997 that it now intends to submit its
written application to ASCLD/LAB later this year. Because the decision on
accreditation may not occur until as long as a year after the on-site inspection,
it will still be some time before the Laboratory obtains accreditation.

C. The Hiring of Non-Agent Examiners

While attempting to implement a formal QA plan and to otherwise prepare for
accreditation, the FBI Laboratory in the last few years has seen major changes
in its staff of forensic examiners. Until 1994, the Laboratory Division generally
required its examiners to also be FBI agents, except in the Latent Fingerprint
section, where the examiners have always been non-agent professional staff.
The FBI in 1993 reduced the number of agents assigned to FBI Headquarters in
Washington, D.C., a step that had a substantial impact on the Laboratory
Division. Many experienced agent examiners have left the Laboratory Division
and have been transferred to FBI offices around the country, where they are
working as investigative agents rather than as forensic examiners.

The Laboratory Division has begun training civilian professional support
examiners to replace some of the former agent examiners. New examiners have
been hired from other forensic laboratories and from personnel who have
worked in the Laboratory but were previously ineligible to become examiners
because they were not agents. As of September 1996, the Laboratory had
approximately 204 examiners, including 61 agent examiners and 143
professional support examiners. Of the latter, 102 had fully completed their
training and had been deemed qualified by the FBI to testify to their
examinations. Within the SAS, there were 68 examiners, including 38 agent
examiners and 30 professional support examiners. In contrast, at the end of
1993, there were 60 agent examiners in the SAS and 103 agent examiners in
the Laboratory Division overall, as well as 84 non-agent fingerprint examiners.

The reduced agent staff has continued to do case work while also assisting in
the training of new examiners. The Laboratory Division acknowledges that
these personnel changes have caused some disruption and delays in the
processing of cases. Over time, the FBI intends to have professional support
examiners occupy nearly all examiner positions in the Laboratory.

D. Changing Legal Standards for Admissibility and Disclosure

In the last several years, the legal standards for the admissibility of scientific
expert testimony and for pretrial disclosure concerning expert testimony have

significantly changed. Because these evolving standards are part of the context
in which the Laboratory operates, and they may affect the operations of
forensic laboratories in general, we comment briefly on them here.

The United States Supreme Court in June 1993 adopted a new standard for the
admissibility of scientific evidence in its decision in Daubert v. Merrill Dow
Pharmaceuticals, Inc. The Court there held that Federal Rule of Evidence 702
supersedes the general acceptance test established nearly 70 years earlier in
Frye v. United States. Rule 702, the Supreme Court concluded, does not require
general acceptance in the relevant scientific community as an absolute
prerequisite for the admissibility of scientific evidence. Instead, when presented
with proposed scientific testimony, the district court must make a preliminary
assessment of whether the reasoning or methodology underlying the testimony
is scientifically valid, and is therefore reliable in an evidentiary sense.

Daubert explicitly contemplates that the district courts will have a gatekeeping
role with respect to scientific expert evidence. While declining to adopt a
definitive checklist or test, the Supreme Court noted several factors a court
should consider. Those factors include: (1) does the theory or technique involve
testable hypotheses; (2) has the theory or technique been subject to peer review
and publication; (3) are there known or potential error rates and are there
standards controlling the technique' s operation; and (4) is the method or
technique generally accepted in the scientific community? The trial court must
also consider the relevance or fit of the proposed testimony by determining if
the reasoning and methodology can properly be applied to the facts at issue.

The application of Daubert in criminal cases will be clarified through further
court decisions, and we do not attempt in this Report to assess Daubert' s
implications for testimony by Laboratory examiners in particular areas. Nor do
we address how courts should distinguish scientific expert testimony from nonscientific expert testimony or what standards should determine the admissibility
of the latter.

The federal rules concerning the disclosure of expert testimony changed
effective December 31, 1993. Although the Federal Rules of Criminal
Procedure previously allowed defendants to obtain certain test results and
reports, some courts had held that the rules did not necessarily require pretrial
disclosure of the identity of expert witnesses who had not prepared reports.
Under the amended rules, the government, if requested by the defendant, must
provide a written summary of intended expert testimony. The summary must
describe the opinions of the witness, the bases and reasons therefore, and the
qualifications of the witness.

Expert testimony may be subject to increased scrutiny as a result of Daubert
and the changes in the disclosure rules. If so, these new legal standards will
have an impact on forensic laboratories as well as the courts. Laboratories will
need to provide sufficient information so counsel can make the required written
disclosures, including the bases and reasons for opinions and the expert' s
qualifications. Such information in turn will likely be part of the material
considered by district courts in those cases where Daubert is applied to evaluate
proposed expert scientific testimony.
II. Whitehurst and His Allegations

This section describes Agent Whitehurst' s background and career in the FBI
and provides a brief history of his allegations about misconduct in the
Laboratory.

Frederic Whitehurst entered college in 1965 at East Carolina University in
Greenville, North Carolina. In 1968, he interrupted his college studies to enlist
in the U.S. Army. Whitehurst served in the Army until 1972, when he was
honorably discharged after three tours of duty in Vietnam. In 1974, Whitehurst
received a bachelor' s degree in chemistry from East Carolina University. He
received a doctorate in chemistry from Duke University in 1980 and then
worked for two years as a research associate in chemistry at Texas A & M
University.

In 1982, Whitehurst joined the FBI. After completing training at the FBI
facility in Quantico, Virginia, he worked as a field agent on criminal
investigations in Houston, Sacramento, and Los Angeles. In 1986, he began
working in the Laboratory at FBI Headquarters in Washington, D.C., where he
was assigned to the Materials Analysis Unit (MAU). As a matter of FBI policy,
Laboratory scientists generally do not testify until they have been qualified as
examiners. Whitehurst was qualified by the Laboratory as an examiner in
forensic chemistry in 1987. From that time until 1994, his work focused on the
analysis of lubricants, explosives, and explosives residue.

After the explosives analysis program was transferred to the CTU in June 1994,
Whitehurst remained in the MAU, where he was reassigned to begin training to
become an examiner of paints and polymers. He maintains that the transfer of
the explosives analysis program to the CTU and his reassignment were in
retaliation for his allegations that Laboratory scientists improperly performed
analyses in certain cases, including the World Trade Center bombing case. In
1996, Whitehurst was reassigned to the newly-formed Hazardous Material
Response Group (HMRG) after the MAU' s paint and polymer analysis
program was transferred to the CTU. In the HMRG, Whitehurst conducted
studies related to environmental crimes investigations while he also continued
to work on becoming qualified as an examiner in paints and polymers.

Whitehurst' s complaints about other FBI scientists arose soon after he joined
the Laboratory. Whitehurst trained as an examiner under Terry Rudolph, who
also has a doctorate in chemistry and who was the Laboratory' s senior
examiner in the field of explosives residue analysis from 1977 to 1988.
According to Whitehurst, Rudolph was very sloppy in his work habits.
Whitehurst maintains that Rudolph kept his work area dirty and in disarray, that
he was indifferent to problems of contamination, and that he reached
conclusions that were not supported by adequate analyses. Whitehurst also
maintains that he voiced his concerns about Rudolph to the MAU chiefs and
others in the Laboratory to no avail.

In May 1989, Whitehurst communicated his concerns about Rudolph' s work to
persons outside the Laboratory during the trial in United States v. Psinakis. In
that case, Whitehurst reexamined evidence that Rudolph in 1982 had

determined contained traces of the explosive PETN. While the trial was under
way, Whitehurst approached a defense expert and told him that he thought the
identification of PETN on the evidence might have resulted from contamination
due to Rudolph' s work habits. Whitehurst did not tell the prosecutor or
Rudolph about his misgivings before he spoke with the defense expert.

After returning to the Laboratory from the Psinakis trial, Whitehurst advised his
unit chief and the Laboratory Director of his actions because he was concerned
that he may have violated FBI policy. In August 1989, the FBI' s Office of
Professional Responsibility (FBI OPR) began an investigation of Whitehurst' s
actions in the Psinakis trial. John Hicks, the Laboratory Director, wrote to FBI
OPR in November 1989, recommending that Whitehurst receive an oral
reprimand. Hicks later repeated this recommendation in the fall of 1990.
Consistent with FBI procedures, the FBI Administrative Service Unit (ASU)
reviewed the matter to determine an appropriate sanction. On October 26, 1990,
Whitehurst was suspended for one week without pay and placed on six months
probation.

In July 1989, the Assistant United States Attorney (AUSA) in Psinakis wrote to
Laboratory Director Hicks and stated that Rudolph' s analysis was deficient,
that the judge had nearly excluded Rudolph' s testimony, and that the defense
had seriously impeached Rudolph. This was the first formal, written complaint
against Rudolph. It came from a reliable source, independent of Whitehurst.
The prosecutor did not criticize Whitehurst, but instead noted that he appeared
sincerely committed to the integrity of the judicial process.

As a result of the letter from the prosecutor, MAU chief Jerry Butler reviewed
200 of Rudolph' s cases and found administrative shortcomings including
missing notes and lack of documentation. After Butler recommended a more
thorough technical review, CTU chief Roger Martz reviewed 95 of Rudolph' s
case files. In August 1989, Martz reported that Rudolph' s analyses supported
the results and that Martz found no technical errors in the final reports. The
Laboratory concluded that further inquiry was not required. Despite the
prosecutor' s written complaint, the Laboratory did not then review a transcript
of Rudolph' s testimony in Psinakis, and Rudolph was never disciplined for his
actions in that case.

In December 1990, Whitehurst again complained within the Laboratory about
Rudolph' s work habits and also alleged that Rudolph was a racist, had abused
annual leave, had perjured himself, and had lied to an AUSA. As a result, FBI
OPR opened an investigation on Rudolph and the Laboratory in March 1991
directed MAU Chief James Corby to review a number of Rudolph' s cases.
After reviewing 200 cases, Corby found that 57 lacked sufficient information to
support certain of Rudolph' s conclusions. Based on this review, in April 1992,
SAS Chief Kenneth Nimmich recommended to Director Hicks that Rudolph
review the 57 cases and attempt, based on his recollection or personal notes, to
add documentation to support the findings and then prepare a memorandum for
each file describing any additional information. Nimmich also recommended
that Rudolph be severely reprimanded for his casework. Instead, Director Hicks
admonished Rudolph orally at a meeting in which Hicks also gave Rudolph a
cash bonus.

After the FBI OPR completed its investigation, the FBI Administrative
Services Division (ASD) advised Rudolph in June, 1982 that the inquiry had
not developed facts warranting any administrative action. In March 1993,
Nimmich reported to Hicks that Rudolph had reconstructed 57 files and that the
action taken was documented in the files. Nimmich further recommended that
the matter be closed. Whitehurst apparently was not formally told by
Laboratory management about the results of the FBI OPR investigation or the
various reviews of cases worked by Rudolph.

In the spring and summer of 1993, Whitehurst became embroiled in
controversies within the Laboratory about the analysis of certain evidence from
the February 1993 bombing of the World Trade Center. Briefly stated, he
contended that Lynn Lasswell improperly labeled certain peaks on the output
from an Ion Mobility Spectrometer (IMS) as indicative of the explosive urea
nitrate; that Lasswell incorrectly concluded that urea nitrate could be identified
with the use of mass spectrometry in a report approved by his Unit Chief Roger
Martz; and that another examiner had pressured Whitehurst to remove
qualifying language from his conclusions in a report. In July 1993, Whitehurst
sent Hicks memoranda describing these complaints and also asserting that
Lasswell and Martz were not qualified to examine explosives.

Whitehurst' s allegations first came to the attention of the OIG in the fall of
1993 during an OIG audit of the Laboratory Division. When OIG auditors
interviewed Whitehurst in October and December 1993, he described his
complaints about other Laboratory personnel in the World Trade Center
investigation and Rudolph. He later wrote two memoranda to OIG auditor Dan
Strohl in December 1993 that primarily concerned the World Trade Center
case.

The first trial related to the bombing of the World Trade Center began in
September 1993. The government submitted copies of the Strohl memoranda to
the district court, which in turn directed the government to give the memoranda
to the defense attorneys and to allow Whitehurst to be interviewed by them.
Defense counsel interviewed Whitehurst in January 1994; the transcript of the
interview was placed under seal by the district court. Neither the prosecution
nor the defense called Whitehurst as a witness at this trial.

In February 1994, Whitehurst' s attorney, Stephen Kohn, wrote to the FBI
describing various allegations regarding the Laboratory and stating that an
investigation should be conducted by a special counsel. FBI General Counsel
Howard Shapiro responded to Kohn that the FBI Office of General Counsel
(FBI OGC) would conduct an investigation itself. Over the next several
months, the FBI OGC interviewed Whitehurst and other persons, reviewed
documents, and reviewed the previous internal investigations. The FBI OGC
investigation is described in a May 1994 memorandum to Shapiro from Steven
Robinson, the Principal Deputy General Counsel, and John Sylvester, an
Assistant General Counsel. Robinson and Sylvester concluded that, except for
the Rudolph matter, the Laboratory had fully investigated each of Whitehurst' s
allegations and taken appropriate action. Regarding Rudolph, the authors of the
May 1994 memorandum noted that they did not think his work product would
withstand significant scientific or legal scrutiny and they recommended that
MAU chief James Corby review all of Rudolph' s casework.
During the spring of 1994, the OIG Audit Division was completing a draft
report based on its review of the Laboratory. In May 1994, the Audit Division
referred the allegations made by Whitehurst to the OIG Investigations Division
(OIG INV). That month, OIG INV agents interviewed Whitehurst, who

repeated allegations he had made earlier to OIG audit personnel. After meeting
with the FBI OGC and reviewing the May 1994 memorandum by Robinson and
Sylvester, OIG INV concluded that the issues raised by Whitehurst were
largely being addressed by either the OIG audit process or the FBI OGC
investigation.

OIG INV did, however, decide to review further Whitehurst' s allegations that
conclusions or dictation he had prepared as an auxiliary examiner had not been
accurately incorporated by EU examiner J. Thomas Thurman into final
Laboratory reports. This was an issue that the FBI OGC had also determined
merited further investigation. In the fall of 1994, the FBI gave the OIG copies
of reports prepared by Thurman that incorporated dictation by Whitehurst.
After reviewing these reports, Whitehurst identified to the OIG what he
maintained were material alterations in several of his dictations. In January
1995, the OIG interviewed James Corby, then the unit chief of the MAU, who
had also reviewed Thurman' s reports and concluded that some of Whitehurst' s
dictations had been significantly changed.

OIG INV sought to interview MAU examiner Steven Burmeister to determine
if his dictation, like Whitehurst' s, had been changed in reports prepared by
Thurman. Because Burmeister was involved in several on-scene bombing
investigations, this interview did not occur until May 1995. In the interview,
Burmeister did not identify any significant changes to his dictation, but he did
support Whitehurst' s allegations that some CTU examiners in the World Trade
Center case had examined explosives residues without having been qualified by
the Laboratory to perform such examinations and they had incorrectly
concluded that urea nitrate had been identified in certain evidence.

Based on the Burmeister interview and additional correspondence from
Whitehurst, the OIG concluded that it should review Whitehurst' s allegations
more broadly. Over the spring and summer of 1995, the OIG discussed with
FBI OPR possibly conducting a joint investigation. In July 1995, the Inspector
General determined that the OIG should expand its investigation to include
those allegations previously being reviewed by FBI OPR. FBI Director Freeh
agreed with this determination and advised the OIG that the FBI would
cooperate fully in the investigation.

Whitehurst' s allegations became publicized in the late summer and early fall of
1995. On August 14, 1995, he was called by the defense to testify in the trial of
Sheik Omar Abdel-Rahman, who was charged with various co-defendants with
a conspiracy that included the World Trade Center bombing as an overt act,
other bombings in New York, and the murder of two individuals. In testifying,
Whitehurst claimed that he had been pressured to bias his interpretation of
evidence in the World Trade Center investigation and that initial reports about
the presence of urea nitrate were incorrect.

Nearly one month later, on September 12, 1995, defense attorneys subpoenaed
Whitehurst to testify in People v. O.J. Simpson, the California state court trial
of O.J. Simpson for the murders of Nicole Brown Simpson and Ronald
Goldman. Shortly thereafter, Whitehurst made several media appearances,
appearing on the television programs Prime Time Live on September 13, 1995;
The Larry King Show on September 14, 1995; and The Today Show on
September 25, 1995. An article about Whitehurst' s allegations also appeared in
the September 25, 1995, issue of Newsweek magazine.

In response to the media attention, the FBI issued a press release on September
13, 1995. The release noted that Whitehurst had raised a variety of concerns
about forensic protocols and procedures employed in the FBI Laboratory, and
stated that the FBI had vigorously investigated his concerns and is continuing
to do so. The FBI press release further stated that the FBI had reviewed more
than 250 cases involving prior work in the Laboratory and to date had found no
evidence tampering, evidence fabrication, or failure to report exculpatory
evidence. The press release observed that [a]ny finding of such misconduct will
result in tough and swift action by the FBI. The release also stated that the FBI
was fully cooperating with the OIG investigation of Whitehurst' s allegations.

On September 16 and 17, 1995, defense attorneys and prosecutors in the
Simpson case interviewed Whitehurst regarding Roger Martz and related
matters. In July 1995, Martz had testified in the Simpson trial that he had
examined certain blood samples and concluded that they did not contain blood
that had been preserved with the compound EDTA. The defense in Simpson

proposed calling Whitehurst to testify that Martz had a habit or custom of
biasing test results to support the prosecution.

In an order issued September 20, 1995, California Superior Court Judge Lance
Ito ruled that Whitehurst would not be allowed to testify. Judge Ito noted that
Whitehurst had no direct knowledge concerning the EDTA testing in the
Simpson case and that whether Martz was qualified to conduct explosives
residue testing in other cases had no direct bearing on the EDTA testing.

III. The OIG Investigation

On September 18, 1995, the Department of Justice announced that the OIG was
investigating allegations by Whitehurst and that the OIG would select a panel
of forensic scientists to assist in the investigation. The OIG invited both the FBI
and Whitehurst to suggest names of possible outside experts. Laboratory
Director Milton Ahlerich responded with suggestions and also stated that the
Laboratory welcomed a review of its work and would cooperate completely
with the OIG to facilitate whatever review it deemed appropriate. Whitehurst
also said he welcomed an outside review of his allegations, and he too
suggested experts who might participate.

In identifying experts to assist in the investigation, the OIG sought scientists
who are respected internationally and who have expertise both in the relevant
scientific areas and in the operation of scientific laboratories. On November 8,
1995, the OIG announced that five scientists would serve as consultants in the
investigation. Those scientists, their positions, and their qualifications are
described below:

o

Mr. Nicholas S. Cartwright is currently the Officer in Charge of
the Science & Technology Branch of the Royal Canadian
Mounted Police (RCMP) and the Manager of the Canadian Police
Research Centre. He served previously as the Chief Scientist-

Chemistry in the RCMP Central Forensic Laboratory and has
extensive experience in the forensic applications of analytical
chemistry, including explosives residue, paints, and fire debris. He
chairs the International Civil Aviation Organization' s Ad Hoc
Group of Specialists on the Detection of Explosives and is a
member of the Federal Aviation Administration' s Security
Research & Development Scientific Advisory Panel.

o

Dr. Paul B. Ferrara is the Director of the Division of Forensic
Science for the Commonwealth of Virginia. A nationally
recognized expert in the field of DNA analysis, Dr. Ferrara serves
on the National DNA Advisory Board. He is the past chairman of
ASCLD/LAB and was a member and consultant, respectively, to
the 1992 and 1996 National Research Council Committees on
DNA Technology in Forensic Science.

o

Mr. Douglas M. Lucas is the retired Director of the Centre of
Forensic Sciences of the Province of Ontario, Canada. He is a past
president of the American Academy of Forensic Sciences
(AAFS), and served for twelve years as the Chair of the AAFS
Ethics Committee. He also is a past president of ASCLD and the
International Association of Forensic Sciences.

o

Dr. Gerard Murray, a Principal Scientific Officer of the Forensic
Science Agency of Northern Ireland, is one of the world' s leading
authorities in the analysis of explosives residue. He has testified in
terrorist cases in the United States, Germany, the Republic of
Ireland, and the United Kingdom. In 1994, he was named an
Officer of the Order of the British Empire.

o

Dr. Richard Schwoebel retired in 1995 from the Sandia National
Laboratories in Albuquerque, New Mexico, where he had held
numerous posts in a thirty-three year career. As Director of the
Surety Assessment Center, he was responsible for nuclear weapon

safety and reliability. While serving as Director of Components at
Sandia, Dr. Schwoebel led a team of scientists that provided the
General Accounting Office with an independent assessment of the
1989 explosion that killed 47 crewmen aboard the U.S.S. Iowa.

Four attorneys from the Department of Justice also played central roles in the
investigation. These attorneys are Barry Rand Elden, an Assistant United States
Attorney and the Chief of Appeals for the United States Attorney' s Office for
the Northern District of Illinois; Scott Bales, an Assistant United States
Attorney in the District of Arizona; Nicole Cubbage, a prosecutor in the Fraud
Section of the Justice Department' s Criminal Division; and Lawrence Lincoln,
an Assistant United States Attorney in the Western District of Washington.
Also assisting in the investigation were several personnel from the OIG,
including Inspector Alison Murphy and Special Agents Robert Mellado,
Kimberly Thomas, Joseph LeStrange, and Judson Spring.

After the investigative team was assembled in late 1995, the OIG began
obtaining pertinent documents from the FBI and continued reviewing
communications received from Whitehurst. Ultimately, the FBI provided more
than 60,000 pages of documents in response to requests from the OIG,
including case files, work notes, test results, policies, internal memoranda, and
other materials. The OIG' s investigative team also interviewed individuals who
were identified as possibly having relevant information.

Interviews were conducted by the attorneys and OIG special agents working on
the investigation. In some instances, one or more of the scientific experts
attended the interviews and asked questions themselves. Certain witnesses,
including Agent Whitehurst, were interviewed under oath, and their interviews
were transcribed. Other interviews were summarized in memoranda prepared
by OIG special agents. More than 100 witnesses were interviewed as part of the
investigation, and several were interviewed more than once. The experts and
attorneys met in Washington, D.C., beginning in late 1995 and continuing
through early 1997 to discuss the course of the investigation, additional
information to be obtained, and our conclusions.

After a draft of the Report was completed on January 21, 1997, the OIG invited
the FBI to review the draft for factual accuracy. The FBI provided seventy-two
pages of written comments on February 12, 1997 and twelve additional pages
of comments on March 24, 1997. The OIG also solicited comments on parts of
the draft from certain United States Attorneys' Offices or others who had been
involved in the prosecution of particular cases. Agent Whitehurst began
reviewing a draft of the Report, but declined to provide comments after the
OIG refused to allow his private attorney to also review the draft. Based on the
responses received from the FBI and others, the experts and attorneys again
met and considered whether revisions were appropriate.

This report is the result of the foregoing investigative efforts.

#####

PART THREE: ANALYSIS OF PARTICULAR MATTERS

SECTION A: ALLEGATIONS CONCERNING TERRY RUDOLPH

I. Introduction

Since Whitehurst joined the Laboratory in 1986, he has repeatedly complained
about SSA Terry Rudolph, who preceded Whitehurst as the Laboratory's senior
examiner of explosives residue. Whitehurst alleges that Rudolph was
incompetent and that the Laboratory sought to ignore or cover up his
deficiencies. In this section, we address allegations that Whitehurst and others
have made concerning Rudolph, and we evaluate the Laboratory's actions in
response to those allegations.

Terry Rudolph worked as an explosives residue examiner in the Laboratory
from 1979 until 1988, when he began teaching at the FBI Academy in
Quantico, Virginia. After Whitehurst joined the Laboratory in 1986, he worked
with Rudolph to become qualified to examine explosives residue. Whitehurst
soon began complaining to his unit chiefs that Rudolph was sloppy in that he
maintained a messy work area and performed inadequate examinations.

In 1989, Whitehurst voiced his concerns about Rudolph for the first time
outside the Laboratory. During the trial in United States v. Psinakis, Rudolph
was expected to testify about his identification of the explosive PETN on
certain evidence. After the prosecutor learned the defense intended to challenge
Rudolph's analyses, Whitehurst was asked to re-examine the evidence.
Whitehurst also found PETN in his examinations, and he attended the trial
prepared to testify. Without first raising his concerns with the prosecutor or
Rudolph, Whitehurst approached a defense expert and said he thought the FBI's

identification of PETN may have resulted from contamination of the evidence
due to Rudolph's sloppy work habits.

Whitehurst ultimately did not testify at the trial. In Part Four of this Report, we
discuss our evaluation of his conduct and his claim that the FBI improperly
retaliated against him by suspending him for one week for his actions.

Rudolph did testify in Psinakis. At the end of the trial, the jury acquitted the
defendant. In July 1989, the prosecutor, Assistant United States Attorney
(AUSA) Charles Ben Burch, wrote to the FBI complaining that Rudolph's
analysis was deficient, that the judge had nearly excluded his testimony, and
that Rudolph had been seriously impeached by the defense.

In August 1989, the Laboratory completed two internal reviews of Rudolph's
casework. MAU Chief Jerry Butler reviewed 200 cases, found numerous
administrative shortcomings, and recommended a further in-depth review. CTU
Chief Roger Martz reviewed 95 case files, reported that Rudolph's analyses
supported the results and that Martz found no technical errors, and
recommended there be no further technical review of Rudolph's cases. The
Laboratory concluded that no further action concerning Rudolph was
necessary.

In 1991, the FBI OPR opened an investigation concerning Rudolph after
Whitehurst complained not only about his sloppy work but also that Rudolph
had perjured himself, lied to an AUSA, and abused annual leave, and that
Rudolph and his technician Edward Bender were racists. As a result of
Whitehurst's allegations, the Laboratory also initiated a third review of
Rudolph's case files, this one by MAU Chief James Corby.

After reviewing 200 cases, Corby reported that he found 57 lacking adequate
documentation or information to support the stated conclusions. CTU examiner
Lynn Lasswell also reviewed the 57 cases identified by Corby. In April 1992,

SAS Chief Kenneth Nimmich advised Laboratory Director John Hicks that
Rudolph would be asked to review the 57 cases and, if possible, reconstruct
from his personal recollection, diaries, or other personal notes sufficient
documentation for the findings reported. Nimmich stated that a memorandum
should be prepared for each file describing any additional information.

Nimmich also recommended in April 1992 that Rudolph be severely
reprimanded for his lack of professionalism and inattention to detail. Instead,
Hicks admonished Rudolph orally at a meeting in which Hicks also gave
Rudolph a cash incentive award. In June 1992, the FBI advised Rudolph that
the FBI OPR inquiry had not developed facts warranting administrative action.
In March 1993, Nimmich reported to Hicks that Rudolph had reconstructed the
57 files and that Nimmich recommended the matter be closed.

Within the Laboratory, MAU Chief Corby advocated a further review of
Rudolph's case work. In May 1994, after investigating Whitehurst's allegations
on several matters, the OGC recommended that Corby review all of Rudolph's
cases. After reviewing 654 of Rudolph's cases, Corby reported in November
1995 that 24% contained errors or were administratively or technically
incomplete. Rudolph disputed these findings. He retired from the FBI in June
1996.

To investigate the Rudolph matter, we conducted sworn and transcribed
interviews of Edward Bender, Steven Burmeister, Charles Calfee, James
Corby, Terry Rudolph, Roger Martz, Kenneth Nimmich, and Frederic
Whitehurst. We also interviewed other witnesses, including Milton Ahlerich,
Roger Asbury, Ben Burch, John Dietz, Frank Doyle, John Hicks, James
Kearney, Lynn Lasswell, Randy Murch, Robert O'Brien, Ralph Regalbuto,
Steven Robinson, John Sylvester, and Don Thompson. We reviewed all
available documents produced by the FBI pertaining to the Psinakis case, the
reviews of Rudolph's case files, and the relevant FBI OPR investigations.

Based on our investigation, we conclude that, in Psinakis and in numerous
other cases, Rudolph did not competently or professionally perform his work as

an examiner. As is discussed infra in Part Three, Section H9, we also note
similar problems in certain work that Rudolph did in the UNABOM case. We
further conclude that the Laboratory did not adequately investigate or resolve
the concerns about Rudolph after the Psinakis prosecutor's July 1989 letter,
after Butler's 1989 review, or after Corby's 1992 review. We recommend that a
notation concerning this Report's findings be included in each of Rudolph's
case files. We further recommend that the FBI not employ Rudolph in any
capacity in the future.

II. The Psinakis Case

A. Factual Background

This case involved an American citizen suspected of smuggling explosives to
the Philippines. During the investigation, a large quantity of detonating cord
that had been stripped, or cut along the side so the explosive inside could be
removed, was found in the suspect's garbage. At the Laboratory, Rudolph
examined a white powder extracted from the cord and determined, through the
use of x-ray powder diffraction (XRD), that it was PETN, an explosive
commonly found in detonating cord. The suspect's home was then searched,
and FBI agents found tools that were submitted for examination to ascertain if
they had been used to strip the cord and extract the powder.
In January 1982, Rudolph conducted a liquid chromatography test on white
powder removed from the tools and concluded it was PETN. He issued AE
dictation stating that PETN was found on the tools, including pliers and a utility
knife. A Laboratory report dated February 18, 1982, similarly stated that the
identified tools had been instrumentally examined and determined to contain
PETN. Neither Rudolph's dictation nor the final report identified the
instrumental analyses performed. This report was given to the prosecutor and
turned over to the defense.

In 1989, Rudolph was called to testify at the Psinakis trial. AUSA Burch recalls
that Rudolph assured him that the examinations were sufficient, conclusive, and

could easily be used at trial. Burch learned through discovery that the defense
was prepared to offer expert witnesses to challenge Rudolph's conclusions. As
a result, Burch retrieved certain evidence from the court's custody and sent it
back to the FBI Laboratory for additional testing. By this time, Rudolph was no
longer working in the Laboratory as an examiner. Whitehurst conducted the
tests and confirmed the presence of PETN by the use of gas
chromatography/mass spectrometry. He then went to San Francisco so he could
testify about his results if needed.

In late May 1989, the court in Psinakis held an evidentiary hearing on the
admissibility of expert testimony. While waiting to testify, Whitehurst
approached a defense expert and told him he had concerns about the reliability
of Rudolph's conclusions. Whitehurst told the defense expert that Rudolph's
work area had always been very dirty and possibly contaminated, and he
suggested that this sloppy behavior could have been the source of the explosive
found on the evidence. Whitehurst did not tell the prosecutor or Rudolph about
his misgivings before speaking with the defense.

At the May 1989 hearing, the court did not allow Whitehurst to testify about his
own test results because the court concluded the government had improperly
removed the evidence from the court's custody for further testing. Burch
mistakenly thought the court clerk had the judge's approval to release the
evidence. Defense counsel, however, asked the court to have Whitehurst held
on call because someone at the FBI had doubts about Rudolph's testimony.
Whitehurst ultimately did not testify.

Rudolph testified at the evidentiary hearing about his identification of PETN on
the tools. He acknowledged that the only instrumental technique he had used
was liquid chromatography (LC). He agreed with statements in a treatise that
LC most often provides only a tentative confirmation and that a final
confirmation requires use of an ancillary method such as mass spectrometry
and infrared spectroscopy. Rudolph admitted he had not used any confirmatory
techniques in addition to the LC test.

To counter the defense argument that LC alone was insufficient to identify
PETN, Burch elicited from Rudolph that his opinion rested on many other
factors. Rudolph noted that the cord found in the garbage was found to contain
PETN; that the tools were of the type used to strip detonating cord; that he had
examined microscopically a known sample of PETN and white powder from
the tools and they compared essentially identically ; that he tested the powder
with diphenylamine and it gave a blue color in just seconds which is another
factor that tells me that I'm dealing with PETN ; that the sample was
immediately soluble in a mixture of acetonitrile and water, again, a factor, an
indicator that we are dealing with the same material [PETN] ; and, additionally,
I took into consideration that in the time that I had done these analysis I have
never ever encountered another explosive that interfered with the analysis of
PETN on this [liquid chromatography] system.

The court asked Rudolph why the diphenylamine test and other tests he
described were not documented in his notes. Rudolph responded, When I
examine a case I put in my notes things that are important to me when I . . .
give testimony. I don't write my notes for the United States Attorney. I don't
write my notes for the defense. I write my notes for myself. Rudolph said he
had done thousands of tests since 1982 and could not possibly remember them
all. The court asked, Isn't that one of the reasons you keep notes? Rather than
respond directly, Rudolph said this case was different because he and his
technician remembered it specifically. Rudolph also said he often used this case
as an example in teaching classes.

On further examination by the defense, Rudolph was asked the following:

Q: Mr. Rudolph, did I understand you to say that your opinion is
based, in part, on the suggestion that PETN was found in the
garbage?

A: Yes.

Q: And therefore, that helped you conclude what the traces were
on tools inside the house?

A: Yes.

Rudolph also stated the following:

Q: In other words, what you've done is take a liquid
chromatography and then bolster it or add to it by your own
observations about the state of the physical evidence in the case;
is that right?

A: That would be correct.

Rudolph admitted that liquid chromatography was not used to identify total
unknowns. He said that as a chemist he had learned to do things in an expedient
way, but yet still efficient. As an example, he said he would confirm the
identity of PETN in blasting caps by liquid chromatography, because I could do
a liquid chromatography analysis in a few minutes while it would take 45
minutes to do x-ray powder diffraction. Regarding the evidence in Psinakis,
Rudolph stated that there is absolutely no doubt that that material was PETN,
absolutely none. I felt as strong about that identification that that material on
those blades were PETN as I have in any analysis I have ever done.

After the evidentiary hearing, the defense urged the court to exclude the
evidence because all the witnesses, including Rudolph, agreed that LC was not
an adequate test to identify PETN. Without directly countering this argument,
AUSA Burch noted that the FBI had recently tested the powder from the utility
knife by the use of mass spectrometry and another test and determined it was
PETN. Burch also argued that Rudolph based his opinion on information in

addition to the LC test. Burch stated that Rudolph doesn't purport to be
somebody who is simply a chemist testifying. He is a forensic examiner of
materials. He uses chemistry as one of the bases for his opinion. Burch argued
that Rudolph's testimony should be admitted and the jury could assess its
weight.

The court ruled:

Well, I'll permit the testimony of Mr. Rudolph with the
understanding that if he persists in making his statement that he is
as positive about this as he is that the sun rose this morning, I may
very well make some comment to the jury to put the basis for his
opinion in somewhat better perspective.

So he better be alerted to the fact that his testing was not totally
adequate.

I thought for a time that if he used this case, as he says, as a
subject matter of his courses of instruction, that it might have
stood for a different proposition than he has had it stand for up to
now; that proposition being that even with the FBI lab,
completion of all necessary processes in investigations is an
awfully good idea, and leaving things undone because it takes
more than 45 seconds to do them is not one of the smarter things
to do.

But this jury, I think, is capable of appraising what he has done
and what he hasn't done. And it is, in large degree, a matter of
weight. And I'll permit him to testify.

After this ruling, the defense moved to exclude Rudolph's testimony because it
offered an investigative opinion rather than a scientific one. The defense
attorney stated, [Rudolph] bolsters his opinion, as I understand it, by saying I
was a trained FBI agent and, therefore, I look things over and I see certain
things and this helps me in my opinion.' The court responded, [H]e is entitled to
tell the jury what he based his conclusion on. Some of these things may be a
little strange for a scientist, but he will be testifying as a scientist, not as an FBI
agent.

Rudolph later testified at the Psinakis trial. On direct examination he testified
that he identified PETN through the use of LC in conjunction with other factors
which indicated to him that he was dealing with PETN. On cross-examination,
Rudolph admitted that he had other instruments available to confirm the
presence of PETN but that he did not use them. Rudolph agreed that what
happened in this case is that [he] used one method which is used to separate
substances, not to identify them, and [he] didn't use anything else in the whole
FBI lab. On redirect AUSA Burch asked Rudolph, [W]as your opinion that the
material was PETN based solely upon the liquid chromatography test that you
ran? Rudolph answered, No it was not, or I would have not -- If it was just
based solely on that, I would have used some confirmatory techniques.

The trial ended in an acquittal.

In a four-page letter dated July 8, 1989, AUSA Burch informed Laboratory
Director John Hicks that Rudolph's performance in the Psinakis case was
deficient. Burch stated, I believe part of the reason for the acquittal stemmed
from some serious questions that arose concerning the handling of exhibits
involving trace or residue amounts of explosives and the analysis of these
exhibits at the FBI laboratory. Burch complained that Rudolph relied on the
hearsay reports of a field agent in rendering an expert opinion that evidence
contained PETN. Burch observed:

The first deficiency in Rudolph's analysis seems obvious. Relying
on the hearsay views of field agents in rendering an opinion as to

the presence of a chemical compound seems obviously wrongheaded. The FBI chemist is being asked to independently
ascertain the existence of a substance not just regurgitate
information he has received from the field. Secondly, the
information from the field agents may be wrong or so speculative
as to be accorded little weight. Finally, using any basis other than
instrumental analysis for an opinion as to the presence of a
chemical or compound leads, [a]s in this case, to insufficient
instrumental testing.

(Emphasis in original).

Rudolph, Burch stated, used liquid chromatography as the only chemical test to
ascertain the presence of PETN, and he failed to perform confirmatory tests.
Burch noted that the defense called a world-renowned expert who testified that
liquid chromatography was the equivalent of a presumptive test that did not
rule out the possibility of compounds other than PETN. Burch noted that the
case raised serious questions about the Laboratory's procedures:

The first problem is that there appears to have been no protocol
establishing what analytical/instrumental tests were to be
performed in order to identify trace elements on items. Second, it
appears that no peer review or other review process existed in
order to confirm the sufficiency of instrumental analysis and the
accuracy of the results obtained. Had such a review existed in
1982, it is likely that the inadequacy of Rudolph's procedures
might have been detected.

In this letter, Burch did not criticize Whitehurst, but instead observed that he
appeared sincerely concerned about the integrity of the judicial process.

Hicks responded to Burch on July 28, 1989, by writing, I share your concerns
and as a result of this matter, I have instituted an internal audit of the protocols
used in the identification of explosive residues.

B. Analysis of Rudolph's Conduct in Psinakis

In reviewing Rudolph's laboratory work and testimony in Psinakis, we
identified several significant problems. As noted later in this section, we found
similar problems in his work on other cases.

1. Forming Opinions on a Non-Scientific Basis

Rudolph acknowledged that his identification of PETN on the tools was based
in part on the fact that stripped detonating cord was found in the defendant's
garbage. In his interview with the OIG, Rudolph observed that given this
information, he presumed the material on the knife was PETN and he used LC
simply as a confirmatory test.

Rudolph's approach reflects a fundamental misunderstanding of the role of a
forensic scientist. As an investigative matter, the FBI had good reason to
suspect that the defendant had used the tools to strip the detonating cord found
in his garbage. As a forensic scientist, however, Rudolph could not identify
PETN based in whole or in part on the field agent's suspicions. Rather, his
conclusions had to be based on a scientific examination.

Rudolph failed to distinguish between the separate and distinct roles of an
investigator and a forensic scientist. With his academic training, Rudolph
should have known not to state his scientific conclusions more strongly than
could be supported by the underlying analytical results. Had he recognized this
fact, he would have acknowledged in his Laboratory reports and testimony that

the LC tests he performed gave results consistent with, but did not necessarily
identify, the presence of PETN on the tools.

2. Biasing Reports

Whitehurst has generally alleged that FBI examiners in explosives-related cases
have purposefully slanted reports to favor the prosecution. Although he did not
make this complaint about Psinakis specifically, the case merits comment on
this issue. At best, Rudolph's explanation for his opinion in Psinakis reflects
incompetence. Given the tests that Rudolph described, he could only say the
results of his 1982 examinations were consistent with the presence of PETN.
By opining that PETN had been found on the tools, Rudolph overstated the
significance of his analytical results in a way that supported the government's
theory of the case. This overstatement partly reflected that Rudolph
inappropriately relied on information from the field agent in reaching his
forensic conclusions.

3. Inadequate File Documentation

Rudolph failed to adequately document the work he claimed that he had done
in Psinakis. At the trial, he testified that he prepared his notes for his own use
and not for the defense or the prosecutor. These remarks reflect a basic
misunderstanding of the purpose and importance of adequately documenting
case files. The notes should allow someone to understand the analyses done and
the basis for the conclusions reached by the examiner. The absence of such
notes, as Psinakis illustrates, means that an examiner may not be able credibly
to defend his or her conclusions at a later date. His supervisors should also be
faulted for approving his AE dictation in the absence of adequately documented
files.

4. Lack of Confirmatory Tests and Protocols

Because it is well understood in the scientific community, Rudolph should have
recognized the need to perform a confirmatory test in addition to the LC before
concluding that PETN was found on the tools. His failure to do so reflects not
only that he improperly based his opinion on the assumption that the defendant
had stripped PETN from the detonating cord found in the garbage, but also that
Rudolph did not follow any identified protocol in examining the evidence.

5. Conclusion

We conclude that Rudolph's performance in Psinakis was wholly inadequate
and unprofessional. We do not find a factual basis to conclude that he
intentionally overstated or biased his conclusions.

III. The Laboratory's 1989 Reviews of Rudolph's Casework

In August 1989, the Laboratory conducted two partial reviews of Rudolph's
casework. Based on those reviews, Laboratory management concluded that
further action was not required. As explained below, those reviews were not
adequate to resolve concerns about Rudolph's work in Psinakis or in other
cases.

A. Factual Background

After receiving Burch's letter complaining about Rudolph, Hicks gave it to SAS
Chief Kenneth Nimmich and instructed him to review Rudolph's casework.
Nimmich in turn asked MAU Chief Jerry Butler to review Rudolph's work in
Psinakis and to also review a representative sample of Rudolph's cases to
determine if appropriate analytical techniques were applied and properly

performed. Butler concluded that the analytical procedures used in Psinakis
were weak but laboratory accepted practice in 1982.

Over a period of several weeks, Butler reviewed Rudolph's work in
approximately 200 cases and prepared a memorandum dated August 2, 1989,
which described the preliminary review. Butler found numerous administrative
shortcomings in the files such as insufficient notes, missing charts and weak
analytical procedures. In light of the itemized weaknesses found in Rudolph's
work and the potential serious impact these types of weaknesses could have on
the proper administration of justice, Butler recommended that an examiner
from the CTU do an in-depth review of Rudolph's case work. Rudolph told the
OIG that Butler also directed him to return to the files any notes and charts that
Rudolph had retained himself.

Nimmich agreed with Butler's recommendation and orally asked CTU Chief
Roger Martz to conduct the further review. Over approximately two weeks,
Martz reviewed 95 cases in which Rudolph had worked as a principal or an
auxiliary examiner. In an August 16, 1989, memorandum to Nimmich, Martz
summarized his findings and stated:

In all of these cases, chemical, instrumental and or physical
analyses were performed. These analyses were sufficient to base
an expert opinion as to the results that were provided . . . In all
cases reviewed, no technical errors were found in the final reports.
Even though other techniques could have been employed, it is
believed that no changes would be made in the reporting of the
ninety-five cases that were reviewed.

Martz cross-referenced Butler's August 2, 1989, memorandum and
recommended that no further technical reviews be performed on Rudolph's case
work.

With regard to the Psinakis case, Martz noted that Rudolph had been criticized
for not performing confirmatory analyses. Martz observed that while liquid
chromatography (LC) would not be the instrument of choice to identify an
unknown powder, it could be sufficient depending on other circumstances to
identify an explosive. Martz also noted, It is not unusual for a defense attorney
to deliberately ask why a technique, which he knows wasn't employed, wasn't
used in the identification of a chemical.

During the OIG investigation, Nimmich and Martz gave conflicting accounts of
what Martz was asked to do in his review of Rudolph's cases. Martz recalled
that Nimmich asked him to determine if Rudolph had in fact done some
analyses to support his reported conclusions. Martz said he did not attempt to
determine whether the tests conducted by Rudolph were analytically sufficient
to support the reported results, but instead whether there was some work in the
file to support the conclusions drawn.

Martz told the OIG that he also informed Nimmich orally in 1989 that Rudolph
did the very minimum work to come to a conclusion and he did a very poor job
of documenting his work. Martz, however, did not mention these things in his
August 16, 1989, memorandum to Nimmich. Martz also informed the OIG that
in his 1989 review, he found that approximately 10% of Rudolph's files lacked
any notes at all. This information also was not included in Martz's August 1989
memorandum.

Nimmich told the OIG that he expected Martz to review the technical
sufficiency of Rudolph's work. Nimmich further said he understood that Martz
had done such a review, because Martz stated in his memorandum that
chemical, instrumental, or physical analyses were performed in all the cases
and that [t]hese analyses were sufficient to base an expert opinion as to the
results that were provided. Nimmich said he interpreted these remarks to mean
that Martz was satisfied that a sufficient amount of work was done to reach the
stated conclusions. Nimmich told the OIG that he relied upon Martz's
conclusions in determining that no further review of Rudolph's work was
warranted.

Rudolph, on his own initiative, prepared a letter dated August 25, 1989, to
Laboratory Director John Hicks. In this letter, Rudolph attempted to respond to
criticisms MAU Chief Butler had made in his August 2, 1989, memorandum.
Rudolph defended at length his work in Psinakis. With regard to record keeping
and note taking, Rudolph said that many files lacked notes because he had
retained them himself because the FBI's filing system was unreliable. He stated
that his unit chiefs knew of this practice and that in the past five years he had
received one exceptional and four superior ratings for case management and
control.

In his August 25, 1989, letter to Hicks, Rudolph also said that he had returned
almost all the notes and serials to the FBI files and added detailed comments to
files where such materials were missing. Rudolph also observed that the
quantity of notes an examiner takes is a matter of personal preference.
Although Rudolph asked that this letter be made part of the official record,
Hicks said he refused to accept it because he thought the issues had been
resolved through Butler's review.

B. Analysis of the 1989 Reviews

Laboratory management failed to assure that concerns about Rudolph's
casework were thoroughly investigated in 1989. First, neither Butler in his
initial review nor Martz in his subsequent review addressed the concern raised
by AUSA Burch that Rudolph in Psinakis had erroneously relied on
information from a field agent instead of conducting sufficient confirmatory
tests to identify PETN. On a related point, as part of the 1989 reviews of
Rudolph's work, Laboratory management failed to obtain and review a
transcript of Rudolph's trial testimony in Psinakis. In light of the prosecutor's
complaints, the transcript should have been reviewed.

In light of the conclusions stated in Butler's preliminary review, Laboratory
management also failed to take appropriate further steps. Butler noted
numerous administrative shortcomings, such as insufficient notes, missing
charts, and weak analytical procedures in his review of some 200 cases.

Rudolph says Butler directed him to return any notes or charts to the files. This
directive was insufficient. First, it did not in any way sanction Rudolph for
work habits that could, as the Psinakis case illustrates, undermine if not
eliminate the value of the Laboratory's results at trial. Second, Rudolph had
worked on several hundred cases other than the 200 Butler reviewed. At the
least, in 1989 Laboratory management should have directed a more
comprehensive review of Rudolph's casework.

We also find fault in the way Nimmich and Martz handled the follow-up
review. Given Butler's findings, the Laboratory should have reviewed
Rudolph's work to determine whether sufficient analyses were done to support
the stated conclusions. Although Nimmich might reasonably have expected
Martz, as an experienced examiner and unit chief, to understand the need for a
thorough technical review, in retrospect Nimmich should have taken steps,
preferably through written instructions, to assure that Martz understood this to
be his task. It also would have been desirable for Martz to have clearly stated
the object and methodology of his review in his memorandum.

Whatever he understood Nimmich's instructions to be, Martz stated the
conclusions of his review in a misleading way. He observed that analyses had
been performed that were sufficient, yet he told the OIG that he did not review
the sufficiency of Rudolph's work to support the stated conclusions. Martz's
August 16, 1989, memorandum shows that he knew of Butler's August 2, 1989,
memorandum, which recommended an in depth review of Rudolph's cases.
Martz in his memorandum indicated he conducted a technical review and
recommended that there be no further review of Rudolph's cases. As a unit
chief, Martz should have recognized that this misleadingly suggested that he
had completed an in depth review and concluded that further review was not
necessary.

Martz also failed to note in his memorandum that, in his review, he found that
notes and other documentation were missing. These findings deserved
comment even if Nimmich did not ask Martz to conduct an administrative
review of the files. Finally, Martz stated in his August 16, 1989, memorandum
that, while other tests could have been performed, no changes would be made
in the reporting of the 95 cases reviewed. Martz lacked any basis to make this

statement if, as he told the OIG, he did not assess whether the analyses
identified in the files were sufficient to support the stated conclusions.

Martz's review of the Psinakis case was inadequate to address the concerns
raised by AUSA Burch. Martz commented that LC might be sufficient to
identify explosives, depending on other circumstances. This begged the
relevant question of whether LC was sufficient in Psinakis, which it clearly was
not. Martz also noted that it was not uncommon for defense attorneys to
question examiners about tests they knew had not been performed. The
proclivities of defense counsel were not pertinent to the issues Martz should
have been addressing. Martz's comments about Psinakis inappropriately tended
to excuse Rudolph.

Nimmich told the OIG that he understood from Martz's memorandum that
Martz had concluded that Rudolph had a sufficient basis for his conclusions in
Psinakis. Martz confirmed in his interview with the OIG, however, that he did
not review Rudolph's work in Psinakis and did not address AUSA Burch's
concerns about the lack of confirmatory techniques. Given these facts, Martz
should not have included his comments concerning the Psinakis case in his
memorandum, because they misleadingly suggested that he had approved
Rudolph's work.

Finally, we find that Hicks did not take sufficient steps in response to the
concerns raised by AUSA Burch's letter. Given the specific allegations, Hicks
should have assured that someone at least reviewed Rudolph's testimony in
Psinakis. Hicks told the OIG that he did not remember reviewing the testimony
and did not recall hearing that any one else reviewed it; Nimmich did not recall
if it had been reviewed; and none of the documents provided to the OIG by the
FBI suggests that the Laboratory reviewed Rudolph's testimony.

Moreover, Hicks advised Burch that based on his complaints about Rudolph,
the Laboratory would conduct an internal audit of the protocols used in the
identification of explosive residues. Hicks told the OIG that he understood that
such an audit was done as part of whatever file reviews were ordered by

Nimmich. Nimmich, not surprisingly, said he did not consider such reviews to
be an audit of the Laboratory's protocols for examining explosives residue. Our
investigation did not identify any documents suggesting that a general audit of
the protocols was ever done as a result of Burch's letter. If Hicks intended such
an audit to occur, he failed to communicate his instructions clearly to others in
the Laboratory.

In sum, the Laboratory's 1989 review of Rudolph was inadequate. The
allegations that prompted the review came not from Whitehurst but from an
Assistant United States Attorney with first-hand knowledge of the alleged
deficiencies. The AUSA not only rendered his own low opinion of Rudolph's
work, but repeated the similar view of the district court judge who almost
excluded Rudolph's testimony. The AUSA further stated that Rudolph's
inadequate work contributed to an acquittal. These were serious charges. That
the Laboratory did so little in response to these allegations is deplorable. The
Laboratory should have recognized Rudolph's incompetence in 1989 and
initiated a complete file review and appropriate disciplinary measures. This was
not only required by the proper administration of justice, but it also might have
obviated the great time and effort expended in later reviews of Rudolph's files
that were still continuing seven years later.

IV. The FBI OPR Investigation in 1991-92

In late 1990 and early 1991, Whitehurst again complained within the
Laboratory about Rudolph's work habits and also made allegations of other
misconduct, including that Rudolph was a racist, had abused annual leave, had
perjured himself in a trial, and had lied to an AUSA. After an investigation by
the FBI OPR, the FBI Administrative Services Division (ASD) advised
Rudolph in June 1992 that the inquiry had not developed facts warranting any
administrative action against him and it considered the matter closed. As
explained below, we conclude that FBI OPR should have investigated certain
of these allegations further, but we do not find facts indicating that FBI OPR or
the ASD improperly sought to ignore or cover up the allegations made by
Whitehurst.

In December 1990 Whitehurst prepared a draft memorandum detailing various
allegations against Rudolph and recommending, among other things, that MAU
Chief James Corby review all of Rudolph's cases. Whitehurst repeated his
complaints that Rudolph was sloppy, had failed to conduct appropriate tests,
and had not properly documented his work. He also alleged that Rudolph and
his technician Edward Bender were racists, that Rudolph had perjured himself
in a case in the Southwest, that Rudolph had lied to AUSA Burch by telling
him the Laboratory lacked equipment in 1982 to do certain tests, and that
Rudolph had abused annual leave.

Whitehurst discussed his memorandum with Corby. At Corby's
recommendation, Nimmich forwarded the memorandum to FBI OPR in
January 1991, and FBI OPR opened an investigation. In March 1991, Nimmich
also directed Corby to review a number of Rudolph's cases. That review is
discussed in the next section. The FBI OPR investigation was conducted
primarily by Special Agent Robert O'Brien, who reported to Special Agent
Ralph Regalbuto. During 1991, FBI OPR interviewed several witnesses,
including Rudolph, Whitehurst, and others who worked with them in the
Laboratory. FBI OPR concluded that the evidence did not support Whitehurst's
allegations. Based on FBI OPR's investigation, the ASD advised Rudolph in a
letter dated June 22, 1992, that the inquiry was considered closed.

Based on our review, we conclude that FBI OPR should have conducted a more
thorough investigation with respect to three of Whitehurst's allegations.

Whitehurst alleged that both Rudolph and Bender were racists and that this
affected their work product. None of the witnesses interviewed by FBI OPR
substantiated the allegation that Rudolph made racist remarks at work or was a
racist. Several witnesses did confirm, however, that Bender regularly made
racial jokes or remarks in the Laboratory.

Given Whitehurst's allegations, FBI OPR should have pursued its investigation
further by asking witnesses if they knew of any specific case in which Bender's
racial remarks or any biases might have affected his work. In response to the

OIG investigation, O'Brien of FBI OPR said that a further investigation of
Bender was not undertaken because there was no evidence that racial views had
influenced his work and he was no longer an FBI employee. Similarly, Ralph
Regalbuto, who supervised O'Brien at the time of the investigation, stated that
FBI OPR would not have investigated the allegations against Bender because
there was no indication of conduct that might be referred to a criminal
investigative body and FBI OPR lacked authority to investigate non-FBI
employees.

FBI OPR should have pursued its investigation to the point of asking witnesses
if they knew of instances where Bender's views on race had affected his work.
If the facts suggested they did, it is conceivable that some remedial action
would have been appropriate with regard to cases he worked on while at the
FBI. Moreover, if there were facts suggesting he slanted conclusions because of
racial animus against a suspect, a criminal referral might have been appropriate.

In the course of our investigation, we contacted the individuals interviewed by
FBI OPR in its earlier investigation and asked if they knew of any instances
where Bender's racial views affected his casework. Several individuals again
recalled him making racial comments in the Laboratory, but no one identified
any specific instances where they thought his attitudes affected his work. These
same persons stated that they did not think Bender would have altered reports
or data based on the defendant's race.

The second allegation by Whitehurst that we think merited further investigation
by FBI OPR is that of Rudolph's alleged perjury. Whitehurst claimed that in an
unidentified case in the southwestern United States, Rudolph falsely testified
that his initials were on a piece of evidence. According to Whitehurst, Rudolph
told him about this incident to illustrate that [b]efore you embarrass the Bureau,
you should be willing to perjure yourself.

In response to the FBI OPR investigation, Rudolph denied ever falsely stating
that his initials were on evidence. Both O'Brien and Regalbuto of FBI OPR
advised the OIG that because Whitehurst had not provided more specific

information about the case in which the alleged perjury occurred, it was not
necessary to investigate the allegation further once Rudolph denied it. O'Brien
also noted that Whitehurst may have misunderstood remarks that Rudolph
intended as teasing or a joke.

We disagree. Whitehurst in his allegations noted that the testimony was in a
southwestern court, that Rudolph had only testified six or seven times before
this incident, and that form FD-126s used by the Laboratory would list trials in
which Rudolph testified. In view of the serious nature of the accusation, and the
information identified by Whitehurst, we think FBI OPR should have attempted
to identify cases in the Southwest in which Rudolph had testified and to review
transcripts of his testimony. If that review disclosed testimony similar to that
described by Whitehurst, FBI OPR then could have investigated further by
contacting the prosecutor and seeking to examine any evidence that remained
available.

Whitehurst also accused Rudolph of falsely telling AUSA Burch in the Psinakis
case that he could not have more thoroughly examined the evidence because
Rudolph lacked the equipment in 1982 that he had in 1989. Rudolph,
Whitehurst noted, had stated in a paper published in 1983 that he used mass
spectrometry and infrared spectrophotometry in 1981 and 1982 and that he had
used these techniques in hundreds of explosives cases. Rudolph denied ever
providing false information to AUSA Burch.

O'Brien stated that FBI OPR did not investigate this allegation further because
it did not seem to contain the elements of a lie or concern an important issue.
O'Brien observed that Rudolph's published statements that he used certain
equipment in 1982 did not mean it was available to him when he did the
Psinakis examinations. O'Brien also noted that Rudolph's former unit chief
Charles Calfee thought Rudolph would have been accurate in stating that
certain equipment was unavailable because it was still in an experimental mode
within the Laboratory.

FBI OPR did not interview AUSA Burch about this issue or review Rudolph's
1983 paper. Regalbuto of FBI OPR acknowledged that these might have been
reasonable investigative steps, depending on the circumstances, but noted that
the investigating agent has some latitude in determining if a sufficient
investigation has been done. He also observed that if the investigation was
insufficient, the FBI's Administrative Summary Unit (ASU), which makes
recommendations based on the investigations, should have asked for more to be
done.

Rudolph's alleged lying about the availability of equipment was a serious issue
that merited further investigation by FBI OPR. Despite Rudolph's denial,
O'Brien should have pursued this matter further by at least questioning Burch
about it and reviewing Rudolph's paper.

After FBI OPR completed its investigation of the allegations against Rudolph,
the ASU reviewed the matter and recommended it be closed. The ASU is part
of the ASD, which later advised Rudolph that the inquiry was considered
closed. In the ASU, the agent who reviewed the matter was John Dietz, who
had been assigned to the ASU on temporary duty for three months. In an
interview with the OIG, Dietz stated that he did not know either Rudolph or
Whitehurst at the time of the investigation and he said that he had no reason to
think the allegations were discounted because they were made by Whitehurst.
Dietz acknowledged that, in hindsight, further investigation might have been
helpful, but observed that he must have been convinced at the time that the FBI
OPR investigation had been sufficient.

In sum, we conclude that FBI OPR should have investigated further the
allegations concerning Bender's racial bias and Rudolph's alleged perjury and
the alleged lie to AUSA Burch. Our review of the FBI OPR investigation and
the ASU's resulting recommendation to close the matter did not disclose facts
indicating that there was a deliberate effort to dismiss or ignore Whitehurst's
allegations.

V. The 1992 Corby Review

A. Factual Background

Because the FBI OPR did not have the technical expertise to review
Whitehurst's allegations concerning Rudolph's casework, the Laboratory itself
conducted another case review. SAS Chief Kenneth Nimmich directed MAU
Chief James Corby to review a representative sample of Rudolph's cases.

Corby reviewed approximately 200 cases and found many serious flaws in
Rudolph's work. He described his findings in a handwritten draft memorandum
that he gave to Nimmich in the spring of 1992. Corby noted that Rudolph had
failed to follow his own explosives residue protocol, had formed conclusions
and prepared dictation without a basis, had failed to run standards or
confirmatory tests, had offered opinions to fit the case scenario or findings of
other units whether or not supported by his own analyses, had failed to label
charts properly, and, where data was present in the file, had sometimes made
technical errors.

Based upon his review, Corby recommended that appropriate disciplinary
measures immediately be administered to SSA Rudolph for unacceptable
casework performance and that such disciplinary action include censorship,
suspension and probation for a period of time. Corby also recommended that
SSA Rudolph immediately be barred from participating in any explosiverelated program or research being conducted by the FBI laboratory and that all
files be thoroughly reviewed in those cases where SSA Rudolph testified before
any judicial proceeding in order to determine if further action is warranted in
this matter.

Nimmich returned the draft memorandum to Corby and told him it was not his
place to recommend particular disciplinary measures. According to Nimmich,
he also asked Roger Martz, then the CTU Chief, and CTU examiner Lynn
Lasswell to participate with Corby in a panel review of Rudolph's cases.
Nimmich told the OIG that he told the panel members to review the cases to

see if there were errors that we needed to address back to a prosecutor, to a
defense attorney, or anything of that type in terms of bad casework, if you
would, errors that would have been made, misrepresentations of what was
actually there. He expected each panel member to review all of the files.

The panel review evidently was not implemented in the manner Nimmich
contemplated. Corby believed that Lasswell and Martz became involved only
after Corby had given his draft memorandum to Nimmich. Lasswell received
57 cases from Corby and reviewed them for technical and administrative errors.
He took detailed notes of his findings and gave them to Corby. Among other
things, Lasswell observed that certain of Rudolph's cases lacked sufficient tests
to support the stated opinions, that notes and charts were missing for some
evidence, and that confirmatory techniques had not been used. Lasswell
thought these problems were very serious and could greatly affect the cases if
they went to court.

Martz, when interviewed during the OIG investigation, could not recall
participating in the 1992 panel review. While he remembered talking with
Corby and Lasswell about their review, Martz said he did not remember
reviewing 200 cases himself and he had no notes related to any such review.
Lasswell and Corby, like Nimmich, each thought that Martz was also reviewing
Rudolph's cases. Our investigation, however, did not identify any
memorandum, notes, or other documents by Martz reflecting such a review.

Nimmich prepared a memorandum to Hicks dated April 30, 1992, reporting on
the results of the panel review of Rudolph's cases. Nimmich's memorandum
stated that 200 cases were reviewed by a panel consisting of Corby, Martz and
Lasswell. The memorandum observed:

Over 100 of the 200 cases reviewed revealed marginally
acceptable records (notes and charts) in the case files. Fifty-seven
of these cases were found to have incomplete and or missing
documentation. A list of these cases is attached. These cases
reflected dictation which could not be totally supported by the

records and notes contained in the file jacket, failure to follow his
own published guidelines, reporting on multiple samples having
run only one chart and failing to confirm identification on
multiple instrumentation.

The memorandum reported that [n]o instances of fraud or intentional
misrepresentations were found during this review; however, it was evident that
the quality of work was severely lacking.

The memorandum recommended that Rudolph receive a severe reprimand
based on the lack of professionalism and attention to detail reflected in his
casework. Nimmich also recommended that for the 57 files with unacceptable
documentation, Rudolph should be asked to bring the working notes up to an
acceptable level through the use of personal diaries, notes, or recollection and
to prepare a memorandum reflecting the additional information for each file.

Nimmich's memorandum does not indicate that copies of it were sent to any of
the panel members. Corby said he did not see the memorandum until several
years after it was prepared; Martz and Lasswell said they had not seen it before
it was shown to them during the OIG investigation. Nimmich recalled
consulting with Corby in preparing the memorandum, but Corby did not
remember such a discussion. Nimmich also recalled that he consulted with
Corby and Hicks before recommending that Rudolph receive a severe
reprimand.

On May 18, 1992, Hicks discussed the file review with Rudolph. Without
consulting Nimmich, Hicks decided to verbally admonish Rudolph rather than
reprimand him. Rudolph recalled that Hicks gave him a mild chewing out and
told him he was not being reprimanded because his unit chiefs had approved
his work. Rudolph said that in this meeting, Hicks also gave him a $500
incentive award for something Rudolph had recently done, and Hicks said
words to the effect that maybe this would help your day. The verbal
admonishment was the only sanction imposed by the FBI on Rudolph for the
poor quality of his work. During the OIG investigation, Rudolph said he was

surprised by this leniency, as he had expected and even thought he deserved a
letter of censure.

Consistent with Nimmich's recommendation, Rudolph was directed to attempt
to bring the files up to an acceptable level by adding information to them. In an
August 18, 1992, memorandum to Hicks, Rudolph identified changes he made
in 40 of the 57 files. Rudolph stated in his memorandum that [n]o attempt was
made to alter or change any conclusion or report, only to improve the clarity
and understanding of what was done.

Rudolph was directed to place a memorandum in each file documenting that
changes were made. In his memorandum to Hicks, Rudolph resisted this action,
stating that it would only serve as a red flag in any future defense subpoena and
could draw unwarranted attention to the file. Rudolph stated that most of the
additions and labeling that was done is something an examiner might do
anyway in sprucing up the file' before a court testimony and did not need to be
memorialized in the file.

Despite Rudolph's protest, Nimmich required him to prepare a memorandum
for each file reflecting that changes had been made. Nimmich said he reviewed
the memoranda himself and directed that they be placed in the files. Based on
these actions, Nimmich wrote a memorandum to Hicks dated March 12, 1993,
advising that the review of Rudolph's cases should be considered closed and no
further action be taken.

B. Analysis of the 1992 Corby Review

The 1992 review of Rudolph's cases and the Laboratory's response to that
review were insufficient in several respects.

At the outset, Nimmich should have given clear, written directions to those
participating in the review as to its objective and the procedures to be used.
Had such directions been given, substantial problems of miscommunication or
misunderstanding might have been avoided. Nimmich indicated in his April 30,
1992, memorandum to Hicks that a panel of Corby, Lasswell, and Martz had
reviewed 200 of Rudolph's cases. In fact, Lasswell only reviewed 57 cases, and
it is unclear whether Martz reviewed any at all as part of the 1992 review.

On a related point, Nimmich should have circulated to the panel members
drafts of the sections of his April 30, 1992, memorandum which described the
panel's findings. This would have assured that the memorandum that later went
to Hicks accurately described what each panel member had done in the review
and that they agreed with the description of their findings. Moreover, reactions
to the drafts by Corby or Lasswell might have been significant to Nimmich as
he considered his recommendations for sanctions against Rudolph for the
condition of his files.

Given the problems identified in the 1992 case review, we also think that
Laboratory management failed to take sufficient remedial steps or to impose
adequate sanctions on Rudolph. The 1992 case review identified serious
deficiencies in 57 of approximately 200 cases reviewed. But Rudolph had
worked on hundreds of cases before leaving the Laboratory in 1988. Once
Laboratory management learned that a case review identified deficiencies in
more than 25% of the reviewed cases, a comprehensive review of all of
Rudolph's case work should have been undertaken.

We do not fault Hicks and Nimmich for directing Rudolph to attempt to bring
the 57 files to an acceptable level and to document his actions, but this directive
was not followed appropriately by Rudolph or monitored adequately by
management. During the OIG investigation, Rudolph stated that he did not
recall documenting in the individual memoranda every change he made to the
files. Rudolph also admitted that it was not uncommon for him to label charts
or otherwise to change files before trial without documenting these actions.
This echoes his earlier statements to Hicks in his August 18, 1992,
memorandum when Rudolph argued he should not be required to place a

memorandum in each file reflecting any changes, because it was common for
examiners to spruce up a file without documenting that action.

Rudolph's statements reflect a fundamental misunderstanding of the importance
of accurate work notes and adequate case documentation. As noted earlier, the
lack of such documentation may mean, as was demonstrated in Psinakis, that it
is impossible to determine what was done in earlier analyses. Moreover, work
notes are generally understood to have been prepared contemporaneously with
the examinations or analyses they concern. Such notes can be misleading if
they are created or spruced up at a later date without that fact being indicated in
the notes themselves. Their preparation sometime after the work they describe
obviously can be relevant to the weight or credibility of any testimony that is
based on them. When Rudolph communicated to Hicks the view that it was
common and appropriate for examiners to spruce up their files before trial
without documenting such action, Laboratory management should have taken
appropriate steps to advise Rudolph and others that such a practice is not
acceptable for a forensic laboratory and would not be tolerated.

Despite the findings reported in Nimmich's April 30, 1992, memorandum,
Rudolph received only an oral admonition, one of the most lenient punishments
available. The 1992 file review revealed that Rudolph's cases had extensive
problems with inadequate documentation, insufficient confirmatory tests, and
conclusions that were not fully supported by the information in the files.
Rudolph should have been seriously disciplined for his inadequate work and his
failure to return documentation to the files in accord with directions he was
given in 1989. We find unpersuasive the suggestion that Rudolph deserved no
more than an admonishment because unit chiefs had approved his work. The
case files do suggest that his unit chiefs, particularly Charles Calfee, did not
adequately review his work to assure that it was appropriately documented and
that the stated conclusions were reasonably supported. This fact does not
excuse Rudolph's lack of professionalism. He should have recognized the
shortcomings in his own work, particularly given his academic credentials in
chemistry and experience in the Laboratory.

VI. The 1995 Corby Review

A. Factual Background

In the spring of 1993, Laboratory Director Hicks named James Kearney to
replace Kenneth Nimmich as the chief of the SAS; Nimmich in turn took
Kearney's former position as the chief of the FSRTC in Quantico. Shortly after
Kearney took his new position, James Corby approached him to complain
about Rudolph's work and to argue that a further review should be made
because there were serious problems in the files.

After learning of Corby's concerns, Kearney asked Martz to review several of
Rudolph's problem files to see if corrective action had been taken. Martz
prepared a memorandum for Kearney that described the contents of particular
files but did not state any findings or conclusions. During the OIG
investigation, Martz explained that he had been unable to find certain notes and
charts that Rudolph said had been returned to the files. Martz, however, did not
recall discussing this point with Kearney, but remembered only giving him the
memorandum.

Corby was so concerned about the condition of Rudolph's files that he asked
Kearney to raise the issue with Hicks. That concern led to Corby meeting
sometime in the spring of 1993 with Hicks, Martz, Kearney, and Wayne
Taylor, who was then Hicks' deputy. Corby argued that technical problems with
Rudolph's work merited a further review. According to Hicks, Martz disagreed
and represented that Lasswell also disagreed with Corby. Martz denies saying
Lasswell disagreed with Corby and told us he thinks Lasswell also found
problems in Rudolph's work.

Hicks recalls concluding that the Rudolph matter should be closed in 1993
because he thought the allegations had been reasonably investigated and no
technical deficiencies had been found in the several case reviews. During the
OIG investigation, Hicks stated that his conclusion was significantly influenced
by his belief that Lasswell had not found serious problems in Rudolph's cases,

and Hicks said he would have reacted differently had he known that Lasswell
in fact thought there were serious errors that would affect Rudolph's ability to
testify to the results.

In February 1994, Whitehurst's attorney Stephen Kohn wrote to the FBI
describing various allegations regarding the Laboratory, including complaints
about Rudolph. During the spring of 1994, the OGC conducted an investigation
in response to Kohn's letter. In a May 26, 1994, memorandum describing the
results of the investigation, the OGC concluded that Corby should undertake a
final, more comprehensive review of all of Rudolph's cases. The FBI
memorandum observed that such a review of the files would most likely reveal
that they are sloppy and that his [Rudolph's] conclusions are not supported by
appropriate documentation.

One of the OGC attorneys involved in the 1994 investigation, John Sylvester,
recalls that the Laboratory Division was furious with the recommendation for
another review. Kearney, however, said that by May 1994 he had
independently concluded that such a review should be done. In any event, in
June 1995, about a year after the OGC made its recommendation, Corby was
directed to review all cases in which Rudolph had worked as a principal
examiner or auxiliary examiner in the MAU.

Corby's instructions were outlined in a June 12, 1995, memorandum from
Kearney to Milton Ahlerich, who had recently become the Laboratory Director
after Hicks retired. The memorandum asked Corby to categorize his findings as
follows:

Category one - Cases that
are sufficiently complete
and require no further
review.

Category two - Cases that
are administratively
incomplete (lack proper
marking of charts and
notes) but contain enough
documentation to support
conclusions.

Category three - Cases
that are administratively
and technically
incomplete, i.e., lack
documentation (no notes,
charts, or graphs) for
conclusions reported.

Category four - Cases that
contain omissions or
technical errors.

In a memorandum dated November 30, 1995, Corby reported the results of his
review. Corby noted that he characterized Rudolph's conclusions as correct if
he found any basis for the reported results in his file review. Applying this
standard, Corby found 20 files in category four, 137 in category three, 76 in
category two, and 421 in category one. Corby concluded that 24% of Rudolph's
cases were in categories 3 or 4 and did not meet the administrative or technical
guidelines at the time the cases were worked. (Emphasis in original.) In Corby's
opinion, they would not be acceptable under close judicial scrutiny, or past or
present peer review. (Emphasis in original.)

Rudolph was allowed to review the cases Corby placed in categories 2, 3, and 4
and to respond in writing. On May 7, 1996, Rudolph submitted a nearly 200page response in which he defended his work and strongly disputed many of
Corby's criticisms. Rudolph made general responses to certain recurring issues

and also addressed individual cases. In an interview during the OIG
investigation, Corby commented on Rudolph's responses.

B. Analysis of Corby's 1995 Review

In this section, we assess Corby's findings and Rudolph's response. We begin
by discussing several recurring problems identified by Corby.

Corby noted in his 1995 review that Rudolph seemed to report a
disproportionately large number of examinations relative to the number of
specimens. Rudolph responded that it was common for examiners to conduct
multiple examinations of the same specimen. Unfortunately, Rudolph's files
generally lacked work notes or other documents that would explain the number
of examinations conducted.

In several cases, Corby found that Rudolph had failed to follow protocols.
Rudolph argued that the FBI Laboratory did not have any official protocol
during his tenure there. Even so, as Corby noted, Rudolph had described a
protocol in the FBI's 1983 Symposium on Explosives Residue Analysis, and we
do not understand why he would disregard that protocol in his own work.

Corby also found that charts or notes were missing in many cases. Rudolph
offered several responses: the documents may have been lost during the
multiple file reviews, he kept documents himself because of the FBI's
inadequate filing system, and his unit chief's approval of his work indicates that
adequate documentation was once there. Rudolph's responses are unpersuasive.
He was directed by Butler in 1989 to return any notes or other documents to the
files, so the files should not have been incomplete in 1995. Moreover, his
former Unit Chief Charles Calfee observed that the commonly understood
practice was that an examiner would make a notation in the file if he or she had
removed or retained documents. No such notations appear in Rudolph's files.
Rudolph's case files in general are much more incomplete than others we

reviewed, and therefore we find it implausible that the shortcomings in
Rudolph's files are primarily due to deficiencies in the FBI's filing system.

One of the main criticisms made by Corby in his 1995 review was that
Rudolph's files reflected sloppy note taking and other administrative
deficiencies, such as insufficient documentation, charts that did not have
specimen or file numbers, and charts without identified peaks. In his response,
Rudolph again observed that his unit chiefs had approved his work and stated
that he only recalled one, Roger Asbury, asking for more precise notes and that
none had asked that charts be completely identified. In fact, in a 1987 Progress
Review for Rudolph, Asbury observed that communications of results could
improve with more comprehensive and detailed notes in preparing reports.
Rudolph signed this Progress Review.

In his OIG interview, Rudolph also defended the condition of his files by
stating that he dismissed identifying all of these notes and charts as not
important because he would do it if it goes to trial. He said he would spruce up
a file if a case went to trial; that is, he would identify peaks on charts, add
additional notes if necessary, and clean up the notes already in the file. But
Rudolph did not document in the file which material had been added at a later
date. As we have noted earlier, Rudolph fails to recognize the importance of
accurate, complete work notes and documentation, and his practice of sprucing
up files is both unprofessional and unacceptable for any credible forensic
laboratory.

Corby's 1995 review also criticized Rudolph for using ion chromatography (IC)
as the only identification technique in some cases and for failing to identify all
the peaks on charts from x-ray powder diffraction (XRD). Rudolph responded
that IC has long been used as an identifying technique and that in some
instances other techniques could not be employed. The files, however,
generally lack information that would indicate why other techniques were or
were not used. With regard to the XRD charts, Rudolph argued that labeling
was not necessary because he could recognize what the peaks represented when
he later reviewed the charts. He also maintained that once he identified the
main component, he compared the remaining peaks against peaks for other
known explosives. The lack of adequate documentation is inexcusable, despite

Rudolph's claim that he could later recognize the peaks, and makes it
impossible to corroborate his assertion that he made comparisons with other
unlabeled peaks.

Another recurring problem noted by Corby is that Rudolph failed to report
results that might have been significant. In his response, Rudolph asserted that
this is mostly a matter of experts differing about what constitutes a significant
result. In an interview with the OIG, Corby observed, and we agree, that this is
another manifestation of Rudolph's inadequate note-taking practices. If tests or
analyses yield results that could affect the examiner's conclusions, those results
should be recorded in the examiner's notes. This will assure that potentially
useful information is not lost, and the examiner can document his reasons for
not utilizing particular results in forming his conclusions.

In responding to Corby's 1995 review, Rudolph also addressed particular cases.
As part of the OIG investigation, we reviewed a sample of the cases and
concluded that Corby's criticisms were for the most part justified. Our ability to
evaluate Corby's findings was limited, however, by the fact that Rudolph had
made further changes in the files in responding to Corby's review. During a
February 28, 1996, interview with the OIG, Rudolph admitted that he was still
sprucing up files after the most recent review and was not documenting the
changes. Accordingly, when we reviewed particular cases and could not
validate Corby's criticisms, it was unclear whether this reflected particular
additions made to the file after Corby's review.

Our limited review of case files convinced us that Corby's findings were
generally correct. There is one issue that was not addressed in Corby's most
recent review or the earlier reviews, and that is contamination. As illustrated by
the Psinakis case, Whitehurst has complained for some time that Rudolph,
because of his sloppy work habits, could have reached conclusions based on his
own contamination of the evidence. During an OIG interview, Rudolph stated
he had never contaminated evidence but admitted that he did not always wear
gloves in the Laboratory, place paper down when doing examinations, or take
control swabs of his work area. Rudolph also admitted that his work area was
unkempt and that a messy laboratory was almost his and Bender's trademark.
These remarks suggest that Rudolph did not appreciate the significant problems

of contamination in explosive examinations and therefore failed to take
appropriate preventive measures.
VII. Conclusion

A. Rudolph

In a substantial number of his cases, Terry Rudolph did not perform his work as
an examiner in a manner that would withstand peer review or judicial scrutiny.
In Psinakis, he did not adequately document his case work, he failed to conduct
required confirmatory tests, and his stated conclusions lacked a valid scientific
basis. The reviews of Rudolph's work conducted by the Laboratory after
Psinakis confirm that his lack of competence was not isolated to that case.

Rudolph displayed an attitude towards case documentation that is inconsistent
with the presentation of credible scientific conclusions. His belief that notes are
only for the examiner's own use and that files may be spruced up on the eve of
trial is unacceptable. In our investigation we found no evidence that other
examiners had made after-the-fact changes to case documentation without
noting such actions in the file.

That Rudolph continued to spruce up his files without documenting the changes
even after he had been directed by Nimmich to produce such documentation,
and while his files were being reviewed, was insubordinate and constitutes
willful misconduct.

Rudolph attempted to justify his conduct by noting that unit chiefs had
approved his work. The condition of Rudolph's files suggests that his unit
chiefs, particularly Charles Calfee who served as his unit chief from 1979
through 1986, did not sufficiently review his work. That fact, however, does
not excuse Rudolph's failure to conduct confirmatory tests, to run appropriate

standards or controls, to follow protocols, or to document his work
appropriately.

Our investigation did not identify facts suggesting that Rudolph made
intentional misrepresentations in his files or attempted to slant his results to
favor the prosecution. Indeed, our own review of Rudolph's cases, our
interviews with him, and the 1995 review by Corby indicate that Rudolph
indiscriminately disregarded appropriate scientific methods and failed to
document his work without regard to whether the results favored the
prosecution or the defense.

B. Management

In the Rudolph matter, Laboratory management repeatedly failed to address
serious concerns about the very integrity of the Laboratory's forensic results. A
complete review of Rudolph's case work should have been conducted in 1989,
after AUSA Burch complained about Rudolph's conduct in Psinakis and MAU
Chief Butler identified numerous administrative shortcomings in 200 cases and
the need for an in-depth review.

The 1989 review by Martz of 95 cases was not sufficient. Nimmich should
have given written directions to assure that an in-depth review did occur. That
review should have encompassed all of Rudolph's cases. Martz presented his
conclusions in a misleading way that incorrectly suggested he had reviewed
and approved the technical sufficiency of Rudolph's work and that Rudolph had
done nothing wrong in Psinakis. We did not conclude that Martz intentionally
sought to mislead in his memorandum, but, whatever he understood his
instructions to be, Martz should have stated more clearly what he did to reach
his conclusions.

We especially deplore the inadequacies of the Laboratory's 1989 review
because (1) it was prompted by an AUSA who stated that Rudolph's

shortcomings contributed to an acquittal of a defendant in a federal prosecution,
and (2) a proper review in 1989 could have obviated the need for later efforts to
evaluate Rudolph's work. Hicks' inadequate response to the AUSA's letter and
Martz's misleading memorandum contributed most to the failure of the 1989
review.

Laboratory management also failed adequately to respond to the results of the
1992 review. Again, Nimmich should have provided clear, written instructions
concerning the objectives and methodology of that review. He also should have
allowed Corby, Lasswell, and Martz to review relevant parts of his
memorandum that purportedly described their conclusions. We think
Laboratory Director Hicks erred in rejecting Nimmich's recommendation that
Rudolph should be severely reprimanded and deciding instead to impose a
mere verbal admonition. Moreover, the Laboratory failed to assure that
Rudolph had returned materials to the identified files and fully documented any
additions or changes he made. Given the findings in Corby's 1992 review, the
Laboratory again should have directed a complete review of Rudolph's files,
rather than determining that the matter should be closed.

Although we conclude that Laboratory management failed to assure that the
allegations about Rudolph were adequately investigated and resolved, we
cannot conclude that those allegations were deliberately ignored or that there
was an effort to cover up Rudolph's deficiencies as an examiner.

The OGC appropriately recommended in 1994 that Corby undertake a
comprehensive review of Rudolph's cases. As noted above, we generally agree
with the conclusions reached by Corby when he completed the review in
November 1995.

Based on the above findings, we recommend that a notation describing the
conclusions of this Report should be included in each case file for which
Rudolph prepared AE or PE dictation. Rudolph, as noted above, retired in June
1996. Accordingly, we do not recommend disciplinary action against him. We
understand that after his retirement, he did some work for the FBI on a

contractual basis. Based on our investigation, we recommend that the FBI not
employ him in the future.

Finally, we note that the Rudolph matter illustrates several respects in which
the Laboratory policies or procedures could have been improved. During
Rudolph's tenure in the Laboratory, there was no formal quality assurance
program. The problems exhibited in Rudolph's case work might have been
prevented if such a program had been implemented and had provided
guidelines for case documentation, adequate case review, and the use of
properly validated protocols. We comment on these issues further in Part Six of
this Report, which discusses general recommendations to enhance the quality
of the Laboratory's forensic work.

#####

SECTION B: THE VANPAC CASE

I. Introduction

This case concerns four mail bombs sent in December 1989 to different
locations in the southeastern United States. One killed federal judge Robert
Vance in Alabama, a second killed a civil rights attorney in Georgia, and two
others were discovered before they exploded. A massive investigation ensued
involving the FBI and several other law enforcement agencies. The FBI
referred to the case as VANPAC because it involved the assassination of Judge
Vance with a bomb sent in a mail package. In June 1991, a federal jury
convicted Walter LeRoy Moody, Jr. on charges related to the bombings.

In this case, Whitehurst has made numerous allegations of wrongdoing by J.
Thomas Thurman of the Explosives Unit (EU) and by Roger Martz of the
Chemistry-Toxicology Unit (CTU). Whitehurst complains that Thurman and
Martz circumvented the procedures of the FBI Laboratory because Thurman, as
the principal examiner, asked Martz to analyze material in the mail bombs even
though the Materials Analysis Unit (MAU) was responsible for analyzing
explosives residue. He also alleges that because Martz did not follow the
protocol for residue analysis developed by the MAU, Martz reached a flawed
opinion in concluding that the mail bombs contained a particular smokeless
powder.

Whitehurst alleges that Thurman improperly based his opinions on the flawed
residue analysis performed by Martz; that Thurman improperly testified outside
his field of expertise on various matters; and that Thurman lacked a factual
basis for certain testimony about the explosives used in the bombs. Whitehurst
has accused both Thurman and Martz of fabricating evidence, perjuring
themselves, and obstructing justice in the VANPAC case. He also has
suggested that prosecutors Louis J. Freeh and Howard Shapiro, who were then

Assistant United States Attorneys and who tried the VANPAC case, may have
committed misconduct by offering the testimony of Martz and Thurman.

To investigate Whitehurst's claims regarding this case, we reviewed the
pertinent reports prepared by the FBI Laboratory and, where available, the
underlying work papers and test results. We reviewed transcripts of the
testimony given by certain witnesses and the closing arguments in Moody's
trial for the bombings. We also questioned agents Thurman, Martz, and
Whitehurst about the case in interviews in which their answers were given
under oath and transcribed. We also interviewed others involved in the case,
including Director Freeh, FBI General Counsel Shapiro, and current or former
Laboratory personnel James Corby, James Kearney, Roger Peele, Charles
Peters, and Robert Webb.

We find no factual basis to conclude that Thurman or Martz perjured
themselves, fabricated evidence, obstructed justice, or violated any FBI policies
or procedures in this case. Nor do we find any evidence to support Whitehurst's
claims of prosecutorial misconduct. Whitehurst did not make allegations
against MAU examiner Robert Webb. Based on the documents provided by the
FBI, however, we did conclude that Webb stated conclusions about the
common origin of certain tape, paint, sealant, and glue more strongly than was
justified by the results of his examinations and the background data. In our
view, Webb did not intentionally attempt to fabricate evidence or to present
biased conclusions. Our investigation of the VANPAC case also reveals several
areas in which Laboratory practices or procedures should be improved. These
matters are discussed further in the following sections.

II. Factual Background

In December 1989, four mail bombs were received at different addresses in the
southeastern United States. One bomb killed Eleventh Circuit Court of Appeals
Judge Robert Vance in Birmingham, Alabama; another killed attorney Robert
Robinson in Savannah, Georgia; the third was discovered before exploding at a
federal courthouse in Atlanta, Georgia; and the fourth was discovered before

exploding at the Jacksonville, Florida office of the National Association for the
Advancement of Colored People (NAACP).

The mail bombs had numerous similarities, which included: they were
delivered in packages wrapped in brown paper, tied with string, addressed with
typed red-and-white labels, and posted with stamps depicting an American flag
over Yosemite National Park; they were placed in cardboard boxes that had
been painted black in the inside; and each bomb included a steel pipe filled
with smokeless powder, finishing nails secured to the outside of the pipe, and a
detonator fashioned from a flashbulb filament with distinctive wiring and a
ballpoint pen casing. The detonators from the two bombs that did not explode
contained a green powder identified as high explosive primer. Three of the
bombs also had welded end plates that were joined together by a steel rod
through the center of the pipe.

The bombings were followed by a large-scale investigation involving the FBI,
the Bureau of Alcohol, Tobacco and Firearms (ATF), the U.S. Postal
Inspection Service, the Georgia Bureau of Investigation, and other law
enforcement agencies. The unexploded devices found in Atlanta and
Jacksonville were sent to the FBI Laboratory for analysis in December 1989, as
was debris from the mail bombs from Savannah and Birmingham. J. Thomas
Thurman of the EU was assigned as the principal examiner.

Thurman enlisted various auxiliary examiners in other units of the Laboratory
to examine evidence. The other examiners included Roger Martz, who was then
chief of the CTU. In January 1990, Martz determined that each mail bomb
contained Red Dot double base smokeless powder. He also determined that a
green powder found inside the detonators of the two unexploded mail bombs
was a small arms primer manufactured by CCI Industries.

Walter LeRoy Moody, Jr. was identified as a suspect after ATF forensic
chemist Lloyd Erwin recalled that Moody had been convicted in a 1972 case
involving a pipe bomb with a design similar to that of the 1989 bombs. In
February 1990, federal investigators searched a storage area rented by Moody

in Chamblee, Georgia, and found a device constructed from a metal pipe that
was similar in some respects to the construction of the mail bombs. Several
searches of Moody's house, however, failed to reveal evidence of Red Dot
smokeless powder or the type of CCI primer identified by Martz in the
explosive devices.

In April 1990, a witness named Paul Sartain told ATF agents that while he was
working at the Shootin' Iron gun store in December 1989, he had sold someone
a four pound can of Red Dot smokeless powder and a quantity of CCI primers.
Sartain later identified Moody as the person who had purchased these items.

In July 1990, Moody was indicted on charges that he had suborned perjury by a
witness in connection with a 1988 hearing on a coram nobis petition he had
filed related to his 1972 conviction. A jury convicted Moody of these charges
after a trial in Brunswick, Georgia, in December 1990.

In November 1990, Moody was charged with various federal crimes related to
the bombings. Venue for trial was transferred to St. Paul, Minnesota and the
case was assigned to Senior Judge Edward J. Devitt. After a trial in June 1991,
a jury convicted Moody on 71 separate counts. The judge sentenced Moody to
seven life terms plus four hundred years.

During the trial, Lloyd Erwin, Frank Lee, and Terry Byer of the ATF testified
about the construction of the four mail bombs, the 1972 bomb, and the
Chamblee device. They opined that all had been made by the same person.
Moody's former wife Susan McBride Moody testified that she had purchased
various items at Moody's direction. The items she purchased were consistent
with components used in the mail bombs. A former cellmate of Moody's, Ted
Banks, testified that at Moody's request he had welded end plates onto three
metal pipes that were similar to those used in three of the bombs. Paul Sartain
testified that in December 1989, he had sold Moody a four-pound keg of Red
Dot smokeless powder and 4,000 CCI small pistol primers.

During the third week of trial, the government presented testimony by Thurman
and Martz from the FBI's Laboratory Division. Thurman testified about the
construction of the mail bombs and opined that they had been made by the
same person who made the 1972 bomb. Martz testified that the mail bombs
contained Red Dot double base smokeless powder and that he identified CCI
small arms primer in detonators from the two unexploded devices.

III. Analysis of the Whitehurst Allegations

Whitehurst did not do any work himself on the VANPAC case. In a September
5, 1994, letter to the OIG, Whitehurst detailed numerous criticisms of the
testimony by Martz and Thurman in Moody's 1991 trial. Whitehurst made
similar criticisms in a 26-page memorandum to James Kearney that was
prepared near the time of Kearney's retirement as chief of the Scientific
Analysis Section in June 1995.

In making his criticisms, Whitehurst relied on the transcripts of the trial
testimony of Thurman and Martz and the closing arguments by Freeh and
Shapiro. He did not review the trial exhibits or other evidence. Nor did he
review any of the Laboratory reports or analytical data related to the testimony
by Martz and Thurman.

For purposes of our report, we have summarized the various criticisms under
the following identified headings.

A. The Alleged Violation of Protocols

Whitehurst claims that Thurman and Martz circumvented the FBI's protocols
for the analysis of explosives residue when Martz analyzed the contents of the
explosive devices.

Contrary to Whitehurst's position, at the time of the VANPAC case, there was
no Laboratory protocol or policy requiring that all analysis of explosives be
conducted by the MAU. That unit did generally perform the analysis of
explosives residue and certain bulk explosives. The CTU, however, had been
analyzing smokeless powders since the 1980s. This apparently occurred
because Roger Martz had, within the CTU, developed techniques, including the
use of the mass spectrometer, to confirm the presence of smokeless powder and
to attempt to identify the manufacturer. At the time, there were no written
policies describing the respective roles of the CTU and the MAU in analyzing
explosives.

Martz stated in his sworn interview that the CTU became responsible for the
analysis of smokeless powders sometime in the early 1980s after the CTU and
MAU completed proficiency tests. We were unable to locate any FBI
documents describing the results of such tests or a decision that the CTU would
analyze smokeless powder. Former MAU Chief Charles Calfee, although not
recalling the proficiency tests, confirmed that responsibility for the analysis of
smokeless powder was transferred from the MAU to the CTU after the latter
unit developed identification techniques with the mass spectrometer. James
Corby, MAU chief from June 1990 through October 1995, also confirmed that
the CTU was conducting smokeless powder analyses during his tenure. Others
also acknowledged in interviews that the CTU was analyzing smokeless
powders when the Laboratory received the VANPAC case.

Thurman stated in his sworn interview that he had not made any effort to avoid
or circumvent the MAU in connection with the VANPAC case. Thurman
explained that he identified what appeared to be smokeless powder particles in
the evidence, and he therefore sent it on for analysis by Martz because the CTU
analyzed smokeless powders. Martz gave a similar account of his initial
involvement in the case. Martz also stated in his sworn interview that
Whitehurst knew in December 1989 that Martz was working on the VANPAC
case to analyze possible smokeless powders and Whitehurst did not at that time
express any concern. Whether or not Whitehurst knew in 1989 or 1990 that the
CTU was analyzing the powder, we find no factual basis to conclude that
Thurman and Martz attempted to circumvent Laboratory protocols or bypass
the MAU.

B. The Identification of Red Dot Smokeless Powder

After receiving the evidence, Martz determined that each device contained Red
Dot double base smokeless powder made by the Hercules Corporation. Martz
reached this conclusion after visually examining and measuring particles that
appeared to be smokeless powder and then analyzing the substances with a
mass spectrometer. The results confirmed that Red Dot double base smokeless
powder was present in each device. Martz also had Fourier Transform Infrared
Spectroscopy (FTIR) performed on one sample to confirm the presence of
nitrocellulose, a component of smokeless powder.

In analyzing the samples, Martz followed a protocol for the identification of
smokeless powder that had been used in the CTU for several years. The basic
procedure was outlined in an article published by Martz and FBI examiner
Lynn Lasswell in 1983. Before Moody's trial, at least one defense expert
reviewed the physical evidence and the FBI Laboratory reports and agreed with
the conclusion that each device contained Red Dot smokeless powder as its
main charge.

Whitehurst alleges that Martz improperly analyzed the evidence because he did
not follow the protocol for analysis of explosives residue developed in the
MAU. The MAU protocol would have involved additional analytical tests that
might have detected certain inorganic explosives or fillers that cannot be
identified by the mass spectrometer. Because these tests were not performed,
Whitehurst asserts that Martz, and subsequently Thurman, could not conclude
that smokeless powder constituted the explosive in the mail bombs.

Whitehurst is correct that the analytical tests performed by Martz may not have
detected certain substances. Martz, in his interview with us, acknowledged that
if trace amounts of certain inorganic materials were present, they conceivably
would not have been identified by the tests he performed. Martz noted,
however, that he physically examined the evidence, including debris from the

bombs, and did not observe traces of other possible explosive components. In
retrospect, we think a more comprehensive analysis might have been desirable,
particularly given the scope of investigative efforts otherwise made in the case.
The possibility that one or more of the devices may have contained other
explosives or fillers, which were not identified by visual or microscopic
examination, does not mean that the conclusions by Martz or Thurman about
smokeless powder lacked a factual or scientific basis.

Although we do not believe that Thurman or Martz perjured themselves or
fabricated evidence with regard to the presence of smokeless powder in the
mail bombs, this case does illustrate an area in which the Laboratory's
procedures should be improved. As noted above, during this time, both the
CTU and the MAU were analyzing explosives. There was no clear delineation
of the respective responsibilities of each unit. Moreover, because the units did
not share a common protocol, the tests might vary depending on which unit
received the evidence.

C. Thurman's Testimony About the Explosives

Whitehurst complains about several aspects of Thurman's testimony concerning
the explosives used in each of the mail bombs.

Early in his testimony, Thurman discussed factors that affect the strength of a
pipe bomb. With respect to the particular explosive used, Thurman noted,
within the smokeless powder family there's two types of low explosives that we
deal with more than anything else, and that's single base low explosive, and a
double base low explosive. Thurman then said that a single base low explosive
does not have nitroglycerin, while a double base explosive does. Whitehurst
complains that [t]here are no such things as double and single base explosives,
and that if Thurman was referring to smokeless powders, his remark is
inaccurate, because those are not the explosives the FBI deals with most.
Thurman apparently misspoke in using the term explosives rather than
smokeless powder in this context. Thurman would have been accurate in saying

that within the smokeless powder family, single and double base powders are
the ones we deal with more than anything else.

