VOLUME VII

Pages 1209-1446

{1209}

THURSDAY MORNING SESSION

March 24, 1977

Pursuant to adjournment as aforesaid, at 9:00 o'clock, a.m., on Thursday, March 24, 1977, the Court met, present and presiding as before; and the trial proceeded as follows, the Defendant being present in person, outside of the presence and hearing of the jury:

MR. TAIKEFF: May counsel approach the bench?

THE COURT: You may.

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

MR. TAIKEFF: Your Honor, I asked to approach because the matter to which I want to address myself was taken up by your Honor in chambers, apparently because your Honor felt it was of a sensitive nature.

I made inquiries last night concerning the so-called sighting of a certain person sitting in the audience that your Honor observed. Your Honor did not state to counsel what it was that your Honor observed, and I would like to report to your Honor what I learned by making my inquiries last evening.

I was told that apparently your Honor has misinterpreted something which he has seen, and here is what I was informed: That he wears around his neck a leather thong on which is a medicine bag, and that he is a holy {1210} man who frequently prays; what he does when he prays is that he holds that medicine bag and then recites a prayer. If your Honor saw that, your Honor was not seeing any signal but your Honor was seeing something which he has done frequently and for a very long time. There is nothing new or special in this courtroom.

MR. HULTMAN: Could I respond, counsel?

Your Honor, I don't in any way wish to imply I am an expert in the area, but my wife is of Indian heritage and I do have some knowledge of some of the customs and so forth.

From that standpoint, as well as from an educational reading and so forth, I have no disagreement with what counsel is saying; but I would like to point out on the record that this very act in the presence of someone who likewise believes in the same things has an impact on that individual if he is observing it at that moment; that that has something to do with that individual also in terms of what is right, what is wrong and what is true and what is untrue.

Now, so what I am saying is it is like if, for example, someone were to stand and bow his head and make a prayer while any one of us were on the stand in our presence, that would have a relationship to any one of us sitting in the witness chair at that stand; and I submit {1211} that in the case of an Indian witness, this very event would have far, far more significance than the one to which I refer.

So what I am saying is merely that the acts themselves, if the witness is in a posture of where he is seeing them, that even though there is nothing intentional about it in any way, that it does have an impact on that witness.

MR. TAIKEFF: I appreciate what Mr. Hultman said. I do want to point out to your Honor that I took yesterday's colloquy to mean that there was some sort of prearranged signals that would indicate to a witness whether an answer should be negative or positive, and I was offering that to assure the Court to the extent that my inquiry would, that there was absolutely no such thing. As to the merits of what Mr. Hultman says, I don't know exactly how I feel about it. It seems to me that if each person's God were present in the courtroom so that a witness could see his own God and be reminded of the seriousness of what was going on and the necessity of telling the truth, I don't know that I would necessarily object to that. There are many courtrooms where it says "In God we trust." That's a constant reminder of the seriousness of what goes on in our courtrooms. I don't mean to resist the comment by Mr. Hultman in any way. I just wanted to assure all, if that were {1212} possible, that this was not some kind of a prearranged situation.

THE COURT: Well, the motion that he made that I observed was not the type of a motion that you just described. As I mentioned the Clerk had been advised about it. I had suggested to the Clerk that he watch for that kind of thing because it had been reported that it was going on the day before, and the Clerk reported to me that this particular individual was signaling. I did not ask the Clerk as to what type of signal it was, but I observed the individual when the next question was asked, and the signal immediately went up; and I have not advised the Clerk as to what signal I observed. I do not know what he observed. I will ask the Clerk at this time to state the type of signal.

THE CLERK: It was, as Mr. Taikeff indicated, going to this throat. Just to mention one thing, that would start when the question was asked and the hand would remain there until the answer was given and then it would be dropped, and then when the next question was asked, he would again go to his throat; and then apparent eye contact with the witness. It would remain there until the answer. In both cases, I think it was negative answers he was giving.

{1213}

MR. TAIKEFF: I wonder if Mr. Hanson would state for the record if he has revealed that fact to anyone prior to this moment?

THE CLERK: No.

THE COURT: He had not revealed it to me.

MR. TAIKEFF: I specifically wanted it to reflect the record whether any of the defense counsel could have known what his observation was.

MR. HULTMAN: Or any of the Government, we had no knowledge.

THE COURT: The signal I observed, his hand went to his forehead, something like this (indicating), and kind of drew it across, and it went up after the question was asked. This person's hand went up to his forehead, and he made some kind of a motion on his forehead and then dropped it.

MR. LOWE: Your Honor, could you state whether that was an isolated occasion or did that happen more than one time?

THE COURT: This is the only time I observed it because the Clerk had been advised to watch for it. I was not paying any attention to the audience. It had been reported that signaling had gone on the day before, and the Clerk reported to me and I watched the individual when the next question was asked. The hand signal went up {1214} to the area of his forehead and his eye.

