The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Monday, December 1, 1997 (morning)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TERRY LYNN NICHOLS,
Defendant.
REPORTER'S TRANSCRIPT
(Trial to Jury: Volume 99)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 8:45 a.m., on the 1st day of December,
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, and
AITAN GOELMAN, Special Attorneys to the U.S. Attorney General,
1961 Stout Street, Suite 1200, Denver, Colorado, 80294,
appearing for the plaintiff.
MICHAEL TIGAR, RONALD WOODS, and JANE TIGAR, Attorneys
at Law, 1120 Lincoln Street, Suite 1308, Denver, Colorado,
80203, appearing for Defendant Nichols.
* * * * *
PROCEEDINGS
(In open court at 8:45 a.m.)
THE COURT: Be seated, please.
Good morning.
MR. TIGAR: May I approach?
THE COURT: Yes.
(At the bench:)
(Bench Conference 99B1 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
(In open court:)
(Jury in at 8:48 a.m.)
THE COURT: Members of the jury, good morning.
JURORS: Good morning.
THE COURT: You will recall that when we recessed on
Friday, we were hearing testimony from agent Steven Burmeister,
and we will continue with his testimony this morning.
Agent Burmeister, if you'll resume the stand under the
oath taken last week --
THE WITNESS: Yes.
THE COURT: -- we'll continue.
(Steven Burmeister was recalled to the stand.)
THE COURT: Miss Wilkinson.
MS. WILKINSON: Thank you, your Honor.
DIRECT EXAMINATION CONTINUED
BY MS. WILKINSON:
Q. Good morning, Agent.
A. Good morning.
Q. When you left on Friday, you were about to tell us about
your examination of a piece of wood fragment from the bombing
scene; is that right?
A. Yes.
Q. And I believe you were about to discuss some photographs
that you had taken?
A. Yes.
Steven Burmeister - Direct
Q. Could you just remind the jury when you took those
photographs?
A. The photographs were taken after I received the items in
April, just after April 28, 1995.
Q. Had you removed anything from Government's Exhibit 664, the
portion of the truck, before you took those photographs?
A. No. I'm sorry, I removed various small particles for some
color testing prior to the photograph.
Q. Did other particles or crystals remain on the wood
fragment?
A. Yes. Yes.
MS. WILKINSON: Your Honor, may I exhibit those
photographs to the jury?
THE COURT: Yes, what part --
MS. WILKINSON: They're the ones we moved in on
Friday. They're a series, and they're large photographs.
THE COURT: How are they designated?
MS. WILKINSON: I believe they're 831 through 835.
I'd have to go up to the front to --
THE COURT: For the record, we need to know which --
MS. WILKINSON: Sure.
There's Government Exhibits 830 through 835.
THE COURT: All right. Yes, you may use them.
They're in evidence.
BY MS. WILKINSON:
Steven Burmeister - Direct
Q. Agent Burmeister, if you can grab that wood pointer. Let's
start, if we could, with Government's Exhibit 834. Did you
take this photograph?
A. Yes, I did.
Q. Can you tell the jury what they're looking at in this
photograph.
A. This is a photograph, a black-and-white photograph of what
I'm designating as Q507, the Government Exhibit 664. It's the
wooden side of that particular fragment.
Q. Now, could you take 664 out of the bag and hold it up to
the photograph and show the jury how you match it up to the
edge of the photograph. You can stand up from your seat.
A. Okay. Here we see the actual fragment itself, 664, and if
I'm holding it up next to it, the top as we follow along the
top is just up here on this portion here. Let me point it out.
Along in here, all the way, is this particular edge right in
there. So you can sort of it hold that way.
Q. Now, if we turn that over to see what we would be looking
at if you could flip this photograph, what is the color is the
side of this large portion here on the upper right-hand corner?
A. We would see that it would be the red side over on this
side as we see on this specimen.
Q. So this portion would be what color, if you could turn it
over?
A. That would be the yellow side.
Steven Burmeister - Direct
Q. And did you examine this entire exhibit under the
microscope?
A. Yes, I did.
Q. Did you focus on particular areas of Government's Exhibit
664 when you were looking at it under the microscope?
A. Well, I sequentially looked at the entire item back and
forth as if you're mowing grass, you would go sequentially back
and forth. That's the same technique, so I cover every square
inch of that item.
Q. Did you find certain areas of interest when you looked at
Government's Exhibit 664?
A. Yes, I did.
Q. Did you photograph those areas?
A. Yes.
Q. Let me show you 835. Did you take that photograph?
A. Yes, I did.
Q. What are we looking at here?
A. It's the same specimen, Q507. It's an enlarged area. Now
we're looking closer onto the surface, but it's this general
area right here that I wanted to focus in on.
Q. Why is that?
A. It's in this general area right here I started noticing a
line of crystalline material, some embedded but on the surface
of this particular wooden area.
Q. Was there just one crystal here or numerous crystals?
Steven Burmeister - Direct
A. No, there was a whole series of crystals all the way
through here and also extending down this particular line and
some actually in here.
Q. How were the crystals attached to the wood fragment, Q507?
A. Some of them were actually down inside the wooden area,
embedded into the surface. Some were on the top of it over in
this area, and they were adhering to the particular material.
Q. Did you use a certain term to describe how these crystals
were -- or how you observed the crystals attached to Q507?
A. Yes, I did.
Q. What is that?
A. In my notes I described them as a glaze on the surface, and
that's generally a glaze being just a covering over this
particular area.
Q. Now, I'm going to show you 832. Is this an enhancement of
what we were just looking at?
A. Yes, it is.
Q. And explain to the jury what this is.
A. Now we're actually looking closer at the surface. We've
magnified the actual image with the microscope, looking deeper
and closer into the material. And we can see right along here,
this deposit on the surface right here, the crystalline
particles; each little, tiny particle is a crystal itself. And
they're sort of clear, very much like a small particle of sugar
or salt, but that's what it would look like on the surface
Steven Burmeister - Direct
here. And you can see those little individual particles.
Q. How did you distinguish between these little particles and
little particles we see up in this area?
A. That was part of the initial testing with the color spot
test. I talked on Friday about diphenylamine where we could
take an individual particle and then react it with this
chemical and look for the color response. And in this case, a
deep color was produced indicating that there was a strong
oxidizer present, and that allowed me to go to the next step.
So sequentially testing some of these particles all the way
through, and especially in this particular area, some even up
in here, were giving me this strong blue color.
Q. Did you examine these crystals in this area and up here for
their crystalline structure?
A. Yes.
Q. Did you see similarities in the crystalline structures of
some of these small particles that you pointed out to the jury?
A. Yes.
Q. Agent Burmeister, did you also take color photographs of
this -- Government's Exhibit 664?
A. Yes, I did.
Q. Let me show you 830. What is this?
A. This is a color photograph of the same surface on
Government Exhibit 664 or what I'm calling Q507. But again
it's in this particular area; we see the deposit all the way
Steven Burmeister - Direct
along in this line and some, as we saw on the previous photo,
up in -- into this area and some down in here. But it's
principally along this area, but it's a color photograph of the
same material.
Q. Were the crystals that you found glazed on Q507 in this
general area here?
A. Yes.
Q. Did you find them on the entire Government's Exhibit 664?
A. No.
Q. And here is Government's Exhibit 831. Does this focus on
that same upper right-hand portion of Q507?
A. Yes. It's now we're coming away from the object. We're
still focusing on this particular area right in here. We look
at the particular item itself. We're actually focusing on this
particular spot right in here. I always like to -- if
you're -- if you have this item and you're trying to compare it
to the photo, not only the ridges across the top, but this
little indentation right here is sort of a good landmark to try
to key in on where the particular item is. But it's right
along this ridge right here.
Q. Does the color photograph assist you in any way in seeing
the contrast with the crystals?
A. It does assist in that -- I prefer the black and white, but
the color does show some depth to the particular wood.
Q. Why do you prefer the black-and-white photographs?
Steven Burmeister - Direct
A. Because I can see the crystals a little bit better on the
photo.
Q. After you took these photographs, Agent Burmeister, did you
conduct a series of tests on the crystals that you found on
Government's Exhibit 664?
A. Yes.
Q. And did you take notes as to the results of that testing?
A. Yes, I did.
Q. Did you analyze the data that you received?
A. Yes, I did.
Q. Did you come to some conclusions about the crystal?
A. Yes.
Q. And have you formulated a chart for the jury that
summarizes the testing and your results?
A. Yes.
Q. Let me show you Government's Exhibit 1744. Do you
recognize that?
A. Yes, I do.
Q. Is that the chart that you prepared?
A. Yes.
Q. Or assisted in preparing?
A. Yes.
Q. And does it summarizes the tests and the results of those
tests that you performed on the crystals on Q507?
A. Yes, it does.
Steven Burmeister - Direct
MS. WILKINSON: Your Honor, we'd offer 1744 under Rule
1006 as a summary chart of Agent Burmeister's results.
MR. TIGAR: May I inquire from here, your Honor?
THE COURT: Certainly.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. Mr. Burmeister, I've got one, two, three, four, five, six,
seven, eight, nine, ten, eleven tests reflected here; is that
correct, sir?
A. I'd have to see the chart to verify that, but it sounds
correct.
Q. Okay.
There you are.
A. You're right. Yes.
Q. And each one of these tests is the subject of a lab report;
correct?
A. It's incorporated within the particular laboratory report
as far as the data that's derived from these tests and are used
to interpret to come to the result that's in the laboratory
report.
Q. Okay. So just one report that has all these tests in it?
A. The results of all these tests were incorporated together
to form the opinion which is in the report.
MR. TIGAR: Your Honor, no objection for demonstrative
purposes. It doesn't meet 1006.
Steven Burmeister - Voir Dire
THE COURT: Yes, it's not 1006. It includes his
opinions.
MS. WILKINSON: We'll show it for demonstrative
purposes.
THE COURT: All right.
DIRECT EXAMINATION CONTINUED
BY MS. WILKINSON:
Q. Will this assist you, Mr. Burmeister, in explaining to the
jury the testing you did on Q507?
A. Yes.
Q. Now, first, Mr. Burmeister, you told us that you took
photographs of the crystals that you found; isn't that right?
A. Well, the initial testing was doing a microscopic
examination, and several particles which were
interesting-looking particles were removed. A color test was
performed on those particles. Subsequent to that, a photograph
was taken of the area.
Q. The results of that first test showed you there was a
reading for a oxidizer?
A. Yes.
Q. And can you tell us again what an oxidizer is.
A. An oxidizer is a material that will readily promote the
release of oxygen. In the world of explosives, it plays a very
important part because materials that do release oxygen are
those that look for a fuel source which can come together to
Steven Burmeister - Direct
form an explosive material.
Q. Now, when you took the photographs of Q507 or Government's
Exhibit 664, why did you take photographs?
A. The purpose was to record its actual location and to show
its actual crystalline form on the particular surface.
Q. Did any of the crystals that you photographed survive on
Q507 today?
A. No.
Q. Okay. Did -- after you finished conducting your tests on
the crystals you found on the exhibit, did you send that
exhibit in the FBI Laboratory for further testing?
A. I returned it to the individual who presented it to me, and
it went for further testing, yes.
Q. And would that further testing -- could that further
testing have affected the crystals that you found?
MR. TIGAR: Object to what could have been.
BY MS. WILKINSON:
Q. If you know.
MS. WILKINSON: Excuse me, your Honor.
THE COURT: Okay.
BY MS. WILKINSON:
Q. Agent Burmeister, if you know, could that testing have
affected the crystals on Q507?
A. It's entirely possible, yes.
MR. TIGAR: Objection as to possibility.
Steven Burmeister - Direct
THE COURT: Yes, it's stricken as to possibility.
BY MS. WILKINSON:
Q. Are you aware of Mr. Buechele's testing on Q507?
A. Yes.
Q. And did he do a paint analysis?
A. He looked at the coating material that was on the surface,
the opposite painted surface.
Q. And only if you know, could that affect the crystals on
Q507?
THE COURT: Well, again, the question here is did it,
not could it.
BY MS. WILKINSON:
Q. Did it, Agent Burmeister?
THE COURT: If you know from your own knowledge.
THE WITNESS: I don't know for a fact if that was the
particular part of the examination that removed or caused it to
disappear.
BY MS. WILKINSON:
Q. Okay. But the crystals did disappear from Q507 since you
did your testing; is that right?
A. Yes.
Q. And do the photographs show the crystals that you actually
saw under the microscope?
A. Yes.
Q. Can you describe for the jury generally the crystalline
Steven Burmeister - Direct
structure of those particles that you examined under the
microscopes?
A. The particles themselves looked like crystals of table salt
or sugar. That would be the size -- not the size, but much
smaller than that, but still it's a crystalline form as if we
looked at sugar or table salt.
Q. Are you familiar with the crystalline structure for
ammonium nitrate?
A. Yes, I am.
Q. And what were -- if you -- can you tell us whether the
results of your microscopic examination of the crystalline
structures of those particles on Q507 was consistent with your
knowledge of the crystals of ammonium nitrate -- the
crystalline structure of ammonium nitrate?
A. Certainly was consistent with it, yes.
Q. What test did you conduct next?
A. The next test that I conducted was a polarized light
microscopy examination of the particle. It's again using a
microscopic test, but it's looking at the particular crystals
themselves, using a specialized microscopic examination.
Q. What were the results of those tests?
A. It was consistent with ammonium nitrate.
Q. And what are you looking for in that type of test?
A. Essentially you're looking at the material's ability to
essentially bend light. Essentially that's what you're looking
Steven Burmeister - Direct
for.
Q. Did you cause another test to be conducted after that?
A. Yes.
Q. What test was that?
A. After that was conducted, a FTIR or Fourier transform
infrared spectroscopy examination was conducted.
