VOLUME XX
Pages 4197-4445
{4197}
TUESDAY
MORNING SESSION
April 12, 1977
(Whereupon,
the following proceedings were had and entered of record on Tuesday
morning, April 12, 1977 at 9:00 o'clock, P.M. without the jury being
present and the defendant being present in person:)
THE COURT:
When we recessed last night there was one witness apparently left on the
offer of proof, Agent Wood.
MR. TAIKEFF:
Yes. And there would be a verbal offer with respect to the offer of proof
concerning the attorney, Marvin Amiotte, Your Honor may recall.
THE COURT: I
am wondering if we should interrupt the offer of proof and go on to other
matters so that the jury may be brought in.
MR. TAIKEFF:
Your Honor, it makes little or no difference to the defense. Whichever
schedule Your Honor prefers to follow.
THE COURT: How
much time would you anticipate it would take to present the testimony of
Special Agent Wood?
MR. TAIKEFF:
Trying to maximize my estimate so that I'm not wrong, I'd say about 30
minutes. Probably will be less but I think 30 minutes should be allowed
for it.
THE COURT: I
think we will interrupt the offer of proof then and go on to other matters
this morning and we'll work in the offer of proof perhaps after the jury
is excused {4198} for the day or sometime like that.
MR. TAIKEFF:
Would Your Honor allow me to bring a few matters to the Court's attention.
I think it should be taken up at this time. I won't take very long.
Concerning the subject of requested charge.
I would first
make inquiry as to whether the government intends to serve and file any
reply to our briefs?
MR. HULTMAN:
I'm not quite sure to what Counsel is referring, Elliot. Maybe you could
indicate which ones and I might be in a little better posture.
MR. TAIKEFF:
It's my understanding, I did not handle that portion of the case, it was
done by Mr. Engelstein and Mr. Nadler, but the defense has submitted its
own requested charge and in addition to which it has submitted two
memoranda, one in support of its proposed jury instructions and one
detailing specifically the basis for the opposition to certain government
charges.
The reason I
raise the request about a government response is because I wanted to ask
the Court to set aside some time so that Counsel could be heard and so the
Court could make its decision and advise Counsel because I think the final
preparation for the summation should reflect Your Honor's ruling with
respect to certain key and important instructions to the jury. That's the
reason why I bring it up now so that appropriate time can be set aside for
whatever has to be done.
{4199}
MR. HULTMAN:
In response, we have submitted our request, Your Honor, and we intended to
stand on that posture and not respond further.
THE COURT: It
is not your intention then to respond to the two memos that defense has
filed?
MR. HULTMAN:
It is not. It is not, Your Honor.
THE COURT: The
Court will allow time for oral argument on the points raised in defense
memorandum.
MR. HULTMAN:
We would intend to respond at that time, Your Honor.
THE COURT: I
would expect that. You do not intend to file a written response?
MR. HULTMAN:
Nothing further.
MR. TAIKEFF: I
assume Your Honor will make some provision to advise the Counsel of the
rulings prior to the time that Counsel has to make its final preparation
for summation so that arguments are not made which are inconsistent with
the view of the law that the Court will take to the jury?
THE COURT: I
will anticipate I would be able to rule immediately following the oral
argument.
MR. TAIKEFF: I
would assume that Counsel would then be given some time to reflect upon
Your Honor's ruling in terms of what has to be adjusted in the closing
arguments. That's the reason why I bring it up what may seem to be a
somewhat early time,so that there can be that period of {4200} reflection
without interfering or delaying the proceedings then.
THE COURT: I
recognize the problem. It has always been my practice to get into matters
of instruction until all the evidence is in so as far as Counsel are
concerned --
MR. TAIKEFF:
We have no objection to that. We wanted to be in a position to make an
early comment on the subject. Whatever the Court deems appropriate. As
long as we have a reasonable amount of time it is of no concern to us. We
didn't want the Court to feel that we brought the matter up in the
eleventh hour and 59th minute and thereby interfere with the Court's
anticipated schedule.
THE COURT:
What do you consider unreasonable time?
MR. TAIKEFF:
Overnight would be perfectly adequate, in fact quite adequate.
THE COURT: I
can see no problem with that request.
MR. TAIKEFF:
Thank you, Your Honor.
I'm wondering
whether the government has available for the defense the AR15 which was
recovered in Oregon. We intend to make use of that today.
MR. HULTMAN:
It is available.
MR. TAIKEFF: I
would just indicate that once the jury is brought in it would be
appropriate if it could be in the courtroom because we're going to offer
it in evidence.
MR. HULTMAN: I
would want to indicate on the record {4201} and undoubtedly we're going to
have some resistance. We'll have it available but I'm sure we'll have
resistance.
MR. TAIKEFF: I
certainly didn't mean by the government cooperating by bringing it here
had to waive any legal rights.
Your Honor,
there is something concerning Defendant's Exhibit 75 which in part is in
evidence and in part is merely marked for identification and I wanted to
take this opportunity to have a pre-offer ruling so as to eliminate legal
argument at the time.
Your Honor, I
have one more example of how fortunate we are to have Mr. Hanson watching
over us all. Apparently what was originally Defendant's Exhibit 75 for
identification, the entire 36 page 302 was modified by removing all pages
but pages 1 and 2 which are in evidence. So that should be reflected in
the record because I misspoke a moment ago.
MR. HULTMAN:
Which 302, Counsel, are you referring to?
MR. TAIKEFF:
Referring to the radio transmissions 302.
Your Honor, at
this time I would ask for a pre-offer ruling concerning an entry at 1:26
P.M. which is a transmission according to the entry on page 4 of that 302,
Adams to Coward.
{4202}
Now, your
Honor may not have the entire document; but I have a copy here and I can
hand it up to Mr. Hanson.
(Court
examines document.)
THE COURT: You
may proceed.
MR. TAIKEFF:
In reviewing the transcript in preparation for summation, it is rather
apparent that Agent Adams' position on the subject is that, "Yes, he did
make a transmission concerning a certain vehicle, but that occurred at
1:30," which he relates to certain events which occurred, namely, somebody
coming on the premises and then maybe a short time later, apparently under
the watchful eye of the law enforcement officers.
As the record
now stands, it could be argued more effectively by the Government than I
think they are entitled to argue, that there was only one transmission and
that a mistake was made by somebody somewhere, that didn't occur at 12:18
but it occurred at about 1:30.
As a result of
our anticipation that that kind of an argument will be made, or at least
could be made, we think it appropriate that we introduce into evidence
that particular transmission of 1:24 p.m., which is undoubtedly the
transmission that Adams speaks of as having been made at approximately
1:30.
However, with
both of them in evidence, namely, the 1:24 transmission and the 12:18
transmission, the argument {4203} becomes much easier for the defense to
make, and therefore, we would propose to offer that additional
transmission; or if the Government feels it appropriate, any additional
transmissions that should be offered along with it to supplement our body
of evidence for the purposes of making the argument outlined to your
Honor.
I think I may
have -- because I don't have the document in front of me, your Honor -- I
said 1:24, I think the time is 1:26.
THE COURT:
1:26 is the time.
MR. TAIKEFF:
Yes, sir.
That clearly,
I think, is the transmission which Adams was talking about when he made
reference to the 1:30 p.m. transmission.
MR. HULTMAN:
Counsel, is what you are indicating -- might I make inquiry, your Honor --
that the 1:30 testimony of Adams in effect is the 1:26 transmission, is
that what you are saying?
MR. TAIKEFF:
Yes.
MR. HULTMAN:
One and the same?
MR. TAIKEFF:
Yes, I believe indeed they are one and the same. There is also additional
testimony, as I recall from Adams concerning a person who arrived on the
scene, was apparently not a person who was suspect in any way because he
wasn't interfered with. He then left the scene {4204} shortly thereafter,
and that testimony was said -- or rather those facts were said to have
occurred at approximately 1:30.
At a different
point in Adams' testimony -- and I believe it was on cross examination --
he explained that he did make a transmission about a pickup, but it wasn't
at 12:18, it was at 1:30; and in fact he did, and that is the
transmission; but I think it important for the jury to see and for the
defense to have an opportunity to argue that there were separate
transmissions, and in fact there was one at approximately 1:30 as he
stated, but most importantly there was an additional one at 12:18; and if
the jury doesn't have before it evidence of the fact that there are two
separate recordations, then it leaves the Government in a position that
they should not be in to argue that the time was recorded incorrectly,
that there was only one transmission and there is a dispute about the
time.
MR. HULTMAN: I
don't see any problem, your Honor. It is my understanding that it is that
one line that you really want in; and if that -- I mean the time and what
follows, and if that is true, the Government has no objection to that,
your Honor.
I think the
rest of the page, as indicated, is not requested; and the Government would
concur that that time {4204A} and the info that does follow on that one
transmission would be included, we would have no objection.
THE COURT: m
at paragraph on Page 4 of what was originally marked Defendant's Exhibit
75 under the time designation of 1:26 p.m., which reads as follows: Adams
to Coward, south of Oglala, pickup came in here and he just left, can't
get any BIA people on it. We have, can you get on Channel 1 and tell them
to turn that tower on? -- will be admitted.
MR. HULTMAN:
Your Honor, when I do look at some of the other items now on the page, and
because there is another transmission at 1:31 which again includes Adams
and goes to some of what counsel is referring, I think it might be wise
and the Government would seek the whole page to come in. It might show the
sequence a little better.
(Counsel
confer.)
MR. TAIKEFF:
May I confer with Mr. Hultman for a moment? We might have a simple
mechanical solution.
(Counsel
confer.)
MR. HULTMAN:
Your Honor, I think now the Government and the defense are willing by
stipulation to enter the first four pages, and then everything will be in
sequence.
MR. TAIKEFF:
We are agreeable, your Honor; and may we suggest, if your Honor approves,
that we merely take Pages 3 and 4 and supplement the existing exhibit. The
{4205} record reflects, of course, what we are saying so there won't be
any confusion in that regard.
THE COURT:
Very well. On agreement of counsel Pages 3 and 4 will be added to Pages 1
and 2, and the four pages will represent Exhibit 75.
MR. HULTMAN:
Is that all, counsel?
MR. TAIKEFF:
There is only one other matter, and That is this, your Honor: Yesterday
afternoon your Honor asked counsel to come forward, and your Honor made
inquiries about certain witnesses for whom subpoenas had been requested,
and I understand from somebody in the defense team, were issued at
approximately 11:00 o'clock yesterday morning and then temporarily
recalled until your Honor had occasion to speak with counsel.
In reference
to one of those two witnesses, not the attorney, I advised your Honor that
that person was an alibi witness concerning the whereabouts of Jimmy Eagle
during the afternoon of June 26; and because of the events of yesterday, I
was not as cognizant of every factor as I should have been, and I said to
your Honor in view of your Honor's ruling on the Jimmy Eagle matter, I
conceded that it would not be necessary to call that person at this time.
However, in reflecting upon yesterday's activities in the evening, I
realized that a portion of Jimmy Eagle's testimony was heard by the jury,
namely, his specific claim {4206} that he was not there and that he was at
his grandmother's home.
Now, in regard
to that, there is a 302 which indicates an interview by J. Gary Adams and
Ronald W. Bienner, the gentleman who has been here assisting Government
counsel; and they interviewed that person, and that person told them on
November 13, 1975, that on June 26, 1975, she was at the residence of
Jimmy Eagle's grandmother, Gladys Bisenet, and Jimmy Eagle was at the
Bisenet residence all afternoon and that Eagle was there visiting his
grandfather.
Now, it seems
to me that in view of the fact that Jimmy Eagle has testified that he
wasn't there, until and unless we are reasonably certain that the
Government isn't going to take a contrary position in argument, we should
be allowed to introduce that testimony.
Now, if Mr.
Bienner would take the stand or the Government would make a concession or
a stipulation concerning this interview, we can avoid the necessity of
sending for her on the Reservation; but I think in some way the defense
should be made secure that the issue of Jimmy Eagle's presence is not in
dispute, and if it is, then I think we should be entitled to call that
alibi witness and any other alibi witnesses that we have because that is a
matter for the jury's consideration.
{4207}
MR. HULTMAN:
Your Honor, we come back to the basic proposition. The Government has not
introduced any evidence of any kind concerning Jimmy Eagle. It's only the
defense that has, and that evidence has been that he was not there. And
the Government does not contend in any way, hasn't, isn't nor will they in
the future of the rest of the trial. So a gain it would seem to me that
the matter we're now discussing is totally irrelevant in any way.
MR. TAIKEFF:
Well, I'm wondering whether there's some method of making that position
known to the jury. I think we're entitled to make that known to the jury
without making any big fanfare out of it.
THE COURT:
Well, as I understand --
MR. HULTMAN:
It's not a relevant matter.
THE COURT: As
I understand counsel for the Government is not going to argue and not
going to contest it in argument that the fact of Jimmy Eagle's presence or
nonpresence; is that right?
MR. HULTMAN:
That is correct, Your Honor.
THE COURT:
That is what I understand him to say.
MR. TAIKEFF:
Well, I would ask at the very least if the Government is not prepared to
make the statement for the jury that it is just made to the Court, and I
understand the clear difference between what one says on oral argument and
what one says for purposes of evidence. Perhaps the Government {4208}
would stipulate that if called Hazel Shields would testify in accordance
with what I read from this 302.
MR. HULTMAN:
No. The Government will not because the Government resists, Your Honor,
that this has no relevancy. That's the reason why I'm not willing.
THE COURT: I
think as far as the Court is concerned we'll resolve this by the Court
will receive that exhibit on the offer of proof. I see no reason to make,
put it in the put it in the case.
MR. TAIKEFF:
But the evidence was heard by the jury, that part of it.
THE COURT: The
evidence that the jury heard is the testimony of Jimmy Eagle that he was
not there. The Government has just said they're not going to contest that
or even argue adverse to that.
MR. TAIKEFF:
All right.
THE COURT:
This would simply be cumulative.
MR. TAIKEFF:
All right. That's acceptable to us, Your Honor. We'll take an appropriate
position before the jury on that particular subject.
MR.HULTMAN: Is
counsel now completed?
MR. TAIKEFF:
Yes.
MR. HULTMAN: I
have just one item, Your Honor, and I'm not set to argue it and I don't
request time of the Court. I want to save time.
{4209}
Yesterday it
was brought to my attention that a William Muldrow will be called as one
of the names given to me. And so I want to, on the record, place my
objection to that testimony, and I think I can do it far quicker by
putting it in writing instead of standing up and discussing it, and so
that's the purpose. And part of the motion, and as a part of our Motion in
Limine.
THE COURT:
Defense have a response to --
MR. TAIKEFF;
Your Honor, I have not had an opportunity to examine the papers except I
can say this in response: That Mr. Muldrow is going to be called for a
limited purpose, and that is concerning the events and his observations of
condition on the reservation in the days immediately following June 26th.
And --
THE COURT: And
that is relevant to this case in what respect?
MR. TAIKEFF:
That is relevant as rebuttal evidence to the Government's evidence and
theory that the defendant's flight from the reservation and his going to
Canada was a reflection of his guilty knowledge. And as we've previously
indicated to Your Honor there was another reason for his flight which had
nothing to do with any guilty knowledge, and this is evidence of what
prompted him to leave and go to Canada.
MR. HULTMAN:
Your Honor, there is no showing of any kind in this record as to when the
defendant did leave. And {4210} if counsel is willing to stipulate that
into the record then maybe there's some basis that we would have some
argument But as it stands right now there's not any showing in this record
as to when this defendant did leave.
We know at a
certain time he was in Oregon, but that's, and the record shows, at least
it's arguable of course, but there is evidence in the record that shows he
was there on the 26th and then he's in Oregon. But there's no showing as
to how long a period of time or how long a time he was on the reservation.
But the point
I wish to make is I have outlined, I won't argue, is simply what I've said
on a page and a half; and the rest of it, Elliot, is the report itself
with which I'm sure you are familiar, and that's probably what he's going
to testify to. And secondly, his testimony at the last trial which you've
had a copy of. So the only parts of this that are new to you is the page
and a half that I've set out as my basis for it being relevant.
MR. TAIKEFF:
Well, I have to admit that I did a sloppy job on Mr. Muldrow's
preparation. I didn't read his testimony from the last trial and I didn't
read his report because I interviewed him and planned to call him on one
point only, and that is the observations he made and the conditions which
existed in the days immediately following June 26th. And I don't intend to
go into the other areas which {4211} perhaps are the areas that the
Government objects to.
But to answer
the first point that Mr. Hultman made, as a general proposition his point
is well taken. What he overlooks is that in the record there is testimony
by Jean Day that she met with the defendant in the Pine Ridge area after
the funeral of Joe Stuntz, which she thought was on July 2nd. So they met
on July 3rd or July 4th. That means, I think by reasonable inference, that
he continued to be on the reservation until at least July 4th which is
approximately a week after the event, and it is that period of time that
Mr. Muldrow is going to testify about.
THE COURT: And
I presume from what you have suggested that his testimony will be somewhat
cumulative of other testimony that you've put in so far as the number of
agents on the reservation, the fact that there was armored personnel
carriers on the reservation and helicopters.
MR. TAIKEFF:
He's not going to testify to that fact, but he's going to testify to the
atmosphere which was in fact created as a result based on his own
observations and interviews. Because he went there to make an official
government study of the conditions. And as part of that testimony he
forges the last link in that chain of evidence as to what was the
widespread result and reaction of the community to what was happening.
Because we have to show besides his mere presence, although I think we
could argue reasonably that his mere {4212} presence would reveal to him
much of what was going on, but we have to show, because of other
testimony, that people came to speak with Leonard.
Jean Day
testified that there were other people present and there was discussion
about the advisability of staying and whether he should go and why he
should go. Mr. Muldrow will establish, based on his own observations and
his own official status there as a government official what the reaction
was, what the widespread community reaction was and how the residents
responded to what went on.
Now that we
have what went on in the record his testimony supplements that. It is not
cumulative of that.
MR. HULTMAN:
Your Honor, might I just respond with one sentence. It appears to me then
what counsel is referring to is the testimony that has to do, or
summarized by the inner-office memorandum of July 9th, and is not the one
in January, February, nine months later. As to that again, Your Honor, I
would say all of that discussion and those observations are clear hearsay,
that they are biased, a one-sided examination and that if the Court will
look at that particular exhibit which summarizes what I expect then his
testimony to be as indicated I think you can understand the position of
the Government with reference to his testimony.
{4213}
THE COURT:
It's not my understanding that you were intending to offer any specific
reports.
MR. TAIKEFF:
Your understanding is correct if Your Honor thinks I'm not going to offer
any reports.
MR. HULTMAN:
Your Honor, what I'm saying is that report summarizes all that he's going
to testify to. These are the things, am I not correct, Counsel, that
basically what he says in the interoffice memo is what you're going to
elicit from him from the stand and not put the report in but elicit the
same thing from him from the stand?
MR. TAIKEFF: I
think there is a lot in the report that has nothing to do with the
questions I'm going to ask him so I would have to answer your question in
the negative. No. I do not intend to elicit those things.
MR. HULTMAN:
I'm going to continually object, Your Honor, to any hearsay. What his
observations may have been is one thing but if he saw something and that
is relevant, then that's one thing but I'm going to continue to object to
a line of hearsay that is a kangaroo court session which obviously by the
reading of this report, and that's the part to which I'm going to object
to.
MR. TAIKEFF: I
don't intend to adduce any hearsay and I trust the government will have an
adequate opportunity on cross-examination to establish any bias on the
part of this witness who is a federal government employee.
{4214}
THE COURT:
Well, you will be permitted to put the witness on the stand and I will
rule as may be required by the issues that may arise during his testimony.
MR. TAIKEFF:
Thank you, Your Honor. Pursuant to Your Honor's earlier suggestion that
one page 302 of Messrs. Adams and Biner has been marked Defendant's
Exhibit 218 and I'm lodging it with the Clerk as part of the offer of
proof.
THE COURT:
Exhibit will be received on that ground.
May we now
bring the jury in?
MR. TAIKEFF:
Yes, Your Honor.
MR. HULTMAN:
Yes, Your Honor.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT:
Members of the jury, you have been kept waiting for a considerable period
of time yesterday and for a short period of time again this morning and
you may have some additional periods this week when you will again be kept
waiting but I do want to give you this assurance, that these periods when
you have been kept waiting will not result in lengthening the trial.
MR. TAIKEFF:
Your Honor, the defense calls William Muldrow.
WILLIAM
MULDROW,
being first
duly sworn, testified as follows:
MR. TAIKEFF:
May I inquire, Your Honor?
{4215}
THE COURT: You
may.
DIRECT
EXAMINATION
BY MR. TAIKEFF:
Q Mr. Muldrow,
where do you reside?
A In Denver.
Colorado.
Q Could you
possibly move that microphone a little closer to yourself so it can pick
up your voice. You don't have to lean over in the direction of the
microphone though. By whom are you employed?
A By the
United States Commission on Civil Rights.
Q For how long
have you been in that particular occupation?
A Three years.
Q What's the
total number of years of government service you have had?
A Three years.
Q Just in that
job?
A Yes.
Q What's your
educational background?
A I have two
Bachelor's degrees from the University of Colorado in engineering and
business administration. I have a masters degree in sociology from
Princeton Seminary, a Masters Degree in theology from Princeton Seminary.
I have three years work towards a PhD in social cultural anthropology from
Indiana University.
Q Prior to the
time that you became an employee of the United States Government, what
sort of work did you do?
{4216}
A I worked
immediately prior to being employed by the government for the United
Presbyterian Church of the U.S.A. in coordination with the government of
Ethiopia doing research and community development work in small tribal
works in that country.
Q Did you have
occasion in 1975 to do any work in your official capacity on the Pine
Ridge Reservation?
A Yes, sir. I
assisted in an investigation, the commission did, of the election which
had occurred the previous year, tribal election on the Pine Ridge
Reservation for the presidency of that tribe, a contest between Richard
Wilson and Russell Means.
Q Now in the
summer of 1975 did you find yourself on that reservation, that's almost
two years ago?
A Yes. I was
on the reservation during that summer and also a number of occasions in
the months prior to the summertime.
Q Are you able
to tell us the dates in either June or July, 1975 that you were on the
reservation?
A In 1975? I'm
sorry, I can't give you the exact date. I don't have that at my
fingertips. It was about three days after the shooting of the FBI agents.
Q If I told
you that it is an uncontested fact that the agent lied on June 26th, 1975,
does that help in any way to pinpoint the date?
A That would
have placed me there on June 29th and for the {4217} succeeding three or
four days.
Q So that you
were there in the early part of the month of July?
A That's
correct.
Q Now, first,
I want to ask you about observations which you made with your eyes. What
places on the reservation did you go to in the days that you were there
beginning on June 29th?
A I visited
throughout the reservation area extensively, including the town of Pine
Ridge, the tribal offices, the BIA governmental offices there. I visited
the site of the shootings where the two FBI agents and the native American
man were killed. I visited various families and persons throughout the
entire reservation.
Q By the way,
other than the clusters of population in the towns or hamlets or villages,
are there residential facilities in between these places on the
reservation?
A There are
individuals who live in very isolated situations yes, remote from the
villages on the reservation and little homesteads or individual houses
throughout the reservation.
Q As a general
rule, though, how would you describe the area in terms of its vastness and
how populated it is outside the immediate clusters which are the little
villages?
A General
impression one gets when visiting the reservation is extreme isolated,
barren area. The population is very sparse {4218} in terms of the
tremendous size of the reservation. There are clusters of government
houses where people do live in close proximity, but by and large the
families are scattered very long distances apart throughout the
reservation.
Q Now, sir,
during the period that you were there beginning June 29th, did you see any
people who you believed to be or knew to be agents of the Federal Bureau
of Investigation?
A Yes, I did.
And I talked with several of them.
Q Generally
how were they dressed?
A Most of the
ones that I was able to identify were dressed in combat fatigues,
camouflaged combat fatigues.
Q What sort of
equipment did you observe was being carried, if any?
A Many of them
carried rifles, some of which appeared to me to be automatic rifles. There
were a great number of military type vehicles, too, in evidence throughout
the reservation.
Q What do you
mean by military type vehicles?
A Jeeps and
other vehicles with military markings on them.
MR. TAIKEFF:
May I have one moment, please, Your Honor.
Q (By Mr.
Taikeff) I place before you Defendant's Exhibit 206 in evidence and ask
whether you saw any objects such as the object depicted in that photograph
on the reservation in July of 1975?
A This appears
to be an armored carrier of some kind, and {4219} it's my recollection
that I did at that time see a vehicle similar to this on the reservation.
Q Now I show
you Defendant's Exhibit 200, 201 and 204, all in evidence, and I ask you
whether the manner of dress of the people in those photographs is
consistent or inconsistent with what you observed in connection with the
sightings of the FBI personnel?
A Yes. The
fatigue uniforms that these men are wearing are not camouflaged; many of
the ones that I observed were, did have camouflage markings on them, but
there were many others that did not.
Q What would
you say was the total number of individuals from the FBI that you
personally saw during your stay?
A It would be
very difficult for me to estimate a number. all I can say is that they
were quite in evidence both in Pine Ridge and other parts of the
reservation I visited. I'm not sure how many there would have been but
there were quite a number of them.
Q Do any of
the photographs which are before you show any kind of shoulder weapons?
A Yes, they
do.
Q And I also
place before you Defendant's Exhibit 203 in evidence, calling your
attention particularly to the person on the right-hand side of the
photograph and the object in that person's right hand. Now with respect to
that photograph, and I {4220} notice that you separated out these two, am
I correct?
A Yes.
Q That would
be Exhibits 200 and 201. What relationship, if any, is there between the
weapons depicted in those photographs and the weapons you say you saw?
A I couldn't
say definitely that these were the specific types of weapons I saw. I do
recall at the time that I was rather surprised to see such a number of
shoulder weapons being carried and I noted, I remember noting that some of
them appeared to be automatic weapons. I can't say that these particular
weapons are the ones that I saw.
Q Now, sir,
did you have occasion in the course of your work to speak with residents
of the reservation?
MR. HULTMAN:
Your Honor, I'm going to object to any further responses in this area on
the grounds of clearly hearsay. It's not relevant and there has been
proper foundation.
MR. TAIKEFF:
Your Honor --
THE COURT: The
question that was asked, the objection to the question that was asked is
overruled.
Q (By Mr.
Taikeff) You may answer, sir.
A Yes. I did
speak with quite a few residents of the reservation.
Q Now briefly
and without getting to any responses or contents, what connection if any
was there between your official {4221} governmental purpose in being there
and speaking with residents of the reservation?
Do you
understand how I want to limit your answer at this time for legal reasons?
I don't want you to tell us anything you heard, I only want you to answer
questions about your activity versus your official function.
A I was there
under instructions from my supervisor who was responding from the various
requests that the Commission had received for them to do, make an inquiry
into activities of the FBI on the reservation following the shooting of
their two agents at that time. Many of the complaints --
MR. HULTMAN:
If it please again, Your Honor, I want this --
MR. TAIKEFF:
Don't --
MR. HULTMAN:
-- witness to know very-clearly, and he's a learned man, we only want
what's responsive to the question and not get into what other people have
told him.
MR. TAIKEFF:
Let me narrow it down, if I may ask a somewhat leading question.
Q (By Mr.
Taikeff) Did you speak with people on the reservation because that was
part of what you went there to do?
A Yes, I did.
Q Now as a
result of speaking with people, and how many different people did you
interview?
A I can't give
you an exact number at this moment, but it {4222} probably was between 30
and 40 people.
Q And in which
community?
A In several
of the communities in Pine Ridge, Oglala, Allen, Porcupine, various
communities around the reservation.
Q Now as a
result of speaking with these people concerning the events which were then
occurring on the reservation, did you gain any impression as to what the
reaction to the community at large was to the events which were occurring,
Yes or no?
A Yes.
Q Can you
summarize for us based on your own observations and your professional
standing --
THE COURT:
Before he answers --
MR. TAIKEFF:
I'm not going to have him answer, I'm just going to put the question.
MR. HULTMAN:
Your Honor, I would interpose the objection I interposed just a moment
ago.
THE COURT: I
understand your objection. I'll let you finish the question.
Q (By Mr.
Taikeff) Do you understand, sir, there may be some legal discussion after
I asked the question. Don't answer it until I finish the question and
until the judge gives you a signal to answer.
A Would you
repeat the question.
Q I will. I'll
start at the beginning.
{4223}
Based on your
observations on the reservation at that time and upon the interviews that
you conducted amongst the residents in several locations on the
reservation, did you gain an impression as to what was the general
community reaction to the events immediately following June 26th, 1975?
I'm looking for a yes or no answer.
MR. TAIKEFF:
May he answer that question, Your Honor?
{4224}
THE COURT:
Yes, but then I am going to require an additional foundation before you
get into it.
MR. TAIKEFF:
Yes, sir.
Q (By Mr.
Taikeff) Would you tell us whether --
A
(Interrupting) Yes, I believe I could. I did form some impressions.
MR. HULTMAN:
Now, I would interpose my objection, your Honor.
THE COURT: The
additional foundation that I would require at this time before ruling on
it is -- the witness has testified that he visited 30 or 40 different
people -- now, I would like to know what class of people, whether they
were officials, whether they were --
MR. TAIKEFF:
(Interrupting) I understand, your Honor.
THE COURT:
(Continuing) -- natives living out in the sparsely populated areas, or
just what the type and groups of people were that he visited with.
Q (By Mr.
Taikeff) Do you understand what his Honor is interested in learning from
you?
A Yes, I do.
Q Would you be
kind enough to tell him and the jury?
A I talked
with tribal officials including the tribal president, members of the
tribal council. I talked with officials of the Bureau of Investigation, I
talked with, as I indicated, {4225} FBI Agents who were standing around in
Pine Ridge, I talked with members -- residents of the Reservation in a
variety of living situations.
Q Native
American people?
A Native
American persons. I talked with reporters and photographers from a variety
of news media who were present there.
I talked with
members of the Bureau of Indian Affairs police. I tried, in other words,
to talk with representatives of most segments of the community at that
time.
