U.S. v. McVeigh

• Decision Date: 08 September 1998
• Docket Number: No. 97-1287,97-1287
• Citation: 153 F.3d 1166
• Parties: 98 CJ C.A.R. 4652 UNITED STATES of America, Plaintiff-Appellee, v. Timothy James McVEIGH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1166

153 F.3d 1166

98 CJ C.A.R. 4652

UNITED STATES of America, Plaintiff-Appellee, v. Timothy James McVEIGH, Defendant-Appellant.

No. 97-1287.

United States Court of Appeals Tenth Circuit.

Sept. 8, 1998.

Page 1176

Sean Connelly, Special Attorney to the United States Attorney General, Denver, Colorado (Patrick M. Ryan. United States Attorney, Oklahoma City, Oklahoma, Joseph H. Hartzler, Larry A. Mackey, Aitan Goelman, James Orenstein and Beth A. Wilkinson, Special Attorneys to the United States Attorney General, Denver, Colorado, with him on the briefs), for Plaintiff-Appellee.

Robert Nigh, Jr., Tulsa, Oklahoma, and Richard Burr, Houston, Texas, for Defendant-Appellant.

Before EBEL, KELLY, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

Defendant-appellant Timothy J. McVeigh ("McVeigh") was tried, convicted, and sentenced to death on eleven counts stemming from the bombing of the Alfred P. Murrah Federal Building ("Murrah Building") in Oklahoma City, Oklahoma, that resulted in the deaths of 168 people. McVeigh appeals his conviction and sentence on the grounds that (A) pre-trial publicity unfairly prejudiced him, (B) juror misconduct precluded his right to a fair trial, (C) the district court erred by excluding evidence that someone else may have been guilty, (D) the district court improperly instructed the jury on the charged offenses, (E) the district court erred by admitting victim impact testimony during the guilt phase of trial, (F) the district court did not allow him to conduct adequate voir dire to discover juror bias as to sentencing, (G) the district court erred by excluding mitigating evidence during the penalty phase that someone else may have been involved in the bombing, (H) the district court erred by excluding mitigating evidence during the penalty phase showing the reasonableness of McVeigh's beliefs with regard to events at the Branch Davidian compound in Waco, Texas, and (I) the victim impact testimony admitted during the penalty phase produced a sentence based on emotion rather than reason. We affirm.

BACKGROUND

At 9:02 in the morning of April 19, 1995, a massive explosion tore apart the Murrah Building in Oklahoma City, Oklahoma, killing a total of 168 people and injuring hundreds more. On August 10, 1995, a federal grand jury returned an eleven-count indictment against McVeigh and Terry Lynn Nichols ("Nichols") charging: one count of conspiracy to use a weapon of mass destruction in violation of 18 U.S.C. § 2332a and 18 U.S.C. § 2(a) & (b); one count of use of a weapon of mass destruction in violation of 18 U.S.C. § 2332a and 18 U.S.C. § 2(a) & (b); one count of destruction by explosives in violation of 18 U.S.C. § 844(f) and 18 U.S.C. § 2(a) & (b); and eight counts of first-degree murder in violation of 18 U.S.C. §§ 1111 & 1114 and 18 U.S.C. § 2(a) & (b). On October 20, 1995,

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the government filed a Notice of Intent to Seek the Death Penalty. On December 1, 1995, this court granted a Petition for Writ of Mandamus by Nichols to recuse Judge Wayne Alley of the Western District of Oklahoma. In a December 4, 1995, Order, the Chief Judge of this court designated Chief Judge Richard P. Matsch of the District of Colorado to preside over future proceedings.

On February 19, 1996, the district court granted McVeigh's and Nichols' Motion for Change of Venue and transferred the case to Denver, Colorado. On October 25, 1996, the district court granted a Motion for Severance by McVeigh and Nichols and ordered that McVeigh's trial would proceed first. McVeigh's trial began with voir dire of prospective jurors on March 31, 1997. A jury of twelve with six alternates was sworn in by the district court on April 24, 1997, and opening statements commenced that same day. The government began presenting evidence the following day.

At the guilt phase of trial, which encompassed twenty-three days of testimony, the government proved the following set of facts. ¹ The destruction of the Murrah Building killed 163 people in the building and five people outside. Fifteen children in the Murrah Building day care center, visible from the front of the building, and four children visiting the building were included among the victims. Eight federal law enforcement officials also lost their lives. The explosion, felt and heard six miles away, tore a gaping hole into the front of the Murrah Building and covered the streets with glass, debris, rocks, and chunks of concrete. Emergency workers who reported to the scene made heroic efforts to rescue people still trapped in the building.

