IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TIMOTHY JAMES McVEIGH,

Petitioner-Defendant,

v.

Case No. 96-_____

(Case No. 96-CR-68-M below)

HONORABLE RICHARD P. MATSCH,

Respondent.

PETITION FOR WRIT OF MANDAMUS OF PETITIONER-DEFENDANT,

TIMOTHY JAMES McVEIGH AND BRIEF IN SUPPORT

MARCH 25, 1997

Stephen Jones, OBA #4805

Robert Nigh, Jr., OBA #011686

Richard Burr, FBA #407402

Jeralyn E. Merritt, Esquire

Cheryl A. Ramsey, OBA #7403

Christopher L. Tritico, TBA #20232050

Of Counsel

Robert L. Wyatt, IV, OBA #13154

Michael D. Roberts, OBA #13764

James L. Hankins, OBA #15506

Randall T. Coyne, OBA #549013

Amber McLaughlin, TBA #1374098

Robert J. Warren, OBA #16123

Mandy Welch, TBA #21125380

Holly Hillerman, OBA #017055

TABLE OF CONTENTS

PAGE NO.

OVERVIEW

1

I. INTRODUCTION

4

STATEMENT OF MATERIAL FACTS

9

II. PHYSICAL AND POLITICAL MAGNITUDE OF THE DESTRUCTION OF

THE ALFRED P. MURRAH BUILDING

9

A. Immediate Effects of the Explosion

9

B. The Response of the Federal Government

13

1. The Government's Immediate Response to the Bombing

14

a. Mobilization

14

b. Evidence From Public Sources of government Use of Intelligence Networks With

Foreign Nations in the Investigation of the Alfred P. Murrah Building Bombing

16

C. CIA and NSA Investigation Protocol

17

2. Evidence of the International Scope of the Investigation and the

Involvement of

Organs of State Intelligence in

Several U.S. Domestic Bombing Cases Including the Alfred P. Murrah Building

21

3. The Investigative Focus Upon Foreign Terrorists

24

III. THE ARREST OF TIMOTHY McVEIGH

28

IV. THE GRAND JURY RETURNS THE INDICTMENT OF "OTHERS

UNKNOWN"

29

i

V. THE "OTHERS UNKNOWN" TO THE GRAND JURY

32

A. Elliott's Body Shop

32

B. Oklahoma City Eyewitnesses

34

C. Jeff Davis

35

D. Frederick Schlender

37

E. Legal Significance of the Existence of "Others Unknown"

38

VI. PRIOR WARNING, ATF INFORMANTS, AND POSSIBLE "OTHERS

UNKNOWN"

38

A. Elohim City

38

B. Dennis Mahon, Andreas Strassmeir and Carol Howe

44

1. Dennis Mahon

44

2. Andreas Strassmeir

47

3. Carol Howe and the Bureau of Alcohol, Tobacco and Firearms

53

VII. BEYOND ELOHIM CITY

79

A. Suspect I, Posse Comitatus, and Iraq

79

1. Posse Comitatus

79

B. Saudi Report Concerning Iraq

81

C. FBI Special Agent Kevin Foust

82

2. State Sponsorship Precedent

85

D. Israelis Present at the Bomb Site

89

E. A Subject of the Investigation in the Philippines

91

ii

VIII. PROCEDURAL HISTORY OF DISCOVERY REQUESTS

101

A. Introduction

10l

IX. GOVERNMENT EVASION OF ITS DISCOVERY RESPONSIBILITIES

111

A. The Government's Restrictive Definition of Brady

114

B. Counsel for the Government are Powerless to Effect Disclosure of

Discoverable

Information from National Intelligence Agencies

128

X. AUTHORITY

137

A. Judge Matsch's Denial of Mr. McVeigh's Discovery Motions is Reviewable

Upon Petition

for Writ of Mandamus

137

B. Federal Rule of Criminal Procedure 16 Entitles Mr. McVeigh to the

Requested Discovery

Material

138

C. The District Court Abused its Discretion by Denying Mr. McVeigh's

Repeated Requests

for Brady Material

142

D. Standard for Guidance in Search

144

E. Because the Material Sought by Mr. McVeigh is Material Both to Guilt and

Punishment,

the District Court's Abuse of Discretion Jeopardizes Both Stages of Mr.

McVeigh's Capital

Trial

146

X. SPECIFIC RELIEF REQUESTED

152

CERTIFICATE OF HAND DELIVERY

154

ii

TABLE OF AUTHORITIES

United States Supreme Court Cases

PAGE NO.

Arizona v. Youngblood, 488 U.S.51,58 (1988)

151

Bankers Life & Cas. Co. V. Holland, 346 U.S.379 (1953)

139

Brady v. Maryland, 373 U.S. 83(1963)

passim

Eddings v. Oklahoma, 455 U.S. 104, 110-12(1982)

147

Giglio v. United States, 405 U.S. 150(1972)

passim

Kyles v. Whitley, 514 U.S.419, 115 S. Ct. 1555, 1565-68, 131 L

Ed. 2d490 (1995).

115, 142, 143, 14S,

151

Roche v. Evaporated Milk Assn., 319 U.S.21(1943)

137

Snepp v. United States, 444 U.S.507, 512 (1980)

16

United States v. Agurs, 427 U.S.97, 110(1976)

145

United State v. Bagley, 473 U.S.667, 675(1985)

151

United States v. Richard M. Nixon, President of the United

States, 418 U.S. 683(1974)

136

Will v. United States, 389 U.S. 90, 95(1967)

137

iv

Other Federal Cases

Chaney v. Brown, 730 F.2d1334, 1345 (10th Cir. 1984), cert. denied, 496 U.S.

1090(1984)

146, 147, 148

Hopkinson v. Shillinger, 781 F. Supp. 737 (D. Wyo. 1991)

150, 151, 152

In re Joint Eastern & Southern Districts Asbestos Litigation, 22 F. 2d755(7th

Cir. 1994)

137

Nichols v. Alley, 71 F.3d347(10th Cir. 1995)

12

Smith v. Secretary of New Mexico Department of Corrections, 50 F.3d801,

824(10th Cir.1995)

144, 145, 146

Texaco, Inc. v. Chandler, 354 F. 2d655(10th Cir. 1965), cert. denied, 383 U.S.

936(1966)

137

United States v. Clegg, 740 F.2d 16, 18 (9th Cir.1984)

139

United States ex rel Smith v. Fairman, 769 F.2d386, 391-93 (7th Cir. 1985)

145

United States v. Fernandez, 913 F.2d 148, 154 (4th Cir. 1990 )

138

United States v. George, 786 F. Sup. 11, 13(D.D.C> 1991)

140

United States v. LaRouche, 695 F. Supp. 1265, 1281 (D. Mass. 1988)

145

United States v. Mandel, 914 F. 2d 1215, 1219 (9th Cir. 1990)

139

United States v. McAnderson, 914 F. 2d934(7th Cu. 1990)

85

v

United States v. McVeigh, 923 F.Supp.1310,1313(D.Colo.1996)

114,130

United States v. Perdomo, 929 F.2d967-978(3d Cir.1991)

144

United States v. Penix, 516 F.Supp.248, 255 (W.D. Okla. 1981)

30,104

United States v. Poindexter, 727 F.Supp.1470(D.D.C.1989), rev.d on other

"rounds, 951 F.2d366(D.C. Cir. 1991)

141,142

United States v. Rahman, 870 F.Supp.47,51(S.D.N.Y.1994)

142,143,151

United States v. Rewald, 889 F.2d836 (9th Cir.1989)

15

United States v. Rezaq, 156 F.R.D.514,519(D.D.C.1994)

140

United States v. Ritter, 272 F.2d30,32(10th Cir.1959), cert. denied, 362

U.S.950(1960)

137

United States v. Trevino, 556 F.2d1265, 1272 (5th Cir.1977)

144

United States v. Yunis, 867 F.2d617,623(D.C.1989)

140

United States v. Yunis, 924 F.2d1086,1095(D.C.Cir.1991)

140

United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir.1995)

144

Other Authorities

28 U.S.C.'1651(a)

137

Fed.R.Crin.P.16(a)(1)(C)

129, 138,139

vi

[CONTINUED IN PART TWO]

PART TWO OF EIGHTEEN:

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TIMOTHY JAMES McVEIGH,

Petitioner-Defendant,

v.

HONORABLE RICHARD P. MATSCH,

Respondent.

Case No. 96 (Case No. 96-CR-68-M below)

PETITION FOR WRIT OF MANDAMUS OF PETITIONER-DEFENDANT, TIMOTHY

JAMES McVEIGH AND BRIEF IN SUPPORT

COMES NOW the Petitioner, Timothy James McVeigh, by and through the

undersigned counsel, and moves this Court to:

1. Assume jurisdiction in this matter and issue a Writ of Mandamus to the

respondent trial judge directing the respondent to enter the appropriate

orders specifically requested herein; and

2. Issue a stay of the proceedings below pending resolution of this Petition

in this Court or, in the alternative, allow jury selection to proceed on

schedule, March 31, 1997, but stay the taking of evidence in the court below

pending this Court's resolution of the Petition.

