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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Criminal Action No. 96-CR-68

UNITED STATES OF AMERICA,

Plaintiff,

vs.

TERRY LYNN NICHOLS,

Defendant.

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REPORTER'S TRANSCRIPT
(Trial to Jury: Volume 128)
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Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 12:45 p.m., on the 16th day of
December, 1997, in Courtroom C-204, United States Courthouse,
Denver, Colorado.
Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
APPEARANCES
PATRICK RYAN, United States Attorney for the Western
District of Oklahoma, 210 West Park Avenue, Suite 400, Oklahoma
City, Oklahoma, 73102, appearing for the plaintiff.
LARRY MACKEY, SEAN CONNELLY, BETH WILKINSON, GEOFFREY
MEARNS, JAMIE ORENSTEIN, and AITAN GOELMAN, Special Attorneys
to the U.S. Attorney General, 1961 Stout Street, Suite 1200,
Denver, Colorado, 80294, appearing for the plaintiff.
MICHAEL TIGAR, RONALD WOODS, ADAM THURSCHWELL, REID
NEUREITER, and JANE TIGAR, Attorneys at Law, 1120 Lincoln
Street, Suite 1308, Denver, Colorado, 80203, appearing for
Defendant Nichols.
* * * * *
PROCEEDINGS
(Reconvened at 12:45 p.m.)
THE COURT: Please be seated.
I'll have a short side bar after the instructions, as
we discussed.
MR. TIGAR: Yes, your Honor.
(Jury in at 12:46 p.m.)
JURY INSTRUCTIONS
THE COURT: Members of the jury, now that you have
heard the evidence and the arguments, the time has come to
instruct you as to the law governing you in this case. You
each will have a copy of these instructions for your reference
during deliberations.
Although you as jurors are the sole judges of the
facts, you are duty bound to follow the law as stated in the
instructions of the Court and to apply the law so given to the
facts as you find them from the evidence before you.
Counsel have quite properly referred to some of the
governing rules of law in their arguments. If, however, any
difference appears to you between the law as stated by counsel
and that stated by the Court in these instructions, you are of
course to be governed by the instructions.
You're not to single out one instruction alone as
stating the law, but you must consider the instructions as a
whole.
Neither are you to be concerned with the wisdom of any
rule of law. Regardless of any opinion you may have as to what
the law ought to be, it would be a violation of your sworn duty
to base a verdict upon any other view of the law than that
given in the instructions of the Court. You have no right to
disregard or give special attention to any one instruction, or
to question the wisdom or correctness of any rule I may state
to you. You must not substitute or follow your own notion or
opinion as to what the law is or ought to be. It is your duty
to apply the law as I explain it to you, regardless of the
consequences.
You have been chosen and sworn as jurors in this case
to try the issues of fact presented to you. You are to perform
this duty without bias or prejudice as to anyone. The law does
not permit jurors to be governed by sympathy, prejudice or
public opinion. You are expected to carefully and impartially
consider all of the evidence, follow the law as stated by the
Court and reach a just verdict.
In determining the facts, you must rely upon your own
recollections of the testimony heard by you. What the lawyers
have said in their opening statements, in their closing
arguments, in their objections, or in their questions is not
evidence. Bear in mind that the question put to a witness is
not the evidence. It is the answer which is evidence. Nothing
that I may have said during this trial or may say in these
instructions should be considered as evidence or as any comment
on the evidence. The stipulations which were read to you are
included in the evidence. The exhibits received are also part
of evidence. You will have access to all of the exhibits
during your deliberations, excepting those used only for
demonstrative purposes to illustrate some of the testimony.
Exhibits offered and refused are not evidence and must be
disregarded.
You are the sole and exclusive judges of the facts.
The rulings I have made, my comments and questions to counsel,
and any questions I have asked of witnesses during the trial
must not be taken as expressing any opinions about the facts in
this case. You are expressly instructed that the Court has no
opinion as to what the verdict should be in this case.
As I told you many times during this trial, your
verdict must be based solely on the evidence presented in this
courtroom and in accordance with the law given in these
instructions. You must completely disregard anything which you
have read, seen or heard outside this courtroom relating to the
issues in this trial. It would be fundamentally unfair to
consider anything not in evidence because the lawyers have no
opportunity to challenge the accuracy of it or to make any
comment about it. You must not allow public opinion to play
any role in your deliberations. In short, you would violate
your oaths as jurors if you permitted yourselves to be
influenced in any manner by anything said or written by those
who do not have any responsibility for a fair trial of these
charges.
As I told you before the trial began, the attorneys
have the duty, as advocates for their respective sides, to make
objections and ask for court rulings on the admissibility of
evidence. You must not consider or discuss those objections or
draw any inferences or conclusions from the Court's comments
and rulings. The rules of evidence provide important
limitations on what the jury can fairly consider in deciding
the facts in any case. The lawyers share with the Court the
obligation to apply and enforce those rules by raising issues
of admissibility. The attorneys also have a duty to prepare
for trial and it is common practice for them to interview
witnesses and to provide discovery information to opposing
counsel in advance of the trial. Witnesses have the freedom to
choose whether to grant requests for interviews.
The charges in this case are contained in an
indictment returned by a federal grand jury in Oklahoma. An
indictment is nothing more than a document that gives notice of
the charges that the Government intends to prove. It is not
evidence of any kind against the defendant.
The basic principle of our law is that the defendant,
Terry Lynn Nichols, is presumed to be innocent of each and
every charge brought against him in this indictment.
Mr. Nichols' pleas of not guilty put in dispute everything that
is alleged in the indictment. The presumption of innocence
stays with the defendant throughout the trial and entitles him
to a verdict of not guilty, unless and until you, the jury,
find that the evidence received during the trial has
established each and every essential element of the crimes
charged beyond a reasonable doubt.
So the presumption of innocence means that Terry Lynn
Nichols must be given the benefit of any reasonable doubt of
his guilt that may remain in the minds of the jurors after they
have given careful and impartial consideration to all of the
evidence in the case.
The burden is always upon the Government to prove
guilt beyond a reasonable doubt. This burden never shifts to a
defendant. The law never imposes on a defendant in a criminal
case the burden or duty of calling any witnesses or producing
any evidence. The defendant is not even obligated to produce
evidence by cross-examining the witnesses for the Government.
A reasonable doubt is a doubt based upon reason and
common sense -- the kind of doubt that would make a reasonable
person hesitate to act. Proof beyond a reasonable doubt must,
therefore, be proof of such a convincing character that a
reasonable person would not hesitate to rely and act upon it in
the most important of his or her own affairs. A defendant is
not to be convicted on mere suspicion or conjecture.
A reasonable doubt may arise not only from the
evidence produced, but also from the lack of evidence. Since
the burden is always on the prosecution to prove the accused
guilty beyond a reasonable doubt of every element of the crime
charged, a defendant has the right to rely upon failure of the
prosecution to establish such proof. A defendant may also rely
upon evidence brought out on cross-examination of witnesses for
the prosecution.
Unless the Government proves, beyond a reasonable
doubt, that Terry Nichols has committed each and every
essential element of any offense charged in the indictment, you
must find him not guilty of that offense. If the jury views
the evidence in the case as reasonably permitting either of two
conclusions -- one of innocence, the other of guilt -- the jury
must, of course, adopt the conclusion of innocence.
A separate offense is charged in each count of the
indictment. Each charge, and the evidence pertaining to it,
should be considered separately by the jury. The fact that you
may find Mr. Nichols guilty or not guilty as to one of the
offenses charged should not control your verdict as to any
other offense charged.
You are here to decide whether the Government has
proved beyond a reasonable doubt that the defendant is guilty
of the crimes charged. Mr. Nichols is not on trial for any
act, conduct or offense not charged in the indictment.
The first count of the indictment alleges conduct that
may be criminal but is not one of the specific crimes charged
against Mr. Nichols. The Government is permitted to make such
allegations in an indictment. However, it is only the crimes
charged in the eleven counts that are on trial here.
Regardless of what you find with respect to these allegations
