UNITED STATES OF AMERICA,

Plaintiff,

v.                 UNDER SEAL

TERRY LYNN NICHOLS,

Defendant.

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MOTION OF TERRY LYNN NICHOLS FOR JUDGMENT OF ACQUITTAL PURSUANT TO FED. R. CRIM. P. 29, OR, IN THE ALTERNATIVE, TO STRIKE ALLEGATIONS AND EVIDENCE PERTAINING TO THE ALLEGED ROBBERY OF ROGER MOORE

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Defendant Terry Lynn Nichols, by counsel, respectfully moves for judgments of acquittal on all of the counts against him in the indictment. In the alternative, if this motion is denied, Mr.Nichols moves to strike all indictment allegations and evidence introduced at trial related to the alleged robbery of Roger Moore.

The ground for acquittal is the government’s failure to introduce evidence sufficient to prove that Mr. Nichols possessed the level of criminal intent required by each of the crimes charged in the indictment. The ground for the alternative relief is the government’s failure to introduce evidence that sufficiently connects the alleged Moore robbery to the alleged conspiratorial objective of detonating a truck bomb at the Murrah Building.

. NO RATIONAL JUROR COULD CONCLUDE THAT MR. NICHOLS HAD THE SPECIFIC INTENT TO KILL REQUIRED BY THE CHARGES

Mr. Nichols is charged in Count I of the indictment with a conspiracy to kill innocent persons and damage government property by using a weapon of mass destruction against persons and government property, with deaths resulting, pursuant to 18 U.S.C. §2332a. He is charged in Count II with the substantive offense of knowingly, intentionally, willfully and maliciously aiding and abetting the use a weapon of mass destruction against persons in the United States, with deaths resulting, under the same statute. Count III charges him with knowingly, intentionally, willfully and maliciously aiding and abetting the use of an explosive to damage property owned by the United States, with deaths resulting, pursuant to 18 U.S.C. §844(f). Finally, he is charged with eight counts of first degree murder of federal agents under 18 U.S.C. §1111(a).

Each of these counts requires the prosecution to prove a specific intent on the part of the defendant with respect to the harm caused by the crime. The first degree murder counts require that Mr. Nichols have premeditatedly and deliberately aided and abetted the killing of each of the eight murder victims. Counts 1-3 require other specific intents with respect to the use of an explosive weapon against the Murrah Building and the people in it. We move for acquittal because the government’s proof does not support a finding of any of these specific intents.

This failure of proof can be seen most clearly in the context of the more traditional murder charges, where the crucial distinction between first and second degree murder is well established. As the Tenth Circuit has repeatedly held, first degree murder, as opposed to second degree murder and lesser criminal homicides, is a specific intent crime. United States v. Joe, 8 F.3d 1488, 1500 (10^th Cir. 1993), cert. denied, 510 U.S. 1184 (1994) ("[P]roof of specific intent was required to convict the defendant of first degree murder but not second degree murder or voluntary manslaughter"); United States v. Soundingsides, 820 F.2d 1232, 1237 (10^th Cir. 1987) ("the charge of murder in the second degree did not require proof of a specific intent (wilful, deliberate, malicious and premeditated), but only a general intent to kill"). The reason for this is that while a deliberate and intentional killing is required for first degree murder, it is sufficient for lesser homicides that the defendant have acted recklessly or with criminal negligence with respect to human life. See e.g. United States v. Lesina, 833 F.2d 156, 158-9 (9^th Cir. 1987); United States v. Hernandez-Rodriguez, 975 F.2d 622, 627 (9^th Cir. 1992) (discussion of upward departure under Sentencing Guidelines for reckless life-threatening conduct). Second degree murder may be predicated on a recklessness that amounts to "malice" — a "callous and wanton disregard for human life," Joe, supra, at 1500 — while it is sufficient for involuntary manslaughter that the defendant was reckless with respect to human life even if that recklessness falls short of malice. United States v. Fleming, 739 F.2d 945, 948 (4^th Cir. 1984), cert. denied, 469 U.S. 1193 (1985) ("[t]he difference between malice, which will support conviction for murder, and gross negligence, which will permit of conviction only for manslaughter, is one of degree rather than kind").

