The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Wednesday, March 25, 1998 (afternoon)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TERRY LYNN NICHOLS,
Defendant.
REPORTER'S TRANSCRIPT
(Hearing on Motions)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 1:30 p.m., on the 25th day of March,
1998, in Courtroom C-204, United States Courthouse, Denver,
Colorado.
Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
APPEARANCES
PATRICK RYAN, United States Attorney for the Western
District of Oklahoma, 210 West Park Avenue, Suite 400, Oklahoma
City, Oklahoma, 73102, appearing for the plaintiff.
LARRY MACKEY, SEAN CONNELLY, BETH WILKINSON, GEOFFREY
MEARNS, JAMIE ORENSTEIN, and AITAN GOELMAN, Special Attorneys
to the U.S. Attorney General, 1961 Stout Street, Suite 1200,
Denver, Colorado, 80294, appearing for the plaintiff.
MICHAEL TIGAR, RONALD WOODS, ADAM THURSCHWELL, REID
NEUREITER, JANE TIGAR, SUSAN FOREMAN, and TY GEE, Attorneys at
Law, 1120 Lincoln Street, Suite 1308, Denver, Colorado, 80203,
appearing for Defendant Nichols.
REGINALD J. BROWN and ROBERT F. HOYT, 2445 M Street,
N.W., Washington, D.C. 20037, appearing for Marsha Kight and
Martin Cash.
PAUL G. CASSELL, University of Utah, College of Law,
Salt Lake City, Utah, 84112, appearing for Marsha Kight and
Martin Cash.
* * * * *
PROCEEDINGS
(In open court at 1:30 p.m.)
THE COURT: Be seated, please.
We're convened in 96-CR-68, United States against
Terry Lynn Nichols for consideration of several matters. And
we'll ask for the appearances. Mr. Mackey . . .
MR. MACKEY: Good afternoon, your Honor. For the
United States, in addition to myself, Mr. Sean Connelly is
here, Beth Wilkinson, Pat Ryan, Geoff Mearns, Jamie Orenstein,
and Aitan Goelman.
THE COURT: For Mr. Nichols, Mr. Tigar?
MR. TIGAR: Good afternoon, your Honor. Mr. Nichols
is here and Ron Woods and I are here. With us are Adam
Thurschwell, Reid Neureiter, Jane Tigar, and Susan Foreman, who
has been added to the defense team under the conditions that
your Honor had mentioned before. Also in court, your Honor, is
Mr. Ty Gee, who your Honor authorized to help us on some of
these sentencing guidelines intricacies that are going to be
argued today.
THE COURT: All right.
MR. CASSELL: Your Honor, Paul Cassell, along with Bob
Hoyt and Reg Brown for Marsha Kight and Martin Cash.
THE COURT: I proposed the sequence here of matters to
be heard would be this: That we'd start with the defendant's
motion for judgment of acquittal under Rule 29, for new trial
under Rule 33 and arrest of judgment under Rule 34, then the
motion for compliance with the mandatory victims' rights under
Rule 32 and under the statute, then consider the objections to
the draft of the presentence report and then guidelines,
sentencing issues as far as the application of the guidelines.
That seems to me to be the logical sequence.
So given that, we'll turn to the motions, Mr. Tigar,
under 29, 33, and 34.
MR. TIGAR: If your Honor please, I don't intend to
tax the Court's patience by discussing anything other than the
new trial aspect of the motion.
THE COURT: I think the other matters are fully
briefed.
DEFENDANT'S ARGUMENT ON MOTION FOR NEW TRIAL
MR. TIGAR: Yes, your Honor. The issue as tendered by
the parties is this: As the Court will recall, after the
direct testimony of FBI Agent Budke, we learned for the first
time that the Government had a large storehouse of memoranda,
handwritten, that reflected interviews with witnesses. Of
course, as to Agent Budke, the document that was eventually
produced and marked as an exhibit was Jencks material and ought
to have been produced earlier.
It was produced. We cross-examined.
Then when Mr. Dilly appeared during the penalty phase,
we got another insight into that bunch of material and found
that, once again, what we got was exculpatory in character.
That led to the Government's agreement to review the material
in question, it being uncontested that none of it had been
reviewed theretofore in connection with the Government's
discovery and Brady obligations.
The report the Government filed with the Court has
been filed and we have commented upon it.
Let me make the most expeditious and simple proposal
first with respect to this, your Honor, because there is a
procedural history here.
Back in 1995, if the Court please, the parties began
to discuss reciprocal discovery; and we reached an agreement
that was, indeed, unprecedented, although not unprecedented in
the way that the Government says. The Government points to the
fact that they delivered to us some 28,000 or so FBI 302's and
inserts. We did something that I have never done in a criminal
case; that is to say, we agreed to open file reciprocal
discovery of all memoranda done by our investigators with
limited exceptions, such as members of the family.
Therefore, there was a quid pro quo and not simply the
Government as a matter of grace giving us something.
This agreement was never reduced to writing; however,
it was an agreement and there was a meeting of the minds.
The definition, your Honor, of a statement included --
and I'm putting this up on the ELMO, this No. 4: "A memorandum
of interview, FBI 302 or other document, made by a
representative of a party to this action that purports to
summarize any statement given to the recording agent by the
person being interviewed."
That language was in all of the drafts beginning with
the first of these proposed agreements that were exchanged.
And the Government regarded this paragraph as defining the
nature of our agreement. That is made clear by this filing of
January 26, 1966 (sic), in which Mr. Hartzler represented to
the Court that the United States has voluntarily produced all
these reports -- referring to the FBI reports of interview --
pursuant to an oral agreement with defense counsel that they
would reciprocate within 30 days.
So that January 26, 1996 filing made clear that the
parties had reached a meeting of the minds; that they knew what
a statement was, and that statements included all of these --
anything, whether it's an FBI 302 or otherwise that was a
summary of what somebody said to an agent.
Just to nail the point, Mr. Woods wrote to
Mr. Hartzler on January 10, 1996 -- that's Exhibit H to our
motion -- and noted that Mr. Hartzler had agreed that there
would be produced a breakdown by various categories that would
list all witnesses in those categories that would be Brady
material to us; i.e., those witnesses who have given different
versions on the whereabouts of the Ryder truck on various
dates, John Doe No. 2, etc. That is not purporting to describe
all of the categories.
Well, clearly, what Agent Budke had from Sergeant Wahl
was Brady material within the meaning of that letter. Here is
Mr. Woods making a specific request, and he's confirming that
Mr. Hartzler has agreed not only to make the production under
the agreement but that Mr. Hartzler has agreed that he's going
to comb that material to identify material that could be
regarded as exculpatory.
I don't have to tell the Court that we made good use
of what was produced to us; that is, your Honor saw the
cross-examinations, your Honor saw us using the witness
notebooks. And I would ask the Court to recognize that when we
got material from the Government that were these FBI reports of
interview and inserts, we knew what to do with them. We had
them organized. Every time a witness got on the stand, we had
not only that witness' but what other witnesses had said about
the same subject and our cross-examination reflected thorough
preparation on our part. At least from my perspective and
Mr. Woods' as lead counsel, I was proud of what our team did
with that.
So what does the Government say about why these
materials were not produced? And I haven't yet got to this
effort that they've made to go through them and tell us what's
in them. They say, no, no, no, these are notes and thus, they
were not subject to any agreement to produce.
Well, if the Court please, we know what notes are.
Notes are what Mr. Smith did. Mr. Smith made notes when he
talked to Mr. Nichols. They are illegible, in no particular
order, not on a form, on any size any paper at all; that is,
whatever the agent wanted, made in pen or pencil and above all
contemporaneous. Notes do not have a place at the bottom of a
form where notes are taken such as all of these lead sheets do
to take further action that's reflected. And by the way, some
of what has been produced to us, the action taken has been
whited out.
So our first contention, your Honor, is that the Court
can't decide a new trial motion at this procedural hour; that
what needs to happen here is that the Government needs to make
production of these materials. They're not very long. There
is 40,000 of them, but most of them are just one page. We'll
do the same thing with them that we did with our -- with the
FBI 302's and inserts. We'll go over them, have a team do it,
do it in as short order as we can, we'll get back to the Court,
and we will make a report to the Court whether we, in good
faith, as advocates, believe that the withholding of any of it
is so significant that we're entitled to relief under Rule 33.
This course -- that is to say, turning it over -- I
respectfully suggest is not only required by the terms of the
agreement that the Government violated, but, also, your Honor,
as a matter of prudence. All of us have been involved in
litigation in which a matter has wound its way up to the court
of appeals, there has been an order that now -- that somebody
has to come back and look at it or not an order that somebody
has to come back and look at it; but if there is one, then it
has to be done at that point or else the court of appeals
finishes and certiorari is denied and there is Rule 2255 and
then a district judge who, you know, wants to be the third
guesser in the -- in connection with it says, well, no, we
better look at this because the withholding of this kind of
information is the very sort of thing that undoes otherwise
valid judgments more quickly, thoroughly, and, I would say,
justly than almost any other form of alleged government
misconduct.
So that would be our first proposal. We just cut the
knot here, and because there are contentions being made today
that are going to make it difficult to get this case to
judgment within the next couple of weeks or three weeks, as the
parties had hoped, that we just do that process. After, all as
the Supreme Court reminded us in United States against Dennis,
you know, only advocates or Dennis against United States --
excuse me -- I guess it is, the one in 384 U.S., probably about
page 873. We have the court saying that it's advocates that
can tell what's in there, and we cite Alderman for the same
proposition.
Alternatively, your Honor, the Government has
represented to the Court that they have gone through this
material and with the exception of the 11 or so documents they
produced, the alleged Jencks material, there is just nothing in
there. There is no Brady, there is some civilian Jencks,
noncivilian Jencks they don't talk about -- and we've discussed
the inadequacies of that -- but that's it.
Well, if that's true, your Honor, then I'm going to
start buying lottery tickets and everybody can stand behind me
and see what numbers I'm getting, because I'm going to win.
There are 40,000 statements. We had two trips into that cache
of material -- one from Mr. Budke and one for Mr. Dilly -- and
in both instances, we found exculpatory material. The
Government's representation to the Court is that the other
39,998 things contain nothing; that it was just a lucky hit on
our part to get those.
Well, I -- I don't want to be unduly ironic or more
than the situation demands or seem to be sarcastic or criticize
counsel, but whatever review process was engaged in here, it
clearly had to be inadequate. It's clearly inadequate as to
the Jencks Act production, and it certainly doesn't meet the
standards that the parties developed during the process of
earlier discovery.
Your Honor, when the Government would send us lists
based on the inserts of what Brady material was, they had every
sighting of somebody that could be John Doe No. 2, they have
all the Ryder truck sightings, they would have interviews from
people who couldn't possibly see what they said they saw. In
other words, the Government took its discovery obligation
perhaps more seriously than the situation warranted; but at any
rate, they took it seriously.
Here, at this procedural hour, they've chosen to do
something entirely different, which is to withhold from us
information that the record undisputably shows we could make
effective use of.
So for that reason, your Honor, I respectfully suggest
that the motion for new trial is not ripe for decision; that
the Government has not met the obligation of production that it
had under the agreement, and it has not met the obligation that
it had conscientiously to review these materials.
THE COURT: All right. Mr. Mackey, you're going to
address the motion?
PLAINTIFF'S ARGUMENT ON MOTION FOR NEW TRIAL
MR. MACKEY: I will, your Honor. Thank you so much.
Judge, the defendants in this case received all the
discovery that they were entitled to. And before I begin to
respond to the precise arguments made by Mr. Tigar, let me make
a final report to the Court as to the scope of the discovery.
More than 28,000 witness statements totaling more than
52,000 pages were produced; transcripts of every witness before
the grand jury totaling some 2,100 pages; 16,000 pages of lab
notes and lab reports; more than 2,300 government trial
exhibits derived from some 14,000 items of physical evidence,
and millions and millions of phone records and multiple records
of every sort.
We're down to at this hour, your Honor, the question
of whether handwritten notes taken by agents as they took phone
calls from private citizens is discoverable; and our position
is, as we've reported to the Court, it is not.
There is a couple preliminary matters if I could
advise the Court. First of all, thousands upon thousands of
the lead sheets generated, 302's or inserts that were produced
to the defense, so there is a great body of the material that
turned itself in in the normal flow of the investigation into
materials that were, in fact, produced to the defense.