of criminal conduct in Count One, you must acquit Mr. Nichols
on any count if you have a reasonable doubt as to whether all
of the essential elements of the particular crimes charged in
that count have been proved.
It is alleged in Count One that, beginning on or about
September 13, 1994, and continuing until on or about April 19,
1995, at Oklahoma City, Oklahoma, and elsewhere, defendant
Terry Lynn Nichols intentionally and willfully conspired with
Timothy James McVeigh, and with others unknown, to use a weapon
of mass destruction, namely an explosive bomb placed in a truck
(a "truck bomb") against persons within the United States and
against property that was owned and used by the United States
and by a department and agency of the United States, namely,
the Alfred P. Murrah Federal Building at 200 N.W. 5th Street,
Oklahoma City, Oklahoma, and that the objects of the conspiracy
were to kill and injure innocent persons and to damage property
of the United States. The indictment goes on to allege means
and methods used by Terry Nichols and Timothy McVeigh to
further the objects of the conspiracy. You will have copies of
the indictment with you during your deliberations.
The statute referred to in Count One, 18 United States
Code Section 2332a, provides, in pertinent part, that "a person
who . . . conspires to use a weapon of mass destruction . . .
against any person within the United States; or against any
property that is owned, leased or used by the United States"
shall be guilty of a crime.
The indictment alleges that the conspiracy charged in
Count One began on or about September 13, 1994, and continued
thereafter until on or about April 19, 1995. Although it is
necessary for the Government to prove beyond a reasonable doubt
that the offense of conspiracy was committed on dates
reasonably near those alleged in Count One, it is not necessary
for it to prove that the conspiracy offense was committed
precisely on the dates charged.
A criminal conspiracy is an agreement to violate a
federal law. It is an independent offense which is separate
and distinct from the actual violation of any specific federal
statute that may or may not have happened as a result of the
conspiracy.
To establish the Count One offense of conspiring to
use a weapon of mass destruction against people and government
property, the prosecution must prove each of the following
three elements beyond a reasonable doubt:
(1) That two or more persons, including the defendant,
Terry Nichols, agreed to use an explosive bomb in a truck as a
weapon of mass destruction against a federal building and the
persons inside it;
(2) That the defendant, Terry Lynn Nichols, knowingly
and voluntarily became a member of the conspiracy, with the
intent to advance or further its objectives; and
(3) That achievement of the objectives of the
conspiracy would have substantially affected interstate
commerce.
If you are not convinced beyond a reasonable doubt of
any one of these elements of the offense, you must acquit
Mr. Nichols of this charge in the indictment.
A criminal conspiracy is an agreement or a mutual
understanding knowingly made or knowingly entered into by at
least two people to violate the law by some joint or common
plan or course of action.
A conspiracy or agreement to violate the law, like any
other kind of agreement or understanding, need not be formal,
written, or even expressed directly in every detail.
To prove the existence of an illegal agreement, the
Government is not required to produce a written contract
between the parties or even produce evidence of an express oral
agreement spelling out all of the details of their
understanding. Nor is it required that the Government prove
the identity of all of the members of the conspiracy or that
all of the means and methods of furthering the conspiracy set
out in the indictment were used or carried out.
What the Government must prove is that the defendant,
Terry Lynn Nichols, and at least one other person, did
knowingly and deliberately arrive at some type of an agreement
that they, and perhaps others, would use a weapon of mass
destruction against the Alfred P. Murrah Federal Building in
Oklahoma City and the persons in it by means of some common
plan or course of action as alleged in Count One of the
indictment. Proof of such a common understanding and
deliberate agreement among two or more persons, including the
defendant now on trial, is the key element of the charge of
criminal conspiracy.
Mere presence at the scene of alleged -- an alleged
transaction or event, or mere similarity of conduct among
various persons and the fact that they may have associated with
each other and may have assembled together and discussed common
aims or interests, do not necessarily establish proof of the
existence of a conspiracy. Also, a person who has no knowledge
of a conspiracy, but who happens -- happens to act in a way
which advances some object or purpose of the conspiracy does
not thereby become a conspirator.
But a person may join in an agreement or
understanding, as required for conviction, without knowing all
the details of the agreement or understanding, and without
knowing who all the members are. Further, it is not necessary
that a person agree to play any particular part in carrying out
the agreement or understanding. A person may become a member
of a conspiracy even if that person agrees to play only a minor
part in the conspiracy, as long as that person has an
understanding of the unlawful nature of the plan and
voluntarily and intentionally participates in it as something
he wants to bring about.
Before you may find that Mr. Nichols became a member
of the conspiracy charged in Count One of the indictment, the
evidence in the case must show beyond a reasonable doubt that
Mr. Nichols knew the purpose or goal of the agreement or
understanding and deliberately entered into the agreement
intending, in some way, to accomplish the goal or purpose by
this common plan or joint action. Merely associating with
others and discussing common goals, mere similarity of conduct
between or among such persons, merely being present at the
place where a crime takes place or is discussed, or even
knowing about criminal conduct does not, of itself, make
someone a member of the conspiracy or a conspirator.
Individuals, including Mr. Nichols, have the right
under the First Amendment to the Constitution to assemble and
discuss even the most unpopular ideas, including discussion of
unlawful acts, and such assembly and discussion does not by
itself establish an unlawful agreement. Expressions of
sympathy and support for those who commit unlawful acts do not,
without more, constitute entry into an unlawful agreement, nor
does vigorous criticism of the government. One may belong to a
group, knowing that some of its members commit illegal acts,
without having entered into an agreement that these unlawful
acts be committed. A frank expression or exchange of political
views or opinions, no matter how vehement, radical or
unpopular, does not, without more, constitute an unlawful
agreement.
Evidence has been received in this case that Timothy
McVeigh, who is alleged in Count One of the indictment to be a
co-conspirator of Terry Nichols, has done or said things during
the existence or life of the alleged conspiracy in order to
further or advance its goal.
Such acts and statements of Mr. McVeigh may be
considered by you in determining whether or not the Government
has proven its allegations in the indictment against
Mr. Nichols.
To the extent that these acts were performed and these
statements made outside the presence of Mr. Nichols and even
done or said without his knowledge, these acts or statements
should be examined with particular care by you before
considering them against Mr. Nichols, who did not do the
particular act or make the particular statement.
Count One alleges an illegal agreement to use a
"weapon of mass destruction." That is a legal phrase that is
also applicable to Count Two. A "weapon of mass destruction"
means any "destructive device" that is designed or redesigned
for use as a weapon. The term "destructive device" includes
any explosive bomb. To determine whether it was designed or
redesigned as a weapon, you may consider the physical structure
of the device, the method of its normal operation, and the
intent with which it was constructed.
The third and final element of Count One is that the
objectives of the conspiracy would substantially have affected
interstate commerce. A substantial effect on interstate
commerce is also an element of Count Two. You're instructed
for purposes of Counts One and Two that a crime substantially
affects interstate commerce if it substantially interferes
with, changes, or alters the movement or transportation or flow
of goods, merchandise, money, or other property between one
state and another. The necessary connection with interstate
commerce may be provided if you find there was a substantial
disruption of the operations of federal government agencies
caused by destruction of a building housing them.
Count Two alleges that, on or about April 19, 1995,
the defendant, Terry Lynn Nichols, "did knowingly,
intentionally, willfully and maliciously use, aid and abet the
use of, and cause to be used a weapon of mass destruction,
namely an explosive bomb placed in a truck, against persons
within the United States . . . ."
The relevant statute, 18 United States Code Section
2332(a), provides in pertinent part that "a person who
uses . . . a weapon of mass destruction . . . against any
person within the United States" shall be guilty of a crime.
To establish the Count Two offense of using a weapon
