IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
TIMOTHY JAMES McVEIGH,
Case No. 96-_____
(Case No. 96-CR-68-M below)
HONORABLE RICHARD P. MATSCH,
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
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
STATEMENT OF MATERIAL FACTS
II. PHYSICAL AND POLITICAL MAGNITUDE OF THE DESTRUCTION OF
THE ALFRED P. MURRAH BUILDING
A. Immediate Effects of the Explosion
B. The Response of the Federal Government
1. The Government's Immediate Response to the Bombing
b. Evidence From Public Sources of government Use of Intelligence Networks With
Foreign Nations in the Investigation of the Alfred P. Murrah Building Bombing
C. CIA and NSA Investigation Protocol
2. Evidence of the International Scope of the Investigation and the
Organs of State Intelligence in
Several U.S. Domestic Bombing Cases Including the Alfred P. Murrah Building
3. The Investigative Focus Upon Foreign Terrorists
III. THE ARREST OF TIMOTHY McVEIGH
IV. THE GRAND JURY RETURNS THE INDICTMENT OF "OTHERS
V. THE "OTHERS UNKNOWN" TO THE GRAND JURY
A. Elliott's Body Shop
B. Oklahoma City Eyewitnesses
C. Jeff Davis
D. Frederick Schlender
E. Legal Significance of the Existence of "Others Unknown"
VI. PRIOR WARNING, ATF INFORMANTS, AND POSSIBLE "OTHERS
A. Elohim City
B. Dennis Mahon, Andreas Strassmeir and Carol Howe
1. Dennis Mahon
2. Andreas Strassmeir
3. Carol Howe and the Bureau of Alcohol, Tobacco and Firearms
VII. BEYOND ELOHIM CITY
A. Suspect I, Posse Comitatus, and Iraq
1. Posse Comitatus
B. Saudi Report Concerning Iraq
C. FBI Special Agent Kevin Foust
2. State Sponsorship Precedent
D. Israelis Present at the Bomb Site
E. A Subject of the Investigation in the Philippines
VIII. PROCEDURAL HISTORY OF DISCOVERY REQUESTS
IX. GOVERNMENT EVASION OF ITS DISCOVERY RESPONSIBILITIES
A. The Government's Restrictive Definition of Brady
B. Counsel for the Government are Powerless to Effect Disclosure of
Information from National Intelligence Agencies
A. Judge Matsch's Denial of Mr. McVeigh's Discovery Motions is Reviewable
for Writ of Mandamus
B. Federal Rule of Criminal Procedure 16 Entitles Mr. McVeigh to the
C. The District Court Abused its Discretion by Denying Mr. McVeigh's
for Brady Material
D. Standard for Guidance in Search
E. Because the Material Sought by Mr. McVeigh is Material Both to Guilt and
the District Court's Abuse of Discretion Jeopardizes Both Stages of Mr.
X. SPECIFIC RELIEF REQUESTED
CERTIFICATE OF HAND DELIVERY
TABLE OF AUTHORITIES
United States Supreme Court Cases
Arizona v. Youngblood, 488 U.S.51,58 (1988)
Bankers Life & Cas. Co. V. Holland, 346 U.S.379 (1953)
Brady v. Maryland, 373 U.S. 83(1963)
Eddings v. Oklahoma, 455 U.S. 104, 110-12(1982)
Giglio v. United States, 405 U.S. 150(1972)
Kyles v. Whitley, 514 U.S.419, 115 S. Ct. 1555, 1565-68, 131 L
Ed. 2d490 (1995).
115, 142, 143, 14S,
Roche v. Evaporated Milk Assn., 319 U.S.21(1943)
Snepp v. United States, 444 U.S.507, 512 (1980)
United States v. Agurs, 427 U.S.97, 110(1976)
United State v. Bagley, 473 U.S.667, 675(1985)
United States v. Richard M. Nixon, President of the United
States, 418 U.S. 683(1974)
Will v. United States, 389 U.S. 90, 95(1967)
Other Federal Cases
Chaney v. Brown, 730 F.2d1334, 1345 (10th Cir. 1984), cert. denied, 496 U.S.
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
Nichols v. Alley, 71 F.3d347(10th Cir. 1995)
Smith v. Secretary of New Mexico Department of Corrections, 50 F.3d801,
144, 145, 146
Texaco, Inc. v. Chandler, 354 F. 2d655(10th Cir. 1965), cert. denied, 383 U.S.
United States v. Clegg, 740 F.2d 16, 18 (9th Cir.1984)
United States ex rel Smith v. Fairman, 769 F.2d386, 391-93 (7th Cir. 1985)
United States v. Fernandez, 913 F.2d 148, 154 (4th Cir. 1990 )
United States v. George, 786 F. Sup. 11, 13(D.D.C> 1991)
United States v. LaRouche, 695 F. Supp. 1265, 1281 (D. Mass. 1988)
United States v. Mandel, 914 F. 2d 1215, 1219 (9th Cir. 1990)
United States v. McAnderson, 914 F. 2d934(7th Cu. 1990)
United States v. McVeigh, 923 F.Supp.1310,1313(D.Colo.1996)
United States v. Perdomo, 929 F.2d967-978(3d Cir.1991)
United States v. Penix, 516 F.Supp.248, 255 (W.D. Okla. 1981)
United States v. Poindexter, 727 F.Supp.1470(D.D.C.1989), rev.d on other
"rounds, 951 F.2d366(D.C. Cir. 1991)
United States v. Rahman, 870 F.Supp.47,51(S.D.N.Y.1994)
United States v. Rewald, 889 F.2d836 (9th Cir.1989)
United States v. Rezaq, 156 F.R.D.514,519(D.D.C.1994)
United States v. Ritter, 272 F.2d30,32(10th Cir.1959), cert. denied, 362
United States v. Trevino, 556 F.2d1265, 1272 (5th Cir.1977)
United States v. Yunis, 867 F.2d617,623(D.C.1989)
United States v. Yunis, 924 F.2d1086,1095(D.C.Cir.1991)
United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir.1995)
[CONTINUED IN PART TWO]
PART TWO OF EIGHTEEN:
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
TIMOTHY JAMES McVEIGH,
HONORABLE RICHARD P. MATSCH,
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.
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
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.
 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
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 masquerading as journalists, is uniquely in the hands of the
 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,
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.
 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 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
[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
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
1. The Government's Immediate Response to the Bombing.
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)
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
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.
 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
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
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
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.
 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
 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."
 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
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
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."
 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
classic example of the right man at the wrong place at the wrong time.
Eyewitnesses may place him at places, but the eyewitnesses' accounts are
variable and changing. What is missing is the physical evidence and other
evidence that ties him to the crime. Ideology is not proof of complicity or
involvement in terrorist attacks.
In addition, April 19 was the date of the execution of Richard Snell, soon
to be buried in Elohim City. The same Snell who had previously planned and
considered a rocket launched attack on the Murrah Building which would
destroy it. Thus, the persons responsible for the Murrah Building bombing
were alerted, ready, armed, committed, and poised to strike. And strike they
did. The government had knowledge from an informant plus knowledge it would
obtain from simple, ordinary analysis of the criminal intelligence available
to it. It conducted a somewhat superficial security search of the federal
property in downtown Oklahoma City and found nothing. When the bomb went
off, federal authorities were first stunned and then realized that they did
in fact apprehend the danger and had conducted a limited physical
inspection, but to admit such prior knowledge and such limited physical
search would be to face congressional inquiry and public outrage of such
ferocity that confidence in American government would be badly shaken. April
19, 1995, was December 7, 1941, the Pearl Harbor strike, and December 21.
1988. the bombing of Pan Am 103, all over again.
[CONTINUED IN PART NINE]
PART NINE OF EIGHTEEN:
B. Dennis Mahon. Andreas Strassmeir and Carol Howe.
1. Dennis Mahon.
Dennis Mahon is a virulent racist and avowed enemy of the U.S. government.
He is the No. 3 person in authority in the White Aryan Resistance movement
led by Tom Metzger. D.E. 2191 at 10. There are videotapes featuring Mahon,
in full Ku Klux Klan uniform, lighting a cross at a Klan recruiting trip in
Germany, and yet another videotape of Mahon firing a semi-automatic rifle
during paramilitary training for Klan members. Mahon conducted a "tour" in
Germany in order to recruit other right-wing extremists. The costs of the
trip were split between Mahon and his "German supporters." Mahon joked that
if he was fined the usual 1,000 Deutsche Marks (approximately $600) for
every time he gave the Nazi salute, he would owe 10,000,000 Marks,
explaining "I gave hundreds while I was there."
Mahon is headquartered in Tulsa, Oklahoma, and has referred to the Oklahoma
City bombing as a "fine thing" and stated further, "I hate the federal
government with a perfect hatred . . . I'm surprised that this [the bombing]
hasn't happened all over the country." He has further been quoted as saying
that "all methods are legitimate to save your nation." D.E. 2191 (Exhibit "M").
The Iraqi government has given Dennis Mahon thousands of dollars over the
past six years. Mahon has admitted to receiving money from Iraq
approximately once a month and stated that "it's coming from the same zip
code where the Iraqi Embassy is, but they don't say it's from the Iraqi
Embassy." The money started arriving in 1991 after Mahon started holding
rallies protesting the Persian Gulf War. Mahon is a close friend of Andreas
Strassmeir, the ex-head of security at Elohim City and Mahon has lived at
During Operation Desert Storm, Mahon produced several videotapes which were
distributed to public access television stations suggesting that the United
States' policy in Iraq was wrong. A defense attorney has interviewed Mahon,
and the defense received, through an intermediary, a tape recording that
Mahon had made to be given to our client. The intermediary felt that the
delivery of such tape recording was improper and was concerned about its
implications and forwarded it to the defense. The defense did not know
whether the purpose of this tape recording was to encourage the Defendant to
"sacrifice" himself for the eventual "justice" of the cause or was a subtle
threat intended to remind the Defendant that members of his family were
 The defense has no information that Mr. McVeigh was ever present at
Elohim City or ever met Dennis Mahon.
When the defense learned that Mahon and his brother had telephoned Germany
with orders to kill Strassmeir, the FBI was immediately informed. Mahon's
taped message goes on to say that Mr. McVeigh is "innocent by reasons of
entrapment," but that notwithstanding being innocent, he should accept the
sacrifice in order that justice may prevail. Mahon is a frequent participant
in gun shows. Mahon has been banned from the United Kingdom and from Canada
and was characterized as an international terrorist. A majority of German
terrorists have been trained in Palestinian camps in Jordan, South Yemen,
Syria, Iraq, and Lebanon. D.E. 2191 at 11.
Nebraskan Gary Lauck who was arrested by German authorities for smuggling
terrorist manuals and Nazi propaganda to neo-Nazis in Germany, wrote a
20-page manifesto entitled, "Strategy, Propaganda and Organization." The
paper describes the integration of worldwide extremist groups into a tight
network and "military education with terrorist aims." Sources have informed
counsel that Lauck had frequent contacts with Islamic terrorist groups. He
was also an associate of Dennis Mahon.
In a book written by former German neo-Nazi Ingo Hasselback, which was
excerpted in the January 8, 1996, edition of New Yorker, he recalls how
Lauck offered connections to American neo-Nazi groups. He wrote, "Through
him I later became a pen pal of Tom Metzger, the leader of WAR, the White
Aryan Resistance, in southern California, as well as Dennis Mahon of the Ku
After Lauck's arrest by German authorities, German and American neo-Nazi
groups found new ways to smuggle material into Germany using Sweden. Dennis
Mahon helped to establish a chapter of his "White Aryan Resistance" group in
Stockholm, Sweden. The German BKA has confirmed to German ARD television
that this pipeline exists. Before Lauck's arrest, in March 1995, Denmark had
been used as the smuggling point.
Mahon confirmed to ARF television that he brought German neo-Nazis to this
country for training. The interview was videotaped.
In the days immediately preceding April 19, 1995, when Elohim City was
preparing for the execution and funeral of Richard Snell, members of that
community placed numerous telephone calls to Mr. Snell's family, the
Arkansas Bureau of Prisons, the local undertakers, and a series of phone
calls were interspersed to Dennis Mahon's residence.
The defense has also acquired information from unimpeachable sources that
Dennis Mahon made statements to the effect of, "If a person wanted to know
about the bombing, then they should talk with Andy Strassmeir because he
knows everything." These same sources inform the defense that Mahon admitted
to him that he met James Nichols, the brother of Defendant Terry Nichols, in
Michigan. Bob Miles' (a Michigan leader in the White Supremacist movement,
now deceased) farm was only 62 miles from James Nichols' farm.
2. Andreas Strassmeir.
Andreas Strassmeir is a German national whose father is a well regarded and
successful politician in the Christian Democrat Coalition who recently
retired as Secretary of State for West Germany, but whose grandfather was a
founding member of the German Nazi party. D.E. 3123 at 14. Strassmeir was in
this country illegally on an expired visa on April 19, 1995. Id. (Exhibits
"F" and "H"). Subsequently, when Strassmeir became the subject of intense
media and defense scrutiny, his attorney, Kirk Lyons, a well-known North
Carolina lawyer whose principal clients are members of the most violent and
extreme wing of American politics, openly boasted that he had "spirited"
Strassmeir out of the country through Texas, Mexico and France, telling his
supporters that it would
be "easier to defend Strassmeir from Germany than from inside a federal
detention facility." Id. at 14 (Exhibit "H").
Strassmeir, who was originally presented to the press as a starry-eyed
German interested in American military history has now been identified as
the Chief of Security at Elohim City, an active participant in a Klan rally
in Texas, and having overstayed his visa in this country, having traveled on
false identity papers (he was arrested in Oklahoma by State Highway
Patrolman Vernon Phillips using the identity of Peter Ward) and a suspect in
multiple investigations concerning weapons violations, including making
weapons fully automatic. Id.
When Strassmeir, who is trained in terrorist tactics, was arrested on
February 28, 1992, near Elohim City, he was not only carrying false identity
papers, but also statements from foreign bank accounts, and a copy of The
Terrorist Handbook. D.E. 2191 at 12. The Terrorist Handbook states that its
purpose is "to show the many techniques and methods used by those people in
this and other countries who employ terror as a means to political and
social goals.... [A]ny lunatic or social deviant could obtain this
information, and use it against anyone.... [The publisher] feels that it is
important that everyone has some idea of just how easy it is for a terrorist
to perform acts of terror; that is the reason for the existence of this
publication." The table of contents includes chapters on low-order
explosives; high-order explosives, including how to build bombs from
fertilizer and fuel oil; ignition devices; advanced uses for explosives;
delay devices and explosive containers, including plastic containers.
According to a May 19, 1995, newspaper article "witnesses allegedly
identified him [Strassmeir] at the end of April  as one of the number
of men seen in Junction City, Kansas, when McVeigh was also there during the
days leading up to the bombing." D.E. 2191 at 12. One of the witnesses said
she contacted the FBI as soon as she was shown a photograph of Strassmeir by
a U.S. news organization investigating the Oklahoma affair.
Ambrose Evans-Pritchard, the author of this article, and Andrew Gimson, a
reporter in the Telegraph's Berlin bureau interviewed Strassmeir a total of
five times. Over the course of these interviews, Strassmeir revealed the
A. Strassmeir was a former Lieutenant in Germany's elite Panzer Grenadiers,
similar to our Special Forces, and was trained in military intelligence.
B. He first moved to the United States in 1989 "because he was planning to
work on a special assignment for the U.S. Justice Department." According to
Strassmeir, "It never worked out."
C. A retired USAF Colonel, Vince Petruskie was helping Strassmeir at the DEA
and Treasury Department, but ultimately nothing came through. Interviews
with Petruskie by defense investigators confirm this.
D. Having failed to find a job in Washington, Strassmeir went to Texas where
he found work at a computer company, and where ". . . he seemingly drifted
into the subculture of the Klu [sic] Klux Klan, the Aryan Nations, and the
extreme fringes of the Christian right.... He established himself as Chief
of Security (at Elohim City) in weapon training, he said."
E. Strassmeir "also claimed that he copper bottomed information about the
bombing but seemed torn over how much he felt able to impart" to the Telegraph.
F. Strassmeir said, "The ATF had an informant inside this operation. They
had advanced warning and they bungled it." "What they should have done is
made an arrest while the bomb was still being made instead of waiting until
the moment for a publicity stunt."
Counsel for Defendant McVeigh personally interviewed Ambrose Evans-Pritchard
in Washington, D.C., and confirmed each of these points. Mr. Evans-Pritchard
represented to counsel that Strassmeir strongly suggested to him that there
was an informant at Elohim City and that he was the informant. However,
Strassmeir would not expressly admit to it. The government has denied
Andreas Strassmeir was an informant employed by the United States.
Mr. Evans-Pritchard informed the undersigned counsel that as part of his
investigation into Strassmeir's background, Evans-Pritchard interviewed a
member of the Texas Light Infantry during the time Strassmeir was in Texas.
Certain members of the Texas Light Infantry began to believe that Strassmeir
was an ATF informant. Members of the infantry placed a "tail" on Strassmeir
and followed him one night. Strassmeir went into a federal building in which
was housed a local ATF office. On the doors of this particular federal
building, there were combination locks and in order to gain entrance, the
person had to punch in the correct combination. Evans-Pritchard reported to
counsel that the members of the Texas Light Infantry reported that they
watched while Strassmeir punched in the proper code, unlocked the door and
went into the building. D.E. 2191 at 14.
Counsel has been informed by a reliable source that FBI Director Louis Freeh
had invited a subject to accompany him on a trip to Italy and Germany in
late 1993, shortly after Mr. Freeh became director of the FBI. The subject
did in fact accompany Mr. Freeh first to Italy and then to Germany. Counsel
was told that Mr. Freeh specifically invited the subject to be present when
Freeh met with German internal security officials and that he agreed on the
condition that he would not write anything about what he heard.
The subject was present in the meeting in Germany in November 1993 (he
thought it could have been October, but was more positive about November),
and that the German security officials specifically mentioned Andreas
Strassmeir and said that he was "nation hopping" back and forth between the
United States and Germany and that he had been associated with neo-Nazis in
the United States and that they were very concerned about their activities.
Director Freeh replied that the FBI was aware of Strassmeir, and was
"monitoring" his activities, but that "because of the First Amendment, there
isn't anything we can do."
When Strassmeir's potential link to this case was discovered, a reporter
interviewed Dennis Mahon about Mahon's friendship with Strassmeir. When
questioned whether or not Strassmeir could be an informant, Mahon became
visibly upset. As information was traded, Mahon became more convinced that
Strassmeir had been providing intelligence on them. Mahon immediately got in
touch with a Avery important" man in Germany and requested that he determine
if Strassmeir could be an agent for the German government. The reporter
heard them state to this individual that if Strassmeir had double-crossed
them, "[Matron] wanted Andreas shot in both kneecaps and a confession
elicited from him, then hold a 30-minute trial and then execute him." D.E.
2191 at 16. The FBI was immediately informed of the information when defense
counsel learned it.
Despite government denials to the Court that Strassmeir has never been the
subject of the investigation of this case, defense counsel has obtained
documents--generated by the government--which indicate that he most
assuredly was. One official document, dated January 11, 1996, from an
investigative assistant discussed Strassmeir and stated, "Subject is wanted
for questioning by FBI, Oklahoma City. Detain and notify [the FBI]," and
then giving the phone number, and "refer to FBI case number," and then
giving the Oklahoma City bombing case, and then concluding that "subject is
possibly armed and may be dangerous." D.E. 3410 (Pretrial
Hearing--Sealed--Not Provided to Defendant Nichols, March 10, 1997 at 18).
This document was generated months after the defense began requesting
information concerning Strassmeir and during the very time that the defense
was meeting with the District Court concerning Strassmeir. Id.
In addition, the defense has now learned, belatedly through discovery and
through Howe herself, that ATF informant Carol Howe was sent back to Elohim
City after the bombing in an attempt to learn additional information about
Strassmeir, Mahon and others. Also, through discovery, the defense has
learned of significant official communication between the United States
government and its representatives in Germany concerning additional
information on Strassmeir and that Strassmeir has been the subject of
interest to the Counterterrorism Division of the Diplomatic Protective
Service of the Department of State in a document which we can only describe
as specifically bearing the Oklahoma City bombing investigation case number
and photographs of Strassmeir. See attached Exhibit "A" and "B" (Under Seal).
To say, in light of these documents and others filed under seal and not
otherwise identified in this public filing, that Mr. Strassmeir was "never
the subject of the investigation" is simply untrue. Strassmeir remained a
suspect and subject of the Oklahoma City investigation as demonstrated by
the fact that (1) Carol Howe was sent back to Elohim City where Strassmeir
lives, (2) cable traffic between an agency of the federal government and its
representatives in Germany clearly identify official interest in Strassmeir,
(3) his picture and other information was circulated by the Department of
State with respect to the Oklahoma City bombing, and (4) in January 1996, he
was considered to be "armed and dangerous" and was to be detained for
investigation and interview by the FBI. For the government to represent to
the Court, as it did that Strassmeir had never been the subject of the
investigation is not consistent with the known facts and mislead both the
Court and the Defendant. See (Scheduling and Rule 17.1 Conference--Sealed,
January 29, 1997, at 60, 68). Strassmeir not only was a subject of the
investigation and a suspect of official interest on two continents, but that
interest lasted at least from the middle of April 1995 to January 1996.
[CONTINUED IN PART TEN]
PART TEN OF EIGHTEEN:
3. Carol Howe and the Bureau of Alchohol [sic], Tobacco and Firearms.
The defense investigation has accumulated a significant amount of
information aside from discovery which indicates that ATF informant Carol
Howe informed her agency handlers, the Bureau of Alcohol, Tobacco, and
Firearms, prior to April 19, 1995, that various residents of Elohim City
were planning an attack on Federal Buildings which included the Alfred P.