Discussing the Birmingham device, Thurman testified that the main charge was
double base smokeless powder and that the detonator contained a high
explosive. These statements, Whitehurst asserts, rest on conjecture. We
disagree. As noted above, Martz found Red Dot double base smokeless powder
in debris from the Birmingham bomb. Thurman relied on this fact and the
observable characteristics of the bomb debris to conclude that double base
smokeless powder was the main charge.

With regard to the detonators, Martz did not identify primer in the debris from
either the exploded Birmingham or Savannah devices. The FBI Laboratory
reports, which were produced to the defense at trial, reflect this fact. Thurman's
conclusion that these bombs also utilized a detonator containing a high
explosive rested primarily on similarities in the debris indicating that the bombs
had detonators constructed from pen casings, a distinctive wiring system, and
an initiator devised from a flashbulb. Thurman also noted that a mockup
device, which included a high explosive detonator, had been detonated by the
FBI and the resulting fragmentation was similar to that observed in the
exploded bombs.

Thurman did not, in our view, fabricate evidence in opining that the
Birmingham and Savannah detonators contained a high explosive. He did have
a reasoned basis for that opinion. Thurman did not in his testimony or reports
state that analytical tests had confirmed the presence of primer in the exploded
mail bombs. The defense attorney could have explored the basis for Thurman's
opinion on cross-examination. Instead, the defense did not dispute that each
device contained double base smokeless powder and a high explosive
detonator. This may have reflected a tactical decision, since the defense
attorney attempted to raise doubt in the mind of the jurors not by arguing that
the 1989 bombs were different from each other, but by arguing that Moody
could not be connected to these bombs because Red Dot smokeless powder was
not found in Moody's house and the 1989 bombs were different from the 1972
device.

Whitehurst is correct insofar as he suggests that the type of explosives residue
analysis performed by the MAU might have confirmed the presence of primer
in the exploded devices. Martz acknowledged in his interview with us that, in
retrospect, it would have been desirable to have examined the exploded devices
for traces of primer residues. This again shows that the Laboratory should have
clearly delineated which unit would analyze explosives residue and what tests
would be performed.

Another complaint by Whitehurst is that Thurman lacked a basis to testify that
the characteristics of the metal fragments from the Birmingham and Savannah
bombs indicated there was a low-explosive main charge initiated with a high
explosive detonator. Such testimony, Whitehurst says, is fabricated evidence
and has no basis in fact. Whitehurst maintains that the observable
characteristics of the metal pieces could have been caused by [a]ny number of
other energetic materials. We find that Thurman had some basis for his
statements. They reflected his personal experience observing exploded devices
and the results of the FBI's detonation of the mock-up device modeled on the
bombs sent to Savannah, Atlanta, and Jacksonville.

Whitehurst further asserts that Thurman incorrectly stated that the cut-off
between high explosives and low explosives is where the shock wave travels at
more than 3,000 feet per second. Thurman's statement is technically incorrect.
See Attachment C, infra. We note, however, that it is not uncommon for bomb
technicians or persons working in the field of explosives ordnance to
distinguish high from low explosives by the explosive's velocity. The technical
error here was inconsequential.

With respect to the Birmingham device, Thurman was asked on direct
examination whether he had been able to reconstruct the bomb. Thurman said
he had, and then agreed that he had been able to do so to a high degree of
scientific certainty. Whitehurst asserts that Thurman perjured himself because
he lacked scientific training and he knowingly and purposely had circumvented
the FBI's protocol for the analysis of explosives residue. We do not agree with
these accusations. Thurman's comments about being able to reconstruct the

Birmingham device were preceded by fifteen pages of testimony about that
device. When the prosecutor subsequently asked Thurman if he had been able
to reconstruct the device to a high degree of scientific certainty, no objection
was made to the possibly ambiguous nature of the question or to Thurman's
qualifications to respond. By answering affirmatively, Thurman did not in our
opinion perjure himself or intentionally misrepresent his background. As
explained above, Thurman did not circumvent an FBI protocol in the analysis
of the mail bombs.

Whitehurst also alleges that Thurman relied on conjecture in testifying that the
location of a metal rod in the debris of the Savannah bombing indicated that the
pipe had been full of powder. At the trial, Thurman stated that in photographs
of the crime scene, he saw the metal rod on a desk at the scene of the explosion.
He observed that the rod's essentially intact condition suggested that the rod
was at the center of the bomb and had dropped straight down after the
explosion. He further opined that the rod's location indicated that the pipe in
which it was contained had been totally full of powder, so that you have got
equal pressure all the way around this threaded rod.

Thurman did not base his opinion that the Savannah device was full of powder
on any analytical test results. We do not agree, however, that his opinion was
therefore merely conjecture. Thurman reasoned that if the rod connected the
plates through the middle of the pipe, and the rod was found at the center of the
explosion, the pipe must have been filled with powder so that the rod was at the
center of the explosive force. According to Thurman, when the FBI detonated
its mock-up bomb in a model of Robinson's office, the connecting rod was
again found at the center of a desk. There was a reasonable basis for Thurman's
opinion, and the defense attorney could have explored the basis for that opinion
on cross-examination.

With regard to the Atlanta device, Whitehurst asserts that Thurman fabricated
evidence on the witness stand when he testified that black particles on the
recovered detonator were Red Dot smokeless powder. This accusation lacks
any factual basis. The analysis done by the CTU identified Red Dot smokeless
powder on the Atlanta detonator, as was noted in the Laboratory's March 3,
1990, report. Thurman relied on these results in his testimony.

D. Claims That Thurman Testified Outside His Expertise

Whitehurst makes several claims that Thurman testified about matters beyond
his training or qualifications. Such testimony, Whitehurst maintains, violated
FBI Laboratory policy. Related arguments made by Whitehurst are that
Thurman testified about certain matters without supporting scientific tests or he
improperly testified about results reached by other examiners.

To evaluate these arguments, several background points must be kept in mind.
The FBI Laboratory did not at this time have any expressly stated policy
concerning the permissible scope of an examiner's testimony. The common
understanding within the Laboratory was that examiners should be careful not
to stray outside their expertise, a point that reportedly was emphasized in the
moot courts that were part of the examiner qualification process. During our
investigation, many examiners told us that in testifying they had sometimes
been asked to read into the record conclusions reached by other, non-testifying
examiners. This generally was viewed as acceptable so long as the testifying
examiner was careful not to comment further as to matters on which he or she
lacked personal knowledge.

In the VANPAC case, Thurman, as the principal examiner, received dictation
from other auxiliary examiners which he in turn incorporated into the
Laboratory reports. He presumably was the examiner with the best overview of
the work done by the Laboratory in the case. The defense received copies of
Thurman's reports, which set forth the findings made by different units within
the Laboratory. The attorney who led Moody's defense agreed before trial that
Thurman could testify as a summary witness about the results of work done by
certain auxiliary examiners. Thurman similarly understood from the
prosecutors that he would testify about results reached by certain other
examiners. Moreover, we note that an expert may properly draw on personal
experience or common sense in forming opinions, and a conclusion is not
necessarily improper because it is not based on a scientific test.

Whitehurst complains that Thurman testified outside his expertise in stating
that a white sealant material or RTV was rubbery and spongy at room
temperature and that nails found in the debris were bent by the explosion. The
comment about the RTV appears to have been properly based on Thurman's
own personal knowledge. In stating that the nails had been bent from the
explosion, Thurman drew a common sense inference from the presence of bent
nails among the debris. Similarly bent nails were found in the debris from the
mock-up device detonated by the FBI. We do not think Thurman's statements
about the RTV or nails were improper.

Thurman also testified that the use of welded end plates in the devices would
create more pressure within the bomb and that the detonator would have been
placed inside at least hours after the welding was done. We think the first
statement is unobjectionable and was properly based on Thurman's experience.
Thurman noted in our interview that it is not uncommon for pipe bombs to
explode by simply blowing off their end caps, leaving the pipe itself intact. One
could reasonably conclude that the use of welded end plates would cause more
pressure to build up before the pipe exploded. Thurman's statement that the
detonator would have been placed inside the pipe at least hours after the
welding reflected his view, which seems merely common sense, that no one
would place the high-explosive primer into a hot metal pipe.

Thurman testified that certain testing had been done by the Serology and DNA
units, and that the results were negative in that no traces of saliva were found.
These statements were consistent with the underlying Laboratory reports. We
do not agree with Whitehurst's contention that Thurman violated Laboratory
policy by testifying on these matters.

Similarly, Thurman testified about paint and tape found in the devices. During
that testimony, Thurman noted that the Laboratory had determined that 2-inch
wide, tan plastic tape and black paint found in the devices were from the same
source or manufacturer. In this regard, Whitehurst asserts that Thurman was
simply fabricating evidence to suit his hypothesis that all the bombs were made
from the same source.

Thurman in fact was testifying based on the analytical work and dictation of
MAU examiner Robert Webb. Webb, an experienced examiner in the MAU,
examined several items of evidence during the VANPAC investigation. In
examining packaging tape, black paint, RTV, and glue found in the devices,
Webb followed an unwritten protocol that included microscopic examination,
so-called wet chemical analyses, analysis with Fourier Transform Infrared
Spectroscopy (FTIR), and Pyrolysis Gas Chromatography (PGC). Based on
these techniques, Webb concluded that packaging tape in each device came
from the same manufacturer and the same batch or lot, that black paint in each
device had physical and chemical characteristics indicating it came from the
same manufacturer, that RTV sealant in each device had physical and chemical
characteristics indicating it was from the same manufacturer and originated
from the same batch or lot, and that glue in three of the devices had physical
and chemical characteristics indicating it came from the same manufacturer.

Thurman did not fabricate evidence or otherwise testify improperly about the
paint and tape analysis insofar as it was based on Webb's dictation. Webb had
described his conclusions about the comparison of samples of paints, adhesives,
and tape in auxiliary examiner dictation dated March 19, 1990. Thurman
incorporated this dictation verbatim into the FBI Laboratory report dated April
2, 1990. As part of our investigation, Webb reviewed Thurman's testimony
about the paint and tape and observed that it was consistent with Webb's
dictation.

Whitehurst also has maintained that the conclusion that the black paint came
from the same manufacturer is flawed because data do not exist to allow one to
say that two samples with a similar chemical composition necessarily came
from the same source. A similar criticism could be made concerning the
conclusions that the 2-inch wide tape and the RTV sealant came from the same
batch or lot. When asked in our investigation about his conclusions, Webb
maintained that in his experience, the battery of tests he employed would reveal
some differences if paint samples did not come from the same manufacturer or
if the tape had been made in different batches or lots.

We find that Webb's conclusions about the tape, paint, RTV, and glue were
stated more strongly than was justified by the results of his examinations and

the background data. As a general matter, we question the validity of Webb's
working proposition that the examinations he performed would have
necessarily revealed some differences if the materials had come from different
manufacturers (or different batches or lots for the tape and RTV). At the time
of the VANPAC case, neither Webb nor the FBI had a data base to confirm that
black latex paints, RTV, glue, and tapes like those involved in the samples did
in fact differ among manufacturers in terms of their chemical composition and
physical characteristics. Moreover, the tests that Webb performed had not been
validated by the FBI or, to our knowledge, any other laboratory, with regard to
their ability to successfully determine if samples actually came from the same
source. In these circumstances, the methods employed by Webb would allow
an examiner to conclude that samples could have come from the same source or
manufacturer, but not to opine that they necessarily did.

Webb's conclusions about the common origin of the different samples also
seem overstated in light of differences in the results from certain analyses he
performed. More specifically, the PGC chart for the black paint from the
Jacksonville device contains a peak not observed on the PGC charts for
samples from Atlanta and Birmingham; the FTIR chart for a sample of glue
from the Atlanta device contains a peak that is absent from the FTIR results for
glue from the Jacksonville device; the PGC chart for a clear glue sample from
Atlanta has a peak absent from the PGC charts for another sample from Atlanta
and a sample from Jacksonville; the FTIR chart for a sample of RTV from the
Savannah device has a different pattern than the FTIR charts for samples from
Atlanta, Jacksonville and Birmingham; and the PGC chart for a sample of RTV
from Birmingham has a peak absent from the PGC charts for samples from
Atlanta and Jacksonville.

With regard to the comparison of the 2-inch wide tapes, charts could not be
located for analyses done on samples from Atlanta and Jacksonville. The FTIR
charts for the tape adhesive from the Birmingham and Savannah devices
exhibit several differences. The notes that we reviewed do not explain how
Webb reconciled these differences with his ultimate conclusion that tape found
in each of the four devices had come from the same batch or lot. When we
interviewed Webb about these differences, he said that they may reflect
contamination, variations due to sample preparation, the fact that tests were run
on different dates, or calibration. Webb acknowledged that certain differences
in the test results for the tape and other items he examined are significant

enough to require further explanation, but he did not retract the conclusions he
reached in 1990 about the common origin of the identified samples.

The differences noted above do not in themselves establish that samples of a
particular substance, such as paint or tape, did not have a common origin. Such
differences, however, appear to preclude the firm conclusion that the samples
came from the same source or manufacturer (or batch or lot). Our questions
about the differences in the test results remain unresolved, in part because the
case files do not include all the pertinent charts or complete notes explaining
the basis for the ultimate conclusions.

We conclude that Webb did not intentionally attempt to fabricate evidence or to
present biased conclusions in his work on VANPAC. It appears that Webb's
unit chief reviewed and approved his conclusions about the intercomparison of
paint, adhesives, and tape. More significantly, Webb also did analytical work
and prepared dictation that identified differences between certain samples. For
example, he concluded that the white glue found in the Birmingham device did
not match samples from the other devices. He also concluded, as was stated in
the FBI reports, that certain glues and tape seized from Moody's residence and
storage area did not match samples from the explosive devices. Such a match
would, of course, have been very incriminating.

The comparison of tapes, paints, and adhesives in VANPAC does illustrate
several areas in which we think the ASCLD/LAB accreditation process should
improve the quality and consistency of the Laboratory's work. To become
accredited, the Laboratory will have to assure that there are written, validated
procedures for standard analytical techniques and examinations. Such protocols
did not exist within the Laboratory for the types of analyses done by Webb
during the VANPAC case. Accreditation will also require the Laboratory to
provide for the review of reports to confirm that examiners' conclusions are
reasonable and within the constraints of scientific knowledge. In order to
become accredited, the Laboratory will also be required to maintain a case
record that includes all the notes, worksheets, charts, and other data that
support the examiner's conclusions. Such complete information was not
included in the files we reviewed for the VANPAC case and several other
matters that were the subject of our investigation.

Whitehurst also complains that Thurman improperly testified outside his
expertise with respect to metallurgical matters. Thurman testified that a rod
found in the debris from the Savannah device had been stretched as a result of
the explosion. On cross-examination, he admitted that the metal people in the
Laboratory could sometimes identify metal filing residues from files or
grinding wheels and compare them to other metals. Defense counsel then
elicited Thurman's acknowledgment that no metal residue was found in
grinding wheels or files seized from the defendant that could be compared to
debris in the bombs.

Thurman's testimony about the effects of the explosion on the rod was based on
his visual inspection of the rod. The Laboratory reports did not indicate that any
analytical test had been performed to confirm that the explosion caused the
stretching of the rod. We do not believe that Thurman testified improperly in
opining that the rod had stretched as result of the explosion. If the defense
attorney had wished to explore the basis for Thurman's comments, he could
have done so on cross-examination.

We also think Thurman responded properly to the questions that were posed on
cross-examination concerning metallurgy. If he in fact believed that the tests he
was asked about could be performed, and if to his knowledge no metal debris
was found on wheels and files for comparison purposes, we think he was
obliged to respond as he did. Notably, in responding to these issues, Thurman
was conceding points the defense wished to develop, which further belies the
allegation that Thurman was determined to perjure himself or fabricate
evidence to secure a conviction.

Whitehurst also asserts that during the cross-examination, Thurman improperly
testified outside his expertise concerning paints, tool marks, DNA analysis,
smokeless powder, and the analysis of primers. With respect to paints,
Thurman was asked whether you would have the capability of matching the
paints, if black paint had been found at the defendant's properties. Thurman
responded, I would expect so, yes, sir. Given the reports Thurman had received

in the case from examiner Robert Webb, we see no basis to criticize Thurman's
response.

The defense counsel later asked Thurman to explain what a useful gripping tool
mark would be. Thurman noted he was not a tool mark examiner, but said he
would try his best. He then explained how some tools will leave identifying
marks that allow a particular tool to be matched with a marked object. Thurman
then acknowledged that no identification had been made in the case with
respect to certain tools seized from Moody.

Regarding DNA analysis, Thurman acknowledged that this was a new
scientific technique and the defense attorney himself noted that Thurman was
not a DNA expert. Thurman agreed that an enzyme called amylase that is in
saliva can be used for DNA analysis. In response to further questioning,
Thurman admitted that DNA testing could not be done on certain envelopes
because no amylase was recovered from them. Defense counsel then had
Thurman concede that there was no DNA match to Moody based on the
envelopes.

With respect to smokeless powders and primer, Thurman admitted Moody's
house had been vacuumed in virtually every conceivable area to identify
minute microscopic grains of gunpowder, but none had been found. He was
also asked if he recalled that the CCI primer had a unique two percent
aluminum component. Thurman noted that the question concerned
examinations done by Martz, and that he thought Martz would be testifying
during the trial. When asked if the primer material could be obtained not only
from primers but also from small arms ammunition, Thurman told the defense
attorney he would have to pose the question to Martz. When asked if powders
could be matched to determine if they were from the same batch, Thurman
said, sometimes yes, sometimes no, and again referred the question to Martz.
The defense attorney noted that primer had not been recovered from all four
devices, and Thurman then agreed that the Laboratory had not been able to
determine that the primer recovered from the devices and the primer sold by
Sartain to Moody had come from the same lot.

On cross-examination, Thurman further admitted that the Laboratory had not
been able to match a keg of Red Dot smokeless double base gunpowder
obtained from the Shootin' Iron Gun Shop with the gunpowder found in the
four bombs. On re-direct, Thurman noted that although batches could not be
matched, the powder was of the same type and the same manufacturer.
Thurman also said the CCI primer that Sartain said he sold to Moody was of
the same type and manufacturer as that used in the bombs.

Thurman did not improperly testify outside his expertise or contrary to FBI
policy with respect to the matters raised in his cross-examination. As noted
above, Thurman as principal examiner had assembled the Laboratory reports
after reviewing the dictation of the various auxiliary examiners, and defense
counsel had agreed that he could testify as a summary witness. In an apparent
effort to raise doubt about the connection between Moody and the mail bombs,
the defense counsel sought Thurman's acknowledgment that the Laboratory had
not made certain findings. If anything, Thurman might have been fairly subject
to criticism if he had refused to concede the points he did.

In testifying about the DNA tests, Thurman correctly stated that there had been
no DNA match to Moody, but his testimony was inaccurate in a relatively
minor respect. Thurman erred in agreeing with the defense attorney that the
DNA testing was based on amylase recovered from saliva. Amylase is an
enzyme present in saliva, but it is not the basis for DNA analysis. Such analysis
can be based on epithelial cells taken from saliva. The FBI Laboratory reports
noted in separate sections that serological tests for amylase were negative and
that DNA test results could not be obtained. Thurman's imprecision regarding
the DNA tests illustrates that examiners must be very cautious in testifying,
even as summary witnesses, outside their area of expertise.

We also think Thurman testified appropriately on re-direct in stating that the
smokeless powder and primers that Sartain said he sold to Moody were of the
same type and by the same manufacturer as the materials used in the bomb.
Whitehurst asserts that Thurman could not have known that the smokeless
powder was of the same type because Hercules manufactures Red Dot powders
for sale in products other than the canister powder identified by Sartain.
Whitehurst evidently believes that Thurman, by saying the powder was of the

same type, misleadingly indicated it could only have come from one kind of
container. We disagree with this interpretation of Thurman's testimony. With
respect to the primer material, Thurman had earlier acknowledged that it was
not found in all four devices. When Thurman agreed on re-direct that the CCI
primer that Sartain said he sold to Moody was the same type as that used in the
bomb, Thurman would have been more precise if he had said the same type as
was identified in the two unexploded bombs.

Whitehurst makes two criticisms about Thurman's testimony on crossexamination which we think are best characterized as disagreements over the
choice of words. Thurman agreed when the defense lawyer asked if he had, as
the supervisory scientist, received all the reports of scientific examinations in
the case. Whitehurst claims that this is misleading and a fraud upon the court
because Thurman is not a scientist. We do not agree. Earlier in his testimony,
Thurman had explained both his experience and the fact that as principal
examiner he had coordinated the work done by various laboratory units on the
case. Thurman could have spoken more precisely by stating again that he was
the principal examiner rather than accepting the defense counsel's phrase
supervisory scientist.

Whitehurst also states that Thurman incorrectly agreed with the defense
attorney that smokeless powder has a dusty residue. The defense attorney
phrased in everyday language how many people would describe the feel of such
powders, but to be technically accurate, Thurman should have noted that they
do not actually leave a residue of dust. Before Thurman testified, ATF Agent
Frank Lee had agreed on cross-examination that, double base smokeless gun
powder is like a dust and will adhere to walls, floors, clothing, [and] vacuum
cleaner brushes. The defense attorney apparently sought to compare smokeless
powder to a dust as background to his emphasizing that no traces of smokeless
powder were found in the searches of Moody's house or the storage unit he
rented. Both Lee and Thurman acknowledged that no smokeless powder was
found in the searches.

E. Claims That Martz Misled the Jury About His
Qualifications

Whitehurst contends that Martz testified in a misleading way about his
education and qualifications and the role of the CTU. Martz testified that he
received a bachelor's degree from the University in Cincinnati and had worked
as a chemist for several years both before and after he had joined the FBI.
Whitehurst complains that Martz failed to disclose that his bachelor's degree
was in biology rather than chemistry and that he had never been qualified by
the FBI to examine explosives residue.

Martz was not asked on either direct or cross-examination to identify his
undergraduate major. Since 1980, Martz has been qualified as a forensic
chemist examiner within the FBI Laboratory. Martz has stated he had 40
quarter credit hours in chemistry during college, and he worked as a chemistry
technician in the CTU before becoming an examiner. With regard to the
analysis of explosives, Whitehurst is correct that Martz never completed the
MAU's program to become qualified by that unit as an explosives residue
examiner. As noted above, however, the CTU had analyzed smokeless powders
since the early 1980s. We do not think that Martz testified improperly with
respect to his background or qualifications.

Martz testified that in the CTU, [w]e do chemical analyses on . . . evidence. In
some cases, it may be drugs, in other cases it may be arson, or the identification
of an accelerant, the identification of explosives. We do a wide range of
identification of unknown chemicals. Whitehurst asserts that Martz led the trier
of fact astray because the CTU never was entrusted with the analysis of
explosives. This allegation again reflects Whitehurst's view that the MAU was
solely responsible within the Laboratory for the analysis of explosives. The
CTU, however, was at least analyzing smokeless powders, as several witnesses
confirmed during our investigation.

F. Claims That Martz Improperly Testified
About Smokeless Powders Found in the Devices

Apart from the allegations previously discussed that the analysis by Martz was
flawed because he did not follow the MAU protocol, Whitehurst also criticizes
other aspects of Martz's testimony concerning smokeless powders.

On direct examination, Martz agreed that Red Dot smokeless powder came in
the types of canisters represented by three exhibits. Whitehurst suggests Martz
should have volunteered that the powder also comes in other types of products
and containers. Similarly, Whitehurst states that Red Dot smokeless powder
might be removed from manufactured ammunition. These points, if relevant,
could have been developed by the defense attorney on cross-examination.
Given the questions posed, Martz's responses were not improper.

Whitehurst also asserts that Martz lacked knowledge to testify about the
degradation of smokeless powders and that he gave misleading testimony about
his inability to match smokeless powders found in the devices with powder
later obtained from the Shootin' Iron Gun Shop. Our interview with Martz left
us persuaded that his remarks concerning degradation of smokeless powder had
a basis in his prior work in the Laboratory, but his testimony about his attempts
to compare powders was unnecessarily ambiguous.

With regard to determining whether different powder samples came from the
same lot, Martz received a can of Red Dot smokeless powder that had been
obtained from the Shootin' Iron Gun Shop sometime after Moody had bought
powder there from Sartain. In our interview, Martz said he initially opposed
attempting to determine if powder samples had come from the same lot,
because he knew that smokeless powder's chemical composition changes with
exposure to air and he anticipated that samples would yield different results.
Martz performed liquid chromatography and gas chromatograph/mass
spectrometer analysis of a sample from the can obtained from the Shootin' Iron,
a sample from the Jacksonville device, and other lots of Red Dot smokeless
powder from the Laboratory. Martz observed similarities and differences in his
test results. This caused him to conclude, as stated in the Laboratory report
dated June 6, 1990, that he could not determine whether the smokeless powder
obtained from the Shootin' Iron came from the same lot as smokeless powder
recovered from the bombs.

In his direct testimony, Martz stated that he examined four exhibits consisting
of powder from each of the four devices and that the powder was Hercules Red
Dot smokeless powder. Martz then acknowledged that he had also received a
four-pound can of Hercules Red Dot smokeless powder. He then testified as
follows:

Q: Were you asked to compare the four specimens in front of you
with the off-the-shelf can?

A: Yes, I was.

Q: Did you do that?

A: Yes, I did.

Q: Could you determine anything at that point?

A: No, I was not able to determine it. Even the smokeless powder,
as I mentioned, will break down over time. And I was not able to
successfully compare this particular smokeless powder with that
because of the different environments that the powders were in.
That was a can that was sealed when I got it. These particular
powders were placed into pipe bombs, some of them exploded,
some of them didn't. And I was not able to make that comparison.

Q: Hypothetically, from a chemical point of view, is it possible
for you to take shell (sic) powder and powder from an exploded
device and tell whether or not it is from the same batch?

A: Not after the -- in my opinion, not after the bomb has gone off
you can not make that comparison.

Later on cross examination, Martz again stated that he had tried to compare the
powders but was unable to do so. The defense attorney asked, [t]hey were both
Red Dot but you could not determine from your comparisons if they came from
the same batch? Martz responded that he could not make that determination.

Martz was ambiguous in stating on direct examination that he had been unable
to successfully compare the powders. In fact, he did compare a sample from the
Jacksonville device, a sample from the four-pound can, and some known
samples from the Laboratory. He should have stated more directly that he
found differences and similarities when he compared certain samples. The
differences, however, were insufficient to draw a meaningful conclusion as to
whether the powders originated from different lots. As Martz stated in his
interview with us, he found nothing in his comparison work suggesting that the
samples had come from different lots. Accordingly, we conclude that Martz did
not suppress exculpatory information regarding his comparison of the powder
samples.

G. Claims That Martz Improperly Analyzed Primers

Whitehurst asserts that Martz should not have testified about the identification
of primers in the detonators because examiner Roger Peele in the Elemental
Analysis Unit (EAU) was responsible for primer residue analysis.

The green powder found in the detonators was sent initially to the CTU for
analysis because its chemical composition was unknown. Based on analyses
with infrared spectroscopy and a scanning electron microscope, Martz
determined that the green powder was similar to primer materials that he had
recently been analyzing. Through contacts with industry representatives, Martz
learned that small arms primers made by CCI Industries were unique in having
a 2% aluminum content.

In order to have the composition of the green powder analyzed further, Martz
recalled that he asked Charles Peters, who then was an EAU technician, to
perform inductively coupled plasma (ICP) atomic emission spectroscopy
analysis of the samples. A logbook maintained by Peters indicates that he
performed primer analysis for Martz in January 1990. Peters told us he could
not specifically recall his work on the VANPAC case, and said he would have
forwarded all his analytical results to Martz. Results of the ICP analysis have
not been located, but Martz recalls that they confirmed a 2% aluminum content
in the primers.

Roger Peele told us that he thought there was nothing improper in Martz's
having analyzed the primer material in the VANPAC case. The EAU, Peele
explained, at that time attempted to confirm the presence of gunshot primer
residues on persons suspected of firing a gun by locating antimony and barium,
components of primers. This analysis did not attempt to identify the particular
primer or its manufacturer based on the overall composition of the primer.
Peele believed that some interaction of units would have been necessary even if
the unidentified green powder had first gone to the EAU, and he thought Martz
properly involved the EAU by having Peters perform the ICP analysis.

H. Testimony by Martz About the Search at Moody's House

On direct examination, Martz said that he had participated in a search of
Moody's house in January 1991. He described his assignment as looking for
residues of primer material and also smokeless powder. Martz explained that he
and other agents had vacuumed the house and even pulled up a floor that

Moody had replaced. Martz acknowledged on cross-examination that they had
searched throughout the house, including the bags and brushes of vacuum
cleaners that were there, and found no evidence of Red Dot smokeless powder.

Whitehurst complains that Martz was not qualified to search for residues. He
also asserts that Martz lacked any basis to say that what was found in the search
could have been affected if someone had vacuumed the area previously. We do
not believe Martz lacked qualifications to conduct the search he described.
Martz's statement that the results of his search might have been affected if
someone had already vacuumed the scene strikes us as unobjectionable
common sense.

Finally, Whitehurst complains that Martz lacked a basis to state on crossexamination that if any chemical tests had been done under the house, there
would likely be detectable residue remaining on the pipes. Martz's observation
was based on his experience as an agent and chemist, and we do not think it
was improper because it was not supported by specific data or analytical
results. In response to further defense questions, Martz said he had taken
swabbings of pipes and other areas of the house looking for gunshot residues.
He then acknowledged that no evidence of primers was found. The defense
clearly pursued this line of testimony to underscore that although the FBI had
conducted an extensive search, certain evidence was never found at Moody's
house.

I. The Conduct of the Prosecutors

Whitehurst has suggested that prosecutors Howard Shapiro and Louis J. Freeh
may have engaged in misconduct through their presentation of testimony by
Martz and Thurman or their arguments in the VANPAC case.

We find no basis to conclude that either Shapiro or Freeh knowingly presented
any improper evidence in the case. Both Freeh and Shapiro said that while they

worked on the case they had never heard any suggestion that there was any
impropriety in how the evidence had been analyzed within the Laboratory. Nor
did they ever hear any suggestion that Thurman or anyone else had attempted
to circumvent the Laboratory's procedures for the analysis of explosives or that
the MAU should have done certain work rather than the CTU.

With respect to the closing argument, Whitehurst notes that Freeh reminded the
jury of testimony by Paul Sartain, who said he had sold Moody four pounds of
gunpowder and 4000 primers in December 1989. Whitehurst asserts that Freeh
did not know what kind of explosive was used in the bombs, so this evidence
was not probative in tying Moody to the bombs. For reasons noted earlier, we
think that the FBI examiners could reasonably conclude that Red Dot
smokeless powder and a high explosive detonator were components of each
bomb. Sartain's testimony noted by Freeh in closing was both relevant and, in
our view, highly probative.

Whitehurst also questions the basis for Freeh's remark to the jury that some
eighty nails were traveling at 13,000 feet per second in the Birmingham bomb
that killed Judge Vance. When interviewed in our investigation, Director Freeh
could not recall the specific basis for his remark. The comment about 13,000
feet per second may reflect that Freeh misspoke or that the court reporter
misheard him. Thurman testified that the cutoff between high and low
explosives was 3,000 feet per second, and Freeh may have had in mind that
number in his remarks. Both Thurman's testimony and the relevant Laboratory
report indicated that eighty nails were attached to the Birmingham bomb.

Whitehurst also notes that Freeh in his closing commented about black paint
being sprayed inside the devices to cover up fingerprints and also asked why
every color of paint was found at Moody's house other than black. The
statement that paint was sprayed was incorrect, as the Laboratory reports
indicated the paint was brush-applied, and Thurman testified that the
Laboratory had determined that the paint was hand-applied. We have no reason
to think this was anything other than an honest mistake by Freeh. Whitehurst's
other complaint here is that an FBI paint examiner, and not Thurman, should
have testified about the significance of the paint. As noted above, Thurman

understood and Moody's lawyer confirmed that Thurman could testify as a
summary witness.

Freeh also stated in his closing that Thurman had been very conservative in his
testimony. Freeh noted that Thurman did not conclude that the partially
constructed Chamblee device was made by the same person who built the 1972
and 1989 devices. Whitehurst asserts that the jury may have been misled by
these remarks because Thurman testified incorrectly, outside his expertise, or
without a basis on various matters. We have addressed the allegations about
Thurman's testimony above, and we find no basis to conclude that Freeh misled
or attempted to mislead the jury in his comments about Thurman.

Whitehurst also notes that Howard Shapiro referred in the government's
rebuttal argument to a survey conducted by the FBI that involved some 16,000
devices in a computer data bank and 217 crime laboratories around the country.
Shapiro stated that the survey had not found any other device with certain
features present in both Moody's 1972 bomb and three of the 1989 bombs.
Whitehurst states that [t]his evidence should be thoroughly reviewed in detail
because an EU technician named Mike Fanning had told Whitehurst that the
FBI's Express computer data base had been built because the EU lacked such a
data base at the time of the VANPAC case.

Shapiro's remarks in closing were based on Thurman's testimony. With regard
to data bases, Thurman testified that the FBI had access to essentially three data
bases: the EU's collection of previous Laboratory reports; the information on
bombing incidents collected by the FBI's Bomb Data Center; and the data base
maintained by the ATF. Thurman later described a review the FBI had
conducted to determine if there had been other bombing incidents with devices
with features similar to those of the bombs involved in VANPAC. He noted
that the FBI had examined its own data base as well as the data bases
maintained by ATF and the U.S. Postal Service and also had sent a survey to
217 forensic laboratories. Subsequently, Thurman testified that the survey and
data bases had involved more than 16,000 devices, and that no devices were
identified other than those involved in VANPAC that had certain design
features and were designed to be sent in the mail.

The statements by Thurman and Shapiro concerning the review of some 16,000
devices had a factual basis. We interviewed Steve Schied, an Intelligence
Research Specialist with the ATF, who has overseen the Exis data base since
1975 and who reviewed the data base for the VANPAC case. Schied said that
at the time of the VANPAC case, the ATF Exis data base alone included
15,921 entries. He observed that it would have been accurate to say that the FBI
survey involved approximately 16,000 devices based only on the ATF data
base. Insofar as the FBI also examined other data bases and surveyed other
forensic laboratories, we find Thurman could properly testify that the FBI's
review involved more than 16,000 devices.

IV. Conclusion

We find no basis for the allegations made by Whitehurst that Thurman and
Martz obstructed justice, circumvented Laboratory protocols and procedures,
perjured themselves, or fabricated evidence in the VANPAC case. We also find
no support for Whitehurst's suggestion that Freeh or Shapiro engaged in
prosecutorial misconduct. As explained above, there were certain areas in
which we believe that agents Thurman or Martz testified ambiguously or, in
relatively minor ways, inaccurately. We do not find any basis to conclude that
this testimony involved knowing or deliberate misconduct.

Given the documentation we were provided by the FBI, we also conclude that
the conclusions made by examiner Robert Webb concerning the origin of black
paint, glue, RTV, and 2-inch wide tape were stated more strongly than was
justified by the methods employed and the analytical results. We find that
Webb did not intentionally attempt to fabricate evidence or to present biased
conclusions.

The case does highlight several areas in which we believe the Laboratory's
procedures should be improved. The Laboratory would benefit from: (1)
expressly stated and agreed upon guidelines concerning the respective

responsibilities of different units with regard to explosives analysis; (2) clearer
guidance as to the proper scope of principal examiner testimony concerning
work done by auxiliary examiners; (3) an improved record retention and
retrieval system; (4) written and validated protocols for standardized
procedures; and (5) file review to ensure that conclusions are supported by
appropriate analysis and data.

#####

SECTION C: WORLD TRADE CENTER BOMBING

I. Introduction

On February 26, 1993, an explosion occurred at the World Trade Center, in
New York City, New York, resulting in six deaths, numerous injuries, and
substantial property damage. An investigation was undertaken by the FBI, as
lead agency, with the assistance of other agencies including the ATF and the
New York City Police Department. Several defendants were indicted, tried, and
convicted in a case dealing primarily with the Trade Center bombing--United
States v. Salameh, which was tried from September 1993 to March 1994 in the
Southern District of New York. A broader case, which included evidence of the
Trade Center bombing (United States v. Omar Ahmed Ali Abdel Rahman a/k/a
Sheik Omar ), was tried in 1995 in the Southern District of New York, resulting
in the conviction of the defendants.

Prior to the Salameh trial, Whitehurst complained about several matters, all of
which were resolved to his satisfaction prior to trial. On January 8, 1996,
Whitehurst submitted to the OIG an 80-page critique of the Salameh testimony
of SSA David Williams, an examiner in the Explosives Unit. Whitehurst
covered a multitude of topics and concluded that Williams misrepresented the
truth, testified outside his area of expertise, and presented testimony biased in
favor of guilt.

To investigate Whitehurst's allegations, we interviewed Whitehurst, Williams,
EU Chief J. Thomas Thurman, Special Agent Steven Burmeister (an examiner
who worked on the case), former MAU Chief James Corby, CTU Chief Roger
Martz, other examiners and employees at the FBI Laboratory, a chemist at the
Eglin Air Force Base, persons who allegedly discussed the case with Williams
prior to the Salameh trial, other FBI and ATF personnel (some of whom
worked at the scene of the blast), and other persons associated with the case.
The interviews of Whitehurst, Williams, Thurman, and Martz were sworn and

transcribed. Additionally, we considered relevant trial transcripts, pertinent FBI
documents, and applicable literature in the field of explosives.

As explained below, we conclude that in the Salameh trial Williams gave
inaccurate and incomplete testimony and testified to invalid opinions that
appear tailored to the most incriminating result. Regarding most of Whitehurst's
many other allegations, we either find them meritless or conclude that any error
was insignificant. We first address the allegations relating to Williams' Salameh
testimony (Section II), then the pre-trial issues (Section III), followed by our
conclusion (Section IV).

II. Testimony of SSA David Williams in the Salameh Trial

David Williams testified at length on direct examination in the Salameh case
regarding several areas, including the following: his manufacture of urea nitrate
pursuant to formulas found in manuals seized in the case; his calculation of the
amount of urea nitrate that could have been produced based on certain chemical
purchases; and the possible explosives used at the bombing and their weight,
based on the damage at the scene. On cross-examination Williams elaborated
on some of these subjects and opined specifically that the main explosive used
in the bombing was urea nitrate. The principal allegations relate to these areas
of Williams' testimony. We address first the FBI's manufacture of urea nitrate
(Section A), then Williams' opinions on defendants' capacity to make urea
nitrate and on the explosive used in the bombing (Section B), then Williams'
testimony regarding an attempt to modify Whitehurst's dictation (Section C),
and finally the other allegations concerning Williams' testimony (Section D).

A. FBI's Manufacture of Urea Nitrate

Whitehurst asserts that Williams falsely testified that Williams manufactured
urea nitrate pursuant to formulas in certain blue manuals that were seized in the
case and were linked to the defendants. Whitehurst maintains that Williams in

fact did not manufacture any urea nitrate and that the explosive was made by
other Laboratory personnel who did not use the formulas in the manuals. First
we will summarize Williams' testimony; then we will present the facts found in
our investigation and our analysis of the issues.

1. Williams' Testimony

Williams testified that he had experience in manufacturing or putting together
urea nitrate. He further testified that in manufacturing the urea nitrate I actually
used two formulas that were removed from one of the blue manuals. (The blue
manuals were manuals in Arabic and English for home-made bomb-making.)
Williams further testified that the formula recommends that you mix the urea to
the nitric acid in a one-to-one range;. . .[i]t suggests that you mix by amount 60
parts of urea to 63 parts nitric acid. He further testified, When I made a large
quantity of urea nitrate in the large plastic tubs, it was very heavy. On both
direct and cross examination, Williams used both the first person, singular
pronoun I and the first person, plural pronoun we to describe who made the
urea nitrate.

On cross-examination he testified:

Q. You reproduced an explosion using the same
chemicals and the formulas that was in the book?

A. Yes, I did.

Q. When did you do that?

A. In the early part of the spring and summer, we
started by making small batches of urea nitrate. And
then in August, I made approximately 1,300 pounds
of urea nitrate in Florida.

When asked whether he concocted a bomb with some of the urea seized in the
searches, Williams responded: I did. In the early tests in the summer, I used
some of the urea from Mallory [the location of one of the searches] and made
small one-pound bombs of urea nitrate and detonated it.

Williams further testified to the production of urea nitrate at the Eglin Air
Force Base in Florida in August 1993. When asked why he used an outdoor
laboratory there, he stated, I didn't want to have any of the fumes bother myself
or any of my workers. Williams testified that we started with smaller batches of
20 pounds of urea and 20 pounds of nitric acid. On cross-examination,
Williams listed the persons who worked on the project with him including
Whitehurst, Steven Burmeister, agents from the Jacksonville office of the FBI,
technicians in the Explosives Unit, and personnel from the Air Force Base. He
then testified:

Q. Okay. Anyone else you can remember?

A. I believe they were all that were immediately involved in the
mixing process.

Q. Okay. And of course you were involved as well?

A. That's correct.

Q. You were supervising this?

A. That's correct.
Williams further testified:
The first batch of urea nitrate that I made I relied on instructions.
After making it one time, you didn't need instructions any longer.
. . . The first bit of instructions came out of the blue manuals that I
saw the other day.

Williams testified that he used two formulas from the blue books to make the
urea nitrate. The first (G.Ex. 2781, p.172) was in Arabic and English. The
second formula (G.Ex. 2783T, p.2) was entirely in Arabic.

2. Facts

Personnel in the FBI Laboratory made several batches of urea nitrate prior to
the Salameh trial. Several small batches were made in the spring and summer
of 1993, and approximately 1200 pounds were made at Eglin Air Force Base in
August 1993.

a. Early Batches

The first two batches were made in test tubes by Chemist James Molnar on
March 8 and 9, 1993. He followed the procedures set forth in Davis, The
Chemistry of Powder & Explosives 372-73 (1943) ( Davis book ). For the
second batch, he calculated a synthesis yield of 97%. He wrote up his findings.

The next batch was made by Chemist Mary Tungol. She also followed the
procedures set forth in the Davis book. She also prepared a formula for the
synthesis of urea nitrate in a four or five gallon quantity. In summary, she
calculated the amount of water (2 gallons), urea (20 pounds), and nitric acid
(8.7 liters) needed to produce a theoretical (100%) yield of 42.5 pounds of urea
nitrate. Tungol made smaller batches (5 to 10 pounds of urea nitrate) using a
percentage of the quantities in the formula. These batches were taken to the FBI
range at Quantico, Virginia, and detonated.

Another batch was prepared by Whitehurst and Burmeister at Quantico
pursuant to the Tungol formula. It would not detonate because it had not been
properly dried.
b. Eglin

In August 1993, Williams, Whitehurst, Burmeister, and other FBI personnel
manufactured approximately 1200 pounds of urea nitrate at the Eglin Air Force
Base in Florida. Williams and Whitehurst jointly decided to undertake this
project, and both helped set it up, including the acquisition of the necessary
personnel, equipment, and materials. The mixing occurred outdoors. Reagent
grade (99% pure) or technical grade (about 97%) urea and reagent grade
(70.4%) or technical grade (67%) nitric acid were used, as well as distilled
water. Whitehurst and Burmeister did the mixing in plastic trash cans
surrounded by ice water to cool the solution. Although the evidence is
conflicting, the recipe they followed was apparently based on the one
developed by Tungol. First, the urea was weighed and dissolved in the distilled
water. Then the nitric acid was put in. Several batches were mixed at the same
time. Whitehurst and Burmeister wore protective clothing during the mixing.
After a precipitate (the urea nitrate) formed, the liquid was filtered through a
funnel. The urea nitrate was then put on drying trays, which were put in drying
ovens provided by Eglin. The urea nitrate was allowed to dry overnight.
Personnel from Eglin then weighed and bagged the urea nitrate. It took about
three or four days to produce the 1200 pounds of urea nitrate.

3. Analysis

We conclude that the basic point of Williams' testimony--that Williams
personally manufactured urea nitrate pursuant to formulas found in the blue
manuals--was inaccurate in two respects. First, no one in the FBI used the
formulas from the blue manuals to manufacture urea nitrate. Second, Williams'
role in the manufacture of the urea nitrate by the FBI was much more limited
than his testimony described. We reach these conclusions for the following
reasons.

a. Use of Formula

In his testimony Williams indicated that he personally took the formulas from
the blue books, followed them, and was able to produce the explosive urea
nitrate. Neither Williams nor anyone else in the FBI actually did this. The first
(test tube) batch, by Molnar, was made pursuant to the information in the Davis
book. From then on, the Tungol formula (also based on the Davis book) was
used. All of the formulas (Molnar's, Tungol's, and the Arabic) used the same
essential ingredients (urea and nitric acid). The weights and concentrations in
the FBI's formulas, however, were different from the weights and
concentrations in both of the Arabic formulas referred to in Williams'
testimony.

The first formula from the blue books (G.Ex. 2781) sets out the chemical
equation for the reaction and states that urea and diluted nitric acid (34%)
should be mixed. The formula does not prescribe dissolving the urea in water
before adding the diluted nitric acid (34%). Williams testified that the numbers
60 and 63 on the exhibit meant that the formula suggests that you mix by
amount 60 parts of urea to 63 parts nitric acid. The numbers 60 and 63 are the
molecular weights of urea and nitric acid and were noted underneath the
chemical equation. A 60 to 63 ratio by weight is theoretically the correct ratio
for the reaction, but only if both substances are in the same concentration. Here,
the manual prescribes that the nitric acid be diluted to 34%, which would
require a ratio of 60 parts urea to about 189 parts nitric acid (63 divided by .34)
if the urea was 100% pure, or some other ratio if the urea was less pure.

The second formula (G.Ex.2783T) is closer to, but is not exactly, what the FBI
followed. This formula indicates that 200 grams of urea should be dissolved in
water, and then 200 grams of diluted nitric acid should be put in. No mention is
made of reagent or technical grade products or distilled water. The manual's
translated discussion of how to dilute nitric acid is difficult to understand. In a
1997 interview Burmeister told us he construes the discussion to mean that the
nitric acid should be diluted to 35% purity. Thus, the weights and
concentrations of G.Ex.2783 differed from those in the formulas used by the
FBI, and, as explained in note 41, infra, it is unclear whether G.Ex. 2783 could
effectively produce urea nitrate. In any event, prior to the Salameh trial no one
in the FBI attempted to decipher the dilution procedure and actually dilute
nitric acid pursuant to it; nor did anyone in the FBI otherwise attempt to make
urea nitrate pursuant to this formula.

In his OIG interview Williams did not say that he or anyone else in the FBI
actually manufactured urea nitrate by literally following the formulas in the
manuals. Despite Williams' trial testimony that the early (pre-Eglin) batches
were made using the formulas in the manuals, he testified in the OIG interview
that he did not know what formulas were used in the only two pre-Eglin
batches he was aware of.

As for Eglin, Williams testified at the interview as follows: He did not see the
written formula Whitehurst and the other members of the team were following
and did not know whether it was the formula from the manuals. However,
based on Whitehurst's verbal instruction to the team, Williams thought that the
formula from the manuals appeared to be the formula that we were also using.
Williams further testified that on the first day of mixing at Eglin he received a
fax of one of the translated Arabic formulas; he showed it to Whitehurst and the
Eglin chemists and asked how it compared to what they were doing; and they
said it was the same.

Whitehurst, Burmeister, and the Eglin chemist at the scene of the mixing (Paul
Bolduc) told the OIG that they could not recall telling Williams that a formula
in the fax was the same as the formula the FBI was using at Eglin. Two bomb

technicians present at Eglin, however, recall the conversation. FBI Comments
at 10.

After Williams' OIG interview, we obtained a copy of the fax Williams
received at Eglin. The fax includes two Arabic formulas and their translations.
The first formula (First Fax Formula) is one of the two formulas Williams
testified in Salameh he used to make urea nitrate and became G.Ex. 2781. The
second formula in the fax (Second Fax Formula) is different from the two
Arabic formulas Williams testified he relied on to make the urea nitrate.

As noted above, the First Fax Formula (G.Ex. 2781) differs from the formula
used at Eglin in that the fax formula fails to prescribe that the urea should be
dissolved in water prior to the addition of the nitric acid and further states that
the nitric acid itself should be diluted to a 34% concentration. As indicated
above, at Eglin the urea was first dissolved in distilled water, and then reagent
grade (70.4%) or technical grade (67%) nitric acid was added. The fax formula,
moreover, is essentially a chemical equation with molecular weights. It does
not include a specific amount of 34% nitric acid to be added to a specific
amount of urea.

The Second Fax Formula is quite different from the Eglin formula. The Second
Fax Formula uses human or animal urine as an ingredient. The formula sets
forth a procedure for evaporating and filtering the urine; then 90% nitric acid is
added to the urine filtrate at a ratio by volume of one part acid to three parts
urine.

Thus, the fax formulas were different from the formula the FBI used to
manufacture urea nitrate at Eglin, and no one in the FBI at Eglin attempted to
manufacture urea nitrate from the fax formulas.

Because he was not a chemist, Williams lacked the expertise to determine on
his own whether a fax formula was the same as the formula Whitehurst was

following. When Williams testified at the OIG interview that the formulas
seemed to be the same because both used a 60 to 63 ratio by weight of urea to
nitric acid, it is clear he did not understand that the ratio of the weights must
take into account the concentrations of the ingredients. Because the
concentrations of the ingredients at Eglin were different from the
concentrations in the Arabic formula, the ratios of weights would have to be
different as well. Additionally, the formulas were different with respect to the
form of the urea (solid versus water solution) and the absence in the Arabic
formula of specific amounts (in pounds or liters) for the ingredients.

As we have noted, the Eglin and fax formulas utilized the same basic
ingredients but were different as to the weights, concentrations, and the form of
the urea. Nevertheless, Williams and the bomb technicians maintain that
Williams was told by a chemist that the Eglin formula and the Arabic formula
were the same. In his trial testimony Williams should have made the source of
his information clear. Instead of testifying that I made the urea nitrate at Eglin
and in the pre-Eglin batches pursuant to the Arabic formula, he should have
said that he had no personal knowledge of what formulas were used, that
comparing chemical formulas is a matter beyond his expertise, but that, when
Williams asked, a chemist told him that the Arabic and Eglin formulas were the
same.

We conclude that Williams' trial testimony that the formulas from the manuals
were the source from which the FBI manufactured urea nitrate was incorrect.
The source of the formulas used by the FBI was the Davis book. Moreover,
Williams told us that he did not know or did not have a clue as to what
formulas were used before Eglin and that he had no idea as to the source of the
Eglin formula. Williams' testimony concerning the use of the Arabic formulas
was seriously flawed.

b. Williams' Role

Williams also gave inaccurate testimony about his role in the FBI's
manufacture of urea nitrate. Regarding the batches before Eglin, he had no role

other than attempting to dry some of the product and was not even aware of all
the batches. Thus, his testimony that I made the early batches of urea nitrate
was apparently false. Williams responded at the OIG interview:

Well, in a lot of this testimony, when you see me saying, Yes, I
did, I'm the FBI Explosives Unit and laboratory representative; so
I'm using that term I as the laboratory. So when I say, Yes, I did,
that meant the laboratory.

Williams acknowledged that [p]erhaps they were a bad choice of words. We
are troubled by the choice of words. Williams' testimony that I performed some
Laboratory procedure implied that he was in a position to know something
about that procedure--when in fact he was not. Thus, instead of saying I made
the pre-Eglin batches of urea nitrate pursuant to the Arabic formulas, Williams
should have testified to the truth--that he was not involved in those batches and
did not know what formulas were used.

As for Eglin, Williams' testimony on direct that I made approximately 1300
pounds of urea nitrate in Florida, and his testimony on cross that he
supervis[ed] the mixing process, was inaccurate.
According to Williams' OIG interview, the decision to manufacture the large
quantity of urea nitrate in Florida, and the planning for the project, were jointly
undertaken by him and Whitehurst, but Whitehurst decided how to make the
explosive and what formula to use. Special Agent Burmeister stated in his OIG
interview:

It was a team effort. Everybody had their own function, but the
responsibilities were on certain individuals to do certain things.
The logistics on getting personnel out to the scene and buckets,
and stuff like that, that was in Dave's [Williams'] court.

The mixing and knowing how much to mix, that was in Fred
[Whitehurst] and myself, that was our responsibility, to mix and
prepare this stuff. And we were brought down there to prepare this
material, period. . . . [I]t was our [Whitehurst's and Burmeister's]
responsibility to control and organize the actual manufacturing of
this material . . . .

[Question by OIG:] Would you say that, in a sense, Dave
Williams was supervising the FBI people there [at Eglin]?

AGENT BURMEISTER: No. I don't think, I don't think he was
supervising. It wasn't that Dave would tell us -- would come over
and say, I think you're adding too much nitric acid. No, no, Dave
wasn't doing that.

If Dave was supervising, Dave was supervising the fact of telling
the guys from Eglin, you know, we're going to be here tomorrow
at 9:00, telling the bomb techs from the FBI office, I want you
guys to be down here at a certain hour.

That kind of logistics, yes, he was supervising that. But when it
came to the people mixing and preparing, he wasn't supervising
that activity.

OIG: . . . At any time did he [Williams] tell you or Fred how
much of a certain chemical to use?

AGENT BURMEISTER: No, never. . . . I know that because he
wasn't involved in the mixing process. Dave would not know how

much to add, if we didn't tell him how much to add. He could not
derive that just on the site.
In his OIG interview, Paul Bolduc, the Eglin Air Force Base chemist present
for the mixing operation, characterized Williams' role in the mixing process as
that of a gofer.

We find that Williams' role in the mixing operation was to provide manual
assistance under the direction of Whitehurst and Burmeister.

Accordingly, we conclude that Williams' trial testimony on direct examination
that I made the urea nitrate at Eglin, and his testimony on cross-examination
that he supervis[ed] the mixing process, was incorrect. The reference in his trial
testimony to the other FBI personnel at Eglin as my workers could be
interpreted to manifest an intent to downplay the role of the others and to
aggrandize his own. Williams' exaggeration of his role erroneously suggested
that Williams was an expert in the manufacture of urea nitrate, that he was in a
position to know how the FBI made its urea nitrate, and that therefore he could
say authoritatively that it was manufactured pursuant to the formulas in the blue
books. Williams' flawed testimony about the manufacture of urea nitrate was
the first of numerous errors he committed in the Salameh trial.

B. Williams' Opinions on Defendants' Capacity to
Manufacture Urea Nitrate and on the Explosive
Used in the Bombing

An important part of Williams' Salameh testimony consisted of his opinions
concerning (1) the capability of the defendants to manufacture urea nitrate and
(2) the main explosive ( main charge ) used in the World Trade Center
bombing. We conclude that Williams' testimony about these subjects was
deeply flawed.

As noted above, urea nitrate is made by combining urea with nitric acid.
Regarding the defendants' capacity to make urea nitrate, Williams subtracted
the amounts of urea and nitric acid recovered in the searches from the amounts
the defendants ordered from chemical companies. From the amounts of urea
and nitric acid missing, he calculated that the defendants could have produced
approximately 1200 pounds of urea nitrate.
Williams then rendered opinions concerning the main explosive used in the
World Trade Center bombing. On direct examination, based on the damage at
the scene, he opined that the main charge consisted of about 1200 pounds of a
category of explosives that included urea nitrate. On cross-examination, he
went further and rendered a specific opinion that the bulk of the main charge
was urea nitrate.

Taken together, the opinions concerning the defendants' capacity to make urea
nitrate, and the likelihood that urea nitrate was used in the bombing, were
incriminating in view of the uniqueness of the criminal use of urea nitrate.
Williams testified that his research revealed only one prior use of urea nitrate as
an improvised explosive charge--in a pipe bomb in 1988. If such an unusual
explosive was indeed used at the World Trade Center, the defendants' link to a
bomb factory and storage facility capable of making the precise amount of urea
nitrate allegedly used at the Trade Center would substantially contribute to the
proof of guilt.

Williams' opinions were important for another reason. Normally, the way a
crime laboratory determines the main charge of an exploded bomb is by finding
unconsumed particles or distinctive byproducts of the explosive among the
residue. The search for such particles is made by a forensic chemist. In the FBI
at the time of the World Trade Center case, the chemists specializing in the
examination of explosives residue were Whitehurst and Burmeister, who were
assigned to the MAU. One problem for the prosecution in the World Trade
Center case was that the MAU chemists did not find any residue identifying the
explosive. Thus, the normal way of scientifically determining the main charge
was unavailable. Williams' purported identification of the explosive filled that
void.

1. Defendants' Capacity to Make
1200 Pounds of Urea Nitrate

a. The Science

Williams calculated the amount of urea nitrate the defendants could have
produced from the amounts of urea and nitric acid that were missing--i.e., from
the amounts ordered minus the amounts recovered in searches of premises
associated with the defendants. To make such a calculation, the area of
chemistry known as stoichiometry must be applied. Stoichiometry concerns
molecular weight relationships in chemical reactions. In this instance, the
chemical reaction was: one molecule of urea plus one molecule of nitric acid
produces one molecule of urea nitrate. As previously noted, each of these
molecules has a different mass or weight. The molecular weight of urea is 60;
that of nitric acid is 63; and that of urea nitrate is 123. Thus theoretically (100%
yield), 60 grams of urea plus 63 grams of nitric acid produces 123 grams of
urea nitrate. For every 60 grams of urea, 63 grams of nitric acid is required.
(Similarly, for every 60 pounds of urea, 63 pounds of nitric acid is needed.)

Determining the potential amount of urea nitrate that could have been produced
requires a determination, first, of the limiting reagent because it is the chemical
that will run out first. For example, with only 63 grams of nitric acid, one could
only produce 123 grams of urea nitrate even with an unlimited amount of urea.
In this example, the nitric acid would be the limiting reagent.

Once the limiting reagent is determined, the potential amount of urea nitrate
can be determined with a simple calculation: If urea was the limiting reagent,
for every 60 grams (60 pounds) of urea that was missing, the perpetrators
potentially could have produced 123 grams (123 pounds) of urea nitrate. If
nitric acid was the limiting reagent, for every 63 grams (63 pounds) of nitric
acid that was missing, the perpetrators potentially could have produced 123
grams (123 pounds) of urea nitrate.

One additional factor must be taken into consideration: the purity of the
components. The calculations above assumed that the components were 100%
pure. If, for example, the urea was only 50% pure, you would need twice as
many grams (or pounds) of urea as indicated above: 120 grams (or 120 pounds)
would be needed for every 63 grams (63 pounds) of 100% pure nitric acid.
Similarly, if both components were less than 100% pure, appropriate
adjustments would have to be made.

b. Factual Background: Jourdan's Calculations

On March 7 or 8, 1993, Williams provided a list of the missing components to
a forensic chemist in the CTU (Thomas Jourdan) and asked him to calculate the
potential amount of urea nitrate that could have been produced. Jourdan made
the calculations and reported back to Williams, Agent Richard Hahn, and
possibly EU Chief J. Christopher Ronay. It appeared to Jourdan that they did
not understand his explanation of how nitric acid was the limiting reagent, so
Jourdan prepared a memorandum explaining his calculations and gave it to
Ronay and Williams and probably to Hahn.

Based on the figures Jourdan had, he determined that the nitric acid was the
limiting reagent, and determined that the upper limit was the production of
1821 pounds of urea nitrate. Jourdan used a 97% yield instead of 100% because
a staff member (this was James Molnar, see p.85, supra) had achieved such a
yield in the Laboratory. Jourdan also noted that [r]ecovered empty bottles of
HNO3 [nitric acid] indicated usage of about equal portions of 70.4% (reagent
grade) nitric acid and 67% (technical grade) nitric acid. He defined limiting
reagent as stoichiometrically you run out of it first, and stated that ordinarily,
urea is the limiting reagent to make sure the urea nitrate is not adulterated with
unreacted urea, which would inhibit the explosive's effectiveness.

At the time Williams testified at the Salameh trial, his figures regarding the
missing components were different (presumably updated) from the ones given
to Jourdan. At the time of the trial it was determined that 1200 pounds of urea
and 1694 pounds of nitric acid were missing. See G.Ex. 862. Using these

figures and Jourdan's basic methodology, a proper stoichiometric calculation
would be as follows: Jourdan assumed, as we will do here, that the
concentration of the urea was 100% and the average concentration of the nitric
acid was 68.7%. A quantity of 1694 pounds of 68.7% nitric acid is the
equivalent of 1164 (1694 x .687) pounds of 100% nitric acid. Since, as noted
above, 63 pounds of nitric acid is needed for every 60 pounds of urea, 1164
pounds of 100% nitric acid is inadequate to achieve a complete reaction of
1200 pounds of 100% urea. Accordingly, the nitric acid was the limiting
reagent.

For every 63 pounds of completely reacted nitric acid, 123 pounds of urea
nitrate is theoretically (100% yield) produced. Therefore, with a 100% yield,
1164 pounds of nitric acid would produce 2273 pounds of urea nitrate. A 97%
yield, as obtained by Molnar, would produce 2205 pounds of urea nitrate.

c. Williams' Salameh Testimony

In his testimony in the Salameh trial, Williams was asked to calculate how
much urea nitrate could be produced from the missing urea and nitric acid.
Williams first addressed the concept of a limiting reagent:

Whenever you have a reaction like this, there is a limiting reagent
when you mix two things together. You can only go so far
because one of the components limits the quantities that you're
going to have.

In the case of manufacturing urea nitrate, urea is the limiting
factor. So, you'd always want to add a little bit more nitric acid
than the recipe calls for to make sure that you've reacted all the
urea.

Next, Williams addressed the issue of yield. He testified that in a laboratory
type environment the [b]est case scenario would be in the neighborhood of 90
percent. He then testified:

Q. And if you're not working in a scientific laboratory, what effect
would that have on the yield?

A. It's drastically reduced. You're going to have a lot of spillage
because you're going to be cautious. It will splash out. You will
lose some of the mixture on the ground. You're going to lose some
because it's getting held up in your filter paper and that's a pretty
good amount. So, in reality, in a non-laboratory environment, I
would expect that and, as a matter of fact, you would get
somewhere around a 60- to 70-percent yield.

Williams then testified:

With 1,500 pounds ordered and delivered of urea to the storage
area, and finding 300 pounds left in that shed, mixing it with the
quantities of nitric acid, the urea and nitric acid would form
ideally about 90 percent of the gross weight.

So, if we have 1,200 pounds of urea used unaccounted for, if it
was used, we could make a mixture of somewhere around 2,100
pounds, give or take, on ideal conditions of urea nitrate. If the
urea nitrate was mixed in a less than ideal environment, not
laboratory techniques, and using something as simple as
newspaper for filter paper, I would expect that we would get in
the neighborhood of somewhere between 1,200 and 16, 1,800
pounds of urea nitrate and then depending on how it was
packaged, how sloppy the individual or individuals were that were
packing it, you might lose a few more pounds.

So, in essence, you could have an explosive charge of urea nitrate
perhaps between 1,200 and 16, 1,800 pounds.

Later in his testimony Williams referred to the amount of urea nitrate that could
have been made as about 1,200 pounds.

d. Analysis

We have reached several conclusions regarding Williams' testimony.

First, Williams lacked the requisite scientific knowledge to testify competently
in this area. When Jourdan initially discussed the calculation of potential urea
nitrate, Williams appeared to Jourdan not to understand the concept of a
limiting reagent. His testimony makes clear that he never learned the concept.
Urea is not always the limiting reagent and was apparently not the limiting
reagent here. Moreover, in his memorandum Jourdan explicitly defines limiting
reagent as stoichiometrically you run out of it first and finds nitric acid to be
the limiting reagent based on the information he was given. Accordingly,
Williams' testimony was inconsistent with the Jourdan memorandum.

Moreover, assuming that urea was the limiting reagent in this case, Williams'
numbers do not add up. Because, as earlier noted, 60 pounds of fully reacted
urea will produce 123 pounds of urea nitrate, 1200 pounds of urea will produce
a theoretical (100% yield) of 2460 pounds of urea nitrate. A 90% yield would
produce 2214 pounds (not 2100 pounds), and a 60% to 70% yield would
produce 1476 to 1722 pounds (not 1200 to 1800 pounds). The errors in
Williams' calculations conveniently produced a range that included the exact
amount of urea nitrate--1200 pounds--that he later testified was used in the
Trade Center bombing.

Second, Williams' discussion of laboratory yield was problematic. Williams
testified that in a laboratory type environment the [b]est case scenario would be
a yield in the neighborhood of 90 percent. In his OIG interview Williams said
he got the 90% figure from Whitehurst or Burmeister, although they do not
confirm this. Assuming they said it, we nevertheless question Williams' choice
of words, which implied that his testimony about laboratory yield was based on
his own expertise. A laboratory yield for a chemical reaction is obviously
outside Williams' area of expertise. He told us in his OIG interview that he had
no way of knowing, independent of the chemists, the accuracy of the 90%
number, but believed he could rely on the opinion of other experts in his
testimony. An expert may rely on opinions of other experts if this is the normal
practice in the field. See Fed. R. Evid. 703. Accordingly, Williams would have
been fully justified, in rendering his own opinions, in relying on the chemist's
statement about yield. For example, he could have testified, My opinion is
based in part on the statement of Chemist W, who told me 90% is the best
yield. But if he had so testified (with an attribution for the yield statement), the
court would have known on whose expertise the 90% number rested. But that is
not what Williams did. He did not attribute the 90% number to anyone else, but
rather continued to give the impression that he was speaking from his own
expertise, which was misleading.

The failure to attribute the 90% figure was particularly inappropriate here
because at this point in Williams' testimony he was apparently testifying about
the manufacture of urea nitrate based on his personal experience in making it.
Because the 90% figure was not based on that experience, Williams should
have revealed the source of the yield number.

Third, Williams' trial testimony about non-laboratory yield was unscientific and
speculative, was based on improper grounds, and appears tailored to correspond
with his estimate of the amount of explosive used in the bombing. Williams
testified that in reality, in a non-laboratory environment, I would expect that
and, as a matter of fact, you would get somewhere around a 60- to 70-percent
yield.

When asked in his OIG interview the basis for this testimony, he explained that
it was based on three factors. The first factor was the yield at Eglin. He said the
yield there was 1158 pounds of urea nitrate from 1600 pounds, or 1500 pounds,
give or take, of ingredients (urea and nitric acid). A yield of 1158 pounds from
1600 pounds would be 72%; a yield from 1500 pounds would be 77%.
Williams described the Eglin operation as a pseudo-laboratory environment.

The second factor was Williams' observations during the searches of the
defendants' alleged bomb factory and storage facility. During these searches he
observed evidence of a lot of spillage of urea nitrate, which was more than at
Eglin.

When asked whether the evidence of spillage suggested a yield much lower
than 60-70%, Williams identified the third factor he considered to determine
non-laboratory yield :

Along with the investigation that I had results from, from the
purchase of chemicals, the known purchase of chemicals, there
was a quantity that was purchased, we found no other places
where they had purchased urea or nitric acid. But we did find
where they did purchase a quantity. We have knowledge of a
quantity of chemicals they had purchased. And I had knowledge
of how much chemical was left in the Space Station Storage [the
defendants' alleged storage facility] unused.
I also used that to base on what potential percentage of yield was.

We are deeply troubled by Williams' rationale. The first factor used--the yield
at Eglin--is problematic. To use Williams' words, Eglin was a pseudolaboratory environment, in which chemists did the mixing. It is impossible to
say whether the typical non-laboratory environment --if there is one--would be
better or worse than Eglin. Assuming it would be worse because of an absence
of chemists, one could only speculate about how much worse. Further,

improvised (i.e., homemade ) explosives are sometimes produced by chemists;
so an assumption that non-chemists made the explosive would be invalid.

The second factor was also inappropriate. Williams' trial testimony about a
non-laboratory yield was offered as an expert opinion based on his experience
making urea nitrate. He was asked what the yield typically would be in a nonlaboratory setting. By basing that opinion on residues found at the defendants'
storage facility and bomb factory, Williams really offered an opinion on the
yield he thought the defendants would have had, but masked it in the guise of a
general opinion. Moreover, it is pure speculation to say what the defendants'
yield would have been from the discovery of some urea nitrate crystals
evidencing spillage.

The third factor, however, is the most problematic. There is a degree of
ambiguity as to what exactly Williams meant. In essence, he said he based his
testimony about non-laboratory yield in part on the amount of chemicals
missing (amounts purchased minus amounts recovered at the storage facility).
Our interpretation of the passage is this: Williams apparently assumed the
Trade Center bomb was made from the chemicals missing from defendants'
storage facility. He estimated, as he later testified, that the main charge at the
Trade Center weighed 1200 pounds. He then divided 1200 by the weight of the
applicable amount of missing urea and nitric acid to give him an estimate of
defendants' yield. He then considered defendants' yield to help him determine
non-laboratory yield generally.

Based on the amount of urea and nitric acid missing from the defendants'
facility, they had the capacity to produce urea nitrate in an amount in excess of
2000 pounds if the yield was high (over 90%) and in an amount less than 1200
pounds if the yield was low (below 50%). Williams testified at trial that the
amount of the explosive used in the Trade Center bombing was about 1200
pounds. If the defendants' yield was substantially below 90% but not below
50%, a good match could be obtained between the amount the defendants could
have produced and the amount supposedly used in the bombing. By setting the
non-laboratory yield at 60 to 70 percent, Williams obtained a good match.

The purpose of a criminal trial, of course, is to determine guilt. The issue of
guilt is the ultimate question to which all others are directed. In contrast,
Williams began with a presumption of guilt as a foundation on which to build
inferences. (As we shall see below, this is not the only time in the Salameh trial
that Williams so utilized a presumption of guilt.) The agent simply assumed
that the perpetrators produced a 1200 pound bomb at the Trade Center using
the urea and nitric acid missing from the defendants' facility, and that yield (the
amount used at the bombing divided by the amount missing) informed his
testimony about non-laboratory yield, which was presented to the jury as a
general number applicable to all non-laboratory environments.

It appears Williams may have worked backwards --that is, he may have first
determined the result he wanted (here, that the defendants could have produced
1200 pounds of urea nitrate, the amount he estimated was used in the bombing)
and then tailored his testimony about yield to reach that result. We are deeply
troubled by this possibility.

We conclude that a competent expert cannot give a narrow range for the yield
in a non-laboratory environment. A commercial production facility or a
meticulous chemist in a garage can potentially achieve a yield as high as that
produced in a laboratory. On the other extreme, careless persons without
knowledge or skill may be unable to produce the explosive at all (0% yield) or
may achieve only a very low yield. Accordingly, we find that Williams'
testimony about non-laboratory yield was invalid and beyond his area of
expertise.

Fourth, had Williams or another witness performed the stoichiometric
calculation correctly, the result--a 100% yield of about 2273 pounds of urea
nitrate with a real possibility of a much lower figure in a non-laboratory
setting--would have been perfectly acceptable to the prosecution's theory of the
case. Williams seemed to have pushed the envelope to get to 1200 pounds--his
estimate of the weight of the explosive used in the bombing. Such exacting
symmetry was unnecessary.

In sum, we conclude that Williams' testimony about the potential production of
urea nitrate was outside his area of expertise and deeply flawed, and his
excesses were unnecessary to an effective presentation of the prosecution's
case.

2. Williams' Opinion Regarding the
Explosive Used in the Trade Center
Bombing

Having established the defendants' capacity to manufacture 1200 pounds of
urea nitrate, Williams went on to render an opinion in the Salameh trial that the
main explosive charge in the Trade Center bombing was 1200 pounds of urea
nitrate. This testimony was also seriously flawed.

a. Velocity of Detonation

An important part of Williams' opinion concerning the explosive used at the
Trade Center was his determination of the velocity of detonation (VOD) of that
explosive based on his assessment of the damage at the scene. Attachment C: A
Primer on Explosives and Velocity of Detonation, infra, defines VOD and is a
necessary foundation for the discussion that follows. The significance of the
VOD determination was that it provided a basis for Williams' opinion
concerning the type of explosive used in the bombing.

(1) The VOD of Urea Nitrate

(a) Background

Williams testified at the Salameh trial to the VOD of urea nitrate:

Urea nitrate in smaller quantities detonates at a velocity of about
14,000 feet per second. The larger quantity that you get of urea
nitrate it compacts on top of itself and may approach 15,500 feet
per second.

When asked at his OIG interview the basis for these figures, Williams stated
that they were a rough estimate from information I had obtained from different
sources. The information was allegedly received orally from persons Williams
regarded as knowledgeable sources within the field of explosives. These
sources told him, [I]t's approximate. These fellows had not worked with it. And
wherever they got the information from, this is what I had received from them.
Williams told us there was very little literature on the subject. He continued:

And the actual written material that I found was -- it was a very
broad definition. It didn't seem that two people agreed on the
same thing. . . .

[Question by OIG:] That literature indicated that it was unclear as
to what the velocity of detonation was?

AGENT WILLIAMS: Not unclear. There was just such a wide
parameter of detonations and pressure. Very little research had
been done and written about that I was able to locate.

OIG: And it was wider than 14,000 to 15,500 feet per second; is
that correct?

AGENT WILLIAMS: I don't recall.

OIG: You don't recall that -- I mean, the literature did not reflect
14,000 to 15,500 feet per second; is that right?

AGENT WILLIAMS: I don't recall. . . . I do recall seeing these
figures visually. . . . And I don't recall if it was after I prepared it
from the verbal information or if it's information that I received by
looking at some type of research document.

After the OIG interview we obtained Williams' notes for the World Trade
Center case. There is nothing in the notes indicating that the VOD of urea
nitrate is 14,000-15,500 feet per second.

The notes, however, do contain two copies of page U103 of the Encyclopedia
of Explosives and Related Items (U.S. Armament Research and Development
Command 1983) ( Encyclopedia ), a standard text in the field. Page U103
contains the following:

urea nitrate has a deflagration pt of 186 [degrees]; a deton rate of
3400m/sec (at d 0.85g/cc in a 30mm diam paper tube when driven
by 1.5g of MF), and 4700m/sec (at d 1.20g/cc in a 30mm diam
steel tube when driven by 1.5g of MF)

(Abbreviations in original.) A VOD of 3400-4700 meters per second converts
to about 11,155 to 15,420 feet per second. In the OIG interview, Williams
stated that he reviewed the Encyclopedia regarding the VOD of urea nitrate
before he testified in Salameh.

Also among the case notes is a notation of 12-15,500 FPS, without further
elaboration, on a sheet from Williams' notepad. In a letter in August 1996
Williams commented on this notation:

I do not specifically recall why I had written down 12-15,500, nor
where I had found it. I did in fact write it and it suggests to me
that either I or someone to whom I had conversation with had
rounded off the possible VOD of what most likely would have
been urea nitrate.

In his OIG interview and correspondence, Williams named only three
knowledgeable sources within the field of explosives who he allegedly
consulted prior to his testimony--Tom Dowling and Fred Smith of the Institute
of Makers of Explosives and Paul Cooper of Sandia National Laboratories. In
his OIG interview Dowling stated that he did not recall talking to Williams or
talking to anyone from the FBI about the VOD of urea nitrate after the Trade
Center blast, but said he was reasonably sure he talked to FBI employees on the
telephone about other aspects of urea nitrate. Dowling said that if he had been
asked about the VOD of urea nitrate, he would have consulted his reference
material and given the caller the information he had. Dowling had only one
reference book that contained the VOD of urea nitrate--the Encyclopedia.
Smith stated in his OIG interview that he did not recall that anyone ever asked
him about the VOD of urea nitrate, that he would not have known the VOD,
and that to answer the inquiry he would have consulted the Encyclopedia.
Cooper stated in his OIG interview that he was pretty sure no one from the FBI
called him to ask about the VOD of urea nitrate and that if someone had called
he would have had to perform research or calculations to determine the VOD.

In addition to the Encyclopedia, our own literature search found only one text
setting forth the VOD of urea nitrate (Urbanski, Chemistry and Technology of
Explosives 469-70 (1965)), and it contained the same VOD as the
Encyclopedia--3400 to 4700 meters per second.

Williams testified at his OIG interview that after the Salameh trial (and before
the Rahman trial) [w]e detonated the explosives [the urea nitrate] we made at
Eglin and measured the VOD to be 12,100 feet per second. Williams
characterized this measured VOD as substantially less than 14,000.

(b) Analysis

Williams' Salameh testimony about the VOD of urea nitrate was, at best,
incomplete and, at worst, knowingly incorrect. The Encyclopedia, a standard
text in the field of explosives, indicated that urea nitrate has a VOD of about
11,155 to 15,420 feet per second. Although the applicable page of this text was
in Williams' notes and although prior to his testimony he had consulted it, he
nevertheless testified, without qualification, that the VOD is 14,000-15,500 feet
per second.

Williams claimed in his OIG interview that he based his testimony about the
14,000-15,500 feet per second VOD of urea nitrate on oral statements from
persons outside the FBI. The interviews of Dowling, Smith, and Cooper, and
the absence of supporting documentation in the case notes, leave us with grave
doubts about the veracity of this claim. In any event, these oral opinions
allegedly came from persons who had not worked with urea nitrate, and
Williams did not know the basis of their opinions. Assuming Williams received
such opinions, we conclude that it was inappropriate for him to blindly rely on
them and ignore the Encyclopedia. At a minimum, Williams should have told
the court he was relying on outside opinions, and he should have supplemented
those opinions in court with the information from the Encyclopedia.

Finally, in his August 1996 letter, Williams came up with a completely new
reason for his testimony about the VOD of urea nitrate:

One or more of the individuals from Eglin, at the time of our
manufacturing of urea nitrate at Eglin, had conducted tests to

determine the density of urea nitrate as it was manufactured. If
you notice, in the highlighted area from the Encyclopedia of
Explosives[] the density for the different VOD tests are 0.85g/cc
and 1.20g/cc. This allows for the extreme variance of VODs as
listed in the Encyclopedia. The resulting examination indicated
that the density of the urea nitrate that was manufactured in Eglin
was near the upper end of that density. I do not specifically recall
what those figures were, however, in my conversations with the
Eglin folks, they agreed that due to the higher density, not tamped
or packed tightly, the VOD would be higher or faster than the low
end scale. It was also my opinion at the time of testimony in the
trial, that the urea nitrate manufactured for the bombing was
homemade, allowed to rest for a period of time and then
transported while packaged in the Ryder truck, from New Jersey
to New York City. The density of the urea nitrate in this device, in
my opinion, was higher thus suggesting that the VOD was faster
than the lower end of the 11,155 estimate.

This new explanation for Williams' trial testimony is not helpful to Williams'
position. First, we do not find it credible. It is inconsistent with both his trial
and OIG testimony, and we think that if this were the real reason for his trial
testimony he would have mentioned it at the OIG interview. At the OIG
interview Williams mentioned the Encyclopedia but limited his remarks to: I
know I definitely looked at the Encyclopedia of Explosives, and I don't recall
specifically what it had said at that point. The August 1996 explanation came
after we confronted Williams with page U103 from the Encyclopedia, and the
new explanation appears contrived to accommodate that text. Second,
Williams' trial testimony did not purport to be an estimate of the VOD of the
urea nitrate made either at Eglin or by the perpetrators. Rather, it was put forth
as the general range for the VOD of urea nitrate. The 14,000 feet per second
figure was explicitly limited at the trial to smaller quantities, which would be
inapplicable to both Eglin and the perpetrators. Third, density was not the only
variable mentioned in the Encyclopedia; the confinement also varied (paper
versus steel tube) and may have had as significant an impact on VOD as the
density. Thus, Williams' new explanation is based on a misconstruction of the
Encyclopedia. Fourth, Williams' statement in the new explanation that he
thought the urea nitrate used in the bombing had a high density is speculative.
If, as seems unlikely, the new explanation is the true explanation, Williams
should have given the same information in court as he did in his letter--namely,

that the VOD for urea nitrate is about 11,155-15,420 feet per second, but that
he thought the VOD of the main explosive was at the high end of that range for
certain specific reasons. The new explanation reflects adversely on Williams'
credibility and competence.
We conclude that the 14,000-15,500 VOD range for urea nitrate that Williams
gave at the Salameh trial was clearly too narrow, and appears tailored to
correspond to the estimates in his report (14,000 feet per second) and in his
testimony (14,000-15,500 feet per second) of the VOD of the main explosive
used at the Trade Center. In his trial testimony about the VOD of urea nitrate,
Williams failed in his responsibility to provide the court with complete and
accurate information.

(2) The
VOD of the
Main
Explosive

Having told the jury that the VOD of urea nitrate was about 14,000 to 15,500
feet per second, Williams went on to testify as follows to the VOD of the main
explosive at the Trade Center:

On the brief two and a half hour walk-through [at the scene of the
bombing] I had the opportunity to inspect a lot of [damaged
materials]. . . . By putting all of these things together and looking
at the size of the hole I estimated that the velocity of detonation
was somewhere between 14,000 and about 15,500 feet per second,
with a little bit of give on each side of that.[]

We conclude that Williams' VOD opinion lacked a sufficient scientific and
empirical foundation.

(a) Inconsistencies

At the outset we note that Williams has been inconsistent as to his estimate of
the VOD of the main charge at the World Trade Center. In his report dated July
1, 1993, he stated that the explosive main charge was a high explosive having a
velocity of detonation (VOD) of approximately 14,000 feet per second. In his
Salameh testimony in February 1994, he gave a VOD of somewhere between
14,000 and about 15,500 feet per second, with a little bit of give on each side of
that. Later, in the Rahman trial in April 1995, Williams testified:

From this walk-around [at the scene of the bombing] I was able to
look at the damage and conclude that I was looking at the damage
from a[n] explosive that had a velocity of detonation around
14,000 feet per second.

Obviously, without being in there when the bomb went off or
seeing what kind of explosive it was, I have to give a bracket on
both sides of a couple thousand feet.

In his OIG interviews in February and March 1996 he also stated that his VOD
estimate included a 2000 feet per second tolerance on either side of the 14,000feet-per-second estimate--i.e., a range of 12,000 to 16,000 feet per second.
Finally, in a letter to the OIG in August 1996, Williams stated: The other
reason that I testified as to the VOD damage in the Trade Center, is that from
the damage I witnessed, it appeared to me that the improvised explosive device
was faster tha[n] 11,000 and slower than 16,000.

Thus, Williams has given four estimates of the VOD for the main charge:
approximately 14,000 feet per second (his report), 14,000 to about 15,500 feet
per second with a little give on each side of that (Salameh trial), around 14,000
feet per second with a bracket on both sides of a couple thousand feet (Rahman

trial, OIG interviews), and between 11,000 and 16,000 feet per second (letter to
the OIG).

We observe that Williams' adjustment from 14,000 (report) to 14,000-15,500
feet per second (Salameh trial) coincided with his Salameh testimony that the
VOD of urea nitrate was 14,000-15,500 feet per second. His change from
14,000-15,500 (Salameh trial) to 12,000-16,000 feet per second (Rahman trial)
occurred after Williams discovered that the VOD of the urea nitrate made at
Eglin was 12,100 feet per second. His change to 11,000-16,000 feet per second
(August 1996 letter) occurred after we pointed out to him that the Encyclopedia
gave the VOD range of urea nitrate as about 11,155 to 15,420 feet per second.
The circumstances of the four estimates imply that Williams changed his VOD
opinion for the main charge in order to maintain a match with the VOD of urea
nitrate.

We conclude that Williams' inconsistencies severely undercut the credibility of
his VOD opinion for the main charge.

(b) Justification for Opinion

(I) World Trade Center

Williams testified in the Salameh trial that he considered several observations
to determine the VOD of the Trade Center bomb:

On the brief two and a half hour walk-through I had the
opportunity to inspect a lot of witness vehicles[], concrete, steelreinforcing rod, steel beams, and other fragments of material in
and around the seat of the explosion.

By looking at some of the pieces of steel, for example, that very
large piece of steel that was thrown back into the tower room, and
where it broke off, recognizing that that part was actually about 12
feet or so away from the seat of the blast, the specific unique
breaking of the steel particle and different distances away from
the seat of the explosion, I witnessed different types of explosive
damage.

By putting all of these things together and looking at the size of
the hole I estimated that the velocity of detonation was
somewhere between 14,000 and about 15,500 feet per second,
with a little bit of give on each side of that.

....

For example, if we had C4 [a military ordnance] in that World
Trade Center basement, a quantity of it, of course the quantity
doesn't matter, over a hundred pounds, because the velocity of
detonation of the C4 is somewhere around 24,000 feet per second,
give or take, that explosive is very brisan[t], brisance meaning that
that shock wave comes out real quick. When that shock -- and it
doesn't last as long as a slower velocity explosive. So when that
brisance hit the target material like steel -- if you recall in the one
photograph where it looked like that steel was torn -- we would
see a lot more of that tearing, really tremendous tearing damage in
some of the heavier materials like the steel.

If, for example, we go to a slower velocity explosive, let's say
something around 14,000 feet per second, when that detonates
we're going to get more of a pushing, a heaving effect. It's not
going to crack it hard. It's going to gradually build up, but still
very rapidly take hold of that witness material and give it a push
or a shove, and it's not going to crack that material as rapidly.

Q. Is that in fact the type of explosive damage that you saw?

A. The pushing and heaving is exactly what I saw in the World
Trade Center.

The problem with this testimony is that Williams never explains how the
observations compute to 14,000-15,500 feet per second. That he observed
evidence of heaving as opposed to brisance --i.e., the damaged materials
appeared to have been pushed rather than shattered --only necessarily excludes
military explosives such as C4 with VODs in excess of 18,000 feet per second.
Nowhere in his testimony does Williams explain how he narrowed the broad
heaving range of high explosives (about 3000 to 18,000 feet per second) to
14,000-15,500 feet per second.

In his OIG testimony Williams elaborated further on his rationale. He stated he
considered the damage to the component parts of the suspect vehicle and other
witness materials around there, the concrete, the steel, the vehicles, the people.
He stated that because he found pitting and cratering within four feet, and
evidence of heaving and no tearing within eight and a half feet, of the seat of
the explosion, [t]hat put me into an area of somewhere between 12,000 and
16,000 feet per second . . . I didn't find any pitting or cratering eight feet away;
but four feet away, I did. He continued:

So by looking at all of these different things, the way the concrete
was broken into large pieces as compared to limestone dust within
the near proximity as you gradually went away from it, looking at
autopsy reports and photographs of victims, by the burning on
their bodies or the scorching of the surrounding area, I can
roughly get a feel that it was a very hot explosive or a not so hot
explosive, a lot of fire ball balls produced, that sort of thing. . . .

By putting all of this together and looking at what I saw in the
Trade Center, I was able to say that the velocity of detonation of
the explosive main charge was about 14,000 feet per second.

Williams stated he considered a host of other things, including [t]he bodies, the
burning. He elaborated:

OIG: Okay. So getting back to your testimony of between 14,000
and 15,500 feet per second, what you viewed on the body, how
did that help you determine that the velocity of detonation was
between 14,000 and 15,500 feet per second?

That's my question, sir.

AGENT WILLIAMS: Okay. And I cannot answer that a single
body could tell me the velocity of detonation. The body along
with all of the other environment that I looked at.

OIG: What was it about the body that helped you to get to the
conclusion that it was between 14,000 and 15,500 feet per
second?

AGENT WILLIAMS: That allowed me to say, well, by looking at
one individual body -- they were eating lunch at the time. He had
food in his mouth that was still partially chewed.

Another body had fragmentation damage in the eyeball and not in
the eyelid, suggesting he didn't have time to blink by the time he
got hit with fragmentation.

I looked at a body that had a mangled arm that was caused by
some surrounding area, part of the wall, a cinder block, perhaps,
that had ripped the arm off.

OIG: And that couldn't have been done at 18,000 feet per second,
you're saying?

AGENT WILLIAMS: Absolutely not.

OIG: And it couldn't --

AGENT WILLIAMS: Not the damage that I saw.

OIG: The damage to the body?

AGENT WILLIAMS: That's correct. I would have expected --

OIG: And you say that based on what, sir?

AGENT WILLIAMS: I know where the bodies were found. I
know the damage to the body. I know the debris that was found all
around the body. I know where that debris originated before the
blast.

Concrete blocks for a cinder block wall, something of that nature;
an unopened box of photocopy paper; these items were removed
from their original position less than 10 feet away from the seat of
the blast and thrown to an area where they finally rested near the
body.

The damage to those objects suggested to me that if it was 18,000
feet per second, they would be smaller, they would be torn or
ripped like the pipe that's shredded like paper, and the bodies
would have had slightly different damage.

OIG: What kind of damage?
AGENT WILLIAMS: They would have been hit with smaller
flying objects.

OIG: Would the arm have been ripped off in a different way?

AGENT WILLIAMS: Yes. Their bodies would have shown
different physical damage.

If, for example, I had two bombs, one was smokeless powder, and
one was C-4; and I had individuals the same distance away, I
would expect totally different damage to those bodies.

OIG: Okay. And where did you learn all this from? I mean, is
there some literature out there, sir, that tells --

AGENT WILLIAMS: There's a good bit of literature.

OIG: Okay. And that literature would support your statement
about the damage to the bodies?

AGENT WILLIAMS: Yes, it would.

OIG: I see. Is there literature out there that supports your ability to
estimate a velocity of detonation of between 14,000, 15,500 feet
per second based on the explosive damage? Is there literature that
indicates that a qualified expert can do that?

AGENT WILLIAMS: I don't know.

The thrust of Williams' OIG testimony is that he considered numerous factors
bearing on VOD, which he then filtered through his experience to produce his
VOD estimate. We find Williams' application of his methodology flawed,
because it is essentially an unscientific, unverifiable process of intuition. This is
apparent from some of the language Williams used to describe his method of
determining the VOD and weight of the explosive: I can roughly get a feel that
it was a very hot explosive or not (emphasis added); [w]hat caused me to guess
a velocity of detonation (emphasis added); [t]hese things produced an
impression on me (emphasis added).
The application of the methodology is one of rough[] . . . feel[ings], guess[es],
and impression[s]. There was a complete absence of empirical data to support
any of the inferences Williams made from the various factors he identified. For
example, Williams emphasized that the pitting and cratering within a radius of
4 feet from the seat of the explosion, when combined with only heaving
without pitting and cratering within 8.5 feet, showed a velocity of detonation of
12,000-16,000 feet per second. But neither Williams nor the FBI has data to
support that thesis. Moreover, in the Oklahoma City case (see Part Three,
Section G, infra) Williams found pitting and cratering 12 feet from the seat but
nevertheless estimated the VOD to be 13,000 feet per second in that case,

effectively undercutting the primary basis he claimed for his VOD opinion in
the World Trade Center case.

The same could be said for the conclusions he drew from observing certain
victims' bodies--e.g., the way in which an arm was severed, an eye injury.
Williams and the FBI have no data or other basis for concluding that the nature
of those injuries meant the VOD was 14,000-15,500 feet per second.

(ii) Oklahoma City

Williams' attempt to justify a specific VOD estimate in the Oklahoma City case
is similarly unpersuasive and supports our view of the inappropriateness of
attempting to fix a narrow VOD range from an assessment of the blast damage.
In his Oklahoma City report, Williams estimated the VOD of the main charge
to be 13,000 feet per second. Williams explained in his OIG interview that he
reached his VOD opinion by considering the explosive damage at the crime
scene in light of his experience. He cited approximately fifteen different factors
that contributed to his opinion--such as, the damage to the vehicle containing
the bomb, the size of the crater, the lip of the crater, evidence of heaving, the
damage to the concrete, the size of the vehicle fragments, pitting and cratering,
the movement of parked cars, and the damage to parking signs. As in the World
Trade Center case, however, the difficulty arose when Williams attempted to
explain how he got from the observed damage to the specific VOD. For
example, he contended that the size of the fragments contributed to his opinion.
But neither Williams nor the FBI can cite any empirical studies linking specific
sized fragments to specific VODs. Williams stated in his Oklahoma City
interview that he had no documentation or experimentation to support his
premises regarding the various factors and that he relied solely on his memory
of explosive experiences spanning 10 to 15 years. We conclude that this is an
inadequate basis for rendering a specific VOD opinion from observations of
blast damage.

(iii) General Discussion

Agent Thurman, the current EU Unit Chief, stated in his OIG interview that
normally an EU examiner will only determine from the damage whether the
explosive was high or low, heaving or brisant. With the exception of
differentiating between a high explosive and a low explosive, the arbitrary, we
do not, as a rule, go in the reports and state that it's X' number of feet per
second. Indeed, Thurman, who has been in the EU for about 14 years, has never
himself opined a specific VOD from a damage assessment, but has limited
himself to opinions about high versus low, brisant versus heaving, explosives.
In fact, Williams is the only examiner Thurman is aware of who has attempted
to find a specific VOD from a damage assessment, and attempting to make
such findings is not part of the EU training. Williams also believes he is the
only EU examiner to have rendered a specific VOD opinion from the explosive
damage. Furthermore, as noted above, Williams is unaware of any literature
stating that an explosives expert properly may render such a VOD opinion. We
also are unaware of any such literature. It thus appears that Williams may be
unique, both within the FBI and within the community of explosives experts
generally, in his willingness to render such specific VOD opinions.

We have no doubt that an experienced explosives examiner may properly draw
certain inferences from observations at a crime scene. For example, an
experienced expert will be able to discern the difference between the damage
left by a high versus a low explosive, and can differentiate the damage caused
by a heaving high explosive (like most commercial products) versus a brisant
(like most military explosives) high explosive. Similarly, an observation of
pitting and cratering will tell an experienced expert that the explosive used was
a high explosive with a VOD typically in excess of about 10,000 feet per
second. All of this involves the use of experience to recognize certain
distinctive characteristics of explosive damage.

Going further, however, and attempting to infer from the damage a specific
VOD is a process that appears to have no precedent either in the literature or at
the FBI. We believe it is unprecedented and unjustifiable because the
differences in damage caused by explosives with different specific VODs are
insufficiently distinctive to allow an experienced expert to say that certain
damage will only result from an explosive with a particular VOD.

No database exists at the FBI that correlates specific VODs with particular
damage or with the many other variables identified by Williams. We conclude
that Williams in fact has no objective basis for estimating a specific VOD from
an inspection of the crime scene.
Accordingly, we conclude that Williams' specific VOD opinion of 14,00015,500 feet per second for the main charge at the World Trade Center lacked an
adequate scientific and empirical basis.

b. Identification of the Main Charge

Having testified that the VOD of the Trade Center explosive was 14,000 to
15,500 feet per second, Williams went on to testify about the type of explosives
that fit that range. We will first summarize that testimony and then analyze it.

(1) Williams' Testimony

On direct examination, Williams testified as follows:

Q. Based on the damage and your estimated velocity of
detonation, did you form a conclusion as to what type of explosive
was used?

A. Yes. Immediately because of that type of damage without
doing any type or having any knowledge of chemical residue
analysis, the type of explosives that fit in that bracket are very
limited. . . .

So within that parameter of 14,000 to 15,500 feet per second we're
limited to the fertilizer-based explosive such as ammonium
nitrate, and also, certain dynamites, the ammonium-nitrate type
dynamites. Perhaps on one end of the spectrum or the other end of
the spectrum we may find something like water gels, a slurry or
an emulsion. Each of these kind of explosives are commercially
available and do specific damage, but their velocity of detonation
are just a tad on either side of that parameter of detonation.

Williams further testified that he was able to rule out quite a bit of the slurries,
water gels and emulsions because of the failure to find microballoons or tipper
ties among the debris at the scene. Williams testified that microballoons are
tiny glass balloons that are included in some emulsions to add air space, and
tipper ties are the wire ends of water gels. He testified that he would have
expected to find microballoons if the explosive at the Trade Center had been an
emulsion and find tipper ties if it had been a water gel. He then concluded by
identifying urea nitrate as within the category of a fertilizer-based explosive
that would have that velocity of detonation consistent with the damage that [he]
saw.

