VOLUME IX

Pages 1690-1934

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MONDAY MORNING SESSION

March 28, 1977

Whereupon, the following proceedings were had and entered of record on Monday Morning, March 28, 1977 at 9:00 O'clock, A.M. without the jury being present and the defendant being present in person:

MR. TAIKEFF: Good morning, Your Honor.

THE COURT: Good morning.

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

THE COURT: You may.

MR. TAIKEFF: Your Honor, sometime last week arrangements were made between myself and Special Agent Biner for the production of the rifle with the telescopic sight that was supposedly used to identify Mr. Peltier from the distance of approximately a half a mile. He brought that telescopic sight to the office and we've made a tentative sighting out of the window of the courthouse. And then made no completely definite arrangements, but nevertheless general understanding was reached that some morning he would send that rifle and scope along with us to a place where we had measured off a half a mile so that we could conduct certain sighting tests.

I was informed on Friday I believe by Mr. Ellison that those arrangements were no longer to be made without the direction of the Court. So at this time if in fact that is the situation I would ask that Your Honor direct the Government to {1691} produce that rifle with scope because we have found a place where we have measured a half a mile with a clear view and we'd like to conduct a test there as soon as possible, sighting test.

MR. HULTMAN: Counsel, if you'll just indicate now when it is that you want to do it, I'll make sure somebody's available in order to accomplish it. I just want to make sure I got somebody available. That's all.

MR. TAIKEFF: At 12:30 this afternoon would be fine, Your Honor.

MR. HULTMAN: I assume we can do that at 12:30, Your Honor.

THE COURT: Well, then it's understood that this is a matter then that can be worked out with counsel?

MR. HULTMAN: Right.

THE COURT: So that there's no reason for the Court to act on it?

MR. HULTMAN: Right.

MR. TAIKEFF: Your Honor, then apparently I get the sense that there may have been some misunderstanding about whether the line of communication directly with Mr. Hultman were still open. I'll defer. I had a few other matters here on my list, I'll defer until Mr. Hultman and I have a chance to talk during the recess. And if we can work out the other things which I think have to be done it won't be necessary to involve {1692} the Court.

MR. HULTMAN: The only thing I want to make clear on the record is that I'm not going to go back and redo discovery that people already had the opportunity to make. That's my only point. If it's something within my capability right now, like with the scope, I'm willing to do it. But I'm not going to go back through, and I want it made very clear on the record, and go search documents that defendant has had in their possession from the very beginning.

And I just make that as a general statement because I think that time is long gone and it's within your own capability. But let's talk about whatever the specifics are. Go from there.

MR. TAIKEFF: All right. Thank you, Your Honor.

THE COURT: Is that all?

MR. TAIKEFF: Yes, sir.

MR. CROOKS: Your Honor, there is one other matter which should be brought up now. Our next witness to be called will be Mr. Ronald Hlvinka, a police officer in Milwaukee, Wisconsin, who will introduce and give testimony concerning an incident in which he was involved in in which charges arose against Mr. Peltier charging him with attempted murder. And those charges being outstanding at the time of the incident of June 26, 1975.

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Counsel has asked that we give them notice of the, or the Court notice prior to calling Mr. Hlvinka so that they can complete their record with regard to this matter. The matter has already been briefed by both sides extensively and I merely bring it to the Court's attention at this time. So if counsel wishes to make further comments out of the hearing of the jury they can, and then the United States will respond if there is a further record to be made by the defendant.

But it is our intention to call as our first witness Mr. Hlvinka.

THE COURT: Would you state for the record specifically what evidence you intend to elicit from this witness.

MR. CROOKS: Your Honor, basically the United States intends to elicit from Mr. Hlvinka and introduce there him copies of the Wisconsin warrant and the Federal UFAT warrant, unlawful flight warrant, as I believe the Court is fairly well aware from the briefs. Basically what happened in November of 1972 Mr. Hlvinka, an off-duty Milwaukee policeman, was assaulted y Mr. Peltier with a loaded pistol. Numerous appearances were had in Milwaukee. The matter was called for trial, Mr. Peltier jumped bond. Federal charges were then instituted for unlawful light to avoid prosecution.

All of these charges, both of these charges, were outstanding on June 26, 1975. Mr. Peltier was wanted therefore for a fugitive, or as a fugitive on at least two felonies at {1694} time. That principally will be offered to show the possible motive for the defendant reacting in the way he did when confronted by Special Agents Coler and Williams. We think it's vitally important to show the fugitive status for that purpose, and we think on the face of it the fact that he is in a fugitive status at the time that the agents come down looking for Jimmy Eagle is explanation of his actions, and it's further corroborated by testimony which we will introduce through the Canadian officials wherein a statement was made to one of the Royal Canadian Mounted Policeman that Mr. Peltier believed that he was the one that they were really after on June 26, 1975.

So it is tied together again by that matter. We further feel that we're entitled to show the circumstances of this incident to show a like and similar crime. Basically the evidence through Mr. Hlvinka will show an unprovoked attack upon an off-duty policeman. He will indicate that he did not know Mr. Peltier, had never seen him before, but he did recognize one of his companions as being an individual who he had seen in court associated with the case that he had been investigating, not as a defendant I believe but he had seen him there as a friend of an individual that he had arrested or was investigating.

We we think that in addition to showing the motive simply through the warrants themselves we are entitled to show that this was an unprovoked attack similar to the unprovoked {1695} attack which we have here. In other words, a deadly reaction to police officers. And this again goes to negative of the points which had been made again and again and again in this trial that there was some sort of a tortured self-defense; and also that it may have been some mistake.

We think that it goes directly to these two points that the very nature of the attack against Mr. Hlvinka is relevant to demonstrate and to negative the defense which have been tentatively offered and counsel have indicated an opening statement will be offered in this case.

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MR. LOWE: Your Honor, I don't know whether your Honor is entertaining full argument now. I think you were asking merely for an idea of what they intend to prove.

We vigorously oppose it. We filed a memorandum. We feel there ought to be a hearing out of the presence of the jury, I mean, at some point before the jury is brought in so we can have available at counsel table our papers.

We very strongly oppose this. We think we have all the law on our side, and we think the facts -- the Government cannot even prove what they are stating they want to prove with regard to this. I will say no more until your Honor sets up what procedure you want to follow.

THE COURT: Is this the next witness that you intend to call?

MR. CROOKS: Yes, your Honor, this would be the very next witness.

THE COURT: It seems to me it has to be resolved right now.

MR. LOWE: I would agree.

MR. CROOKS: That's why we brought it up right now, so we would not be calling the man in in the presence of the jury, if the Court deems otherwise.

MR. LOWE: Might I have 10 seconds to go into my office and get my file? I did not know they were going to call him this morning. I have some files sitting there. {1697} I will be right back.

THE COURT: You may.

(Mr. Lowe leaves the courtroom and returns.)

THE COURT: Before you proceed, Mr. Lowe, I would ask Mr. Crooks to state specifically the Rule that you feel under which this evidence can be admitted or should be admitted.

MR. CROOKS: Well, your Honor, the specific Rule would be 404(b), Crimes, Wrongs and Other Acts; and basically, as I said before, the principal thrust of our argument is simply the fact that these warrants are outstanding and were outstanding. He was a fugitive at the officers arrived -- it is vitally important to go to establish his state of mind, motive, intent, things of that nature, all of which are included under Rule 404(b); and that is the principal thrust of our argument.

The secondary thrust is that the very similarity of the acts is relevant to fill further the state of mind; but certainly the fact that the warrants were outstanding, the warrants were in full force and effect -- the Defendant obviously knew about it because he jumped bond on it -- is vitally important to show the state of mind of this Defendant when confronted by police officers in the immediate proximity; and the Court will recall the testimony was from Mr. Anderson that the red van, red and white van {1698} was being chased on the Jumping Bull property; and the evidence was that Mr. Peltier was driving it, which again shows, I think, it very clearly, his state of mind, that he would react with deadly force to avoid apprehension for the outstanding felony warrants.

THE COURT: Mr. Lowe.

MR. LOWE: Your Honor, we take as a starting point, Rule 404(b) of the Federal Rules of Evidence which is the only justification, if there be any at all, for such evidence to come in.

404(b) says: Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person, in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

Now, this is a major departure or a major difference between Rule 404(b) and Rule 403. Rule 403 is the balancing test between relevancy on the one hand and the possible prejudice caused by confusion, misleading, or prejudice because of the inflammatory nature of the evidence, the balancing test between probative value and possible prejudice.

Rule 403 involves evidence which is actually evidence {1699} in the case about the event that is on trial, that is to say, in the case, let's say, of the post-mortem photographs. Those were evidence of things involved in this case in this incident. The only question is whether they are so prejudicially as to require the Court to exercise discretion to exclude them. The presumption in Rule 403 is the general presumption of the Federal Rules of Evidence, that all evidence is competent relating to the case and comes in, generally speaking, unless there is a reason to keep it out, so Rule 403 has a sort of a presumption that the evidence will come in unless the Court in its discretion keeps it out.

The opposite is true of Rule 404(b). Rule 404(b) concerns evidence which is not a part of the case. It is not around the incident which is involved in the case itself, but is external, extrinsic, collateral evidence of other cases, other issues; and the presumption there is that evidence of other crimes is not admissible unless the Court, in the exercise of discretion, finds that it fits within other purposes for which it may be admissible, so the entire inertia is different.

In Rule 404(b) the presumption is that it stays out unless the Court lets it in, so the question in Rule 404(b) is whether it fits within the guidelines of allowing it in and whether the prejudice is so light, that is, that the {1700} Court finds that it is not prejudicial to the extent that the Court will allow it in.

The burden in Rule 403 is on the person who would keep the stuff out because presumptively evidence in the case is admissible so the burden in the case of the post-mortem photographs was on us to persuade you, the Court, that it was prejudicial.

In Rule 404(b) the other is true. The person wanting to bring it in has the burden of showing that there is no prejudice which outweighs the status quo of the Rule, the momentum of the Rule, which is to keep it out.

Now, turning for a moment to the facts, I would like to point out a couple of factual issues which are very important. Mr. Crooks has made an advocate statement. I have no doubt that Mr. Crooks in good faith thinks that that's what he would prove by Mr. Hlvinka.

However, I would point out that this involved an incident that occurred in Milwauke in a restaurant or a bar, and Mr. Hlvinka is going to claim that Mr. Peltier -- and in fact does claim in previous testimony, I believe, in a preliminary hearing, that he didn't know Mr. Peltier. I think he said he had never seen him before. He had no reason to know why Mr. Peltier would accost him. He made, as described by Mr. Hlvinka, as a virtually unprovoked, unexplainable attack. There is no evidence in that {1701} preliminary hearing -- and I vouch to the Court that as far as I know there is no evidence in existence, nor could there be produced here any evidence to show that Mr. Peltier knew or reasonably should have known that Mr. Hlvinka was in fact a police officer. He was in plain clothes. There were no badges, no identifying him by calling him Sergeant Hlvinka or Patrolman Hlvinka, as far as I am aware; and I would challenge the Government to make an offer of proof if they think they know of some.

There is no evidence Mr. Peltier knew he was a police officer. That would undermine the principal theory of the Government's offering this evidence, and that is to show that Mr. Peltier has made other unprovoked attacks on people he knew were police officers. That is a factual question that is very important.

Secondly, at this point in this trial there is no evidence that Mr. Peltier knew that Agents Coler or Williams were police officers. There is no evidence at this point that he knew that, and that would be a second reason because they can't even at this point assert, based on the evidence, that Mr. Peltier was making an attack on people that he knew at that time were police officers, so that destroys completely any link or connection to show motive or intent even if that were admissible for that purpose because there is no showing that he knew either {1702} one of them were police officers or that Officer Hlvinka was a police officer.