Regardless of whether the government’s proof would support an inference of recklessness — which we do not concede — it is clear that no rational juror could conclude from the evidence presented that Mr. Nichols had the specific and deliberate intention to kill. Cf. Messer v. Roberts, 74 F.3d 1009, 1014 (10^th Cir. 1996) (overturning an aggravated kidnapping case on habeas corpus review for insufficient evidence of intent; "[m]erely finding that a taking occurred, however, is insufficient in itself to support a charge of kidnapping; rather, the taking must be done with the specific intent to accomplish one of the four types of objectives listed in the statute").

First, there is no evidence whatsoever that Mr. Nichols himself ever declared a desire to do violence against the government, the Murrah Building or the persons in it. As for Mr. McVeigh’s alleged statements to him about his alleged bombing plans, Mr. Fortier equivocated between suggesting that Mr. McVeigh intended to act alone (by using "he") or with (usually unspecified) others ("they"), see e.g. Tr. 8296-8. When Fortier did mention Mr. Nichols’ name, Mr. Nichols’ intentions were generally left vague (see e.g. Tr. 8263 (McVeigh and Mr. Nichols were going to take "positive offensive action")) or directly contradicted his supposed willing involvement in the plan (Tr. 8344). Even if Mr. Fortier is credited, none of these de facto hearsay statements is sufficient to establish a specific intention to kill. Most important, Mr. McVeigh’s statements of his own plans to bomb the Murrah Building are not a legitimate basis for ascribing intentions to Mr. Nichols even when he mentions Mr. Nichols in connection with them. While a person’s statement of intent is admissible to prove that his own conduct conformed to his intention, Mutual Life Insurance v. Hillmon, 145 U.S. 285 (1892), that rule does not extend to using a declarant’s stated intentions to prove the conduct of another. See 1974 Enactment Notes to FRE 803(3). Even FRE 801(d)(2)(E) cannot be stretched to justify a sufficiency finding in a capital murder case based on a coconspirator’s similar declarations of intent. This is in contrast to most first degree murder cases upheld on sufficiency grounds, in which is there is usually some direct evidence of intention, either verbal or circumstantial. See e.g. Wingfield v. Massie, 122 F.3d 1329, 1333 (10^th Cir. 1997) (reversing district court’s grant of habeas corpus on issue of intention in part because of evidence that defendant had suggested her brother kill the victim); see also id. at 1333 (agreeing with district court that the evidence of intention was equivocal in this case). Indeed, evidence of a defendant’s declarations of intent is often critical in upholding convictions for second degree murder, in which specific intent is not a required element, see e.g. United States v. Lofton, 776 F.2d 918, 919 (10^th Cir. 1985) (defendant "told two different people that she might kill her husband"). Even evidence of declared intent is not always sufficient to sustain these convictions where other circumstantial evidence of malice is lacking. See e.g. DeMarrias v. United States, 453 F.2d 211, 213-4 (8^th Cir. 1972) (evidence of three pre- and post-killing statements by defendant insufficient to sustain malice element of second degree murder conviction).

It is true, as the government states, that subjective intent can be inferred from a defendant’s objective actions. Gov’t Opp. 14 (quoting Winfield, supra). In the classic case, intent is inferred from the fact that one may be presumed to intend the natural and probable consequences of one’s actions, and proof of the ultimate act — putting a gun to the victim’s head, driving the truck bomb to the site of the explosion, etc. — is sufficient to prove the defendant’s intent. No such inference is permissible here, however, since the natural and probable consequences of Mr. Nichols’ alleged acts — up to and including the alleged burglary and robbery — do not include the explosion of a truck bomb. Short of such direct proof, cases upholding inferences of intent from objective acts have had far stronger supporting evidence than has been presented here. In Wingfield, for example, which the government relies on, in addition to her other acts there was evidence that the defendant had explicitly urged her brother to kill the victim. Id., at 1333. Sufficiency cases in which such explicit declarations of intent are lacking have involved even stronger circumstantial evidence. See e.g. Reed v. United States, 377 F.2d 891, 892-3 (10^th Cir. 1967) (evidence sufficient; defendant seen with bloody knife running from scene of crime). In Soundingsides, supra, a case described by the Tenth Circuit as being a "weak one of circumstantial evidence" for second degree murder, 820 F.2d at 1243, the defendant’s malice was demonstrated by evidence of his beating of the victim on several occasions, including the day of the murder. Id. at 1243 n.5.

