The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Monday, November 24, 1997 (afternoon)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TERRY LYNN NICHOLS,
Defendant.
REPORTER'S TRANSCRIPT
(Trial to Jury: Volume 89)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 1:35 p.m., on the 24th 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
(Reconvened at 1:35 p.m.)
THE COURT: Be seated, please.
Ready?
MR. MACKEY: Yes, your Honor.
THE COURT: Okay.
(Jury in at 1:35 p.m.)
THE COURT: All right. Next, please.
MR. MACKEY: United States will call Alvin Berry.
THE COURT: Thank you. Please come in and be sworn.
(Alvin Berry 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: Alvin Ernest Berry, B-E-R-R-Y.
THE COURTROOM DEPUTY: Thank you.
MS. WILKINSON: Thank you.
DIRECT EXAMINATION
BY MS. WILKINSON:
Q. Good afternoon, Mr. Berry. How are you?
A. Fine.
Q. Could you tell the jury where you live.
A. I now live in La Junta, Colorado.
Q. How long have you lived in La Junta?
A. Approximately about the last 30, 35 days.
Q. Did you get a new job?
A. New job, yes.
Q. Where are you working in La Junta?
A. I work for Wal-Mart Stores, Incorporated.
Q. What is your job there at Wal-Mart?
A. Store manager.
Q. And had you been working for Wal-Mart prior to moving to
the store in La Junta?
A. Yes, I had.
Q. Where had you been working prior to your move to La Junta?
A. I was in Arkansas City, Kansas.
Q. And where is Arkansas City, Kansas?
A. Arkansas City, Kansas, is the lower end of Kansas. Splits
Alvin Berry - Direct
the border of Oklahoma or right off the Highway 77.
Q. Okay. Let me show you Government's Exhibit 1999 that's
already in evidence. Do you see that black pen up there that's
in front of you attached to a wire?
A. Correct.
Q. Could you show the jury on this map, circle where Arkansas
City, Kansas, is.
You've got to go down underneath and actually write on
the screen there.
There you go. Okay. Is that that little dot right
next door where you made your mark?
A. Correct.
Q. And can you tell the jury how far it is from Arkansas City,
Kansas, to Herington, Kansas?
A. Approximately about 170, 180 miles.
Q. How long would it take to drive from Arkansas City to
Herington, assuming you're following the speed limits?
A. Approximately about three hours.
Q. Now, when did you first start working at the Wal-Mart in
Arkansas City, Kansas?
A. I was there in the middle of April.
Q. Of what year?
A. Of '95.
Q. And you stayed there until you moved to La Junta?
A. Correct.
Alvin Berry - Direct
Q. What was your job or your title at Wal-Mart in Arkansas
City?
A. I was store manager.
Q. Same thing that you're doing at La Junta?
A. Correct.
Q. What's the difference between your store in Arkansas City
and your store in La Junta?
A. About another 30,000 square feet.
Q. A lot more merchandise?
A. A lot more merchandise.
Q. Now, as the store manager of Arkansas City Wal-Mart, was
one of your responsibilities to maintain records for the
Wal-Mart?
A. Yes. That's correct.
Q. Did you maintain records of customer receipts?
A. Yes.
Q. Now, at some point, were you contacted by the FBI and shown
a copy of an Arkansas City Wal-Mart receipt?
A. Yes, I was.
Q. Let me show you Government's Exhibit 265B that's already in
evidence. Do you recognize that?
A. Yes.
Q. Could you take your pen that you have up there and click
the side and that'll erase the marks that you made on there.
Now, do you recognize this receipt?
Alvin Berry - Direct
A. Yes, I do.
Q. Is it a receipt from your store in Arkansas City?
A. Yes, it is.
Q. Okay. Let's start at the top, if we could. Now, right
there, it says "Wal-Mart"; is that right?
A. Correct.
Q. And there's a number there that says "Store 0978"?
A. Correct.
Q. What does that indicate?
A. That is the individual store number --
Q. Which store --
A. -- of the Arkansas City Wal-Mart store.
Q. Okay. And the next line says what?
A. Arkansas City, Kansas, has the store No. 0978. OP is the
operator. 202. T is terminal. Terminal No. 7. And
transaction 07269.
Q. When you say "operator," what do you mean?
A. That was the actual assigned cashier. Each cashier has an
assigned number.
Q. So you can tell from looking at this receipt who the person
was who actually checked the customer out that day?
A. That's correct.
Q. Okay. And the next number you said indicates which
register they used?
A. Correct.
Alvin Berry - Direct
Q. Is that right? Now, can you read for the jury the next few
entries of what this customer purchased.
A. Pennzoil 10W30, Pennzoil 30 weight, Pennzoil 30 weight,
Pennzoil 30 weight once again, and an oil filter.
Q. There is some writing as you can see on -- around the oil
filter, but can you tell the jury the price of this oil filter?
Can you read those numbers?
A. I think it says 234 from what I can see here.
Q. Is it hard to tell where that writing is there?
A. Yes, it is.
Q. Can you look in your file in front of you and see if you
have a copy of Government Exhibit 265B. That is another copy
of the receipt.
A. Yes.
Q. Is it any better? Can you tell the price of the oil filter
there, or is it still hard to read?
A. It's still hard to read, but it's -- it looks like 234. It
ends on a four, and the dollar amount is $2.
Q. Now, on the next line here, you have a subtotal; is that
right?
A. Correct.
Q. Sales tax?
A. Correct.
Q. The total?
A. Correct.
Alvin Berry - Direct
Q. And the next line, what does that indicate?
A. Cash tender.
Q. What does that mean?
A. That means that is the dollar amount that was given to the
cashier that was typed into the -- the register.
Q. Does that -- since it says "cash," does that mean the
customer paid with cash?
A. Correct.
Q. And the "change due" is self-explanatory; is that right?
A. Correct.
Q. Okay. Now, let's focus, if we could, for a moment on the
bottom of this receipt. And after "change due," tell the jury
what they are seeing down there at the bottom.
A. It has a transaction number, "Always the low price at
Wal-Mart," date, time, sale.
Q. Tell us what the date of this receipt is.
A. 04-13-95. That's at 17:42:01.
Q. 4-13-95 would be April 13, 1995; is that right?
A. Correct.
Q. And what does this time indicate, 17:42?
A. It's 5:42:01.
Q. That would be 5:42 p.m. on April 13?
A. Correct.
Q. Now, do you maintain these times and dates at your local
Wal-Mart in Arkansas City or are they maintained by a computer
Alvin Berry - Direct
system?
A. They are maintained by a computer system.
Q. And do you rely on these dates and times to keep your
records?
A. Yes, we do.
Q. And do you have any reason to believe that these times and
dates are not accurate?
A. They are accurate.
Q. Okay. Now, let's go back to the full receipt, if we could.
See up at the very top of the receipt that -- at the -- above
those initials there, do you see that, the dark corner?
A. Correct.
Q. Have you looked at the original Government's Exhibit 265
before coming to court today?
A. Yes.
Q. Do you have it up there in your folder?
A. Yes, I do.
Q. Could you take it out of the plastic sheet, please. I
think, Mr. Berry, you're looking at the copy. Do you have the
original, which is the darkened copy with the sticker on it?
A. 265A?
Q. 265, it should be. Is there a sticker at the top of 265?
A. Yes, it is.
Q. And can you tell -- hold that up for the jury, could you,
and show them. What color is the sticker?
Alvin Berry - Direct
A. Pink.
Q. Is it at the top of the receipt?
A. Yes, it is.
Q. And have you reviewed that before coming to court to
determine the markings on that sticker?
A. Yes.
Q. Let me show you what's not yet in evidence which is
Government's Exhibit 1832. Do you recognize that?
A. Yes, I do.
Q. And does that show the sticker unfolded and set out above
the receipt?
A. Yes, it does.
Q. And would that assist you in explaining to the jury what
the markings are on the sticker on the April 13 Wal-Mart
receipt?
A. Yes.
MS. WILKINSON: Your Honor, we'd offer Government's
Exhibit 1832 for demonstrative purposes.
MR. TIGAR: May I inquire, your Honor?
THE COURT: Yes.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. That -- the sticker parts -- hello. My name is Michael
Tigar. I'm one of the lawyers appointed to help Terry Nichols.
Excuse me.
Alvin Berry - Voir Dire
A. I thought.
Q. The -- that sticker that you have up there, that is not a
record from your store, is it, sir?
A. No, it's not, the sticker itself.
Q. The sticker itself. The -- the little -- the register
receipt we've just talked through with the prosecutor, that is
from your store; correct?
A. Correct.
Q. But that sticker is -- that's from some other Wal-Mart;
right?
A. Correct.
Q. All right. And do you know of your own personal knowledge
what other Wal-Mart that's from?
A. From looking at the sticker, it shows that it's from Store
No. 35.
Q. Okay. And that -- how far is that from your store?
A. Approximately 180 -- about 180 miles.
MR. TIGAR: We object to this, your Honor. It's not
his record.
THE COURT: I don't understand how the witness can
testify to it.
MS. WILKINSON: I believe, your Honor, Wal-Mart uses
these store designator numbers, and he knows the Wal-Mart
policy for putting this sticker on.
THE COURT: I haven't heard any of that.
Alvin Berry - Voir Dire
MS. WILKINSON: Okay.
DIRECT EXAMINATION CONTINUED
BY MS. WILKINSON:
Q. Mr. Berry, are you familiar with the procedures that
Wal-Mart uses when customers bring merchandise back for return?
A. Yes, I am.
Q. And does Wal-Mart permit customers to return merchandise
they purchased at one store -- permit them to return it to
another store?
A. Yes, we do.
Q. Does it matter which store you go to to return the
merchandise?
A. Doesn't matter at all.
Q. What do you need to return the merchandise?
A. All you need is the actual receipt.
Q. Now, if a customer comes to your store, any Wal-Mart store
to return the merchandise and they enter the door, what's the
first thing that happens to them?
A. There is a people greeter there that has access to these
pink stickers, and they actually put the pink sticker on the
merchandise.
Q. And you see -- say a people greeter. Do you mean a person?
A. Person.
Q. And that person, what do they do?
A. They have a little gun, what we call a marking gun that
Alvin Berry - Direct
holds these pink stickers that has the time and the dates, the
store number, identical to what's here; and they place that on
the merchandise as they enter the store.
Q. And is that Wal-Mart policy to do that for a return?
A. Yes, it is.
Q. Why would someone -- or why would you as a Wal-Mart
employee mark a receipt as the customer is entering the store
for return?
A. Well, that lets us know that the purchase actually came
through the front of the store and didn't surface somewhere
from inside the store.
Q. So you know the person had purchased it previously?
A. Correct.
Q. And do you use those stickers every time someone comes into
a store to make a return or an exchange?
A. Yes, we do.
MS. WILKINSON: Your Honor, based on that, we would
offer 1832 as a demonstrative exhibit.
THE COURT: Yes.
MR. TIGAR: May I inquire further? I don't want to be
cranky.
THE COURT: Yes. Of course.
MR. TIGAR: Thank you.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Alvin Berry - Voir Dire
Q. Sir, the -- the refund procedure also requires the person
to go get some initials; isn't that right? In other words, if
you're actually going to be eligible to get your money back, in
addition to getting a little ticket, you've got to get some
initials; correct?
A. That's after they -- or during the process of -- process of
the refund.
Q. Okay. And you see on the exhibit that you were shown
initially, the copy of your receipt, you saw some circling and
some initials; do you remember that?
A. Yes, right here.
Q. That was not done at your store, was it, sir?
A. No, it wasn't.
Q. And you have no personal knowledge of the transaction that
involved the placing of the initials and the putting on of the
sticker; is that right?
A. That's correct.
MR. TIGAR: We object, your Honor.
THE COURT: Sustained.
DIRECT EXAMINATION CONTINUED
BY MS. WILKINSON:
Q. Mr. Berry, do you know the store number or the Wal-Mart
store number -- store that belongs to Store 35?
A. Yes, I do.
Q. What store is that?
Alvin Berry - Direct
A. It's in Manhattan, Kansas.
Q. And is that north or south of you in Arkansas City?
A. North.
Q. Now, I want to show you an exhibit that's already in
evidence, Government's Exhibit 1988, on page 15. If you can
look on your computer screen. 1888. Excuse me. Do you see
that?
A. Yes.
Q. And do you see that phone call that's highlighted that
shows a phone call from Mr. Nichols' residence at 4:33 on
April 13?
A. Yes.
Q. To Quarton on that same date?
A. Yes.
Q. You told us, I believe, that the receipt that was generated
at your store in Arkansas was generated at 5:42 p.m.; is that
right?
A. That's correct.
Q. If someone were on the phone in Herington, Kansas, at
4:33 p.m., could they have driven to your Wal-Mart in Arkansas
City and made that purchase at 5:42 p.m.?
A. No.
Q. Pardon?
A. No.
MS. WILKINSON: Okay. No further questions, your
Alvin Berry - Direct
Honor.
THE COURT: Mr. Tigar, do you have some questions?
MR. TIGAR: One or two.
CROSS-EXAMINATION
BY MR. TIGAR:
Q. I'd like to put up on here, sir, Government Exhibit 265B.
That's the copy of the receipt. You recognize that?
A. Yes, I do.
Q. Now, the 4-13-95 and the 17:42:01, that is set from --
that's set by computers over at Wal-Mart Central, isn't it?
A. Correct.
Q. Okay. And where is Wal-Mart Central?
A. That's in Bentonville, Arkansas.
Q. Okay. And you don't independently verify that, do you,
sir?
A. No, I don't.
Q. Okay. But you -- you count on it for record-keeping
purposes; correct?
A. Yes, we do.
Q. But the actual time is set by somebody over there in -- in
the Arkansas store; correct?
A. That's correct.
Q. All right. Now, this receipt reflects that the customer
purchased these various items. Now, do you have a scanner at
your checkout positions there at your store?
Alvin Berry - Cross
A. Yes, we do.
Q. So what we're seeing here, these numbers, these are the
numbers that the -- the -- that are gotten by the -- I don't
know how to say this -- that -- what happens when they blip it,
or what do they do there?
A. When you scan it.
Q. Scan it. It makes that beep noise and then -- and then it
reads out; is that correct?
A. That's correct.
Q. So -- and the scanner -- so that you can tell, for example,
this oil filter, that's absolutely unique to all of the oil
filters there; right? I mean, there's only one kind of oil
filter that matches that scan code; is that correct?
A. That's correct.
Q. Okay. And similarly, with this oil, like Pennzoil 10W30,
has a different scan than the regular Pennzoil 30?
A. That's correct.
Q. So if we were to look at your records, we could determine
exactly what product -- the full description of each product
that's described here; correct? Using these codes?