Q. Can you tell us generally what FTIR does.
A. I know that's a mouthful. It's essentially taking the
material and passing a beam of infrared energy through the
material and sort of capturing how much of that infrared beam
is actually absorbed into the material itself, and you can
record that on the opposite side and measure a spectrum, if you
will, a fingerprint pattern of how much of that light is
absorbed.
Q. How does that assist you in identifying what the particle
is?
A. You can run the sample and then run a known sample and
compare the two and determine whether it's consistent with that
particular spectrum.
Q. At that point did -- had you concluded that the crystals
were consistent with ammonium nitrate?
A. Yes.
Q. Did you inform the operator of the FTIR machine of that
conclusion?
A. Yes, I did.
Steven Burmeister - Direct
Q. And did she compare a known sample of ammonium nitrate with
the crystal -- or the crystals that you gave her from Q507?
A. Yes.
Q. What were the results of that comparison?
A. That it was consistent with ammonium nitrate.
Q. Did you cause further testing to be conducted?
A. Yes.
Q. What type of tests were conducted after that?
A. Next it was a ion chromatography test, basically to
determine what ions were present in the particular substance
itself.
Q. Now, are ions different from the crystal itself?
A. Yes.
Q. How is that?
A. Once you take a material and place it into water, the
material will break down into its ions, and the ions are
basically charged particles. If we look at something like
sodium chloride, sodium has a positive charge to it. It's
entire positive charge. Chloride has a negative charge. And
it works the same way as batteries or magnets where they will
attract one another, the positive and the negative will attract
one another. In the world of chemistry, we look at the same
way we look at batteries. The positive side of any cat -- any
ion is considered a cation, and it's also consistent with
batteries where it's called cathode on a battery. The negative
Steven Burmeister - Direct
side of a particular ion is called an anion, and it
corresponded to a battery's anode, so it's the same way for
electrical impulses, but ions are formed when material are
placed into water, they will break down into their charged
particles.
Q. Did you break down some of the ammonium nitrate crystals in
that type of testing?
A. Yes. Now, ammonium nitrate, when placed into a water
solution, will break down into ammonium ions which have a
positive charge and nitrate ions that have a negative charge.
Now, they're floating around in the solution. We have to find
a way, now, to analyze those particular ions.
Q. What were the results of that testing?
A. Based on ion chromatography for the cations, it was
identified that ammonium ions were present in that particular
material.
MR. TIGAR: Your Honor, I'd like some -- I object to
the form of the question and answer. We don't know who's doing
the testing here. It's in the passive voice and no basis or
foundation for the opinion.
MS. WILKINSON: I believe I said "under your
direction" or "caused it to be conducted" --
BY MS. WILKINSON:
Q. Agent Burmeister, did you conduct every one of these tests
yourself?
Steven Burmeister - Direct
A. No.
Q. And is that your policy in the laboratory?
A. Yes.
Q. Do you have technicians who operate instruments for you?
A. Yes.
Q. And who interprets the results of that instrument testing?
A. I interpret the results, yes.
Q. Are you the only one who did that for Q507?
A. Yes.
Q. Now, did you conduct these tests on the ions, yourself?
A. I had an operator conduct the actual examination on the
instrument under my direction.
Q. And did you review the results?
A. Yes.
Q. And did you interpret the results?
A. Yes, I did.
Q. And what did you find?
A. The material for the cation analysis identified ammonium
nitrate -- ammonium ions. When the anions were identified, it
was identified as nitrate ions.
Q. Did you cause any other tests to be -- well, let's stop
there.
In your laboratory, do you make different kinds of
findings when you're trying to identify substances?
A. There are different findings, yes.
Steven Burmeister - Direct
Q. Do you sometimes say something is consistent with?
A. Yes.
Q. And do you sometimes actually identify something as a
substance?
A. Yes.
Q. What is the difference between "consistent with" and
"identified"?
A. The "identified" is an absolute. We have two alternative
technologies coming up with results, and the two must match
together for an identification. These are two different
technologies. If I have the same finding with those two
different technologies, it's an identification. When I have
one finding, I will consider that consistent with the material
being present.
Q. All right. At this point in your examination, before you
conducted further testings, were you able to identify the
crystals as ammonium nitrate?
A. At this point in time, I would have considered it an
identification, yes.
Q. Despite that, did you conduct further testing?
A. Yes.
Q. Or cause further testing to be conducted?
A. Further testing was conducted.
Q. Did you work with any other examiner in your laboratory at
that point?
Steven Burmeister - Direct
A. Yes.
Q. Who did you work with?
A. A Special Agent Bruce Hall.
Q. And what is his area of specialty?
A. He is a minerologist and a microscopist.
Q. And why did you work with him on Q507?
A. He has an ability to actually look at the microcrystalline
areas of particular materials, and I wanted to see what his
opinion was on looking at the particular material itself.
Q. Did you both look under the microscope at the crystals on
Q507?
A. Yes.
Q. And what additional test did he assist you with?
A. One of the things that he was able to conduct -- one, he
has the abilities with the various reagents and chemicals to
conduct this, but to make the determination of the actual
refractive index, and when I talked about how much light was
actually bent by that particular material, that's what I call
refractive index. It's a very specific number for particular
materials, especially for crystalline materials.
And one of the things that you have to do to determine
this refractive index is have a series of known materials to --
known refractive indexes that you compare to. He has all of
those chemicals, and that's the reason why I went to him,
because he had all the chemicals present, and I did it side by
Steven Burmeister - Direct
side with him.
Q. Did you have additional testing done outside of the FBI
Laboratory?
A. Yes, I did.
Q. What did you do?
A. A particle of material was analyzed using a technique
called x-ray diffraction, but it utilizes a special type of
tool with x-ray diffraction, called a Gandolfi camera.
Q. Does the FBI Laboratory have a Gandolfi camera?
A. No, it does not.
Q. Where did you go to have this type of analysis done?
A. The Smithsonian Institution has a Gandolfi camera which we
used to conduct that particular test.
Q. How -- and just simply if you could -- how does a Gandolfi
camera operate?
A. The Gandolfi camera operates by taking an actual tiny
particle, an actual crystal itself, placing it into the
instrument, and striking that little, tiny particle with a beam
of x-rays. And if we look at a simple analogy of taking a
flashlight and shining it onto the surface of the mirror, we
see that the beam can strike the mirror and be reflected off at
a different angle. Well, if you imagine a crystalline material
as having hundreds and thousands of little, tiny mirrors built
up inside and if you shine the flashlight on that particular
material, the beams will be diffracted or bent off at different
Steven Burmeister - Direct
angles. That's what's going on inside the particular material
when you strike it with a beam of x-rays. The x-rays are bent
off at various angles. The angles at which it can be bent off
can be analyzed, and that forms a fingerprint pattern for a
particular substance.
Q. And was a picture of this fingerprint taken of the crystals
or a crystal from Q507?
A. Yes.
Q. And did you and others compare that to a known photograph
of ammonium nitrate crystals?
A. Yes.
Q. And what were the results?
A. It was consistent with ammonium nitrate.
Q. Did you cause any other testing to be done on crystals from
Q507?
A. That was the end of the examination.
Q. Did you look at Q507 itself for any high explosives?
A. Yes, I did.
Q. And what were the results of those tests?
A. They were negative for any of the explosives we tested for.
Q. And did that assist you in coming to the conclusion that
the crystals on Q507 were ammonium nitrate?
A. Yes.
Q. How did it assist you?
A. It essentially ruled out any other particular materials
Steven Burmeister - Direct
that were present.
Q. Did you find any other elements on Q507?
A. One of the things that was also conducted was an elemental
examination of the materials itself.
Q. What elements did you find on Q507?
A. The trace elements that were present on the crystalline
material on Q507 were silicon, aluminum, and sulfur.
Q. After conducting all these tests, Agent Burmeister, what
were your conclusions as to the identification of the crystals
on Government's Exhibit 664, what you refer to as Q507?
A. The crystalline material on Q6 -- Item 664 or Q507 was
identified as ammonium nitrate.
Q. You are -- are you familiar in your work with explosives
that contain ammonium nitrate?
A. Yes.
Q. And what type of explosives contain ammonium nitrate?
A. There's wide number of explosives that actually contain
ammonium nitrate. There's dynamites that contain ammonium
nitrate. There's slurries and emulsions which are explosives
out on the market today. There's various blasting agents --
for example, ammonium nitrate and fuel oil which is ANFO --
which contains ammonium nitrate.
Q. Now, after you came to these conclusions that you could
identify the crystals as ammonium nitrate, did you review the
chain of custody for Q507, Government's Exhibit 664?
Steven Burmeister - Direct
A. Yes, I did.
Q. And did you determine whether the chain of custody could
have contaminated -- or the handling of Government's Exhibit
Q507 or 664 could have contaminated that item?
A. Yes.
Q. What were your conclusions?
A. That it would not have contributed to any contamination on
that item.
Q. Knowing that -- you see Government's Exhibit 664 in front
of you; correct?
A. Yes, I do.
Q. And do you see the two plastic bags, 664A and B?
A. Yes.
Q. Was 664 contained in those plastic bags when you received
it?
A. They were in these plastic bags when I received it, yes.
Q. In your opinion, could the ammonium nitrate crystals have
penetrated the plastic bag to land on Government's Exhibit 664?
A. No.
Q. And could they have appeared in that crystalline structure
if they had somehow penetrated the plastic bag?
A. No.
Q. During your work on this case, did you also examine plastic
fragments that were taken from the bombing crime scene?
A. Yes.
Steven Burmeister - Direct
Q. I'm going to show you 785, 785A, 786, and 786B. Excuse me,
I'm not going to show you 785A. The others are 785, 786, and
786B. Did you recognize those?
A. Yes, I do.
Q. And did you -- are they also designated Q112 and Q116?
A. Yes.
Q. Were they tested by the Chemistry and Toxicology Unit?
A. Yes, they were.
Q. Were they tested for high-explosives residue?
A. Yes.
Q. And during that testing process, what type of solution did
you put on the plastic fragments?
A. During the testing process, there would have been two
solutions that were placed onto them. The first one would have
been water. The second one was methanol.
Q. And would those solutions have consumed any powders or any
particles that were on the outsides of the plastic fragments?
A. Yes, that's -- would have been the purpose of the
solutions.
Q. Do you recall when you conducted that testing for
high-explosive residue on the plastic fragments?
A. Offhand, the exact date, I'm not sure of.
Q. Do you recall the month?
A. Without checking my documents, I'm a little -- having
trouble right at the moment recalling the exact date.
Steven Burmeister - Direct
Q. If I showed you a document to refresh your recollection in
chain of custody, would that assist you?
A. Yes.
Q. Does that refresh your recollection?
A. Yes, it does.
Q. When did you test the Q112 and Q116 for high-explosives
residue?
A. It would have been shortly after April 26, 1995.
Q. And did you find any high-explosives residues on the
plastic fragments?
A. No.
Q. Agent Burmeister, from examining Q507 and identifying the
crystals as ammonium nitrate, can you identify or can you tell
the jury how those crystals were placed on Government's Exhibit
Q507?
A. The crystals were on the surface of the material as well as
embedded up inside the wooden area of the material, penetrated
some parts of the material itself.
Q. Based on that examination, can you tell the jury whether or
not those crystals could have been reformed; that is, that they
were applied there from the rain or some water solution instead
of embedded in some other way?
MR. TIGAR: Object to what could have been, your
Honor.
THE COURT: Perhaps you ought to use "consistent
Steven Burmeister - Direct
with."
MS. WILKINSON: I'll rephrase it. Thank you.
THE COURT: Thank you.
BY MS. WILKINSON:
Q. Mr. Burmeister, can you tell us whether the crystalline
structure that you saw of the ammonium nitrate on Q507 is
consistent with the reformulation of ammonium and nitrate on
that Government's Exhibit 664 from a water solution, or from
rain, or from something like that?
A. It's not consistent with that crystalline form, no.
Q. Why is that?
A. The crystalline form of recrystallized ammonium nitrate is
in a different visual format. It's more of a flattened, all
one segment of crystalline development. It's not individual
particulate crystals. It's just a flattened all-one-mass that
usually is formed.
Q. So were the crystals that you saw in Government's 664 or
Q507 consistent with being in the original crystalline
structure of ammonium nitrate?
A. Yes.
MS. WILKINSON: We have no further questions, your
Honor.
THE COURT: All right.
Mr. Tigar.
CROSS-EXAMINATION
Steven Burmeister - Cross
BY MR. TIGAR:
Q. Good morning, Agent Burmeister.
A. Good morning.
Q. In May of 1995 -- April, May of 1995, you were the sole
person qualified in the FBI Laboratory as an expert on
explosives; is that right?
A. No. That's not correct.
Q. Who else was?
MS. WILKINSON: Objection, your Honor, relevance.
THE COURT: Well, I don't know yet.
BY MR. TIGAR:
Q. Who else --
THE COURT: For this particular question, I overrule
the objection.
BY MR. TIGAR:
Q. Who else was qualified?
A. Mr. Kelly was partially qualified in the area of explosives
examination on bulk analysis. He was not qualified for the
residue side.
Q. In terms of explosives residues, were you the person best
qualified in the laboratory?
A. I would consider myself, yes.
Q. And since then you've been promoted; you're the acting
chief; is that right?
A. Yes.
Steven Burmeister - Cross
Q. So -- and you agreed that you should be acting chief;
correct?
MS. WILKINSON: Objection, your Honor.
THE COURT: Sustained.
BY MR. TIGAR:
Q. Well, I'm just saying, you're qualified to give the
opinions you've given; correct, sir?
