UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Richard P. Matsch
Criminal Action No. 96-CR-68-M (formerly No. 95-110 MH WDOK)
UNITED STATES OF AMERICA,
TIMOTHY JAMES McVEIGH and TERRY LYNN NICHOLS
MOTION OF THE UNITED STATES IN LIMINE REGARDING STATEMENTS OF TERRY
Supreme Court case law favors pretrial resolution of the admissibility
of a codefendant's statement. Richardson v. Marsh, 481 U.S. 200, 209
(1987) (court should be able "to predict the admissibility of [a
codefendant's statement] in advance of trial"). A motion in limine is
the procedural device for pretrial resolution of evidentiary issues
(Luce v. United States, 469 U.S. 38, 41 n.4 (1984)), including those
filed by the government seeking admission of evidence. United States v.
Kimball, 73 F.3d 269, 271 n.1 (10th Cir. 1995); United States v. Shaw,
69 F.3d 1249, 1252 (4th Cir. 1995); United States v. Pulido, 69 F.3d
192, 198-202 (7th Cir. 1995); United States v. Davis, 826 F. Supp. 617,
620 (D.R.I. 1993).
Accordingly, the United States moves pretrial for a ruling on the
admissibility of certain statements that defendant Nichols made to FBI
agents two days after the Oklahoma City bombing. The particular
statements at issue are Nichols' admissions to the FBI that he: (1)
drove McVeigh from Oklahoma City to Kansas on April 16; (2) met again
with McVeigh on the morning of April 18; and (3) cleaned out a storage
locker for McVeigh on April 20.
Because the admissibility of these statements affects the manner in
which the prosecution prepares its case, the government makes this
request well in advance of trial. Such a ruling, of course, will not
resolve all issues concerning Nichols' statement. Nor will it preempt
defendants' anticipated severance motions, although it may help narrow
the focus of those motions.
BRIEF OF THE UNITED STATES IN SUPPORT OF MOTION IN LIMINE REGARDING
TERRY NICHOLS' STATEMENTS
On April 21, 1995, after hearing that Timothy McVeigh had been arrested
in connection with the Oklahoma City bombing, Terry Nichols voluntarily
appeared at the Herington, Kansas Department of Public Safety, where the
FBI interviewed him. Nichols' statements include those describing his
facially innocent acts with or on behalf of McVeigh in the days
surrounding the bombing. Although they mention McVeigh, these statements
are incriminating only in light of other evidence in this case. As these
statements are critical to the manner in which the prosecution prepares
its case, their admissibility should be resolved well in advance of
Nichols' statements of his activities with or on behalf of McVeigh
during the critical days fall into three categories:
A. Driving McVeigh From Oklahoma City To Kansas On April 16.
Nichols admitted that, on April 16, 1995 (Easter Sunday), he drove to
Oklahoma City, "went past that [Murrah] building a couple of times"
looking for McVeigh, spotted McVeigh down an alley and picked him up,
and drove him back to Kansas. Nichols denied that his Oklahoma City trip
had anything to do with bomb preparations, and claimed instead that
McVeigh had called him after McVeigh's car had broken down in Oklahoma
City while en route from Arizona with Nichols' television set. Nichols
claimed that McVeigh told him he would have to pick up McVeigh in
Oklahoma City if he wanted the TV. Nichols admitted that he lied to his
wife Marife by telling her that he was picking up McVeigh in Omaha,
Nebraska. Nichols claimed that he left Kansas to pick up McVeigh shortly
after 3:00 p.m. on April 16, that he dropped off McVeigh near a closed
Junction City McDonald's at 1:30 a.m. on April 17, and that he arrived
back home in Herington about 2:00 a.m.
B. Allowing McVeigh To Use A Truck On April 18.
Nichols claimed that his next contact with McVeigh occurred on April 18,
1995, when McVeigh called asking to borrow his truck. Nichols told the
FBI that at around 7:30 a.m. on April 18, he picked up McVeigh at the
same Junction City McDonald's where they had parted ways two nights
earlier and lent McVeigh his truck. Nichols purportedly attended a Fort
Riley military auction until the afternoon of April 18 when McVeigh
returned with his truck.
C. Cleaning Out The Locker For McVeigh On April 20.
Nichols told the FBI that, on April 20, 1995 (the day after the
bombing), he removed McVeigh's sleeping bag, rucksack and rifle from a
Herington storage facility. Nichols claimed that he did so pursuant to
McVeigh's April 18th directive that "if I don't pick [up those
belongings], pick them up for me.
