VOLUME VI

Pages 960-1208

Pages 960-980 omitted.

{981}

WEDNESDAY SESSION

March 23, 1977

9:00 o'clock, A.M.

WHEREUPON,

the following proceedings were had and entered of record on Wednesday morning, March 23, 1977 at 9:00 o'clock P.M. without the presence and hearing of the jury:

MR. TAIKEFF: May I be heard briefly, Your Honor?

THE COURT: You may.

MR. TAIKEFF: I believe that Your Honor has not yet ruled on Defense Exhibit 75. I was wondering whether the Court had reached a determination.

THE COURT: I have.

I was looking for the citation. I have in my notes here someplace the citation of the two cases which I am basing my ruling on.

The ruling of the Court is that Defense Exhibit 75, and there were two other exhibits.

THE CLERK: 81 an 82.

THE COURT: As the clerk reminds me, 81 and 82 nave not been offered.

It will not be received as an exception to the Hearsay Rule.

The Court is influenced in that decision by Eighth Circuit case of U.S. versus Thompson, 487 Fd. 2d 146 1973 and {982} and U.S. versus Claudman, 534 Fd. 2d 123 1976.

If Counsel is to use Exhibit 75, its use appears to be limited to cross-examination of the special agent who prepared the exhibit.

MR. TAIKEFF: May we call the appropriate witnesses out of turn then so we can make proper use of the document in cross-examining?

THE COURT: I don't quite understanding how that is going to enable you to make proper use of the document.

MR. TAIKEFF: Well, the government's position I would gather is that as to any person other than the person who prepared the document, any reference to the document in questioning such a person would constitute an improper question because it would incorporate hearsay information not already in evidence. Now unless we are to follow the procedure of not excusing all of the agents who testified, waiting until the defense begins its case, have the defense introduce the document by calling the three witnesses through whom the document can be introduced --

THE COURT: I think this is my Point. I'm not certain the document can be introduced but through those three witnesses.

MR. TAIKEFF: Your Honor, I believe that it would be elementary to get that document into evidence through those three witnesses because those witnesses --

THE COURT: When you say the three witnesses, you are {983} talking about Johnson and Price?

MR. TAIKEFF: Ald O'Clock.

THE COURT: And O'Clock.

MR. TAIKEFF: Between the three of them the informa tion contained in the memorandum could be introduced into evidence either in bulk by laying the foundation and introducing the document once it's authenticated or an entry at a time, having the witness testify either directly from memory or as a past recollection recorded. It is my opinion one of the most elementary exercises in introducing evidence.

THE COURT: The problem, and the problem as I see it is that the document was prepared by an investigator through an interview of two individuals by the name of Price and Johnson.

MR. TAIKEFF: I believe that's not quite correct, Your Honor. In fact, I believe it is incorrect in two respects. The document itself reflects the efforts of one person, Johnson. The 302 concerning Mrs. Price is only corroboration for the events which took place or the circumstances under which the events took place

Reading Mrs. Price's 302 and Mrs. Johnson's 302 side by side, it's clear to the reader what was going on with all these people. The three of them, O'Clock, Price and Johnson were all in the same room with a loudspeaker that was broadcasting all of the FBI radio transmissions. One of them, {984} Miss or Mrs. Johnson was transcribing as best she could from what she heard as it was occurring and noting the time. Your Honor will undoubtedly recognize the fact that the times are very precise, 12:18, 1:24, 4:34, 4:22. Obviously those were not efforts on behalf of the person making those notes to estimate the time, but I'm assuming, and I think it's a fair assumption at this time, that the testimony will show that there was a clock and that this information was written down by glancing at the clock, noting the time and making as accurate a transcription as was possible under the circumstances.

We do not purport that every one of these things is a a quotation, that it is absolutely accurate or that it is verbatim, but we have an instance where somebody was listening to the radio transmission and contemnoraneously making notes as to that person's subjective impression of what was coming over the radio.

All we want to introduce into evidence without reference to how much weight should be given to it is that person's contemporaneous impressions of what was coming over the FBI radio. Now surely those three witnesses between them would provide the basis for getting it in either by authenticating the document as such or it being a past recollection recorded. That the person no longer remembers the specific transcription, it is on the verge of being inconceivable that there would be such a total failure of memory on the part of those three people, {984} in spite of the fact that I have known law enforcement people to have selective failures of memory.

MR. SIKMA: Your Honor.

MR. TAIKEFF: May I finish my arguments without being interrupted, please.

MR. SIKMA: Your Honor, I would object to this present knowledge of Counsel concerning law enforcements.

THE COURT: The Court disregarded that remark as being not appropriate.

MR. TAIKEFF: Perhaps Your Honor's experience in North Dakota is different than my experience and we have to await --

THE COURT: It is still not appropriate.

MR. TAIKEFF: What testimony occurs in any event, even if there is a sudden rash of failure of memory, we have a past recollection recorded and that would suffice to get the document in.

{986}

THE COURT: This brings up the point that I raised when this matter was discussed before, and I'm reading from the transcript.

"Is there any other records of these transmissions available other than which may have been recorded in this exhibit, this 302, Exhibit 75?" Mr. Sikma's response was, "Right. At that early part in the incident I'm not sure that there are. There are perhaps other transmissions of other agents, and I could check that out for the Court."