A. Correct.
MR. TIGAR: Thank you, very much. I have no further
questions.
MS. WILKINSON: No further questions, your Honor.
This witness is excused.
THE COURT: Agree to excuse the witness?
MR. TIGAR: Yes, your Honor.
THE COURT: You may step down. You're excused.
Next, please.
MR. MACKEY: United States calls David Kordyak.
(David Kordyak 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: David J. Kordyak, spelled K-O-R-D-Y-A-K.
THE COURTROOM DEPUTY: Thank you.
MS. WILKINSON: We just need a moment, your Honor, to
get these exhibits back and give them to Mr. Kordyak.
THE COURT: All right.
DIRECT EXAMINATION
BY MS. WILKINSON:
Q. Mr. Kordyak, where do you live?
A. I live at Manhattan, Kansas.
Q. How long have you lived in Manhattan, Kansas?
A. For four years.
Q. Are you married?
A. Yes, ma'am.
Q. Do you have children?
A. Yes, ma'am.
Q. And what do you do for work in Manhattan?
David Kordyak - Direct
A. I work at Wal-Mart.
Q. How long have you worked at Wal-Mart?
A. About 3 1/2 years.
Q. Where is your store located?
A. It's located at 628 Tuttle Creek Boulevard, Manhattan.
Q. Are there any other Wal-Marts in Manhattan, Kansas?
A. No, ma'am.
Q. What's the closest Wal-Mart to you?
A. Junction City.
Q. How far is Junction City from the Wal-Mart in Manhattan,
Kansas?
A. 30 miles, about.
Q. Now, how long have you been there at the Wal-Mart in
Manhattan?
A. About 3 1/2 years.
Q. What do you do for them there?
A. I'm a PI specialist. Sales floor clerk.
Q. Do you work in a certain section?
A. Yes, ma'am.
Q. Which section do you work in?
A. I work in the automotive section.
Q. Were you working in the automotive section back in April of
1995?
A. Yes, ma'am, I was.
Q. And based on your work in the automotive section, are you
David Kordyak - Direct
familiar with the oil filters that are sold by Wal-Mart?
A. Yes, ma'am, I am.
Q. And are you familiar with the oil filters that were sold by
Wal-Mart back in April of 1995?
A. Yes, ma'am, I am.
Q. Could we talk for a moment about the return procedures that
you use in Wal-Mart in Manhattan. Is anyone allowed to return
Wal-Mart items to any store?
A. Yes, ma'am.
Q. Does it matter in which store you purchased the item?
A. No, ma'am, it doesn't.
Q. What do you need to return an item to the Manhattan
Wal-Mart?
A. All you need is the item and the receipt.
Q. And if someone comes in the door with an item for a return,
what do you do?
A. They are going to come in the door, the door greeter is
going to -- excuse me -- is going to greet them. At that
point, he'll put a pink sticker on the -- on the item or on the
receipt.
Q. Does that pink sticker indicate which store the customer is
entering?
A. Yes, ma'am, it does.
Q. What is the store code for your store, Manhattan?
A. My store code is 0035.
David Kordyak - Direct
Q. And that indicates the Manhattan Wal-Mart?
A. Yes, ma'am, it does.
Q. What else would be on that sticker?
A. The date.
Q. And that would be the date the customer is actually
entering the store with the item for return?
A. Yes, ma'am.
Q. Once the customer receives that sticker on his receipt, can
he come back to your section, the automotive section to return
an item?
A. Yes, ma'am, he can.
Q. And what would you do when that customer approached you to
return an item?
A. At that point, I'll -- I'll ask the customer if he's got a
receipt, if they will show me the receipt. I'll inspect the
item and make sure that the item is the -- that the item he
wants to return is on the receipt by comparing the UPC codes.
At that point, I'll circle the -- the proper UPC code and item,
and I'll put my initials at the top and send them -- and I'll
keep the item and send them back up front to the service desk
where they can get their refund.
Q. Tell us what a UPC code is.
A. The UPC code is the -- is the number on the actual --
actual piece of -- of whatever they are bringing back like on
an oil filter, there's an actual number on that that identifies
David Kordyak - Direct
that specific -- that specific -- specific item in the system.
And it can -- it'll only be for that specific item.
Q. Well, if we use the oil filter for an example, would you
have one number for a certain size oil filter?
A. Yes, ma'am.
Q. And then would you have another UPC number for a different
size oil filter?
A. Yes, ma'am, you would.
Q. So if you read the receipt and you read the UPC number,
could you tell what item had been returned to you?
A. Yes, ma'am.
Q. Now, once you circled that receipt and initialed it, what
do you do with the item the customer is trying to return?
A. I will keep the item back there in my area.
Q. And what do you do with the receipt?
A. I give it back to the customer.
Q. You don't give them their cash at that time?
A. No, ma'am. I'm not allowed to do refunds back in my
register.
Q. Now, let me show you Government's Exhibit 265B, which is
already in evidence. Do you recognize that receipt?
A. Yes, ma'am, I do.
Q. Do you recognize the handwriting on there?
A. Yes, ma'am, I do.
Q. What handwriting do you recognize?
David Kordyak - Direct
A. The handwriting here at the top.
Q. Is that your handwriting?
A. Yes, ma'am, it is.
Q. Are those supposed to be your initials?
A. Yes, ma'am, it is.
Q. What are your initials?
A. DK.
Q. Okay. And do you recognize any other handwriting on there?
A. Yes, ma'am, I do.
Q. Could you circle that for us.
Now, sir, could you go down to the bottom and circle
the date of this purchase, the original purchase.
Is that April 13, 1995?
A. Yes, ma'am, it is.
Q. Before coming to court today, did you examine this receipt?
A. Yes, ma'am, I did.
Q. And did you examine the sticker that's at the top?
A. Yes, ma'am, I did.
Q. And did you determine that's a record from your store --
your Wal-Mart store in Manhattan, Kansas?
A. Yes, ma'am, I did.
Q. How did you determine that?
A. By looking at the receipt, it shows that it has my store
number on it above the date of the receipt.
Q. All right. Let me show you what's not in evidence yet,
David Kordyak - Direct
Government's Exhibit 1832. Do you recognize that?
A. Yes, ma'am, I do.
Q. And does that show the sticker that you've just referred to
unfolded with all the information present?
A. Yes, ma'am, it does.
MS. WILKINSON: Your Honor, we'd offer Government's
Exhibit 1832 for demonstrative purposes.
MR. TIGAR: No objection, your Honor.
THE COURT: All right. It's received for
demonstrative purposes and may be so used.
BY MS. WILKINSON:
Q. Sir, could you click the side of your pen to erase those
marks that you had on there previously.
Now, can you circle the sticker as it's unfolded.
On the top there, we see 0035. What does that
indicate?
A. That indicates it's a Wal-Mart Store 35.
Q. And what does 4-15-95 indicate?
A. That indicates the date that the receipt was brought in
through the front doors.
Q. Okay. Now, does this indicate with your initials that you
received this item, the oil filter that you circled -- circled
for return on April 15, 1995?
A. Yes, ma'am, it does.
Q. Do you have any recollection as to who it was who actually
David Kordyak - Direct
presented the oil filter to you that day?
A. No, ma'am, I do not.
Q. Now, let's take a look, if we could zoom back in on the
receipt there. Do you see -- that's the oil filter that you
circled; is that right?
A. Yes, ma'am.
Q. Could you erase your pen markings again.
A. Yes, ma'am.
Q. And could you underline the UPC code.
And read it into the record for the jury, please.
A. UPC code is 910038089.
Q. And have you reviewed your UPC codes before coming to court
today?
A. Yes, ma'am, I have.
MS. WILKINSON: And, your Honor, I'd offer 2007 for
demonstrative purposes.
MR. TIGAR: No objection, your Honor.
THE COURT: All right. It's received for that
purpose. And you may hand it to the witness.
MS. WILKINSON: Thank you.
BY MS. WILKINSON:
Q. Sir, I'm handing you 2007, Government's exhibit. Can you
tell the jury what that is?
A. This is a Fram PH3387A oil filter.
Q. And is there a UP -- did you sell that type of oil filter
David Kordyak - Direct
in your Manhattan Wal-Mart in April of 1995?
A. Yes, ma'am, I did.
Q. Was that oil filter available in other Wal-Marts in 1995?
A. Yes, ma'am, it was.
Q. Okay. And can you compare the UPC number on the bottom of
Government's Exhibit 2007 with the UPC number on this receipt.
A. Yes, ma'am. UPC is 910038089.
Q. So would the exhibit you have there, Government's Exhibit
2007, be the exact type of oil filter that was returned to you
on April 15, 1995?
A. Yes, ma'am, it would.
Q. Tell the jury what type of oil filter that is.
A. This is a Fram oil filter PH3387A.
Q. And what do all those numbers mean? Is that the size of
the oil filter?
A. PH3387A just -- it demonstrates -- it's the way that Fram
shows which vehicle it fits. It characterizes it in that way.
Q. Before coming to court today, did you review the -- the
Allied Signal -- excuse me -- Allied Signal Fram filter catalog
for 1995?
A. Yes, ma'am, I did.
Q. And did you have that available in April of 1995 in the
automotive section?
A. Yes, ma'am, I did.
Q. And have you determined whether that oil filter would fit
David Kordyak - Direct
certain vehicles?
A. Yes, ma'am, I did.
Q. Okay. Let me show you what's already in evidence,
Government's Exhibit 267, which is an application for title by
Mr. Timothy McVeigh. Do you see that?
MS. WILKINSON: I'm sorry. Hold on one second, your
Honor.
Your Honor, I thought we offered it through
Mr. Manning. But if we didn't, the witness can just refer to
it. I don't know if there's any objection.
MR. TIGAR: Well, your Honor, if -- may I confer with
counsel?
THE COURT: Yes.
MR. TIGAR: Because -- I don't think there's a problem
here.
Okay.
MS. WILKINSON: We're set, your Honor. We're going to
offer two exhibits. We've done the trade. We're going to
offer 627, and we're going to also offer the Fram catalog.
BY MS. WILKINSON:
Q. Mr. Kordyak, can you pull that out of your --
THE COURT: Wait a minute. I thought you said 267.
Now you're saying a different number.
MS. WILKINSON: I am saying 267. Maybe I misspoke. I
apologize.
David Kordyak - Direct
MR. TIGAR: They will introduce that and the -- and
also this Fram catalog, which I don't know if it has a number
yet.
MS. WILKINSON: It does.
BY MS. WILKINSON:
Q. Mr. Kordyak, could you pull out the Fram catalog. Do you
see the Government's exhibit sticker there?
A. Yes, ma'am.
Q. Is it 2004?
A. Yes, ma'am, it is.
MS. WILKINSON: We'd offer both of those exhibits,
your Honor.
MR. TIGAR: No objection, your Honor.
THE COURT: They are received.
BY MS. WILKINSON:
Q. Now, sir, let's take a look at Mr. McVeigh's certification
for title. Have you reviewed this before coming to court?
A. Yes, ma'am, I have.
Q. And have you compared it to the Fram catalog that's in
front of you?
A. Yes, ma'am, I have.
Q. And would that oil filter have fit Mr. McVeigh's Pontiac
J2000?
A. Yes, ma'am, it would.
Q. Now, have you also compared that oil filter or checked that
David Kordyak - Direct
oil filter to see if it would fit other vehicles?
A. Yes, ma'am, I have.
Q. Let me let you look at Government's Exhibit 1857, which is
already in evidence.
See that? I'm going to take you to page 2. See those
highlighted portions?
A. Yes, ma'am.
Q. And that says '84 GMC; is that right?
A. Yes, ma'am.
Q. And down at the bottom, it says PH13 Fram oil filter?
A. Yes, ma'am.
Q. Now, would the oil filter you have in front of you, which
is a PH3387A -- would that fit an '84 GMC?
A. No, ma'am, it will not.
Q. And what type of oil filter would fit an '84 GMC pickup
truck?
A. A PH13 Fram oil filter.
Q. Now, did you also determine whether this PH3387A, the oil
filter you have in front of you, would have fit Mr. McVeigh's
Mercury Marquis?
A. I determined it would not fit that.
Q. So the only one it would fit would be the Pontiac J2000
station wagon; is that right?
A. That is correct.
Q. Now, let's take a look back at the receipt, if we could,
David Kordyak - Direct
265B. And then look at the enlargement of the sticker there,
Government's Exhibit 1832. Do you see that?
A. Yes, ma'am.
Q. That tells you the day the item is returned; is that right?
A. Yes, ma'am, it does.
Q. And your initials show that you were the one that received
it?
A. Yes, ma'am.
Q. Did you indicate anywhere on there what time the customer
returned that to you?
A. No, ma'am, I did not.
Q. Okay. And that's not Wal-Mart policy, is it, to write down
the time?
A. No, ma'am.
Q. Now, let me show you Government's Exhibit 2000, which is
recovered from Mr. Nichols' house. Do you recognize that?
A. Yes, ma'am.
Q. Is that a record from your Manhattan Wal-Mart?
A. Yes, ma'am, it is.
Q. Okay. And let's take a look, if we could, down there at
the bottom. Do you see that?
A. Yes, ma'am, I do.
Q. When was this purchase made at Wal-Mart?
A. It was made April 15 of 1995.
Q. And what time was this purchase made?
David Kordyak - Direct
A. At 2:40 in the afternoon.
Q. On April 15?
A. Yes, ma'am.
Q. Sir, were you working at 2:40 on April 18 -- April 15,
1995?
A. Yes, ma'am, I was.
MS. WILKINSON: No further questions, your Honor.
THE COURT: Mr. Tigar?
MR. TIGAR: Yes, your Honor.
May I approach, your Honor, to get the exhibit?
THE COURT: Yes.
MR. TIGAR: Thanks.
CROSS-EXAMINATION
BY MR. TIGAR:
Q. Hi.
A. How are you doing?
Q. May I borrow your Fram catalog there?
A. Yes, sir.
Q. Thank you.
Hello, Mr. Kordyak. My name is Michael Tigar. I'm
one of the lawyers appointed to help Terry Nichols in this
case.
How long have you worked at the automotive counter
there --
A. 3 1/2 years --
David Kordyak - Cross
Q. -- at Wal-Mart?
A. -- approximately.
Q. 3 1/2 years?
A. Yeah.
Q. So you're familiar with how the oil filter numbering system
works; is that correct?
A. Yes, ma'am -- yes, sir. Sorry.
Q. And if -- are you a little nervous?
A. Yes, sir.
Q. Don't worry about it. I'm going to ask you about oil
filters.
