Preliminary Hearing in the Case of Timothy McVeigh and Terry Nichols

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, 

Plaintiff,

vs.

Case No. M-95-98-H

TIMOTHY JAMES McVEIGH, 

Defendant.

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REPORTER'S TRANSCRIPT OF PROCEEDINGS HAD ON APRIL 27, 1995

PRELIMINARY HEARING

MAGISTRATE RONALD HOWLAND, PRESIDING

APPEARANCES

Merrick Garland, Arlene Joplin, United States Attorneys Office, 210 West Park Avenue, Oklahoma City, OK 73102

COUNSEL FOR THE PLAINTIFF

JOHN COYLE, SUSAN OTTO, KEVIN McNALLY, Federal Public Defender, Old Post Office Building, Oklahoma City, OK 73102

COUNSEL FOR THE DEFENDANT

(THE PRELIMINARY HEARING WAS CONCLUDED AND THE COURT WAS IN RECESS.)

THE COURT: The Court would like to advise you that there is a little bird family that is in this area. We have had the best minds in the institution to check it out, but they are chirping. And they have advised us to leave them alone, and that's what we are going to do. You will hear a little noise so don't worry about it.

I would like to introduce you to my staff that is here:My clerk is Bill French seated to my left; law clerks Dale Kelly and Lynn Burch seated to my right.

Also present to my left over there behind that bench is pre-trial services officer Marcy Gray. Court reporters Lynn Hilton and Charyse Crawford are to my right.

I would like Counsel who are present to introduce themselves, beginning with the Counsel for the United States.

MR. GARLAND: Your Honor, my name is Merrick Garland. I am an Associate Deputy Attorney General.

MS. JOPLIN: Arlene Joplin, Western District of Oklahoma, AUSA.

THE COURT: And Counsel for the defendant?

MR. COYLE: Judge, I am John W. Coyle, and I represent the accused, and I would ask the Court if the handcuffs could be removed during this hearing.

THE COURT: I am sorry?

MR. COYLE: If his handcuffs could be removed during the hearing.

THE COURT: I have told the marshal's office that is a matter within their discretion at this time.

MR. COYLE: Would the Court inquire of the marshals if they could remove them? There are about forty guards, seems like, in the room, if we could have them removed for the hearing.

THE COURT: If the marshals indicated that he should be cuffed, he should stay cuffed. That will be it.

Anything else?

MS. OTTO: Susan Otto, Federal Public Defender. I am also here to represent Mr. McVeigh. Also with me at counsel table, Mr. Kevin McNally. Mr. McNally is here in his capacity as attorney for the Death Penalty Resource Counsel Center which is under the auspices of the United States Courts.

THE COURT: Anyone else? I believe also present, entering an appearance early this morning, Paul Looney and J. Brent Liedtke from Houston, possibly privately-retained counsel for the Defendant.

appreciate very much the arrangements that have been made for this room to serve as a courtroom. The Court has found that under circumstances, unusual circumstances, that existed in the federal courtroom in downtown Oklahoma City, the federal courthouse, the reconstruction and other clean-up operations that are going on there, as well as the security and safety of all persons concerned, that we should conduct this hearing in this room.

In that regard I wanted to especially thank Warden R. G. Thompson and his staff, as well as United States Marshal Pat Wilkerson.

At this time I am going to ask that counsel confer after the Court makes a statement and a record regarding what has transpired basically since he initially appeared last Friday, and especially with regard to defense counsel.

As the defendant knows, at the time of the initial appearance last Friday at Tinker Air Force Base, that Mr. Coyle and Ms. Otto were appointed as counsel to represent the Defendant, both highly qualified and skilled attorneys.

I was not aware that there was any problem in connection with their representation until Monday, when motions were filed indicating that counsel desired to withdraw.

After carefully considering those motions, the Court entered an order which temporarily, at least, overruled those motions counsel then would -- Ms. Otto and Mr. Coyle would continue to represent the Defendant, and they are serving in that capacity here today.

They are very fine professional lawyers and I perceive no problem with their representation of the Defendant in connection with these proceedings, although they -- one or more of them may be granted permission to withdraw.

The Court's appointment of counsel is made under statutory provisions that provides that two counsel, two attorneys, shall be appointed for any person that may be charged with a death penalty offense, and those attorneys are required to have certain skills and certain experience. And I wanted the record to show that since that hearing, and since I learned that a motion had been filed by the initial attorneys the Court had appointed, that the Federal Public Defender's Office, under the statute, has been conducting a nationwide search, in effect, to determine what counsel might be available to replace Mr. Coyle and Ms. Otto, if that is actually necessary.

Circumstances may have changed and this situation is developing as we continue the hearing today. So we had that survey conducted and we had some recommendations of very fine attorneys that might replace those initial attorneys if that is necessary.

And I am telling, making this statement because it's necessary for the Court to exercise oversight in connection with the Counsel who represent a person who is indigent.

The Court understands the Defendant is indigent. I made that initial appointment on that basis, and in contrast to that, privately-retained Counsel may appear, assuming that either the Defendant, or if the Defendant is indigent, friends or relatives of the Defendant, may be able to employ counsel, and that situation has occurred just in the last, really in the last few hours.

I wasn't aware until yesterday afternoon sometime that Mr. Looney or Mr. Liedtke might be interested in entering an appearance and represent the Defendant in this case. And all this other has been going on at the same time.

We have been doing a survey to determine what substitute Counsel might be appointed by the Court, and later then learned that Mr. Looney and Mr. Liedtke might represent the Defendant also.

I think the attorneys have conferred some about this. I would like, if it's necessary, to have a further conference before we proceed with this hearing, between the attorneys, both privately-retained counsel and court-appointed counsel, to determine who should appropriately represent the Defendant in connection with this proceeding.

Obviously, this requires some conferencing with the Defendant and answering of any of his questions that he might have. I wanted the record to show what has happened since the Counsel was appointed because I didn't have much opportunity to explain that on Friday evening when we had the hearing at Tinker. Does anyone want to address that issue at this time?

MR. LOONEY: Yes.

THE COURT: Yes, sir, Mr. Looney.

MR. LOONEY: Your Honor, if I may be heard on that issue. I believe it's in the best interest of the Defendant to go forward with the team at the table.

THE COURT: All right, sir.

MR. LOONEY: At this time. The conferences have been had and that is the desire of the Defendant, and in my opinion in the best interest of the Defendant.

THE COURT: Anyone else want to speak to that issue? If not, then we will not take the recess and we will proceed with the hearing.

Is there any statements that need to be made before we proceed with the evidence in this case?

MR. GARLAND: Your Honor, if the Defendant could state on the record that he is satisfied with going forward with Counsel for this hearing.

THE COURT: I will ask if the defendant has any questions about the matters of the counsel, any additional questions that need to be asked, and certainly I will try to ask those.

MR. COYLE: He will stand moot, Judge.

THE COURT: If there are no further questions, I will proceed on preliminary hearing and combined detention hearing in case No. CR-95-98, United States of America versus Timothy James McVeigh.

MS. OTTO: Your Honor, if I may?

THE COURT: Yes, Ms. Otto.

MS. OTTO: I received the Court's order denying our request for transfer of this case yesterday.

THE COURT: I am sorry, the what?

MS. OTTO: I am sorry. Perhaps if I can step to the center it would be easier and I could get over the bird noise.

THE COURT: The birds are chirping away.

MS. OTTO: I might have to chirp a little more loudly than they do.

Your Honor, I received a copy of the Court's order yesterday denying our request for appointment of substitute counsel, and in the same order our motion to transfer this case was denied, and based on --

THE COURT: Would you hand me the Court's order?

MS. OTTO: Based on the Court's order and findings the Court made at that time.

THE COURT: Do you have a copy of it?

MR. COYLE: I have got it.

MS. OTTO: There we go, thank you.

THE COURT: I believe that is it.

MS. OTTO: I believe that it is appropriate as a preliminary matter to reurge our motion to transfer at this time. The substance of our motion to transfer went hand and glove with our request to have alternate counsel appointed to represent Mr. McVeigh. And our conflicts that arise, Mr. Coyle's and mine, in this case are inextricably involved with our motion to transfer.

This is a very unusual case and the government has relied essentially in its response on the Harrelson and Shagra cases which, of course, arose out of the assassination of Judge Woods down in Texas. And that is a primary authority on which the government relies in support of its argument that transfer is not warranted at this time.

The government's response, and I believe also the Court's order, does not address certain aspects of our motion, and that's why I wanted to touch on this point again at this time.

Your Honor, the essence of our motion to transfer, the essence of our motions to have alternate counsel appointed, is simply that this case has been so extraordinary, and has such extreme magnitude that it impossible for any of us who were in downtown Oklahoma City on the morning of April 19th to proceed in this case.

Judge Woods, for example, was shot at his home while he was on his way to work. There have been other attacks, the World Trade Center bombing, for example, and certain other events that occurred that certainly are equally traumatic events.

But I have found no case in the history of this country that is of such magnitude as the one we are involved in right now.

And certainly as lawyers one of the things Mr. Coyle and I have considered during our representation of Mr. McVeigh is not the actual provision of counsel in an appropriate and effective and zealous manner that is required by the Constitution, required by the cases effectuating the Constitution, but also the appearance of impropriety that might arise.

It is really that appearance of impropriety that prompted us to file our request for appointment of the substitute counsel and our request to transfer at this juncture.

Now, certainly the judge who presided in Judge Woods' case, the case involving the assassination of Judge Woods was an honorary Pall bearer and was a jurist who was well acquainted with Judge Woods. The Fifth Circuit found no flaw in that, but that is a far cry from a judge who is acquainted with a victim to a judge who actually witnessed the events as they occurred.

This record may be reviewed at some later time by people far removed from the events, both physically and temporally, and I think it is absolutely essential for the effective representation of Mr. McVeigh to have a clear record of exactly what it is we are talking about.

Now, the events of April 19th were obviously cataclysmic beyond definition. The A.P. Murrah Building, which is located directly across from the federal courthouse in Oklahoma City, was virtually destroyed, demolished, right on the spot, by a very powerful explosion.

The results of that explosion caused windows, doors, and other items within the federal courthouse building to be blown to pieces.

The judges' chambers on the north side of the federal courthouse building were shattered where the windows blew in, doors blew in, and people in the building were injured during that explosion.

On the first floor, jurors who were deliberating were physically injured. And one of the judges, the judge who was presiding over that trial, was out on the street assisting her jurors into ambulances.

Judge Argo, who is on the first floor at the northeast corner of the federal courthouse, was probably spared from certain death by the fact his windows on the ground floor are bulletproof glass. They appear to be sand-blasted.

In my building, my office windows on the north floor were completely destroyed. Fortunately, I wasn't sitting at my desk at the time. Fortunately for all of my staff, none of us were injured.

We evacuated the building as everyone else did. One of my lawyers was missing. She was in court. And I spent probably five to ten minutes running up and down the street in front of the federal courthouse trying to find my lawyer who was lost. Once I located her, one of my other lawyers informed me that his child was supposed to be at the YMCA Day Care Center, and he couldn't find his child. We spent the next 45 minutes trying to locate his child.

I am aware that you, Judge Howland, were also present during the events and that you witnessed what went on.

I think the record should also reflect that I am personally acquainted on a professional basis with the following people: Cynthia Lynn Campbell Brown, a special agent with the Secret Service. She was over in our offices discussing a case with our investigator shortly before she left to get married.

Aaron Coverdale and Elijah Coverdale, ages 5 and 2 are the children of one of our former clients.

Steve Curry, who worked for General Services Administration as an inspector, assisted us in the renovation of our offices.

Christi Jenkins, is an employee at the Federal Employees Credit Union where I had two accounts, and I have done business with her on many, many occasions.

Donald Ray Leonard, special agent with the Secret Service, I am personally acquainted with him in a professional capacity.

Michael Loundenslager, a planner/estimator for General Services Administration, also assisted us with our renovation in our building.

Mickey Bryant Maroney is a Secret Service agent with whom I have handled maybe twenty cases in the past few years.

Kenneth Glenn McCullough, special agent with the Drug Enforcement Administration, with a very important case pending with us in our office.

Paul Ice, who is listed -- all of those people are dead. Paul Ice, a senior special agent with the Customs Service. I am also well-acquainted with him as a result of his professional capacity and mine. He is listed as missing, and this morning's casualty list, it's my understanding that they have recovered his body, and he is dead.

Tresia Worton, another Federal Employees' Credit Union worker is still missing. I am unaware of her status.

I am personally acquainted with every one of these people. I have been down to the federal courthouse, starting now on my 11th year. I know these people. I have done business with these people, and although certainly we don't work in the same agency, we have had a cordial, working relationship that places me in the position of knowing on a first-name, by-sight basis, victims of these events.

I do not believe this is a case that falls within the ambiance of Harrelson and Shagra. This is a case of extraordinary proportions. Mr. Coyle was personally acquainted with an attorney who has also been killed as a result of this bombing incident.

I was certainly present during most of the events in the early morning of April 19th, and at one point in the afternoon I could no longer find my investigator because a man with whom he had been associated with for a number of years, who is on special assignment with the Drug Enforcement Administration, was unaccounted for, and my investigator was down at the building looking for him.

When I couldn't find my investigator after two hours, I went back down to the scene and went looking for him. Fortunately I found my investigator, and his friend was also unharmed during these events.

This is not an instance where publicity has been limited. I respectfully disagree with the Court's characterization that the principal portion of the publicity has been about the factual circumstances surrounding the bombing and the attempted recovery of victims and potential survivors.

I don't have all the papers nationwide. Certainly I have been contacted by virtually every print media and video media person or seems like I have been, requesting information about this case. But I do have the last seven editions, I don't have the Sunday edition of The Daily Oklahoman, and I would like to place these of record as well.

THE COURT: Do you want to use those at this time?

MS. OTTO: I do, Your Honor.

THE COURT: Do you have them numbered?

MS. OTTO: Yes, I do. Exhibit No. 1 -- Defendant's Exhibit No. 1, is Thursday, April 20, 1995, the banner headline is "Morning of Terror, City Struggles With Shock of Deadly Bombing."

The very next day, Friday, April 21st, this would be Defendant's Exhibit No. 2. "FBI Seeks Two in Terrorist Blast," and this is the first day we have a composite photograph of the men who are identified by the FBI as suspects.

The third came Saturday, April 22nd, is Defendant's Exhibit No. 3, "Bomb Suspect Charged," and a large picture of Mr. McVeigh and the escort of -- well, I can recognize one FBI agent right off the bat, and appears to be several others and several sheriff's deputies, Defendant's Exhibit No. 3.

Defendant's Exhibit No. 4 is the Monday April 24th, newspaper, "A Time to Grieve." It's the banner headline. This is photograph of the memorial services with President Clinton and Governor Keating. But below the fold, we have "Search Continues For Second Suspect. Man Questioned In The Investigation Of This Case Figures Prominently" on the first page of the paper.

Defendant's Exhibit No. 5, "FBI Combs Through Leads In Bombing Case" and the coverage generally continues with the FBI ongoing investigation of this case and contains some information about additional suspects who have been identified.

On Wednesday, April 26th, Defendant's Exhibit No. 6, we have the lead which is "Chemical Test Point to McVeigh." And I guess it would be the lead story: "FBI theorizes John Doe 2 May Be Dead." We have specific information about Mr. McVeigh, specific information about this case, specific information about incriminating evidence that the FBI is alleging links Mr. McVeigh to these incidents.

THE COURT: Is that 6?

MS. OTTO: Yes, this is Exhibit No. 6, correct. Defendant's Exhibit No. 7 is today's newspaper and it contains banner headline:"Friend puts McVeigh in City on Easter. Bomb Suspect Talked About Something Big."

This is an article that primarily reports the events in Terry Nichols' court hearing had in Wichita yesterday. Again, it is all information directly concerning Mr. McVeigh.

We do not have, and as I am sure the Court has reviewed the cases that have been cited, publicity cases do generally turn on the degree of saturation of the media, the length of time that has elapsed since the events, and the court proceedings, and the nature of the communications that have been conveyed in the courts.

Now, certainly I will agree with the Court's characterization that a great deal of the media focus was initially on rescue efforts, the suffering of the victims and the victims' families, and the heroic efforts of all parties in attempting to find survivors as quickly as possible. But it would be very disingenuous to behave as if the identification of Mr. McVeigh as a suspect has been some minor sideline in these stories. It has been the story.

Mr. McVeigh has been the story since he was moved from Perry, Oklahoma; and certainly since his apprehension, the papers and video media have been saturated with stories about him, about the militia, about his family, about other groups all tending to lead or lend some larger conspiracy or larger connection, which is the tendency of all of these facts, that are being presented as fact in various media.

Your Honor, it would be very difficult, I think even under the best of circumstances, if we all were from some place else and, well, all been dropped here in the middle of Oklahoma City to conduct these proceedings, to be unaware of what has been going on in Oklahoma for the last week or week and a day. It would be very, very difficult to find anyone in America who doesn't know something, at least, about this.

But to say that the publicity is not a factor, to say that publicity is not a factor right at this point, just simply is untenable. That is a tenable position to take and tenable position to maintain.

Further compounding that is the fact that we don't really have to rely on all of this media coverage. We don't have to rely on the video pictures and on television and Connie Chung standing there with a bombed-out building in the background. We know what it looks like because we were all there and we all saw it. We heard it. We smelled it. We lived through it. We are percipient witnesses. Every one of us is a percipient witness to this event. And Mr. McVeigh has the right to have his case heard even at this initial proceeding. This is not some sideline, some procedural sideline.

This is an essential part of this criminal case, and Mr. McVeigh is entitled under the Federal Rules of Criminal Procedure and under the Constitution to have his case heard from the very first instance by neutral and detached people who were not themselves percipient witnesses.

The government says, "You can't cite any cases. You can't cite any cases." You are darned right I can't cite any cases because this hasn't happened before.