The problem that I'm having with that particular 302 is if this 302 is simply a report of an investigators interview with a person who heard the transmissions. It is not admissible as an exception to the hearsay rule. Therefore, it seems to me that the person who would have to testify as to the transmissions that that person heard would be the person, the individual. In this case apparently his name is Johnson.

MR. TAIKEFF: Well, first of all I would like to advise Your Honor that only FBI agents write 302s. So even if you have an employee who has made extensive notes it is the technique, the procedure of the FBI, to have what appears to be an interview, but in fact is not an interview.

It is, Your Honor must remember these three people were together when this event was taking place. So it isn't an interview in the conventional sense. That agent goes to a prospective witness and says, "Tell me what you know," and then {987} records all that fact on a piece of paper and puts that into a 302. This is a case where the interviewee and the interviewer jointly shared the experience.

It was then formalized in a 302 which is a document that is written by, or completed by an agent. So one witness to the event and the co-witness to the event appear on the face of the document the interviewer and interviewee, but that really isn't the case. Undoubtedly this woman made notes of what she was doing. It is conceivable, given the fact that that document is more than twenty pages long, that Agent O'Clock sat down with Ms. Johnson and said, "Now, tell me what you remernber." And she, in an effort to purge her memory, made statements which he then recorded and put in the 302. That's clearly not what the document is. And the briefest amount of testimony from the appropriate witnesses would establish that what I'm suggesting is the fact is indeed the fact. But it was recorded in that formal fashion.

In fact, if Your Honor will look at some other 302s, Your Honor will see that agents tend, when they write about their own activity to write in the third person about themselves as if they were interviewing themselves. And they call themselves by name instead of speaking in the first person. But that should not mislead the Court into thinking there was an intervie in the conventional sense. But notwithstanding all of that, the point, Your Honor, is that if we are to avoid a procedure that {988} is going to lengthen the trial unnecessarily and keep all the FBI witnesses waiting until the defense puts on those three witnesses, and then recalls all the FBI agents to complete their cross-examination, we have a much simpler procedure to follow. And that is to allow at this time those witnesses to testify which would authenticate the document, and then we have the document in evidence for whatever weight the jury should give it.

We understand it does not purport to be a transcription carefully made from a tape recorder. The accuracy of which can be checked and rechecked as many times as anybody chooses in or out of the courtroom. We have here somebody who apparently made notes, looking at a clock and listening to a loud speaker, and sometimes those notes are not quotations but they are subjective descriptions of what that person heard. Some weight must be given to that. The relevance of it should be crystal clear.

We ask Your Honor, so that we can cross-examine the agents who are yet to get on the stand, without interference from and unnecessary objection by the Governmsnt, to let us call those people to the stand now and satisfy Your Honor that the document has a legitimate role in evidence in this case. That was the alternative application that was made to Your Honor.

THE COURT: I recall that. I still have not had a {989} response to the question that I raised, that I just read from the transcript.

MR. SIKMA: Your Honor, there is a transcript from state agency radio, there is not another transcript from the federal agency radio. I would like to state that Mr. Taikeff in error in his statement as to what took place, particularly during that early portion from 12:00 o'clock to a little after 1:30. During that period Or time it is not true, I believe the evidence will show, that these three people were all together. Ann Johnson, in the early part of this thing, started to take some notes. At a later time, the times, the times were filled in in an interview where Special Agent O'Clock was interviewing Ann Johnson, and it is not as in transcript form as Mr. Taikeff would indicate.

MR. TAIKEFF: I didn't say it was in transcript form. I said specifically it wasn't in transcript form.

MR. SIKMA: Well, it appears somewhat to be in a transcript form from the way the 302 is set out.

However, in fact that is not the case. It was done that way for record-keeping purposes. This is not in fact Ann Johnson's. Something that is just copied down from what Ann Johnson stated. This is in fact an interview by Special Agent O'Clock with Ann Johnson, and that's where part of the problem arises because --

THE COURT: Well, that was the basis of my ruling.

{990}

MR. SIKMA: Yes. And that's where the problem is with the information because I believe that Special Agent O'Clock confused some of the times in his questioning of Ann Johnson, and I think that's where the whole problem ariss in this case.

THE COURT: Well, you stated that there may be a state agency transcript available.

MR. SIKMA: I think that there is one in the defendant's discovery information, or in information that they have had access to.

But this is not of FBI transcriptions or, you know, transmissions. This is a different network. But in some respects, since the state was transmitting at the same time, the federal agencies were transmitting. There would be some, there might be some corroboration as to the events that occurred.

THE COURT: Well, then that doesn't solve the problem.

MR. SIKMA: It does not.

But we would also object to the defense calling witnesses out of order because the defense will have an opportunity to put on its case. The Government should have the opportunity to put on its case in an orderly manner. We still have the availability of possibly calling some of these witnesses if we feel that it's necessary, Your Honor.

MR. TAIKEFF: I'd like to clarify two points that I {991} think Mr. Sikma either made or attempted to make.

There is a state frequency that was in use in South Dakota. That is a different radio frequency than the FBI frequency.

THE COURT: I understand that.

MR. TAIKEFF: Now, that may have been tape recorded with a special magnetic device so that as you listen to the tape recording you are able to watch on a neon print-out device the time. So you can sit here in this courtroom, listen to the radio transmissions as recorded, and on a clock-type device, a digital clock device, read the time as it's happening.

