                                                                                   F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   DEC 18 2000
                                     TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 99-1438
                                                          (D.C. No. 96-CR-68-M)
 TERRY LYNN NICHOLS,                                       (District of Colorado)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before BALDOCK, PORFILIO, and BRORBY, Circuit Judges.




       In this appeal from a district court order denying him a new trial, Terry Nichols

contends either a whole new trial or an evidentiary hearing should have been granted by

the district court. The focus of Mr. Nichols’ case is the failure of the prosecution during

trial to turn over some 40,000 Federal Bureau of Investigation “lead sheets.” In addition

to the lead sheets, Mr. Nichols contends a post-trial letter to the district court from a




       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
witness, Roger “Bob” Moore, casts doubt on Mr. Moore’s trial testimony and makes

reference to government interviews of Mr. Moore, reports of which were not turned over

to the defense either. After a review of the record, we conclude Mr. Nichols’ contentions

are without merit, and affirm.

       Mr. Nichols was convicted of conspiring to bomb the Alfred P. Murrah Federal

Building in Oklahoma City, in violation of 18 U.S.C. § 2332a.1 On direct appeal, this

Court affirmed the convictions and sentence, and the Supreme Court denied certiorari.

United States v. Nichols, 169 F.3d 1255 (10th Cir.), cert. denied, 528 U.S. 934 (1999).

       In setting the issues for discussion raised by Mr. Nichols’ post-trial motions, the

district court described the universe of FBI reports compiled in this case as “‘information

control’ sheets [.] informally called ‘lead sheets’.” The court then explained:

               Routinely, FBI agents and other FBI personnel use a standard form,
       in triplicate, to record received information that may possibly be relevant to
       an investigation, identifying the source, method, date and time of contact
       and a narrative summary of what was heard from the source. This form is
       also used to document communications between agents. Each lead sheet is
       given a control number and the form provides a space for reporting what
       investigative steps were taken as a result of the information received or the
       agent’s message. The follow-up to the lead is an interview of the source or
       of others who may have more information, the agent conducting the
       interview will report what was said on a Form 302 if the information is
       thought to be relevant to the investigation or in the form of an “insert” if the
       information is of no apparent value.




       The facts of that crime are fully set forth in United States v. McVeigh, 153 F.3d
       1

1166, (10th Cir. 1998); thus, they need not be repeated here.

                                             -2-
       Although all 302’s and inserts were turned over by the government to the defense

prior to trial, none of the more than 40,000 lead sheets were made available. Mr. Nichols

claims he was unaware of their existence prior to an incident during trial, and the

government does not contest this assertion.

       At trial, during its rebuttal case, the prosecution called FBI special agent Chris

Budke to testify about prior statements made by prosecution witness Richard Wahl,

whose credibility was questioned by the defense. Agent Budke’s testimony revealed he

had made notes of his prior meeting with Mr. Wahl and these notes had not been reduced

to a formal 302 or insert. This lead sheet purportedly reveals Mr. Wahl had made pre-

trial statements which varied with his testimony. The district court ultimately admitted all

Mr. Wahl’s various prior statements into evidence, over the objections of the prosecution.

       Mr. Nichols moved immediately to have Mr. Wahl’s testimony stricken in its

entirety, for the government to produce any other lead sheets, and for a mistrial. These

motions were denied.

       After the close of evidence, Mr. Nichols requested an evidentiary hearing on the

lead sheets. He later moved for the production of the lead sheets for review by the

defense or alternatively for an in camera review or review by government counsel.

Meanwhile, the government was sorting the 40,000 lead sheets into three categories: 1)

purely internal “agent-to-agent” communications; 2) lead sheets reflecting witness

statements concerning the identity or location of persons resembling the John Doe #1 or


                                              -3-
John Doe #2 sketches circulated after the bombing; 3) all other lead sheets. The last

category was reviewed by government counsel.

       Mr. Nichols again moved for a new trial or an evidentiary hearing, but both were

denied. The court, however, did order the government to produce the roughly 12,000 lead

sheets that fell into the category of “all other lead sheets” for Mr. Nichols’ review after

sentencing. On June 4, 1998, the government complied and produced a total of 13,998

pages. The district court’s review of these sheets forms the basis of Mr. Nichols’ request

for a new trial. He also claims the withheld lead sheets violated the government’s

obligations under the federal rules of discovery, the Jenks Act, and the parties’ discovery

agreement.