A. Okay.
Q. Okay. All right. Now, if I came up to your store in April
of 1995 and said, "Hello, there. I have a -- a GMC Jimmy
pickup with a 6-cylinder 2.8-liter engine," what kind of oil
filter would you sell me?
A. I would -- I would refer to the book and look it up.
Q. Right. So if I asked -- if I came in and said, "I have a
1984 GMC Jimmy pickup truck with a 2.8-liter engine," what kind
of oil filter would you sell me?
A. You said it was a 6-cylinder; correct?
Q. Yes, sir. It's a -- double-check what kind of car I'm
telling you. It's a 6-cylinder, 2.8-liter.
A. Okay. Is it two-wheel-drive or four-wheel-drive, sir?
Q. Let's start with the two-wheel-drive.
David Kordyak - Cross
A. Okay. A two-wheel-drive, I would say PH3980 or PH3535 oil
filter.
Q. All right. Now, how about a -- let's see. How about the
4-cylinder, 2.0-liter engine, 1984 S15 Jimmy?
A. I would sell you a PH8387A, sir.
Q. For my 1984 GMC, you'd sell me a PH3387?
A. With a 2.0 --
Q. With 2.0-liter?
A. With 2.0-liter.
Q. That's the one you have in front of you; right?
A. Yes, sir.
Q. Now, in your oil filter book there, do you have a list of
the number of different kinds of models of cars that take a
3387A, PH3387A?
A. I don't have a number that tells me how many different
vehicles it fits, no.
Q. Okay. Well, let's take another one. Suppose -- how about
a -- oh, an Isuzu pickup, 1991, 6, 3.1-liter engine. What kind
of oil filter would that take?
A. PH3387A, sir.
Q. The same one you have up there; right?
A. Yes, sir.
Q. So I -- now I get them for the GMC Jimmy. You got an
Isuzu. I'm going to try one more here. How about a -- a Jeep
Cherokee J series pickup, 1986 model, 4-cylinder, 2.5-liter.
David Kordyak - Cross
A. You said 1986; correct?
Q. Lost my place. Just a minute here.
A. I'm sorry.
Q. Don't worry -- no. It's -- it's my fault. J series.
1986, yes, sir. The 4-cylinder.
A. It would be PH3387A.
Q. Same one you have there; right?
A. Yes, sir.
Q. I'll ask you one more here. How about a Wagoneer
6-cylinder, 2.8-liter, 1984 to '86?
A. It would be a PH3387A, also.
Q. So when you told the prosecutor that the only vehicle that
this filter would fit, what you meant was it was the only one
of the three that the prosecutor mentioned; correct?
A. Yes, sir.
Q. In fact, the way Fram makes those oil filters is that they
make them and any given model of filter might fit a whole bunch
of cars; right?
A. Yes, sir.
Q. And with that book that's now in evidence, people could go
through there and look and see all the different products that
that would fit; correct?
A. Yes, sir.
Q. And they do it the same way you did; right?
A. Yes, sir.
David Kordyak - Cross
Q. But just in our review, we discovered that it fit an Isuzu
product, GMC product, and a Jeep product -- correct -- which is
American Motors; right?
A. Yes, sir.
Q. Three different manufacturers?
A. Yes, sir.
Q. Okay. Now, it is clear, however, that for the GMC 1984
pickup with a 6.2-liter diesel engine, that takes a different
filter; correct?
A. Yes, sir, it does.
Q. And that's because if the customer -- customer has to
specify when they come in whether their engine in their vehicle
is gasoline or diesel; right?
A. Yes, sir.
Q. And that's -- is that because the -- a diesel -- the oil
filtration system in a diesel has slightly different
characteristics than in a gasoline-powered automobile?
A. Yes, sir, it does.
Q. In fact, you've got to swap out the oil more often and so
on?
A. Uh-huh.
Q. That's because diesel -- oil in a diesel gets dirty
quicker?
A. Yes, sir.
Q. Now, you looked at this receipt here, Government Exhibit
David Kordyak - Cross
1832, for demonstrative purposes. You see it says 0035.
That's your store; right?
A. Yes, sir.
Q. And then it says 4-15-95; right?
A. Yes, sir.
Q. Okay. Now, when I come in your store with a product that I
want to return, I -- I see the greeter in front; right?
A. Yes, sir.
Q. And the greeter has a little plastic gun; right?
A. Yes, sir.
Q. And the plastic gun spits the little labels; correct?
A. Yes, sir, it does.
Q. And that way, when you have merchandise that you bring into
the store that's previously purchased, you -- you want to get
it labeled so that you're not -- somebody doesn't think you
took it and didn't pay for it; right?
A. Yes, sir.
Q. Okay. Now, that little gun, how do those labels get
printed? That is -- have you ever worked one of those little
guns?
A. Yes, sir.
Q. Okay. And -- is it right that the gun is set so that the
double-O 35 is on there; right?
A. Yes, sir.
Q. And the -- the date, how is the date set?
David Kordyak - Cross
A. It's set by a -- it's got a knob that slides back and
forth, and you can set it and it'll -- it'll come up with the
date. You set the month and the date and the year, and you
push it all the way back and it's set.
Q. It's set; right?
A. It's set.
Q. And have you -- have you been a greeter at your store?
A. No, sir, I haven't.
Q. Okay. But you've operated the gun; right?
A. I have operated the gun, yes.
Q. Okay. Now, when you operate it, do you get instructions on
how to check that date?
A. You are -- you are taught at time of hire how to -- how to
operate the -- the gun when you're hired. We have -- we
have -- we have people that teach you how to do this.
Q. Teach you how to do it. And this is -- is it like a
little -- the gun that you see people with in the stores
putting prices on things? Is it like that?
A. Yes, sir.
Q. Little sticker comes out and -- is it the case that -- that
the -- that there's some tape in the gun that's blank and then
every time you push the trigger -- if I could get this up here.
MR. TIGAR: Thank you, Ms. Hasfjord.
BY MR. TIGAR:
Q. Every time you push the trigger, it prints out the 0035 and
David Kordyak - Cross
the 4-15-95?
A. Yes, sir.
Q. Now, you didn't personally handle the gun that day and
stick the sticker; correct?
A. No, sir, I didn't.
Q. Okay. So of your own knowledge, you don't know whether the
gun was set for the right time, not set for the right time, or
whatever; right?
A. It's -- from my own knowledge, no.
Q. Okay. It's supposed to be; right?
A. Yes, sir.
Q. I'm not criticizing your employees, but that's just what
the state of records is.
Now, you said that when the customer -- when a person
comes in, they -- they bring the -- the item to you; correct?
And they -- whoever -- somebody brought this ticket and that --
and an oil filter that looked like that -- and gave it to you;
correct?
A. Yes, sir.
Q. And you don't remember who that was?
A. No, sir, I don't.
Q. All right. A long time ago?
A. Yes, sir.
Q. You have a lot of customers; right?
A. Yes, sir.
David Kordyak - Cross
Q. That's the whole idea of having a store?
A. Yes, sir.
Q. Okay. Now, the -- when a person does that, you check to
see that the item they're bringing matches the receipt, and you
check to see that it's got a sticker on it; correct?
A. Yes, sir.
Q. And your practice would be then to take that sticker off
and to stick it onto the -- the receipt; correct? Or not? You
tell me how it works.
A. No. Because you don't -- most generally, they are going to
stick -- the door greeter is going to stick it on the sticker
(sic) and on the -- and on the item; and then when we take it
off, we're -- we'll -- when we pull -- when we take it apart to
examine it, to determine whether or not they are the same, we
fold it over, and then we send it back up with them that way.
Q. Okay. So -- let me be clear. There's only one sticker
involved; correct?
A. Yes, sir.
Q. That's the one you get at the door?
A. Yes, sir.
Q. And that sticker is attached to the item or to the receipt?
A. It's attached to the -- to the item which is attached --
which the receipt -- well, the receipt which is attached to the
item. I'm sorry.
Q. So at the front of the store, the person would see the
David Kordyak - Cross
greeter, and the greeter would just stick the receipt right
onto that filter box with the little sticker; correct?
A. Yes, sir.
Q. Okay. And then you fold it over?
A. And then after we take it off, we'll fold it over, yes.
Q. Now, once you get this receipt and that you've initialed it
and put the sticker on it, that's just like cash; correct?
A. Say that one more time, please.
Q. Well, if I have this receipt with your initials on it and
the sticker --
A. Uh-huh.
Q. -- that's worth $2.90 to me; right?
A. After -- after you -- well, yes.
Q. All right. In other words, I could -- I could give it to
somebody, they could give it to somebody else, they -- whoever
shows up with that is going to get $2.90; right?
A. Yes.
Q. So in that sense, it's just like cash; correct? It's as
good as cash?
A. Yes.
Q. All right. That is to say, you can take it into a Wal-Mart
store and they will -- you'll get money for it; right?
A. Yes.
Q. And when you get money for it, they take this receipt;
right?
David Kordyak - Cross
A. Yes, sir, they do.
Q. Okay. So that whoever -- whoever has this, in order to get
their $2.90, has to surrender this little thing, the receipt
and sticker we've been talking about; right?
A. Yes.
MR. TIGAR: Thank you very much, Mr. Kordyak. I don't
have any further questions of you. The prosecutor may.
THE WITNESS: Thank you.
MR. TIGAR: Thank you, your Honor.
THE COURT: Do you have any follow-up?
MS. WILKINSON: Yes, your Honor.
REDIRECT EXAMINATION
BY MS. WILKINSON:
Q. Sir, you were asked about several different GMC vehicles on
cross-examination. I want to go back to Government's Exhibit
1857, page 2, please.
And does that indicate that this is describing a 1984
GMC half-ton diesel?
A. Yes, ma'am.
Q. What type of oil filter does it say it needs?
A. A PH13 Fram oil filter.
MS. WILKINSON: Your Honor, we'd offer Government's
Exhibit 2006 for demonstrative purposes.
MR. TIGAR: No objection, your Honor, for
demonstrative purposes.
David Kordyak - Redirect
THE COURT: All right. Received for that.
BY MS. WILKINSON:
Q. Is 2006 the type of oil filter that someone would need for
an '84 GMC half-ton diesel truck?
A. Yes, ma'am.
Q. And is that the only -- would that oil filter that you've
just described fit that GMC truck?
A. Yes, ma'am.
Q. Would 2004, the smaller one in front of you, fit the GMC
diesel truck?
A. This one?
Q. Yes.
A. No, ma'am, it will not.
Q. And would you sell a customer that smaller one if they came
in and told you that they were looking for a -- an oil filter
for an '84 GMC half-ton diesel truck?
A. No, ma'am, I would not.
Q. Now, let's take a look at Government's Exhibit 2000. Do
you see that? This is the receipt from Mr. Nichols' house.
A. Yes, ma'am.
Q. And can you review that and see if on that there's any
purchase of an oil filter.
A. No, ma'am. I see no purchase of an oil filter on there.
Q. So according to this Wal-Mart -- Manhattan Wal-Mart
receipt, this customer did not purchase a oil filter on
David Kordyak - Redirect
April 15, 1995; is that right?
A. That's correct.
Q. Now, you told us that you worked on April 15, 1995, back in
the automotive section; right?
A. Yes, ma'am.
Q. And do you know whether you handled the sticker that's on
the top of Government's Exhibit 265B, or whether that was
already on the receipt when you received it from the customer
when you initialed it?
A. I do not know whether I handled that or not.
Q. You don't have any recollection of that?
A. No recollection of it, no, ma'am.
Q. But you do know that you received an oil filter on that
day; is that right?
A. Yes, ma'am.
Q. And of the size that is exhibited on Government's Exhibit
2004?
A. Yes, ma'am.
MS. WILKINSON: No other questions, your Honor.
THE COURT: Mr. Tigar.
RECROSS-EXAMINATION
BY MR. TIGAR:
Q. I'd like to put up here Government's Exhibit 2000, the
receipt, if I may.
So this receipt shows that your customer was in the
David Kordyak - Recross
store on April 15 at 1440. Does that look like what that is?
A. Yes, sir.
Q. And that's a -- that means 2:40 in the afternoon?
A. Yes, sir. It does.
Q. Now, what hours are you all open up there in Manhattan?
A. I am open from 8 to 10, Monday through Sunday.
Q. Seven days a week?
A. Seven days a week.
Q. And you -- your refund process doesn't have a time stamp;
correct?
A. Excuse me?
Q. The refund process that we were talking about earlier,
there's no time stamp connected with that; right?
A. No, sir.
Q. Okay. And this customer, you notice, you said, did not buy
an oil filter. This is a bunch of -- these are household
goods; correct?
A. Yes, sir.
Q. All right. Including a sheet set?
A. Yes, sir.
MR. TIGAR: Thank you very much. I have no further
questions.
MS. WILKINSON: This witness is excused, your Honor.
THE COURT: Agreed to excuse the witness?
MR. TIGAR: Yes, your Honor.
THE COURT: Excuse?
You may step down. You're excused.
THE WITNESS: Thank you.
THE COURT: Next, please.
MR. MACKEY: Your Honor, at this time we'd re-call our
fingerprint expert, Louis Hupp.
THE COURT: All right. Come in, please, under the
oath previously taken.
(Louis Hupp was recalled to the stand.)
DIRECT EXAMINATION
BY MS. WILKINSON:
Q. Good afternoon, Mr. Hupp. You were here before, were you
not?
A. Yes, I was.
Q. You testified about fingerprint examinations?
A. That is correct.
Q. And during your testimony, you mentioned I think base -- in
response to Mr. Tigar's question about people being in
Mr. McVeigh's room -- do you recall that -- in the Dreamland
Hotel?
A. Yes, I do.
Q. And can you explain what you meant by that.
A. When I arrived in -- in Herington, Kansas, that afternoon
to -- or that morning to process this motel room, I was
informed that an individual had been moved either the night
Louis Hupp - Direct
before or that morning from that room so that there had been
somebody else in that room since Mr. McVeigh had left.
Q. What date did you arrive?
A. The 21st.
Q. Okay. And did you know that Mr. McVeigh had checked out on
April 18th, 1995?
A. I knew he had checked out. I've come to realize since then
it was the 18th, yes.
Q. Do you have any information based on your personal
knowledge that there was anyone in Mr. McVeigh's room with him
when he was there?
A. Not when he was there, no.
Q. Okay. Now, have you been asked to do additional
fingerprint comparisons in this case?
A. Yes, I have.
Q. And like last time, did you bring a notebook with some
notes?
A. Yes, I did.
Q. Okay. And are you going to refer to them during your
testimony?
A. Yes.
Q. First, sir, I want to ask you about an exhibit that's not
yet in evidence. It's Government's Exhibit 26. Did you
examine page 47 of that?