OVERVIEW

The McVeigh defense, based upon the material provided to it, suggests the

following hypothesis: A foreign power, probably Iraq, but not excluding the

possibility of another foreign state, planned a terrorist attack(s) in the

United States and that one of those targets was the Alfred P. Murrah

Building in Oklahoma City. The Murrah Building was chosen either because of

lack of security (i.e. it was a "soft target"), or because of available

resources such as Iraqi POW's who had been admitted into the United States

were located in Oklahoma City, or possibly because the location of the

building was important to American neo-Nazis such as those individuals who

supported Richard Snell who was executed in Arkansas on April 19, 1995.

The plan was arranged for a Middle Eastern bombing engineer to engineer the

bomb in such a way that it could be carefully transported and successfully

detonated. There is no reported incident of neo-Nazis or extreme right-wing

militants in this country exploding any bomb of any significant size let

alone one to bring down a nine (9) story federal building and kill 168

persons. In fact, not even members of the left-wing militant groups such as

the Weatherman were ever able to accomplish anything of this magnitude.

This terrorist attack was "contracted out" to persons whose organization and

ideology was friendly to policies of the foreign power and included dislike

and hatred of the United States government itself, and possibly included was

a desire for revenge against the United States, with possible anti-black and

anti-semitic overtones. Because Iraq had tried a similar approach in 1990,

but had been thwarted by Syrian intelligence information given to the United

States, this time the information was passed through an Iraqi intelligence

base in the Philippines.

Operating out of the Philippines as a base, the state-sponspored [sic]

terrorists, with the Murrah Building already chosen as the target, enlisted

the support and assistance of members of the Radical American Right. The

defense believes the evidence suggests that American neo-Nazis were chosen

to carry out the bombing of the Murrah Building because of a shared

ideological bent of hatred against the American government. It is possible

that those who carried out the bombing were unaware of the true sponsor.

The evidence collected by the defense suggests that the desired ideology was

found by the state-sponsored terrorists in Elohim City, Oklahoma, a small

compound near Muldrow, Oklahoma, consisting of between 25 and 30 families

and described as a terrorist organization which preaches white supremacy,

polygamy and overthrow of the government. Elohim City was a haven for former

members of The Covenant, The Sword and the Arm of the Lord ("CSA"), another

extremist organization that had been raided by the federal government on

April 19, 1995, exactly ten years to the day prior to the Oklahoma City

bombing. One member of CSA turned on the organization and testified in court

at the trial of Richard Snell and others who were charged in Arkansas with

sedition in that they conspired to destroy the Alfred P. Murrah Building in

Oklahoma City with a rocket

launcher in the early 1980's. Snell was convicted on unrelated capital

charges and sentenced to death in Arkansas. He was executed the day of the

Oklahoma City bombing--April 19, 1995--and is buried at Elohim City. It is

from this group of people that the defense believes that the evidence

suggests foreign, state-sponsored terrorists groomed the most radical

persons associated with Elohim City and extracted monumental revenge against

the federal government by destroying the Murrah Building on the day of

Richard Snell's execution and the anniversary date of federal raid.

But the defense hypothesis also entails evidence, very strong evidence, that

the federal government, through the Bureau of Alcohol, Tobacco & Firearms,

had an informant in Elohim City, an informant who warned federal law

enforcement prior to April 19, 1995, that former residents, including the

former chief of security, of Elohim City were planning to "target for

destruction" federal buildings in Oklahoma, including the Alfred P. Murrah

Building. The defense believes this scenario is true, that is is [sic]

eerily similar to the World Trade Center bombing where the FBI had an

informant infiltrate the terrorist group but failed to stop that criminal

act, and that, absent judicial intervention, information concerning these

matters in the possession of the federal

government will be forever buried.

The defense for Mr. McVeigh is not engaged in a fishing expedition. As the

information set forth in this Petition demonstrates, the McVeigh defense,

using resources provided to it by the district court, has conducted a

wide-ranging and increasingly narrow focused investigation. But without

subpoena power, without the right to take depositions, and without access to

national intelligence information, the McVeigh defense can go no further.

[CONTINUED IN PART THREE]

PART THREE OF EIGHTEEN

I. INTRODUCTION.

The Government of the United States is hiding from the defense and the trial

court evidence and information that the government had a prior warning that

the Alfred P. Murrah Federal Building in Oklahoma City (and possibly federal

property in Tulsa) was very likely a target of a terrorist attack on or

about April 19, 1995. This information came to the government from a variety

of sources, including Carol Howe, a paid ATF informant for about 6 months,

who infiltrated Elohim City and the Christian Identity Movement and who

provided specific information prior to April 19, 1995, that an illegal

German national, the grandson of one of the founders of the German Nazi

Party, proposed to bomb federal buildings and installations and engage in

mass murder. Information also came to the government through foreign

intelligence services in the Middle East and from the government's own

assets that an attack was being planned on the "heartland" of America.

The government responded to part of these warnings by conducting a

superficial security examination of the federal building complex in Oklahoma

City on the early morning hours of April 19, 1995.[1]

---------------------------------------

FOOTNOTES:

[1] Several witnesses interviewed by ABC News 20/20, including an attorney

and a private process server, among others, claim to have seen law

enforcement using sniffer dogs, as well as a "bomb disposal" or "bomb squad"

unit truck near the Murrah Building in the early morning hours of April 19,

1995, shortly before the bombing. See attached Exhibit "D" (transcript of

ABC News 20/20 broadcast, January 17, 1997). Oklahoma County Sheriff J.D.

Sharp denied the presence of the Oklahoma County bomb squad truck, telling

local media on the record that the county bomb truck was ten miles away from

downtown and nowhere near the country courthouse. See attached Exhibit "E."

However, the County Sheriff's office later stated that the bomb squad unit

was in fact in downtown Oklahoma City the morning of the bombing for a

routine training exercise. See attached Exhibit "H." This information was

confirmed to the defense through discovery. See exhibits "J" and "K" The

presence of the bomb squad truck was commented on by several other persons

and mentioned in a business newsletter of one downtown Oklahoma City

business. See attached Exhibit "F';; see also Exhibit "G" (news account of

witness in Oklahoma City who recalled that, "The day was fine, everything

was normal when I arrived at 7:45 to begin my day at 8:00 a.m., but as I

walked through my building's parking lot, I remember seeing a bomb squad.")

---------------------------------------

But rather than admit that it acted, no matter how superficially or limited

on this information, the government has chosen to deny, and maybe even

withholding from the chief prosecutor, evidence of this prior warning from

an informant it deemed reliable because she regularly passed polygraph

tests. The defense has repeatedly sought by letter, motion, argument in

chambers and in open court, detailed information which it knows the

government has.

The district court has repeatedly advised the government, both in published

opinions and in judicial statements, of the government's duty. The

government has claimed it understood its duty. We submit the government has

affirmatively misled the district court repeatedly on this subject, through

prosecutors who may or may not know the truth. The government, in short, is

stonewalling. The Defendant has made a sufficient showing below for a

judicial order compelling the FBI, the Department of Justice, ATF,

Department of State, the National Security Agency, and the Central

Intelligence Agency to produce information to support the Defendant's claims

which are a material part of his defense.

Timothy McVeigh's defense is that (1) he did not rent the Ryder truck (2) he

did not assemble a bomb at Geary Lake State Park (3) he did not drive the

Ryder truck to Oklahoma City, and (4) he did not detonate the bomb. There is

a lack of credible government evidence to convince any fair-minded jury

beyond a reasonable doubt that he did in fact do these things, and there is

credible testimony and evidence known to the government and the defense

which impeaches each of the government's claims down to and including who

rented the truck the number of conspirators, where the bomb was assembled,

and who left the truck after parking it in front of the Murrah Building. The

information which will help to establish Mr. McVeigh's innocence in front of

the jury, particularly in light of the recent bizarre disclosures by two

thieves[2] masquerading as journalists, is uniquely in the hands of the

government.

---------------------------------------

FOOTNOTES:

[2] In late January, one stole computer information by personally

downloading from a defense lap top computer material he was not authorized

to receive. The other secured the information by personal, unethical and

immoral means plus theft, and then proceeded to embellish the stolen

document with language found no place in the document which he

mischaracterized (because it bore a computer generated logo "Attorney Work

Product, Privileged and Confidential, Attorney/Client Communication") as

coming from the Defendant. A Motion to Dismiss the Indictment and Abate the

Proceedings Through a Change of Venue or Continuance was denied by the

Respondent Trial Court on Monday, March 17, 1997. See D.E. 3429.

---------------------------------------

However, with the resources allowed it by the district court pursuant to the

Crimes and Offenses Act of 1790 as modified by the Criminal Justice Act of

1963, the Defendant has made a substantial investigation and has produced

volumes of evidence and specifications of materiality to the district court

ex parse, in camera and on some occasions in open court or in camera with

the prosecutors. The government's reaction has consistently been first to

deny, then to produce a scant amount of information as the Defendant files

formal motions, then to produce a little bit more just before the hearing,

then to deny the existence of anything else, then when the "anything else"

surfaces, grudgingly to admit that it has been found. See D.E. 1918 at 6-35.

There is no better example of this

than the government's submission to the defense in January, 1996 of a

two-page FBI Insert of a conversation with Carol Howe in which she is not

identified by her last name and every proper noun, including Dennis Mahon,

Andreas Strassmeir, Elohim City, and the Reverend Robert Millar, is

grotesquely misspelled so that it could not reasonably be found. D.E. 3313,

Exhibit "D."

