DEFENSE MOTION FILED BY LAWYERS FOR TERRY NICHOLS IN THE OKLAHOMA STATE COURT TRIAL

For those who have studied this case, this document reveals many incredible details that not only help "connect the dots" in many parts of the case, but reveal that the federal government does indeed have video tapes showing more than one person getting out of the Ryder truck in front of the Murrah building. This document goes into detail on the efforts of certain federal agents and prosecutors to hide the facts, hide evidence, and discredit the witnesses in this case. The Big Question that hangs over the OKBOMB case is "WHY?"

Why hide the facts...and the Others Unknown?

Read on....

Nichols Defense Motion

IN THE DISTRICT COURT OF PITTSBURG COUNTY

STATE OF OKLAHOMA ,THE STATE OF OKLAHOMA, )

Plaintiff, )

V. ) Case No. F-2004-68

TERRY LYNN NICHOLS, )

Defendant. )

TERRY LYNN NICHOLS' MOTION TO DISMISS BASED ON THE STATE'S FAILURE TO COMPLY WITH BRADY v. MARYLAND

Submitted by:

Brian T. Hermanson, OBA #4131

W. Creekmore Wallace, II, OBA #9315

Rodney J. Uphoff, OBA #014170

Barbara E. Bergman

Mark A. Earnest

Theresa M. Duncan

P.O. Box 879

McAlester, OK 74502

(918) 426-0032

Court-Appointed Attorneys for the Defendant

Table of Contents

I. STATEMENT OF FACTS 1

A. Introduction 1

B. McVeigh and Others Unknown 5

C. McVeigh and Elohim City 7

` D. McVeigh and the Midwest Bank Robbers 12

E. Frustrating the Defense Investigation 21

F. Solomon's Documents 24

G. Critical Information Contained in 1B 3484 43

H. The FBI's Investigation of the Midwest Bank Robbers Calling Cards/Phone Records 54

I. The Federal Government's Investigation into Elohim City 69

II. MR. NICHOLS HAS BEEN DEPRIVED OF DUE PROCESS OF LAW

BECAUSE THE STATE HAS FAILED TO PROVIDE HIM WITH THE EXCULPATORY MATERIAL TO WHICH HE IS CONSTITUTIONALLY ENTITLED 75

III. EVIDENCE THAT OTHERS ASSISTED TIMOTHY MCVEIGH IS

CRITICAL TO ENSURING THAT MR. NICHOLS IS PROVIDED HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE 82

I. STATEMENT OF FACTS

A. Introduction

To fully appreciate the extent to which the federal government and the state prosecutors have sought to mislead this Court, the defense, and the public about the bombing of the Murrah Building, it is necessary to bear in mind a number of actions taken by the FBI, officials in the Department of Justice, and the state prosecutors.

* First, relatively soon after the bombing, Attorney General Janet Reno announced publicly that the bombing was an act of domestic terrorism.

* Second, the FBI and federal prosecutors proclaimed prior to and at the federal trials that there was no John Doe #2 or other unnamed co-conspirators. Rather, officials of the federal government insisted that the bombing was solely the work of Timothy McVeigh and Terry Nichols, except for some early assistance by the Fortier’s.

* Third, the federal government has withheld critical information from the defense, has sanitized or redacted 302s, and has buried other materials in the discovery provided to the defense all in an effort to mask the connection between Timothy McVeigh and his co-conspirators. This was particularly easy to do given the volume of material turned over to the defense and the roadblocks thrown up by the federal government and state prosecutors to bar access to relevant documents and information. The state prosecutors not only have echoed the federal government's claim that only Timothy McVeigh and Terry Nichols committed this bombing, they have fought to prevent us from discovering exculpatory material and the connection between McVeigh and others unknown. Invoking their claimed "open file policy" and relying on an unduly narrow view of their Brady obligations, state prosecutors have insisted that it is up to the defense to search for itself in millions of documents to find whatever exculpatory material lies hidden there.

* Fourth, the FBI kept the lead sheets from the federal defense team and only provided a portion of them to Mr. Nichols' state lawyers. By failing to turn over the documents and information identified in this motion and in our last continuance motion, and by withholding the lead sheets and other exculpatory material contained in other investigatory files related to the Murrah Building bombing, the federal government has been largely able to cover up the connection between Timothy McVeigh and his co-conspirators. Indeed, it was only after the disclosures by AP reporter John Solomon and our subsequent review of other federal investigatory files (the federal bank robbery file of Peter Langan, one of the Midwest bank robbers1) that we discovered critical exculpatory material buried in a 1B file in the 37 file cabinets in the District Attorney's Office. Absent Mr. Solomon's disclosures, it is likely that the federal government would have accomplished its goal of covering up Timothy McVeigh's involvement with unnamed others in his plot to bomb the Murrah Building.

State prosecutors and the Department of Justice have repeatedly represented to this Court that the federal government and the State have turned over to the defense all exculpatory material related to the investigation of the bombing of the Murrah Building on April 19, 1995. Indeed, on March 1, 2004, state prosecutors once again assured this Court that all exculpatory material in their possession and in the possession of federal authorities had been fully disclosed to the defense. They made this representation even though this Court had made it perfectly clear that it wanted to know "if you or the federal government have any hint, any indication, direct or indirect, that anybody in any of those groups played a role in the bombing of the Murrah Building."2 This Court, relying upon the representations made by the State and the Department of Justice, denied Mr. Nichols' Motion for Continuance.3 This Court made it perfectly clear, however, that if that reliance proved to be misplaced and it was discovered that any exculpatory material had not been disclosed to the defense, the remedy would not be a mistrial, it would be dismissal with prejudice.

Put bluntly, this Court has been misled. The federal government and state prosecutors have withheld -- and continue to withhold -- critical information from the defense that shows that Timothy McVeigh was aided by persons other than Terry Nichols in his plot to bomb the Murrah Building. Indeed, they have withheld from the defense and from this Court the fact that they have a video in their possession showing "the suspects" exiting the Ryder truck three minutes and six seconds before the detonation. They have also failed to disclose the critical fact that Timothy McVeigh made a second phone call to Elohim City after he rented the Ryder truck. This omission is particularly significant in light of additional evidence we have now uncovered that Mr. McVeigh's call on April 5, 1995, to Elohim City was made on "[a] day that he was believed to have been attempting to recruit a second conspirator to assist in the OKBOMB4 attack."5

As this Motion and our last Motion for Continuance spell out, the federal government and state prosecutors have deliberately frustrated our efforts to link Mr. McVeigh with the Midwest bank robbers and with terrorists living in Elohim City.6 It was not until the disclosures made by AP reporter, John Solomon, in his February 25, 2004 article and our subsequent investigation, however, that we found more information that now allows us to fully appreciate the extent of the connection between Mr. McVeigh and these others. In fact, the additional investigation we have conducted since March 1, 2004, together with the documents and information set forth in our Motion for Continuance, unequivocally demonstrate that Timothy McVeigh was aided by persons other than Terry Nichols in his plot to bomb the Murrah Building.

Moreover, significant circumstantial evidence points to the conclusion that those who aided Timothy McVeigh were members of a violent gang of bank robbers known as the Midwest bank robbers and to people living in Elohim City, a communal compound of anti-government violent radicals located in northeastern Oklahoma. As this Motion demonstrates, however, the federal government and state prosecutors have withheld much of this exculpatory information while other exculpatory material lay buried --- and more may still be buried -- in the voluminous files in the District Attorney's Office. The evidence withheld from the defense coupled with the evidence we have now discovered following Mr. Solomon's revelations directly substantiates Mr. Nichols' defense: Mr. McVeigh was aided by others and he manipulated Mr. Nichols to take the blame instead of these others. Because the federal government and the state prosecutors have misled this Court and have done so in a way that denies Mr. Nichols' his right to a fair trial, we now request the remedy that this Court promised - dismissal of this case with prejudice.

B. McVeigh and Others Unknown

When we began to review the 302s provided to us by the State, it became clear that there were numerous sightings of Timothy McVeigh in the company of other persons in Oklahoma City and in Kansas in the weeks and days before April 19, 1995. These sightings did not involve Terry Nichols. Rather, numerous witnesses identified a person or persons with Mr. McVeigh at times when Terry Nichols was clearly not present or described the accomplices with Mr. McVeigh in a manner that was totally inconsistent with Terry Nichols.7 In addition, there were frequent reports of persons driving the yellow Mercury Marquis owned by Mr. McVeigh or being seen riding in that Mercury either on April 19th or in the days before the bombing.8 There were also sightings of McVeigh and another person near the Murrah Building before and after the bombing.9 The information provided by these witnesses confirmed the existence of another person or persons aiding Mr. McVeigh. Once again, most of these sightings were at times that eliminated Terry Nichols as Mr. McVeigh's accomplice.

In addition, there were 302s that related sightings of Mr. McVeigh and another person or persons in a Ryder truck either on April 19th or before the bombing.10 Moreover, there were witnesses who clearly put another person with Mr. McVeigh when the Ryder truck was rented.11 Finally, there was considerable evidence that pointed to others unknown being with McVeigh at the Dreamland Motel in Junction City, Kansas in the days before the bombing. Specifically, Lea McGown, the owner of the Dreamland Motel, heard male voices, at least two and possibly three, coming from Room #25, McVeigh's room, at the Dreamland on either Saturday evening, April 15, 1995, or Sunday evening April 16, 1995.12 In addition, Jeff Davis from the Hunam Palace restaurant delivered an order to that same room on the evening of Saturday, April 15. He has previously testified that the man who came to the door to take the order was not Timothy McVeigh.13 Indeed, the calls made from Room #25 to order the Chinese food and to check on its delivery were made without using the Daryl Bridges calling card, suggesting that they were made by someone other than Timothy McVeigh who regularly used the Bridges card for local calls.14 All of this evidence points to the conclusion that a person or persons other than Terry Nichols assisted Mr. McVeigh in his plot to blow up the Murrah Building.

In the early months of 2001, therefore, the defense began to interview a number of these witnesses. Given the length of time that had passed, the defense had to spend hundreds of hours trying to locate these witnesses. What the defense learned, however, when a number of these witnesses were finally interviewed, was that many of these witnesses were confident that they had, in fact, seen Timothy McVeigh in or around Oklahoma City or in Kansas at relevant times in 1994-95. Based on the growing number of credible sightings, the defense undertook the significant challenge of trying to determine the identity of the person or persons who were assisting Mr. McVeigh.

C. McVeigh and Elohim City

The 302s provided to us by the State occasionally referenced persons connected to Elohim City, a communal compound located in northeastern Oklahoma near the city of Muldrow. The State disclosed in the materials turned over to us the fact that Timothy McVeigh, using the Daryl Bridges calling card, called Elohim City on April 5, 1995, two weeks before the bombing. He asked to speak to an individual named Andy Strassmeir. See Trial Transcript, United States v. Nichols, December 10, 1997, at 13718. Minutes later Mr. McVeigh used that same Bridges card to make a call to a Ryder truck rental store in Arizona. See State's Exhibit 553, p. 189. Nevertheless, the federal government and the state prosecutors have steadfastly denied any connection between Timothy McVeigh and Elohim City. Not surprisingly then, most of the information that we were able to obtain about Elohim City did not come from the 302s or the federal government, but from the state grand jury, from a motion filed by the defense in the McVeigh case, and from our own investigation.

