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Gov't's Motion Asking For A Delay In Returning An Indictment Against Timothy Mcveigh Up To August 11, 1995

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(in order to gather and synthesize the vast amount of evidence pertaining to the case.)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

No. M-95-98-H

UNITED STATES OF AMERICA,
Plaintiff,
-vs-
TIMOTHY JAMES MCVEIGH,
Defendant.

GOVERNMENT'S MOTION FOR EXCLUDABLE TIME WITHIN WHICH TO RETURN INDICTMENT AND BRIEF IN SUPPORT

The Plaintiff, United States of America, by its attorneys, moves this Court pursuant to Local Rule 38(F)(4) for an Order granting the Government additional time within which to present the captioned cause to the Grand Jury and to file an indictment. The Government seeks authorization to file an indictment on a date not later than August 11, 1995, and requests that the additional time permitted by the Court's Order be excluded under the Speedy Trial Act, in furtherance of the ends of justice, 18 U.S.C. 3161(h)(8)(A).

FACTUAL BACKGROUND

On April 21, 1995, Defendant was charged by Complaint with a violation of 18 U.S.C. 844(f) based on the bombing of the Alfred P. Murrah Federal Building ("Oklahoma City Bombing"). On that same day (April 21), Defendant was taken into federal custody and appeared before the Honorable Ronald L. Howland, United States Magistrate Judge.

On April 27, 1995, the Court conducted the preliminary hearing and the detention hearing. It found that there was "ample and sufficient probable cause" (Tr. 4,/27/95 at 168) to believe that Defendant committed the charged offense, and it granted the Government's Motion for Detention. The Court has determined that, absent other grounds for excludable time, the Government is required to file an indictment not later than June 12, 1995.

The massive nationwide investigation aimed at establishing the guilt of those responsible for the Oklahoma City Bombing is continuing at this time. The investigation has resulted so far in the Government charging a second individual, Terry Lynn Nichols, with a violation of 18 U.S.C. 844(f) for his role in the Oklahoma City Bombing. In Nichols' preliminary hearing held on May 18, 1995, this Court found that there was probable cause to believe that Nichols was legally responsible for the bombing and committed the charged offense. (Tr. 5/18/95 at 97-100)

While the investigation has been intense and vigorous, much remains to be done. The vast amount of evidence to be gathered and analyzed makes this investigation one of extraordinary complexity. Thousands of investigative leads have been followed to their conclusion, but many remain to be pursued. As of the date of this Motion, records of more than 100,000 phone calls have been analyzed, but tens of thousands more await analysis. Agents are in the process of analyzing thousands of business records.

Moreover, forensic analyses of hundreds of pieces of evidence obtained over the life of the investigation is underway but not complete. From the bomb scene alone, approximately 7,720 pounds of evidence have been collected, which are presently being subjected to myriad chemical and physical tests designed to detect the presence of explosive residue. Frequently, six or more hours must be devoted to the testing of a single piece of bomb scene evidence. Such evidence is being subjected to gas chromatography and liquid chromatography tests, X-ray tests, and microscopic analyses, among others. In addition, fingerprinting and handwriting analyses are presently being performed on a considerable number of items.

The Government estimates that investigative functions essential to the presentment of this case to the Grand Jury will be completed within 60 days. The Government therefore moves this Court for an Order granting it until August 11, 1995 to present the captioned cause to the Grand Jury and to file an indictment.

This is the first continuance or extension sought by the Government. Its Motion for Determination of Excludable Time, filed on May 19, 1995, merely sought the Court's concurrence in the Government's calculation of the number of days that are excludable under the Speedy Trial Act. That Motion did not seek any delay. It merely sought the Court's formal recognition of the effect in this case of the excludable-time provisions of the Act. The filing of a Motion for Determination of Excludable Time is specifically authorized by Local Rule 38(F)(4).

For the reasons noted below, the requested continuance is warranted under the facts of this case and should be deemed excludable time under the Speedy Trial Act, in furtherance of the ends of justice, 18 U.S.C. 3161(h)(8)(A).

ARGUMENT

In felony criminal cases, the Speedy Trial Act ordinarily requires an indictment to be filed within 30 days from the date an individual is arrested, or served with a summons, in connection with a federal charge. See 18 U.S.C. 3161(b). Nevertheless, upon request of either party or upon their own motion, courts may grant an excludable continuance if they find that the "ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." 18 U.S.C. 3161(h)(8)(A). Courts must expressly set forth in the record their reasons for granting such a continuance. See, e.q., United States v. Pasquale, 25 F.3d 948, 952 (10th Cir. 1994); United States v. Occhipinti, 998 F.2d 791, 797 (10th Cir. 1993).