Then, when this information surfaced, the government informed the Court that

Ms. Howe had been an ATF informant until a date several weeks prior to April

19, 1995. See Transcript of Scheduling and Rule 17.1 Conference--Sealed,

January 29, 1997, at 67. Then, when the defense discovered that in fact she

had continued to be an informant after the bombing, the government

acknowledged to the Court that in fact she had been an ATF informant in late

April and early May 1995 and had been sent back to Elohim City.[3]

---------------------------------------

FOOTNOTES:

[3] The government on background (see below) has confirmed details given to

the Court in camera to ABC and NBC News. Hence the discussion here.

---------------------------------------

See D.E. 3360 at 2-4. The same pattern of disingenuous,

economical-with-the-truth statements and representations by the government

to the district court permeates its claims concerning FBI Laboratory

material (now presumably largely furnished), prior warnings, possible

foreign involvement, and other material.

The Petitioner asks this Court to enter a Writ of Mandamus directing the

District Court to enter an order commanding the government to produce the

material requested in the manner outlined by the defense in sealed district

court documents D.E. 2768 and D.E. 3123. The District Court has declined to

do so. See D.E. 3016; D.E. 2840 (January 8, 1997 Pretrial Conference: Volume

m--Sealed); D.E. 2866 (January 9, 1997 Pretrial Conference: Volume

IV--Sealed); D.E. 3410 (March 10, 1997 Pretrial Hearing--Sealed--Not

Provided to Defendant Nichols). The defense has made a sufficient showing

under Brady and Rule 16 that the requested information is required in order

to defend properly against the allegations in the Indictment and for a

fundamentally fair trial in this capital case.

In order to file this Writ of Mandamus and make the appropriate allegations,

most of the material relied upon originates from the public record, what has

appeared in the press, and open judicial proceedings. In a few cases, names

have been redacted or otherwise modified in order to protect the rights of

other persons not on trial and to protect the security and secrecy of

information.[4]

---------------------------------------

FOOTNOTES:

[4] Information given to the media by the government or others, even if the

substance of the same material was filed under seal, is included here

because it is already in the public record through interviews with the media.

---------------------------------------

All of the documents filed under seal, some of which are ex parte, in camera

pursuant to controlling caselaw, are identified by Docket Number ("D.E.")

and within that Docket Number the exhibit number or page number so that the

Court may quickly find the material.

This issue arrives before the Court at this late date simply because the

defense has repeatedly gone to the government with information and requests,

had to then seek intervention from the district court, and the last district

court order has been issued within the last two weeks. D.E. 3410. The

district court has denied defense motions for either a continuance or, in

the alternative, a dismissal. Trial is now set to commence on March 31,

1997, with the selection of the jury. The defense moves that the Court,

while considering this matter, either stay the commencement of the trial, or

proceed with jury selection but stay the commencement of evidence being

received until this matter has been resolved in this Court.

One hundred and sixty-eight people died in the Oklahoma City bombing. The

devastation was total and complete. The public is entitled to accept the

jury's verdict, whatever it is, with safety and confidence, bizarre press

sensationalism and government stonewalling notwithstanding. The Petitioner

is entitled to the relief set forth herein in order that he may meet the

government's evidence.

[CONTINUED IN PART FOUR]

PART FOUR OF EIGHTEEN

STATEMENT OF MATERIAL FACTS

II. PHYSICAL AND POLITICAL MAGNITUDE OF THE DESTRUCTION OF THE

ALFRED P. MURRAH! FEDERAL BUILDING.

A. Immediate Effects of the Explosion.

On April 19, 1995, at approximately 9:02 a.m. a "massive explosive"

detonated outside the Alfred P. Murrah Federal Building in Oklahoma City,

Oklahoma. The shockwave of the explosion blew into and through the Murrah

Building and scores of other buildings in the downtown Oklahoma City area,

including the United States Courthouse located just one block away. D.E. 222

at 1. Alerted by the concussion of the blast, crowds of persons appeared

from the areas surrounding the blast site and immediately began to tend to

the injured, most cut by flying debris and still in uncomprehending shock at

what had happened. Persons present near the explosion began to comprehend

the scale of destruction that had occurred when they looked at the gaping

ruins that moments before had been a federal office building--but which in a

matter of seconds had been turned into a grave site for 168 federal workers

with scores still trapped and injured in the collapsed, still smoking building.

When the explosion occurred, the United States Courthouse trembled one block

away as if caught in an earthquake. Over one hundred 36" by 54" windows

shattered and flew into the Courthouse. Id. Inside, heavy courtroom doors

were jammed, courtrooms were flooded with broken glass, judges' chambers

were turned into piles of plaster, fallen ceiling tiles, and broken glass.

Shards of glass peppered and scarred desks, courtroom furniture, and walls.

Inside the Courthouse and the remaining structure of the Alfred P. Murrah

Building, there was pandemonium. People ran screaming from courtrooms,

judges' chambers, and offices. The halls quickly became jammed with

panic-stricken people and a stifling mixture of dust and acrid smoke. The

Courthouse exits were destroyed, making evacuation excruciatingly slow for

everyone. No one had any idea what had befallen them or those far less

fortunate in the Murrah Building. Terror and shock permeated the Federal

Courthouse, the trapped survivors of the Murrah Building, and the occupants

of surrounding buildings. See D.E. 222 at 6. The destruction of the Murrah

Building, and the subsequent investigation by federal and state law

enforcement, is simply unparalleled in American history. The resulting

criminal prosecution of Timothy James McVeigh and Terry Lynn Nichols has

resulted in an Indictment which accuses these two Defendants of

participating in a crime which encompasses the intentional homicides of 168

people, inflicting injuries upon 503 others, damaging 320 structures in the

area surrounding the Murrah Building, and being responsible for

approximately $651 million dollars in recovery costs. D.E. 215 at 16.

This is a federal criminal case in which the able 53-year-old Republican

Governor of Oklahoma, Frank Keating, stated that the bombing in Oklahoma

City was unlike anything he had ever seen as an FBI Agent, U.S. Attorney, or

law enforcement official in the Reagan and Bush Administrations. This is a

case in which Kevin McNally, Federal Death Penalty Resource counsel, stated

in a sworn affidavit that, to his knowledge, is the largest murder case in

American history. Id.

This is a case which immediately captured the personal attention of the

President of the United States, resulting in a trip to Oklahoma City by

President Clinton to address survivors of the bombing and the nation. This

is a case in which a Federal Grand Jury met and a preliminary hearing was

held on an Air Force Base amidst the chirping of a family of birds because

the bombing had significantly destroyed the Federal Courthouse in Oklahoma

City. See United States v. McVeigh, No. M-95-98-H, Transcript of Preliminary

Hearing had on April 27, 1995 at 3. The magistrate presiding over the

preliminary hearing noted with judicial understatement that this case

presented "unusual circumstances." Id. at 4. Susan Otto, the Federal Public

Defender for the Western District of Oklahoma, in support of a Motion to

Transfer, stated that she had not found a case in the history of this

country that was of such magnitude. Id. at 10. This is now a capital case

involving multiple investigation sites including Oklahoma, Kansas, Michigan,

Arizona, New York, Florida, as well as others worldwide.

This is a case in which Judge Russell, in granting the government more time

to issue an Indictment, observed that the facts upon which the Grand Jury

must ultimately base its determination are "highly unusual" and "complex";

that the April 19, 1995, bombing of the Murrah Building was an act of

unprecedented terrorism resulting in a massive criminal investigation; that

the criminal investigation has required the government to follow up more

than 100,000 phone calls, analyze thousands of business records, and

interview hundreds of witnesses and potential witnesses; and that there

exists a huge volume of evidentiary material subject to a myriad of chemical

and physical tests. See D.E. 107 (United States v. McVeigh, No. M-95-98-H,

Order filed June 12, 1995 at 5).

Three of the most rarely granted defense requests in criminal litigation

were granted in this case because of its unique nature. This Court, in

considering a Petiton [sic] for Writ of Mandamus, removed the then-presidng

[sic] Judge assigned to this case in the initial stages. See Nichols v.

Alley, 71 F. 3d 347 (10th Cir. 1995). As a result of this Court's decision,

the Chief Judge of this Circuit assigned Chief Judge Richard P. Matsch to

preside over this litigation. See D.E. 711. After giving careful

consideration to the facts of this case, Chief Judge Matsch changed the

venue of the prosecution to Denver, Colorado (918 F. Supp. 1467 (D. Colo.

1996)), and subsequently granted the defendants' motions for a severance

(169 F.R.D. 362 (D. Colo. 1996)). See D.E. 984; 2376. Timothy McVeigh will

be tried beginning March 31, 1997. D.E. 3429

B. The Response of the Federal Government.

The prosecution in this case has at its disposal the resources of every

federal, state, and local agency in the United States to interrogate,

arrest, prosecute and convict those the Grand Jury charges with the bombing

of the Alfred P. Murrah Building. The President of the United States pledged

to send "the world's finest investigators to solve these murders." See D.E.

1079 at 10. Within hours of the President's statement, the Attorney General

of the United States emphatically stated that "[t]he FBI and the law

enforcement community will pursue every lead and use every possible resource

to bring these people responsible to justice." Id. Innumerable federal

agencies have participated in the investigation of this case. The day after

the bombing the New York Times reported as follows:

From offices and bases around the country, government

aircraft carried to Oklahoma City an array of federal

law enforcement officials, emergency management personnel

and military forces, an operation that constituted one

of the vastest[sic] responses to a crime in American

history.

A 24 hour FBI command center with 400 telephones was

established in Oklahoma to coordinate the work of

explosives teams, bomb technicians and portable scientific

gear used to analyze chemical residues.