NICHOLS' STATEMENTS ABOUT HIS ACTIVITIES WITH OR FOR MCVEIGH IN THE DAYS
SURROUNDING THE BOMBING ARE ADMISSIBLE IN A JOINT TRIAL.
A. Nichols' Statements Are Admissible Against Both Defendants As
Declarations Against Interest.
Nichols' statements are admissible not just against him but also against
McVeigh as declarations against interest under Fed. R. Evid. 804(b)(3).
The first prerequisite under Rule 804(b)(3) is that the "declarant is
unavailable as a witness," something that clearly is the case here
because Nichols has a Fifth Amendment right not to testify at trial. See
Fed. R. Evid. 804(a)(1) (defining "unavailability" to include witnesses
exempted from testifying on ground of privilege). The question then
becomes whether, in the words of Rule 804(b)(3), Nichols' statements "so
far tended to subject the declarant to ... criminal liability, ... that
a reasonable person in the declarant's position would not have made the
statement unless believing it to be true." See Williamson v. United
States, 114 S. Ct. 2431, 2435 (1994) ("Rule 804(b)(3) is founded on the
commonsense notion that reasonable people, even reasonable people who
are not especially honest, tend not to make self-inculpatory statements
unless they believe them to be true"). A trial court evaluating Rule
804(b)(3) must parse the overall interview and make a statement-by-
statement determination "in light of all the surrounding circumstances."
Id. at 2435-2437.
For purposes of Williamson, the key circumstance surrounding the April
21, 1995 interview is that Nichols admitted he was aware McVeigh had
just been arrested for the Oklahoma City bombing. Indeed, although we
will not seek to introduce it at trial (see supra note 1), a key
statement in the Rule 804(b)(3) analysis is Nichols' admission that he
himself "suspect[ed]" McVeigh was involved in the bombing. A reasonable
person in Nichols' shoes would not make statements linking himself to
McVeigh, or to the city of the bombing, unless he in fact believed they
were true. Nichols, however, linked himself to McVeigh in three critical
ways during the days just before and after the bombing: 1) he admitted
driving to Oklahoma City, meeting McVeigh, and driving back with him on
April 16, 1995; 2) he admitted being with McVeigh and lending him his
pickup truck in Kansas on April 18, 1995; and 3) he admitted cleaning
out a storage locker for McVeigh on April 20, 1995. Once having admitted
involvement with McVeigh on these critical days, the fact that Nichols
may have been motivated to falsely explain it away does not undercut the
inherent reliability of his core admissions. See Williamson, 114 S. Ct.
at 2435 ("One of the most effective ways to lie is to mix falsehood with
truth, especially truth that seems particularly persuasive because of
its self-inculpatory nature").
Even though Nichols' statements mention McVeigh as well, "[t]here are
many circumstances in which Rule 804(b)(3) does allow the admission of
statements that inculpate a [fellow] criminal defendant." Williamson,
114 S. Ct. at 2436; accord id. at 2438 (Scalia, J., concurring) ("a
declarant's statement is not magically transformed from a statement
against penal interest into one that is inadmissible merely because the
declarant names another person or implicates a possible codefendant").
An example given by the Supreme Court comes remarkably close to the
present case: The statement "'Sam and I went to Joe's house' might be
against the declarant's interest if a reasonable person in the
declarant's shoes would realize that being linked to Joe and Sam would
implicate the declarant in Joe and Sam's conspiracy." Id. at 2437.
There are present here none of the factors cited in Williamson and other
cases that might undercut admissions to authorities. Most important,
Nichols was not a defendant "caught red-handed" who was "striving
mightily to shift principal responsibility to someone else." Williamson,
114 S. Ct. at 2439-2440 (Ginsburg, J., concurring in part and in
judgment); cf. Lee v. Illinois, 476 U.S. 530, 544 (1986) (defendant may
have been motivated "either to mitigate the appearance of his own
culpability by spreading the blame or to overstate Lee's involvement in
retaliation for her having implicated him in the murders"). On the
contrary, a reasonable person in Nichols' shoes would not make up
stories about traveling to Oklahoma City to meet the suspected bomber
three days before the bombing, about lending the suspected bomber his
truck the day before the bombing, and about cleaning out a storage
locker for the suspected bomber the day after the bombing.
Because Nichols' core statements qualify as declarations against
interest, their admission also satisfies the Confrontation Clause. The
Sixth Amendment, which requires that hearsay evidence "bear adequate
'indicia of reliability,'" can be satisfied in one of two ways. Ohio v.
