The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Friday, November 7, 1997 (morning)
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 67)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 8:45 a.m., on the 7th 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, 210 West Park Avenue, Suite 400, Oklahoma
City, Oklahoma, 73102, appearing for the plaintiff.
LARRY MACKEY, BETH WILKINSON, GEOFFREY MEARNS, JAMIE
ORENSTEIN, and AITAN GOELMAN, Special Attorneys to the U.S.
Attorney General, 1961 Stout Street, Suite 1200, Denver,
Colorado, 80294, appearing for the plaintiff.
MICHAEL TIGAR, RONALD WOODS, and JANE TIGAR, Attorneys
at Law, 1120 Lincoln Street, Suite 1308, Denver, Colorado,
80203, appearing for Defendant Nichols.
* * * * *
PROCEEDINGS
(In open court at 8:45 a.m.)
THE COURT: Be seated, please.
Good morning.
ALL: Good morning, your Honor.
THE COURT: Ready to proceed?
MR. MACKEY: Yes, your Honor.
THE COURT: Okay.
(Jury in at 8:45 a.m.)
THE COURT: Members of the jury, good morning.
JURY: Good morning.
THE COURT: You recall we were hearing testimony from
FBI Agent Jasnowski when we recessed. We'll resume her
testimony now.
Please resume the stand under your oath.
(Mary Jasnowski was recalled to the stand.)
THE COURT: Mr. Mearns, you may proceed.
MR. MEARNS: Thank you, your Honor.
DIRECT EXAMINATION CONTINUED
BY MR. MEARNS:
Q. Agent Jasnowski, when we recessed yesterday afternoon, you
had just finished showing us the diagram of the house and the
garage/storage-room structure in the back; right?
A. That's correct.
Q. You also said that before you went in to diagram the
interior of the house, you directed someone to take photographs
of the exterior of the property; is that correct?
A. Yes, that's correct.
Q. And were you present when those photographs were being
taken?
A. Yes, I was.
Q. What I'd like you to do is look into your folder for
Government Exhibit 1778.
A. Yes.
Q. Do you recognize that?
A. Yes, I do.
Q. What are those?
A. These are the photographs taken that evening of the
Mary Jasnowski - Direct
exterior of the premises at 109 South 2nd Street.
Q. And how many photographs are in that group exhibit?
A. There are 12.
Q. And do those photographs fairly and accurately depict what
the outside of the house and the garage looked like on
April 22?
A. Yes, they do.
MR. MEARNS: Your Honor, we would offer the group
exhibit, Government Exhibit 1778.
MR. TIGAR: Your Honor, we have no objection. I don't
want to interfere with counsel's thing. He's got a lot of
photographs that were taken. I've looked at the witness list.
We consent to all of them. If he just wants to read the
numbers, he can publish them.
THE COURT: All right. Let's do that. That will save
time. This first group is 1778; is that right?
MR. MEARNS: Yes.
THE COURT: Consisting of 12 photographs.
MR. MEARNS: That's correct.
THE COURT: All right. They're received.
MR. MEARNS: We would offer 1767, which is a group
exhibit of nine photographs.
MR. TIGAR: No objection.
THE COURT: Those are received.
MR. MEARNS: 1770, which is a group exhibit of six
Mary Jasnowski - Direct
photographs.
MR. TIGAR: No objection.
THE COURT: 1770, that's received.
MR. MEARNS: 1771, which is a group exhibit of eight
photographs.
MR. TIGAR: No objection.
THE COURT: Received.
MR. TIGAR: May I remain seated --
THE COURT: Yes, you may.
MR. TIGAR: -- while I'm saying this so I may look at
the list?
MR. MEARNS: 1772, which is a group exhibit of 13
photographs.
MR. TIGAR: No objection.
THE COURT: Received.
MR. MEARNS: 1769, which is a group exhibit of ten
photographs.
MR. TIGAR: No objection.
THE COURT: Received.
MR. MEARNS: 1773, which is a group exhibit of 15
photographs.
MR. TIGAR: No objection.
THE COURT: They are received.
MR. MEARNS: 1774, which is a group exhibit consisting
of . . .
Mary Jasnowski - Direct
MR. TIGAR: 11.
MR. MEARNS: 11 photographs, thank you.
MR. TIGAR: No objection.
THE COURT: All right. Received.
MR. MEARNS: 1775, which is a group exhibit consisting
of 13 photographs.
MR. TIGAR: No objection.
THE COURT: They are received.
MR. MEARNS: 1776, which is a group exhibit of six
photographs.
MR. TIGAR: No objection.
THE COURT: They're received.
MR. MEARNS: 1777, which is a group exhibit of seven
photographs.
MR. TIGAR: No objection.
THE COURT: They are received. All right.
MR. MEARNS: With that, your Honor, what we would like
to do is just publish some of the photographs from each of
those groups.
THE COURT: All right.
BY MR. MEARNS:
Q. Beginning with 1778, Photograph No. 1.
A. Yes.
Q. Describe for us what we see in that photograph, please.
A. This is a view of the front entrance of the residence at
Mary Jasnowski - Direct
109 South 2nd Street. There's the front.
Q. And in the foreground, we see a yellow tape or a ribbon.
What is that?
A. It's a police barrier to keep people who are not authorized
to be on the premises away.
Q. And was that barrier or tape there when you arrived on
April 22?
A. Yes, it was.
Q. Photograph No. 2, please. What is this, Agent Jasnowski?
A. This is the side view from the driveway. This is the door
that we entered through.
Q. That is the door on the left with the awning over the top?
A. Yes.
Q. You did not go in and out of the front door off of the
porch that evening?
A. We did, but our main entryway was through the door off of
the driveway.
Q. Photograph No. 4, please. What is this?
A. I'm sorry. This is an entrance to the garage. This is the
storage room here, entrance.
Q. And which direction are we looking at it, coming from the
house, or coming from behind the property?
A. This is coming from the house, heading towards the west.
Q. And that is a door that enters into the storage room?
A. Yes. Of the garage.
Mary Jasnowski - Direct
Q. Photograph No. 6, please. What is that?
A. This is the rear of the garage. You can see the auto
garage door. This is looking at it from the alleyway.
Q. And is that the way in which you could get a car or a
pickup truck, a vehicle into the garage is from the rear?
A. That's correct.
Q. Photograph No. 8, please. What is that?
A. These are some garbage cans that were located to the west
of the garage near the alleyway.
Q. And when you say "the west," that's towards the back of the
house?
A. That's correct.
Q. Behind the garage?
A. Yes.
Q. Photograph No. 12, please. What is --
A. These are -- I'm sorry.
Q. What is that?
A. These are the front steps, the front door is right here.
Q. And when you arrived on April 22, did you see anything on
those steps?
A. Yes, there were small, white prills on those steps.
Q. When you entered the house, what was the first room that
you photographed and sketched from the interior?
A. The first room that we photographed was the living room,
from the interior.
Mary Jasnowski - Direct
MR. MEARNS: And I'd like to proceed with 1767,
Photograph No. 1, please.
BY MR. MEARNS:
Q. What is that?
A. This is the living room looking towards the front door.
Q. That's the front door that's off of the porch?
A. Right.
Q. Photograph No. 2, please.
A. This is standing towards the area of the front door looking
towards the area where the driveway would be.
Q. So the front door would be -- the front of the house would
be to your left?
A. Yes, the front of the house is here.
Q. And Photograph No. 5, please. What is that?
A. This is a dining area within the living room, looking back
towards the direction of the kitchen, towards the west of the
house.
Q. Was that the condition of that area of the house when you
entered on April 22?
A. Yes, it is.
Q. What was the next room that was sketched and photographed?
A. We did the master bedroom, or Bedroom 1 as we described it.
MR. MEARNS: And if we could then have Exhibit 1770,
Photograph No. 1, please.
BY MR. MEARNS:
Mary Jasnowski - Direct
Q. What is that?
A. This is looking in from the living room into the master
bedroom.
Q. What is to your right there?
A. To the right would be the front door.
Q. So now your back is towards the driveway?
A. Right.
Q. And Photograph No. 2, please. What is that?
A. Again this is from the doorway -- from the living room
looking into the master bedroom. It's a dresser there.
Q. What was the next room that was photographed?
A. The next room that was photographed was the second bedroom,
the guest bedroom.
MR. MEARNS: If we could have Exhibit 1771, Photograph
No. 1, please.
BY MR. MEARNS:
Q. What is that?
A. This is again looking from the living room into the second
bedroom.
Q. Where is the -- reorient us, if you can, where the second
bedroom in relation to the first bedroom?
A. It's just immediately to the west to the first bedroom.
Adjacent, next to it.
Q. And that's towards the back of the house?
A. Yes.
Mary Jasnowski - Direct
Q. And Photograph No. 2, please.
A. This is the bed in the second bedroom.
Q. And was that the condition of the room when you entered on
April 22?
A. Yes.
Q. What was the next room that you photographed?
A. There was laundry room leading off of the second bedroom.
MR. MEARNS: 1772, please. Photograph No. 1.
THE WITNESS: Yes.
BY MR. MEARNS:
Q. What do we see in that photograph?
A. This is looking into the laundry-room area from the second
bedroom.
Q. Photograph No. 2, please. What is that?
A. This is a curio cabinet that was located in the laundry
room, looking into -- towards the bathroom.
Q. And is this laundry room -- is now towards the back of the
house behind the second bedroom?
A. Yes, it is.
Q. And if you continue back, that's when you get into the
bathroom on the first floor?
A. That is correct.
Q. What was the next room that was photographed?
A. The bathroom.
Q. And then did you proceed to photograph the kitchen?
Mary Jasnowski - Direct
A. Yes, I did.
MR. MEARNS: If I could have 1769, Photograph No. 1,
please.
BY MR. MEARNS:
Q. What is that?
A. This is the kitchen looking from the laundry room.
Q. Photograph No. 2, please.
A. This is a cabinet area within the kitchen. It's towards
the rear door. Looking at it from the area of, say, the
refrigerator.
Q. Photograph No. 6, please. What is that?
A. This is the sink. It's against the wall. Bathroom is
directly behind the sink area.
Q. And Photograph No. 8, please.
A. Again, this is the kitchen. The refrigerator is to the
left, and to the left of there is the door leading out to the
storage area and to the driveway.
Q. Were those cabinets open when you arrived on April -- when
you entered the house on April 22?
A. No, they were not.
Q. Who opened those cabinets for this photograph?
A. The photographer.
Q. There's food on the counter there, on the stove and on the
counter. Was that food there when you entered on April 22?
A. Yes, it was.
Mary Jasnowski - Direct
Q. What was the next room that you photographed?
A. We went into the storage or pantry closet off of the
kitchen, leading towards the driveway.
MR. MEARNS: If I could have 1773, Photograph No. 1,
please.
BY MR. MEARNS:
Q. What is that?
A. This is the pantry, storage area. There's shelving and
there you can see the stairway leading down to the driveway.
Q. That is just where you put that little X there?
A. Yes.
Q. Is this the first room that you enter when you come in off
that second door off of the driveway?
A. Yes.
Q. Photograph No. 8, please. What is that?
A. These are some ammunition boxes, ammo boxes that we were --
that are in that storage room. The kitchen is back this way.
Q. And Photograph No. 12, please. What is that?
A. These are some boxes with papers and other things that were
located within that storage room.
Q. And then you went down into the basement storage area?
A. No, then we went into the furnace/basement area.
MR. MEARNS: If we could have Exhibit 1775, please.
THE WITNESS: Right.
BY MR. MEARNS:
Mary Jasnowski - Direct
Q. What is --
A. This is the door off of the laundry room leading down into
the furnace area.
Q. And I can't see the exhibit. Is that Photograph No. 2?
A. That's No. 1.
Q. Could we have Photograph No. 2, please. What is that?
A. These are the stairs leading down into the furnace area.
Q. And then did you proceed into the basement storage area to
photograph?
A. Yes, we did.
MR. MEARNS: Could I have 1774, Photo No. 1, please.
THE WITNESS: These are the stairs leading down into
the basement storage.
BY MR. MEARNS:
Q. What was located in that basement storage area?
A. There were all kinds of things that were in the basement
storage area.
Q. What happened after this initial entry phase; that is,
photographing and sketching? What did you do after this phase
of the search was complete?
A. Well, once the chemical analyses were completed, we decided
to have the search team enter; and I made the assignments as to
who would start at what area, and the search began.