From these sources we learned that a number of the residents of the Elohim City compound had long been known to both local and national law enforcement authorities for advocating violence and the overthrow of the government. In 1994 and 1995, the Reverend Robert Millar was the leader of Elohim City. The residents of Elohim City practiced a religion known as Christian Identity that promoted white supremacy. In 1994 and 1995, before the bombing of the Murrah Building, a number of well-known anti-government persons either lived in or passed through Elohim City, including Jim Ellison. Mr. Ellison was Reverend Millar's son-in-law, and former head of the Arkansas wing of a paramilitary anti-government group, the Covenant, Sword and Arm of the Lord ("CSA"). In 1983, members of this compound conspired with Richard Wayne Snell, another member of the CSA, to blow up the Murrah Building.15 Snell was later executed on April 19, 1995, by the State of Arkansas for killing a state trooper. He was buried in Elohim City. Media reports suggested a connection between Snell's execution and the Murrah Building bombing because Snell was alleged to have said shortly before his execution: "Governor, look over your shoulder, justice is coming."

We discovered that in the fall of 1994 the ATF began to investigate a person by the name of Dennis Mahon.16 Mr. Mahon was a leader of an organization called WAR (White Aryan Resistance). Not only was Mr. Mahon an avowed racist, but he was also a sworn enemy of the United States government who approved of the use of violence against the government. At one time, Mahon was also leader of the Oklahoma chapter of the Ku Klux Klan. In the fall of 1994, Mahon was a frequent visitor to Elohim City and a close friend of Andreas Strassmeir.

As part of their investigation into the activities in Elohim City, the ATF utilized a confidential informant to obtain information. The ATF later disclosed that the confidential informant was a woman named Carol Howe. While working as an informant, Ms. Howe spent time at Elohim City in 1994 and through April of 1995. Ms. Howe would report what she saw and heard about the activities at Elohim City to her ATF "handler," Special Agent Angela Finley-Graham.

Carol Howe reported to Agent Finley-Graham about the increasing militancy of those in Elohim City. She told Finley-Graham that Mahon and Strassmeir had discussed "targeting" federal installations for destruction, such as the Tulsa IRS Office, the Tulsa Federal Building and the Oklahoma City Federal Building. In fact, Mahon not only discussed the destruction of the Federal Building in Oklahoma City by bombing, but Mahon and Strassmeir took at least three trips to Oklahoma City in November 1994, December 1994, and again in February 1995. In fact, Carol Howe claims to have accompanied them during the December 1994 trip. See E-427, attached as Exhibit 2.

Carol Howe later testified at Mr. Nichols' federal trial and at the state grand jury investigating the Murrah Building bombing. She stated that following the Oklahoma City bombing she saw pictures of Timothy McVeigh in the media and realized that she had seen McVeigh in Elohim City. He was with Andreas Strassmeir. Ms. Howe believes that she saw McVeigh sometime around July 1994.17 He was using the alias of "Tim Tuttle." Ultimately, however, other than Carol Howe's testimony and evidence of Mr. McVeigh's April 5, 1995 phone call we could find little corroboration of this linkage between Mr. McVeigh and Elohim City.18

There is no doubt that Andreas Strassmeir was living in Elohim City in 1994 and until August of 1995. In fact, Mr. Strassmeir, a German national, was the security director at the Elohim City compound. On February 28, 1992, State Highway Trooper Vernon Phillips had stopped Strassmeir near Elohim City and searched his car finding a copy of The Terrorist Handbook.19 See E-427.20 Strassmeir was not only familiar with bomb making and weaponry, he organized paramilitary training sessions at Elohim City and regularly discussed taking direct action against the federal government. See id.; E-1866. After the bombing of the Murrah Building, Strassmeir admitted meeting Timothy McVeigh at a gun show in Tulsa in 1993 and discussing Waco with him. See D-14897. Furthermore, Mr. Strassmeir has been linked with several of the Midwest bank robbers and supposedly trained some of the robbers at Elohim City. See D-16207. In fact, he roomed for a while with Michael Brescia, one of the Midwest bank robbers. Strassmeir was in this country illegally on an expired visa on April 19, 1995.

On April 5, 1995, the same day that McVeigh was calling Strassmeir, the telephone records prepared by the FBI reveal that nine calls were placed by Timothy McVeigh to the National Alliance.21 The National Alliance is a neo-Nazi group that was founded by Richard Butler, the author of The Turner Diaries and The Hunter.22 See Exhibit 3, attached pamphlet entitled: "What is the National Alliance?" As that brochure demonstrates, the National Alliance is a hate group that preaches the superiority of the Aryan race and the need for a regime change in the United States. Undoubtedly, Timothy McVeigh firmly believed in the ideas espoused in The Hunter and The Turner Diaries and was sympathetic to the ideology of white supremacist organizations. In contrast, there is no evidence that Terry Nichols was a member of any white supremacist group. Indeed, Terry Nichols' marriage to a non-Aryan Filipino, Marife Nichols, is wholly inconsistent with the tenets of the National Alliance. The National Alliance and other Aryan hate groups are fundamentally opposed to interracial marriage. Exhibit 3 (the National Alliance pamphlet) sets forth the requirements for membership in the organization and makes clear that interracial couples and children will not be tolerated. It states:

Requirements for Membership: Ineligible persons: "No homosexual or bisexual person, no person actively addicted to alcohol or an illegal drug, no person with a non-White spouse or a non-White dependent, and except, in extraordinary circumstances, no person currently confined in a penal institution may be a member.

See also The Hunter (a novel about a man who kills mixed-race couples to incite a race war).

Nevertheless, prior to Mr. Solomon's revelations and our subsequent discovery of 1B3484,23 the defense did not make any significant progress in proving that Timothy McVeigh was, in fact, working with the people in Elohim City. Although the defense did spend considerable time trying to locate Ms. Howe, we have only been able to talk to her father and to her lawyer. They would not divulge her location so we have been unable to talk with her. Moreover, the defense believes that Andreas Strassmeir is out of the country. Consequently, we have been unable to talk to him about this case. Even if we were able to locate him, it is unrealistic to believe that Strassmeir or any of the residents of Elohim City would admit to the defense that they were involved with Mr. McVeigh or identify others who might have helped him.

D. McVeigh and the Midwest Bank Robbers

In our investigation, the defense learned of a claimed a link between Timothy McVeigh and members of a group of bank robbers known as the "Midwest Bank Robbers" (a.k.a., the Aryan Republican Army ("ARA")). The ARA was a group of bank robbers who committed twenty-two (22) bank robberies in states throughout the Midwest between October 1993 and December 1995. Law enforcement officials estimated that they netted over $250,000 from these robberies. The ARA was a militant, anti-government group who advocated "war" with the government. They used bombs during their robberies and in a mission statement clearly stated that the proceeds of the robberies were to be used to fund other acts of terrorism against the government.24 A homemade underground video, made by the members of the ARA and confiscated by the FBI during its investigation of the ARA, specifically references violence to government entities and preparing for a "court house massacre." The defense has obtained a copy of this video from journalist J.D. Cash. It is attached as Exhibit 4.

The known members of the ARA include the following persons: Peter Langan, Richard Guthrie, Jr., Kevin McCarthy, Scott Stedeford, Michael Brescia and Mark Thomas. Most, if not all of them, either lived in or visited Elohim City at some time before the Oklahoma City bombing.25 The following short biographies of these individuals will adequately describe them for purposes of this Motion:

a. Richard Guthrie, Jr.

Richard Guthrie was apprehended on January 15, 1996, in Cincinnati, Ohio. He was the first of the ARA members to be arrested. At some point following his arrest, he decided to cooperate with federal authorities in the prosecution of the other bank robbers. He was "debriefed" by federal investigators in March of 1996. He was purportedly offered a plea agreement that would have resulted in a sentence of up to twenty-five years imprisonment. On July 12, 1996, before his guilty plea and a week before he was scheduled to testify against his co-defendant, Peter Langan, Guthrie committed suicide in his jail cell in Covington, Kentucky.

b. Peter Langan

Peter Langan was arrested by federal law enforcement authorities in Columbus, Ohio, on January 18, 1996, three days after Guthrie was arrested. He was originally indicted for assault of on a federal agent and weapons charges. In March 1996, however, Mr. Langan was charged in a superseding indictment with two counts of bank robbery and additional weapons charges.26 During plea discussions, the federal prosecutors proposed a plea agreement that would have required Mr. Langan to be debriefed. Federal prosecutors advised Mr. Langan's defense counsel that he could assist himself by providing substantial assistance in other criminal investigations. Government counsel also advised defense counsel that they thought Mr. Langan could assist them with respect to the Oklahoma City bombing investigation. Ultimately, no plea agreement was ever reached. See Affidavit of Kevin Durkin, attached as Exhibit 5. As a result that information was never provided, and Mr. Langan proceeded to trial. In two separate trials he was convicted on 9 out of 12 charges including assault on a federal agent, two counts of bank robbery with a firearm and a bomb, and various other weapons charges. On December 18, 1998, Mr. Langan was sentenced to life imprisonment without parole plus 35 years. At the time of his arrest on January 18, 1996, Mr. Langan had in his possession several prepaid calling cards including three with the brand name "Driveline." These were prepaid calling cards issued by Fone America, Inc. (Exhibit 6, 302 dated 1/18/96, FBI file # 91A-CI-63809, MC-124). This 302 was not produced to the defense by the federal government or state prosecutors in this case. Rather, it was found in Langan's BOMBROB27 file.

c. Kevin McCarthy

Kevin McCarthy was arrested on May 24, 1996. He was indicted in federal court on six counts of bank robbery on January 30, 1997. After testifying for the federal government in the trials of Langan and Stedeford, he plead guilty to one count each of bank robbery, possession of a weapon during a criminal act, and conspiracy to commit armed robbery. Other charges involving alleged RICO violations were dismissed. He was sentenced to five years in prison and was placed in the federal witness protection program. At various times during 1994 and 1995, McCarthy lived in Elohim City.

d. Scott Stedeford

Scott Stedeford was arrested on May 22, 1996. Approximately six months later, he was found guilty in a jury trial in U.S. District Court in Iowa of three charges related to the 1995 robbery of an Iowa Boatman's Bank. On February 7, 1997, Stedeford was sentenced to 20 years in prison. He also pled guilty in the U.S. District Court in Philadelphia to conspiracy in six other bank robberies, and he received an additional 12 years. At various times in 1994 and 1995, Mr. Stedeford lived at Elohim City and was present at the compound the week before the Murrah Building bombing.28

e. Michael Brescia

Michael Brescia was arrested on January 30, 1997, on charges of conspiracy to commit seven of the Midwest Bank robberies. On May 30, 1997, Brescia pled guilty to robbing the Bank One in Madison, Wisconsin. He was sentenced to fifty-seven months in prison and was released early in March 2001. Brescia also had lived in Elohim City and at one point was engaged to the grand daughter of Robert Millar, the leader of the compound.

On July 2, 1996, six months before he was arrested on charges related to the bank robberies he committed in 1995, Brescia was contacted by telephone concerning his knowledge of Timothy McVeigh and the Oklahoma City bombing. See E-8564. At that time, he told the FBI he would not be interviewed outside the presence of his attorney, Kirk Lyons. Mr. Lyons was also the attorney for Andreas Strassmeir. Brescia told the FBI that he had been told that Timothy McVeigh had called Elohim City looking for Strassmeir.

f. Mark Thomas

Mark Thomas was arrested at his farm located in eastern Pennsylvania on January 30, 1997. On March 19, 1998, he pled guilty to plotting seven Midwestern bank robberies and using the cash to further the cause of the white supremacy movement. He was sentenced to eight years in prison. He was recently released into a work release program in January of this year. On April 5, 1997, his former girlfriend, Donna Mazaroff, was interviewed by an FBI agent in Alburtis, Pennsylvania. She stated that in late 1994 or early 1995, in a moment of intense anger, Thomas made a remark to the effect: "We are going to get them. We are going to hit one of their buildings, a Federal building, during the day. That's when there will be the most casualties. They will know what it is to lose their loved one, how it feels." See Exhibit 7 (302 # 17778).

