The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Thursday, November 6, 1997 (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
(Trial to Jury: Volume 66)
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 6th day of November,
1997, 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, Assistant U.S. 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 and RONALD WOODS, Attorneys at Law, 1120
Lincoln Street, Suite 1308, Denver, Colorado, 80203, appearing
for Defendant Nichols.
* * * * *
PROCEEDINGS
(Reconvened at 1:30 p.m.)
THE COURT: Be seated, please.
(Jury in at 1:30 p.m.)
THE COURT: All right. Next, please.
MR. MACKEY: Your Honor, the United States would call
Tejal Bhakta, and Mr. Mearns will question her.
THE COURT: All right.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(Tejal Bhakta affirmed.)
THE COURTROOM DEPUTY: Have a seat, please.
Would you state your full name.
THE WITNESS: Bhakta Tejal.
THE COURTROOM DEPUTY: Spell your last name, please.
THE WITNESS: B-H-A-K-T-A.
THE COURTROOM DEPUTY: Thank you.
DIRECT EXAMINATION
BY MR. MEARNS:
Q. Good afternoon, Miss Bhakta.
A. Good afternoon.
Q. I'm going to ask you to keep your voice up so we can all
hear you.
A. Okay.
Q. How old are you, ma'am?
A. 24.
Q. And where were you born?
A. India.
Q. And when did you come to live in the United States?
A. '86.
Q. 1986?
A. Uh-huh.
Q. Where do you live right now?
A. Corpus Christi, Texas.
Q. How long have you lived in Corpus Christi?
A. Two months.
Q. What do you do for work in Corpus Christi?
Tejal Bhakta - Direct
A. I work at the Comfort Inn, managing the motel.
Q. Who owns that Comfort Inn in Corpus Christi where you work?
A. My husband and me.
Q. What do you do there now?
A. Management.
Q. Where were you working in 1994?
A. Tucumcari, New Mexico.
Q. And what were you doing in Tucumcari?
A. Motel business, managing.
Q. What was the name of the motel that you managed?
A. Buckaroo Motel.
Q. When you worked there in 1994, were you familiar with how
guests registered at that motel?
A. Yes.
Q. Could you describe that process for us?
A. The guests come in, and I -- walk in and I say, "Hi, how
are you?" to the guest. And guest told me if they want smoking
or non. And I give the card and guest fill out name and
address, and I fill out the rest of the thing.
Q. And after the guest and you filled out that card, was that
registration card then kept as a business record by the motel?
A. Yes.
Q. What I'd like you to do, if you would look in that folder
that is sitting in front of you and look for Government Exhibit
86.
Tejal Bhakta - Direct
Do you have that in front of you?
A. Yes.
Q. Do you recognize that document?
A. Yes.
Q. And what is it?
A. It's a registration card from the Buckaroo Motel.
Q. And how do you recognize that as a registration card from
the Buckaroo Motel?
A. My handwriting and my initial.
Q. And was that registration card kept in the normal course of
business by the Buckaroo Motel?
A. Yes.
MR. MEARNS: Your Honor, we'd offer Government Exhibit
86.
MR. WOODS: No objection.
THE COURT: 86 received.
MR. MEARNS: Your Honor, may I publish it to the jury?
THE COURT: Yes.
BY MR. MEARNS:
Q. Now, if you would, Miss Bhakta, tell us what the
information that we see on that guest registration card.
A. The day, the name of the customer, the address.
Q. Okay. Could you tell me -- I'm sorry, let me ask you
questions as you go. What is the name that the customer gave
you?
Tejal Bhakta - Direct
A. Joe Havens.
Q. Could you spell that last name?
A. H-A-V-E-N-S.
Q. And then who wrote that information there, the name and the
street number and the city?
A. The customer.
Q. And then if you would go down to the bottom of the
registration record, below where it says, "Please pay in
advance." What information did the customer write there?
A. Make of car, license number, and the state.
Q. And who wrote the other information there?
A. I did.
Q. And can you tell us in the lower left-hand corner what the
date is.
A. 10-25-94.
Q. That's October 25, 1994?
A. Uh-huh.
Q. Do you remember -- and who -- I'm sorry, whose initial is
that over in the right-hand corner?
A. Yes.
Q. And that T is for Tejal?
A. Yes.
Q. Do you remember this individual, Joe Havens?
A. No.
MR. MEARNS: Your Honor, at this time we'd like the
Tejal Bhakta - Direct
Court to publish the stipulation that the handwriting in the
name and address section was written by Mr. Terry Nichols.
MR. WOODS: Yes, your Honor, that's our stipulation,
that it's Mr. Nichols' handwriting.
THE COURT: All right. It is agreed, then, what's
written beside name, street number, city, state, and ZIP code
is his handwriting.
BY MR. MEARNS:
Q. Are you able to read the address and -- the street address?
A. R2, Box 28 . . . I cannot read the city.
Q. And can you tell the initials next to the state?
A. Kansas.
Q. Now, if you would, if you would look in your folder again
for Government Exhibit 226.
Do you have that in front of you?
A. Yes.
Q. And do you recognize that document?
A. Yes.
Q. How do you recognize that document?
A. This is a card from the Buckaroo Motel, and the handwriting
is my brother.
Q. What is your brother's name?
A. Rakesh.
Q. Could you spell that?
A. R-A-K-E-S-H.
Tejal Bhakta - Direct
Q. And do you recognize that as a business record that was
kept by the Buckaroo Motel?
A. Yes.
MR. MEARNS: Your Honor, we would offer Government
Exhibit 226.
MR. WOODS: No objection.
THE COURT: Received, 226.
BY MR. MEARNS:
Q. Miss Bhakta, could you tell us which information was
written by the guest.
A. The name, street number, city, and the state and ZIP code.
Q. And what information was written by your brother?
A. Date, room number, rate, tax, amount, and the initial.
Q. And could you read for us the name of the guest?
A. Tim McVeigh.
Q. And is that spelled M-C-V-E-I-G-H?
A. Uh-huh.
MR. MEARNS: No further questions, your Honor.
THE COURT: Mr. Woods, do you have any questions?
MR. WOODS: Yes, your Honor, just a couple.
THE COURT: All right.
CROSS-EXAMINATION
BY MR. WOODS:
Q. Good afternoon.
A. Good afternoon.
Tejal Bhakta - Cross
Q. My name is Ron Woods. I've been appointed by the court to
help Terry Nichols. Can you tell the jury where your motel is
located or was located then at that time in Tucumcari?
A. It's located on -- the New Mexico?
Q. Yes.
A. 1315 West Tucumcari Boulevard.
Q. Now, is that on the main thoroughfare?
A. Main --
Q. That goes through town?
A. Yes.
Q. And what main highway goes through there?
A. 40.
Q. Okay. That's Interstate 40?
A. Uh-huh.
Q. Okay. Now, this card that was in front of you dated
December 13, are you able to tell what year that was?
A. '94.
Q. Okay. And then the other one that was dated October 25 in
the name Joe Havens, are you able to tell what year that was?
A. '94.
Q. So it's two months apart?
A. Yes.
MR. WOODS: Okay. Thank you very much.
MR. MEARNS: Your Honor, I just omitted one thing. I
failed to mention that there was a stipulation with respect to
Tejal Bhakta - Cross
226 that the handwriting for the guest is Timothy McVeigh.
MR. WOODS: Yes, your Honor, we would stipulate that's
Mr. McVeigh's handwriting.
THE COURT: All right. Again, it's stipulated,
meaning that it's agreed to.
MR. MEARNS: The witness may be excused.
THE COURT: Are you excusing this witness, I take it?
MR. WOODS: Yes, your Honor.
THE COURT: You may step down. You're excused.
Next witness, please.
MR. MACKEY: Thank you, your Honor. Miss Helen
Mitchell. Mr. Ryan will question.
THE COURT: Okay.
THE COURTROOM DEPUTY: Raise your right hand, please.
(Helen Mitchell affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: Helen May Mitchell, M-I-T-C-H-E-L-L.
THE COURTROOM DEPUTY: Thank you.
THE COURT: Mr. Ryan.
MR. RYAN: Thank you, your Honor.
DIRECT EXAMINATION
BY MR. RYAN:
Q. Good afternoon.
Helen Mitchell - Direct
A. Good afternoon.
Q. How are you?
A. Just fine.
Q. You injured your foot since you've been here in Denver this
week?
A. That's . . . morning before last.
THE COURT: In this building?
THE WITNESS: What did you say?
THE COURT: In this building?
THE WITNESS: No. Hotel.
MR. RYAN: Insurance company's already been notified,
your Honor.
THE COURT: Thank you.
BY MR. RYAN:
Q. Mrs. Mitchell, where do you live?
A. Herington, Kansas.
Q. And are you married.
A. Yes. No, I'm a widow now.
Q. How long were you married?
A. I was married for about 42 years.
Q. Do you have children?
A. Yes.
Q. How many children?
A. Five children.
Q. Grandchildren?
Helen Mitchell - Direct
A. Seven grandchildren.
Q. I'm not supposed to ask this. How old are you?
A. 70.
Q. And what do you do for a living?
A. I'm a bookkeeper at the lumberyard.
Q. And would you tell us about that employment.
A. Well, the lumberyard belongs to my brother and his family.
It's a corporation, and I'm just the bookkeeper.
Q. Do you have any duties as the bookkeeper beyond that of the
lumberyard?
A. Well, I've been doing most of the recording of the mini
storage that my brother and his son own. It's separate from
the lumberyard.
Q. What are your duties in connection with the storage units?
A. Making out the contracts and receiving the money.
Q. What do you call that storage unit?
A. Herington Mini Storage.
Q. How long have you lived in the state of Kansas?
A. I lived in the state of Kansas? All my life. 70 years.
Q. Okay. Let me show you something that's already in
evidence. It's Exhibit 2045. And if you would -- you have a
little marker there on the desk. If you would take that and
press it against the screen below your desk there.
A. Underneath.
Q. And circle Herington for us.
Helen Mitchell - Direct
A. Right -- oh, wait a minute. That won't go where it's
supposed to.
Why don't that go where it's supposed to go?
Q. I think we've got the idea. That's all right.
A. I hit it that time.
Q. Okay. Thank you. And just by point of reference, do you
see the name of Geary Lake there on the map?
A. Yes, I do.
Q. About how far is it from Herington to Geary Lake?
A. It's about 18, 20 miles, I think.
Q. What is the population of Herington?
A. Around 2600.
Q. And how long have you lived in Herington?
A. Since 1941. 46 years.
Q. Decided to settle down there?
A. I think so.
Q. I take it you're familiar with the town?
A. Yes, I am.
Q. Are you familiar with Tim's Amoco gas station?
A. Yes.
Q. You know where it is in Herington?
A. Yes.
Q. How about the Pizza Hut near Highway 77?
A. Yes.
Q. The Herington Industrial Park, are you familiar with that?
Helen Mitchell - Direct
A. Yes.
Q. And is one of the businesses of your brother there at the
Herington Industrial Park?
A. Yes, that's where the mini storage is.
Q. And about how far is that from town, from the center of
Herington?
A. From the center of Herington, probably about a mile and a
half, maybe a mile and three-quarters.
Q. And are you familiar with 102 (sic) 2nd Street?
A. I know where it is, yes.
Q. Let me show you a map of Herington that has not been
admitted into evidence, and it is Exhibit No. 97. You see it
there on your screen?
A. Yes.
Q. Have you looked at this map prior to coming here to court
today?
A. Yes.
Q. And it is -- is it an accurate map of Herington?
A. Yes, it is.
Q. And of the -- and of the four places designated on the map?
A. Yes.
MR. RYAN: Your Honor, we would offer Exhibit No. 97.
MR. WOODS: No objection.
THE COURT: 97 is received.
BY MR. RYAN:
Helen Mitchell - Direct
Q. Now, if you would, Mrs. Mitchell, would you put a circle --
there's a pretty good arrow there -- put a circle around the
Terry Nichols residence at 1092nd Street.
A. Be about right in here. Where I ended it.
Q. And about how far is -- was Mr. Nichols' home from the
Tim's Amoco gas station, about how many blocks?
A. About eight blocks.
Q. Six blocks to the west and two blocks north?
A. Right.
Q. All right. Now, if we could turn your attention over there
to the storage sheds that you act as bookkeeper for. About how
far are those storage sheds from the Pizza Hut there on the
other side of the highway?
A. About a third of a mile.
Q. Now, let me show you what has been marked as Exhibit No.
1951. It's not been admitted into evidence. And do you
recognize that exhibit?
A. Yes, I do.
Q. And what is that?
A. That's Tim's Amoco station.
Q. Is that an accurate depiction of that Tim's Amoco?
A. Yes, it is.
MR. RYAN: Your Honor, we would offer Exhibit 1951.
MR. WOODS: No objection.
THE COURT: 1951 received.
Helen Mitchell - Direct
BY MR. RYAN:
Q. Now, Mrs. Mitchell, are you familiar with the fact that
there is a pay telephone there at Tim's Amoco?
A. Yes.
Q. And would you circle that pay telephone for us, please.
Thank you. Now, let me show you another exhibit that
has not been admitted into evidence, Exhibit No. 92. Can you
see that pretty well?
A. Yes.
Q. What are we looking at here in Exhibit 92?
A. It's the industrial park.
Q. And do you recognize that as a true and accurate photograph
of the aerial (sic) park taken from above?
A. Yes.
Q. Excuse me, the industrial park.
A. Yes.
MR. RYAN: Your Honor, we would offer Exhibit 92.
MR. WOODS: No objection.
THE COURT: Received, 92.
BY MR. RYAN:
Q. Mrs. Mitchell, you indicated that you perform some
bookkeeping business and signed leases for these storage sheds.
Could you circle for the jury the location of the storage sheds
in this photograph.
And you also indicated a moment earlier in your
Helen Mitchell - Direct
testimony that the Pizza Hut was about a third of a mile from
the industrial park.
A. Right.
Q. Could you circle -- is the Pizza Hut shown here on the map?
A. Yes, it is.
Q. Okay. Could you circle that for us.
Now, is there a pay telephone there at the Pizza Hut?
A. Yes, there is.
MR. RYAN: Okay. Now -- that's all I need that
exhibit for. Thank you.
BY MR. RYAN:
Q. Now, let's talk a little more specifically about your
duties regarding the storage sheds. Tell us what your
responsibility is in terms of leasing those storage sheds.
A. Well, they start out by asking them their name and their
address; and usually we may only have one or two available.