The second preliminary matter, Judge, is there was
absolutely never at any point in time an agreement that
handwritten notes of this nature would be produced. It was not
the subject of any reciprocal agreement. Indeed, I was party
to and familiar with and recall various conversations, all of
which netted out to nothing. We had lots of exchanges of
paper, lots of phone calls, contemplating at that time a
tri-party agreement between Mr. McVeigh's counsel and
Mr. Nichols. We reached no agreement.
On January 12 of 1996, we forwarded a letter to
counsel, telling them exactly what we were going to provide in
the way of our initiative through discovery. And at that time,
we provided thousands and thousands of 302's and inserts and
made clear in my fair reading of the letter, Judge, that's what
we understood our obligation to be, statements of the witnesses
as reduced to 302's or inserts, and later in grand jury
transcripts.
If, indeed, it was contemplated, as Mr. Tigar
suggests, that every handwritten note of an investigator who
took a call from a citizen offering information, regardless of
whether it was relevant or not, then we should have gotten some
as well, Judge. We received no handwritten notes from defense
investigators or other defense teams saying, I got a phone call
from a private citizen and this is what they reported. What we
did receive and what I believe the defense did in the way of
honoring this gentleman's agreement was provide us with scores
of typewritten reports, much like the same typewritten reports
that were being produced to the defense from the FBI files.
We have understood, your Honor, from the beginning of
this case our duty to look for and find and produce any Brady
or Jencks material. And that was the task that we went about
in December of this past year, to identify any materials that
might be within handwritten notes that we're describing.
The first step that we took, Judge -- and I'd like to
make a record as to the process -- is we simply gathered them
here in Denver. The Court recalls that there were a number of
FBI offices around the country that beginning on April 19 and
continuing for many weeks thereafter received phone calls from
citizens who wanted to help, offer advice, information,
whatever. There was a form that was used -- we call it the
lead sheet. It can be called a phone message pad, for that
matter, Judge, that served the limited purpose at that point in
time of simply taking down skeletal information from that
caller. It was never the intent nor was it ever contemplated
or carried out in such a way that phone calls would become the
means to conduct an investigation into the bombing. It was
leads. Leads only.
And so the FBI would, in fact, take those names, phone
numbers, contact those people, and in traditional fashion do a
full interview, question and answer, reduce those statements to
written form; and those are the statements that became the
52,000 pages of discovery that the defense received.
Once we had those lead sheets here physically in
Denver, your Honor, myself and Mr. Orenstein conducted a
personal briefing of the FBI agents that I had asked to perform
an initial screening task.
THE COURT: Now, let me just interrupt a moment. The
timing of that is that my recollection is this came up during
Agent Budke's testimony.
MR. MACKEY: Yes. Came up twice. December 11 and
later with Mr. Dilly on December 31.
THE COURT: But the first time --
MR. MACKEY: Yes, your Honor.
THE COURT: -- was with Agent Budke; and at that time,
my recollection is -- I haven't gone back and reviewed it --
that you reported that you were not aware of these lead sheets
and the procedures that were being followed on the 1-800
number.
MR. MACKEY: That's correct.
THE COURT: So that you did not see these or have
these produced to counsel for the Government up to that time.
MR. MACKEY: That's exactly right.
THE COURT: Okay.
MR. MACKEY: The extension of that thought, of course,
is it was never part of the Government attorneys' files that
could be used in any form or fashion in shaping our evidence or
in cross-examining the defense.
THE COURT: Now, we'll take it from there.
MR. MACKEY: Once they're in hand, Judge -- and I
think the number gets bumped up close to 42,000 -- I did a
briefing of the agents and I said: This is what I want you to
do. I want you to sort through the materials. I don't want
you to analyze anything. I'm not asking for legal judgments or
opinions. I want you to sort through these materials with the
idea of sorting it into three stacks, your Honor, stacks that
are nothing more than agent-to-agent communications, a form
that was used to send a request or a lead to another field
office, saying we've identified this information, would you
check it out, would you please interview this person, find this
document. Those kinds of things that you would expect the FBI
would do. So we sorted those out, Judge.
The other thing we sorted out was -- second category,
were opinions of citizens who called in to offer nothing more
than I think I know who John Doe 1 or 2 is based on the
composites. And that is some 18,000 citizens called in and
offered essentially the nature of that information.
The third category is everything else. Everything
else. Without being precise into categories, everything else.
And that netted out to almost 12,000 lead sheets. And those
are the lead sheets, your Honor, that myself and members of the
prosecution team reviewed, read, page by page, to look to see
whether, in fact, there is any Jencks, any Brady, any material
that should be disclosed under the law to the defense.
I will say, because Mr. Tigar has taken an opportunity
to compliment the defense, and I can do as well. Let me
compliment the prosecution team for this part of the project.
It wasn't fun work, Judge. I will tell you. Not fun work at
all. But there was no cavalier attitude about it. Everybody
understood how important it was. We had recalled and reviewed
the definition of Brady that your Honor had described for all
of us many, many months ago. There was no confusion about what
our task was or how important it was.
What we did was reviewed every one of those 12,000
lead sheets page by page and our conclusion, my representation
to you, your Honor, is there is no Jencks or Brady within them.
And it's not a laughable proposition if we think about the
process and what was going on in the way of flow of
information, early leads to the FBI in April of 1995. I can't
give you a figure, but I would estimate it would be in the
hundreds, where somebody called in and said: I have a Middle
Eastern neighbor that I've always wondered about. The examples
go on and on and on. And as I said in the brief, many of them
track what's being publicized about the investigation. A fact
that is reported in the newspaper, the next day, there are 200
phone calls about that fact.
So when we think about it, in terms of the flow of the
information and the stage of the investigation, it is not
laughable for us, after 12,000 pages of review, to say to this
court there is no Jencks or Brady as it comes to the issues
that were tried in this courtroom.
We did find some occasions where citizens, witnesses
that we called during the prosecution of Terry Nichols, had, in
fact, called into the FBI and there were, in fact, those
handwritten notes written down by the agent essentially
summarizing what it was that the caller said. One of them --
and we've given all of these to the defense and your Honor has
seen them in the way of attachment to the defense pleading --
there is, I think, 12 additional lead sheets. They -- for
example, Florence Rogers, your Honor recalls her testimony, was
a representative from the credit union. She called in in March
of 1996 to say, I just got a bomb threat. Someone called me
and said, We're going to blow up the federal credit union.
This is a year to the day after the bombing in Oklahoma City.
Janey Coverdale called in and said I have two friends
who keep talking to me about all the information they have.
She gave the information as she learned it from those two
people, the names of those two people, and the defense in this
case received detailed multipage interviews of those
individuals.
That's the kind of information -- I won't go through
all of them, Judge -- that led us to the conclusion that even
with respect to the witnesses who were on this witness stand
and took the oath and testified in this case, there was no
Jencks or Brady.
I think I won't belabor any other additional points
that have been raised either in the brief or in my response,
your Honor, other than to say that as I have at the outset, we
understood the task, it has been performed, and I report to the
Court the results of that review.
THE COURT: So you accepted the -- the separation out
that was done by FBI agents and the lawyers looked at the
12,000 odd --
MR. MACKEY: Exactly. The separation was by my
design, in consultation, obviously, with other members of the
prosecution team. We're aware of the nature of the project and
how many lead sheets there might be.
THE COURT: What are you willing to let the defense
look at, apart from the question of delaying further
proceedings, because Rule 33 provides, of course, that even
when there is an appeal pending, the Court can hear a motion
for new trial based on newly discovered evidence. You can't
grant it, of course, while it's pending on appeal in the
absence of a remand; but, procedurally, the inquiry or the
investigation about newly discovered evidence can go even after
a judgment. Are you willing to --
MR. MACKEY: I'll respond in twofold, your Honor. As
a matter of law, it's our position that nothing of the lead
sheets are discoverable.
THE COURT: I understand.
MR. MACKEY: As a matter of practicality, it is the
policy or the nature of the policy that marked our discovery
position throughout this prosecution, we produced unprecedented
discovery, unprecedented, categories of information that had
never been produced.
THE COURT: I'm not talking about that. I'm
talking -- what I'm talking about is are you willing to let
them look at it?
MR. MACKEY: Without jeopardizing the timely
imposition of final judgment?
THE COURT: Yes. I'm saying what Mr. Tigar has
suggested -- and I understand his reasons for doing so and the
appropriate objection -- or suggestion for the defense is that
we wait; but I don't think you need to wait under Rule 33,
because they've got two years to file a motion based on newly
discovered evidence, and it can be heard by the Court even
where the case is on appeal.
MR. MACKEY: Your Honor, my instincts teach me that it
is more than appropriate to agree to disclosure under that
understanding; that indeed, that we can advance this case to
final disposition.
There is one mechanical matter that, of course, will
have to be taken up; and Mr. Tigar alluded to it and your Honor
knows. This lead sheet was a form designed to communicate
information about the action on that lead, and I don't think
under any scenario there ought to be disclosure where there is
a result recorded on that same lead sheet of what the FBI did
in response to that lead.
THE COURT: This is for what information was
communicated to the extent that it was recorded.
MR. MACKEY: Correct. The source information, your
Honor.
THE COURT: Yes.
MR. MACKEY: With that understanding . . .
THE COURT: Well, Mr. Tigar?
DEFENDANT'S REBUTTAL ARGUMENT ON MOTION FOR NEW TRIAL
MR. TIGAR: If your Honor please, I appreciate the
Court's suggestion. I think there is a difference between the
standard that would be applied to a new trial motion made on
the grounds of newly discovered evidence post judgment, and
that that would be applied to a new trial motion made and
decided before judgment is entered.
THE COURT: Well, but this would be post judgment
because you wouldn't have these -- you know, what I'm saying is
we'll let you -- we'll let you -- I'll -- the Government is
willing to produce this source information, and you can review
it after we've entered final judgment. And if there is
anything in there that supports a motion for new trial, it
would be in the nature of newly discovered evidence.
MR. TIGAR: Except, your Honor, as I understand the
Rule 33 standard, the Court on a prejudgment Rule 33 motion
sits essentially as the 13th juror; and the Court, within its
discretion, because such a ruling is reviewed for abuse of
discretion should the Court grant a new trial, could grant a
new trial whether or not we had met the Berry standard of --
for newly discovered evidence based upon the withholding.
THE COURT: Yes. I'm separating out the motion based
upon what you know as you stand here today vs. what you
discover as the result of the providing of this information
post judgment.
MR. TIGAR: Well, so for that reason, your Honor, I
don't wish to reject what the Court is offering us. I simply
note that it is our decided preference that we would have the
opportunity to review it before judgment.
THE COURT: I understand.
MR. TIGAR: I will make these further observations,
your Honor, just so that the record is clear.
As I understand it, Government counsel did not review
the 18,000 lead sheets that purported to say that John Doe
No. 2 is, you know, X or Y, or Z or my neighbor; and yet if we
look at the lead sheets that were produced because they were
Jencks -- for example, here's Mr. Dilly and he says that he
believes Un. Sub. 2 is Robert somebody who served in C Company
and so on.
Now, that is not "My neighbor is Middle Eastern and
I've always been suspicious." This is a man who served with
Tim McVeigh who tells us not only who John Doe No. 2 is but
also gives a description and says that he was a friend of
McVeigh and McVeigh used to watch his house.
THE COURT: Yeah. And it's been produced for that
very reason.
MR. TIGAR: Well, your Honor, no. I think, your
Honor, this has been produced because Mr. Dilly was a witness
and it's Jencks material. What the Government is telling us is
that 18,000 statements that reflect John Doe No. 2 sightings
were never reviewed by Government counsel. I just wanted the
record to be clear about that. I believe that is the case.
Finally, your Honor, with respect to what parts of
these lead sheets are going to be produced to us, there may be,
in some cases, a governmental privilege; however, let's look at
this lead sheet, No. 14267, that was provided to us. The
Government would want to white out the lead information and the
disposition information. The Court will note that a lead sheet
is not notes. There is an original, a rapid start, and a lead
copy that's made. It's got an actual official number, and
there is a control number. But the information as to what was
done with the lead -- that is to say, a further interview was
conducted of the witness -- would in this instance be relevant
to what goes before. It's not simply some internal
administrative designation.
So we would -- we'd respectfully suggest that the
appropriate procedure would be to turn over the sheets to us,
to turn them over unredacted, to turn them over under a
protective order.
Your Honor, our defense has never had a problem with
these protective orders in this case. We've observed them,
they've been entered for information far more sensitive than
what we're talking about here and that we review them under
those conditions.
