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| The 1982 Tylenol Murders  September 27, 1982
Local delivery trucks rolled out of Melrose Park distribution centers on Monday morning, September 27, 1982. The trucks were loaded with various sundries, healthcare products and prescription and OTC drugs destined for local food and drug stores. At least one truck was carrying bottles of Extra Strength Tylenol capsules laced with cyanide. On Monday evening and Tuesday morning, the shelves of Chicago area grocery and drug stores were restocked with bottles of Extra Strength Tylenol from Monday's shipment. The official story is that it was some madman who on Tuesday, September 28, drove haphazardly through the northwest suburbs of Chicago, took eight Tylenol bottles off the shelves of randomly selected stores and then replaced an arbitrary number of Extra-Strength Tylenol capsules in each bottle with cyanide laced Tylenol capsules.
The official story is a fraud. The Tylenol killers did not indiscriminately fill a random number of Tylenol capsules with cyanide after the Tylenol had been delivered to Chicago-area stores. The killer filled hundreds or probably thousands of capsules with cyanide before the capsules were packaged and shipped to local retailers. It’s impossible to know the true extent of the Tylenol tampering. Many consumers simply flushed their Tylenol down the toilet as was initially recommended by Illinois Attorney General Tyrone Fahner. The vast majority of the Tylenol capsules turned in by consumers were burned by Johnson & Johnson without ever having been inspected. The Tylenol capsules responsible for the deaths of at least seven Chicago-area residents in 1982 were not poisoned on the shelves of local retail stores; they were poisoned during distribution while under the control of Johnson & Johnson or one of their distributors. Any suggestion that officials at the highest level of Johnson & Johnson and the FDA do not know this to be true is preposterous. 
September 29, 1982
Just before sunrise on Wednesday, September 29, in the Chicago suburb of Elk Grove Village, one cyanide laced Tylenol capsule passed the lips of 12 year-old Mary Kellerman. Within fifteen hours ten more poisoned pills would be swallowed by six other Chicago area residents. All seven died. On the same day of the poisonings, the best detective work of the entire Tylenol murders investigation was conducted by four amateur sleuths. It was a local nurse, two off-duty firemen and a paramedic who linked several unexplained deaths to Tylenol. The bottles of Extra-Strength Tylenol found at the homes of four victims were sent Wednesday evening to the Cook County Medical Examiners' office for testing. September 30, 1982 Before dawn on Thursday, Cook County Medical Examiner Michael Schaffer began his inspection of some of the Tylenol capsules. He quickly determined that they contained cyanide. Officials held a press conference the same morning to confirm that the deaths of at least three people were caused by cyanide laced Extra-Strength Tylenol capsules. By Saturday, all seven who'd suddenly collapsed after ingesting Tylenol capsules on Wednesday were confirmed to have died from cyanide poisoning. Johnson & Johnson executives watched as overnight their top revenue generator dropped from a 35% share of the over-the-counter (OTC) analgesic market to just 7%. Led by CEO James Burke, J&J executives immediately went to work to mitigate the damage. They greased the cogs of Johnson & Johnson's mighty marketing machine and manufactured a Tylenol promotional campaign that within one year would recapture 29% of an increasingly competitive market. J&J spent an estimated $300 million to reclaim Tylenol's market position after the 1982 murders; triple the $100 Million it cost J&J to recall the Tylenol; six times J&J's actual cost after taking a $50 million tax write-off. 
Johnson & Johnson’s handling of the Tylenol crisis has been ingrained into the psyche of American consumers as the gold standard of crisis management. It’s a story told countless times by J&J executives, mainstream media, and academia. The story of the Tylenol crisis, which is widely accepted as a model of righteous corporate behavior to which all companies should aspire, is in fact a fable that fails to recognize the true story of deceit, corruption and fraud against American consumers and the Tylenol Killer’s victims. The campaign to save Tylenol was tremendously successful; that fact is beyond dispute. J&J’s revival of the Tylenol brand is referenced in almost every article ever written about crisis management. A case study of the "Tylenol crisis" is included in the business curriculum of universities around the world. Nevertheless, the manner in which executives at Johnson & Johnson handled the Tylenol crisis was in no way ethical.
Pundits who openly criticized J&J’s handling of the Tylenol murders crisis are a rare breed. What little criticism was levied against Johnson & Johnson came long after the crisis was over, and after Tylenol had regained its dominant position in the OTC analgesic market. Crisis expert James Lukaszewski said in March 2001 that the Tylenol story as commonly told is a “fairy tale". "The astounding part,” he said, “is that Burke learned of the tragedy in Chicago on Thursday, September 30, and called a staff meeting about the tampering for Monday, October 4.”
Counselor Helio Fred Garcia, of Clark & Weinstock, called the Tylenol story “a myth.” Garcia said the myth of Tylenol is that the company reacted within 24 hours. Perpetuating this myth was the 1999 movie “The Insider” in which actor Russell Crowe says Burke “just pulled Tylenol off the shelves in every store right across America instantly.” On saying the word “instantly,” Crowe made a sweeping motion with his right arm. Days after most retailers had already removed Tylenol from their shelves; Johnson & Johnson finally announced a recall of all Tylenol capsules.
The few experts who criticized Johnson & Johnson’s handling of the Tylenol crisis did so without understanding the extent of J&J's malfeasance. Nobody outside the inner circle of J&J executives understands just how diabolical their deceit really was. During my seven years at Johnson & Johnson I wasn’t invited into its inner circle, so I broke through the shell of its “credo values” facade and dug into the rotting nucleus inside. I learned all about Johnson & Johnson’s dirty secrets and how they repeatedly use the same corrupt business practices to market their products. The cover-up of the Tylenol murders was one component of a marketing campaign like all others used by Johnson & Johnson to promote the benefits of its products while hiding the dangers.
Johnson & Johnson’s “handling” of the Tylenol crisis was a well managed campaign of deception that diverted suspicion for the Tylenol murders away from Johnson & Johnson and its customers. Almost nothing you’ve ever heard about the Tylenol murders is supported by the evidence. Acetaminophen on left; Cyanide on right THE TYLENOL MURDERS TIMELINE September 22, 1982 Tylenol and the Monsanto Corporation On September 22, 1982, seven days before the Tylenol murders, the Monsanto Corporation submitted a patent application for a process of tableting acetaminophen (Tylenol's active ingredient). The patent described a process to make Tylenol/acetaminophen tablets more cheaply and efficiently than current methods. A Patent was issued on March 27, 1984. The Monsanto employee listed as the inventor is Stephen H. Vogel of Collinsville, Illinois. Arthur Hull Hayes, the FDA Commissioner form 1981 to 1983 had a rather incestuous relationship with Monsanto and G.D. Searle (Monsanto bought G.D. Searle - maker of aspartame - in 1984). A free flowing granulation, comprising a high concentration of acetaminophen and a low level of excipient, including ground cross-linked sodium carboxymethylcellulose fiber, allows the manufacture of analgesic tablets by direct compression. The method provides improvements in manufacturing economics and tablet properties. SUMMARY OF THE INVENTION It is an object of this invention to provide a formulation comprising acetaminophen which is directly compressible to tablets. It is a further object of this invention to provide an acetaminophen tablet which is prepared by a direct compression method. The uniqueness of the acetaminophen granulations of the present invention is due to the following considerations: (1) all excipients are incorporated in the granulation. No further addition of excipients is necessary for tableting. (2) thegranulation contains a high, i.e. 80-90 wt. %, concentration of active analgesic agent, i.e. acetaminophen and (3) the granulation requires no pre-processing prior to tableting. In general, the method of preparing the acetaminophen granulation of the invention comprises charging acetaminophen powder and other ingredients to be used in the tablet to a fluidizer, fluidizing the mixture with warm air while spraying the mixture with an aqueous starch slurry, drying the mixture, adding lubricant and mixing the ingredients to uniformity. Typically, prior acetaminophen granulations used for preparing tablets by the wet granulation method contained approximately 25-40% excipients. Commonly used excipients include binders such as gelatin, polyvinylpyrrolidone, and gelatinized starch, disintegrants such as corn starch and microcrystalline cellulose, glidants such as silica, talc, and corn starch, and lubricants such as stearic acid and stearate salts, e.g. magnesium stearate. In contrast to the prior methods of tableting acetaminophen granulations, the process and granulation of the present invention allows the preparation of acetaminophen tablets containing 80-90% acetaminophen.
Wednesday, September 29, 1982 Seven Chicago-area residents swallowed Extra-Strength Tylenol capsules that contained lethal doses of cyanide. Thursday, September 30, 1982
Johnson & Johnson executives learned about the cyanide laced Tylenol related deaths on Thursday morning. James Burke told David Collins, McNeil Consumer Products Chairman and former General Counsel, to take a lawyer, a public relations aide and a security person and fly immediately to McNeil, 60 miles away, in Fort Washington, PA to handle things from there. J&J spokesperson Robert Andrews and two other Johnson & Johnson officials took a corporate jet to Chicago and met for an hour and a half with Elk Grove Village detectives and evidence technicians. Robert Andrews handled the media from McNeil; Larry Foster was in charge at J&J headquarters. Andrews announced on Thursday evening that J&J had "launched an investigation this morning to track down the capsules." By the end of the day, Johnson & Johnson had dispatched scientific, security and public relations personnel to Chicago by corporate jet. Burke formed an Emergency Strategy Group, which met twice a day to make decisions on the rapidly developing situation. The strategy group included David Clare, J&J President; Wayne Nelson, Company Group Chairman; Arthur Quilty, Executive Committee member; David E Collins, Chairman of McNeil, Lawrence G. Foster, Corporate Vice President of Public Relations and George Frazza; General Counsel. Illinois Governor James Thompson put Illinois Attorney General Tyrone Fahner in charge of the task force investigating the Tylenol murders. An estimated 200 million Extra Strength Tylenol capsules were in the marketplace; either in retail stores or distribution centers. Johnson & Johnson announced a recall of 4.7 million capsules in 93,000 bottles bearing the code number MC2880 that had been manufactured at the company's Fort Washington, Pa., plant and distributed in August to 34 states: all of those east of the Mississippi River and in North Dakota, South Dakota, Nebraska and part of Wyoming. The recall represented 2.35% of Extra Strength Tylenol on the market. Friday, October 1, 1982 Authorities were in the process of compiling lists of all employees who might have come in contact with the Tylenol along its route to the store shelves, as well as any disgruntled or recently fired employees. Illinois Attorney General Tyrone Fahner said "it seems more and more likely that the tampering was at the lower level, either at the stores or right before It got there," rather than at a central distribution or manufacturing point. Some of the contaminated capsules were manufactured in Texas, and others in Pennsylvania. At this point, the investigation was on the right track. Detectives were questioning employees and anyone who had access to Tylenol in the distribution channel. Tyrone Fahner was working under the assumption that the Tylenol may very well have been contaminated just before it had been delivered to the local stores. But over the weekend, Fahner changed course. With Johnson & Johnson and the FDA flooding the media with misinformation intended to focus investigators and the public on a fictional madman stalking local retail stores, Fahner stopped talking about tampering in the distribution channel. Friday marked the end of any logical analysis of physical evidence, and the beginning of an irrational investigation centered on a non-existent madman and an absurd modus operandi.
Johnson & Johnson Vice President Lawrence G. Foster said "We believe it (the contamination) occurred after it left the manufacturer. We believe it happened somewhere in the distribution or at the point of sale." Even Foster said the tampering may have occured during distribution. But this statement was made on Friday before he understood the company line. He would not make this mistake again.
Foster said Tylenol goes to more than 100 distribution centers in the area, which are owned by drugstore chains or Independent distributors. Johnson & Johnson (Larry Foster) stated that cyanide is not used in the production of Tylenol. That was a lie.