MR. HULTMAN: Counsel, might I put on the record the things that I observed the day before and to which I had specific reference to Dino Butler and the person sitting next to him, and there were none of the things --

MR. TAIKEFF: (Interrupting) I think that's clear on the record. I wanted to offer what I discovered last night.

THE COURT: I appreciate that information.

MR. TAIKEFF: While we are here, I understand counsel has arranged for the witness, Norman Brown, and I trust by one mechanism of another the defense counsel would have an opportunity to confer with Mr Brown's counsel about possible interview in the presence of his counsel sometime prior to the Government calling him to the stand?

MR. HULTMAN: Your Honor, I would suggest that we do that now because I do intend to call this witness as my next witness.

THE COURT: What do you mean "now"?

MR. HULTMAN: Well, as I say, I am ready to call him, and I intend to call him as soon as we finish with this.

THE COURT: Mr. Coward is to be cross-examined?

MR. HULTMAN: Yes, and when Mr. Coward is finished, I intend to call Mr. Brown as the next witness; and I think we could probably dispose -- at least go to Step 1, {1215} that counsel visit with counsel and determine whether or not he wishes to or not; and that might resolve matters very quickly. If then there is an agreement to do it, then we would have another problem in terms of when that would be then be done; but I would suggest we did not, as in the case of the two or other three requests, we had none, so we were prepared to immediately proceed.

MR. TAIKEFF: Would your Honor prefer that we go do that before the jury comes in so we can continue without interruption?

THE COURT: On the other hand, I would like to minimize the time.

MR. HULTMAN: If we did that, we might speed things up.

MR. TAIKEFF: I would be prepared, in spite of the fact that I need a break, like everybody else, and so does Mr. Lowe, if the answer is "yes", to conduct that interview during the morning recess. The witness will probably be cross-examined during that time, so there will probably be not any extra break in the proceedings.

THE COURT: Well then, the procedure would be to recess at this time to give you an opportunity to confer with Brown's lawyer.

MR. LOWE: Are they here?

{1216}

MR. HULTMAN: I haven't seen them, but the lawyer is here, and they are in the witness room, the same place that you were before.

THE COURT: The Court will recess for five minutes. (Whereupon, the following proceedings were had in the courtroom:)

THE COURT: The Court is in recess for five minutes.

(Recess taken.)

{1217}

MR. TAIKEFF: May I report to Your Honor?

THE COURT: You may.

MR. TAIKEFF: We have spoken with Counsel and he has indicated his willingness to have us confer with his client in his presence and upon our suggestion he asks Your Honor that a court reporter be sent so that the matter can be taken down.

THE COURT: And when would you intend?

MR. TAIKEFF: At the morning recess.

THE COURT: You would expect to get it completed in that time?

MR. TAIKEFF: We're certain we can accomplish what we have to accomplish during that period of time.

THE COURT: Very well.

A court reporter will be asked to attend. Does the United States intend to call another witness at this time or will Mr. Coward be called?

MR. SIKMA: Mr. Coward would be recalled, Your Honor.

THE COURT: Mr. Coward may be recalled. The jury may be brought in. (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)

THE COURT: You may proceed.

MR. TAIKEFF: Thank you, Your Honor.

{1218}

BY MR. TAIKEFF: CROSS-EXAMINATION

Q Good morning, Mr. Coward.

A Morning, sir.

Q Mr. Coward, in June of 1975 where was your permanent assignment, your regular assignment?

A Rapid City, South Dakota.

Q And as such where would you say you spent most of your time?

A On the Pine Ridge Indian Reservation.

Q Would it be fair to say that essentially all of your working time was either on the reservation or in connection with matters that arose on the reservation?

A That's correct, sir.

Q How many agents were there like you functioning in that capacity at or about that time?

A There were 12 of us assigned to the resident agency at Rapid City, South Dakota.

Q And did that account for all the agents who were working in a full time or near full time capacity on the reservation at that time?

A On the Pine Ridge Indian Reservation?

Q Yes, sir.

A Yes, sir.

Q Were there other reservations within the jurisdiction of your office?

A Yes, sir.

{1219}

Q And were there other agents assigned to those reservations?

A Yes, sir.

Q Approximately how many?

A Well, I believe there was approximately four at that time that were assigned to Pierre, South Dakota resident agency.

Q And where were they working?

A They would work the Rose Bud Indian Reservation.

Q That is in some sense or another adjacent to the Pine Ridge, is it not?

A It's contiguous; yes.

Q And were there any outside agents, that is to say agents normally or permanently assigned to other offices who were on temporary duty?

A Yes, sir.

Q How many were there?

A You're speaking of June of '75?

Q In the spring of '75 before this incident in particular.

A Okay. Occasionally people would come in and out and give us a hand; yes.

