3. Carol Howe and the Bureau of Alchohol [sic], Tobacco and Firearms.

The defense investigation has accumulated a significant amount of information aside from discovery which indicates that ATF informant Carol Howe informed her agency handlers, the Bureau of Alcohol, Tobacco, and Firearms, prior to April 19, 1995, that various residents of Elohim City were planning an attack on Federal Buildings which included the Alfred P. Murrah Federal Building in Oklahoma City. The defense believes that the government received this information, and in fact followed up on it, in the early morning hours of April 19, 1995. D.E. 3313 at 1.

Previous representations to the Court by government counsel that Mr. Strassmeir "was never a subject of the investigation"[11] are inaccurate and misleading at worse and economical with the truth at best as outlined above. The government in fact conducted an investigation of Mr. Strassmeir and Mr. Mahon in the days immediately following the Oklahoma City bombing, and then failed to follow through on the investigation, not because it was unproductive, but because to pursue the investigation would in effect lead back to the government's knowledge of prior warning. Defense counsel is of the opinion that the government has engaged in a willful and knowing coverup of information supplied to it by its informant.

As a threshold matter, counsel for Mr. McVeigh have requested, in writing, that the government provide information concerning Dennis Mahon and Andreas Strassmeir since February 15, 1996. See D.E. 1923 Exhibit "N" (letter to Beth Wilkinson requesting specific information concerning various individuals, but specifically naming Dennis Mahon and Andreas Strassmeir). On March 8, 1996, Mr. McVeigh filed a discovery motion, seeking specifically intelligence information from the federal government and specifically mentioning Dennis Mahon and Andreas Strassmeir. See D.E. 1079 at 7 18, 19. Dissatisfied with the government's responses, counsel filed a Motion to Compel Production of Discovery Material on August 27, 1996, again, specifically referencing Dennis Mahon and Andreas Strassmeir. See D.E. 1921 Exhibit "C."

On October 10, 1996, counsel for Mr. McVeigh amended the Motion to Compel Production of Discovery Material, reiterating specific requests for information concerning Dennis Mahon and Andreas Strassmeir. See D.E. 2265 at 34. Most recently, counsel addressed outstanding discovery requests in a Supplemental Motion to Compel the Production of Discovery Information, reiterating the previous specific requests for information concerning Dennis Mahon and Andreas Strassmeir. See D.E. 2768 at 6-7.

In a nearly one-foot-thick pleading filed October 18, 1996, the government responded to McVeigh's Motion to Compel the Production of Classified Information, specifically including information the government possessed concerning Dennis Mahon and Andreas Strassmeir. See D.E. 2331. Absent from that pleading, and also from the information responsive to defense requests for information concerning Dennis Mahon and Andreas Strassmeir, was Insert No. E-427, a report of interview by the AFT, which concerned a confidential ATF source named "Carol." See D.E. 3313 (Exhibit "D").

Counsel for Mr. McVeigh has now learned that "Carol" is actually Carol Howe, an ATF informant at Elohim City, who had an intimate relationship with Dennis Mahon, who knew Andreas Strassmeir, and whom ATF Agent Angela Finley interviewed on April 21, 1995--two days after the bombing. This particular Insert was brought to our attention by government counsel during the in-chambers conference of January 29, 1997. See Reporter's Transcription (Scheduling and Rule 17.1 Conference-Sealed) at 65, no docket number assigned [hereinafter "Tr. _"]). Government counsel indicated to the district court that this Insert had been disclosed to the defense on January 23, 1996, but candidly admitted that the government did not list this Insert in its prior submissions to the district court because the government could not find it through a computer search. Id. at 66.

The Defendant does not credit this explanation, coming as it does after so many false, misleading representations from a former intelligence officer now on the prosecution team. The defense was unable to locate this "non-pertinent" Insert using a computer because all major search terms contained in the Insert were misspelled. Elohim City was misspelled or misidentified, as was Mahon, Strassmeir, the Rev. Robert Millar, and, in addition, Carol Howe was not identified in the Insert at all. Agent Finley's source was identified as a "confidential source" named "Carol"--no last name given. Thus, it is not even clear from the Insert that "Carol" was the confidential source's real name.[l2] Elohim City was spelled "Elohm [sic] City," Dennis Mahon was spelled "Dennis Mehaun," Reverend Robert Millar was spelled "Bob Lamar'" and Andy Strassmeir was spelled "Andy Strasmeyer."

