United States v. McVeigh

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 5 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 98-1247
TIMOTHY JAMES McVEIGH,

Defendant-Appellant,

and

TERRY LYNN NICHOLS,

Intervenor.

STATE OF OKLAHOMA,

Amicus Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 96-CR-68-M)

Submitted on the Briefs: *

Pursuant to the court’s order dated July 17, 1998, this panel has determined
*

unanimously that oral argument is not necessary in this matter. See Fed. R. App. P. 34(f);

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Sean Connelly, Special Attorney to the United States Attorney General, Denver,
Colorado (Patrick M. Ryan, United States Attorney, Oklahoma City, Oklahoma,
Larry A. Mackey, Special Attorney to the United States Attorney General,
Denver, Colorado, with him on the briefs), for Plaintiff-Appellee.

Robert Nigh, Jr., Tulsa, Oklahoma, and Richard Burr, Houston, Texas, for
Defendant-Appellant.

Susan L. Foreman, Michael E. Tigar, and Adam Thurschwell, Boulder, Colorado,
(Jane B. Tigar, Boulder, Colorado, with them on the briefs), for Intervenor Terry
Lynn Nichols.

Robert H. Macy, District Attorney, and Patrick J. Morgan, First Assistant District
Attorney, Oklahoma City, Oklahoma, for Amicus Curiae State of Oklahoma.

Before EBEL, KELLY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Defendant Timothy McVeigh appeals from the district court’s June 24,

1998, order rescinding certain restrictions which prevented federal agents from

cooperating with state officials investigating the Oklahoma City bombing 1
. With

intervenor Terry Lynn Nichols, Mr. McVeigh maintains the district court erred

when it granted the government’s motion to rescind a previously imposed

prohibition on federal cooperation with the Oklahoma County District Attorney

10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
1
On August 17, 1998, we entered an order allowing Terry Lynn Nichols to
intervene in this appeal. In companion appeal number 98-1246, Mr. Nichols challenges
entry of the same order which is at issue in this matter.

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and especially empaneled state grand jury in Oklahoma. We exercise jurisdiction

pursuant to 28 U.S.C. §1292(a)(1) and affirm on the merits.

Background

On August 10, 1995, the federal grand jury in the Western District of

Oklahoma indicted Timothy McVeigh and Terry Lynn Nichols on multiple

charges stemming from the bombing of the Alfred P. Murrah office building in

Oklahoma City on April 19, 1995. See United States v. McVeigh , No. 97-1287,

1998 WL 568351, at *1-2 (10th Cir. Sept. 8, 1998)(providing factual

background). On August 23, 1995, Judge Wayne Alley, then the presiding judge

of the district court proceedings, entered an “Agreed Order” which addressed

several pretrial matters. That order stated, in pertinent part:

Discovery materials may be disclosed only to the parties, their
counsel and agents, except that such materials may be disclosed as
necessary: (a) during court proceedings, including trial, hearings, or
legal filings in this case; or (b) to potential witnesses, provided that
such witnesses are made aware of and agree to honor the terms of
this protective order.

ROA Vol. II, doc. 228, at 4. Following the recusal of Judge Alley, and

subsequent transfer of the proceedings to Chief Judge Matsch in Colorado,

counsel for Mr. Nichols filed a motion seeking an in camera inquiry to determine

whether individuals with access to discovery materials were violating the Agreed

Order through inappropriate dissemination of information to the press. The

government joined in that motion.

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 On June 13, 1996, the district court entered an order entitled “Memorandum

Opinion and Order Regarding Extrajudicial Statements by Attorneys and Support

Personnel.” That order covered a broad scope of issues. Its intent, however, was

to “articulate the particular standards to be followed in this litigation . . . for

future guidance in all forms of extrajudicial statements about [the] litigation.”