Q Could you give us some sort of an average figure representing in the spring of 1975 the number of FBI agents who were employed essentially full time on those two reservations in South Dakota?

A There are approximately 16 men employed full time working {1220} out of those two particular offices.

Q And any people on temporary assignment in addition to those?

A Well, that was sporadic. When the need arose we would ask for additional help.

Q And what was your actual experience in that regard? How often and how many?

A Well, several times we'd ask for help and received it.

Q In what numbers of people: two people, ten people, twenty people?

A The most at any one time would be six people and that would have been the week preceding the day that the two agents were killed.

Q Do you know the exact or approximate combined population of those two reservations?

A I do know that Pine Ridge Indian Reservation at that particular time was approximately 12,000 people.

Q Do you have any idea what the comparable figure was for Rose Bud?

A I don't. But I believe it was smaller.

Q Based on your own knowledge and experience, if you possess such, would you say that the number of agents per thousand residents was comparable to or substantially higher than most parts of the United States?

A I don't quite understand what you mean.

{1221}

Q Well, let's say in New York City there are about eight million people and maybe 100 agents. On the Pine Ridge and Rose Bud there may have been 20,000 people and 25 agents. Do you have any idea whether that was in the FBI's point of view a high crime area that required a higher ratio of agents to people than a place like New York City?

A That's an administrative decision as to how many people are required in what particular location.

Q You don't have any information on the subject for comparison purposes, I gather.

A The only thing I can tell you is that years ago I think as far as police records were that you had to have 1.1 or 1.3 percent policemen per thousand.

Q How long did you work the reservation, how long were you assigned there?

A I came there during Wounded Knee in 1973.

Q And from that time until June of 1975 did you find that was a relatively high crime area?

A My opinion?

Q Yes, sir.

A Yes.

Q And in the main would you say that those crimes were crimes of violence as opposed to white collar crimes or other such crimes?

A Well, that was the particular crimes that our responsibility, {1222} that was my responsibility; yes.

Q We're talking now about assaults, murders, things of that sort?

A Yes, sir.

Q Are you or have you ever been a member of a S.W.A.T team?

A I am.

Q Would you briefly tell the court and jury what special function that is, what that means.

MR. SIKMA: Your Honor, I'd object to this as totally irrelevant to the case.

THE COURT: What is the relevancy?

MR. TAIKEFF: The relevancy, Your Honor, is to give the jury some idea of what life is really like on the reservation so they won't get some notion it's like living in Fargo or Moorhead.

MR. SIKMA: Your Honor, I would submit that there is still no relevancy shown. There are S.W.A.T. teams all over the United States.

MR. TAIKEFF: I would call to Your Honor's attention the fact there has been considerable evidence concerning the possession of weapons by the defendant and others whom he was living with and I think Your Honor would recognize that for those of us who live in more conventional environments that may have certain implications and I think the defendant should have an opportunity to show why such a thing occurred.

{1223}

THE COURT: This is a matter to be resolved by the Court if the defense determines to offer evidence in the case.

MR. TAIKEFF: I'm willing to adopt the witness for that purpose as my own witness if Your Honor chooses to allow.

THE COURT: Then it's out of order because the cross- examination is limited to the subject of the direct examination.

MR. TAIKEFF: That's conventionally true, but it's within the Court's discretion to allow the other side to adopt the witness as its own in order to permit the trial to flow more smoothly and not require the witness to wait around for a week or two. I would abide by whatever Your Honor's suggestion is.

{1224}

MR. SIKMA: Your Honor, I would nonetheless admit that whether it's counsel's witness or any other witness that it's, it remains totally irrelevant to the subject at hand. It does not, this agent's training or other agent's training, does not develop a legal right or obligation on the part of those persons in the area where these agents are working to have an opportunity or a right to carry an exceptional or additional number of firearms.

THE COURT: On the objection of counsel that it is irrelevant, the witness will be, the cross-examination will be limited to the scope of the direct examination.

MR. TAIKEFF: Yes, Your Honor.

Q (By Mr. Taikeff) Were you one of those who participated in the investigation which followed the events of June 26, 1975?

A Yes, sir, I was.

Q And during the six months that followed the incident, that is to say for the balance of the year 1975, do you know how any special agents of the FBI were involved in that investigation?

MR. SIKMA: Your Honor, once again I would object as totally irrelevant.

MR. TAIKEFF: Now, Your Honor --

MR. SIKMA: Question of guilt or innocence of the defendant.

{1225}

MR. TAIKEFF: It is not in any way irrelevant because it is crucial with respect to the role played by this particular witness. And I will develop that. This is really a foundation question for other matters to be gone into on cross-examination.

THE COURT: I will allow you to proceed.

MR. TAIKEFF: Thank you, Your Honor.

Q (By Mr. Taikeff) Do you recall the question, sir?

A Would you repeat it, please.

Q I'll restate it if I can. I asked you in the latter part of 1975 after the incident if you had any knowledge as to how many special agents of the FBI were involved in the investigation of these deaths?

