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Don't forget about the importance of the family. It begins with the family. We're not going to redefine the family. Everybody knows the definition of the family. [Meaningful pause] A child. [Meaningful pause] A mother. [Meaningful pause] A father. There are other arrangements of the family, but that is a family and family values. I've been very blessed with wonderful parents and a wonderful family, and I am proud of my family. Anybody turns to their family. I have a very good family. I'm very fortunate to have a very good family. I believe very strongly in the family. It's one of the things we have in our platform, is to talk about it. I suppose three important things certainly come to my mind that we want to say thank you. The first would be our family. Your family, my family -- which is composed of an immediate family of a wife and three children, a larger family with grandparents and aunts and uncles. We all have our family, whichever that may be ... The very beginnings of civilization, the very beginnings of this country, goes back to the family. And time and time again, I'm often reminded, especially in this Presidential campaign, of the importance of a family, and what a family means to this country. And so when you pay thanks I suppose the first thing that would come to mind would be to thank the Lord for the family. -- Vice President Dan Quayle

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6/95 U.S. BRIEF IN OPPOSITION TO RELEASE OF TERRY NICHOLS denied bail

IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 95-6223

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
TERRY LYNN NICHOLS, Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

THE HONORABLE DAVID L. RUSSELL
DISTRICT JUDGE

D.C. NO. M-95-105-H

BRIEF OF PLAINTIFF-APPELLEE

PATRICK M. RYAN, United States Attorney
JOSEPH H. HARTZLER
SEAN CONNELLY, Special Assistant U.S. Attorneys
210 W. Park Avenue, Suite 400
Oklahoma City, Oklahoma 73102
Telephone (405) 231-5281

June 1995

Attorneys for Plaintiff-Appellee

TABLE OF CONTENTS

STATEMENT OF JURISDICTION.................1
QUESTION PRESENTED........................1
STATEMENT OF THE CASE.....................2
STATEMENT OF FACTS........................3
1. The Bombing Offense....................3
2. The Preliminary Examination
Finding Of Probable Cause.................8
3. The Detention Order....................9
STANDARD OF REVIEW........................9
ARGUMENT...............................10

I. RELEASING NICHOLS WOULD POSE A CLEAR
DANGER TO THE COMMUNITY AS WELL AS AN
UNREASONABLE RISK OF FLIGHT................10
A. The Nature And Circumstances Of This
Horrific Offense Strongly SupportPretrial Detention....11
B. The Courts Below Correctly Found Probable
Cause That Nichols Committed The Offense.............16
C. Nichols' History And Characteristics Favor Detention...19
D. Detention Is Warranted Given The Nature
And Seriousness of The Danger......................22

II. NICHOLS' CHALLENGES TO THE DETENTION ORDER LACK MERIT...23
A. The Court Correctly Considered The Statutory Factors.....23
B. Nichols' First Amendment Rights Were Not Violated.......26

CONCLUSION...................................29
CERTIFICATE OF SERVICE.........................29
ADDENDUM: Criminal Complaint with Affidavit

TABLE OF AUTHORITIES
Cases:
Chambers v. Mississippi, 410 U.S. 284 (1973).....24n
Dawson v. Delaware, 503 U.S. 159 (1992).......27
Faheem-El v. Klincar, 841 F.2d 712 (7th Cir. 1988)......13
Illinois v. Gates, 462 U.S. 213 (1983)............17
Sellers v. United States, 89 S. Ct. 36 (1968).............24n
Smith v. United States, 360 U.S. 1 (1959).............13n
Stack v. Boyle, 342 U.S. 1 (1951).............13
Tison v. Arizona, 481 U.S. 137 (1987)........12n
Truong Dinh Hung v. United States, 439 1326 (1978).......24n
United States v. Apker, 964 F.2d 742 (8th Cir. 1992)......16
United States v. Bishop, 555 F.2d 771 (10th Cir. 1977).....24
United States v. El-Gabrowny, 35 F.3d 63 (2d Cir. 1994)......12
United States v. Gebro, 948 F.2d 1118..........16
United States v. Gomez, 810 F.2d 947 (10th Cir.)
cert. denied, 482 U.S. 902 (1987)................18
United States v. Hooks, 780 F.2d 1526 (10th Cir.),
cert. denied, 475 U.S. 1128 (1986)............17
United States v. Jackson, 823 F.2d 4 (2d Cir. 1987).....10
United States v. Jackson, 845 F.2d 1262 (5th Cir. 1988)...10
United States v. Johnson, _F.3d_, 1995
WL 353174 (10th Cir. June 13, 1995).........17
United States v. Jones, 44 F.3d 860 (10th Cir. 1995)....19, 20
United States v. Kennedy, 618 F.2d 557 (9th Cir. 1980)...13n
United States v. Kostadinov, 721 F.2d 411 (2d Cir. 1983)...13n
United States v. Lambert, 46 F.3d 1064 (10th Cir. 1995)....18n
United States v. Millan, 4 F.3d 1038 (2d Cir. 1993).....25
United States v. Miller, 625 F. Supp. 513 (D. Kan. 1985)..24n
United States v. O'Brien, 895 F.2d 810 (1st Cir. 1990).....24n
United States v. Orena, 986 F.2d 628 (2d Cir. 1993)....25, 26
United States v. Overstreet, 40 F.3d 1090 (10th Cir. 1994)
cert. denied, 115 S. Ct. 1970 (1995)......................15n
United States v. Patriarca, 948 F.2d 789 (1st Cir. 1991)...24n
United States v. Ramirez, 843 F.2d 255............10
United States v. Remigio, 767 F.2d 730 (7th Cir. 1988)
cert. denied, 474 U.S. 1009 (1985)........................18n
United States v. Salerno, 481 U.S. 739 (10th Cir.)
United States v. Stewart, 872 F.2d 957 (10th Cir. 1989)....18n
United States v. Stricklin, 932 F.2d 1353 (10th Cir. 1991)..9, 25
United States v. Tortora, 922 F.2d 880 (1st Cir. 1990)...25, 26
United States v. Townsend, 897 F.2d 989 (9th Cir. 1990).....25
United States v. Traitz, 807 F.2d 322 (3d Cir. 1986)....24n
United States v. Verners, 53 F.3d 291 (10th Cir. 1995)...19
United States v. Williamson, 53 F.3d 1500 (10th Cir. 1995)...19
United States v. Zamora, 784 F.2d 1025 (10th Cir. 1986)...19
Williamson v. United States, 184 F.2d 280 (2d Cir. 1950)..24n
Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993)...........27, 28