A. Yes, I did.
Louis Hupp - Direct
Q. Did you find any fingerprints?
A. Yes.
Q. And how many fingerprints did you find?
A. I found three latent prints which were of value for
identification purposes.
Q. Whose prints were they?
A. Mr. Terry Nichols.
Q. Now, let's turn to Government's Exhibit 265. And for
purposes of exhibiting it to the jury, I'm going to show them
265B. Are you familiar with this exhibit?
A. Yes, I am.
Q. And did you examine the original Government's Exhibit 265?
A. Yes, I did.
Q. And did you determine whether there were any latent prints
of value?
A. Yes.
Q. How many latent prints of value did you find on this entire
document?
A. There were five latent prints which were suitable for
identification purposes developed on this particular document.
Q. Were you able to identify all five prints?
A. Yes, I was.
Q. Whose prints were they, Mr. Hupp?
A. I identified two of them with the fingerprints of a Timothy
McVeigh, and I identified the remaining three fingerprints with
Louis Hupp - Direct
a fingerprints of Mr. Terry Nichols.
Q. Okay. We have a copy of the receipt in front of us; is
that right? Government's Exhibit 265B?
A. Yes, I do (sic).
Q. And you have 265 up there -- is that right -- or you looked
at 265 when you did your print identification?
A. Yes, I did.
Q. And did you take photographs of the fingerprints that you
actually found on Government's Exhibit 265?
A. Yes.
Q. Did you take those fingerprint photos that you took back at
FBI headquarters, and did you assist in designing several
charts that would be able to show this jury where those
fingerprints were found on this receipt?
A. Yes.
Q. All right. Let me show you Government's Exhibit -- hold on
one second -- 265C. Do you recognize that?
A. Yes, I do.
Q. Is that one of the charts that you created?
A. Yes, ma'am.
Q. And would it assist you in explaining to the jury where you
found the fingerprints on the front of the Wal-Mart receipt?
A. Yes.
MS. WILKINSON: Your Honor, we'd offer 265C for
demonstrative purposes.
Louis Hupp - Direct
MR. TIGAR: No objection, your Honor.
THE COURT: Received, may be so used.
BY MS. WILKINSON:
Q. Mr. Hupp, what's on the right-hand side of this
Government's Exhibit 265C?
A. This is a copy of the Wal-Mart receipt that was prepared
prior to my examining for the presence of latent prints.
Q. Is this the front of the receipt?
A. Yes, ma'am.
Q. How many fingerprints did you find on the front of the
Wal-Mart receipt?
A. I found two.
Q. All right. Now, let's start by orienting ourselves at the
top with the sticker on the right. Do you see that partial
sticker?
A. Yes, I do.
Q. Can you circle that with your pen, please.
What is on the left-hand side of this Exhibit 265B?
A. This is a copy of the same receipt of which I had
photographs taken after I had developed the prints.
Q. Have you oriented it for the jury so it matches up with the
front of the receipt that is shown on the right-hand side of
this exhibit?
A. Yes.
Q. All right. Let's start at the top here. Can you tell the
Louis Hupp - Direct
jury whose fingerprint you found at the top of the Wal-Mart --
front of the top of the Wal-Mart receipt.
A. Right on top of the word "Wal-Mart" is a fingerprint which
I identified with Mr. Terry Nichols.
Q. And did you find a fingerprint on the top -- I mean on the
bottom of the front of the Wal-Mart receipt?
A. Yes. And that was a fingerprint of Mr. Timothy McVeigh.
MS. WILKINSON: Your Honor, may I approach the witness
with copies that he can mark on?
THE COURT: Yes.
BY MS. WILKINSON:
Q. Mr. Hupp, I've handed you first Government's Exhibit 265CC.
Do you see that?
A. Yes.
Q. Is that a copy of what the jury is seeing in front of them
right now?
A. Yes, it is.
Q. And can you mark on that on the right-hand side where you
found -- using the red pen that's in front of you --
A. Would you like me to remove it from the envelope?
Q. Yes, please. Thanks. Put Mr. Nichols' initials, TN, on
the right side of the exhibit showing where you found his
fingerprint.
And can you indicate on the right-hand side down there
on the bottom with TM where you found Mr. McVeigh's initials.
Louis Hupp - Direct
THE COURT: Initials?
MS. WILKINSON: Fingerprint. Thank you, your Honor.
And, your Honor, we'd offer 265CC and would like to
show it on the ELMO.
THE COURT: All right. You want to show it to
Mr. Tigar first?
MS. WILKINSON: Sure.
MR. TIGAR: No objection, your Honor.
THE COURT: All right. Received, and you may show it.
MS. WILKINSON: Thank you.
THE COURT: This also is demonstrative; right?
MS. WILKINSON: No. It's for substantive purposes to
show where the fingerprints actually were. Mr. Tigar had no
objection to that.
THE COURT: Oh, all right.
BY MS. WILKINSON:
Q. Now, Mr. Hupp, the jury is now looking at what you marked
265CC. And here at the top, are you indicating that's where
Mr. Nichols' fingerprint was on the front of the receipt?
A. That is correct, right above the word "Wal-Mart."
Q. And what about down here at the bottom?
A. That is Mr. Terry -- Timothy McVeigh's prints -- Timothy
McVeigh, and it's right along where the word "sales" and just
below the black line which is depicted as the white line in the
other photograph.
Louis Hupp - Direct
Q. I believe you said the word "prints." Did you mean
"print," or the plural?
A. There is a print of each individual on the front side.
Q. Only one --
A. One print of each.
Q. -- as to each individual? Now, did you prepare another
chart with the photographs of the fingerprints that you found
on the back of the Wal-Mart receipt?
A. Yes, I did.
Q. All right. Now, let me show you what's not yet in
evidence, which is Government's Exhibit 265D. Do you
recognize -- do you recognize that?
A. It's not up yet.
Q. It's not quite up. Now, do you recognize it?
A. Yes, I do.
Q. And on the right-hand side of the exhibit, what does that
show?
A. On the right-hand side is -- again, is a copy of the back
side of the receipt prior to the latent print examination.
Q. And are there two copies of the back side?
A. Yes, there are.
Q. What's on the left-hand side of this exhibit?
A. These are two copies of the two photographs that I prepared
after the latent prints were developed.
MS. WILKINSON: Your Honor, we'd offer 265D for
Louis Hupp - Direct
demonstrative purposes.
MR. TIGAR: No objection, your Honor.
THE COURT: Received.
BY MS. WILKINSON:
Q. Now, Mr. Hupp, tell the jury again, since they couldn't see
it when you were describing it for foundational purposes, what
they're seeing on the right side of this exhibit.
A. On the right side is actually a photographic cop -- or a
copy of the receipt prior to my processing it for latent
prints.
Q. Now, let's orient the jury again. Up at the top, what do
you have up there on the right side?
A. Again, it's that -- the sticker at the top, which is --
appeared on the front.
Q. So if you were holding the receipt, you showed us the front
with the sticker, you just turn it over and that would be the
top again of the receipt where the sticker is --
A. Yes.
Q. -- looking at the back? Okay. And down on the bottom
right-hand side, what is that?
A. The bottom right-hand side is -- again, is a copy prior to
my processing for latent prints.
Q. What's on the left-hand side of this exhibit?
A. This was a photograph that was prepared after the latent
prints were developed on that particular document.
Louis Hupp - Direct
Q. How many latent prints did you identify on the back of the
Wal-Mart receipt?
A. The three that were developed.
Q. How many were Mr. Nichols'?
A. Two of them.
Q. Where did you indicate that on this Government exhibit?
A. They were up right next to the little seal or little
sticker.
Q. Okay. And is that what these two red marks are on
Government's Exhibit 265D at the top left-hand corner?
A. Yes.
Q. And how many of Mr. McVeigh's prints were on the back of
the Wal-Mart receipt?
A. Just one.
Q. Where was Mr. McVeigh's print located?
A. It was to the bottom side of the receipt.
Q. Could you take out Government's Exhibit 265DD and do the
same thing you did last time, use Mr. Nichols' initials to mark
where you found his two prints on the back. And use
Mr. McVeigh's initial to mark where you found his one print on
the back of Government's Exhibit 265.
A. Would one set of initials be sufficient for both prints?
Q. Why don't you put a parentheses 2, just so the jury knows
there's two prints.
A. Okay.
Louis Hupp - Direct
MS. WILKINSON: Your Honor, we'd offer 265DD.
MR. TIGAR: No objection, your Honor.
THE COURT: Received.
BY MS. WILKINSON:
Q. Now, let's start at the top of 265DD. And that's where
this sticker is; correct?
A. That is correct.
Q. This is the back of the receipt?
A. That is correct.
Q. And where are Mr. Nichols' prints found?
A. They are found just to the right of the -- that little
sticker. In that area where I marked.
Q. Now, we're going to go down to the other copy of the
same -- back of the receipt and starting here at the top of the
sticker, which is, you told us, the top of the receipt;
correct?
A. That's correct.
Q. On the back, where were Mr. McVeigh's prints found?
A. To the lower left-hand corner of that receipt.
Q. And that would account for the total of the five prints
that you found on Government's Exhibit 265?
A. Yes.
Q. Now, were you asked in this case to look at another
Wal-Mart receipt?
A. Yes, I was.
Louis Hupp - Direct
Q. If you'll look at Government's Exhibit 2000.
A. Yes.
Q. Did you examine that?
A. Yes, I did.
Q. Did you find any prints on Government's Exhibit 2000?
A. There were two latent prints suitable for identification
purposes developed on Government's Exhibit 2000.
Q. Okay. Now, were you able to identify either of those
prints on this Wal-Mart receipt, Government's Exhibit 2000?
A. I was able to identify one of the prints.
Q. Whose print did you identify on Government's Exhibit 2000?
A. I identified that print as a fingerprint of Mr. Terry
Nichols.
Q. Do you recall whether it was on the front or the back of
this receipt?
A. If I can look at my photographs, I can tell you.
Q. Sure.
A. It was on the back side.
Q. So you found Mr. Nichols' print on the back?
A. Yes.
Q. Do you recall where the unidentified print was?
A. It also was on the back side.
Q. Now, when you testified earlier in this case, you talked
about your ability or the FBI's ability to try and match or
identify unidentified -- previously unidentified prints. Do
Louis Hupp - Direct
you recall that?
A. Yes.
Q. And you discussed, I believe, on direct and
cross-examination some computer system you have that enables
you to try and identify fingerprints.
A. Yes.
Q. Is that right? If you were going to try and identify this
fingerprint on Government's Exhibit 2000 that is unidentified
so far, could you put it into your computer to do some kind of
analysis?
A. No.
Q. Why not?
A. This particular print, although it is of value for
identification purposes and can be identified, it is not what
we would call a "classifiable" print. Therefore, it does not
meet the basic criteria for a search in our automated system.
Q. Okay. So are -- have you found that there are numerous
unidentified prints in this case that are not classifiable?
A. Yes.
Q. And does that mean you could not put them into your
computer to search?
A. That is correct.
Q. All right. Have you gone back based on my request and
looked at how many unidentified prints you have in
Mr. McVeigh's Room 25 in the Dreamland Motel?
Louis Hupp - Direct
A. Yes.
Q. And how many unidentified latent prints did you have -- did
you find in Room 25?
A. There were 21 latent fingerprints, four latent palm prints
and one latent impression.
Q. Now, out of all those prints, how many of those were
classifiable?
A. Bearing in mind that we couldn't do the palm prints or the
impression, I found that there was one fingerprint which would
suit -- be suitable for a computer search.
Q. Okay. So all the rest of those, you couldn't put into the
computer, no matter what?
A. That's correct.
Q. Let's talk about the one print you could put into the
computer. Did you have any identifying information about that
print?
A. No.
Q. Now, when you put a print into your computer for a search,
what type of information do you need?
A. I need basically to know if it's a -- what the sex is, what
the race is, I need to know an approximate location, I need to
know if the fingerprint is classifiable, what the class is, and
a location.
Q. All right. Well, let's take that fingerprint. You had
none of that information; correct?
Louis Hupp - Direct
A. That is correct.
Q. Could you, without any of that information, just put that
print into your computer and try and do an identification?
A. No.
Q. What would you have to do?
A. I would have to generate some sort of information, false
information or guess information, in order to draw down a
database that I could search under.
Q. Okay. Well, let's talk about the database you have to use.
First, you said you have to know the sex; is that
right?
A. That's correct.
Q. So if you wanted to search for this fingerprint in Room 25,
you would have to make up whether the person was male or
female?
A. Yes.
Q. All right. You had to know the race; is that right?
A. Yes.
Q. And does your computer system have just two races?
A. Yes.
Q. All right. So you have to determine whether the person was
what? What were the two races?
A. White or black.
Q. Okay. And do you have age categories in your computer
search?
Louis Hupp - Direct
A. Yes. We have an age category that we would search within
the boundaries of.
Q. And what are the ages that you can search for?
A. Between the ages of 18 and 62.
Q. So you could not search for anyone younger than 18; is that
right?
MR. TIGAR: Objection to leading.
THE COURT: Sustained.
BY MS. WILKINSON:
Q. Could you search for anyone under the age of 18?
A. The only way it would be possible is if they had a prior
criminal history and had been judged to be an adult in some
court of law.
Q. Okay. Could you search for anyone above the age of 62?
A. Only if they continued to have criminal histories, such as
a wanted individual or something of that nature.
Q. What if they had no criminal history or no continuing
criminal history after the age of 62?
A. Then they are removed from the database.
Q. What are the other categories that you need to have
information for to do this search?
A. Of course, I would do a search by state only; so we went
through state, we went through sex, race, and approximate age,
and fingerprint classification.
Q. When you search for state, how many states do you have
Louis Hupp - Direct
available in the computer?
A. 50.
Q. So let's take this one print in Room 25. How would you
begin a search to try and identify this print without any
identifying information?
A. Well if I wanted to be totally objective on this and wanted
to do the best search possible, I would start out as either a
white male, black male, white female, black female. I would
start at 18 years of age. I would pick a particular state, and
then I would pick this -- this classification I have or size of
it. And I would pick one size and I would bring this into the
database and ask for retrieval.
Q. And what would be retrieved based on that one search?
A. I would retrieve -- they would come back with basically 20
candidates which would meet the criteria or that they are
matched as being a possibility; not a match, but a mere
possibility that it could be the same print.
Q. What would happen with those 20 candidates when they were
spit out of the computer?
A. Then I would sit down with a magnifying glass and I would
hand-compare the 20 possibilities with -- against the latent
print in question.
