VOLUME VIII

Pages 1447-1689

INTERROGATION OF WITNESS

Pages 1447-1449

{1450}

FRIDAY MORNING SESSION

March 25, 1977

3:45 o'clock, A.M.

(Whereupon, the following proceedings were had in chambers, the Judge and juror Jeffrey McClean present:)

THE COURT: I just want to tell you first of all that we're very sorry to hear about your father and I wanted to find out from you whether you felt you could continue as a juror.

MR. McCLEAN: I suppose I could but I really feel that I would rather be home right now.

THE COURT: When is the funeral going to be?

MR. McCLEAN: I'm not sure. There is a little talk last night about that it might be Monday being so close to the weekend.

THE COURT: I'm going to take it up with the lawyers in the case but I wanted to talk to you first to see how you felt about it. If you did decide that you wanted to continue as a juror, I would arrange for a marshal to take you home tonight. Of course, you'd have to come back, and take you home again tomorrow and on Sunday. If the funeral was Monday that would create a little bit of a problem because that would mean we'd have to recess the court and keep 13 other jurors idle at that time. But, as I said before, I'll make a decision in your case. I wanted to find out how you how you felt and that I will talk to the lawyers.

{1451}

The impression I get is you would continue but you would prefer not to.

MR. McLEAN: Yeah. Right.

THE COURT: Is that a correct statement of how you feel?

MR. McCLEAN: Yeah. Right.

THE COURT: Now do you have any questions?

MR. McCLEAN: No. Not that I can think of.

THE COURT: Well, I will meet with the lawyers and then I will advise you.

MR. McCLEAN: Okay.

THE COURT: As long as I know you would continue then, but you prefer not to, I can go on from there. It you did continue it would not affect, do you feel it would affect your jury service?

MR. McCLEAN: No. Not that I can see at this time.

THE COURT: Well, what I'm asking, do you think it would affect your ability to act as a juror in the case under the test that I reiterated so many times while we were picking a jury?

MR. McCLEAN: No. Not really. Not that I can think of.

THE COURT: I would have assumed that would be true but I wanted you to tell me whether you thought it would. Well, we'll let you know very soon.

{1452}

MR. McCLEAN: Okay.

THE COURT: Thank you for coming.

{1453}

FRIDAY MORNING SESSION

March 25, 1977

(Whereupon, the following proceedings were had and entered of record on Friday morning, March 25, 1977, at 9:00 o'clock, A.M., without the jury being present and the defendant being present in person:

THE COURT: Counsel approach the bench, please.

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

THE COURT: Yesterday afternoon the father of juror number twelve, Jeffrey McClean, was killed in a train-automobile accident. I instructed the marshal last night to take Mr. McClean to Jamestown for a visit, and bring him back, and he did.

I saw Mr. McClean in chambers this morning, with a court reporter, and I asked him if he would continue as a juror. He said that he would prefer not to, but he said that he would.

I asked him when the funeral was going to be. He said it had not yet been determined, but probably Monday. I told him that I would take it up with the lawyers, that if he was asked to continue that I would arrange to have a marshal take him home for a visit tonight, tomorrow and Sunday in the company of the marshal.

I asked him if he were to continue as a juror if he felt that it would, this would affect him ability to meet the duty of a juror as I have reiterated to them times during the {1454} selection process, and he said that he did not think it would.

Now, I would like for counsel to express their point of view on this situation.

MR. HULTMAN: Well, I would defer first, Your Honor, to the defendant as to any feelings because maybe I would agree with whatever, you know, whatever determination that would be.

MR. TAIKEFF: Subject to what Mr. Peltier may say on the subject, and I think this is the kind of thing we should consult with him about. I would say that under other circumstances I would not feel that the loss of a parent would make a juror ineligible to serve, or incapable of serving. But the one thing which Your Honor said that does concern me is that the juror said he would prefer not to. And I think that means his mind would be preoccupied to too great an extent with the situation; and if it was an accidental death rather than a natural passing, it's hard to imagine that he'd be able to keep his kind off that incident.

And I think he probably would, even though, make a conscious effort to do. Otherwise he would be distracted by the knowledge of what took place and his life, in his personal life.

I'm fairly certain that our position will be that he should be excused. But I think I owe it to Mr. Peltier to ask him about that.

{1455}

THE COURT: Yes. Please do.

MR. TAIKEFF: May I?

THE COURT: Yes.

(Defense counsel conferred with the defendant.)

{1456}

(Counsel confer.)

MR. TAIKEFF: May we approach the bench?

THE COURT: You may.

