VOLUME III

Pages 300-520

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J. GARY ADAMS

FRIDAY MORNING SESSION

March 18, 1977

Whereupon, the following proceedings were had and entered of record on Friday morning, March 18, 1977, at 9:00 o'clock, a.m., the Defendant being present in person:

THE COURT: There are one or two matters that I want to mention.

The counsel will recall that at the conference prior to the opening of this trial which was held a week ago today I raised the question about bench conferences or some of you refer to it as side bar conferences and I stated that I would have no objection to a number of people from each side approaching the bench so long as it didn't create any problem in the conduct of the trial.

The court reporters tell me that it creates an almost impossible situation for them and the problem arises out of the propensity of two or three people to address the Court and each other at the same time so I'm going to have to limit the bench conferences to one spokesman from each side.

I have no objection to the additional counsel approaching the bench but they will have to decide when they approach the bench as to who's going to speak.

And I also would ask the counsel who are not speaking to, to the greatest extent possible, refrain from conversations between themselves which can be very distracting to the court reporter attempting to take down what needs to be taken down.

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The other matter that was before the Court was this matter of numbering of exhibits.

I am not going to order the renumbering of Exhibits 33F, G, K, G and H, 33F, G and K and 34G and H.

I will, if requested, give the jury a cautionary instruction that, to the effect that the numbering of exhibits has absolutely no significance at all.

MR. TAIKEFF: We do request that, Your Honor.

THE COURT: Very well.

Are you ready now then to have the jury brought in?

MR. TAIKEFF: Yes I don't know --

MR. HULTMAN: Your Honor, --

MR. TAIKEFF: I'm sorry.

MR. HULTMAN: Go ahead.

MR. TAIKEFF: Your Honor perhaps noticed the absence of Mr. Lowe. The cold that he has been fighting got very bad last night and he decided that it was in the best interest of his ability to recover to take three days in bed and we discussed the possibility of our being deprived of his services and we concluded that given our anticipation for today, in view of the thirty-five hundred material which was provided, that there would probably be no difficulty in my handling it in his absence.

If something should arise that is not anticipated or is otherwise unexpected, I would probably ask Your Honor for an {302} opportunity to consult with him. He's available by telephone.

But otherwise I believe we can proceed today without --

THE COURT: Thank you.

It was reported to me that there's, further reported to me that there are some, well, apparently Mr. Hultman and, did you indicate that there were some witnesses also that are going to want to catch a plane?

MR. HULTMAN: Yes, Your Honor.

There is a problem with reference to, and I would request to the Court for this one day and it would probably likewise help with the matter that Mr. Taikeff has referred to, that we adjourn somewhere around 4:30.

There is a 5:30 plane that if some people don't get that today, they don't get a plane until tomorrow and it creates a problem.

One of those, Your Honor, is very frankly myself. I've been away from my offices now for in excess of two weeks and I will be again at least two or three weeks and I would like an opportunity to have at least one day, Saturday, to cover a number of matters back in my office including the preparation of appellate matters and some matters for the Attorney General that I am working on and so if I could catch that plane I can get a day and if you can't there is no reason for me to leave because I can't get there and back.

THE COURT: Well, I am not inclined to grant that {303} request.

MR. HULTMAN: I understand, Your Honor.

THE COURT: However, you will be excused because you do have associate counsel to carry on and it may be that the evidence will develop in such a way that we will decide to recess at 4:30.

But I would normally expect to go until 5:00 o'clock and I mentioned before, one of the reason that we're keeping these hours that are longer than you would normally schedule is because we do have the sequestered jury.

MR. HULTMAN: I understand.

There is one other matter, Your Honor, and that is, on the record I would like to indicate to the Court that, as concerning the matter that was taken up in chambers without referring to it specifically other than that.

The Court indicated that the Government would have until the morning to make an indication and the indication that the Government would like to put on the record at this time is the fact that we join in the motion that the defendants made late yesterday afternoon.

THE COURT: The Court will then proceed pursuant to the agreement of counsel on that matter.

MR. TAIKEFF: Yes, Your Honor.

THE COURT: The jury may now be brought in.

(Whereupon, the jury returned to the courtroom and {304} the following further proceedings were had:)

(Whereupon, the witness having been previously sworn, resumed the stand and testified as follows:)

THE COURT: You may proceed.

MR. TAIKEFF: Thank you, Your Honor.

CROSS-EXAMINATION (Continued)

BY MR. TAIKEFF

Q Good morning, Mr. Adams.