Q. And approximately what time did that search begin?
A. Approximately 7:00 p.m., I called everyone in.
Mary Jasnowski - Direct
Q. And about how many agents were in the house actually
searching the house?
A. Approximately 15.
Q. What did you do during that phase of the search?
A. During that phase, I basically made the assignments,
assisted people in setting up, made sure that they had adequate
supplies to use, answered any questions that arose.
Q. At any time during the execution of the search warrant, did
you actually take custody of evidence?
A. Yes, I did.
Q. Explain that process, please.
A. When we seize evidence, the seizing agent will take that
item and package it; and in packaging it, they will list the
file number, the date, the item number. There's a system that
we set up, and they would put their initials on it. And then I
would accept custody from them, as the custodian of the
evidence, and I would cross initial that evidence.
Q. By "cross initial," you mean you'd put your initials on it
as well?
A. Yes.
Q. What happened with the evidence as it began to accumulate
during the search?
A. Well, when it got to be a hindrance to our search, we would
take it and -- take it outside and put it in an Army vehicle
that had been provided to us for transport of the evidence.
Mary Jasnowski - Direct
Q. Was that vehicle being guarded by anybody?
A. Yes, there were FBI personnel outside plus there were --
actually, the people who were driving it were two Army -- Army
personnel who were also there.
Q. Approximately how long did it take to complete the search
of Mr. Nichols' house?
A. The house itself, I believe it was finished approximately
1 a.m.
Q. At some point during the search of the house, did you
participate in photographing and sketching of the structures,
the garage, and the storage in the back?
A. Yes.
Q. About when did you do that?
A. I would say between 8 and 9.
Q. Did anyone assist you in that?
A. Well, the photographer was Eugene -- or Andrew Grindstaff,
and he was assisted by Sonya Hernandez, who served as his log
keeper, and I made the sketch while we did that.
MR. MEARNS: And, your Honor, we would offer, pursuant
to the same procedure if it's acceptable to counsel, the
photographs of those two structures, which there's a group
exhibit of 1776 and 1777. 1776 consists of six photographs,
1777 consists of seven.
MR. TIGAR: I thought 1776 was in.
MR. MEARNS: I may have listed them before.
Mary Jasnowski - Direct
THE COURT: Yes, 1776 and 1777 were received by
agreement.
MR. TIGAR: Well, then, we still consent. Thank you,
your Honor.
MR. MEARNS: Could I have 1776, Photograph No. 1,
please.
BY MR. MEARNS:
Q. What do we see in this photograph?
A. This is the entrance into the storage room of the garage,
from the house.
Q. So you're standing outside that storage area?
A. That's correct.
Q. And Photograph No. 2, please. What is that?
A. This is inside that storage room, and that's against --
these are ammunition boxes that are against the wall, the west
wall of that storage unit.
Q. And Photograph No. 6, please.
A. This is a --
Q. What is that?
A. This is a Michigan license plate that was found in that
room on a crate there.
Q. Orient us to the photograph. Is it resting on the crate,
or is it nailed to the crate?
A. Oh, no, it's resting on it. This is a side picture.
Actually it should be turned for it to be the actual way it
Mary Jasnowski - Direct
was.
Q. And could you just for the record read what the license
plate is?
A. It's Michigan, it's WX1460.
Q. On the witness stand, you have what is in evidence as
Government Exhibit 83A and -- Government Exhibit 86.
A. 83 and 86?
Q. Yes. I'm sorry, 83, not 83A. 83.
A. Yes.
Q. Those are motel registration cards. Do you see that?
A. Yes, I see that.
Q. Beginning with 83, could you read the name that's listed
there and the license plate, the vehicle license plate.
A. It says, "Name: Terry Havens." "Car License: WX1640."
"State: Michigan."
Q. And then with Exhibit 86, please.
A. "Name: Joe Havens." "License: WY" -- or "WX1640."
"State: Michigan."
Q. Did you then proceed to photograph the garage?
A. Yes.
MR. MEARNS: And if we could have 1777, Photograph
No. 1.
BY MR. MEARNS:
Q. Would you tell us what's in that photograph, please.
A. This is the door from the storage area looking into the
Mary Jasnowski - Direct
auto part of the garage.
Q. And Photograph No. 4, please. What is that?
A. This is a crate that was located on the south wall of that
auto garage.
Q. And what was found on top of that crate?
A. Well, that's a fuel meter on top of the crate. And there's
other tools there as well.
Q. And Photograph No. 5, please.
A. That's the bathroom that was in the auto garage on the
north wall.
Q. About how long did it take to photograph the garage and the
storage area?
A. Approximately 20 to 30 minutes.
Q. After that process was completed, did you go back to the
house to continue to assist in the search of the house?
A. Yes, I did.
Q. After that search was complete, did you assign agents to
assist you in actually searching this garage and storage area?
A. Yes, I did.
Q. And did you also supervise this search?
A. Yes, I did.
Q. About what time was the entire search of both the house and
the garage -- what time was that completed?
A. Approximately 4 a.m.
Q. What did you do then?
Mary Jasnowski - Direct
A. Well, I instructed the photographer to make exit
photographs of the premises. When that was completed, I
dismissed my team. I went and made -- to the Herington Public
Safety Building, leaving agents still in control of the
premises, where I made copies of the search warrant and our
inventory, which I brought back to the residence to leave for
Mr. and Mrs. Nichols.
Q. Let me ask you a couple of questions about that. You said
you instructed someone to take exit photos?
A. Yes, I did.
Q. Was that Mr. Grindstaff?
A. Yes, I did.
Q. Were you present when those exit photos were taken?
A. Yes, I was.
Q. What was the purpose of taking those exit photos?
A. Well, it's pretty standard procedure. We would do that to
indicate the condition of the premises as we found it. They
could be compared with our entry photographs, in case someone
filed a claim to say that something was taken or broken or
whatever.
Q. And you said that, then, you made copies of inventories?
A. Yes, I did.
Q. What are those inventories? What do they reflect?
A. The inventories reflect all the items we seized pursuant to
the warrant.
Mary Jasnowski - Direct
Q. And where did you take those inventories?
A. I took them to the Herington Public Safety Building. It
was the nearest place that had a copying machine so I could
leave a copy for the Nichols.
Q. Did you go back and leave a copy in the residence?
A. Yes, I did.
Q. What did you do with the actual evidence that had been
accumulated and placed in the truck?
A. The evidence that -- we had loaded everything up onto the
truck. It was driven -- an FBI agent accompanied the military
people who were driving the vehicle to the Herington police
station, and I observed it enter within the fire truck entrance
of the police station as I was doing my copying. So I saw it
there.
Q. Did there come a time after April -- well, I guess we're
talking about 4:00 in the morning on April 23; right?
A. That's right.
Q. Did there come a time either later that same day or the day
after when you with someone else photocopied all of the
documents and papers that were taken from Mr. Nichols'
residence?
A. Yes.
Q. Tell us about that, please.
A. Well, we were asked to photocopy any documentary evidence
we had discovered for lead purposes, and I assigned one of the
Mary Jasnowski - Direct
agents to segregate from each item those items of documents;
and later that day, when we had returned to the Fort Riley
command post, that agent and I transported those documents over
to the headquarters at Fort Riley, and we photocopied those
items.
Q. Who was the agent that assisted you?
A. G. William Nellis.
Q. Did you photocopy every piece of paper and document that
came from the house on April 22 and April 23?
A. With some exceptions.
Q. What were those exceptions?
A. There were -- with some of the coins that we recovered,
there was a receipt, and I made the decision not to photocopy
that because I did not want to tamper -- not tamper with it,
but to contaminate it or something with fingerprints.
MR. MEARNS: I have no further questions, your Honor.
THE COURT: All right. Mr. Tigar.
CROSS-EXAMINATION
BY MR. TIGAR:
Q. Hello again, Agent -- Jas-now-ski?
A. Yes, that's correct.
Q. Am I pronouncing it correctly?
A. Yes.
Q. Thank you. This is cross-examination. When you were at
Notre Dame law school, did you take a course from Professor
Mary Jasnowski - Cross
Seckinger?
A. Yes, I did.
Q. So you know what cross-examination is?
A. Yes, I do.
Q. Well, I want to start by asking you some questions about
how you all got there to the house, what you did before. Had
you -- were you aware that an S-I-O-C had been set up?
A. A SIOC?
Q. Yes.
A. There was one -- I was aware that there was one at our
headquarters, yes.
Q. Yes, at FBI headquarters.
A. Yes.
Q. Now, when you got to Herington, were you in contact with
the SIOC?
A. Yes, I was.
Q. What does SIOC stand for?
A. I'm not exactly certain, special investigation operations,
something like that.
Q. Something like that?
A. Yes.
Q. Did you talk to the personnel of the government who were at
the SIOC in Washington?
A. Some of them, yes, I did.
Q. Did you talk to Mr. Shapiro?
Mary Jasnowski - Cross
A. No, I did not.
Q. Did you talk to lawyers that were there?
A. No, I did not.
Q. You were talking to other agents; right?
A. Right. People at the laboratory division.
Q. Okay. When you got to Herington -- I'm trying to trace
your movements. First you went to the Fort Riley command post;
is that right?
A. Yes.
Q. And then you were told to go to Herington?
A. The next day, yes.
Q. The next day. And that day you had a briefing as to what
you were to do; correct?
A. That's correct.
Q. Who conducted the briefing?
A. Assistant Special Agent in Charge Dale Watson.
Q. And did you participate in briefing the agents who were
there?
A. I briefed my team. I didn't brief the rest of the agents,
no.
Q. When you say "your team" as distinct from the rest of the
agents, was your team the one that was going to search
Mr. Nichols' house?
A. Yes, that's correct.
Q. Now, there was a time when you were asked to do some
Mary Jasnowski - Cross
plaster casts; correct?
A. That's correct.
Q. But that was called off; correct?
A. That's correct.
Q. When were you asked to do the plaster casts?
A. Upon arriving at Herington, approximately noon or one.
Q. On the 22d?
A. Yes.
Q. And that was a Saturday?
A. Yes.
Q. Now, what was the weather like on the 22d?
A. It was cloudy and cold and windy.
Q. Had it been raining?
A. At that time I don't believe it had been. It didn't begin
to rain until later.
Q. And when did it start to rain?
A. I would say about 3:00 the following morning.
Q. At 3 -- by 3:00 the following morning, do you know whether
or not Agent Bodziak had arrived?
A. Yes, I was told that he had.
Q. Had he taken his casts by the time it started raining?
A. I believe he had.
Q. But you're not sure, but you believe that?
A. I didn't witness him do that, no.
Q. I understand. Had it rained -- from what you could see on
Mary Jasnowski - Cross
the ground around, had it rained the day before?
A. It's possible. I couldn't tell.
Q. Now, this briefing you had before you went in the house,
did that briefing include consideration of the safety of the
searching personnel?
A. Yes, it did.
Q. Because this was a bomb investigation?
A. Correct; that's correct.
Q. And you would be concerned to know whether or not there
were things in the house that might injure your people.
A. That's right.
Q. Did you have a report from the agent -- from anyone --
about a conversation that they had had with Mr. Nichols on the
subject of the safety of the searching agents?
A. I don't recall. Whether they communicated what Mr. Nichols
said. Or -- information was given. I didn't know what the
source of that information was.
Q. Okay. Did you -- well, without getting into too much
detail about this, were you told that somebody had said that
there just weren't any booby traps or things like that in the
house?
A. I don't recall someone saying that, no.
Q. Now, you've mentioned that you had a warrant; correct?
A. Yes.
Q. And that warrant had been obtained by Agent Scott Crabtree?
Mary Jasnowski - Cross
A. Yes.
Q. And had been signed by a judge; right?
A. A magistrate, yes.
Q. Were you aware that Mr. Nichols had been in the Herington
police station the day before?
A. I believe I knew he was there because his vehicle was still
there.
Q. And were you aware that Mr. Nichols had been asked to stay
with the government as a material witness?
A. I wasn't aware of that at the time.
Q. Okay. You knew he wasn't at home?
A. Yes, I knew he wasn't at home.
Q. Now, you mentioned towards the end of your direct
examination that it is your practice when a search is finished
to have an inventory of what is taken that is left for the
household?
A. That is correct.
Q. Now, there was no one at home during your search, was
there?
