13610 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 2 Criminal Action No. 96-CR-68 3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 vs. 6 TERRY LYNN NICHOLS, 7 Defendant. 8 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� 9 REPORTER'S TRANSCRIPT 10 (Trial to Jury: Volume 118) 11 컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴컴� 12 Proceedings before the HONORABLE RICHARD P. MATSCH, 13 Judge, United States District Court for the District of 14 Colorado, commencing at 8:45 a.m., on the 10th day of December, 15 1997, in Courtroom C-204, United States Courthouse, Denver, 16 Colorado. 17 18 19 20 21 22 23 24 Proceeding Recorded by Mechanical Stenography, Transcription Produced via Computer by Paul Zuckerman, 1929 Stout Street, 25 P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285 13611 1 APPEARANCES 2 PATRICK RYAN, United States Attorney for the Western 3 District of Oklahoma, and RANDAL SENGEL, Assistant U.S. 4 Attorney for the Western District of Oklahoma, 210 West Park 5 Avenue, Suite 400, Oklahoma City, Oklahoma, 73102, appearing 6 for the plaintiff. 7 LARRY MACKEY, BETH WILKINSON, GEOFFREY MEARNS, JAMIE 8 ORENSTEIN, and AITAN GOELMAN, Special Attorneys to the U.S. 9 Attorney General, 1961 Stout Street, Suite 1200, Denver, 10 Colorado, 80294, appearing for the plaintiff. 11 MICHAEL TIGAR, RONALD WOODS, ADAM THURSCHWELL, REID 12 NEUREITER, and JANE TIGAR, Attorneys at Law, 1120 Lincoln 13 Street, Suite 1308, Denver, Colorado, 80203, appearing for 14 Defendant Nichols. 15 * * * * * 16 PROCEEDINGS 17 (In open court at 8:45 a.m.) 18 THE COURT: Be seated, please. 19 Counsel? 20 (At the bench:) 21 (Bench Conference 118B1 is not herein transcribed by court 22 order. It is transcribed as a separate sealed transcript.) 23 24 25 13625 1 (In open court:) 2 (Jury in at 8:59 a.m.) 3 THE COURT: Members of the jury, good morning. 4 Another one of those days where it takes a little extra effort, 5 and we certainly all appreciate your doing that, giving us that 6 extra effort and getting here timely so that we can move 7 forward in the case. 8 Now, before taking the testimony of the next witness, 9 I want to instruct you with respect to a matter of evidence in 10 this case. You'll recall that on November the 26th, Theodore 11 Udell testified about his company's manufacture of Smurfit 12 plastic drums. Among other things, he said that his company 13 used a resin purchased from Nova Chemicals and an additive 14 package purchased from Allied Chemical in what he called a 15 proprietary formulation. 16 Mr. Udell also said that he thought the formulation 17 for the natural-colored drums was unique to his company. When 18 asked about this statement on cross-examination and again on 19 redirect examination, Mr. Udell referred to telephone 20 conversations that he had with persons employed at other 21 companies producing competitive products. He referred to his 22 making those calls in cooperation with the FBI and to notes 23 that he had made. 24 Because those notes and the involvement of the FBI in 25 these telephone calls was not previously known to defense 13626 1 counsel, Mr. Udell was called back as a witness after defense 2 counsel had on December 2 received copies of Mr. Udell's notes 3 and obtained additional information. Special Agent Jeff Hayes 4 of the FBI was also called as a witness. 5 You may also recall that Exhibit 2055 was referred to 6 on November the 26th and again in the testimony taken just this 7 Monday from Mr. Udell and Agent Hayes. That was identified as 8 a summary prepared by Mr. Udell from these telephone 9 conversations. Exhibit No. 2055 was not received in evidence 10 because it was based on hearsay and could not be considered to 11 be reliable information about the chemical composition of the 12 competitor's product. 13 Similarly, the testimony given by Mr. Udell both on 14 November the 26th and Monday, December the 8th, about these 15 telephone calls constitutes hearsay which should not be 16 considered as a part of the evidence in this case. 17 Accordingly, in your consideration of the evidence in 18 this case, you must now disregard the testimony of Mr. Udell 19 and Agent Hayes about any information provided to them in the 20 course of the telephone calls which they testified they made. 21 Now, with that, we're ready for the next witness. 22 MR. TIGAR: Mary Kay Sandels. 23 THE COURT: Thank you. 24 THE COURTROOM DEPUTY: Would you raise your right 25 hand, please. 13627 1 (Mary Kay Sandels affirmed.) 2 THE COURTROOM DEPUTY: Would you have a seat, please. 3 Would you state your full name for the record and 4 spell your last name. 5 THE WITNESS: Mary Kay Sandels, S-A-N-D-E-L-S. 6 THE COURTROOM DEPUTY: Thank you. 7 DIRECT EXAMINATION 8 BY MR. NEUREITER: 9 Q. Hello, Ms. Sandels. How are you? 10 A. Fine. 11 Q. Tell the jury where you're from. 12 A. Herington, Kansas. 13 Q. And how long have you lived in Herington? 14 A. 49 years. 15 Q. And how old are you? 16 A. 49. 17 Q. Are you married? 18 A. No. 19 Q. What do you do for a living presently? 20 A. At the present time, my main job is as a tour escort 21 coordinator for S & S Tours of Salina, Kansas. 22 Q. Do you take people on bus rides? 23 A. Yes, I do. 24 Q. And where do you go on these bus rides? 25 A. Okay. We do trips to Branson, South Dakota, Cripple Creek, 13628 Mary Kay Sandels - Direct 1 did one to Oklahoma recently, to Grove, Oklahoma. A lot of my 2 trips are day trips to gambling casinos in Kansas or Kansas 3 City, Missouri. I also do dinner theater trips, etc. 4 Q. Okay. What were you doing in April of 1995 for work? 5 A. Okay. At that time, I actually had four jobs. One of them 6 was with S & S Tours but not like I do now. I was working as a 7 volunteer in the Future Mart store. I was doing bookkeeping 8 for a plumber. And I also had a sideline job with Intele 9 Travel International, which makes airline reservations and 10 Amtrak reservations and that type of thing. 11 Q. You were a busy lady? 12 A. Yes. 13 Q. You mentioned one job at the Future Mart store. Tell us a 14 little bit more about that. You said you were a volunteer at 15 the Future Mart store, but that's -- you're really an employee 16 of sorts. Tell the jury what that was exactly. 17 A. Okay. Future Mart is a network-marketing-concept place. 18 The only way you get any money out of Future Mart is if you 19 sign people up under you and you get commissions. Network 20 marketing, think of Amway, and Future Mart is that type of 21 thing except we have stores. So anyone that worked in the 22 store was actually a volunteer. We didn't get an hourly wage. 23 Q. And if folks came in, would the volunteers try and sign 24 them up to be participants in the Future Mart? 25 A. Okay. If they were interested in buying something, your 13629 Mary Kay Sandels - Direct 1 first purchase made you a member of Future Mart, so you had to 2 fill out a form, and we put down what you bought on the form, 3 like that. 4 Q. And would the volunteer who signed the person up receive 5 some sort of compensation for future purchases from those new 6 signees? 7 A. The volunteer would unless someone else had sent them into 8 the store, and then they would be that person's customer. But 9 if no one had actually sent them into the store, they would 10 then be whoever was working as a volunteer, their customer. 11 Q. Okay. And you would get a commission on each of their 12 subsequent sales? 13 A. Yes. 14 Q. And then those people, in theory, would sign other people 15 up and everybody would get wealthy? 16 A. Right. Hopefully. 17 Q. Did it work? 18 A. Well, I'm not wealthy. 19 Q. Okay. I'm going to put on the ELMO what has not been 20 previously admitted as D1778 and zoom in. Do you recognize 21 that as a photograph of Future Mart? 22 A. Yes. That's where it was back in '95. 23 Q. Okay. Did the -- does the Future Mart still exist? 24 A. Yes. 25 Q. And back in 1995, where was this location? 13630 Mary Kay Sandels - Direct 1 A. 2 South Broadway in Herington. 2 Q. So right on the main street -- I guess there's a main 3 street and Broadway -- there's a main street in Herington -- 4 A. Broadway and Walnut are the two main streets there at that 5 corner. 6 Q. This is right smack-dab in the middle of town? 7 A. Yes. 8 MR. NEUREITER: We offer D1778, your Honor. 9 MR. ORENSTEIN: No objection. 10 THE COURT: Received. 11 BY MR. NEUREITER: 12 Q. Who -- you said you were a volunteer. Was there a -- a 13 manager or somebody who ran the store? 14 A. Alice Thompson was the main manager, yes. 15 Q. Were there other folks that you knew who were volunteers 16 and worked in the store, as well? 17 A. Yes. The main one -- myself and Diane Walters were the 18 main two people that worked in there. 19 Q. So Diane Walters, yourself and Alice Thompson? 20 A. We were the main ones, yes. 21 Q. And would you all talk about customers who would come in 22 and discuss their purchases? 23 A. Yes. 24 Q. Okay. Do you know Terry Nichols? Have you met Terry 25 Nichols might be a better question. 13631 Mary Kay Sandels - Direct 1 A. Yes. 2 Q. Do you see him here in the courtroom? 3 A. Yes. 4 Q. Is he the gentleman sitting in between the two defense 5 counsel over here? 6 A. Yes. 7 Q. When did you first meet Mr. Nichols? 8 A. Okay. The first time I saw Mr. Nichols was approximately 9 one week before the bombing. When he came to the store -- 10 Q. That's -- that's the time -- that's the best you can 11 recollect in terms of dates? If the bombing was April 19 -- 12 A. Okay. I -- as far as I can remember, it was like the 13 Thursday before. 14 Q. Thursday before. That would have been the 13th? 15 A. Which the bombing was the 19th. The next day would have 16 been the 20th, so the Thursday before would have been the 13th. 17 Q. Okay. Do you have a way to estimate to the best of your 18 recollection the time that you saw Mr. Nichols? 19 A. That day, it was shortly before noon. 20 Q. Was -- and where did you see him? Tell the jury about how 21 that came about. 22 A. He came into the store to make a purchase. Diane was 23 there. Diane waited on him. I was -- I had been there and I 24 was just getting ready to leave and Diane was taking over, and 25 she was waiting on him. 13632 Mary Kay Sandels - Direct 1 Q. How -- how can you pinpoint the time as well as you can 2 with two-and-a-half years after the fact? 3 A. Because I had something else I was going to be doing that 4 day around noon. Something I had to do. 5 Q. Was Mr. Nichols alone? 6 A. He had his little girl with him. 7 Q. And what was the purchase that Mr. Nichols made, if you 8 know from your own observation? 