And I would respectfully ask, maybe, Mr. Mackey
through the Court whether the Government would agree to that
simply to avoid the difficulties of redaction of these some
40,000 documents.
THE COURT: All right. Mr. Mackey?
PLAINTIFF'S SURREBUTTAL ARGUMENT ON MOTION FOR NEW TRIAL
MR. MACKEY: It's a rare occasion I may not have been
listening to Mr. Tigar, but I think I heard what he said.
THE COURT: About the 18,000?
MR. MACKEY: Yes, yes. And my understanding of the
earlier suggestion from the Court would be that it would be
limited to the 12,000 that the lawyers reviewed. I mean, I
think, as a matter of law -- and we can argue this now or
later -- that those lead sheets that fall into that common
category of opinions about who John Doe 1 or 2 are simply by --
under no circumstances, by their nature, are the Jencks or
Brady; so my understanding of the process is we would go about
redacting only those 12,000 that fall outside of those two
other categories and were the ones reviewed by the prosecution.
THE COURT: Tell me again what the criterion was that
was given to the investigators who review these others and
separate out the 18,000 when it comes to unsubstantiated John
Doe 2 or whatever they used?
MR. MACKEY: Essentially, two questions: 1) Is this
lead sheet an internal communication between agents, FBI to
FBI? That's one question. If it is, that's one category. And
they total some 12,000 or so.
The second category is the information, an opinion
about the identity of John Doe 1 or 2; that is, someone saying
I think I saw the person in the composite.
THE COURT: Opinion, rather than an expression of some
fact?
MR. MACKEY: Yes. Yes.
THE COURT: "It looks like my brother-in-law."
MR. MACKEY: "And I saw him at the laundry, or I saw
him on the bus this afternoon. Here's the route. You can find
him."
THE COURT: And that was the standard given.
MR. MACKEY: Yes. And the additional instructions,
Judge, was don't make any close calls. If you have any doubt
about whether lawyers should look at that, put it in the
lawyers' stack. And that's part of the reason it got to
12,000. I'll tell you from my own experience there were a
number of those lead sheets that I reviewed that, by and large,
that are essentially nothing more than someone saying I saw
John Doe 1 or 2; so I feel very comfortable in making that
initial sort, but it was inclusive to the group that
prosecutors eventually reviewed.
THE COURT: Okay.
MR. MACKEY: As to Mr. Tigar's suggestion, I do think
it is so important and must stand on the principle that
whatever we would make subject to disclosure would be nothing
below the line that ends the block for narrative.
THE COURT: I understand.
DEFENDANT'S FURTHER ARGUMENT ON MOTION FOR NEW TRIAL
MR. TIGAR: With that clarification, your Honor, I'm
afraid I need to restate our view here. The John Doe No. 2
sightings, which the prosecutor in summation ridiculed as Elvis
sightings, turned out in this case to be important; that is, we
were led to witnesses who identified people that were
associated with Mr. McVeigh in various ways. We presented that
evidence to the jury. I respectfully submit that it had some
impact on the way the case was presented. Certainly, it did
from our perspective. So to take 18,000 of those things,
characterize two or three of them and say, Well, you can't look
at those or shouldn't look at those does not seem to us
adequate; that -- and what we're being told here is that the
prosecutors didn't even look at those; that is, they set up a
category and didn't even look at them and they let FBI agents
do it. That's not compliance with the Government's Brady
obligation.
With respect to the first category, FBI agents to FBI
agents: Well, FBI agent to FBI agent can contain exculpatory
information such as a laboratory note, for example, that might
have been reached. I don't know if it was on a lead sheet that
a drill belonging to Mr. Nichols might have been submerged in
water for a period of time.
THE COURT: Well, that type of thing is not -- we're
not dealing with that, as I understand it. These are all --
those were things the Government had before. We're dealing
with the calls in under the 800 number.
MR. TIGAR: Except, your Honor, I'm told that the lead
sheets that are being talked about here include FBI agent to
FBI agent. I don't know how the 800 number generated FBI-
agent-to-FBI-agent material. Maybe what they mean is the thing
that Mr. Budke did. Now, that's an FBI-agent-to-FBI-agent. It
says, Go out and interview, you know, to Agent Schaefer -- go
out and interview Master Sergeant Wahl. And that which is in
evidence, your Honor, is very significant, because the first
part contains what Agent Budke heard, which was gray Chevy
pickup. Then at the bottom in the part the Government proposes
to hide from us as privileged, there is further information
about what Mr. Wahl said as a follow-up on the lead.
Now, eventually, 302's get made, but the 302's and
grand jury don't have the same information as on the lead
sheet.
So if the Court please, I don't think there is any
substitute for disclosure here. The Government's procedure for
reviewing these things is, in our respectful submission,
manifestly inadequate; and we believe that the entire group of
40-some-thousand should be turned over to the defense. The
claim that the Government never in its wildest imaginings
thought of handwritten things as being part of the agreement
is -- seems to us irrelevant. They didn't even know they
existed. The fact is that the definition was broad enough.
Had our investigators not been able to type and had written out
things in that form, those would have been turned over; and the
statement here today that there never was an agreement or that
there was just a gentleman's agreement, I emphatically reject,
your Honor. We produced, we relied; and on the 26th of
January, Mr. Hartzler told the Court there was an agreement,
and he even attempted to hold Mr. Jones to it by doing a little
reciprocal withholding. Your Honor will recall the grand jury
testimony dispute.
So Alternative 1, your Honor: We would request an
evidentiary hearing at which the agents who did the initial
review would testify so that we can be clearer about these
categories. We would request the opportunity following up on
the agents' testifying to ask the Court to put -- let us put
prosecutors on the stand, although we wouldn't do that unless
we thought it was necessary; and in the alternative, your
Honor, to exploring this further because of what we say is the
inadequate production, we ask that the 40,000 be disclosed to
us under a protective order. We'll review them under -- as
expeditiously as possible and make our report to the Court.
THE COURT: Mr. Mackey?
PLAINTIFF'S FURTHER ARGUMENT ON MOTION FOR NEW TRIAL
MR. MACKEY: Judge, very briefly, your Honor, as I
listened to the arguments, it came back to me that problems
upon problems will develop even in a scenario that your Honor
is thinking about. And that's why I return to our initial
position and ask the Court to order -- rather, to deny the
motion and any relief as it relates to discovery of lead sheets
and the record stand as it is.
RULINGS
THE COURT: All right.
Well, I'm denying the motions for judgment of
acquittal and for new trial and arrest of judgment as they are
made on the papers here, separating out this matter of whether
there has been a failure to comply with Brady or Jencks and a
breach of any discovery agreement.
Now, as to that, as I've already indicated, the way I
read Rule 33 based -- new trial motion based on newly
discovered evidence, that's available to the defense after the
entry of final judgment for another two years. I'm not going
to hold up disposition of the case and the entry of final
judgment for further exploration of these lead sheet papers
because it's my interpretation that that would be newly
discovered evidence within the meaning of the rule.
I'm going to direct the Government to provide the
12,000 roughly that have been mentioned here as the material
that has been reviewed by Government counsel with the redaction
with respect to directions with respect to following up on the
leads. I am granting that redaction because I would assume
that the Government still has an interest in investigation.
Not all of the questions have been answered by the evidence
presented at the trial, and so I assume that this is still a
matter of inquiry by the appropriate law enforcement agencies
of the Government. And it's consistent with that that I will
authorize the redaction.
With respect to the request for an evidentiary hearing
to inquire further of the agents or whoever conducted the
screening in accordance with the directions Mr. Mackey has
identified here as having been given as criteria for the
sorting or separation, I'm denying that and I'm denying the
production of the material that wasn't given to counsel
consistent with the directions. I'm assuming that whoever did
it did it according to the directions; and I have no reason to
go behind that. You know, there are some reasonable
limitations on what we can do. And I believe this order is
reasonable; so that's how we'll do it.
MR. TIGAR: May we have a date, your Honor, by which
the production is to take place?
MR. MACKEY: I propose, if your Honor would accept, no
sooner than 30 days after imposition of judgment.
THE COURT: Well, it's going to be after final
judgment, so that there can be no argument that it's newly
discovered. That's why I'm suggesting that, but I don't know
why it has to be 30 days.
MR. MACKEY: It's incredibly time-consuming, your
Honor, and the reality is while there is ongoing investigation,
a limited staff, it is limited and those in Denver --
THE COURT: Well, it's to do the redactions.
MR. MACKEY: Yes, yes. We're going to have to pull
out and do the redaction page by page; so I'll be happy to
shoot for 30 days, your Honor, and pledge we'll do better if we
can. If it gets worse, I'll certainly let the Court know.
MR. TIGAR: Well, if that's the order, your Honor, may
I clarify, then, that when we get in material, we're going to
have to review it, your Honor, and it would be our intention to
have investigators who had done some of the earlier reviewing
work with us. Will Mr. Nichols be entitled to the services of
appointed counsel and investigators under the Act --
THE COURT: I think so.
MR. TIGAR: -- for that purpose?
THE COURT: Yeah. I read 848 as authorizing that,
even though I can assume for this purpose that there would be a
notice of appeal filed in that 30 days' time.
MR. TIGAR: Yes, your Honor.
THE COURT: But I believe that under the unusual
circumstances here, that that's a legitimate expenditure, to be
sure; so, you know, I'm going to authorize it.
MR. TIGAR: Thank you, your Honor.
THE COURT: It may come back to my statement some day,
but I'm authorizing it. All right.
The next matter is the motion that was filed here on
behalf of Marsha Kight and Martin Cash identified as a motion
for compliance with mandatory provisions of Rule 32 and that
was filed the -- the brief was filed in support of it. The
Government filed a brief to the same effect, saying that
victims have a right of allocution. The defense filed a
response on February 23, the essence of which is that -- that
part of Rule 32 is not applicable because this court had a
sentencing hearing with the jury because of the applicable
provisions of the death penalty statute.
We have counsel here for the movants. I think, again,
to expedite the matter, I'll ask the defense whether you have
any change of position. There was a reply filed to the defense
objection, so --
MR. TIGAR: No, your Honor, our position is as stated
in our papers.
THE COURT: And I do characterize it correctly, do I,
that you're saying that that part of Rule 32, at least, is not
applicable because the Court, along with the jury, heard the
sentencing phase information?
MR. TIGAR: Yes, your Honor. That's the practical
effect of the interpretation of the rule, is that the Court
heard it. Our position rests upon an analysis of the statute.
I can do that now --
THE COURT: Go ahead.
MR. TIGAR: -- or wait to reply to what Professor
Cassell and others would say.
THE COURT: All right. Well --
MR. TIGAR: Whatever your Honor wishes.
THE COURT: I think I understand the position of the
movants, which is that Rule 32 says what it says and that it
was enacted -- the amendment to Rule 32 was enacted by the
Congress, didn't really come through the Rule's enabling act
normal procedure; it came in as a result of these amendments to
the victim act legislation. I can't remember what they call
the statute, but it's amendment to the Victims and Witnesses
Protection Act, I think is what it is. So that's your
position, isn't it, Mr. Cassell?
MR. CASSELL: Yes, your Honor. We'd be glad to
elaborate or respond to Mr. Tigar's argument.
THE COURT: Well, let's hear from the defense, because
I understand what you wrote.
DEFENDANT'S ARGUMENT ON MOTION FOR VICTIM ALLOCUTION
MR. TIGAR: If your Honor please, early in -- earlier,
really, than the sentencing or penalty phase hearing, at the
innocence phase of the trial, the Court took the position that
the Death Penalty Act of 1994 superseded Federal Rule of
Criminal Procedure 24; and to that end, your Honor held the
alternate jurors available to substitute for the nonalternate
jurors in the event that somebody became disabled or whatever.
THE COURT: Right.
MR. TIGAR: Now, thus, the law of the case is that
there are ways in which the Death Penalty Act supersedes
provisions of the Rules of Criminal Procedure. Of course, a
Rule of Criminal Procedure is of no greater or lesser dignity
for having been enacted by Congress as opposed to having been
gone through the Supreme Court process and simply not vetoed or
not amended by the Congress.
Our position on this issue is consistent with the
position that we have taken with respect to the guidelines. I
begin by noting that the Tenth Circuit has already held that it
is -- would be a very unusual case in which victims would have
standing to come into court and compel your Honor to do
anything; that is to say, in which they would have standing as
parties. Rather, the structure of the -- of these provisions
has not derogated from the very fundamental principle that it
is the sovereign and not the victims who control the course of
a criminal prosecution.