       Although the denial of a motion for a new trial is generally reviewed for an abuse

of discretion, where “a new trial motion is based on an alleged Brady2 violation,” this

Court will “review the district court’s ruling de novo.” United States v. Quintanilla, 193

F.3d 1139, 1146 (10th Cir. 1999). The same standard is applied to the decision of

whether the undisclosed evidence was material. United States v. Hughes, 33 F.3d 1248,

1251 (10th Cir. 1994).

       Due process requires prosecutors to disclose “evidence favorable to the

accused . . . where the evidence is material either to guilt or to punishment.” Brady, 373

U.S. at 87. To establish a violation of Brady, Mr. Nichols must show evidence was: 1)



       Brady v. Maryland, 373 U.S. 83 (1963).
       2



                                             -4-
suppressed by the prosecution; 2) favorable to him; and 3) material. Johnson v. Gibson,

169 F.3d 1239, 1254 (10th Cir. 1999).

       The prosecutors’ duty to avoid suppression is an active one. It includes “a duty to

learn of any favorable evidence known to the others acting on the government’s behalf in

the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). Moreover,

the obligation to turn over evidence “stands independent of the defendant’s knowledge.”

Banks v. Reynolds, 54 F.3d 1508, 1517 (10th Cir. 1995).

       Evidence favorable to the accused includes exculpatory evidence, other

information that provides important investigative leads, and impeachment evidence. See

Banks, 54 F.3d at 1517, n.18 (exculpatory evidence); Smith v. Secretary of New Mexico

Dept. of Corrections, 50 F.3d 801, 829 (10th Cir. 1995) (information providing

investigative leads); United States v. Bagley, 473 U.S. 667, 676 (1985) (impeachment

evidence).

       In judging materiality, the focus must be on the cumulative effect of the withheld

evidence, rather than on the impact of each piece of evidence in isolation. Banks, 54

F.3d at 1516. The cumulative effect of withheld evidence is material “if there is a

reasonable probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” Kyles, 514 U.S. at 433. Reasonable

probability is not to be read as a requirement the defendant show by a preponderance of

the evidence he would have been acquitted, id., instead, “significant possibility would do


                                            -5-
better at capturing the degree to which the undisclosed evidence would place the actual

result in question, sufficient to warrant overturning a conviction or sentence.” Strickler v.

Greene, 527 U.S. 263, 298 (1999) (Souter, J. concurring).

       Ultimately, the policy animating Brady is the desire to ensure a fair trial and a

verdict worthy of confidence. Kyles, 514 U.S. at 434. Thus, the key issue is whether the

government’s evidentiary suppression undermines confidence in the outcome of the trial.

Id.

       In making his Brady argument, Mr. Nichols asserts some 219 of the 12,000 lead

sheets handed over to the defense contain information directly relevant to issues tried in

the case yet not turned over to the defense prior to trial. Mr. Nichols does concede,

however, most of this information was available in FBI 302’s and inserts turned over to

the defense. His motion for a new trial focuses on 62 lead sheets he contends were

exculpatory, directly relevant, and never turned over in any form. The lead sheets in

question can be broken down into several categories: 1) those concerning the existence of

a John Doe #2; 2) those concerning Timothy McVeigh’s contacting known militia groups;

3) those concerning Michael Fortier; and 4) other miscellaneous lead sheets. We shall

review separately these categories and their attendant issues.

                                    A. JOHN DOE #2

       Many of the lead sheets relied on by Mr. Nichols contain information about a

possible additional conspirator known as “John Doe #2” (JD2). These lead sheets


                                            -6-
generally identify witnesses who claim to have seen Mr. McVeigh and JD2 together, at

motels, at sandwich shops, truck stops, or other restaurants, buying stereo speaker wire,

driving, or shopping, for example. Some sheets place JD2 in Oklahoma City at the time

of the bombing. Others link JD2 to Kingman, Arizona, where Michael Fortier lived,

including one from a caller claiming to have worked with McVeigh and JD2 at a security

firm. Finally, one sheet claims JD2 was a member of McVeigh’s former army unit, and

one states JD2 was with McVeigh in Ohio a year earlier when McVeigh talked of

blowing up a building.

       Mr. Nichols argues these lead sheets point to the existence of conspirators other

than himself who aided Mr. McVeigh and cast doubt on Mr. Nichols’ participation in the

overt acts which lead to his conspiracy conviction. At the very least, Mr. Nichols asserts,

the presence of other conspirators at key points in Mr. McVeigh’s plan casts doubt as to

the extent of Mr. Nichols’ involvement and his knowledge of Mr. McVeigh’s ultimate

aims, thus diminishing his culpability.

