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440 1 in the United States District Court for The 440 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 TIMOTHY JAMES McVEIGH and TERRY LYNN NICHOLS, 7 Defendants. 8 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ 9 REPORTER'S TRANSCRIPT 10 (HEARING ON MOTIONS TO SUPPRESS EYEWITNESS IDENTIFICATION) VOLUME V 11 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ 12 13 Proceedings before the HONORABLE RICHARD P. MATSCH, 14 Judge, United States District Court for the District of 15 Colorado, reconvened at 1:30 p.m., on the 19th day of February, 16 1977, in Courtroom C-204, United States Courthouse, Denver, 17 Colorado. 18 19 20 21 22 23 Produced via Computer by Paul Zuckerman, 1929 Stout Street, 25 P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285 441 1 APPEARANCES 2 SEAN CONNELLY, LARRY A. MACKEY, BETH WILKINSON, SCOTT 3 MENDELOFF, JAMIE ORENSTEIN and AITAN D. GOELMAN, Special 4 Attorneys to the U.S. Attorney General, 1961 Stout Street, 5 Suite 1200, Denver, Colorado, 80294, appearing for the 6 plaintiff. 8 Jones, Wyatt & Roberts, 114 East Broadway, Suite 100, Post 9 Office Box 472, Enid, Oklahoma, 73702-0472; JERALYN MERRITT, 10 303 East 17th Avenue, Suite 400, Denver, Colorado, 80203; 11 CHERYL A. RAMSEY, Attorney at Law, Szlichta and Ramsey, 8 Main 12 Place, Post Office Box 1206, Stillwater, Oklahoma, 74076; and 13 CHRISTOPHER L. TRITICO, Attorney at Law, Essmyer, Tritico & 15 Defendant McVeigh. 16 MICHAEL E. TIGAR, RONALD G. WOODS, ADAM THURSCHWELL, 17 REID NEUREITER, and JANE TIGAR, Attorneys at Law, 1120 Lincoln 18 Street, Suite 1308, Denver, Colorado, 80203, appearing for 19 Defendant Nichols. 20 * * * * * 21 22 23 24 25 442 1 PROCEEDINGS 2 (In open court at 1:30 p.m.) 3 THE COURT: Be seated, please. Bring in the witness. 4 (Leslie Earl, III, affirmed.) 5 COURTROOM DEPUTY: Would you have a seat, please. 6 Would you state your full name for the record and spell your 7 last name. 8 A. It is Leslie R. Earl, E-A-R-L, the Third. 9 THE COURT: Move the microphone a little, please. 10 Proceed, Ms. Merritt. 11 DIRECT EXAMINATION 12 BY MS. MERRITT: 13 Q. Yes. Agent Earl, how are you employed? 14 A. I'm a special agent with the Federal Bureau of 15 Investigation. 16 Q. And how long have you been so employed? 17 A. Approximately seven and a half years. 18 Q. And when was your first involvement with the investigation 19 of the Oklahoma City bombing? 20 A. I believe it was on April 21, 1995. 21 Q. And where are you stationed from? 22 A. Wichita, Kansas. 23 Q. And what was your first assignment on April 21? 24 A. My first assignment was to go to the Marion County 25 sheriff's office in Kansas. 443 Leslie Earl, III - Direct 1 Q. Okay. Tell me what your first involvement was with an 2 individual named Tim Donahue. 3 A. I met Mr. Donahue at his father's residence in rural Marion 4 County, Kansas. 5 Q. Can you tell me what date and what time you met 6 Mr. Donahue? 7 A. That was April 21, 1995, sometime in the afternoon. 8 Q. Okay. Was this prior to the -- what we refer to as the 10 A. I have no knowledge of when that occurred. 11 Q. Okay. Now, what did you discuss with Mr. Donahue on 12 April 21? 13 A. His knowledge of Terry Nichols. 14 Q. And did Mr. Nichols -- did Mr. Donahue describe to you 15 another individual besides Mr. Nichols? 17 Q. And who was the individual that he described? How did he 18 characterize him? 19 A. As a friend or associate of Mr. Nichols. 20 Q. And what did he tell you about that individual? 21 A. He provided a physical description of him. 22 Q. And can you tell me, did he tell you about how old he 24 A. Approximately mid-thirties. Approximately mid -- 35 years 25 of age. Leslie Earl, III - Direct 1 Q. Did he give you an approximate height for him? 2 A. Yes, he did. 3 Q. What was the height he gave you? 4 A. I can't recall without referring to my report. 5 Q. Would you like to see a copy of your report? 6 A. Sure. 7 THE COURT: Do you have one we can hand to him? 8 MS. MERRITT: Yes, your Honor. 9 THE COURT: All right. Get it. 10 BY MS. MERRITT: 11 Q. Does that appear to be a copy of your report? 