Further, I will vouch to the Court that there will be a substantial dispute in fact over what Officer Hlvinka said to him in Milwaukee. This would require in effect a mini-trial within this trial. Your Honor would be conducting an attempted murder trial in Milwaukee within this courtroom with all the plenteous witnesses and evidence in order to determine whether this particular episode would be admissible before the jury.

Even if your Honor in a hearing outside of the presence of the jury were to rule that a showing of sufficient certainty had been made by the Government, the defense would then be entitled to present the same evidence before the jury, having again a mini-trial, as it were, in front of the jury to dispute the purported explanation of what this event in Milwaukee showed.

Now, it is clear to us that the Government has a second purpose and they have explained this; and that is to show a reason for flight, that is to show that Mr. Peltier knew that there was a warrant outstanding for him from Milwaukee. We believe that that would not be admissible for that purpose.

However, to the extent that your Honor would rule that it would be, we would offer to stipulate that at the {1703} time, June 26, when this occurrence that we are dealing with in this courtroom took place, Mr. Peltier had outstanding against him, and knew that he had outstanding against him, a warrant for a serious felony in Wisconsin.

{1704}

And to stipulate that that was not only in existence but Mr. Peltier knew about it. If necessary also to stipulate that he had jumped bond there. We would offer that in the faith of an adverse ruling on the relevancy of that particular element of proof. We would offer to stipulate that.

Now how is that relevant to the argument I am making now? It is relevant in two ways: first, we have stated time and again neither party must accept the stipulation from the other side. That is conceded. That's certainly law. However, the case which the government relies on and really the only case which gives them any kind of support for introducing such prejudicial material is the Puff case which is cited by both parties in our respective briefs on this point. The Puff case particularly tries to cite here, is a second circuit case in 1954, had a very significant underpinning as to why the court allowed it and the court stated this at page 175, which is at page 8 of our brief, and I'm quoting: "Up to this time in the trial there has been no concession by the defense that the defendant at the time of the shooting knew that he was wanted for a felony, and as the judge pointed out, there was no way of bringing it home except to show that by reason of the acts by the defendant he knew and had reason to know he was on July 26, 1952 sought as a fugitive from justice.

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"It was not until the summation that it was conceded that the defendant entered the hall knowing he was wanted. It is highly likely that without this evidence, the concession would not have been made even then and even then it was not conceded that the defendant was wanted for a serious crime, a fact which would bear heavily on the issue of motive.

"On the question of whether the deceased was engaged in the performance of his official duties, counsel would have or could have conceded the fact, of course, many concessions could have been made but counsel did not choose to make them. It is urged that trial counsel offer to concede that the deceased was engaged when killed in the performance of his official duties, but the trial records show to the contrary.

"In the opening statement, the defense did not disclose an inclination to make any factual concession except as might be dictated by trial tactics. The court also observed that at that start of the trial the defendant had made two limited concessions: one, the deceased at the time he sustained the injuries from which he died was in fact an FBI employee; two, he died as a result of gunshot wounds inflicted upon him.

"The remarks of the court were followed by no further factual concessions and the defendant rested without {1706} making any."

In that case the government made an argument and the Court made a finding that there was no other way for the government to get this evidence which was proper before the jury and therefore that gave a justification for letting this highly prejudicial information in before the jury, because one of the problems which has been recognized, as recognized by Winstein On Evidence and other authorities is that the necessity of the government brining it in because they cannot prove this element by any other way as a factor which the court may properly consider in exercising its discretion to allow in otherwise inadmissible evidence.

Now in this case, that is why it is so significant that in the face of an adverse ruling as to the general relevancy of that Milwaukee incident at all, we are prepared to stipulate or concede that Mr. Peltier on June 26th did not have the existence of an outstanding warrant for a serious felony. That eliminates the entire rationale which Puff used because it is no longer unavailable to the government to prove or introduce to the jury the proof of the knowledge of an outstanding felony warrant to show why he might have acted in a certain way on June 26th. We feel that that is a very significant differential here and that is why in this case, although the government does not need to accept the stipulation, they cannot be heard to complain if they do not {1707} accept that stipulation and the court properly says the general testimony about the event in the bar in Milwaukee is not admissible. And there is no justification for changing that general presumption of inadmissibility for one of these other purposes.

We believe that the prejudice which will be involved because of having to try a mini-trial, a separate trial within this trial, is just incomparable.

Wigmore who is the great guru of evidence for all of us from back in our Anglo American juris prudence has stated the general reason why this type of evidence should not be let in when he stated, "The deep tendency of human nature to punish not because our victim is guilty this time but because he is a bad man and may as well be condemned now that he is caught and that is a tendency which cannot fail to operate with any jury in or out of court."

The point is that if the jury is told in gory detail about an allegation of an event in Milwaukee which is disputed but nonetheless the officer Hlvinka comes in and says, "Mr. Peltier aimed the gun at me, pulled the trigger and it clicked and it didn't go off, then he did it again and said, 'I'm going to kill you,' or words to that effect," that the jury, it's entirely possible and it's entirely too likely that the jury will think he may not have been guilty on June 26th but he was guilty of bad things in general and we might as well convict {1708} him this time and get him off the streets. That's the great danger of introducing other crimes evidence. That is why the Rules are set up in such a way to make it inadmissible unless it is found by the court to be admissible for these other purposes. That's why the Puff decision pointed out, I think it's fair for the court to say the Puff decision would have been the other way had the defense made the concession, had they stipulated the elements that the government is trying to prove. That is why in this case we believe we cannot allow into this case, at least we're willing to make the concessions over objection on general relevancy.

I would point out that there is a third factor which may not be as important as the others but which is nonetheless a significant question of law involved in the Milwaukee case. The gun that was used by Mr. Peltier allegedly in Milwaukee was functionally inoperative. It had a firing pin that would not function. I think I'm correct in saying it was broken off. But in any event, it would not fire the cartridges and I believe I'm correct, it didn't even make an impression on the cartridges in the gun.

I point out two things about that: first of all, the evidence would be that Mr. Peltier knew when he was carrying the gun that it was inoperative and you'd have a serious question of law as to actual impossibility as to whether Mr. Peltier can even be convicted of an attempted murder when he {1709} uses an instrumentality which is incapable of carrying out the act, which he knows is incapable of carrying out the act. That again would have to be tried as a mini-trial in front of this trial in front of the jury in order to reach a fair disposition of this issue.

If Your Honor allowed it to be taken before the jury, then as a matter of law we would have to object to the introduction of this evidence for all these reasons, and I think I said this, but I would vouch, Your Honor, there would be a dispute factually whether what officer Hlvinka said happened was all that happened or whether it was all that happened.

We believe the court must exercise its discretion, first must rule it's inadmissible because it is irrelevant generally because this was two and a half years prior to this incident. It is an isolated incident. There are no other incidents, I believe the government will show, prior to June 26th. This is not a series of incidents which is the general way of proving a predisposition, for example, to shoot at police officers, to show at least two or three. This is an isolated incident two and a half years earlier where there is no evidence that he knew he was a police officer at the time. There's no evidence at this point he knew these two men were police officers and so the only real rational basis for admitting it would be on the theory he knew there was a serious {1710} felony outstanding and this somehow made him a more desperate man. We are willing over your adverse ruling on relevancy, if that comes, to concede or stipulate he knew there was an outstanding serious felony warrant for him and, of course, he had jumped bond. The same would be true of the unlawful flight, if that's part of the stipulation.

For these reasons, Your Honor, we vigorously oppose admitting this and ask Your Honor to make rulings in conformity therewith.

I would not point out all, I am not going over the whole memorandum on file. I would adopt it by incorporation by referring to it. We believe there are other detailed explanations in our memorandum or brief which the court would want to consider before ruling.

{1711}

MR. CROOKS: Your Honor, if I might respond very briefly. It seems to me counsel again is doing the same thing that they've done repeatedly throughout this trial. They're offering to stipulate but not stipulating.

Counsel stands up and says, "We will offer to stipulate if we lose, then we'll offer to stipulate." And I think that's a rather absurd argument. But I think it's also more, even more absurd that counsel would stand up and argue that the fact that this man is wanted on two serious felony warrants when Agents Coler and Williams are down in the area and in the point of, at the point of apprehending him that the fact is not relevant to his state of mind. I can't believe that counsel said that because on the face of it that is extremely relevant to show what his state of mind was when confronted by police officers.

Also this is not an isolated case. Evidence will come in through the Oregon incident that the exact same thing happened. Again Mr. Peltier was confronted by police officers and he fired at them. We have now three incidents where he's done the same thing on each occasion and it seems to me that that speaks very clearly to his state of mind on June 26, 1975. That what we're talking about here is a man that every time he sees a police officer within his immediate proximity apparently takes a shot at the individual.

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Now, I won't go into our legal argument. I think that has been completely argued in our briefs. It seems to me that the outstanding, the nature of the outstanding warrants and so forth is vitally important to show the state of mind of this defendant when confronted by Special Agent Williams and Coler; and this again as I said ties up with the statement made by Mr. Peltier when arrested in Canada that he thought that was the reason they were there. He thought they were there to arrest him.

And so again I think it was something that was on his mind and something that we are entitled to show. And counsel offers to stipulate, and I am not sure that they would offer to stipulate to the extent that the United States would be willing to accept it. Basically what counsel is attempting to do by offering to stipulate is cut down their exposure on things that the United States is entitled to show. These are facts that happened and the United States had not intended to go in at great length in Mr. Hlvinka into all of the details of this crime. But we do think we're entitled to show in addition to that the warrants were outstanding, that it was an unprovoked thing on an off-duty policeman, and the general nature of what happened so that the jury can understand something about this man's state of mind which is the same state of mind found from the evidence thus far on June 26, {1713} 1975.

THE COURT: Specifically what are you planning to have this witness testify to relating to the incident?

MR. CROOKS: Well, basically, Your Honor, that as I had intended to go into the matter, would be first of all to introduce copies of the warrants themselves which were marked as Exhibit 8. Included within that would be the criminal complaint signed by Mr. Hlvinka which of course does contain a brief description of his version of the incident. The information filed by the county prosecutor attached to that, and I have not yet separated, but would be willing to are the docket entries which showed the failure to appear. We don't have any particular need for those or the bond itself.

We would assume that Mr. Hlvinka could testify orally that he did jump bond and did not appear. The next item in Exhibit 8 then would be basically the unlawful flight warrant which does have attached to it copies of the same Wisconsin papers which again we would be willing to take off. I have not done it to this date because it's part of the certificate. But I would be certainly willing to take that off because they would be duplicated.

But in addition to that we would offer to have Officer Hlvinka testify as to the unprovoked nature of the assault; that he was sitting with a friend after he had gotten off duty having a meal at approximately 12:00 o'clock, or {1714} shortly thereafter of that evening and Mr. Peltier -- and have him identify Mr. Peltier as being the man that stated certain words to him. Basically the words "you're not laughing now, are you," and an expletive used there. "And I'm going to kill you." And this happened immediately outside the restaurant.

He again stated, Mr. Peltier again stated, "I'm going to kill you," pulled the trigger on the revolver which was pointed at his head, or the pistol which was pointed at his head. The weapon misfired. Mr. Hlvinka and his friend jumped him, took the gun away. Found there was a loaded round in the cylinder read to fire. And that would be basically the extent of the testimony.

And those are I think facts that we're entitled to show for all of the purposes stated earlier.

MR. LOWE: May I just say, Mr. Crooks had a specific term which I understand to mean one thing and I may understand to mean another thing. Mr. Crooks, when you say "misfired" you don't mean that the cartridge misfired, you mean the weapon failed to strike the primer; isn't that all?