A. No, there was not.
Q. Do you know where Mrs. Nichols was?
A. At the time I wasn't sure where she was, no.
Q. You just knew she wasn't at home?
A. Right.
Q. Your information was that no one would be at the Nichols
Mary Jasnowski - Cross
home.
A. That's correct.
Q. Now, in addition to wanting to know about the safety of the
searching agents, you were -- you knew that one of the things
you'd be looking for were guns and ammunition; correct?
A. Yes.
Q. You knew that -- did you know -- was it your information
that Mr. Nichols was in the business of selling guns and
ammunition?
A. No, I didn't know that.
Q. By the way, the ammunition cans that we saw so many
pictures of, they didn't have any ammunition in them, did they?
A. In those specific pictures they didn't, but I believe there
were ammo cans with --
Q. There were some ammo cans. I'm talking about the big
stacks of ammo cans.
A. In the outside --
Q. In the outside shed.
A. No, there was no ammo in those cans.
Q. Those are military surplus ammo cans; correct?
A. If you say so. They look like ammo cans to me.
Q. Ammo cans. And you also saw picks there?
A. I'm sorry?
Q. Did you see picks, you know --
A. Yes.
Mary Jasnowski - Cross
Q. Picks. You saw shovels?
A. Yes.
Q. A lot of picks.
A. Yes.
Q. A lot of shovels.
A. Yes.
Q. A lot of saws.
A. Yes.
Q. Did you see nails?
A. Yes.
Q. A lot of nails, okay. Did you have a -- did someone show
you a sketch plan of the house --
A. No.
Q. -- before you went in?
A. No, they did not.
Q. Have you, between that time and today, seen a sketch plan
of the house prepared by Mr. Nichols?
A. I -- yes, I have. Well, not by him. I've seen the one
that was prepared by . . . I'm not even certain who prepared
it. I've seen another sketch other than the one that I've
prepared -- or my team prepared.
Q. I'd like to show you what I have marked as Defendant's
Exhibit 1627.
MR. TIGAR: May I approach, or perhaps Mrs. Hasfjord.
THE COURT: Yes.
Mary Jasnowski - Cross
MR. TIGAR: All right. I'm permitted to.
BY MR. TIGAR:
Q. Ask you if you have ever seen that before?
A. No, I have not.
Q. All right. So is it your testimony that no one told you
prior to the time you went to Mr. Nichols' house that
Mr. Nichols had made a sketch of his house?
A. I don't recall them telling me that, no.
Q. Did anyone tell you that Mr. Nichols had marked where his
guns and ammunition were in his house?
A. No.
Q. And when I say "no one," I mean that nobody on the search
team said, Well, we're going to go look for these guns and
Mr. Nichols told us where they are?
A. I believe upon entry, one of the ATF agents who had been in
the protective sweep made a mention that they had seen a gun in
the house, but that's the only mention of guns that I recall.
Q. That's the only mention. So you've never seen this
document?
A. No, I have not.
Q. Did -- were you told that -- on the 21st that Mr. Nichols
had signed a consent to search his house?
A. I believe I had heard that.
Q. So you knew -- and there is a standard FBI form, is there
not --
Mary Jasnowski - Cross
A. Yes, there is.
Q. -- for a consent to search? Had you seen that document
that evening?
A. No, I did not.
Q. Prior to entering the house?
A. No.
Q. Have you seen it since then?
A. No, I have not.
Q. So it wouldn't do me any good to show one to you, would it?
A. No, it wouldn't.
Q. Okay. Now, the 22d when you went in there was not the last
time that the FBI was in the house, was it?
A. No, it's not.
Q. In fact -- well, you went in again -- did you participate
in later searches of the house?
A. Yes, I did.
Q. Okay. And to your knowledge, when was the last time that
the FBI was in there, in the house?
A. Well, from my team, the last time someone was in there was,
I believe, the 24th, but I know that the Kansas City division
went in again. I'm not certain when.
Q. They went in on a number of other occasions?
A. I don't know how many.
Q. Do you know an Agent Earl?
A. I've heard the name.
Mary Jasnowski - Cross
Q. When you went into the house, you had a team of people;
correct?
A. Yes, I did.
Q. And that would -- if I can just read off the names here,
you had Steven Burmeister; correct?
A. Yes.
Q. Ronald Kelly?
A. Yes.
Q. Were you at any time with any evidence recovery people at
the Geary Lake state fishing park?
A. No, we were not.
Q. Okay. All right. You had Andrew Grindstaff with you;
correct?
A. Yes.
Q. The photographer.
Mr. Hupp?
A. Yes.
Q. From Washington. Yes?
A. Yes.
Q. Agent Williams?
A. Yes.
Q. Agent Nellis?
A. Yes.
Q. Agent Tucker?
A. Yes.
Mary Jasnowski - Cross
Q. Agent Thomas?
A. Yes. Well, she's not an agent.
Q. I'm sorry. Photographer Thomas?
A. Yes.
Q. Evidence Control Technician Hernandez?
A. Yes.
Q. Agent Tongate?
A. Yes.
Q. And that's the gentleman right here?
A. Yes, it is.
Q. Agent Meredith?
A. Yes.
Q. Agent West?
A. Yes.
Q. Agent Scott?
A. Yes?
Q. Agent Hillman?
A. Hillman, yes.
Q. Photographer Sandrige.
A. Yes.
Q. And yourself; correct?
A. Yes.
Q. Plus you had people from ATF; correct?
A. Yes, Mr. DeNardi.
Q. And you had someone from CID, Army CID?
Mary Jasnowski - Cross
A. They were not in the search. He was on the premises.
Q. That was Mr. Sonz-Agero?
A. Yes.
Q. And then you had some other Army personnel?
A. Right. And Mr. Hillman didn't participate in the search,
either. He was just on the premises.
Q. And you were in charge?
A. Yes.
Q. Now, in order to take your evidence to FBI Laboratory, you
had to have a conveyance; correct?
A. That's correct.
Q. Or to wherever were you were going to take it?
A. Yes.
Q. And that was provided by the Army?
A. Yes, it was.
Q. Now, before you started your search, did you inspect the
Army vehicle that had been brought?
A. I looked at it, but I didn't inspect it in any way.
Q. Uh-huh. Had it been power-washed, swabbed down, or
cleaned?
A. I wasn't aware of it, if it had been.
Q. All right. So you have no knowledge of that?
A. No.
Q. Now, you mentioned in direct examination that you and the
other agents wore some kind of protective clothing; right?
Mary Jasnowski - Cross
A. Yes.
Q. Now, is that locally called bunny suits?
A. People have called it that, yes.
Q. People have -- all right. And that's designed to protect
the evidence; correct?
A. Right.
Q. It's called that because it makes you look like Peter
Rabbit or something like that?
A. True, yes, it does.
Q. All right. Now, when you got in the house, you also put
gloves on; correct?
A. Oh, absolutely, yes.
Q. And these gloves were standard-issue evidence-recovery
gloves; right?
A. Well, they're just rubber gloves.
Q. Rubber gloves. Lined with talc?
A. Some of them were; some of them weren't.
Q. Did you make any distinction in the work you were doing as
to which agents were to receive gloves lined with talc and
which agents were?
A. No, I did not.
Q. Okay. Do you know what talc is made of?
A. No, I don't.
Q. In your search, were you directed to look for papers that
concerned someone named Parker?
Mary Jasnowski - Cross
A. I don't recall that name.
Q. Were you directed to look for someone named Kyle?
A. I don't recall that name.
Q. When you say you don't recall that name, did anyone tell
you that Mr. Nichols said that he had rented storage sheds in
the names of Parker and Kyle during the time that he had been
interviewed by the police officers or by the FBI agents at the
Herington station there?
A. No, I hadn't been told that.
Q. Okay. I want to review, if I can, some of the pictures
that you looked at here.
It says on.
This is 1767, No. 6?
A. Yes.
Q. If we could look here. And if we zoom in, we see a box
from Kinko's; correct?
A. Yes.
Q. And what is in the box?
A. Business cards, is what it says on the outside.
Q. And is there one of those business cards pasted on the end?
A. Yes, it is.
Q. And whose name is there in big letters?
A. Terry Nichols.
Q. Okay. And next to that is a bag that also appears to be
from Kinko's; correct?
Mary Jasnowski - Cross
A. To the right or to the left?
Q. To the left, it says -- and you can just see the O
apostrophe S, and so on?
A. I can't see it.
Q. Let's zoom out a little more there.
A. Oh, I see it.
Q. Can you see that?
A. Yes. Yes.
Q. And you recognize that as some part of Kinko's logo?
A. Yes.
Q. And that you say was in the dining room; is that correct?
A. Yes.
Q. Did this appear to you to be just somebody's business
papers?
A. Yes.
Q. Spread out there on the table?
A. Yes.
Q. Now, during the time that you were in the house, did you
seize a book called Hunter?
A. I don't believe we did.
Q. And in fact, when you were being shown pictures, you were
shown a picture that included a Quaker State box; correct?
A. Yes.
Q. Do you remember that picture?
A. Yes.
Mary Jasnowski - Cross
Q. That would be 1773, No. 12.
I don't happen to have it here, but we all remember
it. It's the Quaker State box; right?
Could you just hold that up for the jury. They've
seen it with another witness, and just to remind everybody what
it is.
A. No. 12 isn't here. I have 11 --
Q. Well, maybe I've got the wrong note here. Then I'll
apologize to you for that.
THE COURT: Mr. Mearns, can you help us as to which
that is.
MR. MEARNS: We could switch to the computer and put
it on.
MR. TIGAR: Oh, you could? Thank you. I would
appreciate that.
Here it is.
BY MR. TIGAR:
Q. I thought it was No. 12.
A. Yes, now I see it.
Q. Now we see it on the screen.
A. Yes.
Q. Do you remember seeing that box on the 22d?
A. I don't remember on the 22d seeing it, but now I see it,
yes.
Q. But at any rate, you didn't take -- you didn't get any book
Mary Jasnowski - Cross
called Hunter at any time during your search, did you?
A. No.
Q. And/or -- were you aware, if you saw that box on the 22d,
even what was in there?
A. I -- no, I wasn't aware.
MR. TIGAR: Thank you very much.
BY MR. TIGAR:
Q. Now, when you looked through the house, did you see books?
A. I don't recall if there were books -- you mean hardbacks,
paperbacks? There were some.
Q. Well, in fact, in your evidence recovery process, you
seized some books, didn't you?
A. I believe so, yes.
Q. Now, did other people than yourself also keep parts of the
evidence recovery log?
A. Yes. I only kept the log to one area. Most of the logs
were kept by the agents who were actually doing the searching
in those rooms.
Q. Now, did you review the logs at a later time?
A. Yes, I did.
Q. So at least at that time you were familiar with what was in
there; right?
A. Right.
Q. And there were -- you seized a number of videotapes;
correct?
Mary Jasnowski - Cross
A. Yes.
Q. One agent reported seizing something that that agent called
antigovernment literature; right?
A. Yes.
Q. You remember that?
A. Yes, I remember seeing that.
Q. And that was radical stuff; right?
A. Yes.
Q. Did you read it?
A. No. I glanced at it when I photocopied it, but I didn't
read it.
Q. You also seized a book called Homeopathic Primer; correct?
A. It's possible.
Q. Yes. And what was Homeopathic Primer about?
A. Medicine, using natural methods, I would imagine. I'm not
certain.
Q. Did you seize a book called Cancer Home Reborn?
A. It's possible.
Q. Okay.
A. It wasn't specifically listed, I don't think. Was it?
Q. If I showed you, would that --
A. Yes, it would.
MR. TIGAR: May I approach, your Honor?
THE COURT: Yes.
BY MR. TIGAR:
Mary Jasnowski - Cross
Q. I show you what is marked as page 4 of four of a portion of
the evidence log kept by Agent Williams, and I ask you if that
refreshes your recollection.
A. Yes, it does.
Q. Pardon me?
A. Yes, it does.
Q. You've seized a book called Cancer Home Reborn?
A. Yes.
Q. Now, in directing your agents at your briefing, did you
tell them which books should be seized and which should not?
A. Well, yes. Generally, yes, it was mentioned.
Q. And what general criteria did you give them about what
books should be seized and which should not?
A. Well, we looked at -- I think it's paragraph 6 of the
attachment. It basically referred to any writings that would
lead us to associates or whatever that would relate to the
bombing.