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

MR. TAIKEFF: Your Honor, as your Honor has noted, we discussed the matter with the Defendant for more than five minutes, possibly close to 10 minutes; and he is agreeable that it would be appropriate under the the circumstances to allow the juror to be excused.

MR. HULTMAN: The Government would join that application, your Honor.

THE COURT: Very well, I will excuse him.

MR. TAIKEFF: Thank you.

(Whereupon, the following proceedings were had in the courtroom, the Defendant being present:)

THE COURT: Would you ask Mr. Muir to come in, please?

Mr. Muir, would you approach the bench and will counsel return please?

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

THE COURT: Mr. Muir, would you advise Mr. McClean that he is excused from further jury service and will arrangements then be made to return him home?

MR. MUIR: Yes.

{1457}

THE COURT: Very well.

MR. MUIR: We came back last night in with his wife. She stayed some place. They have their car here.

THE COURT: So they have their own means of return?

MR. MUIR: That is correct.

THE COURT: Thank you.

(Whereupon, the following proceedings were had in the courtroom, the Defendant being present in person:)

THE COURT: Are counsel ready for the jury to be brought in?

MR. TAIKEFF: There is only one matter I would like to bring to your Honor's attention before that.

Yesterday at approximately 5:30 Mr. Crooks notified us that Myrtle Poor Bear, who up to that point had been and perhaps still is, in the custody of the Marshal in protective custody, was available for us to make inquiry of concerning the possible consent interview.

Mr. Crooks indicated to us that in his opinion she probably would not agree to such an interview, and he suggested that we undertake to question her at that time. We arranged for a court reporter to come with us to the Marshal's office, and when we arrived there, she was in the Marshal's private office. Mr. Warren, the Chief Deputy, and another Deputy Marshal, probably two -- I don't recall exactly -- were also present; and we asked Mr. {1458} Warren if he would allow us a moment alone with Myrtle Poor Bear so that we could make inquiry, and he said, "No," he would not; and then he said -- and I will try to quote him -- "Ask her the one question and get her answer."

Apparently Mr. Warren was fully apprised of the fact that she was going to be asked only one question, namely, "Do you want to speak with us?" And that her answer would be "No".

I am not certain how he knew that, but in any event I wanted to make sure that that matter was brought to your Honor's attention.

Anticipating the possibility that she would refuse consent interview and because Mr. Crooks indicated that once we had spoken with her, she would be released from protective custody, we secured a subpoena from Mr. Hanson requiring her appearance this morning at 9:00 a.m.

At the end of the confrontation with her, we asked Mr. Warren to serve that subpoena, which he did.

Now, I do not see her, and I am not certain to what extent she has complied with the subpoena or whether she is still in the Marshals custody. If she is, it is not necessary for her to wait here in the witness room. We made the subpoena returnable this morning so that the Court could continue some form of jurisdiction over her.

I am wondering if the Government would advise us as {1459} to her status. If she is in the Marshal's custody, then of course, we presume there will be no release from that custody until such time as we call her to the witness stand.

MR. CROOKS: Your Honor, could we approach the bench on this matter?

THE COURT: You may.

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

MR. CROOKS: Your Honor, because I am the one he was referring to, I would like to respond to this.

I don't know what the insinuation was supposed to be, insofar as the Marshal and myself is concerned; but so there is no question, the Marshal was advised that this witness had indicated that she didn't particularly want to talk to anybody including myself about this matter again, and that I had told her that in the judgment of the United States Attorneys office she probably would not be called now as a witness; and I advised Mr. Warren that, of her feelings, and advised him that she was in his custody and that he should be present to make sure that her rights were honored and that she was fully protected; and it seems to me that that was completely proper on the part of Mr. Warren, and I rather resent the implication that Mr. Warren was doing something improper. She was in protective custody, and that was the reason she was made available {1460} to them in the manner she was.

Insofar as her present status, I assume that we have not now released her from protective custody because of the subpoena that was served; but insofar as the Government is concerned, we have no particular further interest in her other than that she does remain available, and it is my understanding from Mr. Warren that they will make her available when she is called as a witness.

MR. TAIKEFF: That satisfies our needs, your Honor.

MR. CROOKS: She is just like any other witness. I don't think that she has any obligation to sit in their office or any other particular place. When she is wanted as a witness, the Marshal will make her available.

MR. LOWE: Let me add something which I learned last summer. It was my first contact with the Marshal's Protective Service Division, as they call it. They take the position that any time a witness says to them, "I no longer want protective custody," the witness -- it is not for the United States Attorney or the Court or anybody -- and then they will immediately release the person and relieve her of her presence, and do whatever else they need to do.