Statutes, Rules and Legislative Materials
18 U.S.C. 2.....................................2, 19
18 U.S.C. 844(f)................................2, 11, 15&n
18 U.S.C. 921(a)(3)................................15, 16
18 U.S.C. 924(c)...................................15&n
18 U.S.C. 3005.....................................15
18 U.S.C. 3142.....................................passim
18 U.S.C. 3145(c)..................................1
18 U.S.C. 3231.....................................1
18 U.S.C. 3591(a)(2)...............................12n
28 U.S.C. 1291.....................................1
Fed. R. Crim. P. 5.1(a)............................9
Act of Sept. 24, 1789, ch. 20, 1 Stat. 91.........13
Pub. L. No. 89-465, 3(a), 80 Stat. 214,215-216 (1966)
(formerly codified at 18 U.S.C. 3148 (1982)).......14
S. Rep. No. 225, 98th Cong., 1st Sess., reprinted
in 1984 U.S. Code Cong. & Ad. News 3182........11, 14, 16, 23

Other
John Mitchell, Bail Reform and the
Constitutionality of Pretrial Detention,
55 Va. L. Rev. 1223, 1230 (1969).................... 14n
Laurence Tribe, An Ounce of Detention:
Preventive Detention in the World of John
Mitchell, 56 Va. L. Rev. 370, 377(1970)................14n
Webster's II New Riverside University Dictionary (1994).....22

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

No. 95-6223

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRY LYNN NICHOLS,
Defendant-Appellant.

BRIEF OF THE UNITED STATES IN OPPOSITION TO RELEASE OF TERRY LYNN NICHOLS

STATEMENT OF JURISDICTION

The district court has jurisdiction pursuant to 18 U.S.C. 3231, as Terry Lynn Nichols stands charged in a federal criminal complaint with an offense against the United States. On June 6, 1995, the district court filed a written order that Nichols be detained pending trial. R. 35. Nichols timely noticed his appeal from this order on June 13, 1995. R. 51. This Court has jurisdiction pursuant to 18 U.S.C. 3145(c), and 28 U.S.C. 1291.

QUESTION PRESENTED

Whether the district court properly denied bail to a defendant charged in connection with the Oklahoma City bombing, based on findings that he poses a danger to the community and an unreasonable risk of flight against which no conditions of release could adequately guard.

STATEMENT OF THE CASE

A criminal complaint, filed on May 9, 1995 in the United States District Court for the Western District of Oklahoma, charges Terry Lynn Nichols with maliciously damaging a federal building by means of an explosive device, in violation of 18 U.S.C. 844(f) and 2. R. 1. On May 18, 1995, after a preliminary examination, United States Magistrate Judge Ronald L. Howland found probable cause to believe that Nichols had committed the bombing, and ordered him held pending grand jury action. R. 18; Tr. 5/18/95. Nichols did not object to continuation of the previously-ordered detention (R. 10) pending his filing of a formal motion for release and the government's response.

Nichols' release motion and supporting papers were filed on May 25, 1995. R. 22-24. The government's response was filed on June 1, 1995. R. 27. Nichols replied on June 2, 1995. R. 31. On June 2, 1995, a hearing was held before Chief United States District Judge David L. Russell. R. 40. No additional testimony was presented at this hearing. The court had before it the testimony from the preliminary hearing, as well as the materials filed and proffered by the parties.

At the close of the detention hearing, and by written order filed June 6, 1995, the district court ordered that Nichols be detained pending trial. R. 35. Nichols timely noticed his appeal from this order on June 13, 1995. R. 51.

STATEMENT OF FACTS

1. The Bombing Offense.

The facts of the underlying crime were set out in the criminal complaint affidavit of FBI Special Agent Henry C. Gibbons, and in the preliminary examination testimony of FBI Special Agent Errol Myers. The government brought out on direct examination the fact that Nichols may not have been in Oklahoma City on the day of the bombing, and it detailed the evidence that Nichols had aided and abetted that bombing. See Transcript of Preliminary Examination held 5/18/95 (Exhibit D to Nichols' Appendix) ("PE Tr.") at 7-30. [FN1]

Shortly after 9:00 a.m. on April 19, 1995, a massive explosive device was detonated from a Ryder truck parked outside the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 persons and injuring many others. The FBI laboratory in Washington determined that the Oklahoma City bomb was made of fertilizer, such as ammonium nitrate, and fuel oil. Blue plastic fragments were found embedded at the bomb scene in a manner that led the FBI laboratory to conclude that the fertilizer-fuel oil mixture was contained in barrels. Other ingredients include a booster, detonator cord and non-electric blasting caps. Order 5/6/95 at 2-3 (Exhibit B to Nichols' Appendix); Gibbons Aff. 2, 13, 14b (Addendum hereto); PE Tr. at 11-12, 19-20, 42-43.

The FBI determined, from a partial vehicle identification number (VIN) found at the scene, from a license plate, and from information provided by Ryder officials, that the truck in question was assigned to a Junction City, Kansas, rental company known as Elliott's Body Shop. An Elliott's employee advised the FBI that the truck had been rented on April 17, 1995, by an individual identifying himself as Bob Kling. "Kling," using what the FBI later determined was a phony social security number, South Dakota driver's license number, and Nebraska home address, claimed he would be driving the truck to Omaha. An Elliott's employee identified McVeigh from a photographic array as the person who in fact rented the Ryder truck and signed the agreement. Gibbons Aff. 2-5: PE Tr. at 9-11.

