Trentadue-plaintiff's Opposition Motion to Strike Ecf
Transcript of Trentadue-plaintiff's Opposition Motion to Strike Ecf
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Jesse C. Trentadue (#4961)
8 East Broadway, Suite 200
Salt Lake City, UT 84111Telephone: (801) 532-7300
Facsimile: (801) 532-7355
Pro Se Plaintiff
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
JESSE C. TRENTADUE,
Plaintiff,
vs.
FEDERAL BUREAU OF
INVESTIGATION, UNITED STATES
DEPARTMENT OF JUSTICE OFFICE
OF INFORMATION AND PRIVACY,and UNITED STATES CENTRAL
INTELLIGENCE AGENCY,
Defendants.
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MEMORANDUM IN OPPOSITION
TO FBI DEFENDANTS MOTION
TO STRIKE
Case No.: 2:08cv788 CW
Judge Clark Waddoups
Chief Magistrate Samuel Alba
At the conclusion of the March 21, 2012, hearing on FBI Defendants Motion for
Summary Judgmentand Plaintiffs Rule 56(d) Motion For Continuance Pending
Discovery, the Court granted FBI Defendants request to submit additional evidence.1
1 Doc.103.
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On June 15, 2012, FBI Defendants filed aMotion to Strike,2 and a Supplemental
Memorandum in support of theirMotion for Summary Judgment.
3
Plaintiff hereby
submits thisMemorandum in opposition to FBI DefendantsMotion to Strike.4
INTRODUCTION
The focus of this lawsuit is upon several videotapes: (1) videotapes taken of the
Alfred P. Murrah Federal Building on the morning of April 19, 1995, which reportedly
show the delivery of the bomb and perpetrators of that mass murder; and (2) the original
videotape taken by the dashboard camera in Oklahoma Highway Patrolman Charles
Hangers vehicle showing the arrest of Timothy McVeigh a short time later on that same
morning and a potential accomplice in the bombing, Steven Colbern, who was reported to
be following McVeigh in a brown pickup truck.
It is also a case about the most crucial evidence in what was then the biggest
criminal investigation ever handled by FBI Defendants: the bombing of the Murrah
Building. FBI Defendants contend that they cannot find the videotapes showing the
bomb being delivered that morning, and that they only have what appears to be an edited
version of the Hanger videotape, not the original. Furthermore, rather than present the
2 Doc. 105.
3 Doc. 104.
4 Plaintiff will file a separate response to FBI Defendants Supplemental
Memorandum.
2
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Court with evidence showing that these tapes do not exist, FBI Defendants have filed a
Motion to Strike evidence presented by Plaintiff which clearly shows that these tapes do
exist and that FBI Defendants do not wish to make them public.
The American public, however, has a right to know what happened in Oklahoma
City on the morning of April 19, 1995 and, more importantly, why? Yet, it is obvious that
for some reason FBI Dedfendants do not want the truth about the Oklahoma City
Bombing made public. But whatever the reason, that is precisely why the Freedom of
Information Actbecame law: to protect the right of American citizens to know their own
history and, more importantly, their government.5 It is also why the Court should
recognize FBI DefendantsMotion to Strike as a subterfuge designed to lead the focus of
this dispute away from exposing the truth about the Oklahoma City Bombing.
5 The Freedom of Information Actwas designed to insure an informed citizenry,
which is so vital to the functioning of a democratic society, in order to guard againstgovernmental corruption and to hold the government accountable for its actions. Virgil v.
Andrus, 667 F.2d 931, 938 (10th Cir. 1982). Moreover, it is recognized that public interest
in disclosure under Freedom of Information Actis greatest when there is evidence of
governmental wrongdoing. See Lissener v. United States Custom Service, 241 F.3d 1220
(9th Cir. 2001).
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STATEMENT OF FACTS
FBI Defendants have moved to strike statements from four pieces of
documentary evidence submitted by Plaintiff. These are: (1) two sentences from a
Secret Service Time line, which documents surveillance cameras having recorded
the delivery of the bomb to the Murrah Building on the morning of April 19, 1995,
including the suspects who drove the Ryder truck carrying the bomb, and the
resulting explosion that took 168 lives; (2) a portion of two paragraphs from a
May 12, 1995, article in theHouston Chronicle reporting upon the contents of a
videotape taken by the dashboard camera in Oklahoma Highway Patrolman
Charles Hangers patrol vehicle which, according to that article, recorded not only
the arrest of McVeigh on the morning of April 19, 1995 but also recorded Steven
Colbern, a suspect in the Murrah Building Bombing, who was apparently traveling
with McVeigh; (3) three sentences from theDeclaration of Joe Bradford Cooley,
wherein he explains the operation of the Murrah Building surveillance cameras,
including how and where images from those cameras were recorded within a
month or so prior to the Bombing; and (4) one sentence from the Declaration of
former Oklahoma City Police Officer Don Browning, that likewise describes how
and where the images from the Murrah Building surveillance cameras were being
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recorded prior to the Bombing. The facts relevant to FBI Defendants challenge to
this evidence have been marshaled and are separately set forth below:
A. Secret Service Time line.
FBI Defendants have asked the Court to strike part of the Secret Service
Time line describing what surveillance cameras from the Murrah Building and/or
nearby buildings recorded on the morning of April 19, 1995. This, too, is a
distraction from what Plaintiff sees as the real issue, and that being FBI
Defendants total failure to present the Court with any evidence that to support
their claim that a videotape showing the bomb being delivered to the Murrah
Building on the morning of April 19, 1995, does not exist. The only thing
presented by FBI Defendants that even comes close to being considered evidence
on this point is the following suspicious statement under oath by Mr. Hardy:
While it is always possible that responsive documents
might have been misfiled and thus could be located somewhere
other than in the OKBOMB file (though it would be impossible
to know where). I am not aware that this is the case, and a
reasonable search did not and would not locate any such
documents (if they exist) because they would not be in a location
likely to contain responsive documents.6
6 Doc. 83-1, 20.(emphasis added).
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The following facts are relevant to FBI DefendantsMotion to Strike portions of
the Time line:
1. With the first entry being at 10:40 AM on the morning of April 19,
1995, the Time line is a 129 pages document prepared by the Secret
Service, which records the evidence being gathered by FBI during the weeks
immediately following the Bombing. Until now, Plaintiff has only filed selected
pages from that Time line. That Time line, in almost its entirety, is now attached
hereto as Exhibit 1.7
2 It is important to note that the Time line is also a real time
document in that it records by day and hour when the information was received by
the Secret Service and the source of that information. For example, the FBI seized
the original Hanger dashboard camera tape on April 27, 1995.8 On May 2, 1995,
the Time line records that FBI has obtained a videotape from the OK state
7 Plaintiffs copy of the Time line, however, is missing page 86. Plaintiff has also
removed from the Time line personal information as required by Federal Rule of Civil
Procedure 5.2 andDUCivR 5.2-1.