Q Now, the
impression which you say you have concerning the general community
reaction, is that based upon all of the things I which you heard and
learned from speaking to all of those categories of people?
A That's
correct, yes.
Q Now, don't
answer the next question until his Honor rules on it.
What is your
impression of the general community reaction to the events immediately
following June 26, 1975?
MR. HULTMAN:
Again I renew my objection, your Honor; and furthermore, specifically in
addition to the reasons that I have stated, hearsay, foundation, relevancy
on the basis that that in no way indicates or in any is relevant to what
the Defendant in this case -- posture was with relationship to that on
that day.
{4226}
THE COURT: The
objection is overruled. The answer of the witness will be received on the
issue of whether or not the Defendant fled the Reservation to avoid
prosecution.
MR. TAIKEFF:
Or for some possible other reason?
THE COURT: Or
for some possible other reason, that is right.
MR. TAIKEFF:
Yes, sir.
Now you may
answer my question.
A Based upon
my observations and conversation with persons at that time, in contrast to
previous visits in the months prior to that time, with persons on the
Reservation, it was obvious that there was a climate of extreme tension,
emotions were running very high, many persons were frightened for their
own safety and for the safety of their family. They were concerned as to
whether they would be stopped, questioned, in general there was a high
level of fear and tension on the Reservation.
MR. TAIKEFF: I
have no further questions.
CROSS
EXAMINATION
By MR. HULTMAN:
Q I believe I
just have two questions, Mr. Muldrow. The first one is: Do you then see
anything unusual about law enforcement officers, after there has been a
death in which two individuals who are law enforcement officers -- one,
you {4227} don't know anything about what happened on that day -- maybe I
ought to establish that foundation -- isn't that correct, you weren't
there on the 26th?
A I was not
there personally.
Q Now, I am
going to show you some photographs which have been entered in evidence
here as Government's Exhibit 59, and just have you take a look at those
for just a second (indicating).
A (Examining).
Q And ask you
whether or not you see anything unusual about the fact that if two agents
were found in this kind of condition, brutally killed, anything unusual
about a manhunt then following to try and find those who had committed the
crime?
A I would see
nothing unusual in launching a manhunt.
I think the
thing that perhaps at the time I felt was highly unusual was the large
force of armed men which were present there and the number of vehicles
which were in evidence. I think this too was a major concern of the
residents of the Reservation.
Q You have
gone on beyond my question in your response, but that's fine.
A I am sorry.
Q Have you
ever seen, have you ever been placed in that set of circumstances before
or since?
A Following a
murder, you mean?
Q Yes, a
murder, two deaths of this kind and nature.
{4228}
A I have never
been in a similar circumstance as that particular one, no.
Q So you
wouldn't have any basis to draw any conclusions, then it would be fair,
would it not, that there was nothing necessarily unusual about it?
A Well, I just
--
Q
(Interrupting) Answer my question "yes" or "no" if you can.
A I don't
think I can answer "yes" or "no".
Q Give me the
best you can then, fairly and squarely.
A It was my
impression at the time that I was very surprised and startled at the size
of the force.
Q Now, this is
after the 26th of June, right?
A That's
correct.
Q You are not
saying that this force was there on the 26th or before the 26th of June?
A No, sir.
Q All right.
Now, I just have one other question: In response to, I believe, the last
question of counsel or maybe the next to the last question, you said in
response to that question -- and I know the first two words are correct, I
am not sure of all that followed -- but you said in contrast you found at
the time you were there and the things I have just queried you about, a
climate of extreme tension and so forth.
Now, what did
you mean by "in contrast", were you comparing {4229} that time to some
conditions that you observed prior to that time?
A I had been
in close contact with the Reservation for the previous six months
actually, and we had been concerned about the rising climate of fear and
tension on the Reservation; but during my visit following the June 26th
shooting, it was obvious that this climate, this tension and fear, was
much greater than it had ever been before in my observation.
MR. HULTMAN: I
have no further questions, thank you.
MR. TAIKEFF:
No questions. The witness may be excused if the Court please.
THE COURT: You
may step down, and you are excused.
THE WITNESS:
Thank you.
(Witness
excused.)
(Counsel
confer.)
MR. TAIKEFF:
Defense calls Special Agent Coward.
Your Honor,
while the witness is being advised of his appearance, I would like to note
for the record that Defendant's Exhibit 75 in evidence, which is a portion
of the 302 concerning recordation of certain radio transmissions, or
relating to the subject of certain radio transmission, has been expanded
by consent of counsel for both sides to now include Pages 3 and 4, so that
Defendant's Exhibit 75 consists of the first four pages of Special Agent
George O'Clock's 302; and with your Honor's {4230} permission, I would
like to read one entry from the fourth page to the jury.
THE COURT: The
record may show that the additional two pages have been added to that
exhibit, and you may read the entry that you refer to.
MR. HULTMAN:
The Government has no objection.
MR. TAIKEFF:
Thank you.
The entry
reads as follows: 1:26 p.m. Adams to Coward, south of Oglala, pickup came
in here and he just left, can't get any BIA people on it. We have, can you
get on Channel 1 and tell them to turn that tower on?
That's the end
of the entry, your Honor.
FREDERICK
COWARD, JR.,
having been
previously duly sworn, resumed the stand and testified further as follows:
MR. TAIKEFF:
Your Honor, may the witness be advised that he continues to be under oath
from his earlier appearance?
THE COURT: The
witness is so advised.
DIRECT
EXAMINATION
By MR. TAIKEFF:
Q Agent
Coward, I am placing before you a single sheet of paper which has been
marked Defendant's Exhibit 219 for identification. I am also placing next
to that piece of paper a pile of documents which I think you will
recognize as being {4231} a number of 302's.
Now, sir, in
connection with the piece of paper, the single piece of paper -- do you
wish to look through those 302's?
A I will wait
if you wish.
Q Go ahead and
do that. It may be helpful if you do that right away.
A (Examining).
Q Now, you
recognize that the pile of 302's concern this case, correct?
A Yes, sir.
Q And they are
302's of yours and three of your colleagues, namely, Adams, Waring and
Skelley, is that right?
A Yes, sir.
Q Now, with
respect to yourself, there is a copy of your 302 in that pile, is that
correct?
A Yes, sir.
Q And that 302
in essence covers the events, or at least your main report concerning the
events of June 26th, is that right?
A That's
correct.
Q And on the
face of that report, it shows that the date of interview, which also means
date of event, as June 26th?
A I believe
so. (Examining) Yes.
Q And date of
dictation, June 30th?
A Yes, sir.
Q And date of
transcription or typing, July 3?
{4232}
A That's
correct.
Q All 1975?
A All 1975.
Q And the
typist apparently was a person with the initials "p.m."?
A Yes, sir.
Q Now, will
you look at the marked exhibit and tell me whether that chart lists your
name, a fair description of what that 302 generally refers to, and the
date of interview, date of dictation, date of transcription and the
typist's initials accurately?
A (Examining)
Yes, sir, it does.
Q O.k. Now,
you find entries, do you not, for Gary Adams, Fred Coward -- you are Fred
Coward -- Gerard Waring and Edward Skelley?
A Yes, I do.
Q And you have
six additional 302's other than the one which is your own 302, about the
events of June 26th. Would you check them to see that the corresponding
entries on the marked exhibit are accurate?
A Well, there
is five to begin with that I have here in front of me other than mine.
Q Other than
yours?
A Yes, sir.
Q You have two
of them for Gary Adams?
{4233}
A (Examining)
Two of Gary Adams'.
Q All right.
Would you check the information on those against the entries on the marked
Exhibit, please?
A (Examining).
Q May I
conclude from the nod of your head that you find those entries to be
accurate?
A Yes, they
are.
Q O.k. Now, do
you find -- by the way, before we go -- well, I don't mean to retard your
looking in any way.
The next
person is Waring, do you find two 302's relative to Waring's activities?
A Well, I can
see one, and then here is another one where he is combined.
Q Yes, where
he is combined with other agents, a so-called crime scene examination is
what I am talking about.
A O.k.
Q All right.
Would you check the entries on the marked exhibit with respect to Agent
Waring for the particular category of information I have mentioned?
A (Examining).
MR. SIKMA:
Your Honor, may I inquire, is counsel talking about the particular
information concerning the dates or all of the information in all of these
various 302's?
MR. TAIKEFF:
No. The piece of paper which is before {4234} the witness, your Honor,
lists -- the document is broken down into four categories by name of
agent, and then describes in the most general terms the subject matter,
the overall subject matter, the date of interview, the date of dictation,
the date of transcription and the typist; and the witness has thus far
said that the entries are fair representations of what the reports show,
and I am almost finished going through the chart with him.
THE COURT:
Very well.
A (Examining)
O.k., as far as Waring they appear to be like you have it on the sheet.
Q (By Mr.
Taikeff) O.k. Now, Waring's crime scene, 302, which is the second one
listed for him, other than the exhibits which are attached, is a four
page, single-spaced report, is that correct, or 302, if you prefer?
A Which one
are you saying again, please?
Q That's the
Waring, so-called crime scene, 302.
A Crime scene,
o.k. (Examining) I understand, how many pages is it?
{4235}
Q It's a four
page single-spaced plus exhibits which are attached?
A Plus
exhibits, yes, sir.
Q Okay. Now,
that leaves only Agent Skelly and you should ave two, 302's relating to
Skelly's activities?
A Two? I have
one
Q All right.
Is that a multipage report or a single page report?
A Well, the
one that I have in front of me -- oh, here's another one. It's two.
Q Right. Now,
will you check those entries.
A Yes, sir.
Q Accurate on
Defense Exhibit 219 for identification as to the information shown?
A Yes, sir.
Q Thank you
Now, sir, I would like to have you direct your attention to the subject of
the sightings made at a distance from near Highway 35. Do you recall that
involves one way or another with you and a BIA officer by the name of
Stoldt?
A Yes, sir.
Q Now I'm
showing you Defendant's Exhibit 195 for identification which is a one-page
302 which reports in substance Stoldt telling you that he saw Jimmy Eagle.
A That's
correct.
Q And that's
the report that you testified earlier, although {4236} it says date of
interview June 28th, it was really June 26th?
A That's what
I remembered.
MR. SIKMA:
Your Honor, I would object to this line of questioning as having been gone
into extensively on cross-examination of this witness.
MR. TAIKEFF:
That was a foundation question, Your Honor.
MR. SIKMA:
Case in chief and notwithstanding the fact that it's a foundation question
it's the same area of inquiry.
MR. TAIKEFF: I
don't think that's in dispute, those facts. I was just laying the
foundation so that the subject matter would be clear to the jury.
THE COURT:
Proceed.
MR. TAIKEFF:
Thank you.
Q (By Mr.
Taikeff) Now, are you certain that you obtained that information from BIA
Officer Stoldt when you were talking informally in an automobile in which
you were riding together in the latter part of the day?
A Well, as
I've stated before that the information contained in this 302 was a result
of a brief conversation that Marvin Stoldt and I had along with Vincent
Breci on our way back to the Harry Jumping Bull residence after, you know,
our situation that day.
Q Okay.
Everything that you say is clear except the one thing {4237} you didn't
specifically confirm which is the thing I was asking you about, is: Was it
in a car that you were all together?
A Oh, yes.
Yes, absolutely. And you are sure of that, as sure as you can be from your
memory?
A As sure as I
can be from my memory.
Q Okay. That's
what I wanted to find out. Now, sir, I'm going to place before you
Defendant's Exhibit 194, part of which is in evidence now and can be
referred to by reading aloud if necessary. However, I wish to caution you
that the part of it which is in evidence begins here (indicating) next to
that little blue dot at the bottom of page 3, and continues down to this
blue dot (indicating) near the bottom of page 4, and only those three
paragraphs are in evidence.
A Do you want
me to read those?
Q You can look
at them to refresh your recollection concerning that report. I would like
to just make sure that the jury understands that this is a report of an
interview you conducted of Marvin Stoldt on or about September 4, 1975.
And that, by the way, was the second time that you ever spoke to him in
your life?
A Oh, that's
not true.
Q On the
subject of identifications?
A On the
subject of identifications, yeah.
Q Okay. Good.
Just so the jury knows which report we're {4238} referring to.
A Okay.
Q Now, sir, on
page 4 of that exhibit the first full paragraph, the first sentence says:
"Stoldt stated that during the first statement he had given to the FBI a
few days after the shooting of the agents he told the agents then, one of
the agents being Agent Coward, that he saw Jimmy Eagle in the group that
he had just identified but was not absolutely positive during the
interview."
You dictated
those words, did you not, to the stenographer who eventually typed this
report?
A I did.
Q And
presumably he or she typed what you dictated?
A Yes, sir.
Q And then you
initialed the report as being accurate as far as you could tell at that
particular time?
A To the best
of my knowledge, yes.
Q Yes. Well,
can you offer us some explanation as to why your report in September makes
reference to a statement Stoldt purportedly gave to the agents, including
you, "a few days after the shooting".
MR. SIKMA:
Your Honor, I believe this matter was covered in cross-examination of this
witness at length. I think it was in pages of the transcript from 1209 to
1369. This witness was cross-examined at length about this. It's {4239}
totally repetitious and irrelevant.
MR. TAIKEFF:
Your Honor, this is the first time I've been able to read to the jury
because it's the first time we've had in evidence the actual text of that
paragraph. And now we've had the testimony of Marvin Stoldt, and under the
circumstances I think it appropriate for this question to be put to this
witness at this time.
THE COURT: I
will allow this question, but I'm not going to allow you to go through the
same material that we went through --
MR. TAIKEFF: I
have no intention of doing that, Your Honor.
THE COURT:
Very well.
A Well, the
only answer in reading this that I can give is that it's a mistake that I
made based on what I'm reading here, and the only explanation that I can
give is that when I prepared this 302 I would have gone back to the other
302 that was dictated the 28th and used it for purposes of putting down
the information on the paper.
Now, as I sit
here and tell you the only two times that I ever discussed this type of
situation with Marvin Stoldt was on the day that we drove back from the
Jumping Bull's and the day that he came in the office.
Q (By Mr.
Taikeff) So if I understand what you are saying you had reference to the
earlier 302 which is Defendant's {4240} Exhibit 195 for identification and
that sort of mislead you into what went into the second 302 because of the
error which is in the lower left-hand corner of that exhibit, am I right
about that?
A Well, what
I'm saying is that to refresh my memory, you know, of a particular time we
discussed there's so many things happened, you know, different times that
we're talking to people and that I would have gone to the file and used it
as a reference, yes.
Q Well, as a
general rule would you say that if you experience something that your
memory as a general rule is better close to that event than further from
that event?
A Well, it
depends. It depends --
Q But
generally speaking, is that not your experience with your own memory?
A With my
memory, it is, yes, sir.
Q All right. I
think we probably all have the same experience, don't you?
A Yes.
Q Now, when
you were talking with Stoldt in September, that was a little more than two
months after the event, if you made any reference to your 302, explain why
you did not recognize the error of the June 28th, only two months later,
considering the fact that in this courtroom you instantly recognized that
fact and said, "Oh, that date is wrong, that couldn't be the 28th".
{4241}
A Well, the
only way that I recognized that is because of the fact that some things,
some impulsive thing that you asked me a few weeks ago about this, you
know, it triggered my memory, it refreshed it.
But to say
that I would have had the same response, or the same feelings the day I
interviewed him I couldn't say that. I mean, certain things will trigger
it.
But as I sit
here and tell you now the only two times I've discussed this with Marvin
Stoldt was on the day we came back and the day that he came in, and that's
the truth.
Q This second
sentence of that paragraph which concludes the paragraph says: "Stoldt
continued and stated, but since then I have continually thought about what
happened on June 26, 1975 and at this time and during this interview he
was positive in his own mind that Jimmy Eagle was the individual that was
running behind the person who appeared to be Leonard Peltier."
Now, what I
want to know is, is there any kind of administrative or typographical
error here or did Marvin Stoldt on September 4, 1975 tell you in words or
in substance that he was positive in his own mind that Jimmy Eagle was the
person he sighted?
A Well, I
asked him that question and he said he was positive.
Q You
previously told us, and in reference to Defendant's Exhibit 92 for
identification, that you signed an affidavit concerning the sighting. Do
you recall that?
{4242}
A Yes, sir, I
did.
Q Did you have
anything to do with preparing Defendant's Exhibit 109, a similar type
affidavit on the same subject signed by Marvin Stoldt?
A None
whatsoever.
Q Do you know
anything about the preparation or the existence of that second affidavit,
Defendant's Exhibit 109?
A I only know
it because of what you mentioned last week.
Q Now, you
were in the --
MR. SIKMA:
Your Honor, I would object to this line of questioning. It's clearly
repetitious. This is the same thing we went over the last time this
witness was on the witness stand. He's just stated in his foundation that
he knows nothing about it I object to any further questions along this
line.
MR. TAIKEFF:
Your Honor, I have to lay some foundation so as I cover each point the
jury has some idea of what the subject matter of my inquiry is. That's the
only reason I do this. I acknowledge in answering --
MR. SIKMA: I
would appreciate being able to go to the bench at this time.
MR. TAIKEFF:
After the Government makes its objection then my statements have to be at
the sidebar.
MR. SIKMA:
Your Honor, I object to this.
MR. TAIKEFF:
Your Honor, I acknowledge, when I ask my {4243} questions that we had gone
over it before, only to set the stage for the inquiry. And I think that's
appropriate so the jury will know what I'm talking about.
MR. SIKMA:
Your Honor, my request to go to the bench?
THE COURT: You
may come to the bench.
(Whereupon,
the following proceedings were had at the bench:)
MR. SIKMA: My
objection is, Your Honor, that this witness now has waited around for
about two weeks to cover the same ground that we've covered on direct
examination. He's indicated he knows nothing about this other affidavit.
He filed an affidavit earlier, but this matter was gone into in an area of
about fifty pages in the transcript.
We object to
certain things that he's already covered which were not only to the case
in chief, but this is far beyond that and right back into the area of
which has already been covered.
MR. TAIKEFF:
Your Honor, if he waited two weeks it wasn't just to testify about this.
It was to testify about the Jimmy Eagle aspect of the case.
THE COURT:
Well, I'm not concerned about the length of the time that he waited. I'm
interested in knowing what it is that you are seeking to bring out that
wasn't brought out when you cross-examined him before.
{4244}
MR. TAIKEFF: I
think Your Honor should recognize that I am not pursuing this witness
concerning his own observations or his earlier testimony; and I am
limiting myself now, and I'm almost finished in fact to clarifying certain
conflicts, factual conflicts, which arose during the testimony of Marvin
Stoldt.
I have not
questioned him about his sighting or his particular activity on that day.
That matter is thoroughly reviewed. I'm only touching on the two or three
points brought out on Marvin Stoldt's testimony I need that clarification
on this and he was with Marvin Stoldt and he was a witness of what he was
doing and that's the only thing I'm questioning the witness about.
MR. SIKMA:
He's now brought up however an affidavit of Marvin Stoldt. I object to
this completely Marvin Stoldt isn't on the witness stand and he didn't
even ask Marvin Stoldt about that.
MR. TAIKEFF:
Are you denying that he signed the affidavit?
MR. SIKMA: No,
I'm not denying that he signed that affidavit, but in order for an
affidavit to be used or a prior inconsistent statement the witness has to
be on the witness stand and be given an opportunity to explain it.
Otherwise it cannot be brought into it. He knows that he can't get it in
evidence here because of the rule.
{4245}
This witness
doesn't know anything about it. Now, I think that it's improper to put
that affidavit of Marvin Stoldt's before this witness and ask him
questions relating to it.
MR. TAIKEFF:
But he might have prepared the affidavit and that's all I asked him,
whether he had anything to do with its preparation.
MR. SIKMA: He
indicated that he has none and that's why.
MR. TAIKEFF:
That was the end of the inquiry.
THE COURT:
Then it's closed.
MR. TAIKEFF:
Yes.
MR. SIKMA:
Okay.
{4246}
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
Q (By Mr.
Taikeff) Mr. Coward, I want to ask you about one last point, it concerns
some testimony that was given in your absence. You were with Marvin Stoldt
at or about the time the sightings were made, is that correct?
A That's
correct, sir.
Q And he was
near one window and you were near another window, is that correct?
A That's
correct.
Q Were there
any other people in your immediate proximity that in any way were
participating in the activities which I will loosely describe as the
sighting?
A Well, there
were people in the house. You know, we were all in the house and outside
of the house at different times.
Q I'm talking
about during those few minutes or few seconds, as the case may be, at
approximately 3:45 in the afternoon when, and I'm going to use
abbreviation so we don't go over any ground unnecessarily, when you and he
made some sightings at a distance first with the naked eye then with
certain instruments. Now at that time he was at one window, you were at
another window. That was the side of the house that was facing east. I
want to know if you recall anybody being in your immediate proximity and
in someway participating in that sighting activity?
A Well, I
don't know if they were participating in a sighting, {4247} but there were
other people in the house at the time and, you know, I went over to the
window because he called me to it, and there are other people around
milling. Now whether they were -- because I was looking out myself, I
couldn't tell who was behind me. But I do recall there were other people
milling around and moving. Now whether they were actually in the, you
know, looking themselves, I don't know.
Q Now the
total time from his first alerting you until the last observation was made
was probably just a matter of a few seconds, wasn't it, ten, fifteen
seconds at most?
A His or mine?
Q Or maybe
less.
Well, from the
time he first got to you and said, "Hey, take a look up there," and until
there was nothing more to see up there.
A Seconds;
yes.
Q Seconds. Was
there a third person involved in any particular way?
A Well, like I
said, there were people around going, you know, in and out of the building
and possibly while I was down there there possibly would have been
somebody there. I can't say because I wasn't watching behind me, you know.
Q Did Marvin
Stoldt look through your telescopic sight?
A No, sir.
Q Did he look
through any telescopic sight?
{4248}
A Not that I
know of. It's possible.
Q Did he look
through anything else that you know of?
A The only
thing I can say is when he called me over there because I was, you know, I
was positioned in such a way I had seen it before but when he called me
over there he had binoculars
Q He had
binoculars?
A Yeah. He was
standing up.
Q Was there
some person next to him from whom he borrowed binoculars or did he have
them on?
A The only
thing I recall is he called me and I came over there, he had them in his
hands. Now whether he had them on or whether he got them, I don't know.
Q You're
pretty sure of that?
A The best I
--
Q Your memory
serves you --
A As best I
can tell you.
Q Then I would
have one final inquiry of you, sir.
At page 1314
in the transcript, tell me whether you recall being asked these two
questions and giving the corresponding answers and then I'll put my final
question to you. Question: "Now do you know whether a similar sighting was
made by Officer Stoldt of that group in which he identified amongst others
possibly James Eagle"? Answer: "Yes, sir." Question "And do you know what
Officer Stoldt used to make his sighting?" Answer "I later found out they
were binoculars."
{4249}
First of all,
were you asked those two questions in this case and did you give those two
answers?
A You made it.
I mean, you asked it and I made it; yes.
Q You
understand we have to go through certain formalities sometimes, don't you?
A I realize
that.
Q Now, sir, if
you tell us now in April of 1977 that your memory is clear that he was
wearing binoculars, explain, please, if you can, why you said that you
later found out that he used binoculars.
A Well, again
the only thing I can think of is, you know, I think at the time that you
were asking those questions to me earlier is when we referring to when he
came in and gave me the statement. Now whether, well, that's what I recall
and I think basically when I made that statement it would have to be
because that's what he told me and with the two, that would have to be my
observation and my answer. That's the only way I could make such a
statement.
Q Anything
else you'd like to say on that subject?
A No. That's
it.
MR. TAIKEFF:
The defense offers Defendant's Exhibit 219 which is the summary of the
information from that group of reports.
MR. SIKMA:
Your Honor, I'd object to this as {4250} irrelevant, immaterial and not
the best evidence.
MR. TAIKEFF:
What would Mr. Sikma suggest is the best evidence? I'll offer the best
evidence.
MR. SIKMA:
Testimony of the witness, Your Honor.
MR. TAIKEFF:
This witness has testified from the government documents and said that
that summary is accurate.
MR. SIKMA:
Your Honor, there are items on there, there are matters on here the type
that's a lot of material which is totally irrelevant. I've never seen this
before
THE COURT:
I'll have to reserve ruling because I have not seen the document.
MR. TAIKEFF: I
have no further questions of this witness, Your Honor.
MR. SIKMA:
Your Honor, I have no further questions of this witness.
THE COURT: The
Court is in recess until 11:00.
MR. SIKMA:
Your Honor, pardon me. I beg the Court's pardon. Is this witness excused
now?
MR. TAIKEFF:
As far as we're concerned he is, Your Honor.
THE COURT: You
may step down and you are excused.
THE WITNESS:
Thank you, Your Honor.
THE COURT:
Court is in recess until 11:00 o'clock.
(Recess
taken.)
{4251}
(Whereupon,
the following proceedings were had without the hearing and presence of the
jury:)
THE COURT:
Ready for the jury?
MR. TAIKEFF:
Yes, Your Honor.
THE COURT: The
jury may be brought in.
MR. TAIKEFF:
Is Your Honor going to rule on that offer?
THE COURT: I
am not prepared to rule on that offer. I want to give some reconsideration
to it.
MR. TAIKEFF:
Does Your Honor want me to hand to the Clerk the documents which the
witness looked at before?
THE COURT:
Yes. You can do that. I could rule on it by this afternoon though if I see
these documents.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
MR. TAIKEFF:
Your Honor, the defendant calls Agent Harvey.
OLEN VICTOR
HARVEY,
being first
duly sworn, testified as follows:
MR. TAIKEFF:
May I proceed, Your Honor?
THE COURT: You
may proceed.
DIRECT
EXAMINATION
BY MR. TAIKEFF
Q Mr. Harvey,
have we ever met?
A No, sir.
{4252}
Q Have we ever
spoken?
A I think I
may have bumped into you walking into the building this morning.
Q Have we ever
spoken about your testimony?
A Oh, no, sir.
Q Your
occupation, sir?
A I'm a
special agent with the Federal Bureau of Investigation.
Q And did you
work in your official capacity on this case?
A Yes, sir.
Q When did you
begin working on this case, the incident of course having occurred on June
26th, 1975?
A On that
date, sir.
Q On that date
where were you assigned as a regular matter?
A In Omaha.
Q And then I
gather you were transferred temporarily to the Rapid City office?
A Yes, sir.
Q And for how
long did you continue working on one aspect or another of this case?
A Until
approximately Christmas.
Q Christmas of
1975?
A That is
correct.
Q Then I
assume other than appearances as a prospective {4253} witness or
consultations as a prospective witness you haven't really done any work on
this case?
A Since that
date.
Q Since
December of '75?
A Yes, sir.
That's correct.
Q And I assume
you were transferred back to your regular home base?
A Yes, sir.
Q Did you work
with any of the agents from the Rapid City office, ant let me qualify that
question this way: we know that you were all working together in the sense
you were all investigating the case, but I mean on a personal basis with
one or two other agents going out and executing assignments together?
A We generally
worked with more than one individual. Is that what you mean?
Q Yes. You
worked in pairs at least as a rule?
A Yes, sir. As
a rule; yes, sir.
Q Now with
respect to this pairing up in connection with the investigation of this
case, did you work with any agents, paired with any agents from the Rapid
City office?
A I did on
different occasions work with different agents from Rapid and elsewhere,
but specifically pairing, no, sir. If I understand exactly what you mean.
Q Let me ask
you specifically, do you know J. Gary Adams?
{4254}
A Yes, sir.
Q Have you
ever worked with him as a team of two?
A Yes, sir.
Q In
connection with this case?
A Yes, sir.
Q On how many
separate occasions? If you don't know exactly you can say so and give us
an approximation.
A Well, in the
period we mentioned, I probably worked with Gary five or six, seven times.
Q As you view
it, was there any special or unique characteristic to those five or six
assignments that you had now that you can look at it in retrospect?
A No, sir.
Q How many of
those five or six assignments had to do with interviewing witnesses,
prospective witnesses?
A In the
course of six months I must have interviewed 100 people.
Q But I'm
talking about things that you did with J. Gary Adams as a team of two.
A I did
interview people with Mr. Adams.
Q How many
people, if you can tell us?
A Five, six,
seven, something like that.
Q You're
familiar with the names Michael Anderson, Wish Draper, are you not?
A Yes, sir.
{4255}
Q You know
that they are two of the young native American people who lived in and
around the Jumping Bull area in the spring of 1975, don't you?
A With
reference to Mike Anderson, yes, sir; with Wish Draper, I'm not at all
sure.
Q Did you ever
interview --
A What the
particulars are.
Q I'm sorry. I
didn't mean to cut you off.
Did you ever
interview Mike Anderson?
A Yes, sir.
Q How many
times?
A One time,
sir.
Q How long did
that interview last?
A On and off a
couple hours. Two or three hours.
Q Who was with
you on that occasion?
A Mr. Adams.
Q Did you ever
interview Norman Brown?
A Yes, sir.
Q He was
another young Native American person who had spent sometime at the Jumping
Bull area, isn't that correct?
A Yes, sir.
Q How long did
your interview of Norman Brown last?
A Probably two
hours approximately.
Q Who was with
you?
A Who was
present at the interview?
{4256}
Q Special
agents I'm talking about.
A Mr. Anderson
and another agent from the reservation was in the immediate vicinity
outside the room but I don't remember what his name is.
Q
A BIA officer
or special agent of the FBI?
A No. He's an
FBI.
Q Did you have
occasion to interview any other young native American people with J. Gary
Adams who it was believed or in fact resided for sometime at the Jumping
Bull community?
A I may have,
sir. Like I say, I interviewed so many people and specifically which ones
were with Mr. Adams, I really don't recall.
Q Do you
recall the date on which you interviewed Michael Anderson on the one
occasion that you interviewed him?
A It was
September.
Q 1975?
A Yes.
Q Can you
recall the exact date?
A No, sir. Not
right now.
Q If I say to
you the date September 11, 1975, does that in any way trigger your memory?
If it doesn't just say so.
A Well, like,
that interview occurred in early September and as far as specific date and
everything, it was written up at the time.
Q So that you
can't remember it but if you saw a document {4257} you might be satisfied
as to what the date was, is that a fair inference?
