The Oklahoma City Bombing Trial: Restitution Hearing for Terry Nichols
Wednesday, May 13, 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 13th day of May,
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
LARRY MACKEY, SEAN CONNELLY, BETH WILKINSON, AITAN
GOELMAN, and KRISTINE TOLVSTAD, Special Attorneys to the U.S.
Attorney General, 1961 Stout Street, Suite 1200, Denver,
Colorado, 80294, appearing for the plaintiff.
MICHAEL TIGAR, ADAM THURSCHWELL, REID NEUREITER, JANE
TIGAR, and SUSAN FOREMAN, Attorneys at Law, 1120 Lincoln
Street, Suite 1308, Denver, Colorado, 80203, appearing for
Defendant Nichols.
KARAN BHATIA, 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.
NORMAN S. EARLY, JR., Attorney at Law, 3598 South
Hillcrest, Denver, Colorado, 80237, appearing for Marsha Kight
and Martin Cash.
MAUREEN CAIN, Attorney at Law, 150 East Tenth Avenue,
Denver, Colorado, 80203-2740, appearing for Marife Nichols.
* * * * *
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. And we're here as a result of an order
entered April 21, setting this hearing for consideration of the
briefing that began with the brief of the United States
regarding restitution and the motion of victims for compliance
with revised Rule 32 and mandatory restitution provisions.
Also, I don't know how far we'll get with it, but we
have the motion from Marife Torres Nichols for return of
property which was supplemented, supplemental motion, and now
since the hearing was set a motion by Mr. Nichols, also for
return of property.
Appearances.
MR. MACKEY: Good afternoon, your Honor.
THE COURT: Good afternoon, Mr. Mackey.
MR. MACKEY: Larry Mackey on behalf of the Government.
With me, your Honor, is Ms. Beth Wilkinson; and she'll make the
presentation concerning restitution, Rule 41; also, Mr. Sean
Connelly; also for the Government Ms. Kristin Tolvstad,
T-O-L-V-S-T-A-D, and Mr. Aitan Goelman.
THE COURT: And Mr. Tigar?
MR. TIGAR: Good afternoon, your Honor. Michael Tigar
for Terry Lynn Nichols. Mr. Nichols is present in court.
With us today is Adam Thurschwell, Reid Neureiter,
Susan Foreman, and Jane Tigar.
THE COURT: All right. And Ms. Cain for Ms. Nichols?
MS. CAIN: Yes, your Honor. Maureen Cain, spelled
C-A-I-N, on behalf of Mrs. Nichols.
THE COURT: Mr. Cassell?
MR. CASSELL: Good afternoon, your Honor. Paul
Cassell, along with Karan Bhatia and Norm Early, representing
Marsha Kight and Martin Cash today.
THE COURT: All right. I think we might divide these
issues a bit and start with the question of the applicability
of the Mandatory Victims Restitution Act, a part of public law
104-132, enacted in 1996 and therefore subsequent to the time
involved in the conspiracy in this case.
There has been briefing on that issue, of course. The
difference here between that statute and the Victim and Witness
Protection Act, preexisting, which is in 3663, and the new
mandatory act in 3663(a) and 3556 -- the difference between the
two statutes, as I see it fundamentally, is one is
discretionary, the other is mandatory.
With respect to the mandatory provisions in the 1996
act, the court is not to consider ability to pay, present
assets, or future ability to pay and must consider the impact
of the crime on victims.
So I'll hear further from counsel on that. As I say,
I think the issue has been briefed extensively and the relevant
cases cited. And the disagreement, of course, about what, if
any, relevance the Tenth Circuit opinion in the U.S. vs.
Hampshire case has for this; and the issue that has been raised
by the defense as to the inapplicability of the act is that it
would constitute ex post facto legislation, a violation of the
constitutional prohibition on ex post facto laws. And the
Government, as I understand it, conceded that --
MS. WILKINSON: That's correct, your Honor.
THE COURT: -- in its paper. So I guess we turn to
Mr. Cassell on that.
RESTITUTION: EX POST FACTO ISSUE
KIGHT'S AND CASH'S ARGUMENT
MR. CASSELL: Thank you, your Honor.
Well, your Honor, just by way of brief introduction,
the Defendant Nichols apparently agrees that he has significant
earning potential in the form of some sort of story that he
might sell to tabloid journalists. His solution to that
problem is what I think can be --
THE COURT: Well, I'm not talking about that. I'm
talking about the legal issue as to whether the Mandatory
Victim Restitution Act is applicable in this case.
MR. CASSELL: Yes. It is applicable, your Honor.
First of all, the statutory terms apply; and the only question
is the ex post facto question that you highlighted.
U.S. vs. Hampshire is of considerable help to us here.
Hampshire decided in 1996 that the Victim Witness Protection
Act could be applied retrospectively; and the 1996 amendments
that your Honor referred to are, of course, procedural
amendments to the Victim Witness Protection Act.
Now, Hampshire -- Hampshire -- the Hampshire opinion
gives us two reasons for believing that ex post facto
considerations do not apply here. First of all, Hampshire
tells us that the ex post facto clause is designed to give fair
notice to criminal defendants. And here --
THE COURT: Well, now they're really applying the
Child Support Recovery Act. I mean what they did was apply the
victim -- or approve the district judge's use of the
restitutionary provisions in the Victim and Witness Protection
Act to require past child support to be paid predating the
Child Support Recovery Act.
MR. CASSELL: Yes, your Honor. But the important
point to remember is the order that was in front of the Tenth
Circuit in Hampshire was an order issued under the Victim
Witness Protection Act; and so the court had in front of it the
question of how to interpret the Victim Witness Protection Act.
And the critical point that we pull from Hampshire is this:
Should we call restitution penal, or should we call it
compensatory? And in Hampshire, they say that restitution
orders are primarily compensatory.
Now, perhaps you could argue there is some technical
distinction in Hampshire that deals with child restitution
orders or something like that. But it's important to recognize
that Hampshire stands within a long line of Tenth Circuit
authority that says restitution orders are compensatory.
THE COURT: But those are all discretionary orders.
MR. CASSELL: Well, your Honor, the critical point is
if restitution is compensatory, then ex post facto
considerations do not apply.
THE COURT: I understand that, but how is it
compensatory when there is no regard to be paid to the ability
to pay?