of mass destruction, the Government must prove four elements
beyond a reasonable doubt:
(1) That the defendant, Terry Lynn Nichols, used, or
aided an abetted the use of, a weapon of mass destruction;
(2) The weapon of mass destruction was used against
persons within the United States;
(3) That the use of the weapon of mass destruction
against persons within the United States substantially affected
interstate commerce; and
(4) That the defendant acted knowingly, intentionally,
willfully and maliciously.
Count Three alleges that, on or about April 19, 1995,
the defendant, Terry Lynn Nichols, "did knowingly,
intentionally, willfully and maliciously damage and destroy,
aid and abet the damage and destruction of, and cause to be
damaged and destroyed, by means of an explosive, namely, an
explosive bomb placed in a truck, a building and other personal
and real property in whole and in part owned, possessed and
used by the United States, that is, the Alfred P. Murrah
Federal Building, 200 N.W. 5th Street, Oklahoma City,
Oklahoma . . . ."
The relevant statute, 18 United States Code Section
844(f), provides in pertinent part that: "Whoever maliciously
damages or destroys . . . by means of fire or an explosive, any
building . . . in whole or in part owned, possessed, or used
by, or leased to, the United States" shall be guilty of a
crime.
To establish the Count Three offense of destruction of
federal property by explosive, the Government must prove three
elements beyond a reasonable doubt:
(1) That the defendant damaged or destroyed a
building, or aided and abetted the damage or destruction of a
building, by means of an explosive bomb;
(2) That the defendant acted knowingly, intentionally,
willfully and maliciously; and
(3) That the building in whole or in part was owned,
possessed, or used by or leased to the United States.
For purposes of Count Three, the term "explosive"
means gun powders, powders used for blasting, all forms of high
explosives, blasting materials, detonators, and other
detonating agents, smokeless powders, and any chemical
compounds, mechanical mixture, or device that contains any
oxidizing and combustible units, or other ingredients, in such
proportions, quantities, or packing that ignition by fire, by
friction, by concussion, by percussion, or by detonation of the
compound, mixture or device or any part thereof, may cause an
explosion.
The term "intentionally," as used in these
instructions, means that the Government must have proven to you
beyond a reasonable doubt that the act was done with the
purpose to do the unlawful act or cause the unlawful result.
The term "knowingly," as used in these instructions,
means that the Government must have proven to you beyond a
reasonable doubt that the act was done voluntarily and
intentionally, not because of mistake or accident.
The term "willfully," as used in these instructions,
means that the Government must have proven to you beyond a
reasonable doubt that the act was done both with the intent to
violate a known legal duty and with a criminal state of mind.
The term "maliciously" means with evil intent.
If you find the defendant, Terry Lynn Nichols, guilty
of one or more of the crimes charged in Counts One through
Three, you must then make an additional finding as to whether
the evidence proved beyond a reasonable doubt that the crime
resulted in the death of one or more of the persons named in
the indictment. These offenses are different from the murder
counts because the defendant's responsibility for the deaths of
persons killed as a result of the criminal acts charged in
Counts One through Three does not depend upon proof that he
intended to kill anyone. It is sufficient if the jury finds,
beyond a reasonable doubt, that death of one or more of these
persons was a foreseeable result of the criminal conduct
charged in these counts.
Counts Four through Eleven are first-degree murder
counts charging that, on or about April 19, 1995, Defendant
Terry Lynn Nichols did unlawfully, willfully, deliberately,
maliciously, and with premeditation and malice aforethought,
kill, and aid, abet and cause the killing of eight named
victims while those victims "were engaged in . . . the
performance of their official duties as law enforcement
officers." The victim named in Count Four is Mickey Bryant
Maroney, who was employed as a special agent of the United
States Secret Service. The victim named in Count Five is
Donald R. Leonard, who was employed as a special agent of the
United States Secret Service. The victim named in Count Six is
Alan Gerald Whicher, who was employed as an assistant special
agent in charge of the United States Secret Service. The
victim named in Count Seven is Cynthia Lynn Campbell Brown, who
was employed as a special agent of the United States Secret
Service. The victim named in Count Eight is Kenneth Glenn
McCullough, who was employed as a special agent of the United
States Drug Enforcement Administration. The victim named in
Count Nine is Paul Douglas Ice, who was employed as a special
agent of the United States Custom Service. The victim named in
Count Ten is Claude Arthur Medearis, who was employed as a
special agent of the United States Custom Service. The victim
named in Count Eleven is Paul G. Broxterman, who was employed
as a special agent of the Department of Housing and Urban
Development, Office of Inspector General.
Title 18 United States Code Section 1111 provides in
pertinent part that: "Murder is the unlawful killing of a
human being with malice aforethought. Every . . . willful,
deliberate, malicious, and premeditated killing . . . is murder
in the first degree." Title 18 United States Code Section 1114
in pertinent part, applies Section 1111 to certain federal
officials and employees.
To establish the Counts Four through Eleven offenses
of first-degree murder, the Government must prove four
essential elements beyond a reasonable doubt:
(1) That the defendant, without lawful justification,
killed or aided and abetted the killing of another human being;
(2) That the victim was a federal employee with law
enforcement functions who was killed while engaged in the
performance of official duties;
(3) That the defendant committed or aided and abetted
the killing with "malice aforethought"; and
(4) That the defendant committed or aided and abetted
the killing in a "premeditated" and deliberate manner.
The second element requires that you find: (a) that
the victim was a federal employee with law enforcement
functions; and (b) that the employee was killed while engaged
in the performance of official duties.
Each of the persons named in Counts Four through
Eleven was employed in a position having law enforcement
functions.
Whether a federal employee was engaged in the
performance of his or her official duties turns on whether the
federal officer was acting within the scope of what he or she
was employed to do, or whether, instead, the employee was
engaging in a purely personal frolic. If the employee was at
his or her place of business during regular working hours at
the time of the killing, he or she may still be found to have
been engaged in the performance of official duties even though
the employee may have been on a temporary break discussing some
personal matter or arranging for food or drink. You should
consider all of the facts and circumstances of the case in
deciding whether the Government has proven this element.
"Malice aforethought" means that the defendant must
have acted willfully and deliberately, intending to kill
another person. Whether the defendant in a homicide case acted
with malice at the time of the killing is an issue to be
decided by inferences that may or may not be drawn from all of
the surrounding facts and circumstances shown by the evidence.
The law permits, but does not require, a jury to find that the
defendant killed with malice aforethought if you find that he
acted with callous and wanton disregard for human life.
Knowledge or awareness of a victim's identity and
status as a federal law enforcement employee is not an
essential element of these murder counts. Thus, the Government
is not required to prove that the defendant knew who the
victims were or what duties they were performing in their
respective positions as federal employees. What the
prosecution must show is that the defendant intended to kill
someone and that these -- that these victims named in these
counts died as a direct result of the defendant's deliberate
acts.
Premeditation requires not only that the killing was
willful and with malice but also that the defendant formed a
specific intent to kill after planning and deliberation. This
means that the defendant must have considered and reflected
upon a preconceived killing at least long enough to give it a
second thought.
With respect to each of Counts Four through Eleven, if
the jury should unanimously find that the Government has proved
each of the essential elements beyond a reasonable doubt, the
foreperson should write "guilty" in the space provided, and the
jury's consideration of that count is concluded.
However, the law also permits the jury to determine
whether the Government has proven the guilt of a defendant for
any less serious offense which is, by its very nature,
necessarily included in the crime of first-degree murder
charged in Counts Four through Eleven.
If the jury should determine unanimously that the
Government has not proven each element of the offense charged
in that count beyond a reasonable doubt, then the foreperson
should write "not guilty" in the space provided and the jury
should then consider the innocence of Mr. Nichols for the less
serious offenses necessarily included in that count.
