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Govt's 2/96 Motion For Order Staying Defendants From Pursuing Discovery In Civil Cases Arising From The Ok Bombing

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Chief Judge Richard P. Matsch

Criminal Action No. 96-CR-68-M (formerly No. 95-110 MH WDOK)



The United States moves this Court for an order staying defendants from pursuing discovery in civil cases arising from the April 19, 1995, bombing that is the subject of this indictment. Defendant McVeigh, represented by counsel appointed under the Criminal Justice Act, has improperly sought to expand the criminal discovery rights allowed him under federal law by invoking the civil process of an Oklahoma state court. As set forth more fully in the accompanying brief, federal case law supports the imposition of a protective order preserving the integrity of this prosecution.

Respectfully Submitted,




In the wake of the federal indictment of defendants McVeigh and Nichols, various civil lawsuits have been filed seeking damages for the April 19, 1995, bombing. McVeigh has conceded to this Court that he views these civil suits as an "opportunity to take depositions of witnesses and to issue subpoenas for the production of items which he could not get from the government." Docket Entry ("DE") 784 at 23. Indeed, McVeigh deems civil suits "extremely important for the defense" precisely because "there [is] no basis in the criminal case to subpoena" witnesses before trial. Id.

Most recently, a lawsuit was filed in Canadian County (Oklahoma) state court by Edye Smith, whose sons Chase and Colton died in the blast, against "McVeigh and other unknown individuals." See Amended Petition filed 2/9/96 in Smith v. McVeigh, No. CJ 96-18 (Can. Cty. Dist. Ct.) (Exhibit A:1-3). Attorney Stephen Jones, who was appointed to represent McVeigh in this federal criminal case under the Criminal Justice Act, entered his appearance on behalf of McVeigh in the state civil case on February 7, 1996. See Exhibit A:4. McVeigh has not yet filed any answer in the civil case, but already Mr. Jones has sought civil discovery therein. See McVeigh's Application for Formal Letter of Request to take Depositions in Foreign Courts, filed 2/12/96 (Exhibit A:6-10). Mr. Jones' affidavit in support of this civil discovery request discusses the allegations in the "parallel" criminal case and criticizes the federal government's investigation. Exhibit A:15- 23. McVeigh requests that an Oklahoma judge allow him to pursue discovery in the civil case, including "depositions in Great Britain" (pursuant to letters rogatory) of three alleged "British fascists" to examine "their activities in the United States to advance their political agenda and whether these discussions involved the possibility directly or indirectly of overt activity against the federal government, its employees and its property." Exhibit A:7. Mr. Jones' supporting affidavit cautions that he "does not at this point allege that these individuals are involved in the bombing, but instead believes that they may have knowledge of motives and participants." Exhibit A:22.

Mr. Jones' public comments confirm that he wishes to exploit civil discovery for the purpose of defending McVeigh in this federal criminal case as well as in the press. For example, an Associated Press story on February 9, 1996 (three days before McVeigh's deposition requests were filed in state court), reported that "Jones said the depositions may be used in the federal [criminal] case." "McVeigh Attorneys Seek Subpoenas," AP, Feb. 9, 1996 (Exhibit B:1); see also Exhibit B:3 (Mr. Jones' statement on Feb. 5, 1996, edition of NBC's Today Show, that: "I think there may be a link not involving my client but that there may be a link between some very radical right-wing groups in this country and the neo-Nazis in Britain and Germany that may have been part of a conspiracy to bomb the federal building"); Exhibit B:5-8 (Mr. Jones' interview that same day on CBS This Morning); "McVeigh Lawyer Looks into European Conspiracy Theory," Daily Oklahoman, Feb. 5, 1995, at 07 (Exhibit B:9-11).


It is well established that "in appropriate circumstances, the district court has authority under [Federal] Rule [of Criminal Procedure] 16(d) to prevent the parties from abusing discovery procedures, including attempts to avoid the limitations on criminal discovery through the use of civil discovery provisions." United States v. Stewart, 872 F.2d 957, 962-963 (10th Cir. 1989) (citing SEC v. Dresser Industries, 628 F.2d 1368, 1373 (D.C. Cir. 1980); Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert. denied, 371 U.S. 955 (1963)). In many cases "[f]ederal courts have deferred civil proceedings pending the completion of parallel criminal prosecutions when the interests of justice seemed to require such action, sometimes at the request of the prosecution...." United States v. Kordel, 397 U.S. 1, 12 (1970); e.a., RaPhael v. Aetna Casualty and Surety Co., 744 F. Supp. 71 (S.D.N.Y. 1990); LaRouche Campaign v. FBI, 106 F.R.D. 500 (D. Mass. 1985).