According to government counsel and interviews with other parties, Carol Howe contacted Agent Finley, her ATF "handler" (see Tr. at 67) and informed the ATF that she had been at the Elohim City compound and may have seen "Unsub 1" and "Unsub 2". D.E. 3123 (Exhibit "A" at 1). Carol Howe informed Agent Finley on April 21, 1995, that she learned about Elohim City when she called a racist hotline in May, 1994 and met the hotline operator/owner Dennis Mahon who would visit Elohim City to engage in paramilitary training. She also told Agent Finley that the security officer at Elohim City was Andy Strassmeir, whom she described as an illegal alien from Germany and a former West German infantry officer. Id.

Although Strassmeir has a German accent, he speaks English fluently, and according to Ms. Howe, Strassmeir talked frequently about direct action against the U.S. government, he trained in weaponry, and he discussed assassinations, bombings and mass shootings. She also described the residents at Elohim City as ultra-militant white separatists where required reading includes Mien Kampf and The Turner Diaries. Mahon discussed with Carol Howe "targeting federal installations for destruction through bombings, such as the IRS Building, the Tulsa Federal Building, and the Oklahoma City Federal Building." Id. (Exhibit "A" at 2).

In fact, Mahon not only discussed the destruction of the federal building in Oklahoma City by bombing, according to Ms. Howe, Mahon and Strassmeir took at least three trips to Oklahoma City in November and December 1994 and again in February, 1995--and Carol Howe accompanied them during the December 1994 trip. She has repeated these facts to several reporters. Ms. Howe reported all of this information to the FBI[13] the day after the bombing, and yet government counsel still insists that Andy Strassmeir was "never a subject of the investigation" (see Tr. at 68), but curiously does not make the same statement concerning Dennis Mahon.

But the one thing that is clear is that Carol Howe was an ATF informant feeding the ATF information concerning Elohim City, Dennis Mahon and Andreas Strassmeir both before and after the bombing of the Murrah Building. Ms. Howe was the one-time girlfriend of a person named James Viefhaus. Viefhaus has been indicted by a Federal Grand Jury in Tulsa, Oklahoma for threatening to destroy buildings by means of an explosive in 15 cities across the United States, as well as knowingly possessing an unregistered destructive device. D.E. 3123 (Exhibit "B"). The Viefhaus case has received considerable media coverage in the Tulsa area. Id. (Exhibit "C").

Viefhaus was arrested December 13, 1996, after federal authorities connected him to a recorded message, traced to his residence in Tulsa, which reportedly stated that the bombing of 15 U.S. cities would begin December 15, 1996, unless action was taken against the federal government by "white warriors" before that date. U.S. Magistrate Frank H. McCarthy "expressed concern" about investigative reports that Viefhaus has compiled lists of buildings to be bombed and that Viefhaus possessed pictures of at least two buildings in Tulsa that house federal employees. Id.

FBI agents claimed that they found ammonium nitrate and other chemicals that could be used in bombing-making in Viefhaus' home and that the search of Viefhaus' home including written instructions for bomb-making and references to the lengths of pipes, caps, screws and fuses, as well as black powder, accellerants, and various loaded firearms. Id. (Exhibit "C" at 3). In addition to this information, the search of his house also uncovered a how-to book about constructing homemade weapons as well as a photograph of Viefhaus and his "housemate" holding weapons and wearing swastikas on their clothing. The message that the federal agents have connected to Viefhaus is believed to be affiliated with the National Socialist Alliance of Oklahoma, and the speaker on the tape had reportedly endorsed the bombing of the Murrah building in Oklahoma City.

Carol Howe is the person described as Viefhaus' "housemate" and is the person in the picture with Viefhaus where the both of them are wearing swastikas on their clothing. For his part, Mahon has stated to the press that he does not believe that Howe and Viefhaus are guilty of anything, that he knows these two persons, and "they gave me their word that they were above ground and totally legal. They stand up for White Aryan beliefs." Id. (Exhibit "C" at 9).