Elsie Behmer, director of communications for McNeil Consumer Products, said, "We were clean," as far as the possibility of the Tylenol being sabotaged at the plant. She said some, of the MC 2880 batch was still at the plant and tests showed that it was uncontaminated. She added that the company does not work with cyanide* and Tylenol is the only product produced at the plant. Much of it is done by machine, thus lessening the possibility of employee sabotage, she said. *That was another lie. The possibility of factory error was raised Saturday when Stein revealed McNeil Consumer Products Co. regularly uses cyanide in quality control tests at the plant where it manufactures Extra-Strength Tylenol. A spokesman for the company confirmed Saturday that cyanide is used in "routine testing" of raw materials by McNeil.
Partial Recall J&J recalled another 8.5 million capsules in 171,000 bottles bearing the code number 1910MD, which were manufactured at Round Rock, TX, and distributed to states throughout the West and in the Chicago area. A bottle with that code was linked to one of the deaths. Like the FDA, McNeil officials urged consumers across the country to discontinue using the capsules pending further investigation of the case. While Extra-Strength Tylenol comes in various forms, only capsules were being recalled; the warnings did not apply to chewable tablets, tablets, drops and an ''alixir'' form for children. Johnson & Johnson posted a $100,000 reward for information leading to the arrest and conviction of the person or persons responsible for tampering with the drug. U.S. Attorney Dan K. Webb said his office had launched an inquiry. "I believe there are potential federal violations depending on the evidence developed," he said. "I have been in discussion with the Food and Drug Administration regarding adulterated drug statutes and have appointed a lawyer to begin an investigation." Fahner said the Cook County Medical Examiner had been asked to review deaths in recent months to determine if there had been any other deaths related to Tylenol. Friday Evening
Paula Prince, a flight attendant who took Extra-Strength Tylenol before news spread that some capsules contained cyanide, was found dead in her apartment on Friday evening. She was the seventh and final victim linked to the cyanide laced Tylenol. The body of Paula Prince, a 35-year old United Airlines flight attendant, was found only a few steps from a 24-capsule bottle of Tylenol she had purchased at a Walgreen's Drug Store on the city's Near North Side.
"They took the Tylenol off the shelves yesterday (Thursday)," said Ray Roberts, a stock boy at the store where the Tylenol was purchased. About 1 1/2 cartons of the drug remained in the stockroom, and no police or health inspectors had visited the store, be said. It was the first time the deadly poison had been traced to anything other than the 50-capsule Extra-Strength Tylenol bottle. The newly discovered bottle also carried a different lot number from two batches singled out for a nationwide recall by the FDA. Officials had previously recalled bottleswith the tot numbers MC2880 and 1910MD, The red-and-white bottle found in the bathroom of Miss Prince's seventh-floor apartment carried the number 1801MA.
The body of Paula Prince is removed from her Chicago northside apartment on Friday evening, October 1, 1982 Fahner said that 26 FBI agents had been called In to join more than 100 Investigators from the department of law enforcement, Cook County state's attorney's office and Arlington Heights and Elk Grove Village police departments. Poison was found in three new batches of Tylenol J&J had recalled the 94,000 bottles marked with the batch number MC2880 on Thursday, but Friday the batches 1910MD, LM1665 and MC2884 were added to the danger list. Tylenol from lot 1910MD was recalled on Friday. On Saturday, lots LM1665 and MC2884 mysteriously disappeared from the danger list.
The FDA said late Friday it also found seven cyanide-poisoned capsules in a bottle removed from a drugstore in Schaumburg, IL, and seven more capsules from the bottle are suspect. Tyrone Fahner, The Daily Herald and New York Times all said that two unsold bottles of cyanide laced Tylenol capsules were removed from the Osco store in Schaumburg. On Saturday, the number of bottles of poisoned Tylenol removed from the Osco store was inexplicably changed from two to one.
Tylenol Hotlines McNeil has set up a telephone number with recorded information, 1-900-210-3000, and another number, 1-800-232-2222, to call for answers to further questions. The police task force is asking anyone with information about the tampering to call 827-9770. Anyone who has Extra-Strength Tylenol is asked to put it In a bag, attach his name, address, approximate purchase date and place of purchase to the bag and turn It over to the local police department.
Illinois Lottery: Tylenol lot number sells out News reports Friday warning against the use of any Extra-Strength Tylenol capsules from lot MC 2880 were enough to sell out number "2880" in the Lottery's Pick-4 game. That number did not win. Number 0988 did. At 2:10 p.m, Friday the Lottery sold its maximum $5 million liability for the number. Saturday, October 2, 1982 Fahner Press Conference Investigators broadened the search for a "madman" who filled Extra-Strength Tylenol capsules with cyanide as a seventh poisoning death was confirmed Saturday and frightened residents returned thousands of bottles of Tylenol products to local police departments. Investigators returned Saturday to the stores where the contaminated bottles were purchased, including Jewel Food Stores in Arlington Heights and Elk Grove Village, to ask employees whether they recall any customers who appeared suspicious-looking or un-happy. Authorities also are looking for disgruntled employees "anywhere along the distribution chain" from the point where Tylenol enters Illinois, said Fanner, who Is directing the task force of 142 local, state and federal Investigators. Authorities virtually have ruled out the possibility that the capsules became contaminated with cyanide at the factory, he said. Medical Examiner to Reopen Cases Medical Examiner Robert Stein said his office will begin looking into sudden deaths reported since Sept. 1 and possibly a week earlier — just about the time batches of the Extra-Strength Tylenol found to have been adulterated would have reached shelves in the Chicago market. The medical examiner's office will retest frozen blood samples for cyanide In cases in which the victim died suddenly and initial autopsy results showed the presence of Tylenol in the bloodstream, Stein said. All of the Tylenol was removed from the capsules and replaced with cyanide. There wouldn't have been any Tylenol in the bloodstream of anyone who swallowed only adulterated capsules. As the following statement from Stein shows; he seemed to know this, but failed to connect the dots. Stein said (also on Saturday) of the 16 cyanide-filled capsules his office examined, all had been completely emptied of the pain-reliever and refilled with the poison.
Cyanidel Laced Tylenol recovered from Osco Drug Store Tyrone Fanner told reporters that the first poisoned capsules to turn up as a result of the massive product recall were discovered in at least two unpurchased bottles of Tylenol confiscated from the shelves of the Osco Drug Store in Woodfield Shopping Center in Schaumburg. The bottles recovered from the Woodfield store are "particularly helpful because they had not been sold and (the boxes) may provide some fingerprints," Fahner said. From the October 5 Daily Herald: Herbert Aigner, village president in Schaumburg, where two bottles of poisoned Tylenol were found at the Woodfield Mall, said he would support a new state law that would discourage tampering.
It seems clear that at least two bottles of contaminated Tylenol came from the Osco Drug store at the Woodfield Mall in Schaumburg. But all future reports* regarding the cyanide laced Tylenol found at Osco Drugs either excluded the number of contaminated bottles or claimed that just one unpurchased bottle of contaminated Tylenol came from the Osco Drug store. * The New York Times and Daily Herald newspapers continued to report that two bottles of cyanide laced Tylenol had been pulled off the shleves of the Osco drugstore in Woodfield mall.
No official ever publically revised the number of bottles found at the Osco store, so its unclear why the bottle count was changed. But a day after Fahner's initial statement regarding the contaminated Tylenol from Osco Drugs, he said that authorities are examining four additional lot numbers as a result of the discovery of the contaminated bottles at the Osco store in Schaumburg. The contradictory information regarding the adulterated Tylenol removed from Osco Drugs is one example of the never ending string of ploys used to hide the true extent of the tamperings. Jewel & Osco Larry Foster said the bottles purchased at the Jewel and Osco stores probably had been shipped directly from Pennsylvania to Jewel's warehouse in Franklin Park, and then directly to the stores. Sunday, October 3, 1982 Kane County Sheriffs Police said they found several hundred Extra Strength Tylenol capsules in a parking lot near a motel on Interstate 90 just outside Elgin at 2:32 a.m. Tuesday. A couple of bottles, boxes and loose pills were scattered on the ground, Detective Thomas Atchison said. At the time, police thought the capsules were broken open and the Tylenol removed to be used to cut illegal drugs, Atchison said. Two days later, after the cyanide deaths were reported, police returned to the scene, but the boxes were gone. Fahner Press Conference In an interview held on Sunday evening, Tyrone Fahner said, "We'll get him one way or the other. Even nuts make mistakes. And if it's some sort of screwball cult, they'll turn on each other for the money." Agents took to the streets early Sunday morning. They concentrated on again interviewing store employees and bereaved family members, who were initially interviewed by local police officers who had thought they were investigating only a health problem, not a pattern of homicides. The painstaking research involves testing the growing flow of Tylenol capsules, labeled by date and point of purchase, which are being turned in at collection sites at the urging of Mayor Jane M. Byrne and other officials. Officials from FDA and Illinois health agencies inspected Tylenol capsules that were turned into local authorities. They did not, for the most part, inspect the bottles that were removed from local stores. Those bottles were picked up by J&J sales reps and then destroyed by Johnson & Johnson.
Packing cases were being examined for fingerprints and other evidence indicating who touched them. Detectives were also reconstructing the delivery routes, [checking] more than 100 Chicago-area storage sites for Tylenol products and are checking personnel files for potential suspects. Mayor Byrne ordered the removal of all Tylenol products from Chicago stores.
''From everything we know so far,'' said Tyrone Fahner, ''the tampering occurred once the drugs arrived in Illinois.'' Investigators believe that the capsules, which were manufactured last spring and distributed to stores in August, were carefully contaminated shortly before their purchase. Where was the Tylenol stored for the approximately 5 months before it was shipped to the Franklin Park warehouse?
This theory is based on the fact that the potassium cyanide found in the capsules is a corrosive that would soon destroy the capsule's gelatin shell. To detect approximately when the killer laced the capsules, Michael I. Schaffer, the Cook County Medical Examiner's chief toxicologist, duplicated the poison formula Friday and placed some in empty Tylenol capsules for timing.
Investigators might then be able to trace the original contaminated capsules back to a precise point of time in their distribution. But they also note that given the amount of undetected shoplifting these days, someone could remove the bottles, replace the Tylenol medicine in a few capsules with cyanide and then surreptitiously return the contaminated bottles to a store shelf. Dr. Stein, the county Medical Examiner, said his office was checking all ''sudden, unexpected deaths'' since mid-August in Cook County, which includes the city of Chicago and some adjacent suburbs. Chicago policeman Albert Frigo, of the 23rd district, sorts through envelopes which contain Tylenol bottles turned into the police by area residents in an effort to remove all Tylenol from circulation in the Chicago area Saturday, Oct. 3, 1982. (AP Photo/John Swart) Monday, October 4, 1982 A Johnson & Jonson spokesman announced that the company had stopped the manufacturing and shipment of Tylenol capsules nationwide. Tuesday, October 5, 1982 Johnson & Johnson announced they were considering recalling all Tylenol capsules to repackage them. After learning Tuesday afternoon that an Oroville, CA man had become seriously from strychine laced Extra-Strength Tylenol capsules, Johnson & Johnson asked retailers nationwide to discontinue the sale of all Tylenol capsules. The Food and Drug Administration ordered retailers nationwide to discontinue the sale of all Tylenol pills following the discovery of strychnine-poisoned pills in California. "Neither the FDA nor the industry can guarantee protection against a single individual bent on committing such a terrible act as we have all witnessed in Chicago," said FDA Commissioner Arthur Hayes. Cook County Chief Toxicololigist Michael Schaffer inspected J&J's McNeil manufacturing plant in Fort Washington, PA. Schaffer reported there was no evidence of factory contamination. Reporters were told that Johnson & Johnson has hired a Northbrook private detective agency to aid In the probe, but denied a lack of confidence in the massive investigation underway In Chicago. "We're just trying to do everything we can thing of," a company spokesman said. "We think the law enforcement people have done an excellent job."