The circumstantial evidence presented by the government here does not approach the evidence of an intention to kill found sufficient in these cases, even for the cases of second degree murder. The government’s evidence of each of the alleged acts allegedly perpetrated by Mr. Nichols in furtherance of the conspiracy is either facially innocuous (use of the Daryl Bridges card), extremely weak (the alleged Moore robbery, allegedly building the bomb on April 18, the alleged quarry robbery) or both (alleged involvement in the ammonium nitrate and nitromethane purchases, the April 16 trip to Oklahoma City). The "go for it" letter, which the government also highlights (Gov’t Opp. 7-8), does not mention or encourage killing anyone. Even taken together and viewed in the light most favorable to the government, and regardless of whether it would support an inference of some general criminal intent, this evidence does not permit a finding beyond a reasonable doubt of a specific intent to kill.

The government’s attempt to defend the murder charges in its Opposition makes two mistakes. The first is assuming what it purports to demonstrate. The government claims that "[t]he jury rationally could find that anyone who bought 4000 pounds of ammonium nitrate and stole other explosives to bomb a federal building would know that ‘deaths are practically certain to follow from this conduct’" (Gov’t Opp. 15), but this begs the question whether the government’s evidence is sufficient to demonstrate the specific intention "to bomb a federal building" in the first place. The tenuousness of its evidence at every crucial turn would simply not permit a rational juror to reach this conclusion beyond a reasonable doubt.

The government compounds this bootstrapping error by erasing the distinction between the specific intent to kill required for premeditated and deliberate first degree murder and the implied malice — "callous and wanton disregard for human life" — threshold for second degree murder. Gov’t Opp. 16. There is a significant step down in both culpability and proof between a specific intent to kill and a wanton and callous indifference to human life, a difference that since the 1794 Bradford reforms in Pennsylvania that introduced the distinction between first degree and second degree murders has distinguished capital from noncapital murder. See Keedy, "History of the Pennsylvania Statute Creating Degrees of Murder," 97 U.Pa.L.Rev. 759 (1949). Whether or not the proof introduced by the government would support a mens rea finding for a lesser homicide, it is not sufficient to permit a finding of the specific intention to kill required by the first degree murder counts leveled against Mr. Nichols.

Finally, for similar reasons the evidence does not make out the specific intents required by Counts 1-3, either. The Court has held that Counts 1 and 2 require proof of an intent to use a weapon of mass destruction against the Murrah Building and/or the persons in it, and that Count 3 requires the intentional and malicious use of an explosive against the building. McVeigh, 940 F.Supp. at 1582. Again, the proof of such specific intents to use weapons and explosives against buildings and persons (as opposed to a general criminal intent or wrongful state of mind) is completely lacking. Accordingly, a judgment of acquittal should be entered on all counts.

II. IN THE ALTERNATIVE, THE ALLEGATIONS AND EVIDENCE RELATING TO THE ALLEGED ROBBERY OF ROGER MOORE SHOULD BE STRICKEN

We previously moved to strike the Roger Moore allegations under FRE 403 and 401 on the grounds that the alleged episode involving Moore and his guns have no relation to the objective of the conspiracy charged in the indictment. DE 4813. We renew that motion, which is now ripe for decision.

The sole evidence connecting the alleged Moore robbery to the alleged bombing conspiracy came during Mr. Fortier’s testimony. The sum total of this testimony was as follows:

7 Q. What did Mr. McVeigh say about why he and Mr. Nichols

8 wanted to commit a robbery?