In the discovery material provided to us by the State, we have found no mention specifically of the Midwest bank robbers. We did receive a few lab reports included in a group of over five hundred lab reports turned over to us in this case that are connected to bank robbery investigations that we now know were committed by members of the Midwest bank robbers gang. See attached Exhibits 8 and 9.29 Although one of these lab reports does refer to a bank robbery, there is no way from reading this lab report in isolation that one is able to connect it with the Midwest bank robbers gang. The other two lab reports contain only case numbers without any specific reference to the Midwest bank robbers. Thus, upon our original review of these lab reports, they were set aside as irrelevant because we were unaware that the FBI was investigating any connection or that there was any connection between Timothy McVeigh and the Midwest bank robbers.

There were in 302s provided to us a few references to people who we have come to learn were the Midwest bank robbers. Specifically, there were seven 302s and inserts which referred to Michael Brescia, none for Peter Langan, one for Richard Guthrie, five for Kevin McCarthy, four for Scott Stedeford, and nine for Mark Thomas. Many of these reports mention more than one of these individuals. In all, the defense was given fourteen separate reports that refer to the Midwest bank robbers. None of these reports contains information that would have linked any of them to the Murrah Building bombing. As such, it was not until the disclosures by Mr. Solomon and our subsequent investigation that we began to recognize the strong connections between the Midwest bank robbers, Timothy McVeigh, and Elohim City. We then obtained the ninety-one page 302, not from the State, but from Peter Langan's BOMBROB files describing the FBI March 1996 debriefing of Richard Guthrie after his agreement to testify on behalf of the federal government. Surprisingly, despite the fact that the FBI clearly had been investigating the connections between the Midwest bank robbers and the Murrah Building bombing, this 302 contains no mention of Timothy McVeigh or anything about the Murrah Building bombing other than a brief notation that the bank robbers left a newspaper article about Timothy McVeigh and the Oklahoma City bombing in one of their getaway cars.

There was some information in the discovery material the State provided to us, however, that shows that Mr. McVeigh was involved in bank robberies. For example, Jennifer McVeigh told the FBI that prior to the bombing her brother, Timothy, told her that he was involved in planning or setting up a bank robbery. See attached Exhibit 10. Describing a conversation that she had with her brother at the residence of their recently deceased grandfather, Ms. McVeigh said:

At that time [Timothy McVeigh] advised me as follows: He had been involved in a bank robbery but did not provide any further details concerning this robbery. He advised me that he had not actually participated in the robbery itself, but was somehow involved in the planning or setting up of this robbery. Although he did not identify the participants by name, he stated "they" had committed the robbery. . . . . It was my belief that this bank robbery had occurred within the recent past. I was not made aware of any of the details or if there were additional robberies involving my brother or any of his associates. I do recall that my brother remarked that the money that he had in his possession was his share of the proceeds.

McVeigh's grandfather died on October 16, 1994. McVeigh returned home to Lockport, New York sometime in November 1994. Banks were robbed by the Midwest bank robbers in Overland Park, Kansas on September 21, 1994, and in Columbus, Ohio on October 25, 1994.

Moreover, in one letter that McVeigh wrote to his sister he talks approvingly of robbing banks. He states in that letter:

To start with, the credit "scam" (or our friend who knocks over banks . . .) In the past, you would see the news and see a bank robber, and judge him a 'criminal." But without getting too lengthy the Federal Reserve and the banks are the real criminals, 'cash" as we know it is counterfeit, and a dollar is just worthless paper, so where is the crime in getting even / fighting a criminal? I guess if I reflect, it's sort of a Robin Hood thing, and our gov't is the evil King.

See attached Exhibit 11. This letter was dated December 24, 1993, approximately two months after the first robberies attributed to the Midwest bank robbers took place in Columbus, Ohio. When these statements are read together, they constitute admissions by Timothy McVeigh that he was involved in a bank robbery. It is much more likely that the proceeds of this bank robbery in which Mr. McVeigh participated provided the funding necessary to bomb the Murrah Building rather than the so-called robbery of Roger Moore. It also is very likely - given the circumstantial evidence described below - that the bank robbery to which Mr. McVeigh is referring is one he planned with the Midwest bank robbers.

One of the important links in the State's circumstantial case against Terry Nichols has been the prosecutors' claim that Terry Nichols robbed Roger Moore on November 5, 1994. The State lacks any direct evidence but is relying solely on circumstantial evidence and alleged statements by Timothy McVeigh to Michael and Lori Fortier to pin this robbery on Mr. Nichols. Additionally, the State claims that Mr. Nichols shared the proceeds of this robbery with Mr. McVeigh to finance the bombing of the Murrah Building. Nevertheless, significant evidence will be introduced that shows that Roger Moore was not robbed in the first place. For example, Roger Moore did not call the sheriff after the alleged robbery until prompted to do so by his neighbors and his description of the robber changed over time. The sheriff and representatives of Moore's insurance company who investigated the alleged robbery all believed that he had made up the story. In addition, when Moore returned to his home with his neighbors after the alleged robbery, he went directly to the place where the telephone lines had been severed, although he had told them that he immediately went to their home after getting out of the restraints he alleged were used on him.

If, in fact, Roger Moore was robbed on November 5, 1994, evidence that will be introduced at trial supports the conclusion that Terry Nichols was not the robber. For example, Moore alleges that the robber had a one-inch beard, a dark complexion and strong body odor. Days before the alleged robbery, Lana Padilla saw Mr. Nichols without any facial hair. In addition, Mr. Nichols is light-complected and was known for having good hygiene. Finally, tire tracks taken near where Moore's van was abandoned following the robbery did not match the tires on Mr. Nichols' truck.

Indeed, if Mr. Moore was robbed on November 5, 1994, circumstantial evidence suggests that the actual robber(s) may have been members of the Midwest bank robbers. Peter Langan is expected to testify that he and Richard Guthrie, Jr. visited Roger Moore's home at least twice before the alleged robbery. In addition, videotape seized from Mr. Guthrie's property, entitled "Contract," allegedly contained images of Roger Moore's home. Unfortunately, we have reason to believe that this videotape was destroyed by the federal government. Finally, an Arkansas driver's license in the name of "Bob Miller" was found in a storage facility rented by the bank robbers. "Bob Miller" is an alias used by Roger Moore. Other testimony at trial will show that, prior to the alleged Moore robbery, Richard Guthrie, Jr. possessed everything that Moore described the robber as wearing and using during the robbery; namely, a ski mask, "Israeli combat boots," plastic restraints, and the exact type of weapon allegedly used by the robber. Conversely, in the case of Mr. Nichols, there is no evidence that he ever committed a violent act in his life, let alone committed an armed robbery. Moreover, the State cannot connect Mr. Nichols to the specific clothing and weapon described by Moore. Despite the fact that the federal government was aware that evidence seized from the Midwest bank robbers tied them to Roger Moore "robbery," none of this information was provided to the defense.

E. Frustrating the Defense Investigation

In the summer of 2001, defense investigation was shut down because of the funding controversy. It was not until January of 2003 that the defense began to resume investigating this case. Most of the defense efforts, however, at that point were consumed getting ready for the preliminary hearing scheduled for May 2003. It was only after the preliminary hearing, in the summer of 2003, that the defense began in earnest to resume its investigation.

At this point, the defense faced a truly daunting challenge. With the trial set for less than a year away, the defense had to locate and interview hundreds of witnesses when we had only reviewed a small fraction of the material contained in the 37 files cabinets located in the District Attorney's Office. It is true that theoretically we have had access to the materials in those cabinets since January of 2000. As a practical matter, however, given the sheer volume of discovery provided to the defense, we had only been able to review a small percentage of the material in those cabinets. Before the team was disbanded in July 2001, the defense had concentrated on organizing the voluminous discovery material and reviewing as many of the 302s as possible. Our problems were compounded by the state prosecutors' initial resistance to our efforts to copy all of the material in those cabinets or to provide us the indexes that they had. In addition, the state prosecutors were unwilling to allow us to scan those materials so that they could be computer searchable.30 It was not until May 30, 2003, that this Court ordered that the indexes be provided to us and that the defense be permitted to scan those documents. It took several months for the defense to scan a considerable number of those documents, but the time and expense involved was too great to scan all of the materials in the possession of the State. In fact, many of the documents in those file cabinets remain unread.

It was at that time that the defense sent a letter to Ms. Elliott setting forth its defense theories and requesting any exculpatory material given those theories. Specifically, the defense asked for any information that pointed to the fact that Timothy McVeigh conspired with others whose identities were still unknown to bomb the Murrah Building. A copy of that letter is attached as Exhibit 12. We sent this letter to Ms. Elliott outlining our defense theories, therefore, because we knew we would be unable to physically search all of the 37 file cabinets. She continued to insist, however, that the full extent of her Brady obligation was turning over the 302s in her possession and making the 37 file cabinets available for our inspection. Because we feared that there was, in fact, exculpatory material that we were missing in the District Attorney's Office, we continued to push Ms. Elliott to disclose material as requested in our letter.

Our last Motion for Continuance spells out our efforts to compel the federal government and the state prosecutors to live up to their obligation to disclose all exculpatory material about the Midwest bank robbers, Elohim City, and McVeigh's involvement with members of this gang and with Elohim City. Not only have the federal government and state prosecutors failed to turn over exculpatory evidence, but they have consistently represented that none exists. Moreover, they have done so while blocking our efforts to learn more about Mr. McVeigh's connection with other suspects, especially those in Elohim City. The state prosecutors vigorously resisted our efforts to obtain the state grand jury transcripts31 and fought our efforts to obtain unredacted 302s.32 They resisted when we asked Judge Linder to order them to contact other law enforcement agencies to obtain records relevant to the OKBOMB investigation.33

Moreover, the federal government and the state prosecutors have thwarted our efforts to find out more about Elohim City and the Midwest bank robbers and their connection with McVeigh by improperly invoking the Touhy doctrine at the conditional examinations in this case. One example is the pretrial conditional examination of Special Agent William Davitch of the FBI. When defense counsel attempted to question Agent Davitch concerning his knowledge of Kevin McCarthy, one of the Midwest bank robbers, the attorney for the Department of Justice and the state prosecutor objected. See Conditional Examination of William Davitch, December 2, 2003, at 33-35. This is particularly illustrative of the state and federal governments' efforts to block our inquiry into the connection between the OKBOMB investigation and that of BOMBROB because it turns out that Agent Davitch was the one of the case agents on the BOMBROB investigation.34

Another example of this is the conditional examination of FBI Agent Lou Ann Sandstrom. Mr. Hermanson asked S.A. Sandstrom:

Did your investigation uh, include looking at any connection between any of the following organizations and Mr. Timothy McVeigh or Michael Fortier and the Oklahoma City bombing? Uh, the White Arian [sic] Resistance, Elohim City, Arian [sic] Republican Army, Carol Howell [sic], Dennis Mahan [sic], Andreas Strassmeir, Reverend Robert Mallar [sic], Bruce Mallar [sic], Chevy Cheviekehoe [sic], C-h-e-v-i-e-k-e-h-o-e, Cheyne Cheviekehoe [sic]. Cheyne is C-h-e-y-n-e. Peter Langan, L-a-n-g-a-n. Peter Ward, Tony Ward, Michael Brescia, B-r-e-s-c-i-a, Kevin McCarty [sic], Richard Guthrie (sic), Scott Stedford [sic], S-t-e-d-f-o-r-d, Mark Thomas, Ray Willie Lampley, L-a-m-p-l-e-y, and Kurt - Kurt Lyons, L-y-o-n-s?

Conditional Examination of Lou Ann Sandstrom, December 22, 2003, at 57. Mr. Thomas Ferraro, AUSA, on behalf of the DOJ instructed the witness "not to answer any question posed to her uh, covered under paragraphs one and two of the Defendant's request, which had been specifically excluded under our Touhy letter on page three." Id. at 57-59.