Furthermore, if, after reasonable efforts have been
unsuccessful, the jury is unable to reach a verdict as to
whether or not the Government has proven each element of the
offense beyond a reasonable doubt, the jury should then
consider whether or not Mr. Nichols is guilty or not guilty of
the less serious offenses which are necessarily included in
that count.
The crime of first-degree murder charged in Counts
Four through Eleven of the indictment necessarily includes two
less serious offenses: second-degree murder and involuntary
manslaughter.
Title 18 United States Code Section 1111 sets forth
the elements of second-degree murder as well as first-degree
murder. After stating that premeditation is an essential
element of first-degree murder, Section 1111 provides that:
"Any other murder is a murder in the second degree."
Thus, to establish the crime of second-degree murder,
the Government must prove three essential elements beyond a
reasonable doubt:
(1) That the defendant, without lawful justification,
killed or aided and abetted the killing of another human being;
(2) That the victim was a federal employee with law
enforcement functions who was killed while engaged in the
performance of official duties; and
(3) That the defendant committed or aided and abetted
the killing with malice aforethought.
If the jury should unanimously find that the
Government has proven each of the essential elements of
second-degree murder beyond a reasonable doubt, the foreperson
should write "guilty" in the space provided, and the jury's
consideration of that count is concluded.
If the jury should determine unanimously that the
Government has not proven each element of the lesser offense of
second-degree murder beyond a reasonable doubt, then the
foreperson should write "not guilty" in the space provided, and
the jury should then consider the guilt or innocence of
Mr. Nichols for the second less serious offense necessarily
included in that count, involuntary manslaughter.
Furthermore, if, after reasonable efforts have been
unsuccessful, the jury is unable to reach a verdict as to
whether or not the Government has proven each element of
second-degree murder beyond a reasonable doubt, the jury should
then consider whether or not Mr. Nichols is guilty or not
guilty of involuntary manslaughter.
Title 18 United States Code Section 1112 provides
that: "Manslaughter is the unlawful killing of a human being
without malice." To be guilty of involuntary manslaughter
under this statute, the Government must prove three essential
elements beyond a reasonable doubt:
(1) That a federal employee with law enforcement
functions was killed while engaged in the performance of
official duties;
(2) That the victim was killed as a result of an act
done by the defendant during the commission of a lawful act,
done without due caution, which might produce death; and
(3) That the defendant knew that such conduct was a
threat to lives of others or knew of circumstances that would
reasonably cause the defendant to foresee that such conduct
might be a threat to the lives of others.
The jury will bear in mind that the burden is always
upon the Government to prove beyond a reasonable doubt each and
every essential element of any lesser offense which is
necessarily included in Counts Four through Eleven. The law
never imposes upon a defendant in a criminal case the burden or
duty of calling any witnesses or producing any evidence.
Terry Nichols has been charged as a principal and also
as an aider and abettor in Counts Two through Eleven. Title 18
United States Code Section 2 provides that a person may be
found guilty if he aids, abets, counsels, commands, induces, or
procures or willfully causes the commission of a federal crime
by another person. Under this statute, a defendant is guilty
as an aider and abettor if:
(1) He willfully associated himself with a criminal
venture;
(2) He participated in it as something he wished to
bring about;
(3) He sought by his actions to make it succeed; and
(4) The offense was committed by someone else and
aided and abetted by the defendant.
A person may violate the law even though he or she
does not personally do each and every act constituting the
offense if that person aided and abetted or willfully causes
the commission of the offense.
Before Mr. Nichols may be held responsible for aiding
and abetting others in the commission of a crime, it is
necessary that the Government prove beyond a reasonable doubt
that the crime was committed and that Mr. Nichols knowingly,
intentionally, willfully, and maliciously associated himself in
some way with the crime charged and participated in it with the
intent to commit the crime.
Mere presence at the scene of the crime or merely
knowing that a crime is being committed or is about to be
committed is not sufficient conduct for the jury to find that
Mr. Nichols aided or abetted the commission of that crime.
The Government must prove that Mr. Nichols knowingly,
intentionally, willfully, and maliciously associated himself
with the crime in some way as a participant -- someone who
wanted the crime to be committed -- not as a mere spectator.
You are here to determine whether the Government has
proven the guilt of the defendant, Terry Lynn Nichols, for the
crimes charged in the indictment beyond a reasonable doubt.
You are not called upon to return a verdict as to any other
person. You should consider evidence about the acts,
statements, and intentions of persons other than Terry Lynn
Nichols only as that evidence may relate to these charges
against the defendant now on trial.
So if the evidence in the case convinces you beyond a
reasonable doubt of the guilt of Terry Lynn Nichols for the
crimes charged in the indictment, you should so find, even
though you may believe that one or more other persons may also
be guilty. But if any reasonable doubt remains in your minds
after impartial consideration of all of the evidence in the
case, it is your duty to find Terry Nichols not guilty.
The evidence in this case consists of the sworn
testimony of the witnesses, regardless of who may have called
them; all exhibits received in evidence, regardless of who may
have produced them, and all facts which may have been agreed to
or stipulated.
When the attorneys on both sides stipulate or agree to
the existence of a fact, you may accept the stipulation as
evidence and regard that fact as proved. However, because you
are the sole judges of the facts, you are not required to do
so.
Any proposed testimony or proposed exhibit to which an
objection was sustained by me, the Court, and any testimony or
exhibit ordered stricken by me must be disregarded entirely.
Anything you may have seen or heard outside the
courtroom is not proper evidence in this case.
There are two types of evidence which are generally
presented during a trial: direct evidence and circumstantial
evidence. Direct evidence is the testimony of a person who
asserts or claims to have actual knowledge of a fact, such as
an eyewitness. Circumstantial evidence is proof of a chain of
facts and circumstances indicating the existence of a fact.
It is a general rule that the law makes no distinction
between direct and circumstantial evidence but simply requires
that before convicting a defendant, the jury must be convinced
of the defendant's guilt beyond a reasonable doubt from all of
the evidence in the case.
You have heard evidence in this trial of expressions
of opinions and beliefs held by the defendant, Terry Nichols,
and of books and articles found in his home. The defendant is
not on trial for any of his thoughts, beliefs, or statements,
which are protected by the First Amendment to the United States
Constitution. The First Amendment, however, does not prevent
the prosecution in a criminal case from offering evidence of
the defendant's beliefs in an attempt to prove that he had some
motive, knowledge, or intent for committing the crimes alleged
in the indictment. Proof of motive is not essential in a case
such as this; but, when proved, motive may be an item of
circumstantial evidence that may bear on whether or why a
defendant may have committed a criminal act. Whether you agree
or disagree with the defendant's expressed opinions and beliefs
is irrelevant. The defendant is on trial only for the crimes
set forth in the 11 counts of the indictment, which the
Government must prove beyond a reasonable doubt. You may no
more convict the defendant because you may disagree with his
opinions and beliefs than you may acquit him because you may
agree with his opinions and beliefs.
Under the First Amendment to the United States
Constitution, all individuals, including Mr. Nichols, have the
right to assemble and discuss even the most unpopular ideas,
including unlawful acts. Expressions of sympathy and support
for those who commit unlawful acts do not, without more,
constitute entry into an unlawful agreement, nor does vigorous
criticism of the government. One may belong to a group knowing
that some of its members commit unlawful acts without having
entered into an agreement that these unlawful acts be
committed. A frank exchange of political views and opinions,
no matter how vehement, radical, or unpopular, does not,
without more, constitute an unlawful agreement or evidence of a
crime.
You must be careful to consider this evidence solely
for the limited purpose for which it was admitted. A failure
to restrict your consideration of this evidence to the limited
purpose is a violation of your duty and the oath you took.
Equally important, it is contrary to the Constitution of the
United States. No individual should ever be punished or
presumed guilty for exercising his or her rights under the