You must not let the fact that this is a unique situation in which there is no case precedent cripple us to the obvious and indisputable facts. We are not people who come to this with perhaps some notion of what went on. Because we are percipient witnesses, we have our own very personal idea of what happened because we saw it, and we were there. That is why Mr. Coyle and I filed the motion to transfer at this time, so that this preliminary hearing could be conducted in another venue, in front of another magistrate, in front of another judge, one who wasn't run out of the courthouse by this blast, and Mr. McVeigh to be represented by lawyers who do not personally know victims involved in this, to be represented by a lawyer whose office wasn't largely destroyed by this blast, and to be heard in a truly neutral and detached forum.

I urge the Court to reconsider its position with regard to the motion to transfer. This is not an instance where Mr. Coyle and I are saying we want to be released because we were upset.

We want to be released because we believe it is Constitutionally required. Right from the very beginning, Mr. McVeigh is entitled to have this case considered by someone other than the persons who lived through these events.

It's the thrust of our motion. It wasn't really addressed by the government in its response, and I certainly wanted to clarify those points in the Court's order where I felt the Court might have been lacking some additional information. I strongly urge the Court to reconsider all of these matters.

THE COURT: Any objections to Defendant's Exhibit Nos. 1 through 6?

MR. GARLAND: No, Your Honor.

THE COURT: The same are admitted without objection.

Does the United States have any response to the Defendant's counsel's statement?

MR. GARLAND: Yes, Your Honor, with respect to the Motion to Transfer, as the Government's papers show, the rule is only for transfer from the district for trial.

As Charles Allen Wright wrote in his seminal book, Federal Practice and Procedure, the District Court is not authorized by this rule to transfer proceedings before the return of the Indictment.

No case, no Court has ever made such a transfer that has ever been recorded. Part of the reason may well be that because, although Mr. McVeigh may wish to transfer, there are others who are still being sought. Those people have the Constitutional right to a trial in the state where the crimes have been committed, by the jury in the state and in the district where the crimes were committed. Without their waiver it would make it impossible for the grand jury to proceed against those individuals. For that reason, then, we believe the Court's decision against transfer at this time is correct.

However, Your Honor, in light of the attorney's statement, I have to once again ask the Court on the record to ask the Defendant whether or not he objects to continuing with this hearing with his current lawyers.

I am concerned, Your Honor, that at some later time he will say that he did not consent; that she has made statements today that some day would be used to suggest later that the hearing went along without his consent. He does not have any right to not make a statement with respect to whether he consents to going forward at this time. At the least Your Honor ought to advise the Defendant that if he does not object, his objection will be taken as consent to continuing with these attorneys for whatever purposes for today.

THE COURT: The Court has carefully considered the statements of counsel here today and oral statements which supplement the motion which they previously filed. The Court, as I tried to indicate in my statement earlier about the relationship between the retained counsel and appointed counsel, the Court has to exercise oversight in connection with that. The Court has no question that the present counsel who are appearing for the Defendant will serve very professionally and respectfully and competently.

The Court's order stated that their Motion to Withdraw was overruled without prejudice, so that matter can be reconsidered. Other than that, in connection with the evidence which has been introduced, the Court believes the order satisfactorily resolved those issues. I tried to be as specific as I could in connection with the order in the limited amount of time that we have all had to work on all of this, and I believe the order is sufficiently dispositive to deal with those issues. The record has been made, as far as I'm concerned, on those points. The order that I previously entered is sustained and will continue in effect.

If there is nothing further, I will consider evidence on the probable cause issue.

MR. GARLAND: Your Honor, I still think we need to know whether the Defendant consents to going forward with these attorneys at this time.

THE COURT: Well, it is basically the Court's responsibility to, as I said, exercise oversight in connection with the appointment of counsel. As compared to an entry of appearance by a privately-retained attorney, the Court has little or no discretion in connection with that matter. You heard the positions of the attorneys who are present and the Court has exercised its judgment and oversight, which I think I'm required to do in connection with 3005. Ms. Otto and Mr. Coyle meet every qualification. The Court believes that they are professional-enough attorneys that they will competently represent the Defendant throughout this proceeding, which we all agree is narrowly focused. The only issue at this time is probable cause. We are not going to determine whether the Defendant is guilty or innocent; simply probable cause and reasonable basis.

MR. GARLAND: May I state for the record that I have heard no objection to the Defendant proceeding with these counsel.

THE COURT: Basically it is the Court's decision. The Court believes that the representation will be both professional and competent.

MR. GARLAND: The United States would call Special Agent Jon Hersley.

THE COURT: Mr. Hersley, step forward, face the Clerk, raise your right hand and be sworn.

 

DIRECT EXAMINATION BY MR. GARLAND:

Q. State your full name and spell your last name.

A. Jon Hersley, H-E-R-S-L-E-Y.

Q. What is your occupation?

A. I'm an FBI agent.

Q. How long have you been an FBI agent?

A. About 20 years.

Q. Where were you assigned?

A. To the Oklahoma City office of the FBI.

Q. Have you had responsibilities in connection with the investigation of the explosion of the Murrah Building?

A. Yes.

Q. In the course of that investigation, have you spoken with other investigating agents and experts?

A. Yes, I have.

Q. Tell us what happened on April 19, 1995 at the Murrah Building.

A. A bomb exploded at that building, severely damaging the building and causing numerous deaths and injuries.

Q. Approximately what time did the explosion occur?

A. Approximately 9:03 a.m.

Q. Approximately how many people were killed, as far as you know at this time?

A. Approximately 100. I believe it is 101 as of now.

Q. What categories are the people who were killed?

A. That includes numerous Federal employees; I believe there were 15 children that were killed at this point whose bodies have been found, and there were also several Federal law enforcement officers that were killed in the bombing.

Q. Are there any people still missing?

A. Yes.

Q. How many?

A. Between 100 and 150 is what I have heard.

Q. Do you know how many people were injured, approximately?

A. Approximately 400.

Q. What is the Murrah Building used for?

A. It houses numerous Federal agencies, Federal employees that work there.

Q. Is it used by agencies of the United States?

A. Yes, it is.

Q. Would you describe some of those agencies?

A. The U.S. Drug Enforcement Administration, the Bureau of Alcohol, Tobacco and Firearms, the U.S. Secret Service, Department of Housing and Urban Development, the Social Security Administration, and numerous other Federal agencies.

Q. Have you consulted with explosive experts of the FBI?

A. Yes.

Q. What caused the explosion of the Murrah Building?

A. A bomb.

Q. Have the experts informed you as to where the bomb was located at the time it went off?

A. Yes.

Q. Please describe that to the Court.

A. It was located inside a Ryder Truck that was parked in front of the Murrah Building on the north side.

Q. How did the experts know that?

A. Due to the uniqueness of the blast damage that was suffered on certain components of the truck, they are able to tell that it was actually located inside that truck.

Q. Has an effort been made to trace that Ryder Truck to the point of which it was rented?

A. Yes.

Q. What methods are used to trace that truck?

A. There was a portion of the vehicle identification number that was located and we were able to trace from that portion the full vehicle identification number and then take that on to determine who actually had the vehicle.

Q. In addition to the vehicle identification number, or VIN number, was there another part of the truck that permitted tracing?

A. Yes.

Q. What was that?

A. The license plate.

Q. I have marked what will be called Government's Exhibit 1 for identification and I am showing it to defense counsel.

Do you recognize Government's Exhibit 1?

A. Yes, I do.

Q. What is Government's Exhibit 1?

A. This is the Florida license plate that was on the Ryder Truck.

MR. GARLAND: Your Honor, the Government moves Exhibit 1 into evidence.

THE COURT: Any objection?

MR. COYLE: No objection.

THE COURT: The same will be admitted.

Q. You said that by using the vehicle identification number and the license plate, that you were able to trace the truck to a rental location; is that correct?

A. Yes.

Q. What was the result of that tracing?

A. The Elliott's Body Shop in Junction City, Kansas.

Q. Was the rental agent at that location interviewed?

A. Yes.

Q. Did he advise as to when that truck was rented?

A. Yes.

Q. When was that?

A. The truck was rented on April 17th of this year.

Q. By how many people?

A. One person filled out the rental agreement; there was another individual with that person when they picked it up.

Q. What did the individual who filled out the rental agreement provide on the rental agreement?

A. Provided his name.

Q. Did he provide any other identifying information?

A. Yes, I believe a Social Security account number, as well as a driver's license and also his address.

Q. Was an effort made to trace the Social Security number or driver's license and address?

A. Yes.

Q. What was the result of that tracing?

A. They were both his numbers.

Q. Did the rental agent assist in the creation of a composite drawing of the individual who rented the truck?

A. Yes.

MR. GARLAND: Your Honor, I have what has been marked as Government's Exhibit 2 for identification.

(Government's counsel displays Exhibit 2 to counsel.)

Q. Do you recognize Government's Exhibit 2?

A. Yes, I do.

Q. What is Government's Exhibit 2?

A. This is the composite drawing that was prepared.

Q. It was prepared with the information provided by who?

A. By the employee at the Elliott's Body Shop.

Q. Did he advise the FBI as to whether that composite drawing was a fair and accurate representation of the person that rented the truck?

A. Yes, he said it was.

MR. GARLAND: I offer Government's Exhibit 2 into evidence.

MR. COYLE: No objection.

THE COURT: Exhibit No. 2 is admitted with no objection.

MR. GARLAND: I ask the Court to take its own notice as to its resemblance to the Defendant.

Q. (By Mr. Garland) Mr. Hersley, is there also a hotel named the Dreamland Hotel in Junction City, Kansas?

A. Yes.

Q. Had interviewing been done at that hotel?

A. Yes.

Q. What did people at the hotel advise the agents?

A. That an individual had checked into the hotel on April 14th of this year.

Q. How long did he stay?

A. Until April 18th.

Q. Was any connection made between the individual and the representation in Exhibit 2?

A. Yes.

Q. What was that connection?

A. The individual at the hotel advised that the individual that had stayed at the Dreamland Hotel between April 14th and April 18th of this year strongly resembled the composite picture.

Q. What name did he register under at the hotel?

A. Tim McVeigh.

Q. Did he provide an address?

A. Yes.

Q. What was that address?

A. 3616 North Van Dyke in Decker, Michigan.

Q. Was he seen driving any automobile at the time?

A. Yes.

Q. What kind of automobile?

A. A yellow Mercury.

Q. What room did he register in at the hotel?

A. Room 25.

Q. Were the employees at the Dreamland -- were any employees at the Dreamland shown a photo spread which included a picture of Mr. McVeigh?

A. Yes.

Q. What was the result of that photo identification?

A. The employee positively identified the picture depicting Timothy McVeigh as being the person that stayed at the room on that occasion.

Q. What was that room?

A. Room 25.

Q. Was an analysis made of telephone calls from the Dreamland Motel during that period?

A. Yes.

Q. Was there a call on April 15th --

A. Yes.

Q. -- from Room 25?

A. Yes, there was.

Q. Is that the same room that Mr. McVeigh was registered in?

A. That's correct.

Q. Where was that call made to?

A. To a local restaurant in Junction City.

Q. Have you examined the receipt of the restaurant for that date?

A. Yes.

Q. What does it show?

A. It shows that the order was placed by an individual using the name "Kling."

Q. Is "Kling" the same name as on the Ryder Truck form?

A. Yes.

Q. Did it show what room number the order came from?

A. Yes, Room 25.

Q. Was a photo spread shown to the delivery man?

A. Yes.

Q. Was he able to identify Mr. McVeigh?

A. No.

Q. On April 17th, that was the day that the Ryder Truck was rented; is that correct?

A. That's correct.

Q. Did any Dreamland employee see Mr. McVeigh?

A. Yes.

Q. In what connection did they see him?

A. They saw him arrive at the Dreamland Motel driving the Ryder Truck.

Q. On April 18, the following day, did any employee of the Dreamland Motel see Mr. McVeigh?

A. Yes.

Q. How did they see him then?

A. At approximately 4 a.m., Mr. McVeigh was observed in the Ryder Truck.

Q. Later in the day did they again see Mr. McVeigh in the Ryder Truck?

A. No.

Q. Now, in Paragraph 6 of the Affidavit that was attached to the Complaint in this case there is a discussion of three witnesses who identified a person in Exhibit 2, the composite, as having been in the vicinity of the Murrah Building on the morning of the explosion; is that correct?

A. Yes, it is.

Q. Have those people been able to confirm that they saw the Defendant, Tim McVeigh?

A. No.

Q. On April 19th, is that the date of the bomb?

A. Yes.

Q. Was Mr. McVeigh arrested on that day?

A. Yes, he was.

Q. Would you explain that, please.

A. At approximately 10:30 a.m., Mr. McVeigh was arrested by an Oklahoma Highway Patrol Trooper at a location near Perry, Oklahoma.

Q. The reason for the stop?

A. Mr. McVeigh's yellow Mercury did not have a license plate on it at that time and he was stopped for that reason.

Q. About what time was the stop?

A. Approximately 10:30 a.m.

Q. About how long after the blast was that?

A. Approximately one-and-a-half hours.

Q. Where was the stop?

A. Near Perry, Oklahoma.

Q. Approximately how long of a drive is it from the Murrah Building to Perry, Oklahoma?

A. Less than an hour-and-a-half.

Q. I want to show you what has been marked as Government's Exhibit 3 for identification. (Government's counsel displays Exhibit 3 to counsel.)

Q. (By Mr. Garland) Do you recognize Government's Exhibit 3?

A. Yes, I do.

Q. What is Government's Exhibit 3?

A. It is a Michigan driver's license in the name of Timothy James McVeigh.

Q. Where was it obtained?

A. From Mr. McVeigh.

Q. At the time of the arrest?

A. Yes.

Q. Does it show an address?

A. Yes.

Q. What is that?

A. 3616 North Van Dyke Road, Decker, Michigan.

Q. Is that the same street and town as the entry on the Dreamland Motel register?

A. Yes, it is.

Q. When Mr. McVeigh was stopped, was anything found on his person?

A. Yes.

Q. What was that?

A. He had a Glock .45 semi-automatic in a shoulder holster, with two magazines.

Q. Was the Glock loaded?

A. Yes.

Q. What kind of bullets did it contain?

A. Black talon.

Q. Is there a street name for the black talon bullet?

A. Yes.

Q. What is that name?

A. It is referred to as a "cop-killer bullet."

Q. Was Mr. McVeigh's clothing tested?

A. Yes.

Q. What was the results of the test?

A. It tested positive for traces of PETN.

Q. What is PETN?

A. Penta erythratol tetral nitrate.

Q. What is penta erythratol tetral nitrate?

A. It is an explosive that is commonly used in detonating cord.

MR. GARLAND: The Government has no further questions.

I would like to move into evidence Government's Exhibit 3.

MR. COYLE: No objection to the introduction of Government's Exhibit 3.

THE COURT: Admitted without objection.

MR. GARLAND: Thank you.

THE COURT: Cross-examine.

MR. COYLE: Thank you.

 

CROSS-EXAMINATION BY MR. COYLE:

Q. Good afternoon, Agent Hersley.

A. Good afternoon.

Q. Would you tell me, please, sir, if prior to the time that you came to court to testify today if you reviewed any papers or documents to refresh your recollection in preparing your testimony here before the Court?

A. No.

Q. So you haven't read any official documents in connection with this case to prepare for your testimony?

A. Not to prepare for my testimony, I have not.

Q. Did you discuss any of the documents or anything other than the exhibits that have been introduced into evidence in court today with any of the Assistant United States Attorneys involved in the case prior to your testimony?

A. I don't believe so.

Q. Can you tell me, please, sir, the agents that you have spoken with to obtain the information that you have testified to in a hearsay fashion before the Court today?

A. Primarily Rick Hahn.

Q. Rick?

A. Rick Hahn --

Q. Okay.

A. -- from the FBI; numerous agents during the course of the investigation, as it is ongoing. I also spoke with another individual that is a bomb tech for the FBI.

Q. What is his name?

A. I spoke with an individual from the Medical Examiner's office. I spoke with agents in Junction City, Kansas and other agents throughout the Country.

Q. Now, can you tell us, please, sir, what your role has been in the investigation?

A. Yes, I have been assisting in the investigation in regard to Mr. McVeigh. I have also been participating in the ongoing investigation in an attempt to further identify and locate other individuals who may have been involved in the bombing on April 19th, 1995.

Q. In your assistance in the investigation, what has been your primary role? Have you been a keeper of evidence, a maker of calls, what has been your primary role?

A. I have done both of those things, as well as numerous other things. If you refer to a keeping of the original evidence, I have not been involved in actually handling the original evidence. I have been involved in tracking and keeping up with copies of that evidence insofar as further-leading investigation material is concerned. Also in coordinating the efforts of other FBI offices in the ongoing investigation in an attempt to identify the additional people that were involved in the bombing that tried to prohibit anyone else from getting injured or killed.

Q. So am I correct that you more or less have been involved in all phases of the investigation --

A. Pretty much so.

Q. -- to date?

A. Pretty much.

Q. Is that the way it is with all of the special agents of the FBI on this investigation, they have handled all different aspects? They call agents -- every agent is calling agents all over the Country, tagging in evidence and looking at it and making sure that all of this is kept track of; is that right?

A. No, that's not really an accurate depiction of what is taking place. The agents have been given certain assignments and certain responsibilities and they have been going about carrying them out.

Q. Tell us, please, sir, so that I can specify what it is you have been involved in, could you tell us, please, what, for instance, your activities were on the day of Wednesday, April 19th? What was your specific assignment on that date? I assume you had something specific.

A. On April 19th, as most of the FBI agents in Oklahoma City were sent down to the vicinity of the Murrah Building after the bomb blast, I was charged with staying in the office to help communicate the activities of everyone concerned on that date. As it has evolved, I have been responsible primarily for keeping up with the activities of Mr. McVeigh.

Q. Are you talking about on the 19th?

A. No.

Q. I believe that was my question, just on the 19th.

Now, is that what you did on the 19th? You were on the phone and you never left the office?

A. Primarily, yes.

Q. Now it is my understanding on the 19th at some point the offices of the FBI were evacuated here in Oklahoma City; is that correct?