Murrah Federal Building in Oklahoma City. The defense believes that the
government received this information, and in fact followed up on it, in the
early morning hours of April 19, 1995. D.E. 3313 at 1.
Previous representations to the Court by government counsel that Mr.
Strassmeir "was never a subject of the investigation" are inaccurate and
misleading at worse and economical with the truth at best as outlined above.
 See Scheduling and Rule 17.1 Conference--Sealed, January 29, 1997, at
The government in fact conducted an investigation of Mr. Strassmeir and Mr.
Mahon in the days immediately following the Oklahoma City bombing, and then
failed to follow through on the investigation, not because it was
unproductive, but because to pursue the investigation would in effect lead
back to the government's knowledge of prior warning. Defense counsel is of
the opinion that the government has engaged in a willful and knowing coverup
of information supplied to it by its informant.
As a threshold matter, counsel for Mr. McVeigh have requested, in writing,
that the government provide information concerning Dennis Mahon and Andreas
Strassmeir since February 15, 1996. See D.E. 1923 Exhibit "N" (letter to
Beth Wilkinson requesting specific information concerning various
individuals, but specifically naming Dennis Mahon and Andreas Strassmeir).
On March 8, 1996, Mr. McVeigh filed a discovery motion, seeking specifically
intelligence information from the federal government and specifically
mentioning Dennis Mahon and Andreas Strassmeir. See D.E. 1079 at 7 18, 19.
Dissatisfied with the government's responses, counsel filed a Motion to
Compel Production of Discovery Material on August 27, 1996, again,
specifically referencing Dennis Mahon and Andreas Strassmeir. See D.E. 1921
On October 10, 1996, counsel for Mr. McVeigh amended the Motion to Compel
Production of Discovery Material, reiterating specific requests for
information concerning Dennis Mahon and Andreas Strassmeir. See D.E. 2265 at
34. Most recently, counsel addressed outstanding discovery requests in a
Supplemental Motion to Compel the Production of Discovery Information,
reiterating the previous specific requests for information concerning Dennis
Mahon and Andreas Strassmeir. See D.E. 2768 at 6-7.
In a nearly one-foot-thick pleading filed October 18, 1996, the government
responded to McVeigh's Motion to Compel the Production of Classified
Information, specifically including information the government possessed
concerning Dennis Mahon and Andreas Strassmeir. See D.E. 2331. Absent from
that pleading, and also from the information responsive to defense requests
for information concerning Dennis Mahon and Andreas Strassmeir, was Insert
No. E-427, a report of interview by the AFT, which concerned a confidential
ATF source named "Carol." See D.E. 3313 (Exhibit "D"). Counsel for Mr.
McVeigh has now learned that "Carol" is actually Carol Howe, an ATF
informant at Elohim City, who had an intimate relationship with Dennis
Mahon, who knew Andreas Strassmeir, and whom ATF Agent Angela Finley
interviewed on April 21, 1995--two days after the bombing.
This particular Insert was brought to our attention by government counsel
during the in-chambers conference of January 29, 1997. See Reporter's
Transcription (Scheduling and Rule 17.1 Conference-Sealed) at 65, no docket
number assigned [hereinafter "Tr. _"]). Government counsel indicated to the
district court that this Insert had been disclosed to the defense on January
23, 1996, but candidly admitted that the government did not list this Insert
in its prior submissions to the district court because the government could
not find it through a computer search. Id. at 66. The Defendant does not
credit this explanation, coming as it does after so many false, misleading
representations from a former intelligence officer now on the prosecution
team. The defense was unable to locate this "non-pertinent" Insert using a
computer because all major search terms contained in the Insert were
misspelled. Elohim City was misspelled or misidentified, as was Mahon,
Strassmeir, the Rev. Robert Millar, and, in addition, Carol Howe was not
identified in the Insert at all. Agent Finley's source was identified as a
"confidential source" named "Carol"--no last name given. Thus, it is not
even clear from the Insert that "Carol" was the confidential source's real
name.[l2] Elohim City was spelled "Elohm [sic] City," Dennis Mahon was
spelled "Dennis Mehaun," Reverend Robert Millar was spelled "Bob Lamar'" and
Andy Strassmeir was spelled "Andy Strasmeyer."
 Defense counsel is very suspicious of the multiple misspellings in this
FBI Insert. The Insert was generated as a result of an interview of Carol
Howe in Oklahoma City on April 21, 1995 conducted by Special Agent of the
FBI, James R. Blanchard, II, and Agent of the ATF, Angela Finley. It is
difficult to conceive how Agent Finley could participate in an interview
which would lead to the drafting of a memorandum in which every material
name (Matron, Strassmeir, Millar, and Elohim City) would be misspelled
because, according to Ms. Howe, Agent Finley was her "case handler" and
specifically knew that Howe's assignment was to infiltrate Elohim City and
become acquainted with Strassmeir, Mahon, Millar and others. If the Insert
was prepared without it being reviewed by the person who also participated
in the interview, another law enforcement officer, the process was
incredibly sloppy and unprofessional. If she did review the Insert, the more
likely scenario, she would instantly have known that all of the names were
misspelled. Defense counsel believes they purposefully were misspelled. It
is difficult to imagine how a Special Agent of the FBI can misspell "Matron"
The fact that prosecutors themselves could not find the insert is not
surprising. There may have been a deliberate effort to deceive them and keep
from them information, which, in their professional responsibilities, they
would know had been turned over to the defense. This was the danger of the
so-called "open file" discovery. Everything was given to the defense, the
government argued, so thus if anything turned up which embarrassed the
government's case, it could always claim it had been "furnished" to the
defense (as indeed government counsel often did), but if it is furnished
amidst thousands and tens of thousands of sheets of paper so that it cannot
even be pulled up on a computer search, then the production is meaningless.
The names of Strassmeir and Mahon are hardly strangers to the discovery
disputes or to the government. Moreover, it emphasizes the need for court
intervention because not even the prosecution can protect itself against
efforts of either the FBI or the ATF to obscure and hide information by
According to government counsel and interviews with other parties, Carol
Howe contacted Agent Finley, her ATF "handler" (see Tr. at 67) and informed
the ATF that she had been at the Elohim City compound and may have seen
"Unsub 1" and "Unsub 2". D.E. 3123 (Exhibit "A" at 1). Carol Howe informed
Agent Finley on April 21, 1995, that she learned about Elohim City when she
called a racist hotline in May, 1994 and met the hotline operator/owner
Dennis Mahon who would visit Elohim City to engage in paramilitary training.
She also told Agent Finley that the security officer at Elohim City was Andy
Strassmeir, whom she described as an illegal alien from Germany and a former
West German infantry officer. Id.
Although Strassmeir has a German accent, he speaks English fluently, and
according to Ms. Howe, Strassmeir talked frequently about direct action
against the U.S. government, he trained in weaponry, and he discussed
assassinations, bombings and mass shootings. She also described the
residents at Elohim City as ultra-militant white separatists where required
reading includes Mien Kampf and The Turner Diaries.
Mahon discussed with Carol Howe "targeting federal installations for
destruction through bombings, such as the IRS Building, the Tulsa Federal
Building, and the Oklahoma City Federal Building." Id. (Exhibit "A" at 2).
In fact, Mahon not only discussed the destruction of the federal building in
Oklahoma City by bombing, according to Ms. Howe, Mahon and Strassmeir took
at least three trips to Oklahoma City in November and December 1994 and
again in February, 1995--and Carol Howe accompanied them during the December
1994 trip. She has repeated these facts to several reporters.
Ms. Howe reported all of this information to the FBI the day after the
bombing, and yet government counsel still insists that Andy Strassmeir was
"never a subject of the investigation" (see Tr. at 68), but curiously does
not make the same statement concerning Dennis Mahon.
 The Bureau of Alcohol, Tobacco, and Firearms was aware of this
information prior to April 19, 1995. Carol Howe has flatly stated the
information was provided to the ATF by her and she is satisfied she gave
them enough information to alert them to a possible threat. After her FBI
interview on April 21, 1995, Howe was reemployed as an ATF informant and
sent back to Elohim City.
But the one thing that is clear is that Carol Howe was an ATF informant
feeding the ATF information concerning Elohim City, Dennis Mahon and Andreas
Strassmeir both before and after the bombing of the Murrah Building.
Ms. Howe was the one-time girlfriend of a person named James Viefhaus.
Viefhaus has been indicted by a Federal Grand Jury in Tulsa, Oklahoma for
threatening to destroy buildings by means of an explosive in 15 cities
across the United States, as well as knowingly possessing an unregistered
destructive device. D.E. 3123 (Exhibit "B"). The Viefhaus case has received
considerable media coverage in the Tulsa area. Id. (Exhibit "C").
Viefhaus was arrested December 13, 1996, after federal authorities connected
him to a recorded message, traced to his residence in Tulsa, which
reportedly stated that the bombing of 15 U.S. cities would begin December
15, 1996, unless action was taken against the federal government by "white
warriors" before that date. U.S. Magistrate Frank H. McCarthy "expressed
concern" about investigative reports that Viefhaus has compiled lists of
buildings to be bombed and that Viefhaus possessed pictures of at least two
buildings in Tulsa that house federal employees. Id.
FBI agents claimed that they found ammonium nitrate and other chemicals that
could be used in bombing-making in Viefhaus' home and that the search of
Viefhaus' home including written instructions for bomb-making and references
to the lengths of pipes, caps, screws and fuses, as well as black powder,
accellerants, and various loaded firearms. Id. (Exhibit "C" at 3). In
addition to this information, the search of his house also uncovered a
how-to book about constructing homemade weapons as well as a photograph of
Viefhaus and his "housemate" holding weapons and wearing swastikas on their
clothing. The message that the federal agents have connected to Viefhaus is
believed to be affiliated with the National Socialist Alliance of Oklahoma,
and the speaker on the tape had reportedly endorsed the bombing of the
Murrah building in Oklahoma City.
Carol Howe is the person described as Viefhaus' "housemate" and is the
person in the picture with Viefhaus where the both of them are wearing
swastikas on their clothing. For his part, Mahon has stated to the press
that he does not believe that Howe and Viefhaus are guilty of anything, that
he knows these two persons, and "they gave me their word that they were
above ground and totally legal. They stand up for White Aryan beliefs." Id.
(Exhibit "C" at 9).
Mahon does indeed know both of these persons. Carol Howe had actually filed
a petition in open court in Tulsa, Oklahoma, for a protective order against
Dennis Mahon on August 23, 1994. Id. (Exhibit "D").
 The petition makes reference to the "White Aryan Resistance of which
Dennis is the head in Oklahoma." See D.E. 3313 (Exhibit "B").
The basis for the protective order was threatening phone calls in which
Mahon told Howe that he would "take steps to neutralize" her because he
perceived that she had turned on the movement, meaning the agenda of the
White Aryan Resistance of which Mahon is in charge in Oklahoma.
Counsel for Mr. McVeigh has contacted counsel for Mr. Viefhaus, Craig
Bryant, Assistant Federal Public Defender for the Northern and Eastern
Districts of Oklahoma, and Mr. Bryant has in turn spoken with Ms. Howe at
the federal courthouse in Tulsa. According to Mr. Bryant, Ms. Howe is the
girlfriend of James Viefhaus, and asked to speak with Mr. Bryant because of
his concern over the fact that she had not been indicted by the grand jury,
but James Viefhaus, her boyfriend, had been indicted. Mr. Bryant stated that
the prosecutor in the case, Ken Snoke, stated in open court that shortly
after James Viefhaus' arrest, the government felt Ms. Howe was equally
culpable--yet she was not indicted. Id. (Exhibit "E").
Ms. Howe told Mr. Bryant that the reason she was not indicted because she
served as a confidential informant for the ATF for several months in 1995,
and that the information she provided to the ATF concerned an investigation
of Dennis Mahon. Ms. Howe believes that the reason she was not indicted
along with her boyfriend was that the government does not want her prior
work as a confidential informant for the ATF to become public knowledge.
Carol Howe was subsequently indicted on March 11, 1997, in a superseding
Indictment in the United States District Court for the Northern District of
Oklahoma, No. 97-CR-05-C. The defense believes that an Indictment was
obtained against Carol Howe for the purposes of "leverage" against her in
order to keep her mouth shut about what she knows about the activities of
Mahon and Strassmeir. The information she possesses suggests strongly that
the ATF, the most hapless and beleaguered of the federal law enforcement
agencies, may have had notice that militant right wing radicals had targeted
the Alfred P. Murrah building for destruction and botched the interception
of the plan in their finest Waco tradition. The institutional repercussions
for ATF if Carol Howe is telling the truth could be the death knell of that
organization. Information corroborative of Carol Howe will be provided, if
at all, only through the most coercive judicial means.
When counsel filed a Motion to Compel Production of a variety of tangible
objects relating to statements made by Carol Howe, an ATF informant,
concerning the possibility of a prior warning being given to the government
of a possible terrorist attack on federal buildings in Oklahoma, including
the Alfred P. Murrah Federal Building (D.E. 3123), government counsel asked
defense counsel to hold the matter in abeyance pending review of documents
that would be submitted to defense counsel concerning Carol Howe, and the
district court then asked that counsel advise the court whether production
was sufficient or the motion was moot. Counsel thereafter advised the
district court that the issue was not moot and that the order to produce
should issue. D.E. 3313 at 2.
Information furnished to counsel by the government on Thursday, February 6,
1997, concerning the Carol Howe matter raises grave questions concerning the
credibility of representations made to the District Court, repeatedly, and
made to the public and survivors and next of kin of the victims of the
Alfred P. Murrah Federal Building explosion as to whether the government had
prior knowledge that the Murrah Building might be attacked.
 The government's denials are carefully circumscribed. In a November 7,
1996, filing (D.E. 2475), the government stated, "Stated simply, neither the
BATF nor any other federal agency had any advance knowledge of the deadly
bomb that McVeigh delivered to the Murrah Building .... Claims on this
point, which he (McVeigh) highlights among 'the most important of all his
claims (citation omitted) are unfounded because the prosecution is not
withholding anything that even remotely would support such an outrageous
charge'." (Emphasis supplied). Notice how carefully this statement is
worded. The government's denial is limited to advance knowledge of "the bomb
that McVeigh delivered." The government does not disclaim knowledge of a
prior warning from Carol Howe that the Murrah Building was one of three
targets that a group of Aryan Nation White Supremacists, members of a
terrorist organization at Elohim City, were planning to use in a first
strike against the government because Elohim City feared that it would be
the next "Waco" and should, in the words of Carol Howe, "strike first."
Moreover, the Court's attention is respectfully called to the fact that
after stating the "government's" denial, the proper noun is then shifted so
that it is "the prosecution" which is not withholding anything .... Whether
the prosecution is withholding it or not is immaterial. What is clear is
that the government is withholding it.
Although it might appear at first glance that this issue would not directly
be related to the issue of Mr. McVeigh's guilt, in fact, it is very much an
issue for the Court to consider.
To begin with, it has consistently been the government's belief and argument
that two, and only two, individuals were the "masterminds" (to use the
prosecution's statement of April 9, 1996, (D.E. 3313 at 6) at page 56) for
the Oklahoma City bombing. Carol Howe's statement indicates that there are
other "masterminds" including at a minimum Andreas Strassmeir, or Dennis
Mahon, and quite possibly Reverend Robert Millar. In addition, aside from
impacting upon Mr. McVeigh's guilt as a "lesser participant" in Count One,
it might be a direct defense for Counts Two through Eleven, especially when
the government does not have a single eyewitness to place Mr. McVeigh in
Oklahoma City that it is willing to sponsor at trial. Finally, the issue of
government prior knowledge is directly related to the appropriateness of
punishment and is a strong mitigating factor should Mr. McVeigh be convicted
of one or more of the substantive counts.
Repeatedly, the government has denied that it had any prior knowledge of a
suspected bombing attack on the Murrah Building on April 19, 1995. The
government has not qualified these denials by saying it had no credible
information. In this connection, the government's representations to the
district court are not dissimilar from the ones government counsel made
which have subsequently been amended. Government counsel advised the
district court at the April 9, 1996, session that the government had "no
information" of any possible foreign involvement when in fact the government
did have precisely such "information." Subsequently, this statement was
amended to mean "no credible information." D.E. 2330 at 6. The government
has simply denied, through the prosecution, the existence of any such
information of a prior warning.
In a public pleading filed on November 7, 1996 (D.E. 2475), the prosecution,
acting on behalf of the government, referred to the Defendant's request for
such information of a prior warning as "outrageous." (D.E. 2475 at 6).
Indeed, in the same pleading, the government went so far as to claim that
ATF agents had been injured in the explosion and that one of them had
actually suffered a free fall in an elevator in the Murrah Building. These
statements were made on the public record and highlighted considerably in
the press. In fact, the representation was false and untrue. Information
furnished to the defense by the prosecution from the government long before
November 7, 1996, indicates that the government's own investigation and
interviews with the elevator engineer show that the elevator simply did not
>From information furnished to the defense from its own investigation, from
national reporters for ABC and NBC television news, from Time magazine, and
from certain material furnished by the government, it is clear that the ATF
had an informant, Carol Howe, the daughter of a very prominent and
successful Tulsa, Oklahoma, couple who for a period of time possessed
beliefs in racial superiority of Caucasians. This belief was apparently
initially formed as a result of a confrontation Ms. Howe had as a young
woman with several young black males which required her, for her safety, to
jump off the roof of a building and resulted in fractures or bone breaks in
her ankles or legs. D.E. 3313 at 5.
After this incident Ms. Howe gravitated toward the Aryan Nation movement and
became a close personal associate of Dennis Mahon, the former Imperial
Wizard of the Ku Klux Klan, an individual who has received money since 1990
from Iraq, who has traveled to Germany to recruit for the Ku Klux Klan, who
has been barred from the United Kingdom and Canada as an "international
terrorist" (according to Mr. Mahon's own statement), and who has made a
number of statements of the most extreme political nature about the
necessity and desirability of overthrowing the government of the United
States "by any means." D.E. 3313 at 5. In addition, Mr. Mahon is a former
leader in the White Aryan Resistance, sometimes identified as No. 3 in its
leadership, and apparently was a member of the Order.
Although it was not quite clear to counsel when Ms. Howe became an informant
for the ATF, she has indicated that her relationship with Mr. Mahon became
troublesome, she sought a protective order against him (D.E. 3313 (Exhibit
"B"), and may have at the same time been recruited as an informant by the
ATF and paid approximately $120 a week.
The government has since verified that Ms. Howe became a registered
informant for the Bureau of Alcohol, Tobacco and Firearms (ATF) in August,
1994, and continued her work on a regular basis until she was, according to
the government, terminated on March 27, 1995. D.E. 3360 at 34. At that time,
the ATF agent requested she be terminated as an informant because it was
concerned about her state of emotional distress and her "loyalty" to the
ATF. But even this representation by government counsel was simply not true.
Government counsel admitted on March 10, 1997--after stating on January 9,
1997, that Carol Howe had ceased being an informant in March 1995--that Ms.
Howe, although removed as an ATF informant on March 27, contacted the ATF on
April 20, 1995, concerning her knowledge of the Oklahoma City bombing, ATF
requested permission to reactivate her as an informant, and she was sent
back to Elohim City to follow up the information she provided. D.E. 3410
(Pretrial Hearing--Sealed--Not Provided to Defendant Nichols at 32).
(Information here only summarized--please see full sealed transcript).
On the morning of February 13, 1997, defense counsel was informed that the
FBI would deliver to his office, shortly after 1:30 that day, reports on Ms.
Howe's activities prepared by Agent Angela Finley. At approximately 1:30
p.m., two agents arrived and appeared with what were represented to be
summary reports of Ms. Howe's activities for the ATF prepared by Agent
Finley, her case handler. Accompanying the file was a letter from government
counsel with one attachment which counsel was permitted to keep. A copy of
the letter from government counsel and the attachment are found at D.E. 3313
This delivery to counsel's office followed a 7:30 a.m. telephone call to
counsel that morning by one of the prosecutors who advised counsel that the
government had learned that Carol Howe was going to conduct a press
conference in Denver that afternoon. Counsel for Mr. McVeigh had no such
information and expressed to the prosecutor that he did not believe that
such a press conference was in the works because Ms. Howe was in Austin,
Texas, and her attorney, Mr. Smallwood, was in a first degree murder trial
in Tulsa, Oklahoma.
The undersigned counsel read the reports which were prepared and signed by
Angela Finley, and on some occasions by others in the ATF Office in Tulsa.
Incidently [sic], counsel noted that Ms. Finley had absolutely no difficulty
spelling correctly the proper nouns which constitute the names Dennis Mahon,
Andreas Strassmeir, Elohim City or Reverend Robert Millar, all of which,
were misspelled in the report provided to counsel. D.E. 3313 (Exhibit "D").
This report reflects the interview that Ms. Finley and FBI Special Agent
James R. Blanchard, II, had with Carol Howe on April 21, 1995.
While it may be claimed that Mr. Blanchard was "inexperienced" and Ms.
Finley did not actually see the finished memorandum, such statement or
claim, if made, credulity lacks. Ms. Finley was one of the two interviewing
agents, and undoubtedly was furnished a draft of the memorandum of interview
and could easily have corrected it. We believe that this information was
deliberately misspelled in order to disguise or hide it from a computer
search by the defense counsel. In fact, according to the representations of
government counsel to the district court on January 29, 1997 (Tr. at 66),
the prosecutors themselves could not find the information because of the
We do not credit these explanations. We note that when the district court
directed the government to respond to our request for information on Mr.