That has nothing to do with what we're talking about. We're talking about the transmissions on the FBI radio frequency, and in particular at this moment we're talking about a supposed transmission at 12:18 p.m. by Agent Adams. That is recorded in where else, except possibly in the memory of Ms. Johnson and in her notes and in the 302 which we have reason to believe evolved from her notes in a report written by Agent O'Clock which is Defendant's Exhibit 75.

The second point is that I thought I heard Mr. Sikma say or deny that something did not exist in the form in which I suggested it existed.He said it is not that way, and then immediately proceeded to say that it was done that way for record-keeping purposes.

{992}

Now, I don't see how something at the same time cannot be done a certain way, but be done that way for record keeping purposes. The point, Your Honor, is that the Government is trying to disavow its own document prepared by an employee of the FBI and in the guise of saying that it doesn't want its case interrupted is preventing us from putting in now, so that we can make legitimate use of the document in cross-examining the remaining FBI agents. There's no reason why their case should not be interrupted for that purpose.

The jury has heard testimony on this subject. I think that if they're alert and paying attention they may very well be waiting for the other shoe to fall. And since we want to use this in connection with cross-examining other agents, not just to impeach Agent Adams, which indeed is one of our intentions, but so that we can use the document to cross-examine other agents.

There's no reason why Your Honor should not allow that to occur now so the rest of the trial can proceed in some sort of orderly, logical fashion. Otherwise we will not consent to any of the remaining FBI agents being excused. And we ask that they be held here for further examination durine the course of the defendant's case.

MR. LOWE: May I make one point, Your Honor?

THE COURT: You may.

{993}

MR. LOWE: Do you have in front of you, or have you had an opportunity to see this 302 we're talking about? All right. The point I would make is that that shows that the interview was conducted by Agent O'Clock on June 26th, which was of course the day that all of this took place. As such, this constitutes a statement by Ann Johnson to Agent O'Clock which was made immediately after these events took place.

Rule 803, which is the hearsay exception rule of the Federal rules of evidence, states, the first line of it says, "The following are not excluded by the hearsay rule even though the declarant is available as a witness." And the very first one, paragraph 1, present sense impression. A statement describing or explaining an event or condition made while the declarant was proceeding the event, or condition, or immedately thereafter by the plain language of this first paragraph, this statement made by Ann Johnson immediately after the event explaining or describing the event as she perceived it, is clearly admissible even though Ann Johnson is not available by that statement.

I recognize that there may not be any cases on that rule yet because it's a relatively new rule, but the rule is very simple and very clear in its language even though she is available.

MR. SIKMA: Your Honor, I believe that present {994} impression of which Mr. Lowe is speaking is a present impression of an observation, not a statement. And I think that's the difference.

If I, for example, make a, take down some, something that I've heard, said, or if I hear something a few hours later, state to someone else that I heard something being said, that is not what is considered a present impression. The present impression is, for example, if Gary Adams says "I see three people running across the field," now, he transmits that to another party and that other party is on the witness stand. I would say that what Gary Adams says is a present impression which the listener may testify to without calling Gary Adams to the witness stand.

Or to use another example, Special Agents Williams and Coler are not available as witness, but Special Agent Williams transmitted to Special Agent Coler, or excuse me, to Special Agent Adams, "It looks like they're going to shoot at us." That is a present impression, that is the type of exception to the hearsay rule of which we are speaking.

That is substantially different than a day full of radio transmissions which are heard by an individual and later on stated to another individual at the end of the day. This was a very long day that all these things took place, and I think that Ann Johnson's statements to Special Agent O'Clock are not by any means impressions. A present impression {995} is something that is flashed out, and it is a singular-type impression, something that is occurring at the time the thing is being recorded, and not something that takes place perhaps hours later.

MR. TAIKEFF: Your Honor, Mr. Sikma misrepresents the fact to the Court. When he suggests that Ann Johnson merely sat there through a long day and listened for several hours, perhaps six to seven hours, and then from mermory transmitted this information to Agent 0'Clock, that is not the case.

It would be impossible for her to remember times, such as 12:18 and 1:24, et cetera. She made notes of what was happening as it was happening. Therefore, it was an instantaneous recordation of her sense impressions. Those notes were transferrred into that 302 with very little external influence over what was finally put into that 302. And if Your Honor would give us the chance to put Agent 0'Clock and Ms. Johnson on the stand Your Honor would be persuaded that is the fact.

Now, that supports the claim of reliability and accuracy to the extent that the information was reported.

{996}

MR. TAIKEFF: I don't understand what basis the government has for objecting except that the information will be used to impeach one of their own witnesses. Obviously thev don't want that to happen and I would be surprised if they wanted such a thing to happen. But there is no legal basis for them keeping this out. It's done by a government employee who is employed by the FBI whose sense impressions were being recorded instantaneously as they were occurring in the presence of a person who ultimately wrote the report. But it makes no difference if that person, namely Agent O'Clock, may not have been there during the first hour because it's her sense impression which she wrote down in her notes and then subsequently have this information in writing or verbally or both to Agent O'Clock so he could create the 302 which is Defense Exhibit 75.

THE COURT: The problem we have lere is that Counsel are diametrically in disagreement as to the authenticity of the, or the accuracy of the report covered in this 302 and I suppose the only way that that could be resolved would be to have the persons who were involved testify as to what in fact did take place, what the procedure was and that would have to be done out of the presence of the jury in order that I could make a determination as to whether these reports or communications, recorded communications do in fact possess the requisite of reliability so that the exhibit could be used for cross-examination.

{997}

MR. HULTMAN: Your Honor, might I be of help to the Court at this time.

