IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, )
v. ) Case No. M-95-98-H
TIMOTHY JAMES McVEIGH, )
BRIEF IN SUPPORT OF MOTION FOR
PRESERVATION OF EVIDENCE
Defendant, Timothy James McVeigh, through counsel moves this court to
enter an order to preserve all evidence concerning the alleged crime.
In support of this motion, Mr. McVeigh would state:
1. Counsel in order to adequately investigate the case needs to have
access to all evidence pertaining to the crime. Access to all the
available evidence will assist counsel in their ability to assess the
case and effectively exercise the defendant's right to confrontation;
2. Counsel needs access to all material 80 that their experts may
examine and assess it. This request extends to material used by the
Government's experts in their tests, including the residue remaining
from any Government tests;
3. Due to the sheer volume of the evidence, it is likely that
evidence will be lost, destroyed or consumed during testing by the
Government in their investigation. Thus, an order from the court is
necessary to insure In support of this request, Mr.
McVeigh presents the following argument and authorities:
THE COURT SHOULD ENTER AN ORDER TO PRESERVE ALL THE EVIDENCE
Mr. McVeigh's lawyers have a duty to conduct a complete investigation
of this case. The American Bar Association's Standards for Criminal
Justice, Defense Function 4-4.1, said:
"It is the duty of the lawyer to conduct a prompt investigation of
the circumstances of the case and to explore all avenues leading to
facts relevant to the merits of the case and the penalty in the event
of conviction." Here, the only way that counsel can comply with this
duty is to have the court enter an order directing all governmental
agencies preserve all evidence regarding this case. This order should
include all physical evidence removed from the Alfred P. Murrah
Building, including debris and even the residue left from the
conducting of tests by the Government's experts.
Certainly, justice is better served when a defendant is provided with
the most detailed information possible. Pierce v. State, 786 P.2d
1255, 1263 (Okl.Cr. 1990). An order directing that all evidence be
preserved and that defense counsel have access to it will insure that
Mr. McVeigh as a fair trial. See Goodwin v. Balcom, 684 F.2d 794,
805 (11th Cir. 1982)("At the heart of effective representation is the
independent duty to investigate and prepare"); Gaines v. Harper, 575
F.2d 1147, 1149-50 (5th Cir. 1978)("[I]nformed evaluation of
potential defenses and meaningful discussion with one's client of the
realities of his case are cornerstones of effective assistance of
counsel'"). Counsel can make no tactical decisions until they have
seen the entirety of the evidence. See Mellem v. State, 106 Or.App.
642, 809 P.2d 1348, 1350 (1991)("A tactical decision must have some
kind of factual predicate. Consequently, professional skill requires
at least an attempt to find out facts before a final tactical
decision is made").
The case of Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988)
does not preclude this court from entering the requested order.
There, the Court held that the failure of the police to preserve
potentially useful evidence was not a denial of due process of law
absent defendant's showing of bad faith on the part of the police.
The case can be distinguished.
The facts in Youngblood dealt with facts that did not include a
defense request to preserve the evidence while it was still in
existence. The failure to enter an order now may mean that potential
exculpatory or mitigating evidence may be lost. The effect of such a
situation would be tantamount to the Government withholding
of,evidence which the United States Supreme Court has long held to be
a due process violation. See Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194 (1963).
This court should foreclose a future Brady situation by ordering that
the Government preserve all evidence and that defense counsel have
access to it. The failure to preserve evidence even if not
intentional or with bad faith can lead to a determination that
evidence was improperly withheld. The Tenth Circuit Court of Appeals
stated in Fero v. Kerby, 39 F.3d 1462 (10th Cir. 1994) the
To establish a Brady violation, the defense must prove that the
prosecution suppressed the evidence, the evidence, would have been
favorable to the accused, and the suppressed evidence was material.
Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. However, with respect to
the first element, we have held that negligent or inadvertent
suppression of evidence is nonetheless suppression for Brady
purposes. United States v. Montoya, 716 F.2d 1340, 1345- 46 (10th
Cir. 1983). 39 F.3d at 1472.
Also, with regard to the applicability of Youngblood, the court
should review United States v. Bakhitan, 994 F.2d 970 (2nd Cir.