Strassmeir and Mr. Mahon, the government filed numerous 302's and other
material, but the Insert prepared by Blanchard-Finley (which arguably
constitutes the most significant information concerning Strassmeir and
Mahon) was not included in the material filed under seal with the district
court on October 18, 1996. See D.E. 2332. Considering the fact that the
identity of Strassmeir and Mahon and the Defendant's suspicions of them have
been the subject of numerous filings in this case, the failure of every
government prosecutor and every case agent who worked on this file to
remember the April 21 interview simply is not credible, but if it is
credible, it once again suggests that the Defendant is being penalized
either because of the government's willful or negligent withholding of
information. If government prosecutors knew of the April 21 memo and failed
to disclose it, after being directed to by the district court, the
withholding of it was willful. If, after the district court specifically
ordered a full response, and the government could not find it, then it was
negligent in not knowing its own material which concerns a subject not of a
casual interest, but of direct relationship to the case and the defense
The reports which counsel read are not the reports of Carol Howe, but
purport to represent monthly summaries prepared by Agent Finley of some of
the work of Carol Howe and some of the things that she reported. The last
report is February 1995, but there is no December 1994 report.
Although these limited number of documents do not specifically reflect the
precise information that Carol Howe furnished on April 21, they come very
dose to suggesting it. In her April 21, 1995, memorandum, Ms. Howe discussed
Andreas Strassmeir, Dennis Mahon and Elohim City at some length and
specifically mentioned that Dennis Mahon had talked to her about bombing
either an IRS building, the Federal Building in Tulsa, or the "Federal
Building" in Oklahoma City, presumably a reference to the Alfred P. Murrah
Building, although it could arguably have included the old Post Office
building and the United States Courthouse, both of which are in the "Federal
Complex" in downtown Oklahoma City. All of the allegations she has repeated
in subsequent interviews.
On the other hand, the Insert does not state that Ms. Howe did not furnish
this information prior to April 19. The Insert purports to reflect what Ms.
Howe was telling the FBI was her knowledge on April 21. Whether she told the
FBI about her previous contacts with the ATF is not immediately clear from
official documents, but presumably she did because she is identified as a
"confidential informant" for the ATF. Of course, at that moment in the
investigation, and with Ms. Finley present in the room, the FBI agent could
have failed to ask the question about prior notice by Ms. Howe, or if he
asked the question, simply not put down her answer on the self-justified
ground that he was not investigating whether the ATF was negligent, but
whether Strassmeir and Mahon had a role in the bombing.
However, in the reports which counsel read, Ms. Howe did tell the ATF,
according to Finley's summary, that she had been in and out of Elohim City
on a number of occasions, that Elohim City residents, including Mahon and
Strassmeir, were apparently engaged in serious violations of federal weapons
law, that there was a plan to place a bomb on the front door of a Tulsa
business by Mahon, and that Mahon himself, together with Strassmeir, had
talked about making bombs and the necessity to take action against the
federal government. According to these summary reports, Strassmeir
specifically told Howe that he was interested in bombing or blowing up
federal buildings, installations or property. Again we stress this
information was given to the government prior to April 19, 1995, because it
is in reports dated prior to that day. The accuracy of the information has
been confirmed in whole or part from three media sources.
In addition, Howe has described the Reverend Millar as preaching continually
the necessity of a "Holy War" against the federal government and Howe
described that the residents at Elohim City were very familiar with what had
happened at Waco, they admired David Koresh, and that copies of the Turner
Diaries were readily available. Summarized at D.E. 3313 at 10, but
repeated in other interviews.
 The government has repeatedly alleged that the Turner Diaries contained
the blue print for the bombing of the Murrah Building.
[CONTINUED IN PART ELEVEN]
PART ELEVEN OF EIGHTEEN:
In addition, Ms. Finley has described an underground bunker at Elohim City,
a weapons storage unit and other places. She advised the ATF that Strassmeir
was in the country illegally, that he thought it was time to take action,
and that she and her ATF agent had purchased various inert grenades in an
attempt to see if Dennis Mahon, Strassmeir, and although counsel does not
remember specifically, it appears also that she referenced Peter Ward, Mike
Brescia and others as people who would make the grenades "live." She
described Strassmeir as chief of security and military training, and said
that night-time military training exercises were held. She also described
that there was an influx of people in and out of Elohim City from what might
be described as other Fundamentalist Protestant denominations who mix a
Fundamentalist belief of religion with hatred of the government. D.E. 3313
All of the above Carol Howe stated before April 19, 1995. What she told the
ATF concerning Andreas Strassmeir is consistent with Oklahoma State Highway
Trooper Vern Phillips' arrest of Strassmeir carrying the false identity of
Peter Ward with information on how to build terrorist explosives found in
his automobile. This information was subsequently furnished to the defense
in discovery, see D.E. 3313 at 11, but is also in Phillips' arrest report
and confirmed in substantial part by the wrecker driver.
Counsel has had a number of telephone conversations with Ms. Howe's
attorney, Allen Smallwood, a well regarded member of the Tulsa bar. Counsel
had previously furnished Mr. Smallwood a copy of the Insert concerning his
client while advising him of the existence of the protective order and
asking him to comment on it. D.E. 3313 at 11.
Subsequently, counsel learned that before 20/20 ran its first program on
January 17, 1997, concerning possible prior knowledge by the government,
that members of the prosecution had telephoned ABC the Monday before the
program was to air on Friday and had two conversations with him, one of
which lasted an hour and the other which lasted approximately 47 minutes,
and that a prosecution member thereafter called ABC on several occasions
during the week in an attempt to persuade ABC not to air the program.
Later, another government counsel also contacted ABC. A representative of
ABC considered these efforts by the government to be news management and an
attempt to censor a legitimate news story. ABC claimed that on the day the
second program was to run on ABC Evening News to discuss Carol Howe, that
the prosecutors again telephoned ABC in an attempt to persuade ABC not to
run the program and that a senior public information officer from the ATF
also telephoned ABC. D.E. 3313 at 12.
ABC representatives had a conversation with a government press spokesman
("press spokesman") of the Department of Justice, and the press spokesman
confirmed for ABC that its information "is accurate." She stated to ABC that
she did not believe the November/December confidential informant reports
talked specifically about people blowing up buildings and she did indicate
to ABC that there was a limit to what she could say because of discovery and
ABC said that the press spokesman then said, "We have to admit now
Strassmeir has been investigated." ABC stated that the representative said
words to her to this effect: But you have denied over and over and over that
he was ever the subject of an investigation. ABC said the press spokesman
then said, words to this effect: "Well, we're undenying that now. He has
been investigated, but we could not involve him specifically in the bombing
of the building."
ABC then said the press spokesman said that in regard to Carol Howe, that
she had heard other people, while an informant, talking about threats and
those people "were investigated, but it was after the bombing" and she said,
the government "could not find anyone who bought fertilizer, could not find
anyone who rented a truck, so therefore we could not charge them with
anything." Then, according to ABC, the press spokesman said, "We're not sure
that information was credible." ABC then said, but did you or did you not
send her back out? The press spokesman said that information was correct,
she was an informant sent back. ABC then said: "Well, what in the hell does
that mean?" And the press spokesman said: She did go back out, but she was
unable to develop any evidence that these people had participated. ABC said
that the press spokesman then said, "Essentially your information is
correct." But the press spokesman said there wasn't anything that
specifically connected them to the bombing of the Murrah Building. D.E. 3313
ABC also said that the press spokesman attempted to belittle the credibility
of Carol Howe by stating that the government hears these types of statements
all the time from "White Supremacist compounds." ABC then said to her: Yeah,
but there's one difference here. The press spokesman asked what that was and
the producer said, "The God damn building blew up, that's what." The press
spokesman then said, "All right, but even if that's accurate, what's it all
add up to?" The producer said, "168 dead people, that's what." The press
spokesman then sought to terminate the conversation by saying she would give
an "official response" the next day.
After the 20/20 piece on prior warning aired on January 17, 1997, a
confidential source for the defense asked Ms. Howe, "Do you think you told
them [federal law enforcement, ATF and FBI] enough before the bombing to
have alerted them to have the bomb squads out and to have taken
precautions?" She replied, "Yes." She also told ABC News that she had
provided to the ATF a written report concerning her visit to Elohim City in
May, 1995. The defense has not received a copy of this report.
The defense has also received information from unimpeachable sources that
Ms. Howe made statements on December 24, 1996, which were tape recorded,
concerning Strassmeir. When Ms. Howe was asked about Strassmeir she
responded, he said he didn't want to settle down [and get married] with
anyone because he wanted to go blow up federal buildings. That's exactly
what he said." Ms. Howe also told the defense source that she had retrieved
the notes she had used to brief her ATF handler, Angela Finley, about the
detonator that Andy Strassmeir received from Sinn Fein, the Irish terrorist
The defense has also received information that ATF Agent Angela Finley may
have instructed Ms. Howe to violate ATF regulations concerning agent
dealings with confidential informants (CIs). According to defense sources
who have interviewed Ms. Howe, Agent Finley told Ms. Howe not to report
payments. This is a most serious violation of the absolute requirement that
CIs be emphatically told that they must report all payments as income.
Second, Agent Finley led Ms. Howe to believe that her debriefings were never
recorded. ATF regulations require that all CI debriefings must be recorded
and are very precise concerning the handling of the audio tapes of the
debriefings. The defense believes that the more likely scenario is that
Agent Finley was recording the debriefings and did not want Ms. Howe to know
In addition, counsel has also spoken with NBC News, which also interviewed
Ms. Howe and who confirms that she told NBC and one other person the same
information, that is, that she had informed the ATF prior to April 19, 1995,
of the activities of Mr. Mahon and Mr. Strassmeir and Elohim City residents
in (1) believing a Holy War was imminent, (2) that Elohim City should
strike first, (3) that Elohim City was the next Waco, (4) that Strassmeir
and Mahon wanted to bomb and blow up buildings, including Federal Buildings
and installations, and (5) among these buildings was the Federal Building in
A report from Time magazine (D.E. 3313, Exhibit "A") indicates that Ms. Howe
gave a tape-recorded statement to an individual in which she indicated that
she had made a prior warning to the government concerning Mahon and
Strassmeir and that Mahon had indicated he was considering three (3)
targets, an IRS building, the Federal Building in Oklahoma City and the
Federal Building in Tulsa.
Time magazine then states:
Sources in the federal government admit that Howe was
a paid ATF informant in Elohim City from August 1994
until March 1995, but they say her 38 surreptitious
tapes contain no evidence of a bombing conspiracy in
the works. Only when she was debriefed two days after
the bombing, government sources say, did she claim that
Mahon and Strassmeir had discussed bombing government
buildings. Agents familiar with the interview considered
her answers speculative; in any case, she offered no
D.E. 3313 at 14. Among the persons assisting with the report in this article
was Elaine Shannon, who is Time magazine's Department of Justice reporter.
Counsel has long ago complained to the district court that the government's
statements on material exculpatory information of other suspects and other
leads is highly qualified. The government has told the district court that
it had "no information" of a possible foreign involvement when it did. The
government has told the district court that "Andreas Strassmeir was never
the subject of the investigation," when he was. There is no other way to
describe the material found at D.E. 3313 (Exhibit "E") which consists of
State Department papers and other material from the State Department, other
than Andreas Strassmeir was a subject-suspect in the Oklahoma City bombing.
What government prosecutors have done is used the narrow definition of
"subject" contained in the Department of Justice Manual to mean that the
Grand Jury took no action or no interest in Mr. Strassmeir. That is not the
test of Brady. The district court undoubtedly understood her comments to
mean that Strassmeir was never the subject of official interest by the
government when he most assuredly was. Likewise, the government press
spokesman's statements that they couldn't find that anybody at Elohim City
had purchased fertilizer or that there wasn't any "specific" mention of the
Alfred P. Murrah Building is unavailing. The government is hiding behind
semantics such as "subject," "investigation," and "specifically." The truth
is that Mahon and Strassmeir and others are part of what is described as a
terrorist organization at Elohim City which believed that it would be the
next Waco, and should engage in a Holy War and strike the government of the
United States first.
A pristine example of government double-speak occurred very recently in a
newspaper article published in the Daily Oklahoman in Oklahoma City. See
attached Exhibit "C." The Oklahoman quoted Weldon Kennedy, the FBI's chief
investigator on this case, as saying that he "doesn't believe" that there
was a prior warning. He "doesn't believe" it happened. This is from the
government's chief investigator. See attached Exhibit "C." The pattern is
clear. The more the evidence slips through the cracks that the government
may have had an indication that a tragedy like Oklahoma City might occur,
the more the government relies upon specificity in defining the word "warning."
Soon the government's position will revert to the ridiculous and it will
only deny any knowledge that the Murrah building was specifically targeted
at 9:02 a.m. on April, 1995, to be destroyed by a bomb delviered [sic] in a
Ryder rental truck by Timothy McVeigh. That is not the standard for
discovery in federal courts; that is the federal government playing word
games in order to avoid what is potentially the single most embarrassing and
humiliating situation since the public found out that the FBI had an
informant inside the terrorist group that bombed the World Trade Center in
New York--an informant that actually helped make the bomb--but they bungled
the entire situation and did not prevent that tragedy.
Carol Howe told the ATF that they certainly understood the significance of
the date April 19 at Elohim City (if not for Waco, then the execution of
Richard Snell). The government has been hiding behind verbal gymnastics and
linguistic word games and failed to produce the information. The Time
magazine article is an outstanding example. Again, it states, Abut they
(sources in the federal government) say her 38 surreptitious tapes contain
no evidence of a bombing conspiracy in the works." Of course, her 38 tapes
may not, but counsel wants to read the raw reports, review the tapes
himself, and the videos, and asks this court to order material that the ATF
or FBI have concerning Elohim City, Andreas Strassmeir and Dennis Mahon to
be produced forthwith.
The defense has made a sufficient showing that there is a high probability,
certainly at least a high possibility, that Mahon and Strassmeir are part of
a conspiracy that planned to bomb Federal Buildings, and may have in fact
been part of the conspiracy to bomb the Murrah Building. We are not talking
about proof beyond a reasonable doubt, or sufficient proof to indict. We are
talking about the duty of the government to furnish information to the
defense to support what is clearly its stated defense, i.e. that Mr. McVeigh
is not guilty and that he is not a part of the conspiracy.
Andreas Strassmeir's roommate, Mike Brescia, and two other residents of
Elohim City have now been indicted by a Federal Grand Jury for 22 midwestern
bank robberies in which false FBI identification and threats of bombs were
involved. These robberies, according to the Indictment, were to finance the
Aryan Republican Army (which included as one of its members Dennis Mahon).
This Grand Jury Indictment certainly indicates, for purposes of Brady
discovery, that individuals residing at Elohim City at the same time as
Mahon and Strassmeir were fully capable of carrying out terrorist acts.
They are members of a terrorist organization; they associate with known
terrorists; at least one of them has been prohibited from entering a foreign
country because he is a terrorist; they have told an ATF informant that they
wish to blow up Federal Buildings; they had made no secret for the dislike
of the government of the United States; they are members of a violent,
right-wing, neo-Nazi, White Supremacist, Aryan Nation organization; and one
of them is in the pay of Iraq. Evidence now exists that Mahon and Strassmeir
may have engaged in federal weapons violations; may have planned a bombing
attempt on the IRS building, the Federal Building in Tulsa, or the Federal
Building in Oklahoma City prior to April 19, 1995; that Strassmeir and Mahon
traveled together to Oklahoma City on several occasions prior to April 19;
that they and other residents at Elohim City felt that Elohim City must
strike first and wage a Holy War.
Our patience is exhausted. The time for wrangling is past. We are no longer
convinced the documents drafted and furnished to us, after the fact, by
bureaucracies whose very existence and credibility is challenged, can be
relied upon. We ask for an order compelling production of all the raw notes
and all the reports and materials requested, not some sanitized version that
is presented to us in an attempt to persuade us to join with the government
in disputing a story which increasingly appears to be absolutely truthful.
Not only this court, but especially the defense, are interested in candor
from the prosecution. The defense cannot be required to accept a definition
of words as interpreted by the prosecution when apparently it has the only
copy of the dictionary.
This is a solemn criminal case, not Alice in Wonderland where definitions
mean only what "the Queen thinks" and what she thinks is not known to anyone
else. When the district court is told that an individual was not the
"subject of the investigation," the normal and widely understood meaning of
that word is that he was not of investigative interest, there is nothing
which connects him. It does not mean "nothing credible" or that no Grand
Jury subpoena was served.
A report by an informant, even after the bombing, that Strassmeir and Mahon
were considering bombing Federal Buildings, had discussed the subject, and
that one of them had clearly mentioned the Alfred P. Murrah Building, that
the two of them had made trips to Oklahoma City, that one of them was an
alien who had overstayed his visa, that this informant regularly passed
polygraph examinations, and was used by law enforcement to record telephone
conversations after the bombing, that she was sent back to Elohim City after
the bombing, coupled with a flurry of cables to our Embassy in Bonn
concerning Andreas Strassmeir, certainly makes him a "subject of the
investigation" and any reasonable person, congressional committee or
appellate court would so understand.
Common sense dictates no other conclusion. The repeated practice of the
government and prosecution in this case when the shoe gets binding is to
make a partial disclosure, assure the district court it understands its
Brady obligations, and hold its breath, hoping the court does not order
further disclosure, or will rely on the prosecution's "good faith." We think
on the eve of trial, that the district court has expressed its view of the
prosecutors' duty clearly enough and that they have told the court that they
understand it, but partial compliance, delayed disclosures, and discovery
information which cannot reasonably be found because of egregious
misspellings are inconsistent
with that duty. The order to produce should issue and this foolishness
Statements to the court by the prosecution that it cannot connect Strassmeir
and Mahon to the bombing are hardly surprising. They did not try very hard
to connect them because had they been connected, and Carol Howe's previous
warning disclosed, the resulting furor would have been unimaginable.
[CONTINUED IN PART TWELVE]
PART TWELVE OF EIGHTEEN:
VI. BEYOND ELOHIM CITY.
A. Suspect I. Posse Comitatus. and Iraq.
The defense believes that there is credible evidence that a conspiracy to
bomb federal property, very possibly the Murrah Building, is centered in
Elohim City and the persons described which are associated with Elohim City,
but that the technical expertise and possibly financial support came from a
foreign country, most likely Iraq, but possibly Iran or another state in the
Middle East. Dennis Mahon has admitted publicly to received money from Iraq,
approximately once a month. D.E. 2191 at 11. According to Mahon, the money
started arriving in 1991 after he began holding rallies protesting the
Persian Gulf War. Id.
Although the defense has no direct evidence linking Suspect I with Iraq,
there is evidence indicating an indirect connection between Suspect I and
Iraq through the militant Posse Comitatus group in Kansas. Suspect I made
two telephone calls to members of Posse Comitatus in Kansas: David Oliphant
and Buddy Snead (who also is married to a Filipina). Sources within the
Central Intelligence Agency have informed a defense source that two members
of the Posse Comitatus from Kansas traveled to New York City and made
contact with an Iraqi diplomat either immediately before the Persian Gulf
conflict with Iraq or immediately after. In addition, the defense has recent
information that someone made a telephone call from Suspect II residence to
a Member of the Order. D.E. 2482 at 22.
1. Posse Comitatus.
Posse Comitatus was originally formed by William Gale, who died in 1989 at
the age of 71 after having been convicted and sentenced to serve one year
for impersonating a federal law enforcement officer. D.E. 2482 at 22-23. Mr.
Gale died before his incarceration, apparently of natural causes. Id. Gale,
a retired Army colonel who led World War II guerrilla units in the
Philippines for General MacArthur, founded Posse Comitatus in 1969 with
Henry Beech. One of the principal leaders of Posse Comitatus is Jim
Wickstrom. Gordon Kahl was an activist in the Posse Comitatus who killed two
federal marshals in a shoot-out at his North Dakota farm and became a
fugitive. Kahl and Wickstrom were close friends. Id.
Kenneth S. Stern, in his book, A Force Upon the Plains (Simon & Schuster,
1995), wrote this of the Posse Comitatus in Kansas:
But the Posse did more than pass out literature.
Like many of today's militia groups, it practiced
for war. One of the leaders of the Christian Identity
(Elohim City is a branch of Christian Identity), the
Reverend William Potter Gale, joined with James
Wickstrom, leader of the Posse, to co-sponsor a
string of "counter insurgency seminars" in the early
1980s. In Kansas, the Attorney General's Office
reported that people were trained as "killer teams
and hand-to-hand combat techniques, the administration
of poisons, night combat patrol and murder by ambush."
At least one bomb making seminar was also held.
(Page 52) (Emphasis added.)
William Gale also authored a handbook on Guerilla warfare tactics for the
Posse Comitatus and stated that, "Yes, we are going to cleanse our land.
We're going to do it with a sword. And we're going to do it with violence."
James Corcoran, Bitter Harvest at 31 (Viking 1990). See D.E. 2482 at 23.
Three members of the Posse Comitatus met with the Iraqi Ambassador and one
is a resident of Kansas, living at Pratt, within an hour to two hours' drive
of Herington. James Wickstrom was in Kansas immediately before the bombing.
Of the three Posse members that met with Ambassador Mohammed Mashat of Iraq,
Ed Petruskie lives in Pratt, Kansas. Eugene Schroeder lives in Colorado and
the address of Alvin Jenkins is not known to the defense.
B. Saudi Report Concerning Iraq.
An official in the Saudi Arabian Intelligence Service reported on April
19, 1995, and possibly earlier, that Iraq had hired seven Pakistani
mercenaries, all veterans of the Afghanistan War, to bomb targets in the
United States, one of which was the Alfred P. Murrah Building. D.E. 2191 at
3 (Exhibit "A").
 Significant portions of this material are in the public record either
through media account or court proceedings.