The FBI, the Department of Justice, and the state prosecutors might have been successful had it not been for AP reporter John Solomon. Mr. Solomon's first article on February 25, 2004, spurred the defense to file our last Motion for Continuance. On March 11, 2004, Mr. Solomon published a second article detailing more information about the FBI investigation into the connection between Timothy McVeigh and the Midwest bank robbers. Attached as Exhibit 13. Based on the information learned from Mr. Solomon, Mark Earnest went to the offices of J.D. Cash, a reporter with the McCurtain Gazette located in Idabel, Oklahoma. The defense had learned that Mr. Cash had obtained defense files relating to Peter Langan's federal prosecution from Langan's attorneys. In the more than twenty-five boxes of documents, the defense found additional evidence that the FBI did, in fact, as early as a week after the bombing, investigate the connection between Timothy McVeigh and the members of the Midwest bank robbery gang.

F. Solomon's Documents

At the hearing on March 1, 2004, the defense provided the Court with copies of the four documents referred to in AP reporter John Solomon's February 25, 2004 article. Those documents are attached here as Exhibit 14. Following the hearing on March 1, the defense obtained additional documents from Mr. Solomon. A review of those documents provided to us by Mr. Solomon clearly shows that the FBI was actively investigating -- beginning shortly after the bombing -- a connection between OKBOMB and BOMBROB as well as a connection between Timothy McVeigh and Elohim City. This is significant for three reasons. First, given the other evidence suggested in this motion, evidence that points to a connection between McVeigh and to the Midwest bank robbers or to persons in Elohim City directly supports Mr. Nichol's theory of defense in this case.

Second, the federal government has acknowledged that it is looking into why certain information about BOMBROB was supposedly not communicated to the OKBOMB Task Force. Additionally, the federal government has blocked our efforts to question witnesses about the Midwest bank robbers and Elohim City and continues to block access to other documents generated in the OKBOMB investigation. Finally, the federal government has withheld from the defense virtually all of the documents pertaining to the BOMBROB investigation. The federal government's evasive behavior strongly suggests that there is other exculpatory material in its possession. Indeed, the documents we got from Mr. Solomon are certainly not complete. One is missing a page and others refer to other documents we have never been provided.

Third, exculpatory evidence includes impeachment evidence or evidence that mitigates a defendant's involvement as well as that which points to his innocence. These documents clearly contain exculpatory evidence. Yet, none of the following documents discussed by the defense have ever been turned over to us by the federal government or state prosecutors in this case. Nor were they ever turned over to Mr. Nichols in the federal case.

Equally significant, however, is that these documents and the information set forth in the following sections of this Motion show that the federal government and the state prosecutors have not truthfully responded to this Court's December 30th directive. Rather, it is clear that the federal government knew considerably more about Mr. McVeigh and his connections to Elohim City and the Midwest bank robbers than acknowledged when Mr. Deitch wrote his letter of January 12, 2004. Indeed, it would not have required the federal government to have conducted the massive undertaking suggested in his letter because the federal government had already collected considerable information that it was simply refusing to provide the defense or this Court.

Moreover, it is totally disingenuous for Ms. Elliott to provide a list of 302s and inserts in response to this Court's December 30th directive and to fail to acknowledge the host of other documents that are directly responsive to this Court's inquiry.35 Certainly, the state prosecutors have been well aware of the investigation into a connection between OKBOMB and BOMBROB. Indeed, while conducting the Oklahoma County Grand Jury, investigating the Murrah Building bombing, Ms. Lister (then Ms. Gump), while questioning Carol Howe put a picture of Peter Langan in front of her and asked her if she had seen him in Elohim City. Howe said she had. She also said she had seen some of the other bank robbers there.36 Clearly, Ms. Lister would not have been asking about these individuals and their connection to Elohim City absent a familiarity with the Midwest bank robbers' case. Yet, as we demonstrate in the rest of this Motion, absent Mr. Solomon's revelations we would have had no way of connecting this line of questioning with the Midwest bank robbers or their link to this case.

A review of the documents provided to us by Mr. Solomon reveals the following:

Exhibit 15

Exhibit 15 is a four-page FBI memorandum that contains the following information:

Date: January 1996

From: Director, FBI (174A-OC-56120) [Oklahoma City bombing case number]

To: CP (Command Post) Oklahoma / Routine/

(and others)

On page three of this memorandum, it states that:

"While there is no evidence to directly link [redacted] to the BOMBROB incident, it would appear possible that [redacted] could have knowledge and/or conspiratorial input into such criminal activity.

Information has been received through the Southern Poverty Law Center (SPLC) that one [redacted] AKA [redacted] telephone call from [redacted] on or about 4/17/95, two days prior to the OKBOMB attack, when [redacted] of the SPLC, was in the white supremacist compound at [redacted], OK. [Redacted] allegedly has had a lengthy relationship with [redacted] one of two indicted OKBOMB defendants. [Redacted] advised that [redacted] is currently residing with [redacted] in [redacted] NC, and plans to leave the U.S. via Mexico, in the near future. [Redacted] further advised that he/she has learned that [redacted] for an unknown reason.

Prior OKBOMB investigation determined that [redacted] had placed a telephone call to [redacted] on 4/5/95. A day that he was believed to have been attempting to recruit a second conspirator to assist in the OKBOMB attack. The OKBOMB Command Post is attempting to verify the version of events as set forth by [redacted] and to develop further information."

This FBI memorandum is a veritable bombshell. It was from the Director of the FBI and it specifically contains the Oklahoma City bombing FBI case number. The copy obtained by the defense also has on the first page a stamp and the handwritten number of one of the numbers assigned by the FBI to a Midwest bank robbery. The handwritten FBI case number is 91A-CM-41359-409. There is no question that this memo should have been provided to the defense.

The significance of this memo cannot be understated. It refers to somebody in Elohim City allegedly having a lengthy relationship apparently with McVeigh. Of critical importance is the fact that it refers to the April 5, 1995 telephone call from McVeigh to Elohim City on "a day that he [McVeigh] was believed to have been attempting to recruit a second conspirator to assist in the OKBOMB attack." Despite the obvious connection between McVeigh and Elohim City and despite the fact that the Oklahoma City bombing investigators clearly had this memorandum, it was never provided to the defense by either the federal government or the state prosecutors. More importantly, the memo clearly indicates that the FBI believed that McVeigh was in Elohim City to recruit a second conspirator "to assist in the OKBOMB attack." Obviously, this is not a reference to Terry Nichols nor to Michael Fortier. It is, however, explicitly exculpatory. If, in fact, this information is true, it directly refutes the State's theory that Terry Nichols was already intimately involved with Tim McVeigh in carrying out the Murrah Building attack. Although the memo does not indicate the basis for the FBI Director's belief, it unquestionably indicates that the FBI had additional, important information about an unknown "second conspirator" not set forth in this memo. The defense has not been provided either with this memo or the information supporting the FBI's conclusion.

Exhibit 16

Exhibit 16 is a five-page internal FBI memorandum that contains the following information:

Date: August, 1996

From: Director FBI

Subject: "Changed"; Kevin McCarthy, Scott Anthony Stedeford; Michael William Brescia, AKA fugitive; Peter Kevin Langan, Richard Lee Guthrie (deceased); Mark Thomas. . . . Investigation has determined that [redacted] has resided in Elohim City, Oklahoma for many years and his wife's father in law was said to have been a former head of security at Elohim City.

Information has been developed that [redacted] were at the home of [redacted] Elohim City, Oklahoma on 4/5/95 when OKBOMB subject, Timothy McVeigh, placed a telephone call to [redacted] residence. On 4/16/95, a telephone call was placed from [redacted] residence to [redacted] residence in Philadelphia division . . . .

Armed and Dangerous: ARA members advocate the violent overthrow of the U.S. government; are known to be armed; use explosives; and in the past have fired weapons at agents in an effort to avoid capture.

This is another critical memorandum from the Director of the FBI that clearly sets forth information surrounding McVeigh's telephone call to Elohim City on April 5, 1995. Importantly, this memo shows that the FBI was investigating the connection between the Midwest bank robbers and Timothy McVeigh. It clearly links McVeigh with Elohim City and it also indicates that additional information about the joint investigation of OKBOMB and BOMBROB is being developed that is not contained in this memorandum. Equally important, this memo refers to another call made from Elohim City on April 16, 1995, to Philadelphia - the hometown of one of the Midwest bank robbers. Although the memo contains redactions that make it difficult to read, the clear inference is that the FBI was connecting one of the Midwest bank robbers who was there at the time of the critical call on April 5th with the call that was made on April 16th. Despite the obvious significance of this information, this memorandum has still never been provided to the defense by the federal government or the state prosecutors. Moreover, even though we now have this memo, it is still in a redacted form that renders it of little use to the defense.

Exhibit 17

Exhibit 17 is four pages of a five-page internal FBI BOMBROB memorandum. Apparently, Mr. Solomon did not receive the first page of this memorandum and, therefore, we do not know when it was written. Nonetheless, this memorandum indicates that Peter Langan and Richard Guthrie are suspects in "the captioned matter" referring to the BOMBROB investigation. The memorandum goes on to discuss Guthrie's known military training in the use of explosives and directs certain FBI field offices to conduct further investigation into Guthrie's military training in explosives. On page five, the last line contains the notation "to FBI CP (Command Post) Oklahoma." The "CP" obviously refers to the Oklahoma City bombing command post. Since neither Langan nor Guthrie were ever accused of robbing a bank in Oklahoma, it is obvious that the FBI was looking into the possibility that the Midwest bank robbers assisted McVeigh in blowing up the Murrah Building. It is difficult to imagine how Mr. Coulson and Mr. Defenbaugh can claim that they were not fully briefed on the ongoing investigation as to the connection between the Midwest bank robbers and OKBOMB.37 This document, however, has still never been provided to the defense by the federal government or the state prosecutors.

Indeed, the lab report memos discussed earlier are a clear indication that the FBI was specifically investigating the connection between Timothy McVeigh and the Midwest bank robbers. Within two weeks of the bombing, the FBI was comparing the fingerprints of McVeigh and Terry Nichols to those found in a Cleveland bank robbery that was committed by the Midwest bank robbers. In view of the fact that this FBI memorandum was specifically directed to the Special Agent in Charge (SAC) in Oklahoma City on May 5, 1995, and even though they both specifically mention Timothy McVeigh's name and one of them mentions Terry Nichols' name and both of them mention the OKBOMB case number, there is no basis for the claim that the OKBOMB Task Force was unaware of the investigation into a connection between OKBOMB and BOMBROB. Additionally, it is interesting to note that Exhibit 8 states: "Reference: Telephone call April 26, 1995." This shows that within one week of the Oklahoma City bombing investigators were already concerned about the Midwest Bank robbers being involved.

Exhibit 18

Exhibit 18 is a four-page FBI memorandum that contains the following information:

Date: November 1995

From: FBI Omaha (174A-OC-56120) [Oklahoma City bombing case number]

To: Director FBI / Priority /

FBI [Command Post] Oklahoma City/ Priority /

Subject: OKBOMB; Major Case 117; EID, OO: Oklahoma City.

BOMBROB; BR (A); OO; Omaha (91A-om-41859) [A Midwest Bank Robber

FBI case number for a bank robbery in Omaha, Nebraska]

This memo refers to a telephone call between FBI special agents from Omaha, St. Louis, the Explosives Unit at FBI Headquarters, and OKBOMB Command Post. It states:

"For information of receiving offices, BOMBROB is investigating 17 bank robberies which have occurred throughout the Midwest area of the United States since January 1994. These robberies have occurred in seven states covering seven different FBI field offices. The last robbery occurred on August 30, 1995, in Madison, Wisconsin. . . .

On October 28, 1995, America's Most Wanted aired a segment on BOMBROB on their weekly telecast. Two composite sketches and one bank surveillance video photograph were presented, including the composite sketch obtained during the August 16, 1995 bank robbery that occurred in Bridgeton, Missouri.