And if we do happen to have two available, ask how large they
need, which unit they would need. And then just get
information as to their address and telephone number and tell
them how much it is.
Q. And where do you office?
A. In the same as the lumberyard.
Q. In town?
A. Yes.
Q. So people, if they want to rent a shed there at the storage
Helen Mitchell - Direct
shed location, they have to come to the lumberyard?
A. Yes.
Q. Now, if you would, tell the jury a little bit about the
storage sheds: How many different units are there at
Herington?
A. Not too sure exact number, but it's in the 20's, and we
have different sizes.
Q. What are some of the different sizes you have?
A. The small -- we have four of them that are 7 1/2-by-10 and
8-foot high. And then we have 10-by-10 and 10-by-20's, and I
think there's even a 15-by-30.
Q. Do you have a formal standard lease agreement --
A. Yes, we do.
Q. -- that people sign?
A. Yes.
Q. Let me ask you if after the bombing in Oklahoma City,
whether the FBI came by and picked up a number of the leases
that you had copies of at your place of business?
A. They picked up one, yes.
Q. And do you recall that lease they picked up?
A. Yes.
Q. Let me ask you to look at Exhibit No. 88, which is not in
evidence. And ask you if you can identify that lease.
A. Yes, that is the lease that I filled out for a Shawn Rivers
on September the 22d, 1984 (sic).
Helen Mitchell - Direct
MR. RYAN: Your Honor, we would offer Exhibit No. 88.
MR. WOODS: No objection.
THE COURT: Received, 88.
BY MR. RYAN:
Q. My colleague tells me that you may have said the lease was
in '84.
A. It's '94. I'm sorry, it is '94.
Q. Thank you.
A. I'm behind a few years. Sorry.
Q. That's all right. Now, let me see if I can get this a
little closer. Nope.
MR. RYAN: Oh -- had it been admitted before I show
her?
THE COURT: 88 has.
MR. RYAN: Make we have it on the screen, please.
Here we go.
BY MR. RYAN:
Q. Now, Mrs. Mitchell, would you tell us the date of this
lease?
A. September 22, 1994.
Q. And who did the person leasing the -- entering into this
lease tell you they were?
A. What they wanted?
Q. No; who did they say they were?
A. Oh, Shawn Rivers.
Helen Mitchell - Direct
Q. And is this your handwriting, or is the customer's?
A. No, this is mine.
Q. What address did the customer, Shawn Rivers, give you on
September 22?
A. Route 3, Box 83, Marion, Kansas.
Q. And does it give a ZIP code there?
A. Oh. 66861.
Q. Now, which storage shed did you lease to Mr. Rivers?
A. No. 2.
Q. And what was the monthly cost of --
A. $20 a month.
Q. Excuse me?
A. $20 a month.
Q. Now, do you know how many months Mr. Rivers leased this
shed for?
A. At the time, he leased it for four months.
Q. So that would be from September 22 until when?
A. January 22.
Q. Now, let's look at the second page of this exhibit, down at
the signature block. Do you see that?
A. Yes.
Q. And do you recognize this as being the bottom half of the
second page?
A. Yes.
Q. Now, whose signature is that on the left?
Helen Mitchell - Direct
A. That is mine on the left.
Q. And the signature on the right?
A. Is of Shawn Rivers.
Q. And did you watch Mr. Rivers sign the lease?
A. Yes, I did.
MR. RYAN: Your Honor, we would ask that the Court
advise the jury of the stipulation with respect to the
signature of Mr. Rivers here on Exhibit 88.
MR. WOODS: Yes, your Honor, we stipulate that's
Mr. McVeigh's signature.
THE COURT: All right.
Again, we accept these agreements without the need for
other proof, so it's stipulated that's Mr. McVeigh who wrote
that.
MR. RYAN: Thank you, your Honor.
BY MR. RYAN:
Q. Now, did Mr. McVeigh pay in cash?
A. Yes, he did.
Q. And how much cash did he give you at that time?
A. $80.
Q. Now, the following month, in October, did this same man
come in again?
A. Yes.
Q. And what was the purpose of his second visit?
A. He wanted to renew it for another four months.
Helen Mitchell - Direct
Q. And how did that strike you?
A. A little unusual because --
Q. Why is that?
A. Normally they'll wait four months before they'll pay
another four months. It was not that four months was unusual;
it was just coming a month later.
Q. And how many months, again, did he renew it for?
A. For another four months.
Q. And did he pay in cash?
A. Yes, he did.
Q. And how much cash did he give you?
A. Another $80.
Q. So now the lease is extended on Shed No. 2 through what
date?
A. May 22, 1995.
Q. Now, did you generate any paperwork with respect to this
renewal of the lease?
A. Yes, I did.
Q. Let me show you Exhibit No. 91. And can you identify this
exhibit?
A. That's the receipt that I gave him at the time he came in
to pay the other $80.
MR. RYAN: Your Honor, we would offer Exhibit No. 91.
MR. WOODS: No objection.
THE COURT: 91 received.
Helen Mitchell - Direct
BY MR. RYAN:
Q. Now, again, for the benefit of the jury who is just now
seeing the exhibit, tell us what this is.
A. This is a receipt that I gave to Shawn Rivers on January --
on October 22, which extended it to May 22, 1995.
Q. Now, let me show you another exhibit that has not been
introduced. This is Exhibit No. 90. Can you identify that?
A. That's the recording that my brother made at the time, the
first $80, and then the second $80.
Q. This is a business record you keep there in the ordinary
course of your business?
A. That was his record, yes.
MR. RYAN: Your Honor, we would offer Exhibit No. 90.
MR. WOODS: No objection.
THE COURT: 90 received.
BY MR. RYAN:
Q. And again, explain for us, Mrs. Mitchell, what this exhibit
portrays.
A. Well, the top part showing the contract was dated
September 22, 1994, paying for four months, till January 22;
and then on the bottom, extending from January 22 to May 22,
the other $80.
Q. Now, this record simply reflects the times and dates of
payments --
A. Yes.
Helen Mitchell - Direct
Q. -- on this lease by Mr. Rivers?
A. Yes.
Q. Now, let me show you a picture which we have marked as
Exhibit No. 93. Can you identify that for us?
A. Yes, I can. It's an aerial view of the mini storage from
the west.
Q. And is it an accurate depiction of the mini storage?
A. Yes, it is.
MR. RYAN: Your Honor, we would offer Exhibit 93.
MR. WOODS: No objection.
THE COURT: 93 received.
BY MR. RYAN:
Q. Now, Mrs. Mitchell, can you identify where Shed No. 2 is on
this photograph?
A. Well, it's on the back side. You can't see the door from
this view.
Q. Could you put an arrow showing us approximately where it
would be?
A. Right in there.
Q. Maybe we have a better photograph I can show you here in a
second.
Let me ask you to look at Exhibit No. 94. Do you see
that?
A. Yes.
Q. What is that?
Helen Mitchell - Direct
A. That's the east side of the mini storage showing the four
small units.
MR. RYAN: Your Honor, we would offer Exhibit 94.
MR. WOODS: No objection.
THE COURT: Received.
BY MR. RYAN:
Q. Now, Mrs. Mitchell, if you would, can you identify for us
where Shed No. 2 is located in this photograph.
A. Right -- oh, I'm sorry.
Q. It's the second door there from the left?
A. Yes.
Q. And how -- what is the size of this shed?
A. It's 7 1/2-by-10-by-8.
Q. It's 7 1/2 feet --
A. Wide.
Q. -- wide.
A. 10 foot deep.
Q. 10 foot deep, and how high --
A. 8 foot high.
Q. 8 foot tall. And let me -- finally my last exhibit is
Exhibit No. 96, and let me ask you if you can identify that for
us.
A. That's the empty No. 2 unit.
MR. RYAN: Your Honor, we move to offer Exhibit No.
96.
Helen Mitchell - Direct
MR. WOODS: No objection.
THE COURT: Received, 96.
BY MR. RYAN:
Q. And again, if you would, Mrs. Mitchell, tell the jury what
they're looking at.
A. The open door to No. 2.
Q. At this time it's empty?
A. Yes.
Q. This is after the Oklahoma City bombing occurs --
A. Yes.
Q. -- is when this photograph was taken?
A. Yes, sir.
MR. RYAN: No further questions, your Honor.
MR. WOODS: Can we leave that picture up, please?
MR. RYAN: Sure.
MR. WOODS: Thanks.
Mr. Ryan, do you want to take your machine.
MR. RYAN: You want that?
MR. WOODS: No, just that picture.
CROSS-EXAMINATION
BY MR. WOODS:
Q. Hi, Mrs. Mitchell. My name is Ron Woods. I'm one of the
lawyers that's been appointed to help Terry Nichols. I want to
thank you, you and your brother, Mr. Mueller, for answering our
questions when we went out to talk to y'all about this unit.
Helen Mitchell - Cross
This unit that was rented by a Shawn Rivers that's
pictured now, 7 1/2 feet wide; is that correct?
A. Yes, I'm quite sure that's what it is.
Q. And you've advised us that that door is only 3 feet wide;
is that correct?
A. I don't know. I never measured it.
Q. Okay. You recall telling our investigator that the door
was 3 feet wide?
A. I may have.
Q. Okay. Okay. Do you know of any physical way that a
4-foot-by-4-foot cube could fit into that door?
A. I wouldn't think so.
Q. Okay. Now, on that date, September 22 of '94, was a
Thursday. Were you present that following week, which would be
like the 29th and 30th? You office there in the lumber
company; is that correct?
A. Yes.
Q. And the storage units are away from there?
A. Yes.
Q. Did you happen to go by those storage units on the weekend?
A. No.
Q. That following weekend?
A. No.
Q. Didn't see anybody moving some household furniture in
there?
Helen Mitchell - Cross
A. No.
Q. Did you ever look inside that unit while it was rented?
A. I never have, no.
Q. Okay. Can you tell the jury what that floor is, what type
of material?
A. It's a concrete floor.
Q. Okay. And those walls, front, back, and side, what kind of
material is that?
A. That's wafer board.
Q. And what do you mean by wafer board since you're in the
lumberyard business?
A. It's the larger chips of wood glued together, instead of
plywood, it's small chips.
Q. It's not real smooth, I take it, like laminated, I take it?
A. Not real smooth, no. But it can be varnished.
MR. WOODS: Okay. Thank you so much, Mrs. Mitchell,
we appreciate it.
THE COURT: Anything else, Mr. Ryan?
MR. RYAN: One question, your Honor.
THE COURT: All right.
REDIRECT EXAMINATION
BY MR. RYAN:
Q. Mrs. Mitchell, that doorway there to Shed No. 2 is wide
enough for somebody to walk through --
A. Oh, yes.
Helen Mitchell - Redirect
Q. -- with sacks of feed or fertilizer?
A. Definitely.
MR. RYAN: Thank you.
She may be excused, your Honor.
THE COURT: May she be excused?
MR. WOODS: May be excused.
THE COURT: You may step down; you're excused.
Next witness.
MR. MACKEY: Thank you, your Honor, we'll call Sharri
Furman, and Mr. Mearns will question her.
THE COURTROOM DEPUTY: Raise your right hand, please.
(Sharri Furman affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: Sharri Deanne Furman, F-U-R-M-A-N.
THE COURTROOM DEPUTY: Thank you.
DIRECT EXAMINATION
BY MR. MEARNS:
Q. Good afternoon, Miss Furman.
A. Good afternoon.
Q. Where do you live?
A. I reside in Brush, Colorado.
Q. And how long have you lived in Colorado?
A. Since the end of February.
Sharri Furman - Direct
Q. Where did you live before February 1997?
A. At Council Grove, Kansas.
Q. How long did you live in Kansas before moving to Colorado?
A. I was born and raised there.
Q. Are you married?
A. Yes.
Q. Do you have any children?
A. Three.
Q. Where do you work right now?
A. I work as a manager in a variety store there in Brush.
Q. How long have you worked at that store?
A. Since the end of February.
Q. What's the name of the store where you work?
A. Duckwall's.
Q. Did you work for Duckwall's before you moved to Colorado?
A. Yes, for a short period of time.
Q. When did you first start working for Duckwall's?
A. It was the end of September, '96.
Q. And was that in Kansas?
A. Yes.
Q. Was that in Council Grove, Kansas?
A. Yes.
Q. What did you do before working for Duckwall's?
A. I worked for Vernon Hager, doing bookkeeping and
maintaining records and stuff for him.
Sharri Furman - Direct
Q. And where was that?
A. It was in Council Grove.
Q. At that time did Mr. Hager own and operate any businesses?
A. Yes. He had convenience store, Conoco deli shop, and he
also owned Boots U-Store-It.
Q. Where does the name Boots come from?
A. It was a nickname given to him a long time ago.
Q. And you indicated that the gas station was a Conoco gas
station?
A. Yes.
Q. Where was the deli shop located in relation to the gas
station?
A. The deli shop was the gas station. And it was located on
Main Street.
Q. Where did you work, actually, physically?
A. He had an office in his home, in the basement, and that's
where I worked.
Q. And where was Mr. Hager's home in relation to these two
businesses?
A. It was in residential district, and it was 314 Washington
in Council Grove.
Q. What I'd like to do is show you what's been introduced in
evidence as Government Exhibit 2045. And do you recognize that
as a map of central Kansas?
A. Yes.
Sharri Furman - Direct
Q. Could you circle on that map where Council Grove is.
And back in 1994 and 1995, that's where you lived and
worked?
A. Yes.
Q. When did you first start working for Mr. Hager?
A. '89. 1989.
Q. And you worked for Mr. Hager from then, 1989, up until
1996?
A. Yes.
Q. And tell us a little bit more about what you actually did
for Mr. Hager.
A. I did bookkeeping. I maintained the records and stuff for
the storage units. I did billing and stuff for the deli shop.
I did billing and stuff for the storage, too. I did banking,
if Mr. Hager was out of town. Answered phones. Just general
office work.
Q. With respect to the storage facilities, did you also lease
storage facilities, meet with customers to lease storage
facilities?
A. Yes.
Q. What I'd like to do is there's a folder in front of you.
If you'd look for Government Exhibits 100, 101, 102, 103, 104,
and 105.
Do you have those in front of you?
A. Uh-huh.
Sharri Furman - Direct
Q. Have you seen those photographs before coming to court?
A. Yes.
Q. What are they, generally speaking?
A. Some of them are shots of the storage unit, and there is
two aerials of Council Grove.