Indeed, with respect to the statute that went to the
Tenth Circuit on the previous occasion, it said expressly that
the Government was to use best efforts.
But in this case, what we're being told is that, well,
Rule 32 speaks of a crime of violence. It says the sentencing
court must, and therefore, the sentencing court must.
However, under this statute, the statute that we're
operating under, it's clear that there is no presentence
report. The normal function of the normal process of
sentencing is different. And let me try to describe to the
Court how we got here, because I think that's -- that's basic
to our position on a lot of these issues. We went to Mr. Ryan
and we said it's inappropriate for you to sign a notice of
intent to seek the death penalty. We then went to Washington,
D.C., to review his decision he was going to do it and had the
rudest reception I've ever had by any bureaucrat ever in my 30
years. But we had a reception, anyway; and they approved
through the attorney general Mr. Ryan's signing a notice which
was word-for-word identical to that filed against Mr. McVeigh.
We litigated that issue in front of your Honor. We litigated
it in the Tenth Circuit, and yet the Government persisted. So
thrice did they say that they wanted this statute and nothing
else.
Then we litigated the Death Penalty Act issues as a
substantive matter, and your Honor made some changes in the
list and -- in the notice, and I kept insisting Mr. Ryan had to
sign it. And your Honor got a little impatient with me,
perhaps; but it was deemed to be signed.
THE COURT: Well, he stood up here --
MR. TIGAR: Stood up and said he signed it.
THE COURT: Yes.
MR. TIGAR: Then, your Honor, after the innocence
phase of the trial, the jury returns 18 not guilty verdicts and
we have an argument about Bullington against Missouri and we
say to the Government, could you now desist? Could we stop
this now? Could we quit? And they won't do it, because they
have what the Tenth Circuit has held to be the unreviewable
discretion to force your Honor to hear and us to defend a
proceeding under this statute. And under Payne vs. Tennessee,
your Honor having rejected our view that Payne did not apply to
this statute because it didn't expressly permit, in a certain
way, victim impact evidence, 54 witnesses took the stand and
testified.
Now, that, your Honor, is a process by which people,
in the way that the Supreme Court of the United States has
decreed -- people who feel themselves victimized make their
views known to the jury and to the court. After all, the Death
Penalty Act does contemplate that the court may wind up doing
the sentencing and as interpreted by your Honor that the jury,
if it fails to make certain threshold findings, does turn it
over to the court.
Under those circumstances, we respectfully suggest
that the purposes, if purposes there be, of victim
participation in the sentencing process, have been amply
satisfied; and since the statute says that, you know, no
presentence report, the statute authorizes or the statute
suggests that the otherwise mandatory provisions of Rule 32
simply don't apply.
That, your Honor, is our position, is that we are --
the Government has chosen a procedure which as parens patriae
binds all citizens; and having chosen that procedure, the
statute itself says that Rule 33 doesn't apply under these
circumstances.
THE COURT: Rule 32.
MR. TIGAR: Rule 32. Excuse me, your Honor. Wrong
rule.
THE COURT: Well, are you saying that part of Rule 32
doesn't apply, or the whole rule doesn't apply? Here we have
the situation where we proceeded under the Death Penalty Act.
The jury returned a verdict in which it did not find either of
the necessary intents being relied upon for the death sentence.
And that was a decision, as the Court has interpreted it, that
there can be no death sentence in the case; therefore, the
sentencing must be done by the Court.
Now, to my mind, that means that the court proceeds in
the same fashion as if there had been no death penalty, not
that there had been no death penalty possible because, you
know, I've heard a lot and participated with the jury at that
hearing; but we still, I think, are called upon to proceed
under the statute, 3553, and to consideration of the guidelines
as the statute commands. And I would think that as the statute
commands, we would also be looking at Rule 32 and using
procedures under Rule 32. And indeed, I instructed the chief
probation officer of the Court to do a presentence report and
to provide counsel with copies of the draft, which he's done
and to which you've replied, but -- so I have assumed that
because the Court must impose sentence in this case and because
the Court must function within the normal sentencing
constraints procedurally, that Rule 32 in all of its provisions
is now applicable.
MR. TIGAR: Well, I'm grateful for your Honor's
explication of the position here. I had doubted that the Court
had the power to say that Rule 24 didn't apply, but the Court
did because it regarded it as superseded by the Act.
THE COURT: Well, the Court is entitled to be
selective on the rules.
MR. TIGAR: I've never doubted that, your Honor, for a
moment. If I have seemed to doubt it, your Honor, I recede
from all such positions, renounce all such errors, and repent
of them heartily.
But let's look at Rule 32 and see which of these
provisions might apply. First, time for sentencing. Well,
that's -- might or might not.
(b) presentence investigation. It's true that your
Honor did order a presentence report, but not as mandated by
the statute, because the death penalty statute says no
presentence report. And your Honor reserved to yourself
portions of the presentence report determination that you
ordinarily would have had Mr. Miklic and his capable staff do,
so that I did not interpret your Honor's order to have a
presentence report prepared in part as law of the case for the
position that the other provisions of Rule 32(c) applied. In
fact, quite the contrary. I interpreted that as a holding by
your Honor that you were not mandated to follow all of the
provisions of Rule 32(b).
Next we get to Rule 32(c). At the time that your
Honor sentenced Mr. McVeigh, you noted that you were obliged by
statute to impose the sentence recommended, quote unquote, "by
the jury."
THE COURT: Right.
MR. TIGAR: But that you would nonetheless grant a
right of allocution. I interpreted your Honor's view there,
although it's not binding on the Court here in this later
proceeding, as simply saying that the right of allocution being
so firmly founded perhaps on constitutional grounds --
THE COURT: I think it is.
MR. TIGAR: -- that -- that your Honor would not, even
though the statute seemed to say that the allocution would be a
futile act -- that is, you couldn't do anything with what you
were being told -- that your Honor would permit it. And so I
didn't interpret that as saying that you thought that Rule 32
applied under that situation, although, as we say, that case is
different.
So now we get down to the imposition of sentence
provisions here. That's where if sentence is to be imposed,
etc., etc., "the court must . . . Now, that's 32(c)(3).
The presentence report provisions are expressly
referred to here under 32(c)(3) big (A). And yet those are the
very provisions of law -- that is to say, the presentence
report provisions -- that the statute says are not to be
applied here and that the Court has already interpreted to give
the Court the power and not Mr. Miklic to make certain of the
determinations.
THE COURT: Well, the Court has that power always. I
mean, if they -- under normal sentencing, all they do is do a
computation, but they, you know -- I don't sign off on somebody
else's work usually and make my own determinations in an
ordinary sentence hearing, so --
MR. TIGAR: Again, I don't -- your Honor is the only
person who can interpret the meaning of your Honor's orders
with respect to how this has been -- the presentence report has
been prepared. I'm simply noting that textually, it does not
appear that a portion of 32(c) is mandatory upon the court.
Indeed, quite the contrary.
THE COURT: Okay.
MR. TIGAR: So then we get down to (e), which is what
the -- Professor Cassell and others are talking about here.
Under this statute, there is a provision for victims to testify
and to present evidence. Now, one of the things that this
statute gives us, your Honor, is the right to present evidence
in rebuttal; that is to say, if victim impact evidence under
the statute is presented and your Honor is going to hold -- we
have, if it's presented under the statute as it was -- we have
the right to call witnesses. We would have the right to
cross-examine the witnesses, the victim impact witnesses that
they brought, as we had the right to do during the penalty
phase in this trial.
32(c)(3)(E) simply says that the victim gets to make a
statement and present information; thus, it speaks to a
completely different procedure than under the statute. The two
procedures cannot live together. They are flatly inconsistent
with one another.
Under the statutory procedure, the Government makes
the selection of which witnesses are to appear. The defense
has the opportunity to cross-examine, and certain rules of
evidence, although not the Federal Rules, but certain rules of
evidence apply with respect to the balancing, prejudicial vs.
probative.
Then the defense has the right under the statute, as
under Payne vs. Tennessee, to present witnesses, live witnesses
of its own after it has been notified and had the -- of who is
going to appear for the Government or as pro-severity
witnesses, let's put it that way, and then to put those
witnesses on and they can be cross-examined and we can get
exhibits together and so on. The statute gives us those
rights.
Now, why did we get the rights? I would have been
happy to dispense with them. I would on the day this
indictment was returned been happy to walk into Mr. Ryan's
office and say to him, Give us 32(c), Mr. Ryan. Give us 32(c).
But he chose not to. He chose to give us something else. He
chose to give us a chance to be death eligible. Well, of
course, all of us are death eligible, but he wanted to make
Mr. Nichols death eligible in a quite particular way; and
having made that choice, we were entitled to those rights and
we exercised them.
That shows that there is an inconsistency between the
statute and the rule and supports our argument that the rule
doesn't apply and puts us, therefore, right back to where the
Tenth Circuit said we were; that is to say, there are so many
instances, given the Government's sovereign duty, power, and
obligation to control the course of criminal justice in which
the Government, having acted, does so as parens patriae and may
deprive citizens of what would otherwise be their right of
autonomy to participate in proceedings.
That's our position.
THE COURT: Does the Government wish to be heard on
this? Mr. Connelly?
PLAINTIFF'S ARGUMENT ON MOTION FOR VICTIM ALLOCUTION
MR. CONNELLY: Thank you, your Honor. We'll let
Mr. Cassell do the bulk of the argument in terms of
representing the victims that he does. Just a couple of
points.
I think your Honor has stated the plain language of
Rule 32 clearly allows victim allocution, so the question
really is -- I think the only question is does Rule 32 apply.
I think the defense --
THE COURT: Well, it does say more than simply the
right of allocution.
MR. CONNELLY: To make a statement and present
information.
THE COURT: Yeah.
MR. CONNELLY: And I think the legislative history and
intent of Congress in 1994 when it directly enacted that
provision was to provide a right to victims equivalent to the
right of allocution that the defendant has, and the right of
defense allocution is one that has evolved over time first, I
think, recognized by the Supreme Court as one that just allows
a defendant to argue any legal impediment to imposing sentence,
and then I think codified back in 1966 by the -- by the framers
of the Federal Rules, and then later on, the Rules were amended
to allow the government and the defense counsel a right to make
a statement relating to sentence. So I think the history of
the Rules shows that there has been equivalency at this point
that the victims, according to the intent of Congress, is
supposed to have a right equivalent to that of the defendant.
In terms of whether the right applies, whether Rule 32
applies, I think it's clear that Section 3593, the -- the
provision relied on by Mr. Tigar, says that for a defendant who
pleads guilty or is sentenced pursuant to an offense under
Section 3591, no presentence report shall be prepared.
This defendant is not being sentenced pursuant to
3591, which is a death penalty sentencing provision. That
would apply to Mr. McVeigh, for example, who the jury
recommended be sentenced to death. It would also apply if the
jury had unanimously recommended that the defendant be
sentenced to life imprisonment. In those cases, the Court's
discretion would be limited; and under the statute, the Court
would have to impose a sentence recommended by the jury.
This defendant is being sentenced pursuant to 18
U.S.C. Section 3553, as the Court pointed out, the Sentencing
Reform Act, so I think the first point is that that Section
3593 doesn't even apply because this defendant is not being
sentenced pursuant to that statute. Second, even if it did
apply, all it says is that no presentence report shall be
prepared. It doesn't say that there is no right of allocution,
it doesn't say that none of the other Rule 32 rights apply. It
simply, according to the plain language, says that no
presentence report shall be prepared. And I think that's far
too slender a read, even if the statute applied to this case,
which it doesn't, to say that there's no Rule 32 right of
allocution either to the defendant or to the victims, so I
think all the Rule 32 rights apply with full force in this
case, first of all, because that statute doesn't apply and
second of all, even if it did apply, it would only be the
presentence report aspect that would be excluded out of the
statute.
So for those reasons, we support the motion of the
victims for allocution.
THE COURT: All right. Mr. Cassell?
MR. CASSELL: Thank you, your Honor.
THE COURT: I think it would be helpful if we defined
exactly what is being asked for here, because the way I
understood the motion, these two people, as victims, would like
to speak at the sentencing hearing, not call witnesses or offer
information in the same sense as we would suggest that that's
like evidence at a penalty phase hearing under the death
penalty, but simply to speak. Do I read it right?