Our concern is that if this witness is taken somewhere in the protective custody status, California, South Dakota or Minnesota or wherever it might be, and at some point {1461} the witness says, "I no longer want to be in protective custody," we ought to have some notice to the Court, or the Marshals ought to at least bring her back here so she is here where she is pursuant to a subpoena, where we have some access if she is going to be called as a witness.

All we are asking for is some notice. We don't want to find ourselves without a witness. That's the situation.

MR. HULTMAN: Your Honor, could I also respond?

Mr. Lowe has correctly stated the posture, your Honor; and I would want that made very clear, and I say this in all good faith. I mean, she is here; and I believe she is still here. I haven't seen her or anything, but that was the intention, that she remain here until you had the opportunity to do the things you wanted; but I want to make it very clear, your Honor, that the Government cannot be responsible under the circumstances. As Mr. Lowe says, once a witness in protective custody -- because it is their decision in the first place, and it is their decision to revoke it.

Any time that she should desire, as of the time we are standing here right in this courtroom, right now, she no longer wants protective custody, at that point the Governments obligation is in no way to keep her. You would be the first ones here at the bench were it somebody else raising some problems.

{1462}

MR. TAIKEFF: That's exactly why we called the matter to your Honor's attention, so your Honor could have her produced and instruct her that she is subject to the jurisdiction of the Court and perhaps advise the Marshal's Service that there is an obligation to return her here rather than turn her loose.

MR. HULTMAN: They can't do that if she makes such decision. They can't keep her in custody. She is like any other witness, like the ones that I have had some problems and some difficulties with from that standpoint.

MR. TAIKEFF: In that case we would ask that she be held as a material witness and released on her own recognizance in the Marshal's custody; and thereafter on her own recognizance she be given an instruction that if she fails to appear she would be guilty of a Federal felony with five years' imprisonment. She is an important witness we are asking for.

MR. LOWE: Our concern is that normally a witness subpoenaed would remain until you call him. The Protective Service may not want to keep her in town. They may feel it would be more secure to take her to Minneapolis or Kansas City, where I think they took some last year. That would make the normal practice of a witness subpoenaed just being here so we can check on them every day. If they don't show up, at least we know they {1463} are not around. We have no way to keep track of her if she is in protective custody. We feel it is reasonable for the Marshal's Service to return her to the situs of her subpoena. We have no objection to the Marshal retaining her in protective custody; but if they decide they are not going to be responsible further, they should return her to the Court.

MR. HULTMAN: If the Court so ordered, it is a matter for the Court.

What I am saying clearly on the record, in no way can I be held responsible from the very beginning moment that a person in protective custody says, "As of now I am leaving." The Marshal at that time can do nothing unless there is some other type of order that gives the Marshal some authority to act, something other than that of being a witness in protective custody.

What I am saying, I want to make very clear, as of right now, and that's why the notice was given last night. I have tried to do that with every witness once a determination has clearly been made on the part of the Government, and I gave some more names this morning to counsel for the Defendant. Once we make a decision that the witness is not going to be called, there is no reason for me to call her, I have an obligation then to release that subpoena; and if it is somebody in protective custody, that doesn't {1464} change that status, but if that person makes a determination, there is no way in which the Marshal has authority from that point on to produce her anywhere or any time or under any circumstances.

That's what I want made clear, and that's why I think counsel has got to take whatever measures and means they wish to take in order to insure that the witness is available, your Honor. I am not going to be placed with that responsibility because it isn't mine at this particular time.

MR. LOWE: Let me advise you so you understand the context of this witness, that this witness has stated under oath in writing that she was an eyewitness.

MR. TAIKEFF: To the killing of the agents.

MR. LOWE: To the killing of the agents, not just in the area, she saw the agents shot and killed.

MR. TAIKEFF: Within 10 feet.

MR. LOWE: Within 10 or 20 feet. We believe by any definition she is a material witness. We would ask under these circumstances admittedly there is some lack of ability to control her.

MR. HULTMAN: As I was saying before --

MR. TAIKEFF: (Interrupting) She is an unstable person.

MR. LOWE: She is an unstable person also.

{1465}

We would ask your Honor to designate her as a material witness, to put her on her own recognizance, not asking she be locked up, she be advised of the consequences of failing to appear as a material witness upon call.

We have no objection to her being with the Marshals at an undesignated place as long as she could be produced if we need her, as long as she is in the Marshal's Service. If she is going to be in protective custody, we understand there are problems. We understand the material witness status would exist.

MR. HULTMAN: I am not encouraging any, I am sure you understand that.

MR. LOWE: Yes. I think this is a very important witness. She stated under oath she is an eyewitness. We would apply for that status, Judge. She is a very important witness.