A. The courts make that determination. But I feel so, yes.
Q. And are you able to tell the jury what the bomb that blew
up the Murrah Building was made of?
MS. WILKINSON: Objection, your Honor; that's beyond
his area --
THE COURT: Sustained.
BY MR. TIGAR:
Q. Well, let's start, sir. You identified some ammonium
nitrate on Q507; correct?
A. Yes.
Q. You tested Q507, Government 664 -- if we can take this
down, now. I'll put it up on . . .
You testified on direct examination that you tested it
for high-explosive residue; correct?
A. Yes.
Q. Why did you do that?
A. It's part of the entire protocol and procedure that I
follow. The materials will always be tested for the inorganic
Steven Burmeister - Cross
side as well as the organic side. The organics will fall under
the side of the high explosives.
Q. And you did that because you were trying to find out what
was in the device; right?
A. It is part of the test used to determine what explosives
are present on a particular item.
Q. Well, you testified, sir, on direct examination that you
saw the reports of the weather on the evening of the 19th; you
remember that?
A. Only from the television reports.
Q. Right. And you were concerned when you saw the weather
reports; correct?
A. Yes.
Q. Why were you concerned?
A. For me as a person who's involved with determining
residues, anytime something is deluged with rain, it's
certainly an environmental-type situation that I have to deal
with where potentially water-soluble explosives could be washed
off of particular items.
Q. And that . . . You dealt with that concern in part by
trying to test items at the scene on the underside; that is
correct, sir?
A. That is correct, yes.
Q. And you tested glass fragments; is that right?
A. Yes.
Steven Burmeister - Cross
Q. Did you pick up any foam?
A. Not off of the surface, but I did remove some foam from the
protected areas of vehicles.
Q. And did you test that for high-explosive residue?
A. Yes.
Q. Did you find any?
A. No.
Q. Did you pick up some plastic?
A. I don't recall whether I retrieved any particular plastic
pieces, myself.
Q. A number of plastic pieces were retrieved; correct?
A. Yes.
Q. And they were sent to your laboratory; correct?
A. Yes.
Q. How many of them were sent to your laboratory?
A. I have no idea the number of pieces of plastic.
Q. Hundreds?
A. I really can't come up with a number.
Q. Did Mary Tungol work under your direction?
A. Yes.
Q. Was she responsible for looking at the plastic?
A. I have no idea whether she was involved with that.
Q. Who washed the pieces of plastic that you have in front of
you with water and methanol?
A. That was myself.
Steven Burmeister - Cross
Q. Are those the only pieces that you washed?
A. I conducted residue examination on numerous pieces of
items, and the extraction practice with solvents was conducted
on many of those items.
Q. Well, my question was, sir, the pieces of plastic in front
of you, are those the only pieces of plastic from the crime
scene that you washed with water and methanol?
A. I really am not sure. There's a possibility other pieces
were examined. I'm not sure.
Q. Well, what was the purpose, again, of your washing those
particular pieces?
A. For explosive residues.
Q. And you didn't find any; correct?
A. That's correct. Yes.
Q. Now, you said that the purpose of washing them wasn't to
make them clean, was it?
A. No. My examination is for explosive residues.
Q. And is it your testimony that that washing removes every
trace of everything that was on there, makes them just
spotless?
A. No. There are materials still left behind. Even with the
rinsing, there's some materials -- for example, high
explosives -- that will be absorbed into particular plastic
material.
Q. And these plastics that you have there, they're distorted,
Steven Burmeister - Cross
they have little pockmarks on them; correct?
A. Well, I don't know what their original form was, but
they're irregular shapes.
Q. And is it your testimony that the washing you did would
remove everything that was on them, anything that might have
adhered?
A. It would not remove everything, but it would assist me in
conducting an examination.
Q. Now, did you also -- were you -- why were you looking at
plastic?
A. One of the many types of surfaces that are extremely useful
for explosive residue analysis happens to be plastic materials,
plastic, foams, rubber material, glass, pieces of metal -- all
are very good surfaces, including wood surfaces -- are very
good to capture and hold. Plastic, for example, is an
outstanding surface for high explosives because in the area of
organic explosives, likes dissolve in likes; and here we have a
case that likes, the high explosives, the organics, would be
soluble in plastic which are organic in nature.
Q. Well, when we talk about high explosives, you mean things
like what's contained in a blasting cap, PETN?
A. That's correct.
Q. Okay. And then there's the stuff that's inside that orange
shock tube that's in Primadet that's called HMX; correct?
A. Yes.
Steven Burmeister - Cross
Q. Is that a high explosive?
A. Yes, it is.
Q. Ammonium nitrate is not a high explosive, is it?
A. It can be considered a high explosive, yes.
Q. I'm talking about ammonium nitrate that I go to the
hardware store and buy in a bag. Is that considered a high
explosive?
A. Certain types of ammonium nitrate, certainly mixed with
certain fuel samples can instantly become a high explosive.
Q. Well, I didn't ask you that, sir. I asked you if ammonium
nitrate that I buy at the hardware store is a high explosive.
A. It could be.
Q. How do I get it to detonate?
A. There's various methods of detonating particular --
particular ammonium nitrate samples. The ammonium nitrate
itself has been shown under the right conditions can be
detonated, itself.
Q. By burning it; correct?
A. No. Burning will not actually detonate the ammonium
nitrate itself.
Q. What do I have to do to it to make it explode?
A. You have to have some other high force that's applied to it
in order for it itself to detonate.
Q. Such as by mixing fuel oil with it and putting a
charge-like blast right with it or putting dynamite with it?
Steven Burmeister - Cross
Would that -- that would make it explode, wouldn't it?
A. Dynamite would allow that combination, if properly mixed
with -- your ammonium nitrate and fuel oil is properly mixed.
Q. If I have a bag of ammonium nitrate in my house and I don't
have any fuel oil and I don't have any other things like that,
it's just fertilizer; correct?
A. Well, it's been shown that ammonium nitrate can be exploded
by itself under the right conditions.
Q. And what are -- I'm sorry, but you have to add something to
it; correct?
A. Not necessarily, no.
Q. What do you have to do to it, sir?
A. You again have to apply some sort of high energetic force
to have it detonate.
Q. What kind of high energetic force do you have to apply it?
A. It would have to be something that's a high explosive
that's operating in a strong force-like manner to break it
down.
Q. So it has to be ammonium nitrate plus something -- right --
plus some other chemical substance; right?
A. No, that's not necessarily correct.
Q. Well, how -- the high explosive you're talking about is
another chemical substance, isn't it, sir?
A. The other material that would be providing that extra force
in order to initiate is another high-explosive material.
Steven Burmeister - Cross
Q. Now, when you went to the crime scene, did you cause people
to look for plastics that were inside, underneath the protected
areas of the Murrah Building?
A. These would be areas that would be good locations to look
for.
Q. All right. And did you test any of those things for high
explosives that you found inside? Explosive residue?
A. There were numerous items submitted, the exact location of
those items, I'm not sure.
Q. Did you test a piece of blue PVC plastic that you found
inside the building?
A. I don't recall examining that.
Q. You know that there was one; correct?
A. I recall seeing various pieces of blue plastic that were
submitted for the polymer individuals. I never looked at those
particular items, myself.
Q. Well, was the plastic that you have in front of you
examined under your direction?
A. I examined these pieces of plastic, myself, yes.
Q. Well, how did you choose which ones you were going to
examine and which ones you were not?
A. Initially these were the items that were submitted to me
for examination for explosive residue.
Q. And who made the choice as to which ones you were going to
look at?
Steven Burmeister - Cross
A. I would have made the initial request for various pieces of
plastic for the examination, and they would have been provided
to me for examination.
Q. On what basis did you make your choice?
A. Again, plastic material being a good surface to adhere to
high explosives.
Q. Why were you looking for high explosives?
A. This is again part of the overall protocol that I will
follow on any crime scene or any bombing matter that I will go
to or any item.
Q. Well, you wanted to know what it was that caused that
ammonium nitrate, if it was ammonium nitrate, to detonate;
correct, sir?
A. No. My mission was to examine the particular item,
determine what explosives and explosive residues were actually
on the surface.
Q. You were the auxiliary examiner; correct?
A. That would have been the designation for the examination,
yes.
Q. And were you telling us that you were just doing the
technical work and that any conclusion drawing was to be left
to the principal examiner?
MS. WILKINSON: Objection, your Honor. Depending on
what he's talking about, on the residues or on the type of
bomb. That's two different questions.
Steven Burmeister - Cross
THE COURT: Overruled.
BY MR. TIGAR:
Q. You can answer.
A. I make all my determinations as to what chemicals are
present on the particular item. That's my job and that's my
responsibility. No one else makes any chemical determinations
other than myself.
Q. My question is: Did you leave to somebody else a decision
as to what the significance of your findings was?
A. I'm the one who determines what materials are actually on
the surface of that particular item, the significance of any of
the other materials that are present on it.
Q. Do you determine what to test for?
A. For the high explosives, is that what --
Q. Yes, sir.
A. I'm the one who determines what kinds of chemical analysis
will be examined -- will be performed on that particular item.
Q. There are many, many, many kinds of high explosives;
correct?
A. Yes.
Q. You can't test for all of them; correct?
A. That's right.
Q. You have to choose; correct?
A. Yes.
Q. And you did choose, didn't you?
Steven Burmeister - Cross
A. It's within the realm of material that we examined for in
the lab, yes.
Q. Right. No, sir. You chose -- correct -- which things to
test for; is that right?
A. It's within the scope of the actual procedures that we
followed. There's a limited number of items that we can
actually explore, but these are ones which are determined
within the protocol and procedure that I employ.
Q. Okay. I'm asking what Special Agent Steven Burmeister did.
Did you choose what things to test for?
A. This is part of the protocol --
THE COURT: Well, answer that question. Can't you
just answer the question he's asking you?
THE WITNESS: I don't individually take and choose out
of the entire protocol what items to test for. The protocol
will assume a variety of different items, and that's what the
protocol is, to encompass as many different materials as
possible.
BY MR. TIGAR:
Q. You followed the protocol, didn't you?
A. Yes.
Q. And the protocol said test for HMX, didn't it?
A. The test itself does not specifically say that.
Q. Did you test for HMX?
A. For this particular item, it's not within the screen of
Steven Burmeister - Cross
particular items.
Q. Did you test any of the items that were submitted to you in
connection with this test for HMX?
A. Yes.
Q. And you know that HMX is what lines the orange shock tube
of Primadet; correct?
A. Yes.
Q. You testified on direct examination that Primadet was found
in Mr. Nichols' home; correct?
A. Yes.
Q. Did you ever find any HMX?
A. I found HMX on the interior of the Primadet tube.
Q. Did you find any in the bomb scene residues?
A. No.
Q. Now, HMX consists of the -- the kind you had was the
200-millisecond delay No. 8 Primadet; correct?
A. I don't know that particular numeric numbers.
Q. Okay. You're familiar with what Primadet is; correct, sir?
A. Yes, I am.
Q. And you know that it -- it's made in different delays;
correct?
A. That, I'm aware of, yes.
Q. It's made in different lengths; correct?
A. Yes.
Q. And the particular kind you had that you found -- was found
Steven Burmeister - Cross
in Mr. Nichols' house was 60-foot length; correct?
A. That particular number, I'm not sure of without referring
to the actual item itself.
Q. All right. I'll find a photograph in a minute, sir.
If -- now, did you also look at Primadet for
Mr. Fortier's house -- or from -- that had been recovered from
someone that Mr. Fortier gave it to?
A. I don't recall the exact examination.
Q. Okay. Showing you now, sir -- thanks to Government
counsel -- what's been received in evidence as Government
Exhibit 141. Does that refresh your recollection, sir, about
the Primadet?
MS. WILKINSON: Excuse me, your Honor. Perhaps the
marshal could take down the easel. I believe it's blocking the
jury's view.
THE COURT: Okay.
MR. TIGAR: Thank you, Marshal.
THE WITNESS: I can't see the Government exhibit
number, but that's --
BY MR. TIGAR:
Q. All right. I'll show you the bottom. There it is, 141.
Do you see it?
A. Yes, I do.
Q. All right. Now -- and that's the 60-foot length; correct?
A. Yes.
Steven Burmeister - Cross
Q. And it has an "8" on the little tag; correct?
A. Yes.
Q. So we're talking about 60 foot. And this thing here that
I'm pointing to, that's a blasting cap; correct, sir?
A. Blasting cap or detonator, yes.
Q. Now, the way this works is that this end that I'm pointing
to down here, you can't see it, that's crimped; correct?
A. Yes.
Q. And in its natural state, if you don't handle it, the HMX
is not supposed to come out of there; correct? It's not
supposed to leak out?
A. I don't know that for a fact, but that's part of the
crimping, I would assume.
Q. Well, on direct examination, you said that you would not
expect that -- any HMX to get out of there because it was
sealed; do you remember saying that?
A. Yes.
Q. Well, is it true?
A. That would assist in allowing it to filter out. You'd have
to vibrate it or something like that in order to get it to come
out.
Q. Vibrate?
A. Yes.
Q. Okay. Now, are you familiar with this Primadet product? I
mean have you read up on it?
Steven Burmeister - Cross
A. I'm aware of the chemical materials that's on the interior
of the Primadet surface itself. Product information, I'm not
fully aware of.
Q. Do you know that there's a minute quantity of HMX on that;
correct?
A. Yes.
Q. And are you aware that when this stuff is used, that the
orange shock cord survives?
A. I'm not aware of that.
Q. Have you spoken in connection with your study of Primadet
that you told us about on direct examination to any
representatives of the Ensign Bickford Company that
manufactures this product?
A. No.
Q. And you've never read any of their product literature; is
that right?