Constitution of the United States.
You, as jurors, are the sole and exclusive judges of
the credibility of each of the witnesses called to testify in
this case, and only you determine the importance or the weight
that their testimony deserves. After making your assessment
concerning the credibility of a witness, you may decide to
believe all of that witness' testimony, only a portion of it,
or none of it.
In making your assessment, you should carefully
scrutinize all of the testimony given, the circumstances under
which each witness has testified, and every matter in evidence
which tends to show whether a witness, in your opinion, is
worthy of belief. Consider each witness' intelligence, motive
to falsify, state of mind, and appearance and manner while on
the witness stand. Consider the witness' ability to observe
the matters as to which he or she has testified and consider
whether he or she impresses you as having an accurate memory or
recollection of these matters. Consider also any relation a
witness may bear to either side of the case, the manner in
which each witness might be affected by your verdict, and the
extent to which, if at all, each witness is either supported or
contradicted by other evidence in the case.
Inconsistencies or discrepancies in the testimony of a
witness or between the testimony of different witnesses may or
may not cause you to disbelieve or discredit such testimony.
Two or more persons witnessing an incident or a transaction may
simply see or hear it differently. Innocent misrecollection,
like failure of recollection, is not an uncommon experience.
In weighing the effect of a discrepancy, however, always
consider whether it pertains to a matter of importance or an
insignificant detail and consider whether the discrepancy
results from innocent error or from intentional falsehood.
The reliability of eyewitness identification has been
raised as an issue in this case and deserves your attention.
Identification testimony is an expression of belief or
impression by the witness. Its value depends upon the
opportunity the witness had to observe the offender at the time
of the offense and later to make a reliable identification, and
upon the influence and circumstances under which the witness
made the identification.
You are not required to accept testimony, even though
the testimony is uncontradicted and the witness is not
impeached. You may decide because of the witness's bearing or
demeanor, or because of the inherent improbability of his or
her testimony, or for other reasons sufficient to you that such
testimony is not worthy of belief.
After making your own judgment or assessment
concerning the believability of a witness, you can then attach
some importance or weight to that testimony, if any, that you
feel it deserves. You will then be in a position to decide
whether the Government has proven the charges beyond a
reasonable doubt.
The rules of evidence ordinarily do not permit
witnesses to testify as to their own opinions or their
conclusions about issues in the case. An exception to this
rule exists as to those witnesses who are described as "expert
witnesses." An "expert witness" is someone who by education or
experience, may have become knowledgeable in some technical,
scientific, or very specialized area. If such knowledge or
experience may be of assistance to you in understanding some of
the evidence or in determining a fact, an "expert witness" in
that area may state an opinion as to relevant and material
matter in which he or she claims to be an expert. Thus an
"expert witness" is more accurately an opinion witness.
You should consider the testimony of each opinion
witness received in evidence in this case and give it such
weight as you may think it deserves. You should consider the
testimony of opinion witnesses just as you consider other
evidence in this case. If you should decide that the opinion
of such a witness is not based upon sufficient education or
experience, or if you should conclude that the reasons given in
support of the opinion are not sound, or if you should conclude
that the opinion is outweighed by other evidence including that
of other opinion witnesses, you may disregard the opinion in
part or in its entirety.
You must also remember that an opinion witness can be
influenced by various motivations just as an ordinary witness.
You the jury are the experts in the end -- you are the sole
judges of the facts in this case.
You have heard testimony from Michael Fortier, who
pleaded guilty to certain charges after entering into a plea
agreement with the Government to testify. There is evidence
that the Government agreed not to prosecute this witness on
other charges in exchange for the witness's agreement to plead
guilty and testify at this trial against the defendant. The
Government also promised to bring the witness's cooperation to
the attention of the sentencing court.
The Government is permitted to enter into this kind of
plea agreement. You should bear in mind that a witness who has
entered into such an agreement has an interest in this case
different from any ordinary witness. A witness who realizes
that he may be able to obtain his own freedom, or receive a
lighter sentence by giving testimony favorable to the
prosecution, has a motive to testify falsely. Therefore, you
must examine his testimony with caution and weigh it with great
care. If, after scrutinizing his testimony, you decide to
accept it, you may give it whatever weight, if any, you find it
deserves.
You are instructed that you are to draw no conclusions
or inferences of any kind about the guilt of the defendant on
trial from the fact that a prosecution witness pleaded guilty
to charges that may relate to this case. That witness's
decision to plead guilty was a personal decision about his own
guilt. It may not be used by you in any way as evidence
against or unfavorable to the defendant on trial here.
Certain witnesses in this case admitted under oath to
drug and alcohol abuse. The testimony of drug and alcohol
abusers must be examined and weighed by the jury with greater
care than the testimony of a witness who does not abuse drugs
or alcohol. The jury must determine whether the testimony of
the drug or alcohol abuser has been affected by drug or alcohol
use, the need for drugs or alcohol, or the threat of
prosecution for drug use and possession.
The fact that a witness has previously been convicted
of a felony, or of a crime involving dishonesty, is a factor
you may consider in weighing the credibility, or believability,
of a witness.
The fact of such a conviction does not necessarily
destroy the witness's credibility, but is one of the
circumstances you may take into account in determining the
weight to be given to his testimony.
You may also consider any bias, prejudice, or
hostility of a witness toward or against Mr. Nichols or the
Government in determining the weight to be accorded to the
testimony of that witness.
You have heard testimony from several law enforcement
officials. The fact that a witness may be employed by the
federal government or a state or local government as a law
enforcement official does not mean that his or her testimony is
necessarily deserving of more or less consideration or greater
or lesser weight than that of an ordinary witness. At the same
time, it is quite legitimate for defense counsel to try to
attack the credibility of a law enforcement witness on the
grounds that his or her testimony may be colored by a personal
or professional interest in the outcome of the case. It is
your decision, after reviewing all of the evidence, whether to
accept the testimony of a law enforcement witness and to give
that testimony whatever weight, if any, you find it deserves.
Charts or summaries have been prepared by the
Government and the defense and shown to you during the trial
for the purpose of explaining facts that are allegedly
contained in books, records, and other documents which are in
evidence in the case. Such charts or summaries are not
evidence in this trial or proof of any fact. If you find that
these charts or summaries do not correctly reflect facts or
figures shown by the evidence in the case, the jury should
disregard the charts or summaries.
In other words, such charts or summaries are used only
as a matter of convenience for you, and the extent to -- and to
the extent that you find that they are not, in truth, summaries
of facts or figures shown by evidence in the case, you can
disregard them entirely.
Some charts or summaries prepared by the Government
and the defense have been admitted into evidence, and have been
shown to you during the trial for the purpose of explaining
facts that are allegedly contained in books, records, or other
documents which are in evidence in the case. You may consider
the charts and summaries as you would any other evidence
admitted during the trial and give them such weight or
importance, if any, as you feel they deserve.
A witness may be discredited or impeached by
contradictory evidence or by evidence that at some other time
the witness has made statements which are inconsistent with the
witness's present testimony. The testimony of a witness may be
discredited, or, as we sometimes say, impeached by showing that
he or she previously made statements which are different from
or inconsistent with his or her testimony here in court. The
earlier inconsistent or contradictory statements are admissible
only to discredit or impeach the credibility of the witness and
not to establish the truth of these earlier statements made
somewhere other than here during trial. It is the province of
the jury to determine the credibility, if any, to be given the
testimony of a witness who has made prior inconsistent or
contradictory statements. If you believe that any witness has
been impeached and thus discredited, it is your exclusive
province to give the testimony of that witness such
credibility, if any, as you may think it deserves.
If any witness is shown to have testified falsely
concerning any material matter, you have the right to distrust
such witness's testimony in other particulars and you may
reject all of the testimony of that witness or give it such
credibility as you may think it deserves.
Evidence relating to any alleged statement by a
defendant to law enforcement agents should always be considered
by the jury with great caution and weighed with great care.
All such alleged statements should be disregarded entirely
unless the other evidence in the case convinces the jury that
the statement was made or done knowingly and voluntarily.
In determining whether any statement alleged to have
been made by a defendant to law enforcement agents was
knowingly and voluntarily made or done, the jury should
consider all of the circumstances surrounding the alleged
making of the statement. Such factors you should consider can
include, but are not limited to, the defendant's age, his
training, education, occupation, and physical and mental
condition while in custody or other interrogation as shown by
the evidence in the case. You should consider the totality of
the circumstances under which the alleged statement was made in
making your decisions about its worth or value, if any.
If after considering the evidence you determine that a
statement was made or done knowingly and voluntarily, you may
give it such weight as you feel it deserves under the
circumstances.
Statements knowingly and voluntary made by any person
upon being informed or learning that a crime has been committed
or upon being accused of a criminal charge may be considered by
the jury.
When a person voluntarily offers an explanation or
voluntarily makes some statement tending to show his innocence
or lack of knowledge and it is later shown that the person knew
that the statement or explanation was false, the jury may, but
need not, consider this as a showing of consciousness of guilt
since it is reasonable to infer that an innocent person does
not usually find it necessary to invent or fabricate an
explanation or statement tending to establish his innocence or
lack of knowledge.
Whether or not evidence as to a person's explanation
or statement points to a consciousness of guilt on his part and
the significance, if any, to be attached to such evidence are
matters exclusively within the province of the jury as the sole
judges of the facts of this case.
In your evaluation of evidence of an exculpatory
statement shown to be false, you may be -- you may consider
that there may be reasons -- fully consistent with innocence --
that could cause a person to give a false statement showing
their innocence. Fear of law enforcement, reluctance to become
involved, and simple mistake may cause a person who has
committed no crime to give such a statement or explanation.
When a person voluntarily agrees to meet about FBI
agents, and, after being informed of his constitutional right
to remain silent, answers their questions, the agents are not
required by law to stop their questioning and arrest the
person, or inform him immediately upon the issuance of a
warrant for his arrest as a material witness.
You are cautioned that because the right to remain
silent when being questioned by the FBI or any other law
enforcement officials is a fundamental right under the United
States Constitution, the failure of a person being questioned
to answer any question may not be considered. Accordingly,
with respect to any testimony that Mr. Nichols did not answer
questions put to him by FBI -- FBI agents, you are instructed
that you must draw -- excuse me -- that you must not draw any
inferences or conclusions as to what the answers might have
been or why he did not answer those questions.
Under your oath as jurors you are not to be swayed by
sympathy. You are to be guided solely by the evidence in this
case, and the crucial, hard-core question that you must ask
yourselves as you sift through the evidence is: Has the
Government proven the guilt of the defendant beyond a
reasonable doubt?
It is for you alone to decide whether the Government
has proven that the defendant is guilty of the crimes charged
solely on the basis of the evidence and subject to the law as I
give it to you in these instructions. It must be clear to you
that once you let fear or prejudice, or bias or sympathy
interfere with your thinking there is a risk that you will not
arrive at a true and just verdict according to the law and the
evidence.
If you have a reasonable doubt as to a defendant's
guilt, you should not hesitate for any reason to return a
verdict of not guilty. But on the other hand, if you should
find that the Government has met its burden of proving the
defendant's guilt beyond a reasonable doubt, you should not
hesitate because of sympathy or any other reason to return a
verdict of guilty.
Remember that the question before you can never be:
Will the Government win or lose the case? The Government
always wins when justice is done regardless of whether the
verdict is guilty or not guilty.
The law does not compel Mr. Nichols or any defendant
in a criminal case to take the witness stand and testify and
you must not draw any inference from the fact that Mr. Nichols
did not testify. It is up to the Government to prove
Mr. Nichols guilty beyond a reasonable doubt. It is not up to
Mr. Nichols to prove that he is not guilty. The fact that
Mr. Nichols did not testify should not be discussed by you in
any way or play any part in your deliberations.
I explained to you individually at the time that you
were being questioned for possible service as jurors in this
case the various possible stages, including jury sentencing in
a capital case. Your function at this stage of the trial is to
weigh the evidence in the case and to determine whether or not
the defendant is guilty beyond a reasonable doubt, solely upon
the basis of such evidence. Under your oath as jurors, you
cannot allow a consideration of the punishment which may be
imposed upon the defendant, if he is convicted, to influence
your verdict or even to enter into your deliberations.
Upon retiring to the jury room, you will select one of
your number to act as the foreperson. The foreperson will
preside over your deliberations and speak for you in court.
A form of verdict has been prepared for your
convenience.
You understand that your verdict must be unanimous.
All of you must be in agreement. Until you all have agreed,
you have not reached a verdict.
You will take this form with you to the jury room and
when you have reached unanimous agreement as to your verdict,
the foreperson will fill in and sign the form to state the
verdict upon which you have agreed and then you will return
with your verdict to the courtroom.
Now, the verdict form looks like this. Actually you
will have, in addition to the verdict form, work copies that
each of you will have. I think that the verdict form is
self-explanatory, but let me go over it briefly with you to
make sure.
It says -- has of course the title of the court and
case. Verdict form says, "We the jury, upon our oaths,
unanimously find as follows." And then separately for each
count, as you must consider separately each count under the law
and the evidence, it says, "Count One," and reminds that is
conspiracy to use a weapon of mass destruction. There is a
blank line under which are the words "not guilty or guilty."
When you have reached unanimous agreement with respect to that
count, then the person whom you have selected as foreperson
will write in on the line the words that describe your verdict,
be they not guilty or guilty.
With respect to Count Two, it reminds that's use of a
weapon of mass destruction. Again, the space to fill in the
verdict.
Count Three, destruction by explosive; again, the line
upon which the foreperson will write in your decision.
Then it has this on page 2: "If you find the
defendant guilty of one or more of the crimes charged in these
three counts, then answer the following question."
There is then written this question: "Do you find
that the Government proved beyond a reasonable doubt that the
crime or crimes committed by the defendant, Terry Lynn Nichols,
as found above --" that is, with respect to the first three
counts "-- resulted in the death of one or more of the persons
named in the indictment?"
Here there is a line under it, the words "yes or no,"
and the foreperson would fill in the word "yes" or "no"
depending upon your unanimous finding.
Then it asks this additional question: "Was the death
of such person or persons a foreseeable result of the
defendant's criminal conduct?"
Again, "Yes or no." That's with respect to the first
three counts or charges of the indictment.
The verdict form then goes on, separately, to ask with
respect to the murder counts, each of Counts Four through
Eleven.
Count Four it says, "First-degree murder of Mickey
Bryant Maroney." Again, guilty or not guilty.
But then it goes on and says, "First less serious
offense," and reminds in parentheses, "(To be filled out only
if you find the defendant not guilty of first-degree murder
under Count Four or are unable to reach a verdict as to
first-degree murder under Count Four.)"
Then as these instructions have told you, you would
consider second-degree murder under the instructions with
respect to the elements of that lesser included offense.
The verdict form goes on and says: "Second less
serious offense," and again reminds, "(To be filled out only if
you find the defendant not guilty of either first- or
second-degree murder under Count Four or are unable to reach a
verdict as to first- or second-degree murder under Count
Four)."
So you would be down here only if the decision has
been not guilty on first-degree murder and second-degree
murder. Then you would consider involuntary manslaughter as
these instructions have explained that offense to you.
Similarly with respect to each of the other of the
first-degree murder counts, there is the same form so that you
can consider the lesser included offenses if you find that the
evidence does not prove the first-degree murder count beyond a
reasonable doubt or if you're unable to reach a verdict as to
that count.