A former Chief of Counterterrorism Operations for the Central Intelligence
Agency provided this information to the United States government and
described his source as "responsible for developing intelligence to help
prevent the Royal Family from becoming victims of a terrorist attack." Id.
Thus, this information is not only facially credible, it is highly credible.
The Director of Saudi Arabian Intelligence is the King's own son. There is
no reason for such a high ranking official in the Saudi Arabian intelligence
community to pass on such information if it is not true (or if there no
reasonable basis to believe it is not true). On the contrary, the
information has a strong indicia of reliability because of the extreme
embarrassment to Saudi Arabia if the information is in fact false or
unverifiable. It should be noted as well that the information provided to
the defense by the government indicates that there are possibly two sources
of this information. The FBI reports describe the source of the information
as a person who has provided accurate and reliable information in the past.
The information is credible and needs more investigation.
The information in these reports is not only facially credible, it is
specific. The Saudi Arabian official reported that the bombing of the Murrah
Building was sponsored by the Iraqi Special Services, who "contracted" the
mission to seven (7) former Afghani freedom fighters currently living in
Pakistan. The official also advised that the identity of the true sponsor of
the bombing was concealed from the Pakistanis and the Afghan mercenaries may
not have knowledge of Iraqi involvement or sponsorship. This is not unusual.
This is simply how things are done in the world of international terrorism,
intelligence, and covert operations. Despite repeated requests, the defense
provided the sum total of three pages of information concerning this aspect
of the case. See D.E. 2191 Exhibit "A."
The defense requested assistance from the United States State Department,
via letter to the Secretary of State, to assist in defense investigation and
travel to Saudi Arabia. Saudi Arabia has very stringent entry requirements
and the defense was unable to facilitate investigation there. The State
Department declined politely to assist the defense's travel to Saudi Arabia
and attempt to interview the Saudi Arabian official. However, the State
Department sent a list of law firms practicing in Saudi Arabia to the
defense; but of course the State Department had no difficulty in
facilitating entry into Saudi Arabia of American FBI agents traveling there
to investigate the death of Americans in Saudi Arabia.
C. FBI Special Agent Kevin Foust.
The report originally generated concerning the information provided by the
Saudi Arabian official came from a telephone call from a retired CIA
official to FBI Agent Kevin L. Foust on April 19, 1995--the very day of the
bombing. D.E. 2482 at 13. Agent Foust is no stranger to tracking down and
prosecuting international terrorists. In fact, according to information and
press reports in the public domain, Agent Foust appears to be one of the
FBI's leading investigators in charge of apprehending and prosecuting
terrorists. See D.E.
2482 Exhibit "D" (New York Times, Monday, October 7, 1996. The defense
believes the ex-CIA official called Foust and the CIA because he did credit
his informant and the informant's information, and that the government's
claim that ex-CIA official believed his informant was "untrustworthy" is
nothing more than ex-CIA official's efforts to protect his source. The
ex-CIA official it must be remembered is a long time intelligence operative.
Certainly, nothing in the documents furnished by the government report the
ex-CIA official as describing a Saudi official in that country's
intelligence services, charged with protecting the Saudi royal family, as
Agent Foust, along with Agent Robert F. Clifford, were instrumental in
apprehending Omar Mohammed Ali Rezaq, a member of the notorious Abu Nidal
terrorist group, who, along with two other terrorists, hijacked an Egyptian
airliner in 1985. Separating the passengers by nationality, Rezaq pulled
aside the Americans and the Israelis, summoned five to the aircraft's open
front doorway and then fired point blank into the back of their heads.
Although three persons survived this brutality, two women were killed, one
an Israeli and one an American. D.E. 2482 at 14.
This incident involved Egypt Air Flight 648 on November 23, 1985, which was
a Boeing 737 carrying 98 passengers and crew members. Rezaq and two other
men seized the plane shortly after takeoff on a flight from Athens to Cairo.
In an ensuing gun battle, an Egyptian Sky Marshal on the plane shot and
killed the hijacking leader, and the pilot landed the plane in Malta.
Eventually, Egyptian commandos set out an explosive charge under the
airplane and rushed the plane. In the ensuing confrontation, the blast
rocked the rear of the plane and a fireball blew forward through the cabin.
Fifty-seven more passengers and one hijacker died in the raid from smoke
inhalation, explosive wounds or gun shots. Rezaq was in fact shot in the
chest as he fled the plane. D.E. 2482 at 14.
Rezaq was prosecuted in Malta which, in 1992, was considering whether to
free him, possibly as early as 1996. It was then that Agent Foust was
enlisted to build a case for prosecuting Rezaq in the United States. When
the Maltese government released Rezaq, Agent Foust and others tracked him
down through the Sudan, by way of Ghana Nigeria and Ethiopia finally
catching up with him and apprehending him in Nigeria.
18 Agent Foust may also have been involved in the investigation of the
Achille Lauro case. Agent Foust is apparently knowledgeable concerning the
travel of terrorist Youssef Magied Molgi and has had contact with Italian
authorities concerning the case. See D.E. 2482 (Exhibit "E").
Clearly, the information concerning the possibility that Iraq enlisted
mercenaries to commit the bombing of the Murrah Building was relayed and
generated by people who should know. The phone call originally came to the
ex-CIA official, former Chief of Counterterrorism Operations for the Central
Intelligence Agency, who then notified Agent Foust. These men are dearly
familiar with such matters and their familiarity and background concerning
international terrorism should give weight to the information contained in
their reports and the fact that an official telephoned Foust and the CIA
immediately after the receiving the phone call from Saudi Arabia is strong
evidence he did not consider the Saudi General "untrustworthy".
2. State Sponsorship Precedent:
There is ample precedent supporting the assertion as alleged here that
terrorists sponsored by foreign states recruit American citizens for the
purpose of engaging in terrorists acts here in the United States. Such
countries include Iran and Libya.
Libyan efforts to recruit American citizens, particularly black Muslims, are
documented in the Federal Reporter in United States v McAnderson, 914 F.2d
934 (7th Cir. 1990). The McAnderson case involved the prosecution and
convictions of members of a Chicago street gang called the El Rukus,
convicted for conspiracy to commit terrorist acts throughout the United
States in exchange for payment from the Libyan government. Id. at 938. Upon
hearing that Louis Farrakhan had received $5 million from the Libyan
government, the leader of the El Rukns actively sought sponsorship from
Libya in exchange for an in kind amount of money. Members of the El Rukns
actually traveled to Libya to meet with military officials of the Libyan
government. Id. at 939.
The El Rukns sought to impress the Libyans and to demonstrate the depth of
their commitment by discussing specific terrorist acts, among them
destroying a government building, planting a bomb, blowing up an airplane,
and simply committing a wanton "killing here and a killing there" to get the
Libyans' attention. Eventually, the leader of the El Rukns decided that the
Libyans would only be impressed by the use of powerful explosives. Id. at
940. The El Rukns attempted to obtain hand-held rockets and rocket
launchers, LAW rockets, meaning "Light Anti-Tank Weapon" but were ultimately
intercepted by the FBI and
Similarly, Iran, a well-known sponsor of international terrorists, is
believed to have recruited Americans to commit acts of terrorism here in the
United States. ABC News' 20/20 program has investigated this aspect of
Iranian support for terrorism here in the United States and in the first
quarter of last year aired a report concerning David Belfield, a/k/a Daoud
Salahuddin. See D.E. 2482 at 16. According to the ABC News story, Salahuddin
was born in North Carolina, but grew up in Bayshore, Long Island. Although
both of his parents were university graduates, Salahuddin believed that
because of his father's race, African/American, his father could not find
employment other than menial jobs, e.g., a security guard, bartender,
bouncer, etc. Id. at 17.
Salahuddin began studies at Howard University in 1969 where he was attracted
to the Islamic movement on campus. He adopted Islam as his faith and soon
was leading student protests and looking for an alternative to the rules of
Tom Jarriel, the 20/20 correspondent reporting this story, stated that U.S.
authorities now believed that other young American males have been recruited
by the Iranians. The Iranians utilized colleges and prisons to recruit young
black men, indoctrinated them into the Islamic faith, and convinced them
that, if necessary, they must use any means necessary, including deadly
force, for the sake of their religious or spiritual leader. Jarriel located
Salahuddin through the National Security News Service in Washington, D.C.,
and also through a retired detective located in Washington, D.C. They
eventually met Salahuddin in Istanbul, Turkey and Jarriel claimed that he
was in possession of police intelligence reports indicating that Iran has
recruited in the United States Americans for "home grown terrorism".
In 1980 while Americans were being held hostage in Iran, a former Iranian
Embassy official was the leading political opponent of the Ayatollah Khomani
in Washington, D.C. The official was popular politically and socially in the
United States and was often seen on American television supporting the
Washington agenda and advocating Khomani's overthrow. He was assassinated by
Salahuddin in 1980 after Salahuddin paid off a postman with $500 to allow
him to allow him to use a postal service jeep and gain access to the
official's home. Under the guise of having a package that the official must
sign for, Salahuddin shot the official three times in the chest After the
killing Salahuddin then fled to Iran, the country that had provided the
money and the orders for the assassination, and thereafter traveled around
the Middle East visiting various international hot spots and associating
with other terrorists. Salahuddin assumed that the order to commit the
assassination was issued by the Revolutionary Council in Iran.
These two examples are simply what counsel has been able to find in the
public record. Counsel, of course, does not have access to intelligence
information of this nature but believes that such recruitment by foreign
states which sponsor terrorism is not unusual. That is the working defense
hypothesis in this case. The Iranians seem to target young idealistic black
males and indoctrinate them to the teaching of Islam in order to "turn" them
against the U.S. government. These people are targeted because their
ideological compass is preset against the federal government. The same can
be said for neo-Nazis and/or white supremacists. Although the white
supremacist community are diametrically opposed to that of black Muslims, it
is a well known fact that both share a common hatred for the federal government.
In addition, the United States government has been aware for many years that
intelligence agents of foreign nation-states operate in the United States in
furtherance of foreign interests against United States citizens. These
concerns were brought before Congress in a still classified top secret staff
report prepared for the Senate Foreign Relations Subcommittee on
International Operations. See D.E. 2482 (Exhibit "I"). Portions of this top
secret report were made public by the press and published by the Washington
Post in 1979. The report analyzes the thorny foreign relations problem
concerning illegal actions on the part of foreign intelligence agents
against citizens in the United States. The government seeks a balance
between enforcing domestic laws, even against foreign intelligence agents,
and foreign policy concerns and recriminations against U.S. intelligence
agents in other countries.
Although the major story at this time this report was made public in 1979
involved the Iranian security organization SAVAK, whose agents had been
trained in surveillance and other espionage techniques by the CIA, and
SAVAK's plan in early 1977 to assassinate Nasser Afshar, an Iranian-born
U.S. citizen who angered SAVAK by taking out ads in U.S. newspapers
denouncing the Shah of Iran, other foreign powers operate in the United
States as well. D.E. 2482 at 19.
The subcommittee report, according to the Washington Post, examined cases of
harassment and surveillance as well as suspected assassination plots against
United States citizens by the intelligence agencies of Chile, Iran, the
Philippines, the Republic of China (Taiwan), the former Soviet Union, and
Yugoslavia. To choose just one example, the Iranian SAVAK, at the peak its
influence under the Shah, had at least 13 full-time case officers running a
network of informers and infiltration covering 30,000 Iranian students on
United States college campuses. The head of the SAVAK agents in the United
States operated under the cover of an attache at the Iranian Mission to the
United Nations, with the FBI, CIA, and State Department fully aware of these
Thus, the presence of foreign intelligence operatives in the United States
is a fact of international foreign policy and for such operatives to carry
out the policies of their foreign sponsors is not unusual.
D. Israelis Present at the Bomb Site.
The defense has obtained a memorandum of an interview with a high ranking
Israeli security figure. See D.E. 2482 (Exhibit "J"). This memorandum
confirms the following:
1. The source, who aids the Prime Minister on matters of counterterrorism,
confirmed that Israel gave a general warning to the United States shortly
before the bombing.
2. The United States approached Israeli "for consultations" and advice
concerning the bombing.
3. Although Israel suggested that the bombing was not "Islamically
motivated", Israel conceded that the bombing could have been implemented
"borrowed methods" or could have been inspired by Islamic actions.
Israel in fact sent two experts, accompanied by the security officer of the
Israeli Embassy in Washington, D.C., to the bomb site.
5. Israeli authorities were clearly not pleased that information had leaked
of Israeli experts involvement in evaluating the bomb site.
6. The source, since the bombing, met with his American counter-part, Phil
Wilcox[l9], on a regular basis to "compare notes."
19 Wilcox is the U.S. State Department's coordinator for terrorism.
It is clear in the defense's view that the Israeli government sent its
experts to evaluate the bomb site with full knowledge of the United States
government. It is also clear in the defense's view that the one page report
submitted by the government is not the complete report of the two Israeli
Counsel sought and obtained permission from the District Court to travel to
Israel to investigate the presence of Israeli officials at the bomb site. In
order to avoid drawing attention to counsel's visit, counsel entered Israel
by a tourist bus over the Allenby Bridge (the King Hussain Bridge) on the
West Bank via Damascus and Amman and, once in Israel, contacted very senior
Israeli political figures in the late Prime Minister Rabin's government and
others who confirmed the presence of Israeli bomb experts at the Oklahoma
City bomb site. The defense has learned that two weeks after the bombing,
two Israeli officials toured the bomb site in collaboration with the ATF.
D.E. 2191 at 9. Their conclusion, as outlined in their report to the United
States government, was that the Oklahoma City bomb bore the indisputable
earmark of Middle Eastern terrorists. The two Israelis are Dorom
Bergerbest-Eliom and Yakov (or Yaskov) Yerushalmi.
 The government failed to produce a copy of this report, or even
acknowledge the presence of Israelis in Oklahoma City--despite defense
requests for this information. See D.E. 2768 at 54; D.E. 1921 (Exhibit "C"
at 16). Instead, a Fort Worth television station interviewed Moshe Tal and
he stated that he was personally acquainted with the two Israelis who toured
the bomb site, that they had been in Oklahoma City and he had forwarded a
draft of a report to Cristi O'Connor of Channel 11. Not until this happened
did the government furnish a copy of the report to the defense, even though
the ATF had escorted the two men. The copy forwarded to the defense does not
mention a Middle East connection to the bombing. The defense believes that
the government has not forwarded a true copy of the entire report.
Bergerbest-Eliom was, at the time, Chief of Security for the Israeli Embassy
in Washington, D.C. Yerushalmi was a civil engineer whom has been described
as a "consultant" to the Israeli government. The undersigned counsel has
confirmed that these two individuals were in fact sent by Israel and did in
fact tour the bomb site. The two Israelis prepared a report on their
observations. Counsel for Defendant McVeigh has not obtained a copy of this
report but is informed that the report suggests details of the explosive
device and that the bombing is a "signature" of Middle Eastern terrorists.
[CONTINUED IN PART THIRTEEN]
PART THIRTEEN OF EIGHTEEN:
E. A Subject of the Investigation in the Philippines.
A subject of the FBI and Grand Jury investigation ("Suspect I") has been
linked personally by a Filipino terrorist to convicted international
terrorists Ramzi Yousef and Abdul Hakim Murad as well as Philippine
 Ramzi Yousef was convicted in September in New York City of a
conspiracy to blow up 12 American jumbo jets in one day and he is currently
awaiting trial on an indictment charging him as the "mastermind" of the
World Trade Center bombing.
 Murad is a co-defendant of Yousef and told the FBI on April 19, 1995, a
Muslim group, the Liberation Army in the Philippines was responsible for the
bombing of the Alfred P. Murrah Federal Building.
The defense has learned of evidence suggesting a direct, personal link
between a suspect of the investigation and Ramzi Yousef, the "mastermind" of
the World Trade Center bombing according to a New York federal grand jury
indictment. D.E. 2482 at 1-2. The defense has recently learned, within the
last week, that three FBI agents are in the Philippines and have contacted
the Philippine National Police Intelligence. The FBI is investigating
Yousef's activities in the Philippines, including reports of terrorist
training in Batansas.
Defense counsel have interviewed in the Philippines a known terrorist in the
custody of the Philippine government. The purpose of the inquiry was to
determine his knowledge of foreign "mail-to-order bride" businesses and
any links between that group and criminal activity in the Philippines and/or
 These businesses introduce American males to Filipinas who are
ostensibly "tour guides" for the visiting foreigners.
During the course of this interview, (D.E. 2482, Exhibit "L"), the
individual relayed the following:
a. There were definite criminal connections to the mail-to-order bride
business in the Philippines;
b. He was able specifically to identify a photograph of an individual
engaged in smuggling activities;
c. He identified terrorist training as coming from the International Islamic
Academy at Peshawar Pakistan which has been funded in the past by Saudi
Arabia and other countries;
d. Targets of the Academy are "rich nations in Europe and Asia and the U.S.";
e. The contact between foreign terrorists and local Muslims was generally
initiated when local Muslim students came to know students from other
schools at various international academies;
f. He stated that Ramzi Yousef is also known as Abdul Basit and he
identified two other members of Ramzi Yousef's organization including Abdul
Hakim Murad, a codefendant of Ramzi Yousef, who told a security officer at
the detention center in New York that the Liberation Army was responsible
for the bombing in Oklahoma City (see D.E. 2482 Exhibit "M");
g. He specifically identified J.S., an individual that the defense has
learned knew or knows a subject of the investigation and has visited in the
subject's home in the Philippines. J.S. has been identified as an arms
dealer for the Moro Liberation Front, a terrorist organization in the
h. He was specifically interrogated as to what other bombing incidents after
New York were attributed to Muslim terrorists and he specifically cited the
bombing in Oklahoma City and the Saudi Arabia bombings;
I. He also told counsel he knows personally a subject of the investigation.
He met the subject and J.L sometime in 1992 or 1993 at the vicinity of Del
Monte labeling factory in Davao, Philippines. This was before the New York
City bombing. He (identified in the report as "No. 3") said that the subject
introduced himself as a "farmer." At that time, he said that his companions
were Abdul Basit (Ramzi Yousef), Wali Khan and Abdul Hakim Murad. They all
conferred with J.L and the subject." Yousef, Khan, and Murad were convicted
on September 5, 1996, in New York of conspiracy to blow up 12 U.S. jetliners
in a plot planned in the Philippines;
j. Because the person interviewed (No. 3) identified himself as knowing that
the subject of the investigation "introduced himself as a farmer," he was
asked to reduce his statement to writing and he did so. A copy of the
written statement is found at D.E. 2482 (Exhibit "N"). His written statement
identified three subjects discussed at the meeting where Ramzi Yousef and
the subject of the investigation among others were present. These subjects
were 1) bombing activities; 2) providing firearms and ammunition; and 3)
training in bomb making and handling;
k. He was also asked about the statement of Abdul Hakim Murad that the
Oklahoma bombing was the handy work of the Liberation Army. Mr. Murad was a
codefendant to Ramzi Yousef in the Philippine airline bombing case in
federal court in New York. (Ramzi Yousef was also charged by separate
indictment as the leader of the attack on the World Trade Center bombing
which involved a Ryder truck carrying a fertilizer bomb). Specifically, He
was asked "What was the identification of Liberation Army referred to by
Murad?" See D.E. 2482 (Exhibit "M"). He stated, according to the interview,
"It was the Palestine Liberation Army and/or the Islamic Jihad which Murad
was referring to. . . . This army is associated with Hamas and based in
Lebanon, he added." Id.
l. He also placed the meeting of the subject and J.L with Murad and Ramzi
Yousef in Davao and noted, "It was also the place where Muslims were taught
in bomb making." This statement tends to be corroborative of the
truthfulness of the Filipino terrorist because the defense has interviewed
two individuals who claimed that the subject asked them if they knew anyone
who made bombs, and one individual confirmed to a friend of his that the
subject had with him a book on making explosives. See D.E. 2482 (Exhibit "K"
at 10, 12);
m. There are a number of factors that indicate that the Filipino's statement
is truthful. First, he has no reason to lie as he is a cooperating witness
with the Philippine investigation, and there is sufficient documentation to
indicate that he was the co-founder and second-ranking member in Ramzi
Yousef's organization, Abu Sayyaf. See D.E. 2482 (Exhibits "S" and "M"). His
statement that Muslims were being trained in Pakistan at a charitable
organization through the international Islamic academy is consistent with
the intelligence information of the Saudi Arabian General that Iraq had
hired Pakistanis who might not know they were actually operating on behalf
of Iraq. The use of an intermediary, i.e. the International Islamic Academy,
and Islamic charity organizations would certainly disguise the role of Iraq.
See D.E. 2482 (Exhibit "U").
His statement that the United States is a target country is hardly
surprising. The dates that he claims to have seen the subject of the
investigation are consistent with the subject being in the Philippines (see
D.E. 2482 (Exhibit "V')), and his statement that the subject identified
himself as a "farmer" is likewise corroborative. Perhaps most important the
fact that he saw them near a place where Muslims make bombs is consistent
with statements by other witnesses who claim that the subject had a book on
bomb making with him and wanted to know how or where he could find someone
that knew how to make bombs. See D.E. 2482 at 25. In addition, the Filipino
identified correctly Yousef's real name as Abdul Basit. See D.E. 2482
Finally, the arrest of McVeigh and Nichols is not necessarily inconsistent
with this report. The district court has correctly summarized in the past
that the defense theory is that once McVeigh was arrested, the government
ceased pursuing an international connection because the arrest of McVeigh,
and later Nichols, would seem to preclude a foreign involvement. However,
material the defensne [sic] has submitted to the district court, indicates
that there is a relationship between neo-Nazis in this country and foreign
terrorist groups in Iraq and the Philippines. Moreover, the subject's
actions as articulated at D.E. 2482 (Exhibit "AA") are entirely consistent
with his seeking to find assistance in the Philippines on how to make a bomb.
