OKLA 95-93
United States of America, Plaintiff v. Terry Lynn Nichols, Defendant.
BRIEF OF THE UNITED STATES IN OPPOSITION TO DEFENDANT NICHOLS' MOTION FOR PROTECTION OF DEFENSE RIGHTS OF ACCESS TO EVIDENCE, AND TO SET LIMITS ON GOVERNMENT CONDUCT
M-95-105-H
U.S. District Court for the Western District of Oklahoma.
June 21, 1995
Hon. Ronald L. Howland, Magistrate Judge
Patrick M. Ryan, U.S. Attorney, Joseph H. Hartzler, Arlene Joplin, Sean Connelly, Assistant U.S. Attorneys, Oklahoma City, For the Plaintiff.
The United States of America, by its attorneys, opposes defendant Terry Lynn Nichols' self-styled "Motion for Protection of Defense Rights of Access to Evidence, and for Hearing to Set Limits on Government Conduct."
Nichols' motion is yet another effort to circumvent the normal rules against pre-indictment discovery. Contrary to Nichols' baseless claims of investigative misconduct, the United States is conducting an exceptionally complex investigation in a professional manner consistent with the Constitution, statutes, and Federal Rules of Criminal Procedure.
Nichols also seeks to circumvent the normal rules against pre-indictment discovery by claiming a "particularized need" for access to investigative materials even before the investigation is complete. Motion at 12-15. Nichols concludes, in colorful but unsupported rhetoric, that "the government claims the right to inquire at leisure and leak at will." Id. at 17. The government, of course, has never made any such claim. Nichols' motion should be denied.
I. NICHOLS IS NOT ENTITLED TO PRE-INDICTMENT DISCOVERY.
The genesis of Nichols' claim is his view that he is entitled to discover the evidence against him even before the investigation is complete and an indictment is returned. See Motion Exhibit C (defense counsel's May 16, 1995 letter stating that "(b)ecause of the unusual nature of this case, we believe that discovery is appropriate. . . . "). This unfounded view has consistently been rejected by this Court, most recently when it overruled Nichols' objections to the government's motion for excludable time. See Order 6/16/95 at 3-4 (because the "right to discover the Government's evidence does not accrue until after the Grand Jury has finished its investigation and any indictment against Defendant is filed," there is "no legal ground for any complaint that the Government is not permitting Defendant to discover its evidence at this stage of the litigation").
Nichols cannot avoid restrictions on pre-indictment discovery simply by asserting "particularized need for the material." Motion at 12. No reported case has allowed pre-indictment discovery based on a claim of particularized need. The case principally relied on by Nichols ordered post-indictment discovery and, even then, it stressed that: 1) "there was (no apparent) ongoing investigation or any particular circumstance which required that the grand jury proceedings be kept secret"; and 2) the government had not argued that the Jencks Act barred such early disclosure. United States v. Evans & Associates Construction Co., 839 F.2d 656, 659 (10th Cir.), on rehearing, 857 F.2d 720 (1988).
While the Supreme Court has "consistently construed (Rule 6(e)) to require a strong showing of particularized need for grand jury materials before any disclosure will be permitted" (United States v. Sells Engineering, Inc., 463 U.S. 418, 443 (1983)), it has not applied this standard in a manner that would trump the Jencks Act. That Act unequivocally provides that: "In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or a prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until such witness has testified on direct examination in the trial of the case." 18 U.S.C. § 3500(a); see also Fed. R. Crim. P. 17(h) ("Statements made by witnesses or prospective witnesses may not be subpoenaed from the government or the defendant under this rule, but shall be subject to production only in accordance with the provisions of Rule 26.2").
Thus, this Court was correct in its prior rulings that Nichols has no right to pre-indictment discovery. Indeed, federal courts have often blocked discovery in related civil proceedings that might circumvent more limited, or nonexistent, rights of criminal discovery. See, e.g., Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962), cert. denied, 371 U.S. 955 (1963); Integrated Generics, Inc. v. Bowen, 678 F. Supp. 1004, 1009 (E.D.N.Y. 1988); United States v. Phillips, 580 F. Supp. 517, 519 (N.D. Ill. 1984); Founding Church of Scientology v. Kelley, 77 F.R.D. 378 (D.D.C. 1977).