A. Evacuated, except for certain personnel.

Q. You were one of those who stayed behind, sir?

A. Yes.

Q. Now, can you tell us, please, sir, what your primary responsibility and assignment was on April 20th, that would be Thursday?

A. Pretty much the same as it was on the 19th.

Q. So once again you were there at the offices of the FBI?

A. Yes.

Q. Was your job there -- that's the offices at 50 Penn Place, not this Command Post we have heard of, right?

A. It is at 50 Penn Place, yes.

Q. Your obligations on the 20th were placing calls to other places in the Country?

A. Yes.

Q. Would that be based upon evidence that people would bring you or tell you about that had been found in the field or tell us how that worked on the 20th?

A. We would get information about evidence that had been found in various locations that would require that we send out and conduct additional investigation both here in Oklahoma City and other locations throughout the Country. So I would be responsible for help overseeing the continued investigation in that regard to help identify other individuals who may have been involved.

Q. On the 21st, on Friday?

A. The same thing on Friday and the same thing on Saturday.

Q. So essentially am I correct, sir, that all of your duties from the date of the 19th through the 21st were in the offices of the FBI at 50 Penn Place in Oklahoma City?

A. Pretty much so, yes.

Q. Now beginning on Sunday, can you tell us, please, what your duties were?

A. I believe that's the day that I started reporting over to the -- Sunday or Monday I started reporting over to the Command Post that was set up and was then responsible for the investigation as it pertained to Mr. McVeigh.

Q. So am I correct, then, that you have been the agent in charge, then, of the investigation as it pertains to the accused, Timothy McVeigh?

A. I have been responsible for keeping up with the investigation regarding Mr. McVeigh, that's correct.

Q. Explain to us what "keeping up" means?

A. There is a number of leads that have been -- are being carried out in the continuing investigation. I keep track of that investigation. I keep track of certain evidence that has been found -- although not the actual, physical custody of that evidence; I want to clarify that. I am provided with copies of documents and other records that are -- have been located. We are cataloging those documents, keeping up with the investigation that is going on in other offices of the FBI, including talking to agents that are conducting investigations in those offices regarding what they have been able to determine and future investigation to be conducted.

Q. Now, is this material all logged into a computer, then?

A. Portions of it.

MR. GARLAND: Objection, Your Honor. We are well beyond the scope of a probable cause hearing. The determination of the way in which the FBI goes about the investigation is not a proper subject for discovery.

THE COURT: Overruled.

You may answer the question.

MR. COYLE: I asked if he has been logging these matters, these clues, this evidence that he has looked at, these kinds of things that he has testified to.

THE COURT: I don't believe he answered the question. Did he answer that question?

MR. COYLE: No, it was objected to.

THE COURT: I overruled it.

Do you want him to answer the question?

THE WITNESS: Could you repeat the question?

MR. COYLE: I knew he would ask me that.

Q. (By Mr. Coyle) In the course of your investigation and during the time particularly that you moved to the Command Post -- and I will get back to the other place -- but since you have been at the Command Post -- that's what it is called. You understand what I'm talking about by "Command Post"?

A. Yes, I do.

Q. Since you have been at that particular location, as you get leads, as you get copies of evidence, photocopies or photographs of evidence, have you then taken those and logged them into a computer?

A. No, I don't do that. Some of the documents and the results of the interviews are being logged into a computer. That is being done by other personnel at that location and other locations.

Q. So your job is to just take a look and keep track of all of the evidence and then you assign other FBI agents out to do other tasks or to make calls?

A. There are other agents that are assigned to the same types of duties that I am there in regard to other potential individuals that were involved in the bombing. I also coordinate with those individuals insofar as information that is received regarding Mr. McVeigh, in an effort to identify some of the other subjects that were involved in the bombing here in Oklahoma City.

That's our primary focus right now is to try to determine the identity and the location of the other subjects so that we can prohibit another bomb from going off.

Q. You told us in your direct examination by Mr. Garland that you had consulted with explosive experts; is that correct?

A. Yes.

Q. Can you tell me who those were?

A. Rick Hahn, and I believe the other individuals -- one of the other individuals is Bill Jockney.

Q. Who is Rick Hahn?

A. He is an FBI bomb expert that has been qualified to testify in cases and has testified on numerous occasions in cases across the Country.

Q. Can you tell me where your conversations with Mr. Hahn -- Agent -- is it Agent Hahn --

A. Yes.

Q. -- or is he a technician?

A. No, he is an agent.

Q. Where your conversations with Agent Hahn took place?

A. Primarily at the Command Post.

Q. Were other persons present during those conversations?

A. During some of the conversations.

Q. Can you tell me when those took place?

A. Over the last couple of days.

(AFTER THE RECESS, THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT.

THE COURT: Let the record show that all parties are present and the defendant is present.

MR. COYLE: May I have just a minute?

THE COURT: Sure. Let the record show that counsel are present.

The defendant is present in person, and you may proceed with cross-examination.

BY MR. COYLE:

Q. Agent Hersley, do you have any indication or have but been advised that any individuals saw the Ryder Truck explode?

A. Primarily the information that I have is that people saw the Ryder Truck shortly before the explosion. I don't know of anybody by name myself that actually saw the explosion and lived through it.

Q. Okay, so --

A. There are people inside the building that made it through obviously and would have seen the explosion or parts of it.

Q. Well, I don't think my question to you is theoretical. Are you aware of a witness that you know their name and might be available and alive to testify in court? That's a better question that saw the Ryder Truck explode.

A. Not that I can recall right now.

Q. That would be someone pretty important and you're privy to that kind of information, correct?

A. Yes.

Q. Now, is there any pictorial or visual recording of the vehicle parked over the crater, the site what you say is the site of the explosion?

A. I don't believe there is a picture actually where that crater is. There are other pictures of the Ryder Truck on that street.

Q. And where is the Ryder Truck located at the time of the pictures?

A. Heading east on Fifth Street towards that location.

Q. It's shown heading east?

A. Yes.

Q. And can you see the tag on the pictures?

A. No.

Q. So you say there is film available that shows the -- a Ryder Truck in an easterly direction that is traveling in an easterly direction on Fifth Street?

A. Yes.

Q. Is it past the street that we know as Harvey?

A. I am not -- I have not studied that film in detail. It's in that general vicinity right in there. It may be the video that I saw. I believe it is just before -- well, I am not sure. I better not say that.

Q. Well, Harvey Street --

A. I don't know.

Q. Harvey Street is the street that is immediately west of the Murrah Building?

A. That is correct.

Q. Are the photographs that you saw or is it still photo or film?

A. What I saw was the still photos.

Q. Is it a still photo that has been removed from a film?

A. Yes.

Q. Were those still photos that you saw, do those appear to you to be east of the street that we know as Harvey?

A. I was not focusing on that picture to determine whether or not -- whether it was east or west of Harvey. It was in that general location. I can say that.

Q. So it was a closeup more of the truck than its location?

A. It wasn't a closeup photo, it was taken from a camera off one of the buildings in the vicinity.

Q. Did you make a determination of what building it came off of?

A. No, I did not myself.

Q. Okay, did anyone?

A. I believe one of the other agents was able to determine that it came from one -- one of the films came from the Regency Tower Apartments.

Q. Can you tell in the photograph who is driving the truck?

A. No.

Q. And is the truck parked or is it moving?

A. As I mentioned, I saw the still photographs of the picture or the footage was frozen at this time when a still photograph was made, but I believe the truck due to the continuation of the still photographs that the truck was moving in an easterly direction.

Q. That is also a one-way street there from west to east, am I correct, sir?

A. That is correct.

Q. What was the size of the truck that you saw in the photographs?

A. I could not tell myself exactly what the size was from the photograph that I saw, but I would estimate it from what I saw to be approximately 20 feet.

Q. Was there a time indicated on the picture of the film that you saw?

A. Yeah.

Q. Okay, can you tell us, please, sir, what that time was?

A. It was in the proximity of 9:00 a.m. As I mentioned, I did not study the photographs in great detail, and I don't know the exact time on the photographs, but it was in the proximity of 9:00 a.m.

Q. Can you tell us when you viewed those photographs, please, sir?

A. I believe within the last two to three days.

Q. I believe you told me earlier that the license tag is not visible on the photographs; is that correct, sir?

A. Not visible on the photographs that I have seen, that is correct.

Q. Are you aware of any other photographs in which the license tag might be visible?

A. No, except for the recovery, and I am not aware of that being on the bumper. I would presume there are photographs taken there.

Q. Well, I understand that it has been photographed by the FBI and the way that we see it.

MR. COYLE: May I approach?

THE COURT: Yes.

BY MR. COYLE:

A. Yes.

Q. As we see it as Government Exhibit No. 1. But aside from Government Exhibit No. 1, are you aware of any other photographs aside from those photographs taken of it by the FBI subsequent to its retrieval after the time of the explosion. Are you aware of any photographs of a license tag prior to the time of the explosion in front of the Murrah Building?

A. No.

Q. Are you aware of any photographs that were taken at any time prior to the explosion at the Murrah Building of the accused Timothy McVeigh in or about the truck that you have described as a Ryder rental?

A. No.

Q. And I include in that, so we don't have a semantical difficulty of any sort -- any sort of photographs, film footage, surveillance cameras, any other film of any type that you are aware of, Agent, that shows the accused Timothy McVeigh anywhere in the vicinity of the Murrah Building on April 19, 1995 at or before 9:00 a.m.

A. No.

Q. 9:03 a.m. -- at or before 9:03 a.m.

A. That is correct.

Q. "No" is your answer?

A. Yes.

Q. I believe you told us in a previous answer that there is no visual or pictorial record of the vehicle parked over the bomb -- over the site where you say it exploded in front of the Murrah Building?

A. Not that I have seen. I have not viewed all of the film of that location on that morning, so I can't speak to that entirely, but I have not seen it.

Q. Have you been advised that that photograph exists. Have you been told about that in your capacity as an agent working there at the command post? . No.

Q. That would be something as an agent working on the case and particularly you told us at the outset that your responsibilities were in regard to Mr. McVeigh; am I correct?

A. Yes, and his activities.

Q. And that would be something -- the movement of the Ryder Truck and its location is something particularly important to which the government would be concerned in regard to Mr. McVeigh; am I correct?

A. Yes, you are correct as there are many other things that the government is concerned about and different agents are assigned different responsibilities as this is a fast moving investigation possibly involving more subjects that may have been involved in the bombing. So other agents have been assigned responsibilities in regard to any films or pictures that may be retrieved for viewing purposes.

Q. Well, how did you see the ones that you have testified about here earlier? Did you happen to see them laying on a desk and look at them or did someone bring them to your attention? How did you see those?

A. One of the agents that have been tasked with those responsibilities showed me those photographs.

Q. Now, I assume -- who are those agents that are tasked with the responsibility of reviewing photographs and film footage?

MR. GARLAND: Objection, Your Honor, this is now purely speculative.

THE COURT: Overruled.

BY MR. COYLE:

A. The agent that showed me the photographs was Walt Lamar.

Q. Is he a local agent here?

A. Yes, he is.

Q. Is he known to you as a photographic expert?

A. No, he is not. He is not known to me as that.

Q. And is he the one that you inquired of as to whether or not there were any photographs of the accused, Mr. Timothy McVeigh in possession of the government at or about the Ryder Truck? You asked him that question I assume; did you not?

A. I did not inquire of Agent Lamar about these photographs. He brought it to my attention because there is a possibility of a particular car being involved in one of those photographs that he was showing me. We are continuing investigation to try to determine the actual identity of that car.

Q. What did that car look like in the photograph?

MR. GARLAND: Objection, Your Honor, we were going in the area of discovery now.

THE COURT: Sustained.

BY MR. COYLE:

Q. In the photograph concerning the other vehicle or anything in any of the surveillance photographs that you have seen exclude the Ryder Truck, not only around the Ryder Truck? Have you seen Mr. McVeigh in any of the other photographs period in or about the area of the Murrah Building?

A. No.

Q. Now, you told us that there were witnesses that saw the vehicle at or near the scene of the explosion. I am talking about the Ryder Truck, that saw the Ryder Truck that; do you recall testifying to that earlier?

A. There are witnesses that have advised that they saw the Ryder Truck in the vicinity of the Murrah Building on that morning, yes.

Q. And have those witnesses viewed Mr. McVeigh?

A. Have they viewed him?

Q. Yes, in sort of a photo line up or live line up. Any of those witnesses who say they saw the Ryder Truck?

A. Yes. Well, to say they saw the Ryder Truck, I don't believe that those individuals have been involved in a line up.

Q. Okay, how many individuals are you aware of agent Hersley that saw the Ryder Truck at the scene of the explosion?

A. At the actual seen as opposed to in the vicinity.

Q. At the actual place, the site of the explosion.

MR. GARLAND: Objection, Your Honor, again goes to discovery of other witnesses in the matter. It doesn't go to the probable cause.

THE COURT: Overruled.

BY MR. COYLE:

A. One or two.

Q. You are not sure?

A. I know of one. There are other agents that have been interviewing potential witnesses that may have sighted the Ryder Truck in that vicinity. There are other, still other agents that have interviewed people who saw the Ryder Truck in the vicinity of the Murrah Building on that morning.

Q. So you know of one witness who says they saw the truck at the location where you have told the Court you have been advised that it exploded; am I correct?

A. Yes.

Q. Did you interview that person?

A. No, he was interviewed by another agent.

Q. Do you know the location of that other person at the time that he viewed the truck and the location that you have described for us?

A. Yes.

Q. Can you tell us, please?

A. He was driving his vehicle east on Fifth Street and passed right along beside the vehicle.

Q. How long or how much time passed between the time that the witness told you that he saw the Ryder Truck and the explosion?

A. Maybe a minute or two.

Q. How far was his vehicle -- had the witness's vehicle travelled?

A. When the bomb went off, that witness indicated that he was between Robinson and Broadway on Fifth Street.

Q. Has he been shown to your knowledge a photo lineup of the accused Timothy McVeigh?

A. He has not been shown a photo lineup.

Q. Has the FBI prepared a photo lineup that include the picture of Timothy McVeigh?

A. Yes.

Q. Have you viewed that --

A. Yes.

Q. -- photo lineup?

A. Yes, I have.

Q. Does the witness that you have told us saw the truck in that position, has that witness viewed Mr. McVeigh in a live lineup?

A. No.

Q. Can you tell us why not?

A. Yes.

Q. Okay. We are in the process of getting the line up shown to different individuals as well trying to correlate all of the other investigation with the other offices in an effort to try to identify the other subjects that were involved in the bombing. That is a priority of ours in order to try to if other people are involved get them identified and take them into custody to try to prohibit another bomb going off in another area or other citizens being injured or killed.

Q. Well, eyewitness testimony, you would agree me, with fades during the passage of the time; does it not?

A. To some extent.

Q. It's extremely important if you want to identify somebody, that you show them the picture as soon as you can, don't you?

A. As soon as reasonably possible, yes.

Q. And a person who said he saw the Ryder Truck there has never been shown any photographs of the accused in any way?

A. He was shown a composite that was drawn up, the composite that we have testified about and he identified that composite as strongly identifying the individual that he saw at the scene.

MR. COYLE: May I approach the witness, Your Honor?

THE COURT: Yes.

BY MR. COYLE:

Q. Are we talking about Government Exhibit No. 2?

A. Yes.

Q. The composite photograph?

A. Yes.

Q. He was shown that photograph?

A. Yes.

Q. I am sorry. That drawing?

A. This composite?

Q. That's the witness that you have been telling us about that was driving by there?

A. Yes. . And he said that to you. What were the words that he used; do you remember?

A. I wasn't there.

Q. So you don't know if he used strongly resembled or exactly what he said?

A. The agent that talked to him said that he strongly resembled whether that was actually the words of the witness. I was not present.

Q. Where did -- and as I understand you are involved, your involvement has been in the investigation of Timothy McVeigh. Where did this witness, the first witness you have told us about say that he saw the composite or a person that strongly resembled the person in the composite in relation to the Ryder Truck?

A. He was walking from the south side of Fifth Street by where the truck was parked in a northerly direction across Fifth Street.

Q. So he was walking directly across Fifth Street?

A. He was walking away from the truck, the area where the truck was located.

Q. Well, he was walking -- I'm not trying to be confusing -- if he is walking north, he is walking across Fifth Street. Am I correct?

A. That's what I testified.

Q. Is that what the witness has told the agent that he saw, what has been identified there as John Doe No. 1, I think, is that what it says on Government's Exhibit 2? Am I correct, is that Government's Exhibit 2?

A. Yes, it is.

Q. On Government's Exhibit 2, he saw him walk across the street, across Fifth Street?

A. Yes.

Q. Did he walk in front of the vehicle or behind the vehicle of the witness?

MR. GARLAND: Objection, Your Honor, as we are not relying on identification at the time of the bombing for probable cause. This is purely for discovery. We have an ongoing investigation. We need to protect our witnesses for the purpose of determining what happened. We are not relying on this witness for the purpose of probable cause. All we are doing here is discovery.

MR. COYLE: May I respond? I have two responses. First of all, he testified to it in direct examination, which I think makes it an appropriate subject to cross.

Secondly, it was also in the Affidavit that bears Your Honor's initials. I think that is very important that the Court has already considered that matter for purposes of probable cause. I think as to the weight of the evidence, the Court can consider the agent's answers and how these particular witnesses that they have set forth in their Affidavit, how they had an opportunity to observe and to see the things that are set forth in the Affidavit. That's the reason for my questions.

THE COURT: Is that the matter stated in the Affidavit at the bottom of page 2, top of page 3?

MR. COYLE: Yes, sir.

THE COURT: Objection overruled.

Q. (By Mr. Coyle) Where did the witness see him in relation to the vehicle that he was driving, the witness was driving?

MR. GARLAND: I'm sorry to interrupt. I want to clarify. He did not testify about this on direct. The only statement on direct was that the paragraph he is referring to in the Affidavit we are not relying on for probable cause. That's paragraph 6. Those witnesses did not identify Mr. McVeigh, so those are not part of what we would ask the Court to look at for probable cause. There was no testimony and I asked no question about the witness that Mr. Coyle is presently asking questions about.

