OKC Bombing Trial Transcript - 05/28/1997 14:31 CDT/CST
05/28/1997
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TIMOTHY JAMES McVEIGH,
Defendant.
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REPORTER'S TRANSCRIPT
(Trial to Jury - Volume 118)
컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴�
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 9:00 a.m., on the 28th day of May,
1997, in Courtroom C-204, United States Courthouse, Denver,
Colorado.
Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
APPEARANCES
PATRICK M. RYAN, United States Attorney for the
Western District of Oklahoma, 210 West Park Avenue, Suite 400,
Oklahoma City, Oklahoma, 73102, appearing for the plaintiff.
JOSEPH H. HARTZLER, BETH WILKINSON, SCOTT MENDELOFF,
JAMIE ORENSTEIN, AITAN GOELMAN, and VICKI BEHENNA, Special
Attorneys to the U.S. Attorney General, 1961 Stout Street,
Suite 1200, Denver, Colorado, 80294, appearing for the
plaintiff.
STEPHEN JONES, ROBERT NIGH, JR., AMBER McLAUGHLIN, and
MICHAEL ROBERTS, Attorneys at Law, Jones, Wyatt & Roberts, 999
18th Street, Suite 2460, Denver, Colorado, 80202; JERALYN
MERRITT, 303 East 17th Avenue, Suite 400, Denver, Colorado,
80203; % MANDY WELCH, Attorney at Law, 412 Main, Suite 1150,
Houston, Texas, 77002; CHERYL A. RAMSEY, Attorney at Law,
Szlichta and Ramsey, 8 Main Place, Post Office Box 1206,
Stillwater, Oklahoma, 74076, and CHRISTOPHER L. TRITICO,
Attorney at Law, Essmyer, Tritico & Clary, 4300 Scotland,
Houston, Texas, 77007, appearing for Defendant McVeigh.
* * * * *
PROCEEDINGS
(In open court at 9:00 a.m.)
THE COURT: Be seated, please.
We have a couple of matters before bringing the jury
back. I appointed Mr. Pagliuca to consult with the witness,
Debbie Brown. Where is he?
MR. PAGLIUCA: Good morning, your Honor.
THE COURT: Are you able to tell us after -- you did
consult with Debbie Brown about her role as a witness here,
that she may be asked some questions which I suppose could
possibly incriminate her.
MR. PAGLIUCA: That is correct, your Honor, and I did
consult with her. I've also requested the prosecution afford
her use immunity under 18 U.S.C. 6003. That request has been
declined. I would make a similar request of the Court
understanding that in this circuit and in most circuits, the
law has been interpreted to be a judicial -- nonjudicial
function, an executive function, but I would make that request.
THE COURT: Yes, I have no authority to grant the
request.
MR. PAGLIUCA: I understand, your Honor. In spite of
the lack of any immunity, Ms. Brown has indicated a desire to
testify in this matter and is ready to proceed.
THE COURT: All right. And then you may be in the
courtroom while she's on the stand.
MR. PAGLIUCA: Thank you, your Honor.
THE COURT: Have that known to her. If you want to go
out and inform of her of that, that's fine. I've got a couple
of other matters to deal with here.
MR. PAGLIUCA: I would like to do that, your Honor.
THE COURT: All right. Please do.
Now, we have stipulations, one of which -- there are
actually two stipulations, and I was thinking there was only
one. And I think I've only reviewed one with Mr. McVeigh, that
being the testimony of Shann Woods and the two exhibits; right?
MR. NIGH: That's correct, your Honor.
THE COURT: We also have a stipulation with respect to
Jamie Carroll Gilley.
MR. NIGH: Yes, your Honor.
THE COURT: All right. And, Mr. McVeigh -- you can
remain seated for this, Mr. McVeigh.
Mr. Nigh, did you go over this stipulation with
Mr. McVeigh?
MR. NIGH: Yes, your Honor, we went over both of them.
THE COURT: All right. And you understand,
Mr. McVeigh, this also is a stipulation about what Jamie
Carroll Gilley would testify to if she did appear as a witness
and testify; and that is that she's the assistant manager of
Conoco gas station at 813 South Washington in Junction City,
Kansas, and was so employed through 1995. "From approximately
mid March, 1995, until approximately mid April, 1995, I sold
diesel fuel approximately 12 times to a customer who always
paid cash for his fuel purchases. As best I recall, he
purchased diesel fuel on those occasions in amounts ranging
from approximately 18 to $25, and I never saw him put diesel
fuel in a separate container. The customer always drove a
pickup truck, except on one occasion when he drove a beige car.
I believe this customer was always alone when I saw him.
"During April 1995, I worked alone two days a week,
Wednesday and Sunday, from 3 p.m. to 11 p.m. I recall seeing
this customer on one of those two days before the bombing in
Oklahoma City. It may have been Easter Sunday that saw the
customer --" I guess that should be "I saw," but "that saw the
customer and sold him diesel fuel, because I recall saying to
him that 'I do not generally get into the Easter holiday,' and
he said he did not care for it, either.
"A few days after the bombing in Oklahoma City, I saw
a picture of Terry Nichols on the news. I believe that Terry
Nichols is the customer I've been describing who drove a pickup
truck and always paid in cash. Of course, I cannot be sure.
"I was first interviewed by FBI agents on April 28,
1995. The agents were interested in my sales of diesel fuel
that I recall. I said that I was not certain, but that I
thought it was on Easter Sunday that I saw Terry Nichols. When
I spoke with FBI agents the following day, I said that I was
certain that I saw Terry Nichols in the late afternoon of
Easter Sunday, April 16, 1995, when he purchased diesel fuel.
I did not notice any other individuals with Terry Nichols on
that day.
"I also told agents that the purchase occurred between
5 and 6 p.m. and that I fixed the time based upon my
observation of the weather, which was intermittent rain and
clouds with an occasional sunlight just before sunset.
Business was extremely slow, so I particularly noticed Terry
Nichols drive into the station."
That's the stipulation. Do you agree with it,
Mr. McVeigh?
THE DEFENDANT: Yes, sir.
THE COURT: All right. And we already did talk about
the Shann Woods stipulation as to her testimony. And Exhibits
F9 -- Defendant's F9 and Government's 1648. Do you remember?
Okay. The other thing is the offer with respect to
the Inspector General's report concerning the FBI Laboratory.
And my ruling based on my view that the report other than the
pages that I identified yesterday did not contradict, impugn,
or impeach any of the testimony or exhibits in evidence
excepting for those pages.
You, Mr. Jones, were going to reserve -- well, to
consider that and then take a position on it this morning, as I
understand it.
MR. JONES: We have, your Honor, and our position is
that -- and we offer J403 in its entirety as evidence of
history of routine of these units of the FBI with respect to
laboratory analysis, and we stand on our offer of the entire
document rather than excerpts.
THE COURT: All right.
MR. JONES: Should the Court persist in its ruling,
then we simply ask that this be filed as a offer of proof of
what --
THE COURT: Yes.
MR. JONES: -- we did offer and kept separate of the
exhibits admitted into evidence.
THE COURT: J403 is to be taken into the record as a
proffer. And if this be error, so be it. I adhere to my
ruling that it does not contradict, impugn, or impeach any of
the testimony or exhibits excepting the possibility of that
portion which is not now being offered, so I think we're ready
to resume.
When do you want me to read these stipulations? Do
you want to do that the first thing?
MR. NIGH: Yes, your Honor. And also before I call
the first witness, I'd like to offer C64A and C65A, which are
redacted versions of the facial identification fact sheets.
THE COURT: Oh, yeah, those were discussed.
Any objection to that?
MR. HARTZLER: Mr. Mackey is not here, but I rely on
representations of defense counsel that they reached an
agreement on what should be redacted, so we have no objection.
THE COURT: So C64A and C65A.
MR. NIGH: That's right, your Honor.
THE COURT: So C64 and C65 will not be exhibits.
These are substituted for them; right?
MR. NIGH: That's correct, your Honor.
THE COURT: Where are they?
Good question; right?
MR. NIGH: They're right here, your Honor.
THE COURT: Oh, we have them.
I'll inform the jury of that.
MR. NIGH: All right.
THE COURT: Okay. Bring in the jury.
(Jury in at 9:08 a.m.)
THE COURT: Members of the jury, good morning.
We're sorry to keep you waiting for these few minutes,
but this was another time where to take a little time saved
some time. And I'll be reading to you in a moment stipulations
that have been arrived at with respect to the testimony of two
witnesses, what that testimony would be if they were here, and
that's what we've been discussing.
Also, there were exhibits that were referred to when
Mr. Rozycki was testifying, who was the FBI employee who drew
the composite drawings. And in the course of his testimony,
two documents referred to as the FBI facial identification fact
sheet that he filled out in connection with that work were
offered. There was an objection to certain portions. We have
what we say redacted that, which is a fancy way of saying took
some things out that are not relevant; and those documents are
now received documents, are now received as C64A and C65A in
substitution for what was talked about as C64 and C65. It's
something we do in cases where a document has portions of it
that are really not relevant to the issue. So we took those
portions out, and those exhibits are received.