       The government asserts many of these lead sheets were cumulative with

information handed to the defense through FBI 302’s and inserts. The information not

already contained in other materials, or cumulative with other materials, was unreliable,

unimportant, unverifiable, and largely implausible. Thus, the government believes the

lead sheets to be too speculative to require disclosure under Brady. Moore v. Illinois,

408 U.S. 786, 795 (1972). The government also contends the defense was given such


                                            -7-
copious amounts of JD2 evidence, and spent such a great deal of time presenting this

evidence at trial, any other evidence would have been of no consequence to the outcome.

       Most of the government’s assertions here are not entirely convincing. Some of the

lead sheets discussed appear to contain information not given to the defense in any other

form. Also, the assertions of unverifiability, implausibility, and unimportance, smack of

judgments best not left to the government when deciding Brady issues. Questions of

credibility are properly for the jury, not for the prosecution, and the defense should be

entitled to its own judgment of the utility of any exculpatory information. See Buehl v.

Vaughn, 166 F.3d 163, 181 (3d Cir. 1999) (concluding in Brady context, government’s

argument the witness’ withheld statement could not be verified “misses the point”).

Finally, some of the government’s assertions of cumulativeness ring hollow because it is

at least arguable the defense could be aided by more rather than fewer similar sightings of

JD2 with Timothy McVeigh.

       Nevertheless, the government’s alternative argument is more persuasive. The

prosecution contends none of the withheld JD2 information provides a reasonable chance

of changing the outcome, and we agree.

       First, despite the lack of the lead sheets Mr. Nichols presented a great deal of JD2

evidence at trial. While the additional information may have provided added weight to

the defense, the jury certainly had ample opportunity to consider the existence and

possible role of an additional or alternative conspirator. In light of the evidence presented


                                            -8-
to the jury, the undisclosed evidence is simply nothing more than chaff to be processed by

the finders of fact. When considered with the whole of the evidence, the undisclosed

statements bear insufficient probative value to suggest, if disclosed, they reasonably

would have changed the outcome.

       Second, none of the JD2 evidence casts doubt on the overt acts committed by Mr.

Nichols. While the defense maintains the evidence points not just to additional

conspirators, but to alternative conspirators, this is argumentative at best. None of the

lead sheets contend someone else committed any acts the evidence attributed to Mr.

Nichols. Nor do the sheets cast doubt on the extent of his role because it was conceded

he did not actually deliver the bomb with Mr. McVeigh. We simply cannot agree the

existence of another participant reduces Mr. Nichols’ relative culpability.

       Even proof of the existence of a real John Doe #2 and of his participation would

not contradict the government’s indictment. It must be remembered the indictment

charged Mr. Nichols conspired with Mr. McVeigh and with others unknown. The

participation of another conspirator disclosed by the evidence, therefore, does not relieve

Mr. Nichols of culpability under the indictment. Thus, there is no reason to believe

withholding this information from the defense violated Mr. Nichols’ right to a fair trial.

                                  B. MILITIA GROUPS

       Mr. Nichols also argues several lead sheets show Mr. McVeigh had connections to

militia groups that did not include Mr. Nichols. While Mr. Nichols refers to a number of


                                            -9-
lead sheets showing a connection between McVeigh and others and several militia

groups, he does little to argue these are exculpatory. Apparently, he relies on the

inference that Mr. McVeigh was reaching out to others; therefore, Mr. Nichols’

participation was diminished or had ceased to exist. If we correctly interpret his

argument, we think it lacks substance.

       Mr. Nichols contends two sheets in particular are key, one claiming Mr. McVeigh

visited the founder of the Elohim City group the week before the bombing, and another

showing a call from Mr. McVeigh to a leader of the group on April 5, 1995. (The latter

call was documented in phone records turned over to the defense by the FBI.). The visit

to the Elohim City compound is at odds with testimony placing Mr. McVeigh at a Kansas

motel at the same time, but even if true, does little to advance Mr. Nichols’ cause. Were

these facts made known to the jury, we believe the verdict would have been the same

because any contact between Mr. McVeigh and various militia groups does not diminish

Mr. Nichols’ own participation in the conspiracy.

                                 C. MICHAEL FORTIER

       Mr. Nichols identifies several sheets which he says contain information that could

have been used to impeach Mr. Fortier. In one lead sheet, a witness claims a customs

agent said she had seen Mr. Fortier inside the Murrah Building with Mr. McVeigh (Mr.