United States v. McVeigh , 931 F. Supp. 756, 760 (D. Colo. 1996). The order

provided:

A. None of the lawyers in this case or any persons associated
with them, including any persons with supervisory authority over
them, will release or authorize the release of information or opinion
about this criminal proceeding which a reasonable person would
expect to be disseminated by any means of public communication, if
there is a reasonable likelihood that such disclosure will interfere
with a fair trial of the pending charges or otherwise prejudice the due
administration of justice.
B. This duty to refrain from prejudicial disclosures requires all
counsel to take reasonable precautions to prevent all persons who
have been or are now participants in or associated with the
investigations conducted by the prosecution and defense from making
any statements or releasing any documents that are not in the public
record and that are reasonably expected to be publicly disseminated
which would be likely to materially prejudice the fairness of this
criminal proceeding.

Id. In addition, the district court went on to prohibit any extrajudicial statements

concerning “[t]he existence or contents of any statements given by the defendants

to any law enforcement personnel” and “[t]he performance of any examinations or

tests or any defendant’s refusal or failure to submit to any examination, or test.”

Id.

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 Timothy McVeigh’s trial concluded in June of 1997 with a guilty verdict on

all counts. In September of 1997, prior to Mr. Nichols’ trial, the government

filed a motion to clarify whether the orders restricting extrajudicial statements

likewise prohibited the prosecution’s cooperation with the Oklahoma grand jury

investigating the bombing. In a hearing held on September 8, 1997, the district

court indicated the government could not disseminate materials to Oklahoma

authorities. The court stated “I don’t want to be interpreted as trying to obstruct a

lawful grand jury in Oklahoma. On the other hand, my responsibility is to this

trial and this case . . . .And [the Oklahoma state grand jury is] just going to have

to wait . . . until the conclusion of these proceedings.” ROA Vol. I, Tr. of 9/8/97,

at 21-22.

Approximately three months later, after completion of Mr. Nichols’ trial,

the district court received a letter from the state trial judge conducting the grand

jury proceedings in Oklahoma. In that letter, which was forwarded to all the

parties, the judge made specific inquiry whether the two orders at issue here

prevented federal assistance in the state proceedings. Using the letter as a

catalyst, the government filed a formal motion requesting removal of any

restrictions which would prohibit cooperation with state authorities. On June 24,

1998, the district court entered an order granting the government’s request

“insofar as this court’s previous orders precluded the federal government’s

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cooperation with the Oklahoma County District Attorney and the especially

empaneled state grand jury, except that the government shall not disclose any

documents, papers, objects and information provided by the defendants through

reciprocal discovery.” ROA Vol. II, doc. 6149, at 3. On July 1, 1998, Mr.

McVeigh filed his notice of appeal. We granted a stay of the order that same

day. 2

Discussion

As a threshold matter, we must consider whether we have jurisdiction to

consider this appeal. See United States v. Dickstein , 971 F.2d 446, 447 (10th Cir.

1992). Generally, we are limited to considering final orders which are

accompanied by the entry of judgment. See 28 U.S.C. §1291. Here, however, we

are in a curious procedural posture. The trial court’s June 24 order was issued

after entry of judgment in Mr. McVeigh’s case. Indeed, his direct criminal appeal

was at issue at the time the order was filed. Nevertheless, the order was

interlocutory in nature. As a result, we must consider whether it is immediately

appealable under any of the recognized exceptions to the final judgment rule.

Because we conclude the order had the effect of modifying or dissolving a

Mr. McVeigh originally filed an emergency motion for stay of the district court’s
2

order on June 25, 1998, in appeal number 97-1287. The court granted that motion. On
June 30, the court dissolved that stay in light of Mr. McVeigh’s failure to file a notice of
appeal. This proceeding followed.

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previously imposed injunction, we have jurisdiction under 28 U.S.C. §1292(a)(1).

Section 1292(a)(1) provides that courts of appeal shall have jurisdiction to

hear matters arising from orders “granting, continuing, modifying, refusing, or

dissolving injunctions, or refusing to dissolve or modify injunctions.” 28 U.S.C.