1993). There, the court noted the defense's argument:
The defendant's argue that it is also bad faith for a government
agency to provide no reliable system for the preservation of
evidence, citing United States v. Bryant, 439 F.2d 642 (D.C.Cir.
1971). As Judge Skelly Wright argued in Bryant, the only way to
protect Brady material before the defendant requests its is to
require the government to safeguard potentially exculpatory evidence.
439 F.2d at 650-53. 994 F.2d at 975.
The court in Bakhitan said, "Bryant may still have validity after
Youngblood." 994 F.2d at 975. Accordingly, a review of Bryant is
In Bryant, the court set forth the issue. language states what is at
stake here in this motion:
The right at stake in the cases before us is defendant's discovery of
evidence gathered by the Government, evidence whose disclosure to
defense counsel would make the trial more a 'quest for truth' than a
'sporting event.' This safeguard of a fair trial is surely an
important one; but here it was undercut at the pretrial period by
bureaucratic procedures and/or discretionary decisions of Government
investigative agents who made no effort to preserve discoverable
materials. When defense motions for discovery were made, it turned
out that the material was unaccountably 'lost.' 439 F.2d at 644.
The court in Bryant also stated that, if there is a requirement that
defense counsel must know what evidence he wants preserved before he
can request that it be preserved, such a request would make Brady an
"empty promise." 439 F.2d at 648. Here, the court should enter the
appropriate order that potential exculpatory evidence can be
"The preservation of evidence is in every litigant's proper
interests." Nissei Sangyo America, Ltd. v. United States, 31 F.3d
435, 438 (7th Cir. 1994). The Tenth Circuit Court of Appeal+ in
United States v. Molina-Cuartes, 952 F.2d 345 (10th Cir. 1991),
expressed its displeasure at the Government for the mishandling of
evidence. That case involved a discrepancy between the weight of the
narcotics seized and the weight of the narcotics weighed for
sentencing purposes. The court said, "[w]e find this careless
disregard for evidence preservation deplorable and suggest to the
Government it should not allow this sort of disappearance to be
repeated." 952 F.2d at 349-50.
On April 19, 1995, the United States Supreme Court decided Kyle v.
Whitley, -- U.S. -- (1995), 63 USLW 4303, 1995 WL 227644. The Court
granted habeas corpus relief because the prosecutors had withheld
certain exculpatory evidence. Language from the opinion is relevant
to this motion.
Justice Souter, writing for the majority, discussed the desirability
of careful action with regard to disclosure of evidence. Although the
language is directed to prosecutors, the language should have meaning
to this court as well:
This means, naturally, that a prosecutor anxious about tacking too
close to the wind will disclose a favorable piece of evidence. See
Aqurs, 427 U.S., at 108 ("[T]he prudent prosecutor will resolve
doubtful questions in favor of disclosure"). This is as it should be.
Such disclosure will serve to justify trust in the prosecutor as 'the
representative ... of a sovereignty...whose interest ... in a
criminal prosecution is not that it shall win a case, but that
justice shall be done." Berger v. United States, 295 U.S. 78, 88
(1935). And it will tend to preserve the criminal trial, as distinct
from the prosecutor's private deliberations, as the chosen forum for
ascertaining the truth about criminal convictions. [citations
omitted] The prudence of the careful prosecutor should not therefore
be discouraged. 1995 WL 227644
Here, the court has the opportunity to insure that Mr. McVeigh will
have complete access to all available evidence. This opportunity will
enable him to receive the full benefit of his right to counsel. Also,
by allowing complete access and preserving the evidence now the court
forecloses any future claims about withheld evidence. Granting such
an order now will prevent an appellate court from having to grant
relief at a later date. See, e.g., United States v. Udechukwu, 11
F.3d 1101 (1st Cir. 1993) for an example of a case reversed because
the Government failed to provide evidence to the defense.
Access to the entirety of the evidence will enable counsel for the
defense to monitor the investigation of the Government. As the Tenth
Circuit in Bowen v. Maynard, 799 F.2d 593 613 (10th Cir. 1986), "A
common trial tactic of defense lawyers is to discredit the caliber of
the investigation or the decision to charge the defendant, and we may
consider such use in assessing a possible Brady violation." See also
Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir. 1985)(awarding new
trial of prisoner convicted in Louisiana state court because withheld
Brady evidence "carried within it the potential ... for the ...
discrediting ... of the police methods in assembling the case").