8 Doc. 91, pp. 45 and 46.
6
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police troopers vehicle of the vehicle stop of subject McVeigh and are
attempting to identify passing vehicles.9
3. FBI Defendants contend that this Time line was made part of the
record in this case on August 1, 2011, and again on October 7, 2011, when a
portion was submitted by Plaintiff in support of hisRule 56 Motion.10 But, FBI
Defendants are mistaken as to when this evidence became part of the record in this
case. The part of the Time line to which FBI Defendants object was first filed of
record on March 29, 2010,11 in support of Plaintiffs Motion to Compel production
of Murrah Building surveillance tapes.12 Yet FBI Defendants file noMotion to
9 Exhibit 1at p. 108 (emphasis added).
10 Doc. 105, p.2 2.
11 The portions of the Time line that FBI Defendants now challenge, however, had
likewise been sent by Plaintiff to them on October 7, 2009, as proof of the bomb delivery
tapes existence. See Doc. 61-2, pp. 72-78.
12 Doc. 48-3, p.4. This is significant because the admission of this evidence under
Federal Rule of Evidence 807 requires that the opposing party be given sufficient
advanced notice of the proponents intent to use the evidence in order to pose an
objection. And Plaintiff has clearly met the notice requirement ofRule 807. Furthermore,
all of the evidence challenged by FBI Defendants in theirMotion to Strike meets therequirements for admission under Rule 807: (1) it is being offered as evidence of a
material fact, existence of videotapes in FBI Defendants possession which show the
bomb being delivered to the Murrah Building and others involved; (2) this evidence is
more probative on the issue of the existence of such tapes than any other evidence that
Plaintiff could reasonably procure without the benefit of formal discovery options; and
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Strike until June 15, 2012,13 which was long after the Court had entered its May 13,
2011 Order.14
4. FBI Defendants do not dispute the authenticity of the Time line.
Instead, FBI Defendants contend that several statements in the Time line
should be stricken because they are hearsay and/or because the Secret Service has
disavowed the trustworthiness of these statements in sworn testimony.15
5. The portions of that Time line related to the tape from surveillance
cameras are set out below, with the portions which FBI Defendants have asked to
be stricken highlighted in blue:
ATSAIC McNalley contacted the ID/DD and reported that the
information contained herein is the result of a conference call between
FBI SAICs involved in the investigation and FBI Director Freeh.
(3) the admission of this evidence serves the interest of justice as well as the public
interest in the disclosure of those tapes under the Freedom of Information Act. See Rule
807. The Court likewise has considerable discretion in the admission of evidence under
Rule 807, which an appellate court will not disturb absent a definite and firm conviction
that the admission of the evidence a clear error of judgment. See Page v. Barko
Hydraulics, 673 F.2d 134, 140 (5th Cir. 1982).
13 Doc. 105.
14 Doc. 82. FBI Defendants delay in bringing theirMotion to Strike until after the
Courts May 13, 2011 Ordercertainly raises a waiver issue. See
15 Doc. 106, pp. 5-6.
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* * *
A witness to the explosion named Grossman claimed tohave seen
a pale yellow Mercury car with a Ryder truck behind it pulling up tothe Federal Building. Mr. Grossman further claimed to have seen a
woman on the corner waving to the truck. ATSAIC McNally noted that
this fact is significant due to the fact that the security video shows the
Ryder truck pulling up to the Federal Building and then pausing (7-10
seconds) before resuming into a slot in front of the building. It is
speculated that the woman was signaling the truck with a slot became
available.
A catering truck driver who was traveling east just prior to theexplosion noticed the Ryder truck in front of the Federal Building and
saw two men leaving the vicinity of the truck and crossing the street
heading for a brown pickup truck.
* * *
Security video tapes from the area show the
truck detonation 3 minutes and 6 seconds after the suspects [plural]
exited the truck.16
6. With respect to FBI Defendants hearsay claim, they overlook the
fact that the source of the challenged statements contained in the Time line was the
FBI, such as the information about surveillance film recovered from the Regency
Hotel . . . shows the Ryder truck moving to the OKC Federal Building,17 which
16 Doc. 98-3, pp. 2, 5 and 6.(emphasis added).
17 Exhibit 1, p. 61 at 1330 hours.
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came from Secret Service agent McNalleys conference call with FBI SAICs
involved in the investigation and FBI Director Freeh.18
7. The claim about the Secret Service having disavowed the
statements in the Time line about surveillance videotapes comes from an April 4,
2004, USA Today article, which FBI Defendants submitted as additional
evidence. 19 More importantly, in that article Stacy A. Bauerschmidt, the Secret
Service spokesperson, does not disavow the statements in the Time line as FBI
Defendants contend. Rather, Bauerschmidt says that the Secret Service does not
vouch for the reliability of the statements contained in the Time line. 20 Nor could
the Secret Service vouch for the accuracy of the Time line since the surveillance
videotape evidence apparently came from FBI Director Louie Freeh and/or other
FBI personnel.21
18 Id. at p. 60 at 1330 hours.
19 Doc. 106-1, p.2.
20 Doc. 106-1, p.2.
21
There is likewise no evidence to support the statement contained in the articlethat: A Secret Service agent testified . . . the government knows of no videotape. Doc.
106-1, p.2. That statement is clearly hearsay and does not meet the requirements for
consideration by the Court underRule 807. In addition, while the Secret Service may not
have any first hand personal knowledge about the existence of the bomb delivery
videotapes, it is certainly clear from the evidence produced by Plaintiff in the instant case
that FBI Defendants have such knowledge.
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8. It is should also be noted that FBI Defendants say nothing
about indicia of trustworthiness associated with this Time line, such as the fact that
FBI Defendants concede that it is a Government record. Yet that is not all of the
indicia of trustworthiness associated with the Time line referencing the existence
of surveillance tapes showing delivery of the bomb to the Murrah Building and the
subsequent explosion.22
9. There is, for example, a December of 1995 article inMedia
Bypass Magazine, about several FBI agents attempting to sell 19 minutes of video
footage taken from surveillance cameras on the Murrah Building and/or other
nearby buildings.23 TheMedia Bypass article states:
Senior FBI officials in Washington confirmed that the
bureaus internal Office of Professional Responsibility is tryingto determine whether the pair, assigned to the Los Angeles Field
Office, were involved in attempting to sell the tape.24
* * *
The fact that the FBI admits investigating two of its
employees for the attempted sale would seem to confirm the
22 The indicia of trustworthiness underRule 807, can come from sources outside of
the particular evidence at issue. See U.S. v. Van Lufkins, 676 F.2d 1189, 1192 (8th Cir.
1982).
23 Exhibit 2 hereto,(emphasis added).
24Id. at 33.
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existence of usable footage, which reportedly ended only when
the blast disabled the cameras.25
* * *[T]he tapes they provided reportedly included
excellent footage of the Ryder truck and the
suspectsMcVeigh and John Doe No. 2'leaving the vehicle.