Q. And as you were looking through the house, did you notice
that there were a number of books on different subjects in the
house?
A. I didn't notice that, no.
Q. All right. So that if I were to -- well . . . Would it
refresh your recollection if I mentioned the name Main Line
Farming for Century 21?
A. No it wouldn't.
Mary Jasnowski - Cross
Q. Would it refresh your recollection if I said Gridlock in
Government?
A. I don't remember. I don't specifically recall those books.
Q. Okay. So that it really -- and I don't want to prolong
this. It wouldn't do me any good to read through all these
book titles and ask you if that refreshes your recollection.
A. Right, it would not.
Q. Because you just don't remember?
A. I don't recall.
Q. All right. Did you have a conversation with any of the
agents about why they had -- on what basis they had seized this
Cancer Home Reborn and the other book?
A. No, I never talked to them about that. During the evening
when we were doing the search, they would ask me if -- on
occasion they would ask me if it was something that the warrant
permitted; but generally, they had their discretion as to what
they wanted to seize.
Q. They could seize whatever they wanted?
A. Well, within the confines of what the warrant said.
Q. I understand. And I'm not trying to suggest otherwise.
A. Right.
Q. The people that were doing the seizing were experienced
agents of the FBI; correct?
A. Yes, they were.
Q. Now, you mentioned that before you all went into the house
Mary Jasnowski - Cross
and began your process, that Agent Burmeister and some others
were in there; correct?
A. Well, they entered prior to our entry, yes.
Q. Okay. And did they take air samples? Did you observe them
doing that?
A. I did not observe what they were doing, no.
Q. Okay. And did you observe them taking soil samples,
scrapings?
A. Soil samples, within the house? I didn't --
Q. No, there wouldn't be soil samples within the house; but,
you know, on people's shoes and tires and -- you know what I'm
talking about. That is to say, when you go into a -- well, let
me not get ahead of myself.
When you go in to make a search, in your experience,
do forensic laboratory people take scrapings from the bottoms
of shoes and other places where dirt or soil might have
adhered?
A. I've never observed it, no. You mean of their own
clothing; is that what you're asking me?
Q. No, no, no. I'm asking about in your experience as an FBI
agent, do you know that forensic technicians of the Bureau at a
crime scene take dirt samples from the shoes of a -- that are
found at a search scene in order to compare them with soil
samples that are taken from outside, some other place?
A. I would imagine that's so, yes.
Mary Jasnowski - Cross
Q. Okay. And have you read about that?
A. Well, not extensively, no. Generally, yes.
Q. I'm just asking you -- and I'm not trying to test you on
this. Did you observe anybody doing that?
A. No, I did not.
Q. Okay. Did you observe people dusting for fingerprints?
A. I don't believe so, no.
Oh, well, I did not observe that, no.
Q. Okay. Now, I'm not saying it wasn't done; you didn't
observe it, if it happened?
A. Right, I did not observe it.
Q. Now, let me put up here 1767, No. 2, if I may.
A. Yes.
Q. That television set was in the corner; correct?
A. Yes, it was.
Q. Now, and it has -- it has a VCR attached to it; correct?
A. Yes, it does.
Q. It does not have an antenna, does it?
A. I guess not.
Q. Did you observe whether or not there was cable service laid
on in the house?
A. I did not pay attention to that.
Q. Did you seize the television set on that day?
A. No. Not on that day.
Q. You're aware that it was later seized by the FBI; is that
Mary Jasnowski - Cross
correct?
A. Yes. Yes.
Q. Now, in some of these pictures that you showed us, there
were a number of -- there were cardboard boxes -- correct --
especially in that second bedroom?
A. Yes.
Q. And did those -- did you look inside those?
A. I did not, but I know that people --
Q. Agents did?
A. Yes.
Q. Did it appear to you that there were things in it that
looked like somebody had moved into the house recently?
A. Yes, it did.
Q. Okay. Now, you mentioned also in direct examination that
as you approached the house, you saw some prill-like things;
correct?
A. Right.
Q. Now, had anybody told you that Mr. Nichols had said the
night before when he was being -- said that he did have
ammonium nitrate fertilizer in a small amount that he had put
on his lawn?
A. I don't know when I heard that, but I became aware of that
at some time. I don't know whether it was then or later.
Q. During your search, did you seize some plastic bottles in
the quart-type size, pint or quart-type size?
Mary Jasnowski - Cross
A. Yes, we did.
Q. And are those plastic bottles such as you might see at a
supermarket where you're buying bulk products or --
A. Yes.
Q. -- things like that?
A. Yes. They looked professionally packaged.
Q. Okay. And did you see any plastic -- small plastic bottles
with labels on them that said that it was fertilizer or plant
food?
A. Yes.
Q. Okay. Small ones about like yea; correct?
A. Yes.
Q. Now, did you open up any of those bottles to see what was
inside?
A. Not at that time, no.
Q. Later on, you did?
A. I did not, no.
Q. But you're aware that somebody did?
A. Yes.
Q. And did you know when you went into the house whether or
not Mr. Nichols had said the evening before when he was with
the FBI agent: "Look, I grind up ammonium nitrate in small
amounts, and I put labels on it and I sell it"?
A. I did not receive that information.
Q. You did not receive that information?
Mary Jasnowski - Cross
A. No.
Q. Before you went into the house, did you ever talk to Agent
Foley?
A. No.
Q. Did you ever talk to Agent Jablonski?
A. I don't recall talking to him before I went into the house.
Q. And did you ever, to your knowledge, talk to any of the
agents who had spoken with Mr. Nichols the night before?
A. I don't recall them telling me that they had, no.
Q. Okay. You might have, but --
A. Yes.
Q. -- certainly that wasn't something that they shared with
you?
A. That's correct.
Q. Now, out there in that shed, you saw some 55-gallon drums;
correct?
A. That's correct.
Q. Now, when you saw them, how many 55-gallon drums were
there?
A. There were four.
Q. Did they have labels on them?
A. Yes, they did.
Q. And what did the labels say?
A. I believe they said --
Q. If you remember?
Mary Jasnowski - Cross
A. -- Ster-Bac.
Q. Ster-Bak, S-T-E-R dash B-A-K?
A. B-A-C, I think.
Q. B-A-C? Whatever it was.
A. Yes.
Q. What is Ster-Bac, if you --
A. I have no idea. I imagine it's a company name or a trade
name.
Q. Did the barrels contain Ster-Bac?
A. I don't know. What is Ster-Bac? No, they did not --
Q. Well, would it refresh your recollection if I said that
Ster-Bac is something used to clean dairy barns?
A. Well, definitely they did not contain Ster-Bac.
Q. Okay. For whatever purpose they were, they were -- did
they have -- being used for storage?
A. Yes, they were.
Q. Okay. And you found -- what color were they?
A. They were white with the blue rims.
Q. Okay.
MR. TIGAR: Now, I believe 1770A is in evidence. Am I
correct?
THE COURTROOM DEPUTY: Yes.
THE COURT: 1777A?
MR. TIGAR: 1770A.
THE COURTROOM DEPUTY: No.
Mary Jasnowski - Cross
MR. TIGAR: I hope my notes are not -- not in error.
BY MR. TIGAR:
Q. Now, you mentioned that out in the shed there, you saw a --
you were shown a picture of something; and you identified it as
a fuel meter; is that correct?
A. That's correct.
Q. Do you know a fuel meter is?
A. It measures fuel.
Q. And who brought that to you?
A. Who brought that to me?
Q. Yes.
A. No one brought it to me. I saw it in there.
Q. I understand. But at sometime, the FBI took whatever that
was into custody; correct?
A. Yes, we did. In fact, I was there when we took it.
Q. When was that?
A. The next day.
Q. The next day. And what agent brought it to you?
A. No agent brought it to me. I assisted in the retrieval of
it.
Q. You assisted in the retrieval.
A. Right.
Q. Now, that fuel meter was in pieces, wasn't it?
A. Yes.
Q. And when you said on direct examination that there was a
Mary Jasnowski - Cross
fuel meter there, you didn't mean to suggest that it was an
operable fuel meter, did you?
A. Well, I don't know whether -- no, if it's in pieces,
obviously not.
Q. Right. And have you later conducted investigation to
determine whether that thing even worked or not?
A. I don't even know. I imagine, yes.
Q. That the investigation was conducted?
A. I have no idea.
Q. Okay. But you don't know whether one was conducted or what
the results of it were; is that correct?
A. That's correct. That's correct.
Q. And from -- based on your knowledge and experience -- Were
you raised on a farm?
A. No, I wasn't. Small farming town but not a farm.
Q. Okay. So you've never used a fuel meter, have you?
A. No, I haven't.
Q. Except whatever they had when we get our gas --
A. Exactly.
Q. -- at the station.
Now, you said that after all of this material was
assembled that it was put in the Army truck; correct?
A. That's correct.
Q. And the Army truck was driven by a soldier with an FBI
agent escort?
Mary Jasnowski - Cross
A. Two soldiers, FBI agent escort.
Q. In the truck?
A. Yes.
Q. 'Cause only one was doing the driving?
A. Right. Yes.
Q. 'Cause it's just a regular truck; right?
A. Right.
Q. Okay. And it went up to Fort Riley?
A. No; it went to the Herington Police Department.
Q. First it went there; and after that, what happened to it?
A. It was taken to Fort Riley.
Q. Okay. And after it was taken -- after it left the
Herington police station, did you ever see the truck again?
A. Yes, I did.
Q. All right. And where was that?
A. It was at the Fort Riley, at the command post area.
Q. Did you participate in unloading the truck?
A. I was there when they unloaded it. When it was unloaded.
Q. And what happened to the material that was collected?
A. It was placed into a storage area behind the military
police headquarters at Fort Riley.
Q. Is that the last time you saw the evidence --
A. No.
Q. -- before coming to court today?
A. Oh, no. I've seen it numerous times since then.
Mary Jasnowski - Cross
Q. You've reviewed it many times since then?
A. Yes.
Q. So you're aware that some of evidence was sent to the FBI
Laboratory?
A. Yes. I was present when this evidence that was sent to the
laboratory was loaded into the plane and sent to the
laboratory.
Q. Oh, I see. So there came a time when evidence was loaded
into a aircraft?
A. Yes.
Q. Was that C-130?
A. No, I don't believe so. It was a smaller Bureau aircraft.
Q. What happened to Mr. Nichols' truck?
A. I really don't know. The last time I saw it, it was at the
command post at Fort Riley.
Q. So you don't know how that truck was taken to the
laboratory to be analyzed, or if it was?
A. No, I don't.
Q. When you were doing your briefing there on the 22d --
A. On -- yes, okay.
Q. On the 22d. Do I have the date right?
A. I think so, yes.
Q. Okay. We're talking about the Saturday; correct?
A. Yes. Yes.
Q. 'Cause you only had one briefing?
Mary Jasnowski - Cross
A. Right.
Q. And that was the one before you went into the house?
A. Yes.
Q. Now, when you were doing the briefing, was your objective
to do as thorough a search within the terms of the warrant as
you possibly could?
A. Oh, yes.
Q. And you had, as you've described, a number of agents to do
that; correct?
A. Yes. That's correct.
MR. TIGAR: And . . . I forgot the last question I was
going to ask. It really must not have been very important,
then.
I thank you very much.
THE COURT: Mr. Mearns, do you have any follow-up?
MR. MEARNS: Very briefly, your Honor.
May I have just a moment?
THE COURT: Yes.
REDIRECT EXAMINATION
BY MR. MEARNS:
Q. Agent Jasnowski, as a lawyer for the FBI, you know that in
order for the FBI or for any other law enforcement person to
enter and search somebody's residence, they need legal
authority to do that, correct?
A. That's correct.
Mary Jasnowski - Redirect
Q. And you understand that that legal authority can either be
by consent or by a warrant signed by a magistrate or a judge;
right?
A. That's correct.
Q. And in this instance, the FBI and the law enforcement
agents decided to rely on the authority of a judge, as opposed
to consent?
A. That's correct.
Q. Why was that?
A. I'm not exactly certain why they decided. I mean, we had
consent, but they got a warrant as well.
Q. Were you present when Agent Earl found and seized the
Hunter?
A. No, I was not.
Q. You indicated that it was possibly raining on April 21st or
April 22d before you arrived.