MR. CASSELL: First of all, your Honor --
THE COURT: I mean, that seems like some of the fines
and forfeiture cases that caused us so much trouble a while
back on double jeopardy issues, where the Supreme Court began
to say, at any rate, that forfeitures in drug cases constituted
punishment and civil forfeiture was punishment.
MR. CASSELL: Your Honor, it's not accurate to say
that ability to pay does not factor into this court's decision.
It factors in at a later stage in the process. Ability to pay
goes into determining the payment schedule that your court --
that this court would establish. So once the order of
restitution is in place, then ability to pay factors in on the
payment schedule. That's precisely what the victim --
Mandatory Victim Restitution Act requires. So I think to
characterize it as penal is simply to overlook that fact.
The other point is where would the money go. The idea
here is to make sure that Mr. Nichols does not profit from his
crimes. That's not penalizing him. That's giving -- that's
simply preventing him from taking advantage of the notoriety
that comes from having committed one of the most notorious
crimes in the 20th Century.
THE COURT: How is that compensatory?
MR. CASSELL: It's compensatory because of where the
money would go. Where would the money go? If he starts to
earn money, it would go to the victims, it would go to the
Government, or the proposal that we're happy to endorse today
is that the Government would suggest that you enter an order.
That order will then be -- with restitution. That amount would
then be assigned to the victim fund that the federal government
maintains.
THE COURT: Which has nothing to do with the victims
of -- in Oklahoma City.
MR. CASSELL: Well, your Honor, some of those funds
have been used to pay for certain expenses that have arisen out
of this litigation.
THE COURT: But a primary use of those funds is for
domestic violence cases now.
MR. CASSELL: They're used to satisfy a number of
urgent victim concerns. But the question -- that's simply a
proposal that's on the table to simplify matters. We're happy
to endorse that proposal as a straightforward way to go.
We have also, however, provided information about the
exact losses that our victims have suffered; so the point is
where would the money go? The first dollar that Terry Nichols
earns that goes to a restitution order is going to go to
satisfy a victim service or a victim or a victim of this crime
in some way. And what Terry Nichols' position is at bottom is
that because he has committed such a terrible crime with such
staggering losses that your Honor should not enter an order.
If he were a burglar that had stolen a TV set, I have
no doubt that your Honor would enter an order of restitution
requiring him to return the TV set. But he has done something
thousands of times worse than that; and, of course, then, your
Honor should enter a restitution order, just as you would in a
routine case. And that's what the Mandatory Victim Restitution
Act requires.
And the only question on ex post facto considerations,
then, is whether it's a penal act or a compensatory act. If
the order is going -- if you enter a restitution order and
those dollars are going to pay victims -- and we can talk about
exactly how to structure that -- that's not going to penalize
Terry Nichols. That's going to compensate victims of his crime
or victims of other crimes. That is a compensatory program,
it's not a penal program; and that's what the Tenth Circuit has
told us in the Hampshire case: It says that restitution orders
are primarily compensatory in nature. But Hampshire isn't the
only case.
There was the Artunoff case, a 1993 decision again
under the Victim Witness Protection Act that says restitution
orders are compensatory in nature. And if you follow those
decisions -- and of course, they're binding on this court --
you have to conclude that a restitution order is compensatory
in nature. And once that conclusion is reached, then ex post
facto considerations are out the window. There is no ex post
facto problem with entering a compensatory order.
Now, there is a second reason for reading Hampshire in
the same way. Hampshire says that the ex post facto clause is
designed to give fair notice to criminal defendants of their
potential penalties. When Terry Nichols conspired to set the
bomb, he knew that he could potentially be ordered to pay full
restitution. He was on notice of that fact. And all that the
1996 amendments do is change various procedures around. As I
pointed out, you can still consider ability to pay; you are
just directed to consider that in a later point in the process.
So these are procedural changes; and because they are
procedural changes, simply changing the order in which the
court considers various factors -- again, there is no ex post
facto consideration. It's hornbook law that procedural changes
do not run afoul of the ex post facto clause even if they
operate to the disadvantage of a criminal defendant.
And here again, there is guidance on this point. The
Sixth Circuit has reached exactly that conclusion in upholding
the Mandatory Victim Restitution Act's application to a
retrospective situation.
So under both of those readings of Hampshire, first
that it's a compensatory order that's under consideration
today, not a penal order, and secondly, that Terry Nichols was
given fair notice at the time he committed his crimes that he
could potentially be subject to this, under either of those
readings of Hampshire, the Mandatory Victim Restitution Act
must be applied. And so we would urge the Court to follow the
act.
I could then discuss -- we think once you follow the
Mandatory Victim Restitution Act, you can follow on precisely
the approach that the Government has suggested, enter a
$14 million restitution order to make sure that Terry Nichols
never profits. And my clients are delighted to endorse that
proposal. It seems like a straightforward and simple way of
resolving all of these issues.
I mean, even Terry Nichols agrees that it would be a
terrible tragedy if he were to somehow profit from his crime
and the --
THE COURT: That isn't the issue now. Please. I
asked you to address the ex post facto issue. I take it you've
done so.
MR. CASSELL: Yes, your Honor.
THE COURT: All right.
Defense.
DEFENDANT'S ARGUMENT
MR. TIGAR: Your Honor, I won't respond to the
comments that counsel made on other than the ex post facto
issues. We have plenty to say about that.
I'd like to start with the statute, your Honor, under
3663A(a)(1) that begins, "Notwithstanding any other provision
of law" and then the language a little further on, "In addition
to or in lieu of any other penalty authorized by law." Now,
the words "other penalty" have a clear meaning; that is,
what -- they're talking about a penalty that's going to be
imposed under this statutory provision, and it's to be in
addition to any other penalty. So strictly as a textual
matter, your Honor, reading the statute, it is penal in nature.
We've cited Sheinbaum and the Supreme Court's decision in Kelly
vs. Robinson to that effect, and that ought to end the matter.
But let's look at Hampshire, which is the case
principally relied on by Professor Cassell. Hampshire involved
an order under the Child Support Recovery Act, the CSRA. And
the court, the Tenth Circuit, said under the clear import of
the CSRA, restitution is not a punishment.