A third camera reportedly captured the actual initial
detonation of the ANFO (ammonia nitrate and fuel oil) truck
bomb, according to sources who have viewed an edited and
enhanced version of the tape.26
* * *
Another FBI agent, reportedly based out of OklahomaCity, is under investigation after he allegedly ran off at least 12
copies of the videotape for friends and coworkers, said an agent
in Texas familiar with the investigation.27
* * *
[F]ootage from the YMCA camera shows a suspect
resembling Tim McVeigh stepping down from the drivers
side of the truck. He bends over for a moment to pick up
something or to tie his shoe, then walks north across the
street and out of camera range. . . .John Doe No. 2 exits the
25Id. If Mr. Hardy or FBI Defendants truly wanted to know about bomb delivery
videotapes, including their source and possible location, a good place to look would be
the files and documents related to FBI Defendants investigation of these two agents who
tried to sell the tapes. Another source of information would obviously be the record inthe McVeigh and Nichols criminal prosecutions, USA v. McVeigh et. al, District of
Colorado Case 1:96CR00068, but all entries prior to March 26, 2009, in the official court
docket of that case have disappeared. See Exhibit 3 hereto.
26Id.
27Id. at 35.
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passenger side of the vehicle.28 . . . [V]ideo footage from the
Regency Tower cameras also shows the initial explosion.29
This videotape that the agents were attempting to sell appears to have been
cobbled together from film taken by cameras located on the Murrah Building or
nearby buildings.
10. The videotapes showing delivery of the bomb on April 19, 1995,
may also have been from an ATM machine located at the Regency Hotel.
According to FBI records, [a]nalysis of the video footage indicates that the truck
was parked in front of the Federal Building for as little as four minutes prior to
exploding, 30 which is consistent with the Time line reference to the bomb
28Id. (emphasis added). Plaintiff had also requested the videotape from theYMCA cameras, but that have not been produced. See Doc. 61-2, p. 87. FBI records
reveal, too, that at least one of the cameras on the Journal Record Building faced toward
the explosion. Doc. 23-3, p. 22. And while FBI Defendants did produce videotapes
from the Journal Record Building cameras, he has seen no tape containing images of the
explosion that destroyed the Murrah Building.
29Id.
30 Exhibit 4 hereto. But even if cobbled together from other tapes, or taken from
an ATM machine at the Regency Apartments, this tape clearly fell within the scope ofPlaintiffs Freedom of Information ActRequest. Plaintiff asked for the videotapes taken
on the morning of April 19, 1995 by security or surveillance cameras located on the
Murrah Building and ten other near by buildings. Doc. 61-2, pp.33-36,and 44-45.
Plaintiff also made clear in thathis Request included the surveillance tape or tapes
showing the Ryder truck pulling up to the Federal Building and the pausing (7-10
seconds) before resuming into a slot in the front of the building and the truck
detonation 3 minutes and 6 seconds after the suspects exited the truck that was
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detonating 3 minutes and 6 seconds after the suspects exited the truck. In
addition to the December 1995Media Bypass article, there have been several
letters exchanged between Plaintiff and counsel for FBI Defendants about
evidence of missing or not produced surveillance camera videotapes.
11. For example, on January 23, 2012,31 Plaintiff wrote opposing
counsel stating:
I am writing to you in hopes of avoiding aMotion toCompel in this case concerning the Regency Tower surveillancecamera videotapes. In addition to the tapes from the Murrah
Building surveillance cameras, an important subject of this FOIAlawsuit was also the videotapes taken on the morning of April
19, 1995, by the exterior surveillance cameras mounted on the
Regency Tower Apartment Building.
As you recall, I made a specific request for the Regency
Tower videotapes, and commenced this lawsuit to obtain them.On or about July 16, 2009, Mr. Hardy sent me video coverage
for the Regency Tower (6 DVDs), responsive to your FOIA
described in the Secret Service Time line: To repeat myself for emphasis, I would like
copies of these tapes showing McVeigh and another person delivering the bomb to the
Murrah Building on the morning of April 19, 1995, and the detonation of that bomb. I
want these videotapes even if they are not among those [specific] videotapes I have asked
for in paragraphs 1 through 11 above. Doc. 61-2, pp. 44-45(emphasis in original). Seealso Doc. 61-2, p. 36 containing the same request. Furthermore, because Freedom of
Information Actrequests are to be liberally and broadly construed, it cannot be disputed
that Plaintiffs request for the bomb delivery videotapes would cover all such tapes,
regardless of whether they were from ATMs or surveillance cameras. See Anderson v.
Dept. of Health and Human Services, 907 F.2d 936,1 (10th Cir. 1990).
31 Exhibit 5 hereto.
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request [OKBOMB VIDEOTAPES] noted above.32 You may
also recall my complaints to you about those tapes having been
edited, which now appears to have been the case. I say this
because of the testimony of FBI agent Jon Hersley.
Recently, I happened upon the testimony that Mr.
Hersley gave on April 27, 1995, during the Preliminary Hearing
for Timothy McVeigh. In that testimony, Mr. Hersley
describes in detail a videotape from one of the Regency
Tower exterior surveillance cameras taken at approximately
9:00 AM on the morning of April 19, 1995, including images
of the Ryder Truck and yellow Mercury shown in that
tape.33
According to Mr. Hersely, this camera scanned the area
in front of the Regency Towers and that while, for some
unexplained reason, he had not watched the entire tape but was
shown still photographs produced from the tape, these
photographs showed the Ryder Truck moving in an easterly
direction towards the Murrah Building at approximately 9:00
AM on April 19, 1995.34
The problem that I am having is that none of the images
described by Mr. Hersely in his Preliminary Hearing testimonyappear on the 6 DVDs which Mr. Hardy sent to me. I would
very much appreciate it, therefore, if you could inquire of the
32 Id. (emphasis in original).
33Id. (emphasis added).
34 The Time line also references this videotape. Exhibit 1, p. 61 at 1330 hours. (A
surveillance film recovered from the Regency Hotel, has been enhanced and shows the
Ryder truck moving to the OKC Federal Building). Yet, further corroboration of the
Time lines trustworthiness from an evidentiary perspective.
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FBI about the missing video footage and provide me with a copy
as soon as possible.
