In this Feb. 22, 1986 motion, prosecutors try to block attorneys for Timothy McVeigh from using civil discovery procedures, stemming from a suit brought against McVeigh in an Oklahoma court, as part of his criminal defense.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Chief Judge Richard P. Matsch
Criminal Action No. 96-CR-68-M (formerly No. 95-110 MH WDOK)
UNITED STATES OF AMERICA,
Plaintiff
v.
TIMOTHY JAMES McVEIGH and TERRY LYNN NICHOLS
Defendants.
MOTION OF THE UNITED STATES FOR A PROTECTIVE
ORDER STAYING DEFENDANTS FROM PURSUING CIVIL
DISCOVERY
The United States moves this Court for an order staying defendants
from pursuing discovery in civil cases arising from the April 19,
1995, bombing that is the subject of this indictment. Defendant
McVeigh, represented by counsel appointed under the Criminal
Justice Act, has improperly sought to expand the criminal
discovery rights allowed him under federal law by invoking the
civil process of an Oklahoma state court. As set forth more fully in
the accompanying brief, federal case law supports the imposition
of a protective order preserving the integrity of this prosecution.
Respectfully Submitted,
HENRY L. SOLANO
United States Attorney
JOSEPH H. HARTZLER
Special Attorney to the U.S. Attorney General
SEAN CONNELLY
Special Attorney the U.S. Attorney General 210 W. Park Avenue,
Suite 400 Oklahoma City, Oklahoma 73102 (405) 231-5281
CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of February 1996, a true and
correct copy of this Motion was served by mail upon:
(1) Stephen Jones, Esq.
Robert Nigh, Esq.
Richard Burr, Esq.
114 East Broadway, Suite 1100
P.O. Box 472
Enid, OK 73702-0472
Counsel for Timothy James McVeigh; and
(2) Michael E. Tigar, Esq.
Ronald G. Woods, Esq.
D. Kate Rubin, Esq.
1620 Mid-America Tower
20 North Broadway
Oklahoma City, OK 73102
Counsel for Terry Lynn Nichols
SEAN CONNELLY
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO Chief Judge Richard P. Matsch
Criminal Action No. 96-CR-68-M (formerly No. 95-110 MH
WDOK)
UNITED STATES OF AMERICA,
Plaintiff
v.
TIMOTHY JAMES McVEIGH and TERRY LYNN NICHOLS
Defendants.
BRIEF OF THE UNITED STATES IN SUPPORT OF MOTION
FOR A PROTECTIVE ORDER STAYING DEFENDANTS
FROM PURSUING CIVIL DISCOVERY
BACKGROUND
In the wake of the federal indictment of defendants McVeigh and
Nichols, various civil lawsuits have been filed seeking damages for
the April 19, 1995, bombing. McVeigh has conceded to this
Court that he views these civil suits as an "opportunity to take
depositions of witnesses and to issue subpoenas for the production
of items which he could not get from the government." Docket
Entry ("DE") 784 at 23. Indeed, McVeigh deems civil suits
"extremely important for the defense" precisely because "there [is]
no basis in the criminal case to subpoena" witnesses before trial.
Id.
Most recently, a lawsuit was filed in Canadian County
(Oklahoma) state court by Edye Smith, whose sons Chase and
Colton died in the blast, against "McVeigh and other unknown
individuals." See Amended Petition filed 2/9/96 in Smith v.
McVeigh, No. CJ 96-18 (Can. Cty. Dist. Ct.) (Exhibit A:1-3).
Attorney Stephen Jones, who was appointed to represent McVeigh
in this federal criminal case under the Criminal Justice Act, entered
his appearance on behalf of McVeigh in the state civil case on
February 7, 1996. See Exhibit A:4. McVeigh has not yet filed any
answer in the civil case, but already Mr. Jones has sought civil
discovery therein. See McVeigh's Application for Formal Letter
of Request to take Depositions in Foreign Courts, filed 2/12/96
(Exhibit A:6-10). Mr. Jones' affidavit in support of this civil
discovery request discusses the allegations in the "parallel"
criminal case and criticizes the federal government's investigation.
Exhibit A:15- 23. McVeigh requests that an Oklahoma judge allow
him to pursue discovery in the civil case, including "depositions in
Great Britain" (pursuant to letters rogatory) of three alleged
"British fascists" to examine "their activities in the United States to
advance their political agenda and whether these discussions
involved the possibility directly or indirectly of overt activity
against the federal government, its employees and its property."
