Trentadue-plaintiff's Opposition Motion to Strike Ecf

7/29/2019 Trentadue-plaintiff's Opposition Motion to Strike Ecf

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Jesse C. Trentadue (#4961)

8 East Broadway, Suite 200

Salt Lake City, UT 84111Telephone: (801) 532-7300

Facsimile: (801) 532-7355

[email protected]

Pro Se Plaintiff

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

JESSE C. TRENTADUE,

Plaintiff,

vs.

FEDERAL BUREAU OF

INVESTIGATION, UNITED STATES

DEPARTMENT OF JUSTICE OFFICE

OF INFORMATION AND PRIVACY,and UNITED STATES CENTRAL

INTELLIGENCE AGENCY,

Defendants.

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MEMORANDUM IN OPPOSITION

TO FBI DEFENDANTS MOTION

TO STRIKE

Case No.: 2:08cv788 CW

Judge Clark Waddoups

Chief Magistrate Samuel Alba

At the conclusion of the March 21, 2012, hearing on FBI Defendants Motion for

Summary Judgmentand Plaintiffs Rule 56(d) Motion For Continuance Pending

Discovery, the Court granted FBI Defendants request to submit additional evidence.1

1 Doc.103.

Case 2:08-cv-00788-CW-SA Document 107 Filed 06/25/12 Page 1 of 45


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On June 15, 2012, FBI Defendants filed aMotion to Strike,2 and a Supplemental

Memorandum in support of theirMotion for Summary Judgment.

3

Plaintiff hereby

submits thisMemorandum in opposition to FBI DefendantsMotion to Strike.4

INTRODUCTION

The focus of this lawsuit is upon several videotapes: (1) videotapes taken of the

Alfred P. Murrah Federal Building on the morning of April 19, 1995, which reportedly

show the delivery of the bomb and perpetrators of that mass murder; and (2) the original

videotape taken by the dashboard camera in Oklahoma Highway Patrolman Charles

Hangers vehicle showing the arrest of Timothy McVeigh a short time later on that same

morning and a potential accomplice in the bombing, Steven Colbern, who was reported to

be following McVeigh in a brown pickup truck.

It is also a case about the most crucial evidence in what was then the biggest

criminal investigation ever handled by FBI Defendants: the bombing of the Murrah

Building. FBI Defendants contend that they cannot find the videotapes showing the

bomb being delivered that morning, and that they only have what appears to be an edited

version of the Hanger videotape, not the original. Furthermore, rather than present the

2 Doc. 105.

3 Doc. 104.

4 Plaintiff will file a separate response to FBI Defendants Supplemental

Memorandum.

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Court with evidence showing that these tapes do not exist, FBI Defendants have filed a

Motion to Strike evidence presented by Plaintiff which clearly shows that these tapes do

exist and that FBI Defendants do not wish to make them public.

The American public, however, has a right to know what happened in Oklahoma

City on the morning of April 19, 1995 and, more importantly, why? Yet, it is obvious that

for some reason FBI Dedfendants do not want the truth about the Oklahoma City

Bombing made public. But whatever the reason, that is precisely why the Freedom of

Information Actbecame law: to protect the right of American citizens to know their own

history and, more importantly, their government.5 It is also why the Court should

recognize FBI DefendantsMotion to Strike as a subterfuge designed to lead the focus of

this dispute away from exposing the truth about the Oklahoma City Bombing.

5 The Freedom of Information Actwas designed to insure an informed citizenry,

which is so vital to the functioning of a democratic society, in order to guard againstgovernmental corruption and to hold the government accountable for its actions. Virgil v.

Andrus, 667 F.2d 931, 938 (10th Cir. 1982). Moreover, it is recognized that public interest

in disclosure under Freedom of Information Actis greatest when there is evidence of

governmental wrongdoing. See Lissener v. United States Custom Service, 241 F.3d 1220

(9th Cir. 2001).

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STATEMENT OF FACTS

FBI Defendants have moved to strike statements from four pieces of

documentary evidence submitted by Plaintiff. These are: (1) two sentences from a

Secret Service Time line, which documents surveillance cameras having recorded

the delivery of the bomb to the Murrah Building on the morning of April 19, 1995,

including the suspects who drove the Ryder truck carrying the bomb, and the

resulting explosion that took 168 lives; (2) a portion of two paragraphs from a

May 12, 1995, article in theHouston Chronicle reporting upon the contents of a

videotape taken by the dashboard camera in Oklahoma Highway Patrolman

Charles Hangers patrol vehicle which, according to that article, recorded not only

the arrest of McVeigh on the morning of April 19, 1995 but also recorded Steven

Colbern, a suspect in the Murrah Building Bombing, who was apparently traveling

with McVeigh; (3) three sentences from theDeclaration of Joe Bradford Cooley,

wherein he explains the operation of the Murrah Building surveillance cameras,

including how and where images from those cameras were recorded within a

month or so prior to the Bombing; and (4) one sentence from the Declaration of

former Oklahoma City Police Officer Don Browning, that likewise describes how

and where the images from the Murrah Building surveillance cameras were being

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recorded prior to the Bombing. The facts relevant to FBI Defendants challenge to

this evidence have been marshaled and are separately set forth below:

A. Secret Service Time line.

FBI Defendants have asked the Court to strike part of the Secret Service

Time line describing what surveillance cameras from the Murrah Building and/or

nearby buildings recorded on the morning of April 19, 1995. This, too, is a

distraction from what Plaintiff sees as the real issue, and that being FBI

Defendants total failure to present the Court with any evidence that to support

their claim that a videotape showing the bomb being delivered to the Murrah

Building on the morning of April 19, 1995, does not exist. The only thing

presented by FBI Defendants that even comes close to being considered evidence

on this point is the following suspicious statement under oath by Mr. Hardy:

While it is always possible that responsive documents

might have been misfiled and thus could be located somewhere

other than in the OKBOMB file (though it would be impossible

to know where). I am not aware that this is the case, and a

reasonable search did not and would not locate any such

documents (if they exist) because they would not be in a location

likely to contain responsive documents.6

6 Doc. 83-1, 20.(emphasis added).

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The following facts are relevant to FBI DefendantsMotion to Strike portions of

the Time line:

1. With the first entry being at 10:40 AM on the morning of April 19,

1995, the Time line is a 129 pages document prepared by the Secret

Service, which records the evidence being gathered by FBI during the weeks

immediately following the Bombing. Until now, Plaintiff has only filed selected

pages from that Time line. That Time line, in almost its entirety, is now attached

hereto as Exhibit 1.7

2 It is important to note that the Time line is also a real time

document in that it records by day and hour when the information was received by

the Secret Service and the source of that information. For example, the FBI seized

the original Hanger dashboard camera tape on April 27, 1995.8 On May 2, 1995,

the Time line records that FBI has obtained a videotape from the OK state

7 Plaintiffs copy of the Time line, however, is missing page 86. Plaintiff has also

removed from the Time line personal information as required by Federal Rule of Civil

Procedure 5.2 andDUCivR 5.2-1.