In any event, Nichols has not shown particularized need for departing from the discovery rules established by Congress and the Supreme Court. This Court essentially found as much when it rejected Nichols' objection to an "ends of justice" continuance. See Order 6/16/95 at 4-5. As the Court explained, Nichols is entitled, "prior to trial, (to) all evidence in the Government's possession which is material either to (his) defense or to the elements of the Government's case in chief against (him)." Id. at 5 (citations omitted). That this case may involve "complex facts involving many witnesses," and events that "span many years and at least two continents" (Motion at 13), is not a basis for allowing Nichols to discover the government's case even before that case is fully investigated and indicted. Nichols can invoke established discovery mechanisms, under Rules 16 and 26.2 and the Jencks Act, once he is indicted. Those discovery rules, and Nichols' right to seek a trial date commensurate with his needs to prepare a defense, suffice to ensure a fair trial.
II. NICHOLS' BASELESS CLAIMS OF INVESTIGATIVE MISCONDUCT CANNOT CREATE A RIGHT TO PRE-INDICTMENT DISCOVERY THAT DOES NOT OTHERWISE EXIST.
A. The Government Has Investigated The Case In Good Faith.
Nichols accuses the government of unfairly "delay(ing)" the investigation. Motion at 4-5, 10-12, 16-17. This claim is based on his legally mistaken notion that "(w)e tolerate grand juries" only for the "limited purpose" of "gather(ing) evidence until probable cause appears or until it is clear that a "no bill' is appropriate." Id. at 16. This Court previously has rejected a similar claim. See Order 6/16/95 at 6 (case law "merely hold(s) that the Government may not use a grand jury to discover additional evidence, or to bar a criminal defendant's access to evidence, after the criminal defendant has been indicted") (discussing United States v. Gibbons, 607 F.2d 1320, 1328-1329 (10th Cir. 1979); and United States v. Doss, 563 F.2d 265 (6th Cir. 1977)).
The Supreme Court has made clear that prosecutors are not required to seek indictments as soon as probable cause is established. United States v. Lovasco, 431 U.S. 783, 791 (1977) ("It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt"). The Court explained that "(f)rom the perspective of law enforcement, a requirement of immediate prosecution upon probable cause is . . . unacceptable because it could make obtaining proof of guilt beyond a reasonable doubt impossible by causing potentially fruitful sources of information to evaporate before they are fully exploited." Id. at 791-792. Lovasco also deemed such a requirement unwise "from the standpoint of courts" because, among other things, "it would cause scarce resources to be consumed on cases . . . that involve only some of the responsible parties or some of the criminal acts." Id. at 792. The Court further made clear that an indictment was not required even after the government had amassed proof beyond a reasonable doubt. Id. at 792-793.
The present case well illustrates the Supreme Court's teaching in Lovasco. An immediate indictment is not required regardless of the quantum of proof of Nichols' complicity in the Murrah building bombing. The grand jury, investigators and prosecutors still need to scrutinize all the physical, documentary and testimonial evidence to determine the exact roles played by Nichols and his confederate(s) in each step leading to the bombing. Such detailed and time-consuming scrutiny is necessary not only to indict Nichols for the bombing but also to determine precisely how, and with whom, he should be charged. These types of charging decisions are, of course, uniquely within the province of prosecutors. See Wayte v. United States, 470 U.S. 598, 607 (1985) ("(S)o long as the prosecutor has probable cause to believe that an accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely within his discretion") (internal quotations omitted).
Nichols supports his charges of investigative misconduct by relying on completely inapposite case law. He claims, for example, that "(t)he closest analogy to the present case is United States v. Procter & Gamble Company, 356 U.S. 677 (1958)." Motion at 10. But, as is evident from Nichols' own description of that case, the grand jury investigation there bears no resemblance to this one. According to Nichols: "In Procter & Gamble, the United States convened a grand jury, but there was no indictment. Rather a civil case was begun . . . (and a district judge later) found that the government had never intended to use the grand jury properly." Motion at 10-11. There is no indication here, however, and indeed it would be ludicrous to suggest, that a grand jury is being used to prepare some sort of civil case against Nichols rather than to investigate a heinous crime.