A. It's possible.
Q. Was it humid and damp that day?
A. It was humid, yes.
Q. Yet when you arrived on April 22, there were still those
little white prills on the steps?
A. They were under the awning part of the porch, so, yes.
Q. You were asked questions by Mr. Tigar about the barrels
that you found in the garage?
A. Yes.
Mary Jasnowski - Redirect
Q. They didn't contain any liquid or fluid; is that correct?
A. No, they did not.
Q. What did you find inside the barrels?
A. I found all sorts of bolts, nuts, keys.
Q. What kind of keys?
A. I found some safe deposit keys.
MR. MEARNS: No further questions, your Honor.
THE COURT: Mr. Tigar.
MR. TIGAR: No, nothing further.
Thank you very much, Agent Jasnowski.
THE COURT: Is this witness excused?
MR. MEARNS: She will return later.
THE COURT: She will return.
You may step down now.
Next witness.
MR. MACKEY: We'll call Allen Radtke.
THE COURT: Mr. Radtke.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(Allen Radtke 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: Allen E. "Bud" Radtke. R-A-D-T-K-E.
THE COURTROOM DEPUTY: Thank you.
Mary Jasnowski - Redirect
THE COURT: Mr. Ryan.
MR. RYAN: Thank you.
DIRECT EXAMINATION
BY MR. RYAN:
Q. Your nickname is "Bud"?
A. Yes.
Q. Where do you live?
A. Marion, Kansas.
Q. You live on a farm?
A. I'm out in the country, yes.
Q. Are you married?
A. Yes.
Q. Children?
A. Three.
Q. And where did you grow up, Mr. Radtke?
A. North Dakota.
Q. And what do you for a living?
A. I'm a driller and a blaster for Martin Marietta quarry.
Q. And what is a drill and blaster?
A. I drill holes in the rock and load explosive to break the
rock down to be crushed into road stone and concrete stone.
Q. Now, do you do this in a quarry?
A. Yes.
Q. Would you tell us what a quarry is?
A. It's an area where we uncover the rock. It's down below
Allen Radtke - Direct
the earth surface, the dirt; and we just strip off the dirt and
have a formation of rock anywhere from nine to 20 feet deep.
The location of the one I'm at right now is just north
of Marion; and it's basically -- I just drill holes in the rock
with a drilling machine and put the explosives in and break it
up with the explosives to be crushed down.
Q. Do you -- have you worked at quarries for a long time?
A. 14 years.
Q. And how long have you been a driller/blaster?
A. Going on 12.
Q. Now, how many people work there at the quarry?
A. Nine in our crew.
Q. I'm going to show you a map that's already in evidence as
Exhibit 2045 and ask you to find the or locate the quarry for
us. You've got a pen there on the desk. If you set it on top
of the screen, it will make a mark.
A. On top here?
Q. No, underneath that top. Right on the screen.
A. Location of the quarry?
Q. Yes.
A. Right here.
Well, that's not right. In that -- it's a little
farther south than that.
Q. All right. About how far is it from Marion?
A. Just about 2 miles.
Allen Radtke - Direct
Q. And do you know where the Donahue Ranch is, the Hay Hook
Ranch?
A. In that general area there.
Q. About how far is Donahue Ranch from the quarry?
A. About 15 miles.
Q. Now, I would like to show you another exhibit which we've
marked as Exhibit 117 for identification purposes, ask you if
you can identify this.
A. That's an aerial photo of the quarry.
Q. Is it an accurate photograph of the quarry you work at in
Marion?
A. Yes.
MR. RYAN: Your Honor, we would offer Exhibit 117.
MR. TIGAR: No objection, your Honor.
THE COURT: 117 is received.
MR. TIGAR: And similarly, no objection to any of the
photographs of that scene, the whole quarry scene, whatever
that series is.
THE COURT: All right, if you could read those in,
we'll put them in.
MR. RYAN: I will, your Honor, and Mr. Tigar can
advise us if he objects as we go along.
THE COURT: Yes.
MR. RYAN: 117, 119.
MR. TIGAR: No objection.
Allen Radtke - Direct
MR. RYAN: 118.
MR. TIGAR: No objection.
MR. RYAN: 120.
MR. TIGAR: No objection.
MR. RYAN: 121.
MR. TIGAR: No objection.
MR. RYAN: 128.
MR. TIGAR: No objection.
MR. RYAN: 122.
MR. TIGAR: No objection.
MR. RYAN: 131.
MR. TIGAR: No objection.
MR. RYAN: 123.
MR. TIGAR: No objection.
MR. RYAN: 124.
MR. TIGAR: No objection.
MR. RYAN: 130 -- excuse me, 141.
MR. TIGAR: I need to voir dire on that, your Honor.
THE COURT: We'll hold up on that, then, until we get
to it.
MR. RYAN: All right, your Honor.
135.
MR. TIGAR: No objection.
MR. RYAN: 1 -- I'm not sure, frankly, your Honor,
whether I've said 134 or not.
Allen Radtke - Direct
THE COURT: No, you didn't.
MR. TIGAR: Did not. No objection.
MR. RYAN: 159. That is actually for identification
purposes only, not to be displayed to the jury with this
witness.
MR. TIGAR: Right, your Honor. I understand. There
will be a later witness that will have that one. We'll deal it
with then.
THE COURT: Then you can ask about it.
MR. RYAN: 122.
MR. TIGAR: That's in.
MR. RYAN: 133.
MR. TIGAR: No objection.
MR. RYAN: 132.
MR. TIGAR: No objection.
MR. RYAN: 126.
MR. TIGAR: No objection.
MR. RYAN: 1840.
MR. TIGAR: I need to voir dire on that briefly, your
Honor.
THE COURT: All right. We'll hold up on that.
MR. RYAN: All right.
THE COURT: So received without objection is 117, 118,
119, 120, 121, 122, 123, 124, 126, 128, 131, 132, 133, 134,
135.
Allen Radtke - Direct
MR. TIGAR: Yes, your Honor.
THE COURT: All right.
MR. RYAN: Thank you, your Honor.
BY MR. RYAN:
Q. All right. Mr. Radtke, the jury can now see the exhibit
there and it's in front of your desk. Would you tell us what
we're looking at in Exhibit 117.
A. It's mostly the stockpile area and our office and scale
house, magazine storage.
Q. And what are we looking at on this closeup?
A. Stockpile area and our scale house, stockpile area out
here.
Q. The house we see to the left is the --
A. Scale house and office area.
Q. When you say "stockpile," what are you talking about?
A. The crushed rock.
Q. This is rock that you've already pulled out of the ground,
it's been crushed and it's stacked up?
A. Yes.
Q. That's what we're looking at here?
A. Right, these piles here.
Q. What else do we see in this photograph?
A. It's a lot like the first one. It's the scale house --
Q. I'm sorry. This is the same photograph. I just had moved
it closer on you there.
Allen Radtke - Direct
A. Yeah.
Q. This is still Exhibit 117.
A. All right. It's, like I said, the scale house --
Q. Let me direct your attention here a little bit. You're
here today because you had a theft at your quarry in late
September, early October of 1994. Is that correct?
A. Yes.
Q. All right. Now, you stored these explosives in magazines;
is that correct?
A. Yes.
Q. Okay. Now, can you show us where the magazines are?
A. Our cap and powder magazines --
Q. Does that help?
A. Yes. That's cap magazine and the powder magazine -- is
right there.
Q. Would you circle the cap magazine, please, first.
A. That's it right there.
Q. And then the powder magazine is the big one behind it?
A. Yes.
Q. And what do you keep in the cap magazine?
A. The blasting caps.
Q. And when you say "blasting caps," what are you speaking of?
A. The electric and non-electric caps that we use in the
blasting of the rock at the quarry.
Q. What about the powder magazine: What do you keep there?
Allen Radtke - Direct
A. It's Tovex -- is the name we use it, is what it's called;
and it comes in stick form, 2-by-16, 3-by-16-inch. It's a
blasting material.
Q. It's an explosive?
A. Explosive.
Q. And so you keep the Tovex in the powder magazine and the
blasting caps in the cap magazine?
A. Yes.
Q. And what other blasting agents do you have at the quarry?
A. The ANFO or ammonium nitrate/fuel oil mixture, fertilizer.
It's kept in the trailer, separate magazine.
Q. Can you see that trailer in Exhibit 117?
A. Yes.
Q. And could you circle that for us?
A. Yes.
Q. Now, the ANFO that you keep there on the quarry: Describe
how it's kept and how -- how you receive it and how it's kept.
A. It's brought to us in a van-type trailer, semitrailer.
It's in 50-pound bags.
Q. Now, the jury's heard a lot about ammonium nitrate; but
this bag of fertilizer is more than just ammonium nitrate; is
that true?
A. Yes. It's mixed with fuel oil and ready to use in our --
in our blasting at the site.
Q. And you keep these pre -- these premixed bags in the
Allen Radtke - Direct
trailer?
A. Yes.
Q. All right. Now, if you were going to be out at the quarry
and you were going to break some stone loose in the quarry,
would you describe for the jury what you would go -- how you
would go about that, how you would use those explosives to
accomplish that.
A. Well, you put -- I use a blasting cap in, a stick per hole;
and so many feet up is where I put the ANFO on top of it, and I
load several of them like that. And that's about -- that's
about the basics of it.
Q. Then you ignite it somehow?
A. With the electric blasting machine. Electronic blasting
machine.
Q. All right. Now, do you maintain a security system there in
the quarry, or did you back in September of 1994?
A. Magazines are locked to AMSHEL requirements.
Q. What about the quarry? Is it locked?
A. Yes.
Q. Let me show you what's been admitted as Exhibit 119 and
have you describe for us what you're looking at.
A. That's the entrance gates to the quarry.
Q. And are these secured somehow?
A. With a padlock.
Q. And what hours are they secured?
Allen Radtke - Direct
A. Between 5 and 6:00 -- 5:00 in the evening till 6:00 in the
morning, 6:30, thereabouts.
Q. And is there another way to get into the quarry that avoids
having to go through this locked gate?
A. There is another entrance. We call it the back, the back
door, more or less. It's just a trail across the pasture.
Q. And is it possible for someone to come onto the quarry at
night, to steal explosives without having to go through this
gate?
THE COURT: You're speaking of a time reference here?
MR. RYAN: I'm sorry, your Honor.
BY MR. RYAN:
Q. Of course in September of 1994?
A. Yes, it would be possible.
Q. Let me show you what's been marked as Exhibit 118. It's
been admitted as Exhibit 118. And help us get oriented here
just a bit with the quarry. Can we see the magazines?
A. No, not in the -- no, not on this picture.
Q. How about the ANFO trailer?
A. No.
Q. Can we see the quarry itself?
A. Yes.
Q. Would you circle the quarry.
Now, where is the front gate in relationship to where
the quarry is?
Allen Radtke - Direct
A. It's not in this picture.
Q. Where off the picture would it be, what direction?
Why don't you try that one again.
It's over there in the top left-hand corner --
A. Yes.
Q. Okay. If someone were familiar with the Marion area, how
would they be able to get onto the quarry without passing
through the locked gate?
A. There is a county road that leads up to a gate and just a
trail, near the old building site, farmstead, across the creek,
and another -- just a trail up along the property line.
Q. All right. Now, back in September, 1994, did there develop
a problem there at the quarry that stopped operations?
A. Yes. We had a machine break down. I think it was on --
probably on Wednesday, noon, Wednesday afternoon.
Q. Do you know what day of the month that was?
A. 28th of September.
Q. And what exactly happened with the machine?
A. A bearing went out.
Q. What did that do to the operation of the quarry?
A. We had to quit crushing for several days, waiting on parts.
Q. And when you couldn't crush, are you using the explosives
in the magazines and the ANFO trailer?
A. No.
Q. Can you tell us when during that week, last week of
Allen Radtke - Direct
September -- when the last time it was that you went to the
explosives lockers or magazines, the cap or the powder
magazines?
A. Probably Wednesday evening, late Wednesday afternoon.
Q. On the 28th of September?
A. On the 28th.
Q. And when was the next time that you went to either of those
magazines or the ANFO trailer?
A. It would have been the following Monday.
Q. Which would have been October 3?
A. Yes.
Q. Now, tell us what you did on October 3 in relationship to
these magazines and trailer.