A Morning.

Q Do you recall that at the time of the recess yesterday I was asking you some questions about radio transmissions --

A Yes, sir.

Q -- from you to Rapid City?

A Yes.

Q All right. For a moment I'm going to divert your attention to something else and we'll get back to that.

You said that you heard or felt some explosions during the course of the afternoon of June 26, is that right?

A Yes. I did.

Q How many such explosions?

A To the best of my recollection there were three or four.

Q And at what time of day?

A I cannot recall that, sir.

It was sometime after Miss LaDeau left about 1:30.

Q What was the period of time that Miss LaDeau was in the area?

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A I estimate it to be from 12:00 to 1:30.

Q And during this period of time am I correct that she was either in a specific house or in the area of those houses that I'm now pointing to which are labeled residences, log cabin, white house, green house?

A She was in the vicinity of those three houses and then I also saw her walk in a westerly direction.

Q Did you see where she went when she walked in a westerly direction?

A No. She came back toward the tan and red house and I saw her disappear off the crest of the plateau there in the direction of, well, when I saw her walk she'd been headed toward the vicinity which is marked bodies of SA Williams and SA Coler.

Q Now I've got my finger on that particular area.

A Back to your left, sir. I was just referring to the letter.

Q Over here?

A Yes. She was walking in that general direction.

Q Am I correct that this road along which we have the marker of Coler's car and these houses up here are not at the same elevation?

A That is correct; yes.

Q What would you say is the difference of the elevation, I ask you only for an approximation, between this road and the place where these houses are to be found?

A Approximately twenty feet.

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Q Now you were back in this area somewhere, were you not?

A Back toward the curve in the road there; yes.

Q Okay. That's the road that's to the left on the chart?

A Yes, sir.

Q When you are here can you see this road where we have the name Coler or Coler's car marked?

A No. You cannot.

Q How close do you have to come before you can see this road coming in this way from that road where you were?

A It would just be within a few feet of the crest of the plateau. The line depicts the crest of the plateau there; yes.

Q That's this curved line here to the south of the tan and red house?

A Yes.

Q You have to get up to the edge of that crest before you can see the road?

A Within a few feet of the crest.

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Q Like while Miss La Deau was in the area, at least the extent that you were able to personally see her, was there any firing going on?

A As I recall, there was not. But I think it was indicated to me by other people that there was during that time.

Q Didn't you say yesterday that during that period you received some fire?

A Yes. That would be a correct statement because, as I said, as I recall, there was not. Now when I think, when I prepared my documents I was under the impression there wasn't any fire at all that afternoon, but in talking with other agents now they, and discussing the matter, there could have been some fire during that hour from 12:30 to 1:30.

Q Is it accurate to say that your attention was focused in this area of the residences over here?

A During that time?

Q During that period; yes. Now only talking about that particular period of time.

A No I think my attention was centered more around getting assistance in there and getting law enforcement people around the south and the west sides of this particular area.

Q Is it fair to say though that you observed no shooting coming from the area of the residences during that period of time?

A I cannot positively state that; no. To the best of my {308} recollection there was none, but I will not positively state that there was none.

Q You can only relate to us what you saw or heard, is that correct?

A That is correct.

Q As far as what you saw or heard, was there any shooting coming from the area of the residences during that period?

A To the best of my recollection there was none.

Q Could you say where the firing was if there was -- withdrawn. Can you say where the firing came from during that period? Not based on your own observations, based on your investigation and consultation with other agents.

A It would have been in that same general vicinity there of the three houses.

Q And in which direction was the firing going?

A It could have gone to the west as there were agents across there monitoring the situation or it could have been back our direction or more to the northeast where there were other law enforcement people.

Q When you say to the west, you mean down in this area?

A Yes.

Q At l:30 in the afternoon there were law enforcement people down here near Coler's car?

A There were law enforcement people across the creek to the west.

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Q Where is that creek?

A It goes through the wooded area, sir.

Q Goes through this wooded area here, lower wooded area?

A Yes, it does.

Q Were there any people between the road where Coler's car was and the law enforcement people?

A At 1:30 in the afternoon?

Q Yes.

A No. To the best of my knowledge there wasn't.

Q Do you know what prevented them, if anything prevented them, from coming to the edge of the woods and looking at the road and seeing Coler's car or the other car if they were both there?