KIGHT'S AND CASH'S ARGUMENT ON MOTION FOR VICTIM ALLOCUTION
MR. CASSELL: Absolutely, your Honor. They seek the
opportunity to make a statement to the Court. That's
traditionally known as allocution.
THE COURT: Right.
MR. CASSELL: Defendants conventionally do that,
prosecutors conventionally do that, and victims have done that
at least since 1994, when Congress passed this statute
requiring this. They don't want to intrude and call witnesses
or cross-examine witnesses. They simply want to make a brief
statement. My clients estimate it would take in the
neighborhood of 10 minutes each to make a statement about the
effect of the crime on them and on their families.
And so I think much of the confusion that has been
created by the defense motion disappears when we recognize that
this is not a motion for victim testimony; this is a motion for
victim allocution, quite a separate thing.
Now, Mr. Tigar suggested the purposes of victim
allocution have already been satisfied. They have not. My
clients are seated here today. They have had no opportunity to
make a statement. We submit that that statement would be
useful for the Court in imposing an appropriate sentence; but
even if it were not, that statement will certainly be useful
for them, for their own purposes, and Congress has given them a
right in Rule 32.
Now, this statute is quite different than the statute
we had the opportunity to brief with your Honor and with the
Tenth Circuit several months ago that Mr. Tigar referred to.
That statute said that the Government shall make its
best efforts -- and we appreciate it very much -- the
Government's efforts in that case and throughout the trial.
But that statute was quite limited.
THE COURT: Yes.
MR. CASSELL: Rule 32 is different. It says that the
Court must address each victim personally.
THE COURT: Now, actually, it says if the victim is
present at the hearing, the Court must address them personally
and determine if they wish to make a statement.
Well, you know, it is one thing, your clients have
come forward through you and have identified exactly who they
are and what they want to do; and that, we can deal with, it
seems to me. What I am concerned about is given what have we
got, potentially 2,500, something like that, persons who could
qualify as victims, there would be no reasonable limits on who
would be heard and how long they would take.
The Government has procedurally attempted to assist
with that by communicating with the victims other than the two
you represent -- two persons you represent and identified who
may wish to be here, but, procedurally, it becomes a bit
awkward if we just have an open meeting and say, Anybody else
want to speak?
MR. CASSELL: Well, your Honor, this would not be an
open meeting. First of all, we represent two clients who --
THE COURT: But I mean, literally, that's what it
says. Rule 32 says that.
MR. CASSELL: Yes. Your Honor, but the open meeting
scenario is a parade of horribles that one could envision
happening in some case, but it's not the situation that's going
to happen in this case. The Government has asked all of the
witnesses: How many of you are planning to come and make a
statement? As I understand it, they received a response from
12, and they estimate the total amount of court time your Honor
would expend would be approximately 2 hours to hear from all
these victims.
THE COURT: Are you in agreement that the Court can
put that kind of a limitation on it; that it must -- these
people must identify who they are and that it's going to be
limited to allocution?
MR. CASSELL: I think there would be no problem with
the Court establishing reasonable procedures and reasonable
time limits. Certainly, if Mr. Nichols wanted to speak for
three days, your Honor could say we don't have that much time.
We are simply asking for equality here. The defendant
has an opportunity to make a reasonable statement, so should
the victims, and the same sorts of time limits and those kinds
of things can be applied.
Now, in terms of the number of people that would be
involved, again, the Government has precise information. We
need not speculate here. They have sent a letter to 2,000
victims and said there is a motion pending, if it is granted,
how many of you will travel to Denver and make a statement? We
know the answer to that question. The answer is 12. Maybe
we're off. Let's assume they were off by a factor of
50 percent and we'd be talking about roughly 20 people, an
expenditure of court time of roughly 3 hours. Given the
magnitude of this case, given the congressional directive that
victims are to play a role in the process, I think it's
entirely appropriate for the Court to apply the provisions of
Rule 32. And in any event, Congress has directed that the
provisions of Rule 32 must apply here.
The only argument we have heard from the defense is
that well, this was once a death penalty case and therefore,
the victims' provisions of Rule 32 no longer apply.
Apparently, the rules here in the District of Colorado
are somewhat freewheeling, perhaps, and perhaps the defense get
to pick out which parts of the rules apply, because I would
note that the defense has submitted a stack of letters,
essentially a defendant's allocution, pursuant to the
provisions of Rule 32 that allow them to provide information to
your Honor supporting their position at sentencing.
Again, we are not asking for any special treatment.
We are simply asking for equal treatment. The opportunity to
provide the same sort of information to your Honor. And this
is precisely what Rule 32 envisions. The statute sets out in
virtually identical terms a right of the defendant, a right of
the Government, and a right of the victim to make a statement.
And the only conceivable reason for your Honor to
depart from that is the fact that this was once a death penalty
case. That was back in January. This is now in March, and it
is no longer a death penalty case.
As the Government has pointed out -- and we agree with
everything they say -- we are now operating under the statutory
provisions for the situation in which the jury does not agree
on a death penalty recommendation. And that particular statute
is 3594. 3594 provides that otherwise -- that is, when the
jury does not agree on a death penalty -- the Court shall
impose any lesser sentence that is authorized by law.
To be authorized by law, the Court should follow the
relevant statutes and the relevant rules, Rule 32. And there
is some law on this. It's not a question of selectively
choosing which provisions to apply and which ones to ignore.
The question is are there any provisions that are positively
repugnant to the provisions in the death penalty statute? The
defense argument that there is a -- some sort of repeal by
implication.
Well, the standard for establishing that the
provisions of Rule 32 have been repealed by implication is a
very, very high one. The Tenth Circuit and the Supreme Court
have commanded that the Court should try to construe the
statutes consistently if possible. Here, there is very clearly
a consistent -- consistent construction.
The death penalty procedures were followed in January
and at sentencing procedures in March and April. We are now
reverting back to the provisions of Rule 32.
So we would urge the Court to apply the whole rule
here. There is no practical reason for ignoring it, and the
victims are certainly entitled to exercise their rights under
Rule 32.
I'd be happy to answer any questions that the Court
might have.
THE COURT: I understand your position. Thank you.
Did you have anything else, Mr. Tigar, on this point?
DEFENDANT'S REBUTTAL ARGUMENT ON MOTION FOR VICTIM ALLOCUTION
MR. TIGAR: Yes, your Honor. I -- we take exception,
of course, to the assertion that this was once a, quote, death
penalty case. What happened here -- I don't want to repeat
what I said before -- the Government made a procedural decision
how they wanted to try this case. And now what's being said is
that they can at will decide that they want to do it some other
way and that there aren't any consequences attached to
procedural choices that the Government makes.
Nowhere in Mr. Cassell's argument did I hear a
response to our concern that there is a quid pro quo here; that
when the Government seeks the death penalty, all evidence that
is to be taken into consideration for the defendant's sentence
is subject to certain procedural rights that we have to
challenge and to confronting, to know what's going to be
presented, to cross-examine, if necessary, and to present
evidence of our own.
That, it seems to me, is not implied repeal but the
same thing your Honor said about Rule 24. You -- Congress has
given us two alternative procedures here. You've got to choose
one or the other.
RULING
THE COURT: Okay. Well, the motion on behalf of
Marsha Kight and Martin Cash is granted, and I do so on the
construction made of the law that -- that is to say that we had
the hearing under 3593 and it wasn't the Government's choice as
to what happened then; it was the jury's choice of their
decision that they could not unanimously find beyond a
reasonable doubt the requisite intent to proceed with a jury
sentence. And accordingly, the effect of that is to return the
sentencing responsibility to the Court.
The Court has to proceed under 3553, the Sentencing
Reform Act, and under Rule 32; and I am of the view that
(c)(3)(E) is a part of the rule that is now applicable. As I
said in colloquy with Mr. Cassell, I think there is some
reasonable limitations that the Court can impose on this, what
I'm now calling the victims' right of allocution, and that it
be a statement; that the statement be a reasonable length and
that no witnesses will be called.
And with respect to others who are not movants here,
other than -- persons other than Ms. Kight and Mr. Cash, I
think that the Court should enter an order that any additional
persons who wish to address the Court at the time of the
sentence hearing notify the Court no later than 10 days prior
to the hearing of their intention to appear and make a
statement and that, again, the right would be limited to
allocution and by which I mean the making of a statement
without testimony or other witnesses called by the victims.
MR. MACKEY: Your Honor, do you contemplate the United
States would relay that information to the Court, or do you
want direct contact from interested victims?
THE COURT: Well, they can do it through the
Government's lawyers, yes.
MR. MACKEY: Be happy to, sir.
MR. CASSELL: Your Honor, two additional points of
clarification. One is my clients were concerned about the
possibility of cross-examination that Mr. Tigar raised. Our
understanding --
THE COURT: No, I am limiting this to a statement; and
that's not subject to cross-examination. It's subject to
argument about its significance or lack thereof but not
cross-examination.
KIGHT'S AND CASH'S ARGUMENT ON RESTITUTION
MR. CASSELL: The second question, your Honor, is that
there may be certain restitution issues that might arise in the
course of that sentencing. Our clients would like to be
involved in briefing on those issues, not to seek personal gain
for themselves but to provide suggestions to the Court as to
how best to proceed on those issues.
THE COURT: Well, I don't know wherein the obligation
of the Court to consider restitution provides for other than
contact through the probation officer or the Government's
counsel; and of course, it can be addressed in the statement.
But independently to be submitting evidence about that or that
sort of thing, I don't think that comes within the Rule.
MR. CASSELL: There is a provision that does seem to
contemplate independent victims' action recently passed by
Congress. It's 3664(k), if memory serves me correctly.
It refers to the fact that the court may, on its
motion or on motion of any party, including the victim, adjust
a payment schedule or require immediate payment in full. That
statute would seem to envision Congress' direction that victims
be involved in crafting restitution.
Our only role, your Honor, is to insure that
Mr. Nichols does not profit from his crime. And we have some
suggestions along those lines that we think would be useful for
the Court in crafting an appropriate restitution order. We
would note that there was no restitution order entered in some
other cases related to this, we think that a very large
restitution order should be entered in this case.
THE COURT: You know, when it comes to restitution,
I'm not in the habit of entering orders I don't think can be
complied with.
MR. CASSELL: The concern, your Honor, is that there
may be income potential for Mr. Nichols down the road and it
would be desirable to have in place a restitution order now so
that if he were to receive, for example, an exclusive
interview --
THE COURT: That can be the subject of a separate form
of order.
MR. CASSELL: All right. We're simply requesting the
opportunity to be involved in that process, your Honor.
THE COURT: Well, you can file whatever motions you
want to. What I do with them, I'll do after I see the motion.
MR. CASSELL: Thank you, your Honor.
DEFENDANT'S ARGUMENT ON RESTITUTION
MR. TIGAR: Your Honor, this issue, I was told for the
first time today at 11:00 this morning, might come up today.
It is an effort that has impeded our efforts to resolve the
question of return of property to Mr. and Mrs. Nichols, because
the Government is rightly concerned that this whole restitution
issue could get in the way of that process, and so these
negotiations we spoke of in chambers on February 18 are just
stalled.
I would respectfully request that if this issue is to
come up that we do set a briefing schedule so that we could get
it resolved.
The statement made here, Mr. Nichols profiting from
his crime -- I mean, I don't need to respond to that. I just
think that's an outrageous thing to say in this context. But
if this is to be an issue, we have a due process right to brief
it. I won't respond to the allegations, the innuendo here; but
I do think a schedule should be set and should be resolved
before judgment is entered if the Government and the people
with whom it works want to make an issue out of it.
PLAINTIFF'S ARGUMENT ON RESTITUTION
MS. WILKINSON: Your Honor, we have a proposal, if we
could.
THE COURT: All right. Let's hear your proposal.
MS. WILKINSON: As Mr. Tigar said, we have been trying
to negotiate a return of certain property; and as you know,
there is several complications. One is property that we have
no dispute is Mr. Nichols'. For example, his GMC truck and the
bulk of the property seized in this case which we believe
belongs to Roger Moore. And --
THE COURT: Well, there is also property that belongs
to Marife Nichols.
MS. WILKINSON: Correct. And this morning I sent a
letter to Mrs. Cain, who represents Mrs. Nichols, in response
to our promise to you to try and work out that motion; and we
said that we did not feel we were in the position to return her
property to her unless we could prove that it was her property
alone and not a joint marital asset and we would need
additional information from her. And that is because of your
power to enter an order of restitution. And we don't want to
return any property to Mr. Nichols if there is going to be an
order of restitution.