Now, let me read to you what has been agreed as the
stipulations which is to the testimony of two witnesses who
will not come and testify in person.
First, "It is stipulated and agreed that if called as
a witness in this case, Shann," S-H-A-N-N, "Woods," W-O-O-D-S,
"would testify as follows:
"In April of 1995, I was the manager of the Conoco gas
station located at 813 South Washington Street in Junction
City, Kansas.
"In the regular course of business, the Conoco gas
station maintained the cash register tape which recorded
transactions involving fuel purchases.
"Defendant's Exhibit F9 is a photocopy of a portion of
the cash register tape maintained by the Conoco gas station for
April 16, 1995. The register tape reflects that on April 16,
1995, at 5:09 p.m., a diesel fuel sale was made.
21.593 gallons of diesel fuel were purchased at the price of
$1.029 per gallon, the total price paid was $22.22 and it was a
cash sale.
"Government Exhibit 1648 is a copy of the cash
register tape maintained by the Conoco gas station for
April 15, 1995. The entries on that tape containing the
notation 'DSL,'" which is all caps, "reflect sales of diesel
fuel at the date and time indicated."
"It's also stipulated and agreed that Jamie,"
J-A-M-I-E, "Carroll," C-A-R-R-O-L-L, "Gilley," G-I-L-L-E-Y,
"cannot appear to testify in person because she has just given
birth to a child. If called as a witness in this case, Jamie
Carroll Gilley would testify as follows:
"I am the assistant manager of the Conoco gas station
located at 813 South Washington, Junction City, Kansas, and was
so employed through 1995.
"From approximately mid March, 1995, until
approximately mid April, 1995, I sold diesel fuel approximately
12 times to a customer who always paid cash for his fuel
purchases. As best I recall, he purchased diesel fuel on those
occasions in amounts ranging from approximately $18 to $25, and
I never saw him put diesel fuel in a separate container.
"The customer always drove a pickup truck, except on
one occasion when he drove a beige car. I believe this
customer was always alone when I saw him.
"During April, 1995, I worked alone two days a week,
Wednesday and Saturday --" excuse me -- "Wednesday and Sunday,
from 3 p.m. to 11 p.m. I recall seeing this customer on one of
those two days before the bombing in Oklahoma City. It may
have been Easter Sunday that I saw the customer and sold him
diesel fuel because I recall saying to him that I do not
generally get into the Easter holiday, and he said he did not
care for it, either.
"A few days after the bombing in Oklahoma City, I saw
a picture of Terry Nichols on the news. I believe that Terry
Nichols is the customer I have been describing who drove a
pickup truck and always paid in cash. Of course I cannot be
sure.
"I was first interviewed by FBI agents on April 28,
1995. The agents were interested in any sales of diesel fuel
that I recall. I said that I was not certain but that I
thought it was on Easter Sunday that I saw Terry Nichols.
"When I spoke with FBI agents the following day, I
said that I was certain that I saw Terry Nichols in the late
afternoon of Easter Sunday, April 16, 1995, when he purchased
diesel fuel. I did not notice any other individuals with Terry
Nichols on that day.
"I also told agents that the purchase occurred between
5 and 6 p.m. and that I fixed the time based upon my
observation of the weather, which was intermittent rain and
clouds with occasional sunlight just before sunset. Business
was extremely slow, so I particularly noticed Terry Nichols
drive into the station."
That's the stipulated testimony of these witnesses,
and you will accordingly accept that as testimony in the same
sense as all of the other testimony presented to you in the
course of this trial.
And we have these exhibits to be received, the
exhibits referred to in the stipulation?
MR. NIGH: Yes, your Honor.
THE COURT: Agreed? Both the Government's and the
Defendant's.
MR. HARTZLER: They're agreed.
THE COURT: All right. They're received.
Now, the next witness.
MR. NIGH: Debbie Brown, your Honor.
THE COURT: All right. Deborah Brown.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(Deborah Brown affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: Deborah Brown, B-R-O-W-N.
THE COURTROOM DEPUTY: Thank you.
THE COURT: Mr. Nigh.
MR. NIGH: Thank you, your Honor.
DIRECT EXAMINATION
Deborah Brown - Direct
BY MR. NIGH:
Q. Good morning, Miss Brown.
A. Morning.
Q. First of all, would you tell us where you currently live,
in what city.
A. In Seattle, Washington.
Q. How long have you lived in Seattle?
A. October will be two years.
Q. Before you lived in Seattle, did you live in Kingman,
Arizona?
A. Yes.
Q. Was it when you were in -- what grade were you in when you
moved to Kingman?
A. I was in the sixth grade.
Q. In the sixth grade?
A. Yes.
Q. Did you essentially grow up in Kingman?
A. Yes.
Q. And attended school there through high school?
A. Yes.
Q. When you were in school there in Kingman, did you come to
know Michael Fortier?
A. Yes.
Q. What time or how old were you approximately, when you met
Mr. Fortier?
Deborah Brown - Direct
A. It was when I was in the sixth grade. I'm not sure what
that would be, probably 12. I'm not --
Q. Did you continue to know Mr. Fortier through the time that
you were in school?
A. Yes.
Q. Eventually after high school -- let me go back for a
second. Did you know Lori Fortier during that period of time
at all?
A. No.
Q. Now, after high school, did there come a time where you
opened a business in Kingman?
A. Yes.
Q. What was the name of the business?
A. The Beach Club.
Q. Would you describe for us what kind of business The Beach
Club was.
A. It was a tanning salon. We sold some swimsuits and a few
things along that line.
Q. So people would come in and lay in the tanning bed and get
bronzed?
A. Yes.
Q. Was there a whole lot of need for a tanning salon in
Kingman, Arizona?
A. I felt there was, yes.
Q. All right. Let me show you, if I may, what's been marked
Deborah Brown - Direct
for identification as P138.
MR. NIGH: P138. And I can use the ELMO.
BY MR. NIGH:
Q. If you'll look on that television screen in front of you.
Do you see that?
A. Yes.
Q. Do you recognize what's depicted in the photograph?
A. Yes.
Q. Is that the marquee sign for The Beach Club tanning salon
and the other businesses that are there in the strip mall?
A. Yes.
Q. Is that how it appeared during the fall of 1994?
A. Yes.
MR. NIGH: Your Honor, I'd move for the admission of
P138.
MR. HARTZLER: I'm sure I have no objection -- oh,
we've got it now.
No objection.
THE COURT: All right. P138 received.
MR. NIGH: May I publish it?
THE COURT: Yes.
BY MR. NIGH:
Q. There were some other businesses there in the same strip
mall; is that correct?
A. Yes; that's correct.
Deborah Brown - Direct
Q. Now, let me show only you, if I may, what's been marked for
identification as P139.
Do you recognize what's depicted in that photograph?
A. Yes.
Q. And is that a picture of The Beach Club tanning salon
itself?
A. Yes, it is.
Q. Is that how it appeared during the fall of 1994?
A. Yes.
MR. NIGH: Your Honor, I'd move for the admission of
P139.
MR. HARTZLER: No objection.
THE COURT: Received, may be published.
BY MR. NIGH:
Q. Ms. Brown, there is a light pen there on the witness stand
in front of you. It's a black pen that has a string on it.
Would you put that under the glass and show us about where The
Beach Club tanning salon stopped and the business next door to
it started.
A. Sure. Do I need to push that button, no?
Q. I think you just write on the glass. Put it up against the
glass below.
A. Approximately right in here.
Q. All right.
A. Right before the corner there.
Deborah Brown - Direct
Q. Okay. Now, there's a business that appears to be to the
left in the photograph. What is that business?
A. That used to be a Christian book store, sold novelty
things. Then the Mail Room next to it.
Q. Okay. Would you circle for us the Mail Room, please.
All right. Thank you. If you'll push the button on
the pen, those marks will go away.
There you go.
Ms. Brown, did there come a time when you met Lori
Fortier?
A. Yes.
Q. Approximately when was that?
A. It was approximately April of 1993.
Q. Was that in connection with The Beach Club tanning salon?
A. Yes.
Q. What happened in reference to Ms. Lori -- Ms. Fortier and
The Beach Club?
A. She was referred by a friend of the family, a relative of
my boyfriend, to come down and see if we might need anyone
because she had been looking for a job for a while. And she
recommended her to me. Said she was a good person.
Q. Did you hire her as a result of that?
A. Yes.
Q. When approximately was it that you hired Miss Fortier?
A. Approximately May of '93. Maybe late April.
Deborah Brown - Direct
Q. How long did Miss Fortier continue to work for you there at
The Beach Club?
A. Through August of '94.
Q. While she was working for you there at The Beach Club, did
you become familiar with Tim McVeigh?