12. On January 25, 2012, counsel for the FBI Defendants wrote back
assuring Plaintiff that he already had the videotape referenced by Hersley and
further stating that you are certainly free to apply whatever enhancement
techniques you wish to the footage yourself.35
13. Two days later, on January 27, 2012, Plaintiff responded:
Finally, it is also noteworthy that the FBI does not say that it
cannot find the Regency Tower surveillance tape. Rather, you say in
your January 25, 2012, letter to me that the photographs made from this
videotape which Agent Hersley saw, were produced through
enhancement techniques and, that since I am now supposedly in
possession of the videotape, I am certainly free to apply whatever
enhancement techniques . . .[I] wish to that footage. . . . However, as I
have repeatedly said, I was never given that videotape notwithstanding
your contention that it was provided to me by the FBI, which brings me
to a reasonable solution to this dispute.36
14. Counsel for FBI Defendants wrote back on February 1, 2012
insisting that the footage described by Agent Hersley in McVeigh Preliminary
Hearing testimony had been produced to Plaintiff in the DVD labeled 1B260
35 Exhibit 6 hereto.
36 Exhibit 7 hereto, at pp. 3-4.
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Regency. 37 Plaintiff immediately, February 1, 2012, responded to that letter
stating:
I am writing to follow up with you both on Ms. Wyers
letter to me of February 1, 2012, regarding the Regency Tower
surveillance camera videotapes. I have DVD 1 B260" to
which Ms. Wyer refers to in here letter,but the film on that
DVD is from the surveillance camera located in the lobby of
the Regency Tower facing the entrance. Yes, in a blur, it
does show the Ryder truck passing at the time indicated in
Ms. Wyers letter. What the FBI did not give me, however,were videotapes from the surveillance camera(s) mounted on
the exterior of the Regency Tower Apartment building
which, according to Agent Hersley testimony, scanned the
parking lot and 5th Street in Oklahoma City on the morning
of April 19,1995. 38
For your reference, I have enclosed a photograph of the
Regency Tower Apartments taken shortly after theBombing.This photograph was taken from in front of the Murrah Building
looking westward down 5th Street towards the Regency Tower
Apartments. If you enhance this photograph, you will see
that mounted on the southeast corner of the Regency Tower
Apartments at about the level of the 9th or 10th floors, is the
exterior camera that Agent Hersley said scans in front of
the Tower building and also over towards the parking lot.39
When I said that Agent Hersleys testimony about
not viewing the entire videotape from this camera was
incredible, what I meant was: Agent Hersley said, under
37 Exhibit 8 hereto at p. 1.
38 Exhibit 9 hereto.(emphasis added).
39Id. (emphasis added).
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oath, that his role in theBombing investigation was to
identify and locate other individuals who may have been
involved in the bombing on April 19th
, 1995. Yet he nevertook the time to look at that tape which scanned 5th Street
towards the Murrah Building in order to view the explosion
and images of the perpetrators! 40
I find equally hard to believe the FBIs statement to you
that there is nothing in the Time Line that the Secret Serviceprepared in theMcVeigh case which purports to describe any
materials as [being] in the possession of the FBI. I say this
because the Time Line clearly states that the information aboutthe Regency surveillance film came from a conference callwith FBI Director Freeh.
This all having been said, when can I expect to receive a
DVD containing the videotape footage taken on the morning of
April 19, 1995 by surveillance cameras mounted on the exterior
of the Regency Tower Apartment Building?
Plaintiff never received a response to that letter.
15. There is also the matter of the surveillance camera videotape
and 300 related documents that were being kept at FBI Headquarters during the
McVeigh prosecution and not in Oklahoma City with the other Bombing evidence,
which is highly suspicious. It is highly suspicious because FBI Headquarters does
not have an Evidence Control Center or Evidence Control Room.41 There would
have been, therefore, no proper chain of custody for this evidence. Keeping this
40Id. (emphasis added).
41 Doc. 83-1, 6.
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evidence at FBI Headquarters likewise appears to violated FBI evidence collection
and maintenance policies and procedures.42
16. The existence of this videotape being secreted at FBI
Headquarters surfaced as the result of a 1998 FOIA suit by a reporter named
David F. Hoffman.43 In that action, Mr. Hoffman requested essentially the same
videotapes and documents being sought by Plaintiff.
44
He asked for the Hanger
videotape, surveillance camera videotapes taken from the area surrounding the
Alfred P. Murrah Building on 4/19//95, and any other documents concerning the
tapes. 45
17. Mr. Hoffmans request was eventually denied because of the
ongoing criminal prosecutions against Tim McVeigh. The Hoffman Court,
however, specifically noted that there were 22 videotapes and 147 responsive
42 See FBIsManual of Administrative Operations and Procedures, Doc. 63-13.
See also Declarations of former FBI Agent Johnson, wherein the FBIs evidence
collection procedures are described. Doc. 70-1 and 91, pp. 37-41.
43 Hoffman v. United States Department of Justice, Western District of Oklahoma,5:98CV1773.
44 70-15, p. 2, s 4 and 6. For comparison, Plaintiffs request for the same
videotapes and all reports, including 302s that describe and/or reference the FBI taking
possession of the videotapes is in the record. See Doc. 61-2, pp. 18-19.
45 70-15, p.2, s 4 and 6.
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documents at the FBIs Oklahoma City Field Office,46 as well as one mystery
videotape and 300 responsive documents being kept at FBI Headquarters.47
18. There is likewise the FD-302 prepared of FBI agent Kaminskis
46 FBI Defendants, however, only provided Plaintiff with 164 pages of documents.See Doc. 61-2, p.56. Likewise, FBI Defendants produced 29 videotapes to Plaintiff (Doc,
61-2 pp. 63 and 66), but no videotapes from the Murrah Building cameras, the YMCA
Building cameras or tapes of the bomb being delivered although these videotapes had
been specifically requested by Plaintiff. See Doc. 61-2, pp. 43 through 45.
47 Doc. 70-15, p. 9. Of equal importance, theHoffman Court called the Justice
Departments conduct in that FOIA suit a shoddy conduct apparently designed to
maintain its shroud of secrecy in the Oklahoma City bombing case. Doc. 70-16, p. 5.
TheHoffman Court also observed that:
This case has been pending now for 2-1/2 years. Defendant has
received numerous opportunities to justify the exemptions invoked
during the administrative process to deny Plaintiff access to the FBIs
records. Defendants efforts have been disappointing. It has filed
summary judgment motions, accompanied by cursory arguments
and sketchy, at times almost unintelligible, affidavits. In the
Courts view, Defendants conduct has been unacceptable, to the
point that one might question whether the FBI has viewed its
FOIA obligations seriously. The Court is not an adjunct of the
Department of Justice that can be asked to accept the correctness of itsposition without question or to assume facts not in evidence.
Defendants must supply sufficient information to permit judicial
review of the Agencys decision to withhold records from disclosure.
Doc. 70-17, p 3.
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interview of Ronald E. Stakem. Mr. Stakem had driven by the Murrah Building
on the morning of April 19, 1995, just before the Bombing. In the early afternoon
of April 19, 1995, Stakem was contacted by an FBI agent by the name of
Kaminski, who wanted to know what Mr. Stakem had observed. The FBI agent
never explained to Mr. Stakem how he had known that Mr.Stakem had driven by
the Murrah Building that morning. Kaminski reports that Mr. Stakem assumed
that his license plate number had been retrieved from a video camera near
the Federal Building. If Mr. Stakem was incorrect in his thinking about having
been identified as a result of surveillance camera videotapes, Kaminski never
disabused Mr. Stakem of that fact.48
B. Houston Chronicle Article.
FBI Defendants attack upon theHouston Chronicle article is also
distraction designed to divert the Courts attention from the real issue concerning
this videotape which is: why FBI Defendants have not produce the original of
Trooper Hangers videotape of McVeigh arrest on the morning of April 19, 1995?