Q. Do those fairly and accurately depict the storage facility
both from the air and the ground in 1994 and 1995?
A. Yes.
MR. MEARNS: Your Honor, we'd offered 100 through 105.
MR. WOODS: No objection.
THE COURT: They're received.
BY MR. MEARNS:
Q. Miss Furman, I'd like to begin first with 101.
A. Okay.
Q. And describe for us, then, if you would; as you describe
it, there's an electronic pen there.
A. Uh-huh.
Q. Do you see the storage facilities --
A. Yes, I do.
Q. -- Boots U-Store-It? Could you put a circle around the
storage facility.
And what is the road running just to the right of the
storage facility?
A. That's 177, Highway 177.
Q. And you go up in the picture, which direction is that?
Sharri Furman - Direct
A. South.
Q. So we're facing south?
A. Uh-huh.
Q. What is then up at the top of the picture, the far south
part of the picture?
A. That's Highway 56 runs up through here, and that's the
downtown.
Q. Could you put a circle around downtown Council Grove.
And that's the intersection of what two highways
again?
A. U.S. 56 and 177.
Q. What's located to the north of the storage facility; that
is, if we could look farther to the bottom of that picture?
A. It's out of town. You head towards Manhattan. You head
towards farms, nothing.
Q. Now, if we could show you Government Exhibit 100. If you
would clear the pen, if you click it. There you go.
Do you see the storage facility there?
A. Yes.
Q. Could you put a circle around there for us.
And where's the town of Council Grove in this picture?
A. It's down here.
Q. So essentially we're looking north now in another aerial
photograph?
A. Correct.
Sharri Furman - Direct
Q. Now, if you were heading from the storage facility there
north of Council Grove back south towards Council Grove, where
would you find the first public pay telephone?
A. It's at the Coastal Mart which is right here.
Q. Right there at the intersection of those two highways?
A. Right, uh-huh.
Q. If you'd look in the folder for Government Exhibit 106.
A. Okay.
Q. Do you have that?
A. Uh-huh.
Q. Did you recognize that photograph?
A. Yes.
Q. What is that?
A. That is the Coastal Mart in Council Grove.
Q. Does that fairly and accurately show the Coastal Mart in
1994 and 1995?
A. Yes.
MR. MEARNS: Your Honor, we would offer Government
Exhibit 105 and 106.
MR. WOODS: No objection.
THE COURT: Received.
BY MR. MEARNS:
Q. A moment ago you told us about the pay phone at the Coastal
Mart. Do you see it in the photograph?
A. Yes.
Sharri Furman - Direct
Q. Could you put a circle with your pen around the pay phone
that you were just describing.
Thank you, Miss Furman.
Now, if we could turn back to Exhibit 102, 102.
Describe for the jury what is depicted in that photograph.
A. Okay. That's a picture of the storage units as we're
looking at them from the highway.
Q. So we're looking east across the highway towards them?
A. Yes.
Q. How many storage units are there in Boots U-Store-It?
A. 47.
Q. And what are the range of sizes?
A. All the way from a 10-by-5 to a 10-by-26 -- 24. 10-by-24.
Q. Where is Mr. Hager's Conoco station and the deli shop in
relation to this storage facility?
A. It's south into town, and when you get to the intersection,
you take a left.
Q. You said there are 47 units in the storage facility?
A. Yes.
Q. How many different units or buildings are those 47 units?
A. Two. I mean three.
Q. Now, if we can look at Exhibit 103, please. Tell us what
we see in that picture.
A. Okay. Now we're standing back on the hill behind the
storage units and looking across towards the highway.
Sharri Furman - Direct
Q. And can you show us with your light pen the -- the three
buildings, excuse me, that you mentioned.
A. Actually, there's four.
Q. Okay.
A. Sorry. Here's one. Here's two. Three, four.
Q. And you said -- is the photograph that we're seeing now
taken on top of a hill?
A. Yes.
Q. How steep is that hill in relation to where the storage
facilities are?
A. It's -- you'd have to climb it. You couldn't just walk up.
It's pretty steep.
Q. And the road we see in the background just behind the
storage facility, that's Highway 177?
A. Uh-huh.
Q. Now, what kind of storage facility business is it; that is,
what kind of customers rent storage units?
A. We had all sorts of customers. We had just the average
citizen. We had some businessmen that would rent every once in
a while. Just depending. Whoever needed it.
Q. What were your responsibilities with respect to the storage
facility business?
A. I had it all set up on a computer system. Each unit had
its own file. If the unit was rented, I had the names and the
date that they rented it and that kind of stuff all in the
Sharri Furman - Direct
computer file. I would go out and always try to meet my
customer. We had a contract or a lease -- whatever you want to
call it -- that I filled out. Took rental payments, just
whatever needed to be done.
Q. Did you accept rental payments for the actual contracts
that you signed with the renters?
A. Yes.
Q. Was it also part of your responsibilities to collect rental
payments for the other storage units, not the ones that you
personally rented?
A. Oh, yeah.
Q. What did you do with those, the rental payments that you
would collect?
A. I usually -- if I collected them out here at the facility,
I usually always just took them back to the office. We had a
little place that we kept money there, you know. If there was
quite a bit, I would bank it. If Mr. Hager wasn't around.
Q. By "bank," meaning you'd deposit the money?
A. Deposit, uh-huh.
Q. Did you maintain a computer file for each of the rental
units?
A. Yes, I had one for each unit.
Q. And what kind of information did you keep in that computer
file?
A. Well, whatever I had: Name, address, sometimes a phone
Sharri Furman - Direct
number. That would be about -- how much each unit was, you
know, as far as per-month rental.
Q. What the rental fee was?
A. Was, uh-huh.
Q. Did you keep track of when the rental payments came in?
A. Not exact dates, always, but pretty close.
Q. And did you -- how did you organize the computer files?
A. Each unit had its own -- I had file numbered 1 through 47.
And so if -- whoever was in that unit at the time, their name
was on there. When they left, their name came out and somebody
else would go in, so . . .
Q. Were rental agreements signed between Boots U-Store-It and
a customer for each rental?
A. No.
Q. Under what circumstances were agreements not signed?
A. If it wasn't handled by me, there was a good possibility.
Boots didn't always go out and have a contract signed or
anything. I usually always tried to, though.
Q. Did you always personally -- that is, in person -- receive
the monthly rental payments from the customers?
A. No.
Q. How else would you or Boots U-Store-It receive rental
payments?
A. Of course by mail. Some of our customers were out of town.
Also he allowed his customers to pay at the Conoco deli shop.
Sharri Furman - Direct
Q. When a payment was -- when a rental payment was made at the
Conoco gas station, at the deli shop, was any paperwork
created?
A. Yes, the Conoco had credit card slips that whoever was
working at the time would fill out, usually with name and a
unit number and the amount that they received.
Q. What happened to that record, that document at that point?
A. At the end of the day, when all the Conoco business was
sent to the house or to the office, it would come with that, to
the house.
Q. Back to you, then, in the office?
A. Uh-huh.
Q. What did you do with those documents?
A. We usually had them stashed somewhere around the office.
We weren't real organized.
Q. Okay. But you kept all of those records?
A. Most all of them. Not always.
Q. In 1994, were rental payments due on any particular day of
the month?
A. If you rented the unit on a certain day, that's when it was
due. So if you went and rented a unit on like the 10th, when
we initially got the payment on the 10th, then you would be due
again the 10th of the following month.
Q. So there was no one set date for all customers?
A. Not in '94, no.
Sharri Furman - Direct
Q. So I take it, then, that you were receiving rental payments
for the different units on all different days of the month?
A. Yes.
Q. Was it possible for a customer to pay monthly rental for
several months in advance?
A. Sure.
Q. You said that if Mr. Hager sometimes rented the unit, that
there was no contract; is that right?
A. Yes.
Q. Tell us how those rentals would take place, then.
A. Almost everyone called us at the house because -- I mean we
weren't in a prominent place. So if someone called over the
phone, Mr. Hager always knew what unit was available. So he
would just usually ask the person what size they wanted, and he
could tell them if we had one or not. And he'd send them out
there, let them know how much it was. And then they could pay
at the deli shop, and he would never have them sign a contract
or anything.
Q. If there was no rental agreement, did you still maintain a
computer file?
A. Yes. He usually always got a name, an address for me to
put in the file.
Q. He would give you that information?
A. Uh-huh.
Q. What I'd like to do now is to direct your attention to
Sharri Furman - Direct
October 1994. Based upon your review of the records from Boots
U-Store-It, did someone beginning renting a unit in October of
1994?
A. Yes.
Q. What was the customer's name?
A. Joe Kyle.
Q. And what shed or unit number did Joe Kyle rent?
A. He rented No. 40.
Q. And did you open and prepare a computer file for that
rental?
A. Yes.
Q. Tell us what you did.
A. I got the name from -- it was either on my desk or
whatever, and I put -- I opened up Unit No. 40, my card file,
and put in the name. And I believe I had an address and stuff
for him, also.
Q. Was there a rental agreement signed for that rental?
A. No.
Q. What was the amount of the monthly rent for that unit?
A. That unit was $30 a month.
Q. And what happened to the initial rental payment?
A. It was deposited in the bank.
Q. Before coming to court, have you been able to determine the
rental history for Unit 40 to this Joe Kyle?
A. Yes.
Sharri Furman - Direct
Q. How did you do that?
A. I just went through our records that we had as far as
deposits and the receipts and stuff that we had and determined
how many months it was.
Q. What I'd like you to do is to look into the folder that you
have for Government's Exhibits 107, 107A, 108, 109, 111, 111A,
and 112.
A. Okay.
Q. Got them all.
Do you recognize those documents?
A. Yes.
Q. Have you reviewed them prior to coming to court?
A. Yes.
Q. What do you recognize them to be?
A. Some of them are deposit tickets for the bank, and others
are receipts that we received from over at the Conoco station
where payments were made.
Q. And are those all business records that relate to the
rental by Joe Kyle of Unit No. 40?
A. Yes.
MR. MEARNS: Your Honor, we would offer 107, 107A,
108, 109, 109A, 111, 111A, and 112.
MR. WOODS: No objection.
THE COURT: They are received.
BY MR. MEARNS:
Sharri Furman - Direct
Q. And just so the record is clear, 107A is a more legible
copy of 107.
A. Just a moment.
Q. I'm sorry, I should have done that as we went along.
A. Yes.
Q. And 111A is also then a more legible copy of 111?
A. Yes.
Q. If you would now look at -- for Government Exhibit 114.
A. Okay.
Q. And do you recognize that?
A. Yes.
Q. What is that?
A. This is a record that came off of our computer. It's a
printout of one of our screens that we had.
Q. And is that a printout of the rental record for the Joe
Kyle rental of Unit 40?
A. Yes, it is.
MR. MEARNS: Your Honor, we would offer Government
Exhibit 114.
MR. WOODS: No objection.
THE COURT: 114's received.
BY MR. MEARNS:
Q. Miss Furman, if we could begin with 107. Why don't we
publish 107A, since that's the more legible copy. And tell the
jury what this is, please.
Sharri Furman - Direct
A. This is one of the receipts that we got from the Conoco
station when a payment was made over there.
Q. Okay. Beginning with the handwritten information there at
the top, what does that say there?
A. It says, "Joe Kyle, Unit 40." We have the date, which
is --
Q. What is the date that's handwritten there?
A. 10-17-94.
Q. And what is the information over on the lower right-hand
side?
A. That's the amount that they received, $30.
Q. Was it common practice for the employees at the Conoco gas
station to have the person making the payment sign the receipt
acknowledging the payment of the rent?
A. Some did, some didn't.
Q. In this case, was it signed?
A. Yes, it was.
Q. And referring then to the lower left-hand corner, is that
where the individual signed it?
A. Yes.
MR. MEARNS: Your Honor, at this time I'd like the
Court to publish a stipulation that the handwriting in the
lower left-hand corner where it says "customer signature" was
written by Mr. Terry Nichols.
MR. WOODS: Yes, your Honor. That's our stipulation.
Sharri Furman - Direct
THE COURT: All right. And so we accept that
agreement as the true fact.
MR. MEARNS: Thank you.
BY MR. MEARNS:
Q. Miss Furman, now turn to 108.
A. Okay.
Q. And tell the jury what that is.
A. This is a deposit slip that we used for the storage units.
Q. And you have the original there.
A. Uh-huh.
Q. If you could turn it over to the back side, I believe.
A. Okay.
Q. And what does it reveal there on line 6?
A. Line 6, "J. Kyle." Unit No. was 40, $30. The "C"
represents that it was cash.
Q. Okay. And that's the deposit slip for the previous rental
payment we looked at just a moment ago, 107?
A. Yes.
MR. MEARNS: If we could publish 111A, please.
BY MR. MEARNS:
Q. And what is that?
A. That's another ticket that was come from the deli shop, the
Conoco station.
Q. And again, at the upper left-hand corner it indicates that
it was the Joe Kyle rental, Unit 40?
Sharri Furman - Direct
A. Uh-huh.
Q. And what is the date of the payment on that?
A. February 9, 1995.
Q. And the lower left-hand portion of the document, there is a
signature for Joe Kyle; correct?
A. Uh-huh.
Q. Is that the signature of the customer?
A. Yes.
MR. MEARNS: Your Honor, again, there's a stipulation
with respect to the handwriting of the customer's signature;
that it's written by Mr. Terry Nichols.
MR. WOODS: Yes, your Honor. That's our agreement.
THE COURT: So that the words "Joe Kyle" there were
written by Mr. Nichols.
BY MR. MEARNS:
Q. Finally with respect to this, if we could turn to 114. And
if you could explain to the Court and the jury what --
A. This is our computer printout. This is the file that I
kept in '94 of each unit. I had one on each unit, and this one
was No. 40.
Q. And in the lower right-hand corner, there is an entry
there. I think it says "LST," last payment. Is that right?
A. Uh-huh.
Q. And what's the date that's written there?
A. 3-15-95.
Sharri Furman - Direct
Q. At some point in 1995, was there a change in the way
that -- when rental payments became due?
A. Yes, we did. We got a new computer system. And we did
some prorating on some of the customers, depending on what time
of the year -- time of year; excuse me -- time of the month
that they had rented on. And we tried to do everything from
the 1st to the 10th, so we had some fluctuation there at the
first of the year.
Q. And at that point, did there become a date within each
month when all rental payments were due for all customers?
