U.S. v. Nichols, 98-1231

• Decision Date: 26 February 1999
• Docket Number: No. 98-1231,98-1231
• Citation: 169 F.3d 1255,1999 WL 107021
• Parties: 51 Fed. R. Evid. Serv. 336, 1999 CJ C.A.R. 1407 UNITED STATES of America, Plaintiff-Appellee, v. Terry Lynn NICHOLS, Defendant-Appellant, Marsha Kight; Martin Cash; National Organization for Victim Assistance, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1255

169 F.3d 1255

51 Fed. R. Evid. Serv. 336, 1999 CJ C.A.R. 1407

UNITED STATES of America, Plaintiff-Appellee, v.Terry Lynn NICHOLS, Defendant-AppellantMarsha Kight; Martin Cash; National Organization for Victim Assistance, Amici Curiae.

No. 98-1231.

United States Court of Appeals Tenth Circuit.

Feb. 26, 1999.

Michael E. Tigar, (Susan L. Foreman, Adam Thurschwell, and Jane B. Tigar, with him on the briefs), Boulder, Colorado, for Defendant-Appellant.

Sean Connelly, Special Attorney to the U.S. Attorney General(Patrick M. Ryan, United States Attorney, Oklahoma City, Oklahoma, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

Paul G. Cassell, University of Utah College of Law, Salt Lake City, Utah; Robert F. Hoyt, Karan Bhatia, Reginald J. Brown, and Jennifer Grishkin, Willmer, Cutler & Pickering, Washington, D.C., on the brief for Amici Curiae.

Before PORFILIO, BALDOCK, and BRORBY, Circuit Judges.

PORFILIO, Circuit Judge.

Terry Lynn Nichols appeals his conviction and sentence after having been found guilty of conspiring to use a weapon of mass destruction, 18 U.S.C. § 2332a, and eight counts of involuntary manslaughter, §§ 1114,1112.The jury acquitted him on counts of using a weapon of mass destruction, § 2332a, destruction by explosives, § 844(f), and eight counts each of first and second-degree murder, §§ 1114,1111.The trial court sentenced Mr. Nichols to life imprisonment on the conspiracy count and six years on each of the manslaughter counts, all terms to run concurrently.The court also ordered Mr. Nichols to pay $14.5 million in restitution.After consideration of the issues, we see no error in the actions of the district court and affirm its judgment.

Mr. Nichols was the co-conspirator of Timothy James McVeigh in the planning and subsequent bombing of the Alfred P. Murrah Federal Building in Oklahoma City.The pertinent details of the crime are fully set forth in our decision of Mr. McVeigh's appeal, seeUnited States v. McVeigh, 153 F.3d 1166, 1176-79(10th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 1148143 L.Ed.2d 215(1999), and will not be repeated here.To the extent evidence from Mr. Nichols' trial is essential to the disposition of the issues he presents to us, we shall delineate it.

Mr. Nichols submits eleven grounds for reversal.He argues the district court erred before and during trial when it: (1) held intent to kill is not a required element of 18 U.S.C. § 2332a;(2) chose not to instruct the jury on lesser-included offenses of section 2332a;(3) admitted the expert testimony of Linda Jones; (4) excluded the expert testimony of Frederic Whitehurst for discovery violations; and (5) admitted the testimony of a co-conspirator who testified in exchange for promises of leniency.He further contends (6) the accumulation of all the errors adversely affected his right to a fair trial.Mr. Nichols also claims the district court erred during sentencing when it: (7) sentenced him based on the guideline for first-degree murder; (8) failed to explain why it chose not to depart downward; (9) failed to consider his personal characteristics; and (10) ordered $14.5 million in restitution.Lastly, Mr. Nichols contends (11) the judgment entered is in error.We consider these issues in order.

I.Is Intent to Kill a Required Element of 18 U.S.C. § 2332a?

Mr. Nichols argues the district court erred when it failed to instruct the jury that 18 U.S.C. § 2332a incorporates a specific intent to kill as an element of the offense.The argument relies on the statute's distinction between actions that result in death and those that do not.The penalty provision of the statute provides that whoever violates section 2332a"shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life."18 U.S.C. § 2332a(a)(1994)(emphasis added).Mr. Nichols claims the phrase "if death results" is an actus reus element of the offense thus necessitating a specific intent to kill.

We rejected this argument in McVeigh.There we held:

The fact that the statute authorizes the death penalty "if death results" from the use of the weapon of mass destruction does not persuade us that the statute incorporates "intent to kill" as an element.Looking at the plain language and structure of the statute, we conclude that the phrase "if death results" is a sentencing factor rather than an element of the offense....[p] Further, even if the phrase ... were to be construed as an element of the offense rather than a sentencing enhancement, it would not be an intent element but only an element of factual consequences.Nothing in § 2332a(a) links the "if death results" language of the statute to any scienter whatsoever.