MR. CROOKS: What I mean is that this gun clicked and it didn't go off.

MR. LOWE: You are not indicating that the cartridge misfired and it just hit the primer and it didn't fire? There's no evidence of that.

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MR. CROOKS: I don't honestly know that, Your Honor. All I know is that the testimony will be from Mr. Hlvinka that the hammer was pulled back, the finger depressed, the hammer went forward and normally Mr. Hlvinka would have been a dead corpse on the sidewalk. I know that that will be his testimony.

But through the grace of God the thing did not go off and he was apprehended. Later lab examination indicated that the firing pin was defective and that the weapon would not fire. But to say that there was not an attempted murder I think is a little bit absurd. The circumstances will be shown. _

MR. LOWE: Well, maybe a little bit absurd, but it's a serious question of law. I only have three points to close my argument, Your Honor. First of all Mr. Crooks supports my argument by the total failure to make any offer of proof. As I stated I don't believe they can make an offer of proof that Mr. Peltier knew this was an off-duty police officer, and that's because they're trying to show some nexus between violence toward Mr. Peltier and violence towards law enforcement officers on another, and it's absolutely necessary as a foundation for that to show that he knew that Mr. Hlvinka was a police officer. Otherwise he might have been a butcher, or a tailor or a who knows what.

Number two, an absolute foundation even for showing {1716} the warrant outstanding to show that he was somehow motivated to flee because he thought he was about to be apprehended for an outstanding felony warrant, absolute foundation for that would be to show that Mr. Peltier knew that Special Agents Coler and Williams, or thought were law enforcement officers as opposed to goons who were just attacking their camp. Until such time and unless the Government shows some evidence, some rational basis for concluding that Mr. Peltier thought that they were law enforcement officers rather than just bushwhackers of some kind, they have not even established a foundation for introducing evidence of a warrant outstanding for a serious crime. Because otherwise he would have no reason to connect a couple of bushwhackers, a couple of goons of Dick Wilson's that's outstanding in Milwaukee, Wisconsin. There has been no factual showing to this point.

My third point is Mr. Crooks said, "Well, we probably wouldn't be willing to stipulate." All I'm saying is we've made an offer to stipulate in the face if you do make an adverse ruling to stipulate that Mr. Peltier knew that there was an outstanding warrant for a serious felony in Milwaukee.

Now, if Mr. Crooks thinks that there's something additional that would be required to be stipulated in order to complete that element I call upon him to tell the Court now whether we would be willing to make that additional stipulation.

MR. CROOKS: Well, Your Honor, again I'm confused by {1717} counsel. They're willing to stipulate, but they're not. To solve the impasse what counsel apparently wants to do is have it both ways. They lose the ruling and then maintain an appellate record and then they want to stipulate to cut down their exposure also. The United States at this time, to avoid any further problem on this area, will agree that we will not call Mr. Hlvinka if counsel will stipulate to the following facts: That, and without any ruling of the Court, it seems to me that they've got to make a choice if they're offering a stipulation. First of all, that Mr. Peltier was charged on November 22, 1972 with the attempted murder of Ronald Hlvinka.

That on or about July 30, 1974 Mr. Peltier jumped bond on that charge and his bond was forfeited.

Third, that on the 9th day of August, 1974 a federal felony warrant for unlawful flight to avoid prosecution was issued by the United States. And fourthly that this charges were still outstanding on June 26, 1975 and that the defendant was aware on that date that he was a fugitive from justice with regard to those charges.

If counsel is willing to stipulate that flat out, then we will not call Mr. Hlvinka. We will type an appropriate stipulation and read it to the record.

MR. LOWE: May we have just a second, Your Honor?

(Defense counsel conferred.)

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THE COURT: While counsel are conferring would you permit me to see the proposed exhibit?

MR. CROOKS: Surely, Your Honor.

MR. LOWE: When Your Honor is finished reading that I'll be prepared to respond.

THE COURT: You may proceed.

MR. LOWE: Let me respond first, Mr. Crooks misunderstands our position with regard to the stipulation. We are not trying, to have our cake and eat it too. We made two objections. The first is that this information would not be admissible at all, not because it's prejudicial but because it's not relevant. We believe that Your Honor, or that no foundation has been laid yet, namely to that he knew there were police officers, or FBI agents. That's our first objection, on relevancy and foundation. That is for the Rule 404 B, balancing test. That simply has to do with the ordinary relevancy arguments and foundation if Your Honor overrules us on that.

THE COURT: I might mention that I am prepared to rule on that. That on the basis of the testimony of specifically Michael Anderson I believe that the jury could find that the defendant knew that Coler and Williams were special agents of the FBI when they appeared the next morning. And the ruling of the Court is therefore that that is relevant.

MR. LOWE: So that you have ruled against us on the relevancy?

{1719}

THE COURT: I have ruled against you on the relevancy.

MR. LOWE: Fine, all right. That's all that was about.

Now, given your ruling there we are now addressing the question of prejudice and Rule 404 B on that. We are willing to make a stipulation in order to permit the Government, because of your rulings, to introduce what we think they're entitled to introduce under Rule 404 B.

We are willing to stipulate and to enter into a written stipulation, or do it in the open court with the defendant, however Your Honor wants, first that there was a warrant charging Mr. Peltier with the commission of a serious felony. And I think the date is July, 1972. I missed the date, in Milwaukee, Wisconsin.

Secondly, that on July 30, 1974 he, failed to appear and his bond was forfeited. Whatever language is required there of the specific terminology. I'm sure we can work that out without any problem.

Third, we, with regard to the unlawful flight to avoid prosecution warrant, I don't believe that there in fact Mr. Peltier knew that that warrant was outstanding. I don't know that that is a part of what the Government has offered and required to stipulate because factly I don't think they would even assert that they knew that Mr. Peltier knew about it. I think that they were talking about just stipulating that it was in existence and we have, we would, as a part of {1720} the stipulation, stipulate that the warrant was outstanding without stating whether or not Mr. Peltier knew about it.

Finally, that on June 26, 1975 he was aware that there was an outstanding warrant for serious felony in Milwaukee, Wisconsin for which he had failed to appear; and that he was in a status, I don't know whether the word fugitive has any significance, but certainly he knew that he was wanted in Milwaukee, Wisconsin pursuant to that serious felony warrant and the jumping of bond.

I will, to the extent that I can vouch to the Court, that Mr. Peltier did not know about the unlaw flight warrant, so I can't stipulate that he knew about it on June 26th. But we certainly have no objection to stipulating that it actually existed and was outstanding on June 26th.

Now, we fell that it is irrelevant as to what the nature of the serious felony was, whether it was attempted murder or sale of heroin or bank robbery, or whatever it was does not in any way change the nature of the state of mind with reference to a face to face confrontation with law enforcement officers and the desire to flee.

Serious felony is all that is necessary in that regard and it certainly is irrelevant in any event as to the name of the person against whom the felony was purportedly perpetrated. And that absolutely, whether the man's name was Hlvinka or Smith or Roosevelt wouldn't make any difference, and would not {1721} be an element of their proof under 404B that it would be relevant.

So we are certainly prepared to give them that, and to the extent that Your Honor has found that it would be relevant to show some reason why Mr. Peltier might react very badly at police officers or might even have a motive to neutralize them so that he cannot be captured, the stipulation we have offered gives the Government everything they're entitled to. It does not give them prejudicial information that they are not entitled to, and we don't think we are required to stipulate that.

Now, the Government doesn't have to accept our stipulation, I understand that. But in the Court making a decision as to whether a showing of necessity has been made by the Government to justify such a serious incursion in the general presumption against evidence of other crimes, we believe that our stipulation is of sufficient basis for Your Honor to rule that we have met it.

MR. CROOKS: Your Honor, I rise again on this matter. Mr. Lowe is attempting to play games on the thing.

He wanted to know what the United States was willing to accept by way of stipulation, and I told him very specifically on the record. I will not accept Mr. Lowe's modified version.

I think it's relevant to show what we have offered the warrants for. If Mr. Lowe wants a stipulation insofar as the {1722} Government agreeing to it basically he's going to agree to our version or none at all because we feel that the warrant should go in and we're prepared to go forward just as planned

{1723}

If Mr. Lowe apparently feels that by offering a stipulation I have conceded something, and I haven't, we are prepared to go forward and put the warrant in and do it just as we planned.

If Mr. Lowe is willing to accept my version of the stipulation, then we are willing to not call Mr. Hlvinka and not do it through the warrant, but we are not going to accept a cut-down version. Attempted murder is the charge . Attempted murder is what the warrant shows. I think we are entitled to show that, and we are also entitled to show the other things that were mentioned in my oral recitation; and I think we can show it through Mr. Hlvinka.

THE COURT: The Court will make a further ruling, and that is that it is relevant to show the nature of the offense, in other words, something more than a serious felony. A serious felony, for example, could be burglary. Attempted murder is considerably different than a burglary.

MR. LOWE: In the face of that ruling, your Honor, could we confer for a moment?

THE COURT: You may.

(Counsel and the Defendant confer.)

MR. LOWE: Your Honor, in the face of your last ruling, the Defendant will enter into the stipulation that {1724} on the date -- I don't recall the date Mr. Crooks stipulated to, July of '72, I think -- do you have the date there so I can state it correctly?

MR. CROOKS: The attempted murder charge was on November 22nd, 1972.

MR. LOWE: Thank you.

That on November 22nd, 1972, there was an attempted murder charge filed against Leonard Peltier in Milwaukee, Wisconsin; that on July 30, 1974, he failed to appear pursuant to the terms of his bond, and his bond was forfeited; that on August 9, 1974, a Federal unlawful flight to avoid prosecution warrant was issued, although there is no showing or stipulation as to whether Mr. Peltier knew about that or not; and on June 26th, 1975, Mr. Peltier was aware that he still had an outstanding warrant charging him with attempted murder in Milwaukee, Wisconsin, and whatever consequences there were in his having failed to appear in 1974, pursuant to his bond.

I believe that is the statement that I made before with the exception that over objection to your ruling we are adding the additional information that it was a warrant for attempted murder. I believe I have correctly stated it, and we would be willing to do that pursuant to my earlier discussion and subject, of course, to all of our objections, and reduce that to writing.

{1725}

THE COURT: The record is clear as to your objections .

MR. CROOKS: Your Honor, I think the stipulation must also include -- I am not sure that I specifically stated that earlier -- that the original warrant, the attempted murder warrant had been served on him in Wisconsin so that that would be clear from the stipulation to the jury, that he was fully aware and he appeared and jumped bond on it, but that that warrant had been served.

MR. LOWE: I thought that was implicit in what I said. We would certainly add additionally that we stipulate that the attempted murder warrant had been served on Mr. Peltier in Wisconsin, and he had been bonded pursuant to the warrant; and that it was pursuant to that warrant and that bond that he failed to appear in 1974.

MR. CROOKS: Well, your Honor, in view of that agreement, the United States would be willing to abide by its earlier statement that we would then not call Mr. Hlvinka.

However, two points should be made: No. 1, that we assume from this that the defense will not themselves go into the facts of this matter after Hlvinka has left. If they have any intention of doing that, then the United States would insist on going forward right now during the proper order; and I don't know whether they intend to, but if they intend to come in with any testimony which goes {1726} in the facts of that incident, then the United States will not feel bound in any way by our stipulation or offer to stipulate; and we will intend to go ahead and put Mr. Hlvinka on right now as planned, just so that's understood.