A. Yes.
Q. What date did that become?
A. The 1st.
Q. What does this reflect? What does this information reflect
in terms of the date being March 15, '95? How long was this
Unit 40 paid through for Joe Kyle? That is, when did the
rental expire?
A. The 1st of April.
Q. Now, I would like to turn your attention to November 7,
1994.
A. Uh-huh.
Q. Did you personally receive a phone call about another
possible rental on that day, November 7?
A. Yes, I did.
Q. Where were you when you got the call?
Sharri Furman - Direct
A. I was in the office.
Q. Where was your office located?
A. It was at 314 North Washington.
Q. Was the caller a man, or a woman?
A. A man.
Q. Did he identify himself?
A. I believe that he did, but I don't remember.
Q. What did this man say?
A. He was interested in a storage unit.
Q. What did you say?
A. I told him that we had some available, you know, and I
don't remember my exact conversation; but we set up a time, and
I met him at the units.
Q. When was the time that you arranged in relation to the time
that you received the call?
A. I went out as soon as I got my contract and hung up the
phone and could get out there.
Q. Was there any reason that you went out right away?
A. The customer was from out of town, and he was just going to
be there for a while, so . . .
Q. And did you in fact go out there that same day?
A. Yes.
Q. Tell us what happened when you arrived.
A. Somebody was already waiting on me; I assumed, you know,
that's who I spoke with. I pulled up to where he was parked,
Sharri Furman - Direct
and we started filling out a contract.
Q. Did you speak to him before you started filling out the
contract?
A. I'm sure I did.
Q. Okay. And did he identify himself at that point?
A. I'm not sure at that particular point -- I'm sure he did
say he was who called me.
Q. During the telephone conversations, did you give this man
directions to the storage facilities?
A. No. He knew where they were at.
Q. Describe the man you met that day.
A. He was about 5' 9", probably 6-foot. He had brown hair,
but not real dark, wore glasses.
Q. If that man were in the courtroom today, would you be able
to identify him?
A. I think so.
Q. Could you take a look around the courtroom and see if you
can tell us the man you saw that day.
A. Yes.
Q. Do you see the man?
A. Yes.
Q. Could you point out where he's seated and what he's
wearing?
A. He's setting (sic) over here at the table. He's got on a
blue jacket with a blue, looks like, shirt and a white T-shirt.
Sharri Furman - Direct
MR. WOODS: Your Honor, we stipulate the
identification. It's never been contested.
THE COURT: All right. Thank you.
BY MR. MEARNS:
Q. When you arrived at the storage facilities, did you have a
conversation with Mr. Nichols?
A. I'm sure I did.
Q. Did he tell you what kind of storage unit he was looking
for?
A. I don't remember if we discussed size or anything, really.
We pretty much had some picked out, so I would say we knew what
we were looking for.
Q. And did you identify any units that were available?
A. Yeah.
Q. How many available units did you identify?
A. I believe we had two on that end at the time.
Q. When you say "on that end," what are you referring to?
A. Well, when I got there, he was clear to the back side of
the units, which was where the units were.
Q. Well, let's look at Government Exhibit 105, which is in
evidence. I think it will come up on the screen in one moment.
What do we see in that picture?
A. This is the east end of one of the buildings.
Q. What's behind us to the right?
A. That's the propane company.
Sharri Furman - Direct
Q. Okay. Well, but directly behind this area of the storage
facility.
A. That's more storage. And that big hill that we talked
about earlier.
Q. So this is the back side of the facility?
A. Right.
Q. And when you arrived, Mr. Nichols was already in this area
of the storage facility?
A. Uh-huh.
Q. Did Mr. Nichols inspect the unit that day?
A. Yes. I believe we looked at both 36 and 37.
Q. And did you prepare a rental agreement that day?
A. Yes.
Q. Tell us about that procedure.
A. It's just a contract that states the speculations or
restrictions of the units and stuff; and at the top there's a
place to put the name and address, phone number, different
information like that. And we filled the top of it out.
Q. If you would look in your file there for Government Exhibit
113.
A. Okay.
Q. Do you recognize that?
A. Yes.
Q. And what is that?
A. This is the contract that we did.
Sharri Furman - Direct
Q. And was that record created and then maintained by Boots
U-Store-It?
A. Most of the time.
Q. But was this particular --
A. This one was, yes.
MR. MEARNS: Your Honor, we would offer Government
Exhibit 113.
MR. WOODS: No objection.
THE COURT: 113 received.
BY MR. MEARNS:
Q. Can you tell what information is there, is reflected at the
top? The handwritten information, please.
A. Okay. I wrote in the unit number, which was 37; who it was
to, Ted Parker; an address, 3616 North Van Dyke, Decker,
Michigan, and the ZIP code. Then there's a phone number, and I
also wrote in the date that we did the lease and the possible
termination.
Q. Where did you get the name "Ted Parker" and the address
that's written there?
A. From the man that I rented it to.
Q. From Mr. Nichols gave you that --
A. Yes.
Q. And the monthly rental was $30 there?
A. Yes.
Q. And that's the date, November 7, 1994?
Sharri Furman - Direct
A. Uh-huh.
Q. Did you ask Mr. Nichols to sign the agreement?
A. Yes.
Q. And did he?
A. Yes.
Q. Did he use the same pen that you had used to fill out this
information?
A. Yes.
Q. And if we could focus, then, down at the bottom of the
agreement. Is that the signature in the lower right-hand
corner?
A. Yes.
MR. MEARNS: Your Honor, there's a stipulation that
the handwriting, signature in the lower left-hand side, is the
signature of Mr. Terry Nichols.
MR. WOODS: Yes. That is our stipulation.
THE COURT: All right. Once again, we accept that
agreement.
BY MR. MEARNS:
Q. Did Mr. Nichols give you any money that day?
A. Yes, he did.
Q. How much money did he give you?
A. $90.
Q. What did you do with that money?
A. I took it back to the office.
Sharri Furman - Direct
Q. So with the $30 -- How long --
A. That would be three months.
Q. If you would look at Exhibit 110.
A. Okay.
Q. And what is that?
A. This is a deposit ticket.
Q. And was that a deposit ticket that was created and then
kept in the normal course of business?
A. Yes, it is.
MR. MEARNS: Your Honor, we would offer 110.
MR. WOODS: No objection.
THE COURT: Received, 110.
BY MR. MEARNS:
Q. And if we could flip over -- well, I'm sorry. If we could
go on the front side. What is the date of this deposit ticket?
A. This one is 2-3-95.
Q. Okay, now if we could flip over to the back. So that's
February 3, 1995?
A. Right.
Q. Is there a deposit reflected there for an additional
payment by Ted Parker for Unit 37?
A. Yes.
Q. What line is that?
A. 6.
Q. And that is an additional three months' rent?
Sharri Furman - Direct
A. Uh-huh.
Q. So if that additional rent came in in the early part of
February, how long would that extend the rental of Unit 37?
A. To the first part of May.
Q. I want to direct your attention back to your initial
meeting with Mr. Nichols on November 7. Did you see what kind
of vehicle he was driving?
A. Yes, I did.
Q. Could you describe that for us?
A. It was a blue pickup, and it had a white camper shell or
topper on the back of it.
Q. I'd like to have you look at what is in evidence as
Government Exhibit 51.
Is that the pickup Mr. Nichols was driving that day?
A. Looks like it, yes.
Q. How long were you with Mr. Nichols on November 7, 1994?
A. Maybe 15 minutes.
Q. During the 15 minutes or so that you were with him, did he
ever tell you that he'd rented another unit at your facility
under the name of Joe Kyle?
A. No.
Q. Did he ever tell you that his true name was Terry Nichols?
A. No.
MR. MEARNS: No further questions.
THE COURT: Mr. Woods.
Sharri Furman - Direct
MR. WOODS: Yes, your Honor, thank you.
CROSS-EXAMINATION
BY MR. WOODS:
Q. Good afternoon, Miss Furman. My name is Ron Woods. I've
been appointed to help Terry Nichols in this case.
I want to thank you for talking with our investigators
when they went over there to Council Groves and Boots Hager
about the rental and you provided copies of the records for us.
I had just a couple of questions on these records that
we've just gone over. On the first unit, which was No. 40 in
the name of Joe Kyle --
A. Uh-huh.
Q. -- you mentioned that there was a time when you switched
over on the computer records and credit was given to the
rentals because you were trying to line up all the dates for
the 1st of the month; is that correct?
A. Yes.
Q. Did you send out any notice of that to the renters; that
that's what you had done, is credited the time?
A. For some of them, yes, we did. It kind of depended on what
time of the month that they had rented the unit.
Q. Okay. Now, you're aware that Mr. Nichols moved out of the
units there in March '95, when he bought his house in
Herington?
A. I am not real sure when they moved out, no.
Sharri Furman - Cross
Q. Okay. Did y'all go by and check the units, see when
they're vacant so that you could rent them?
A. Mr. Hager usually always knew, yes.
Q. Okay. Okay. So the record that you showed as to March 15,
'95, a payment of $30: Did you actually have a record that
reflects you received $30 on March 15, '95?
A. I'm not real sure.
Q. This is for Unit 40 in the name of Ted Kyle -- Joe Kyle?
A. I'm not real sure if we have one that was dated in March or
not. The records weren't always keepen (sic).
Q. Right. And you've been very kind in pointing out that this
was sort of a haphazard thing and it wasn't -- I mean it's not
the biggest business venture --
A. Right.
Q. -- that you need to keep exact records for.
A. Right.
Q. But was Boots Hager aware that Mr. Nichols was moving out
in mid March, '95?
MR. MEARNS: Objection.
THE COURT: Sustained.
BY MR. WOODS:
Q. If you know.
MR. MEARNS: Objection.
THE COURT: Well, I don't know how she could know what
another person was aware of.
Sharri Furman - Cross
MR. WOODS: Okay.
BY MR. WOODS:
Q. Did Mr. Hager ever tell you that Unit 40 was now available
for rental in mid March of '95?
A. I'm assuming, that, yes, he did, because we cleared it.
Q. So the fact that -- when you say you cleared it, what do
you mean by that? Could you explain it?
A. We showed that the unit was empty.
Q. Okay. And did anybody ever go by and inspect what was
inside the units?
A. No, we did not.
Q. Did Mr. Nichols tell you what he was putting in the units
when he rented them?
A. No, he did not.
Q. As to the size of No. 40, can you tell us what size locker
that was?
A. Yes. That was a 10-by-5.
Q. And what is the floor material made of?
A. They are cement.
Q. And the walls?
A. They're just metal buildings.
Q. And is there 2-by-4 there on the floor that the metal or
the tin is fastened to?
A. I'm sorry. I do not know that.
Q. Okay. What about Unit No. 37: What's the size of it?
Sharri Furman - Cross
A. It's also a 10-by-5.
Q. And these are metal doors that slide up like that?
A. Yes, they were.
Q. And you saw -- when did you leave Council Grove?
A. I moved to Colorado the end of February of '97.
Q. Okay. You saw those units shortly after May '95 when the
FBI came to inspect them?
A. Yes.
Q. You see all that black fingerprint powder all over the
walls and doors?
A. Yes.
Q. That stayed there quite a while, didn't it?
A. I can't tell you.
Q. It was over there several months later, wasn't it?
A. Yes.
Q. When we came over?
Now, both units had cement floors, to your knowledge;
is that correct?
A. Yes, they did.
Q. And the walls were metal?
A. Yes.
Q. Is that sort of a sheet metal, like a tin almost?
A. Yeah. It's the ripple kind.
Q. Right. Okay. And then it had wooden frames inside to
hold --
Sharri Furman - Cross
A. There again, I'm not sure.
MR. WOODS: Okay. Okay. Thank you so much. We
appreciate it.
THE COURT: Anything else of this witness?
MR. MEARNS: No, your Honor. She may be excused.
MR. WOODS: She may be excused, your Honor.
THE COURT: You may step down. You're excused.
Next.
MR. MACKEY: We call at this time Mr. Frederick
Schlender.
THE COURT: Thank you.
THE COURTROOM DEPUTY: Raise your right land, please.
(Frederick Schlender affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
THE WITNESS: Okay.
THE COURTROOM DEPUTY: Would you state your full name
for the record and spell your last name.
THE WITNESS: It's Frederick Allen Schlender, Jr. The
last name is S-C-H-L-E-N-D-E-R.
THE COURTROOM DEPUTY: Thank you.
DIRECT EXAMINATION
BY MR. MEARNS:
Q. Good afternoon, Mr. Schlender.
A. Good afternoon.
Q. Where do you live?
Frederick Schlender - Direct
A. I live in Burden, Kansas.
Q. Where is Burden, Kansas?
A. Burden, Kansas, is halfway between Hutchinson and Newton,
Kansas, just northwest of Wichita.
Q. How long have you lived in that area of Kansas?
A. I've lived there all my life, except for the four years of
college that I attended.
Q. Where did you go to college?
A. I attended college at McPherson, Kansas. McPherson
College.
Q. Did you graduate from McPherson College?
A. Yes, I did.
Q. When did you graduate?
A. I graduated in 1980.
Q. And are you married, sir?
A. Yes, I am.
Q. Do you have any children?
A. I do have.
Q. How many children do you have?
A. I have one daughter.
Q. How old is your girl?
A. My daughter is nine years old.
Q. Where do you work?
A. Right now, I'm self-employed on our family farm.
Q. How long have you been working on your family farm?
Frederick Schlender - Direct
A. It's been since the first of August of this year.
Q. The first of August of 1997?
A. 1997; correct.
Q. Where is your farm located?
A. The farm is located at Burden, Kansas.
Q. Where did you work before August of 1997?
A. I worked for Mid-Kansas Co-op in McPherson, Kansas.
Q. When did you start working for the Mid-Kansas Co-op?
A. Started working there in May of 1979.
Q. What is the Mid-Kansas Co-op?
A. Mid-Kansas Co-op is a cooperative that is farmer-owned that
handles ag products for producers and also consumers' products
for consumers within the communities we service.
Q. And what was your position at the co-op when you resigned
in August of '97?
A. I was the location manager there.
Q. For what location?
A. At McPherson.
Q. I'd like you to take a look at what's been introduced into
evidence as Government Exhibit 2045.
And could you show us on that map approximately where
Burden, Kansas, is, where you live and now farm.