Then after going through each of these murder counts,
the last one being of course Count Eleven on page 7, having
completed all of this, then the foreperson will sign his or her
name over the word "foreperson" and fill in the date of your
decision and advise that you have arrived at a decision, and
you would then be returned to court for the return of your
verdict and its announcement.
Now, if it should become necessary during your
deliberations to communicate with the Court, you may do so in
writing; but you must bear in mind that you are not to reveal
to the Court or to any person how the jury stands numerically
or otherwise on the questions before you until after you have
reached your unanimous verdict.
So as I have said before, as I explained to you, I
think yesterday, we have set up the exhibits in this case in a
separate room. It is an adjacent courtroom. The deliberating
jurors will be the only persons having access to that area and
will be free to go and come to that room to look at the
exhibits as you choose to see them and view them. How you use
the exhibits in the case is of course a matter entirely for
your choice.
All that has been received in evidence will be there.
Things that have not been received in evidence will not be
there and will not be provided at your request because, for
example, you may as you deliberate and discuss the case
remember some document or object being discussed in the
testimony but not actually received in evidence. We can't
change the evidence now, and it would not be provided to you
even if you requested it.
Also, there have been these things, as I have
mentioned to you from time to time and as I did in these
instructions refer to them as demonstrative or illustrative
exhibits, both with respect during the time of the testimony of
witnesses and also at times in the argument of the case. Those
will not be provided because they have not been received in
evidence and are not therefore a part of the evidence.
One modification with respect to the actual exhibits
have been made. There are, as you know, a number of firearms
that have been received in evidence. Those firearms are in the
exhibit room and available for your inspection there. There
was also received in evidence ammunition. Some of that
ammunition fits in some of the firearms. Now, just as a matter
of safety, we are withholding the ammunition and substituting
for it photographs of that ammunition so that, you know, the
guns are rendered safe. You don't have to in any way feel
danger with respect to handling of firearms, if you wish to do
so. There's no ammunition in them, and you will see that
there's a device in there preventing it from being used; but we
don't want any accidents, so we're keeping the ammunition
separated and available, you know, as a matter of photographs.
Now, if you will for just a moment bear with us, I'm
going to ask counsel to approach the bench and have a matter to
discuss with them. You can stand and stretch during this time.
I'm going to turn on this noise machine, too, so you can't hear
us.
(At the bench:)
(Bench Conference 128B1 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)