A. Yes.
Q. How did that come about?
A. He was coming -- he was moving back to town, and Lori
brought him in to introduce him to me when he came back.
Q. How did she introduce him?
A. "This is a good friend of ours, Tim McVeigh. He's going to
be the best man at our wedding."
Q. After that, did you see Mr. McVeigh on occasion?
A. Yes.
Q. How often?
A. It varied. Sometimes I'd see him once a week, sometimes
more often.
Q. Did he pick his mail up anywhere there in the vicinity?
A. Yes.
Q. Where was that?
A. At the Mail Room.
Q. Did there come a time during the period that Miss Fortier
worked for you that you became aware that she and Michael
Fortier were involved in drug use?
A. Yes.
Deborah Brown - Direct
Q. How did that come about?
A. Lori had told me about a trip that Michael and her had
taken to the river, Laughlin, and how they were high the whole
time on marijuana and methamphetamine.
Q. Approximately when did that conversation occur?
A. The first part of 1994.
Q. After that, did you have occasion to see Miss Fortier use
methamphetamine or other drugs?
A. Yes.
Q. How often did that occur?
A. How often did I see her or know she was doing it? Almost
every day.
Q. When did that begin?
A. That began from the minute that I found out that she was
doing it. She pretty much had it from there on out. She may
have had it before, but I just didn't know.
Q. So that we're clear about this, were you yourself using
methamphetamine during that period of time?
A. Yes, I was.
Q. Were you using it as often as Miss Fortier was using it?
A. No, I would say I was not.
Q. Did Michael Fortier participate in the use of
methamphetamine --
A. Yes.
Q. -- during the same period of time?
Deborah Brown - Direct
A. Yes.
Q. How would that come about?
A. I wouldn't --
Q. In other words, how did you know that or where did it
occur?
A. It occurred at my business, The Beach Club. It also
occurred at a tanning convention in Las Vegas. Pretty much
just whenever all three of us were together.
Q. Where would Miss Fortier utilize methamphetamine when she
was at your business?
A. Where would she do it?
Q. What part of the business?
A. She would go into the rest room.
Q. Did you obtain any methamphetamine from Michael or Lori
Fortier?
A. Yes.
Q. How much methamphetamine would you obtain from -- well,
first of all, which one of them would you obtain it from?
A. Both.
Q. And how much would you obtain at a time?
A. 1 gram.
Q. Was it a gift from them, or did you pay for it?
A. I paid for it.
Q. How much did you pay for 1 gram of methamphetamine?
A. It ranged on -- between 80 and a hundred dollars depending
Deborah Brown - Direct
on when they were trying to get rid of it and how quickly they
needed to get rid of it.
Q. Approximately how many occasions did you purchase a gram of
methamphetamine from Michael and Lori Fortier?
A. Approximately between five and ten times.
Q. During -- sometime during the course of the summer or fall
of 1994, did you negotiate a business transaction with the
Fortiers?
A. Yes.
Q. What kind of a -- what was that transaction about?
A. They knew that I was going to be moving to Las Vegas. We
were buying a house up there. And they -- they approached me
about buying the tanning salon. And -- that was the first I
really thought about selling it. We just came up with a price
and went from there.
Q. Let me place in front of you what's been marked for
identification -- first of all, before I do that, let me ask
you, was there ever a writing prepared to memorialize the
negotiations that you had with the Fortiers?
A. Yes.
Q. Now let me show you, if I may, what's been marked for
identification as P168.
Do you recognize that?
A. Yes.
Q. Is that the contract that you negotiated with Michael and
Deborah Brown - Direct
Lori Fortier for the purchase of The Beach Club tanning salon?
A. Yes.
Q. And is it dated July 17 of 1994?
A. Yes.
MR. NIGH: Your Honor, I'd move for the admission.
P168.
MR. HARTZLER: No objection.
THE COURT: Received. P168 may be published.
BY MR. NIGH:
Q. Whose handwriting is this in, Miss Brown?
A. Lori Fortier's.
Q. And it appears that the price reflected in this contract is
$70,000; is that right?
A. That's correct.
Q. How was the price to be paid?
A. $35,000 up front, and I was willing to make terms with them
for the other 35.
Q. And are those terms set forth in this document?
A. Yes.
Q. They were to pay a monthly payment of $194.57 until $35,000
was paid?
A. Yes.
Q. Did the Fortiers perform on this contract?
A. No.
Q. When was it that it became apparent that they were not
Deborah Brown - Direct
going to perform?
A. In August of 1994.
Q. How did they feel about that -- how did they express to you
that they felt about that?
A. They were very upset. Lori cried on several occasions
because of it. She was embarrassed because she had told people
in the community that she would -- was purchasing it. We
actually had even gone through some of the paperwork. The
cosmetology license was switched into her name. She was pretty
sure that she was going to be obtaining the business.
Q. Why did they not obtain the business?
A. They didn't obtain the business because in order for them
to get the loan, they were -- they would have to put her
parents' house up for collateral, and she said that she
couldn't do that to her parents just in case anything ever
happened; that was all they had.
Q. Did Ms. Fortier indicate that she was going to try again or
try to improve their financial condition?
A. Yes.
Q. What did she say in that regard?
A. I told her I would work with her, whatever she could do,
she was my choice to purchase the tanning salon. I cared about
her, and I was willing to wait and work with her.
Q. Did anything ever transpire as a result of that?
A. No.
Deborah Brown - Direct
Q. What was the Fortiers' financial condition during the fall
of 1994?
MR. HARTZLER: Objection to relevance.
THE COURT: Overruled.
THE WITNESS: Poor. They -- they didn't have very
much money at all.
BY MR. NIGH:
Q. Were they receiving any form of assistance?
A. Yes, they were assisting -- or their baby was on either
state or some kind of assistance to get formula and diapers and
that sort of thing.
Q. Did, during -- During this period of time, Ms. Brown, did
Lori Fortier ever say anything to you about dealing with the
police?
A. Yes.
Q. What did she say to you about dealing with the police?
A. On one occasion -- I was always very scared of being caught
with any kind of drugs. And she would try to reassure me that
it would be okay; that she had drugs on her all the time, she'd
been pulled over with drugs on her several times, and she has
an innocent face and she's believable and that she thinks that
I would be, also, for me to not worry.
Q. Because she had an innocent face in dealing with the
police? Is that what she said?
A. Yes.
Deborah Brown - Direct
MR. NIGH: That's all I have, your Honor.
THE COURT: Mr. Hartzler, do you have some questions?
MR. HARTZLER: Very few -- few, few, thank you.
THE COURT: All right.
CROSS-EXAMINATION
BY MR. HARTZLER:
Q. Good morning, Miss Brown.
A. Good morning.
Q. Was that a pretty tough move to go from Kingman to Seattle?
A. I actually moved from Kingman to Las Vegas and from there
to Seattle.
Q. And you're happy in Seattle now?
A. Yes, I am.
Q. You said that you left the Kingman area, I think, sometime
in the fall of 1994?
A. We were having a house built during the time that Lori was
trying to purchase The Beach Club in Las Vegas. My boyfriend
and I were planning to move there. We actually moved into our
home in October of '94.
Q. So you moved in the fall of '94?
A. Yeah.
Q. Did you attend the Fortiers' wedding?
A. Yes.
Q. And let me ask you a little bit about Michael Fortier's
appearance. Did it change with some regularity?
Deborah Brown - Cross
A. I'm not sure what you're asking me.
Q. Well, sometimes he would be grungy and unshaven, and then
other times he could clean his act up and look pretty nice?
A. On special occasions, I've seen him look pretty nice.
Q. So on his wedding, for example, he was clean-shaven, well-
groomed?
A. Yes.
Q. And on other occasions, he would let his beard grow, his
hair grow?
A. Yes.
Q. I'd like to show you, and I'm not sure of the easiest --
MR. HARTZLER: Let me tender to defense counsel what's
marked as Government's Exhibit 1561. And if we may just show
it to the witness.
THE COURT: Yes, show it to the witness.
BY MR. HARTZLER:
Q. You see it on your screen there, a photograph?
A. Yes.
Q. Can you identify those two people?
A. That's Mike and Lori.
Q. And do you know when that photograph was taken?
A. At their wedding.
MR. HARTZLER: We move the admission of Government
Exhibit 1651.
MR. NIGH: No objection, your Honor.
Deborah Brown - Cross
THE COURT: 1561 is received, may be published to the
jury.
MR. HARTZLER: Thank you.
BY MR. HARTZLER:
Q. And remind us, if you can, of the date of the wedding.
A. I don't recall.
Q. End of July, 1994?
A. Approximately.
Q. Before you left Kingman; right?
A. Yes.
Q. And then there would be times when he would -- Michael
Fortier would grow his beard and let his hair grow long; right?
A. Most of the time, yes.
Q. Most of the time he looked pretty grungy around Kingman?
A. He had -- yes, the grunge look.
Q. Okay, thank you.
You said that this contract negotiation terminated in
the fall of 1994; is that right?