D.E. 1079 at 10-11.

According to a May 31, 1995, "Nightline" broadcast interview of former FBI

Assistant Director Buck Revell, ". . . when you have an event of [the

Oklahoma City bombing's] magnitude, you have to cast a very broad net." D.E.

1079 at 11. The President of the United States "dispatched a small army of

federal investigators to Oklahoma and pledged a relentless hunt for the

killers." Id.

1. The Government's Immediate Response to the Bombing.

a. Mobilization.

The government began its search for suspects within minutes after the

gravity of the Oklahoma City bombing became apparent. The White House

Situation Room, the Federal Bureau of Investigation's (FBI) Command Center,

the Central Intelligence Agency's (CIA) Watch Office, and other agencies'

nerve centers undoubtedly monitored media reporting of the bombing and

established communications with personnel located at or near the scene in

Oklahoma City. D.E. 1079 at 2. Government agencies throughout the United

States were alerted to the potential for similar attacks.

At the White House, a "crisis team" was convened in order to coordinate the

intensive investigation. Id. at 13. This team, under the direction of the

Justice Department, consisted of personnel from the Bureau of Alcohol,

Tobacco and Firearms, the Federal Bureau of Investigation, the Secret

Service, the Central Intelligence Agency, the National Security Agency, and

members of the National Security Council. According to media reports, this

crisis team was formed in the wake of the blast and met on Wednesday, April

19, 1995, via teleconference in Washington and convened again on Thursday

morning at the White House. Id.

CIA spokesman David Christian has verified to the media that the agency was

involved in the Murrah bombing investigation. Id In addition, the

investigative machinery of U.S. military intelligence agencies has been

utilized in this criminal case. One media source reported that "the nation's

intelligence community, the CIA and defense intelligence officials, also

will contribute information, and send their own agents overseas to work

digging up leads, according to the law enforcement experts." Id.

Civilian and military intelligence agencies were placed on the highest alert

here in the United States and similar warnings of impending attacks were

forwarded to United States installations overseas. For example, The CIA's

Directorate of Operations (DO) transmitted to stations and bases worldwide a

high precedence cable instructing agency officers to query sources for

information about the attack. The FBI's Counterterrorism Center issued a

directive to all CIA stations to search their international sources for

possible leads among foreign terrorist groups. Id. at 14.

Officers in the CIA Directorate's six overseas divisions immediately began

arranging meetings and conducting debriefing sessions. The domestic arm of

the DO - the National Resources (NR) Division - also began combing contacts

for leads concerning the bombing. (NR Division's procedures for obtaining

information are described in United States v. Reward, 889 F. 2d 836 (9th

Cir. 1989), although NR is described therein as the Domestic Collection (DC)

Division).

The CIA's sources include individuals holding positions in governments,

military services, corporations, universities, political parties, and

terrorist groups. Id. The agency's officers utilized both unilateral assets

- those who are cooperating with the United States unbeknownst to their

superiors; and liaison relationships - formal contacts between the CIA and

foreign law enforcement, intelligence, and security agencies. Military

Intelligence and the CIA similarly obtain information through the use of

ostensibly private or commercial entities that are, in fact, intelligence

platforms. Through liaison relationships, the government is also able to

avail itself of the multitude of sources operated by foreign governments.

See infra for description of assistance from Israel.

b. Evidence From Public Sources of Government Use of Intelligence Networks

With Foreign Nations in the Investigation of the Alfred P. Murrah Building

Bombing.

In its annual report, the State Department's Office of the Coordinator for

Counterterrorism reports that the Clinton Administration is "deeply engaged

in cooperation with other governments in an international effort to combat

terrorism[.]" D.E. 1079 at 15. Such cooperation includes an "active network

of cooperative relations with counterparts in scores of friendly countries"

involving United States intelligence and law enforcement agencies. Id. The

State Department's Office of the Coordinator for Counterterrorism conducts

consultations on counterterrorism with many other governments including G-7

nations and the European Union. Additionally, there are now 11 treaties

and conventions that commit signatories to combat various terrorist crimes. Id.

United States government agencies, including the CIA and FBI, maintain

liaison relationships with many countries. The Supreme Court has recognized

the existence of these relationships, as well as the United States

government's receipt of information through such contacts. See Snepp v.

United States, 444 U. S. 507, 512 (1980) (''[T]he CIA obtains information

from the intelligence agencies of unfriendly nations and from agents

operating in foreign countries"). The United States derives substantial

information from these associations. These liaison relations would have

provided numerous reports concerning the Oklahoma City bombing, possible

motives for the bombing, and possible suspects other than Timothy McVeigh.

[CONTINUED IN PART FIVE]

PART FIVE OF EIGHTEEN:

In an interview on CNN on April 20, 1995, White House Chief of Staff Leon

Panetta confirmed that the Justice Department was reviewing all of the

intelligence network data in order to determine whether there are any leads.

D.E. 1079 at 15. Mr. Panetta stated that the investigation into the bombing

clearly involves looking at communications, both within the United States

and outside the United States. Id. Also, CNN's State Department

correspondent Steve Hurst stated that there was bound to be a volume of

cable traffic coming into the State Department and into the CIA from

stations abroad concerning information about the bombing. Presumably, Mr.

Hurst is proficient and knowledgeable in the operations of the State

Department, and his observations are supported by other media accounts

establishing an FBI directive to CIA stations to search its international

sources for possible leads among foreign terrorist groups. Id. at 16.

c. CIA and NSA Investigation Protocol.

In the immediate aftermath of the bombing, the CIA searched its databases

for candidates who might have the means and motive to perpetrate the

bombing. The databases were also used to verity the bona fides of sources

providing leads. The CIA's stations and bases submitted numerous "name

traces" on individuals as a result of the bombing investigation. These

traces were requests for information on individuals, including those

suspected of having knowledge of the bombing. Technical assets, such as

global, regional, and local communication intercepts and reconnaissance

satellites, were also used to obtain or verify information about the

Oklahoma City bombing.[5]

------------------------------------

FOOTNOTES:

[5] On May 10, 1995, the government, as part of its investigation of the

bombing of the Alfred P. Murrah Building, enlisted the aid of the 1st

Infantry Division at Fort Riley, Kansas, in obtaining Global Positioning

System (GPS) readings for twenty (20) geographical sites. These readings

were taken by the "Magellan GPS Nav 1000." The readings were taken "for

possible satellite photograph requests[.]" D.E. 1079 at 16 n.7 (Exhibit "D").

------------------------------------

The CIA's Counterterrorism Center was the focal point for all reports. The

information gathered was then sent to government analysts and other official

consumers, including the Justice Department. Id. at 16-17.

Also in response to the attack the National Security Agency (NSA) promptly

supplemented their existing "watch list" for domestic terrorist threats with

specific terms related to the Oklahoma City bombing, potential suspects and

suspect organizations. Id. at 17. A watch list enables NSA listening posts

to key on specific words spoken in their global net of intercepted oral

communications. The National Reconnaissance Office (NRO) was also requested

to assist in the investigation of the bombing by providing satellite

photography. Id.

The NSA's sole reason for being is to intercept electronic messages

worldwide and analyze these interceptions for useful intelligence and

national security information. As reported by the Senate Select Committee to

Study Government Operations with Respect to Intelligence Activities:

[Tlhe National Security Agency was created by Executive Order in 1952 to

conduct 'signals intelligence' including the interception and analysis of

messages transmitted by electronic means, such as telephone calls and

telegrams. D.E. 1079 at 17.

Lewis Allen, a General in the United States Air Force and then-Director of

the National Security Agency, testified before the Committee that the

"mission of the NSA was directed to foreign intelligence obtained from

foreign electrical communications[.]" Id.

But in delineating the scope of the NSA's mission, the Committee pointed out

that the NSA has interpreted "foreign communications" to include

communication where one terminal is outside the United States. Under this

interpretation, the NSA has for many years intercepted communications

between the United States and a foreign country, even though the sender or

receiver was American. Thus, the full range of the NSA's sphere of

interceptions is virtually unlimited and unchecked. Id. at 17-18.

Yet, the NSA is allowed specifically by Executive Order to assist domestic

law enforcement authorities and to participate in law enforcement activities

to investigate or prevent clandestine intelligence activities by foreign

powers, or international terrorists or narcotics activities. Id. at 18

(Executive Order 12333). With respect to methods of interception utilized by

the NSA, a Senate Select Committee has reported the following:

The use of lists of words, including individual names,

subjects, locations, etc., has long been one of the

methods used to sort out information of foreign

intelligence value from that which is not of interest.

In the past, such lists have been referred to

occasionally as watch lists, because the lists

were used as an aid to watch for foreign activity

of reportable intelligence interest. However, these

lists generally did not contain names of U.S. citizens

or organizations. The activity in question is one in

which U.S. names were used systematically as a basis

for selecting messages, including some between U.S.

citizens, when one of the communicants was at a

foreign location.

D.E. 1079 at 18.

The system and the procedure for selection and interception has been

described in the Select Committee report on the handling of the "watch lists":

The information produced by the watch list activity

was, with one exception, entirely a byproduct of our

foreign intelligence mission. All collection was

conducted against international communications with

at least one terminal in a foreign country, and for

purposes unrelated to the watch list activity. That

is, the communications were obtained, for example,

by monitoring communications to and from Hanoi.