Review of the evidence will aid Mr. McVeigh's lawyers in their duty
to "investigate the investigation."
The court should note that the Government in certain Fourth Amendment
situations are allowed to conduct searches without warrants in order
to preserve evidence. See Chimel v. California, 395 U.S. 752, 763,
89 S.Ct. 2034, 2040 (1969). The justification of preservation of
evidence allows an intrusion upon a person's Fourth Amendment rights.
Here, Mr. McVeigh is not asking the court to abrogate the
Government's right to do anything. He is only asking that the be
directed to preserve the evidence, something that should not burden
the Government in any way. The Government should not act "for the
purpose of inflicting a disadvantage upon the defendant." United
States v. Gordon, 580 F.2d 827, 837 (5th Cir. 1979). The Government
should already have procedures in existence for preserving evidence.
See e.a. United States v. Peltier, 800 F.2d 772, 778 (8th Cir.
1986)(court makes reference to internal operating procedures of FBI
with regard to preservation of evidence).
For the reasons stated above, Mr. McVeigh requests this court to
enter an order directing the United States to preserve all evidence
concerning the alleged crime.
SUSAN M. OTTO
FEDERAL PUBLIC DEFENDER
215 Dean A. McGee, Suite 524
Oklahoma City, Okla. 73102
Telephone: (405) 231-5725
JOHN W. COYLE, III
COYLE & McCOY
119 N. Robinson, Suite 320
Oklahoma City, Okla. 73102
Telephone: (405) 232-1988
ATTORNEYS FOR DEFENDANT
GOVERNMENT'S OPPOSITION TO MOTION TO PRESERVE
COMES NOW the United States, by Merrick Garland, Associate Deputy
Attorney General, Rozia McKinney-Foster, U.S. Attorney for the
Western District of Oklahoma, and Arlene Joplin, Assistant U.S.
Attorney, and hereby files its Opposition to Defendant's Motion to
Preserve Eyewitness Identification.
Although Defendant styles his motion as one to "preserve" eyewitness
identification evidence, the motion is clearly mislabeled. As the
motion makes clear, what Defendant seeks is an order compelling the
government either to permit defense counsel to monitor the ongoing
progress of the grand jury investigation by requiring their presence
at all out-of-court identifications, or to create evidence by
requiring the government to videotape or audiotape all such
To the government's knowledge, no court has ever entered an order of
the type requested here; and Defendant cites no such case. Indeed,
under the Supreme Court's decision in United States v. Williams, 504
U.S. 36 (1992), this court is without authority to enter such an
order. The government and the grand jury are currently conducting a
nationwide investigation into the bombing of the Murrah Building, and
a nationwide manhunt for others who may have been involved. The
procedures demanded by the defendant would substantially interfere
government's efforts to bring the perpetrators of this crime to
1. While courts can and must pass upon the legality of the means by
which the government acquired information it seeks to introduce at
trial, there is no basis for the defendant's effort to monitor the
conduct of an ongoing investigation or to require the creation of
evidence of the way in which it was conducted. Due process
principles regarding suggestive identifications "protect an
evidentiary interest" at trial rather than any out-of-court right of
the person identified. Manson v. Brathwaite, 432 U.S. 98, 113 (1977)
(emphasis in original). A defendant may have "due process protections
against the admission of evidence derived from suggestive
identification procedures." Id. at 105; but cf. Archuleta v. Kerby,
864 F.2d 709, 711 (10th Cir.) ("Even if an identification procedure
is suggestive, the introduction of the identification evidence does
not necessarily violate a defendant's due process rights), cert.
denied., 490 U.S. 1084 (1989). However, "[u]nlike a warrantless
search, a suggestive preindictment identification procedure does not
in itself intrude upon a constitutionally protected interest."
Manson, 432 U.S. at 113 n.13. Accordingly, even where pretrial
identification procedures may subsequently be found to have been
unnecessarily suggestive, there is no basis at the pretrial phase for
prospectively regulating those procedures.