Fortier admitted to the trip in question but maintained he and Mr. McVeigh remained in

the car.). In a second, the same story is offered by a man who claims his wife saw Mr.


                                           - 10 -
McVeigh in the building. Another lead sheet involved a witness claiming he had a friend

who had an acquaintance who knew Mr. Fortier well, and the acquaintance said Mr.

Fortier once worked for a company that experienced a theft of explosives after which Mr.

Fortier did not return to work. A different sheet is an inter-agent account of Mr. Fortier’s

own assertion someone had told him Mr. McVeigh had purchased racing fuel at a track in

the Kingman area. Finally, others concern: the stresses in Mr. Fortier’s family after the

bombing, his having had Mr. McVeigh as his best man, and his involvement with illegal

drugs.

         Several of these sheets contain information well known to Mr. Nichols because it

was contained in other materials handed over by the prosecution, notably the information

on Mr. Fortier’s family situation, his closeness with Mr. McVeigh, and his prior drug

involvement. Withholding these sheets then presents no Brady issue. On the question of

Mr. Fortier’s trip inside the Murrah Building, Mr. Nichols never had the hearsay reports,

however, the prosecution did hand over two FBI interviews with the actual witness. In

these interviews, the witness positively identified one man as Mr. McVeigh, but was

unsure whether the other was Mr. Fortier. While Mr. Nichols claims the positive

identification contained in the lead sheets would have made a difference, the argument

becomes problematical when the evidence shows the witness could not make such an

identification. Moreover, the hearsay account that places Mr. McVeigh in the building is

redundant with the actual witness’s account and does little to further Mr. Nichols’ case.


                                            - 11 -
Although the tale of the explosive theft is intriguing, its probative value is insignificant

because it is third or fourth-hand hearsay. Even if true, the story casts little doubt on Mr.

Nichols’ participation in the activities of which he was accused, nor does it add to the

extensive impeachment Mr. Fortier underwent at trial. Finally, the information Mr.

McVeigh may have purchased some amount of racing fuel at a racetrack does not cast

doubt on Mr. Nichols’ activities, nor does it impeach Mr. Fortier. The trial court correctly

observed the follow-up investigation revealed no racetrack in the area sold fuel. Taken as

a whole, none of the information about Mr. Fortier could have added significantly to the

impeachment he underwent at trial.3

                         D. MISCELLANEOUS LEAD SHEETS

       Mr. Nichols also relies on several lead sheets about other issues. Only a few of

these sheets contain information not handed to the defense in more formal FBI 302’s or

inserts. The remainder appear not exculpatory, including: 1) a report that parking in front

of the Murrah Building was difficult to obtain at nine in the morning, suggesting an

accomplice would be needed to hold a spot for the Ryder truck; 2) a report from someone

saying she had known Mr. Nichols and his family some twenty years ago; and 3) a report

Mr. McVeigh and “Bob Jacks” inquired into buying land in Missouri. Nonetheless, one

sheet deserves special mention. There is a report Mr. McVeigh purchased 50 bags of



       3
        Mr. Fortier admitted extensive criminal conduct, and the district court instructed
the jury to use “great care” and “caution” in considering his testimony.

                                             - 12 -
ammonium nitrate fertilizer in Oklahoma City on April 1, 1995. This report is

contradicted by evidence Mr. McVeigh was at a Kingman motel from March 31-April 7,

1995. Nevertheless, even if true, the story does not relieve Mr. Nichols from

responsibility for the earlier purchase with Mr. McVeigh of 4,000 pounds of ammonium

nitrate.

                             E. LEAD SHEETS CONCLUSION

       While Mr. Nichols correctly points out the Brady analysis must focus on the

cumulative effect of the withheld evidence rather than on each piece of evidence in

isolation, he is not correct that the government’s analysis of each lead sheet is wrong-

headed. It may be true on occasion the total is greater than the sum of the parts, but rarely

can one add a column of zeroes to get a positive result. The government has shown a

great deal of the information Mr. Nichols claims was wrongfully withheld was already in

his possession. It has shown the rest of the information was highly unlikely even in the

aggregate to sway the outcome of the case. None of the materials poses a reasonable

probability, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.