A. Yes.
Q. So you sold the club before you left?
A. No.
Q. Is it still under your ownership?
A. No.
Q. So it's been sold or closed?
A. No. It actually -- my boyfriend at the time -- his mother
Deborah Brown - Cross
decided that she was going to just take it. She forged some
documents and put her name on it, forged my name, and took the
business, basically told me, If you want it back, go get
yourself some lawyers.
Q. Okay. Just so I understand the background of this, you had
about, what was it, 25,000 in fixtures and inventory in the
club at the time you were offering to sell it; is that fair?
A. Approximately, yes.
Q. And there was no real estate; it had a lease on that
location that we saw in the photographs; is that right?
A. Yes.
Q. So the only assets of the company were the fixtures and
inventory, worth about 25,000; is that right?
A. Yes.
Q. So the additional . . . it would be $45,000 was in
goodwill; you would have the goodwill of the company, about
$45,000. Is that how you came up with the figure of $70,000?
I was just subtracting 25,000 --
A. We kind of came up with it that way. Lori had approached
me to buy the salon. I wasn't going to sell it at the time.
That's the number we came up with.
Q. But these negotiations were completely finished and had
come to an end in the fall of 1994; is that right?
A. It was always left open-ended.
Q. It was still open-ended today?
Deborah Brown - Cross
A. Not today. It was until Phyllis actually took it over,
which was probably a year and a half after that. It was after
the reason why we're here. She took it over.
Q. But there's nothing about the possibility of their
purchasing this club that influences your testimony today. Is
that not fair?
A. No. Nothing would influence my testimony today.
Q. You understand, of course, that you are now under oath?
A. Yes.
Q. And because you're under oath, you understand your
obligation to tell the truth?
A. Yes.
Q. And it's for that reason that you have freely admitted your
drug use; is that right?
A. Yes.
Q. And you wouldn't lie about your drug use when you came in
here and testified; is that not true?
A. That's true.
Q. But I take it it's not something you're particularly proud
of?
A. No.
Q. Not something you tell the police about when you encounter
them in a traffic stop?
A. No.
Q. It's because you've been called into the courtroom and
Deborah Brown - Cross
you've been placed under oath --
A. It's because --
Q. -- and it's because you've been asked about it?
A. It's because I feel I've been called here to tell the
truth; and for both sides' fairness, I think Tim should get a
fair trial, whether that be incriminating myself or not.
Q. Right, I'm just talking about -- it's not information you
would volunteer around the community and certainly not to law
enforcement officers, if you're stopped for a traffic stop?
A. That's fair. I haven't been stopped before.
Q. But Lori Fortier said that she had been stopped?
A. Yes.
Q. And she indicated to you that she wasn't particularly
concerned about what could happen to her because of this drug,
this possession of drugs; is that not true?
A. Yes.
Q. Now, this methamphetamine -- and I don't mean to suggest
I'm in any way condoning its use, but it's not an
hallucinogenic drug. Is that not true?
A. For myself, it wasn't. I can't speak for other people.
Q. Okay. It kind of makes you, it makes your system --
A. It gave me more energy.
Q. It increases your energy?
A. Yeah.
Q. Makes you a little wired?
Deborah Brown - Cross
A. Yes.
Q. Wouldn't cause you to lie about things?
A. It could.
Q. Didn't cause you to lose any memory, did it?
A. No.
Q. And the fact that you've used drugs hasn't influenced your
testimony here today, has it?
A. No.
MR. HARTZLER: I have nothing further.
THE COURT: Any redirect, Mr. Nigh?
MR. NIGH: No, your Honor. Thank you.
THE COURT: Witness excused, then?
MR. NIGH: Yes, please.
THE COURT: Agreed, Mr. Hartzler?
MR. HARTZLER: Yes. Thank you, your Honor.
THE COURT: You may step down. You're excused.
MR. NIGH: May her attorney be excused, if he wishes,
during this time?
THE COURT: Yes.
Yes. Mr. Pagliuca, you're excused.
MR. JONES: Your Honor, we've reached that point in
the proceedings where we're going to play certain tape
recordings, and I believe the Government has agreed to waive
the foundation --
THE COURT: Yes.
MR. JONES: -- on the matters, and they may simply be
played. And we've also reached agreement, I believe, on what
portion may be played.
THE COURT: Are we ready to proceed?
MR. JONES: Yes, we are.
THE COURT: Have the tapes been marked in some way so
that we can make a record on it?
MR. NIGH: Yes, they have, your Honor. The first one
I would offer is Exhibit P203, which is a conversation on
April 29 of 1995, between Michael Fortier and Glen.
THE COURT: This is simply an audible tape?
MR. NIGH: That's correct.
THE COURT: And is this one of those tapes done while
there was a listening device?
MR. NIGH: That's correct, your Honor.
THE COURT: Agreed?
MR. HARTZLER: We agree.
THE COURT: The Government stipulates to that?
MR. HARTZLER: Yes.
THE COURT: All right.
MR. NIGH: Your Honor, if we might inform the Court,
the sound quality is a little worse than the rest of the tapes,
and I wanted the Court to be aware that. It improves with the
next three tapes. And the total time of the tapes, so the
Court will know, is approximately an hour and 15 minutes for
four tapes.
THE COURT: Well, we'll take a break at somewhere,
then, and we'll try to have patience with the sound.
MR. NIGH: Thank you, your Honor, I appreciate that.
Your Honor, I misspoke. P203 is actually April 30 of
1995, instead of April 29.
THE COURT: All right.
MR. NIGH: If we could play that.
THE COURT: And this was in the Fortiers' residence.
MR. NIGH: Yes, your Honor; and it's a telephone
conversation.
THE COURT: All right.
THE COURTROOM DEPUTY: Do you want the ELMO on, or
video? ELMO?
MR. NIGH: Technical difficulties.
THE COURT: Don't look at me to help.
THE COURTROOM DEPUTY: Audio mute is off.
THE COURT: You can come up to assist here, if you
want.
(Defendant's Exhibit P203 played.)
THE COURT: May we have a stipulation that the Exhibit
P203 and these other exhibits will constitute the record rather
than requiring the court reporter to try to take all this down?
MR. NIGH: Yes, your Honor.
THE COURT: Is that agreed, Mr. Hartzler?
MR. HARTZLER: Of course. She was trying to do it?
THE COURT: I didn't look. But I think it's an
impossible task.
All right. The next --
MR. NIGH: Next, your Honor, I would offer Defendant's
Exhibit P202, a telephone conversation on April 28, 1995,
between Michael Fortier and Lonnie Hubbard.
THE COURT: And about how long is this one?
MR. NIGH: This one is 18 minutes, your Honor.
THE COURT: All right.
Play it.
(Defendant's Exhibit P202 was played.)
THE COURT: We'll take the recess at this point, it
being about midmorning. So, members of the jury, we'll take
our usual 20-minute break during which, of course, continue to
follow the Court's admonitions given at all earlier recesses,
remembering that the trial is not yet complete.
You're excused now, 20 minutes.
(Jury out at 10:14 a.m.)
THE COURT: We'll be in recess.
(Recess at 10:15 a.m.)
(Reconvened at 10:35 a.m.)
THE COURT: Be seated, please.
Are we ready for the jury?
MR. JONES: Yes, your Honor.
THE COURT: All right.
(Jury in at 10:35 a.m.)
THE COURT: Mr. Nigh, the next tape.
MR. NIGH: Next, your Honor, is Defendant's Exhibit
P201, a telephone conversation on April 25, 1995, between
Michael Fortier and John Fortier. The time of this tape is
approximately 3 minutes.
THE COURT: All right. It's received, may be played.
(Defendant's Exhibit P201 played.)
MR. NIGH: The last audiotape, your Honor, is
Defendant's Exhibit P204, conversation on May 8, 1995.
Telephone conversation between Michael Fortier and Lonnie
Hubbard. The running time on this tape is approximately 9
minutes.
THE COURT: All right.
(Defendant's Exhibit P204 played.)
MR. NIGH: Your Honor, finally, there is a videotape
of a television interview on April 26, 1995. It's Exhibit
P175.
THE COURT: P175?
MR. NIGH: Yes, your Honor.
THE COURT: Received. You may play it.
(Defendant's Exhibit P175 played.)
MR. NIGH: Your Honor, I think Mr. Jones has messed up
the audio.
THE COURT: Try again?
MR. NIGH: Yes, your Honor.
(Defendant's Exhibit P175 played.)
MR. JONES: Your Honor, I believe we have an agreement
with the Government that -- I need to move over here a little
closer to Mr. Hartzler -- that P270 may come in.
MR. HARTZLER: 750.
MR. JONES: I'm sorry. 750.
THE COURT: P750.
MR. JONES: Yes, your Honor.
THE COURT: Received.