The watch list activity specifically consisted of

scanning international communications already

intercepted for other purposes to derive information

which met watch list requirements. This scanning

was accomplished by using the entries provided to NSA

as selection criteria. Once selected, the messages

were analyzed to determine if the information met

those requesting agencies' requirements associated

with the watch lists. If the message met the

requirements, the information therein was reported

to the requested agency in writing.

D.E. 1079 at 18-19.

Significantly, the NSA's interception of international communications

sometimes includes, either incidently [sic] or accidently [sic],

communications between two American citizens if one of them happens to be

abroad. Id. at 19.

Thus, within hours of the bombing of the Murrah Building, the NSA's

supplemented watch lists would have enabled the agency to pluck a huge

amount of data from its incredible volume of global electronic

interceptions. The result, within this agency alone, would have been a

massive amount of relevant information concerning the bombing, none of which

has been given to the defense in this case.

Procedures similar to the CIA's, NSA's, and NRO's for gathering information

on the bombing were employed by foreign and domestic personnel of the

Department of Justice and its enforcement agencies (the FBI, the Drug

Enforcement Administration (DEA), the Immigration and Naturalization Service

(INS), and the U.S. Marshals); the Department of State's Bureau of

Diplomatic Security (DS); the CIA's Office of Security (OS); the Department

of the Treasury's Bureau of Alcohol, Tobacco and Firearms (BATF, Customs

Service (USCS)), Internal Revenue Service (IRS), and Secret Service (USSS);

the Postal Service's Postal Inspectors; The Department of Defense's Armed

Services, Defense Intelligence Agency (DIA), Naval Criminal Investigative

Service, and the Defense Investigative Service, the General Services

Administration's Federal Protective Service; the Department of

Transportation's Coast Guard; and the Federal Aviation Administration (FAA).

Other agencies, bureaus, and departments participated in the gathering of

information as well. Personnel at all levels, suspecting the bombing to be a

large scale terrorist attack resulting in numerous deaths, immediately

mobilized all resources at the government's disposal. The result was a

mammoth investigation without political or geographic limits. Id. at 19-20.

2. Evidence of the International Scope of the Investigation and the

Involvement of Organs of State Intelligence in Several U.S. Domestic Bombing

Cases Including the Alfred P. Murrah Building.

The criminal investigation of this case included the use of the civilian and

military branches of government; law enforcement, intelligence, and security

agencies; foreign and domestic personnel and technical resources; and

similar assets of other nations. The international scope of the

investigation of this case is underscored by comments made by the Attorney

General at an April 20, 1995, press conference:

[Reporter]: The government of Israel has offered its

help, because it has a vast experience with this sort

of thing. Do you know if we are accepting that help?

[Attorney General Reno]: We will, of course, rely

on any additional resource that can possibly be

involved and be utilized appropriately in bringing

these people to justice.

D.E. 1079 at 20.

In a 1981 Executive Order, President Reagan authorized agencies within the

intelligence community to "participate in law enforcement activities to

investigate or prevent clandestine intelligence activities by foreign powers

or international terrorist or narcotics activities[.]" Id. at 21 (Executive

Order 12333, December 4, 1981). The intelligence community is also

authorized to provide specialized equipment, technical knowledge or

assistance of expert personnel for use by any department or agency or, when

lives are in danger, to support local enforcement agencies. Thus, the Chief

Executive of this country has authorized specifically the use of instruments

of state intelligence to aid law enforcement agencies in investigating

terrorist attacks.

The United States Department of State has acknowledged the federal

government's use of intelligence organizations in response to terrorism: "A

central element in the effective international effort to prevent and/or to

bring about to justice those responsible for such attacks is the effective

exchange of intelligence. The United States intelligence community is

cooperating closely and effectively with other services as part of the

international effort to identify those responsible[.]" Id. D.E. 1079 at 21.

In fact, a report issued from the State Department's Office of the

Coordinator for Counterterrorism states:

Because terrorism is a global problem, the Clinton

administration is deeply engaged in cooperation with other

governments in an international effort to combat

terrorism: U.S. intelligence and law enforcement

agencies have an active network of cooperative relations

with counterparts in scores of friendly countries.

D.E. 1079 at 21-22.

Such cooperative efforts have been further chronicled in the mainstream

press: "In the bombing of the World Trade Center, in February 1993, the FBI,

CIA and other agencies scoured the globe for leads and found many," Brian

Duffy, et al., Extremism In America, U.S. New and World Report, May 8, 1995

at 30, and in the May 7, 1995, San Diego Union tribune article regarding the

investigation into the car-bombing of a United States Navy captain - "[T]he

CIA, the National Security Administration [sic], the Bureau of Alcohol,

Tobacco and Firearms, the Naval Criminal Investigative Service and local

law-enforcement agencies were involved." See D.E. 1079 at 22.

As previously noted, after the bombing the initial "crisis team" assembled

in the White House Situation Room consisted of personnel from the BATF, the

FBI, the Secret Service, the National Security Agency, the Central

Intelligence Agency, and members of the National Security Council. Id. at

22. Military officials from the defense intelligence agencies have

participated in this investigation as well. Finally, the White House Chief

of Staff, Leon Panetta, confirmed that the Justice Department conducted a

review of data gathered from intelligence networks, including communications

from both within the United States and outside the United States. Id.

Thus, from its very inception, the investigation launched by the federal

government in this case has utilized the resources of the FBI and other

domestic law enforcement agencies in tandem with the intelligence gathering

entities of the federal government with the imprimatur of an executive order

allowing such a symbiotic relationship. In the first 48 hours after the

bombing, the domestic law enforcement and intelligence agencies of the

federal government were mobilized and directed toward foreign terrorists

(concentrating on those from the Middle East) with no limit on available

manpower, assets, technology, and without regard to geographical borders.

3. The Investigative Focus Upon Foreign Terrorists.

News reports conclusively establish that the FBI's early analysis and the

judgment of other counterterrorism experts pointed towards foreign

responsibility for the Oklahoma City bombing. See D.E. 1079 at 23. CBS News

reported shortly after the bombing that the FBI had received claims of

responsibility for the attack from at least eight organizations. Seven of

the claimants were thought to have Middle Eastern connections. D.E. 1079 at

23. Steven Emerson, an expert on Islamic Jihad said: "There is no smoking

gun. But the modus operandi and circumstantial evidence leads in the

direction of Islamic Terrorism." The government received calls from six

people saying that they were from different Muslim sects and asserting that

they were responsible for the bombing. Id. at 23-24.

On April 20, 1995, the New York Times reported that federal authorities

opened an intensive hunt for the perpetrators of the bombing and "proceeded

on the theory that the bombing was a terrorist attack against the

government, law enforcement officials said." Id. at 24. The immediate

speculation according to some experts, focused on the possibility that the

attack had been the work of Islamic militants, similar to those responsible

for the World Trade Center bombing in February of 1993. D.E. 1079 at 24.

John Magaw, director of the Bureau of Alcohol, Tobacco and Firearms, when

asked whether his agency suspected terrorists, told CNN: "I think any time

you have this kind of damage, this kind of explosion, you have to look there

first." The FBI even went so far as to approach the Department of Defense

about including Pentagon Arabic speakers in the investigative team. Former

FBI Assistant Director in Charge of Investigation and Counterterrorism

Expert Oliver "Buck" Revell, was quoted as saying, "I think what we've got

is a bona fide terrorist attack." Mr. Revell went on to state, "I think it's

most likely a Middle East terrorist. I think the modus operandi is similar.

They have used this approach." D.E. 1079 at 24.

FBI officials in Washington, speaking anonymously, suggested strongly the

investigations were focusing on Middle East terrorists . . . among the leads

being investigated was a television report of three males of Middle East

origin who rented a brown Chevrolet pickup at the Dallas-Fort Worth

International Airport. Witnesses have reported seeing three men driving away

from the blast area in a similar pickup. D.E. 1079 at 25.

An FBI communique that was circulated Wednesday suggested that the attack

was carried out by the Islamic Jihad, an Iranian-backed Islamic militant

group. The communique suggested the attack was made in retaliation for the

prosecution of Muslim fundamentalists in the bombing of the World Trade

Center in February, 1993, said the source, a non-government security

professional. "We are currently inclined to suspect the Islamic Jihad as the

likely group," the FBI notice said. See D.E. 1079 at 25.

The FBI's suspicion of an Islamic Jihad connection would have been further

reinforced by a sobering fact: Oklahoma City is probably considered one of

the largest centers of Islamic radical activity outside the Middle East. Id.

at 26. The extensive loss of life and the targeting of a federal facility

motivated law enforcement, the military, and U.S. intelligence agencies to

engage in the full range of overt and covert resources located throughout

the world. Their mission was two-fold: stop other possible attacks, and

identify the individuals and groups responsible for the Murrah Building bombing.

The government's far-reaching efforts in pursuit of Middle Eastern suspects

in this case have become part of the public record. An affidavit of FBI

Special Agent Henry C. Gibbons, filed in United States v. Abraham Abdallah

Ahmed, No. M-95-94-H, W.D. Okla., April 20, 1995, strongly suggests

intelligence assets are being used in the bombing investigation. See D.E.

1079 (Exhibit "E"). Gibbons' affidavit explains how a Jordanian American

suspect's luggage was searched in Italy, and how the suspect was detained by

British authorities and then forcibly returned to the United States. Id.