Roberts, 448 U.S. 56, 66 (1980). First, "[r]eliability can be inferred
without more in a case where the evidence falls within a firmly rooted
hearsay exception." Id. E.q., White v. Illinois, 502 U.S. 346, 355-356 &
n.8 (1992). Alternatively, the Sixth Amendment is satisfied by "a
showing of particularized guarantees of trustworthiness." Roberts, 448
U.S. at 66. Both these Sixth Amendment alternatives are satisfied here.
The Tenth Circuit, like most federal courts to have considered the
issue, holds the declaration against penal interest hearsay exception a
"firmly rooted" one that satisfies the Sixth Amendment. Jennings v.
Maynard, 946 F.2d 1502, 1505-1506 (10th Cir. 1991). Accord United States
v. Saccoccia, 58 F.3d 754, 779 (1st Cir. 1995) (hearsay exception "for
declarations against penal interest [is] firmly rooted in our
jurisprudence"); United States v. York, 933 F.2d 1343, 1363-1364 & n.5
(7th Cir.), cert. denied, 502 U.S. 916 (1991) (similar). Although
Jennings involved an Oklahoma state hearsay exception, the Tenth Circuit
emphasized that the state rule was virtually identical to Federal Rule
804(b)(3). See 946 F.2d at 1505, 1506. Thus, the Tenth Circuit is among
those courts that hold Rule 804(b)(3) to be "firmly rooted" for purposes
of satisfying the Sixth Amendment. See United States v. Dean, 59 F.3d
1479, 1493 (5th Cir. 1995) ("many courts have held that Rule 804(b)(3)
is a firmly rooted exception to the hearsay rule"; citing Tenth
Circuit's Jennings opinion and other federal decisions), cert. denied,
116 S. Ct. 748 (1996).
Even if Rule 804(b)(3) were not firmly established, the Sixth Amendment
would be satisfied because Nichols' core statements bear "particularized
guarantees of trustworthiness." The Supreme Court has explained that
"[t]o be admissible under the Confrontation Clause, hearsay evidence
used to convict a defendant must possess indicia of reliability by
virtue of its inherent trustworthiness, not by reference to other
evidence at trial." Idaho v. Wright, 497 U.S. 805, 822 (1990). Stated
otherwise, the circumstances surrounding the statement must provide some
"basis for supposing that the declarant is particularly likely to be
telling the truth." Id. Justice O'Connor's pivotal opinion in Williamson
explained that "the very fact that a statement is genuinely self-
inculpatory -- which our reading of Rule 804(b)(3) requires -- is itself
one of the 'particularized guarantees of trustworthiness' that make a
statement admissible under the Confrontation Clause." 114 S. Ct. at
2437. The same reason that supports admissibility of Nichols' statements
under Rule 804(b)(3) thus supports their admissibility under the Sixth
Amendment: there is a strong basis for believing that someone would not
make up or exaggerate (although he might falsely deny or minimize)
contacts with the suspected bomber in the days immediately before and
after the bombing.
B. Nichols' Statements Are Not Governed BY Bruton Because They Are Not
On Their Face A "Devastating Confession" That Is "Powerfully
Incriminating" To McVeigh.
The "preference in the federal system for joint trials of defendants who
are indicted together" (Zafiro v. United States, 506 U.S. 534, 113 S.
Ct. 933, 937 (1993)) remains even though "[i]n most joint trials, ...
some evidence is admitted against some codefendants that is not
admissible against others." United States v. Lane, 883 F.2d 1484, 1498
(10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990). As this Court
knows, such evidence often includes "out-of-court statements by [a]
codefendant" that are not admissible against other defendants. Id. at
1499. Bruton v. United States, 391 U.S. 123 (1968), carved out a "narrow
exception" to "the almost invariable assumption" that limiting
instructions suffice in such cases. Richardson, 481 U.S. at 206-207.
There is no Bruton issue, however, as to statements that are admissible
not just against Nichols but also against McVeigh under Rule 804(b)(3).
United States v. Cox, 449 F.2d 679, 689 (10th Cir. 1971) ("Bruton
doctrine does not rule situations like the present one in which the
evidence is admissible under a well recognized exception to the hearsay
rule"), cert. denied, 406 U.S. 934 (1972) .2
Even if Nichols' statements were inadmissible against McVeigh, Bruton
still would not apply. Bruton held that "a defendant is deprived of his
Sixth Amendment right of confrontation when the facially incriminating
confession of a nontestifying codefendant is introduced at their joint
trial, even if the jury is instructed to consider the confession only
against the codefendant." Richardson, 481 U.S. at 207. The codefendant's
out-of-court statements in Bruton had such a "powerful" and
"devastating" effect because they directly and unequivocally linked the
defendant to the crime: "A postal inspector testified that [codefendant]
Evans orally confessed to him that Evans and [defendant Bruton]
committed the armed robbery." Id. at 124. Although full-blown
confessions of this type were too "powerful" and "devastating" for
limiting instructions, the Bruton Court carefully limited the scope of
its holding: "Not every admission of inadmissible hearsay or other
evidence can be considered to be reversible error unavoidable through
limiting instructions." Id. at 135.