Equally off the mark is Nichols' reliance on United States v. Phillips Petroleum Co., 435 F. Supp. 610 (N.D. Okla. 1977), where the court dismissed an indictment because the prosecutor allegedly had misled the grand jury by, among other things, failing to present exculpatory evidence. Nichols incorrectly asserts that the Phillips "rationale survives even" United States v. Williams, 504 U.S. 36 (1992) (Motion at 12), but Phillips has nothing to do with this case because Nichols cannot show that the grand jury has been misled. Also inapposite is Nichols' comment that the Phillips proceedings "began with compelled disclosure to the defense team." Motion at 12. Court-ordered disclosure is allowed "at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury" (see Fed. R. Crim. P. 6(e)(3)(C)(ii)), but such orders are "rarely granted." United States v. Mechanik, 475 U.S. 66, 80 (1986) (Marshall, J. dissenting) (citing 1 Charles Alan Wright, Federal Practice and Procedure: Criminal § 108 at 263-265 (1982)). In any event, Nichols does not presently invoke Rule 6(e)(3)(C)(ii), which by its terms can apply only after indictment.
B. The Government Has Not Hindered Defense Access To Witnesses.
Nichols also accuses the government of hindering defense access to witnesses. Motion at 3, 6-8. He provides no factual support for this claim, other than to state that "(o)n June 8, 1995, counsel for Mr. McVeigh informed the Court that the FBI had told witnesses not to talk to defense investigators, thus frustrating interviews of persons with knowledge of the events in issue." Id. at 3. McVeigh's counsel, in turn, alleged a government "pattern of obstructing the investigation by the defense," but his only two "example(s)" of this "pattern" were that: 1) FBI "Agent Scott Crabtree of the Salina, Kansas, office specifically advised employees at Elliott's Body Shop in Junction City, Kansas, not to talk with defense counsel"; and 2) Oklahoma State authorities "specifically advised an investigator for the defense that (Trooper Charles Hanger) would not be produced because the FBI had requested that he not be made available to the Defendant." McVeigh's Objection, at 9-10 (filed June 8, 1995).
Nichols' motion has "little to say about this issue," apart from a three-page block quote of Gregory v. United States, 369 F.2d 185, 187-189 (D.C. Cir. 1966), which reversed a conviction because a prosecutor had prevented defense counsel from interviewing eyewitnesses outside his presence. See Nichols' Motion at 6-8. It is, of course, established law that "the prosecution may not interfere with the free choice of a witness to speak with the defense absent justification by the clearest and most compelling considerations." United States v. Troutman, 814 F.2d 1428, 1453 (10th Cir. 1987) (internal quotations omitted). But because a "witness in a criminal case has the right to refuse to be interviewed, . . . (n)o right of a defendant is violated when a potential witness freely chooses not to talk." Id. (internal quotations omitted). A government agent may advise a witness that the witness "ha(s) the right to speak or not to speak with anyone from the defense." United States v. Pinto, 755 F.2d 150, 152 (10th Cir. 1985) (holding that "prosecution did not impermissibly interfere with (witness) Morris' choice" by giving such advice) (citing United States v. Bittner, 728 F.2d 1038, 1041-1042 (8th Cir. 1984)); see Bittner, 728 F.2d at 1042 ("Agent Fennewald merely advised (witness) of her right to decline interviews with Bittner's attorney"; "(c)ontacts of this nature do not constitute an impermissible interference with the defendant's right of access to witnesses").
Contrary to defense claims, FBI Special Agent Crabtree has not told witnesses from Elliott's Body Shop not to talk with defense counsel. Rather, he told the witnesses that the decision whether to share their information with others was entirely their own and that they were under no obligation to do so. The FBI has since confirmed that the witnesses from Elliott's understand this fact.
Also without merit are Nichols' and McVeigh's challenges to the alleged hindrance of access to Oklahoma State Trooper Charles Hanger. Contrary to the claim in McVeigh's earlier objection, Oklahoma State authorities have not cited FBI instructions as the reason for their not making Trooper Hanger available for a defense interview. Chief Counsel John K. Lindsey, of the Oklahoma Department of Public Safety, declined to make Trooper Hanger available based on his own judgment that such an interview would not serve the interests of his Department. The letter informing McVeigh's investigator of this fact makes no mention of any FBI position. See Exhibit A hereto. Mr. Lindsey has confirmed that the FBI did not take any position regarding such an interview. In any event, Trooper Hanger already has testified, over the government's objection that the defense was simply seeking pre-indictment discovery, during McVeigh's preliminary examination hearing. See Tr. 4/27/95 at 151-165.