A Yes, sir.
Q Then I'll
show you Defendant's Exhibit 89 for identification and ask you to look in
the lower left-hand corner and state whether you'd be willing now to state
with some degree of assurance as to the date of the interview of Michael
Anderson in September, 1975?
A Yes, sir.
That interview occurred on the 11th.
Q And the
document I just showed you is an eight page 302 which you and Mr. Adams
wrote or in some way were responsible for?
A Yes, sir.
Q This
interview took place where?
A In Wichita,
Kansas.
Q And do you
recall the location in Wichita?
A Yes, sir. It
was the federal building. Whether there's more than one, I don't recall.
Q Any
particular office in the federal building?
A Yes, sir. It
was probably the marshal's office, United States Marshal's office.
Q Now at that
time was Michael Anderson in federal custody?
A Yes, sir.
Q What was he
charged with?
A I don't
recall the specific violations but something {4258} probably to do with
violations of one or more firearms statutes maybe more. I don't recall
specifically.
Q When you
went to see him, did you make any check prior to that time concerning
whether he had any criminal charges pending anywhere?
A As I recall
at that time we were not exactly sure who Mr. Anderson was so obviously we
couldn't make criminal, the criminal checks, if I follow your question.
Q I understand
your answer.
Sometime
afterward, in your official capacity, did you have occasion to check on
whether or not he was facing criminal charges in a jurisdiction outside of
Wichita or Kansas?
A If you're
asking me did I specifically make that check, no, sir.
Q Do you know
whether that check was made?
A No, sir.
Q Do you know
whether Michael Anderson was ever convicted of a burglary charge in
Arizona?
{4259}
Q Now, was Mr.
Adams with you throughout the questioning of Michael Anderson on September
11, 1975?
A Yes, sir,
with maybe one or two exceptions, It has been almost two years, and at
least for the majority of the time we were together.
Q Which of
you, if it was only one of you, spoke with him first?
A I have no
way I could remember.
Q Putting
aside who spoke with him first, could you summarize what was the nature of
the conversation before he got to any facts concerning the events of June
26, 1975?
A That entire
interview was recorded on the appropriate communication, sir, which I
don't have in front of me; and I would almost need that to respond to your
question.
Q Would
placing the 302 before you help in any way?
A Yes, sir.
MR. TAIKEFF: I
would be happy to do that.
I am placing
before the witness, your Honor, Defendant's Exhibit 89 for identification.
I assume the Government has a copy available for itself.
(Witness
examines document.)
Q (By Mr.
Taikeff) What I am referring to specifically is any possible reluctance on
his part to speak with either or both of you and any conversation that you
may have had with him to persuade him that it would be in his best
interests, assuming {4260} there was such a persuasion, to speak with you,
you understand the subject that I am focusing my attention on?
A Yes, sir, I
think I do. I am not quite sure of the question you are directing to me.
Q I want to
know what was said to Anderson -- he did eventually in the course of that
interview give you a substantial amount of information about June 26th,
didn't he?
A Yes, sir.
Q And
initially he even pretended to be somebody else, not Michael Anderson,
right?
A That's
correct.
Q Well,
somewhere between his pretense and his cooperation, I assume you had some
sort of conversation with him, and if you did, I would like you to tell
the Court and jury about that.
A All right.
To the best of my recollection of this incident, we introduced ourselves,
despite our credentials and told Mr. Anderson that we were investigating
the events surrounding the June 26th murder of the two agents. We told him
that we had information indicative of the fact that he was there, and we
were interviewing him as a witness to that event; and from other than that
specifics, I cannot recall anything further.
Q All right.
Now, am I correct that when you say to someone, "I am interviewing you as
a witness," that is one way of communicating the fact that this is a mere
witness, not a possible Defendant in the interview, is that correct?
{4261}
A The purpose
of the interview was to get Mr. Anderson's observations relating to the
murders. At that time this was all we were trying to get from him, and
that --
Q
(Interrupting) I understand that. I am just reviewing with you the facts
surrounding his willingness.
A O.k.
Q His apparent
willingness to give you information.
Did you
elaborate in any way when you said, "We are interviewing you as a
witness," as to any special significance that the phrase "as a witness"
might have to somebody, did you qualify it in any way and say, "Look, you
are not a suspect, you are only a witness," or anything like that?
A I just
really don't recall the exact terminology used other than to convey the
message you just gave.
Q By the way,
with respect to your use of that exhibit, I have no objection if it is
necessary for you to use it; but so the record is clear, if I ask you a
question that you are unable to answer, and you look at the report, I
certainly won't interfere with your looking at it but would you say so?
A All right.
Q Thank you.
Now, if as an agent of the Federal Bureau of Investigation you have
occasion to warn someone of his constitutional rights, such as the right
to remain silent, the right to seek assistance of counsel, et cetera, the
so-called Miranda warnings, do you normally make a note of that fact in
{4262} your 302 in case some question should come up in the future about
the propriety of your conduct, the legal propriety of your conduct?
A Yes, sir.
That fact, of course, is recorded in the appropriate document.
Q Now, did you
tell Michael Anderson that there was a possibility that what he said might
result in him being prosecuted as an accessory to murder, if not murder
himself, before he gave you the information?
A No, sir.
Q Was there
any conversation between the agents on the one side and Michael Anderson
on the other side concerning possible involvement in this case as a
Defendant?
A I am sure
somewhere down the line his -- he requested as to what would happen to him
or the possible consequences of his action, and Mr. Adams and I reiterated
that we were interviewing him as a witness.
Q So that when
you use the phrase, "as a witness," it does have a special meaning?
A Yes, sir.
Q And it means
that you might be called to testify, but as of this time we are not
seeking to charge you with a crime or crimes, is that a fair summary?
A And that we
want your observations, yes, sir.
Q Now, that
you look back on that incident, do you have any {4263} reason to believe
that Michael Anderson did not believe that you had a friendly disposition
towards him as far as whether he was going to be a mere witness or whether
he was going to be a possible Defendant?
A I am afraid
I don't understand exactly the question.
Q I am trying
to get some information concerning his demeanor, how he was reacting to
what was happening. Based on your observations of how he was reacting,
would you say that he seemed to be evasive or that he seemed to accept
your relatively speaking friendly approach to him?
A Well,
initially he was somewhat reluctant; and after we talked to him awhile, he
became less reluctant and furnished information in the usual interview
type form.
Q And so is it
fair to say that you persuaded him that you were there just to get some
information he had, nothing to worry about, and that it would be in his
best interests if he told you everything he knew about the subject?
A Yes, sir.
Q And as far
as your own observation is concerned, you were persuaded that he seemed to
react favorably and positively to your gesture or offer of what the
circumstances were?
A Yes, sir. He
did respond supplying us the information.
Q Now, isn't
it a fact, sir, that he told you that at approximately 11:30 in the
morning he was in Tent City preparing to eat a meal?
{4264}
Now, once
again you are free to use that, but I would like you to say when you
cannot answer from memory, that you have to look at the report, and you
may then look at it.
A All right, I
am looking at the report.
Q All right.
May I then help you by suggesting that you look on Page 2 in the second
paragraph?
A Yes, sir. I
am sorry, are you waiting on a response from me?
Q Yes, sir.
The question was, did he say certain things to you; and I think you were
looking to refresh your recollection to find out whether he did or not?
A Yes, sir. He
did indicate that at approximately 11:30 a.m. of that date he was in Tent
City.
Q Preparing to
eat?
A Yes, sir.
Q Now, did he,
in describing the events once the shooting began, indicate that there were
other people there shooting besides himself?
A Yes, sir.
Q Did he at
any time speak of such people collectively without naming them, and if so,
did you ask him for the names of those people?
A I am quite
certain that during the interview he would have made statements indicating
more than one. We would, of course, ask him to qualify exactly who he was
speaking of.
{4265}
Q Now, for
instance, in Paragraph 2 of Page 2, there is one sentence which says: At
this point Anderson stated there were other individuals shooting. However,
Anderson did not identify these individuals.
Now, with
respect to that sentence which summarizes what may have taken minutes,
what was happening between you and Adams on the one side and Anderson on
the other side in connection with this not identifying these individuals,
can you tell us about that?
MR. HULTMAN:
Your Honor, I object on the grounds that it is an unfair and misleading
question. One, counsel or the witness has indicated he is relying upon the
302, and without counsel reading the immediate sentence preceding the one
he has just read, I object on the grounds that it is misleading and leaves
a thought with the jury which is misleading.
MR. TAIKEFF:
Your Honor, I will read that additional sentence and then put the
question.
So now I read
to you those two consecutive sentences.
THE COURT:
Very well.
MR. TAIKEFF:
Upon arrival at the residence, he observed two Indian males he knows as
Norman Charles and Joe Stuntz firing down into the creekbed area with
shoulder weapons. At this point Anderson stated there were other
individuals shooting. However, Anderson did not identify {4266} these
individuals.
Q (By Mr.
Taikeff) Now, in case I did not articulate my question correctly before,
let me restate it.
He did tell
you that he and certain other people were shooting, and then apparently
told you about others who were unidentified.
Can you tell
us what the conversation was between the agents on the one hand and
Anderson on the other concerning these unidentified few?
A Once again,
as best I recall, that phase of the interview from maybe this one or two
sentences, I think I recall Anderson to say simply that there were other
people shooting and he for some reason didn't want to identify them, if
that answers your question.
Q All right.
Now, if a witness whom you are interviewing such as Anderson, who was so
closely personally connected with the events, refuses to identify a person
for you, would you not, as a normal matter make a specific note of that,
that he refused, as opposed to as "was unable", "couldn't remember", or
something of that sort?
A Why, I think
I did make a specific note of that. I said Anderson did not identify these
other individuals.
Q Yes, but I
am talking about the reason, whether articulated by the witness or your
own subjective impression, if you thought somebody was being evasive as
opposed to someone not remembering, {4267} wouldn't you make some note of
that so that you would recall what his conduct was on that particular,
apparently important aspect of the case?
A If I
understand the question correctly, no, I would not put down my subjective
impression of what somebody was telling me simply because I wouldn't feel
qualified to address myself to that problem. He just said he did not want
to identify these people, and I recorded that.
Q I beg your
pardon, and you what?
A And I
recorded it.
Q No, no. I
think you just said that he said he did not want to identify the people.
The report says that: Anderson did not doesn't say he said he would not.
It says he did not, isn't that true?
A Well, once
again, specifically he said other people were shooting. We said, "Who were
they?" and he said -- and I don't recall his exact words, but he gave the
impression he didn't want to identify them, and that's --
Q
(Interrupting) All right. Let me put it to you this way: Other than the
sentence or portion of the sentence which says: However, Anderson did not
identify these individuals -- can you tell me if anywhere in this report
there is any indication of his unwillingness to identify someone?
A You mean
other than this particular sentence?
Q Other than
the fact that he did not identify these {4268} individuals, is there
anywhere recorded in this report anything about his unwillingness or
refusal?
A Sir, I would
have to read this again in its entirety to answer that question fairly.
Q Perhaps we
can save the time at this particular moment and allow you to do that at a
more convenient time.
In any event,
is it not a fact that you showed him a large number of photographs of
various people?
A Yes, sir,
that is correct.
Q Maybe almost
three dozen different photographs?
A We showed
him a large number of photographs, yes, sir.
Q And didn't
he identify virtually all of the people who subsequent investigation shows
were in fact at Jumping Bull's, whose photographs you showed him?
A (Examining)
With -- if I understand the question, with reference to these photographs
we showed him a large number of photographs and then recorded his
observation with reference to each.
Q All right.
Now, in fairness to the complete picture, about a little more than half,
maybe 65 percent of the photographs he identified as people who had been
at the Jumping Bull community, and the remaining photographs were of
people he said he didn't know, and he could not identify them as having
been there, is that a fair, general summary?
MR. HULTMAN:
Well, I object to that as not being a {4269} fair summary, your Honor. If
he wants to ask as to what idents were made, I have no objection. There
were all kinds of idents made of certain other people he knew and certain
other people he didn't know. I think a summary by counsel is unfair at
this time.
MR. TAIKEFF: I
will modify my questioning on that.
Q (By Mr.
Taikeff) I ask you to draw your attention to Page 6.
A Yes, sir.
Q There is
recorded on that page approximately 15 names of the people whose
photographs he looked at and couldn't tell you anything, right?
A Yes, sir.
Q Do you know
if subsequent investigation indicated that any of those people were at the
Jumping Bull compound on June 26?
A (Examining).
MR. HULTMAN:
Your Honor, I have no objection to this to the extent that the witness
does have knowledge, but that --
MR. TAIKEFF:
(Interrupting) Yes, of course, subject only to his own knowledge,
naturally.
A Going
through the indicated names, and like you say, approximately 15, I myself
do not have personal knowledge that any of these people were in the
Jumping Bull area on the 26th. Is that --
{4270}
Q (By Mr.
Taikeff) Yes, that's what I am asking about.
A All right.
No, sir, I did not.
Q Now, you
showed him photographs, and he gave you some information concerning
Leonard Peltier you can go back to Page 4 now.
A All right.
(Examining). All right, I am on Page 4. Is there a specific portion?
Q I want to
know whether you showed him a photograph and he gave you some information
about Leonard Peltier and identified the photograph?
A (Examining)
Yes, sir. We did supply him with a photograph of Leonard Peltier, and his
observations, of course, are recorded here.
Q O.k. Jean
Marie Bordeau photograph shown, identification made?
{4271}
A Are you
still on page 4, sir?
Q I'm onto 5
now, sir
A Yes, sir.
Q And --
MR. HULTMAN:
Your Honor, again, Counsel, I just want to make sure that there's no
impression left as to whether or not he identifies people because he's
seen them sometime or whether they were there day.
MR. TAIKEFF:
All right.
MR. HULTMAN:
And in the first instance he identified the person as being there and the
second case he just says that somebody that he's known.
MR. TAIKEFF: I
understand.
MR. HULTMAN: I
just want to make sure --
MR. TAIKEFF:
Yes. I'm covering certain aspects of it and I just want to make sure that
we have some indication about his ability to identify and his willingness
to identify certain people.
Q (By Mr.
Taikeff) So far I think you've said you showed him a photograph of Leonard
Peltier. He identified it, said some things to you about Mr. Peltier?
A Yes, sir.
Q Then he was
shown a photograph of Jeannie Bordeau, young female Indian person, and he
identified that photograph, right?
A Yes sir.
{4272}
Q And you
showed him a photo of -- do you know whether the next person is Dino
Butler's wife? Have any personal knowledge of that fact?
A Whether --
are you speaking of a legal wife? I have no, no knowledge at all of their
marital status.
Q Whether they
were formally married in a Christian ceremony, an Indian ceremony is of no
concern.
MR. HULTMAN:
Your Honor, I object I have no objection if counsel wants to, and that's
where I started I believe to ask him whether or not on this occasion he
identified a given photo, and then you identified that photo or anything
about the person. But beyond that there's no showing that he asked whether
or not she was married to somebody or that he knew this person in any
other way. And that's the basis I'm objecting on. There's no foundation,
one; and secondly, there's no showing that there was any discussion by the
people at the time and place we're now talking about to the effect that
counsel is now questioning, and I object on those grounds.
MR. TAIKEFF:
Your Honor, my question simply was, was he shown a photograph of Dino
Butler's wife and did he identify that photograph.
MR. HULTMAN:
And ask if he knows what was shown and that was the discussion. Because
there isn't any showing of that kind with reference to the document,
Counsel.
{4273}
MR. TAIKEFF:
Your Honor, if he doesn't know, he can say he doesn't know.
MR. HULTMAN:
Well, then don't mislead him by saying that the name is something but.
It's somebody else's wife.
Q (By Mr.
Taikeff) Sir, do you know whether a photograph of Dino Butler's wife was
shown to Mr. Anderson?
A I have no
knowledge of Dino Butler's marital status.
Q Do you know
whether he lives with a woman?
MR. HULTMAN:
Well, now again, Your Honor, I object as it being totally irrelevant. The
matter that he's inquiring about is certain photos were shown and certain
names are on the photos later that counsel here sees, and I submit that
there's no foundation or showing that the photo he's now talking about,
Kelly Jean McCormick, had anything on it but Kelly Jean McCormick. And
that's the only identification, if there was any, that was made.
MR. TAIKEFF:
But, Your Honor, I'm not seeking her name. I'm seeking to get some
information about her identity
MR. HULTMAN:
And I'm --
THE COURT: The
question was: Do you know whether or not he was living with a woman, and I
fail to see the relevancy of that question.
MR. TAIKEFF: I
think Your Honor will in a moment if the witness answers it and I pursue
it.
THE COURT: He
may answer the question.
{4274}
Q (By Mr.
Taikeff) Do you know whether Dino Butler at that time in 1975 was living
with a woman?
A At the time
of this interview I'm not sure if I had that knowledge or not. No.
Q Okay. In any
event Mr. Anderson identified a photograph of a person you knew as Kelly
Jean McCormick; is that correct?
A Yes, sir,
that's correct.
Q And told you
that she was an Indian male who lived in tent city, right?
A Yes, sir. In
the course of elaborating.
Q And he
elaborated and said upon departure she left in the immediate company of
Dino Butler, right?
A Well, he
actually said she fled along with Dino Butler, that's correct.
Q Okay. You
like the word fled better than departed?
MR. HULTMAN:
Well, I object, Your Honor. That's a clear, what's what the, that's a
misstatement of the record by counsel and now we've gotten to the clear
statement in the record and he accuses the witness in some way of whether
he likes it better.
THE COURT:
That objection is sustained.
Q (By Mr.
Taikeff) Do you know whether Kelly Jean McCormick is a person known as
Neelock?
A I believe
that was one of the answers she uses, yes, sir.
Q Might that
be her Indian name?
{4275}
A I would have
no knowledge of that.
Q Do you know
whether she's an Eskimo?
A No, sir.
Q Now, was he
shown a photograph of Wallace Little, Jr.?
A Yes, sir.
Q And did he
tell you that he knew this person as June Little, and that June Little
lived with Wanda Sears in a house on the Harry Jumping Bull property?
A Yes, sir.
Q Did you show
him a photograph of Jimmy Eagle?
A Yes, sir.
Q And did he
tell you that Jimmy Eagle was a person he knew and that Jimmy Eagle was at
the Harry Jumping Bull residence at the time of the shooting on June 26,
1975?
A Yes, sir.
Q And did he
also tell you that a girl friend of Jimmy Eagle's was with him there? He
only knew her by the name Wilma, and she was, she was cooking in tent city
on the morning of June 26, 1975?
A Yes, sir.
Q And did you
show him a photograph of a person whose formal or full name is Darelle
Dean Butler and he said to you that he knew this person by the name of
Dino Butler and that person ad been in tent city?
MR. HULTMAN:
Well, again I object, Your Honor. It's {4276} clearly a misstatement of
the record, the reference specifically and if counsel will read the only
sentence that's there I'll have no objection. But that's a clear
misstatement of the record as to what the witness told him at that time
and is recorded.
MR. TAIKEFF:
Your Honor, I would like to come to the sidebar to persuade Your Honor
that Mr. Hultman is intentionally harassing me during this interrogation.
(Whereupon,
the following proceedings were had at the bench:)
MR. TAIKEFF:
May the question be read back first that I just put to this witness?
(Question read
back: "Question: And did you show him a photograph of a person whose
formal or full name is Darelle Dean Butler and he said to you that he knew
this person by the name of Dino Butler and that person had been in tent
city?")
MR. TAIKEFF:
Now, Your Honor, what Mr. Hultman apparently is complaining about is that
I didn't use the somewhat generative word "that he had fled from tent
city". Now, clearly, Your Honor, if Anderson said that he fled from tent
city he must have out of necessity been in tent city. And I summarized
fairly and within reasonable bounds the fact that the name of the person
was Darelle Dean Butler; that he said, "Yes, I know him, I know him as
Dino Butler," and that {4277} he was someone who was at tent city. Now, I
don't think that was unfair for me to present because in fact it is clear
from this paragraph that all of that must be true and the answer must be
yes.
If Mr. Hultman
doesn't like the fact that I don't adopt all of the language that's
employed here, as long as it is not material or a material fact concerning
the willingness of this witness to make an identification, I think it's
improper for him to insist that I do so.
MR. HULTMAN:
Your Honor, I insist clearly that it's improper. The only reference on
this whole page as for the specific purpose is as counsel is asking is
identification. He's shown a picture and he responds and his response is
not what counsel indicated. He doesn't say a word about tent city. His
response is period, the person depicted was the individual who fled along
with him and the other before named person period. And I say the question,
if you are going to do this, that within the rules he should be quoting
what it was in fact that was said in the document and not summary or
conclusions on the part of counsel; and especially conclusions that aren't
even reflected at this point.
THE COURT: I
think the problem arises because counsel is interrogating this witness by
leading questions. Now, I recognize that there possibly could be a showing
that this {4278} witness is hostile.
MR. TAIKEFF:
Now, it's not hostility, it's the fact that he has no independent
recollection and that's why I have to do it that way. I started out with
nonleading questions and I, at this point, would not claim that he is
hostile. But he says he just has no memory and he's had the report
MR. HULTMAN:
Then that's the very reason, Your Honor, that the only evidence that is
good evidence, or the best evidence,is what he did record as to what the
statement was at that time; and that's not the statement that counsel gave
in his leading question.
MR. TAIKEFF:
But, Your Honor, I am not eliciting or attempting to elicit from this
witness specifically what did the person tell. I am trying to show that
the person willingly and accurately made certain photo identifications. I
should not be limited by the language that someone chose in writing the
report.
All I want to
do is fairly and without any kind of improper manipulation establish that
Anderson was responsive and that he accurately related whom he knew, and
if the people were at tent city gave some indication of that fact. I don't
know why I have to adopt the language of some other writer.
THE COURT:
Well, the problem here also, as I see it, the person depicted was the
individual who fled along with him and other named persons. That doesn't
necessarily establish {4279} that he was at tent city.
MR. TAIKEFF:
But, Your Honor, the evidence is clear they fled from tent city.
MR. HULTMAN:
Yeah, but that's not the point that he says in writing in this interview.
THE COURT: You
are questioning this witness as to what he has, as to what he has
reported.
MR. HULTMAN:
That Anderson said at that time.
MR. TAIKEFF;
The use tent city right here, Your Honor so there's no question but that
tent city was a place that was employed on September 11, 1975. That's page
5, paragraph 5.
MR. HULTMAN:
But he refers to a given person in response to that question at that
point. He doesn't refer to Darelle Dean Butler as a person who lived in
tent city in response to the picture.
MR. TAIKEFF:
Your Honor, the Government wants me to adopt their language which is
written to a perspective point of view. I'm trying to establish facts and
not what they wrote. And I don't feel that I should be bound to adopt
their language which is written with a certain definite bias.
THE COURT:
Well, except as I say, first of all, because this witness is not hostile,
you should -- at least as to this point he's shown no hostility, nor shown
himself to be an adversarial role.
{4280}
MR. TAIKEFF: I
agree, Your Honor.
THE COURT: All
right. You should interrogate him with nonleading questions to the extent
that you are able to do so.
MR. TAIKEFF:
Yes, I will, Your Honor.
THE COURT: And
I think that that will eliminate this question.
MR. TAIKEFF:
Yes, Your Honor.
THE COURT:
This problem.
MR. HULTMAN:
Very good.
THE COURT:
Very well.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
Q (By Mr.
Taikeff) Agent Harvey, did you show Mike Anderson a photograph of a person
whose name was Darelle Dean Butler? Yes or no.
A Yes, sir.
Q And did he
tell you that he knew this person, or did he deny that he knew this
person?
A He said he
knew that person, yes, sir.
Q And did he
indicate to you that he knew this person by some other name than Darelle
Dean Butler?
A Yes, sir.
Q Just yes or
no if possible.
A All right.
Yes, sir.
{4281}
Q And would
you tell the Court and jury what name did he say he knew this person?
A Dino Butler.
Q Did he say
anything to you which indicated to you that this person had been in the
area we call tent city? Yes or no.
A Yes.
Q On June 26,
1975?
A Yes, sir.
Q And did you
show him a photograph of a woman by the name of Jean Ann Day?
A Yes, sir.
Q And did he
identify that photograph as the photograph of someone he knew?
A Yes, sir.
Q And did he
tell you where he last saw that person within the preceding month or so?
A Yes, sir.
Q And did you
show him a photograph which you believed to be the photograph of a person
named Joseph Bedell, B-e-d-e-l-l Stuntz?
A Yes, sir.
Q And at first
what was his response to that?
A As to his
response to any particular photograph, that's other than what's recorded,
I obviously would not be sure just to the fact that this was almost two
years ago.
{4282}
Q Read that
paragraph on page 6 concerning the photograph of Joe Stuntz.
A Yes, sir.
Q And I am not
going to ask you whether you have confidence in the accuracy of the
paragraph, I just want to know whether the reading of it refreshes your
recollection independently?
A You want me
to read it out loud?
Q No, sir,
it's not in evidence.
A Yes, sir.
Q Does that
help you recall what took place?
A Yes, sir.
Q All right.
When you first showed him the photograph what did he say?
A Well, when
we showed him the photograph he identified that person depicted as the
Indian male who was killed on the 26th.
Q Okay. And
then did he say something about the photo in addition?
A Yeah He
elaborated and said that this was not the person he recalled to be
shooting alongside Norman Charles.
Q He said it
didn't appear to be identical to the person; isn't that correct?
A Yes, sir.
Q Okay. And
did you show him a photograph of a person by the name of Anna Mae Aquash,
A-q-u-a-s-h?
A Yes, sir.
{4283}
Q And did he
make any identification of that person?
A Not by the
photograph. By name.
Q And did he
tell you whether or not she was someone who was frequently in the tent
city area?
A Yes, sir, he
did.
Q And what did
he tell you in that regard, that she was or that she was not?
A That she
was.
Q Now, you
then showed him a photograph of a person named Edgar Bear Runner; is that
correct?
A Yes, sir.
Q And what was
his response in looking at that photograph as to whether or not he
recognized that photograph?
A Upon display
of the photograph Mr. Anderson said he did not know that individual but --
Q No. You mean
that individual didn't know the person who was in the photograph, right?
A That's
right.
Q Okay.
A The person
in the picture. But he did know Edgar Bear Runner, and he did not observe
Mr. Bear Runner in the vicinity of tent city on the 26th.
Q Now, sir, if
you need to refresh your recollection I suggest that you turn to page 2,
and if necessary you can focus your attention on the latter half of the
second paragraph. But try {4284} to listen to my question first and if you
have to look please do so.
Did he tell
you that the first time he looked over at the agents' cars, the agents
were lying prone and that he was certain that they were already dead, or
at least severely wounded?
A Yes, sir.
That's correct.
Q And further
that they at no time moved or in any other way indicated that they were
alive?
A That's
correct.
Q Did he tell
you that there came a time when he, Norman Charles and Joe Stuntz, left
the area where they were and went to tent city?
{4285}
A Once again
reading the thing.
Q I think we
understand that the details are not fresh in your mind and if the report
helps you remember, please look at it.
A Yes. We
indicate that he, Mr. Stuntz, Mr. Charles stopped firing at one point and
then that he, Mr. Anderson, then left the area.
Q Went to tent
city and packed?
A Yes, sir.
Q For your
guidance sir, perhaps you would turn to page 4 and once again to the
extent possible if you can answer a question without looking I'd just as
soon have you do it that way. If you have to look, it's okay to look.
Did he tell
you that Bob Robideau was the leader of tent city or of the tent city
community?
A Yes, sir. I
believe he made a statement to that effect.
Q Now when you
showed him the photographs of Leonard Peltier, what did he say to you?
A Once again
Mr. Anderson said that he was familiar with Mr. Peltier and he went on to
describe the basis with which he was familiar with him.
Q What was
that basis?
A Mr. Anderson
said that he rode with Mr. Peltier from Farmington, New Mexico, to South
Dakota in May, '75.
{4286}
Q Did he tell
you what event, if any, they were coming from?
A He may have.
I don't recall.
Q Does it
refresh your recollection any if I suggest that he said that they were
coming back from a national AIM convention, American Indian Movement
convention?
A Like I say,
he may have said this.
Q Okay.
What else did
he tell you concerning Peltier when you showed him Peltier's photograph?
A He, Mr.
Anderson, stated that Peltier was at the Jumping Bull residence on the
26th during the shooting.
Q What else
did he tell you before he told you that Peltier was at that location on
that day?
A That Mr.
Peltier frequented that area.
Q Generally,
not just on June 26th, is that right?
A Frequently.
Yes, sir.
Q Now you made
some inquiry of him, and to assist you I would suggest that you look at
page 8, the first paragraph on the page. You asked him about a vehicle?
A Yes, sir.
Q In terms of
the identity of the vehicle itself, describe the vehicle you asked him
about, please.
A Well, if I
remember this particular point in the interview --
Q Please note
my question, though. I asked for the identity {4287} the description of
the vehicle you asked him about.
MR. HULTMAN: I
object on the grounds, Your Honor, that that assumes a fact which is not a
part of the record and I think the witness ought to be given an
opportunity to respond as to whether or not the facts that Counsel has
submitted as a part of the record in his question are in fact a part of
the record.
MR. TAIKEFF:
Your Honor, I assume when Mr. Hultman says part of the record he's
referring to the 302.
MR. HULTMAN:
That's exactly what I'm referring to.
MR. TAIKEFF: I
am asking this witness to tell us the content of his inquiry.
Q (By Mr.
Taikeff) When you asked about the vehicle, what did you say to Mr.
Anderson?
MR. HULTMAN:
Again, Your Honor, it assumes a fact which is not a part of the record and
in fact --
MR. TAIKEFF:
Your Honor, I ask to come to the sidebar so there is no confusion in the
witness' mind from this colloquy.
(Whereupon,
the following proceedings were had at the bench:)
MR. HULTMAN:
Your Honor, I object on the grounds again that what Counsel has stated
just now is not, first of all, in the record and, secondly, it's
misleading to the witness. It's obvious to me the point he's trying to
make. {4288} This witness, this statement indicates that at a point in the
interview a question was asked of the witness, then he responds but the
question was not specifically did the witness ask him about a specific
automobile and that's where I say it is misleading.