On April 21, 1995, federal investigators learned that McVeigh had been arrested on April 19, 1995, for traffic and weapons offenses in Noble County, Oklahoma, some 60-70 miles north of Oklahoma City. McVeigh's arrest occurred approximately 80 minutes after the bombing. McVeigh listed his address as a Decker, Michigan, farm owned by Nichols' brother James. He also used James Nichols as a reference. Gibbons Aff. 9.

On April 21, 1995, after hearing his name on the radio, Terry Nichols reported to the Department of Safety in Herington, Kansas, where FBI agents questioned him. After being advised of and waiving his Miranda rights, Nichols denied any involvement in or knowledge of the bombing, but he made several admissions, including that: he knew McVeigh from the Army; the two of them had occasionally lived together in Kansas and Michigan and had sold military surplus and weapons together at gun shows throughout the United States; he had driven to Oklahoma City on Easter Sunday, April 16, 1995 (three days before the bombing), to pick up McVeigh; he had lied to his wife by telling her he was going to Omaha, Nebraska, rather than to Oklahoma City; and he loaned McVeigh his 1984 GMC half-ton diesel pickup on April 18, 1995 (the day before the bombing) for five hours while allegedly attending an auction. Nichols further admitted knowing how to make a bomb by blending ammonium nitrate with diesel fuel, which could be detonated by cord and blasting caps. Moreover, Nichols admitted having ammonium nitrate at his residence until Friday, April 21, 1995, when he placed it on his yard as fertilizer after reading in newspapers that ammonium nitrate had been used in the Oklahoma City bombing. Gibbons Aff. 13; PE Tr. 12-17, 36.

Federal agents then searched Nichols' Herington, Kansas, residence and his dark blue 1984 GMC pickup truck with a white camper shell. Among other things seized from his residence were: five primadet cords with non-electric blasting caps, of a type that could be used to detonate a fertilizer-fuel oil bomb; four white barrels with blue lids made from material resembling blue plastic fragments found at the Oklahoma City bomb scene; [FN2] and several containers of ground ammonium nitrate, a substance that can be used as a booster for a fertilizer-fuel bomb. Nichols previously had expressed hope that the agents "would not mistake household items" for bomb-producing materials, noting in particular his several containers of ground ammonium nitrate, which he purportedly sold as plant food fertilizer at gun shows. Gibbons Aff. 13g, 14; PE Tr. 17-20.

The search of Nichols' residence, as well as other investigation, revealed evidence linking Nichols and McVeigh to large purchases of ammonium nitrate and to storage lockers rented under false names. For example, on September 30, 1994, the Mid- Kansas Cooperative Association sold 2,000 pounds of 34-0-0 ammonium nitrate fertilizer (in 40 50-pound bags) to a "Mike Havens." A receipt for that purchase, bearing a fingerprint of McVeigh, was found in Nichols' residence. On September 22, 1994, just over a week before this large ammonium nitrate purchase, someone using the name "Shawn Rivers" rented a storage unit ("Unit #2") in Herington, Kansas. Nichols admitted during his FBI interview that he had picked up items, including a rifle, from Unit #2 on April 20, 1995 (the day after the bombing and before McVeigh had been identified as a suspect), pursuant to McVeigh's request of two days earlier. Gibbons Aff. 13d, 14d, 15, 18; PE Tr. at 16, 20-23. [FN3]

On October 18, 1994, the Mid-Kansas Cooperative Association sold another 2,000 pounds of 34-0-0 ammonium nitrate fertilizer (again in 40 50-pound bags) to a "Mike Havens," who was driving a dark-colored pickup with a light camper shell. The day before this purchase, on October 17, 1994, a "Joe Kyle" rented a storage unit ("Unit #40") in Council Grove, Kansas. A document with the location of this storage unit and the name "Joe Kyle" was found in Nichols' residence. A receipt for still another storage locker, Council Grove Unit #37 rented by a "Ted Parker" on November 7, 1994, was also found in Nichols' residence. Nichols admitted in his FBI interview that he had rented storage lockers in Kansas as well as Nevada. Gibbons Aff. 13i, 16, 19-20; PE Tr. at 18-24.

Nichols wrote a letter to McVeigh on or about November 22, 1994, when Nichols was leaving to visit the Philippines, stating that McVeigh would receive it only in the event of Nichols' death. The letter stated that McVeigh should "clear everything out of CG 37" and "also liquidate 40." Nichols further wrote in this letter, intended for delivery only if he died, that McVeigh was on his own and should "Go for it!!" Gibbons Aff. 21-22; PE Tr. 24-25.

Records from the Dreamland Motel in Junction City, Kansas, show that McVeigh was registered there in his own name from April 14-18, 1995. On April 15, someone named "Kling," the identity used by the person who rented the Ryder truck on April 17, placed an order from McVeigh's room to a local Chinese restaurant. Also on April 15, and again the next day, Nichols purchased diesel fuel: 14 gallons on April 15 and 21 gallons on April 16. Nichols claimed in his FBI interview that the April 16 purchase had fueled his trip to Oklahoma City. Gibbons Aff. 23-24; PE Tr. 25-27, 43-44.

On April 17, 1995, a call was placed from McVeigh's room at the Dreamland to Nichols' Herington residence. During the evening of April 17, the date "Kling" rented the truck used in the bombing, a Ryder truck was seen behind Nichols' residence at a time when there are indications Nichols and his family were out to dinner. A Ryder truck and a dark, older pickup truck were also seen backed up near Herington Unit #2 at different times on April 17 or 18, 1995. Finally, on April 18, 1995, witnesses reported seeing a Ryder truck parked next to a pickup truck (described as a dark blue or brown 1980-1987 Chevrolet or GMC truck with something white, possibly a camper shell, on back) for several hours at Geary State Fishing Lake, which is about six miles south of Junction City. The FBI's later examination of this area revealed vegetation that had been killed. There was a distinct odor of diesel fuel in the area and soil samples indicated the presence of fuel oil. Gibbons Aff. 25-30; PE Tr. 27-29.