8 Doc. 91, pp. 45 and 46.

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police troopers vehicle of the vehicle stop of subject McVeigh and are

attempting to identify passing vehicles.9

3. FBI Defendants contend that this Time line was made part of the

record in this case on August 1, 2011, and again on October 7, 2011, when a

portion was submitted by Plaintiff in support of hisRule 56 Motion.10 But, FBI

Defendants are mistaken as to when this evidence became part of the record in this

case. The part of the Time line to which FBI Defendants object was first filed of

record on March 29, 2010,11 in support of Plaintiffs Motion to Compel production

of Murrah Building surveillance tapes.12 Yet FBI Defendants file noMotion to

9 Exhibit 1at p. 108 (emphasis added).

10 Doc. 105, p.2 2.

11 The portions of the Time line that FBI Defendants now challenge, however, had

likewise been sent by Plaintiff to them on October 7, 2009, as proof of the bomb delivery

tapes existence. See Doc. 61-2, pp. 72-78.

12 Doc. 48-3, p.4. This is significant because the admission of this evidence under

Federal Rule of Evidence 807 requires that the opposing party be given sufficient

advanced notice of the proponents intent to use the evidence in order to pose an

objection. And Plaintiff has clearly met the notice requirement ofRule 807. Furthermore,

all of the evidence challenged by FBI Defendants in theirMotion to Strike meets therequirements for admission under Rule 807: (1) it is being offered as evidence of a

material fact, existence of videotapes in FBI Defendants possession which show the

bomb being delivered to the Murrah Building and others involved; (2) this evidence is

more probative on the issue of the existence of such tapes than any other evidence that

Plaintiff could reasonably procure without the benefit of formal discovery options; and

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Strike until June 15, 2012,13 which was long after the Court had entered its May 13,

2011 Order.14

4. FBI Defendants do not dispute the authenticity of the Time line.

Instead, FBI Defendants contend that several statements in the Time line

should be stricken because they are hearsay and/or because the Secret Service has

disavowed the trustworthiness of these statements in sworn testimony.15

5. The portions of that Time line related to the tape from surveillance

cameras are set out below, with the portions which FBI Defendants have asked to

be stricken highlighted in blue:

ATSAIC McNalley contacted the ID/DD and reported that the

information contained herein is the result of a conference call between

FBI SAICs involved in the investigation and FBI Director Freeh.

(3) the admission of this evidence serves the interest of justice as well as the public

interest in the disclosure of those tapes under the Freedom of Information Act. See Rule

807. The Court likewise has considerable discretion in the admission of evidence under

Rule 807, which an appellate court will not disturb absent a definite and firm conviction

that the admission of the evidence a clear error of judgment. See Page v. Barko

Hydraulics, 673 F.2d 134, 140 (5th Cir. 1982).

13 Doc. 105.

14 Doc. 82. FBI Defendants delay in bringing theirMotion to Strike until after the

Courts May 13, 2011 Ordercertainly raises a waiver issue. See

15 Doc. 106, pp. 5-6.

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* * *

A witness to the explosion named Grossman claimed tohave seen

a pale yellow Mercury car with a Ryder truck behind it pulling up tothe Federal Building. Mr. Grossman further claimed to have seen a

woman on the corner waving to the truck. ATSAIC McNally noted that

this fact is significant due to the fact that the security video shows the

Ryder truck pulling up to the Federal Building and then pausing (7-10

seconds) before resuming into a slot in front of the building. It is

speculated that the woman was signaling the truck with a slot became

available.

A catering truck driver who was traveling east just prior to theexplosion noticed the Ryder truck in front of the Federal Building and

saw two men leaving the vicinity of the truck and crossing the street

heading for a brown pickup truck.

* * *

Security video tapes from the area show the

truck detonation 3 minutes and 6 seconds after the suspects [plural]

exited the truck.16

6. With respect to FBI Defendants hearsay claim, they overlook the

fact that the source of the challenged statements contained in the Time line was the

FBI, such as the information about surveillance film recovered from the Regency

Hotel . . . shows the Ryder truck moving to the OKC Federal Building,17 which

16 Doc. 98-3, pp. 2, 5 and 6.(emphasis added).

17 Exhibit 1, p. 61 at 1330 hours.

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came from Secret Service agent McNalleys conference call with FBI SAICs

involved in the investigation and FBI Director Freeh.18

7. The claim about the Secret Service having disavowed the

statements in the Time line about surveillance videotapes comes from an April 4,

2004, USA Today article, which FBI Defendants submitted as additional

evidence. 19 More importantly, in that article Stacy A. Bauerschmidt, the Secret

Service spokesperson, does not disavow the statements in the Time line as FBI

Defendants contend. Rather, Bauerschmidt says that the Secret Service does not

vouch for the reliability of the statements contained in the Time line. 20 Nor could

the Secret Service vouch for the accuracy of the Time line since the surveillance

videotape evidence apparently came from FBI Director Louie Freeh and/or other

FBI personnel.21

18 Id. at p. 60 at 1330 hours.

19 Doc. 106-1, p.2.

20 Doc. 106-1, p.2.

21

There is likewise no evidence to support the statement contained in the articlethat: A Secret Service agent testified . . . the government knows of no videotape. Doc.

106-1, p.2. That statement is clearly hearsay and does not meet the requirements for

consideration by the Court underRule 807. In addition, while the Secret Service may not

have any first hand personal knowledge about the existence of the bomb delivery

videotapes, it is certainly clear from the evidence produced by Plaintiff in the instant case

that FBI Defendants have such knowledge.

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8. It is should also be noted that FBI Defendants say nothing

about indicia of trustworthiness associated with this Time line, such as the fact that

FBI Defendants concede that it is a Government record. Yet that is not all of the

indicia of trustworthiness associated with the Time line referencing the existence

of surveillance tapes showing delivery of the bomb to the Murrah Building and the

subsequent explosion.22

9. There is, for example, a December of 1995 article inMedia

Bypass Magazine, about several FBI agents attempting to sell 19 minutes of video

footage taken from surveillance cameras on the Murrah Building and/or other

nearby buildings.23 TheMedia Bypass article states:

Senior FBI officials in Washington confirmed that the

bureaus internal Office of Professional Responsibility is tryingto determine whether the pair, assigned to the Los Angeles Field

Office, were involved in attempting to sell the tape.24

* * *

The fact that the FBI admits investigating two of its

employees for the attempted sale would seem to confirm the

22 The indicia of trustworthiness underRule 807, can come from sources outside of

the particular evidence at issue. See U.S. v. Van Lufkins, 676 F.2d 1189, 1192 (8th Cir.

1982).

23 Exhibit 2 hereto,(emphasis added).

24Id. at 33.

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existence of usable footage, which reportedly ended only when

the blast disabled the cameras.25

* * *[T]he tapes they provided reportedly included

excellent footage of the Ryder truck and the

suspectsMcVeigh and John Doe No. 2'leaving the vehicle.