9 A. Okay. The reason I know is because I processed the orders 10 later because the office in -- Future Mart office, home office, 11 is in New Braunfels, Texas; and after someone made a purchase 12 in our store, we would process all the orders and we would have 13 to send those to Texas. And I usually did the processing of 14 all the orders, so I saw the order when I was ready to process 15 it so I know what he bought; plus I -- I know that he made 16 another purchase that was out of Alice Thompson's private 17 inventory or whatever you want to call it. 18 Q. Okay. Did you see Mr. Nichols' little girl running around 19 the store carrying anything that day when you were there? 20 A. She wanted him to buy her a doll. 21 Q. Okay. I now put on the ELMO what has not yet been 22 previously admitted, D1471, and ask you if you recognize that. 23 A. Yes. That's one of our order forms. 24 Q. And do you see the name up there? Don't read it. Do you 25 see it? 13633 Mary Kay Sandels - Direct 1 A. Uh-huh. 2 Q. And do you see the date up here? 3 A. Yes. 4 Q. And is this the type of document that would have been kept 5 in the ordinary course of the Future Mart's business? 6 A. Yes. 7 Q. Is this the document that would have been sent off to New 8 Braunfels and maintained there in their files to keep track of 9 who was -- who was a member? 10 A. Right. We always made a copy and kept one copy at the 11 office and sent one in to Texas. 12 MR. NEUREITER: We offer it, your Honor. 13 MR. ORENSTEIN: May I ask one question from here? 14 THE COURT: Yes. 15 VOIR DIRE EXAMINATION 16 BY MR. ORENSTEIN: 17 Q. Ma'am, my name is Jamie Orenstein. We spoke very briefly 18 last night; correct? 19 A. Okay. 20 Q. Beneath the date -- 21 MR. ORENSTEIN: And, Counsel, this is up on the ELMO. 22 That's fine. 23 BY MR. ORENSTEIN: 24 Q. Beneath the date, there are two lines of writing. 25 A. Uh-huh. 13634 Mary Kay Sandels - Voir Dire 1 Q. The second line beneath the date is your handwriting; 2 correct? 3 A. Correct. 4 Q. And that was when Mr. -- a second occasion when Mr. Nichols 5 came into the store, you wrote that down? 6 A. I wrote that at the time that I was processing the order. 7 MR. ORENSTEIN: No objection, your Honor. 8 THE COURT: Received. What's the number on that? 9 MR. NEUREITER: D1471, your Honor. 10 THE COURT: Thank you. Received. 11 MR. NEUREITER: And we move to publish. 12 THE COURT: Yes. You may. 13 DIRECT EXAMINATION CONTINUED 14 BY MR. NEUREITER: 15 Q. If you could just -- well, we were -- you were talking 16 about how when somebody makes a first-time purchase, they not 17 only are buying something, but they are also joining? Is that 18 what you said before? 19 A. Becoming a member, yeah. 20 Q. Okay. And does this document reflect both the membership 21 joining and the -- the purchase that was made on that day? 22 A. Yes. This is the form that we would fill out when the 23 person made the first purchase. 24 Q. And if you could read the date. If you can't see it on 25 there, I can zoom in. 13635 Mary Kay Sandels - Direct 1 A. Yeah. I can see it. 2 Q. All right. Could you read the date out loud? 3 A. 13th of April, '95. 4 Q. And could you read the name of the purchaser and the 5 address, please. 6 A. Terry Nichols, 109 South 2nd, Herington, Kansas. 7 Q. Okay. And what did Mr. Nichols buy that day? 8 A. The doll set for his little girl. 9 Q. Now, you also said you knew that Mr. Nichols bought some -- 10 something else from Alice Thompson? 11 A. Yes. 12 Q. Now, did you see that purchase happen? 13 A. No, I did not. 14 Q. Well, tell the jury, if you could, the second time you met 15 Mr. Nichols, if you did meet him again. 16 A. Yes. I met him the morning of the bombing, which would 17 have been April the 19th. 18 Q. And can you give any precision with respect to the time 19 that you met Mr. Nichols on that date. 20 A. As I remember, it was around 10:30 in the morning. 21 Q. And how can you tell us that it was at that particular 22 time? 23 A. Okay. Each day, we opened the store at 10, and I know he 24 didn't come right in after I opened the store. So it was a 25 little later than when I opened the store; and on Wednesdays -- 13636 Mary Kay Sandels - Direct 1 this happened to be a Wednesday -- someone usually always 2 brought me a chicken dinner at 11:00 or right shortly after. 3 Q. Is there a special place in Herington where they have 4 chicken dinners on Wednesdays? 5 A. Yes. It was at the Sale Barn. 6 Q. And you were looking forward to your chicken lunch that 7 day? 8 A. Right. And so Terry was there sometime between the time I 9 opened the store and the time my dinner came, and so that's 10 why, as I can recall it, it was probably around 10:30 or so in 11 the morning. 12 Q. Certainly before noon? 13 A. Before I had my dinner, yes. 14 Q. And is there some other way that you can recall when this 15 happened? Were you doing anything when Mr. Nichols came in or 16 around the time that Mr. Nichols came in? 17 A. Okay. Not necessarily doing something right at the time. 18 I had a call from a customer that lives in Abilene who was 19 calling to order some products from Future Mart; and he called, 20 I believe, right around the time Terry was leaving. 21 Q. Okay. By the way, we didn't talk about the types of items 22 you sell at Future Mart. Mr. Nichols bought a doll, you told 23 us. What other kinds of things are sold at Future Mart? 24 A. Okay. We have many things, all the way from synthetic oil 25 for your cars to health food products, to food products, to the 13637 Mary Kay Sandels - Direct 1 toys. Just a lot of different items. 2 Q. Okay. And Alice Thompson was the manager? 3 A. Yes. 4 Q. Did she have some items of her own that weren't part of the 5 Future Mart sales process that she kept in the store available 6 for sale? 7 A. Occasionally. 8 Q. Occasionally. Did that include water magnets? 9 A. Yes, it did. 10 Q. Could you tell the jury what a water magnet is. 11 A. A water magnet is a magnet that you attach to your water 12 line to get the impurities, the -- the mineral junk out of the 13 water lines that's not supposed to be good for your health. 14 And it's supposed to attach to the magnet area where you attach 15 it to your line and make your water healthier for you. 16 MR. NEUREITER: If I may approach, your Honor. 17 THE COURT: Yes. 18 MR. NEUREITER: I'm going to put in front of the 19 witness what has been previously admitted through Mr. Killam as 20 D794A and D794B. 21 MR. ORENSTEIN: May I take a brief look? 22 THE COURT: Yes. You may approach. 23 BY MR. NEUREITER: 24 Q. Have you ever seen items like those before? 25 A. Yes. 13638 Mary Kay Sandels - Direct 1 Q. Are those the kinds of water magnets that Alice Thompson 2 would sell in the Future Mart store? 3 A. Those are the kind that she had from a previous network 4 marketing business she was in. They are not actual Future Mart 5 water magnets. 6 Q. All right. But she had them in the store to sell to people 7 who might come in? 8 A. Right. 9 Q. And you wouldn't get a commission on those -- 10 A. No. 11 Q. -- water magnets if you sold them to a Future Mart person? 12 A. No. 13 Q. What's it say on the top of those two exhibits? 14 A. "Softron Magnetic Water Conditioning." 15 Q. If you could just hold it up for the jury and -- are there 16 two pieces in each one of those magnets? 17 A. Yeah. 18 Q. And -- 19 A. I really don't know that much about these. 20 Q. From what you do know, is it your understanding that they 21 fit around the pipe? 22 A. Right. 23 Q. And the impurities would stick to the magnet? 24 A. Right. The Future Mart ones went around the pipes. And 25 since these were her own private stock, I had no reason to even 13639 Mary Kay Sandels - Direct 1 see one of these being used. But the Future Mart ones, I did. 2 Q. You didn't see them being used, but you saw them there in 3 the store? 4 A. Yes. 5 Q. Okay. So Mr. Nichols comes in on April the 19th? 6 A. Uh-huh. 7 Q. And how many people were in the store at that time? 8 A. Just myself. 9 Q. And how many -- was Mr. Nichols accompanied by anyone? 10 A. No. 11 Q. He was alone? 12 A. Yes. 13 Q. And tell the jury about your conversation on that day. 14 A. Okay. He came in, because when he had purchased this -- 15 the week before when he had bought the doll set for his 16 daughter, he thought there should be some instructions with 17 this. So he came back in to check on the instructions for it. 18 And since I didn't actually sell it to him and I was not 19 involved with the Softron Company, I did not know the answers 20 to his questions. 21 Q. Okay. 22 A. And so I told him he would have to speak with Alice 23 Thompson. 24 Q. All right. What was his demeanor that morning within a 25 couple hours after the bombing in Oklahoma City? 13640 Mary Kay Sandels - Direct 1 A. He acted very normal. 2 Q. Had you heard about the bombing by that time? 3 A. At that point, I had heard that there was a bombing. I did 4 not know how bad it was. Someone had called and just said, 5 "Have you heard about the bombing," because Alice Thompson's 6 daughter lived in Oklahoma City. 7 And I said no, I hadn't. 8 And she said, "Yeah, there's been one down there." 9 But I had -- that's the only contact I knew about it. 10 Q. Did Mr. Nichols say anything about Oklahoma City that 11 morning? 12 A. No. We just discussed the water magnet. 13 Q. Describe his demeanor. 14 A. He acted perfectly normal. 15 Q. Was he cordial? 16 A. Yes. 17 Q. Belligerent in any way? 18 A. No. 19 Q. Was this someone coming in, demanding his instructions? 20 MR. ORENSTEIN: Objection to leading. 21 THE COURT: Sustained. 22 BY MR. NEUREITER: 23 Q. This was a pleasant conversation? 24 MR. ORENSTEIN: Objection to leading. 25 MR. NEUREITER: I apologize. 13641 Mary Kay Sandels - Direct 1 BY MR. NEUREITER: 2 Q. Was this a pleasant conversation? 3 A. Yes. 4 Q. Did you, in the course of your conversation, take some 5 notes? 6 A. The note I took was his phone number, because since I told 7 him he had to talk to Alice Thompson -- she was out of town on 8 Wednesday and Thursday of that week for the two days, and I 9 told him he would have to talk directly with her and that she 10 could probably call him back on Thursday. And so he gave me 11 his phone number and said to have her call when she got back to 12 the store, which she did get back on late Thursday afternoon, 13 early Thursday evening area. 14 Q. Let me stop you right there. Did -- did -- after you had 15 the conversation about the water magnets and you took the note 16 and number, did Mr. Nichols -- what happened then on the 19th? 17 A. Nothing. Nothing really. I mean, other than just a little 18 bit of chit-chat that I have no idea what it was at this point. 19 I mean, nothing unusual. This -- he was wanting information 20 about the water magnet and -- and I was trying to get the 21 information from him where Alice could call him and -- 22 Q. Did he leave? 23 A. Yeah. After he gave me his number. 