A No, sir, I do not.

Q How many agents did you work, or come in contact with in connection with that investigation?

A Well, I worked with the members of the Rapid City resident agency.

Q Was Agent Adams one of those people?

A Yes, sir.

Q Was Agent Hughes one of those people?

A Yes, sir.

Q Who were the other people? Agent Price?

MR. SIKMA: Your Honor, I would object. The question is too broad.

{1226}

MR. TAIKEFF: It couldn't, Your Honor, have an answer that exceeded more than nine names. According to the testimony there are only twelve agents assigned.

THE COURT: You may proceed.

MR. TAIKEFF: Thank you, Your Honor.

Q (By Mr. Taikeff) The names of the other people you worked with on this case?

A Well, there was Agent Price, Agent Skelly, Agent McCarty, Agent Wiley, Agent O'Clock. Those were some of the members of the RA that I worked with.

Q How about Agent Waring?

A Did I work with them personally?

Q Yes.

A Yes, I had. Yes.

Q And he was working on this case, was he not?

A Yes, sir, he was.

Q And did you have occasion from time to time to confer with these people that you've named?

A Yes, sir.

Q About the facts of the case?

A Yes, sir.

Q Did you read each other's reports, 302's?

A I did not.

Q Do you know of your own personal knowledge whether there as any exchange of information by reading each other's 302's?

{1227}

A Personally? No.

Q Have any conferences in groups of three or four?

A Well, we had several conferences, yes.

Q How often, let's say during the month following the incident?

A We had conferences every day.

Q And on the average, I'm not looking for you to be precise, just give us an idea, how much time did you spend with each other in conference about what was being developed concerning the case?

A Well, it was our practice to have one in the morning and one in the evening so we could just keep up, you know, everything together.

Q Now, I'm not asking you for details, just a general statement. Did you discuss from time to time a developing theory of what happened?

A Well, we were trying to determine, you know, what happened. But I wouldn't call it a theory.

Q Well, I gather that you collected facts and as time went you collected more and more facts; isn't that true?

A That's correct.

Q And there came a time early in the investigation, didn't there, when what information you had gave you some idea of what may have taken place that day?

A Well, that's true, yes.

{1228}

Q Do you object to my referring to that as a theory of that moment, at that moment as to what had occurred? Can we use that as a shorthand?

A Yes, we can.

Q Okay. Now, was there an agent or two or more who were, if not in an official capacity, at least by virtue of what they were doing, in charge of the investigation other than the agent ho was in charge of the entire office?

A Well, there were people who, you know, were our bosses, yes.

Q Okay. But in terms of a subboss, was there some person or were there some persons who were the key agents investigating this case?

A Well, there was a man who was assigned the case.

Q Who was that?

A Dean Hughes.

Q So nominally he was the head agent on this case?

A Yes.

Q Was he one of those people with whom you met from time to time?

A Yes, sir.

Q Who were the agents who were present most of the time in those morning and evening meetings?

A Well, of course those who were there in town that weren't doing other things. But everybody who was there working on the {1229} case was there every day.

Q Was Adams frequently there?

A Yes, he was.

Q Was Waring frequently there?

A Yes, sir.

Q Was Skelly frequently there?

A Yes, sir.

MR. TAIKEFF: Excuse me one moment, please.

Q (By Mr. Taikeff) Did you have any personal relationship with either of the two agents who died?

A Yes, I did.

Q With one of them or both of them?

A Both of them.

Q Did you consider them to be your friends as well as your professional colleagues?

A Yes, sir, I did.

Q So I assume then that you viewed this as both a case you were working on and a matter of personal concern?

A Yes, sir.

Q Is it fair to say that you were quite angry about the loss of your colleagues and friends?

A I don't think you could say I was angry.

Q It was worse than that?

A Well, I was upset at the loss.

Q Severely upset?

{1230}

A I wouldn't say severely.

Q Intent upon cracking or solving this case more than most?

A No. I wouldn't put it that way.

Q You approached this case with the same coolness and objectivity with which you approach any of your cases, is that what you are saying?

A I tried to do that, yes, sir.

Q You tried to make sure that your personal feelings didn't get involved in your work in any way, is that --

A That's correct.

Q Did you ever before in your career as an FBI agent investigate the alleged murder of a friend and colleague?

A I participated.

Q Someone you knew?

A Yes, sir.

Q How much of your working time during the month following June 26th did you devote to this case?

A Sometimes better than twelve hours a day.

Q That's more than a hundred per cent of your ordinary working time, supposed working time I assume. You're supposed work eight hours a day, but on your job you usually end up working more?

A I did this particular case.

{1231}

Q (By Mr Taikeff) I am handing you Defendant's Exhibits 77-A, 78-A and 79-A which are not in evidence, and marked for identification, so they would be withheld from the jury's view, and ask if you have ever seen those before?