Now, it's important to note what happened in
Hampshire. Hampshire at the time that he was -- that this
statute was passed was subject to a valid order of a stated
court that he pay child support in a certain amount; that is to
say, there was a judgment out there, a civil judgment, and so
all that happened in that case was that the court held that
there is an additional remedy to collect the civil judgment for
which he was already liable.
Under those circumstances, limited to the Child
Support Recovery Act, it's permissible and logical to say that,
as the court did, past due support is a form of restitution but
limited in the very statute construed by the court to -- at
page 1005-1006 of Hampshire to circumstances in which there is
a preexisting valid judgment that's simply being enforced by
this additional order.
So for those reasons, your Honor, we respectfully
submit that the ex post facto concerns here are real and that
the proposed application of this mandatory provision would be
improper.
RULING
THE COURT: All right.
Well, I, of course, have reviewed this since receiving
the filed papers on it and considered the cases that have been
filed and also some legislative history with respect to this
1996 enactment to the extent that it's reported in the
Congressional and Administrative News Service, which includes
the statements made in the committee reports. And certainly,
there is an aspect of the need to compensate victims; and of
course, it reflects the increasing sensitivity of the Congress
to the victims of crime and the need to recognize their
interests in the prosecution of criminal cases and in
sentencing.
But it is my view that the significant difference
between these two statutes and the reason for the change is
that this is a mandatory restitution order. It is not
dependent upon ability to pay now or in the future. It does
not relate really to the situation of the defendant at all but
focuses directly on the victims and what is needed to
compensate them for the consequences of the crime for which
sentence is being imposed.
I think that is different. I think that is different
in its thrust and effect; and accordingly, it is not to be
applied in this case because to do so would be increasing the
punishment for a crime in violation of the ex post facto
prohibition in the Constitution.
So we're going to turn to the statute, the Victim and
Witness Protection Act, and Section 3663 in the case. And
here, the Government has made a suggestion that we take the
value of the Alfred P. Murrah Building, at least its original
cost at $14 1/2 million, and apply that as a measure of the
loss, and not, as I understand it, proceed to determine the
loss to each individual family, each individual person who was
injured, other property consequences, and thereby avoid what
the defendant has pointed out is a problem here, and that is
the delay in sentencing resultant from the need to calculate
the loss with more specificity. And also, of course, this
ability to pay would be, as the Government proposes, based
essentially on future earnings potential so that, again, we
wouldn't be delayed.
I'm not quite sure where the Government is with
respect to execution on existing assets; and of course, that
gets us to the other matter that was noticed and the problem of
trying to decide choice of law, really a division-of-property
type of thing between Mr. and Mrs. Nichols.
So Ms. Wilkinson, I heard from Mr. Mackey you're going
to address restitution.
MS. WILKINSON: I am, your Honor.
THE COURT: All right.
RESTITUTION
PLAINTIFF'S ARGUMENT
MS. WILKINSON: You have succinctly stated our
position, and I will just elaborate on some of the issues that
you've raised for us.
First of all, we are asking for the Court to impose a
restitution order of $14.5 million. Based on the Tenth Circuit
case law, we believe you have no problem doing that, which is
coming up with this simple, almost formulaic analysis of the
loss. Under United States vs. Davis in this circuit, appellate
courts have approved using a formula and using a reasonable
estimate.
We believe, of course, the loss in this case was much
greater; but there is no need to calculate the loss to all the
victims, the injured, the families, the economic loss in
Oklahoma City, because we believe it is much larger than 14.5
million, and we have no reason to believe that Mr. Nichols
would come into -- would have any potential earnings greater
than approximately 14.5 million. And that's why we urge the
Court to adopt that rather simple analysis for the first part
of the restitution proceeding, which is the Government's burden
to prove the loss or the value of the loss. And we believe we
have done that. And we have an affidavit, if it's necessary
for the Court, on the value of the building; but I don't
believe that the defense disputes that that's the value of the
Alfred P. Murrah Building.
THE COURT: The value measured by original cost?
MS. WILKINSON: Correct. Not the value of replacing
it today, but just what we paid to build it originally. If
they do dispute it, we'll be happy to supplement the record
with the affidavit.
The second analysis the Court must do is the
defendant's ability to pay. And we don't believe the property
issues come into play right now for your analysis, and I'll
tell you why. First, the defendant has recently filed a return
of property motion, claiming that everything that was taken
from him belongs to him. In addition, he claims that the
materials that he turned in to us after the searches, which
include a box of the Colombian -- pre-Colombian jade and the
semi-precious stones also should be returned to him and are
his. Clearly, we disagree and we believe we have proved that
that property belongs to Mr. Moore and his associates.
But we don't believe the Court has to make that
determination today, because your only analysis is his ability
to pay. So for purposes of this hearing, we would agree, if
the defense would like, to consider all of those his assets;
and that would only increase his ability to pay. If they do
not want to do that, we can take all of those assets out and
you can just reduce the amount of the restitution or his
ability to pay by not considering those assets.
But to make the process easier for the Court, we are
willing, for this limited purpose, to agree all of those assets
are his for the analysis for the ability to pay. And we would
estimate -- and this is again a rough estimate -- that those
assets are valued somewhere between 20- and $40,000. Of
course, the Court knows, depending on when the firearms are
sold or the coins, the Colombian jade, the value of those items
could go up or down, if you assume again that those are
Mr. Nichols' property, which we don't.
But as the Court pointed out, that is just a very
small amount of what we consider is the basis for Mr. Nichols'
ability to pay. His real ability to pay or his potential
earnings are unfortunately because of the asset that he now
has, which is the story he can tell and sell over his lifetime.
And the value of that asset is very difficult to calculate.
But we know, unfortunately, that many other less notorious
criminals have sold their stories to the tabloids and received
millions of dollars and that people just associated with these
cases have sold book stories and movie rights and received
millions of dollars.
Mr. Nichols, unfortunately, could be in a more
profitable position if he were to withhold his story until
after Mr. McVeigh's execution, and he would be left as the only
person living who knew the story. We cannot calculate for the
Court the exact value of that asset, but we believe that it is
in the range of several million dollars and that with a
restitution order of $14.5 million, the Court would be ensuring
that Mr. Nichols would never personally benefit if he chose to
sell his story at any time and in any form.
And we believe this is the time for the Court to do
that. I believe your Honor mentioned briefly the statute, the
special forfeiture statute which was passed several years ago.