The fact that Murad, while in custody, is a co-defendant and a close
associate of the alleged ringleader of the bombing on the World Trade Center
(and not incidently [sic] also the federal building in Manhattan) were a
Ryder truck was used to carry a fertilizer bomb is also highly relevant. The
materials also indicate that terrorist groups in the Philippines have been
trained in Pakistan, and that some of these same Pakistanis fought in
Afghanistan. See D.E. 2482 (Exhibit "X").
The revelations by the New York Times that the FBI was pulling out of the
investigation in Saudi Arabia because of lack of cooperation by the Saudi
government further tends to support this intelligence information. See D.E.
2482 (Exhibit "Y"); see also Exhibit "Z" (discussing the anti-American
climate in Saudi Arabia). The Saudis would be greatly embarrassed if it
should develop that either directly or indirectly they have been financing a
training area of terrorists in Pakistan, which may have led to deaths of
Americans, or they may simply fear that they will be upsetting Iran or Iraq
if the finger of suspicion of the investigation should point specifically to
those two governments. The important point is these reports from the
Philippines inferentially support the Saudi intelligence report.
The arrest warrant of Abraham Ahmad as a material witness makes reference to
three Middle Eastern men running from the Murrah building shortly after the
explosion. See D.E. 2482 (Exhibit "EE" at 1). Several eye witnesses,
including the next to last survivor pulled from the wreckage, have
identified an "olive complected" dark haired man (variously described as
Middle Eastern, Indian, Hawaiian) as being the driver and/or occupant of a
Ryder truck shortly before the explosion and seen outside the Murrah
Building. The FBI authorized an All Points Bulletin ("APB"), which was
broadcast on police radio, seeking information about a full-size brown
pickup truck occupied by Middle Eastern males. See D.E. 2406 (Exhibit "C").
The subject of the investigation was present in the Philippines in November,
1994 until January, 1995. During this same period of time, Ramzi Yousef was
also in the Philippines. See D.E. 2763 at 22. Yousef and two co-defendants,
Abdul Hakim Murad and Wali Khan Amin Shah, were convicted on September 5,
1996 in New York City with conspiring to blow up eleven (11) United States
jetliners. Yousef is generally regarded as the mastermind behind the World
Trade Center bombing and the government plans to try him for that crime. Id.
Vince Cannistraro, the former Chief of Counterterrorism for the CIA (D.E.
2406 (Exhibit "B")), authored an article which appeared in The Boston Globe
in April of 1995, suggesting the probability of foreign terrorist
involvement, particularly Iraq, in the Oklahoma City bombing, while
observing its similarity to the World Trade Center bombing. Cannistraro
wrote, "Yousef had carefully prepared his escape, leaving under another name
from New York the evening of the bombing. He abandoned his comrades to the
police. If the Oklahoma bombing follows the same pattern, the foreign
sponsors will have covered their trail carefully, leaving only the support
cells of local adherents to face the prosecutor." D.E. 2406 at 3.
Ramzi Yousef was a Pakistani terrorist based in the Philippines. D.E. 2763
at 15-16. The Philippines is also the base camp for the Abu Sayyaf Group
(ASG). Id. Abu Sayyaf consists of between 500 and 600 fighters and is funded
by radical Middle Eastern Muslims. D.E. 2191 at 21; see general) D.E. 2763.
ASG was formed in 1991 and is based on the Philippine island of Mindanao,
which is a largely Muslim region which has been for all intents and purposes
at war with the Philippines for regional autonomy. Abu Sayyaf has been
linked to an international terrorist cell which is alleged to have plotted
the assassination attempt on Pope John Paul II when he visited the
Philippines in January, 1995. Ramzi Yousef made contact with the Abu Sayyaf
Group in the Philippines through his "Afghan connections." Id.
It has been reported reliably by Jane's Intelligence Review, a highly
respected source for intelligence information, that "by all accounts,
[Yousef] had ambitious plans to intensify his own Jihad against the U.S.A."
In addition to the plot to assassinate the Pope, Yousef and his team,
together with Abu Sayyaf support, were planning to attack the U.S. Embassy
and other facilities throughout Asia. The bombing of Philippine Airlines
Flight 434 on December 11, 1994 was simply a "test run" to smuggle a bomb
through the Manila Airport. Id.
Abu Sayyaf's funding includes support from Muslim billionaires in the
Persian Gulf including Osama bin Laden. Id.; see also D.E. 2763 at 17. Arab
intelligence sources report that Osama bin Laden's funding of Islamic
terrorist groups is "considerable" and is conducted through several
companies he owns in Africa, Europe and the Arab world. During the Afghan
War, bin Laden was a "driving force" behind recruiting young Muslim zealots
to join the Mujhedeen and he operated out of the northwest frontier province
of Pakistan along the Afghanistan border. Bin Laden became a close associate
of Sheikh Omar Abdullah Rahman, the blind Egyptian cleric who has been tried
in New York and whom U.S. authorities believe is a kingpin in an
international Islamic terrorist network. Id.
In February, 1995, United States authority named bin Laden and his Saudi
brother-in-law, Mohammed Jamal Khalifa, among 172 unindicted co-conspirators
with the eleven (11) Muslims charged for the World Trade Center bombing and
the associated plot to blow up other New York landmarks. At the time Khalifa
was linked to the World Trade Center bombing, he was already in prison in
San Francisco because his visa was revoked on the grounds that he had failed
to disclose when he obtained it in Jiddah, Saudi Arabia and that he was
wanted in Jordan for a series of bombings carried out in Amman in 1993.
Incredibly, Khalifa's presence in California went unnoticed until Abu Sayyaf
attacked the Christian town of Ipil in April, 1995. Id. Philippine
intelligence documents indicate that Khalifa, who had at one time ran a
Muslim religious center in the Philippines, was linked to Islamic
organizations in a number of countries, including Iraq and Jordan. Khalifa
was deported to Jordan and was cleared of all charges. Id. at 22.
While the brother-in-law of one of the financier's of Abu Sayyaf was being
deported by the Americans after spending time in solitary confinement in a
prison in San Francisco, one of Ramzi Yousef's co-defendants, Abdullah Hakim
Murad, then on trial in New York City for conspiracy to blow up American
airliners, readily admitted to a prison guard that he was a member of the
Liberation Army, and that the Liberation Army was responsible for the
bombing of the Murrah Building in Oklahoma City. Id. at 22-23.
The prison guard had asked Hakim Murad what he thought about the bombing
when it was reported on the radio, and, according to a FBI 302, Murad
responded to the guard's question by stating that the Liberation Army was
responsible for the bombing and, a short time later, confirmed in writing
that the Liberation Army was responsible for the bombing of the Murrah
Building in Oklahoma City. Id.
The manager of the Great Western Inn at Grandview Plaza, Kansas, told the
FBI that he observed the composite sketches of John Doe #1 and #2 when they
were released, and stated that one of the sketches looked like a man who had
checked into the motel on Monday, April 17, 1995 or Tuesday, April 18, 1995,
the same time Tim McVeigh was staying at the Dreamland Motel. According to
Mistry, the man was driving a Ryder rental truck which he parked in front of
the motel and the man reminded Mistry of a "Moslem" and had a Middle Eastern
accent. Mistry advised the FBI that the composite sketch of John Doe #2
"looked just like the man he described as having checked into the Great
Western Inn on April 17, 1995 or April 18, 1995." D.E. 2191 at 23.
[CONTINUED IN PART FOURTEEN]
PART FOURTEEN OF EIGHTEEN:
VIII. PROCEDURAL HISTORY OF DISCOVERY REQUESTS.
Defendant McVeigh has compiled an indelible paper trail in attempting to
obtain information in the possession of the federal government, particularly
the intelligence agencies, which is relevant and material to his defense.
Counsel for Defendant McVeigh does not lightly come before this Court
seeking intervention in these matters; but there can be only so many
requests, so many demands, and so many pleadings filed requesting this
information before it becomes apparent to counsel that there is no effective
way, absent court intervention, to obtain the necessary materials to
construct a defense in this capital case.
So that the record is complete, and that the Court has confidence that the
present Motion is filed out of legitimate exasperation as the result of
being stonewalled for over a year since the return of the indictment,
counsel for Defendant McVeigh invites the Court to review the following
chart and accompanying materials, most of which may be found and perused in
the separately bound appendices at D.E. 1921, 1922 and 1923. Defense efforts
to obtain this material includes the following:
August 10, 1995
Defendants Timothy McVeigh and Terry Nichols were
indicted on one count of conspiracy to use a weapon of
mass destruction, one count of use of a weapon of mass
destruction, one count of destruction by explosives, and
eight counts of first degree murder.
Counsel for Defendant McVeigh engages in discovery
conversations and negotiations with counsel for the
government concerning the production of exculpatory
information. However, nothing is reduced to writing.
These negotiations occurred within a few weeks after the
return of the Indictment.
August 21, 1995
In a lengthy letter addressed to Joseph Hartzler, Special
Assistant United States Attorney, from defense counsel
for Mr. McVeigh, the defense pleaded the case with the
government for a change of venue and for "full, complete
discovery furnished to the defendant of all grand jury
transcripts, 302's, witness statements, plea agreements
and immunity deals, tangible evidence, tangible
documents, scientific reports to the defendant as quickly
as possible[.]" See D.E. 1921 (Vol. I Exhibit "D" at
November 2, 1995
Letter to Joseph H. Hartzler, Patrick Ryan and Larry
Mackey, addressing defense concerns over the
production of forensic evidence, documentary evidence
and witness statements. This letter pointed out that there
had been "zero production of exculpatory evidence" and
requested specifically exculpatory evidence and Rule 16
material. See D.E. 1921 (Vol. I Exhibit "E").
November 6, 1995
Defendant McVeigh's first written request for specific
Brady information in a letter addressed to Joseph Hartzler.
This request consisted of 60 paragraphs of specific
requests for categories of exculpatory information over 10
pages in a letter directed to the lead counsel for the
government prosecution team. The letter noted that the
request was made because the government had failed to
produce any exculpatory evidence to the defendant, even
though Mr. McVeigh was arrested more than 6 months
prior to the date of the letter, and indicted almost three
months prior to the date of the letter. The defense team
was finding out the possible existence of exculpatory
information from the media rather from the government. In
paragraph 3 on page 3. Defendant McVeigh requested
specifically any statements. Reports or memoranda tending
to indicate that the Murrah Building was a target of
terrorists which were generated prior to or
contemporaneous with the bombing on April 19. 1995.
Paragraph 18 on page 4 specifically requested material and
reports of investigations regarding the bombing of the
Murrah Building compiled by agencies other than the FBI
including the BATF, the Central Intelligence Agency, the
Army C.I.D., the National Security Agency, the Defense
Intelligence Agency, and the Drug Enforcement
Administration, the Department of Defense, etc. In
paragraph 47 on page 8. defense counsel for Mr. McVeigh
requested specifically any and all intelligence reports in the
possession of or generated by, any foreign government
which were material to the identity of the perpetrators of
the Murrah Building bombing. See D.E. 1921 (Vol. I
November 8, 1995
Letter from defense counsel to Joseph H. Hartzler setting
out specifically the provisions of Federal Rule of Criminal
Procedure 16(a)(1)(C) which provides that, upon request
of the Defendant, the government shall permit the
Defendant to inspect tangible objects which are material to
the preparation of the defense. Defense counsel requested
specifically "all remaining photographs, books, papers,
documents, tangible objects not previously furnished to us".
See D.E. 1921 (Vol. I Exhibit "G").
Letter from defense counsel to Joseph H. Hartzler and
Patrick Ryan outlining the practice of discovery in criminal
cases for the United States District Court for the Western
District of Oklahoma (where this case was then being
heard) and followed by District Judges Russell, Leonard,
Thompson, Cauthron, and Miles LeGrange. The local
practice was to routinely grant permission to defendants
to inspect, copy or photograph evidence favorable to the
defendant within the meaning of Brady and Giglio and
their progeny. Exculpatory evidence is typically delivered
to the defense within 10 days after an entry of a not guilty
plea. Defense counsel set out in detail a portion of the
opinion by former Chief Judge Fred Daugherty as
reported in United States v. Penix, 516 F. Supp. 248,
255 (W.D. Okl. 1981) in which Judge Daugherty
outlined the local practice concerning discovery pursuant
to Rule 16 and Brady. Defense counsel requested
specifically copies of the notification the government
presumably had sent to law enforcement agencies with
respect to Brady, Giglio, and Rule 16, specifically the
Criminal Investigation Division of the Armed Forces, the
Criminal Investigation Division of the Department of
Defense, the Defense Investigative Agency, the Central
Intelligence Agency. and other foreign and domestic
agencies. Defense counsel further noted that although the
first specific written request for Brady occurred
November 6, 1995, the defense had nevertheless
consistently requested orally that the government produce
exculpatory evidence. Finally, counsel stated specifically
that the defense recognized the possible tendency in this
case, given sensitive national security issues and the
existence of other possible conspiracies to damage
federal property, to withhold information from the
defense, but that the defense would address those
concerns and protect appropriately the government's
intelligence gathering activities. See D.E. 1921 (Vol. I
November 20, 1995
Letter to Joseph H. Hartzler and Patrick Ryan consisting of
Defendant McVeigh's third written request for exculpatory
information on behalf of Defendant Timothy McVeigh. The
defense requested specifically "copies of reports, witness
statements, telex messages, cables, fax messages,
photographs, intelligence summaries which relate or contain
information which would indicate or suggest the possibility.
likelihood and/or possibility that individuals or organizations
or a single individual either in this country or abroad was
planning or did execute action against the United States, its
property or employees or American civilians in retaliation
for" and then a lengthy list of specific events. See D.E. 1921
(Vol. I Exhibit "I").
November 21, 1995
Letter to Joseph Hartzler taking issue with Mr. Hartzler's
statement that the FBI 302's containing statements from
Eldon Elliott, Vicki Beemer, and the Fortiers did not contain
exculpatory information. Defense counsel addressed directly
concerns that the government's definition of "exculpatory
information" under Brady was unduly restrictive. See D.E.
1921 (Vol. I Exhibit "J").
December 7, 1995
Defendant McVeigh's Report to the Court concerning the
government's failure to produce discoverable evidence in
accordance with the Court's Order of August 23, 1995,
Rule 16 and the Brady decision. Defense counsel set out
specifically concerns relating to the government's failure to
seek discovery material from law enforcement agencies
other than the FBI, specifically the intelligence agencies
including the Central Intelligence Agency, the Criminal
Investigation Divisions of the Armed Forces and the
Department of Defense, the National Security Agency, the
Defense Intelligence Agency and other federal, state and
foreign investigative/intelligence agencies. See D.E. 1921
(Vol. I Exhibit "K" at 14-15). In this pleading, defense
counsel observed the absurdity of the prosecutors in this
case seeking a court order to obtain information from the
Bureau of Prisons--a component of the Department of
December 21, 1995
Defendant McVeigh's Motion to Require the
Government to Produce Exculpatory Evidence to Assist
the Defendant, Timothy James McVeigh, in Establishing
His Claim That He Is Not Guilty of the Offense Charged
Against Him in the Grand Jury Indictment. This document
set out in detail over 177 paragraphs encompassing 89
pages of specific and general requests for exculpatory
information. Included in these requests were information
of other suspects, see page 56, as well as information in
the possession of a multitude of intelligence and law
enforcement agencies. See D.E. 1922 (Vol. II Exhibit "L"
at p. 84).
February 15, 1996
Letter to Beth A. Wilkinson regarding outstanding issues
relating to discovery. This letter underscored the
defense's frustration with the government's production of
discovery, particularly Brady and Giglio items and
requested yet again specific reports generated by the
Central Intelligence Agency, the Criminal Investigation
Divisions of the various components of the Department of
Defense, the National Security Agency, the Defense
Intelligence Agency, the Bureau of Intelligence and
Research of the State Department, the Office for
Combatting [sic] Terrorism of the United States
Department of State, the National Security Council, the
Department of Defense Special Operations Agency, and
other domestic and foreign law enforcement agencies.
See D.E. 1923 (Vol.III Exhibit "M").
Letter to Beth A. Wilkinson requesting additional Brady
material containing information concerning, among other
things, information about the German Andreas Strassmeir
and any connections with neo-Nazi or other white
supremacist organizations. See D.E. 1923 (Vol. III
March 8, 1996
Defendant McVeigh's Motion for Disclosure of
Discoverable and Exculpatory Intelligence Collected by
the Central Intelligence Agency, the National Security
Agency, the Departments of Justice and State, and Any
Other Intelligence Gathering Agencies, Rule 16
Material and Brief in Support. This pleading set forth
31 paragraphs of specific discovery requests from
specifically named intelligence agencies, and provided
the factual and legal basis for the request. See D.E.
1923 (Vol. III Exhibit "O").
April 8, 1996
Specification of Materiality and Relevance ofNational
Security Information as it Relates to the Defense of
Timothy McVeigh (Ex Parte and Under Seal). This
document, which the Court has reviewed, exparte and
under seal, provided the factual basis, including the
defense hypothesis for the prior request for national
intelligence information filed March 8, 1996. See D.E.
April 9, 1996
Supplemental Motion to Motion for Disclosure of
Discoverable and Exculpatory Intelligence Collected by
the Central Intelligence Agency, the National Security
Agency, the Departments of Justice and State, and Any
Other Intelligence Gathering Agencies, Rule 16
Material and Brief in Support. See D.E. 1236.
April 24, 1996
Defendant McVeigh's Supplemental Specification of
Materiality of Requested Classified Information (Filed
Ex Parte Under Seal). See D.E. 1309.
April 29, 1996
Memorandum Opinion and Order on Motions for
Production of Classified Information by Chief Judge
Richard P. Matsch. See D.E. 1310.
May 6, 1996
Letter to Joseph H. Hartzler concerning an article in
Strategic Investment magazine which referenced a
classified Pentagon study concerning the bombing of the
Murrah Building. This letter requested information
concerning this classified study. See D.E. 1923 (Vol. III
May 8, 1996
Letter to Joseph Hartzler in response to this Court's Order
of April 29, 1996, recommending that defensecounsel
submit a direct request to government counsel to search for
information which would most likely be classified and in the
possession of the National Intelligence Agencies. This letter
consists of 16 pages of single-spaced specific requests
encompassing 53 separate paragraphs. Specifically
mentioned is any and all "follow up" information generated by
the governmentt to verify or corroborate th information
provided by Vincent Cannistraro indicating that Iraq may
have sponsored the bombing of the Murrah Building which
was found by defense counsel buried in the mounds of
"non-pertinent" documents. See D.E.1923 (Vol. III Exhibit
May 23, 1996
Letter to Joseph Hartzler reiterating a multitude of specific
Brady requests, and requesting information possibly
provided by the governments of Israel and Kuwait
concerning possible terrorist acts against this country around
April 19, 1995, and Oklahoma City specifically as a
potential target. See D.E. 1923 (Vol.III Exhibit "R").
June 14, 1996
Mailing en masse to 30 federal intelligence/law enforcement
agencies and a host of other various state investigative/law
enforcement agencies requesting material pursuant to Rule
16 and Brady and to which was attached a copy of this
Court's April 29, 1996 Memorandum Opinion and Order on
Motions for Production of Classified Information and the
May 8, 1996, letter to Joseph Hartzler enumerating 53
paragraphs of specific discovery requests. See D.E. 1923
(Vol. III Exhibit "S"). This mailing went out when, after 45
days, the government had produced to the defense nothing
had been received pursuant to the Court Order of April 29
as it related to the national intelligence data.
July 3, 1996
Letter to Joseph H. Hartzler requesting information
concerning applications and orders filed in the Foreign
Intelligence Surveillance Court and material obtained
therefrom constituting Brady or Rule 16 material and as it
relates to the bombing of the Murrah Building. See D. E.
1923 (Vol. III Exhibit "T").
August 22, 1996
Motion to Compel Production of Additional Intelligence
Information and Memorandum to the Court Concerning
Violation of the Government's Duty to the Defendant
Under Brady and This Court's Order of April 29, 1996,
Respecting National Intelligence Information. See D.E.
August 27, 1996
McVeigh's Motion to Compel the Production ofMaterial
and Exculpatory Classified InformationPursuant to Rule
16 and Brady. See D.E. 1918; D.E. 1921 (Appendix
Vol. I); D.E. 1922 (Appendix Vol. II); and D.E. 1923
(Appendix Vol. III).
August 27, 1996
McVeigh's Second Supplemental Specification of
Materiality of Requested Classified Information ExParte
and Under Seal. See D.E. 1929.
August 29, 1996
Supplemental Memorandum to the Court Regarding
Motion to Compel Production of National Intelligence
Information. See D.E. 1936.
September 3, 1996
Sealed Affidavit of Stephen Jones in Further Support of
Motion to Compel Release of National Intelligence Data,
Third Supplementation of Specification of Materiality and
Developments Filed Ex Parte and Under Seal. See D.E.
September 30, 1996
Defendant McVeigh's Supplemental Discovery Requests
for National Intelligence Information. See D.E. 2175.
October 1, 1996
Defendant McVeigh's Fourth Supplemental Specification
of Materiality of Requested Classified Information
(ExParte and Under Seal). See D.E. 2191.
October 10, 1996
McVeigh's Amended Motion to Compel the Production
of Material and Exculpatory Classified Information
Pursuant to Rule 16 and Brady (Supplemental Requests).
See D.E. 2265.
October 31, 1996
Defendant Tim McVeigh's Statement of Materiality and
Specificity With Respect to His Amended Motion to
Compel the Production of Material and Exculpatory
Classified Information Pursuant to Rule 16 and Brady
(Supplemental Requests). See D.E. 2403.