The OKBOMB investigation detected a similarity between the sketch compiled during the August 16, 1995 bank robbery investigation and the composite prepared of an individual know as [redacted] or [redacted] (pronounced [redacted]). [Redacted] was identified as a third individual who accompanied [redacted] and [redacted] when they visited a Cassville, Missouri realtor named [redacted] at his office.

In approximately five of the 17 bank robberies involved in BOMBROB, some type of smoke grenade or grenade simulator was either left behind as a booby trap in the getaway vehicle or was ignited in the victim bank. The FBI laboratory is currently in possession of all of these devices. The FBIHQ Explosives Unit will be preparing a list of all serial numbers, lot numbers, or any identifying marks found on these devices and this list will be forwarded to the OKBOMB Task Force. It is the understanding of Omaha that Army CID will be able to conduct any follow-up investigation as to the origin of the grenade devices.

Oklahoma City Division at Oklahoma City, Oklahoma. Will provide the Omaha Division with any information regarding the smoke grenades and dummy grenades that will assist Omaha in the investigation of the BOMBROB matter."

It is patently obvious that the OKBOMB and BOMBROB Task Forces were investigating links between the bombing of the Murrah Building and the Midwest bank robbers. Even though this memo was specifically directed to the Oklahoma City Command Post and even though it specifically contains the FBI OKBOMB case number, it was never provided to the defense by the federal government or the state prosecutors. The composite developed in connection with the OKBOMB case was provided to us in discovery, but it was not identified or connected in any way to the composite of one of the Midwest bank robbers in the BOMBROB investigation. Moreover, the defense has never received this memorandum or the BOMBROB composite from either the federal government or the state prosecutors. Significantly, without this memorandum, the defense would never have been able draw this connection.

Exhibit 19

Exhibit 19 is a three-page FBI memorandum from the Omaha office to other offices including Oklahoma City.

Date: August 22, 1996

To: Oklahoma City

[and others]

Case ID#: [BOMBROB FBI case number typed in and another one hand-written]

Title: BOMBROB

MAJOR CASE 244

Details: For information of Little Rock and Oklahoma City, . . .

The memo contains information provided to the FBI by Midwest Bank robber Kevin McCarthy ("according to cooperating defendant Kevin McCarthy"). The memo explains that Kevin McCarthy told the FBI that Midwest Bank robber Scott Stedeford and bank robber co-conspirator Mark Thomas bought a getaway vehicle, a 1983 Chevrolet Suburban, white in color on April 17, 1995, in Fort Smith, Arkansas. Fort Smith is close to Elohim City. The memo goes on to say that, upon investigation, an Iowa Certificate of Title was issued on this vehicle on 4/21/95 (two days after the Oklahoma City bombing).

Less than a month after this FBI memo was written, Midwest bank robber Kevin McCarthy was interviewed by the FBI in connection with the Oklahoma City bombing investigation. (See 302# 16027, dated September 18, 1996, attached as Exhibit 20.) During that interview, McCarthy stated that on April 17, 1995, he was in Elohim City. He refers to Stedeford's purchase of a vehicle in Fort Smith, Arkansas. The 302 further indicates:

[McCarthy] and Stedeford left Elohim City and went to Pittsburg, Kansas. >From Pittsburg, Kansas they went to Des Moines, Iowa, for the purpose of registering the vehicle Stedeford had bought. McCarthy advised it was easier to register vehicles in the state of Iowa. They first heard about the bombing on the car radio enroute back to Pittsburg, Kansas from Iowa. McCarthy advised he returned to his home in Philadelphia from Pittsburg, Kansas.

The FBI investigation, as revealed in Exhibit 19, however, proves that McCarthy was not truthful when he was interviewed by the FBI in connection with the Murrah Building bombing. In that interview, McCarthy tells the FBI that he first heard about the bombing on the car radio when was returning from registering the vehicle in Iowa implying that he registered the vehicle before April 19, 1995. However, this memo, never provided to the defense, proves that McCarthy lied because the vehicle was actually registered in Iowa on April 21, 1995. Given the pervasiveness of the coverage of the bombing, it is unimaginable that a person would not have heard about it until April 21. Thus, this memo shows that McCarthy lied to the FBI in the interview documented in the 302 and disproves McCarthy's claimed alibi. Moreover, the fact that McCarthy lied to the FBI suggests that he was interested in covering up his whereabouts on April 19th and on the days leading up to the bombing. Despite the fact that McCarthy lied to the FBI and the FBI possessed information that refuted McCarthy's alibi, McCarthy was given a plea deal and a minimum sentence in exchange for his testimony at the trials of two of his co-defendants, Richard Guthrie and Scott Stedeford. The memorandum described above, which constitutes important impeachment evidence, has never been provided to the defense by the federal government or the state prosecutors.

Exhibit 21

Exhibit 21 is a two-page FBI memorandum from the BOMBROB case dated 8/23/96 and page 19 from a list describing 302s provided to defense counsel for Peter Langan, a defendant in the BOMBROB prosecutions.

Although the memo is partially redacted, it clearly describes a trip that a Special Agent in the BOMBROB investigation made to Muskogee, Oklahoma to interview a witness in that case. Upon further investigation, the "hard copy" of the 302 that resulted from the interview described in this memo reveals that the interview was that of Robert G. Millar, leader of Elohim City. A closer look at that 302, received from the State by defense counsel in this case, shows that the File # is redacted on all three pages. The obvious question is why would the FBI redact the File # on this 302? The logical answer is that the file number on that 302 is not the OKBOMB file number (174A-OC-56120) but rather that of a BOMBROB case. In fact, page 19 of a list of 302s provided to Langan's attorney by the federal government clearly shows that this 302 was part of that case. By redacting the case number in that 302, it appears that the FBI was attempting to prevent the defense from learning that the FBI was investigating a connection between the suspects in the OKBOMB case and those in the BOMBROB investigation.

The memo for Case ID #: 91A-OM-41859 [a BOMBROB case number for a bank robbery in Omaha, Nebraska] describes as an enclosure an attached 302 that was provided to OKBOMB "for information purposes only." The defense did receive this particular 302 in discovery. However, the defense did not receive the memo that provides an explanation as to the origin and relevance of the 302. Indeed, given the FBI's deliberate attempt to withhold critical information regarding the connection between the BOMBROB investigation and the investigation into the activities of Timothy McVeigh, the defense had no way of appreciating the significance of this 302 until after Mr. Solomon's disclosures.

Exhibit 22

Exhibit 22 is a lead sheet numbered "6996" that was filled out by Special Agent Angela Finley of the ATF. Although there is no date in the upper portion of the first page, it appears that she probably filled this lead sheet out on April 30, 1995.38

Among the comments made by Special Agent Finley in this lead sheet are:

"Brief Summary from investigative case file 43270-94-0124B"

"Mahon has detonated explosives at E/C."

"E/C is preparing for war against U.S. government"

"They support violence against the government."

"Robert Millar of E/C has made numerous trips to OKC."

"Robert Millar stated that he would be wiling to hide anyone who needed a place to stay at E/C. (Elohim City)"

'This group was planning a march in Waco during the Branch Davidian ordeal because they strongly support the Davidian's and strongly oppose the ATF."

The information contained in this "lead sheet" is not from some anonymous civilian with a hunch. Rather, Special Agent Finley was a federal law enforcement officer with an informant who was working undercover in Elohim City. It is important to note that S.A. Finley prepared the attached two-page official ATF report on May 22, 1995. See Exhibit 23. On page 1 of that report, SA Finley refers to picking up CI-183 (Carol Howe) and transporting her to Oklahoma City on April 21, 1995. Ms. Finley also indicates that on that day "[a] lead sheet was then completed." Assuming, based on the dates of lead sheets close in number to the above mentioned lead sheet #6996, it is apparent that this lead sheet could not be the one that Ms. Finley states she filled out on April 21, 1995. This is so because lead sheet # 6996 appears to have been filled out on April 30, 1995.

Lead Sheet # 6996 is a powerful example of the kind of information that is being withheld by the government in this case. It also demonstrates, yet again, the calculated efforts of the federal government to hide from the defense critical information that it has concerning the involvement of persons at Elohim City in the Oklahoma City bombing. The defense has not been provided the lead sheet # 6996 or the lead sheet completed by Ms. Finley on April 21, 1995 by either the federal government or the state prosecutors.

The importance of these two lead sheets is obvious. It also is obvious why the federal government did not want to provide the defense with access to all of the remaining undisclosed lead sheets. These lead sheets would demonstrate that the FBI was actively monitoring those inside Elohim City prior to the bombing. In addition, these lead sheets show that those in Elohim City were preparing for a war against the United States government. This confirms other information that we have received that Reverend Millar was calling for a "Holy War", in part, to avenge the ATF's attack on the Branch Davidian compound in Waco. Coupled with the other undisclosed information regarding Timothy McVeigh's connection with Elohim City, it supports the defense argument that Timothy McVeigh may well have been one of Elohim City's "soldiers" and that the bombing of the Murrah Building was orchestrated or at least assisted by those in Elohim City.

Moreover, the fact that those in Elohim City were upset about Waco and willing to use violence against the government clearly indicates that those in Elohim City would have been supportive of McVeigh's plan to blow up the Murrah Building. Although Terry Nichols, like many Americans, was upset by what happened at Waco, there is little evidence to suggest that he was willing to use violence against the government in response to Waco. On the other hand, this memo explicitly supports the argument that those in Elohim City were not only willing to but were actually preparing to wage war against the United States government because of Waco.

Equally important, it is clear from this lead sheet that this is only a "brief summary" from a larger investigative case file (43270-94-0124B) that unquestionably relates to the ATF's investigation into the activities in Elohim City. Given the seriousness of the information noted in this lead sheet and Ms. Howe's claims that she provided advance warning to the ATF about the threat to the Murrah Building, this lead sheet provides a compelling explanation for why the FBI and the ATF are withholding this information from the defense. Unquestionably, the fact that there was an ongoing investigation, as reflected in this lead sheet, indicates that the FBI and/or the ATF were aware of what was going on inside Elohim City. It is understandable, then, why the FBI has fought so hard to keep us from gaining access to the lead sheets and failed to provide us this investigative file. That is, either or both the ATF and FBI dropped the ball and failed to prevent the bombing of the Murrah Building or, at the very least, they wanted to deflect criticism for not having done enough to prevent the bombing.

Exhibit 24

Exhibit 24 is a two-page FBI memo generated in the BOMBROB investigation. The memo is directed to "Director" (of the FBI) using the Oklahoma City bombing FBI case number and also to "Oklahoma City" using the Oklahoma City bombing FBI case number. It contains the following information:

"To: Director, FBI Date: May 16, 1995

From: SAC, St. Louis (91-SL-179326) [a BOMBROB bank robbery case]

Subject: UNSUBS

Maryland Heights, Missouri [bank robbery]

TIMOTHY MC VEIGH

OKBOM;

MAJOR CASE 117

(174A-OC-56120)

Reference St. Louis airtel to Director, captioned "UNSUBS(2); . . . and FBI LABORATORY (Lab No. E-3427), dated 5/4/95."

This memorandum requests that the FBI laboratory compare "any shoes submitted as evidence in connection with OKBOM and cause comparison with shoe impressions lifted from those recovered in the Maryland Heights, Missouri bank robbery." The end of the memo, under the heading "leads," specifically directs the Oklahoma City Division of the FBI to "ensure that all possible shoes seized in connection with OKBOM" be submitted to the FBI lab for comparison of shoe impressions recovered in this bank robbery case.