A. Burden, Kansas, is right there.
Q. Okay. Just a little northwest of Wichita?
A. That's correct.
Frederick Schlender - Direct
Q. How far north and west of Wichita is it?
A. It's approximately 40 miles.
Q. And you worked in McPherson?
A. That is correct.
Q. Could you put a circle around McPherson there on the map.
A. That thing doesn't line up on the -- there it is.
Q. About there. Thank you.
When you were working at the Mid-Kansas Co-op, how
many branches of co-op were there?
A. When I was working there, I believe there's 19 branches of
our co-op.
Q. And they're all located there, roughly speaking, in central
Kansas?
A. That's correct.
Q. What were your duties and responsibilities when you were
the location manager or branch manager?
A. I was in charge of the operations of the McPherson location
there, involved all the elevators and the service station and
the ag products.
Q. When you say "ag products," what do you mean?
A. Ag products would be fertilizer, chemicals that are
involved in the production.
Q. What other kind of products did you sell to customers?
A. Also had consumer products there: lawn, garden products;
had feed; TBA products, which is tires, batteries, accessories,
Frederick Schlender - Direct
oils, things of that nature.
Q. Did you provide services to your customers?
A. Yes, we did.
Q. What kind of customers came into the McPherson branch of
the Mid-Kansas Co-op?
A. We had a mixed type of customers. We had quite a bit of
consumer traffic out of our community plus the farmer traffic
that came into our store.
Q. What's the difference between consumer traffic and your
farmer customer?
A. Farm customers are the larger-volume customers that come
and buy fertilizer and chemicals and oil products or fuels and
things of that nature. And consumers are those who come in for
the dog foods, lawn-and-garden fertilizer, lawn-and-garden
chemicals.
Q. What were your -- what kinds of things did you do on a
day-to-day basis?
A. Day-to-day basis, as I said before, I oversaw the
operations of our McPherson location. And then also I dealt
with the public quite often there in the store.
Q. You would actually deal with customers and do transactions?
A. That is correct.
Q. Did you also have any role in custom fertilizer
applications?
A. I did. I did a lot of the sign-up work. That's what I
Frederick Schlender - Direct
started at when I started in '79 with Mid-Kansas Co-op, was the
custom applicator, and I still stayed with that a little bit.
Q. When you say "a little bit," what do you mean?
A. Oh, I would run in the evenings and sometimes days when I
had the employees gone.
Q. What were the hours that the co-op was open for business in
1994?
A. Co-op business hours were 7:30 in the morning to 5:30 in
the evening. And that was Monday through Friday. And then on
Saturday, 7:30 till noon.
Q. And what were your hours?
A. Most of the time, I would be there between 5 and 6 in the
morning and go till 7:30, 8:00 at night.
Q. How many employees, besides you, were working in the
McPherson branch in the fall of 1994?
A. At the McPherson west location there, in my office, there
was four employees there.
Q. And who were those four employees?
A. Okay. Besides myself, it was Jerry Showalter, Donna
Schaefer and Tony Hazelton.
Q. So there were four including yourself?
A. Right. Excuse me.
Q. There were times during the day, in the fall of 1994 --
were there times during the day when the -- when your branch
was more busy than other times?
Frederick Schlender - Direct
A. There's times usually first in the morning and toward the
latter part of the day when we ran into the consumer market,
when they got off work and people would stop off at our store
there.
Q. Describe, if you would, the physical layout of the
McPherson branch.
A. The physical layout of our store, where we had our display
area, is the north building that faced the roadway; and that
had display area where we had feed and lawn-and-garden products
and dog food and things of that nature. And also had office
area.
In the back of that, we had a bay area, service work
on cars and trucks and that.
Directly south of that building, the other building
that faced the road, was our warehouse, which also had bulk
fertilizer storage in back of it.
Beyond that, we had liquid-fertilizer storage to the
northwest of our main building and also ammonia storage behind
our warehouse and fertilizer storage.
Q. If you would take a look in the folder that sits in front
of you for Government's Exhibits 64, 65, 66, 67, and 68.
Do you have those in front of you?
A. Okay. All five of them; right.
Q. Have you had an opportunity to look at those photographs
before coming to court today?
Frederick Schlender - Direct
A. Yes, I have.
Q. Are those accurate pictures of how the McPherson branch
looked in the fall of 1994?
A. Yes, it was. Yes, they are, I should say.
MR. MEARNS: Your Honor, we'd offer Exhibits 64
through 68, inclusive.
MR. WOODS: No objection.
THE COURT: They are received.
MR. MEARNS: Your Honor, and with the Court's
permission, I'd like to publish first Exhibit 64.
THE COURT: All right.
BY MR. MEARNS:
Q. And using your light pen there, if you could tell us what
we see. If you could click there once so you clear it.
A. Okay.
Q. Describe, then, quickly the buildings that you see there.
A. Buildings as I described earlier -- the one I'm putting the
X on is the -- our display area, office area, our bay area for
car service.
Directly to the south of -- or to the left of that is
the warehouse area where we stored products on pallets, mainly
softener salt and fertilizer products such as that.
Q. What are the large tanks that we see directly behind that?
A. These that I've put an X on back here are ammonia storage
tanks that we filled the smaller tanks which I'm going to X
Frederick Schlender - Direct
right now, in the two areas.
Q. And is that a liquid, or a gas that's contained in that
tank?
A. Under pressure, that is a liquid. When released, it's a
gas.
Q. And what do you do with that for your customers?
A. That is a product that they inject into the ground for a
nitrogen source.
Q. It's a fertilizer?
A. It's a fertilizer; correct.
Q. Now, if you would turn to 65.
And if you'd clear the pen there.
What do we see in that picture?
A. That is our display area and office area and where the
service bay is in the back of that.
Q. And is that the customer parking there directly in front?
A. That is correct.
Q. Is that the main building that customers come into on a
regular basis?
A. That is the first building that they would come to;
correct.
Q. Let's turn to 66, please. What do we see there on the left
side?
A. On the left side of the open doorway is the warehouse area
where we stored pallets.
Frederick Schlender - Direct
Q. That's the larger building that we saw on the left side of
the aerial photograph?
A. Right.
Q. And that's the customer building on the right?
A. On the right.
Q. And now 67, please. What is that?
A. That is inside the warehouse area where -- the storage
area.
Q. And finally, 68. What is that?
A. That is the -- our display area. The view we have there is
looking out from the office area, looking to the front of the
building.
Q. And is that the counter where transactions are conducted?
A. That is the counter where transactions are conducted;
correct.
Q. And the angle of this photograph is from where the
employees would be standing looking out to where the customers
would be standing. Is that correct?
A. That's correct.
Q. Thank you. I want to direct your attention now to a
specific transaction in the fall of 1994. Were you working at
the co-op then?
A. In the fall of 1994; correct.
Q. Do you recall ever selling 2,000 pounds of ammonium nitrate
fertilizer to a man who identified himself as Mike Havens?
Frederick Schlender - Direct
A. Yes, I do.
Q. What do you recall about how that transaction started?
A. Individual came into our office area and display area there
and came across; and I was behind the counter, as viewed this
Exhibit No. 68, and greeted him there. And asked how I
could -- what I could do for him.
He asked for a ton of ammonium nitrate.
Q. What did you say in response?
A. At that time I grabbed a ticket to proceed with the
transaction and started talking with the individual, asked him
what he was using the product for.
Q. And did he respond at all?
A. Yes. He responded by -- said he was planting wheat.
Q. Did he say what he was going to do with the ammonium
nitrate in connection with planting wheat?
A. He was using it to fertilize the wheat when he was planting
the wheat.
Q. Did he describe how he was going to use the fertilizer when
he planted the wheat?
A. He was going to put it on with a drill when he was planting
the wheat. A mechanism on the drill.
Q. Explain how that would work.
A. There was a -- as I described, in the back on the drill
itself, there's a compartment where the fertilizer goes in, and
there are types of settings there so you adjust the setting to
Frederick Schlender - Direct
fertilizer going on and distribute it as you plant the seed.
Q. So the primary purpose of the drill is to cut a hole in the
ground and plant the seed?
A. That's correct.
Q. And at the same time you can also apply fertilizer?
A. That's correct.
Q. What did you say to the customer when he indicated that's
what he intended to use the fertilizer for?
A. I talked a little with him about an alternative source that
would have been cheaper source for him, called urea source, and
that would have been in bulk; and he said he couldn't handle a
bulk product, he needed to be in bag.
Q. What do you mean -- what's the difference between bulk and
in the bag?
A. Bulk would have to have been hauled in some type of
container that would control the -- you know, from blowing out
or falling out on the road, of that nature.
Q. Did this man say where he was planting the wheat?
A. He said he was planting it in the Durham area.
Q. Where is Durham in relation to McPherson?
A. Durham is northeast of McPherson. It's approximately
25 miles.
Q. What did you say to -- back to the customer when he told
you that he needed it in the bags, as opposed to in bulk?
A. At that time proceeded to write the transaction, write the
Frederick Schlender - Direct
ticket, put down the forty 50-pound bags of ammonium nitrate.
Q. When you say "a ticket," what are you referring to?
A. That's the counter ticket that we use on all transactions
that we do at our counter area there that's displayed in the
No. 68 there.
Q. Let me show you what's in evidence as Government's Exhibit
72.
Is that a blank ticket or receipt of the type that you
were just referring to?
A. That's correct.
Q. Tell us, then, what happened in connection with this
transaction.
A. As I said, we -- I proceeded to write down the forty
50-pound bags of the ammonium nitrate fertilizer and at that
time with the person asking about -- saying that he was a
farmer, proceeded to ask him his name because of future
purposes for the cooperative being a farmer-owned, if he became
a patron -- or a stockholder later on, he would be eligible for
the dividend from this purchase there.
Q. Are there members or stockholders in the Mid-Kansas Co-op?
A. Yes, there are. We had approximately 2,000 member owners
of our cooperative.
Q. Let me show you what has been marked in evidence as
Government Exhibit 75. I believe you have the copy in the
folder there.
Frederick Schlender - Direct
A. Okay.
Q. What is that?
A. That is the yellow copy of the counter ticket that we have
viewed earlier. That is the copy that is kept at our location
for our records.
Q. And is that the actual yellow copy of the receipt that you
prepared that day with this customer?
A. Yes, it is.
Q. Do you recognize the handwriting on the document?
A. Yes, I do.
Q. Whose handwriting is that?
A. That is mine.
Q. And could you describe for us the information that's
reflected on that receipt, the handwritten information that's
reflected on the receipt?
A. Okay. At the top of the patron account number is a 10.
That's asking the patron if he was a member of our cooperative,
and he said he wasn't. I proceeded to put a 10 there.
Q. And that 10 signifies the customer is not a member?
A. Not a member.
Q. What is the date, then, that is reflected to the right?
A. The date is 10-18-94.
Q. That's October --
A. October 18, 94; correct.
Q. The next entry?
Frederick Schlender - Direct
A. The next entry is the name, Mike Havens.
Q. And where did you get the information to put there?
A. I asked the individual for his name.
Q. And what did he say?
A. He told me "Mike Havens."
Q. What's the next information that's reflected there?
A. The "sold by" is initials, RS, which would be my initials.
Q. Okay. Continue there to the right.
A. To the right of that is the type of transaction, which is
circled "cash."
Q. And did the customer indicate that was the way he was going
to pay for the trans -- the purchase?
A. That's correct.
Q. And continuing down below that, then?
A. Then I put down the "40," and there's a slash in between
the 50-pound, which indicates 50-pound bags of 34-0-0, which is
the ammonium nitrate fertilizer.
Q. And what's, then, indicated to the right there?
A. That's price column, is 5.40. And then extended out from
the 40 tons -- 40 is $216, for a total.
Q. How long had you worked at this branch of the co-op?
A. At this time, that would have been approximately 16 years.
Q. By that time, did you come to know some of your regular
customers?
A. Knew the regular customers well, yes.
Frederick Schlender - Direct
Q. Did you recognize this man who identified himself as Mike
Havens?
A. No, I did not.
Q. In the fall of 1994, did you have other customers that
purchased ammonium nitrate fertilizer like this?
A. Yes, we did. Primarily in the lawn-and-garden area, for
fertility purposes there.
Q. I'm sorry. For?
A. For fertility purposes for the lawn and garden.
Q. For fertilizing grass?
A. Fertilizing grass, mainly.
Q. Was there ever a time that it was common to use ammonium
nitrate, prills, to fertilize wheat like this man Mike Havens
was?
A. Yes, there was.
Q. When was that?
A. The most recent time would have been in the 70's.
Q. If we could look back at that receipt for a moment.
The receipt reflects down there in the lower
right-hand corner that you charged sales tax; is that correct?
A. That is correct.
Q. Did you have a conversation with this man about sales tax
that day?
A. Yes, I did. Farmer input, which he designated that he was
using that, to plant wheat, are not sales taxed. If he wanted
Frederick Schlender - Direct
to sign an exemption, he did not have to pay sales tax.
Q. Did you explain that to the customer that day?
A. Yes, I did.
Q. Did he respond in any way?
A. He responded by saying that he would rather pay the sales
tax.
Q. You have, I assume in other transactions, filled out those
tax-exemption certificates?
A. Yes, I have.
Q. How long does it take to fill out one of those tax-
exemption certificates?
A. A matter of seconds, 30 seconds.
Q. Does a customer need to sign the tax-exemption certificate?
A. Yes, he does.
Q. When you sell a product, do you require the customer to
sign your receipt or your ticket?
A. Not with a cash transaction.
Q. Who loaded the fertilizer for this customer on October 18,
1994?
A. I loaded the fertilizer for this customer.
Q. How was it packaged?
A. It was packaged -- the forty 50-pound bags are packaged on
a 4-by-4 wooden pallet, and it has a shrink-wrap around it to
contain the bags together.
Q. And where did your co-op store it that day on October 18?
Frederick Schlender - Direct
A. That was stored in the warehouse south of the main office
area.
Q. After you completed this -- the receipt for the
transaction, what did you do with the copies of the receipt?
A. The copies of the receipt, the original white copy, which
is the top copy, and the yellow copy stay there at the office.
The pink copy or the third copy is given to the customer.
Q. Did you do that that day?
A. I did.
Q. What happened next?
A. I did then ask the -- excuse me -- the individual to back
over to our warehouse area so we could proceed in loading the
pallet.
Q. When you asked the customer to do that, did he ask you
where he was supposed to go?
A. No, he did not. He pretty well indicated he knew where
that was.
Q. Let me show you again Government Exhibit 64.
Can you show us on that photograph with your light pen
where you directed the customer to go.
A. Directed him to back over in front of the warehouse, which
is right here.