24 Q. All right. How long an interaction was this in the 25 morning, would you say? 13642 Mary Kay Sandels - Direct 1 A. That he was there? 2 Q. Yeah. And you talked. 3 A. 15 minutes or less, probably. 4 Q. Okay. And then he left? 5 A. Uh-huh. 6 Q. Now, you had taken a note to give to Alice Thompson? 7 A. Right. 8 Q. And did you subsequently see Alice on the next day, on 9 Thursday, the 20th? 10 A. Yes. On Thursday nights, we usually had meetings at the 11 Future Mart store; and they were usually at 7:30. And we were 12 all getting there about that time to come to the meeting, and 13 she showed up so I gave her her note and -- 14 MR. ORENSTEIN: Object to conversation between the 15 two. 16 THE COURT: Well, we haven't got any conversation yet. 17 She just said she gave her the note. 18 MR. ORENSTEIN: Okay. 19 THE WITNESS: I gave her the note and she made the 20 phone call. 21 BY MR. NEUREITER: 22 Q. Did you describe what the note was about and where you had 23 gotten the number on that note? 24 A. I mean, the note said, "Please call Terry Nichols about the 25 water magnet," and his phone number. 13643 Mary Kay Sandels - Direct 1 Q. And it had the phone number on it that Mr. Nichols had 2 given you the day before? 3 A. Right. 4 Q. Did you see Mrs. Thompson -- is it Missus, or Miss? 5 A. Missus. 6 Q. -- Mrs. Thompson pick up a phone and dial that number? 7 A. Yes, I did. 8 Q. And did you overhear in form or substance conversation 9 about water magnets about the person from -- from 10 Ms. Thompson's end? Did you hear her talking about water 11 magnets after she dialed that number? 12 MR. ORENSTEIN: Object to relevance and hearsay. 13 THE COURT: Well, it isn't for the truth of it. It's 14 for a conversation that was being held. 15 MR. NEUREITER: That's correct, your Honor. 16 THE COURT: All right. 17 THE WITNESS: I saw her dial the phone. Someone 18 answered at the other end, and she discussed water magnets with 19 them. 20 MR. NEUREITER: Okay. One moment, your Honor. 21 THE COURT: Yes. 22 MR. NEUREITER: I think that's all I have; and if 23 counsel is not going to use the water magnets, I can retrieve 24 them now. 25 MR. ORENSTEIN: Sure. 13644 Mary Kay Sandels - Cross 1 CROSS-EXAMINATION 2 BY MR. ORENSTEIN: 3 Q. Good morning again, ma'am. 4 A. Good morning. 5 Q. Ma'am, you told us that Mr. Nichols came to your store the 6 first time that you saw him on April 13th; is that right? 7 A. Yes. 8 Q. And you're able to fix the date, among other ways, by the 9 fact, if I may use the display -- and just showing you once 10 again Exhibit -- Defense Exhibit D1471. One of the ways that 11 you can fix the date is through this -- this form which you 12 helped process; correct? 13 A. Uh-huh. 14 Q. Which is dated April 13, 1995. 15 A. Right. 16 Q. And that's the day that the doll set was purchased, and you 17 also know that that's the same date that these magnets were 18 purchased. 19 A. Right. 20 Q. And now you filled out -- and this is what I was asking you 21 about before -- the entry under Social Security number. You 22 wrote "none"? 23 A. Okay. Occasionally -- 24 MR. NEUREITER: Objection, relevance. 25 THE COURT: The question was did you write that. 13645 Mary Kay Sandels - Cross 1 THE WITNESS: Yes, I did. 2 BY MR. ORENSTEIN: 3 Q. Okay. And that's based on information that you received 4 about Mr. Nichols? 5 A. Yes. 6 Q. And now, who wrote the other portions of this top part, 7 from the signature on up? 8 A. Okay. Since I did not see it being filled out, all I can 9 do is assume the customer did, because that's who we would 10 request to do it. 11 Q. All right. 12 MR. NEUREITER: Objection to what she assumes, if she 13 doesn't have personal knowledge. 14 THE COURT: Well, that was the normal business 15 practice? 16 THE WITNESS: Yes. 17 THE COURT: All right. 18 THE WITNESS: The customer was supposed to fill it 19 out. 20 THE COURT: So that's what you're testifying about: 21 That's the routine. 22 THE WITNESS: Yes. 23 THE COURT: All right. 24 BY MR. ORENSTEIN: 25 Q. And just focussing in on this signature, the signature 13646 Mary Kay Sandels - Cross 1 obviously is going to be by the customer; correct? 2 A. Supposed to be. 3 Q. Right. Obviously, Ms. Thompson isn't going to put in the 4 signature of herself. 5 A. No. 6 Q. The phrase right above the signature, "without prejudice, 7 UCC 1-207": Is that anything to do with your business? 8 A. No. 9 Q. Do you know what that's there for? 10 A. No. 11 Q. Now, this first time when Mr. Nichols came into the store 12 that you were there on the 13th, you mentioned on direct 13 examination that there are membership meetings on Thursday 14 night? 15 A. Yes. 16 Q. Were you -- 17 A. There were back then. 18 Q. Back at that time. Yes. That's for all the members, 19 weekly meetings? 20 A. If they wanted to come. 21 Q. Right. And were you still there -- I know you left the 22 store at some point that morning while Mr. Nichols was still 23 there. Were you still there when Ms. Walters was telling 24 Mr. Nichols about these meetings? 25 A. Not that I remember anything about. 13647 Mary Kay Sandels - Cross 1 Q. Okay. 2 A. Because the order had not been written up or anything at 3 that point when I left that day. 4 Q. Okay. So you just don't know? 5 A. No. 6 Q. That's fine. 7 Now, Mr. Nichols bought some of these magnets that 8 day? 9 A. The day of the doll-set purchase? 10 Q. Right. 11 A. Yes. 12 Q. And then six days later, on April 19, he came back and 13 said, "Wait a minute, there are no instructions for this"; 14 right? 15 A. Right. 16 Q. Do you know of any reason why he -- he didn't come back in 17 the intervening days to talk about the lack of instructions? 18 A. I have no idea. 19 Q. You don't know what he was doing that kept him from coming 20 in? 21 A. No, I don't. 22 Q. Now, this is a fairly simple device. You put it around 23 your pipe. One side goes on one -- on one side of the pipe, 24 the other side goes on the other side of the pipe, and you just 25 stick them together; right? 13648 Mary Kay Sandels - Cross 1 A. Right. 2 Q. Now, the only two times you saw him are the two times that 3 you've testified about this morning, April 13th, sometime 4 around noon, and April 19th, that morning, sometime between 5 10:30 and noon; correct? I don't want to pin you down to 6 particular times. 7 A. Not that late. 8 Q. Certainly before noon? 9 A. Right. 10 Q. And -- but the morning of the 19th and the morning of the 11 13th are the only two times; is that right? 12 A. Right. 13 Q. And each time, he was -- he was in your presence for no 14 more than 15 minutes? 15 A. The first time, definitely not, because I was on my way 16 out. And the last time, no. 17 Q. Okay. So other than those two brief periods on the 13th 18 and the 19th, do you have any idea where Mr. Nichols was at any 19 point, who he was with, or what he was doing? 20 A. No, I do not. 21 MR. ORENSTEIN: Thank you, ma'am. I have nothing 22 further, your Honor. 23 THE COURT: Any follow-up questions? 24 MR. NEUREITER: Yes, your Honor. 25 If I may approach the witness, your Honor. 13649 Mary Kay Sandels - Cross 1 THE COURT: Yes. 2 MR. NEUREITER: I'm placing before the witness what 3 has been marked as D979B. I believe it's admitted into 4 evidence. And inside of that is D979A, which has also been 5 admitted into evidence. 6 REDIRECT EXAMINATION 7 BY MR. NEUREITER: 8 Q. Do you recognize that exhibit -- or those exhibits that 9 have been placed in front of you there? 10 A. Not if it came out of this box, no. 11 Q. Okay. Do you -- does it say "Softron" on the top of that 12 box? 13 A. Yes, it does. 14 Q. You don't recognize that as the kind of water magnet sold 15 at Future Mart? If the answer is no, it's no. That's fine. 16 A. No. Not really. 17 Q. Okay. Go ahead and look in that box and see if there is an 18 instruction packet. It might be that pink sheet that you first 19 grabbed. What does it say on -- 20 A. "Product Installation Guidelines." 21 Q. Okay. And that's a Softron box for Softron water magnets? 22 A. Right. 23 Q. Okay. And Mr. Nichols, when he came in, was curious as to 24 why there weren't instructions with the ones he had purchased, 25 to your recollection? 13650 Mary Kay Sandels - Redirect 1 A. Yes. When he came in on the 19th. 2 Q. Okay. Now, the prosecutor had showed this document, D1479, 3 and asked you about "none" in the Social-Security-number box. 4 On your trips to the -- the gambling areas in Topeka -- is that 5 where they are? 6 A. That's where the Kansas ones are, yes. North of Topeka. 7 Q. Do you have a certain responsibility with respect to your 8 job in filling out forms for the gamblers who take your tours? 9 A. Yes. 10 Q. And are those given to the casinos, or what are those forms 11 for? 12 MR. ORENSTEIN: Objection to relevance. 13 THE COURT: Sustained. 14 BY MR. NEUREITER: 15 Q. Do you have occasion to ask people on your trips for their 16 Social Security number? 17 MR. ORENSTEIN: Objection to relevance. 18 THE COURT: Sustained. 19 MR. NEUREITER: One moment, your Honor? 20 THE COURT: Yes. 21 MR. NEUREITER: No further questions, your Honor. 22 THE COURT: All right. 23 MR. ORENSTEIN: Nothing further. 24 THE COURT: You -- is the witness excused? 25 MR. NEUREITER: Yes, your Honor. If we could just 13651 1 make a proffer when the witness is out of the room. 2 THE COURT: That will come at a later time. 3 You may step down. You're excused. 4 Next witness. 5 MR. NEUREITER: If I could retrieve the exhibit, your 6 Honor. 7 THE COURT: Yes. 8 MR. TIGAR: Charles Farley. 9 THE COURTROOM DEPUTY: Would you raise your right 10 hand, please. 11 (Charles Farley affirmed.) 12 THE COURTROOM DEPUTY: Would you have a seat, please. 13 Would you state your full name for the record and 14 spell your last name. 15 THE WITNESS: Charles William Farley. F-A-R-L-E-Y. 16 THE COURTROOM DEPUTY: Thank you. 17 DIRECT EXAMINATION 18 BY MR. THURSCHWELL: 19 Q. Pardon me. Good morning, Mr. Farley. 20 A. Good morning. 21 Q. Mr. Farley, where do you live? 22 A. At the present time, I live in Wakefield, Kansas. 23 Q. Wakefield, Kansas. And can you tell the jury where that is 24 in relationship to Junction City, Kansas. 25 A. Wakefield is about 22 miles north of Junction City. 13652 Charles Farley - Direct 1 Q. Are you married? 2 A. Yes, sir. 3 Q. Have children? 4 A. One. 5 Q. Okay. Are you currently employed? 6 Are you currently employed? 7 A. Yes, I am. 8 Q. And what is your employment? 9 A. My employment is Stag Hill Golf Course. 10 Q. I'm sorry? 11 A. Stag Hill Golf Course. 12 Q. Stag Hills Golf Course? 13 A. Yes. 14 Q. And what do you do there? 15 A. I'm a mechanic. 16 Q. What -- what are your -- very briefly, what sort of 17 vehicles do you service there? 18 A. I take care of all the motors in the golf carts. 19 Q. Okay. Now, I'm going to take you back to April of 1995. 