October 31, 1996
Defendant McVeigh's Fourth Supplement of Specification
of Materiality of Requested Classified Information (Vol.
II). See D.E. 2406.
November 8, 1996
Fifth Supplemental Specification of Materiality of
Requested Classified Information. See D.E. 2482.
November 12, 1996
Defendant McVeigh's Supplemental Discovery Requests
for Classified Information. See D.E. 2490.
November 21, 1996
Supplemental Discovery Requests for Classified
Information by Timothy James McVeigh. See D.E. 2533.
December 11, 1996
Memorandum to the Court Concerning Discovery of
Classified Information as to Timothy James McVeigh. See
December 27, 1996
Defendant McVeigh's Supplemental Memorandum to the
Court Outlining the Relevance and Materiality of Newly
Discovered Information From the Philippines, Israel and
the Middle East and Its Relevance to the McVeigh
Defense (ExParte and Under Seal). See D.E. 2763.
December 30, 1996
Supplemental Motion to Compel the Production of
Information in Possession of the Intelligence Agencies of
the United States and Enumerated Discovery Requests.
See D.E. 2768.
January 17, 1997
Motion for Reconsideration of Denial of Discovery
Material (Under Seal). See D.E. 2966.
January 21, 1997
Motion for Production of Evidence of Prior Warning of
the Oklahoma City Bombing Possessed by the Office of
Executive Secretariat at the Department of Justice by
Timothy James McVeigh. See D.E. 2984.
February 4, 1997
Motion to Compel Discovery Based Upon Newly
Discovered Information or in the Alternative Request for
Issuance of Subpoenas Duces Tecum Pursuant to Rule
17(c). See D.E. 3123.
February 26, 1997
Memorandum to the Court Regarding Motion to Compel
Disclosure of Certain Information and Reports as to
Timothy James McVeigh (Sealed). See D.E. 3313.
March 7, 1997
Defendant Timothy James McVeigh's Reply to the March
6, 1997, Response of the United States to McVeigh's
Motion for Additional Discovery (Sealed). See D.E. 3372.
Thus, the defense has requested information acquired by, and in the
possession of, the nation's intelligence and law enforcement agencies both
orally and in writing, and informally in written letters and formally in
written motions filed with the Court, since mid-August of 1995.
[CONTINUED IN PART FIFTEEN]
PART FIFTEEN OF EIGHTEEN:
IX. GOVERNMENT EVASION OF ITS DISCOVERY RESPONSIBILITIES.
The trial judge below has devoted an extensive amount of judicial time to
discovery issues in this case, the issues have been thoroughly briefed and
argued in the district court and are the subject of two Court orders. See
D.E. 1310 and D.E. 3016. No criticism is intended here toward his diligence
or effort, but, in the spirit of effective advocacy, it appears to counsel
from a careful study of how the respondent trial judge has handled this
matter that he does not believe he has authority to enter orders compelling
compliance pursuant to Rule 16 or Brady. Rather, the district court seems to
have taken the position that these matters are to be resolved by the
prosecutors in this case and the district court will rely upon the
representations of the prosecutors on discovery matters. See, e.g., D.E.
3016 at 3; D.E. 3410 (Pre-Trial Hearing--Sealed--not provided to Defendant
Nichols, March 10, 1997, at 34).
However, it has become very clear to counsel that the prosecutors in this
case are simply not going to conduct a thorough search responsive to the
requests of defense counsel. For just one example, government counsel
candidly acknowledged that they had not requested information from the
intelligence agencies concerning Dennis Mahon. See D.E. 2519 (Hearing on
Motions--Volume V--Sealed, provided only to government and Defendant
McVeigh, November 14, 1996, at 310-11). Government counsel may believe, in
good faith, that none of the requested information is relevant, but the
perceptions of government counsel do not change the fact that the defense
has made an extensive showing of materiality and relevancy. This information
is vital to the defense. Without it, the defense is being denied the
opportunity to prove or establish that its client is not guilty. An order
from this Court is necessary so that there is no dispute, no "breathing
room," as to the scope of the government's obligations to provide discovery
material to the defense, and counsel requests respectfully a ruling as to
whether the defense has made a sufficient showing of materiality as to the
specific items requested.
The government does not deny that the bombing of the Murrah Building
initiated what was arguably the most massive and intensive investigation
into a criminal act in this nation's history. The government does not deny,
and based upon the information in the public record as manifested in
Defendant McVeigh's Motion for the Disclosure of Classified Information
(D.E. 1079), it cannot deny that the national intelligence agencies of the
United States government were involved and participated in the investigation
of the bombing of the Murrah Building, at least in the "preliminary
meetings." See D.E. 1238 (Vol. I Transcript of Hearing on Motions, April 9,
1996, at 92). The government has not denied that the intelligence and
investigative agencies of the United States government have compiled volumes
of information, some of which is classified, concerning the bombing of the
As to intelligence agencies, the government has assured the district court
and the parties to this case that these agencies simply do not possess any
discoverable information, other than "claims of responsibility". D.E. 1620
(Transcript of Hearing June 18, 1996 at 11314). The prosecutors in this case
are confident that the intelligence agencies possess no information which is
discoverable to Defendant McVeigh because they have "sent letters" to the
Central Intelligence Agency, the Defense Intelligence Agency, and the
National Security Agency, requesting "all material they had under Brady,
Rule 16 and Jencks Act and any information they had which would tend to show
that these defendants did not participate in the crime or that others
carried out the crime." D.E. 1238 (Vol. I Transcript of Hearing on Motions
April 9, 1996, at 51).
In addition, the prosecutors in this case have directed correspondence to
the Pentagon inquiring whether the Department of Defense has conducted a
classified study of the bombing of the Murrah Building. See D.E. 1923 (Vol.
III Exhibit "V"). The government has refused to provide defense counsel with
a copy of any of these letters sent to the intelligence agencies and to the
Pentagon. See D.E. 1923 (Vol. III Exhibit "W"). The defense therefore has no
way of knowing whether the letter stated correctly what the Defendant
requests and the government's duty pursuant to Brady; or whether these
letters are in reality a "wink and a nod," to these agencies and are
therefore simply empty, meaningless pieces of paper.
There are (at least) two (2) fallacies in the government's approach in
attempting to obtain discoverable information from the intelligence agencies
which undermine its assertions that the intelligence agencies possess no
discoverable information and which make the denials by government counsel
not creditable. The first fallacy is that counsel for the government
understands properly the contours of the Brady decision and its progeny,
that is, has a basic understanding of what the Supreme Court means when it
held that the government must disclose exculpatory information to the
defense in order for a criminal trial to be fundamentally fair. Because
counsel for the government has exhibited such an extremely restrictive
definition of Brady, and because it is the government counsel that frames
the requests in the letters to the intelligence agencies, the agencies could
in good faith respond negatively to the requests yet still possess
discoverable material necessary for a proper defense in this case.
The second fallacy, and also the most fundamental, is that the alphabet soup
of government, agencies which possess information responsive to defense
discovery requests are in effect, separate fiefdoms of the federal
government as opposed to a cohesive centralized federal government, and
simply do not consider themselves part of this litigation, subject to the
jurisdiction of the district court, or obligated in any way to respond to
the requests of the Department of Justice lawyers representing the
government in this criminal case. Each of these concerns will be addressed
A. The Government's Restrictive Definition of Brady.
There is no dispute in this case that the government must furnish to the
defense information which is exculpatory and impeaching of government
witnesses and evidence as those terms are defined in Brady v. Maryland, 373
U. S. 83 (1963) and Giglio v. United States, 405 U. S. 150 (1972). See
United States v. McVeigh, 923 F. Supp. 1310, 1313 (D. Colo. 1996). The
district court has articulated the obligations of the prosecutors to
disclose such evidence and has observed that "the individual prosecutor has
a duty to learn of any favorable evidence known to the others acting on the
government's behalf in the case, including the police." Id. at 1313 (quoting
Kyles v. Whitley, U.S. , 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490 (1995)).
The district court declined to enter an order compelling discovery on these
matters, in part, by relying upon the representations of government counsel
that the government had requested Rule 16 and Brady material from other
government agencies and that the government was "being careful" and would
"err on the side of caution producing more documents than we think would be
necessary to turn over." Id. at 1313. Leaving aside the compelling case to
be made that government counsel's statements were at best disingenuous which
is discussed in great detail in a pleading filed August 22, 1996 (see D.E.
1898), this Court should have no confidence in the government's
representations concerning its efforts to locate and identify information in
the possession of the intelligence agencies because 1) government counsel
view their obligations pursuant to Brady in an impermissibly restrictive
way, and 2) even assuming that the prosecutors are in tune with Brady, they
have no authority to compel other government agencies to produce
discoverable classified information and they are utterly powerless to act on
behalf of the entire United States government in complying with
constitutional and federal rules concerning discovery in this area.
The individual prosecutors in this case simply have no way to compel or
require such agencies to conduct any search or inquiry of their files or
investigative reports. There is no court order; just simply some Supreme
Court decisions that the agency bureaucrat has not ever read. It is one
thing to presume the good faith of Mr. Hartzler, but it is quite another
thing to presume the good faith of the CIA station chief in Israel or
Kuwait, or a research analyst at the NSA in Ft. Meade, Maryland.
In the April 29, 1996 Order (D.E. 1310), the district court stayed its hand
in issuing a direct order compelling disclosure of classified information
based upon the representations of government counsel. However, the district
court's reliance upon the government's representations presupposed that the
government counsel understands their duty pursuant to Brady and Rule 16 and
that they have the means and authority to perform that duty. Neither of
these presuppositions have proven
The district court, on the record, has expressed "concern" over statements
made by the government counsel with respect to the government's discovery
obligations pursuant to Brady and Giglio. See Transcript of Proceedings,
December 13, 1995, at 44 (in the Western District of Oklahoma, Case No.
CR-95-0110-MH), no docket number aligned. Government counsel had, on
November 21, 1995, submitted correspondence to defense counsel stating that
defense counsel's definition of
"exculpatory information" was "far broader than ours [the government's]".
See D.E. 1923 (Vol. III Exhibit "X").
In this letter, counsel for the government includes the astonishing sentence
that, "In my opinion, nothing the Fortiers, or Eldon Elliott or Vicki Beemer
said can fairly be characterized as exculpatory of your client." Id. Counsel
for Defendant McVeigh has provided the district court with this example on
several prior occasions, but its importance cannot be over-emphasized.
Government counsel may, in good faith, view his obligations pursuant to
Brady and Giglio in such a restrictive manner; but his view is clearly
Because the distract court was "concerned" that government counsel took a
restrictive view of their Brady obligations, the Court corrected government
counsel on the record as follows:
This word "exculpatory" has been misused a lot,
I think. Not here, but generally. It's like, "to
be exculpatory, it has to be something that proves
you're not guilty." That isn't the case. It's
something that may diminish the government's
evidence and the credibility of its witnesses.
(Transcript of Hearing, December 13, 1995 at 45 (Western District of
Oklahoma, Case No. CR-95-0110-MH), no docket number assigned).
The most telling and insightful statement made by government counsel in this
case concerning discovery then occurred after the district court made the
above statement. After the Court had explained the definition of Brady and
Giglio to government counsel, government counsel indicated in the very next
sentence that he simply disagreed with the Court. He stated, "You accept Mr.
Jones' definition, and I will abide by that, of course." Id. at 46. What
government counsel dearly meant was that he disagreed with the district
court's views concerning discovery and the government's Brady obligations,
but simply recognized the Court's authority to define and make legal
decisions in this case.
But the district court has declined to intervene in this protracted
discovery dispute and has declined to order directly the government to
produce exculpatory evidence. Thus, counsel for Defendant McVeigh
respectfully suggests to the Court that the prosecutors (and maybe even the
government) may be acting in good faith in complying with its discovery
obligations, but they are simply acting in
accordance with their own narrow view of their duty to disclose exculpatory
information and are applying their definition of Brady rather than the
Court's. Because, despite what the government says, the government's actions
this to be the case. There are other indications.
In June, 1996, the government produced to the defense a multitude of FBI
302's, including a sheet of paper regarding Serial #14838. See D.E. 1921
(Vol. I Exhibit "A"). This sheet of paper advised the defense that Serial
#14838 contained "classified material not associated with this case[.]" Id.
Yet on July 31, 1996, defense counsel again received this same sheet of
paper indicating that this "classified" material was not associated with
this case, but attached to this description was the two aforementioned FBI
302's that have been the sum and substance of the government's production
regarding classified intelligence information. Id. These FBI 302's could not
be more "associated with this case," more exculpatory of Defendant McVeigh,
or more relevant and material to a defense to the charges in the indictment;
and that is not to mention that the investigation of the information in
these 302's occurred on the day of the bombing--April 19, 1995--but were
"transcribed" on June 18, 1996, and provided to the defense July 31, 1996.
If this Court were to peruse D.E. 1923 (Exhibit "Y"), the Court would find
extensive details concerning neurotic fringe persons making fanciful
"confessions", and who are clearly unreliable and mentally unbalanced, while
finding not a word about information relayed by a very senior officer in the
intelligence community of a major American ally informing the United States
government that a foreign power perpetrated the bombing of the Murrah
Building. This is the type of petty gamesmanship that defense counsel has
come to expect from the government, it is fundamentally unfair to Defendant
McVeigh, it is contrary to this Court's explicit definition of Brady and
Giglio, and if it continues unabated, it will ultimately result in a
reversal of a conviction in this case should that occur.
Although the district court has recognized that the individual prosecutors
in this case bear the burden of disclosure. Defendant McVeigh ultimately
bears the risk of nondisclosure: his life. It is Defendant McVeigh whose
interests are really at stake in this discovery dispute. The only reason
that the individual prosecutors in this case have a duty of disclosure is to
vindicate Defendant McVeigh's constitutional right to a fair trial. Thus,
although the individual prosecutors are charged with the duty of disclosure,
the relative risks of non-disclosure are stacked against the Defendant
because the risk to the prosecution is reversal of a conviction and a
retrial, but the risk to Defendant McVeigh is his very life. The prosecutors
in this case are, and there is no other diplomatic way to articulate it,
trifling with the administration of justice in this capital case and this
Court must simply put a stop to it. Judicial oversight of the discovery
process in this case is the only method of assuring compliance. It is, we
respectfully submit, long overdue.
The fundamental misunderstanding and distortion of Brady by government
counsel is critical in this case because the only method by which they have
attempted to acquire classified intelligence information is through letters
sent to the various agencies, specifically the Central Intelligence Agency,
the National Security Agency, and the Defense Intelligence Agency, "asking
them for all
materials they had under Brady, Rule 16 and Jencks Act and any information
they had which tend to show that these defendants did not participate in the
crime or that others carried out the crime." See D.E. 1238 (Vol. I
Transcript of Hearing, April 9, 1996 at 51).
However, counsel can have no faith in these "letters" sent by government
counsel to the various intelligence agencies because government counsel have
a view of Brady that is at odds with the controlling legal authority. There
thus exists a situation whereby an intelligence agency could in good faith
respond negatively to an inquiry from government counsel, yet still possess
information that it
would be required to disclose under the appropriate definition of Brady and
that of the Supreme Court cases. Counsel for the government have refused to
provide the defense with a copy of their requests to the intelligence
agencies. See D.E. 1923 (Vol. III Exhibit "W"). The district court
explicitly declined to approve or disapprove the government's letters to the
intelligence agencies. See D.E. 2519 at 305. The district court articulated
its concerns, stating that the court was not going to provide a "shield" to
anyone by saying that the court has put its seal of approval on the letters.
Id. The court then recognized that it was the ultimate responsibility of
government counsel to produce discoverable information. Id. at 6.
Defendant McVeigh is thus forced to rely upon the "good faith" of the
government to perform its disclosure obligations.
 The same government that seeks his conviction and execution.
But Defendant McVeigh will never be content under any circumstances to rely
upon the "good faith" of any agency of the United States government. The
United States government is a party opponent in this case, an adversary with
virtually unlimited resources, and is aggressively seeking to execute Mr.
McVeigh. Counsel for the government, and for that matter the personnel
staffing the agencies of the federal government, are litigants in this case,
they have a vested interest in this prosecution and in obtaining a
conviction and death sentence, it is in their interests to not disclose
information or to disclose as little as possible, and the defense will never
be content to "take their word for it" or rely upon their "good faith".
In the "ordinary" capital case, there may be no reason to question the good
faith representations of the prosecution or even the state government
(although the case law would certainly suggest numerous instances of
unjustified reliance or reliance misplaced or abused). But this is not an
ordinary case. This is a case where the government itself was the target.
Employees of the plaintiff were injured or killed. More than 15 government
agencies lost employees to death. Whole departments and regional offices
were destroyed, their work set back for months, in some cases years, and in
still other cases, can never be resumed.
Among these agencies were numerous law enforcement agencies, in fact, every
major federal law enforcement agency except the FBI. The ATF, Secret
Service, Drug Enforcement Agency and the Department of Defense, CID, and
even the Postal Inspectors (their building was catty-corner from the Alfred
P. Murrah Building) were involved as victims. Under these circumstances,
with 168 dead, 500 injured, and damage estimated at three quarters of a
billion dollars, it is not appropriate to rely upon their good faith, any
more than it was appropriate to rely upon Oklahomans as jurors, and for the
These government agencies do not honor the presumption of innocence, and
they are not going to help the defense provide our client with a fair trial.
They just are not. The drum beat of prejudicial leaks, courthouse
video-taped walkouts, presidential press conferences, and indeed the size
and magnitude of the crime itself, and its novelty on these shores, all
worked to prejudice the defense
preparation in multiple ways. Some of the effects have included massive
media interest with the result that many important fact witnesses refused to
talk with the Defendant's counsel and investigators. When civil suits were
filed by victims
which might have afforded the defense the opportunity, legitimately, to take
depositions of lay witnesses, the suits were dismissed on the eve of the
depositions, or when the plaintiffs would not or did not dismiss, the
government sought a stay. The result being that many sources of information
were--and still are--cut off though these same witnesses continue to talk to
FBI agents and to the press.
The inability of the defense to depose witnesses allowed the FBI to go back
to key defense witnesses and intimidate them by asking for polygraph tests
and telling them "you did not see what you claimed to have seen." The
defense was also prejudiced because there was a massive overwhelming sense
of collective judgment that the Defendant was guilty, and that was it. The
trial would be simply to rubber stamp of the validity of the arrest and
public relations campaign in the press that our client is guilty. Government
agencies, and others, simply refused to consider the possibility of
innocence, or that others might be involved, even a foreign connection. One
wonders how many American have to die in the World Trade Center, over
Lockerbie, in a military barracks in Saudi Arabia, or off Long Island to
realize that there is nothing remote, fanciful or inconsistent about the
same foreign hands (or others) being involved in the bombing of the Murrah
The government does not produce truly exculpatory evidence because it does
not believe it exists. Or, if it exists, it is not credible (or so they
claim). Either the Defendant has established that the material he seeks from
the national intelligence agencies is exculpatory or he has not. If he has,
then he needs a court order to pry it out, or at least, if that does not
work, there will not be any dispute later as to what should have been done.
The district court relied on good faith professed on the part of the
prosecution, but the defense does not
see any compelling need to rely upon the good faith of the Deputy General
Counsel of the DOD, William Sheehan and his counterparts throughout the
federal bureaucracy, because he does not have any. See D.E. 1923 (Exhibit "CC").
In fact, Mr. Sheehan's knowledge of his legal obligations under the
Constitution is so wrong it is breathtaking in its audacity: The Department
of Defense is not a party to this suit and is not bound by the Court's
order. The last time the defense looked at the Indictment it was captioned
"United States of America" versus Tim McVeigh, not 'The Department of
Justice" versus Tim McVeigh. This district court's order of April 29, 1996
(D.E. 1310) directed a response from the government as a whole. To
paraphrase a currently politically correct statement used in another
context: the government agencies just don't get it.
The government may respond once again citing gross numbers of discovery
items produced, but that is hardly the issue. Have we received everything
pursuant to a specific request, not just some of it, or fifty percent of it
or even ninety-nine percent of it? If there is a specific request, and the
government claims it has supplied it all, then it should inform the defense
which discovery items are responsive and sign a paper with the district
court that the defense has it all instead of just waiving a hand at a
warehouse full of papers and tangible objects and say: it's in there. The
government hopes that in the abundance of irrelevant material it has
furnished the truly relevant will not be missed. The defense comes before
the Court at this time and seeks invocation of the Court's authority to take
control of the discovery process in this case.
There are a myriad of examples where the government has, in the defense's
view, stonewalled, delayed, and obstructed the discovery process in this
case. Examples include the following:
1. Carol Howe: As discussed supra, the government provided to the defense
information that we now know came from Carol Howe, but that was presented to
the defense on January 26, 1996, in such a way that every proper noun was
grossly misspelled and Carol Howe was referred to as a confidential
informant named "Carol"--indicating that Carol may not have been her real
name (or the informant may not have even been a female) and certainly did
not give a last name. Such was the excess of the sloppy (or the defense
believes more likely intentional) spelling in this report, the government
itself could not even find it when the Court ordered it to respond to
defense requests concerning this information and this particular report was
omitted. In isolation, the defense might have been willing to credit the
government's claim that it could not find this particular insert, but since
it follows a clear pattern of government careless handling of exculpatory
information, the defense now believes that it was deliberate. But that is
not to say that the individual prosecutors in this case did it. The defense
believes that over zealous investigators within the ATF and the FBI are
In addition, government counsel stated to the Court, as discussed supra,
that Carol Howe had been dismissed as an ATF informant in March 1995, when
in fact, as the ATF knew, she had become an ATF informant again in early May
1995. Government counsel advised the district court of these facts only when
defense counsel brought it to their attention.