A. Oh, I've read their product literature, but I haven't
spoken to any of the representatives.
Q. When you read the product literature, were you looking to
see whether or not portions of this would survive a blast?
A. No, I didn't look for that.
Q. As a person interested in examining residue from crime
scenes, is it important to you to know what sorts of things
survive and don't survive blast events?
A. Yes.
Steven Burmeister - Cross
Q. Did you find any orange plastic at the crime scene?
A. I personally don't recall looking for orange pieces of
plastic.
Q. Did -- was any orange plastic submitted to you?
A. I don't recall seeing any pieces of orange plastic.
Q. So we have no HMX -- correct -- at the crime scene?
A. None that I detected.
Q. Uh-huh. And we have no orange plastic; correct?
A. I don't know what was submitted as far as plastic. I never
received any orange plastic.
Q. You never saw any orange plastic, okay.
Now, did you find any pieces of timing mechanisms that
you tested for residues?
A. I don't know what you're referring to as timing mechanisms.
Q. Bomb -- bomb-type timing mechanisms?
A. Again, I don't know. I wouldn't -- I wouldn't be looking
at material that's specifically timing mechanism.
Q. Okay. Did you find any pieces of leftover pieces of the
metal, metal fragments consistent with blasting caps and
detonation cord?
A. Again, I don't recall any particular pieces that were
designated that way.
Q. Now, did you participate in the decision to send pieces of
plastic to Smurfit?
A. No.
Steven Burmeister - Cross
Q. Now, I want to ask you, sir, now about the chain of
custody. Did you review the testimony of Mr. Kelly and Agent
Wilson about how this matter -- how this item, Government
Exhibit -- if I can retrieve it from you.
These are the bags in which it was?
A. Yes.
Q. Government Exhibit 664: Did you review the testimony of
those agents as to how and where it was found?
A. No.
Q. Do you know -- Mr. Kelly has worked for you for a long
time; correct?
A. He's technically in the strata of the FBI. He has only
worked with me since January of this year when I assumed the
acting unit chief position. Prior to that time, he did not
work for me.
Q. He worked with you. He's worked with you for how long,
sir?
A. I would say for the last three years he's worked with me.
Q. Now, when you retrieve things -- when one retrieves
something in the field, okay, that's going to be tested for
residue, it is important to follow retrieval procedures;
correct?
A. There are -- there are procedures in place for collecting
particular items.
Q. And at this bombing crime scene, the procedure was that the
Steven Burmeister - Cross
item was supposed to be either marked on a map or photographed
in place; correct?
A. I did not designate any procedures like that, no.
Q. Do you know whether those are the proper procedures?
A. I don't know what the exact procedures that were actually
employed.
Q. My question is: Do you know whether it's proper to mark it
on a map or photograph it in place if you recover something at
a bomb crime scene, sir?
A. There is various techniques of doing it, one of which would
be to take a map and mark on a map where a particular item is.
It's not always the case.
Q. How about photography? Is it important to photograph
things in place?
A. It's not always the procedure to photograph things in
place.
Q. Have you looked at photographs of 664, where Mr. Kelly said
he found it?
A. Yes.
Q. And does that photograph help you in any way in your
testimony that you're presenting today?
A. The only way that it would help me would be the actual
configuration at which it was recovered.
Q. And what's helpful about that, sir?
A. The particular surface of the particular item was recovered
Steven Burmeister - Cross
in a mode where it was in a protected mode. The wooden side
would have been protected from the elements.
Q. Now, when you say "would have been protected from the
elements," are you assuming that the item came to rest there at
shortly after 9:02 a.m. on the 19th and remained in exactly the
same position until 10:30 a.m. on the 21st?
A. I don't know.
Q. Well, you told us it had been protected from the elements.
The picture of it shows that it's lying with this side, the
color side, up -- correct -- and that the red is lying on a
piece of metal? Do you remember that picture?
A. I vaguely recall that configuration, yes.
Q. Showing you now page 10 of what's been received in evidence
as Defense Exhibit E5.
Do you remember seeing that picture before?
A. If you can back off from the magnifications so that I could
see the entire photo.
Q. Yes, sir. There you are.
A. Yes, that photo looks familiar.
Q. Okay. And do you remember that as a photo taken at the
crime scene?
A. I know it was taken at the crime scene, yes.
Q. And do you know who took it?
A. No.
Q. Now, at -- were you walking around the crime scene on the
Steven Burmeister - Cross
21st?
A. Yes, I was.
Q. And you were walking around it on the 20th; correct?
A. Yes.
Q. Did you see the pink painted circles that were on the
ground on the 20th and 21st?
A. I saw them, yes.
Q. And did you know how those were made?
A. No.
Q. Did you have some understanding for your investigative
purposes as to how they were made?
A. No.
Q. Do you see what appears to be pink paint on the ground
here, where I'm pointing?
A. I see a pink area that you're referring to.
Q. Yes. Now, does Government Exhibit 664 have any pink on it?
A. My recollection of 664 has an area on the painted side that
would be of a pink color.
Q. All right. Right here; correct?
A. Yes.
Q. Is that correct? Okay.
Now, 664, it's fair to say -- excuse me -- it's what
used to be a regular piece of plywood; correct?
A. It was much thicker than that.
Q. As it started out, it was a thick piece. And it's fairly
Steven Burmeister - Cross
light; correct? It's light.
A. I'd agree with you, it's a light object.
Q. In a -- is it light enough that it could be picked up and
turned over in a windstorm?
A. I don't know.
Q. Okay. But we could lie it on the ground and blow on it or
run a fan; we could find out, couldn't we?
A. You could set up a test scenario to demonstrate it, I'm
sure.
Q. We could do it.
Now, is there a practice with respect to whether
items -- if they are going to be photographed, should be moved
before they're photographed?
A. There's no designated procedure written down that says one
way or the other that I'm aware of.
Q. All right. Well, from your standpoint, do you think it's
better to pick them up and put them in a bag and move them and
then try to remember where you move them back, or to take a
picture of them right where they were?
A. It's my opinion that I would photograph the item in place
in its original form. That's the best way to conduct that type
of recovery.
Q. And then the next thing is that of course the item should
be documented all the way through; correct?
A. There should be documentation with that particular item.
Steven Burmeister - Cross
Q. Now, you say that you received this item at the warehouse;
is that correct?
A. No.
Q. Who received it? Where did you first see it?
A. First time I saw the item, it was in a collection of other
items; but it was at the crime scene itself.
Q. And at that point did somebody give it to you?
A. Yes.
Q. So you received -- what did you do with it?
A. I took custody of the items and then transported those
items to the Evidence Control Center in Oklahoma City.
Q. So it is not the case that Agent Wilson took it to the
Evidence Control Center and gave it to you there? That didn't
happen?
A. My recollection is that I received custody of these items
at the crime scene.
Q. My question is: It is not the case, sir, that Agent Wilson
gave it to you at the Evidence Control Center?
A. He did not give it to me at the Evidence Control Center.
Q. Now, when you got to the Evidence Control Center, as you
remember it, you gave the items to whom, Mr. Elliott,
Mr. Norman?
A. No.
Q. To whom?
A. I signed it in to the custodian that was at the evidence
Steven Burmeister - Cross
center, and that was a June Buckner.
Q. And then the next time you saw it was when you opened up
your package; correct?
A. The next time I saw it was when I was at the FBI
Laboratory, and I received it from Mr. Mills.
Q. Now, did Mr. -- did you get it from Mr. Mills in a box in
which it had been shipped?
A. I received it in a envelope that it was packaged in, and
then packaged in plastic bags.
Q. Let me show you now what's been marked as Government
Exhibit E132. Is that what arrived with the package?
MS. WILKINSON: Excuse me, he said Government exhibit
marked 1 --
MR. TIGAR: I'm sorry, Defense Exhibit E132.
MS. WILKINSON: Could I take a look at that?
MR. TIGAR: Of course.
MS. WILKINSON: You're talking about this entire --
MR. TIGAR: I'm going to show it to him, yes.
MS. WILKINSON: This is different --
MR. TIGAR: We'll find out.
MS. WILKINSON: Your Honor, I'm going to object to him
showing this item. He's including two different documents.
THE COURT: Let the witness tell us what it is.
MR. TIGAR: Your Honor, I object to the sidebar. I'm
going to show the witness an item received from the Government,
Steven Burmeister - Cross
and I'm going to ask the witness what that is.
THE COURT: You may do that.
BY MR. TIGAR:
Q. Sir, this consists of a number of pages. And I just want
to ask you: Is page 1 something that you got when you got the
item in from Mr. Mills.
A. No.
Q. Okay. Then -- so -- do you recognize this item as being
any part of your records?
A. I would not keep this in my records, no.
Q. Okay. And do you have any personal knowledge as to how it
was made?
A. The front item of this was filled out at the time, at the
Evidence Control Center. Aside from that, I have no other
information where it was --
Q. So page 1 was filled out at the Evidence Control Center; is
that right?
A. Yes.
MR. TIGAR: We offer page 1. E132.
The Government may withdraw the other.
THE COURT: Well, these are loose pages.
MR. TIGAR: Yes, your Honor.
MS. WILKINSON: He's only offering page 1. If we
could just mark it as a separate exhibit, I would have no
objection.
Steven Burmeister - Cross
MR. TIGAR: Page 1 is what he has in front of him.
MS. WILKINSON: I'm sorry. I thought he was showing
me what he was offering.
MR. TIGAR: I'm showing the other pages of the
exhibit.
THE COURT: Let's take a look at what's being offered.
MR. TIGAR: Uh-huh.
MS. WILKINSON: Your Honor, I'm going to object to
this. I don't think this was the page that Mr. Burmeister said
was filled out. I think it was the first page with the
signature on it.
THE COURT: I heard him say it was filled out at the
Evidence Control Center.
Take a look at it again.
MR. TIGAR: Yes, I'm sorry, sir --
THE WITNESS: There is some more to --
MR. TIGAR: -- what was was, and what wasn't wasn't.
BY MR. TIGAR:
Q. Was this filled out at the Evidence Control Center: That
page I'm showing you here now?
A. That's my understanding this was, but there's more to it.
Q. All right. Well, then, let's took through and see what
more there is to it.
A. Okay. I'm familiar with this particular page.
Q. All right. That's a part of the chain of custody; correct?
Steven Burmeister - Cross
A. Right.
Q. And then page 3: Part of the chain of custody?
A. Uh-huh.
Q. And page 4: Part of the chain of custody; right?
And then these remaining pages are part of a search
log. Does that look like what that is?
A. It's information that I would not receive.
MR. TIGAR: All right, then. So, your Honor, we would
offer these four pages.
THE COURT: Perhaps we should staple them or something
to make them --
MR. TIGAR: Yes, I will. I could not do that until I
found out --
THE COURT: I understand.
MS. WILKINSON: Your Honor, may I just voir dire?
THE COURT: You may.
VOIR DIRE EXAMINATION
BY MS. WILKINSON:
Q. Agent Burmeister, you said you're familiar with this page.
Is that the page with your signature on it?
A. Yes.
Q. Can you verify any of the other signatures on this page?
A. No, only mine.
Q. And what about the signatures on the remaining pages?
A. My signature appears on the other pages.
Steven Burmeister - Voir Dire
Q. Okay. Agent Burmeister, is this document the complete
chain of custody for Government's Exhibit 664?
A. No. I don't know what the -- I'm just aware of the pages
themselves from my signature.
Q. Do you keep a chain of custody for exhibits when they come
into the laboratory for your review?
A. Yes.
Q. And did you provide that chain of custody in your notes?
A. Yes.
Q. And would that complete the chain of custody for
Government's Exhibit 664?
A. Yes.
MS. WILKINSON: Your Honor, we would object, unless we
offer those other pages that show the complete chain of
custody.
MR. TIGAR: I have no objection to that, your Honor.
THE COURT: All right.
MS. WILKINSON: Thank you.
THE COURT: Well, where are they?
MS. WILKINSON: I'll pull them out.
MR. TIGAR: In the meantime, I ask Miss Hasfjord to
staple what we have.
THE COURT: All right. We'll staple this, and this
will be E132.
MR. TIGAR: Yes, your Honor.
Steven Burmeister - Voir Dire
THE COURT: And it's being received subject to the
addition of --
MR. TIGAR: -- the other material.
THE COURT: Which we will call a Government exhibit,
and they will relate.
MR. TIGAR: Right.
THE COURT: Go ahead. Well, I guess -- can somebody
else look at this?
MS. WILKINSON: I've got it right here, your Honor.
I'm sorry.
THE COURT: Well, we can come back to that on
redirect. Let's continue with the examination.
MR. TIGAR: Yes, your Honor. I only want to ask him
two questions about the front page.
THE COURT: All right.
MR. TIGAR: It's been received. I can put it up.
CROSS-EXAMINATION CONTINUED
BY MR. TIGAR:
Q. Mr. Burmeister, showing you now what's been received as
132, you note that Items 1 through 5 and 7 through 15, and then
there's a note here. Do you know what that means?
A. No.
Q. It says, "Item 6 stored at Room A, Row 1, Unit B, Shelf 2";
correct?
A. That's what it looks like.
Steven Burmeister - Cross
Q. Now, Item 6 is what's now been received as Government's
664; correct?
A. I'm not sure how -- what that Item 6 designation calls for.
Q. Item 6 is Item 06 off the evidence log; is that right?
A. I'd have to see the evidence log to demonstrate that.
THE COURT: There's no dispute about that, is there?
MS. WILKINSON: No, your Honor. I believe it's down
further on the page.
THE COURT: You can accept: 06 is the same as Item 6.
BY MR. TIGAR:
Q. Do you know why Item 6 is stored in a different place?
That's the only question.