Fahner said authorities had not yet received a shipment of Tylenol capsules found last week by Kane County Sheriff's deputies. The sheriff's department had sent the capsules by certified mail to Chicago for testing. Wayne Nelson, J&J Company Group Chairman, stated that he believes the poisoning was a deliberate attempt to sabotage the company and clear-cut murder. It was noted in national newscasts that the Tylenol murders occurred during Proprietary Association's meeting with the FDA to discuss making new packages tamper-proof. Wednesday, October 6, 1982 Postal officials in Park Ridge ordered mail carriers to deliver free samples of Extra-Strength Tylenol to homes in the Northwest suburb, despite a stop order on the mailing from Washington, but after 80 were delivered, the local postmen were told to stop. The FBI is looking into the incident. Postal officials In Washington Issued an order Oct. 1 to return all the Tylenol samples to McNeil Consumer Products Co , the manufacturer. About 350,000 free samples were mailed before the Chicago deaths. Mrs. Helen Tarasiewicz, mother of Tylenol cyanide victim Theresa Tarasiewicz Janus, weeps over the casket containing her daughter's body during graveside services at Maryhill Cemetery in Chicago Tuesday, Oct. 6 1982. Theresa, her husband Stanley Janus and Stanley's brother Adam Janus all poisoned by cyanide from the same Tylenol bottle, were buried Tuesday. (AP Photo/Charles Knoblock) 
Thursday, October 7, 1982 Chicago Police Superintendant Brzeczek downplayed the importance of the eight or nine suspects cited by Fahner, saying, "I just don't see any connection of any tangible evidence to any specific person. We are looking at a lot of people. Probably the motive will never be established until we find out who did it." He said the Chicago police department has 24 detectives and about 15 supervisors working on the case. Johnson & Johnson said that it would destroy all Tylenol capsules from a nationwide recall. Johnson & Johnson acknowledged that the original damage control group at corporate headquarters had evolved into three task forces working on an "image rescue project." Employees of the Chicago City Health Department continue to test Tylenol medication for the presence of deadly cyanide at the Department's lab Wednesday, Oct. 7, 1982. Officials at the department report that city residents are still turning in Tylenol products, almost a week after the first discovery of cyanide that was to killed seven people in metropolitan area. (AP Photo/Charlie Knoblock)  Friday, October 8, 1982 It's reported that investigators are considering a possible airport connection to the murders because five of the seven occurred within 15 miles of O'Hare Airport. Former Illinois Attorney General Willam Scott is released on parole. Tyrone Fahner was appointed Attorney General after Scott had been convicted in March 1980 for Income Tax Evasion. News crews surround the entrance to the Des Plaines, Ill., state police office, the headquarters for the Tylenol killings investigation, on Oct. 8, 1982. Like the anthrax cases, the Tylenol deaths set off an enormous - and enormously difficult - investigation. (AP Photo/John Swart,file) 
Sunday, October 10, 1982 Authorities held a former hospital employee on extortion charges Sunday, saying he threatened to spike Extra-Strength Tylenol capsules with cyanide. They said there was no evidence to link the man to the seven Chicago-area deaths blamed on adulterated Tylenol capsules. FBI spokesman Anthony DiLorenzo said a letter found on a receptionist's desk at Gottlieb Memorial Hospital in the western suburb of Melrose Park warned that patients would be poisoned with cyanide-laced Extra-Strength Tylenol unless Jerome Howard, 20, was paid $8,000. DiLorenzo refused to say how the letter was traced to Howard, who once worked at Gottlieb. Howard was picked up near the hospital's maternity ward, where a ransom packet containing the money had been placed. Howard allegedly claimed in the ransom note he was responsible for the seven deaths. But Illinois Attorney General Tyrone Fahner said the Howard case was "unrelated totally" to the Tylenol deaths, though he said Howard once had been one of the "main suspects." Monday, October 11, 1982 In Philadelphia, the city's -two daily papers reported that the graduate student who died of poisoning by cyanide that was later found in a bottle of Extra-Strength Tylenol capsules had some of the poison in his possession two years ago. William Pascual, 26, who died of cyanide poisoning . in April, had the poison in his possession when he and his wife were living in Hawaii, police sources told the Philadelphia Daily News and Philadelphia Inquirer. The newspapers reported that Mrs. Pascual told police last week that she found some of the cyanide and disposed of it after her husband, a student at the University of Pennsylvania's Wharton School, told her what it was. The circumstances of Pascual's death became the subject of a new police investigation after authorities began checking all cases of cyanide poisoning in the city as a result of the Tylenol-cyanide deaths in Chicago. His death had originally been ruled a suicide. Police tested the contents of a bottle of Extra-Strength Tylenol found in the room where Pascual's body was discovered. Traces of cyanide showed up in the tests. Authorities have said there is no connection between Pascual's death and the deaths of the seven people in Chicago. Friday, October 15, 1982 In Fort Washington, PA, a letter turned up at the offices of McNeil Consumer Products Co., the Johnson & Johnson subsidiary that makes Tylenol; it had been forwarded from the Johnson & Johnson headquarters in New Brunswick, N.J., because the word Tylenol had been written on the envelope. The letter demanded that the manufacturer pay $1 million into a postal box at Continental Illinois National Bank and Trust Co. in Chicago. On Friday, Illinois Attorney General Tyrone Fahner, who is directing a task force of more than 100 federal, state and local investigators, stated flatly that the letter "was not sent by the killer or killers." It apparently pointed to no more than an attempt to capitalize on the Tylenol poisonings. Fahner conceded that the task force, despite conducting more than 1,000 interviews and testing 2 million Tylenol capsules, was "not close to an arrest." Said another investigator: "We are not hot. We are not even warm." Monday, October 18, 1982 All three Networks report that the investigation into the Tylenol poisonings is now said to center on James Lewis, accused of writing an extortion letter to Johnson and Johnson. Tyrone Fahner now claims that Lewis and his wife are prime suspects. Why the 180 degree turn from Friday? On Friday Fahner stated flatly that the letter "was not sent by the killer or killers." According to Fahner, it apparently pointed to no more than an attempt to capitalize on the Tylenol poisonings. But at some point over the weekend Fahner completely reversed himself.
Tuesday, October 19, 1982 Mass hysteria! Lewis sighted at all four corners of the world!! Since Lewis actually was in NYC, the NYC sighting may have been valid. All the others "sightings" were completely bogus. And yet the media reported them all as if they were based in fact. Sunday, October 24, 1982 Johnson & Johnson began an advertising campaign urging consumers to "continue to trust Tylenol." A series of 60-second television messages began Sunday night on all three major commercial networks featuring Dr. Thomas N. Gates, medical director of McNeil Consumer Products, the maker of Tylenol. "We want you to continue to trust Tylenol," the commercials said. Gates said the company eventually will reintroduce Tylenol in tamper-resistant containers. A spokesman for Johnson & Johnson said the television spots would continue through Wednesday. The company will study consumer reaction to the spots before deciding whether to run them after Wednesday, Lawrence G. Foster, Johnson & Johnson vice president for public affairs, said in New Brunswick, N.J. October 25, 1982 Investigators say a relative of one of the Tylenol murder victims has been under surveillance as the "prime suspect" in the seven cyanide killings, the Chicago Sun Times reported today. The newspaper said unidentified investigators believe the suspect — possibly acting with another person — placed cyanide-tainted Extra-Strength Tylenol capsules on the shelves of several stores to give the appearance the relative was killed by a random murderer. Investigators were told the suspect had a violent argument with a relative shortly before the poisonings occurred, the newspaper said. As a result, investigators now believe six of the seven deaths were caused to cover up the one killing, the Sun-Times reported. WMAQ-TV said a man arrested by police two weeks ago as a possible suspect still figured in the investigation. Roger Arnold is reportedly a drinking buddy ot the man questioned by investigators. Arnold has been free on bond pending court proceedings on misdemeanor weapons charges. The station said Arnold's attorney, Thomas Royce, conducted weekend negotiations with Illinois Attorney General Tyrone Fahner, head of the task force investigating the killings. The two reportedly discussed a possible deal, regarding Information Arnold might have. A series of coincidences appear to link Arnold to the slaying. He has told police he had cyanide In his possession until August: he allegedly threatened to kill his estranged wife with cyanide capsules; he worked at a grocery warehouse whlch was the distribution point for some of the poisoned bottles and he works with the father of a cyanide victim, Mary Reiner. When police arrested him they found a cache of weapons, chemistry books and manuals, including one entitled "The Poor Man's James Bond" which detailed how to poison a person with cyanide capsules. The newspaper also said the suspect (Reiner's relative) has been under around-the-clock surveillance since shortly after a task force was organized to investigate the deaths. But one unidentified investigator emphasized this could be another coincidence that doesn't lead to an arrest, the newspaper said. Task force spokesman Morton Friedman had no comment on the report. "All we are doing is continuing our investigation in a regular manner," said police Commander Kenneth Curin. Asked whether anyone had, been identified as a suspect, he said "No." October 30, 1982 Illinois Attorney General Tyrone Fahner asked Lewis to surrender during a news briefing held late Saturday. "If you're innocent as you claim, we'll help you prove your innocence," Fahner said.
The source said there has been no word from the fugitive. "He didn't accept his (Fahner's) offer," the source said. October 31, 1982 It was reported in The Sunday Chicago Tribune that tests "have found widely varying amounts of cyanide in poisoned capsules taken" from the bottles of Extra-Strength Tylenol. November 9, 1982 Johnson & Johnson, parent company of McNeil Consumer Products Co., plans to unveil new tamperresistant packaging for the pain reliever Thursday during a closed-circuit television hookup to 30 cities, Johnson & Johnson Chairman James Burke sent invitations Monday from company headquarters in New Brunswick, N.J., to thousands of reporters around the country. 
In Roanoke, Va., a woman charged with putting rat poison in Comtrex cold capsules told police she did it because of the publicity about the seven Chicago-area deaths, authorities said. "I wanted to show them they made too much fuss over Tylenol and others would do it, too," Delia Lucille Paxton said, according to police. Paxton, 45, had claimed she became ill last month after taking contaminated capsules Investigators said Ms. Paxton was arrested Sunday after she told them she did it. Ms Paxton was to have been held in the Roanoke City Jail in lieu of $10,000 bond, but she co!!apscd and was Utken io Roanoke Memorial Hospital. Shown November 27, 1982 is copy of a letters sent to the Chicago Tribune from "Robert Richardson," identified by investigators as an alias for James Lewis being sought on an extortion charge in connection with the Tylenol poisonings. The letter, received by the Tribune Friday, asserted he is innocent and attacked Illinois Attorney General Tyrone Fahner. It was the second letter the Tribune has received from "Richardson." (AP Photo) 
Kenneth Walton deputy assistant FBI director, speaks to reporters at a press conference in New York, December 14, 1982 after Monday's capture of James W. Lewis, charged with attempting to extort $1 million in the seven Chicago-area Tylenol poisoning deaths. Walton holds a photo of Lewis wife, Leann, 35, whose whereabouts are still unknown. (AP Photo) 
January 13, 1983 Johnson & Johnson files suit to recover cost of Tylenol recall Johnson & Johnson filed a $117 million lawsuit against nine insurance companies to recover part of the cost of recaling all Extra Strength Tylenol capsules. McNeil Inc., a subsidiary of J&J claimed some of the cost of the $100 million recall was covered by product liability and all-risk insurance. Company spokesman Robert Kniffen said the suit was originaly filed in November and the insurance companies were notified then. "We have been awaiting for a responce since then," he said. "When none was forthcoming it was decided to serve them with a suit, which just happened this week." McNeilab, a holding company for McNeil Consumer Products Co., which makes Tylenol, asked the court to uphold its claim for $67.4 million against eight carriers with whom the company had product liability insurance. In addition, it said it sought $50 million for business interruption and loss of profits under an "all-risk" policy underwritten by Affiliated FM Insurance Co. Ultimately, J&J lost its lawsuit to recover these costs.