We also learned from the Bureau of Prisons that if
Mr. Nichols is eventually sent to a high-security facility at
the Bureau of Prisons, he will have the ability to work at one
of these government institutions and make money and that that
money can be set aside through a program at the Bureau of
Prisons where half of that money goes to fulfill an order of
restitution.
So as Mr. Tigar suggests, I think we need to have a
pretty quick briefing schedule on restitution, and we were
thinking if we could submit simultaneous briefs to the Court a
week from this Monday, which would be April 6, and the defense
and the Government could submit them and perhaps you could
authorize the probation department to work on the -- that
portion of the report to discuss restitution and because
normally, under Rule 32, the probation department would make
any initial recommendations to you about procedures for
restitution.
We also would keep it simple if the Court did
authorize or order restitution, try and work out something
where you wouldn't have lots of claims from different people
but where the Government, who may be entitled to restitution
for the loss of the building, could merge or assign its claims
with victims and there would be some central repository where
any restitution would be distributed so the Court would not
have to deal with those issues, but we would like some time to
work that out over this next week, if you set a briefing
schedule as we've suggested.
THE COURT: Mr. Tigar?
DEFENDANT'S FURTHER ARGUMENT ON RESTITUTION
MR. TIGAR: At the time I agreed to an April 17
sentencing date, your Honor, not a whisper had been spoken
about any such issue, not until, as I say, 11:00 this morning.
Mr. Nichols can't afford to pay $32 million to put the Murrah
Building back up. And I think it's an outrageous suggestion
that any offense of which the jury found him guilty could ever
trigger such an obligation. But I pass that now.
I respectfully suggest that the Government file its
brief whenever it wants to file it; that we be given two weeks
to respond so that we can look at these issues. This is not a
matter that needs a hurry-up. The Government proposes that the
idea that Mr. Nichols is going to be put in prison and where he
could work and whatever he gets -- I don't know what federal
prisoners make; certainly not minimum wage -- that rather than
it going to his family that that is going to be taken away from
him in a certain amount in perpetuity, because the amount of
dollars we're talking about here is beyond the power of any
individual to earn in a lifetime.
In addition to that, it is now apparent the Government
is talking about marital assets, and so on, which we submit is
simply a device to keep assets that really ought to be in the
hands of Mrs. Nichols and those kids out of their hands. So
whatever position the Government wants to take, we respectfully
submit they ought to take it, let us know what kind of a bite
they want, and then let us respond to it. I don't see that
simultaneous briefs do any good here. Every time I think I
have reached the end of a list of the things the Government
wants to impose on us, I find that I am mistaken.
I think they ought to tell us what the list is.
THE COURT: Well, I didn't anticipate that we were
going to have a quarrel about restitution; but if that's the
case, we won't set a sentencing hearing. We'll deal with
restitution and all of that separate. I can't have "and who
owns what property." If we're going to have to deal with that,
that will have to be done before any sentence hearing as well.
And I don't even know what choice of law to apply, whether it's
going to be the law of Kansas with respect to marital property
or what law. I suppose it is Kansas. That was the last place
of residence.
So if you want to have a big fight about restitution,
we'll do it; but it's going to hold things up.
Now, with respect to the presentence report, I did
direct that probation -- chief probation officer prepare a
presentence investigation report without dealing with the
relevant offense conduct and the other guideline-determinative
issues. And one was done and was submitted to counsel in draft
form. And of course, under the Rule, that's not a public
document.
Defense counsel has, by letter to Mr. Miklic, which is
the appropriate procedure, identified objections to the report.
I take it the Government has a copy of these objections.
MR. MACKEY: Yes, we do, your Honor.
THE COURT: And I don't know if the Government has a
position with respect to the objections. Frankly, nothing
that's being objected to has any bearing on the Court's
computation of the guideline range for sentencing, so I don't
have any -- I don't see any reason why we should not grant the
objections, amend the report accordingly, and -- there are two
objections, and then there is a request for additional material
to be attached. I don't have any problem with that, either.
Does the Government?
MR. MACKEY: Your Honor, I wonder if I'd have
permission to review it and submit a letter to Mr. Miklic by
Friday.
THE COURT: All right. Well, if we can't set a
sentencing date today, I guess we can do that.
MR. TIGAR: Yes, your Honor. With respect to the
matter that now remains on the Court's list, Mr. Thurschwell's
will take the lion's share of the argument and I would like the
"tiger's" share at the end of his, but very briefly.
THE COURT: All right. Well, I'll tell you, I have
reviewed all that has been filed on the papers with respect to
guideline interpretation and application and have a viewpoint
of it that again may move things along, but we'll take a 20-
minute recess beforehand and see -- I don't think we need to
argue the same things that are already there in the briefs. I
have the briefs, and that's the purpose of filing them, so that
I can read them.
MR. TIGAR: Would your Honor -- if your Honor could
share a tentative view with us, I know that that would
certainly shorten our presentation.
THE COURT: I'll take a 20-minute recess first.
MR. TIGAR: Thank you, your Honor.
(Recess at 2:55 p.m.)
(Reconvened at 3:15 p.m.)
THE COURT: Be seated, please. As I indicated before
the recess, I've reviewed the positions taken in the papers
filed concerning the guidelines here, the defendant's guideline
sentencing memorandum of February 9, the brief of the
Government also filed February 9, then the additional briefing
filed by both sides on February 23, which are responses, and
also looked at the law myself. And I think it would expedite
matters and assist counsel if I outlined for you my view; and
then to the extent that you wish to disagree with it, you have
the opportunity to do so before making any ruling.
The analysis that I suggest is that the offense of
conviction here, of course, under Count One is the 2332(a)
conspiracy to use a weapon of mass destruction against persons
within the United States and against property of the United
States, as well as the eight counts of involuntary
manslaughter.
With respect to the first count, the conspiracy count,
that statute provides for punishment by imprisonment for a term
of years or for life and, if death results, by death or
imprisoned for any term of years or for life.
We had special interrogatories to the jury with
respect to death results and the foreseeability of the deaths,
and those were answered yes. It is for that reason that we
went to a sentence hearing with the jury under the Death
Penalty Act as required by the fact that we had a notice of
death penalty and proceeded under 3591 of Title 18 with the
hearing prescribed by 3593.
After submission of the issues to the jury, the jury
returned a verdict in which they found that -- or could not
find unanimously and beyond a reasonable doubt that the
necessary intention under 3591(2)(C) or (D), which were the two
submitted to the jury existed. The effect of that was to
eliminate the death penalty. And by my interpretation, at
least, present the matter for sentencing to the Court.
As I've already indicated earlier this afternoon,
that, to me, means that the Court must proceed under the
Sentencing Reform Act, 3553 of Title 18, consider under sub (a)
of that statute the factors to be considered in the imposition
of a sentence, and, of course, under sub (b) require
consideration of the guidelines. And the parties have
submitted their views about the applicability of the
guidelines, and it has been agreed that the 1994 guidelines
manual is the applicable guidelines for this case.
1B1.1(a) directs that the first step is to determine
the applicable offense guideline from Chapter 2. You go to the
index to determine what portion of Chapter 2 is to be followed;
and, of course, the statutory index in Appendix A did not
include this offense 2332(a) as a listed offense; therefore,
there is no Chapter 2 guideline to apply.
Now, the Sentencing Commission then refers -- asks the
court to refer to the most analogous offense guideline. That's
the provision in 2X5.1, which says a felony for which no
guideline expressly has been promulgated, apply the most
analogous offense guideline and further provides if there is
not a sufficiently analogous guideline, the provisions of 18
United States Code 3553(b) shall control except that any
guidelines and policy statements that can be applied
meaningfully in the absence of a Chapter 2 offense guideline
shall remain applicable.
The Government suggested that 2A1.1, first-degree
murder, be the analogous guideline; and the defense thinks that
2K1.4, the arson and explosives offense, be used.
And the Government's position is that 2A1.1 is
applicable because of the application notes dealing with felony
murder doctrine and that while the case, of course, was not
tried on felony murder theory or approach and felony murder
was, of course, not submitted to the jury, the situation now is
different because we're not looking at the liability; we're
looking at the punishment that is appropriate.
I am inclined to agree with the Government on the
2A1.1 as being the most analogous offense because of the deaths
resulting and the foreseeability of them and the fact that
deaths resulted in the course of the commission of a felony.
So that would give us a base offense level of 43. But
I also, independently of looking at the most analogous
guideline in following the directions under 2X5.1 -- if we say
there is not a sufficiently analogous guideline, then we simply
go to 3553(b). And 3553(b) says in the absence of an
applicable sentencing guideline, the court shall impose an
appropriate sentence having due regard for the purposes set
forth in subsection (a)(2). In absence of an applicable
sentencing guideline in the case of an offense other than a
petty offense, the court shall also have due regard for the
relationship of the sentence imposed to the sentence prescribed
by guidelines applicability to similar offenses and offenders
and to the applicable policy statements of the Sentencing
Commission.
3553(a)(2) instructs that if we weren't sentencing
under the guidelines, the court should consider the need for
the sentence imposed (a) to reflect the seriousness of the
offense, to promote respect for the law and to provide just
punishment for the offense and (b) to afford adequate
deterrence to criminal conduct. Then (c) and (d) relate to
protect the public from further crimes of the defendant and (d)
to provide the defendant with needed educational or vocational
training. In this case, (a) and (b) would be the factors to be
considered primarily. And it's my preliminary view that a life
sentence is the appropriate sentence under (a) and (b).
Now, the guidelines that we have and the sentencing
statute, I think, require consideration of the adjustments,
because the adjustments part of the sentencing guideline system
applies regardless of what the base offense level is. And it's
agreed here, as I read the papers, that the three-level
increase under 3A1.2 is required because of the official
victims; that is to say, that the victims were government
employees and law enforcement officers, but principally, the
official relationship of the victims to the government.
Also, with respect to the involuntary manslaughter
counts, because the base offense level there is more than 10
levels away from the rule -- or from the 43 level, there is no
grouping adjustment applicable in this case; so we deal with
the Count One base offense level.
There is no dispute about the criminal history
category. There is no prior record here. The criminal history
category is I.
The Government has suggested additional adjustments,
the 3A1.1, vulnerable victims based both with respect -- on the
fact of the children and the nature of the building, its glass
structure and so forth -- I'm not inclined to add that
adjustment -- and the obstruction or impeding the
administration of justice. And the defense has outlined the
limitations of that.
It's difficult to sort out what there is there as far
as when it becomes applicable. You have to know that there is
an investigation, you have to obstruct it; and it seems to me
those things that are being asked to be -- to form a basis for
that adjustment are really part of the offense conduct in the
case, so that I would not be inclined to add that two levels.
Therefore, by my view, the adjusted offense level is
the 43 and 3, for a total of 46.
Now, the Government also suggested in its submission
that the Court could arrive at a life sentence or a greater
base offense level than 43, even, by considering making
findings, specific findings with respect to the relevant
offense conduct and as set out here, some specifics, purchases
of ammonium nitrate, quarry burglary, and the like. It seems
to me to be unnecessary for the Court to go through the
evidence and make findings with respect to those factors. We
have, you know -- 43 itself calls for a life sentence, so I see
no purpose in us going -- sifting through all of the evidence
now again and arguing about whether by a preponderance of the
evidence -- and I recognize what the Government is saying --
the court is not bound by a jury verdict with respect to that
because the standard of proof is different. But I see no value
to it.
Now, the issues of whether there should be upward or
downward departures is a separate thing entirely, and it's not
an appropriate thing to address now. That is a part of the
sentencing hearing. But what I asked be done here -- and this
briefing was submitted at my request, so that we could
establish the presumption -- presumptive sentence in terms of
the application of the guidelines for the factors under 3553 in
advance of the sentence hearing and not burden that hearing
with this kind of a dispute.
So that's where I come out. And I'm ready to hear
from counsel about that. And I guess the Government goes
first, as it usually does.
Mr. Connelly.
PLAINTIFF'S ARGUMENT ON SENTENCING GUIDELINES
MR. CONNELLY: Thank you, your Honor.
We agree with the Court that the most analogous
guideline in this case is Section 2A1.1, the first-degree
murder guideline; and we agree that the Court -- with the
Court's procedure that it went directly to that guideline. I
think there are other ways to get there; and certainly, there
are alternatives that can be argued as a matter of law to get
there; but we agree with the Court that that is the appropriate
beginning point, and we certainly agree with the Court that the
beginning point under that guideline is a base offense level of
43 and even at that unadjusted level would require a sentence
of life imprisonment.
