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United States v. McVeigh - 153 F.3d 1166 (10th Cir. 1998)


A trial court's admission of inadmissible evidence will disturb a defendant's conviction only if the error is not harmless. The erroneous admission of evidence is harmless unless it had a substantial influence on the outcome or leaves one in grave doubt as to whether it had such an effect. Further, cautionary instructions are ordinarily sufficient to cure any alleged prejudice to the defendant. The government bears the burden of proving the harmlessness of any error.


Defendant-appellant Timothy J. McVeigh was tried, convicted, and sentenced to death on 11 counts stemming from the bombing of the Alfred P. Murrah Federal Building ("Murrah Building") in Oklahoma City, Oklahoma, that resulted in the deaths of 168 people. McVeigh appealed his conviction and sentence on the grounds that (A) pre-trial publicity unfairly prejudiced him, (B) juror misconduct precluded his right to a fair trial, (C) the district court erred by excluding evidence that someone else may have been guilty, (D) the district court improperly instructed the jury on the charged offenses, (E) the district court erred by admitting victim impact testimony during the guilt phase of trial, (F) the district court did not allow him to conduct adequate voir dire to discover juror bias as to sentencing, (G) the district court erred by excluding mitigating evidence during the penalty phase that someone else may have been involved in the bombing, (H) the district court erred by excluding mitigating evidence during the penalty phase showing the reasonableness of McVeigh's beliefs with regard to events at the Branch Davidian compound in Waco, Texas, and (I) the victim impact testimony admitted during the penalty phase produced a sentence based on emotion rather than reason.


Did the district court err in excluding as "not sufficiently relevant" both the proffered testimony from an undercover government informant at Elohim City, and other proffered evidence that criminal defendant McVeigh argued would have shown the government suspended its independent investigation of Elohim City in the wake of McVeigh's arrest?




The United States Court of Appeals held that the district court failed to make an explicit record of its balancing of the Rule 403 factors. However, the Court may conduct a de novo balancing because the record contains a colloquy between the court and counsel that sheds considerable light on how the district court viewed the evidence. The Court concluded that even if there was probative value to defendant-appellant McVeigh's proffered evidence, it was "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Thus, there was no error in excluding such evidence. Accordingly, the Court affirmed the district court's decision convicting defendant on 11 counts and sentencing him to death.

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