On cross-examination, one of the defense counsel (Mr. Campriello) attempted
to recapitulate Williams' earlier testimony but misstated it, leading to the
following:

Q. . . . In other words, you said that this was basically a bomb, if I
understand, made of urea nitrate and this substance and that
substance.

MR. ABDELLAH [another defense counsel]: Objection. That's
not what he said.

THE COURT: I think he's -- I don't think you're limiting yourself.
Is that what you're saying? You think?

MR. CAMPRIELLO: That's all I'm saying.

THE COURT: Go ahead.

A. Yes I do. I believe urea nitrate was the bulk of the constituent
in that bomb with other explosive materials; yes.

Q. And have you concluded that that is the only possible bomb
that could have caused this kind of damage based on everything
you know or are there other possibilities as well?
A. Within the World Trade Center?

Q. Yes.

A. There was only one bomb in the World Trade Center.

Q. No, no. That, I understand to be your testimony.

What I'm saying is was whatever caused it just this one possibility
or were there other possible bombs as well, not two bombs or
three bombs, but you described a bomb?

A. Yes, okay.

Q. Could it have been another kind of bomb or no?

A. Not likely. As I said, the bulk of the explosive material could
have been urea nitrate with other things such as ammonium nitrate
dynamite and certainly there was some type of initiator, but the
bulk of the explosive was, in my opinion, urea nitrate.

Q. I guess it's the could have been part that gives me pause.

THE COURT: Could it be ANFO [ammonium nitrate and fuel
oil]?

MR. CAMPRIELLO: I didn't hear you, Judge.

THE COURT: Could it be ANFO?

THE WITNESS: Yes, it could be.

THE COURT: In other words, there could have been an ANFO
bomb sitting there, and if that exploded, it would have caused the
same kind of damage?

THE WITNESS: That's correct.

(2) Analysis

(a) Direct Examination

First, Williams testified on direct examination that because of that type of
damage . . . the type of explosives that fit in that bracket are very limited.
Assuming the VOD testified to at the Salameh trial--14,000-15,500 feet per
second--there are many different explosives that fit in that bracket. Using the
VOD testified to in the Rahman trial--12,000-16,000 feet per second--there are
even more that qualify. Williams testified in his OIG interview that a lot of
different explosives meet the 14,000-15,500 feet per second VOD range. For
example, the 1980 Dupont Blasters' Handbook ( Dupont ) lists six prill
products, four water gels, and two dynamites with a VOD within the 14,00015,500 feet per second range, and more within the 12,000-16,000 feet per
second range. The 1968 Canadian Industries Limited Blasters' Handbook lists
three products with velocities in the 14,000-15,500 feet per second range. The
1995 Dyno Nobel Inc. Explosives Engineers Guide ( Dyno ) lists twenty-seven
products with velocities in the 14,000-15,500 range.

Williams' testimony about the very limited type of explosives that fit in the
14,000-15,500 feet per second bracket was literally correct, because the many
commercial products within that range fall into certain categories or types-namely, dynamites, water gels, emulsions, and fertilizer (e.g., ANFO) products.
We are concerned, however, that the court may not have understood that within
each type there are numerous commercial products meeting the 14,000-15,500
feet per second range.

Second, Williams testified that the VOD of water gels and emulsions are just a
tad on either side of that parameter of detonation [14,000-15,500 feet per
second]. This testimony was incorrect. There are several commercially
available water gels and emulsions with VODs within the 14,000-15,500 feet
per second bracket. See Dupont at 71; Dyno at 1-2.

Third, Williams testified at trial that he could rule out some of the explosives
that met the range--namely, the emulsions and the water gels because of a
failure to find microballoons and tipper ties in the debris. Williams contradicted
this testimony at his OIG interview.

As for the microballoons, if used they may have been made of resin and likely
consumed in the blast. More fundamentally, however, any microballoons used
would have constituted only about five percent of the total explosive mixture.
No residue of the main explosive was recovered at the Trade Center. If residue
of the component constituting ninety-five percent of the charge was not
recovered, it should be no surprise that remains of the five percent component
were not found. Williams conceded at his OIG interview that the failure to find
the microballoons meant only that it's possible that they were not there.
Williams added, I couldn't eliminate them, because we didn't find anything.

Similarly, the failure to find tipper ties did not rule out water gels. Williams
testified at his OIG interview as follows:

OIG: Just because you didn't find tipper ties does not really rule
out those explosives, did it?

AGENT WILLIAMS: No, it does not. It would not rule it out.

If the explosives were shucked of all of their wrappers,
completely shucked of the wrappers, I would not have found
anything.[]

In his OIG interview, Williams told us: Because I did not find any evidence of
any of the other commercial explosives does not necessarily mean that they

were not used. Accordingly, we conclude that Williams should not have
testified at trial that he could rule out the slurries, water gels, and emulsions.

Fourth, in his OIG interview Williams stated that, based on his assessment of
the damage at the scene, he really could not make any type of identification of
the explosive used at the Trade Center:

OIG: And I take it from your answer, that based on your
assessment of the explosive damage that you observed and was
made known to you, you could not have rendered an opinion that
the bulk of the explosives in this case was urea nitrate; is that
correct?

AGENT WILLIAMS: . . . . If I just had to work with that crime
scene, there's no way I could have called any kind of explosive.

OIG: Because it could have been ANFO?

AGENT WILLIAMS: It could have been emulsions.

OIG: Could have been emulsions.

AGENT WILLIAMS: It could have been anything.

(Emphasis added). Williams' acknowledgment at the OIG interview that, based
on the crime scene, the main explosive could have been anything differs
significantly from the opinions he rendered at the Salameh trial. At the trial

Williams testified that his observations at the scene enabled him to help the
court determine the explosive that may have been used in the blast. Now he has
admitted that there's no way I could have called any kind of explosive. In light
of Williams' OIG testimony, we are deeply troubled that his testimony on direct
examination may have misled the court.
In sum, we conclude that Williams' direct examination was inaccurate and
misleading, and suggested too strongly that a fertilizer-based explosive like
ammonium nitrate or urea nitrate was used in the Trade Center bomb.

(b) Cross-Examination

Even more troubling than Williams' direct examination was a part of his crossexamination in which he rendered an incriminating opinion based on
speculation beyond his scientific expertise. On direct, Williams identified a
category of explosives that fit the VOD and damage that he observed at the
post-blast scene. This category included but was not limited to urea nitrate. At
his OIG interview (as discussed above), Williams was emphatic that he could
not identify a specific explosive based on his observations at the crime scene.

Nevertheless, Williams testified on cross-examination that the bulk of the
explosive was, in my opinion, urea nitrate. See also on the same page of crossexamination: I believe urea nitrate was the bulk of the constituent in that bomb
with other explosive materials. At his interview we asked Williams how he
could render such an opinion, and he answered: the reason I was able to do that
in testimony was because I had the benefit of the search sites, the storage sites,
the bomb factory and, of course, viewing the evidence from the crime scene.
Williams continued:

OIG: And I take it from your answer, that based on your
assessment of the explosive damage that you observed and was
made known to you, you could not have rendered an opinion that
the bulk of the explosives in this case was urea nitrate; is that
correct?

AGENT WILLIAMS: If I had no benefit of auxiliary searches and
materials, that's absolutely correct. If I just had to work with that
crime scene, there's no way I could have called any kind of
explosive.[]
Williams' use of the auxiliary searches to render an opinion that the bulk of the
main charge was urea nitrate was improper for two independent reasons.

First, Williams improperly based his expert opinion that urea nitrate was the
main charge on the fact that urea nitrate and other materials had been
associated with the defendants. This error is analogous to the one Rudolph
made in Psinakis when he relied on the fact that stripped detonating cord had
been found outside the defendant's house as a basis for his identification of
PETN on a knife. See Part Three, Section A, supra. By basing his opinion on
the collateral evidence associated with the defendants, Williams improperly
engaged in speculation beyond his scientific expertise.

Williams portrayed himself as a scientist and rendered opinions as an
explosives expert. As such, he should have limited himself to conclusions that
logically followed from the underlying data and the scientific analyses
performed. Here, Williams' scientific analysis of the cause of the explosion
rested on an examination of the damage at the post-blast scene. He should not
have based his opinions, in whole or in part, on evidence that was collateral to
his scientific examinations, even if that evidence was somehow connected to
the defendants. For Williams to identify the main charge as urea nitrate based
on evidence that the defendants had or could make that compound is
comparable to a firearms expert identifying the caliber of a spent bullet based
on the mere fact that a suspect had a handgun of a particular caliber.

Earlier in the cross-examination Williams rejected defense counsel's suggestion
that Williams was trying to infer that the items seized at the locations
associated with the defendants must have been the items that were used in the
World Trade Center (emphasis added). Williams testified then that he was only
saying that the items seized could have been used in the Trade Center
explosion. This was a valid scientific assessment of the defendants' capability
and an appropriate rejection of the suggestion that the cause of the explosion

could be determined scientifically from the evidence associated with the
defendants. Williams should have maintained this approach throughout his
cross-examination.

Evidence associated with the defendants is logically relevant to the blast's cause
only under the following chain of reasoning:

(1) Urea nitrate crystals and ingredients were found
at locations associated with the defendants.

(2) Defendants committed the World Trade Center
bombing.

(3) When defendants committed the crime, they must
have used what was available to them, which was
urea nitrate.

(4) Hence, urea nitrate must have been used at the
Trade Center.

This chain of reasoning is objectionable because it is not scientific and because
it uses a presumption or inference of guilt (point two) as a building block in the
analysis. The question of the defendants' guilt is the ultimate issue. It should
not be presumed as a foundation for further analysis. By basing his urea nitrate
opinion on the collateral evidence, Williams implicitly accepted as a premise
the prosecution's theory of guilt. This was improper.

Moreover, even assuming defendants committed the bombing and had the
capacity to make a urea nitrate bomb, that did not necessarily mean urea nitrate

was used at the Trade Center: the defendants, for example, may have disposed
of the urea nitrate elsewhere and used another explosive in the bomb, or they
may have converted the urea nitrate to nitro urea and used that explosive.
Williams' opinion based on the collateral evidence was thus not only
unscientific but also speculative, and it therefore fell well below the minimum
standards required of competent forensic scientists.

Finally, because Williams failed to reveal that his urea nitrate opinion was
based not on his independent scientific examination but on speculation from the
mere fact that defendants could have made urea nitrate, the court was unable to
put the opinion in its proper perspective, and a danger arose that the opinion
would be given undue weight in support of the prosecution's case.

Second, the context of the questioning that led to Williams' identification of
urea nitrate appears limited to an opinion based only on Williams' assessment
of the damage at the crime scene. On direct examination Williams' opinion
regarding the type of explosive used was explicitly [b]ased on the damage and
[his] estimated velocity of detonation. It is obvious that the applicable crossexamination was an attempt to get Williams to repeat what he said on direct
examination, which defense counsel misunderstood. See, e.g.: Correct me if I'm
wrong. If I understood you correctly, you indicated . . . . Moreover, defense
counsel, in the applicable cross-examination, explicitly asked about the
possible bomb that could have caused this kind of damage. . . . [W]as whatever
caused it [the damage] just this one possibility or were there other possible
bombs as well . . . ? The court's questions about ANFO, moreover, make clear
that the court believed the applicable examination related to Williams'
assessment of the damage at the scene. Further, Williams' ready affirmative
answer to the court's question Could it be ANFO? suggests Williams
understood that the inquiry related to the damage at the scene.

It must be remembered that establishing that the explosive used at the World
Trade Center was urea nitrate was extremely damaging to the defendants' case.
Evidence linked the defendants to a bomb factory and storage facility
containing evidence of urea nitrate or the ingredients for urea nitrate, an
explosive rarely used in a criminal device. Williams' testimony on cross-

examination, therefore, that the bulk of the explosive was, in my opinion, urea
nitrate was very incriminating.

In this context, it was unprofessional and misleading for Williams, without
explanation, to base such an incriminating opinion on a factor (the auxiliary
searches) so different from the factors previously relied on (VOD and damage
at the scene).

In sum, when Mr. Campriello asked Williams, Could it have been another kind
of bomb or no? , the question, reasonably interpreted, meant: Could it have
been another kind of bomb or no, based on your expert analysis of the damage
at the crime scene? In any event, even if the questioning was inept, Williams
had an obligation to restrict his opinions to his scientific analysis and to refrain
from speculating about what the main charge must have been based on the
defendants' capacity to manufacture a particular explosive. Williams' answer to
Campriello's question should have been compatible with the answer he gave us:
[The main explosive] could have been anything. We conclude that by
answering instead, [T]he bulk of the explosive was, in my opinion, urea nitrate,
Williams failed in his responsibility to provide the court with an objective,
unbiased expert opinion.

c. Weight of the Explosive

Williams testified at the Salameh trial as follows concerning the weight of the
explosive used in the Trade Center bomb:

Q. And based on your conclusion concerning the type of
explosive did you estimate the quantity of explosive that was
necessary to do the damage that you saw at the World Trade
Center?

A. Yes, I did. And that kind of an analysis, once you recognize the
velocity of detonation of the explosive, and you recognize the
amount of damage that was created, you're able to kind of
estimate how much explosive it would cause in a given
environment to create that kind of damage. My initial estimate
was somewhere between a thousand and 1500 pounds. That was
within a day or two after. And that's about what I estimated,
somewhere within that range. As a ballpark figure, about 1200
pounds.
If you recall, one of the variables, and why I'm such a large
bracket, if you recall last Thursday I showed you some of the
charts that showed configuration of explosives with the arrows
going off at right angles and the Monroe effect with the shaped
charge. The Monroe effect is how the shaped charges work and
cut the steel with opposing angles. Without knowing the
configuration of the explosive that's why we have such a
tremendous variation.
In his OIG interview he explained further:
OIG: . . . [W]hat is it that gets you to between 1,000 and 1,500?
What is it about the damage that leads [you to] that conclusion?

AGENT WILLIAMS: Well, after looking at the -- and estimating
a velocity of detonation, I'm able to estimate the type of
explosives that could have been used.

And in looking at the same or similar type properties of what
caused me to guess a velocity of detonation -- the size of the
crater, damage to surrounding vehicles, the distance from the
scene of the explosion where different materials were damaged
and how they were damaged at those areas -- these things caused
me to come up with that conclusion.

....

These things produced an impression on me that, where the
charge was and how it came apart and comparing it with other
tests that I have done with somewhat smaller charges and what I
could assume I would find with something with about 1,000pound charge.

Some of the same considerations that apply to Williams' testimony about VOD
apply here. First, his analysis is intuitive, unscientific, and imprecise: you're
able to kind of estimate how much explosive (emphasis added); Williams
testified on cross-examination that he was speculating about the weight of the
explosive; [t]hese things produced an impression on me. Second, the weight
estimate was dependent on the VOD estimate ( If you vary one, of course, you
have to vary the other ), and as discussed above the VOD estimate was itself
speculative.

Third, EU examiners normally do not estimate the quantity of explosives
because the placement and confinement of the explosive has such a significant
effect on the amount of damage. As EU Chief Thurman told us:

We do not, on a routine basis, say that the damage in the area,
with the exception of, you know, of the components, now, with
the exception of the components, that the area has been destroyed
with a particular type of explosive, or, more importantly, the
quantity of explosives, because the placement of the device, the
physical confines or lack of confines that the device is exploded in
and around, was significantly impede -- or go into the
determination of how much explosives were used and, in some
cases, what type of explosive was used.

And we try to show this actually during our training in that you
can't say that, as example, three cartridges of dynamite were used
in this explosion in the ground because we can put three cartridges

of dynamite on top of the ground, shoot that, take three cartridges
of dynamite and dig a hole and put them in a hole and then we can
take three cartridges and put them in a hole and cover it up, and
you'll have vastly differing damages there.

On the other hand, Williams' estimate of the quantity of explosives was quite
broad: 1000-1500 pounds, with 1200 pounds as a ballpark figure. The thrust of
his trial testimony about quantity was that it was a rough estimate: you're able
to kind of estimate how much explosive. Viewing agent Williams' estimate of
weight in that light, we conclude that it was within his expertise to render such
an opinion.

C. Williams' Testimony Regarding the Attempt to
Modify Whitehurst's Dictation

Whitehurst alleges that Williams gave inaccurate testimony regarding an
attempt by Williams to modify a report (dictation) written by Whitehurst. The
evidence supports Whitehurst's claim.

On June 15, 1993, Whitehurst submitted dictation to Williams for inclusion in
the official reports of the case. The dictation included the following language:

Solid probe mass spectrometry was also utilized to analyze
specimen Q15 for the presence of residues of urea nitrate. The
results of this analysis were consistent with the presence of urea
and nitric acid. However these materials are also found from this
analytical method following analysis of other materials such as
extracts of urine and fertilizer. Therefore without a confirmation
of the presence of trace amounts of urea nitrate, a conclusion can
not be rendered concerning the presence of this material on the
evidence. Such a confirmation technique is not known to this
examiner at this time. . . .

Specimen Q23 was also analyzed with solid probe mass
spectrometry to determine the presence of residues of urea nitrate.
The results of this analysis were consistent with the presence of
urea and nitric acid. However, these materials are also found from
this analytical method following analysis of other materials such
as extracts of urine and fertilizer. Therefore without a
confirmation of the presence of trace amounts of urea nitrate, a
conclusion can not be rendered concerning the presence of this
material on the evidence. Such a confirmation technique is not
known to this examiner at this time.

(Italics added.)

After receiving Whitehurst's dictation, Williams asked James Corby,
Whitehurst's Unit Chief, whether the sections of the dictation that are italicized
above could be removed. According to Corby, Williams wanted those things
deleted. Corby refused to alter the dictation. A meeting was held with James
Kearney, the chief of the SAS, Alan Robillard, the Assistant SAS Chief, Corby,
and Williams. Kearney and Robillard decided to leave the dictation
substantially unchanged, and Williams agreed to this decision.

Regarding the passages Williams wanted taken out, Williams told us at the OIG
interview:

I felt that was fluff, that wasn't necessary. . . . And the fact that
he's putting in any possibility of where this material could have
come from was bullshit.

The only thing -- if he was going to go into where these chemicals
could have originated from, why didn't he make an opinion that

this Trade Center could have been damaged by an act of God or
lightning?
At the Salameh trial, Williams testified as follows:
Q. Now, early on in this investigation, because you're the case
agent, you reviewed many of the reports that were written by the
other chemists. Am I correct?

A. That's right.

Q. And you were dissatisfied with some of those reports because
you didn't like the phraseology of the language. Am I correct?

A. Not the phraseology, the format.

Q. The format.

And when we talk about format, the specific part of the format
that you didn't like is when those opinions gave alternate reasons
for finding some residue. Am I correct?

A. That's not correct.

Q. Well, when they said that, say like for urea nitrate, in those
reports when it said, urea nitrate could have came from sewage,
you were dissatisfied with those kinds of conclusions; weren't
you?

A. No, I was not.

Williams went on to testify about making some innocuous changes in the
format of a report other than Whitehurst's June 15, 1993, dictation quoted
above.

Although defense counsel's questions lack precision, we think a fair
construction of them implicated Williams' attempt to modify Whitehurst's June
15, 1993, dictation. The sections Williams wanted deleted from that dictation
provided innocent explanations for the residue results as alternatives to a more
incriminating explanation--e.g., urine and fertilizer as alternatives to urea
nitrate. Accordingly, when counsel asked Williams, And when we talk about
format, the specific part of the format that you didn't like is when those
opinions gave alternate reasons for finding some residue. Am I correct? ,
Williams erred when he answered, That's not correct. Similarly, when counsel
asked, Well, when they said that, say like for urea nitrate, in those reports when
it said, urea nitrate could have came from sewage, you were dissatisfied with
those kinds of conclusions; weren't you? , Williams again erred when he
answered, No, I was not. We conclude that Williams' answers to these
questions were, at a minimum, misleading.

D. Other Allegations

In his January 8, 1996, letter to the OIG, Whitehurst made numerous other
allegations concerning Williams' testimony in Salameh.

1. In his testimony Williams attempted to distinguish high from low explosives
by saying that the velocity of high explosives is above, and the velocity of low
explosives below, 3000 feet per second. This is technically incorrect (see
Attachment C, infra), but a common error, which was harmless here.

2. Whitehurst criticizes Williams' general testimony about dynamite. We find
Williams' testimony substantially accurate and within his area of expertise. Any
technical errors (e.g., what is or is not carbonaceous ) were harmless and
insignificant.

3. Williams was technically incorrect when he testified urea nitrate which is
urea and nitric acid, or nitro urea, urea with sulfuric acid. Urea nitrate does not
consist of urea and nitric acid; urea and nitric acid when mixed form a new
substance, urea nitrate. Nitrourea is made by mixing urea nitrate with sulfuric
acid. Although these errors are inconsequential, it may have been preferable for
a chemist to testify to these matters.

4. Williams' attempts to explain how nitroglycerin will precipitate from a
methanol solution and how nitroglycerine decomposes were poor. A
knowledgeable chemist could have provided better explanations. Nevertheless,
Williams was asked the questions, and he no doubt did his best to answer them
accurately. Williams should have told the prosecutor ahead of time that these
matters would be best left to another witness.

5. Williams was asked what the components of urea nitrate are, and he said,
urea and nitric acid. We think the answer was a fair response to the question.
Urea and nitric acid are the ingredients, which when mixed form a new
substance, urea nitrate. One definition of component is ingredient. Webster's
Ninth New Collegiate Dictionary 270 (1990).

6. Whitehurst claims that Williams testified falsely that he (Williams)
researched the use of urea nitrate in the United States. This claim is apparently
based on the fact that Whitehurst did research on the subject. That Whitehurst
did some research does not mean Williams did not. Williams insists that he did
some research. Accordingly, we conclude that Whitehurst's claim is unfounded.

7. Whitehurst criticizes Williams' testimony about the possible explosive uses
of certain materials. Generally, we have no problem with Williams' testimony
on this subject, and believe it was within his area of expertise. Williams can be
second-guessed on certain matters (e.g., the discussion of phenol ), but any
errors were harmless and insignificant.

8. Whitehurst's claim that Williams cannot consider the results of a chemist's
analysis in rendering Williams' own opinion is frivolous.

9. Whitehurst criticizes Williams' description of nitrocellulose. We think that
Williams' description was accurate for one form or type of nitrocellulose, but
was not a good generic description.

10. Despite Whitehurst's criticism, we find that Williams' testimony about the
use of smokeless powder and lead azide as initiators is substantially correct.

11. Despite Whitehurst's criticism, we are not concerned with Williams'
testimony that when he arrives at a blast scene he look[s] for structural damage
to see what repairs have to be done. Obviously, an EU examiner will not
himself direct the repairs, which will be handled by appropriate experts.

12. Contrary to Whitehurst's claim, it is within an explosives examiner's
expertise to identify explosive damage on metal.

13. Whitehurst complains that Williams testified outside his area of expertise
when he discussed the matching of two pieces of tape. Williams has only been
qualified in the FBI Laboratory in the areas of explosives and toolmarks. In the
testimony challenged by Whitehurst, however, all Williams did was describe
the measurements and observations he made, which was merely a factual

description. This testimony was given without objection. We think it was
permissible for Williams to answer the questions asked.

14. Whitehurst criticizes Williams' testimony about blast damage to portions of
a truck. Although Williams is not a metallurgist, we think it was within his area
of expertise to testify that he observed blast damage to the truck.

15. Whitehurst criticizes Williams' testimony about freezing and frozen
nitroglycerine. We, however, find no contradiction in saying that the process of
freezing nitroglycerine is dangerous, but that frozen nitroglycerine is stable.

16. We disagree with Whitehurst's assertion that because some of the pieces of
debris were the size of toothpicks the main charge at the Trade Center could not
have been a heaving explosive.

17. Finally, Whitehurst complains that some of Williams' testimony did not
meet the test of Daubert v. Merrell Dow, 113 S. Ct. 2786 (1993), because
Williams did not use the scientific method, which involves the testing of
hypotheses. Although evidentiary questions are beyond the scope of this
Report, we note that the discussion of expert testimony in Daubert was limited
to scientific . . . knowledge and not technical, or other specialized knowledge.
113 S. Ct. at 2795 & n.8. Much of Williams' testimony could be viewed as
based on technical or other specialized knowledge within the meaning of
Daubert.

III. Pre-Trial Issues

Several controversies occurred, and were resolved to Whitehurst's satisfaction,
before the trials in the World Trade Center case.

A. Specimen Q23

Immediately after the Trade Center bombing, the chemists in the FBI
Laboratory specializing in explosives residue analysis (MAU chemists
Whitehurst and Burmeister), went to New York City to conduct examinations
at the blast scene. That left no chemists specializing in explosives residue
analysis at the laboratory in Washington. When specimens were sent back to
the laboratory for examination, the examinations were conducted by chemists
in the CTU, Unit Chief Roger Martz and Lynn Lasswell.

Specimen Q23 was a tire fragment recovered from the crime scene. Lasswell
analyzed it with solid probe mass spectrometry and concluded that urea nitrate
was detected on the specimen. Martz as unit chief approved Lasswell's
conclusion, which was incorporated in an official report and distributed April
12, 1993. This conclusion would have been extremely helpful to the
prosecution because it would have tended to establish that urea nitrate was used
in the Trade Center bomb.

Whitehurst and Burmeister disagreed with Lasswell's conclusion on the ground
that the instrumental results only really showed the presence of urea and nitric
acid, which could have originated from substances other than urea nitrate--e.g.,
urine, fertilizer, car exhausts, or ice melter. Whitehurst's and Burmeister's
objections, however, were overruled.

Whitehurst and Burmeister then prepared a blind test for Martz by submitting
to him specimens they claimed were from the Trade Center evidence. In reality,
Whitehurst and Burmeister prepared one sample from Whitehurst's urine and
another by mixing ammonium nitrate fertilizer and urea. According to
Burmeister, the results were close enough that you wouldn't be able to tell the
difference from running a sample of urea nitrate. (Martz insists he never
rendered an opinion that these samples were urea nitrate, but said only that the
instrument detected urea and nitric acid.) With the blind test results, Whitehurst
and Burmeister went to Assistant Section Chief Robillard, who scolded them
for making the blind test.

Eventually, Corby directed Whitehurst to make a review of Lasswell's results
and to write a new dictation. Whitehurst made the review and wrote the
dictation. Whitehurst's dictation was incorporated into a new official report
amending the April 12, 1993, report. The new report is dated July 1, 1993. At
the Salameh trial, Burmeister testified in accordance with Whitehurst's
dictation. Martz told the OIG in 1996 that he no longer agrees with Lasswell's
original dictation because the results could have been produced by urea and
nitrates rather than urea nitrate.

Ultimately, the FBI Laboratory correctly resolved the controversy concerning
Q23, although the resolution procedure ( blind tests, etc.) was flawed.
Moreover, the chemist who examined Q23 should have been trained in the
explosives residue protocol.

B. Specimen Q65

The Barringer Ion Mobility Spectrometer (IMS) tests for the presence of
particular molecules. When a sample is introduced, a graph is produced with
peaks. Certain substances have distinctive graphs or peaks. If a distinctive peak
is produced, an inference can be drawn that a particular substance is present.
The manufacturer programs the memory of the instrument to identify common
explosives such as nitroglycerine. The user of the instrument can also program
the memory to identify certain peaks.

Lasswell introduced a urea nitrate sample in the IMS and produced a particular
peak. He then programmed the memory of the instrument to indicate the
presence of urea nitrate whenever that peak reappeared. When specimen Q65
was submitted to the IMS, a graph was produced, and the machine
automatically identified one of the peaks as urea nitrate.

When Whitehurst reviewed Lasswell's instrumental results to prepare the
dictation that went into the July 1, 1993, official report, he examined the IMS
graph for Q65. Whitehurst took the position that the peak was not for urea
nitrate specifically, but was just a nitrate peak that would be produced by
certain nitrates, including but not limited to urea nitrate. Based on this,
Whitehurst took issue with Lasswell's decision to program the memory of the
IMS to identify the particular peak as urea nitrate. He wrote the OIG (in one of
his first submissions to us) as follows:

We [Whitehurst and Burmeister] pointed out that Mr. Lasswell
had altered the output of one instrument to reflect information that
would have, if presented in its altered manner, been scientific
fraud, unethical, wrong and very damning to the defense position
in this matter.

Whitehurst stated in a letter to the OIG that the analytical output was purposely
altered to read <urea nitrate' in order to deceive the innocent reader of the
computer printout. This claim is grossly overstated and without merit.

Both Lasswell and Martz insist that the IMS was used only as a screening
mechanism to determine whether urea nitrate was possibly in the specimen.
Lasswell asserted that when he identified the presence of urea nitrate in Q65 in
his original dictation, he relied on instruments other than the IMS.

Whitehurst acknowledged in his OIG interview that the IMS could properly be
used as a screening device for urea nitrate. Moreover, in his own dictation for
Q65, Whitehurst stated as follows:

White crystalline material adhering to specimen Q65 was
analyzed with Fourier transform infrared spectrophotometry, IMS
and sol[i]d probe/triple quadrapole mass spectrometry. These
analyses identified the presence of urea nitrate.

(Emphasis added). When Whitehurst was asked at his OIG interview whether
he was saying that Lasswell intentionally tried to create false information,
Whitehurst stated, No, no.

We conclude that the implication in Whitehurst's assertion--that Lasswell
engaged in something like scientific fraud, [which was] unethical, wrong and
very damning to the defense position in this matter --is unfounded. Although
labeling the peak on the IMS graph as a urea nitrate peak was potentially
misleading (because the peak could be caused by other nitrates), the IMS could
properly be used as a screening device for urea nitrate. Accordingly, we find
that Lasswell engaged in no misconduct in his work with the IMS.

C. Other Matters Involving Williams

At one point in the Trade Center investigation the government was preparing
affidavits for search warrants and wanted to use an examination by Whitehurst
that found nitroglycerine on a specimen. Although Whitehurst found
nitroglycerine, he refused to make a positive identification because of the
possibility of contamination by a bomb technician. Instead, he was only
prepared to say that the results were consistent with the presence of
nitroglycerine on the specimen. Williams argued strongly for Whitehurst to
make a definite assessment. Whitehurst considered this argument to constitute
undue pressure to get me to change the wording in my report.
Although we do not know the exact words Williams used, we find no
impropriety in Williams discussing the matter with Whitehurst to determine
whether a more definite conclusion could be reached. Ultimately, the report
was not changed.

Additionally, Williams changed the format of one of Whitehurst's dictations
when Williams issued one of the official reports. With a series of specimens,
Whitehurst set forth each instrument he used to examine each specimen.

Williams made a list of all the instruments and said one or more was used with
each specimen, and then just set forth the results with respect to each specimen.
Williams also replaced the language None of these explosives were detected on
the specimens with Analysis was conducted with negative results. Whitehurst
protested the changes, and a new report was issued containing his dictation
verbatim.

We consider the changes in format innocuous. One of the reasons Williams
gave for the changes, however, is troubling. In referring to Whitehurst's habit of
always setting forth, at length, the technical examinations made, Williams
stated: [I]f I've got to retype this there's always the possibility of a
typographical error and it's a pain in my neck to do it everytime.

A principal examiner (PE) is supposed to include verbatim in the official report
the dictation of an auxiliary examiner (AE) unless the AE and the AE's Unit
Chief agree to the change. In the Trade Center case Williams was the PE and
Whitehurst an AE. The verbatim-inclusion rule is fundamental and should not
be broken at any time. The burden of retyping a lengthy or technical dictation is
an inadequate reason for violating the rule.

D. Allegation Concerning SSA Haldimann

In December 1993 Whitehurst submitted a memorandum to the OIG
concerning a conversation he had with SSA Don Haldimann on December 15,
1993. According to Whitehurst, Haldimann stated that the Assistant United
States Attorneys (AUSAs) in the Trade Center case had grave concerns about
the complexity of Whitehurst's dictation and thought the information in the
dictation could be damaging to the case. Whitehurst further asserted that
Haldimann said that the U.S. Attorney's Office had inquired into means of
circumventing my testimony in this matter and is displeased with my expert
opinion as it is stated because it offers strength to the defense side in this
matter. Whitehurst characterized Haldimann's statements as indicating possible
suppressions of evidence by the U.S. Attorney's office . . . [which] can be
deemed to be fraudulent and unethical.

At the Rahman trial, Whitehurst testified that after the December 15, 1993,
conversation he met with the prosecutors in the World Trade Center case and
felt no pressure from the lawyers on the prosecution team. He testified further,
however, that in the December 15, 1993, conversation he felt pressure from
Haldimann to take out the qualifying statements in his dictation. Whitehurst
acknowledged that the conversation with Haldimann occurred at a Christmas
party.

In his OIG interview Haldimann stated that the conversation on December 15,
1993, was a personal conversation at a Christmas party and lasted about 10 or
15 minutes. Haldimann stated that in the conversation Haldimann was merely
giving his opinion that the dictation was confusing and included superfluous
information and that simpler reports would be better. Haldimann insisted in the
interview that he was in no way asking or attempting to influence Whitehurst to
change the reports ; the reports had already been provided to the defense
attorney in discovery, and therefore the point was moot. Haldimann stated in
the interview that it was his impression that the AUSAs in the case were
distressed about Whitehurst's dictation, and he did tell Whitehurst that the
AUSAs did not want to put Whitehurst on the stand. Finally, Haldimann stated
in the interview that no one directed him to talk to Whitehurst.

Whitehurst did not change his dictation as a result of the Haldimann
conversation, and Whitehurst was agreeable to having Burmeister testify at the
Trade Center trials.

Although we are unable to determine the specific words used in the December
15, 1993, Christmas party conversation, we think Whitehurst grossly overstated
the matter in his memorandum. Whatever was said in this brief conversation
does not constitute or evince suppressions of evidence . . . [which] can be
deemed to be fraudulent and unethical. Although both Whitehurst and
Haldimann may have raised their voices during this conversation, ultimately it
signified nothing.

IV. Conclusion

We are profoundly disturbed by Williams' testimony in the Salameh trial. We
conclude that Williams (1) gave inaccurate testimony regarding his role in the
manufacture of urea nitrate and regarding whether the urea nitrate was made
pursuant to Arabic formulas from bomb-making books; (2) testified beyond his
expertise regarding the defendants' capacity to make urea nitrate and in a way
that made the testimony appear tailored to the most incriminating result; (3)
gave incomplete testimony concerning the VOD of urea nitrate; (4) gave an
invalid opinion regarding the VOD of the main charge; (5) gave invalid and
misleading opinions on direct examination concerning the explosives that may
have been used in the bombing; (6) regarding his identification of the main
charge on cross examination, gave an opinion that was based on speculation
beyond his scientific expertise and that appears tailored to the most
incriminating result; and (7) gave misleading testimony concerning his attempt
to modify Whitehurst's dictation. In short, the testimony lacked the objectivity,
credibility, and competence demanded of examiners in the FBI Laboratory.

Williams' testimony also suggests the need for certain improvements in
Laboratory procedure that we discuss in detail in Part Six of this Report. For
example, Williams' testimony about a specific VOD had no precedent in the
FBI, and we found it to be scientifically unjustifiable. This error would have
been avoided had Williams followed the ASCLD/LAB requirement that new
procedures be validated before they are used in casework. Similarly, the need
for complete case notes was exemplified by the absence of any notes
supporting Williams' claim that he determined the VOD of urea nitrate from
conversations with persons outside the Laboratory. Further, Williams' lack of a
scientific background may have been the cause of his difficulty with the
stoichiometric calculations. Finally, clear guidelines regarding what is within
an EU examiner's expertise may have helped Williams avoid other problems
identified in this section.

The pre-trial issues present relatively minor matters, but exemplify the need to
follow applicable protocols and to have an orderly dispute-resolution procedure
within the Laboratory.

#####

SECTION D: THE BUSH ASSASSINATION ATTEMPT

I. Introduction

In April 1993, former President George Bush visited Kuwait to commemorate
the victory over Iraq in the Persian Gulf War. During Bush's visit, Kuwaiti
authorities arrested 17 people allegedly involved in a plot to kill Bush using a
car bomb.

The United States sent various personnel to Kuwait to investigate the alleged
assassination attempt. Based on interviews of the alleged coconspirators,
forensic examinations of the explosive devices, and intelligence reports, the
United States Government concluded that Iraq was behind the attempted car
bombing. In response, on June 26, 1993, President Clinton ordered a cruise
missile strike against an Iraqi Intelligence Service (IIS) building in Baghdad. A
Kuwaiti court later convicted all but one of the defendants charged with crimes
arising from the assassination attempt.

Whitehurst alleges that he compared the explosive material in the main charge
of the Bush device to explosive materials in known Iraqi devices and told
Explosives Unit Chief J. Christopher Ronay that the explosives were different.
Whitehurst claims that Ronay purposely misinterpreted these results in order to
link the explosive material to Iraqi agents. Whitehurst further asserts that very
possibly his results were changed to support the retaliatory missile strike by the
United States.

We reviewed relevant Laboratory reports, dictation, and work papers, along
with relevant memoranda, articles, notes, teletypes, and reports concerning the
Bush assassination attempt. We also interviewed various witnesses from the
FBI, including Whitehurst, former Explosives Unit Chief J. Christopher Ronay,

former Explosives examiner Alan R. Jordan, and FBI Counter Intelligence
Section Chief Neil Gallagher, along with personnel from the CIA Counter
Terrorism Center and DOJ Terrorism and Violent Crime Section.

We conclude that the evidence does not support Whitehurst's claim that Ronay
changed or purposely misinterpreted Whitehurst's results, either in the
Laboratory reports or verbally during discussions of those results. Nor does the
evidence support Whitehurst's suggestion that the United States launched the
missile strike against the IIS building in Baghdad based on a misinterpretation
of Whitehurst's results. This case does illustrate the importance of documenting
all case-related work in the Laboratory. To the extent that the results of
Whitehurst's comparison were reported less precisely than they should have
been, such lack of precision may have been avoided if Whitehurst had prepared
a written report containing those results.

II. Factual Background

Former President George Bush visited Kuwait between April 14 and April 16,
1993, to commemorate the allied victory in the Persian Gulf War.
Accompanying Bush were his wife, two of his sons, former Secretary of State
James A. Baker III, former Chief of Staff John Sununu, and former Treasury
Secretary Nicholas Brady.

In late-April 1993, the United States learned that terrorists had attempted to
assassinate Bush during his visit to Kuwait. The Kuwaiti authorities arrested 17
persons suspected in the plot to kill Bush using explosives hidden in a Toyota
Landcruiser. The Kuwaitis recovered the Landcruiser, which contained
between 80 and 90 kilograms of plastic explosives connected to a detonator (
the Bush device or Bush explosive device ). The Kuwaitis also recovered ten
cube-shaped plastic explosive devices with detonators (the cube-bombs ) from
the Landcruiser. Some of the suspects reportedly confessed that the Iraqi
Intelligence Service (IIS ) was behind the assassination attempt.

On April 29, 1993, CIA bomb technicians compared the Bush explosive device
to two known Iraqi explosive devices found in different Middle-Eastern
countries in 1990 and 1991 (the Middle-East devices ) . The technicians
reported that the remote control firing mechanism in the Bush device was
identical to those in the Middle-East devices. Additionally, the technicians
reported that blasting caps from the Bush device appeared to be identical to
those found in one of the Middle-East devices. The technicians later concluded
that the circuit board from the Bush device also closely resembled circuit
boards from the Middle-East devices.

In early-May 1993, the FBI sent personnel to Kuwait to interview the suspects
and examine the physical evidence. FBI Special Agents, along with
representatives of the Secret Service and State Department, interviewed 16
suspects, some more than once. Two of the suspects, Wali 'Abd Al-Hadi 'Abd
Al-Hasan Al-Ghazali ( Al-Ghazali ) and Ra'd 'Abd Al-Amir 'Abbud Al-Asadi (
Al-Asadi ), admitted during the FBI interviews that they had participated in the
plot at the direction of the IIS.

Explosives examiner Jordan also traveled to Kuwait in May 1993 to examine
the Bush device. Jordan examined the main charge, which was hidden in three
panels in the Landcruiser and was capable of being detonated by remote
control, a timing device, or a push-pull suicide switch. Jordan compared the
Bush device to photographs of the Middle-East devices, as well as other
devices, and concluded that the same person or persons manufactured the Bush
device and one of the Middle-East devices, and that a connection existed
between persons responsible for the Bush device and several other devices,
including the other Middle-East device. Jordan reported these conclusions in a
May 11, 1993 Laboratory report.

Jordan then returned to Washington, D.C., and delivered samples of the
explosives from the Bush device to Whitehurst. Whitehurst analyzed the
explosive from the main charge and concluded that the substance was
approximately 96% RDX, 3% polyvinyl-isobutyl ether binder, and 1%
hydrocarbon oil. As for samples from the cube-bombs, Whitehurst concluded
that the explosive was consistent with an explosive containing RDX bound

with a cross-linked phenoxy or epoxy binder containing Sudan I dye.
Whitehurst reported these findings in his June 7, 1993, dictation.

Shortly thereafter, Jordan returned to the Middle-East to conduct further
examinations of the Bush device and the Middle-East devices. Based on these
examinations, Jordan reported significant consistencies in the selection of
individual components and alterations to manufactured items in all of the
devices. Jordan concluded that the similarities represented signature
characteristics. He further reported that the same person or persons of close
association constructed the remote control fuzing systems and electronic timing
mechanisms used in all of these devices. Jordan also reported that a second
person or persons of close association were responsible for adding wiring and
components to the Bush device and one of the Middle-East devices, enabling
those devices to be incorporated in vehicles. Jordan reported these conclusions
in his June 18, 1993, Laboratory report, in which he also summarized parts of
Whitehurst's June 7, 1993, dictation.

On June 2, 1993, representatives of the FBI, the Central Intelligence Agency
(CIA), and others in the Department of Justice (DOJ) discussed the results of
their investigations with representatives of the Clinton Administration. Three
weeks later, the DOJ and CIA reported their conclusions. The DOJ and CIA
reported that it was highly likely that the Iraqi Government originated the plot
and more than likely that Bush was the target. Additionally, based on past Iraqi
methods and other sources of intelligence, the CIA independently reported that
there was a strong case that Saddam Hussein directed the plot against Bush.

On June 26, 1993, the United States launched a cruise missile attack against a
building housing the IIS in Baghdad in retaliation for the assassination attempt
on former President Bush. According to news reports, the attack killed between
six and eight persons and injured approximately 12 others. On June 27, 1993,
Madeleine Albright, U.S. Ambassador to the United Nations, addressed an
emergency session of the Security Council and provided evidence to support
the attack on the IIS facility.

III. Analysis of Whitehurst's Allegations

In a letter to the DOJ OIG, Whitehurst claims that Ronay may have purposely
misinterpreted his results in order to suggest involvement by Iraq and support
the missile strike by the United States.
Whitehurst explains that before the missile strike, Ronay asked him to compare
the explosive material in the Bush device to explosive materials and residues
from Iraqi devices discovered in Southeast Asia during the 1991 Gulf War (the
Southeast Asia devices or Southeast Asia explosives ). When Whitehurst
previously examined the explosives and residues from these Southeast Asia
devices, he reported that they were consistent with, or could have come from, a
British-made plastic explosive described as "PE-4A," although the results did
not agree entirely with the formula for British PE-4A.

Whitehurst told us that he conducted the comparison suggested by Ronay and
found that the binder material from the Southeast Asia explosives readily
dissolved in acetone and had a relatively low molecular weight distribution,
unlike the binder material in the Bush explosive. Therefore, according to
Whitehurst, he informed Ronay that the explosive in the Bush device which he
suspected to be Portuguese PE-4A, was very much different from the
explosives in the Southeast Asia devices, which he thought were similar to
British PE-4A :

I advised Ronay that at the time of the analysis of [the Southeast
Asia] material we had interpreted the data to be consistent except
in one aspect with a British product called PE-4A which was very
much different from Portuguese PE-4A which was what we
suspected the material used in the [Bush] assassination attempt
was.

Whitehurst did not incorporate the results of this comparison in any dictation or
written report.

Whitehurst stated that he later read a newspaper article and an FBI
memorandum about the Bush matter, which he believed suggested that his
comparison results had been used to link the Bush device to Iraq and to support
the missile strike. Whitehurst told us that as a result, he reviewed his data again
and discovered that he had overlooked Fourier Transform Infrared (FTIR) data
from the Bush explosives that resembled FTIR data from the Southeast Asia
explosives. This discovery somewhat lessened Whitehurst's concern about the
reported relationship between the Bush and Southeast Asia explosives. Still,
Whitehurst remained concerned that after he had advised Ronay that there was
no link between the Bush explosive and other explosives, Ronay had purposely
misreported this conclusion.
A. The Laboratory Reports

To determine whether Ronay misreported Whitehurst's comparison results, we
first reviewed the Laboratory reports prepared by the Explosives Unit in this
matter. Our review showed that the Laboratory reports, which Ronay had
authority to approve as Unit Chief, did not misstate the results of Whitehurst's
comparison.

Explosive examiner Jordan prepared four Laboratory reports in the Bush
matter. None of these reports mentioned Whitehurst's comparison of the Bush
and Southeast Asia explosives. Specifically, the May 11, 1993, Laboratory
report did not contain any dictation by Whitehurst. The June 18, 1993,
Laboratory report included a summary of Whitehurst's June 7, 1993, dictation,
but again did not include any results from the comparison performed by
Whitehurst. The November 2, 1993, Laboratory report contained a verbatim
version of Whitehurst's entire June 7, 1993, dictation, except for a transcription
error, but did not mention Whitehurst's comparison results. Finally, the
December 17, 1993, Laboratory report contained the results of Whitehurst's
comparison of the explosive materials in the cube-bombs with known Iraqi
explosives, but again did not include his results from the comparison of the
main charge of the Bush device to the Southeast Asia explosives.

Although these Laboratory reports did not misstate Whitehurst's findings, our
review did show that Jordan, in the June 18, 1993, Laboratory report, omitted
and rewrote parts of Whitehurst's June 7, 1993, dictation. Specifically, Jordan
omitted a description of the instrumentation used in Whitehurst's analysis and
the results from Whitehurst's examinations of the detonator leg wires,
detonating cord, and end plug. Jordan also reworded Whitehurst's description
of two earlier laboratory cases involving explosive material similar to that in
the Bush device. When questioned about these changes to Whitehurst's
dictation, Jordan explained that his June 18, 1993, Laboratory report was not a
normal report. Jordan told us that his supervisors at the FBI, including FBI
Counter Intelligence Section Chief Neil Gallagher, requested just an opinion
from the explosive examiner. Therefore, Jordan suggested that he included only
those portions of Whitehurst's dictation that he had considered in forming his
own opinion.

We think that once Jordan decided to include any part of Whitehurst's dictation,
he should have included all of that dictation verbatim. As discussed elsewhere
in our Report, the practice within the Explosives Unit of rewriting or editing the
dictation of other examiners created an unacceptable risk of misinterpretation.

B. Verbal Reports by Ronay

We further sought to determine whether Ronay verbally misreported the results
from Whitehurst's comparison of the explosive material in the Bush device and
Southeast Asia devices. The evidence does not support this claim.

During our interviews, Ronay stated that he possibly reported some of the
Laboratory's results to representatives of the FBI and CIA. Ronay stated that
although he did not rewrite any of Whitehurst's dictation, he may have
paraphrased Whitehurst's conclusions in those briefings. Ronay reported that he
could not specifically recall requesting that Whitehurst compare the Bush
explosives to the Southeast Asia explosives or receiving any results from those
comparisons. However, he vaguely recalled that Whitehurst stated that the
explosive in the Southeast Asia cases could be British PE-4A and the explosive

in the Bush device could be Portuguese PE-4A. Ronay stated that if Whitehurst
had reported this, he may have told others that the explosives were consistent
with a PE-4A kind of explosive, [but] they are different. Ronay added that he
would not have portrayed the explosives as chemically identical.

We interviewed Neil Gallagher, Chief of the FBI Counter Intelligence Section,
about Ronay's statements. Gallagher told us that as Chief of the Intelligence
Section, he reported the results of the FBI's investigation in the Bush matter to
appropriate parties in the Administration. Gallagher stated that sometime before
the June 2, 1993, meeting with the Attorney General, Ronay told him that the
explosive material used in the Bush device and other Iraqi devices (including
the Southeast Asia devices) was PE-4A, but that the FBI could not connect
these explosives chemically or say that they came from the same shipment,
sources, or country. Gallagher also stated that Ronay told him that there could
be chemical differences in different batches of PE-4A and that one could only
say that these bombing cases involved a plastic explosive described as PE-4A.
Based on this conversation with Ronay, Gallagher reported to us that he
believes he clarified for the Attorney General in the June 2, 1993, meeting that
the explosives used in these cases were consistent with some type of PE-4A,
but that this identification alone would not be enough to connect the devices.
Gallagher stated that he also told the Attorney General that the identification of
PE-4A was not that significant because its use was so common.

Although it appears that Ronay did report that the explosives in the Bush and
Southeast Asia devices could not be connected based on chemical composition,
subsequent reports on the matter tended to ignore such chemical differences. In
a report to the President drafted before the missile strike by representatives with
the DOJ Terrorism and Violent Crime Section, the DOJ reported in pertinent
part:

The results of chemical and physical analyses of the explosive
main charge from the Kuwait car bomb are consistent with the
presence of a moldable plastic bonded explosive composed of
approximately 96% RDX explosive, 3% poly (vinyl-isobutyl
ether) binder and 1% hydrocarbon oil (PE-4A). According to the
FBI Laboratory Explosives Unit, PE-4A plastic explosive was

contained in a terrorist improvised explosive device used by Iraqi
operatives in early 1991 in [Southeast Asia] and two other devices
believed to have been used by Iraqi operatives in [Southeast Asia]
in early 1991.

(Emphasis added). A DOJ representative who assisted in preparing this Report
told us that the FBI provided the information in this paragraph, although that
DOJ representative was not sure whether the language later was massaged in
some way.

Similarly, in the CIA's report to the President before the missile strike,
members of the CIA Counter Terrorism Center (CTC) reported in part:

The results of chemical and physical analysis of the explosive
main charge from the car bomb recovered in Kuwait indicate an
explosive known as PE-4A. According to the FBI Laboratory
Explosives Unit, PE-4A plastic explosive was contained in
terrorist improvised explosive devices used by Iraqi operatives in
early 1991 in [Southeast Asia].

(Emphasis added). Representatives of the CTC also told us that this information
came from the FBI.

Moreover, even after the missile strike, the FBI and CIA continued to report
simply that PE-4A plastic explosive had been identified in the Bush device and
other Iraqi explosive devices, including those from Southeast Asia. We found
such language in FBI memoranda and a FBI teletype concerning the Bush
matter, as well as in two CIA intelligence reports.

Thus, the evidence shows that Ronay and Gallagher did understand and report
that the Bush explosive and the Southeast Asia explosives contained PE-4A
that the FBI could not say was chemically identical. At the time, Whitehurst
suspected that the explosive in the Bush device was Portuguese PE-4A and that
the explosive in the Southeast Asia devices was similar to British-made PE-4A.
However, subsequent reports failed to note the possibility of chemical
differences and simply reported that all of the cases involved a PE-4A plastic
explosive. While these reports were not as precise as Whitehurst would have
liked because they failed to discuss specific chemical differences, we find no
evidence that Ronay or Gallagher purposely misreported that the explosives
were chemically identical.

We also note that if the comparison results were not reported as precisely as
possible, that lack of precision may have resulted from Whitehurst's own
failure to prepare dictation reporting his findings. Whitehurst told us that he did
not prepare such dictation because the results of his comparisons were already
addressed in his June 7, 1993, dictation. In that dictation, Whitehurst reported
that he had detected this type of explosive two times in the past, and then
referred only to two prior Laboratory cases involving caches of explosives that
the FBI could not link to Iraq. Whitehurst's explanation does not justify his
failure to prepare dictation. As illustrated in this case, analytical results that
provide a basis for distinguishing explosives can be as meaningful as results
showing that explosives are chemically identical. Whitehurst should have
prepared dictation explaining that he had compared the Bush and Southeast
Asia explosives and documenting chemical differences between the explosives.

C. The Missile Strike

Whitehurst also suggests that the United States may have launched the missile
strike against the IIS Building in Baghdad as a result of his findings being
misreported.

Contrary to Whitehurst's suggestion, the decision to launch the missile strike
did not turn on reports that the Bush and Southeast Asia explosives contained

PE-4A. The FBI and CIA assembled extensive evidence of Iraqi involvement,
including admissions from two key suspects, forensic examinations of relevant
explosive devices, and intelligence from various sources. Our investigation
showed that reports that the Laboratory had found PE-4A in the Bush matter
and Southeast Asia cases were not a significant part of the overall evidence
against the Iraqi Government.

Specifically, the evidence presented to the Administration included admissions
from the two main suspects, Al-Ghazali and Al-Asadi. Each confessed during
interviews with the FBI that they had participated in the plot at the direction of
IIS officers. Al-Asadi, an Iraqi national, stated that he was recruited by
suspected IIS officer, Muhammad Jawad. Jawad reportedly instructed Al-Asadi
to plant the cube-bomb explosives in commercial areas of Kuwait City and to
guide Al-Ghazali to Kuwait University. Al-Asadi reported that Al-Ghazali later
told him that Bush was the target, although Al-Ghazali disputed this assertion.
Al-Ghazali, also an Iraqi National, reported that he was recruited by suspected
IIS officer, Abu Rafid. Rafid allegedly told Al-Ghazali that Bush was the target
of the bombing attempt. Al-Ghazali also reported that Muhammad Jawad
assisted in the plot.

The Administration also received forensic results from the FBI and CIA. These
results consisted primarily of comparisons of components from the Bush device
to other known Iraqi devices, including the Middle-East devices. CIA
technicians found that the remote-control firing devices in the Bush case
closely resembled devices used in other IIS devices, including the Middle-East
devices. They found that blasting caps in the Bush case had the same
characteristics as those found in one of the Middle-East devices, and the
detonators matched those found in the other Middle-East device and one of the
Southeast Asia devices. They further determined that the cube-bombs
incorporated timing circuits and remote control firing devices containing
integrated circuits used by Iraq in other devices.

Likewise, FBI explosives examiner Jordan found that the makers of the Bush
device and the Middle-East devices used the same basic components, including
the same circuit boards, manufactured radio control units, and anodized metal
container. The circuit boards even had the same serial numbers, suggesting a

single manufacturer, according to Jordan. Jordan characterized the maker's
placement of components and soldering techniques as a signature. Jordan added
that he observed in the radio-controlled receiving units the same drilled holes,
wiring, component selection for incorporating an external power source, and
soldering expertise. He also observed similar heat-shrunk, textile, and plastic
materials used to protect wires, along with an unusually large quantity of black
electrical tape. Jordan also pointed to other similarities, including similar or
identical breaks and jumpers in the circuit boards, similar computer-type ribbon
cable, similar adhesive material added to the potentiometers, and the same
positioning of resistors on the timing mechanism.

Additionally, before the missile strike, the CIA obtained various intelligence
reports indicating involvement by the Iraqi Government. The CIA learned that
the IIS was planning to assassinate Bush now that he had returned to private
life and that the assassination attempt would occur only with authorization from
Saddam Hussein. The CIA also received information suggesting that Saddam
Hussein had authorized the assassination attempt to obtain personal revenge
and intimidate Kuwait and other Arab states.

Representatives of the DOJ, FBI, and CIA told us that in view of this evidence
of Iraqi involvement, the Administration had significant information indicating
Iraqi involvement aside from identification of the explosive material. Neil
Gallagher stated that the identification of the explosive material in the Bush
device was not a critical issue because the FBI could not say that the explosive
material was identical to that in other Iraqi devices. According to Gallagher,
similarities in the wiring, fuzing system, and circuit boards were deemed more
significant than whether the explosive was identical to what had been contained
in known Iraqi devices. Likewise, other highly placed representatives in the
FBI Intelligence Division told us that the FBI established responsibility for the
assassination attempt based on interviews of the suspects and examinations of
the circuitry and wiring that showed signature characteristics.
Similarly, representatives of the DOJ Terrorism and Violent Crime Section
stated that the various intelligence information, similarities in wiring and
circuitry, and the confessions of the suspects were more important than the
composition of the main charge. Representatives of the CIA Counter Terrorism
Center also told us that analyses of the electrical components constituted more
compelling evidence of Iraqi involvement, and that they were confident that

Iraq was responsible based on the firing device, statements by the suspects, and
Iraqi methods of operation. Even Ambassador Albright in her remarks to the
United Nations focused almost exclusively on similarities in wiring and
circuitry of the various devices, statements by the suspects, and information
from the intelligence community.

In sum, it appears that significant information linked Iraq to the attempted
bombing aside from any information about the explosive material. Even
Whitehurst acknowledged that [t]here may have been sufficient data in other
areas [to support the missile strike] and I have no doubt that there was. The
evidence suggests that the identification of PE-4A in the Bush and Southeast
Asia cases, even if stated less precisely than Whitehurst would have liked, was
not responsible for the decision to launch the missile strike.

IV. Conclusion

The evidence does not support Whitehurst's claim that Ronay purposely
changed or misinterpreted Whitehurst's results, either in the Laboratory reports
or during discussions of those results. Nor does the evidence support
Whitehurst's suggestion that the United States launched the missile strike
against the IIS building in Baghdad based on a misinterpretation of
Whitehurst's results.

This case does illustrate the importance of documenting all case-related work in
the Laboratory. To the extent that chemical differences between the Bush and
Southeast Asia explosives did not receive appropriate emphasis in this matter,
that result may have been avoided if Whitehurst had prepared written dictation
reporting his results.

#####

SECTION E: AVIANCA BOMBING

I. Introduction

On November 27, 1989, Avianca Airlines Flight 203, originating from Bogota,
Colombia, exploded shortly after take-off, killing the 107 persons on board
including two Americans. SSA Richard Hahn was assigned to this case as part
of a team of representatives from the United States. Hahn collected evidence at
the crime scene, examined evidence, and prepared a final report. Dandeny
Munoz-Mascara (Munoz) was indicted for causing the explosion and in 1994
was tried twice in the Eastern District of New York. The first trial resulted in a
mistrial; he was convicted in the second trial. Hahn testified as an explosives
expert in both trials.

Whitehurst alleges that in the trials Hahn, among other things, fabricated
evidence, committed perjury, and testified outside his area of expertise.
Whitehurst's principal allegations concern Hahn's testimony about (1) the type
of explosive that caused the crash, (2) Whitehurst's scientific results, and (3)
the fire and secondary explosion that followed the initial blast.

To investigate Whitehurst's claims, we reviewed the pertinent Laboratory
reports and, where available, the underlying work papers and test results. We
reviewed transcripts of the testimony of Hahn and the closing arguments made
by the prosecutor in both trials. We also questioned agents Hahn and
Whitehurst and their former unit chiefs, J. Christopher Ronay and James Corby.
Finally, we also interviewed others involved in the case, including Edward
Bender, James Kearney, Donald Thompson, Dwight Dennett, former Assistant
United States Attorneys (AUSAs) Cheryl Pollak and Beth Wilkinson (who
jointly tried the Munoz case twice), and DEA agent Sam Trotman.

We conclude that Hahn did not commit perjury or fabricate evidence. We
further conclude, however, that Hahn gave testimony that was, in part, either

scientifically unsound or beyond his expertise. We also conclude that Kearney
erred when he failed to resolve a dispute between Hahn and Whitehurst; the
result was that Hahn gave incomplete testimony regarding Whitehurst's
scientific results. Finally, we conclude that Whitehurst sent a scientifically
flawed memorandum to the prosecutor during the first trial and committed
other errors in the case.

The following section (Section II) summarizes the factual background to the
allegations. Section III analyzes the issues relating to Hahn's testimony (Section
A) and Whitehurst's conduct (Section B). We state our conclusions in Section
IV.

II. Factual Background

A. The Crime Scene

On November 29, 1989, Hahn arrived in Colombia to investigate the crash.
While there, he met with and discussed the aircraft explosion with experts from
the Federal Aviation Administration (FAA) and the National Transportation
Safety Board (NTSB). He and other experts in various fields examined the
crime scene, collected evidence, attempted to reconstruct the aircraft, and
formed theories as to what happened.

After days of investigation, Hahn and the FAA representatives concluded as
follows: A small explosive device functioned on the aircraft beneath a seat over
the wing. This explosion breached certain portions of the aircraft and caused a
fire and a second explosion described as a fuel-air explosion, which blew the
aircraft apart and sent it to the ground in pieces.

On December 6, 1989, while Hahn was still in Colombia investigating the
Avianca crash, a Colombian government building (the DAS Building) was
bombed. Later that day Hahn went to the scene of the DAS explosion to offer
his assistance. He examined the damage there and took soil samples in which
no explosives residues were found.

B. The Laboratory Analysis

Hahn sent samples of evidence from the Avianca crime scene to the FBI
Laboratory. Once the samples arrived, an EU technician catalogued the
evidence and sent it to various units in the Laboratory for examination.
Whitehurst, as an examiner in the MAU, was asked to examine various items
for explosives residues. Edward Bender, the technician then assigned to
Whitehurst, received and analyzed this evidence. As was customary in the
Laboratory, Bender ran the instrumental analysis and reported the results to
Whitehurst. Whitehurst's role as an examiner was to review and draw
conclusions from the data provided by the technician.
In January 1990 Whitehurst identified RDX and PETN high explosives on a
specimen from a portion of the aircraft. He wrote a report (dictation), which
was approved by MAU Chief James Corby and was sent to Hahn who included
it verbatim in one of his two reports. In his other report Hahn noted that a
portion of the aircraft skin bore pitting and cratering unique to high explosives.
Hahn concluded that an explosive device with a relatively small amount of high
explosives functioned on board the aircraft, causing a breach of the fuselage
and other parts of the aircraft, a fire, and a fuel-air explosion that caused the
aircraft to break apart.

C. The Confessor

In the spring of 1994, on the eve of the first Munoz trial, the Attorney General
of Colombia wrote a letter to the District Court Judge in the case and stated that
the wrong person was charged in the Avianca case and that the responsible
person was in custody in Colombia and had confessed to the crime. In

interviews by an ATF agent in Colombia, the Confessor stated, among other
things, that he was responsible for making the bomb that destroyed Avianca
Flight 203 and that the explosive consisted of 5 kilograms of an ammonium
based gelatin dynamite. The Confessor claimed that this dynamite was the same
explosive used at the DAS Building.

The Munoz prosecutor sought Hahn's advice regarding this development.
According to a memorandum Hahn wrote in 1995, he advised the prosecutor
[in 1994] that neither was the damage to the aircraft consistent with dynamite,
based on the pitting and cratering that was present on the fuselage, nor was the
damage consistent with the functioning of a single dynamite device of five
kilos in size. Hahn added that his opinion was supported by the finding of
residues RDX and PETN and the lack of residues consistent with a dynamite.

On June 4, 1994, Hahn telephoned Whitehurst to tell him that he (Whitehurst)
might be called as a witness to rebut the claims of the Confessor, which Hahn
described. According to Whitehurst, Hahn asked whether Whitehurst could
discredit the Confessor's story based on the residue analysis. According to
Hahn, he asked Whitehurst, [C]an you say, from your material analysis,
whether or not this might have been an ammonia gel dynamite or not.

During the June 4, 1994, conversation, Hahn told Whitehurst that Hahn
believed the pitting and cratering on the evidence was indicative of an
explosive with a VOD of 20,000 feet per second. Whitehurst responded that
there are ammonia-gel dynamites capable of detonation velocities of
approximately 20,000 feet per second and that therefore the damage may have
been possible from such a dynamite. Hahn dismissed Whitehurst's views
because Whitehurst was not at the crime scene or aircraft reconstruction and
because explosives damage assessment is outside Whitehurst's expertise. Hahn
did not ask Whitehurst to prepare any documents regarding his analysis of the
Confessor's statement. On June 6th Hahn faxed Whitehurst a copy of one of the
Confessor's statements.

D. The Whitehurst Memorandum

On June 7, 1994, Whitehurst prepared a memorandum to Corby (the
Whitehurst Memorandum) relating to whether the FBI could scientifically
disprove the Confessor's story. The following day Whitehurst delivered to
Corby the memorandum with technical papers that Whitehurst claimed
supported his views. Whitehurst stated in the memorandum that he could not
disprove the use of an ammonium gel dynamite and that in fact the data is
consistent with the use of an ammonium nitrate based high explosive. The
memorandum asserted that the pitting and cratering did not rule out the use of a
gelatin dynamite, citing the attached literature. Whitehurst also raised questions
concerning possible contamination that would affect the significance of his
previous findings of PETN and RDX.

Corby reviewed the memorandum overnight, and on June 9, 1994, according to
Whitehurst, Corby told him to quickly provide Whitehurst's assessment to the
prosecutor. Corby stated that he did not authorize Whitehurst to send the
memorandum itself directly to the prosecutor, only to provide the information
in the memorandum to the prosecutor. On June 9, 1994, Whitehurst gave the
memorandum to an agent on the case (Dwight Dennett) to give to the
prosecutor. Dennett delivered the document as promised. Whitehurst did not
send a copy of the memorandum to Hahn or discuss this memorandum with
him prior to sending it to the prosecutor.

On June 14, 1994, Whitehurst received a note from Corby stating that AUSA
Pollak wanted to talk to him. Whitehurst called Pollak, who was angry. They
discussed the memorandum. According to Whitehurst, Pollak explained the
concept of Brady material and told Whitehurst that now she would have to turn
the information over to the defense. At about the same time, Pollak also told
Hahn that she would have to disclose the memorandum to the defense under
Brady. Although Hahn later assumed the Whitehurst Memorandum was
disclosed to the defense, it is unclear whether in fact disclosure was made. The
prosecutors did not contact Whitehurst further regarding this case.

E. The Trials

Hahn testified in the first Munoz trial on June 7, 1994. This was two days
before Whitehurst gave his memorandum to Dennett, and thus Hahn did not
have the memorandum when he testified. Among other things, Hahn testified to
his opinion as to how the initial and secondary explosions occurred on the
aircraft and related the conclusions regarding RDX and PETN as set forth in
Whitehurst's dictation. Hahn also gave testimony that tended to contradict the
Confessor's story by asserting that the damage to the aircraft indicated the use
of a fast-moving explosive like RDX or PETN while the damage to the DAS
Building indicated a slower-moving explosive like dynamite.

On June 14, 1994, Hahn received a copy of the Whitehurst Memorandum from
Pollak. He then sent a copy to his former unit chief, J. Christopher Ronay, and
discussed the matter with him. Between the two trials, SAS Chief James
Kearney, MAU Chief Corby, and Ronay addressed the issues raised by
Whitehurst's Memorandum but made no communication to Hahn regarding any
resolution of the controversy. Hahn, therefore, proceeded to the second trial
with no guidance from management about how to testify in light of the views
expressed in the Whitehurst Memorandum.

On November 22, 1994, during the second trial, Hahn repeated essentially the
same testimony he gave in the first trial. No mention was made of any of the
opinions discussed in the Whitehurst Memorandum.
III. Analysis

A. Hahn's Testimony

1. Contradiction of Confessor, Pitting and Cratering

In both trials Hahn opined that the pitting and cratering on the fuselage of the
aircraft was caused by an extremely or very high explosive but that the DAS
Building was damaged by a slower-moving explosive such as dynamite. This
testimony contradicted the Confessor's story that the same explosive--a
dynamite--was used at the DAS Building and on the aircraft. We conclude that
Hahn's opinions correlating the pitting and cratering to a high velocity
explosive were unsound and not justified by his experience or by the scientific
literature. Although a high velocity explosive may have been used on the
aircraft, Hahn's opinions at the trials regarding pitting and cratering were
flawed.

a. Trial Testimony

In the first trial, Hahn testified that an extremely high explosive caused the
pitting and cratering on the aircraft, that RDX and PETN are explosives in that
category, that no dynamite could have caused that damage, and that the damage
at the DAS Building was indicative of a heaving explosive such as dynamite
and not a brisant explosive like RDX or PETN. Hahn further testified that by
extremely high explosive he meant the ones that do travel at 22, 24 thousand
feet per second. Hahn was certain that this testimony contrasting dynamite with
RDX and PETN was elicited to anticipate and contradict the Confessor's story
should it be introduced by the defense. A defense based on the Confessor,
however, was not interposed in either trial.

In the second trial Hahn testified that the pitting and cratering on the fuselage
was caused by a very high explosive here functioning in the area of 20,000 feet
per second. Regarding the damage at the DAS Building, he testified:

It indicated to me that again the explosive that was used here,
unlike the explosive device or an explosive that would cause
pitting and cratering, this was a much slower moving explosive.
This was going to be like a dynamite or ammonia-base type
nitrate explosive that would have a long period heaving effect, if
you will.

b. Validity of Hahn's
Correlation of the
Pitting to a VOD Range

In the first trial, Hahn testified that no dynamite could have caused the pitting
and cratering on the aircraft. This testimony was clearly erroneous even under
Hahn's own theories, since Hahn firmly maintains that the pitting was caused
by an explosive with a VOD of about 20,000 feet per second and he testified at
the first trial and the OIG interviews that some dynamites have a VOD in that
range.
Taken literally, Hahn's testimony in the second trial indicated that he believed
the phenomenon of pitting and cratering can only occur with a very high
explosive --that is, an explosive with a VOD of about 20,000 feet per second or
more. This is implied from his testimony that the damage at the DAS Building
was indicative of an explosive such as a dynamite rather than an explosive that
would cause pitting and cratering. Hahn told us in his first interview that at the
time of the Munoz trials he had only experienced pitting and cratering with
explosives having a VOD of at least 20,000 feet per second and believed that
pitting and cratering would only occur with such explosives. Hahn's
experience, however, was, at best, incomplete. In fact, pitting and cratering can
be achieved with some high explosives with a VOD as low as 10,000 feet per
second. Most dynamites have a VOD in excess of 10,000 feet per second.

In a letter after his first OIG interview and in a second interview, Hahn insisted
that his testimony should not be taken literally. He maintained that when he
said the explosive at the DAS Building was not the type of explosive that
would cause pitting and cratering, he meant it was not the type of explosive that
would cause the distinctive pitting and cratering on the Avianca aircraft. The
pits on the aircraft had diameters of about one-eighth to one-quarter inch. By
contrast, the pitting and cratering discussed in the articles attached to the
Whitehurst Memorandum contained much smaller pits (.1 to .5 millimeters). To
Hahn the size of the pits on the Avianca aircraft indicated a VOD of about
20,000 feet per second or more. Hahn insisted that it was this type of pitting
and cratering ( the large pits ) that he was referring to in his trial testimony.

Hahn believed that large pits, as in the Avianca case, are indicative of a VOD
of about 20,000 feet per second or more because he had never seen pitting of
that size or anything closely resembling that except with explosives in the range
of 20,000 ft/second detonation velocity. Hahn has seen such pitting in his tests
of shaped charges at the FBI range. In these tests Hahn used explosives with a
VOD of at least 20,000 feet per second. Hahn theorized that the pitting on the
Avianca aircraft was caused by jetting resulting from a deformation on the
explosive's surface that was, in effect, a small shaped charge. See also Hahn
OIG Interview: I speculated far enough to say, there had to be some
imperfection in this explosive charge to cause this shape, to form this jet.

Hahn admitted, however, that in his tests with shaped charges at the range he
had never seen such pitting at all except when he was trying to deliberately
achieve that effect with a shaped charge that was lined (e.g., with an old vehicle
headlight) and that he had never experimented with shaped explosives with a
VOD less than 20,000 feet per second. Based on this experience, therefore,
Hahn was unqualified to say whether it was the shaping, the fragmentation
from the lining, or the high velocity, or some combination of these elements,
that was necessary to produce the large pits.

Moreover, the pitting here was found on aircraft aluminum, and Hahn had no
experience using aircraft aluminum as a target material with any type of
explosive. Hahn acknowledged that pitting would occur more readily on
aircraft aluminum than on steel, which Hahn used in his tests.

Hahn assumed that the perpetrators of the Avianca blast did not take the time to
create an intentionally shaped charge. Hahn's tests at the FBI range, in which he
obtained pitting similar to Avianca's, involved lined, intentionally shaped
charges and targets of steel, which had little connection to the scenario he
posited in the Avianca case--an explosive not intentionally shaped with a target
of aircraft aluminum.

Hahn theorized that the jetting that caused the large pits on the aircraft came
from random imperfections at the surface of the explosive. Hahn
acknowledged, however, that he has no experience, documentation, or anything
that validates the proposition that such pits can be created from accidental
imperfections on the explosive.

Additionally, Hahn admitted at one point in the OIG interviews that the pitting
and cratering in this case is merely consistent with an explosive with a VOD of
at least 20,000 feet per second. He stated that, because we don't have the
experimental data, he cannot exclu[de] other explosives.

Accordingly, for all these reasons, we conclude that Hahn's experience was
inadequate to support his opinion that the large pits found on the aircraft
aluminum in this case were necessarily caused by an extremely or very high
explosive with a VOD of at least 20,000 feet per second.

Hahn's correlation of the pitting to a VOD range was not based on his
experience but was a speculative extrapolation from his experience. This
speculation was based on Hahn's understanding of the science of pitting and
cratering (his jetting theory). Hahn admitted, however, that the science of
pitting and cratering is beyond his expertise: I'm not qualified to talk to you
about exactly how this process functions. I'm not even sure that the scientific
community knows exactly what goes on here, to be honest with you. Hahn was
qualified to render opinions based only on his experience, which did not justify
his attempt to correlate the pitting with the VOD of the explosive.

Hahn asserted that he relied on his jetting theory because I don't know how else
you would get that damage. That Hahn could conceive of no other theory,
however, did not make his jetting theory valid.

Finally, Hahn's recent involvement in the Oklahoma City case has broadened
his experience. The pitting in that case is similar in size to the pitting in the

Avianca case, although the VOD of the explosive in Oklahoma City, according
to Hahn, is significantly below 20,000 feet per second. Given the Oklahoma
City case, Hahn acknowledged that big pits can be obtained from an explosive
with a VOD substantially less than 20,000 feet per second. Based on the
Oklahoma City case and our own experience, we conclude that there is no
scientific basis for correlating large pits, as in the Avianca and Oklahoma City
cases, with a VOD of about 20,000 feet per second or more.
c. Other Theories in Support of Hahn's VOD Opinion

Hahn also told us that his opinion that the explosive had a VOD of at least
20,000 feet per second rested on two factors in addition to the pitting and
cratering: (1) the shattering of an I-beam on the aircraft showing that the
explosive was very brisant and (2) the short amount of time the gas jet would
have had to cause the pitting before the explosive shock wave and the
depressurization of the cabin pushed the fuselage away. This explanation is
problematic for three reasons. First, Hahn's VOD opinions at the trials only
relied on the pitting and cratering. Second, the evidence that the I-beam in fact
was shattered by the explosive is weak. All that one can say with certainty is
that a portion of the I-beam, like many other portions of the aircraft, was
missing. Hahn made no scientific comparison between (1) the ends of the Ibeam that were adjacent to the missing piece and (2) the ends of other items
adjacent to missing pieces, to determine whether the breakage of the I-beam
was necessarily from a brisant explosive. Further, in the opinion of Walter
Korsgaard, the FAA expert who investigated the Avianca crash, the wing box
that contained the I-beam was violated after the second (fuel-air) explosion.
Third, regardless of the VOD of the explosive, a gas jet will precede the shock
wave and hit the target before the shock wave pushes it away. Hahn made no
calculations of the difference in speed between a jet from an explosive with a
VOD of 20,000 feet per second and a jet from an explosive with a VOD of, say,
16,000 feet per second. Needless to say, jets from either explosive would travel
extraordinarily fast. Hahn has no scientific basis for concluding that the
depressurization of the cabin would have pushed the fuselage away before it
could have been hit by a jet from an explosive with a VOD below 20,000 feet
per second.

On January 8, 1997, an attorney representing Hahn submitted a letter arguing,
among other things, that, quite apart from the pitting and cratering, Hahn's

VOD opinion was reasonable in light of (1) the shattering of the I-beam and (2)
the detection of residue of RDX and PETN. The letter asserts that these two
factors, taken together, alone establish the reasonableness of Agent Hahn's
conclusion. (Emphasis in original). Again, this justification is not the one Hahn
used in his trial testimony, in which he asserted that the pitting established the
explosive's VOD. In any event, as discussed in the preceding paragraph, the
evidence that the I-beam was shattered in such a way as to show high brisance
is weak. As to the second factor, if the explosive device on the aircraft used
RDX and PETN as the explosive main charge, then by definition the main
charge would have had a VOD in excess of 20,000 feet per second since the
VODs of RDX, PETN, and Semtex (which combines RDX and PETN) exceed
23,900 feet per second. The residue evidence does indicate that the main charge
may have consisted of RDX and PETN and that therefore the VOD of the main
charge may have exceeded 23,900 feet per second. Had Hahn so testified, his
testimony would have been reasonable, but he testified to something else. The
problem with Hahn's testimony was that he correlated the pitting to a particular
VOD range. That testimony was scientifically unsound and not justified by
Hahn's experience, regardless of what the residue evidence may have shown.

d. Hahn's Rejection of the Whitehurst Literature

On June 14, 1994--a few days after his testimony in the first trial and 5 months
before his testimony in the second trial--Hahn received the Whitehurst
Memorandum with its attached scientific literature. One of the attached articles
indicated that pitting and cratering could be achieved on aircraft aluminum with
a 40% Forcite gelatin dynamite. Although Hahn assumed in 1994 that this
dynamite had a VOD of 20,000 feet per second, in fact its VOD is about 13,800
feet per second.

Hahn told us that he ignored the literature when he testified in the second trial,
because the pitting depicted in the literature (pits with a diameter of .1 to .5
millimeters) was vastly different in dimension from the pitting in the Avianca
case (pits with a diameter of 1/8 to 1/4 inch). Hahn stated in his interview that
[u]ntil such time as I saw Mr. Whitehurst's paper, I never paid attention to,
looked for, [or] was even aware of this sort of microscopic pitting and cratering
that that paper refers to.

The literature also discussed how pitting and cratering is caused. One article
(by H. P. Tardif and another author) stated:

This phenomenon can be produced by two separate mechanisms.
The first is due to the shaped charge effect caused by tiny
imperfections at the surface of the charge. These imperfections,
such as holes and cavities, collapse to form extremely high
velocity jets of gases which impinge on the surface to form small
crater-like pits. The second appears to be caused by the high
velocity impact of small amounts of unconsumed explosive with a
nearby surface or by friable extraneous material placed between
the charge and the nearby surface.

A second article (by D. G. Higgs and T. S. Hayes) stated: It is thought that the
pits are caused by the impingement of high velocity particles of partially
combusted explosive and/or fused extraneous matter encountered between the
explosive charge and the witness' material.

The Tardif and Higgs explanations differed from Hahn's jetting theory in two
respects. First, Hahn believed that pitting was derived from gas jets. Both
articles, however, provide another mechanism for pitting--namely, the
impingement of particles of unconsumed explosive or extraneous matter placed
between the explosive and the target. Second, the Tardif article does include as
one mechanism Hahn's theory that pits can be caused by jets formed from
imperfections at the surface of the explosive. But Tardif states that these pits
will be small, presumably within the size range discussed in the article (.1 to .5
millimeters). The Tardif article thus at least raises the question whether Hahn's
jetting theory can account for the large pits on the Avianca aircraft.

After Hahn received the Whitehurst memorandum and the attached scientific
literature, he made no inquiries before the second trial concerning the
soundness of his theories regarding pitting and cratering. Because Hahn was

unfamiliar with microscopic pitting and had no experience with pitting on
aircraft aluminum and because the articles raised questions concerning the
validity of his jetting theory, we conclude that Hahn erred when he failed to
look into these matters before he testified in the second trial.

2. Hahn's Testimony About the
Results of Whitehurst's Examination

Whitehurst contends that in both trials Hahn gave inappropriate testimony
regarding the findings of RDX and PETN, because Hahn failed to mention the
conclusions set forth in the Whitehurst Memorandum. We conclude that Hahn's
testimony in the first trial was unobjectionable but that his testimony in the
second trial was incomplete. Further, we conclude that SAS Chief James
Kearney contributed to Hahn's incomplete testimony by not properly resolving
the issues raised by the Whitehurst Memorandum. As discussed in Section B,
infra, however, the Whitehurst Memorandum was a deeply flawed document.
Accordingly, the impact of Hahn's failure to mention the opinions in the
document may have been insignificant.

a. Background

In 1990 Whitehurst submitted AE dictation in which he identified the presence
of RDX and PETN high explosive[s] on a specimen consisting of a piece of the
rubber fuel bladder Hahn had cut from the Avianca wreckage in Colombia. The
dictation contained no other findings on any specimen. The instrumental
analyses upon which Whitehurst based his conclusions were performed by a
technician, Edward Bender.

On June 8, 1994, the Whitehurst Memorandum was submitted to Corby. In the
memorandum, Whitehurst reviewed this matter and offered opinions that
supplemented or questioned his 1990 dictation. Whitehurst stated: It is my
opinion at this time that the data we acquired from analysis of the evidence

provided to us in this matter does not disprove the use of an ammonium nitrate
based high explosive and in fact is consistent with but not proof of the use of
such an explosive. Regarding his 1990 chemical analysis that detected PETN
and RDX, Whitehurst stated that [a] number of questions [about possible
contamination] need to be answered before we can determine the significance
of that data. He then listed a series of questions concerning possible
contamination at the crime scene, during transportation of the evidence, and
during the processing of the evidence at the Laboratory. He further opined that
[t]he upshot of all of this is that the data we have at this time cannot be used to
successfully disprove the statement that a gelatin dynamite was used in this
bombing.

On June 14, 1994, a week after he testified in the first trial, Hahn received the
Whitehurst Memorandum. He discussed the memorandum with EU Chief
Ronay and sent Ronay a copy of the memorandum on June 14, 1994. On June
16, 1994, Ronay sent a memorandum to SAS Chief Kearney regarding the
Whitehurst Memorandum, which he attached. On June 22, 1994, Hahn also
sent Kearney a memorandum. Shortly after receiving Ronay's memorandum,
Kearney sent a list of questions to Corby about the events surrounding the
Whitehurst Memorandum and its dissemination to Pollak. Corby responded to
Kearney's questions in writing on July 6, 1994. Corby supported many of
Whitehurst's opinions.

Kearney told us he thought both Hahn and Whitehurst should have testified at
the trials. However, neither Kearney, Ronay, nor any other supervisor advised
Hahn on how he should deal with the Whitehurst Memorandum in his
testimony at the second trial.

Hahn regarded the Whitehurst Memorandum as a rejection of his [Whitehurst's]
own scientific findings. Hahn stated, In this case, Mr. Whitehurst has, in
writing, offered an opinion contrary to his own scientific findings.
Nevertheless, on November 22, 1994, Hahn testified in the second Munoz trial
that in 1990 he submitted pieces of the aircraft and swabbings to

the Materials Analysis Unit of the F.B.I. laboratory to try -- who
specialize in looking for explosives residue to try to determine
what explosive was used here.

Q. What were the results of those tests?

A. The results were although they found no residue that they
could identify here on this piece, or any other piece, except a
piece of the fuel bladder, and on that piece of fuel bladder taken
from the area right immediately underneath the blast, they found
residue of two explosives, Research Development Explosive,
RDX, which is again a very fast brisant explosive; and PETN, or
Penta-erithrit[o]l tetranitrate. . . .

In his testimony Hahn made no mention of anything in the Whitehurst
Memorandum.

Hahn maintains that he properly ignored the Whitehurst Memorandum in his
testimony for the following reasons:

What he says in the letter [referring to the Whitehurst
Memorandum] is not based on any sort of analysis. What he says
in the letter is based on speculation, it's not the results of his
material analysis.

I mean, Fred does nothing in that letter [but] speculate as to what
could have been or what might have been or what may have
occurred. His scientific analysis, his instrumental analysis that he
conducts, still remains that the results were PETN and RDX.

Furthermore, I spoke to Bender, who actually conducted it, who,
again, was completely comfortable with those results, felt they
could be relied upon. Why should I not rely on them.
Further, Hahn told us that he answered the questions raised by Whitehurst
regarding contamination and assured himself that there was no contamination
of the evidence. Finally, Hahn relied on his belief that the defense had a copy
of the Whitehurst Memorandum so that the defendant could call Whitehurst as
a witness to elicit any of the information in the memorandum.

b. Discussion

(1) Hahn

Because Hahn was unaware of the Whitehurst Memorandum when he testified
in the first trial, he cannot be faulted for failing to include it in his testimony.

Regarding Hahn's testimony in the second trial, Whitehurst alleges that Hahn
committed perjury by reciting the MAU results without supplementing or
amending them with the information in the Whitehurst Memorandum.
Although we find no perjury, we conclude that the testimony was incomplete.

When one Laboratory examiner testifies to the results or conclusions of another
examiner, the testifying examiner has a duty to report the results accurately and
completely--whether he agrees or disagrees with his colleague's opinions.
Although in 1990 Whitehurst concluded that RDX and PETN were on the fuel
bladder and that, according to his dictation, he reached no other conclusions
regarding explosives residue, Whitehurst stated in 1994 that he reached
additional conclusions from a review of the data. It was beyond Hahn's
expertise as an EU examiner, and beyond his discretion as a witness purporting
to recite the results of another examiner, to selectively omit the 1994
conclusions because Hahn thought they were speculative or otherwise

meritless. What was requested of Hahn on the witness stand was not his
evaluation of Whitehurst's conclusions but merely a factual restatement of
them. When Hahn was asked to state the MAU results, a complete answer
would have been that the MAU chemist found RDX and PETN in 1990 but on
a further review in 1994 also found that the data did not prove but was
consistent with an ammonium nitrate explosive and thought that the
significance of the data for RDX and PETN could not be determined without
answering certain questions about contamination. Since Hahn believed that in
1994 Whitehurst reject[ed] the scientific findings made in 1990, Hahn's
testimony about the 1990 findings was potentially misleading without the
caveat that the author of the 1990 findings now had misgivings and additional
findings.

We recognize that Whitehurst neither withdrew the original dictation nor
submitted a supplemental dictation. Nor do we consider the Whitehurst
Memorandum a complete rejection of Whitehurst's dictation. Nevertheless,
when Hahn testified in the second trial, Hahn was aware that Whitehurst had
reached additional conclusions supplementing those reflected in his 1990
dictation. To ignore the Whitehurst Memorandum because it lacked the form of
a supplemental dictation would be an elevation of format over substance. At a
minimum, Hahn had an affirmative duty to obtain explicit permission from a
supervisor before he omitted reference to the Whitehurst Memorandum,
because such omission was potentially incomplete and misleading. He failed to
obtain such supervisory approval.

That Bender was comfortable with the original dictation is immaterial. Bender
was a technician. Whitehurst, as the examiner, was responsible for the MAU
results and conclusions. Moreover, all Bender could say was that the
instrumental results were accurate--something Whitehurst never disputed. The
Whitehurst Memorandum concerned additional conclusions concerning an
ammonium nitrate explosive and the significance of the instrumental results-matters on which Bender was unqualified to comment.

Similarly, that Hahn believed there was no contamination did not justify
omitting language Whitehurst used to qualify his conclusions.

Finally, that the defense may have had the Whitehurst Memorandum does not
mean Hahn could ignore it in his testimony. Regardless of what the defense
possesses, an examiner has a duty to present accurate testimony. By not
testifying to the information in the memorandum, Hahn gave testimony that
was incomplete. Moreover, Hahn did not know for a fact that the memorandum
was disclosed. Although Hahn told us I'm certain the prosecutor gave the
memorandum to the defense, he also told us, So, I mean, I don't really know,
but I imagine that [Cheryl Pollak, the prosecutor] recognized that it was
incumbent upon her to provide it [to the defense] and she discharged her duties.
I have no reason to presume otherwise.

When one examiner testifies to another examiner's conclusions, the testifying
examiner is only a messenger. He has no discretion to omit language
supplementing or qualifying the conclusions, even if he believes the language is
speculative or groundless. We recognize that Hahn was presented with a very
unusual and difficult situation and that he received no guidance from his
supervisors. We nevertheless conclude that he had an affirmative duty to
resolve the controversy before he gave potentially incomplete and misleading
testimony and that he therefore erred when he testified, without explicit
supervisory approval, as though the Whitehurst Memorandum did not exist.

(2) Kearney

Although Hahn erred in his testimony, Kearney contributed to that error.
Kearney told us he believed that the Whitehurst Memorandum would not affect
the Laboratory results or Hahn's testimony. Yet Kearney recognized that in the
memorandum Whitehurst was attempting to qualify his initial results, and
Kearney thought that Whitehurst should have testified to his examination and
results at trial. Had Whitehurst testified, the qualif[ications] to his initial results
would have been put before the jury. Yet Kearney took no action either to
cause Whitehurst to testify in the second trial or to tell Hahn to include the
qualif[ications] in his own testimony if Hahn was asked to restate Whitehurst's
conclusions.

Moreover, Corby supported much of Whitehurst's analysis, but we can detect
no steps taken by Kearney to consult with other qualified experts to resolve the
scientific issues. Without further review of the technical and scientific issues
that had been raised, we do not see a valid basis for Kearney's decision to
dismiss the concerns raised by the Whitehurst Memorandum.

One example of a scientific issue in the memorandum that Kearney dismissed
without proper consideration related to Whitehurst's observations concerning
the VOD necessary to cause pitting and cratering. Despite Corby's support for
Whitehurst's position, Kearney apparently rejected Whitehurst's position
without thorough scientific research and analysis.

The most glaring mistake made by Kearney was his failure to communicate to
Hahn or Whitehurst, and document, any decisions he did make. Whitehurst
waited but was never called as a witness in the first trial. He was not even
informed of the second trial. Hahn heard nothing regarding his complaints
about the memorandum and thus proceeded to the second trial with no further
guidance on how to handle any questioning on this topic. If the memorandum
had been turned over to the defense, questions regarding it were certainly
possible at the second trial. Kearney should have informed Hahn of his
reasoning in dismissing the concerns in the memorandum so that Hahn could be
prepared to respond to defense questions. Instead, management left Hahn and
Whitehurst totally unprepared for the embarrassing situation in which they
might be forced to take the stand and contradict each other.

In sum, we conclude that Kearney erred in not properly resolving the issues
raised by the Whitehurst Memorandum and not communicating his decisions to
Hahn and Whitehurst.

3. Secondary Explosion

Hahn testified in both trials that, after the explosive device was detonated on
the Avianca aircraft, a fire started resulting in a secondary explosion, which he
described as a fuel-air explosion, that destroyed the aircraft. In the first trial he
stated that we reached the conclusion as to what happened. By implication, this
meant that Hahn reached the conclusion in consultation with the FAA and
NTSB representatives at the crime scene. In contrast, in the second trial Hahn
stated that the scenario he described was my conclusion. This statement of the
conclusion is problematic because Hahn is not an expert in fuel-air explosions.

When asked by the OIG what experience he had in linking particular damage
with the occurrence of a fuel-air explosion, Hahn stated, The FAA has
conducted experiments where they've done fires on board an aircraft fuselage
and have had areas of flashover, and I've seen videos of that. And other than
that, and being aware of fuel-air explosions, I don't have any experience. Hahn
further explained that he based his testimony on other experts and things that he
had read about fuel-air explosions. Hahn readily admitted to the OIG that he
was not an expert in fuel-air explosions.

We find Hahn's testimony in the second trial regarding fuel-air explosions to be
beyond his own experience and expertise. As proof of his lack of expertise, we
cite the fact that Hahn interchangeably refers to the secondary explosion as a
fuel-air explosion or a flash fire. These two phenomena are not the same, and
Hahn's use of the two descriptions interchangeably is incorrect. Hahn admitted
that he was using the two words to mean the same thing; however, he clarified
that what he was really talking about was a flashover or the point at which
matter suddenly burns explosively. This distinction was not made in his
testimony at trial.

Walter Korsgaard was the FAA representative who investigated the Avianca
crash; he is an expert on fuel-air explosions on aircraft. Like Hahn, Korsgaard
concluded that a fuel-air explosion occurred on the Avianca flight. Korsgaard's
opinion as to what happened, however, differed from Hahn's in certain respects.
Korsgaard's report states:

Based on the above evidence and various eye witness accounts,
the following sequence of events can be developed:

-- [1] IED [improvised explosive device] detonates in area under
seat number 14F and frame station 783 on passenger cabin floor.

-- [2] Passenger cabin floor penetrated.

-- [3] Passenger cabin fuselage skin and top of center fuselage fuel
tank middle bladder section penetrated.

-- [4] Passenger cabin relatively slowly begins to decompress and
pressurize[d] center fuselage fuel tank.

-- [5] A fuel/air explosion and fuel ignition is initiated in top of
center fuselage fuel tank spreading rapidly thru [sic] vent holes to
right and left number 2 fuel tank wet wing sections and back into
passenger cabin as pressure in fuel tank exceeds cabin pressure.

-- [6] Structure integrity of center fuselage wing box section and
right and left wet wing fuel tank sections of number 2 fuel tank
bulkheads are violated.

-- [7] Fuel in wet wing fuel tanks numbers 1 and 2 is ignited.

-- [8] The APU [auxillary power unit] located at rear of center
fuselage wing box section is blown to rear of aircraft by the force
of the fuel/air explosion within this center section fuel tank.

Korsgaard continues the sequence of events by describing how the aircraft
broke up and came to the ground.

In the two trials and in his OIG interview, Hahn testified to a scenario different
from Korsgaard's. Hahn agreed with the first three events described by
Korsgaard: an IED detonated under seat 14F, breaching the center fuselage fuel
bladder tank and the side of the aircraft. Then their accounts diverge. Hahn
made no mention, as Korsgaard did (Event 4), that the passenger cabin
relatively slowly beg[an] to decompress and pressurizes center fuselage fuel
tank. In fact earlier in Hahn's testimony in the second trial he said that certain
aircraft damage indicated rapid depressurization of the cabin.

The next event, according to Korsgaard (Event 5), was that a fuel/air explosion
and fuel ignition is initiated in top of center fuselage fuel tank. According to
Hahn, on the other hand, the next event is a fire that burned dirty, throwing a
lot of hot gaseous material into the air, a lot of hot matter into the air.
According to Hahn, the fuel-air explosion did not come until later:

[W]hat I believe happened is that a small explosive device
functioned, breaching the aircraft, opening the side of the
fuselage, opening up the bladder box or the bladder fuel cells
inside the wing, blasted and started a fire.

That fire burned for a number of seconds, probably in the
neighborhood of a minute, at which point in time the hot gases
and hot particula[te] matter from that fire caused the secondary
explosion of fuel air explosion. That broke the aircraft apart.

Moreover, according to Hahn, the fuel-air explosion did not occur in the fuel
tank, as Korsgaard stated, but rather inside the fuselage (first trial). As Hahn
described it in his OIG interview:

So the fire [that was set off by the explosive device] is burning as
that fuel is venting and it's burning not only fuel, but it's going to
be burning carpeting and seat cushions and fabrics, rugs, whatever
is there on board that aircraft. . . . [E]ventually it reaches a point
where you have enough heat and hot gasses and hot flammable
gasses and particulate matter in the air where it flashes over, and
when it flashes over, the aircraft comes apart.

In the first trial and in the OIG interview, Hahn compared the fuel-air explosion
in Avianca to a fuel-air explosion in a grain elevator, in which small particulate
matter from the grain is suspended in the air. Korsgaard said nothing about
particulate matter from the interior of the cabin playing a role in the fuel-air
explosion.

Thus, Hahn's theory regarding a fuel-air explosion differed from Korsgaard's in
three principal respects. The first difference related to the sequence of events:
Korsgaard thought the event that followed the detonation of the IED was the
fuel-air explosion and the fire, whereas Hahn testified that the detonation led to
a fire that burned probably for about a minute and then the fuel-air explosion
occurred. The second difference related to the location of the fuel-air explosion:
the center fuel tank (Korsgaard) as opposed to the fuselage (Hahn). Finally,
Korsgaard did not say, as Hahn did, that particulate matter played a role in the
explosion.