MR. JONES: And also McVeigh Exhibit --
MR. HARTZLER: P751.
MR. JONES: -- 751, which is a copy of Armed and
Dangerous from Mr. Nichols' house; and I think we have an
agreement on this that this color on it and red tags are the
fingerprint tape or powder or whatever it was and was not on
the original.
MR. HARTZLER: That's correct.
THE COURT: P751 is received with the stipulation.
MR. JONES: And, your Honor, we have McVeigh Exhibit
H1 and O-70, which the Government objects on the grounds of
relevancy but not foundational ground; and may I simply pass
these to the Court for a ruling?
THE COURT: Yes.
The objections are sustained. The exhibits excluded,
H1, O-70.
MR. JONES: And, your Honor, we have an agreement to
admit C70 -- I'm sorry -- 750.
MR. HARTZLER: 750.
THE COURT: All right.
MR. JONES: May I give these exhibits to the clerk?
THE COURT: Certainly.
C750 is received by agreement.
MR. JONES: If I might have one moment, your Honor.
THE COURT: Yes.
MR. JONES: The defense rests.
THE COURT: The defense rests.
Are there rebuttal witnesses?
MR. HARTZLER: There are, your Honor. Government
calls Marife Nichols -- or recalls Marife Nichols.
THE COURT: All right. Marife Nichols.
Ms. Nichols, you were previously sworn and testified
as a witness in this case. You're now being recalled under
that same oath.
THE WITNESS: Yes.
THE COURT: You may take the stand.
(Marife Nichols was recalled.)
THE COURT: Mr. Hartzler?
MR. HARTZLER: Thank you, your Honor.
Marife Nichols - Direct
DIRECT EXAMINATION
BY MR. HARTZLER:
Q. Good morning, Mrs. Nichols. You understand that you're
testifying pursuant to the same agreement we had with you
before when you testified; is that correct?
A. That's correct.
Q. So you understand that you retain your privilege to refuse
to testify against your husband and we will not construe this
testimony as a waiver of that privilege. Correct?
A. Right.
Q. You also understand that we have agreed not to use anything
you say here today directly against your husband. Is that
correct?
A. Yes.
Q. I also have advised you that I will not ask you about any
of your conversations with your husband, so that I'm not trying
to elicit anything that he said to you. You understand?
A. Yes, I do understand.
Q. Thank you.
When you previously appeared here, you testified about
activities that occurred on Easter Sunday, 1996. You remember?
A. Yes.
Q. I believe you said you went to church and then talked about
what happened that afternoon.
A. Yes.
Marife Nichols - Direct
Q. I'd like to direct your attention to the day before Easter,
which would be Saturday, April 15, 1995. Did I say '94? 1995.
A. Okay.
Q. Are you familiar with that date, and do you have a
recollection of what happened?
A. Not much right now.
Q. Okay. Did you ever make a recording, any kind of written
record, of your activities on that day when they were still
fresh in your mind?
A. Yes.
Q. And at that time, did you record those activities to the
best of your recollection at that time?
A. Yes.
Q. I'd like to show you, if I may approach or hand the clerk,
what's been marked as Government's Exhibit 1649 and ask if you
can identify this document.
Can you identify that, Mrs. Nichols?
A. This is my handwriting that I wrote probably two, three
weeks before the incident.
Q. Two or three weeks? I didn't hear the -- two or three
weeks what?
A. Two, three weeks before the bombing.
Q. Okay.
A. Oh, after the bombing. I'm sorry.
Q. Okay. Thank you. And this records the events -- this is a
Marife Nichols - Direct
page from a diary that you prepared? Is that right?
A. Yes.
Q. This is the date -- page 4 of the activities on April 15,
1995, Saturday; is that right?
A. That's right.
MR. HARTZLER: Your Honor, I move this pursuant to
Rule 803 as prior recorded recollection, which I would ask that
it be admitted not for purposes of publication but for simply
to read it -- read the relevant portions pursuant to the rule.
MR. JONES: I don't think I have any objection to
that, but may I ask Mr. Hartzler -- may I confer with him as to
what is the relevant portion?
THE COURT: Yes, you may.
(Discussion off the record between Mr. Hartzler and
Mr. Jones.)
MR. JONES: No objection.
THE COURT: All right. You may proceed.
MR. HARTZLER: If I may, your Honor, I'll read the
relevant portions and ask Mrs. Nichols to confirm.
THE COURT: Yes.
BY MR. HARTZLER:
Q. This recorded recollection of the events of September (sic)
15, 1995, reads beginning at the entry for 11:30 as follows:
"Left the house, went to Junction City. Stop at Conoco
gasoline station."
Marife Nichols - Direct
Is that correct so far?
A. Yes.
Q. And do you recall stopping at that Conoco station on
Saturday, April 15, 1995?
A. Not right now.
Q. It goes further to describe that you went to Manhattan to
get the mail, went to Kinko's to have a business card -- I
can't read the next word. "Sticker" -- or sticker with your
address?
A. Yes.
Q. I've been advised that I referred to it as September 15.
It's April 15. Is that right? It says right on top of the
record.
A. April 15.
Q. I beg your pardon?
A. Yes, it is April 15.
Q. April 15, which would be the day before Easter on Saturday.
A. Yes.
Q. Right?
And the rest of the record reflects activities in
terms of going to Wal-Mart, two different Wal-Marts; right?
A. Yes.
Q. And do you recall that you went home after that?
A. That's correct.
Q. Okay. And you and your husband stayed home that evening;
Marife Nichols - Direct
is that right?
A. That's right.
Q. And then you've already told us about getting up the next
morning and what you did on Easter Sunday.
A. Yes.
MR. HARTZLER: Nothing further, your Honor.
MR. JONES: I just have a few questions. May I just
stand here?
THE COURT: Yes.
CROSS-EXAMINATION
BY MR. JONES:
Q. Ms. Nichols, you prepared this memorandum that Mr. Hartzler
read from at least two weeks after the bombing and perhaps as
long as three weeks?
A. Yes.
Q. And was this something that you prepared for the FBI?
A. No.
Q. Something you prepared for whom?
A. For myself, because I forget lots of stuff.
Q. All right. And short of what you wrote here, you have no
memory of this today?
A. That's correct.
Q. On this -- when you say that you left the house at 11:30,
you went straight to Junction City?
A. Yes.
Marife Nichols - Cross
Q. And then the first place you went to in Junction City was
the Conoco service station?
A. Yes. That's what I wrote.
Q. All right. So by your memory, the latest you would have
been at the station was 12:30?
A. Perhaps, yes.
Q. Yes. Because it's about 30 minutes from Herington to
Junction City, isn't it?
A. Yes.
Q. And you went to the station first?
A. Yes.
Q. All right. Are you satisfied that you would have been
there by 12:30?
A. Yes.
MR. JONES: Thank you. Nothing further.
MR. HARTZLER: She may be excused.
THE COURT: Agreed to excuse the witness?
MR. JONES: Yes, your Honor. Thank you.
THE COURT: You may step down. You're now excused.
THE WITNESS: Thank you, your Honor.
THE COURT: I might just explain --
You can leave.
I might just explain to the jury that what has just
been done here is what we call the "recorded recollection
exception" to the hearsay rule. What is written there would
normally be hearsay; but when a witness does not have enough
recollection today about previous events to be able to testify
fully and accurately about them and has previously made a
record to reflect that knowledge, then under those
circumstances, that record made by the witness can be read into
evidence because of the insufficient present recollection; and
that was done here.
Next?
MR. HARTZLER: James Hawkins.
THE COURTROOM DEPUTY: Raise your right hand, please.
(James Hawkins affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: James M. Hawkins, H-A-W-K-I-N-S.
THE COURTROOM DEPUTY: Thank you.
THE COURT: Mr. Hartzler.
MR. HARTZLER: Thank you, your Honor.
DIRECT EXAMINATION
BY MR. HARTZLER:
Q. Mr. Hawkins, how are you employed?
A. I'm a special agent with the FBI.
Q. How long have you had that position?
A. 25 years.
Q. Where are you currently working?
James Hawkins - Direct
A. I'm currently assigned to the Tulsa resident agency in
Oklahoma.
Q. And how long have you been assigned to the Tulsa resident
agency?
A. Well, I've been there since January of 1990. I was
assigned to the OKBOMB Task Force here for a year. I went back
there in May of last year, May 6 of last year, and have been so
assigned since then.
Q. You got a promotion and went back to Tulsa?
A. Yes, I am the supervisor for the office in Tulsa.
Q. So for approximately how long were you working on the
investigation of the Oklahoma City bombing?
A. From April 19 of 1995, till about May 6 of '96, I believe.
Q. In your capacity as one of the agents that worked on this
case, did you conduct any investigation to determine the
capacity of the diesel gas tank or diesel fuel tank in Terry
Nichols' truck?
A. Yes.
Q. What did you do?
A. I -- in August, I believe, of '95, I had the vehicle towed
to a garage in Oklahoma City, downtown Oklahoma City.