2. Defendant cites no case to support the order he seeks. His only
citation to authority is a claim that the court may use its
"supervisory powers" to prevent the "destruction of evidence
discoverable under Rule 16 and Brady. But notwithstanding the
rhetoric he has chosen, "destruction" of evidence is not what his
motion is about. Defendant does not allege that the government is
destroying records; to the contrary, he wants the government to
create a record of eyewitness identifications that it would not
otherwise create. Neither Rule 16 nor Brady require the government to
create such evidence. The government is not obligated to create
potentially exculpatory material that not exist. United States v.
Harvey, 756 F.2d 636, 643 (8th Cir.), cert. denied, 474 U.S. 813
(1985). See United States v. Sukumolachan, 610 F.2d 685, 687 (9th
Cir. 1980) ("Brady v. Maryland ... does not require the government
to create exculpatory material that does not exist.").
Nor can the defendant rely on the court's "supervisory powers" to
oversee the present grand jury investigation. The Supreme Court has
repeatedly stressed that judicial supervisory power "deal[s] strictly
with the courts' power to control their own procedures." United
States v. Williams, 112 S.Ct. 1735, 1741 (1992). Indeed, in
Williams, the Court held that "because the grand jury is an
institution separate from the courts, over whose functioning the
courts do not preside, we think it clear that, as a general matter at
least, no such "supervisory" judicial authority exists and that the
disclosure rule applied here exceeded the Tenth Circuit's authority."
Exercising "supervisory" authority to create substantive standards of
extrajudicial conduct for executive officers would contravene the
Constitution's separation of powers. See United States v. Simpson,
927 F.2d 1088, 1090 (9th Cir. 1991) ("By penalizing executive conduct
that violates neither the Constitution nor a federal statute, the
court invaded the domain of the legislature, whose role it is to
establish limits on such conduct by law; and it invaded the province
of the executive, whose function it is, within legal limits, to
decide how to enforce the law"). Put another way, a court's
supervisory power does not allow a "chancellor's foot veto" over
otherwise lawful activities of the executive branch. United States v.
Russell, 411 U.S. 423, 435 (1973); see also United States v. Payner,
447 U.S. 727, 737 (1980) (judicial supervisory power cannot justify
suppression of illegally-seized evidence that the Fourth Amendment
itself would not preclude).
3. Such case law as there is in this area is directly contrary to
Defendant's claims. In Simmons v. United States, 390 U.S. 377 (1968),
the Supreme Court specifically declined to exercise supervisory
oversight of the procedures followed by the Federal Bureau of
Investigation with respect to out-of-court identifications from
photographs. The Court in Simmons noted "hazards of initial
identification by photograph" (id. at 384), and it agreed with the
defendant that "the identification procedure employed [there] may
have in some respects fallen short of the ideal" (id. at 385-386 &
n.6). Nonetheless, the Court was "unwilling to prohibit its
employment, either in the exercise of our supervisory power or, still
less, as a matter of constitutional requirement." Id. at 384.
Similarly, in United States v. Ash, 413 U.S. 300 (1973), the Supreme
Court was "not persuaded that the risks inherent in the use of
photographic displays are so pernicious that an extraordinary system
of safeguards is required." 413 U.S. at 321. And the Tenth Circuit
has declined to require identification procedures beyond those
required by Supreme Court case law. See Hallmark v. Cartwright, 742
F.2d 584, 585 (10th Cir. 1984) (though defendant is entitled under
Supreme Court's rulings to have counsel present at post-indictment
lineup, counsel is not entitled to be present at "post-indictment
4. Defendant will suffer no harm from the mere conducting of out-of-
court identifications; if and when the prosecution seeks to introduce
a witness' identification at trial, Defendant is free to challenge
its admissibility or attack its weight. Cf. Simmons, 390 U.S. at 384
("The danger that use of the [photographic identification] technique
may result in convictions based on misidentification may be
substantially lessened by a course of cross-examination at trial
which exposes to the jury the method's potential for error").
By contrast, the investigation would be substantially impeded by the
procedures Defendant seeks to require. There is an unquestionable and
overwhelming public interest in permitting the nationwide
investigation and manhunt to proceed as quickly as( possible, before
evidence is destroyed and witnesses and suspects disappear. The
defendant's procedures would put that investigation in a
straightjacket that would delay and complicate investigative efforts,
and intimidate potential witnesses.