A third camera reportedly captured the actual initial

detonation of the ANFO (ammonia nitrate and fuel oil) truck

bomb, according to sources who have viewed an edited and

enhanced version of the tape.26

* * *

Another FBI agent, reportedly based out of OklahomaCity, is under investigation after he allegedly ran off at least 12

copies of the videotape for friends and coworkers, said an agent

in Texas familiar with the investigation.27

* * *

[F]ootage from the YMCA camera shows a suspect

resembling Tim McVeigh stepping down from the drivers

side of the truck. He bends over for a moment to pick up

something or to tie his shoe, then walks north across the

street and out of camera range. . . .John Doe No. 2 exits the

25Id. If Mr. Hardy or FBI Defendants truly wanted to know about bomb delivery

videotapes, including their source and possible location, a good place to look would be

the files and documents related to FBI Defendants investigation of these two agents who

tried to sell the tapes. Another source of information would obviously be the record inthe McVeigh and Nichols criminal prosecutions, USA v. McVeigh et. al, District of

Colorado Case 1:96CR00068, but all entries prior to March 26, 2009, in the official court

docket of that case have disappeared. See Exhibit 3 hereto.

26Id.

27Id. at 35.

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passenger side of the vehicle.28 . . . [V]ideo footage from the

Regency Tower cameras also shows the initial explosion.29

This videotape that the agents were attempting to sell appears to have been

cobbled together from film taken by cameras located on the Murrah Building or

nearby buildings.

10. The videotapes showing delivery of the bomb on April 19, 1995,

may also have been from an ATM machine located at the Regency Hotel.

According to FBI records, [a]nalysis of the video footage indicates that the truck

was parked in front of the Federal Building for as little as four minutes prior to

exploding, 30 which is consistent with the Time line reference to the bomb

28Id. (emphasis added). Plaintiff had also requested the videotape from theYMCA cameras, but that have not been produced. See Doc. 61-2, p. 87. FBI records

reveal, too, that at least one of the cameras on the Journal Record Building faced toward

the explosion. Doc. 23-3, p. 22. And while FBI Defendants did produce videotapes

from the Journal Record Building cameras, he has seen no tape containing images of the

explosion that destroyed the Murrah Building.

29Id.

30 Exhibit 4 hereto. But even if cobbled together from other tapes, or taken from

an ATM machine at the Regency Apartments, this tape clearly fell within the scope ofPlaintiffs Freedom of Information ActRequest. Plaintiff asked for the videotapes taken

on the morning of April 19, 1995 by security or surveillance cameras located on the

Murrah Building and ten other near by buildings. Doc. 61-2, pp.33-36,and 44-45.

Plaintiff also made clear in thathis Request included the surveillance tape or tapes

showing the Ryder truck pulling up to the Federal Building and the pausing (7-10

seconds) before resuming into a slot in the front of the building and the truck

detonation 3 minutes and 6 seconds after the suspects exited the truck that was

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detonating 3 minutes and 6 seconds after the suspects exited the truck. In

addition to the December 1995Media Bypass article, there have been several

letters exchanged between Plaintiff and counsel for FBI Defendants about

evidence of missing or not produced surveillance camera videotapes.

11. For example, on January 23, 2012,31 Plaintiff wrote opposing

counsel stating:

I am writing to you in hopes of avoiding aMotion toCompel in this case concerning the Regency Tower surveillancecamera videotapes. In addition to the tapes from the Murrah

Building surveillance cameras, an important subject of this FOIAlawsuit was also the videotapes taken on the morning of April

19, 1995, by the exterior surveillance cameras mounted on the

Regency Tower Apartment Building.

As you recall, I made a specific request for the Regency

Tower videotapes, and commenced this lawsuit to obtain them.On or about July 16, 2009, Mr. Hardy sent me video coverage

for the Regency Tower (6 DVDs), responsive to your FOIA

described in the Secret Service Time line: To repeat myself for emphasis, I would like

copies of these tapes showing McVeigh and another person delivering the bomb to the

Murrah Building on the morning of April 19, 1995, and the detonation of that bomb. I

want these videotapes even if they are not among those [specific] videotapes I have asked

for in paragraphs 1 through 11 above. Doc. 61-2, pp. 44-45(emphasis in original). Seealso Doc. 61-2, p. 36 containing the same request. Furthermore, because Freedom of

Information Actrequests are to be liberally and broadly construed, it cannot be disputed

that Plaintiffs request for the bomb delivery videotapes would cover all such tapes,

regardless of whether they were from ATMs or surveillance cameras. See Anderson v.

Dept. of Health and Human Services, 907 F.2d 936,1 (10th Cir. 1990).

31 Exhibit 5 hereto.

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request [OKBOMB VIDEOTAPES] noted above.32 You may

also recall my complaints to you about those tapes having been

edited, which now appears to have been the case. I say this

because of the testimony of FBI agent Jon Hersley.

Recently, I happened upon the testimony that Mr.

Hersley gave on April 27, 1995, during the Preliminary Hearing

for Timothy McVeigh. In that testimony, Mr. Hersley

describes in detail a videotape from one of the Regency

Tower exterior surveillance cameras taken at approximately

9:00 AM on the morning of April 19, 1995, including images

of the Ryder Truck and yellow Mercury shown in that

tape.33

According to Mr. Hersely, this camera scanned the area

in front of the Regency Towers and that while, for some

unexplained reason, he had not watched the entire tape but was

shown still photographs produced from the tape, these

photographs showed the Ryder Truck moving in an easterly

direction towards the Murrah Building at approximately 9:00

AM on April 19, 1995.34

The problem that I am having is that none of the images

described by Mr. Hersely in his Preliminary Hearing testimonyappear on the 6 DVDs which Mr. Hardy sent to me. I would

very much appreciate it, therefore, if you could inquire of the

32 Id. (emphasis in original).

33Id. (emphasis added).

34 The Time line also references this videotape. Exhibit 1, p. 61 at 1330 hours. (A

surveillance film recovered from the Regency Hotel, has been enhanced and shows the

Ryder truck moving to the OKC Federal Building). Yet, further corroboration of the

Time lines trustworthiness from an evidentiary perspective.

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FBI about the missing video footage and provide me with a copy

as soon as possible.