Q. Did you make any efforts to determine the capacity before
you had the vehicle towed?
A. Yes. I -- there was an owner's manual in the glove
compartment of the vehicle and I consulted that, determined
James Hawkins - Direct
that according to the manual, the tank held 20 gallons.
MR. JONES: If the Court please, I'm going to object
to this as hearsay.
THE COURT: Sustained.
BY MR. HARTZLER:
Q. And after you reviewed the owner's manual, tell us what you
did in terms of towing the vehicle.
A. I arranged to have the vehicle towed to a garage in
downtown Oklahoma City and arranged for a mechanic at that
garage to have the vehicle put up on a lift and arranged to
have the vehicle tank drained completely to ascertain what
quantity of fuel it would hold after it completely drained.
Q. And did you witness the draining of the fuel tank?
A. Yes.
Q. After the fuel tank was drained, what did you observe?
A. The mechanic that drained the tank took -- he used a milk
gallon carton, a plastic container, and refilled that container
ten times, put 10 gallons of diesel into the tank, and after
transported it or drove it to a station about 5 miles out of
the downtown area and topped it off with diesel fuel.
Q. And what was your purpose in topping off the tank?
A. I wanted to ascertain exactly how much that vehicle would
contain, the tank itself.
Q. Now, recognizing that a small amount of diesel would have
been used in your 5-mile trip to the gas station, you arrived
James Hawkins - Direct
there with something short of 10 gallons in the tank. Is that
right?
A. Yes, sir.
Q. And how many gallons of diesel fuel were you able to pump
into the tank at that station?
A. 11.187, I believe.
Q. So the total amount of fuel that you witnessed being put
into that gas tank, topping it off from being completely
drained, was what on that day?
A. 21.187.
Q. I'd like to show you, if I may obtain assistance, what's
previously been entered into evidence as Defense Exhibit F9.
Do you see in the center of the -- this is a cash register
receipt for a purchase of diesel fuel on April 16, 1995, for a
total of 21.593 gallons. Do you see that?
A. Yes, sir.
Q. And let me ask Agent Hersley to simply write beside this
copy of that document the number or what I should say is the
number of gallons that you were able to put into that tank to
top it off, to fill it, from being drained.
A. Yes, sir.
Q. What was the total number you put in the day you did this?
A. 21.187.
Q. So in comparing those two numbers, is that fuel tank --
does that fuel tank have enough capacity to receive
James Hawkins - Direct
21.593 gallons?
A. No, sir.
Q. I'd like to show you first of all --
MR. HARTZLER: We should mark this as our next,
Government's Exhibit 1652, simply the new exhibit with the
handwriting on it.
May we offer that as 1652.
THE COURT: Well, what did you write on? A copy of
the exhibit?
MR. HARTZLER: Yes, yes.
THE COURT: All right. Then is there any objection to
1652?
MR. JONES: No, your Honor, not at all.
THE COURT: It's received.
BY MR. HARTZLER:
Q. Now, I'm showing you a page from an exhibit that's
previously been admitted as Government's Exhibit 1648. And you
see that it reflects a diesel purchase on 4-15-95 at 12:15.
The purchase is for 14 gallons -- 14.586 gallons. Is that what
you see?
A. Yes, sir.
Q. Did the fuel tank in Terry Nichols' truck have sufficient
capacity to accept that much diesel fuel?
A. Yes, sir.
MR. HARTZLER: Nothing further.
THE COURT: Any cross-examination?
MR. JONES: I don't have any questions of this
witness.
THE COURT: All right. Then I take it he's excused.
MR. HARTZLER: He's excused.
THE COURT: You may step down. You're excused.
MR. HARTZLER: The Government calls Steven Burmeister.
THE COURT: Mr. Burmeister, you also have previously
been sworn and testified, and you return to the stand under
that oath.
THE WITNESS: Yes.
(Steven Burmeister was recalled.)
DIRECT EXAMINATION
BY MS. WILKINSON:
Q. Mr. Burmeister, you were present when Dr. Whitehurst and
Dr. Lloyd were testifying yesterday, weren't you?
A. Yes, I was.
Q. I would like to address some of the issues that they raised
with you or they raised in their testimony yesterday.
When you have tested items in the laboratory for
explosive residue, do you have a policy as to what you do when
you receive items in a cardboard box?
A. Yes, I do.
Q. Do you recall back in May of 1995 when you received
Mr. McVeigh's clothing for testing?
Steven Burmeister - Direct
A. Yes, I do.
Q. Were those items in plastic bags?
A. Yes.
Q. How were the plastic bags transported to you?
A. They were received in a cardboard box.
Q. Was it your understanding that that was the same cardboard
box that had been used to transport them from Noble County
Jail?
MR. TRITICO: Excuse me. I'll object to that
question. It calls for speculation on the part of witness
and/or hearsay.
THE COURT: Sustained.
BY MS. WILKINSON:
Q. Agent Burmeister, as part of your review of Mr. McVeigh's
clothing, did you determine the chain of custody for those
items?
A. Yes.
Q. And as part of that, did you discuss with others how those
items had been transported from Noble County Jail to the
laboratory?
MR. TRITICO: I'll object to that question. It calls
for a hearsay response.
THE COURT: Sustained.
MS. WILKINSON: I didn't ask him for the conversation,
your Honor, just for did he have that discussion.
Steven Burmeister - Direct
THE COURT: Well, what point is there if he can't
testify to the discussion?
MS. WILKINSON: I'll move on.
BY MS. WILKINSON:
Q. Agent Burmeister, you said you received the clothing in a
box. Is that correct?
A. Yes.
Q. What did you do to that box when you received it?
A. As part of my procedures, when I receive a cardboard box at
any time, the first thing that I will do is actually examine
the exterior of the box.
Q. Why do you do that?
A. Well, it's a procedure that I employed. I've had it in
place now for quite some time, to examine the outside of the
box for any possibility of explosive residue being on the
exterior of the box. That's the first thing that I will do
before actually entering into the box.
If I have a positive, that's when I'll make a note of
it.
Q. And when you have a positive, what do you mean?
A. If I get a positive detection of an explosive residue,
that's when I'll make a note in my records that there is indeed
a positive, and that's for the explosives that I will be
looking to.
Q. So back in May of 1995, when you received Mr. McVeigh's
Steven Burmeister - Direct
clothing, did you test the box that contained the items in the
plastic bags?
A. Yes, I did.
Q. What were the results?
A. There was nothing on the exterior of the box.
Q. Now, you are familiar with the contamination study that
Dr. Whitehurst discussed yesterday that occurred in May of
1995; correct?
A. Yes, I am.
Q. And you told us during your original testimony that you had
reviewed that study; is that right?
A. That's correct, yes.
Q. And were you able to determine if the bench that was tested
in the Explosives Unit that tested positive for explosives
residue was Mr. Mills' bench?
A. I've reviewed those photos; and that particular photo was
not Mr. Mills' bench, no.
Q. So there were no positive results of high-explosive residue
on Mr. Mills' bench. Correct?
A. That's correct, yes.
Q. Now, you also heard Dr. Whitehurst say that -- or at least
start to say that he believed that there are some smokeless
powders that contain PETN. Do you recall that?
A. Yes.
Q. Did you conduct research into that fact?
Steven Burmeister - Direct
A. Yes, I have.
Q. And did you review the article that the defense introduced
which listed smokeless -- elements that were contained in
smokeless powder?
A. Yes. I examined that particular article. Yes.
Q. And did you also examine other treatises on explosives and
explosive residues?
A. Yes.
Q. What other treatises did you examine?
A. The other one was a document by Dr. Yinon, his textbook.
Other textbooks, Urbanski, that wrote on explosives, as well as
an article in the Picatinny Arsenal.
Q. Are those all known experts and known treatises in your
field?
A. Yes. They're kind of the -- the set of bibles that we
would use for our profession.
Q. And what did you determine about whether there is currently
PETN being used in smokeless powder?
A. There is no current use in smokeless powder for PETN.
Q. And why -- did you determine why the article that the
defense introduced listed PETN as an element of smokeless -- a
possible element of smokeless powder?
A. Yes.
Q. What did you determine?
A. In looking back, there was at one time a chart that was
Steven Burmeister - Direct
prepared by the FBI, and it was prepared in 1985, and the
particular chart actually listed it as "smokeless
powders/explosives." And it was a list of items that (1) it
gave the molecular weights of those particular materials; and
it was just for -- an examination chart for using it for
instrumental purposes. And it was derived, like I said, back
in 1985, only as an internal reference document.
Q. And did that document supposedly list items that were in
smokeless powder and explosives?
A. Yes. It contained both.
Q. Now, back in -- on April 22, 1995, you were not in the
laboratory, were you?