I think it's 18 U.S.C. 3861 or 3681 -- 3681, which allows the
Government to collect any proceeds if the defendant benefits
from his crimes.
We would urge the Court not to put the burden on the
Government and the victims by using that statute, for several
reasons. One is that that statute is of questionable
constitutional basis, and it is consistent or at least similar
to the Son of Sam laws, which have been held as
unconstitutional in various jurisdictions. It also puts --
only allows proceeds to be collected if there is already a
money judgment obtained by the victims, which means the victims
would have to go into a court -- either in Federal Court or
state court -- and obtain a civil judgment against the
defendant.
It can be used to pay a fine imposed by a Federal
Court; but again, that goes back to this analysis of his
abilities to pay under restitution or fines; or moneys can be
collected to repay his legal representation in a criminal case.
So if you were not to order restitution and ask us to
rely on this statute for any future benefits Mr. Nichols would
receive, we would be incurring more litigation costs at the
state and federal level, and I think the Court is in the best
position right now to resolve all these disputes and to assure
everyone that no matter how long Mr. Nichols waits to sell his
story that he will never benefit from doing so.
The affidavit that he has submitted to suggest to your
Honor that he would not benefit or that if he did, he would
assign those benefits to certain groups of victims, is
unenforceable. It's not a contract, and we should not have to
be put to the burden to go and litigate that affidavit if
Mr. Nichols did file it and a court accepted it.
Furthermore, we are -- "offended" may be too strong of
a word, but we reject the idea that Mr. Nichols should have any
right to assign those benefits. That is appropriate, I
believe, for the Court to do and not for Mr. Nichols, who
perpetrated the crime.
The other things the Court must consider are the other
assets, as we said, which are minor and then, more importantly,
his obligations to his dependents. He has a wife and two small
children and a son who is close to the age of majority. We
believe that Mr. Nichols decided not to support his family back
on April 19, 1995, but he has no ability or very little ability
other than working in prison to support his family for the rest
of his life. But he also has a wife who is able and educated
to support those two children; and we believe that women across
the country every day are sole supporters for their children,
and Mr. Nichols should not be claiming that some of his assets
that could go to compensate victims of this crime should go to
his family.
That being said, your Honor, we are willing to return
the property that Mrs. Nichols has requested in her limited
motion. That is, the property that was found under the bed,
several coins, and the remaining cash without any dispute. And
we can resolve that Rule 41(e) motion, the original one, today
with that agreement. And we have always agreed to that. And I
think we should make it clear to the Court that, unfortunately,
we were quite surprised when Mrs. Cain filed an affidavit
saying the Government had never agreed to return the property.
I had personally spoken to her before she filed that affidavit
and told her we would be willing to return the property as long
as she was willing to give up any potential interest in the
other assets Mr. Nichols had.
Therefore, your Honor, the only thing that really
remains is for Mr. Nichols, if he wants, to take a position on
whether you should consider the assets that are in the
Government's possession as part of his ability to pay. And if
he does that, as I said, we are willing to consider, for this
purpose and for this hearing only, that they are his assets and
that they are valued somewhere between 20- and $40,000.
THE COURT: You, in the proposal made here, talk about
directing that the amount of restitution be, by the court,
designated to go to the Crime Victims Fund. Why isn't it more
consistent with the law and directly to say that the money goes
to the General Services Administration, which, of course, was
the agency that suffered the loss of the property?
MS. WILKINSON: That's a very good point, your Honor.
We've discussed this among counsel and within the Government
have decided that the Government would like to assign any
benefits it's getting or compensation to the victims and put
that in the Crime Victim Fund.
THE COURT: Well, but it doesn't go that way. I mean,
the Crime Victim Fund, as I understand it -- very limited
understanding -- is a discretionary fund to be essentially
passed out to the states to fund programs in the respective
states; and it's been my understanding in the past that that
largely goes to victims of domestic abuse.
MS. WILKINSON: I believe you're right, your Honor;
and part of that is from the brief that we filed, which was not
complete enough on that fund. You're right that the first
$10 million goes to, I think, child molestation cases and
related cases; but after that, the money is sent to the states.
And in this case, we have three examples of where that money
from the Crime Victim Fund went directly to Oklahoma City
victims. The first moneys were used to defray costs for the
children's medical bills, some of the children you saw on the
videotape who were injured; second to provide lost wages to
workers injured in the buildings near the blast; third, it was
used to fund travel for some of the survivors and victims to
come here to Denver to see the trials, and fourth, it was used
for counseling services for victims during the trials both in
Denver -- I mean, here in Denver and also for people who
attended the closed-circuit broadcast.
THE COURT: Well, you made that clear; but I'm just,
you know -- logically, if we're applying this on who is the
victim and what's the loss and given what has been said here on
behalf of the victims who have been represented by Mr. Cassell,
their willingness to see their interest be served by this type
of a restitutionary order, it is, it seems to me, more
consistent to say it's a property loss and the property loss is
the Government's through the GSA.
MS. WILKINSON: I think you're right, your Honor.
It's consistent if you were just looking at the number we're
giving you. But the reason we're giving the $14.5 million
number is because the loss to all the victims, which is the
Government plus the human beings who incurred such horrible
loss, is a number so great that we think it's almost
incalculable; but we're using that to substitute and put our
interest, the Government's interest, in receiving restitution
to the victims where it can be used. And so I guess if we were
to adopt the money -- your solution of the money going to GSA,
we feel like the Government would be getting the money back,
when we would really have it rather go back to the crime
victims.
THE COURT: I don't know what they can do about
assigning it over to somebody; but I am troubled when I have a
statute to apply and a determination to be made about loss and
victim of creating something different from a straightforward
analysis.
MS. WILKINSON: I believe both statutes, the mandatory
statute and the Victim Witness Restitution Act, provide that
the victims can assign their rights. And we have written to
all the victims; and no one has objected to us assigning or
turning over this restitution, if you order it, to the Crime
Victim Fund. So I don't -- because I think everyone
recognizes --
THE COURT: Well, you can do that. I don't think I
should do it.
MS. WILKINSON: So in other words, you're suggesting,
perhaps, that you order it to GSA and we can turn it over
ourselves?