I think before even you get to adjustments -- and I'm
not going to reargue our obstruction or our vulnerable victim
adjustments. I think those positions are preserved on the
record.
THE COURT: Yes.
MR. CONNELLY: Even before you get to adjustments such
as the official victim adjustment, I think there is, under the
application notes to that section, a discretionary authority to
depart downward, and I'm not going to argue with the Court at
this juncture whether the Court should or should not.
I think there is one finding that can be made that
should not be made in this case; and that is under the
application note, the only basis for downward departure, or the
most recommended basis is if the defendant should show there
was a lack of intent to kill. And I think under the Tenth
Circuit case law, the party seeking a downward departure has
the burden of proof on that, just as the party seeking an
upward departure -- typically, the Government -- would have the
burden of proof by a preponderance of evidence as to that.
The only reason we argued specific facts to the Court
and asked for findings on them -- for example, what
Mr. Nichols' role in the conspiracy was and what he did or did
not do -- was insofar as it bore on the issue of intent to
kill. And I think that is a finding, that is a guideline
finding that should be made by the Court; that by a
preponderance of the evidence, Mr. Nichols had the intent to
kill and that would therefore preclude a departure on that
basis under the application note to Section 2A1.1. And I'm not
sure --
THE COURT: Well, I'm not going to really address
departures now.
MR. CONNELLY: Is that a subject the Court would want
to hear at sentencing in terms --
THE COURT: I'll hear that at sentencing.
MR. CONNELLY: Okay. I --
THE COURT: I don't consider that there be an
evidentiary hearing on that. The evidence is in upon which
we'd make that finding.
MR. CONNELLY: And I don't think either side is asking
for an evidentiary hearing. I think both sides agree with your
Honor that the evidence is in on that, and that finding can be
made or not made based on the evidence there.
And we've also cited case law that that basis for
departure is not a mandatory one, even if the Court were to
make a finding; so with that, your Honor, we agree that a life
sentence is the appropriate beginning point; we would say
ending point, as well, but we can discuss the departure issues
at a later date.
THE COURT: Right. That will be for the sentencing
hearing.
Well, Mr. Thurschwell, I'm not suggesting that you
should agree with this, because I know you don't from the
position taken in the papers filed. And as I've already
indicated, the argument made or the suggestion made is that the
arson, 2K1.4, is the most analogous guideline.
DEFENDANT'S ARGUMENT ON SENTENCING GUIDELINES
MR. THURSCHWELL: That is correct, your Honor. And
let me try to expand on our reasons for disagreement with
specific reference to the route that your Honor is taking to
Section 2A1.1.
THE COURT: Okay.
MR. THURSCHWELL: The Government suggested various
routes to that first-degree murder guideline which results in a
level 43 result. And your Honor, as I understand it, has -- is
basing your decision that this is the applicable -- most
applicable guideline on the fact that the deaths were (1)
foreseeable as found by the jury and (2) that it was committed
during another felony, which would place it apparently in the
felony murder category, which is covered by the 2A1.1
guideline.
THE COURT: Right.
MR. THURSCHWELL: Your Honor, we would submit --
THE COURT: And also, that this was one of the
objectives of the conspiracy.
MR. THURSCHWELL: Your Honor, we would strongly
disagree with --
THE COURT: Well, that's what the jury found, isn't
it?
MR. THURSCHWELL: Well, your Honor, I think I would
hesitate to make the kinds of findings that the Government is
suggesting to you with respect to Mr. Nichols' intent to kill,
at least --
THE COURT: I'm not talking about the intent to kill.
I'm talking about that killing resulted in the -- and was one
of the objectives of the conspiracy which Mr. Nichols
participated in. What his individual intent was is a separate
item.
MR. THURSCHWELL: All right. Well, your Honor, I
would still add that the instructions on the conspiracy count
were ambiguous --
THE COURT: Well, I don't think they were.
MR. THURSCHWELL: But to the extent that, apparently,
one of the objectives of the conspiracy was the use of a bomb
against the building and the people, while, at the same time,
the jury was being told that it specifically did not have to
find an intent to kill to convict on Count One --
THE COURT: Yeah. Well, you can argue that to the
Court of the appeals.
MR. THURSCHWELL: Okay. I understand that.
But let me address your Honor's route to 2A1.1.
THE COURT: Right.
MR. THURSCHWELL: The problem with approaching it in
this way is that what the Court is doing, following the
Government's suggestion, is looking to the underlying offense
conduct, rather than as required by Section 1 -- 1B1.2, the
offense of conviction as the starting point for any guidelines
analysis. Section 1.1B2(a) (sic) says determine the offense
guideline section in Chapter 2 offense conduct most applicable
to the offense -- excuse me -- most applicable to the offense
of conviction; i.e., the offense conduct charged in the count
of the indictment or information of which the defendant was
convicted.
Now, that language on its face looks to the specific
statutory charge that was leveled in the indictment or
information against the defendant as the basis for looking for
the most analogous applicable guideline.
We can be sure that that's what the commission had in
mind, because in subchapter 1, the introduction and general
application principles, subchapter 4 of that, there is a
discussion of the choices made by the commissioners in
formulating the guidelines; and one of the most significant was
whether or not to look to the charge or look to the underlying
actual real -- quote, "real conduct "of the defendant in
establishing the basis for selecting the applicable guideline.
Given that language, given the requirement of Section
1.1 -- 1B1.2 that you look to the offense of conviction, what
we are required to do is look to the -- the guideline that
addresses the offense -- the offense, statutory offense most
analogous to the offense of conviction; in this case,
conspiracy to commit Section 2332(a), that violation.
And I would add, your Honor, there would be no point
in including in the guidelines the statutory index which
relates statutory sections, not conduct, to specific
guidelines, if the preferred method was to look at the
underlying conduct. So I think that really, the only -- the
place that one has to start is at the arson by means of
explosive guideline, 1 -- 1K1.4, because that is -- I don't
think there would be dispute from the Government -- is the most
analogous statutory provision, criminalizing the kind of
conduct criminalized by Section --
THE COURT: Well, this conspiracy stands alone. This
is not the conspiracy to commit arson. It's not a 371
conspiracy. This conspiracy is a separate crime under 2332(a).
MR. THURSCHWELL: That's correct, your Honor.
THE COURT: And 2332(a) was not addressed at all by
the Sentencing Commission.
MR. THURSCHWELL: It was not, but conspiracy was.
And --
THE COURT: But there is a difference between the
conspiracy to commit another offense and this type of
conspiracy.
MR. THURSCHWELL: Your Honor, I'll --
THE COURT: That's my point.
MR. THURSCHWELL: Okay. I understand that, your
Honor. Our position would be that by the route taken, 2K1.4 is
that you look first to the conspiracy guideline which then
takes you to the underlying substantive objective --
THE COURT: I thought that was your position.
MR. THURSCHWELL: -- and that's the route.
Let me just add, your Honor, we obviously don't
dispute many of the Court's rulings. There is no criminal
history. Category I is appropriate. There is no grouping
adjustment under any guidelines calculation, including the ones
that we suggest. We agree that vulnerable victims and
obstruction or impeding of the investigation are not
appropriate upward adjustments.
We -- I hesitate -- I want to respond to the
Government's suggestion that the Court find an intent to kill
as the basis ultimately for departing upward or for not
departing downward.
THE COURT: Yes, but you know I'm deferring that to
the sentence hearing.
MR. THURSCHWELL: I understand that, your Honor. And
I will not address that at length. I will simply note for the
record (1) -- I mean in the alternative, should the Court abide
by its preliminary decision that 2A1.1 is the appropriate
guideline, we do believe that the downward -- maximum downward
departure would be appropriate and for the reasons stated in
the brief, specifically the findings by the sentencing jury or
the failure to find by the sentencing jury of an intent to kill
on the part of Mr. Nichols is binding both as a matter of
constitutional double jeopardy right and as a matter of
statutory right, since the -- collateral estoppel statutory
right -- since the Government has had one chance to establish
that specific fact in a prior proceeding and failed to do so
and that therefore, a finding of intent to kill is therefore
not available to the Court at this stage of the proceeding.
THE COURT: All right. Mr. Tigar, yes.
MR. TIGAR: May I address the Court briefly with
another approach on this, your Honor?
We appreciate the effort that the Court has made to
parse these difficult issues. I wanted to look at this from a
somewhat different point of view and pick up on what
Mr. Thurschwell said. We appreciate, also, that the Court is
attempting with all of us to understand what the jury did here
and to give effect to what the jury did and what declaration it
made about what happened and the severity of what happened and
Mr. Nichols' role in it.
I would note to begin with that the question about the
foreseeability of death resulting might have been better
phrased by all of us; that is to say, the question was phrased
in the passive voice. Of course, death was foreseeable to
somebody; that is, if Mr. McVeigh went down there with a Ryder
truck, as the jury found that he did, and looked up at that
building and set the bomb off in company with his accomplice,
then that was foreseeable.
But the question the jury answered was in the passive
voice. They didn't answer a question that Terry Nichols had
any foreseeability. Now, of course, the foreseeability
question was with respect to Count Three, really, because of
the proximate cause requirement but that had the jury found him
guilty under Count Three, then, of course, the question -- that
foreseeability question would have hooked up with that guilty
finding and permitted the Court to say that the proximate cause
requirement was satisfied. So we don't have a jury finding
with respect to proximate cause.
Now, the next thing we have here is that the jury was
asked only in one set of counts to make a determination
concerning intent with respect to resulting death. That's the
other counts.
Your Honor quite rightly responds to that: No, I'm
going to look at this as first-degree felony murder.
Let me discuss that. And your Honor says also this is
not a 371 conspiracy; it's a standalone conspiracy statute and
therefore, the Court is entitled to take a somewhat different
approach.
Let me suggest historically that that's not so; that
is, we're not without a rudder here. Section 1111, since the
dawn of the republic, has provided in compliance with what the
Pennsylvania law had done about common-law murder that
first-degree murder consists of murder by premeditation,
poison, or lying in wait, or murder in the course of any of the
enumerated felonies. And therefore, one would assume that
murder that is not one of those enumerated kinds is
second-degree murder. And at common law, that was the case;
that is to say, murder in the course of any other felony or a
homicide in the course of any other felony was felony murder.
The trouble, of course, is that conspiracy was a
misdemeanor at common law; so if we look at the very backdrop
of substantive criminal law procedures here, it simply defies
reason, logic, history, and precedent to say that a standalone
conspiracy -- let's start with that -- could ever be a felony
murder predicate. So -- and therefore, it doesn't make any
sense to attribute either to Congress in the sentencing
guideline statutes or to the writers of the guidelines any
intention that guilt of conspiracy could be a predicate for
jumping to an analogy because, of course, it's all analogy.
There is no specific guideline. We've acknowledged that --
that says that this is the same as first-degree felony murder.
Yes, we would say; no, Congress has now made conspiracy a
felony.
But, I defy anyone to come up with a precedent that
says that a conviction of a conspiracy without a finding of
intent to kill as a part of the conspiracy, which we don't have
here -- and yes, we can tell the Tenth Circuit about it, but
now we're talking about the guideline -- is a predicate for a
felony murder determination. I just don't know of any case
that holds that. I don't know of any law review commentator
that has ever talked about it. I don't know of a basis on
which you could say it.
THE COURT: Well, there is a distinction, of course,
between the death penalty jurisprudence dealing with the felony
murder doctrine and what we're doing here.
MR. TIGAR: Yes, your Honor. Of course, your Honor
and I'm deliberately not relying on that. The Supreme Court
granted certiorari in Middlebrook vs. Tennessee, then dismissed
the writ as improvidently granted, so we really don't have any
suggestions except the suggestions in Cabana vs. Bullock. I'm
suggesting as a matter of criminal law -- I'm trying to say
gently I think your Honor is mistaken, and I think your Honor
is mistaken as a result of the analysis of the history of
substantive criminal law.
Then we could ask ourselves the question: Isn't it
different here because Congress has passed a special conspiracy
statute with respect to particular intent?
But let's look at the kinds of statutes that this
looks like. For instance, the 844 offense; you know, arson
against a federal building. There is an offense in which if
you use a kind of a weapon against a federal building, it could
be arson. The "weapon of mass destruction" language has always
been frightening to me to read. It's like calling somebody a
racketeer. But a weapon of mass destruction could be something
as small as a pipe bomb.