MR. TAIKEFF:
Your Honor, I am not trying to mislead the witness. It is clear that a
conversation was had which led to a discussion about a certain vehicle.
MR. HULTMAN:
About an individual first.
MR. TAIKEFF: I
said a conversation was had which led to a discussion about a vehicle.
What I wanted to know from him was what questions he put to Anderson
concerning the vehicle.
MR. HULTMAN:
I'd have no objection if you ask that but you assumed in your leading
question, you said that, you asked specifically the effect about a red and
white van. That's not what this paragraph --
MR. TAIKEFF: I
didn't say red and white van, by the way.
MR. HULTMAN:
Or a vehicle.
This would
indicate he didn't ask necessarily any question about a vehicle. That was
a response that was --
MR. TAIKEFF:
I'll ask whether he asked questions about a vehicle. If he says yes I'll
ask him what questions did you put to Anderson. I will then elaborate on
the entire {4289} conversation. But I think I should be permitted to get
the facts in the order in which I want them. I don't have to do them in
the order in which he lived them. I have to get it in a certain order
because I have a method of interrogating witnesses.
MR. HULTMAN:
Your Honor, I say that's unfair. That's placing words in the witness'
mouth. The foundation which Counsel has laid is that his best memory is
what is said here and what Counsel has just said is not said here and
that's the point and the reason for my objection, that Counsel said, you
asked him about a vehicle. That is not in the record. In fact, this
statement that he refers to, he's asked the question, "Do you know abouta
LeRoy Casados?" In response the man said he knew him and he drove a red
and white vehicle.
MR. TAIKEFF:
Then he asked him questions about a vehicle. I want to focus his
attention, if he has an independent recollection, I'm willing to ask him
if he has any recollection about any questions about a vehicle and if he
says yes --
MR. HULTMAN:
It was a response --
MR. TAIKEFF: I
don't want him to tell me on my case how he got to it in the order in
which you want me to lay the record. I'm entitled to develop the
information in the order in which I want it. You have cross-examination.
You can ask him any leading questions you want within reason to take care
{4290} of anything which you think I have failed to do. But the order in
which I get facts from a witness is a carefully planned thing on the part
of Counsel.
MR. HULTMAN:
And I say it's misleading, that's my very point, on the basis of this it's
misleading.
MR. TAIKEFF:
I'll ask him a nonleading question whether he has any independent
recollection about a vehicle and if so what were the questions he put to
Mr. Anderson.
MR. HULTMAN:
Again I say that's misleading as far as the recollection in the record.
The documents you're using -- I submit to the Court paragraph, the top
paragraph with which we are now concerned.
The reason I
object, Your Honor, is because Counsel has continually shown he is
attempting to show that it is at the instigation always of the FBI and
that's the point that I'm taking strong issue with.
MR. TAIKEFF: I
assure you, Mr. Hultman, that when --
MR. HULTMAN:
Let me finish.
MR. TAIKEFF:
When I elicit the answers I will bring out the fact how they got to talk
about it. I wish you would allow for the fact that I can develop the facts
in an order which I think is appropriate as long as it is not misleading
or unfair.
MR. HULTMAN:
That is the point I am making, Counsel, that's misleading and unfair
because the man, one, his {4291} recollection is, as you pointed out, is
from the document and once it's done that, then you have to use or accept
the document at least in terms of the questioning and not put something
that is an assumption as something that is not here, not in the record in
order to establish with a witness who doesn't understand the import of the
question and is trying to give you a fair answer something then which you
turn around and be able to turn as a sort against him. So on cross
examination I bring out the reverse, so what.
MR. TAIKEFF: I
don't intend to use a sort against him, I think it's pretty clear the
witness has given me his most honest answers and that they are consistent
with the report. All I'm saying is that I want him to tell us whether
reading this paragraph has refreshed his recollection. If it has not
refreshed his recollection, then we're dealing with something different.
But if it has independently refreshed his recollection, I'm entitled to
ask him what his recollection is and then I was planning anyway to bring
out how they got to this vehicle.
MR. HULTMAN:
Let's use that procedure. You had a leading question. It didn't go to that
procedure.
MR. TAIKEFF: I
will do that with His Honor's permission.
THE COURT:
Very well.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
{4292}
Q (By Mr.
Taikeff) Agent Harvey, if there is a question outstanding I'm going to
withdraw it in order to ask you this one: Have you read the first
paragraph on page 8 of the 302?
A Yes.
Q In reading
that paragraph, is your recollection refreshed as to whether or not there
were any questions at all put to Mr. Anderson concerning a vehicle?
A Yes, sir.
Q Do you
recall the questions which were put to him?
A Specifically
the exact question, no, sir. But --
Q What was the
nature of the inquiry?
A The nature
of the question was after we established that Mr. Anderson knew Mr.
Casados, he knew what kind of car or vehicle Mr. Casados was driving.
Q What did he
tell you?
A He said that
Mr. Casados drove a red and white International Scout.
Q And who
brought up the subject, the name LeRoy Casados, you or Mr. Anderson?
A I have no
idea.
Q Look at the
report and tell me if in looking at the report you have an idea.
A The question
is which one, Mr. Adams or myself?
Q Oh, no. I'm
sorry. The agents on the one hand or the person being interviewed, Mr.
Anderson, on the other.
{4293}
A Oh, either
Mr. Adams or myself asked Mr. Anderson.
Q About Mr.
Casados?
A Yes.
Q Thank you
very much, sir.
MR. TAIKEFF: I
have no further questions.
MR. HULTMAN: I
have no questions, Your Honor.
THE COURT: You
may step down.
MR. TAIKEFF:
Special Agent Doyle, Your Honor.
JAMES DOYLE,
being first
duly sworn, testified as follows:
MR. TAIKEFF:
May I inquire, Your Honor?
THE COURT: You
may inquire.
DIRECT
EXAMINATION
BY MR. TAIKEFF:
Q Mr. Doyle,
have we ever met?
A No.
Q Have we ever
had any conversation ever?
A None at all.
A Has anyone
connected with the defense team ever questioned you or discussed with you
the testimony you're about to give?
A Never.
Q Your
occupation, sir?
A Special
agent with the Federal Bureau of Investigation.
Q For how long
have you been an agent?
A 25 years.
Q Where are
you regularly assigned at this time?
{4294}
A Albuquerque,
New Mexico.
Q Where were
you assigned in July, August, September of 1975?
A Albuquerque,
New Mexico.
Q Were you
ever assigned in connection with this case to the Rapid City office?
A I was not
assigned, I was sent there. I worked out of that office.
Q And did you
work in a team from time to time with any of the agents regularly assigned
to the Rapid City office in connection with this investigation?
A Yes, I did.
Q Are you able
to tell us from your memory the names of any such people?
A I worked
with J. Gary Adams.
Q Let's stop
there for a moment.
A All right.
Q How often
did you work with him?
A Oh, I would
say on approximately three occasions.
Q Do you have
an approximate idea or exact idea as to the dates when you worked with
him?
A I recall
several of the dates that I worked with him. October 10, 1975.
Q Where was
that, sir?
A That was in
Chinle, Arizona.
Q That was in
connection with what?
{4295}
A An interview
of Norman Brown.
Q Was there
any other agent present at that interview?
A Yes. There
was another, agent. Michael Nez.
Q Is he a
local FBI agent?
A He works
with me in the Albuquerque division; yes.
Q So you and
Agent Nez, N-e-z-?
A Right.
Q Were joined
by J. Gary Adams for an interview of Norman Brown on October 10, 1975, is
that right?
A That's
correct.
Q Was there
another person present at that interview?
A There was a
BIA officer, Frank Adaki.
Q Was there a
female person present?
A No.
Q Where did
this interview take place?
A It took
place in the BIA headquarters in Chinle, Arizona.
Q At that
particular interview was Norman Brown's mother present?
A No, she was
not.
Q Did you ever
attend any interview by Agent Adams when Norman Brown's mother was
present?
A No, I did
not.
Q Do you have
any knowledge of whether or not any such interview ever took place?
A I believe
there was. I don't recall the facts surrounding {4296} it.
Q Could you
tell us the approximate month and year or perhaps even the exact date?
A I know it
was prior to October 10 of 1975.
Q On October
10, 1975 a statement was taken from Norman Brown, is that correct?
A That's
correct.
Q And am I
correct in saying that that was a handwritten statement which he then
initialed and corrected and then signed?
A That's
correct.
{4297}
Q Now, were
there any other occasions when you worked with J. Gary Adams?
A Yes. I
worked with him in February of 1977.
Q That's two
months ago approximately?
A That's
correct.
Q And where
was that?
A That was in
Albuquerque, New Mexico.
Q And was
there any other agent on the Bureau present?
A None.
Q Just you and
him?
A Yes.
Q I gather
then that J. Gary Adams was transferred to the Albuquerque office?
A No, he was
not transferred. He was just there on assignment.
Q But he did
come to Albuquerque to interview Norman Brown, and he came there in
February to interview whom?
A Michael
Anderson.
Q I see, and
on these occasions where was he assigned?
A He was
assigned at Rapid City.
Q Do you have
information through official channels as to whether or not Michael
Anderson stands convicted in the State of Arizona of burglary?
MR. HULTMAN:
Your Honor, I object, this being irrelevant.
{4298}
THE COURT:
Sustained.
Q (By Mr.
Taikeff) Whom did you interview on February 3, 1977?
A On February
1st, 1975?
Q I apologize,
February 1st.
A Michael
Anderson, yes.
Q And that was
in Albuquerque, New Mexico?
A Yes, it was.
Q Did you have
any discussion with him about the fact or any fact concerning his status
as a convicted person in the course of that interview?
A I knew what
his status was.
Q Did you
discuss it with him in any way, did it come up at all?
A His status,
his status at that particular time?
Q Yes.
A Yes, I had
arrested him that day.
Q For what?
A Probation
violation.
Q Now, if a
person is on probation, doesn't that mean that he was convicted of a
crime?
A Yes.
Q And what
crime was he convicted of?
A I am not
sure. I believe it was burglary, I am not positive.
Q Was it a
state crime or a Federal crime?
{4299}
A It was a
Federal crime.
Q Was that
because it occurred on a Reservation in the State of Arizona?
A I am not
familiar with that charge at all.
Q When you
arrested him on February 1, 1977, as a probation violator, what act or
acts did he allegedly do which prompted him being arrested?
A He violated
his parole or his probation, I am not sure what those acts were.
Q I am going
to place before you, sir, two documents which have been previously marked
Defendant's Exhibit 88 for identification, and Defendant's Exhibit 220 for
identification; and I would ask whether you would confirm that the first
one -- in fact, both of them are 302's concerning interviews of Michael
Erwin Anderson on February 1, 1977?
A That's
correct.
Q Now, those
documents are not in evidence and should not be read from out loud.
I would ask
you not to use them unless you first indicate that you need them to
refresh your recollection, do you understand that, sir?
A Yes, I do.
Q Thank you. I
MR. HULTMAN:
Could I at least look, counsel, so I know?
{4300}
MR. TAIKEFF:
Yes, I will give you a look at them.
(Counsel
examines documents.)
Q (By Mr.
Taikeff) I think you have already answered this question, but I want to
make sure there is no ambiguity about it.
In Defendant's
Exhibit 220, the first paragraph reveals that certain things were done,
certain formalities?
A That's
correct.
Q Would you
briefly detail what they were just by name so we know what they are?
A
Photographed, fingerprinted.
Q And one
other thing?
A I must refer
to this.
Q Please do.
A (Examining)
Advised as to his rights.
Q Such as the
right to remain silent and things of that sort, is that correct?
A Correct,
yes.
Q Now, what
was this activity, those three things that you just detailed, connected to
or related to?
A The
photographing and fingerprinting of him was related, of course, to his
arrest, that he had just been arrested.
Q As a
probation violator?
A Correct. The
advice of rights was concerning whether or not he desired to be
interviewed at that time.
{4301}
Q Now, he said
something to you that morning at approximately 10:50 a.m., on that very
subject about whether or not he wanted to be interviewed, isn't that
correct?
A That's
correct.
Q And what did
he say?
A He said he
did not desire to be interviewed.
Q You told him
specifically what you wanted to interview him about, isn't that true?
A That's true.
Q What subject
matter?
A That's true.
Q What was
that subject matter?
A I wanted to
interview him concerning his activities on June 26th, 1975.
Q And he told
you in essence that he didn't care to discuss this matter, is that right?
A That's true.
Q Now, the
document which records or makes reference to the things that you testified
to in the last few minutes concerning the fingerprinting, his refusal, et
cetera, that is Defendant's Exhibit 220 for identification, am I right?
A That's
correct.
Q Now, the
other document, the other 302, in the main -- I am putting aside that
preamble paragraph on the first page -- in the main contains what, without
revealing its contents, {4302} just what is it?
A I don't
understand that question.
Q Well, look
at Defendant's Exhibit 88, the opening paragraph sort of tells you what
the 302 is all about, doesn't it?
A That's true.
Q And then
something follows which goes on for about seven pages?
A That's true.
Q Occupying
two-thirds of the first page and all of the remaining pages, is it fair to
say that something is reproduced or duplicated in this 302?
A I don't
understand that question.
Q All right.
Other than the preliminary paragraph, does the 302 contain the
reproduction of three separate writings?
A It is a
reproduction of a signed statement, yes.
Q But before
the signed statement, is there not a duplication of the advice of rights
form?
A That's true.
Q Then a
duplication of the waiver of rights form signed by Michael Anderson?
A That's
correct.
Q Followed
then by a copy or duplication or reproduction of a statement he made which
runs on for about five and a half pages?
A That's
correct.
{4303}
Q O.k. He was
read his rights at what time, according to that form or according to your
memory?
A 1:40 p.m.
Q And he then
signed a waiver saying basically, "I have heard my rights," I know them, I
understand them, I waive them, I give them up"?
A That's
correct.
Q And then he
proceeded to give a statement?
A That's
correct.
Q O.k. Would
you tell us what happened between 10:50 a.m. in the morning when he said
he didn't want to discuss the matter and 1:40, approximately, in the
afternoon when he waived I his constitutional rights and gave you a five
and a half page typewritten statement?
A When he was
-- when we talked to him in the morning which was very briefly, I called
the United States Marshal's office and it was determined that his hearing
would be at 4:00 o'clock that afternoon, and the United States Marshal
said, "Bring him over here, we will detain him here until his hearing
before the United States Magistrate."
At about 1:15
p.m., that day, I was en route to the airport with Gary Adams who was
returning to Rapid City when a United States Marshal called us and said
that Michael Anderson wanted to talk to us. This is when we returned at
about 1:40.
Q Do I
understand from your answer that you don't know what {4304} what happened
between 10:50 --
A
(Interrupting) I was not there between this time, 10:50 and 1:40.
Q Do you know
where Gary Adams was between 10:50 and the time you were going to the
airport with him?
A Yes, he was
with me.
Q You don't
have any knowledge of what may have changed Michael Anderson's mind?
A Nothing. He
was merely placed in a holding cell really in the United States Marshal's
office until he could make an appearance before the United States
Magistrate.
Q Now,
specifically with reference to Defendant's Exhibit 88 and its contents, I
would like you to look at the last page. Were you present when the
statement was taken from him?
A Yes, I was.
Q And how did
you go about the process of recording what he had to say, was there a
stenographer present?
A No, there
was not.
Q Was somebody
taking notes?
A Yes, I was.
Q Do you have
those notes?
A They are
available somewhere. I don't have them with me.
Q As a matter
of convenience, I won't ask you to do it now, but would you return after
the lunchbreak with your notes, please?
{4305}
A Yes, um-hum.
Q So you took
notes, someone was questioning, Anderson was answering, and then
eventually those notes became a statement, correct?
A That's
correct.
Q Anderson
read the statement, I assume?
A Yes.
Q And then he
signed it?
A Yes, he did.
Q And then it
was written up as a 302 so that it would be a permanent report of what
happened that particular afternoon?
A That's
correct.
Q Now, as the
questions were asked and the answers came in, assume you understood his
answers, at least you understood the words he was speaking?
A I did.
Q I would like
to ask you specifically about the fourth paragraph on that last page.
A On the last
page?
Q I will read
the words to you for the purpose of finding out what you understood at
that time. The paragraph in quotes says: When I returned to the top of the
hill and saw Peltier, Robideau and Butler down by the agents' cars, I then
saw a white and green car and a police car parked out by the road.
End of
paragraph.
{4306}
Do you recall
being there when a question was asked which resulted in that answer?
A I don't
recall the specific question, but I recall that particular phraseology,
yes.
Q O.k. May I
also assume that every single word that was spoken was not taken down
verbatim, but just the principal material, important answers that were
coming out as a result of an interview?
A That's
correct.
Q O.k. So we
are now focusing our attention on this particular answer which you
recorded and eventually got into the typewritten statement?
A Now, I did
not record this portion here (indicating).
Q Who did
that?
A Mr. Adams.
MR. TAIKEFF: I
see.
THE COURT: The
Court is in recess until 1:30.
(Whereupon, at
12:29 o'clock, p.m., the trial of the within cause was adjourned until
1:30 o'clock, p.m.)
{4307}
AFTERNOON
SESSION
Whereupon, the
following proceedings were had and entered of record on Tuesday afternoon,
April 12, 1977, at 1:30 o'clock, P.M., without the jury being present and
the defendant being present in person:
THE COURT: Mr.
Taikeff?
MR. TAIKEFF:
Your Honor, could I have just one minute to inform Your Honor of something
concerning Myrtle Poor Bear appearance?
THE COURT: You
may.
MR. TAIKEFF:
It's for the purpose of requesting that Your Honor give some instruction
to the marshal service. I received in the last few minutes from what I
consider to be a highly reliable source that Myrtle Poor Bear is at home
this very moment in Allen, South Dakota; and if the marshals will get off
their chairs and get into their cars they can execute Your Honor's
warrant.
THE COURT: You
can leave the courtroom and advise the marshal right now.
MR. TAIKEFF:
Mr. Ellison will do so right now, Your Honor.
THE COURT:
Very well.
MR. TAIKEFF:
Defense is ready for the jury, Your Honor.
THE COURT:
Before we bring in the jury I have before me Exhibit 219. I would ask, on
which I reserved ruling. I {4308} would ask first of all to state the
purpose for the exhibit.
MR. TAIKEFF:
The purpose, Your Honor, is to show that as respects those particular
agents whose names appear there that their 302's concerning the events of
the 26th were all dictated on June 30th; and the significance of that has
to be considered in light of the evidence adduced from one of the other
special agents, that as a rule agents will prefer to dictate their 302's
as quickly as possible, especially if they don't have the opportunity to
take notes.
All of the
agents in question here did not take notes because of the surrounding
circumstances. However, Your Honor will find in addition to those 302's
which relate to the activities of the 26th, the so-called principal
reports, or principal 302's, two other examples which are the only
examples of things which were dictated prior to June 30th showing that the
facilities are at least available to dictate those two particular items
which are listed.
Also the last
column on that exhibit shows the number of stenographers who worked on the
reports of but these four agents because the initials are different.
THE COURT: I'm
not sure that I follow everything that you said. I'm looking at these, at
this exhibit which shows dates of dictation: 6/30/75, 6/29/75, 6/30/75,
6/28/75, 5/30/75, 6/30/75, 6,/30/75. What is the significance of that?
MR. TAIKEFF:
Well, if Your Honor will note there is a {4309} designation. I can't see
the exact words because Your Honor has the exhibit, but it basically says
the principal activities on the reports of June 26th. I don't know the
exact words, but I'm sure Your Honor knows which entry I'm talking about.
That entry appears in every one of those.
THE COURT:
Would you come to the bench.
MR. TAIKEFF:
Certainly.
(Mr. Taikeff
approached the bench.)
THE COURT: It
shows interview. Each of these shows an interview on the 26th. I just read
the entries that show the dictation.
MR. TAIKEFF:
Yes. Now, in the case of Adams the first entry, likewise for Waring,
Coward and Skelly, those are the 302's, the main, principal report
concerning the events of June 26th. The witness who answered questions by
comparing the reports to this chart said that the entries were a fair
representation, and/or an accurate representation of what they purported
to be.
In each
instance each agent wrote one principal report concerning what he did from
the time he got there until the events concluded that day. In each
instance that report is described in the exact same words and is the first
entry where there are more, where there is more than one entry. In each
and every instance those items were dictated on June 30th.
However, Gary
Adams wrote an additional 302 concerning {4310} a certain specific subject
on June 26th; and Gerard Waring wrote a 302 concerning a special subtopic,
namely the crime scene search. Those two reports are listed here because
they demonstrate that it was possible to dictate to a stenographer on June
29th in the case of Gary Adams and on June 28th in the case of Waring,
which precludes any argument that there were no stenographers available to
them until the 30th or that the 30th was the first time that either of
these two had any occasion to sit down and do any reminiscing and
dictating about what went on on the 26th.
And the chart
is in fact, yes, I believe that, that basically what the chart illustrates
and it provides the facts which are a matter of record in Government
document which permit us a legitimate basis for making a certain argument
to the jury concerning the significance of the fact that four days after
this lengthy and complicated event all the key agents in the case who had
the most important stuff to say about sightings and other things all sat
down and dictated their reports at the same time.
It's a
memorialized fact in the Government's documentation. It is an argument we
wish to make to the jury concerning the certain aspects of certain reports
which have been thoroughly gone into on cross-examination; and it is
relevant to the argument that we wish to make concerning why the jury
should not believe certain things that the agents {4311} reported.
MR. SIKMA:
Your Honor, I would first of all argue that it's probably almost one of
the most irrelevant things that's been argued during the course of the
trial. Secondly, not only are the reports themselves inadmissible, now
we're trying to get into some theory as to the dates and times that they
were typed and who typed them which has nothing whatever to do with the
evidence in this case.
Also there's
no testimony at all that no one was available to take any dictation on
that day. Secondly, there is no testimony --
THE COURT: I
didn't understand the last comment you made.
MR. SIKMA:
There is no evidence in the record that there is absolutely no one
available to take dictation until the 30th. I think that the evidence will
show and is conclusive that because of the length and complexity of these
items or these 302's that were going to be dictated it was not the agents,
the agents were not able to be freed from the direct responsibilities of
investigation until the 30th, or in one case apparently the 29th and one
case the 28th.
You'll also
remember that in dealing with items such as finding specific items that's
an entirely different situation than dictating an event concerning what
happened Sometimes people make statements about what happened weeks after
{4312} they occur. These very specific items it would seem reasonable that
the agent would have that dictated at a somewhat earlier date. There is
also some evidence that it appears that the dates on the 302's are perhaps
typographical errors or inaccurate.
THE COURT:
There is evidence that one of these obviously has an inaccurate date on
it.
MR. SIKMA:
Yes. I would say for that reason it is totally irrelevant.
THE COURT:
Well, I think it has slight if any probative value, but it is a, it could
be the basis for an argument by counsel. And you have just made the
rebuttal argument which obviously could be made to the use of it. So I'm
going to overrule the objection and Exhibit 219 will be received.
Are you ready
for the jury?
MR. HULTMAN:
We are, Your Honor.
MR. TAIKEFF:
Yes, Your Honor.
THE COURT:
Jury may be brought in.
MR. TAIKEFF:
Before the jury comes in, Your Honor, may I ask if the witness has his
handwritten notes, that he produce them.
MR. HULTMAN:
Your Honor, as a matter of law on this the Government certainly objects on
the basis that have been previously indicated with reference to notes. And
there's no {4313} showing of any kind in this record that this witness is
not capable of recalling what the events were without referring to any
notes.
So it's on
both those grounds that we object. One, that there's no basis in law for
the production; but two, there's no showing even in the record at this
time as a basis for testimony.
MR. TAIKEFF:
Your Honor, I wasn't suggesting that this witness was incapable of
testifying without them. I was asking for them pursuant to Title 18,
Section 3500.
MR. HULTMAN:
And my resistance as a matter of law has been on that from the beginning.
THE COURT: And
what is the basis for your objection under 3500?
MR. HULTMAN:
There is not a statement, Your Honor, that's been given to the
prosecution.
Also it's his
witness, not ours so, Your Honor, 3500 material is a matter for me to give
at the time I call a witness. This is not my witness.
MR. TAIKEFF:
In the alternative I ask for them under Brady against Maryland.
MR. HULTMAN:
And I won't argue that I state my opposition on the record and the law.
THE COURT: The
objection to producing them under 2500 is sustained.
{4314}
The motion
that they be produced under Brady v. Maryland, I'll have to reserve ruling
on that until I have an opportunity to examine the notes.
MR. HULTMAN:
Could you right now, Your Honor? My understanding is they're very brief It
wouldn't take a matter of maybe two minutes.
THE COURT: You
may produce the notes. I will examine them.
MR. HULTMAN: I
haven't seen them myself but that's the information given to me. I asked
the agent to bring them.
MR. TAIKEFF:
Your Honor, I might suggest that it would be appropriate for Your Honor to
also see the 302 in question and perhaps respectfully suggest to the Court
that the Court keep in mind that there was testimony that there was a
certain aspect of the 302 which this witness took the notes for, and
apparently some other aspect for which agent Adams took the notes that it
may very well be that the relative portions for which this witness took
the notes may follow some indefinite pattern rather than the first quarter
or the first half or the first two-thirds.
It may cover
selectively certain portions of it. By implication then the balance of it
may have been a result of note taking or activity of Agent Adams. And on
that basis alone I think it is subject to scrutiny by the defense.
THE COURT: I
do not want to take the time to analyze {4315} this at this time and keep
the jury waiting.
MR. TAIKEFF: I
understand. There's no request that Your Honor do so.
THE COURT:
Very well. I'm going to have to continue reserving my ruling.
The jury may
be brought in.
Is there any
reason why you need these now, sir?
THE WITNESS:
No, sir.
THE COURT:
Very well.
MR. TAIKEFF:
Would it be possible for Your Honor to return the 302 temporarily?
THE COURT:
Yes.
MR. TAIKEFF: I
think the witness may need that
THE COURT:
I'll return this also, and then the, I'll have the Clerk get it from you
later
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT: The
false start in bringing you back into the courtroom was created by the
fact that a legal argument commenced as you were on your way in and we
hadn't anticipated it.
MR. TAIKEFF:
May I continue the interrogation, Your Honor?
THE COURT: You
may
MR. TAIKEFF:
Thank you.
{4316}
Q (By Mr.
Taikeff) I think at the time of the luncheon recess we had our attention
focused on page 7, the fourth paragraph.
A Yes.
Q Now, I would
like you to examine Defendant's Exhibit 88 for identification to tell me
whether, beginning on page 2, there is the statement? Yes or no.
A Yes.
Q And whether
that statement continues to develop generally peaking in a chronological
way beginning the end of May, 1975, to some specific comments about June
25, 1975; then on to the morning of June 26, 1975, the afternoon of June
26, 1975, finally in the middle of page 5 the night or first evening when
they were escaping, June 26, 1975, and then a series of events up to, and
I'm now in the middle of page 6 where Mr. Anderson makes, refers to the
fact that he was in Wichita, Kansas. Up to that point have I generally
described accurately the pattern of the statement?
{4317}
A Yes, you
have.
Q Now
immediately following that paragraph which is the third paragraph at page
6 in which there is reference to Mr. Anderson's presence in Wichita,
Kansas, the statement then adds a number of individual facts in a series
of about ten separate relative short paragraphs.
A Correct.
Q You mention
that Special Agent Adams took some of the notes and you took some of the
notes.
A That's
correct.
Q Is there any
relationship between what happened in the middle of page 6 and the point
where Agent Adams started taking notes?
A The point
with which Agent Adams started not only taking the notes but typing while
talking to Mr. Anderson.
Q Did I ever
ask you that question before anywhere in or out of this courtroom?
A No.
Q Did anybody,
government attorney, defense attorney, investigator, FBI agent or any
human being ever ask you the question that I just asked you?
A No.
MR. TAIKEFF:
Your Honor, I offer the entire document, Defendant's Exhibit 88, in
evidence.
MR. HULTMAN:
Same objections, Your Honor. And I {4318} might ask two or three questions
of voir dire to establish that basis if the Court has any question.
THE COURT: You
may.
MR. HULTMAN: I
just have a couple of three questions, Agent Doyle.
You were there
and participated in this event throughout the event, were you not?
THE WITNESS:
Yes, I was.
MR. HULTMAN:
And the things that went into the 302 which is Defendant's Exhibit 88, you
were present during all the time that the items, either the remarks of the
witness or any questions were asked, were either asked by you or by Agent
Adams and the answers and responses came in your presence, did they not?
THE WITNESS:
Yes, that's true.
MR. HULTMAN:
And in looking at proposed Exhibit 88, and I believe the date of this is
the 3rd of February in the year 1977, is that correct?
THE WITNESS:
That's correct.
MR. HULTMAN:
Through your independent memory and your recollection of the events after
having looked at proposed Exhibit 88, do you in fact recall the events as
they did happen?
THE WITNESS:
Yes, I do.
MR. HULTMAN: I
renew my objection, Your Honor.
{4319}
THE COURT: The
Court will reserve ruling.
MR. HULTMAN:
And I also as part of the objection that under 613 (b) I believe is the
section, Your Honor, that it was not shown at any other time to anybody.
Q (By Mr.
Taikeff) Now, sir, I'd like to return to the contents of that particular
paragraph on page 7 which in fact is the fourth paragraph. I think I'm
going to quote it again because it was before lunch when I last quoted it.
"When I returned to the top of the hill and saw Peltier, Robideau and
Butler down by the agents' cars, I then saw a white and green car and a
police car parked out by the road."
Now with
respect to the questioning and answering around that paragraph, that is to
say that part of the discussion, interrogation, call it what you will, was
any chart used, any document?
A No.
Q Based on
what you heard leading up to this specific answer which is in quotation,
was there any identification in any other way besides the word "white and
green car and a police car to identify the vehicles which were being
talked about?
A Not that I
recall.
Q Do you
recall whether there was any reference to Highway 18?
A I don't
recall that. I believe that one portion there he said that he was looking
out towards Highway 18.