Nichols' real problem, if any, is not that the FBI has blocked access to potential witnesses, but rather is that those witnesses have independently chosen not to speak with the defense. Nichols previously cited difficulties "gain(ing) the trust of potential witnesses who may be suspicious of court-appointed counsel and investigators." Memorandum in Support of Release, at 4 (May 25, 1995). Nichols' proposed order to be served on "every witness interviewed by the FBI" (Motion Exhibit A) is an overbroad remedy for a nonexistent violation. His proposed "Notice" to potential witnesses (Motion Exhibit B) is an unjustifiable effort to enlist the prestige of the Court as a means of persuading otherwise reluctant witnesses to consent to defense interviews.
C. Nichols Has Not Made Even A Prima Facie Showing Of Grand Jury Secrecy Violations.
Federal Rule of Criminal Procedure 6(e)(2) generally limits pre-indictment disclosure of "matters occurring before the grand jury" to the grand jurors themselves, clerical personnel, "attorney(s) for the government," and investigators who are disclosed to the court. Consistent with his practice of presuming governmental bad faith until (and indeed even when) shown otherwise, Nichols expresses "doubt" that prosecutors have provided the Court "a list" of persons with access to grand jury materials. Motion at 10. The government feels no need to alleviate such unfounded "doubt." This Court well knows whether the government has been complying its Rule 6(e)(3)(B) notice obligations.
Rule 6(e)(2) further states that the covered persons "shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules." Nichols charges government agents with violating this stricture by "leaking" grand jury materials to the press (Motion at 3-4, 8-10, 15-16). As a "remedy," Nichols seeks "disclosure to the defense of () grand jury and other material" (id. at 2). Federal judges have debated whether prospective equitable relief is available under Rule 6(e). Compare In re Grand Jury Investigation (Lance), 610 F.2d 202 (5th Cir. 1980) with Blalock v. United States, 844 F.2d 1546, 1552-1562 (11th Cir. 1988) (Tjoflat, J., with Roettger, J., concurring) (where the only two panel members disagreed with Lance but felt bound by it); see also Barry v. United States, 865 F.2d 1317 (D.C. Cir. 1989) (divided panel on this point). No court has held or even intimated, however, that the remedy for Rule 6(e) violations is to relax the very grand jury secrecy that the rule is designed to ensure. On the contrary, even those courts willing to imply equitable remedies under Rule 6(e) have stressed that their aim is "preserving grand jury secrecy" in a manner that "seeks to modify offending conduct" without "directly interfer(ing) with grand jury proceedings." Barry, 865 F.2d at 1322 & n.5; Blalock, 844 F.2d at 1551 (considering "whether the relief requested will interfere with the grand jury proceedings"); Lance, 610 F.2d at 219 (similar).
Nichols' claim would fail even if there was some logical link between the violations he alleges and the relief he seeks. To establish a prima facie case under Rule 6(e), the movant must establish, among other things, that "there is "a clear indication that the (disclosure involved) matters occurring before the grand jury"'; and that "it appears that the disclosure was made by a person subject to Rule 6(e)(2)'s requirement of secrecy." Blalock, 844 F.2d at 1551 (quoting Lance, 610 F.2d at 216-217); accord Barry, 865 F.2d at 1321. See generally Order 6/16/95 at 6-7 (discussing Lance). Because Nichols cannot make even a prima facie showing as to these elements, his claim must be denied "without an evidentiary hearing." Blalock, 844 F.2d at 1551. Nichols' "leaks" claim challenges: 1) the court-ordered release of search warrant materials to Detroit newspapers; and 2) individual news stories reporting on the ongoing investigation. We discuss these in turn.
1. The Detroit Unsealing Order.
Nichols complains that the United States Attorney for the Eastern District of Michigan did not oppose motions filed by Detroit newspapers to have search warrant materials unsealed by the federal court that issued and sealed them in the first place. Motion at 3-4. According to Nichols, "this Michigan material" should not have been unsealed "without notice to this Court and to Mr. Nichols" because "the grand jury is this Court's" and "Mr. Nichols was entitled to protect his rights." Id.