THE COURT: The Court appreciates any help from any source.

MR. HULTMAN: As has been, and I'm using now Mr. Lowe as a counterpart, we have had more than one conference from a protocol standpoint, as I understand the problem, Your Honor, Counsel has used and intends to continue to use the document. The only real issue at this time is whether it's admissible at this particular time, am I correct on that, Counsel?

MR. TAIKEFF: I have not used it without undue interference from the government by making objections that I was using something that was not in evidence. That's why I moved it into evidence.

MR. HULTMMAN: All right.

I think it proper to solve all the problems, Your Honor, if Counsel would agree with this, to accomplish all of the ends that Counsel has indicated as well as the last one and the government would do this, which would normallY be the proceaure anyway, is that to call the specific witness Ann Johnson and at that time is the proper time to do the things hat Counsel is wanting to do and should do. I will indicate to the Court at this time that with do diligence and do haste, but not in the next five minutes, because we have other witnessess {998} prepared and Counsel and I have agreed as to what witness is going to start, at least this morning;

that by tomorrow, because I've got to get the people here first, that I will have the two individuals who were the individuals who did the hearing available and those are the proper witnesses as to what they did see, did hear or did do. And so in that way, and I don't think that in any way will hamper Counsel by way of any agents because we're starting out with an agent this morning in the use of, and the use of any document that they may have to accomplish whatever purpose they wish to accomplish. I think this would be a way in which we could resolve all of the problems which are concerning Counsel for the defendant or concerning the Court and at this moment are concerning the government also. And if that would meet with the consent of Counsel, I will so proceed.

MR. TAIKEFF: If Mr. Hultman is suggesting that we have the hearing that Your Honor was alluding --

MR. HULTMAN: I'm not referring to any hearing. I'm going to have them here as part of the trial. No sense for an extra step of any kind.

MR. TAIKEFF: Put them on in front of the jury?

MR. HULTMAN: That's correct. And proceed with their testimony.

MR. TAIKEFF: I propose we have it be before the jury, Your Honor, so Mr. Hultman and I are in exact agreement.

{999}

MR. HULTMAN: That would solve everybody's problem.

MR. TAIKEFF: I think the fact of waiting until tomorrow is not critical in view of the lineup of witnesses we have for today. I would be amenable to accepting Mr. Hultman's suggestion. I would hope if there are any written notes of any kind other than the 302s in question that those notes accompany the witnesses when they come to the courtroom.

THE COURT: I assume that you would instruct the witnesses to bring along whatever.

MR. HULTMAN: Your Honor, I will now do that. But I want to make it very clear on the record that we now from a legal standpoint, you're getting into still another issue and I would want that issue to be resolved by the Court prior to any time that any interplay takes place concerning notes and the production of them and so forth before this jury because we all know sitting here that there have been motions and there are questions concerning the use of notes and so forth. All I am saying there is, I think there is a proper procedure to be gone through at that time before we get an issue of that kind before the jury. I will certainly indicate to the witnesses to bring, as the Court has instructed me, anything that they may have.

THE C0URT: Well, my primary concern is with the reliability of what has been reported on this 302.

MR. HULTMAN: I understand, Your Honor, and mine also. yes.

{1000}

THE COURT: And if that can be resolved by this procedure, then we may have solved the problem.

Is there anything more?

MR. TAIKEFF: Your Honor, I have been given a letter today by the United States Attorney's Office adding and deleting, certain names from the witness list and pursuant to our agreement and understanding with the government, it is our obligation to advise the government if anyone on the list is a potential defense witness so that they do not release that person from the jurisdiction, subpoena. Pursuant to that I wish to advise the government that Marvin Stultz who is on the list as being removed as a potential witness will be a defense witness and that Agent David Price may be, and in order to make sure that he doesn't slip through our fingers we'd like him to be held available as well. Although it's not clear at this time whether we will call Agent Price, there is a substantial possibility.

MR. HULTMAN: Your Honor, might I just respond with reference to the names that are on the witness list. That doesn't mean that we have those people here. It means we have them on the list and intend to call them and if Counsel does wish them I would like some notice so that I will be able to get them here. I mean, a number of the people that are on that list have never been here so I want that made very {1001} clear. You'll have to have enough notice in order to get them. I can't keep somebody here that hasn't been here.

MR. TAIKEFF: I understand and I will give you sufficient notice.

THE COURT: Very well.

MR. ELLISON: Your Honor, there are two more matters. The first matter, it has come to my attention that Your Honor has set out very detailed orders and rules which spectators should follow when they're in the courtroom and these rules are posted on two sheets of paper outside the courtroom.

It has come to my attention that several persons have been told that they cannot take notes or make any sketches unless they have proper press credentials and sit in the first row. Since the rules of the Court are set out, I assume are to maintain a certain decorum in the courtroom, and these rules do not include any mention of taking notes or of any sketches by persons other than press people and my failure to understand how such actions by persons would interfere in any way with the decorum of the courtrooom. I would request a clarification from the Court because several persons have been instructed to stop taking notes and I have not noticed any interference at all with the decorum of the courtroom by their doing so.

THE COURT: All right. Number one, that is a long {1002} tanding rule in this jurisdiction that has been in effect for longer than I have been associated with the judiciary.

Number two, and I wasn't intending to bring this up at this time, it was reported to me this morning that the jurors have complained to the marshals about distractions in the courtroom. The particular reference that the jurors had was not to taking notes, it was to the movement of people in and out during the testimony. I instructed the marshals to observe and to report to me at the end of the day and I would then at that time make a determination what if any limits should be imposed.