Q. And at that time, the pallet of fertilizer was contained in
that warehouse?
A. That's correct.
Frederick Schlender - Direct
Q. What happened next?
A. After I proceeded to ask him to do that, I went to the back
of our tire-service area, car-service area, to get a forklift
to load the pallet of ammonium nitrate.
Q. What did you do?
A. I then drove it over to the warehouse, where I proceeded to
get the pallet and brought it out to load.
Q. And did you load the fertilizer that day?
A. Yes, I did.
Q. Now, while you were inside the customer area, did you have
an opportunity to look at this person?
A. Yes, I did.
Q. About how long were you with this man inside that building?
A. 5 minutes, approximately that long.
Q. How was the lighting inside the building that day?
A. The lighting in our building is a fluorescent lighting
inside the building.
Q. Would you describe it well lit, poorly lit?
A. Well lit.
Q. And how long did you have an opportunity to look at this
man when you were outside, when you were loading the
fertilizer?
A. Loading, it would have taken about 2 minutes to do that.
Q. Did you have an opportunity to look at him then?
A. Yes, I did.
Frederick Schlender - Direct
Q. What time of day was this transaction?
A. This transaction happened in the 12 to 1:30 range, middle
of the day.
Q. And what was the lighting outside like?
A. Sunlight that day.
Q. Describe the man who identified himself as Mike Havens.
A. The individual was a white male, I would say approximately
35, 40 years of age, around 5' 8" to 6-foot tall, slight build.
I'd say 165 to 175 pounds.
Q. Do you recall the color of his hair?
A. Hair color would have been a light brown, short hair but
not a crew cut, but light brown in color.
Q. Did this customer have any facial hair, beard, mustache?
A. No, he did not.
Q. How was -- how was the customer dressed?
A. Customer was dressed in normal dress for coming into our
store; would have had jeans, shirt. I believe that day he had
a coat on.
Q. And did he speak with any accent?
A. No accent.
Q. Was the customer talkative?
A. Not real talkative, but he did answer questions when I
directed them to him.
Q. On October 18, '94, did you have an opportunity to see what
kind of vehicle this customer was driving?
Frederick Schlender - Direct
A. Yes, I did.
Q. What kind of vehicle was it?
A. It was a dark-colored pickup with a light-colored topper.
Q. What do you mean by a topper?
A. Topper is a cab-height extended -- that goes across the top
of the bed clear to the end of the truck.
Q. Do you recall approximately how old the pickup truck was?
A. I believe it was in the late 70's time frame.
Q. Were there any windows in the light-colored topper?
A. Yes, there were, I believe, there was windows in the
topper.
Q. Were they clear?
A. They were clear enough to see through, but they had some
type of sun retardant on them.
Q. On October 18, '94, did you load the pallet, the 1 ton of
ammonium nitrate, into the bed of the pickup truck?
A. No, I did not.
Q. Where did you load the fertilizer?
A. Loaded it into a trailer that the pickup was pulling.
Q. What color was the trailer?
A. Trailer was red.
Q. Do you recall anything else about the trailer?
A. It was a pickup-style trailer, as described a pickup-bed
trailer as a pickup where you cut the -- behind the cab between
the bed, they cut that off and then attach a hitch so the bed
Frederick Schlender - Direct
of the truck can be used for hauling purposes.
Q. Do you recall any other features about the trailer?
A. I believe there was a -- it was -- I would say a 1960's
Ford-type trailer, pickup trailer. And it had white-type
lettering on the end gate.
Q. What was the condition of the trailer?
A. The trailer was in good condition.
Q. When you loaded the fertilizer, where was the customer?
A. The customer was standing to my left, or on the driver's
side of the trailer.
Q. Was he assisting you in any way?
A. When I was loading it, he was just watching.
Q. Did he let down the end gate for you?
A. He did let the end gate down for me; correct.
Q. And that's when you loaded the pallet of fertilizer onto
the trailer?
A. That's correct.
Q. Was the trailer capable of holding that 1 ton of
fertilizer?
A. Yes, it was. Very comfortably.
Q. What was the condition of the trailer?
A. Trailer was in real good condition. There was no rust that
I can remember. And nothing cut off on the back side.
Q. Was there any -- was there anyone else present while you
were loading the fertilizer besides the customer?
Frederick Schlender - Direct
A. At the time I loaded the pallet of ammonium nitrate, a
passenger exited the truck and watched the loading proceedings.
Q. Can you describe for us the passenger?
A. I briefly saw the passenger out of the corner of my eye.
He was in the 6-foot range. Had brownish-colored hair, was a
white male.
Q. Did you see about how tall he was?
A. In the 6-foot range, sir.
Q. One other question before we move on to another topic. Do
you recall what the wheels looked like on the trailer?
A. The trailer -- the wheels were on the outside of the bed
with some type of a fender covering the wheels.
Q. Had you ever seen this customer, this man who identified
himself as Mike Havens, had you ever seen him prior to
October 18, 1994?
A. I had seen him at one occasion before that.
Q. When?
A. That would have been the September 30 of 1994.
Q. And where?
A. That was at the same location as I was loading the pallet
on the October 18 transaction.
Q. And did this man purchase anything else on -- or anything
on September 30?
A. At that time he purchased a ton of ammonium nitrate. On
September 30.
Frederick Schlender - Direct
Q. And what was your role in that transaction?
A. At that time I loaded the pallet, much the same as I
described on the October 18.
Q. Who handled the transaction?
A. That September 30, Jerry Showalter handled the transaction.
Q. At this time, I'd like you to take a look at what's been
introduced in evidence as Government Exhibit 73, please.
A. That's 64.
Q. Do you have 73 in front of you?
There we got it. Thank you. I'm sorry. Do you
recognize that exhibit?
A. Yes, I do.
Q. What is that?
A. That is a ticket from our location which is the
September 30 transaction.
Q. That's the receipt for the loading that you were just
talking about a moment ago?
A. That's correct.
Q. What did Havens -- what did Mike Havens look like on
September 30?
A. Same as I described on the October 18.
Q. Did he have any facial hair at all?
A. None that I recall.
Q. What kind of conversation, if any, did you have with this
customer on September 30?
Frederick Schlender - Direct
A. That September 30, I asked him to let the end gate down so
I could go ahead and load the ammonium nitrate on the trailer.
Q. And what did he say?
A. He proceeded to do that at that time.
Q. What kind of a vehicle was he driving?
A. The vehicle and trailer were the same as the October 18.
Q. What time of the day was this transaction on September 30?
A. That was in the 4 to 4:30 range.
Q. Are you certain that the man you dealt with on September 30
was the same man that you dealt with on October 18?
A. Yes, I am.
Q. Taking a look, then, if you would, at Exhibit 62, which is
in evidence as Government Exhibit 62, what is that in
comparison to the exhibit we just looked at, 73?
A. That is the pink copy or customer copy of the same ticket
we looked at just preceding that.
Q. How do you recognize it to be the customer copy of the
identical receipt?
A. The color pink and also the same ticket number is in the
right bottom corner.
Q. On September 30, when you were loading the fertilizer, was
anyone with this customer?
A. I don't believe there was.
Q. You didn't see anybody?
A. I didn't see anybody.
Frederick Schlender - Direct
Q. Finally, I would like to show you what's in evidence as
Government Exhibit 318. Do you recognize the individual
depicted in that photograph?
A. Yes, I do.
Q. Who do you recognize that to be?
A. Timothy McVeigh.
Q. Was that the customer Mike Havens that you dealt with on
September 30 and October 18?
A. No, it's not.
Q. Are you certain of that?
A. I'm certain of that.
MR. MEARNS: No further questions.
THE COURT: We'll take the recess before
cross-examination.
You may step down, Mr. Schlender.
THE WITNESS: Okay.
THE COURT: Members of the jury, we'll take our usual
20-minute afternoon break during which, of course, please
follow the cautions regularly given to you at all recesses of
keeping open minds, avoiding discussion of any of the testimony
or any of the other things going on in the courtroom or
anything about the case.
You're excused now, 20 minutes.
(Jury out at 3:10 p.m.)
THE COURT: We'll recess.
Frederick Schlender - Direct
(Recess at 3:10 p.m.)
(Reconvened at 3:30 p.m.)
THE COURT: Please be seated.
(Jury in at 3:31 p.m.)
THE COURT: If you'll resume the stand, please,
Mr. Schlender.
Mr. Woods.
MR. WOODS: Thank you, your Honor.
CROSS-EXAMINATION
BY MR. WOODS:
Q. Good afternoon, Mr. Schlender.
A. Hello, there.
Q. My name is Ron Woods. I've been appointed to help Terry
Nichols in this case.
A. Yes.
Q. You and I met in this court back in February --
A. That's correct.
Q. -- of this year; is that correct? Okay.
The FBI came to see you on April 30 of '95 for the
first time, right after the bombing; is that correct?
A. That's correct.
Q. And you were still manager at McPherson at that time?
A. At that time, I was.
Q. In fact, you were manager there up until what, August this
year?
Frederick Schlender - Cross
A. August of '97, right.
Q. And then you went on to your family farm to work on the
farm?
A. That's correct.
Q. Had you been working on that most of the time while you
were also full-time there at McPherson?
A. I've been a part of the farm throughout that time, right.
Q. What caused you to go full-time on the farm?
A. At the year ago this past August, I -- my wife and I lost
our three-and-a-half-year-old son; and at that time, I made a
decision I needed to put more time in at home, had not spent a
lot of time with him. And so I went a year and then decided at
that time that I needed to change.
Q. Okay. And has your farm grown, or still the same size?
A. Farm is still the same size, sir.
Q. How big an area are you farming?
A. Right now, right around 500 acres.
Q. What types of crops?
A. We raise wheat, milo, soybeans, and alfalfa.
Q. Okay. Okay. How long have you had the farm?
A. My dad moved to our community there in 1952, and that's how
long we've farmed there.
Q. And while you were working there at McPherson, you went to
college and got your degree there at McPherson State College?
A. McPherson College.
Frederick Schlender - Cross
Q. And during the summers you worked on the harvest, the wheat
harvest. You would start down in the panhandle of Texas,
Oklahoma, and go up through Wyoming?
A. I did.
Q. Did that for three years?
A. Three years, correct.
Q. And there at the co-op -- did you say that you all were
servicing cars? That was part of --
A. We do have a service area for service of cars there;
correct.
Q. And I assume you serviced a lot of pickups?
A. We have some that we service and cars both.
Q. Is a pickup pretty much the vehicle of choice around
central Kansas there amongst the farmers?
A. With the farmers, yes.
Q. Are you driving a pickup?
A. Yes, I do.
Q. And when the FBI came to see you on April 30, they asked
you about the transaction six-and-a-half months earlier, back
in October of '94. Is that correct?
A. That's correct.
Q. And I assume you've read those memorandum (sic) of
interview before you testified here today?
A. Yes, I have.
Q. And you read the grand jury testimony?
Frederick Schlender - Cross
A. Yes, I have.
Q. And did you read your testimony from the hearing that you
had here in February?
A. Yes, I have.
Q. Okay. Now, when the FBI first talked to you in April 30 of
'95, it had been six-and-a-half months since the transaction.
A. That's correct.
Q. Approximately how many customers had been into your store
since that date?
A. You're asking a lot there; but the number of days that we
were open, we have approximately 75 customers a day.
Q. And is -- do you know how many days that was? Six-and-
a-half months?
A. Right. Let's go with that.
Q. Be close to, say, 15,000 or more?
A. Don't have my calculator, so I'll --
Q. Okay. Okay. A lot of people pay cash when they come in
and buy there at the McPherson store?
A. There is cash and charge customers; correct.
Q. Do you know what percentage of people pay cash?
A. Not exactly.
Q. It's not unusual for people to pay cash, is it?
A. No, it's not.
Q. Now, you described the vehicle to the FBI when they first
interviewed you on April 30. Then they came back a couple of
Frederick Schlender - Cross
days later on May 2, '95. Do you recall that?
A. That's correct.
Q. When you described the vehicle the first time, you said it
was a Dodge; is that correct?
A. Said it possibly a Dodge.
Q. And you said it was a four-wheel-drive?
A. Possibly a four-wheel-drive.
Q. And three-quarter-ton?
A. Possibly three-quarter-ton.
Q. What year Dodge did you estimate it was?
A. Late 70's.
Q. And you described the individual at the first meeting,
didn't you?
A. That's correct.
Q. Said he was 6-foot tall?
A. Said he was approximately 6-foot tall.
Q. Now you're changing that today in front of the jury to
5-foot-8 to 6-foot?
A. I'd say approximately 6-foot tall in my mind.
Q. 5' 8" to 6-foot?
A. Correct.
Q. But you only told the FBI 6 feet when they came to see you
the first time; is that correct?
A. I said approximately 6-foot.
Q. Didn't tell them 5' 8" to 6 feet?
Frederick Schlender - Cross
A. No, I did not.
Q. What other description did you give of the vehicle that you
recall? You've read those memorandum of interview.
A. Yes, I have. It was dark-colored with a light-colored
topper.
Q. And what else?
A. As we described earlier, late 70's style Dodge
three-quarter-ton, four-wheel-drive.
Q. And the trailer: What did you describe the trailer as at
that first meeting?
A. It was a red pickup-bed-style trailer.
Q. Okay. And it was a Ford cutoff trailer?
A. Possibly a Ford.
Q. And it had white lettering?
A. Possibly white lettering on the tailgate.
Q. Now, did you describe a license plate to the FBI at that
time?
A. I had said I believed it had a Marion County, Kansas tag.
Q. And that was on the pickup, not the trailer?
A. On the pickup; correct.
Q. Can you recall seeing a license on the trailer?
A. No, I did not.
Q. Okay. And then on May 2, they came back to ask other
questions about what time you recall the transaction occurring.
Is that correct?
Frederick Schlender - Cross
A. That's correct.
Q. Okay. And asked you further description of the individual
and the vehicle.
A. That's correct.
Q. Okay. And what description of the individual did you give
at that time?
A. At that time, I had given them the description of his hair
color. I don't believe I went any other details.
Q. Still same height, 6-foot?
A. I didn't go into that.
Q. Did you describe how he was dressed?
A. Did not describe that, no.
Q. Did you describe the person that was with him?
A. Described the person with him a second time, yes. It was
approximately a 6-foot passenger at the second transaction.
Q. Now, after that occasion on May 2, you then went down to
the grand jury in Oklahoma City to testify, didn't you?