THE COURT: Yeah. If it's to be done, that seems to
me to be consistent with the statutory policy that's involved
here.
MS. WILKINSON: Well, as long as we're not prohibited
from turning over our interest to the --
THE COURT: You'd have to collect it first.
MS. WILKINSON: That's the issue you were raising, the
property issue about Mr. Nichols; and we don't believe you need
to get to those property issues, because until you order the
restitution, we can't decide which assets we would go after of
Mr. Nichols. For example, he has a home, but we may decide
that's not an asset that we need to seize.
THE COURT: Well, I could, you know -- one of the
things you can do with a restitutionary order -- restitution
order is to get a writ of execution based on that in the same
fashion as a judgment, the way I understand the law; but, of
course, I can also stay execution on the restitutionary order
until matters like that are resolved so that we wouldn't have
to do it. One of the things that is of concern to me is that
we get a sentencing date and get this matter to final judgment.
MS. WILKINSON: We are with you on that, your Honor;
and we would like a sentencing date as soon as possible. So if
the Court would like to stay that order of execution, if you
order restitution, we would be happy to come back. Just so you
know, we believe some of the property we've seized belongs to
Mr. Nichols. There is a list of property we believe does not,
and we have already provided that to the defense and requested
from them an answer back of whether they are arguing that some
of that property does, in fact, belong to Mr. Nichols. So to
complete the process that you're talking about, we would need
an answer from the defense as to what property they are
actually claiming as theirs, and then we can resolve it with
the Court.
THE COURT: Well, what about Roger Moore and Karen
Anderson? Is there some administrative procedure where they
make a claim to the Justice Department? What happens to them?
MS. WILKINSON: Yes, they could, your Honor.
THE COURT: Mr. Tigar has pointed out that he doesn't
think it appropriate for the Department of Justice to be
claiming on behalf of Roger Moore and Karen Anderson.
MS. WILKINSON: Well, we're not claiming on behalf of
Roger Moore and Karen Anderson, but we are the recipients of
the property and we have a right to return -- an obligation, I
think, to return the property to the rightful owner.
Mr. Moore, as we believe, is a victim of a crime. And so we
don't believe we are allowed to return it to Mr. Nichols, if we
believe it belongs to Mr. Moore.
THE COURT: Yeah. Well, who adjudicates that?
MS. WILKINSON: Well, we believe that either if -- we
can determine who the property belongs to except for the items
we have agreed with Mr. Tigar that they return to us; and that,
we would litigate in court. Now, if Mr. Tigar does not agree
with us, he can, as he has, file that motion for return of
property and claim which pieces -- we don't want to engage in
more litigation. If he believes certain property that we think
belongs to Mr. Moore is, in fact, Mr. Nichols', we can try and
work that out. But we have not received any notification from
him --
THE COURT: Okay.
MS. WILKINSON: -- that there is certain property that
we believe belongs to Mr. Moore that he believes does not.
THE COURT: All right. Mr. Tigar?
MR. TIGAR: Yes, your Honor. Did you want to hear
from Mr. Cassell on this before the defense responded?
THE COURT: Well, I don't know that Mr. Cassell has
standing on this.
KIGHT'S AND CASH'S ARGUMENT
MR. CASSELL: Your Honor, I can argue that. If I
could have 30 seconds, I could make our point.
THE COURT: All right.
MR. TIGAR: I'm sorry. I didn't mean to --
THE COURT: Okay.
MR. CASSELL: I'll go straight to the merits and avoid
the standing question. We're happy to endorse the Government's
proposal.
THE COURT: That's what I understood you to say
earlier.
MR. CASSELL: With respect to ordering it to GSA,
we're comfortable with that. We're confident in the
Government's ability to work out the internal transfers
necessary to accomplish --
THE COURT: Well, it does seem more logical, doesn't
it, to say that this is a property loss; that part of it, this
is the victim?
MR. CASSELL: It certainly seems logical. And the
important point is to get the order in place. The details can
be resolved within the Government later.
THE COURT: I understand. Okay.
All right. Mr. Tigar?
DEFENDANT'S ARGUMENT
MR. TIGAR: Thank you, your Honor.
I want to begin by responding to some of the things
that Mr. Cassell had said earlier and somewhat out of turn.
I was here when the jury returned its verdict. I
remember counting the sconce lights in the courtroom. There
are 18 of them. The jury said not guilty 18 times. That is
also the Hebrew "Chai," the Hebrew word for 18. It's also the
word for life. And then the jury found no culpability intent
with respect to resulting death.
We also know that the Tenth Circuit has held in United
States vs. Melton that the scope of criminal activity jointly
undertaken by the defendant is not necessarily the same as the
scope of the entire conspiracy. So there is this question of
responsibility in some global sense.
The Government, I think, has decided to ignore the
fact that it lost the case it brought and in deciding to ignore
the fact that it lost the case it brought has decided to do so
by refusing to accept the normal and logical consequences of
that.
Your Honor had said repeatedly in lectures given and
in talking to us as lawyers in the case that we share a belief
in the jury as the decider of things and we share a belief in
the workings of the adversary system. Your Honor said it, and
I believed it then and I believe it now. So we come to the
Court from a rather different position than that expressed by
the Government and Mr. Cassell.
I want, first of all, then, to deal with the
allegation that has now three, four times been made; and that
is that Mr. Nichols is in a position to profit in some way.
"Tabloid journalism" was the words that were used.
Ms. Wilkinson went so far as to say that if
Mr. McVeigh were executed, Mr. Nichols would be left as the
only person living who knew the story.
I heard in the opening statement that Mr. Fortier knew
the story. I heard in the opening statement in another case
that Mrs. Fortier knew the story. No restitution orders have
been sought against Mr. Fortier or Mrs. Fortier. No one has
said it is an insult to working women of America not to go out
there and seize their trailer, throw their children into the
street, and leave Mrs. Fortier as the sole support of those
children.
I think that is a cynical argument, and we reject it.
With respect to the question of this property order,
I'm going to put that to one side. Mr. Nichols filed a
declaration. It is attached to our papers. As has so often
happened in this case, every time Mr. Nichols extended his hand
to the victims, with whose situation he sympathizes, people
have turned away, people have mocked his initiatives. They did
so when he waived his rights under Federal Rule of Evidence 615
so that people could attend the trial, and I know the Court
remembers that. So I will say here today Mr. Nichols has no
intention of profiting from the sale of any memoirs or anything
else to any media.