                              F. ROGER MOORE’S LETTER

       Mr. Nichols relies on Mr. Moore’s post-trial letter to the district court as a basis for

a new trial. Mr. Nichols does not claim the letter was withheld in violation of Brady;

indeed, the letter was not written until after the trial. Instead, Mr. Nichols presents two


                                            - 13 -
reasons for the letter’s importance: 1) it provides details that differ from Mr. Moore’s

prior testimony, and 2) it suggests interviews the FBI conducted with Mr. Moore, the

records of which were not turned over to the defense.

       For the assertion the letter contains new contradictions with Mr. Moore’s trial

testimony; Mr. Nichols has failed to detail them. Further, were such contradictions

shown, they do not qualify as newly discovered evidence.

       To support a new trial motion, Mr. Nichols had to show: 1) the evidence was

discovered after trial; 2) the failure to learn of the evidence was not caused by his own

lack of diligence; 3) the new evidence was not merely impeaching; 4) the new evidence is

material to the principle issues involved; and 5) the new evidence is of such a nature that

in a new trial it would probably produce an acquittal. Quintanilla, 193 F.3d at 1147. Mr.

Nichols has failed to convince us of the existence of the third and fifth conditions. There

is no basis for a new trial here.

      G. DISCOVERY AGREEMENTS, JENKS ACT, RULES OF DISCOVERY

       Mr. Nichols also bases his claim for a new trial on the interests of justice because

the government’s withholding of the lead sheets violated the federal rules of discovery,

the Jenks Act, and the parties’ discovery agreement. These claims, even if not time-

barred, are without merit.

       The parties argue vigorously whether Mr. Nichols’ motion should be considered to

be preserved beyond the seven-day bar imposed by Rule 33 on new trial motions. In all,


                                           - 14 -
while the government seems to have the better of this argument, Mr. Nichols is right to

point out he has objected to the failure to hand over the lead sheets at every conceivable

time and in every manner. Because of the lack of substance to this matter, however, we

need not resolve this thorny procedural issue.

       The government’s failure to turn over the lead sheets is perfectly in accord with the

rules of discovery because the sheets were reports made by government agents

investigating the case and thus came under the heading “Information not Subject to

Disclosure.” Fed. R. Civ. P. 16(a)(2). The lead sheets were not subject to the Jenks Act

because they were not relevant statements made by a testifying witness called by the

prosecution. 18 U.S.C. § 3500 (a)(b)(e); Fed R. Crim. P. 26.2(a, f). The defense

concedes the lead sheets were not covered by the discovery order (because they did not

know about them), and the parties oral agreement did not cover interview notes as

opposed to memoranda or other summaries of interviews. Thus, it appears in no way

does the government’s withholding the lead sheets violate any obligation it had to Mr.

Nichols.

                             H. EVIDENTIARY HEARING

       As an alternative to his motion for a new trial Mr. Nichols asks this Court to order

an evidentiary hearing in the district court on the lead sheets and Mr. Moore’s letter.4 We

       4
        Specifically, Mr. Nichols requested a hearing to: complete the record with
testimony under oath concerning how the lead sheets were generated; where they were
kept; how they were redacted; how the government decided which ones to turn over under
                                                                               (continued...)

                                           - 15 -
review the decision of the trial court on the propriety of the evidentiary hearing for an

abuse of discretion. United States v. Nichols, 169 F.3d 1255, 1263 (10th Cir. 1999).

Because this is a very high standard to meet, we should only set aside the district court’s

judgment if it is “arbitrary, capricious, whimsical, or manifestly unreasonable.” Coletti v.

Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir. 1999).

       On its face there is nothing manifestly unreasonable about the district court’s

decision. The two categories of lead sheets that are not available to Mr. Nichols

contained inter-agent communications, and lay opinions on the possible identities of John

Doe #1 and #2. Brady does not authorize defense counsel’s own search of the

government files to argue relevance. Pennsylvania v. Ritchie, 480 U.S. 35, 59 (1987).

While the district court might have exercised its discretion to take testimony on some of

these matters, it clearly was not a whimsical decision on its part not to do so. We

therefore decline Mr. Nichols’ invitation to mandate an extension of these proceedings.

       AFFIRMED.



                                           ENTERED FOR THE COURT




       (...continued)
       4

the court’s order; what records the government kept of its lengthy interrogations of Roger
Moore and Karen Anderson; what financial arrangement the government had with Roger
Moore and Karen Anderson and what, if any, role the Attorney General and the President
had in that arrangement; and how the defense would have used the withheld information
if it had been timely and properly provided.

                                            - 16 -
John C. Porfilio
Senior Circuit Judge




- 17 -