2. The Preliminary Examination Finding Of Probable Cause.

At the conclusion of the preliminary examination hearing, Magistrate Judge Howland found probable cause to believe that Nichols had aided and abetted McVeigh in the bombing. PE Tr. 96-100. The magistrate judge explained that he had examined the evidence "cumulative[ly]" and that, notwithstanding possible "innocent" explanations for each individual circumstance, there was "evidence of commission of the crime in connection with" the overall dealings between Nichols and McVeigh. Id. at 99. Accordingly, Nichols was held to answer in the district court. R. 18; see Fed. R. Crim. P. 5.1(a). An indictment must be returned against him on or before August 11, 1995. See Order 6/16/95.

3. The Detention Order.

On June 2, 1995, at the close of the detention hearing, Chief Judge Russell orally ordered Nichols' continued detention without bail. Tr. 6/2/95 at 45-48. The court issued its written findings and conclusions in a 17-page memorandum order filed on June 6, 1995. R. 35: Order 6/6/95. The court's opinion analyzed the statutory factors set forth in 18 U.S.C. 3142(g)(1-4). R. 35 at 4-11. The court concluded that Nichols was both a flight risk and a danger to the community. Id. at 12-16.

STANDARD OF REVIEW

"Appellate review of detention or release orders is independent as to mixed questions of law and fact and independent, with due deference to the district court's purely factual findings." United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991)

ARGUMENT

I. RELEASING NICHOLS WOULD POSE A CLEAR DANGER TO THE COMMUNITY AS WELL AS AN UNREASONABLE RISK OF FLIGHT.

Section 3142(e) requires pretrial detention where a "judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." Detention is mandated under this statute where a defendant poses either a danger to the community or a flight risk; both elements need not be present. Compare United States v. Ramirez, 843 F.2d 256, 257 (7th Cir. 1988) with United States v. Jackson, 823 F.2d 4, 8 (2d Cir. 1987); see generally United States v. Salerno, 481 U.S. 739 (1987). A finding of dangerousness must be supported by clear and convincing evidence, whereas a finding of flight risk need only be supported by a preponderance of the evidence. See Order 6/6/95 at 3 (citing 18 U.S.C. 3142(f); and case law thereunder).

Congress has enumerated, in 18 U.S.C. 3142(g), "[f]actors to be considered" in bail cases: "(1) the nature and seriousness of the offense ...; (2) the weight of the evidence against the person; (3) the history and characteristics of the person...; and (4) "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." Because these factors bear on both dangerousness and flight risk, the same evidence typically is used to prove both. See United States v. Jackson, 845 F.2d 1262, 1264 n.3 (5th Cir. 1988). As discussed below, these factors indicate that Terry Nichols was properly detained as both a flight risk and as a danger to the community.

A. The Nature And Circumstances Of This Horrific Offense Strongly Support Pretrial Detention.

The initial statutory factors are "the nature and circumstances of the offense charged, including whether the offense is a crime of violence ...." 18 U.S.C. 3142(g)(1). Congress intended pretrial detention for "those offenses which comprise the greatest risk to community safety." S. Rep. No. 225, 98th Cong., 1st Sess. 21, reprinted at 1984 U.S. Code Cong. & Ad. News 3204. There has never, in the years since the passage of the Bail Reform Act of 1984 or, indeed, in the history of American jurisprudence, been a more serious and violent offense than this one. See Order 6/6/95 at 10 (offense is "the most devastating bombing -- in terms of loss of lives -- in the peacetime history of this country").

The seriousness of the offense is underscored by the legislative judgment that the crime should carry the most severe of all possible penalties. See 18 U.S.C. 844(f) (offender "shall be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment"). The Supreme Court decision upholding the pretrial detention of dangerous offenders notes that historically courts could "refuse bail in capital cases." Salerno, 481 U.S. at 753. Justice Marshall's dissenting opinion in that case explained that "this of course is so, for it has been the considered presumption of generations of judges that a defendant in danger of execution has an extremely strong incentive to flee." Id. at 765 n.6. Thus, the fact that this is a capital offense supports findings that Nichols is both a danger to the community and a flight risk. Indeed, in the most serious bombing case before this one, a case in which the death penalty was not available, the Second Circuit cited the severity of the possible non-capital penalty as a basis for finding flight risk and the seriousness of the charges as a basis for finding dangerousness. United States v. El-Gabrowny, 35 F.3d 63, 65 (2d Cir. 1994) (World Trade Center bombing defendant's "prospect" of lengthy prison term "[i]f convicted" provides "him a great incentive to flee"; in addition, the charges were "extraordinarily serious and indicate a grand jury finding of a high degree of dangerousness").

Nichols argues against the significance of the fact that this is a capital case, claiming that there is no "evidence that this realistically is such a case as to Mr. Nichols" and that "[t]he government has not made an election whether to seek the death penalty." Br. 26-27. As to the first point, a defendant legally responsible for a bombing that caused the deaths of 168 victims-- and there is probable cause to believe that Nichols is responsible (see infra Part I(B)) -- is statutorily and constitutionally eligible for the death penalty. [FN4] More importantly, whether or not Nichols ultimately is sentenced to die, and indeed whether or not the government even seeks that penalty, the legislative judgment that this is among the most serious of offenses remains highly relevant in deciding whether Nichols should be freed on bail. [FN5]

Nichols misses the point in arguing that "capital crimes have been bailable under American law since the Act of Sept. 24, 1789, ch. 20, 1 Stat. 91." Br. 27. We do not claim, and the district court certainly did not hold, that there is an absolute bar to bailing capital defendants. But cf. Faheem-El v. Klincar, 841 F.2d 712, 718 (7th Cir. 1988) ("capital crimes have traditionally been nonbailable"). Nonetheless, the fact that a defendant is charged with a capital offense has throughout American history been deemed a basis for denying bail. It is significant, therefore, that the Judiciary Act of 1789, which Nichols cites for his historical point, expressly distinguished between capital and non-capital offenses. See Stack v. Boyle, 342 U.S. 1, 4 (1951). This distinction was retained and expanded upon in later federal bail statutes and rules on up through the Bail Reform Act of 1984. For example, the bail statute enacted in 1966 and in effect until 1984 allowed capital defendants, but not non-capital ones, to be detained on account of their dangerousness. Pub. L. No. 89-465, 3(a), 80 Stat. 214, 215-216 (1966) (formerly codified at 18 U.S.C. 3148 (1982)).

