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IN the UNITED STATES DISTRICT COURT for the DISTRICT of COLORADO 2 Criminal Action No

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IN the UNITED STATES DISTRICT COURT for the DISTRICT of COLORADO 2 Criminal Action No 1 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 I 11 ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ 12 13 Proceedings before the HONORABLE RICHARD P. MATSCH, 14 Judge, United States District Court for the District of 15 Colorado, commencing at 9:00 a.m., on the 18th day of February, 16 1977, in Courtroom C-204, United States Courthouse, Denver, 17 Colorado. 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 2 1 APPEARANCES 2 PATRICK M. RYAN, United States Attorney for the 3 District of Oklahoma, 210 West Park Avenue, Suite 400, Oklahoma 4 City, Oklahoma, 73102, appearing for the plaintiff. 5 SEAN CONNELLY, LARRY A. MACKEY, BETH WILKINSON, SCOTT 6 MENDELOFF, JAMIE ORENSTEIN and AITAN D. GOELMAN, Special 7 Attorneys to the U.S. Attorney General, 1961 Stout Street, 8 Suite 1200, Denver, Colorado, 80294, appearing for the 9 plaintiff. 10 STEPHEN JONES and ROBERT NIGH, Attorneys at Law, 11 Jones, Wyatt & Roberts, 114 East Broadway, Suite 100, Post 12 Office Box 472, Enid, Oklahoma, 73702-0472; JERALYN MERRITT, 13 303 East 17th Avenue, Suite 400, Denver, Colorado, 80203; 14 CHERYL A. RAMSEY, Attorney at Law, Szlichta and Ramsey, 8 Main 15 Place, Post Office Box 1206, Stillwater, Oklahoma, 74076; and 16 CHRISTOPHER L. TRITICO, Attorney at Law, Essmyer, Tritico & 17 Clary, 4300 Scotland, Houston, Texas, 77007, appearing for 18 Defendant McVeigh. 19 MICHAEL E. TIGAR, RONALD G. WOODS, ADAM THURSCHWELL, 20 REID NEUREITER, and JANE TIGAR, Attorneys at Law, 1120 Lincoln 21 Street, Suite 1308, Denver, Colorado, 80203, appearing for 22 Defendant Nichols. 23 * * * * * 24 25 3 1 PROCEEDINGS 2 (In open court at 9:00 a.m.) 3 THE COURT: Please be seated. We're convened in 4 96-CR-68, United States against Timothy James McVeigh and Terry 5 Lynn Nichols, for the purpose of hearing motions, a motion 6 filed on behalf of Mr. Nichols on December the 19th as a motion 7 to exclude eyewitness testimony and with supplemental filings 8 and also a motion filed for Mr. McVeigh on January the 7th as a 9 motion to suppress eyewitness identification with some 10 follow-up briefing on both sides, and we're here to consider 11 evidence in connection with these motions. 12 So as usual, our appearances today. 13 Mr. Mackey. 14 MR. MACKEY: Good morning, your Honor. Larry Mackey 15 on behalf of the United States. With me at counsel table is 16 Scott Mendeloff, Aitan Goelman and Beth Wilkinson. Also 17 Government counsel in the courtroom is Mr. Pat Ryan and Jamie 18 Orenstein. 19 THE COURT: All right. Thank you. 20 MR. MACKEY: And Sean Connelly. 21 THE COURT: And for Mr. McVeigh, Mr. Jones. 22 MR. JONES: Good morning, your Honor. Stephen Jones 23 on behalf of the accused, Timothy McVeigh. To my right, 24 Mr. Rob Nigh and Ms. Jerri Merritt and Ms. Cheryl Ramsey and 25 Mr. Tritico. 4 1 Your Honor, if I may, I wish to inform the Court that 2 one of your expert witnesses, Mr. Gary Wells, is present in the 3 courtroom and that he is an expert on this particular issue, 4 and I would ask that he be permitted to remain. And also, our 5 case agent, Mr. David Fecheimer, is also in the courtroom, and 6 I will ask that he be excused from the rule as a designated 7 case agent for Mr. McVeigh's team. 8 THE COURT: Any objection to that? 9 MR. MACKEY: None, your Honor. 10 THE COURT: All right, those requests are granted. 11 For Mr. Nichols. 12 MR. TIGAR: Mike Tigar for Terry Lynn Nichols. 13 Mr. Nichols has a written waiver of his appearance on file with 14 the Court. With me at counsel table, Ron Woods, Reid 15 Neureiter, Adam Thurschwell and Jane Tigar. 16 THE COURT: All right, thank you. 17 And, Mr. Jones, Mr. McVeigh has also filed his written 18 waiver of his appearance for these hearings. 19 MR. JONES: He has, your Honor. 20 THE COURT: Thank you. 21 Now, both defendants have filed motions. As I've 22 indicated, there's only one area I think in which there is -- 23 well, there are several areas actually that involve both, but 24 one area and one witness only as to Mr. Nichols. 