20 A. Okay. 21 Q. Were you working at that time? 22 A. Yes, sir. 23 Q. And where were you working? 24 A. I was working for the Outdoor Recreation Center at Fort 25 Riley. 13653 Charles Farley - Direct 1 Q. And what is the Outdoor Recreation Center at Fort Riley? 2 A. Outdoor Recreation Center offers items for rent to military 3 personnel, whether they are active duty, retired, National 4 Guard, whatever. We have things like boats, campers, any 5 number of items that they can come in and rent. 6 Q. Okay. Largely related to outdoor recreation? 7 A. Yes. Sports. 8 Q. And what was your job there? 9 A. I was the mechanic there, also. 10 Q. Okay. Now, do you recall the evening of Tuesday, April 18? 11 A. Yes, sir. 12 Q. Did you have occasion to travel to Geary State Lake on that 13 evening? 14 A. Yes, sir, I did. 15 Q. And what -- what caused you to go there? 16 A. I had -- A couple of days before that, a fellow had come in 17 to Outdoor Recreation and had asked me how the fishing was down 18 at Geary State Fishing Lake. And I informed him that I hadn't 19 been there that year, being early in the spring like that, and 20 so I really couldn't help him out. That was another one of my 21 duties there at the -- at the Outdoor Recreation Center, was to 22 give out hunting and fishing information. 23 I'm an avid sportsman myself, and so they usually came 24 to me for the -- for those type of questions. And so I decided 25 that I should go down to Geary County State Lake the evening of 13654 Charles Farley - Direct 1 the 18th. I had actually gone into town -- 2 Q. Let me stop you there. Did you go during your work hours, 3 or after work hours? 4 A. No, sir. After work hours. 5 Q. And was that -- did you go immediately -- when did your 6 work end? 7 A. I got off at 5:00. 1700 hours. 8 Q. And when did you arrive at Geary State Lake? 9 A. Well, it would have been probably 15 minutes to the store, 10 probably spent another 15 or 20 minutes in the store. And then 11 the drive 5 or 6 miles down to Geary. I was probably at Geary 12 10 to 6, 6:00. Right in that area. 13 Q. Okay. You ran an errand before you went to Geary? 14 A. Yes, sir. 15 Q. Now, are you certain that -- of the date of this trip to 16 Geary Lake? 17 A. Yes, sir. Very much so. 18 Q. And how are you certain of the date? 19 A. I -- when I had stopped off at the store, the wife had 20 asked me to pick up some items for supper. And I had planned 21 on writing a check for it. When I got in there, I only had 22 about $5 in my pocket. When I got in the store, the items only 23 came to 2 or $3, so I just paid cash for it. And the next 24 morning, I didn't -- when I got to work, I didn't have enough 25 money for lunch. So I wrote a check out for cash where I 13655 Charles Farley - Direct 1 worked there at the Outdoor Rec Center. 2 Q. Do you -- do you frequently write checks at work? 3 A. Yes, sir. 4 Q. You do? 5 A. At that time, we did, yes. 6 Q. Okay. Would you recognize that check if you saw an image 7 of it? 8 A. Yes, sir. Probably made out to IMWRF. 9 Q. I'd like to show the witness what has not been admitted and 10 marked as D1883. 11 A. Yes, sir. That's my check. 12 Q. Sir, you recognize this as the check that you wrote? 13 A. Yes, sir. That's my signature. That's my check. 14 MR. THURSCHWELL: Your Honor, we'd move the admission 15 of D1883. 16 MR. GOELMAN: No objection. 17 THE COURT: Received. 18 MR. THURSCHWELL: If we could show the jury . . . 19 THE COURT: Yes. 20 BY MR. THURSCHWELL: 21 Q. Now, this is your signature in the lower right? 22 A. Yes, sir. 23 Q. Okay. And who is the check made out to? 24 A. It's made out to IMWRF. I-M-W-R-F. That stands for 25 Installation Morale Welfare Recreation Fund. 13656 Charles Farley - Direct 1 Q. Okay. And what was that organization at that time? 2 A. That's Outdoor Recreation. 3 Q. Okay. That was -- that was your employer? 4 A. Yes, sir. 5 Q. All right. And finally, what is the date that you see in 6 the upper right-hand corner? 7 A. 4-19-95. 8 Q. Now, at some point during that visit to Geary State Lake, 9 did you observe a Ryder truck? 10 A. Yes, sir. 11 Q. Before we get there, let me -- let me try to get you there. 12 MR. THURSCHWELL: I want to show the witness what has 13 been admitted as Government Exhibit G1982A and ask the witness 14 whether he recognizes this. 15 BY MR. THURSCHWELL: 16 Q. Do you recognize this? 17 A. Yes, sir. That's Geary State Fishing Lake. 18 Q. And what is this road running along here? 19 A. That's Highway 77. 20 Q. Okay. Can you show the jury with the light pen on the desk 21 in front of you -- it's the black pen with the wire attached -- 22 by touching the television screen beneath your desk how you 23 entered the lake area that night. 24 A. Okay. I came -- I came south on 77 to this point and came 25 in this direction. 13657 Charles Farley - Direct 1 Q. Okay. Now, is that the southernmost entrance to the lake? 2 A. No, sir. There is one further south than that, but it -- 3 the road doesn't wind around the lake. It just goes into a 4 small fishing area and a little boat dock area down there. 5 Q. Okay. Can you point that out? That entrance? 6 A. Yes, sir. That would be this area right here. It comes in 7 here. Comes up this way. There's a boat ramp down in this 8 way. And it comes over this way. There's a little picnic area 9 down in here. 10 Q. Okay. And that road does not connect with the road that 11 you took? 12 A. No, sir, it does not. 13 Q. All right. Now, where -- if you could indicate very 14 generally on this photograph where it is that you saw the Ryder 15 truck and how you got there. And I'm going to show you a 16 better map later, but just on this photograph where. 17 A. Okay. On this photograph, the Ryder truck would have been 18 oh, probably right in this area right here. 19 Q. Okay. And how did you get to that area from the entrance 20 that you pointed out? 21 A. By winding around the road. The road comes around the lake 22 like this. It feeds in and around back like this, comes out 23 this way. Up this way. It's probably a -- probably a 24 15-minute ride around the lake. Traveling that way. It's 25 pretty slow going up in there. It's all gravel. 13658 Charles Farley - Direct 1 Q. Now, make things a little easier. Let me show you what's 2 been marked as page 2. 3 MR. THURSCHWELL: Well, your Honor, may I approach the 4 witness? 5 THE COURT: Yes. 6 MR. THURSCHWELL: And I'm going to show him a two-page 7 exhibit marked for identification as D1882. 8 BY MR. THURSCHWELL: 9 Q. Can I ask what you see there and if you recognize it. 10 A. Oh. 11 Q. Page 1 -- what's on page 1? 12 A. It's "Enclosure No. 2." 13 Q. Title. Anything else on that page? 14 A. "Nichols' Exhibit D1882." 15 Q. What do you see on the second page? 16 A. This is a map of Geary State Fishing Lake, an overhead 17 topographical map by the looks of it. 18 Q. Okay. Have you seen this map before? 19 A. I've seen maps like this before. 20 Q. Do you see your signature anywhere on that map? 21 A. Yes, sir. Yes, sir. 22 Q. Okay. There's a date underneath it? 23 A. Yes, sir. 12-9-96. 24 Q. Was that the date that you first were shown this map? 25 A. Yes, sir. 13659 Charles Farley - Direct 1 Q. Okay. 2 MR. THURSCHWELL: Your Honor, we move the admission of 3 D1882. 4 MR. GOELMAN: No objection. 5 THE COURT: All right. Received. D1882. 6 BY MR. THURSCHWELL: 7 Q. Show the jury -- first, zooming out, Mr. Farley, this -- 8 now you've identified this as a topographical map of Geary 9 State Lake; is that correct? 10 A. Yes, sir. 11 Q. Can you just show the jury on this map where the point 12 where you entered the -- the lake area from Highway 77? 13 A. Yes, sir. Entered at this point right here. 14 Q. Okay. And where on this map did you observe the Ryder 15 truck? 16 A. The Ryder truck would have been located about right there. 17 Q. Okay. And do you see a road connecting that point to 18 Highway 77? 19 A. Yes, sir. 20 Q. Is that, in fact, a road? 21 A. That's a blacktop road. 22 Q. Okay. What kind of road is the road that runs along the 23 lake there that you've identified? 24 A. This road here is a gravel road. Okay? Now, this road at 25 the gate -- there is a gate here. It's blacktop from here down 13660 Charles Farley - Direct 1 to Highway 77. And from here back up this way, again, it's a 2 gravel road. 3 Q. Okay. Now, can you -- did there come a point in time in 4 your trip when you actually got out of your -- you got out of 5 your vehicle? 6 A. Yes, sir. 7 Q. What were you driving that night, by the way? 8 A. I had a Lincoln. An '88 Lincoln Town Car. 9 Q. Okay. Can you just show the jury by running the pen along 10 the road the route you took up to the point where you got out 11 of your -- your vehicle. 12 A. Yes, sir. I -- again, I came in from this direction. I 13 followed the road around like this, came back up through here, 14 came out, came out this gate, and turned around at this point, 15 went back in the gate. 16 Q. Now, let me stop you right there. At that time, did you 17 observe any Ryder truck or other vehicles? 18 A. No, sir. There were no vehicles at the lake at that time, 19 that I could see anyway. 20 Q. Okay. Where did you go from there? 21 A. Okay. At that time, I came back around this curve, and 22 there's a parking area located right here. Okay. I backed the 23 car into that point. I got out of the car and walked about 24 halfway down to the lake. 25 Q. What was your purpose in -- 13661 Charles Farley - Direct 1 A. Again, the customer had been into Outdoor Rec and asked me 2 about the fishing areas up there and what it looked like, and I 3 walked down to that point to kind of take a look at the lake to 4 see where the water level was. I fished Geary County a number 5 of times, and you can generally tell by the water level where 6 the fishing is going to be good at so -- 7 Q. Did there come another -- a point in time when you returned 8 to that north gate that you identified? 9 A. Yes, sir. 10 Q. Okay. And about how long a period of time was it between 11 the time that you stopped and the time that you got back to the 12 north gate? 13 A. It shouldn't have been any longer than probably 10 to 15 14 minutes. 15 Q. Okay. Now, I'm going to zoom in on that north gate area. 16 A. Okay. 17 Q. And ask, first, do you see some markings made along the 18 road there? 19 A. Yes, sir. 20 Q. Circles? Were those markings that you made at a previous 21 time? 22 A. Yes, sir. 23 Q. Okay. Without regard to those now, I want to ask you about 24 what you saw when you arrived back at the north gate. 25 A. At the gate itself? 13662 Charles Farley - Direct 1 Q. Yes. 2 A. Initially, as I came up the road here, as I came along this 3 road, when I got about to this point, I could see the Ryder 4 truck, which was in this area right here, and a brown car that 5 was setting in this area. 6 Q. Okay. 7 A. And setting in this area was a -- probably a 2-ton farm 8 truck. 