FBI Defendants have asked the Court to strike part of theHouston Chronicle
article describing the contents of the Hanger videotape, which differs markedly
48 Doc. 91.
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from the videotape actually produced to Plaintiff.49 Based upon information
received from an unidentified federal investigator theHouston Chronicle article
describes the videotape as showing a brown pick-up truck own by Colbern
traveling with McVeigh away from the Murrah Building blast site; whereas the
tape actually provided to Plaintiff by FBI Defendants only shows McVeighs
abandoned yellow Mercury parked beside the roadway following his arrest that
morning. The following facts are relevant to FBI DefendantsMotion to Strike
portions of theHouston Chronicle article:
1. When Plaintiff requested to see the original Hanger videotape,
FBI Defendants refused.50 In theirMotion for Summary Judgment, FBI
Defendants suddenly claimed that they only had an edited copy of that tape and
that the original Trooper Hanger video was kept by the Oklahoma Highway
Patrol.51 In fact, Mr. Hardy represented to the Court that [t]he original Hanger
video is retained by the Oklahoma Highway Patrol. 52 Thereafter in a subsequent
49
Doc. 53.50 Exhibit 6.
51Hardy Dec. Doc. 61-62, p. 36.
52 Doc. 61-2, 36.
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Declaration, Mr. Hardy said that his staff have no reason to believe that the tape
that was located is not a duplicate of the original Hanger tape, which was returned
to the Oklahoma Highway Patrol. Mr. Hardy likewise stated that no
documentation was found regarding this tape. 53
2. However, it is undisputed from FBI evidence control documents
that FBI Defendants took possession of the original Hanger videotape on April 28,
1995, and there is no evidence that it was ever returned.54 When these facts were
presented by Plaintiff to FBI Defendants, Mr. Hardy responded with a Fifth
Supplemental Declaration filed June 15, 2012, in which he states that he believes
Trooper Hanger now supposedly has the original videotape, but cannot confirm
that fact.55
53 Doc. 66-1, p. 4 fn. 2.
54 See Doc. 91, pp. 37-41, 45 and 46.
55 Doc. 104-2, p. 11. Mr. Hardys statement that the FBI Defendants returned the
original Hanger videotape to the Oklahoma Highway Patrol is also inconsistent with his
repeated representations to the Court that all of the OKBOMB evidence is in a warehouse
in Oklahoma City. It is likewise incredible that the FBI would have turned over the
original documentary evidence of McVeighs arrest and probable cause therefor toanyone, especially considering the potential for appeals, Motions for Post Conviction
Reliefand/or other proceedings that could go on for years. It is even more incredible that
FBI Defendants would have done so without keeping a record of the release of this
evidence, which would be a violation of the FBIs evidence chain of custody polices and
procedures. Doc. 91, pp. 2-4.
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3. FBI Defendants contend that this article was made part of the
record in this case on August 18, 2010, when it was submitted by Plaintiff in
support of hisRule 56 Motion.56 FBI Defendants are mistaken about that,
however. The article was first filed of record on April 1, 2010, in support of
Plaintiffs Motion to Compel.57
4. FBI Defendants contend that several statements in theHouston
Chronicle article should be stricken because they are hearsay and/or because the
article does not contain any indicia of trustworthiness so as to be admissible under
Federal Rule of Evidence 807.58
5. TheHouston Chronicle article about the Hanger videotape is
set out below in its entirety, with the portions that FBI Defendants have asked to
be stricken highlighted in blue:
A third man wanted in the Oklahoma City bombing has been
identified as Steven Colbern, a fugitive from a previous firearms
charge.
56 Doc. 105, p.2 1.
57 Doc. 51-3, p.2.
58 Doc. 106, pp. 3-4.
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Colbern, aged 35 or 36, is described as 6-foot-1 and 195 pounds
with green eyes, which roughly matches the description of John
Doe II.
Law enforcement sources said Thursday night that Colbern was
identified through his brown pickup. It was captured, by chance,
on video taken from the state trooper's car that stopped Timothy
McVeigh for speeding only 80 minutes after the blast.
That trooper had a hell of a day, a federal investigator said.
An automatic camera in the car of Trooper Charles Hanger was
taping the arrest of McVeigh. In the background was the image
of the pickup, which also pulled over while McVeigh was being
questioned.
Sophisticated enhancement techniques were used to improve the
video until investigators could read the license plate number.
The truck, registered to Colbern, contained traces of
ammonium nitrate, believed to be the main explosive
ingredient used in the bombing.59
Colbern's age is uncertain. His address is unknown, but he
shared a mail drop with McVeigh in Kingman, Ariz., sources
said. The truck was found parked outside an abandoned mobile
home in Kingman.
Colbern already was wanted on a federal firearms charge,
officials said. He was arrested last summer in San Bernadino,
Calif., for carrying a gun with a silencer. He was allowed to postbail but skipped.60
59Id. (emphasis added).
60 Exhibit 1 hereto, p. ..
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6. But indicia of trustworthiness can come from contemporaneous
records prepared by FBI Defendants and other Federal agencies, which
overwhelmingly support, just as stated in theHouston Chronicle article, the
presence of that pickup truck traveling with McVeigh on the morning of April 19,
1995, including its presence at the arrest of McVeigh shortly after the bombing by
Oklahoma Highway Patrolman Charles Hanger.
7. An evidentiary Time line of what occurred on the morning of
Wednesday, April 19, 1995 was prepared by the Secret Service. A portion of this
Time line to which FBI Defendants have not objected, states that:
A catering truck driver who was traveling east just prior
to the explosion noticed the Ryder truck in front of theFederal Building and saw two men leaving the vicinity of the
truck and crossing the street heading for a brown pickup
truck.61
8. Of major significance, the Time line states that [a] second
witness has been identified who observed McVeighs traffic stop on 04-19-95.
The witness said that a pickup truck was in the vicinity of the arrest, turned
61 Doc. 98-3, pp. 5-6. The Time line likewise clearly documents the link that FBI
Defendants had established between McVeigh and Colbern with in a few days following
the Bombing.
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around and passed McVeighs vehicle as he was being handcuffed.62 More
importantly, as previously noted a May 2, 1995 Time line entry records that: FBI
has obtained a videotape from the OK state police troopers vehicle of the
vehicle stop of subject McVeigh and are attempting to identify passing
vehicles.63
9. FBI documents also reveal that on April 19, 1995, immediately
following the bombing of the Murrah Building, John Kuper observed McVeigh in
his yellow Mercury and a brown pickup truck leaving the area.64 More
importantly, later that morning, another witness, Kevin Brown, observed
Highway Patrolman Hanger pull over McVeigh and noted that a brown pickup
truck also stopped in response to the Officers signal. Brown admitted that is
was speculation on his part, but he thought that Timothy McVeigh and the
brown pick up truck were traveling together.65
62 Exhibit 1, pp. 118-119.
63Id. at p. 108 (emphasis added).
64 Doc. 70-12 (emphasis added).
65 Doc. 70-13 (emphasis added).
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C. Cooley Declaration.