In this FBI memorandum, written less than a month after the Oklahoma City bombing, the FBI are requesting impressions from the shoes of the suspects in the Oklahoma City bombing for purposes of comparing them to shoe impressions found at one of the Midwest bank robberies. Unquestionably, the FBI was investigating a connection between the Midwest bank robbers and the Oklahoma City bombing. Moreover, this memorandum also refers to a previous FBI "airtel" that specifically mentions Timothy McVeigh's name and which was dated May 4, 1995. Not only has the defense never received a copy of that May 4, 1995 "airtel" or this memorandum from the federal government or the state prosecutors; but we have also never received the results of such comparisons.

Exhibit 25

Exhibit 25 is a one-page memo found in the BOMBROB file. The memo refers to prints recovered during a Midwest Bank robbery that occurred on June 8, 1994 in Springdale, Ohio.

Date May 30, 1995

Reference: Communication May 11, 1995

Your No. 91A0-CI-63809 [a FBI Midwest Bank Robbery case number for a bank robbery in Cincinnati, Ohio]

The latent palm print is not a palm print of TIMOTHY MC VEIGH, TERRY NICHOLS or JAMES DOUGLAS NICHOLS.

Once again, this memo shows that early on in the Oklahoma City bombing investigation, the FBI was looking at the connection between the suspects in the Oklahoma City bombing and the Midwest bank robbery cases. The FBI compared the prints of Mr. Nichols and Timothy McVeigh to a suspect print found at one of the robberies performed by the Midwest bank robbers. Neither the federal government not the state prosecutors have provided this memo to the defense.

Exhibit 26

Exhibit 26 is a six-page internal FBI memorandum from August 1995 about the BOMBROB investigation marked "priority" which states on page 6: "Receiving offices are reminded of the 8/11/95 edition of the "USA Today" left behind in the get-away vehicle, opened to an article on Timothy McVeigh and the Oklahoma City bombing."

Within a few months of the Oklahoma City bombing, the Midwest bank robbers left a picture of Timothy McVeigh and an article about the bombing on the front seat of one of their getaway vehicles. The use of the term "reminded" suggests that there was an earlier communication to the "receiving offices" pointing out the fact that this article was found in one of the Midwest bank robbers' getaway vehicles. Needless to say, neither the earlier communication nor this memorandum was ever provided to the defense by the federal government or the state prosecutors.

Exhibit 27

Exhibit 27 is a six-page internal FBI memorandum that contains the following information:

"Date: December, 1995"

'From: FBI St. Louis (91A-)M-4_859) [FBI BOMBROB case number for a bank robbery in Omaha, Nebraska]"

"To: Director FBI / Priority /"

'FBI Oklahoma City / Priority /"

Page Four

"Since the August 3rd meeting, three additional robberies have been attributed to the BOMBROB group. These robberies are the August 6, 1995 robbery of the Magna Bank, Bridgeton, Missouri (St. Louis); the August 30, 1995 robbery of Bank One Madison, Wisconsin (Milwaukee, Madison RA); and the November 22, 1995 robbery of the Roosevelt Bank, St. Louis County, Missouri (St. Louis).

Beginning with the May 24, robbery in Louisville, Kentucky, the BOMBROB subjects started using the names of former FBI officials to purchase some of their getaway vehicles. In the August, 1995 robbery in Bridgeton, Missouri and the November, 1995 robbery in St. Louis County, Missouri FBI and ATF clothing have been worn during the robbery. Also in these last two St. Louis robberies a copy of an article on OKBOMB to include a picture of [redacted] and a copy of the Declaration of Independence, respectively, were left in obvious locations in the getaway vehicle to ensure recovery by law enforcement.

Since the August meeting, this investigation has been featured on the October 28, 1995 segment of America's Most Wanted (AMW), which resulted in a possible connection between BOMBROB and OKBOMB."

The first full paragraph on page two suggests that a Special Agent (SA) from FBI Oklahoma City CP (Command Post) participated in a meeting with several other Special Agents from around the country. This FBI memo further indicates that the Midwest bank robbers left additional "McVeigh" articles in the getaway vehicles used in other robberies beyond the one referred in Exhibit 26 above. Finally, this memo specifically refers to a "possible connection between BOMBROB and OKBOMB." The memo was disseminated to FBI Oklahoma City "priority" although none of the BOMBROB bank robberies took place there. Despite the fact that this memo was sent to the FBI in Oklahoma City, the defense has never received a copy from the federal government or the state prosecutors.

Exhibit 28

Exhibit 28 is a two-page memorandum generated during the BOMBROB investigation.

"Date: June 7, 1995

To: SAC, Cleveland

"Reference: Communication dated May 15, 1995"

FBI File No. 91A-CV-52143 [a BOMBROB bank robbery case involving a bank in Cleveland, Ohio]:

Specimens:

Q18 One video tape

ALSO SUBMITTED:

15 prints from video tape

"The (Q18) video tape was examined to locate frames depicting the bank robbers. These images were then compared to known photographs of TIMOTHY MCVEIGH and TERRY NICHOLS to determine if they were identical.

Due to a lack of image detail and resolution in the (Q18) videotape no meaningful conclusion could be reached regarding the identification of the depicted robbers. The submitted evidence is being returned herewith."

This FBI memorandum reveals attempts by the FBI to link Timothy McVeigh to a bank robbery performed by the Midwest Bank robbers. This memo was clearly written in response to a "communication dated May 15, 1995" which must have asked that McVeigh's and Mr. Nichols' pictures be compared with the surveillance tape of the bank robber of the Middleburg Heights, Ohio bank. Although this memo was included in a group of 550 lab reports turned over to us; see Lab Report 74, its significance was not apparent to the defense until after Mr. Solomon's revelations. Moreover, the defense still should have received a copy of the May 15, 1995 communication that presumably contained some information and the basis for requesting the examination of the bank robbery videotape and its comparison to the likeness of Timothy McVeigh and Terry Nichols. Finally, the bottom of the first page of the memo states: "Enclosure 1 - SAC, Oklahoma City." SAC means Special Agent in Charge. It is unclear what is meant by "Enclosure -1." Neither the enclosures nor the earlier communication were provided to the defense by the federal government or the state prosecutors.

Exhibit 29

Exhibit 29 is Insert #E-4206, a document that actually was turned over in discovery to the defense by the State. Exhibit 29 reveals that an investigation was conducted on May 4, 1995, at San Francisco, California by Special Agent (SA) Thomas P. Ravenelle. It states:

"Reference Bureau teletypes to all field offices dated 4/27/95, and 5/1/95.

Referenced Bureau teletypes directed all field offices to review bank robbery files and compare methods of operations (mo's) to mo's outlined in the teletype dated 4/27/95, which are believed to have been used by subject MCVEIGH and his associates."

Although this document was produced by the State, its significance was not apparent to the defense because of the absence of the other documents described in this motion and the fact that the FBI sanitized the materials provided to the defense to mask the fact that it was investigating a connection between McVeigh and the Midwest bank robbers. The Insert does show that as early as April 27, 1995, one week after the bombing, the FBI made a connection between bank robberies and "MCVEIGH and his associates." This April 27, 1995 FBI memo referenced in this Insert actually contains a bank robbery "mo" that the FBI "believed" to have been used by McVeigh and his associates. Neither this April 27, 1995 memo, nor the May 1, 1995 memo referred to in Insert E-4206 has ever been provided to Mr. Nichols. Clearly, these memos set forth additional information regarding the connection between Timothy McVeigh and the Midwest bank robbers.

G. Critical Information Contained in 1B 3484

Based on the information received from Mr. Solomon and Mr. Cash, the defense decided to go back and review the materials provided to us by the State to determine whether or not there was additional material that supported a connection between Timothy McVeigh and the Midwest bank robbers or those persons connected to Elohim City. The defense discovered for the first time in this new review, a group of documents contained in a 1B file - 1B3484. That 1B file consists of 1,354 pages of documents and reports generated by the United States Secret Service related to the investigation of Timothy McVeigh and Terry Nichols. A review of this 1B file, in light of the new information the defense had received from Mr. Solomon and Mr. Cash, provides powerful support for the argument that Tim McVeigh was assisted by persons in Elohim City and by the Midwest bank robbers in carrying out his plot to blow up the Murrah Building. Although this 1B file was in the file cabinets maintained in the District Attorney's Office, the defense did not actually review 1B3484 until March of 2004.

In fact, it was not until Mr. Earnest found Langan's calling card numbers and we began a computer search for telephone records that we inadvertently stumbled across 1B3484. Upon reviewing 1B3484 looking for phone records, the defense for the first time learned that it contained significant exculpatory material. Although specifically directed by this Court on December 30, 2003, to let this Court and the defendant know if they "have any hint, any indication, direct or indirect, that any of these groups played a role in the bombing of the Murrah Building," 1B3484 was never identified by the state prosecutors as a document containing exculpatory material. Indeed, the first page of the critical Secret Service timeline discussed below contains the handwritten notation: "Remove." Obviously, someone in the federal government or on the state prosecutors' team recognized the importance of the exculpatory material described in 1B3484. Fortunately, this removal directive was overlooked or ignored.

A reading of 1B3484 makes perfectly clear, however, that the federal government and the state prosecutors still have not provided Mr. Nichols all of the exculpatory material that has been gathered in connection with the investigation of the Oklahoma City bombing. Moreover, as the "removal" notation dramatically illustrates, the federal government and the State have sought to keep the defense from discovering this vital evidence. Specifically, 1B3484 contains the following:

Exhibit 30

Exhibit 30 is an official six-page report directed to the "Intelligence Division" of the Secret Service and dated May 31, 1995. The report also indicates that the Tulsa RA has been in contact with all local and federal law enforcement agencies and has been cooperating with the ATF and the FBI in the investigation of the Murrah Building bombing. The report describes the location, membership, leadership, and history of the militia group in Elohim City. The report noted that the Elohim City militia was a "reformation of the CSA group [Covenant, Sword, Arm of the Lord]" that had surrendered to the ATF and FBI after a long standoff on April 19, 1985. The report also noted that several former Branch Davidians were believed to be occupants of Elohim City.

The report also describes the links between Elohim City and groups in South Dakota, Michigan, and other militia groups in the Northwest as well as "very strong connections with Posse Comitatus groups in Pennsylvania." The report further noted that the group had received training from two former members of the German army, one of whom was believed to be Andreas Karl Strassmeir.

After discussing Robert Millar, who is described as a strident racist and noting that his son-in-law James Ellison led the CSA movement in Arkansas, the report notes that:

. . . It was Ellison who was the camp commander of the CSA camp in northwest Arkansas that was the subject of the standoff with the FBI and ATF; the camp surrendered to federal authorities on April 19, 1985.

Millar also was an acquaintance of Richard Snell, a former member of the Arkansas CSA. Snell was executed by the State of Arkansas after Snell had been convicted of murdering a black Arkansas state trooper. Millar attended the execution of Snell, and Snell is buried at Elohim City. Snell was executed by the State of Arkansas on April 19, 1995, the day of the bombing in Oklahoma City.

Investigation regarding the Oklahoma City Bombing has revealed that Tim McVeigh telephoned Elohim City at least two times. One call was placed after McVeigh rented the Ryder truck used in the bombing, and another call was placed sometime before the bombing. Records indicated McVeigh was ticketed by an Arkansas State Trooper on October 12, 1993, on a road approximately 20 miles from Elohim City.

The date April 19 apparently has much significance to Millar, McVeigh and the right-wing organizations. April 19 has been linked by these groups with many alleged historical events. The link between Millar, McVeigh, the Oklahoma City bombing and the fact that Snell was executed on the same day as the Oklahoma City bombing remains under investigation.

Finally, the report notes that the ATF has an active investigation of the Oklahoma militia and the Elohim City group. It also notes that the Secret Service would be meeting with the ATF and FBI supervisors to work together on any continuing investigations regarding these groups.