A. I was told just before noon that they would have the plant
ready for operation later in the afternoon, go ahead and load
up a shot. I went to the ANFO trailer to get ANFO and went on
to the cap magazine, went to unlock the door, and there was no
padlock there. I went over to the powder magazine then and
looked around into where the locks are, and there was no locks
there. And I went and told my plant manager about it at that
time.
Q. All right. Let's show the jury what we're talking about
when we're using those terms, "powder magazine" and "cap
magazine." Tell us what we're looking at here in Exhibit 121.
A. That's the magazine where the powder was kept.
Allen Radtke - Direct
Q. And Exhibit 123?
A. That's the cap magazine.
Q. Okay. Now, when you went over to these magazines and you
noticed that the locks were missing, what did you do?
A. I went and informed my plant manager that we had been
broken into.
Q. Had you entered the magazines prior to getting the plant
manager?
A. No.
Q. All right. Then what happened after you went and got the
plant manager?
A. We went up and quickly took a look at things and called the
local sheriff to come out and investigate.
Q. Then what happened next?
A. Then we got their inventory sheets out and started opening
magazines up and seeing what was missing.
Q. Did there come a time that morning when you went to the
magazine and you had your plant manager with you to inspect the
fact that the lock was not on the magazine?
A. Yes.
Q. And which one did you go to first, if you recall?
A. The cap magazine.
Q. And is this Exhibit 123 right here in front of us?
A. Yes.
Q. Now, where is the lock -- where would the lock be that
Allen Radtke - Direct
secures this magazine?
A. Inside that little square box.
Q. You just can't see it because it's up underneath that?
A. Yes. You reach in from the bottom side to get to the lock.
Q. Let me see if we can find a photograph that perhaps
demonstrates this. Exhibit 128. If you can orient the jury on
where we're looking in this photograph.
A. Yes. The padlock -- that's the bottom side of that square
box, which is -- that is what's mounted on the side of the door
that we were just looking at.
Q. And the padlock is what we can see hanging down?
A. Right. Yes.
Q. So this bottom face of the padlock is facing the ground?
A. Yes.
Q. All right. Let's go back, then, to our exhibit.
Now, before entering the cap magazine, did you notice
anything on the ground?
A. There were some metal shavings around -- right below where
the padlocks are.
Q. Did you notice that prior to going into or opening the door
of the magazine?
A. Yes.
Q. Now, when you opened the door of the magazine, who was
present? Just you and the manager?
A. Plant manager and myself, yeah.
Allen Radtke - Direct
Q. What did you see?
A. A lot of missing caps. Several boxes missing out of the
magazine.
Q. Let me show you Exhibit 124. And describe for us what
we're looking at here in this photograph.
A. These are boxes that the electric caps are stored in.
Q. And you said you kept -- let's just keep with the electric
caps for a moment. Could you tell by the way that the boxes
were arranged in the magazine whether there had been anyone in
there --
A. Yes.
Q. -- since you were last there on the prior Wednesday?
A. Yes.
Q. And tell us about that.
A. This is -- there were several boxes, larger cardboard-type
boxes that I would store these smaller boxes in, and they were
missing. And there was one large box basically in that area
that had a non-electric-type cap in it, and they were -- the
whole box was gone.
Q. How many boxes -- sticking with the electric ones for a
moment -- how many of the electric blasting caps were stolen,
if you know?
A. I don't remember the exact number.
Q. Can you approximate it for us?
A. Like 12, 1400.
Allen Radtke - Direct
Q. And how about the non-electric: How many of those had been
stolen?
A. Probably around 75.
Q. Now, what do you call the non-electric blasting caps that
are used there at the quarry and that were stolen?
A. There the cap is basically the same as the electric except
instead of having wires coming out it for the electricity to
set it off, it's just a hollow tube with a powder --
glycerine-type powder inside of it that's set off by a primer,
a different type of machine.
Q. Does it have a name, a brand name?
A. Primadet.
Q. And is there a certain foot length that you purchase there
at the quarry that were stolen in this time frame that we're
speaking of?
A. 60 footers. They were 60-foot long.
Q. And they come in different sizes, but the quarry purchases
60 feet?
A. Yes.
Q. Do they come with varying time delays?
A. Yes, they do.
Q. And what time delay did you have there at the quarry that
were stolen?
A. Those are No. 8's.
Q. Now, after you went to the cap machine, did you say you
Allen Radtke - Direct
went over to the powder machine next? I mean the powder
magazine next?
A. Yes.
Q. Let me ask you if you can tell us what this photograph
represents.
A. It's the inside of the powder magazine.
Q. Is that a photograph of the way the magazine looked on the
morning that you and the manager opened the door on October 3?
A. Yes.
Q. And can you tell us: Was there anything that caught your
attention when you opened the door?
A. The open box.
THE COURT: This is 122 --
MR. RYAN: Yes, your Honor.
THE COURT: -- that you're showing?
BY MR. RYAN:
Q. And why was the fact that the box was opened of importance
to you?
A. 'Cause I didn't leave it that way the last time I was in
there.
Q. Could you tell whether any of these -- what do you call
the -- what we're looking at inside the box.
A. That is a 3-by-16 Tovex stick.
Q. Could you tell whether any of these -- did you have other
sizes besides 3-by-16?
Allen Radtke - Direct
A. Yes. We had 2-by-16 in there.
Q. Could you tell whether or not any of these Tovex sausage
explosives had been stolen?
A. Yes.
Q. And how many had been stolen?
A. Six cases of them.
Q. And about how many of these 2-by-16 sausages are in a case?
A. 25.
Q. So it would be roughly -- if my math is accurate -- about
150 of these sausages had been taken?
A. Yes.
Q. All right. Now, after you looked at the cap magazine and
the powder magazine, did you go anywhere else on the quarry to
inspect to see if anything else had been taken?
A. No.
Q. Did -- at any time that day did you go inspect the ANFO
trailer?
A. No.
Q. How about on the following day, on May the -- excuse me, on
October the 4th?
A. Yes.
Q. And tell us about your inspection of the ANFO trailer.
A. It was discovered that the back doors -- which there was
two sets of doors on that trailer.
MR. TIGAR: Excuse me, your Honor. It was discovered.
Allen Radtke - Direct
I'm sure the witness has personal knowledge. I would like it
to be established before he answers.
BY MR. RYAN:
Q. Mr. Radtke, did you make this inspection, yourself?
A. No, I did not.
Q. The ANFO trailer?
A. No.
Q. Did you inspect the ANFO trailer at any time on October 3
or October 4 to see if it had been broken into?
A. No.
Q. Did you at some point in time find a lock that had been on
one of the trailers on the premises of the quarry?
A. Yes.
Q. And when did you find the lock?
A. On the 4th of October.
Q. And where did you find that lock?
A. It was on the back doors of the trailer.
Q. And did you personally observe that?
A. I wasn't the one that actually found it. I was called when
it was found unlocked.
Q. Okay. And who found it unlocked?
A. Members of another crew that were moving into the location.
Q. All right. And then they -- when they found that the lock
was on the ground, they -- or unlocked, they came and got you?
A. Yes.
Allen Radtke - Direct
Q. And then tell us what you saw when you went there and
observed the ANFO trailer.
A. The lock was in the open position, just hanging on the
doors. I looked at the bottom side of it, saw that it had been
drilled. I opened the doors. Nothing had been tampered with
or removed from that particular magazine.
Q. Now, you say it had been drilled. What do you mean by
that?
A. Like someone had taken an electric drill and a drill bit
and drilled into the lock mechanism.
Q. Do you have an electric power source there at the trailer?
A. No.
Q. And so how would they have used an electric drill to drill
out the lock?
A. Portable generator, battery-operated.
Q. A battery-operated --
A. -- drill.
Q. -- drill?
A. Yes.
Q. Now, did you talk to Sheriff Davies from the Marion County
sheriff's office on October 3 or 4?
A. Yes.
Q. And did you cooperate with the law enforcement authorities
at that time?
A. Yes.
Allen Radtke - Direct
Q. And what did you -- did you provide them the lock that
you've just described for us?
A. Yes, I did.
MR. RYAN: May I have just a moment, your Honor?
THE COURT: Yes.
MR. RYAN: Your Honor, could I have Agent Tongate
approach the witness with some demonstrative exhibits that were
admitted?
THE COURT: Did you say have admitted? Are these?
MR. RYAN: They are admitted, your Honor. Let's make
sure there is no confusion here.
THE COURT: All right.
MR. RYAN: These are Exhibits 134, which is the box
for blasting caps.
MR. TIGAR: Yes.
MR. RYAN: Exhibit 132, which is a box for Tovex.
MR. TIGAR: I'm sorry, your Honor. That's the --
MR. RYAN: 133, excuse me.
MR. TIGAR: Yeah, 133 is a box.
MR. RYAN: Yes, both of those not objected.
MR. TIGAR: Right.
THE COURT: Yes, you may have those taken to the
witness.
BY MR. RYAN:
Q. Now, if you would, Mr. Radtke, would you take Exhibit No.
Allen Radtke - Direct
133, which is the large brown box there, take it out of the
cellophane, plastic bag.
THE COURT: The agent can come and help him.
MR. RYAN: Yeah.
BY MR. RYAN:
Q. Now, Mr. Radtke, would you --
MR. RYAN: Mr. Tongate, if the Court doesn't mind,
would you stay there?
THE COURT: That's fine.
BY MR. RYAN:
Q. Would you explain to the jury what we're looking at there
with Exhibit 134 (sic).
A. This is a box top off from the 3-by-16 stick, powder sticks
that we keep on the site. It's explosive.
Q. Now, this is for the 3-by-16 size; is that correct?
A. Yes.
Q. Now, is the box that carries the 2-by-16 sausages, is it of
the identical box, coloration and markings?
A. Yes, it is.
Q. All right. Now, is there any indication on that box that
it contains an explosive material?
A. The orange diamond.
Q. Would you hold that up so the jury can see it and point it
out to them?
A. The orange diamond on the side. It's marked "explosives,
Allen Radtke - Direct
1.1D."
Q. Thank you. If you'll just hand that to Agent Tongate.
Now, if you take the -- there's a small white box
there we've marked as Exhibit 134. And could you -- hold it up
so the jury can see it and tell them what that is.
A. That's the cap box where the electric caps are kept in.
Q. And does it identify what's inside the box on the side?
A. It gives the delay, date code, and the lengths; and
"electronic detonators" is also on the end.
Q. Now, the explosives that were stolen at the quarry sometime
between September 28 and October 3, were they taken in boxes
that are similar, if not identical, to the boxes that you've
shown the jury?
A. Yes, they were.
MR. RYAN: Now, if you would, Agent Tongate, would you
hand Mr. Radtke Exhibit 126.
BY MR. RYAN:
Q. Now, would you hold that up so the jury can see it, and
tell us what that is.
A. It's the padlock that we discovered on the trailer.
Q. Now, would you turn the padlock in a manner the jury can
see it and describe what you were talking about when you said
it had been drilled out.
A. In the lock mechanism, in the center, there's a smaller
hole that's been drilled through it.
Allen Radtke - Direct
Q. Now, did you note the -- can you note for us the serial
number on that lock?
A. Yes.
Q. What is that number?
A. 10N354.
Q. Now, sometime within the last couple of months, were you
looking through your key ring and noticed a key that you didn't
realize you had?
A. Yes.
Q. And did you have a key that corresponded to that identical
serial number of that lock?
A. Yes.
Q. And what conclusion did you draw from that?
A. That I had a key for the lock -- the missing lock -- the
lock that we had found, the only lock we had found on --
Q. And did you turn that over to the FBI?
A. Yes.
Q. Let me show you what's been marked as Exhibit 1840. I'm
going to have Agent Tongate hand you what's been marked as
Exhibit 126 (sic) and ask you if you can identify that exhibit.
A. Yes.
Q. And what is that exhibit?
A. It's a key that matches the lock.
Q. And how do you know that's --
THE COURT: Excuse me, you said 126. I thought we
Allen Radtke - Direct
already did that.
MR. RYAN: Excuse me. 1840, the key.
THE COURT: It's 1840 you're looking at?
THE WITNESS: Yes.
THE COURT: All right. Thanks.
BY MR. RYAN:
Q. And how do you know that that is the key that goes to the
lock?
A. It has a matching number on it and my initials.
Q. When did you initial the key?
A. A month and a half ago, I guess it was, something like
that.
Q. At the time you turned it over to the FBI?
A. Yes.
MR. RYAN: Your Honor, we would move for the admission
of Exhibit 1840.