{4320}
Q In
connection with that paragraph?
A Not in
connection with that paragraph.
Q I'm only
talking--
A I'm sorry.
Q I'm sorry if
I mislead you.
I only mean in
reference to that paragraph.
I'm wondering
if you can help us in some way other than the words which are recorded
here to identify specifically from what you heard what was under
discussion at the time the white and green car being one vehicle and a
police car being the other vehicle parked out by the road were under
discussion on September, on February 1, 1977?
A I don't
recall at this point.
Q All right.
sir.
Have you ever
seen either Exhibit 71 which is behind you or a copy of it?
A No, I
haven't.
Q Did you hear
any discussion at all on February 1, '77 concerning Agent Adams arriving
in a car and a BIA police car arriving at approximately the same time and
the necessity for them backing up to get away from the shooting?
A No. I don't
recall that.
Q Okay.
Now, sir, in
that interview of February 1, and I'll {4321} tell you the page number
where you might look if you want to look, you're obviously not obligated
to do so. Page 3, the last five lines. What time did Michael Anderson say
that he was in tent city getting ready to eat?
A At 10:00
o'clock, A.M.
Q Now is it
possible that there was a typographical error and he said 11:30?
A I was going
to say about 10:00 o'clock A.M.
Q Now on page
2, paragraph 2 -- I'm sorry, sir -- page 4. Do you recall Mr. Anderson
saying something in his statement about his first sighting of the agents'
cars?
A Yes.
Q Now did he
say that when he first saw the agents they were lying prone and appeared
to be either dead or seriously wounded?
MR. HULTMAN:
Your Honor, again I no object again. This is the very matter that's been
gone into and repetitive.
MR. TAIKEFF:
Not with this witness, Your Honor.
MR. HULTMAN:
The questions have been asked and answered.
MR. TAIKEFF: I
did not ask this witness. I asked the other witness who took the statement
in September of 1975. That was from an entirely different document.
MR. HULTMAN:
What page are you on, Counsel?
MR. TAIKEFF:
I'm on page 4, Mr. Hultman.
{4322}
MR. HULTMAN: I
further object, Your Honor, on the grounds that now it is an attempt on
the part of Counsel to impeach a previous statement by now asking
questions of a witness concerning an individual without the use of the
other statement.
MR. TAIKEFF:
Your Honor, I'm not attempting to impeach the other witness. I'll state
for the record that the testimony of the other witness as to what he was
told on September 15, 1975 was accurate testimony. I am now demonstrating
what may be a change in what Anderson was saying to the agents. I'm not
attacking the credibility of that last agent who testified.
THE COURT: Are
you attacking the credibility of Mr. Anderson?
MR. TAIKEFF:
I'm trying to establish what Mr. Anderson said from competent witnesses at
various times.
THE COURT:
Well, I'm wondering why you may not be barred by rule 613 (b).
MR.TAIKEFF: I
have to take a look at the rule.
Yes. I don't
believe I am barred, Your Honor.
THE COURT:
Well, I assumed that you didn't believe you were barred. I'm asking you
why you don't believe --
MR. TAIKEFF: I
had to look because I didn't know the exact rule that Your Honor was
referring to.
MR. HULTMAN:
This has been the argument I made that {4323} the document has never been
shown to the particular witness. This has been the basis for my objection
primarily from the very beginning. The man who allegedly made the
statement when he had him available and a chance to ask him --
THE COURT: Had
you ever expressed that before?
MR. HULTMAN: I
thought I had, Your Honor. But maybe I haven't made myself clear. I have
been trying to do that.
MR. TAIKEFF: I
think he's confused about something. When we show a document to the
witness who didn't prepare the document, he's complaining that witness is
not responsible for what's in the document. That's the position the
government has taken. Now I've called a person who made the document to
authenticate Anderson is incompetent to tell us what's in that; document.
MR. HULTMAN:
May we approach the bench, Your Honor?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. HULTMAN:
Your Honor, from the beginning we have been through this particular
procedure now for at least three weeks and the point simply being that
procedurally if you're going to attack as Counsel has been attempting to
do there is a duty and an obligation, as I understand the rules, to first
present the witness himself and challenge him. Therein lies the first
threshold position you must take. Counsel has {4324} refused to do that in
any of the instances and here again we are again at the same situation.
He's trying to impeach by a document that he refused to show the witness
and challenge the witness on what it was he said at that time with the use
of the document and chooses rather to attack the witness without ever
showing him the document, without ever querying him on it through another
witness.
MR. TAIKEFF:
Your Honor, the witness has been afforded an opportunity to explain
continues to have an opportunity to explain because the government --
THE COURT:
Just a minute. What witness are we talking about at this moment?
MR. TAIKEFF:
The witness whom Your Honor believes is being impeached would have a right
to deny the saying.
THE COURT:
This is the point that I think that I'm making is that it seems to me what
you are trying to do through this witness is to impeach the testimony of
Michael Anderson and it seems to me that rule 613 (b) very clearly states
that "extrinsic evidence of a prior inconsistent statement by witnesses is
not admissible unless the witness is afforded an opportunity to explain or
deny the same. The opposite party afforded an opportunity to interrogate
him thereon."
MR. TAIKEFF:
"Or the interest of justice otherwise requires."
THE COURT: "Or
the interest of justice otherwise {4325} requires."
I do not
recall in the examination of Michael Anderson that you ever attempted to
impeach him on the basis of what he may have told this other witness that
is now on the stand.
MR. TAIKEFF:
May I refresh my recollection about one thing? I don't want to make a
statement on the record unless I'm sure I'm right factually.
THE COURT:
It's not my understanding, Mr. Hultman, that you specifically --
MR. HULTMAN: I
have not --
THE COURT: I
had that in mind this morning and was wondering whether there was going to
be an objection on that basis.
MR. HULTMAN: I
may not have articulated, Your Honor.
What I'm
trying to say is this has been the theory and basis of this particular
discussion from the beginning
MR. TAIKEFF:
Your Honor, at the very least we rely upon the provision here which gives
Your Honor discretion in the interest of justice to ignore the rule,
assuming that proceeding this way would be in violation of the Rule and
it's on this basis.
THE COURT:
When --
MR. TAIKEFF:
Anderson's the witness who testified on cross-examination that he was
threatened by Adams, that he {4326} would be beaten unless he told them
what they wanted to know Now I think that is a sufficient basis to
establish through other FBI agents what he said on one occasion, what he
said on the second occasion so that it could be compared with what he said
in court.
MR. HULTMAN:
Counsel --
THE COURT: I
do not see that the witness is on the stand and I do not recall that I
ever prevented you from cross-examining him on a statement that he may
have given to an interrogating FBI agent which you had available to you on
the 302, and this witness was obviously a very reluctant witness and I do
not see that justice, in other words, when I say reluctant witness, I
think he was more favorable to the defense than to the prosecution. I do
not see that justice requires under those circumstances that the Court
waive the requirements of Rule 613 (b).
MR. TAIKEFF:
As to the requirements of the Rule, he's not precluded from coming forward
on rebuttal and explaining and claiming that he didn't make the statement.
What more reliable evidence is there of what he said on those two
occasions than two neutral FBI agents who have had no involvement in this
particular case and who were there as functionairies, who have
participated in the preparation of a document which memorializes with a
great degree of accuracy what went on why should I be confronted with a
witness like {4327} Anderson whose posture is difficult to fathom. I don't
know whom he favors, whether it's the prosecution, the defense, himself or
something else. He's a kind of person that I wouldn't want to rely upon to
make a presentation to the jury and I trust maybe in some respects, I'm
not soliciting an answer, the government feels the same way about it. But
I've got a neutral person here who is competent, who is obviously quite
professional. You can't ask a more reliable evidence of what came in.
Now Rule 613
(b), that somebody should not be disadvantaged by having impeachment come
in out of the mouth of a third person when it's too late to come in and do
anything about it, but it's not too late because there is a rebuttal case
permitted here and if the government feels they have something they can
say about him in making that statement, they have an adequate opportunity
to do it.
THE COURT: As
I recall Anderson's a witness from Arizona. We are near the end of this
trial. You had your opportunity to cross-examine him with reference to any
discrepancies between what he testified in court and what may have
appeared in these 302s of the FBI. These 302s were made available to
defense prior to the trial. I don't know how long prior to trial but
obviously they were made available.
MR. TAIKEFF:
Availability is not an issue. That's conceded, Your Honor.
{4328}
THE COURT: The
very requirements of the rule just specifically forbid it unless --
MR. TAIKEFF:
But, Your Honor, it is clear from the language what the Rule has in mind.
It has in mind not cutting off somebody from offering his explanation.
There is not such s cutting off in this particular case.
THE COURT:
There is such a cutting off. The witness is no longer here and that's my
point.
MR. TAIKEFF:
Your Honor, the government could have this witness here long before they
finish their rebuttal case.
MR. HULTMAN:
But that isn't true.
MR. TAIKEFF:
Furthermore, this is one-witness who without question has perjured himself
in this courtroom when he said he was not convicted.
THE COURT: All
the more reason, if you are suggesting that the witness has perjured
himself, all the more reason why this cross-examination should have been
had of this witness at the time he was on the stand and not wait until
after he's a couple of thousand miles away and then seek to impeach him
through extrinsic evidence.
MR. TAIKEFF:
He's an unreliable witness. Why does the burden fall upon us to assume the
risk with him?
THE COURT:
Because the Rule requires it.
MR. TAIKEFF:
It only requires it if he does not have an {4329} opportunity to rebut if
the government chooses to rebut what is brought out here. That's what the
Rule contemplates.
THE COURT: The
Court has ruled. I'm not going to argue the point further. The impeaching
of Anderson by this witness is prevented under Rule 613 (b).
{4330}
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
MR. TAIKEFF: I
have no further questions of this witness, your Honor.
MR. HULTMAN: I
have no questions.
THE COURT: You
may step down.
(Witness
excused.)
MR. TAIKEFF: I
would like to have this marked for identification, please.
Your Honor,
this weapon has been marked Defendant's Exhibit 221 for identification. We
offer it in evidence as the AR-15 uncovered in the mobile home in Oregon.
I am showing the exhibit to the Government.
MR. HULTMAN:
Well, your Honor, I have no objection to the fact that's just been stated,
but I object on the grounds that there has been no relevancy of any kind
shown as far as the admission of this exhibit, for its materiality
THE COURT:
Excuse me. I was not able to follow everything that you said.
MR. HULTMAN:
Well, counsel made a statement in front of the jury that this is the
weapon that was found in the mobile home in Oregon; and I said I took no
issue with his statement, but I objected to the admissibility, that there
hasn't been any showing of either relevancy or materiality as far as the
particular weapon. That's my objection, {4331} your Honor.
MR. TAIKEFF: I
would call your Honor's attention to an exhibit which is in evidence.
MR. HULTMAN:
Well, if we are going to discuss the matter, I would appreciate it if we
could approach the bench.
THE COURT: You
may approach the bench.
(Whereupon,
the following proceedings were had at the bench:)
MR. HULTMAN:
Your Honor, first of all, on the record I want to enter my objection and
not in the presence of the jury because I don't want to be prejudiced any
further.
I object,
first of all, to the act of counsel to bring an exhibit -- exhibit it
before the jury, make a statement there without any showing of any kind
with any witness or any foundation of any kind.
Now, the
reason for my objection is very simple, that I do not take issue with the
fact -- in fact, we produced the weapon as per the request of counsel --
that this weapon was indeed found in the mobile home on November 14th in
Oregon; but I object, there has been no showing of any kind that it has
any relevancy or materiality in any way. That's the reason for my
objection.
MR. TAIKEFF: I
am prepared to demonstrate that, I think, quite briefly to your Honor.
{4332}
I am holding
both exhibits. As your Honor will see, except for the absence of the clip
in the newly marked exhibit, they are virtually identical, although the
flash suppressor on the front is not the same.
Now, there has
been a great deal of testimony concerning 34-AA which is introduced as a
look-alike; that this weapon, 34-AA looked essentially identical to the
weapon being carried by Leonard Peltier.
In addition,
there is almost a totally destroyed AR-15 which has been identified as the
weapon which fired the shell casing which was found in the trunk of the
car.
THE COURT: I
am aware of that.
MR. TAIKEFF:
As your Honor can see, these weapons are almost identical. Then the weapon
in my right hand which was newly marked could have easily been the gun in
Leonard's possession. It was found in the same mobile home in which he was
traveling.
THE COURT: It
might have been another one.
MR. TAIKEFF:
That is absolutely correct. That is the point, and that is exactly the
relevance.
MR. HULTMAN:
With one weapon there is all kinds of evidence in this record that ties it
directly to this Defendant. This weapon in no way -- other than the fact
it was found with him -- there is no way it is tied to him.
MR. TAIKEFF:
Why were all those guns introduced {4333} into evidence if they were not
tied to him? I am talking about all of the photographs of all the things
that were found in the mobile home which we objected to. If there is one
thing that has any relevance to this case, you object to it.
MR. HULTMAN:
One of the other items, your Honor, that has been introduced -- any weapon
that has been introduced in evidence has been tied back to that right
there --
THE COURT:
(Interrupting) Just a moment, counsel. The statement which counsel just
made, Mr. Taikeff just made, was that the photographs of other weapons
that were recovered were received in evidence from this Oregon episode.
There is also, as I recall, evidence that the AR-15 was not photographed,
and there was some hassle as to why it was not.
MR. HULTMAN:
Yes, I believe that's correct.
THE COURT: It
was said they had not found it yet.
MR. HULTMAN: I
believe that's correct.
THE COURT: I
really do not see any relevance in that showing of that weapon, and I
think the argument can be made very easily both ways, that "o.k., so he
had it, so what is the relevance?" -- but the fact that photographs were
received and the fact that apparently it is conceded that this weapon was
found, it seems to me it has about as {4334} much probative value as
Exhibit 34-AA. It is just another AR-15.
MR. HULTMAN:
Your Honor, I am not going to argue the first point with the Court.
The second
point I clearly argue though, the reason for 34-A, and it has been clear
from the beginning that it is only for the purpose to show what 34-A
looked like before it was burned. That's the only basis for entering it in
the record, and it is the only testimony --
MR. TAIKEFF:
(Interrupting) That's right. This one also looks like it, that's the
point. That's precisely the point.
MR. HULTMAN:
The only reason -- if you let me finish, counsel -- the only reason for
34-AA was to show as an illustration, not having any probative value other
than that it was the same type of weapon that 34-A specifically is. This
has not been introduced for the reason to say, counsel, that it is a
look-alike, period, for 34-A; and that's preposterous, you know it isn't.
MR. TAIKEFF:
It is shown as a look-alike for 34-AA, and the fact that it was recovered
in Oregon with the Defendant.
MR. HULTMAN:
Oh, now come on.
Well, your
Honor, let me ask counsel one question first.
{4335}
(Counsel
confer.)
MR. HULTMAN:
Your Honor, on the basis of the Court's observation, the Government would
withdraw its objection in light --
THE COURT:
(Interrupting) I was about to overrule it anyhow.
MR. HULTMAN:
At least it shows unanimity.
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
THE COURT:
Exhibit 221 is received. (Defendant's Exhibit No. 221, having been
previously duly marked for identification, so offered in evidence, was
received.)
MR. TAIKEFF:
Your Honor, the Marshal's service has requested the exhibit for a moment.
May we pause while they put a certain device on it?
THE COURT: I
understand they want to make it inoperable.
MR. TAIKEFF:
Yes.
MR. LOWE: Your
Honor, may Mr. Sikma and I approach the bench on another unrelated matter?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. LOWE: We
are going to try and get together to {4336} work out these laboratory
reports on weapons that will come up on probably which either we can agree
or which we might propose, and ask you to rule on.
Mechanically I
am not sure the easiest way to do it. I have been through all the lab
reports and made marginal notations as to certain items we would be
willing to delete, clothing items and things not related to the case.
In looking
this over, rather than take these voluminous reports and read them item by
item, would it be easier for you if we were to take the exhibits and use a
colored pen, like a red pen, and make marginal notations, "X's" or just a
line of some sort to indicate those which we would be willing to proffer
in the alternative; or do you have a way that you would like us to
proceed?
Maybe Bob has
some ideas of how to go about it.
MR. SIKMA: I
didn't quite understand you.
MR. LOWE: Take
the exhibits and mark in red pen, let's say, those items which we are
willing to --
THE COURT:
(Interrupting) This relates to those laboratory reports.
MR. LOWE: Give
the Judge something he can look at -- instead of reading it into the
record. Would that be an agreeable method for us to proceed?
THE COURT:
Anything that counsel can work out between themselves is agreeable.
{4337}
MR. LOWE: I am
thinking in terms of putting the red marks on the exhibit. You can make
rulings in the record. We could proffer them --
MR. SIKMA:
(Interrupting) Then on those items that come in --
MR. LOWE:
(Interrupting) We would Xerox, make Xerox composites that would eliminate
all of the items the Judge would not allow in. We would end up with
Exhibit 188-A, 192-A, and so forth, so the jury would never see the marks.
THE COURT: I
see no objection to that procedure.
MR. LOWE: We
will get together in the recess. Thank you, Judge.
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
MR. TAIKEFF:
If I may proceed, your Honor?
May the record
reflect I have removed the clip from Exhibit 34-AA. Your Honor will note
that Exhibit 221 has no clip in it. That's why I did that.
I would like
an opportunity to display these two weapons side by side to the jury.
THE COURT:
Very well.
MR. TAIKEFF: I
will show one side and then turn them over and show the other side.
(Counsel
displays to the jury.)
{4338}
MR. TAIKEFF:
Now, your Honor, I would like to display to the jury that portion of 34-A
which is the end of the barrel and Defendant's Exhibit 221 so the jury may
see the two objects side by side. May I do that?
THE COURT: Any
objection?
MR. HULTMAN:
No objection, since they are in evidence, your Honor.
THE COURT:
Very well.
(Counsel
displays to the jury.)
MR. TAIKEFF:
Your Honor, it has been suggested to me that perhaps the jury did not
understand that I was showing them the top part. May I walk in front of
the jury box?
THE COURT: I
think the jury understood what you were showing them, particularly in view
of your statement.
MR. TAIKEFF:
Ramona Bennett to the stand, please.
RAMONA
BENNETT,
being first
duly sworn, testified as follows:
MR. TAIKEFF:
May I approach the Clerk, your Honor?
THE COURT: You
may.
(Counsel
confer.)
THE CLERK:
Will the witness step forward?
(Whereupon,
the following proceedings were had at the bench:)
THE COURT:
Some of the native Americans who have {4339} testified have preferred to
be sworn on the pipe rather than the oath that we normally administer to
witnesses; and a reference was made as to whether you would have preferred
to have taken the oath on the pipe rather than the way it was administered
to you.
THE WITNESS: I
would tell the truth under any circumstance, so the pipe would have
special meaning.
THE COURT: But
you would tell the truth under any circumstances, and it makes no
difference in that respect, is that what you told me?
THE WITNESS:
Yes.
THE COURT:
Very well.
THE WITNESS:
The pipe would have more significance than --
THE COURT:
(Interrupting) Would it make any difference insofar as the truthfulness of
what you testified?
THE WITNESS:
No, no, sir.
THE COURT:
Very well. Thank you.
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
THE COURT:
Would counsel approach the bench? I want to report what the witness said.
(Whereupon,
the following proceedings were had at the bench:)
THE COURT: The
witness testified that she would tell {4340} the truth under either form
of oath. The pipe may have special significance. It would make no
difference as far as her telling the truth is concerned.
MR. TAIKEFF:
Fine, thank you.
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
MR. TAIKEFF:
May I inquire, your Honor?
THE COURT: You
may.
DIRECT
EXAMINATION
By MR. TAIKEFF:
Q Where is
your home?
A My home is
on the Puillup Reservation in Washington State. That would be around the
area of Tacoma.
Q Could you
lower the microphone a little bit and move it just a little closer to you
so it picks up your voice?
A Is this
better?
Q I don't
think so.
A little
closer.
THE COURT: The
chair does not move, but the microphone does.
A Is that
better?
Q (By Mr.
Taikeff) Yes, it is, thank you very much.
If you are
uncomfortable leaning forward, you can pull the microphone closer and lean
back.
Would you say
again the name of the Reservation?
A Puillup --
(spelling) P-u-i-l-l-u-p -- Tribe which is in {4341} Pierce County in
Washington State and covers some of the same geographical area as the City
of Tacoma.
{4342}
Q Do you have
an official standing with respect to that reservation?
A I'm the
chairwoman of the Puillup nation.
Q Is that the,
is that an office which is recognized by the Bureau of Indian Affairs, or
is that strictly a tribal matter without legal consequence?
A No. It is
recognized by the Bureau of Indian Affairs. I'm elected through the
regular Indian Reorganization Act process. It's an elected position.
Q Do you know
the person known as Leonard Peltier?
A Yes, I do.
Q Do you see
him in this courtroom?
A Yes.
Q Would you
point him out, please.
A
(Indicating.)
MR. TAIKEFF:
May the record reflect that the witness has pointed at the defendant.
Q (By Mr.
Taikeff) Was there every a time in your life when you lived in the same
area as Mr. Peltier?
A Yes.
Previous to living on the Puillup Reservation I lived in Seattle about
thirty miles away. While living in Seattle I was active with an
organization called the American Indian Women's Service League that
sponsors the Seattle Indian Center. And through this community work that I
first met him.
Q Could you
tell us in what year?
{4343}
A Yes. That
was, would be around '68 or '69.
Q And for how
long did you know him in the northwest, in that part of the country?
A About four
years.
Q Did he
reside there?
A Yes, he did.
Q Do you know
what his employment was during that period of time?
A Yes. He had
a business. He had an automotive repair business out in the south side of
Seattle in the industrial area and it was a fairly substantial business
with a working area maybe two and a half times as big as this room.
They did both
auto body work there and the basic mechanical repairs; and it was through
his work that I first encountered him because he was, well, he was
recommended as a good mechanic and also was a pretty easy touch, well, you
know, because it was a service organization. We would frequent --
MR. HULTMAN:
Well, I think we've gone beyond the recitation in response to the
question, Your Honor, and I would even request of counsel that if it is
going to be a character witness that we get to the proper questions and --
MR. TAIKEFF: I
agree with Mr. Hultman, Your Honor.
THE COURT:
Very well, proceed.
Q (By Mr.
Taikeff) Are you aware of your own personal knowledge of any community
work the defendant did during that {4344} four year period? I'm not
talking about things he did in connection with his business, I'm talking
about things he may have done in the community without compensation.
A In an
Indian, in an Indian community cars, Indian cars are really notorious,
just as a problem, and I think his voluntary services in that area was
pretty close to a full-time commitment.
No, I'm not
aware of any other involvement.
Q And have you
had occasion since the first time you met him or became aware of his
existence to speak with other people concerning him? Just tell me yes or
no.
A Yes.
Q And as a
result of speaking with these people have you some impressions as to what
his reputation is in that community where he lived?
A Yes. He made
a lot of friends there. A lot of the people are worried about him. Most
specifically Ella Akino.
MR. HULTMAN:
Well, again, Your Honor, I'm going to rise. Counsel knows the questions
and I hope that the witness would be instructed to respond accordingly
without going into a discussion of details of specific events.
A Most of them
--
MR. HULTMAN:
If it please.
THE COURT:
Just a moment. The problem arises because you are going beyond answering
the question. You should, {4345} Mr. Taikeff will ask you a question and
you should listen to the question and respond to the question and not
volunteer additional information.
Q (By Mr.
Taikeff) Tell us what characteristics if any you have discussed, that is
to say, characteristics of the defendant, personality traits by name, not
by incidents or specific individuals, that you can report to the Court and
jury as to what his reputation is. But first tell us the characteristics
in question, such as reputation for honesty for something of that sort.
I'm not trying to suggest to you what the answer is.
A He was known
as a helpful person, particularly by the elders.
Q Either based
upon your personal knowledge or upon his reputation in the community can
you tell us anything about the nature and quality of his relationship to
children?
A It was good.
He would always help, particularly families that had children, you know,
people that were, that were in trouble that had children.
Q Do you know
anything about his personal attitude towards children specifically?
A Well, I know
about children's attitudes towards him. They liked him.
MR. TAIKEFF: I
have no further questions.
{4346}
CROSS-EXAMINATION
BY MR. HULTMAN
Q I'm going to
have to ask some questions because I don't know who the witness is.
Would you
spell your last name for me. That may help me.
A
B-e-n-n-e-t-t.
Q Are you any
relation or a relative of Russell James Redner?
A No.
Q In any way?
A No.
Q All right.
That's why I'm asking because the names themselves, I did not understand
or what might possibly be a relationship.
Is it Ms.
Bennett, is that what you go by?
A Yes.
Q I assume
that your responses to counsel questioning didn't include the period of
June 26, 1975 to this day in the courtroom, that you were talking about
some other period?
A That would
be correct.
MR. HULTMAN: I
have no further questions.
MR. TAIKEFF:
Nothing further. The witness may be excused, Your Honor.
THE COURT: You
may step down and you are excused.
THE WITNESS:
Thank you.
MR. TAIKEFF:
Defense calls Special Agent Skelly.
{4347}
EDWARD A.
SKELLY, JR.
being first
duly sworn, testified as follows:
MR. TAIKEFF:
May I inquire, Your Honor?
THE COURT: You
may inquire.
DIRECT
EXAMINATION
BY MR. TAIKEFF
Q What is your
occupation, sir?
A Special
agent of the FBI.
Q Have you and
I ever met?
A No, sir.
Q Have we ever
spoken with each other?
A No, sir.
Q Have you
ever had an interview or any conversation with any member of the Peltier
defense team concerning the subject matter of your testimony here?
A No, sir.
Q You don't
know any of the questions that are going to be asked of you, do you?
A No, sir.
Q How long
have you been with the Federal Bureau of Investigation?
A I've been
employed as a special agent for five years.
Q And during
that five-year period where have you been assigned?
A I've been
assigned to Indianapolis, Indiana; Pine Ridge, or Rapid City, South
Dakota, and presently Kansas City.
Q What are the
dates, inclusive dates of your service out of {4348} the Rapid City
office?
A From
approximately July, 1973 until February of 1977.
Q As you know
on June 26, 1975 two agents and a Native American person died on the Pine
Ridge Reservation; is that correct?
A Yes, sir.
Q Since that
time have you worked on different aspects of the investigation and that
case?
A Yes, sir, I
have.
Q Did your
work on that case begin on the 26th of June, 1975?
A That is
correct.
Q Now, other
than the fact that you've been called here to be a witness has your work,
at least in an active sense, terminated with respect to that case, or is
it still something that you work on from time to time?
A I don't
think I understand the question, sir.
Q Well, I'll
put it a different way. You started working this case on June 26, 1975.
Putting aside the fact that you re sitting here and testifying in this
case when did your work end? When did your last assignment terminate on
that particular case?
A Right off
the top of my head, sir, it would -- within the last couple of months I
would say.
Q When you
first described your assignment to the Rapid City {4349} office you said
that you were assigned to the Pine Ridge Reservation. May we understand
from that that a great deal of your work when assigned to Rapid City was
on the reservation?
A That is
correct.
Q Did you
reside on the reservation?
A No, sir.
Q Did you live
in Rapid City?
A Yes, sir.
Q How far is
it from Rapid City to the reservation?
A To Pine
Ridge itself, or to various parts of the reservation?
Q Let's say
Pine Ridge. I think that is a good enough reference point.
A I would say
approximately a hundred and, hundred and ten miles.
Q And the FBI
has an office in Rapid City, does it not?
A Yes, sir.
Q And that
office is on the north side of town in the federal building?
A It's in the
federal building. I don't know if it could be classified as the north side
of town or the west side. It would be downtown Rapid City.
Q If you want
to go from the FBI office to the reservation do you have to drive through
Rapid City?
A Yes, sir.
Q How long
does it normally take you to make that trip if you {4350} make it by car?
A
Approximately two hours. An hour and forty-five minutes perhaps.
Q Now, you
made use of the FBI radio in the course of the afternoon of June 26, 1975,
did you not?
A Yes, sir, I
did.
Q I want to
ask you some questions about some of those transmissions, and I don't mean
to embarrass your memory. Would it assist you if you had some document to
which you could refer in case you wanted to refresh your recollection, or
do you think you could discuss your transmissions that afternoon strictly
from memory?
A I doubt if I
could do it straight from memory, sir.
MR. TAIKEFF:
May I have a moment, Your Honor, please?
THE COURT: You
may.
(Defense
counsel conferred.)
MR. TAIKEFF:
Your Honor, may I confer with Mr. Hultman for a moment?
THE COURT: You
may.
(Mr. Taikeff
and Mr. Hultman conferred.)
MR. TAIKEFF:
Your Honor, I am placing before the witness after consulting with Mr.
Hultman the entire document which had originally been marked Defendant's
Exhibit 75 for identification.
Q (By Mr.
Taikeff) And by way of advising the witness I want {4351} to state that
only the first four pages are in evidence, otherwise it's not in evidence
and should not be read from out loud. Do you understand that, sir?
A Yes, sir.
Q You may, of
course freely look at the document, but first I would like to have you try
to exhaust your independent recollection. If you have no recollection,
please feel free to say so and you can make use of the document. Do you
understand that?
A Yes, sir.
Q Sometime
shortly after 2:00 P.M. do you recall making a transmission about "a
couple of guys behind us over here to the left"?
A Over to the
left or the west?
Q Yes. Either
one, whichever of those versions might trigger your memory, and please be
aware of the fact that behind you is Government Exhibit 71 which is a plan
map of the immediate area, although it doesn't necessarily cover all the
territory that you might have been on that afternoon.
Does that
transmission, or does any transmission come to mind from the question that
I put to you?
A Yes, sir.
Basically what you say is true, that I did make a transmission to the
effect that two individuals had been seen to our position, to our west.
Q Could you
tell the Court and jury by making specific {4352} reference to the chart
where you were at that particular time?
A Yes, sir.
Should I --
THE COURT: You
may step down.
Q (By Mr.
Taikeff) You may step down, there's a pointer here.
A The area
that I was, where I was is not, is below the chart here.
Q All right.