12. On January 25, 2012, counsel for the FBI Defendants wrote back

assuring Plaintiff that he already had the videotape referenced by Hersley and

further stating that you are certainly free to apply whatever enhancement

techniques you wish to the footage yourself.35

13. Two days later, on January 27, 2012, Plaintiff responded:

Finally, it is also noteworthy that the FBI does not say that it

cannot find the Regency Tower surveillance tape. Rather, you say in

your January 25, 2012, letter to me that the photographs made from this

videotape which Agent Hersley saw, were produced through

enhancement techniques and, that since I am now supposedly in

possession of the videotape, I am certainly free to apply whatever

enhancement techniques . . .[I] wish to that footage. . . . However, as I

have repeatedly said, I was never given that videotape notwithstanding

your contention that it was provided to me by the FBI, which brings me

to a reasonable solution to this dispute.36

14. Counsel for FBI Defendants wrote back on February 1, 2012

insisting that the footage described by Agent Hersley in McVeigh Preliminary

Hearing testimony had been produced to Plaintiff in the DVD labeled 1B260

35 Exhibit 6 hereto.

36 Exhibit 7 hereto, at pp. 3-4.

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Regency. 37 Plaintiff immediately, February 1, 2012, responded to that letter

stating:

I am writing to follow up with you both on Ms. Wyers

letter to me of February 1, 2012, regarding the Regency Tower

surveillance camera videotapes. I have DVD 1 B260" to

which Ms. Wyer refers to in here letter,but the film on that

DVD is from the surveillance camera located in the lobby of

the Regency Tower facing the entrance. Yes, in a blur, it

does show the Ryder truck passing at the time indicated in

Ms. Wyers letter. What the FBI did not give me, however,were videotapes from the surveillance camera(s) mounted on

the exterior of the Regency Tower Apartment building

which, according to Agent Hersley testimony, scanned the

parking lot and 5th Street in Oklahoma City on the morning

of April 19,1995. 38

For your reference, I have enclosed a photograph of the

Regency Tower Apartments taken shortly after theBombing.This photograph was taken from in front of the Murrah Building

looking westward down 5th Street towards the Regency Tower

Apartments. If you enhance this photograph, you will see

that mounted on the southeast corner of the Regency Tower

Apartments at about the level of the 9th or 10th floors, is the

exterior camera that Agent Hersley said scans in front of

the Tower building and also over towards the parking lot.39

When I said that Agent Hersleys testimony about

not viewing the entire videotape from this camera was

incredible, what I meant was: Agent Hersley said, under

37 Exhibit 8 hereto at p. 1.

38 Exhibit 9 hereto.(emphasis added).


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oath, that his role in theBombing investigation was to

identify and locate other individuals who may have been

involved in the bombing on April 19th

, 1995. Yet he nevertook the time to look at that tape which scanned 5th Street

towards the Murrah Building in order to view the explosion

and images of the perpetrators! 40

I find equally hard to believe the FBIs statement to you

that there is nothing in the Time Line that the Secret Serviceprepared in theMcVeigh case which purports to describe any

materials as [being] in the possession of the FBI. I say this

because the Time Line clearly states that the information aboutthe Regency surveillance film came from a conference callwith FBI Director Freeh.

This all having been said, when can I expect to receive a

DVD containing the videotape footage taken on the morning of

April 19, 1995 by surveillance cameras mounted on the exterior

of the Regency Tower Apartment Building?

Plaintiff never received a response to that letter.

15. There is also the matter of the surveillance camera videotape

and 300 related documents that were being kept at FBI Headquarters during the

McVeigh prosecution and not in Oklahoma City with the other Bombing evidence,

which is highly suspicious. It is highly suspicious because FBI Headquarters does

not have an Evidence Control Center or Evidence Control Room.41 There would

have been, therefore, no proper chain of custody for this evidence. Keeping this


41 Doc. 83-1, 6.

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evidence at FBI Headquarters likewise appears to violated FBI evidence collection

and maintenance policies and procedures.42

16. The existence of this videotape being secreted at FBI

Headquarters surfaced as the result of a 1998 FOIA suit by a reporter named

David F. Hoffman.43 In that action, Mr. Hoffman requested essentially the same

videotapes and documents being sought by Plaintiff.

44

He asked for the Hanger

videotape, surveillance camera videotapes taken from the area surrounding the

Alfred P. Murrah Building on 4/19//95, and any other documents concerning the

tapes. 45

17. Mr. Hoffmans request was eventually denied because of the

ongoing criminal prosecutions against Tim McVeigh. The Hoffman Court,

however, specifically noted that there were 22 videotapes and 147 responsive

42 See FBIsManual of Administrative Operations and Procedures, Doc. 63-13.

See also Declarations of former FBI Agent Johnson, wherein the FBIs evidence

collection procedures are described. Doc. 70-1 and 91, pp. 37-41.

43 Hoffman v. United States Department of Justice, Western District of Oklahoma,5:98CV1773.

44 70-15, p. 2, s 4 and 6. For comparison, Plaintiffs request for the same

videotapes and all reports, including 302s that describe and/or reference the FBI taking

possession of the videotapes is in the record. See Doc. 61-2, pp. 18-19.

45 70-15, p.2, s 4 and 6.

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documents at the FBIs Oklahoma City Field Office,46 as well as one mystery

videotape and 300 responsive documents being kept at FBI Headquarters.47

18. There is likewise the FD-302 prepared of FBI agent Kaminskis

46 FBI Defendants, however, only provided Plaintiff with 164 pages of documents.See Doc. 61-2, p.56. Likewise, FBI Defendants produced 29 videotapes to Plaintiff (Doc,

61-2 pp. 63 and 66), but no videotapes from the Murrah Building cameras, the YMCA

Building cameras or tapes of the bomb being delivered although these videotapes had

been specifically requested by Plaintiff. See Doc. 61-2, pp. 43 through 45.

47 Doc. 70-15, p. 9. Of equal importance, theHoffman Court called the Justice

Departments conduct in that FOIA suit a shoddy conduct apparently designed to

maintain its shroud of secrecy in the Oklahoma City bombing case. Doc. 70-16, p. 5.

TheHoffman Court also observed that:

This case has been pending now for 2-1/2 years. Defendant has

received numerous opportunities to justify the exemptions invoked

during the administrative process to deny Plaintiff access to the FBIs

records. Defendants efforts have been disappointing. It has filed

summary judgment motions, accompanied by cursory arguments

and sketchy, at times almost unintelligible, affidavits. In the

Courts view, Defendants conduct has been unacceptable, to the

point that one might question whether the FBI has viewed its

FOIA obligations seriously. The Court is not an adjunct of the

Department of Justice that can be asked to accept the correctness of itsposition without question or to assume facts not in evidence.

Defendants must supply sufficient information to permit judicial

review of the Agencys decision to withhold records from disclosure.

Doc. 70-17, p 3.

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interview of Ronald E. Stakem. Mr. Stakem had driven by the Murrah Building

on the morning of April 19, 1995, just before the Bombing. In the early afternoon

of April 19, 1995, Stakem was contacted by an FBI agent by the name of

Kaminski, who wanted to know what Mr. Stakem had observed. The FBI agent

never explained to Mr. Stakem how he had known that Mr.Stakem had driven by

the Murrah Building that morning. Kaminski reports that Mr. Stakem assumed

that his license plate number had been retrieved from a video camera near

the Federal Building. If Mr. Stakem was incorrect in his thinking about having

been identified as a result of surveillance camera videotapes, Kaminski never

disabused Mr. Stakem of that fact.48

B. Houston Chronicle Article.

FBI Defendants attack upon theHouston Chronicle article is also

distraction designed to divert the Courts attention from the real issue concerning

this videotape which is: why FBI Defendants have not produce the original of

Trooper Hangers videotape of McVeigh arrest on the morning of April 19, 1995?