THE COURT: Nonetheless it is part of the overall probable cause in the case.

Q. (By Mr. Coyle) Do you understand my question, Agent Hersley?

A. Yes.

Q. Where was the witness in relation to the person that they described?

A. The witness was walking away from the location where the truck was parked, walking across the street, across Fifth Street, to the north.

Q. I thought the witness was in a car.

A. I'm sorry, he identified the individual pictured in the composite as walking away from the area where the truck was parked, across Fifth Street.

Q. Was the person that strongly resembled the person in the composite, was he in front or behind of the car that the witness was driving?

A. He was in front of it.

Q. How far in front of it?

A. He had to slow down, as the individual he identified in the composite was crossing the street, to keep from hitting him.

Q. What was the individual wearing who was crossing the street?

A. I don't recall the individual that was shown the composite that we are speaking about describing the clothing. He may have. As I stated, I was not present during that interview.

Q. That would be something pretty important to determine, wouldn't it?

A. Yes.

Q. Now, did the witness that you have described for me, did he see the person that strongly resembles the composite, did he see that before or after it was released to the news media?

A. He saw the composite before he saw anything on television or in the news media. He later saw Mr. McVeigh on television.

Q. Did you or another agent of the FBI show him Mr. McVeigh on television?

A. No.

Q. Did he then identify Mr. McVeigh from television?

A. Yes. Once he saw Mr. McVeigh on television, he said that he was certain that was the individual that was crossing the street in front of him that day, that morning.

Q. When did he see Mr. McVeigh on television?

A. Shortly after -- shortly after he had identified the composite. Not the same day; I believe it was a day or two later.

Q. When was he shown the composite?

A. I don't know the exact date. There have been numerous interviews conducted in that regard. I have not -- I cannot tell you each day that each one of them was done on.

Q. So there have been numerous interviews conducted of this particular witness?

A. No, there are numerous witnesses -- potential witnesses and witnesses that have been interviewed.

Q. Now, is this witness that you have been describing for me is he one of the witnesses who is described in the Affidavit signed by Agent Gibbons?

A. No.

Q. You are familiar with that Affidavit that is signed by Agent Gibbons, are you not?

A. Yes.

Q. Were you involved in the preparation of the Affidavit of Probable Cause that was signed by Agent Gibbons?

A. No.

Q. Did this witness call you and tell you that he had seen Mr. McVeigh on television or did he call and advise another agent who told you?

A. He advised another agent. He advised the agent that had spoken with him the first time.

Q. Who was that, sir?

A. John Hippard.

Q. Is he a local agent?

A. Yes, he is.

Q. I assume you reviewed prior to your testimony here, because you went over part of it, the Affidavit of Probable Cause that was filed in this case, correct?

A. I have read it, yes.

Q. It talks about the interview of three witnesses who were near the scene of the explosion at the

A.P. Murrah Federal Building prior to the detonation.

Where was -- they talk about the three witnesses were shown a copy of the composite drawing. Were they all shown it at the same time, to your knowledge? Or were they in separate areas or all together when they were shown the photograph?

A. I was not present during any of those on-site interviews. I don't know the exact manner in which any of those interviews were actually conducted, so I'm not able to answer that.

Q. Can you tell me, please, the witnesses advised they observed a person at approximately 8:40. Were these persons together, these three witnesses?

A. I don't know if they were together or not. You mean did they know each other? Were they traveling together or --

Q. Well, no. If they were in the same general vicinity or same general area or if they were -- maybe they were all just brought together as witnesses?

A. I don't know about those three witnesses, where they were interviewed, exactly where they were interviewed at that location. I did not speak with that agent about those interviews.

Q. Do you know where they were purportedly standing at the time that they made the observations that were sworn to in the Affidavit?

A. I believe that they were either at or in the Murrah Building at the time of the alleged sighting. I don't know the location where they were interviewed.

Q. Well, I have gone from this interview location. We have determined that you don't know where they were interviewed.

Have you ever seen or talked to any of these three witnesses?

A. No.

Q. Have you seen reports or talked to the agents who talked to them?

A. No, I have not.

Q. Do you know where the witnesses, these witnesses -- the three witnesses in paragraph 6 located at the bottom of page 2 and the top of page 3 of the Affidavit of Probable Cause filed in this case last Friday -- do you know where those witnesses were physically located at the time they told agents of the FBI that they saw someone resembling a composite drawing of un-sub one?

A. They were either at the Murrah Building or inside of it, but I do not know the exact location where they were.

Q. You didn't make that determination?

A. No.

Q. You didn't ask anyone?

A. No.

Q. Were they in the building at the time of the explosion?

A. I doubt it.

Q. Do you know where they were at the time of the explosion?

A. No, I do not.

Q. Didn't make that determination, either?

A. No.

Q. And you are kind of one of the agents in charge of evidence against Timothy McVeigh?

A. Yes.

Q. It says here they again observed un-sub one, that is this photograph here that is Government's Exhibit 2; is that correct?

A. Right.

Q. I'm sorry, the composite, at approximately 8:55 when they departed, correct?

A. That's the time --

Q. The time --

A. Could you repeat your question? I'm not sure of what you are asking.

Q. Could I approach the witness?

THE COURT: Yes.

Q. (By Mr. Coyle) What I'm doing is reading here from page 3 where they say they again observed un-sub one still in front of the Fifth Road entrance of the building where they departed minutes before the explosion.

A. Okay.

Q. Am I correct, sir, that they left -- they told agents of the FBI that they left and departed the scene of the explosion approximately eight minutes prior to the time that the bomb detonated?

A. That's correct.

Q. Describe for us what it was that these witnesses told agents of the FBI that occurred at approximately 8:40 a.m. on April 19th when they saw the person in Government's Exhibit 2 in front of the -- or somewhere when they entered the building. Do you know what he was allegedly doing?

A. No, I'm not familiar with the content of that interview, with the exception that the sighting, the alleged sighting occurred in or around the Murrah Federal Building that morning.

Q. And that they didn't see anything after 8:55, you are aware of that?

A. Yes.

Q. Do you know whether or not this is a family or whether or not they are okay or where they are located? Do you know anything about them?

A. I don't know if they are a family. I do know that they are still alive.

Q. How do you know?

A. From the conversations with Agent Hippard.

Q. You did check to find out that much?

A. Yes, I spoke with Agent Hippard after these three people had again been in contact with the FBI.

Q. Have these three people viewed Mr. McVeigh in a line-up?

A. No.

Q. Have any of these three people viewed a photographic line-up of Mr. McVeigh?

A. No.

Q. So they haven't been shown a photo line-up and they didn't see him in the live line-up conducted Saturday, correct?

A. That's correct.

Q. Can you tell us why not?

A. Yes, these three individuals had called back in after viewing Mr. McVeigh on television and were not able to identify him as being at the building.

Q. So this information that you testified earlier about these three witnesses in terms of probable cause should be disregarded by the Judge, then, shouldn't it?

MR. GARLAND: Objection, Your Honor, his testimony was that these witnesses were unable to confirm. It should not be disregarded. The purpose of that testimony --

THE COURT: The Court will make its own decision about it. Go ahead.

Q. Any other witnesses, other than the ones that you said that saw the man that closely resembled someone in the composite crossing Fifth Street in a northerly direction prior to the explosion, any other witnesses that saw someone that resembled the person described in the composite identified in this hearing as Government's Exhibit 2 other than the witness you told us about and the three witnesses who are identified in paragraph 6 of Agent Gibbons' Affidavit of Probable Cause?

A. Yes.

Q. Can you tell us about those? How many of them are there, please, sir?

A. There's at least several witnesses that have identified Mr. McVeigh as closely resembling the composite photograph and seeing him in the vicinity of the Murrah Building on that morning.

Q. Can we go to several witness number one. Tell me where that witness viewed the person who you say closely resembles Mr. McVeigh?

A. Yes.

Q. Okay. Where was witness one?

A. Witness one observed the individual that she identifies as strongly resembling Mr. McVeigh and identified in the composite, saw Mr. McVeigh at the Federal Building approximately one week before the bombing and possibly again on the 17th and 18th of April.

MR. GARLAND: Your Honor, I really would like to once again object to continuing discovery with respect to additional witnesses. We have an ongoing investigation. The ability to conduct that investigation is hampered by this. We are not relying upon identification at the time of the bombing. It is not relevant to our probable cause determination.

THE COURT: Overruled. Go ahead.

Q. (By Mr. Coyle) Witness one, sir, this lady that you have told us about, said she identified him from the composite?

A. She identified him from the composite and she identified him from a photo line-up.

Q. Was she shown Mr. McVeigh in a live line-up?

A. Yes. Excuse me, I believe it is in the live line-up rather than the photo spread. She picked him out of the live line-up.

Q. Am I correct, sir, that this witness does not place Mr. McVeigh at the Murrah Building on the 19th day of April, 1995?

A. Yes, that's correct.

Q. Witness two, please, sir?

A. Witness two identified the composite as being identical to Mr. McVeigh; saw this individual leave the scene of the bomb blast shortly before the bomb went off.

Q. How long before the bomb went off, do you know, Agent?

A. Very shortly before.

Q. What does "very shortly" mean?

A. In fact the individual saw the 19 -- saw the Mercury, the yellow Mercury, speeding away from the location, obviously in an effort to avoid the bomb blast.

Q. Where did this witness see the yellow Mercury speeding away?

A. Over in the direction -- in the parking lot, in an area where the witness I had previously testified about said that the individual he identified as Mr. McVeigh was walking in a northerly direction towards.

Q. Where is that parking lot, sir?

A. Over on the north side of Fifth Street, close to the Journal Record Building.

Q. It is on the north side of Fifth Street near the Journal Record Building?

A. Yes.

Q. Is it that parking lot that we have seen in photographs where there are a lot of cars that were set on fire, I believe, were they not?

A. Yes.

Q. This witness, this particular witness, is it a male or female, sir?

A. Male.

Q. This particular male witness has indicated that he saw the -- a yellow Mercury speeding away?

A. Yes.

Q. Did this particular witness indicate to agents of the FBI how many persons were in the speeding yellow Mercury?

A. Two.

Q. Did this witness also identify the person that we know as number two, un-sub two at the scene?

MR. GARLAND: Objection. Un-sub two is not before the Court.

THE COURT: The question was, did he identify un-sub two?

MR. COYLE: Yes. The fact that everybody knows who that is. You understand who that is, do you not?

THE COURT: The question, he objected to it. The Court sustains that objection.

MR. COYLE: Yes, sir.

Q. Now, I think you told me that this particular -- do you know where this witness was located at the time that the witness made the observations that you have testified to?

A. Right there in that area of the Journal Record Building.

Q. The witness was inside the Journal Record Building?

A. I don't know if he was inside it or if he was standing outside of it. I believe he had observed it -- the yellow Mercury, and the individual resembling the composite drawing in the yellow Mercury before, at approximately 8:30 to 8:45, and then he went inside the building and came back out. That's when he observed the yellow Mercury with the two individuals in it speeding away from the bomb site location.

Q. Now, did this particular witness, you told us that he saw this composite photograph, did this particular witness view the photographic line-up that has been prepared by agents of the FBI?

A. I don't know if that individual has viewed the line-up or not. As I testified, that portion of the investigation is still ongoing. I don't know exactly who has viewed it and who hasn't at this point. We have been working long hours and that is an ongoing process. I don't know exactly who has seen the photo line-up. As of yesterday, this individual had not seen the photo line-up.

Q. Had this individual viewed Mr. McVeigh in the live line-up?

A. No.

Q. Did this witness see Mr. McVeigh, did they -- the persons that were listed or that they say were located in this yellow Mercury, did this witness see those persons anywhere other than on Fifth Street as they went east? Did they turn on Robinson or what did they do then?

A. The individual that the witness identified as resembling the composite number one, of un-sub number one, he observed that individual seated in the yellow Mercury when he was outside the building the first time. Then he went back inside the building. It was not until when he came back out the second time that he saw the yellow Mercury speeding away from the location.

Q. I assume speeding away on Fifth Street; is that correct?

A. Well, I think it is actually the alley area that would be immediately north of Fifth Street.

Q. Immediately north of Fifth Street is a parking lot there. Are you talking about the --

A. The north side of that parking lot.

Q. So the alley between the Journal Record Building and the parking lot? I'm sorry to interrupt you, I didn't mean to. Are you talking about that area, that alley?

A. I'm talking about the area on the north side of the parking lot that we have been speaking about.

Q. That's where you are telling the Court that the yellow Mercury was speeding through that particular alley?

A. Yes.

Q. Was it going east or west?

A. I believe east.

Q. Witness number three -- you said you had several -- number three.

A. There was another witness that advised that before -- approximately 20 minutes before the bomb went off, that this witness observed the Ryder Truck heading south on Robinson, being driven by an individual that resembles the individual pictured in the composite of un-sub one.

Q. Was this a male or female?

A. Female.

Q. Was this female in a vehicle at the time that she observed this Ryder Truck?

A. Yes.

Q. Was she heading in the same direction?

A. The Ryder Truck was heading towards her.

Q. So am I correct, Agent Hersley, that she said she observed the Ryder Truck proceeding south on Robinson Street?

A. Yes.

Q. At that time it was being driven by, you have told us, someone who resembles Government's Exhibit 2, correct?

A. Correct.

Q. Did you interview this particular witness?

A. No, I did not interview any of the witnesses.

Q. I'm sorry.

So in the interview of this witness you say she saw the truck coming toward her?

A. Yes.

Q. She was in the vehicle, then, proceeding in a northerly direction?

A. No, she was -- she was a meter maid that was at the vicinity of Robinson and Park Avenue. The Ryder Truck was approaching her. It was going at a very low rate of speed. She thought the person in the Ryder Truck was going to stop and ask her some questions.

Q. Was there -- go ahead.

A. However, as it approached that intersection, the driver turned west on Park Avenue and continued on and at that point the meter maid was behind the truck.

Q. Did she get a look at the license tag on that particular Ryder Truck?

A. I don't believe so.

Q. Did she view Mr. McVeigh or did she view the line-up that was conducted at the Oklahoma County detention facility on Saturday?

A. No.

Q. Has she looked at an FBI composite of photographs?

A. Yes. She looked at this composite and advised that this individual closely resembles the individual that she saw in the truck.

Q. Well, did you show her -- did you all put together some photographs, photographic line-up?

A. Photo spread, yes.

Q. Photo spread. In the photo spread that was prepared by the FBI, I assume they have been using the same one to show everybody, have they not? The same photo spread; they haven't been changing the pictures?

A. No, it is the same, the same line-up.

Q. In the photo spread, was this witness shown -- this female meter maid, was she shown the photo spread?

A. Not as of yesterday.

Q. When -- what time of day did she say that she saw this Ryder Truck with someone possibly resembling the composite?

A. Approximately 8:40 a.m.

Q. How many occupants were there in the vehicle, does she recall?

A. I believe she just spoke of the one individual that was driving the vehicle.

Q. Was she asked if there were two?

A. I'm not aware of that.

Q. Any other witnesses?

A. Yes.

Q. Can you tell me, please, sir?

A. Yes, there was another individual that observed the Ryder Truck on Harvey. I believe it was on Harvey or Hudson, also not too long before the actual bomb.

Q. Was this a male or a female, sir?

A. I believe a male. There may have been two individuals at that location. I know there was at least one male that observed the Ryder Truck and the occupants of the Ryder Truck. That person also advised that the individual in the truck closely resembled the individual depicted in composite one.

Q. Did you tell me he saw occupants of a Ryder Truck and there were more than one?

MR. GARLAND: Objection. The only person on trial at this hearing is Mr. McVeigh. It doesn't matter whether there were two or a hundred people in that truck as long as there was somebody representing Mr. McVeigh there. It is discovery and totally outside the scope of this hearing.

MR. COYLE: May I respond? I think it is important to see if we distinguish it as the same truck or not. I think it is very important to the credibility of the witnesses and credibility of the evidence and what they saw as to whether or not the next person saw three or five or six or --

THE COURT: Objection overruled. Go ahead.

A. This witness advised that there were two individuals in the truck. The individual resembling Mr. McVeigh was the driver.

Q. You said you thought this was either on Harvey or Hudson. What direction was the vehicle -- were you told the vehicle was traveling?

A. The vehicle was not traveling at that point. It had pulled into a business location there and asked for directions to Fifth and Harvey.

Q. What was the name of that business?

A. I don't recall the name of it.

Q. You say this was a male witness?

A. Yes.

Q. Has this witness viewed Mr. McVeigh in a photo spread?

A. Not yet.

Q. How about the line-up?

A. I'm not certain of the line-up.

Q. You are not certain if this was one of the witnesses in the line-up?

A. Yes, I'm not certain if this witness attended the line-up.

Q. Did not -- there were four different FBI agents at the line-up, that brought witnesses in to the line-up. Were you aware of that?

A. No.

Q. You mean none of these agents told you anything about the line-up that occurred on Saturday, and this is Thursday, the 27th of April?

A. That wasn't your question.

Q. Well, that's my next one. None of the agents told you?

A. I knew there was a line-up and I knew that individual witnesses at that line-up had identified Mr. McVeigh. I didn't know that each individual witness was brought in separately by a particular FBI agent. That was your question.

Q. The first witnesses who came to the line-up, were you advised that they did not identify Mr. McVeigh and could not pick him out?

A. I know that there were four witnesses at the line-up and I know that one witness identified Mr. McVeigh; one witness picked out two individuals pictured in the line-up and said that the individual they saw was one of those two pictures. One of those two pictures was Mr. McVeigh. And two other witnesses were unable to identify Mr. McVeigh from the line-up at that time.

Now, one of the witnesses later informed the FBI agent that he did not want to identify Mr. McVeigh because Mr. McVeigh was looking right at him, but that was the individual.

Q. The business on either Harvey or Hudson that you say the occupants, that they saw two people in the Ryder Truck and they asked for directions, who was the person who did the talking and asking for the directions according to the witness?