Accordingly, based on the foregoing arguments, Defendant's Motion to
Preserve Eyewitness Identification should be denied.
210 W. Park Avenue, Suite 400
Oklahoma City, Oklahoma 73102
United States Attorney
Assistant U.S. Attorney
210 W. Park Avenue, Suite 400
Oklahoma City, Oklahoma 73102
I. Before the Court are defendant's "motion to preserve eyewitness
identification" and "motion for preservation of evidence" with
supporting briefs. The Court has also reviewed plaintiff's responses
II. On April 19, 1995, at approximately 9:00 a.m., a bomb explosion
extensively damaged the Alfred P. Murrah Federal Building in downtown
Oklahoma City, Oklahoma, and caused a large number of injuries and
deaths. Investigation resulted in the filing of a complaint, and
defendant's initial appearance on April 21, 1995, in accordance with
Fed. R. Crim. P. 5.
The Assistant United States Attorney, Arlene Joplin, stated at this
hearing that the United States would seek the death penalty as
prescribed in the charge, 18 U.S.C. 844(f), and Susan Otto, Federal
Public Defender, was appointed to represent defendant. Following the
recommendation of the Federal Public Defender, the Court appointed
John W. Coyle, II as co-counsel. Appointment of at least two
attorneys is statutorily required and the selection of the specific
attomeys is in the discretion of the Court in capital cases upon
recommendation of the Federal Public Defender Organization. 18 U.S.C.
3005. On April 26, 1995, the Court denied without prejudice motions
filed on behalf of defendant involving a motion to transfer, the
application and motions of defense counsel to withdraw and for
appointment of substitute counsel. The preliminary examination was
held conjointly with the detention hearing at the El Reno Federal
Correctional Institute on April 27, 1995. The Court found at that
hearing that there was ample probable cause to find the defendant
committed the offense alleged in the complaint, that defendant should
remain in pretrial detention, and at this time the case awaits
further proceedings in District Court. The motion to preserve
eyewitness identification was initially presented orally at the
preliminary examination and the Court requested a written motion,
supporting brief and a response from the plaintiff.
III. Defendant argues that eyewitness identification evidence is critical
to the government's prosecution of defendant. Defendant asserts that
witnesses are being shown a composite of the suspect or a
photographic spread. Defendant further asserts that his picture has
been prominently displayed in the media, including the widely
displayed images surrounding his transfer to federal custody, and
moreover, a substantial reward has been offered for information
leading to the arrest and conviction of the perpetrators. Defendant
also argues that at some point in time the Court will have to
ascertain the admissibility of any proffered identification, and if
it arises subsequent to an out -of-court identification, then it can
only be properly judged if a record of the identification process is
properly preserved by audio or video taping of each witness interview
in keeping with a series of cases involving lineup and showup
The Supreme Court has held that pretrial lineups are a critical stage
of the crirninal proceedings that invoke the constitutional right to
effective assistance of counsel. United States v. Wade, 388 U.S.218,
227 (1967). Eyewitness identification obtained in an illegal lineup
is grounds for reversible error. Gilbert v. State of Cal., 388 U.S.
263, 272 -273 (1967); accord Stovall v. Denno, 388 U.S. 293, 298
(1967) ("the accused will often be precluded from reconstructing what
occurred and thereby from obtaining a full hearing on the
identification issue at trial"); Simmons v. United States, 390 U.S.
377, 384 (1968) (a substantial likelihood of irreparable
misidentification is a violation of due process); Foster California,
394 U.S. 440, 442-443 (1969) (due process was violated by a repeated,
suggestive lineup only resulting in an identification following a
second lineup). "'[W]e hold that each case must be considered on its
own facts, and that convictions based on eyewitness identification at
trial following a pretrial identification by photograph will be set
aside on that ground only if the photographic identification
procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification."' Neil v.
Biggers, 409 U.S. 188, 196-97 (1972) (quoting Simmons v. United
States, 390 U.S. at 384). However, the Supreme Court has not been
convinced that "the risks inherent in the use of photographic
displays are so pernicious that an extraordinary system of safeguards
is required." United States v. Ash, 413 U.S. 300, 321 (1973). In Neil
v. Biggers, supra at 197, the Supreme Court stated:
The only case to date in which this Court has found identification
procedures to be violative of due process is Foster v. California.