9 A. Mr. McVeigh told me that Mr. Nichols was getting all pissed

10 off at him because, in Mr. Nichols' opinion, Tim was

11 freeloading off him. They were using all of Mr. Nichols' money

12 and Tim wasn't supplying any. So this was Tim's way -- this is

13 what Tim told me. It was his way of contributing to their

14 upkeep. Tr. 8315.

Nothing in this answer suggests that "Mr. Nichols’ money" was going to any illegal ends, much less the bombing plot charged in the indictment. In fact, as we argued previously, all the evidence and inferences point the other way — if there were such a conspiracy, according to the government’s theory and proof all of the ingredients for the bomb were already purchased by the time of the alleged robbery.

The government’s chief response in oral argument on the previous motion was that Lori Fortier would testify that the robbery served as a "fund-raiser" for the bomb plot. 8/28/97 Tr. 65. Lori Fortier has not testified, however, and Michael Fortier did not characterize the robbery in those terms. Instead, Lana Padilla testified that Mr. Nichols left $20,000 in cash and a significant amount more in precious metals and coins in Las Vegas when he left the country for the Philippines shortly after the alleged robbery — too short a time to have cashed in on the allegedly stolen guns, and over twice as much cash as Roger Moore claims was stolen along with the guns. Trial Tr. 9586, 9592 (Lana Padilla testimony). Given this evidence, there is no legitimate inference that robbery proceeds were needed by the alleged coconspirators to continue their alleged conspiratorial activities.

The government also suggested that the robbery proceeds could be used to defray "post-robbery expenses" and expenses incurred prior to the robbery. 8/28/97 Tr. 66. There is no proof that that is what Mr. Fortier meant by their "upkeep," however, or that what they were spending Mr. Nichols’ money on was the bomb plot. It would be pure speculation to connect Mr. Fortier’s statements about the robbery to the bomb plot, because there is a much better supported inference that Mr. Nichols’ alleged complaint about Mr. McVeigh’s "freeloading" and the need for "upkeep" had to do with a legitimate relationship between the two — their gun show partnership. It is undisputed that Mr. Nichols and Mr. McVeigh were both selling items at gun shows, together and apart. See e.g. Tr. 7149 (Tim Donahue testimony about Mr. Nichols’ plans to go into guns shows with a friend); Tr. 9492 (stipulation that Mr. McVeigh attended gun show in Ohio); Tr. 9557 (Lana Padilla testimony that Mr. Nichols informed her that he would be doing gun shows with Mr. McVeigh to make more money).

There is thus no rational basis for concluding beyond a reasonable doubt that Mr. Fortier’s explanation of the alleged robbery was referring to an illegal conspiracy — particularly one that all the evidence strongly shows was (1) fully paid for by the time of the robbery and (2) easily capable of continuing "upkeep" through the conspiracy period on the basis of the coconspirators’ then-existing assets — rather than an ongoing business venture, the existence of which is not in dispute.

Mr. Fortier’s facially innocent (and at worst entirely ambiguous) testimony is far too slender a reed to support an inference beyond a reasonable doubt that the alleged Moore robbery constitutes an overt act in furtherance of the conspiracy. Even assuming that the mere possibility of such a connection is sufficient to pass the FRE 401 relevance test, however, the certainty of unfair prejudice stemming from the robbery evidence plainly far outweighs its marginal probative value to proof of the conspiracy. The evidence should therefore be stricken under FRE 403 and 404(b) and the jury should be instructed to disregard it.

For the foregoing reasons, Mr. Nichols respectfully requests that a judgement of acquittal be entered on all counts. In the alternative, Mr. Nichols requests that the allegations and evidence pertaining to the alleged Roger Moore robbery be stricken and the jury instructed to disregard it.

Respectfully submitted,
__________________________
Michael E. Tigar
150 East Tenth
Denver, CO 80203

Ronald G. Woods
5300 Memorial, Suite 1000
Houston, TX 77007

Adam Thurschwell
N. Reid Neureiter
Jane B. Tigar
1120 Lincoln, Suite 1308
Denver, CO 80203

(303) 831-4059
Fax (303) 831-6232

Counsel for Terry Lynn Nichols
(Appointed by the Court)