2. Government characterization of Brady: Government counsel, by written
letter (D.E. 1923, Exhibit "X") represented to defense counsel that in its
opinion, no statements made by Michael Fortier, Lori Fortier, Eldon Elliott
or Vickie Beemer could be characterized as exculpatory. Defense counsel
believes this statement is a compelling insight into the government's view
of its Brady obligations which underscores the need for judicial
intervention. The statements made by those individuals are so exculpatory
that lengthy hearings have been held before the district court concerning
their contradictory statements concerning clothing worn by "Robert Kling,"
who Kling was with, and what the other person looked like. The statements of
these individuals are so obviously exculpatory under the existing case law
that, when defense counsel received government counsel's letter containing
these statements, there was an immediate red flag raised and defense counsel
was placed on notice to monitor discovery matters very carefully. Defense
counsel is now convinced that the government in this case will not honor its
discovery and Brady obligations absent judicial intervention.
3. Information from Saudi Arabia: This information is discussed more fully
in D.E. 1898, but the concern to the defense is that the government received
facially credible information from a foreign intelligence officer that Iraq
had targeted specifically the Murrah Building by contracting seven (7)
Afghani freedom fighters residing in Pakistan to carry out the bombing. The
government became aware of this information the day of the bombing-April 19,
1995--yet, the two simple reports generated by the government were provided
to the defense under the guise of being "possibly non-pertinent" nearly one
year after the bombing and
spread out over five months, although the two reports were transcribed on
the same day. See D.E. 1898 (Exhibits "3" and "4").
4. "Master Minds": As discussed supra, the government indicated to the
district court that it had no information that any persons other than the
charged Defendants were the "master minds" of the bombing of the Murrah
Building. But this statement was made at a time when the government was in
possession of the information relayed from Saudi Arabia concerning Iraq
targeting the Murrah Building and using Afghan rebels to carry out the
bombing. The government clearly had information that persons and/or
organizations other than the charged Defendants were the master minds of the
bombing. It is only when the defense points these things out that the
government then retreats and amends its disingenuous statements as "there
was no underlying credible information" that others (as the Grand Jury noted
"unknown others") were responsible for the bombing.
5. Andreas Strassmeir: Information received from the government concerning
Andreas Strassmeir indicates certain symbols concerning Mr. Strassmeir's
immigration information. See attached Exhibit "A." Government counsel made
representations to the district court as to what these symbols "A" and "O"
mean. See D.E. 3410 (March 10, 1997, transcript at 11). The defense was
informed that "A" means "admitted" and "O" means "overstay." However, it
appears to the defense that according to the State Department's own chart of
the meanings of certain symbols, "A" means "diplomatic visa" and "O" means
"extraordinary ability." See attached Exhibit "I."
[CONTINUED IN PART SIXTEEN]
PART SIXTEEN OF EIGHTEEN:
>From a review of the documents in attached Exhibit "A," it is clear that the
"O" designation appears on Strassmeir's immigration records at a time when
he clearly would not have been an overstay. The first four trips to the U.S.
made by Strassmeir have the "A/O" designation when he did not overstay, and
the last trip, when he did overstay, do not indicate "A/O." In addition, the
comments by Mr. Brown on the last page of Exhibit "A," and incidently [sic]
Mr. Brown is in a position to access all of Strassmeir's immigration
records, indicate that Strassmeir overstayed on his last trip only--exactly
the opposite of government counsel's representations on March 10, 1997.
 A defense source informs us that special status is specific to the
computer system, is confidential and is available only to intelligence
investigation apprehension and detention. There is no code system where "A"
is "admitted" or "O" is "overstayed." "A" always means "diplomatic" and the
information that "A" meant "admitted" and "O" meant "overstayed," according
to our sources intimately familiar with INS records and State Department
visa records, is simply inaccurate.
In addition, the district court directed the government to inform defense
counsel whether Andreas Strassmeir was an informant for the ATF or other law
enforcement. Government counsel has since given this information to the
defense, but two months after the court ordered it, and then only during a
hearing before the district court discussing these matters. The defense
realizes that there are occasions where delays between the prosecution and
the defense occur when furnishing information, and certainly the defense has
been tardy, but in this particular instance, this information was crucial to
the defense and it was simply withheld without explanation for two months.
The defense will not rely upon government representations because experience
has taught us that the representations are subject to change at any time.
There is a pattern here of the government representing information, the
defense pointing out that the information is incorrect, and then government
back pedaling and retreating to a position of safety. The defense has
entreated the district court for judicial authority to put an end to this
government conduct, but the district court has not entered any orders. The
government has no interest in providing the information requested by the
defense. There is no penalty for their failure to do so, other than the
potential threat of appellate litigation years down the road. The government
is under incredible pressure to obtain convictions and death sentences in
this case at trial. But the penalty for Mr. McVeigh is forfeiture of his
life--if the government fails to produce information requested by the
defense and Mr. McVeigh is convicted and given the death sentence, he will
be strapped on to a gurney and a lethal dose of drugs will be injected into
his veins. These are the reasons why the defense believes that intervention
by this Court is absolutely necessary in order to ensure the fundamental
fairness of Mr. McVeigh's trial, and to leave no doubts concerning the scope
and type of information that the government must furnish.
B. Counsel for the Government Are Powerless to Effect Disclosure of
Discoverable Information from National Intelligence Agencies.
In the defense's view, the articulated position of government counsel
concerning its discovery obligations and its subsequent non-production of
Brady material in the possession of the national intelligence agencies, is
more than enough to warrant court intervention. However, even assuming
prosecutorial good faith and fidelity to Brady and Rule 16, there is a much
deeper, more fundamental piece of the puzzle in this case which necessitates
oversight by the Court. At its core, the defense's concern is that the other
agencies of the federal government simply do not consider themselves a part
of this litigation, subject to the jurisdiction of the Court, or obligated
in any way to cooperate with the individual counsel representing the
government in this case.
The counsel for the government have been given the mandate to disclose
discovery material to the Defendants on behalf of the entire United States
government, but these men and women simply do not have the authority to
accomplish this task. The United States government is so large and so
compartmentalized into various agencies that consider themselves
self-contained, that cooperation between the Department of Justice and the
national intelligence agencies is the exception rather than the rule. Only
this Court has the authority to compel the national intelligence agencies of
the United States government to comply with the criminal discovery process
in this case. Absent court intervention, it simply will not occur.
Federal Rule of Criminal Procedure 16(a)(1)(C) provides:
Upon request of the defendant the government shall
permit the defendant to inspect and copy and photograph,
books, papers, documents, photographs, tangible objects,
buildings or places, or copies or portions thereof,
which are within the possession, custody or control
of the government, and which are material to the
preparation to the defendant's defense or are intended
for use by the government as evidence in chief
at the trial or were obtained or belonged to the defendant.
(bold emphasis added.) It is Defendant McVeigh's position that this rule of
criminal procedure means what it says, and that the reference to the
"government" means all branches and agencies of the United States Federal
Government. The Plaintiff in this litigation is the United States--not the
Department of Justice--and the breadth of the government's discovery
obligations should span the entire federal government.
The district court's Order of April 29, 1996 (D.E. 1310), supports Defendant
McVeigh's position. The district court recognized that even though
government counsel indicated that the intelligence agencies were not
"aligned" with the criminal investigation of this case, that fact did not
limit the prosecution's duty to provide discovery from these agencies if
they possessed information which may be exculpatory or impeach the
government's case. See United States v. McVeigh, 923 F. Supp. 1310, 1315 (D.
Colo. 1996). The district court then framed government counsel's charter and
stated that "the prosecutors must respond to the defendants requests for
information from a broad perspective of the government as a whole." Id.
Counsel for the government in this case are incapable of doing so.
As an initial matter, the defense understands the government's
representations to the district court on June 18, 1996, to be simply that
the national intelligence agencies have not provided any information to
government counsel (other than "claims of responsibility"), rather than
taking the position that the national intelligence agencies do not possess
such information. In other words, counsel for the government have not
physically inspected all information in the possession of the intelligence
agencies of the federal government and concluded that nothing is
discoverable, rather government counsel has simply made requests to the
agencies and the "intelligence agencies have produced no information for us
[government counsel] that falls under Brady and that would provide any
exculpatory information to the defense." D.E. 1620 (Transcript of
Proceedings, June 18, 1996, at 114).
This distinction is critical because counsel for the government do not
physically possess the documents and information which are in the possession
of the national intelligence agencies. They seek to discharge their duty to
provide discovery in this case pursuant to Brady and Rule 16 by formulating
"letters" to the intelligence agencies and then proceed to make statements
to the Court and to defense counsel based upon the responses. But this
method of investigation is wholly inadequate because government counsel have
no authority to compel production from the intelligence agencies, and the
intelligence agencies themselves do not recognize any duty or obligation on
their part to provide discovery in this criminal case.
These statements are supported by the events of the latter part of 1995 in
which the defense observed the spectacle of government counsel in this case
filing a motion to obtain records from the Bureau of Prisons--a component of
the very same Department of Justice and under the direct authority of the
Attorney General of the United States. Yet, the same government counsel
expect to satisfy this Court and the defense that a "letter" from government
counsel will be adequate to persuade the intelligence agencies of the
federal government, which are not a part of the Department of Justice, to
produce national secrets for consumption by the defense. It is absurd.
Counsel for Mr. McVeigh received a letter from government counsel, dated
September 12, 1995, addressing a prior request of defense counsel for tape
recorded conversations of Mr. McVeigh generated by the Bureau of Prisons.
The Bureau of Prisons is a component of the Department of Justice, as are
United States Attorneys, and as is the FBI. The government's response was
that, although they had obtained some recordings, "any additional recordings
will only be provided with a trial subpoena or express court order." See
D.E. 1923 (Vol. III Exhibit "Z"). Thereafter, on October 27, 1995, the
government filed an extraordinary pleading in which the United States of
America sought a court order directing the Bureau of Prisons to produce the
taped conversations of the Defendants. See D.E. 1923 (Vol. III Exhibit "AA").
Defendant McVeigh responded to this pleading, noted its absurdity, and
raised a concern that the government was posturing and may have ulterior
motives in filing such document. The defense pleading, while not opposing
the government's motion, took exception to it and articulated the hope that
the government, by filing the motion, was not "attempting to create a
precedent by a narrow restrictive reading of the government's obligation to
produce discovery." See D.E. 1923 (Vol. III Exhibit "BB"). It seems that the
defense's concerns had merit unfortunately and our prediction has proven true.
The defense is unaware of any motion filed by the government seeking an
order for any intelligence agency to produce discovery. The defense is aware
of no explanation as to why a court order was necessary to obtain Mr.
McVeigh's own statements from the Bureau of Prisons within the Department of
Justice but is apparently, in the government's view, unnecessary in order to
obtain national secrets from agencies outside the Department of Justice. For
that matter, defense counsel is unaware of any "letters" sent from
government counsel to any of the intelligence agencies, other than
representations made by government counsel. They simply refuse to provide us
copies of these "letters". See D.E. 1923 (Vol. III Exhibit "W").
So, there is absolutely no reason to believe that even government counsel
have any faith that "letters" from the prosecution will prompt the
intelligence agencies of the federal government to provide government
counsel with discovery. If it takes an order from a federal district judge
to compel the Bureau of Prisons, a unit of the Department of Justice, to
provide discovery concerning the Defendant's own recorded conversations to
the prosecutors in this case, then it surely requires an order of this Court
to compel the intelligence agencies to produce information properly
discoverable pursuant to Brady and Rule 16.
The critical lesson to be learned from the whole episode of the government's
Motion and Order for Production of Information from the Bureau of Prisons is
this: government counsel have recognized the limitations of their office.
Government counsel probably cannot be faulted for this, because after all
they cannot enlarge their own authority or the authority of their office,
but it is disingenuous for government counsel to acknowledge the limitations
of their office in dealing with the Bureau of Prisons, yet on the other hand
try to convince the Court and defense counsel that the intelligence agencies
possess no discoverable information simply by virtue of the fact that the
U.S. Attorney has requested it and it has not been produced.
The simple fact is that there is a wall of separation between the various
agencies and departments of the Executive Branch of the federal government,
they are for the most part co-equal, and function independently of each
other. The letter from Mr. Sheehan, Deputy General Counsel for the
Department of Defense, received June 20, 1996 by the defense is an excellent
example of this dynamic at work. The relevant passage is set out below:
Neither the Department nor its components is a
party to this litigation, and the opinion
of Judge Matsch attached to your letters imposes
no discovery obligations on them.
See D.E. 1923 (Vol. III Exhibit "CC"). The Department of Defense said
essentially to the district court, 'The Department of Justice may have to
produce information to the defense but we don't." It is a vivid illustration
of the limitations of the investigative powers of the U.S. Attorneys and a
stark reason for this Court to intervene and order the Department of Defense
and other intelligence agencies directly to comply with the rules of
discovery in this criminal case.
The applicability of Brady and Rule 16 is an all or nothing proposition. The
intelligence agencies and the other various and sundry agencies of the
Executive Branch are either under the jurisdiction of this Court and are
bound to comply with discovery orders or they are not. Just as a person
cannot be "a little bit pregnant," the intelligence agencies of the federal
government cannot be "somewhat accountable" to divulge discovery to the
defense. The Department of Defense clearly perceives itself as being exempt
from discovery obligations in this case. The Defendant invites the Court to
instruct the Department of Defense otherwise, and to use the Court's power
and authority to enforce the discovery rules in this case.
The wall of separation between the FBI and the intelligence agencies springs
naturally from the distinct responsibilities of these two components of the
federal government. The FBI investigates domestic criminal acts; while the
intelligence agencies' main responsibility is to acquire information
regarding the security of the United States from foreign sources. Counsel
for the government observed correctly that the National Security Act of 1947
prohibits the intelligence agencies from investigating U.S. persons for
domestic criminal violations. See D.E. 1238 (Transcript of Proceedings,
April 9, 1996 at 50).
But counsel for the government went on to state, and this is the logical
flaw in the statement, that, "Therefore, the NSA, the CIA, and the DIA, the
Defense Intelligence Agency, were not involved with this investigation." Id.
Counsel for the government presupposes that the bombing of the Murrah
Building was the result of an entirely domestic criminal act. We do not.
This is precisely why it is a logical fallacy for the government to say that
the National Intelligence Agencies do not investigate crimes, therefore they
have not investigated this case.
On the contrary, the National Intelligence Agencies, while they may not have
specifically investigated "this case," would have most certainly, and indeed
would have been completely inept if they had not, investigated the bombing
of the Murrah Building. In other words, the intelligence agencies
investigated the event from the perspective of acquiring information
necessary for the National Security, rather than investigating the event as
the Department of Justice did in seeking to bring the perpetrators to
justice. The investigations conducted by each are wholly distinct and the
information generated by each investigation would not necessarily be the
same, and would probably not be the same.
These differences were cogently illustrated by the highly regarded Foreign
Policy Research Institute of the University of Pennsylvania, when it observed:
While these are reasonable questions, they reveal
a lack of understanding about how the U.S. government
works when legal and national security issues of this
special sort overlap. A high wall, in fact, stands
between the Justice Department, including the
Federal Bureau of Investigation, on the one hand, and
the national security agencies on the other. Once
arrests are made, the trials of individual perpetrators
take bureaucratic precedence over everything else.
The Justice Department inherits primary investigatory
jurisdiction, and the business of the Justice Department
is above all the prosecution and conviction of individual
criminals. Once that process is underway, the Justice
Department typically denies information to the national
security bureaucracies, taking the position that passing
on information might "taint the evidence" and affect
prospects for obtaining convictions.
"The World Trade Center Bomb: Who Is Ramzi Yousef? Why It Matters," The
National Interest, No. 42, Winter 1995/96 at 4. This "fire wall" separating
the intelligence and law enforcement communities was noted as recently as
August 20, 1996 in the New York Times, in an article written by Larry
Johnson, former Deputy Director of the State Department's Counterterrorism
Office from 1988 to 1993. See D.E. 1918 at 34. Mr. Johnson noted the
"problem" of the lack of coordination between the FBI and the CIA.
Thus, the relationship between the FBI and the intelligence agencies is
understandable, but hardly surprising, since the intelligence agencies'
primary duty is, of course, to keep secrets. But there are a few select
situations in which information in the possession of the national
intelligence agencies, or even the President of the United States may be
divulged, one of which is a criminal prosecution. See United States v.
Richard M. Nixon, President of the United States, 418 U. S. 683 (1974). But
if an intelligence agency is unwilling to divulge discoverable material,
counsel for the government cannot force them to do so, and neither can
counsel for Defendant McVeigh. That is the reason that this Court must now
So, in sum, counsel for the government have neither the authority nor the
inclination to conduct a vigorous effort to obtain discoverable information
in the possession of the National Intelligence Agencies and to divulge such
information to the defense. The defense has a good faith belief that such
information exists, that it is discoverable, and has provided a factual
basis for the materiality of such evidence. The defense now asks the Court
to take action and order such information produced.
A. Judge Matsch's Denial of Mr. McVeigh's Discovery Motions is Reviewable
Upon Petition for Writ of Mandamus.
Mr. McVeigh's right to the requested discovery material is dear and
indisputable. Moreover, mandamus is the appropriate means of reviewing a
district judge's denial of discovery motions. In re Joint Eastern & Southern
Districts Asbestos Litigation, 22 F.3d 755, 764 (7th Cir. 1994). As the
Supreme Court noted in Roche v. Evaporated Milk Assn., 319 U.S. 21 (1943),
mandamus is traditionally used "to confine an inferior court to a lawful
exercise of its prescribed jurisdiction or to compel it to exercise its
authority when it has a duty to do so."
 According to the All Writs Act, "[t]he Supreme Court and all courts
established by act of Congress may issue all writs necessary or appropriate
in aid of their respective jurisdictions and agreeable to the usages and
principles of law." 28 U.S.C. ' 1651(a).
As this Court held in Texaco, Inc. v. Chandler, 354 F.2d 655 (10th Cir.
1965), cert. denied, 383 U.S. 936 (1966):
The jurisdiction of this court to take action to
guarantee a fair and impartial trial is no longer
open to question. Upon an adequate showing, this
court has held that it has the "power and inescapable
duty," whether under the all writs statute, 28 U.S.C.
1651, or under its inherent powers of appellate
jurisdiction, to "effectuate what seems to us to be
the manifest ends of justice." 354 F.2d at 657
(quoting United States v. Ritter, 272 F.2d 30, 32
(10th Cir. 1959), cert. denied, 362 U.S. 950 (1960)).
The remedy of mandamus is a drastic one that should be invoked only in
extraordinary circumstances. Will v. United States, 389 U.S. 90, 95 (1967).
However, extraordinary circumstances abound here. Mr. McVeigh goes on trial
for his life in one week. A system that would take life must first give
justice. This is a case where there is no smoking gun. There has been no
confession. There has been no admission of guilt. The eyewitness testimony
proffered by the government so far is in disarray and is contradictory. The
FBI forensic laboratory is itself under serious challenge by senior agents
in scientific analysis and its critical flaws have been amply documented by
the Inspector General of the United States Department of Justice. Michael
Fortier, the government's star witness, has made contradictory public
By not tendering the information requested in this motion, the federal
government is simultaneously prosecuting Timothy McVeigh while at the same
time attempting to restrict his ability to use information that is necessary
to defend himself. See United States v. Fernandez, 913 F.2d 148, 154 (4th
Cir. 1990). As the Fourth Circuit has stated, courts must not be remiss in
protecting a defendant's right to a full and meaningful presentation of his
claim to innocence. Id. Timothy McVeigh is constitutionally presumed
innocent and now seeks an order from this Court commanding the government to
produce that which is relevant to his defense and to which he has no other
means of access. The district court's refusal to compel discovery in this
capital case severely hamstrings Mr. McVeigh's ability to defend against the
charges and prejudices Mr. McVeigh's right to a fair trial.
B. Federal Rule of Criminal Procedure 16 Entitles Mr. McVeigh to the
Requested Discovery Material.
Federal Rule of Criminal Procedure 16 provides in relevant part:
Upon request of the defendant the government shall
permit the defendant to inspect and copy or photograph
books, papers, documents, photographs, tangible objects,
buildings or places, or copies or portions thereof,
which are within the possession, custody or control
of the government, and which are material to
the preparation of the defendant's defense or are
intended for use by the government as evidence in
chief at the trial, or were obtained from or belong
to the defendant.
Fed. R. Crim. P. 16(a)(1)(C).
The material Mr. McVeigh requested under Rule 16(a)(1)(C) is both material
and relevant to his defense. Mr. McVeigh's discovery requests are relevant
and material in that all information obtained by the United States from
intelligence sources that identify foreign or domestic groups or individuals
other than Timothy McVeigh as being either responsible for, or suspected of
involvement in the bombing is discovery absolutely necessary to the
development and presentation of his defense.
In Bankers Life & Coal Co. v. Holland, 346 U.S.379 (1953), the Court held
that when a petitioner can show either an usurpation of power or a clear
abuse of discretion, the right to mandamus is clear and indisputable. The
court below abused its discretion when it ignored its obligations under Rule
16. Rule 16 entitles the defense to any information that is relevant and
material. The trial court's refusal to compel the government to produce the
requested information violates the rules of discovery. Although the trial
court is vested with wide discretion concerning matters of discovery, this
discretion is not unbridled and it was abused here.
Rule 16 permits discovery that is "relevant to the development of a possible
defense." United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)
(quoting United States v. Clegg, 740 F.2d 16, 18 (9th Cir. 1984)). The mere
fact that some of this information may be classified is of no moment. The
standard for discovery of classified information is low, and is very easily
met in this case.
In order to prevail on a discovery request for classified information, a
defendant must make a threshold showing that the requested material is
relevant to his case. United States v. Yunis, 924 F.2d 1086, 1095 (D.C. Cir.