A There was a group of individuals led by Delmar Eastman entered the area to the north and northwest and proceeded in that direction. They at one time in the afternoon were in this area and I don't know what time it was they got in there. I know they received some fire from the creek area and had trouble making it through the area because of the heavy brush and the way the creek goes through there.

Q What you just referred to occurred late in the afternoon, didn't it?

A Well, Mr. Eastman was there shortly after I arrived at noon and they were organizing this thing. I was up at my car and all I know is later on that afternoon I talked with some {310} of the BI people and some of our agents that were in there and backed out. As far as what time they were in there, I have no idea.

Q Putting the time factor aside for the moment, do I understand that what you're saying is that somewhere, but unspecified exactly where in this lower area there was shooting going on?

MR. SIKMA: Your Honor, I would object. I think that's a clear misstatement of the record and the testimony of this witness.

MR. TAIKEFF: I'll withdraw the question, Your Honor.

THE COURT: Very well.

Q (By Mr. Taikeff) I want you to focus your attention on that period of time of approximately one hour which you estimate ended at 1:30 when Miss La Deau was attempting to negotiate and she spent some or most of her time in this area of the residences. Now do you know whether during that time there were law enforcement people down here near the creek or in the wooded area around the creek?

A No. I do not know for sure one way or the other.

Q Do you know whether a person standing at the edge of the wooded area where it says "Corral," the one on the right, do you know if a person stood there if that person could see the place where Coler's car was?

A No. I do not.

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MR. TAIKEFF: May I have a moment to look at the model, Your Honor.

Could the witness come over here for a moment.

THE COURT: I might mention this to Counsel for both sides. That exhibit which I believe was designated Exhibit 21 was identified but it has not been offered or received in evidence.

MR. TAIKEFF: Your Honor, I'm aware of that fact and I will phrase my questions accordingly. I'm assuming only the witness has the ability to look at this as if he were looking at something for identification.

MR. HULTMAN: Exhibit 20, Your Honor.

THE COURT: The Clerk just corrected me.

Do you have any objection to the use of the exhibit in that way?

MR. HULTMAN: No, Your Honor.

Q (By Mr. Taikeff) For purposes of refreshing your own recollection as to the terrain, I ask you to look at this and tell me yes or no whether I am now pointing at that part of the model which coincides with the lower portion of the chart where the word "Corral" appears twice?

A Yes.

Q And am I pointing to that thing which corresponds to the word "Corral" that's written on the right-hand side of the chart? {312}

A Yes. It appears that way.

Q Now look at that and look at this area here and tell me, is the latter area that I'm pointing to the place where Coler's car was found?

A Yes, it is.

Q Would you look at that, make sure that you have refreshed your recollection as to the terrain and if you'd be kind enough to resume your seat in the witness box.

Now, sir, let me repeat my earlier questions. If you were standing at the edge of the wooded area at the western edge of the right-hand corral, could you see the roadway?

A Yes, you could.

Q Are there any obstructions between that corral and the roadway?

A Just the corral fence and there is some wagons sitting there.

Q How tall is the fence?

A I'd say approximately six feet.

Q And what type of fence is it?

A Appears to be a board or rail.

Q Can you see through it?

A Yes, you can.

Q Now between the two corrals is there area I want you to focus your attention on. If you were standing inside the woods but just at the edge, is there any obstruction to one's vision that would prevent a person from seeing Coler's car?

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A Again there is just remnants of a fence across there.

Q Could you go through it or over it?

A Yes, you could.

Q Now, with the exception of these small courses of bushes or trees, if a person were anywhere between the southern edge of the right-hand corral and this part (indicating) of the wooded area, where this little peninsula sticks out in an easterly direction, could you fail to see Coler's car?

A No, I think I could see it.

Q Did you at any time in the course of the afternoon see any people in that creek or wooded area at the lower part of the diagram, up to 4:00 o'clock?

A No, I did not.

Q Yesterday you told us or identified for us several places that you yourself knew firing was coming from. I think there may have been four specific places that you mentioned?

A Yes.

Q Can you tell us the times, generally speaking, when firing was coming from those areas?

A lt would have been intermittently all afternoon from the time I arrived until 4:00 o'clock.

Q Now, earlier this morning you said that some of the law enforcement personnel received fire from the creek area and the wooded area, or the wooded area -- I am not exactly sure how you phrased it.

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Q You are talking about this area here west of Coler's car?