So the rule to which you have just referred to, Mr. Ellison, will not change. As I say, it is a long standing rule of this court adopted by judges that preceded me and that we have felt it to be in the interest of the judiciary to continue.

MR. ELLISON: Could I ask Your Honor to include that in the written rules outside the courtroom so persons entering the courtroom would have appropriate notice because otherwise the only notice persons have is what is contained in the two sheets of paper outside the courtroom. I myself have never been in a courtroom where such a rule has been in place and therefore I was surprised to find the marshals were enforcing, this rule.

THE COURT: Well, it is announced now. I think the {1003} order that you have reference to is the standing order of this Court, it's probably been posted and perhaps it does not specifically relate to that, but as I say, it has been in effect for such a long standing period of time in this jurisdiction that I suppose it was jusst not thought necessary to spell it out.

MR. ELLISON: I would state to the Court that probably most of the people who are spectators here are not of this jurisdiction.

THE COURT: I appreciate that and I can understand the problem. But I'm sure all of them would have heard this exchange this morning now and do understand it.

MR. ELLISON: The other point, Your Honor, is that it has come to my attention that agents of the Federal Burea of Investigation visited the home of Mr. Peltier's parents yesterday morning attempting to ascertain the location of Leonard Peltier's mother. I'd like to inform the FBI that Mrs. Peltier is in Fargo and has been attending the trial and at their request we would appreciate if they would not visit the home at any further time for such information because she has been in the courtroom, and I'm sure the FBI is unaware.

I'd also like to state to the Court the manner in which agents requested such information was a rather abusive manner. We'd ask the Court to instruct the FBI to properly conduct {1004} its investigation.

MR. HULTMAN: Your Honor, might I respond. First of all, I don't think this is a relevant matter in any way way to any issue before this Court at this time. I further would request that on any matters of this kind in the future that they be taken up at the proper time and place and, thirdly, I have no knowledge as to what Counsel is referring. But I will make it very clear that the United States is going to continue to fulfill any responsibilities and any officer of the United States in whatever capacity that they have and I'm not in any way going to be inhibited by any statement of Counsel in this courtroom.

THE COURT: Well, I have no information, of course, as to what activities have been or may have or may not have been going on and until I get some information in a more formal way, I'm not going to act on it.

Now if there are problems, I would expect that Counsel would try to resolve them between themselves before taking them up with the Court.

MR. ELLISON: Your Honor, I don't believe this had anything to do with the Counsel for the government. I believe it just had to do with the Federal Bureau of Investigation. That's why I did bring it to the --

THE COURT: The Federal Bureau of Investigation, I assume, is being used by the United States in some manner to {1005} conduct this investigation and assist with the trial. That's why I say that it should be resolved with Counsel before it's brought to the attention of the Court or an attempt should be made to resolve it with Counsel before bringing it up to the Court.

MR. ELLISON: Very well, Your Honor.

MR. HULTMAN: Also, Your Honor, I'd like to have the opportunity this be brought to the attention of the government where the problem is without being in open court with all the press. Then it becomes a matter --

THE C0URT: Well, of course, if it's brought to Counsel before it's brought to the Court it's not going to be in open court.

MR. HULTMAN: I understand, Your Honor.

THE COURT: Very well.

You may bring in the jury.

(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)

MR. HULTMAN: May it please the Court, the plaintiff calls Wilfred Draper.

{1006}

WILFORD DRAPER,

being first duly sworn, testified as follows:

DIRECT EXAMINATION

By MR. HULTMAN:

Q Would you state to the jury your name, please?

A My name is Wilford Draper.

Q And where do you live, Mr. Draper?

A Minifarms, Arizona.

Q And how long have you lived in Arizona?

A For the last eight years.

Q And with whom do you live in Arizona?

A My family.

Q And would you tell the jury the make-up of your family?

A I've got three sisters, two brothers, and of course, mom and dad.

THE COURT: Are you able to hear him?

Mr. Draper, the people at that table have to hear you, and I would ask that you try and speak up loud enough so that your voice may be heard.

Q (By Mr. Hultman) I want to take you to the year, 1975, and the early part of June 1975, Mr. Draper, and did you have an occasion to go to a convention?

A Yes, I did.

Q And would you tell the jury in your own words where it was that you went?

{1007}

A Went to Farmington, New Mexico, there, and participated in the American Indian Movement convention.

Q And did you meet old friends there as well as make new friends?

A Yes, I did. I met a Leonard Peltier, Dino Butler, and Bob Robideau, Norman Brown and Mike Anderson, Norman Charles.

Q Did you meet -- those were all men, is that right?

A Yes, sir.

Q And you have referred to Mr. Peltier. Do you see him in the courtroom here today?

A Yes.

Q And would you tell the jury where he is here in the courtroom?

A He is over there sitting, the yellow ribbon shirt.

MR. LOWE: We will stipulate identification, your Honor, no question about that.

THE COURT: Very well.

Q (By Mr. Hultman) Now, did you have occasion to meet some young women as well as these men that you have mentioned?

A Yes, I did. I met Jean Bordeau and Neelock and Lynn.

Q All right. How long about were you at the convention, do you recall?

A Three or four days.

Q And where did you go from the convention in Farmington, New Mexico?

{1008}

A We went to South Dakota.

Q And in what area in South Dakota?