March 27, 1985 The Sunday Herald According to Fahner, investigators constantly review "where we were, where we're going, what might have been done differently and what could be done now to rethink our thinking." No one has given up, Fahner said in an interview last week. "The time in this situation is not going to be (critical to prosecution), unless it goes on for years — or ends unsolved," he said. "Most of the investigators still don't feel that's the case." Fahner, back in private law practice with a Chicago firm since leaving office in January following defeat at the polls, meets with Zagel about every two weeks to act as a sounding board in the case. "When all this is said and done,... the most interesting story to come out of this — outside of the terrible tragedy — will be that we drummed up every bit of scud walking around. "We found the people...who said they had done it, who had access to chemicals, who acted weird, who potentially were in the right place at the right time. And we did some incredibly fine investigative work... and we came up dry." TYLENOL SLAYINGS REMAIN A MYSTERY SPECIAL TO THE NEW YORK TIMES September 29, 1985 The three-year search for the person who killed seven people by poisoning Extra-Strength Tylenol capsules with cyanide has slowed considerably in recent months. James Zagel, director of the Illinois state police, said officers assigned to the case continued to pursue ''four or five'' areas, but there have been no new leads in six months. Mr. Zagel says the case, ''an antiseptic horror,'' has haunted him for three years. The mystery began Sept. 29, 1982, with the poisoning of Mary Kellerman, a 12-year-old. Within 15 hours six other people had been poisoned: Adam Janus, a postal worker; Stanley Janus, his brother; Theresa Janus, Stanley Janus's wife; Mary Reiner, a telephone company employee; Mary McFarland, a homemaker, and Paula Prince, a flight attendant. All were found to have taken tainted Extra-Strength Tylenol capsules. Within 24 hours of the first death the authorities had directed the public to stop using the product and more than 100 agents were pursuing leads. Three Tainted Bottles Found McNeil Consumer Products, the division of the Johnson & Johnson Company that manufactures Tylenol, took the product off the shelves and offered refunds for those who still had it at home. The company tested 1.5 million bottles for cyanide and found three unopened bottles with tainted capsules. One turned up in a home medicine cabinet and another was found in a drugstore in Schaumburg, a suburb of Chicago. The third was anonymously turned in at a grocery store for the refund. The ensuing investigation, coordinated by the Illinois state police, has produced more than 15,000 pages of reports and a plethora of computerized data. It cost more than $3 million. The inquiry still consumes about 80 hours a week, the equivalent of two full-time investigators, including the time of Mr. Zagel, who says he spends a ''fairly significant portion'' of time on it. ''It takes about three and a half seconds to drop whatever I'm doing anytime anything comes in on this case,'' he says. At the time of the killings, Tylenol was the leading over-the-counter brand of pain remedy in the country. Including the Extra-Strength brand capsules and other varieties, Tylenol had 35 percent of the market and about $500 million in annual sales. After the poisonings, the manufacturer took all 31 million bottle of Tylenol capsules off the market and destroyed them.
Far-Reaching Effects The indirect consequences of the poisonings have been far-reaching: virtually all nonprescription drugs, as well as many other products, are now packaged in tamper-resistant containers. Eighteen months later, after an intense marketing and public relations campaign, Tylenol had recaptured 28 percent of the market. ''Tylenol is still outselling the next four leading brands,'' says James Murray, assistant director of public relations for Johnson & Johnson. ''Our share is essentially where it was in spring 1982.'' But the mystery lingers, and the scope of the investigation reflects the unusual character of the crime, said Jeremy Margolis, a top state investigator who holds the newly created title of Illinois Inspector General. ''We lacked a crime scene and we lacked a motive, the two inroads to move into the solution,'' he said. ''All that was left was the cyanide.'' About 20,000 names, including some from anonymous tips, were logged into the computer, and 400 people were scrutinized extensively. Two of them, Roger Arnold and James W. Lewis, were eventually convicted in cases related to the Tylenol inquiry.
Mistaken Identity Is Seen Six weeks after the murders, Mr. Arnold, a laborer in the main warehouse of the Jewel Food Stores, was questioned after someone gave a tip to the authorities. He was released. The next June, according to the police, Mr. Arnold shot and killed a man whom he mistook for the tipster. Mr. Arnold, 48 years old, was subsequently convicted of second-degree murder in that case. Mr. Lewis, 40, an occasionally employed accountant, admits writing a letter to Johnson & Johnson threatening more killings unless he received $1 million. He was found guilty of attempted extortion and sentenced to 10 years in Federal prison. Why Tylenol deaths might go unsolved
Daily Herald - Sept. 29, 2002
Police officers and firefighters drove through neighborhoods using loudspeakers to warn people: "Don't take Tylenol!"
In some places, they went door to door with bags, collecting bottle after bottle of the pain reliever.
"It was in the early hours, before it got out in the media," said Elk Grove Village Deputy Police Chief Larry Hammer, who was just a young patrolman at the time. "People didn't know what was going on."
When the news got out, though, people flooded doctor's offices and hospitals with phone calls, asking questions about cyanide poisoning.
On this day 20 years ago, a series of events that started in Elk Grove Village and Arlington Heights would leave the Chicago suburbs and the nation - gripped by fear. Someone had put deadly doses of cyanide into Extra Strength Tylenol capsules.
The contaminated bottles were randomly placed on retail store shelves around Cook and DuPage counties. The fast-acting poison killed seven people in the Chicago area in three days.
Despite national hysteria, intense media attention and what was initially a 140-member police task force, the killer was never found. Today, the trail is cold, and investigators say they haven't had a new lead in more than a decade.
Someone got away with murder.
No one knew how much, or what kind, of tainted products were out there, and it was unclear whether the Tylenol poisonings were random or targeted at certain people.
The panic mirrored that which followed the recent anthrax cases.
"Today, we might consider it terrorism," said former Arlington Heights Deputy Fire Chief Charles Kramer, who witnessed two of the deaths. "The thought that someone would do that to another human being and not care who it was ... it was subhuman."
Suddenly, every food or medical product seemed vulnerable to tampering. Even trusted products, like aspirin or Halloween candy, were being viewed as potentially deadly.
"No one trusted anything," recalled Arlington Heights police Capt. John Fellmann, who helped investigate the crime. "Halloween has forever changed because of this. The case actually changed a national holiday."
The crime also revolutionized the way non-prescription medicine is packaged. Over-the-counter medicine used to be covered by nothing more than a piece of cotton and a plastic lid. Now, federal law requires three layers of protective, tamper-proof sealing.
The incident also set a new standard for corporate accountability. The makers of Tylenol, Johnson & Johnson, reacted to the crisis by immediately pulling all 22 million bottles of the product off the shelves nationwide, which cost the company more than $100 million. It was one of several decisions the company made that put customers' interests above corporate profits.
As a result, Tylenol - initially considered doomed to extinction - quickly regained its title as the country's top-selling pain reliever.
To this day, Johnson & Johnson's handling of the crisis is hailed as the textbook example of good public relations.
The only area in which progress wasn't made was in the search for the killer.
Federal, state and local police confirmed this week that the Tylenol murder case is ice cold. It's been several years - possibly more than a decade - since anyone has worked on the case.
FBI spokesman Ross Rice said no additional work has been done because there's nothing more for investigators to do.
"You reach a point where you've covered every lead, you've interviewed every possible witness, and there's nothing more you can do. Some cases just go unsolved," said Rice, one of the FBI agents who worked on the case in 1982. "This is the Brown's Chicken massacre. This is the Tammy Zywicki killing. Somebody knows who did it, and nothing's going to happen until someone comes forward."
Investigators never had much to go on in the first place. Former federal prosecutor Jeremy Margolis said there were no witnesses or physical evidence to link anyone to the crime, other than a few dozen fingerprints lifted off the tainted bottles and store shelves.
When a computerized, national database of fingerprints was created in the mid-1980s, authorities ran all of the fingerprints collected in the Tylenol case through the system, but nothing matched up. Even if they had, they would have made flimsy evidence, given that so many people handle merchandise in retail stores, Margolis said.
A task force of more than 140 investigators from around the country questioned every suspicious person and disgruntled employee. They chased tens of thousands of leads and examined and re-examined every possible motive, ranging from revenge seekers to stock manipulators.
Even psychics were brought in to help generate new leads, said Fellmann, a former detective with the Arlington Heights police department.
"We went over as many perspectives and angles as you can imagine," he said. "If someone had applied for a patent for a new way to safety-seal a product, we thought, could this person have done it to advance their patent?"
A list of potential suspects was compiled by the task force, but no one was ever charged with the crime.
Officials from the Illinois State Police, who are overseeing the investigation, describe the case as "open but cold."
If a new lead surfaced, they would follow up on it. In the meantime, they are going to focus their attention on other cases, Master Sgt. Lincoln Hampton said.
There are simply no leads to run anymore," added Margolis, who now is in private practice at Altheimer & Gray in Chicago. "On this particular case, I don't know what you could do that's new."
While the investigators might not think about the case every day, the surviving family members do.
Sophia Czyz, the older sister of victims Adam and Stanley Janus and the sister-in-law of victim Theresa Janus, still wonders who committed this crime. She's upset and disappointed that the killer was never caught.
"I don't know who to blame," she said. "It's frustrating and there's nothing we can do. It would be nice to know (the killer's) reasoning. Why did these people need to die?"
Czyz's husband, Marian, used to check in with investigators regularly to see if there were any new developments. Year after year, the answer was always "no," so he eventually stopped calling.
Czyz keeps the memories of her brothers and sister-in-law alive by telling stories about them to her children. Her faith and family help her get through the difficult days, like Christmas.
No one in the family takes Tylenol. Even when Czyz's mother was in the hospital a few years ago, she refused to let the doctors bring Tylenol into her room. She doesn't even like hearing the word, Czyz said.
Though her brothers died 20 years ago, Czyz's heart still aches for them. Whenever she talks about them, she cries.
"I live by the cemetery where they're buried, so when I pass by, I say hello," she said, referring to the Maryhill Cemetery in Niles. "There's not a day that goes by that I don't think about them. It's like it happened yesterday."
The pain still runs deep in the Kellerman family, too.
Twelve-year-old Mary Ann Kellerman of Elk Grove Village was Dennis and Jeanna Kellerman's only child. She was the first person to die from taking cyanide-laced Tylenol capsules.
"You still think about it. You think, 'She'd be 32 years old now. What would her life be like?' " said Mary Ann's grandmother, Patricia, who still lives in Elk Grove Village. "You never really get over it."
Kellerman's sudden death on the morning of Sept. 29, 1982, puzzled doctors and paramedics, but didn't generate any widespread concern. After all, taking Tylenol for a cold, like Kellerman did, was considered routine.
Even after the second death at 3 p.m. that day, when 27-year-old post office supervisor Adam Janus was found dead at his home in Arlington Heights, no one suspected a widespread problem.
It wasn't until paramedics were called back to the Janus house a second time, five hours later, that anyone became suspicious.
Charles Kramer, the fire lieutenant on duty at the time, recalls being intrigued by the second call of a "man down" at that same address, especially since the paramedics had come back from the first call talking about how strange it was that a healthy young man just seemed to drop dead.
Kramer decided to go over to the house. When he pulled into the driveway, he found a scene of chaos. Neighbors were standing in the driveway and lining the nearby sidewalks. Screams could be heard coming from inside the house.
Kramer walked in and saw a team of paramedics working on Adam Janus' brother, Stanley, who had suddenly collapsed.
What happened next will be forever etched in Kramer's memory. As Stanley lay on the living room floor, his pupils fixed and dilated, one of the paramedics looked up at Kramer with fear-filled eyes.
"This is what happened to the first guy. It's the same thing as this morning. We're losing him," he told Kramer.
Seconds later, the tragedy multiplied.
"We heard a groan in the living room and Stanley's wife collapsed right in front of us," Kramer said. "I turned around and I saw her go down. I thought she fainted, you know, maybe from her emotions. But then I saw that her pupils were fixed and dilated, too."
Theresa Janus, 19, became brain dead almost instantly. She died three days later.
Every paramedic at the scene immediately knew something strange was going on. They just didn't know what.
The mystery was solved quickly and unintentionally by Arlington Heights firefighters and the village nurse.
