PUBLISH
UNITED STATES COURT OF APPEALS
Filed 2/28/96
FOR THE TENTH CIRCUIT
IN RE: )
)
MATERIAL WITNESS WARRANT )
TERRY LYNN NICHOLS )
UNITED STATES OF AMERICA, )
)
Plaintiff - Appellee, )
)
v. ) No. 95-3130
)
TERRY LYNN NICHOLS, )
)
Defendant - Appellant. )
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D. C. No. 95-6036-M)
Michael Tigar, Austin, Texas, appearing for the appellant.
David J. Phillips, Federal Public Defender for the District of Kansas, Kansas City,
Kansas, and Steven K. Gradert, Assistant Federal Public Defender for the District of
Kansas, Wichita, Kansas, on the brief for the appellant.
Sean Connelly, Special Assistant United States Attorney, Office of the United States
Attorney, Oklahoma City, Oklahoma (Patrick M. Ryan, United States Attorney, and
Joseph H. Hartzler, Special Assistant United States Attorney, Office of the United States
Attorney, Oklahoma City, Oklahoma, with him on the brief) for the appellee.
Before Tacha, Coffin,* and Lucero.
Tacha, Circuit Judge.
On April 21, 1995, the U.S. District Court for the Western District of Oklahoma
issued a Warrant for Arrest of Witness, pursuant to 18 U.S.C. § 3144, naming Terry Lynn
Nichols and requiring him to appear before a federal grand jury in Oklahoma City. After
turning himself in to the Herrington, Kansas, police department, Nichols appeared before
the U.S. District Court for the District of Kansas and moved to quash the arrest warrant.
On April 26, 1995, the court denied his motion. Nichols was subsequently detained under
a different warrant, one based upon a criminal complaint. Nichols now appeals the order
of the district court denying his motion to quash the first warrant, arguing that (1) the
issue is not moot, (2) the district court’s denial is an appealable order, and (3) the factual
allegations supporting the warrant were insufficient to show probable cause that Nichols’s
presence could not be secured later by subpoena. We conclude that the issue is now
moot. Consequently, we do not reach the appealability of the order or the merits of
Nichols’s claim.
I. Background
On April 19, 1995, at approximately 9:00 A.M., a bomb destroyed the Alfred P.
Honorable Frank M. Coffin, Senior Circuit Judge, United States Court of Appeals for the
First Circuit, sitting by designation.
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Murrah Federal Building in Oklahoma City, Oklahoma, killing 169 people, injuring many
others, and causing extensive property damage to other buildings in the vicinity. About
80 minutes later, Oklahoma authorities arrested Timothy James McVeigh on traffic and
weapons charges. Soon thereafter, federal authorities arrested McVeigh in connection
with the bombing. On April 21, 1995, the U.S. District Court for the Western District of
Oklahoma issued a Warrant for Arrest of Witness, in accordance with 18 U.S.C. § 3144,
directing that Terry Lynn Nichols be brought before a Federal Grand Jury at Oklahoma
City to testify as a material witness regarding United States v. McVeigh, Case No. M-95-
97-H. The warrant stated on its face that “the Witness’s testimony is material in a
criminal proceeding, and he has attempted to leave the jurisdiction of the United States,
and it may become impracticable to secure his presence by subpoena.”
The court issued the warrant upon the affidavit of FBI special agent Henry C.
Gibbons. However, Gibbons’s affidavit did not establish that Nichols had ever attempted
to escape the jurisdiction of the United States. It merely asserted the following with
respect to the probability of Nichols’s flight: “Terry Nichols [sic] renunciation of his
U.S. citizenship and his association with Tim McVeigh, a person involved in such a
heinous crime, indicates that his testimony cannot be secured through the issuance of a
subpoena.”
In fact, Nichols had voluntarily appeared at the police department in Herrington,
Kansas, the town wherein he resided, on April 21, 1995, after hearing in news broadcasts
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that he was being sought for questioning. On April 22, after being interviewed by federal
agents, Nichols appeared before the U.S. District Court for the District of Kansas and was
served with the material witness arrest warrant issued by the U.S. District Court for the
Western District of Oklahoma. On April 26, still in Kansas, Nichols entered a motion to
quash the arrest warrant with the U.S. District Court for the District of Kansas. Later the
same day, the court denied Nichols’s motion. On May 3, Nichols filed a notice of appeal
of the district court’s order denying his motion to quash the warrant.
On May 9, the United States filed a complaint in the U.S. District Court for the
Western District of Oklahoma charging Nichols with the malicious damaging and
destruction by means of fire or an explosive a building, vehicle, and other personal and
real property in whole and in part owned, possessed, or used by the United States, or
departments and agencies thereof, in violation of 18 U.S.C. §§ 844(f) and 2. On the same
day, the U.S. District Court for the Western District of Oklahoma issued an arrest warrant
for Nichols pursuant to the complaint. On May 10, the U.S. District Court for the District
of Kansas ordered Nichols committed to the Western District of Oklahoma, with specific
reference to the criminal complaint and not to the material witness warrant. Finally, on
June 23, the U.S. District Court for the Western District of Oklahoma ordered the
dismissal of the material witness warrant at issue in this appeal. Nichols is currently
awaiting trial for the crimes alleged in the complaint.
II. Mootness
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The dispositive flaw in Nichols’s appeal lies in the inability of this court to provide
adequate relief. Two events that occurred subsequent to the issuance of the challenged
material witness arrest warrant have rendered this appeal moot. First, the United States
filed a new arrest warrant against Nichols based upon a criminal complaint in the U.S.
District Court for the Western District of Oklahoma. Nichols is currently being held to
stand trial on the charges listed in that criminal complaint. Second, on June 23, 1995, the
district court dismissed the material witness warrant, 33 days after it was issued.
“This court will dismiss an appeal as moot, ‘when pending an appeal from the
judgment of a lower court, . . . an event occurs which renders it impossible . . . to grant
[the appellant] any effectual relief whatever . . . .” ARW Exploration Corp. v. Aguirre,
947 F.2d 450, 453 (10th Cir. 1991) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)).
In his appeal, Nichols requests reversal of the decision of the U.S. District Court for the
District of Kansas denying his motion to quash the arrest warrant. Such a holding would
afford Nichols no meaningful relief. The material witness warrant has already been
dismissed, and he is currently being held as a criminal defendant. His present detention
status commenced under a different warrant, one which was based upon a criminal
complaint. Thus, there is a wholly independent basis for Nichols’s present detention.
Furthermore, a finding that the accused was detained under an invalid arrest warrant
would entitle him to neither judicial review of the decision to prosecute nor the voiding of
any subsequent conviction. Gerstein v. Pugh, 420 U.S. 103, 118-119 (1975). For all of
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these reasons, this court cannot give Nichols any meaningful relief; and his appeal must
be regarded as moot. We therefore lack jurisdiction in the matter. Because a decision
regarding the appealability of the district court order is unnecessary for the resolution of
this case, we refrain from consideration of that issue. Nor need we address the merits of
Nichols’s claims. Accordingly, this appeal is DISMISSED.
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