U.S. v. McVeigh

• Decision Date: 12 October 2000
• Docket Number: No. 00-M494.,No. 96-CR-68-M.,00-M494.,96-CR-68-M.
• Citation: 118 F.Supp.2d 1137
• Parties: UNITED STATES of America, Plaintiff-Respondent, v. Timothy James MCVEIGH, Defendant-Movant.
• Court: U.S. District Court — District of Colorado

118 F.Supp.2d 1137

UNITED STATES of America, Plaintiff-Respondent, v. Timothy James MCVEIGH, Defendant-Movant.

No. 00-M494.

No. 96-CR-68-M.

United States District Court, D. Colorado.

October 12, 2000.

COPYRIGHT MATERIAL OMITTED

Dennis W. Hartley, Dennis W. Hartley, P.C., Colorado Springs, CO, for Timothy McVeigh.

Sean Connelly, United States Attorney's Office, Criminal Division, Denver, CO, for U.S.

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

Timothy McVeigh filed a Motion to Vacate Conviction and Sentence and for New Trial on March 6, 2000. The motion to vacate conviction and sentence is under 28 U.S.C. § 2255 and the motion for new trial is under Rule 33 of the Federal Rules of Criminal Procedure. The claims under § 2255 are (1) that Mr. McVeigh's lead trial counsel, Stephen Jones, had conflicts of interest preventing him from providing effective assistance of counsel in violation of the Sixth Amendment; (2) that defendant's counsel did not provide effective representation as required by the Sixth Amendment; (3) that the defendant was denied a fair and impartial jury because the jurors gave dishonest answers during voir dire questioning and (4) that the defendant was denied due process because the government withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The motion for new trial for newly discovered evidence is based upon the material which the defendant says the government improperly withheld.

The government's answer and brief, filed March 31, 2000, challenges the sufficiency of the motions and urges the court to deny them without an evidentiary hearing. The defendant's reply argues that his allegations are sufficient to warrant an evidentiary hearing.

A motion for post conviction relief under § 2255 is a form of habeas corpus requiring a review of the files and records in the case. The statute provides that unless the motion and the files and records of the case conclusively show that the prisoner is not entitled to relief, the court must grant a prompt hearing and determine the issues by findings of fact and conclusions of law. At the oral argument on August 17, 2000, defendant's counsel argued that the § 2255 motion can be dismissed without an evidentiary hearing only under the standard for dismissal of a complaint for failure to state a claim upon which relief can be granted assuming all of the well pleaded facts to be true as provided by Fed. R.Civ.P. 12(b)(6).

The Rules of Civil Procedure are not directly applicable to these proceedings. The Supreme Court promulgated special rules for § 2255 motions. Rule 2(b) of those rules differs from the notice pleading permitted by Fed.R.Civ.P. 8 in that the motion must "set forth in summary form the facts supporting each of the grounds" relied upon for relief and special Rule 8(a) provides that "[I]f it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates." Rules Governing Section 2255 Proceedings, Rules 2 and 8.

Guided by the papers filed and the arguments of counsel, the court has reviewed the pertinent parts of the files and records of the criminal case and concludes an evidentiary hearing is not required because none of the grounds relied upon is sufficient to support an order vacating the conviction and sentence. That conclusion results from the following findings and conclusions based upon the existing record. Some of the relevant record is contained in transcripts of non-public proceedings which the court ordered kept under seal. Because this is an adjudicative ruling, the quotations from sealed transcripts in this Memorandum Opinion and Order are now made public.

The trial record of this case and the evidence supporting the jury's verdicts as to guilt and sentence have been succinctly summarized by the Tenth Circuit Court of Appeals in its opinion affirming the conviction and sentence found at United States v. McVeigh, 153 F.3d 1166, 1176-1179 (10th Cir.1998), cert. denied, 526 U.S. 1007, 119 S.Ct. 1148, 143 L.Ed.2d 215 (1999).

Chief Judge David Russell in the Western District of Oklahoma appointed Stephen D. Jones as counsel to represent Timothy McVeigh. Shortly thereafter, Chief Judge Russell appointed Richard Burr and Robert Nigh, Jr., as additional counsel. As the case progressed, additional counsel, to the total of 17, were appointed because of the unusual burdens attendant upon investigation, trial preparation and presentation of the defense at the trial. Robert Wyatt, Mr. Jones' law partner, was one of those appointed. The only lawyer now charged with having conflicts of interest is Mr. Jones.