Because Hahn is not an expert in fuel-air explosions, he should have simply
testified to the opinion of Korsgaard (or to the opinion of another qualified
expert)--with an attribution and without embellishment. Hahn ventured beyond

his expertise when he developed and testified to his own theory of a fuel-air
explosion.
4. Injuries to Passengers

Hahn testified in both trials that certain injuries observed on the passengers'
bodies--hard, burnt skin and skulls that had been cracked open--supported his
theory of a secondary explosion. In the first trial he stated that these injuries
were consistent with extreme heat, flash-fire type of damage. In the second trial
he stated the injuries were consistent with a flash fire or a fuel-air explosion.
We conclude that this testimony was beyond Hahn's expertise and was
incorrect.

Hahn told us that he drew the connection between these injuries and the flash
fire because the only other place he had heard of the same type of injuries was
in lectures regarding a flash fire at Dupont Plaza in Puerto Rico. He also told us
that he was familiar with the subject matter because he attended lectures on fire
damage by a former agent where this was discussed and had read articles about
these same types of injuries and their causes. We conclude that this experience
was inadequate to make him an expert on the relationship between the injuries
and an explosion.

In fact, the injuries are not consistent with a flash fire or fuel-air explosion,
which are of short duration. Rather, the injuries indicate that the bodies were
subjected to substantial heat for a significant period of time. When we pressed
Hahn on this point, he acknowledged that the injuries to the bodies did not
justify the opinion that a fuel-air explosion occurred but rather that there was a
hot fire burning for a continuous period of time. Hahn admitted that it might
have been more accurate for him to say that the injuries to the bodies were
consistent with his theory of how the fuel-air explosion came about--that is,
that there was a preexisting condition (the continuous hot fire) which could
have led to a fuel-air explosion. As Hahn also admitted, however, this
preexisting condition would not always result in a fuel-air explosion, and a
fuel-air explosion would not always require a fire such as the one he believed
occurred in this case. Essentially, the injuries to the bodies told Hahn nothing
about whether a fuel-air explosion occurred; they only told him that an intense

fire burned for a period of time. This is quite different from his testimony that
the injuries to the bodies were consistent with a flash fire or fuel-air explosion.

Hahn told us he thought he could render opinions about matters if I know more
than a layman, which is your test of whether or not you're an expert. He also
stated that if I know the answer it would be permissible for him to respond to
questions outside his expertise. As exemplified by this case, Hahn's views are
incorrect and dangerous. All educated laymen are not experts. That a witness
thinks he knows the answer to a question does not mean he does. To assure that
erroneous and unreliable information is not presented in court, a Laboratory
examiner must only answer questions within his expertise.

In sum, we conclude that Hahn's testimony about the injuries was misleading,
inaccurate, and outside his area of expertise. We further conclude that he
improperly used this testimony to support his theory of a fuel-air explosion.
5. Other Allegations

Concerning Hahn's testimony, Whitehurst makes numerous other allegations,
which we will address summarily. Because Whitehurst makes the same basic
criticisms to Hahn's testimony in both trials, the references below are to the
second trial unless otherwise noted.

a. Whitehurst contends that Hahn misstated his qualifications and background.
We conclude that only one contention has merit. Hahn was not required to
volunteer his major in college (English), and, when Hahn testified to his
participation in scores of bombing cases, he was not required to volunteer the
percentage relating to aircraft explosions.

Hahn also testified that [m]y experience includes being called upon to do crime
scene processing and make assessments of such notable causes of explosives
[sic] in criminal cases such as Pan Am 103 over Lockerbie, Scotland and the

World Trade Center in New York. This testimony overstated Hahn's
experience. In the Pan Am 103 case, Hahn's only involvement in explosive
assessments was that he examined the passengers' personal effects for blast
damage. In the Trade Center case, Hahn's role was limited to management of
the crime scene and did not include analysis of the evidence.

b. During his testimony Hahn was shown numerous photographs (most of
which he took) of the aircraft wreckage and debris and a diagram of the
aircraft, and he was asked to state his observations. Regarding one photograph
he stated that on the inside wall of this fuselage is where we actually found
charring and heat damage, which told us that, again, this side of the aircraft
from the outside was not on fire, but inside smoke was filling out, circulating
throughout the fuselage, and heating up terribly, melting down things on the
inside of the aircraft on the left-hand side. (Emphasis added.) Although Hahn
may not be an expert on fire damage to aircraft, his testimony here implicitly
meant that the other experts at the scene, who do have expertise on this subject,
participated in the assessment. Accordingly, we do not fault this testimony.

Regarding another photograph Hahn testified:

That is a wing of the aircraft and it show[s] very severe fire
damage. That fire damage is very evident here (indicating) where
you see this white area on the far right-handside of the
photograph, but that is actually where the aluminum has become
oxidized from the heat. Cooked, if you will, almost to a boiling
point.

We conclude that this testimony exceeded Hahn's expertise and was inaccurate.
Hahn had no expertise in the oxidation of aluminum. Without a scientific
examination of the white area, Hahn could not say categorically that it was the
result of oxidation. In his OIG interview Hahn told us that the oxidation would
not occur just from heat, as he testified at trial, but from the burning process in
the presence of air (oxygen). Hahn had no scientific basis for saying that the
aluminum was [c]ooked . . . almost to a boiling point.

Regarding the diagram and other photographs, Hahn commented on the
structure of the aircraft. Kearney felt Hahn drifted outside his expertise on
some of this testimony. Some of Hahn's comments were merely descriptive,
requiring no special expertise ( debris at the crime scene, main landing gear ).
Other testimony, however, appears to require expertise that Hahn lacked
(position on aircraft of fuel tanks, position and function of wing box ). Also,
Hahn commented on what he perceived as non-explosive damage (deformation
of fuselage by depressurization of aircraft). In these examples, Hahn should
have made clear that he was basing his testimony on information received from
other experts. In contrast, regarding the lack of information from the voice data
recorder, Hahn testified that [w]e believe the lines were cut by the detonation of
the explosive device (emphasis added), implying that the assessment came, at
least in part, from the aircraft experts at the scene.

c. We reject Whitehurst's contention that an EU examiner such as Hahn,
because he is not a metallurgist, is unqualified to testify about his observations
of unique explosive damage such as pitting and cratering. Such observations
and conclusions are within a qualified EU examiner's expertise. Similarly,
Hahn was qualified to say that (1) a portion of the emergency exit was probably
in . . . many pieces because it was situated near the seat of the explosive device,
(2) certain damage was probably impact rather than explosive pitting, and (3)
the explosive pitting would occur within a certain distance of the explosive. We
do not consider the latter comment fabricate[d] testimony, as Whitehurst
claims.

d. We conclude that Hahn was beyond his expertise and inaccurate in his use of
certain terms (the gas causing pitting and cratering was in the form of a plasma,
the metal in the pits was crystallized, the explosive Semtex contains a butylene
binder). These terms were unnecessary to Hahn's presentation and should have
been avoided.

e. Contrary to Whitehurst's claims, Hahn, in our opinion, did not give
fabricate[d] explanations of brisant explosives and the functioning of a high
explosive ( [h]igh explosives function not by burning, but by molecular

breaking apart ). These were not unacceptable lay explanations for these
matters.

f. We find no fault with Hahn's testimony about the uses of PETN and RDX
and the composition of Semtex. In fact, these explanations track Whitehurst's
dictation. Similarly, Hahn's testimony that Semtex and C-4 are not, and
nitroglycerine is, impact sensitive was accurate.

g. Hahn testified as to how his duties differed from the duties of the NTSB and
FAA representatives, by saying that his assignment was to determine whether
an explosive device functioned on the aircraft and the duties of the others were
primarily to determine whether the crash resulted from a mechanical failure.
We think this testimony was slightly inaccurate. Needless to say, if it was
determined that the crash resulted from a criminal act, the FBI would have been
the exclusive agency of the United States to investigate the crime. But the
NTSB and FAA are, without limitation, mandated to determine the cause of the
crash, which would include an inquiry by them as to whether an explosive
device was used.

h. Whitehurst expressed concern that Hahn's testimony showed that his
presence at the DAS crime scene may have led to contamination of the Avianca
evidence. Hahn, however, told us that he had sent the Avianca evidence to the
Laboratory before the DAS Building was bombed.

i. In the first trial, after Hahn testified to the findings of RDX and PETN, he
was asked whether those chemicals would be found in any other part of the
plane other than an explosive device --in, for example, the seats or the paneling.
Hahn replied:

They are both extremely unstable molecules, as any explosive
would be. And they, in fact, they can break down with something

as simple as sunlight. You would not find them in the
environment, no.

This answer was partially inaccurate. Although RDX and PETN do not occur
naturally in the environment, they are not extremely unstable and would not
readily break down from sunlight under normal circumstances.

B. Whitehurst's Conduct

As explained below, we conclude that Whitehurst's conduct in this case was
deeply flawed in several respects.

1. Overload

On June 4, 1994, Hahn called Whitehurst about the Confessor. According to
Whitehurst, Hahn asked whether Whitehurst could discredit the Confessor's
claim that an ammonium nitrate gelatin dynamite was used on the aircraft. As
Whitehurst told Hahn on June 4th, and as Whitehurst acknowledged in his
memorandum, he would have expected to find residues of nitroglycerine (NG)
on the evidence if a dynamite had detonated on the aircraft. (NG is a primary
component of dynamite. See n.98, supra.) According to the Whitehurst
Memorandum, however, no residues of NG were found on the specimens
Whitehurst examined. Nevertheless, Whitehurst concluded in the memorandum
that he could not disprove the dynamite claim. One of the reasons for this
conclusion was that Whitehurst noticed in his 1994 review that the liquid
chromatography test (LC) for PETN was overloaded, which may have obscured
the presence of NG. Because, therefore, NG may have been present but not
detected due to the overload, Whitehurst asserted in the memorandum that he
could not eliminate the possibility of a dynamite.

What Whitehurst overlooked in his 1994 review, however, was that, in addition
to the LC test, a thin layer chromatography test (TLC) was conducted. The
TLC would have detected NG if present. It did not. A thorough review of the
file by Whitehurst would have revealed this information. When we confronted
Whitehurst with the TLC results, he admitted that he erred in not reviewing the
TLC data in 1994 and in concluding that due to the overload he could not
exclude the presence of NG. Thus, we fault Whitehurst for failing to conduct an
adequate review of his own file prior to issuing his memorandum, a review that
would have invalidated his theory that NG may have been present and was
obscured by the overload.

With respect to his original 1990 examination, we also fault Whitehurst for
failing to recognize the overload and run a second test.

2. Misstatement of the June 4th
Conversation and of the Pertinent
Issue

The Whitehurst Memorandum began with a summary of Whitehurst's June 4,
1994, conversation with Hahn about the Confessor. The summary, however,
misstates the conversation on a material point. According to the memorandum,
Hahn said in this conversation that the Confessor claimed to have used an
ammonium nitrate based explosive (emphasis added) and that the damage was
not consistent with an ANFO type explosive. (ANFO consists of ammonium
nitrate and fuel oil.) In fact, as Whitehurst acknowledged in his OIG interview,
Hahn said that the Confessor claimed to have used an ammonium nitrate based
dynamite. When Whitehurst wrote the memorandum, he, of course, knew the
claim concerned a dynamite, since he discussed dynamite throughout the
memorandum, and he attached to the memorandum one of the Confessor's
statements, which described the use of a dynamite.

One important difference between an ammonium nitrate based explosive and an
ammonium nitrate based dynamite is NG, which is an essential component only
of the latter. By misstating the June 4th conversation by omitting reference to a

dynamite and by including reference to ANFO, Whitehurst made it seem that
the important issue to be addressed in the memorandum was the use of an
explosive that may not contain NG. As noted, Whitehurst detected no residues
of NG on the evidence.

In the second paragraph of the memorandum, Whitehurst stated the following
conclusion:

It is my opinion at this time that the data we acquired from
analysis of the evidence provided to us in this matter does not
disprove the use of an ammonium nitrate based high explosive
and in fact is consistent with but not proof of the use of such an
explosive.

Later in the memorandum, Whitehurst stated the basis for this conclusion:

The presence of white powder in the pits and the initial data
consistent with the presence of nitrate and nitrite ions is consistent
with though not proof of the presence of an ammonium nitrate
based explosive.

This conclusion tracked Whitehurst's misstatement of the June 4th conversation
and begged the real question in the case--namely, whether the data disproved or
was consistent with the use of an ammonium nitrate based dynamite. As
Whitehurst stated in his interview, The question that [Hahn] asked me was
essentially, was an ammonium nitrate gelatin based dynamite used, or can you
discredit that.

Because Whitehurst detected no NG residue, it would have been difficult for
him to conclude that the evidence in fact is consistent with the use of a

dynamite. We are unable to find that Whitehurst deliberately misstated the June
4th conversation to avoid that difficulty but still render an opinion that the
evidence was consistent with a large class of explosives that would appear to
include an ammonium nitrate dynamite. In any event, the conclusion about an
ammonium nitrate explosive did not address the exact question asked by Hahn.
Nowhere in the Whitehurst Memorandum does the author say that the data is
consistent with an ammonium nitrate dynamite.

Whitehurst may have rendered an opinion that the data was consistent with an
ammonium nitrate explosive because he thought this was the only conclusion
justified by the evidence and he thought, in good faith, that he should set forth
any conclusions he could reach. If so, he should have stated explicitly that he
could not conclude that the data was in fact consistent with an ammonium
nitrate dynamite, the Confessor's alleged explosive. As written, the conclusion
is, at best, confusing, because it erroneously suggests that Whitehurst thought
the data was consistent with the Confessor's story.

3. Validity of Opinions

a. Ammonium Nitrate Explosive

As noted, Whitehurst opined that the data (1) does not disprove, and (2) in fact
is consistent with, an ammonium nitrate based high explosive. The first part of
the opinion appears valid. Indeed, because all the remnants of the aircraft were
not recovered and because the recovery did not begin until several days after
the crash, it would have been virtually impossible to disprove the use of any
explosive based on the residue analysis. Finding one or more explosives on the
recovered residue (e.g., RDX and PETN) would not preclude the possibility
that the residue of another explosive either was on an unrecovered remnant or,
before the recovery began, was washed away by rain, was dislodged by the
crash, decomposed, etc. The failure to find residue of an ammonium nitrate
explosive, therefore, would not constitute proof that the explosive was not used
on the aircraft.

In contrast, Whitehurst's opinion that the data in fact is consistent with an
ammonium nitrate explosive is an overstatement by any reasonable measure.
Whitehurst stated in the memorandum: The presence of white powder in the
pits and the initial data consistent with the presence of nitrate and nitrite ions is
consistent with though not proof of the presence of an ammonium nitrate based
explosive. Whitehurst's technician found white powder in certain pits on the
fuselage. This white powder possibly could have been ammonium nitrate. The
technician, however, attempted to examine this powder instrumentally and was
unable to determine what it was. The identity of the white powder is unknown.
As for the ions, Whitehurst's technician produced initial data consistent with
the presence of nitrate and ammonium ions on specimen Q13. A second test,
however, could not confirm[] the presence of the ions. Accordingly, it is not
certain that the ions were in fact present. In any event, because nitrate and
ammonium ions occur naturally in the environment, the mere detection of them
has only very limited probative value.

Whitehurst himself later maintained that similar results were not significant
when he criticized certain work by David Williams in the Oklahoma City case.
There, Williams stated in his report that [a]mmonium ions and nitrate ions were
found to be present on specimen Q171. This statement was apparently made in
support of Williams' theory that ANFO was the main charge in the explosive
device. Whitehurst had this to say about Williams' statement:

Why is Mr. Williams being allowed to introduce this into his
report. He knows perfectly well that that means absolutely nothing
at all. But the prosecutors will not. After an explosion the
presence of nitrates are ubiquitous. Before an explosion nitrates
are ubiquitous, everywhere. We are only now conducting
background studies to determine just how prevalent. Many
explosives give off ammonium. It means nothing, UNLESS
TAKEN OUT OF CONTEXT.

(Capitalization in original; emphasis added.) When confronted with the
contradiction between his comments about ions in the Avianca and Oklahoma
City cases, Whitehurst could provide no explanation.

The laboratory notes in the Avianca case for specimen Q13 state that the
ammonium and nitrate ions could not be reasonably associated because
ammonium nitrate was not detected on a particular test and both ions could be
formed by other than ammonium nitrate explosives. In his dictation, neither did
Whitehurst mention the ions, nor did he say the data was consistent with an
ammonium nitrate explosive.

Because (1) the white powder could not be identified, (2) the presence of the
ions could not be confirmed, and (3) the ions have been found to occur
naturally in the environment, we conclude that Whitehurst's statement that the
data is consistent with the use of an ammonium nitrate explosive is overstated
and suggests too strongly that such an explosive may have been used on the
aircraft.

b. Ammonium Nitrate Dynamite

In his memorandum Whitehurst also opined that the data we have at this time
cannot be used to successfully disprove the statement that a gelatin dynamite
was used in this bombing. This opinion is valid for the reasons stated above
concerning the inability to disprove the use of an ammonium nitrate explosive
(failure to recover all remnants of the aircraft, etc.).

In his OIG interview Whitehurst addressed whether the data was consistent
with the presence of an ammonium nitrate dynamite. He stated there was a
weak consistency. He stated that the bases for this opinion were the factors
discussed above regarding an ammonium nitrate explosive (the white powder
and ions) and the fact that the presence of NG might have been obscured by the
instrumental overload. As discussed above, Whitehurst's overload theory was

invalid. Given Whitehurst's failure to detect NG residue and given the
weakness of the data showing the use of an ammonium nitrate explosive, we
conclude that Whitehurst's data did not warrant the opinion (given in his OIG
interview) that the evidence was consistent with the use of an ammonium
nitrate dynamite.

Whitehurst's data only allowed him to opine: (1) the data does not disprove the
use of an ammonium nitrate dynamite; (2) no data points to the use of a
dynamite; (3) some data (the unconfirmed presence of ions and the unidentified
white powder in the pits) have very limited probative value; (4) the ions (if they
were present) could have come from an ammonium nitrate dynamite or from
numerous other explosives or from the environment, and he cannot say which
alternative is most likely; and (5) the unidentified white powder could have
been ammonium nitrate or some other white substance, and he cannot say
which alternative is most likely.

Thus, Whitehurst's opinion that the data was consistent with the use of an
ammonium nitrate explosive was not only overstated but begged the real
question--namely, whether the data was consistent with the use of an
ammonium nitrate dynamite (the explosive the Confessor said he used). As to
that question, we conclude that Whitehurst's data did not justify an opinion that
the evidence was consistent with any dynamite. Accordingly, Whitehurst's
conclusion in the second paragraph of the memorandum--that the data in fact is
consistent with an ammonium nitrate explosive--was not only overstated, but
also misleading, because it suggested, without a valid scientific basis, that
Whitehurst's data supported the Confessor's story.

4. Contamination

Although not directly relevant to the discrediting of the Confessor's story,
Whitehurst addressed in the memorandum whether possible contamination
prevented the Laboratory from determining the significance of the data
identifying the presence of RDX and PETN. In his original dictation
Whitehurst stated:

Chemical analysis of specimen Q15 identified the presence of
RDX and PETN high explosive. These two explosives are used in
conjunction in the explosive SEMTEX. They also can be used in
separate components of explosive systems.

It is the opinion of this examiner that the RDX and PETN
identified on specimen Q15 originated either from an explosive
such as SEMTEX or from a combination of components of an
explosive system containing both PETN and RDX.

The Whitehurst Memorandum sets forth a series of questions about possible
contamination at the crime scene, in transit, and at the Laboratory. See n.115,
supra. Unlike Whitehurst's dictation, in which he opined that the RDX and
PETN came from Semtex or an explosive system, in the memorandum he
raised the question whether the RDX and PETN may have come from
contamination rather than from the aircraft remnants before they were
recovered in Colombia. Whitehurst asserted that the contamination questions
need to be answered before we can determine the significance of the data -- that
is, before it could be determined whether the RDX and PETN came from the
aircraft or from contamination.

Whitehurst told us that when he wrote the memorandum, I had no evidence at
all about contamination. He stated, So what you've asked me is, do I know
there was contamination. No, but I don't know there wasn't contamination.
Whitehurst acknowledged that the contamination questions he raised were not
specific to the Avianca case, but applied to any case involving organic
explosives like PETN, RDX, TNT, nitroglycerine. Nevertheless, at the time of
Whitehurst's March 1996 OIG interview, he had never raised these questions in
any of his numerous cases, before or after Avianca, unless there was specific
evidence of contamination.

Despite Whitehurst's assertion that he had no evidence at all about
contamination when he wrote the memorandum, we think the circumstantial
evidence available to him pointed to the unlikelihood that the PETN and RDX

were present as a result of contamination. The RDX and PETN were both
found on the same specimen, and none of the other eight specimens contained
either explosive. According to Whitehurst's original dictation, and the
prosecution's theory, the substances were found together because they were
components of Semtex or an explosive system used in the bombing. If, instead,
the specimens had been contaminated by RDX and PETN, it would have been
likely that the contaminants would have been randomly distributed on the
specimens, producing contamination with either or both of the explosives on
more than one specimen. In an OIG interview Whitehurst cited a 1995
contamination study in the Laboratory to show the real possibility of
contamination there, but in that study, of the four locations that contained either
RDX or PETN, none contained both substances. Although it is of course
possible that there was contamination of a single specimen with two separate
explosives and no other specimen was affected by either contaminant, this is
not the likeliest scenario.

We question the manner in which Whitehurst raised the issue of contamination.
We do not fault an examiner for raising a relevant issue at a late date if it does
not occur to him earlier, and vigilance concerning contamination should be an
integral part of the work of a forensic scientist. Here, however, the
contamination questions raised in the Whitehurst Memorandum could and
should have been addressed within the Laboratory before the memorandum was
disseminated to a prosecutor in the middle of a trial. Hahn was knowledgeable
about the procedures followed at the crime scene and how the evidence was
transported to the Laboratory. Other personnel could have explained how the
evidence was processed once it arrived at the Laboratory. Whitehurst should
have addressed the contamination questions to these people before he
disseminated the memorandum outside the Laboratory. Finally, Whitehurst
should have noted in his memorandum that the lack of a random distribution of
the RDX and PETN was indicative of the absence of contamination.

Since (1) the contamination issue was only indirectly relevant to contradicting
the Confessor's story, (2) there was no affirmative evidence of contamination,
(3) the circumstantial evidence was indicative of a lack of contamination, and
(4) Whitehurst never wrote a memorandum with questions like these in any
other case before or since Avianca, we conclude that Whitehurst erred when he
raised the issue, in the manner that he did, for the first time in an ongoing trial.

Corby told us he would not have authorized the release of the information in
the Whitehurst Memorandum to the prosecutor had he known Whitehurst had
not contacted Hahn first. Nevertheless, it is apparent from the face of the
memorandum that Whitehurst had taken no steps within the Laboratory to
determine the validity of any of the contamination issues raised in the
memorandum. We therefore conclude that Corby erred when he told
Whitehurst to provide the information in the memorandum to the prosecutor
without also directing Whitehurst to make the necessary contamination
inquiries in the Laboratory first.

5. Circumvention of Hahn

Whitehurst wrote the memorandum on June 7, 1994, and gave it to Corby the
next day. Corby reviewed it overnight and told Whitehurst on June 9, 1994, to
give the memorandum to the prosecutor. That day Whitehurst gave the
memorandum to an agent working on the case; he in turn gave it to the AUSA.
Whitehurst did not consult with Hahn, or give him a copy of the memorandum,
before it was disseminated outside the Laboratory.

Whitehurst justified his failure to consult with Hahn, or send him a copy of the
memorandum, on his assertion that Hahn is a bully, will not listen to any reason
at all, and does not receive information. We have already noted Whitehurst's
error in failing to discuss the contamination questions with Hahn before
disseminating the memorandum to the prosecutor. More generally, we conclude
that Whitehurst's failure to consult with Hahn on any issue, or at least send him
a copy of the memorandum, before releasing it outside the Laboratory was
unprofessional.

IV. Conclusion
A. Hahn

We conclude that in the Munoz trials Hahn did not commit perjury, fabricate
evidence, or intend to mislead the court. We also conclude that he committed
several errors: he erroneously testified in the first trial that no dynamite could
have caused the pitting and cratering on the aircraft; he gave scientific opinions
correlating the pitting and cratering with a VOD range that were unsound and
not justified by his experience; before the second trial, he made no inquiries
about the validity of his jetting theory, even though the literature attached to the
Whitehurst Memorandum conflicted with that theory; he gave incomplete
testimony concerning the MAU results; he testified incorrectly and outside his
expertise concerning a fuel-air explosion, the injuries to passengers, and other
areas; and he slightly overstated his experience. Hahn's conduct exemplifies the
need (discussed in Part Six, infra) to train examiners to base conclusions on
confirmed findings and validated theories and to testify within their areas of
expertise.
B. Whitehurst

We conclude that Whitehurst committed several errors in connection with the
Whitehurst Memorandum: he reached an invalid conclusion that an
instrumental overload may have obscured the presence of NG; this error
occurred because he neglected to thoroughly review the Laboratory file
including the TLC results; he misstated his June 4, 1994, conversation with
Hahn on a material point; he rendered a misleading and overstated opinion that
suggested that his data was consistent with a potential defense; he raised
questions whether contamination may account for his original findings of RDX
and PETN, although there was no affirmative evidence of contamination, the
circumstantial evidence was indicative of a lack of contamination, and he made
no inquiries inside the Laboratory to determine whether his contamination
concerns might have validity; and he released the memorandum outside the
Laboratory without consulting with Hahn or at least sending him a copy.
Finally, he also erred in his 1990 examination by failing to recognize the
instrumental overload and run a second test. All of the errors in the
memorandum tended to create problems for Hahn, the FBI, and the prosecution
in an ongoing trial.

C. Kearney

We conclude that SAS Chief Kearney erred by not properly resolving the
controversy raised by the Whitehurst Memorandum and by not communicating
his decisions to Hahn and Whitehurst. After the second trial Kearney reviewed
Hahn's testimony in that trial and felt Hahn testified outside his expertise
regarding the construction of the aircraft and the injuries to the passengers.
Kearney also erred by failing to discuss these matters with Hahn, and define
and document the corrective action taken, to avoid such problems in the future.

D. Corby

We conclude that Corby erred when he authorized Whitehurst to release the
information in the memorandum to the prosecutor without also directing
Whitehurst to address the contamination questions to personnel inside the
Laboratory first.

#####

SECTION F: ROGER MARTZ'S TESTIMONY IN O.J. SIMPSON CASE

I. Introduction

During the California murder case of People v. O.J. Simpson, DNA results
indicated that blood found on a rear gate at the crime scene belonged to O.J.
Simpson and that blood found on socks at Simpson's residence belonged to
murder victim Nicole Brown Simpson. To counter this evidence, the defense
maintained that the police had planted this blood, using blood samples taken
from O.J. Simpson and the body of Nicole Brown Simpson after the murders.
Authorities collected those blood samples in test tubes that contained a blood
preservative, ethylenediamine tetraacetic acid (EDTA). Accordingly, to
disprove the defense's assertion, the prosecution asked the FBI to determine
whether the blood evidence from the rear gate and socks contained levels of
EDTA consistent with preserved blood from these test tubes.

CTU Chief Roger Martz and several research chemists at the FBI Forensic
Science Research Unit (FSRU) in Quantico, Virginia, worked to develop a
method for identifying EDTA in blood. Martz later examined the bloodstain
evidence from the rear gate and socks and concluded that they did not contain
EDTA-preserved blood. The defense subsequently called Martz to testify about
this work.

Whitehurst stated that after Martz testified, scientists at the FSRU were highly
critical of several aspects of Martz's testimony. These scientists reportedly
claimed that Martz committed perjury by testifying that he had developed the
method used to examine the evidence, misled the jury concerning the FSRU's
validation studies and events surrounding the development of the protocol,
misled the defense by stating that all digital data from the analysis of the
evidence had been erased, and generally testified in an arrogant manner.

In connection with these allegations, we obtained and reviewed transcripts of
Martz's trial testimony and Whitehurst's testimony during a hearing in the
Simpson case. We also obtained and reviewed a videotape of part of Martz's
testimony. We further reviewed pertinent Laboratory reports, dictation, work
papers, and charts in the case, along with various correspondence and
memoranda. Finally, we interviewed numerous personnel in the FSRU and
Laboratory, including former Laboratory Director Milton Ahlerich, Acting
Laboratory Director Donald Thompson, former SAS Chief Kenneth Nimmich,
SAS Section Chief Randall Murch, FSRU Chief Bruce Budowle, FSRU
Quality Assurance Chief Larry Presley, CTU Chief Roger Martz, research
chemists Dr. Mark Miller, Dr. Dean Fetterolf, Dr. Bruce McCord, Dr. Mary
Tungol, and Whitehurst.

We find no basis to conclude that Martz committed perjury or misled the jury
or defense in the Simpson case. Nor do we conclude that Martz improperly
erased digital data from his results. We do conclude that because of his lack of
preparation, his deficient record-keeping and note-taking practices, and certain
aspects of his presentation and demeanor at trial, Martz poorly represented the
Laboratory and the FBI in this case.

II. Factual Background

The prosecution's DNA test results in the Simpson case indicated that O.J.
Simpson's blood was found on a rear gate at the murder scene and that Nicole
Brown Simpson's blood was found on socks taken by police from O.J.
Simpson's residence. The defense suggested in their opening statement that the
police had planted this evidence, using known blood samples from Nicole
Brown Simpson and O.J. Simpson. The police had collected these known blood
samples in test tubes containing the preservative EDTA.

To refute the defense's contention, in late 1994 one of the Simpson prosecutors
asked Dr. Bruce Budowle in the FSRU to determine whether the bloodstain
evidence from the gate and socks contained the preservative EDTA. In January
1995, at Budowle's direction, various research chemists within the FSRU began

working to develop a method for identifying EDTA-preserved blood. Shortly
thereafter, Martz also began working on the same task at the Laboratory in
Washington, D.C. By early February 1995, both the chemists in the FSRU and
Martz had developed methods, using slightly different procedures, for isolating
and identifying EDTA in blood samples.

In mid-February, 1995, the prosecution sent Martz various items for testing,
including a cloth swatch with blood from the rear gate (Q204); a pair of socks
with blood taken from O.J. Simpson's residence (Q205/206); a known blood
sample from Nicole Brown Simpson (K67); and a known blood sample from
O.J. Simpson (K68). Martz examined blood from these items using liquid
chromatography/tandem mass spectrometry (LC/MS/MS) and high pressure
liquid chromatography (HPLC). In his dictation, Martz reported that EDTA
was present in the preserved blood samples taken from Nicole Brown Simpson
and O.J. Simpson, but not in the bloodstain evidence from the rear gate and
socks, in pertinent part, as follows:

EDTA, a blood preservative, was identified on stains prepared
from the K67 and K68 blood samples from Nicole Simpson and
Orenthal J. Simpson, respectively. No EDTA was identified in the
blood stains removed from the Q204 swabbing of the rear gate at
the crime scene and from the Q205/6 sock. Traces of EDTA were
detected on the stained and unstained cutting from the victim's
dress.

In July 1995, Simpson's counsel sent a letter to the FBI requesting all digital
data underlying the LC/MS and HPLC testing in the case. The FBI Office of
General Counsel (OGC) responded by letter that the underlying digital data had
not been saved in the computer. The following day, the OGC clarified this
remark in a letter stating that the FBI had saved the digital data underlying its
validation studies at the FSRU, but not the data underlying forensic testing by
Martz.

On July 25 and 26, 1995, Martz testified in the Simpson case as a witness
called by the defense. Martz testified that he came up with the method used to
extract blood from the sock and the swatch from the rear gate. He further
testified that it took him approximately one week to design the method used for
identifying EDTA in blood. He stated that he did his own validation study and
did not look at any validation study by the FSRU. He also stated that he was
not aware that Quantico had conducted any studies to determine how well his
method pulled EDTA out of blood. Later in the testimony, Martz did refer to
the work performed by the FSRU.

Martz also answered questions by defense counsel concerning his failure to
retain digital data underlying his charts. Martz explained that the raw data is
stored on a computer with limited storage space. Martz stated that in this case
he printed out the appropriate charts, drew his conclusions, and did not need to
look at the data again. Therefore, Martz told us that he permitted the data to be
erased. Martz added that there is a tape back-up attachment for this instrument,
but it is quite complex. Martz testified that at present there is no way to review
this raw digital data; however, it was possible to review the charts representing
the digital data or re-run the samples to obtain digital data.

Martz made additional noteworthy statements during his testimony. In
particular, when the defense counsel asked whether Martz had decided during a
break to become more aggressive in answering questions, Martz responded, I
think I decided that I had to be more truthful. I was not telling the whole truth
with yes and no answers. . . . I decided that I wanted to tell the whole truth. At
another point in the testimony, Martz acknowledged that he had performed
analyses using his own blood in May and July 1995, but had not made any
notes describing how he conducted the analyses.

After hearing Martz's testimony, Budowle complained to Forensic Science
Research and Training Center Chief Kenneth Nimmich that Martz had not
properly credited the FSRU for developing the testing procedures. As a result,
Nimmich prepared an August 30, 1995, memorandum to Laboratory
management that criticized Martz for failing to retain his digital data and for
testifying that he did not review or rely upon the FSRU's data and validation
study. Nimmich recommended that Martz be orally reprimanded.

In response, Martz wrote two memoranda. In the first, Martz defended his
failure to retain digital data by asserting that he had produced a chart of ions of
interest whenever coherent data were present. Martz also maintained that he
had followed standard CTU practice in allowing the data to be erased as new
data was added to the system's limited storage. In the second memorandum,
Martz denied that he had misrepresented the involvement of the FSRU. Martz
acknowledged that he had worked with members of the FSRU to develop the
EDTA test, but added that he had developed and used a negative ion procedure
that was different from the procedure developed at the FSRU. Martz also stated
that contrary to Nimmich's suggestion, he did not recall receiving a written
report of recommended procedures from the FSRU.

After receiving Martz's response, Nimmich wrote a memorandum in which he
concluded that Martz had not improperly erased digital data or been less than
candid in giving credit to the FSRU. Nimmich noted that Martz had printed out
all pertinent data and that it was not practical to save all the digital data.
Nimmich also concluded that Martz had given sufficient credit to the FSRU by
the completion of his testimony. SAS Chief Randall Murch reviewed the matter
and concluded that Martz's testimony raised a performance, not a misconduct,
issue. Murch and Deputy Laboratory Director Thompson later counseled Martz
about his lack of precision in testifying and his need to give credit to others.

III. Analysis of Whitehurst's Allegations

Whitehurst did not conduct any analyses in the Simpson case and watched only
a few minutes of Martz's testimony on television. Whitehurst makes clear that
his comments are based on his conversations with others rather than on firsthand knowledge. Based on these conversations, Whitehurst reports the
following allegations:

A. The Claim that Martz Committed Perjury by
Testifying that He Authored the Testing
Procedures

Whitehurst reports that FSRU chemists told him that Martz committed perjury
by representing himself as the author of the protocol used to analyze the
evidence. According to Whitehurst, these FSRU chemists actually developed
the protocol that Martz used.

To evaluate this claim, we reviewed the sequence of events leading to Martz's
examination of the evidence. Research chemists at the FSRU in Quantico,
Virginia, began preliminary methods development as early as January 18, 1995.
Dr. Dean Fetterolf of the FSRU began running samples using liquid
chromatograph/mass spectrometry (LC/MS), although, according to Dr. Mark
Miller at the FSRU, Fetterolf's initial results were not promising. In the
meantime, Dr. Bruce McCord employed ion chromatography (IC) as a
detection method. At about the same time, Miller and Martz at the FBI
Laboratory in Washington, D.C., also began developing testing methods using
the LC/MS method. Throughout this period, Miller and Martz shared
information with one another about instrumental parameters, solutions, and
preliminary results from testing positive and negative controls (samples with
and without added EDTA).

On February 2, 1995, Miller recorded a method for identifying EDTA in dried
blood stains using an aqueous extraction followed by Electrospray Liquid
Chromatography/Tandem Mass Spectrometry (ES-LC/MS/MS). To test the
validity of this method, Budowle prepared 42 dried bloodstain samples for
blind testing at the FSRU. On February 9, 1995, using McCord's procedure for
preparing the samples, Miller ran the 42 blind stains using ES-LC/MS/MS in
the positive ion mode. In his notes of that validation study, Miller reported that
this method correctly determined all 42 samples for EDTA. On February 10,
1995, Miller wrote up his method, which entailed aqueous extraction, injections
on LC/MS/MS, specific instrumental parameters, and positive ion MS/MS. As
part of these efforts, Miller also conducted a recovery study in which he added
a known amount of EDTA to a blood sample and then recovered and measured
the EDTA from the sample.

Throughout this time period, Miller conferred by telephone with Martz, who
continued to test blood samples at the FBI Laboratory. Martz utilized
LC/MS/MS in the positive ion mode, but also began using LC/MS/MS in the
negative ion mode, a procedure that was not the focus of the work by Miller
and McCord. Martz designed this procedure using different instrumental
parameters and a different mobile phase than the positive ion mode procedure
used at the FSRU. While not as sensitive as positive ion mode procedure, this
negative ion mode procedure was more selective for ions of EDTA. On
February 8, 1995, Martz conducted his own validation study of this method.

On February 19, 1995, Martz utilized this LC/MS/MS procedure in the
negative ion mode to analyze the known samples of preserved blood taken from
Nicole Brown Simpson and O.J. Simpson and the bloodstain evidence from the
rear gate and socks. Miller assisted Martz in that analysis at the FBI
Laboratory. Using this procedure, Martz was able to detect EDTA in the known
samples of preserved blood from Nicole Brown Simpson and O.J. Simpson, but
not in the bloodstains from the rear gate and socks. These results appear in
Martz's report. In the following week, Martz also used the positive ion mode
procedure substantially similar to that used at the FSRU to test the known
blood samples from Nicole Brown Simpson and O.J. Simpson and to conduct
parent-daughter ion experiments with the bloodstain evidence from the gate and
socks. Martz also used a High Pressure Liquid Chromatography procedure,
which confirmed Martz's reported results.

With this background, we conclude that on balance, Martz's testimony fairly
characterized his responsibility for the testing procedures and was not false or
perjury. To be sure, early in his testimony, Martz emphasized his own role in
developing a set of conditions for using LC/MS/MS in the negative ion mode.
He testified that he designed the method over a period of one week and
described it as my method. He stated that he conducted his own validation
study and did not look at a validation study by the FSRU. He added that if the
defense counsel wanted to know about the FSRU's validation study, the defense
counsel would have to ask them. He stated that he was not aware of any FSRU
study to test the efficiency of his extraction method. Martz also indicated that
he was responsible for the method used to extract blood from the sock and gate

swatch. At least initially, Martz appeared to ignore the contributions of the
FSRU.

Martz corrected that impression later in his testimony, however. Martz testified
that the studies that I did and the studies that were done at Quantico
demonstrated that one could easily distinguish between preserved and nonpreserved blood. He further testified that he ran a blind test on February 8,
1995, and analyzed the results with procedures developed by myself and--at
Quantico . . . . Martz later acknowledged that the FSRU had tested the
efficiency of his extraction method. Martz further testified that he kept current
in the field of mass spectrometry by contact with his peers, noting, [W]e have a
staff at Quantico, a lot of Ph.Ds that do a lot of research and we keep in contact
with them.

In reaching the conclusion that Martz did not commit perjury, we also
considered the comments of the scientists at the FSRU. McCord, Fetterolf,
Miller, and Budowle all told us that they did not consider Martz's testimony to
be perjurious or inaccurate. Budowle and Miller noted that Martz appeared
initially to take credit for work at the FSRU, but later gave credit to the FSRU.
Fetterolf and Budowle told us that they viewed Martz's problem as one of
presentation and demeanor.

In sum, we find that Martz's testimony was sufficient to communicate his
collaboration with the FSRU, as well as his role in developing the particular
negative ion procedure used to analyze the evidence. We find that Martz did
not testify falsely or commit perjury by claiming that he authored this
procedure.

B. The Claim that Martz Misled the Court
Concerning the FSRU's Validation Study and
Other Matters

According to Whitehurst, scientists at the FSRU also reported that Martz gave
misleading testimony concerning the validation studies and other matters.

During his examination by defense counsel, Martz testified that he was aware
that the FSRU did something that they called a validation study. The defense
counsel asked whether Martz looked at or reviewed these materials. In
response, Martz testified that he did not look at those validation materials and
noted that the FSRU had not prepared these materials for him.

Our investigation showed that this testimony by Martz was accurate. Miller told
us that he and Martz spoke by telephone about the study, but he did not believe
that Martz received from the FSRU any written materials about this validation
study. Nor, according to Miller, did the FSRU prepare anything else about the
validation study for Martz. During our interview, Martz also denied receiving
any such materials from the FSRU before testifying. While it seems clear that
Martz did not receive or review the FSRU's validation materials, Martz could
have been clearer by noting that Miller had advised him of the validation
results.

Martz also testified that he conducted his own validation study. Again, our
investigation showed that this testimony by Martz was accurate. Martz's notes
confirm that on February 8, 1995, he ran samples as a blind test in the negative
ion mode. Miller also recalled that Martz conducted his own testing at the FBI
Laboratory using negative and positive controls. Miller understood that Martz
generated his own samples for these tests.

Whitehurst further reports that Martz was criticized for testifying that the
testing method validated itself. The transcript shows that the defense counsel
asked who bore responsibility for validating the test, and Martz replied, [t]he
test validates itself basically. Standing alone, this statement appears to be
nonsensical. However, Martz immediately went on to explain that the process
of validation involves determining that the chemical can be extracted,
identifying the chemical based on its mass spectrum, establishing the
instrumentation, and using standards and controls to confirm the results. Under

the circumstances, we do not think that Martz's statement was erroneous or
misleading.

Martz also testified that he was not aware that Quantico had conducted a
recovery study to determine how well the extraction method pulled EDTA out
of blood. Simpson's counsel asked Martz to review that study at the lunch
break. After the lunch break, Martz testified that he had telephoned the FSRU
and learned that the extraction method removed approximately 93% of the
EDTA from the blood sample.

We do not think that Martz misled the trier concerning his knowledge of this
recovery study. Miller told us that he had previously informed Martz of the
results of the recovery study, but Martz apparently forgot. Miller recalled
speaking with Martz at the lunch break and again informing him of those
results. Martz likewise told us that he did not recall ever learning about those
results until the time of trial. Also consistent with Martz's statement, our review
of Martz's notes in the case did not disclose any notes about the recovery study.

Although we conclude that Martz did not mislead the court as suggested by
Whitehurst, we think this case illustrates the importance of principal examiners
reviewing the work performed by other examiners and researchers. Given the
importance of this case and the obvious expertise on the defense side, Martz
was surprisingly unprepared for his testimony. For example, Martz was not
aware that the FSRU had conducted studies to determine how well his
extraction method pulled EDTA out of blood. Nor had he reviewed the charts,
graphs, and notes from the validation study conducted by the FSRU. Had Martz
conducted this review, he might have side-stepped much of the attack on his
method. We think that Martz's failure to prepare explains why he was not clear
in describing the validation efforts performed by the FSRU and, by extension,
giving credit to the FSRU for that work. Thus, we conclude that one element in
Whitehurst's allegations -- that Martz did not review well the work that had
been done -- is accurate.

C. The Claims That Martz Misled the Defense
Concerning His Erasure of Digital Data and
Improperly Erased Digital Data

Whitehurst also reports that Martz was criticized for misleading the Simpson
defense. Martz reportedly told the defense that he had erased the digital data
underlying the testing, when in fact the FSRU still possessed such digital data.

The evidence does not support Whitehurst's suggestion that Martz misled the
defense concerning the digital data. Our investigation showed that on July 9,
1995, Simpson's counsel sent a letter to the OGC requesting the digital data
underlying the LCMS and HPLC testing which was done. In response, OGC
attorney John Sylvester contacted Martz, who informed Sylvester that he had
not saved his digital data. Martz told us that in reporting the absence of this
data, he spoke only for himself and did not make any representations on behalf
of the FSRU. Accordingly, on July 10, 1995, Sylvester sent a letter to
Simpson's counsel stating that the data had not been saved. Sylvester told us
that when Budowle received a copy of Sylvester's letter, he notified the OGC
that the FSRU had in fact saved its digital data. As a result, on July 11, 1995,
counsel in the OGC sent another letter advising Simpson's attorneys that the
FBI had saved the digital data for the validation studies but not for the forensic
testing. The foregoing shows that Martz truthfully reported that he had not
saved the data underlying his own LCMS and HPLC testing. We discern no
effort on Martz's part to mislead.

We also find no support for the allegation that Martz improperly erased his
digital data. Martz's decision not to retain digital data, while perhaps subject to
criticism for tactical reasons at trial, cannot be criticized from a scientific
perspective. The American Society of Crime Laboratory Directors/Laboratory
Accreditation Board (ASCLD/LAB) provides guidance concerning the
documentation requirements for such analyses. Under Essential Criterion
1.4.2.14 of ASCLD/LAB Manual, the Manual provides that case records such
as notes, worksheets, photographs, spectra, printouts, charts and other data or
records which support conclusions must be generated and kept by the
laboratory. ASCLD-LAB Manual at 19 (Jan. 1994) (emphasis added). In its
discussion section for that provision, the Manual further provides:

In general, documentation to support conclusions must be such
that in the absence of the examiner, another competent examiner
or supervisor could evaluate what was done and interpret the data.
. . Examples of analytical documentation would include reference
to procedures followed, tests conducted, standards and controls
used, diagrams, printouts, autoradiographs, photographic,
observations, and results of examinations . . . where instrumental
analyses are conducted, operating parameters should be recorded.

ASCLD-LAB Manual at 30-31 (Jan. 1994).

Consistent with these guidelines, Martz retained in hard copy form all mass
spectra that demonstrated the detection of any significant ions and upon which
he based his conclusions. These charts would have enabled a competent
examiner to interpret Martz's data and evaluate his conclusions. Martz was not
required to retain his digital data. The digital data that Martz allowed to be
erased, and which was not otherwise reflected in hard copy, was not material to
Martz's conclusions.
In reaching this conclusion, we also recognize that the limitations of electronic
storage made it difficult for Martz to retain this data. A mass spectrometer is
capable of scanning streams of ions and recording data every one and one-half
seconds, resulting in hundreds of scans collected in digital form and relatively
few spectra of interest. In view of the amount of data that could be collected,
the Finnegan TSQ 700 mass spectrometer used by Martz in the Laboratory had
a cumbersome and inefficient long-term storage system. The available
magnetic tape back-up system reportedly stored just 90 megabytes per tape and
did so sequentially. Given the constraints of the instrumentation, it would have
been extremely time consuming to record all of this digital data and difficult to
locate and download information when needed.

Although we do not criticize Martz's erasure of the digital data under the
circumstances of this case, we are troubled by Martz's other record-keeping
practices. Martz testified that he examined his own blood for the presence of

EDTA in May and July 1995, but did not make any notes describing how he
conducted these analyses. Martz explained at trial that because he examined his
own blood in the same way he had examined other samples, he decided not to
write down the procedure again. Martz further stated that he did not prepare a
report because he considered these runs to be research, not case work.
According to Martz, he would not generate a report when he did case-related
research if he thought he could readily remember the examination.

Martz's rough notes in this case confirmed the absence of any notes or reports
of these examinations. Additionally, Martz failed to number and initial his
notes, identify the case number in some notes, or set forth his procedures for
some of his testing.

We find the foregoing record-keeping practices to be unacceptable. Martz
should have made and retained notes describing his procedures, even if he
considered the procedures to be background research and not case work. As a
general rule, an examiner should make and retain notes for all work related to
any case, but especially work that might be the subject of examination at trial.
Further, another examiner should be able to review such notes and have a
complete understanding as to all procedures performed in any case. Martz's
work in this regard was deficient.

D. Criticism of Martz's Presentation

Whitehurst also reports that scientists in the FSRU were critical of the manner
in which Martz testified.

At the outset, we observe that contrary to the suggestion of the defense, Martz's
analysis was sound. Martz employed well-established analytical techniques to
isolate and identify EDTA in dried blood, and he answered the specific
question raised in the case. While Martz came under intense questioning by the
defense for not conducting various additional studies, we are not critical of

Martz on these grounds. Given an unlimited amount of time and resources, the
FBI Laboratory could have conducted all sorts of studies on myriad related and
tangential issues. But the reality is that Martz's role was to generate probative
information based on the limited samples provided and return the samples for
further independent analysis if necessary. He accomplished that task, and it
does not appear that any other expert in the case repeated his work and came to
any other conclusions.

All things considered, however, the Laboratory would have been better served
by assigning another examiner in the CTU to this case. By his own admission
during testimony, Martz had many other responsibilities at the time as the Unit
Chief and Acting Section Chief. Martz's poor preparation, his lack of a
toxicological background, and his maladroitness as a witness were evident
when he misstated the value for pi, admitted that he was unfamiliar with the
word pharmacokinetics, commented about the need to tell the whole truth, and
appeared to boast that he was the foremost expert in EDTA testing.
Furthermore, our review of a videotape of portions of Martz's testimony
showed that Martz appeared to be unprepared, ill-at-ease, and defensive -characteristics that undermined his effectiveness as a witness. In a high profile
case such as this, consideration should have been given to assigning the case to
an examiner with a stronger toxicological background. In this respect,
Laboratory management must bear some responsibility for Martz's testimony in
this case.

Perceptions by the court or jury as to the credibility of experts are often
influenced by factors such as demeanor, presentation, and background. On
these dimensions, Martz was not at all impressive.

IV. Conclusion

We find no basis to conclude that Martz committed perjury or misled the trier
of facts or defense in the Simpson case. Nor do we conclude that Martz
improperly erased digital data underlying his results. We do conclude that
because of his lack of preparation, his deficient record-keeping and note-taking

practices, and certain aspects of his presentation and demeanor at trial, Martz
poorly represented the Laboratory and the FBI in this case.

#####

SECTION G: OKLAHOMA CITY BOMBING

I. Introduction

On April 19, 1995, an explosion destroyed the Alfred P. Murrah Federal
Building in Oklahoma City, Oklahoma, resulting in the deaths of 168 people. A
massive investigation was undertaken by the FBI, as lead agency, with the
assistance of other agencies including the Bureau of Alcohol, Tobacco and
Firearms (ATF). Two persons, Timothy McVeigh and Terry Nichols, were
indicted for causing the blast, but have not yet been tried.

In 1995 SSA Frederic Whitehurst sent the OIG correspondence criticizing
members of the Laboratory for their handling of the Oklahoma City case. On
January 9, 1996, Whitehurst sent the OIG a 30-page letter criticizing the
September 5, 1995, FBI Laboratory explosives report of SSA David Williams
in that case. Whitehurst contends that Williams' report goes beyond Williams'
expertise, is biased in favor of the prosecution, and contains unjustified
conclusions.

To investigate Whitehurst's allegations, we interviewed Whitehurst, Williams,
EU Chief J. Thomas Thurman (who reviewed and approved Williams' report),
Steven Burmeister (a CTU explosives residue examiner who worked on the
case), James Corby (former MAU Chief), as well as other FBI and ATF
personnel, some of whom worked at the scene of the blast. We also submitted
written questions to Roger Martz, the CTU Chief who worked briefly on the
Oklahoma City case. Additionally, we considered pertinent FBI documents and
applicable literature in the field of explosives.

As explained below, we conclude that in his report Williams repeatedly reached
conclusions that incriminated the defendants without a scientific basis and that

were not explained in the body of the report. We find fault with other aspects of
the report as well. We also conclude that Thurman performed an inadequate
review of Williams' report by allowing Williams too much discretion and by
approving conclusions with which Thurman disagreed and could not support.
Further, we conclude that Martz improperly deviated from the explosives
residue protocol in his examination of some specimens. Finally, we conclude
that Whitehurst's numerous other contentions lack merit.

The following section (Section II) analyzes Williams' report, and Section III
addresses Thurman's review of the report. Section IV addresses allegations
concerning Martz's examination of evidence. Section V states our conclusions.

II. Williams' Report

A. Velocity of Detonation

As discussed with reference to the Trade Center bombing, Williams is the only
EU examiner who has offered opinions of a specific velocity of detonation
(VOD) of the main explosive of a bombing based on the damage at the crime
scene. See Part Three, Section C, n.24, supra, and accompanying text. Williams
has done so in two cases, the World Trade Center case and the Oklahoma City
case. Williams' September 5, 1995, Oklahoma City report reads as follows:

During initial inspections and subsequent examinations of the
crater, explosive damage to the bomb laden vehicle, witness
buildings, automobiles, victims and other local witness materials,
it is the opinion of this examiner that the explosive utilized as the
main charge had a Velocity of Detonation (VOD) of
approximately 13,000 feet per second (fps).

In his OIG interview Williams stated that this 13,000 feet per second opinion
had a tolerance on either side of 1,000 feet per second.

For the reasons stated in our discussion of the World Trade Center case (see
Part Three, Section C, p.118, supra), Williams' specific VOD opinion in the
Oklahoma City case lacked an adequate scientific and empirical basis.

Williams also stated in his report that [a] fertilizer base explosive, such as
ANFO (ammonium nitrate and fuel oil), among other commercial and
improvised explosives, has an approximate VOD of 13,000 fps. Williams thus
stated that the approximate VODs of both the main charge and ANFO were
each 13,000 feet per second, which supported his theory that the main charge
was ANFO.

The statement of the VOD of ANFO, however, is incomplete because ANFO
has a broad VOD range. For example, the Dupont Blasters' Handbook (Dupont)
shows commercial ANFO products with VODs in the 7,000-15,600 feet-persecond range. When Williams wrote his Oklahoma City report, he was aware of
this range:

OIG: . . . [A]t the time of the World Trade Center bomb [February
1993], what did you understand the velocity of detonation of
ANFO to be?

AGENT WILLIAMS: About -- about 13,000 feet per second.

OIG: Okay.

AGENT WILLIAMS: And that was the average.

And I did know that ANFO can function as slow as 8,000 feet per
second or slower and as fast as, if not faster, than 15,000 feet per
second.

Additionally, Williams' working hypothesis in the Oklahoma City case was that
the ANFO used by the perpetrators was not produced commercially but was
rather improvised -- that is, the offenders mixed the ammonium nitrate and
diesel fuel themselves. Presumably the quality control of improvisers would be
inferior to that of commercial manufacturers. If the ingredients were not
combined in the correct ratio, the VOD of the resulting explosive might be
reduced. Accordingly, improvised ANFO would have at least as broad a range
of VODs as that of commercial ANFO.

Thus, ANFO can detonate at a VOD of 13,000 feet per second, but it can also
detonate at lower (7,000 feet per second) and higher (15,600 feet per second)
velocities. By only mentioning an ANFO velocity of 13,000 feet per second,
Williams suggested too strongly that there was an exact match between the
VOD of ANFO and his reported VOD of the main charge.

B. Identification of the Explosive

Williams testified at his OIG interview that determining that the main charge
had a specific VOD of 13,000 feet per second, with a tolerance on either side of
1,000 feet per second, did not limit the main charge to a specific explosive.
Williams acknowledged that there are a lot of different explosives in the range
of 12-14,000 feet per second. Williams also acknowledged that although
ammonium nitrate crystals were found at the post-blast scene, there are many
explosives in the range of 12-14,000 feet per second that have ammonium
nitrate in them. Nevertheless, Williams concluded in his report ( it is also the
opinion of this examiner ) that the main explosive used at Oklahoma City was
ANFO. He acknowledged that he reached this conclusion, in part, because
Terry Nichols, one of the defendants in the case, purchased ammonium nitrate

and diesel oil prior to the bombing. Without the evidence of these purchases,
Williams admitted he would have been unable to conclude that ANFO was
used. Indeed, Williams stated that based on the post-blast scene alone [i]t could
have been dynamite; I'm suggesting that there could have been other things.

We conclude that it was inappropriate for Williams to render a categorical
opinion in his report that the main charge was ANFO. As discussed with
reference to the World Trade Center case, it is inappropriate for a forensic
Laboratory examiner to identify the main charge based in whole or in part on
prior knowledge of the explosive components purchased by a defendant. Such
an identification is not based on scientific or technical grounds and appears to
tailor the opinion to evidence associated with the defendants.

Moreover, Williams' report does not mention that the defendant's purchases
were the basis of the ANFO opinion. The report is presented as an FBI
Laboratory report. It begins with the phrase, Results of examination: . The
reader is left with the impression that the opinions presented are based on the
scientific analyses of the FBI Laboratory. Accordingly, Williams' opinion that
the main charge was ANFO appears to be based solely on his technical
expertise as an explosives examiner and thus appears to be very incriminating
to someone (like defendant Nichols) who allegedly purchased ANFO
components before the Oklahoma City explosion. The opinion is thus
misleading and presents the case in a way most incriminating to the defendants.
Had Williams explicitly stated in his report that the ANFO opinion was based
on the defendant's purchases, the opinion could have been appropriately
discounted as a non-expert conclusion that seeks to match the characteristics of
the explosion with evidence associated with the defendants.

As indicated, Williams told us that the crime scene was consistent with the use
of an ammonium nitrate dynamite, which could have had a VOD in the range
Williams estimated. The major components of ammonium nitrate dynamite
(ammonium nitrate and nitroglycerin) were found at the crime scene. A
dynamite wrapper was also found. Williams' report, however, fails to address
the possibility that the main charge consisted of dynamite, which an objective
report would explicitly have discussed.

We conclude that Williams' categorical conclusion that the main charge was
ANFO was not scientifically justified and was based on improper grounds.

C. Weight of the Explosive

We question the basis for Williams' conclusion that the weight of the main
charge was approximately 4000 pounds of ANFO.

As discussed in the section on the World Trade Center (see Part Three, Section
C, pp. 132-134, supra), Williams' method of determining weight is
impressionistic and depends on his VOD estimate, which is itself speculative.
As noted in that section, other members of the EU do not routinely estimate the
quantity of the explosive from a damage assessment because the placement and
confinement of the explosive have a significant effect on the amount of the
damage. Nevertheless, we concluded in the Trade Center case that Williams'
size estimate of 1,000-1,500 pounds, which he characterized as a ballpark
figure, was not, as such, an unreasonable opinion because he offered such a
broad range.

With respect to the weight of the explosive, Williams' Oklahoma City report
differs from his trial testimony in the Trade Center case in two respects. First,
the Oklahoma City report does not offer a broad range but limits the estimate to
approximately 4000 pounds of ANFO.

Second, it appears that Williams' opinion was based in part on the recovery of
receipts showing that defendant Nichols purchased 4,000 pounds of ammonium
nitrate. Williams testified at the OIG interview:

OIG: . . . [Y]our conclusion as to 4,000 pounds, is that based on
your observations at the crime scene?

AGENT WILLIAMS: Within this report, yes, it is.

OIG: That's not based on the searches or anything? Your
conclusion as to 4,000 pounds, is that based on anything that was
recovered in the searches or receipts or what they ordered?

AGENT WILLIAMS: Yes, it is. . . . It's not solely based -- my
estimate of 4,000 pounds is not solely based on the receipts. By
looking at the crime scene, the crater, looking at this Conwep
program[] and such, all of these things suggest that by the crater
size and by the crater size alone with Conwep suggest 4,000
pounds.

By other things, including the crater size, the blast damage,
breakage, building damage, I can estimate it's approximately
4,000 pounds.

Saying that his 4,000 pound estimate is not solely based on the receipts implies
that the opinion was based on the receipts in part. To this extent, the opinion
was flawed for the same reason Williams' ANFO opinion was flawed because it
was based on the receipts. Moreover, if Williams' opinion was based, in part,
on the receipts, his report should have said so.

We conclude that Williams' weight estimate was flawed because it was more
specific than warranted by the application of the forensic science and because it

was based in part on collateral sources unrelated to laboratory or crime scene
observations.

D. Other Conclusions Concerning the Explosive
Device

Several other conclusions in Williams' report were overstated and conformed to
evidence associated with the defendants.

1. The report concludes that [t]he explosive main charge was contained in 50
gallon size white plastic barrels and white plastic barrels with blue plastic trim.
Recovered at the blast site were white, blue, and black plastic fragments.
Williams testified at the OIG interview that these fragments showed very
unique explosive damage. Assuming the pieces were from a plastic barrel,
[y]ou could tell the inside as compared to the outside of the barrel [fragments].
And in many cases, you could see that the explosive force came from inside to
outside of the barrels. According to the AE dictation, the markings on one of
these plastic fragments are similar to markings on 50 gallon size white plastic
barrels and white plastic barrels with blue plastic trim recovered at defendant
Nichols' residence.

We think it is unwarranted to render a categorical conclusion that the main
charge was contained in plastic barrels of the same description as those found
at Nichols' residence. First, Williams assumed that the main charge was ANFO,
which would need containers for transport or storage. As explained above, the
conclusion that the main charge was definitely ANFO was unwarranted.
Second, since the Laboratory apparently has not made measurements such as
the radius of curvature of the fragments (assuming they came from containers),
it is virtually impossible to know that the containers definitely were 50 gallon
barrels that were white or white with blue trim.

We conclude that Williams lacked a proper basis to state categorically that the
main charge was contained in 50 gallon size plastic barrels of the description of
those found at Nichols' house.

2. Williams' report states that [t]he initiator for the booster(s) was either a
detonator from a Primadet Delay system or sensitized detonating cord.
Primadet systems were found at defendant Nichols' house and an accomplice's
house. Detonating cord normally contains PETN, which laboratory
examinations associated with defendant McVeigh. No evidence of a Primadet
system or sensitized detonating cord was found at the crime scene. As Williams
told us at his OIG interview, the device used in the bombing is consistent with a
Primadet system or detonating cord. I can't say yes and I can't say no. EU Chief
Thurman told us in his interview that the appropriate conclusion was that the
Primadet system or sensitized detonating cord could have been used. We
conclude that it was improper for Williams to render a categorical conclusion
identifying the initiator for the booster.

3. Williams' report also states that [t]he initiator for the primadet or the
detonating cord was a non electric detonator; [n]on electric, burning type fuse
of either hobby fuse or a commercial safety fuse was used as a safe separation
and time delay system ; and [t]he time delay for the burning fuse was
approximately 2 minutes and 15 seconds. Evidence linked the defendants to a
burglary in which non-electric detonators were taken, and the named fuses were
found at locations associated with the defendants. No evidence of a non-electric
detonator or the named fuses, however, were found at the crime scene.
Williams' conclusions were based in part on a videotape showing a Ryder truck
appear near the Murrah Federal Building 2 minutes, 15 seconds before the
explosion. Based on the tape, Williams posited that a 3 foot burning fuse was
used, which he said would correlate with 2 minutes, 15 seconds.

We find that Williams' conclusions are overstated. The scenario he posits is one
of many possibilities. For example, as acknowledged by Thurman, the initiator
could have been electric, and the fuses named in the report were possibilities
but not the only ones. Further, there could have been a longer time delay that
was initiated before the truck appeared in the video.

Williams also stated in the OIG interview that his conclusion that the bomber
used a 3 foot fuse was based on his assumption that the perpetrator had a
military background. (Both defendants have military backgrounds.) It was
improper for Williams to make that assumption unless he could do so based on
the scientific evidence, and there is nothing in his report suggesting that the
evidence indicates that the blast was perpetrated by someone with a military
background.

We conclude that the categorical conclusions discussed above were
inappropriate.

E. Bases for Conclusions

Williams' report is twenty-eight pages long and treats many subjects. The last
two pages consist of conclusions, many of which are discussed above and most
of which are categorical statements. The bases for these conclusions, however,
are absent from the report. A reader of the report, for example, does not know
why Williams concluded that the main charge was approximately 4,000 pounds
of Ammonium Nitrate and Fuel Oil (ANFO) mixture or why the initiator for
the primadet or the detonating cord was a non electric detonator. As
acknowledged by Thurman, the conclusions in a report should be based on, and
flow from, the contents of the report. Williams' report failed to meet that
standard. As we discuss in Part Six, infra, we recommend that opinions in
reports should be reasonably supported by the analysis and data, which should
be described in the report.

F. Restatement of AE Dictation

Although many examiners from different units in the FBI Laboratory may work
on a given case, the Laboratory requires one of the examiners (the principal

examiner or PE ) to issue the official Laboratory reports in the case. The other
examiners (the auxiliary examiners or AEs ) submit their reports ( dictation ) to
the PE for incorporation in the official report. In 1992 Whitehurst complained
that Thurman did not incorporate some of his AE dictation verbatim, and the
matter was reviewed by the management of the Laboratory. See Section H10,
infra. On September 1, 1994, the FBI Laboratory issued a policy memorandum
explicitly requiring verbatim inclusion of AE reports. The memorandum
purported to be a restate[ment of] long-standing policies. Thus, at the time of
Williams' Oklahoma City report (September 5, 1995), he should have been well
aware of the policy of verbatim inclusion of AE dictation.

Two passages in Williams' report (concerning specimens Q18 and Q171) raise
questions about whether Williams attempted to circumvent the verbatiminclusion rule with respect to two AE dictations of Steven Burmeister. We are
unable to conclude that Williams intentionally violated the rule because
Williams told us that Burmeister orally agreed to the modifications and
Burmeister cannot recall whether he did so. However, one of the modifications
makes no sense, and should at least have been rewritten. Both modifications
exemplify the need for strict adherence to the verbatim-inclusion rule and the
problems that can arise with oral agreements to modify reports.

1. Specimen Q18

The pertinent part of Burmeister's dictation regarding specimen Q18, the knife
seized from defendant McVeigh at the time of his arrest, is as follows:

The results of an instrumental examination of residues removed
from the blade portion of specimen Q18 was consistent for the
presence of pentaerythritol tetranitrate (PETN). . . . The presence
of PETN . . . could not be confirmed in specimen Q18.

Williams reproduced this passage verbatim in a report issued before his
September 5, 1995, explosives report. But in the September 5th report Williams
stated as follows: Traces of PETN were located on specimen Q18, however
could not be confirmed. This statement comes in the section of Williams' report
dealing with the booster used in the explosion, and the report states that a
booster can take the form of several different high explosives including PETN.

The statement [t]races of PETN were located on specimen Q18, however could
not be confirmed is internally inconsistent and nonsensical. Confirmation is a
prerequisite for a determination that a substance is located on an exhibit.
Without confirmation of PETN, the exact identity of the traces on Q18 is
unknown. Because there was no confirmation here, the report should not have
said that traces of PETN were located on specimen Q18.

Williams insisted at his OIG interview, despite vigorous questioning on the
matter, that the statement was not internally inconsistent. Of the many reasons
for the verbatim-inclusion rule, we assume one is that the PE normally will lack
expertise in the AE's area, and will therefore lack the competence to review or
change the AE's conclusions. That reason may apply here. Because Williams
apparently does not understand the role of a confirmation test in determining
whether a substance is located on a specimen, he would have been unqualified,
on his own, to rephrase Burmeister's AE dictation, and should have reproduced
it verbatim in his explosives report.

Williams, however, stated in his OIG interview that Burmeister approved
Williams' language [t]wice. Burmeister, however, told us that he did not recall
discussing the statement with Williams. In response to a hypothetical question,
Burmeister stated:

If Dave [Williams] came and showed me that sentence and I sat
and read it like I'm doing now, I would have to tell him, I think it's
a little strong. I think it has more implications than what I'd prefer
to go with, and what I will be testifying to.

Given the conflict between Williams and Burmeister, we are unable to say
whether Burmeister approved Williams' language. If Burmeister did approve
the language, he would have erred for the reasons given in his answer to the
hypothetical question.

Williams told us that the reason he wrote the statement as he did was to draw
attention to the statement so it could be more fully addressed in court. That
purported justification, however, is an insufficient basis for including a selfcontradictory statement in a report.

We conclude that either Williams (for writing it) or Burmeister (for possibly
approving it), or both, erred by including the statement in the report. The better
course would have been for Williams simply to have reproduced the AE
dictation verbatim.

2. Specimen Q171

The pertinent portion of Burmeister's dictation regarding specimen Q171, an
item recovered at a location associated with one of the defendants, is as
follows:

The results of an instrumental examination of residues removed
from specimen Q171 identified the presence of ammonium and
nitrate ions. . . .

Since ammonium and nitrate ions have been found to occur
naturally in the environment[,] the source of these two
components in the specimen residues can not be determined.[]

Williams reproduced this passage verbatim in a report issued May 24, 1995.
But in the section of the September 5, 1995, explosives report concerning
ANFO, Williams included only the first paragraph of the passage and replaced
the second paragraph with: You should refer to the Laboratory report dated
May 24, 1995 for additional information and examination techniques
concerning specimen Q171.

Williams gave the following reasons for replacing the second paragraph of
Burmeister's dictation:

On this particular case and speaking with Steve, Q171 had an
unusual configuration of ammonium and nitrate ions[], which was
more significant than the other ammonium ions or nitrate ions that
were found on other specimens.

And the reason that I put it in here was specifically to do exactly
what that statement did. It attracted attention . . . .

In Steve's report it says they are found in nature. So one would
just brush that away. Here, this is drawing attention so that Steve
gets asked more detail about that.

These reasons do not justify replacing the second paragraph of the dictation. As
for the first reason, if Burmeister thought the concentration of the ions had
significance, the proper way of calling attention to this finding would have
been to add it to the dictation. The second reason implies that one purpose of
replacing the second paragraph was to, in effect, hide it so that the first
paragraph was not brush[ed] away. This would be improper. If the chemist's

conclusion embraces the second paragraph, it is beyond Williams' expertise,
and outside his discretion as PE, to discount it.

Williams stated in his OIG interview, however, that Burmeister approved the
replacement of the second paragraph. Burmeister did not recall whether or not
he approved the replacement. Accordingly, we are unable to confirm Williams'
assertion that Burmeister sanctioned the replacement.

During the course of Williams' discussion of Q171, he expressed the following
opinion:

[T]his is strictly my opinion -- if we're going to go forward within
our laboratory and tell everyone why this stuff could not exist -okay.

We found ammonium and nitrate ions; it's of no relevance. We
found nitrate ions; it's of no relevance. If we keep saying this is of
no relevance, why are we even having chemists do examinations?
These are troubling sentiments. A forensic scientist should make his/her best
effort to reach accurate conclusions, regardless of their impact on the
prosecution's or defense case. It is up to the prosecution or defense to establish,
through expert testimony, the relevance or weight that such data should be
accorded.

We conclude that Williams should not have replaced the second paragraph of
Burmeister's dictation and that Burmeister erred if he agreed to the
replacement. If the concentration of the ions was significant, Burmeister should
have amended his dictation to include this finding.

G. Other Allegations

In his January 9, 1996, letter, Whitehurst makes numerous additional
allegations, most of which lack merit.

1. Whitehurst claims that on several occasions in Williams' report Williams
exceeds his expertise (points 1, 3, 6-12, 15, 19). On each occasion, however,
Williams relied on other experts, including AEs, whose dictation he included
verbatim.

2. Whitehurst questions Williams' conclusion that none of the structural
damage evident within the Murrah building was caused by secondary explosive
devices or explosions. Whitehurst asserts that Williams cannot test his
hypothesis unless he rebuilds the Murrah building and explodes it again with
secondary charges to see whether the damage is different. We reject
Whitehurst's assertion that the Murrah building must be rebuilt and destroyed
again in order to render a valid opinion about secondary explosive devices. We
find reasonable support for Williams' opinion. This included the failure to find
damage consistent with another seat of an explosion and the opinions of
seismologists who concluded that there was a single blast with ancillary or
auxiliary blast effects traveling surface and subsurface.

3. Whitehurst questions Williams' conclusion that tire fragments displayed high
explosive damage. Williams told us that there is really unique kind of explosive
damage, something that in the courtroom someone could see that this tire
wasn't a blowout, it wasn't overinflated. We have not viewed the tire fragments.
For Williams' opinion to be valid, it should be supported by empirical studies
of high explosive damage to tires or substantial experience with such damage.

4. An AE submitted the following dictation, which was reproduced verbatim in
Williams' report:

This yellow film [on Q507] and the yellow film from K169 were
examined microscopically, microchemically and instrumentally.
Based upon the comparison examinations conducted, the yellow
film from Q507 was determined to match the Tedlar film from
K169 in color, type and composition. Therefore, it was concluded
that Q507 could have originated from the box portion of a Ryder
truck like that represented by K169.

Whitehurst criticizes this opinion on the ground that the FBI's paint protocol
has not been validated.

Although we have not viewed the data or charts underlying the AE's opinion,
we have no problem with the opinion's form. In the above passage, the AE
stated what he did ( examined [the film] microscopically, microchemically and
instrumentally ) and stated that his opinion of a match was [b]ased upon the
comparison examinations conducted, which was accurate. Assuming the AE
accurately reported his results, his conclusion ( that Q507 could have originated
from the box portion of a Ryder truck like that represented by K169 ) does not
appear to be overstated.

The FBI's paint protocol should be validated. This could be done through the
FBI's own documented tests or by determining that the protocol uses peerreviewed procedures commonly accepted in the literature or in industry. We
were told by James Corby, the former MAU Chief, that at the time of his
retirement from the FBI (December 1995) the FBI was in the process of
validating the paint protocol for the purpose of ASCLD/LAB accreditation.

Whitehurst asserts:

When I talked with Unit Chief James Corby shortly before his
retirement in December 1995, he advised me that he agreed with
me, that we do not determine the composition of paint and that

because we have not validated the paint protocol we can not say
that the two compositions are the same.

Corby denied Whitehurst's assertion. Corby thought the FBI could analyze
paint pursuant to the protocol and render valid opinions, even though the
protocol was not yet validated. In any case, the AE did not state categorically
that the two compositions were the same, as Whitehurst contends, but merely
that based on specified examinations/comparisons, one could have originated
from the other.

5. Williams observed in his report:

Specimen Q1954 is the rear door latch from the bomb laden truck.
The specimen displays extensive high explosive damage, such as
pitting and cratering.

Whitehurst contends that Supervisory Special Agent Richard Hahn's testimony
about pitting and cratering in the Avianca case (see Section E, supra)
constitutes exculpatory evidence relative to the Oklahoma City case.
Whitehurst is incorrect. Hahn testified that the pitting and cratering in Avianca
indicated a high explosive with a VOD in the area of 20,000 feet per second.
Hahn contends that in this testimony he was not asserting that pitting can only
occur at that velocity, but only that the unique pitting in Avianca indicated that
VOD. It is well-known that pitting and cratering can result from the detonation
of a high explosive with a VOD of 10,000 feet per second or more. Hahn's
testimony about pitting and cratering in Avianca is irrelevant to the Oklahoma
City case.

6. Whitehurst faults Williams for failing to mention a contamination study
Whitehurst performed in June 1995 that found PETN contamination in a
location in the EU and in an evidence storage area. Certain items of evidence in
the Oklahoma City case were examined in the Laboratory in about April or

May 1995 and findings of PETN were made. Any connection between the
findings and the contamination is at this point speculative. The findings of
PETN were made by the AE (Burmeister). We think the AE rather than
Williams was the appropriate examiner to determine whether the AE's
conclusions concerning PETN should be modified because of the
contamination study.

7. Whitehurst criticizes the following passage on page 19 of Williams' report:

Aluminum powder was identified in specimen Q111 recovered at
the residence of JAMES NICHOLS. A mixture of ground
ammonium nitrate and aluminum powder, in significant
quantities, could be utilized as an explosive main charge or in
some cases as a booster.

Whitehurst contends that [a]s an objective scientist, Williams might also have
reported that the ammonium nitrate could be used as a fertilizer and the
aluminum powder as an additive to paint.

A couple of lines before the above-quoted passage, however, Williams refers to
paint grade aluminum powder. Further, when Williams' report discussed
ammonium nitrate in connection with Q507, it included part of Burmeister's
dictation, which stated, Crystalline particles removed from specimen Q507
identified the presence of ammonium nitrate. Burmeister's dictation also
included the sentence, Ammonium nitrate is considered an oxidizer and is used
in some fertilizer and explosive compositions. This sentence was omitted from
Williams' September 5th report, but it was included verbatim in an earlier
report.

Thus, taking all the reports together, information was provided that aluminum
powder could be used in paint and ammonium nitrate in fertilizer. Moreover,
the alternative uses for aluminum powder and ammonium nitrate are well-

known. Accordingly, although we think generally the better practice is to
include, where feasible, common, relevant uses that might reasonably bear on
the applicable investigation, and also include the entire AE dictation, in the
explosive examiner's report, any error in this aspect of Williams' report was
harmless and insignificant.

Along the same lines, Whitehurst criticizes Williams' discussion of binary
explosives because Williams fails to mention that nitromethane (recovered in
one of the searches) can be used in model airplane engines. Again, although the
better practice is to include pertinent alternative uses in the explosives
examiner's report, Whitehurst does not suggest, and we are unaware of, any
recovered evidence of model airplane engines. Accordingly, any error in this
aspect of Williams' report appears to be harmless and insignificant.

8. Although not mentioned by Whitehurst, in the paragraph containing the
above-quoted passage concerning aluminum powder, Williams states that
[g]round ammonium nitrate was identified in certain specimens. The applicable
AE report did not contain the word ground and described the substance as
powder. Williams told us that he looked at the specimens under a microscope
and could tell that they consisted of broken prills, although he did not document
this examination in his casenotes. Williams stated that it was significant that the
prills were ground to rebut defendant Nichols' claim that he possessed the
ammonium nitrate to sell as plant food.

Assuming Williams in fact made the microscopic examination, we nevertheless
think a word more neutral than ground should have been used -- for example,
broken prills. Ground implies that someone deliberately converted the prills to
a use other than fertilizer, which would be incriminating and would apparently
rebut a defense. But all Williams would have been able to see under the
microscope was that the prills were broken or were in powder form. He would
not have been able to tell whether they were broken or crushed intentionally or
accidentally. Further, Williams should have maintained casenotes of his
microscopic examination.

9. Whitehurst criticizes the following passage in Williams' report:

Specimen Q616 displays all of the observable physical
characteristics of a waxed brown paper dynamite wrapper. A
physical and chemical analysis was conducted [on] Q616 and no
explosives or explosives residues were found.

Whitehurst asserts that Williams should have noted that the explosives analysis
protocol is very limited and may have missed residues from such explosives as
PYX, Dinitronapthalene, TATB, DATB, TATP and on and on and on.

The AE dictation, which was reproduced verbatim in an earlier report, states:
The results of an instrumental examination of residues removed
from specimen Q616 did not detect any levels of nitroglycerine
(NG), ethylene glycol dinitrate (EGDN),
cyclotrimethylenetrinitramine (RDX), pentaerythritol tetranitrate
(PETN), dinitrotoluene (DNT), or trinitrotoluene (TNT).

The explosives named by Whitehurst are unusual, and we do not think
Williams needed to specifically comment on them. However, we think it would
have been preferable for Williams to quote the AE dictation verbatim in his
explosives report (even though he had already done so in an earlier report)
because the dictation states the analytical results more precisely.

III. Thurman's Review of Williams' Report

At the time of the Oklahoma City bombing, Supervisory Special Agent J.
Thomas Thurman was the Unit Chief of the EU. Under FBI Laboratory
policies, Thurman as Unit Chief was required to conduct a complete
supervisory review of Williams' Oklahoma City report. This review should

have included, among other things, [a] review of all PE work notes, graphs,
charts, and photographs, and other materials to determine if the examiners
conclusions can be supported and have been properly documented.

We conclude that Thurman failed to properly review Williams' report.
Thurman's principal failing was to approve a report with unsupported
conclusions, with which he disagreed and could not justify. Thurman's
approach to his supervisory review was to approve the report if the examiner
was comfortable with it. Thurman's OIG interview: as long as he portrays to me
that he is in fact comfortable with that, I'm not going to change it. This was an
abdication of supervisory responsibilities.

A. Specific Items in the Report

With respect to Williams' specific VOD opinion of 13,000 feet per second,
Thurman acknowledged in his OIG interviews (as noted above and in the
section on the World Trade Center) that in his long experience in the unit he
never rendered such a specific VOD opinion; rendering such opinions is not
normally done in the unit; and it is not part of EU training to give a specific
VOD opinion. Thurman stated that he would not have included a specific VOD
opinion in the Oklahoma City case if he were the examiner. Thurman should
not have approved the VOD opinion without data justifying it, which Williams
did not have. For example, Williams told us that his opinion was based in part
on the size of the recovered pieces of the Ryder truck: if the VOD had been
16,000 feet per second, according to Williams, the pieces would have been half
the size. But Thurman told us that such a specific relationship between debris
size and VOD was not a commonly held view, and he knew of no data in the
EU supporting it. Accordingly, Thurman should not have approved Williams'
VOD opinion.

As to Williams' categorical identification of the main charge as approximately
4,000 pounds of ANFO, Thurman thought he could rule out all commercial
explosives because in this country with a blast of this size and quantity of
explosives we've never seen anything wherein a commercial high explosive

was used, and this much of explosive. They've been homemade-type mixtures.
We think this is an inadequate ground to eliminate the commercial explosives
in total. Unless the commercial explosives could have been eliminated
scientifically, they remained a possibility. Moreover, Thurman acknowledged
that 2,000 pounds of ANFO and 500 pounds of commercial dynamite could
have been used in the blast. Therefore, Thurman should not have approved
Williams' opinion as to the weight and identity of the main charge.
As for Williams' opinion that the initiator for the booster was either a detonator
from a Primadet Delay system or sensitized detonating cord, Thurman
acknowledged in his OIG interview that the proper conclusion was that the
named initiators could have been used. As noted, Williams reached a
categorical conclusion because Primadet systems were recovered from
defendant Nichols' and an accomplice's house. Regarding such a basis for an
opinion, Thurman said at the OIG interview:

OIG: Well, in your training, do you tell examiners when they're
being trained that they can consider what was found at the
defendant's house or the suspect's house in determining what was
used in the crime?

In other words, if he's got a certain kind of det cord at his house,
you can infer from that that that kind of det cord was used in the
crime even if there was no residue of that kind of det cord,
nothing at the scene of the crime that shows that that kind of det
cord was used.

AGENT THURMAN: I see what you're saying. No, no, not -- no,
not at all. Not at all, no.

Accordingly, we conclude that Thurman should not have approved Williams'
opinion as to the initiator for the booster.

Regarding other conclusions in Williams' report, Williams said the initiator for
the primadet or detonating cord was a non-electric detonator. Thurman
acknowledged in his OIG interview that this is a possibility, but said that [i]t
may not be the absolute one possibility. And Thurman did not see any reason
why it could not have been an electric initiator. Williams also concluded that a
non-electric burning-type fuse of either hobby fuse or a commercial safety fuse
was used. Thurman acknowledged at his OIG interview that this was one of the
possibilities [b]ut certainly not the only one. Further, Williams' conclusion that
the time delay was 2 minutes, 15 seconds was just one of many possible
scenarios. Accordingly, Thurman should not have approved any of these
conclusions.

Additionally, we believe Thurman should have recognized the internal
inconsistency in the statement Traces of PETN were located on specimen Q18,
however could not be confirmed. He should have required that the sentence be
rewritten so that it made sense.
B. Thurman's Method of Review

Thurman's method of reviewing Williams' report was deficient. For example,
regarding Williams' VOD opinion, Thurman told us in his OIG interview that
before approving the report,

I asked him [Williams] specifically about that. . . . I said, Is there
a reason that you have for putting this arbitrary figure in there?
And he said yes.

And I said, Now, we don't normally do that. . . . I've never done it
before.

. . . And he went into an explanation. . . . [H]e felt that anyway he
had the expertise to call that at 13,000 feet per second.

. . . I may have told him that I wouldn't do that. I don't remember
whether I told him, because I know I would not. . . . I would not
be that specific on 13,000 feet per second.

. . . [A]s long as he portrays to me that he is in fact comfortable
with that, I'm not going to change it. . . . In this case, you know,
there was review and even though . . . I am the direct line
supervisor, even though I don't personally in the exam would do
that, it's up -- it's up to him as an examiner to do that.

I said, Now, let's don't make an absolute decision today that it's
going to have to stay in there. I said, You think about what I have
suggested and you go back and you go through your data and you
go through your -- not really, it's not a mindset, but what you
think that you want to put into this report and then come back and
tell me.

And he came back with the -- with the final report. And it was still
in there. And I said, Okay, I guess you've decided to leave it in
there.

He said, Yeah. I feel that I can support it and it belongs there.

I said, That's your conclusion.

And so the specific VOD opinion remained in the report.

This is an improper way for a supervisor to review an examiner's report. The
issue for the supervisor should not be whether the examiner is comfortable with
the conclusion but whether the supervisor is. It should not be up to him as an
examiner to do that, but up to the supervisor to determine whether the
conclusions in the report are valid. By leaving the matter to Williams, Thurman
failed to perform an appropriate review.

Throughout his OIG interview, Thurman attempted to justify his approval of
the report by saying he based it on the conversation he had with Williams about
the report, but then pleaded a lack of memory of the details of the conversation.
Thus, in the interview he could not justify some of the conclusions in the
report, but he implied that Williams provided justification in the conversation
although Thurman could not remember what it was. We find this
unsatisfactory. Most of the conclusions criticized above came at the end of the
report without explanation, and the preceding pages do not support them. For
example, at one point Williams stated that ANFO, among other explosives, has
the VOD he estimated for the main charge. Then, suddenly, without
explanation, he concludes that the main charge was ANFO. If, in fact, Williams
provided to Thurman additional reasons justifying his conclusions, Thurman
should have required Williams to include those reasons in the report. Thurman
acknowledged in his OIG interview that the conclusions in a report should be
based on, and flow from, the contents of the report. Thurman, however, failed
to make sure that this was done in this case.

IV. Martz's Examination of Evidence

Shortly after the Oklahoma City bombing, Martz examined some evidence in
the case for explosives residue. The evidence consisted of clothing and a knife
seized from one of the defendants. Martz did this as an extra pair of hands
while Burmeister was busy outside the Laboratory. Martz's function was to
perform instrumental examinations to assist Burmeister who was in charge of
the residue analysis. Some issues have arisen concerning Martz's examinations.

A. Supervisory Special Agent Burmeister told us in a 1995 interview that Martz
erred in some examinations in the Oklahoma City case. In a 1996 OIG
interview, however, Burmeister stated, I don't think he erred in any of these
exams. . . . I think he did an acceptable job there. In the later interview
Burmeister said that his first interview was based only on Martz's sparse notes
and that, between the first and second interview, Martz told Burmeister he did
more than what is reflected in the notes. Burmeister told us in 1996, [W]hen I
had an opportunity to talk with him [Martz], I didn't find that there was
anything wrong with what he did. Burmeister acknowledged in 1996, however,
that Martz did not, but should have, followed the provision in the explosives
residue protocol that directs examiners to view specimens microscopically
before any residue is extracted.

The explosives residue protocol requires the examiner to perform a microscopic
examination of the specimen before any residue is extracted from it. Martz
failed to do this. He only made a visual examination of the clothing and knife
before he vacuumed the former and swabbed the latter. When asked about his
failure to perform the microscopic examination, Martz initially told us that the
explosives residue protocol does not require microscopic examinations. When
we requested a copy of that protocol, Martz stated that [n]o protocol in the
Chemistry/Toxicology Unit (CTU) requires any examiner to perform a certain
type of analysis, and he failed to send us a copy of a protocol. In a response to
the preliminary draft of this Report, Martz stated: My interpretation of visual
and microscopic analysis, which was part of the protocol at that time, was that
if something was observed by visual examination, that microscopic analysis
would be performed and that is what I did in this case. Martz Reply (Feb. 4,
1997) at 3. By this Martz apparently means that because he did not observe
anything on the visual examination, he did not do a microscopic examination.
Because this is Martz's third explanation for his failure to perform a
microscopic examination and is an explanation that is inconsistent with the
other two, it lacks credibility. Moreover, Martz's present interpretation of the
protocol is unpersuasive, because one of the purposes of the microscopic
examination is to detect objects not observed in an unaided visual examination.

As noted, Martz vacuumed the clothing. In his 1995 interview Burmeister,
described this as an unqualified technique. In his 1996 interview, however,
Burmeister said that vacuuming is a qualified . . . credible technique. As noted
by Burmeister, if an examiner finds material through visual or microscopic

examination, the examiner should first remove the material with forceps or a
scalpel, before vacuuming, to preserve the integrity of the sample and to avoid
commingling two different residues. Although there is no reference to
extraction techniques in the explosives residue protocol, the techniques are
addressed in the training of explosives residue analysts. Martz had not
undergone the one-year training in explosives residue analysis.

Regarding the knife, Burmeister said in 1995 that Martz should have rinsed it
rather than used a moistened swab. In 1996 Burmeister said that both swabbing
and rinsing were permissible, but added that the decision on which technique to
use should be based on a microscopic examination of the knife. The protocol
does not address the issue of which technique to use.

We conclude that Martz erred by (1) deviating from the protocol requirement of
a microscopic examination without first consulting with Burmeister, (2)
initially telling us that such an examination is not part of the protocol, and (3)
not including all of his examinations in his notes.

B. In a letter to the OIG dated June 18, 1995, Whitehurst stated as follows:

During conversations with Steve Burmeister last Thursday and
Friday Steve advised me concerning some of his findings in the
investigation of the Oklahoma City bombing matter. He advised
me that he has indeed found PETN explosive on the shirt of
McVeigh. He advised me again that he did not find PETN on the
knife of McVeigh as had Roger Martz but did find nitroglycerine
despite the fact that Martz did not find such material. Burmeister
also advised me that he did not find PETN on the trousers of
McVeigh but he did find nitroglycerine in and around the pockets
of the pants. These findings are consistent with though not proof
of the fact that these items of evidence could have been
contaminated either purposely or innocently by Unit Chief Roger
Martz of the FBI's Chemistry/Toxicology Unit during his original
unsupervised handling and analysis of these items of evidence

Whitehurst's doubly hedged opinion ( consistent with . . . could have been ) is
speculative. Burmeister told us that he was not surprise[d] that he did not find
PETN on the knife after Martz had swabbed it. Although Burmeister found
nitroglycerine on the clothing after Martz failed to do so, Burmeister told us he
performed different examinations. Finally, if there was contamination, it was
not necessarily by Martz.

V. Conclusion

Williams' report contains several serious flaws. His opinion as to the VOD of
the main charge was unjustifiable; his statement of the VOD of ANFO was
incomplete; his categorical identification of the main charge as ANFO was
inappropriate; his estimate of the weight of the main charge was too specific
and based in part on improper grounds; his conclusion as to the containers for
the main charge was unjustifiably categorical; his categorical identification of
the initiator for the booster was improper; his conclusions concerning a nonelectric detonator, the fuse, and the time delay were scientifically
insupportable; his conclusions were not supported by the contents of the report;
and he included some AE dictation in a selective or confusing way. These
errors were all tilted in such a way as to incriminate the defendants. We are
troubled that the opinions in Williams' report may have been tailored to
conform to the evidence associated with the defendants. We conclude that
Williams failed to present an objective, unbiased, competent report.

We also conclude that Thurman did not properly review Williams' report.
Thurman left too much discretion to Williams to include certain opinions, and
Thurman allowed several categorical conclusions to stand, although he told us
he does not agree with them, he could not justify them, and the conclusions are
not supported in the body of the report. Thurman did not perform the complete
supervisory review, as required by the policy of the FBI Laboratory, to
determine if the examiners conclusions can be supported and have been
properly documented. We are deeply troubled that in a case of this importance
and magnitude the EU Chief did not take greater care in making his supervisory
review.

As to Martz's examinations, we conclude that he erred by failing to perform the
microscopic examination required by the applicable protocol without
Burmeister's approval, by initially telling us that such an examination is not
part of the explosives residue protocol, and by not including all of his
examinations in his notes.

#####

SECTION H: OTHER MATTERS

SECTION H1: YU KIKUMURA

I. Introduction

In 1988, Yu Kikumura, a member of the Japanese Red Army (JRA) terrorist
organization, was found with three homemade bombs in a car in a service area
of the New Jersey Turnpike. Kikumura was later indicted on several counts of
interstate transportation of explosive devices and passport violations. After a
bench trial on stipulated facts, Kikumura was convicted on November 29, 1988.
He is currently serving a sentence of 262 months.

Kikumura's first sentencing hearing was held on February 7, 1989. At that
hearing, the government offered testimony by J. Thomas Thurman, who was
then an examiner in the Explosives Unit (EU). As the principal examiner in this
case, Thurman had prepared a Laboratory report, dated June 15, 1988,
concerning the bombs and other evidence removed from Kikumura's car.

In a letter to the OIG dated February 17, 1996, Whitehurst alleges that
Thurman lied on the stand about examinations done by the Laboratory, violated
FBI procedures or protocol by testifying outside his expertise, misled the jury,
and incorrectly suggested that the defendant intended to make a large and
powerful bomb from ammonium nitrate, aluminum powder, and mercury
fulminate.

We reviewed the Laboratory report prepared by Thurman and the related
dictation and work papers of other examiners. We also reviewed transcripts
from the hearings before the district court related to Kikumura's conviction and

sentencing and the published decisions by the United States District Court and
the United States Court of Appeals for the Third Circuit. Finally, we
interviewed Thurman and Terry Rudolph concerning their work on the case.

We find no basis for the allegations that Thurman testified falsely or violated
FBI policies in this case. In some areas, Thurman's testimony contains
ambiguities or minor inaccuracies. We do not believe that his remarks in these
areas reflect knowing and intentional misconduct. As with other cases we have
reviewed, we think this case illustrates the desirability of clearer guidelines for,
and effective monitoring of, examiner testimony. The case is also another
example where the Laboratory would have benefitted from more rigorous
policies for case work documentation, file review, and record retention.

II. Factual Background

On April 12, 1988, a New Jersey state trooper detained Kikumura after
stopping him for a motor vehicle violation. The officer noticed several
gunpowder containers and lead shot in a bag on the backseat of Kikumura's car.
He also saw a cardboard box containing three red cylinders with black tape and
wires on them. Kikumura invited the officer to examine these items. The officer
concluded that they might be bombs and arrested Kikumura.

The three red cylinders and other evidence from Kikumura's car were sent to
the FBI Laboratory for examination. As the principal examiner, Thurman
prepared a report dated June 15, 1988. This report incorporated the work of
many other examiners, including Lynn Lasswell in the Chemistry-Toxicology
Unit (CTU) and Terry Rudolph in the Materials Analysis Unit (MAU). Among
other things, Lasswell confirmed that powder from the red cylinders was a mix
of six identifiable types of smokeless powders and one unidentified smokeless
powder. Rudolph determined that three pea-sized objects found in a paper bag
in the car were prills of ammonium nitrate.

The red cylinders were fire extinguishers that had been emptied and refilled
with about three pounds of gunpowder, wadding, about three pounds of lead
shot, and a flashbulb connected to some wires running out of the top. On one of
the bombs, there was an assembled fusing system made from an electric timer,
a toggle switch, some batteries, and jack connectors. This timer, Thurman
concluded, would allow the bomb to be detonated up to an hour after it was set.
The car also contained materials from which similar fusing systems for the
other two bombs could be made.

On October 21, 1988, the district court denied Kikumura's motion to suppress
the evidence discovered in his car. On the scheduled trial date of November 28,
1988, Kikumura proposed through his counsel that the parties stipulate to
certain facts, waive trial by jury, and have a bench trial on the stipulated facts.
For purposes of the bench trial, the parties stipulated that Kikumura had
transported the explosives with knowledge that they could be used to damage
or destroy property. Kikumura agreed that the government would be free to
offer whatever evidence it deemed appropriate at a later sentencing hearing,
including evidence of his intent to kill.