The Murrah Building was destroyed by a 3,000-6,000 pound bomb comprised of an ammonium nitrate-based explosive carried inside a rented Ryder truck. In the fall of 1994, McVeigh and Nichols sought, bought, and stole all the materials needed to construct the bomb. First, on September 30, 1994, and October 18, 1994, McVeigh purchased a total of 4,000 pounds of ammonium nitrate from the McPherson branch of the Mid-Kansas Cooperative using the alias "Mike Havens." Second, in October of 1994, McVeigh and Nichols stole seven cases of Tovex explosives and a box of Primadet nonelectric blasting caps from the Martin Marietta rock quarry near Marion, Kansas. Third, on October 21, 1994, McVeigh purchased three drums of nitromethane at a race track outside of Dallas, Texas. Prior to the nitromethane purchase, McVeigh had sought bomb ingredients, including nitromethane, both in person and through the use of a prepaid telephone calling card under the name "Daryl Bridges." Using various aliases, McVeigh and Nichols rented a number of storage lockers in Kansas where they stored the bomb components. In order to fund their conspiracy, McVeigh and Nichols robbed a gun dealer in Arkansas in November of 1994.

In a letter to Michael and Lori Fortier written around September of 1994, McVeigh disclosed that he and Terry Nichols had decided to take some type of positive offensive action against the federal government in response to the government's siege of the Branch Davidians in Waco, Texas in 1993. On a subsequent visit to their home, McVeigh told the Fortiers that he planned to blow up a federal building. McVeigh later informed the Fortiers that he wanted to cause a general uprising in America and that the bombing would occur on the anniversary of the end of the Waco siege. McVeigh rationalized the inevitable loss of life by concluding that anyone who worked in the federal building was guilty by association with those responsible for Waco.

McVeigh stated that he had figured out how to make a truck into a bomb using fifty-five-gallon drums filled with ammonium nitrate combined with explosives stolen from the quarry. McVeigh demonstrated the shaped charge be intended to use for the bomb by arranging soup cans on the floor in the same triangle shape in which he was going to place fifty-five-gallon barrels filled with ammonium nitrate combined with nitromethane

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in the truck. McVeigh also diagramed the truck, barrels, and fusing system on a piece of paper, and stated that he intended to use a Ryder truck. McVeigh told the Fortiers that he chose the Murrah Building as the target because he believed that (1) the orders for the attack at Waco emanated from the building, (2) the building housed people involved in the Waco raid, and (3) the building's U-shape and glass front made it an easy target. On a later trip through Oklahoma City, McVeigh showed Michael Fortier the Murrah Building, asking Fortier whether he thought a twenty-foot rental truck would fit in front of the building.

Also, towards the end of 1994, McVeigh typed a number of letters discussing the justified use of violence against federal agents as retaliation for the events in Waco. McVeigh told his sister and one of his friends that he had moved from the propaganda stage to the action stage in his dispute with the federal government. McVeigh then warned his sister that "something big" was going to happen in April, and asked her to extend her April 1995 Florida vacation. He also instructed her not to write to him any more lest she incriminate herself. The manner in which the bombing was carried out closely tracked several books bought by McVeigh, which he often encouraged his friends to read, describing how to make a powerful bomb mixing ammonium nitrate with nitromethane and romanticizing self-declared patriots who blow up federal buildings. McVeigh was familiar with explosives and had detonated a pipe bomb prior to the attack on the Murrah Building.

From April 14 to 18, 1995, McVeigh stayed at the Dreamland Motel located in Junction City, Kansas. On April 14, 1995, McVeigh purchased a 1977 yellow Mercury Marquis from Junction City Firestone in Junction City, Kansas. While waiting to take possession of the car from the dealer, McVeigh made a phone call using the Bridges calling card to Elliott's Body Shop ("Elliott's") in Junction City, Kansas, seeking a twenty-foot Ryder truck for a one-way rental to Omaha. McVeigh also called Nichols.

During the search of the blast site, the FBI located the rear axle of the Ryder truck used to carry the bomb. The vehicle identification number from the axle matched that of the Ryder truck rented to McVeigh by Elliott's on April 15, 1995, and picked up by McVeigh two days prior to the blast. McVeigh rented the truck under the name "Robert King" using a phony South Dakota drivers license that Lori Fortier had helped McVeigh create.

McVeigh drove to Oklahoma City in the rented Ryder truck, which he had made into a bomb, parking the vehicle in front of the Murrah Building and running to the yellow Mercury that he and Nichols had stashed as a getaway car in a nearby alley a couple of days before the bombing. A Ford key fitting the Ryder truck was found in an alley near where McVeigh had told Michael Fortier that the getaway car would be parked. McVeigh hand-printed a sign inside the yellow Mercury, "Not Abandoned; Please do not tow;...