A I can't state that specifically. All I know is they came in from the northwest edge here (indicating) -- would have been even probably over the edge of the board -- and came into it along the creek area in an attempt to get up in the vicinity of the residence.

Q What you referred to before is in or below the lower left-hand corner of Exhibit 71, is that correct?

A Yes, sir.

Q Were fingerprints taken of the various objects found in tent city?

A Yes, they were.

Q And in the tent city area some fingerprints were found of Mr. Peltier, isn't that correct?

A To the best of my knowledge, yes.

Q Were his fingerprints found on the dynamite that was found there?

A I have no knowledge of that, sir. I have no knowledge of where the prints were found.

Q Now, yesterday you identified two objects called handi-talkies?

A Yes.

Q What was the date and the time of day when you first saw those objects?

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A It was on June 27th, 1975, and I would estimate the time around noon.

Q Now, between 4:00 o'clock on June 26 and the time you first saw those handi-talkies, was this area sealed off?

A No.

Q Could you say whether those handi-talkies were there on the 26th? "Yes" or "no".

A I do not know.

Q You don't know whether you could say?

A No, I do not know if they were there or not.

Q So you couldn't say whether they were there, is that correct?

A No. I was not in that house on the 26th.

Q Could you say whether they were on the 25th?

A No.

Q Or the 24th?

A No.

Q Or even on the morning of the 27th?

A Yes.

Q You could say they were there on the morning of the 27th?

A Yes.

Q How could you say that?

A Because we entered the house before noon on that morning, and they were there at that time.

Q At what time did you enter the house?

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A Well, all I know is it was before noon sometime because as soon as the warrants arrived we started our search.

Q Could you say they were there two hours before you entered the house? "Yes" or "no".

A Before I entered the house, no I could not say that.

Q Now, when you saw them, they were both there, is that correct?

A Yes, it is correct.

Q And were they turned on?

A I don't know if the radios were turned on. The chargers, as I recall, were plugged in and they were charging the handi-talkies.

Q How could you tell they were charging?

A As I recall, there is a little light on there that was on which shows they were active.

Q Did you check the radios to see if they were?

A No, I did not.

Q Now you have identified in the course of your direct testimony a number of shell casings, that is to say, the brass that remains after a bullet or a cartridge is fired. Were those the only indications which were found in that area?

A No, they were not.

Q Can you tell us where other casings were found? Use the pointer if it is convenient for you.

A Well, there were casings found in the vicinity of all the {317} houses depicted on Government Exhibit 71 and in the vicinity of the tent area, and in some of the vehicles located in the tent area.

Q How many casings were found in the vicinity of the house, in addition to those which you identified yesterday?

A It wuld be an estimate of a couple hundred.

Q Were casings found anywhere else in the area?

A There were -- I know there were one or two casings found in the vicinity of Coler's car or in Coler's car.

Q How about in the wooded area near the creek?

A To the best of my recollection I know of none. There could have been. I was not in that area, did not conduct any searches in that area so I have no knowledge of any.

Q Who did?

A Some of the members of the group from Denver were in there, I know. They found some objects in that area. That off the top of my head is the only people I know that were in there. I am sure there could have been others.

Q Do you know if they were looking for casings when there?

A Any remnants of a crime, sir.

Q What was the total number of casings that were found?

A In the entire area?

Q Um-hum.

A There were several hundred. I don't know exactly what the final count was.

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Q Do you know whether it is illegal for a person to carry a gun on the Reservation?

A Not to my knowledge.

Q Do you know whether many people do, in fact?

A I would say a few, only a few. Now, law enforcement people do, but outside of that, you know, you will see a farmer, a rancher now and then, with a rifle in the rack behind him in his pickup. If you want an overall figure, I would say few people do.

Q Now, yesterday you were asked about the number of agents who were working on the Reservation in 1974, and the first six months of 1975, and the second six months of 1975. Do you recall those questions?

A Yes.

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Q Did you interpret that question to mean how many agents were permanently assigned to the Rapid City office?

A Yes.

Q Were there other agents working on the reservation who were temporarily assigned to the reservation?

A Yes. They were.

Q Okay. I want to ask you the same three questions but this time I want you to interpret my question literally, the number of agents working on the reservation, not the number of agents permanently assigned to Rapid City.

How many in 1974 approximately?

A Ten to fifteen.

Q First six months of 1975?

A Again that same number. Around eleven or twelve to be exact I think.

Q And during the second half of 1975?

A Immediately following June 26 there was maybe as many as one hundred fifty agents on the reservation and then that went down to twenty-six or so at the end of the year.