The Supreme Court's opinion in Salerno indicates that pretrial detention of capital defendants serves both to incapacitate potentially dangerous persons and to guard against an unreasonable risk of flight. Compare 481 U.S. at 753 (noting, in upholding pretrial detention of dangerous offenders, that historically courts could "refuse bail in capital cases") with id. at 765 n.6 (Marshall, J., dissenting) (agreeing that "this of course is so" but not because capital defendants are dangerous but rather because "it has been the considered presumption of generations of judges that a defendant in danger of execution has an extremely strong incentive to flee"). [FN6] The fact that this is a violent capital offense is thus highly relevant to evaluating "the nature and circumstances of the offense charged, including whether the offense is a crime of violence ...." 18 U.S.C. 3142(g)(1). Congress has imposed pretrial detention for "those offenses which comprise the greatest risk to community safety" (S. Rep. No. 225, supra, at 21, reprinted at 1984 U.S. Code Cong. & Ad. News 3204), and no offense can be more serious than one carrying the most severe punishment under law. Indeed, while Congress has never erected an absolute bar to bailing capital defendants, it did enact legislation in 1994 guaranteeing counsel for capital defendants "free access to the accused at all reasonable hours" (18 U.S.C. 3005) -- a provision that would be unnecessary if capital defendants were released.

In addition, though the district court found it "unnecessary" to consider this point (Order 6/6/95 at 14 n. 3), there is a rebuttable statutory "presum[ption] that no condition or combination of conditions will reasonably assure the appearance of the person as required ... if the judicial officer finds there is probable cause to believe that the person committed ... an offense under section 924(c) of title 18 of the United States Code." 18 U.S.C. 3142 (e). The complaint cites only 18 U.S.C. 844 (f), but Nichols' counsel conceded that section 924(c) was "completely subsumed within" section 844 (f). Tr. 6/2/95 at 35. [FN7]

The nature and circumstances of the offense charged strongly favor detention, given that this case involves the worst terrorist crime in the peacetime history of the United States, that Congress has established the death penalty as a possible punishment, and that there exists a statutory presumption against bail. The Bail Reform Act, reflecting congressional "concern for the safety and indeed the lives of [American] citizens" (Salerno, 481 U.S. at 755), would be but empty rhetoric if Nichols were not detained.

B. The Courts Below Correctly Found Probable Cause That Nichols Committed The Offense.

Congress has also directed courts to consider "the weight of the evidence against the person" (18 U.S.C. 3142(g)(2)), although this factor is the least important of the statutory factors. See, e.g., United States v. Apker, 964 F.2d 742, 744 (8th Cir. 1992); United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991). Congress rejected "as a precondition of pretrial detention, a finding that there is a 'substantial probability' that the defendant committed the offense for which he is charged." S. Rep. No. 225, supra, at 18, reprinted at 1984 U.S. Code Cong. & Ad. News 3201. Instead, Congress was "satisfied that the fact that the judicial officer has to find probable cause will assure the validity of the charges against the defendant." Id.

The district court carefully examined the evidence of Nichols' complicity with McVeigh in the steps leading to the bombing. The court discussed the evidence indicating that Nichols and McVeigh had used aliases to purchase 4,000 pounds of ammonium nitrate and to rent various storage lockers at around the same time. Nichols admittedly knew how to make an ammonium nitrate and fuel oil bomb, had been in Oklahoma City with McVeigh three days before the bombing, and had cleaned out a storage unit at McVeigh's request on the day after the bombing. Also, Nichols' home contained many items that could be used in assembling a fertilizer-fuel oil bomb, including five 60-foot primadet cords with non-electric blasting caps, several containers of ground ammonium nitrate, and four white barrels with blue lids made from material resembling fragments found at the Oklahoma City bomb scene. See Order 6/6/95 at 4-9.

Nichols, arguing that "[c]ircumstantial evidence can point to innocence or guilt, depending on one's viewpoint," claims that the district court erred in not crediting Nichols' alleged "ample justification for his conduct." Br. 12. This argument would lack force even in the context of review from a guilty finding at trial, where the government must prove the offense beyond a reasonable doubt. See United States v. Johnson, _F.3d_, 1995 WL 353174 *3 (10th Cir. June 13, 1995) ("The fact that the evidence may also be consistent with a hypothesis of innocence, however, does not require reversal where there is sufficient evidence to support a guilty inference as well") (citing United States v. Hooks, 780 F.2d 1526, 1530 (10th Cir.), cert. denied, 475 U.S. 1128 (1986)). It is entirely misplaced in challenging a probable cause finding. See Illinois v. Gates, 462 U.S. 213, 245 n.13 (1983) ("In making a determination of probable cause the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of non-criminal acts").

Not only do Nichols' jury arguments regarding the allegedly innocent explanations for his acts come too soon, they are also unpersuasive. For example, Nichols alleges a "falling out with McVeigh" (Br. 12), but his acts immediately before and after the bombing -- including driving to Oklahoma City at McVeigh's behest on April 16, lending McVeigh his camper on April 18, and cleaning out a storage locker for McVeigh on April 20 -- refute such a claim. And, in claiming that no "sinister meaning" should have been drawn from his use of aliases to rent storage lockers, Nichols argues that "[p]eople permissibly use other names for many reasons -- from Leonard Sly (Roy Rogers), to Marion Morrison (John Wayne) to Gary Hartpence (Gary Hart)." Br. 16. It is well established, however, that use of aliases can show a consciousness of guilt relevant to establishing not only probable cause or reasonable suspicion but also proof beyond a reasonable doubt. United States v. Gomez, 810 F.2d 947, 955 (10th Cir.) ("'[g]iving a false identity is admissible as evidence of consciousness of guilt'") (quoted case omitted), cert. denied, 482 U.S. 902 (1987). [FN8]