1991). This standard is little more than the "low" legal hurdle of
relevance. United States v. Yunis, 867 F. 2d 617, 623 (D.C. 1989) (the
district court properly noted that the defendant must show that the
statements sought crossed the low hurdle of relevance); United States v.
Yunis, 924 F. 2d 1086, 1095 (D.C. Cir. 1991) (threshold showing that the
material is relevant is a "low" hurdle); see also United States v. Rezaq,
156 F.R.D. 514, 519 (D.D.C. 1994) (the threshold showing for a defendant to
prevail on a discovery motion for classified information is not a high one).
Significantly, the requested discovery need not directly relate to Timothy
McVeigh's guilt or innocence. Id. Rather, the requested information must
simply "play an important role in uncovering admissible evidence, aiding
witness preparation, corroborating testimony, or assisting impeachment or
rebuttal." Rezaq, 156 F.R.D. at 519 (citing United States v. George, 786 F.
Supp. 11, 13 (D.D.C. 1991)). Thus, the requested information in this motion
is discoverable under the applicable legal standards.
But there is another concern here. Factually, this case is in a class by
itself Counsel cannot think of any other criminal prosecution in which the
full focus of the federal government's massive resources, including
military and intelligence resources, have been directed worldwide with the
sole purpose of identifying and apprehending the persons responsible for the
crime of which Mr. McVeigh stands accused.
 A military C130 was used for photo reconnaissance of downtown Oklahoma
City after the bombing. See FOX Broadcast "Ground Zero" February 27, 1996
(video footage of C130 flying over Murrah Building and interview with Capt.
Steve Pulley(?) assigned to the 137th Airlift Wing of the Oklahoma Air
National Guard stating that the C130 was used for "evidentiary and
historical photos."). Capt. Pulley(?) stated that an FBI agent was on board
the C130 as it flew its reconnaissance mission over the Murrah building. The
purpose of the FBI agent was "to keep evidentiary control." Id. In addition,
a variety of locations relevant to the bombing were identified for
reconnaissance satellite photo image recovery. See attached Exhibit "D."
Even the bombing of the World Trade Center in Manhattan lacked the
identifiable targeting of the federal government specifically, not to
mention the catastrophic casualties present in the bombing of the Murrah
Building. This case simply stands
alone. To the extent that the federal government has spared no resource in
its investigation, it would be fundamentally unfair to deny to Mr. McVeigh a
fraction of the product of that investigation when the fruits are relevant
and material to the defense in this capital case.
Moreover, the relevancy and materiality of the discoverable intelligence
information sought should be viewed with an eye towards the difficulty in
proving such qualities at this early stage of what will certainly be a
complex criminal matter. See United States v. Poindexter, 727 F. Supp. 1470
(D.D.C. 1989) rev 'd on other grounds, 951 F.2d 366 (D.C. Cir. 1991). The
language and spirit of the discovery rule is designed to afford an accused,
in the interest of fairness, the widest possible opportunity to inspect and
receive such materials in the possession of the government as may aid him in
presenting his side of the case. Id. at 1473. The Court in Poindexter felt
it best to resolve close or difficult discovery issues in favor of the
The language and the spirit of the Rule are designed
to provide to a criminal defendant, in the interest
of fairness, the widest possible opportunity to
inspect and receive such materials in the possession
of the government as may aid him in presenting his side
of the case. Moreover, because of the CIPA process, the
Court will have an opportunity to address once again the
issue of the materiality of classified documents that
have been produced and their use as evidence. For these
reasons, . . ., the court has been inclined to err on the
side of granting discovery to the defendant of matters
that may fairly be encompassed within the indictment,
and it has generally resolved close or difficult issues
in his favor.
Id. (footnotes omitted) (bold emphasis added); see also United States v.
Rahman, 870 F. Supp. 47, 51 (S.D.N.Y. 1994) (Brady and its progeny deal with
the issue of materiality after a conviction and provide only limited
guidance before trial when the significance of some evidence may not be
[CONTINUED IN PART SEVENTEEN]
PART SEVENTEEN OF EIGHTEEN:
C. The District Court Abused its Discretion by Denying Mr. McVeigh's
Repeated Requests for Brady Material.
The information Mr. McVeigh seeks to aid in his defense falls clearly within
the principles set out in Brady v. Maryland, 373 U.S. 83 (1963). Under
Brady, prosecutors have a constitutional obligation to disclose exculpatory
evidence. "The suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosection." Id. at 87. The Supreme Court has recently retooled
the "materiality" component of the Brady doctrine. See Kyles v. Whitley, 514
U.S. 419, 115 S. Ct. 1555 (1995). The Court emphasized that a showing of
materiality does not mean that disclosure of suppressed evidence would have
resulted in a defendant's acquittal. Kyles, 115 S. Ct. at 1565-66. Rather,
the touchstone of Brady is whether "the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine
confidence in the verdict." Id.: at 1566. In assessing Brady claims,
suppressed evidence must be considered collectively, and not on an
item-by-item basis. Id. at 1567.
Although a court's evaluation of a Brady claim in many cases takes place
postconviction, the Supreme Court's articulation of the materiality
standards in Kyles have a direct bearing on the government's obligations in
this case. The information the government is constitutionally compelled to
divulge to Mr. McVeigh includes the information in this motion, if this
court deems it material, regardless of whether an acquittal could be had if
the information is divulged, and if the cumulative effect of the evidence is
such as to undermine the outcome of a jury verdict. At bottom, the prudent
prosecutor should resolve all doubtful questions in favor of disclosure, and
this court should grant liberal discovery, in order "to preserve the
criminal trial, as distinct from the prosecutors' private deliberations, as
the chosen forum for ascertaining the truth about criminal accusations."
Kyles, 115 S. Ct. at 1568.
Courts have recognized that application of the Brady doctrine prior to trial
is problematic. Because many cases involving Brady issues are decided
post-conviction, such cases "provide only limited guidance before trial,
when the potential significance of some evidence may not be fully apparent."
United States v. Rahman, 870 F. Supp. 47, 51 (S.D.N.Y. 1994). Thus, the
difficulty in calibrating the quantum of effect requested information would
have on the outcome of a trial is exceedingly difficult in a case such as
this one where no conviction has occurred. Because of the pre-trial posture
of this case and the fact that the government has sought the death penalty,
a liberal application of this court's authority to extract discovery from
the government is appropriate.
The Tenth Circuit has acknowledged that for the purposes of Brady discovery
requests, the term "prosecution" includes not only the staff of the
prosecutor's office, but extends to law enforcement personnel and other
agencies involved in the criminal investigation. Smith v. Secretary of New
Mexico Department of Corrections, 50 F.3d 801, 824 (10th Cir. 1995); see
also United States v. Perdomo, 929 F. 2d 967, 978 (3rd Cir. 1991) (term
"prosecution" also includes investigatory activities). The prosecutor is
"deemed to have knowledge of the access to anything in the custody or
control of any federal agency participating in the same investigation."
United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir. 1995). The
information and evidence obtained by all segments of the United States
government, including intelligence information obtained from foreign
governments or sources, are therefore subject to the requirements of Brady
and Rule 16.
Thus, the prosecution cannot avoid disclosure by the simple expedient of
leaving relevant evidence in the hands of another agency while utilizing it
in preparing its case for trial. United States v. Trevino, 556 F.2d 1265,
1272 (5th Cir. 1977). When the government's investigation has extended to
the office of another government agency, the search for exculpatory
information must be at least as thorough as was the search for inculpatory
D. Standard for Guidance in Search.
Absent some showing in precedent or principle for
applying a different standard in relation to some
aspect of the search the government is obligated to
make, I conclude that the following two guidelines
should be applied:
First, the government must search at least as widely
and diligently for exculpatory evidence as it has
searched at any time, in relation to charges in the
case on trial or any possibly related offenses, for
evidence that might be used by the government. If, for
example, the government attorneys and persons in any
agency aiding in the investigation at any stage have
extended their search for possibly inculpatory evidence
to any office of another government agency, the search
for exculpatory evidence must extend to that office
and must be at least at thorough as was the search for
Second, the government must also extend its search to
other offices as to which, on the basis of information
accessible to the government attorneys by a search in
the offices to which the first guideline applies, it
appears there is a reasonable likelihood that a search
of reasonable scope by feasible methods would identify
evidence within the legal definition of the subject
matter scope of the duty of disclosure.
United States v. LaRouche, 695 F. Supp. 1265, 1281 (D. Mass. 1988).
Nor can the prosecution circumvent Brady by keeping itself in ignorance or
by compartmentalizing information about different aspects of the case.
United States ex rel. Smith v. Fairman, 769 F.2d 386, 391-93 (7th Cir. 1985)
(we believe that the purposes of Brady would not be served by allowing
material exculpatory evidence to be withheld simply because the police,
rather than the prosecutors, are responsible for non-disclosure). The
prosecution's good faith or bad faith in efforts to produce discoverable
material is, in fact, irrelevant. United States v. Agurs, 427 U.S. 97, 110
(1976); Smith, 769 F. 2d at 391-93. A perfunctory denial by a low-level
official without full access or clearance to the information requested will
not suffice to relieve the government's obligations to produce all
discoverable material, regardless of the information's source,
classification or sensitivity.
Simply stated, the due process clause places an affirmative duty on the
prosecution to disclose evidence favorable to Mr. McVeigh. Kyles, 115 S. Ct.
at 1565. This constitutional requirement means that the individual
prosecutors in this case have a duty to learn of any favorable evidence
known to anyone acting on the government's behalf in this case, including
law enforcement. Id. at 1567. There is no principled reason why the
individual prosecutors in this case should be absolved of their duty under
the Constitution to learn of any favorable evidence on Mr. McVeigh's behalf
which happens to be in the possession of other agencies in the Executive
Branch, including intelligence agencies. Mr. McVeigh clearly has no
independent access to such information and it would be fundamentally unfair
to saddle him with the burden of producing such evidence. See Smith v.
Secretary of Department of Corrections, 50 F.3d at 823 (the Brady rule is
grounded in notions of fundamental fairness that embody practical
recognition of the imbalances inherent in our adversarial system of criminal
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
By its own terms, Brady applies to evidence which is material either to
guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); see also
Chaney v. Brown, 730 F.2d 1334, 1345 (10th Cir. 1984) (citing cases).
The government has essentially conceded that the Brady doctrine requires
evidence which "may support a lesser culpability claim in the sentencing
phase of this case if a jury finds [Mr. McVeigh] guilty." D.E. 881 at 29
(Brief of the United States in Response to Mr. McVeigh's Discovery Report
and Motions). The government does not dispute that such information is
relevant under Brady to a capital sentencing proceeding; rather, the
government merely characterizes Defendant McVeigh's request for such
information as "procedurally premature." Id. The government is in fact
precluded from making the argument that the discovery requests are not
material to a sentencing determination in a capital case not only by Brady
itself, but by this Circuit's decision in Chaney v. Brown, 730 F. 2d 1334
(10th Cir.) cert. denied, 469 U. S. 1090 (1984).
In Chaney, the Tenth Circuit granted a petition for a writ of habeas corpus,
holding that the prosecution had violated Brady by withholding evidence
which might have affected the sentence in a capital case. The evidence
suppressed by the prosecution consisted basically of FBI 302's which
detailed witness statements, some of which raised questions concerning the
location of the defendant at the time of the crime and whether he acted
alone, and others were simply inconsistent with the prosecution's theory of
the case and the timing of events.
In granting the writ, the Tenth Circuit observed that the Eighth and
Fourteenth amendments require that the sentence in a capital case not be
precluded from considering as a mitigating factor, any of the circumstances
of the offense that the defendant proffers as a basis for a sentence less
than death. Id. at 1351 (citing Eddings v. Oklahoma, 455 U. S.104, 110-12
(1982)). The Tenth Circuit held that the evidence in Chaney was mitigating
because it related to the circumstances of the offense as a whole, and also
tended to support inferences that others were involved in committing the
crime, and that defendant Chaney may have been less culpable than others. Id.
Perhaps more important, the Court noted that the withheld evidence in Chaney
was significant with respect to the aggravating circumstances that had to be
proven in order to sentence him to death. In Chaney, the aggravating
circumstances as found by the jury to support the death sentence rested on
the conclusion that Chaney was the sole perpetrator of the crimes. Id. The
Because the withheld evidence tends to support
inferences that Chaney may not have been the
sole participant in the criminal episode, and
may not have personally killed the victims, or
had been present at the time of the murders,
the evidence might have caused the jury not
to find these aggravating circumstances beyond
a reasonable doubt.
Id. at 1352.
Thus, Brady and Chaney make clear that the government is constitutionally
obligated to provide to Mr. McVeigh any information concerning "other
participants" and all reports concerning John Doe No. 2, as well as
information concerning "the circumstances of the offense" which Mr. McVeigh
could possibly proffer as a basis for a sentence less than death. To the
extent that any of the preceding 17 specific requests in this motion address
any of this information, the government is simply compelled to produce it.
However, the government's response to Mr. McVeigh's prior motion for
discovery evidences a very disturbing picture of the government's
understanding of its obligations under Brady. In fact, the government's
position is inconsistent and contradictory even within its own brief in
response to Mr. McVeigh's discovery motion.
On one hand, the government proudly proclaims that it is "voluntarily
exceeding its discovery obligations" as well as "exceeding Brady's
requirements" by voluntarily agreeing to make all witness statements to law
enforcement officers available to the defense. See D.E. 881 at 5, 19-20
(Brief of the United States in Response to Defendant McVeigh's Discovery
Report and Motions).
 The government did not turn over to defense counsel all Grand Jury
transcripts until ordered to do so by the court below in January, 1997. The
government has never provided to defense counsel memos of interviews by
attorneys for the government.
In addition, the government has undertaken a "Brady review" and has
ostensibly aided the defense by categorizing Brady material into six (6)
categories, including categories of other possible perpetrators as well as
information relating to possible mitigation of culpability. Id. at 19-20.
Yet, barely five pages away in their brief, the government assails many of
Mr. McVeigh's discovery requests as "meritless," including information of
others with motives to bomb federal buildings, as well as information on
John Doe No. 2. Id. at 25-30. In spite of the Tenth Circuit's decision in
Chaney, the government nevertheless insists that evidence relating to John
Doe No. 2 is not exculpatory. Id. at 28. The government cannot have it both
ways. It cannot on the one hand be commended for exceeding its obligations
under the Constitution and the Brady decision by divulging information to
which the defense is (according to the government) not constitutionally
entitled; but on the other hand, argue that evidence concerning John Doe No.
2 as well as other information on other possible perpetrators of the bombing
are not exculpatory as a matter of law.
If the government views its production of Brady material regarding "other
subjects" such as John Doe #2 as gratuitous, then the government may
withhold crucial evidence at the same time it maintains that legally it is
not required to give it at all. The government appears to have a deep and
fundamental misunderstanding of its constitutional duties under Brady. The
government's tactic throughout this case has been a willingness to divulge
volumes of irrelevant information that it would not otherwise be
constitutionally required to divulge, while at the same time refusing to
divulge relevant and material information specifically requested by Mr.
McVeigh, and then arguing incredibly that the requested information does not
fall within the ambit of the Brady decision.
The government's position on these matters is inexplicable. The government
does not contend that this information does not exist, it has taken the
position that even if this evidence does exist, Mr. McVeigh is not entitled
to it as a matter of law. The government's interpretation of Brady and its
progeny is fundamentally flawed and especially troubling in a case such as
this one where the government is seeking the death penalty while at the same
time maintaining that it has no duty to divulge information it may have
concerning other possible perpetrators of the crime. It invites the real
risk of a reversal of a conviction, should there be one.
Typical of the government's stunted interpretation of Brady is its citation
to this Court's opinion in Hopkinson v. Shillinger, 781 F. Supp. 737 (D.
Wyo. 1991) (Matsch, J., by designation). The government cites Hopkinson for
the proposition that evidence of the involvement of other perpetrators in a
murder is not Brady material because such evidence does not show that the
defendant was not involved in the murder. D.E. 881 at 29 (Brief of the
United States in Response to Defendant McVeigh's Discovery Report and
Motions). The government uses Hopkinson in order to argue that evidence of
the involvement of John Doe No. 2 is not exculpatory, and therefore not
properly discoverable under Brady. Hopkinson stands for no such thing and
could not be more inapposite.
The procedural posture of Hopkinson was that of a successive petition for a
writ of habeas corpus on a 12-year old conviction and death sentence of a
state prisoner. Thus, the inquiry before the Court was whether the
suppressed evidence would have created a reasonable probability sufficient
to undermine confidence in the outcome of the trial and death sentence that
had already occurred. In contrast, Defendant McVeigh is constitutionally
presumed innocent of the crimes for which he is charged in the Indictment
and seeks an Order from this Court to compel the government to produce
information to which he is constitutionally entitled prior to any conviction
and sentence. Because the potential significance of some evidence may not be
fully apparent at the pre-trial stage, cases such as Hopkinson provide this
court with "limited guidance." See United States v. Rahman, 870 F. Supp. 47,
51 (S.D.N.Y. 1994).
As the government has emphasized, it must be remembered that Brady stems
from the "fundamental fairness" requirement of the due process clause and
its purpose is to ensure that a miscarriage of justice does not occur. D.E.
881 at 29-30 (Brief of the United States in Response to Defendant McVeigh's
Discovery Report and Motions) (citing Arizona v. Youngblood, 488 U.S. 51, 58
(1988); United States v. Bagley, 473 U. S. 667, 675 (1985)). Thus, Mr.
McVeigh does not come before this Court as a convicted felon seeking
absolution, but rather as a criminal defendant presumed innocent seeking
information relevant and material to his defense in a capital case which is
in the sole custody and control of his adversary. Mr. McVeigh asks this
Court for nothing more than to Order the district court to perform its duty
under the Constitution.
Moreover, when this Court decided Hopkinson, it did not have the benefit of
the Supreme Court's decision in Kyles v. Whitley, 115 S. Ct. 1555 (1995). In
Kyles, the Supreme Court emphasized that the "materiality" requirement under
Bagley was not a sufficiency of the evidence test. Kyles, 115 S. Ct. at
1566. The Court made clear that it makes no difference under Brady whether
there would still have been adequate evidence for a conviction even if the
favorable evidence had been disclosed. Id.
The difference between the inquiry in Hopkinson and the inquiry in this case
is the difference between deciding whether, if an oar would have been thrown
to a person in a boat going over a waterfall would have saved him, or
whether an oar should be thrown to a person in a boat about to go over a
waterfall. It was too late to throw the oar to Hopkinson, but it is not too
late to throw one to Mr. McVeigh. The Constitution requires it. Fundamental
fairness demands it.
[CONCLUDED IN PART EIGHTEEN]
PART EIGHTEEN OF EIGHTEEN - CONCLUSION:
XI. SPECIFIC RELIEF REQUESTED
Petitioner requests that a Writ of Mandamus issue to the Respondent Judge of
the District Court directing him to command the government to produce the
material requested in the manner outlined by the defense in sealed district
court documents D.E. 1079, 2265, 2533, 2768, and 3123.
Additionally, Petitioner requests that the writ include a direction to the
district court compelling the government to produce information responsive
to 2 of Exhibit "A" attached to this Petition which is a document with the
heading "Department of Statement Diplomatic Security." This paragraph
indicates that certain military record checks were pending and that results
would be forwarded to the government by separate telegram. The defense
requests the documents provided to the government in the separate telegram.
Petitioner also requests that this Court, while considering these matters,
either stay the commencement of the trial or in the alternative, allow the
district court to proceed with jury selection but stay the commencement of
evidence being received until these issues have been resolved in this Court.
L Stephen Jones, OBA #4805
Robert Nigh, Jr., OBA #011686
JONES, WYATT & ROBERTS
Denver Place South Tower
999 18th Street, Suite 2460
Post Office Box 8257
Denver, Colorado 80201
Richard Burr, FBA #407402
Denver Place South Tower
999 18th Street, Suite 2460
Post Office Box 8257
Denver, Colorado 80201
Jeralyn E. Merritt, Esquire
303 East 17th Avenue, Suite 400
Denver, Colorado 80203
Cheryl A. Ramsey, OBA #7403
Szlichta & Ramsey
Post Office Box 1206
Stillwater, Oklahoma 74076
Christopher L. Tritico, TBA #20232050
Essmyer, Tritico & Clary, LLP
Houston, Texas 77007
Robert L Wyatt, IV, OBA #13154
Michael D. Roberts, OBA #13764
James L. Hankins, OBA #15506
Randall T. Coyne, MBA #549013
Amber McLaughlin, TBA #13740980
Robert J. Warren, OBA #16123
Mandy Welch, TBA #21125380
Holly Hillerman, OBA #017055
ATTORNEYS FOR DEFENDANT
TIMOTHY JAMES McVEIGH
CERTIFICATE OF HAND DELIVERY
This is to certify that on the 25 day of March, 1997, a true and correct
copy of the above and foregoing PETITION FOR WRIT OF MANDAMUS OF
TIMOTHY JAMES McVEIGH, AND BRIEF IN SUPPORT was hand delivered to:
Joseph H. Hartzler, Esquire
Sean Connelly, Esquire
Special Attorneys to the U.S. Attorney General
U.S. Department of Justice
1961 Stout Street, Suite 1200
Denver, Colorado 80294
Michael Tigar, Esquire
Ronald G. Woods, Esquire
N. Reid Neureiter, Esquire
Adam Thurschwell, Esquire
1120 Lincoln, Suite 1308
Denver, Colorado 80203
The Honorable Richard P. Matsch
c/o Jim Manspeaker, Federal District Court Clerk
140 U.S. Courthouse
1929 Stout Street
Denver, Colorado 80294