A. Mr. McVeigh, the driver of the vehicle.

Q. Anything else that Mr. McVeigh has alleged to have asked this witness at the business on Harvey or Hudson?

A. To my recollection, or what I was told by the agents was that it was for directions to Fifth and Harvey. There may have been something else asked, but I don't recall at this time.

Q. The next one, the next witness that you say who saw the person that closely resembles the person in the composite drawing?

A. On the day of the bombing?

Q. Well, was this on the day of the bombing or some other day?

A. No, these ones that we have been talking about, the last several were on the day of the bombing. There are other witnesses that have identified Mr. McVeigh on the day before the bombing.

Q. Where was he on the day before the bombing?

MR. GARLAND: Objection, this is wholly outside the scope of probable cause.

THE COURT: Sustained.

MR. COYLE: I will withdraw that.

Q. (By Mr. Coyle) So the female that you say, that you told me about before that saw him at 8:40, that was on the day of the bombing. These are all the day of the bombing.

The guy who saw him on Harvey at the business that you say talked to him?

A. The day of the bombing, shortly before the bombing.

Q. Approximately what time, can you tell me?

A. Between 8:30 and 9.

Q. In your review of the surveillance photos, did you find any surveillance photos of that parking lot across the street from the Murrah Building?

A. Yes.

Q. Okay.

A. You characterized that as my review of the photographs. I was shown those particular photographs by Agent Lamar.

Q. Have you been shown a photograph of that particular parking lot, sir, across the street from the Murrah Building that includes the speeding Mercury in the photograph?

A. We don't know for sure yet. Those photographs are not real clear. They are taken from a pretty good distance away. There appears to be a light-colored car in the very vicinity where this witness testifies -- or provides the information was speeding away from. We are not able to determine yet if that is in fact the yellow Mercury.

Q. Can you clearly tell in the photographs that you have seen or have you been advised that you can clearly tell in the film the time of the explosion?

A. I'm not sure I understand your question.

Q. Well, I don't know how to -- can you tell in the film or the photographs when the explosion occurs?

A. The film that I viewed was before the explosion. I did not view the entire film. The pictures that were shown to me were before the explosion.

Q. The pictures that you saw of that particular parking lot -- now I'm talking about the parking lot across the street from the Murrah Building --

A. Right.

Q. -- in a northerly direction, that parking lot, there is film of that parking lot prior to the time of the explosion?

A. Yes.

Q. Correct?

A. Yes.

Q. Is it time-stamped so that you can tell a particular time of day on the 19th of April that that camera is viewing, scanning that parking lot?

A. Yes.

Q. Can you tell me where that particular camera was located?

A. I believe that particular camera was located on the apartment building there that we have been speaking of.

Q. So those were some more pictures from the Regency?

A. Yes, those are the pictures from the Regency.

Q. So the camera from the Regency -- is this the camera at the very top of the Regency Tower?

A. I don't know the exact location of the camera, but it kind of scans that whole area there, is what has been represented to me. It scans in front of the Tower building and also over towards the parking lot.

Q. Any other witnesses who saw Mr. McVeigh, or someone resembling him or resembling the composite photograph on April 19th at or about the location of the Murrah Building?

A. There were other witnesses that were being talked to yesterday that we had just learned the identity of that advised that they had seen an individual that they believed resembled the composite. Those individuals -- arrangements were being made to talk to them as well, but I'm not aware of the results of those interviews.

Q. Well, if they saw them yesterday, they have seen a lot more than the composite, haven't they?

A. I haven't spoken with those individuals. I don't believe they have been interviewed by any agents, so I can't really address that; what they have seen and what they haven't.

Q. So you don't know that they have seen the picture of Mr. McVeigh on every cover of every newspaper, magazine, and television set in America, do you?

A. I don't know what they have seen.

Q. Is that something that the FBI has been very careful in asking them going over with them? . Yes.

Q. And you have discussed that with the agents and the importance an significance of the suggestiveness of the fact that his picture has been broadcast like that throughout our land; have you not?

A. I have not been the one to discuss that, but I know that is being discussed. I have spoken with a couple of the other agents about that, but another agent has been assigned to oversee that portion of the investigation.

Q. Who is that agent?

A. It would fall under the purview Rich Baker.

Q. Who are the two agents you discussed it with?

A. Two agents that are in here on a temporarily basis from San Antonio assisting us in the investigation, John Oza, and the second agent's name is Mike. I don't recall his last name at the current time.

Q. Now, other witnesses, sir, that you may have seen I am sorry that you may have interviewed or heard of interviews in connection with this?

MR. GARLAND: Objection, Your Honor that is a complete fishing expedition and has nothing to do with probable cause.

MR. COYLE: Well, that was a bad question. I was looking over and wanting a drink of water and asking a question.

THE COURT: Objection sustained and Counsel will rephrase the question.

MR. COYLE: I will get a drink and I phrase.

BY MR. COYLE:

Q. This would be number five. The witnesses you have told us about that identified a person closely resembled the composite or that was at or about a Ryder Truck or at or about the

A.P. Murrah Building that saw Mr. McVeigh or someone who resembled him April 19, 1995 prior to the hour of 9:03 a.m-- any other persons fit that description that you previously described to me in these proceedings?

A. Not that I recall now.

Q. Now, the persons who viewed Mr. McVeigh in the lineup, the first one was a young black man. Can you tell me who did not fit Mr. McVeigh is that the man that you now recanted that previously unidentification and has now told the agents that he in fact did identify him?

A. I am not aware of each person who participated each witness that participated in the line up by name. I am aware.

Q. I didn't ask his name?

A. You recall asking about a particular witness in what he identified and what he didn't identify and I am not able to tell which witness you are referring to by your description of him. I am not aware of the names of those witnesses and exact with what each one of them had seen. I am aware of what the overall results were of the four witnesses.

Q. But of the particular witnesses in the lineup, you have not been given information as to what those witnesses said they saw or where they saw the person accused in this case?

A. Yes, I have been given that information along with numerous other reports as part of the continuing investigation and --

Q. Okay, but particularly important to you is the agent in charge of the investigation of Mr. McVeigh are persons who identify him, that's particularly important, isn't it?

A. It will be, yes.

Q. So tell us of the persons in the line up, can you tell us anything about where they saw him reportedly?

A. Yes, at the federal building.

Q. All right, can you tell me what any of the male witnesses said where they saw him?

A. At the federal building.

Q. When? . Yes, on those dates leading up to the 19th, 17th and 18th of April, I believe.

Q. Are you familiar with a business by the name of Johnnie's?

A. There's a hamburger store, I guess they are called Johnnie's.

Q. You are not familiar with any Johnnie's that has any connection to this case?

A. No.

Q. Are you aware of what -- let me ask it this way. Are you aware of what the four witnesses who reviewed Mr. McVeigh in the lineup what the substance is of what they saw or told you hey saw that has connection with this case?

A. As I mentioned I did not interview any of these people myself so they did not tell me anything directly.

Q. I think you told us you haven't interviewed any of the people I have asked you about so far, correct?

A. That is correct.

Q. Okay.

A. They saw Mr. McVeigh, an individual resembling composite one at the federal building on particular days.

Q. They all saw him at the same time?

A. No.

Q. Can you tell me what one of the witnesses saw in particular?

A. Of those four witnesses that you are talking about that were shown, the lineup party in the lineup, the information that I have is that they saw Mr. McVeigh or an individual resembling the composite at the federal building on the 17th and 18th of April.

Q. Okay, so the four witnesses who saw Mr. McVeigh at the -- so the lineup that was conducted, none of those four witnesses saw Mr. McVeigh at or about the location of the Murrah Building on the date of April 19, 1995?

A. They may have, Mr. Coyle. I am not familiar with what each one of them saw and the particular date that they saw it on. I am aware of the witnesses that I have testified about about when they saw the individual resembling the composite and/or Mr. McVeigh shortly before the bombing occurred on April 19th.

Q. Maybe I have got myself to a semantical trap here and I want to make sure I ask this question artfully, and we have established a number of witnesses who you say saw someone at various locations about Oklahoma City in or about the Ryder Truck and so forth. Some of those witnesses that you have described to me earlier also and in the lineup; is that correct, sir?

A. Yes.

Q. Or also viewed the lineup. I am sorry. They didn't appear in it.

A. Yes.

Q. And particularly that's one lady that you told me was number one and we talked about as number one, she saw the composite and she saw him at the federal building about a week before was your testimony; do you remember that one?

A. Yes.

Q. And is that a black lady to your knowledge.

MR. GARLAND: Objection, Your Honor, we are talking about a witness who saw a witness before the date of the bombing and indication of the color of the witness is not relevant or even of the witness's identification relevant to probable cause.

THE COURT: This is a person observed before.

MR. COYLE: One he testified to at the time of the lineup. What I am trying to do -- I will strike that question. That's am good objection. I will go on.

THE COURT: Question is sustained.

BY MR. COYLE:

Q. She was at the lineup. The next one you told me about a male saw him at the scene you say shortly before and saw the yellow Mercury speeding away. Did that man view the lineup?

A. No.

Q. You told me about a female that observed a Ryder south on Robinson, this young lady I believe was the meter maid, and she viewed the lineup?

A. Not as of yesterday.

Q. Well, it happened on Saturday night, so if she didn't see it on Saturday night, she can't see it at any other time unless there is another lineup; am I correct?

A. Yeah, the lineup.

Q. Yeah.

A. The witnesses that you are referring to did not participate in the lineup. The witnesses that you are referring to now are not the ones that participated in the lineup. You are getting those confused with the witnesses that did.

Q. If I ask you if they were in a lineup, what does that mean to you?

A. You have been referring to a particular lineup.

Q. What does a lineup mean to you?

THE COURT: Counsel, let the witness answer the question. Please, go ahead.

BY MR. COYLE:

A. A line up to me means when you have if actual person present, you don't have pictures. I referred to it if you have pictures as a photo spread.

Q. Okay, well, that's been my questions to you. Were you confused by that? What the difference between a lineup and a photo spread?

A. No, I think you have been confused about it, though.

Q. I think so. That we can draw a distinction here. I am talking about the line up.

A. All right.

Q. Okay, did any of the agents of the FBI tell you anything about -- I am talking about those eight people standing there, right? You know what I am talking about?

A. The lineup.

Q. The eight people. Did any agents of the FBI tell you anything that those witnesses saw. Did they make you aware of what they say they saw at or about the Murrah Building or about Tim McVeigh or anything about this case?

A. Yes.

Q. Okay, can you tell us what that is, please, as to each witness individually?

A. One of the witnesses was able to positively identify Mr. McVeigh.

Q. From where?

A. From being at the Murrah Building, at the federal building.

Q. When?

A. I don't know the exact date. I believe that was on the 13th and then possibly again on 17th and the 18th of April.

Q. Oh, saw him there on several different occasions?

A. Yes.

Q. And that's the female witness; is that correct?

MR. GARLAND: Objection, it's now been clear that witness saw him before the bombing and therefore it's irrelevant to this hearing.

THE COURT: Is that correct?

MR. COYLE: I don't know, she may have seen him at other times I think it's very important as to the credibility as to all these. They didn't pick him out of the lineup. That he seems to me important.

THE COURT: Objection sustained.

BY MR. COYLE:

Q. As to number two, as to the other witness?

A. There was another witness that picked out two individuals and said that Mr. McVeigh, the individual that they saw most closely resembled those two individuals and Mr. McVeigh was one of those two individuals.

Q. Do you know where that individual said they saw the person that resembled Mr. McVeigh?

A. I believe at the federal building also.

Q. Do you know when?

A. I am not sure of the date.

Q. Do you know when?

A. No, I am not sure.

Q. They didn't tell you. The agents didn't tell you when they said they may have seen or this witness may have seen Mr. McVeigh?

A. No.

Q. And number three?

A. It was either on the 19TH or the days leading up to that. I mean we are talking about that time period in there. We are not talking about a lot of time before that. So it's in that time period. I do know that. I don't know the exact dates, though.

Q. Well, some of them you told me about you knew they were on the date of the 19th and that's particularly critical those hours before nine o'clock on the 19th; you will agree with me on that, won't you?

A. Yes, we are not talking about individuals who have participated in a lineup.

Q. Okay, number 3 in the lineup, four people. We have covered two?

A. There was another individual that I was told that was not able to or did not pick Mr. McVeigh out of the lineup, but later told the agent that he did recognize Mr. McVeigh, but did not want to identify him because Mr. McVeigh was looking right at him. . And that individual, where did he see Mr. McVeigh?

A. Again, I believe that all of these witnesses, the four that participated in the lineup observed Mr. McVeigh either at or in the federal building.

Q. When?

A. I am not sure.

Q. When on number three? The one that say changed his observations after the lineup?

A. I don't know the exact date.

Q. Do you know the time?

A. No, I don't.

Q. Do you know where this particular person was at the time that he later told the agent that he saw the accused?

A. I believe it was shortly after the lineup had occurred.

Q. Now, this particular witness, do you know where he was at the Murrah Building, where the witness was at the Murrah Building on whatever day you don't know that he says that he possibly saw Timothy McVeigh?

A. Well, no, I don't know.

Q. That wasn't important to you? . It's important to me. It's very important in time. It's not absolutely necessary for this hearing. There are other things.

Q. I don't think that is up to you. Isn't that up to the Judge, Agent?

A. What's important in the hearing.

Q. Isn't that up to the, Judge?

A. Did you not ask me the question?

THE COURT: Ask the question.

BY MR. COYLE:

Q. I asked you a simple question; don't you know?

THE COURT: Mr. Coyle, don't argue with the witness. Ask the question.

BY MR. COYLE:

Q. Don't you know where this witness was? Someone who claims he looks at Mr. McVeigh in a lineup and doesn't pick him out and tells an agent later that he saw him, and you are telling us here in Court that you don't know where this witness saw him?

A. That is correct.

Q. All right. The next one in the lineup?

A. The last one in the lineup did not pick out Mr. McVeigh. They advised that they had seen an individual resembling composite one at the federal building.

Q. Is that the Murrah Federal Building?

A. Yes.

Q. On the 19th?

A. I don't know the date, and the date either on the 19th or the days leading up to that date.

Q. Well, I thought Mr. McVeigh was at the Dreamland Motel?

A. He was.

Q. In Kansas?

A. He was.

Q. Okay.

A. On some of those days and some of those times.

Q. Have the agents of the FBI asked these witnesses at the Dreamland Motel, have they told them about the testimony of the people or the statements that the people made to the FBI that he was in Oklahoma City when other witnesses say he was somewhere in Kansas and Michigan, and other places across the country?

MR. GARLAND: Objection, there has been no testimony to that fact.

THE COURT: Sustained as to the phrase. Rephrase the question.

BY MR. COYLE:

Q. The last person in the line up, did that person -- do you know where that person was at or about the federal building at the time they purportedly saw Mr. McVeigh in some time the days leading up to explosion?

A. No, I do not.

Q. Did you ask?

A. No, I not.

Q. Okay, now, it talks about employees of the Dreamland Motel in Junction City, Kansas. I am on paragraph 8, now of the affidavit. You've reviewed Agent Gibbons' affidavit of probable cause; have you not?

A. Yes.

Q. It says employees of the Dreamland Motel in Junction City, Kansas advised FBI agents that an individual resembling composite number one ,that is, Government No. 2 there, had been a guest at the motel from April 14th through 18th. Do you know how many employees were interviewed?

A. At least three.

Q. Do you know the outcome of those interviews?

A. No, the outcome of one interview in particular where the manager of the Dreamland Motel was interviewed.

Q. Has the manager been shown the composite the photo spread or was she at the lineup?

A. The manager has been shown the photo spread.

Q. Was the manager shown the photo spread prior to the time that the affidavit was prepared in this case?

A. No.

Q. But since that time the manager has been shown the photo spread?

A. Yes.

Q. Did she identify Timothy McVeigh as being a guest in that motel on the dates April 14th through 18th?

A. Yes.

Q. Have handwriting comparisons been performed on any documents that he's signed?

A. I don't believe yet. That's still on-going.

Q. Has an analysis been prepared to your knowledge on any other forensic evidence at the motel?

A. No, I don't believe so. That is still part of the on-going investigation.

Q. Well, you mean you haven't been to the motel and gathered it or you are going to gather it and you are going to look at something?

A. It has been gathered from the motel and been sent back to the FBI Laboratory in Washington, D.C.

Q. Can you tell me what was gathered at the motel?

MR. GARLAND: Objection, Your Honor, once again this is discovery. It is unrelated to the probable cause hearing.

THE COURT: How does this relate to probable cause?

MR. COYLE: Sir?

THE COURT: How does this relate?

MR. COYLE: It goes to whether he was at the Dreamland Motel in Junction City, Kansas, what the evidence they have to substantiate that. What I have had -- what I asked him is what evidence has been sent to the lab for comparison. That's all I need to know in that regard.

THE COURT: Objection will be overruled go ahead and answer.

BY MR. COYLE:

A. That investigation is being conducted in Junction City, Kansas and the evidence I believe is being sent or has been sent direct to the FBI Laboratory in Washington, D.C., and I am not aware of the contents of all the information or items that may have been taken from that location.

Q. Do they tell you, any of them, what they might have taken or anything they found that they wanted tested?

A. I know that the registration card in Tim McVeigh's name was at that location. They obtained that and that has also been forwarded.

Q. Anything else that you know of?

A. No, I don't know the contents of what was sent back.

Q. Let me ask you about the Elliott's Body Shop in Junction City, Kansas. Are you familiar, sir, with any of the interviews that have been conducted with anyone employed at the Elliott's Body Shop?

A. Yeah.

Q. Was it a male or female?

A. There has been --

MR. GARLAND: Your Honor, I object to the sex of the people. It is not relevant to probable cause.

THE COURT: Overruled.

BY MR. COYLE:

A. There was one female and two males interviewed that I know of at that location.

Q. Did the female identify Timothy McVeigh?

A. The female advised that participated in the composite that was drawn of the individual that rented the Ryder Truck on April 17th.