FBI Defendants have asked the Court to strike part of theHouston Chronicle

article describing the contents of the Hanger videotape, which differs markedly

48 Doc. 91.

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from the videotape actually produced to Plaintiff.49 Based upon information

received from an unidentified federal investigator theHouston Chronicle article

describes the videotape as showing a brown pick-up truck own by Colbern

traveling with McVeigh away from the Murrah Building blast site; whereas the

tape actually provided to Plaintiff by FBI Defendants only shows McVeighs

abandoned yellow Mercury parked beside the roadway following his arrest that

morning. The following facts are relevant to FBI DefendantsMotion to Strike

portions of theHouston Chronicle article:

1. When Plaintiff requested to see the original Hanger videotape,

FBI Defendants refused.50 In theirMotion for Summary Judgment, FBI

Defendants suddenly claimed that they only had an edited copy of that tape and

that the original Trooper Hanger video was kept by the Oklahoma Highway

Patrol.51 In fact, Mr. Hardy represented to the Court that [t]he original Hanger

video is retained by the Oklahoma Highway Patrol. 52 Thereafter in a subsequent

49

Doc. 53.50 Exhibit 6.

51Hardy Dec. Doc. 61-62, p. 36.

52 Doc. 61-2, 36.

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Declaration, Mr. Hardy said that his staff have no reason to believe that the tape

that was located is not a duplicate of the original Hanger tape, which was returned

to the Oklahoma Highway Patrol. Mr. Hardy likewise stated that no

documentation was found regarding this tape. 53

2. However, it is undisputed from FBI evidence control documents

that FBI Defendants took possession of the original Hanger videotape on April 28,

1995, and there is no evidence that it was ever returned.54 When these facts were

presented by Plaintiff to FBI Defendants, Mr. Hardy responded with a Fifth

Supplemental Declaration filed June 15, 2012, in which he states that he believes

Trooper Hanger now supposedly has the original videotape, but cannot confirm

that fact.55

53 Doc. 66-1, p. 4 fn. 2.

54 See Doc. 91, pp. 37-41, 45 and 46.

55 Doc. 104-2, p. 11. Mr. Hardys statement that the FBI Defendants returned the

original Hanger videotape to the Oklahoma Highway Patrol is also inconsistent with his

repeated representations to the Court that all of the OKBOMB evidence is in a warehouse

in Oklahoma City. It is likewise incredible that the FBI would have turned over the

original documentary evidence of McVeighs arrest and probable cause therefor toanyone, especially considering the potential for appeals, Motions for Post Conviction

Reliefand/or other proceedings that could go on for years. It is even more incredible that

FBI Defendants would have done so without keeping a record of the release of this

evidence, which would be a violation of the FBIs evidence chain of custody polices and

procedures. Doc. 91, pp. 2-4.

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3. FBI Defendants contend that this article was made part of the

record in this case on August 18, 2010, when it was submitted by Plaintiff in

support of hisRule 56 Motion.56 FBI Defendants are mistaken about that,

however. The article was first filed of record on April 1, 2010, in support of

Plaintiffs Motion to Compel.57

4. FBI Defendants contend that several statements in theHouston

Chronicle article should be stricken because they are hearsay and/or because the

article does not contain any indicia of trustworthiness so as to be admissible under

Federal Rule of Evidence 807.58

5. TheHouston Chronicle article about the Hanger videotape is

set out below in its entirety, with the portions that FBI Defendants have asked to

be stricken highlighted in blue:

A third man wanted in the Oklahoma City bombing has been

identified as Steven Colbern, a fugitive from a previous firearms

charge.

56 Doc. 105, p.2 1.

57 Doc. 51-3, p.2.

58 Doc. 106, pp. 3-4.

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Colbern, aged 35 or 36, is described as 6-foot-1 and 195 pounds

with green eyes, which roughly matches the description of John

Doe II.

Law enforcement sources said Thursday night that Colbern was

identified through his brown pickup. It was captured, by chance,

on video taken from the state trooper's car that stopped Timothy

McVeigh for speeding only 80 minutes after the blast.

That trooper had a hell of a day, a federal investigator said.

An automatic camera in the car of Trooper Charles Hanger was

taping the arrest of McVeigh. In the background was the image

of the pickup, which also pulled over while McVeigh was being

questioned.

Sophisticated enhancement techniques were used to improve the

video until investigators could read the license plate number.

The truck, registered to Colbern, contained traces of

ammonium nitrate, believed to be the main explosive

ingredient used in the bombing.59

Colbern's age is uncertain. His address is unknown, but he

shared a mail drop with McVeigh in Kingman, Ariz., sources

said. The truck was found parked outside an abandoned mobile

home in Kingman.

Colbern already was wanted on a federal firearms charge,

officials said. He was arrested last summer in San Bernadino,

Calif., for carrying a gun with a silencer. He was allowed to postbail but skipped.60


60 Exhibit 1 hereto, p. ..

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6. But indicia of trustworthiness can come from contemporaneous

records prepared by FBI Defendants and other Federal agencies, which

overwhelmingly support, just as stated in theHouston Chronicle article, the

presence of that pickup truck traveling with McVeigh on the morning of April 19,

1995, including its presence at the arrest of McVeigh shortly after the bombing by

Oklahoma Highway Patrolman Charles Hanger.

7. An evidentiary Time line of what occurred on the morning of

Wednesday, April 19, 1995 was prepared by the Secret Service. A portion of this

Time line to which FBI Defendants have not objected, states that:

A catering truck driver who was traveling east just prior

to the explosion noticed the Ryder truck in front of theFederal Building and saw two men leaving the vicinity of the

truck and crossing the street heading for a brown pickup

truck.61

8. Of major significance, the Time line states that [a] second

witness has been identified who observed McVeighs traffic stop on 04-19-95.

The witness said that a pickup truck was in the vicinity of the arrest, turned

61 Doc. 98-3, pp. 5-6. The Time line likewise clearly documents the link that FBI

Defendants had established between McVeigh and Colbern with in a few days following

the Bombing.

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around and passed McVeighs vehicle as he was being handcuffed.62 More

importantly, as previously noted a May 2, 1995 Time line entry records that: FBI

has obtained a videotape from the OK state police troopers vehicle of the

vehicle stop of subject McVeigh and are attempting to identify passing

vehicles.63

9. FBI documents also reveal that on April 19, 1995, immediately

following the bombing of the Murrah Building, John Kuper observed McVeigh in

his yellow Mercury and a brown pickup truck leaving the area.64 More

importantly, later that morning, another witness, Kevin Brown, observed

Highway Patrolman Hanger pull over McVeigh and noted that a brown pickup

truck also stopped in response to the Officers signal. Brown admitted that is

was speculation on his part, but he thought that Timothy McVeigh and the

brown pick up truck were traveling together.65

62 Exhibit 1, pp. 118-119.

63Id. at p. 108 (emphasis added).

64 Doc. 70-12 (emphasis added).

65 Doc. 70-13 (emphasis added).

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C. Cooley Declaration.