There, the witness failed to identify Foster the first time he
confronted him, despite a suggestive lineup. The police then arranged
a showup, at which the witness could make only a tentative
identification. Ultimately, at yet another confrontation, this time a
lineup, the witness was able to muster a definite identification. We
held all of the identifications inadmissible, observing that the
identifications were 'all but inevitable' under the circumstances
Id. (citations omitted). Factors to be considered to ascertain
whether there exists a very substantial likelihood of irreparable
misidentification are: 1) the opportunity of the witness to view the
criminal at the time of the crime, 2) the witness's degree of
attention, 3) the accuracy of the witness's prior description of the
criminal, 4) the level of certainty demonstrated by the witness at
the confrontation, and 5) the length of time between the crime and
the confrontation. Id. at 199-200. Cross-examination at trial is an
effective method of corroborating or undermining an identification.
Simmons v. United States, 390 U.S. at 384.
The Court's review of the submissions at this pre-indictment stage of
the proceedings confirms three crucial points: (1) that neither the
factual nor legal averments are supportive of the necessity for
taping, (2) this motion serves only to define the constitutional
boundaries of post-indictment proceedings, and (3) constitutional
precepts are not in issue at this time, and evidentiary
considerations at the preliminary examination stage of this
proceeding are generally inapplicable. Fed. R. Evid. 1101(d)(3).
Also see Fed. R. Civ. P. 5.1 (a). Further, the movant makes no
factual showing of improprieties by agents who may be conducting
interviews of eyewitnesses or that evidence has been destroyed or
mishandled, and the only cogent allegation is that "extensive media
coverage" may taint the reliability of any eyewitness
identifications. The five factors that are germane to the reliability
of a pre-trial identification have been previously enumerated and
they include witnesses viewing opportunity, attention, accuracy,
level of certainty, and elapsed time between crime and confrontation.
Neil v. Bi+gers, supra at 199-200; Grubbs v. Hannigan, 982 F.2d 1483,
1490 (lOth Cir. 1993). There is no due process issue of substantial
likelihood of irreparable misidentification that would require
displacement of the good sense and judgment of a jury in measuring
the weight of the identification testimony when subjected to vigorous
cross-examination. Questioned identifications can be fully tested
when the witness is under oath in the courtroom without requiring
investigators for plaintiff, and perhaps for defendant, to become
qualified as electronic taping technicians who must comply with
detailed taping protocols. In any event, the cases establish the
preferred solution to any identification issues under these
circumstances is the credibility and reliability of the witnesses'
judgment which will be most discerningly resolved in courtroom
forensics before a jury whose verdict will be rendered in keeping
with appropriate jury instructions including identification
instructions, if necessary. "Juries are not so susceptible that they
cannot measure intelligently the weight of identification testimony
that has some questionable feature." Manson v. Brathwaite, 432 U.S.
98, 116 (1977).
IV. In the "motion for preservation of evidence," the defendant seeks
accessibility to material used by government experts in testing,
including the residue remaining from the government tests. The
defendant cites several state and federal cases and the American Bar
Association Standards for Criminal Justice as supportive of this
proposition. However, these cases analyze evidence issues in a post-
indictment setting and there is also no factual basis or other
specification of the mishandling of physical evidence under
circumstances that would require some preemptory and unprecedented
intervention by the Court. The gravamen of this motion is a
precursory statement by the defendant of ethical obligations shared
by all parties, and discovery issues, including preservation of
evidence are properly resolved at the appropriate time in keeping
with Fed. R. Crim. P. 16. The Plaintiff has acknowledged its
allegiance to Rule 16 discovery standards, but validly concedes the
impossibility of preserving "every fragment of a bomb site." The
Court finds no constitutional requirement or practical methodology
for external supervisory investigative controls based on Defendant's
generalized legal averments. United States v. Williams 112 S.Ct.
1735, 1741-1742 (1992).
V. Accordingly, in consideration of the motion to preserve eyewitness
identification, the motion for preservation of evidence filed by
the defendant and in further consideration of the plaintiff's
opposition thereto, the motions are DENIED without prejudice.
Entered this 9th day of May 1995.
RONALD L. HOWLAND
UNITED STATES MAGISTRATE JUDGE
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