A These particular copies?

Q Or anything that was essentially identical to it or them.

A I have seen -- this is a copy, it appears 77-A, I have seen that; 78-A looks familiar, and 79-A looks familiar too.

Q Did those prepare those or something just like it?

A I prepared 78-A. It appears to be a copy with my initial on it, and the other two.

Q Did you prepare any name lists in association with those documents?

A I was assisted, yes, sir.

Q Do you know the identity of the people who are depicted in these photographs?

A You mean if you were to show them to me right now?

Q Yes.

A Possibly some.

Q I am showing you Defendant's Exhibit 78-A, the page marked Page 3; and I am pointing in particular to the photograph in the upper right-hand corner designated Photograph No. 3. Do you know the name of that person?

A No, sir, I don't.

Q I show you Defendant's Exhibit 78. Would you tell me, sir, {1232} whether that is the companion name list?

A (Examining) Let me look here. Page 3 is, yes.

Q What is the name of that person?

A Of the one you say, No. 3?

Q Yes, sir, on Page 3.

A It says Norman Charles.

Q I realize that it says that on Exhibit 78. I am asking you if, after examining 78, and 78-A, you can tell us whose picture that is, not whose name appears on the list, do you understand my question now?

A No, I don't.

Q O.K. This is a list which purports to name the people?

A Um-hum.

Q And I acknowledge that on that list it says a certain name?

A That's correct.

Q I assume you and I can both read the name. The question is, having looked at the list and having looked back at the photograph, does that in any way confirm to you, of your own knowledge, from some basis other than looking at this list, the name of that person?

A I don't know if it is Norman Charles.

Q You don't know?

A No.

Q O.K. On June 26th, 1975, your professional activities were in {1233} one sense or another integrated with those of other law enforcement agencies, is that correct?

A That's correct.

Q And amongst them would be the Bureau of Indian Affairs police?

A Yes, sir.

Q Called the BIA, or the BIA police?

A Yes, sir.

Q And the South Dakota State Police, is that right?

A South Dakota Highway Patrol, yes, sir.

Q Highway Patrol. Did you ever receive or have occasion to review any report written by any of those law enforcement officials?

A Yes, sir.

Q Were there many, say, more than 15 or 20 in number, the reports?

A Well, I had read several, yes.

Q Did you ever read a report by a person named Eccofey?

A Which Eccofey?

Q I need a moment in order to give you his first name. Robert Ecoffey.

A That's possible, sir, but I don't recall that particular statement.

Q Do you recall whether the report of Robert Ecoffey was incorporated in a 302 verbatim with nothing more than a {1234} preamble paragraph that said "The following" -- in essence: "The following is a copy of the report by Officer Ecoffey of the Bureau of Indian Affairs"?

A You mean, do I know that one exists?

Q Yes.

A A statement?

Q Yes. Are you aware that one exists?

A Personally, I don't personally know.

Q I show you Defendant's --

MR. SIKMA: (Interrupting) Your Honor, I would object to this. The witness has just stated that he is not familiar with such a document. He had Mr. Ecoffey on the stand and didn't ask him any questions about this. I to see the relevancy further from the standpoint of this particular case.

MR. TAIKEFF: First of all, your Honor, Mr. Sikma must have been sleeping if he says I did not ask Mr. Ecoffey about this report. The record is clear that I laid a sufficient foundation to introduce it into evidence when I am ready to offer it.

Secondly, I want to make sure that the witness has exhausted his memory on the subject, and I think I am entitled to show him a document to see if his memory is affected by that showing.

THE COURT: You may show him the document for that {1235} purpose.

MR. TAIKEFF: Thank you.

Q (By Mr. Taikeff) I show you Defendant's Exhibit 87 for identification and ask, sir, after you have a chance to look at it, whether you ever have seen that document, a copy of it or any document which it may refer to?

A (Examining).

Q It is not in evidence, and its contents should not be revealed at this time.

A I don't recall ever seeing it.

Q Do I understand that to mean you have never seen that 302?

A No. I can't say that. What I am saying is, I don't recall ever seeing that particular 302.

Q O.k. Have you ever seen the document which is referred to in the 302 or duplicated in the 302?

A (Examining) No, sir.

Q Do you know a person by the name of Edward M. Moreland?

A I know the name.

Q In what context?

A Well, I believe there was an agent there during that investigation by the name of Moreland.

Q Special Agent of the Federal Bureau of Investigation?

A I believe so.

Q Working out of the Rapid City office?

A He wasn't working out of the Rapid City office, no.

{1236}

Q Working on this case in South Dakota?

A Assisting, yes, sir.

Q On a temporary basis?

A Yes, sir.

Q I show you Defendant's Exhibits 93 and 94 for identification. Those are also not in evidence, should not be displayed to the jury at this time, and ask whether what is depicted in those photographs is familiar to you in any way?