Q Now the twenty-six or so, are those --

A Excuse me. Twenty-seven or so.

Q All right. Twenty-seven. By the second half of 1975 the number of permanently assigned agents to the Rapid City office grew to twenty-six or twenty-seven, is that right?

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A Yes. By the end of the year.

Q And prior to that time how many were permanently assigned there?

A Eleven or twelve to the best of my recollection.

Q Now was it part of your function as an FBI agent who spent a considerable amount of his time on the reservation to keep track of what was happening generally, I'm not talking about specific facts with reference to specific cases, but to have some sense of what was going on in that community and what the general trends were and what was happening in the communities in which you worked?

A Did you say --

MR. SIKMA: Your Honor, I would object to this. There's no showing at this time that Leonard Peltier was a member of the community in the Pine Ridge Indian Reservation.

THE COURT: Read the question back.

(Whereupon, the last question was read.)

MR. SIKMA: Your Honor, it also calls for speculation on the part of this witness.

MR. TAIKEFF: I'm not asking him to speculate, Your Honor I'm asking whether it was part of his function to be aware in that kind of way.

THE COURT: You may answer.

A No.

Q (By Mr. Taikeff) Did you in fact become aware of events {321} in the community other than those which were of direct interest to you because of a pending case.

MR. SIKMA: Your Honor, I would object. That's irrelevant.

THE COURT: I beg your pardon?

MR. SIKMA: That is irrelevant, Your Honor, to the case at hand.

THE COURT: Sustained.

Q (By Mr. Taikerf) Did you know that there was an AIM encampment prior to June 26, 1975 in that area?

A No.

Q Did you know of the existence of tent city?

A No.

Q Did you know of the presence of the people who were living in tent city prior to June 26, 1975?

A No.

Q Did you ever hear the word "goon" on the reservation?

A Yes.

MR. SIKMA: Your Honor, I would object to that as irrelevant.

MR. TAIKEFF: Your Honor, I ask that it be taken subject to connection. I will connect it.

THE COURT: Very well.

A Yes.

Q (By Mr. Taikeff) What does that word mean on the {322} reservation?

A It's, my interpretation of that word is that it's a title or a name given to a supporter of the former tribal chairmen, Dick Wilson.

Q Was the American Indian Movernent an organization that supported Mr. Wilson?

A I --

MR. SIKMA: Your Honor, I would object to this as totally irrelevant.

MR. TAIKEFF: Your Honor, once again I represent to the Court that I will connect this.

THE COURT: You may answer.

A I have no knowledge of that.

Q (By Mr Taikeff) Do you have any knowledge whether the organization AIM was the constant adversary of Mr. Wilson?

A No.

MR. SIKMA: Your Honor, I would object to that on the grounds that no foundation has been laid.

THE COURT: He has answered that he has no knowledge. The objection is sustained.

Q (By Mr. Taikeff) With reference to your earlier testimony about a certain limited number of people carrying guns, how about those who were known as goons, did they generally carry guns?

MR SIKMA: Your Honor, I would object again as this being a matter that's irrelevant.

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THE COURT: Overruled.

A I, I have no knowledge of that.

Q (By Mr. Taikeff) Prior to June 26, 1975 did you receive any word, and I'm only talking about within the week which preceded that date, of an impending armed confrontation between any two factions on the reservation?

A No. I received no word.

Q How many people were staying, approximately how many people were staying in tent city?

MA: Your Honor, I would object to this. Counsel should be specific as to time of this witness's knowledge.

Q (By Mr. Taikeff) Let's say on or about June 25.

A I didn't even know tent city existed at that time.

Q But you subsequently ascertained that there were people staying there, did you not, through investigation?

A Yes. I did.

Q All right. I'm talking about what you learned as a result of your investigation.

MR. SIKMA: Your Honor, I would object to this as calling for hearsay on the part of this witness.

THE COURT: Overruled.

A I think there were approximtely eleven people residing in that area.

Q (By Mr Taikeff) Now you spoke in your earlier testimony about an escape route, --

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A Yes.

Q -- do you recall?

A Yes.

Q And that was a route generally speaking which was a north-south line running from tent city in a southerly direction, correct or incorrect?

A That --

Q I don't mean a straight line. I'm just speaking generalities now.

A That would be a fair statement; yes.

Q From your vantage point were you able to see any part of that escape route?