The second thing is that I don't know what Mr. Lowe specifically is referring to as to the wording of the fourth paragraph. Now, the wording that I dictated was that the Defendant knew -- well, basically the wording that I dictated earlier was that these warrants, speaking of both warrants -- and I would modify that to include only the attempted murder warrant -- I don't know that, and obviously we cannot establish, whether or not he actually knew of the outstanding nature of the flight act; but I would modify it, that the warrant for attempted murder was still outstanding on July 26th, 1975, and the Defendant knew that he was a fugitive from justice with regard to that charge on June 26th, 1975.

Now, if that is agreeable with Mr. Lowe, so that we don't get into a hassle later as to the wording, then we will concede to the stipulation.

MR. LOWE: Let me speak to the last point first. The term "fugitive from justice" may very well have some particular legal connotations, maybe a legal conclusion or statutory status even in Wisconsin, or perhaps in the Federal law. I don't know if it has any significance, and {1727} it is very unlikely; and I would think the Court would realize that Mr. Peltier or anybody who is not a law enforcement officer, would say, "Oh, my God, I am a fugitive from justice."

It is certainly clear that he knew these warrants were not satisfied, he was wanted under them. He had jumped his bond in Milwaukee, and that the Government may very well characterize that fairly as being a fugitive from justice.

I cannot stipulate Mr. Peltier knew that because in fact he never thought those thoughts. I don't think it is fair to ask for that stipulation. It is not his thought. It does not mean that the Government is not correct in characterizing it as that. They certainly would not be prevented from arguing he was a fugitive from justice. I don't see any purpose in stipulating that particular phraseology.

MR. CROOKS: This is the reason I raised it, your Honor. I want to know before we release Mr. Hlvinka: What wording are they willing to stipulate to with regard to the fourth paragraph? I don't want to get into a hassle after Mr. Hlvinka is gone, then we can't agree on the wording. I want that in the record so that I can get a copy of the reporter's notes and prepare something in accord with that; and I am asking Mr. Lowe to state what {1728} wording he is willing to accede to on the fourth paragraph; and if he will state that, I will then indicate whether or not the United States is also willing to accede to it.

MR. LOWE: I have already stated exactly in detail.

Will you let me finish? I sat there quietly and politely while you spoke for 20 minutes. I want to have an opportunity to say my piece.

We are willing to state in narrative form in any normal lay terms as to what the status is. All I am saying is I don't want to use "fugitive from justice", which may have some magic connotations. It is not a term Mr. Peltier would use or think. If we can work out now in open court or any time at a break what specific language in lay terms describes Mr. Peltier's state of mind, that he knew the warrant was outstanding, he knew he was being sought by police officers, that he knew if he was captured and they found out about it, he would be returned to Milwaukee for trial -- however they want to phrase it in ordinary simple, simple terms. We are not trying to play word games. We don't want word games played on us.

Going back to Mr. Crooks' first point, I certainly understand that the premise of entering into a stipulation to avoid Mr. Hlvinka testifying and so forth would be {1729} premised on the fact that we do not raise it in any form at any time; and that if we raise it -- and I vouch at this point we do not have position with regard to our defense, we don't know who the witnesses will be, we don't know whether we are going to rest at the end of the Government's case or put on a lot of evidence, much will depend on what the Government's case is, I think we know what we are going to do -- but if at some point we address the charges in Milwaukee, the Government will have a free rein to put on Mr. Hlvinka and anybody else. That is understood. I take no issue with it.

I am sure the Government would not want to release him from subpoena, but just simply tell him he probably will be needed. We have done that with many of our witnesses and with some of the FBI Agent witnesses already, in fact. That's quite understood. We take no issue with that.

As far as the wording on the fugitive status, as I say, we are willing to use any lay terms that Mr. Crooks wants to put out. I think I have made it clear on the record that we are not trying to play word games with what his state of mind was.

MR. CROOKS: Well, I think one further comment is warranted, your Honor. That is fine, that's why I wanted to make it clear, so that there is no question as to what {1730} we are putting in that stipulation. We will avoid the words, "fugitive from justice". We will prepare a stipulation along the line of what Mr. Lowe has indicated.

However, I think our position again should be stated, that we understand this stipulation to have laid to rest once and for all the Wisconsin incident; and the United States will object violently to any attempt by the defense through any means or method to go into the facts of this case.

If they have any intention of doing that, then we feel that we should not be bound at this time by any offer of stipulation, that we proceed to call Mr. Hlvinka in the normal order of proof and go into the facts; and it seems to me that counsel has stated -- that they are the ones that don't want this brought up, and it seems to me they have got to make a stipulation that they are not going into it any further, or they are. If they intend to go into it any further, then we are simply going to back off with what we have been discussing here and proceed as planned, assuming that the Court does not rule the matter relevant, because we are not going to want to leave that door open.

Counsel has been aware of this situation for a long, long time; and it seems to me that they have either got to fish or cut bait and decide if this stipulation as {1731} envisioned by the Government covers the Wisconsin incident and closes it, that's fine. We are willing to stipulate. If they want to play games again and leave it open and possibly go in and retry the thing themselves, then we prefer to do it right now as we originally planned to do.

THE COURT: I may just make a comment at this point. If the stipulation is entered into and if an effort were later made to go into the facts of this Milwaukee incident, it might very well result in opening up the factual allegations as set out in this complaint; and I would expect that counsel on both sides, if a stipulation is entered into, would just as soon leave that closed.

MR. LOWE: Could we have just a word?

(Counsel confer.)

MR. LOWE: Well, your Honor, you said it is our understanding as well, if the Defendant were to raise this issue at a later time in any way, that would open it up for the whole warrant to come in, all the documents to come in.

At this point, certainly from what I have read of them, it would be very undesirable and prejudicial. We understand that's the premise on which the stipulation is entered, that we would be imperiling the very prejudice we are talking about by mentioning or going into the facts of it. That would bring it all in later, so I think at {1732} this point we have no intention of right now going into -- that. It would require opening up the door intolerable prejudice in our judgment right now, so I don't think we have any anticipation of doing that at all.

MR. CROOKS: With that the United States will agree and accede to the stipulation, and prepare a written stipulation. I would ask the court reporter to furnish us with a copy of my remarks capsulizing the situation as well as Mr. Lowe's. We will then prepare an agreeable stipulation which we will then read to the jury in lieu of Mr. Hlvinka's testimony.

THE COURT: Very well. Now --

MR. CROOKS: (Interrupting) We would do this, of course, at a later time.

THE COURT: That was my question, as to whether it would require it to be done in order to have an orderly presentation of the evidence or whether it could be later.

MR. CROOKS: No. I don't believe it is necessary. I think Mr. Hlvinka would fit in now or also at a later time. We would prepare the written thing and bring it up at an appropriate time.

THE COURT: Very well.

Is there any problem with reference to the next witness that has to be resolved before he is called?

{1733}

MR. SIKMA: I don't believe so, Your Honor.

THE COURT: The jury may be brought back.

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

THE COURT: Members of the jury, I can, well, you know that you have been standing by for an hour and ten minutes and I can tell you that the reason you were standing by is because a legal matter was argued and I can further tell you that your time was not wasted because the resolution of that legal matter undoubtedly saved at least two or three hours of additional testimony that will not have to be presented. Even though you were not in the courtroom you were rendering a service.

MR. LOWE: May I have a word with Mr. Sikm?

THE COURT: You may.

MR. LOWE: May we approach the bench?

THE COURT: You may.

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

MR. LOWE: Your Honor, on one exhibit which will be relevant to this witness, it's a two twenty-three cartridge casing, there are some reasons why we feel that the stipulations with regard to chain of custody ought to be done in more specifics than we are generally doing, generally we have stipulated to chain of custody of cartridges and things {1734} like that without having them in testimony. This particular cartridge was found in the trunk of Coler's automobile and is of a little more significance than most of the others. I just told Mr. Sikma it wasn't until I read the three hundred materials that it might be better to do this. I think we can work out stipulations such as what different people in the links of chain of custody have called so they wont' have to call them all. But I think it would be better to do detailed stipulation on this item than just a general wave of the hand on chain of custody.

The reason I approached the bench, it would not necessarily be in sequence and we're not going to raise objections to having witnesses in the sequence they are calling them on, the understanding being simply by the end of their case we will be stipulation. There is already one or two other witnesses I think they plan to call who are involved in the link of the chain of custody and we will have a detailed record on what the chain was, or at least purported to be.

I wanted to explain to you so you'd understand without having to explain in open court what we're doing.

MR. SIKMA: I can state for the record this particular chain of custody, Hodge, Cunninghma, Hodge.

MR. LOWE: It may not be any problem at all. It's Exhibit 34B. I want you to understand it may be a little out {1735} of sequence and we're not going to object to that and we're not actually going to raise objections to foundation. We just understand that will be something that will be subject to eventual connection. That's all.

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

MR. SIKMA: The government calls Cortlandt Cunningham.

CORTLANDT CUNNINGHAM,

being first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. SIKMA:

Q Please tell the jury your name.

A Cortlandt Cunningham.

Q And what is your occupation?

A I'm a special agent of the FBI.

Q And where is your place of employment?

A I am assigned to the firearms and tool march units in Washington, D.C.

Q What's your position there?

A I am chief of firearms, tool march unit.

Q What was your occupation on the 27th of June, 1975?

A The same as it is today, sir.

Q And where were you on the 27th of June, 1975?

A I was in Pine Ridge, South Dakota.

Q And on June 27th did you have occasion to go to an area _ near Oglala, South Dakota, which is known as the Jumping Bull {1736} residences?

A Yes, sir.

Q And to what area did you particularly go on that residence or in that area?

A What we call tent city.

Q And what were you doing there on that date?

A First of all, I was assisting Special Agent Kelso destroy some explosives and then we went on from there to the tent city area.

Q I want to ask you a few questions. You're specially trained, are you not?

A Yes, sir.

Q And what is your special area of training?

A Firearms identification.

Q And in that particular regard did you have any special training?

A I did.

Q And what generally did that consist of?

A Upon entering the FBI laboratory, underwent an extensive training course under the supervision of experienced examiners in the field of firearms identification. This training consisted of making thousands of examinations and comparisons of bullets, cartridge cases and weapons and other related examinations. I've done extensive reading on the subject. I've conducted research on the subject and, of course, I've done {1737} thousands of examinations on my own.

Q Did part of your training include examining of vehicles and crime scenes to find pieces of evidence or things that are things of evidentiary nature?

A Yes. That's the main thing we do is handling of evidence.

Q You do this at the scene as well as in the laboratory?

A I have been called out; yes.

Q Now I would direct your attention once again to the 27th. You indicated on the 27th of June that you were in an area called tent city. While you were in that particular area, did you see any vehicles?

A Yes, sir.

Q And what were the vehicles which you observed in that particular area?

A I observed a Ford Galaxie and a red and white van.

Q I will show you what has been marked and is in evidence as Government Exhibit 55 and direct your attention to photograph C on page 11 and ask you whether you can identify that photograph.

A Yes, sir.

Q And what is that?

A That is the Ford Galaxie.

Q Is that the Galaxie which you observed in tent city?

A Yes, sir.

Q I would direct your attention to Government Exhibit 55, {1738} page 31, 32 and 33 and 34 and ask you whether or not you can recognize what is on those pages.

A Yes, sir, I can.

Q Now you spoke earlier of a red and white van. Tell me whether or not that's the same red and white van that you observed in tent city on the morning of the 27th?

A Yes, sir.

Q Now on the same exhibit, Government Exhibit 55, I would direct your attention to photograph F on page 37 and the photograph on page 38 as well as photographs on page 21 and 22.

A Yes, sir.

Q Do you recognize what is portrayed in those photographs? Would you tell me what it is?

A Two tires, sir.