That a suspect of Middle Eastern origin was promptly apprehended confirmed

the widely-held suspicion that a foreign terrorist group would be implicated

in the bombing. According to the New York Times, Abraham Ahmed as "caught in

the dragnet that spread around the world after the bombing." The newspaper

went on to state:

In his case, he was first singled out for attention

in accordance with a general profile of possible

suspects, including young men traveling alone to

destinations like the Middle East. The profile was

issued by the FBI to police agencies and airport

authorities throughout the world.

Mr. Ahmed lives in Oklahoma. He checked into O'Hare

International Airport in Chicago on Wednesday night for

a flight to Rome, with connections for a flight to

Amman, Jordan. In addition to fitting the suspect

profile, he was dressed in a jogging suit similar to

one that a witness in Oklahoma City had reported

seeing worn by a man at the scene of the explosion.

D.E.1079 at 27. The initial focus on foreign terrorist connections

undeniably placed the intelligence community at the forefront of the

investigatory efforts, since United States intelligence assets exist solely

to protect against such foreign threats.

Nor is the government's focus limited to the Middle East. The Sunday Times

in London reported on February 4, 1996, that senior FBI sources have

confirmed that the Bureau was "also pursuing inquiries into a possible

neo-Nazi link between the Oklahoma City bombers and British and German

extremists." D.E. 1079 at 27. Because of Defendant Terry Nichols' ties to

the Philippines, within days of the bombing U.S. and Philippine officials

began reconstructing his movements there.

An American Embassy legal attache interviewed Marife Nichols' father,

Eduardo Torres, and showed him sketches of the two original bombing

suspects. Id. at 27-28. Philippine intelligence agents briefly placed Mr.

Torres under surveillance to make sure he was not involved with terrorism.

Id. Clearly then, the tentacles of the federal government have reached out

worldwide in the investigation of the bombing of the Murrah building.

Compelled by the urgency of a grievous attack on the United States

government itself, resources ordinarily dedicated to military and

intelligence applications were brought to bear on a domestic criminal

investigation. By the government's commitment of such resources to a

criminal investigation, the Defendant becomes entitled to the product of

these resources, so that they may be as fairly and justly applied to his

defense as they are to his prosecution.

[CONTINUED IN PART SIX]

PART SIX OF EIGHTEEN:

III. THE ARREST OF TIMOTHY MCVIEGH.

On April 21, 1995, federal law enforcement officials became unshakably

focused upon Timothy McVeigh who was being held in the Noble County Jail in

Perry, Oklahoma, on various state misdemeanor charges. See D.E. 1457 at 4.

Mr. McVeigh had been pulled over by an Oklahoma Highway Patrolman, Charles

Hanger, on Interstate Highway 35 on the morning of April 19, 1995. McVeigh

was driving a 1977 pale yellow Mercury Marquis, and was stopped by Trooper

Hanger because the car McVeigh was driving displayed no license plate.

McVeigh told Trooper Hanger that he was returning from Arkansas.[6]

---------------------------------------

FOOTNOTES:

[6] Evidence held by the government and Defendant clearly shows Mr. McVeigh

traveled to and from Arkansas on a frequent basis.

---------------------------------------

Hanger arrested McVeigh on the basis of the traffic violation and the state

misdemeanor charge of carrying a weapon. McVeigh's yellow Mercury was left

on the side of the highway and was not impounded.

Between April 19, 1995, and April 21, 1995, federal law enforcement

officials traced a Vehicle Identification Number appearing upon the axle of

the truck believed to have carried the bomb to a Ryder rental truck

dealership in Junction City, Kansas. The FBI prepared a composite drawing of

"unidentified subject #1" based upon descriptions provided by witnesses at

the Ryder rental dealership. By showing the composite drawing to employees

at various motels in Junction City, Kansas, the FBI "determined" that the

drawing resembled a man named Timothy McVeigh that had been a guest at the

Dreamland Motel in Junction City from April 14-18, 1995. A records check

then revealed that a man named Timothy McVeigh was in custody in the Noble

County Jail in Perry, Oklahoma, facing state misdemeanor charges.

The FBI, knowing their suspect was in custody at a small county courthouse

in Oklahoma, proceeded to orchestrate what is now commonly referred to as

the "perp walk" in which a criminal suspect is led away from confinement in

shackles by law enforcement personnel for the media and all to see. The FBI

was not disappointed. See D.E. 2825 at 7. Mr. McVeigh was detained in the

courthouse while the world media gathered and his walkout was timed for the

evening network news broadcast. With the nation, and indeed much of the

civilized world watching, Timothy McVeigh, wearing a bright orange prison

jumpsuit and no protective vest, shackled at the wrists and ankles, and

wearing a militarystyle haircut and a "thousand yard" stare, was paraded

before a mob of angry citizens, many of whom shouted repeatedly, "baby

killer, baby killer" at him. This was how the Petitioner was transferred to

federal custody.[7]

------------------------------------------

FOOTNOTES:

[7] The government claims the delay was caused by the wait for a Federal

Warrant and a State Judge who granted Mr. McVeigh the opportunity to confer

with a local attorney who had repeatedly been blocked from seeing the

Defendant by the local Assistant District Attorney. The attorney filed a

Motion for Habeas Corpus to produce Mr. McVeigh for an interview which was

granted. Thus, the delay was not caused by the Judge or the attorney, but

the State prosecutor. A Federal John Doe 1 Warrant was already in place.

-----------------------------------------

[CONTINUED IN PART SEVEN]

PART SEVEN OF EIGHTEEN:

IV. THE GRAND JURY RETURNS THE INDICTMENT OF "OTHERS UNKNOWN."

On August 10, 1995, a Federal Grand Jury sitting in the Western Judicial

District of Oklahoma returned an eleven count Indictment accusing Timothy

James McVeigh and Terry Lynn Nichols of conspiring to use a weapon of mass

destruction, actual use of a weapon of mass destruction, destruction by

explosive, and eight counts of first degree murder.

(Indictment in CR95-110, filed August 10, 1995, no docket number assigned).

The Indictment alleges that McVeigh and Nichols constructed a truck bomb and

on April 19, 1995, McVeigh parked the truck bomb directly outside the Alfred

P. Murrah Federal Building during regular business and day-care hours. The

Indictment then lists the names, spread out over six typewritten pages, of

the persons present at the Alfred P. Murrah Federal Building on the morning

of April 19, 1995, and who were killed as the result of the explosion.

The Grand Jury found evidence that Timothy McVeigh and Terry Nichols

conspired and agreed together with "others unknown to the Grand Jury" to use

a truck bomb against the federal government, and specifically against the

Alfred P. Murrah Building located at 200 Northwest 5th Street in Oklahoma

City, Oklahoma, which resulted in the destruction of the building, grevious

[sic] bodily injury to scores of persons, and the death of 168 persons. See

Indictment at 1-2. This Indictment has never been withdrawn or modified.

Thus, the Grant Jury's allegation on the eve of trial is that this crime was

committed and aided by "others unknown." By refusing to provide the

requested discovery material, the government is attempting to prevent the

Petitioner from learning the identity of what it calls "others unknown" but

which the petitioner characterizes as "the unknown others."[8]

--------------------------------------

FOOTNOTES:

[8] The government has claimed below, and will undoubtedly assert here, that

it has provided "unprecedented discovery" and gone far beyond what the rules

and case law require. That claim is hollow and empty. Chief Judge David

Russell of the Western Judicial District, before the return of the

Indictment, attempted to schedule a discovery conference in order to

facilitate the orderly flow of discovery, but the government refused to

attend. The defense was willing to attend. Upon the return of the

Indictment, the standing orders of the Federal Judges in the Western

Judicial District, where the case was pending, were blithely ignored. The

dear mandate of former Chief Judge Daugherty's orders, which are precedent

in the Western District and found at United States v. Penix, 516 30 F. Supp.

248, 255 (W.D. Okla. 1981) were ignored.

--------------------------------------

During the period of time that motions were pending for recusal of Judge

Alley, Judge Alley refused to entertain or rule on any discovery requests by

the Defendant. Thus, the government had an almost 4-1/2 month period after

the return of the Indictment on August 10, 1995, in which it ignored

existing judicial rules and took advantage of Judge Alley's statesmanlike

decision not to rule on matters before him while motions for his recusal

were pending. The government provided a microscopic amount of discovery

consisting primarily of "statements of the Defendant" as required by the

Federal Rules and access to some physical evidence.

In early January 1996, the government furnished Defendant's counsel all of

the 302's then in existence concerning the following witnesses: Michael and

Lori Fortier, Jeff Davis, Lea McGown, Vickie Beemer, Eldon Elliott, Tom

Kessenger, and one Oklahoma City witness, Daina Bradley. However, before

furnishing this information, the prosecution, in a letter to the defense

claimed that the prosecutors had personally reviewed the 302's and that

nothing in them was exculpatory. See D.E. 1923 (Exhibit "X'). This claim was

fantastic and incredible on its face and totally incorrect. Each of the

statements contained highly exculpatory Brady material and not just Giglio

material. The government then proposed an oral reciprocal discovery

agreement with the Defendant in which

witness statements would be exchanged except for those witness statements

taken by lawyers, even though FBI agents or defense investigators might be

present.

The government also failed to provide Grand Jury testimony until prodded by

the district court which directed the government to produce, first, the

Grand Jury testimony of Michael and Lori Fortier. Finally, the government

turned over Grand Jury testimony approximately four months before trial.