9 Q. All right. And did you see anything ahead of the farm 10 truck? 11 A. After I got past the farm truck, I did, yes, sir. 12 Q. Okay. Now, let me go back. The Ryder truck that you saw, 13 can you estimate its size? 14 A. Probably not in feet. It was a -- one of the larger 15 trucks. It wasn't a small one. 16 Q. Okay. And did you notice whether it had a so-called granny 17 attic or an overhang over the cab? 18 A. I didn't notice. 19 Q. All right. Now, could you just make a little X where you 20 saw that Ryder truck. 21 And then you saw another vehicle just in front of it? 22 A. Just -- 23 Q. Let me back up. I'm sorry. Which direction was the Ryder 24 truck pointing? 25 A. Which was it pointing? 13663 Charles Farley - Direct 1 Q. Yes. 2 A. It was pointing to the east. 3 Q. And was it -- which side of the road was it -- which 4 direction is east on this map? 5 A. East is this way. 6 Q. Okay. And -- and which side of the road was it parked on? 7 A. It was parked on the south side of the road. 8 Q. South side of the road. Now, you said there was another 9 vehicle parked directly in front of it? 10 A. Yes, sir. 11 Q. Okay. And what was that vehicle? 12 A. It was a brown -- an older car. A heavy car. Maybe a 13 Buick deuce and a quarter. The old 225 Buick or a big 14 Oldsmobile of some kind. Maybe a 98, something like that. 15 Kind of a brownish color. 16 Q. Are you familiar with cars, automobiles, trucks and their 17 different models and years? 18 A. Pretty much, sir. I owned a body shop. 19 Q. Now, both of those vehicles, I take it from the map -- I'm 20 sorry. Could you put a little spot or X where you saw that 21 other brown vehicle? 22 A. Brown vehicle would have been right there. 23 Q. And do you recall about how far away from the Ryder truck 24 that was parked? 25 A. It was fairly close to the Ryder truck. 13664 Charles Farley - Direct 1 Q. Okay. 2 A. Probably 10 feet between them. 3 Q. Okay. Now, those were both, I take it, to the west of the 4 gate area where you exited? 5 A. Yes, sir. 6 Q. All right. Now, you mentioned one or two other vehicles, I 7 think you said, were parked to the east. 8 A. Yes, sir. 9 Q. Were those -- how many vehicles did you see when you got to 10 the gate? 11 A. Two. 12 Q. All right. And what -- 13 A. To the right. To the east. 14 Q. To the -- okay. What side of the road were they parked on? 15 A. Again on the south side. 16 Q. Okay. On the south side of the road. And moving east, 17 what was the first vehicle that you observed? 18 A. The first vehicle that I observed was the farm truck, and 19 it was -- the rear end of the farm truck was almost even with 20 the road coming out of the park, itself. 21 Q. With the -- with the eastern end of the gate area? 22 A. Yes, sir. 23 Q. That end of the park? 24 A. Right. 25 Q. Okay. Now, can you describe that what you're calling a 13665 Charles Farley - Direct 1 farm truck to the jury? 2 A. 2-ton, stake bed. 3 Q. What do you mean by -- what do you mean by stake bed? 4 A. It had a flatbed on the back with stakes on the side, a 5 wooden fence on the side, wooden rails. Loaded, completely 6 loaded. White bags sticking up even above the -- the fence, 7 the rails. It looked like it was completely weighted down. 8 That was my initial thought was that it had -- that it had 9 broken down and it was just bottomed out on the spring, and I 10 thought the thing had been broken and hence the Ryder truck and 11 they were just going to unload the thing and -- 12 Q. Okay. What -- was the vehicle then proceeding east, parked 13 in front of it? 14 A. Okay. 15 Q. Let me back -- what -- were all these vehicles parked in 16 the same -- pointing in the same direction? 17 A. Yes, sir. 18 Q. And what -- what direction was that? 19 A. That was east. 20 Q. They were all pointing east? 21 A. All pointing east. 22 Q. Proceeding east from the gate, what was the next vehicle 23 that you saw? 24 A. Okay. This vehicle right here -- and again, it was parked 25 directly in front of the farm truck -- was a '73 to a '75 13666 Charles Farley - Direct 1 Chevrolet or GMC 3/4-ton pickup. 2 Q. Okay. Now, do you recall the color of that? 3 A. Green and white, sir. 4 Q. Green and white? 5 A. Kind of a light green and white. 6 Q. Okay. 7 A. Very rusty on the -- on the bed. 8 Q. Did you see any individuals at that time when you got up 9 there to the gate? 10 A. Yes, sir. Initially, when I got to the gate, there was one 11 individual standing at the back of the farm truck, at the back 12 left corner of the farm truck. 13 Q. Okay. 14 A. I had to kind of inch my way out because I didn't know if 15 there was traffic coming from the other way. That's how close 16 that farm truck was parked to the gate. And as I inched my way 17 out, you know, kind of looking to my right to see if there were 18 vehicles coming, I looked to the left, also, to make sure there 19 wasn't anything coming that way. I seen three individuals 20 standing down between the Ryder truck and the brown car, one of 21 them standing in the -- in the road just a little bit, one of 22 them leaning against the front of the Ryder truck and the other 23 one just kind of standing between them. 24 Q. Now, do you -- could you describe any of those three 25 individuals? 13667 Charles Farley - Direct 1 A. No, sir. I just -- I glanced down that way. I seen them 2 standing there and turned my head away. I have no idea what 3 they were -- 4 Q. You couldn't provide any description at all? 5 A. No, sir. 6 Q. How about -- now, did you see any other individuals apart 7 from those four? 8 A. Yes, sir. 9 Q. Okay. 10 A. One other individual. As I rounded the truck, the farm 11 truck, coming out, I also turned to the east. When I come out 12 the gate here, I turned and came this direction. As soon as I 13 was out, I seen an individual walking alongside of the farm 14 truck. He was probably at the cab when I first seen him. And 15 I was really going slow. I mean, I was just creeping. And I 16 was going to roll the window down and ask him if he needed some 17 help. And -- give me kind of a dirty look and I decided, well, 18 if you're going to be that way, me too, and I'm just going to 19 leave; so I just drove away. 20 Q. Okay. Did you get a clear look at that individual? 21 A. Yes, sir, I did. 22 Q. It was still light out enough for you to -- 23 A. Yes. 24 Q. -- view him. Let me come back to the stake-bed truck. You 25 said it was heavily loaded down with white bags? 13668 Charles Farley - Direct 1 A. Yes, sir. 2 Q. Did you -- from prior experience, did you recognize those 3 bags? 4 A. I believe so, sir. 5 Q. What did you think at the time when you saw them? 6 A. I thought it was ammonium nitrate fertilizer. 7 Q. Okay. And what did you base that on? 8 A. Well, as a kid, I grew up in Iowa on a farm, and we used to 9 use them -- use ammonium nitrate fertilizer to make stock ponds 10 with. 11 Q. To make stock ponds with? 12 A. Stock ponds. 13 Q. What -- what do you mean by that? 14 A. Water ponds. To feed -- you know, to water cattle, pigs, 15 what have you. 16 Q. And how did you -- how did you use ammonium nitrate to make 17 stock ponds? 18 A. Back then, you know, the average farmer didn't have a 19 bulldozer. 20 MR. GOELMAN: I'm going to object to this answer and 21 question as irrelevant. 22 THE COURT: Overruled. Go ahead. 23 THE WITNESS: Back then, you know, the farmer didn't 24 have a bulldozer or bucket loader or skid loader or any of 25 that. He just used what he had. And ammonium nitrate 13669 Charles Farley - Direct 1 fertilizer was an excellent explosive. Mix a little bit of 2 used motor oil with a couple of bags of it, you know, put a 3 blasting cap in it, and you could blow a pretty good-sized 4 stock pond, you know. Fill it up with water, and you had water 5 for your cattle. 6 BY MR. THURSCHWELL: 7 Q. Had you -- had you used ammonium nitrate to do that? 8 A. My father had, yes, sir. 9 Q. Okay. 10 A. I had been around it. 11 Q. And so -- and -- did these bags that you observed in the 12 truck resemble the bags of ammonium nitrate that you recalled 13 from that experience? 14 A. Yes, sir. 15 Q. All right. Now, let me come back to the individual -- the 16 last individual you mentioned. I think you said he gave you a 17 dirty look? 18 A. Yes, sir. 19 Q. Well, let me ask this: Did there come a time when you 20 reported this -- these events to the FBI? 21 A. Yes, sir. 22 Q. And was there some event that caused you to decide to go 23 ahead and make that phone call? 24 A. Yes, sir. 25 Q. All right. And without telling the jury what you heard, 13670 Charles Farley - Direct 1 can you tell them what you saw that caused you something to 2 make you decide to go ahead and call the FBI. 3 A. I had -- I hadn't really placed the fact that -- you know, 4 that it had taken place at Geary County or what I'd seen. I 5 didn't realize, you know, what it was, probably like everybody 6 else. And when they came out on the news and said that the 7 bomb had possibly been mixed at Geary County State Fishing 8 Lake, I started putting two and two together immediately. And 9 that same day, we were watching -- and I can't remember what 10 channel it was. It was a channel out of Topeka. We had cable 11 at the time. I seen the individual again on TV. 12 Q. Okay. Now, if you saw a photograph of that individual, 13 would you recognize him? 14 A. Yes, sir. 15 MR. THURSCHWELL: I would like to show the witness 16 what has not been admitted but marked as Defense Exhibit D1884. 17 This has not been previously admitted. Sorry. I didn't 18 realize -- 19 BY MR. THURSCHWELL: 20 Q. Mr. Farley, do you -- do you recognize the individual 21 depicted in this picture? 22 A. Yes, sir. 23 Q. And who is that individual? 24 A. That was the individual that was standing at the door of 25 the truck, the individual that gave me a dirty look. 13671 Charles Farley - Direct 1 Q. Okay. And do you recognize this individual as the one that 2 you saw on television? 3 A. Yes, sir. 4 MR. THURSCHWELL: We move the admission of D1884. 5 MR. GOELMAN: No objection. 6 THE COURT: Received. It may be shown. 7 BY MR. THURSCHWELL: 8 Q. Mr. Farley, what did you do to contact the FBI? 9 A. Initially, I called the 1-800 number that -- excuse me -- 10 that appeared on the television at that time and really got no 11 response from them. I was a little nervous at the time, a 12 little upset. 13 Q. And why was that? 14 A. Well, I was -- you know, if you get people that do stuff 15 like that, what's one or two more people, the way I looked at 16 it. Kind of putting my family in jeopardy. 17 Q. Why were you putting your family in jeopardy? 