Exhibit A:7. Mr. Jones' supporting affidavit cautions that he "does
not at this point allege that these individuals are involved in the
bombing, but instead believes that they may have knowledge of
motives and participants." Exhibit A:22.
Mr. Jones' public comments confirm that he wishes to exploit civil
discovery for the purpose of defending McVeigh in this federal
criminal case as well as in the press. For example, an Associated
Press story on February 9, 1996 (three days before McVeigh's
deposition requests were filed in state court), reported that "Jones
said the depositions may be used in the federal [criminal] case."
"McVeigh Attorneys Seek Subpoenas," AP, Feb. 9, 1996 (Exhibit
B:1); see also Exhibit B:3 (Mr. Jones' statement on Feb. 5, 1996,
edition of NBC's Today Show, that: "I think there may be a link
not involving my client but that there may be a link between some
very radical right-wing groups in this country and the neo-Nazis in
Britain and Germany that may have been part of a conspiracy to
bomb the federal building"); Exhibit B:5-8 (Mr. Jones' interview
that same day on CBS This Morning); "McVeigh Lawyer Looks
into European Conspiracy Theory," Daily Oklahoman, Feb. 5,
1995, at 07 (Exhibit B:9-11).
ARGUMENT
It is well established that "in appropriate circumstances, the district
court has authority under [Federal] Rule [of Criminal Procedure]
16(d) to prevent the parties from abusing discovery procedures,
including attempts to avoid the limitations on criminal discovery
through the use of civil discovery provisions." United States v.
Stewart, 872 F.2d 957, 962-963 (10th Cir. 1989) (citing SEC v.
Dresser Industries, 628 F.2d 1368, 1373 (D.C. Cir. 1980);
Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert. denied,
371 U.S. 955 (1963)). In many cases "[f]ederal courts have
deferred civil proceedings pending the completion of parallel
criminal prosecutions when the interests of justice seemed to
require such action, sometimes at the request of the prosecution...."
United States v. Kordel, 397 U.S. 1, 12 (1970); e.a., RaPhael v.
Aetna Casualty and Surety Co., 744 F. Supp. 71 (S.D.N.Y. 1990);
LaRouche Campaign v. FBI, 106 F.R.D. 500 (D. Mass. 1985).
Judge Wisdom's seminal opinion in Campbell v. Eastland outlined
the reasons courts should ensure that defendants do not circumvent
the restrictions on federal criminal discovery by seeking more
liberal civil discovery in a related case. One important reason is
not to add to "the defendant's existing advantages" in a criminal
case. 307 F.2d at 487 n.12 (internal quotations omitted). Not only
must the federal prosecution prove a defendant's guilt beyond a
reasonable doubt to a unanimous jury of twelve citizens, it must do
so after having provided the defense with statutorily and
constitutionally mandated discovery. In contrast, "the self-
incrimination privilege would effectively block any attempts to
discover" information directly from the defendant. Id. The present
case -- in which the United States has provided McVeigh with
discovery of more than 10,000 witness statements and a massive
quantity of physical evidence while receiving virtually nothing in
return -- is a prime example of a federal criminal defendant's built-
in "advantages." McVeigh should not be allowed the additional
advantage of using civil discovery to prepare to defend against
federal criminal charges.
A case closely on point is United States v. Phillips, 580 F. Supp.
517 (N.D. Ill. 1984). The court there ordered the defendant to
"cease taking or receiving further discovery in the state court case,"
which had been filed against him five months before his federal
indictment, "until his criminal trial in this Court has been
completed." Id. at 520. The court based this order on the facts
that:
A review of the discovery materials already obtained and requested
by Phillips in the civil action indicates that Phillips has
unquestionably utilized the state civil discovery rules for the prime
purpose of obtaining materials to which he is not entitled under
federal criminal discovery rules. Although some of the
information sought by Phillips relates to the state court slander
suit, much more of the discovery is aimed at Phillips' upcoming
criminal trial. This abusive tactic is an improper circumvention of
the criminal discovery rules. Protection of the integrity of the
criminal justice process fully justifies this Court's taking remedial
action.
Id. at 519-520.