FBI Defendants have asked the Court to strike part of Joe Bradford
CooleysDeclaration wherein he describes the operation of the Murrah Building
surveillance cameras and videotape recording system just prior to the Bombing.
FBI Defendants contend that this evidence is either hearsay or somehow
irrelevant.66 The following facts are relevant to FBI DefendantsMotion to Strike
portions of the CooleyDeclaration:
1. FBI Defendants contend that Mr. CooleysDeclaration was made
part of the on August 18, 2011when it was submitted by Plaintiff in support of his
Rule 56 Motion.67 But, FBI Defendants are once more mistaken as to when this
evidence became part of the record in this case.. Mr. CooleysDeclaration was
first filed of record on March 29, 2010, in support of Plaintiffs Motion to Compel
production of Murrah Building surveillance tapes.68
2. Mr. CooleysDeclaration is set out below in its entirety, with
66 Doc. 106, pp. 6-8.
67 Doc. 105, p.3 3.
68 Doc. 49-4.
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the portions which FBI Defendants have asked to be stricken based upon hearsay
or relevancy highlighted in blue:
In the 1990's, I had a security and private investigators
license with the Council on Law Enforcement Education and
Training. From 1994 to 1996, I was employed as a Security
Captain and private investigator for Profile International
Security Services (PFI).
PFIprovided security and investigative work for
businesses and individuals. My duties with PFIincluded,among other things, the hiring, training and supervision ofPFI
security officers. I also assisted PFIin preparing bids to
customers for PFIs security services.
In early 1995, within three months PRIOR to the Alfred
P. Murrah Federal Building bombing on April 19, 1995, PFI
was in the process of preparing a bid for the security services
contract at the Murrah Federal Building in downtown Oklahoma
City, Oklahoma.
I directly participated in PFIs pre-bid investigation for
the security services contract at the Murrah Federal Building. In
doing so, I repeatedly met with Tom Hunt of the Federal
Protective Services.
The Federal Protective Services, now part of the
Department of Homeland Security, provides law enforcementand security services to federally owned and leased facilities.
Mr. Hunt was head of the Oklahoma City Office of Federal
Protective Services and the person in charge of security for the
Murrah Federal Building.
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My purpose for meeting with Mr. Hunt was to learn
about the daily responsibilities of the security staff at the Murrah
Federal Building in order to prepare PFIs bid. My contacts with
Mr. Hunt involved a thorough walk through of the Murrah
Federal Buildings security system, including the video
surveillance cameras used to monitor the Building.
Under Mr. Hunts direction, I reviewed the Murrah
Federal Buildings security system, especially the video
surveillance cameras. I spent many hours with Mr. Hunt at this
task.I met, for example, with Mr. Hunt at his office in the
United States Federal Courthouse, which is located directly
across the street and South of the Murrah Federal Building.
In Mr. Hunts office, I observed several computer screens and
monitors that were receiving real-time images from cameras at
the Murrah Federal Building.
On these monitors, I could see a complete view of the
North side of the Murrah Federal Building and NW 5th Street,
which the Building faced. Those views were from cameras
placed at the Northwest and Northeast corners of the Murrah
Federal Building.
I later toured the Murrah Federal Building and observed
these cameras. Those two cameras provided a clear view of the
North entrance to the Murrah Federal Building, including the
street and sidewalk. I understood from my conversations withMr. Hunt that the video surveillance cameras and recording
equipment was being provided by ADT Security Services, Inc
(ADT).
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At that time, ADTs offices were located approximately
five blocks from the former site of the Murrah Federal Building
on Broadway Avenue just north and east of downtown
Oklahoma City. To the best of my memory, Mr. Hunt said that
the VCR tape decks used to record the surveillance camera
images were located atADTs offices. He also may have said
that the recordings were done at his office. But either way, I
understood from conversations with Mr. Hunt that the Murrah
Federal Building surveillance cameras were being recorded on
videotape.
In addition to inspecting the monitors at Mr. Huntsoffice, Mr. Hunt also walked me through an underground tunnel
from the United States Courthouse to the Murrah Federal
Building. In doing so, we walked northbound into one level of a
multi-level underground parking ramp. Just before we came to
the entrance of the Murrah Federal Building via this parking
ramp we stopped at a room located on the east side of the tunnel
just north of the street entrance into the underground parking
area.
There was a metal detector in the room. Upon entry, we
were searched by individuals who Mr. Hunt said were Deputy
U.S. Marshals. After being searched, we were allowed to enter
the room. There were about five (5) Deputy Marshals in this
room. There were also security camera monitors in this room
showing the North entrance to the Murrah Federal Building.
These monitors also showed scenes from the surveillance
cameras placed inside of the Murrah Building.
I asked one of the Marshals how he liked working for the
Marshals Service. He told me that they were a private Deputy
U.S. Marshals service based out of Denver, Colorado and were
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not associated with the Federal Marshals Service. I also asked
if they were authorized to carry firearms or make arrests off site
and I was told no. I thought this was odd but Mr. Huntconfirmed that this was the case. We continued our walk and
entered the Murrah Building and proceeded on a complete tour
of that Building, including the Social Security Office, the HUD
offices and Americas Kids Daycare Center.
On April 19, 1995, I was at the scene of the bombing
within minutes of the blast. I arrived so quickly at the bombing
scene because I was having breakfast at a restaurant about four
blocks away from the Murrah Federal Building. When I arrived
on the scene, I noticed that the street entrance to the
underground parking lot (on the east side of the Murrah Federal
Building) and just south of the Marshals Station I had recently
visited, was filled up with bricks and debris from the blasts. I
never heard what happen to the people who were in the
Marshals Station that day. I presumed they had been killed.
Ultimately,PFIwas not awarded the security servicescontract for the Murrah Federal Building. Had it been
given that contract, I and otherPFIemployees would have
been at the Marshals station when the bomb exploded.
Consequently, that inspection of the Murrah Federal
Buildings security system will forever remain vivid in my
mind as will the location of the security cameras, monitoring
screens and other equipment that I had seen.69
From my knowledge of the video surveillance security
system in place at the Murrah Federal Building, and my presence
69Id. (emphasis added).