Firefighter Phillip Capitelli, now deceased, had heard the activity at the Janus house on the police scanner, and called the station to see what was going on.
He spoke to Kramer, who told him three members of one family had died. In interviewing the surviving family members, village nurse Helen Jensen concluded that the only thing they had in common was that they all had taken Tylenol.
It sounded familiar to Capitelli. Earlier that day, he talked to his mother-in-law, who worked with the mother of 12-year-old victim Mary Ann Kellerman. She asked him how a little girl could die so young.
Capitelli asked his friend Richard Keyworth at the Elk Grove Fire Department what happened. He explained that Kellerman had no real health problems. All she did was take a Tylenol.
Could it have been the Tylenol? Kramer and Capitelli thought it was possible. So Kramer called Northwest Community Hospital and told the theory to the doctors. The doctors found it ridiculous, Kramer said, but they checked it out anyway.
By morning, the toxicology reports confirmed that the Tylenol capsules had been contaminated with cyanide.
Within hours, a nationwide recall of Tylenol products was in progress. Many people believe that if these civil servants hadn't immediately made the connection between Tylenol and the sudden deaths, more people would have died. The quick response caught two more bottles of cyanide-laced pills still on store shelves, preventing unsuspecting consumers from taking them.
"It was just a lucky set of circumstances," Kramer said, modestly.
Before the crisis was over, seven people were dead. It was the lead story on the national newscasts, and people panicked every time they found a product that didn't look just right.
A police task force compiled a list of possible suspects. One of them was Roger Arnold, a dock worker at the Jewel warehouse in Melrose Park. He was never charged with the Tylenol murders, but was later convicted of murdering the man who led investigators to him.
Another suspect was James W. Lewis, a tax accountant living in Chicago, who had written a letter to Johnson & Johnson demanding $1 million "to stop the killings." He was convicted of extortion and an unrelated tax fraud charge, and sentenced to 20 years in jail.
After Lewis was released from prison in 1995, he called Margolis - the attorney who prosecuted him in the extortion case - and offered to help him solve the Tylenol murders.
Margolis found this to be a strange offer but spent hours talking with him in hopes that he might offer clues, or possibly confess, to the crime. He didn't.
But Lewis hand-wrote countless pages of theories and even drew pictures depicting how someone could have put cyanide in capsules, Margolis said. One of those pictures, "The Drill Board Method Theory," is framed and hanging on the wall of Margolis' office along with mementos from other cases.
Most investigators have strong feelings about who committed this crime but won't share them publicly.
Regardless of who is responsible for the poisonings, everyone wants to see the culprit behind bars.
"I would like to think everything is solvable," said Fellman, who added he still thinks about this case frequently. "One person can keep a secret; two people can not."
Margolis is also holding out hope.
"Anything is possible," he said.
Who did it?
Police connected to the case have varying theories about who might be responsible for the Tylenol killings.
• James W. Lewis. He was convicted of trying to extort money from Johnson & Johnson following the poisonings. Although he's maintained his innocence, he made investigators suspicious by offering to help solve the case.
• Roger Arnold. Questioned by police for three days after reportedly telling several Chicago tavern owners rambling stories about killing people with cyanide. He was released without charges, but later convicted of killing the man he believed directed the police to him.
• An unknown person who committed suicide. Criminal profilers say a psychopath would have continued to kill. Or they could have committed suicide or died of other causes. Since women are statistically more likely to commit suicide by overdosing on pills, one theory is that the Tylenol killer is a woman who took a deadly dose of cyanide herself.
• Terrorists. Biological terrorism existed long before anthrax, and wasn't at the top of people's minds like it is today. Some investigators dismiss this theory, saying terrorist groups usually take responsibility for their actions to call attention to their cause.
http://www.dailyherald.com/story/?id=269575


1982 NEWS AROUND THE NATION; 5 Indicted in Houston In Gulf Extortion CaseUPI - October 24, 1982 A Federal grand jury indicted five Durango, Colo., residents on charges of attempting to extort $15 million from the Gulf Oil Chemicals Company by planting bombs at its facility at Baytown, Tex. Named in 12 charges on Friday, including extortion conspiracy, transporting explosives and using the mail and the phone for unlawful purposes, were John McBride, 46 years old; his common-law wife, Jill Renee Bird, 36; Timothy Justice, 30; Theodore McKinney, 45, and Michael Worth, 34. Miss Bird, the only one of the five who was free before the indictment, was expected to surrender Monday. Gulf executives received the extortion letter on Sept. 28, two days after five bombs were planted at the facility. The plant was closed and the five bombs were found Sept. 29. Four were disarmed and one exploded harmlessly. A Federal grand jury indicted five Durango, Colo., residents on charges of attempting to extort $15 million from the Gulf Oil Chemicals Company by planting bombs at its facility at Baytown, Tex. Named in 12 charges on Friday, including extortion conspiracy, transporting explosives and using the mail and the phone for unlawful purposes, were John McBride, 46 years old; his common-law wife, Jill Renee Bird, 36; Timothy Justice, 30; Theodore McKinney, 45, and Michael Worth, 34. Miss Bird, the only one of the five who was free before the indictment, was expected to surrender Monday. Gulf executives received the extortion letter on Sept. 28, two days after five bombs were planted at the facility. The plant was closed and the five bombs were found Sept. 29. Four were disarmed and one exploded harmlessly. United States of America, Plaintiff-appellee, v. Theodore Duane Mckinney, Defendant-appellant United States Court of Appeals, Fifth Circuit. - 758 F.2d 1036 April 15, 1985 John E. Ackerman, Houston, Tex., for defendant-appellant. Daniel K. Hedges, U.S. Atty., Ronald G. Woods, James R. Gough, George A. Kelt, Jr., Susan L. Yarbrough, Asst. U.S. Attys., Mervyn Hamburg, Appellate Section, Vincent L. Gambale, Crim. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of Texas. Before RANDALL, JOHNSON and GARWOOD, Circuit Judges. RANDALL, Circuit Judge: 1 Theodore Duane McKinney was convicted by a jury of various offenses arising out of an abortive attempt to extort $15,000,000 from the Gulf Oil Corporation by threatening to detonate several bombs installed by McKinney's associates at the Cedar Bayou Chemical Plant. McKinney attacks (1) the admission of evidence obtained during allegedly illegal searches; (2) the admission of statements made by McKinney to FBI agents following his arrest; (3) the Government's repudiation of an agreement to refrain from offering evidence of an extrinsic offense allegedly committed by McKinney; (4) the Government's tardy disclosure of Brady material; and (5) the district court's midtrial refusal to review the Government's investigation file for additional undisclosed Brady material. Finding no reversible error in the proceedings in the district court, we affirm. 3 On September 28, 1982, officials of the Gulf Oil Corporation received a letter stating that more than ten explosive devices had been surreptitiously installed at the corporation's Cedar Bayou Chemical Plant. The letter further stated that another unnamed Gulf facility had been similarly sabotaged. The authors of the letter offered to sell to Gulf for $15,000,000 information regarding the location of the bombs and the means with which to safely disarm them. The letter stated that, if Gulf refused the offer, Cedar Bayou would be destroyed and the price for similar information about the second facility would rise to $30,000,000. 4 The letter stated that Gulf could accept the offer by placing an advertisement in the classified section of the Houston Post naming a person to whom further instructions could be communicated. The letter stated that this person should have a corporate jet at his disposal to deliver $15,000,000 to a point within 1,500 miles of Houston. 5 Gulf placed an advertisement in the Houston Post in which Bob Quintana, a member of the Gulf security staff, was appointed spokesperson for the corporation. On October 1, 1982, Quintana received three phone calls from one of the extortionists. Quintana was directed to fly to Phoenix, Arizona, with the money, to rent a car, and to drive from Phoenix to a bowling alley in Apache Junction, Arizona. The extortionist told Quintana that he would be contacted at a pay phone there at 4:00 p.m. 6 In the meantime, Gulf had been in contact with the FBI. While Quintana and FBI agents in Houston prepared for the trip to Phoenix, agents in Arizona focused their investigation around Apache Junction. Agents made arrangements with the phone company to "trap" phone calls made to either of the two pay phones located at the bowling alley. Quintana, who was by now equipped with transmitting and recording devices, did not arrive at the bowling alley until approximately 6:00 p.m. Between 4:00 p.m. and 5:40 p.m., the telephone company trapped nine unanswered phone calls to the bowling alley's two phones. These calls were all placed from pay phones along Apache Trail, a road not far from the bowling alley. The FBI sent agents to surveil the area around Apache Trail. 7 At 5:54 p.m., Quintana received a call at the bowling alley from one of the extortionists. The extortionist told Quintana to travel to a Chevron station located on Apache Trail. He received another call at the Chevron station at 6:27 p.m. During this call, he was directed to travel to a nearby department store where he would be contacted again at approximately 7:30 p.m. A telephone company trap revealed that the 6:27 call originated at a pay phone located at 150 Apache Trail. At approximately 6:35 p.m., agents observed two men sitting in a four-wheel drive truck parked near the telephone booth at 150 Apache Trail. The truck remained parked there for approximately ten minutes and then began a circuitous drive at slower-than-normal speeds through the surrounding area. After driving past the pay phone to which Quintana had been directed by the 6:27 call and making two U-turns, but without making any stops, the truck returned to the pay phone at 150 Apache Trail. After about ten minutes, the two men left the truck and walked to the pay phone. One of them entered and placed a call. The other stood outside of the phone booth "with his head up against it." Quintana received a call at the department store immediately after one of the men under surveillance entered the phone booth at 150 Apache Trail. Upon notification of this fact, agents converged on the telephone booth with their guns drawn and ordered the two men to drop to their knees. An agent then picked up the telephone and verified that Quintana was on the other end of the call. At 7:35 p.m., McKinney, who had been standing outside of the phone booth, and Michael Worth, who had been inside placing the call, were formally arrested. 8 At 7:36 p.m., McKinney received Miranda warnings. At 7:46 p.m., he signed a form authorizing a consent search of the four-wheel drive truck in which he and Worth had been observed earlier. At 7:48 p.m., McKinney was again advised of his Miranda rights. Although he stated that he understood his rights, he refused to sign a "Waiver of Rights" form. Shortly after 8:00 p.m., McKinney was transported to the FBI office in Phoenix, where he was questioned until he asked to speak with an attorney at about 10:00 p.m. Agents searched the four-wheel drive vehicle at the FBI office and discovered several weapons and other incriminating evidence. 9 As their investigation continued, FBI agents learned that the extortion plot was conceived and planned in Durango, Colorado. On October 5, 1982, agents obtained a warrant to search the Ezra R, a Colorado mine owned by McKinney, for bomb paraphernalia and "other evidence of a plan to extort money from Gulf Oil Corporation." Various explosive devices were discovered at the Ezra R. McKinney was eventually indicted, along with Worth, John McBride and two others, for his role in the extortion plot. Following suppression hearings, McKinney obtained a severance of his case from that of his codefendants, all of whom eventually pleaded guilty. McKinney had moved to suppress evidence obtained during the consent search of his vehicle following his arrest and evidence obtained during the warranted search of the Ezra R. At trial, he objected to the admission of statements he made at the FBI office following his arrest. The district court denied the motions and overruled his objection. 10 During the suppression hearing, it became apparent that McKinney and his codefendants were under investigation by Colorado authorities for the theft of gold from a company known as Standard Metals. McKinney's counsel and an assistant United States attorney discussed this extraneous offense, both on and off the record, and reached an agreement either, as the Government recalls, that the Government would not introduce evidence of the Standard Metals theft in its case-in-chief or, as McKinney recalls, that the Government would not introduce evidence of the Standard Metals theft for any purpose during McKinney's trial. Late in its case-in-chief, the Government announced its intention to introduce evidence of the gold theft if McKinney or Worth testified during McKinney's case-in-chief in support of McKinney's defense that he originally became involved in the extortion scheme because of an honest belief that his codefendants were conducting a legitimate investigation and that, once he discovered the true nature of the scheme, his continued participation was coerced by threats against his wife. McKinney immediately moved in limine to prohibit the Government from introducing evidence, for any purpose whatsoever, of the gold theft. Although the district court denied the motion, along with McKinney's motion for a mistrial, McKinney was granted a three-day continuance to allow counsel time to investigate the Standard Metals theft. Neither McKinney nor Worth testified at trial. 