Q. And what if this person wasn't an 18-year-old white male in
whatever state you chose; they were a 37-year-old female in
Maine? Would you have found their fingerprint?
Louis Hupp - Direct
A. No.
Q. So to be fair, what type of searches would you have to do
to identify this -- this fingerprint?
A. Well, on the particular fingerprint, I would start out most
likely as a white male, 18 years of age, a particular size for
the fingerprint pattern, and one single state. Then the next
search would be I would change one of those categories, whether
it be to female or black male or whatever and I would continue
to do this throughout the --
Q. Would you have to change the age each time?
A. Yes. Every time.
Q. And then once you went through 18 to 62, would you have to
change the state each time?
A. Yes.
Q. And to search your entire database, would you have to
search all the 50 states, all the ages, all the sexes, and all
the races?
A. If I wanted to be totally objective and try to do the best
job possible, yes.
Q. And do you know based on your experience and knowledge of
the FBI fingerprint laboratory whether the FBI has ever been
able to identify a fingerprint without any identifying
information and putting it into that computer?
A. Not if they had no information and just had the fingerprint
in question, no.
Louis Hupp - Direct
Q. Now, you were asked, I believe, that -- to make one other
identification in this case. Do you recall that, Government's
Exhibit 1810?
A. Yes.
Q. Do you recognize this: Government's Exhibit 1810?
A. Yes.
Q. Is that a gun taken from Mr. Nichols' house?
A. That is correct.
Q. Did you identify any latent prints on that gun from
Mr. Nichols' house?
A. Yes, I did.
Q. How many?
A. One.
Q. And the other one was unidentified?
A. That is correct.
Q. Where was the unidentified print?
A. The unidentified print was in this area on the scope.
Q. Okay. And where was the identified print located?
A. The identified print was located -- if the bolt were
closed, it was in this area right in here. Right underneath of
the scope area.
Q. And whose print did you identify in the bolt of
Government's Exhibit 1810?
A. That was a fingerprint of an individual by the name of
Roger Moore.
Louis Hupp - Direct
MS. WILKINSON: We have no further questions, your
Honor.
THE COURT: Mr. Tigar.
MR. TIGAR: Excuse me, your Honor.
THE COURT: Yes.
MR. TIGAR: May I have a moment?
May I approach, your Honor?
THE COURT: Yes, you may.
CROSS-EXAMINATION
BY MR. TIGAR:
Q. Agent Hupp, I'm going to show you what I've marked as
Defense Exhibit D1567. Are those notes you made before coming
to court?
A. Yes.
Q. And do they describe what you found on the rifle,
Government Exhibit 1810?
MS. WILKINSON: Your -- excuse me, your Honor. If I
could just have a page reference so I know what Mr. Tigar is
referring to.
MR. TIGAR: That are the notes from behind Tab 4.
BY MR. TIGAR:
Q. Is that the notes you made?
A. Yes, sir.
Q. And it says that you found two fingerprints on the rifle
that's in front of you; correct, sir?
Louis Hupp - Cross
A. One on the rifle, one on the bolt, yes.
Q. Yes, sir. And whose name is the first one?
A. I see the name "Terry Nichols."
Q. Right. And then what does it say about the second one?
A. Nothing.
Q. It says "unidentified"; right?
A. That's correct.
Q. Where is Roger Moore's name you made on those notes you
made before coming to court?
A. These are notes I transcribed, and there is an error.
Q. All right. So when did you make the error, sir?
A. Early this morning.
Q. Now, you also told us about some fingerprints that you saw
on that Wal-Mart receipt; correct, sir?
A. That is correct.
Q. And those reports were the subject of a lab report that you
made; is that right, sir?
A. Yes.
Q. I'm --
THE COURT: We've two receipts here, don't we?
MR. TIGAR: Yes, your Honor. Let me be clear.
THE COURT: All right.
MR. TIGAR: It was the shorter of the two Wal-Mart
receipts. That would be Government Exhibit 265B.
BY MR. TIGAR:
Louis Hupp - Cross
Q. Show you the front of it there, if I may. Yes. You told
us about some fingerprints on this; correct?
A. That is correct.
Q. Now, I'm going to show you what's been marked as Defense
Exhibit E129, and I ask you if that's a copy of the report that
you prepared that included your fingerprint examination of that
Wal-Mart receipt.
A. That is correct.
MR. TIGAR: I offer it, your Honor.
MS. WILKINSON: I just --
MR. TIGAR: E129.
MS. WILKINSON: That doesn't help me. I just need to
take a look at it.
MR. TIGAR: Excuse me, your Honor.
MS. WILKINSON: No objection.
THE COURT: E129 is received.
BY MR. TIGAR:
Q. And sir, now I'd like to show you what I've marked as a
copy of -- excuse me -- Defense Exhibit 130 and ask you if
those are notes that you prepared in the course of your
examination of the fingerprints, including the fingerprints on
the Wal-Mart receipt.
A. Yes.
MR. TIGAR: I offer it, your Honor. E130.
MS. WILKINSON: No objection, your Honor.
Louis Hupp - Cross
THE COURT: E130 is received.
BY MR. TIGAR:
Q. Now, sir, let's start by taking a look at E129. Show you
the third page here. Now, down here, it says, "The 10 latent
fingerprints developed on the following items have been
identified as fingerprints of Terry Lynn Nichols," and then
there's a number. And you have three on Q772, Wal-Mart receipt
dated 4-13-95. Do you see that, sir?
A. Yes.
Q. And those are the three fingerprints that you told us about
today; correct?
A. That is correct.
Q. And then if we look at the bottom of page 2, we see, "10
latent fingerprints developed on the following items have been
identified as fingerprints of Timothy McVeigh," and then
there's an FBI number; correct?
A. That's correct.
Q. And then carrying over, we see two on Q772, Wal-Mart
receipt dated 4-13-95; correct?
A. Yes.
Q. So that's a total of five fingerprints; is that right?
A. Yes.
Q. Now, sir, let me get from you -- do you have the original
of 130?
I'm going to put up what's been received as E130, and
Louis Hupp - Cross
there we see Q772. See that?
A. That's correct.
Q. And that's the Wal-Mart receipt; correct?
A. That's correct. Yes.
Q. Now -- now, at the top, we see the name "Terry Lynn
Nichols"; correct?
A. Yes.
Q. And then over further, we see the name "Timothy McVeigh";
correct?
A. Yes.
Q. And over on the far -- let's go out. Here's the line for
Q772. And over in the final line, it says you found a total of
five fingerprints. Do you see that?
A. Yes, sir.
Q. And that's how many you found; five?
A. That is correct.
Q. And then over here in the first column, it says -- would
you read these numbers for us, please. Those are under the
name "Terry Lynn Nichols," aren't they?
A. That's correct.
Q. All right. And this is Q772. Just read what that means
there. Four -- it says four; right?
A. Yes.
Q. And then it has a zero with a slash through it; correct?
A. Sure.
Louis Hupp - Cross
Q. And then it has 5-20; correct?
A. That is correct.
Q. Now, the 5-20 is the date; right?
A. That is correct.
Q. Underneath, are those your initials?
A. Yes.
Q. And what does the 4 mean?
A. That means 4 fingerprints.
Q. So it says you identified 4 fingerprints of Terry Nichols;
correct?
A. This was a tabulation sheet, but that's what it says, yes.
Q. All right. And then over here, it says you identified one
fingerprint; and we go up here and that's Timothy McVeigh;
correct?
A. That is correct.
Q. So isn't it a fact that on E130, you said you had four of
Terry Nichols' fingerprints and one Timothy McVeigh
fingerprint?
A. That's what this clearly indicates.
Q. And then when you get around to typing the report, you say
you've got three Terry Nichols fingerprints and two Tim McVeigh
fingerprints; correct?
A. That's correct.
Q. Well, is one of these two documents a mistake?
A. This -- the last document --
Louis Hupp - Cross
Q. My question is: Is one of these two documents a mistake?
A. Yes.
Q. All right. Whose mistake?
A. Mine.
Q. When did you make that mistake?
A. 5-20.
Q. On May the 20th, 1995?
A. That is correct.
Q. Now, in addition to that, you had an item on this
Government Exhibit 129 that was Q770-1; correct?
A. That is correct.
Q. Two pages of a storage lease agreement dated 9-22-94
bearing the signature "Shawn Rivers"?
A. Yes.
Q. Do you see that?
A. Yes.
Q. And it says 8; correct?
A. That's correct.
Q. All right. And those are -- as we've seen before, that's
eight identified to Timothy McVeigh; correct?
A. Yes.
Q. Here's E130. And do you see 770-1 on there?
A. That's correct.
Q. Well, how many fingerprints of Timothy McVeigh did you find
on that lease agreement that day?
Louis Hupp - Cross
A. That shows six.
Q. All right. So is one of these two documents in error?
A. Yes.
Q. Which of the two documents is in error?
A. The document that is on the screen at this time.
Q. And that is a document you prepared; correct?
A. Yes.
Q. You made the error?
A. Yes.
Q. You made it on May the 20th?
A. Yes.
Q. Now, you showed us -- this is 265C. And that has marked a
fingerprint up here of Terry Nichols and one down here of
Timothy McVeigh; correct?
A. Yes.
Q. And then this is 265D, and it's got one Timothy McVeigh and
two Terry Nichols; correct?
A. Yes.
Q. All right. Now, when you made up this report, E130, that
was handwritten, did you attribute one of these fingerprints --
MS. WILKINSON: Your Honor, I'm just going to object
to him calling E130 a report. I believe those are notes and
not the report.
THE COURT: Do you accept that change?
MR. TIGAR: I accept the change.
Louis Hupp - Cross
BY MR. TIGAR:
Q. Well, let's find out. I'm going to place up here on the
machine E130. You make that in your laboratory; correct?
A. That is correct.
Q. And you make it while you're examining the fingerprints;
correct?
A. That is correct.
Q. And it is designed to help you as you begin to prepare to
report on your findings; correct?
A. This is one of the tools, yes.
Q. And so how -- how do you describe this?
A. This was a tabulation sheet as we were keeping track of the
items as we were going.
Q. Well, this tabulation sheet, then, has you tabulated four
Terry Nichols fingerprints and one Timothy McVeigh fingerprint:
Were you attributing one of the five we've looked at on
Government Exhibit 265 at C and D to Mr. Nichols that you later
decided was Mr. McVeigh's?
A. No, sir.
Q. Well, how -- how did you come to make the mistake, sir?
A. It was just a mental error, sir.
Q. Well, I have up on the screen here 265D; correct?
A. That is correct.
Q. And we can tell that there was a sticker on there at one
time; correct?
Louis Hupp - Cross
A. Yes.
Q. Because we can see it on the top; right?
A. That is correct.
Q. Well, why is it missing on this one, the sticker?
A. I have no -- no reason.
Q. Well, the sticker is -- is stuck to the -- was stuck to the
piece of paper when you got it; right?
A. That is correct.
Q. And if you laid the piece of paper, including the sticker,
down and took a photograph of it, you'd see something like I'm
putting my finger on here, here, and here; correct?
A. That is correct.
Q. And you have no explanation. You see the SWB here?
A. That is correct.
Q. SWB 93 and then you see it here?
A. That's --
Q. This is a negative and this is a positive; correct?
A. That is correct.
Q. And you'd agree with me that the sticker shows up in all
three of the boxes but not the fourth; correct?
A. That's correct.
Q. Well, who made that photograph, sir?
A. This was a computer reproduction, sir. I was just there as
an advisor of it when it was reproduced.
Q. You don't know how it is on this one where you identify
Louis Hupp - Cross
Mr. McVeigh's fingerprint the sticker came to disappear? Is
that your testimony?
A. Well, one -- one of the reasons could very well be that
this sticker is above and to the -- to the right of the area
that's showing. This is a lower half of the -- of the actual
receipt. The sticker was on the extreme top side. And this,
we only cropped an area to show exactly where the latents were;
so most likely, this is off of the area of what was reproduced
for the computer.
Q. Do you know that of your personal knowledge, or are you
just guessing, sir?
A. I know that -- the fact that the sticker appears in both my
photographs.
Q. I understand it appears in your photographs, sir. I'm
asking you are you -- do you know of a fact that there was some
cropping done on the computer before this exhibit was made to
come into court, or are you just guessing?
A. No. I was there when the cropping was done.
Q. So you saw somebody crop off this part to make this fourth
one not match the other three?
A. It wasn't meant to not match. We were merely directing our
attention to the lower portion on one, the upper portion on the
other.
Q. Whatever was meant, sir, you were there when somebody made
a decision to crop this off so it didn't match the other three;
Louis Hupp - Cross
is that right?
A. Yes.
MS. WILKINSON: Objection, your Honor. Argumentative,
your Honor.
THE COURT: Overruled. The answer was yes.
BY MR. TIGAR:
Q. Now, sir, in our last time you were here, we talked about
fingerprints on paper. Do you remember that?
A. Yes, sir.
Q. Now, if I take a -- a blot or ream of paper and I touch it
between my thumb and forefinger, thumbs and forefingers, and
put it into the paper tray of a copy machine, will -- that
might leave fingerprints; correct?
A. It might.
Q. All right. And the -- whether it does or not is dependent
on all the factors that we talked about last time; correct?
A. Yes.
Q. And now, is it possible for those fingerprint impressions
to survive the copying process?
A. I couldn't say with certainty without examining the
question -- the one in question, your Honor -- sir.
Q. Not -- he's your Honor. I'm just --
A. Excuse me.
Q. -- the guy that was imported to help out. The -- but
I'll -- I'll tone down my demeanor so we don't get there again.
Louis Hupp - Cross
The -- have you ever examined documents that have been
run through a Xerox machine?
A. Yes.
Q. All right. Have you got fingerprints off of them?
A. Yes, we have.
Q. Okay. So we know it's possible; correct?
A. It's possible, yes.
Q. Now, you were asked by the prosecutor about this computer
system you have for fingerprints. Did you also notice that the
last time we were together, I made an arithmetic error?
A. Not --
Q. Okay. Well, you said that you could submit 50 prints a
day; correct?
A. That is correct.
Q. And then you had 1,000 unidentified prints; correct?
A. That is correct.
Q. And I said -- I did the math and I said 200 days. Do you
remember that?
A. Yes, I do remember that.
Q. Off by a factor of 10; right?
A. Right.
Q. In 20 days, if you submitted 50 prints a day -- in 20 days,
you could process 1,000; correct?
A. Conceivably, yes.
Q. Now, the prosecutor then asked you about the limitations on
Louis Hupp - Cross
your system that you have. Do you remember that?
A. That is correct.
Q. Now, first, you were asked about the Dreamland Motel. Do
you remember that?