(In open court:)
THE COURT: Now with respect to the deliberations
here, there are 18 of you seated here in the jury box. The law
provides that the decision will be made by 12 people, a jury of
12. We have had six more jurors here as to be available as
alternate jurors, and they have of course been available to
participate in the deliberations if that were necessary.
The people who are seated here in the first row,
counting from my left to your right Chair No. 1 through 6, and
also in the second row beginning again at my extreme left, your
right, and for six seats in the second row are the 12 persons
who will serve as the jurors to decide this case and
deliberate. The other six of you are alternate jurors.
Now, the time of deliberation will of course be a
matter of the 12 people who are deliberating. They're going to
take whatever time they find necessary to decide the case, and
that's a matter for them to decide as they go along, and we
will provide that time that is necessary for fair deliberation
in the case. I'm going to ask the other six of you to remain
available; and in fact, we have arranged to keep you together
during the time that 12 people are deliberating in the case.
Once again, there's no sequestration order here. I
would expect the deliberations to run the usual court day, 8:30
to 5; in the absence of your request to do something different
from that, that that would be the normal schedule. And we'll
arrange for those who are the alternate jurors to be together
at another suitable place so that in the event that it may be
necessary to go on with further hearing in the case, the
alternate jurors will remain available to serve with us in the
same fashion as through the trial here. Whether that is or is
not necessary, of course, as you recognize, depends on the
verdict in the case.
I want you, alternate jurors, first of all, to accept
our thanks for your being with us and also in advance thank you
for what I'm now going to tell you is required of you, and that
is that you not deliberate among yourselves. You're not a
shadow jury here. So in the same way as you have complied with
my instructions throughout the trial, I'll ask of you that you
not discuss the case among yourselves and of course not with
any other person and that you continue to be extremely careful;
that you avoid radio, television, news, magazines, newspapers,
or whatever, and anything that may contain -- be contained in
them that would relate to this case, recognizing that it is
possible that you will have the responsibility to come back and
rejoin us for another stage of the case, as I say, if that
should be necessary.
So you're in a true standby situation. We will
attempt so far as possible to provide you with some --
something to do during that time that will be -- make the time
more passable to you; but again, I want to emphasize the
importance of your availability and our appreciation for it.
I will ask now that the six alternate jurors please go
to the jury room and pick up whatever you have there that is
personal to you, and then you will be escorted to the place
where we'll ask you to be in waiting. So if the alternate
jurors will please leave at this time and remain available.
(Alternate jurors out at 2:11 p.m.)
THE COURT: And for those now on the jury, as we wait
for the alternate jurors to pick up their things and leave the
area where you've all been together, I just want to emphasize
again that the course of the deliberations is entirely up to
you; that as I told you in these instructions, you will select
one of your number to act as the foreperson, and that be the
person that presides over your deliberations and will then
speak for you here in court.
As I mentioned in these instructions -- and you will
have, each of you, a complete copy of the instructions as well
as copies of the indictment and the verdict forms so you don't
have to pass a paper around all the time. Each will have that
in front of you. And you will be free to use this area that
you know all too well and also access to the courtroom where
only you will have access to the exhibits and so that you can
make such use of them as you see fit.
Again, I would remind you as I did in the instructions
that if you have some need to communicate with the Court, you
may send a note. Do so only in writing. You will communicate
with the Court only in writing, and you will send the note.
I believe you have met Mr. Manspeaker here, who is the
clerk of this court and who will be available to you. There is
a buzzer system in the jury room that you may or may not know
about. He can explain that to you quickly now; and if you need
anything, you can buzz him and he will be available to you.
Will you check.
We're just going to check to see if the others are --
now, you know, also each time that I excuse you as jurors in
this case and of course the time of your deliberation, as I've
said earlier, is up to you. But we only anticipate your
working up to 5:00, just as we have been throughout the course
of the trial, because I think some of you may have commitments
with child care and other things; and we'll try to keep this so
that you can continue with that schedule. We'll always bring
you back into the courtroom, however, before recessing you to
of course remind you about your obligations as members of the
jury.
So with these instructions, members of the jury, you
will now retire to your jury room to select a foreperson and
begin your deliberations in this case.
(Jury out at 2:14 p.m.)
THE COURT: As I advised the jury, we will -- our
practice will be to ask every one of counsel and the defendant
to be here at 10 minutes before 5, if you haven't heard from us
before that, so that we may bring the jury in and give them
cautionary instructions to recess their deliberations and
probably to suggest that they have deliberations from 8:30 to 5
as the regular workday; and of course it's also my practice to
take any questions or communications from the jury that require
response by first meeting here in the courtroom and discussing
them. So I need counsel to be available on about 10 minutes'
notice so that we can deal with that without having the jury
wait for us.
Now, with that, either side have anything further at
this time?
MR. TIGAR: No, your Honor, not from defense.
MR. MACKEY: Nothing at this time, your Honor. Thank
you.
THE COURT: All right. Then the Court will be in
recess subject to call.
(Recess at 2:15 p.m.)
* * * * *