MR. HULTMAN: I made the statement with reference to control, not in this case but in previous proceedings, it is argued and there is certain merit to it in that I would be the first one to agree that she is a very unstable person, and that's the part where I would vouch in normal circumstances with a normal witness that something might happen. There is nothing I would in any way try and guarantee with reference to this witness.

It is my understanding that, for example, somebody {1466} from the Wounded Knee Legal Offense-Defense has talked to her while she was in California just now immediately before she left. I have had fears that she would go off and not be available period; and I knew you were concerned about it in the last trial, of the availability; and very frankly, that's why we sought to get her in some type of measure where she would be available to whoever might want to talk to her. I will do everything I can to keep it in that status. I want the record clear as to what limitations are.

MR. LOWE: You would not oppose a material witness status?

MR. HULTMAN: No.

THE COURT: On the showing that has been made, it is ordered that Myrtle Poor Bear be retained as a material witness.

Counsel for the Defendant may submit a proposed order to the Court in accordance with the understanding that has been expressed here at the bench.

MR. LOWE: Thank you.

MR. TAIKEFF: Thank you, your Honor.

MR. LOWE: May we get that to you after lunch?

THE COURT: Yes.

{1467}

THE COURT: The jury may now be brought in.

MR. LOWE: May we approach the bench.

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

MR. LOWE: Your Honor, in an abundance of caution, Mr. Hultman and I both feel it would be advisable if we could have the marshal come to the side bar and have you instruct him until such time as we can prepare a written order to hold Miss Poor Bear in a material witness status and merely make sure she stays in the courthouse until Your Honor can deal with this matter officially. We both feel that would be wise.

THE COURT Who is the marshal that --

MR. CROOKS: Mr. Warren I talked to about her this morning and it's my understanding that he returned her to, I think, Valley City and she's still in their custody. My understanding is they were going to keep her in custody until further indication of whatever kind.

MR. LOWE: I have no objection to having her kept in Valley City. I think if the marshal is instructed to --

MR. HULTMAN: She may say, "I'm going to leave," and walk out right now.

MR. LOWE: Just so he relays to the deputies with her not to release her until further order of the Court until we can have a protective order.

{1468}

THE CLERK: I can phone Mr. Warren to come down, if you like.

THE COURT: This is in reference to Myrtle Poor Bear. The lawyers are agreed that if she should ask to be released from protective custody that she is to be, I have ordered and a written order will be prepared today, that she be held as a material witness without bond. So if she does ask to be released from protective custody, it is ordered that she be held at least until this order, the written order is in her hands, and you be guided by what is in the written order. They are concerned she might, if she asked to be released from protective custody she might take off. Defendants feel she is important to them.

MR. WARREN: Okay.

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

THE COURT The jurors perhaps are all aware of the fact that the father of juror number 12, Jeffrey McClean, his father was killed in an automobile-train, or motor vehicle train accident yesterday afternoon and he has been released from further duty on this jury. So we now have 12 jurors and one alternate remaining, and just to fill in the empty chair I will ask you, Mr. McKay, if you will take that chair and then for the rest of the trial occupy the chair that Mr. McClean had.

{1469}

MR. McKAY: Now?

THE COURT: Yes, please.

You may continue.

MR. HULTMAN: Plaintiff calls Norman Brown.

IF it please the Court.

THE COURT: You may proceed.

NORMAN BROWN,

being previously sworn testified further as follows:

DIRECT EXAMINATION CONTINUED

BY MR. HULTMAN:

Q And you understand that today as a witness that you are still in your renarl;s sworn on the pipe to tell the truth, do you understand that?

A Yeah.

Q And that what you did yesterday continues today?

A Yeah.

Q I want to go back to where we left off yesterday, and at that time I believe you indicated that there were certain people in certain places when you got to the area, the general vicinity of the green house, the little shed between and the white house, is that right? Do you recall that?

A Yeah.

Q Now I want to direct your attention again to Government's Exhibit No. 71. As I recall, one of the persons you indicated that was there when you arrived there was Norman Charles, is that right?

{1470}

A What?

Q Was Norman Charles one of the persons who was in this area when you got into the area yourself?

A Yeah.

Q Where we left off yesterday.

A Yeah.

Q Where was Norman as best you recall when you first saw time?

A He was at the white house.

Q At the white house. And that's the house that's been referred to here as the Jumping Bull house is that correct?

A Yeah.

Q And do you remember, did he have any weapon of some kind t that time?

A Yeah.

Q And would you describe it to the jury for us, please.

A Well, it was long rifle. Just a long rifle.

Q It was a long rifle of some kind.

Now you also indicated that there was another person here when you got there. Do you remember who that was?

A Mike.

Q And who is Mike? Mike who?

A Anderson.