A To the Pine Ridge Indian Reservation.

Q And would you tell the jury who it was that -- if anybody -- that you left Farmington with and how you traveled?

A I left with the people, the people I met there at Farmington, and we traveled in two cars.

Q And was that the group of people that you have just mentioned up to this time?

A Yes.

Q All right, and would you tell us what kind of cars were these and who did they belong to, if you know?

A There was a light green car, I think that belonged to Leonard Peltier, and there was a dark green pickup with a white camper. I don 't know the owner of that.

Q All right. Now, who did you ride with in going from Farmington to the area of the Pine Ridge area in South Dakota?

A I rode with Dino Butler and Robideau, and Norman Charles in the camper.

Q All right, and was Leonard with you in one -- was Leonard there in one of the two automobiles?

A Yes.

Q And were the rest of the names you have not mentioned in the other automobile traveling?

A Um-hum.

{1009}

Q All right. Once you got to the Pine Ridge Indian Reservation area, where specifically did you go?

A Went to the town called Oglala, and from there we went to a man by the name of Harry Jumping Bull's place out in the country.

Q And did you stay there at Harry Jumping Bull's then for some time after that?

A Yeah. We stayed there a couple of weeks.

Q All right. Now, I want you to turn around and to the back of you, to the rear of you is an object which is a map of an area; and it is Government's Exhibit 71, and ask you whether you recognize that particular exhibit?

A Yes, I do.

Q And you have seen that exhibit or one like it a number of times before, have you not?

A Yes, I did.

Q All right, and you are familiar with that particular area for the fact that you stayed in that area for a couple of weeks, is that correct?

A Yes, I did.

Q All right. Now, I want, Mr. Draper -- do you understand that the questions that I am asking you, I want you to respond on the things that you saw and observed at that time and not anything you may have learned since that time, by talking to other people or friends, do you understand my questions are {1010} going to be about the event that happened, and I want you to tell us about the things that you saw and observed at those times, and separate them from what maybe you have talked to somebody about since that time, do you understand?

A Yes.

Q To the best of your ability, of course, all right.

Now, where did you live in the Jumping Bull area, would you tell the, jury and explain to the jury where you lived, and where any other people lived in the Jumping Bull area once you got there, and maybe you could take the pointer and point out where it is that you lived and where any others lived?

A (Examining) I lived right behind Harry Jumping Bull's place.

Q All right. Would you point that out to the jury?

A (Indicating).

Q All right, and when you say "behind it", are you referring to which direction with relationship to Highway 18?

A South, southeast.

Q All right. Would it be toward Highway 18 as different from away from Highway 18, from the Jumping Bull's?

A Yes.

Q And had you lived at any time -- or did you stay at any time down in an area which is known as the tent area?

A Yes. I used to stay down there.

Q Is that when you first arrived?

{1011}

Q And when you first arrived, then would you tell the jury who it is that stayed in the tent area?

A Stayed -- let me see. Dino Butler and Leonard Peltier, and Bob Robideau, Norman Browm, Norman Charles, Mike Anderson, Joe Stuntz, and Lynn Neelock and Jeannie.

Q All right, and about how long did you stay there with those people in the tent area?

A A couple of days.

Q All right. Then where did you go?

A I moved up to Harry Jumping Bull's place.

Q All right, and did you live in Harry Jumping Bull's, or did you live in the area of Harry Jumping Bull's home?

A In the area.

Q And what did you live in?

A White tent.

Q And why was the reason that you moved from the tent area?

A Didn't like the atmosphere down at Tent City.

Q What was the atmosphere that you didn't like down in Tent City?

MR. LOWE: Objection, Your Honor, this is not relevant to the charges, not talking about June 26th, absolutely irrelevant.

THE COURT: Sustained.

MR. HULTMAN: Your Honor, may we approach the bench?

THE COURT: You may.

{1012}

(Whereupon, the following proceedings were had at the bench:)

MR. HULTMAN: Your Honor, the response to the question, counsel knows as well as I do, will be the reason --

MR. LOWE: (Interrupting) Can you keep your voice down? I know you want the jury to know this.

THE COURT: The last remark was unnecessary.

MR. HULTMAN: (Continuing) -- is the fact -- your Honor, I can't talk any lower than this and be heard, I am doing my best -- is the fact that the reason he left was because of all the guns, and in particarr the relationship of the Defendant himself to the guns; and I think that's very relevant to all the events that are going to follow. That's my reason for the question, your Honor.

MR. LOWE: I don't think that changes the relevancy one bit, why he moved from one place to the other. He stayed in the area. It is not relevant, certainly not relevant to June 26th.

THE COURT: I will reverse my ruling on the basis of that information and permit the answer.

MR. LOWE: We will object, your Honor.

THE COURT: Very well. The record shows your objection.

(Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)

{1013}

Q (By Mr. Hultman) Now, Mr. Draper, I will again ask the question that I just asked, why was it that you moved from the tent area?

A Like I told you, I didn't like the atmosphere down there.

Q And what is it that you referred to specifically when you refer to the atmosphere down at the tent area?

A Just didn't like it down there, that's all.

Q You have responded to that very question at an earlier time, have you not, specifically?

A Yes.

Q Under oath, and would you indicate to the jury what the specific reason was as to why you left and with reference to any specific individual?

MR. LOWE: Your Honor, the witness has just answered the question, answered it fully. He didn't indicate that he didn't understand the question. I would object as to its being asked and answered.