Q. I think my question to you was did the female witness identify Timothy McVeigh?

A. The female witness was not shown a photo spread nor did she participate in a lineup. She did advise that the composite that was drawn up closely resembles the individual that rented the truck.

Q. Have you been made aware, sir, that whether or not she has called agents of the FBI or just the local police or anybody and said I have seen his picture in the paper or on television or somewhere and that's him. That's the guy that rented the truck too. Have you heard any such statements?

A. No, I have not.

Q. Has anyone from the FBI talked to anyone that saw the person who rented the truck to your knowledge?

A. I don't know, not to my knowledge.

Q. You are the guy that would know. You are working on the investigation of Timothy McVeigh.

MR. GARLAND: Objection, Your Honor is that a statement or question?

THE COURT: That will be stricken from the record go ahead.

BY MR. COYLE:

Q. Has the witness there at the Ryder Truck rental there in Kansas specifically the Elliott's Body Shop in Junction City, Kansas -- did they see Mr. Timothy McVeigh or someone that resembled the composite?

A. Yes.

Q. The first male, did they see the composite or did they assist in its preparation?

A. Both.

Q. What was that particular persons involvement with Mr. -- or with the person in the composite in the rental of the truck?

A. When the person that rented the truck was in the Elliott's Body Shop on the 17th, this person was also in the body shop and in a position to observe that individual that was renting the truck.

Q. So this is not an employee of the body shop, but it's another patron or someone who was in there visiting?

A. This is another employee of the shop.

Q. Okay, and was in a position to look at the man that rented the truck?

A. Yes.

Q. And was this male involved in the rental of the truck, involved in the specific conversations with a person who rented the truck?

A. No. . Did this person overhear conversations to your knowledge with the person that rented the truck?

A. Yes, I believe so.

Q. Was the truck rented by a male or a female?

A. By a male.

Q. Is that the male that you are telling me about now?

A. Yes, that he used the name Bob Kling.

Q. Okay, that was a bad question, thank you. Was the person who was employed by Elliott's Body Shop in Junction City, Kansas that rented the truck to the person who -- who is shown in the composite as Government Exhibit No. 2 was that person the employee of the body shop a male or a female?

A. A male.

Q. And that person, one who did the renting, is that the male that you have been telling me about -- you've just told me?

A. I am not sure of the question that you said I have been telling you about.

Q. Okay, let me make it clear. You told me there were three people there at the body shop in Junction City, Kansas, right?

A. Three employees.

Q. Three employees. We have been over one, that female. Did the female employee of Elliott's Body Shop in Junction City, Kansas rent the truck to the person in Government Exhibit No. 2?

A. Yeah.

Q. Was that the person who filled out the paperwork?

A. Yes.

Q. Was that the female employee?

A. Yes.

Q. And the next male you told me about then you told me about a male who overheard some conversation, do you know what conversation that male overheard?

A. Overheard the conversations as the rental was taking place that person was seated in that same area where the actual rental was taking place.

Q. What did that agent tell agents of the FBI that he overheard?

A. I am not aware of what he said he overheard. I am aware that he said he was able to see the individual and that the individual was the -- that the composite that was drawn was a fair and representative likeness of that individual.

Q. Do you know what the individual who -- who supposedly rented the truck, the one in the composite, do you know what he was wearing -- what he was said to have been wearing that day?

A. No, I do not.

Q. Okay, do you know what the female said that the person who rented the truck, not the one employed there, the one in the composite was wearing on that date? Now, the third witness that you have described for us, the male there at Elliott's Body Shop, employee in Junction City, Kansas, did this person participate in the preparation of the composite?

A. Yes, to some extent?

Q. Now, how did this -- were you there when they did the composite?

A. No.

Q. What was this person's participation in the composite?

A. To provide description of information regarding individual that he had observed renting the Ryder Truck and the two provided information that the composite fairly represented the individual that rented the truck.

Q. Can you tell me what his involvement was in the rental of the truck?

A. I believe he was just there. He is the owner of the business, I believe.

Q. Do you know where he was in location to the person in the composite at the time of the rental of the truck?

A. Not exactly, but I believe he was in close vicinity. I know that this individual asked to use the phone in there. This male that we are talking about now is the one that said that he could.

Q. Okay, has this man been shown a photo line up?

A. No.

Q. I mean a photo spread. Has this man viewed Mr. McVeigh in a lineup?

A. No.

Q. Has he called anybody anyone of the males, the owner or the other fellow there that was employed, has either one of those called the FBI and said we have seen this man on television, we have seen him in any of a thousand newspapers across the country and that's the man we have rented the truck to?

A. No, not to my knowledge.

Q. Don't you think you would know that?

A. I don't know. There are also others conducting investigation very rapidly. If that had happened several days ago, the answer would be likely yes. If it happened within the last day or two, I don't know.

Q. You really don't think they would let you know?

A. I think they will let me know. They will eventually let me know

MR. COYLE: Judge, could we take a short break?

THE COURT: How many longer do you anticipate?

MR. COYLE: I don't think too much longer. I will gather my thoughts and try to conclude.

THE COURT: We will take a recess at this time and the marshals may remove the Defendant.

(AFTER THE RECESS, THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

THE COURT: Let the record show that counsel are present and the Defendant is present. We are on cross-examination. You may proceed.

Q. It says, Agent Hersley, in the Affidavit prepared by Agent Gibbons in connection with this case that on April 20th, the rental agent was recontacted and assisted in the creation of composite drawings. It says "the rental agent." Does that mean all of the agents, all of the rental agents, all three of the people you told us about?

A. My understanding is the individual that was in a position to watch the individual that was renting the truck on that day assisted primarily in compiling the composite. And the other individuals, the other two employees, also assisted to some extent.

Q. It says in the paragraph of the Affidavit by Agent Gibbons that a fair and accurate depiction of the individuals who rented the truck; is that correct?

A. There were two composites drawn, one of each individual that was in there that day.

Q. The other composite, did he do the renting of the truck?

A. No.

Q. So the person -- you have been advised that the person who is identified in Government's Exhibit 2 is the person who gave the identification and rented the truck?

A. Yes.

Q. What is your understanding of what the other individual did during the time that the individual in Government's Exhibit 2 was renting the truck?

A. I believe he is the one that brought the individual pictured in composite one to the rental location and was there while the individual pictured in composite one was getting the paperwork completed and actually renting the truck.

Q. Have you been made aware of what he was doing at the time that he rented the truck?

A. I believe he was just standing in the office there.

Q. Was he standing close and assisting in the rental? Did he give money, did he do anything active that you have been advised during that time?

A. I don't believe so, no.

Q. Now, you have testified here in court earlier about some calls made from Room 25. Is Room 25 the one that was rented by the person that has been identified in composite one?

A. Room 25 was rented by Mr. McVeigh.

Q. It was rented by a Mr. Tim McVeigh, correct?

A. Yes.

Q. At the Dreamland Motel?

A. That's correct.

Q. You said that certain calls were made from that room?

A. Yes.

Q. You said something about a call to a restaurant or can you explain that to me? I didn't understand that.

A. Yes, there was a call from Room 25 to a local restaurant in Junction City. The caller placed an order for food to go and gave the Room 25 and the phone number at the Dreamland Hotel and used the name Kling.

Q. Was that an order to go or a delivery?

A. Delivery order, excuse me.

Q. Delivery order?

A. Yes.

Q. In other words, he called the place. Was it a pizza restaurant?

A. No, it was a Chinese food restaurant.

Q. Was the Chinese food then delivered to Room 25 of the Dreamland Motel?

A. Yes.

Q. That was on April 15, which would have been Saturday, I believe, right?

A. That's correct.

Q. Was that food delivered?

A. Yes.

Q. I believe you told us that that person -- I believe you told us on direct, these are some of my notes, I'm not sure if I asked you this -- after being shown a photo spread that contained the accused in this case, the young man who brought the Chinese food was unable to identify the accused?

A. That's correct.

Q. Any other telephone calls that were made from this room that there is a record of?

MR. GARLAND: Objection, Your Honor. This is again purely discovery and unrelated to probable cause.

THE COURT: Overruled.

Q. Any other telephone calls?

A. Yes.

Q. Okay. Can you tell me where those were made to, sir?

A. Yes, they were made to Terry Nichols.

Q. Where was Terry Nichols at the time the calls were made? Where were the calls made to, someplace in Michigan?

MR. GARLAND: Your Honor --

MR. COYLE: I'm sorry, I interrupted you.

MR. GARLAND: I'm sorry. Well, we are both sorry.

The location to which the calls were made is again unrelated to probable cause. The discovery of this would interfere with the rest of the investigation.

THE COURT: As to the location, the objection is sustained.

Q. (By Mr. Coyle) Terry Nichols, anyone else, sir?

A. Those are the ones that I recall.

Q. Were the calls to Terry Nichols?

A. To Terry Nichols' residence in Herington.

Q. Any other calls that you recall that were made from Room 25 at the Dreamland Motel from the dates of April 14th through 18th, '95?

A. Not that I recall now. Those are the ones that I recall.

Q. Were the calls charged to the room?

MR. GARLAND: Objection, Your Honor. Once again whoever it was charged to is not relevant to probable cause. These are leads being pursued in an ongoing investigation.

MR. COYLE: There is no way that us knowing whether they were charged to the room or not is going to jeopardize any ongoing investigation.

THE COURT: Overruled.

Q. (By Mr. Coyle) Were they charged to the room or were they put on a telephone credit card or how were those billed, Agent Hersley?

A. The call to the Chinese food restaurant was a local call. The other calls were the -- to a credit card, debit card.

Q. Who --

A. Through the debit card. A credit card, debit card was used to make those calls.

Q. It was a debit card?

A. Yes.

Q. As opposed to a credit card?

A. I believe so, yes.

Q. You understand the distinction of what we are talking about?

A. Yes.

Q. Do you know whose debit card it was? Have you been advised?

A. It is in the name of Bridges, I believe.

Q. Have you found the person Bridges who is the owner of the debit card?

MR. GARLAND: Objection, Your Honor.

THE COURT: Sustained.

Q. Now is there a list of all calls made, whether or not they were local calls there in the Ft. Riley-Junction City area or they were long distance calls? Do you have a record of all of those calls?

A. From the Dreamland Hotel?

Q. Yes?

A. Yes.

Q. Is there a call among those to Elliott's Body Shop in Junction City?

A. No.

Q. How many employees of the Dreamland Motel in Junction City, Kansas have been interviewed that you are aware of?

A. Three.

Q. Are they all males or all females?

A. I'm aware of the identity of the manager, who is a female. I believe that at least one of the other individuals that was interviewed is also female. I'm not aware of the identity of the third person.

Q. Has the manager female identified Mr. McVeigh?

A. Yes.

Q. Has she identified Mr. McVeigh from what you say is the composite or a photo spread or a live line-up or just from TV and newspapers and radio?

A. She positively identified Mr. McVeigh through the photo spread.

Q. When was she shown that photo spread?

A. Within the last two days.

Q. After the time that his picture has been broadcast all over America?

A. Yes.

Q. The other female there at the Dreamland Motel, how did she identify Mr. McVeigh, if she did?

A. From the composite.

Q. Has she been shown a photo spread?

A. No.

Q. When was she shown the composite?

A. Several days ago. She was shown the composite and she identified the composite as very strongly resembling the individual that was staying in Room 25, Mr. McVeigh.

Q. Do all of these people use the word "very strongly resembling" or do they use other words to describe that, don't they?

A. The employees at the Dreamland, that is the way they described it.

Q. So the composite to the second female employee was shown after the photos were available several days ago?

A. There is not a second composite of a female employee.

Q. I'm sorry, okay. The second employee, was that a female or a male?

A. Female.

Q. The first one we talked about is the manager. She was shown the photo spread after Mr. McVeigh's photograph has been published around the world, correct?

A. Correct.

Q. Then there is a second employee there, male or female?

A. Female.

Q. Now the female employee, not the manager, what sort of composite photo spread or line-up of what has she been shown?

A. The composite.

Q. Only the composite?

A. Yes.

Q. That was several days ago?

A. Yes.

Q. Can you tell me the reason or the strategy behind not showing her the photo spread?

MR. GARLAND: Objection to the characterization.

THE COURT: Sustained.

Q. Do you know why she was not shown the photo spread? Because it was available at that time, am I correct?

A. No, I do not know.

Q. The manager, is she the one that rented the room to the person who identified himself as Tim McVeigh and checked in as Tim McVeigh; is that correct?

A. Yes.

Q. Is she the person who is alleged to have rented the room?

A. Yes, she rented the room to Mr. McVeigh.

Q. To a Mr. Tim McVeigh, correct?

A. Yes.

Q. The other female employee, can you tell me her involvement?

A. "Her involvement," I'm not sure what you mean by your question.

Q. Well, okay. The second female employee, who is not the manager of the Dreamland Motel, what has she told or in what manner has she observed the person she identified from a composite as number one in Government's Exhibit 2 in these proceedings, what she saw him do during the time that he was a guest of that motel?

A. She just saw him at the hotel. On one particular occasion she was going to go into the room, thinking that Mr. McVeigh had left the hotel. When she started to open the door, Mr. McVeigh did so and she observed him on that occasion.

Q. He opened the door for her --

A. Yes.

Q. -- as she came to the door. Did she knock on the door?

A. I don't know. I believe she thought he was gone. She was going to clean the room. She was a maid.

Q. Now, was there -- did she see him on any other occasions that you are aware of?

A. I'm not aware of how many occasions that she actually observed him at the hotel.

Q. You told us, I believe earlier, that there were three and there is also a male?

A. No, I didn't say -- I said that I didn't know the identity of the third one.

Q. You don't know the sex or the identity of the third one, but that's another witness from the Dreamland, am I correct?

A. Right.

Q. Is that an employee of the Dreamland?

A. I believe so, yes.

Q. Tell me, please, sir, how that person at the Dreamland, who was employed by the Dreamland, observed the person who identified himself as Tim McVeigh?

A. This person, to my knowledge, observed the individual who identified himself as Mr. McVeigh at the Dreamland Hotel. I don't know whether that was in the office or whether that was out in the area where the rooms are.

Q. Now, you told us that persons -- a person at the Dreamland Motel saw Mr. McVeigh, or saw someone who resembled the photograph -- or I'm sorry, the composite, which is Government's Exhibit 2 in this case, arrive at Dreamland in a Ryder Truck?

A. No. My testimony was that that person observed Mr. McVeigh arrive at the motel in the truck. That person has positively identified Mr. McVeigh from the photo spread.

Q. From the photo spread.

Is that one of these employees?

A. That's the person that rented the room to Mr. McVeigh.

Q. Who is the female manager, am I correct, sir?

A. Yes.

Q. When did she allegedly see Mr. McVeigh arrive at the Dreamland Motel in a Ryder Truck?

A. On April 17th of this year.

Q. What time?

A. Sometime in the afternoon to early evening hours. Late afternoon to early evening.

Q. Was there anyone else in the truck with him --

A. No.

Q. -- at the time she saw him?

A. No.

Q. Now, you say that someone also saw Mr. McVeigh at 4 a.m. in a Ryder Truck, correct?

A. Yes. The manager said that she observed Mr. McVeigh in the same Ryder Truck at 4 a.m. that next morning.

Q. You mean he was driving in it on the 18th at 4 a.m. in the morning?

A. No, he was sitting in the truck with the light on in the passenger compartment, seated in the driver's seat. She said he appeared to be studying something, possibly looking at a map.

Q. She saw a map?

A. No. She said possibly. He was looking at something. He had the light on inside the passenger compartment inside the Ryder Truck.

Q. How long did she see him?

A. She just looked out the window and noticed he was in there.

Q. Was she sure that it was Mr. McVeigh?

A. Yes.

Q. Did she get the tag of that truck?

A. No.

Q. What time did the truck leave the motel?

A. She didn't say exactly. She doesn't know exactly when it left. She looked out the window again around 5 o'clock and it was gone.

Q. At 5 a.m. in the morning?

A. Yes.

Q. When did Mr. McVeigh check out?

A. She did not see him again after that.

Q. Well, is that 5 a.m. on the 17th?

A. No, I think you are getting confused on that. I think it is --

Q. I don't know. I didn't ask.

A. My testimony was it was on the 18th.

Q. 18th?

A. Yes.

Q. Okay. We want to be accurate on these things, don't we?

MR. GARLAND: Objection.

THE COURT: Sustained.

Q. (By Mr. Coyle) So is it your testimony from any the employees of the Dreamland that Mr. McVeigh -- from interviews of all of them, that Mr. McVeigh did not actually physically check out of the Dreamland Motel?

A. I believe that's correct. He paid for the room in advance for four days; argued with the manager about the rate and paid the entire bill up front. He then just left sometime between four and five on the morning of the 18th.

Q. Are you aware of any evidence of the whereabouts of the Ryder Truck between that time that you told us on the 18th at five o'clock in the morning, O500 -- so we won't be confused -- and the time that you say persons saw it in the downtown area of Oklahoma City on the 19th?

MR. GARLAND: Objection. Discovery; not probable cause.

MR. COYLE: This goes directly to everything in the Affidavit between --

THE COURT: Overruled.

MR. COYLE: -- that time.

A. No.

Q. You told me something about the pistol that Mr. McVeigh was alleged to have had on his person at the time that he was placed under arrest by a trooper of the Oklahoma Highway Patrol. You said something about a certain kind of a bullet. What kind of bullet was that?

A. It is referred to in the law enforcement circles as a cop-killer bullet.

Q. Well, he didn't kill the cop that walked up to the car, did he?

A. No.

Q. In fact, isn't it your information, Agent Hersley, that he told the cop that walked up to the car, instead of killing him with a cop-killer bullet, he said, "I have a gun?"

A. That was after the officer had already observed it.

Q. Oh.

So is it your testimony, then, that the highway patrolman drew-down on this young man, then? He saw the gun and drew-down on him at that point?

MR. GARLAND: Objection. We are talking about something occurring after the bombing.

THE COURT: I sustain the objection.

MR. COYLE: We have the highway patrolman here, so we'll -- I was just trying to save some time with that.

