US v. McVeigh

• Decision Date: 07 August 1995
• Docket Number: Misc. No. 39. No. M-95-98-H.
• Parties: UNITED STATES of America, Plaintiff, v. Timothy J. McVEIGH, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

896 F. Supp. 1549

UNITED STATES of America, Plaintiff, v. Timothy J. McVEIGH, Defendant.

Misc. No. 39. No. M-95-98-H.

United States District Court, W.D. Oklahoma.

August 7, 1995.

COPYRIGHT MATERIAL OMITTED

Stephen Jones, Enid, OK, Richard H. Burr, III, Houston, TX, Robert Nigh, Tulsa, OK, Michael D. Roberts, Robert L. Wyatt, IV and James L. Hankins, Jones, Wyatt & Roberts, Enid, OK, for defendant.

Patrick Ryan, U.S. Atty., Joseph Hartzler and Sean Connelly, Special Asst. U.S. Attys., Arlene J. Joplin, Asst. U.S. Atty., and Merrick Garland, Deputy Associate Atty. Gen., Oklahoma City, OK, for U.S.

ORDER

DAVID L. RUSSELL, Chief Judge.

On July 18, 1995, the United States filed a "Petition for Court Order Directing Witness to Furnish Exemplars of Handwriting to the Grand Jury" as required by a grand jury subpoena directed to Timothy James McVeigh and a directive of the Grand Jury of the United States District Court for the Western District of Oklahoma. The motion to compel was filed after Mr. McVeigh appeared before the grand jury on July 18, 1995 and, upon advice of counsel, refused to comply with the subpoena and grand jury directive. Also on July 18, 1995, Defendant Timothy James McVeigh filed his "Objection to Motion to Compel Compliance With Grand Jury Subpoena". Defendant cited three grounds for objection therein: 1) Handwriting exemplars are unnecessary to determine whether there is probable cause to indict McVeigh and are really being sought as evidence for trial, in an abuse of the grand jury process; 2) The motion to compel should be denied as an equitable remedy for alleged violations of grand jury secrecy which have assertedly occurred; and 3) Provision of handwriting exemplars in these circumstances, because it would reveal Mr. McVeigh's thought processes, would violate Mr. McVeigh's Fifth Amendment privilege.

On July 18, 1995, the Court conducted a hearing, open to the public, in which the Court heard oral argument of both parties on the issues presented by the Government's Petition and Defendant's Objection, received evidence and reviewed copies of the grand jury subpoena and directive and the exemplars which the Defendant had been asked to provide. In oral argument, Defendant asserted and argued and the Government responded to nine grounds for refusing to comply with the subpoena by providing the requested handwriting exemplars: 1) the subpoena and directive are a product of illegal electronic surveillance; 2) breaches of grand jury secrecy have occurred which excuse compliance with the subpoena or which should be remedied by denial of the motion to compel; 3) the exemplars are being sought for a pending grand jury matter in another district; 4) the subpoena or the requested production of handwriting exemplars constitutes an unreasonable search and seizure violative of the Fourth Amendment to the United States Constitution; 5) the subpoena is overly broad; 6) the subpoena and directive were improperly issued; 7) the subpoena and directive were issued for the improper purpose of obtaining evidence to be used in a criminal case; 8) the subpoena was issued for the improper purpose of obtaining evidence for trial here and in Michigan; and 9) the subpoena, as drawn, seeks to compel defendant to be a witness against himself, in violation of the witness'/Defendant's Fifth Amendment rights.

The Court, after reviewing the parties' briefs, hearing oral argument on these objections and considering the exhibits, Defendant's affidavit and the offers of proof made by Defendant, denied Defendant's objections and concluded as follows:

I am satisfied that there is a presumption of regularity of a grand jury subpoena. There have been several suggestions of irregularities on behalf of the government by the defendant. I just don't find any of those bearing relationship to whether or not the subpoenaed information should be ordered or not. I just don't find any correlation between leaks and this application.

I'm satisfied from all the cases that there is no Fifth or Sixth Amendment violation in the Court or grand jury ordering a handwriting exemplar. I am, therefore, going to order that the defendant comply with the subpoena of the grand jury.

I don't see any reason to wait on this. I don't think it would be necessary or helpful to my decision. I think the law is clear that the defendant is obligated to comply with that subpoena, and so that is going to be my order.