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on scene just after the bomb exploded, I have no doubt that the
two external cameras on the Northwest and Northeast corners of
that Building would certainly have recorded the entire event.Those cameras would even have recorded the delivery of the
bomb to the Murrah Federal Building in a Ryder truck and, most
importantly, those cameras would also have recorded everyone
who exited that truck prior to the explosion. Because of their
distance from the Murrah Federal Building, ADTs offices were
not destroyed or otherwise damaged in the bombing, which
means that the videotapes should still exist.70
D. Browning Declaration.
FBI Defendants have asked the Court to strike part of former Oklahoma
City Police Officer Don BrowningsDeclaration wherein he, too, describes the
operation of the Murrah Building surveillance cameras and videotape recording
system prior to the Bombing. FBI Defendants contend that this evidence is
likewise irrelevant and that Officer Browning lacks the foundation to describe
what he observed about the Murrah Building surveillance-security system.71 The
following facts are relevant to FBI Defendants Motion to Strike one sentence from
the Browning Declaration article:
70 Doc. 63-2.
71 Doc. 104, pp. 8-9.
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1. FBI Defendants contend that Officer BrowningsDeclaration was
made part of the record on August 18, 2011when it was submitted by Plaintiff in
support of hisRule 56 Motion.72 But, FBI Defendants are once more mistaken as
to when this evidence became part of the record in this case. Officer Brownings
Declaration was first filed of record on March 29, 2010, in support of Plaintiffs
Motion to Compel production of Murrah Building surveillance tapes.73
2. BrowningsDeclaration is set out below, with the portions
which FBI Defendants have asked to be stricken highlighted in blue:
I am currently retired from the Oklahoma City Police
Department. However, during the time period of 1990 until after
the bombing of the Alfred P. Murrah Federal Building in
Oklahoma City, Oklahoma I was a member of the OklahomaCity Police Department.
During the early 1990's, I was part of the Departments
Solo Motorcycle Squad. Part of my duties as a motorcycle
patrol officer was to provide security for the President and Vice
President of the United States of America, and others under the
protection of the United States Secret Service, if and when they
visited Oklahoma City. My specific duties involved protecting
the motorcade carrying these federal officials.
72 Doc. 105, p.3 3.
73 Doc. 49-5.
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In carrying out these duties, I worked with the Secret
Service, which had its offices in the Murrah Federal Building. I,
in fact, received briefings and training from the Secret Servicewith respect to providing security for those motorcades and
federal officials.
After that training, we were usually allowed a courtesy
tour of the facilities which would involved a review of the
surveillance cameras at the Murrah Federal Building, including
the cameras mounted on the exterior of the Building. This walk
through was conducted by a Secret Service Agent and included a
visit to the offices of the Federal Protective Services, which I
understood to be responsible for providing law enforcement and
security services to the Murrah Federal Building.
The offices the Federal Protective Services were located
in the United States Courthouse. While in the offices of the
Federal Protective Services, I was shown the television cameras
monitoring the entrances to the Murrah Federal Building and the
videotape decks on which the images from those cameras wererecorded. Those cameras showed, in real time, the entrances to
the Murrah Building as well as NW 5th Street, which the
Building faced.
On April 19, 1995, I was part of the Oklahoma City
Police Departments K-9 Unit. Shortly after the bomb
exploded that day destroying the Murrah Federal Building, my
dog Gunny and I were on scene assisting in the location and
rescue of people trapped by the debris from the blast.
While assisting in the rescue of a woman trapped in the
rubble, Gunny and I were ordered out of the Building by an
FBI agent. The other non-federal rescuers were also ordered to
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leave the Building with me, which I thought was strange given
the carnage and need to move quickly in hopes of locating and
hopefully saving more victims trapped by the blast.
That same morning, I observed men wearing jackets
with FBI printed on the back removing the surveillance
video cameras from the exterior of the Murrah Federal
Building. I thought this was part of the FBIs evidence gathering
or chain of custody procedures since those exterior cameras
would have shown and recorded delivery of the bomb in a Ryder
truck that morning as well as the person or persons who exited
that truck.74
I knew from my training and experience as a police
officer that an investigation of the bombing and prosecution of
those involved would require not only preserving the videotapes
of the event but also require preserving the cameras and tape
decks by which those videotapes were made. Nevertheless, I
did think it odd that the FBIs removal of those cameras was
taking place while many people were still trapped alive in the
rubble of the Murrah Federal Building and so many of us
were working desperately to find them.75
74 Id. (emphasis added). That FBI Defendants took the Murrah Building cameras
as described by Officer Browning is already clearly documented in the record of this case.
See Doc. 63-8. More importantly, FBI Defendants do not dispute this fact. Rather, they
attempt to trivialize the incident by claiming that: It is just as possible that FBI agents
would have collected the cameras even if there were no recorded footage, or that the
agents Mr. Browning claims to have seen might have collected the cameras without
knowing whether there was recorded footage or not. Mr. Brownings observation ofagents on the bombing site is not probative of whether there was ever actually
surveillance footage from the Murrah Building cameras on the day of the bombing.
Doc. 106, p. 12. When these cameras were taken in to evidence, the FBI agents doing so
were required to prepare an FD-192 and a FD 302 as part of the chain of custody
procedure. See 91, pp. 2-4. Those records, however, have not been produced in response
to Plaintiffs Freedom of Information Act Request. See Doc. 23.
75 (emphasis added).
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THEMOTION TO STRIKE SHOULD BE DENIED
The issue actually framed by FBI DefendantsMotion to Strike is : whether
Plaintiff has made the necessary showing for discovery? If the Plaintiff or the
Agencys response raises serious doubts as to the completeness and good faith of the
Agencys search, discovery is appropriate. 76 FBI Defendants apparently
believe that if theirMotion to Strike is granted, Plaintiff cannot make the
necessary showing for the discovery he needs to oppose the pending Motion for
Summary Judgment. But, as Plaintiff is prepared to demonstrated in his soon to be
filed response to FBI Defendants Supplemental Memorandum,77 even without the
evidence that is the subject of theMotion to Strike, this is an appropriate case for
discovery given the public importance of the videotapes and the other admissible
evidence of FBI Defendants bad faith. Furthermore, as Plaintiff is prepared to
demonstrate herein below, the Time line, theHouston Chronicle article, Cooley
Declaration and BrowningDeclaration meet the admissible evidence requirement
76 37AAm.Jur.2dFreedom of Information Acts, 503(emphasis added).The discoverypermitted under FOIA is designed to disclose the malfeasance of the government. SeeTrentadue v. FBI, 572 F.3d 795 (10th Cir. 2009); Judicial Watch, Inc. v. United States Dept. Of
Commerce, 127 F.Supp.2d 228 (D.C. D.C. 2000).
77 Doc. 104.
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of both Federal Rule of Civil Procedure 56, which Plaintiff believes is the wrong
standard in a Freedom of Information Actcase, and the totality of the
circumstances testthat the 10th Circuit articulated in Trentadue.
Plaintiff submits that the proper standard for the Court to apply is what
appears to be a totality of the circumstances testarticulated by the 10th Circuit in
Trentadue v. FBI, 572 F.2d 794 (10th Cir. 2009). According to the Trentadue
Court, under the Freedom of InformationActthe reasonableness of FBI
Defendants search and Plaintiffs possible need for discovery depends upon the
likelihood that the search actually conducted would yield the sought-after
records/information, whether there are readily available alternatives for obtaining
the records/information, and the burden of employing those alternatives?78 A
totality of the circumstances testis also employed by the 10th Circuit to determine
probable cause for the issuance of a search warrant, which is an analogous
situation.79
Within a probable cause search warrant context, the totality of the
78Id., 572 F.2d at 798.