A. No.
Q. Now, in addition to concerns about what happens at the
crime scene, chain of custody is also important because it can
affect the significance of your findings; correct?
A. Yes.
Q. That is, if somebody finds an object and brings it to you
and says, Well, I found this six months ago but I really don't
know where it's been since then, would that cause you some
concerns?
A. If someone doesn't know how they packaged it and stored it,
that would be a variable.
Q. It's a variable; correct?
A. Uh-huh.
Steven Burmeister - Cross
Q. And that can affect the reliability of the conclusions that
you draw in terms of the particular case you're working on;
correct?
A. It would depend on the particular finding that you're
discussing.
Q. Now, you are -- you have some experience in the
investigation of arson scenes; correct?
A. Yes.
Q. And you are aware that in an arson scene -- that it's
necessary to protect items of physical evidence that may have
some significance, evidentiary significance; correct?
A. There's procedures to take for that, yes.
Q. Yes. And in terms of investigating arson scenes, physical
evidence should be thoroughly documented before it's moved;
correct?
A. Documentation is part of the procedures.
Q. No, my -- well, are you familiar with the NFPA Guide to
Fire and Explosion Investigations?
A. Yes.
Q. And do you accept that as an authority with respect to the
investigation of arson scenes?
A. It's a guide tool. I don't know if it's the actual gospel
authority for it. It's a tool that people can use.
Q. Sir, we're not talking about the Gospels. No blasphemy
meant. We're talking about the investigation of arson scenes.
Steven Burmeister - Cross
Do you accept this as authoritative with respect to the
investigation of arson scenes?
A. It's one of many items that's used as a guide tool for
people to use when they go to investigate incidents with
accelerant-type materials.
Q. And do -- my question, sir: Do you, Steven Burmeister,
accept it as authoritative.
A. I would of numerous documents, I would accept it as a
document to refer to if I want to find various information.
Q. And there are similarities, are there not, between the
investigation of arson crime scenes and bombing crime scenes,
techniques?
A. Some of the techniques are used.
Q. And that -- and that's because the search for accelerants
and residues is a feature that's common to the investigation of
bombing scenes and arson scenes; correct, sir?
A. There are some similarities.
Q. Is one of the those similarities that both involve the
search for accelerants and residues?
A. No. The only -- if I can explain what I mean by
"similarities." The similarities are really in the area that
some accelerant materials have an ability to be vaporized and
penetrate, and some high explosives have the ability to
penetrate through various packaging items. That's why it would
recommend some packaging methods. That's really the difference
Steven Burmeister - Cross
between the two investigations.
Q. Come back to that.
Do you agree with me, then, that physical evidence
should be thoroughly documented before it's moved; do you agree
with that?
A. Yes.
Q. Do you agree with me that plastic bags are not the best way
to store evidence that may contain or have accelerant residues?
A. What type of plastic bags do you refer to?
Q. Ordinary plastic bags, Ziploc.
A. Ordinary plastic bags are not recommended for
accelerant-type evidence.
Q. Now, the advantages of plastic bags are that they're
readily available, they're economical, and you can look at the
evidence without opening the bag; correct?
A. Yes.
Q. The disadvantages are that they're susceptible to easy
damage, such as by tearing and penetration, resulting in the
contamination of the physical evidence in them; correct?
A. Ordinary plastic bags, yes.
Q. And by "ordinary" -- Now, does the FBI use ordinary plastic
bags, or unordinary ones?
A. These are evidence bags that we utilize in the FBI
Laboratory. I wouldn't designate them as ordinary plastic
bags, since --
Steven Burmeister - Cross
Q. I'm holding up now 664B, which has a zip-type top on it.
What is the difference between this and a Ziploc I could buy at
the store?
A. It's the thickness of the bag is somewhat different.
Q. Okay. This is thicker?
A. Yes.
Q. Well, what's the difference between this and a bag I buy at
the store marked "freezer bag"?
A. That, I don't know.
Q. Okay. What's the difference between this and a bag I could
buy advertised on television that shows a piece of meat inside
and an animal that can't find it?
A. I don't know that type of bag.
Q. Okay. Plastic bags have this characteristic that they can
be penetrated by certain evidence. They can't be penetrated by
ammonium nitrate; correct?
A. Plastic bags -- right -- ammonium nitrate doesn't penetrate
the plastic bags.
Q. And that's because ammonium nitrate is not organic;
correct?
A. That's correct, yes.
Q. Now, certain hydrocarbons can penetrate; correct?
A. Hydrocarbons can penetrate certain types of plastic bags.
Q. Can they penetrate polyethylene plastic bags like this?
A. Yes.
Steven Burmeister - Cross
Q. And do hydrocarbons include fuel oil?
A. Yes.
Q. And nitromethane?
A. Yes.
Q. And gasoline?
A. Yes.
Q. Hydrocarbons are petroleum. That's what most hydrocarbons
are; right --
A. Yes.
Q. -- that we see in common use? Okay.
And can HMX penetrate plastic bags?
A. At a certain time period, it will; but its ability to
penetrate plastic bags -- the chemical configuration of it will
restrict it from penetrating very quickly. It's certain
explosives that will go quick. It's one of the ones that will
go on a lesser scale.
Q. What happens if you put a whole bunch of plastic bags in
the same box? Things can cross. Hydrocarbons that might be
there can cross from one sample to another; correct?
A. If it's in the improper plastic bag, it could occur, yes.
Q. Did you find any hydrocarbons or hydrocarbons on 664?
A. I didn't look for any.
Q. Were you aware that hydrocarbons -- that there was a theory
that hydrocarbons might have been used as a part of this bomb?
A. At what particular point are you referring to?
Steven Burmeister - Cross
Q. At the time you were doing your tests.
A. That's certainly one of the many types of materials that
could be mixed with various materials. A finding of ammonium
nitrate, looking for a fuel oil, that would be one particular
fuel that you could look for.
Q. Okay. Well, now, you say at one particular time. You had
the opportunity to test 664 as many times as you wanted;
correct?
A. I could have requested it as many times as I liked, yes.
Q. And, for instance, in -- on July the 21st, you could have
requested it; correct --
A. Yes.
Q. -- 1995?
A. Yes.
Q. And were you aware that prior to July of 1995, there had
been a theory that this was an ANFO device?
A. I'm not aware of that particular theory in place.
Q. Well, were you aware that your principal examiner put out a
theory that this was an ANFO device?
A. I don't know whether at that particular time frame anything
had been written down about that by any particular individuals
at that time frame.
Q. Well, you were the auxiliary examiner; correct?
A. Yes.
Q. And as the auxiliary examiner, you have the right to look
Steven Burmeister - Cross
at this and to test it; correct?
A. Yes.
Q. Are you aware that at some period of time, when you still
had access to 664, your principal examiner wrote down a
conclusion that this was an ANFO device?
A. I'm not aware of that.
Q. Are you telling this jury that you don't know -- well, who
is your principal examiner?
A. The principal examiner on this particular matter was
Special Agent Dave Williams.
Q. Are you telling this jury that you don't know that
Mr. Williams expressed a conclusion in a written report that
this was an ANFO device? Is that what you're saying?
A. Well, you have to put a time frame on it.
Q. All right. Prior to August 1, 1995.
A. I'm not sure of the exact date that I had learned that
something had been written down. I'm not sure of the exact
date.
Q. You're aware that at sometime that report was written;
correct?
A. Again, I'm not sure of the exact written format of that
particular document. I know something had been written down.
When it had been written down, I'm not aware of it.
Q. Now, let me see if I could refresh your recollection, sir.
Showing you this --
Steven Burmeister - Cross
MS. WILKINSON: Excuse me, could I just --
MR. TIGAR: Uh-huh.
BY MR. TIGAR:
Q. I'm going to show you now this, and just to refresh your
recollection. You see the date, sir?
A. Yes.
Q. Okay. Do you see that?
A. I see what you're pointing to.
Q. Yes. Okay. Does that refresh your recollection as to when
somebody at a time when you still had control or access to 664
expressed a conclusion?
A. No.
Q. Do you remember being questioned about a conclusion reached
by Mr. Williams that this was an ANFO device?
A. By whom?
Q. By anyone connected with the Department of Justice.
A. There were individuals who did question me about that, yes.
Q. And did they ask you -- did they inform you that
Mr. Williams had reached a certain conclusion?
MS. WILKINSON: Objection, your Honor.
THE COURT: Sustained.
BY MR. TIGAR:
Q. When you got to the crime scene, sir, on the 20th, was the
possibility that this device was made of ammonium nitrate and
fuel oil one that you were considering?
Steven Burmeister - Cross
A. I'm not sure if I considered it. I'm sure that it was of
the entire grouping of materials that I would have considered.
Whether I was specifically focusing on that particular one, I
doubt it, since I was staying open to whatever was available.
Q. I didn't ask you about a conclusion, sir. Was this one of
the options, one of the items you thought could be?
A. Any large bombing crime scene --
THE COURT: Just answer the question, will you.
THE WITNESS: It could be. I don't remember whether I
was specifically focusing on that particular material.
BY MR. TIGAR:
Q. You're a scientist; right?
A. Yes.
Q. And you don't want to leap to conclusions; right?
A. Absolutely.
Q. Okay. And so we got to be careful; right?
A. Yes.
Q. Let's start. Ammonium nitrate: How many billion pounds of
ammonium nitrate are sold in America every year?
A. I don't know.
Q. Do you know Paul Rydlund?
A. I'm aware of the name.
Q. Do you know that he -- do you accept him as an expert in
the field of ammonium nitrate and fuel oil combinations?
A. I would accept him as an expert in that particular field,
Steven Burmeister - Cross
yes.
Q. You know that he holds a master's degree that has to do
with timing devices or blast delays? Did you know about that?
A. No.
Q. Do you know that he held a patent?
A. I'm not aware of that particular patent.
Q. But you know that he's an expert -- correct -- in the field
of ammonium nitrate and fuel oil; correct?
A. Yes.
Q. And ammonium nitrate, you know is used for fertilizer;
correct?
A. Yes.
Q. How many pounds a year are sold and used for fertilizer?
A. I have no idea.
Q. Do you know how it's sold, in what form?
A. I'm not an expert in the packaging of ammonium nitrate.
Q. You testified on direct examination that ammonium nitrate
prills would not come out of a sealed fertilizer bag. Do you
remember that?
A. Yes.
Q. How do you know?
A. I have seen bags of ammonium nitrate in a prill form in
bags, and I've seen how they -- they would withheld -- withhold
the particular material inside.
Q. And do you know how those bags are filled?
Steven Burmeister - Cross
A. No.
Q. Do you know whether they're sewed or heat-sealed?
A. The ones that I have seen were heat-sealed.
Q. And they're made of plastic or paper and plastic?
A. I have seen some that were in a combination of both with a
plastic liner on the interior and some which were plastic
overall.
Q. All right. And the ones that are paper and plastic in the
interior: Is it your testimony that those are heat-sealed?
A. The ones that I saw had a heat-sealed interior plastic
lining.
Q. And did you have any opinion as to how the heat seal could
be applied through the paper?
A. I really don't know how that would be applied.
Q. Did you -- had you looked at any pictures of the back
storage room of the Kansas co-op, looked at pictures of the
floor there?
A. No.
Q. So did anybody show you pictures and did anybody show you
the testimony or talk to you about the testimony of
Mr. Schlender about how their floor gets dirty and they have to
sweep it out?
A. No.
Q. Have you ever watched any manufacturing process in which
ammonium nitrate bags are filled to be shipped in commerce?
Steven Burmeister - Cross
A. No.
Q. Well, then on what basis are you giving an opinion that an
ammonium nitrate bag purchased at a feed store -- that there's
no way the ammonium nitrate could leak out of it?
A. The only experience is looking at bags themselves and
seeing how they're heat-sealed and seeing that prills do not
penetrate outside of the bag.
Q. And -- but did you -- where did you do that?
A. This was several years ago when I visited ICI in Canada. I
saw plastic bags that were filled up there and looking at the
construction of those particular bags.
Q. Now, these were all-plastic bags?
A. Some were paper and some were plastic.
Q. So that's the basis for your opinion; right?
A. Yes.
Q. Okay. You didn't look -- you didn't look at the pictures
of an actual place where these things are stored; correct? In
a farm supply store -- you never did that?
A. No.
Q. Well, you're not aware of how much ammonium nitrate is sold
all over the country -- correct -- and we've established that?
A. Right.
Q. Now, you also -- one of the possibilities that you looked
at -- that you thought this bomb might have been a urea nitrate
bomb. That was a possibility; correct?
Steven Burmeister - Cross
A. It certainly was a possibility.
Q. Now, is there a way that -- is there a similarity between
urea nitrate and ammonium nitrate improvised explosive devices?
A. There are some chemical similarities in the sense of its
detonation abilities and speeds.
Q. Now, is it possible to -- in testing to mistake an ammonium
nitrate for a urea nitrate?
A. Using what method?
Q. Well, is it possible to make up a sample containing
ammonium nitrate and things that you might find just around
your house and have that show up as a urea nitrate on the
machine, on the testing machine?
A. Again, you have to tell me which instrument you're
referring to.
Q. Yes. Well, did you ever have an experiment in which you
tried to see whether or not a machine reading for urea nitrate
was actually urea nitrate, or whether the machine could be --
could read out a urea nitrate even though it wasn't a urea
nitrate sample? You've done that; right?
A. Yes.
Q. And how did you do it?
A. Was using an instrument called a "solids probe mass
spectrometer," one which was not used in this particular case;
but that's the particular instrument that was used to make that
type of a finding.
Steven Burmeister - Cross
Q. Uh-huh. And what you did was you had some ammonium nitrate
at your house?