Q And what are they in particular?

A They're two tires which were removed from the red and white van and the label on them says, "Special Agent, FBI, U.S. Courthouse, 260 Federal Building, 550 Ninth Street, Rapid City, South Dakota."

Q I will show you what's marked as Government Exhibit 49A and 49B for identification, after showing them to counsel for his inspection, and ask you whether or not these generally portray the same items as you have indicated in Government Exhibit 55?

A Yes.

Q And where did you find those particular items?

{1739}

A I observed them in the red and white van.

Q Do you know what they are specifically?

A They're two tires.

Q Do you know what the tags on the tires relate to?

A To the FBI.

MR. SIKMA: I would offer into evidence at this time, Your Honor, Government Exhibit 49A and 49B.

MR. LOWE: No objection, Your Honor.

THE COURT: Exhibits 49A and B are received.

Q (By Mr. Sikma) Now on the morning or part of the day of the 27th you were in the tent area, is that correct?

A Yes.

Q Now on the following day what did you do?

A I went to the BIA compound where I examined special Agent Williams' car.

Q Okay.

Would you tell the jury how it was that you made an examination of that car, how you went about making an examination of Special Agent Williams' bureau car?

A First I was being assisted by Special Agent Kelso also of the FBI laboratory and I personally made notes, drawings of all the entrances and exit holes that were obvious in the body of this vehicle. Then in a systematic examination of the car I along with Special Agent Kelso found evidence such as bullets and bullet fragments and other types of firearms evidence in {1740} this car.

Q I will show you what are marked for identification as Government's Exhibits 29F, 33F, 33K, 33G and 37B and I ask you to examine them.

{1741}

MR. LOWE: Your Honor, if Mr. Sikma will make a representation that these were items found by Mr. Cunningham on June 28th in Agent Williams' car and state what they are for the record, I believe we could probably just stipulate on those.

MR. SIKMA: I could do that, Your Honor, but I think that it would probably be just as quick for the special agent who examines them and is more familiar with them actually to tell where he found them. But other than that is there's no objection to that we would offer them into evidence at this time. Then he could, the witness could speak about them freely rather than going through the technical aspects of offering them into evidence.

MR. LOWE: We'll stipulate that they were receivable. There's no problem. We're just trying to save time if we can.

THE COURT: Would you restate the numbers again?

MR. SIKMA: Yes, Your Honor. Government Exhibit 29-F, 33-F, 33-K, 34-G and 37-B.

THE COURT: Exhibits 29-F, 33-F, 33-K, 34-G and 37-B are received.

Q (By Mr. Sikma) Okay. Would you look at these items and tell the jury what they are and where you found them.

A From inside the right rear door, two bullet fragments.

Q Do you know what -- okay. That was in Government Exhibit 2 9-F; {1742} is that correct?

A This is all 29-F.

Q Okay.

A From inside the left rear door again bullet fragments.

From inside the trunk, bullet and bullet fragments, several bullets, several fragments.

Q How many of them are there, do you know?

A Oh, there's one bullet, two bullets and then the rest are fragments.

Q When you look at these items would you explain to the jury which exhibit that you are looking at and also make it part --

A This is all 29-F.

Q Very well.

A From the floor of the back seat two bullets.

From under the hood a bullet fragment. Several bullet fragments.

From inside the left front door several bullet fragments.

From inside the front seat a bullet and several fragments. That is Exhibit 29-F.

Q Okay. I want to go on before you go into Government Exhibit 33-F and explain what you did with these items. Who was the next person to have custody of these items?

A I personally turned over these items in the FBI laboratory to Special Agent Evan Hodge.

{1743}

Q And what then did Special Agent Evan Hodge do with them?

A He made the actual examination of the evidence.

Q And what kind of examination was that generally?

A Firearms identification.

Q Now, you are in charge of the laboratory; is that correct?

A I'm in charge of the firearms tool march unit, yes.

Q And so you had assigned this to Special Agent Hodge to make this examination; is that correct?

A I did.

Q Okay. I direct your attention to Government Exhibit 33-F and ask you to do the same thing as to where you found the items contained in Government Exhibit 33-F and to explain to the jury what these items are.

A From inside the trunk a bullet.

From the floor of the back seat a bullet.

That is Government Exhibit 33-F.

Q Then I would direct your attention to Government Exhibit 33-K.

A On the floor by the left side of the front seat a bullet.

That is Government Exhibit 33-F.

Q Then I would direct your attention to Government Exhibit 34-G.

A From under the hood a bullet fragment.

From the floor of the backseat bullet fragments.

From inside the left front door a bullet fragment.

And that is Government Exhibit 34-G.

{1744}

Q Then I direct your attention to Government Exhibit 37-B.

A On the floor by the right front seat a bullet.

And that is Government Exhibit 37-B.

Q Now, all of these items were bullets or bullet fragments taken from Special Agent Williams' car; is that correct?

A That is correct.

Q Now, what you had instructed Special Agent Hodge to do then would be to examine these with known firearms; is that correct?

A Yes, sir.

Q And determine whether or not these projectiles or bullets bad been fired from a particular firearm?

A Yes, sir. That is firearms identification.

Q Now, I will show you what is marked as Government Exhibit 58 and it's already admitted into evidence and I ask you to examine the photographs in Government Exhibit 58 and tell me whether or not you recognize them and --

A I do.

Q And that is Special Agent Williams' car, is it not?

A Yes, sir.

Q And you conducted an examination of that vehicle counting the bullet holes and the entrance wound, or the entrance holes Ln the body of the vehicle; is that correct?

A That is correct.

Q Okay. Did you make a record or keep track of the number of

{1745} bullet holes in the direction generally which these bullets entered from?

A Yes, sir, I did.

Q Okay. Would you explain to the jury first of all on Special Agent Williams' car what side did most of the bullets enter?

A On the left side.

Q Okay. How did you make the examination?

A Visually.

Q Okay. And did you do it one panel at a time?

A Yes, sir, I did.

Q Okay. Would you tell the jury in your examination of this vehicle what you found as far as where the bullet holes were in car specifically and how many bullet holes there were entering the vehicle.

A In the left rear fender on that vehicle there were at least sixteen entrance holes.

In the left rear door there were at least eight entrance holes. In the left front door there were at least twenty entrance holes.

In the left front fender there were eleven entrance holes.

In the hood and windshield there were at least twelve entrance holes.

{1746}

In the front there were at least four entrance holes.

In the roof and rear area there were at least three entrance holes.

In the right front door there was one entrance -- at least one entrance hole.

In the right rear door and post I found no entrance holes. And in the right rear fender I found no entrance holes.

Q When you examined that vehicle you found almost all of the, or the most number of entrance holes, bullet holes in the left side; is that correct?

A Yes, sir. At least seventy-four entrance holes in the left side.

Q Now, I would direct your attention to the following day, June 29, 1975. Can you tell me where you were on that day?

A I was at the Fall River County Garage in Hot Springs, South Dakota.

Q And what were you doing there?

A I was examining Special Agent Coler's car along with Special Agent Kelso.

Q And is it fair to state that you conducted the same type of examination of Special Agent Coler's car that you conducted on Special Agent Williams' vehicle?

A I did.

Q I will show you what have been marked as Government Exhibits 29-G, 33-J and 35-B after showing them to defense counsel

{1747}

(Government counsel showing exhibits to defense counsel.)

MR. SIKMA: And again does counsel have any objection to these?

MR. LOWE: No objection to their being entered except as we've discussed previously on Exhibit 34-B, I think we have some specific things on that.

MR. SIKMA: Yes. That is not a part of these. They were not found by this particular witness.

MR. LOWE: All right.

THE COURT: Would you state the numbers again?

MR. SIKMA: 29-G, 33-J and 35-B.

THE COURT: 29-G, 33-J, 35-B are received.

Q (By Mr. Sikma) I would ask you to examine those and as you did with the items, bullets which were found in Special Agent Williams' car, would you advise the jury what you found in Special Agent Coler's car.

A On the frame on the right side of this vehicle I found a bullet fragment.

On the back of the front seat again a bullet fragment.

From beside the radiator a bullet. From the radiator a bullet.

And that is Government Exhibit 29-G.

Q Okay. Then I would direct your attention to Government Exhibit 33-J.

{1748}

A A bullet fragment.

From the rear of the front seat a bullet fragment.

Back seat, on the floor of the back seat several bullet fragments and what appears to be a piece of buckshot.

From the deck behind the back seat a bullet fragment.

And that is Exhibit 33-J.

And Exhibit, Government 35-B, from the front seat a cartridge case.

Q And what kind of cartridge casing is that, if you know?

A It's a Winchester Western cartridge case.

Q Now, that was in the vehicle itself?

A Yes, sir, it was.

Q Okay. Do you know what caliber that is?

A 38 Special.

Q Now, I will show you what is Government Exhibit 57 and I ask you to look at the photographs in Exhibit 57. If you would just page through that exhibit for a moment and tell me if that, you recognize that as Special Agent Coler's car, if that's the same car that you examined on the 29th of June at Hot Springs, South Dakota?

A I did.

Q Would you tell the jury, if you would, as you did with Special Agent Williams' car the results of your examination of that vehicle as far as the bullet holes and the entrance bullet holes.

{1749}

A There were at least three entrance holes in the left front door.

THE COURT: Excuse me. You stated Williams' car.

THE WITNESS: Coler.

MR. SIKMA: Coler's car, thank you, Your Honor.

A From the hood and windshield area of this car there were at least fifteen entrance holes.

The right front fender, one entrance hole.

From the front grille area, two entrance holes.

The right front door there, where there was at least one entrance hole.

From the right rear door there were at least two entrance holes.

{1750}

From the trunk of this car there were at least 10 entrance holes.

Q Now, I want to ask you a question, if I may, just a moment, about the entrance holes in the trunk.

What direction were these bullets coming from that entered the trunk?

A From right on the front of the vehicle.

Q O.k., and were they coming -- if the trunk were closed, what direction would they be coming from?

A They would be coming -- if the trunk were closed, they would be coming from above and to the right of the front of the vehicle.

Q So in other words, unless someone was straight above the car and slightly to the right --

A (Interrupting) No, sir (indicating). If the trunk is closed, the shots came from above the car, from the right front.

Q Now, if the trunk lid were open?

A If the trunk lid's open at the time that it was struck, then it would be at approximately ground level.

(Counsel confer.)

Q (By Mr. Sikma) This car as shown on Government Exhibit 71, if the car were in this position, can you see, Mr. Cunningham?

A Yes, sir.

Q This is a car, car facing in this direction (indicating)

{1751} toward the area which is indicated as a green house; if the car were in that direction, and the trunk were open, then the bullet holes, you say, would be coming from the right, slightly to the right and to the front?

A Yes. The amount of the round definitely coming from the right, from the front towards the rear of the vehicle.

MR. LOWE: May the record show that the direction of the car indicated by Mr. Sikma was due east, perhaps very slightly to the southeast of east, so that there is no confusion in the record as to the direction being pointed out.

MR. SIKMA: Pointing, I believe, toward the green house, if the line were drawn from the front to the back of the vehicle would be straight toward the green house.

MR. LOWE: Yes. You agree it is generally east or east to southeast?

MR. SIKMA: Yes.

THE COURT: The record may so show.

Q (By Mr. Sikma) You have indicated that there were 10 entrance holes in Special Agent Coler's trunk, is that correct?

A Yes, the trunk lid.

Q Now, on the right rear fender?

A There were three entrance holes, at least three entrance holes.

Q Do you know what direction these bullets came from?

{1752}

A No, sir. I didn't make any note as to that.

I am sorry, there were at least four entrance holes in the right rear fender.