11 Before trial, McKinney and the Government engaged in extensive discovery. McKinney asked the Government to disclose all exculpatory evidence in its possession to which McKinney was entitled under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), including evidence "which tends ... to impeach or contradict the testimony of any witness whom the government will call at the trial of the cause." The district court ordered the Government to comply with McKinney's Brady request. On the eve of trial, the Government decided for the first time that John McBride would be called as a witness. During trial, McKinney filed a motion to prohibit McBride's testimony on the ground that the Government failed to disclose Brady material bearing on McBride's credibility. The district court denied the motion, but ordered the Government to again review its files and to disclose all Brady material in its possession relating to McBride. The Government disclosed some additional material and again represented that all Brady material had been disclosed. A few days later, however, after McBride left the witness stand, the Government disclosed still more material relating to McBride. McKinney moved for immediate dismissal of the indictment for prosecutorial misconduct or, in the alternative, that the district court itself review the Government's investigation file to ensure that all Brady material had finally been disclosed. The district court denied both aspects of the motion. 12 On appeal, McKinney attacks the district court's rulings on the motions to suppress, the motion in limine, the motion to dismiss for prosecutorial misconduct, and the motion for an in camera review of the Government's investigation file. We shall consider the claims in turn. 14 McKinney moved to suppress the fruits of the FBI's consent search of his four-wheel drive truck, a Ford Bronco. McKinney consented to the search immediately following his arrest outside of the phone booth on Apache Trail. McKinney claimed in the district court that the arrest was made without probable cause, that McKinney's consent to search the vehicle was tainted by the illegal arrest, and that the search itself was therefore illegal. The district court denied the motion to suppress the fruits of the search for three separate reasons: (1) the arrest was in fact supported by probable cause and McKinney's consent to the search was "valid"; (2) the search was made under exigent circumstances; and (3) "numerous weapons and ammunition were visible in the vehicle, in plain view." 15 McKinney claims that probable cause for his arrest did not develop until an FBI agent verified that Quintana was on the other end of the telephone call that had been placed from the phone booth on Apache Trail. McKinney argues, however, that the arrest actually occurred five seconds earlier when agents approached the phone booth with guns drawn and ordered McKinney and Worth to their knees. Finally, McKinney claims that, because the arrest was illegal, the search of the Bronco was necessarily tainted "whether based on consent, exigent circumstances or inventory." 16 We reject McKinney's arguments because we are convinced that agents had probable cause to arrest him before they discovered that Quintana was on the other end of the telephone call that had been placed from the Apache Trail telephone booth. "Probable cause for arrest is present 'when the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant in a person of reasonable caution the belief that an offense has been or is being committed.' " United States v. Maldonado, 735 F.2d 809, 815 (5th Cir.1984) (quoting United States v. Woolery, 670 F.2d 513, 515 (5th Cir.), cert. denied, 459 U.S. 835, 103 S.Ct. 78, 74 L.Ed.2d 75 (1982)). The agents that arrested McKinney knew that (1) he was parked near a telephone booth from which, minutes before, an extortion call had been placed to Quintana; (2) another extortion call was scheduled for 7:30 p.m.; (3) McKinney and his companion drove past the telephone booth to which Quintana had been directed and then drove aimlessly around the surrounding area at casual speeds; (4) they returned to the same phone booth from which the earlier call had been placed; and (5) McKinney and his companion placed a phone call at the same time that Quintana received the 7:30 extortion call. Relying on "factual and practical [considerations] of everyday life," we agree that a person of reasonable caution would have been justified in believing that McKinney and his companion placed the extortion call that Quintana received. Maldonado, 735 F.2d at 815. Obviously, therefore, the agents had probable cause to arrest McKinney. 17 McKinney does not attack the district court's finding, which, at any rate, is amply supported by the record, that he voluntarily consented to the search of his vehicle. Because the voluntary consent was not tainted by an illegal arrest, the district court's decision not to suppress the fruits of the search is fully supported by that finding. Accordingly, we need not address the alternative bases for the court's ruling. 18 McKinney claimed in the district court that, although agents searched the Ezra R pursuant to a warrant, the search was illegal because the affidavit supporting the warrant did not "allege sufficient facts to establish probable cause." The district court rejected this claim after construing the affidavit in "a common sense and realistic fashion." 19 McKinney argues on appeal that the warrant must fail because there is no information in the affidavit from which a neutral and detached magistrate could have determined that bomb paraphernalia or other evidence of the extortion plot might be located at the Ezra R. In other words, the affidavit, to McKinney, does not establish a sufficient nexus between the items to be seized and the place to be searched. See generally 1 W. LaFave, Search and Seizure Sec. 3.7(d) (1978 & Supp.1985). 20 An affidavit must " 'provide[ ] [the magistrate] with sufficient reliable information from which he could reasonably conclude that the items sought in the warrant were probably at the location sought to be searched.' " United States v. Marbury, 732 F.2d 390, 395 (5th Cir.1984) (quoting United States v. Morris, 647 F.2d 568, 573 (5th Cir.1981)). On appeal, "we construe the sufficiency of ... [the] affidavit independent of the district court," and we are not limited by the clearly erroneous standard. United States v. Freeman, 685 F.2d 942, 948 (5th Cir.1982). Still, like the district court, we owe much deference to the magistrate's determination of probable cause, and we must construe the affidavit in a common sense manner. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). 21 The affidavit recounts in detail the circumstances surrounding the receipt by Gulf of the extortion letter, the trip by Quintana to Arizona, and the arrest of McKinney and Worth at the telephone booth on Apache Trail. The affidavit also recites information connecting the extortion plot to Durango, Colorado, where suspected-extortionists Worth, McKinney, McBride and McBride's wife, Jill Bird, all reside. For example, the affidavit recounts that phone calls were placed from Bird's Houston hotel room to McBride's residence in Colorado on September 29, 1982. In addition, McBride's telephone number and the numbers of several Durango, Colorado, pay phones were listed on a document entitled "To Contact John for Message Relay or Back-Up Assistance" which was found in Worth's possession on the night of his arrest. The affidavit also states that bombs discovered at Cedar Bayou contained components marketed by Radio Shack and that the manager of the Radio Shack in Durango, Colorado, sold similar components in September to "M. Worth" and "J. Bird." Moreover, the affidavit recites that on October 4, 1982, McBride confessed to having manufactured the bombs discovered at Cedar Bayou and stated that "Ted McKinney had provided water gell explosive[s] and dynamite included in the devices." Finally, the affidavit states that McKinney owns the Ezra R mine in Silverton, Colorado, and that visual surveillance of the mine revealed three padlocked buildings on the property. 22 McKinney complains that mere evidence of his involvement in the extortion plot and his ownership of the Ezra R does not establish a nexus between the Ezra R and evidence of the extortion plot. Yet, McKinney argues, the affidavit provides nothing further from which a magistrate could have concluded that evidence of the plot might be located at the mine. McKinney relies on United States v. Flanagan, 423 F.2d 745 (5th Cir.1970), and United States v. Gramlich, 551 F.2d 1359 (5th Cir.), cert. denied, 434 U.S. 866, 98 S.Ct. 201, 54 L.Ed.2d 141 (1977), which hold that probable cause to search a residence does not necessarily exist simply because the owner of the residence is known to have been engaged in criminal activity. From these cases, McKinney apparently concludes that, in order to establish a sufficient nexus between the items to be seized and the place to be searched, the affiant, or a reliable person upon whom he has relied, must have seen the evidence there. 23 That, of course, is not the law. A nexus between the place to be searched and the items to be seized may be established either through direct observation or through "normal inferences as to where the articles sought would be located." United States v. Minis, 666 F.2d 134, 139 (5th Cir.), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982). See also United States v. Freeman, 685 F.2d at 949 ("[p]assports, personal identification, and bank records are precisely the sorts of items which people tend to keep at home among their personal papers and effects"); United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir.1977) ("Mail is one of those items that people normally receive and keep at their places of residence."). In determining whether a magistrate has drawn a "normal inference" that evidence, fruits or instrumentalities of crime might be found at a given location, we have considered both the distance between the criminal activity or the situs of the arrest and the premises to be searched and the nature of the criminal activity. In Flanagan, for example, we held that an affidavit that stated simply that a known felon, who was arrested in Dallas, was carrying items stolen from a home in Houston, did not establish probable cause to search the arrestee's home in Fort Worth. We said: "The statement, even if reliable, that a named person who is a known felon has committed a burglary, plus possession by the suspect of some of the proceeds when arrested, does not without more authorize the issuance of a warrant to search the residence of the accused miles away." 423 F.2d at 747. See also United States v. Green, 634 F.2d 222 (5th Cir.1981) (rejecting inference that fruits of crime committed in California might be found in Florida residence of putative criminal). Where there is evidence of "continuing criminal activity," on the other hand, it may be easier to infer that fruits, evidence, or instrumentalities of that activity are located at premises owned by a participant in the criminal operations. See Freeman, 685 F.2d at 950. 24 To agree with the magistrate's determination of probable cause, we need only find that the "facts and circumstances described in the affidavit would warrant [acceptance by] a man of reasonable caution" of the inference that bomb paraphernalia or other evidence of the extortion plot could be found at the Ezra R. United States v. Maestas, 546 F.2d at 1180. Surely, the affidavit establishes probable cause to believe that McKinney was involved in the extortion plot, that the scheme was centered in Colorado, that some of the components of the bombs were purchased in Colorado, and that McKinney supplied explosive devices used to manufacture the bombs. Moreover, the affidavit clearly establishes that there are structures suitable for the storage of explosive devices located at the Ezra R. Just as it is reasonable to infer that certain types of materials may be stored in one's home, common sense tells us that it is reasonable to infer that explosive devices may be stored in padlocked storage sheds located at a mine. Given the clear nexus, established by firsthand observations of FBI agents, between McKinney and the extortion scheme, we believe that this inference creates a sufficient nexus between the Ezra R and the items sought by the warrant. 25 At trial, the Government asked FBI agent Bagley to "explain in chronological order [the] conversations [he] had with Mr. McKinney from the time of arrest going on." McKinney objected to the question on the ground that McKinney's postarrest statements were obtained in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). 26 Following McKinney's objection, the district court listened to Bagley's testimony outside of the jury's presence. Bagley's testimony can be summarized as follows. Bagley advised McKinney of his rights immediately following his arrest. A few moments later, McKinney read and signed a form giving his consent to a search of the Bronco. A few moments after that, agents again read McKinney his rights and asked him to sign a "Waiver of Rights" form. McKinney stated that he understood his rights, but that he did not wish to sign the form. Agents then transported McKinney to the FBI office. Once there, McKinney had further conversations with FBI agents. First, he asked the agents to explain the charges upon which he had been arrested. He then stated that the purpose of his trip to Arizona was dove hunting and that he was not involved in the Gulf extortion plot. The district court overruled the objection on the ground that the mere refusal to sign a waiver of rights form does not by itself invoke the right to have counsel present during questioning. Apparently because McKinney did nothing else to indicate a desire to speak with an attorney, the court concluded that the protections of Edwards were not implicated. Bagley then repeated the same basic story for the jury. 27 McKinney argues on appeal that, by refusing to sign the "Waiver of Rights" form, McKinney, in effect, affirmatively "expressed his desire to deal with police only through counsel," Edwards, 451 U.S. at 485, 101 S.Ct. at 1885, or at least equivocated with respect to his desire to consult an attorney before speaking to agents. Thus, under Edwards or United States v. Cherry, 733 F.2d 1124 (5th Cir.1984), all statements made by McKinney at the FBI office on the night of his arrest are inadmissible because agents did not clarify whether McKinney desired to speak with a lawyer, because McKinney did not initiate the conversations, and because counsel had not been made available to him. 28 McKinney did not expressly ask to speak with a lawyer until 10:00 p.m. on the evening of his arrest, at which point agents immediately stopped questioning him. Apart from the waiver-of-rights form, McKinney does not argue that, prior to the 10:00 p.m. statement, he expressly requested a lawyer or in any other manner, either equivocally or unequivocally, manifested a desire to have legal representation. In fact, there is nothing in the record, beyond the refusal to sign the waiver form, to vitiate the district court's implicit conclusion that McKinney voluntarily spoke with FBI agents and waived his Miranda rights. Thus, McKinney's theory that his statements were made in violation of Edwards or Cherry has merit only if the refusal to sign a waiver of rights form by itself is at least an equivocal invocation of the right to have counsel present during questioning. If the refusal to sign the form is an "equivocal request for counsel," further questioning by police " 'must be limited to clarifying that request.' " Cherry, 733 F.2d at 1130-31 (quoting Thompson v. Wainwright, 01 F.2d 768, 771-72 (5th Cir.1979)). 