THE COURT: He had also indicated that he previously made a specific response under oath, so the objection is overruled. You may answer.

The reporter will read the question back.

(Question was read by the reporter.)

A Well, I left because Leonard Peltier was out there, and he was carrying guns around.

Q (By Mr. Hultman) All right. Now, Mr. Draper, would you {1014} tell the jury what at this time to which you are testifying, as well as during that time, what was your feeling concerning guns?

A Well, I like guns. I don't think it is wrong for people carrying guns and things like that.

THE COURT: You will have to speak up.

THE WITNESS: I said that I like to carry guns and do a little shooting, go hunting myself.

Q (By Mr. Hultman) During the time of the 26th of June, and the immediate days following that, did you have any gun or carry any gun of any kind?

A No.

Q Now, what did you do in and about the Jumping Bull property from the time you got there, approximately two weeks before the 26th of June, what did you do while you were there?

A Well, I used to help the old man, Harry, help him around the house, used to help Leonard, to help work and set up tents.

Q Did you do some work in an about the tent area where the rest of the people live?

A Yes.

Q And would you tell the jury what it is you did?

A Well, I helped chop wood, and I helped set up tents, and I helped haul water, things like that.

Q All right. Approximately how many tents were there in the area where the tents were located?

{1015}

A There was three tents and one tepee.

Q And did the people that you have mentioned, other than yourself, live in that area in those three tents, in the tepee?

A Yes, I used to live down there.

Q Now, during this period of a couple of weeks, what was it that the others did, in terms of their activity in general, would you tell us what generally took place during the two weeks?

A Well, they just about did the same thing I did. We just lived there for two weeks.

Q Was there any training of any kind that took place during the two weeks?

A Maybe there was, but we used to do a little shooting ourseves. I don't know if that's training.

Q Do you recall using the word "training" yourself in responding to a question at another time under oath, that you mentioned the fact that somebody was doing some training?

A Yes, I did.

Q Would explain just to the jury what it was that you mean and meant by the word "training"?

A Well, I used to shoot around, just like I would be sighting the gun, training yourself to sighting the gun.

Q Did anyone ever show you in the encampment area, the general Jumping Bull area and the tent area, or in that general {1016} area, how to use any particular kind of weapon or how to fire any particualar kind of weapon?

A Yes.

Q Who was that?

A Leonard Peltier and Dino.

Q Let us go to the 25th of June, and I would like to ask you whether or not you remember doing anything that day sometime, at any time outside of the Jumping Bull area itself, did you go to town any time that day?

A Yeah. It was in the afternoon. I was with Mike Anderson and Norman Charles, and we went into Oglala, little compound there, went to take showers; and we knew some people there, so we went there and got cleaned up; and on our way back we got stopped by Jack Coler and Ronald Williams and some BIA police officers.

Q All right. You mentioned that you got stopped by two specific men and by name. Did you know at that time what those men's names were?

A No.

Q All right. Have you learned since what the names of those men were?

A Yes.

Q This is why I want to make certain, Mr. Draper, that in responding -- so that in all faithfulness and in all truthfulness, as I know you are, that you tell about what it is you saw {1017} and observed at the time and not necessarily something that you have learned since, so you understand what I am saying?

A Yes.

Q All right. So that you didn't know the names of the two agents at that particular time, is that right?

A No, I didn't know.

Q But you did know they were two agents, is that right?

A That's right.

Q All right. What, if anything, happened there, would you tell the jury then in your own words what it was that took place there?

A Well, they stopped us and asked us who we were, and they asked us if we know Jimmy Eagle. They had a warrant for Jimmy Eagle, and we told them "We don't know him," and the FBI Agent, I think it was Coler, said, "Well, we are not too sure about you guys." Then he said, "I don't know how Eagle looked myself, so we are going to take you into Pine Ridge; and when he was going through Norman's towels, stuff, found a gun clip on him.

Q Now, do you remember what the gun clip looked like, just in general?

A I think it has a 15 round clip, either 308 or 303.

Q I am going to show you a part of an exhibit which has been marked as Government's Exhibit 69-A, and I want you to show the jury or point out to the jury what it is, if you know, a clip is; could you just on this weapon point out to the jury what a clip is, or what you know a clip to be at that time?

{1018}

A Yes.

Q All right. Would you point it out to the jury, just what is the clip.

A This is a clip (indicating).

Q All right. Now, I'm going to ask you with reference to that evening and what you remember, or that day, and the clip you are referring to, does this in any way have any resemblance to the one that you have just touched on Governrnent's Exhibit 69?

A No.

Q All right. What do you remember as far as the clip at that time, that particular time? What did it look like?

A It was a different shape than that for sure, and --

Q All right. And would you describe what the clip looked like as you best recall.

A (No response.)

Q Did it have any rounds in the clip?

A No.

Q As you recall it did not have?

A No.

Q Now, did the agents at that particul time ask any questions of you?

A They just told us "We're going to take you to Pine Ridge," that was it. So we went with them.

Q Did you recall them asking you what your names were?

A Yes.

1019

Q And what if any response did you make?

A I gave the name David Many Horses and Norman and Charles gave their name.

Q And did you recall any of the agents who were there doing anything at the time they asked you those questions?

A No.

Q Do you recall whether or not they wrote the names down in any way?

A Yes. They wrote it down.

Q All right. If I were to show you now what has been marked Government's Exhibit 15 and ask you to look at it and to read the items that are on there. I would ask you first of all whether or not you recognize, not from having seen then before, but just any words that are on that piece of paper. Do you recognize any words, just the words themselves?