On November 29, 1988, the district court convicted Kikumura on all counts
based on the stipulated facts. A sentencing hearing was held on February 7,
1989. The government offered two witnesses at this hearing: New Jersey
Detective Joseph Fuentes and Thurman. Fuentes described how Kikumura had
entered the United States on March 8, 1988, by using a stolen and altered
passport. Over the next 30 days, Kikumura traveled some 7,000 miles through
at least seventeen different states. During this journey, he bought at various
places components of the bombs and other items found in his car. Fuentes
described evidence suggesting that when Kikumura was arrested, he was en
route to New York City, where he intended to detonate his bombs at a military
recruiting office and then depart by plane on April 15, 1988. Fuentes also
testified that in a search of Kikumura's car, two brown paper bags had been
found that contained residues of what the FBI Laboratory later determined was
ammonium nitrate.

Thurman testified about the bombs found in Kikumura's car. After describing
their construction and stating that the completed timer was functional, Thurman

discussed the destructive force of the bombs. He said that if the bombs were
detonated in an occupied large room with a ten foot ceiling, there would be
numerous casualties and significant property damage. He compared the bombs
to Claymore mines and opined that, while they were capable of destroying
property, they were meant as anti-personnel devices.

At the sentencing hearing, Thurman also testified about the significance of
other chemicals found in Kikumura's car: aluminum powder, ammonium
nitrate, and mercury. Kikumura possessed two pounds of fine aluminum
powder. Thurman testified that if this powder were mixed with the right
amount of ammonium nitrate, it could produce a 50-pound bomb capable of
producing mass casualties and destruction in a room in which it was exploded.
Only traces of ammonium nitrate were found in Kikumura's car, but Thurman
testified that it is normally sold in 50-pound bags, and said it was logical to
conclude from finding traces that a person likely once had a much larger
quantity.

Kikumura also possessed mercury obtained by emptying thermometers.
Thurman testified about two possible uses for this mercury. First, when
combined with nitric acid and alcohol, it could be converted into mercury
fulminate, a high explosive commonly used in blasting caps. Thurman admitted
that Kikumura did not have all the chemicals needed to make mercury
fulminate. Thurman also said that mercury might be used as a booby-trap to set
off a bomb when it was moved.

Through affidavits, the government also introduced evidence at the sentencing
hearing that Kikumura, as a member of the JRA, had received training in the
manufacture of explosives at a terrorist camp in Lebanon and that he had been
arrested in Holland in 1986 after attempting to smuggle over two pounds of
TNT into Amsterdam. Kikumura did not call any witnesses or otherwise offer
any evidence at his sentencing hearing.

After finding that Kikumura had possessed the bombs with an intent to kill or
maim a large number of persons, the district court sentenced him to 360 months

imprisonment. This sentence was reversed in 1990 because the Court of
Appeals held that the district court had incorrectly applied the federal
sentencing guidelines. On March 1, 1991, the district court resentenced
Kikumura to 262 months imprisonment. This sentence was affirmed on
October 15, 1991.

III. Analysis of Whitehurst's Allegations

Whitehurst did not do any work on the Kikumura case. During an interview, he
told us that he had not reviewed the underlying Laboratory reports or auxiliary
examiner dictation, and that he also had not discussed the case with Thurman.
Instead, he said that his criticisms were based solely on a review of the
transcript of Thurman's testimony at the February 7, 1989, hearing.

The criticisms made by Whitehurst are summarized and discussed below.
A. The Claim that Thurman Misled the Jury or
Deprived Kikumura of a Fair Trial

Since this was a sentencing hearing, we find no basis for Whitehurst's
assertions that Thurman by his testimony misled the jury or otherwise deprived
Kikumura of a fair trial. Because Thurman testified at a sentencing hearing, the
Federal Rules of Evidence did not strictly apply. More importantly, for the
reasons presented in the following sections, we do not believe that Thurman's
testimony at the sentencing hearing was materially misleading.

B. The Claim that Thurman Improperly Failed to
Disclose Aspects of His Education or Training

Whitehurst maintains that Thurman should have stated during his direct
examination that his undergraduate degree was in political science and that he
had no formal training in various areas on which he testified.

Thurman was asked on direct examination what formal education he had
received that prepared him for his opinions in this case. He replied that he had
received a master's degree in forensic science from George Washington
University. He also was asked about his experience in the military and in the
FBI Laboratory. Before the court accepted Thurman as qualified as an expert in
the identification, construction, operation and the capabilities of explosive
devices, defense counsel was allowed to conduct voir dire questioning.

Defense counsel did not ask Thurman any questions about his undergraduate
education or his formal training beyond what Thurman described on direct
examination. Given the questions asked during the direct examination and the
voir dire, we do not think Thurman was obliged to volunteer additional
information about his educational background.

C. Claims that Thurman Improperly Testified
Outside His Expertise

Whitehurst complains that Thurman violated FBI protocols and procedures by
testifying outside his expertise with regard to matters involving chemistry,
electrical engineering, and the composition or manufacture of certain
explosives.

As noted earlier in this Report, the FBI did not have any clearly stated policy
concerning the permissible scope of testimony by a principal examiner about
work done by auxiliary examiners. The unwritten practice described by many
whom we interviewed was that, in their testimony, principal examiners could
restate conclusions reached by others who contributed to the Laboratory report.
Moreover, we note that a principal examiner may properly base his or her own

opinion on analytical work done by other examiners. Similarly, expert opinions
may sometimes properly rest on experience, as distinct from formal education
or analytical tests specific to a particular case.

With that background, we do not think that Thurman improperly testified
outside his expertise with regard to the identified matters. Thurman was asked
if, after seeing the ingredients of the bombs, he later conduct[ed] a more
thorough and scientific examination of the materials that were found in the
defendant's car. After Thurman replied he did, he was asked if he had formed
an opinion about the composition of the bombs taken from Kikumura's car.
Thurman again answered affirmatively and said that the main charge was a
combination of seven types of smokeless powder. Whitehurst asserts that
Thurman simply lied on the stand because he did not conduct the examinations
and has no training in chemistry.

We do not think Thurman lied by his use of the phrase I did when asked if he
later conducted a more thorough and scientific examination. Thurman did in
fact conduct additional examinations of the evidence. He also enlisted others to
work on the case as auxiliary examiners. As for his opinion about the
composition of the bombs, Thurman correctly restated the conclusions set forth
in his Laboratory report, which in turn reflected analytical work done by
chemist Lynn Lasswell. The report itself was introduced as an exhibit, and
Thurman stated on cross-examination that he helped prepare the report. To
avoid any possible misunderstanding about who did the work, Thurman should
have said that the laboratory had conducted a more thorough examination of the
items or that his conclusions reflected work done by others.

With respect to the discussion of smokeless powder, Whitehurst also asserts
that the only Laboratory personnel who were deemed competent to render
opinions about the chemical analysis of explosives were individuals in the
MAU. We have discussed this issue previously with regard to the VANPAC
case. When the work was done on the Kikumura case, the CTU also was
analyzing materials to identify smokeless powders. We find no basis to
conclude that Thurman violated FBI policies or procedures in having Lasswell
analyze the powders found in the bombs or in restating the conclusions of the
Laboratory report in testifying at the sentencing hearing.

Whitehurst also contends that Thurman is not an electronics expert and
therefore should not have testified that he thought that the person who
constructed the bombs, including the fusing system, had a very high level of
expertise. This criticism fails to note that Thurman then explained, without any
objection by defense counsel, the basis for his conclusion. Thurman explained
that the fusing system had 14 soldered connections, including leads into the
circuit board of the clock, insulated connections, and a safety switch. Thurman
observed that the bomb maker would have to have considerable electrical
experience and knowledge to effectively solder the leads to the circuit board.
He also noted that a voltmeter was found in Kikumura's car, that a voltmeter is
used to determine that there is a complete circuit, and that no instruction
manuals were found in the car.

On cross-examination, defense counsel returned to the issue of Thurman's
opinion concerning the bomb maker's expertise. Thurman agreed with the
defense counsel that Kikumura was a very skilled bomb maker compared with
the average citizen on the street. In response to further questioning, he also said
that he thought Kikumura was more than a high intermediate when compared
with people skilled in making bombs.

We do not think Thurman testified improperly in stating his opinion that
Kikumura had a high degree of skill or expertise in bomb making. The
construction of explosive devices is well within the expertise of an explosives
examiner. The views stated by Thurman seem to have a reasonable basis in the
evidence otherwise described in his testimony and Laboratory report. Thurman
did not claim that his opinion was based on his being an electronics expert.
After stating his opinion, Thurman discussed its basis during both his direct and
cross-examination.

Whitehurst complains that Thurman was not qualified to testify about the
identification of traces of ammonium nitrate found in Kikumura's car. Thurman
testified, [t]he type of ammonium nitrate that we found here is commonly the
type of ammonium nitrate agricultural-grade, that you would find in hardware
stores, farm supply houses, but it's an agricultural-grade of ammonium nitrate.

The Laboratory report stated that physical and instrumental analysis had
determined white prills were agricultural-grade ammonium nitrate, which is a
common ingredient in the clandestine manufacture of high explosives.

Thurman's testimony about the identification of the traces of ammonium nitrate
was based on an auxiliary examination by Terry Rudolph. Dictation prepared
by Rudolph stated that prills removed from a paper bag were identified as
ammonium nitrate. The dictation also stated that, [t]hese prills were coated with
diatomaceous earth and are probably of agricultural origin. The dictation
further noted, as did the Laboratory report, that no residues or traces of
explosives or ammonium nitrate were found on various other items. Rudolph's
conclusions were reviewed and approved by Jerry Butler, who was then chief
of the MAU.

Thurman further testified that agricultural grade ammonium nitrate could be
found in farm supply houses and hardware stores. On cross-examination,
defense counsel asked Thurman to confirm that the defendant had only three
prills of ammonium nitrate and to explain how large a quantity that was.
Thurman responded that ammonium nitrate normally comes in 50-pound bags
and a prill is about the size of a pea. On re-direct, he again stated that
ammonium nitrate in this form normally is sold in 50-pound quantities.

The statements by Thurman about where ammonium nitrate can be purchased
and the quantity in which it usually is sold are not based on language in the
Laboratory report. Thurman believes that he received this information from
talking with Rudolph. The latter could not recall if he discussed these matters
with Thurman. After reviewing Thurman's testimony, Rudolph also told us he
thought it was accurate. Our own contacts with fertilizer manufacturers and
distributors confirmed that agricultural grade ammonium nitrate is usually sold
in 50-pound bags.

We do not find that Thurman testified improperly about the identification of
ammonium nitrate, where it can be purchased, and the quantity in which it is
usually sold. Thurman could properly testify to these matters based on the

analytical work done by the MAU and information he obtained from talking
with Rudolph or others. Moreover, for reasons previously discussed, we do not
think Thurman violated any FBI protocols or policies by testifying on this
subject.

Thurman in his report and testimony did not use the same language contained
in the auxiliary examiner dictation concerning the agricultural origin of the
ammonium nitrate. As noted above, Rudolph's dictation states that the
ammonium nitrate was probably of agricultural origin, while Thurman's report
and testimony state more positively that the prills were agricultural grade
ammonium nitrate. Thurman told us he thought Rudolph approved the language
used in the report. Rudolph cannot recall that conversation, but thinks it may
have occurred. In these circumstances, we cannot conclude that Thurman
intentionally overstated Rudolph's conclusions about the ammonium nitrate.
This case, like others, illustrates the importance of principal examiners
accurately reporting, whether in Laboratory reports or trial testimony,
conclusions reached by other examiners. Moreover, if an auxiliary examiner
agrees to a later modification or rewording of his or her conclusions, the file
should reflect the basis for that action.

D. Claims that Thurman Improperly Testified
about the Possible Use of Other Materials in
Explosive Devices

During his direct examination, Thurman testified that Kikumura had additional
materials in his car that are commonly used in the manufacture of explosive
devices. These materials were ammonium nitrate, aluminum powder, and
mercury. He explained that with ammonium nitrate and the two pounds of
aluminum powder found in the car one could make at least a 50-pound bomb.
He also explained that mercury is an ingredient of mercury fulminate, a high
explosive, and can also be used to make a booby trap for a bomb.

Whitehurst complains that Thurman left the jury with the incorrect impression
that the defendant may have intended to construct a large and powerful bomb

composed of ammonium nitrate and aluminum powder which was to be
initiated with a mercury fulminate blasting cap. Based on Thurman's testimony,
one could certainly conclude that Kikumura intended to make another bomb
having a mercury fulminate detonator or a mercury switch and a charge made
from a mixture of ammonium nitrate and aluminum powder. We do not agree,
however, that this impression would be incorrect because Thurman's testimony
was biased or otherwise flawed.

During his cross-examination, Thurman acknowledged that Kikumura did not
have in his possession any bombs made from ammonium nitrate and aluminum
powder. Thurman stated that only three prills of ammonium nitrate had been
found in the car and agreed that a bomb could not be made with that amount.
He further conceded that, based on the materials in the car, Kikumura could not
detonate or even make a 50-pound bomb of aluminum and ammonium nitrate.

Defense counsel also asked Thurman if mercury fulminate was the same as
mercury. Thurman replied, No sir. It starts with mercury and it is converted
through a chemical process into mercury fulminate. The attorney asked him to
explain the chemical process, and Thurman said two other ingredients, nitric
acid and alcohol, are added. Thurman then explained, You add the nitric acid to
the mercury fulminate. After that ceases its reaction and then you put in the
alcohol. Thurman acknowledged that no nitric acid was found on Kikumura.
Defense counsel then asked if there was any alcohol, and Thurman stated that
common variety rubbing alcohol had been found. He also agreed that mercury
mixed with alcohol would not produce mercury fulminate or a detonator.

Two aspects of Thurman's testimony about the manufacture of mercury
fulminate merit comment. First, he misspoke in stating that nitric acid would be
added to mercury fulminate as part of the chemical process. He apparently
meant to say that nitric acid would be added to mercury, and after that reaction
ceased, alcohol would be added to the mixture to produce mercury fulminate.
Second, the isopropyl alcohol found in Kikumura's possession could not be
used to make mercury fulminate. Whitehurst complains that by failing to note
this point, Thurman misled the jury. That claim is unfounded: Thurman
accurately answered the specific questions that defense counsel asked about the
alcohol, which was an issue raised initially on cross-examination. In order to

avoid the possibility that his testimony would be misunderstood, Thurman
could have expressly stated that mercury fulminate could not be made from the
rubbing alcohol found with Kikumura.

Whitehurst complains that Thurman failed to acknowledge that ammonium
nitrate could be picked up from a lawn or an agricultural community and
transported in Kikumura's shoes. The prills were found in the car inside a paper
bag. We reject Whitehurst's suggestion that Thurman was obliged to volunteer
that prills can be picked up in a person's shoes.

During his cross-examination, Thurman acknowledged that an explosive device
could not be made with the three little peas of ammonium nitrate found in
Kikumura's possession. On redirect, Thurman again said that ammonium nitrate
prills are normally found in 50-pound quantities. The prosecutor then asked,
And if you find traces of ammonium nitrate prills in someone's automobile,
that's an indication that the person who is responsible for putting those prills
there is also or likely had a much larger quantity of ammonium nitrate. Is that
correct? After the court overruled an objection by the defense counsel,
Thurman responded, That's the logical conclusion.

Whitehurst asserts that through this testimony, Thurman rendered an opinion
that is too categorical and reached a logical conclusion that is obviously being
presented to establish guilt. Whitehurst argues that prills can be picked up in a
person's shoes from walking over a fertilized area and that ammonium nitrate
can be purchased in small quantities. In making his criticisms, Whitehurst
apparently did not recognize that the prills were found inside a paper bag,
rather than on Kikumura's shoes or the floor of the car. Whitehurst also
evidently misunderstood the nature of the sentencing hearing, which did not
involve a jury or a finding of guilt, since guilt had already been determined. We
do think Thurman should have been more careful in phrasing his response to
the prosecutor's question. Thurman should have said that it was possible that
whoever placed the prills in the automobile also had a much larger quantity of
ammonium nitrate.

E. Other Aspects of Thurman's Testimony

Thurman stated during his direct examination that he did not know the exact
number of investigations in which he had been involved since joining the EU,
but that it was in the hundreds. Whitehurst alleged that Thurman may have
exaggerated the number of cases he had worked. Thurman joined the
Laboratory in February 1981. In our investigation, we reviewed records from
the FBI which indicated that Thurman worked on 129 cases between November
1984 and February 1989. We did not determine the number of cases on which
he worked from the time he first joined the Laboratory in 1981 through October
1984. The FBI records indicate that Thurman accurately stated the number of
examinations in which he had been involved.

Whitehurst contends that Thurman falsely testified that he had not attempted to
force three pounds of powder back into one of the fire extinguisher cylinders
because he did not want to take a chance of it exploding. Members of the EU,
Whitehurst states, make pipe bombs by hand at the FBI bomb range at
Quantico, Virginia, and thereby expose themselves to explosions. For this
reason, Whitehurst says he does not believe Thurman had any concern about
blast damage from the smokeless powder in the Kikumura case. In an interview
with the OIG, Thurman again recalled that he did not attempt to force the
powder into the cylinder because of the possibility of explosion. We found no
basis to question the truthfulness of his testimony in this regard.

We did find minor inaccuracies or ambiguities in four aspects of Thurman's
testimony that were not the subject of complaints by Whitehurst. First, in
discussing the explosion that would result from the bombs found in Kikumura's
car, Thurman described a fireball in somewhat ambiguous terms that might
suggest the explosion would produce two fireballs when it likely would create
only one.

Second, Thurman testified that mercury fulminate is commonly used in the
manufacture of blasting caps. Although mercury fulminate was once so used,
we question whether by early 1989 it was still commonly used in commercially

manufactured blasting caps in North America. We think this is a relatively
minor point, particularly because Thurman accurately stated that mercury
fulminate can be used in a blasting cap for high explosives.

Thurman observed that the bombs found in Kikumura's car did not have as
much directional capability as a Claymore mine. He explained that a Claymore
mine would release steel balls in an arc of approximately 180 degrees, while in
contrast the bombs would release lead shot in about a 360 degree arc. The
bombs were described at the sentencing hearing as having lead shot at the top
end of each cylinder. As described, they would release the shot in a manner
similar to a shotgun shell. Thurman's testimony was incorrect or at least
ambiguous insofar as it suggested that shot would be released in all directions
from the bombs. If he intended to say that the bombs would release shot in a
forward direction in a 360-degree circular pattern, he could have done so more
clearly.

Finally, Thurman was technically incorrect in distinguishing high and low
explosives based on their detonating velocities. Thurman correctly testified that
high explosives have a detonating velocity of over 3200 feet per second, but he
erred in stating that low explosives have a detonating velocity of less than 3200
feet per second. As discussed in Attachment C, infra, low explosives burn
rather than detonate. By attempting to distinguish high and low explosives by
detonating velocity, Thurman implied that both detonate, which is not normally
the case.

IV. Conclusion

We do not find that Thurman testified falsely in the Kikumura case. Nor do we
find that he violated FBI policies or improperly gave biased or speculative
testimony. To the extent we noted ambiguities or inaccuracies in his testimony,
we think they illustrate the importance of having effective guidelines
concerning the scope and monitoring of testimony by Laboratory examiners.
The case also provides yet another example where the Laboratory should have

improved its policies for the documentation of case work, file review, and
record retention.

#####

SECTION H2: NORFOLK TANK FARMS

I. Introduction

In 1991, Whitehurst analyzed flash powders from two pipe bombs found in fuel
storage tanks at a marine terminal in Norfolk, Virginia. He concluded that they
could have come from the same source. He alleges that EU examiner Richard
Hahn improperly pressured or bullied him to state his conclusions more
strongly. According to Whitehurst, Hahn threatened to have him replaced with
a bright high school kid when Whitehurst refused to change his auxiliary
examiner dictation. Whitehurst asserts that Hahn's actions were subornation of
perjury.

To investigate Whitehurst's allegations, we interviewed Whitehurst, Hahn, and
James Corby, and we reviewed the Laboratory reports, auxiliary examiner
dictation, and other documents from the case file. We also asked other
examiners if they knew about this matter or of any instances where examiners
were pressured to change their conclusions.

We find no basis to conclude that Hahn suborned perjury or improperly
pressured Whitehurst to change his conclusions. Hahn's report set forth
Whitehurst's conclusions in the exact language drafted by Whitehurst. More
generally, while some in the Laboratory believed that examiners from the EU
pressured others to reach certain conclusions, no one identified an instance in
which the reported results were changed because one examiner improperly
pressured or influenced another.

The case does illustrate that Laboratory examiners should understand that
disagreements about methodology or the interpretation of data must be resolved
professionally based on pertinent scientific knowledge. As noted in the

recommendations that appear in Part Six of this Report, if the examiners
involved cannot resolve such disputes among themselves, then the unit chief or
chiefs with sufficient expertise should address the issue, with further resolution
by the section chief if necessary. Whatever resolution is reached should be
clearly communicated to the examiners involved.

II. Factual Background

On February 4, 1991, two unexploded pipe bombs were found on fuel storage
tanks at the Allied Marine Terminals in Norfolk, Virginia. The attempted
bombing was later determined to be part of an insurance fraud scheme. During
the investigation, the pipe bombs were disarmed and later delivered to the FBI
Laboratory for examination. Richard Hahn worked on the case as the principal
examiner, and Whitehurst analyzed evidence for explosives residue as an
auxiliary examiner.

After examining certain evidence, Whitehurst prepared auxiliary examiner
dictation stating:

Based upon quantitative and qualitative chemical and physical
analyses it is also the opinion of this examiner that flash powders
identified in specimen K10 and in specimens Q56 and Q70 of FBI
Laboratory matter 10206017 are significantly the same and could
have originated from the same source.

Whitehurst contends that Hahn pressured him to change the word could to
make it stronger. Whitehurst acknowledges that the final report accurately
reflected the language Whitehurst used to state his conclusions. Whitehurst
further asserts that Hahn improperly threatened to replace him with a bright
high school kid and suborned perjury in urging Whitehurst to strengthen his
conclusions. We discuss these allegations further below.

III. Analysis of Whitehurst's Allegations

Our investigation did not corroborate Whitehurst's allegations about this matter.
Whitehurst recalls that Hahn told him that the conclusion that flash powders
could have come from the same source should be stated more strongly because
the defense might make some trouble with, or otherwise be assisted by,
Whitehurst's language. Whitehurst says that he lost his temper, that both
examiners began shouting, that Hahn made the remark about a bright high
school student, and that MAU Chief James Corby had to break up the argument
between Hahn and Whitehurst.

Hahn gives a different account. According to Hahn, he had no dispute with
Whitehurst in the Norfolk case and denies ever threatening Whitehurst. Hahn
acknowledges making a remark about a bright high school kid to Whitehurst,
but says it was in a different case and in a different context than described by
Whitehurst. By Hahn's account, he had talked with Whitehurst about analyses
for a 1989 attempted bombing of a dormitory at the University of Arkansas.
Hahn says Whitehurst stated, All you're going to get out of me is what I get out
of those instruments, and that Hahn in turn responded, if that's all you're going
to do for this laboratory, we could get some good high school chemistry
students to do that. Hahn says that Whitehurst stood up from his desk and
started screaming, shaking his finger, and calling Hahn names. Hahn recalled
that Whitehurst's unit chief came running in to see what had happened.

James Corby confirmed in an interview with us that he had once broken up a
disagreement between Hahn and Whitehurst, but Corby was not sure if it
concerned the Norfolk case. He said that he heard yelling and screaming and
found Hahn and Whitehurst in an argument that was disrupting the entire unit.
Corby further said that he thought the argument concerned the strength of
Whitehurst's conclusions. According to Corby, Hahn was doing most of the
shouting and was trying to intimidate Whitehurst without success. Corby said
that examiners generally resolved between themselves any disputes over
dictation, but he intervened in this instance because the shouting match was
inappropriate.

Corby observed that EU examiners had tried to pressure other examiners, but
did not identify any instance where this had changed the reported results. Corby
said that after Steven Burmeister was qualified to examine explosives residue,
members of the EU tried to get Burmeister to change his wording, but that
Burmeister would not do so. Burmeister denies being pressured in this way and
recalls his interactions with the EU as open discussions. Metallurgist William
Tobin told the OIG during his first interview that the EU constantly pressured
scientists in other units, including himself, to produce conclusions that were
consistent with EU theories. Tobin later indicated, however, that he had been
pressured to come to some conclusion, rather than to reach a particular result.

Given the conflicting statements by the witnesses, we cannot precisely
determine what occurred almost five years ago in the dispute between
Whitehurst and Hahn. The Laboratory report for the Norfolk Tank Farms case
accurately restates Whitehurst's dictation. Whether the dispute between
Whitehurst and Hahn concerned the Norfolk Tank Farms case or the Arkansas
dormitory case, we find no basis to conclude that Hahn suborned perjury or
improperly threatened Whitehurst. Even accepting Whitehurst's version of
events, we do not think that Hahn's actions can be said to evidence an attempt
to cause Whitehurst knowingly to make a materially false statement in his
reported conclusions. Nor do we think Whitehurst reasonably could have
understood Hahn's remark about a bright high school kid to be a serious threat.
Hahn was not Whitehurst's supervisor and had no authority to replace
Whitehurst.

There is nothing generally improper in one examiner raising questions with
another examiner about report language, methodology or the interpretation of
data. Such questions should be motivated by the goal of presenting objective
and reliable forensic results in a clear and concise manner. Where examiners
differ, the issue should be resolved based on relevant scientific knowledge. In
this respect, both Whitehurst and Hahn can be faulted for engaging in a verbal
altercation over report language. If they could not resolve their differences
professionally among themselves, they should have involved their unit chiefs. It
goes without saying that no examiner should attempt to influence another
examiner to alter his conclusions by the use of threats or improper pressure. If

an examiner believes he or she has been subject to such treatment, the incident
should be reported to supervisors and appropriate discipline should be imposed.

IV. Conclusion

We conclude that Hahn did not suborn[] perjury or improperly pressure
Whitehurst with regard to the Norfolk Tank Farms matter. Rather than
engaging in a heated argument, each examiner should have based his position
on relevant scientific knowledge and, if they were unable to reach agreement,
they should have sought resolution from their supervisors. Although we did not
identify any particular case where EU examiners affected the reported results of
examinations by pressuring others, the Laboratory should reemphasize that no
examiner should use threats or improper pressure to attempt to influence
another and that such misconduct will result in appropriate discipline.

#####

SECTION H3: MELISSA BRANNEN

I. Introduction

This case concerns a young girl who disappeared from a Christmas party in
Fairfax County, Virginia in 1989 and who is believed to have been murdered.
Her body has never been found. In December 1989, the FBI examined blood
and fiber evidence found in the defendant's car.

Whitehurst alleges that Alan T. Robillard, as acting unit chief of the Hairs and
Fibers Unit, pressured serology examiner Robert Grispino to change his results
to agree with those of DNA examiner Dwight Adams. In a November 27, 1994,
letter to the OIG, Whitehurst wrote:

Bob [Grispino] told me that his serology exams did not give
enough information to go as far as Adams' opinion went and that
had caused an embarrassment for someone in the chain. Then Bob
found himself being pressured by Robillard to change his results
to agree with Adams because of Adams' data and Bob refused and
he then was taken before Hicks.

We investigated this allegation by interviewing Whitehurst, Grispino, Adams,
Robillard, and Douglas Deedrick and reviewing the pertinent Laboratory
reports and related documents from the case files.

We conclude that neither Robillard nor anyone else improperly pressured
Grispino to change his results in this case.

II. Factual Background

After Melissa Brannen disappeared, a man named Caleb Daniel Hughes who
worked as a groundskeeper in her apartment complex was identified as a
suspect. When the FBI Laboratory was asked to collect evidence, Grispino was
working as an examiner in the Serology Unit. Grispino participated in searches
of Hughes' house and car and collected evidence to analyze for the presence of
body fluids. After examining some paper tissues found in the car, Grispino
concluded that they contained blood stains and that Melissa Brannen was a
possible source. He noted that 40% of the population could also be a possible
source. Grispino's findings were included in a Laboratory report dated January
18, 1990. The principal examiner on this case was Douglas Deedrick of the
Hairs and Fibers Unit.

Dwight Adams, an examiner in the DNA Unit, performed DNA tests that
excluded Melissa Brannen as a source of the blood stains on the paper tissues
found in the car. These results were reported to the prosecutor, who supplied
them to the defense in the case before the trial. Grispino recalls that he learned
of the DNA test results the day before he was to testify at trial.

The Commonwealth of Virginia charged Hughes with abduction with the intent
to defile, and the case was tried in 1991. The Virginia prosecutor, Robert
Horan, called Grispino to testify about his serology findings. Consistent with
his results, Grispino testified that he could not exclude Brannen as a possible
source of the blood stains.

The prosecutor did not call Adams as a witness. Instead, the prosecutor argued
to the court that [t]he D.N.A. man generally didn't have enough material to
really do any type -- I mean, that was the conclusion of the D.N.A., he just
didn't have enough to do it. Adams later testified as a witness for the defense.
Consistent with his analyses, Adams testified that he could exclude Brannen as
a possible source of the blood. After the conclusion of the evidence, the jury
convicted Hughes.

The Brannen case received substantial publicity at the time of trial. Grispino
and others said there was a media uproar based on the seemingly contradictory
results from the DNA and serology tests and the fact that Adams testified for
the defense. One newspaper article contained the headline, Two FBI experts'
testimony at odds.

An April 14, 1991, article in The Washington Post noted that some attorneys
thought that Horan tried to mislead the jury by presenting testimony that
suggested Melissa's blood could have been on the tissues found in Hughes' car
when Horan knew a more specific DNA test showed the blood samples could
not have been from the girl. The same article quoted Horan as saying that the
blood in this case was a non-issue and that he did not believe the DNA
specialist because the agent had limited experience.

In his interview with the OIG, Adams said that his results were accurate, that
Horan knew about the DNA results before trial and never asked Adams to
explain them, and that he thought that Horan should have called him to testify.
Horan's conduct is beyond the scope of our investigation, and we have not
attempted to review its propriety.

III. Analysis of Whitehurst's Allegations

In an interview with the OIG, Grispino emphatically stated that he was never
pressured to change, alter, or slant his report in any manner by anyone in this
case or in any other case. With regard to the Brannen case, Grispino explained
that his results did not in fact conflict with the conclusions reached by Adams,
because the serology tests he performed were only a screening method and the
DNA tests were far more specific.

Grispino recalled that Alan Robillard, who was then the acting chief of the
Hairs and Fibers Unit, did not understand the difference in the level of
specificity between the two examinations. According to Grispino, Robillard
and other supervisors in the Laboratory were concerned about the seeming
contradiction in testimony by Adams and Grispino and the related media
reports. Grispino said that both Robillard and Hicks called him into their
offices to discuss their concerns, but these were resolved once he explained the
science to them.

In his interview with the OIG, Grispino denied telling Whitehurst that he had
been pressured to slant reports or, specifically, that Robillard had pressured
Grispino in the Brannen case. Whitehurst acknowledged in an OIG interview
that he had not worked on the case and that he might have misunderstood
Grispino. Adams also stated that he was never, under any circumstances, asked,
pressured, or instructed to change any of his results in this case or any other
case.

Robillard addressed the Brannen case in an interview with the OIG. He denied
that he had pressured either Adams or Grispino to conform their results.
Robillard also acknowledged that the serology tests in this case were less
specific than the DNA tests, and that the latter should have superseded the
serology results. He said the case prompted the Laboratory to combine the
Serology and DNA Units into one unit and to decide not to issue preliminary
serology reports before DNA testing was completed.

IV. Conclusion

We conclude that neither Robillard nor anyone else pressured Grispino to
conform his opinions to those of Adams in this case.

#####

SECTION H4: PAOLO BORSELLINO

I. Introduction

In July 1992, Italian judge-prosecutor Paolo Borsellino and five police escorts
died in a car bombing in Palermo, Sicily. At the request of Italian authorities,
FBI personnel, including Explosives Unit examiner Robert Heckman and
Whitehurst, traveled to Sicily to participate in the investigation. Whitehurst
examined various items from the explosion scene and reported residues
consistent with RDX explosive. Heckman later testified in Sicily at the trial of
several individuals charged with the bombing. Upon his return to the United
States, Heckman described his testimony to Whitehurst and Burmeister.

Based on that conversation, Whitehurst claims that Heckman may have
testified outside of his area of expertise and improperly rendered an opinion
concerning the explosives residue analysis. Specifically, Whitehurst reports that
the Italian prosecutor asked Heckman whether Whitehurst's findings were
consistent with the use of Semtex, an explosive containing both RDX and
PETN. According to Whitehurst, Heckman responded that he lacked the
expertise to testify about that subject; however, the prosecutor reportedly
requested that Heckman testify about the subject anyway. Thus, Whitehurst
said that Heckman testified that the presence of RDX residues would be
consistent with the use of Semtex because different energetic components in
the same explosive material could deposit themselves in a nonhomogeneous
manner throughout the crime scene. Whitehurst charges that this testimony, in
addition to being outside of Heckman's area of expertise, was unreliable
because of the potential for contamination at the scene.

We obtained from Italian authorities a videotape of Heckman's testimony at the
trial in Italy. We further reviewed the Laboratory reports and dictation and
pertinent work papers in the case. Finally, we interviewed a number of FBI
personnel involved in the investigation, including Explosives Unit examiners

Robert Heckman and Wallace Higgins, Explosives residue examiner Steven
Burmeister, FBI Special Agent Jack Barrett of the Organized Crime/Drug
Operations Section, FBI Special Agent and Rome Legal Attaché Joseph
Genovese, and Whitehurst.

We conclude that Heckman did not testify outside his area of expertise or
improperly render an opinion in this case. Nor do we find that Heckman's
testimony was unreliable due to his failure to consider potential contamination.
As with other cases, we conclude that this case illustrates the need for clearer
guidelines for examiner testimony, particularly when a principal examiner is
asked to report the findings of another examiner.

II. Factual Background

On July 19, 1992, Italian judge-prosecutor Paolo Borsellino and five police
escorts died in a car bombing in Palermo, Sicily. The bomb inflicted significant
structural damage on buildings in the area and damaged or destroyed some 20
to 25 cars nearby. Italian authorities believed that an organized crime group
planted the bomb as a reprisal for Borsellino's investigation of that
organization. Following this bombing, the Italian authorities requested
assistance from the FBI's Organized Crime/Drug Operations Section and the
FBI Laboratory.

In response to that request, various FBI personnel including FBI Special Agents
Jack Barrett of the Organized Crime/Drug Operations Section, Explosives Unit
examiner Robert Heckman, and explosives residue examiners Frederic
Whitehurst and Steven Burmeister traveled to Sicily to assist in the
investigation. Whitehurst brought to Sicily a Barringer Ion Mobility
Spectrometer (IMS) and conducted on-scene explosives residue analysis.
Whitehurst intended to confirm any on-scene preliminary findings from the
IMS through later Laboratory testing with a mass spectrometer.

After several days of sifting through the evidence, the FBI identified and
marked 85 questioned specimens, including fragments of wire, metal, magnets,
cable, circuit boards, batteries, and other items. Whitehurst prepared acetone
extracts from these specimens and left the specimens for further testing by
Italian authorities. Several weeks later, Italian authorities sent Whitehurst
approximately half of the specimens, specimens Q41 through Q85, for
examination at the FBI Laboratory in Washington, D.C. After receiving the
specimens, Whitehurst conducted examinations using gas chromatograph/mass
spectrometry. Whitehurst reported that he found residues consistent with RDX
on three of the specimens, Q46, Q69, and Q72. Whitehurst's dictation states in
pertinent part:

The results of these analyses are consistent with the presence of
RDX on the samples as follows:

Q46 (Your item A5)
Q69 (Your item C8)
Q72 (Marked as item 32 at the crime scene)

Chemical and physical analyses of specimens Q41 through Q45
and Q47 through Q68 did not locate the presence of explosives
residues. Specimens Q74 through Q85 were not analyzed for the
presence of explosive residues.

In mid-May 1995, Italian authorities asked Heckman to testify at trial in
Palermo, Sicily. Shortly before his testimony, Heckman met for several hours
with Italian prosecutors in Sicily. Also present were Joseph Genovese of the
FBI Legal Attache Office in Rome and FBI Special Agent Jack Barrett.
Heckman reportedly told the prosecutor during this meeting that Whitehurst
had conducted the explosives residue examinations and that he could not
interpret Whitehurst's findings. The prosecutor asked Heckman to introduce
those findings at trial anyway. Heckman told us:

I said, if you want, we can have Mr. Whitehurst over here; we can
get him over on the next flight to testify. They said, no, we don't
want him, we don't need him. He said, under our law -- this is
being translated -- under our law, you as the man in charge of the
team that was here and the one that wrote the report giving the
results from another individual can testify to those results -basically read them out of the report. . . . Basically, that's what I
told him that, you know, I am not an expert in that area; that's not
my work; I cannot testify as a an expert in the analysis of
explosive residues. They said, no problem, no problem; we still
want you to testify.

Barrett also reported that Heckman made clear to the Italian prosecutor that
Heckman was not responsible for Whitehurst's findings and was not
comfortable testifying about those findings. Genovese also recalled that
Heckman expressed concern about testifying about the chemical analysis.

On May 17, 1995, Heckman, along with Barrett and Genovese, testified for
approximately one and one-half hours. According to the videotaped testimony,
Barrett and Genovese testified about the role played by the FBI during the
investigation. Following this testimony, Heckman testified concerning his own
forensic examinations of the evidence and his conclusions concerning the
approximate size and placement of the bomb based on the damage.

In the course of that testimony, Heckman also testified about the explosives
residue examinations by Whitehurst. Specifically, Heckman testified that the
FBI collected vials of acetone extracts from swabbings at the scene and
analyzed the vials using the Ion Mobility Spectrometer. Heckman noted that in
selecting items for examination, they looked for debris that showed the effects
of the explosion. When asked if the FBI found any traces of explosives,
Heckman testified that specimens Q41 through Q72 in particular gave
indications on the mass spectrometer of RDX. Heckman added that those
findings required confirmation in the United States. Heckman said that after a
second analysis in the United States, specimens Q46, Q69 and Q72 gave

confirmation of RDX. Heckman further testified that the FBI did not find traces
of any other explosives, but that did not necessarily mean that other explosives
were not used.

In response to further questions, Heckman stated that RDX can be used alone
or with other explosives. Heckman stated that one such explosive is PETN.
When asked what kind of explosive would result from a combination of RDX
and PETN, Heckman said that the most common kind is Semtex. Heckman also
testified that in the United States, RDX is mixed with a plasticizing compound
to create C-4. Heckman testified that C-4 is primarily a military explosive, but
is becoming more common in the commercial sector for use in quarry
operations, mining, and building demolition. Heckman also stated that RDX
usually takes solid block form as a crystalline substance, but can be pulverized
into a powder. When asked whether the RDX traces could have come from the
detonator, Heckman responded that most detonators use RDX as a charge.

At the conclusion of this testimony, the prosecutor excused Barrett, Genovese,
and Heckman. As of April 1997, the trial in Italy is continuing.

III. Analysis of Whitehurst's Allegations

Whitehurst alleges that Heckman testified outside of his area of expertise.

Our review of the videotape of Heckman's testimony did not support
Whitehurst's allegation. Heckman did report the results obtained by Whitehurst.
He also testified that RDX can be used alone or with other explosives,
including PETN; that RDX can be mixed with plasticizers to make C-4; that the
most common explosive combining RDX and PETN is Semtex; and that the
FBI Laboratory's failure to find other residue does not exclude the possibility
that other explosives were used. Heckman did not testify that Whitehurst's
results were consistent with the use of Semtex, as suggested by Whitehurst. Nor

did he testify that components of Semtex, such as RDX, might have deposited
themselves in a nonhomogeneous manner at the explosion site.

The testimony given by Heckman was accurate and was not outside the
knowledge and experience of an FBI explosives examiner. Explosive
examiners are expected to be familiar with the composition of prominent
explosives, to maintain and use specific product data sheets, and to generally
understand compositional characteristics. Heckman did not testify improperly
in this regard.
Although Heckman did not testify beyond his expertise, it is noteworthy that
Heckman did make several minor misstatements during his testimony. Because
these errors were not significant, they do not change our conclusions about
Heckman's conduct. Specifically, Heckman testified that it is becoming
increasingly common for C-4 to be used commercially in quarry and mining
operations. In fact, C-4 is not generally used for such purposes because it is so
expensive. Heckman also stated that RDX usually appears as a solid block, but
can be pulverized into a powder. This statement could be misleading, in that
RDX initially is manufactured as a powder. Heckman further testified that most
detonators use RDX in the charge. This is not correct; rather PETN is most
commonly used for this purpose. Finally, Heckman testified that the FBI had
electronically examined fragments of electronic components and determined
that they were part of a transmitter/receiver. During our interview Heckman
acknowledged that he was mistaken, in that the FBI only visually examined the
circuit board fragments. The foregoing examples highlight the importance of
examiners testifying accurately even within their own areas of expertise.

Whitehurst also claims that Heckman should have refused to testify concerning
Whitehurst's results, because Heckman was not an expert in the area of
explosives residue analysis. We do not agree. The evidence shows that
Heckman made clear to the Italian prosecutors that he did not conduct the
explosives residue analysis in the case and did not have the expertise to
interpret those findings. In response, the Italian prosecutor asked Heckman to
recite Whitehurst's results from the Laboratory report. Laboratory policy
permitted a principal examiner to accurately recite the results of an auxiliary
examiner at trial, as long as the principal examiner did not attempt to interpret
those results. Given these circumstances, it was appropriate for Heckman to
report the explosives residue findings.

Although Heckman was permitted to report Whitehurst's findings, Heckman
should have been more precise in reciting those results. Heckman mistakenly
testified that during initial examinations in Italy, explosives residue examiners
detected traces of explosives using a mass spectrometer. In fact, Whitehurst and
Burmeister used an Ion Mobility Spectrometer to initially screen these
specimens. More importantly, Heckman testified that Whitehurst later
examined specimens Q46, Q69, and Q72 at the FBI Laboratory and that those
samples gave confirmation of RDX. By using this phrase, Heckman
erroneously suggested that Whitehurst had actually identified RDX on those
specimens. In fact, Whitehurst reported that residues from these specimen were
consistent with the presence of RDX on those specimens, a somewhat weaker
finding.

Finally, Whitehurst charges that Heckman's testimony was unreliable in view
of the potential for contamination in this case. We do not agree that concerns
about contamination precluded Heckman from reporting the explosives residue
results. The evidence shows that the FBI personnel at the explosion scene were
aware of the potential for contamination because the site was so large and so
many people were present. FBI personnel told us that they recognized that the
Italian authorities were not as well trained in crime scene preservation and
evidence collection as their FBI counterparts. Moreover, FBI personnel arrived
two days after the bombing and could not be sure that all precautions against
contamination had been taken by Italian authorities. Heckman told us that in
view of these facts, he considered the potential for contamination at the
explosion scene. However, Heckman knew of no specific reasons to be
concerned that the explosives residues gathered and analyzed by Whitehurst
had been affected by contamination. Notably, Whitehurst also failed to reflect
any such concern in dictations that he prepared in this case.

In view of the foregoing, Whitehurst's non-specific concerns about possible
contamination were not a sufficient reason to preclude Heckman from reporting
the explosives residue results. If the prosecutor had asked Heckman to discuss
or interpret those findings, or more specifically the effect of contamination on
those findings, our conclusion might be different. Here, however, the Italian
prosecutor did not ask Heckman to testify concerning the potential for
contamination. The videotape of the testimony shows that the prosecutor

simply asked whether the FBI had found traces of any explosives. In response,
Heckman was permitted to report the results from the explosives residue
examinations.

IV. Conclusion

The evidence does not support Whitehurst's allegations that Heckman testified
beyond his expertise or rendered unreliable testimony due to the potential for
contamination. Under the circumstances of this case, Heckman was permitted
to report Whitehurst's findings while testifying at trial.

As in other cases we have reviewed, however, this case illustrates the
importance of principal examiners accurately reporting the results of other
examiners. Heckman attempted to paraphrase the explosives residue results at
trial, and in so doing, suggested that Whitehurst confirmed the presence of
RDX, when in fact Whitehurst found residues consistent with RDX. Guidelines
should direct examiners to be accurate in describing analyses or conclusions
made by others and to be careful not to stray beyond their own expertise.

#####

SECTION H5: GINO NEGRETTI

I. Introduction

In December 1989, a car bomb exploded, seriously injuring Miami criminal
defense attorney Gino Negretti. In 1994, Florida authorities arrested and tried
Victor Seijas for the attempted murder of Negretti. Seijas was ultimately
acquitted by the jury. EU examiner Alan R. Jordan examined the debris from
the explosion and reported finding remains of a pipe bomb and damage
consistent with a high explosive main charge. Whitehurst conducted explosives
residue examinations and reported finding RDX, residues consistent with
HMX, and residues consistent with a potassium nitrate/sulfur based low
explosive. Shortly before trial, the prosecution and defense entered into a
stipulation that permitted Jordan to testify to Whitehurst's results.

Whitehurst claims that Jordan may have changed or misreported his dictation
while testifying at trial. Whitehurst also alleges that the prosecutor in the Seijas
case may have stipulated to allow Jordan to present Whitehurst's results
because she sought to alter or misrepresent those results at trial.

We reviewed a transcript of Jordan's testimony at trial, along with pertinent
Laboratory reports, dictation, work notes, and memoranda. We also
interviewed various individuals involved in the Seijas case, including the
prosecutor, Florida Assistant State Attorney Catherine Vogel, defense counsel
Jack Blumenfeld, FBI Explosives Unit examiner Alan Jordan, Explosives Unit
technicians Keith Rogers and Wynn Warren, and Whitehurst.

We conclude that Jordan did not change or misreport Whitehurst's results while
testifying in this case. We likewise find no basis to conclude that the prosecutor
stipulated to Whitehurst's results because she sought to misreport those results

at trial through Jordan. Although Jordan's testimony contains a minor
inaccuracy, we find that this inaccuracy does not reflect conscious misreporting
or knowing misconduct. As with other cases we have reviewed, however, this
case illustrates that the Laboratory would benefit from written guidelines for
examiner testimony that, among other things, require examiners to be accurate
in describing the analyses and conclusions of other examiners.

II. Factual Background

On December 15, 1989, a bomb exploded under the car being driven by Miami
criminal defense attorney Gino Negretti. Negretti survived the explosion, but
sustained a broken arm and fragmentation injuries to his hands, arms, and upper
body. In 1994, Florida authorities tried Victor Seijas for the attempted murder
of Negretti. The jury ultimately acquitted Seijas of those charges.

The FBI assisted in the investigation of the crime scene. Preliminary crime
scene examination indicated that the explosive device was a pipe bomb, at least
six inches in length, containing a high explosive main charge. Investigators
shipped seven boxes of evidence to the FBI Laboratory for examination.

Explosives Unit examiner Alan R. Jordan and Whitehurst conducted
examinations for the Laboratory. After examining several items from the crime
scene, Whitehurst reported in his dictation that he found residues consistent
with black powder and potassium nitrate/sulfur based low explosives. Jordan
issued a December 17, 1990, Laboratory report, which reported these findings
verbatim.

Some time later, Jordan told Whitehurst that notwithstanding the finding of low
explosives residue, Jordan believed the damage was consistent with the use of a
high explosive. In particular, Jordan formed the opinion that a low explosive
could not have caused the type of damage he had observed in certain pipe
fragments. Therefore, Jordan asked Whitehurst to examine other items for

possible high explosives residue. Whitehurst examined several additional items
of evidence, including a combined specimen taken from two metal fragments,
Q44 and Q69. In that specimen, Whitehurst identified RDX and residues
consistent with HMX, both high explosives, and stated in his dictation:

The results of chemical and physical analyses of specimens Q44
and Q69 identified the presence of RDX and are consistent with
the presence of HMX. The combination of these two explosives is
found in C-4 plastic explosive manufactured in the United States.

Jordan subsequently issued another Laboratory report, dated July 9, 1991,
which incorporated Whitehurst's dictation although without any reference to
specimen Q44.

Florida authorities later identified Victor Seijas and Richard Wolfferts as
suspects. Wolfferts subsequently agreed to cooperate and told authorities that
Seijas had hired him to manufacture and install the explosive device. In 1994,
the Florida State Attorney's Office charged Seijas with the attempted murder of
Negretti.

In June 1994, the prosecutor Assistant State Attorney Catherine Vogel and
defense counsel Jack Blumenfeld traveled to Washington, D.C. to take the
depositions of Jordan and Whitehurst. Before the depositions, Vogel met with
Whitehurst and Jordan. During that conversation, Vogel asked Whitehurst to
explain his findings. After listening to Whitehurst, Vogel found Whitehurst to
be difficult to understand and therefore decided to ask Blumenfeld to stipulate
to allow Jordan to testify to Whitehurst's findings. Blumenfeld agreed, and
Whitehurst's deposition was canceled. Shortly thereafter, Vogel and
Blumenfeld entered into a written stipulation, which provided in part:

Special Agent Allen [sic] Jordan shall be allowed to testify to the
results of the chemical analysis performed by Fred Whitehurst on
metal fragments from the scene.

At trial in October 1994, Vogel asked Jordan about Whitehurst's findings and
Jordan responded as follows:

Q. Okay. Was this evidence sent to Fred Whitehurst
for chemical analysis?

A. Yes, ma'am.

Q. I am going to show you I believe Q-69, which is
the long length of pipe fragment. I mean pipe nipple,
which is marked as state's exhibit number 173. Was
this sent to Mr. Whitehurst for chemical analysis?

A. Yes, ma'am. I recall sending this to Mr.
Whitehurst.

Q. And did Mr. Whitehurst send you back a positive
chemical analysis on this piece of evidence?

A. What he sent back was his findings of materials,
residues consistent with RDX and HMX. Both of
which are explosive material. HMX is a by product
of RDX.

Q. Now, sir, would the presence of RDX and the
HMX on this nipple fragment be consistent with the
explosive that was used having been a booster?

A. Yes, ma'am. Both are high explosives. And high
explosives were used in this particular device. Those
are the certain characteristics that are imported to
metal and other pieces, I knew that it had to be a
high explosive material and it is consistent with that.

During cross-examination, Blumenfeld also asked Jordan about Whitehurst
findings and Jordan responded as follows:

Q. Mr. Jordan, you talked about RDX and HMX. It
sounds like a commercial for Hooked on Phonics.
RDX and HMX are components, is that correct?

A. Yes, sir.

Q. They are components found in a number of
different explosives?

A. Yes, sir.

Q. They are found in C-4

A. Yes, sir.

Q. C-4 is a plastic explosive?

A. Yes, sir.

Q. This is a -- it is a plastics form like a play dough.

A. It is a molded type of explosive and generally
characterized as a military explosive when someone
talks about a plastic explosive.

Q. If RDX was found in one of these ammo cans that
has been shown to you, it would be consistent also
with C-4 being in that ammo can?

A. Yes, sir.

Q. Was C-4 used in that device?

A. No, sir. I don't believe so.

Q. RDX is also found in military dynamite?

A. Yes, sir.

III. Analysis of Whitehurst's Allegations

Whitehurst claims that Jordan may have misreported Whitehurst's findings at
trial. As observed above, Jordan testified on direct examination that Whitehurst
found residues consistent with RDX and HMX. Jordan later testified on crossexamination that RDX and HMX are components of C-4, a plastic explosive.
Whitehurst, by comparison, reported that his results identified the presence of
RDX residues and are consistent with the presence of HMX. Whitehurst further
reported that, [t]he combination of these two explosives is found in C-4 plastic
explosive manufactured in the United States.

We find that contrary to Whitehurst's suggestion, Jordan did not purposely
misreport Whitehurst's results. While Jordan failed to make clear that
Whitehurst actually identified RDX, there is no evidence that Jordan acted
intentionally or that his lack of precision was material. Vogel observed that in
the context of this case, it was not important whether the residue was identified
as or merely consistent with RDX. According to Vogel, the outcome of the trial
had nothing to do with the kinds of explosives used in the bomb. Additionally,
Jordan denied any intention to understate the strength of Whitehurst's findings.
Even Whitehurst acknowledged that he was not left ill at ease with Jordan's
testimony since if it's identical to RDX it's, of course, consistent with RDX.

Although Jordan did not misreport Whitehurst's findings, Jordan's failure to
distinguish between identified and consistent with does highlight the
importance of accurately reporting the dictation of other examiners. Jordan told
us that in his view, this distinction was not a big deal. We do not agree.
Although the distinction was not especially meaningful in this case, such a
distinction may be important in another case. Thus, where the parties stipulate
to permit one examiner to testify to the findings of another examiner, the
Laboratory should encourage the testifying examiner to accurately recite those
findings.

We also find no basis for Whitehurst's suggestion that prosecutor Catherine
Vogel stipulated to Whitehurst's results because she sought to alter or misreport
those results at trial. Vogel told us that she decided to stipulate to Whitehurst's
testimony based primarily on her conversation with Whitehurst before the
deposition. Vogel explained that she thought Whitehurst was intelligent but
difficult to understand. Vogel stated that Whitehurst used terms that were hard
to comprehend. Vogel recalled that she thought the jury would be overwhelmed
by Whitehurst's testimony, noting that prospective jurors in Dade County,
Florida were not especially well-educated. Jordan, who was present during the
conversation between Whitehurst and Vogel, also told us that Whitehurst's
explanation was confusing:

[Whitehurst] might as well have been talking Chinese -- she had
no clue as to what he was saying. And I had very little clue. And
when Fred left, I remember her making some kind of a comment,
and then I said I couldn't help because I didn't know what he said
either. And I can remember -- I can remember her not wanting to
use him as a witness.

Although Vogel reported that her primary reason for not calling Whitehurst
was her belief that he might confuse the jury, she also concluded that
Whitehurst's testimony was not especially important to the case. Vogel
explained that the principal issue at trial was whether the State's informant
witness, Richard Wolfferts, was telling the truth in implicating Seijas.
Whitehurst's testimony about the explosives used was not especially probative
of that issue, according to Vogel. Vogel explained that Wolfferts was imprecise
in describing the explosives and recalled only that the explosives resembled
dynamite. Because Wolfferts' description was so vague, Whitehurst was not in
a position to corroborate Wolfferts. She therefore decided to forego calling
Whitehurst to further explain his results. In sum, the evidence does not support
Whitehurst's allegation that the prosecutor stipulated in order to misreport his
finding at trial.

Likewise, we find no basis to conclude that Jordan sought to testify in place of
Whitehurst, contrary to Whitehurst's suggestion. Vogel told us that she made
the decision not to call Whitehurst; Jordan did not discourage her from using

Whitehurst at trial. Defense counsel Jack Blumenfeld also told us that he made
the decision not to call Whitehurst for his own reasons. Blumenfeld recalled
that the Laboratory report containing Whitehurst's results was clear, and
therefore it was not necessary to depose Whitehurst or to call him as a witness.

Whitehurst raised an additional issue during our interview. Whitehurst
questioned the basis for Jordan's testimony on cross-examination that Jordan
did not believe that C-4 was used in the device. When we asked Jordan about
this conclusion, Jordan stated that he based his testimony on his observations of
the damage. Jordan said that he did not see the type of damage to metal
fragments consistent with the use of C-4 explosive. Jordan also stated that
based on the estimated size of the device under Negretti's car, a pipe bomb
composed of C-4 explosive would have caused greater damage to the car. We
find no reason to take exception to Jordan's testimony.

Finally, during our interview, Whitehurst reported that other auxiliary
examiners had also complained that their findings had been stipulated to and
possibly misreported. When we asked Whitehurst to identify these other
examiners, Whitehurst stated that he did not recall specifically which
examiners voiced these concerns. Whitehurst added that MAU Chief James
Corby and metallurgical examiner William Tobin had commented that
Explosives Unit examiners frequently testified to the results of other examiners.
During our interviews, we routinely asked other auxiliary examiners from the
MAU, CTU, and EU whether their results were altered or misstated. No other
examiner voiced the concern that stipulations were being used for the purpose
of misreporting forensic results at trial. We conclude that Whitehurst's
allegations in this regard are unfounded.

IV. Conclusion

We conclude that Jordan did not misreport Whitehurst's results in the Seijas
case. The evidence also did not support Whitehurst's allegations that the
prosecutor stipulated to allow Jordan to report Whitehurst's results because she
sought to alter or misrepresent those results at trial. Notably, Whitehurst

himself reviewed the transcript of Jordan's testimony at trial and acknowledged
that his concerns did not prove to be the case with the Negretti matter. To the
extent that we noted an inaccuracy in Jordan's testimony, we think that it
illustrates the need for written guidelines that ensure that examiners accurately
report the conclusions by others in the Laboratory.

#####

SECTION H6: CONLON CASE

I. Introduction

In 1992, James Conlon, a hydraulic crane operator, died in an explosion while
working at a scrap metal yard in New Jersey. New Jersey authorities suspected
that the explosion might have been caused by an explosive device sold as scrap
metal by the nearby military base. New Jersey authorities asked the FBI
Laboratory to attempt to determine the origins of the explosive device.
Explosives Unit examiner Robert Heckman and Whitehurst conducted
examinations in the case. Heckman prepared a Laboratory report in which he
concluded that the explosion was caused by a very brisant high explosive
consistent with those used by the military.

In letters to the OIG, Whitehurst alleges that Heckman made unauthorized
additions to Whitehurst's dictation in the Laboratory report. Whitehurst claims
that Heckman made statements about Ion Mobility Spectrometer (IMS) results
and sample degradation that were outside of Heckman's expertise. Whitehurst
also criticizes Heckman's reported conclusion that the explosion was caused by
an explosive consistent with a military explosive. Whitehurst maintains that
commercial and industrial explosives also could have caused the explosion, and
therefore Heckman's conclusion was too narrow and categorical.

We reviewed the Laboratory reports, police reports, memoranda written by
various personnel in this matter, and depositions in the underlying case. We
also interviewed Assistant United States Attorney Irene Dowdy, who
represented the government in the Conlon civil case, FBI Assistant General
Counsel Laura Blumenfeld, former SAS Section Chief James Kearney, former
MAU Unit Chief James Corby, former EU Unit Chief J. Christopher Ronay,
EU examiner Robert Heckman, and Whitehurst.

We conclude that Heckman made improper additions to Whitehurst's dictation
by adding statements outside his area of expertise to the section of the report
designated Instrumental Analysis. This case illustrates the need for Laboratory
policies that ensure that examiners prepare separate Laboratory reports, that
reports receive meaningful and substantive review, and that disputes between
examiners are effectively addressed and resolved. Finally, we note that
Whitehurst acted inappropriately by accusing SAS Section Chief Kearney of
seeking to suppress a memorandum Whitehurst wrote in this case.

II. Factual Background

On November 8, 1992, James Conlon died in an explosion at the Beacon scrap
metal recycling yard in Freehold Borough, New Jersey. At the time of his
death, Conlon was operating a hydraulic crane with a pincher arm designed to
cut scrap metal. New Jersey State Police believed that Conlon may have
detonated an explosive device hidden in a container in the scrap yard. Conlon
died from injuries from the resulting metal fragmentation. Conlon's wife,
Denise Conlon, subsequently filed a civil wrongful death action against the
United States, Denise Conlon v. United States, Civ. No. 94-3140 (D.N.J.). In
that lawsuit, Denise Conlon claimed that the explosion was caused by a
military ordnance sold as scrap by the nearby Earle Naval Weapon Station.

In November 1992, New Jersey authorities sent the FBI Laboratory various
fragments and items from the scene of the explosion. In their correspondence,
they asked the Laboratory to [a]nalyze [the items] and identify any explosive
residue, in an attempt to establish explosive device/item. Explosives Unit
examiner Robert Heckman reported that he later spoke by telephone with one
of the New Jersey Police bomb technicians. In that conversation, Heckman
learned that the Beacon scrap yard may have accepted a live military explosive
round as scrap metal from the adjacent military base. Thus, according to
Heckman, the bomb technician asked him to determine if this was or could
have been a military piece of ordinance [sic].

Heckman examined fragments from the explosion scene, but reported that he
was unable to find any casing fragments that permitted him to identify the
explosive device. Thus, he submitted the fragments and debris to Whitehurst
for explosives residue analysis. When Whitehurst received this evidence, he
also received the results of explosives residue analyses conducted at the
explosion scene using a Barringer IMS. According to those analyses, the IMS
detected the presence of explosives residue consistent with tetrytol, a military
explosive containing tetryl and TNT.

After receiving the samples, Whitehurst conducted examination using the
Barringer IMS as a screening test and the gas chromatograph/mass
spectrometer (GC/MS) for confirmation. Whitehurst also conducted x-ray
powder diffraction analysis. In his resulting dictation, Whitehurst reported that
the IMS results were consistent with TNT, but because he could not confirm
those results using GC/MS, he was unable to say that any explosives residue
was present:

Gas chromatograph/mass spectrometric analysis of acetone
extracts of specimens Q1, Q3 through Q5, Q10 through Q12, Q14
from Laboratory Number 21113027 and Q18 of Laboratory
Number 21218030 did not detect the presence of explosives
residues. The results of ion mobility spectrometric analysis of
specimens Q1, Q3 through Q5, Q10 through Q12 and Q14 were
consistent with the presence of trinitrotoluene (TNT) but because
the TNT could not be confirmed by mass spectrometry a
conclusion concerning the presence of TNT could not be
rendered.

The results of x-ray powder diffraction analysis of specimen Q19
of Laboratory Number 21218030 are consistent with the presence
of magnesium sulfate hexahydrate.
Heckman reported these results verbatim in the January 29, 1993, Laboratory
report. Heckman, however, added his own observations about the IMS results
from the explosion scene, as indicated in italics:

INSTRUMENTAL ANALYSIS:

Gas chromatograph/mass spectrometric analysis of acetone
extracts of specimens Q1, Q3 through Q5, Q10 through Q12, Q14
from Laboratory Number 21113027 and Q18 of Laboratory
Number 21218030 did not detect the presence of explosives
residues. The results of ion mobility spectrometric analysis of
specimens Q1, Q3 through Q5, Q10 through Q12 and Q14 were
consistent with the presence of trinitrotoluene (TNT) but because
the TNT could not be confirmed by mass spectrometry a
conclusion concerning the presence of TNT could not be
rendered.

The results of x-ray powder diffraction analysis of specimen Q19
of Laboratory Number 21218030 are consistent with the presence
of magnesium sulfate hexahydrate.

It is known to this Laboratory that an Ion Mobility Spectrometer
(IMS) was utilized by crime scene personnel during the crime
scene investigation and an indication of Tetryl, TNT. [sic] It must
be noted that an IMS is merely a screening indicator and nonconfirmatory. Additional more specific instrumental examinations
must be conducted in order to confirm the IMS results.

It is also known to this Laboratory that residues of many
explosives degrade rapidly over time and may result in a negative
finding even though the residues were originally present. Water,
sunlight and temperature are the most common causes of sample
degradation.

Therefore the results of the IMS test conducted at the crime scene
may well have been true. However, without additional positive
instrumental results this Laboratory cannot confirm the presence
of these explosives.

CONCLUSIONS:

Based upon the destruction observed at the crime scene which
was caused by the explosion and a physical analysis of several
fragments submitted to this Laboratory it is the opinion of this
examiner that the explosion was caused by a very brisant high
explosive consistent with those used by the military.
In February 1995, counsel for plaintiff Denise Conlon subpoenaed Robert
Heckman and Frederic Whitehurst for depositions on March 30, 1995. The
purpose of these depositions was to explore statements in the Laboratory report
that the explosion had been caused by a very brisant high explosive consistent
with a military explosive. In preparation, Whitehurst read Heckman's
Laboratory report for the first time and discovered Heckman's additions.
Whitehurst wrote a ten-page memorandum to MAU Unit Chief James Corby,
dated February 13, 1995, setting forth his objections to the Laboratory report.
That memorandum stated in part:

I have reviewed the report that was written by SSA Heckman and
found that he added some statements to the Instrumental Analysis
Section of the report which though, I am sure, were an attempt to
clarify my report, I do not agree with. SSA Heckman's addition of
those statements also places him in a position of having to defend
them given the new rules of discovery in civil procedure. Bob has
noted that the IMS is merely a screening device; degradation of
many explosives residues is rapid; water, sunlight and temperature
are the most common caused of sample degradation, and that the
IMS results from the other analyst may very well have been true
but can not be confirmed. He is on his own on those statements.

Heckman has also noted that it is his opinion that the explosion
was caused by a very brisant high explosive consistent with those
used by the military. I agree with the statement however believe
that it is too categorical, tending to narrow down the blast damage
as originating from a military explosive. . . . [T]hough one may be
able to say from blast damage that the explosive was a high
explosive, one can not say what type of high explosive. I would
have rendered an opinion that the damage was consistent with
both military and industrial types of explosives.

Whitehurst also expressed other concerns and raised the possibility that
individuals at the explosion scene may have contaminated the evidence.

After Corby received Whitehurst's memorandum, he brought it to the attention
of SAS Section Chief James Kearney. Corby told Kearney that Heckman's
conclusion was unsupportable and that Heckman was not in a position to
interpret IMS data. Kearney agreed, but also criticized Whitehurst for preparing
the memorandum in an unofficial format, for failing to provide a copy to
Heckman, and for including personal opinion and comments in the
memorandum. Kearney reportedly told Corby that he did not want the
memorandum floating around to the attorneys unless necessary or requested.
Corby reportedly passed on Kearney's statements to Whitehurst.

Kearney subsequently met with Whitehurst and Heckman. During that meeting,
Heckman acknowledged that he should have concluded that the results were
consistent with both a military and commercial explosive. Heckman, however,
also maintained that he had not written the additional paragraphs under the
Instrumental Analysis section, according to Kearney. Kearney instructed
Heckman and Whitehurst to figure out who wrote the questioned paragraphs
and to work out their remaining differences. The next day, Heckman sent a
memorandum to Kearney acknowledging that he had written the questioned
paragraphs. Heckman added that the paragraphs were not part of Whitehurst's
dictation and should have appeared under a separate heading.

Following this meeting, Whitehurst revised the February 13, 1995,
memorandum. The day before the deposition, Whitehurst showed this revised
memorandum, dated March 29, 1995, to Corby and Laura Blumenfeld of the
FBI Office of General Counsel (OGC). Corby reportedly told Whitehurst that
he had no problems with the March 29, 1995, memorandum. Blumenfeld
acknowledged to Whitehurst that the March 29, 1995, memorandum would be
discoverable under the terms of the subpoena.

On March 30, 1995, plaintiff's counsel took Heckman's deposition. During the
deposition Heckman stated that he had written the paragraphs under
Instrumental Analysis based on information from the New Jersey State Police
bomb technician. Heckman acknowledged that he should not have placed the
paragraphs under that heading because their placement made them appear to be
part of Whitehurst's dictation. Heckman also testified that he reached the
conclusion that the explosion was caused by an explosive consistent with those
used by the military based on the high explosive damage at the scene, including
evidence of metal thinning and deformation. He conceded that an equal number
of commercial explosives could have caused the damage, but stated that he
sought to answer the specific question posed by the New Jersey bomb
technician.

In his own deposition, Whitehurst testified that Heckman should have said that
the explosion was caused by a high explosive consistent with those used by the
military and industry. Whitehurst also stated that he had become so concerned
about contamination from bomb technicians on the scene that he could no
longer render an opinion in the case. Whitehurst then disclosed that he had
written the March 29, 1995, memorandum, along with an earlier version.
Whitehurst testified that he did not bring the earlier version with him, because
he understood that his section chief wanted him to suppress that information.
When asked to explain his use of the word suppressed, Whitehurst responded
that there was a desire not to publish. And in my opinion, that is suppression.

Following the deposition, Whitehurst wrote a memorandum explaining his
conduct in the case. In that memorandum, Whitehurst stated that Kearney did
not order or suggest that Whitehurst withhold the memorandum. Laboratory

Director Milton Ahlerich reviewed the matter and determined that Whitehurst's
suppression allegation did not warrant further investigation.

III. Analysis of Whitehurst's Allegations

Whitehurst alleges that Heckman improperly added three paragraphs to the
Instrumental Analysis section of the Laboratory report.

We agree that the paragraphs added by Heckman were inappropriate for
inclusion anywhere in the Laboratory report, much less in the Instrumental
Analysis section. By referring to the IMS results, Heckman suggested that TNT
and Tetryl may have been present, even though Whitehurst expressly declined
to render such a conclusion. Heckman's statement that the IMS results from the
explosion scene may well have been true undercut the conclusion reached by
Whitehurst. Although Heckman was apparently motivated by an intention to
provide helpful information, the addition of these paragraphs made the report
less, not more, clear.

Heckman's additions to the Instrumental Analysis section of the report also
were improper because the information was clearly outside of Heckman's area
of expertise. Heckman told us that he obtained information about the causes of
sample degradation from Whitehurst, Steven Burmeister, and reading different
books on the subject of explosives, explosive residue and so forth . . . . He said
he believed that he was qualified because of his background, training, and
experience to conclude that water, sunlight and temperatures are common
causes of sample degradation. Contrary to his suggestion, Heckman was not
qualified to interpret the unconfirmed results of explosives residue analysis
from the Barringer IMS. Nor was he qualified to render an opinion about
sample degradation and its causes. These areas were within the expertise of the
explosives residue examiner. As an Explosives Unit examiner, Heckman was
qualified to testify concerning his own forensic examinations of explosive
devices and the reconstruction of explosive devices. Heckman should have left
any discussion of the significance of unconfirmed IMS results to the explosives
residue examiner.

Whitehurst also complains that Heckman's placement of these paragraphs under
the heading Instrumental Analysis erroneously suggested the Whitehurst had
rendered the opinion. Again, we agree with Whitehurst's criticism. During our
interview with Heckman, he acknowledged that he should not have placed
these paragraphs under that heading for this reason. Heckman explained that
inclusion of these paragraphs under this heading was an oversight. We
considered but rejected the idea that Heckman purposely sought to mislead the
reader concerning authorship of the questioned paragraphs. We became
concerned about this issue when we learned that Heckman initially denied even
writing these paragraphs. After Whitehurst questioned these paragraphs,
however, Heckman quickly acknowledged his authorship. He also told us that
he did not intend to mislead the reader on this point.

Whitehurst also claims that Heckman's conclusion -- that the explosion was
caused by a very brisant high explosive consistent with those used by the
military -- was too narrow and categorical. While Heckman's conclusion was
not inaccurate, Heckman could have been more clear and complete if he had
acknowledged in his report, as he did in his deposition, that the explosive could
have been of military or commercial origin. There are several high explosives
used in both commercial and military applications that have similar threshold
detonation velocities, brisance, and capacity to inflict site damage. Heckman,
by referring only to an explosive used by the military, risked conveying the
erroneous impression that he had some basis for identifying the origins of the
explosive as military in particular. An examiner should avoid phrasing
conclusions in a way that might be misconstrued.

In defense of his conclusion, Heckman explained that he tailored his conclusion
to the specific question asked by investigators, namely, whether the explosive
device could have been a military ordnance. We agree that a forensic scientist
should seek to answer the specific question asked by investigators. However,
examiners also should recognize when investigators have requested a
conclusion or explanation that may be open to misinterpretation. In such cases,
the examiner may choose to limit the conclusion to one directly supported by
the data. Alternatively, the examiner may decide to provide other reasonable
explanations to ensure that the significance of the conclusion is not
misinterpreted. In this case, for example, Heckman could have limited his

conclusion to a finding that the explosion was caused by a very brisant high
explosive, or added that the explosion was consistent with both a military or
commercial explosive.

We think this case illustrates the need for clearer Laboratory guidelines in
several respects. First, Laboratory policy should have ensured that the auxiliary
examiner received a copy of the Laboratory report for review before release.
Such a practice would have allowed Whitehurst to discover the improper
additions before Heckman distributed the report. Both Heckman and
Explosives Unit Chief Ronay indicated that at the time of these events, each
principal examiner decided whether to provide the final version of the
Laboratory report to the auxiliary examiner. Later, in the fall of 1994, the
Laboratory issued written guidelines requiring that auxiliary examiners receive
tickler copies of the Laboratory report when released. However, even this
policy would not have ensured review by the auxiliary examiner before
distribution of the report. Thus, in our recommendations in Part Six, we
recommend that the auxiliary examiner prepare and release his or her own
separate report.

The Explosives Unit also would have benefitted from a practice of meaningful
review by Unit Chief Ronay. The evidence shows that Ronay generally
conducted administrative and grammatical reviews of reports, but not
substantive reviews of the conclusions. Such a practice is not acceptable in a
modern Laboratory. Ronay should have questioned Heckman's conclusion that
the explosive was consistent with those used by the military, since the
explosives residue results were inconclusive and the report provided little basis
for distinguishing between a military and a commercial explosive. Ronay also
should have questioned Heckman's statement that the on-scene IMS results
may well have been true, inasmuch as those results had not been confirmed.
The evidence shows that Ronay's review of this Laboratory report was
inadequate.

Additionally, the Laboratory should have had clearer guidelines in place for
addressing disputes between the principal and auxiliary examiners. Those
guidelines should have required that Whitehurst and Heckman discuss their
differences and prepare a supplemental Laboratory report if necessary. The unit

chiefs for both examiners could have reviewed that supplemental report and
resolved any remaining disagreements. In the absence of such guidelines,
Whitehurst initially failed to share his concerns with Heckman. Rather, he
prepared a memorandum for Corby, who immediately elevated the matter to the
level of Section Chief Kearney. Because Whitehurst prepared an informal
memorandum, there were no procedures in place to ensure that it found its way
to Heckman, the Explosives Unit Chief, or the parties in the case. The
foregoing demonstrates an uncooperative atmosphere within the Laboratory
that complicated this dispute and ultimately placed the Laboratory in a bad
light.

Finally, we observe that Whitehurst unnecessarily inflamed the situation by
testifying that Kearney sought to suppress his original memorandum. The
evidence did not support that assertion by Whitehurst. Whitehurst testified that
he made this statement based on his conversations with Corby. Corby,
however, told us that he never told Whitehurst that Kearney wanted to suppress
the memorandum. Corby reportedly told Whitehurst that Kearney did not want
to produce the original version of the memorandum at the deposition unless
requested or necessary. Thus, Whitehurst later acknowledged that Kearney had
not pressured him to suppress the document. Whitehurst added, I am not an
attorney and therefore can not be expected to understand all of the legal
meanings of all of the words in my otherwise normal vocabulary.

It is difficult to credit Whitehurst's assertion that he did not understand the
implications of the word suppress. Even in its ordinary sense, the word
suggested that Kearney improperly sought to withhold this information. In any
event, Whitehurst was both a third year law student and an experienced law
enforcement witness who should have understood the implications of using the
word suppress. In the opinion of Laura Blumenfeld of the FBI OGC, who
attended the deposition, Whitehurst appeared to use that word to incite. The
evidence supports the conclusion that Whitehurst purposely used the word
suppress, aware of its implications.

IV. Conclusion

We find that Heckman made improper additions to Whitehurst's dictation by
adding statements outside his area of expertise to the section of the report
designated Instrumental Analysis. This case illustrates the need for Laboratory
policies that ensure that examiners prepare separate Laboratory reports, that
reports receive meaningful and substantive review, and that disputes between
examiners are effectively addressed and resolved. Finally, the evidence shows
that Whitehurst acted inappropriately by accusing SAS Section Chief Kearney
of seeking to suppress a memorandum Whitehurst wrote in this case.

#####

SECTION H7: JUDGE JOHN SHAW

I. Introduction

In a letter to the OIG dated April 8, 1995, Whitehurst alleged that CTU
examiner Ronald Kelly, without being properly qualified, had prepared a report
that identified smokeless powder in a pipe bomb sent to a federal judge.
Whitehurst further contended that the analysis in the case was flawed because it
did not determine if materials other than smokeless powder were present in the
bomb. He also suggested that Roger Martz, as chief of the CTU, violated FBI
policies by assigning the case to Kelly.

To investigate the allegations, we reviewed the Laboratory report and Kelly's
notes and other work papers. We also interviewed Kelly, Roger Martz, Steven
Burmeister, and Robert Heckman.

We conclude that Kelly did not violate any FBI policies or procedures through
his work on the case. His identification of smokeless powder appears to be
technically correct and is supported by his notes and analytical data. We also
conclude that Martz did not violate any FBI policy in assigning Kelly to work
on the case.

Whitehurst makes a valid point in noting that the analysis performed may not
have identified all substances present in the bomb. Our investigation revealed
that Laboratory personnel had different understandings concerning the
applicable protocols for this type of analysis.

The case illustrates the need to integrate the CTU's different protocols for the
identification of explosives and to clarify the respective roles of the EU and
CTU examiners in determining the type of analysis to be done.

II. Factual Background

Ronald Kelly became qualified as a forensic chemist examiner in the FBI
Laboratory in February 1995. Before then, he had worked in the CTU since
September 1978 as a physical science technician. Because Kelly is not an FBI
agent, he was not eligible to become an examiner until relatively recently.
Kelly told us that his particular expertise is in arson and fire examinations. He
also has worked on the analysis of smokeless powders since 1985. During
1995, he was training to become qualified as an explosives residue examiner.

On March 18, 1995, the FBI Laboratory received evidence related to an
improvised explosive device found on March 16, 1995, at the offices of United
States District Judge John Shaw in Lafayette, Louisiana. EU examiner Robert
Heckman was the principal examiner on the case. The evidence included
samples of what appeared to be smokeless powder that had been taken from the
unexploded device. By this time, Steven Burmeister had been reassigned to the
CTU, where he was performing explosives residue examinations. Roger Martz,
chief of the CTU, recalled assigning the case to Ronald Kelly because
Burmeister was unavailable.

Kelly did not think there was anything unusual about the analysis in the case, as
he had previously worked on many smokeless powder cases. Heckman, Kelly
stated, asked him only to identify, by brand name if possible, the suspected
smokeless powder in the device. Accordingly, Kelly did not understand
Heckman to have requested a comprehensive analysis of the materials to
determine if substances other than smokeless powder may have been present.
Heckman's recollection was slightly different. He initially stated that he had
sent the sample for an explosive analysis in general, and he thought that Kelly
had made the decision to conduct only the smokeless powder analysis.
Heckman added that because the bomb had not exploded and there was an

intact powder sample, it would be logical to follow the smokeless powder
protocol, and he did not think Kelly should have followed the more
comprehensive protocol. Heckman also acknowledged that he may have asked
Kelly only to confirm and identify the smokeless powder.

On receiving the evidence, Kelly followed the CTU's written protocol for the
identification of smokeless powders. Initially, he examined the samples with a
microscope and measured and otherwise noted the physical characteristics of
the powder, which in this case included the presence of yellow dots. Kelly then
prepared an extraction with methylene chloride and conducted an analysis on
the Gas Chromatograph/Mass Spectrometer (GC/MS). The results indicated
that particular samples were double base smokeless powder. He also confirmed
the presence of nitrocellulose, a component of smokeless powder, in one
sample through the use of Fourier Transform Infrared Spectroscopy (FTIR).

Based on his examination of the evidence, Kelly prepared dictation for a
Laboratory report dated March 18, 1995. That report notes that, [s]pecimens
Q1, Q2, Q4, and Q7 were identified as double base smokeless powders suitable
for future comparison. After performing some additional work on the GC/MS,
Kelly prepared a second dictation on April 6, 1995, noting that the identified
specimens were physically and chemically consistent with Hi-Skor 700-x
smokeless powder.

No suspect was identified in the Shaw case. We understand that no further
analytical work has been done by the Laboratory since April 1995.

III. Analysis of Whitehurst's Allegations

Whitehurst contends that Kelly should not have examined the evidence because
Kelly had not been qualified as an examiner of explosives residue. Whitehurst
also maintains that the analysis was flawed because it may have overlooked
certain materials present in addition to smokeless powders. Finally, he suggests

that Roger Martz violated Laboratory policies in assigning the case to Kelly.
Whitehurst did not work on the Shaw case himself, and he did not discuss any
of his concerns with either Kelly or Heckman.

We do not find that Kelly performed the analysis without qualifications then
required within the Laboratory. Kelly became qualified as an examiner in
forensic chemistry in February 1995. Forensic chemist examiners in the CTU
had been analyzing smokeless powders since the 1980s. When Kelly worked on
the Shaw case, there was no stated FBI policy that the analysis of smokeless
powders had to be done by explosives residue examiners as distinct from
forensic chemists such as Kelly.

Nor do we find that Martz violated any Laboratory policies in assigning the
case to Kelly. We do think that Martz as unit chief should have taken additional
steps to integrate the protocols for the analysis of explosives and smokeless
powders and to assure that examiners properly understood the role of such
protocols. Before the analysis of explosives residue was transferred from the
MAU to the CTU in the summer of 1994, the Laboratory had identified the
need to develop guidelines for the respective roles of the two units in
explosives cases. In a memorandum to MAU Chief James Corby dated January
24, 1994, Scientific Analysis Section Chief James Kearney directed Corby to
meet with Martz and to develop written guidelines concerning the roles of the
two units by March 4, 1994.
No written guidelines were prepared in response to Kearney's memorandum.
Corby recalled that he and Martz verbally agreed that all explosives residue
cases would be handled by the MAU. Corby said that he understood the CTU
might continue to attempt to identify smokeless powder, but that the MAU
would be responsible for combining such results with any other work done by
the MAU. Martz similarly recalled that, at Corby's urging, all explosives cases
were to be sent first to the MAU during an interim period in 1994.

As discussed elsewhere in this Report, the explosives residue program within
the MAU was transferred to the CTU in the summer of 1994. Some time
thereafter, the CTU added the MAU's explosives residue protocol to the CTU's
collection of protocols. At the same time, the CTU retained its separate

protocol for the identification of smokeless powders. Consequently, in early
1995 the CTU had written protocols for both explosives residue analysis and
smokeless powder analysis, but there was no clear statement of the relationship
between these protocols. Thus, despite the transfer of the explosives residue
program to the CTU, the basic issue of integrating the protocols remained
unresolved.

The protocol for the analysis of explosives residue is more comprehensive than
the protocol for smokeless powders. Steven Burmeister, who in March 1995
was the only examiner in the CTU qualified in the field of explosives residue
examinations, told us he believed that the explosives residue protocol should be
followed in all cases involving suspected explosive materials, including cases
where the device is unexploded and apparently contains smokeless powder.
Kelly, when interviewed in December 1995, said he understood the explosives
residue protocol to apply to the examination of residues from exploded devices.
Kelly maintained that the smokeless powder protocol would be sufficient in
particular cases, such as Shaw, where the auxiliary examiner is asked merely to
identify smokeless powder.

Martz, as unit chief, should have assured that the protocols were integrated.
Moreover, he should have confirmed that his examiners understood that the
identified protocols were not merely guidelines to be followed at the examiner's
discretion. Standardized protocols, by their nature, should normally be followed
in cases to which they apply. If for some reason a departure from those
protocols is appropriate, that fact and its underlying rationale should be
recorded in the case file.

We also find that Whitehurst makes a valid point in noting that the analysis
done in the Shaw case may not have identified substances present in addition to
smokeless powder. This point relates to our comments concerning the relation
between the smokeless powder protocol and the protocol for the analysis of
explosives residue. Under the latter protocol, a water extraction would be made
and analyzed by high performance liquid chromatography (HPLC) and
capillary electrophoresis to identify inorganic materials that may be present.
Inorganic materials might not be detected by the GC/MS and FTIR analyses
called for under the smokeless powder protocol.

In analyzing the smokeless powder in the Shaw case, Kelly did examine the
material with a microscope. He told us that he did not observe anything other
than the particles of what appeared to be smokeless powder. It is conceivable,
however, that some other inorganic materials were present which, if not
identified in the microscopic examination, might also have escaped detection
through the GC/MS and FTIR analyses that Kelly performed.

On a related point, we think the Shaw case suggests a general need to clarify
the respective roles of the CTU examiner, in this case Kelly, and the EU
examiner in identifying procedures to followed. Kelly recalled that he
understood Heckman to have requested only a confirmation that smokeless
powder was present and a possible identification of its manufacturer. Heckman,
although agreeing that he might have made this request, said that he thought the
auxiliary examiner generally should determine the range of tests to perform, as
that person has the appropriate expertise.

In the area of explosives residue analysis, we think the auxiliary examiner must
take responsibility and make the final decision on the procedures necessary for
the case. A principal examiner from the EU, or other units for that matter,
generally will lack the specialized knowledge to decide what particular
analyses should be done. The principal examiner should of course participate in
that decision by providing appropriate information to the explosives residue
examiner.

IV. Conclusion

We conclude that Kelly did not violate FBI policies by his work on the Shaw
case. Nor do we find that Martz violated any policy by assigning Kelly to work
on the case.

The case does suggest that the Laboratory should improve its practices in the
following ways:

(1) the protocols within the CTU for explosives residue analysis and smokeless
powder analysis should be integrated;

(2) the CTU should assure that its examiners recognize that standardized
protocols are to be followed in applicable cases, unless there is a noted reason
for departure; and

(3) the roles of examiners in the EU and the CTU should be clarified to state
that it is the explosives residue examiner who remains ultimately responsible
for deciding the particular procedures to use in analyzing explosives residue.

#####

SECTION H8: GHOST SHADOW GANG

I. Introduction

In a June 27, 1995, letter to the OIG, Whitehurst complained that EU examiner
David Williams had prepared a Laboratory report related to the investigation
into the criminal activities of the Ghost Shadow Gang -- a gang active in the
Chinatown area of Manhattan -- in which Williams improperly presented an
expert opinion concerning the main charge in an improvised explosive device
(IED). Whitehurst alleged that Williams stated opinions for which he lacked
qualifications or analytical support and that he fabricated evidence.

To evaluate these allegations, we reviewed the pertinent Laboratory reports and
the related work papers and data. We also interviewed Williams and Steven
Burmeister, who worked on the case as an auxiliary examiner.

We conclude that Whitehurst's allegations in this matter are unfounded.

II. Factual Background

On June 7, 1995, the Laboratory received components of an IED recovered
during an FBI search in New York City. David Williams was the principal
examiner assigned to the case. On June 14, 1995, Williams completed a
Laboratory report describing certain examinations performed on the evidence.
Under the heading, Explosive Main Charge, the report stated:

Specimen Q3 is a grey colored powder with particles
approximately 3/16 in diameter. A sample of the grey powder was
test burned in the Laboratory and reacts with rapid flash. Physical
observable characteristics of the grey powder suggests [sic] that it
resembles pyrotechnic flash powder. The larger particles within
the grey powder mixture appear to be a filler mixture. Additional
chemical and physical examinations are continuing to confirm the
identity of the grey powder and your office will be advised of
these results upon its completion. Pyrotechnic mixtures similar to
the submitted specimen have been experienced in this Laboratory
as having originated from both commercial and homemade M-80
and M-100 type pyrotechnics.

Steven Burmeister subsequently completed the chemical and physical
examinations identified in the June 14, 1995, report. A second report was
prepared by Williams, dated July 18, 1995, which contained the results of
Burmeister's work. Under the heading Explosive Analysis the report notes:

The results of a physical and instrumental examination of
specimen Q3 identified the presence of potassium perchlorate and
aluminum. Also present in the mixture were particles of an
unidentified organic material. A combination of these materials
have been found in some flash powder mixtures.

The second report further described the particular tests Burmeister performed.

During our investigation, we asked Burmeister to review the June 14, 1995,
report and the July 18, 1995, report. He stated in his sworn interview that he did
not see any problems with anything in the reports and that the July 18, 1995,
report accurately incorporated his dictation.

III. Analysis of Whitehurst's Allegations

In his June 27, 1995, letter, Whitehurst complained about various aspects of the
passage quoted above from the June 14, 1995, report. Obviously, his June 27,
1995, letter did not address the conclusions reached by Burmeister that were set
forth in the subsequent July 18, 1995, report.

Whitehurst first noted that in the June 14, 1995, report, Williams stated that a
sample of the grey powder had been test burned and reacted with a flash.
Whitehurst speculated that if the grey powder was not homogenous, Williams
may have destroyed evidence from the test burn before it could be examined by
Burmeister. We think this complaint is unwarranted. Burmeister's notes
indicate that he himself performed a burn test on a sample of the powder, which
also produced a flash.

The initial report also stated that the physical observable characteristics of the
grey powder suggests [sic] that it resembles pyrotechnic flash powder.
Whitehurst complains that Williams was not qualified to make this statement.
Insofar as Williams simply described the observable characteristics of the
powder, we think his training and experience in the EU qualified him to express
the stated opinion.

Williams also stated that larger particles within the grey powder mixture
appeared to be a filler mixture. Whitehurst complains that Williams could not
make this statement without having analyzed the particles. In the very next
sentence of the original report, however, Williams stated that additional
chemical and physical examinations were continuing to confirm the identity of
the grey powder. We do not think Williams lacked the qualifications necessary
to state that certain particles appeared to be a filler mixture. In light of the
following sentence, he also did not incorrectly suggest that this observation
reflected some chemical examination.

Williams also observed in the first report that pyrotechnic mixtures similar to
the submitted specimen have been experienced in the Laboratory as having

originated from commercial and homemade M-80 and M-100 type
pyrotechnics. Whitehurst asserts that this was fabricated evidence because no
analysis had yet been conducted and Williams had absolutely no idea what the
mixture contained. Whitehurst's criticism here ignores the fact that Williams
notes earlier in the dictation that chemical and physical examinations are
continuing to confirm the identity of the grey powder. When read in context,
the statement by Williams comparing the specimen to mixtures from M-80 and
M-100 type pyrotechnics evidently rested on observation of the physical
characteristics of the evidence.

Whitehurst in his June 27, 1995, letter stated that Burmeister expressed
concerns to him about the initial report by Williams. As noted above,
Burmeister told us that he did not have problems with the June 14, 1995, report
or the July 18, 1995, report. During his interview with us, Whitehurst said he
did not recall ever reviewing the second report and said that he would defer to
Burmeister if he thought the two reports did not present any problems.

IV. Conclusion

We conclude that David Williams was qualified to give the opinions in the June
14, 1995, report, that the opinions did not lack proper analytical support, and
that the report did not constitute fabricated evidence.

#####

SECTION H9: THE UNABOM ARTICLE

I. Introduction

The July 1994 issue of the Crime Laboratory Digest contained an article by EU
examiner Thomas Mohnal describing fourteen explosive devices attributed to
the so-called Unabomber. The characteristics of the bombs as described in the
article were based on forensic examinations that had been performed over
several years by the FBI Laboratory and the laboratories of the Bureau of
Alcohol, Tobacco and Firearms (ATF) and the U.S. Postal Inspection Service
(USPIS). Some statements made in the article were based on work done by
Terry Rudolph when he was conducting explosives residue examinations in the
Laboratory in the 1980s. The article was published in an effort to develop
investigative leads by describing the devices used by the Unabomber and
disseminating this information to crime laboratories throughout the world.

Shortly after the article appeared, Whitehurst wrote to the OIG complaining
that it contained false information and that, before it was published, the
Laboratory should have addressed concerns raised by Steven Burmeister about
the validity of conclusions reached earlier by Rudolph. He repeated this
allegation in later correspondence and in an interview in this investigation.
Whitehurst alleged that, when Burmeister attempted to raise his concerns, he
was rebuffed by Mohnal and Christopher Ronay, the chief of the EU. Finally,
Whitehurst maintained that work done some years ago by the ATF or the
USPIS should be reevaluated in light of current scientific knowledge.

To evaluate Whitehurst's allegations, we reviewed documents provided by the
FBI related to the article and to Burmeister's review of work done by Rudolph
on the UNABOM investigation. We also interviewed Whitehurst, Burmeister,
Mohnal, Tom Roberts, Ronay, and Rudolph.

Based on our investigation, we conclude that neither Mohnal nor others in the
Laboratory acted improperly in publishing the UNABOM article in July 1994
without first addressing Burmeister's concerns. This conclusion reflects both
the limited purpose of the article and our inability to determine if Mohnal knew
of Burmeister's concerns before the article was published. In retrospect, given
the significance of this case and the fact that by July 1994 the Laboratory was
on notice of possible deficiencies in Rudolph's work, it would have been
desirable to review Rudolph's findings and confirm them before they were
described in the article.

Furthermore, the concerns raised by Burmeister about Rudolph's conclusions
appear in several instances to be well-founded. These concerns were brought to
the attention of Mohnal and Laboratory management not later than September
1995. Mohnal then attempted to prepare a response based on information he
obtained from Rudolph. As set forth below, the response does not adequately
address Burmeister's concerns. Nor did we find that Rudolph persuasively
addressed those concerns in his OIG interview. Accordingly, we recommend
that a qualified explosives residue examiner undertake a detailed review of all
of Rudolph's UNABOM work before it is used further in the case.

Neither Whitehurst nor Burmeister has reviewed the examinations done by the
ATF or the USPIS in this matter. The thoroughness of those examinations and
the validity of any resulting conclusions are beyond the scope of this Report,
and we do not address them here.

II. Factual Background

EU examiner Thomas Mohnal became the Laboratory's principal examiner
(PE) in the UNABOM investigation in June 1993. Before then, Ronay had been
the PE. As the PE, Mohnal began writing an article about the case for an FBIpublished periodical, the Crime Laboratory Digest.

Mohnal intended to describe features of the fourteen explosive devices
attributed to the Unabomber in the hope that investigative leads might develop
after the article was disseminated to crime laboratories around the country. In
preparing the article, Mohnal relied on Laboratory reports prepared by the
ATF, the USPIS, and the FBI. For many of the earlier bombings, the ATF and
the USPIS had done all the forensic work. In the instances where the FBI had
examined the explosive devices, former MAU examiner Terry Rudolph had
done the explosives residue analysis.

After becoming involved in the case, Mohnal also asked Burmeister in the
MAU to assist with explosives residue analysis of the UNABOM evidence. In
the summer of 1993, Mohnal asked Burmeister to review the files reflecting the
Laboratory's prior explosives residue analyses on the case. Mohnal and
Burmeister agreed that such a review was desirable to see whether there was
any pattern developing over time that could tie the bombings together.

Burmeister reviewed the UNABOM case files and, sometime in the spring of
1994, summarized his conclusions in an informal memorandum entitled
UNABOM review by SSA Steven Burmeister. As reflected in this
memorandum, Burmeister found that certain files lacked documentation such as
work notes or any information on how the Laboratory had processed the
evidence. In several of the files, Burmeister criticized Rudolph's previous work
for failing to include sufficient standards, to perform confirmatory tests, to
address all significant substances found, or to include data sufficient to support
the stated conclusions.

Mohnal and Burmeister have conflicting recollections about any discussion of
Burmeister's memorandum. Burmeister remembers giving it to Mohnal and
says he most likely discussed it with him shortly after preparing it in the spring
of 1994. In contrast, Mohnal denies that Burmeister gave him the memorandum
or discussed it with him. Mohnal told us during an interview that he did not
know of the memorandum until September 1995, when it was given to him by
Tom Roberts, a prosecutor from the Department of Justice who then headed the
UNABOM Task Force. In May 1994, Burmeister did give a copy of his
UNABOM memorandum to John Sylvester, an Assistant General Counsel in
the FBI's Office of General Counsel (FBI OGC). Sylvester was one of the

attorneys then working on the FBI OGC investigation of allegations made by
Whitehurst concerning Rudolph and other matters within the Laboratory. In an
interview, Sylvester asked Burmeister if he had seen any of Rudolph's work.
Burmeister responded by describing his review of Rudolph's UNABOM
examinations. On May 31, 1994, Burmeister sent Sylvester a copy of the
memorandum.

About a month later, Mohnal's article appeared in the July 1994 issue of the
Crime Laboratory Digest. Burmeister said he had not seen drafts of the article
before its publication, and when he read the published article, he questioned its
statement that the person making the bombs was using potassium chlorate, AN
and AL [sic] as constituent chemicals for the explosive charge. Burmeister
thought this statement incorrectly implied that all the mentioned chemicals
were found in the later bombs, and he thought that he should have reviewed the
article before its publication.