By way of background, the Detroit unsealing orders related to five search warrants, issued by the United States District Court for the Eastern District of Michigan, relating to the Michigan farm of James Nichols. The materials were unsealed in response to motions filed in the United States District Court for the Eastern District of Michigan by the Detroit Free Press and, later, the Detroit News. These newspapers claimed rights of access to the search warrant materials under the First Amendment, the common law, and Fed. R. Crim. P. 41(g). The United States Attorney's "Response in Opposition" argued against the unsealing of additional materials "which relate to the Oklahoma City investigation, (and which) have not been made available to the defense attorney for James Nichols or to attorneys representing anyone who may be implicated in the Oklahoma bombing." See Exhibit B hereto, at 3. It did not, however, oppose the unsealing of search warrant materials regarding the Decker farm searches that "led to the seizure of evidence that the government intends to use in the prosecution of James Nichols in the Eastern District of Michigan." Id. at 2. The federal court that had issued and sealed the warrants then ordered them unsealed, while ordering all other materials to remain sealed. See Exhibit C hereto (court order).
Thus, Nichols is factually wrong, not to mention gratuitously cynical, in suggesting that "(a)pparently this sort of material is only to be withheld when a defendant asks for it." Motion at 3. The United States Attorney for the Eastern District of Michigan did not oppose unsealing search warrant materials that already had been turned over to James Nichols' counsel as part of post-indictment discovery. From a purely investigative standpoint, it would have been the course of least resistance to keep the materials secret indefinitely; the government, which sought the sealing orders in the first place, certainly did not seek unsealing. The United States Attorney reached the eminently reasonable judgment, however, that there was no good faith basis for demanding continued secrecy of materials already disclosed the target of the searches.
Nichols is also wrong in assuming that the Michigan search warrant materials were "matters occurring before the grand jury." Contrary to his blanket argument that "(e)vidence gathered for presentment to a grand jury is subject to the secrecy provision of Fed. R. Crim. P. 6(e)" (Motion at 9), "(t)he Rule does not protect from disclosure information obtained from a source other than the grand jury, even if that same information is later presented to the grand jury." Blalock, 844 F.2d at 1551 (citing Lance and Anaya v. United States, 815 F.2d 1373, 1380 (10th Cir. 1987)). The Michigan search warrant materials, which make no mention of any grand jury investigation, focus primarily on information learned from prior searches and FBI interviews. Regardless, even information covered by Rule 6(e) may properly be used to support a search warrant application. See United States v. Jackson, 11 F.3d 953, 955 (10th Cir. 1993). Court-ordered unsealing of such information cannot amount to an impermissible grand jury "leak." See Fed. R. Crim. P. 6(e)(3)(C)(i) (disclosure allowed "when so directed by a court preliminarily to or in connection with a judicial proceeding"). There is no justification for equitable relief against government agents based on the unsealing order issued by the United States District Court for the Eastern District of Michigan.
2. The Other Alleged "Leaks".
Nichols includes, as Exhibit E to his motion, seven newspaper articles that he claims represent a "small sample" of government "leaks" violative of Rule 6(e). The first two articles, from the June 13, 1995, edition of the Detroit News, simply report about the search warrant materials unsealed by the federal court in Detroit the day before. (FN1) For reasons discussed above, these search warrant materials were not covered by Rule 6(e) and the court-ordered unsealing does not constitute a government "leak."
FN1. As Nichols notes (Motion at 3), these articles incorrectly report that the materials were released under the Freedom of Information Act.
The third article, from the June 15, 1995, Daily Oklahoman, reports that "America's most wanted man -- the elusive "John Doe 2' bombing suspect -- has been tentatively identified as a Fort Riley, Kan., Army private who the FBI has determined has nothing to do with the murderous Oklahoma City explosion, the Justice Department announced Wednesday." This announcement makes no mention of any grand jury investigation, and thus does not implicate Rule 6(e). See, e.g., Lance, 610 F.2d at 217 n.5 ("Several of the articles complained of by Lance discuss actions taken by the Justice Department; however, such disclosures do not violate Rule 6(e)"). Especially in a case such as this, where the Justice Department has enlisted the public's help in seeking bomb-related information, it is entirely proper to announce formally that a person matching a broadcasted description is not considered a suspect. The June 15th Daily Oklahoman article also discusses what "witnesses have (reportedly) told the FBI," the preliminary examination testimony of FBI Special Agent Myers, complaints raised in Nichols' court filings, and out-of-court statements by McVeigh's attorney "scoff(ing) at the importance of" the Justice Department's announcement. None of these reports implicates Rule 6(e).