§1292(a)(1). If the order in question is clearly injunctive in nature, the statute

provides a vehicle for immediate appeal without further inquiry. See MAI Basic

Four, Inc. v. Basis, Inc. , 962 F.2d 978, 981 (10th Cir. 1992). Where, as here,

however, the order in question merely has the “practical effect” of an injunction,

we apply a three part test to determine applicability of the statute. See id. at 982.

To invoke §1292(a)(1) jurisdiction here, the district court’s order 1) must

have the practical effect of granting or denying injunctive relief, 2) must be one

which will result in serious or irreparable consequences if executed, and 3) must

be a directive which can be challenged effectively only through immediate appeal.

See Tri-State Generation & Transmission Ass’n v. Shoshone River Power, Inc. ,

874 F.2d 1346, 1351 (10th Cir. 1989); United States v. Colorado , 937 F.2d 505,

507-08 (10th Cir. 1991) . Each prong must be satisfied in order for jurisdiction to

attach. State of Utah ex rel Utah State Dep’t of Health v. Kennecott Corp ., 14

F.3d 1489, 1496-97 (10th Cir. 1994) (rejecting jurisdiction where appellant did

not meet all three prongs).

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 The government maintains that because the underlying orders merely

controlled the course of discovery they cannot be injunctive in nature. Discovery

orders are generally not appropriate for interlocutory review. See FTC v. Alaska

Land Leasing, Inc. , 778 F.2d 577, 578 (10th Cir. 1985) . At the core of the June

16, 1996, order, however, was a prohibition on exchanging information. The

order did not, as the government maintains, merely “regulate materials exchanged

between the parties incident to the litigation.” United States v. Pappas , 94 F.3d

795, 798 (2nd Cir. 1996). Rather, it prohibited federal agents from cooperating

with state authorities in an ongoing criminal investigation. The trial court’s June

24 order constituted a dissolution of the earlier prohibition. As such, it was

injunctive in effect. See United Nuclear Corp. v. Cranford Ins. Co. , 905 F.2d

1424, 1426 (10th Cir. 1990)(finding jurisdiction where order at issue modified a

prior protective order following conclusion of the trial court proceedings).

We likewise conclude appellants have satisfied the “serious consequences”

prong of the jurisdictional test. Mr. McVeigh and Mr. Nichols maintain there is

great risk in releasing information to the state authorities. The risk, they argue, is

the likely adverse publicity, via dissemination to the public, which the release to

the state authorities will bring. The argument follows that this adverse publicity,

in turn, will seriously prejudice the defendants and cripple any ability to ensure a

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fair trial if this court grants that relief. 3
For purposes of analyzing the

jurisdictional question, these potential consequences are serious enough to

warrant immediate review.

Finally, we turn to the third prong of the test. The precise inquiry here is

not whether any review can be had, but rather, whether the order at issue can be

challenged effectively only through immediate review. See Carson v. American

Brands , 450 U.S. 79, 84-90 (1981) (discussing appropriateness of immediate

review and parties’ inability to effectively challenge order under consideration) .

If, as Mr. McVeigh suggests, the harm of dissemination cannot be remedied once

the government has turned over all of the materials and potential witnesses, there

can be no effective challenge in a subsequent proceeding. There is no question,

given the procedural posture of this matter, that the more efficient and effective

method of review rests in this court, at this time.

Moreover, we acknowledge this court’s historical emphasis on avoiding

piecemeal litigation. See Boughton v. Cotter Corporation , 10 F.3d 746, 748 (10th

Cir. 1993)(noting “the burden on appellate courts imposed by fragmentary and

piecemeal review of the district court’s myriad rulings in the course of a typical

case”). That goal is fostered if we, as an appellate court, are able to review all of

The opinion in appeal number 97-1287, United States v. McVeigh, issued on
3

September 8, 1998. This matter is not moot, however, because Mr. McVeigh has a
petition for rehearing pending in that case.

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the district court’s rulings as a whole, rather than on a fragmented basis. The

most efficient way to challenge the order at issue here is through immediate

review. Doing so promotes judicial economy. Consequently, we hold this order

is appropriate for review pursuant to §1292(a)(1). We now turn to the merits of

this appeal.