Mahon does indeed know both of these persons. Carol Howe had actually filed a petition in open court in Tulsa, Oklahoma, for a protective order against Dennis Mahon on August 23, 1994.[14] Id. (Exhibit "D"). The basis for the protective order was threatening phone calls in which Mahon told Howe that he would "take steps to neutralize" her because he perceived that she had turned on the movement, meaning the agenda of the White Aryan Resistance of which Mahon is in charge in Oklahoma.

Counsel for Mr. McVeigh has contacted counsel for Mr. Viefhaus, Craig Bryant, Assistant Federal Public Defender for the Northern and Eastern Districts of Oklahoma, and Mr. Bryant has in turn spoken with Ms. Howe at the federal courthouse in Tulsa. According to Mr. Bryant, Ms. Howe is the girlfriend of James Viefhaus, and asked to speak with Mr. Bryant because of his concern over the fact that she had not been indicted by the grand jury, but James Viefhaus, her boyfriend, had been indicted. Mr. Bryant stated that the prosecutor in the case, Ken Snoke, stated in open court that shortly after James Viefhaus' arrest, the government felt Ms. Howe was equally culpable--yet she was not indicted. Id. (Exhibit "E").

Ms. Howe told Mr. Bryant that the reason she was not indicted because she served as a confidential informant for the ATF for several months in 1995, and that the information she provided to the ATF concerned an investigation of Dennis Mahon. Ms. Howe believes that the reason she was not indicted along with her boyfriend was that the government does not want her prior work as a confidential informant for the ATF to become public knowledge.

Carol Howe was subsequently indicted on March 11, 1997, in a superseding Indictment in the United States District Court for the Northern District of Oklahoma, No. 97-CR-05-C. The defense believes that an Indictment was obtained against Carol Howe for the purposes of "leverage" against her in order to keep her mouth shut about what she knows about the activities of Mahon and Strassmeir. The information she possesses suggests strongly that the ATF, the most hapless and beleaguered of the federal law enforcement agencies, may have had notice that militant right wing radicals had targeted the Alfred P. Murrah building for destruction and botched the interception of the plan in their finest Waco tradition. The institutional repercussions for ATF if Carol Howe is telling the truth could be the death knell of that organization. Information corroborative of Carol Howe will be provided, if at all, only through the most coercive judicial means.

When counsel filed a Motion to Compel Production of a variety of tangible objects relating to statements made by Carol Howe, an ATF informant, concerning the possibility of a prior warning being given to the government of a possible terrorist attack on federal buildings in Oklahoma, including the Alfred P. Murrah Federal Building (D.E. 3123), government counsel asked defense counsel to hold the matter in abeyance pending review of documents that would be submitted to defense counsel concerning Carol Howe, and the district court then asked that counsel advise the court whether production was sufficient or the motion was moot. Counsel thereafter advised the district court that the issue was not moot and that the order to produce should issue. D.E. 3313 at 2.

Information furnished to counsel by the government on Thursday, February 6, 1997, concerning the Carol Howe matter raises grave questions concerning the credibility of representations made to the District Court, repeatedly, and made to the public and survivors and next of kin of the victims of the Alfred P. Murrah Federal Building explosion as to whether the government had prior knowledge that the Murrah Building might be attacked.[15]

Although it might appear at first glance that this issue would not directly be related to the issue of Mr. McVeigh's guilt, in fact, it is very much an issue for the Court to consider. To begin with, it has consistently been the government's belief and argument that two, and only two, individuals were the "masterminds" (to use the prosecution's statement of April 9, 1996, (D.E. 3313 at 6) at page 56) for the Oklahoma City bombing. Carol Howe's statement indicates that there are other "masterminds" including at a minimum Andreas Strassmeir, or Dennis Mahon, and quite possibly Reverend Robert Millar. In addition, aside from impacting upon Mr. McVeigh's guilt as a "lesser participant" in Count One, it might be a direct defense for Counts Two through Eleven, especially when the government does not have a single eyewitness to place Mr. McVeigh in Oklahoma City that it is willing to sponsor at trial. Finally, the issue of government prior knowledge is directly related to the appropriateness of punishment and is a strong mitigating factor should Mr. McVeigh be convicted of one or more of the substantive counts.