The Act enumerates certain factors that courts must consider when ruling on a motion for continuance. In seeking a continuance here, the Government relies on the third enumerated factor, which requires a court to consider

(iii) Whether, in a case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified in section 3161(b), or because the facts upon which the grand jury must base its determination are unusual or complex. 18 U.S.C. 3161(h)(8)(B)(iii).

Under the factual circumstances of the present case, it is unreasonable to expect the return of the indictment within the 30- day time frame of the Speedy Trial Act, 18 U.S.C. 3161(b). The Oklahoma City Bombing was an act of terrorism unprecedented in the history of this country. It has sparked a massive law enforcement effort that is aimed at: bringing to justice those guilty of this heinous crime.

This effort has entailed pursuing thousands of investigative leads throughout the United States related to Defendant and other possibly culpable individuals. Potential witnesses still must be interviewed and forensic analyses still must be performed. Given the magnitude of this crime and the requirements of proof, the Government should not be obligated to indict culpable individuals on a piecemeal basis. The well-known constraints on judicial and prosecutorial resources and efficiency concerns militate strongly against such a result.

It is unreasonable under these circumstances to expect the return of an indictment within 30 days. On facts far less compelling, the federal courts have reached such a conclusion. See United States v. Levia, 959 F.2d 637, 640 (7th Cir.) (fact that 30 subpoenas for financial records remained outstanding established basis for continuance), cert. denied, 113 S. Ct. 2372 (1992); United States v. McGrath, 613 F.2d 361, 366 (2d Cir. 1979) (continuance "amply justified" where agents seized two tons of marijuana and records of drug transactions), cert. denied, 446 U.S. 967 (1980).

This conclusion is supported by an examination of the legislative history of the Speedy Trial Act. In the Senate Committee Report on the 1979 Amendments to the Speedy Trial Act, the Committee specifically noted that the amendment of Subsection (h)(8)(B)(iii) was designed to clarify that an ends -of-justice continuance may be granted to "cover reasonable periods of delay during which reports from investigative agencies and evidentiary analyses from laboratories are completed." S. Rep. No. 212, 96th Cong., 1st Sess. 23 (1979).

Likewise, an excludable continuance is appropriate under Subsection (iii) because the facts upon which the Grand Jury must base its determination are unusual and complex. As noted, the Oklahoma City Bombing is a terrorist act of unprecedented dimensions. The Grand Jury will be called upon to consider the contents of numerous financial and telephone records pertaining to the criminal activities of Defendant and other possible wrongdoers, as well as the results of forensic analyses, which were performed on evidence that was retrieved from the bomb site and elsewhere. Under such circumstances, a continuance is fully justified to permit the Grand Jury to properly consider the evidence related to the bombing. See United States v. Mitchell, 723 F.2d 1040, 1043 (1st Cir. 1983) (necessity for grand jury to consider large volume of records rendered factual basis for grand jury determination unusual and complex).

Moreover, the roughly 60-day continuance period sought by the Government is hardly an inordinate amour.~ of time given the massive scope of this criminal investigation. See United States v. Marin, 7 F.3d 679, 684-85 (7th Cir. 1993) (appellate court "convinced beyond a doubt" no abuse of discretion to grant 60-day continuance so that informant could continue to assist in other investigations), cert. denied, 114 S. Ct. 739 1994); McGrath, 613 F.2d at 366 (60-day continuance "surely warranted" in drug case involving seizure of two tons of marijuana and drug records). See also United States v. Washington, 48 F.3d 73, 76 -77 (2d Cir. 1995) (45-day continuance granted in arguably routine drugs and firearms case); United States v. Drapeau, 978 F.2d 1072, 1072-73 (8th Cir. 1992) (45-day continuance granted to allow FBI to conduct serology and DNA testing on defendant's blood).

The Government has requested the same relief in the criminal proceeding against Timothy James McVeigh, who will likely be joined as a defendant in any indictment presented to the Grand Jury with regard to Defendant Nichols. Presently the speedy trial clocks for the two defendants are running at different speeds. Establishing the same deadline for the indictment of both, provided that the deadline reflects the Government's need for additional time, will help to clarify and simplify future proceedings in the two cases and will provide certainty as to the indictment deadline for both men.

CONCLUSION

For the reasons noted, the Government moves this Court for an Order granting it until August 11, 1995 to file an indictment, and excluding the additional days allowed by its Order under the Speedy Trial Act, in furtherance of the ends of justice, 18 U.S.C. 3161(h)(8)(A).

Respectfully submitted,
PATRICIA M. RYAN U.S. Attorney
JOSEPH HARTZLER Special Assistant U.S. Attorney
ARLENE JOPLIN Assistant U.S. Attorney
JEROME A. HOLMES Assistant U.S. Attorney
210 W. Park Avenue, Suite 400
Oklahoma City, Oklahoma 73102
(405) 231-5281

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