A It would be
--
Q Was there a
highway near there?
A Yes, sir.
Well, a dirt road.
Q Do you know
whether it's referred to as Highway 35?
A Yes, sir.
Q All right.
You were in the vicinity of that, and where were you in terms of the
residences which are at the center of the chart, opposite, to the left or
to the right?
A I would say
opposite, down in this general direction (indicating). Bottom of it.
Q Somewhat to
the right, somewhat to the right as we look at it on the chart; is that
correct?
A Yes, sir, I
would say so.
Q Okay. Now,
from that location sometime after 2:00 o'clock two individuals were
spotted. Where were they spotted?
A After 2:00
o'clock?
Q Yes. And if
it would help you, I'm not trying to cause you {4353} to make any mistakes
inadvertently, look at 2:09 P.M. in the log, read the transmission just
before it and just after it and refresh your recollection to the extent
necessary. Perhaps you'd look at page 6, sir.
A Yes, sir, I
found it.
{4354}
A At that
particular time the area which I made reference was to our rear, or behind
us, to the west of this general area on the other side, the opposite side
of the highway or road known as Highway 35 (indicating).
Q So that it
was further away from the residences than you were, those residences being
at the center of Exhibit 71?
A Yes, sir.
Q Were those
people native American people?
A I didn't see
them, sir.
Q Do you know
if they were carrying weapons?
A No. I do
not.
Q Now shortly
after 3:00 o'clock, perhaps you would want to look at the transmission of
yours, unless you remember doing something shortly after 3:00 on the radio
--
A Not from my
head; no, sir.
Q Please take
a look at the entry for 3:09 P.M.
A Yes, sir.
Q Do you
recall that set of circumstances?
A Yes, sir, I
do.
Q How many
people were involved in that sighting?
A That
particular sighting?
Q Yes.
A I would say
perhaps two. I'd been given the information relayed by radio.
Q And what
were you told?
{4355}
A That three
or four individuals -- you said not to read, right?
Q But as to
the number of people, what were you told?
A Three or
four individuals were seen running.
Q And where
were they running to?
A Says
"running toward the Highway 18."
Q Now can you
give us some information about where they were and where they were headed?
A From that,
from the transmission that I made?
Q Well, having
looked at that perhaps it triggers your memory. That's what I'm asking
for, what you now recall.
A This
particular transmission here was a result of information that I had
received perhaps a few minutes before that.
Q You didn't
make the sighting yourself?
A No, sir, I
did not.
Q I see. Okay.
Five minutes
later check the paper in front of you. Don't read aloud.
A Uh-huh.
Q And tell us
whether reading that entry refreshes your recollection.
A Yes, sir.
Q Does that
involve the sighting of any individuals?
A Yes, sir.
Q What do you
recall and can you use the chart to illustrate {4356} what you recall?
A The fact
that that transmission referred to the earlier one of the three or four
individuals who had been spotted and it was an update of sorts. I was
repeating the information, passing it on to other units that three or four
individuals had been spotted.
Q Do you
recall whether it was reported to you or you observed them carrying
weapons?
A No, sir. I
did not observe myself. It was reported to me.
Q Now if you'd
be kind enough to look at the transmission at 3:49 and read it to
yourself, I'd like to know whether you recall anything about the facts
surrounding that transmission.
A Yes, sir.
Q What can you
tell us about that, and if you can relate it to Government's Exhibit 71.
A That refers
to, that particular transmission refers to another sighting, a second
sighting after which several of the members of the team that I was with
had left our position down in here, or off the chart (indicating).
Q Below the
chart?
A Below the
chart. And had moved basically in a northerly direction and somewhat down
towards, at least towards the wooded area or creek area (indicating).
Q Now there is
a house referred to in that incident, is there {4357} not?
A Yes, sir.
Q And can you
point out the house in question on the chart?
MR. HULTMAN:
Your Honor, I'm not sure at this point and in order I might interpose an
objection, maybe Counsel would even ask a question. I got the impression
that these transmissions are repeated transmissions not of things that he
observed. If we'll separate out what he saw rather than hearsay that he's
representing, maybe I won't have any objection. But if all that he is
repeating here is what somebody else told him, then I'm going to have an
objection to hearsay as to all of what he's testifying to at this time,
Your Honor.
Q (By Mr.
Taikeff) Agent Skelly, with respect to the activities of moving from where
you had been near Highway 35 in a northerly direction, is that something
you participated in personally?
A No, sir, it
is not.
Q All right. I
won't ask you any further details about that incident.
If you would
be seated. I don't think it will be necessary for you to use the pointer
anymore.
Do you recall
any incident that day involving a person on horseback?
A Only a
reported sighting of an individual on horseback {4358} which would have
been later on that day.
Q Now in
connection with whatever it is you recall about a person on horseback,
whether it's someone's comments or your own observation, do you recall any
sense impression that you had that there were a lot of people around in
the woods and on the hills, et cetera, other than law enforcement people?
MR. HULTMAN: I
object to this as calling for an opinion or conclusion of the witness for
which no proper foundation has been laid.
THE COURT:
Sustained.
Q (By Mr.
Taikeff) I place before you Defendant's Exhibit 104 for identification
which is a 302 of your activities on June 26, 1975, bearing the
transcription date of July 4 and ask you to read to yourself the paragraph
which begins at the bottom of page 4 and ends at the top of the next page.
A To myself?
Q To yourself,
please. It's not in evidence.
Now, sir,
you've just read the paragraph to yourself. Do you have any recollection
of the events which occurred on June 26th that caused you to write that
particular paragraph?
A I'm not
certain I know what you're asking.
Q Let's go
back and do it in short steps. Defendant's Exhibit 104 for identification
is a 302, correct?
A Yes, sir.
Q Who wrote
it?
{4359}
A I did.
Q It reports
your official activities on a certain day, right?
A Yes, sir.
Q What day?
A June 26,
1975.
Q What is it
based upon: notes you took, memory or what?
A
Recollections of mine.
Q Now in
writing the entire report, you also wrote the paragraph which you just
read to yourself?
A Yes, sir, I
did.
Q And was that
paragraph written based upon recollections of what occurred on June 26th?
A Yes, sir.
Q Now I would
like to know what you were recalling when you wrote the last sentence in
that paragraph which I'll show to you again so it won't be any doubt in
your mind as to what sentence I'm putting my attention on.
MR. HULTMAN:
Which paragraph, Counsel, are you referring to just out of curiosity?
MR. TAIKEFF:
I'm sorry.
A Yes, sir.
I've read that sentence.
Q (By Mr.
Taikeff) Okay.
Now can you
tell us something about what you were remembering or what was in your mind
when you dictated that last {4360} sentence?
A I believe in
my own mind what I had, what crossed my mind was the thought that some of,
or all of the escaping individuals might possibly be in a position to out
flank us.
Q Do you have
any idea what time of day that was?
A It was after
5:30. Probably closer to 6:00.
Q And where
were these individuals that you referred to?
A They were in
the hills.
May I?
Q Certainly.
A Again, I can
only give a general because it's below the chart, but it would have been
south and west, or southwesterly direction. Quite a ways from here, back
into a hilly area (indicating).
Q Let me
describe that for the record.
MR. TAIKEFF:
The witness has put the pointer approximately one-third of the way between
the right-hand edge and the left-hand edge and then pointed it downward to
show a position west of the lower edge of the chart one-third of the way
from the right to the left.
Q (By Mr.
Taikeff) Now that's where you were at the time you made certain
observations which ultimately found its way into this paragraph, am I
correct?
A Excuse me,
sir. No. I was incorrect by pointing down this direction (indicating). I
was a bit confused with my {4361} earlier position where I had been
earlier in the day.
Actually the
area that I had in mind would have been more up in this direction, more up
to the south I would say (indicating).
Q All right.
Then let me
describe for the chart the fact that you were now on the right-hand edge
about a quarter of the way up from the bottom and you've pointed out to
the right.
A Yes, sir. In
that general direction.
Q How far out
were you, would you say? Not in terms of the chart but in terms of actual
distance at the location.
A At what
time? At the time --
Q That you
made whatever observation that caused you to write that paragraph.
A Using this
as the center or what? From where?
Q Anyway you
prefer to describe it and I'll then put it into the record.
One
preliminary question. There is a highway that starts out in the chart
larger on the left-hand side at Highway 18 and then comes around in a
counterclockwise way and again after making at least a half a circle
intersects Highway 18 again.
A Right.
Q And I then,
we've all agreed that's called Highway 35. If it helps you to talk in
terms of Highway 35, that may be best {4362} for us all.
A Fine. That
would help.
The area that
I was referring to would have been south and west, or southwest of Highway
35, and using it as a guide I would say that the area would have been
approximately a quarter of a mile from Highway 35. I'm just not real sure.
Q A quarter of
a mile which way? A quarter of a mile south which means to the right on
the chart or a quarter of a mile west which means down on the chart?
A I would say
more to the south, right on the chart.
Q You were
more to the south?
A At that
particular time.
Q Imagine that
the chart was many times the size that it is extending both up, to the
right and down and put your pointer approximately where you think you were
at that time. Taking into account the scale which you can see at the top
of the chart and there is also measurement gradation on the pointer you're
holding.
A
Approximately in this area (indicating).
Q All right.
Could you hold your pointer there for a moment so that I can -- you were
then off the right-hand edge of the chart opposite the area we've referred
to as tent city and you say beyond the highway?
A Yes, sir.
Q How far
beyond?
{4363}
A That's where
I would have to guess at approximately a quarter of a mile or so beyond
35.
Q Thank you.
A May I?
Q Yes, please.
Do you recall
whether that afternoon you had any conversations with Special Agent
Coward?
A Yes, sir, I
did.
Q And in
particular did you have any conversation with Special Agent Coward
concerning his identification by name of any person who may have been
there that he might have seen?
A Yes, sir. A
one sided conversation. I didn't, I heard him tell me that he had seen
someone he felt he could identify.
Q And what did
he say?
A I don't
remember his exact words but they were to the effect that he felt that he
saw Leonard Peltier.
Q Now that
afternoon did you hear from anybody other than Agent Coward as you just
related, any information concerning the sighting of any person who had
been identified by name, who had been recognized in any way?
A No, sir, I
did not.
{4364}
Q Did you
participate in any daily meetings during the days which immediately
followed June 26th, meetings of Special Agents of the FBI?
A There were
daily conferences held, daily conferences held in the morning to go over
what areas needed to be worked or investigated.
Q And at these
conferences during the week, which followed June 26th, did the name,
Leonard Peltier, ever come up?
A I really
don't know for sure if it did or not, the first week.
MR. TAIKEFF:
Now, do you know of -- do you want me to proceed, your Honor?
THE COURT:
Yes.
Q (By Mr.
Taikeff) Do you know of any person who was seen and identified at that
location on June 26, 1975, other than Leonard Peltier; and when I ask you,
"Do you know," I am talking about what you may have learned in your
official capacity during the first few days after June 26th, 1975 from
attending meetings, from speaking with other agents?
A No, sir, not
-- no one positively identified.
Q Now, when
you met with your fellow agents in the mornings during the several days
which preceded -- withdrawn -- during the several days that followed June
26th, the investigation was under discussion, was it not?
A Yes, sir.
{4365}
Q And
assignments and things learned and new leads, et cetera were the kinds of
things you talked about, right?
A That's
correct.
Q Well, what
was the extent of the conversation during the first couple of days about
Leonard Peltier, how many minutes per day, how much of your meeting was
taken up by discussion of Leonard Peltier, if any?
A I really
don't recall how many or how much time may have been, if any. The first
few days that I can recall there was no mention of him.
Q By the way,
did you take any notes that day?
A No, sir, I
did not.
Q Is it fair
to assume that you were too busy and under the circumstances you just
couldn't stop to take notes?
A Yes.
Q Given the
nature of the activities you were involved in?
A Yes, sir, I
would say that would be a fair statement.
Q Did you
write any notes that night before you went to sleep?
A No, sir, I
did not.
Q Did you
write any notes the following day?
A Yes, sir, I
did.
Q Do you have
those notes?
A No, sir. The
notes that I made were not kept once I dictated the 302.
{4366}
Q What do you
mean by "not kept", is that a euphemism for "destroyed"?
MR. HULTMAN:
Well, I object to the characterization of counsel. The question was asked
and a fair response.
Q (By Mr.
Taikeff) What happened to the notes?
A Once the
FD-302 was dictated, the notes were thrown away.
Q And on what
day did you dictate your 302?
A The date
that I dictated it?
Q Yes.
A I don't
recall the exact date. It was three or four days after the 26th, I would
say.
Q I will show
you the 302 and ask you specifically if by looking at it you can tell us
the date on which you dictated it?
A (Examining)
Yes, sir, June the 30th.
MR. TAIKEFF:
Does your Honor wish me to proceed?
THE COURT: Are
you suggesting maybe you would like a recess?
MR. TAIKEFF:
No, I have a sense that your Honor might want to recess, and in some way
your Honor is accommodating me. I am prepared to go through or not if your
Honor chooses.
THE COURT: I
was going to recess in about five minutes.
MR. TAIKEFF: I
have five minutes right in front of me?
THE COURT: You
may proceed.
{4367}
MR. TAIKEFF:
Your Honor.
Q (By Mr.
Taikeff) You have just mentioned June 30th as the day you dictated your
report. Was June 30th a day of any kind of special activity?
A No, sir, not
that I know of.
Q Was it a day
devoted to reviewing the evidence up to that point any more so than any
other day?
A Well, for me
it was to a certain extent.
Q Can you
explain that, please?
A Yes, sir. On
the 27th of June I conducted a search of the vehicle of Special Agent
Ronald Williams.
Q That was on
the 27th?
A Yes, sir.
Q And can you
tie that into any special activity on the 30th?
A Yes, sir. It
was on the 30th that a review of the items that were found in Special
Agent Williams' car, an inventory of sorts was prepared.
Q Was there
any special reason why that activity occurred on June 30th?
A As opposed
to the 29th?
Q The day
before or the day after.
A No, sir, not
that I am aware of.
Q Were there
any other aspects of the case which was specifically reviewed on June 30th
other than what may normally have been done at your morning meeting?
{4368}
A Not to my
knowledge, sir.
Q Where were
you when you dictated your report on June 30?
A In Pine
Ridge, South Dakota.
Q In a
temporary office which had been set up?
A Yes, sir.
Q Was it a
large facility?
A It was
fairly large.
Q Was it one
room, or was it several rooms?
A Several
rooms.
Q Did you see
any of the other agents whom you knew from the Rapid City office there on
June 30th?
A I saw them
in the building at various times that day, yes, sir.
Q Was there a
separate area set aside for the stenographic pool so that if an agent
wanted to dictate a report, he would go to a certain location or would the
stenographers come to wherever the agents were?
A That too
would vary. Some men would go into the stenographic pool, and then others,
the stenographer would go to where they were.
Q On June
30th, 1975, did you see Agent J. Gary Adams in the office appearing to
dictate to one of the stenographers, that is to say, he was there, she was
there and she had a pad with a pencil and she was writing?
A I just don't
-- I don't remember when I saw him that day. {4369} It was a bad time.
Q How about
Agent Waring, do you know him?
A Yes, sir, I
do.
Q Do you know
whether, or can you recall whether you saw him in the office dictating
that day?
A Not to state
specifically, no, sir, I may very well have, but I just don't recall right
now.
Q How about
Agent Coward?
A I would have
to answer the same way. There were a number of agents in the building that
day, and on the days preceding it, and --
THE COURT:
Excuse me. The Court is in recess until 3:45.
(Recess
taken.)
{4370}
(Whereupon, at
3:35 o'clock, p.m., the following proceedings were had in chambers,
Messrs. Taikeff and Engelstein, and the Clerk of Court being present:)
MR. TAIKEFF:,
Your Honor, the reason we asked to come into chambers at this time is that
Miss Bagn has something which I think is important to advise your Honor
of; and we didn't think it appropriate that she approach the bench or
address the Court dressed as she is at this moment.
MISS BAGN:
This is my undercover uniform, your Honor.
MR. TAIKEFF:
Your Honor, we have had telephonic contact with Myrtle Poor Bear; and she
is going to call back shortly, and I am wondering whether your Honor would
allow Miss Bagn to briefly tell your Honor exactly what happened. She was
the one that had the telephone call.
THE COURT:
Yes, she may. Mr. Lowe has already been in here.
MR. TAIKEFF:
That was as a result of a special aspect of that, and it occurred to me
after I heard all of it that unless your Honor gives a specific order to
the Marshal's Service to actually go there and finally execute that
warrant, I fear that we are going to be out of witnesses before she gets
here; and it is very important to us that we produce her.
THE COURT:
Well, go ahead, Miss Bagn.
MISS BAGN: I
talked to Myrtle's sister, Clara, on {4371} the phone first; and she told
me that Myrtle was considering coming to Fargo because she was aware that
we had requested her presence here.
Clara further
said that Myrtle had been at home at least since Sunday and all day Monday
and all day today, and that there had been no Marshals or anyone else of
any official-looking nature near their house in Allen, South Dakota.
She also
stated that Myrtle was extremely scared and had been spending most of her
time apparently hiding in the attic of their home. She then put me --
excuse me.
Clara talked
then with her sister, Elaine, who was in the defense room and has been
subpoenaed as a defense witness. After their conversation Elaine asked me
to get on the phone with Myrtle, which I did. Myrtle said she was willing
to come up, that she was very scared. She didn't want to come alone and
wanted to preferably come with one of her sisters. She said that she
wanted the Marshals to be unaware of her coming up and expressed a desire
that perhaps the defense could have a ticket ready for her flight up here
so that she wouldn't have to go through the Marshals and that she was very
scared of doing that.
MR. TAIKEFF:
If I may add something, it was recommended that when there is further
telephonic contact -- and my {4372} understanding is that Myrtle Poor Bear
will call in a little while -- that Miss Bagn is going to explain to her
that the Marshals are a part of the court and not FBI or anybody else; but
I am terribly concerned that the situation is so delicately balanced that
she could actually disappear into the bushes, and in fact I use that
expression because earlier today a note was handed to me, an update from
one of the defense team who had apparently spoken with Chief Deputy
Warren; and his report was that she was out in the bushes, and they
couldn't find her.
Now, she has
been present more at home, more than any fugitive in the history of this
past decade; and I am afraid that it will require a specific instruction
from your Honor that a certain number of Marshals drop what they are doing
and go directly to her home and execute on that warrant in order for it to
be done.
THE COURT:
Mike, would you ask Mr. Warren if he would come up?
MISS BAGN:
Your Honor, if I might add for the record I spoke with Mr. Warren this
morning; and he informed me that at least one Marshal was going to be
looking for Miss Poor Bear today in the Pine Ridge and Allen area.
THE COURT: The
latest information that you have just given me, has that been given to Mr.
Warren?
MISS BAGN: No,
your Honor.
{4373}
MR. TAIKEFF:
We attempted to, the door was closed in the last 15 minutes. Mr. Lowe
attempted to report the matter to him. Since he wasn't around and the
break was almost over, we decided we better make this known to your Honor
immediately.
THE COURT:
That is all we need on the record unless you want the Marshal on the
record?
MR. TAIKEFF:
No, your Honor, we have no need to do that.
THE COURT: I
do not want you to run off. Is Mr. Warren coming in?
MR. NELSON:
Yes, Ordean just went to get him.
THE COURT:
That is all we need, Miss McArthur.
(Whereupon, at
3:45 o'clock, p.m., the reported chambers conference ended.)
{4374}
(Whereupon,
the following proceedings were had in the courtroom without the hearing
and presence of the jury:
THE COURT: The
delay was due to a conference with defense counsel relative to the attempt
to locate a witness.
Are counsel
ready for the jury?
MR. TAIKEFF:
Yes, Your Honor.
MR. HULTMAN:
Yes, Your Honor.
THE COURT:
Jury may be brought in.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
MR. TAIKEFF:
May I continue, Your Honor?
THE COURT: You
may.
Q (By Mr.
Taikeff) Mr. Skelly, I'd like to go back to something to see if you can
provide certain information. Perhaps you recall at the beginning of your
direct testimony I asked you some questions about a radio transmission at
3:14 P.M. which concerned, and I'm not suggesting you have personal
knowledge of the setting. I want you to understand that, I want Mr.
Hultman to understand that. You made a radio transmission concerning some
individuals who were spotted, apparently moving south right near the
swamp. Now, what I would like you to tell us, or by the way there's a
further bit of information which you apparently transmitted between the
swamp area and the plowed fields. Based on that information, I'm not
asking you whether you made the sighting yourself, can you point out for
{4375} the Court and jury what part of the diagram is referred to in that
subject matter?
A No, sir, I
honestly cannot.
Q Do you know
any swamp area around there?
A No, I don't
know of a swamp area at all. What I was under the impression -- nothing
but a creek ran through the wooded area is what I would have, may have
referred to as a swamp area, or the swamp.
Q Now, there
is reference to plowed fields and of course you probably notice on
Government's 71 there is one plowed field here (indicating), one plowed
field here (indicating) and I believe that the stream runs somewhere in
that vicinity, does it not?
A I would
think it would follow the tree line.
Q That is over
on this right-hand side?
A I don't know
that it would be right on the inside or outside but --
MR. HULTMAN:
Your Honor, I'm going to object on the ground that if this is a sighting
that this witness saw I have no objection to him stating what it is. But
if he's only relating some words that somebody else said to him I think
it's pure speculation for him from that point on.
MR. TAIKEFF:
Your Honor, I'm not talking about what the person saw. I'm trying to get a
topographical fact from this witness independent of what somebody else may
or may not {4376} have seen. And I thought I made that crystal clear.
MR. HULTMAN: I
am objecting on the grounds, Your Honor, that there has been no foundation
or any basis for this witness to testify in response to that question
unless he does know specifically.
THE COURT:
Well, he may testify if he knows. Do you know?
THE WITNESS:
The specific location of the creek?
MR. HULTMAN:
The specific radio broadcast transmission that counsel is asking you about
at this point.
MR. TAIKEFF:
I'm not asking him about a radio transmission, Your Honor. If I may
proceed, I'm asking about the topography of this area.
Q (By Mr.
Taikeff) And I want to know, sir, if you know in this area, and you may
extend your consideration a reasonable distance in every direction, or the
edges of this chart, where there is both the stream and two plowed fields
other than the particular area which I'm pointing to in the right-hand
third of Government's Exhibit 71?
A Other than
there?
Q Yes.
A I don't, I
don't know of any other, other than what is shown there.
Q Now, once
again, I am referring to a radio transmission at 3:49 P.M. I make no claim
that you made the observation, but {4377} presumably you said the words
"red house" in connection with some people who were chased back into the
red house and they fired at our guys. All I want to find out from you is
was there a red house at the Jumping Bull Compound, and I'm talking about
the central part of Government Exhibit 71?
A There was a
house that from where I was situated up here to be red.
Q And would
you point that out, please.
A I would say
this one (indicating).
Q And am I
correct, sir, that that is the one that had a little magnetic arrow which
the Government placed there which says "tan and red house"?
A Yes, sir.
Q Do you know
of any other red house in that area?
A No, sir, I
don't.
Q Thank you
very much, sir. If you'd be kind enough to resume your seat.
Now, on June
26, 1975 in the latter part of the morning you overheard certain radio
transmissions which you believe came from Special Agent Ronald Williams;
is that correct?
A Yes, sir.
Q And if you
can recall from memory, if you cannot, please let us know, do you recall
anything that Special Agent Williams said concerning the subject of cover
fire?
A I couldn't
go into any specifics, but I do recall a general {4378} statement to that
effect, yes, sir.
Q What does
the phrase "cover fire" mean? Protective cover fire?
A That's what
I would assume, yes, sir.
Q All right.
Now, I'm going to put before you Defendant's Exhibit 114 for
identification. I trust that you recognize that that's a 302 which you
wrote?
A Yes, sir, I
do.
Q And it
concerns events of June 26 which you dictated on June 30th, and would you
read to yourself only, because it's not in evidence, the first paragraph.
(Witness
examining Defendant's Exhibit 114.)
A Yes, sir.
Q (By Mr.
Taikeff) Now, does that refresh your recollection as to what you heard
over the FBI radio from the voice you believed to be that of Special Agent
Williams concerning cover fire or giving cover fire?
A Yes, sir, it
does.
Q Would you be
kind enough to tell the Court and jury about that radio transmission?
A From the
beginning of the 302?
Q No. I'm
concerned about the subject with cover fire which you quote in your 302.
And now that you've had a chance to look at it I assume you've refreshed
your recollection about it. I'd like you to tell the jury what Special
Agent Williams trans- {4379} mitted in that regard.
A Transmitted
words to the effect that if someone could get to the top of the ridge and
give us cover fire we might be able to get out of here.
Q Now, sir,
would you please tell the Court and jury about your interview of the
eyewitness to the killings of the agents.
MR. HULTMAN:
Your Honor, might we approach the bench?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. HULTMAN:
In order that I might properly object, is it my understanding now that you
are going to go into an interview of Myrtle Poor Bear?
MR. TAIKEFF:
Yes.
MR. HULTMAN:
Well, it's going to be the position of the Government, Your Honor, that
there is no relevancy of any kind until there is a showing of some kind,
the same as has been in the past, by what testimony this person would give
for this individual here. It's an attempt to get through this witness
without an opportunity on the part of the Government without that witness
being here to elicit testimony from the witness, Myrtle Poor Bear. And
that's the reason I raise the objection at this time to any -- that it's
pure hearsay at this particular point. And there could be no {4380}
probative value or materiality.
MR. TAIKEFF:
We disagree, but in an exercise of caution we would agree to a continuance
until she gets here before we proceed.
MR. HULTMAN:
Well, Your Honor, and I object to that clearly on the grounds that I made
it very clear on the record at a time in this record when Myrtle Poor Bear
was here. These defendants had talked to her; that this was the very risk
that was going to be run and this is where we were going to be sitting at
a date sometime in the future if at that time they didn't take advantage
of the fact that she was here.
MR. TAIKEFF:
I'm astounded at the suggestion, Your Honor, of her being arrested and of
her presence here as a witness.
MR. HULTMAN:
I'm talking about as a witness.
MR. TAIKEFF:
She was here, she was in the custody of the marshal service and Mr. Crooks
came to me one day after 5:00 o'clock and said, "If you want her she's
about to be released from protective custody." We supplied her with the
subpoena, applied to the Court for a warrant to hold her as a material
witness. We did everything which the law allows and permits.
THE COURT:
Except to ask for a bond, a cash bond.
MR. LOWE:
There was no bond entered into on the one {4381} that we did ask for. They
never entered into a personal recognizance bond.
MR. HULTMAN:
Plus, Your Honor, there could have been the proceedings that I had to
resort to and which I was indicating at that time that the witness was
here that that testimony could have been and should have been secured at
that time in order to protect --
MR. TAIKEFF:
That is totally contrary to the Government's position when we attempted --
when their witnesses were on the stand.
THE COURT: No.
I do not agree with Government counsel on that. But I do feel that counsel
for the defense knew that I had no hesitation in requiring a cash bond on
a material witness. The fact is they, well these counsel, while you were
not involved, you were certainly very closely associated with counsel and
went to the Court of Appeals on a matter where I required a substantial
cash bond on a material witness in this case. In this case counsel for
some reason known to yourselves did not want to ask for that type of a
bond which would enable this Court to hold that witness here.
MR. TAIKEFF:
The bond we asked for wasn't even set.
THE COURT:
That has nothing to do with it. The point is that a personal appearance
bond allowed her to go. Whether she -- the magistrate, I don't know what
happened, why the {4382} magistrate didn't take the personal appearance
bond, but all Mr. Lowe asked for was a personal appearance bond.
MR. LOWE: But,
Judge, if she posted a cash bond she still would have been able to go.
THE COURT: I
think if she had posted a cash bond there would have been a lot more
compulsion on her part to be present because somebody would have had to
raise the cash for the bond.
MR. LOWE: If
this was a felony and she failed to appear she would have been a lot more
compulsive and through no fault of the defense.
THE COURT: I
suspect if she would have been able to post bond she would not have been
able to make the bond and she would have been held.
MR. TAIKEFF: I
don't know why that assumption should be made, Your Honor. I mean, Angie
Long Visitor made her bond and her circumstances generally speaking are no
different than Myrtle Poor Bear's.
THE COURT: And
she appeared, too, because she had a bond and it was a substantial bond.
MR. TAIKEFF:
She appeared here because she was a person who always responded to court
process at all times throughout the history of these proceedings, not just
in connection with this trial.
MR. HULTMAN:
Your Honor, beyond that issue I would {4383} then go to the issue of even
were she here the testimony that we're about to elicit does not meet the
test of relevancy. Again what is the testimony going to show, where do we
go but to create a straw woman as we have argued this from the beginning
and then in some way try to destroy.
I don't know
what the position of counsel is that she was there, she wasn't there. It
cannot appear in the Government's case in chief in any way and I challenge
the materiality of it on any grounds. Well, as far as this witness, it's
hearsay.
MR. TAIKEFF:
It is not hearsay. I wish it would finally be a situation in this case
where what hearsay is is clearly understood. Hearsay is an out of court
declaration which is offered to prove the subject matter, or the matter
asserted within the declaration. This is not hearsay.
MR. HULTMAN:
It's an attempt to get through a statement which --
THE COURT:
Just a moment.
MR. HULTMAN:
By a witness who's not here, Your Honor.
MR. TAIKEFF:
May I inquire who the author of this is?
MR. HANSON:
Mark Suby, one of the judge's law clerks handed it to me.
MR. TAIKEFF:
Could we mark this for identification?
THE COURT: No.
That is not evidence in this case.
{4384}
I would like
to, I would like to have you state for the record what it is that you were
about to ask this witness and that counsel is objecting to.
MR. TAIKEFF: I
was going to ask him of circumstances surrounding his meeting this
witness, how he got to know about her, what investigation he did in
connection with what she had to say, to lay the foundation for a framework
in which her testimony has some meaning.
We're
certainly not offering it for the truth. When we, when we get her on the
stand we're obviously not offering it for the truth. She says that saw
Leonard Peltier shoot the agent.