A. Yes.
Q. Now, you went out to the Dreamland Motel and performed a
fingerprint examination, did you not?
A. Yes, I did.
Q. And you were -- you did so with great thoroughness;
correct?
A. That is correct.
Q. You had found one palm print on the commode seat?
A. Yes.
Q. Found a -- prints on the lamp base?
A. Yes.
Q. Found a number of prints in the room; right?
A. Yes.
Q. Okay. The number that you talked about with the
prosecutor?
A. Yes.
Q. What date was that you found those?
A. That was on the 21st.
Q. 21st of April?
A. Yes.
Q. And there had been one guest in the room after Mr. McVeigh
Louis Hupp - Cross
checked out. That was your information?
A. I'm only aware of one. There could have been others. I
don't know.
Q. All right. You're aware of one?
A. Yes.
Q. Also, you went over to the Ryder truck rental place;
correct?
A. Yes.
Q. And did you do your fingerprint examination in place at the
Ryder truck rental place?
A. No.
Q. In fact, you took the counter of the Ryder truck rental
place and shipped it to Washington, did you not?
A. That is correct.
Q. And that was so that you could do your examination more
easily; right?
A. More thoroughly, yes.
Q. Now, the prosecutor asked you whether you were aware of
anybody ever having been in Mr. McVeigh's room other than that
guest that had been there after him; correct?
A. Yes.
Q. Now, who -- who is responsible for telling you what prints
you should use for comparison purposes?
A. No one.
Q. Do you make that decision yourself?
Louis Hupp - Cross
A. For comparison purposes?
Q. Yes.
A. I develop the latent prints, and it is up to the -- to the
investigating officers, whoever they may be, to name such
people as for comparison purposes.
Q. And we can see that process on E130, can we not, because
across the top here are some names?
A. That is correct.
Q. Terry Nichols, Marife Nichols, Nicole Nichols, Timothy
McVeigh, Jennifer McVeigh, Michael Fortier, Steve Colbern, Jeff
Martin, Roger Moore, Kevin Nicholas, James Nichols, James
Waters, David Paulsen, Edward Paulsen; right?
A. Yes.
Q. Okay. And those are names that are given to you by the
person in charge; correct?
A. Yes.
Q. Now, you testified that in order to make maximum use of
your computer information system, you need some information
about who this might be that left the print; correct?
A. Yes.
Q. And what's that system called? It's called AFIS?
A. Yes, sir.
Q. And do the states have those systems as well as the FBI?
A. Some states do, yes.
Q. All right. And does the FBI sometimes cooperate with state
Louis Hupp - Cross
law enforcement in order to use those systems?
A. Yes.
Q. Now, you may not be aware of these things. I'm going to
ask you if anybody told you them so that I can know what --
what comparisons you were asked to make. Were you aware that
an FBI agent named Scott Crabtree had obtained race and
approximate height and approximate age and other details of a
person who had been with the man identifying himself as "Robert
Kling" at the Ryder truck rental place?
A. I would assume through investigation that he would have,
yes.
Q. All right.
A. If there was such a person.
Q. Were you aware that an FBI sketch artist was sent to the
Junction City area at about the time that you were doing your
investigation?
A. Yes.
Q. You knew that man as Mr. Rozycki?
A. I don't know the name, but I know there was an individual
sent.
Q. The purpose of a sketch artist is to meet with people who
have seen individuals and to make some kind of drawing that
looks like that person; correct?
A. Yes.
Q. And the sketch artist is interested in knowing the
Louis Hupp - Cross
approximate age of the person that the witness saw; correct?
A. I would assume, yes.
Q. The race of the person?
A. Yes.
Q. And the physical details of the person; right?
A. Yes.
Q. The gender of the person?
A. Yes.
Q. Now, you also note, do you not, sir, that the FBI had
established command posts in different states that were thought
to be relevant to this investigation?
A. That is correct.
Q. All right. And the names that you have on your E130 come
from different states; correct?
A. Various sources, yes.
Q. Well, looking on E130, the Terry and Marife and Nicole
Nichols: They all live in Herington, Kansas; correct?
A. Yes.
Q. Now, Timothy McVeigh had given various addresses; correct?
A. Yes, sir.
Q. Jennifer McVeigh lived in New York; correct?
A. I assume so. I don't know for certain. I have no personal
knowledge.
Q. And there are a number of people on here that you recognize
as living in Arizona; correct?
Louis Hupp - Cross
A. Well, I don't really know where they live. Some of them, I
do. Some of them, I don't.
Q. Do you recognize some as coming from Arizona?
A. Yes.
Q. And do you recognize some others over here as coming from
Michigan? Right?
A. Some, yes.
Q. All right. So as to some people that you were interested
in, you had information that concerned their gender, their
race, their approximate age, and where they lived; right?
A. Yes.
Q. And the investigation was centered in Arizona, Nevada,
Michigan, Kansas, and New York; correct? Among other places?
A. I would assume, yes.
Q. In addition to Oklahoma, of course --
A. Yes.
Q. -- is that right?
Now, you told us that in order to use the computer,
you need certain things. And the first thing you need is a --
you say is a classifiable fingerprint; correct?
A. That is correct.
Q. And a classifiable fingerprint refers to a latent
impression that contains sufficient characteristics that you
can code it. Is that -- is that fair to say?
A. Well, not exactly.
Louis Hupp - Cross
Q. Tell me what it is.
A. It's a type of print that would have what we call "focal
points" to which I can determine what type of pattern it is and
the size of it.
Q. So -- and when you say "type of pattern," what -- what do
you mean? The general category such as whorls, loops, ridges?
What terms do you use?
A. Loops, whorls, and arches, yes, sir.
Q. And not all latent fingerprints that might be suitable for
comparison are suitable for classification. Is that your
testimony?
A. Yes.
Q. All right. Now, once you classified a fingerprint, you --
and you want to use the computer to deal with it. You then
said you -- you want to know other information such as gender,
and so on; right?
A. Yes.
Q. Now, does the absence of gender information make it
impossible to use the computer, or does it just take longer for
the computer to march through or to crunch through the extra
comparisons or algorithms that it's required to do?
A. It would make it impossible. And if I can explain that,
the computer will only, in this mode -- will only draw down on
a database of 100,000 candidates. Once it achieves 100,000
candidates or possibilities, it shuts down.
Louis Hupp - Cross
Q. And you say once it -- so how do you choose the 100,000
that it's supposed to look at?
A. This is based on the gender, the age, the different factors
that we would get into it.
Q. All right. Suppose -- so if I put in a classified
fingerprint for a 37-year-old white female and -- or say, a
37-year-old Hispanic male from Arizona, is that all the
categories you need? How many do we need? We have a
classified fingerprint.
A. We have a classified fingerprint.
Q. We have age, gender, and do you have a Hispanic
classification?
A. It would -- we would probably, in most instances, divide
it -- we would do a white male and black male to make sure.
Because some departments declare some of them as black
individuals, some of them declare them as Hispanics or whites.
Q. Who makes that decision?
A. That would be the arresting officer. Whatever is placed on
the fingerprint is what is encoded into the system.
Q. Okay. So if I gave you a 40-year-old -- the information is
I asked you to search for a 40-year-old Hispanic male from
Arizona with a certain classification, how long does it take
to -- for the computer to come back with a result?
A. It would take a short period of time in respect if we only
do that one search with one finger.
Louis Hupp - Cross
Q. That one search. I put that information in --
A. Yes.
Q. How long does it take the computer to come back?
A. From just one state?
Q. Yes, sir.
A. I would institute one search.
Q. Yes, sir. How long does it take?
A. It would take approximately three weeks.
Q. Three weeks?
A. Three weeks.
Q. Well, you mean from the time you key this information into
the computer, the computer has to hum, cough, do whatever it
does, for three weeks?
A. No, sir.
Q. Well, I'm -- have you ever done this?
A. Yes, sir, I have.
Q. Okay. When you stand at the computer and enter the
information, how long is it before the computer comes back with
this possible eight or ten names?
A. Overnight.
Q. Basically, the computer takes overnight?
A. Yes.
Q. Now, how many of these things can you do on any given
night?
A. We can do up to 50.
Louis Hupp - Cross
Q. You can do 50 a night. Now, you had 1,034 unidentified
latent fingerprints; correct?
A. Yes.
Q. And you can only use latent fingerprints for this process;
is that your testimony?
A. Well, no, we've entered an -- we've entered other prints;
but generally, this system, we deal with latent prints.
Q. All right. Well, what I'm asking you: Can you do it with
palm prints?
A. No.
Q. Can you do it with impressions?
A. No.
Q. So limiting ourselves, you had 1,034 unidentified
fingerprints; correct?
A. That is correct.
Q. And did you ever take a look at how many of them were
classifiable?
A. No, I did not.
Q. Well, how did you determine that the one out of the
Dreamland Motel was classifiable?
A. I was asked just yesterday by the prosecutor to review my
notes on that particular one and to advise the number of prints
that were there and the number that could be searched.
Q. So overnight, you could tell us based on how many -- How
many unidentified prints were there at the Dreamland?
Louis Hupp - Cross
A. 21 latent fingerprints.
Q. 21 latent fingerprints?
A. Yes.
Q. And you could -- how long did it take you to tell out of
those how many are classifiable?
A. To review them, just a few minutes.
Q. Okay. And up to that time, when the prosecutor asked you
to do it, had anybody ever asked you to look at your 1,034
unidentified fingerprints and determine how many of them were
classifiable?
A. No. Excuse me. No.
Q. Had anybody ever asked you to then -- to use the computer
to do some checks?
A. I think I've testified that sometime, we did receive a
request. And it was later rescinded.
Q. All right. So that was never done; right?
A. That is correct.
Q. And we talked about that last time?
A. Yes.
Q. Now, in addition to a decision whether or not to try to
figure out who had these unidentified prints, there is a thing
known as latent print intercomparison; correct?
A. Yes, there is.
Q. Now, did you do latent intercomparison?
A. No, I did not.
Louis Hupp - Cross
Q. Now, latent print intercomparison works like this, doesn't
it? If I have Location A and there are ten prints,
unidentified latent prints there, and I have ten unidentified
prints from Location B, I can look at and see if any of the
unidentified prints from Location A are the same as those from
Location B; is that right?
A. Yes, I can.
Q. And that is what's called intercomparison of latent prints;
right?
A. That is correct.
Q. Intercomparison of latent prints is a valuable law
enforcement tool, isn't it?
A. I'm not sure that I follow you, because we still have an
unidentified latent print.
Q. Well, if you wonder if the same unidentified person has
visited several different locations, you're able to find that
out using intercomparison of latents; correct?
A. If we can, in fact, effect identifications, yes.
Q. In other words, if a -- if you were to look at the
unidentified prints at a rental agency, and the unidentified
prints on a piece of paper and the unidentified prints on a
rifle and the unidentified prints in a motel room, you could
tell whether or not the same person had visited each of those
four locations; correct?
A. It would be a possibility.
Louis Hupp - Cross
Q. Okay. And you were not asked to do that in this case, were
you, sir?
A. No, I was not.
MR. TIGAR: May I have a moment, your Honor?
THE COURT: Yes.
BY MR. TIGAR:
Q. Now, on direct examination, we talked about a computer, and
I want to make sure we know which one it is. That's -- we
were -- you were talking to the prosecutor about the AFIS
computer?
A. AFIS. It's been renamed several times. As a matter of
fact, it's now called LEWS, L-E-W-S.
Q. Now called what?
A. LEWS, L-E-W-S. The system has revolved over years.
Q. Not named after you?
A. No. No. No.
Q. But -- but now it's called LEWS. Let's call it LEWS.
Okay. You go down to LEWS. Now, is LEWS the same as NULF?
A. NULF is "no latent prints of value."
Q. Now, what about National Unidentified Latent File. NULF?
A. We don't have that anymore.
Q. You don't have the National Unidentified Latent File
anymore?
A. Not anymore. It's been held back. It's been kind of put
back. The computer system has taken its place.
Louis Hupp - Cross
Q. But there is such a thing as a National Unidentified Latent
File; correct?
A. Yes, at one time.
Q. Are the records of that still available?
A. They -- they might be in headquarters.
Q. All right. But you didn't look at them in connection with
this case; is that right?
A. No, I did not.
Q. Okay. And what is -- is LEWS and AFIS the same as ALSA3?
A. That is correct. That is another one of the evolving
names.
Q. That's called Automated Latent Search; right?
A. Yes.
MR. TIGAR: Okay. Thank you, your Honor. I have
nothing further.
THE COURT: Any redirect?
MS. WILKINSON: Yes, your Honor.
Your Honor, it's going to take me about 15 minutes. I
don't know if you want to take a break now or --
THE COURT: I think we'll take the break now.
You may step down, Mr. Hupp.
Members of the jury, we'll take our midafternoon
recess at this time, the usual 20 minutes, during which the
usual cautions will apply, of course, avoiding discussion of
the case and keeping open minds.
Louis Hupp - Cross
You're excused. 20 minutes.
(Jury out at 3:16 p.m.)
THE COURT: All right. Recess.
(Recess at 3:16 p.m.)
(Reconvened at 3:35 p.m.)
THE COURT: Be seated, please.
(Jury in at 3:36 p.m.)
THE COURT: All right. If you'll resume the stand,
Mr. Hupp.
Ms. Wilkinson.
MS. WILKINSON: Thank you, your Honor.
REDIRECT EXAMINATION
BY MS. WILKINSON:
Q. Mr. Hupp, in this case, the Oklahoma City bombing case,
approximately how many fingerprint examinations and comparisons
have you done?
A. It would be in the hundreds of thousands.
Q. And Mr. Tigar was nice enough to admit to you on
cross-examination that he made a math error. Is that right?
A. That is correct.
Q. And you've made a few math errors in this case, haven't
you?
A. That is correct.
Q. But before you report out your findings, you review your
work, don't you?
Louis Hupp - Redirect
A. That is correct.
MR. TIGAR: Objection, leading, your Honor.
THE COURT: Sustained.
BY MS. WILKINSON:
Q. Do other people review your work before you report out your
findings?
A. Yes.
Q. Now, you were shown by Mr. Tigar just one page from your
report. I think he called it E130. Do you recall that? The
chart?
A. Yes, I do.
Q. And is that part of a report that you issued regarding
Q772, which you said was the Wal-Mart receipt?
A. That is correct.
MS. WILKINSON: Your Honor, we'd offer the complete
report, Government's Exhibit 2116.
MR. TIGAR: May I inquire, your Honor?
THE COURT: Yes.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. Do you have 2116 in front of you, sir?
A. No, I don't.
Q. In addition to three typewritten pages, sir, that contains
two handwritten pages, does it not?