A. Yes, I did.
Q. Okay. And you met with the prosecutors before you went in
to testify?
A. Yeah, within a month preceding that.
Q. Pardon me?
A. The month preceding the grand jury.
Q. How many times did you meet with the prosecutors in the
month before July 6, '95, before you testified in front of the
Frederick Schlender - Cross
grand jury?
A. One time.
Q. What -- how far in advance was that before the appearance
before the grand jury?
A. It was in the middle of June, as I recall.
Q. Was that in Oklahoma City?
A. They -- at our offices there at McPherson.
Q. Then when you testified at grand jury, you were under oath
and people were taking down your testimony; is that true?
A. That's true.
Q. And you've reviewed that testimony?
A. Yes, I have.
Q. Now, how did you describe the vehicle in front of the grand
jury?
A. Described it as a dark-colored, possibly a dark-blue Dodge
four-wheel-drive, three-quarter-ton pickup.
Q. Well, you left out the word "Dodge" when you went to the
grand jury, didn't you?
A. Excuse me. I did.
Q. Did the prosecutor suggest to you that was a problem
because Mr. Nichols' vehicle was a GMC?
A. No, they did not.
Q. But when you got in front of the grand jury, you only
described it as a blue vehicle?
A. I said dark-colored, I believe.
Frederick Schlender - Cross
Q. Okay. And what did you talk about the license plate -- how
did you describe the license plate to the grand jury?
A. I described it the same way I described it to you earlier.
Kansas -- Marion County tag, and also told them why I believe
it was that way, from the phone call that I received from the
branch east of us telling of a customer that was needing a ton
of ammonium nitrate.
Q. And the grand jury asked you if that transaction was
unusual, didn't they?
A. They did.
Q. And you told them no, it wasn't unusual, didn't you?
A. I told them no, it was not unusual for the practice of
fertilizing, going with the wheat.
Q. And further, the grand jury asked you if you talked to the
person about where he was farming; is that correct?
A. I talked to the customer, yes.
Q. And you told them you had no conversation relating to where
he was farming?
A. I did not recall at that time.
Q. Yes. You recalled that later after meeting with the
prosecutors?
A. I recalled that later going over the events that occurred
many times, in my own mind.
Q. Now, after the grand jury testimony in July, '95, you
started having meetings with this FBI agent, Mr. Hersley?
Frederick Schlender - Cross
A. Yes.
Q. And one of the prosecutors who is no longer with them,
Mr. Mendeloff?
A. I did.
Q. When was the first meeting you had with them?
A. That was in September of 1996.
Q. And where was that meeting?
A. It was held in our law enforcement center across from our
office area.
Q. Now, in the original FBI interview, you suggested to them
that if they gave you a lineup of pickup trucks, you could pick
out the pickup truck.
A. I wanted to be certain of my choice, sir.
Q. And when this agent and the prosecutor met with you, did
they show you a lineup of pickup trucks?
A. No, they did not.
Q. Did they show you a series of photos of one pickup truck?
A. Yes, they did.
Q. And whose pickup truck was that?
A. They did not say whose it was.
Q. And it was all the same pickup; is that correct?
A. Yes, it was.
Q. And you made a choice that, yeah, that looks like the
pickup?
A. I said I believed that was the pickup.
Frederick Schlender - Cross
Q. What were you choosing between, if they were all the same?
A. I was not choosing between anything.
Q. The first meeting was September, '96?
A. That's correct.
Q. And how long did the meeting last?
A. Approximately an hour.
Q. Okay. And did they go over the description of the
individual?
A. Went over the description of the individual, yes.
Q. Was that when you changed from 6-foot to 5-foot-8 -- to
6 feet?
A. No. "5-foot-8 to 6-foot" is approximately 6-foot in my
eyes.
Q. And you told the FBI 6 feet, though, in April and May of
'95?
A. I told them approximately 6-foot.
Q. How -- when was the second meeting you had with this agent
and the prosecutor after September, '96?
A. It would have been in October of '96.
Q. And the first meeting lasted for how long?
A. Approximately an hour.
Q. And where did you meet?
A. I had said we had met at the law enforcement center across
from our office area.
Q. And the second meeting, where did that take place?
Frederick Schlender - Cross
A. The same place.
Q. Did they bring more photos of the same vehicle to you?
A. They did.
Q. Were you able to pick out the vehicle at that time?
A. First time I looked at the photos, I did not agree with the
view. I couldn't see through the back window looking in the
side view of the pickup, so I told them I wasn't certain. But
they brought other photos at the second time.
Q. Now, was this a lineup with different trucks in it, or was
this more photos of Mr. Nichols' truck?
A. More photos of the same truck.
Q. And did they go over again with you the description of the
individual?
A. Didn't talk about the individual, I believe the second
time, sir.
Q. What did you talk about?
A. We talked -- we met about a half hour and talked about the
views of the pickup, also about a -- some pictures of a
trailer.
Q. And you testified here today that it's a Ford pickup
cutoff-bed trailer?
A. I said it was -- I believed it was, sir.
Q. And they were showing you some pictures of Donahue trailer?
A. Yes, they were.
Q. The flatbed trailer?
Frederick Schlender - Cross
A. They weren't a flatbed. They had sides on them.
Q. It's cut. It's low to the ground; right?
A. A little bit lower to the ground than a pickup trailer.
Q. When was the next meeting?
A. Next meeting was in January of this year.
Q. Okay. Where was that meeting?
A. That meeting was held at the same location the preceding
two were.
Q. What subjects did you discuss then?
A. Talked about the same subject we talked about preceding.
Q. Did they show you photos of the pickup?
A. Did not show me photos of the pickup at that time.
Q. Did they show you photos of the Donahue trailers?
A. Did show photos of the Donahue trailers.
Q. What else did they discuss?
A. At this time, I don't know of any other things we
discussed, sir.
Q. Now, back in April of '96, one year after the bombing,
Mr. Hersley and several other agents and some of these
prosecutors came to your store in a Ryder rental truck, didn't
they, in McPherson?
A. They came in a truck, yes.
Q. And you gave them a bunch of bags of not 34-0-0 fertilizer
but some other 50-pound bags; is that correct?
A. That's correct.
Frederick Schlender - Cross
Q. What was it that you gave them?
A. A product called Triple 13 fertilizer.
Q. Did you not have 34-0-0 on hand at that time?
A. No, we did not.
Q. How many bags did you give them?
A. Gave them -- it was a little more than two pallets.
Q. In fact, you gave them 90 bags, didn't you?
A. Right. Uh-huh.
Q. Did they explain to you why they wanted 90 rather than 80?
A. No, they did not.
Q. Where did they put the bags?
A. Put them in the back of a truck, yes.
Q. Did you notice what kind of truck it was?
A. I don't recall, sir.
Q. Didn't notice the big "Ryder" across the side of it?
A. I don't remember if it was a Ryder truck or not.
Q. Do you remember the color of it?
A. No, I do not.
Q. Were you real busy that day?
A. I remember, sir, I brought the product to the back of our
building where our service area is and somebody else loaded the
truck.
Q. Well, they came to you to get the product, though, didn't
they?
A. They came and asked, yes.
Frederick Schlender - Cross
Q. And you -- where did you place the product?
A. Put it in the back of our area as I proceeded to tell you,
in our service area.
Q. Okay. That's where people load up?
A. No. That's just where we were -- were able to load it
easy.
Q. Okay. Now, did you go with them when they took the
90 pounds -- 90 bags and leave?
A. No, I did not go with them.
Q. Okay.
A. As I described earlier, I wasn't there when it was loaded.
Q. Okay. The sacks that are back there -- you showed the jury
photographs of the area where you keep these sacks when it's
outside the sealed -- sealed pack. Is that correct? Do you
recall those photos?
A. Yes. And -- you mean 67.
Q. Exhibit No. 67.
MR. WOODS: May we have Government's Exhibit 67
exhibited?
Thanks.
Is it on the computer that you can turn --
THE COURTROOM DEPUTY: It's in the computer. 67.
MR. WOODS: It's in evidence.
THE COURT: Yes.
MR. WOODS: If not, I can use this exhibit up here,
Frederick Schlender - Cross
your Honor.
Here we go.
Thank you, sir.
BY MR. WOODS:
Q. Now, can you describe for the jury what that is, sir.
A. Yes. That's our storage area of the warehouse.
Q. And these are pallets of various types of fertilizer?
A. Yes, they are, with the exceptance (sic) of an ice melt
that is in the right hand closest.
Q. What's an ice melt?
A. It melts -- just as it says, it melts ice.
Q. Does that area back there get dusty from all these bags?
A. It does have some dust, yes.
Q. How often do you have to sweep out back there?
A. The warehouse area, we usually sweep out once a season,
spring and fall.
Q. Now, these sacks are not absolutely impermeable, are they?
A. You want to ask that in -- you mean do they get broken? Is
that what you're saying?
Q. Do things leak out of them?
A. Yes, they do.
Q. And you have various kinds of fertilizer lying around on
the floor, I take it, that has to be swept up occasionally?
A. Yes, they do.
MR. WOODS: Okay. Thank you. We can turn that off.
Frederick Schlender - Cross
BY MR. WOODS:
Q. Now, you met with the FBI in January, '97, with the
prosecutor; correct?
A. That is correct.
Q. Went over your testimony. And then you testified in
February, '97, in this court?
A. That's correct.
Q. And you've reviewed that testimony?
A. Yes, I have.
Q. And how many times have you met with them since that time?
Mr. Mearns has started meeting you with since Mr. Mendeloff is
gone.
A. Uh-huh.
Q. How many times have you met with them since February, '97?
A. Met with them four times.
Q. And what did you discuss the first time and when was the
first time?
A. First time was in July, this past year.
Q. And what did you discuss?
A. The -- as we've talked before, the testimony we had from
this hearing back in February.
Q. Okay. Now, in your testimony today, you -- to the jury,
you didn't relate that there was a Kansas tag on the car.
A. No, I did not.
Q. Are you changing that?
Frederick Schlender - Cross
A. No. I will state it as I did in the pretrial hearing there
and as I did in Oklahoma. The reason for the Kansas tag was
the call that we received from our location east of us saying
that a customer was interested in a ton of ammonium nitrate.
Q. And you went on to describe the sticker that you saw on the
Kansas plate to the grand jury?
A. Described the sticker that would normally be on a Kansas
tag.
Q. Now, did the Government tell you that that was a problem
because Mr. Nichols still had his Michigan tags on his truck at
that time?
A. No, they did not.
Q. All right. Did the Government tell you that it was a
problem describing him as 6-foot tall because he's not that
tall?
A. No, they did not.
Q. You have a lot of transactions in that office where people
pay cash for ammonium nitrate, don't they?
A. Yes, they do.
Q. And people don't take time to fill out the tax exemption
for those cash purchases, do they?
A. No, because they're not eligible for tax exemption for lawn
and garden.
Q. Okay. And the tax is only 6 percent anyway, isn't it?
A. Yes, it is.
Frederick Schlender - Cross
Q. And you're saying it's only for farmers that sign the tax
exemption anyway; is that correct?
A. That and resale.
Q. Okay. If you swear that you're only holding it for resale,
then you don't pay the ultimate consumer tax; right?
A. (Witness nods head.)
Q. Okay. But at any rate, most people who go in there and buy
ammonium nitrate fertilizer and pay cash don't sign any tax
exemption?
A. No, they don't.
Q. Okay. Now, you compiled for the FBI an inventory of your
ammonium nitrate on hand in September and October, didn't you?
A. I did.
Q. Do you remember Mr. West, Agent West, William West, that
you worked with on that?
A. I remember him.
Q. Did you see him here yesterday? Were you here yesterday?
A. I did not see him here yesterday.
Q. How long have you been here this week?
A. Came in Tuesday.
Q. Okay. And you didn't see him in the witness room or
anywhere yesterday?
A. No.
Q. You know what he looks like; right?
A. Yes, I do.
Frederick Schlender - Cross
Q. Receding hairline, glasses?
A. Uh-huh.
Q. Now, you're required -- when you were at McPherson and when
you were at Mid-Kansas Co-op, you're required to have -- keep
an inventory every month of the product on hand, aren't you?
A. Every two months we had an inventory.
Q. And had you testified before that it was every month?
A. I do not believe I have.
Q. How did you keep that inventory? What type of inventory
sheet did you utilize?
A. The -- we took those from the two-month cutoff inventory
sheets that we kept.
Q. Okay. And do you recall how much inventory you started
with in September of '94?
A. September it was in the range of 2.2-ton, if I remember
right.
Q. And do you recall what your October 1 balance was, or --
A. There was not an October 1.
Q. Pardon me?
A. There was not an October 1.
Q. You didn't do an October 1 accounting?
A. Every two months.
Q. Okay. Do you remember that sheet you did with Mr. West?
Have you reviewed that? That's one of your 302's showing day
by day the inventory on hand?
Frederick Schlender - Cross
A. No, I did not do that with him, no.
Q. Pardon me?
A. I do not do that with Mr. West.
Q. Do you remember reviewing it here recently?
A. No.
MR. WOODS: Your Honor, just for refreshment --
refreshment of memory.
THE COURT: You may approach and show him whatever you
want.
MR. WOODS: Thank you.
BY MR. WOODS:
Q. Mr. Schlender, if you would just take a look at that, read
it to yourself, and look at the name at the bottom as to who
wrote it up.
A. William West.
THE COURT: Well, I think he just wants you to look at
it and then he'll ask you some questions.
THE WITNESS: Okay.
THE COURT: You've read it now.
THE WITNESS: I've looked at it.
BY MR. WOODS:
Q. Thank you, sir.
Does that refresh your memory as to compiling an
inventory on a day-to-day basis through September and October?
A. We had a receipt card. We did not keep track of the
Frederick Schlender - Cross
disbursement.
Q. Do you recall at the first of September starting off with
88 bags?
A. Yes.
Q. And you sold a number of bags down, until October 1, you
only had six bags on hand, according to this tally?
Did you and Mr. West compile this? Does that refresh
your memory at all?
A. No, I did not tally with Mr. West. He did that on his own.
Q. Okay. So this is an FBI-generated document that we should
assume is accurate?
MR. MEARNS: Objection.
THE COURT: Sustained. I mean as to the assuming that
it's accurate.
MR. WOODS: Yes, your Honor.
BY MR. WOODS:
Q. Did you provide the figures to him to compile this, sir?
A. If I remember right, I think he did that out of our main
office in Moundridge.
Q. Okay. But isn't this an interview with you, the way it's
reflected?