Nichols also claims (Br. 10, 20-21) that the evidence failed to meet this Court's standards for showing that he aided and abetted McVeigh in the bombing. This argument again confuses the probable cause required at this stage of the proceedings with the proof beyond a reasonable doubt that will be required at trial. In any event, the evidence offered at the preliminary examination supported an inference that Nichols "willfully associate[d] with the criminal venture and aid[ed] such venture through affirmative action." United States v. Jones, 44 F.3d 860, 869 (10th Cir. 1995). Here, Nichols' many acts, which were critical to the bombing and which bespeak his willful intent, are of much greater significance than those that this Court has found sufficient in prior cases to qualify as the "positive action" needed under 18 U.S.C. 2. Id. at 869-870 (stating that liability may be based on an act "of 'relatively slight moment") (quoting United States v. Zamora, 784 F.2d 1025, 1031 (10th Cir. 1986)); see, e.q., United States v. Williamson, 53 F.3d 1500 (10th Cir. 1995) (defendant's presence in car during drug sale and her counting the buy money when asked to do so by the seller supported drug conviction); United States v. Verners, 53 F.3d 291 (10th Cir. 1995) (mother's knowledge that son kept drugs in home, coupled with the fact that she apparently benefited from "nice furnishings" and home improvements purchased with cash, was enough to convict her of aiding and abetting simple drug possession).

C. Nichols' History And Characteristics Favor Detention.

The next statutory considerations are "the history and characteristics of the person, including the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning court appearances" and whether the person had outstanding criminal matters at the time of the offense. 18 U.S.C. 3142(g)(3). Even the most stable background could not justify release given the probable cause finding that Nichols bears legal responsibility for a crime of this unprecedented horror. In any event, Nichols' background is anything but stable.

Nichols has no roots in a community or record of steady employment, but instead has traveled around the country to gun shows while residing intermittently since 1993 in Michigan, Nevada, Kansas and the Philippines. See Order 6/6/95 at 9. Nichols has also used aliases in renting storage lockers. Id. Far from having demonstrated community roots, Nichols repeatedly has disclaimed any roots to this country and its sovereign states. For example, in a 1992 letter to Michigan authorities, Nichols wrote:

... I no longer am a citizen of the corrupt political corporate state of Michigan and the United States of America. (The current states of the forum.) I am a "Non Resident Alien" to the State of Michigan and the United States of America. I am a natural born human being born in the area you call Michigan not the corporate State of Michigan. Not being part of the corporate system of the State of Michigan I do not need to obtain any of the State's privileges (licenses). Therefore, I am not under the jurisdiction of the corporate State of Michigan.

R. 27: Gov't Brief Opposing Release, Addendum A-1 (included as Exhibit C to Nichols' Appendix).

Similarly, Nichols wrote a 1994 letter to the Internal Revenue Service in which he claimed to be "a non-privileged 'natural born free citizen' of the United States of America, and thus [] not subject to withholding" taxes. Id. A-2. Nichols also submitted to the IRS an affidavit claiming that he was "by Law as 'Foreign' and 'Non-Resident Alien' to the Article 1:8:17-18's Washington, D.C., as to another country ...." Id. A-3 There is, accordingly, no basis for believing that Nichols would comply with the release conditions proposed by defense counsel. See Br. 2 The law does not allow such an unfounded leap of faith in a defendant who has consistently expressed a refusal to recognize government authority.

Nichols' familial ties are further reduced by the fact that "[h]is current wife [Marife] has returned to the Philippines, of which she is a citizen." Order 6/6/95 at 9-10. We note in this respect that Nichols reiterates his false assertions that Marife Nichols was "held incommunicado" and in "captivity" before she voluntarily returned to the Philippines. See Br. 11, 15. In fact, the government represented to the district court that at no time was Marife Nichols held against her will. See R. 49 at 4. There were significant concerns regarding the safety of Marife Nichols; among others, a concern that violent individuals might seek revenge against Terry Nichols for the bombing of the Murrah Federal Building through attacks on his wife. Id. Judging from Marife Nichols' comments to the media, she recognized this danger. See USA Today, May 31, 1995, at 3A (quoting Marife Nichols: "You don't know how many people want to get revenge on Terry and Tim (McVeigh) through me. I'm paranoid right now"). When asked directly by the district court whether Marife Nichols was ever held "against her will," defense counsel responded that "[t]he only evidence we have of against her will, Your Honor, and I make this as a proffer, is": 1) "[O]n the Monday before the preliminary hearing, she called [co-counsel's] office and left a message saying that she wished to speak with [him] but that she was being prevented by the agents holding her from providing a telephone number"; 2) "I called" the U.S. Attorney who "called back several hours later and we did get a phone number for her" and "[a]fter a day-and-a-half [co-counsel] was finally able to see Mrs. Nichols"; and 3) "the circumstances of her being moved from place to place leaves it a fair inference that she was not free or did not feel free to leave; whether because she had some apprehension about her safety or whatever, I can't tell the Court." Tr. 6/2/95 at 8-9 (emphasis added). Counsel's own admissions that Marife contacted and met with the defense refute his claim that she was held "incommunicado": i.e., "[w]ithout the right or means of communicating with others, as one held in solitary confinement." Webster's II New Riverside University Dictionary 619 (1994). Nor was counsel able even to proffer any evidence, apart from sheer speculation, that Marife was held against her will. Counsel's false claims regarding Marife's alleged "captivity" do not become true simply through repetition.

D. Detention Is Warranted Given The Nature And Seriousness of The Danger.

The final statutory considerations are "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. 3142(g)(4). There has never been a crime more devastating to a community than the one for which Nichols stands charged. One capable of such a crime should not be given any opportunity to inflict further harm.

II. NICHOLS' CHALLENGES TO THE DETENTION ORDER LACK MERIT.

A. The Court Correctly Considered The Statutory Factors.

Nichols charges (Br. 23, 26) that "the district judge's findings are entirely backward-looking, and thus violate the Bail Reform Act." The district court's analysis, however, directly tracked each of the "factors" set forth in the 18 U.S.C. 3142(g)(1)-(4). Order 6/6/95 at 3-11. The court's ultimate findings regarding flight risk and danger turned on its careful balancing of these statutory factors. See id. at 12-16.