We review the trial court’s decision to modify this injunction under an

abuse of discretion standard. See Prows v. Federal Bureau of Prisons , 981 F.2d

466, 468 (10th Cir. 1992). Applying that standard, we will not disturb the district

court’s decision unless “‘ we have a definite and firm conviction’” that the order

was entered in error or that the trial court “‘exceeded the bounds of permissible

choice’” in the circumstances presented. United States v. Talamante , 981 F.2d

1153, 1155 (10th Cir. 1992) (quoting United States v. Ortiz , 804 F.2d 1161, 1164

n. 2 (10th Cir. 1986)) . We have previously defined abuse of discretion as “an

arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” United

States v. Hernandez-Herrera , 952 F.2d 342, 343 (10th Cir. 1991) (quotations

omitted). It is with this definition in mind that we review the district court’s June

24 order.

The district court’s decision to rescind the previous prohibition on releasing

materials to state authorities came after both Mr. McVeigh and Mr. Nichols’ trials

were completed. Judgment has entered and both matters are on appeal to this

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court. In maintaining the prohibition, the trial court ensured the fairness of the

federal trials through to their conclusion. The court considered removing the

prohibition only after considering the procedural posture of the case and the

parties’ briefs on the matter. The record reveals a very careful and deliberate

examination of the issues involved.

Nevertheless, defendants maintain the potential for harm rests in the future

inability to recapture this information once it is released. This argument

necessarily hinges on a speculative, rather than concrete, potential for harm. Mr.

McVeigh and Mr. Nichols maintain it is inevitable that leaks to the press will

occur if there is federal cooperation with state authorities. They argue that this

dissemination will extinguish any possibility of a fair trial if this court grants

relief in either direct appeal. Mr. Nichols also maintains there is a risk that

allowing federal agents to cooperate with state authorities will impugn the secrecy

of the federal grand jury. Fed. R. Crim. P. 6(e)(2)(noting obligation of secrecy

involved in grand jury proceedings) . We find these arguments unpersuasive.

The Rules of Criminal Procedure contemplate cooperation between state

and federal authorities. Rule 6(e)(3)(C)(iv) provides that “disclosure otherwise

prohibited by [the grand jury rules] may . . . be made when permitted by a court at

the request of an attorney for the government, upon a showing that such matters

may disclose a violation of state criminal law, to an appropriate official of a state

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or subdivision of a state for the purpose of enforcing such law.” Fed. R. Crim. P.

6(e)(3)(C)(iv). Thus, not only did the district court make a careful decision, it

was one which comports with the federal rules. Moreover, the June 24 order

rightly evidences respect for the important notion of state sovereignty. See

Younger v. Harris , 401 U.S. 37, 43 (1971)(“Since the beginning of this country’s

history Congress has . . . manifested a desire to permit state courts to try state

cases free from interference by federal courts.”) 4
. At this procedural juncture, the

federal courts should not be used as a vehicle to protect these defendants from

lawful state authorities. Reversal of the district court’s order would have that

exact result.

In the event that either of these defendants receives a new trial, there are

safeguards available to ensure the fairness of the federal proceedings. The trial

court has many remedies available to protect the integrity of the jury process.

These very defendants have already been privy to many of those options. The

order of June 24 was limited in scope and did not apply to reciprocal discovery

materials. Given that limitation, and the status of these proceedings, we hold the

4
Defendants’ assumption that the investigation materials will be released to the
public is particularly speculative. All grand jury proceedings in Oklahoma are conducted
in secrecy. Okla. Stat. tit. 22, §341. Moreover, both grand jurors and district attorneys
are subject to criminal charges in the event of improper disclosure. Id. tit. 21, §583.

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district court did not abuse its discretion in lifting the previous prohibition on

cooperation with the state authorities.

The order of the district court is AFFIRMED. The stay entered on July 1,

1998, will dissolve on the date the mandate issues in this appeal. That mandate

shall issue in the usual course pursuant to Federal Rule of Appellate Procedure

41(a).

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