Mohnal and Burmeister also differ in their recollections of conversations after
the article appeared. Burmeister said he told Mohnal his concerns, and Mohnal
responded that the article was already published and there was little to be done.
In an OIG interview Mohnal said that he did not recall telling Burmeister this
and that, in any event, Burmeister's concerns did not really affect the
information being presented in the article. Mohnal said that while the article
may not have been worded as precisely as it could have been, there was no
harm insofar as it was intended to disseminate general information about the
devices to develop investigative leads.

More than a year after the article appeared, Mohnal was contacted by
UNABOM prosecutor Roberts concerning allegations by Whitehurst that the
article contained questionable information. Roberts gave Mohnal an excerpt
from a July 13, 1994, letter from Whitehurst to the OIG. Enclosed with
Whitehurst's letter were copies of the article and Burmeister's memorandum.
Whitehurst in his letter compared statements from Burmeister's memorandum
with statements in the article and observed, The data concerning the type of
charge used in the bombs that SSA Mohnal reported in the article is either in
question or there appears to be no hard data to back it up.

After receiving the Whitehurst letter and Burmeister memorandum from
Roberts, Mohnal approached Laboratory Director Milton Ahlerich to discuss
what should be done. Ahlerich told Mohnal to draft a written response. Mohnal
prepared a memorandum dated October 3, 1995, that addressed allegations
made by Whitehurst as well as certain concerns raised by Burmeister in his
review. In his memorandum, Mohnal noted that in some instances where
Whitehurst had asserted there was a lack of hard data to support statements in
the article, the statements were in fact supported by forensic examinations done
by the ATF or USPIS. With regard to the accuracy of certain conclusions
reached by the FBI Laboratory, Mohnal attempted to describe the underlying
examinations. To prepare the memorandum, Mohnal talked with Rudolph about
his explosives residue work, although Mohnal's memorandum does not mention
this fact.

Mohnal recalls that Ahlerich, EU Examiner J. Thomas Thurman, and Randall
Murch, who then was chief of the SAS, each reviewed a draft of his
memorandum. He also believes that each of them knew he had consulted with
Rudolph in preparing it. Neither Burmeister nor Whitehurst was asked to
review Mohnal's memorandum, and no explosives residue examiner other than
Rudolph provided information to Mohnal for the memorandum. Mohnal told us
that his primary objective in preparing the memorandum was to rebut
Whitehurst's accusations that he had deliberately included incorrect information
in the article, and Mohnal said he was less concerned about responding to
issues raised by Burmeister.

After completing his memorandum, Mohnal gave a copy to Roberts and further
discussed Whitehurst's allegations with the prosecutor. Roberts concluded the
allegations were not substantiated because Whitehurst had not worked on the
case himself, he was applying current Laboratory practices to criticize
examinations done years before, certain conclusions reached by the FBI
Laboratory had been independently corroborated, and the Unabomber's
writings themselves supported conclusions reached by the Laboratory. Roberts
said he knew Rudolph had been criticized for sloppy work habits, but he did
not think Rudolph had been found to have fabricated conclusions.

In a letter dated October 5, 1995, James Maddock of the FBI OGC advised the
OIG that Roberts had apparently concluded that Whitehurst's allegations were
unsubstantiated. Maddock further stated, This information is being provided
because it bears on the credibility of Mr. Whitehurst and also illustrates the
disruptive impact that his allegations have had on FBI operations.

III. Discussion

In this discussion we evaluate Whitehurst's allegations about the article and
concerns raised by Burmeister about Rudolph's work on the case.

A. Publication of the Article

Whitehurst alleges that the Laboratory improperly failed to address the
concerns raised by Burmeister before the article was published. Mohnal, as
noted above, said he was unaware of Burmeister's concerns until September
1995 -- more than a year after the article was released. Moreover, Mohnal
noted in his October 3, 1995, memorandum:

This article was approved for release by the UNABOM Task
Force, as well as it was peer reviewed by SSA James Kearney,
Section Chief, Scientific Analysis Section and SSA J.C. Ronay,
Unit Chief, Explosive Unit and was also the Primary Examiner
assigned to the UNABOM case from November 1979 through
1989. This article was also peer reviewed independently of me at
the direction of the staff of the Crime Laboratory Digest. Peer
review is a universal method of determining acceptability of
articles in professional and scientific journals.

We are unable to find that Mohnal or others in the Laboratory deliberately
ignored Burmeister's concerns in publishing the article in July 1994. Mohnal
and Burmeister have conflicting recollections of whether they discussed
Burmeister's concerns, and we cannot conclude that Mohnal knew of them
before the article was released. We also recognize that the article was intended
as a general summary of the devices in order to develop investigative leads.

In retrospect, however, given the significance of this case and the fact that by
July 1994 the Laboratory was on notice of possible deficiencies in Rudolph's
work, it would have been desirable to review Rudolph's findings and confirm
them before they were described in the article. Mohnal acknowledges that he
had asked Burmeister to work on UNABOM before the article was released,
and we find it astonishing that Mohnal would publish an article purporting to
summarize the features of the different bombs without soliciting input from
Burmeister, the explosives residue examiner then assigned to the case.

Moreover, we think Mohnal erred in his statement that the article was subject to
peer review before its publication. Insofar as the article described conclusions
based on the examination of explosives residue, a peer review would involve
substantive review by someone knowledgeable in that field. Neither Kearney
nor Ronay had such expertise. Moreover, neither could specifically recall
reviewing the article, and Kearney noted that if he had done so, his review
would have been purely administrative. Similarly, any review directed by the
staff of the Crime Laboratory Digest would have been largely administrative,
because the reviewer would not have had access to the case files or scientific
data.

B. The Allegation that Mohnal and Ronay Rebuffed Burmeister

Whitehurst alleges that Mohnal blew . . . off Burmeister when the latter first
expressed his concerns about Rudolph's work on UNABOM. Our investigation
did not substantiate this allegation. Burmeister told us he did not recall Mohnal
reacting negatively or expressing a lack of concern. Burmeister also said he did

not recall telling Whitehurst that Mohnal had been unreceptive to Burmeister's
findings.

Whitehurst also alleges that Burmeister told him about a conversation involving
Ronay, Thurman, and Burmeister, in which they recognized that there were
some problems in previous analyses in the case and Ronay said, [D]on't open
that can of worms, don't open it. In an interview with the OIG, Burmeister said
that he did not recall this conversation and that the alleged phrase about a can
of worms would be out of character for Ronay. Burmeister also said that he
could not recall discussing his review of Rudolph's UNABOM work with
Ronay or Thurman, although he had discussed it with MAU Chief James Corby
and Whitehurst.

C. The Laboratory's 1995 Response to Burmeister's Concerns

In 1995, after Roberts gave Mohnal copies of Whitehurst's July 13, 1994, letter
and Burmeister's memorandum, the Laboratory failed to respond adequately to
the concerns raised by Burmeister. By this time, Laboratory Director Ahlerich
was aware that serious questions had been raised about the quality of Rudolph's
work and a review of all of that work was under way. Mohnal at the least knew
that Burmeister, who then was the Laboratory's only examiner working in the
field of explosives residue analysis, had raised serious questions about
Rudolph's work on the UNABOM case in particular. Mohnal was not himself
qualified to evaluate the criticisms raised by Burmeister or Rudolph's response.
In these circumstances, the Laboratory should have sought a thorough review
of Rudolph's work by a qualified explosives examiner. Mohnal's October 3,
1995, memorandum -- prepared with Rudolph's input without any opportunity
for Burmeister to comment further -- was not an adequate response.

We do not criticize Roberts for concluding, based on his discussions with
Mohnal, that Whitehurst's allegations were not substantiated. Roberts evidently
relied on the principal examiner (Mohnal) for guidance on the scientific issues.
In contrast, we find that the OGC was not justified in concluding, as was stated
in Maddock's letter to the OIG, that Roberts' conclusions bore on Whitehurst's

credibility and Whitehurst's disruptive effect on the FBI. The OGC had
received Burmeister's review in May 1994, questioning Rudolph's work on
UNABOM, and the OGC was also aware of general concerns about Rudolph's
work. Given these facts, we do not think the OGC could justifiably rely on
conclusions from a non-scientist prosecutor to evaluate the merits of the
allegations raised by Whitehurst, who had largely repeated the concerns noted
by Burmeister.

During the OIG investigation, Burmeister for the first time reviewed Mohnal's
October 3, 1995, memorandum. Burmeister observed that Mohnal himself was
not qualified to comment on explosives residue analyses, and that Rudolph
should have responded himself. Moreover, Burmeister thought some statements
in Mohnal's October 3, 1995, memorandum were incorrect, failed to account
for missing notes and charts, or did not address why standards and
confirmations were not run on particular samples. We also interviewed
Rudolph regarding his work on the UNABOM case. Rudolph strongly
disagreed with Burmeister's criticisms, defended the statements in Mohnal's
October 3, 1995, memorandum, and acknowledged he had supplied the
underlying information to Mohnal.

For purposes of this investigation, we considered the comments in Burmeister's
initial review; Mohnal's response in the October 3, 1995, memorandum;
Burmeister's further comments in an OIG interview, and Rudolph's defense of
Mohnal's statements in an OIG interview. The remainder of this section
summarizes their respective views with regard to six of the devices attributed to
the Unabomber. In most instances, we find that Burmeister's concerns are well
founded. As a result, we conclude that a qualified explosives examiner should
review all of Rudolph's work on UNABOM before it is used further in the case.

1. The November 15, 1979, Device

Burmeister wrote in his review that Rudolph's findings indicated smokeless
powder was removed from the device and that the ATF had found smokeless
powder and match heads, but there was no data in the files to review.

Burmeister also noted that there was no information on how the FBI processed
the evidence.

Mohnal wrote the following in his response to Burmeister's comments:

Smokeless powder was identified in this device based on physical
observable characteristics of smokeless powder and on
instrumental technique (See FBI Laboratory report dated March 7,
1980). In 1979 this was the primary technique SSA Rudolph had
available. Several years later the FBI laboratory used a liquid
chromatography technique for smokeless powder identification,
but in 1979 it had not yet been developed. Furthermore, in
confirmation of the FBI Laboratory, SSA Rudolph, smokeless
powder was also identified in this IED by Dupont Explosive
Company, manufacturer of smokeless powder.

Burmeister stated in his OIG interview that the information cited by Mohnal
was not in the case file. If instrumental analysis was used in this instance,
Burmeister questioned why it was not used in the examination of some later
devices in which Mohnal stated smokeless powder was identified by physical
characteristics alone.

In an OIG interview, Rudolph could not recall what instrumental techniques
were used, but he speculated that it could have been infrared spectrometry (IR).
Rudolph could not explain the absence of charts relating to the alleged
instrumental tests. Rudolph also could not explain why he would have used
instrumental analysis to identify smokeless powder in this device, when it
evidently was not used to make such an identification in a later device. Rudolph
said that when this work was done, there was no set protocol for identifying
smokeless powder and that he pretty much left it up to Bender [his technician],
who Rudolph said was the expert in the lab for such work.

Rudolph's responses are unpersuasive, and his performance in this case lacks
competence. The case files do not contain sufficient information to identify the
analyses performed, if any, or to understand the basis for the stated
conclusions. Rudolph, as the examiner, was responsible for determining what
tests were performed, and he cannot excuse the inadequacy of the file by saying
he simply left things to his technician.

2. The October 8, 1981, Device

Burmeister's review noted that smokeless powder was provided to the FBI but
there was no data in the file to review and no information describing how the
evidence was processed.

Mohnal's response stated:

Instrumental analysis by the FBI Laboratory, SSA Rudolph, of a
powder found in the debris of the IED determined it was
composed of a match-type formulation (See FBI Laboratory
report dated November 17, 1982). This analysis was also
conducted by ATF and determined it to be commercial safety
match powder (See ATF Laboratory report dated November 3,
1981).

Mohnal also noted that the FBI Laboratory had not conducted instrumental
analysis of unconsumed smokeless powder.

In his OIG interview, Burmeister stated that Mohnal's response referred to
analyses that were not contained in the case file. Rudolph said that Mohnal's
response was not based on anything Rudolph had located in the file, but instead

was based on Rudolph's recollection. Rudolph wasn't sure what tests he
conducted but thought it was probably x-ray powder diffraction (XRD).

Again, Rudolph's answers strongly suggest a lack of competence. Rudolph's
response illustrates the general problem with his inadequate case
documentation that was discussed in Part Three, Section A, supra. His work is
of little value if the files do not document the basis for the stated conclusions
and Rudolph must rely only on his uncertain memory of what he probably did
in the particular case.

3. The July 2, 1982, Device

Burmeister's review noted that there was no data in the file concerning a
finding of smokeless powder in the debris. With regard to certain ion
chromatography (IC) results, Burmeister observed that Rudolph had failed to
mention the presence of sulfate, that no standards were run, that there were
some unidentified peaks, and that there were no confirmations.

Mohnal responded with the following:

Smokeless powder was identified in this IED based on physical
observable characteristics of smokeless powder. Examinations of
this powder were conducted by the FBI Laboratory (See FBI
Laboratory report dated June 15, 1983). This unconsumed
smokeless powder was also compared to the manufacturers
specifications provided by Dupont Explosive Company, and
physical comparisons with known standards and unconsumed
smokeless powder from previously examined UNABOM IEDs
(See FBI Laboratory report dated June 15, 1983.)

In his OIG interview, Burmeister stated that there were no notes or data in the
case file to establish how smokeless powder was identified. He also noted that
Mohnal had not addressed the comments about the lack of standards,
confirmations, and peak identifications.

Rudolph addressed the issue of lack of standards and peak identification as
follows:

Typically we ran a standard for the day, and if we changed
solutions or a column, we would run another standard. We didn't
run a standard after every run. That standard wouldn't necessarily
-- if I only ran one standard and I had five cases that I used it on, I
wouldn't necessarily put one standard in there. I mean, this was
stuff that I had such experience in that I knew what I had and I
didn't necessarily have to refer to a standard every time I run one
of these to see, you know, what things I had, such as chloride and
sulfate.

Rudolph added, So it was not uncommon not to have a standard in the file, and
it was not uncommon not to identify those peaks. I mean, I just run the chart
and throw it in there. I mean, I'm only going to be -- the only person that's
going to identify them.

With regard to confirmations, Rudolph stated that, given his expertise, he at the
time didn't think it was necessary to do a confirmation like they do today. He
also said that his failure to identify sulfate and other substances in his report
was not significant in my view.

Rudolph's approach to the use of standards and confirmations was flawed,
measured by the generally accepted procedures used in forensic science at that
time. Without a protocol, Rudolph had no guide to determine when a standard
or confirmation was required, and his failure to document his work means his

conclusions cannot be verified. Here, a confirmation test was a necessary
prerequisite to a positive identification. Rudolph's shortcomings in this case,
including his misplaced reliance on his expertise as a substitute for
confirmatory tests, were also displayed in the Psinakis case. Rudolph's
responses to Burmeister's concerns are similar to his response to Corby's 1995
file review of Rudolph's cases. As previously noted in Part Three, Section A,
we find Rudolph's reasoning unacceptable and unprofessional.

4. The May 15, 1985, Device

Burmeister's review noted that Rudolph should have run additional tests to
confirm an identification of ammonium nitrate based on x-ray powder
diffraction (XRD). Burmeister also questioned why a confirmatory test had not
been done for the identification of aluminum with a scanning electron
microscope (SEM) and why no organic extraction had been done to test for the
presence of organic explosives.

Mohnal's October 3, 1995, memorandum observed:

Analysis of specimen Q237 was conducted by the FBI
Laboratory, which revealed Ammonium Nitrate by x-ray powder
diffraction, which has long been considered a positive form of
identification. The presence of Aluminum was confirmed by
SEM, again a strong technique at this time (See FBI laboratory
report dated December 5, 1985). Based on these two analyses and
SSA Rudolph's experience and his research everything was
consistent with being an Ammonium Nitrate device. In numerous
analysis of this evidence, SSA Rudolph never found fuel oil. In
examining hundreds of cases by this time and being aware of
hundreds of others done by ATF and other law enforcement
laboratories, SSA Rudolph never saw an ANFO/smokeless
powder mixture. Therefore no organic extraction was conducted.
Although current FBI laboratory protocol calls for organic

extraction during residue examination, the protocol used in 1985
did not require such an examination.

In reviewing Mohnal's memorandum, Burmeister strongly disagreed with the
statement that x-ray powder diffraction has long been considered a positive
form of identification. Burmeister said, I don't believe that XRD by itself is a
confirmational tool. You have to have backup. Burmeister indicated that
SEM/EDXA would be used at bare minimum . . . but I personally would back
that up one more step with ion chromatography which I do. Burmeister also
noted that Rudolph wrote a paper in 1983 in which he described organic
extraction during residue examination yet he failed to conduct one in this case.

Rudolph maintained that XRD has long been a positive form of identification,
and disputed Burmeister's statement that use of an SEM was necessary to
confirm the identification of ammonium nitrate.

In principle, XRD can be used to obtain a positive identification. However,
because of the characteristics of ammonium nitrate, we accept that an examiner
may feel it is appropriate to confirm its presence with a second test.

5. The May 18, 1985, Device

In his review, Burmeister indicated that Rudolph could not conclude from the
presence of potassium sulfate that the explosive device contained black
powder. He also questioned how Rudolph had identified aluminum on
specimen Q5, as the results were not in the file.

Mohnal's response referred to this device as the 6-13-85 device. He stated the
following regarding SSA Rudolph's analysis of the evidence:

Potassium sulfate was found on two specimens. Potassium sulfate
is the main combustion product of black powder and for many
years its presence in explosive devices was considered indicative
of black powder. SSA Rudolph never found potassium sulfate in
an explosive device that it was not the result of a black powder or
related explosive. In fact, SSA Rudolph can never remember
finding potassium sulfate other than in an explosive related case.

Mohnal admitted that no SEM chart could be located to confirm the aluminum
on specimen Q5. He stated that [d]ue to the amount of unsolicited and
unauthorized reviews of these enclosures, this chart could have been misfiled
and additional reviews are underway to locate this chart.

Burmeister maintained that the presence of potassium sulfate does not in itself
establish that explosives residue came from black powder. In a later interview,
Rudolph stated that Burmeister was dead wrong in this respect. Rudolph stated
that [t]here is no chemist that I know that when they're dealing with pipe
fragments, explosive-type residues, if they don't find potassium sulfate, would
not make a finding of black powder or black powder-related. Rudolph also
informed the OIG that he did not look for the missing chart.

We agree with Burmeister's reasoning in this instance. Rudolph is incorrect in
thinking that black powder can be identified solely by the presence of
potassium sulfate. Even Mohnal's response only says potassium sulfate is
indicative of black powder. Moreover, we find unpersuasive the suggestion in
Mohnal's memorandum that Rudolph could identify black powder based on the
presence of potassium sulfate because in Rudolph's experience the latter
substance was not found except in black powder-related explosives. As we
have observed earlier, an examiner's subjective or impressionistic experience is
no substitute for scientifically valid procedures. Finally, assuming Rudolph in
fact used the SEM, either Rudolph erred by failing to include the SEM/EDXA
chart in the file, or this case provides another example of inadequacies in the
Laboratory's system for the storage and retrieval of case files.

6. The December 11, 1985, Device

Burmeister criticized the results for specimens Q23 and Q28 in his review. He
stated that Rudolph should have done tests in addition to XRD before
identifying ammonium nitrate on these specimens, and noted that Rudolph had
failed to mention the presence of sulfates. Burmeister further stated, Data not
complete and hard to review, no confirmations. Burmeister also noted that
certain IC charts were not labeled.

Mohnal wrote that [a]mmonium nitrate and Aluminum powder were found on
specimen Q91 by x-ray powder diffraction. Again this is considered a positive
form of confirmation and in 1985 the FBI Laboratory protocol did not require
conducting any other analyses. It is unclear why Mohnal addressed specimen
Q91 rather than the specimens criticized by Burmeister.
After reviewing Mohnal's memorandum, Burmeister reiterated that based on
the information in the case file he could not see how ammonium nitrate was
identified through XRD and that IC charts were not labeled and therefore could
not be matched with specimens.

Rudolph could not explain why specimen Q91 was addressed by Mohnal. With
respect to the unlabeled charts Rudolph stated, I mean, just like I mentioned
before, the peaks were not labeled. I mean, I could take this, this is nitrate and
sulfate, and I would know that. I'm going to be the guy testifying to it. Rudolph
further opined, I mean, I just felt -- nobody ever told me that, you know, 15
years later I was going to have a review, that people needed to know in the
review what those things were. Rudolph also stated that [h]e [Burmeister]
comments I do not address sulfates. Again, I didn't see the significance, like
before.

We conclude that Burmeister's criticisms are well founded. Because the XRD
chart was unclear, a confirmation was needed to make a positive identification.
Moreover, the lack of documentation is unacceptable and is consistent with the
pattern that we have seen in Rudolph's cases.

IV. Conclusion

We do not find that Mohnal or others in the Laboratory acted improperly in
publishing the UNABOM article in July 1994 without first addressing
Burmeister's concerns. Given the significance of this case and the fact that the
Laboratory was on notice of possible deficiencies in Rudolph's work, it would
have been desirable to review Rudolph's findings and confirm them before they
were described in the Crime Laboratory Digest article.

Furthermore, the concerns raised by Burmeister about Rudolph's conclusions
appear in several instances to be well-founded. The Laboratory did not
adequately address these concerns after they were brought to the attention of
Mohnal and Laboratory management in September 1995. Rudolph's work on
UNABOM displays the same problems of inadequate documentation and
conclusions not supported by sufficient data that we noted in the more general
discussion in Part Three, Section A above.

A qualified explosives residue examiner should undertake a detailed review of
all of Rudolph's UNABOM work before it is used further in the case. In
response to a draft of this section of the report, Robert Cleary, a Special
Attorney to the U.S. Attorney General, advised the OIG that the Government
would not be relying upon any of Rudolph's work in the UNABOM case as part
of the prosecution of Theodore J. Kaczyski, who has been indicted on charges
related to bombings attributed to the Unabomber. Cleary stated that to the
extent the Government will offer explosive residue evidence in the Kaczyski
case, it will be relying upon the conclusions of Burmeister and other, non-FBI
laboratories.

#####

SECTION H10: THURMAN'S ALLEGED ALTERATION OF
DICTATION

I. Introduction

As explained in Part Two, supra, although many examiners from different
units in the FBI Laboratory may work on a given case, the Laboratory
requires one of the examiners (the principal examiner or APE ) to issue the
official Laboratory reports in the case. The other examiners (the auxiliary
examiners or AAEs ) submit their reports (Adictation ) to the PE for
incorporation in the official report. Whitehurst alleges that during the
period 1987-92 SSA J. Thomas Thurman, as PE, presented altered
versions of Whitehurst's AE dictation in some of the reports. Also, SSA
Steven Burmeister alleges that Thurman, as PE, included inappropriate
conclusions in a report on a 1993 case in which Burmeister was AE.

To investigate these allegations, we interviewed Thurman, Whitehurst,
Burmeister, James Corby (former MAU Unit Chief), J. Christopher Ronay
(EU Unit Chief 1987-94), Kenneth Nimmich (SAS Chief 1987-93), James J.
Kearney (SAS Chief 1993-95), and other FBI Laboratory personnel.
Additionally, we reviewed applicable FBI documents.

It is undisputed that many of Whitehurst's dictations were not included
verbatim in Thurman's reports during the period 1987-92. Thurman
maintains that before 1993 there was no firm policy requiring verbatim
inclusion of AE dictation, that he had no sinister motive in writing the
reports as he did, and that his only intent was Ato try to make the reports
more understandable by lay people. As explained below, we conclude that
Thurman did not engage in willful misconduct with respect to
Whitehurst's dictation, but we do find that some of Thurman's reports
contained ambiguities and other errors. We also conclude that Unit Chief

Ronay failed to enforce the FBI policy of requiring verbatim inclusion of
AE dictation in reports.

With respect to Burmeister's allegation, we conclude that Thurman should
have revised his report in accordance with Burmeister's objections and
that Kearney was remiss in failing to take action once he learned of the
objections.

We address the Whitehurst (Section II) and Burmeister (Section III) issues
in turn, and then state our conclusions (Section IV).

II. Alteration of Whitehurst's Dictation

A. Background

On November 27, 1992, Laboratory examiner Kelly Mount (formerly
Hargadon) told Whitehurst that Thurman told her that Thurman, as PE,
had changed Whitehurst's AE dictations before including them in the
official reports. Mount told the OIG that Thurman said he had
Astreamlined the dictations. In December 1992 Whitehurst obtained
sixteen reports Thurman had written with Whitehurst as the AE, and
found that many of the reports did not include Whitehurst's dictation
verbatim. He wrote a memorandum containing his findings and submitted
it to Corby, his Unit Chief. The memorandum asserted that several of the
reports Achanged the meaning or significantly altered the content of the
dictations.

Corby discussed the matter with SAS Chief Nimmich, who asked Corby to
meet with Ronay and Thurman and resolve the matter at the unit chief
level. On December 10, 1992, Corby personally told Thurman not to alter

any MAU dictation. On December 14, 1992, Corby reported back to
Nimmich. At his OIG interview, Corby could not recall any further action
taken with respect to Whitehurst's memorandum.

On February 7, 1994, Whitehurst's personal attorney wrote a letter to the
FBI Office of General Counsel (FBI OGC) setting forth numerous
allegations against the FBI Laboratory, including the claim that Thurman
had altered Whitehurst's dictation. The FBI OGC completed a
preliminary review of the allegations on May 26, 1994. The Director of the
FBI concurred in the FBI OGC's recommendations, which were
transmitted to the head of the Laboratory on June 8, 1994. With respect to
the claim of alterations of dictation, the FBI OGC recommended that all of
the past dictations of Whitehurst and Burmeister be compared to the
applicable final reports Ato ensure there were no changes. If changes were
made, appropriate action should be taken to correct any substantive errors
in the reports.

In response to the FBI OGC recommendations, SAS Chief Kearney
assigned Corby to review all of the dictations and reports in which
Thurman was the PE and Whitehurst the AE. On September 7, 1994,
Kearney wrote a memorandum to Laboratory Director Milton Ahlerich, in
which Kearney stated that the review had begun and would be completed
by October 15, 1994. Kearney stated that A[following some review, it
appears that the practice [of altering AE dictations] is isolated to one
Explosives Unit Examiner, SSA James T. (Tom) Thurman.

On November 4, 1994, Kearney wrote another memorandum to Ahlerich
stating that Corby's review of Thurman's reports had been completed,
with the following findings: Of the fifty-two reports in which Thurman
was the PE and Whitehurst the AE, twenty dictations were found to be
unaltered; eighteen were altered but not significantly; thirteen were
altered resulting in a change of the meaning of the dictation; and one
report did not contain an altered dictation but did have another mistake.

In December 1994 and January 1995, Kearney, SSA Steven P. Allen, and
Corby independently analyzed the thirteen cases with altered dictations,
and wrote memorandums of their findings. Kearney concluded that Athe
alterations made to SSA Whitehurst's dictation by SSA Thurman were not
done to bias the reports in favor of the prosecutions but were done
simpl[y] to clarify the reports by integrating the findings of SSA
Whitehurst into the full context of the report. Kearney recommended no
administrative action other than the oral counseling of Thurman not to
alter the dictations of AE examiners. Allen also concluded that no
administrative action was warranted. Corby, on the other hand,
recommended that AThurman be held accountable for the unauthorized
changes . . . by administrative action to include both oral reprimand and a
letter of censure.
On April 12, 1995, Thurman responded to the allegations in a
memorandum, asserting that he did not willfully violate FBI policy and
that his Unit Chief was aware of what he did.

On May 22, 1995, Kearney submitted a memorandum to Ahlerich.
Kearney wrote that the three reviewers recommended: (1) that the policy
of not changing dictation be Are-emphasize[d] with the Explosives Unit;
(2) that the OGC review the matter to determine what should be done with
the altered Laboratory reports; and (3) that the FBI Office of Professional
Responsibility (OPR) review the matter for any appropriate action. Corby
told the OIG that he agreed to this memorandum without recommending
an oral reprimand or letter of censure because Kearney told him that such
recommendations would be inappropriate.

Ahlerich and the FBI General Counsel approved the recommendations in
Kearney's May 22, 1995, memorandum.

B. Analysis

Kearney stated in his May 22, 1995, memorandum to Ahlerich that, of the
fifty-two cases in which Thurman was the PE and Whitehurst the AE, Ait
was determined that in twelve (12) case reports, SSA Thurman
significantly altered SSA Whitehurst's dictation. In one other report, SSA
Thurman reported technical results without supporting laboratory
analysis. We have reviewed the reports and dictation in these thirteen
cases, and we present our analysis of them below. First, however, we
discuss the FBI policy that AE dictations be included verbatim in the PE's
official report.

1. The Verbatim Inclusion Rule

The evidence establishes that during the applicable period (1987-92) the
policy of the Laboratory was to include AE dictation verbatim in the
official Laboratory reports, but Unit Chief Ronay did not always enforce
the policy in the EU.

On September 1, 1994, the Director of the Laboratory issued a
memorandum explicitly requiring verbatim inclusion of AE dictation in
the official reports. Although there was nothing in writing on the subject
before this, the memorandum purported to be a Arestatement of longstanding policies. Before September 1, 1994, the policy of verbatim
inclusion of AE dictation was, in the words of the OGC, Aan unwritten LD
[Laboratory Division] rule. See also October 7, 1994, letter by Associate
General Counsel John T. Sylvester (AOGC contacted the LD management
regarding this allegation who advised that the LD had a longstanding
policy prohibiting any changes in AE dictation by the PE without the
express permission of the AE ); December 15, 1994, memorandum from
Kearney (Ain October 1994, the longtime understood practice of not
altering AE dictation without the permission from the AE examiner was
stated as policy for the entire Laboratory Division ); January 13, 1995,
memorandum from Corby (AIt has always been understood practice
(perhaps not written policy) that PEs do not change/alter/reword/revise
AE dictation without consulting with and receiving permission from the
AE, or their respective Unit chief in combination with the AE ) (emphasis
in original). Nimmich, the SAS Chief during the pertinent period (1987-

93), stated that SAS policy was to incorporate auxiliary examiner reports
verbatim; the policy was Aingrained in the Laboratory.

In his OIG interview, Ronay testified that throughout his career in the FBI
Laboratory (1977-94) Ait was a general policy that the dictation by any
auxiliary examiner or AE would stand on its own and would not be
changed without his knowledge or his permission. He continued:

OIG: . . . Just your own understanding. It has always been the
policy that you do not change the findings of an AE.

RONAY: Right.

OIG: You put them in there exactly the way he wrote it?

RONAY: Right.

OIG: Exactly the way he wrote it --

RONAY: Well, yes.

OIG: -- or do you change it around, I mean, just to make it
sound better.

RONAY: No. You wouldn't do that. Well, that would be
ridiculous, wouldn't it.

Ronay believed that Nimmich did not allow the changing of dictation: AHe
enforced the policy as it was. A[T]he management, according to Ronay,
Anever gave us permission to . . . unilaterally eliminate something.

Ronay was equivocal as to the propriety of omitting dictation from a
report. At one point in the interview he acknowledged A[t]hat it would not
be proper to leave it out in its entirety. Ronay, however, also stated:

[A] confirmatory type of test, you might not even include it.

That was something that was, I say, allowed, was normally -it was acceptable depending on what, you know, what it was.
Now, if it was a scientific test that had to go towards
something you knew was discoverable type scientific material,
you put it in there. . . . [T]he policy on it or the enforcement on
it were a little drifty over the years.

Ronay often approved omitting portions of AE dictation that Awere not
substantive to the findings, but did not think he would have approved
leaving out a dictation in its entirety. Ronay stated that he allowed all the
examiners in the EU to change Whitehurst's dictation, but he could not
recall allowing anyone to change the dictation of another AE. Ronay stated
that the reason he allowed Whitehurst's dictation to be changed was that
he thought the dictation sometimes included a description of the
instrumental analysis that was Aconfusing and the dictation sometimes
included matters outside Whitehurst's area of expertise.

2. The Cases

An analysis of the thirteen cases identified by Kearney show that
Whitehurst's dictation was not included verbatim, and in some cases
Thurman's reports were ambiguous and contained other errors.

a. Case 20624009 (1992)

Laboratory Case 20624009, written in 1992, is illustrative. In that case
Whitehurst's dictation stated:

RESULTS : The results of chemical and physical analyses of
specimen Q1 are consistent with the presence of ammonium
nitrate. Ammonium nitrate is one of the two components used
in binary high explosives.

The results of chemical and physical analyses of specimen Q2
are consistent with the presence of nitromethane.
Nitromethane is one of the two components used in binary
high explosives.

The results of chemical and physical analyses of specimen Q4
are consistent with the presence of pentaerythritol tetranitrate
(PETN) high explosive. PETN is used in detonation cord.

(Emphasis added). Thurman's report stated:

Present in specimens Q1 and Q2 are the two components
which comprise the Kinestik two-component explosive system.
The white powder, which was identified as ammonium nitrate,
for this explosive is contained within a white plastic container
in specimen Q1 and is labeled by the manufacturer AKinestik
1 Solid . . . .

The second part (liquid) of this two-component system is
present in specimen Q2 and contained in a clear plastic tube
and labeled by the manufacturer as Akinapouch Kinestik 1
Liquid . This liquid, which is red in color, was identified as
nitromethane. . . .

Present in specimen Q[4] is a 28 1/4 length of Austin AA-Cord
detonating cord having a high explosive core load of 25 grains
per foot of PETN.

(Emphasis added). No further mention of Whitehurst's dictation is in the
report.

The difference between the dictation and the report is significant. When an
examiner concludes that results are Aconsistent with the presence of a
substance, he is expressing an expert opinion that the substance may be
present in the specimen, but not necessarily (because he has not confirmed
it). Such a conclusion is equivocal. When an examiner Aidentifie[s] the
presence of a substance, or states that the specimen Aha[s] a substance, he
is expressing an expert opinion that the substance is definitely in the
specimen.

Obviously, Whitehurst's dictation was not included in Thurman's report
verbatim, and it appears that Thurman misreported or changed the
analytical conclusions Whitehurst had reached.

Thurman's response is that the opinions expressed in his report were his
own. He chose to omit Whitehurst's dictation entirely.

Thurman explained that Specimens Q1 and Q2 were the two components
which
comprise the Kinestik two-component explosive system, were in their
original packaging, and showed no signs of tampering. Based on his A25+
years of explosive experience, touring factories where these actual
materials were manufactured, and the manufacturer literature in the unit
Explosive Reference Files (ERF), he knew what the specimens contained,
and thus he could Aidentif[y] the substances in the specimens. Thurman
stated that he referred the specimens to the AE only to Aconfirm[]
conclusions he had already drawn. He felt the Aconsistent with results did
confirm those conclusions, and thus he wrote his report as he did.

Thurman stated that during this period he had an arrangement with
Whitehurst for Aconfirmatory exams in which Whitehurst would not
perform all the tests necessary to make an identification. When
Whitehurst reached a conclusion of Aconsistent with in these exams,
Thurman assumed the reason was that Whitehurst had not run all the
tests necessary for an identification. Whitehurst, however, did not recall
having such an arrangement.

Thurman acknowledged in his OIG interview that Ain retrospect it would
have been better to include the AE dictation even though it was only
Aconfirmatory, but he thought he could do it the way he did because his
Unit Chief approved of it.

Thurman also acknowledged that the phrase Awhich was identified was
Aambiguous because it did not indicate who made the identification and
because it could have been misconstrued as an instrumental identification.

Thurman insisted, however, that in all the cases, including this one, Athere
was no attempt, absolutely, on my part whatsoever to mislead anyone.

Thurman also acknowledged Aon hindsight and with the standards that
we have today that it is inappropriate to positively identify a substance, as
he did in this case, solely from the physical characteristics and the fact that
the substance was in its original packaging.

Thurman's response is basically the same with respect to Specimen Q4, the
detonating cord. From its physical appearance Thurman recognized the
specimen as a particular detonating cord manufactured by Austin Powder
Company, which uses PETN in this particular cord according to the ERF.
Hence, he believed, as an expert in explosives, he could say that the cord
Aha[d] PETN, when Whitehurst found the instrumental results
Aconsistent with PETN.

Based on the packaging, absence of evidence of tampering, physical
characteristics, and Thurman's experience, we conclude that he could
reasonably and properly presume that the specimens were what they
appeared to be. Nevertheless, as Thurman largely acknowledged, his
report was poorly drafted in several respects. First, it not only failed to
include the AE dictation verbatim, it omitted it entirely. This was contrary
to an unwritten FBI rule, but was apparently sanctioned by Thurman's
unit chief.

Second, the report was misleading. We cannot reject Thurman's OIG
testimony that he had no intent to mislead, but the reader could easily
assume that when the report said a substance was Aidentified, this meant
the substance was identified scientifically. Thurman should have stated
explicitly in the report that the Aidentification was made from the
packaging and physical characteristics.

Third, it was imprecise for Thurman to say he had Aidentified the
substances. In a forensic science sense, the only way to identify a chemical
material is by some defensible form of analysis. Just recognizing the
packaging and physical characteristics is insufficient.

Fourth, the arrangement that Thurman claims he had with Whitehurst, in
which Whitehurst would not perform all the tests necessary to reach a
positive identification, was inadvisable. Because Whitehurst presumably
did not run all appropriate tests and could only say the results were
Aconsistent with the presence of the substances, he did not really Aconfirm
Thurman's understanding as to the substances' identities. Had Whitehurst
conducted a full analysis, he presumably could have made positive
identifications, which would have mooted the issues raised by this case.

Finally, Thurman acknowledged that his report, in part, did not meet Athe
standards that we have today. We note that the report here was written in
1992 and that the standards then were not significantly different from the
standards now.

b. Case 80803018

In this case the dictation stated that the results for certain specimens were
Achemically consistent with PETN and TNT. Thurman's report stated
that one specimen contained a powder Aidentified as PETN and the other
specimen Acontain[ed] TNT. Thurman explained that his language was
based on reports from a Spanish laboratory. He acknowledged that he
should have stated the source of his identifications in the report.

The report also stated that two specimens Aare from the same source,
although the AE dictation only says one sample Aresembles the other. The
two samples had some common characteristics (same waxes and
percentage of aluminum), but there is no basis in the reports to conclude

that they were necessarily from the same source. In his OIG interview,
Thurman could offer no explanation for his statement that the specimens
came from the same source.

We conclude that this report is deficient because it failed to mention the
Spanish laboratory and because it contained an unsubstantiated
conclusion that two of the specimens came from the same source.
Additionally, Thurman erred in his 1995 response to the allegations when
he stated that the meaning of the dictation was not changed.

c. Other Cases

The other eleven cases present issues similar to those presented above.

In Case 70928045 (1987) the dictation stated that ASpecimen Q4 has the
chemical and physical characteristics of C-4 and AWhite powder found in
specimen Q6 has the physical and chemical characteristics of . . . PETN.
The report stated that C-4 was Aidentified and Q6 Acontain[ed] PETN.
Thurman felt he could use this language because he recognized both
specimens from their distinctive physical characteristics--specimen Q4 was
labeled ADemolition M112 and specimen Q6 was a particular detonating
cord made by the Coast Fuse Company.

In Case 90823043 (1989) the dictation stated, AIt is the opinion of this
examiner that the residues in Q6 originated from a low explosive mixture
which contained Pyrodex. The report stated, APresent in specimen Q6 are
explosive residues which chemical analysis show to have originated from a
low explosive mixture which contained Pyrodex. Thurman insisted that he
did not eliminate the language concerning the AE's opinion to avoid the
suggestion that there was an examiner, in addition to the EU examiner,
that might have to testify.

In Case 81108029 (1988) Thurman replaced the phrase Aconsistent with
TNT with Adetermined to be TNT because he recognized distinctive flakes
of TNT. Thurman acknowledged that based on his 1996 standards he
would not make a positive identification solely on the physical appearance
of the TNT.

In Case 20416043 (1992) reference to Achemical and physical analyses and
the chemical name for RDX were eliminated. Both the dictation and report
used the word Aidentified. The changes here were not material.

In Case 20618039 (1992) Thurman identified the specimen as a particular
military blasting cap and stated in the report that it contained lead
styphnate and lead azide, although the AE did not test for these
substances. Thurman acknowledged that Alogically it would have been
better only to say that such chemicals Anormally are in the particular
blasting cap.

In Case 80217150 (1988) the dictation stated that the specimen, from a
blasting cap, had the Achemical and physical characteristics of a mixture
of certain chemicals, while the report stated that the specimen was a
blasting cap Acontaining the chemicals. Thurman explained that when he
extracted the chemicals from the cap they Acommingled. Thurman
acknowledged as a Apoint[] well taken that he could have stated that the
AE found a Amixture but that the mixture occurred in the extraction
process.

Case 90623042 (1989) involved, according to Thurman, Aan oversight by
him, in which he stated that the analytical results were Aconsistent with
the presence of PETN when the AE stated that the results Aidentified the
presence of PETN. Of the thirteen cases analyzed in this subsection, this is
the only one in which Thurman Aaltered the dictation to make the findings
less definite. On the surface, the change here would seem to rebut the

notion that there was a pattern of overstating the significance of the AE's
dictation. Upon analysis, however, this case seems to be Athe exception
that proves the rule. According to Thurman, all the alterations except this
one were intentional. But for Thurman's Aoversight, the pattern would be
unvarying.

In Case 91207016 (1989) the dictation stated (1) that the results of the
analyses were Aconsistent with residues of certain chemicals and (2) that
A[i]t is the opinion of this examiner that the explosive was most likely a
homemade mixture of those chemicals Aand an undetermined fuel. The
report stated that the results of the analyses were Aconsistent with
residues of the chemicals Aand an undetermined fuel. By combining the
two sentences in the dictation into one sentence in the report, Thurman
implied that the AE found residues of the undetermined fuel, which was
incorrect. Additionally, the report stated that Athe absence of identifiable
remains could indicate that a non-electric means of main charge initiation
was used. Explosives residue examiners maintain that such initiators do
leave identifiable remains. Thurman now reports that no Aconstruction
materials can be recovered from such initiators. The problem here may
have derived from the word Aremains, which Thurman used to mean
unconsumed materials and the explosives residue examiners interpreted to
include residue from consumed materials.

In Case 71224001 (1987) the discrepancy between Whitehurst's dictation
and the report was explained by the fact that Thurman also used an AE
from the CTU in addition to Whitehurst. Also, Whitehurst's language (the
specimen Ahad the chemical and physical characteristics of a substance)
was changed to the specimen Awas determined to be the substance.
Thurman claimed not to believe he was changing the meaning of the
dictation.
In Case 91130017 (1989) Thurman supervised an agent-in-training who
wrote a report that substantially altered the AE dictation in several
respects (e.g., Aconsistent with residue of certain powder was changed
without authorization or justification to Aoriginated from the powder).
Thurman acknowledged his Aresponsibility for these errors. Thurman
also erred in his 1995 response to the allegations when he stated that the
AE dictation Awas not changed.

In Case 21118013 (1992) Thurman stated that the only explosive
constituent of U.S. military C-4 is RDX. This is incorrect. HMX is also a
component. Thurman stated he omitted mention of HMX Aso that it would
not be misunderstood by the reader -- a reason we find unpersuasive.

III. Burmeister's Allegation

Case 30422012 involved the explosion of a pipe bomb in the school library
of the William Wirt Middle School. Burmeister, as AE, examined wood
and book fragments that were struck by the bomb, and he found residues
that he subjected to instrumental analysis. His results were Aconsistent
with residues Aformed upon the initiation of some black powders.
Burmeister did not examine the recovered metal fragments (which were
presumably from the pipe of the pipe bomb) apparently because Thurman
sent them to the fingerprint section instead of to Burmeister.

Thurman, as PE, stated in his report:

Present in the submitted specimens are the fragmented
remains of an exploded Improvised Explosive Device/pipe
bomb (IED) which utilized a low explosive main charge,
consistent with black powder, that was contained within a
sealed length of metal tubing. Although not present in the
submitted specimens, this device was logically initiated
through a nonelectrical fuzing system consisting of a length of
burning-type fuse. Fuse of this type, such as, hobby or
fireworks fuse, consumes its length when burning and leaves
little, if any, residues or unburned fuse which can be
recovered following the explosion of the IED.

Before this report was issued, Burmeister complained to Thurman about
two aspects of the passage quoted above. First, Burmeister disagreed with
the statement that the main charge was Aconsistent with black powder,
since Burmeister did not examine the pipe fragments and the residue on
the wood and books could have come from the fuse. Second, Burmeister
disagreed with the statement that a Aburning-type fuse . . . leaves little, if
any, residues. Thurman, however, chose not to change the report.
Burmeister also complained to Kearney about these matters. Nevertheless,
the report went out unchanged, and nothing was ever done about it.

As to the issue concerning the main charge, Thurman acknowledged in his
OIG interview that the residue found by Burmeister could have come from
the fuse. As to the issue concerning the fuse, Thurman stated that he only
meant that such fuses do not leave any Aunconsumed fuse, not that they
would not leave Arecoverable explosive residue. Thurman acknowledged
he should have said Aconstruction materials instead of residue.

We conclude that Burmeister's objections were valid and Thurman should
have revised the report accordingly. We further conclude that Kearney
erred when he took no corrective action after Burmeister informed him of
the objections.

IV. Conclusion

We conclude that Ronay improperly allowed EU examiners to revise
dictation without consulting the AE. Kearney recognized that Ronay's
inadequate review of reports contributed to the problem of Thurman's
revision of Whitehurst's dictation. We also note that during Ronay's
tenure as EU Chief, another EU examiner (Higgins) also altered
Whitehurst's dictation in many of the same ways Thurman did. See Part
Three, Section H11, infra. Ronay, however, had already left the FBI by the
time Corby finished his review of Thurman's reports. During Ronay's last
month in the FBI, Kearney authored a memorandum issued by Ahlerich

requiring thorough substantive review of reports by unit chiefs and
verbatim inclusion of AE dictation.

Of the fifty-two reports written by Thurman in which Whitehurst was the
AE, only twenty included the dictation verbatim. This violation of the
Aunwritten LD rule is attributable largely to Ronay. We conclude that
Thurman is also responsible (1) for ambiguities and errors in his reports
and (2) for not revising his report in the William Wirt Middle School case
in accordance with Burmeister's objections.

Although there seems to be a pattern here of overstating AE dictation,
which normally would be favorable to the prosecution, we do not find that
Thurman intended to write reports with a prosecutorial bias. We
recognize the responsibility of the PE to produce a report to the submitting
agency for investigative purposes providing as much information as
possible within the constraints of reasonable scientific principles. The
report should convey an expert opinion based upon all information
available in a form that is understandable to the layperson and
scientifically accurate. Thurman asserts that his only intent was to fulfill
this responsibility, and there is no concrete evidence to the contrary.
Nevertheless, the alterations to the dictation that we have identified were
inappropriate and could have misled the finder of fact.

We also conclude that it would have been preferable for Nimmich to have
done in 1992 what was later done in 1994-95 -- namely, (1) requiring a
review of all of Thurman's reports in which Whitehurst was the AE, and
(2) putting in writing the rule requiring verbatim inclusion of dictation.

As to Kearney, we conclude that he should have directed that a revised
report be issued in the William Wirt Middle School case. We do not find
fault with his handling of the Whitehurst allegations because the main
person responsible was Ronay who had already left the FBI by the time the
review was completed. On the other hand, it appears that Kearney was

incorrect in his conclusion that the practice of altering AE dictation was
Aisolated to Thurman. See, e.g., Part Three, Section H11, infra.

Finally, as discussed in Part Six, infra, we recommend that each examiner
submit and sign his or her own report. Adoption of this recommendation
would alleviate the problems identified in this section.

#####

SECTION H11: HIGGINS' ALLEGED ALTERATION OF DICTATION

I. Introduction

In late June 1996, we asked Whitehurst about differences that we had observed
between Whitehurst's dictations and the Laboratory reports prepared by
Explosives Unit examiner Wallace Higgins in certain cases. Whitehurst
subsequently wrote to the OIG expressing concern that Higgins may have
improperly changed his dictations in these cases as well as other Laboratory
cases. According to Whitehurst, these unauthorized changes to his dictations
violated FBI Laboratory policy. At the time, the unwritten policy in the
Laboratory required that principal examiners incorporate auxiliary examiner
dictations into reports verbatim unless the auxiliary examiner agreed to the
changes.

To determine the extent and significance of any changes, we obtained
Laboratory reports prepared by Higgins in 69 Laboratory cases in which
Whitehurst served as the auxiliary examiner. We also reviewed the
corresponding dictations where available, along with work papers, notes, and
charts where appropriate. We also interviewed former Materials Analysis Unit
Chief James Corby, former Explosives Unit Chief J. Christopher Ronay,
Chemistry-Toxicology examiner Ronald Kelly, former Materials Analysis Unit
examiner Mary Tungol, former Explosives Unit secretary LaTonya Gadson,
Whitehurst, and Higgins. During our first interview about these alleged
changes, Higgins terminated the interview early and refused to voluntarily
complete the interview. As a result, we had to administratively compel Higgins
to appear and complete the interview.

We find that in 29 Laboratory cases, Higgins included Whitehurst's dictations
verbatim or made insignificant transcription errors. In six Laboratory cases,
Higgins altered Whitehurst's dictations without Whitehurst's authorization, but
did not materially change the meaning of the dictations. In 13 Laboratory cases,

Higgins prepared Laboratory reports that contained substantive changes to the
meaning of Whitehurst's dictations without Whitehurst's authorization.
Specifically, Higgins misreported the number of specimens that Whitehurst had
examined, omitted important qualifying language from the dictations,
eliminated Whitehurst's forensic opinion altogether, changed Whitehurst's
findings, or identified the presence or absence of chemical compounds not
identified by Whitehurst. Finally, in 21 Laboratory cases, we could not reach a
conclusion as to whether Higgins changed Whitehurst's dictations because the
FBI could not locate and provide Whitehurst's dictations for comparison
purposes.

In the body and conclusion of this section, we provide the bases for our
conclusions that Higgins did not have authorization to change these reports. We
also make further findings and recommendations in the conclusion of this
section.

II. Factual Background

As explained in Part Two of this Report, although many examiners from
different units in the FBI Laboratory may work on a given Laboratory case,
only one examiner, the principal examiner, issues the final Laboratory report.
The auxiliary examiners submit their reports or dictations to the principal
examiner for inclusion in the final Laboratory report. Before submitting their
dictations to the principal examiners, auxiliary examiners provide the dictations
to their unit chiefs, who edit and approve the dictations. Similarly, before
issuing the final Laboratory report, the principal examiner submits the
Laboratory report to his or her unit chief for review and approval. When the
principal examiner issues the final Laboratory report, he or she is supposed to
send the report, dictation, and accompanying workpapers to the official FBI
case file.

In order to compare Whitehurst's dictations as approved by his unit chief with
the final Laboratory reports prepared by Higgins, we asked the FBI to provide
copies of Laboratory reports, approved dictations and, in some cases, the entire

official FBI case file. The FBI produced Laboratory reports prepared by
Higgins in 69 Laboratory cases, but could not locate Whitehurst's dictations in
21 of those Laboratory cases. With respect to many of these 21 Laboratory
cases, Whitehurst furnished copies of the dictations, which he reprinted from
his computer hard drive. However, because Whitehurst prepared these
computer versions of the dictations before editing and review by his unit chief,
we determined that we could not rely on these computer versions of the
dictations as the final, approved dictations in these cases. Therefore, we did not
reach any conclusion as to whether Higgins altered Whitehurst's dictations
without permission in these 21 cases.

In addition to gathering these documents, we interviewed Whitehurst, Higgins,
Corby, and Ronay at length about their practice with respect to documenting
changes to auxiliary examiner dictations. Whitehurst stated that if he agreed to
any such changes, he would edit the dictations in his computer and reissue the
dictations to his unit chief for approval. Whitehurst made clear that he would
generate a new dictation for even minor changes. Corby confirmed that when
MAU examiners agreed to change their dictations, they were supposed to initial
the changes or prepare new dictations incorporating the changes. Corby added
that he also asked his examiners to send substantial changes to him for review,
although he did not recall any particular case in which Whitehurst sent such
revisions to him. Corby added that he believed that when Whitehurst agreed to
change his dictations, Whitehurst would generate new dictations or initial the
dictations and bring them to Corby for review.

Higgins told us that during this period, he frequently asked Whitehurst to
clarify his dictations and then incorporated the resulting changes directly in the
Laboratory report. Higgins denied that he ever changed Whitehurst's dictations
in substance without Whitehurst's permission. Higgins said that he would not
necessarily document his conversations with Whitehurst or send Whitehurst a
copy of the final Laboratory report containing the changes. Higgins observed
that there was no Laboratory policy that required such documentation of these
changes.

Ronay stated that during this time period, however, he told Explosives Unit
examiners to create a record whenever Whitehurst agreed to make changes.

Ronay added that to the best of his recollection, Explosives Unit examiners
would document such changes by making a notation on the dictations or the
Laboratory worksheets. Ronay also recalled that in 1992 or 1993, he met with
Corby and SAS Chief James Kearney and agreed that examiners in the
Explosives Unit would incorporate Whitehurst's reports verbatim. According to
Ronay, as part of that agreement, Whitehurst was supposed to re-issue his
dictations initialed by Corby if Whitehurst agreed to any changes.

III. Analysis of Laboratory Reports

The FBI produced 69 Laboratory reports prepared by Higgins between August
1990 and May 1994 in cases in which Whitehurst provided dictations. For the
purpose of our analysis, we assigned sequential numbers to those Laboratory
reports and grouped the reports in three categories:

Category One includes all Laboratory cases in which Higgins did
not alter Whitehurst's dictations or made an insignificant
transcription error.
Category Two includes all Laboratory cases in which Higgins
altered Whitehurst's dictations without Whitehurst's authorization,
but did not materially change the meaning of the dictations.

Category Three includes all Laboratory cases in which Higgins
altered Whitehurst's dictations without Whitehurst's authorization
and materially changed the meaning of the dictations.

As noted above, we did not attempt to analyze or categorize Laboratory reports
in the 21 Laboratory cases in which the official FBI case files did not contain
Whitehurst's dictations.

We list the 69 Laboratory reports, their dates, and their categories in Chart A at
the end of this section. We set forth our findings in the following sections.

A. Category One

Twenty-nine Laboratory case reports fall under Category One. In most of those
Laboratory case reports, Higgins presented verbatim versions of Whitehurst's
dictations in the Laboratory reports. In three of the Laboratory reports, Higgins
reproduced the dictations with a transcription error. See Report Nos. 19, 27,
and 44. In two of these Laboratory reports, Higgins did not incorporate
Whitehurst's dictations and thus did not change the dictations in any fashion.
See Report Nos. 8 and 50.

B. Category Two

Six Laboratory case reports fall under Category Two, which includes
Laboratory reports containing grammatical changes to Whitehurst's dictations
that did not materially change the meaning of the dictations.

In Report No. 2, Higgins' Laboratory report reordered two sentences from
Whitehurst's dictation. In Report Nos. 5 and 43, Higgins' Laboratory reports
added the words specimen and specimens before the questioned sample
numbers. In Report No. 15, Higgins added the words in the cans in place of in
them. In Report No. 18, Higgins substituted words, made grammatical changes,
and made a minor transcription error. In Report No. 45, Higgins rewrote
sentences from Whitehurst's dictations. Many of these changes tended to clarify
Whitehurst's dictations and thus improved them without affecting their
substance.

Whitehurst stated that he did not give Higgins permission to make even nonsubstantive changes to his dictations, and that he would have generated new
dictations and submitted them to Unit Chief Corby had he done so. Higgins, on
the other hand, told us that in 1991 and for some time thereafter, he understood
that principal examiners were permitted to make grammatical changes to
auxiliary examiner dictations without authorization, as long as the changes
were not substantive. Explosives Unit Chief J. Christopher Ronay likewise told
us that during this time period, he would approve unilateral changes to
Whitehurst's dictations as long as they did not substantively change the
findings.

Even though the changes above did not materially change the meaning of
Whitehurst's dictations, they did constitute technical violations of the
Laboratory's policy requiring verbatim reporting of dictations. We do not
conclude that Higgins purposely violated Laboratory policy, however, because
it appears that Ronay authorized Explosives examiners to make such nonsubstantive changes. In this respect, Ronay was at fault for allowing Explosives
Unit examiners to unilaterally make changes they determined to be
nonsubstantive, since Explosives Unit examiners lacked the qualifications to
determine whether changes to explosive residue analyses are substantive and
such changes violated the rule requiring verbatim inclusion of dictations.

C. Category Three

Thirteen Laboratory reports fall under Category Three, which includes
Laboratory reports in which Higgins changed the meaning of Whitehurst's
dictations without authorization. In these reports, Higgins misreported the
number of specimens that Whitehurst had examined (Report No. 34), omitted
important qualifying or explanatory language from the dictations (Report Nos.
13, 16 and 36), eliminated Whitehurst's forensic opinion altogether (Report
Nos. 20, 22, 35, 36, 46, and 47), changed Whitehurst's findings (Report Nos.
17, 20, 34, and 46), or identified the presence or absence of chemical
compounds not identified by Whitehurst (Report Nos. 17, 20, 30, 37, 42, and
47).

1. Report No. 13. With respect to Report No. 13, Higgins omitted important
explanatory language from Whitehurst's dictation. Whitehurst stated in his
dictation, in part:

The results of chemical and physical analysis of specimen Q1 are
consistent with the presence of residues of a low explosive
mixture based on perchlorate and nitrate oxidizers. Such residues
could have resulted from commercial and homemade perchlorate
flash powders initiated with a black powder fuse or a low
explosive mixture composed of nitrate and perchlorate oxidizers. []

Higgins omitted the underscored clause and simply reported: Such residues
could have resulted from commercial and/or homemade perchlorate flash
powders.

Higgins told us that he would not have omitted the underscored passage
without Whitehurst's permission. However, Whitehurst stated that he did not
authorize the omission of this passage. Whitehurst indicated that he purposely
included this clause to explain the presence of the nitrate ions in the residues. It
is unlikely that Whitehurst agreed to remove the passage. The resulting
Laboratory report suggests that a commercial and/or homemade perchlorate
flash powder alone could have been the source of the nitrate ions seen by
Whitehurst. Whitehurst clearly knew that straight flash powder could not be
such a source. The evidence indicates that Higgins omitted this language
without authorization from Whitehurst.

2. Report No. 16. In Report No. 16, Higgins again omitted explanatory
language. In his dictation, Whitehurst stated in part: The results of preliminary
chemical and physical analysis of specimen Q1 are consistent with the presence
of TNT. Report No. 16, however, omits the word preliminary and states:
Instrumental and physical analysis of specimen Q1 are consistent with the
presence of Trinitrotoluene (TNT).

Higgins could not recall the circumstances that prompted removal of the word
preliminary, but acknowledged that such a change would be substantive. On the
other hand, Whitehurst stated that he did not change the report. Whitehurst also
reviewed the official FBI case file and found no evidence that he had agreed to
remove the word preliminary. By designating the results as preliminary,
Whitehurst told the reader that the results were not confirmed and therefore
additional testing was needed. The omission of the word preliminary in Report
No. 16 made the testing appear more complete than it actually was. We think
that Higgins erred in omitting this qualifying language.

3. Report No. 17. Report No. 17 contains two substantive changes to
Whitehurst's dictation. First, Whitehurst reported in his dictation:

The results of chemical and physical analysis of specimen Q4 are
consistent with the presence of components of a blasting cap
composed of a PETN base charge, polyvinylchloride insulated leg
wires and an electric match composed in part of zirconium.

In Report No. 17, however, Higgins reported: Instrumental analysis of the main
charge inside the detonator reveals it as pentaerythritol tetranitrate (PETN).

When we asked Higgins about this passage, Higgins could not recall how this
change had occurred. Higgins observed that Report No. 17 is dated October 3,
1991, and Whitehurst's dictation is dated October 23, 1991. Thus, Higgins
suggested that he possibly received this information verbally from Whitehurst
before Whitehurst issued his dictation. Whitehurst, however, doubted that he
verbally communicated any results to Higgins. Whitehurst also could not
explain the discrepancy between his dictation and Report No. 17. Given this
record, and especially the dates of these reports, we are unable to determine
whether Higgins received and purposely changed Whitehurst's dictation
regarding PETN.

In the same dictation, Whitehurst also reported: No indication of the presence
of lead organic primary explosive was found. Report No. 17 did not include
this sentence, but instead reported: An electrical match inside the detonator
initiates lead styphnate and lead azide which in turn initiates the PETN.
Higgins explained that he added this statement based on his own x-ray work
showing a high density material. When pressed, Higgins acknowledged that his
x-ray work did not specifically identify lead azide and lead styphnate. Higgins
also stated that it would have been more correct to report that the electric match
in a detonator commonly initiates lead styphnate and lead azide. We agree that
Higgins' statement is not supportable in this case. Higgins could not determine
from an x-ray image alone that the high density material was lead styphnate
and lead azide. Furthermore, Higgins had no reason even to suggest that lead
compounds might be present, absent some indication from the chemical
analyses by Whitehurst. Higgins erred in adding this sentence.

4. Report No. 20. With respect to Report No. 20, Higgins misreported
Whitehurst's findings and omitted part of Whitehurst's forensic opinion.
Specifically, Whitehurst reported in his dictation:

The results of these analyses [of specimens K1 and K2] are
consistent with the presence of a mixture of aluminum powder,
sulfur and potassium perchlorate. The combination of these
materials form a low explosive/energetic mixture generally
referred to as flash powder.

Higgins included this paragraph, but then added the following in Report No.
20:

The two items in specimen K1 contained approximately 45.4
grams and 41.9 grams of flash powder. The two items in specimen
K2 contained approximately 3.7 grams and 4.3 grams of flash
powder.

Additionally, while Whitehurst reported that he could not confirm the presence
of perchlorate ions on specimen Q1, Higgins went farther and added that no
low explosive energetic material residue could be detected on specimen Q1.
Whitehurst reported that he did not authorize these changes.

Higgins acknowledged that he made these changes to Whitehurst's dictation
without conferring with Whitehurst. Higgins stated that we were splitting hairs
and arguing semantics by suggesting that these alterations changed the meaning
of the dictation. Higgins added that he reported the absence of all low
explosives energetic materials based on his assumption that Whitehurst had
looked for and failed to find any such materials. Higgins also told us that he did
not think that these changes would raise an issue if the matter went to trial,
since he and Whitehurst could simply testify to their respective opinions.

Contrary to Higgins' suggestion, these changes would be difficult to explain at
trial. While Whitehurst only reported results consistent with flash powder,
Higgins indicated that the Laboratory had positively identified flash powder in
specimens K1 and K2. Similarly, while Whitehurst ruled out only perchlorate
ions, Higgins reported the absence of all low explosive energetic materials,
including perchlorate compounds and many other materials. Higgins erred in
altering Whitehurst's dictation.

Additionally, with respect to Report No. 20, Higgins failed to include the
following underscored sentence from Whitehurst's dictation:

Residue from specimen Q1 was analyzed with high performance
liquid ion chromatography and capillary ion electrophoresis.
These analyses could not confirm the presence of perchlorate ions.
Therefore an opinion can not be rendered concerning the possible
common origin of the flash powder mixtures found in K1 and K2
and the energetic material which caused the explosive damage
found on items in specimen Q1.

Higgins could not explain why this sentence was omitted. Higgins stated that
he would not have omitted the sentence without first speaking with Whitehurst.
Whitehurst, on the other hand, told us that he would not have authorized the
removal of this sentence. As will be seen, this is only one of several cases
involving the selective omission of Whitehurst's forensic opinion. Given this
pattern and Whitehurst's statement, we think that Higgins erroneously omitted
Whitehurst's opinion in Report No. 20 without authorization.

5. Report No. 22. With respect to Report No. 22, Higgins again omitted a
sentence from the dictation that expressed Whitehurst's forensic opinion.
Specifically, Higgins omitted the following underscored sentence:
The results of the analyses are consistent with the presence of
residues of double-based smokeless powder.

It is the opinion of this examiner that the energetic material
utilized in specimens Q1 and Q2 was at least in part double based
smokeless powder.
Higgins told us that he did not recall the circumstances leading to the removal
of this sentence. Higgins stated that he would have spoken with Whitehurst
before making such a change. Higgins added that he did not consider the
change to be substantial because Whitehurst said the same thing in the prior
sentence. Whitehurst told us that he did not authorize the omission of this
sentence and considered this to be a substantial change. Whitehurst added that
he purposely stated that the specimen was in part a double-base smokeless
powder because his chemical analysis could not exclude the possibility that
other materials were present before the explosion.

By using this language, Whitehurst signaled to the reader that other chemicals
could have been present. The two sentences were not repetitive, since
Whitehurst reported his findings in one sentence and his forensic opinion based
on those findings in the next. Thus, we consider this change to be substantive.
In view of Whitehurst's insistence that he purposely included this language, we
think that Higgins omitted this sentence erroneously.

6. Report No. 30. In Report No. 30, Higgins reported a more positive
identification of explosive material than authorized by Whitehurst. Specifically,
Whitehurst prepared the following dictation with respect to specimen Q1 in
Report No. 30:

The results of these analyses are consistent with the presence of a
moldable plastic explosive composed of 95% cyclotrimethylenetrinitramine (RDX), 2% poly (vinyl isobutyl ether) and the
remainder a hydrocarbon oil and small amounts of phthalate
plasticizer. The RDX explosive portion was not contaminated
with HMX.

Higgins reproduced this dictation verbatim in Report No. 30 under the heading,
Instrumental Analysis, but then immediately added: These results are consistent
with a PE-4A explosive manufactured in Portugal.

Whitehurst told us that he did not authorize the addition of this sentence.
Whitehurst added that he did not have sufficient information about the formula
for Portuguese PE-4A to permit him to make this statement. Higgins
acknowledged that he did not obtain Whitehurst's permission to include this
sentence, but stated that the sentence reflected his own opinion after examining
the wrapper containing specimen Q1. Specifically, Higgins told us that the
wrapper referred to PE-4A and SPE or Society of Portuguese Explosives.
Higgins added that he was aware that the Laboratory had previously detected
PE-4A in similar wrappers.

We think that Higgins' identification of the material as consistent with
Portuguese PE-4A was potentially misleading. By placing this sentence under
the heading, Instrumental Analysis, and referring to [t]hese results, Higgins
suggested that the examiner performing the instrumental analyses (Whitehurst)
had determined that the chemical results were consistent with Portuguesemanufactured PE-4A. In fact, Higgins had reached that conclusion based

primarily on the wrapper, not the particular chemical results obtained by
Whitehurst. If Higgins wished to include this opinion, he should have
separately reported the information as his own opinion and more clearly
identified the basis for the opinion.

7. Report No. 34. In Report No. 34, Higgins misreported the number of
specimens that had been examined and identified compounds more positively
than reported by Whitehurst.

Specifically, in connection with Report No. 34, the Laboratory received two
electric blasting caps (detonators) labeled specimens Q3 and Q4. Whitehurst
examined only specimen Q4 and reported in his dictation:

The results of chemical and physical analyses of specimen Q4 are
consistent with the presence of explosive materials found in a
blasting cap composed of a PETN high explosive base charge,
lead azide and lead styphnate primary explosive and an initiating
material based on a nitrate/chlorate low explosive mixture.

In Report No. 34, however, Higgins rewrote Whitehurst's dictation and,
referring to specimens Q3 and Q4, reported:

The results of chemical and physical analyses of the components
of the detonators determined they have a base charge composed of
PETN with lead azide and lead styphnate used to initiate the
PETN. The material used to initiate the lead styphnate and lead
azide is a nitrate/chlorate low explosive mixture.
Higgins told us that he made this change after a lengthy discussion with
Whitehurst. During that discussion, according to Higgins, Whitehurst stated
that specimens Q3 and Q4 looked the same, and therefore Whitehurst only
analyzed one of the specimens. Whitehurst, however, told us that his notes did

not reflect any discussion with Higgins about specimens Q3 and Q4. Moreover,
Whitehurst stated that one could not safely assume that specimens Q3 and Q4
were identical without examining both specimens. We think that Higgins erred
in writing Report No. 34 to indicate that both detonators had been examined.
By his own admission, Higgins knew that Whitehurst had not examined the
detonator labeled specimen Q3. Higgins should have reported Whitehurst's
dictation as written or requested new dictation from Whitehurst concerning
specimen Q3.

Additionally with respect to Report No. 34, Whitehurst reported in his dictation
that the material in the detonator was consistent with the presence of explosive
materials found in a blasting cap composed of a PETN high explosive base
charge, lead azide and lead styphnate primary explosive and an initiating
material based on a nitrate/chlorate low explosive mixture. Whitehurst further
reported that the lead wires and the end cap were consistent with the presence
of polyvinylchloride. Higgins, however, reported that the detonators have a
base charge composed of PETN with lead azide and lead styphnate, that the
initiating material is a nitrate/chlorate low explosive mixture, and that the
insulation and end cap are composed of polyvinylchloride.

Higgins stated that he would not have changed or rewritten the dictation
without conferring with Whitehurst. Whitehurst, however, was clear that he did
not authorize these changes. In view of Whitehurst's statement and in the
absence of any documentation of such a change, we conclude that Higgins
altered Whitehurst's dictation without authorization. Higgins should have
reproduced Whitehurst's dictation verbatim or asked Whitehurst to prepare
additional dictation.

8. Report No. 35. With respect to Report No. 35, Higgins made grammatical
changes to Whitehurst's dictation and omitted the underscored opinion that
appears in Whitehurst's dictation:

. . . These analyses identified the presence of Pyrodex propellant
in specimen Q5. The results of analyses of material on specimen

Q2 are consistent with the presence of residues of Pyrodex
propellant.

It is the opinion of this examiner that the energetic material
originally found in specimens Q2 and Q5 consisted in part of
Pyrodex propellant. Pyrodex is a commercial propellant
manufactured by Hodgdon Powder Company. This propellant can
function as a low explosive if properly confined and initiated.

Higgins could not explain why the underscored sentence was not in Report
No. 35. Higgins stated that he would have talked to Whitehurst before
removing the sentence. Whitehurst, however, told us that he would not have
authorized the removal of the sentence. Whitehurst stated that he could not
exclude the possibility that black powder was present with the Pyrodex, and
therefore he purposely stated that the specimens consisted in part of Pyrodex.
Given this explanation by Whitehurst, we think that Whitehurst did not agree to
omit this opinion sentence. Higgins erred in not reproducing Whitehurst's
dictation as written.

9. Report No. 36. In Report No. 36, Higgins omitted Whitehurst's forensic
opinion and other explanatory language. Specifically, the following
underscored sentences that appear in Whitehurst's dictation were omitted from
Report No. 36:

The presence of chloride, nitrite, nitrate, sulfate and carbonate ion
in the explosive residues is consistent with residues of smokeless
powders, nitrate/sulfur/hydrocarbon energetic mixtures and also
with naturally occurring materials. The relatively large abundance
of carbonate in these residues is also consistent with the use of a
hydrocarbon based, nonefficient energetic mixture. Such mixture
might include improvised explosive components which were
combined in improper ratios leading to inefficient reaction. When
such inefficient energetic materials are initiated, the post initiation
residues normally contain unreacted hydrocarbon fuels such as

sugar, vaseline or charcoal. Microscopic examination did not
reveal any of these materials on the specimens examined but their
absence does not preclude their having been there in the original
energetic mixture.

Whitehurst told us that he did not authorize any changes to this dictation.

Higgins stated that he could not explain why these sentences were omitted from
Whitehurst's dictation. Higgins recalled that he asked Ronay to review the
dictation because another sentence in the dictation encroached upon Higgins'
area of expertise. Higgins told us that he gave the dictation to Ronay and [w]hat
happened after that, I don't know . . . .

Ronay, however, told us that he did not recall the circumstances leading to the
removal of these sentences. Ronay acknowledged that he thought Whitehurst
expressed opinions outside of his area of expertise when Whitehurst wrote
about possible explanations for the presence of residues, and therefore Ronay
did not consider the removal of such opinions to be a substantial change.
However, Ronay stated that he did not recall if he authorized Higgins to omit
such an opinion. Ronay also told us that he would not have changed
Whitehurst's dictation without consulting Whitehurst or Corby.
Contrary to Ronay's suggestion, the omission of Whitehurst's forensic opinion
was a substantive change. In this case, Whitehurst reported in that opinion that
he could not identify certain unreacted hydrocarbon fuels through microscopic
examination, but concluded that their absence did not necessarily preclude their
presence in the original mixture. Although somewhat speculative, this
information was potentially useful in assessing the likelihood that the material
was a hydrocarbon based mixture. As the principal examiner who prepared
Report No. 36, Higgins was responsible for reviewing the report and ensuring
that it included all required dictation, including the missing forensic opinion,
before he issued the report. Given this fact, and the repeated omission of such
forensic opinions, the preponderance of evidence shows that Higgins omitted
Whitehurst's forensic opinion or at least concurred in its omission.

Additionally, in Report No. 36, the Laboratory report prepared by Higgins
omitted the following, underscored language:

The presence of lithium ions is somewhat unique, having been
detected by this examiner in explosives residues only one other
time during the past six and one half years.

Whitehurst again told us that he did not authorize the omission of this language.
Higgins stated that he did not think that he omitted this language. The
underscored language indicates how rare such lithium ions are in this type of
case, and provides potentially useful information to investigators and others.
Because Higgins appeared certain that he did not remove this language, we do
not conclude that he did so. Higgins was responsible for ensuring that the
Laboratory report contained all required dictation, however, a responsibility
that he did not meet in this case.

10. Report No. 37. In Report No. 37, Higgins added a sentence concerning the
absence of accelerants to the section of the Laboratory report containing
Whitehurst's dictation, although Whitehurst did not perform any accelerant
examination.

Specifically, in Report No. 37, Higgins added the following paragraph under
the heading, Analysis of Residues :

An examination of submitted specimens failed to detect the
presence of accelerant however, they may also have never been
present; they may have evaporated during transport and storage;
or may be present in undetectable amounts.

When asked about the origins of this paragraph, Higgins stated that he asked
Whitehurst to check for both explosive residues and accelerants and Whitehurst
reported verbally that he had found no accelerants. Higgins stated that he may
have typed this paragraph as Whitehurst verbally reported these findings to
him.

Whitehurst, however, told us that he was not qualified to do accelerant analysis
and did not do any accelerant analysis in this case. Whitehurst observed that the
Chemistry-Toxicology Unit (CTU) had responsibility for conducting such
accelerant analyses. Whitehurst speculated that if Higgins had raised the issue
of accelerants, Whitehurst might have asked CTU examiner Ronald Kelly
whether it was possible to detect accelerants on the specimens. If Kelly said
that it was not possible to detect such accelerants, Whitehurst might have
passed on that information to Higgins.

The evidence suggests, at best, that Whitehurst and Higgins had a
miscommunication with respect to Report No. 37: Whitehurst possibly told
Higgins that it would be fruitless to conduct accelerant analyses; Higgins may
have understood that Whitehurst had analyzed the evidence for accelerants
without success. In any event, Higgins should not have added to Whitehurst's
dictation without Whitehurst's express permission, but should have reported
Whitehurst's dictation verbatim or requested new dictation from Whitehurst.

11. Report No. 42. In Report No. 42, Higgins identified the presence of
chemical compounds that Whitehurst did not identify. Specifically, in the
dictation for Report No. 42, Whitehurst reported only that a sample from the
main charge consists of approximately 94% RDX high explosive. . . . In Report
No. 42, however, Higgins reported: "The results of an [sic] instrumental
analyses of the main charge reveals that it consists of approximately 94% RDX
and 6% binders. Higgins also made extensive grammatical changes to
Whitehurst's dictation in Report No. 42. Likewise, in a subsequent Laboratory
report in the same case, Higgins reported: "The results of an [sic] instrumental
analyses of the RDX [sic] revealed that it consists of approximately 94% RDX
and 6% plasticizers (binders). See Report No. 17.

Whitehurst told us that he did not authorize Higgins to identify the remaining
composition of the main charge as 6% binders or 6% plasticizers (binders).
Whitehurst added that he did not include such an opinion himself, because he
was unclear as to the remaining composition of the main charge. Whitehurst,
however, stated that he viewed this addition as not that big a deal. Nevertheless,
Higgins was not qualified to report that the remaining constituents were 6%
binders, plasticizers, or any other material. Higgins improperly rendered an
opinion concerning the remaining chemical composition of the main charge and
improperly incorporated that opinion into a sentence reflecting the results of the
instrumental analysis.

12. Report No. 46. In Report No. 46, Higgins omitted a sentence expressing
Whitehurst's opinion and changed Whitehurst's finding. Specifically, the
dictation prepared by Whitehurst for Report No. 46 read in part:

It is the opinion of this examiner that the device represented by
specimen Q1 was composed of a pipe bomb filled with a main
charge of Pyrodex and initiated with a red colored hobby fuse.

In Report No. 46, however, Higgins replaced this sentence with the following:

These results are consistent with a pipe bomb containing a main
charge of Pyrodex and initiated with a red colored hobby type
burning fuse.

The report prepared by Higgins also contained grammatical changes.

Higgins stated that he did not recall making these changes. Higgins also told us
that he did not know why he substituted the phrase consistent with for
composed of. Higgins indicated that he probably showed Whitehurst's dictation

to Ronay because he felt that Whitehurst was venturing into his area of
expertise by describing the device. Whitehurst, on the other hand, told us that
he did not authorize these changes to his dictation. Whitehurst added that he
would have had his unit chief approve any such changes to his dictation. In
view of Whitehurst's statements and the absence of any documentation
supporting these changes, we conclude that Higgins erred in not reproducing
Whitehurst's dictation verbatim.

13. Report No. 47. In Report No. 47, Higgins omitted Whitehurst's forensic
opinion and also reported the absence of chemical compounds not mentioned
by Whitehurst. Specifically, Higgins omitted the following underscored
sentences that appear in Whitehurst's dictation:

The results of chemical analyses of specimen Q3 are consistent
with the presence of RDX high explosive.

Chemical analyses of specimen Q6 did not find any RDX high
explosive.

It is the opinion of this examiner that RDX found on specimen Q3
could have come from PE-4A high explosive. PE-4A is a British
explosive which according to information held by the FBI
Laboratory records contains RDX.
Higgins told us that he discussed the underscored paragraph with Whitehurst.
According to Higgins, he suggested that Whitehurst remove the paragraph
because the British explosive is called PE-4, not PE-4A and because the RDX
on specimen Q3 could have come from other explosives as well. Whitehurst,
however, did not recall authorizing the removal of this paragraph. Whitehurst
stated that if he had agreed to the change, he would have documented this
change by having Corby approve new dictation. In view of Whitehurst's
statements and the absence of any documentation of this change, we think that
Higgins erred in not reporting Whitehurst's dictation verbatim or requesting
new dictation from Whitehurst.

Additionally, Whitehurst reported in his dictation for Report No. 47 that the
[c]hemical analysis of specimen Q6 did not find any RDX explosive. Higgins,
however, replaced this sentence in Report No. 47 with the following:
Specimen Q6, a [sic] residue obtained from a pair of men's black
slip-on shoes, size 12, labeled Lidfort and made in Italy, was
chemically analyzed and no trace of RDX or any organic or
inorganic explosive was found.

Higgins told us that he would not have referred to organic or inorganic
explosives without checking with Whitehurst. Whitehurst, however, stated that
he did not authorize this addition to his dictation and could not explain how
Higgins reached this conclusion. Whitehurst reviewed the case file for Report
No. 47 and did not find any indication that he had altered his dictation in
response to a request from Higgins. In view of Whitehurst's statement that he
did not authorize this addition and the absence of any documentation, we
conclude that Higgins again improperly changed Whitehurst's dictation.

D. The Remaining 21 Laboratory Reports

The FBI could not locate and produce Whitehurst's final and approved
dictations for comparison purposes in 21 Laboratory cases. The FBI told us in a
letter that

[a]ny of the following could explain the absence of a document,
such as signed AE dictation, from a Bureau file: the person
responsible for sending the document to the central files failed to
do so; the document was sent to be filed but did not reach the file
room; and the document reached the file room but was misfiled.
FN: Although it would be improper for an employee to remove a
properly filed document from a file, this is a possibility.

Higgins likewise told us that he did not know where we might look for missing
dictations at this time. Higgins stated that he generally placed the auxiliary
examiner's dictations in the official FBI case file or sent them to the official
FBI case file with a routing slip. Higgins added that the dictations may have
been submitted as an exhibit at trial, although he considered that possibility to
be unlikely. Higgins acknowledged that it was the principal examiner's
responsibility to send the auxiliary examiner's dictations to the official FBI case
file.

Absent these dictations, we could not determine whether Higgins made changes
in these 21 Laboratory cases.

IV. Conclusion

We reviewed Laboratory reports prepared by Higgins in 69 Laboratory cases in
which Whitehurst served as an auxiliary examiner. In 29 Laboratory cases,
Higgins either did not change Whitehurst's dictations or made insignificant
transcription errors. In six Laboratory cases, Higgins altered Whitehurst's
dictations without Whitehurst's authorization, but did not materially change the
meaning of the dictations. In 13 Laboratory cases, Higgins prepared Laboratory
reports that contained material changes to the meaning of Whitehurst's
dictations without Whitehurst's authorization. In these reports, Higgins
misreported the number of specimens that Whitehurst had examined (Report
No. 34), omitted important qualifying or explanatory language from the
dictations (Report Nos. 13, 16 and 36), eliminated Whitehurst's forensic
opinion altogether (Report Nos. 20, 22, 35, 36, 46, and 47), changed
Whitehurst's findings (Report Nos. 17, 20, 34, and 46), and identified the
presence or absence of chemical compounds not identified by Whitehurst
(Report Nos. 17, 20, 30, 37, 42, and 47). We were not able to reach conclusions
regarding the remaining 21 Laboratory reports, because the FBI could not
locate and produce Whitehurst's dictations for comparison purposes.

Our efforts to identify which dictations had been changed without authorization
were hampered by conflicting statements from Higgins and Whitehurst.
Higgins repeatedly told us that he never changed Whitehurst's dictations in
substance without permission from Whitehurst. Higgins explained that he had a
gentlemen's agreement with Whitehurst that permitted him to substantively
alter the dictations after conversing with Whitehurst. On the other hand,
Whitehurst repeatedly told us that he did not authorize the changes made to his
dictations. Whitehurst also denied that he ever had any gentlemen's agreement
with Higgins. Whitehurst told us that if he had agreed to make substantive
changes to his dictations, he would have documented the changes or submitted
those changes to his unit chief for approval. We noted that Whitehurst had
documented his changes on the face of the dictations in some of the cases. In
other instances, Whitehurst observed that his underlying data did not support
the changed dictations and therefore he would not have agreed to alter the
dictations.

In most of these cases, we were not persuaded by Higgins' assertion that he
obtained Whitehurst's permission before making substantive changes to the
dictations. Contrary to this assertion, Higgins acknowledged during our
interviews that he made what we considered to be substantive changes without
permission in some of these Laboratory cases. See Report Nos. 17, 20, 34, and
37. As to the remaining Laboratory cases, Higgins told us that he had no idea
how or why the changes occurred. We recognize that these events occurred
between three to six years earlier, but we find it difficult to accept that Higgins
had no explanation for so many of the changes in Laboratory reports, which, it
must be recalled, were prepared by him. In contrast, Whitehurst could point to
specific reasons why he would not have agreed to change his dictations in
many of these cases. Finally, Higgins' credibility suffered because, when we
showed him changes to dictations that were clearly substantive, Higgins
refused to agree that the changes were significant or even acknowledge that the
changes might pose a problem if those matters ever went to trial.

In view of our findings that Higgins made substantive changes to Whitehurst's
dictations without permission, we think that the Laboratory should take certain
remedial steps. Laboratory management should designate a qualified explosives
examiner to review these reports and consider whether to prepare amended
reports and advise the submitting agencies of the unauthorized changes.
Laboratory management also should make every effort to locate the missing 21

dictations to determine if the corresponding Laboratory reports contain
substantive changes.

Additionally, given Ronay's statements that he authorized non-substantive
changes to Whitehurst's dictations and the omission of Whitehurst's opinions in
some cases, we strongly recommend that the Laboratory review all Explosives
Unit reports in cases in which Whitehurst served as an auxiliary examiner to
determine whether other unauthorized changes occurred. If so, Laboratory
management should consider whether, depending on the seriousness of the
alterations, additional remedial steps should be taken in those cases.

Finally, we think that the manner in which the FBI maintained its official case
files in this matter deserves comment. In reviewing those files, we found their
organization to be somewhat incoherent. It was difficult to determine if all of
the necessary records were present, and the absence of Whitehurst's approved
dictations in 21 of the 69 Laboratory cases we reviewed suggests that records in
a significant number of cases have been lost. Our review convinces us that an
examiner may find it difficult to effectively prepare for trial by reviewing some
of these case files. The official FBI case files should be sufficiently complete so
that a qualified examiner can understand the examinations performed, the
results obtained, and the bases for those results. In Part Six of this Report, we
make recommendations that would go far toward alleviating the case
documentation problems we encountered.

#####

CHART A: LABORATORY CASES IN WHICH HIGGINS WAS PE
AND WHITEHURST WAS AE

SEQUENTIAL
NUMBER

CATEGORY

FILE
NUMBER

DATE OF AE
DICTATION

DATE OF
FINAL
REPORT

1

N/A

N/A

N/A

N/A

2

II

174-10755

11/13/90

01/10/91

Not Produced
by FBI

01/11/91

01/30/91

03/29/91

01/30/91

03/29/91

01/30/91

03/29/91

00924055

3

Not Categorized

95-292633
00328032

4

II

95-295034
00914025

5

II

95-295047
00914024

6

I

95-295054
00914023

7

I

95-295567

06/10/91

07/24/91

10/07/91

12/20/91

11/19/91

01/10/92

10/07/91

10/18/91

01/27/92

02/24/92

12/19/91

02/24/92

05/11/92

07/09/92

01012007

8

I

95-297958
10307012

9

I

95-298548
10523013

10

I

95-299639
10801044

11

I

95A-HQ1002839
11108031

12

I

95-300291
10912028

13

III

95A-HQ-

1005646
11118014

14

Not Categorized

174-10810

Not Produced
by FBI

11/14/91

05/31/91

06/07/91

08/19/91

09/18/91

10/23/91

10/03/91

183A-HQ1028989

10/06/92,
11/05/92

10/15/92

20817014

06/26/92

10322011

15

II

174-10759
01102042

16

III

262-105
10212024

17

III

262-135
10924017

18

II

11/20/92

19

I

26B-NY-221224
21005042

10/21/92

11/30/93

20

III

95A-HQ1020050

01/21/93

03/02/93

11/12/92

01/27/93

02/16/93

04/15/93

Not Produced
by FBI

11/17/93

05/13/93

05/21/93

Not Produced
by FBI

10/29/93

20324023

21

I

95A-HQ1021257
20327066

22

III

95A-HQ1045388
30208029

23

Not Categorized

95A-HQ1046139
30219059/
30219060

24

I

95A-HQ1046136
30219058

25

Not Categorized

95A-HQ1046145
30219061

26

I

95A-HQ1046148

10/19/93

10/29/93

11/04/93

12/03/93

11/18/93

12/03/93

04/26/94

05/09/94

01/07/93

01/12/93

03/21/94

03/28/94

09/13/93

12/03/93

30219062

27

I

95A-HQ1046339
30222063

28

I

95A-HQ1055157
30722016

29

II

95D-HQ1063101
31227006

30

III

163A-HQ1039342
21030019

31

III

174A-LV-24022
31104037

32

I

72-NY-224960
20604037

(20624037 on
AE Dictation)

33

I

80-899

11/23/92

12/22/92

09/20/91

05/29/92

01/05/93

01/15/93

02/19/93

05/21/93

08/18/92

10/22/92

Not Produced
by FBI

11/15/93

12/15/93

12/17/93

21112035

34

III

95-300132
10909047

35

III

95A-HQ1023121
20402053

36

III

160C-SC-18029
20414026

37

III

95A-HQ1032088
20615061

38

Not Categorized

199M-MH-171
30607095

39

Not Categorized

262-MM-64973
30803005

40

I

281A-NH-24953

11/09/93

03/29/94

Not Produced
by FBI

06/06/91

03/04/91

04/17/91,
10/03/91 (#17
FR)

01/27/92

02/24/92

05/23/91

05/24/91

08/19/91

09/16/91

01/13/92

04/10/92

30809034

41

Not Categorized

262-HN-9164
10212023

42

III

262-135
10212009

43

II

62D-PG-54909
11104064

44

I

95-296542
10110017

45

II

95-296601
10115006

46

III

95-300689

11021069

47

III

262-HN-9126

03/04/91

05/31/91

Not Produced
by FBI

11/27/92

(262-128)
10212008

48

Not Categorized

12D-SE-64286
(80-899)
20709003
(20709008 on
AE Dictation)

49

N/A

N/A

N/A

N/A

50

I

262-135

12/07/92

09/23/92

20211016

51

N/A

N/A

N/A

N/A

52

Not Categorized

89E-MO-35734

Not Produced
by FBI

11/07/91

(89-7918)
11015061

53

I

281A-DE-58586

09/15/92

10/23/92

09/17/92

01/15/93

02/26/93

04/05/93

09/15/92

09/21/92

10/26/92

11/27/92

10/27/92

11/27/92

11/15/93

11/18/93

12/07/92

01/12/93

20513027

54

I

12F-NF-28167
20529010

55

I

95A-HQ1046131
30219057

56

I

80-899
10913057

57

I

80-899
20820035

58

I

80-899
21020043

59

I

80-899
30507002

60

I

2-MM-61261
21029005
21029035

61

Not Categorized

174A-BH-39654

Not Produced
by FBI

05/18/92

Not Produced
by FBI

01/28/93

Not Produced
by FBI

11/27/92

Not Produced
by FBI

11/27/92

Not Produced
by FBI

09/21/92

Not Produced
by FBI

01/15/93

11113016

62

Not Categorized

95A-HQ1037936
21008060

63

Not Categorized

80-899
10913054

64

Not Categorized

80-899
10913055

65

Not Categorized

80-899
10913056

66

Not Categorized

80-899
20709002

67

Not Categorized

80-899

Not Produced
by FBI

10/14/92

Not Produced
by FBI

11/27/92

Not Produced
by FBI

11/27/92

Not Produced
by FBI

11/27/92

Not Produced
by FBI

11/27/92

Not Produced
by FBI

11/27/92

20709004

68

Not Categorized

80-899
20820034

69

Not Categorized

80-899
20820036

70

Not Categorized

80-899
20820037

71

Not Categorized

80-899
21020042

72

Not Categorized

80-899
21112036

#####

SECTION H12: TOBIN ALLEGATIONS

I. Introduction

This section discusses certain issues that William Tobin, a metallurgist now
working in the Materials Analysis Unit (MAU), has brought to the attention of
the OIG. Tobin has identified cases in which he believes other examiners,
primarily in the Explosives Unit (EU), have incorrectly conducted or reported
metals-related examinations. He also contends that SA Michael Malone, a
former examiner in the Hairs and Fibers Unit (HFU), testified inaccurately and
outside his expertise in a 1985 hearing related to the impeachment of United
States District Judge Alcee Hastings.

To investigate these matters, we interviewed Tobin and several others,
including: Dennis Aiken, Roger Avery, Alan Baron, John Doar, Michael Ennis,
Christopher Fiedler, Bruce Hall, Michael Hahn, Congressman Alcee Hastings,
John Hicks, Michael Malone, AUSA Frederick Martin, Thomas Mohnal,
Kenneth Nimmich, Robert Sibert, Alan Robillard, J. Thomas Thurman, and
Chief Judge Gerald Tjoflat of the United States Court of Appeals for the
Eleventh Circuit. We also reviewed pertinent documents from the Alcee
Hastings case and other cases.

Based on our investigation, we conclude that the Laboratory would benefit
from a clear delineation of responsibilities between units with respect to
metals-related examinations, better communication among examiners in this
area, and recognition that differences among examiners should be resolved on a
scientific basis. We also conclude that the EU should take steps to assure that
its examiners properly conduct and report their examinations of wires or other
metals-related evidence.

In the Alcee Hastings case, we find that Michael Malone falsely testified that
he had himself performed a tensile test on a purse strap and also testified
inaccurately and outside his expertise concerning the test results. The
misstatements concerning the test results, Tobin acknowledged, did not affect
the conclusion that the strap had been partially cut. After Tobin raised concerns
about Malone's testimony in 1989, then-SAS Chief Kenneth Nimmich failed to
assure that the serious allegations of examiner misconduct were appropriately
investigated and addressed.

II. The Reporting of Metals-Related Examinations

Tobin identified one general area and two specific cases in which he thought
metals-related examinations had been incorrectly performed or reported: (1) in
reports prepared by EU examiners regarding the gauge of wire; (2) in a report
in the La Familia case indicating that holes had been drilled into metal pipes;
and (3) a suggestion in the Mauchlin case that a handgun barrel was made from
Swedish steel. We address each of these matters in turn.

A. Improper Wire Gauging

Tobin contends that EU examiners have themselves conducted certain
examinations that would be better performed by qualified metallurgists and in
some instances the EU examiners have reported their examinations incorrectly.
He specifically identified the measurement of wire gauge as an example. To
illustrate his point, Tobin noted that in an August 1995 report issued by EU
examiner Thomas Mohnal in the UNABOM case, the following dictation
appears:

Present within the submitted specimens are the following lengths
of wire: White insulated, single conductor, multi-strand copper
wire containing 26 strands of 30 - gauge (AWG) copper wire.

In Tobin's view, this report incorrectly states the gauge of the wire because it
describes the gauge of individual strands of a multi-strand wire. Tobin observed
that, consistent with industry standards, a multi-strand wire should be gauged
based on the total cross-sectional area of its separate strands. Because the report
did not describe the wire in this way, Tobin voiced concern that field agents or
other readers might misinterpret the report as indicating that 30-gauge wire was
found in the examined specimens.

After the August 1995 report was issued, Tobin met with EU Chief J. Thomas
Thurman and acting MAU Chief Christopher Fiedler to discuss Tobin's
concerns about how the EU was measuring and reporting the gauge of wire.
During the meeting, Thurman agreed that Tobin would instruct EU examiners
how properly to gauge wire and to conduct certain other metals-related
examinations. In September 1996, however, the EU still had not obtained this
training. Tobin advised the OIG that Thurman had not yet asked Tobin to
provide it. Thurman told the OIG that he had told Tobin he would set up the
training whenever Tobin wanted to do it; Thurman further said he was not
concerned that the EU was perhaps misgauging wire.

With respect to the wire gauging issue, we draw several conclusions. The
measurement of wire gauge is, in our view, something that appropriatelytrained EU examiners can perform themselves without involving a metallurgist.
Thurman as the EU chief should have taken more seriously Tobin's concern
that EU examiners were not measuring or reporting the wire gauge in accord
with industry standards. Where a multi-strand wire is involved, its gauge
should be measured and reported based on the total cross-sectional area of its
strands. Of course, following the industry standard for describing the wire
would not preclude an examiner, as in the quoted report from the UNABOM
case, from also supplying additional information describing the size and other
characteristics of individual strands.

B. The La Familia Case

In the La Familia case, Tobin, who worked on the case, thought that the EU and
the Firearms and Toolmarks Unit (FTU) in 1996 reported the results of metalsrelated examinations in a misleading or incorrect manner. After he reviewed a
report containing certain statements with which he disagreed, Tobin prepared
dictation describing his own opinions without first talking to explosives
examiner Thomas Mohnal, who was the principal examiner (PE). Tobin's
action led to further controversy because Mohnal and EU Chief Thurman
accused Tobin of improperly attempting to discredit the EU and FTU. We
conclude that the Laboratory personnel, including Tobin, should have
communicated better among themselves and focused on the pertinent scientific
knowledge in attempting to resolve any differences.