The importance of this intelligence report is undeniable. First, the Secret Service highlights in this report significant background material about the group in Elohim City. The report shows the rabid anti-government attitudes of those in Elohim City and directly links them to Waco. Indeed, the connections between those in Elohim City and the April 19th Murrah Building bombing are spelled out in chilling detail. Much of this report corroborates the statements made by Carol Howe. She not only said that Strassmeir and Mahon had talked about making bombs and the need to take action against the federal government but that Strassmeir specifically told her he was interested in blowing up a federal building. Indeed, she indicated that they had targeted the Murrah Building. In addition, Howe described Reverend Millar as urging the residents of Elohim City to engage in a "Holy War" against the federal government. Howe also described that the residents at Elohim City were very familiar with what had happened at Waco and admired David Koresh. She also reported that there were many weapons stored at Elohim City and that Strassmeir regularly led military training exercises. Strassmeir not only was familiar with bomb making but copies of The Turner Diaries were readily available in Elohim City. See E-427 (interview with Carol Howe).

Second, incredibly, neither the federal government nor the state prosecutors have ever revealed to any one that Timothy McVeigh made more than one phone call to Elohim City. The defense had been informed that Mr. McVeigh made a phone call to Elohim City on April 5, 1995, using the Daryl Bridges phone card. Yet, this Secret Service report reveals that Timothy McVeigh called Elohim City at least two times with the second time being after he had rented the Ryder truck. Such evidence directly points to Mr. McVeigh's connection to Elohim City.

Unquestionably, this evidence is exculpatory in nature. Indeed, in view of Exhibit 22 and all of the other evidence the defense has learned since Mr. Solomon's revelations, it is clear that those in Elohim City intended to wage war against the government. Moreover, April 19th was an important symbolic date to those in Elohim City. Given Mr. McVeigh's relationship with those in Elohim City, the fact that the bomb was detonated on April 19th is hardly a coincidence. Rather, this report convincingly supports the defense theory that it was persons connected to Elohim City who assisted Mr. McVeigh in the bombing, including the Midwest bank robbers.

In addition, this report makes it clear that various agencies were going to work together on a continuing investigation of Elohim City and the Oklahoma militia. Despite the fact that the document specifically indicates that there will be regular updates provided, we have not received the reports that reflect that continuing investigation. Indeed, another document we uncovered in our post-Solomon investigation confirms that the ATF was continuing to investigate Elohim City and the link with Mr. McVeigh. Exhibit 31 is a Department of Treasury BATF form for "Request for Advance of Funds" signed and dated by Angela Finley-Graham and her superior David Roberts on May 18, 1995, contains the following handwritten information in the "Explain/Justification" part of the form:

This investigation involves the Bombing of the Murrah Bldg. in Oklahoma City, OK. It is suspected that members of Elohim City were involved directly or indirectly through conspiracy. It is suspected that suspect #2 may be at the location.

Once again the basis for such "suspicions" are not set forth in any report we have received.

Moreover, we also know that Ms. Howe's observations were, in fact, corroborated by another person inside Elohim City. It was only after the disclosures by Mr. Solomon and our new look for evidence connecting Timothy McVeigh to Elohim City that we again came across 302 # 14815. Attached as Exhibit 32. We had presented this redacted 302 in a group of redacted 302s to Judge Linder asking that we be provided an unredacted version. Judge Linder reviewed an unredacted version of this document in camera and denied our request, ruling that the 302 would not lead to relevant or admissible evidence.39 It is clear, however, in light of all the other evidence we have now learned about Elohim City, that this information is highly relevant to the defense of this case. The witness in this redacted 302 directly connects Timothy McVeigh with Elohim City. This redacted 302 indicates that the unknown person connects Timothy McVeigh with Elohim City. The 302 states: "[The unknown interviewee] stated that [redacted] was "99 percent sure" about having seen McVeigh and "150 percent sure" about [Andreas] Strassmeir. [Redacted] advised that [redacted] could determine the exact dates of the visits when [redacted] observed Strassmeir and McVeigh [redacted] to determine when [redacted] had visited the compound [redacted]." We do not know who this person is, but it appears likely that he or she has additional information about McVeigh and his activities inside Elohim City. Although the State turned over this redacted 302 to us, they have not provided us the name of this witness, which effectively prevents us from making any use of this information.

Finally, this second call and the existence of this second witness provides additional corroboration of Ms. Howe's observations. Not only did she warn the ATF of her concerns about the military buildup in Elohim City, but she warned of a potential "Holy War." She also specifically warned that Strassmeir and Mahon were targeting the Murrah Building. In fact, she accompanied them to Oklahoma City to scout out the Murrah Building. It is inconceivable that the federal government and the state prosecutors would withhold this information from the defense and this Court.

Exhibit 33 and Exhibit 34

Exhibit 33 is page 73 of a 129-page timeline prepared by the Secret Service and contained in the 1,354 pages of 1B3484. Exhibit 34 is page 79 of that same timeline.

Exhibit 33 contains the following entry for Monday, April 24, 1995 (emphasis added):

A witness to the explosion named Grossman claimed to have seen a pale yellow Mercury car with a Ryder truck behind it pulling up to the Federal Building. Mr. Grossman further claimed to have seen a woman on the corner waving to the truck. ATSAIC McNally noted that this fact is significant due to the fact that the security video shows the Ryder truck pulling up to the Federal Building and then pausing (7-10 seconds) before resuming into a slot in front of the building. It is speculated that the woman was signaling the truck when a slot became available.

Exhibit 34 contains the following entry for Tuesday, April 25, 1995 (emphasis added):

The initiation device is still unknown at this time. However, based on their military training, the simplest and most reliable initiation system would be TIME FUSE. Security video tapes from the area show the truck detonation 3 minutes and six seconds after the suspects exited the truck. A radio controlled (R/C) activation device is possible, if the suspects constructed or purchased such a system. One possible lead could be directed at "Ballisticorp" which stated that they sold three blowguns to the suspect, which normally cost $20.00 each, however, the COD bill was $600.00. The company may also sell R/C equipment. (GLOD).

These exhibits conclusively prove that the federal government and state prosecutors have concealed critical videotapes from the defense. Once again, the significance of these tapes is beyond dispute. Not only do the videotapes show the actual detonation but they apparently reveal that suspects got out of the Ryder truck immediately prior to the detonation.40 This evidence explicitly corroborates the testimony of numerous witnesses who claimed that they saw McVeigh with another in the Ryder truck.41 By hiding these videotapes, the FBI allowed federal prosecutors to impeach truthful witnesses and make them appear incredible. For example, Daina Bradley42 in Mr. Nichols' federal trial was aggressively cross-examined by Patrick Ryan and made to appear unbelievable when she claimed that she saw two men getting out of the Ryder truck. Moreover, the sequence of events as reflected in these videotapes may resolve questions about the timing of events leading up to the explosion.

Although the significance of such videotapes is obvious, the defense has never received a copy of these videotapes. Even more troubling, despite our repeated requests for any relevant videos related to the bombing, this Secret Service report confirms the existence of critical videos that we and this Court have been repeatedly assured do not exist. Contrary to the federal government's and state prosecutors' representations, all relevant videos have not been provided to us.

Exhibit 36

Exhibit 36 is page 126 of the Secret Service timeline.43 It contains the following entry for Friday, May 19, 1995 at 5:45 p.m.:

The FBI asked the Fortiers who they believe were involved in the bombing. They stated the Nichols brothers, Colbern, Kevin Nicholas and Bob LNU, from Arkansas.

Steve Colbern was a friend of Timothy McVeigh and shared McVeigh's hatred of the United States government. Evidence will be introduced at trial to show that Mr. Colbern wrote several letters to Timothy McVeigh expressing an interest in joining McVeigh in his anti-government activities. In addition, we will introduce evidence that McVeigh left a letter for Colbern attached to a utility pole in the desert, in which McVeigh stated that he was looking for "fighters" not "talkers." Colbern is a chemist with experience in bomb-making, who expressed a desire to take action against the federal government.

Nearly three years after the federal trials of Timothy McVeigh and Terry Nichols, the only two perpetrators of the bombing according to the federal and state governments, federal investigators conducted interviews with people associated with Steven Colbern. This Court also received the reports of these interviews as exhibits to our last Motion for Continuance. These interviews show that McVeigh was in direct contact with Colbern before the bombing and that Colbern's friends lied to the FBI to cover up that connection. Those interviews also show that Fortier knew Clark Vollmer and that he had purchased drugs from him - contrary to Fortier's testimony at the preliminary hearing in this case. See Preliminary Hearing Transcript at 111, May 13, 2003.

Mr. Fortier was also asked by defense counsel at the preliminary hearing in this matter if he knew a person named Steven Colbern, and he denied it.44 Although on other occasions Fortier has acknowledged that he discussed Colbern with McVeigh, Fortier's preliminary hearing testimony suggests that he did not know Colbern. Thus, any statement by Fortier to the contrary should have been provided to us pursuant to Brady. Moreover, when the FBI questioned the Fortiers about their belief as to others involved in the bombing, undoubtedly the Fortiers were questioned as to the basis of their belief. There should be some memo or report that provides the Fortiers' explanation as to why they believed Colbern, Kevin Nicholas, and Bob LNU from Arkansas were involved in the bombing. We have been provided some information regarding Michael Fortier's allegations about Terry Nichols' involvement in the bombing and some information about McVeigh's statements to Fortier about Colbern. Nonetheless, the defense has not been provided any information regarding the basis of the Fortiers' beliefs that others identified in this report were involved in the bombing.

Exhibit 37

Exhibit 37 consists of two pages that are part of an incomplete print out of a computer generated report. These two pages simply appear in the middle of the 1,354 pages of the Secret Service file with no explanation. They are obviously incomplete because of the handwritten notations describing separate lists as "set[s]" and then numbering them.

What is particularly interesting about these documents is the fact that among the list of seven names identified as "set # 5," is the name of Richard Lee Guthrie. Guthrie, of course, was one of the Midwest bank robbers. It is possible that these lists contain names of some sort of watch list generated by the Secret Service. This is so because Richard Lee Guthrie was being actively investigated by the Secret Service prior to the Oklahoma City bombing because of threats that he had made concerning former President Bush.45 It is a mystery why this document is included in 1B3484. There certainly is no explanation provided in 1B3484 or in any of the other materials provided to us by the State. Rather, the federal government appeared to go to considerable lengths to sanitize the materials provided to us to eliminate the possibility that the defense would connect the investigation of the Midwest bank robbers with the ongoing investigation in this case.

Exhibit 38

Exhibit 38 consists of pages 55 and 61 of the Secret Service time line.46 Page 61 contains the following entry for Sunday, April 23, 1995:

A barber has been located in Junction City, KS, and reports that he may have cut the hair of both subjects recently. That interview is still underway.

This reference is important because the existence of such a witness corroborates defense witnesses. Specifically, Kim Adams will testify that she saw Timothy McVeigh in the presence of another man - not Terry Nichols -- on the Friday before the bombing. Ms. Adams will testify that, when she observed Mr. McVeigh's picture in the paper following the arrest, she identified him except for the fact that when she had seen him his hair was longer. This means he had a haircut sometime between Friday, April 14 and Wednesday, April 19, the day of the bombing. Two other defense witnesses, Tonia Rumbaugh and Kathy Henderson, will testify that on the morning of April 18, 1995, McVeigh and another man (i.e., John Doe # 2) came into a hair salon in Junction City, Kansas seeking haircuts but were turned away because the salon was booked with appointments. Therefore, the existence of a witness who is a barber in Junction City who cut Mr. McVeigh's and his companion's hair would be critical in terms of impeaching the State's theory of events. A computer-aided search of all 302s provided to us by the State fails to locate any 302 involving a "barber" or "haircut" in relation to Junction City. Moreover, the defense does not have any report or documentation identifying who this person is. Thus, this is yet another example of a report that was not disclosed to the defense.