Repeatedly, the government has denied that it had any prior knowledge of a suspected bombing attack on the Murrah Building on April 19, 1995. The government has not qualified these denials by saying it had no credible information. In this connection, the government's representations to the district court are not dissimilar from the ones government counsel made which have subsequently been amended. Government counsel advised the district court at the April 9, 1996, session that the government had "no information" of any possible foreign involvement when in fact the government did have precisely such "information." Subsequently, this statement was amended to mean "no credible information." D.E. 2330 at 6. The government has simply denied, through the prosecution, the existence of any such information of a prior warning.

In a public pleading filed on November 7, 1996 (D.E. 2475), the prosecution, acting on behalf of the government, referred to the Defendant's request for such information of a prior warning as "outrageous." (D.E. 2475 at 6). Indeed, in the same pleading, the government went so far as to claim that ATF agents had been injured in the explosion and that one of them had actually suffered a free fall in an elevator in the Murrah Building. These statements were made on the public record and highlighted considerably in the press. In fact, the representation was false and untrue. Information furnished to the defense by the prosecution from the government long before November 7, 1996, indicates that the government's own investigation and interviews with the elevator engineer show that the elevator simply did not fall.

>From information furnished to the defense from its own investigation, from national reporters for ABC and NBC television news, from Time magazine, and from certain material furnished by the government, it is clear that the ATF had an informant, Carol Howe, the daughter of a very prominent and successful Tulsa, Oklahoma, couple who for a period of time possessed beliefs in racial superiority of Caucasians. This belief was apparently initially formed as a result of a confrontation Ms. Howe had as a young woman with several young black males which required her, for her safety, to jump off the roof of a building and resulted in fractures or bone breaks in her ankles or legs. D.E. 3313 at 5.

After this incident Ms. Howe gravitated toward the Aryan Nation movement and became a close personal associate of Dennis Mahon, the former Imperial Wizard of the Ku Klux Klan, an individual who has received money since 1990 from Iraq, who has traveled to Germany to recruit for the Ku Klux Klan, who has been barred from the United Kingdom and Canada as an "international terrorist" (according to Mr. Mahon's own statement), and who has made a number of statements of the most extreme political nature about the necessity and desirability of overthrowing the government of the United States "by any means." D.E. 3313 at 5. In addition, Mr. Mahon is a former leader in the White Aryan Resistance, sometimes identified as No. 3 in its leadership, and apparently was a member of the Order.

Although it was not quite clear to counsel when Ms. Howe became an informant for the ATF, she has indicated that her relationship with Mr. Mahon became troublesome, she sought a protective order against him (D.E. 3313 (Exhibit "B"), and may have at the same time been recruited as an informant by the ATF and paid approximately $120 a week. The government has since verified that Ms. Howe became a registered informant for the Bureau of Alcohol, Tobacco and Firearms (ATF) in August, 1994, and continued her work on a regular basis until she was, according to the government, terminated on March 27, 1995. D.E. 3360 at 34. At that time, the ATF agent requested she be terminated as an informant because it was concerned about her state of emotional distress and her "loyalty" to the ATF. But even this representation by government counsel was simply not true.

Government counsel admitted on March 10, 1997--after stating on January 9, 1997, that Carol Howe had ceased being an informant in March 1995--that Ms. Howe, although removed as an ATF informant on March 27, contacted the ATF on April 20, 1995, concerning her knowledge of the Oklahoma City bombing, ATF requested permission to reactivate her as an informant, and she was sent back to Elohim City to follow up the information she provided. D.E. 3410 (Pretrial Hearing--Sealed--Not Provided to Defendant Nichols at 32). (Information here only summarized--please see full sealed transcript).

On the morning of February 13, 1997, defense counsel was informed that the FBI would deliver to his office, shortly after 1:30 that day, reports on Ms. Howe's activities prepared by Agent Angela Finley. At approximately 1:30 p.m., two agents arrived and appeared with what were represented to be summary reports of Ms. Howe's activities for the ATF prepared by Agent Finley, her case handler. Accompanying the file was a letter from government counsel with one attachment which counsel was permitted to keep. A copy of the letter from government counsel and the attachment are found at D.E. 3313 (Exhibit "C").

This delivery to counsel's office followed a 7:30 a.m. telephone call to counsel that morning by one of the prosecutors who advised counsel that the government had learned that Carol Howe was going to conduct a press conference in Denver that afternoon. Counsel for Mr. McVeigh had no such information and expressed to the prosecutor that he did not believe that such a press conference was in the works because Ms. Howe was in Austin, Texas, and her attorney, Mr. Smallwood, was in a first degree murder trial in Tulsa, Oklahoma.