Q O.k., and you examined the roof, is that correct?

A Yes, sir.

Q And how many entrance holes did you find in the roof?

A Three.

Q And what direction were these bullet holes?

A Generally they were the same as in the trunk lid.

Q And that would be slightly to the front, right?

A From the front and slightly to the right, yes, sir.

Q O.k., and at about ground level?

A I can't tell that, sir. In other words, that they were entrance holes in the roof.

Q Now, what were the total number of entrance holes in Special Agent Coler's car?

A There were at least 41 entrance holes.

Q And the total in Special Agent Williams' car?

A There were a total of 75, at least 75.

Q That would be over 116, at least over 116 in both cars?

A Yes, sir.

Q Now, you say "at least". Why do you say "at least"?

A Because most of the windows were broken out. I would have no way of knowing how many bullets passed through the windows.

Q Then in addition to this, I take it that there were some

{1753} ricochet marks in the vehicles as well, is that correct?

A Yes, I found some.

Q Do you know how many you found?

A In Coler's car I found eight ricochets, and in Williams' car I found one ricochet.

Q I would direct your attention to the following day, June 30th, 1975. Where were you on that day?

A I was in the BIA compound at Pine Ridge, South Dakota.

Q And did you have occasion to make an examination of any vehicles on that day?

A I did.

Q And what kind of vehicles did you examine on that day?

A I examined a Ford Galaxy and a red and white van.

Q Now, the Ford Galaxy that you examined and the red and white van, were those the vehicles which you indicated earlier that you saw in the Tent City area?

A Yes, sir.

Q On the 27th, is that correct?

A Yes.

Q I would like to show you, after showing defense counsel, Government Exhibits 33-D, 34-C, 37-D and 47-A for identification.

(Counsel examine documents.)

(Counsel confer.)

MR. SIKMA: May we approach the bench?

THE COURT: You may.

{1754}

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

MR. LOWE: We have previously indicated that we object to the entry of Exhibit 47-A on the grounds of prejudice -- well, first on the grounds of relevancy, but on the ground of prejudice which outweighs probative value.

I believe that the only valid basis for introducing that is because there were some fingerprints on it. Certainly, at least, it is true that there were fingerprints identified on the manual. We are prepared to stipulate as to the fact that one or more books were found in the area with the fingerprints of Mr. Peltier or Mr. Robideau and Mr. Butler, or whoever they may want to offer in terms of the fingerprint identification. We will concede that or stipulate that because we feel that the introduction of a gun manual or a reloading manual or a bullets manual is so prejudicial and so without -- so absent of probative value of its own right as to call for a prevention of its introduction under Rule 403. Certainly it is proper for the Government to introduce the fingerprint information, then we will stipulate to that.

MR. SIKMA: Your Honor, we think that it does have some probative value. In addition to the fact that the fingerprints were found there, I think that it is important as it relates to the activities concerning firearms in the {1755} tent area, tends to rebut the Defendant's arguments with regard to the purpose of the tent area. It, therefore, relates to state of mind.

In addition to this, I believe that it does show some greater knowledge of firearms than a mere passing knowledge I of firearms; and I would state that for these reasons I believe that it is relevant to the state of mind of the individuals.

Certainly, I suppose that it is arguable, and the Defendants may argue this, that a lot of people have reloading manuals, firearms manuals and so forth. However I think that it can also be argued that there are other reasons for having a Sierra bullet reloading manual in the tent area; and it does go to refute the indication that it was merely a place where people met for religious purposes.

THE COURT: The objection is overruled.

MR. LOWE: All right, sir.

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

MR. SIKMA: Once again I will show you Government Exhibit 33-D, 34-C, 37-D and 47-A; and I would also ask of defense counsel, if there is no objection, I would move for their admittance into evidence at this time.

MR. LOWE: I believe that's the same situation, your

{1756} Honor.

THE COURT: Very well. Subject to the record that has been made, 33-D, 34-C, 37-D and 47-A are received in evidence.

(Plaintiff's Exhibits Nos. 33-D, 34-C, 37-D and 47-A, respectively, having been previously duly marked for identification, so offered in evidence, were received.)

MR. LOWE: Could I have those numbers again?

MR. SIKMA: 33-D as in "Delta", 34-C as in "Charlie", 37-D as in "Delta", and 47-A.

MR. LOWE: Thank you.

A Government Exhibit 33-D consists of 15 .44 magnum cartridge cases.

Q (By Mr. Sikma) And what kind are these?

A They are six Remington Peters and nine Winchester Western.

Q And what caliber are they?

A .44 magnum.

Q And where were they found?

A All of these exhibits were found in the 1967 Ford Galaxy.

Q All right. I would then direct your attention to Government Exhibit 34-C.

A 34-C consists of 2.23 Remington cartridge cases, one Lake City, 12 Winchester Western, and 22 Remington Peters.

Q And what caliber are these?

A They are all 2.23 Remington caliber.

{1757}

Q And they also were found in the 1967 Ford Galaxy, is that correct?

A That is correct.

Q O.k. I direct your attention to Government Exhibit 37-D.

A This exhibit consists of 3.45 auto cartridge cases of Winchester Western manufacture.

Q And I direct your attention to 47-A.

A Yes.

Q What is that?

A That is a reloading manual put out by Sierra.

Q What is that -- are you familiar with that manual?

A Yes, sir.

Q And what is it?

A It is a manual. Anybody who reloads ammunition will have a reloading manual of some manufacturer, one of the reloading component manufacturers.

Q Is this a complete manual?

A I haven't looked it over, but I imagine it is a complete reloading manual.

Q Would you?

A (Examining).

Q And it would have information in it concerning the reloading of cartridge casings, is that true?

A Yes, various -- each cartridge designation. In other words we are dealing with, for instance, .30 caliber, .30 aught 6,

{1758} .30 Remington, Winchester, all .30 caliber cartridges. Each one is loaded a little bit differently.

Q Thank you. Would you take out Government Exhibit 34-C, and show the jury, if you can from that, what a cartridge casing is, and how that would be reloaded, if you can tell?

A Starting with a once fired cartridge case --

Q (Interrupting) Now, wait. That is a -- what caliber is that?

A That's .44 magnum.

Q O.k.

A Starting with a once fired cartridge case, you would have a die which would resist the case as well as push out the old primer. You would then reprime the case and excise it, load it with powder and put in a new bullet and crimp the bullet in the case; and when you are finished with that operation, you have a completely new cartridge ready to be fired.

Q Now, would you show the jury what a 2.23 looks like?

A That is a 2.23 cartridge case (indicating).

Q Do you know what the velocity of a 2.23 round is, such as that, if it were loaded properly?

A You mean commercially loaded?

Q Yes.

A Approximately thirty-two hundred feet per second.

Q Is that a high velocity or low velocity, or well, medium, or how would you characterize it?

{1759}

A It is a high velocity cartridge.

Q What about the .44, what is the velocity of that?

A It all depends whether it has been fired in a revolver or in a shoulder weapon.

Q If it is fired in a shoulder weapon, what is the velocity of it?

A It would probably be up around eighteen hundred feet per second.

Q Is that high or low?

A For a rifle, that's low velocity.

Q And what about -- look at 37-D, and tell the jury what kind of a cartridge casing that is.

A That's a .45 auto.

Q What kind of a -- what is the velocity of that particular projectile if it was fired out of a commercially loaded cartridge case?

A Well again, it all depends on whether it is being fired in a handgun or in a shoulder weapon.

Q O.k. Let's say in -- are you familiar with the Commando Mark III?

A I am.

Q O.k. If it were fired from that kind of weapon, what would your estimate be?

A I do not know for sure. However, it would be probably over a thousand feet per second.

{1760}

Q O.k., and that again would be a low velocity?

A Yes.

Q When you examine bullet holes, what is it that makes the size of the entrance hole, does the velocity of the round have anything to do with that?

A Yes. It can affect the hole, yes, sir.

Q And would you explain that for the jury, please?

A Well, as a bullet passes through, pressure builds up in front of the bullet, close to the metal, It goes through the metal forming a crater-like form of the metal; and the higher the velocity, usually really the hole is larger than the projectile. The lower the velocity, you seem to come closer to the exact size of the projectile.

Q Then in a very, very high velocity, like the 2.23, the hole made by the entrance of the bullet would be much larger than the normal .22 caliber?

{1761}

A It would be larger; yes.

Q Do you know on a regular rim fire, .22 rim fire what the muzzle velocity is?

A Approximately; yes, sir.

Q What about approximately is that?

A In the long rifles approximately 1350 per second.

Q Those are relatively slow compared to the .223?

A Very much so; yes.

Q About, well, a little more than one-third, is that correct

A Yes, sir.

Q Now in a .223, do you have any idea what the size of the entrance wound, or entrance hole would be as compared with an M1, 30-06?

MR. LOWE: Objection to the form of the question. Your Honor. I think it gives insufficient facts upon which a witness can base an answer. It has to be stated whether it's going through metal or wood or cloth or what it's going through.

THE COURT: Sustained.

Q (By Mr. Sikma) We're speaking here of metal in vehicles which you examined. Can you make a comparison between the size of the hole that would be made by a 30-06 fired from an M1 and the .223?

A It would be smaller.

Q It would be smaller. How about a .44 magnum?

{1762}

A It would be larger than both of them.

MR. LOWE: Your Honor, I think there's confusion as to what he's answering, "It would be smaller." I wonder if he could clarify which would be smaller than which.

A The hole produced by the .223 Remington and a 30-06 would be smaller than those produced by a .44 magnum.

Q (By Mr. Sikma) I want to direct your attention to the same date, June 30, 1975. On that date you indicated in addition to making an examination of the 1967 Ford Galaxie you also examined a red and white van, is that correct?

A I did.

Q I will show you what has been marked for identification as Government Exhibit 33E, 34D, 37E and 69C.

THE COURT: The Court is in recess until 11:35.

(Recess taken.)

THE COURT: Is Counsel ready for the jury?

MR. LOWE: We are, Your Honor.

THE COURT: Government ready for the jury?

MR. SIKMA: Yes, Your Honor.

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

MR. LOWE: Your Honor, I believe at the conclusion when we broke the question of Exhibits 33E, 34D, 37E and 69C was raised. As to Exhibits 33E, 37E and 69C, we would stipulate to their admission. As to Exhibit 34D, we feel that probably

{1763} we just ought to go through with the normal procedure on that. I don't know there's any particular problem on it but we would prefer at this point not to stipulate that into admission

THE COURT: 33E, 37E and 69C are received.

Q (By Mr. Sikma) I would first of all show you Government Exhibit 33E, 37E and 69C and ask you if you would tell the jury where it was you found these particular items.

A These particular items were removed from a red and white van in Pine Ridge Compound, BIA compound in Pine Ridge, South Dakota.

Q And that is a red and white van that you observed in the tent city area, is that correct?

A Yes.

Q And when you examined that particular van, had someone else additionally made examinations of this van as to items other than firearms identification examination and search for cartridge casings and so forth?

A Yes, sir.

Q And had you seen the van with those types of items, with those other items in the van?

A The van. I saw the van prior to, before anybody went inside of it; yes, sir.

Q What kind of items did it have in it in addition to the things that you've mentioned here?

A Well, so very numerous. It did have some radio equipment,

{1764}

two tires and numerous other items, clothing, one thing and another.

Q I'll show you pages 35, 36 and 37 of Government Exhibit 55 and ask you whether or not these items appear to be similar to the items found in the van?

A Yes. I remember seeing the radio equipment.

Q I'd ask you also to turn the page and look on the following page which is page 36 and 37. Does that look familiar to you?

A Yes, sir.