Your Honor knows that the approach by our defense team
to the media in this case was very, very different from the
approach of the co-defendant's legal team. I'm not criticizing
them, your Honor. It seemed to us under directions from our
client that that was the dignified and just and decent and the
right way to proceed; but if it is thought that Mr. Nichols has
made an offer which cannot be enforced, Mr. Nichols wants to do
this today: Let Mr. Cassell, on behalf of Mrs. Kight, draft a
document naming Mrs. Kight as the trustee of a fund to be
distributed in her discretion as trustee to the victims of the
Oklahoma City tragedy, and let him present it to Mr. Nichols
now, and he'll sign it before we leave the room today,
assigning all proceeds from any work in any medium for the
indefinite future, so that if such a thing does come to pass,
the money will flow directly not through the machinations of
Congress and block grants and the GSA and all of these other
alphabet soup agencies, but directly to the people who suffered
these losses.
In making that statement, Mr. Nichols does not concede
the liability that the Government seeks to fasten upon him. He
simply acts as a human being faced with the reality that there
was a tragedy in Oklahoma City and that to the extent that he's
able to do something about it, that's what he says he can do.
And if they say that what we filed is not enforceable, what
I've just described surely is.
But what is the Government's ultimate position here,
your Honor, and what are the factors the Court is supposed to
consider? The Tenth Circuit has reversed orders where the
amount of restitution that was ordered so far exceeded the
defendant's realistic ability to pay that the whole thing was a
nonsensical exercise.
Again, your Honor, I worry. I worry because they
haven't sought one about Mr. Fortier. They haven't sought one
about Mrs. Fortier, or she wasn't charged with anything. They
haven't sought one about Mr. McVeigh. They've sought one here,
and they do so in terms that have inflated the rhetoric far
beyond any rational consideration of what the jury's verdict
could mean under the instructions that your Honor gave to this
jury about the permissible basis of conviction.
I think, your Honor, to begin with, therefore, that a
$14.5 million restitution order is a mark of disrespect to this
jury and to its verdict. I say that bluntly in that way; and
your Honor, of course, may disagree. But that is our position.
Second, the Government takes, quite frankly, the
position that it wants a restitution order which, after they've
given up the few things that were in Ms. Cain's first list,
would essentially deprive Mrs. Nichols and her children of any
opportunity to have the benefit of such meager assets as
Mr. Nichols has. That, your Honor, is, in the scheme of
things, fundamentally unfair.
You know, something has happened to the system of
justice in my lifetime, and I'm not sure that I can do anything
about it; but I am disturbed. I recognize -- and all of us
must -- that those who suffered so greatly in Oklahoma City,
whose situation we litigated here, is a matter of great
concern. And I recognize also that countless voluntary
agencies and the power of the federal government has been
brought to bear, spending far more money than anybody in this
courtroom with all their earning capacities combined could
possibly do to bring folks here, to help them out in their time
of need, to pay their expenses. And so that focus, I think, is
a quite proper one on the loss that has been suffered.
But I was raised to believe that the process of
criminal justice should not be one by which a person convicted
of a crime is completely pauperized, completely rendered unable
to render any useful service to the family that he has created;
that he has brought into being and sworn to support; that is,
the Government wants to elevate one permissible interest to the
absolute exclusion of another and to do so in a way that
essentially dehumanizes Mr. Nichols, having treated with
ridicule his proposal with respect to any media event that
might take place in the future. The Government then says they
want to take his assets in a way that would essentially rob him
of whatever right of self-respect he may have with respect to
his evident and ongoing concern to see that whatever he can do
for his family, he will do.
And that, your Honor, regardless of the sentence your
Honor imposes, is something that is at war with most basic
concepts of the penal system as I was raised to understand it.
In short, your Honor, we do not believe that a
restitution order under your Honor's discretionary power is
appropriate. We believe that your Honor should authorize
Mr. Nichols to execute a binding legal document, which we would
have done before now had we had a trustee that takes care of
the media problem and that then recognizes that Mr. Nichols'
limited power to deal with these issues in the future could,
given the balance of assets and given the availability to the
victims of other places to which they can turn and given the
Government's deliberate refusal to go after anybody else
preserves for Mr. Nichols a -- that scrap of dignity that is
the lot, the decent and justified lot of every person, no
matter what the circumstance.
THE COURT: Ms. Wilkinson, do you wish to make any
response?
PLAINTIFF'S REBUTTAL ARGUMENT
MS. WILKINSON: Just one minor point, your Honor.
You discussed earlier the stay of execution of any
order of restitution, and we just would want to include in that
a prohibition on the defendant from disposing of any assets.
We know that he has his house in Kansas on the market; and
obviously, we just want to make sure that between the time that
you order restitution and we can actually execute on that order
that he doesn't dispose of any other assets.
THE COURT: I didn't ask you, Mr. Tigar; but I take it
you're not in a position to quarrel with the representation
that $14 1/2 million is the original cost of the building.
MR. TIGAR: No. We don't quarrel with that, your
Honor.
DEFENDANT'S SURREBUTTAL ARGUMENT
MR. TIGAR: A question has been raised about
Mr. Nichols' house.
THE COURT: Yeah.
MR. TIGAR: You know, this is beginning to sound like
an execution hearing in a JP court in a rural county, your
Honor. We don't intend to do anything to defeat the purpose of
any lawful order of this court, and that has to do with the
sale of a house or with anything else. So I really think that
comment was uncalled for.
RULING
THE COURT: Well, I -- of course, this is in
anticipation of a judgment to be entered. And what I'm to say
here would be incorporated into a judgment and does not
constitute today a judgment or order; but I thought it prudent
that we have this hearing well in advance of the sentencing
hearing so that it wouldn't be something -- well, for one
thing, the result here would determine the time for sentencing,
because if we were to go forward with hearings about assets,
potential earnings, and the like, that would, of course, have
to be done before a final judgment.
What is being proposed here is a matter that I think
lends itself to this procedure in the direction to proceed, and
that is to apply the discretionary statute and to find that a
primary victim here has been the Government, the General
Services Administration, and that it has lost the original
value, at least, of this building, its construction cost of
$14 1/2 million.