The principal guidance for determining whether a conflict of interest results in a violation of the Sixth Amendment rights of an accused has been provided by the Supreme Court in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), and Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Holloway held a conviction constitutionally invalid because the trial court rejected a pretrial motion for the appointment of separate counsel for three co-defendants when the lawyer representing all three of them advised the court that one or more of the defendants wished to testify. The attorney-client privilege would prevent counsel from cross examining the testifying defendant on behalf of co-defendants. Additionally, a confession from one of the defendants was to be offered in evidence. During the trial, counsel advised the court that all three defendants wanted to testify. The court again refused separate appointments. The Supreme Court concluded that the failure of the trial judge either to appoint separate counsel or to take adequate steps to determine that the risk of conflict was too remote to warrant separate counsel resulted in a violation of the Sixth Amendment. The Court expressly said that prejudice was presumed and need not be proved under these circumstances.

Mr. McVeigh contends that this court committed the same reversible error by failing to make an inquiry into possible conflicts between Mr. Jones' personal interests and Mr. Jones' duty to zealously represent Mr. McVeigh at trial. On March 12, 1997, Mr. McVeigh placed a telephone call to the court clerk's office inquiring whether the court agreed to meet with him. Mr. McVeigh's new counsel contend that the court was obligated to grant the defendant's request or at least appoint independent counsel to consult with Mr. McVeigh. That claim is rejected because in the full context of the circumstances known to the court, the request did not constitute an objection based upon a conflict of interest and, therefore, does not come within the ruling in Holloway. Moreover, Mr. McVeigh had other opportunities to object to Mr. Jones' representation before the trial began.

The pervasive publicity about the events giving rise to this prosecution and these criminal proceedings has been previously summarized in the opinion supporting an order for change of venue. United States v. McVeigh, 918 F.Supp. 1467 (W.D.Okla. 1996). The court granted a severance of trials of the two defendants because of differences in the evidence. United States v. McVeigh, 169 F.R.D. 362 (D.Colo.1996). The publicity, the complexity of the trial and the government's pursuit of the death penalty required the court to take unusual steps for jury selection. One thousand summons for jury service were issued with a brief questionnaire to be answered by each person summoned for jury service in Mr. McVeigh's trial. The court held closed conferences with counsel for the parties to draft a lengthy questionnaire to be submitted to the summoned jurors at a building away from the courthouse on March 19, 1997.

On February 28, 1997, before final determination of the questions to be on the questionnaire, Mr. Jones and Richard Burr submitted papers seeking a court order to restrain the Dallas Morning News from publication of a story that it had put on the Internet on February 27. Mr. Jones and Mr. Burr appeared in chambers with United States Attorney Patrick Ryan and Special Attorney to the U.S. Attorney General Larry A. Mackey and Mr. Neureiter, one of the attorneys representing the co-defendant Terry Nichols. Mr. Jones reported a telephone call from a reporter for that newspaper saying that he had received "confidential defense documents from a defense staff member" regarding statements reportedly made by Mr. McVeigh to his lawyers. After the court cautioned that an effort to restrain publication by a newspaper might have adverse effects on the trial proceedings, Mr. McVeigh's attorneys decided not to seek such a restraining order.

On March 4, 1997, at the request of defense counsel, the court convened a hearing in chambers, attended by government attorneys Patrick Ryan, Sean Connelly, Larry Mackey, Beth Wilkinson, Scott Mendeloff, Jamie Ornstein and Aitan Goelman, and by Stephen Jones, Robert Nigh, Richard Burr, Amber McLaughlin, Jeralyn Merritt, Mandy Welch, Cheryl Ramsey and Christopher Tritico, trial attorneys for Mr. McVeigh. Mr. Jones advised government counsel and the court that the defense team of lawyers was considering filing a motion for continuance of the trial because of the pretrial publicity and had talked to Mr. McVeigh about it. After the court said that the jury selection process would be the best way to determine whether a continuance was necessary, Mr. Jones made the following statements:

MR. JONES: Well, in the spirit — in the same spirit of candor that the Court has addressed the issue, let me tell you that it was our considered opinion yesterday afternoon that we should ask for a continuance; and I hope I'm not going to say anything here that anybody would constitute as a waiver; but we went out to Mr. McVeigh and talked to him about it, and he said almost word for word what you said. That was almost exactly his analysis.

So we talked...