Q Mike Anderson.

Where was Mike Anderson when you saw him when you {1471} arrived?

A By the white house.

Q He was also by the white house. And that's the same house you just talked about that's the Jumping Bull house, is that right?

A Yeah.

Q And you indicated that there was another person that you saw not in the area of the houses but in another part of the area down in an area which you circled with this "P" in the general area of the "P," is that right?

A Right.

Q Who was that?

A Leonard.

Q Now did the other person that was here at the -- pardon? Leonard was here?

A Yeah.

Q I want to take you back. The person you just referred to prior to Leonard, did he have a weapon of some kind at the white house?

A Who?

Q This second person. You indicated you saw two persons here. You talked about one of then having a weapon of some kind did you not?

A Yeah.

Q Did the second person have a weapon of any kind?

{1472}

A Yeah.

Q And who was that person?

A Mike.

Q Mike.

Now what kind of a weapon? Would you describe what the weapon was as it looked like as you best recall.

A I think it was a .22.

Q And was it a .22 that you also had?

A I think so.

Q Now you described that. What kind of a weapon did Leonard have?

A Well, when I, it looked like M-16.

Q And that was the weapon that you described for the jury a little earlier, is that right?

A Right.

Q I'm going to show you now that has been marked as an exhibit in this case and ask you at the time that you are now talking about and the person you are referring to and the actions that you described at the end of yesterday, was it a weapon of this general type and description?

A Yeah. Looked like that.

Q All right.

Now you indicated that one of those two persons also had a weapon that looked like a .22, is that correct?

A Right.

{1473}

Q And that you had a weapon Norman Brown l t 73 that you had earlier described, is that correct?

A Right.

Q And I'm going to show you now the weapon that has been introduced or marked as evidence in this case as 41A and ask you whether or not it was a weapon of this kind that you had at the time you're now testifying.

A That kind?

Q Yes. A weapon. Yes.

A Yeah.

Q Was the weapon that you saw in the hands of Mr. Anderson at that time, was it one of a general description of this kind?

A What do you mean?

Q Well, you said, I believe, you thought it was a .22, is that right?

A Yeah.

Q Did the .22 in any way resemble one like this in any way?

A No.

Q No. All right.

Was there anything else in particular about the one you had from the one he had as you recall?

A Well, mine had the scope.

Q Yours had the scope. Did his have the scope?

A I don't remember.

Q Is there anything else about Mr. Anderson's weapon that {1474} you do recall?

A Just a rifle.

Q Just a rifle. And a .22 you thought?

A Yeah. .22.

Q Now you said that just as you came to the hill that you were with another person, is that right?

A That's right.

Q And who was that?

A Joe.

Q And did Joe have a weapon of any kind at that time?

A Right.

Q And what kind of a weapon? Describe it to me.

A Well it was lever action (indicating).

Q All right.

A lever. And you made --

MR. HULTMAN: Let the record show that the witness made a signal in this direction (indicating).

Q (By Mr. Hultman) What else do you remember about that particular weapon that Joe had?

A It was a rifle.

Q And it was a rifle. Is there anything else you remember about it? Had you ever seen it before?

A Yeah.

Q And where had you seen it before?

A In the log cabin there.

Q You had seen it before here in the log cabin. The same {1475} place that you had seen the weapon that you have previously referred to that Mr. Peltier had at this time is that right?

A Say that again.

Q You saw it in the same place, the log house, which in earlier testimony you said that is likewise a place where you saw a weapon of the same kind and nature that Mr. Peltier had at this time?

A Yeah.

Q Now I'm going to show you what again has been marked as an exhibit in this case and ask you whether or not the weapon that Mr. Stuntz had was one of a general description of the same type as I'm now going to show you?

MR. HULTMAN: Let the record show I have in my hands Government Exhibit No. 32A.

Q (By Mr. Hultman) I want you, Norman, to look at this weapon and ask you whether or not the one that you have describe that Joe had was one of this general description?

A Yeah.

Q And wren you referred to a lever or a lever handle, is his what you were referring to?

A Right.

Q You said you had seen the weapon that he had before, is that correct?

A Yeah.

Q And you had seen it in the log house?

{1476}

A Right.

Q Now we've talked about the two people that were here when you arrived in the general vicinity of the white house. You've talked about Mr. Stuntz, you talked about Mr. Peltier. Was there anyone else other than the two men that you said you had split with and those two persons were who, as you recall?

A Bob and Dino.

Q Bob and Dino. You had split with them.

Were there any other people that you saw in the area that I have inscribed here, in this area (indicating)? Do you remember seeing anybody else?

A No.

Q At that time.

A No.

Q That's everyone?

A Yeah.