Now, with respect to Mr. Tigar's comments concerning
the jury and respect for the jury verdict, I do, indeed, have
full respect for the jury verdict. I do not agree that the
Government lost the case. The jury found Terry Nichols guilty
of a violation of 2332(a) of Title 18 of the United States Code
and made a finding beyond a reasonable doubt of the element of
the offense that was given in the instruction that two or more
persons including the defendant Terry Nichols agreed to use an
explosive bomb in a truck as a weapon of mass destruction
against a federal building and the persons inside it. He was
found guilty of that crime and will be sentenced for it.
The consideration of restitution is a part of the
sentencing structure that is required by law. And the
defendant is also responsible for the conduct of other
co-conspirators that resulted in the destruction and loss of
life and tragic injuries that resulted.
I do not want to minimize the human cost here. And in
talking about the building and the loss to the Government of
the building, I do not in any way wish to diminish the loss to
the people. Obviously, that is a far greater loss than a
$14-and-a-half million building, or whatever it's worth today;
but when you consider the dimensions of the loss here, who the
deceased were, including small children, the families of the
deceased, the persons who were maimed and injured, the loss
really becomes incalculable.
And you know, in thinking about this, I'm reminded of
a most compelling argument that I once heard while waiting my
turn before the Colorado Supreme Court many years ago when I
was practicing law. And the issue was the net pecuniary loss
rule being applied in wrongful death where a baby was killed.
And one of the justices, I recall, was outraged and said to
counsel, who was arguing, "Do you mean that this baby's life is
worthless?" And in a response that I will never forget, the
advocate said, "No, it is not that this baby's life is
worthless; it is that it is priceless." And I'm reminded of
that here; that the human suffering involved in this case is
priceless. There is no way to put a price tag on it.
So I simply wanted to make that observation to avoid
any kind of misunderstanding that the Court has some sort of
callous indifference to the human suffering resultant from the
crime in question.
It is, then, a matter of avoiding of delay and the
complications of the sentencing system to say that the
appropriate restitutionary order in the case should be to the
General Services Administration as the victim of the property
loss and that the amount is $14 1/2 million; and that's what I
propose to do.
Now, with respect to the matter of collection, whether
it's due and payable immediately, what kinds of structure
should be imposed here in the final judgment, I leave that to
the sentencing day.
And I do want to touch, then, on this matter of Marife
Nichols' motion for return of property.
Ms. Cain, you've heard Ms. Wilkinson now respond to
that in court that it's conceded. Now, I'm not sure where it
is with respect to Terry Nichols and whether there is a dispute
between husband and wife here.
DISCUSSION RE RETURN OF PROPERTY
MS. CAIN: No, your Honor. As to our first motion,
which I understand is now conceded, which applies only to the
coins and the $170, Mr. Nichols has signed an affidavit which
was attached to our motion --
THE COURT: That's right.
MS. CAIN: -- also signed by his counsel that he
waives any interest and agrees that that was her personal
property. That was our position all along, and we accept the
Government's offer at this time to return that property. I'd
ask that it be returned as soon as possible, because my only
interest here is getting the money to my client as quickly as
possible.
THE COURT: Well, does that take an order? What do we
do procedurally?
MS. WILKINSON: No, your Honor, it doesn't take an
order. We'll do it.
THE COURT: I am reminded -- thank you -- about the
affidavit here. That does answer my question about whether
there was a disagreement between Mr. and Mrs. Nichols.
MS. CAIN: That's correct, your Honor.
As to our supplemental motion in which we asked for
the return of the marital property, since the Court has
proposed a restitution order against Mr. Nichols, as I
understand, there can be a lien against marital property. We
would pursue any claim we had to the marital property under
Michigan law, which would give her an undivided one-half
interest in all the property. And we want that to be litigated
so that we would recover --
THE COURT: Yeah.
MS. CAIN: -- what is rightfully hers.
THE COURT: Are you confident that Michigan is the
appropriate choice of law?
MS. CAIN: Your Honor, as a matter of fact, it may be
more complicated than that --
THE COURT: I think so.
MS. CAIN: -- because I believe that the law of the
state where the real or personal property was acquired will, in
fact, be the law that will have to determine the status of the
property and that the change in domicile does not affect the
status of the property. So if they moved from Michigan to
Kansas, it will be where was the laws -- where was the property
acquired that will determine the nature of the property
interest of Mrs. Nichols.
THE COURT: Okay. Well, I don't know -- I guess this
court has jurisdiction under 41(e) for whatever property is in
the custody of the Government.
MS. CAIN: That's correct, your Honor. I believe this
would be the best place to do that. And I --
THE COURT: I don't know if it's the best place, but I
guess it's the right place.
MS. CAIN: I'm sure it's not something that any of us
are looking forward to, and I don't even know exactly all the
property that was seized; so that's why I did the motion in two
parts, because I knew the Government had our personal property.
I'm not sure about the rest that the Government has; but we
will persist in that claim, I assume at some later date.
THE COURT: And that's one of the things that counsel
for Mr. Nichols has suggested; that we get a list of all that
the Government has --
MR. TIGAR: Yes, your Honor.
THE COURT: -- is that right?
MR. TIGAR: I gather if the Court intends to enter an
order as part of the judgment of restitution that such a list
is, in some measure, irrelevant as to any claims of Mr. Nichols
except to the extent there may be some exemptions from
execution.
THE COURT: Well, I see this -- yeah. I see this as a
collateral-type matter that should not delay our proceeding to
the sentencing hearing and the entry of judgment and then
whatever is done with a stay of execution or the like.
MR. TIGAR: Yes, your Honor.
THE COURT: But I don't want to have this -- you know,
I don't know anything about these property laws, and I have
never done much with marital property; that is, adjudicating
it.
MR. TIGAR: If your Honor please, there is only one
matter that is raised by Ms. Wilkinson, and that is the house
in Herington.
THE COURT: Yes.
MR. TIGAR: It's true it's on the market. I make a
commitment to the Court that nothing that will be done if that
house is sold will interfere with the judgment your Honor
proposes to enter. In exchange for that, I would like a
commitment from the Government that they're not going to
interfere with the sale, because, if they do, then the house
will be lost and nobody will get anything out of it.
THE COURT: I think we could simply have a stipulation
that the proceeds go into some sort of escrow.
