US v. Nichols, M-95-105-H.

• Decision Date: 06 June 1995
• Docket Number: No. M-95-105-H.,M-95-105-H.
• Citation: 897 F. Supp. 542
• Parties: UNITED STATES of America, Plaintiff, v. Terry Lynn NICHOLS, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

897 F. Supp. 542

UNITED STATES of America, Plaintiff, v. Terry Lynn NICHOLS, Defendant.

No. M-95-105-H.

United States District Court, W.D. Oklahoma.

June 6, 1995.

Patrick M. Ryan, U.S. Attorney's Office, Oklahoma City, OK, for U.S.

Ronald G. Woods, Houston, TX, Michael E. Tigar, Austin, TX, for defendant.

ORDER

DAVID L. RUSSELL, Chief Judge.

Before the Court is the motion of Defendant Terry Lynn Nichols for an order releasing him upon a number of specified conditions pursuant to the Bail Reform Act, 18 U.S.C. § 3142 et seq. and the Fifth and Eighth Amendments to the United States Constitution. The motion was filed following Defendant's request, at his preliminary hearing on May 18, 1995, for an opportunity to brief the detention issue. Pursuant to agreement of the parties and consent of the Defendant, Defendant was given seven (7) days in which to file his brief and the Government was given seven (7) days in which to respond. The Government's response brief was filed on June 1, 1995. Defendant consented to his detention and to postponement of the detention hearing until such time as the briefing was completed.

The Court has reviewed Defendant's motion, memorandum in support of the motion, the declaration of Michael E. Tigar, Defendant's counsel, in support of the motion, the Government's response brief, Defendant's reply memorandum and, as the Court previously advised the parties, the Court has read the transcript of the proceedings had on May 18, 1995 (the Preliminary Hearing) and the exhibits admitted into evidence at the Preliminary Hearing. The Court conducted a detention hearing¹ on June 2, 1995, pursuant to 18 U.S.C. § 3142(f). Both the United States and the Defendant presented evidence² and made oral argument at the detention hearing. The Court now enters its findings of fact and conclusions of law.

1. Defendant Terry Lynn Nichols is charged by Criminal Complaint with the offense of maliciously damaging and destroying by means of fire and an explosive a building, vehicle, and other personal and real property in whole or in part owned, possessed and used by the United States and departments and agencies thereof in violation of Title 18, United States Code, Sections 844(f) and 2.

2. The Government has not filed a statutory notice of its intent to seek the death penalty. However, the Court takes judicial notice of the fact that the destruction of the Alfred P. Murrah Federal Building resulted in the deaths of 168 people. Thus, the offense with which Defendant is charged is an "offense for which the maximum sentence is life imprisonment or death." 18 U.S.C. § 3142(f)(1)(B). See 18 U.S.C. § 844(f).

3. Defendant is charged with committing or aiding or abetting the commission of a crime of violence. See 18 U.S.C. § 3156(a)(4). Although this matter is before the Court on Defendant's motion for release rather than on the Government's motion, the parties agree and the Court concludes that the Government has the burden of proving by clear and convincing evidence that "no condition or combination of conditions will reasonably assure the safety of any other person and the community," 18 U.S.C. § 3142(f), see United States v. Salerno, 481 U.S. 739, 742, 752, 107 S.Ct. 2095, 2098, 2104, 95 L.Ed.2d 697 (1987), or of proving by a preponderance of the evidence that the Defendant poses a risk of flight. See United States v. Gebro, 948 F.2d 1118, 1121-1122 (9th Cir.1991); United States v. Carlos, 777 F.Supp. 858, 860 (D.Kan.1991). Accord Order and Judgment, United States v. Reyes-Rodriguez, Case No. 93-2241 (10th Cir. Oct. 7, 1993) (unpublished but noted at 7 F.3d 1046) (1993 Westlaw 394870).

4. In determining whether there are conditions of release that will reasonably assure the appearance of Defendant as required and the safety of any other person and the community, the Court is required to and does take into account available information concerning the factors set out in 18 U.S.C. § 3142(g)(1) through (4) which are incorporated herein by reference.

5. With respect to the first factor in Section 3142(g), the nature and circumstances of the offense charged are the malicious damaging and destruction by means of fire and an explosive device of a federal building which resulted in the deaths of 168 people, and extensive property damage, or aiding or abetting others in the commission of such offense. The offense charged is a crime of violence.