Massive litigation and hearings were required before the government turned

over all FBI documents (or at least it represents that it has turned all of

them over) relating to the Federal Bureau of Investigation Laboratory when

the government prosecutors knew that serious allegations were being made and

that an investigation was being conducted by the Inspector General which

later validated a significant number of the allegations with respect to the

handling, collection, analysis of evidence from the bomb site. The

government also delayed producing 302's, in some cases, more than a year

after the 302 had been typed. The government's claims thus that it has

produced unprecedented discovery are specious. It can be summarized as

follows: The government gave the Defendant 100% of that which is irrelevant

and withheld 95% of that which is relevant until, either by Court order or

the threat of judicial action, it grudgingly began to flow the information

to the Defendant, more than a year after the return of the Indictment. These

assertions by the Defendant are well documented in the trial record below.

See, e.g., D.E. 1310;1918.

V. THE "OTHERS UNKNOWN" TO THE GRAND JURY.

The theory of the prosecution in this case, not the Grand Jury's theory, is

that the two named Defendants constructed a simple device capable of

toppling a nine-story building at a public fishing lake and that one of them

transported this device over two hundred miles without blowing himself up.

That is the heart of the prosecution's case. Any evidence concerning the

participation of others, the complexity of the device, or foreign

involvement takes away the heart of the government's case and there is

therefore an institutional interest on the part of the government in keeping

such evidence shielded from the defense and the public. But unfortunately

for the government such evidence exists. One of the core allegations in the

Indictment is that Timothy McVeigh rented a Ryder truck at Elliott's Body

Shop in Junction City, Kansas. The evidence, however, negates McVeigh's

presence and suggests instead the presence of two other suspects.

A. Elliot's Body Shop.

The government's theory is that Timothy McVeigh rented a Ryder truck from

Elliott's Body Shop using the name "Robert Kling." However, three employees

of Elliott's Body Shop each informed the FBI that "Kling" was accompanied by

another man. Eldon Elliott met Robert Kling on Saturday, April 15, 1995, at

approximately 8:45 a.m. See D.E. 1081 Exhibit "D." On this day, Kling was by

himself, gave Elliott $281 to rent the truck, and told Elliott that he would

pick the truck up on Monday at about 4:00 p.m. When Kling came into Elliot's

on Monday there was, according to Elliott, a second individual with him. Id.

at 2. Elliott described the person with Kling as a white male, 5'7" to 5'8",

and wearing a white cap with blue stripes that headed front to back. He

described Kling as a white male, 5'10" to 5'11", 180 to 185 lbs., with a

medium build. Id.

Vicki Beemer, then the bookkeeper and counter clerk at Elliott's, told the

FBI on the day of the bombing that a contract to rent a truck was executed

on Monday, April 17, 1995 with Robert Kling. Id. (Exhibit "A"). She verified

that Kling had reserved the truck and prepaid the contract with cash. Beemer

told the FBI that she recalled a second person accompanying Kling but that

she had no specific recollection of that individual. She stated that while

she processed the contract another employee named Tom Kessenger was sitting

in the office watching. Id.

Kessenger initially told the FBI that two males came into Elliott's and

initiated a conversation with Vicki Beemer concerning a rental truck. See

D.E. 3240 at 7, 10 (Hearing on Motions to Suppress Eyewitness

Identification--Volume I, February 18, 1997). Kessenger stated that Robert

Kling was accompanied by the individual that later became known worldwide as

John Doe 2. Id. at 10. He described this person as wearing a black t-shirt,

jeans, and a ball cap colored Royal blue in the front and white in the back.

Id. at 11. He also stated that John Doe 2 had a tattoo on his upper left

arm. However, Kessinger has testified that a year and half after he first

saw John Doe 2 at Elliott's Body Shop, the government convinced him that he

had made a mistake and identified another person who rented a truck on April

18, 1995. Id. at 15-16. He described Kling as 5'10", weighing 175 to 185

lbs., green or brown eyes, and with a rough complexion or acne. Id. at 9;

D.E. 1458 (Exhibit "F)."

Although Elliott and Kessenger may have been describing the same person they

saw and knew as Robert Kling--it is clear that neither was describing

Timothy McVeigh. At the time that McVeigh was booked into the Noble County

Jail on April 21, 1995, he weighed 160 lbs., stood 6'2", his eyes were blue,

and his complexion was clear. See D.E. 1457 at 6.

In addition, the government and defense both have, and it has been

referenced in open court proceedings, a video tape of the accused at

McDonald's on I-70 in Junction City, a mile and a third away from Elliott's

Body Shop. The accused is seen at McDonald's between 3:55 and 4:00 p.m.

wearing clothes completely different from those ascribed to Robert Kling.

The accused is supposed to have traveled the 1.3 miles on foot, in less than

20 minutes, and somehow or the other along the road, changed clothes.

B. Oklahoma City Eyewitness.

The government has announced that it will not call a single identification

witness from Oklahoma City. The government has declined to do so for a very

good reason--all of them undercut the government's theory of the case;

perhaps none more so than the dramatic story of a young woman who was

trapped in the rubble of the Murrah Building, had to have a leg amputated,

and lost her mother and two children in the bombing. Her sister was also

injured but survived. See D.E. 2191 (Exhibit "Y"). She was first interviewed

by the FBI on May 3, 1995, at the hospital and then again on May 21, 1995.

She was also interviewed by the Defendant and several reporters. Her story

is consistent in all accounts. She stated that she left her home in Oklahoma

City at approximately 7:15

a.m. on the morning of April 19, 1995, to go to the Social Security Office.

She went with her mother, two children, and her sister. Id.

She recalled standing in the lobby of the Social Security Office in the

Murrah Building near a large window facing Fifth Street when she looked out

the lobby window and saw a Ryder truck pull into a parking place in front of

the building between two cars. After the truck parked, she then observed an

individual exit the passenger side of the Ryder truck and start walking

away. She stated that she observed a side view of the person and described

him as an olive-skinned (he looked also like he was tanned), white male,

wearing a baseball cap with black, clean cut hair, with a slim build and

also wearing jeans and a jacket. She observed the man walking very fast,

heading west, toward Harvey

Street. Id.

The next thing she remembered was feeling what she described as electricity

running through her body and then falling into rocks. While she was in the

hospital convalescing from her injuries, the FBI showed her a sketch

consisting of frontal view of a man wearing a hat--John Doe 2. She told the

FBI that the unknown male that she saw looked similar to the man in the

sketch. D.E. 2191 (Exhibit "Y" at 2).

C. Jeff Davis.

The government contends that "Robert Kling," the same person who rented the

Ryder truck from Elliott's Body Shop and who is alleged to have been Timothy

McVeigh, placed an order for Chinese food at the Hunam Palace Restaurant in

Junction City, Kansas, on April 15, 1995. D.E. 2166 at 13. The telephone

call to the restaurant allegedly originated from room # 25 at the Dreamland

Motel which was the room allegedly occupied by a guest who claimed to be

Timothy James McVeigh.

The restaurtant [sic] dispatched a delivery driver, Jeff Davis, to deliver

the order to room # 25 at the Dreamland Motel. Davis has been interviewed

several times by the FBI and has consistently maintained that the person he

delivered the food to was not Timothy McVeigh. See D.E. 2482 at 10, Exhibit

"P." Davis has described the person to whom he delivered the food order as

having hair that was "unkept." Timothy McVeigh, a decorated Gulf War

veteran, keeps his hair short and neat. Davis recalled that the person at

the Dreamland had a very slight overbite. Timothy McVeigh does not have an

overbite. Davis recalled that the person at the Dreamland had a regional

accent, possibly from Oklahoma, Kansas or Missouri. Timothy McVeigh was born

and raised in New York. Davis has stated to the FBI point blank that the

person he saw and heard at the Dreamland Motel four days before the bombing

of the Murrah Building was not Timothy McVeigh. In addition, although the

government contends that Timothy McVeigh occupied room # 25 at the Dreamland

Motel, his fingerprints were not found in the room. D.E. 2482 (Exhibit "GG").

In addition, there is evidence that a Ryder truck was seen at the Dreamland

Motel-only it was seen on Easter Sunday, April 16, 1995, by at least four

witnesses, Eric and Lea McGown, David King, and King's mother--one day prior

to Monday, April 17, 1995, the date the government alleges that Timothy

McVeigh and John Doe 2, using the name "Robert Kling," rented a Ryder truck

from Elliott's Body Shop. D.E. 2191 at 36-37. The date is indelible in the

memory of Lea McGown, the manager of the Dreamland Motel, because she leaves

her hotel only twice a year--at Christmas and Easter. April 16, 1995 was

Easter Sunday. Id. None of the individuals have been interviewed by the

Defendant, but several have been interviewed by the media and their

statements are a matter of public record.

D. Frederick Schlender.

The government alleges that Terry Nichols and Timothy McVeigh purchased two

tons of ammonium nitrate fertilizer from a farm cooperative in McPherson,

Kansas. See Indictment at 3, 4. The government's theory is that the 4,000

lbs. of ammonium nitrate purchased at the McPherson Co-Op was used as a

component of the bomb that destroyed the Murrah Building. See D.E. 2166 at 9

(Hersely Grand Jury at 45). Two separate purchases are alleged--one on

September 30, 1994 and another on October 18, 1994. See Indictment at 34.