MR. TIGAR: Yes, your Honor. We agree to that.
MS. WILKINSON: That would be fine.
THE COURT: All right. Well, I'm sure you can draft
that.
So we will expect the Government to proceed to honor
the motion for return of property originally filed forthwith or
with all -- not deliberate speed but speed -- speedily; and
then we'll have to structure some kind of procedures to deal
with the rest of this. I suppose -- I don't know whether there
is a need to offer participation to Roger Moore and Karen
Anderson or what.
MS. WILKINSON: I have a suggestion to get it started,
your Honor, to simplify it.
THE COURT: Okay.
MS. WILKINSON: As I said, some of the property, we
agree, is Mr. Nichols'. For example, his truck. We have no
dispute that the 1984 GMC --
THE COURT: Well, he wants damages for it, too.
MS. WILKINSON: Right. That is a different issue.
But the property that -- we have sent them a list of
approximately 32 items that we believe does not belong to them.
If we could at least start with that and see whether they do
have a claim to this property, that would narrow the property
you have to consider; so if we could at least have a promise
from Mr. Tigar that he would respond and say whether
Mr. Nichols is actually claiming, for instance, you know,
ownership of the safety deposit box keys and items such as
that. And if he doesn't, then we have a smaller number of
property issues that the Court would have to resolve.
THE COURT: Do you want to address that now,
Mr. Tigar?
MR. TIGAR: Yes. I'm happy to respond to the letter,
but I'm not sure what the point of it is; that is, I think that
if -- the main issue here for Mr. Nichols is to protect
Mrs. Nichols' rights, he'll execute whatever documents are
necessary to do that.
With respect to us filing a list of things in which
Mr. Nichols says he has a property interest, I don't know to
whom we would address it or with what effect unless the
property in question were thought to be exempt from execution
under the law of the appropriate jurisdiction; that is --
THE COURT: Well, I'm going to suggest that counsel
talk to each other or among all three of you, really, to try to
work out a procedure to approach this. I don't think we need
to take the time now to do that because I'm saying that that's
not going to interfere with going forward with the sentencing
hearing.
MR. TIGAR: Yes, your Honor.
THE COURT: So it's all collateral to that, or
ancillary, I guess, is the word.
MS. CAIN: Thank you, your Honor.
THE COURT: All right.
Well, I want to set a time for the hearing; and I know
that several people are involved here and have other schedules.
I'd like to do it June 1. June 1. Monday?
MR. MACKEY: That's agreeable with the Government,
your Honor.
MR. TIGAR: I'm sorry, your Honor. May I have a
moment just to talk to my colleagues?
THE COURT: Sure. Of course.
MR. TIGAR: Your Honor, may -- I have a comment about
this, but it's a personal matter. May I approach?
THE COURT: Yes.
(Bench conference sealed as separate transcript.)
(In open court:)
THE COURT: It's been suggested that we instead do
June 4 at 1:00 in the afternoon.
MS. CAIN: That's fine, your Honor. That is for
sentencing and not for the more complicated issues?
THE COURT: That's right. We will have to structure
that for a different time and under a procedure yet to be
devised.
MS. CAIN: Thank you, your Honor.
THE COURT: But I want to get to final judgment in
this case, so we'll do it. June 4, 1:00.
There are some other matters, of course, that are
pending here but involve other parties. We have motions from
The Dallas Morning News that I'm going to have to look at that
and attempt to structure some kind of an order. I think we
need some sort of approach to this problem of unsealing that at
least is consistent with, from my standpoint -- consistent with
my order on media motions back in January of '96, so I'll
reflect on that and try to come up with some kind of a
procedure to start down that road.
MR. TIGAR: There is also the matter on which your
Honor has shared some correspondence with us, and we would like
to be heard at the appropriate procedural hour about that. I
know that some persons who are interested in that are not here
today.
THE COURT: Right.
MR. TIGAR: And --
THE COURT: And I -- you know, frankly I'm sort of
puzzled as to what it is. There is no formal motion or
anything. It was by way of a letter, and it's not something
I -- I shared it with counsel. You, in turn, passed letters
back. I sent it to the source of that letter, and I don't know
where we are procedurally. I'm not accustomed to doing things
by letter.
MR. MACKEY: I think they're waiting for further order
from this court.
MR. TIGAR: If your Honor please, it was our
suggestion that there are two issues. One is a protective
order already signed in the case and the other is Rule 6(e).
Now, as I understand recent Tenth Circuit law, there is a
process that should be gone through before disclosures are made
and --
THE COURT: It's my understanding, too.
MR. TIGAR: -- I intend no disrespect, your Honor,
but --
THE COURT: None taken. I'm reading a lot of
transcripts.
MR. TIGAR: I thought based on that that the
suggestion in our letter was indeed an appropriate one; that
is, somebody should move for an order that either directs or
permits somebody else to do something. In the absence of that,
why, we're just kind --
THE COURT: I think what I'm -- you know, what I was
asked is are you going to remove an order that affected other
proceedings? Now, it seems to me that the rowing oar here is
for somebody to ask for a modification of the order with
standing in this case, and I assume that's the Government.
MR. MACKEY: We will, your Honor.
THE COURT: Then we have something we can work with.
I can't work with letters.
MR. TIGAR: We're happy with things as they are, and
we'll respond to the Government's motion when they make it.
THE COURT: We won't put a time on that. Whatever you
choose to do.
MR. MACKEY: If we could, Judge -- and the reason is I
think reflected in the tender of the original letter. There
are proceedings that they'd like to know as soon as possible.
We could certainly have a motion on file yet some time
tomorrow, for that matter.
THE COURT: All right. Whenever you get it filed,
we'll take a look at it and give an opportunity for the
adversary process to work.
Okay. All right. Court is in recess.
(Recess at 2:37 p.m.)
* * * * *
INDEX
Item Page
Restitution: Ex Post Facto Issue
Kight's and Cash's Argument
Defendant's Argument
Ruling
Restitution
Plaintiff's Argument
Kight's and Cash's Argument
Defendant's Argument
Plaintiff's Rebuttal Argument
Defendant's Surrebuttal Argument
Ruling
Discussion re Return of Property
* * * * *
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 13th day of May, 1998.
_______________________________
Paul A. Zuckerman
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