6. The evidence that Defendant Terry Lynn Nichols at least aided and abetted others in the commission of the offense charge is entirely circumstantial in nature but there is extensive circumstantial evidence that Defendant at least aided or abetted others in the commission of the offense. The weight of such circumstantial evidence against the Defendant is heavy. That circumstantial evidence includes the following:

a. Defendant has known Timothy McVeigh since 1988 and since then Defendant and McVeigh have occasionally lived together and operated a business together selling army surplus items and firearms at gun shows around the country. A United States Magistrate has found that there is probable cause to believe that on April 19, 1995, in Oklahoma City, Oklahoma, Timothy McVeigh committed the offense of maliciously damaging or destroying a building, the Alfred P. Murrah Federal Building which is in whole or in part owned, possessed and used by the United States and departments and agencies thereof.

b. On September 30, 1994, forty fifty-pound bags of ammonium nitrate were purchased from the Mid-Kansas Cooperative Association in McPherson, Kansas, by a "Mike Havens." A receipt for that purchase was found during a search of Defendant's residence on April 22, 1995. That receipt bears the fingerprint of Timothy McVeigh.

c. On September 22, 1994, not quite a week before the purchase of ammonium nitrate described in subparagraph b, a storage unit was rented at Herington, Kansas, where Defendant resides, in the name of Shawn Rivers. On Tuesday, April 18, 1995, McVeigh told the Defendant that if McVeigh did not pick up items he had in that storage unit Defendant should do it for him. On April 20, 1995, the day after the bombing, Defendant removed items, including a rifle, from the storage unit.

d. On October 18, 1994, forty additional fifty-pound bags of ammonium nitrate fertilizer were purchased from Mid-Kansas Cooperative Association in McPherson, Kansas, by a "Mike Havens," who was driving a dark-colored pickup with a light-colored camper shell. On October 17, 1994, one day prior to that purchase, a storage unit identified as unit no. 40, was rented at Council Grove, Kansas, in the name Joe Kyle. A document found during the search of Defendant's home refers to the location of this storage unit and the name Joe Kyle.

e. On November 7, 1994, another storage unit, identified as unit no. 37, was rented in Council Grove, Kansas, in the name of Ted Parker. A document found at Defendant's home bears the location of this storage unit and the name Ted Parker.

f. In a letter dated on or about November 22, 1994, the day Defendant left the United States for a visit to the Philippines, Defendant wrote McVeigh that he would be getting the letter only in the event of Defendant's death and that McVeigh should clear everything out of "CG 37" and "liquidate 40" and advises that McVeigh is on his own and to "Go for it!!" There is information that "CG 37" refers to storage unit no. 37 in Council Grove and that "liquidate 40" refers to storage unit no. 40 in Council Grove.

g. On April 15, 1995, Defendant purchased diesel fuel from a Conoco service station in Manhattan, Kansas. On April 16, 1995, Defendant purchased an additional 21.59 gallons of diesel fuel from a Conoco station in Junction City, Kansas.

h. On April 16, 1995, Defendant drove to downtown Oklahoma City to pick up Timothy McVeigh and was in the vicinity of the Murrah Building at that time.

i. A Ryder truck, identified as the kind of vehicle containing the explosive that damaged the Alfred P. Murrah Building, was observed parked behind Defendant's home in Herington, Kansas, during the evening of April 17, 1995.

j. Defendant owns a dark blue 1984 GMC half-ton diesel pickup with a white topper or camper shell. On Tuesday, April 18, 1995, Defendant met McVeigh in Junction City, Kansas, where Defendant said he loaned that pickup truck to McVeigh for approximately 5 hours while Defendant attended an auction.

k. On April 17 or 18, 1995, an older model pickup with a camper shell was seen backed up to the storage unit no. 2 in Herington, Kansas. During the week of April 17, 1995, a Ryder truck was also seen backed up to the east end of the storage shed in Herington, Kansas, near unit no. 2.

l. On the morning of April 18, 1995, a witness observed a yellow Ryder truck and a dark blue or brown Chevrolet or GMC pickup truck, with something white, possibly a camper shell, on the back of the pickup, parked next to each other in an unpaved area at the Geary State Fishing Lake, approximately six miles south of Junction City, Kansas. The vehicles were parked there for several hours, according to the witness. On April 28, 1995, the witness took an FBI agent to the area where the witness had observed the two vehicles parked. There the FBI agent observed a circular area of brown vegetation surrounded by green vegetation and detected an oily substance and the odor of diesel fuel while inspecting the area of brown vegetation.

m. Ammonium nitrate, ground ammonium nitrate, fuel oil and primadet core can be used in the manufacture of a bomb. Defendant knows how to make a bomb by mixing ammonium nitrate with diesel fuel which could be detonated with the blasting caps.

n. Defendant told FBI agents that he had rented storage facilities in Kansas and Nevada and that he hoped that if agents searched his home they would not mistake household items for bomb-producing materials. Defendant told agents that he had had ammonium nitrate stored at his residence until

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