A (Examining) Any way?

Q Yes. I am not ask you whether you know generically what the object is, but specifically is it familiar to you?

A Yes, it is.

Q In what connection are you familiar with the object?

A You want me to answer that?

Q Please.

A I saw this particular object, oh, sometime after the shooting I mean, days after, maybe even weeks.

Q Where?

A I believe it was in Pine Ridge. I can't say for certain (examining).

Q Would you be kind enough to direct your attention to Government Exhibit 71 behind you, and I ask specifically whether you know what these little black rectangles represent at or near the point where there is a letter "P" and a "P-1" on Government Exhibit 71?

{1237}

A (Examining) Basically they appear to me to be automobiles.

Q Do you have any knowledge from your presence at the scene whether in fact they are automobiles, or were automobiles there?

A I recall seeing automobiles the next day.

Q That is to say, on the 27th of June?

A Yes.

Q Do you recall how many?

A I just recall that there were some.

MR. TAIKEFF: Do you have those photos, Mr. Hanson?

Q (By Mr. Taikeff) I am bringing to you, sir, Government Exhibit 56 which is in evidence, and ask whether you would be kind enough to look through the album. I think there are three or four pages of photographs in there, and then I will put a question to you.

A (Examining).

Q I would like the record to reflect the fact that as you looked through that album, you looked over your shoulder at Government Exhibit 71, am I correct about that?

A Yes, sir.

Q O.k. Now, do you recognize in the photograph or any of the photographs the area which I referred to before around these automobile emblems?

A Yes, sir.

Q And in looking at those photographs, do you have -- or after looking at the photographs do you have any recollection {1238} concerning what vehicles you saw there the following day on June 27th at that spot?

A Well, I saw vehicles, but I can't tell you what the vehicles were in my own mind.

Q O.k. Now, I ask you to look at Defendant's Exhibits 93 and 94 for identification, and ask whether what you see in those photographs was present amongst those vehicles?

A These here (indicating)? No, sir. (Examining) unh-unh, not that I can see, not that particular object (indicating).

Q All right. When you say "that particular object," you are referring to the object depicted in the two photographs, 93 and 94 for identification?

A These two particular -- 94 and 93, not that I can see are in this photograph.

Q O.k. Where in Pine Ridge did you see the object which is depicted in 93 and 94 for identification?

A These two particular, 94 and 93, not that I can see -- are in this photograph.

Q O.k. Where in Pine Ridge did you see the object which is depicted in 93 and 94 for identification?

A That would have been at the building in the utilities yard.

Q Of what?

A Well, in the Bureau of Indian Affairs' buildings.

Q As far as you know, was that object the property of the {1239} Bureau of Indian Affairs?

A Not to my knowledge, it wasn't.

Q As far as you know, was it there as evidence in connection with some official activity of the Bureau of Indian Affairs?

A I later learned that it was, yes.

Q And from whom did you learn that?

A Well, the conferences, the general passing of information, that the vehicle was over in the B and U Building.

Q At the time that you just referred to, what was your understanding as to the role of that vehicle?

A Well, as I understood it, that that -- I can't say, not specifically that vehicle, but all the vehicles that we got out of there were somehow connected with the people involved in the shooting.

Q All right. I am bringing to you, sir, Government Exhibit 55 which is in evidence, and I ask you to look at Page 11, Photograph C, photograph of a vehicle, Page 12, Photograph B, that's the same vehicle as the one I just pointed out to you, isn't that correct, sir?

A It appears so.

Q And then there is Page 23. That appears to be the same vehicle as the two you just looked at?

A Yes.

Q How about that vehicle, did you see that vehicle in that location at the BIA Building at or about that time?

{1240}

A I don't recall.

Q I now show you Page 31 which has a single photograph, and Page 33 which has a single photograph, and Page 34 which has a single photograph. First, I ask you whether or agree that the same vehicle appears to be depicted in those three photographs?

A It appears.

MR. TAIKEFF: All right. If I may, your Honor, I just want to hold those photographs up to the jury so they can follow the questioning.

(Counsel displays exhibit to the jury.)

{1241}

Q Going back to page 31, sir, that's a red and white Chevrolet, is it not?

A It's white over red Chevrolet panel; yes.

Q When you say "panel," you mean a panel truck?

A That's correct.

Q Would you agree that the word "van" might describe that type of a vehicle?

A No, I wouldn't.

Q You'd call it a panel truck?

A Yes.

Q Would you call it a pickup? Yes or no?

A No.

Q Did you see that panel truck at the BIA building?

A Eventually.

Q If I tell you that we thus far in this case have referred to that vehicle as a van, would you permit me on that basis to call it a van without objection from you so the jury is not confused about what vehicle we're talking about? Just for purposes of this trial. I understand you call it a panel truck.

A That's correct.

Q But I may refer to it as a van without objection from you? A (Witness indicates.)