A. No.
Q. Where did you get the ammonium nitrate to use there?
A. It was from a test vial.
Q. All right. And was that an ammonium nitrate bought in
commerce or at a hardware store?
A. I don't know where the FBI purchased it from.
Q. And then something was added to it; correct?
A. Yes.
Q. What was added to it?
A. It was urea, prills of urea.
Q. All right. And didn't you and Mr. Whitehurst add something
else?
MS. WILKINSON: Objection, your Honor.
THE COURT: Well, the objection is overruled.
BY MR. TIGAR:
Q. Didn't you and Mr. Whitehurst add something else to the
sample?
A. No.
Q. Didn't you have a test in which you and Mr. Whitehurst
mixed up some ammonium nitrate and something else that you and
Mr. Whitehurst, or one of you, had provided to see if you could
make the machine read out urea nitrate?
A. No. The only mixture was the one that I made with ammonium
Steven Burmeister - Cross
nitrate and urea.
Q. Is it your testimony, sir, that you never participated in
an experiment in which you or Mr. Whitehurst urinated into a
beaker, reduced it down, and added it to ammonium nitrate and
got a machine reading on it?
A. The urine study that you're referring to was never one in
which ammonium nitrate was added to the urine. It was flat out
extracts of urine were examined using the solids probe mass
spectrometer. There was nothing added to the urine.
Q. And that read out urea nitrate?
A. The results were the presence of urea and nitric acid,
which is consistent with a sample of urea nitrate placed into
that particular instrument.
Q. Is it your testimony, sir, that you never did an experiment
involving urine and ammonium nitrate?
A. There were no experiments where urine and ammonium nitrate
were added together.
Q. Is it your testimony, sir, that you never did an experiment
involving urine and ammonium nitrate?
A. Together?
Q. No.
A. Separate?
Q. Separately.
A. The test was one of which urine was tested and then the
combination of ammonium nitrate and urine, two separate ones.
Steven Burmeister - Cross
Q. Ammonium nitrate and urine?
A. I'm sorry. Now you got me fouled up. It's ammonium
nitrate and urea mixed together was one test. The other test
was the urine dried down. So there were two separate.
Q. And what was the purpose of that?
MS. WILKINSON: Objection, your Honor.
THE COURT: Overruled.
BY MR. TIGAR:
Q. What was the purpose of doing that?
A. This was -- the purpose of this entire test was in the
World Trade Center bombing case. We were looking at various
articles of clothing where extracts were removed from the
clothing. These were invisible residues. And based on those
invisible residues, we were getting findings of the presence of
urea and nitric acids, using the solids probe mass
spectrometer. The testing was done in order to find out
whether that particular instrument could receive other samples
and still produce the same type of a signal.
Q. Now, we've talked now about ammonium nitrate. We've talked
about some of these high explosives. You -- did you ever test
664 to see if any fuel oil residues were present?
A. No.
Q. Why not?
A. I made a determination early on that the samples themselves
would not be tested for any type of hydrocarbon material based
Steven Burmeister - Cross
on the location of that particular -- of items removed from
that particular parking lot area. These were items that were
potentially exposed to hydrocarbons within the air, so a
finding would not be of any significance.
Q. Did you make -- did you test anything that was found away
from the parking lot for hydrocarbons?
A. Nothing from that entire crime scene was tested for
hydrocarbons.
Q. Now, the blast center was in the parking pullout just in
front of the Murrah Building; correct?
A. Yes.
Q. And this Item 664 was found a hundred-and-some feet from
the blast center; correct?
A. I don't know the exact distances.
Q. A number of feet; correct?
Now, if you paced off the same number of feet towards
the Murrah Building, you'd be inside the building; correct?
A. That, I'm not sure.
Q. I'm going to show you what's been received in evidence as
Government 940. The truck was parked -- the crater that you
saw was right here -- sort of front and center of the Murrah
Building on N.W. 5th; correct?
A. Yes.
Q. 664 was found over here, by the Athenian Building; correct?
A. In that general area, yes.
Steven Burmeister - Cross
Q. So if we paced off the same number of feet, we'd be into
the Murrah Building; correct?
THE COURT: I'm not sure I understand "the same number
of feet."
MR. TIGAR: The same number of feet from the crater,
your Honor, but taking a different direction.
THE COURT: All right.
BY MR. TIGAR:
Q. Taking the truck as the center point, we'd be within the
Murrah Building?
A. Well, if I measure it off, myself, with my fingers, I'm
outside the Murrah Building.
Q. So that debris that was inside the Murrah Building would be
closer to the center of the blast than 664 was found; is that
correct?
A. Yes.
THE COURT: Is this an interrupting point? We ought
to take the recess.
MR. TIGAR: Yes, your Honor, thank you.
THE COURT: All right. You may step down.
And we're going to take our usual morning break,
members of the jury; and of course this week, like all other
weeks and all other days of trial, I must again caution you to
keep open minds, avoid discussion about the case or any aspect
of it among yourselves and with others, and continue to avoid
anything outside of our evidence that could influence your
decision in the case.
You're excused now, 20 minutes.
(Jury out at 10:23 a.m.)
THE COURT: All right. We're in recess.
(Recess at 10:24 a.m.)
(Reconvened at 10:44 a.m.)
THE COURT: Please be seated.
MR. MACKEY: May we approach?
THE COURT: Yes.
(At the bench:)
(Bench Conference 99B2 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
(In open court:)
THE COURT: Okay.
(Jury in at 10:46 a.m.)
THE COURT: Please resume the stand, Agent Burmeister.
MR. TIGAR: Excuse me, your Honor.
BY MR. TIGAR:
Q. Mr. Burmeister, before coming to court today, did you
participate in any moots?
A. Years ago. Several years ago.
Q. And that was to help you to become familiar with what it
means to testify; correct?
A. That was -- that was one aspect of the entire process.
Q. And that is a part of your training as an FBI agent who may
be giving testimony in court, the moot?
A. It's part of the training process, yes.
Q. And then you met with Government counsel to discuss the
basis of your testimony; correct?
A. Again, years later.
Q. Yes, of course. Years later.
A. Yes.
Q. Before coming here today, you've discussed it with
Government counsel; correct?
A. Yes.
Q. And you're aware that there are certain guidelines that
you're supposed to follow while you're testifying; correct?
Steven Burmeister - Cross
A. There are guidelines, yes.
Q. And that includes testifying in a manner which is clear,
straightforward, and objective in answers to all questions on
direct and cross-examination; correct?
A. Yes.
Q. Now, sir, we were talking at the time we broke about
ammonium nitrate; correct?
A. Yes.
Q. And we were also talking about some of these other residues
that you either did or did not look for. Do you recall that?
A. Yes.
Q. And specifically at the break we were talking about the
items that you would find inside the Murrah Building; correct?
A. That was part of the testimony, yes.
Q. Now, you found inside the Murrah Building a number of
pieces of shattered and broken plastic; correct?
A. I personally didn't find those.
Q. Were a number of pieces of shattered and broken plastic
from inside the Murrah Building presented to you for
examination?
A. I'm not sure whether those items came from within, or from
the exterior of the building.
Q. How about -- about how many pieces of plastic were
presented to you for examination?
A. I really can't give you a number.
Steven Burmeister - Cross
Q. Would it be enough to cover the top of the counsel table
here that I'm pointing to?
A. Oh, I don't think so.
Q. Well, were there more than 100?
A. Again, you're asking me to put a number on it. I can't put
a number on it.
Q. More than you can remember; is that correct?
A. Again, I can't put a number to the actual specimens that
were submitted.
Q. And did you test each of these for explosive residue?
A. Each one that came to me, I would have tested for explosive
residues.
Q. With what result?
A. My recollection right now is the pieces of plastic that I
tested were negative for explosive residues.
Q. Now, did you test them all for hydrocarbons?
A. No.
Q. Now, you had a reason for not testing for hydrocarbons;
correct?
A. Yes.
Q. And that was because of the background levels?
A. Yes.
Q. That is, when you are testing for something, you want to
make sure that your findings will be significant -- correct --
if you can?
Steven Burmeister - Cross
A. I'm not sure what you mean by "significant."
Q. Well, if there is a high background level -- for instance,
if you walk into a place that repairs cars and you pick up a
piece of evidence and take it back to your laboratory and find
that you've got something consistent with a medium-grade fuel
oil on it, that doesn't tell you very much except that it's got
fuel oil on it; correct?
A. That's right.
Q. Because the background of the fuels that are in and
hydrocarbons that are present in an auto repair shop is going
to be pretty high. Correct?
A. It depends on the particular auto shop, of course; but I
would expect them to be present -- hydrocarbons being present.
Q. Now, is it a part of your job when you look for something
to make -- that might be deposited on an object to make sure
that it didn't come from the surrounding environment, as
distinct from having been placed on the object by some external
force?
A. It's always information which is helpful in assessing the
particular finding.
Q. And you knew, did you not, that the parking lot across from
the Murrah Building was covered with debris of various kinds;
right?
A. I saw that, yes.
Q. And you saw that there were cars that had burned; correct?
Steven Burmeister - Cross
A. Yes.
Q. You saw that there were firemen. They put out the fires;
correct?
A. I didn't see the firemen putting out fires.
Q. But you knew that had happened; correct?
A. Yes.
Q. Now, you testified on direct that ammonium nitrate is not
used as a fire suppressant. That's right, isn't it?
A. Yes.
Q. Now, did you find background levels of nitrates, evidence
of background levels of nitrates in debris that was gathered
from the parking lot?
A. There were samples that were taken from the parking lot
that had nitrate ions on them.
Q. And did you find -- now, how is ammonium nitrate made? If
I wanted to make some, what would I do?
A. You would react ammonia with a nitric acid solution and
allow the precipitate to form.
Q. Okay. So that -- nitric acid: What's that in? Well, I
guess from the nitric acid store -- I mean the pharmaceutical
company. But what's it in, in other stuff?
A. I'm not aware of -- offhand, I'm not aware of commercial
products right now that actually contain nitric acid.
Q. Then, where do those nitrate ions come from that you found
in the parking lot?
Steven Burmeister - Cross
A. The source of those nitrate ions, I'm not sure exactly.
Q. Now, nitrate ions are charged particles; correct?
A. Yes.
Q. And you use the term "cations" and "anions"; right?
A. Yes.
Q. Right? And that refers to something called "polarity";
correct?
A. Yes.
Q. Now, we could illustrate that with a pair of bar magnets,
couldn't we?
A. Yes.
Q. That idea of polarity?
A. Yes.
Q. That is, if I had two bar magnets and I tried to bring them
together, if I found that they were resisting coming together,
I'd know that I had -- the two poles were the same; correct?
A. Yes.
Q. That I was bringing together?
A. Yes.
Q. And if they stuck, like two magnets sticking together, we'd
know that I had the opposite poles; right?
A. Yes.
Q. That I'd have a plus on one side and a minus on the other
side; right?
A. Yes.
Steven Burmeister - Cross
Q. And the ion process is nothing more than -- that's a
chemical version of what I'm seeing when I use the bar magnets
in that way; correct?
A. Your reference is an -- oversimplified, but yes.
Q. I understand. Well, correct me if I get oversimplified,
please. Thank you. But it's kind of like that; right?
A. Yes.
Q. Okay. Now, nitrate ions that are present in nitric acid
then join up with something that's present in ammonia -- is
that right -- to precipitate out ammonium nitrate?
A. The entity of ammonia takes on a charge of its own.
Q. Yes.
A. And the nitrate has a charge of its own as well. And
again, those two would come together and have the magnetism
that you're talking about.
Q. So if I pour household ammonia -- That is what I could use,
household ammonia that I could just buy at the store?
A. You could, yes.
Q. -- and nitric acid together -- I forget from chemistry
class. What am I not supposed to add to what so it doesn't
splash?
A. You don't want to add water to the acid.
Q. Okay. So I start with the ammonia, then I add the nitric
acid to it; correct? Is that what -- I could do that?
A. You could do that, yes.
Steven Burmeister - Cross
Q. And then I would begin seeing things precipitating out;
that is, some white stuff coming down to the bottom; correct?
A. You'll have a precipitate, yes.
Q. And that precipitate will be ammonium nitrate; correct?
A. Yes.
Q. Now, is there any way for ammonium nitrate crystals to form
by the existence of nitrate ions and ammonium ions that may be
present in nature without going through this mixing process?
A. You need to have the forms present; and again when we start
talking about ammonia ions and nitrate ions being in the nitric
acid and the ammonia solution, you have to have those
conditions present in order for it to precipitate out.
Q. And if I took ammonium nitrate and dropped it into a beaker
of water and mixed it up, it would dissolve; correct?
A. Yes.
Q. And there is a certain maximum amount that's going to
dissolve based on the chemical properties of ammonium nitrate;
correct?
A. Yes.
Q. And based on the temperature and pressure and those things;
right?
A. Right.
Q. Now, if I dehydrate that sample that I've mixed it in, I'll
get back some ammonium nitrate crystals; correct?
A. Yes.
Steven Burmeister - Cross
Q. Now, a characteristic of ammonium nitrate is that it is
very sensitive to water; is that right?
A. It's water soluble.
Q. And is that called hygroscopic, or hydroscopic, or neither?
A. I've also referred to it as hygroscopic.
Q. H-Y-G-R-O?
A. Yes.
Q. Hygroscopic. Now, what is that? H-Y-G-R-O-S-C-O-P-I-C;
right?
A. Yes.
Q. What does that mean?
A. Will take on water and absorb it over time.
Q. And do you have an opinion if I took some crushed ammonium
nitrate and placed it in a 100-percent-humidity condition in a
watch glass, a small vessel, what would happen to the ammonium
nitrate?