FBI Defendants have asked the Court to strike part of Joe Bradford

CooleysDeclaration wherein he describes the operation of the Murrah Building

surveillance cameras and videotape recording system just prior to the Bombing.

FBI Defendants contend that this evidence is either hearsay or somehow

irrelevant.66 The following facts are relevant to FBI DefendantsMotion to Strike

portions of the CooleyDeclaration:

1. FBI Defendants contend that Mr. CooleysDeclaration was made

part of the on August 18, 2011when it was submitted by Plaintiff in support of his

Rule 56 Motion.67 But, FBI Defendants are once more mistaken as to when this

evidence became part of the record in this case.. Mr. CooleysDeclaration was

first filed of record on March 29, 2010, in support of Plaintiffs Motion to Compel

production of Murrah Building surveillance tapes.68

2. Mr. CooleysDeclaration is set out below in its entirety, with

66 Doc. 106, pp. 6-8.

67 Doc. 105, p.3 3.

68 Doc. 49-4.

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the portions which FBI Defendants have asked to be stricken based upon hearsay

or relevancy highlighted in blue:

In the 1990's, I had a security and private investigators

license with the Council on Law Enforcement Education and

Training. From 1994 to 1996, I was employed as a Security

Captain and private investigator for Profile International

Security Services (PFI).

PFIprovided security and investigative work for

businesses and individuals. My duties with PFIincluded,among other things, the hiring, training and supervision ofPFI

security officers. I also assisted PFIin preparing bids to

customers for PFIs security services.

In early 1995, within three months PRIOR to the Alfred

P. Murrah Federal Building bombing on April 19, 1995, PFI

was in the process of preparing a bid for the security services

contract at the Murrah Federal Building in downtown Oklahoma

City, Oklahoma.

I directly participated in PFIs pre-bid investigation for

the security services contract at the Murrah Federal Building. In

doing so, I repeatedly met with Tom Hunt of the Federal

Protective Services.

The Federal Protective Services, now part of the

Department of Homeland Security, provides law enforcementand security services to federally owned and leased facilities.

Mr. Hunt was head of the Oklahoma City Office of Federal

Protective Services and the person in charge of security for the

Murrah Federal Building.

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My purpose for meeting with Mr. Hunt was to learn

about the daily responsibilities of the security staff at the Murrah

Federal Building in order to prepare PFIs bid. My contacts with

Mr. Hunt involved a thorough walk through of the Murrah

Federal Buildings security system, including the video

surveillance cameras used to monitor the Building.

Under Mr. Hunts direction, I reviewed the Murrah

Federal Buildings security system, especially the video

surveillance cameras. I spent many hours with Mr. Hunt at this

task.I met, for example, with Mr. Hunt at his office in the

United States Federal Courthouse, which is located directly

across the street and South of the Murrah Federal Building.

In Mr. Hunts office, I observed several computer screens and

monitors that were receiving real-time images from cameras at

the Murrah Federal Building.

On these monitors, I could see a complete view of the

North side of the Murrah Federal Building and NW 5th Street,

which the Building faced. Those views were from cameras

placed at the Northwest and Northeast corners of the Murrah

Federal Building.

I later toured the Murrah Federal Building and observed

these cameras. Those two cameras provided a clear view of the

North entrance to the Murrah Federal Building, including the

street and sidewalk. I understood from my conversations withMr. Hunt that the video surveillance cameras and recording

equipment was being provided by ADT Security Services, Inc

(ADT).

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At that time, ADTs offices were located approximately

five blocks from the former site of the Murrah Federal Building

on Broadway Avenue just north and east of downtown

Oklahoma City. To the best of my memory, Mr. Hunt said that

the VCR tape decks used to record the surveillance camera

images were located atADTs offices. He also may have said

that the recordings were done at his office. But either way, I

understood from conversations with Mr. Hunt that the Murrah

Federal Building surveillance cameras were being recorded on

videotape.

In addition to inspecting the monitors at Mr. Huntsoffice, Mr. Hunt also walked me through an underground tunnel

from the United States Courthouse to the Murrah Federal

Building. In doing so, we walked northbound into one level of a

multi-level underground parking ramp. Just before we came to

the entrance of the Murrah Federal Building via this parking

ramp we stopped at a room located on the east side of the tunnel

just north of the street entrance into the underground parking

area.

There was a metal detector in the room. Upon entry, we

were searched by individuals who Mr. Hunt said were Deputy

U.S. Marshals. After being searched, we were allowed to enter

the room. There were about five (5) Deputy Marshals in this

room. There were also security camera monitors in this room

showing the North entrance to the Murrah Federal Building.

These monitors also showed scenes from the surveillance

cameras placed inside of the Murrah Building.

I asked one of the Marshals how he liked working for the

Marshals Service. He told me that they were a private Deputy

U.S. Marshals service based out of Denver, Colorado and were

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not associated with the Federal Marshals Service. I also asked

if they were authorized to carry firearms or make arrests off site

and I was told no. I thought this was odd but Mr. Huntconfirmed that this was the case. We continued our walk and

entered the Murrah Building and proceeded on a complete tour

of that Building, including the Social Security Office, the HUD

offices and Americas Kids Daycare Center.

On April 19, 1995, I was at the scene of the bombing

within minutes of the blast. I arrived so quickly at the bombing

scene because I was having breakfast at a restaurant about four

blocks away from the Murrah Federal Building. When I arrived

on the scene, I noticed that the street entrance to the

underground parking lot (on the east side of the Murrah Federal

Building) and just south of the Marshals Station I had recently

visited, was filled up with bricks and debris from the blasts. I

never heard what happen to the people who were in the

Marshals Station that day. I presumed they had been killed.

Ultimately,PFIwas not awarded the security servicescontract for the Murrah Federal Building. Had it been

given that contract, I and otherPFIemployees would have

been at the Marshals station when the bomb exploded.

Consequently, that inspection of the Murrah Federal

Buildings security system will forever remain vivid in my

mind as will the location of the security cameras, monitoring

screens and other equipment that I had seen.69

From my knowledge of the video surveillance security

system in place at the Murrah Federal Building, and my presence


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on scene just after the bomb exploded, I have no doubt that the

two external cameras on the Northwest and Northeast corners of

that Building would certainly have recorded the entire event.Those cameras would even have recorded the delivery of the

bomb to the Murrah Federal Building in a Ryder truck and, most

importantly, those cameras would also have recorded everyone

who exited that truck prior to the explosion. Because of their

distance from the Murrah Federal Building, ADTs offices were

not destroyed or otherwise damaged in the bombing, which

means that the videotapes should still exist.70

D. Browning Declaration.

FBI Defendants have asked the Court to strike part of former Oklahoma

City Police Officer Don BrowningsDeclaration wherein he, too, describes the

operation of the Murrah Building surveillance cameras and videotape recording

system prior to the Bombing. FBI Defendants contend that this evidence is

likewise irrelevant and that Officer Browning lacks the foundation to describe

what he observed about the Murrah Building surveillance-security system.71 The

following facts are relevant to FBI Defendants Motion to Strike one sentence from

the Browning Declaration article:

70 Doc. 63-2.

71 Doc. 104, pp. 8-9.

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1. FBI Defendants contend that Officer BrowningsDeclaration was

made part of the record on August 18, 2011when it was submitted by Plaintiff in

support of hisRule 56 Motion.72 But, FBI Defendants are once more mistaken as

to when this evidence became part of the record in this case. Officer Brownings

Declaration was first filed of record on March 29, 2010, in support of Plaintiffs

Motion to Compel production of Murrah Building surveillance tapes.73

2. BrowningsDeclaration is set out below, with the portions

which FBI Defendants have asked to be stricken highlighted in blue:

I am currently retired from the Oklahoma City Police

Department. However, during the time period of 1990 until after

the bombing of the Alfred P. Murrah Federal Building in

Oklahoma City, Oklahoma I was a member of the OklahomaCity Police Department.