Q Now I will show you what is marked as Government Exhibit 34D and ask you to examine Government Exhibit 34D, first of all, and tell me what that is and if you can tell where you found it.

A Yes, sir. I found it in the red and white van, the .223 Remington caliber Winchester Western cartridge case.

Q Now what did you do specifically with that item after you found it?

A I packaged all of the items and turned them into the evidence room at Pine Ridge.

Q And then what did you do with them after that?

A I turned them over, I escorted all evidence back that we had collected and personally turned them over to Special Agent Evan Hodge in the FBI laboratory.

Q The reason I'm asking you specifically about this item is because the defense has not stipulated to the chain and has {1765}

asked that we indicate what the chain of custody was on this item. So the chain of custody you're saying is that it was in your custody from the time you found it essentially until you brought it specifically to Mr. Hodge in Washington, D.C.?

A Yes, sir.

Q And you assigned him to make the firearms examination in your laboratory on this item, is that correct?

A Yes, sir.

MR. LOWE: Excuse me. Just to be sure we're clear, sometimes pronunciation is a little difficult to hear in the courtroom. You're talking now about Exhibit 34D, are you not?

MR. SIKMA: Yes.

MR. LOWE: Okay. Thank you.

MR. SIKMA: I would offer it again at this time, Your Honor. Your Honor, at this time I would re-offer Government Exhibit 34D with that additional information.

MR. LOWE: I would like to just reserve until my cross-examination to go into this any further. I don't at the present time see any objection to it but I'd like to be able to reserve until I have an opportunity for cross-examination rather than interject voir dire at this point. I would object to it simply to reserve the point until my cross-examination.

{1766}

MR. SIKMA: Your Honor, I think that at this point there's nothing objectionable about it. We've shown that the witness found it at the scene, was found in the red and white van and then it was taken by him personally to the laboratory in Washington, D.C.

THE COURT: If you have a voir dire, you may exercise it now.

MR. LOWE: I would rather, Your Honor, it would go into it extensively and I might get mixed up with cross-examination. I'd rather have the Court note my objection. I'm sure the Court is going to admit it into evidence. Just so I preserve my point.

THE COURT: You just want to reserve your right to inquire?

MR. LOWE: Yes.

THE COURT: Very well. Then 34D is received.

MR. SIKMA: That's all I have at this time, Your Honor.

MR. LOWE: May I inquire, Your Honor?

THE COURT: You may inquire.

CROSS-EXAMINATION

BY MR. LOWE:

Q Special Agent Cunningham, let me be sure I have the sequence of events pinned down. I'm not sure if we got this down in very much detail. What day and approximately what hour did you first come into the general crime scene area?

A It was the morning of the 27th.

{1767}

Q And up until that point you had not seen any vehicles or potential evidence or anything, had you?

A No, sir.

Q When you entered the crime scene area, what area did you go to or were you led to initially?

A To the crime scene itself. There was some explosives that had to be destroyed.

Q All right.

Now I invite your attention to Exhibit 71, Government Exhibit 71, and when we talk of the crime scene, and we're using the Government's term at this point, whether the word "crime" is appropriate or not is still up in the air, are you speaking of the entire area of the Jumping Bull area and the tent city when you say that or are you speaking of the area immediately around what is described there as bodies of SA Williams and SA Coler? Can you tell the jury what you're speaking of when you say "crime scene"?

A I was referring to the whole area.

Q Including tent city, for example?

A Yes.

Q On June 27, the first day that you arrived, did you make any examination of any vehicles?

A As far as a thorough examination, sir?

Q Let's start out by saying, did you make any examination at all?

{1768}

A I looked at the vehicles that were in tent city; yes, sir.

Q And would you state that those vehicles were that you did just look at, at least cursorily.

A There was a Ford Galaxie.

Q That's the 1967 Ford?

A Yes, sir.

Q What other vehicles?

A If I recall, sir, I believe I looked at the red -- no. I didn't either. I think it was just the Ford Galaxie that was down in the tent city area.

Q So that on the 27th, the only vehicle you looked at even in a cursory fashion was the 1967 Ford Galaxie?

A Yes, sir.

Q Did you make any crime scene search for cartridge casings on the 27th?

A I would have to look at the record, sir, but I believe I lid find some. I don't know if cartridge casings, I believe I lid in the tent city area recover some evidence, firearms evidence.

Q In order to be as precise as we can in examining the evidence that you're giving here, I want to suggest to you a differentiation in terms. I would like to refer to the tent city area as tent city and the area surrounding the residences and the junked cars and the locations where the bodies were found and that general area as what has been referred to as the crime {1769} scene just so you know what I'm talking about and I know what you're talking about. Is that all right?

A Yes, sir.

Q On the 27th where, if anywhere, did you make any search for cartridges as such, cartridge casings, and any other ballistics material?

A It would be in and around the tents at tent city.

Q On the 28th I believe you testified that you went to the BIA compound and am I correct in assuming that's the one at Pine Ridge you're speaking of?

A Yes, sir.

Q I believe you indicated that you spent whatever work you did on that day examining Special Agent Williams' car, am I correct?

A Yes, sir.

Q Did you look at Special Agent Coler's car at all that day?

A No, sir.

Q And I believe your testimony was that then on June 29 you came back to the same BIA compound and looked at Special Agent Coler's car?

A No, sir.

Q That is not correct?

A No, sir.

Q When did you look at Special Agent Coler's car?

A The 29th, sir. But it was not in the BIA compound, it was {1770} at Hot Springs.

Q Fine.

In any event, you spent the 29th in Hot Springs looking at Special Agent Coler's car among other things?

A Yes.

{1771}

Q And I understand from your testimony that on June 30th you examined a 1967 Ford Galaxie and the red and white Chevrolet van, am I correct about that?

A Yes, sir.

Q And was that at the BIA compound?

A Yes, sir.

Q All right. And I understand that was the first time that you looked at the red and white van and it was the first time other than your cursory look at the 1967 Ford on the 27th, and am I correct on that?

A As I recall, yes, sir.

Q Yes. Did you as in the practice make memorandums, or 302's with regard to the results of your various examinations?

A Yes, sir.

Q Prior to coming here to testify did you review your 302's?

A I did.

Q Wouldn't it be fair for me to say that with all of the cases that you handle you would be hard pressed to remember the specific details just out of your memory without looking at 302's?

A Yes, sir.

Q In fact would it be correct in saying that you do not remember the information in your 302's from memory, but rely on those records which you keep in the ordinary course of your examinations in Washington in 302 forms?

{1772}

A It is part half and half, sir. Some things I did not recall until I read my 302's, and other things I remembered.

Q Fine. Did you make your 302's fairly close in time after you made the examinations of the various vehicles based on your then fresh recollection and whatever notes you may have made?

A Yes, sir.

Q And was the information that you put down in your 302's a present sense at that time of the condition of those vehicles which you observed during your examination as best as you could write it down in the 302?

A I don't think I made a 302, sir, regarding the condition of the vehicle.

Q Well, you did --

A Other than to state that I found so many bullet holes in particular car.

Q All right. That's what I'm speaking of.

A Yes, sir.

Q And did it also, did your 302's consist at least in part of a description of the various cartridge casings and other things you found, and the condition you found them in in which you observed as you were finding these items?

A It's what generally speaking, yes, sir, that's what it is.

Q All right.

A Where I found it.

Q You described in the Williams' car seventy-five entrance {1773} and I believe you said one ricochet. I'm not clear in my mind, by ricochet do you mean the initial striking of the vehicle by a bullet that doesn't actually make a hole but simply glances?

A Yes, sir.

Q So that that would mean that a total of at least seventy-six shots, that is seventy-five holes plus one ricochet, a minimum of seventy-six shots were taken by that vehicle, one of which did not penetrate, the other seventy-five of which did; isn't that correct?

A Yes, sir.

Q And similarly with the Coler car I believe you said forty-one entrance holes and eight ricochets which means that at least forty-nine shots were impacted on that automobile and of course you mentioned the fact that there might have been more; is that correct?

A That is correct, sir.

Q So if you add those up, the forty-nine and the seventy-six, you come up with a hundred and twenty-five. Your testimony indicates that there were at least one hundred and twenty-five shots fired at the two automobiles and perhaps more; isn't that correct?

A Yes, sir.

Q Now, you talked about the size of holes in the car, and I presume you are generally aware of the various calibers of weapons or cartridge casings or bullets that have been examined {1774} because they were found either in the tent city area or related in some way to the crime scene. You're aware generally of the range of caliber, are you not?

A Generally speaking, sir.

Q Would it be fair to say that of those one hundred and twenty-five shots that were received by the two vehicles that the holes or ricochet marks could have been caused by any one or more of those vehicles in different combinations? That is, that there were some holes that could have been caused by a .22, some holes that could have been caused by a .44, some holes by a 30-06 and so forth, that there was a full range o£ combinations possible?

A I made no record of size of holes, sir. I can't answer that question intelligently.

All I examined the car for was the number of entrance holes and not as to caliber.

Q Would you examination and your recollection of what you observed and your notes on what you observed enable you to preclude the possibility that at least one bullet from each of the different calibers might have struck those vehicles, or are you simply unable to say?

A On the basis of the examination of the evidence found which did not do, then you could make an intelligent, give you an intelligent answer on the basis of my recollection, sir. I don't really recall whether or not there were many {1775} different size holes because I wasn't looking for them at that time to determine caliber.

Q You certainly could not testify today, could you, that there were no .22 holes in the cars for example?

A No, sir, I could not.

Q You could not testify, could you, that there were no .44 holes in the car?

A No, sir.

Q And if I were to list each of the different calibers of various ammunition which were connected in some way with the Jumping Bull area, I presume that you could not testify as to my one of those calibers, that it is impossible that they were used against the cars?

A No, sir, I could not.

Q Okay. Now, you made some mention about the fact that a .223 round for example, being very high velocity, might create hole that actually was larger than a .223. Am I correct in stating what you said?

A Yes, sir.

Q First of all just to, I'm not a gun person and what I've learned here is largely because of what I've read, or things that you wrote or things that I've read in other sources, and perhaps some of the jurors are in the same situation. So can you clarify what do we mean by .223? Can you tell the jury what that means?

{1776}

A .223 Remington is strictly a cartridge designation. It really does not refer to, to anything except that it's a .22 cartridge. Because the actual bullet diameter is .224.

It is, it really, it just tells you the cartridge configuration of one particular .22 caliber cartridge.

Q All right. I guess what I was specifically getting at is that .223 refers to .223 inches in diameter, isn't that the general the origin of the term?

A No, sir.

It's .22 caliber bullet by generally speaking. A center fire .22. The actual bullet diameter is .224 to be exact.

Q But the .224 means .224 inches as opposed to millimeters or something else?

A Yes, sir.

Q And when we talk about 30-06 we're talking about basically a 30 caliber, aren't we?

A Yes.

Q Which means basically .30 inches? It may vary.

A .308 is the diameter.

Q Okay. And if we talked about 5.56 millimeter we're again talking, whether it's the precise measurement or not, the approximate diameter of the bullet, aren't we?

A No, sir. It's again the cartridge designation.

Q Anyway, the difference is that some bullets are measured {1777} or described in inches and some in millimeters; and you just have to look at each one to decide; isn't that true?

A Yes, sir.

To clarify one thing, the .223 Remington is known as a 5.56 by the military. Same cartridge.

Q That was generally what I wanted to bring out so if we discuss it at some point it will be clear.

Now, getting back to the high velocity nature. The size of the hole that is actually created, let's say by a .223 round, which is a high velocity, might vary on a lot of conditions. For example, the type of metal, the humidity, the distance away from the object when the bullet is fired; isn't that true?