18 A. Well, if I can recognize someone, you know -- 19 Q. Was there a specific concern that you had at that time 20 based on -- 21 A. Not specific. I just, you know -- I was really close to 22 this guy, you know. We were closer than myself to the young 23 lady setting here. I'm sure if I can recognize him, he can 24 sure recognize me. 25 Q. Okay. 13672 Charles Farley - Direct 1 A. Okay. 2 Q. All right. Go ahead. You contacted the FBI. You called 3 the FBI? 4 A. Called the FBI and really got no response from -- from the 5 1-800 number that I felt -- they told me to contact the local 6 FBI. They had set up -- FBI had set up a command post there on 7 Fort Riley, and we had no telephone numbers to contact them 8 with. I called the post MPs, the post CID, Criminal 9 Investigation Division. They couldn't give me a number to 10 them. And about two weeks later, an FBI agent showed up at my 11 workplace, which was Outdoor Recreation. 12 Q. And -- and did that agent immediately approach you to speak 13 to you about the phone call you had made? 14 MR. GOELMAN: Objection, your Honor. 15 THE COURT: Overruled. 16 THE WITNESS: Yes, sir, he came in. I assumed that he 17 was there to talk to me. I was on my way out the door. I was 18 going downtown to pick up some parts. And he came in and -- 19 and approached the young lady that was at the counter and 20 identified himself as an FBI agent. I immediately turned 21 around and said, "Sir, I believe I'm the one that you want to 22 talk to." And at that time, I took him back to the back of the 23 Outdoor Recreation building to my office in the maintenance bay 24 and proceeded to tell him my -- my story. 25 MR. THURSCHWELL: Nothing further, your Honor. 13673 1 THE COURT: All right. Mr. Goelman. 2 CROSS-EXAMINATION 3 BY MR. GOELMAN: 4 Q. Good morning, Mr. Farley. 5 A. Good morning. 6 Q. Where did you live at the time of the Oklahoma City 7 bombing? 8 A. I lived in Milford. 9 Q. Milford, Kansas? 10 A. Yes. 11 Q. About how far is that from Junction City? 12 A. Probably 12 miles north of Junction City on the same 13 highway there. 14 Q. And after the bombing in Oklahoma City, did you -- did you 15 hear about it? 16 A. Yes, sir. Immediately. You know, we see the TV. I guess 17 it was probably -- oh, it was probably noon or later before we 18 actually, you know, turned the TV on there at work and got 19 pictures. 20 Q. Did you hear about it when investigators traced the bomb 21 truck to Junction City? 22 A. Well, I -- I kind of assumed that was all in one -- you 23 know, I seen it on one newscast; and then at the same time, 24 they said, yeah, the truck had been rented in Junction City 25 and -- and the bomb had been mixed at Geary County State 13674 Charles Farley - Cross 1 Fishing Lake, or they assumed it had been. They were -- 2 Q. Did you learn after the bombing that investigators had 3 suspected that there was ammonium nitrate used in the bomb? 4 A. I don't know. I can't say. I don't know. 5 Q. About how long after the bombing was it when you first 6 heard about it? 7 A. About a week. 8 Q. And did you work during that week? 9 A. Yes, sir. 10 Q. Okay. You didn't hear about it at all in the seven days 11 after the bombing, though? 12 A. You know, the TV at work, we don't have cable. And all we 13 get is the Fort Riley channel that's piped in there. So 14 whatever come over the Fort Riley channel at work is what we 15 got. 16 Q. And the Fort Riley channel never had anything about the 17 bombing for the week afterwards? 18 A. Not very much. Very little. 19 Q. You -- I'm sorry. 20 A. Very little. 21 Q. Very little, but maybe something? 22 A. Possibly. Possibly. You know, the investigation is 23 ongoing and -- something to that effect. Now, again, I did 24 watch at night when I got home. 25 Q. You did? 13675 Charles Farley - Cross 1 A. Sure. 2 Q. But during the week after the bombing, you never saw 3 anything about the bombing? 4 A. Not until that time. 5 Q. You did have cable at home in April of 1995, didn't you, 6 sir? 7 A. Yes, sir. 8 Q. And you stated on direct examination that you were familiar 9 with ammonium nitrate from your childhood; is that right? 10 A. Yes, sir. 11 Q. Familiar with the explosive capabilities of ammonium 12 nitrate? 13 A. Yes, sir. 14 Q. And you recognized those white bags that you saw in the 15 back of the farm truck on April 18 as ammonium nitrate, didn't 16 you? 17 A. I assumed they were, yes, sir. 18 Q. And you at that time knew that ammonium nitrate could be 19 used to build a bomb? 20 A. Yes, sir. But it's also a fertilizer. 21 Q. Sure. But you did know about its explosive capabilities? 22 A. Oh, yeah. Sure. 23 Q. And until you saw that newscast where you recognized that 24 individual, you never called the FBI and told them that you'd 25 seen a -- 13676 Charles Farley - Cross 1 A. No, sir. 2 Q. -- you'd seen a truck -- 3 A. I had no cause to -- 4 Q. Excuse me -- seen a truck with bags of ammonium nitrate, 5 did you, sir? 6 A. No, sir. 7 Q. And you never called them and said you'd seen that truck 8 right near a Ryder rental truck, did you, sir? 9 A. No, sir. 10 Q. Now, your job at the time of the bombing was mechanic; is 11 that right? 12 A. Yes, sir. 13 Q. No one asked you to go out to Geary Lake specifically to 14 scout out the fishing, did they, sir? 15 A. No. They didn't ask me to do that. 16 Q. You took it upon your -- 17 A. I wasn't instructed to do that. No. Yes, sir, I did it on 18 my own. I did it on my own. 19 THE COURT: We've got to do -- we've got to do this 20 question and answer -- 21 THE WITNESS: Yes, sir. 22 THE COURT: -- so the court reporter can get it down. 23 So let's wait for the question and you wait for the answer. 24 Proceed. 25 BY MR. GOELMAN: 13677 Charles Farley - Cross 1 Q. Going out there on April 18 was not part of your official 2 duties at the Outdoor Recreation area, was it, sir? 3 A. No, sir. 4 MR. GOELMAN: Court's indulgence. 5 BY MR. GOELMAN: 6 Q. Showing you Government Exhibit 1982A. You've indicated on 7 direct, sir, that the route you took, you came -- were you 8 going south or north on 77? 9 A. I was coming south on 77. 10 Q. Coming south on 77. You turned to this road right here? 11 A. Yes, sir. 12 Q. And then followed it down there? 13 A. Yes, sir. 14 Q. Now, you fished at Geary Lake before? 15 A. Yes, sir. 16 Q. So you know that there's a fishing pier down here; right? 17 A. There's a little dock down there, yes. 18 Q. And that's where people fish off? 19 A. They fish down there. There's a boat ramp down in that 20 area, also. 21 Q. There's a boat ramp and -- and a little pier? 22 A. A little picnic area, yes, sir. 23 Q. Now, you didn't go down there on April 18, 1995, did you, 24 sir? 25 A. No, sir. 13678 Charles Farley - Cross 1 Q. And your purpose in going to Geary Lake was to check out 2 and see how the fishing was? 3 A. To see how -- what the water level was. By looking at the 4 water level in that lake, you can generally determine how the 5 fishing is going to be at that time of year. Croppie is -- you 6 know, in April, croppie are available. 7 Q. Mr. Farley, you went out to Geary Lake in order to see how 8 the fishing was so you could inform customers about that? 9 A. Yes, sir. 10 Q. And there's no way to get from this road down here up to 11 where you saw the Ryder truck here without going back on 77, is 12 there, sir? 13 A. Not that I'm aware of. 14 Q. I mean, there's no kind of shortcut back here? 15 A. You have to go across -- cross country, so to speak. 16 Q. Now, at the time that you went out to Geary Lake on 17 April 18, 1995, Mr. Farley, you didn't think any of your 18 observations were particularly significant at the time, did 19 you? 20 A. I didn't go out there on the 19th, sir. 21 Q. The 18th. You didn't think any of your observations were 22 particularly significant, did you, sir? 23 A. No, sir, I didn't. 24 Q. And how long did you spend at that intersection where the 25 gravel road meets the blacktop road? 13679 Charles Farley - Cross 1 A. Total, probably a minute. 2 Q. You sat at that intersection for a minute? 3 A. By the time I worked my way out -- I slowed down. Like I 4 told you, I was going to talk to the individual, ask him if he 5 needed help. The whole thing probably lasted a minute. 6 Q. Did you actually stop your car at any point? 7 A. Yes, sir. 8 Q. Did you put it into park? 9 A. No, sir. 10 Q. How long did you stop your car for? 11 A. I stopped, you know, pulling out because I was afraid there 12 were vehicles coming or traffic coming from where I couldn't 13 see it around the farm truck. And slowly inched my way 14 forward. 15 Q. Did any vehicles pass you on the blacktop road while you 16 were sitting there? You said that -- 17 A. As I turned out onto the blacktop road? 18 Q. You said you were waiting to see if traffic was going to go 19 by; right? 20 A. There was no traffic. 21 Q. No traffic. But you still stayed at that intersection for 22 a minute? 23 A. Not right at the intersection, sir. From the time I 24 entered or got to the intersection until the time I pulled away 25 from that front truck was probably a minute's time. 13680 Charles Farley - Cross 1 Q. And during that period of time, you were able to see a 2 brown car to your left; is that right? 3 A. Yes, sir. 4 Q. You agree that that car was about 40 to 50 yards away? 5 A. No, sir. I'd say 20. 6 Q. Did you previously say 40 to 50 yards away? 7 A. Sir, it's been two years ago. I don't know. 8 Q. You don't remember saying that? 9 A. No, sir. 10 Q. Behind that brown car, you saw a Ryder truck, sir? 11 A. Yes, sir. 12 Q. And you noticed three individuals behind that Ryder truck? 13 A. Three individuals in front of the Ryder truck: one leaning 14 against the Ryder truck, one standing in the roadway, and one 15 just standing between the truck and the car. 16 Q. And that car that was a brown car that was on your left, 17 Mr. Farley; is that right? 18 A. Yes, sir. 19 Q. Had you seen that car previously that day? 20 A. Yes, sir. 21 Q. And tell us about that. 22 A. The area where I showed you on the map where I was parked, 23 where I had backed into the walk down toward the lake, as I 24 came back up and got in my car, just before I -- I had my door 25 to my car open and I heard a vehicle coming and I turned and 13681 Charles Farley - Cross 1 looked, and that car was coming up the road. If we could have 2 the map again, I could show you -- 3 Q. Sure thing. I'm showing you 1982A. 4 A. No. The -- the other map. 5 Q. The aerial? 6 A. Yes. Okay. Again, as I was parked in this area, okay, the 7 brown car approached me for the first time. The first time I 8 noticed it, it was probably right in this area. That's about 9 when I heard it. And it came up this way and just continued on 10 around this direction. I sat there for approximately a minute. 11 I lit up a cigarette, rolled my window down, and then pulled 12 out. 13 Q. The first time that you spotted that brown car, Mr. Farley, 14 was it approximately 1 kilometer away from you? 15 A. Probably about that, yeah. About 1,000 meters. 