A. Based on your particular scenario with 100 percent
humidity, I would expect over a certain time frame, which I'm
not sure of, that it would break down.
Q. And now what do you mean "break down"?
A. It would dissolve into the air and evaporate off.
Q. Disappear; right?
A. Yes.
Q. That is, after a certain amount of time -- and a time
you're not aware of -- you'd come back and look at it and
Steven Burmeister - Cross
wouldn't see any more little white powder there; correct?
A. Yes.
Q. Where would it be?
A. It would be floating around in the jar that you've got the
container in as a gaseous-type flotation.
Q. And if I then gradually then reduced the humidity under
controlled circumstances, what would happen to this ammonium
nitrate that's running around in the air?
A. I -- I could only guess. I don't know a factual basis for
it.
Q. Have you ever done such an experiment?
A. No.
Q. Now, when ammonium nitrate precipitates out in a nitric
acid or an ammonia solution, the crystals have a certain form;
correct?
A. Yes.
Q. Can you predict the form?
A. Under certain conditions, you can predict the form.
Q. All right. And what form do you predict those crystals are
in?
A. I'm sorry. Could you repeat the question?
Q. You say under certain conditions you can predict the form.
How would we know? That is, now we've got some crystals.
We're going to look at them under our microscopic. You say we
can predict the form; that is, we can predict the shape those
Steven Burmeister - Cross
crystals are going to be. Under what circumstances and what
form would we expect to see when we started looking under our
microscope?
A. The form on a solution that is being evaporated in a
dish -- for example, a petri dish -- the form is different than
those that you actually start to attempt to grow crystals. And
growing the crystals is completely different.
Q. Now, you say the form if you evaporate. A petri dish:
That's just a small, flat dish with not high very sides on it;
correct?
A. Yes.
Q. So if we evaporated out in the petri dish, we're going to
get crystals of one form; correct?
A. Yes.
Q. Then you said there is another way. We can grow the
crystals?
A. Yes. You can start to promote the formation of specific
types of crystals either by seeding it or providing an avenue
for crystals to develop.
Q. Now, this is a study you made because you specialized in
microcrystals; correct?
A. Yes.
Q. Now, you told us on direct examination that there was
something about the shape of the crystals that you saw on
Government's Exhibit 664 that interested you. Correct?
Steven Burmeister - Cross
A. Yes.
Q. And how did -- tell us about that. First of all, did
you -- did you take any pictures of the crystals in which you
could measure their size?
A. No pictures were taken other than the photos that you have
seen.
Q. I've seen those photos. Based on those pictures, is there
a record of the size of the crystals in microns?
A. No.
Q. What's a micron?
A. A micron is a form of measurement, a very small form of
measurement that's classically used with scanning electron
microscopy because it's looking at very small levels of
particular materials.
Q. But I don't know how big it is. How big is it? How big is
a micron?
A. Let's see. I'll have to be -- on how many -- offhand, I'm
not sure as far as meters and centimeters the size is, but
it's --
Q. Is it a metric-type measurement?
A. Yes.
Q. So it's some fraction of a centimeter; correct?
A. Yes.
Q. And you're just not sure what fraction it is; right?
A. Yes. The decimal place, I'm not sure of right now.
Steven Burmeister - Cross
Q. Okay. But teeny-weeny; right? Small?
A. Yes.
Q. Okay. Real small. Now, did you -- do you have the
capability to measure the individual crystals to get their
dimension?
A. That is possible, yes.
Q. Did you do it?
A. No.
Q. Now -- well, were the crystals that you found on
Government's Exhibit 664 unusual in your view in terms of their
size?
A. Not in their size. It's in the overall shape.
Q. Okay. I asked you first size. The answer is no. Correct?
A. Yes.
Q. What shape were the crystals that you saw?
A. They were in irregular crystalline forms.
Q. They were in what kind?
A. Irregular.
Q. Irregular or regular?
A. Irregular.
Q. Irregular crystalline forms. Yes.
A. In a clear pattern.
Q. In a clear pattern. Now, in your lab notes, you said the
pattern was a glaze. Correct?
A. When you go to a distance, it's in a glazed form. The
Steven Burmeister - Cross
clear -- when I refer to "clear," that the crystal itself is
opaque, it's not colored or anything like that.
Q. So the crystal does not appear to have any foreign bodies
in it; correct?
A. Yes.
Q. It's pure. Is that what you'd say?
A. Well, "clear" being that there is no other foreign bodies
inside the crystal.
Q. Right. Now, what would make -- is an ammonium nitrate
crystal that precipitates out by mixing ammonia and nitric acid
clear, or opaque?
A. It's a -- hugely foggy in its nature. It's not something
that you could pick up and see opaqueness through it.
Q. All right. Were these crystals more, or less, transparent
to light than ones you would make by adding ammonium nitrate
and -- or ammonia and nitric acid together?
A. I'm not sure.
Q. So you don't know.
A. Right.
Q. So in terms of their color, you don't know whether they're
more, or less, transparent than ones that would be the result
of this chemical process; is that correct?
A. They may be foggier than the other crystals; that is, the
clearness is not as much. But that slight determination I
can't make, and I didn't make it.
Steven Burmeister - Cross
Q. Okay. So on -- all right. You can't make and you didn't
make; right?
A. Yes.
Q. So that what you say is different about them is the shape.
Correct?
A. Yes.
Q. Do you have pictures that show the shape?
A. The photos that you have seen demonstrate the crystals
themselves.
Q. I understand. We saw the pictures. But we're talking
about crystals that are a little -- that are 5 or 6 microns in
diameter; correct?
A. Without measuring, I'm not sure of the exact size.
Estimating, it's possible that they would be several microns in
size.
Q. Can we see something that small on those pictures?
A. How small?
Q. 5 or 6 microns.
A. It's possible under the one magnification you could see a
particle there.
Q. Particle. Now, is that particle a single crystal, or is it
more than one crystal?
A. The particle could be made up of several different
crystals. It's entirely possible.
Q. So you don't know. Is that correct?
Steven Burmeister - Cross
A. Yes.
Q. So the answer is you don't know whether you can see
individual crystal shapes on the pictures that you have; isn't
that right?
A. I can see individual crystals and their irregular shapes on
those photos that we see here.
Q. All right. And on those photos, then, what is the shape of
those crystals?
A. Again, they're irregular crystalline forms.
Q. Are they different from crystals that would occur or could
occur as a result of combining ammonia and nitric acid?
A. It depends on your preparation procedure that you're
referring to.
Q. So they could be different. Correct?
A. It's possible.
Q. You don't know?
A. Yes.
Q. Well, then tell us, please, what it is that's different
about these crystals from what could occur from the normal
fabrication of ammonium nitrate by adding ammonia and nitric
acid together?
A. The normal manufacturing process could, in fact, produce
crystals that look this way. There is a possibility that under
the manufacturing process, they could look different.
Q. Okay. So -- all right. And is it then the case that if I
Steven Burmeister - Cross
had my bell jar with 100 percent humidity and I -- and then
caused crystals to reform there -- that is, to precipitate out
of the atmosphere -- do you know what such crystals would look
like?
A. In recrystallizing material that would have been residue
that falls within a petri dish like that, I would expect to
find them in a different shape.
Q. All right. You would expect to find them in a -- have you
ever done that experiment?
A. I've taken liquids of ammonium nitrate solutions of
ammonium nitrate and allowed them to dry and observed their
crystalline formation.
Q. Now -- and did you -- when you did that, did you find a
single type of crystal, or shape of crystal, or there were
different shapes of crystals?
A. The studies that I did, the crystalline formation was more
in a sheet-like formation of crystals, not individual crystals
as we see on this specimen.
Q. Like a glaze?
A. No.
Q. What's the difference between a glaze and a sheet-like one?
A. A glaze is what we see here. A sheet is a continuous sheet
or very much like this piece of glass on the table top.
Q. That's -- a piece of glass on a table top: That's a sheet;
right?
Steven Burmeister - Cross
A. Yes.
Q. And you say a glaze is what we see here. I'm not --
without regard to what we see here, in your vocabulary, what's
the difference between a glaze and a sheet?
A. Well, a glaze is the particles that we see on this
particular specimen. A sheet is a continuous sheet of
crystalline formation.
Q. Uh-huh. Now, are you saying that a sheet is a glaze that
goes over a larger area and is more consistent than a glaze?
A. I don't understand what you mean.
Q. Well, a sheet, you say, is something that has
characteristics. It is flat, it is shiny, and it is uniform.
Correct? Is that your definition of a sheet?
A. No.
Q. What is your definition of a sheet?
A. A sheet would be a formation of a solid formation. If you
want, a piece of ice, for example, forming on a surface: That
is what I would consider a sheet. If you see individual
particles like salt or sugar, that's a glaze.
Q. Are you telling us that when you use the word "glaze" in
your laboratory notes -- and you did use that word; correct?
A. Yes.
Q. And you didn't ever use the word "embedded" in your
laboratory notes describing this phenomenon, did you?
A. No.
Steven Burmeister - Cross
Q. You're telling this jury when you use the word "glaze," you
meant individual particles. Is that your testimony?
A. Yes.
Q. Now, in addition to examining plastic and these items --
oh, I forgot to ask: Did you ask anyone to take soil samples
or dirt samples from the parking lot to determine what chemical
substances were present there -- were present there?
A. No.
Q. Did you attempt to determine what background levels of
nitrates existed in the environment in the parking lot?
A. No.
Q. You found a number of nitrate ions -- you found a number of
evidences of nitrate ions on items submitted from the parking
lot; correct?
A. I don't know the exact number. I know some items that were
submitted from that parking lot area did contain nitrate ions
on them.
Q. And you're unable to say whether those were the result of
background levels of nitrate ions or whether they were part of
some ammonium nitrate; is that correct?
A. Yes.
Q. Now, you also conducted a test on a dynamite wrapper;
correct?
A. It was reported to be consistent with a dynamite wrapper.
Q. Uh-huh. And that was recovered inside the Murrah Building;
Steven Burmeister - Cross
correct?
A. I'm not sure where the actual item was recovered from.
Q. Would it refresh your recollection if I suggested it had
been recovered from a body bag?
A. A body sounds familiar. A bag, I don't remember that
aspect.
Q. Now, you were -- we were talking earlier about the ammonium
nitrate vs. urea nitrate. Now, ammonium nitrate, if you find
that at a blast scene, what have you learned? What does it
tell you? What is -- suppose the ammonium nitrate on this --
suppose -- let's assume this came from -- whatever was on here
came from the blast. All right? What does that tell us?
A. Well, if you're determining that it came from the blast,
that that particular blast could have contained ammonium
nitrate.
Q. So now we know it could have contained ammonium nitrate.
Correct? So it could be ammonium nitrate and fuel oil;
correct?
A. It's possible.
Q. It could be ammonium nitrate and nitromethane; correct?
A. Yes.
Q. Could be dynamite; correct?
A. Yes.
Q. Could be slurry; correct?
A. Yes.
Steven Burmeister - Cross
Q. Could be a water gel emulsion; correct?
A. Yes.
Q. What else could it be?
A. Could be an emulsion.
Q. What's an emulsion?
A. It's another one of the ammonium-nitrate-containing
explosives very similar in the category of the slurries and
water gels.
Q. So do you know how many million pounds of ANFO are used
every year in the United States?
A. No.
Q. Okay. And -- but all of these -- well, have I gone through
all the different kinds of explosives that contain ammonium
nitrate?
A. No.
Q. How many more are there?
A. There could be others. I'd have to pull out the reference
texts to find all of the other combinations of explosives that
contain it.
Q. Okay. So there are many; correct?
A. There are --
Q. Dozens?
A. Yes, I would say, more than.
Q. Dozens. And each of the dozens may be sold under more than
one brand name; correct?
Steven Burmeister - Cross
A. Yes.
Q. Now, ammonium nitrate explosives -- an ammonium nitrate and
fuel oil combination can have a very broad range of velocity of
detonation; correct?
A. Yes.
Q. And that's going to be based on a number of variables.
Correct?
A. Yes.
Q. Now, it would be important, would it not, if we found
ammonium nitrate on here -- be important not to leap to a
conclusion as to exactly what the explosive charge was. Right?
A. You don't want to leap to any conclusion; yes.
Q. Right. And so it would be improper just because you find
ammonium nitrate on here to hypothesize that any particular
thing caused the blast. Correct?
A. You would need more information at that point.
Q. Right. Now, if I took this piece to the laboratory -- of
course, I've been handling it. This is Government's Exhibit
664 -- would I find any ammonium nitrate on it?
A. Are you referring to now?
Q. Yes. Now.
A. It's possible.
Q. Well, let's look. You first got it in your laboratory on
the 20th of April; correct?
A. I received it on the 28th, yes.
Steven Burmeister - Cross
Q. And you caused a number of tests to be performed. Correct?
A. Yes.
Q. Showing you now what's in Government's Exhibit 1744 for
demonstrative purposes. And we'll look at some of these when
we get the focus here.
Now, you told us about the chemical spot test.
Correct?
A. Yes.
Q. And that, you did yourself. Right?
A. Yes.
Q. And you said that it showed the presence of a strong
oxidizer; right?
A. Yes.
Q. You said ammonium nitrate; that is, consistent with
ammonium nitrate. You just know it's a strong oxidizer?
A. Yes.
Q. Do you have any idea what proportion of the ammonium
nitrate that's made is used for explosive applications and what
proportion is used for fertilizer applications?
A. No.
Q. So when you in your direct examination kept calling
ammonium nitrate an explosive, we could just as well call it a
fertilizer; right?
A. You could do that, yes.
Q. Right. And as far as proportions are concerned,
Steven Burmeister - Cross
fertilizer, explosive, you don't know; right?