A. No.
Q. Where were you?
A. April of 1985?
Q. April of 1995. April 22, 1995.
A. I was at the crime scene.
Q. Okay. And is it your understanding in your research of the
chain of custody of the clothing that the clothing arrived at
the laboratory, Mr. McVeigh's clothing arrived at the
laboratory, on April 22, 1995?
A. Yes.
Q. And Mr. Mills checked in that clothing. Correct?
A. That's correct, yes.
Q. And who received the clothing from Mr. Mills on that day?
Steven Burmeister - Direct
A. That would have been Mr. Martz.
Q. Now, you've told us earlier that there are technicians who
assist you in your examinations; is that right?
A. Yes.
Q. What was Agent Martz' role on April 22, 1995?
A. He would have been serving as a technician role for myself
under my direction, yes.
Q. Did he collect some preliminary data on the clothing?
A. Yes, he did.
Q. And did he provide that data to you?
A. Yes.
Q. Did you review it?
A. Yes, I did.
Q. Did you conduct any additional tests?
A. Yes, I did.
Q. Are those the tests that you described for the jury during
your direct examination during the Government's case in chief?
A. Yes.
Q. And did you also review Agent Martz' work with him
personally?
A. Yes, I have.
Q. Did you review the chromatograms and other charts that he
provided and prepared in his preliminary analysis?
A. Yes, I did.
Q. Now, when you receive that type of data from technicians,
Steven Burmeister - Direct
who analyzes the data?
A. Well, it's ultimately the examiner -- is the primary
individual who will review the charts and data. And it's that
person who will actually decide whether additional work is
required to go back and do further examination, or come to some
conclusion with the data that's at hand.
Q. So in this case, with regard to the clothing, who was
responsible for analyzing the data?
A. That was myself.
Q. Who was responsible for issuing the final conclusions?
A. Myself.
Q. In doing that, did you compare Agent Martz' work to the
additional tests that you conducted?
A. Yes.
Q. Were those results consistent, or inconsistent?
A. They were consistent with one another.
Q. Now, the machines that Agent Martz used to conduct those
preliminary tests: Were those machines that Dr. Whitehurst
testified he was qualified to use?
A. Yes.
Q. Did you review the anticontamination procedures that
Mr. Martz used when he tested the clothes?
A. Yes. I reviewed those with him.
Q. And did you receive his notes that he prepared in
conducting those tests?
Steven Burmeister - Direct
A. Yes, I did.
Q. Did Dr. Whitehurst also conduct a test on a sample that had
been extracted from Mr. McVeigh's clothes?
A. Yes, that's correct.
Q. In doing that, did he generate notes?
A. Yes, he did.
Q. Did he provide those notes to you?
A. Yes, he did.
Q. And did they also become part of your work product?
A. Yes.
Q. Did Dr. Whitehurst in his capacity of testing that sample
also test the solution that Mr. Martz had used?
A. The -- he tested an original solution that would have been
the precursor to derive the secondary solution.
Q. Was the purpose of his testing of Mr. Martz' solution to
determine whether there was any contamination?
A. I'm sorry. Could you repeat that one more time.
Q. Yes. What was the purpose of Dr. Whitehurst testing
Mr. Martz' original solution?
A. That would have been to determine the original blank of the
entire system, so it would have been a raw -- a pristine
version of the solvent used.
Q. And what were the results of Dr. Whitehurst's testing of
Mr. Martz' solution?
A. That it was negative as far as any presence of any items.
Steven Burmeister - Direct
Q. So it was clean?
A. Clean.
Q. When Mr. Martz conducted these tests on April 22, were they
conducted before Mr. McVeigh's clothing went to the Photography
Unit and the Hair and Fiber Unit?
A. Yes, they were.
Q. So the residues that he found were present before it had
traveled to the laboratory; correct?
A. Yes.
Q. As part of your analysis of the chain of custody, have you
become familiar with the procedures used by the Special Photo
Unit and the Hair and Fiber Unit?
A. I am familiar with them, yes.
Q. What precautions do they take to avoid contamination?
A. Their surface is cleaned first. There is a brand-new --
actually a huge board that is placed down in the entire area,
which is actually disposed of once they're completed with an
area. They do wear gloves. Everything is cleaned, and to my
satisfaction with discussing it with them that I'm confident
that the surface was well done.
Q. Based on your review of Mr. Martz' preliminary data
collection and your additional testing, do you have any reason
to believe any residues that weren't present when Mr. Martz
tested the items somehow appeared on the items before you
tested them?
Steven Burmeister - Direct
A. I don't think that would have occurred.
Q. Now, you also heard Dr. Whitehurst talk about Q507, which
is also known as Government's Exhibit 664. And he expressed
some concerns about how the crystals could have remained on
that piece after the rainstorm. Do you recall that?
A. Yes, I do.
Q. Now, do you have an explanation for why those crystals
could have remained?
A. I have an opinion as to why they remained, yes.
Q. What is your opinion?
A. My opinion is that these crystals -- they could have
survived because of the components that might have been present
in the actual substance tests. There are chemicals -- the
aluminum, silicon and sulfur that is detected are components
that are found in some of the coatings for prills. And I
have -- I think that those coating materials helped the
survivability of those crystals during that humid environment.
Q. Do you believe it's possible that when the detonation of
the explosive device occurred that the prills actually embedded
into Q507 as prills instead of as crystals and the
deterioration was protected or slowed down by the coatings? Is
that what you're saying?
A. I'm not saying that they were actually prills at one time
sitting on the surface. I think that the prill actually struck
the surface and shattered and was parts of fragmentations of
Steven Burmeister - Direct
the prills, and that portion was embedded onto the surface.
Q. You have reviewed the chain of custody for Q507 as part of
your analysis; isn't that right?
A. Yes.
Q. And you saw the picture of Q507 in place?
A. Yes, I did.
Q. You were also present shortly after Mr. Kelly took custody
of Q507. Isn't that right?
A. Yes.
Q. Now, do you have any reason to believe that Q507 was not
seized at the scene by Mr. Kelly?
A. I have no reason to believe otherwise.
Q. You heard Dr. Whitehurst claim that Q507 had had paint
analysis conducted by the FBI. Correct?
A. That's correct.
Q. And that's why he believes that Agent Williams told him
that that particular piece had been seized by a civilian;
right?
A. Yes.
Q. Do you know if the FBI Laboratory conducted any paint
analysis on Q507?
A. There was no paint analysis run on Q507.
Q. Are you familiar with another piece of the Ryder truck that
had paint analysis and it was recovered by a civilian?
A. I'm aware of another piece, yes.
Steven Burmeister - Direct
Q. And could it be possible that Dr. Whitehurst is confusing
those two pieces?
A. It's possible, yes.
Q. Do you have any reason to believe that Q507 was not
recovered in the parking lot across from the Murrah Building on
April 21, 1995?
MR. TRITICO: Objection, asked and answered.
THE COURT: Sustained.
MS. WILKINSON: No further questions.
THE COURT: Cross-examination.
CROSS-EXAMINATION
BY MR. TRITICO:
Q. Now, Agent -- Special Agent Burmeister, you testified a
moment ago that you have a policy of -- for testing cardboard
boxes when you receive items in them?
A. Yes.
Q. Did you bring it with you?
A. It's a policy that I've had in place since the time that I
started --
Q. Special Agent Burmeister, did you bring the policy with
you?
THE COURT: You mean a written policy?
MR. TRITICO: Yes, sir.
THE WITNESS: There is no written policy for this,
that's correct.
Steven Burmeister - Cross
BY MR. TRITICO:
Q. Nowhere in your notes do you describe the policy that you
claim to utilize when have you a cardboard box, do you?
A. Only if it's a positive will there be a notation.
Q. Special Agent Burmeister, in your notes, do you describe
the policy that you used, the unwritten policy, for checking
cardboard boxes?
A. There is nothing written in the notes to determine that.
That's correct.
Q. And since you -- if I understand your policy, you only
write it down if you get a positive on the box; right?
A. That's correct.
Q. And so there is no way to know by looking at your notes
that you ever checked that box, is there?
A. No. That's not correct.
Q. Well, you didn't get a positive, did you?
A. That's correct, if --
Q. So you didn't note it in your notes -- would you?
A. If there was a positive, I would have made a note in my
notes.
Q. And if I understand your testimony, you didn't get a
positive.
A. That's correct. There was no positive.
Q. So you didn't note it in your notes?
A. Say that again. I'm sorry.
Steven Burmeister - Cross
Q. Since there was no positive by your testimony, there is no
notes regarding the testing of the box, is there?
A. That's correct, no positives --
Q. I can read your notes five or six times and never find an
entry in there regarding the testing of the box. Isn't that
right?
MS. WILKINSON: Objection. Argumentative, your Honor.
THE COURT: Overruled.
BY MR. TRITICO:
Q. Correct?
A. Could you ask the question one more time. I'm sorry.
Q. Sure. I could read your notes five or six times and never
will I find an entry in there regarding your testing of that
box; right?