79 United States v. Richardson, 86 F.3d 1537 (10th Cir. 1996).
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circumstancestestmeans that the Court makes a practical, common sense analysis
of the totality of the circumstances to determine if there is a fair probability of that
evidence of a crime will be found in the place to be searched.80 If so, then the
warrant can constitutionally be issued. In the context of this case, a totality of the
circumstances testmeans that the Court makes a practical, common sense analysis
of the totality of the circumstances to determine if there is a fair probability that
FBI Defendants did not conduct an adequate search for the records/information,
and whether these materials can be found with additional searches that are not
unreasonably burdensome.
If the Court concludes that there is a fair probability that the FBI
Defendants did not conduct an adequate search and/or that the records/information
can be found with additional searches that are not unreasonably burdensome then
discovery including, but not limited to additional Court ordered manual and
computerized searches, should be allowed. More importantly, however, the same
evidentiary standards for determining the probable cause to issue a search warrant
should apply to establishing the need for discovery under the Freedom of
80Id. at 1545.
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Information Actcase.
The United States Supreme Court has made clear that there is a different
standard of proof used in obtaining a search warrant to look for evidence of a
crime than the standard governing use of any evidence found in a subsequent
criminal trial. The proof necessary to obtain a warrant need not be admissible at
trial.81 Consequently, hearsay evidence may form the basis for the issuance of a
search warrant.82 Probable cause for the issuance of a search warrant can likewise
be based upon multiple layers of hearsay.83 In order to establish the probable
cause for a warrant, it is also not necessary to reveal the identities of the
individuals providing the hearsay information.84 Thus under the Fourth
Amendments totality of circumstances standard, the evidence which FBI
Defendants now challenge would collectively support the issuance of a warrant to
search various FBI facilities for the missing videotapes. The same rationale
applied to issuance of a search warrant should likewise apply to the evidence that
81 See Jones v. United States, 362 U.S. 257, 269 (1960).
82 United States of America v. Mathis, 367 F.3d 1200, 1204-05 (10th Cir. 2004).
83 See $149,422.43 in U.S. Currency, 965 F.2d 868, 874 n.3 (10th Cir. 1992).
84Id.
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FBI Defendants are challenging in theirMotion to Strike.
The analogy to the evidentiary standards applied to the issuance of a
search warrant is even more compelling when one considers that in a Freedom of
Information Actcase, the requestor has no access to subpoenas or discovery tools
to obtain admissible evidence to establish the agencys bad faith. The purpose of
the discovery in a Freedom of Information Actcase is also similar to the purposes
of search warrant. With a search warrant, the Government is looking for evidence
of a crime for use in a later prosecution. Similarly, in a Freedom of Information
Actcase the purpose of the discovery is to obtain evidence of the Governments
bad faith.85 In both situations, the purpose is to look for evidence necessary to
prove a crime or other wrongdoing in a subsequent proceeding. And, with respect
to a subsequent proceeding, the Federal Rules of Evidence would apply, but they
should not apply at the preliminary stage of trying to obtain the evidence to prove
a crime in the case of a search warrant or the need for discovery in a Freedom of
Information Actsituation.
85 See Giza v. Secretary of Health, Education and Welfare, 628 F.2d 748, 7511 (1st
Cir. 1980)(whether a thorough search for the records has take place);Niren v. INS, 103
F.R. D. 10(D.C. Or. 1984)(to determine adequacy of agency search and basis for claims
of exemptions).
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Yet, even setting aside the totality of the circumstances evidentiary
standard applicable to search warrants, FBI DefendantsMotion to Strike is still
flawed. To begin with, FBI Defendants have waived any objection they might
otherwise have had to the Time line evidence and other challenged evidence
because they did not move to strike any of this evidence until long after the
Courts May 13, 2011, Order. Neither did the Courts Orderpermit FBI
Defendants to submit additional evidence permission to bring their belated
Motion to Strike. But even if that were not the case, the Time line statements
attributable to the FBI are evidentiary admissions, not hearsay.86
And, as a catchall, the Time line statements meet the requirements ofRule
807 because they are offered as evidence of a material fact, existence of
videotapes in FBI Defendants possession which show the bomb being delivered
to the Murrah Building and those involved; this evidence is more probative on the
issue of the existence of such tapes than any other evidence that Plaintiff could
reasonably procure without the benefit of formal discovery options; and the
86 See Federal Rule of Evidence 801(2);Burkey v. Ellis, 483 > Supp. 897, 891 fn.
12 (N.D. Ala. 1979);Murray v. U.S., 73 F.3d 1448 (7th Cir. 1996);Lang v. City of
Kotzebue, 982 P.2d 1270, 1273 (Ak. 1999).
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admission of this evidence serves the interest of justice as well as the public
interest in the disclosure of those tapes under the Freedom of Information Act.87
These same non-hearsay arguments apply to theHouston Chronicle article even if
the statements came from an unidentified FBI agent, and to the Cooley
Declarations. references to the statements of Mr. Hunt of Federal Protective
Services, who was responsible for security at the Murrah Building.
Likewise,Rule 807 is especially applicable to theHouston Chronicle
article and to Mr. CooleysDeclaration given how strongly corroborated the
article is by FBI records documenting the numerous witnesses who observed a
brown pickup truck traveling with McVeigh immediately after the Bombing, as
well as the Time lines reference to the fact that the FBI has obtained a
videotape from the OK state police troopers vehicle of the vehicle stop of
subject McVeigh and are attempting to identify passing vehicles; 88 and by
Officer Brownings observation of the videotape recording system.
FBI Defendants relevance challenges to Cooley and Brownings
87 See Federal Rule of Evidence 807.
88 Exhibit 1 hereto at p. 108 (emphasis added).
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Declarations is also wide of the mark..The relevance of the fact that the images
from the Murrah Building surveillance cameras were being recorded before the
Bombing is obvious: The tapes exist and should have been found had a good faith
search been conducted..
FBI Defendants foundational challenge to Officer Brownings
Declarations is easily disposed of, too: It certainly does not require an expert to
describe what Browning said he personally observed, which were the images from
the Murrah Building surveillance cameras being transmitted to the offices of the
Federal Protective Services and the videotape decks on which those images were
being recorded. The fact that this occurred during the early 1990s does not make
Officer Brownings observations irrelevant. Rather, Brownings observations
coupled with Mr. CooleysDeclaration make it very clear that the Murrah
Building surveillance cameras were being recorded and that the tapes Plaintiff
seeks exist.
DATED this 25th day of June, 2012.
/s/ jesse c. Trentadue
Jesse C. Trentadue
Pro Se Plaintiff
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CERTIFICATE OF SERVICE
I hereby certify that on the 25th day of June, 2012, I electronically filed the
foregoing MEMORANDUM with the U.S. District Court. Notice will automatically be
electronically mailed to the following individuals who are registered with the U.S.
District Court CM/ECF System:
KATHRYN L. WYER, Esq.
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
JARED C. BENNETT, Esq.
Assistant United States Attorney
185 South State Street, #300Salt Lake City, Utah 84111
Attorneys for Defendants
/s/ jesse c. trentadue
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