McVeigh, 153 F.3d at 1194-95.

Mr. Nichols acknowledges the McVeigh decision but argues at great length the case is wrongly decided on this point.His thesis, however, ignores the rule of stare decisis."We cannot overrule the judgment of another panel of this court.We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court."In re Smith, 10 F.3d 723, 724(10th Cir.1993);see alsoHurd v. Pittsburg State Univ., 109 F.3d 1540, 1542(10th Cir.1997).Mr. Nichols attempts to avoid this rule by arguing Mr. McVeigh has petitioned for en banc review.Were this a sufficient ground for departure from precedent, and it is not, the argument has been mooted by the denial of rehearing en banc.SeeUnited States v. McVeigh, No. 97-1287(10th Cir.Oct. 6, 1998)(unpublished order).

Mr. Nichols also argues McVeigh runs counter to the Supreme Court's recent decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350(1998).This attempt to circumvent our precedent also fails.Almendarez-Torres was available to and expressly considered by the McVeigh panel.SeeMcVeigh, 153 F.3d at 1194-95.To consider the effect of Almendarez-Torres now would be to revisit ground already covered.This we may not do.

II.Should the District Court Have Instructed the Jury on Lesser-Included Offenses of 18 U.S.C. § 2332a?

Mr. Nichols urges the district court erred when it failed to instruct the jury on lesser-included offenses of 18 U.S.C. § 2332a.He grounds this argument upon a theory that section 2332a incorporates multiple offenses graduated by levels of intent, comparable to first and second-degree murder.

Once again, the identical argument was soundly rejected in McVeigh : "[T]he Supreme Court made it clear that the Constitution does not require a court to instruct the jury on lesser-included offenses that do not exist under the law....We reject [Mr. McVeigh's] argument, and therefore, we find that the district court properly denied the requests for lesser-included offense instructions [on the section 2332a count]."McVeigh, 153 F.3d at 1197(citingHopkins v. Reeves, 524 U.S. 88, ----, 118 S.Ct. 1895, 1901, 141 L.Ed.2d 76(1998)).We adhere to our earlier decision.

III.Did the District Court Err by Allowing Linda Jones to Give Expert Opinions About the Type and Size of the Bomb?

Mr. Nichols next contends the district court erred when it permitted Linda Jones, a forensic explosives expert from the Ministry of Defense in England, to give opinions about the type and size of the bomb that destroyed the Murrah building.Ms. Jones reviewed photographs, videotapes, charts, plans, and physical evidence recovered from the Oklahoma City crime scene.Key to her testimony was a purported piece of a Ryder truck's wooden cargo bay, labeled as Q507 and eventually admitted into evidence.¹The piece of the cargo bay was impregnated with ammonium nitrate.At trial, Ms. Jones explained, based on damage to the Murrah building and nearby vehicles, that the bomb was a "high-performance explosive of midrange velocity and performance."She also opined the damage was caused by a large 3000-6000 pound bomb in the cargo compartment of a Ryder truck.Although Ms. Jones could not identify the exact explosive device, she testified the damage was "consistent with a bomb containing or including an ammonium-nitrate-based explosive" and that it could have been detonated with Primadet blasting caps.

Mr. Nichols claims the district court should have, at the very least, held an evidentiary hearing to determine the reliability of portions of scientific information relied upon by Ms. Jones.He also believes the court should have excluded the testimony because Ms. Jones' "opinions exceeded her expertise and the probative value of her testimony was substantially outweighed by its unfair prejudice."

A.Should the District Court Have Held an Evidentiary Hearing to Determine the Reliability of the Scientific Testimony?

Mr. Nichols first argues the district court should have held a preliminary hearing to determine whether the scientific foundation for portions of Ms. Jones' expert testimony met the threshold standard of reliability set forth in Fed.R.Evid. 702andDaubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993).The district court explained Mr. Nichols' position:

The principal dispute centers on ... analytical testing of Q507, an object taken from the site of the explosion and tested at the FBI lab and at another location.Defense counsel contend that information made known to them through discovery suggests the possibility of contamination of the items tested and the testing equipment; that the FBI laboratory lacked proper protocols and prescribed procedures; that the testing methodologies used were inappropriate and that unqualified persons participated in performing the tests.In sum, the defense argues that the government must prove to the court, outside the presence of the jury, that appropriate scientific methods were properly applied before the test results and conclusions drawn from them can...