The undersigned counsel read the reports which were prepared and signed by Angela Finley, and on some occasions by others in the ATF Office in Tulsa. Incidently [sic], counsel noted that Ms. Finley had absolutely no difficulty spelling correctly the proper nouns which constitute the names Dennis Mahon, Andreas Strassmeir, Elohim City or Reverend Robert Millar, all of which, were misspelled in the report provided to counsel. D.E. 3313 (Exhibit "D").

This report reflects the interview that Ms. Finley and FBI Special Agent James R. Blanchard, II, had with Carol Howe on April 21, 1995. While it may be claimed that Mr. Blanchard was "inexperienced" and Ms. Finley did not actually see the finished memorandum, such statement or claim, if made, credulity lacks. Ms. Finley was one of the two interviewing agents, and undoubtedly was furnished a draft of the memorandum of interview and could easily have corrected it. We believe that this information was deliberately misspelled in order to disguise or hide it from a computer search by the defense counsel. In fact, according to the representations of government counsel to the district court on January 29, 1997 (Tr. at 66), the prosecutors themselves could not find the information because of the misspelling.

We do not credit these explanations. We note that when the district court directed the government to respond to our request for information on Mr. Strassmeir and Mr. Mahon, the government filed numerous 302's and other material, but the Insert prepared by Blanchard-Finley (which arguably constitutes the most significant information concerning Strassmeir and Mahon) was not included in the material filed under seal with the district court on October 18, 1996. See D.E. 2332. Considering the fact that the identity of Strassmeir and Mahon and the Defendant's suspicions of them have been the subject of numerous filings in this case, the failure of every government prosecutor and every case agent who worked on this file to remember the April 21 interview simply is not credible, but if it is credible, it once again suggests that the Defendant is being penalized either because of the government's willful or negligent withholding of information. If government prosecutors knew of the April 21 memo and failed to disclose it, after being directed to by the district court, the withholding of it was willful. If, after the district court specifically ordered a full response, and the government could not find it, then it was negligent in not knowing its own material which concerns a subject not of a casual interest, but of direct relationship to the case and the defense Brady request.

The reports which counsel read are not the reports of Carol Howe, but purport to represent monthly summaries prepared by Agent Finley of some of the work of Carol Howe and some of the things that she reported. The last report is February 1995, but there is no December 1994 report. Although these limited number of documents do not specifically reflect the precise information that Carol Howe furnished on April 21, they come very close to suggesting it. In her April 21, 1995, memorandum, Ms. Howe discussed Andreas Strassmeir, Dennis Mahon and Elohim City at some length and specifically mentioned that Dennis Mahon had talked to her about bombing either an IRS building, the Federal Building in Tulsa, or the "Federal Building" in Oklahoma City, presumably a reference to the Alfred P. Murrah Building, although it could arguably have included the old Post Office building and the United States Courthouse, both of which are in the "Federal Complex" in downtown Oklahoma City. All of the allegations she has repeated in subsequent interviews.

On the other hand, the Insert does not state that Ms. Howe did not furnish this information prior to April 19. The Insert purports to reflect what Ms. Howe was telling the FBI was her knowledge on April 21. Whether she told the FBI about her previous contacts with the ATF is not immediately clear from official documents, but presumably she did because she is identified as a "confidential informant" for the ATF. Of course, at that moment in the investigation, and with Ms. Finley present in the room, the FBI agent could have failed to ask the question about prior notice by Ms. Howe, or if he asked the question, simply not put down her answer on the self-justified ground that he was not investigating whether the ATF was negligent, but whether Strassmeir and Mahon had a role in the bombing.

However, in the reports which counsel read, Ms. Howe did tell the ATF, according to Finley's summary, that she had been in and out of Elohim City on a number of occasions, that Elohim City residents, including Mahon and Strassmeir, were apparently engaged in serious violations of federal weapons law, that there was a plan to place a bomb on the front door of a Tulsa business by Mahon, and that Mahon himself, together with Strassmeir, had talked about making bombs and the necessity to take action against the federal government. According to these summary reports, Strassmeir specifically told Howe that he was interested in bombing or blowing up federal buildings, installations or property. Again we stress this information was given to the government prior to April 19, 1995, because it is in reports dated prior to that day. The accuracy of the information has been confirmed in whole or part from three media sources.