Q I just wanted to get some ground rules with you. That's all. Now when that van was at the BIA building, were there {1242} any vehicles near it?

A Yes, there were.

Q Can you describe those vehicles?

A I do recall seeing this particular panel truck but --

Q Can we call it a van, please. I understand the problem we're having but I want to make sure we use a consistent terminology so we don't create any unnecessary confusion.

MR. SIKMA: Your Honor, I'd object to that. The witness can call it whatever refreshes his recollection.

THE COURT: The jury has, I think it can distinguish between the two. The witness will be permitted to call it a panel if that's what he considers it.

MR. TAIKEFF: All right, Your Honor.

Q (By Mr. Taikeff) Go ahead, sir. I think I interrupted your answer. I apologize.

A There were other vehicles there but I can't specifically state what they were.

MR. TAIKEFF: If I may have just a moment, Your Honor, please.

THE COURT: You may.

Q (By Mr. Taikeff) The photographs I'm about to show you are not in evidence and should be withheld from the jury.

MR. SIKMA: Your Honor, I wonder if we might have an opportunity to view the photographs which are being shown. I don't know whether I've seen them or not. Also, perhaps, to {1243} raise a possible objection if that's necessary, but it's not possible to do that without knowing what the witness is being shown.

MR. TAIKEFF: Your Honor, without conceding that the government has a right to see them, under the circumstances I'll be happy to show them to the government.

THE COURT: Very well.

MR. SIKMA: Your Honor, I think the reciprocal discovery ordered in the case, and I would hope that Counsel would in that respect give us an opportunity to see the items which he has as exhibits.

MR. TAIKEFF: Your Honor, I would like to point out there is no misunderstanding, reciprocal discovery refers to evidence to be offered in the defendant's case in chief. This is cross-examination and the use of these photographs is part of the lawyer's work product and is not required to be shown to the government. But in spite of that fact, under the circumstances of this particular cross-examination I have done so.

Q (By Mr. Taikeff) First I'm going to show you Defendant's Exhibit 96 for identification. Do you recognize the object in those photographs?

A Well, I recognize; yes.

Q I assume you recognize the fact that's an automobile?

A That's correct.

{1244}

Q Do you know which automobile?

A Well, based on what you have showed me thus far, it appears to be the one you showed me earlier. I can't say that unequivocally based on this particular photo alone.

Q Okay. I am returning to you Government's Exhibit 55 which is the album of photographs from tent city which is in evidence and showing you page 11, photograph C which shows a green automobile and ask whether the photograph you're holding is of that automobile?

A Looks similar.

Q Okay. By the way, there came a time, did there not, when that green automobile was at the BIA building, right?

A I believe it was towed in but exactly where it ended up I do not know.

Q And the towing in was in connection with the official investigation that was going on with reference to this case, right?

A Yes, sir.

Q Now, sir, I show you No. 97 for identification and ask you whether in fact that depicts that green automobile which you see in Government's Exhibit 55?

A I can say this much: that it, this particular Exhibit 97 bears the same license plate as in your album here identified {1245} as Government's Exhibit 55.

Q How about the make of the vehicle?

A Same.

Q How about the color of the vehicle?

A Well, depends on the light here.

Q How about the number and position of the windshield wipers?

A I don't think that's -- well, it appears to be the same.

Q How about the grill work?

A You can't tell. One's the forward and one's the rear.

Q I show you Defendant's Exhibit 103 for identification and ask you whether you are able now to say whether or not that's somewhat similar vehicle that was at the BIA place -- withdrawn. Whether you can say that the somewhat similar vehicle in the photographs I have been showing you which are not in evidence are of the vehicle which was at the BIA place?

A Well, it appears that the vehicle in Exhibit 103 and Government Exhibit 55 appear to be the same vehicle.

Q I see. Would you say that the vehicle in Defendant's Exhibit 98 for identification is also that same green Ford, and specifically whether it is at the BIA building?

A Well, I can say it appears to be the same vehicle but I can't say specifically if that's the BIA building.

Q Do you notice that there are people in the photograph?

A Yes, I do.

{1246}

Q Do you recognize any of them?

A Yes, sir.

Q Who are they?

A Dean Hughs, Jack Schwartz and Joe Goss.

Q And other than Hughs whom you already told us about, who are the other two gentlemen?

A Well, Joe Goss is a special agent for the FBI.

Q Yes, And the other gentlemen?

A Jack Schwartz?

Q Yes, sir.

A Well, I understood him to be an attorney.

MR. TAIKEFF: At this time, Your Honor, I offer into evidence Defendant's Exhibits 96, 97, 98 and 103.

MR. SIKMA: Your Honor, I object on the grounds of relevancy. No relevancy here has been shown in any respect. Might I ask one question, Your Honor, for the purpose of posing a further objection?

THE COURT: You may.