A. That is correct, yes.
Louis Hupp - Voir Dire
Q. Now -- and one of those handwritten pages is the same as
the handwritten page that I showed you that we marked in
evidence as E130. Correct?
A. Yes.
Q. Now, when I examined you on cross-examination, you said
that E130 is not your report -- correct -- that is to say, that
fourth page, the handwritten page?
A. That fourth page is not a report.
Q. When your report goes forward, sir, does it go forward with
that attached to it?
A. No, it does not.
Q. So what you have there is in fact not your report, is it?
A. This is a copy of my worksheet. Personal notes, if you
like.
Q. Well, the first three pages are typed; is that correct,
sir?
A. There are -- no, the first two pages -- page 1 and part of
page 2 are typed. There are handwritten notations after that.
MS. WILKINSON: Your Honor, maybe it would help if I
called it the "worksheet" and not the "report." That's
probably my mistake.
THE COURT: Well, I guess the witness ought to tell us
what it is.
BY MR. TIGAR:
Q. All right, sir. I'm going to show you what has been
Louis Hupp - Voir Dire
received in evidence as Defense Exhibit E129. I'm going to ask
you is that the same thing as what you're looking at there?
A. No, it is not.
Q. E129 is what you identified as your report; correct?
A. That is correct.
Q. How many pages of E129 are missing from what you have
before you, Government's Exhibit 2116?
A. There are no pages missing in E129.
Q. That's right. And how many pages are missing in 2116 from
what you testified a moment ago was your report, which is now
in evidence, which is in front of you?
A. This again, Government's Exhibit 2116, is a copy of my
worksheet from which I prepared E129. This is what I made my
personal notes on, which enabled me to dictate this report and
send this report to the field.
Q. Now, page 1 of E129 is the same as 2116 except there are
some notes on it; correct?
A. Well, there is other differences.
Q. Okay. And there are some handwriting on 2116. Is that
your handwriting?
A. Yes, it is.
Q. And this list here is -- has the highlighter on it. Did
you put the highlighter on it?
A. No, sir.
Q. You don't know who did?
Louis Hupp - Voir Dire
A. No, I don't.
Q. And this last page also has highlighter on it. Is that
correct, sir?
A. That is correct.
Q. Now, this page here, the first one, is -- that's Bates'
stamped 00089 -- is that your handwriting?
A. Some of it is, some of it is not.
Q. What part of it is yours?
A. The part here at the top, my initials here; and this was
written by another individual because their handwriting was
obviously better.
Q. Regardless of that, the part that includes the highlighted
material is not your handwriting. Correct, sir?
A. That is correct.
Q. And yet is it -- and it's your testimony, though, that
that's your worksheet even though you didn't do it?
A. I prepared parts of it. Parts of it were prepared at my
direction.
MR. TIGAR: We object to it, your Honor.
THE COURT: What's the purpose?
MS. WILKINSON: May I ask a few more questions?
THE COURT: What's the purpose of the offer here?
MS. WILKINSON: Because Mr. Tigar only offered one
page of that worksheet, your Honor, and the page before it
shows other information relevant to what Mr. Tigar pointed out
Louis Hupp - Voir Dire
on the third page. It would make it complete. Otherwise
they've only seen one page of the worksheet.
THE COURT: It's not clear to me what page it is.
BY MS. WILKINSON:
Q. Mr. Hupp --
MR. TIGAR: Your Honor, I have no objection to the
Government offering without the highlighting that this witness
did not put on the third page, which is the next-to-last page,
provided it can be established that this witness wrote it.
THE COURT: Go ahead with your additional foundation.
REDIRECT EXAMINATION CONTINUED
BY MS. WILKINSON:
Q. Government's Exhibit 216, Mr. Hupp. What is that?
THE COURT: It's 2116.
MS. WILKINSON: I'm sorry. 2116.
THE WITNESS: This is a copy of a worksheet that is
prepared in the latent fingerprint section for the purpose of
placing personal notes by the individuals who are working the
case.
BY MS. WILKINSON:
Q. Are those your notes, or have you adopted those notes?
A. These -- some of these notes were mine. There were more
than -- there were several individuals who were working on this
case at this point in time. They were all working under my
direction, and everything they put on here I had to review and
Louis Hupp - Redirect
had to acknowledge and agree with. Many instances, persons put
notes on here because they had better handwriting.
Q. How many pages is Government's 2116?
A. There is five total pages.
Q. Are they all stamped with your name down at the bottom?
A. Yes, they are.
Q. What does that stamp indicate?
A. This indicates it was my worksheet, or I had reviewed the
information on it and concurred with the results of what was
placed there.
Q. So have you adopted everything that's in Government's
Exhibit 2116?
A. Yes, I have.
Q. Included in that in the last page: Is that the page that
Mr. Tigar showed you as Government's Exhibit 190?
A. Yes.
MS. WILKINSON: Your Honor, we'd offer it, and
highlighted portions are only to show to the jury. We'll put
in a clean copy for the exhibit. It's just to direct the
jury's attention when I show it on the ELMO.
MR. TIGAR: I don't understand the offer. Is the
offer of the whole thing?
MS. WILKINSON: Yes.
MR. TIGAR: Or just the highlighted portion?
MS. WILKINSON: Of the entire five pages to make it
Louis Hupp - Redirect
complete.
THE COURT: You know, what's important here is his
testimony. That's the evidence in the case, not the notes.
MS. WILKINSON: I understand that, your Honor. On the
page before --
THE COURT: Well, I'm sustaining the objection to
2116.
BY MS. WILKINSON:
Q. Mr. Hupp, did you adopt additional notes regarding the
fingerprints on the Wal-Mart receipt, Government's Exhibit 265?
A. Yes, I did.
Q. And in those notes, is it indicated that there were three
of Mr. Nichols' --
MR. TIGAR: I object to the leading, your Honor.
THE COURT: Sustained as to leading.
BY MS. WILKINSON:
Q. Mr. Hupp, what was in those notes?
A. In those notes it indicated that five fingerprints had been
developed on Q772, which is the Wal-Mart receipt.
Q. Government's Exhibit 265?
A. 265.
Q. Okay.
A. And in fact that two fingerprints had been identified with
the fingerprints of Terry Nichols -- or two fingerprints with
Timothy McVeigh and three fingerprints had been identified with
Louis Hupp - Redirect
Terry Nichols.
Q. And after you reviewed those notes, did you issue the
report that Mr. Tigar showed you, the other exhibit --
Government's Exhibit -- I mean Defense Exhibit 129?
A. Yes, I did.
Q. In that did you indicate the same results: That on the
Wal-Mart receipt, Q772 --
THE COURT: There has been objection to leading here.
And you're going right ahead with leading.
MS. WILKINSON: I'm sorry, your Honor.
BY MS. WILKINSON:
Q. Mr. Hupp, did you report out those findings?
A. Yes, I did.
Q. How did you report out those findings?
A. Those findings were set out that in fact two of the
fingerprints belonged to Mr. Timothy McVeigh and three of the
fingerprints belonged to Mr. Terry Nichols.
Q. Are you aware whether these reports were shared with the
defense?
A. Yes.
Q. Is there any doubt in your mind that you identified three
of Mr. Nichols' prints on the Wal-Mart receipt and two of
Mr. McVeigh?
MR. TIGAR: Object to leading, your Honor.
MS. WILKINSON: Your Honor, I think he suggested those
Louis Hupp - Redirect
prints might not be an accurate identification on
cross-examination.
THE COURT: Well, ask him what his conclusion is now.
BY MS. WILKINSON:
Q. What is your conclusion, Mr. Hupp, as to the identification
of fingerprints on Government's Exhibit 265?
A. My conclusion is that two of the five fingerprints belong
to Mr. Timothy McVeigh and the remaining three fingerprints
belong to Mr. Terry Nichols beyond a shadow of a doubt.
Q. Now, you prepared notes that we've shared with the defense
for your testimony today. Is that right?
A. That is correct.
Q. And Mr. Tigar showed you one page of those notes regarding
the identification on the gun, Government's Exhibit 1810.
A. That is correct.
Q. Now, did you prepare or did you have copies of photographs
of fingerprints in that notebook also?
A. Yes, I did.
MS. WILKINSON: Your Honor, may I approach and show
the witness Government's Exhibit 2115?
THE COURT: All right.
BY MS. WILKINSON:
Q. Mr. Hupp, do you recognize Government's Exhibit 2115?
A. Yes, I do.
Q. What is that?
Louis Hupp - Redirect
A. This is a photograph of the latent print which was
developed on the bolt of the weapon.
Q. Is there a marking on there with a K number?
A. Yes, there is.
Q. What's the K number?
A. The K number is listed at K50.
Q. Is that also known as Government's Exhibit 1810?
A. Yes, it is.
MS. WILKINSON: Your Honor, we'd offer 2115.
MR. TIGAR: May I examine, your Honor?
THE COURT: Yes.
MR. TIGAR: May I look at the exhibit, your Honor?
THE COURT: Yes.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. 2115 is -- that is a photograph?
A. That is a copy of a photograph, yes. Or two photographs,
actually.
Q. And one photograph includes -- the bottom one is a
photograph actually of the scope. Is that right?
A. Of a latent print appearing on the scope, yes.
Q. And the top: What's that a photograph of?
A. That's a photograph of the area of the bolt of which a
latent print was developed.
Q. And is it your testimony that these two fingerprints are of
Louis Hupp - Voir Dire
the same individual?
A. No.
Q. No. So one is one and one is the other. Correct?
A. No. One is -- the bottom one remains unidentified, or the
one on the scope has not been identified.
Q. So the bottom one is not in evidence yet -- I don't want a
description of it. But the bottom one is an unidentified
print; correct?
A. Yes.
Q. It's one of your 1,034?
A. Yes.
Q. And the top is a fingerprint that bears a name. Is that
correct?
A. That is a fingerprint of a Roger Moore.
MR. TIGAR: Well, I can't rebag the cat, your Honor.
I have no objection.
THE COURT: No, he testified to that.
MR. TIGAR: I understand. No objection, your Honor.
THE COURT: All right. 2115 is received.
MS. WILKINSON: May I retrieve it, your Honor?
THE COURT: Yes.
REDIRECT EXAMINATION CONTINUED
BY MS. WILKINSON:
Q. Mr. Hupp, you told us on direct testimony that you had
identified one of the fingerprints on Government's Exhibit
Louis Hupp - Redirect
1810, the gun; is that right?
A. That is correct.
Q. And did you take photographs of those fingerprints?
A. Yes, I did.
Q. At the top here of Government's Exhibit 215 (sic) this says
K50. Tell us again what that indicates.
A. K50 is the indication we assigned in the laboratory or in
the latent section to the weapon in question.
Q. And that's Government's Exhibit 1810?
A. Yes.
Q. The firearm you were holding earlier?
A. Yes.
Q. Now, tell us what this fingerprint is up here at the top.
A. That is an impression of the left middle finger of Roger
Moore.
Q. And that's the only fingerprint you identified from the
gun, Government's Exhibit 1810?
A. Yes.
Q. Now, on cross-examination, you were also asked about the
computer search and the feasibility of doing computer searches
for these unidentified prints. Do you recall that?
A. Yes.
Q. And you said, I believe, or Mr. Tigar gave you the example
of could you do 50 searches a day. Is that right?
A. Yes.
Louis Hupp - Redirect
Q. Now, if you were to do 50 searches a day, could you
complete identification of 50 different prints in one day, if
you had no identifying information?
A. If I had no identifying information, I wouldn't have the 50
prints to compare because nothing would come back.
Q. So when you do, say, 50 searches, what do you mean by 50
searches if you're talking about an unidentified classifiable
latent print?
A. For example, I believe he gave an example of a white male
or Hispanic male approximately 40 years old from Arizona or
whatever and approximate age. That would constitute one
search. If I change either of the entrants, whether it be the
state, whether it be the white male or race, sex, whatever,
that constitutes a second search.
Q. All right. So if you were making up that information based
on something or you were using some information someone had
told you, if the person wasn't -- or was from Arizona, does
that mean you would find their prints in the computer search?
A. No.
Q. Why is that?
A. They might not be in the database.
Q. And do you collect prints from where the person is born, or
from where they're arrested?
A. When they've been arrested.
Q. So someone could be from Arizona; is that right?
Louis Hupp - Redirect
A. That's correct.
Q. And their prints could come from Maine?
A. That's correct.
Q. So to do a full search to look for that unidentified
classifiable latent print, how many states would you have to
search?
A. I would have to search all 50 states to give an honest
evaluation of the searches.
Q. All right. And you already told us you would have to
search two races?
A. That's right.
Q. Both genders; correct?
A. That's correct.
Q. And the size of the pattern? How many searches --
different types of searches would you do that?
A. Generally if it's a good classifiable latent print and it's
a loop, there would be five searches involved.
Q. For each of the race, sex and then age; correct?
A. Then there would be five searches based on the size of the
pattern, because we allow for interpretation or counting areas
from the person that may have encoded the latent print into the
database.
Q. If we were to multiply those numbers for how many searches
you would need to do for one unidentifiable print, we'd have
two for race?
Louis Hupp - Redirect
A. Correct.
Q. How many for sex?
A. Two.
Q. How many for size of pattern?
A. In this instance, I was talking of five.
Q. How many for states?
A. 50.
Q. How many for years or ages 18 through 62?
A. I believe we come up with 45.
Q. And if my math is right, is that about 45,000 different
searches?
A. That is correct.
Q. And would that take about 900 days?
A. Something like that.
Q. And that would be for just one print; correct?
A. That is correct.
MS. WILKINSON: No further questions, your Honor.
RECROSS-EXAMINATION
BY MR. TIGAR:
Q. The document you looked at that had the print with the name
Roger Moore beside it --
A. Yes.
Q. -- when was that picture taken?
A. I'd have to review my notes to give you the exact date, but
it was taken -- as soon as it was detected on the weapon, then
Louis Hupp - Recross
it was photographed immediately.
Q. Sometime in 1995?
A. Sometime in May of 1995.
Q. Did you write the name "Roger Moore" on it at that time?
A. Yes.
Q. And the piece of paper that was in front that I showed you
when we started cross-examination: Did you make that
yesterday; is that correct?
A. That is a mere copy of the photograph that was done at that
time.
Q. Now, the prosecutor asked you about this system. The -- is
it your testimony that each time you want to change something,
you have to start a whole new search?
A. I don't have to reencode the latent, but I have to
regenerate the data information that I'm requesting from the
computer. This is merely a two-step process. Initially we put
in the information, and we extract individuals from the
database that match the criteria based on the age, the sex, the
race, and the time of pattern. Then we would do another search
based on matching minutia with that, so it's a two-step process
to that point.