Judge Wisdom's seminal opinion in Campbell v. Eastland outlined the reasons courts should ensure that defendants do not circumvent the restrictions on federal criminal discovery by seeking more liberal civil discovery in a related case. One important reason is not to add to "the defendant's existing advantages" in a criminal case. 307 F.2d at 487 n.12 (internal quotations omitted). Not only must the federal prosecution prove a defendant's guilt beyond a reasonable doubt to a unanimous jury of twelve citizens, it must do so after having provided the defense with statutorily and constitutionally mandated discovery. In contrast, "the self-incrimination privilege would effectively block any attempts to discover" information directly from the defendant. Id. The present case -- in which the United States has provided McVeigh with discovery of more than 10,000 witness statements and a massive quantity of physical evidence while receiving virtually nothing in return -- is a prime example of a federal criminal defendant's built-in "advantages." McVeigh should not be allowed the additional advantage of using civil discovery to prepare to defend against federal criminal charges.

A case closely on point is United States v. Phillips, 580 F. Supp. 517 (N.D. Ill. 1984). The court there ordered the defendant to "cease taking or receiving further discovery in the state court case," which had been filed against him five months before his federal indictment, "until his criminal trial in this Court has been completed." Id. at 520. The court based this order on the facts that:

A review of the discovery materials already obtained and requested by Phillips in the civil action indicates that Phillips has unquestionably utilized the state civil discovery rules for the prime purpose of obtaining materials to which he is not entitled under federal criminal discovery rules. Although some of the information sought by Phillips relates to the state court slander suit, much more of the discovery is aimed at Phillips' upcoming criminal trial. This abusive tactic is an improper circumvention of the criminal discovery rules. Protection of the integrity of the criminal justice process fully justifies this Court's taking remedial action. Id. at 519-520.

Stay orders have been issued regardless of whether the civil lawsuit was brought and discovery was sought for reasons entirely independent of the criminal case. E.q., Campbell v. Eastland, 307 F.2d at 488 ("whether or not the suit, as distinguished from the motion was bona fide, the effect of granting the motion was to give pre-trial discovery of documents denied the taxpayer in the criminal case"); In re Eisenberg, 654 F.2d 1107, 1113-1114 (11th Cir. 1981) ("Even if Eisenberg possessed the purest of motives, he would have been the beneficiary of materials otherwise unavailable to him under the criminal rules if the motion were granted, thus nullifying in effect the criminal discovery limitations"); Twenty First Century Corp. v. LaBianca, 801 F. Supp. 1007, 1010 (E.D.N.Y. 1992) (stay ordered even though "[n]o party to this action contends that the civil case was brought solely to obtain broader discovery in the criminal case"). Indeed, defendants have been stayed from pursuing civil discovery even where it was the federal government that simultaneously was pursuing both the criminal and civil cases. F.q., In re Ivan F. Boesky Securities Litigation, 128 F.R.D. 47, 48 (S.D.N.Y. 1989) (staying civil discovery where "Michael Milken and Lowell Milken are defendants in parallel civil and criminal cases brought respectively by the Securities and Exchange Commission ('SEC') and the United States Attorney"). It is enough in such cases that "the similarity of the issues left open the possibility that [defendant] might improperly exploit civil discovery for the advancement of his criminal case." United States v. Mellon Bank, N.A., 545 F.2d 869, 873 (3d Cir. 1976).

This clearly is an appropriate case for ordering McVeigh temporarily not to pursue or receive any civil discovery. McVeigh has conceded to this Court that he views these civil suits as an "opportunity" to obtain discovery, particularly pretrial witness depositions, that he could not legitimately obtain in this criminal case. DE 784 at 23. Moreover, Mr. Jones' affidavit in support of his civil discovery request spends far more time discussing the allegations in the "parallel" criminal case and criticizing the +federal government's investigation than he does responding to any separate allegations in the civil case. See Exhibit A:15-23. Indeed, McVeigh sought international discovery in the state case before even bothering to respond to the complaint. The inference is unavoidable that McVeigh's discovery-driven response to the state civil suit is an effort principally to defend against federal criminal charges rather than to litigate whether McVeigh (a sworn indigent) is civilly responsible for millions of dollars.

To the extent McVeigh might argue that he has sought civil discovery in whole or in part to defend the state case, and not just to aid his criminal defense, he clearly is not entitled to the services of attorneys appointed under the federal Criminal Justice Act ("CJA"), 18 U.S.C. Section 3006A. Whether or not McVeigh's attorneys are actually billing the United States for time spent defending the civil case, CJA funds are subsidizing their overall representation of McVeigh. Those lawyers are not entitled to use federal funds to subsidize their representation, including overseas discovery, of a civil defendant in a state case.

This Court accordingly should issue a protective order staying defendants from pursuing or receiving discovery in any civil case pending the outcome of this criminal proceeding. The United States has no indication that defendant Nichols has ever sought to exploit civil discovery, but the proposed order would include him as well. In addition, the proposed order would require defendants to notify the Court and the United States of any civil litigation in which they are named parties, so that the need for any further relief may be determined.


For the above reasons, the Court should enter an order staying defendants from pursuing discovery in civil cases arising from the April 19, 1995, bombing. A proposed order is attached.

Respectfully Submitted,
Feb. 22, 1986.

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
(405) 231-5281

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