A Yes. I was

Q And at any time during the day were you able to perceive any people proceeding along that escape route?

A Yes. I was.

Q How many people did you observe.

A I just took a glance up there and I estimate it to be six or seven people that I observed.

Q Would you say that you necessarily saw all of those who may have been moving along there at that time or are you saying that you saw six, you don't know exactly how many there were?

A I feel I probably didn't see all of them; yes.

Q And what time of day was that?

A I estimate it to be about 6:00 pm., quarter to 6:00 as a {325} matter of fact.

Q Did you have occasion to see a young Indian boy about twelve years of age that afternoon?

A Yes. I did.

Q And what time did you see him for the first time?

A I estimated that time to be about 3:00 p.m.

Q And do you remember his name?

A Yes. I do.

Q What is his name?

A Jimmy Zimmerman.

Q Did you ascertain where he came from prior to the time you saw him?

A On the 26th? Did I ascertain on the 26th where he came from; is that the question?

Q Yes, sir.

A Not on the 26th; no.

Q Through subsequent investigation?

A Yes.

Q And where did he come from?

A From the area of the tents.

Q And in connection with what event did he leave the tent area according to your investigation?

A Preparation for escape.

Q And did the so-called escape occur at the time he left the tent city area?

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A It could have started at that time. I didn't see any individuals leaving the area until, as I stated, 5:45.

Q Can you say with any certainty that the people you saw on the so-called escape route were the people from tent city who were leaving the area?

A No. Because the distance --

Q Just answer yes or no.

A No.

Q Where were you looking at 3:00 p.m., what direction when you saw Jimmy Zimmerman?

A I don't know where I was looking. My attention was directed to that area from a transmission from the State radio.

Q And where were you at that particular time? I'll use the pointer and you can tell me or if you want you can use it.

A At that time I was at my vehicle in this general location right here.

Q Almost at Highway 18 in the upper left-hand corner of the Exhibit 71, is that correct?

A Yes. It is.

Q Now from that position what is the furthest point that is on the chart that you could see?

A It woul be the area just to the south and east of the tents.

Q Put your pointer there.

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A (Indicating.)

Q Is that high ground relative to tent city?

A No. Oh. Relative to tent city? No.

Q Same level?

A Approximately; yes.

Q So could you see tent city from there or at least the trees surrounding tent city?

A Yes. The tops of the trees.

Q Now if somebody were in tent city and walked south, viewing the matter from your vantage point, you would see that person presumably at or shortly after the time the person came out of the trees, isn't that correct?

A No. I could not.

Q Now, you say that you could see the area south of the trees.

A I could but I'm referring, sir, to an area a mile and a half over here, a mile over this way.

Q I see. Okay. Can you explain why you can't see the area immediately south of the trees from the vantage point that you were at?

A This area here?

Q Yes. For example, almost at the right-hand edge of Exhibit 71.

A Yes. For two reason.

This area has an elevation comparable to this area {328} here and also the trees here would obscure my vision into this area.

Q I see. Now as to that area on the right-hand side of Exhibit 71 that's lower than tent city, isn't it?

A No. I would say the elevation is about the same because the, the creek runs through there and then it comes back up and, again at about the same elevation.

Q Can you tell us approximately what the comparable elevation is of your vantage point to tent city, to the floor of tent city, not the top of the trees?

A I would say the elevation in the trees here would be twenty to thirty feet lower in elevation than my vantage point.

Q So then you could see at some point beyond the trees that you couldn't see just at the southern edge of the trees?

A That is correct.

Q How far out would, if the first point where you could see the terrain beyond the trees going in a southerly direction? I'm not asking where you first saw a person I'm asking you where you could first see the terrain.

A Right. There is an old road that comes down along this area and back along the west edge here and that is about where I could see from my vantage point.

Q Would you say that's about a quarter to a half mile beyond tent city?

A At least a half mile; yes. Maybe even further.

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Q So from tent city to one-half mile beyond tent city in a southerly direction if one or more persons were walking, you would not be able to see them from your vantage point, is that correct?

A Yes. It is.

Q Now will you oint out for the Court and the jury, where was Jimmy Zimmerman the first time you saw him?

A I have estimated him to be in this vicinity right here.

Q Now am I correct that what caused you to look in that direction and see him was the fact that you received a radio transmission saying the equivalent of, I'm not trying to quote it, "There's sombody up there in a certain direction," and you turned and there he was?

A That is correct.