29 McKinney candidly points out that we have already rejected the claim that an accused's refusal to sign a waiver form by itself amounts to an invocation of the right to remain silent, thus rendering the fruits of subsequent questioning inadmissible. In United States v. Klein, 592 F.2d 909 (5th Cir.1979), the accused was twice advised of his rights and testified that he fully understood that he was not obligated to answer questions. He in fact answered questions, however, and did not ask for an attorney or ask that the interrogation cease. We rejected the argument that the accused's refusal to sign a waiver form, together with his statement that he did "not particularly" want to tell police where he obtained cocaine discovered in his possession, constituted an invocation of his right to remain silent. We said: "Of course, the mere refusal to sign a waiver form does not make further inquiry illegal." Id. at 914 n. 10. 30 McKinney asks us to reconsider Klein. McKinney fails to point out, however, that Klein is not the only case to reject a per se rule with respect to statements made following the refusal by an accused to sign a waiver form. See, e.g., McDonald v. Lucas, 677 F.2d 518, 520 (5th Cir.1982); United States v. McDaniel, 463 F.2d 129, 135-36 (5th Cir.1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973). Moreover, as the Supreme Court noted in North Carolina v. Butler, 441 U.S. 369, 375 n. 5, 99 S.Ct. 1755, 1758 n. 5, 60 L.Ed.2d 286 (1979), "[t]he Courts of Appeals have unanimously rejected the ... argument that refusal to sign a waiver form precludes a finding of waiver." In Butler, the accused stated that he understood his rights but that he did not desire to sign a waiver form. The Court rejected a per se rule formulated by the Supreme Court of North Carolina that a waiver of Miranda rights must be express. 31 As Butler makes clear, McKinney seeks to unduly narrow the inquiry. The crucial question is not whether McKinney signed the waiver form and expressly waived his Miranda rights. "Rather, the crucial question is when can a waiver of rights be implied or inferred from the actions and words of the person interrogated." McDonald, 677 F.2d at 520. McKinney correctly points out that such a waiver cannot be found, even though the accused answered additional questions, if he has made an equivocal request for counsel. See Cherry, 733 F.2d at 1130. In Cherry, for example, the accused stated that "Maybe I should talk to an attorney before I make a further statement," and, a few moments later, asked "Why should I not get an attorney?" Id. 32 In this case, on the other hand, McKinney relies exclusively on his failure to sign a waiver form. Yet, "[a] refusal to sign a waiver may indicate nothing more than a reluctance to put pen to paper under the circumstance of custody." McDaniel, 463 F.2d at 135. See also Palmes v. Wainwright, 725 F.2d 1511, 1516 (11th Cir.) (refusing "to turn [the] statement 'I will talk to you without counsel, but I won't sign a written waiver form,' into 'I want an attorney' "), cert. denied, --- U.S. ----, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). Accordingly, we reject McKinney's claim that his refusal to sign a waiver form automatically rendered further questioning illegal. Moreover, in the circumstances of this case, we agree with the district court's implicit determination that McKinney voluntarily waived his Miranda rights, notwithstanding his failure to sign the form. See McDaniel, 463 F.2d at 135 ("A court must look to all the circumstances of the detention to ascertain whether or not the refusal to sign a waiver was tantamount to a refusal to discuss."). 33 AGREEMENT NOT TO USE EVIDENCE 34 On October 18, 1983, during redirect examination, the Government asked McBride the following question: "Were there numerous thefts [of gold] ... from Standard Metals during the years '81 and '82?" McKinney objected to the question and, at a bench conference, informed the district court that the Government had agreed not to introduce evidence of McKinney's alleged involvement in the theft of gold from Standard Metals. The Government responded that it did not intend to develop McKinney's involvement in the gold theft through McBride or otherwise during its case-in-chief. The Government also stated, however, that if McKinney opened the door with evidence during his own case that he initially believed that the Gulf extortion plot was a legitimate, private investigation, the Government would in fact introduce evidence during rebuttal of McKinney's involvement in the theft of gold from Standard Metals. 35 On October 19, 1983, McKinney repeated his view that the Government had agreed not to introduce evidence of the Standard Metals theft during McKinney's trial. The Government again responded that the agreement was limited to use of the evidence in its case-in-chief and asserted that, if McKinney produced evidence that he believed the Gulf extortion plot to be a legitimate investigation, the Government would introduce evidence of his participation in the Standard Metals theft. The district court concluded that the parties had misunderstood their respective positions but that, because the agreement was not reduced to writing or made in open court, the court could not determine its actual scope. To ensure that McKinney would not be prejudiced by the misunderstanding, however, the court continued the case until October 25 so that McKinney could investigate the gold theft matter. 36 On October 24, 1983, McKinney filed a motion in limine to "prohibit the government from introducing any evidence whatsoever regarding a theft of metals from Standard Metals in Silverton, Colorado." The next day, the district court denied the motion in limine. The court held that, because the agreement had not been presented to the court in a stipulation or otherwise, the court need not attempt "to fare ... out ... the terms of [the] agreement." The court also found, however, that "there has been an unfortunate but a reparable misunderstanding" between the parties about the Government's intentions with respect to evidence of the gold theft. Finally, the court found that McKinney had not suffered substantial prejudice as a result of the misunderstanding. 37 In his appellate brief, McKinney apparently assumes that the record conclusively establishes that the Government in fact agreed to forego all possible uses of the gold theft evidence in McKinney's trial; the brief focuses on the prejudice that McKinney purportedly suffered when the district court released the Government from the agreement. At oral argument, McKinney argued that the scope of the agreement is a question of fact that the district court refused to resolve. Our review of the record reveals that the district court made an implicit finding, which is amply supported by the record, that the Government did not agree to refrain from using the extraneous-offense evidence for any purpose. Moreover, we agree with the district court's determination that McKinney did not suffer substantial prejudice from his misunderstanding with respect to the Government's intentions. 38 We have previously held that agreements between the Government and a defendant to forego the presentation of otherwise admissible evidence are enforceable: "[W]hen the government and a defendant enter into a pretrial agreement both parties are entitled to rely upon that agreement in preparing their respective cases." United States v. Jackson, 621 F.2d 216, 220 (5th Cir.1980). In fact, we have reversed at least two convictions because of the receipt of extraneous-offense evidence that the government had agreed not to present at trial. See Jackson, 621 F.2d at 216 (admission of evidence of extraneous loans and overdrafts in prosecution for making false entries in records of a national bank); United States v. Scanland, 495 F.2d 1104 (5th Cir.1974) (admission of evidence of prior attempt to pass counterfeit bill in prosecution for passing counterfeit twenty-dollar bills). We have also recognized, however, that the district court may, in its discretion, release the parties from pretrial agreements if reasonable notice has been given of the desire to repudiate the agreement and, on balance, the prejudice that will flow from the release is outweighed by the reasons justifying it. Moreover, "[i]f there is no resulting prejudice an appellate court should not reverse a trial court decision to release a party from a pretrial agreement." Jackson, 621 F.2d at 220 (citing United States v. Phillips, 585 F.2d 745 (5th Cir.1978) (affirming conviction notwithstanding government's failure to follow pretrial discovery agreement)). 39 These precedents are not particularly helpful in reviewing McKinney's claim that the district court erred in refusing to enforce his version of the agreement. The parties in these cases did not dispute the existence and scope of the agreements; the only question was whether the district court erred in releasing the Government from its obligation to comply with the agreements. In this case, on the other hand, the parties do not agree on the scope of the agreement. Although our research has revealed prior cases presenting a dispute over the scope of pretrial agreements, these too are not particularly helpful. Each of them involves a pretrial agreement stipulated to on the record and approved by the district court; the reviewing courts simply analyzed the district courts' interpretation of fully disclosed agreements to which the courts had been made privy. See United States v. Hayes, 589 F.2d 811, 825-26 (5th Cir.), cert. denied, 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); United States v. Angelini, 607 F.2d 1305, 1308 (9th Cir.1979); United States v. Pomares, 499 F.2d 1220, 1223 (2d Cir.), cert. denied, 419 U.S. 1032, 95 S.Ct. 514, 42 L.Ed.2d 307 (1974). 40 McKinney asks us to delineate the district court's role when, during the middle of trial, a party asserts the existence of a previously undisclosed, oral agreement, the scope of which is disputed by his adversary. The district court in this case seemed to hold that, unless the agreement is written or recited in open court and approved by the district court, the agreement is perforce unenforceable and the district court need not resolve any disputes that may develop with respect to the agreement's scope. The district court did not cite any authority for that proposition. Presumably, the court relied on Rule 1(H) of the Local Rules of the United States District Court for the Southern District of Texas, which provides that agreements among the parties or their attorneys are not enforceable unless communicated to and approved by the court. 41 Presentation of pretrial agreements to the district court will of course greatly reduce the potential for the kind of misunderstanding that has developed in this case. Moreover, compliance with Rule 1(H) in a criminal case is consistent with the spirit of Rule 17.1, Fed.R.Crim.P., which authorizes pretrial conferences in criminal cases and provides that "[a]t the conclusion of a conference the court shall prepare and file a memorandum of the matters agreed upon." Obviously, reliance upon extrajudicial, oral agreements with one's adversary is a hazardous procedure which we do not encourage. We need not decide, however, whether Rule 1(H) is strictly enforceable according to its terms or whether there are circumstances in a criminal case in which fairness will demand that the district court enforce oral agreements notwithstanding noncompliance with Rule 1(H). 42 A stipulation among the parties to a lawsuit is akin to a contract. The parties are bound "only to the terms actually agreed upon." Rice v. Glad Hands, Inc., 750 F.2d 434, 438 (5th Cir.1985). Although the district court stated that, because the agreement was not written or recited in open court, it need not determine what terms were agreed upon by the parties to this case, the court considered all of the evidence of the agreement offered by the parties. The court reviewed those portions of the record in which, according to McKinney, the parties discussed the agreement. Moreover, although the court did not take their sworn testimony, the court listened to extensive statements from both the United States attorney and McKinney's counsel concerning their respective interpretations of the agreement. The district court concluded from this review that there had simply been a misunderstanding. It is implicit in this conclusion that the parties did not reach the agreement upon which McKinney relies. This finding is not clearly erroneous. The references in the record to the agreement are fleeting and do not vitiate the district court's conclusion. Moreover, it is not the case that one of the attorneys must be telling the truth about the agreement and that the other must be mistaken or must have lied to the district court. If they both understood the agreement as they represented to the district court, and if their respective interpretations were both objectively reasonable, there simply was no agreement for want of mutual assent. 43 At any rate, we agree with the district court that McKinney did not suffer substantial prejudice. Assuming that the agreement existed, and assuming that McKinney can now complain of the district court's denial of his motion in limine, cf. Luce v. United States, --- U.S. ----, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (denial of motion in limine to prohibit use of prior conviction to impeach cannot be raised on appeal unless defendant testifies), the fact remains that McKinney learned of the repudiation of the agreement before the commencement of the defense's case-in-chief. The district court provided McKinney ample time to investigate the Standard Metals theft. Moreover, the district court indicated that, if evidence of the gold theft was received, the court would consider allowing McKinney to conduct additional cross-examination of witnesses who had already testified. McKinney alleges that he suffered additional prejudice because, had he not relied on the Government's promises, either he would have requested jury voir dire on extraneous offenses and would have discussed the gold theft in his opening statement or he would have requested more extensive voir dire on his right not to testify. We agree with the district court's conclusion that this asserted prejudice is not substantial. We note that the jury was instructed on McKinney's right not to testify and presumably would have been instructed, had the gold theft evidence been admitted, on the proper use of extrinsic-offense evidence. 