Q Is there --

A That's all I saw.

Q Is there any question in your mind about that at all, whether or not there was any other persons?

A Yeah.

MR. TAIKEFF: I have to object to the form of that question, Your Honor, as assuming a fact not in evidence. I think the witness said he did not see anyone.

{1477}

MR. HULTMAN: I will restate it and it's correct, Counsel.

THE COURT: Very well.

Q (By Mr. Hultman) My question to you, Norman, are there any other persons that you saw, there may have been people you didn't see, of course --

A Yeah. I saw Angie and Ivis.

Q The Long Visitors that you talked about. They didn't have any weapons with them of any kind, did they?

A No. No.

Q Were there any other persons at all that you can recall?

A No.

Q Now at the time that you said you saw Mr. Peltier and you described his actions and the type of weapon that he had and the shooting, did you see any other persons in the entire area that's represented here? Did you see any other people of any kind?

A Yeah. We were running, when we got to the houses, two FBI Agents started shooting at me and Joe.

Q Two FBI agents started shooting at you and Joe. Where were the two FBI agents?

{1478}

A (Indicating.)

Q All right. And would you point out on Government's Exhibit 71 where they were.

A (Indicating.)

MR. HULTMAN: Let the record show that, the witness has pointed out the area of Coler's car as it's represented in writing on Government's Exhibit No. 71.

Q (By Mr. Hultman) Now, would you tell us when it was, where you were when you saw the two agents first here in the area you've pointed out, where were you when you first saw them?

A I was right by that green house (indicating).

Q By the green house, and that's this house here (indicating); is that right?

A No.

Q You point out and you tell us, I don't mean to --

A (Indicating.)

Q Would you maybe stand up if you have to in order to actually touch the board.

A (Indicating.)

Q All right. You are showing the green house. And where, where around the green house were you as you best recall with relationship to the green house? Where were you?

A About right here (indicating}.

Q All right. You were somewhere between the green house and {1479} shed the shed. Is that the general area that you are pointing out?

A Right. Around that area.

Q Now, what were you doing at the moment that you saw the two individuals down in this area (indicating)? What were you doing when you first saw them?

A Well, when I first, when they come running we saw them. And I stood by that house ready for the shots, and I was going across. And they started shooting and, you know, I could hear the rounds go by. And that's when I started shooting back again.

Q All right. Now, would you describe what it was you saw here. Would you describe the scene that you observed in front of you for the jury. In other words, you tell the jury what it was you saw.

A Well, I saw there was, I saw two cars.

Q All right, you saw two cars.

Would you tell us where the cars were in terms of each then and how would you describe the two cars?

A Well, one was pointing, you know, south, and the other was pointing west.

Q All right. Would you come here and point with the pointer or us the direction that each of the cars were pointed, and let's start with one car and just talk about one car for a moment. Would you do that?

A (No response.)

Q Okay. Tell the jury one car, start with one car.

{1480}

A Well, this one was south, pointing south and north.

Q All right. So was it in a position, if this were to represent a car itself, was it pointed in generally the direction that that drawing is right now?

A Yeah.

Q All right. And was it in the general area or position that represented in this Government's Exhibit No. 71? Is that about how you would best recall it was?

A Yeah.

Q All right. Can you tell the jury anything more about that car. Do you remember anything about the car?

A The hood, the trunk hood was open.

Q All right. So that, which the direction you say was, it faced this direction; is that right?

A Yeah. The front was facing that way (indicating).

Q But the trunk hood was up, is that what you are saying?

A Yeah.

Q All right. Now, is there anything else you remember about car?

A There was an agent.

Q And where was the agent with relation to the car itself?

A He was behind that trunk hood.

Q He was behind the trunk hood of the car we are talking about?

A Yeah.

Q Would you describe, did he have a weapon of any kind?

{1481}

A Yeah.

Q And do you remember what it looked like?

A I think he had a handgun, or he had one than pumped, a rifle.

Q He had one that pumped?

A A rifle.

MR. HULTMAN: And let the record show that the witness gave a motion with his left hand like a movement of some kind.

Q (By Mr. Hultman) All right. Have you seen a gun, a pump gun before this particular time? Had you ever seen a pump gun?

A No.

Q Hadn't seen one?

A No.

Q All right. Have you seen one since of any kind, any time, anywhere?

A No.

Q All right. Now, so as you best recall then the man standing behind this car (indicating) was behind an open trunk, and he had a weapon that looked like he was pumping; is that a fair conclusion of what you've just said?

A Right.

Q Was there anything else that you remember about that car, that person, anything in particular?

A (No response.)

{1482}

Q If you don't, we'll move to the second car.

A I don't remember.