During the early 1990's, I was part of the Departments

Solo Motorcycle Squad. Part of my duties as a motorcycle

patrol officer was to provide security for the President and Vice

President of the United States of America, and others under the

protection of the United States Secret Service, if and when they

visited Oklahoma City. My specific duties involved protecting

the motorcade carrying these federal officials.

72 Doc. 105, p.3 3.

73 Doc. 49-5.

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In carrying out these duties, I worked with the Secret

Service, which had its offices in the Murrah Federal Building. I,

in fact, received briefings and training from the Secret Servicewith respect to providing security for those motorcades and

federal officials.

After that training, we were usually allowed a courtesy

tour of the facilities which would involved a review of the

surveillance cameras at the Murrah Federal Building, including

the cameras mounted on the exterior of the Building. This walk

through was conducted by a Secret Service Agent and included a

visit to the offices of the Federal Protective Services, which I

understood to be responsible for providing law enforcement and

security services to the Murrah Federal Building.

The offices the Federal Protective Services were located

in the United States Courthouse. While in the offices of the

Federal Protective Services, I was shown the television cameras

monitoring the entrances to the Murrah Federal Building and the

videotape decks on which the images from those cameras wererecorded. Those cameras showed, in real time, the entrances to

the Murrah Building as well as NW 5th Street, which the

Building faced.

On April 19, 1995, I was part of the Oklahoma City

Police Departments K-9 Unit. Shortly after the bomb

exploded that day destroying the Murrah Federal Building, my

dog Gunny and I were on scene assisting in the location and

rescue of people trapped by the debris from the blast.

While assisting in the rescue of a woman trapped in the

rubble, Gunny and I were ordered out of the Building by an

FBI agent. The other non-federal rescuers were also ordered to

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leave the Building with me, which I thought was strange given

the carnage and need to move quickly in hopes of locating and

hopefully saving more victims trapped by the blast.

That same morning, I observed men wearing jackets

with FBI printed on the back removing the surveillance

video cameras from the exterior of the Murrah Federal

Building. I thought this was part of the FBIs evidence gathering

or chain of custody procedures since those exterior cameras

would have shown and recorded delivery of the bomb in a Ryder

truck that morning as well as the person or persons who exited

that truck.74

I knew from my training and experience as a police

officer that an investigation of the bombing and prosecution of

those involved would require not only preserving the videotapes

of the event but also require preserving the cameras and tape

decks by which those videotapes were made. Nevertheless, I

did think it odd that the FBIs removal of those cameras was

taking place while many people were still trapped alive in the

rubble of the Murrah Federal Building and so many of us

were working desperately to find them.75

74 Id. (emphasis added). That FBI Defendants took the Murrah Building cameras

as described by Officer Browning is already clearly documented in the record of this case.

See Doc. 63-8. More importantly, FBI Defendants do not dispute this fact. Rather, they

attempt to trivialize the incident by claiming that: It is just as possible that FBI agents

would have collected the cameras even if there were no recorded footage, or that the

agents Mr. Browning claims to have seen might have collected the cameras without

knowing whether there was recorded footage or not. Mr. Brownings observation ofagents on the bombing site is not probative of whether there was ever actually

surveillance footage from the Murrah Building cameras on the day of the bombing.

Doc. 106, p. 12. When these cameras were taken in to evidence, the FBI agents doing so

were required to prepare an FD-192 and a FD 302 as part of the chain of custody

procedure. See 91, pp. 2-4. Those records, however, have not been produced in response

to Plaintiffs Freedom of Information Act Request. See Doc. 23.

75 (emphasis added).

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THEMOTION TO STRIKE SHOULD BE DENIED

The issue actually framed by FBI DefendantsMotion to Strike is : whether

Plaintiff has made the necessary showing for discovery? If the Plaintiff or the

Agencys response raises serious doubts as to the completeness and good faith of the

Agencys search, discovery is appropriate. 76 FBI Defendants apparently

believe that if theirMotion to Strike is granted, Plaintiff cannot make the

necessary showing for the discovery he needs to oppose the pending Motion for

Summary Judgment. But, as Plaintiff is prepared to demonstrated in his soon to be

filed response to FBI Defendants Supplemental Memorandum,77 even without the

evidence that is the subject of theMotion to Strike, this is an appropriate case for

discovery given the public importance of the videotapes and the other admissible

evidence of FBI Defendants bad faith. Furthermore, as Plaintiff is prepared to

demonstrate herein below, the Time line, theHouston Chronicle article, Cooley

Declaration and BrowningDeclaration meet the admissible evidence requirement

76 37AAm.Jur.2dFreedom of Information Acts, 503(emphasis added).The discoverypermitted under FOIA is designed to disclose the malfeasance of the government. SeeTrentadue v. FBI, 572 F.3d 795 (10th Cir. 2009); Judicial Watch, Inc. v. United States Dept. Of

Commerce, 127 F.Supp.2d 228 (D.C. D.C. 2000).

77 Doc. 104.

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of both Federal Rule of Civil Procedure 56, which Plaintiff believes is the wrong

standard in a Freedom of Information Actcase, and the totality of the

circumstances testthat the 10th Circuit articulated in Trentadue.

Plaintiff submits that the proper standard for the Court to apply is what

appears to be a totality of the circumstances testarticulated by the 10th Circuit in

Trentadue v. FBI, 572 F.2d 794 (10th Cir. 2009). According to the Trentadue

Court, under the Freedom of InformationActthe reasonableness of FBI

Defendants search and Plaintiffs possible need for discovery depends upon the

likelihood that the search actually conducted would yield the sought-after

records/information, whether there are readily available alternatives for obtaining

the records/information, and the burden of employing those alternatives?78 A

totality of the circumstances testis also employed by the 10th Circuit to determine

probable cause for the issuance of a search warrant, which is an analogous

situation.79

Within a probable cause search warrant context, the totality of the

78Id., 572 F.2d at 798.