THE COURT:
What other witnesses do you have this afternoon?
MR. TAIKEFF:
I'd have to look at my list, Your Honor.
THE COURT:
Very well.
MR. TAIKEFF:
With one exception, and that person is planned as our last witness, all
the remaining witnesses who are presently here relate to the Myrtle Poor
Bear aspect of the case. But I would remind Your Honor that Agent Wood has
yet to testify on the offer of proof.
THE COURT: I
have that in mind. That was the reason I was --
MR. TAIKEFF:
Yes. And there is, there are at least two witnesses who, or for whom
subpoenas were turned over to {4385} the marshal service some time ago,
who as far as we can tell have not yet been subpoenaed. And I couldn't say
anything about their appearance at this moment.
So basically
we don't have a witness that does not deal with the Myrtle Poor Bear
aspect available to testify. Although we have some six or seven witnesses
to call on that subject.
MR. HULTMAN:
Well, is Norman Zigrossi to testify to Myrtle Poor Bear?
MR. TAIKEFF:
No. Norman Zigrossi was subpoenaed on another subject. Has he responded to
the subpoena?
MR. HULTMAN:
Well, Counsel, everybody that you've asked to be here is here and been
sitting around. Now, if you are going to --
MR. TAIKEFF: I
have twice inquired about Zigrossi.
MR. HULTMAN:
You said a minute ago that the only witnesses were Myrtle Poor Bear
witnesses. Did I hear you right?
MR. TAIKEFF:
No, you did not hear me right. You'll see that you overheard there are two
other witnesses. I said there are two other witnesses for whom subpoenas
were issued some time ago and as far as I know they have not yet been
served or have not responded. And indeed those two people are Robert
Ecoffey and Mr. Zigrossi.
MR. HULTMAN:
Mr. Zigrossi is here.
{4386}
MR. TAIKEFF:
This is the first I've heard of it. I have twice inquired on the record.
He's a high-ranking official in the FBI. He's not going to report to my
office. He's going to report to your office.
MR. HULTMAN:
Well, are there any more that you want to inquire about?
THE COURT:
Just a moment. I'm trying to determine how we're going to proceed.
Is Mr.
Zigrossi someone you could put on at this time?
MR. TAIKEFF: I
need about a five minute interview with him, but I think I could.
MR. HULTMAN:
And, Your Honor, I think before we go on with him, again there's another
matter we ought to be heard on. It's my understanding that the subpoena
was a subpoena duces tecum. The item to be brought is an interview he had
with Rolling Stones, and I submit to this Court that there isn't anything
about -- I haven't heard the interview, but I'm, I've read the article;
that that particular recording has no relevancy of any kind as far as --
our materiality as far as the issues in this case.
MR. TAIKEFF: I
think that's a perceptive ability Mr. Hultman has by not even listening to
the tape, he knows there's nothing on there that's relevant.
MR. HULTMAN:
Just a little bit like your comment about Myrtle Poor Bear, or some
witness that hadn't appeared yet on {4387} the record, that you indicated
what her testimony is going to be. And I have at least read the article
from whence the interview came and that is my basis.
THE COURT: I
would suggest that the witness step down but be available yet this
afternoon if necessary; that you proceed with Mr. Zigrossi. Is it Zigrossi?
MR. HULTMAN:
Zigrossi.
THE COURT: And
then I think I'll allow the jury to leave for the day and we'll continue
with the evidence on the offer of proof. And then we may also explore this
Myrtle Poor Bear situation more fully.
MR. TAIKEFF:
Will Your Honor preserve this piece of paper?
THE COURT:
It's preserved. I'll give it to Ralph.
MR. TAIKEFF:
All right, thank you. May the record reflect that.
MR. HULTMAN:
Might I inquire. I've had one witness that I didn't know until she was on
the stand this morning, I still don't even know who she really is, but are
there any other witnesses now other than Myrtle Poor Bear witnesses and
Zigrossi, are there any other witnesses, Counsel, that you can give me
that are going to be called?
MR. TAIKEFF: I
have given them to you, but the answer to your question, there are no
additional witnesses other than those you mentioned except Robert Ecoffey
whom I previously {4388} identified, but there are no other witnesses that
I know of.
MR. HULTMAN:
Ecoffey, Zigrossi and Myrtle Poor Bear?
MR. TAIKEFF:
Right. And Norman Brown.
MR. HULTMAN:
Well, now, we add another one. Is there any more now?
MR. TAIKEFF: I
gave you all these names before.
MR. HULTMAN: I
know. You gave me a long list of many more that we haven't talked about.
MR. TAIKEFF:
I've given you every single name.
THE COURT:
Norman Brown --
MR. TAIKEFF:
He's our last witness, Your Honor. Saving him for last.
MR. HULTMAN:
Are there any other witnesses other than those you have named that you
expect to call at this time, not on a list you gave me? I'm asking here
and now.
MR. TAIKEFF: I
told you that all the names I gave you are all the witnesses. So if you
have a list you know all the names.
MR. HULTMAN:
Is it asking too much of counsel to at this time --
MR. TAIKEFF:
Repeat the names?
MR. HULTMAN:
Yes. That's all I'm asking.
MR. TAIKEFF:
Glad to repeat the names. If that's what you wanted all you had to do is
ask. Robert Ecoffey, when he shows up --
{4389}
THE COURT:
Excuse me. When do you have --
MR. HULTMAN: I
have no idea, Your Honor. He is not a governmental employee.
MR. TAIKEFF:
He is a BIA police officer, and I would like to indicate now, because
maybe it would affect Mr. Hultman, in this connection that the subpoena
for him has been out for some time and we've been getting an indication
from the marshal that they can't serve him.
THE COURT:
Well, I'm going to have the marshal brought in and we're going to make a
record on this business, who we can or cannot serve, or why he cannot
serve them. We'll do that after the jury leaves this afternoon.
MR. TAIKEFF:
To finish answering Mr. Hultman's question, Robert Ecoffey, Mr. Zigrossi,
Special Agent Wood, Special Agent Price, Florence Fire Thunder, Jeanette
Tallman, MaDonna Slow Bear, Ricky Little Boy, Theodore Poor Bear, Elaine
Poor Bear, Myrtle Poor Bear and Norman Brown.
MR. HULTMAN:
Now, it's my understanding, except for Ecoffey, so that I have no
misunderstanding, Ecoffey and Brown, the reason for calling any of the
others, is solely Myrtle Poor Bear. Is that what you've indicated?
MR. TAIKEFF:
That is correct, except that Wood is also here on the offer of proof.
MR. CROOKS:
What about Waring, I didn't hear. Is he now going to be scratched or what?
{4390}
MR. HULTMAN:
He didn't have anything to do with Myrtle Poor Bear.
MR. TAIKEFF: I
don't think that I asked for Mr. Waring on the definite list, He was only
on the possible list. I don't think he was asked to be here, actually
present.
MR. HULTMAN:
All right. Fine.
THE COURT:
Does the Government anticipate rebuttal witnesses?
MR. HULTMAN: I
do, Your Honor.
THE COURT: How
many do you expect to have?
MR. HULTMAN:
Well, depending upon where we go with Myrtle Poor Bear it could make a --
THE COURT:
Well, I'm just --
MR. HULTMAN: I
would say we're probably talking about at the outside, as far as the
Government's testimony, two hours at the most. Maybe an hour.
THE COURT:
This is really the information that I wanted.
MR. HULTMAN:
Yes.
MR. TAIKEFF:
May I now ask for a reciprocal discovery and ask the Government for the
names of its witnesses?
MR. HULTMAN: I
don't think I've got to make this determination until such time as I do.
You'll know ahead of time and I will.
MR. TAIKEFF:
Okay. I accept that.
{4391}
MR. HULTMAN:
Right here and now there's a lot of things imbalanced and I might end up
calling none of them.
MR. TAIKEFF: I
would assume that we would at least have overnight notice.
MR. HULTMAN:
No problem.
THE COURT:
We're talking about overnight notice. We're also talking about getting
this case to the jury this week.
MR. HULTMAN:
Well, let me ask you this, Counsel: When does it appear that you are going
to be -- are you going to be completing tomorrow do you think?
MR. TAIKEFF: I
suspect so. We've predicted either Tuesday or Wednesday and I think we're
pretty much on schedule.
MR. HULTMAN:
Do you think we would get to this then possibly tomorrow, the testimony
itself, if I had rebuttal testimony?
MR. TAIKEFF:
If not tomorrow surely the first thing the following morning or very close
to the --
MR. HULTMAN:
If I let you know tomorrow morning would that be soon enough once I do
know?
MR. TAIKEFF:
Yes. I would accept that as an adequate notice, yes.
MR. HULTMAN:
Okay. I will do that.
MR. TAIKEFF:
Your Honor, may I comment on one other {4392} fact, or that Your Honor
might want to consider with respect to scheduling. The question of the
argument on requested charge.
THE COURT:
Yes.
MR. TAIKEFF:
With no further comment. I just want to remind Your Honor about it.
THE COURT: I
have it in mind.
MR. TAIKEFF:
Thank you.
THE COURT: And
it was my intention to go into that as soon as the evidence is in. I'll
even hold a night session if necessary to go into it, but it's, but I do
not want to go into it until all the evidence is in.
MR. TAIKEFF:
Yes, Your Honor.
MR. HULTMAN:
Very good.
THE COURT:
Well, then this witness may step down temporarily.
MR. TAIKEFF:
Yes, Your Honor.
{4393}
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
THE COURT: Mr.
Skelly, you may step down subject to recall.
Have you
called another witness?
MR. TAIKEFF:
No, Your Honor. I don't believe we will at this particular time.
THE COURT: It
was my impression you were going to call Special Agent Zigrossi.
MR. TAIKEFF: I
thought I said to Your Honor I needed five minutes. I never met him. I
wanted to have a very brief conversation with him.
THE COURT: You
did. I forgot about that.
Why don't you
take your five minutes and go interview him.
Court will
stand at ease for five minutes.
(Recess
taken.)
THE COURT:
It's been reported to me that we are encountering some additional delay so
what I'm going to do is excuse the jury for the day and the court will
remain in session, take further evidence on the offer of proof that was
not completed yesterday and any other matters that need to be handled out
of the presence of the jury. I just feel that it's close enough to the
time we normally recess so that it would be an imposition to keep the jury
around any longer today.
{4394}
So, members of
the jury, you are excused then for today and insofar as you're concerned
the court is in recess until 9:00 o'clock tomorrow morning.
The Court will
again stand at ease until Counsel are ready to proceed.
(Recess
taken.)
(Whereupon,
the following proceedings were had in the courtroom without the hearing
and presence of the jury:)
THE COURT: Mr.
Taikeff.
MR. TAIKEFF:
Your Honor, I was advised that Your Honor had sent the jury home.
I did complete
the interview with Mr. Zigrossi. He will be called as a witness and I will
do so first thing tomorrow morning so he doesn't lose any time from his
usual duties.
THE COURT:
Very well.
MR. TAIKEFF: I
have the impression from something Your Honor said at the side bar that
Your Honor may wish at some point to take up the matter of subpoenas which
are still outstanding. Am I correct, Your Honor does intend to do that?
THE COURT: No.
Not necessarily. I was just attempting to get some quarterly procedure
between now and the time that the evidence is in. That does not create too
much disruption as far as the jury is concerned.
MR. TAIKEFF: I
would ask one thing then. At some {4395} time before Your Honor retires
for the day that you give the defense an opportunity to advise the Court
of certain things relating to certain subpoenas. At any time that may be
appropriate.
THE COURT: Are
you now talking about the Myrtle Poor Bear situation?
MR. TAIKEFF: I
have some further information based on further telephone calls I
personally made during that recess.
THE COURT: I
would like to have Mr. Warren come in and I'd like to get a record made on
this matter right now.
MR. SIKMA:
Your Honor, while we're waiting for Mr. Warren, could I make a record on
these government exhibits with regard to, excuse me, Defense exhibits that
relate to the laboratory reports in general. I found one item that we
agreed that we would stipulate to. For the rest of the items, I think
unless we would let them all in, which I think would be confusing to the
jury, about all I can find that is not marked out by defense counsel is
irrelevant and I haven't found anything in this regard that we can really
agree on.
THE COURT:
Well, I'm not ready to go into that matter at this time.
MR. SIKMA:
Very well.
THE COURT: The
Court will at this time go into the matter of the efforts to secure the
presence of witness Myrtle {4396} Poor Bear.
I wonder, Mr.
Warren, if you'd take the witness stand.
Mr. Taikeff,
you may now then report as to what progress you've made or anything you
may have to say on this matter.
MR. TAIKEFF:
Is it possible for me to elicit some information from Mr. Warren?
THE COURT:
Yes, you may.
HAROLD C.
WARREN,
being
previously sworn, testified as follows:
EXAMINATION
BY MR. TAIKEFF:
Q Mr. Warren,
I only want to elaborate upon the record matters concerning efforts
relating to this afternoon since the time we were all in the Judge's
chambers on the Myrtle Poor Bear matter.
MR. HULTMAN:
Not the United States.
MR. TAIKEFF:
No. I'm sorry. That was gone on ex parte basis and I stand corrected. The
government was not present.
Q (By Mr.
Taikeff) My understanding, and correct me if I state anything which is not
factually precise, was that a deputy United States Marshal from the Rapid
City office was on his way to Allen, South Dakota sometime this afternoon
to take care of in one respect or another the warrant outstanding for
Myrtle Poor Bear. Is that understanding of mine factually correct?
A I relayed
that to you in the Judge's chambers that I was {4397} led to believe that
a deputy marshal was enroute from Rapid City to the Allen, South Dakota
area in an attempt to locate Myrtle Poor Bear. That was in conjunction
with other duties that this deputy had to do.
I find that
now that this deputy had arrested two persons in the Pine Ridge area and
was obligated to return those two persons to Rapid City and could not go
to Allen, South Dakota, to attempt to locate Myrtle Poor Bear.
Q So that
means that this particular afternoon, as far as you know, there is no
marshal available to go to her house and execute the warrant?
A May I
explain?
Q Sure.
A The
circumstances.
Q Yes. Sure.
A Since we
departed from the Judge's chambers, arrangements have been made for a BIA
officer to go to and remain in the Allen, South Dakota area. He will be in
radio contact with our Rapid City office. On our notification where Myrtle
Poor Bear is Rapid City will advise the BIA officer who will attempt to
take Myrtle Poor Bear in custody. If this does not come about through a
telephone conversation that you referred to within the Judge's chambers to
assist us in this, and it's not possible to locate Myrtle Poor Bear, if
the BIA officer cannot locate Myrtle Poor Bear this afternoon with your
assistance of the {4398} telephone conversation, then a deputy marshal
will be dispatched tomorrow morning to Rapid City to spend the day in the
Pine Ridge, the Allen area attempting to locate Myrtle Poor Bear with or
without the assistance of Myrtle Poor Bear or your office, whatever it
might be. That's where we are at this point.
Q I see.
MR. TAIKEFF: I
have some information to advise the Court. I have no further questions at
this particular time.
I was advised
about halfway through my interview with Mr. Zigrossi that we had received
a telephone call from a certain person. I would gladly advise the Court of
the matter but I don't want to put the name on the record at this
particular time.
This person
apparently wants to assist Myrtle Poor Bear in getting here but reports,
and I'm now telling Your Honor what I was told on the telephone because I
had a number of telephone conversations in the last 15 minutes with this
person. Myrtle Poor Bear is apparently afraid to be brought here by
federal authorities and said to this man she's willing to come on her own
in the company of this man who has identified himself to me. He gave me a
telephone number at an institution of learning. I returned the phone call.
He answered the telephone so I'm reasonably certain that this person has
accurately described himself. He's a rather articulate person. I think he
is the person he says he is both in terms of his {4399} name and in terms
of the occupation he has described to me.
He said that
she is not unwilling to come but she's afraid to go with federal
authorities and I asked him whether he was in a position to come with her
tonight and I was told that he would do so. And so in view of what has
occurred so far in terms of the failure of the United States Marshal
service to accomplish the execution of the warrant, I would ask at this
particular time that Your Honor vacate the warrant temporarily and I will
be in a position to further advise Your Honor early tomorrow morning.
Because according to Mr. Warren's testimony there is morning that can be
done between now and then anyway and I think maybe we just may get lucky
with the services of private citizen who has offered to come to her aid.
Now if Your
Honor feels that we ought not to proceed this way --
THE COURT: We
may proceed this way but why vacate the warrant?
MR. TAIKEFF:
I'm just concerned on their way to the airport, which would surely be an
indication of their seriousness of actually getting on the flight for
which arrangements have been made, she may then get arrested and quite
frankly there would be no need to do that at this particular time.
THE COURT: If
you request I will vacate the warrant. I will advise you, however, that I
am not going to delay this trial.
{4400}
MR. TAIKEFF:
Your Honor, I am not going to waive any right to ask for a continuance
under all these circumstances. If it's a choice between protecting my
client and my concern for another person that seems to be suffering
unnecessary anguish in connection with this, I must of necessity choose my
client. But I think what has occurred here, whether it was inadvertent,
whether it was lack of appropriate motivation at other times is such that
a motion for a continuance were one necessary should be granted without
any hesitation.
Now the chief
deputy has already advised us pursuant to his testimony of a few minutes
ago that there is nothing that can be done until tomorrow anyway.
THE COURT: Mr.
Warren, you may step down. I think we're through with you.
MR. TAIKEFF:
I'm just trying in the interim to do something which may save a lot of
people a lot of effort and trouble. If Your Honor doesn't want me to do
that, because I have to give something up in order to make additional
effort that may not cause any delay but rather may permit us to go
forward, I won't make that effort.
THE COURT: You
make whatever effort you choose. I'm going to ask you at this time to
state for the record the testimony that you expect to elicit from this
witness.
MR. TAIKEFF: I
expect this witness will testify that she was induced by the FBI to make
false statements and give {4401} false statements and give false
statements under oath. That she will testify that she does not know
Leonard Peltier and has never seen him or met him or spoken with him in
her life and she was not at the Jumping Bull location on June 26th, 1975,
and probably on any other date and that through the efforts of the FBI she
was made to give a statement and then in turn, and I'm not sure of the
exact sequence, I think the affidavit came before the statement, that she
was caused to sign affidavits by the Federal Bureau of Investigation that
were not true.
THE COURT: And
were those used in the prosecution of Mr. Peltier?
MR. TAIKEFF:
Yes, they were.
THE COURT: In
what respect?
MR. TAIKEFF:
They were used in extraditing him from Canada.
THE COURT: And
were they used in any other respect other than extraditing him?
MR. TAIKEFF:
Yes, they were. They were used up to a point to qualify her as a potential
witness in this case and the government put her name on the witness list
both in the Cedar Rapids trial last summer and in this case here.
THE COURT: Was
she in fact used in the Cedar Rapids trial last summer?
MR.TAIKEFF:
She was not.
{4402}
THE COURT:
And, of course, she has not been used here.
MR. TAIKEFF:
Of course, Your Honor.
THE COURT: And
that is the testimony, that is the substance of the testimony that would
be --
MR. TAIKEFF:
Well, there is more to it. It's what they had her say which is equally
significant because it follows a very definite pattern. The content of it.
The act itself is significant, of course, but the content of what she was
made to say which was not true is very revealing.
THE COURT: And
assuming the truth of what you are suggesting, would you state for the
record how that is relevant to the issues in this case.
MR. LOWE: May
we have a moment, Your Honor?
MR. TAIKEFF:
May I confer with him?
We have
received reports from certain members of her family that she is terrified
of the FBI and we anticipate that we have been accurately advised in that
regard. When she gets here, if she gets here, and we interview her, we
expect that she will testify as to the basis of those fears, as to what
was said to her. Now we also believe that she may have been a paid FBI
informant; that she may have gotten some compensation for doing this. We
can only discover this by speaking with her directly to be certain that we
have testimony in that regard. But we believe that's the case.
{4403}
We have
information to that subject from one member of her family.
THE COURT: And
you have not answered my question as to how, assuming the truth of
everything that you say, how is that relevant to the issues in this case?
MR. TAIKEFF:
Because the conduct of the FBI in connection with the inducement of this
witness is a direct reflection on all of the evidence in this case. It
shows what -- if believed by the jury, it shows what the FBI has been
willing to do in an effort to connect this Defendant with this crime in
order to convict him.
THE COURT: So
what you are saying is that this would be offered not to impeach the
testimony of any particular witness, or any particular exhibit that has
been received in the trial of this matter, but that it is your theory that
this taints the entire case and impeaches in effect the entire Government
case in general.
MR. TAIKEFF:
The latter part of what your Honor said is correct, but the former part is
not correct.
THE COURT: All
right. State what is not correct.
MR. TAIKEFF:
Michael Anderson testified at this trial that he saw Butler, Robideau and
Peltier down by the cars in the vicinity of the agents. That's something
which she says, and the fact that the FBI got her to say that when she
wasn't even there is indicative of the value {4404} of that particular
piece of testimony coming out of the mouth of Michael Anderson, and that,
your Honor, should be considered in light of the fact that on his first
statement Michael Anderson said that when he first looked down at the
agents' cars, the very first time he saw those cars, the agents were lying
on the ground and were either dead or so severely wounded that they
couldn't move; and then testified here that he looked down and saw Leonard
Peltier and Robideau and Butler at the cars, and in addition to that, a
witness will testify that he was coerced into giving that testimony in a
--
THE COURT:
(Interrupting) Excuse me. Who was coerced?
MR. TAIKEFF:
That he, a witness was coerced, another witness was coerced into giving
that very same testimony and did so under oath before the Grand Jury that
indicted this Defendant, and it wasn't true; and the only reason he did it
was because he was threatened by the FBI.
So we have
three people, one of whom testified in this case, the person who lied
about having been convicted and who came here and testified that Leonard
Peltier was down by the cars; then we have a second person who perjured
himself before the Grand Jury and earlier admitted to Mr. Hultman --
MR. HULTMAN:
(Interrupting) That is not factual, {4405} counsel. I am going to rise to
that. You have stated that twice.
MR. TAIKEFF:
That is what he said.
MR. HULTMAN: I
don't care what he said. That's not necessarily a fact because it was
stated --
MR. TAIKEFF:
(Interrupting) What?
MR. HULTMAN:
Just because somebody has indicated something to you, still doesn't
necessarily mean it is fact. I have listened to this twice. I heard it
distinctly this time, but I wasn't sure I heard it before this time.
That's what is going to come from the witness chair when you put the
witness there, then we are going to find out the facts are.
MR. TAIKEFF:
That's precisely right.
MR. HULTMAN: I
will take that matter up with the witness when the time comes. I am not a
witness.
MR. TAIKEFF:
The witness will testify that he told Mr. Hultman in Cedar Rapids that he
in fact had lied before the Grand Jury, and Mr. Hultman, according to the
witness, said in that case, "I will not ask you that question," and Mr.
Hultman did not ask him that question at the last trial; and the record is
clear in the Grand Jury this witness said, "I saw Leonard and Bob and Dino
down by the cars." A crucial piece of evidence was not adduced from this
witness in the last trial, was not adduced from that witness in this
trial.
{4406}
So so far we
have one witness who was willing to come here, perjure himself about
whether he was convicted, and testify that he saw Leonard Peltier and two
others down at the cars.
We have a
second witness who did so perjure himself before the Grand Jury on that
very same subject but refused beyond that to give that testimony, and was
not questioned in Cedar Rapids as to that point, was not questioned here
as to that point although he testified that way before the Grand Jury. No
attempt was made to elicit that from him. No attempt was made to impeach
him with the fact that he had given that testimony before the Grand Jury.
And finally,
we have another witness who as far as I know was not called before the
Grand Jury, and I assume that that fact was correct, but who swore in a
series of affidavits to essentially the same fact except that at this time
she was standing right next to Leonard Peltier and pounding him on the
back trying to make him stop while he was doing it.
Now, if that's
not relevant to the jury's consideration of Michael Anderson's testimony
that he saw Leonard Peltier down by the cars, then nothing is and I am not
here. I am just having a dream.
THE COURT: The
testimony relative to Myrtle Poor {4407} Bear and her activities will
necessarily be presented to the Court initially on an offer of proof. The
Court will then make a determination as to whether or not it will be
permitted to go to the jury.
The Marshal
will be advised to hold up on the execution of the warrant in order to
give the defense an opportunity to bring the witness here by the method
that Mr. Taikeff suggested.
MR. TAIKEFF:
Thank you, your Honor.
THE COURT: And
the record may show that Mr. Lee just left the courtroom presumably to so
advise the Marshal.
MR. TAIKEFF:
Because of others speaking, I didn't hear what your Honor said last.
THE COURT: The
record may show that Deputy Marshal Lee just left the courtroom and headed
for the Marshal's office, presumably to advise Chief Deputy Warren of the
Court's ruling that the execution of the warrant for the arrest of Myrtle
Poor Bear will be held up in order to give Myrtle Poor Bear an opportunity
to appear as you suggested, that it was indicated to you that she would in
the presence of some other person.
MR. TAIKEFF:
May I assume, your Honor, that I may go to the Marshal and send someone to
the Marshal to then advise him of the flight number and the name of the
two passengers, and so he can prepay the ticket for Myrtle {4408} Poor
Bear, and we will make arrangements to prepay the ticket for the other
person if it is the Court's wish that we pay for the other person. We will
not quarrel with whatever decision your Honor makes in that regard.
THE COURT:
Really I think the Court's wish has nothing to do with it. I do not think
the Court has any authority to order payment for the other person.
MR. TAIKEFF:
We will make that arrangement.
THE COURT:
Very well. Yes, and you may contact the Marshal in that respect, give him
that information.
MR. TAIKEFF:
Thank you.
May I have a
moment to confer with Mr. Engelstein?
THE COURT: You
may.
MR. TAIKEFF:
Thank you, your Honor, for the opportunity.
THE COURT: Are
you now prepared to go forward with the offer of proof in connection with
the Jimmy Eagle matter?
MR. TAIKEFF:
Yes, with Agent Wood. We are prepared to conclude the offer of proof in
that regard.
May I state
the portion of the offer of proof that I was going to put into the record
concerning the attorney, Martin Amiotte?
THE COURT:
Yes, you may.
MR. TAIKEFF:
He was the attorney who represented Jimmy Eagle, and if he were called to
testify, he would {4409} testify that he gave cautionary instructions to
Mr. Eagle in the early part of July, in sum and substance corresponding to
what Mr. Eagle testified to.
THE COURT:
Very well. The record may so show.
MR. CROOKS:
Mr. Bienner just went down to get him.
WILLIAM B.
WOOD,
being first
duly sworn, testified as follows:
MR. TAIKEFF:
May I proceed, your Honor?
THE COURT: You
may proceed.
DIRECT
EXAMINATION
BY MR. TAIKEFF:
Q Mr. Wood,
are you a Special Agent of the Federal Bureau of Investigation?
A Yes, sir, I
am.
Q Since when?
A I joined the
Bureau in June of 1966.
Q And in July
of 1975, to which office were you assigned?
A I was on
special assignment in Rapid City, South Dakota.
Q When did
that special assignment to that office begin?
A June the
30th of that year.
Q Where had
you been transferred from?
A Baton Rouge,
Louisiana.
Q And until
when did you continue on temporary assignment to the Rapid City office?
A Until I was
permanently assigned there in, I believe it {4410} was August of that
year.
Q You continue
to be assigned there at this time?
A Yes, sir.
Q Now, on July 27, 1975, a statement was signed in your presence by a person named
Gregory Dewey Clifford. Do you recall that incident?
A What was the
date again, sir?
Q July 27,
1975.
A I don't
recall the exact date, but I did take a statement from Mr. Clifford.
MR. HULTMAN:
Your Honor, could I rise -- I don't mean to interrupt, counsel, but I do
have an objection other than the one that has been standing; and that is,
your Honor, that I would object that this testimony would not be relevant
for the reason that the defense has chosen not to call Mr. Clifford even
though he has been subpoenaed, is available, and the defense has chosen
not to call him. Therefore, again without the threshold issue being met,
any and all of the testimony concerning what that witness may or may not
have said is totally irrelevant for the reasons we have talked about
earlier today, as well as reasons which have been previously discussed. I
just want that put in the record at this particular time.
THE COURT: I
think counsel for the defense will concede that Mr. Clifford was available
and was not called, {4411} you chose not to call him?
MR. TAIKEFF:
That's absolutely correct, your Honor.
THE COURT:
Very well.
You may
continue --
MR. TAIKEFF:
(Interrupting) Thank you, your Honor.
THE COURT:
(Continuing) -- with your interrogation.
Q (By Mr.
Taikeff) I think you said that you didn't know the exact date, but you
recall taking the statement, is that right?
A Yes, that's
correct.
Q And you
remember the place where you took that statement?
A Yes, sir. It
was in the FBI office.
Q Located
where?
A In Rapid
City.
Q Is it
possible that it took place in Deadwood?
A No, sir, it
did not.
Q I show you
Defendant's Exhibit 207 which is in evidence for this offer of proof, and
ask whether that is a copy of the statement which was taken and signed on
July 27, 1975?
A (Examining).
MR. TAIKEFF:
207, I think, yes.
A Yes, sir.
Q (By Mr.
Taikeff) Now, doesn't that statement beneath the date show Deadwood, South
Dakota?
A Yes, sir, it
does.
{4412}
Q Could you
explain what that means then?
A Yes, sir.
The original interview, one of the interviews with Mr. Clifford took place
in the Rapid City office, and the typed up -- I think it was the typed up
statement, I don't recall exactly all the steps there, but the --
apparently that one was signed in Deadwood.
MR. TAIKEFF:
If I may have one moment, your Honor, please?
THE COURT: You
may.
(Counsel
confer.)
{4413}
Q Before
taking the stand this afternoon did you read any materials in an effort to
refresh your recollection about these incidents?
A I looked
over one copy of a -- one of my records.
Q What kind of
a record?
A It was a FD
302.
Q And am I
correct in assuming that that 302 covered your initial interview with Mr.
Clifford which preceded the signing of the July 27th statement?
A Yes, sir.
Q And do you
recall where you interviewed him on that earlier occasion?
A At that time
on the earlier occasion it was in Rapid City.