MR. TAIKEFF: No objection to that, Your Honor.

THE COURT: You may.

MR. SIKMA: Can you tell me whether you and other agents involved in this case pursued many leads which turned no evidence at all in the case?

THE WITNESS: Yes, sir.

MR. TAIKEFF: I object to that question and move to {1247} strike it at this time because it has nothing to do with the voir dire on the offer of proof. It's a cross-examination question which goes to the weight of the evidence which has been offered .

MR. SIKMA: I think it goes directly to the weight, Your Honor.

MR. TAIKEFF: Well, then, if Your Honor does not sustain my objection, I would like to ask a counterpoint question.

MR. SIKMA: I have one further question in addition to this one, Your Honor, if you do not sustain the objection to the question.

THE COURT: You have one additional question you want to ask of this witness?

MR. SIKMA: Yes. On voir dire, Your Honor.

THE COURT: Before I rule on the other objection you may ask the additional question.

MR, SIKMA: Mr. Coward, did this turning up leads include the examining of a number of junked vehicles?

THE WITNESS: Yes, it did.

MR. TAIKEFF: I'd like to ask one question which I think will resolve the matter.

Q (By Mr. Taikeff) Did the vehicles in question to which Mr. Sikma made reference come from the area known as the Jumping {1248} Bull area? Yes or no?

A What junked vehicles?

Q Any vehicles that you had there in the BIA lot. Did it come off these premises which are depicted in Government Exhibit 71? Yes or no?

A I don't understand your question. If you would, in relationship to his question is where I'm confused.

Q All right. Mr. Sikma asked you whether you were exploring every possible lead.

A That's correct.

Q In the course of your investigation.

A That's correct.

Q And did that include exploring leads relating to vehicles which were found on the premises which is depicted in Government's Exhibit 71? Yes or no?

A Yes, sir.

Q And amongst the several vehicles that you may have investigated, do the photographs which I just offered in evidence depict one of the vehicles which you pursued in that manner?

A Yes, sir.

MR. TAIKEFF: Your Honor, I renew my offer.

MR. SIKMA: Your Honor, I would again interpose an objection that there is still no showing of relevancy whatsoever.

THE COURT: Counsel approach the bench.

{1249}

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

THE COURT: Not having seen the pictures, I would like --

MR. TAIKEFF: They are of the Ford, Your Honor, which was found in tent city at the BIA building.

THE COURT: And then the same photo, or apparently the pictures of this same auto appear at Exhibit 55?

MR. TAIKEFF: That's correct.

MR. SIKMA: Yes. This is the green car that was found in tent city. I think that in the background here he's referring to Photograph 98 is the other car which I can state for the record at this time, I believe, from his questioning of it, one of the cars which we referred to as a junked vehicle.

MR. TAIKEFF: And in addition, in the background of 97 is the red van. So that ties them altogether at that location and it is a critical piece of evidence for the defense that they were all there. I make that as a representation to the Court. It will be developed in great detail in the course of this trial.

MR. SIKMA: Your Honor, I say that the vehicle that was found or that red vehicle that was towed in was examined. However, I would also state that particular vehicle before it was towed in was necessary by way of offer of proof to {1250} put a battery in it before they could start it.

MR. TAIKEFF: I don't deny that that's the fact. It's what role is played at a certain point. This is significant. I will not make a contention at any time in the course of this trial that that vehicle was actually used. You need not fear that. I will be bound by that in connection with the proof I offer.

MR. SIKMA: Then I fail to see the relevance.

MR. TAIKEFF: I don't have to explain my entire theory to the government to get in a photograph of this vehicle that is already in evidence in another photograph.

THE COURT: Well, actually are seeking to put these photos in evidence to show the proximity of other vehicles, I presume, is that it?

MR. TAIKEFF: I'm seeking to show that that vehicle was taken in and I will eventually use that as a springboard to show that certain other vehicles were taken in which is a process of accretion by which I will prove my case, although there is no burden upon us to prove anything. And the question of relevance, I think, is obvious .

MR. SIKMA: Your Honor, this is really a waste of time as far as this witness is concerned because he really can't say with any certainty as to where it is and --

{1251}

MR. TAIKEFF: He has said where it is. He said it's in the BIA lot.

MR. SIKMA: He said he believes he saw it.

MR. TAIKEFF: That goes to the weight of the evidence, not its admissibility.

MR. SIKMA: Certainly not shown to be relevant at this time, Your Honor.

THE COURT: I'm going to admit the exhibits.

MR. TAIKEFF: Thank you, Your Honor.

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

THE COURT: Exhibit 96, 97, 98 and 103 are received.

Q (By Mr. Taikeff) I'm placing those exhibits before you, sir, placing closest to you Exhibit 97 and then next closest to you Exhibit 98 in evidence. Do you see another vehicle in 97?

A Yes, sir.

Q What vehicle is that?

A Well, it's a red vehicle.