79 United States v. Richardson, 86 F.3d 1537 (10th Cir. 1996).

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circumstancestestmeans that the Court makes a practical, common sense analysis

of the totality of the circumstances to determine if there is a fair probability of that

evidence of a crime will be found in the place to be searched.80 If so, then the

warrant can constitutionally be issued. In the context of this case, a totality of the

circumstances testmeans that the Court makes a practical, common sense analysis

of the totality of the circumstances to determine if there is a fair probability that

FBI Defendants did not conduct an adequate search for the records/information,

and whether these materials can be found with additional searches that are not

unreasonably burdensome.

If the Court concludes that there is a fair probability that the FBI

Defendants did not conduct an adequate search and/or that the records/information

can be found with additional searches that are not unreasonably burdensome then

discovery including, but not limited to additional Court ordered manual and

computerized searches, should be allowed. More importantly, however, the same

evidentiary standards for determining the probable cause to issue a search warrant

should apply to establishing the need for discovery under the Freedom of

80Id. at 1545.

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Information Actcase.

The United States Supreme Court has made clear that there is a different

standard of proof used in obtaining a search warrant to look for evidence of a

crime than the standard governing use of any evidence found in a subsequent

criminal trial. The proof necessary to obtain a warrant need not be admissible at

trial.81 Consequently, hearsay evidence may form the basis for the issuance of a

search warrant.82 Probable cause for the issuance of a search warrant can likewise

be based upon multiple layers of hearsay.83 In order to establish the probable

cause for a warrant, it is also not necessary to reveal the identities of the

individuals providing the hearsay information.84 Thus under the Fourth

Amendments totality of circumstances standard, the evidence which FBI

Defendants now challenge would collectively support the issuance of a warrant to

search various FBI facilities for the missing videotapes. The same rationale

applied to issuance of a search warrant should likewise apply to the evidence that

81 See Jones v. United States, 362 U.S. 257, 269 (1960).

82 United States of America v. Mathis, 367 F.3d 1200, 1204-05 (10th Cir. 2004).

83 See $149,422.43 in U.S. Currency, 965 F.2d 868, 874 n.3 (10th Cir. 1992).

84Id.

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FBI Defendants are challenging in theirMotion to Strike.

The analogy to the evidentiary standards applied to the issuance of a

search warrant is even more compelling when one considers that in a Freedom of

Information Actcase, the requestor has no access to subpoenas or discovery tools

to obtain admissible evidence to establish the agencys bad faith. The purpose of

the discovery in a Freedom of Information Actcase is also similar to the purposes

of search warrant. With a search warrant, the Government is looking for evidence

of a crime for use in a later prosecution. Similarly, in a Freedom of Information

Actcase the purpose of the discovery is to obtain evidence of the Governments

bad faith.85 In both situations, the purpose is to look for evidence necessary to

prove a crime or other wrongdoing in a subsequent proceeding. And, with respect

to a subsequent proceeding, the Federal Rules of Evidence would apply, but they

should not apply at the preliminary stage of trying to obtain the evidence to prove

a crime in the case of a search warrant or the need for discovery in a Freedom of

Information Actsituation.

85 See Giza v. Secretary of Health, Education and Welfare, 628 F.2d 748, 7511 (1st

Cir. 1980)(whether a thorough search for the records has take place);Niren v. INS, 103

F.R. D. 10(D.C. Or. 1984)(to determine adequacy of agency search and basis for claims

of exemptions).

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Yet, even setting aside the totality of the circumstances evidentiary

standard applicable to search warrants, FBI DefendantsMotion to Strike is still

flawed. To begin with, FBI Defendants have waived any objection they might

otherwise have had to the Time line evidence and other challenged evidence

because they did not move to strike any of this evidence until long after the

Courts May 13, 2011, Order. Neither did the Courts Orderpermit FBI

Defendants to submit additional evidence permission to bring their belated

Motion to Strike. But even if that were not the case, the Time line statements

attributable to the FBI are evidentiary admissions, not hearsay.86

And, as a catchall, the Time line statements meet the requirements ofRule

807 because they are offered as evidence of a material fact, existence of

videotapes in FBI Defendants possession which show the bomb being delivered

to the Murrah Building and those involved; this evidence is more probative on the

issue of the existence of such tapes than any other evidence that Plaintiff could

reasonably procure without the benefit of formal discovery options; and the

86 See Federal Rule of Evidence 801(2);Burkey v. Ellis, 483 > Supp. 897, 891 fn.

12 (N.D. Ala. 1979);Murray v. U.S., 73 F.3d 1448 (7th Cir. 1996);Lang v. City of

Kotzebue, 982 P.2d 1270, 1273 (Ak. 1999).

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admission of this evidence serves the interest of justice as well as the public

interest in the disclosure of those tapes under the Freedom of Information Act.87

These same non-hearsay arguments apply to theHouston Chronicle article even if

the statements came from an unidentified FBI agent, and to the Cooley

Declarations. references to the statements of Mr. Hunt of Federal Protective

Services, who was responsible for security at the Murrah Building.

Likewise,Rule 807 is especially applicable to theHouston Chronicle

article and to Mr. CooleysDeclaration given how strongly corroborated the

article is by FBI records documenting the numerous witnesses who observed a

brown pickup truck traveling with McVeigh immediately after the Bombing, as

well as the Time lines reference to the fact that the FBI has obtained a

videotape from the OK state police troopers vehicle of the vehicle stop of

subject McVeigh and are attempting to identify passing vehicles; 88 and by

Officer Brownings observation of the videotape recording system.

FBI Defendants relevance challenges to Cooley and Brownings

87 See Federal Rule of Evidence 807.

88 Exhibit 1 hereto at p. 108 (emphasis added).

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Declarations is also wide of the mark..The relevance of the fact that the images

from the Murrah Building surveillance cameras were being recorded before the

Bombing is obvious: The tapes exist and should have been found had a good faith

search been conducted..

FBI Defendants foundational challenge to Officer Brownings

Declarations is easily disposed of, too: It certainly does not require an expert to

describe what Browning said he personally observed, which were the images from

the Murrah Building surveillance cameras being transmitted to the offices of the

Federal Protective Services and the videotape decks on which those images were

being recorded. The fact that this occurred during the early 1990s does not make

Officer Brownings observations irrelevant. Rather, Brownings observations

coupled with Mr. CooleysDeclaration make it very clear that the Murrah

Building surveillance cameras were being recorded and that the tapes Plaintiff

seeks exist.

DATED this 25th day of June, 2012.

/s/ jesse c. Trentadue

Jesse C. Trentadue

Pro Se Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on the 25th day of June, 2012, I electronically filed the

foregoing MEMORANDUM with the U.S. District Court. Notice will automatically be

electronically mailed to the following individuals who are registered with the U.S.

District Court CM/ECF System:

KATHRYN L. WYER, Esq.

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, NW

Washington, D.C. 20530

JARED C. BENNETT, Esq.

Assistant United States Attorney

185 South State Street, #300Salt Lake City, Utah 84111

Attorneys for Defendants

/s/ jesse c. trentadue


Trentadue-plaintiff's Opposition Motion to Strike Ecf

Documents

Transcript of Trentadue-plaintiff's Opposition Motion to Strike Ecf