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U.S. says McVeigh did not reach burden for delay

McVeigh, right, talks with attorney Robert Nigh in 1995.  

DENVER, Colorado (CNN) - The U.S. Department of Justice urged a federal court to deny Timothy McVeigh's motion for a stay of his scheduled June 11 execution for the bombing of the Murrah Federal Building in Oklahoma City.

In its response, filed Monday with the U.S. District Court in Denver, the government argued that McVeigh could not prove that newly discovered FBI documents turned over to his attorneys last month showed "actual innocence," as required under the Antiterrorism and Effective Death Penalty Act of 1996.

"Timothy McVeigh does not, and could not, suggest that he is actually innocent of the charges of which the jury convicted him," prosecutor Sean Connelly wrote. "He does not, and could not suggest that the death penalty is unwarranted for his exceptionally aggravated crimes."

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Execution of Timothy McVeigh
Oklahoma City Bombing
Read documents in the McVeigh case (FindLaw) (PDF)

McVeigh's petition for stay

U.S. brief opposing stay of execution

Order setting time to respond

Supplement to petition for stay

McVeigh's response to motion to clarify
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graphic VIDEO
In a press conference, U.S. Attorney General John Ashcroft discusses FBI handling of documents in the McVeigh bombing case (May 24)

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Timeline: FBI under Louis Freeh
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McVeigh's attorneys argued in their motion for the stay that the government committed a "fraud on the court" by failing to turn over more than 4,400 pages of documents prior to his trial.

The government denied that claim, saying prosecutors turned over far more documents than discovery rules require and that McVeigh's attorneys could not prove any intent to withhold the documents.

The 27-page motion said McVeigh's claim relies on the statements of "four disgruntled FBI agents," three of whom played "insignificant roles" in the bombing investigation. The fourth agent blamed the failure to produce documents on negligence, not fraud.

The Justice Department said McVeigh's legal team had identified only nine new documents "totaling little more than 20 pages that he claims would have helped the defense."

The government dismissed the significance of those nine documents, saying "the same or similar information was disclosed prior to trial."

The government's response is not surprising. Attorney General John Ashcroft vowed last week to vigorously oppose any further delay in the execution.

In a hearing scheduled for Wednesday, federal district Judge Richard Matsch will hear arguments from the government insisting that nothing in the more than 4,400 new pages of material belatedly turned over by the FBI warrants further delay of his execution. Ashcroft postponed McVeigh's original execution date in May to June 11 to allow defense attorneys to review the material.

CNN has learned additional details about some of the newly turned-over documents.

One involves an interview with Indiana seed dealer David Shafer who, during a visit to the Michigan farm of Terry and James Nichols, said he remembered discussions of what he called a "superbomb."

According to two sources familiar with the documents, Shafer said he saw a diagram of what he later thought was the Oklahoma City federal building. A government source told CNN that Shafer had unspecified "credibility" problems.

Other documents allegedly included letters from McVeigh to his sister Jennifer while he served in the Persian Gulf War.

Another reportedly involves transcripts from the FBI's Los Angeles office from a cooperating witness -- a girlfriend of the brother of former McVeigh Army buddy Michael Fortier.

Fortier was convicted of making false statements to the FBI and subsequently testified against both McVeigh and convicted co-conspirator Terry Nichols.

Another previously disclosed document involves an interview with an Oklahoma newspaper reporter who told an FBI agent about a conversation he had with a New York Times reporter who said she had talked with someone who claimed that Dennis Mahon was involved in the bombing.

Mahon has been linked to a white supremacist group in Oklahoma and was well-known to the defense before trial. The FBI has said he had no role in the bombing.

The FBI interview with the Oklahoma reporter was done in connection with an investigation of Mahon, according to a government source.

The Justice Department has insisted the interview had nothing to do with the Oklahoma bombing and was not filed with other Oklahoma City bomb documents.

The defense charges the government intentionally filed the interview separately to keep the information from the defense.

Matsch now has all the materials subsequently turned over to the defense.

He will hear arguments at 9 a.m. Wednesday.

CNN correspondents Gina London and Susan Candiotti contributed to this report


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