Q All right. Now, would you point out to the jury where the second car was with relationship to the car you've just talked about.

A Right there (indicating).

Q All right.

MR. HULTMAN: And let the record reflect that he pointed to a position that was to the left.

Q (By Mr. Hultman) Do you remember seeing any junked cars or abandoned cars that were in the area at all? Do you recall any junked or abandoned cars at all?

A You mean these here (indicating)?

Q Well, any where.

A Yeah. These here junked cars (indicating).

Q There were some junked cars.

MR. HULTMAN: And let the record show that the witness refers to a row of sis approximately objects in the area just to the West and a little south of the intersection which is marked with a "P".

Q (By Mr. Hultman) Do you remember any other junked cars of any kind?

A No.

Q All right. Now, tell us with relationship to the first car that was pointed generally in the direction that you were, {1483} is that a fair description by me of the hill?

A Yeah.

Q What direction was the vehicle, car pointed?

A West. He was pointing east, the front was pointing east.

Q All right. Would you, by taking the object that is here, and is just in the general shape longer than it is one direction to another, would you put it on the map and place it in the direction, or in the position that it was sitting as you best remember. This is the second car now we are talking about.

A (Indicating.)

Q Maybe we should put the first car first where you thought the first car was and that might help.

A Yeah (indicating).

Q All right. And then put the second car.

A Where's the front one?

Q Well, was the front of the car pointed toward the first car?

A Yeah.

Q All right. So that in other words you are saying as you put it here this is the front of the car; is that right?

A (No response.)

Q Nearest, or pointing in a general southerly direction?

A Yeah. It had to.

Q Now, what can you recall about that car, and anything about that car? Is there anything in particular that you remembered about the car?

{1484}

A It was shooting. There was an agent shooting.

Q There was an agent shooting.

Where was that agent?

A I think he was on this side (indicating).

Q All right.

MR. HULTMAN: Let the record show that the witness has pointed to the side which is away from the position where he was.

Q (By Mr. Hultman) The car was between you and the agent; is that right?

A Yeah.

Q All right. Now, did he have a weapon of some kind?

A Yeah. It was a handgun.

Q It was a handgun.

And could you see what position he had the handgun?

A Yeah. He'd get up and shoot some rounds and back down.

Q So you saw him shoot and then get back down; is that right

A Right.

Q Now, were there any other people now that you saw in the area other than the ones that you described up to this point? Do you remember any other persons, seeing any other persons in the area that is shown here as Government's Exhibit 71 up to this time?

A Did I see anybody in this area besides these two?

Q Yes.

{1485}

A No.

Q All right. Did you see anybody, any other people in the entire area that you were looking at, the scene you were looking at from up here in the place that you were located? Did you see any other persons?

A Well, after a while two cars came in.

Q All right. Now, would you show the jury where those cars came in on Government's Exhibit 71.

A Can I talk to my lawyer?

Q Oh, yes. Oh, yes.

MR. HULTMAN: Your Honor, the witness has requested an opportunity to visit with his lawyer.

THE COURT: Very well.

(Whereupon, the witness conferred with his counsel, Mr. Maring.)

Q (By Mr. Hultman) Now, Norman, I believe we were at the point where you indicated you now saw some other people somewhere; is that right?

A Right.

Q All right. Would you maybe, if you'd come over in this side so that the jury could see, and you point out on the map, Government's Exhibit 71, where it was now that you saw any other persons. And if you don't remember exactly, tell us as est you can where it was.

A I saw two cars coming in right here (indicating).

{1486}

MR. HULTMAN: And let the record show that the witness has indicated that two cars, he saw two cars coming in on an extension of the road that comes from Highway 18 past Jumping Bull Hall into the residences that we know as Wanda Siers; and the area he specifically is referring to is a, an area approximately the length of a pencil if you put one end of the pencil at the Siers' residence and left the rest of it in a generally northeasterly direction on the road that is there.

Q (By Mr. Hultman) Now, what is it then that, what is it that happened at that time?

A You mean right there (indicating)?

Q Yes. Tell us what it is you saw and observed.

A Well, I saw two cars were coming in. When they were coming in we started shooting at those two cars.

Q You say "we started shooting;" is that right?

A (No response.)

Q And who do you mean by "we"?

A Me and Norman Charles.

Q All right. Now, where were you and Norman at that time? Would you show the jury again on Government's Exhibit 71 where you were at that time.

A Yeah. I moved from here (indicating) to this white house the propane tanks.

Q All right.

{1487}

MR. HULTMAN: Let the record show that the witness now had moved from where he had indicated previously to a point near the Jumping Bull house near some propane tanks.