Q Now if people left the tent city area at the same time as Jimmy Zimmerman, left the tent city area, you wouldn't have seen them, would you?

A That is correct.

Q You may resume the witness stand, sir.

I believe that you told us yesterday that the shooting stopped at 4:00 p.m.

A Yes. That was my estimate; yes.

Q Is it not a fact that the shooting continued until beyond 7:00 p.m.?

A Well, when the individuals went out the south end --

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Q Just yes or no, sir.

MR. SIKMA: Your Honor, if the witness cannot answer the question by a yes or no, I think that it would be fair for him to explain his answer.

MR. TAIKEFF: Your Honor, I don't disagree with that but I think he should say that the question can't be answered with a yes or no.

THE COURT: Are you able to answer the question yes or no?

THE WITNESS: I'd have to have the question again, sir.

THE COURT: The reporter will read back the question. (Whereupon, the last question was read.)

A Yes.

Q (By Mr, Taikeff) Now you said smthin I believe yesterday about the people you saw walking south along the so-called escape route shooting, is that correct?

A Yes.

Q And that occurred about 6:15?

A About 5:45.

Q About 5:45. Who was doing the shooting at about 7:00 p.m.?

A I have no idea.

Q Who was doing the shooting at 7:14 p.m?

A Again I do not know.

Q Who was doing the shooting at 7:16 p.m.?

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A I do not know that.

Q And who was doing the shooting at 7:17 p.m.?

MR. SIKMA: Your Honor, I would object. This witness has stated that he doesn't know the times or where the shooting was going on. It's very clear.

THE COURT: Well, it's without foundation too. There's no evidence that there was any shooting at those particular times.

MR. TAIKEFF: The witness has not denied that there was any shooting.

THE COURT: You may ask the witness if there was any shooting at those particular times again and then if he answers yes you may ask him if he knows who.

MR. TAIKEFF: Yes, Your Honor.

Q (By Mr. Taikeff) Do you deny that there were shootings at the time that I stated?

MR. SIKMA: Your Honor, I would object.

THE COURT: Now that's not a matter of whether he denies. It's a matter of whether he knows.

The objection is sustained.

Q (By Mr. Taikeff) Was there any shooting at the times that I stated?

A I have no knowledge of any shooting at those times.

Q Where were you between 7:00 and 7:30?

A At that time I was probably in the wooded area to the south, southwest of the houses conducting the search.

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Q In that creek area?

A Yes.

Q Did you hear any shooting then?

A Not that I can recall.

Q Did you hear any radio transmissions at that time?

A I did; yes.

Q What, what was the facility through which you heard radio transmissions?

A It was from Agent Williams' car.

Q Was that car playing transmissions on the FBI frequency?

A Yes. It was.

Q Do you know who a person named Ann M. Johnson is?

A Yes. I do.

Q Who is she?

A She's a secretary in our office in Rapid City.

Q And do you know what, whether she was working on June 26, 1975?

A Yes. She was.

Q And do you know whether she was working from approximately noon beyond 7:00 p.m. that day?

A I assume she was. I don't know what time she quit that evening.

Q Do you know what duties she was performing that afternoon?

A No. I do not.

Q I show you Defendant's Exhibit 75 for identification and {333} ask you to look at it till you ascertain what it is and what it reflects.

It's not in evidence and its contents cannot be read out loud.

A I can see what it is.

Q Have you ever seen it before?

A Yes. I have.

Q When did you see it for the first time?

A I believe as near as I can recall it was about a year ago.

Q And is it a 302?

A Yes. It is.

Q Prepared in the course of the official function of the FBI?

A Yes.

Q By an agent of the FBI?

A Yes.

Q In connection with this case?

A Yes.

Q Now, sir, would you be kind enough to turn to page 25.

Before you do that, sir, let me ask you a question.

Are you able to tell us now from your memory either verbatim or by paraphrasing anything that came over the radio, the FBI radio between 7:00 and 7:30 p.m.; yes or no?

A No.

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Q Would you look at page 25 and 26 and see if that in any way refreshes your recollection.

A No.

Q Have you read both of those pages?

A As I remember, I was not in any position to monitor the radio transmissions between these times. As I recall, now I think I was in the wooded area participating in the search.

Q Didn't you tell us a few minutes ago that you were able to hear FBI communications over the radio in Williams' car? Yes or no.

A Yes.