16 Q. Okay. In the time that you were at that intersection 17 between the gravel road and the blacktop road, sir, you were 18 able to estimate the year of the farm truck that you saw? 19 A. Yes, sir, I was. 20 Q. You estimated that as between 1950 and 1953? 21 A. Yes, sir. 22 Q. In fact, you were so sure about the particular year of that 23 farm truck that when you were shown an FBI report of your 24 initial interview, you corrected the model of that car from 25 late 40's, early 50's, to 1950 to 1953; isn't that right? 13682 Charles Farley - Cross 1 A. Yes, sir. 2 Q. And you were able to see that the stakes had been removed 3 from the back of that particular truck? 4 A. Yes, sir. 5 Q. And able to see that there was -- what there were -- there 6 were white bags of what you thought were ammonium nitrate; 7 isn't that right? 8 A. Yes, sir. 9 Q. And that those bags were piled seven or eight bags high? 10 A. Yes, sir. 11 Q. And that they were higher in the middle of the truck than 12 they were on the sides of the truck; is that right? 13 A. Yes, sir. 14 Q. They were about 6 to 8 inches higher in the middle of the 15 truck than they were the side of the truck, is that fair? 16 A. That would be a fair assumption. 17 Q. You also saw two men to your right in addition to the three 18 men to your left? 19 A. Yes, sir. 20 Q. And the man closest to you when you initially made that 21 turn to your right, he was a younger man? 22 A. Younger than the individual that I could actually identify, 23 yes, sir. 24 Q. About how old was he? 25 A. Under 30. Above 25. Under 30. 13683 Charles Farley - Cross 1 Q. He had long hair; is that right? 2 A. Yes, sir. Long, dark hair. 3 Q. Was wearing jeans? 4 A. Wearing blue jeans and a black T-shirt. 5 Q. Black T-shirt that had some writing on it; is that right? 6 A. Yes, sir. 7 Q. And he was carrying on his hip, was he not, a folding 8 knife? 9 A. Yes, sir. It was in a leather -- a leather case. 10 Q. And you were able to see that case that he was carrying 11 this folding knife in was not Cordura; is that right? 12 A. No, sir. It was leather. 13 Q. You were able to tell that in the time that you made that 14 turn? 15 A. Yes, sir. 16 Q. And this other individual whose picture you've identified 17 today, he -- he had a beard; is that right? 18 A. Yes, sir. 19 Q. No mustache? 20 A. No, sir. 21 Q. What was he wearing? 22 A. He had on slacks and a sport shirt. Short-sleeved sport 23 shirt. 24 Q. Short-sleeved sport shirt? 25 A. Yes, sir. 13684 Charles Farley - Cross 1 Q. You previously indicated that he was wearing a long-sleeved 2 shirt? 3 A. Not that I'm aware of, I didn't, no. 4 Q. From that brief encounter that you had with this man, did 5 you later become convinced that you could pick him out of 200 6 people? 7 A. Yes, sir. 8 Q. And he gave you a mean look; is that right, sir? 9 A. Yes, sir, he did. 10 Q. Kind of glared at you? 11 A. Just kind of glared at me, kind of like, you know, what are 12 you doing here and -- that was my opinion. 13 Q. Did he actually lean down and peek into your window when he 14 glared at you? 15 A. He didn't have to, sir. He was directly in front of my 16 windshield, to the right side of my windshield. 17 Q. You were looking at him through the windshield, not through 18 the side window? 19 A. Yes, sir. 20 Q. And in front of that particular farm truck, you saw another 21 truck; is that right? 22 A. Yes, sir. 23 Q. Pickup truck? 24 A. Yes, sir. 25 Q. With a green cab? 13685 Charles Farley - Cross 1 A. The farm truck had a green cab. 2 Q. What color was the pickup truck? 3 A. The pickup truck was green and white. 4 Q. Green and white. 5 A. Yes, sir. 6 Q. And what model was it? 7 A. '70 -- I'm sorry. '73 to '75 Chevrolet or GMC. 8 Q. Could you tell me anything -- 9 A. Three-quarter-ton. 10 Q. I'm sorry. What? 11 A. Three-quarter-ton. 12 Q. Three-quarter-ton. And could you tell how many lug nuts 13 were on this particular truck? 14 A. There were six, sir. 15 Q. You counted six lug nuts? 16 A. You know, you do that at a glance. When you're used to 17 working on those types vehicles -- which I had done many times 18 in my body shop -- you know, it's not something you count. You 19 just look at it and recognize it as such. 20 Q. Because of the number of lug nuts, is that what made you 21 conclude that it was a three-quarter-ton truck? 22 A. Yes, sir. 23 Q. And if it had five lug nuts, it would have been a half-ton 24 truck; is that right? 25 A. Half-ton, yes, sir. 13686 Charles Farley - Cross 1 Q. Have you previously said that there were actually eight lug 2 nuts on that particular truck? 3 A. Not to my recall, sir. 4 Q. Do you remember talking to an FBI agent and two other 5 people from the government back in September 1996? 6 A. Yes, sir. 7 Q. At that point, sir, you indicated that a -- that you knew 8 it was a three-quarter-ton vehicle because a three-quarter-ton 9 vehicle has eight lug nuts and a half-ton vehicle has five; 10 isn't that right? 11 A. Not to my recall, I didn't say that. 12 Q. Now, is it true that you couldn't see except for the man 13 who you identified here today -- you couldn't see the other men 14 well enough to identify who they were? 15 A. No, sir. 16 Q. Couldn't see if -- well enough to identify if they were any 17 of the people you later saw on television as suspects in this 18 case? 19 A. No, sir. The first individual that I seen, the fellow with 20 the blue jeans, the long hair, black T-shirt, kind of stocky 21 fellow -- you know, he was -- I wouldn't call him fat, but he 22 was pretty well -- pretty well put together. 23 Q. Did he say anything during the time it took you to turn the 24 corner? 25 A. That individual did not, no. 13687 Charles Farley - Cross 1 Q. It was the individual with the beard who said something? 2 A. Yes, sir. 3 Q. Again, what did he say? 4 A. His comment was something to the effect of "we've got to 5 get this done," or "we've got to get going, we've got to get 6 moving." Something like that. 7 Q. Sir, do you remember talking to a Mr. David Fechheimer? 8 A. Yes, sir. 9 Q. He was an investigator for Tim McVeigh; is that right? 10 A. Yes, sir. 11 Q. And that was on December 13, 1996; is that right? 12 A. I guess so. 13 Q. Did you tell him that it was actually the younger man who 14 yelled at the older man with the beard and said, "Hurry up, 15 we've got to get moving"? 16 A. No, sir, I did not tell him that. 17 Q. You did not tell Mr. Fechheimer that. Were you by yourself 18 when you were at Geary Lake on April 18th? 19 A. No, sir, I was not. 20 Q. Who were you with? 21 A. My daughter was with me. 22 Q. And where was she riding? 23 A. She was in the passenger seat next to me. 24 Q. What's her name? 25 A. Her name is Beth. 13688 Charles Farley - Cross 1 Q. And how old was she at the time? 2 A. Probably 17. 3 Q. 17? 4 A. Yeah. 5 Q. Did you previously say that she was 19 at the time? 6 A. She's mentally handicapped, sir. 7 Q. Did you previously indicate that you were by yourself, sir? 8 A. When I had -- the very first FBI agent I talked to, yes, 9 sir, I told him that. 10 Q. Okay. Do you remember talking to H. C. Bodley, an 11 investigator for Mr. Nichols? 12 A. Yes. 13 Q. And that was on October 21, 1997; isn't that right? 14 A. Yes, sir. 15 Q. A month and a half ago? 16 A. Yes, sir. 17 Q. You told him that you were by yourself, didn't you, sir? 18 A. He didn't ask me, sir. 19 Q. Did you tell him someone was with you? 20 A. He didn't ask me, sir. 21 Q. Did you tell him that someone was with you? 22 A. No, sir, I did not. 23 MR. GOELMAN: One moment, your Honor. 24 THE COURT: Yes. 25 MR. GOELMAN: That's all I have. 13689 Charles Farley - Cross 1 MR. THURSCHWELL: One question, your Honor. 2 THE COURT: All right. 3 REDIRECT EXAMINATION 4 BY MR. THURSCHWELL: 5 Q. Sir, why didn't you -- why did you not tell the FBI about 6 the fact that your daughter was with you the very first time 7 that you spoke to them? 8 A. I'm trying to protect my daughter. 9 Q. You're trying to protect your daughter? 10 A. Yes, sir. Like I said, she's mildly mentally handicapped 11 and she doesn't need this. 12 MR. THURSCHWELL: Nothing further, your Honor. The 13 witness is excused. 14 MR. GOELMAN: Your Honor, I just have one more 15 question. 16 THE COURT: All right. 17 RECROSS-EXAMINATION 18 BY MR. GOELMAN: 19 Q. Mr. Farley, earlier, you told us that you went from work to 20 the store and then directly to Geary Lake; is that right? 21 A. Yes, sir. 22 Q. Was your daughter at work with you? 23 A. Yes, sir. 24 Q. The whole day? 25 A. No, sir. I picked her up after school. 13690 1 MR. GOELMAN: Nothing further. 2 MR. THURSCHWELL: Nothing further, your Honor. 3 THE COURT: Excusing the witness? 4 MR. THURSCHWELL: Yes. 5 THE COURT: All right. You may step down. You're 6 excused. 7 MR. TIGAR: May I consult with Ms. Hasfjord, your 8 Honor? 9 THE COURT: Yes. 10 MR. TIGAR: Call William Tobin, your Honor. 11 THE COURT: I'd like to take the morning recess. 12 MR. TIGAR: I'm sorry, your Honor. That -- I think 13 that would help us. I'm making a little change in the order 14 here. 15 THE COURT: All right. Well, we'll take our 16 midmorning recess, members of the jury, again, remembering that 17 we've still a ways to go and you still have an obligation to 18 wait till we've heard it all before you talk about it or think 19 about it. And accordingly, please withhold any comments or 20 views about the case until it's given to you for decision. You 21 need to avoid things outside the evidence that could influence 22 you. 23 So you're now excused. 20 minutes. 24 (Jury out at 10:16 a.m.) 25 THE COURT: Okay. Recess. 13691 1 (Recess at 10:16 a.m.) 2 (Reconvened at 10:37 a.m.) 3 THE COURT: Be seated, please. 4 MR. THURSCHWELL: Your Honor, may we approach? 5 THE COURT: Yes. 6 (At the bench:) 7 (Bench Conference 118B2 is not herein transcribed by court 8 order. It is transcribed as a separate sealed transcript.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13697 1 (In open court:) 2 (Jury in at 10:41 a.m.), 3 THE COURT: Next witness, please. 4 MR. TIGAR: Call William Tobin. 5 THE COURT: All right. 6 THE COURTROOM DEPUTY: Would you raise your right 7 hand, please. 8 (William Tobin affirmed.) 9 THE COURTROOM DEPUTY: Would you have a seat, please. 10 Would you state your full name for the record and 11 spell your last name. 12 THE WITNESS: William A. Tobin, T-O-B-I-N. 13 THE COURTROOM DEPUTY: Thank you. 14 DIRECT EXAMINATION 15 BY MR. TIGAR: 16 Q. Mr. Tobin, what do you do for a living? 17 A. I'm a special agent with the Federal Bureau of 18 Investigation. 19 Q. How long have you been a special agent of the FBI? 20 A. Approximately 26 1/2 years. 