The fourth article, from the June 8, 1995, Daily Oklahoman, simply reports matters contained in the government's motion for additional time within which to obtain indictments. This motion, which required the government to show that "the facts upon which the grand jury must base its determination are unusual or complex" (18 U.S.C. § 3161(8)(B)(iii)), discussed the overall scope of the grand jury investigation without indicating any particular direction in which that investigation was headed. It thus was faithful to the letter and spirit of Rule 6(e), in light of the government's burden of supporting a continuance motion under the Speedy Trial Act.
The fifth article, from the June 14, 1995, Houston Chronicle, reports a "federal law enforcement source" opining that "the mastermind of the attack is still out there." Whatever the wisdom of this so-called "source" offering a personal opinion, that opinion does not violate Rule 6(e). Cf. Lance, 610 F.2d at 217 ("Nor does a statement of opinion as to an individual's potential criminal liability violate the dictates of Rule 6(e)" even assuming "the opinion might be based on knowledge of the grand jury proceedings, provided, of course, the statement does not reveal the grand jury information on which it is based"). The remainder of the June 14th Houston Chronicle article discusses the Detroit search warrant information and the fact that "FBI agents in Kansas sought (public) help in the search for a red homemade trailer." For reasons discussed above, dissemination of these matters is entirely proper and does not implicate Rule 6(e).
The sixth article, from the June 14, 1995, Daily Oklahoman, recounts the Detroit search warrant materials as well as press interviews given by James Nichols and his neighbors. The only new information -- from an "unidentified," and apparently misinformed, law enforcement "source" -- is that James Nichols has not been arrested on Oklahoma City charges because ""(i)f they go out and scoop him up then they start the clock."' The so-called source's use of the word "they" suggests that he or she is not part of the federal investigative team; in any event, there is no suggestion that this "source" has access to grand jury materials, let alone that his or her inaccurate views were based on such materials.
The seventh, and final, article offered by Nichols appeared in the New York Times on May 20, 1995. The information there, attributed to "law enforcement officials," recounts what Michael Fortier reportedly has "told Federal authorities" who "had questioned him and searched his trailer in Kingman and an adjoining storage shed." These alleged comments, while unfortunate and unhelpful to the investigation, involved matters occurring outside the grand jury and thus outside the scope of Rule 6(e). The remainder of the New York Times article suggests that informed sources refused to reveal details regarding Fortier's information or possible involvement. For example, the article reported: "(i)t was not clear whether prosecutors believe Mr. Fortier is culpable"; "(i)t was unclear whether Mr. Fortier provided the Government with any information about the possible involvement of Mr. Nichols or other possible confederates in what authorities have said they believe is a wider circle of conspirators"; and "there was no indication whether Mr. Fortier had provided any information" about possible visits to other buildings in other cities.
In sum, federal investigators have adhered to Rule 6(e). Far from establishing a "pattern of leaks" or "massive leaks" of grand jury matters (Motion at 8-9), a reader of the news clips offered by Nichols would have virtually no idea what was occurring or not occurring before any federal grand jury. The Justice Department's official comments have been limited to either matters of public record or else matters in which the public's help has been enlisted in locating possible suspects, witnesses and tangible evidence. The reported information and speculation from unidentified sources, many of whom are misinformed, do not involve matters occurring before the grand jury. Nichols' strident complaints about investigatory "leaks" are pure posturing, especially given defense counsel's willingness to try their case, and discuss defense strategies, in the press. See "Nichols's Lawyer Says McVeigh Rented Suspect Storage Shed," Wash. Post, June 20, 1995, at A-3 (discussing statements made by "defense attorney Michael E. Tigar in a telephone interview yesterday" regarding Nichols' use of storage locker allegedly rented by McVeigh); "Separate Trials Sought For Blast Suspects," USA Today, June 21, 1995, at A-3 (discussing out-of-court statements made by defense attorney Ronald Woods regarding separate trials and fact that Michael Fortier has not been arrested). The bottom line is that Nichols has not made even a prima facie showing of Rule 6(e) violations.
CONCLUSION
For the above reasons, Nichols' charges of government misconduct are groundless. The Court should deny Nichols' motion without an evidentiary hearing.
Respectfully Submitted,
PATRICK M. RYAN, U.S. Attorney
JOSEPH HARTZLER, Special Assistant U.S. Attorney
ARLENE JOPLIN, JEROME A. HOLMES, Assistant U.S. Attorneys
Signature /s/
SEAN CONNELLY, Special Assistant U.S. Attorney
210 W. Park Avenue, Suite 400
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