Q. (By Mr. Coyle) In fact, part of your testimony about this cop-killer bullet business, is there any evidence that Mr. McVeigh killed a cop on that day? Is there any evidence of that?

A. Yes.

Q. That he is a cop killer?

A. Yes.

Q. What is that?

A. The evidence points toward the fact that he blew up several Federal law enforcement officers in the Federal Building that morning.

Q. With this Glock .45?

A. No, with a massive bomb.

Q. With these cop-killer bullets, is what I'm asking. With the cop-killer bullets?

A. What is your question?

Q. With the cop-killer bullets? Any evidence that he had shot anybody with the cop-killer bullets?

A. No.

Q. Is there any evidence that Mr. McVeigh -- that this young man had ever been arrested at anytime in his life prior to the time he was arrested by the Highway Patrol in Oklahoma?

A. No.

Q. Have you heard of any statements that have been made by the accused in this case to any agents in law enforcement?

A. No, I don't believe so.

Q. So he hasn't made any statements to anyone in law enforcement in connection with any of the events in this case?

A. He provided some descriptive background to law enforcement at the time he was arrested, but no further information, I don't believe.

Q. Tell me about the descriptive background that you tell us that he provided.

MR. GARLAND: Objection. This is long after the bombing at this point. It has nothing to do with probable cause here.

THE COURT: It might have something to do --

MR. COYLE: It is a statement of the accused.

THE COURT: Overruled.

A. Just information regarding his name and date of birth and physical description.

Q. He gave them his name?

A. He also, I believe, made some statements to the officer that stopped him in regard to the Glock .45.

Q. What did he say about the Glock .45?

A. I believe he recited the serial number of it to the officer.

Q. Now, the vehicle that we have heard described as the yellow Mercury, are you familiar with that vehicle?

A. Yes.

Q. You know which one we are talking about, the one that Mr. McVeigh was allegedly in?

A. He was arrested in that vehicle.

Q. You saw him arrested in that vehicle?

A. No.

Q. Okay. Where was that vehicle located when the FBI secured that vehicle?

A. Up close to Perry, Oklahoma.

Q. When was it that the FBI got the vehicle? Had it been towed in and impounded?

MR. GARLAND: Objection, this is purely discovery. It has nothing to do with probable cause.

THE COURT: Yes.

MR. COYLE: Okay.

Q. That's the car that he was arrested in, am I correct?

A. Yes.

Q. At the time of his arrest, do you know whether or not that car was towed by the Highway Patrol to a secure location or whether or not it was left on the side of the road?

MR. GARLAND: Objection, this is discovery.

MR. COYLE: That's right in the middle of the stuff that he testified to when they were picked up.

MR. GARLAND: He didn't testify about anything --

THE COURT: Go ahead to the next question, Counsel.

Q. (By Mr. Coyle) Agent Hersley, tell us about any evidence in the possession of the FBI that Timothy McVeigh actually detonated the bomb that exploded in front of the Murrah Building, that he detonated the bomb?

A. The results of the test that came back from the FBI laboratory that Mr. McVeigh's shirt had residue of PTEN on it indicates that Mr. McVeigh was likely in the vicinity of the Ryder Truck at the time the time fuse, or similar type object to ignite the blast, was activated.

Q. Tell me what PETN (sic), what did you say that was?

A. It is an explosive that is used in -- commonly used in detonating cord.

Q. Where was it found on his shirt?

A. I'm not sure of the exact area of his shirt.

Q. I think you -- didn't you say that word before? I mean, it was a series. I couldn't write that fast. The chemical name for this PTND (sic)?

A. It is penta erythrite tetral nitrate.

Q. When you say it is commonly found in detonating cord?

A. Yes.

Q. Have you determined other uses for it?

A. No, I have not.

Q. Have you asked?

A. Aside from that it is very commonly found in detonating cord, I have not asked that, no.

MR. COYLE: May I have a moment with my colleagues?

THE COURT: Yes.

(Whereupon, an off-the-record discussion was had between Defense counsel and the Defendant. Thereafter:)

Q. Can you tell us, Agent Hersley, if the FBI or anyone else in law enforcement is aware of any statements of other persons that implicate the accused Timothy McVeigh on the bombing of the federal building?

MR. GARLAND: Objection, Your Honor, only after indictment, they would be entitled to that Kind of information. Under the James Act, they would not be entitled to such information until the witnesses testified at trial. This is purely and only discovery that is barred by the Federal Rules of Criminal Procedure.

THE COURT: Sustained.

BY MR. COYLE:

Q. Who did you talk to about the PTND?

A. Rick Hahn.

Q. Rick Hahn was the guy on that too?

A. Yes.

Q. When did Rick Hahn tell you that?

A. Within the last two to three days. I also spoke with Jim Norman another agent in our office about that.

Q. What is Jim Norman's specialty?

A. Bombing matters.

Q. He is another one of these bomb guys?

A. He is a bombs explosives guy.

Q. Was he making up the test on the shirt that was allegedly worn by Mr. McVeigh?

A. Did Agent Norman do it.

Q. Yes?

A. No, that was done by our laboratory back in Washington.

MR. COYLE: I believe that's all. Thank you, sir.

THE COURT: Anything further of this witness?

MR. GARLAND: No further questions.

THE COURT: Any other further evidence on behalf of the United States?

MR. GARLAND: No.

THE COURT: The United States rest?

MR. GARLAND: Yes, Your Honor.

THE COURT: Any others on behalf of the Defendant?

MR. COYLE: May I have a moment, Judge?

THE COURT: Yes.

MR. COYLE: Your Honor, the accused would call the trooper of the highway patrol identified as Charles Hanger. We would ask, I believe he is here. He has been subpoena duces tecum.

MR. GARLAND: Your Honor, the government moved to quash that. I would like to have a moment to argue.

THE COURT: Very well.

MR. GARLAND: The government has filed a copy of its motion to quash with the Court and has delivered copies to the defense attorney. The only purpose of preliminary hearing --

THE COURT: Excuse me I don't believe I have your motion.

MR. GARLAND: I don't have a copy.

THE COURT: Here is a copy.

MR. GARLAND: Your Honor, actually I would encourage the Court to take another brief break in order to read the paper.

THE COURT: Go ahead make your statement and I will read as you go on.

MR. GARLAND: The purpose of the preliminary hearing and only purpose under the Tenth Circuit rule under the Robbins case is to determine probable cause.

Discovery is emphatically not a purpose. Other evidence which might be relevant for suppression is not the purpose of this hearing. They, therefore, cannot subpoena a witness, particularly, a government witness which is who this trooper is unless they can show that that witness has evidence that would negate the existence of probable cause. You see the citation the Second Circuit Cirtina.

Following that citation are two district court cases, one in Tennessee and one in Eastern District of Pennsylvania affirmed by the Third Circuit which rejected attempts by Defendant to call a government witness in its case in chief in a preliminary examination.

Even in the most liberal of all circuits which happens to be the circuit from which I come, the D.C, that Court has held unless the Defendant is able to make a plausible showing that the witness would contribute significantly to the accuracy of the probable cause determination, they may not call him.

This witness did not see the bombing. He did not see anything other than the arrest. He cannot contribute to the question of probable cause in a way that would assist the Defendant. For that reason, only purpose for bringing him here is to obtain discovery of that witness and we urge that he not be permitted to testify at this hearing.

THE COURT: Defendant?

MS. OTTO: Your Honor, if I may, I believe

THE COURT: If you would like to stand there, that's fine.

MS. OTTO: I believe I was the attorney who prepared the subpoena application request and submitted it to the Court so most proper for me to respond to this.

As the Court is aware, Rule 5.1 of the Federal Rules Of Criminal Procedure 5.1A expressly provides the Defendant may cross-examine adverse witnesses and may introduce evidence. Under the subpoena power of the Court, that is defined in rule 17, Mr. McVeigh as an indigent defendant may ask the Court to cause a subpoena to be issued for a witness. That is exactly what we have done.

The fact that the government wants to characterize a particular person as a quote unquote government witness, does not place him outside the purview of the Court's subpoena power.

As I understand the government's contention during this preliminary hearing, they are alleging that Mr. McVeigh detonated a bomb that exploded in front of the

A.P. Murrah Building approximately 9:03 in the morning. I think the circumstances surrounding the arrest of Mr. McVeigh on Interstate 35 just outside Perry, Oklahoma is highly relevant to the issue of probable cause.

Mr. McVeigh's demeanor at the time, the government has introduced evidence attempting to establish that Mr. McVeigh had a loaded firearm on his person at the time of his arrest, his interaction with the police officer, his general presentation of himself, his reaction to the stop and the arrest and the circumstances surrounding the arrest are highly relevant to the issue of whether or not Mr. McVeigh was the person who detonated the bomb.

I have not heard any hearsay evidence or any direct evidence from any government witness establishing that there is proof, a witness, Mr. McVeigh detonated the bomb. The only thing I heard was listening fairly closely for this was a laboratory test that indicated the presence have some substance on his shirt and from that we are deducing that he was in contact I guess with det cord.

Again, we have no witnesses. None of these various witnesses identified and unidentified by the government have established that they saw Mr. McVeigh detonate the bomb. That's all there is to it.

They allegedly saw him in the area, and we can argue about the eyewitness identification during allocution, but there is no direct evidence of this.

I think the evidence about the circumstances surrounding the arrest is highly material. Certainly the government in ever case that I have ever had with them always makes a great deal about the nervousness of a suspect who is stopped, his general demeanor, his or her actions during the arrest, that's always intrinsic in the government case.

Lots of people looking guilty and get the stopped. I think it's very important that we hear what Trooper Hanger has to say about this traffic stop and about Mr. McVeigh's interaction with him at the time.

It is very close in time to the event in downtown Oklahoma City. It isn't something where he stopped three days later. This is an hour and some minutes after the explosion in downtown Oklahoma City. It's part and parcel of it, relevant to the issue of probable cause, and that's why we asked the Court to issue the subpoena in the first place.

THE COURT: Would it be the Court's understanding that the trooper's testimony would essentially follow what is stated in paragraph 13?

MS. OTTO: Paragraph 13 of the affidavit?

THE COURT: I am sorry of the affidavit.

MS. OTTO: Well, that is certainly part of it.

THE COURT: What additional evidence?

MS. OTTO: The demeanor of Mr. McVeigh. Agent Hersley testified that its his understanding that Mr. McVeigh talks about the weapon only after the trooper sees it. That's not in paragraph 13. There is some additional information that is contained in paragraph 13 and I don't think this witness is going to take all that long anyway.

THE COURT: Does the government disagree with anything stated in paragraph 13?

MR. GARLAND: Your Honor, I don't think that the demeanor of the witness is relevant to the negation of probable cause. That is even if a witness's demeanor were perfectly normal in every other way it wouldn't make any difference to the probable cause determination.

THE COURT: Do you disagree with Agent Hersley?

MR. GARLAND: With what's in 13?

THE COURT: Do you disagree with Agent Hersley's testimony about the witness at the time -- the Defendant.

MR. GARLAND: No, I certainly do not disagree.

THE COURT: Do you disagree with statements made in paragraph 13 of the affidavit and part of complaint.

MR. GARLAND: No, Your Honor, I do not.

MS. OTTO: This is the arrest that starts the whole chain of events that causes Mr. McVeigh to be present in the courtroom. I assumed it was relevant because they put it paragraph 13 of the affidavit.

THE COURT: I don't believe there is any dispute about that. Why do we need a witness?

MS. OTTO: There are facts outside 13.

THE COURT: What other facts is he going to testify?

MS. OTTO: There is nothing about Mr. McVeigh's demeanor.

THE COURT: We have the agent's testimony there -- Agent Hersley.

MS. OTTO: I do dispute it. I am sorry I do dispute Agent Hersley.

THE COURT: What do you dispute about Agent Hersley's testimony?

MS. OTTO: That Mr. McVeigh doesn't have a conversation with Trooper Hanger about the circumstances of the firearm.

THE COURT: Your evidence is going to be that the trooper will testify something contrary to what Agent Hersley said about the weapon?

MS. OTTO: He is going to testify in amplification and it may indeed contradict. I haven't had an opportunity to talk to Trooper Hanger to have an interview with him prior to this although I did read his interview with the newspaper.

THE COURT: I don't think we have much dispute as far as the Court is concerned it is very peripheral concerns relating to the arrest and maybe some testified that has some bearing on the demeanor of the witness that will might be relevant but it's a periphery of probable cause I believe. However, you desire to call Trooper Hanger, you may call him.

MS. OTTO: Thank you.

MR. COYLE: We do desire to call him.

THE COURT: Much of this wi has been stipulated perhaps this testimony can be abbreviated.

MS. OTTO: Yes, Your Honor.

MR. COYLE: It's not going to be very windy. I am tired. We would call Trooper Hanger.

MR. GARLAND: I am sorry to interrupt. With respect to the documents which they have also subpoenaed I would also like to be heard as to why they should not be --

THE COURT: Are we going to introduce some documents?

MR. COYLE: I don't know. We have subpoenaed along with the trooper. We issued subpoena duces tecum to get all of the documents relative to the arrest whether or not they are consistent with the affidavit of probable cause and his testimony, I think is important. I assume that he prepared in somewhat immediately after the events and all those things are important and I think we are entitled to them.

THE COURT: You are entitled to them eventually. The question is whether or not now.

MR. COYLE: We would like to be able to review prior to the time that we put the trooper on the stand more look at them concurrent with the time we put him on. I don't seek to delay. I seek to see what it is that the trooper has to say particularly about the demeanor and so forth of this young man. That's what I wanted to go through. Not all --

THE COURT: I am going to allow him to testify about the demeanor. I think the other matters are going to be developed later in this case and wouldn't be critical for probable cause concerning, but I am allowing you to do it to try to permit you to get in all the evidence that might have any bearing upon probable cause.

MR. COYLE: Yes, sir.

THE COURT: Testimony about demeanor is what I understand you are concerned about.

MR. COYLE: That's the main thing we are concerned with and I will assure you I will keep it.

THE COURT: Put the trooper on about demeanor and go on.

MR. COYLE: Very well.

 

CHARLES HANGER, having been first duly sworn to tell the truth, the whole truth, and nothing but the truth, testified as follows:

DIRECT EXAMINATION

MR. COYLE: If I may have just a moment, judge, I am getting organized.

BY MR. COYLE:

Q. Good afternoon, sir?

A. Good afternoon.

Q. Would you tell the Court your name, please, sir?

A. Charles J. Hanger.

Q. How are you employed, sir?

A. I am a state trooper with the Oklahoma Highway Patrol.

Q. How long have you been with the Highway Patrol?

A. Since September, 1976.

Q. And is it correct, sir, that you were served with a subpoena duces tecum in a criminal case in this matter to bring with you certain items relative to the arrest of Timothy McVeigh?

A. Yes, I was.

Q. And did you bring those items?

A. Yes, I did.

Q. Your Honor, may I approach the witness and retrieve the items?

THE COURT: Unless there is some objection?

MR. GARLAND: Yes, if we are going to be produce documents I want to heard on this. I believe this I expressly barred by 18 United States Code Section 3500. The James Act bars the subpoena to be used for this purpose until after the witness testifies at trial for the adverse party.

MR. COYLE: The James Act? He is my witness.

MR. GARLAND: That's right.

MR. COYLE: He is my witness. You can discover it after he testifies at trial. He is my witness.

THE COURT: If you would like to identify the documents I will let you do that. I think introduction of the document will be discovery.

MR. COYLE: If the Court please, you issued an order asking him to bring the documents for us under those circumstances.

THE COURT: I sustained your motion ex parte motion.

MR. COYLE: For us to review them. I can't know what they are until I look at them.

THE COURT: I said they can't be introduced in evidence I said they would brought to the courtroom.

MR. COYLE: Could I see the documents?

THE COURT: I am telling you at this time to identify the documents that I believe the documents themselves the discovery. If you would like to identify them -- Trooper, what documents did you bring with you?

A. I have a --

THE COURT: Describe them in the general.

A. Probable cause affidavit, confiscated property report, copy of the summons that I issued, and some jail booking information.

THE COURT: Is that all?

A. I believe that's all, sir.

Q. Anything else? Can I see that now.

THE COURT: No, it's discovery.

A. Sir, I do have one more.

THE COURT: I am sorry. Go ahead.

A. Videotape.

THE COURT: What is that have?

A. This is a videotape of the car that I stopped there is no audio on this.

THE COURT: Video that is in your vehicle?

A. Mounted video.

MR. COYLE: May I inquire?

THE COURT: Yes, sir.

BY MR. COYLE:

Q. Is this the dash mounted video that you say that you have with you today when you brought in response to the subpoena, did that record the arrest of the accused in this case, Mr. Timothy McVeigh?

A. It did not.

Q. Can you tell us why you brought it then?

A. Listed on that sheet as evidence.

Q. So you don't have a video of the Mercury in this case or Mr. McVeigh or any of your activities relative to the stop that you have told us you performed upon the 19th of April?

A. You asked if I had a video of the actual arrest.

Q. Of any of the part of your interaction with Mr. McVeigh on April 19th?

A. It depicts the vehicle. It shows me moving about the vehicle. It does not show the arrest nor does it have any video of Mr. McVeigh.

Q. All right, can you tell us on the date, sir of April 19, 1995 at about 10:30 a.m. if you came in contact with a person by the name of Timothy McVeigh?