Q And when I asked you --

MR. SIKMA: Your Honor, I would object to this line of questioning. It's totally misleading. The witness has indicated that he heard the sound of the radio. He hasn't indicated that he monitored the radio and furthermore he's indicated that he wasn't in a position to listen to this radio communication. This form of testimony indicates that he in fact turned off the radio and left the area.

MR. TAIKEFF: Would Mr. Sikma prefer to go up and whisper in the witness' ear as to what his testimony should be on cross-examination.

MR. SIKMA: Your Honor.

MR. TAIKEFF: There was no such testimony in this case thus far.

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MR. SIKMA: Your Honor, the witness testified that on direct examination that that is what occurred and he also indicated just moments ago that he was not monitoring radio conversation.

MR. TAIKEFF: Your Honor, the record will clearly reflect that I asked him whether or not a few moments ago, a few minutes ago he said that he was in the wooded area and he was able to hear the radio from Williams' car and he said yes to that question. Now Mr. Sikma wants to throw him some signals. Perhaps we could have a recess so they could have a conference.

MR. SIKMA: I object to that clearly.

THE COURT: That is argumentative and it will be stricken from the record.

Specifically what is your objection now?

MR. SIKMA: Your Honor, the line of questioning, number one, is misleading and, number two, Counsel has given a misstatement of the record at this point.

THE COURT: Well, it may be that this is something that you could bring out on redirect. I'm going to permit the questioning to proceed at this time.

Q (By Mr. Taikeff) Do you wish to change your answer?

A No.

Q In connection with my question as to whether or not you had earlier in your testimony within the last seven or eight {336} minutes told us that you were in the wooded area conducting a search and you were able to hear FBI transmissions on Williams' car, the question is do you wish to change your testimony in that regard? Yes or no.

A No. But I could clarify it.

Q That's a chance you'll have on redirect examination.

Now when I ask you to look at Defense Exhibit 75 for identification, pages 25 and 26, did you read those pages before you responded and said, "I didn't hear any transmissions," or the equivalent? Yes or no. Did you read the text of the pages?

A No, I have not.

Q Do you know how to sight read an entire page at a glance?

MR. SIKMA: Your Honor, I would object. This is argumentative. He's arguing with the witness. He indicated that he didn't read the entire transcript.

THE COURT: Sustained.

Q (By Mr. Taikeff) How would you be able to respond so quickly, Mr. Adams, the minute you turned to page 25? What prompted you to say almost instantly, "I didn't hear those radio transmissions"?

A Because I didn't hear any specific radio transmissions at this particular time.

Q Now I asked you when I handed you that document to look at pae 25 and 26 to see if it refreshed your recollection. Would {337} you be kind enough to read those two pages and tell us whether it refreshed your recollection in any way.

A Yes, I will.

This does not refresh.

MR. SIKMA: Your Honor, I would like to ask a question on voir dire to determine whether or not this witness can answer that question.

MR. TAIKEFF: I think my question is clear cut, Your Honor.

MR. SIKMA: Very well.

THE COURT: Are you withdrawing your request?

MR. SIKMA: Yes. I'll withdraw it.

A No. This does not refresh my memory.

Q (By Mr. Taikeff) Getting back to Ann Johnson, what was she doing that afternoon in the Rapid City office?

MR. SIKMA: Your Honor, might I ask a question on voir dire for the purpose of making a possible --

THE COURT: I think all you need to do is make an objection. There is no foundation he knew what she was doing.

MR. SIKMA: Objection. No foundation, Your Honor.

THE COURT: Objection is sustained.

Q (By Mr. Taikeff) Mow that official FBI document, does it reflect what she was doing? Yes or no.

MR. SIKMA: Your Honor, I would object again. There {338} is no foundation.

MR. TAIKEFF: Yes, there is. The document is in front of the witness.

MR. SIKMA: In addition it's hearsay.

THE COURT: It's not in evidence.

MR. TAIKEFF: I understand. I'm laying the foundation to offer it in evidence.

MR. SIKMA: Your Honor.

MR. TAIKEFF: HE has the document in front of him and I'm asking him without saying what its content is whether that official document prepared in the official course of the FBI business reflects what she was doing that afternoon. That's my foundation.

MR. SIKMA: Your Honor, this witness cannot answer. This document cannot be offered to this witness because the witness didn't prepare the document. While it may be a document that was prepared in the course of business, it is not the type of document that is an exception to the hearsay rule.

MR. TAIKEFF: I'm going to offer it as an official business record, Your Honor.

MR. SIKMA: We would object, Y