Q. Well, let's start. First we have a fingerprint we
classify. Correct?
A. Yes.
Q. And there is a standard classification system that consists
Louis Hupp - Recross
of numbers and letters; correct?
A. That is correct.
Q. And those numbers describe arches, whorls and other
characteristics of the human fingerprint. Correct?
A. That is correct.
Q. And how many numbers and letters do we get?
A. We get loops, arches, and whorls. We'd have basically
three there. Then there is various --
Q. Sir, I'm just asking how many numbers makes that unique
identifier that identifies that fingerprint as unique to one
human individual.
A. It would be based as a combination of the type of pattern
and the size of the pattern.
Q. Okay. And what's the range of numbers? That is, it looks
like 1201, and then it has some letters in it and so on. Is
that what it looks like?
A. Actually if you're doing an arch-type pattern, it would be
an arch or tended arch, so we would have two possible
searches --
Q. I want to start by asking: Isn't there a number that
identifies each fingerprint as unique to a particular human
being?
A. I'm not sure I understand what you're --
Q. Do you have something in the file that codes that
fingerprint, that gives it a number? For instance, 1210PZ005,
Louis Hupp - Recross
whatever?
A. Not in my system, no.
Q. Okay. So your system -- in your system, you code it
according to characteristics. Right?
A. That is correct.
Q. And you classify it.
A. That is correct.
Q. Now, so that's one thing you need to classify the print.
Right?
A. That is correct.
Q. And out of the now 1,034 prints, you have a certain number
you can classify. Correct?
A. That is correct.
Q. If you haven't got all of the elements of a classification,
can you still do a search?
A. It would only add to it on the end, yes.
Q. You can do a search of a non-classifiable print. You'll
just get more possibles out the other end. Correct?
A. I would create more searches, yes.
Q. Let's suppose we just limit ourselves therefore to the
classifiable prints out of this 1,034. If I gave you
parameters and just asked that we have a 30-year-old white male
person and we have six states to search, how many searches is
that?
A. That would be rather hard to figure off the top of my head.
Louis Hupp - Recross
If we had white male, that's one search right there.
Q. Okay.
A. If we had six states, now we've got six searches.
Q. Now we're up to 1 times 6 is 6. Correct?
A. Now, if we have -- depends on the type of pattern. If we
had a -- say a loop in the left -- if we had a loop that was
approximately 16 counts, that's 16.
Q. You use -- for the prosecutor you used five as an example?
A. There is five -- I would spread five on either side out of
that 16.
Q. 6 times 5. Now we're at 30; correct?
A. What was the age again?
Q. 30 years old.
A. 30 years old? Then it would be 10 searches there.
Q. 10 searches for 30 years old?
A. Yes.
Q. How do you get to 10 searches for one age?
A. I allow five years on either side for variance of
description.
Q. Okay. So 25 to 35?
A. Yes.
Q. Good. So now we're up to 300; right?
A. Right.
Q. And so we've got one gender. That's a male. Correct?
A. That's correct.
Louis Hupp - Recross
Q. I've got six states?
A. That's correct.
Q. I've got five different finger types possible?
A. Five different counts, yes.
Q. Counts. Counts. All right. I've got counts. And I've
got 10 years on either side. Correct?
A. That's correct.
Q. That's 300 searches?
A. Times 8 for the number of fingers that are in the database.
Q. You didn't tell the prosecutor about the number of fingers.
So that's 2400 searches?
A. That's the possibilities, if I have only one finger and
have no information what it is.
Q. Now, are you able, when you get a latent fingerprint, to
tell what finger it is?
A. Not always.
Q. What finger was it that Terry Nichols used to touch the
Wal-Mart receipt?
A. The -- one of them was a No. 1 and No. 2.
Q. And you wrote the No. 1 and No. 2; correct?
A. That is correct.
Q. And a characteristic of a good fingerprint for comparison
purposes -- one thing is that you can tell what finger it is.
Correct?
A. I can tell once I've identified it; but generally when I
Louis Hupp - Recross
just look at a document, I cannot always be certain which
finger it would be.
Q. All right. So -- well, let's -- all right. Let's allow
the maximum number. So that's -- that's 2400. Right?
A. Correct.
Q. Anything else?
A. Well, every time that we change one of the categories --
Q. I understand. I've asked you these categories. Are there
any more categories that we need?
A. That would basically be it.
Q. Okay. And so that's 2400; correct?
A. That is correct.
Q. Now, if you used intercomparison of latents -- that is,
suppose you had out of 1,034 prints -- suppose you had 50 that
were classifiable. Correct?
A. That's fair.
Q. And suppose that you then did an intercomparison; right?
A. That's correct.
Q. That would further narrow the number in all probability,
would it not?
A. That is correct.
Q. Now, with these 2400 searches that you have here -- all
right -- that would take you -- you can submit 50 a day; is
that right?
A. Yes, sir.
Louis Hupp - Recross
Q. Now, are there a number of different people using the
system?
A. Yes.
Q. Is the system maximum that all the people that are using it
from wherever they are, they can only do 50 a day?
A. That is correct.
Q. Now, states have such systems, don't they?
A. Yes, they do.
Q. And you've got 55 million prints there at the FBI; right?
A. 35.
Q. 35 million?
A. 35 million.
Q. Oh, this only searches the 35 million criminals?
A. That is correct.
Q. It doesn't search the 20 million noncriminals?
A. That is correct.
Q. Okay. So -- but different states do have these systems.
Does Arizona have this system?
A. I'm not familiar with exactly which states would have it to
say off the top of my head. I have access to the information,
but --
Q. You don't know.
A. No.
Q. So 2400 -- all right -- you can do 50 a day. Is that 120
days?
Louis Hupp - Recross
A. You have the pencil. I would assume that's correct, yes.
Q. Well, I don't really know. Yeah. Something like that, we
can figure it out. But you say it's 2400 individual searches.
Correct?
A. That is correct.
Q. And if we wanted to narrow, for instance, instead of six
different states, we only wanted to do two different states --
all right -- then we'd be down to 2 times 5 is 10 times 10 --
we'd be down to 800. Correct? Something like that? But we
can do the math with the numbers that you've given us.
Correct?
A. That's correct.
Q. Now, if this -- did you have a discussion as to the -- to
the effect that this was impractical to do?
A. Yes, I did.
Q. Okay.
A. At the time that it was requested, I was in the middle of
the cases that would be -- the evidence was coming in. I had
evidence coming in continually. At that point in time it was
not practical to stop everything we were doing, which would
have been required to do intercomparisons or whatever, to do
computer searches at a halfway point or quarter point. I would
have to have redone this over and over again, so that I had a
discussion: Could these be delayed until such time as all of
the current evidence had been examined, everybody had been
Louis Hupp - Recross
compared that they felt was involved, and then we would resume
talks as to the possibility of computer searches?
Q. All right. And after you did this delay, to wait till you
all did that, did there come a time when somebody came to you
and said, well, let's don't do it?
A. I believe it was more in line with we won't do it at this
time.
Q. And we agreed last time you were here that this is
certainly one of the biggest cases in the Bureau's history;
correct?
A. Certainly.
MR. TIGAR: No further questions.
REDIRECT EXAMINATION CONTINUED
BY MS. WILKINSON:
Q. Mr. Hupp, you found one of or two of Mr. McVeigh's prints
on the Wal-Mart receipt, Government's Exhibit 265, did you not?
A. Yes, sir (sic).
Q. Now, if you had done this computer search that Mr. Tigar is
suggesting on that receipt on April 19, 1995, would you have
ever identified Timothy McVeigh's prints?
A. No, I would have not.
Q. Why not?
A. Mr. McVeigh was not in the database.
MS. WILKINSON: No further questions, your Honor.
MR. TIGAR: No questions, your Honor.
THE COURT: All right.
MS. WILKINSON: He's excused.
THE COURT: Are you sure?
MS. WILKINSON: Yes.
MR. TIGAR: No, your Honor, he's excused. I think
we've taken care of it.
THE COURT: All right. You may step down. You're
excused.
THE WITNESS: Thank you, your Honor.
THE COURT: Next, please.
MR. MACKEY: Yes, Judge. We'll call Ron Clutter.
THE COURTROOM DEPUTY: Raise your right hand, please.
(Lawrence Kingry affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
THE WITNESS: Yes, ma'am.
THE COURTROOM DEPUTY: Would you state your full name
for the record and spell your last name.
THE WITNESS: Lawrence L. Kingry, K-I-N-G-R-Y.
THE COURT: I thought we were going to get
Mr. Clutter.
MR. MACKEY: We did, and the break in communication is
fine, Judge. We'll go ahead and proceed with Mr. Kingry.
THE COURT: All right.
MR. ORENSTEIN: Can I just have a moment? I didn't
expect to be up here exactly now, your Honor.
Lawrence Kingry - Direct
DIRECT EXAMINATION
BY MR. ORENSTEIN:
Q. Good afternoon, Mr. Kingry. It is Mr. Kingry; correct?
A. Yes, sir, that is correct.
Q. Sorry for the confusion.
Where do you live, sir?
A. Edmond, Oklahoma.
Q. And were you born and raised in Oklahoma?
A. No, sir, I was not.
Q. Where are you from originally?
A. Originally from Wichita, Kansas.
Q. What's your education, sir?
A. B.A., economics, Wichita State University, some
postgraduate work.
Q. Do you have a family back in Oklahoma?
A. Yes, sir, I do.
Q. Married?
A. Yes, sir, I am.
Q. How many kids do you have?
A. I have two children.
Q. Now, how are you currently occupied?
A. At the present time I'm employed by the State of Oklahoma.
Q. Doing what for them?
A. I'm a firearms instructor at the state police academy.
Q. How long have you been so employed?
Lawrence Kingry - Direct
A. Approximately a year and five months.
Q. So sometime in '96?
A. Yes, sir, that's correct.
Q. Prior to working for the State of Oklahoma, what did you
do?
A. I was employed as a special agent for the United States
Secret Service.
Q. And how long were you employed by the Secret Service?
A. Over 20 years.
Q. Were you employed by the Secret Service in 1995 -- in April
of 1995?
A. Yes, sir, I was.
Q. And what was your position there?
A. Special agent.
Q. Where were you assigned when you were working for the
Secret Service?
A. The Oklahoma City field office.
Q. Now, before we describe that a little more, could you tell
the jury the services provided by the United States Secret
Service.
A. Part of my past duties consisted of the protection of the
president and vice president of the United States and other
dignitaries, the detection and suppression of counterfeit
activity, the investigation of stolen and forged government
securities.
Lawrence Kingry - Direct
Q. Now, you've talked about your own personal duties. The
duties that you had: Are they shared by other agents of the
Secret Service, protection and criminal enforcement?
A. Common duties, yes, sir.
Q. When you were working for the Secret Service in Oklahoma,
where specifically were you stationed?
A. At the Murrah Building, 200 N.W. 5th Street in Oklahoma
City.
Q. What part of the Murrah Building were you in?
A. Ninth floor, sir.
Q. How many people were employed on the ninth floor of the
Murrah Building in April of 1995?
A. We had a complement of 12 full-time employees and one
part-time employee.
MR. ORENSTEIN: If I might have Government's Exhibit
952, the floor plan of the ninth floor, which is in evidence,
on the screen, please.
BY MR. ORENSTEIN:
Q. Do you have that in front of you, Mr. Kingry?
A. Yes, sir, I do.
Q. Would you use your light and -- you should have a pen
connected by a wire there. Reach under the screen and right on
the surface of the computer screen and show the ladies and
gentlemen of the jury what the layout of the Secret Service is
on the ninth floor and who worked where.
Lawrence Kingry - Direct
Why don't you just start just getting off the elevator
and work your way into the office.
A. Elevators were here, walk down the hallway through a set of
doors and into the entranceway/reception area of the Secret
Service office.
Q. And if you go through touring the office.
A. This X, not a very good X, represents the conference room.
This X represents where the special agent in charge
worked, his office.
This room here was Linda McKinney's office.
And this area right here Kathy Seidl worked. She was
a secretary.
ASAC Alan Whicher -- this was his office.
Q. Let me interrupt you. What is ASAC?
A. Assistant special agent in charge, sir.
Q. You can go on with your tour of the office, there.
A. This office was occupied by Special Agent Mickey Maroney
and Special Agent Don Newsom.
This office was occupied by myself and Agent Gary
Simpson.
This office was the office of Agent Don Leonard.
The office of Agent Mahaffey, Gary Mahaffey.
This office here was occupied by Special Agent Alan
Dotter and Special Agent Cynthia Campbell-Brown.
This was our interview room.
Lawrence Kingry - Direct
This was the break room or processing room.
This represents the office vault, and this was the
file room.
Q. Now, Agent Kingry -- I'm sorry -- Mr. Kingry. You're no
longer an agent. Is that right?
A. I'm retired, yes, sir.
Q. Let me direct your attention to the morning of April 19,
1995. I think you told us you were still employed by the
Secret Service at that point?
A. Yes, sir, that's correct.
Q. Did you go to the Murrah Building and go to work that
morning?
A. Yes, sir, I did.
Q. Can you tell the jury what you did that morning when you
went to work.
A. I arrived at approximately 7 a.m. and went to my office. I
was the first one actually to go into the office that morning;
and later Don -- Agent Don Leonard came into my office and we
had a discussion.
And at approximately 15 minutes till 9, I left the
office and walked to the courthouse across the street.
Q. Now, let me ask you before you went to the courthouse at a
quarter to 9, had you seen anyone else arrive at your office?
A. Yes, sir.
Q. Who else was there?
Lawrence Kingry - Direct
A. Assistant Special Agent Alan Whicher; Special Agent Mickey
Maroney; Don Leonard, I've already mentioned; Special Agent
Cynthia Campbell-Brown; Office Manager Linda McKinney, and
Secretary Kathy Seidl.
Q. Were all of those persons present when you left the office
at a quarter to 9?
A. Yes, they were.
Q. You mentioned some of the people who worked there as being
present. Others who worked for the Secret Service were not
there that morning?
A. No, sir, they were not.
Q. At that time were you expecting a visit by former President
Bush to Tulsa?
A. Former President Bush was going to visit Tulsa the next
day.
Q. And were some of the agents absent in connection with that?
A. That is correct.
Q. What was Cynthia Campbell-Brown doing that morning?
A. That morning she was preparing for -- she was preparing to
leave for Tulsa for the visit of former President Bush.
Q. As part of the protection detail?
A. Yes, sir, that is correct.
Q. And what was Agent Whicher doing that morning?
A. Alan Whicher was working with Special Agent Mickey Maroney
on one of their projects, actual