25 Have you agreed among yourselves as to the order of 5 1 proceeding here? 2 MR. WOODS: Yes, your Honor. Ron Woods for Terry 3 Nichols. We've agreed that the McVeigh team will go first. 4 THE COURT: Okay. Then I'm prepared to hear from you 5 and proceed. 6 Mr. Jones. 7 MR. JONES: Your Honor, we'll waive opening statement 8 and begin the commencement of evidence. And if that pleases 9 the Court, we will call Mr. Tom Kessinger as our first witness. 10 THE COURT: All right, we'll get Mr. Kessinger. We 11 will, of course, impose the rule on sequestration of these 12 witnesses so that all testifying witnesses are excluded from 13 the courtroom as well as my earlier rulings on Rule 615. 14 If you'll come forward here, please, to be sworn by 15 the clerk. 16 (Thomas Kessinger was sworn.) 17 THE COURTROOM DEPUTY: Have a seat, please. Would you 18 state your full name for the record and spell your last name. 19 THE WITNESS: Thomas Kessinger. K-E-S-S-I-N-G-E-R. 20 THE COURT: You need to move the microphone here. 21 THE COURTROOM DEPUTY: I'm sorry. How do you spell 22 your name again? 23 THE WITNESS: K-E-S-S-I-N-G-E-R. 24 THE COURT: Thank you. Proceed. 25 DIRECT EXAMINATION 6 Thomas Kessinger - Direct 1 BY MR. JONES: 2 Q. Mr. Kessinger, your full name is Tom Kessinger? 3 A. Thomas. 4 Q. And your date of birth? 5 A. 10/26/49. 6 Q. Your social security number, sir? 7 A. 515-52-7220. 8 Q. And your place of birth? 9 A. Junction City, Kansas. 10 MR. MENDELOFF: I have to object to this. What is the 11 relevance for this kind of background information? 12 THE COURT: Identification, I assume. 13 Get on with it. 14 BY MR. JONES: 15 Q. Mr. Kessinger, where do you presently reside? 16 A. At 938 East 4th Street, Lot No. 11, Junction City Kansas. 17 Q. And are you still employed at Elliott's Body Shop? 18 A. No, sir. 19 Q. On April 17, 1995, you were working at Elliott's Body Shop; 20 is that correct? 21 A. Yes, sir. 22 Q. Between 4:15 and 4:30 p.m. on that day, were you on break 23 sitting in the office area? 24 A. Yes, sir. 25 MR. MENDELOFF: Judge, I have to object. There is no 7 Thomas Kessinger - Direct 1 reason for leading questions with this witnesses. He's a 2 neutral witness. He's not the Government's witness. He's not 3 an agent. 4 MR. JONES: I believe he's a hostile witness in the 5 classical sense. Also, there's no jury present. I'm simply 6 trying to move it along. 7 THE COURT: The objection to leading is overruled. 8 Proceed. 9 BY MR. JONES: 10 Q. Was your answer to my question yes? 11 A. Yes. 12 Q. At that point in time, did two males come in and begin a 13 conversation with Vickie Beemer about picking up a rental 14 truck? 15 A. Yes. 16 Q. For purposes of my questions today, Mr. Kessinger, I'm 17 going to refer to these individuals as Unidentified Subject No. 18 1 and Unidentified Subject No. 2, until I let you know 19 otherwise. 20 Which of the two individuals; that is, Unidentified 21 Subject No. 1 and Unidentified Subject No. 2, conducted the 22 transaction with Miss Beemer? 23 A. No. 1. 24 Q. The individual that you have identified as Unidentified 25 Subject No. 1 was very talkative and acted nervous; is that 8 Thomas Kessinger - Direct 1 correct? 2 A. Yes. 3 Q. And this individual was 5-foot 10 inches tall, weighed 175 4 to 185 pounds, had green or brown eyes, and a rough complexion 5 or acne; is that correct? 6 MR. MENDELOFF: Judge, objection. 7 THE COURT: Sustained. At this point, I think you 9 BY MR. JONES: 10 Q. What is your recollection of this individual's weight, 11 height, color of eyes, and complexion? 12 MR. MENDELOFF: Judge, objection, compound question. 13 THE COURT: Sustained. 14 BY MR. JONES: 16 A. Around 5 10. 17 Q. His weight? 18 A. I couldn't see that much of him to give any weight. 19 Q. Are you telling me that you could not give a weight? 20 A. I would only estimate. 21 Q. What is your estimate? 23 Q. I'm sorry? 24 A. 165 to 170 pounds. 25 Q. Do you recall being interviewed by Raymond Rozycki of the 9 Thomas Kessinger - Direct 1 FBI on April 20, 1995? 2 A. Yes, sir. 3 Q. At that time did you not tell this special agent of the 4 Federal Bureau of Investigation that Unidentified Subject No.
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