21 Q. Showing you now, sir, what has been marked for 22 identification but is not in evidence as Government's 23 Exhibit -- it's marked as Government's Exhibit 151C. Do you 24 remember having seen that before? 25 A. May I open it? 13698 William Tobin - Direct 1 Q. Yes, sir. 2 A. Yes, I did. 3 Q. When did you first see it? 4 A. On or about June 2, 1995. 5 Q. Now, showing you now, sir, what has been received in 6 evidence as Government's 151A, was 151C inside of 151A when you 7 received it? 8 A. It was, yes. 9 Q. On June -- about June 2, 1995? 10 A. Yes, sir. 11 MR. TIGAR: Okay. With the Government's consent, we 12 would offer 151C under the Government's exhibit number. 13 MR. MACKEY: No objection. 14 THE COURT: All right. Received. 15 BY MR. TIGAR: 16 Q. I'm going to show you now, sir, what has not been received 17 but has been marked for identification as D1877, a photograph. 18 Does that appear to you to be a photograph of that Makita drill 19 box and the little bit box, the same one I just showed you? 20 A. As much as I can see of it, it does appear to have some of 21 the same contents. 22 MR. TIGAR: We offer D1877, your Honor. 23 MR. MACKEY: No objection. 24 THE COURT: Received. 25 BY MR. TIGAR: 13699 William Tobin - Direct 1 Q. Sir, I recognize you did not take this photograph. 2 Correct? 3 A. No. 4 Q. The date on here is April 29, 1995. Is that right, sir? 5 A. Yes. 6 Q. When you received -- you're -- in June of 1995, you were 7 employed in the FBI Laboratory. Correct, sir? 8 A. Yes. 9 Q. And you say that on or about June 2, 1995, you got this 10 Exhibit 151A and C. Correct? 11 A. Yes, sir. 12 Q. Now, at the time you got -- I'm holding things up from it. 13 At the time you got 151A and C, were these -- was this manual 14 in this condition that I'm holding it up here with these 15 markings on it? 16 A. There was a -- there were some similar documents inside, 17 but they were not the focus of my attention. 18 Q. And was there water inside the box when you got it? 19 A. There was, yes. 20 Q. How much water was there? 21 A. I didn't measure the amount. I characterized it in my 22 notes, I believe, as "prevalent." 23 Q. "Water was prevalent." Is that what your observation was 24 at the time? 25 A. Yes. 13700 William Tobin - Direct 1 Q. And in addition to that, sir, was the -- were the contents 2 "moldy and heavily moisture-laden"? 3 A. Yes. 4 Q. Were the steel items inside corroded? 5 A. There was -- there was some corrosion present, yes. 6 Q. My question is did you note at the time "steel items inside 7 corroded"? 8 A. May I refer to my notes? 9 Q. I'll be happy -- do you have your notes with you, sir? 10 A. Yes. 11 Q. Are they Bates' stamped? 12 A. No. 13 Q. Well, let me show you a page, sir, and we can -- 14 A. Yes. 15 Q. So you did make a note at that time: "Steel inside 16 corroded." Is that correct? 17 A. Yes. 18 Q. Now, June 2, 1995: At that time, this material had not yet 19 been sent to Agent Cadigan for his examination; is that 20 correct? 21 A. I'm not aware that it had, no. 22 Q. When you saw the box in this condition, did you inquire of 23 your assistant, Derek Carver, as to what had happened to it? 24 A. Yes, I did. 25 Q. What did you find out had happened to it while it was in 13701 William Tobin - Direct 1 the FBI's custody? 2 A. I was told that there had been an accidental exposure of 3 the items to a substantial amount of water. 4 Q. And where had the item been when it was exposed to a 5 substantial amount of water while it was in the FBI's custody? 6 A. In the custody of the Explosives Unit examiner. 7 Q. And did you find out what it was that had -- where it was 8 exactly within the Explosive Unit that all this water had 9 happened to it? 10 A. No. 11 Q. Did you understand how the water had gotten into the box? 12 A. Not specifically. All I was told is that there was some 13 accident or plumbing problem that occurred in the vicinity. 14 Q. And in the box when you received it, was there a quantity 15 of standing water? 16 A. I believe there was some minimal standing water in the box, 17 yes. 18 Q. Now, you've completed -- there came a time when you 19 completed your examinations; correct, sir? 20 A. Some of the exams, yes. 21 Q. Yes. And then you sent -- when you were done with it -- 22 when were you finished with the box? 23 A. On or about July 11 of 1995. 24 Q. And did you then send it back to the Explosives Unit? 25 A. I did, yes. 13702 William Tobin - Direct 1 MR. TIGAR: No further questions. 2 CROSS-EXAMINATION 3 BY MR. MACKEY: 4 Q. Mr. Tobin, very briefly, the reference you made in your 5 note about steel items being corroded: Did you intend to 6 represent that every steel item inside this blue box bore some 7 evidence of rust or corrosion? 8 A. No. Not only did every steel item not exhibit corrosion 9 but not all surfaces of the items that were corroded were in 10 fact corroded. 11 Q. In your examination, you received Government's Exhibit 12 151A, this large blue box with the prominent label "Makita"; 13 correct? 14 A. Yes, sir. 15 Q. You opened it up; correct? 16 A. Yes. 17 Q. And you found inside yet another case, a yellow case marked 18 Government's Exhibit 151C; correct? 19 A. Yes, sir. 20 Q. You opened that up; correct? 21 A. Yes. 22 Q. And inside, did you find two quarter-inch drill bits? 23 A. I did, yes. 24 Q. Did you notice on the tip, on the very top, the very tip of 25 those two quarter-inch drill bits any corrosion? 13703 William Tobin - Cross 1 A. There was very little -- very little to no corrosion on the 2 surface -- on those surfaces. 3 Q. On those two quarter-inch drill bits? 4 A. That's correct. On the tips. 5 Q. Excuse me? 6 A. On the tips. 7 Q. Yes. I understand. 8 MR. MACKEY: Thank you, your Honor. That's all I 9 have. 10 REDIRECT EXAMINATION 11 BY MR. TIGAR: 12 Q. Sir, you were interested in the corrosion issue enough to 13 take a picture and make a note. Correct? 14 A. Well, I routinely take as-received-condition photographs, 15 so that did not drive my photo documentation. 16 Q. So it's part of your routine to take as-received-condition 17 photos. Is that your testimony? 18 A. Yes, sir. 19 Q. How many as-received-condition photos did you take on this 20 occasion? 21 A. I don't recall offhand. 22 Q. Let me just show you to refresh your recollection a portion 23 of your notes. Would you look through there and see if that's 24 all the as-received-condition photos that you took? 25 A. No, they are not -- they would not comprise all of the 13704 William Tobin - Redirect 1 photographs in their entirety. 2 Q. Are those all the photographs that are in -- that you 3 stapled into your notes and put a notation beside? 4 A. May I compare them to my own -- 5 Q. Of course, sir. 6 A. -- records? 7 Yes, these are the photographs that I attached to my 8 notes under that particular laboratory number. 9 Q. Now, I notice that you brought some notes with you today, 10 sir. Is that anything other than the notes that to your 11 knowledge have already been furnished to us -- 12 A. The only -- 13 Q. -- the notes that you brought with you to the witness 14 stand? 15 A. The only difference is my notes have an additional page of 16 the laboratory worksheet on the top and metallurgy -- 17 MR. TIGAR: I'm sorry. May I approach and look, your 18 Honor? 19 THE COURT: Yes, you may look. 20 BY MR. TIGAR: 21 Q. May I just see the notes that you brought, sir? Thank you. 22 The notes that I'm now looking at plus what you have 23 in your envelope: It's your understanding those have all been 24 turned over to the defense. Correct, sir? 25 A. Yes. 13705 William Tobin - Redirect 1 Q. Now, coming back to your photograph, then, it is your 2 recollection, sir, that you took 16 as-received photographs. 3 Is that correct, sir? 4 A. No. 5 Q. How many did you take? 6 A. I don't recall again. 7 Q. How many did you mount in your notes? 8 A. How many are there? I didn't count them. 9 Q. I'm sorry. I have 16, sir. 10 A. Then there would be 16 attached to my notes. 11 Q. All right. And attached to your notes, is any of those 16 12 photographs an as-received photograph of the tip of a 13 quarter-inch drill bit? 14 A. Not specifically, no. 15 Q. Well, will you look, sir? Is there one that is a 16 photograph of the tip of a one-quarter-inch drill bit generally 17 or specifically? 18 A. Generally, yes. 19 Q. Which one is the generally one, sir? 20 A. That would be Photograph No. 12 on page 6. 21 Q. May I see the color version of that? 22 And the photograph here: Is that the one that shows 23 these markings here? Is that one of the drill bits, the one in 24 the middle? 25 A. Yes. 13706 William Tobin - Redirect 1 Q. And would it be fair to say that those markings are 2 consistent with significant corrosion on the shaft of that 3 drill? 4 A. Yes, sir, there are. 5 Q. That is a side view of the drill, or is it an end-on view 6 of the tip? 7 A. It's a side view of the flutes on the drill; however, 8 because of the angle on the rake face -- on the face of the 9 bit, one can see some surface. But in answer to your question, 10 it's intended to be a side view. 11 MR. TIGAR: No further questions. 12 MR. MACKEY: Just a couple. 13 RECROSS-EXAMINATION 14 BY MR. MACKEY: 15 Q. Photograph No. 12 that you've identified shows a side view 16 of three different drill bits; correct? 17 A. Yes. 18 Q. The one Mr. Tigar asked you about was the one in the 19 center; correct? 20 A. Yes, sir. 21 Q. Your testimony that I'd like to elicit is based on your 22 observation back in June of 1995. Did you notice on the tip of 23 any of those three drill bits corrosion? 24 A. Yes. There was minimal corrosion on the center one and 25 almost no corrosion on the other two but very minimal on the 13707 William Tobin - Recross 1 face -- on the tip of the center one. 2 Q. There are three drill bits there. Two of them on the outer 3 sides of that same photograph show, do they not, no corrosion? 4 A. That's correct. 5 Q. The only one that has any evidence is the one in the 6 middle? 7 A. Yes, sir. 8 Q. Do you know from your firsthand knowledge, Mr. Tobin, 9 which, if any, of these three were later examined by 10 Mr. Cadigan? 11 A. No. 12 MR. MACKEY: Nothing else. 13 MR. TIGAR: No further questions, your Honor. 14 THE COURT: All right. The witness now excused? 15 MR. TIGAR: Yes, your Honor. 16 MR. MACKEY: Yes. 17 THE COURT: Is that agreeable? 18 You may step down. You're excused. 19 Yes, please. 20 MR. TIGAR: Joan Millar. 21 THE COURT: All right. 22 THE COURTROOM DEPUTY: Would you raise your right 23 hand, please. 24 (Joan Millar affirmed.) 25 THE COURTROOM DEPUTY: Would you have a seat, please. 13708 1 Would you state your full name for the record and 2 spell your last name. 3 THE WITNESS: Joan Irene Millar, M-I-L-L-A-R. 4 DIRECT EXAMINATION 5 BY MR. NEUREITER: 6 Q. How old are you, ma'am? 7 A. 56. 8 Q. Where are you