Nichols' complaint about "backward-looking" analysis is thus an attack on the statutory scheme enacted by Congress in the Bail Reform Act. While the ultimate issues are whether a defendant poses a future risk of flight or danger, Congress recognized that such judgments must be based in large measure on a defendant's past history. As the Senate report explained, "the presence of certain combinations of offense and offender characteristics, such as the nature and seriousness of the offense charged, the extent of prior arrests and convictions, and a history of drug addiction, have been shown in studies to have a strong positive relationship to predicting the probability that a defendant will commit a new offense on release." S. Rep. No. 225, supra, at 9, reprinted at 1984 U.S. Code Cong. & Ad. News 3192. Especially unavailing, therefore, is Nichols' claim that "[t]he crime charged cannot be the measure" (Br. 26). The very first statutory factors are "the nature and circumstances of the offense charged, including whether the offense is a crime of violence ...." 18 U.S.C. 3142(g)(1).

Nichols also criticizes the district court for not analyzing what, in Nichols' view, are the "leading cases on bail." Br. 6-9. These "leading cases," however, bear little similarity to this one. The most obvious distinction is that none involved a bombing offense, much less an offense resulting in 168 deaths. [FN9] While Nichols claims (Br. 21) that docket entries will reflect that the defendant in a "major bombing case[]" was granted bail pending appeal in United States v. Bishop, 555 F.2d 771 (10th Cir. 1977), the bombing there apparently caused no deaths and the defendant had received only a seven-year sentence. Most importantly, Bishop preceded the Bail Reform Act of 1984 and did not even discuss bail.

Nichols argues that the court safely could have released him by imposing the condition that he be subject to "electronic monitoring." Br. 24-25. Electronic monitoring, however, cannot protect against dangerous defendants, and its utility in protecting against flight is dubious as well. See, e.g., United States v. Tortora, 922 F.2d 880, 887 (1st Cir. 1990) ("electronic monitoring, while valuable in pretrial release cases (especially in allowing early detection of possible flight), cannot be expected to prevent a defendant from committing crimes or deter him from participating in felonious activity within the monitoring radius"); United States v. Townsend, 897 F.2d 989, 994-995 (9th Cir. 1990) ("Nor does the wearing of an electronic device offer assurance against flight occurring before measures can be taken to prevent a detected departure from the jurisdiction"). In any event, "electronic surveillance systems can be circumvented ... and electronic monitoring equipment can be rendered inoperative." United States v. Orena, 986 F.2d 628, 632 (2d Cir. 1993). At bottom, "[h]ome detention and electronic monitoring at best elaborately replicate a detention facility without the confidence of security such a facility instills." United States v. Millan, 4 F.3d 1038, 1049 (2d Cir. 1993) (internal quotations omitted). Accordingly, in United States v. Stricklin, 932 F.2d 1353, 1354 (10th Cir. 1991), this Court reversed a bail order and ordered detention, even though the conditions of release had included "electronic monitoring." See id. at 1355 (finding that "no conditions of release would assure defendant's appearance and the safety of the community").

Nichols seeks to compensate for the drawbacks of electronic monitoring by "propos[ing] other limits in addition to the monitor, that would guard against equipment failure -- such as surveillance by government agents." Br. 25. No doubt most defendants could be released if "agents [were] posted by the government to watch [them] at all times" and to "otherwise act as private jailers." Tortora, 922 F.2d at 887. The Bail Reform Act, however, cannot be construed to require such surveillance. Id. at 887-888. Nichols makes the dubious assertion that it would be less expensive to release him with surveillance than to keep him detained. Br. 25. But "[q]uite apart from considerations of cost ..., adequate staffing of home detention centers can[not] be accomplished without extensive training both of the monitoring staff and their supervisors, activities not contemplated by the Bail Reform Act." Orena, 986 F.2d at 633. The federal criminal justice system established by Congress assigns detention functions to the Bureau of Prisons and investigative functions to the Federal Bureau of Investigation and other agencies. Nichols is not entitled to make the FBI his own "private jailers." Tortora, 922 F.2d at 887.

B. Nichols' First Amendment Rights Were Not Violated.

Nichols argues strenuously that the district court engaged in "a frontal assault on the first amendment" based on his "protected political views." Br. 19-24. Nichols' detention, however, has nothing to do with his political views. Instead, Nichols is detained because there is probable cause to believe he aided and abetted a crime of unprecedented violence. The court was entirely justified, in deciding whether Nichols could be trusted to obey conditions of release, in considering letters in which Nichols refused to accept the validity of state and federal laws. See Order 6/6/95 at 12, 14-15. Nichols' argument thus lacks merit, and is also beside the point, as the district court stated expressly that its determination would be the same "even when the facts [pertaining to Nichols' views] are disregarded." Id. at 15.

The Supreme Court has made clear that "[t]he First Amendment ... does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent." Wisconsin v. Mitchell, 113 S. Ct. 2194, 2201 (1993). On the contrary, "[e]vidence of a defendant's previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like." Id. See also Dawson v. Delaware, 503 U.S. 159, 165 (1992) (holding defendant's membership in white supremacist gang irrelevant under circumstances of case, but emphasizing that "the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment"). Under Mitchell and Dawson, as applied to the bail context, a defendant who told the world that he wanted to leave for Cuba at the first opportunity could not be punished for that view, but he certainly could be detained if that statement and any other evidence showed him to be a flight risk.

Contrary to Nichols' argument, the district court's analysis would not "result in wholesale incarceration of many Americans in our part of the country" who have expressed disagreement with government policies (Br. 19-20). Nichols was detained not because of his political views but rather because there is probable cause for believing him responsible for the most lethal act of terrorism to occur on American soil. Cf. Wisconsin v. Mitchell, 113 S. Ct. at 2199 ("a physical assault is not by any stretch of the imagination protected by the First Amendment"). Given such probable cause, Nichols' past refusals to acknowledge government authority were properly considered as factors bearing on whether he can be trusted to comply with court-ordered conditions of release.

CONCLUSION

For the above reasons, Nichols poses a danger to the community and an unreasonable risk of flight against which no conditions of release could adequately guard. Accordingly, this Court should affirm the detention order.