The Laboratory was asked in this case to determine if certain evidence met the
definition of an explosive device or was used in the construction of pipe bombs.
The submitted evidence included a pipe nipple with two end caps, collectively
identified as Q1; another pipe nipple with an end cap and an end plug,
collectively identified as K1; and a drill and drill bit. Each of the pipe nipples
had a hole in the center of the pipe shaft.

As the PE, Thomas Mohnal sent the evidence to Tobin to determine if there
were metal filings on the drill bit that matched the pipe. Mohnal also sent the
evidence to the FTU to determine if the holes had been drilled with the bit. On
February 9, 1996, Mohnal issued a partial report. Because Tobin had not
completed his dictation, this report stated that [t]he Metallurgy examinations
are continuing and you will be advised of the results of these examinations
upon their completion.

In the February 9 report under the heading Pipe Nipple/End Caps, Mohnal
described specimens Q1 and K1. The report stated that Q1 was a 6-inch length
of black-coated steel pipe having a nominal pipe size diameter of 3/4 inch.
Mohnal noted that a hole measuring approximately 0.118 inches in diameter
had been drilled in approximately the center of the pipe nipple. He also noted
that the pipe nipple had the word MEXICO stamped in manufacturer's lettering,
that two nominal size 3/4 inch steel end caps were present, and that one of the
caps was stamped on the top with the words 3.4 Q CHINA in manufacturer's
lettering. Describing specimen K1, the report noted that the diameter of the

pipe was the same as Q1, that the stamped lettering on the pipe also bore the
word MEXICO, and that the end cap from K1 was found to be the same
nominal size as the end caps from Q1 and had the lettering 3.4 Q CHINA.

In a separate section, the February 9 report also described the results of
toolmark examinations performed in the FTU:

The threaded pipes represented in specimens Q1 and K1 bear
toolmarks (holes) typical of those produced by a drilling-type
action. Although these holes are approximately the same size in
diameter as the K4 drill bit, they bear no microscopic
characteristics of value for comparison purposes. Therefore, no
associations based on toolmarks, could be made between the K4
drill bit and the Q1 and K1 threaded pipes.

Shortly after the February 9 report was issued, Tobin sent Mohnal dictation
reporting that no material consistent with specimens Q1 and K1 was found on
the K4 drill and drill bit. Tobin says he only subsequently saw the February 9
report, and he then read Mohnal's description of the pipes but not the section
describing the results of the toolmark examinations. Tobin concluded that the
report incorrectly suggested that the pipes in specimens Q1 and K1 were
identical and also incorrectly used the term nominal pipe size in describing the
evidence, because nominal pipe size indicates that the pipe wall meets certain
American Iron and Steel Institute (AISI) standards. Tobin also was concerned
by the statement that holes had been drilled in the pipe nipples, because he had
not found characteristics indicating the holes were drilled.

Without first discussing his concerns with Mohnal, Tobin recalled his earlier
dictation and prepared new dictation dated February 13, 1996. That dictation
stated:

Metallurgical examinations and comparisons of the Q1 and K1
pipe nipples revealed similarities as to the country of origin
stampings . . . material class, and ostensible size (3/4 inch).
However, the Q1 nipple is 3/4 inch AISI NPS (American Iron and
Steel Institute, Nominal Pipe Size), but the K1 nipple would fail
to comply with the AISI 3.4 inch NPS standard. . . .

Differences as to hardness and fabrication techniques, in addition
to the slight but significant size difference, between the nipples of
specimens Q1 and K1 were detected pursuant to the metallurgical
examinations. The nipples, although apparently manufactured in
Mexico, were concluded to have been formed by different
fabrication operations. . . .

No material consistent with specimens Q1 and K1 was detected
adhering to the K4 drill or drill bit. Although the approximate
centers of the Q1 and K1 nipples do not exhibit characteristics of
being drilled, the K4 drill bit (7/64 ) is of the proper size to have
been used for pilot holes.

When he received Tobin's February 13, 1996, dictation, Mohnal said he was
immediately angered by the fact that Tobin had issued the findings without
consulting him. Mohnal said that he thought that Tobin was deliberately
attempting to embarrass the EU and FTU and to hurt the case. In Mohnal's
view, Tobin had been asked to answer a very limited question and he had done
so by his dictation stating that no material consistent with specimens Q1 and
K1 was detected adhering to the K4 drill and drill bit. Mohnal also stated that
his February 9, 1996, report was not intended to compare the K1 and Q1
specimens to determine if they were identical, as that was not a pertinent issue,
and the language in the Pipe nipple/end cap section was meant to be merely
descriptive.

After Mohnal's unit chief, J. Thomas Thurman, learned that Tobin had prepared
the revised dictation, Thurman also concluded that Tobin had improperly

commented on matters he had not been asked to address. Thurman told the OIG
that he did not take issue with Tobin raising issues, but Thurman thought it was
improper for Tobin to issue the revised dictation without even talking to the
other examiners involved.

Sometime after February 13, 1996, Tobin met with his acting unit chief,
Christopher Fiedler, and Thurman to further discuss the dictation. As a result of
this meeting, Tobin issued yet another revised dictation with additional
language stating that the metallurgical differences would not likely be detected
by other than a metallurgist or other individual knowledgeable of pipe
fabrication techniques, and they do not alter the efficacy of the apparent
intended product. Tobin told the OIG he agreed to this language to appease the
EU. Thurman said that while he still thought Tobin should not have issued his
February 13 dictation and it should have been withdrawn, Thurman agreed to
the compromise dictation because Mohnal said he could live with it.

After preparing his February 13 dictation, Tobin realized that it also conflicted
with the toolmark conclusions described in the February 9, 1996, report. Those
conclusions, which were based on the work of examiner Michael Ennis, stated
that the pipes in Q1 and K1 bear toolmarks (holes) typical of those produced by
a drilling-type action. Tobin approached Ennis to attempt to reach agreement
on further revised language.

Tobin met with Ennis and then prepared a dictation dated February 27, 1996,
which stated:

The holes in the approximate centers of Q1 and K1 do not exhibit
characteristics indicative of drilling as a final metallurgical
operation and they are similar as to technique of formation and
apparent RMS (root mean square) profile. The K4 drill bit (7/64 )
is of the proper size to have been used for drilling pilot holes in
both nipples. No material consistent with the Q1 and K1 nipples
was detected adhering to the bit.

Although Tobin and Ennis agreed on Tobin's revised dictation, they evidently
misunderstood each other as to its implications for the conclusions Ennis earlier
had reached. Ennis told the OIG that he understood that Tobin had examined
only the top of the holes in the pipes, while Ennis had examined the inside of
the holes and observed characteristics such as spiraling that he thought were
indicative of drilling. Ennis said this allowed him to reconcile his earlier
dictation with Tobin's February 27 dictation. Tobin told us his February 27
dictation on its face contradicted the dictation Ennis had prepared and that he
did not think that spiraling was significant with regard to whether the holes had
been drilled. Tobin told the OIG that he had probably not told Ennis these
things because Tobin did not want to embarrass him.

After Tobin and Ennis met, there was a separate meeting among EU Chief
Thurman, FTU Chief Sibert, and Bruce Hall, who by then was serving as the
MAU chief. Hall concluded from this meeting that Tobin should have
discussed his concerns with the FTU and the EU examiners before issuing his
February 13, 1996, dictation. Hall also thought that Tobin had acted out of
frustration after concluding that Mohnal and Ennis had incorrectly performed
examinations that should have been done by a metallurgist. Hall observed that
the problem reflected a lack of communication that could have been avoided if
the units had collaborated. In addition, Hall recalled suggesting that a
metallurgist provide training to EU examiners to try to improve
communication, but this idea apparently was not implemented.

The La Familia investigation resulted in the trial of defendant Charles Nunez in
federal court in Springfield, Massachusetts in July 1996. Nunez was convicted
on charges related to the unlawful possession of pipe bombs. Thomas Mohnal
testified at the trial that a particular device was a pipe bomb, and Steven
Burmeister testified about the Laboratory's identification of certain powder.
Neither Ennis nor Tobin testified at the trial.

We have several conclusions concerning the La Familia case. When Tobin saw
what he thought were incorrect or misleading statements in the February 9,
1996, report, he was correct to raise the issue. He should, however, have talked

with Mohnal before issuing his own February 13 dictation. As a general matter,
we think that examiners should first discuss issues informally among
themselves if there appears to be a difference of opinion in interpreting data or
reporting conclusions. Had Tobin attempted such informal communication
here, it might have avoided both much of the controversy and the need for
Tobin to further revise his dictation. We find unpersuasive Tobin's explanation
that he prepared his dictation as he did because he knew from past experience
that Mohnal would ignore his concerns.

We also find that Tobin and Ennis did not take appropriate steps to resolve their
differences concerning whether the evidence indicated that holes had been
drilled in the pipe nipples. Although Tobin and Ennis agreed to a further
revision of Tobin's dictation, Tobin did not think the evidence showed
characteristics of drilling. Ennis in contrast thought he and Tobin had agreed
their conclusions could be reconciled. That Ennis and Tobin talked about their
differences was laudable. They should, however, have addressed more directly
the bases for and the possible inconsistencies in their respective conclusions. If
they were unable themselves to reach agreement based on the data and analyses
performed, they should have involved their unit chiefs further.

Both Thurman and Mohnal seemed to be concerned more about Tobin's
motives or manner in issuing the February 13 dictation than about the merits of
the points he raised. As a unit chief, Thurman should have assured that any
differences of opinion among the examiners were resolved on a scientific basis.
Rather than do so, Thurman appeared to be chiefly concerned with defending
the report issued by EU examiner Mohnal and attempting to persuade others
that Tobin's February 13 dictation should be withdrawn.

More generally, we think the La Familia case and the issue concerning the
measurement of wire gauge show that the Laboratory would benefit from a
clear delineation of the respective responsibilities of its metallurgists and other
examiners in conducting metals-related examinations. Based on our interview
of SAS Chief Randall Murch, we understand that the Laboratory will attempt to
develop guidelines in this area. We also understand that the Laboratory intends
to establish a Science Resolution Board which will serve as a forum for the
airing of disagreements over scientific issues. Such a board could serve a useful

purpose, but we would hope that issues like those presented in the La Familia
case could generally be resolved by direct, informal discussions among the
examiners involved.

C. The Peter Mauchlin Case

Tobin has expressed concerns that in this case, in which he conducted
metallurgical examinations, the prosecutor and the case agent were incorrectly
told that a gun barrel was made from Swedish steel. Although the case agent
recalls hearing something about high quality Swedish or stainless steel, we did
not identify anyone in the Laboratory who reported incorrect information in
this regard.

According to Tobin, he met with AUSA Frederick Martin before the trial to
discuss Tobin's anticipated testimony. Tobin recalls that Martin asked him
several questions about the nature and origin of metal in a particular gun barrel.
Tobin responded that he did not know. When Martin asked why he did not
know the answers, Tobin recalls explaining that he had not been asked to
examine the gun barrel. Tobin says that Martin then asked what indicated that
the gun barrel was made from Swedish steel and said that they had been
looking all over for Swedish steel.

Subsequently, Tobin concluded that a remark he had made to EU examiner
Thomas Mohnal may have been incorrectly communicated to the case agent.
Tobin recalled that before the trial, Mohnal had approached him waving some
evidence and said what is this stuff? I don't want a complete exam. Look, I just
want your opinion what it is. Tobin said he told Mohnal that he would first
need to hold the evidence. According to Tobin, Mohnal replied, Well, look, I
just want to know what to put in my notes just for an inventory kind of thing.
Tobin stated that Mohnal continued to push him for an answer and Tobin
responded, Tom, for all I know, it's high quality Swedish steel. I don't know.
Tobin speculated that as result of this comment, the case agent was mistakenly
told the barrel was Swedish steel.

AUSA Martin did not recall a conversation about Swedish steel in his pretrial
interview with Tobin. Martin said that the case agent, Michael Hahn, was
present at the interview and mentioned that the metal used was high-quality,
but Martin did not recall Hahn saying it was Swedish. Hahn told the OIG that
he recalled something about high quality Swedish or stainless steel, although
Hahn could not remember how he received this information.

J. Thomas Thurman was the PE on this case. Thurman told the OIG that the
submitting agency had not asked for an analysis of the gun barrel and he did
not otherwise see any need for Tobin to analyze it. Both Thurman and Mohnal
denied ever telling anyone that the gun barrel was Swedish steel. We could not
identify the source of the information regarding Swedish steel that case agent
Michael Hahn seems to recall.

III. Alcee Hastings Matter

Tobin alleges that, in 1985, former Hairs and Fibers Unit (HFU) examiner
Michael Malone testified falsely and outside his expertise before a judicial
committee that was investigating misconduct by Alcee Hastings, who then was
a United States District Judge for the Southern District of Florida. As set forth
below, we conclude that Malone falsely testified that he had himself performed
a tensile test on a purse strap and he also testified outside his expertise and
inaccurately concerning the test results. These misstatements, Tobin
acknowledged, did not affect the conclusion that the strap had been partially
cut. We also find that after Tobin raised concerns about Malone's testimony in
1989, then-SAS Chief Kenneth Nimmich failed to assure that the serious
allegations of examiner misconduct were appropriately investigated and
addressed.

In 1989, Hastings was impeached and removed from his judicial office based
on his involvement in a bribery scheme and related misconduct. Our
investigation focused on Tobin's allegations concerning Malone's testimony;

we did not otherwise review or evaluate actions by the FBI or others related to
the impeachment of Hastings.

A. The Background to the Investigating Committee Proceedings

To place Malone's 1985 testimony into context, it is necessary to briefly
summarize the events leading to the charges that Hastings had been involved in
a bribery scheme. As a federal judge, Hastings had presided over the trial of
Frank Romano and Thomas Romano, who were convicted in Miami in
December 1980 on twenty-one counts of racketeering. In May 1981, Hastings
ordered the forfeiture of $1.2 million of the Romanos' property; in July 1981,
he sentenced each of the Romanos to a three-year prison term. In late July
1981, a person named William Dredge told federal prosecutors in Miami that
he had been directed by William Borders, a Washington, D.C. attorney and
long-time friend of Hastings, to solicit a $150,000 bribe from the Romanos in
exchange for their sentences being reduced to probation. Dredge was a former
client of Borders, had a criminal record, and was then facing federal criminal
charges himself.

After corroborating certain statements made by Dredge, the Government
decided to enlist his cooperation. On September 12, 1981, Dredge introduced
Borders to a retired FBI agent named Paul Rico who was posing as Frank
Romano. Borders told Rico that in exchange for $150,000 an order would be
signed returning a substantial amount of the property and the Romanos would
receive mitigated jail sentences. To demonstrate his influence with Hastings,
Borders also told Rico that the judge would appear at a time and place selected
by Borders and Rico. They agreed that Hastings would appear at the dining
room of the Fontainebleau Hotel in Miami at 8:00 p.m. on September 16, 1981.
Borders and Rico also agreed to meet again on September 19, 1981, for an up
front payment on the bribery deal. On the evening of September 12 and the
morning of September 13, 1981, Borders and Hastings were together in
Washington, D.C.

Shortly before 8:00 p.m. on September 16, 1981, Hastings and a female
companion entered the dining room of the Fontainebleau Hotel, where they ate
dinner. On September 19, 1981, Rico paid Borders $25,000 as up front money.
On October 2, 1981, Rico contacted Borders asking about the status of the
forfeiture order. In a telephone conversation on October 5, 1981, Borders told
Rico the matter had been taken care of and that the order would be mailed out
that day or the next. Less than one hour later, Hastings telephoned Borders.
During their brief conversation, Hastings said, I've drafted those, ah, ah, letters
for Hemp. . . . Borders later said, I talked to him and he wrote some things
down for me. Hastings said he understood, and Borders stated, And then I was
supposed to go back and get some more things. Hastings told Borders, I'll send
the stuff off to Columbia in the morning. The next day, Hastings issued an
order reversing in part his original $1.2 million forfeiture order and returning
over $845,000 in property to the Romanos.

On October 7, Borders told Rico that the order had been issued the previous
day. Rico agreed to meet Borders in Washington on October 9 for the final
payoff. That same evening, a testimonial dinner was to be held in Washington
to honor Borders, a past president of the National Bar Association. On
Thursday, October 8, Hastings called Borders and told him he would arrive in
Washington the next morning. On the morning of October 9, Borders picked
Hastings up at the airport and took him to a hotel, where they had adjacent
rooms; shortly thereafter Hastings went with Borders to the latter's law office.
While at his office, Borders returned a call from Rico; Rico told Borders he had
brought all the necessary papers and they agreed to meet at once at Rico's hotel.
Borders went by himself to Rico's hotel. Hastings left Borders' office, made a
few stops, and then returned to his own hotel.

Borders met Rico at his hotel and told him to get it because he wanted to take a
ride. Rico got into Borders' car and placed a bag containing $125,000 between
them. FBI agents stopped and arrested Borders when he started to drive out of
the hotel parking lot. That afternoon, Hastings learned that the FBI wanted to
interview him and that Borders had been arrested. Rather than contacting the
FBI in Washington, Hastings made an unplanned and hurried departure for
Miami, where he was interviewed by FBI agents later that evening. Hastings
denied any involvement with Borders in a bribery scheme.

On December 19, 1981, Hastings and Borders were indicted on federal charges
of conspiracy and obstruction of justice. Borders was also charged with two
counts of interstate travel with the intent to commit bribery. The proceedings
against Borders were transferred to the Northern District of Georgia, where a
jury convicted him on all counts in March 1982. The Court of Appeals for the
Eleventh Circuit affirmed the conviction in December 1982. Hastings was tried
in Miami in January 1983. He testified that he did not participate in the bribery
scheme and had been taken advantage of by Borders. On February 4, 1983, the
jury acquitted Hastings.
In March 1983, two district court judges filed a complaint with the Judicial
Council of the Eleventh Circuit against Hastings based on his involvement in
the bribery related to the Romano case and certain other conduct. To
investigate the complaint, on March 29, 1983, Chief Judge John Godbold of the
Eleventh Circuit appointed a committee consisting of himself, Circuit Judges
Frank Johnson and Gerald Tjoflat, and District Judges Sam Pointer, Jr. and
William O'Kelley (the Investigating Committee ). The chief counsel for the
Investigating Committee was John Doar, an attorney then in private practice
who had formerly served both as Special Counsel for the Committee of the
Judiciary of the House of Representatives in its investigation regarding the
impeachment of former president Richard Nixon and as an Assistant Attorney
General for the Civil Rights Division of the Department of Justice.

Hastings objected to the Investigating Committee's jurisdiction and did not
thereafter participate in the proceedings either directly or through his counsel.
Over the course of three years, the Investigating Committee conducted an
extensive investigation that included not only a review of the records of the
proceedings in the Romano, Borders, and Hastings cases, but also consideration
of numerous documents and witness testimony, including evidence that had not
been introduced at Hastings' trial of various contacts between Borders and
Hastings between February 1981 and September 1981. Between May 1985 and
July 1986, the Investigating Committee took sworn testimony on seven
different occasions. The Committee heard testimony from more than 110
witnesses and received approximately 2800 exhibits.

In a report completed in August 1986, the Investigating Committee stated that
there was clear and convincing evidence that Hastings had sought to conceal
his participation in the bribery scheme with Borders and to explain away

evidence connecting him to the scheme and that he had pursued these
objectives by presenting fabricated documents and false testimony in his
criminal trial. The Investigating Committee unanimously recommended that the
Judicial Council determine that Hastings had engaged in conduct that might
constitute one or more grounds for impeachment by: (1) conspiring with
Borders to receive a bribe for an official judicial act and, (2) giving false
testimony and obstructing justice in connection with his criminal trial in an
effort to conceal the conspiracy.

B. Malone's Testimony before the Investigating Committee

In his criminal trial, Hastings had offered a leather purse with a broken strap as
an exhibit. Hastings testified that the reason he had accompanied Borders to his
law office on October 9, 1981, was to locate a luggage shop to have the purse
repaired. As part of the investigation by the Investigating Committee, the purse
was submitted to the FBI Laboratory in 1985 for examination, including an
analysis of the nature of the break in the strap.

Within the Laboratory, the case was assigned to SA Michael Malone, an
examiner who had worked in the HFU since 1974. Malone remained in the
HFU until 1994, when he transferred out of the Laboratory as part of a general
reassignment of FBI agents from FBI Headquarters to the field offices.

Malone examined the purse visually and found two things that he thought
suggested the strap had been deliberately broken. An eyelet on one end of the
purse was recognizably distorted, while an eyelet on the other end was not.
Malone posited that if the purse had been accidentally snagged on something,
then both eyelets would have been equally distorted. Malone also found that the
break in the strap did not appear to be accidental. If the break had been
accidental, Malone thought the strap would have been torn completely across
its width with a jagged-edge tear. Malone found, however, that the strap had
been cut across three quarters of its width, leaving a straight edge, and the
remainder of the strap had been torn, leaving a jagged edge. Malone also

attempted manually to break the strap in an undamaged area but could not do
so.

According to Malone, when he found he could not manually break the strap, he
took it to Tobin so it could be examined with a tensile tester, a device that
measures the tensile force necessary to break an object. Sometime between
September 26 and 30, 1981, Tobin ran the tensile test and the strap broke at
29.5 pounds of force. Malone told the OIG that he did not know what this
number meant and that he did not ask Tobin to explain it because he assumed
they both would be called to testify at any hearing. Malone issued a report
dated September 30, 1985. Tobin issued handwritten AE dictation dated
October 2, 1985, which stated:

Examinations of the buckle holes in the strap of Q1 purse revealed
that a relatively large amount of force(s) had been applied to one
end of the strap and a relatively small amount of force(s) had been
applied to the opposite end of the strap. This non-uniform
distribution of forces is not consistent with snagging or other
accidental force application. Each of the two remaining portions
of broken strap was subjected to tensile loading ( pulling ) to
failure. The strap sections failed at 29.5 lbs. and 29.0 lbs.

Malone's September 30, 1985, report includes language nearly identical to the
first two sentences in Tobin's October 2, 1985, dictation. The September 30,
1985, report does not, however, refer to the strap sections failing at 29.5 pounds
and 29.0 pounds or otherwise refer to the tensile test. From our investigation,
we could not determine why Malone did not refer to these matters in his
September 30, 1985, report.

On October 2, 1985, Malone testified before the Investigating Committee.
Malone told the OIG that he met with Doar to discuss his testimony that same
day. Malone maintains that he then told Doar that he did not conduct the tensile
test, but that Tobin had done so. Malone told the OIG that Doar said, Damn, I
forgot to subpoena Tobin. Malone says Doar asked him if he could read Tobin's

results into the record and Malone agreed to do so. Malone thinks he may have
then had Tobin's handwritten October 2, 1985, dictation, and says that Doar
must have had something in writing regarding the tensile test because Doar
knew about the 29.5 pound figure. Malone says Doar also told him that the
judges would probably have questions about the test and asked if Malone could
handle the questions. Malone says he told Doar he was not an expert in the
force test but that he would try to answer the questions.

Doar disputes Malone's recollection about the discussions before the testimony.
Handwritten notes that Doar prepared on October 1, 1985, show that he met
with Malone the day before Malone testified. Among other things, these notes
also indicate that Malone then told Doar that the strap broke at 29.9 pounds of
tensile strength. The notes do not refer to Tobin. Doar insists that Malone did
not tell him that Tobin performed the tensile test or even worked on the case,
and Doar says he did not receive anything in writing from the FBI related to the
tensile test before Malone testified on October 2, 1985. Doar denies ever telling
Malone that he forgot to subpoena Tobin. On this point, Doar notes that he did
not subpoena FBI witnesses for the proceedings, but instead requested their
appearance by letter. Moreover, the Investigating Committee did not strictly
observe the rules of evidence, and Doar told the OIG that if he had known that
Tobin had conducted the tests, Doar would have had Malone read the relevant
report into the record. Doar also says he would not have presented certain
testimony by Malone if the latter had told him Tobin had done the test.

At the hearing before the Investigating Committee, Malone testified about the
examination of the purse and the tensile test results. Malone testified that he
microscopically examined the original separation in the purse strap. He told the
Committee:

After examining the separation, I concluded that most of the
separation wasn't a tear at all, it was a cut, and this was very, very
apparent.

With regard to the tensile test, Malone stated:

[W]e kind of had to jury rig it to get it to hold it, in other words, to
make some adaptions. But after a while of kind of fiddling around
with it, we were able to make the machine hold it in such a way
that we could do the test.

Malone then described the results of the test:

When we broke the strap, we recorded the amount of force to
break the strap. It was 29.9 pounds of pulling force. It was the
exact same reading for both straps.

Doar then asked Malone, And did you actually, yourself, conduct this test?
Malone answered, Yes, I did. Malone's testimony that the strap broke at 29.9
pounds used the same figure that appears in Doar's notes from his meeting with
Malone the previous day. The dictation prepared by Tobin, however, referred to
29.5 and 29.0 pounds. Before the Committee, Malone generally talked about
the strap breaking at 29.9 pounds.

The judges on the Investigating Committee questioned Malone further about
the meaning of the 29.9 pound figure. Malone responded, Well, it means,
number one, it's a lot more than an average person could exert. . . .

Judge Tjoflat asked, If you are going to take the strap and hang it from
something, that means you would put 29.9 pounds on the bottom and the
gravity would cause it to break? Is that what you mean?
Malone responded:

I think it's a little more than that. You are getting out of my area
of expertise now as far as exactly what that figure means. I am a
person who does microscopic examinations, and I had to use the
machine in order to break it, and I recorded this figure. The first
thing I did from my own practical thing was try and break it
myself. I couldn't even --

Judge Godbold then stated, I understand your testimony that you couldn't break
it, yourself. What I am trying to figure out is what 29.9 tells us apart from your
inability to break it manually.

Malone answered, Other than saying how many pounds it took to break the
strap, it's a meaningless figure.

Judge Godbold later returned to the issue by asking, Now, as to whether the
machine at 29.5 is pulling harder than you were able to pull manually, I take it
you can't answer that. Malone responded, That's correct. The judge then asked,
[D]o you have an opinion as to whether the machine was pulling with greater
force than you were able to pull manually, bearing in mind that the machine
broke two pieces of the strap and that you could not break the strap. Malone
answered, Yes. In my opinion, it was pulling much harder than myself.

After Malone testified before the Investigating Committee, Doar on October 5,
1985, wrote to the FBI liaison officer on the case, Dennis Aiken, asking the
FBI to conduct further investigation to determine the static force required to
break the strap on the purse. Doar's letter stated, We understand that the strap
was inserted in a device which exerts pressure on two sides of the strap and that
the machine measured 29.5 pounds when the strap parted. Please relate this
number so that its significance can be appreciated. Doar also requested
photographs of the two ends of the strap where the initial separation occurred.

As a result of Doar's request, Tobin prepared a report dated November 7, 1985,
which further explained the 29.5 pound figure. The report stated that [i]t was
concluded that a force of approximately 7 pounds had been exerted to break the
strap after it had been partially cut. The report also stated that 29 2 pounds is
not difficult for an individual of average' build to achieve by pulling'; a force of
7 pounds is very easily exerted. In fact, a force up to the actual weight of an
individual can readily be exerted. When Tobin prepared this report, he did not
know what Malone's testimony had been concerning the pulling force needed to
break the strap.

On November 20, 1985, Doar received a copy of the November 7, 1985, report.
This report does not state that Tobin conducted the tensile test or prepared the
report, although the initials RU appear on the report and these initials were the
Laboratory's code for Tobin. Doar says that he did not know Tobin had done
the tensile test until he was interviewed by the OIG during our investigation.
Neither Malone's September 30, 1985, report nor Tobin's November 7, 1985,
report was offered as an exhibit in the proceedings before the Investigating
Committee. The Committee did receive the purse, the strap, and certain
photographs related to the examination of the purse as exhibits.

Malone testified again before the Investigating Committee on April 8, 1986. He
then told the Committee that the purse strap had been subjected to a slow,
steady pulling force on the tensile tester and had broken when it reached
approximately 29.5 pounds of pulling force. Malone also testified that when the
purse was first received in the Laboratory, he had microscopically examined
the two broken ends of the strap and concluded that they had previously been
joined together in one piece. Consistent with his earlier testimony, Malone
again testified that the strap had been both partially cut in two and torn.

The Investigating Committee described its investigation and conclusions in a
1986 report to the Judicial Council for the Eleventh Circuit. The report is in
three volumes: the first two describe the investigation and summarize the
evidence received by the Committee, while the third presents the Committee's
analysis of the evidence and findings.

With regard to Malone, the report states in volume 2:

Agent Malone testified that his microscopic examination of the
strap revealed that most of the separation wasn't a tear at all, it
was a cut, and this was very, very apparent. He based this on his
original examination of the severed ends of the strap and his
examination of subsequent test breaks.

The Investigative Committee's report does not otherwise refer to the tensile
test. Volume 3 of the report discusses the Committee's analysis of the evidence
on various issues. That discussion, which spans forty pages of the report, does
not explicitly refer to Malone's testimony, but does observe that Hastings'
testimony concerning a purse was troublesome because the strap which Judge
Hastings claimed he tried to have repaired was not torn, worn, or broken; it was
cut.

Based on its nearly three-year investigation, the Investigating Committee
concluded that:

The evidence, considered in its totality, clearly and convincingly
establishes that Judge Hastings was engaged in a plan designed to
obtain a payment of money from defendants facing jail sentences
imposed in his court by promising that with the payment they
would receive lenient non-jail sentences.

The report identifies thirty-two separate factual findings supporting this
conclusion. In addition to finding that Hastings and Borders had agreed on the
bribery scheme, the Investigating Committee identified fifteen points on which
Hastings had presented false testimony at his criminal trial and found that he
had introduced three fabricated documents as evidence. These findings do not
refer to the purse, the purse strap, Malone, or the tensile test.

C. Tobin's 1989 Complaints about Malone's Testimony

In September 1986, the Judicial Council of the Eleventh Circuit accepted and
approved the Investigating Committee's report and concluded that Hastings had
engaged in misconduct that might constitute grounds for impeachment. The
Judicial Council made a certification to this effect to the Judicial Conference of
the United States, which in March 1987 certified to the House of
Representatives its concurrence in the Council's determination that
impeachment might be warranted. After the House returned articles of
impeachment, the Senate in October 1989 voted to remove Hastings from his
judicial office.

Attorney Alan Baron served as impeachment counsel for the House of
Representatives and as prosecuting counsel for the Senate in connection with
the Hastings impeachment. Baron told the OIG that he did not offer testimony
by Malone in the impeachment proceedings before the House or the Senate,
that he thought Malone's testimony before the Investigating Committee was
confusing, and that the evidence concerning the purse was peripheral. Malone's
testimony before the Investigating Committee and the Laboratory reports dated
September 30, 1985, and November 7, 1985, were not made exhibits in the
proceedings before the House or the Senate. The articles of impeachment
returned by the House of Representatives and the accompanying report of the
House Committee on the Judiciary do not refer to the purse, the purse strap,
Malone, or the tensile test.

During the impeachment proceedings, Tobin and Malone, along with certain
other potential FBI witnesses, were told by the FBI Office of Congressional
Affairs to stand by should their testimony be needed. Neither Tobin nor Malone
ultimately testified before Congress. In preparing for possible testimony,
however, Tobin in August 1989 reviewed Malone's 1985 testimony before the
Investigating Committee. Tobin says this was the first time he had seen
Malone's testimony.

Tobin recalls that upon reviewing Malone's testimony, he immediately
contacted Kenneth Nimmich, then the chief of the SAS, to discuss problems
Tobin saw in the testimony. Tobin says that, in a brief conversation, he
indicated to Nimmich that there was a potential serious problem that could be
very embarrassing to the FBI regarding evidence manipulation and some very
inappropriate presentation of the data. He further recalls telling Nimmich that
Malone had testified inappropriately and inaccurately, and says he also
described Malone's testimony as misrepresented and false. Nimmich, Tobin
states, asked Tobin to provide a document detailing Tobin's exceptions to
Malone's testimony.

Tobin says that within several days of his meeting with Nimmich, he prepared a
memorandum describing his concerns about Malone's testimony. The
memorandum, which is addressed to Nimmich and not dated, states:

[A]n audience was requested with you late in the day of August 3,
1989, wherein you requested the specific details of my objections,
my exceptions to SA Malone's testimony and technical analysis as
to the effect of the testimony. Attached hereto are the requested
exceptions and analysis, as well as two photographs of test breaks.

Tobin's memorandum details serious concerns about Malone's testimony.
According to Tobin, he first gave the memorandum to his unit chief, Roger
Aaron. Aaron recalls discussing the concerns with Tobin, and Aaron wrote on
the memorandum, Sad to say, you are right on every point. This has to be done.
Tobin says that after he talked with Aaron, he placed a copy of the
memorandum in an envelope and either delivered it to Nimmich in person or
placed it in Nimmich's in-box. Neither Tobin nor Aaron recalls hearing
anything more about the matter after Tobin prepared his memorandum. Tobin
also says he did not at the time discuss his concerns with anyone other than
Nimmich and Aaron.

In his memorandum, Tobin criticized Malone for testifying that he had done the
tensile test and other things, such as taking photographs, labeling evidence, and

making test tears, that Tobin had in fact done. Tobin also took issue with
Malone's testifying that it had been necessary to jury rig the test device. Tobin
wrote, The equipment was designed for any solid material of suitable
configuration. The testing was in conformance with the Frye and generally
accepted guidelines' rules, contrary to the manner in which the testimony was
presented. (emphasis in original). Tobin also found areas where Malone
misused metallurgical terms or was inaccurate.

Tobin's more serious allegations centered on Malone's testimony that the force
needed to break the strap was a lot more than the average person could exert.
Tobin wrote that this testimony was in [d]irect contradiction to laboratory (AE)
findings supported by data. Presents apparently and potentially exculpatory
information as incriminating. He also stated that Malone's testimony that the
29.5 figure was meaningless is not true. With regard to how the tear was
created during the test, Tobin wrote that Malone's testimony was a [c]ompletely
fabricated failure propagation assessment. Tobin complained that Malone's
testimony about the test breaks suppresses apparent exculpatory material
behavior and presents test specimens as incriminating data. Tobin ended his
memorandum, however, by stating that [o]verall, the exceptions to the
testimony of SA Malone do not affect the technical assessment that the purse
strap has been cut.

The Laboratory apparently did not further investigate the serious allegations
made by Tobin about Malone's testimony. Malone told the OIG that sometime
after Hastings was impeached, Nimmich stopped him briefly in a hallway and
said that Tobin had made an allegation against him. Nimmich, according to
Malone, said that he had looked into the allegation and had concluded that there
was nothing to it. Malone said that before the OIG investigation, he was never
questioned by anyone about his testimony before the Investigating Committee
or Tobin's allegations, and he did not confront Tobin about the allegations.

When Nimmich reviewed Tobin's memorandum during the OIG investigation,
he said he did not recall ever seeing it before, the allegations it described, or
discussing the matter with Tobin. Although Nimmich did not deny that Tobin
might have raised these matters with him, he said that if he had received
Tobin's memorandum, he would have himself sent a memorandum to the

Laboratory's Director and asked Malone to respond to the allegations. If it
appeared Malone had acted inappropriately, Nimmich said he would have
referred the matter to the FBI OPR.

Upon checking his calendar, Nimmich found references to two meetings on
August 3, 1989, regarding the Hastings case. The first notes a meeting at 8:00
a.m. with Tobin, Malone, and another person who appears to have been Daniel
Dzwilewski, who then worked in the FBI's Office of Congressional Affairs and
who coordinated the appearance of witnesses before Congress for the
impeachment proceedings. The second reference is for 4:00 p.m. and simply
notes: Aaron - Tobin - re Hastings Case.

Through our investigation, we could not confirm that Nimmich met with the
persons indicated on his August 3, 1989, calendar. Nimmich does not recall any
such meetings. Dzwilewski says that it is conceivable that he met with
Nimmich, Tobin, and Malone, but he does not recall doing so. Both Tobin and
Malone say that they did not ever meet together with Nimmich regarding the
Hastings case. Aaron said he did not have a substantive conversation with
Nimmich regarding Tobin's allegations, and Tobin says he did not inform
Nimmich about Aaron's views on the matter.
D. Analysis

Based on our investigation, we conclude that Malone, in his 1985 testimony
before the Investigating Committee, falsely testified that he had himself
performed the tensile test and that he testified outside his expertise and
inaccurately concerning the test results. The OIG questioned Malone about
Tobin's allegations and, to his credit, Malone agreed with many points that
Tobin had raised. Malone maintained, however, that he was justified in giving
certain testimony because he was offering his own personal opinions rather
than expert opinions. This is not a persuasive rationale for the presentation of
inaccurate testimony by a Laboratory examiner.

Before the Investigating Committee, Malone testified falsely when he
responded yes to the question, did you actually, yourself, conduct this test? In
his OIG interview, Malone admitted he was technically wrong in his response
but noted he had been right there when the test was conducted. Malone's
presence when the test was performed does not justify his inaccurate response
to the question whether he actually conducted the test.
Malone's testimony that he conducted the test is particularly egregious, because
he proceeded to inaccurately describe how the test was performed and the
significance of its results. Malone, as noted above, testified that 29.9 pounds of
force is a lot more than the average person could exert. In an interview with the
OIG, Malone said this statement was his own layman's opinion based upon the
fact that he was not able to break the strap manually. Malone was testifying
outside his expertise and evidently did not understand the meaning of the 29.9
pound figure. He incorrectly told the Investigating Committee that [s]ince
nobody in our unit or our lab had ever done a test like this, and I have never
heard of any studies being published, it's almost a meaningless figure other than
it's a lot more than an average person could exert. He later admitted that the
questions were getting outside of [his] area of expertise, but he proceeded to
again say that 29.9 pounds was a meaningless figure.

Malone's testimony on this issue was inaccurate and unacceptable. Tobin in his
1989 memorandum noted that Malone's testimony was contradicted by the
findings in Tobin's November 7, 1985, report. This report was not completed
until nearly one month after Malone testified before the Investigating
Committee in October 1985, and we did not find evidence establishing that
Malone knew the information in the report when he then testified. Thus, we do
not find that Malone knowingly or deliberately testified in contradiction to
Tobin's conclusions as described in the November 7, 1985, report.

Moreover, Malone's testifying that he actually conducted the test, combined
with other facts, causes us to believe Malone is incorrect in now claiming that
he told Doar in 1985 that Tobin had conducted the test. As noted above, Doar
states that Malone did not tell him, and he did not otherwise know, that Tobin
had done the work. Doar's notes of his meeting with Malone do not refer to
Tobin, and the questions Doar asked during Malone's testimony suggest Doar
thought Malone conducted the test. Malone's statement to the OIG that Doar
said in 1985 he had forgot to subpoena Tobin is not credible. We conclude that

Doar did not know during the Investigating Committee proceedings that
Malone had not performed the tensile test. Recognizing that we are reviewing
events that occurred more than ten years ago, and given the record now before
us, we are not able to find that Malone engaged in intentional misconduct by
failing in 1985 to tell Doar that Tobin had performed the test or by inaccurately
describing to the OIG his conversations with Doar before Malone testified.

Malone also testified inaccurately about other matters outside his expertise. For
instance, regarding the break in the purse strap, Malone testified before the
Investigating Committee that he observed that it's not a sudden break like you
would have with a metal. When a metal breaks, bam, it's gone, it's broken, it's
instantaneous. Tobin noted that the statements about metals were [i]ncorrect. In
fact, designers and users abhor sudden breaks because of the potential for
catastrophic loss of life. Designers, therefore, attempt to insure gradual failures
so that it is not instantaneous. Malone acknowledged to the OIG that he might
have been wrong on this point, but said that he was conveying his own personal
opinion that metal breaks suddenly.

The testimony that Malone gave before the Investigating Committee cannot be
excused by his explanation that he was offering his personal opinion based on
his own experience or subjective beliefs. Laboratory examiners generally are
proffered as witnesses because they have expertise and can offer opinions
based on their scientific examination of evidence. The questions that Doar
asked Malone suggest that Doar thought that Malone had conducted the test
and was competent to explain the results. By failing to tell Doar that Tobin had
performed the tests, Malone not only misled the special counsel but may also
have caused him to forgo the testimony of another expert who was
appropriately qualified to answer certain questions raised by the Committee
about the tensile test.

In testifying before the Investigating Committee, Malone should have candidly
stated that he did not perform the tensile test and could not explain the
significance of its results. The transcript instead suggests that when Malone
was asked questions outside his expertise about the tensile test, he resorted to
fabrication rather than admitting he did not know the answer. After reviewing
Malone's testimony, Tobin observed, and we agree, that it appears that

someone's under pressure to be specific and can't because he doesn't have any
personal knowledge of the actual physical phenomena that are occurring, and
therefore, seems to make up, based upon very limited amount of information, a
sequence of events that just flat didn't occur.

We recognize that the inaccuracies in Malone's testimony do not appear to have
had any effect on the Investigating Committee's ultimate findings and
recommendation. Tobin himself acknowledged in his 1989 memorandum that
his complaints about Malone's testimony did not affect the technical assessment
that the strap had been cut. Moreover, the thirty-two factual findings supporting
the Investigating Committee's conclusion do not refer to Malone, the tensile
test, or the purse. Both John Doar, the counsel for the Investigating Committee,
and Chief Judge Gerald Tjoflat, who served on the Committee, told the OIG
that Malone's testimony did not influence the Committee's findings. Although
these facts indicate that Malone's misstatements did not affect the outcome of
the Investigating Committee proceedings, they do not in our view excuse
Malone's conduct.

We cannot understand the Laboratory's failure to further investigate the
allegations that Tobin made regarding Malone's testimony. We could not
confirm that Nimmich in fact reviewed Tobin's 1989 memorandum, but we are
persuaded that Tobin expressed his concerns orally to Nimmich. Tobin says he
did so, and, as noted above, Malone recalls that Nimmich told him that Tobin
had made an allegation and that Nimmich had determined there was nothing to
it. Aaron also recalls Tobin telling him in 1989 that he had met with Nimmich,
expressed his concerns about Malone's testimony, and that Nimmich had asked
Tobin to put his complaints in writing. Such a direction, Aaron noted, was an
indication the matter was serious. Given the serious nature of Tobin's
allegations, Nimmich should have taken steps to assure that they were
adequately investigated, even if for some reason Nimmich did not ever receive
Tobin's memorandum. If Nimmich did in fact conclude the allegations were
unfounded, he did so without adequate justification.

Nimmich should have assured in 1989 that Malone and Tobin were
interviewed, that the matter was otherwise appropriately investigated, and that
the resolution was documented. Such an investigation could have resulted in

appropriate administrative discipline and conceivably a referral for
investigation for possible criminal misconduct. Nimmich acknowledged to the
OIG that Malone's claiming to have performed tests he had not conducted
should, at the least, have resulted in a reprimand. We did not find any evidence
that Tobin's allegations were appropriately investigated or resolved by anyone
in FBI management.

The concerns raised by Tobin in 1989 also evidently were not then
communicated to Congress or otherwise outside the FBI. Alan Baron told the
OIG that he did not know until recently that Tobin had made any allegations
about Malone's 1985 testimony. Similarly, Hastings and Terence Anderson, an
attorney who has represented Hastings since 1981 and who represented him in
the impeachment proceedings, said that they first learned through media reports
in February 1997 that Tobin had criticized Malone's testimony.

Tobin states that in 1989, he discussed his concerns only with Nimmich and
Aaron. He also recalls that he told Aaron he would deal directly with Nimmich
and he asked Aaron not to get involved in the matter himself. Tobin further
says that Aaron returned to him the copy of the undated memorandum that
Aaron reviewed, and Tobin says that he did not give the memorandum to
anyone other than Nimmich until years later. Finally, Tobin says that when he
prepared the memorandum, he intended to defer to Nimmich if the latter
thought it did not warrant additional action.

Aaron did not approach Nimmich to discuss the matter, and says that while he
may have mentioned the matter to Malone's unit chief, he does not specifically
recall doing so. Alan Robillard, who was the chief of Malone's unit in August
1989, says he only recently learned from news accounts that Tobin had made
allegations concerning Malone's testimony related to the Hastings proceedings.
John Hicks, who became Laboratory Director in August 1989, says he did not
know of Tobin's allegations regarding Malone. Bernardo Perez, who served as
Deputy Assistant Director in the Laboratory from May 1989 through March
1991, does not recall being aware of these allegations and says that if this
matter had been brought to his attention, he would have sent a memorandum to
the FBI OPR and to FBI legal counsel. Daniel Dzwilewski, who coordinated
the appearance of FBI witnesses in the congressional impeachment

proceedings, told the OIG that he did not know of Tobin's criticisms of
Malone's testimony until he was advised in March 1997 that he would be
interviewed as part of the OIG investigation. Given these facts, and Nimmich's
claim that he does not recall this matter at all, we are unable to conclude that
there was a deliberate or concerted effort within the FBI to conceal Tobin's
allegations about Malone's testimony.
IV. Conclusion

We conclude that the Laboratory would benefit from a clear delineation of
responsibilities between units with respect to metals-related examinations,
better communication among examiners in this area, and recognition that
differences among examiners should be resolved on a scientific basis. We also
conclude that the EU should take steps to assure that its examiners properly
conduct and report their examinations of wires or other metals-related
evidence.

With regard to both the issue of the EU's measurement of wire gauge and the
controversy over the examination of holes in pipes in the La Familia case, we
think EU Chief J. Thomas Thurman should have focused more on assuring that
EU examiners were reporting the results of examinations in an appropriate
manner. William Tobin displayed poor judgment by failing to discuss his
concerns in the La Familia case with the principal examiner before Tobin
issued his revised dictation. We also think that Tobin and FTU examiner
Michael Ennis should have taken further steps, with involvement by their unit
chiefs if necessary, to attempt to resolve the apparent differences in their
conclusions about the holes found in the pipes. Because they did not reconcile
their opinions on a scientific basis, Tobin and Ennis might have contradicted
each other if they had testified about the results of their examinations.

In the Alcee Hastings case, we find that Michael Malone testified falsely and
outside his expertise in discussing tensile tests performed by the Laboratory.
Moreover, after Tobin raised concerns about Malone's testimony in 1989, thenSAS Chief Kenneth Nimmich failed to assure that the serious allegations of
examiner misconduct were appropriately investigated and addressed.

In reviewing Tobin's allegations, we also identified ways in which the policies
or the practices of the Laboratory could be improved:

(1) Laboratory management must assure that disputes about methodology or the
interpretation of data -- such as those illustrated by the wire gauge issue or the
examinations in the La Familia case -- are resolved professionally based on the
pertinent scientific knowledge and that the resolution is communicated to those
involved.

(2) There also appears to be a need, which the Laboratory seems to recognize,
for clearer delineation of the respective roles of different units in the area of
metallurgy and for improved communication between units. Defining the roles
more clearly and improving communication should help to assure that the
Laboratory's conclusions are reasonably supportable and properly reported, and
should also reduce unnecessary conflict between units.

(3) The Laboratory should adopt guidelines for examiner testimony that, among
other things, direct examiners to be accurate and to remain within their
expertise in testifying. The Laboratory might also benefit from procedures
aimed at identifying which examiner or other representative of the Laboratory
is best able to testify on particular issues. The Laboratory also should
implement an effective program for monitoring the testimony of its examiners.
Such guidelines and procedures would have helped to avoid problems like
those evidenced by Malone's testimony in the Hastings matter.

(4) Laboratory management must assure that concerns about the quality of the
Laboratory's work, such as those raised by Malone's testimony, are investigated
promptly and appropriately and that the resolution is documented.

We comment further on these issues in Part Six of this Report, which discusses
our general recommendations regarding the Laboratory and the role of
management.

#####

SECTION H13: GEORGE TREPAL

In a letter dated October 13, 1996, Whitehurst wrote to the OIG expressing
concerns about testimony by CTU examiner Roger Martz in Florida v. George
Trepal. In 1991, Trepal was found guilty of one count of murder and six counts
of attempted murder as a result of his adding the poison thallium nitrate to
bottled Coca-Cola. Trepal is now challenging his conviction, for which he was
sentenced to death. At the trial, Martz testified that [b]ased on [a
diphenylamine] test I concluded that thallium nitrate was added to the CocaCola. Martz also testified that a white powder, which had been found in a bottle
in Trepal's garage, was thallium nitrate.

Whitehurst complained in his letter that Martz had misstated the significance of
certain analytical tests or otherwise testified inaccurately. Some of Whitehurst's
allegations, such as suggesting that Martz should have volunteered in testifying
that his undergraduate major was in biology, do not merit further discussion
here. As a result of Whitehurst's letter, however, we did identify several
concerns about Martz's work in this case that are similar to ones we noted in
certain other matters discussed earlier in this Report.

To investigate this matter, we obtained the Laboratory's case file, reviewed
transcripts of testimony by Martz in a pretrial deposition and at the trial, and
questioned Martz in a sworn interview. After the FBI provided written
comments on a draft of this portion of the report, we also interviewed the two
Laboratory examiners who had provided scientific information for the FBI's
comments: chemist Thomas Jourdan, who recently became the unit chief for
the newly created Materials and Devices Unit and Steven Burmeister, who now
is an examiner in the CTU.

Given the tests that Martz actually performed, he could have properly stated in
his dictation and testimony that two samples of Coca-Cola, identified as Q1 and
Q2, were consistent with thallium nitrate having been added to them.

Alternatively, he correctly could have observed that Q1 and Q2 had elevated
levels of thallium and nitrate ions as compared to unadulterated Coca-Cola.
Martz, however, did not limit his conclusions in this way, and his work on the
case was deficient in several respects: (1) his dictation stated that the nitrate ion
was identified in samples Q1 through Q3 and those samples were consistent
with thallium nitrate having been added to them; this was incorrect insofar as
he had not performed tests necessary to reach these conclusions with regard to
Q3; (2) Martz did not acknowledge certain data obtained from the tests he
performed; (3) he failed to perform additional tests that were appropriate under
the circumstances; (4) in testifying, Martz improperly offered a stronger
opinion about the identification of thallium nitrate than he had expressed in the
dictation reviewed by his supervisor and included in the Laboratory report; (5)
Martz did not adequately document his work, his case notes were incomplete,
undated and inaccurate, and the charts were not accurately or clearly labeled;
(6) he lacked a sufficient analytical basis to opine that a bottle containing
thallium nitrate found in Trepal's garage, identified as Q206, contained no other
drug residues ; (7) he also gave an unsupported opinion about the purity of the
thallium nitrate in Q206; and (8) Martz in his deposition and trial testimony
made various inaccurate, incomplete, or unsupported statements.

In December 1988, several unopened Coca-Cola bottles were sent to the FBI
Laboratory for examination to detect tampering. The bottles had been found in
the home of a women who, along with her two sons, had become suddenly ill.
The woman, Peggy Carr, ultimately died from thallium poisoning; the children
survived. After the bottles were received in the Laboratory, examiner Don
Havekost of the Elemental Analysis Unit determined through the use of
inductively coupled plasma atomic emission spectroscopy (ICP) that the
contents of several bottles contained thallium. The ICP results showed that
samples Q1 through Q3 contained from 403 to 915 milligrams of thallium,
while none was identified in unadulterated Coca-Cola.
After Havekost identified thallium in Q1 through Q3, Martz was asked to
examine these samples further to possibly determine the form in which the
thallium was present. Thallium can appear as a soluble salt in different
compounds, including thallium chloride, thallium sulphate, and thallium nitrate.
Martz conducted tests that included a diphenylamine (DPA) test and ion
chromatography (IC). Based on the DPA and IC tests, Martz concluded that
nitrate ions were present in Q1 through Q3.

Martz prepared dictation that was approved by his unit chief Steve Allen in
February 1989 and later incorporated verbatim into a Laboratory report dated
July 10, 1990. The report was disclosed to the defense attorneys and Martz was
questioned about it, albeit perfunctorily, in a pretrial deposition and at trial. In
his dictation, Martz stated:

The contents of Q1 through Q3 . . . were analyzed for an anion associated with
thallium. The nitrate ion was identified in Q1 through Q3. The Q1 through Q3
cokes are consistent with thallium nitrate having been added to them.

(Emphasis added).

Martz had sufficient analytical data to support this conclusion with regard to
samples Q1 and Q2, but not Q3. His IC results clearly showed increased
concentrations of nitrate ions in samples Q1 and Q2 as compared to known,
unadulterated Coca-Cola. The case notes, however, do not reflect any IC
analyses for Q3. The DPA test referred to by Martz is a color spot test for a
range of oxidizing compounds, which include but are not limited to nitrates.
Given the tests he performed, Martz should not have stated in his dictation that
the nitrate ion was identified in Q3.

At trial, when asked if he had done any test other than the DPA test to
determine if there was thallium nitrate in the Coca-Cola, Martz stated that he
did one other test called ion chromatography. In his deposition, after describing
the DPA and IC test results, Martz said he had cover[ed] his entire investigation
of this case. Martz failed to acknowledge data he had obtained from other
analytical tests. In addition to the DPA and IC analyses, Martz's notes indicate
he also performed silver nitrate and barium chloride spot tests on Q1 through
Q3 and a sample of known Coca-Cola. These tests, respectively, will indicate
the presence of chloride or sulphate. The results of these tests are ambiguously
stated in Martz's notes and, given his testimony, he evidently did not rely upon
them in reaching his conclusions.

Martz also analyzed sample Q1 by mass spectrometry (MS), scanning electron
microscopy/energy dispersive x-ray analysis (SEM/EDX), and x-ray powder
diffraction (XRPD). The XRPD results, obtained after the sample was treated
by burning, indicated the presence of thallium chloride, but not thallium nitrate.
The MS data, also obtained after burning or other treatment of the sample,
indicated the possible presence of thallium chloride, phosphate, sulphate, and
possibly oxide, but not thallium nitrate. The SEM/EDX results showed the
presence of thallium, sodium, potassium, calcium, chlorine, and phosphorous.
The fact that the MS and XRPD results for Q1 did not show the presence of
thallium nitrate may be explained by the sample preparation process. Martz,
however, did not acknowledge this analytical data in his trial or deposition
testimony. In his interview with the OIG, he said he did not rely on the MS,
SEM/EDX, or XRPD data in reaching his conclusion that thallium nitrate had
been added to the Coca-Cola. This conclusion, Martz said, was based on the
DPA and IC tests and the information about thallium he received from
Havekost.

Martz also failed to perform additional tests that were appropriate under the
circumstances. First, he did not perform the simple validation experiment of
adding thallium nitrate to known unadulterated Coca-Cola and analyzing the
mixture in the same manner as Q1. This could have usefully indicated whether
the results that Martz observed from his tests other than DPA or IC were due to
the sample preparation process. Moreover, Martz could have quantified the
nitrate he identified in the questioned samples. Havekost had identified the
quantity of thallium in Q1 through Q3. If Martz had quantified the nitrate, he
could have determined if the relative amounts of the thallium and nitrate were
consistent with their having been present in the Coca-Cola in the form of the
compound thallium nitrate.

By testifying that in his opinion thallium nitrate had been added to the CocaCola, Martz overstated the significance of the analytical results in a manner
similar to what he did in the World Trade Center case. As discussed in Part
Three, Section C, there Martz as the chief of the CTU approved Lynn
Lasswell's conclusion that mass spectrometry had identified urea nitrate on
certain evidence, when the results in fact merely established the presence of
urea and nitrate ions. In Trepal, the test results that Martz said he relied upon
showed the presence of nitrate in samples Q1 and Q2. The ICP results from the

tests earlier performed by examiner Havekost identified thallium in samples
Q1, Q2, and Q3. Taken together, these results showed that nitrate and thallium
ions were present in Q1 and Q2, but they do not necessarily demonstrate that
the compound thallium nitrate had been added to the Coca-Cola.

When Martz opined that thallium nitrate had been added to the Coca-Cola, he
also went beyond his written report, which said only that the samples were
consistent with thallium nitrate having been added to them. We do not accept
Martz's view that an examiner may properly offer an opinion about the
identification of a questioned substance that is stronger than the conclusions
described in the Laboratory report where, as here, the opinion rests on the same
data and analyses as the report. In our interview, Martz's explanation for his
testimony appeared to be that he was convinced he was right. The process of
supervisory review -- which is intended to assure that conclusions are
reasonably supported -- is seriously undermined if examiners feel free to offer
opinions that are stronger than those their unit chiefs have reviewed and
approved for inclusion in reports. In this case, Martz should have confined his
conclusions to those contained in his dictation.

Martz also failed to prepare notes and charts that adequately described the
analyses performed and the results obtained. We have commented on this same
issue in our discussion of Martz's work in the VANPAC case. In Trepal,
Martz's handwritten notes indicate that he performed spot tests with AgCl (sic)
and BaNO3 (sic) with the results same for all. In his OIG interview, Martz
acknowledged that his notes were inaccurate and said he meant that he did a
silver nitrate (AgNO3) test for chloride and a barium chloride (BCl) test for
sulphate. His notes do not indicate whether same for all means the results were
positive or negative, and Martz in his interview said he thinks the results for
chloride were positive and he cannot remember what the results for sulphate
were. This again illustrates the importance of accurate notes, both to permit
thorough supervisory review and to allow an examiner later to refresh his or her
memory. We also are concerned that Martz's notes do not describe the use of
appropriate blanks or traceable standards.

Samples were not clearly identified on certain MS charts, and Martz
acknowledged that other MS charts were actually labeled incorrectly. The IC

charts, which Martz thinks reflect work performed by someone in the MAU, do
not identify who ran the tests, are not dated, do not specify the instrumental
conditions, and contain unidentified handwritten notes. The deficient
documentation for the IC tests is particularly troublesome because Martz
principally relied upon the IC results in concluding that thallium nitrate had
been added to the Coca-Cola.

Martz lacked a sufficient analytical basis to opine, as he did in his pretrial
deposition, that a brown bottle containing thallium nitrate contained no other
drug residues. This bottle, which had been found in Trepal's garage in
December 1989, was identified as Q206. Martz testified that, based on XRPD
and FTIR analyses, no drug residues were present in the thallium nitrate found
in the bottle. With regard to the FTIR, Martz relied on spectra for the
questioned sample and a sample of known thallium nitrate of unspecified origin
that were each of unacceptably poor quality. Spectra of this quality would not
permit the identification of the questioned sample as thallium nitrate, much less
rule out the presence of other possible drugs. Furthermore, XRPD, which
identifies only crystalline compounds, is not the method of choice for
identifying drug residues.

During his OIG interview, Martz acknowledged that based on the XRPD and
FTIR results, his conclusion was debatable. Quite inexplicably, in testifying
about drug residues, Martz did not refer to MS results that were probably his
best data, although at the trial he later mentioned the MS analysis in testifying
on another issue. To determine if drug residues were present, Martz should
have made an extraction of the sample and followed a protocol of the type
routinely used in forensic laboratories for drug identification.

Martz also made unsupported statements in testifying about the purity of
thallium nitrate identified in specimen Q206, the powder found in a bottle in
Trepal's garage. In his deposition, Martz said that Q206 was easily over 90
percent thallium nitrate. And possibly as high as 95 to 99 percent. At trial, he
stated, In my opinion it's greater than 95 percent pure, because I did not find
any other impurities. Martz lacked sufficient data to support these statements,
given that he said they were based only on the FTIR and XRPD analyses and,

as he acknowledged in his testimony, he did not attempt to quantitate the
powder.

Finally, Martz in his deposition and trial testimony made various inaccurate,
incomplete or unsupported statements. In his deposition, he stated that to his
knowledge, thallium nitrate would not be absorbed into the hand. During his
OIG interview, he acknowledged that this statement was not based on specific
literature, but instead reflected his general belief that such chemicals are not
absorbed through the skin. We readily identified, however, an article published
in 1988 which states that severe systemic poisoning has occurred from skin
contact, and other basic reference sources note that thallium nitrate may be
absorbed through the skin. On this topic, Martz should have said he did not
know whether it would be absorbed through the skin since he was not able to
provide a properly informed answer.

At trial, Martz misspoke in stating initially that he concluded based on the DPA
test that thallium nitrate had been added to the Coca-Cola. He acknowledged in
an OIG interview that his conclusion was based on both the DPA test and the
IC results, which he did later discuss in his testimony. In describing the IC
results at trial, however, Martz testified that all samples were tested while his
charts indicate that only two of three samples were. Martz told the OIG that
sometimes when he had three samples that were suspected to be the same, he
would not test all of them. This might be acceptable if his reports and testimony
properly reflected the actual work performed; they do not. Martz also testified
that no nitrates were present in the known Coca-Cola, without noting that the
IC results indicated at least trace amounts of nitrates. During his OIG interview,
Martz described these various misstatements as oversights or technicalities. By
so characterizing his conduct, Martz seemed not to appreciate the importance of
accurate testimony.

In his work in Trepal, Martz appeared to have a lower threshold of scientific
proof than is generally accepted in forensic science and to lack appropriate
scientific rigor in his approach to examinations. Martz did not conduct
additional tests that were appropriate under the circumstances, and in reaching
his conclusions, he did not consider analytical results of his tests other than the
DPA and IC tests. His case notes and charts were inaccurate and incomplete,

and he testified inaccurately on several points. He committed a serious error
when, based on the same data, he rendered an opinion at trial that was stronger
than the opinion in his dictation. Such conduct by an examiner is of concern
whenever it is displayed in casework, and it is particularly disturbing in a
matter such as Trepal where the death penalty is a potential result.

#####

PART FOUR: WHITEHURST'S ALLEGATIONS OF RETALIATION

I. Introduction

Whitehurst claims that he has been the victim of retaliation because he
expressed concerns about the FBI Laboratory to the FBI and others. He offers
several examples of alleged retaliation and the retaliatory atmosphere within
the FBI.

Whitehurst claims that the FBI retaliated against him in 1990 by suspending
him for one week and placing him on six months' probation because he accused
Terry Rudolph of misconduct in the Psinakis case. Whitehurst further alleges
that the FBI retaliated against him and his wife, Cheryl Whitehurst, in 1992 by
ignoring their allegations of computer software theft within the Criminal
Investigative Division and by failing to punish an FBI employee who assaulted
Cheryl Whitehurst. According to Whitehurst, the retaliation continued into
1993, when the FBI management ordered him to undergo psychiatric
examination and later to participate in psychotherapy. Whitehurst also charges
that in 1993, the FBI retaliated against him by opening an investigation into his
alleged disclosure of confidential information to members of the Senate
Judiciary Committee.

As further examples of retaliatory conduct, Whitehurst alleges that the FBI
compiled and released derogatory information about him as Henthorn material
in the 1993 World Trade Center trial and the 1995 Simpson trial. Whitehurst
further alleges that in mid-1994, the FBI retaliated against him by transferring
him from the explosives analysis unit to the paints and polymers program.

Whitehurst supports his claims of retaliation with a number of anecdotal
examples of the FBI's intent to retaliate. Those examples include instances in

which Kearney, Hahn, and Thurman allegedly made threatening remarks to
Whitehurst. Whitehurst also maintains that other FBI employees have
expressed reluctance to criticize the FBI for fear of retaliation.

In the following sections, we analyze Whitehurst's claims to determine whether
there is a factual basis for Whitehurst's belief that he suffered retaliation
because he raised concerns about the Laboratory. With respect to all but one of
Whitehurst's claims, we conclude that the evidence does not substantiate
Whitehurst's allegations of retaliation. Generally, the circumstances of those
events supported the decisions made by the FBI management, and we discerned
no retaliatory or wrongful purpose behind those decisions.

We are not able to reach a conclusion concerning Whitehurst's claim that the
FBI sought to punish him by forcing him to undergo psychiatric evaluation.
Despite our requests, Whitehurst failed to provide a medical release form that
would have allowed key personnel in the Health Care Program Unit and
Employee Assistance Program to discuss medically sensitive information about
Whitehurst. Without statements from these personnel, we are not in a position
to reach a conclusion concerning this claim by Whitehurst.

II. Analysis of Whitehurst's Allegations

A. The Claim that the FBI Improperly Punished
Whitehurst for His Conduct in the Psinakis Case

Whitehurst charges that in November 1990, the FBI improperly suspended him
without pay for seven days and placed him on six months probation because he
accused Terry Rudolph of misconduct in the Psinakis case.

In reviewing this matter, we obtained and reviewed relevant files and records
from FBI OPR, Administrative Summary Unit (ASU) of the Administrative
Services Division, and the Laboratory, along with pertinent provisions of the
FBI Manual of Administrative Operations and Procedures. We also interviewed
former Laboratory Director John Hicks, former SAS Chief Kenneth Nimmich,
FBI OPR Unit Chief Ralph Regalbuto, FBI OPR case agent Gary Bald, FBI
ASU Unit Chief Jerry Donahoe, FBI ASU case agent Peter Gullota, AUSA
Charles (Ben) Burch, and FBI Special Agents Tony Maxwell and Frank Doyle.
We conclude that Whitehurst's claim is not substantiated.

1. Factual Background

In 1989, the United States Attorney's Office in San Francisco prosecuted
Psinakis for smuggling explosives to the Philippines. A jury ultimately
acquitted Psinakis of all charges in June 1989. During the FBI's investigation,
agents found tools purportedly used to strip detonation cord containing PETN.
In January 1982, explosives residue examiner Terry Rudolph rendered an
opinion that the tools contained traces of PETN. Rudolph's opinion is the
subject of discussion earlier in this Report. See Part Three, Section A.

Shortly before trial, Assistant United States Attorney (AUSA) Ben Burch
became concerned that Rudolph's examinations were incomplete and requested
more conclusive examinations. Whitehurst conducted these additional
examinations, which confirmed the presence of PETN in the samples.
However, while preparing to testify, Whitehurst reportedly became concerned
that his identification of PETN resulted from contamination of the sample by
Rudolph. Whitehurst based his concerns on observations of Rudolph's work
habits during his training period with Rudolph. Whitehurst acknowledged that
he was not in the Laboratory in 1982 when Rudolph actually examined these
items.

When Whitehurst arrived in San Francisco for trial, he failed to share his
concerns about contamination with AUSA Burch or FBI Special Agent Frank

Doyle, the case agent. Whitehurst explained that during a pre-trial meeting, he
heard Burch joke about Doyle's personal acquisition of government frequent
flyer miles. According to Whitehurst, the conversation reflected a flippant
attitude toward a violation of FBI regulations and convinced him that he could
not share his concerns about possible contamination. Whitehurst therefore
decided to first express his concerns about Rudolph while testifying at trial.

When Whitehurst subsequently learned that he would not be called as a witness
at trial, he told us he worried that his concerns might never surface. Whitehurst
therefore approached the defense expert, Dr. Lloyd Snyder, and as Whitehurst
later explained in a sworn statement to FBI OPR:

I . . . advised Dr. Lloyd Snyder of my misgivings concerning the
testimony of SSA Terry Rudolph in this matter. I specifically
advised Dr. Snyder that Rudolph's laboratory and work area were,
and to my knowledge had always been, extremely sloppy and
contaminated and that PETN, high explosive material, found on
the evidence that Rudolph was testifying to could have originated
from Rudolph's laboratory or work area. I suggested that cross
examination of SSA Rudolph specifically address this issue. . . .
Later, as I was leaving the area of the court room, I noted that Dr.
Snyder and Mr. Brosnahan, the Defense Attorney, were in
conference in the hall. I went up to Dr. Snyder, shook his hand,
and advised him that I would not be able to testify and that I was
sorry as I had something to say. I specifically did that in order to
raise Mr. Brosnahan's attention to what I felt was a miscarriage of
justice.

Sometime before departing, Whitehurst told AUSA Burch that Rudolph was a
slob and that the evidence could have been contaminated, but did not mention
his conversation with the defense expert.

Whitehurst then returned to the Laboratory and reported to Laboratory Director
Castonguay that he may have violated FBI regulations and federal law by

making his disclosures. After interviewing Whitehurst about the matter, SAS
Chief Nimmich prepared a June 30, 1989, memorandum recommending that
Whitehurst be orally reprimanded for discussing the matter with the defense
without notifying the prosecutor or case agent. Also during June 1989, the
Laboratory received a letter from AUSA Burch that was highly critical of
Rudolph's work in the case, but praised Whitehurst for his concerns about
integrity. In response, the Laboratory initiated a review of Rudolph's work.

As a result of Nimmich's June 30, 1989, memorandum, FBI OPR opened an
investigation into Whitehurst's conduct. Gary Bald, FBI OPR case agent,
conducted a fact-finding investigation, which included interviews of Burch,
Doyle, and Whitehurst. Laboratory management also sent a memorandum to
FBI OPR again recommending an oral reprimand. Bald subsequently
completed his investigation and sent these materials to the ASU for a
determination of possible administrative action. Pursuant to FBI OPR policy,
Bald did not make any recommendation.

ASU case agent Pete Gullota received these materials and prepared the case
review memorandum, dated July 23, 1990. In that memorandum, Gullota stated
that although there is little doubt that SSA Whitehurst's concerns were
legitimate, Whitehurst exercised an egregious display of poor judgment by first
contacting the defense and disclosing confidential information in violation of
the FBI's Manual of Administrative Operations and Procedures (MAOP).
Gullota also observed that Whitehurst's concerns about contamination were
speculative, in that he had not observed Rudolph conducting the examination in
this case. Gullota recommended that Whitehurst be suspended for seven days
without pay and placed on six months probation.

In response, Laboratory Director Hicks met with Weldon Kennedy, the FBI
Chief of the Administrative Services Division (with responsibility for the
ASU), and James Greenleaf, the FBI Associate Deputy Director of
Administration. Hicks argued that the recommended punishment was too
severe and that Whitehurst should receive only an oral reprimand. Hicks also
sent two memoranda to Greenleaf recommending that the suspension be
dropped. Kennedy and Greenleaf ultimately agreed only to delay the

suspension to allow Whitehurst an opportunity to immediately appeal the
decision.

Whitehurst appealed his suspension in a memorandum to Kennedy, stating, My
appeal is based on my recognition that my actions were completely warranted
under the circumstances. As a result of Whitehurst's perceived failure to
acknowledge his erroneous judgment, Gullota recommended to Kennedy and
Greenleaf that the appeal be denied. In a November 1, 1990, letter, Greenleaf
denied Whitehurst's appeal and ordered the seven-day suspension to commence
on November 2, 1990.

2. Analysis

The evidence does not support Whitehurst's assertion that this incident reflected
a retaliatory action by the FBI. Specifically, the FBI management had reason to
criticize Whitehurst's conduct in the Psinakis case. Whitehurst erred in failing
to disclose his concerns about contamination to SA Doyle, AUSA Burch, or
Whitehurst's supervisors at the Laboratory, while making those concerns
known only to the defense. As the explosives residue examiner who succeeded
Rudolph, Whitehurst was obliged to fully report his findings and concerns to
those in charge of the prosecution. We cannot accept Whitehurst's rationale that
because he thought the AUSA and case agent had disregarded FBI regulations
regarding frequent flyer miles, Whitehurst was justified in not reporting his
concerns about contamination. Even if Whitehurst thought the AUSA and case
agent would disregard his concerns, Whitehurst should have reported those
concerns to his supervisors in the Laboratory.

Whitehurst also displayed poor judgment in deciding to raise his concerns
about contamination for the first time while testifying. Whitehurst reported that
he only contacted the defense expert when he learned that he would not be able
to present these views himself while testifying at trial. Whitehurst's decision to
surprise the parties with this information at trial was itself improper. His
actions threatened to unnecessarily complicate the presentation of this evidence
and possibly delay the trial while the parties investigated his concerns. In this

respect, Whitehurst acted without regard for the adverse impact that his conduct
might have on the overall case.

With that background, we conclude that the Laboratory management did not act
with the intent to retaliate against Whitehurst. To the contrary, the evidence
showed that Nimmich, Castonguay, and Hicks repeatedly sought the least
severe form of discipline possible for Whitehurst -- oral reprimand. The
evidence further showed that Hicks personally intervened with Kennedy and
Greenleaf to obtain rescission of the ASU's recommended suspension.
According to Jerry Donahoe, Chief of the ASU at the time, Hicks' action was
very unusual. We also note that during his first interview of Whitehurst,
Nimmich determined that the matter would be treated as an administrative (as
opposed to criminal) matter. According to FBI OPR's Gary Bald, the FBI
Laboratory was not authorized to make that decision. Nimmich's determination,
however, also suggests that the Laboratory was not acting with an intent to
unfairly punish Whitehurst.

Additional evidence also supports our finding. In the June 30, 1989,
memorandum, Nimmich praised Whitehurst as a highly principled examiner
who approaches his work with an exceptional degree of professionalism.
Similarly, Hicks, in his memoranda to Greenleaf, lauded Whitehurst's
contributions to the Laboratory. In our interview, Hicks stressed that the FBI
disciplined Whitehurst, not for raising his concerns, but for the manner in
which he raised his concerns. Both Nimmich and Hicks stated that they did not
believe that Whitehurst's suspension was a retaliatory act.

The evidence also does not support Whitehurst's suggestion that FBI OPR acted
with a retaliatory intent. Gary Bald, FBI OPR case agent assigned to the case,
denied that he had any personal motivations against Whitehurst and told us that
he would have investigated anyone who appeared to be acting in retaliation
against Whitehurst. Bald stated that Whitehurst was correct to express his
concerns about Rudolph's work but should have done so within the FBI. We
also found that the manner in which Bald conducted the investigation did not
suggest a retaliatory motive. For example, we saw no evidence that Bald
withheld information favorable to Whitehurst or recommended that the ASU
take any disciplinary action. In fact, the documents show that when Bald

learned about the allegations against Rudolph, he directed the Laboratory to
furnish him with the results from the review of Rudolph's work. Bald explained
that he wanted to ensure that the Laboratory was addressing Whitehurst's
allegations against Rudolph.
Our investigation also did not support the conclusion that the ASU acted with a
retaliatory purpose. SSA Pete Gullota, who recommended that Whitehurst
receive a letter of censure, suspension, and probation, denied any intention to
retaliate against Whitehurst and stated that he had no prior knowledge of
Whitehurst or Rudolph. ASU Chief Jerry Donahoe, who approved Gullota's
recommendation, likewise disclaimed any prior knowledge of Whitehurst or
intent to retaliate. In deciding to recommend suspension, Gullota reportedly
considered the results of FBI OPR investigation, the recommendations of other
ASU agents, the MAOP schedule of penalties, and Whitehurst's personnel file.
Gullota was not able to find a similar case for comparison. Gullota concluded
in his July 23, 1990, report:

While ASD recognizes SSA Whitehurst's intentions were
honorable in that he was concerned about the integrity of the
judicial process and the FBI's role in it, it is apparent that he
exercised extremely poor judgement and unprofessional conduct
in the manner in which he expressed his concerns regarding SSA
Rudolph's analysis.

The factors reviewed by Gullota appear to be appropriate. See MAOP, Part I, '
13-12(1).

We also conclude that the conduct of FBI management in this matter did not
reflect an intention to retaliate against Whitehurst. In fact, it appears that the
decision by Kennedy and Greenleaf to delay Whitehurst's suspension pending
appeal was unusually lenient. According to Gullota, the FBI ordinarily imposes
such disciplinary action immediately, without an opportunity for appeal.
Because of Hicks' intervention, however, the FBI held Whitehurst's suspension
in abeyance pending resolution of the appeal. Gullota could not recall FBI
management acting similarly in any other matter. Furthermore, both Gullota
and Hicks told us that Whitehurst's suspension likely would have been lifted

had Whitehurst acknowledged that he exercised poor judgment. Gullota stated
that only after Whitehurst claimed that his actions were completely warranted
under the circumstances did Gullota decide to recommend that Whitehurst's
appeal be denied.

We nevertheless are troubled by the apparent disparity in treatment given to
Whitehurst and Rudolph in this matter. As we concluded earlier, the FBI
Laboratory management clearly failed to properly investigate the allegations
against Rudolph. The FBI Laboratory's treatment of Rudolph -- and particularly
its conclusion that Rudolph's procedures were weak analytically but accepted
practice in 1982 -- seemed to give Rudolph every benefit of the doubt. The
discipline imposed by the FBI on Whitehurst seems severe in contrast, although
there is little to suggest that its severity grew out of a retaliatory motive. The
apparent disparity illustrates yet another problematic consequence of the FBI's
failure to address deficiencies in Rudolph's work.

B. The Claim that the FBI Ignored and Covered
Up Whitehurst's Allegations Concerning
Software Theft and Assault

In 1991, Whitehurst reported to FBI OPR that personnel in the Criminal
Investigative Division (CID) were stealing computer software and that
Supervisory Special Agent Kenneth Neu had assaulted his wife, Cheryl
Whitehurst, for reporting these software thefts. Whitehurst claims that FBI
OPR ignored and covered up these allegations.

In connection with this allegation, we reviewed the files and records of FBI
OPR and DOJ OPR, along with selected, relevant documents from the CID and
Cheryl Whitehurst's personnel file. We also interviewed the following
personnel: former Criminal Investigative Division (CID) Assistant Director
William Baker, former CID Investigations Support Section Chief Joseph
Koletar, former CID Assistant Section Chief James Summerford, CID Safe
Streets Unit Chief Kenneth Neu, former CID Automation Support Group
specialist Christopher Belan, former FBI OPR case agent Stephen M. Largent,

former Deputy Laboratory Director Bernardo M. Perez, former DOJ OPR
Assistant Counsel David Bobzien, FBI OPR Unit Chief Ralph Regalbuto, and
former Principal Deputy General Counsel Steven Robinson.

The evidence did not substantiate Whitehurst's allegations of wrongdoing and
retaliation by FBI OPR.

1. Factual Background

In late-1990, Cheryl Whitehurst worked as a management analyst within the
Automation Support Group (ASG) of the CID. She was the point of contact for
CID personnel with respect to computers. Her duties included maintaining the
computers, troubleshooting any problems, and handling computer repair orders.

On November 26, 1990, Cheryl Whitehurst sent a memorandum to her Unit
Chief, Robin Brown, alleging that personnel within the CID were routinely
using unlicensed copies of software programs, including the Harvard Graphics
program. After Brown allegedly failed to address the issue, Cheryl Whitehurst
brought the matter to the attention of CID Section Chief Joseph Koletar. As a
result, in a March 18, 1991, memorandum, Koletar notified all CID Section
Chiefs that the ASG shortly would purge all unauthorized software.

On March 20, 1991, SSA Kenneth Neu confronted Cheryl Whitehurst in her
office about the decision to purge the Harvard Graphics program. According to
both Cheryl Whitehurst and Neu, Neu was angry. Two days later, Frederic
Whitehurst sent a memorandum to the FBI OPR requesting an investigation
into the use of unlicensed software in the CID and Neu's behavior toward
Cheryl Whitehurst.

In response, the FBI OPR opened an investigation and assigned the matter to
OPR case agent Steve Largent. Largent obtained a signed statement from
Cheryl Whitehurst on April 9, 1991. In that statement, Cheryl Whitehurst
described her efforts to report the alleged software thefts and added, I consider
this to be an administrative or management problem. I believe that Section
Chief Joe Koletar is addressing the problem. She further denied that she had
received any retribution for reporting the use of unlicensed software. She also
stated that she was afraid that Neu might hit her, but that Neu did not physically
touch or threaten her. On May 6, 1991, DOJ OPR Assistant Counsel David
Bobzien reviewed these facts and recommended termination of the
investigation in view of the absence of serious misconduct. The FBI OPR
closed the investigation on May 15, 1991.

In April 1995, Frederic Whitehurst wrote to the Deputy Attorney General about
the alleged assault, triggering a new DOJ OPR inquiry. The DOJ OPR
reviewed the FBI OPR file and re-interviewed Cheryl Whitehurst on October
11, 1995. At that time, Cheryl Whitehurst reiterated that Neu never threatened
to hurt her, and that she suffered no medical, emotional, or physical problems
as a result of the incident. She further stated that a desk separated her from Neu
during the ten-minute confrontation. Cheryl Whitehurst added that she did feel
threatened and afraid, but did not ask Neu to leave, tell Neu that he was scaring
her, call for help, ask a co-worker who entered her office to get help, complain
to authorities within the FBI, or seek legal action against Neu. Likewise, Cheryl
Whitehurst stated that after the confrontation, she was not afraid of Neu, did
not refuse to work with him, and was not uncomfortable alone with him. The
DOJ OPR concluded that Neu had been rude and abrasive, but that his conduct
did not rise to the level of misconduct warranting further inquiry.

During the DOJ OPR inquiry in 1995, Whitehurst also complained that Cheryl
Whitehurst's supervisor, James Summerford, had retaliated against her for
raising issues about unlicensed software. The DOJ OPR referred this allegation
to the DOJ OIG. The DOJ OPR then closed the inquiry.

2. Analysis

The evidence does not show that the FBI OPR ignored Whitehurst's allegations
concerning the computer software thefts. The FBI OPR's investigation revealed
that Cheryl Whitehurst first made her allegations about unauthorized software
in late-November 1990. In March 1991, as a result of Cheryl Whitehurst's
complaint, Section Chief Joseph Koletar instructed the ASG to purge all
unauthorized software and notified CID personnel that future generations of
unauthorized software [would] meet a similar fate. When the FBI OPR
subsequently interviewed Cheryl Whitehurst in April 1991, she reported that
Section Chief Koletar was addressing the problem. The FBI OPR then referred
the matter to DOJ OPR attorney David Bobzien for a determination concerning
the appropriateness of criminal charges. Bobzien advised the FBI OPR that
although a technical violation of the copyright statute might have occurred, the
matter was being handled appropriately by the CID and did not rise to the level
of serious misconduct. Thus, Bobzien recommended that investigation be
closed. In sum, the investigation conducted by FBI OPR indicated that CID
management had addressed the software problem in a timely fashion and, as a
result, DOJ OPR approved closing the investigation. We find no reason to
criticize the FBI OPR investigation in this regard.

Whitehurst further claims that the FBI OPR ignored and covered up the
retaliatory assault on his wife. Contrary to this claim, the FBI OPR obtained a
sworn statement from Cheryl Whitehurst in which she stated that she had not
suffered any retribution as a result of her allegations. With respect to the
alleged assault, Cheryl Whitehurst reported in her sworn statement in pertinent
part:

I was visited in my office by SSA Kenneth Neu, who I would
describe as being extremely mad. Neu recently had back surgery
and I know that he wears a backbrace, so I am not sure whether
his physical actions were due to back pain or due to his extreme
anger. He walked into my office with his fist clenched at his side
and his face extremely red. I have known him since 1982 and
know him to be a very mild mannered person. He was so upset
that I stepped behind my desk because I was afraid that he might
hit me and he began ranting and raving about the fact that he
could not erase the Harvard Graphics software in his computer
because it would wipe out years of work. I told him that the
software was illegal software and he indicated to me that he did

not feel it was illegal. He stated that he got the software from
someone in Division 3 and indicated to me, he did not feel that he
needed a license for the software. During the conversation,
Monica Finley Williams, Secretary to Deputy Assistant Director
Nick O'Hara, walked into the room and upon observing Neu's
actions, immediately turned and walked out. I later talked to her
and she indicated that Neu was extremely mad.

Neu did not physically touch me nor did he threaten me in
anyway. I would characterize his demeanor as being extremely
mad and I believe that he was venting his anger on me. I did feel
intimidated by him since he was yelling at me but again no threats
or physical contact occurred.

*****

I have since spoken with and worked with Kenneth Neu, who was
very pleasant to me. There does not appear to be any animosity
towards me. I have not received any other retribution that I am
aware of due to my efforts to address the software problems with
the Criminal Investigation Division.

Cheryl Whitehurst added that her supervisors also later spoke with Neu and
Neu's unit chief about the incident.

Steve Largent, the case agent in the FBI OPR assigned to the investigation, told
us that he investigated the charges by obtaining this statement from Cheryl
Whitehurst and gathering other pertinent documents. Largent stated that he then
referred the matter to the DOJ OPR pursuant to the FBI's normal practice in
cases involving possible criminal conduct. DOJ OPR attorney David Bobzien
told us that he then reviewed this material and determined that Neu had not
engaged in serious misconduct and that there was no need for further

investigation. According to Bobzien, he reached those conclusions because Neu
did not physically threaten Cheryl Whitehurst or have physical contact with
her. Bobzien indicated that no one encouraged him to close down the
investigation and that he would have considered any attempt to influence him
to be improper. Both Bobzien and Largent denied any intention to retaliate
against Frederic or Cheryl Whitehurst.

This evidence does not substantiate the claim that the FBI OPR, or the DOJ
OPR for that matter, sought to retaliate against Frederic or Cheryl Whitehurst
by ignoring the assault allegations. DOJ OPR attorney David Bobzien simply
reached the conclusion that the facts did not establish criminal conduct
warranting further action. While this conclusion is supportable, we think that
the FBI OPR can be faulted for failing to interview Neu about his conduct
toward Cheryl Whitehurst. Largent told us that he did not interview Neu
because Cheryl Whitehurst indicated in her statement that she had not been
assaulted by Neu. In her statement, however, Cheryl Whitehurst stated, . . . I
stepped behind my desk because I was afraid that he might hit me. . . . This
statement suggested that she believed she had been assaulted by Neu, contrary
to Largent's assertion. In view of that statement, we think that a thorough
investigation would have included an interview of Neu about his conduct and
presentation of that interview to the DOJ OPR for consideration.

Whitehurst also makes other claims of misconduct. He charges that Koletar
committed a clear obstruction of justice by ordering the removal of
unauthorized software, thereby destroying evidence which would have been
relevant in [sic] criminal investigation. Whitehurst assumes without basis that
the use of unlicensed software in these circumstances was a criminal violation.
Contrary to Whitehurst's suggestion, not every unauthorized use of software
rises to the level of criminal conduct. In any event, Koletar told us that before
issuing his March 18, 1991, memorandum, he brought the matter to the
attention of FBI OPR and learned that the allegations did not rise to the level of
an OPR matter. Likewise, David Bobzien of DOJ OPR concluded that the use
of unlicensed software within the CID was at most a technical violation. Even
Cheryl Whitehurst viewed the matter as an administrative or management
problem. We find Whitehurst's allegation that Koletar obstructed a possible
criminal investigation to be baseless.

Whitehurst also claims that beginning in the fall of 1992, Assistant Section
Chief James Summerford harassed Cheryl Whitehurst because she had reported
the alleged software abuse. Our investigation showed that in September 1992,
Summerford sent two memoranda to Section Chief Koletar regarding
interpersonal problems between Cheryl Whitehurst and other CID personnel. In
September 1992, Cheryl Whitehurst sent Koletar her own memorandum in
response. Additionally, although Summerford rated Cheryl Whitehurst
exceptional overall in her December 31, 1991, performance evaluation, he rated
her only fully successful overall in her December 31, 1992, performance
evaluation.

Contrary to Whitehurst's suggestion, this evidence does not show that Cheryl
Whitehurst's complaints about unlicensed software caused Summerford to
retaliate against her. Summerford's memoranda and performance evaluations
criticize Cheryl Whitehurst based on her skills in getting along with other CID
personnel, not for raising allegations concerning illegal software use. In fact,
Summerford told us that he believed that Cheryl Whitehurst had properly
reported the software abuse. As some evidence of that assertion, Summerford
gave Cheryl Whitehurst the highest rating possible -- exceptional -- in her
December 31, 1991, performance evaluation, well after she raised the software
issues. Koletar also told us that in his view, it was appropriate for Summerford
to write such memoranda based on repeated complaints from CID personnel
about Cheryl Whitehurst. Koletar stated that he had no reason to believe that
Summerford's actions were retaliatory. Even Chris Belan, Cheryl Whitehurst's
co-worker who was highly critical of Summerford's management style, stated
that he could not say that Summerford's treatment of Cheryl Whitehurst was
motivated by her allegations of illegal software use. In sum, the evidence did
not support Whitehurst's allegations that Summerford acted to retaliate against
Cheryl Whitehurst.

Whitehurst further alleges that during a review of these allegations in 1994 by
the Office of General Counsel (OGC), Principal Deputy General Counsel
Steven Robinson ignored his allegations and refused even to take notes about
the alleged assault. Robinson told us that he stopped taking notes because
Whitehurst appeared to be having a flashback during the discussion.
Specifically, according to Robinson, Whitehurst began speaking emotionally
about Vietnam, started rocking back and forth, and stated that he would shove a
knife up any person who would assault his wife. Associate General Counsel

John Sylvester, who was present, also recalled that Whitehurst became upset
during this discussion and started talking about Vietnam. Robinson and
Sylvester later reported that no further action was warranted by the OGC in
view of the conclusions that had been reached by FBI OPR and DOJ OPR. We
do not think that Robinson or Sylvester ignored Whitehurst's allegations, but
simply reached a conclusion that FBI OPR had properly conducted and closed
the investigation.

In sum, we conclude that the evidence did not support Whitehurst's allegations.

C. Referral for Psychiatric Examination and Counseling

Whitehurst alleges that in 1993 the FBI ordered him to undergo psychiatric
evaluation and therapy in retaliation for raising various allegations.

In order to investigate Whitehurst's claim, we reviewed pertinent reports and
correspondence regarding Whitehurst's referral to psychiatric evaluation and
counseling and pertinent provisions of the FBI Manual of Administrative
Operations and Procedures. We also reviewed pertinent portions of the
transcript of Whitehurst's testimony at the Darryl Green case. We further
interviewed Assistant United States Attorney Rachel Adelman Pierson and
Detective Robert Rice from the Darryl Green case; Laboratory personnel
including John Hicks, Kenneth Nimmich, Alan Robillard, and James Corby;
and former Section Chiefs of the FBI Personnel Recruiting and Benefits
Section, Thomas Pickard and Richard Hildreth.

We also interviewed Joan Earnshaw from the FBI Employee Assistance
Program (EAP) and Margaret Grey from the FBI Health Care Program Unit
(HCPU) generally about FBI practices with respect to psychological counseling
and limited duty status. However, we were not able to interview these witnesses
or other relevant personnel from the EAP (Sheron Finister) and HCPU (Adele
Miller) specifically about Whitehurst. These witnesses advised us that they

would only discuss matters relating to Whitehurst if we obtained an express
medical release from Whitehurst. Whitehurst and his attorney refused to
provide such a release despite our repeated requests. At Whitehurst's request,
we also attempted to interview psychologist Dr. Edwin N. Carter, but Dr.
Carter did not return our many telephone calls.

Because we view these witnesses as important to the retaliation issue, we could
not reach definite conclusions regarding these allegations. However, our
investigation has failed to disclose any retaliatory purpose, as alleged by
Whitehurst.

1. Factual Background

In 1992, the United States Attorney's Office in the District of Columbia tried a
felony child abuse case in the Superior Court. The defendant, Darryl Green,
was charged with burning a seven-year-old girl by placing a heated Bic lighter
against her inner thigh. The defendant maintained that he had only briefly
touched the child with the lighter. To test the lighter's capacity to burn skin, the
detective in the case, Robert Rice, contacted the FBI Laboratory.

Rice spoke with Whitehurst and asked to use a thermocouple, a device used for
testing the temperature of objects. Whitehurst told Rice that the Laboratory did
not have a thermocouple, and stated, Let's see what we can do. Whitehurst then
activated the lighter, turned it upside down to heat the metal collar for
approximately one minute and one-half, and pressed the metal collar against his
inner forearm for approximately 30 seconds, leaving a horseshoe shaped burn
approximately the size of a quarter. While accounts vary, it appears that
Whitehurst burned himself in the presence of Rice, Unit Chief Jim Corby, and
another technician in the MAU. Later that day, Whitehurst exhibited that burn
to the jury.

SAS Assistant Section Chief Alan Robillard stated that when he heard that
Whitehurst had burned himself, he was appalled. Robillard met with
Whitehurst and expressed his disapproval. During the conversation Whitehurst
reportedly became distraught and started talking about Vietnam and veterans
issues, incompetent personnel in the Explosives Unit, Terry Rudolph, and
Whitehurst's wife. According to Robillard, Whitehurst appeared to be on the
verge of a nervous breakdown. Robillard told us that, as a result, he reported
these events to SAS Chief Nimmich and possibly Laboratory Director Hicks.

After hearing about the burning incident, Nimmich spoke with an EAP
counselor about Whitehurst. Nimmich stated that he took this step because the
burning incident constituted a total anomaly from standard laboratory practice,
health and safety . . . . Nimmich told us that he was concerned because
Whitehurst appeared to be under considerable stress and had become very
emotional during recent conversations with Nimmich. As a result of Nimmich's
conversation with the EAP counselor, the EAP reported the matter to Margaret
Grey, the Unit Chief of the FBI Health Care Program Unit (HCPU). Nimmich
and Grey later discussed the matter and, according to Nimmich, agreed that
Whitehurst should be referred for a psychiatric examination. According to
Whitehurst, EAP counselor Joan Earnshaw told him that he needed to go for
the examination. Whitehurst told us that he did not take issue with this referral
for psychiatric examination.

On December 3, 1992, Whitehurst was examined by Dr. Alen Salerian, the
psychiatric consultant to the EAP. Salerian found no evidence of overt
psychiatric disorder. However, due to the nature of Whitehurst's recent actions
and Salerian's conversations with Whitehurst and Nimmich, Salerian strongly
recommended that Whitehurst either receive a voluntary psychiatric evaluation
or be referred for a fitness-for-duty evaluation.

As a result of Dr. Salerian's recommendation, on January 19, 1993, Thomas
Pickard, Section Chief of the Personnel Recruiting and Benefits Section,
referred Whitehurst to the Isaac Ray Center in Chicago for a psychiatric
examination and psychological assessment. Although the letter referring
Whitehurst to Chicago stated that the examination was mandatory, Pickard told
us that he understood that Whitehurst voluntarily agreed to go to this

examination. Whitehurst also told us that he voluntarily went to Chicago for
evaluation, although he was not crazy about it.

Whitehurst was evaluated in Chicago by Drs. Jonathan Kelly and Orest
Wasyliw on February 9, 1993. Kelly and Wasyliw prepared reports in which
they found that Whitehurst was fit for duty and did not manifest any
psychological illness that substantially impaired his functioning as a special
agent. However, due to certain personality features, Kelly observed that
Whitehurst would benefit from a course of voluntary psychotherapy, and
Wasyliw likewise recommended such counseling for Whitehurst to deal with
current tensions and increase his range of coping resources. Wasyliw also
commented that the Bureau would do well to find ways to give Whitehurst an
occasional rest.

After receiving these evaluations, Grey prepared an April 23, 1993,
memorandum to the Laboratory Division that included two recommendations:
(1) that the Laboratory place Whitehurst on limited duty status, evaluate his
work assignments to reduce external stress, and monitor his behavior, and (2)
that Whitehurst seek psychotherapy with monthly feedback to the HCPU.
Pickard told us that he personally made the recommendations in Grey's
memorandum.

On May 12, 1993, Whitehurst met with Pickard to appeal these
recommendations. Although Whitehurst and Pickard report somewhat differing
versions of the meeting, it appears that at the conclusion, Whitehurst indicated
that he would attend counseling and Pickard agreed to later re-evaluate his
recommendations based on the input from Whitehurst's therapist.

Whitehurst subsequently met for several sessions with psychologists Donald R.
Soeken and Edwin N. Carter. The evidence indicates that Whitehurst selected
these psychologists himself. During the course of this psychotherapy, Soeken
and Carter sent letters reporting on Whitehurst to Adele Miller, supervisor of
the Fitness-for-Duty Subunit of the HCPU. In a November 17, 1993, letter,
Carter advised Miller that Whitehurst was fit to perform his job. Furthermore,

Carter stated that nothing in the earlier reports or current data suggested that
Whitehurst should be compelled to participate in therapy. In a January 21,
1994, letter, the FBI advised Whitehurst that in view of Carter's comments and
a concurrence by Salerian, Whitehurst would no longer be required to attend
regular psychotherapy sessions.

2. Analysis

Whitehurst's conduct in burning himself was highly questionable for several
reasons. Whitehurst's experiment was clearly outside of his expertise and did
not follow any scientific protocol. It is especially troubling that Whitehurst
chose to experiment on himself, since we understand that Whitehurst could
have contacted a pathologist at the Armed Forces Institute of Pathology for
expertise concerning burned skin. Moreover, despite Whitehurst's suggestion
that the situation required his immediate action, it appears that no one
compelled or even encouraged Whitehurst to conduct such an experiment. In
fact, Rachel Adelman Pierson, the AUSA who prosecuted the Darryl Green
case, expressed surprise that Whitehurst would burn himself without first
speaking with her. While Pierson clearly appreciated Whitehurst's actions to
assist in the case, she also stated that she was not surprised that the FBI referred
Whitehurst for counseling based on this incident.