Q Was he on
that day a person who was remanded to the Pennington County Jail?
A Yes, sir.
Q Was he
facing federal or state charges or both?
A To the best
of my recollection I believe he was facing federal charges.
Q Do you know
what the charges were?
A No, sir, I
don't recall.
Q Did you get
any judicial process of any kind before you went over to see him?
A No, sir.
Q Did you take
him out of the jail?
{4414}
A Yes, sir.
Q Did you have
a court order or a writ that permitted you to take him out of the jail?
A No, sir.
MR. TAIKEFF:
Your Honor, there may be a misunderstanding on my part, but I'm under the
impression that we had an informal agreement, that is to say, between
myself and the Government, that all of the documents which have been
marked for the offer of proof are the entire body of written materials,
302's and signed statements.
Now, it is my
belief that there is no 302 amongst the marked documents for Mr. Clifford.
There was one for each of the others and a corresponding typed statement.
Now, it may due to inadvertence on our part or possibly the Government's
part, but in our files we did not have a 302 corresponding to Mr.
Clifford. And therefore we did not have one marked yesterday.
But if there
is one I would accept it on the basis that it was an oversight on the part
of either ourselves in not recognizing that we had it in the file, or on
the Government's part in not providing it to us. But I believe there is a
missing piece of paper at this particular time for the offer of proof.
MR. HULTMAN:
Well, Your Honor, I don't know. I felt that counsel has everything, but
maybe there is something. I {4415} have what was marked yesterday I
thought your 207 and on it, it's about a one paragraph 302 that I thought
was a part, one and a part of the same document maybe. Was that what you
are referring to, Counsel?
MR. TAIKEFF:
No. My Defendant's Exhibit 207 is a seven page double-spaced statement
that appears to have been made on plain white paper. Because I see no
indication that it was a 302 and I'm showing it to Government counsel.
MR. HULTMAN:
Okay. This is what I've got. You've got something different than I've got
then. It may be just a typed copy.
MR. TAIKEFF: I
think it's even more significant to say that Mr. Hultman has something
different than I have.
MR. HULTMAN:
Maybe it's a typed copy, I don't know. Well, let me see if I've got a copy
of it.
MR. TAIKEFF:
All right. I'll proceed while that matters is being looked into, Your
Honor.
THE COURT: You
may.
Q (By Mr.
Taikeff) Is it fair to say that the typed statement pretty much tracks the
302 and was a way of sort of formalizing what the earlier interview had
revealed?
A Without -- I
would say that probably it's fairly close, yes.
Q Okay. So for
the moment I can refer to Defendant's Exhibit 207 in making inquiries of
you.
{4416}
MR. HULTMAN:
Okay. It would appear, I mean I was not aware, but it tracks. I think the
302 is very similar to the statement.
Now, just a
minute, The other thing is, now I understand the reason. You almost --
THE COURT: You
just lost your document, Mr. Taikeff.
MR. HULTMAN:
Your Honor, this is a witness called by them and thus 3500 material was
not presented. And that's what this particular item is and that's the
reason, Your Honor.
MR. TAIKEFF: I
wasn't accusing Mr. Hultman of any bad faith, and upon my saying that I
hope you'll give the papers back to me.
MR. HULTMAN:
No, I do not intend to. It's not 3500 material. And that's the reason it
was not provided.
I didn't
realize that until now, but that is the reason, and that is the position
of the Government.
MR. TAIKEFF:
Well, Your Honor, in that case I'll have to ask for a continuance so I can
apply for a subpoena duces tecum to serve on the FBI to produce three,
302's.
MR. HULTMAN:
3500 prohibits that.
THE COURT: I
don't think you would be entitled to it under 3500.
MR. TAIKEFF:
To make my offer of proof, I cannot make my offer of proof complete
without having those 302's.
{4417}
MR. HULTMAN:
You would not be entitled if the witness was on the stand right now, Your
Honor, and that's the reason. I got the impression first that -- and I
know, I don't mean to infer that Mr. Taikeff was giving this impression,
but the impression I got was that he had been deprived of something to
which he was entitled. I then realized as I was about to give it to him
that that is not 3500 material. It is his witness and that's the reason
why it was not provided, and I do not intend to do it now.
MR. TAIKEFF:
May I ask then how come at some point in the proceedings the Government
turned over the 302's concerning High Bull and White Wing?
MR. HULTMAN:
Because of the fact that a given time there was some basis either because
of the witness being called or because of the statements in it as to Rule
16, or for some other reason. This is 3500 material and that's the reason
it was not given over.
MR. TAIKEFF:
Might it have been because the Government at one time was going to call
White Wing and High Bull?
MR. HULTMAN:
No, not whatsoever.
MR. TAIKEFF:
Because it would --
MR. HULTMAN:
It probably was Coward's 3500 material. Without me going back and seeing
whose name specifically was on what, I cannot conclude it. But the reason
is point blank that you don't have this material is that it does not, it's
{4418} 3500 material, that's the conclusion. The reason is this has not
been a witness that the Government has called, that's the reason.
MR. TAIKEFF:
Then how is it that the defense has exhibit, Defendant's 207 which is the
typed written version?
MR. HULTMAN:
You've gotten a lot of things along the line, Counsel, by way of the last
trial. That may be the reason you have this. And I don't know the reasons,
and I don't have to state any given reasons at this time.
MR. TAIKEFF:
May I indicate that the Government was indeed planning to call these three
witnesses.
MR. HULTMAN:
That is not the reason.
THE COURT:
Well, the statute seems to be quite clear. In any criminal prosecution
brought by the United States no statement or report in possession of the
United States which was made by a government witness or prospective
government witness other than the defendant shall be the subject of
subpoena discovery or inspection until said witness has testified on
direct examination in the trial of the case. After a witness called by the
United States has testified on direct examination the Court shall on
motion of the defendant order the United States to produce any statement
as hereinafter been defined in the possession of the witness which relates
to the subject matters as to which the witness has testified. If the
entire contents of any such statement relate to the {4419} subject matter
of the testimony of the witness the Court shall order it to be delivered
directly to the defendant for his examination and use.
Well, as
counsel for the Government has pointed out this witness has not been
called by the United States and as the Court has suggested the 35 -- the
statement is not producible under 18 U.S. Code, Section 3500, 3500.
MR. TAIKEFF:
Just to make sure that my record is protected, Your Honor, I ask for it
under Brady against Maryland.
THE COURT: The
United States may respond to that request.
{4420}
THE COURT;
Brady versus Maryland, as I understand it, requires the government to
produce any exculpatory information that it may have in its files material
to an issue in the case.
MR. HULTMAN:
Your Honor, my cup runneth over. My generosity being, I'm going to give
the documents to Mr. Taikeff since they're so critical to his case, so
critical at this time.
THE COURT: Did
you mess up the table when your cup runneth over?
MR. TAIKEFF.
Your Honor --
MR. LOWE: You
can tell, Mr. Crooks laughs.
MR. TAIKEFF:
Your Honor, it seems we have an epidemic of over running cups. Not only
did you have the benefit of Mr. Hultman's logess, indeed -- it's just been
reported to me that the United States Marshal service has just arrested
Myrtle Poor Bear.
THE COURT:
Very well. Now I presume then I should not direct them to release her.
MR. TAIKEFF:
That is absolutely correct, Your Honor.
THE COURT: The
reason, and I didn't make that request facetiously because the word has
just gone to the marshal service not to execute the warrant.
MR. TAIKEFF:
Apparently in connection with that very message being transmitted or
inquiries made by someone {4421} from the defense team, we got the answer
back that she's been arrested.
THE CLERK: One
second, Mr. Taikeff.
THE COURT: The
word has just been relayed to me she's been released.
MR. TAIKEFF:
I'm wondering whether we could sign the Marx brothers for this case.
THE COURT: Mr.
Lee, do you have --
MR. LEE: Chief
Warren came down and informed me that she had been arrested and she was
released.
THE COURT:
Because of the word?
MR. LEE: Yes,
sir.
THE COURT:
That's what I was concerned about. Find out if she can still be picked up.
Q (By Mr.
Taikeff) Mr. Wood, I am sorry I have to direct your attention to such
mundane details in the midst of all of this excitement but I would like to
ask you some questions about the statement, that is Defendant's Exhibit
207. Can you tell us anything about whether or not Mr. Clifford was
interviewed in Deadwood, South Dakota?
A Yes, sir, he
was.
Q Was he?
A A
continuation.
Q How did that
come about?
THE COURT: May
I interrupt?
{4422}
MR. TAIKEFF:
Yes, Your Honor.
THE COURT: Mr.
Warren?
MR. WARREN: I
relayed your instructions to the marshal at South Dakota to temporarily
vacate the warrant on Myrtle Poor Bear. He advised that he would notify
Rapid City and they would in turn advise Francis Two Bears, that BIA
officer at Allen, South Dakota, to disregard picking up Myrtle Poor Bear.
When that communication reached Francis Two Bears he at that time had
Myrtle Poor Bear in his custody. He was advised by the Marshal at South
Dakota to release her according to the court order which, which he did,
which the only other information that is at hand is Myrtle Poor Bear said
she was voluntarily coming to Fargo tonight.
THE COURT: She
was voluntarily coming tonight?
MR. WARREN:
She stated to Francis Two Bears.
THE COURT:
Should we leave it at that?
MR. TAIKEFF:
Yes, Your Honor. I believe she will in fact be here.
THE COURT:
Thank you.
Q (By Mr.
Taikeff) I believe, sir, I asked you how it came about that this second
installment of your contact was in Deadwood, South Dakota?
A The reason
for that was that Mr. Clifford's request he was transferred up to
Deadwood, South Dakota to the jail up there for his personal safety.
{4423}
Q Did you have
any conversation with him before he made the first statement to you
concerning helping him in any way?
A No.
Q In the jail
or out of jail?
A No, sir.
Q Did he
indicate to you any desire that you help him and which request you then
rejected?
A Did he ask
--
Q Did he make
a request of you? I asked you whether you made any offer of help, you said
no. Now I'm asking whether he made any request of you.
A He requested
that he be transferred to another place other than Pennington County Jail.
Q Other than
that, did he make any request of you?
A No, sir.
Q When he
first spoke with you was anybody else present?
A You mean
over at the jail?
Q Either at
the jail or at the Rapid City office.
A Yes, sir. To
the best of my recollection I think I had somebody with me at all times
when I talked with him.
Q Did you at
any time after he gave you the first statement ask him to get any specific
additional information if he could?
A No, sir.
Q He told you,
did he not, "That Jimmy Eagle said he was at a group of houses at the
reservation when an FBI agent approached {4424} the area in a car"?
A I would like
to have the benefit of reviewing of the document that you're reading from.
Q I believe I
could use the 302 while you use the document which is 207 which I trust
that they're sufficiently similar.
A Yes, sir.
Q Now I want
to touch the highlight points. I don't mean to suggest that this was the
entire statement that Mr. Clifford gave to you. Basically he said that "He
overheard Jimmy Eagle say that Jimmy Eagle was at a group of houses at the
reservation when an agent approached in a car. The agent was told to leave
because it was private land."
A Yes, sir.
Q "Eagle said
that there were many people at this location and they were armed and some
of them were armed with automatic weapons including M16s and M14s."
A Yes, sir.
Q Eagle then
related that a shot was fired in the direction of the agents' cars. One of
the agents got out of his car and returned the fire with his handgun while
the other agent got out of his car, went to the trunk of the car, opened
the trunk and got out what appeared to be a high powered rifle."
A Yes, sir.
Q "The agent
who had the rifle fired a shot and that agent was then shot and went down
where he could do nothing, or could {4425} not do anything."
A Yes, sir.
MR. TAIKEFF:
May I have just one moment, Your Honor?
THE COURT: You
may.
Q (By Mr.
Taikeff) "Then according to Clifford, "Eagle then described another
situation where he was standing approximately four feet from the other
agent, this agent attempting to get back into the automobile and was
dragged from the automobile by the Indians. He was standing by his
automobile thereafter and the Indians were questioning him regarding what
he was doing interfering on Indian land. Eagle said the agent was a friend
of the Indians, that he had Indians as friends, that he had a family and
he begged for his life and then Eagle said that the Indian standing to
Eagle's immediate left then fired at this agent with a .45 Thompson and
Eagle then indicated with his finger where the agent was struck across the
chest."
Does that
summarize the main part or the main aspect of that part of what Mr.
Clifford told you?
A Yes, sir.
Q Then
apparently Mr. Clifford told you that Eagle mentioned some of the items
which were taken either out of the FBI cars or from the agents, is that
correct?
A Yes, sir.
{4426}
Q Now what did
Mr. Clifford say to you when he got to that particular point in his
narrative? Did he say the words, "Eagle then related some of the items
which had been taken either out of the FBI cars or from the agents and
named the following items," or are those just your words?
A Those are
words, those are my words, I suppose.
{4427}
Q O.k. Now,
what were the words said to you by Clifford that resulted in your writing
those words which I just read?
A Basically he
said that Eagle told him about some things, some things that he had taken
out of the car. I don't recall his exact words.
Q And amongst
those items was a green army type jacket with FBI on the back, both of the
handguns and a shotgun, is that right -- that's not the complete list --
those were amongst the items?
A Yes, sir.
Q And the rest
of the statement concerned events which occurred later in the day which I
am not going to detail because that document in fact is in evidence for
the purposes of this offer of proof. I just want to get to certain
highlights and question you about those highlights.
Towards the
end of the statement -- you might want to look so that you can tell us
whether Clifford told you that Eagle said, that he escaped late at night
and hid out until a time when he had to go to court and decided to turn
himself in -- basically I am just touching.
A He said they
escaped around evening and then hid out, yes.
Q Now, what I
want to know is this: You were investigating the deaths of two FBI Agents
when you were involved in the activities which are reflected in these
documents, is that correct?
{4428}
A The taking
of the statements, you mean?
Q Yes.
A Yes.
Q And was
there any doubt in your mind when you were listening to Mr. Clifford that
if he was telling you the truth about what Jimmy Eagle said, that Jimmy
Eagle was involved in these events with other people?
A No, sir.
There was no doubt in my mind as to that.
Q Now,
assuming once again that Jimmy Eagle was saying this and he was speaking
truthfully, you knew that Jimmy Eagle was one of the participants in one
way or another, maybe just a witness, but surely very close to what was
happening, is that correct?
A It appeared
that way.
Q And didn't
it also appear that Jimmy Eagle apparently was standing right next to the
person who actually pulled the trigger on the gun that fired the bullets
that killed one of the agents?
A According to
what Mr. Clifford had told us.
Q Yes, I am
operating under the assumption that when Clifford told it to you for the
purposes of getting it down on paper, you were willing to assume at least
then and there that he had actually heard Jimmy Eagle saying these things;
if you believed absolutely that he wasn't telling you the truth, you
wouldn't have bothered to take it down and get a second statement, {4429}
would you?
MR. HULTMAN: I
object to that.
MR. TAIKEFF:
Why doesn't the witness answer the question?
THE COURT: The
witness may answer.
A I took the
information because it was offered.
Q (By Mr.
Taikeff) But then you went back again on a later date and formalized it in
a statement in virtually identical language and had him sign that
statement, isn't that correct?
A Yes, sir.
Q Now, when
Clifford was speaking with you, he chose his own words and you made notes,
is that right?
A Yes, sir.
Q And then you
took your notes and you wrote up this 302 which has not yet been marked
but which is typed on 7-26; date dictated, 7-26; date of interview, 7-25,
correct?
A Yes, sir.
Q So by the
time the 302 became a document in existence, it reflected to a
considerable extent your subjective way of describing what happened in the
first interview -- I am not saying you made up the contents, I am saying
you chose the words except to the extent that something is quoted or
specific words are referred to such as, Eagle then related some of the
items which had been taken either out of the FBI cars or from the agents
and named the following items, isn't that a perfect {4430} example of
words which you chose which you believed accurately reflected what took
place in the first interview?
A Yes, sir.
Q Now, when
you wrote up that typewritten statement which is No, 207, didn't you write
into that statement the very same words which I just read to you starting
with the three words, "Eagle then related"?
A Yes, sir.
Q Now, you
recognize, do you not, that the document in front of you, No. 207, is
supposed to be a statement that someone made to you, right?
A Yes, sir.
Q And isn't a
statement, as it is conventionally recognized by law enforcement officers,
supposed to be the words of the person who made the statement, basically
written in the first person?
A Yes, sir.
Q But in fact,
all you did was take the 302 and reproduce most of it, if not all of it,
and make it look like someone's statement which you then had him sign,
right?
A Yes, sir.
Q So the words
which are on 207, except to the extent where it appears to or purports to
quote somebody, is really your method of writing your impressions that you
got from someone else's statement to you of approximately a few days
earlier, {4431} two or three days earlier?
A Well, he was
given the statement to read, and he signed it.
Q I know he
read it, and I understand he signed it. I just want to make the record
clear that in reality, guided by what he told you, those are your words
that are on 207, not his words?
A Yes, sir.
Q Now, after
he signed the statement, did you ask him any questions?
A Not that I
recall.
Q You did want
to find out who killed those agents, didn't you?
A Certainly.
Q Did you at
any time ask Mr. Clifford, since he apparently was privy to some pretty
important statements by Mr. Eagle, to see if he could find out some more
to identify some of the other people?
A Yes, sir.
Q When did you
say that to him?
A We asked him
if he was -- if he had any further knowledge of any names or anything, and
he said that he didn't receive any further names -- any other names.
Q Did you put
that down in your 302?
A I would have
to look at it to see.
Q (Handing).
A (Examining)
No, I don't see it in there.
{4432}
Q Did you at
any time ask Mr. Clifford if he would keep his ears open and listen to
what Jimmy Eagle would say to see if he could get some additional
information?
A No, sir,
because after I talked to him he wasn't any longer in a position to do
that.
Q Was some
sort of a public announcement made about the fact that he had given you an
interview?
A No, sir.
Q In fact, Mr.
Clifford was not the only person who reported to the FBI that they had
overheard this conversation or one similar to it, isn't that true?
{4433}
A That's the
only one that I have knowledge about. That's the only one I interviewed.
Q I know it's
the only one you interviewed. Do you know a person by the name of Marion
High Bull?
A I've heard
of Marion High Bull, yes.
Q Did you know
that he was also a person that gave a statement about Jimmy Eagle?
A Yes, sir, I
had heard that.
Q Was he
transferred out of the Pennington County Jail?
A I don't
recall.
Q Was anybody
else who gave a statement transferred out of the Pennington County Jail?
A Not to my
knowledge.
Q After you
got the signed statement, 207, did you ever go back to contact Mr.
Clifford to see if he had any additional information about Jimmy Eagle?
A Yes, sir.
Q And when did
that take place?
A I think we
went back to see him on -- I don't recall the exact date. Just to see if
he had thought of anything else that he added. I don't recall the exact
date.
Q If he had
thought of anything else concerning the original, originally covered
conversation; is that correct?
A Yes, sir.
Q Was the last
contact you had with Clifford after he signed {4434} the formal statement?
A Yes, sir.
MR. TAIKEFF:
I'd like to have these three documents marked, Your Honor.
THE COURT:
They may be marked.
Q (By Mr.
Taikeff) Isn't it a fact, sir, that Clifford was serving a sentence when
you interviewed him?
A I don't
recall.
Q I show you
Defense Exhibit 225.
MR. TAIKEFF:
Your Honor, may I assume that 223, 224 and 225 just marked are considered
in evidence for purposes of the offer of proof?
THE COURT:
They may be received for purposes of the offer of proof.
Q (By Mr.
Taikeff) I'm showing you 225 and calling your attention to the last
paragraph.
A Okay.
Q He was
serving a three year federal sentence?
A Yes, sir.
Q For what
crime?
A Carnal
knowledge.
Q Now,
Pennington County Jail is not a penitentiary, is it not?
A No, sir, it
is not.
Q If he was
already serving a three year sentence, which would {4435} by definition be
for a felony, do you know why he was in Pennington County Jail and not in
a federal prison somewhere?
A No, sir, I
don't.
Q Do you know
whether there were any additional charges pending against him at the tine
he was in the Pennington County Jail?
A No, sir, I
don't recall that.
Q If I may
have one moment to confer with Mr. Lowe, Your Honor.
THE COURT: You
may.
(Defense
counsel conferred.)
MR. TAIKEFF:
Your Honor, I have no further questions on the offer of proof.
THE COURT:
Does the Government have any?
MR. HULTMAN:
Yes. I have just one question, Your Honor. Maybe two.
CROSS-EXAMINATION
BY MR. HULTMAN
Q Agent Wood,
is it fair for me to conclude that there are Legal, federal legal
proceedings held in both in Deadwood as well as in Rapid City? By that I
mean do they hold court and hold proceedings of various kinds there?
A Yes, sir.
Q And during
those times is it customary for anyone who might be related in any way to
those proceedings, either as a defendant or as a witness, if he is someone
who has been {4436} incarcerated to be in the Pennington County Jail?
A Yes, sir.
MR. HULTMAN: I
have no further questions.
MR. TAIKEFF:
No further questions, Your Honor.
THE COURT: You
may step down.
MR. HULTMAN:
Is the witness excused?
MR. TAIKEFF:
From the offer of proof. He's on our witness list in connection with the
defense.
THE COURT:
Does the -- are you through with your offer of proof, sir?
MR. TAIKEFF:
Yes, we're closed on that, Your Honor.
THE COURT:
Does the Government have anything to offer on the offer of proof?
MR. HULTMAN:
Government has nothing, Your Honor.
MR. LOWE: I
have a matter, before we conclude, of the Court. If you have something you
want to rule --
THE COURT: I'm
going to rule on the offer of proof.
MR. LOWE:
Fine, thank you.
Your Honor is
very quick sometimes to say court is recessed. I didn't want to get caught
sitting down.
THE COURT:
Probably about time to recess.
The Court
finds that the offer of proof has no probative value to any of the issues
in this case and that any relevancy that it might have is outweighed by
danger of confusion of the issues and misleading of the jury. And the
offer of proof is {4437} therefore denied.
You may now
present any other matters that you have.
MR. LOWE: Your
Honor, pursuant to our earlier discussion I have taken Government Exhibits
-- excuse me, Defense Exhibits 134, 135 and 187 through 192 and marked
with red pen in the left-hand margin thereof the portions which we would
be, in view of Your Honor's ruling, that you would not allow the entire
laboratory reports.
THE COURT:
Could you give me the numbers of those laboratory exhibits again?
MR. LOWE: Yes,
sir. 134, 135, and 187 through 192. These are the laboratory reports that
we offered the other day.
THE COURT: I'm
aware of what they are.
MR. LOWE: Your
Honor indicated you are not willing to allow the entire reports in and
over our exception to that ruling I did try to cull out items which we, at
least in view of your ruling, would suggest could be deleted from those
documents.
I marked those
in the left-hand margin in a red bracket and some of them are very
substantial and some reports leaving only a few items and other reports
there are only a couple of items deleted. And we would want substantially
the whole reports.
I have given
these to Mr. Sikma and I don't mean to {4438} suggest that he has had a
chance to digest or been able to respond, but I am concerned that Your
Honor would rule on these in a timely manner in view of the possibility
that the defense's case might close tomorrow in order to allow some
discussion and some possible alteration in order that Your Honor finds
some things to be unacceptable. It may be that we could make some further
adjustments.
I don't know
what Your Honor's ruling would be and Your Honor doesn't know until you
look at the documents. What I'm going to suggest is that early tomorrow,
perhaps first thing in the morning or perhaps even earlier than 9:00
o'clock, if Your Honor please, that perhaps we would be able to give Your
Honor the documents giving Mr. Sikma an opportunity to extract the
markings to his copies, or however he wants to do it, and to let Your
Honor look at them and perhaps hear discussion or ask us question or have
us present arguments as to the position we take so that if Your Honor
rules against us as to some of the items and there is some possible
adjustment to be made that we would have time to do it before we are
cramped up against the end of the defense case and don't have an
opportunity to do that without our case.
THE COURT:
Well, this does not interfere in any way, I mean --
MR. LOWE: Not
with Myrtle Poor Bear and those witnesses, {4439} no, sir.
THE COURT:
What I'm trying to ask is it would not interfere with your orderly
presentation of the remainder of your case?
MR. LOWE: None
at all, Your Honor.
THE COURT:
Basically you are asking for a ruling before you, before the case is
closed?
MR. LOWE: Yes,
sir, that's right. And I don't think it would affect any of the witnesses
that Mr. Taikeff has announced. We had indicated some question about
having Special Agent Hodge come back for additional questions if we
couldn't preserve through these documents the record of what we feel we
absolutely essentially need; and that would be a consideration. But I'm
hopeful that we can work it out and take care of what Your Honor has ruled
earlier.
In that regard
the Government did find the December 16, 1975 report which I asked for in
open court and advised the Government of and apparently I gather this is
one that they didn't have either because Mr. Sikma had looked one day and
neither one of us found it and neither did Mr, Hodge.
We do have
that now. The Clerk has marked it as Defendant's Exhibit 222 and I would
ask the Court to receive that as an offer along with the other laboratory
reports.
I have also
marked it in a similar manner and shown {4440} it to Mr. Sikma and ask
that it be simply included in the offer of those other laboratory reports
and considered at the same time. And I think Mr. Sikma has the others; am
I correct?
MR. SIKMA: You
gave them to the Clerk.
{4441}
MR. LOWE: I'll
return it to the Court as part of our offer.
THE COURT: Mr.
Sikma started to address the Court on part of your offer.
MR. SIKMA:
Yes, Your Honor. In the form that Counsel for the defendant has extracted
items which I believe were marked in red that he would be agreeable to
taking out of the report, they're just as confusing as ever and perhaps
even more so. The only things he agreed to take out were those things that
I can see any relation to this case and consequently as to the form that
Counsel has provided to the government, we object to them the same as we
did before. It was my understanding initially that Counsel would not want
to ask or cross-examine Special Agent Hodge on these matters because it
might irritate the jury by reading through all these items which
apparently have little or no connection to the case or which are, there
are a great number of items which aren't listed in reading those and
asking the witness about those would probably cause some confusion to the
jury and some irritation to the jury as a result of the fact that Counsel
is going into all these matters. For the same reason I would say that
these matters are just going to confuse the jury as the items are
extracted from the exhibits offered by the defendants. They are completely
without meaning as they presently stand and therefore the government
objects to them {4442} in the present form as suggested by defense
counsel. I don't think that a genuine effort is made here to make these
items more meaningful to the jury.
In addition to
this, I would say that there is one item which is related to the item
which was found under the bodies of the agents, or was in the body of the
agent. It states on the laboratory report that no human blood was found on
this item. I think it's one of the government's exhibits.
MR. LOWE: 34H.
MR. SIKMA:
34H. And we will stipulate to that fact. The other items I would state
that --
THE COURT:
34H?
MR. SIKMA:
Yes.
I would state
as far as the other items I don't think the defense counsel has really
extracted items to be presented into evidence which relate to this case. I
think it's just more confusing than it was before. It took me several
months to learn how to read these reports and understand them and I don't
think the jury could ever be expected to understand them. Therefore, I
think they're irrelevant under Rule 403.
MR. LOWE: Your
Honor, with regard, let me speak first of all to this bullet fragment,
34H, which Mr. Sikma addressed.
It had been my
recollection, I think we had maybe {4443} some side bar discussion, I know
we discussed with Counsel that in last year's trial there had been, I
thought there had been testimony that a laboratory found no blood but I
have not found any testimony. We found the laboratory report. It's also my
recollection the person, whoever it was that gave the testimony, said that
this could not have been one of the bullets that went through an agent
because there was no blood on it.
MR. SIKMA: I
don't think that's the case at all because it was found in the ground
under several inches of dirt and there was no testimony by any witness
concerning this item.
This was a
matter again that was stipulated to in the last trial but it was not
something that a witness testified in court about.
MR. LOWE: I
may have talked to a witness. Somebody has said that and I don't know. I
cannot find it anywhere in the transcripts or reports.
Do you contend
in fact there was no human blood on those bullet fragments that could have
been the result of one of the fatal shots? Does the government take a
position?
MR. SIKMA: I
think that would not necessarily exclude it as possibly one of the bullets
that went through the agents simply because it doesn't have human blood on
it. It was found under several inches of dirt and at the speed the {4444}
thing is traveling certainly would be cleared by going through several
inches of dirt.
MR. LOWE: I'll
pursue that further.
Let me respond
to the general question of what we have done. We did make a culling of
what we think is arguably not relevant. Although, we, of course, the whole
document should be allowed. Basically what we did is allowed all the
ammunition components found in the Jumping Bull area or weapons in the
same place, ammunition components found elsewhere but tied into that area.
We eliminated all kinds of other things like clothing, tools, explosives
and things that were not involved with the firearms and we also eliminated
virtually all of the firearm components, the cartridge casings and
cartridges that were found at Al Runnings in the raid or Portland or
wherever it might be and I think we made a significant culling.
If Your Honor
rules, for example, that we are not entitled to show all of the different
kinds of ammunition components in tent city, Your Honor has not said that,
if you make that ruling, then we may have some additional culling to do
and all I was asking Your Honor to do was make whatever ruling he's going
to make tomorrow morning to either allow or disallow it. If you disallow
it, give us guidance as to the basis of your disallowance so we can try
over our objection of Your Honor's ruling to bring the documents within
{4445} the
guidelines Your Honor would find acceptable so we can have some evidence
that relates to these ballistics information.
Now that's why
I just asked we hear that. It shouldn't take very long. The first thing in
the morning. I expect Your Honor can flip through quickly and see whether
Mr. Sikma is right or whether we have done a good enough job and then try
to come up with a final copy according to the rules. But we're trying in
earnest to avoid consecutive testimony and trying to come up with
something the Court would find acceptable.
Perhaps Your
Honor would want to have those either late this afternoon or the first
thing in the morning to look at and tell us what you want to do.
THE COURT:
Right now we're going to recess.
The Court is
in recess until 9:00 o'clock tomorrow morning.
(Whereupon, at
6:20 o'clock, P.M. a recess was taken until 9:00 o'clock A.M. on April 13,
1977.)
Back
Next