MR. TIGAR: That's the one I wanted to ask a question
about.
THE COURT: All right.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. Good morning, Mr. Radtke.
A. Good morning.
Q. I'm Michael Tigar. I'm one of the lawyers appointed to
help Terry Nichols.
Allen Radtke - Voir Dire
You said you found -- you noticed you had that key a
couple of months ago; is that right?
A. Yes.
Q. And when you do your job out there at the quarry, you have
a whole ring of keys; is that correct?
A. I do.
Q. And are these Master -- these are Master brand padlocks you
were using at that time; correct?
A. Yes.
Q. And does -- is the issuance of those keys restricted to
particular people?
A. Yes.
Q. And how are they restricted?
A. Just those that have a blasting permit.
Q. I see. And that would include you because it's your job to
put the stuff down the hole and make the shot; right?
A. Right.
Q. Okay. So -- and that serial number, the key that you have
there -- could I take a look at that, please.
THE COURT: You may approach, yes.
MR. TIGAR: Thank you.
I see. Okay. Thank you, sir.
BY MR. TIGAR:
Q. And that says "Master Lock Company" on it; right?
A. Right.
Allen Radtke - Voir Dire
Q. Could you see that on there?
A. Yes.
Q. So that's the key that's issued by the same company that
made the lock; right?
A. Right.
Q. That is not a key made at some local hardware store or
something like that; correct?
A. No.
MR. TIGAR: Oh. Thank you very much. We have no
problem with that. We agree it should be admitted.
THE COURT: 1840 is received.
MR. RYAN: Your Honor, I'd like to verify that Exhibit
126 had been admitted.
MR. TIGAR: Our records show that it is, your Honor,
with our consent.
THE COURT: Yes, we're all in agreement on that.
MR. RYAN: All right. Thank you.
Finally, I would ask for the admission of Exhibit 132
for demonstrative purposes only, and Mr. --
THE COURT: It's been agreed to.
MR. RYAN: That had been agreed to?
THE COURT: Yes.
MR. TIGAR: Yes.
MR. RYAN: Would you please hand that to Mr. Radtke.
DIRECT EXAMINATION CONTINUED
Allen Radtke - Direct
BY MR. RYAN:
Q. Mr. Radtke, would you hold that up to where the jury can
see it and explain to them what you're showing them.
A. This is a 2-by-16 Tovex stick, or I call it powder, that we
use in the blasting at the quarry.
THE COURT: I think it has been agreed this is inert.
MR. RYAN: It is, your Honor. I guess I should have
mentioned that. I apologize to all.
THE WITNESS: It's perfectly harmless.
MR. RYAN: It's an inert explosive.
BY MR. RYAN:
Q. Now, if you would, Mr. Radtke, show us, if you can, how the
blasting cap is attached to this explosive.
A. I just simply make a little hole or a small cut in the tube
and just insert the cap inside of it and put a half hitch
around it so that as you're going down the hole, it won't slip,
the cap won't pull out and lose the stick down the hole.
Q. Tell us again -- I think you explained it earlier, but it
might be more helpful now that we have the explosive. Once you
have the blasting cap attached to this Tovex sausage, what do
you do with it in your drilling business, the blasting
business?
A. This goes down the hole with the cap attached to, and then
I pour ANFO fertilizer on top of it and put rock cuttings on
top of that to seal the hole, to hold the explosion down
Allen Radtke - Direct
inside.
Q. Now, let me finally show you . . .
MR. RYAN: I'm sorry, your Honor.
No. 141.
BY MR. RYAN:
Q. I'm going to show you what's been marked as --
THE COURT: This hasn't been received yet.
THE COURTROOM DEPUTY: Yes, it has.
MR. RYAN: 141.
THE COURTROOM DEPUTY: 141.
THE COURT: It has not been received.
BY MR. RYAN:
Q. I would just like for you to look at Exhibit 141 and ask
you if you can identify what's contained in that exhibit.
A. Yes, I can.
Q. And is the prime -- is the item shown in that exhibit
identical to the items stolen from your quarry sometime between
September 28 and October 3, 1994?
A. Yes, it is.
MR. RYAN: The next exhibit is not in evidence,
either, Exhibit 159.
BY MR. RYAN:
Q. Again, are the items that are in Exhibit 159 that were also
in Exhibit 141 of the same brand name, length, and time delay
as what was stolen from your quarry between September 28 and
Allen Radtke - Direct
October 3?
A. Yes, they are.
Q. Let's return to Exhibit 141 for a moment.
MR. RYAN: And I would ask the Court's permission to
display this to the jury for demonstrative purposes only.
THE COURT: Is there any objection to that?
MR. TIGAR: May I voir dire?
THE COURT: Yes, you mentioned you wanted to.
MR. TIGAR: Yes.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. Hello again, Mr. Radtke.
This that you're looking at is a commercial product;
is that correct?
A. No.
Q. Oh, it's not a commercial -- when you say not a commercial
product, it's something that you buy from a company that makes
it; correct?
A. Yes, that --
Q. That's what I mean.
A. Okay.
Q. That is to say, it's manufactured by a company, and that
company sells it to your corporation; correct?
A. Yes.
Q. And you've been a blaster for a long time?
Allen Radtke - Voir Dire
A. Going on 12 years.
Q. Yes, sir. And when was this product first introduced?
A. I have no knowledge of that.
Q. Okay. How long have you been using it?
A. Roughly two, maybe three years.
Q. Okay. And your use of it is exclusively in the quarry; is
that correct?
A. Yes.
Q. All right. But do you recognize the length that's listed
on here?
A. I do.
Q. Okay. And the number -- there's a No. 8 on there?
A. Yes.
Q. And you recognize that also; correct?
A. Yes, I do.
Q. And what is that called, the delay?
A. That's the delay on it, yes.
Q. And that's how you identify it, yes?
A. And the name on it, Primadet.
Q. Primadet, okay.
MR. TIGAR: I have no objection for demonstrative
purposes, your Honor. I'll hold the rest of my questions.
THE COURT: 141 is received for demonstrative
purposes.
MR. RYAN: Thank you, your Honor.
Allen Radtke - Direct
DIRECT EXAMINATION CONTINUED
BY MR. RYAN:
Q. Mr. Radtke, I'd like for -- I think you've already looked
at this very carefully, but can you tell us whether the
Primadet displayed in Exhibit 141 is identical in terms of its
size, its length, and its time delay and its color as the
Primadet that was stolen from your quarry between September 28
and October 3, 1994?
A. Yes, it is.
MR. RYAN: That's all I have, your Honor.
THE COURT: All right. Mr. Tigar.
Will you be wanting these exhibits that the agent has
up here?
MR. TIGAR: No, your Honor, I will not -- except for
the Master padlock. If Agent Tongate will oblige us by leaving
the padlock up there, I would appreciate it.
THE COURT: Okay.
MR. TIGAR: Thank you, your Honor.
CROSS-EXAMINATION
BY MR. TIGAR:
Q. Good morning again, sir. This is my last chance. This is
my last one.
You all operate -- is that Martin Marietta that
operates that quarry?
A. Yes, it is.
Allen Radtke - Cross
Q. And Martin Marietta does not own the land, do they?
A. No.
Q. They lease that from a landowner?
A. Yes.
Q. And that's a Mr. Hett?
A. Yes.
Q. Have you ever met Mr. Hett?
A. Yes, I have.
Q. And is that a standard situation for -- that is, you have
a -- Martin Marietta has a lease with Mr. Hett?
A. Yes.
Q. And they pay him so much a ton?
A. I'm not sure about the dollars.
Q. You're not familiar with that operation?
A. No.
Q. Okay. Now, you mentioned that the -- there's a gate at the
front; is that correct?
A. Yes, there is.
Q. And that gate is locked?
A. Yes.
Q. And kept locked except in the evening hours; right?
A. Right.
Q. Now, you also drew a line on a picture showing a track or
trail back through there; correct?
A. Yes, I did.
Allen Radtke - Cross
Q. Now, in September of 1994, do you know whether or not the
entire quarry area was fenced off from the rest of Mr. Hett's
land?
A. No.
Q. You don't know, or it wasn't?
A. It was not fenced.
Q. It was not. Do you know of any provision in your lease
with Mr. Hett that has to do with fencing?
A. No, I don't.
Q. Now, your job is to -- you're a blaster; is that correct?
A. Yes.
Q. Now, are there other blasters that work at that quarry
site, or did in 1994?
A. No.
Q. And in addition to that, you mention someone who is the
plant manager; correct?
A. Yes.
Q. How many employees are there total?
A. In that crew --
Q. Or were there --
A. With the plant manager and that crew, there's ten people.
Q. Now, you talked here today about three different kinds of
things, as I understand it. One is the blasting cap; is that
correct?
A. Yes.
Allen Radtke - Cross
Q. Now, Primadet is not a blasting cap, is it?
A. It's a blasting cap, yes.
Q. Well, but it is a -- it's -- we saw those pictures.
There's a lot of orange cord there; right?
A. Right.
Q. Now, that orange cord is not a blasting cap, is it?
A. No, it's a silver -- it's the long, silver piece towards
the center of that coil.
Q. Okay. So that Primadet contains a blasting cap; correct?
A. Correct.
Q. And the purpose of the long cord there is to get the charge
to the cap; correct?
A. Right.
Q. Right?
A. Right.
Q. And how do you -- once you ignite the piece that's 60 feet
away from the cap, how long is it before whatever's happening
hits -- gets to the cap?
A. 200 milliseconds.
Q. Okay. So that's quicker than you and I can jump; right?
A. Lot quicker.
Q. Okay. So in order to make sure that it doesn't happen any
quicker than you want, what do you do?
A. That's why the time delay is in that.
Q. I see.
Allen Radtke - Cross
A. It's set -- it's manufactured that way.
Q. I see. So there is a delay there; right?
A. Right.
Q. Now, is another feature of Primadet that that orange tubing
is waterproof?
A. Right.
Q. And thus it can be used in situations where there might be
some water that the fire has to travel through before it gets
to the cap?
A. Right.
Q. Now, the second kind of thing you talked about -- oh, you
also talked about blasting caps, electric and non-electric.
That's -- they're different from the Primadet; right?
A. The Primadet is a non-electric cap.
Q. Okay. Okay. So that's what you're talking about when you
talk about the non-electric caps; right?
A. Right.
Q. And you also said you had some electric caps that went
missing; right?
A. Yes.
Q. And the next thing you talked about is that Tovex; correct?
A. Correct.
Q. Now, Tovex is a brand name; correct?
A. Yes, it is.
Q. You buy that from somebody and it comes in and it's all
Allen Radtke - Cross
receipted for; correct?
A. Yes.
Q. Now, the third thing you talked about was the ANFO;
correct?
A. Yes.
Q. Now, the ANFO trailer that you said had the lock drilled on
it, that you did not discover until the 4th of October; right?
A. Right.
Q. And that was -- that was the Tuesday?
A. Yes.
Q. Now, how is that ANFO stored in the trailer?
A. It's just stacked in -- it's in 50-pound bags that are
stacked one on top of the other.
Q. Now, that is not fertilizer; correct?
A. It is fertilizer with fuel oil mix.
Q. But already mixed?
A. Already --
Q. That is, that's not something you would buy at a
farm-supply store; correct?
A. Correct.
Q. That is something that is packaged in 50-pound bags,
premixed ammonium nitrate and fuel oil for people that want to
make blasts; correct?
A. Correct.
Q. Okay. And is that manufactured by another -- again a
Allen Radtke - Cross
company that makes it and then delivers it to your corporation
on your orders?
A. Yes.
Q. Now, you said that the -- there was no ANFO -- ammonium
nitrate/fuel oil -- mixture missing from your company; correct?
A. Correct.
Q. Now, this theft was investigated, wasn't it, sir?
A. Yes.
Q. And it was first investigated by Sheriff Davies?
A. Yes.
Q. Did you speak to him on the 3d of October?
A. Yes.
Q. Did you speak to him again on the 4th of October?
A. Yes.
Q. When you spoke to him on the 3d of October, did he take
some evidence into his custody?
A. He took a box top.
Q. Okay.
A. From the Tovex.
Q. All right. Is that all you can remember him taking?
A. Yes. Well . . .
Q. I'm not trying to have a memory contest. Did he take some
metal shavings?