Frederick Schlender was employed at the McPherson Co-Op during the time of

the purchases of the ammonium nitrate. See F. Schlender Grand Jury

Transcripts at 6-9. No employee at the Co-Op is able to describe the

individuals who made the September 30, 1994, purchase. In his interviews

with the FBI and in his testimony in open court, Schlender was able to

recall the two men who made the purchase on October 18, 1994, as well as the

vehicle used to transport the ammonuim [sic] nitrate. D.E. 3263 at 606 07.

He recalled that the purchase was made by two men driving a pickup truck

with a red trailer hitched on the back. Although he gave a description of

the pickup truck that was inconsistent with the truck owned at the time by

Terry Nichols, and neither Defendant owned or used a red trailer, he was

able to recall that the driver of the truck may have been Terry Nichols,

but stated unequivocally that neither the driver nor the passenger was

Timothy McVeigh. D.E. 3263 at 613, 659. The witness testified to the same

facts at an open court hearing.

The government claims to have a receipt with Tim McVeigh's fingerprints on

it. This receipt allegedly is for the purchase of ammonium nitrate. Leaving

aside the question that it is highly debated whether the bomb in fact was

made of ammonium nitrate, since clearly Mr. McVeigh was not present when the

ammonium nitrate was purchased, it is possible it was purchased by Terry

Nichols for innocent reasons (the government has evidence that Terry Nichols

packaged ammonium nitrate in small bags and sold them at gun shows) and that

Mr. McVeigh, an acknowledged friend of Mr. Nichols, may have in fact

innocently touched or handled the receipt.

E. Legal Significance of the Existence of "Others Unknown."

Even if, for purposes of this Petition, one assumes that Terry Nichols was

involved in the planning and/or commission of this crime, there are possibly

as many as four others still unknown. The identities of these persons may be

the difference between a conviction and an acquittal in this case, are

literally a matter of life and death, are not explained by the government,

and the defense believes that, in light of the massive federal resources

devoted to this case by the government, the government possesses information

which would shed light on the identities of these persons. But absent a

direct court order compelling the government and its agencies to produce the

information to the defense, the truth will never be known. The bureaucratic

instinct for self-preservation and the institutional pressures for a neat

and tidy conviction in this case ensure that, in the absence of coercion

from this Court, information vital to the defense will simply never see the

light of day.

[CONTINUED IN PART EIGHT]

PART EIGHT OF EIGHTEEN:

VI. PRIOR WARNING, ATF INFORMANTS, AND POSSIBLE "OTHERS UNKNOWN."

A. Elohim City.

Elohim City is a 240 acre compound near Muldrow, Oklahoma, consisting of

between 25 and 30 families. D.E. 2482 at 19. Elohim City is listed in the

publication Terrorist & Extremist Organizations In The United States at 109.

According to this publication, Elohim City preaches white supremacy,

polygamy and the overthrow of the government. Elohim City is also closely

aligned with the extremist The Covenant, the Sword and the Arm of the Lord

(CSA) and has been known to store weapons for that group. D.E. 2482 at 19.

The spiritual leader at Elohim City is the Reverend Robert Millar. Elohim

City had a close association with the Christian Identity Movement and The

Covenant, the Sword and the Arm of the Lord which had its own grievance

against the United States government. See D.E. 2191 at 33. The federal

government conducted a raid on the CSA on April 19, 1985--exactly ten years

to the day prior to the Oklahoma City bombing. See Id. at 33-34; D.E. 2840

(Pretrial Conference: Volume m--Sealed, January 1997 at 181). Members of the

CSA now reside at Elohim City.

One of the members of CSA turned on the organization and testified at the

trial of Richard Snell in Arkansas. Snell was on trial with others on

charges of sedition--that they conspired to destroy the Murrah Building in

Oklahoma City with a rocket launcher in the early 1980s. Id. Snell was

convicted on unrelated capital charges, sentenced to death in Arkansas, and

was executed on the very day of the bombing in Oklahoma City--April 19,

1995. Id. One of his last statments [sic] before he was executed was,

"Governor, look over your shoulder, justice is coming." D.E. 3410 at 16

(Pretrial Hearing--SEALED--Not Provided to Defendant Nichols, March 10,

1997). (Information in public press reports). His body is buried at Elohim City.

The government has alleged in the Indictment that the Defendants used a

calling card, referred to as the Bridges' Spotlight card, as a means to

prevent calls from being traced. See Indictment at 2. Phone records of the

Bridges' Spotlight debit card reveal that a call was made from a motel in

Kingman, Arizona, to Elohim City minutes before a call was made to a Ryder

Truck rental store in Arizona. According to residents at Elohim City, the

caller asked to speak to an individual named Andy Strassmeir. Around the

same time from the same motel and again with the Bridges' card, nine calls

were placed to a National Alliance Office in Arizona. The National Alliance

is an organization headed by William Pierce, author of The Turner

Diaries--the book characterized by the government as the "blue print" for

the Oklahoma City bombing. See D.E. 2166 at 16.

In addition to the alleged phone call to Andy Strassmeir at Elohim City from

someone allegedly using the Bridges' calling card, Strassmeir acknowledged

meeting Timothy McVeigh at a gun show in Tulsa, Oklahoma in 1993. D.E. 2331

(Exhibit "2" FBI 302 D-12993). Although Strassmeir stated that he was unsure

of the exact date of the meeting, he did recall that it took place sometime

between the start of the federal raid on the Branch Davidian compound in

Waco, Texas, February 28, 1993, and the conclusion of the standoff on April

19, 1993. Id. Strassmeir acknowledged that he attended gun shows with other

residents at Elohim City where he was living at the time. He stated that he

resided at Elohim City for approximately four years, leaving in August 1995.

Dennis Mahon, who now lives in Tulsa, Oklahoma, where Strassmeir says he met

Timothy McVeigh, ran "dial a racist" hotline and would often visit Elohim

City to engage in paramilitary training. D.E. 3123 (Exhibit "A"). As will be

detailed below, a confidential ATF informant has reported that Mahon and

Strassmeir discussed "targeting federal installations for destruction," such

as the Tulsa IRS Office, the Tulsa Federal Building, and the Oklahoma City

Federal Building. According to the ATF informant, Mahon and Strassmeir made

at least three trips to Oklahoma in November 1994, December 1994, and

February 1995. Id.

Elohim City also housed four of the six individuals arrested and charged

with a series of mid-western bank robberies which allegedly were made in the

name of "Aryan Revolutionary Army."[9]

--------------------------------------

FOOTNOTES:

[9] Among the residents of Elohim City, two have a striking physical

resemblance to Timothy James McVeigh and another has a strong physical

resemblance to the person the government describes as John Doe No. 2.

--------------------------------------

The four individuals arrested and charged in a series of mid-western bank

robberies described themselves as members of the Aryan Revolutionary Army.

The Grand Jury charged the gang of robbers were Richard Lee Guthrie, Jr.,

Kevin McCarthy, Scott A. Stedeford, Peter Langan, Mark Thomas and Michael

Brescia. D.E. 2191 at 17. Richard Lee Guthrie, Jr., committed suicide

(allegedly) in his jail cell in Ohio after entering a plea of guilty and

offering to cooperate with the federal government in the prosecution of the

remaining three. Two of the remaining six, Kevin McCarthy, Scott Stedeford,

have ties to Elohim City in that they lived there for several months as did

Brescia. Mark Thomas, the leader of the Posse Comitatus in Pennsylvania and

an Aryan Nations member, and who was close to two of the mid-west bank

robbers, was in Elohim City on the Thursday before the bomb attack on

Oklahoma City. D.E. 2191 at 34. Mark Thomas allegedly introduced the four of

them to each other in either Eastern Oklahoma or Western Arkansas in 1994. Id.

In the Winter of 1994, or the Spring of 1995, but in any event, before the

April 19, 1995, Oklahoma City bombing, federal officials were actively

planning a raid on Elohim City. If Elohim City was aware of the raid, then

Carol Howe's information that they would strike first and attack the federal

government was a real potential. Elohim City knew, or at least strongly

suspected, there would be a raid because Rev. Millar admitted his fears and

apprehensions to two local sheriffs. Elohim City also had located a series

of "spotters" who would advise them of approaching suspect vehicular

traffic. Millar also complained of an increase in aerial over-flights of

Elohim City and the community also monitored police scanners.

Thus, in the weeks before April 19, 1995, Elohim City (1) was populated by

several individuals who later were indicted for armed bank robbery involving

the use of bomb threats; (2) was populated by individuals who previously had

engaged in armed confrontation with the federal government, exactly ten

years before; (3) had avowed it would not be another Waco and would stake

first in a "Holy War"; (4) knew that the federal government was actively

planning a raid; (5) was populated by people committed to its belief of

Christian Identity, including neo-Nazis with training manuals on how to make

ammonium nitrate bombs.

Finally, there was one other element present at Elohim City, the significane

[sic] of which has not been fully appreciated. It may be a far reach to make

a connection between Elohim City and the Oklahoma City bombing to Iraq or

Iran, but the reach is not far at all. Present at Elohim City was a German

national with a commitment to neo-Nazism and an individual who already had

demonstrated a willingness to break the law by overstaying his visa, and by

assuming the identity of another and driving through Eastern Oklahoma with

books in his car on how to make a bomb. Also present at Elohim City was

Dennis Mahon who once described himself as "the master of all disguises."

Mahon is a world traveler with extensive trips to Germany and efforts to

enter Canada and the United Kingdom. Mahon was the facilitator. Where does

all this leave Tim McVeigh? Is he a part of this? The evidence suggests not

and certainly the defense will contend that he is not. Tim McVeigh is the