A Yes. There's David Many Horses.

Q Is that the same name you gave on that occasion?

A Yes.

Q I notice on this exhibit there is a date, October 1, '58. Does that have an significance as far as you yourself, does that date mean anything to you just as a day?

A That was the birthday I gave to the agents.

Q All right.

MR. HULTMAN: Your Honor, at this particular time I would offer into evidence Government's Exhibit 15.

{1020}

MR. LOWE: No objection.

THE COURT: Exhibit 15 is received.

Q (By Mr. Hultman) Do you recall, Mr. Draper, any of the names that either of the other two men that were boys that were with you at the time gave to the agents?

A No.

Q All right. Now, did the agents at that time, was there anybody else besides the two agents that you recall?

A Yeah. There was some BIA police officers.

Q Did they come up before or after the FBI agents?

A At the same time.

Q All right. And were they in the same car or in a diferent car?

A Same.

Q All right. As you recall they were in the same car.

All right. Now, did anybody in the process of your discussion concerning whether you were Jimmy Eagle or not, did anybody give you a hard time or a hassle in any way at that time?

A No.

Q Would you explain to the jury what was the treatment that you received by the agents.

A They just asked us to go with them. We went with them. There was no fight or nothing.

Q All right. And who got in the car?

{1021}

A All of us.

Q All right. Now, do you recall at that time there were two agents; is that right?

A (No response.)

Q And there were three of you; is that right?

A That's right.

Q Now, did the BIA fellows get in the same car also?

A No. They went back before.

Q All right. So when you responded to me only one car a second ago you were just referring to the agents having one car; is that right?

A They came in two cars really. They sent an officer back to Pine Ridge and the agents stayed.

Q All right. Now, if I'm not, if you don't understand my questioning at any time, would you make sure that you ask me because I want to, want you to tell us what you do reca]l.

All right. What then happened when you got to the station at Pine Ridge?

A There was a man there, the booking officer. The agent told us that this man looked like Eagle, and he took us down to this man who recognized us. When we got there the man told the agents that this ain't none of them.

Q So it was your clear understanding at that time that somebody though that maybe one of you was Eagle or looked like Eagle; is that right?

{1022}

A That's right.

Q And that's why you went to the station?

A Yes.

Q And at the station, though, the man that you talked to there who knew Mr. Eagle said, no, that they are not?

MR. LOWE: Your Honor, this leading is getting outrageous. I was waiting to see how far he was getting to him to give him a script.

THE COURT: The objection is sustained.

Q (By Mr. Hultman) What if anything, what if anything did you do next?

A We just waited around until another officer took us back to Oglala.

Q All right. And did he drop you off where you wanted to go?

A Yes.

Q Now, during this whole period of time did any of the officers in any way give any of you a bad time or anything resembling that?

A No. Were they carrying out their duties as you would expect them to?

A Yes.

Q Was there anything unusual or unordinary about it?

A No.

{1023}

Q Now, where was it, if you can tell the jury, that they left you off, or that this person let you off at your request?

A The turnoff right there on Highway 18. Turnoff that goes towards Jumping Bull residence.

Q All right. Would that generally be as you are looking at Govornment Exhibit 71, if you would turn, would that be somewhere up there on Highway 18 as you can see in this, in this exhibit?

A Yes.

Q All right. And what if anything did the three of you then do?

A We just walked back in the, to the place.

Q All right. And when you say "you walked back to the place," what are you referring to by the "place"?

A Jumping Bull's place.

Q All right. And where then specifically at Jumping Bull's place did you go?

A Over to his house, to one of the cabins there.

Q All right. And did you go, did you see anybody there at the cabin?

A Yes.

Q All right. And who was i[t]?

A We saw Leonard.

Q And what if anything was said or done at that time?

A He just told us, "I hear you guys went to Pine Ridge with some agents," and that was it.

{1024}

Q What was his reaction at that time?

A Well, he felt like he --

MR. LOWE: Objection, Your Honor, to the form of the question. He can only state what he observed. He can't read Mr. Peltier's mind.

MR. HULTMAN: I'm just referring to any observations that he made and any statement that Mr. Peltier may have made at that time.

THE COURT: Why don't you restate the question. The objection is sustained.

Q (By Mr. Hultman) All right. Did Mr. Peltier say anything specific to the three of you at that time?

A Just what I told him.

Q All right. And would you tell us the manner in which he said it to the three of you?

A He said, "I heard you guys went to Pine Ridge with some agents, and did they do anything to you guys, or anything like that, did they harm you?" We told him no, because we went along with them. Told him they were looking for Eagle. He said "It's okay."

Q All right. Now would you point out on Government's Exhibit 71 for the jury, and if you have to get up to do that, with the pointer, would you show them the building where this conversation took place.

A (Indicating.)

{1025}

Q And is that a log house?

A Yes.

MR. HULTMAN: Let the record show that the witness poirted out the residence that has been commonly referred to as the log house.

Q (By Mr. Hultman) Now, where did you stay that night then?

A I stayed up in the tent in the back of Jumping Bull's

Q All right. And did anybody stay there with you?

A No.

Q So is it a fact that you stayed in that tent by yourself; is that right, Mr. Draper?

A That's right.

Q All right. Now, tell us, in the morning what did you do in the morning, the next morning, which is the 26th of June?

A I woke up about 8:00