A. Yes, it was somewhat before that.

Q. All right, can you tell us where you first encountered Mr. McVeigh?

A. A little over a mile south of the state highway 15 at Billings exit on Interstate 35 northbound lane.

Q. What was the reason for this particular vehicle to catch your attention?

A. It was not displaying a tag.

Q. And after you saw it, did you fall in behind it? Where were you parked at the time you observed the vehicle?

A. I was traveling north in the left lane. He was in the right lane.

Q. He was traveling in a north direction?

A. Yes.

Q. And you passed that vehicle?

A. Yes.

Q. What kind of vehicle was that, sir?

A. It was a yellow 1977 Mercury Marquis with a primer spot on the left rear quarter panel.

Q. Did you then pull that vehicle over?

A. Yes, sir.

Q. As you approached the vehicle, what was the driver of the vehicle doing?

A. Sitting in it and the door open.

Q. Did he get out of the vehicle?

A. Yes.

Q. And what did he do upon getting out of the vehicle?

A. He approached me.

Q. Do you see that man in the courtroom today?

A. Yes.

Q. Would you point him out to the judge, please?

A. The young man with the white t-shirt, khaki pants, and blue tennis shoes with short dark hair.

Q. That young man that you see seated there today, he approached you?

A. Yes.

Q. And did he say anything to you at that time?

A. I believe I made the first statement.

Q. What did you say to him? What did you say to him?

A. I said I stopped you because you don't have a tag.

Q. What was his response?

A. He said he had recently purchased the automobile and didn't have a tag.

Q. What did you tell him at that point?

A. I said could you produce me a bill of sale.

Q. And tell us what he did?

A. He said I don't have a bill of sale, the person I bought it from was still filling it out.

Q. What did you ask him to do then?

A. I said how long does it take to fill out a bill of sale.

Q. And he replied to you?

A. I don't have one with me.

Q. What was the next think you said to him?

A. I asked him for his driver's license.

Q. Did he retrieve that for you?

A. He did.

Q. Was the driver's license that he handed you --

MR. COYLE: Your Honor, may I approach?

THE COURT: Sure.

BY MR. COYLE:

Q. Let me hand you please, Trooper Hanger what's been identified, sir, these proceedings previously as Government Exhibit No. 3 and ask you is that the driver's license that you were handed that day?

A. Yes, it appears to be the same.

Q. What's the name on that, sir?

A. Timothy James McVeigh.

Q. And after you saw that driver's license, what did you then do after he handed you the driver's license?

A. I looked at it.

Q. Okay.

A. By this time I had noticed a bulge in the left side of his jacket up under the left edge under his arm. I looked at the license, looked at him, and I said would you slowly move your jacket back so I can look underneath it.

Q. At that time he told you there was a gun underneath there?

A. Close to the time as he was easing back, he said I have a gun.

Q. Okay, he never made any sort of offensive moves toward you did he or any sort of aggressive moves toward you?

A. No, sir.

Q. At any time did he?

A. No, sir.

Q. Was he polite with you?

A. Yes, sir.

Q. Was he cooperative you in retrieval of license and removal of his jacket, every action this young man took during the course of that stop?

A. Yes, sir.

Q. Had you been made aware of the bombing in Oklahoma City at the time of your stop of this vehicle?

A. Yes, I had.

Q. Now, did he then remove the pistol?

A. No, I grabbed a hold of the jacket and the pistol.

Q. So you took it away from him and had you drawn your weapon at that time?

A. Not at that immediate moment.

Q. When did you draw your weapon?

A. I grabbed the jacket and the pistol and instructed him to out his hands up and as we walked toward the back of the car, his car, I drew my pistol.

Q. Did he cooperate in the what you told him to do walk to the back of the car?

A. Yes, sir.

Q. Did he at any time make any aggressive moves toward you during that period of time?

A. No, sir.

Q. And then what did you have him do?

A. Had him put his hands on the trunk.

Q. Did he cooperate with you?

A. Yes, sir.

Q. Did you then handcuff him?

A. I removed the pistol first, then I removed a pouch that contained an extra clip which he told me he had from the same area where the pistol was on a belt. Then he told me that he had a knife. I removed it through all these items on the shoulder of the road way then I handcuffed him.

Q. During all that was he cooperative?

A. Yes, sir.

Q. He did that he didn't try to struggle or resist or anything else, did he?

A. No, sir.

Q. Did you transport -- did you place him in your car?

A. Yes.

Q. And then what did you do after he was placed in your car?

A. I seatbelted him in and left him there while I was running some checks via my cellular phone.

Q. Did you run those checks?

A. Yes.

Q. And how did his license -- did his license turn up as valid.

MR. GARLAND: Objection, Your Honor, I thought we were going to with demeanor. He has wholly testified on that subject.

THE COURT: I thought that's what we were doing.

MR. COYLE: Okay, that's good.

BY MR. COYLE:

Q. Then did he get in the car -- got in your car, right?

A. I had already put him in my car.

Q. Okay did you have any conversation with this young man that you have identified that day?

A. Yes.

Q. What was your conversation after you put him in the car?

A. We had talked about where he purchased the car.

Q. What did he tell you?

A. In Junction City, Kansas.

Q. Did he tell you from whom?

A. He said it was from a Firestone dealer.

Q. Anything else he told you?

A. He told me the salesman's name.

Q. What was the salesman's name?

A. Tom.

Q. What else did he tell you?

A. I had also mentioned that he had a tag from a car that he had traded in when he bought this car, but he chose not to put it on there because it didn't belong there.

Q. Okay, anything else?

A. Not that I can think of.

Q. Did -- he didn't tell you anything else during the whole time that you had him in custody?

A. Right after I had handcuffed him and we were standing at the trunk of his car.

Q. Yes, sir?

A. I asked him why was he carrying a weapon. He said he felt like he had the right to care am weapon for his own protection. . Anything else he said to you at that point?

A. No, sir.

Q. If he wanted to up until the time that you noticed the bulge out or about his arm, he was cordial and polite with you; was he not?

A. Yes.

Q. And he in fact had a number of opportunities to pull that weapon from its location at or about his shoulder; did he not then you were approaching his vehicle?

A. Yes.

Q. As a result of this stop, did you connect him with the bombing in anyway at the time you stopped him?

A. Not at all.

Q. After you talked to him about where he had possibly purchased the car or where he had purchased the car at Junction City, did you have any other conversations with him?

A. Yes, and I am not sure just when it took place, you know but we talked about where he was coming from.

Q. Where did he tell you?

A. He said from Arkansas, said he was in the process of moving there, had taken a load of belongings to there and was going back to get more of his belongings.

Q. Anything else he told you?

MR. GARLAND: Your Honor, what we are trying to do here is discover statements.

MR. COYLE: This is statement of the accused.

MR. GARLAND: It is statement of the accused, but he is not entitled to it at this hearing.

MR. COYLE: Goes to demeanor, what he was doing.

THE COURT: Overruled.

BY MR. COYLE:

Q. What else did he tell you?

A. You are talking about statements that he volunteered to me?

Q. Yes, sir, statements that he made. You-all talked I guess all the way to the jail -- wait a minute. How far were you from the jail?

A. I am guessing 18 to 20 miles, maybe not quite that far.

Q. Took you 15 to 20 minutes to get there, am I correct?

A. Yes.

Q. During that time you visit with him?

A. Yes.

Q. And he was still polite to you, wasn't he?

A. Yes.

Q. Did he appear scared or nervous at that point?

A. No.

Q. And tell us, please what else he said?

A. While I was on the cellular phone talking to my dispatcher I was trying to determine where the car might be registered at. Couldn't find anything in Kansas. I had made a suggestion the car might be registered in Missouri because I had seen some type of safety sticker on the windshield. And he heard me talking on the phone to my dispatcher. He said that is an Arkansas safety sticker, so I told the dispatcher run the check in Arkansas and they did.

Q. And did it come back?

A. Came back to some individual in Arkansas with expired registration.

Q. What else -- what other conversation?

A. I didn't take any notes. It was just friendly chit chat. I had read him his Miranda warning. He said he understood. I asked him if he would talk with me. He said yes, depending on what you want to ask. I said would you visit with me just like we were visiting earlier while we are standing outside. He said yes. Some of those statements I have already told you followed that.

Q. Did you read him his Miranda Warning?

A. Yes.

Q. Did you read it from a card?

A. Yes, I did.

Q. Was he under the influence of anything in your opinion?

MR. GARLAND: Your Honor, objection all goes to the question of possible suppression. Has nothing to do with probable cause.

MR. COYLE: Sure goes to his demeanor.

MR. GARLAND: The rule expressly states the evidence is not relevant at this hearing.

THE COURT: Sustained.

BY MR. COYLE:

Q. Any other conversation that you recall all the way to the Noble County Jail?

A. I had told him how dangerous it was to carry a weapon like that that a furtive move, wrong move could result in some officer mistakenly shooting him.

Q. Anything else that he told you. What did he say in response though that statement?

A. I think he said something like that's possible.

Q. Anything else he said?

A. No, it was just chit chat. I don't remember. It was nothing that meant anything to me at the time. It was just might have said a few things on the way down there. I didn't take any notes and I can't expressly tell you what that was.

Q. Do you keep a tape-recorder with you?

A. No, I do not.

Q. Did you search Mr. McVeigh's car?

A. Yes, I did.

MR. GARLAND: Objection, Your Honor. I thought this was going -- objection, Your Honor I thought this was going to be only about the demeanor of the witness.

THE COURT: Sustained.

MR. COYLE: I believe that's all. Thank you, sir.

THE COURT: Any questions.

MR. GARLAND: No.

THE COURT: You maybe excused. May we open the documents that have been heretofore sealed with regard to this?

MR. COYLE: I would ask.

MS. OTTO: Are the documents we are talking about are applications for the subpoena and issuance of the subpoena?

THE COURT: I just wanted to know.

MS. OTTO: I don't see any particular problem with that.

THE COURT: They will be unsealed then. Anything further?

MS. OTTO: No, Your Honor, nothing further.

THE COURT: All the evidence in on behalf of the Defendant?

MS. OTTO: Yes, Your Honor.

THE COURT: Counsel care to make any statements regarding probable cause or the detention issue.

MR. GARLAND: I would like to be heard on detention. Do you want to make a ruling on probable cause or do you want to do them both at the same time?

THE COURT: Same time.

MR. GARLAND: Your Honor, we will rest on entry of the evidence with respect to the probable cause.

With respect to the detention, Your Honor I would ask that he be detained pending the trial. 18 U.S.C. Section 3142E finds that the Court-- states that the Court must order detention if it finds no conditions were reasonably assure the appearance of any person as required and the safety of any other person in the community.

First, Your Honor, we believe that the presumption that no condition can assure these -- both the appearance and safety apply here. The statute provides that if there is probable cause to believe that the Defendant has violated 18 U.S.C. 924C that presumption applies.

You have heard evidence, Your Honor, more than sufficient to establish that during and relation to a crime of violence the Defendant used and carried a destructive device that is a bomb. Therefore, the presumption applies and should be detained. Even without the presumption, we would make the following arguments, Your Honor: With respect to appearance, this Defendant has no fixed residence or community ties. He has lived in multiple states over the last small period of time.

He gave a South Dakota address at the Ryder Truck rental. He had a Michigan license and a Michigan address at the time of his arrest investigation has shown he has resided in both New York and Arizona during this same time. That goes to the question of whether he has community ties. It's one of the factors listed. In addition, Your Honor, as everyone knows he faces the possibility of the death penalty in this case and enormous incentive to flee. The government represents no condition would prevent a person in that situation from fleeing.

Finally, Your Honor with respect to the safety of the community, the statute directs us to look at the nature of the offense and could not imagine a more heinous offense than this.

The Defendant has shown a willingness to kill innocent children, law enforcement officers, and ordinary people going about their ordinary lives. No series of the conditions could reasonably assure his appearance or the safety of other persons in the community. For that reason, he should be detained.

MR. COYLE: We will waive argument.

THE COURT: All evidence is in. All arguments have been submitted by counsel. This is before the Court on decision of issue of probable cause and the government for detention. The Defendant is charged with the statute that is set out in Section 844 Title 18 specifically paragraph F principal elements of that statute are malicious damage by an explosive to a federal -- to federal property and if death results to any person then the penalties provisions are also included in that statute.

The Court finds that all elements of that statute are satisfied by probable cause evidence that has been introduced in the case. The Court also finds that an indelible train of evidence -- trail of evidence that starts in Junction City and ends up at the front door of the Murrah Building.

The Defendant has been identified in person at both locations both Junction City and also in Oklahoma City by several witnesses, also vehicles that the specific Ryder Truck and also the Mercury were identified at both locations.

I will not detail all of the evidence because I think the evidence is highly credible as introduced by the United States and that the Court believes and finds there is ample and sufficient probable cause to hold the Defendant for further proceedings in District Court.

He has been identified both in person and also through the elements of this offense. The Court has no idea of what further prosecution or how that will take place that is in discretion of the United States Attorney's Office.

The detention issue I think is taken care of the severity of the offense and the Court makes a finding ample clear and convincing evidence based upon the nature of the offense and what I think is highly credible probable cause evidence to detain the Defendant pending further proceedings, and I believe that evidence is clear and convincing and I believe he should be detained for both risk of flight and serious dangerous to the community.

At this time I want to express my appreciation to defense counsel who have performed with great skill and professionalism at the Court's direction representing the Defendant in these proceedings.

I would like to ask if the Defendant desires to proceed with appointed counsel or if the Court's receive a financial affidavit which he should complete and I will ask counsel to confer with him about that so that its accurate and I would ask if he could do that at this time before we leave this proceeding.

MS. OTTO: Yes, Your Honor, we can assist him in that. He would have to be unhandcuffed to assist us in the preparation of that.

Also before we leave today I would like to request that the Court consider a matter that we take very seriously. We have heard a great deal of testimony today about various witnesses, some of whom place Mr. McVeigh in Oklahoma City on various dates. Some of these witnesses claim to have seen Mr. McVeigh on the date in question, and many of these witnesses have not been shown at this point either a photo spread or a live lineup.

Ms. Joplin contacted Mr. Coyle and I late last week, I think, it would have been Saturday. Leslie Maye was actually person who contacted Mr. Coyle initially about the live lineup that was conducted Saturday night at the Oklahoma County Jail. Mr. Coyle and I were present. We were present during the composition of the lineup although we were not allowed to participate in it.

We were also present in the room when the witnesses were brought into participate in the live lineup and we certainly agree with Ms. Joplin's assessment that was was an appropriate procedure. One of the great concerns in any case that release in part on eyewitness identification is a part of eyewitness identification taint.

And I certainly believe there is a high degree of probability in this case that any eyewitness or alleged eyewitness who is brought forward by the government will in all likelihood have witnessed Mr. McVeigh in essentially a repeated every half hour for a couple days show up on CNN and the local stations in the company of Federal Bureau of Investigation, United States Marshals, and local deputies. He is the man in orange surrounded by all of the other gentleman, and we are very concerned that because of the intense and pervasive publicity in this case that there is a very high degree of probability of all of the alleged eyewitnesses at this point have been tainted.

We were therefore going to request that an order be entered directing the government to conduct only live lineups with these witnesses and that we be present at any and all live line ps. In the event the Court declines to enter such an order and allows the government to proceed with FBI photo spread, identification, again we ask to be present during any photo spread display that might be conducted by the government.

I think it is absolutely critical as long as we are Mr. McVeigh's attorneys and I make this request on behalf of any counsel who would succeed us as Mr. McVeigh's representatives in this case, it is absolutely essential to the preparation of an effective defense that we be allowed to see and hear from the witnesses own mouth what he or she says about this identification.

I understand Agent Hersley was not present at the live lineup. I was. And the eyewitness identification of those two people who sort of identified Mr. McVeigh in the lineup was equivocal at best.

Without Counsel being present during any attempted identification of Mr. McVeigh, Counsel will lose that opportunity forever. We simply cannot rely on any government agent or government lawyer, however, well intentioned to listen with a degree of critical discernment that any criminal defense lawyer would.

I understand the government -- I understand the government is actively pursuing this case and that they want to see justice be done, and I think this is a request that is entirely consistent with seeing that justice is done.

THE COURT: I would prefer your oral request matter of record and I prefer that you submit a written motion and brief.

MR. COYLE: Yes, Your Honor, could we ask the government to refrain from conducting any lineups until I am able to do that? We would also like for it to be recorded a video record to be made so that the jury in the future could judge for themselves.

THE COURT: You want to agree to that?

MR. GARLAND: No, Your Honor, in the most strenuous way. With respect to live lineups, of course, we will allow them to be present. We allowed them to be present at the last one we have notified. I have never heard of a court making the order which they just cited, and I would be surprised if we ever see one. We will drastically put behind this investigation if you prevent us from doing photo spreads until such time they were able to put together --

MS. OTTO: If the government is concerned about delaying this investigation, I suggest we could cure that problem by simply asking the government to record any conversations that they have with the eyewitnesses. I do know that the FBI is in possession of tape-recorders because they tape-recorded one of my clients.

I understand it is not their usual course of business, but in light of the severity of this case and the possible punishment that Mr. McVeigh faces if he is convicted, I think it's a small consession for the government to make to record any conversations that they have during the course of a photo spread lineup. It seems a very modest request under the circumstances.

THE COURT: My basic responsibility at this point I think are over in this case. However, for whatever authority Imay have in connection with this. I prefer that you submit a written motion.

MS. OTTO: Your Honor, Your Honor, you are the only judicial officer with jurisdiction at this point and I am very serious about this request.

THE COURT: I just prefer, Ms. Otto, that it be a written motion.

MS. OTTO: I certainly will prepare that and I hope to have it submitted tomorrow. I would hope that the government would at least record any conversations with witnesses in the meantime.

MR. GARLAND: Your Honor, we will not. We will only do what the law requires and what the law requires with respect to lineups we will provide them with information. We will not record conversation with prospective witnesses. I want to make that very clear. I do not believe they will find a single case in which that has been ordered. I don't believe that is within the authority of this Court to order.

THE COURT: I have some divergent opinions. I think I would rather have a motion.

MS. OTTO: I understand, Your Honor. I doubt the government will find a single can case that says its outside your authority.

THE COURT: Anything further at this time?

MS. OTTO: Nothing further upon behalf of the Defendant.

THE COURT: May I ask that this affidavit be completed and since if the Defendant has any questions and perhaps that can be taken care of so I can -- I understand he desires at this point to proceed with appointed Counsel, so I would like to have that affidavit on file.

THE COURT: Hearing is recessed and everyone can be excused.

(THE PRELIMINARY HEARING WAS CONCLUDED AND THE COURT WAS IN RECESS.)