45 On October 24, 1983, near the end of the Government's case-in-chief, McKinney filed a motion to dismiss the indictment for prosecutorial misconduct. The motion recites that, just prior to trial, on September 26, the Government announced full compliance with the district court's Brady order, which was entered in response to McKinney's request for, among other things, evidence tending to impeach the credibility of Government witnesses. Yet, the motion continues, the Government knew at that time that McBride would be called as a witness at trial and possessed undisclosed material bearing on McBride's credibility. When McKinney learned of the existence of undisclosed Brady material relating to McBride, consisting of an FBI report of interviews with McBride's ex-wife and a "rap" sheet on McBride, he moved on October 13 to prohibit McBride from testifying. The district court denied that motion but ordered the Government to review its file, to turn over to McKinney Brady material bearing on McBride's credibility, and to submit for the court's review any material that arguably should be disclosed but about which the Government was unsure. On October 13, the Government in fact disclosed to McKinney approximately forty pages of FBI investigation reports and submitted an additional report to the court for in camera review. On October 14, the court denied McKinney's request to view McBride's presentence investigation report, but allowed him to see that portion of the report relating to McBride's criminal record. In addition, the court excised a portion of the report submitted for in camera review and disclosed the rest of it to McKinney. 46 The motion to dismiss further recites that, following the Government's announcement of its intention to introduce evidence of the gold theft, the Government, on October 19, disclosed additional FBI reports to McKinney. These reports relate to the Standard Metals theft and, according to McKinney, also contain information bearing on McBride's credibility. Yet, the motion continues, the Government did not release them to McKinney until after McBride testified. Moreover, the motion asserts, the documents released on October 19 reveal that McBride perjured himself during his testimony and that the Government, although in possession of documents that revealed the untruthfulness of McBride's testimony, breached its obligation to point this out to the court. In the motion, McKinney asks the court to dismiss the indictment for prosecutorial misconduct both in failing to alert the court that McBride perjured himself and in disclosing Brady material in an untimely manner. In the alternative, the motion asks that the Government be ordered to recall McBride as a witness to afford McKinney an additional opportunity to conduct cross-examination, that McKinney be allowed to interview a witness, at Government expense, whose identity is revealed in the documents disclosed on October 19, and that the court itself review the Government's entire investigation file to ensure compliance with the court's Brady orders. 47 On October 26, the court denied all of the relief requested in the motion to dismiss. First, the court found that the Government did not knowingly employ perjured testimony and that, at any rate, McBride's allegedly false statements were thoroughly impeached during cross-examination. Second, the court found that, although the documents released to McBride on October 13 should have been disclosed as soon as the Government decided that McBride would be called as a witness in its case-in-chief, the tardy disclosure did not rise to the level of prosecutorial misconduct and, at any rate, did not prejudice McKinney. Third, the court held that, because the Government did not itself obtain the documents released on October 19 until October 17, disclosure of them after McBride testified likewise did not constitute prosecutorial misconduct. Fourth, the court refused to review the Government's investigation file for additional undisclosed Brady material because the request was a blanket one that did not point to specific material which may have remained undisclosed. Fifth, the court denied McKinney's request that the Government be ordered to recall McBride for additional cross-examination. The court left open the possibility that, if the Government in fact introduced evidence of the gold theft, McKinney could recall McBride for further cross-examination. Finally, the court noted that the Government had already agreed to provide McKinney with an opportunity to interview the witness whose identity was purportedly revealed by the documents disclosed on October 19. 48 On appeal, McKinney asks us to "send a message" to assistant United States attorneys that Brady material must be disclosed prior to trial. McKinney fails to recognize, however, that Brady does not establish a broad discovery rule; rather, it defines the Government's minimum duty under the due process clause to ensure a fair trial. See United States v. Campagnuolo, 592 F.2d 852, 855, 860 (5th Cir.1979). Regardless of our opinion of the Government's conduct in this case, we cannot reverse McKinney's conviction unless a fundamentally unfair trial resulted. 49 There are three elements to a valid Brady claim on appeal: "(1) [T]he prosecution must suppress or withhold evidence, (2) which is favorable, and (3) material to the defense." United States v. Auten, 632 F.2d 478, 481 (5th Cir.1980) (citations omitted). Even if we assume that the Brady evidence at issue in this case was, under the appropriate standard, both favorable and material to McKinney's defense, the fact remains that the Government did not suppress the evidence. Rather, the Government disclosed it to McKinney during trial. The courts have uniformly held that, in such circumstances, the inquiry is whether the defendant was prejudiced by the tardy disclosure. If the defendant received the material in time to put it to effective use at trial, his conviction should not be reversed simply because it was not disclosed as early as it might have and, indeed, should have been. See United States v. Nixon, 634 F.2d 306, 311-13 (5th Cir.) (failure to disclose immunity agreement with Government witness; not disclosed to defendant until witness' testimony), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103 (1981); United States v. Campagnuolo, 592 F.2d at 860 (even assuming that Brady overrides Jencks Act, indictment should not have been dismissed because of tardy disclosure of witness' grand jury testimony containing exculpatory statements); United States v. Decker, 543 F.2d 1102, 1105 (5th Cir.1976) (Government fulfilled its disclosure duty by disclosing information to correct false testimony after witness testified but while still subject to recall), cert. denied, 431 U.S. 906, 97 S.Ct. 1700, 52 L.Ed.2d 390 (1977); see also United States v. Xheka, 704 F.2d 974, 981 (7th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983); United States v. Higgs, 713 F.2d 39, 44 (3d Cir.1983) (where Brady material has impeachment value only, disclosure on day witness testifies satisfies due process), cert. denied, --- U.S. ----, 104 S.Ct. 725, 79 L.Ed.2d 185 (1984); United States v. Pollack, 534 F.2d 964, 973 (D.C.Cir.) ("disclosure by the government must be made at such time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case ..."), cert. denied, 429 U.S. 924, 97 S.Ct. 324, 50 L.Ed.2d 292 (1976). 50 We agree with the district court's conclusion that McKinney has not shown that he was prejudiced by tardy disclosure of most of the Brady material relating to McBride. As noted, McKinney received a group of documents relating to McBride, which the parties have referred to as the "A documents," on October 13. Although direct examination of McBride commenced on October 14, McKinney did not begin his cross-examination until October 18. The record amply supports the district court's conclusion that McKinney used the A documents effectively during cross examination and thoroughly impeached McBride's credibility. Accordingly, tardy disclosure of the A documents did not impugn the fairness of the trial. 51 McKinney received another group of documents, which the parties refer to as the "C documents," on October 19. Examination of McBride was completed, however, on October 18. The C documents consist of: (1) an FBI report of an interview with Terry Olliff, an admitted participant in the Standard Metals gold theft; (2) various documents and correspondence allegedly exchanged by McBride under the alias "John M. Muldoon" and his attorney with a company to which gold from the Standard Metals theft was purportedly sold; and (3) two FBI reports of the investigation of the Standard Metals theft. Because McKinney has maintained that evidence of the Standard Metals theft was inadmissible, he has, understandably, not argued generally that his cross-examination of McBride was prejudiced because he did not receive the C documents until after McBride left the witness stand. Rather, McKinney points to two specific items contained in the C documents which purportedly prejudiced the cross-examination of McBride. The FBI report of the interview with Olliff recounts that Olliff stated that "[o]nce John McBride threatened me with death if I told anyone of [the gold thefts] and who was involved." The C documents contain a notarized release, signed and sworn to by John Muldoon. In the release, Muldoon purports to release Kinetic Minerals, Inc., from liability in connection with gold concentrate sold to Kinetic Minerals by Muldoon's company. The release states that Muldoon is a general partner of Pacific Mining Partners, a company which had clear title to the gold concentrate sold to Kinetic Minerals. McKinney claims that the gold referred to in the release was stolen from Standard Metals, that McBride signed the release using his Muldoon alias, and that, because the release is notarized and contains false statements, it constitutes an example of perjury by McBride. 52 McKinney cross-examined McBride at length about his propensity to commit perjury and to threaten people. He claims that his cross-examination was hindered because he was not provided with the C documents, which contain additional evidence of perjury and threats by McBride. Following disclosure of the C documents, McKinney asked the district court to recall McBride so that McKinney could conduct additional cross-examination with the benefit of this information. The district court refused to do this, apparently on the theory that the information contained in the C documents was not relevant unless and until the Government introduced evidence of the Standard Metals theft. 53 We agree with McKinney, however, that, in the two respects mentioned above, the C documents contain information bearing generally on McBride's credibility. Moreover, because the information was not disclosed until after McBride testified and because the district court apparently conditioned additional cross-examination on the development during rebuttal of evidence of the Standard Metals theft, McKinney effectively received this information at a point at which it was too late to do him any good at trial. 54 The conclusion that this material was effectively suppressed, however, does not end our inquiry. We can reverse McKinney's conviction on this ground only if the evidence was material in a constitutional sense. Assuming that this evidence was specifically requested by McKinney, we must reverse if the evidence "might have affected the outcome of the trial." United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976). Because there is substantial evidence supporting McKinney's conviction which in no way depends on the credibility of McBride and because McBride's credibility was effectively impeached by thorough cross-examination in which McBride's propensity to lie and to threaten people was fully explored, we are confident that utilization of the C documents during cross-examination would not have affected the outcome of this case. This conclusion also disposes of McKinney's claim that the Government knowingly allowed McBride to present perjured testimony. See Agurs, 427 U.S. at 103, 96 S.Ct. at 2397 ("conviction obtained by the knowing use of perjured testimony ... must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury"). 55 B. Refusal to Review In Camera the Government's File 56 McKinney claims that, following the disclosure of Brady material on October 19, the district court should have, upon his request, conducted an in camera review of the Government's entire investigation file. Although the court had previously reviewed specific documents from the Government's file, the court refused to undertake the blanket review requested by McKinney. 57 McKinney's argument is based entirely upon United States v. Gaston, 608 F.2d 607 (5th Cir.1979). In Gaston, the defendant sought disclosure of FBI reports of interviews conducted with Government witnesses. The Government acknowledged the existence of two such reports but maintained that they were not discoverable under either Brady or the Jencks Act. The district court refused to review the reports in camera and also refused to have them placed in the record for possible review on appeal. We held that, because the Government refused to produce documents that had been specifically requested not just for impeachment, but for possible substantive use, the district court erred in refusing to review them in camera. 58 McKinney asks us to extend Gaston and to hold that, at least where there has been a record of tardy Brady disclosures, the district court must, upon request, review the Government's entire investigation file. 59 We refuse to extend Gaston to that extreme. Gaston and the similar case of United States v. Diaz-Munoz, 632 F.2d 1330 (5th Cir.1980), involve the district court's refusal to review specific documents, the existence of which were acknowledged, for potentially exculpatory evidence. In this case, on the other hand, McKinney does not point to specific documents that may contain exculpatory evidence. Rather, he claims that the Government's tardy disclosure of some Brady documents justifies imposing upon the court the obligation to conduct an exploratory search through the Government's files for additional material. Although we do not condone tardy Brady disclosures, we cannot agree with McKinney that the Government's conduct in this case warranted such a procedure. 61 For the reasons set forth above, McKinney's convictions are AFFIRMED | |
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