Consistent with the facts and rationale of Bruton. the Tenth Circuit has
been careful to "limit Bruton applications to 'clearly inculpatory'
comments that are 'vitally important to the government's case.'" United
States v. Hill, 901 F.2d 880, 884 (10th Cir. 1990) (citing United States
v. Espinosa, 771 F.2d 1382, 1399 (10th Cir.), cert. denied, 474 U.S.
1023 (1985)). Whether in fact a statement is "clearly inculpatory" must
be determined from the face of the statement without reference to other
trial evidence. See Richardson, 481 U.S. at 208-209 (Bruton is "limited
to facially incriminating confessions"); id. at 211 ("the precise facts
of Bruton involv[ed] a facially incriminating confession" and "we
decline to extend it further"). In short, Bruton does not apply where
the admitted statement "was not incriminating on its face, and became so
only when linked with evidence introduced later at trial...." Id. at
Nichols' statements detailing his actions with or on behalf of McVeigh
from April 16-20 are not facially incriminating but instead become so
only when considered with other evidence to be introduced at trial. For
example, Nichols' admitted meeting of McVeigh in Oklahoma City on April
16 (for an ostensibly legitimate purpose) is not powerfully
incriminating "on its face"; to the contrary, thousands of innocent
persons traveled to downtown Oklahoma City in the vicinity of the Murrah
Building during the days preceding the bombing. Likewise, there is
nothing "facially incriminating" in Nichols' statements about lending
his truck to McVeigh on April 18 and about cleaning out the storage
locker on April 20. All these statements become incriminating when
"linked" with independent evidence of McVeigh's and Nichols' roles in
the bombing, but that is not enough to fall within "the narrow [Bruton]
exception." Richardson, 481 U.S. at 208 & n.3; see also United States v.
Chatman, 994 F.2d 1510, 1513 (10th Cir.) (Bruton does not apply where
the codefendant's statements provide only "inferential incrimination" of
the defendant), cert. denied, 114 S. Ct. 230 (1993).
Case law makes clear that the facial incrimination requirement applies
where the admitted statement refers to another defendant by name. Thus,
in United States v. Clark, 456 F.2d 1375, 1376 (10th Cir. 1972), the
Court rejected Bruton challenges to an FBI agent's testimony in a check-
kiting prosecution regarding statements by one codefendant (McHenry)
about his financial dealings with the other defendant (Clark). McHenry's
statement admitted that he and Clark together had created false bank
balances by depositing checks backed by insufficient funds. Id. at 1376,
1378. The Tenth Circuit nonetheless found Bruton "readily
distinguishable" because "McHenry's statement didn't incriminate, as
such, either himself or Clark." Id. at 1376 (alternative holding). The
Court explained that McHenry's FBI "statement was not in any sense a
confession, but was essentially a recitation of the financial dealings
between the two defendants" and the statement did not "amount to an
effort on the part of McHenry to attribute criminal intent to Clark."
Id. Although both defendants in Clark eventually adopted a theory of
defense (lack of criminal intent) that accepted McHenry's statement to
the FBI, the fact remains that the actual substance of that statement
(creating false bank balances) was far more facially incriminating than
the statements at issue here (driving to Oklahoma City, lending a
pickup, and emptying a storage locker).
Likewise, in United States v. Olano, 62 F.3d 1180 (9th Cir. 1995), a
bank fraud case where several defendants were jointly tried for having
made several insider loans to each other's financial institutions, the
court rejected Bruton challenges to various pretrial statements
(including grand jury and deposition transcripts), admissible only
against certain codefendants, describing the deals. See id. at 1195-
1196. Among the statements at issue was one by a codefendant, who was
chairman of a separate financial institution, that he had 'two loans for
Guy Olano to make. Id. at 1196. Even though this statement (and others)
could be powerfully incriminating when considered with other trial
evidence suggesting a pattern of insider loans among legally distinct
financial institutions, the court held that a limiting instruction fully
protected Olano's rights because "[n]one of the codefendants' statements
incriminated Olano on their face." Id. at 1195. In particular, the court
deemed the statements "[u]nlike the full-blown confession that was the
subject of Bruton," because they "plainly did not have a sufficiently
'devastating' or 'powerful' inculpatory impact to be incriminatory on
[their] face." Id. (emphasis added).
