U.S. Department of Justice

Washington, D.C. 20530

FEB 11 1997


TO: Michael R. Bromwich
Inspector General

FROM: Stanley A. Rothstein
Terrorism and Violent Crime Section
Criminal Division

SUBJECT: OIG Draft Report on FBI Laboratory

In accordance with your letter to me dated January 22, 1997, I have reviewed the portions of the draft report relating to the VANPAC case. I have the following comments.

1. There are two grammatical/typographical errors that I noticed. On page 20 of Part Three, Section B, first full paragraph, sixth line, the words "was the of same type" should be changed to "was of the same type." On page 24, first full paragraph1 second line, the words "to make a 'successfully compare' the powders" is grammatically incorrect. You may wish to delete the words "make a" so that it reads "to 'successfully compare1 the powders."

2. I do not believe that it is a fair criticism of Roger Martz to state that his testimony on direct examination about his attempts to compare the Hercules Red Dot smokeless powder obtained from the Shootin' Iron Gun Shop with the Hercules Red Dot smokeless powder in the IEDs was "unnecessarily ambiguous." (See pages 23-24 of Part Three, Section B of draft report). Reviewing page 1933 of the transcript of the federal Moody trial, the prosecutor asked Martz whether he was asked to compare the powder from the devices with the off-the-shelf can. Martz responded that he was. He was then asked the following two questions and gave the following answers:

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.

The prosecutor then elicited from Martz his opinion that it is not possible to take shell powder and powder from an exploded device and determine whether they are from the same batch. (See pages 1933-34 of trial transcript).

In my view, it is inappropriate to find that Martz "should have stated more directly that he found differences and similarities when he compared certain samples." (See page 24 of draft report). The trial transcript demonstrates that Martz attempted carefully to respond to the exact questions put to him. The questions posed to Martz may have been somewhat ambiguous. The fact that he attempted to answer them precisely is not the fault of the witness. In any event, the prosecutor then elicited from Martz that it is not possible to determine whether powder that has exploded comes from the same batch as unused powder. The prosecutor could have pursued the line of inquiry and next asked Martz whether it is possible to determine whether powder that has been placed in an unexploded IED and off-the-shelf powder come from the same batch. The prosecutor, however, did not ask that question.

Accordingly, I believe that the references to Martz's testimony on this issue should be deleted from the report. They appear on pages 23-24 of Part Three, Section 3, and page 5 of Part 5.

* * *

As my February 6, 1997 memorandum to you stated, three other attorneys in this Section have had access to the draft report. James Reynolds and Ronnie Edelman reviewed portions of the report in connection with their supervisory responsibilities over cases and matters in this Section which involve FBI Laboratory personnel. Brian Murtagh reviewed portions of the report relating to specific examiners who have provided evidence in matters assigned to him. No copies of the report were made, and I am returning the original to you with this memorandum.