INDEX
Item Page
Jury Instructions

* * * * *
REPORTER'S CERTIFICATE
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter. Dated
at Denver, Colorado, this 16th day of December, 1997.

_______________________________
Kara Spitler

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Criminal Action No. 96-CR-68

UNITED STATES OF AMERICA,

Plaintiff,

vs.

TERRY LYNN NICHOLS,

Defendant.

ЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋ

REPORTER'S TRANSCRIPT
(Trial to Jury: Volume 129)
ЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋЋ
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 5:01 p.m., on the 16th day of December,
1997, in Courtroom C-204, United States Courthouse, Denver,
Colorado.

Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
APPEARANCES
PATRICK RYAN, United States Attorney for the Western
District of Oklahoma, 210 West Park Avenue, Suite 400, Oklahoma
City, Oklahoma, 73102, appearing for the plaintiff.
LARRY MACKEY, SEAN CONNELLY, BETH WILKINSON, GEOFFREY
MEARNS, JAMIE ORENSTEIN, and AITAN GOELMAN, Special Attorneys
to the U.S. Attorney General, 1961 Stout Street, Suite 1200,
Denver, Colorado, 80294, appearing for the plaintiff.
MICHAEL TIGAR, RONALD WOODS, and JANE TIGAR, Attorneys
at Law, 1120 Lincoln Street, Suite 1308, Denver, Colorado,
80203, appearing for Defendant Nichols.
* * * * *
PROCEEDINGS
(Reconvened at 5:01 p.m.)
THE COURT: All right. We'll bring the jury in and
recess their deliberations overnight.
(Jury in at 5:01 p.m.)
THE COURT: Now, members of the jury, I'm going to
recess your deliberations at this time and let you go home
overnight.
The situation now is different from any other time
that I've addressed you, because the trial has been completed,
the case has been given to you, and it's in your hands.
I want to give you some cautions, of course,
recognizing that this is a very sensitive situation. As I have
explained to you before, I could keep you together, separate
and apart from all other persons and keep you together not
necessarily deliberating, of course, but in some private and
convenient place where you would be by yourselves and away from
the possibility of being influenced in any way by anyone else,
including anything on radio, television, newspapers, and the
like.
I'm not going to do that, though. I'm going to rely
on your oath and on your commitment under that oath to follow
the law and be guided only by the law and the evidence in this
case.
So accordingly, as we recess now, you will be able to
go your respective ways with the extra caution that, of course,
not only is this situation the same in that you must not
discuss the case with any other person or permit anyone to talk
to you or in your presence about this case, not only will you
avoid anything on radio, television, newspapers, magazines,
books, or whatever, which could in any way possibly influence
you in your decision, but you must also recognize that each one
of you is one of 12 and that it will be 12 people who
deliberate in this case and that you really only serve on this
jury when you are together as a jury behind closed doors with
the foreperson presiding.
And accordingly, now, as are excused and go your
respective ways, if it should be the case that any of you are
riding together in a carpool or whatever, or see, you know,
other jurors outside of the jury deliberation room here, you
must remember that you're not to discuss the case in twos or
threes or in any way other than when the 12 of you are back
here in the jury room with closed doors and the foreperson is
presiding and you are deliberating.
That means, of course, also that you don't talk on the
telephone with each other. You know, it's not a matter of all
of you thinking about this or discussing it in twos or threes
and then coming together to see how you think about it.
Deliberation is something that's done within the dynamics of
the jury room and with the 12 jurors participating, because it
is, as you were told, your recollection of the testimony and
your contributions, each of you, to the discussion that you
must rely on in this matter.
So what I'm asking you to do now is for each of you to
let the matter rest, come back together in the morning, and
when you're back in the jury room and all of you are present,
you resume your deliberations.
Now, the timing of your deliberations is, of course, a
matter for you to decide. I'm going to assume here the usual
workday. I suggest that you start at 8:30. You're usually
here by that time, and you can resume at 8:30.
Now, your deliberations are secret in the sense that
they only -- only the 12 of you should know about them. So as
you leave tonight, the deliberation room, that room, will be
sealed off. No one will have any access to it. No cleaning
persons, no one. And accordingly, whatever you may have in the
way of notes and things -- and if you have any exhibits in
there, you can use, you know -- bring exhibits in there, if you
want to. But whatever is in there will be sealed off. No one
will have access to that excepting for you. I want you to be
reassured of that. If you have notes on the wall or something
like that, no one else will see them.
We may ask you to bring the trash out or something and
have you do that yourselves, but that's a part of making sure
that no one has any access to your thinking or your
deliberations, because that's a part of the process.
So please follow these cautions. And when you come in
tomorrow, we won't be back in the courtroom. You will be going
directly to the jury room and resuming your deliberations under
the guidance of the process that you've agreed upon and the
foreperson that you agreed to lead you.
So with that, members of the jury, you're excused now.
You'll resume your deliberations tomorrow.
8:30 agreeable to you all?
All right. You're excused. We hope you have a
pleasant evening.
(Jury out at 5:08 p.m.)
THE COURT: All right. We're again in recess subject
to call.
(Recess at 5:08 p.m.)
* * * * *
REPORTER'S CERTIFICATE
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter. Dated
at Denver, Colorado, this 16th day of December, 1997.

_______________________________
Paul Zuckerman

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