A person convicted of this conspiracy -- that is to
say, under the law and under the instructions as given -- have
agreed only to use a weapon of relatively small dimension
against people and property. And that weapon of relatively
small dimension need not therefore have necessarily, under the
jury's verdict, raised a risk of death.
So therefore, whether we look at it as 2332(a) and
what it looks like most under the underlying statute, or
whether we look at it as a matter of history, it really doesn't
make sense.
And then, your Honor, I respectfully suggest that in
putting this together, in choosing, your Honor said that if you
weren't going to go with the guideline, you were going to look
at the statute and you were going to look at the provisions
that talked about affording adequate deterrence, reflecting the
seriousness of offense, promoting respect for law.
THE COURT: Right.
MR. TIGAR: And those, of course, are legitimate
concerns. And here is where our statement, our argument to
your Honor, that respect for the jury's verdict requires
consideration of what else it did other than Count One, becomes
important, because the jury twice addressed the question of
what this defendant's intent was with respect to resulting
deaths. Why did they do it twice? Well, I won't repeat what I
said earlier. We had asked that we stop at the end of the
innocence phase and do something else, but we went ahead. The
Government had told the Court that all of the consideration
with respect to any culpable intent concerning resulting death
was going to take place in the second phase. And your Honor
agreed with that position, saying, in effect, that this is a
weighing statute, the death penalty statute, and because it's a
weighing statute, that blows back, as it were, to
interpretation of the offense charged in the indictment and
says that the Government can defer consideration of culpable
intent with respect to resulting death.
So the jury addressed it twice. Now, the first time
it did, it found only an involuntary-manslaughter intent with
respect to resulting death. That's the only thing we have.
And second, your Honor, it did what it did when your
Honor determined that they were unable to agree unanimously and
beyond a reasonable doubt with respect even to the relatively
minor, in contrast with the (a) and (b) ones, levels of intent
concerning resulting death that were submitted to them, so that
under the jury's verdict, your Honor, whether you look to an
analogous guideline or whether you look to the statute, it's
simply inappropriate to choose a statutory benchmark that
assumes a high degree at least of indifference to the prospect
of resulting death, because the felony murder doctrine, to
begin with, is much criticized. No wonder the Government
didn't try to press it on the Court at the guilt phase; but at
the very least, all the commentators say the better rule is
that you don't impose felony murder-type punishment on someone
unless they're proven to have had this high degree of awareness
of a risk that death could result and a degree, indeed, that at
common law would have been equivalent to malice aforethought.
So I -- I don't want to belabor the point, your Honor;
but I respectfully suggest that the Court is starting from a
premise that disrespects the history of the felony murder
doctrine, disrespects what we regard as the seriousness of
legitimate felony murder cases, of which we would submit this
is not one, and risks disrespecting the findings that the jury
made in the innocence phase and the finding that the jury made
over our objection in the second phase.
THE COURT: Well, but what we're -- are you suggesting
that before a life sentence can be imposed, there has to be an
intent to kill?
MR. TIGAR: No, your Honor, I am not suggesting that
there has to be an intent to kill; that is -- and for these
purposes. I don't want to waive my contention about your
Honor's instructions on Count One.
THE COURT: No, I understand.
MR. TIGAR: But, at the very least to choose a felony
murder guideline, you would have to satisfy yourself of offense
conduct that at common law would have been regarded as
equivalent to implied malice. I mean, the rationale -- the
common-law rationale for the felony murder doctrine was that
participation in the dangerous felony created such a risk of
death to others that you were justified in saying that that
took the place of malice aforethought.
THE COURT: But suppose we look at the alternative,
rather than the felony murder doctrine, and go the 3553
factors.
MR. TIGAR: Yes, your Honor.
THE COURT: Now, Congress could -- you know, I learned
recently of a state that imposes a life sentence for possession
of 938 grams of cocaine. It can do that, can't it? It can
impose a life sentence for crimes so long as it doesn't come
under the restriction of the Constitution; that this --
MR. TIGAR: There is some --
THE COURT: -- you know, doesn't correlate.
MR. TIGAR: There is some minimal proportionality
review here, your Honor.
THE COURT: Yeah.
MR. TIGAR: I'm not stepping away from the guideline
simply on the matter of proportionality. Suppose your Honor
believed based upon a review of the evidence that the conduct
here was severe enough that you ought to be up in that
territory, and that's the question your Honor is asking.
THE COURT: That's right. Is there any reason that
can't be done?
MR. TIGAR: Yes. Yes, your Honor, there is. And I
would say that when the jury has found, has evaluated the
conduct -- and if we try to make sense of the jury's verdict,
we would argue that in making sense of the jury's verdict, you
can't be in that territory. But suppose your Honor says no, I
don't, counsel for the defense, accept your view of what Judge
Matsch can do about the jury's verdict. If your Honor
chooses -- and in the past, in the Allen Berg case, your Honor,
where Allen Berg was killed, your Honor said that's serious
conduct and you imposed sentences that reflected your Honor's
view of that. The guidelines let you get there. The
guidelines let your Honor express those views about the
seriousness of this conduct by means of departures. That would
be the upward departure route.
All I'm arguing -- but I'm not going to talk about
upward departure --
THE COURT: Well, that case, was, of course, in those
good days before guidelines.
MR. TIGAR: Yes, I know, your Honor. And that's one
of those difficulties.
With respect to your Honor's example about the 938
grams of cocaine, just because it's constitutional to do a
foolish thing -- and I think that is a foolish sentence, your
Honor, and I think a lot of judges in states like the state
where I happen to live now agree with that. It's filling up
the jails unnecessarily. But your Honor can get there if you
regard the conduct as serious by saying I take a base level
that reflects a decent respect for the history of these
offenses. Now I look at these other factors, and then we can
argue; but what I suggest your Honor has done by starting at
the top is dramatically to shift the burden to us to try to
argue it back down.
Well, that's the procedural consequence of it; and if
that's where we are, then, by golly, we'll be here and we will
argue it back down. And we've got a lot of arguments and a lot
of evidence to make about it; but I suggest to --
THE COURT: You mean within the evidence that we
already have.
MR. TIGAR: Within the evidence we already have.
Believe me, your Honor, we're not going to show up and do what
we've already said others should not be able to.
THE COURT: Okay.
MR. TIGAR: But what we do say is that we ought to
start with a base level that reflects -- that respects what the
jury does and also reflects what we -- what we say is the
structure of criminal law. That's what I wanted to add to what
Mr. Thurschwell said.
RULING
THE COURT: All right. Thank you.
Well, I'm not persuaded to the contrary of my
presumptive analysis; and therefore, we are, at the sentencing
hearing, going to start with the base Offense Level 46 and the
Criminal History Category I.
Now, the law of departures is a bit changed, I think,
by Koon against the United States from what some circuits
thought it was before then. And I think that the Supreme Court
in that case recognized that there is more substance to the
Court's power to depart than simply these numbering -- the
numbers under the guidelines. And while 5K1.1 and the rest of
that chapter -- I guess it goes to 2.16 -- provides the
Sentencing Commission's views of encouraged and discouraged
factors for the court to consider in departures either up or
down, the Supreme Court in the language that I think
particularly deserves attention gave the four questions that a
court should ask before making a departure, which is to
consider what the Sentencing Commission has said but then also
recognizes that there are unusual cases that simply do not come
within the contemplation of the Commission, both with respect
to setting offense levels upward and downward adjustment levels
and also departure levels.
Now, I don't think that the Sentencing Commission
could possibly have in mind the facts of this case when they
did their work. So I think we have, by definition, an unusual
case and that I would expect to hear from counsel at the
sentencing hearing about departures, either upward or downward;
and that will certainly be one of the prime subjects of that
hearing as I foresee it.
And the Government has already indicated its intent to
argue about the intent to kill and the defense the obverse of
that; but one of the things that I think is always a
possibility, sentencing guidelines or not, for a court to
consider is the defendant's position with respect to the crime.
Here, you know, acceptance of responsibility and the
guideline about that, two- or three-level, is not of particular
value, given the high level we start with. But it has been
mentioned here that -- and certainly was mentioned at the trial
that there are, as a result of the investigation and the
presentation of the evidence in this case, a number of
questions unanswered. And it was indicated, talking about the
discovery matters this afternoon, that I expect the Government
is continuing its investigation to attempt to answer some of
those unanswered questions. And I don't, you know -- if the
defendant in this case, Mr. Nichols, comes forward with answers
or information leading to answers to some of these questions,
it would be something that the Court can consider in imposing
the final sentence.
Now, we have this problem of setting a date for the
sentencing hearing. And I had anticipated the date of April 17
and Mr. Tigar indicated, as -- that I talked with counsel about
that as a possible date if we were to proceed with sentencing.
Now we have this issue of restitution which clouds that; so I
don't know that we can do more except set the time for the
briefing on the restitution issues and see what kind of a
hearing we're going to have to have on that before we can
proceed to the final sentencing.
So I'll set April 6 -- you said you could be ready by
April 6 for the Government.
MS. WILKINSON: Yes, we can, your Honor.
THE COURT: I don't know if Mr. Cassell is coming in
on that with you or not, but I'll set April 6 for whatever is
to be filed in terms of restitution and then give the
defense -- two weeks, you asked for.
MR. TIGAR: Yes, your Honor. We'd ask for two weeks.
THE COURT: Which is then, I guess, the 20th.
MR. TIGAR: Yes, your Honor.
THE COURT: And we'll have to see where we go from
there.
MR. TIGAR: Your Honor, may I make a statement in
light of what your Honor just said?
THE COURT: Yes.
MR. TIGAR: Because what your Honor just said about
the defendant coming forward may attract some media attention.
THE COURT: Well, I didn't say it for that purpose.
MR. TIGAR: I understand that, your Honor; but I
want -- and it's not our practice to go talk to the media about
things like this. Let me make our view clear of this. It is
as yet undecided whether Mr. Nichols faces proceedings in
Oklahoma. From the beginning of this case down to this day,
that prospect and the prospect that whatever words he utters
then fall into hands that do not have his best intentions at
heart has constrained us. And we will address this matter more
at the time of sentencing and we will consider your Honor's
words carefully, but I hope it's understood that we don't labor
here, you know, without those constraints.
THE COURT: Yes. I understand what you're saying,
Mr. Tigar. And of course, that's a matter beyond my control,
as well. But I would think those who do have the discretion in
the matter would consider as applicable to any decision they
make the forthcoming -- providing information that's helpful in
answering the additional questions.
MR. TIGAR: Yes, your Honor.
THE COURT: That's not a matter that neither you nor I
can control.
MR. TIGAR: I understand that.
And the second, your Honor, is I had understood from
the United States that their investigation is now concluded
once judgment is entered in this case, so I don't know that
there is an ongoing federal investigation. And if the
Government can provide us with any information about whether
there is, we will gratefully receive it.
THE COURT: Well, I'm not going to call on counsel to
answer that; but it would be disappointing to me if the law
enforcement agencies of the United States Government have quit
looking for answers in this Oklahoma bombing tragedy.
MR. MACKEY: We continue to work, Judge.
THE COURT: All right.
Well, we'll proceed on the briefing schedule and see
what follows from that.
Thank you.
(Recess at 4:03 p.m.)
* * * * *
INDEX
Item Page
Defendant's Argument on Motion for New Trial
Plaintiff's Argument on Motion for New Trial
Defendant's Rebuttal Argument on Motion for New Trial 20
Plaintiff's Surrebuttal Argument on Motion for New Trial 24
Defendant's Further Argument on Motion for New Trial 26
Plaintiff's Further Argument on Motion for New Trial 28
Rulings
Defendant's Argument on Motion for Victim Allocution 33
Plaintiff's Argument on Motion for Victim Allocution 43
Kight's and Cash's Argument on Motion for Victim Allocution 45
Defendant's Rebuttal Argument on Motion for
Victim Allocution
Ruling
Kight's and Cash's Argument on Restitution
Defendant's Argument on Restitution
Plaintiff's Argument on Restitution
Defendant's Further Argument on Restitution
Plaintiff's Argument on Sentencing Guidelines
Defendant's Argument on Sentencing Guidelines
Ruling
* * * * *
REPORTER'S CERTIFICATE
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter. Dated
at Denver, Colorado, this 25th day of March, 1998.
_______________________________
Paul A. Zuckerman