12 A. Yes, it does. 13 Q. Okay. Now, can you tell me, after reviewing your report, 14 what height estimation Mr. Donahue gave you concerning the 15 friend of Terry Nichols. 16 A. 5 feet 11 inches tall. 17 Q. Did he describe his build? 18 A. Yes, he did. 19 Q. What kind of build did he have? 20 A. He described it as thin. 21 Q. How did he describe his hair? 22 A. He described it as dark and worn about mid-ear length. 23 Q. Did he describe any facial hair? 24 A. Yes. He advised that the friend had a scraggly brown 25 beard. 445 Leslie Earl, III - Direct 1 Q. Did he say anything about whether or not this individual 2 wore eyeglasses? 3 A. Yes. He indicated the individual did not wear eyeglasses. 4 Q. Did he comment upon the tidiness of the individual? 5 A. Yes. He described him as sloppy in appearance. 6 Q. What else -- did you discuss anything else about this 7 individual with Mr. Donahue on April 21? 8 A. Yes. 9 Q. What did you discuss? 10 A. Discussed his vehicle. 11 Q. And we're talking now to the friend of Terry Nichols? 12 A. Correct. 13 Q. Okay. Let me take you back. What was the first time that 14 Mr. Donahue told you he had seen this friend of Terry Nichols? 15 A. You're asking me when did -- 16 Q. When did Mr. Donahue -- 17 A. -- first see the friend? 18 Q. -- first see -- did he tell you when he first saw this 19 friend? 20 A. He did not provide a date to me. 21 Q. Okay. Did he tell you on how many occasions he encountered 22 the friend of Terry Nichols? 23 A. He indicated twice. 24 Q. Okay. Now, did he give you any approximate time frame for 446 Leslie Earl, III - Direct 2 Q. Okay. What did he tell you about the individual that he 3 saw on this first encounter? How did he describe him? 4 A. You're referring to the friend again? 5 Q. Yes. 6 A. He described him with the description I just gave you. 7 Q. Okay. That was from the first encounter? 9 Q. Are you saying that he gave you the same description of the 10 individual for both encounters? 11 A. He didn't differentiate between the encounters. He gave 12 one description of the friend. 13 Q. Okay. Now, do you know whether or not Mr. Donahue, at this 14 point in time that he's speaking with you, had seen any media 15 depictions of Mr. McVeigh? 16 A. Not that I know of. 17 Q. Did you interview Mr. Donahue on any other occasion? 18 A. Not that I can recall. 19 Q. Did -- at the time you spoke with Mr. Donahue, did he know 20 the identity of the friend of Terry Nichols that he described 21 to you? 22 A. No. 23 MS. MERRITT: May I have a moment, your Honor? 24 THE COURT: Yes. 25 MS. MERRITT: No further questions. 447 Leslie Earl, III - Direct 1 THE COURT: Mr. Mackey. 2 MR. MACKEY: Thank you, your Honor. 3 CROSS-EXAMINATION 4 BY MR. MACKEY: 5 Q. Agent Earl, tell us again approximately what time of day it 6 was that you met Tim Donahue near Marion, Kansas. 7 A. It was afternoon. 8 Q. All right. Was it early afternoon or late, or can you be 9 more specific? 10 A. I can't be more specific than that. 11 Q. Can you be specific in answer to this question: Had you 12 heard the name Tim McVeigh before you went to see Tim Donahue? 13 A. No, I had not. 14 Q. Did you have any descriptive information about an 15 individual known as Tim McVeigh when you went to see Tim 16 Donahue -- 17 A. No, I didn't. 18 Q. -- on April 21? 19 A. No. 20 Q. Did you, in the course of your interview of Mr. Donahue, 21 suggest to him in any form or fashion the descriptive 22 information that he gave you? 23 A. No. 24 MR. MACKEY: I have nothing else. 25 THE COURT: May the witness be excused? 448 Leslie Earl, III - Cross 1 MS. MERRITT: Yes, your Honor. 2 THE COURT: All right. You may step down. You're 3 excused. Next, please. 4 MS. MERRITT: Your Honor, we would call Christopher 5 Budke. 6 (Christopher Budke affirmed.) 7 COURTROOM DEPUTY: Have a seat, please. 8 THE WITNESS: Thank you. 9 COURTROOM DEPUTY: State your name -- full name for 10 the record and spell your last name. 11 THE WITNESS: My name is Christopher, middle initial 12 is A., last name is Budke, B-U-D-K-E. 13 COURTROOM DEPUTY: Thank you. 14 DIRECT EXAMINATION 15 BY MS. MERRITT: 16 Q. Agent Budke, how are you employed? 17 A.
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