I believe the government has prepared an order, which I will sign. I'm not in any way denigrating the suggestions of wrongdoing that the defense has raised or putting my blessings on them either way, it's just I don't think they relate to this issue, and I'll address those issues in the motion which is pending by the defendant otherwise. But that will be my order at this time. Transcript of Proceedings on July 18, 1995 ("Tr.") at pp. 38-39.¹

Prior to recessing Court, the Court specifically advised the Defendant that:

The prospect is raised that failure to comply with this Court's order ... could be used against you in a later proceeding. I think you need to be aware of that. Not just in a contempt proceeding, but perhaps as evidence at trial. I assume that your counsel has discussed this with you, but I think you should be aware of that. Tr. at p. 42.

In addition to signing a written order directing the witness/Defendant to comply with the grand jury subpoena by providing the requested exemplars, the Court also orally advised the witness/Defendant of its Order that, consistent with the grand jury's directive, Mr. McVeigh produce handwriting exemplars as directed by FBI Agents William Teater and Peter Linder, and that that would be done outside the presence of the grand jury. See Tr. at p. 43.

Following recess to allow compliance with the Court's Order, court was again convened. The Government requested that the Court make a finding that the witness, Timothy McVeigh, refused to comply with the Court's Order and the grand jury's directive to provide handwriting exemplars to the grand jury for its use. Tr. at p. 43. Ultimately, the witness/Defendant, through counsel, stipulated to the fact that the witness, Defendant Timothy James McVeigh, failed to comply with the Court's Order directing him to comply with the grand jury subpoena and directive by providing the requested handwriting exemplars. See Tr. at pp. 49 and 55. The witness/Defendant further stipulated, through his counsel, that he in fact understood the Order of the Court ordering him to comply with the subpoena and that that order included that he write Government's Exhibits 1, 2 and 3 in cursive handwriting. See Tr. at pp. 54-55. The Court did not make a finding of contempt, but indicated that it saw no reason why it should not proceed to that stage, having found that a direct order of the Court had been violated. Tr. at p. 55. At the request of the witness/Defendant, the Court held in abeyance any hearing on contempt to allow the witness/Defendant a reasonable time to prepare, and until such time as he had submitted a brief and proffer or affidavit as to why he should not be held in contempt and the Government responded thereto. See Tr. at pp. 55-56. The Court directed that both parties address the propriety of contempt in these circumstances, given that the witness/Defendant is being detained on a criminal complaint, and whether a hearing is necessary. See Tr. at pp. 55-56. The Court advised the parties that its request for further briefing and argument should be treated as an order to show cause pursuant to Rule 42, Fed.R.Crim.P., as to why Defendant should not be held in contempt. Tr. at p. 57.

Defendant responded to the Court's briefing order by filing on July 25, 1995 "Defendant McVeigh's Memorandum of Law Objecting to Entry of Order Memorializing Refusal to Provide Handwriting Exemplars in the Absence of a Due Process Hearing; Alternative Memorandum Why Contempt is not Applicable." The "Brief of the United States Regarding McVeigh's Refusal to Provide Handwriting Exemplars" was filed on August 1, 1995.

I. Contempt

It has been conclusively established that the witness, Defendant Timothy James McVeigh, refused to comply with the Order of this Court entered July 18, 1995 directing Timothy James McVeigh to comply with the grand jury subpoena and directive by providing the requested handwriting exemplars. This refusal took place out of the presence of the Court.

On July 18, 1995, the Court orally in open court in the presence of the Defendant gave notice of the essential facts — witness McVeigh's refusal to comply with the direct Order of the Court on July 18, 1995 to comply with the grand jury subpoena and directive by providing the requested handwriting exemplars, including Government's Exhibits 1, 2 and 3, in cursive handwriting, and that this refusal took place outside of the Court's presence — allegedly constituting the criminal contempt charged by an order to show cause, see Tr. at 57, and stated that a hearing on contempt would be held in abeyance to allow the witness/Defendant a reasonable time for the preparation of his defense and until after the directed briefing. At least arguably this notice was sufficient to initiate criminal contempt proceedings under Fed.R.Crim.P. 42(b) or civil contempt proceedings. See United States v. United Mine Workers, 330 U.S. 258, 296-300, 67 S.Ct. 677, 697-700, 91 L.Ed. 884, 914-16 (1947); In re Dinnan, 625 F.2d 1146 (5th Cir.1980). See also Defendant McVeigh's Memorandum of Law at pp. 8-11. In any event, any deficiencies in the notice could be readily cured at this time. The Court therefore now considers whether it should proceed with contempt proceedings, civil or criminal,² notwithstanding the fact that the Government has never specifically requested that the witness be cited or prosecuted for contempt. To determine whether the Court should proceed with civil or criminal contempt proceedings and what procedures must be followed, it...