A. Yes, he took some metal shavings.
Q. Okay. And those are the metal shavings that were found
Allen Radtke - Cross
where?
A. Around the cap magazine and the powder magazine.
Q. Okay. The cap magazine. Now, the cap magazine and the
powder magazine are -- those are those little sheds that we saw
pictures of; right?
A. Yes.
Q. Those appear to be on skids?
A. They are.
Q. Is that right?
A. They are.
Q. Why are they on skids?
A. So they can be moved and -- you can drag them around or
they got lifting rings to be lifted up by a loader to be lifted
and moved to another site.
Q. And since you've been working there, have you had occasion
to move those things around the quarry on different occasions?
A. In -- yes, we have.
Q. And of course every time you move them, according to the
regulations you operate under, do you have to build some kind
of berms around so that if something happens, that the fire
gets contained?
A. Yes.
Q. And thus the pictures that we saw, that have those -- looks
like gray rock berms up behind them, you know those things,
those are what's required for safety purposes; correct?
Allen Radtke - Cross
A. Yes, they are.
Q. And how high do those berms have to be?
A. It depends on the height of the building.
Q. Okay.
A. They have to come up to the eave of the buildings.
Q. All right. And by the eave, is that the roof peak or where
the -- when you say the eave?
A. The bottom edge of the roof.
Q. This is a sloped roof like I'm illustrating, it has to come
up to the bottom edge of the roof; right?
A. Yes.
Q. And to your knowledge, your company, throughout all the
years you've worked there, you obey those safety regulations,
and you build those berms; right?
A. Yes.
Q. Now, in addition, then, let's go back to our discussion
with -- your discussion with Sheriff Davies there on the 3d.
He took a Tovex box top, he took some metal shavings; correct?
A. Correct.
Q. And can you remember him taking anything else?
A. No, I can't.
Q. All right. Now, the pictures that you showed us earlier
that you identified, were those taken by Sheriff Davies that
day or by someone else?
A. I don't remember who took the pictures.
Allen Radtke - Cross
Q. Okay. But they do, of course, fairly and accurately --
they accurately represent what you saw; right?
A. Yes.
Q. Now, again the next time you saw Sheriff Davies was on the
4th; correct?
A. Yes.
Q. And he came out and looked at that drilled lock?
A. Yes.
Q. And that's the drilled lock you have in front of you?
A. Yes.
Q. Now, in addition to the drilled lock, did he take any metal
shavings that day?
A. No.
Q. When you got to the ANFO trailer, somebody told you about
it and you went there, did you see any metal shavings on the
ground?
A. Maybe just a few little pieces, but there wasn't nothing
there to really speak of. I don't recall anything --
Q. You don't recall anything major, because of course if
someone drilled it, the shavings would be pretty small; right?
A. Yes, yes.
Q. But my question is did you see anybody take those metal
shavings and, you know, scoop them up and do anything with
them?
A. I don't recall any.
Allen Radtke - Cross
Q. Okay. Now -- excuse me.
In addition to that, did -- were you -- did you ever
have an investigator on the scene from the Bureau of Tobacco,
Alcohol, and Firearms?
A. Later on that afternoon or the next day, there might have
been someone out there.
Q. Okay.
A. Exact day, I don't remember.
Q. Now, you're familiar with these regulations; right?
A. Yes.
Q. And did you understand back then that if you have a loss
like this, that there's some requirement that you notify the
ATF, which is the agency of government that has the
jurisdiction over this?
A. Right.
Q. Okay. And do you remember talking to anyone from the ATF?
A. On the telephone.
Q. Just on the telephone?
A. Yes.
Q. When was that, sir?
A. The afternoon of the 3d.
Q. Okay. And you don't remember -- do you remember seeing
them out there, any people that were identified to you as ATF
folks?
A. No.
Allen Radtke - Cross
Q. Now, Sheriff Davies, did he ever come back, then, to talk
to you after the 3d and the 4th?
A. I don't recall him, no. He may have -- I don't remember
him, no.
Q. Okay. Well, it's been a while ago. I'm not trying to,
again, get in a contest with you. Well, there did come a time
when the FBI came out; correct?
A. Correct.
Q. And they showed you a picture of a blue pickup truck?
A. Yes.
Q. And did they tell you whose pickup truck that was?
A. They asked me if I'd ever seen the truck. I said no.
Q. Yeah. And what did you say when they asked you if you'd
ever seen the truck?
A. I'd never seen the truck.
Q. You'd never seen that truck.
A. No.
Q. And you see Terry Nichols sitting over there; right?
A. Yes.
Q. You ever see him before in your life?
A. No.
Q. And in fact, the FBI showed you a picture of Mr. Nichols,
didn't they?
A. Yes.
Q. And they asked you if you'd ever seen him before, and you
Allen Radtke - Cross
said no?
A. That's correct.
Q. Now, in fact, before they showed you the picture, had you
seen his picture in the paper?
A. No.
Q. You had not?
A. No.
Q. Now, the . . . if -- back in 1994, if I were to call you up
on the phone and say, Mr. Radtke, I see you've got a quarry
over there and it's -- it's -- how many acres does that quarry
cover?
A. In the 350, 380 acres, something like that.
Q. If I were to call you up back there in 1994 and say,
Mr. Radtke, from time to time I hear some noises over there on
your quarry; would you tell me where your powder magazine is?
If I called you up, you wouldn't tell me, would you?
A. No.
Q. And because that's not something that somebody needs to
know, is it?
A. That's correct.
Q. Okay. Now, in your discussion with Sheriff Davies, Sheriff
Davies -- almost forgot his name there -- did you have a talk
with him about the people that you thought might have done
this?
A. I don't recall anything right now. I may have; but I
Allen Radtke - Cross
can't -- I can't answer that yes or no.
Q. Okay. Were you interested in giving him investigative
leads as much as you could?
A. As much as I could, yes.
Q. Understand. Now, were you present when the plant manager
was talking to Sheriff Davies?
A. I don't recall -- I don't recall that right now, either.
Q. All right. No problem. He'll be here.
Did you have some employees of the quarry that had
been disciplined in some way shortly before this episode
happened?
A. Yes, there was one.
Q. And who -- and without the name, what was that person's
position?
A. Lead man.
Q. He was a lead man. Now, what does a lead man do?
A. Second in command, you might say.
Q. Second in command to the plant manager?
A. Yes. Yes.
Q. Had that employee been demoted and transferred?
A. That particular employee I just described had been
dismissed from the company.
Q. He had been fired.
A. Right.
Q. Okay.
Allen Radtke - Cross
MR. TIGAR: May I have just a moment, your Honor.
THE COURT: Yes.
BY MR. TIGAR:
Q. Was it hunting season?
A. At the time of the theft?
Q. September 30, yeah. September 30, it was doves, wasn't it?
A. I believe so, yes.
Q. Does Mr. Hett let people on his land to hunt doves?
A. Not on the dove season, no.
Q. Not on the dove season. He does have hunters over there,
doesn't he?
A. Yes.
Q. And in fact -- well, have you ever hunted across Mr. Hett's
land?
A. No.
Q. Okay. But are you familiar with the fact that he does let
people through there on his part for various seasons; right?
A. Yes.
Q. And could you just help me out -- Are you a hunter?
A. Not really.
Q. Okay. Well, can you help me out by letting me know what
the seasons were during that period of time? It was doves
during the September period?
A. Dove season was the only bird season that would have been
open at that time.
Allen Radtke - Cross
Q. Okay. Then is there another -- is there a deer season?
A. Well, the bow season is going on at that time. And prairie
chicken season would have been open the following weekend.
Q. Okay.
A. And then the quail and pheasant season, the following
weekend after that.
Q. Okay. During the years that you've been working there, did
you ever hear of people obviously engaged in hunting over on
the adjacent land?
A. At times.
Q. Like the boom of a shotgun and the pellets scattering on
tin roofs -- been anything like that?
A. No, they're usually far enough away from us, and vice
versa.
Q. But you can hear the firearms?
A. No.
Q. You can't?
A. Not over the noise of the crushing plant, you don't hear
nothing but that.
MR. TIGAR: I understand, sir. Thank you very much.
I have nothing else.
THE COURT: Mr. Ryan, do you have anything else?
MR. RYAN: Just a couple, your Honor.
REDIRECT EXAMINATION
BY MR. RYAN:
Allen Radtke - Redirect
Q. Despite the precautions you make in building up the
limestone around the magazines, somebody or somebodies found a
way to get in that quarry between September 28 and October 3;
is that right?
A. Yes.
MR. TIGAR: Object to leading, your Honor.
THE COURT: Well --
MR. TIGAR: It's done.
THE COURT: Yeah, it's done.
BY MR. RYAN:
Q. Was that a fair statement?
A. Yes.
Q. There's might be a little confusion on this ANFO trailer I
would like to clear up. Was there more than one way to get
into the ANFO trailer?
A. Yes, there was.
Q. And the way that you tried initially after the weekend, was
that doorway -- was the lock secure on it, or how would you
describe it?
A. On the side door of the trailer, the one I always use,
normally always use, it -- the lock -- there was nothing wrong
with the lock. And I very seldom ever went to the rear door.
Q. So did you go to that ANFO trailer and use it on the 3d?
A. Yes, I did. On the side door.
Q. The side door?
Allen Radtke - Redirect
A. Yes.
Q. And the lock was there, you put your key in, and everything
worked as it should?
A. Right.
Q. And when was the first time that you had been around on the
back side where this other door was?
A. I hadn't -- I never went to that until the 4th of October.
Q. And that's when you discovered the back door was -- had the
lock that had been drilled?
A. Yes.
MR. RYAN: That's all I have, your Honor.
MR. TIGAR: I'm sorry, your Honor. That just raised
another one.
THE COURT: All right.
RECROSS-EXAMINATION
BY MR. TIGAR:
Q. Mr. Radtke, I just want to make sure: There was nothing
missing from the ANFO trailer; right?
A. Right.
Q. Okay. And you took real careful inventory and you're sure
of that?
A. Yes.
MR. TIGAR: Okay, thank you very much.
THE COURT: Now may the witness be excused?
MR. RYAN: Yes, your Honor.
THE COURT: Are we in agreement?
MR. TIGAR: Yes, your Honor.
THE COURT: You may step down. You're excused.
We'll take our recess at this time, members of the
jury. We'll be taking a 20-minute recess.
I remind you we'll be going till 1:00, so you may
during this recess want to use -- I think we provided some
snack material and that sort of thing. Just fortify yourselves
for the next couple of hours after the recess, since we'll go
forward with the testimony.
And of course, please, during this, as all other
recesses, avoid discussion of the case or anything about it
among yourselves and with all other persons and continue to
recognize the need to withhold any opinions in your own minds
until you've heard it all. So you're now excused, 20 minutes.
(Jury out at 10:44 a.m.)
THE COURT: We'll be in recess.
(Recess at 10:45 a.m.)
* * * * *
INDEX
WITNESSES
Mary Jasnowski
Direct Examination Continued by Mr. Mearns 7467
Cross-examination by Mr. Tigar
Redirect Examination by Mr. Mearns
Allen Radtke
Direct Examination by Mr. Ryan
Voir Dire Examination by Mr. Tigar
Direct Examination Continued by Mr. Ryan 7547
Voir Dire Examination by Mr. Tigar
Direct Examination Continued by Mr. Ryan 7551
Cross-examination by Mr. Tigar
Redirect Examination by Mr. Ryan
Recross-examination by Mr. Tigar
PLAINTIFF'S EXHIBITS
Exhibit Offered Received Refused Reserved Withdrawn
117 7522 7522
118
119
120
121
122
23
PLAINTIFF'S EXHIBITS (continued)
Exhibit Offered Received Refused Reserved Withdrawn
124
117-124
126 7524 7524
128 7523 7524
131
131-135
132
133
134
141
141 7549 7550
159
1767 7468 7468
1769 7469 7469
1770 7468 7469
1771 7469 7469
1772 7469 7469
1773 7469 7469
1774 7469 7470
1775 7470 7470
1776 7470 7470
1777 7470 7470
1778 7468 7468
PLAINTIFF'S EXHIBITS (continued)
Exhibit Offered Received Refused Reserved Withdrawn
1840
1840 7544 7546
* * * * *
REPORTER'S CERTIFICATE
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter. Dated
at Denver, Colorado, this 7th day of November, 1997.
_______________________________
Kara Spitler