In addition, Howe has described the Reverend Millar as preaching continually the necessity of a "Holy War" against the federal government and Howe described that the residents at Elohim City were very familiar with what had happened at Waco, they admired David Koresh, and that copies of the Turner Diaries[16] were readily available. Summarized at D.E. 3313 at 10, but repeated in other interviews.

[CONTINUED IN PART ELEVEN]

[11] See Scheduling and Rule 17.1 Conference--Sealed, January 29, 1997, at 60, 68.

[12] Defense counsel is very suspicious of the multiple misspellings in this FBI Insert. The Insert was generated as a result of an interview of Carol Howe in Oklahoma City on April 21, 1995 conducted by Special Agent of the FBI, James R. Blanchard, II, and Agent of the ATF, Angela Finley. It is difficult to conceive how Agent Finley could participate in an interview which would lead to the drafting of a memorandum in which every material name (Matron, Strassmeir, Millar, and Elohim City) would be misspelled because, according to Ms. Howe, Agent Finley was her "case handler" and specifically knew that Howe's assignment was to infiltrate Elohim City and become acquainted with Strassmeir, Mahon, Millar and others. If the Insert was prepared without it being reviewed by the person who also participated in the interview, another law enforcement officer, the process was incredibly sloppy and unprofessional. If she did review the Insert, the more likely scenario, she would instantly have known that all of the names were misspelled. Defense counsel believes they purposefully were misspelled. It is difficult to imagine how a Special Agent of the FBI can misspell "Matron" and "Miller."

The fact that prosecutors themselves could not find the insert is not surprising. There may have been a deliberate effort to deceive them and keep from them information, which, in their professional responsibilities, they would know had been turned over to the defense. This was the danger of the so-called "open file" discovery. Everything was given to the defense, the government argued, so thus if anything turned up which embarrassed the government's case, it could always claim it had been "furnished" to the defense (as indeed government counsel often did), but if it is furnished amidst thousands and tens of thousands of sheets of paper so that it cannot even be pulled up on a computer search, then the production is meaningless.

The names of Strassmeir and Mahon are hardly strangers to the discovery disputes or to the government. Moreover, it emphasizes the need for court intervention because not even the prosecution can protect itself against efforts of either the FBI or the ATF to obscure and hide information by misidentification.

[13] The Bureau of Alcohol, Tobacco, and Firearms was aware of this information prior to April 19, 1995. Carol Howe has flatly stated the information was provided to the ATF by her and she is satisfied she gave them enough information to alert them to a possible threat. After her FBI interview on April 21, 1995, Howe was reemployed as an ATF informant and sent back to Elohim City.

[14] The petition makes reference to the "White Aryan Resistance of which Dennis is the head in Oklahoma." See D.E. 3313 (Exhibit "B").

[15] The government's denials are carefully circumscribed. In a November 7, 1996, filing (D.E. 2475), the government stated, "Stated simply, neither the BATF nor any other federal agency had any advance knowledge of the deadly bomb that McVeigh delivered to the Murrah Building .... Claims on this point, which he (McVeigh) highlights among 'the most important of all his claims (citation omitted) are unfounded because the prosecution is not withholding anything that even remotely would support such an outrageous charge'." (Emphasis supplied).

Notice how carefully this statement is worded. The government's denial is limited to advance knowledge of "the bomb that McVeigh delivered." The government does not disclaim knowledge of a prior warning from Carol Howe that the Murrah Building was one of three targets that a group of Aryan Nation White Supremacists, members of a terrorist organization at Elohim City, were planning to use in a first strike against the government because Elohim City feared that it would be the next "Waco" and should, in the words of Carol Howe, "strike first."

Moreover, the Court's attention is respectfully called to the fact that after stating the "government's" denial, the proper noun is then shifted so that it is "the prosecution" which is not withholding anything .... Whether the prosecution is withholding it or not is immaterial. What is clear is that the government is withholding it.

[16] The government has repeatedly alleged that the Turner Diaries contained the blue print for the bombing of the Murrah Building.