In view of the unusual nature of Whitehurst's conduct and Dr. Salerian's
recommendation, we do not think that Personnel Section Chief Thomas Pickard
acted unreasonably in referring Whitehurst for a fitness-for-duty evaluation.
Applicable regulations permitted the FBI to refer an employee for a fitness-forduty examination when there was a question about the employee's capacity to
meet medical requirements of the position. The regulations further specified:

An agency may order a psychiatric examination (including a
psychological assessment) only when: (i) The result of a current
general medical examination which the agency has the authority
to order under this section indicates no physical explanation for

behavior or actions which may affect the safe and efficient
performance of the individual or others . . . .

In his letter referring Whitehurst to Drs. Kelly and Wasyliw, Pickard cited this
provision and stated that the FBI had reviewed Whitehurst's medical history
and Dr. Salerian's letter. Pickard stated in that letter that due to Whitehurst's
behavior and questionable judgment, Pickard was requesting that Whitehurst
report for a psychiatric examination. Pickard likewise told us that he relied on
Dr. Salerian's recommendation in referring Whitehurst to this psychiatric
fitness-for-duty examination. Whitehurst's actions implicated the safe
performance of his duties; therefore, we conclude that the evidence supported
Pickard's actions.

We also cannot conclude that individuals within the Laboratory Division,
specifically Hicks, Robillard, and Nimmich, acted with the intent to retaliate
against Whitehurst by referring him for psychiatric counseling. Hicks
essentially played no role in this matter. Hicks recalled learning about the
matter from someone with the EAP. He determined that the matter should be
handled by the Administrative Services Division/Personnel Section and the
Health Care Program Unit. Our interviews of Pickard and others confirmed that
Hicks did not play a role in any subsequent decisions.

Robillard played only a minor role in Whitehurst's referral for psychiatric
evaluation. Specifically, Robillard said he told Nimmich and Hicks about the
burning incident and about his emotional conversation with Whitehurst.
Robillard told us that he took this action because he was concerned that
Whitehurst was distraught and in turmoil during their conversation. We think
that Robillard was justified in notifying an EAP counselor about Whitehurst.

Likewise, we find no evidence that Nimmich sought to retaliate against
Whitehurst. Nimmich reported the matter to an EAP counselor and discussed
the matter with Margaret Grey of the HCPU. Nimmich said he became
concerned because he considered the burning incident to be a sign of significant
stress. According to Nimmich, he worried about Whitehurst's judgment in

deciding to burn himself, rather than conduct a true scientific test. Furthermore,
Nimmich stated that he was aware that Whitehurst was under considerable
stress because of his efforts to adopt a child, address his wife's work-related
problems, attend law school, and work through a tremendous backlog of cases.
Nimmich reported that during this time, Whitehurst would become tearful and
emotional due to this stress. We do not find any apparent retaliatory motive in
Nimmich's conduct.

Absent the necessary medical release forms from Whitehurst, we were not able
to assess the roles and motives of EAP counselor Joan Earnshaw, EAP
Administrator Sheron Finister, or HCPU Unit Chief Margaret Grey in referring
Whitehurst to psychiatric evaluation by Dr. Salerian or in recommending
psychological counseling and limited.duty.

We also sought to assess the motivations of Pickard in recommending that
Whitehurst be placed on limited duty status and undergo continuing therapy.
Pickard told us that he made these recommendations based on the reports of
Drs. Kelly and Wasyliw, after speaking with his Assistant Section Chief,
Margaret Grey of the HCPU, and Sheron Finister of the EAP. According to
Pickard, at the time he made these decisions he was not aware of Whitehurst's
complaints to FBI OPR. Pickard also told us that he had no reason to retaliate
against Whitehurst. Pickard further specifically denied that he was influenced
by anyone from the Laboratory Division or from FBI OPR in making these
decisions. We note that Pickard's recommendations -- that Whitehurst seek
therapy and that his work assignments be evaluated to reduce external stress -generally were consistent with the recommendations of Drs. Kelly and
Wasyliw. Thus, based on this evidence we do not conclude that Pickard sought
to retaliate against Whitehurst in making these decisions.

We note that James Corby expressed a different view of this matter. Corby told
us that he thought that referral for psychiatric care was one of the ways that the
Bureau had of punishing people. Regarding whether the FBI had punitively
referred Whitehurst to psychiatric care, Corby stated, I don't have proof of that,
but I think it was, yes. It is difficult to credit this assertion by Corby, however,
because he did not possess any personal knowledge of such retaliatory action.
Corby acknowledged that he did not participate in the decisions regarding

Whitehurst's referral to psychiatric evaluation or counseling. Nor did Corby
know the official reason for Whitehurst's referral to counseling. Moreover,
despite Corby's assertion, he could not identify any other instance in which the
FBI reportedly punished anyone in this fashion. Finally, Corby's reasons for
concluding that the FBI acted punitively were obtuse: He pointed to the fact
that the FBI had used a bureau psychologist or psychiatrist and had required
Whitehurst to pay for ongoing therapy. We find Corby's assertions to be
unconvincing.

In addition to the general allegation of retaliatory purpose, Whitehurst makes a
number of specific allegations. Whitehurst alleges that the FBI acted without
authorization in requiring him to participate in psychotherapy. Grey told us that
the FBI considers mandatory psychotherapy to be a medical mandate that could
be imposed only by a physician. The applicable provision of the FBI Manual
for Administrative Operations and Procedures (MAOP) provided in part:

Medical mandates (restrictions) are assigned by the Bureau's
Chief Medical Officer (CMO), the Bureau physician, or a private
physician utilized by the employee when he/she has an illness,
injury, physical/medical or mental condition that precludes or
limits their ability to perform the expected duties of their position.

MAOP Part I, Section 20-5.2.1 (eff. 3/26/92). The evidence shows that none of
the medical personnel listed above authorized mandatory psychotherapy for
Whitehurst. Drs. Kelly and Wasyliw merely recommended voluntary
counseling. Accordingly, if the FBI compelled Whitehurst to attend
psychotherapy without the authorized medical mandate, the FBI would have
violated its own policy.

Our investigation disclosed differing views as to whether the FBI compelled
Whitehurst to attend psychotherapy or Whitehurst agreed to attend these
sessions voluntarily. Pickard acknowledged that he did not have the authority to
order Whitehurst to attend psychotherapy and specifically denied doing so.
Pickard stated that while he could order Whitehurst to complete a fitness-for-

duty examination, he could only encourage Whitehurst to seek counseling
following that examination. As evidence of the non-mandatory nature of the
counseling, Pickard pointed to the April 12, 1993, memorandum from the
HCPU to the Laboratory Division, which only recommended that Whitehurst
seek psychotherapy. Pickard told us that after he discussed this
recommendation with Whitehurst on May 12, 1993, Whitehurst voluntarily
agreed to seek counseling. SAS Chief Kearney likewise told us that he spoke
with Whitehurst about the recommendation, and Whitehurst agreed to attend
counseling.

On the other hand, it appears that Dr. Carter and Adele Miller of the HCPU
understood that the FBI had required Whitehurst to attend these counseling
sessions. Carter stated in a November 17, 1993, letter to Miller: It seems to me
that the requirement that Mr. Whitehurst continue in an ongoing psychotherapy
program as a condition of his continued employment is unnecessary. Moreover,
Miller sent a January 21, 1994, letter to Whitehurst stating:

In his report dated November 17, 1993, [Dr. Carter] states that
you are capable of resuming your full time duties and
responsibilities without limitations or restrictions, as a Special
Agent, and you will no longer be required to attend regular
psychotherapy sessions.

(Emphasis added).

According to this evidence, the FBI may have advised Whitehurst that he was
required to attend psychotherapy sessions. Because we were not able to speak
with HCPU personnel -- and especially Adele Miller -- about this subject,
however, we could not reach a definite conclusion as to whether the HCPU
failed to follow FBI regulations or whether that failure resulted from a
retaliatory purpose.

Whitehurst also claims that the FBI improperly required him to pay for his
psychotherapy sessions. When questioned concerning this claim, both Pickard
and Grey told us that as a general rule, the FBI only covers the cost of fitnessfor-duty examinations. According to Pickard and Grey, an FBI employee who
is fit-for-duty is responsible, either directly or through health insurance, for the
cost of treating any medical or psychological condition. We found support for
this policy in the MAOP, which provided in part:

Once a medical examiner has made a fitness-for-duty
determination and has completed the medical report, any
recommendation for additional examinations, repeat or follow-up
tests or other medical action will be paid by the Bureau when such
recommended action is for the purpose of determining whether
such malady exists and is solely to determine the employee's
fitness for duty. Once a determination of fitness for duty is made,
any additional examinations(s) is considered treatment and will
not be recompensed.

MAOP, Part I, Section 20-5.1.5 (eff. 3/26/92)(emphasis added). It appears that
under this policy, Whitehurst was responsible for the cost of treatment after
Drs. Kelly and Wasyliw found Whitehurst to be fit-for-duty.

Finally, Whitehurst claims that Adele Miller, the occupational nurse from the
HCPU who monitored his ongoing therapy, abused her authority in several
respects. We were not able to reach any conclusion about this allegation
because Whitehurst did not provide a medical release form as requested.

In sum, we conclude that Laboratory personnel did not act with a retaliatory
purpose in referring this matter to the HCPU and EAP. However, because
Whitehurst did not provide the necessary medical release forms to allow us to
interview key personnel with the HCPU, EAP, and Personnel Section, we
cannot reach a definite conclusion concerning their motives in referring
Whitehurst to psychotherapy.

D. The Claim that the FBI Improperly
Investigated Whitehurst for Disclosure of
Confidential Information

Whitehurst alleges that FBI OPR improperly initiated an investigation into his
disclosure of information to the Senate Judiciary Committee.
In connection with this matter, we obtained and reviewed the complete FBI
OPR file in its investigation. We also interviewed FBI OPR case agent Sarah
Pickard, FBI OPR Unit Chief Ralph Regalbuto, and DOJ OPR Assistant
Counsel Judith Wish.

Our investigation did not substantiate Whitehurst's allegations.

1. Factual Background

On January 26, 1993, a representative from the FBI Inspection Division, Office
of Planning, Evaluation and Audits (OPEA), interviewed Whitehurst as part of
an evaluation project conducted by that Office. During that interview,
Whitehurst raised concerns about widespread voucher fraud, incompetence,
inadequate protocols, backlogged cases, and safety problems in the Laboratory
Division. He also complained of bootlegged copies of computer software in the
Laboratory and Criminal Investigative Divisions. Whitehurst further reported
that he had made copies of the content of computers in these Divisions and
forwarded this information to Senator Joseph Biden for further examination.

As a result of this interview, on February 9, 1993, FBI OPR case agent Sarah
Pickard opened an investigation into Whitehurst's allegations of voucher fraud.
Pickard later spoke with FBI OPR Unit Chief Ralph Regalbuto, who agreed
that Whitehurst also should be questioned about his possible unauthorized

disclosures of confidential FBI records to Senator Biden, Chairman of the
Senate Judiciary Committee.

On April 6, 1993, Pickard interviewed Whitehurst about the alleged voucher
fraud and possible unauthorized disclosures of case information to the Senate
Judiciary Committee. According to the statement later prepared by Pickard
based on this interview, Whitehurst stated that he lacked any specific
knowledge about voucher fraud in the Laboratory Division. Whitehurst also
reportedly acknowledged sending two letters to the Senate Judiciary Committee
in the fall of 1992, the first concerning the alleged computer software theft
within the Criminal Investigative Division and the second concerning Terry
Rudolph. According to the statement, Whitehurst denied that he provided any
information from Bureau files to the Senate Judiciary Committee. Pickard
subsequently requested that Whitehurst read and sign the written statement, but
Whitehurst refused to do so because the FBI OPR would not permit prior
review of the statement by Whitehurst's attorney.

Pickard thereafter sought information about Whitehurst's disclosures to the
Senate Judiciary Committee directly from Judiciary Committee staff. Pickard
told us that she sought to verify that Whitehurst had not made unauthorized
disclosure of FBI information to the Committee. A representative from the
Judiciary Committee refused to disclose Whitehurst's letters to the Committee,
citing concerns about constituent confidentiality. After several months, the FBI
OPR decided not to further pursue the matter with the Judiciary Committee.

Because FBI OPR developed no facts warranting administrative action, the FBI
Personnel Management Section (Former Personnel Benefits and Recruiting
Section) notified Whitehurst in late-August 1994 that the administrative inquiry
would be closed.

2. Analysis

The evidence did not support Whitehurst's allegation that FBI OPR acted in
retaliation by investigating possible unauthorized disclosures to the Senate
Judiciary Committee.

The evidence shows that a factual basis existed for believing that Whitehurst
may have made an unauthorized disclosure of Bureau information. Specifically,
the OPEA reported that Whitehurst had stated during his January 26, 1993,
interview that he had copied the contents of computers in the Laboratory and
Criminal Investigative Divisions as evidence of alleged software theft.
Whitehurst also reportedly told the OPEA that because FBI OPR did not take
his allegations seriously he forwarded this information to the Senate Judiciary
Committee. Thus, Whitehurst's own statements to the OPEA at least raised the
possibility that he violated FBI rules and regulations through the unauthorized
release of Bureau records. See MAOP Part 1, Section 1-19(2); FBI Standard
Employment Agreement, FD-291. Although Whitehurst denied that he made
any unauthorized disclosures, FBI OPR was not required to accept Whitehurst's
assertion especially after he refused to sign the statement taken from him by
FBI OPR.

When questioned regarding their motives, both FBI OPR case agent Sarah
Pickard and FBI OPR Unit Chief Ralph Regalbuto told us that the FBI OPR
decided to inquire into possible unauthorized disclosures based on the
foregoing facts. Pickard denied that she or Regalbuto had any motive to
retaliate against Whitehurst. Regalbuto told us that he had no basis to believe
that Pickard sought to retaliate against Whitehurst. Likewise, they denied that
anyone from the Laboratory or Criminal Investigative Division encouraged
them to inquire into possible unauthorized disclosures by Whitehurst. Pickard
and Regalbuto also told us that under the circumstances, they thought it was
appropriate to close the investigation without a finding that Whitehurst made
unauthorized disclosures. We find no reason to believe that FBI OPR acted
with retaliatory motives.

We also find no basis to conclude that FBI OPR acted improperly in refusing to
permit Whitehurst's attorney to review his statement before Whitehurst signed
it. Our investigation showed that Pickard conducted her interview as an
administrative inquiry. As such, Whitehurst received immunity from criminal

prosecution and had a duty to cooperate. Under these circumstances, FBI
regulations provided that an employee does not have a right to legal
representation in connection with the interview. See MAOP, Part I, Section 136.2(4); MIOG 263-5.2(4). Furthermore, the FBI has guidelines providing that
an employee's attorney is not permitted to review materials in conjunction with
a disciplinary investigation unless such materials were first reviewed and
redacted by the Civil Discovery Review Unit (CDRU) of the Legal Counsel
Division. The evidence showed that Pickard explained these provisions to
Whitehurst, and the FBI provided copies of these regulations to Whitehurst's
counsel. We see no retaliatory purpose in these actions.

E. The Claim that the FBI Improperly Disclosed
Henthorn Material Concerning Whitehurst

Whitehurst alleges that FBI OPR improperly disclosed derogatory information
about him in the World Trade Center and Simpson cases.

We obtained and reviewed copies of the materials that the FBI released in the
World Trade Center and Simpson cases. We also obtained and reviewed the
CDRU case management sheet and logs, which described the CDRU's
document review process in detail. We further interviewed various FBI
personnel, including General Counsel Howard Shapiro, Deputy General
Counsel Thomas Kelley, former Principal Deputy General Counsel Steven
Robinson, CDRU Supervisory Paralegal Specialist Patricia Giannico, AUSAs
Paul Gardephe and Gil Childers of the Southern District of New York, OPR
Unit Chief Ralph Regalbuto, and former MAU Unit Chief James Corby.

The evidence shows that the FBI did not improperly disclose derogatory
information about Whitehurst in these cases.

1. Factual Background

a. World Trade Center Case

In January 1994, prosecutors in the World Trade Center case in New York
identified Whitehurst as a possible witness in the case. AUSA Paul Gardephe
of the Southern District of New York asked the FBI to review Whitehurst's
personnel file for possible Brady and Giglio material. In response, Thomas
Kelley, Deputy Assistant Director of the Legal Counsel Division, directed the
Civil Discovery Review Unit (CDRU) to conduct a so-called Henthorn review
of Whitehurst's files. Supervisory Paralegal Specialist Patricia Giannico and
Paralegal Vickie Hayden of the CDRU reviewed various personnel and OPR
files and identified 27 pages of responsive documents (Package 1). After the
CDRU redacted confidential and sensitive information in Package 1, the FBI
provided copies of these documents to AUSA Gardephe.

On January 13, 1994, AUSA Gardephe traveled to the FBI Headquarters and
personally reviewed Whitehurst's administrative and personnel files. Gardephe
selected an additional 89 pages of documents from these files. The CDRU
again redacted confidential and sensitive information from these documents,
and the FBI provided copies of the documents to AUSA Gardephe (Package 2).

The prosecution ultimately decided not to call Whitehurst to testify in the case.
According to World Trade Center case prosecutor Gil Childers, prosecutors
released only part of these materials to the defense and did not disclose any
records relating to Whitehurst's psychological evaluation.

b. Simpson Case

During the trial of People v. Orenthal James Simpson in Los Angeles in
September 1995, Simpson's defense counsel provided notice that they intended
to call Whitehurst to testify that Roger Martz routinely biased results in favor

of the prosecution. In response, Los Angeles District Attorney Gil Garcetti
requested impeachment material about Whitehurst from the FBI. Specifically,
Garcetti asked for materials to be used to cross-examine Whitehurst from
personnel files, or other files, memoranda, or reports involving the
performance, competence, or discipline of Special Agent Whitehurst. Garcetti
also requested the opportunity to review documents and conduct interviews of
FBI personnel relating to any acts of perjurious conduct, acts of dishonesty or
any acts which impact on the credibility of SSA Whitehurst.

The FBI treated Garcetti's letters as a request for Henthorn materials. A CDRU
employee reviewed Whitehurst's personnel files from the date of the prior
Henthorn Review, but reported finding no additional Brady or Giglio material.
FBI Principal Deputy General Counsel Steven Robinson provided the Henthorn
material from the World Trade Center case (both Packages 1 and 2) to
prosecutors in the Simpson case. These records were released to the defense.
Judge Lance Ito later ruled that Whitehurst would not be permitted to testify.

2. Analysis

The evidence does not show that the FBI selected the Henthorn materials with a
retaliatory intent.

The OGC selected and released these documents only in response to specific
requests from prosecutors. The evidence showed that employees with the
CDRU conducted the review for Henthorn material as they would in any other
case. Both CDRU Supervisory Paralegal Specialist Patricia Giannico and
AUSA Paul Gardephe denied selecting documents to unfairly malign
Whitehurst and denied being aware of any attempt by others to unfairly select
these Henthorn materials. OGC attorney Steven Robinson told us that he did
not review or even discuss the documents before providing them to the
Simpson prosecutors. We see nothing in these circumstances to suggest that the
FBI released these documents for a retaliatory purpose.

Most importantly, our review of the documents themselves did not suggest that
the FBI acted with an improper purpose. In conducting this review, we kept in
mind that the purpose of a Henthorn review is to identify documents that might
be used to impeach a law enforcement witness at trial. By definition, Henthorn
materials cast an unflattering light on such a witness.

Package 1, which was selected by employees with the CDRU, primarily
included materials from FBI OPR investigation in the Psinakis matter. These
materials included ASU case agent Gullota's report, which accurately restated
Whitehurst's own version of the facts. The materials also included statements of
AUSA Burch complimenting Whitehurst's performance and conduct in the
case. The materials further included Hicks' memorandum recommending a
reduced sanction, which also placed Whitehurst's actions in a more flattering
light. Thus, the materials in Package 1 included a balanced version of the
Psinakis matter. These materials were appropriately disclosed.

Package 1 also included the April 23, 1993, memorandum from Margaret Grey
of the HCPU to the Laboratory Division, recommending psychotherapy and
limited duty status. In view of this letter, Whitehurst contends that the FBI also
should have released a November 17, 1993, letter from psychologist Edwin
Carter to the FBI, stating that Whitehurst should not be required to participate
in psychotherapy, and a January 21, 1993, letter from the FBI to Whitehurst,
terminating his referral to psychotherapy. In response to a request for Henthorn
materials, the FBI was required to produce documents containing possible
impeachment material. Thus, it was not necessary to provide Carter's
November 17, 1993, letter. That letter also contained a detailed psychological
profile of Whitehurst that would have raised privacy concerns. However, for
the sake of completeness, it would have been appropriate for the FBI to notify
prosecutors that the recommendations in the April 23, 1993, memorandum had
been terminated. Deputy General Counsel Thomas Kelly, who reviewed these
materials before their release, told us that he was not aware of the letter
terminating Whitehurst's referral to psychotherapy. Kelly added that he would
have released the letter had he seen it. Under the circumstances, we do not find
any retaliatory purpose in the failure to release this letter.

Package 2 included materials from the FBI OPR investigations into allegations
concerning the Psinakis case, Terry Rudolph, computer software theft and
assault, and unauthorized disclosures by Whitehurst. Because AUSA Gardephe
personally selected these documents, it is difficult to argue that these
documents evidence an improper purpose on the part of the FBI. Furthermore,
our review of Package 2 documents shows that these records did not present a
biased picture of the OPR investigations. For example, these records also
included Whitehurst's own version of the events underlying each of the OPR
matters.

In sum, we conclude that the evidence does not substantiate Whitehurst's
allegations of retaliation in connection with the release of Henthorn materials.
F. The Claim that the FBI Punished Whitehurst
by Reassigning Him to the Paints and Polymers
Program

Whitehurst alleges that in May 1994, the FBI reassigned him from the
explosives residue program to the paints and polymers program to punish him
for reporting misconduct in the Laboratory Division and especially in the
Explosives Unit.

In connection with this allegation, we reviewed pertinent memoranda relating
to transfer and reassignment of personnel in the SAS. We also reviewed
Whitehurst's personnel file. Further, we interviewed the following FBI
personnel: Acting Laboratory Director Donald Thompson, former Laboratory
Directors John Hicks and Milton Ahlerich, former SAS Chiefs James Kearney
and Kenneth Nimmich, current SAS Chief Randall Murch, former MAU Unit
Chief James Corby, explosives residue examiner Steven Burmeister, CTU
examiner Drew Richardson, former explosives residue chemists Kelly Mount,
Mary Tungol, and Monica Knuckles, former Explosives Unit technician Amy
Sirignano, FBI General Counsel Howard Shapiro, former Principal Deputy
General Counsel Steven Robinson, former OGC attorney John Sylvester, and
OGC attorney Laura Blumenfeld.

The evidence does not support Whitehurst's allegation.

1. Factual Background

In October 1993, FBI Deputy Director Floyd Clarke instructed the Laboratory
Division to provide a plan for reorganization as part of the general
reorganization of FBI Headquarters. Pursuant to this reorganization plan, target
staffing levels required that the Laboratory reduce its personnel by 65 special
agents and support staff within two fiscal years. To accomplish this, Laboratory
management prepared a report entitled, Mandated Personnel Reductions and
Organizational Restructuring, which proposed the elimination of numerous
personnel, the consolidation of units, and a reduction in non-critical services.
With respect to the Scientific Analysis Section (SAS), that report proposed that
the Elemental and Metals Analysis Unit (EMAU) be merged into the Materials
Analysis Unit (MAU) under Unit Chief James Corby. In order to balance the
workload of the MAU, Laboratory management further proposed that the
explosives residue program, then comprising two special agent examiners
(Frederic Whitehurst and Steven Burmeister) and two support technicians
(Monica Knuckles and Kelly Hargadon Mount), be moved from the MAU to
the Chemistry-Toxicology Unit (CTU) under Unit Chief Roger Martz.

In a June 14, 1994, memorandum, SAS Chief James Kearney announced the
transfer of the explosives residue program to the CTU. Kearney further
announced, apparently for the first time, that Whitehurst would remain in the
MAU and that the CTU would qualify a second explosives residue examiner.
Kearney added that Whitehurst would continue to be involved in the area of
explosive residue analysis, however, his duties will be focused primarily on
research studies and the training/qualifying of new examiners. Kearney noted
that Whitehurst also would continue to manage the Explosive Analysis
Database Program, at least temporarily.

Subsequently, in late-1994, MAU examiner SSA Richard Buechele, the
Laboratory's primary paint and polymer examiner, announced his departure for
a field assignment. Corby assigned Whitehurst to conduct examinations of

paints, polymers, plastics, cosmetics, adhesives and tapes in view of Buechele's
departure.

2. Analysis

The evidence does not support Whitehurst's claim that the FBI sought to punish
him by moving the explosives residue program from the MAU to the CTU, by
keeping Whitehurst in the MAU, or by reassigning Whitehurst to the paints and
polymers program within the MAU.

Substantial evidence shows that SAS Chief James Kearney was responsible for
the decision to move the explosives residue program while keeping Whitehurst
in the MAU. Kearney told us that he personally made these decisions after
consulting with MAU Unit Chief James Corby. Laboratory Director John
Hicks, confirmed that Kearney made the decision to reassign Whitehurst. Our
investigation also showed that MAU Chief Corby made the decision to assign
Whitehurst to paints and polymers.
Because these decisions were based on different considerations, we analyze
these decisions separately in the following sections.

a. Movement of the
Explosives Residue
Program

The decision to move the explosives residue program to the CTU was unrelated
to Whitehurst.

SAS management announced its plan to move the explosives residue program
to the CTU in the November 1993 report, Mandated Personnel Reductions and
Organizational Restructuring. According to that plan, one of the purposes of

this move was to assist in balancing the workload of the MAU and CTU
following the merger of the EMAU into the MAU in early-1994. Our
investigation shows that absent the movement of the explosives residue
program to the CTU, the proposed merger would have resulted in a sizable
difference in staffing between the MAU and CTU. Specifically, in fiscal year
1994, the MAU would have had a total of 24 special agent and support
personnel and the CTU would have had a total of 14 special agent and support
personnel. With the movement of the explosives residue program, staffing
levels in the MAU and CTU were established at 20 and 18 persons,
respectively.

Additionally, with the merger of the MAU and EMAU, the Unit Chief of the
MAU gained a sizable increase in the areas of case responsibility:

BEFORE MERGER

CTU

MAU

EMAU

Toxicology

Explosives Residue

Gunshot Residue

Arson

Paints

Bullet Lead Analysis

Inks and Dyes

Plastics

Shot Lead Analysis

General Chemical
Analysis

Adhesives

Precious Metals

Pharmaceuticals

Cosmetics

Nuclear Matters

Petroleum Products

Soils

Metals

Product Tampering

Glass

Fractures

Building Materials

Markings

Safe Insulation

Scanning Electron
Microscopy

Gemstones

National Automotive
Paint File

AFTER MERGER

CTU

MAU

Toxicology

Explosives Residue (limited)

Arson

Paints

Inks and Dyes

Plastics

General Chemical Analysis

Adhesives

Pharmaceuticals

Cosmetics

Petroleum Products

Soils

Product Tampering

Glass

Explosives Residue

Building Materials

Safe Insulation

Gemstones

National Automotive Paint File

Gunshot Residue

Bullet Lead Analysis

Shot Lead Analysis

Precious Metals

Nuclear Matters

Metals

Fractures

Markings

Scanning Electron Microscopy

Given this disparity in the areas covered by the CTU and MAU, it was not
unreasonable to attempt to balance the size and responsibilities of the units by
moving explosives residue cases to the CTU.

Another stated purpose for moving the explosives residue program was to bring
the entire explosive residue examination process under the supervision of a
single Unit Chief . . . [to] provide for a more effective and efficient
examination process and use of personnel. Before the move, the MAU and
CTU shared responsibility for explosives residue analysis in an arrangement
that had drawn criticism from Whitehurst and others. Since the 1980s, the CTU
had analyzed unconsumed smokeless powders and performed GC/MS analysis
of various substances for other units, including the MAU. Because the protocol
followed by the CTU in analyzing smokeless powders was less comprehensive
than the explosive residue protocol used in the MAU, Corby and Burmeister
each observed that if the CTU alone analyzed smokeless powder cases, certain
substances might not be identified. This concern supported the combination of
these functions under a single Unit Chief.

Despite the efficiencies achieved by placing explosives residue analysis under
one unit chief, both Corby and Burmeister told us that they opposed moving the
program to the CTU because Unit Chief Roger Martz did not have the
background to supervise the program. We have little doubt that MAU Unit
Chief Corby was more qualified by experience to supervise the explosives
residue program. However, Corby planned to retire in 1995, and as Burmeister
acknowledged, the Laboratory needed to find another supervisor for the
program. We also note that Burmeister told us in late-December 1995, that the
movement of the explosives residue program to the CTU was working.

Given the foregoing, we cannot say that the decision to move the explosives
residue program to the CTU suggested a retaliatory purpose. Additionally,
Kearney maintained that he did not intend to retaliate against Whitehurst when
he decided to move the explosives residue program to the CTU. Likewise,

Corby told us that after discussing the matter with Kearney, he did not think
that Kearney decided to move the program to punish Whitehurst. The fact that
the initial proposal to transfer the explosives residue program contemplated that
Whitehurst would be transferred further undercuts the suggestion that the
proposal was designed to punish Whitehurst.

b. Removal of
Whitehurst from the
Explosives Residue
Program

Our investigation also shows that Kearney did not seek to punish Whitehurst by
transferring him out of the explosives residue program.

Kearney told us that he made the decision to move Whitehurst because of
extremely poor working relationship between Whitehurst and other personnel
and units, especially the Explosives Unit. According to Kearney, these
deteriorated relationships had rendered Whitehurst somewhat ineffective.
Kearney further stated that he sought to eliminate friction that had developed
between Whitehurst and his support personnel working with him, especially
chemists Kelly Hargadon Mount and Mary Tungol. Kearney noted that he
explained his reasons to Whitehurst on more than one occasion. Kearney told
us that during these discussions Whitehurst agreed with Kearney's assessment
that he had become somewhat ineffective and expressed relief to be out from
under the pressure of these circumstances. According to Kearney, Whitehurst
further agreed to let things cool off until he could re-build his credibility with
the other Laboratory personnel.

Whitehurst confirmed that significant discord existed between him and others
within the Laboratory. Whitehurst stated that a virtual war existed between
himself and Explosives Unit examiners because he had stood up to these
examiners. Whitehurst also confirmed that he and Kearney discussed his
inability to deal with examiners in the Explosives Unit and co-workers Tungol
and Mount. Whitehurst also wrote a series of memoranda to Kearney

documenting his difficulties with his co-workers in the MAU. Whitehurst
acknowledged that at some point, Kearney determined that he had to settle this
war down. Whitehurst acknowledged that he never told Kearney that he viewed
his removal from the explosive residue program as retaliation. Rather,
according to Whitehurst, he told Kearney that he hated to leave explosives, but
was willing to go through that wall if ordered to do so. Furthermore,
Whitehurst told us that he advised Kearney that he was relieved to be out from
under the pressure of the situation.

Others within the Laboratory agreed that Kearney made the decision to remove
Whitehurst from the program based on problems between Whitehurst and coworkers, and not to punish him for raising allegations. Corby told us that the
conflict between Whitehurst and Explosives Unit personnel had progressed to
the point where each side was reluctant even to speak to one another. Corby
stated that Kearney sought to diffuse this conflict by removing Whitehurst.
Corby stated that he did not believe that Kearney acted to punish Whitehurst.
According to Corby, Whitehurst's relationship with Explosives Unit personnel
was a problem area that a manager has to deal with and the best way to do that
would be to take Fred, at least temporarily, off explosive cases but I disagree
with Fred's statement that it was done for -- you know, just to demote him or to
punish him. Corby only took issue with the abrupt manner in which Kearney
acted. Corby also observed that transferring Whitehurst to the CTU was
problematic because of personal and professional differences between
Whitehurst and CTU Unit Chief Roger Martz.

Likewise, former Laboratory Director Hicks noted that Whitehurst had
difficulty getting along with almost everyone and that one of the considerations
for moving Whitehurst may have been his conflicts with the Explosives Unit.
Hicks reported that the reassignment was not an attempt to silence Whitehurst.

To be sure, not all of Whitehurst's co-workers agreed with the decision to move
Whitehurst out of the explosives residue program. Burmeister said that he saw
no logic in the decision to move Whitehurst because Whitehurst was the
foremost expert in explosives residue. He believed that the decision to move
Whitehurst was some sort of punishment for raising issues about the
Laboratory. Still, Burmeister acknowledged that he had no proof that FBI acted

to retaliate against Whitehurst. Indeed, Burmeister was not aware of who made
the decision to move Whitehurst; nor was he aware of the official reason for the
transfer of Whitehurst. Burmeister also acknowledged that the personality
conflict between Whitehurst and Martz made it problematic for Whitehurst to
transfer to Martz's unit.

In view of this record, we conclude that Kearney did not seek to punish
Whitehurst by removing him from the explosives residue program. Kearney's
decision to move Whitehurst was designed to address specific interpersonal
difficulties between Whitehurst and individuals inside and outside of the
explosives residue program. We also find that in reaching the decision to
reassign Whitehurst, Kearney considered the fact that Whitehurst expressed a
willingness to be reassigned and relief at the prospect of reassignment.

c. Assignment to Paints
and Polymers Analysis

Finally, we conclude that Whitehurst's transfer to the paints and polymers
program was not in reprisal for making allegations about the Laboratory.

Corby told us that he personally made the decision to reassign Whitehurst to
the paints and polymers program. Kearney confirmed that Corby made this
decision without any discussion with Kearney. According to Corby, the
Laboratory's primary paint and polymer examiner, SSA Richard Buechele, had
announced his departure for a field assignment. Corby stated that because
Whitehurst had the appropriate chemistry background for that position, Corby
decided to assign Whitehurst to begin training in that program. Corby added
that even before the explosives residue program moved to the CTU, Whitehurst
had expressed interest in the paints and polymers and environmental programs.
Corby also stated that Whitehurst did not suffer any demotion in terms of title
or pay grade as a result of his movement within the MAU.

Corby told us that he did not intend to punish Whitehurst by assigning him to
the paints and polymer program. Notably, Whitehurst also told us that he did
not think that Corby acted with retaliatory intent. Under the circumstances, we
find no evidence of any retaliatory motive on Corby's part.
For all these reasons, we conclude that the evidence does not support
Whitehurst's claim that the FBI transferred him to the paints and polymers
program to punish him for making allegations about the Laboratory.
G. Other Evidence of Retaliatory Intent

In support of his claims of retaliation, Whitehurst reported the following
anecdotal evidence of the FBI's retaliatory atmosphere:

Whitehurst claims that Section Chief James Kearney told him, Fred, you may
be right about Rudolph, but if you pursue this matter you will destroy yourself,
your career and your family. Is it worth it? Kearney told us that he did not
make this statement exactly as Whitehurst presented it. Kearney stated that he
did not recall his exact words, but did tell Whitehurst that it was not healthy to
constantly dwell on the Rudolph matter. Kearney denied any intention to
threaten Whitehurst, and stated that he was not attempting to deliver a message
from FBI management. Kearney's statement, as recalled by either Whitehurst or
Kearney, does not warrant the conclusion that Kearney harbored an intent to
retaliate against Whitehurst.

Whitehurst also reports that Explosives Unit examiner Rick Hahn threatened
him by stating, We'll replace you with a bright high school kid, in order to
pressure Whitehurst to report certain results sought by Hahn. We have
addressed this allegation in the section of this Report relating to the Norfolk
case, where we concluded that we could not substantiate this allegation that
Hahn threatened or tried to pressure Whitehurst. See Part Three, Section H2.

Whitehurst also charges that Explosives Unit Chief J. Thomas Thurman
threatened him in early-1995. According to Whitehurst, Thurman told

Burmeister that if Whitehurst continued to raise issues about Martz in the
VANPAC matter, Director Freeh was going to fire Whitehurst. Burmeister
generally recalled this conversation with Thurman. However, Burmeister did
not think that Thurman intended to communicate a threat from Director Freeh
to Whitehurst. Director Freeh also denied making such a statement. We think
that Thurman was expressing his own personal opinion and was not
communicating a threat by Thurman or FBI management.

Whitehurst charges that someone chastised James Mudd, Quality Assurance
Chief at the Forensic Science Research Center, for telling attorneys with the
FBI OGC that the FBI Laboratory was not ready for accreditation. Mudd told
us that he expressed this opinion to FBI OGC attorneys, Stephen Robinson and
John Sylvester. Mudd denied that anyone from the OGC or FBI management
later retaliated against him for expressing this opinion. Mudd recalled that
Barry Mones, chairman of the Laboratory accreditation committee, learned of
his conversation with the OGC attorneys and telephoned Mudd to express
disagreement. However, Mudd did not consider Mones' telephone call to be
retaliatory.

Whitehurst also claims that MAU examiner Christopher Fiedler said he was
reluctant to criticize the Laboratory management because he and his friends had
families to feed. Fiedler told us that he does not recall saying this to
Whitehurst. Fiedler added that he has not refrained from making allegations
because he thought his career might be jeopardized. Fiedler recalled that during
one conversation with Whitehurst, Whitehurst expressed concern that he was
the only person coming forward with allegations about the FBI. According to
Fiedler, he may have responded that perhaps others are afraid to raise issues
because they have families to feed, or they are close to retirement, among other
reasons. Fiedler stated that he was only trying to provide Whitehurst with
general reasons why someone might not raise issues. Fiedler stated that he has
no personal knowledge of anyone who has failed to raise issues because they
feared retaliation.
Whitehurst further claims that Vickie Casso, a co-worker of Cheryl Whitehurst,
stated that she was proud of the Whitehursts, but feared coming forward herself
because she might lose her home and job. Casso told us that she generally
recalled the conversation with Cheryl Whitehurst. Casso stated that she never
told Cheryl Whitehurst that she had any allegations to raise but feared coming

forward with them. Casso said that she may have told Cheryl Whitehurst that if
she were in the Whitehurst's position, she would be reluctant to pursue their
allegations because of the expense involved and thus the possibility of losing
personal possessions such as her home. Casso observed that it requires lawyers
and money to pursue such allegations. Casso added that she had raised issues to
management in the past and does not feel that she experienced retaliation for
any reason.

According to Whitehurst, Fran Henning of the Serology Unit knew that agents
were padding their work hours, but refused to come forward because, according
to Whitehurst, she would just lose. Henning, who has since retired, told us that
she was the secretary to the SAS Chief between 1959 and 1970. She reported to
us that during that time, she suspected that agents were padding their hours, but
did not report this activity because it was only her impression. She denied that
she had been afraid to report the allegations because of possible retaliation.

Finally, Whitehurst contends that the FBI Laboratory management transferred
DNA examiner Greg Parsons to a research position because he refused to
testify based on a flawed DNA protocol. Parsons told us that prior to December
1990, he disagreed with most of his colleagues in the DNA Unit regarding the
interpretation of unevenly migrated DNA in autoradiographs, an effect known
as band shifting. When he could not resolve his concerns, he asked to be
transferred to the MAU, but Laboratory Director Hicks insisted that he continue
to work in the DNA Unit. Parsons told us that although he never discussed this
matter with Hicks, he thought Hicks was being vindictive and just wanted to
get his way by keeping Parsons in the DNA Unit. Parsons stated that he did not
think that the decision not to transfer him was related to his concerns about the
DNA protocol. Parsons told us that he later transferred to the FSRU to work on
the next generation of DNA analysis. Parsons said that he did not consider the
transfer to be punishment and was relatively happy about the transfer.

In sum, the anecdotal evidence cited by Whitehurst did not support his
assertion that there was an atmosphere of retaliation at the FBI Laboratory.

III. Conclusion

In sum, we find no factual basis to believe that Whitehurst suffered retaliation
for raising concerns about the Laboratory. With respect to most of Whitehurst's
claims, the circumstances supported the decisions by the FBI management, and
we could discern no retaliatory purpose behind those decisions. Certainly,
Whitehurst disagreed with many of these decisions, but the fact that Whitehurst
endorsed a different approach than adopted by FBI management does not in
and of itself support a conclusion that management acted with wrongful
purpose.

We were not able to reach a final conclusion concerning Whitehurst's claim
that the FBI sought to punish him by forcing him to undergo psychiatric
evaluation. Despite our requests, Whitehurst failed to provide a medical release
so that we could interview key personnel in the Health Care Program Unit and
Employee Assistance Program. Without their statements, we were not in a
position to reach a definite conclusion concerning this claim.

#####

PART FIVE: FINDINGS AND RECOMMENDATIONS CONCERNING
INDIVIDUALS

This part summarizes the OIG's findings and recommendations with respect to
various individuals, including Whitehurst and those he has accused of
misconduct or other impropriety. Our recommendations reflect the analysis and
conclusions presented earlier in this Report, and the different parts of the report
should be read together. Moreover, our recommendations are based solely upon
facts found in this investigation. Any disciplinary action or other personnel
decisions resulting from these recommendations may properly take into
account other factors relating to the person's employment history and record.
We further understand that the Brady review team within the Criminal Division
of the United States Department of Justice will review these findings and
recommendations to determine what disclosure should be made in particular
cases.

Section I of this part addresses persons who have been the subject of
Whitehurst's most serious allegations, including that certain examiners have
fabricated evidence, perjured themselves, or otherwise engaged in misconduct.
In this section, we also discuss other individuals whose conduct we think merits
critical comment. Section II addresses the conduct of particular Laboratory
managers. The third section of this part discusses, in alphabetical order, other
persons who were named in allegations by Whitehurst. Section IV briefly
summarizes our findings concerning allegations made by Whitehurst that
individuals in the FBI Office of Professional Responsibility (FBI OPR) or the
FBI Office of General Counsel (OGC) either failed properly to investigate
certain allegations made by Whitehurst or have engaged in retaliation against
him. Section V concludes this part with our findings and recommendations
regarding Whitehurst.

Before turning to our discussion of particular individuals, we comment briefly
on an allegation that persons other than Whitehurst raised during our
investigation concerning alcohol consumption by examiners in the Explosives
Unit. We questioned several witnesses about this matter. Some persons recalled

that alcoholic beverages had been available during holiday office parties within
the EU, but this practice ceased as result of directives imposed after Mr. Freeh
became the FBI Director. Others recalled that examiners had consumed
alcoholic beverages with meals or after hours. We did not identify any
particular instance where an EU examiner was drinking while on duty or an
examiner's work performance was impaired because of consumption of alcohol.

I.Individuals Central to Whitehurst's Allegations or Whose Conduct is
Criticized in this Report

This section begins with a discussion of Terry Rudolph, followed by our
findings concerning CTU Chief Roger Martz, EU Chief J. Thomas Thurman,
and EU examiner David Williams. The remainder of this section discusses
other individuals in alphabetical order.

A.Terry Rudolph

Terry Rudolph worked as an explosives residue examiner in the Laboratory
from 1979 until 1988, when he began teaching at the FBI Academy in
Quantico, Virginia.

As we explained in Part Three, Sections A and H9, we conclude that Terry
Rudolph failed to conduct appropriate scientific analyses or to adequately
document his work in the Psinakis case, in the UNABOM investigation, and in
a substantial number of other cases in which he performed examinations while
working in the Laboratory. The fact that unit chiefs approved conclusions
reached by Rudolph or gave him favorable performance reviews does not
excuse the shortcomings we noted in our investigation; instead, it suggests that
the Laboratory failed appropriately to supervise Rudolph. The Laboratory did
not adequately discipline him in 1992 when he was orally admonished for the
condition of his files. Rudolph should then have been more severely

disciplined. A notation concerning this Report's findings should be placed in
each case file in which Rudolph was the principal or auxiliary examiner.

In light of Rudolph's performance and his views about how analyses should be
performed and case work documented, we conclude that Rudolph should not be
teaching others about forensic science. If Rudolph were still in the Laboratory
Division, we would recommend his removal from that Division. Rudolph has
retired from the FBI, but we understand he later did some work at Quantico on
a contractual basis. We recommend that the FBI not employ Rudolph in any
capacity in the future.

B.Roger Martz

Roger Martz became an examiner in the CTU in 1980 and has been the chief of
the CTU since July 1989. Based on our investigation, we criticize certain of
Martz's actions both as a supervisor and as an examiner in particular cases.

In 1989, Martz as the CTU Chief reported the results of his review of 95 of
Rudolph's cases in a manner that misleadingly suggested that Martz had
reviewed the technical sufficiency of Rudolph's work and found it adequate and
that he also approved Rudolph's work in Psinakis. As noted in Part Three,
Section A, Martz conducted his review after former MAU Chief Jerry Butler
had found numerous administrative shortcomings in a preliminary review and
had recommended an in-depth review because of the serious impact these
weaknesses could have on the administration of justice.

Martz reviewed 95 of Rudolph's cases and described his findings in a
memorandum which referred to Butler's earlier review. In the memorandum,
Martz characterized his review as a technical review, stated that the analyses
were sufficient and that no technical errors had been found in the final reports,
and noted that while other techniques could have been employed, it is believed
that no changes would be made in the reporting of the reviewed cases. Martz

recommended that no further technical reviews be performed of Rudolph's
work.

The language in Martz's memorandum was misleading. Martz stated in the
memorandum that the analyses were sufficient, yet he admitted to the OIG in
this investigation that he had not reviewed whether Rudolph's work was
analytically sufficient to support the stated conclusions. Indeed, Martz
acknowledged to us that in some case files there was little or no documentation
to review. Given the limited review that Martz conducted and the fact that
Butler had already identified the need for an in-depth review, Martz could not
properly conclude and should not have recommended that no further review be
conducted.

Problems with the adequacy of his review are partly attributable to the fact that
SAS Chief Kenneth Nimmich did not give Martz written instructions
concerning the objective or methodology of the review. Nonetheless, whatever
instructions he received, Martz worded his memorandum in a misleading way
that obscured serious deficiencies in Rudolph's work. Nimmich erroneously
relied on Martz's memorandum in concluding in 1989 that a further review of
Rudolph's work was unnecessary. Martz's misleading wording thus contributed
to the Laboratory's failure to adequately review and resolve the allegations
about Rudolph. As a supervisor, Martz should have recognized the seriousness
of the concerns noted in Butler's memorandum and the need for them to be
adequately addressed.

In the Trepal case, discussed in Part Three, Section H13, we found that Martz
overstated the significance of his analytical results by testifying he had
concluded thallium nitrate had been added to three samples of Coca-Cola
identified as Q1, Q2, and Q3. Given the tests that Martz actually performed, he
could have properly stated in his dictation and testimony that two samples of
Coca-Cola, identified as Q1 and Q2, were consistent with thallium nitrate
having been added to them. Alternatively, he correctly could have observed
that Q1 and Q2 had elevated levels of thallium and nitrate ions as compared to
unadulterated Coca-Cola. He did not limit his testimony this way.

Martz's work in the Trepal case was deficient in several respects: (1) his
dictation stated that the nitrate ion was identified in samples Q1 through Q3
and those samples were consistent with thallium nitrate having been added to
them; this was incorrect insofar as he had not performed tests necessary to
reach these conclusions with regard to Q3; (2) Martz did not acknowledge
certain data obtained from the tests he performed; (3) he failed to perform
additional tests that were appropriate under the circumstances; (4) in testifying,
Martz improperly offered a stronger opinion about the identification of thallium
nitrate than he had expressed in the dictation reviewed by his supervisor and
included in the Laboratory report; (5) Martz did not adequately document his
work, his cases notes were incomplete, undated and inaccurate, and the charts
were not accurately or clearly labeled; (6) he lacked a sufficient analytical basis
to opine that a bottle containing thallium nitrate found in Trepal's garage,
identified as Q206, contained no other drug residues ; (7) he also gave an
unsupported opinion about the purity of the thallium nitrate in Q206; and (8)
Martz in his deposition and trial testimony made various inaccurate,
incomplete, or unsupported statements.

In the World Trade case, as discussed in Part Three, Section C, Martz as the
chief of the CTU approved Lynn Lasswell's conclusion that mass spectrometry
(MS) had identified urea nitrate on certain evidence, when the results in fact
merely established the presence of urea and nitrate ions. Martz was reluctant to
acknowledge the limitations of the MS data. Initially in his OIG interview,
Martz persisted in asserting that the results identified urea nitrate. After being
further challenged by the OIG investigative team and reflecting overnight,
Martz acknowledged that the MS analysis could not, by itself, identify the
substance.

In reporting conclusions of his 1989 review of Rudolph's cases, in his defense
of Lasswell's interpretation of the MS results in the World Trade case, and in
his work in Trepal, Martz appeared to have a lower threshold of scientific proof
than is generally accepted in forensic science and to lack appropriate scientific
rigor in his approach to examinations. A forensic scientist, especially one in a
supervisory position, should be conservative in forming conclusions and
willing to consider possible limitations in the analyses. Martz instead has
sometimes formed conclusions without acknowledging legitimate questions
about their validity.

Both as an examiner and as a unit chief, Martz appears not to have recognized
the importance of protocols in forensic examinations. After the explosives
residue program was transferred to the CTU from the MAU in 1994, Martz as
CTU chief failed to integrate the protocols that had been previously used by the
two units. This meant, as was illustrated in the Shaw case, discussed in Part
Three, Section H7, that the analysis of certain evidence could vary depending
on the examiner assigned to the case. As noted in Part Three, Section G, in the
Oklahoma City case, Martz did not follow the FBI's explosives residue protocol
when he failed to examine certain evidence microscopically. Martz told the
OIG that a protocol is a guideline and that examiners should have discretion in
determining the procedures to apply in a particular case. Based on his conduct
and remarks, Martz does not seem to appreciate the importance of following
authorized protocols or the need to document the reasons for departing from
them.

We find that Martz did not perjure himself or improperly circumvent or violate
Laboratory protocols in the VANPAC case, as was alleged by Whitehurst. As
noted in Part Three, Section B, Martz should have testified more clearly in that
case about his inability to determine if smokeless powder samples came from
the same batch. Martz was asked if he had compared smokeless powder from
the mail bombs to powder from a gun shop where the defendant allegedly had
bought powder before the bombings. Martz ambiguously stated that he had not
been able to successfully compare the powders, and only when questioned
further on cross-examination did he say that he could not determine from his
comparisons if the powders came from the same batch. Martz should have
stated clearly that he had compared certain samples, had found differences and
similarities, but could not determine from the data if the powders came from
the same batch.

As discussed in Part Three, Section F, we also conclude that Martz did not
perjure himself, give misleading testimony, or improperly erase digital data in
the Simpson case. Martz undermined his credibility by his poor choice of
words in stating that he had decided to be more truthful in his testimony and by
agreeing with defense counsel that he had destroyed certain data. By his lack of
adequate preparation, his deficient record-keeping and note-taking practices,

and certain aspects of his demeanor at trial, Martz did not serve the Laboratory
well in that case.

Based on our investigation, we conclude that Roger Martz lacks the credibility
and judgment that are essential for a unit chief, particularly one who should be
substantively evaluating a range of forensic disciplines. We found Martz
lacking in credibility because, in matters we have discussed above, he failed to
perform adequate analyses to support his conclusions and he did not accurately
or persuasively describe his work. We recommend that Martz not hold a
supervisory position. The Laboratory should evaluate whether he should
continue to serve as an examiner or whether he would better serve the FBI in a
position outside the Laboratory. If Martz continues to work as an examiner, we
suggest that he be supervised by a scientist qualified to review his work
substantively and that he be counseled on the importance of testifying directly,
clearly and objectively, on the role of protocols in the Laboratory's forensic
work, and on the need for adequate case documentation. Finally, we
recommend that another qualified examiner review any analytical work by
Martz that is to be used as a basis for future testimony.

C.J. Thomas Thurman

J. Thomas Thurman has worked as an examiner in the Explosives Unit (EU)
since 1982, and he became chief of that unit in December 1994.

Whitehurst has alleged that Thurman improperly altered dictation that
Whitehurst prepared as an auxiliary examiner. Contrary to the unwritten policy
in the Laboratory, Thurman from 1987 through 1992 prepared several reports
that failed to incorporate verbatim the dictation Whitehurst prepared as an
auxiliary examiner. As described in Part Three, Section H10, Thurman's reports
contained certain inaccuracies or ambiguities as a result of the changes he made
to the dictation. We also concluded that he should have revised his report in the
case concerning an attempted bombing at the William Wirt Middle School after
examiner Steven Burmeister questioned certain conclusions.

We do not conclude that Thurman intended to write his reports with a
prosecutorial bias, although the effect of his overstating AE conclusions in
certain reports was favorable to the prosecution, or that he engaged in willful
misconduct in this respect. We also acknowledge that J. Christopher Ronay, the
unit chief for the EU from 1987 through October 1994, approved reports by
Thurman and other EU examiners that did not incorporate auxiliary examiner
dictation verbatim. Thurman should, however, have recognized the potential
problems posed by his actions and should have at least obtained the auxiliary
examiner's approval before modifying language in the dictation.

After Thurman became unit chief of the EU in 1994, he incorrectly approved
certain conclusions that examiner David Williams included in a report in the
Oklahoma City case. Specifically, Thurman should not have approved
Williams' conclusions that the VOD of the explosive used was 13,000 feet per
second; that the explosion was caused by approximately 4,000 pounds of
ANFO; that the initiator for the booster was either a detonator from a Primadet
Delay system or sensitized detonating cord; that the initiator was a non-electric
detonator; and that the time delay was 2 minutes, 15 seconds. For reasons set
forth in Part Three, Section G, these conclusions were more specific or definite
than could be validly supported. Thurman also should have directed Williams
to rewrite the internally inconsistent statement that [t]races of PETN were
located on specimen Q18, however could not be confirmed. Based on
Thurman's OIG interview, we find that he did not sufficiently review the
substantive validity of the conclusions stated in the report, but instead
inappropriately deferred to Williams.

Thurman, as EU Chief, should have taken further steps to address concerns
voiced by FBI metallurgist William Tobin that EU examiners were incorrectly
describing metal wire in their reports. As noted in Part Three, Section H12,
Tobin contends that EU examiners have not followed the industry standard for
reporting gauge based on the total cross-sectional area of a multi-strand wire,
and instead have reported the gauge of individual strands. Tobin has noted that
if the gauge is described this way in reports it may be misunderstood. In light of
Tobin's concerns, Thurman should have issued an appropriate directive to EU
examiners so they understood the industry practice and reported their findings
in a clearly understandable manner.

We conclude that Thurman did not perjure himself, fabricate evidence,
improperly testify outside his expertise, or improperly circumvent FBI
Laboratory procedures in the VANPAC case as was alleged by Whitehurst. We
did find that Thurman inaccurately testified on two minor points: while he
correctly stated that there had been no DNA match to the defendant, Thurman
erred in saying that DNA analysis is based on an enzyme in saliva; and he
incorrectly distinguished high and low explosives by referring to the speed of
the explosive shock wave.

Whitehurst also alleged that in the Kikumura case, discussed in Part Three,
Section H1, Thurman testified falsely, misled the jury, gave biased or
speculative testimony, and violated FBI policies or procedures. We do not find
that Thurman testified falsely in this case, which involved a sentencing hearing
rather than a jury trial. Nor do we find that his testimony was improperly biased
or speculative. Thurman did testify inaccurately or ambiguously on four points:
the type of fireball that would result from the bombs; the common use of
mercury fulminate in blasting caps; the direction in which the bombs would
have released their lead shot contents; and the distinction between high and low
explosives. The inaccuracies or ambiguities in Thurman's testimony that we
noted in the VANPAC and Kikumura cases represent performance issues of the
sort that are best addressed through an effective program of testimony
monitoring.

In evaluating Thurman's conduct as a manager, we recognize that he did not
become the unit chief of the EU until December 1994. We also note that he
apparently has supported the development of protocols, training programs, and
other quality assurance measures for the EU. In his interview with the OIG,
Thurman seemed sincere in stating his desire to improve his unit and to learn
from the experience of other forensic laboratories in the explosives field.

Given our recommendation that the EU be restructured so that its unit chief and
examiners have scientific backgrounds, we conclude that when the
restructuring is accomplished, Thurman should be reassigned to a component
of the FBI outside the Laboratory. In the interim, the Laboratory should assess,

given the findings in this Report, whether Thurman should continue to occupy
a supervisory position. While Thurman remains unit chief, the SAS Chief
should monitor his work, and Thurman should be counseled to substantively
review all reports issued by the EU and to enlist the assistance of other
qualified examiners if necessary to assure that the conclusions stated by EU
examiners have a reasonable scientific basis. Consistent with our general
recommendations concerning peer review and report preparation as discussed
in Part Six, any reports that Thurman prepares himself should be reviewed by
another qualified examiner.

D.David Williams

David Williams has worked as an examiner in the EU since 1987.

In Part Three, Section C, of this Report, we discuss at length the testimony by
Williams in the Salemeh trial related to the World Trade Center bombing. As
noted in that section, we conclude that Williams in testifying failed to display
the objectivity, competence, and credibility that should be expected of
examiners from the FBI Laboratory. Most egregiously, Williams gave a
scientifically unsupportable opinion, based on speculation beyond his scientific
expertise, in stating that the main charge was urea nitrate. That opinion was
improperly based on information linking the defendants to urea nitrate that was
not related to any scientific analyses of the bomb scene.

In the Salemeh trial, Williams also testified inaccurately about his role in the
Laboratory's manufacturing of urea nitrate and about the use of Arabic
formulas associated with the defendants to manufacture the sample; he testified
outside his expertise about the defendants' capacity to make urea nitrate and did
so in a way that appears intended to reach the most incriminating result; he
gave incomplete testimony about the VOD of urea nitrate; he gave a
scientifically unsupportable opinion about the VOD of the main charge in the
bombing; and he gave misleading testimony about his attempt to modify
dictation authored by Whitehurst.

We also found significant problems with a report Williams prepared in the
Oklahoma City bombing case. As explained in Part Three, Section G, we
conclude that in his report, Williams repeatedly reached conclusions that
incriminated the defendants without a scientific basis and that were not
explained in the body of the report. Williams here opined that a particular
explosive -- ANFO -- was the main charge by again improperly speculating
from information that linked the defendants to that explosive but that was not
relevant to his scientific analysis of the evidence. We criticized other
conclusions that Williams reached. He concluded that the VOD of the
explosive used was 13,000 feet per second; that the explosion was caused by
approximately 4,000 pounds of ANFO; that the initiator for the booster was
either a detonator from a Primadet Delay system or sensitized detonating cord;
that the initiator was a non-electric detonator; and that the time delay was 2
minutes, 15 seconds. These conclusions were more specific or definite than
could be reasonably supported by his examination of the evidence.

We also found that Williams erred in the Oklahoma City case by failing to
incorporate AE dictation verbatim into a report and instead including an
internally inconsistent statement. With regard to sample Q18, Steven
Burmeister prepared dictation noting that instrumental analysis was consistent
with the presence of . . . PETN and that [t]he presence of PETN . . . could not
be confirmed. Williams paraphrased Burmeister's dictation by noting, [t]races
of PETN were located on specimen Q18, however could not be confirmed.
Williams claims that Burmeister approved this language. In any event,
Williams should have recognized the internal inconsistency in the sentence and
should not have included it in his report.

With regard to the Ghost Shadow case described in Part Three, Section H8,
Whitehurst alleged that Williams improperly presented an expert opinion
concerning the main charge of an improvised explosive device. Whitehurst
further alleged that Williams gave opinions for which he lacked qualifications
or analytical support and that he fabricated evidence. The facts do not support
these allegations. Williams completed a Laboratory report on June 14, 1995,
that described the results of certain examinations and noted that additional
examinations were continuing. A second report dated July 18, 1995, accurately
incorporated dictation by examiner Steven Burmeister describing the results of

the additional tests. With regard to the June 14, 1995, report, we conclude that
Williams did not fabricate evidence or state opinions for which he lacked
qualifications or support.

Based on our investigation, we conclude that Williams lacks the objectivity,
judgment, and scientific understanding that should be possessed by a
Laboratory examiner. We recommend that the FBI reassign him to a position
outside of the Laboratory Division. To the extent Williams is called upon to
testify in the future concerning reports or other work he did as an examiner, we
recommend that a qualified examiner review his proposed testimony and any
related reports in advance of trial. We further recommend that a qualified
examiner review any testimony after it is given to assure that Agent Williams
has limited his testimony to reasonably supportable conclusions.

E.Richard Hahn

Richard Hahn was an examiner in the EU from 1987 until early 1992, when he
transferred to the FBI's office in Long Beach, California.

As discussed in Part Three, Section E, we conclude that in the Avianca trials
Hahn did not commit perjury, fabricate evidence, or intend to mislead the court.
We also conclude that he erroneously testified in the first trial that no dynamite
could have caused the pitting and cratering on the aircraft, gave scientific
opinions correlating the pitting and cratering with a VOD range that were
unsound and not justified by his experience, erroneously failed to make
inquiries about the validity of his jetting theory before the second trial, gave
incomplete testimony concerning the MAU results, testified incorrectly and
outside his expertise concerning a fuel-air explosion, the injuries to passengers,
and other areas, and slightly overstated his experience.

Hahn is no longer working in the Laboratory. If in the future he is asked to
testify about his work as an examiner, we recommend that he be specifically

counseled about the importance of not testifying on matters outside of his
expertise. Such testimony should also be reviewed subsequently by
appropriately qualified examiners in the Laboratory to assure that he has
appropriately limited his testimony.

F.Robert Heckman

Robert Heckman has worked as an examiner in the EU since 1990.

As described in Part Three, Section H6, we found that in the Conlon case
Robert Heckman made improper additions to Whitehurst's dictation by adding
statements outside of his expertise to the section of the report designated
Instrumental Analysis. Heckman stated his personal opinion that the results of a
field test of explosives residue with an ion mobility spectrometer (IMS) may
well have been correct, despite the lack of confirmatory results when the
evidence was later examined in the Laboratory. Furthermore, Heckman erred
by including in the Instrumental Analysis section of the Laboratory report
statements that reflected his own opinion, rather than any work performed by
Whitehurst as the auxiliary examiner. While Heckman erred by adding these
statements to the Instrumental Analysis section of the report, we also
recognized that former EU Chief J. Christopher Ronay shared some
responsibility because he approved the report.

We also noted that Heckman stated his conclusion in a way that might be
misinterpreted. Because the contributing agency had asked if the explosive
could have been of military origin, Heckman concluded in the report that the
explosion was caused by a very brisant high explosive consistent with those
used by the military. Although this statement was not inaccurate, Heckman
later acknowledged in a deposition and our interview that the explosive could
have been of commercial origin. We suggested that to avoid any possible
misunderstanding, Heckman could have either limited his conclusion to a
finding of a very brisant high explosive, or, alternatively, noted that the
explosive could have been of military or commercial origin.

As explained in Part Three, Section H4, we do not find evidence supporting
Whitehurst's allegations that Heckman improperly testified outside his
expertise in the Borsellino case or that Heckman's testimony was unreliable
because he did not consider potential contamination of the evidence. Given the
particular circumstances of that case, including the Italian prosecutor's request
that Heckman testify as the representative of the Laboratory, Heckman was
permitted to report Whitehurst's findings while testifying at the trial before the
Italian magistrate. In the Borsellino case, Heckman did erroneously state that
Whitehurst had confirmed the presence of RDX, when in fact Whitehurst had
found residues consistent with RDX. This case illustrates that if examiners
describe analyses or conclusions made by other examiners, they must do so
accurately.

We do not think that Heckman engaged in willful misconduct in either the
Conlon or Borsellino cases. Conlon presents, in our judgment, a performance
issue that is best addressed through supervisory counseling and monitoring of
future report preparation. Similarly, the minor inaccuracy in Heckman's
Borsellino testimony is the sort of thing that can be addressed by adequate
monitoring of testimony.

G.Wallace Higgins

Wallace Higgins has worked as an examiner in the EU since 1989.

Whitehurst alleged that Higgins may have changed dictations that Whitehurst
prepared as an auxiliary examiner without Whitehurst's permission. As
described in Part Three, Section H11, we found that between 1991 and 1994,
Higgins prepared several reports that failed to incorporate verbatim the
dictations prepared by Whitehurst. In these laboratory reports, Higgins
misreported the number of specimens that Whitehurst had examined, omitted
important qualifying language from the dictations, eliminated Whitehurst's

forensic opinion altogether, changed Whitehurst's findings, or identified the
presence or absence of chemical compounds not identified by Whitehurst.

We had difficulty determining why Higgins made particular alterations.
Higgins was not helpful in this regard, because he generally maintained that he
did not recall the circumstances surrounding these changes. Furthermore,
Higgins insisted that he would not have changed the dictations without
authorization from Whitehurst. Higgins did indicate in some cases that he
thought that Whitehurst's dictations were speculative, repetitious, or strayed
into the EU's area of responsibility. Ronay also stated that a major issue in the
EU at this time was Whitehurst's tendency to express opinions concerning
possible alternative explanations for the presence of explosive residues. Ronay
believed that such opinions were outside of Whitehurst's area of expertise, and
accordingly Ronay did not consider the removal of such opinions to be a
substantive change. Ronay indicated that there may have been a time when he
authorized EU examiners to make non-substantive changes to Whitehurst's
reports without Whitehurst's authorization.

Given the foregoing, the evidence did not support the conclusion that Higgins
intentionally altered Whitehurst's reports to bias the dictations in favor of the
prosecution. Higgins, however, should have recognized the potential problems
posed by unauthorized changes to Whitehurst's dictations and obtained
Whitehurst's express approval before making such alterations. Ronay also bears
responsibility for the unauthorized changes to Whitehurst's dictations because
he approved Higgins' reports and fostered a permissive attitude toward changes
to Whitehurst's dictations.

In view of our recommendation that the EU be restructured so that its unit chief
and examiners have scientific backgrounds, we conclude that Higgins should
be reassigned to a component of the FBI outside the Laboratory. In the interim,
while Higgins remains in the EU, the SAS Chief should counsel Higgins on the
proper preparation of reports and monitor his work. A qualified explosives
examiner also should review any reports prepared by Higgins.

H.Alan R. Jordan

Alan R. Jordan was the EU examiner involved in the investigation of the
attempted assassination of former President George Bush in Kuwait in April
1993. Whitehurst suggested that someone may have misinterpreted his
analytical results to link the explosives involved in the attempted assassination
to other explosives found in devices known to be associated with Iraq. As
explained in Part Three, Section D of this Report, we did not find that Jordan or
any one else misstated Whitehurst's results comparing the explosives in the
Bush device and explosives linked to Iraq that were found in Southeast Asia.

Jordan prepared a report dated June 18, 1993, that incorporated dictation by
Whitehurst but did not restate it verbatim. This dictation did not concern the
Southeast Asia explosives, and Whitehurst never prepared dictation describing
his work on that material. Jordan should have included Whitehurst's dictation
verbatim. His changes do not, in our opinion, evidence any effort to misstate
Whitehurst's conclusions. Moreover, J. Christopher Ronay as his unit chief
allowed Jordan and other EU examiners to prepare reports that did not include
Whitehurst's dictation verbatim.

We do not find that Jordan improperly misstated results reached by Whitehurst
or otherwise engaged in misconduct in his work on the investigation of the
Bush assassination attempt.

Whitehurst also alleged that Jordan may have misstated Whitehurst's findings
in the Seijas case which concerned the attempted assassination of Miami
attorney Gino Negretti. As noted in Part Three, Section H5, we conclude that
Jordan did not misstate Whitehurst's results in this case.

We do not find any misconduct by Jordan with respect to those matters we
investigated and we do not recommend any action concerning him.

I.Michael Malone

Michael Malone worked as an examiner in the Hairs and Fibers Unit from 1974
until 1994, when he transferred out of the Laboratory. As described in Part
Three, Section H12, Malone in 1985 examined a purse that then United States
District Judge Alcee Hastings had introduced as an exhibit in his 1983 trial
related to an alleged bribery scheme. At his trial, Hastings had testified that he
had sought to have the purse repaired because its strap was broken. The purse
was later sent to the FBI Laboratory for examination in 1985, when a judicial
committee for the Judicial Council of the Eleventh Circuit Court of Appeals
was investigating allegations of misconduct by Hastings in connection with the
alleged bribery and other matters.

Malone examined the strap microscopically and found indications that it had
been deliberately cut. He also asked FBI metallurgist William Tobin to test the
strap with a tensile tester, a device that measures the force required to break an
object. Tobin did so and found that the strap broke at 29.5 pounds of force. As
part of the judicial committee's investigation, Malone testified before the
committee in October 1985 and again in April 1996.

Malone's 1985 testimony was incorrect and misleading in several respects.
First, Malone falsely stated that he had actually conducted the test himself. He
also opined, inaccurately, that the machine at 29.5 pounds would be pulling
much harder than Malone could pull himself. He further testified inaccurately
in stating that metal displays a sudden or instantaneous break, which Malone
distinguished from the break he observed in the purse strap. Finally, Malone
said that the 29.5 pounds figure was almost a meaningless figure other than it's
a lot more than an average person could exert. This statement is inaccurate both
in diminishing the significance of the tensile test results and asserting that the
identified force was a lot more than an average person could exert. These
various misstatements, as Tobin himself acknowledged, did not affect the
conclusion that the strap had been partially cut.

We also conclude that Malone was incorrect in telling the OIG as part of this
investigation that he in 1985 had told John Doar, the chief counsel for the
judicial committee, that Tobin had conducted the test. For reasons set forth in
Part Three, Section H12, we find that Doar did not know that Malone had not
performed the tensile test. Recognizing that we are reviewing events that
occurred more than ten years ago, and given the record before us, we cannot
conclude that Malone engaged in intentional misconduct by failing in 1985 to
tell Doar that Tobin had performed the test or by inaccurately describing to the
OIG his conversations with Doar before Malone testified.

Malone falsely testified before the judicial committee that he had himself
performed the tensile test and he also testified outside his expertise and
inaccurately concerning the test results. The FBI should assess what
disciplinary action is now appropriate and should monitor his testimony in
future cases to assure that Malone is accurate and testifies to matters within his
knowledge and competence.

J.J. Christopher Ronay

J. Christopher Ronay was the unit chief of the EU from 1987 through October
1994.

As chief of the EU, Ronay did not sufficiently review reports prepared by
examiners in his unit. Ronay told the OIG that he read the EU reports to check
their format, but he did not reexamine the evidence with regard to conclusions
reached by EU examiners and he did not always review the work notes, test
results, or the original dictation by other examiners. A specific example is
provided by the Conlon case, in which Ronay acknowledged to the OIG that he
would have questioned certain statements made by examiner Robert Heckman
if he had read the report more carefully. Former SAS Chief James Kearney told
the OIG that he had directed Ronay to review EU reports technically as well as
administratively but that Ronay had responded that he did not want to second
guess his examiners. In his review of EU reports, Ronay did not recognize the
importance of assuring that each examiner's conclusions are reviewed by

another qualified examiner to assure that the conclusions stated are
scientifically reasonable and supported by the data.

Ronay also erred by allowing EU examiners to revise auxiliary examiner
dictation when incorporating it into Laboratory reports. Ronay claimed that he
did this only where the changes did not, in his opinion, affect the substantive
results and he said he did not recall approving revisions to the dictation of any
examiner other than Whitehurst. By allowing the EU examiners unilaterally to
revise auxiliary examiner dictation, Ronay departed from the Laboratory's
unwritten rule that dictation would be incorporated verbatim unless the
examiner who provided the dictation approved changes. Ronay's actions have
created a serious problem for the Laboratory with those reports containing
language significantly different from that of the underlying dictation. The
examiner responsible for the dictation may not be able to support the language
used in the report, and the EU examiner may not be able to either since that
person did not perform the examinations or reach the conclusions described in
the dictation.

As discussed in Part Three, Section D, Whitehurst alleges that Ronay or
someone else may have misstated the results of Whitehurst's comparison of
explosives used in the 1993 assassination attempt of former President George
Bush and other explosives that had been found in Southeast Asia and linked to
Iraq. Whitehurst alleges that he told Ronay that the Bush explosive material
was different from the Southeast Asia explosives. Whitehurst did not prepare
any dictation regarding this comparison. We do not find evidence to support
Whitehurst's claims that Ronay or someone else misstated the results of
Whitehurst's comparison in order to link the Bush explosive device to known
Iraqi devices.

Ronay exhibited poor judgment as a manager when he approved EU reports
that did not incorporate auxiliary examiner dictation verbatim and, at least in
some instances, failed substantively to review the reports. Ronay should have
recognized that these actions had potentially detrimental effects and that the
alterations in auxiliary examiner dictation were contrary to unwritten, but
generally understood, practices in the Laboratory. Ronay retired from the FBI
in 1994, and we do not recommend any action by the FBI concerning him.

K.Robert Webb

Robert Webb worked as an examiner in the Materials Analysis Unit from 1976
through 1991, when he transferred out of the Laboratory. As is discussed in
Part Three, Section B, we conclude that, in the VANPAC case, Webb stated
conclusions about the common origin of certain tape, paint, sealant, and glue
more strongly than was justified by the results of his examinations and the
background data. We find that Webb did not attempt to fabricate evidence or to
present biased conclusions. As part of this investigation, we did not undertake a
general review of Webb's work in cases other than VANPAC. We recommend
that another qualified examiner review any analytical work by Webb that is to
be used as a basis for future testimony.

II.Laboratory Management

In this section we discuss several persons in managerial positions within the
Laboratory whose conduct either was the subject of allegations by Whitehurst
or otherwise merits comment.

Before addressing specific individuals, we think some general observations are
appropriate. As the Rudolph matter powerfully demonstrates, we found that
Laboratory management failed to assure that questions about the quality of the
Laboratory's work were adequately investigated and appropriately resolved.
Evidently, the Laboratory failed even to review Rudolph's testimony in
Psinakis despite the detailed, and serious, criticisms made by the AUSA
handling the case. Second, as illustrated by such matters as Avianca and World
Trade, we found that management failed to assure that disagreements among
examiners were resolved on a scientific basis and that any resolution was
clearly communicated to all concerned. We also found that Laboratory
management in several instances failed to assure that there was sufficient
follow up to decisions or directives. One example is the direction to Rudolph
that he return documents to his case files and prepare memoranda describing

his actions. Another is the failure to establish guidelines regarding the
respective responsibilities of the CTU and MAU in the area of explosive
analysis after the issue surfaced in connection with the World Trade case in
1993.

Many of the problems we identified might have been avoided if work by
examiners had been adequately reviewed by a qualified unit chief or another
peer. The absence of such a review partly reflects that the Laboratory did not
adopt a formal quality assurance plan until November 1992 and even then did
not have written procedures or policies on various matters. The Laboratory, for
example, lacked an adequate system of peer review. In the past several years,
the Laboratory has begun addressing these issues as it prepares to seek
accreditation from the American Society of Crime Lab Directors/Laboratory
Accreditation Board (ASCLD/LAB). In Part Six of this Report we address
accreditation and the role of management as part of our general
recommendations for enhancing quality in the Laboratory. As we note there,
management should reaffirm that providing reliable and objective forensic
results is the Laboratory's primary goal, and management must express through
its actions a strong commitment to the Laboratory's quality assurance program.

A.Charles Calfee

Charles Calfee was the unit chief of the Instrumental Analysis Unit (later
renamed the Materials Analysis Unit) from 1975 through 1986, when he
became the chief of the Explosives Unit (EU). In October 1987, Calfee retired
from the FBI. Before Calfee became a unit chief in 1975, he had worked as an
examiner in the EU from 1969 to 1975 and in the Spectrographic Unit, which
later became the Instrumental Analysis Unit, from 1967 to 1969.

Calfee was the unit chief who supervised Terry Rudolph during most of his
career as an examiner. We conclude that, at least in certain cases, Calfee did
not sufficiently review Rudolph's work to assure that the conclusions were
supported by adequate analyses and that the casework was properly
documented. Calfee's failure to adequately review Rudolph's work reflects, in

our view, that Calfee himself did not appreciate the importance of complete file
documentation and case notes, the role of protocols, or the need to limit
conclusions to those logically supported by the scientific analyses and data.

Our conclusions regarding Calfee are based on the condition of Rudolph's case
files and statements made by Calfee during our investigation. Calfee defended
Rudolph's use of liquid chromatography (LC) to identify PETN in the Psinakis
case by noting that the powder Rudolph analyzed had been removed from a
tool evidently designed to strip detonating cord. This observation does not
excuse Rudolph's failure to conduct an appropriate test to confirm his LC
findings, which themselves were merely consistent with the presence of PETN.
Calfee also suggested that substances might, in some circumstances, be
identified without a confirmatory technique. He also indicated that he had
sometimes approved Rudolph's dictation without reviewing all the
documentation, but would instead tell Rudolph to make sure that the
documentation was collected and appropriately identified before the dictation
went to the PE.

Calfee told us that he did not think it necessary that Rudolph record in his work
notes all the tests performed. To justify this position, Calfee said that he told
Rudolph not to use all the evidence in his tests so it could later be reexamined if
necessary. When asked how another examiner could later tell from incomplete
notes what Rudolph had done, Calfee said he thought it would be a very good
test of the capability of any explosive examiner if they could testify based on
the incomplete notes of another examiner. Calfee also remarked that he thought
it was good not to have a set protocol because examiners could then work on a
case-by-case basis. He acknowledged that Rudolph did not always follow the
protocol for explosives residue analysis that Rudolph had described in a 1983
symposium, and Calfee did not require Rudolph to document why he chose to
depart from the protocol on particular occasions.

The views stated by Calfee fundamentally misapprehend the importance of
accurate case notes and protocols in the work of a forensic laboratory. As
illustrated by the Psinakis case, the absence of accurate notes may mean that an
examiner cannot credibly explain his or her conclusions. Moreover, no
meaningful peer or supervisory review can occur if the case notes are

incomplete. Protocols are intended to assure that examiners follow sufficient,
validated procedures for their analytical work. They should be followed absent
articulated reasons for departing from them, and any such departures should be
explained in the case notes.

As a supervisor, Calfee failed adequately to review Rudolph's work. His failure
to do so evidently reflects that he did not himself understand that examiners
should limit their conclusions to those that logically follow from their data and
scientific analyses; that case files and notes must be accurate and complete; and
that adherence to protocols is a foundation for credible and objective forensic
work.

B.Kenneth Nimmich

Kenneth Nimmich was the chief of the SAS from July 1987 until February
1993, when he became chief of the Forensic Science Research and Training
Center (FSRTC). Nimmich retired from the FBI in November 1996.

As noted in Part Three, Section A, we find some fault in Nimmich's handling of
the Rudolph matter. In 1989, after AUSA Burch complained in writing to the
Laboratory about Rudolph's work in Psinakis and Butler prepared his
memorandum noting that there were numerous administrative shortcomings in
the cases he reviewed, Nimmich should have assured that more adequate
reviews were completed of Rudolph's work in Psinakis and his case work
overall. Although he did assign Martz to make a review, Nimmich's
understanding of the nature of the review apparently differed from Martz's. In
retrospect, it would have been desirable for Nimmich to provide written
instructions to Martz concerning the object or methodology of his further
review. Martz's deficient report led Nimmich to conclude that further action
was unnecessary.

When the Laboratory again reviewed Rudolph's cases in 1992, Nimmich
assigned responsibility to Corby to make the review together with Martz and
Lasswell. It is now apparent that Nimmich should have put his instructions for
this review in writing because, although Corby and Lasswell believe that Martz
was part of the review panel, Martz does not recall participating. The review
did not occur as Nimmich contemplated. When Nimmich decided to prepare a
memorandum describing the review, he should have circulated drafts of
pertinent parts of the memorandum to the three individuals he thought
comprised the review panel. Their comments would have been relevant to
Nimmich's recommendations and may have corrected his misunderstanding
about how the review was conducted. To his credit, Nimmich did recommend
that Rudolph be reprimanded based on the 1992 review. Without discussing the
matter with Nimmich, Hicks decided merely to admonish Rudolph. Nimmich
also recommended that Rudolph review the files and prepare a memorandum to
be placed in each file documenting any changes made.

The 1992 review should also have led Nimmich to conclude that a review of all
of Rudolph's cases should have been undertaken at the time. He also should
have put in place some process to monitor Rudolph's preparing memoranda
describing any additions made to the questioned case files.

Nimmich also failed to assure that an appropriate investigation was made in
1989 after FBI metallurgist William Tobin complained that Michael Malone,
an examiner in the Hairs and Fibers Unit, had inaccurately testified in the Alcee
Hastings matter. As noted in Part Three, Section H12, we conclude that
Malone's testimony was in certain respects false and misleading. Tobin
expressed his concerns to Nimmich orally and prepared a memorandum
detailing significant problems with Malone's testimony. Nimmich states that he
does not recall this issue. Although we could not confirm that Nimmich in fact
reviewed Tobin's 1989 memorandum, we are persuaded that Tobin expressed
his concerns orally to Nimmich. Given the serious nature of Tobin's allegations,
Nimmich should have taken steps to assure that they were adequately
investigated.

We also think that Nimmich should have taken additional steps in December
1992 in response to allegations that EU examiner Thurman had prepared

reports that did not include verbatim the auxiliary examiner dictation prepared
by Whitehurst. It would have been preferable if Nimmich had then directed that
all of Thurman's reports including dictation by Whitehurst be reviewed for
possible changes -- a review that did not begin until 1994. In addition,
Nimmich should have then circulated a written statement of the Laboratory's
policy that dictation would be incorporated verbatim into reports unless the
responsible auxiliary examiner approved changes.

We do not find that Nimmich intentionally failed to address concerns about the
quality of the Laboratory's work or attempted to conceal problems within the
Laboratory. Nimmich retired from the FBI in 1996, and we do not recommend
any action by the FBI concerning him.

C.James Kearney

James Kearney was the chief of the SAS from February 1993 until his
retirement from the FBI in June 1995.

We do not find that Kearney acted with a retaliatory purpose in deciding to
transfer the explosives residue program to the CTU in 1994 or to leave
Whitehurst in the MAU after the transfer occurred.

In some cases, we think Kearney should have taken further steps to see that
disagreements among examiners over analyses or the interpretation of data
were resolved on a scientific basis and that the resolution was clearly
communicated to all involved.

In the Avianca case, Kearney failed to give clear and sufficient direction when
the controversy developed between Richard Hahn and Whitehurst in the
summer of 1994. Shortly after Hahn testified in the first trial in June 1994,

Whitehurst sent a memorandum to the prosecutor that raised questions about
conclusions Whitehurst had made in dictation he prepared after examining the
evidence in 1990. Among other things, Whitehurst questioned whether his
previous findings reflected contamination of the evidence. Hahn concluded that
Whitehurst's concerns were not well founded and that he had raised certain
matters outside his expertise. Kearney, after reviewing memoranda prepared by
each examiner and discussing the matter with MAU Chief James Corby,
concluded that Hahn could properly testify about Whitehurst's 1990 findings.

Certain aspects of Kearney's handling of the Avianca matter are troubling.
First, in attempting to resolve the conflict between Whitehurst and Hahn
regarding the significance of the questions Whitehurst raised in the summer of
1994, Kearney should have solicited input from other examiners with
appropriate expertise. Kearney was right to talk to both Corby and EU Chief
Ronay, but he should have sought further expertise to evaluate the scientific
issues Whitehurst had raised. Second, Kearney failed to communicate his
conclusion to the persons involved. Although Kearney states he thought both
Hahn and Whitehurst should testify at the second trial, that view evidently was
never communicated to Hahn, Whitehurst, or the prosecutor. Hahn simply
assumed that Laboratory management did not object to his again testifying
about Whitehurst's 1990 findings, and Hahn testified in the second trial without
knowing what Kearney had decided. Whitehurst claims he was surprised to
learn that Hahn had testified in the second trial and says he was never told what
Kearney had concluded.

We also think Kearney should have followed up further when Steven
Burmeister complained in 1994 that he disagreed with conclusions that J.
Thomas Thurman had included in a report related to an attempted bombing at
the William Wirt Middle School. Given Burmeister's concerns, Kearney should
have asked another qualified examiner to assess the validity of Burmeister's
concerns and, if appropriate based on that review, Kearney should have
directed that the report be amended or supplemented.

We do not find that Kearney intentionally failed to address concerns about the
quality of the Laboratory's work or attempted to conceal problems within the

Laboratory. Kearney retired from the FBI in 1995, and we do not recommend
any action by the FBI concerning him.

D.John Hicks

John Hicks was the Laboratory Director from August 1989 until his retirement
from the FBI at the end of June 1994. Before becoming the Laboratory
Director, Hicks had served as the Deputy Laboratory Director from 1986 until
1989, as the chief of the SAS from 1983 until 1986, and as the assistant chief of
the SAS from 1979 until 1983. He worked as an examiner in the Microscopic
Analysis Unit, which later became the Hairs and Fibers Unit, from 1971 until
1976.

As the Laboratory Director, Hicks failed to assure that the concerns raised by
AUSA Burch about Rudolph's work in the Psinakis case were adequately
investigated. In his July 8, 1989, letter to Hicks, Burch noted that Rudolph had
improperly relied on hearsay from a field agent and had not conducted
sufficient analyses to support his conclusions. Burch detailed his criticisms in
four pages that also raised questions about contamination of evidence,
protocols, and peer review within the Laboratory. By a letter dated July 28,
1989, Hicks responded to Burch by stating that he shared Burch's concerns and
that as a result of Psinakis, Hicks had instituted an internal audit of the
protocols used for the identification of explosives residue.

After receiving Burch's letter, Hicks should have directed that the transcript of
Rudolph's testimony be reviewed. Hicks told the OIG, however, that he did not
recall reviewing the testimony or hearing that anyone else had reviewed it.
Moreover, if Hicks intended there to be an internal audit of the FBI protocols in
explosives cases, as he stated in his response to Burch, Hicks failed adequately
to communicate that intent to others in the Laboratory. Given the conclusions
reached by Butler in his 1989 review, which found numerous administrative
shortcomings in 200 of Rudolph's cases, Hicks should have then initiated a
complete review of Rudolph's case work.

Hicks also did not satisfactorily resolve the Rudolph matter after the 1992 case
review. By deciding to give Rudolph merely an oral admonishment, despite
Nimmich's recommendation for a severe reprimand, Hicks downplayed the
significance of Rudolph's misconduct. We do not find, however, that Hicks
improperly attempted to cover up the allegations against Rudolph or
deficiencies in his work.

As explained in Part Four of this Report, we do not find that Hicks engaged in
improper retaliation in connection with the suspension of Whitehurst for one
week in 1990 for his conduct in the Psinakis case.

In hindsight, the Laboratory would have benefitted greatly if Hicks had more
strongly articulated the importance of quality assurance, more aggressively
promoted the adoption of policies and procedures like those required for
accreditation, and more thoroughly investigated and addressed concerns about
the quality of the Laboratory's work. Hicks retired from the FBI in 1994, and
we do not recommend any action by the FBI concerning him.

E.Alan T. Robillard

Alan T. Robillard joined the Laboratory Division in 1977 and worked as an
examiner in both the Hairs and Fibers Unit (HFU) and the Questioned
Documents Unit (QDU). In 1988, Robillard became unit chief for the HFU; in
1989, he became unit chief for the DNA Unit. Robillard in 1990 became the
Assistant Section Chief for the Scientific Analysis Section. In 1994, after
briefly serving as the chief for a newly formed QDU, Robillard voluntarily
transferred out of the Laboratory as part of the general reassignment of agents
from FBI Headquarters.

We do not find that Robillard violated FBI policies or otherwise engaged in
improper conduct with respect to any of those matters we investigated.

Whitehurst asserts that Robillard once told him that the FBI wanted to sweep
the Rudolph matter under the rug. Robillard denies making this statement and
notes that he was not involved in any of the reviews of Rudolph's work. We did
not find any corroboration for Whitehurst's allegation and did not otherwise
discover facts suggesting any wrongdoing by Robillard related to the Rudolph
matter. We also do not find that Robillard engaged in improper retaliation in
connection with the suspension of Whitehurst for one week in 1990 for his
conduct in the Psinakis case.

Whitehurst also states that Robillard, as acting unit chief of the HFU, pressured
serology examiner Robert Grispino to change his results in the Melissa
Brannen case to agree with those of DNA examiner Dwight Adams. As
explained in Part Three, Section H3, we did not find any evidence to support
this allegation. Grispino had issued a report stating that serology tests indicated
that a missing girl could have been the source of blood stains found in the
defendant's car; Adams later conducted DNA tests that excluded the girl as a
possible source. Robillard, Grispino, and Adams each deny that there was any
effort to pressure Grispino to change his results.

On a different point, in correspondence to the OIG, Whitehurst stated that
Robillard had once told him that the QDU lacked protocols and had been
winging it for years. Our investigation indicates that Robillard did not make the
broad statement attributed to him by Whitehurst. Instead, Robillard in 1994
asked Whitehurst to assist in a research project to distinguish laser printer
copies from photocopies, which examiners in the QDU had not been able to do.
Robillard acknowledges that in this context he may have said something about
winging it, but states that he never suggested that the QDU generally lacked
protocols or a proper basis for its conclusions. Whitehurst in an OIG interview
acknowledged that Robillard's comments may have been limited to the research
project they were discussing and that Whitehurst does not know what protocols
the QDU may generally use.

III.Other Individuals

This section discusses several other individuals who allegedly engaged in some
form of misconduct. Included within this section are persons who were the
subject of allegations by Whitehurst or who were otherwise identified to the
OIG in the course of its investigation.

A.Roger Asbury

Roger Asbury worked as an examiner in the Firearms Identification Unit from
1974 to 1978 and in the Elemental Analysis Unit from 1978 to 1984. In 1984
he worked with the FBI Inspections Staff, and in 1985 he became the chief of
the Forensic Science Research Unit in Quantico. Asbury was chief of the
Materials Analysis Unit (MAU) from August 1986 through August 1987, a
time in which Whitehurst was training to become an examiner and Terry
Rudolph was still working in the Laboratory. Asbury became the chief of the
Laboratory's Administrative Unit in 1987. From 1989 until his retirement from
the FBI in 1993, Asbury worked in the International Criminal Investigative
Training Assistance Program (ICITAP) within the Office of the Deputy
Attorney General.

Whitehurst alleges that Asbury, while serving as MAU chief, told Whitehurst
that Rudolph was blackmailing the FBI and that the Laboratory practiced Black
Magic rather than science. Asbury did not recall making either of these
statements and told the OIG that Whitehurst may have taken some other
remarks out of context. Asbury said that he may have told Whitehurst that the
Laboratory could not allow Rudolph to leave the Laboratory before someone
else was trained to examine explosives residue, and that Whitehurst may have
concluded this meant Rudolph was blackmailing the FBI. Similarly, Asbury
suggested that comments he made that forensic science is not considered to be
real science and is looked down upon by the scientific community may explain
Whitehurst's recollection of some reference to Black Magic.

Asbury acknowledged to the OIG that as MAU Chief he did not feel qualified
to scientifically critique work by examiners in the unit. He also noted that
quality control suffered as a result, because the FBI did not have a process for
peer review other than review by the unit chief. Asbury also stated that he was
generally dissatisfied with Terry Rudolph's documentation of his work, that he
directed Rudolph to provide more documentation in certain cases that Asbury
reviewed, and that he came to conclude that Rudolph should leave the
Laboratory.

We do not find that Asbury engaged in misconduct with regard to those matters
that we investigated. To his credit, Asbury did observe in a 1987 progress
review that Rudolph's communication of results would improve with more
comprehensive and detailed notes in preparing reports. In retrospect, it would
have been desirable if Asbury had taken further steps to address his concerns
about Rudolph's casework. We recognize, however, that Asbury was cast into a
supervisory position in the MAU for only about one year and he did not have a
sufficient background to substantively evaluate Rudolph's casework.

B.Edward Bender

Edward Bender worked as a technician in the FBI Laboratory from August
1979 until January 1990. As noted in Part Three, Section A, we did not
generally evaluate the quality of Bender's work as a technician. We also did not
evaluate any of Bender's forensic work after he left the FBI to work for the
Bureau of Alcohol, Tobacco and Firearms within the Department of the
Treasury.

As an FBI employee, Bender did not himself prepare reports or dictation or
testify about conclusions reached in the Laboratory -- that responsibility rested
with the examiner for whom Bender performed his technical work. Because we
concluded that the FBI OPR had not sufficiently investigated Whitehurst's
allegations that Bender was a racist and this affected his work, we did
investigate those matters further. Our investigation confirms that Bender
inappropriately made racial comments while employed as a technician in the

Laboratory, but we do not find evidence that his remarks or his racial views
affected his work in particular cases.

C.Louis J. Freeh

Whitehurst suggested that Director Freeh, when an Assistant United States
Attorney, may have engaged in misconduct in the VANPAC case through the
presentation of testimony by Martz and Thurman or by statements made in the
closing argument. As described in Section Three, Part B, based on our
investigation we do not find any basis to conclude that Freeh knowingly
presented any improper evidence or otherwise engaged in prosecutorial
misconduct in this case.

In correspondence to the OIG, Whitehurst has also noted that certain other FBI
employees who are eligible for retirement do not have to fear retaliatory actions
from Director Freeh. Whitehurst also has alleged that Thurman said that Freeh
would fire Whitehurst if he kept making allegations. Based on our
investigation, we do not find any basis to conclude that Director Freeh directed
or otherwise participated in any retaliation against Whitehurst.

D.Donald Haldimann

As described in Part Three, Section C, Whitehurst alleged that SSA Donald
Haldimann approached him on December 15, 1993, at an office Christmas
party and told Whitehurst that his dictation in the World Trade case was too
complex and that the U.S. Attorney's office was seeking to circumvent
Whitehurst's testimony. Whitehurst claims he felt pressured by Haldimann to
remove qualifying statements from his dictation and that Haldimann's
statements may have reflected an effort by the U.S. Attorney's office to
suppress evidence in a fraudulent and unethical way.

Whitehurst's allegations in this matter are unsupported. The reports in question
were completed before Haldimann spoke to Whitehurst; Haldimann denies any
effort to convince Whitehurst to modify the reports, but admits he asked
Whitehurst why he worded things in a confusing way; and Haldimann states
that no one directed him to talk with Whitehurst before they coincidentally met
at the party. We do not find that Haldimann acted improperly in this matter or
that it reflects any effort by the U.S. Attorney's Office to suppress evidence.

E.Ronald Kelly

Ronald Kelly worked as a technician in the Laboratory from 1978 until
February 1995, when he became an examiner in the CTU.

In the Shaw case discussed in Part Three, Section H7, Whitehurst alleged that
CTU examiner Kelly, without being properly qualified, prepared a report
concerning a pipe bomb sent to a federal judge. Whitehurst also claimed that
the analysis was flawed because Kelly failed to determine if materials other
than smokeless powder were present in the bomb. We find that Kelly did not
violate any FBI policies or procedures through his work on the case. His
identification of smokeless powder appears to be technically correct. Although
the analyses he performed may not have identified other materials had they
been present in the bomb, that point illustrates the need to integrate the CTU's
protocols for the identification of smokeless powders and explosives rather than
any improper conduct on Kelly's part.

F.Lynn Lasswell

SA Lynn Lasswell worked as an examiner in the CTU from 1975 through 1994,
when he transferred to the FBI's San Antonio field office as part of the general
reassignment of agents from FBI Headquarters. We do not find that Lasswell
engaged in misconduct in any of the matters we investigated.

In several letters to the OIG, Whitehurst has alleged: (1) that Lasswell was not
trained as an examiner of explosives residue; (2) that he incorrectly identified
smokeless powder as the main charge in an explosive device used in an
attempted bombing of a federal building in San Diego, California; an