Many other cases reject Bruton challenges to the admission in a joint
trial of a codefendant's out-of-court statements regarding dealings with
the defendant. The unifying theme of these cases is that Bruton does not
apply where the codefendant's statements are not a confession
incriminating the defendant on their face. See, e.q., United States v.
Escobar, 50 F.3d 1414, 1422 (8th Cir. 1995) (codefendant "Keeper's
statement was used only to show that he was acquainted with [defendants]
Escobar and Duarte and he lied about this fact; this statement by itself
does not implicate Escobar or Duarte in any wrongdoing"); United States
v. Smith, 46 F.3d 1223, 1229 (1st Cir.) ("Admittedly, [codefendant]
Cohen's statement might tend to incriminate [defendants] Smith and
Devaney by showing that the coconspirators met to discuss damage
control" but "[i]n this sense, however, the statement falls far outside
the pale of 'powerfully incriminating' evidence that produces Bruton
errors"), cert. denied, 116 S. Ct. 176 (1995); United States v. Foree,
43 F.3d 1572, 1578 (11th Cir. 1995) ("there still remains the predicate
question of whether [codefendant] Draznin's disjointed lamentations,
even when identified with [defendant] Foree, were the kind of powerfully
incriminating, directly inculpatory confessions that the Confrontation
Clause protects against in this context"; court went on to find no plain
error even assuming a Bruton violation) (emphasis in original;
Nichols' core statements are like the statements in these cases, and
unlike the "full-blown confession" in Bruton, because they admit to no
wrongdoing by either he or McVeigh. Those statements are relevant
because they link Nichols to McVeigh on the critical days surrounding
the bombing but they do not, in the absence of independent evidence
linking defendants to the bombing, prove either guilty of the crime. The
statements thus are not "facially incriminating confessions" governed by
Bruton. Richardson, 481 U.S. at 208-211.
Nichols' statements, describing his activities with or on behalf of
McVeigh in the days immediately surrounding the bombing, are admissible
in either a joint trial or in separate trials.
HENRY L. SOLANO, United States Attorney
JOSEPH H. HARTZLER, Special Attorney to the U.S. Attorney General
SEAN CONNELLY, Special Attorney to the U.S. Attorney General
210 W. Park Avenue, Suite 400
Oklahoma City, Oklahoma 73102
1. This motion does not seek to resolve the admissibility of all
Nichols' statements to the FBI, and the United States anticipates that
the parties will litigate discrete evidentiary issues as the case
proceeds to trial. Nichols made many statements which did not mention
McVeigh and others which did but nonetheless are relevant without
reference to McVeigh by name (e.q., Nichols described his own family and
work history, admitted renting various storage sheds, and discussed his
knowledge of how ammonium nitrate can be used to make a bomb). There are
certain statements mentioning McVeigh by name (e.q., Nichols' remark
that he "suspect[ed]" McVeigh was involved in the bombing) that we do
not and will not seek to have admitted at trial.
2. See also Lane, 883 F.2d at 1498 ("If all the evidence in a joint
trial of defendants was admitted against each defendant, no such
prejudice could result from the joint trial because the evidence would
be precisely as it would at each defendant's separate trial"); United
States v. Adams, 470 F.2d 249, 251 (10th Cir. 1972) ("language of Bruton
suggests that it applies only to inadmissible hearsay, and we have so
held") (citing 391 U.S. at 128 n.3, where Bruton Court "emphasize[d]
that the hearsay statement inculpating petitioner was clearly
inadmissible against him").
ORDER GRANTING MOTION IN LIMINE
It is hereby ORDERED that the United States may introduce testimony, in
a joint trial, of Nichols' statements about driving McVeigh from
Oklahoma City to Kansas on April 16, lending him his truck on April 18,
and cleaning out his locker on April 20. After conducting a statement-
by-statement review, the Court finds that these statements in which
Nichols admits associations with McVeigh before and after the bombing
are admissible not only against Nichols but also against McVeigh as
declarations against interest pursuant to Fed. R. Evid. 804(b)(3).
Williamson v. United States, 114 S. Ct. 2431, 2435 (1994).
Alternatively, the Court finds that McVeigh's rights can be protected
fully by limiting instructions, and that the narrow Bruton exception
does not apply because Nichols' statements are not on their face a
"confession" that is "devastating" to, and "powerfully incriminating"
of, McVeigh. Richardson v. Marsh, 481 U.S. 200 (1987).
DATED: _____________, 1996.
BY THE COURT:
Richard P. Matsch, Chief Judge
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