Material Witness Warrant Nichols, In re, 95-3130
| Decision Date | 28 February 1996 |
| Docket Number | No. 95-3130,95-3130 |
| Citation | 77 F.3d 1277 |
| Parties | In re MATERIAL WITNESS WARRANT Terry Lynn NICHOLS. UNITED STATES of America, Plaintiff-Appellee, v. Terry Lynn NICHOLS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court for the District of Kansas; Monti L. Belot, District Judge.
Michael Tigar, Austin, Texas, appearing for appellant.
David J. Phillips, Federal Public Defender for the District of Kansas, Kansas City, Kansas, and Steven K. Gradert, Assistant Federal Public Defender for the District of Kansas, Wichita, Kansas, on the brief, for appellant.
Sean Connelly, Special Assistant United States Attorney, Office of the United States Attorney, Oklahoma City, Oklahoma (Patrick M. Ryan, United States Attorney, and Joseph H. Hartzler, Special Assistant United States Attorney, Office of the United States Attorney, Oklahoma City, Oklahoma, with him on the brief), for appellee.
Before TACHA, COFFIN, * and LUCERO.
On April 21, 1995, the U.S. District Court for the Western District of Oklahoma issued a Warrant for Arrest of Witness, pursuant to 18 U.S.C. § 3144, naming Terry Lynn Nichols and requiring him to appear before a federal grand jury in Oklahoma City. After turning himself in to the Herrington, Kansas, police department, Nichols appeared before the U.S. District Court for the District of Kansas and moved to quash the arrest warrant. On April 26, 1995, the court denied his motion. Nichols was subsequently detained under a different warrant, one based upon a criminal complaint. Nichols now appeals the order of the district court denying his motion to quash the first warrant, arguing that (1) the issue is not moot, (2) the district court's denial is an appealable order, and (3) the factual allegations supporting the warrant were insufficient to show probable cause that Nichols's presence could not be secured later by subpoena. We conclude that the issue is now moot. Consequently, we do not reach the appealability of the order or the merits of Nichols's claim.
On April 19, 1995, at approximately 9:00 A.M., a bomb destroyed the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, killing 169 people, injuring many others, and causing extensive property damage to other buildings in the vicinity. About 80 minutes later, Oklahoma authorities arrested Timothy James McVeigh on traffic and weapons charges. Soon thereafter, federal authorities arrested McVeigh in connection with the bombing. On April 21, 1995, the U.S. District Court for the Western District of Oklahoma issued a Warrant for Arrest of Witness, in accordance with 18 U.S.C. § 3144, directing that Terry Lynn Nichols be brought before a Federal Grand Jury at Oklahoma City to testify as a material witness regarding United States v. McVeigh, Case No. M-95-97-H. The warrant stated on its face that "the Witness's testimony is material in a criminal proceeding, and he has attempted to leave the jurisdiction of the United States, and it may become impracticable to secure his presence by subpoena."
The court issued the warrant upon the affidavit of FBI special agent Henry C. Gibbons. However, Gibbons's affidavit did not establish that Nichols had ever attempted to escape the jurisdiction of the United States. It merely asserted the following with respect to the probability of Nichols's flight: "Terry Nichols [sic] renunciation of his U.S. citizenship and his association with Tim McVeigh, a person involved in such a heinous crime, indicates that his testimony cannot be secured through the issuance of a subpoena."
In fact, Nichols had voluntarily appeared at the police department in Herrington, Kansas, the town wherein he resided, on April 21, 1995, after hearing in news broadcasts that he was being sought for questioning. On April 22, after being interviewed by federal agents, Nichols appeared before the U.S. District Court for the District of Kansas and was served with the material witness arrest warrant issued by the U.S. District Court for the Western District of Oklahoma. On April 26, still in Kansas, Nichols entered a motion to quash the arrest warrant with the U.S. District Court for the District of Kansas. Later the same day, the court denied Nichols's motion. On May 3, Nichols filed a notice of appeal of the district court's order denying his motion to quash the warrant.
On May 9, the United States filed a complaint in the U.S. District Court for the Western...
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