Respectfully submitted,

PATRICK M. RYAN
United States Attorney
JOSEPH H HARTZLER
Special Assistant U.S. Attorney
ARLENE JOPLIN
JEROME HOLMES
Assistant U.S. Attorneys
/s/SEAN CONNELLY
Special Assistant U.S. Attorney

210 West Park Avenue Suite 400
Oklahoma City, Oklahoma 73102
(405) 231-5281

END NOTES

1 The facts relevant to the involvement of alleged co-conspirator Timothy J. McVeigh had previously been set forth in a complaint against McVeigh and at McVeigh's preliminary examination. A federal magistrate judge found probable cause that McVeigh committed the bombing, and ordered him detained. McVeigh has not appealed the detention order.

2 Nichols erroneously asserts that "[t]he claim that 'lids' of that description were found [in his home] was belied by the written inventory" and that Agent Myers "was unable to account for that discrepancy." Br. 18. In fact, Agent Myers testified that he had no personal knowledge of the facts but that, in his opinion, the lids would not have been separately inventoried if they were attached to the barrels. See Tr. 5/18/95 at 59.

3 Nichols overlooks paragraph 13d of the Gibbons affidavit in stating that "[t]he trial judge's finding that [he] removed a rifle from Shed No. 2 on April 20, 1995 is not based on evidence in the record. to the best of our knowledge." Br. 17.

4 See, e.q., 18 U.S.C. 3591(a)(2)(D) (death penalty may be imposed where the defendant "intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act"); Tison v. Arizona, 481 U.S. 137, 157-158 (1987) (death penalty may constitutionally be applied to those who, while not intending that a killing take place, exhibit a "reckless disregard for human life").

5 See United States v. Kostadinov, 721 F.2d 411, 412 (2d Cir. 1983) (crime is "capital" one for purposes of bail under former 18 U.S.C. 3148, "irrespective of the fact that the Government does not seek the death penalty facially available under" statute); United States v. Kennedy, 618 F.2d 557, 558 (9th Cir. 1980) (bail properly denied even though death penalty could not ultimately be imposed under Eighth Amendment, because bail "statute's purpose derives from the nature of the offense with which the defendant is charged and not from the potential severity of the punishment"). Cf. Smith v. United States, 360 U.S. 1, 8-9 (1959) ("Although the imposition of that penalty will depend on whether sufficient proof of harm is introduced during the trial, that circumstance does not alter the fact that the offense itself is one which may be punished by death" for purposes such as "bail") (dicta).

6 Prior to Salerno, commentators had debated whether such detention historically embodied considerations of dangerousness or just of flight. Compare John Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, 55 Va. L. Rev. 1223, 1230 (1969) with Laurence Tribe, An Ounce of Detention: Preventive Detention in the World of John Mitchell, 56 Va. L. Rev. 370, 377 (1970).

7 A defendant who violates section 844 (f) by means of an explosive device such as here will also have violated section 924(c), which makes it a crime -- separately chargeable and punishable from an underlying offense such as section 844 (f) -- to use a "firearm" during and in relation to a "crime of violence." Section 924(c) indisputably applies here because a "firearm" includes "any destructive device" (18 U.S.C. 921 (a)(3)), which in turn is defined to include "any explosive ... [or] incendiary ... bomb" or "similar" such device (id. (a) (4)). And, the underlying section 844 (f) offense is a "crime of violence" having "as an element the use ... of physical force against the person or property of another" (id. 924(c) (3)(A)).

Defense counsel's point regarding the offenses being "completely subsumed" was made in arguing that sections 844 (f) and 924(c) were the "same offense" for double jeopardy purposes. This argument is not only premature at the bail stage, but also legally meritless even at the sentencing stage. See United States v. Overstreet, 40 F.3d 1090, 1095 (10th Cir. 1994) ("Congress clearly expressed its intent that section 924(c)(1) apply cumulatively to all crimes of violence"), cert. denied, 115 S. Ct. 1970 (1995).

8 See also United States v. Lambert, 46 F.3d 1064, 1069-1071 (10th Cir. 1995) (discussing Supreme Court cases finding use of aliases suspicious); United States v. Stewart, 872 F.2d 957, 961 (10th Cir. 1989) (factor cited in finding sufficient evidence was that "Stewart used an alias in some of the transactions involved in the case"); United States v. Remigio, 767 F.2d 730, 733-734 (10th Cir.) (similar), cert. denied, 474 U.S. 1009 (1985).

9 The cases are distinguishable in several other respects as well. For example, in United States v. Traitz, 807 F.2d 322, 324- 326 (3d Cir. 1986), the defendants were not alleged to be flight risks and a divided Third Circuit found that they were not likely to continue violent acts because they were no longer affiliated with the union in question; the majority stressed that "[e]ach case, of course, is sui generis...." In United States v. Miller, 625 F. Supp. 513, 524-525 (D. Kan. 1985), the alleged drug dealer concededly was "not a risk of flight or danger to the community by virtue of physical violence" and "there was evidence of [his] substantial personal and financial ties to the community." In United States v. O'Brien, 895 F.2d 810, 817 (1st Cir. 1990), the court affirmed the bailing of an ex-DEA agent charged with a drug offense, stating that "the judgment is a close one" but that it would grant "some deference" to the district court's decision. In United States v. Patriarca, 948 F.2d 789 (1st Cir. 1991), the court emphasized that the facts could have supported pretrial detention (id. at 795 n.5), and it cited several factors not present here: the defendant if convicted was facing a sentence "of only five to six years"; that he had "legitimate employment as a real estate developer"; and that he "suffers from recurrent bladder cancer and requires hospitalization every three months." Id. at 792. The remaining cases cited by Nichols are not only factually distinguishable but are also legally inapposite because they predate the Bail Reform Act of 1984. See, e.q., Truong Dinh Hung v. United States, 439 U.S. 1326 (1978) (Brennan, J., as Circuit Justice); Williamson v. United States, 184 F.2d 280 (2d Cir. 1950); Sellers v. United States, 89 S. Ct. 36 (1968) (Black, J., as Circuit Justice); Chambers v. Mississippi, 410 U.S. 284 (1973).

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