A. Like I said, only if there is a positive finding will there
be a notation.
THE COURT: Well, the answer is it isn't in the notes.
Right?
THE WITNESS: That's correct. It's not in the notes.
THE COURT: All right.
BY MR. TRITICO:
Q. Now, you were discussing the smokeless powder issue. Now,
you didn't read that article when Dr. Whitehurst gave it to you
in 1995, did you?
A. No, that's not correct.
Steven Burmeister - Cross
Q. Well, do you recall testifying on cross-examination just a
few days ago when I asked you if you had ever seen that article
and you said you don't recall ever seeing it or reading it?
A. My recollection is I said -- stated that I don't recall
receiving that article with that memo.
Q. And do you recall my asking you if you had ever read that
article before? And you said no?
A. I don't have a recollection of that, but --
Q. You did not do any research with respect to PETN, the
possibility of PETN being in smokeless gunpowders in 1995, did
you?
A. That's -- that is correct. At that time in 1995, that's
correct.
Q. You went back after I cross-examined you the other day and
that's when you did the research at the request of
Ms. Wilkinson; isn't that correct?
A. Not at her request, no.
Q. How many conversations have you had with the Israeli
Military Institute that produced the bullets that Mr. McVeigh
had when he was arrested?
A. I have not had any direct contact with them regarding that,
no.
Q. Have you ever called them to find out if they use PETN in
the construction of their bullets?
A. I'm aware that it is in the construction of the bullets, if
Steven Burmeister - Cross
we're referring to the cartridge and bullet.
Q. And you never tested those bullets, did you, in your
investigation in this case? Isn't that right?
A. Which bullets are you referring to?
Q. The IMI bullets.
A. That were recovered in this case?
Q. Yes, sir.
A. Not in this case, no.
Q. Now, with respect to the crystals that you found on Q507 --
well, actually, with respect to Q507, that's the only item that
you showed Dr. Whitehurst that had ammonium nitrate crystals on
it in this case; right?
A. It's the only one that I showed him, yes.
Q. Now, you were present for Dr. Whitehurst's testimony
yesterday; correct?
A. Yes, I was.
Q. Now, what you heard him say with respect to the paint
testing on Q507 was that it wasn't conducted because he had a
problem with the protocol at the lab, is exactly what he said,
wasn't it?
A. I'd have to review that testimony. That, I'm not sure of.
Q. As a matter of fact, that was the basis for the discussion
he had with Special Agent Williams that -- when Special Agent
Williams told him it had been found by a citizen; right?
A. I'm not sure if I can speak on that. I don't recall that
Steven Burmeister - Cross
particular testimony.
Q. You don't recall that part of it yesterday?
A. That's correct.
Q. Sure. Now, with respect to the crystals on Q507, if I
understand your testimony, it's your belief that these prills
were blasted into the side of Q507 after it miraculously lost
90 percent of its half-inch original body and what the silicon
and the aluminum that you found on it is the remains of the
coating. Right?
A. That is a component in coating materials, yes.
Q. ICI Joplin prills in 1994 also had talc as a coating,
didn't they?
A. That's correct, yes.
Q. And a component of talc is magnesium; isn't that correct?
A. That's correct.
Q. You found no magnesium in the crystals on Q507, did you?
A. The elemental profile did not show any magnesium in those
crystals. That's correct.
MR. TRITICO: Thank you, sir. I'll pass the witness.
THE COURT: Any redirect?
MS. WILKINSON: No further questions, your Honor.
THE COURT: You may step down.
MR. HARTZLER: The Government rests on rebuttal.
THE COURT: The Government rests.
I take it there is no surrebuttal.
MR. JONES: That's correct, your Honor.
THE COURT: That means, members of the jury, that the
evidence is now closed, which means that you've heard all of
the testimony that you're going to hear in this trial; but the
case is not over, the trial is not over, because what remains,
of course, are the arguments of the lawyers, the closing
arguments in which they have the opportunity to speak to you
and attempt their interpretations of that evidence and suggest
how you should decide this case and the instructions that I
will give you with respect to the law that you must follow in
the case.
Now, we're almost to the noon hour, and it's no --
there is no way in which we can complete all of that this
afternoon; so what I'm going to do is let you go home early
today; and when we come back tomorrow at 9:00 in the morning,
we'll submit this case to you and present to you the arguments
of counsel and the instructions that I will give you on the
law. And then the case will be yours to decide, and you will
begin your deliberations.
So this time, of course, in between is very critical
for you to follow the instructions that I've always given and
at some times given sort of lightheartedly, but I only did that
to sort of relieve the monotony of your having to hear the same
thing every time you leave the courtroom, which, of course, the
rules require me to do, to mention that to you each time.
But now I must emphasize and underline it, because
you're in a position now where you've heard it. You've heard
the testimony; and obviously, it's a matter of human nature for
you now to wonder, Well, what is it that I've heard? What does
it mean?
Don't do that. It would be a violation of your oaths
to do that. You must keep open minds. You must remember that
when you come to decide this case, there will be 12 people who
will decide the case. And you will share in your deliberations
your recollection of testimony of witnesses, your opinions and
impressions with respect to witnesses and all of those things;
so you function in deliberating as jurors as one of a group of
12. And it is the dynamics of that group of 12 that is a very
important part of what a trial by jury is all about. You know,
you don't just all go off and then come together and say, Well,
what have we all decided, and sort of take a vote on it. You
discuss the case.
And I'll be talking to you about this in greater
detail, of course, when I give you the instructions about the
law that will assist you in approaching your decision in the
case; so please, let the matter rest now until you come
together tomorrow and we give you this case to decide with the
arguments and the instructions.
And of course, also, with the knowledge that the
evidence is closed, there will be, I am sure, many things said
about this trial. There will be people who will be trying to
predict what the jury is going to do. That's the nature of our
media, calling on other lawyers to have their opinions about
what they think the trial all means. None of that can come to
your attention. It would be a violation of your oaths to, you
know, hear it, or see it. So you have to be extremely careful
now, and I'm sure you will be.
I just mention these things so that you can really
appreciate and understand the importance of it fully and be
prepared to come in here tomorrow still with open minds, ready
to receive arguments and instructions before even in your own
minds you come to think about what you have or haven't -- what
is the significance of what you have and haven't heard.
So, of course, don't discuss the case among yourselves
or with any other persons, and don't let yourselves be exposed
to anything that may be on television, radio, newspapers,
magazines, anything at all. And then, as I say, come to us
tomorrow morning ready to receive this case.
You're excused now until 9:00 tomorrow morning.
(Jury out at 11:52 a.m.)
THE COURT: The evidence having now been closed, is
there a defense motion?
DEFENDANT'S MOTIONS AT THE CLOSE OF EVIDENCE
MR. JONES: Yes, your Honor. We renew our Rule 29
motion, I believe it is, for judgment of acquittal and all the
other motions filed heretofore.
RULING ON DEFENDANT'S MOTIONS
THE COURT: All right. Well, the Rule 29 motion for
judgment of acquittal on insufficiency of the evidence is
denied. The other motions, the rulings are again renewed and
the motions denied.
I'd like to see counsel this afternoon for an
instructions conference. I am suggesting 2:00 in chambers.
MR. HARTZLER: That's fine.
MR. NIGH: Yes, your Honor.
THE COURT: All right.
MR. HARTZLER: Thank you, your Honor.
THE COURT: Then as far as the trial in the courtroom,
we'll resume at 9:00 tomorrow morning.
(Recess at 11:53 a.m.)
* * * * *
INDEX
Item Page
Defendant's Motions at the Close of Evidence
Ruling on Defendant's Motions
WITNESSES
Deborah Brown
Direct Examination by Mr. Nigh
Cross-examination by Mr. Hartzler
Marife Nichols
Direct Examination by Mr. Hartzler
Cross-examination by Mr. Jones
James Hawkins
Direct Examination by Mr. Hartzler
Steven Burmeister
Direct Examination by Ms. Wilkinson
Cross-examination by Mr. Tritico
PLAINTIFF'S EXHIBITS
Exhibit Offered Received Refused Reserved Withdrawn
1648
1649 11148 11148
1651 11134 11135
1652 11156 11156
DEFENDANT'S EXHIBITS
Exhibit Offered Received Refused Reserved Withdrawn
C64A & C65A 11115 11116
DEFENDANT'S EXHIBITS (continued)
Exhibit Offered Received Refused Reserved Withdrawn
C750 11145 11145
F9
H1 11144
O-70 11144
P138 11123 11123
P139 11124 11124
P168 11130 11130
P175 11143 11143
P201 11143 11143
P202 11142 11142
P203 11140 11140
P204 11143 11143
P750 11144 11144
P751 11144 11144
* * * * *
REPORTERS' CERTIFICATE
We certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter. Dated
at Denver, Colorado, this 28th day of May, 1997.
_______________________________
Paul Zuckerman
_______________________________
Kara Spitler