A. The way it's reflected, he got the information that he
could from me; and then he proceeded to do the ticket
documentation from another location.
Q. And if you look on the second page, where it says,
Frederick Schlender - Cross
"Schlender reviewed the file of original white" --
MR. MEARNS: Objection.
THE COURT: Just a moment.
MR. MEARNS: Objection to reading from the document,
your Honor.
MR. WOODS: Let me just refer him to the paragraph.
THE COURT: Yes.
BY MR. WOODS:
Q. Have you read the last paragraph that's on that second page
right above the chart?
A. Yes, I do; but I did not read the -- because I could not
review the white copies. They are not at our location.
Q. But Mr. West represents that you did?
A. He wrote it that way.
Q. As of September 30, '94, on this chart, what did the
records of McPherson reflect that your inventory was in number
of bags?
A. At the end of the 30th was eight bags.
Q. Okay. And then the first half of October, you sold a
number of bags before you got that shipment of 200 bags in,
didn't you?
A. Yes, we did.
Q. In fact, it shows that you kept having a negative balance.
You even got up to a negative balance of 31 bags in October?
MR. MEARNS: Objection, your Honor, to what the report
Frederick Schlender - Cross
says, as opposed to the witness' recollection.
THE COURT: I think we have to separate out in your
question what he remembers and what this report says.
MR. WOODS: Yes, your Honor.
BY MR. WOODS:
Q. Do you recall sales during the month of October as
reflected in this chart?
A. The sales in October are reflected on this chart, yes.
May I also add that we do not keep track of transfers
within the company; that the inbound was only that that was
brought in on a truckload.
Q. So if you have records reflecting that you have a negative
balance in bags of fertilizer in your co-op, they're not
accurate?
A. The only thing we keep track of on that inbound that I gave
Mr. West is the inbound that came in on a semi, not what was
intertransfers within the company. We don't have to keep track
of that.
Q. So do you know for sure, then, that your records are
accurate as to the shipment of fertilizer out of there?
A. As far as the shipment out is taken from the counter
tickets. Yes, they're accurate.
Q. But your inventory records won't reflect it; is that
correct?
A. The actual inventory records that we dealt with on the
Frederick Schlender - Cross
September and -- beginning of September and end of October are
accurate.
Q. But the records on a day-to-day basis are not?
A. No, they aren't.
Q. Because you don't keep count of what goes out and what
comes in?
A. No, we did not keep track of the disbursement.
MR. WOODS: Thank you, your Honor. No further
questions.
THE COURT: All right. You have some redirect?
MR. MEARNS: Just very briefly, your Honor.
May I have just a moment to speak to Mr. Mackey?
THE COURT: Yes.
REDIRECT EXAMINATION
BY MR. MEARNS:
Q. I'd like to go back to some of the questions Mr. Woods
asked you about photographs of pickup trucks that were shown to
you.
A. That's correct.
Q. Tell us what you said when the first photographs of the
pickup truck -- of a pickup truck were shown to you.
A. First time I was shown that, I didn't agree with the one
photograph where I couldn't see through the back. It looked
like it had a real colored-type glass, and I did not remember
that being that way on the vehicle that picked up the ammonium
Frederick Schlender - Redirect
nitrate.
Q. What about the photographs of the trailers that were shown
to you?
A. Also, they focused in on one trailer. I did not agree with
that when they first showed me the trailers, also.
Q. With respect to your meetings with agents and prosecutors,
did anyone from law enforcement, an agent or a prosecutor, ever
tell you that the photograph of the pickup truck that you were
looking at was Mr. Nichols' pickup truck?
A. No, they did not.
Q. During any of the meetings with agents and prosecutors, did
anyone ever tell you what or suggest to you what you should
say?
A. No, they did not.
Q. Did anyone ever tell you -- any agent or prosecutor ever
tell you there were any problems with your recollection or
testimony?
A. No, they did not.
Q. With respect to the tax-exemption certificate that
Mr. Woods asked you about --
A. That's correct.
Q. -- what did the customer, Mr. Havens, say on October 18
that he intended to do with the fertilizer?
A. He intended to plant -- apply this when he was planting
wheat.
Frederick Schlender - Redirect
Q. What is the purpose, or what qualifies for a tax exemption,
a sales-tax exemption?
A. It has to be an agricultural input, so that would qualify
for it.
Q. That is what this customer said would qualify for the tax
exemption?
A. Yes, it would.
Q. Finally with respect to the inventory records that you were
asked about, Mr. Woods asked you about a negative balance. Do
you recall that?
A. Yes, he did.
Q. If somebody were to go and compute or try to compute what
kind of inventory you had on a daily basis by looking at the
Moundridge records --
A. Uh-huh.
Q. You understand what I'm asking you?
A. Right.
Q. If someone were to do that, would that accurately reflect
the daily inventory at your branch, McPherson branch?
A. The Moundridge record, if it's the whole company's, no, it
would not reflect our inventory. No.
Q. Why not?
A. Because they would have all the other sales records of the
other branches of our company.
Q. And by simply reviewing your sales receipts, it wouldn't
Frederick Schlender - Redirect
reflect interbranch transfers; that is, transfers of inventory
from one branch to another?
A. Interbranch transfers are not documented, no.
Q. With respect to your recollection about the pickup truck
and about this customer who identified himself as Mike Havens,
are there certain aspects of those transactions that you're
certain about?
A. Yes, I am. I'm certain about the description, as I said,
the individual, being the 5' 8" to 6-foot.
Q. And are you certain of whether or not that individual was
Mr. McVeigh, the person depicted in Government's Exhibit 318?
A. It was not Mr. McVeigh.
Q. Are you certain about or more certain about aspects of the
pickup truck that you described?
A. The most certain I am on the pickup I described was the
dark-colored and the light-colored topper.
Q. And what about the trailer?
A. The trailer -- the pickup-style trailer and red in color.
Q. What about any other details of the trailer?
A. The white lettering on the end gate.
MR. MEARNS: No further questions, your Honor.
MR. WOODS: Just a couple, your Honor.
THE COURT: All right.
RECROSS-EXAMINATION
BY MR. WOODS:
Frederick Schlender - Recross
Q. Mr. Schlender, if you would, go back to that document I
handed you that Mr. West prepared. And on page 4, last
paragraph, he's reflecting conversation he had with you.
A. Yes.
Q. Do you recall that conversation?
A. Yes, I did tell him that we do not keep track of
intercompany (sic) transfers.
Q. And in fact, he was asking you why this big disparity in
the records of what's on hand and what -- physical counting and
what the records show, wasn't he?
A. Yes, he was.
Q. And you explained that sometimes you have intertransfers,
interoffice transfers?
A. Intercompany transfers.
Q. But then you told him that you could not specifically
remember any such shipment?
A. I had the bill of lading from that shipment of that 200
bags.
Q. Well, the 200 bags, we understand. We're talking about the
69-bag disparity on the daily inventory.
A. No, I could not exactly detail when that date those bags
would have come in on the intercompany transfer.
Q. Right. You told him you could not specifically remember
such a shipment?
A. No, not specifically, no.
Frederick Schlender - Recross
Q. Now, when you described the individual to the FBI and to
the grand jury and to the Court, did you describe the
individual who made the purchase as having glasses?
A. No, I did not.
MR. WOODS: Thank you very much, sir.
MR. MEARNS: Two questions, your Honor.
THE COURT: All right.
REDIRECT EXAMINATION
BY MR. MEARNS:
Q. Do you recall whether the individual who identified himself
as Mike Havens wore glasses?
A. No, I can't recall seeing glasses.
Q. With respect to the two transactions on September 30 and
October 18, are you certain that you loaded 2 tons of ammonium
nitrate, 1 ton of ammonium nitrate on each of those occasions?
A. Yes, I am.
Q. Any doubt about that?
A. No doubt about that.
THE COURT: Are you excusing the witness?
MR. MEARNS: I'm sorry. Yes, your Honor.
MR. WOODS: We have agreed to excuse him, your Honor.
THE COURT: All right. You may step down. You're now
excused.
Members of the jury, I might mention that this witness
when asked also talked about previous testimony in February at
a hearing. He's referring to a time when there was a hearing
before the Court on motions. There are a number of -- in cases
normally -- a number of motions that are heard by the court
before the trial ever begins on various legal matters, and
sometimes witnesses appear there.
So, you know, you shouldn't speculate about what that
testimony was beyond -- or the purpose of it beyond what the
witness testified about here. So don't think that there has
been a previous trial or something like that. It referred to
motions on legal issues that the Court resolved.
MR. WOODS: Thank you, your Honor.
THE COURT: Next witness.
MR. MACKEY: We would next call Jerry Showalter.
THE COURTROOM DEPUTY: Raise your right hand, please.
(Jerry Showalter affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: Jerry Showalter, S-H-O-W-A-L-T-E-R.
THE COURTROOM DEPUTY: Thank you.
DIRECT EXAMINATION
BY MR. MEARNS:
Q. Good afternoon, Mr. Showalter. Where do you live, sir?
A. McPherson, Kansas.
Q. How long have you lived in McPherson?
Jerry Showalter - Direct
A. 17 1/2 years.
Q. How long have you lived in Kansas?
A. All my life.
Q. Are you married?
A. Yes.
Q. Do you have any children?
A. I have two.
Q. Are they boys, or girls?
A. Both girls.
Q. How old are your girls?
A. 22 and 18.
Q. What kind of education have you received?
A. I've got a bachelor of science degree from Kansas State
University.
Q. When did you graduate from Kansas State?
A. 1974.
Q. And what was your major in college?
A. Biology.
Q. Where do you work?
A. Mid-Kansas Co-op.
Q. How long have you worked at the co-op?
A. About 18 1/2 years.
Q. What is your position there?
A. Sales and service.
Q. What is the Mid-Kansas Co-op?
Jerry Showalter - Direct
A. It's a farmers' owned organization that supplies fertilizer
and agricultural products to farmers.
Q. And are there more than one branch of the co-op?
A. Yes.
Q. What branch do you work at?
A. I work at McPherson.
Q. Describe your duties and responsibilities.
A. I take care of customers as they come through the door,
writing sales tickets, carrying out feed, fix tires, sell
fertilizer, load fertilizer.
Q. And what are your normal working hours?
A. I go to work at 7:30 and get off at 5:30.
Q. How many days a week?
A. Five days and a half day Saturday.
Q. What are your hours on Saturday?
A. 7:30 to noon.
Q. In the fall of 1994, how many employees were working at the
McPherson branch of the co-op?
A. There were four.
Q. About how many customers, again in the fall of 1994 --
about how many customers on a typical day came into the
McPherson store?
A. On a slower day, there would be 75. On a busy day, around
150.
Q. And are there periods during the day when the McPherson
Jerry Showalter - Direct
branch is more busy than other times?
A. Yes.
Q. When is it more busy?
A. Usually the first couple hours of the morning and the last
couple hours of the day.
Q. What I want to do is direct your attention to a specific
transaction in the fall of 1994. Okay? Were you working in
the co-op at the McPherson branch of the co-op in September of
1994?
A. Yes, I was.
Q. Do you recall ever selling 2,000 pounds or 1 ton of
ammonium nitrate fertilizer to a man who identified himself as
Mike Havens?
A. Yes, I do.
Q. What do you recall about that transaction?
A. That the man came through and had requested the day before
by phone call that if we had ammonium nitrate in that quantity;
and we told him yes, and he came through the door --
Q. Let me interrupt you for just a second. You're saying that
something happened the day before the actual transaction?
A. Yes.
Q. What date did the transaction take place?
A. The day after we -- what do you mean?
Q. What day did you actually sell 2,000 pounds of ammonium
nitrate in September? What was the date?
Jerry Showalter - Direct
A. It was at the 30th, I believe.
Q. So what happened the day before, September 29?
A. We received a phone call from our location in Galva,
Kansas.
Q. Who called you?
A. Stuart Vogts.
Q. Who is Stuart Vogts?
A. He's the location manager of the Galva branch.
Q. Where is Galva in relation to McPherson?
A. Approximately 7 miles east.
Q. If I could ask you to look at what is in evidence as
Government's Exhibit 2045.
Actually, you can look on your computer screen,
Mr. Showalter. Got it there?
A. Got it.
Q. Do you see McPherson on the map?
A. Yes, I do.
Q. Could you circle McPherson for us?
A. Let me find out where I'm at.
Q. You actually have to reach underneath the screen with your
pen.
There you go.
A. Right there.
Q. Okay. Now, you've put a mark there just to the east --
A. That's actually where Galva is. I'm sorry.
Jerry Showalter - Direct
Q. And it's along that highway?
A. Yes, it is.
Q. That's that highway between Marion and McPherson?
A. That's correct.
Q. And that's where Mr. Vogts is the branch manager?
A. That's correct.
Q. What did Mr. Vogts ask you?
A. He asked if we had 2-ton or 4,000 pounds of ammonium
nitrate on hand.
Q. What did you do in response to that question?
A. I told him I would have to check our inventory and if he'd
hold on a minute, I could do that and be right back with him.
Q. What did you do?
A. I went out the door and over to the warehouse to make sure
what we had on hand.
Q. What did you see when you got inside the warehouse?
A. We had a full pallet and a part of a pallet of ammonium
nitrate.
Q. How much is a full pallet?
A. A full pallet is 40 bags.
Q. And that's 2,000 pounds?
A. 2,000 pounds.
Q. What did you do next?
A. I told Mr. Vogts what we had it available and on hand.
Q. Did he say anything in response?
Jerry Showalter - Direct
A. He said that there would be a customer over to pick up
1 ton of ammonium nitrate.
Q. And did that customer then come in September 29?
A. No. He came in the next day.
Q. And tell us about that.
A. He walked through the door and he informed me that he had
been in Galva the day before and had -- they had made a phone
call and he was there to pick up that ammonium nitrate.
Q. What time of the day did this customer come in on
September 30?
A. 3:30, 4:00, somewhere in there.
Q. What happened next?
A. I asked him would this be cash or charge, started making
out a ticket, and asked him about whether he wanted to pay
sales tax on it or how he wanted to handle that, because he was
not a regular customer.
Q. You recognized -- or you didn't recognize this person as a
regular customer?
A. Right.
Q. Are many of the customers that come in on a typical day
people that you recognize?
A. I recognize most of the people who do come in.
Q. About how -- what percentage, if you could give us a
percentage, of the customers that you typically recognize?
A. Probably about 85, 90 percent of them.
Jerry