Q (By Mr. Hultman) Is that what I heard you say?

A Right.

Q All right. Where were those propane tanks with relationship to the Jumping Bull house?

A They wore on the east side of the house.

Q All right. Would you point out approximately where they were.

A (Indicating.)

Q All right.

MR. HULTMAN: Let the record show that he points to the east side of the Jumping Bull house.

Q (By Mr. Hultman) Were these tanks seemingly tanks that are up against a house and used somewhere in the house?

A Yeah.

Q All right. Now, where was the other person that you refer to at that time, the time you say, "We started shooting"?

A There was two cars. There were some people in there. I don't know how many people, though.

Q All right. And they were coming into the Jumping Bull area; is that right?

A Yeah.

Q All right. And how far, as you recall if you do, about {1488} where was it that she first car got, as far as it got?

A Right there (indicating).

Q All right. And let me make an "A" at that particular point where the witness has just marked a pencil "At" on Government's Exhibit No. 71.

The first car got to that point; is that right?

A Right.

Q All right. Now, where was the second car?

A Right there (indicating).

Q All right. And let me put a "B" at that point. In other words, one car was following the other, is that a fair conclusion on my part?

A Right.

Q All right. Now, at what point did you, when you referred to to "we," the two of you start firing at the two cars, "A" and "B"? Where were they when you started firing at them right where you pointed it out there?

A Well, right here (indicating).

Q little short of the point of where they stopped.

Now, describe what it was that then happened as far as the two cars.

A Well, started shooting at them. I think a couple of the tires. Then they moved back, they practically stopped and, and they moved back to about right here (indicating), somewhere around this area hero (indicating), and they were parked there.

{1489} And they got out and they started shooting at us.

Q All right. Where they finally parked, where was it with relationship to the Highway 18? Was it a long way from the highway, or a short way, or somewhere --

A You mean right here (indicating)?

Q Yes. I just want to find out generally.

That's generally where you think it was; is that right?

A Yeah. Around this area here (indicating).

Q All right. Somewhere in this area (indicating.)

I'm going to draw a circle.

A Yeah.

Q Now, could you continue to see all of those two cars?

A You mean from there (indicating)?

Q Yes. From where you were?

A Yes. I could see them.

Q You could still see them, all right.

How far away from the Siers' residence, or the house that you are talking about that they got up to in front of almost "A" and "B", how far away from it as you remember back your mind in the scene, how far away did the two cars back in distance from the house that was known as the Siers' residence? Could you give the jury an estimation of some kind?

A You mean how far they moved back here (indicating)?

Q Yes. How far did they move back?

{1490}

A About seventy-five yards.

Q All right. Approximately seventy-five yards?

A About, yeah.

Q All right. Now, what if anything then happened next? What do you remember next?

A As soon as we started shooting at them, shooting at us, we saw some more cars coming around, around this area where that highway is.

Q All right. You know the area generally, do you not?

A Yeah.

Q Is there another road or highway that comes around on the other side of the creek which would be below Government's Exhibit 71?

A Yeah.

Q And is it on the side of a hill somewhat the same height as this general area in here (indicating)?

A Yeah. I could, you could see the road from --

Q You could, all right.

A From around there, yeah.

Q You could look across the wooded land where the creek was over to where that road is and see it; is that right?

A Yeah.

Q All right. Now, what was it that you saw happening over here on the road, that's over on this side of the creek?

A Saw some agents. Well, we got out of the car and they {1491} started going across the field this way (indicating). They got out of the car. I think there was three or four of them got out of the car and started coming up this way (indicating).

Q So they got out of their car and they started coming towards your direction, is that a fair conclusion on my part?

A Yeah.

Q All right. Do you remember, do you know any of the houses or any of the people that lived across from the creek along that road that you are talking about?

A No.

Q You don't know any of them?

A No.

Q And did you know any buildings of any kind over there?

A Yeah. I think there's a couple houses back there somewhere.

Q All right. And were the men that you saw anywhere in the vicinity of any of those houses that you talked about? If you recall whether they were or they weren't.

A I don't know. I saw them get out of the car and they come this way (indicating).

Q All right. Now, you said that they were agents, and I want to ask you about that. Did you know at the time or is this something that you concluded at that time?

A You mean --

Q That they were agents?

A Yeah. At that time when I saw them, you know, people would {1492} tell me, you know, there's agents on Pine Ridge and there's goons. And when everything happened from then, you know, I thought it might be agents.

Q All right. So you thought they were agents, that's the point you are making?

A Yeah.

Q You didn't know of your own knowledge --

MR. TAIKEFF: Your Honor, I object to the repetition because the witness said ho thought they might have been agents. And it was made, the repetition was made in a