Stay orders have been issued regardless of whether the civil lawsuit
was brought and discovery was sought for reasons entirely
independent of the criminal case. E.q., Campbell v. Eastland, 307
F.2d at 488 ("whether or not the suit, as distinguished from the
motion was bona fide, the effect of granting the motion was to give
pre-trial discovery of documents denied the taxpayer in the
criminal case"); In re Eisenberg, 654 F.2d 1107, 1113-1114 (11th
Cir. 1981) ("Even if Eisenberg possessed the purest of motives, he
would have been the beneficiary of materials otherwise unavailable
to him under the criminal rules if the motion were granted, thus
nullifying in effect the criminal discovery limitations"); Twenty
First Century Corp. v. LaBianca, 801 F. Supp. 1007, 1010
(E.D.N.Y. 1992) (stay ordered even though "[n]o party to this
action contends that the civil case was brought solely to obtain
broader discovery in the criminal case"). Indeed, defendants have
been stayed from pursuing civil discovery even where it was the
federal government that simultaneously was pursuing both the
criminal and civil cases. F.q., In re Ivan F. Boesky Securities
Litigation, 128 F.R.D. 47, 48 (S.D.N.Y. 1989) (staying civil
discovery where "Michael Milken and Lowell Milken are
defendants in parallel civil and criminal cases brought respectively
by the Securities and Exchange Commission ('SEC') and the
United States Attorney"). It is enough in such cases that "the
similarity of the issues left open the possibility that [defendant]
might improperly exploit civil discovery for the advancement of
his criminal case." United States v. Mellon Bank, N.A., 545 F.2d
869, 873 (3d Cir. 1976).
This clearly is an appropriate case for ordering McVeigh
temporarily not to pursue or receive any civil discovery. McVeigh
has conceded to this Court that he views these civil suits as an
"opportunity" to obtain discovery, particularly pretrial witness
depositions, that he could not legitimately obtain in this criminal
case. DE 784 at 23. Moreover, Mr. Jones' affidavit in support of
his civil discovery request spends far more time discussing the
allegations in the "parallel" criminal case and criticizing the
+federal government's investigation than he does responding to any
separate allegations in the civil case. See Exhibit A:15-23. Indeed,
McVeigh sought international discovery in the state case before
even bothering to respond to the complaint. The inference is
unavoidable that McVeigh's discovery-driven response to the state
civil suit is an effort principally to defend against federal criminal
charges rather than to litigate whether McVeigh (a sworn indigent)
is civilly responsible for millions of dollars.
To the extent McVeigh might argue that he has sought civil
discovery in whole or in part to defend the state case, and not just
to aid his criminal defense, he clearly is not entitled to the services
of attorneys appointed under the federal Criminal Justice Act
("CJA"), 18 U.S.C. Section 3006A. Whether or not McVeigh's
attorneys are actually billing the United States for time spent
defending the civil case, CJA funds are subsidizing their overall
representation of McVeigh. Those lawyers are not entitled to use
federal funds to subsidize their representation, including overseas
discovery, of a civil defendant in a state case.
This Court accordingly should issue a protective order staying
defendants from pursuing or receiving discovery in any civil case
pending the outcome of this criminal proceeding. The United
States has no indication that defendant Nichols has ever sought to
exploit civil discovery, but the proposed order would include him
as well. In addition, the proposed order would require defendants
to notify the Court and the United States of any civil litigation in
which they are named parties, so that the need for any further relief
may be determined.
CONCLUSION
For the above reasons, the Court should enter an order staying
defendants from pursuing discovery in civil cases arising from the
April 19, 1995, bombing. A proposed order is attached.
Respectfully Submitted,
HENRY L. SOLANO
United States Attorney
JOSEPH H. HARTZLER
Special Attorney to the U.S. Attorney General
SEAN CONNELLY
Special Attorney to the U.S. Attorney General 210 W. Park
Avenue, Suite 400 Oklahoma City, Oklahoma 73102 (405) 231-
5281
CERTIFICATE OF SERVICE I hereby certify that on this 22nd
day of February 1996, a true and correct copy of this Brief was
served by mail upon:
(1) Stephen Jones, Esq.
Robert Nigh, Esq.
Richard Burr, Esq.
114 East Broadway, Suite 1100
P.O. Box 472
Enid, OK 73702-0472
Counsel for Timothy James McVeigh; and
(2) Michael E. Tigar, Esq.
Ronald G. Woods, Esq.
D. Kate Rubin, Esq.
1620 Mid-America Tower
20 North Broadway
Oklahoma City, OK 73102
Counsel for Terry Lynn Nichols
SEAN CONNELLY
