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Govt's 2/96 Motion/Brief/Proposed Order To Admit T. Nichol's Pre-Trial/Arrest Statements As Evidence

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Chief Judge Richard P. Matsch

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



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.

Respectfully Submitted,




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 trial.1

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.



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 208.

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; quotations omitted).

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.

Respectfully Submitted,

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



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").



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.


Richard P. Matsch, Chief Judge

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