H. The FBI's Investigation of the Midwest Bank Robbers Calling Cards/Phone Records

Despite the FBI's efforts to sanitize the discovery provided to the defense to mask any involvement of the Midwest bank robbers with the April 19th bombing plot, it is indisputable that the FBI was actively looking into the activities of the Midwest bank robbers as early as a week after the Murrah Building bombing.47 Indeed, after John Solomon's revelations, Mr. Earnest reviewed some of Peter Langan's defense files at Mr. Cash's office and discovered that the Midwest bank robbers were using telephone calling cards much in the same way that Timothy McVeigh used the Daryl Bridges card. Based on this discovery, Mr. Earnest went back and reviewed some of the 1As and 1Bs that had been scanned into the defense computer system. As already indicated, however, the defense still has not scanned in all of the 1A and 1B files located in the District Attorney's file cabinets. Thus, Mr. Earnest had to physically search the District Attorney's filing cabinets. When Mr. Earnest searched those file cabinets, he discovered some telephone calling card records that matched some of the calling card numbers used by the Midwest bank robbers. Nevertheless, nothing in the 1A or 1B files identifies these telephone numbers as being connected to the Midwest bank robbers. Indeed, until receiving the information from Mr. Solomon and Mr. Cash, the defense would have had no way of connecting any of these phone records to the Midwest bank robbers or really appreciating their significance.

The results of Mr. Earnest's search of the materials and documents contained in the BOMBROB files in Mr. Cash's office together with his review of some of the 1A, 1B, and 1C files amassed by the FBI in the OKBOMB case clearly demonstrate that FBI agents from both the BOMBROB and OKBOMB Task Forces were actively pursuing an investigation into the connection between crimes committed by the Midwest bank robbers and the bombing of the Murrah Building. Of critical significance is the fact that the FBI actually obtained telephone records of the Midwest bank robbers months before the first of the bank robbers was arrested in January 1996. This fact strongly suggests that the FBI had an informant or access to other information that permitted the FBI to subpoena phone records of the Midwest bank robbers. Given the information discussed in the last section, it is highly likely that the ATF's ongoing investigation into the activities in Elohim City enabled the ATF and, in turn, the FBI to know what records to subpoena.

Moreover, it appears that the FBI, the federal government, and the State have withheld additional calling card records of the Midwest bank robbers that may well support the conclusion that these men aided Timothy McVeigh in his plot to bomb the Murrah Building. As Frederick Dexter has already testified at this trial, the FBI commonly subpoenas telephone records in an effort to develop leads and to check out particular suspects. That was done in both the OKBOMB and BOMBROB investigations. A comparison of some of the telephone records in the two cases reveals that the FBI was clearly investigating the possible involvement of the Midwest bank robbers in the Oklahoma City bombing. As the following columns graphically illustrate, calling card account numbers that are referenced in Peter Langan's BOMBROB file were also located in the OKBOMB file.

BOMBROB OKBOMB

1052239845 1052239845

1184277771

1247621602

1406554333

1409554333

1247621602

1649719062 1649719062

1674187942 1674187942

1742617125

1760920159 1760920159

2778248611 2778248611

3057231504

3259413782 3259413782

3954104162

5346061222

5532512530

5594696351

5595696351

6984838299 6984838299

7140638643

8611078005

9803283211

It was not until Mr. Earnest found the attached prepaid telephone calling card account records in Peter Langan's BOMBROB file in Mr. Cash's office that the defense had any idea that some of the numbers in the OKBOMB file were connected to the Midwest bank robbers. See attached Exhibits 40, 41, 42 from Langan's BOMBROB file and Exhibits 43, 44, 45, and 46 from the BOMBROB file. There is no question that these prepaid calling card account numbers belonged to members of the Midwest bank robbery group. Not only were these calling card numbers found in Langan's files, but a review of the numbers called supports that conclusion. For example, Exhibits 41 and 42 from the BOMBROB file and Exhibit 44 from the OKBOMB file show calls made to or from Michael Brescia's father's telephone number.48 Exhibits 41, 42, and 44 also show calls made either to or from Kevin McCarthy's grandmother's telephone number.49 Finally, Exhibits 42 and 44 shows three calls being made to convicted Midwest bank robbery co-conspirator Mark Thomas' telephone number.50

Remarkably, many of the records for these specific calling cards involve calls either going into or coming out of Elohim City -- (918) 427-7739. There are over forty such calls involving the Elohim City phone number. See Exhibit 43. Certainly, the State or the federal government would not suggest that these cards belonged to Timothy McVeigh -- even though they are found in the Oklahoma City bombing investigation file -- because that would suggest even more of a connection between McVeigh and Elohim City. It is obvious, therefore, that the Midwest bank robbers were regularly making calls to and from Elohim City.51

As Mr. Dexter indicated in his trial testimony, the FBI, when investigating the OKBOMB case, was subpoenaing the telephone records of people suspected of involvement in the Murrah Building bombing. In the OKBOMB files, Mr. Earnest found subpoenas from the federal grand jury from the Western District of Oklahoma seeking prepaid calling card account records for specific cards used by the Midwest bank robbers. These records were being sought at least as early as August 1995, and probably earlier, even though no bank robbery allegedly committed by the Midwest bank robbers ever took place in Oklahoma. Unquestionably then, the OKBOMB investigators were looking into the activities of the Midwest bank robbers to see if they were involved in the Murrah Building bombing.

A thorough review of all the Midwest bank robbery phone records reveals two other important points. First, in reviewing the Midwest bank robber telephone records found in Langan's BOMBROB files, Mr. Earnest found entries for six (6) different telephone calls for account number 6984838299. In the corresponding OKBOMB records in the District Attorney's Office, that particular account number is referred to only in 1A-1108. In 1A-1108, there are entries for only three (3) telephone calls made on that account number. Thus, the Midwest bank robber's telephone records contained in the Oklahoma City bombing file unquestionably are incomplete.

Furthermore, the last line of the paragraph of the federal grand jury subpoena found in 1A - 0617 in the District Attorney's files specifically lists six (6) ten-digit calling card accounts for which records were being sought. Yet, a comparison of those account numbers with the account records actually contained in the 1A file show an important inconsistency. The last account number listed in the subpoena is 1247621602. Although the printouts for the account numbers for the other five accounts listed in the subpoena are in file 1A-0617, there are no records regarding account number 1247621602.52 Instead, in the file is a printout of another account record for account number 1406554333. Those two numbers, 1247621602 and 1406554333, are nowhere close enough in similarity to suggest that the inclusion of one for the other is due to a simple clerical error. Rather, what this suggests is that - for whatever reason - the FBI is deliberately withholding the complete records for account number 1247621602 - which they unquestionably subpoenaed. Additionally, this shows that the FBI obtained separate account records -- in this case, at least for account number 1406554333 -- for which the defense can find no subpoena. This suggests that the FBI obtained even more Midwest bank robbery telephone records than those contained in the District Attorney's files.

After discovering the calling card records in Langan's files in Mr. Cash's office and finding the Midwest bank robbery calling card numbers in the OKBOMB files, Mr. Earnest attempted to track down the calling card company that had issued the calling cards. In view of the fact that a number of the subpoenas were directed to a company called Fone America, Inc., Mr. Earnest tried to find out precisely what records Fone America, Inc. had provided to the FBI during the course of the investigation of the Oklahoma City bombing. The 1A-0616 and 1A -0617 files contain fax cover sheets from Fone America, Inc., to Special Agent Elvis McBride of the FBI. Agent McBride was one of the agents responsible for subpoenaing and gathering the voluminous telephone records during the investigation of the bombing. On these fax cover sheets is the name of Joe G. Joseph / Vice-President - Operations, the person at Fone America, Inc. who sent the records to Agent McBride. As Mr. Joseph indicated in his attached affidavit, Exhibit 49, Fone America, Inc. no longer exists because it went bankrupt. Mr. Earnest then located and spoke with Mr. Michael Grassmueck, the bankruptcy trustee for Fone America, Inc., who has supplied an affidavit, attached as Exhibit 50. According to Mr. Grassmueck, all corporate records for Fone America, Inc. have been destroyed. Therefore, there is absolutely no way the defense can now independently verify exactly what Fone America, Inc. records were sent to the FBI/Western District of Oklahoma Grand Jury during the investigation of this case.

Before becoming aware that the records of the telephone calling cards used by the Midwest bank robbers even existed, the defense had absolutely no reason to search for them among the literally hundreds of thousands of records contained in the State's files. Moreover, the defense would not have found them by searching for records pertaining to the "Midwest bank robbers," "ARA," "BOMBROB" or the names of "Langan" and "Guthrie" or any of the other bank robbers to whom the calling cards belonged. That is so because of the vague description in the 1A, 1B and 1C indexes provided to the defense. Each index simply mentioned "Fone America, Inc." and in one instance referred to "call detail for account number" and then listed six separate 10 digit account numbers. Among the hundreds of thousands of telephone records gathered by the FBI in this case there is no reasonable way that anybody could have expected defense counsel to seek out, for example, 1A-0617 or 1A-0616 to find these records earlier. The importance of these records became apparent to Mr. Earnest only after he found the prepaid calling card records in Peter Langan's (BOMBROB) file in Mr. Cash's office.

Among the subpoenas that Mr. Earnest found when he began looking at telephone records was Federal Grand Jury Subpoena Number 0951610. See Exhibit 51; see also Exhibit 44 (1A-0617). This subpoena requests "call detail" for six (6) Fone America, Inc. account numbers. It remains a mystery to the defense how the FBI obtained the accounts numbers for the prepaid calling cards used by the Midwest bank robbers necessary to subpoena the records for those specific accounts. Certainly, no physical prepaid calling card (besides the Spotlight "Darryl Bridges" card) was listed as having been recovered as a result of the investigation of the Oklahoma City bombing. A computerized search of every one of the 302s provided to the defense in this case fails to find a single 302 which mentions these "Fone America, Inc., Driveline" prepaid calling cards, the account numbers, or their source in terms of the Oklahoma City investigation. Yet Federal Grand Jury Subpoena # 951610 was issued on August 16, 1995, five months before any of the Midwest bank robbers were arrested. It cannot be overemphasized that the FBI agents involved in the federal grand jury investigation of the Oklahoma City bombing must have known the actual telephone account numbers used by the Midwest bank robbers when they began subpoenaing records. The account numbers for prepaid calling cards are not recorded in toll records of specific outgoing and incoming calls made on a particular telephone. As such, the FBI must have had an alternative source for these account numbers.

Not only did the subpoena ask for the account records for these calling card numbers - numbers that indisputably belonged to the Midwest bank robbers - but the subpoena also demanded records pertaining to particular calls. The "call detail" requested information as to what calls were made from particular phones on specific dates to the "1-800" number for Fone America, Inc. That number 1-800-808-0805 is the entry number that somebody using a Fone America, Inc. DriveLine system prepaid calling card had to call to access the service. Calling that number would activate the same process as calling 1-800-793-3377 to access a Spotlight calling card.

We have no way of knowing how many people in the United States used Fone America calling cards in 1995. What is striking is the fact that in requesting information about the phone records of the Midwest bank robbers, the FBI was, in the same paragraph of the same subpoena, also checking to determine if a Fone America calling card was used on critical dates and at critical locations. A review of the records that were subpoenaed reveals that the investigators were looking at the following:

[1] (913) 762-0650 on 2/22/95 . . . to 800/808-0805

[2] (913) 762-9679 on 4/4/95 . . . . to 800/808-0805

[3] (913) 762-9647 on 4/4/95 . . . . to 800/808-0805

[4] (602) 757-9902 on 4/9/95 . . . . to 800/808-0805

[5] (913) 762-0101 on 4/13/95, 4/15/95 & 4/20/95 . . . . to 800/808-0805 [6] (405) 725-3461 on 4/19/95 . . . . to 800/808-0805

[7