A. That's correct.
Q. Okay. The next thing that happened was that somebody did
polarized light microscopy. Right?
A. Yes.
Q. Who did that?
A. I did.
Q. Fourier FTI -- what do we call it Fourier transform
infrared -- FTIR?
A. Spectroscopy, but yes.
Q. Right. And who did that?
A. Chemist Mary Tungol.
Q. And do you know -- and then you did X-ray diffraction with
the Gandolfi camera, single crystal exam. That was done at the
Smithsonian?
A. Yes.
Q. Who did that?
A. I forget the actual individual, but it was Special Agent
Bruce Hall who witnessed the examination.
Q. Now, with the Gandolfi camera, could you take a picture of
the crystal?
A. No.
Q. You just analyze it. Correct?
A. It's kind of -- by saying "camera," it's an apparatus that
records a spectrum of diffracted X-ray beams, and that's all
Steven Burmeister - Cross
it's recording and photographing.
Q. Did you have in the lab a device by which you could look at
these individuals crystals to see their structure one crystal
at a time?
A. The scanning electron microscope could have done that, yes.
Q. But you didn't do it?
A. No.
Q. Then you had ion chromatography anions; and now you're
finding nitrate ions. Correct?
A. Yes.
Q. Now, you found nitrate ions in a large number of the
samples submitted; correct?
A. Many of the items had nitrate ions in them.
Q. And you did not test the area from which they were
collected to see the background level of nitrate ions; correct?
A. Yes. That's correct.
Q. Nitrate ions do occur in nature; that is to say, as
background matter in a large number of applications; correct?
A. I'm not sure what you mean by "applications."
Q. Well, in -- nitrate ions are going to show up in acid rain;
correct?
A. It could.
Q. Nitrate ions are going to show up if people have been
fertilizing their lawns; correct?
A. It could.
Steven Burmeister - Cross
Q. What other ways do nitrate ions occur naturally in our
environment around us?
A. They could be found in various food articles or certain
manufactured products.
Q. Food articles. You mean, what, bacon?
A. Yes.
Q. So that nitrate -- nitrate -- one test -- if you take some
bacon and test it for nitrate ions, you'll find them in there
usually?
A. I don't know usually. I thought that they were trying to
phase out nitrates, but you could find some food products that
have it.
Q. In other words, you could go to the store and look and it
says canned ham -- for instance, would have nitrates in it --
correct -- often listed on the label? I don't know, but does
it?
A. Like I said, I thought they were trying to phase out
nitrates in food products, but it could.
Q. All right. But in some food products. Right?
A. Possible, yes.
Q. Okay. And anything else?
A. Not that I recall right at the moment.
Q. Okay. Then you did capillary zone electrophoresis. You
found some more nitrate ions; correct?
A. Yes.
Steven Burmeister - Cross
Q. Then you did ion chromatography cations, and the cations
are just ions that have that different polarity that we were
talking about before. Who did the ion chromatography?
A. That was a chemist, Tim McLaughlin, who was working with
me.
Q. How about the capillary zone thing -- electrophoresis?
A. It was either the chemist or myself who would have run that
particular --
Q. Which chemist?
A. Tim McLaughlin.
Q. McLaughlin. And how about the ion chromatography cation?
A. That would have been again the chemist Tim McLaughlin.
Q. Now, there you're looking for ammonium ions. In what way
do -- do they occur in nature? I mean in our environment? I
don't mean in nature. But as we walk around, are we going to
see things that have ammonium ions on them?
A. You could find some things, yes.
Q. And what kind of things will we find these ammonium ions
on?
A. Things that are close by: a fertilizer that contains
ammonium ions in it. It's very possible.
Q. And how about household ammonia?
A. Household ammonia, yes.
Q. Things we use to clean ourselves up. What other things?
The fertilizer, household ammonia. What else?
Steven Burmeister - Cross
A. That's all that's coming to mind right at the moment.
Q. Okay. Then we did the UV detection, the ion chromatography
cations. Who did that?
A. Again, that could have either been myself or chemist Tim
McLaughlin.
Q. How about the scanning electron microscope?
A. That would have been done by our scanning electron
microscopist, Dennis Ward.
Q. And then you did gas chromatography and ion mobility, and
you didn't detect any high explosives. Correct?
A. Yes.
Q. Now, what role, if any, did Mr. Martz play in this?
A. None.
Q. He didn't do any of these tests. Is that right?
A. That's right.
Q. Now, we were talking about this -- you examined this --
started your examinations on the 28th of April; correct? By
when was all of this testing that you've described here
completed?
A. The item went back May of -- May 22, 1995.
Q. Okay. So from April 28 to May 22; correct?
A. Yes.
Q. And when did -- did you then come to look at it later and
find that there were no crystals on it?
A. Sometime later, there was a very cursory examination
Steven Burmeister - Cross
performed by myself, and I did not find any crystals on it.
Q. Okay. When was that that you looked at it and didn't find
any crystals on it?
A. I'm -- my recollection, I think November of '96, I believe,
was the date that an examination was done by myself.
Q. Now, you testified on direct examination that in the
meantime it had gone out to Mr. Buechele; correct?
A. Well, after I received it, I know that it had gone to other
examiners. The exact sequence and who exactly it went to, I'm
not familiar.
Q. Okay. And therefore, you -- do you have any explanation
that's scientifically valid or scientific-based explanation for
the disappearance of the crystals?
A. I could provide an explanation as possible sources for the
crystals to have disappeared.
Q. My question is do you have any possible sources?
Okay. I objected before. I'll take it now. If we
were going to look for a reason why, what would we look for?
A. Well, handling of that particular item could cause those
crystals to be scraped or removed off of the surface.
Q. All right. Are you aware that anyone scraped this surface?
A. When I say scraped, if someone applies it to the table and
it's moved slightly, that's a scraping of the surface.
Q. All right. So you say that could remove it; correct?
Scraping.
Steven Burmeister - Cross
A. Yes. Scraping, brushing --
Q. Okay.
A. -- touching.
Q. Moving. Moving just across a surface of a table, just
like -- without any pressure on it. That could do it?
A. It's possible.
Q. Okay. So that could cause it to disappear. What's No. 2?
A. Just the course of time exposed to high-humidity
environments could cause it to disappear.
Q. Okay. Do you have places in the FBI Laboratory for the
storage and retaining of crucial evidence in bombing cases that
are of such high humidity that trace evidence disappears?
A. I'm not aware of any.
Q. But you believe that that's possible based on your
experience that these things disappear because of that. Is
that correct?
A. Sometime if the item is exposed to a high-humidity
environment over the course of a long term, it's entirely
possible that could contribute to the loss of those particular
crystals.
Q. All right. Do you have a third explanation possible we
should think about?
A. Not that I can recall right at the moment.
Q. Were you concerned when you looked in whenever it was,
1996, and found that your crystals weren't there?
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A. I don't know what you mean by "concerned." They were gone.
Q. Did that concern you at all?
A. I would say that I was -- I don't know if I can say I was
concerned about it. There was an explanation from all the
traffic that the particular item had that it doesn't surprise
me that they were no longer there. I was, if you will,
disappointed that they weren't there.
Q. You were disappointed. And when you said you were -- it
didn't surprise you, did you then conduct an investigation to
verify which ones of these hypotheses might be true?
A. No.
Q. If environmental conditions inside the FBI Laboratory could
cause these crystals to disappear, did you consider what the
effect on the crystals might have been of having been through
an Oklahoma-style gully-washer rainstorm, the trample of feet
of officers across a parking lot, the resting on metal objects
that were being retrieved and handling in the course of
evidence collection? Did you think back to that time and
wonder whether your initial conclusions might have to be
revisited?
A. No.
Q. Did you conduct any tests in the FBI Laboratory to
determine what it was that among your various hypotheses, your
various theses, that caused the crystals to disappear?
A. Would you ask that one more time.
Steven Burmeister - Cross
Q. Did you do anything to try to figure out why the crystals
disappeared?
A. No.
Q. We've established that before the crystals disappeared, you
hadn't -- you hadn't done any photographs that would show the
shape or size of the crystals -- individual crystals; correct?
A. At the time of the examination, yes.
Q. Now, earlier, before the break, we were talking about a
test. And I will ask you, sir, isn't it a fact that you
questioned one agent's finding on a prior occasion, prepared a
blind test, and asked the agent to test a mixture of urine,
ammonium nitrate, and urea? Did that happen?
A. Yes.
Q. And this blind test: The agent concluded that the mixture
was urea nitrate; correct?
A. Well, I'm not sure if it was a conclusion. It was
consistent with the presence of urea nitrate.
Q. And in that case, where did the ammonium nitrate come from?
Is that from the FBI purchases?
A. That's correct.
Q. And where did the urea come from?
A. The urea that was used was urea that had been seized as a
result of a search during that particular case.
Q. And where did the urine come from?
MS. WILKINSON: Objection, your Honor.
Steven Burmeister - Cross
THE COURT: Sustained.
BY MR. TIGAR:
Q. But it was human. A human product; correct?
A. Yes.
Q. All right. Now, you are familiar, are you not, sir, with
how to build an ammonium nitrate/fuel oil bomb?
A. I'm aware of the components that would -- could go into it.
Q. And you've read the Anarchist's Cookbook, have you not?
A. Parts of it. Most of it, yes.
Q. Now, where can you buy the Anarchist's Cookbook to show you
how to build one of these things?
A. You could get information off of the Internet for where to
purchase texts on this. You can go to particular companies
that will sell various anarchist literature.
Q. Can you get these books at gun shows?
A. I don't know. I've never been to a gun show.
Q. Do you know of a particular publisher where you can buy
books on how to make these devices?
A. Yes.
Q. Which one is that, or which ones are those?
A. You could go to a company called Paladin Press.
Q. And if we wanted to go to Paladin Press and find and buy
these books -- How many books on how to build these do they
sell at -- do they make at Paladin Press?
A. I don't know the exact number.
Steven Burmeister - Cross
Q. More than a dozen?
A. Again, I don't know a number that they sell.
Q. But you've read some of theirs; correct? And if we wanted
to go buy one right from where they're made, where would we go?
A. Buy the what?
Q. Paladin Press. Where is Paladin Press?
MS. WILKINSON: Objection. Relevance, your Honor.
THE COURT: Overruled.
BY MR. TIGAR:
Q. Where is Paladin Press?
A. I believe it's in Colorado.
Q. It's in Boulder, isn't it?
A. Again, I believe. I don't know for a fact.
Q. Now, would you agree with me that in view of ammonium
nitrate -- well, do you know the book Scientific Evidence in
Criminal Cases by Moenssens?
A. I don't think I've seen that.
Q. Well, would you agree with me, sir, that in view of
ammonium nitrate's widespread use in farming as a fertilizer as
well as in blasting agents, an analytical procedure which
reveals ammonium nitrate traces has not necessarily proved its
use as a blasting agent?
A. Could you read that one more time.
Q. Sure. In view of ammonium nitrate's widespread use in
farming as a fertilizer as well as in blasting agents, an
Steven Burmeister - Cross
analytical procedure which reveals ammonium nitrate traces has
not necessarily proved its use as a blasting agent. Do you
agree with that?
A. Yes, I would agree with that.
Q. Now, would you agree that the constituents of blasting
agents are generally inorganic nitrates -- that is, ammonium
nitrate -- and carbonaceous fuels and may also contain powdered
aluminum or ferrosilicon?
A. I would go very heavily on the "may."
Q. All right. Now, you tested and found aluminum, silicon,
and sulfur; correct?
A. Yes.
Q. Now, aluminum is a constituent of commercially produced
blasting agents, isn't it?
A. It's not found in the pure powdered aluminum. It's in a --
it's a part of a molecule. There is more to it.
Q. Yes.
A. But it's not in the original pure-metal form of aluminum.
Q. Of course. That is, the -- so you're saying that there is
an aluminum compound present in blasting agents; correct?
A. Yes.
Q. And at what temperature would we expect that compound to
come apart and to get a deposition of aluminum?
A. I don't know.
Q. But it is your testimony that aluminum is a constituent of
Steven Burmeister - Cross
commercial blasting agents; correct?
A. It's in very trace amounts, but it is a constituent.
Q. Now, at the crime scene, you instructed agents to wear
gloves; correct?
A. I'm not sure if I actually made an outward endorsement of
wearing gloves. It was my understanding that individuals would
wear gloves at the crime scene.
Q. And you wear gloves in the laboratory; correct?
A. Yes, I do.
Q. And you use two pairs. Is that right?
A. Yes, I do.
Q. And are they lined, or unlined? I mean are they powdered,
or unpowdered?
A. Actually, I used both in certain situations. The ones that
I usually use that I have right now are unlined -- they do not
have material inside to take up moisture.
Q. The ones you use now do not?
A. Right.
Q. Now, do you know what kind of glove Mr. Kelly was using on
the day in question?
A. No.
Q. Do you know what kinds of gloves were issued to the agents
at the scene?
A. No.
Q. Now, sir, you also testified that you participated in a
Steven Burmeister - Cross
search of Mr. Nichols' home. Do you remember that?
A. Yes.
Q. Now, what time did you arrive in Kansas? You got to Kansas
on the 22d?
A. I arrived on the 22d, yes.
Q. And that was a Saturday?
A. Let's see. Wednesday being the 19th. Yes.
Q. Now, did you attend a briefing before the search?
A. Yes.
Q. Where was the briefing held?
A. It was at the Herington public service -- I'm not sure if
it was the police, but it was a fire station, police/fire
station combination.
Q. And you -- who conducted the briefing?
A. I'm not sure the exact individual at this point.
Q. Were a number of other agents present?
A. There were a number of people there for the briefing.
Q. Was Ms. Jasnowski, Agent Ja