A Yes. Velocity at the time it hit the vehicle.

Q In fact when we say that the velocity of a .223, just to talk about the one that you gave an example, was thirty-two hundred feet per second. You are speaking right as it comes out of the muzzle, or a short distance afterwards?

A Yes, sir.

Q And if you are talking about something that is a hundred yards away the velocity is going to be thirty-two hundred feet per second at that point, is it?

A No, sir.

Q Be somewhat slower because of friction and everything else?

A Yes, sir.

Q All right. So that the distance away from the car that a {1778} weapon is fired would have a lot of effect on what the size of the hole created was, wouldn't it, or might anyway?

A To be perfectly honest we're not dealing with a great deal In other words, depending on the metal and velocity you'd have to actually test it to find out how large a hole that you get.

Q All right. That's exactly, that's what I want to bring out.

Now, you mentioned that .223 is as commercially loaded a high velocity. And I'll ask you whether the same is not true for a 30-06?

A Yes, sir. It would be considered a high velocity cartridge.

Q And 30-30?

A No, sir.

Q You don't think 90?

A You're down approximately 2280 feet per second. It's in your lower velocity.

Q How about a .308?

A Definitely it's a high velocity cartridge.

Q How about a .303?

A No, sir. There again you're down the lower range.

Q Okay. So we have 30-06 and .308 that are commercially loaded high velocity. Now, let me ask you this: we've talked a little bit about reloading. First of all can you tell the jury among various people that use guns, such as hunters or sportsmen or skeet shooters or other people, is it common or {1779} uncommon for people to reload their own shells?

A Today it's very common.

Q All right. Reloading materials including the devices used, I think you mentioned a dye including the components of the ammunition, like primers and power and everything. They're readily available in gun stores, aren't they?

A Yes, sir.

Q You don't need a license to buy it, it's sold across the counter, isn't it?

A Yes, sir.

Q When you reload a cartridge isn't it true that you do not necessarily reload it with the same components, the same type of power for example as the commercial manufacturer originally put into the cartridge?

A That is always -- used different powders that the manufacturers put in.

Q And you can vary the muzzle velocity when you reload by different, using a different powder, a higher powder and you can give some variation in muzzle velocity, can you not?

A Yes, sir, you can.

Q Would it be fair to say that a person who reloads his own cartridges could take a 30-30 cartridge for example and load it with a type of powder that would make a high velocity round?

A Usually, sir, you wouldn't load up a 30-30 on account of most of the times it's being used in a lever action gun and the {1780} lever action gun wouldn't stand the high pressure.

Q What my question is: If someone did this it would be possible to load a 30-30 round for example, though, it would hit at a higher velocity?

A Yes, sir, at a higher --

Q And in fact it would be possible to load one at a, which would fire at a high velocity, not just higher, but in the category of a high velocity if you had a rifle to shoot it; isn't that true?

A Yes, sir.

Q And the same would be true of a .303, would it not?

A Yes, sir.

Q Now, the Sierra Manual, this loading manual, I believe you indicated this, but of all the common place reloading that you mentioned it would be normal for a person who does reloading to have some kind of reloading manual where he could look up the type of shot or type of powder or the weight of powder to be put in among other details, would it not?

A Yes, sir.

Q So that it would not be unusual, let's say, if sportsmen or hunters or anyone else who did their own reloading to have a Sierra Manual?

A No, sir.

Q Now, with regard to the two vehicles and the holes that you did identify. I take it from what you said that many of the {1781}

holes, because of the nature of the holes, you were not able to identify the direction from which the bullet came that made the hole, would that be fair?

A Yes, sir.

Q Except in a general sense that it was on the right side or the left side?

A Yes, sir.

Q Taking Special Agent Williams' car first, I gather from your testimony that the most holes were on the left side generally of that vehicle?

A Yes, sir.

Q However, there were holes on other portions than the left side, weren't there?

A I found exit holes, yes, sir, and one entrance hole on the right side.

Q One entrance hole on the right side?

A Yes, sir.

Q Were there any entrance holes on the front or the rear portions of the automobile as distinguished from the left side?

A Yes, sir. The hood and the windshield generally on the left side again had twelve entrance holes. The front had four entrance holes and again generally they were coming, two of them I could tell were coming generally from the left side.

Q I gather then the two others you couldn't tell where they came from?

{1782}

A I couldn't tell, no, sir. They were in the radiator.

Q When you observed Special Agent Williams' car were the side windows, that is, the windows that were in the doors on the left driver's side and the right passenger side, present or missing?

A The left rear is missing and the left front are both missing.

Q How about the right side of the vehicle?

A Right front is missing. The right front is missing.

Q All right. Would it be fair for me to say then that if someone standing on either the left side of the vehicle or the right side of the vehicle were to have fired bullets which impacted the windows that were the normal windows in the doors, which subsequently are now missing, it would be impossible for you to say whether that took place, whether it didn't take place and anything about the bullets if they did impact the windows?

A That is correct. They're missing.

Q In Special Agent Coler's car were there holes on all sides of the car, although most of them were on the front side that was facing generally east?

A There were holes on the left side, yes, sir. As well as the right.

Q In fact were there holes on the rear of the car other than the trunk?

{1783}

A By the "rear" you mean what, sir?

Q I mean the rear portion where the taillights are, where the rear license plate is, were there any holes in that area, entrance holes I should say?

A I know none in my notes, sir.

Q Were either of the taillight lenses of the Coler car missing when you observed the car?

A I do not recall, sir.

Q You mentioned specifically that I recall four entrance holes in the right rear fender of Coler's car. Could you turn to whatever notes you might have in that regard and for a moment and just look at that.

A Yes, sir.

Q Were you able to determine any direction of entry on those four holes?

A My notes do not reflect any, no, sir.

Q So that as far as you can testify, as far as your investigation revealed, those could have been fired directly head-on into the right side of the car, or an angle from the front or an angle from the rear and you just can't say?

A Yes, sir. I can't say.

Q Did anyone explain to you why Special Agent Williams' car was taken to the BIA compound and Special Agent Coler's car was taken to another place, Hot Springs?

A I knew nothing firsthand of either car, or how they got {1884} there.

Q I understand that you knew nothing firsthand, that was not my question.

I question is: Did anyone tell you any reason why one car was taken to one location and another car was taken to another location?

A Yes, sir.

{1785}

Q If I understood your testimony, you said something to this effect: "I saw the man before anyone went inside it." Did I hear you correctly?

A Yes, sir. It was sitting in the BIA compound. I saw it, if I recall, I saw it the day that we went over Williams' car. It was in the compound at that time.

Q So you saw the red and white van on the 28th of June, although you did not examine it on that day, is that correct?

A If I recall, sir, I cannot be sure on that. I recall seeing the van prior to anybody looking -- going into the van.

Q Do you have any notes or any independent recollection of having examined the red and white van on June 28th prior to your examining it on June 30?

A I did not examine it on June 28th.

Q That was my question. Is the first time that you examined the red and white van -- withdraw it. Was the first time that you examined the red and white van June 30th?

A Yes, sir.

Q Then I gather that the only thing you can testify from your own personal knowledge is that on June 30th, of the group of people that accompanied you, if anybody did, to the BIA compound on that day, you examined the van before anyone went inside, that is correct, isn't it?

A Well, I saw it, yes, sir.

{1786}

Q The point I am making is that you were not present at all times with that red and white van, either on June 26, June 27 or June 29, and on June 30 there was only a period of time when ; you were examining Special Agent Williams' car when you had just seen the car, so you can't testify whether anybody went in that van on those days or not, can you?

A No, sir.

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

THE COURT: You may.

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

MR. SIKMA: Your Honor, I would object to this line of questioning as being misleading and inconsistent with our prior stipulation. If I thought he was going to examine this witness in that manner, I would have called the other witnesses who have a chain of custody on that van because I can establish exactly what took place with that van from the time it left Tent City to the time this witness identified it; but it was my understanding that this was not a question, but it appears almost that at this point there is some sort of question as to whether or not this van had been tampered with, changed or whatever; and I think I am going to have to read a stipulation into the record at this point and clear that matter up.

MR. LOWE: Let me say several things.

{1787}

First of all, I am correct that -- I am not trying to play word games with you -- the van was not an item of evidence. You don't mean -- you mean the items in the van?

MR. SIKMA: Yes, the items in the van, also the condition of the van because that along with Special Agent Williams' and Coler's car which were moved, and also the Ford Galaxy, those four things were moved by certain people; and they would testify that they were in substantially the same condition at various times, and it was my understanding that it was not necessary for us to establish that chain evidence.

MR. LOWE: We have no dispute on the fact that the vehicles were in the same condition. There is no -- let me finish what I am going to say.

MR. SIKMA: O.k.

MR. LOWE: me only reason I even asked that of this witness is because he came out and made the statement under direct examination -- I would not have raised it -- and said that nobody had been in the van before he viewed it.

Now, that is not a stipulation and that is no -- he raised that in testimony, and I just wanted to point out as to his personal knowledge, he doesn't have that now.

As to a lot of these exhibits we have stipulated chain of custody, and we are not going to change the stipulation on that. I don't want anybody to get the {1788} impression somehow that -- he obviously could not state that nobody was in the van before he got in there. That's not in no way backing off of the stipulation we made. I don't want to suggest that, and I am in no way suggesting that all the bullet holes weren't exactly where they said they were. I am not getting into that.

The only reason I went into that is because of the response he made on direct examination. I don't think that contradicts any of the stipulations we entered into at this point, and it certainly was not intended to.

MR. SIKMA: Well, you know, my advice to him as far as testimony would be much more technical and much more specific in this regard if I thought there would in any way be some question about this. You know, we wouldn't --

MR. LOWE: (Interrupting) I think you are seeing a question being raised that hasn't been raised. The only reason I went into that is because of the way he said it. He obviously wasn't in a position to say that he went and examined the van before anybody else went in it.

MR. SIKMA: Are you going to try to raise an inference that these items were not there at the time they were in Tent City, at the time the van was in Tent City; are you trying to raise an inference that these items were not in Tent City and then taken to the area where the vehicles were examined because that would be the only purpose of {1789} raising this question?

MR. LOWE: Can I talk to Mr. Taikeff a minute? You are raising a question here that I hadn't contemplated by asking that question. Do you want to break for lunch now and let us take this up?

MR. SIKMA: I would prefer to keep on this with this witness. He has got a plane to catch.

MR. LOWE: May I have a moment?

(Counsel confer.)

MR. LOWE: In order to be as fair as we can be and as complete on the record, it is my understanding that we have stipulated on a number of items, the vast majority of items, chain of custody, by which we mean and I understand you to mean that when somebody finds the item, you know, whoever the finder is, that there will be no challenging of the chain between the finder and whoever tests it and then comes in and testifies to it, or for that matter on up to the fact that it is the item that's in the courtroom; and on that much there is no question about it, as to any of these items.

Now, that is not to say that we are going to stipulate that the item was where it was claimed to have been found. mat's not part of our stipulation.

MR. SIKMA: Well --

MR. LOWE: (Interrupting) If we stipulated to {1790} foundation, that was a different story. That's different, but chain of custody means that the finder, once he testifies that he found it, that there will be no chain of custody challenged up to the testing of it and the producing of it in the courtroom and whatever else went on.

MR. SIKMA: The one thing I understood in our discussions with regard to the vehicles that were examined was that a stipulation would be made that they were in substantially the same condition that they were, that they were found in the general crime scene area.

MR. LOWE: That's right. We are not challenging any of the holes or whether they were washed or whether there was blood or anything else.

MR. SIKMA: No. The other thing deals with whether or not items were moved around in the vehicles and so forth because otherwise we would have to call someone to testify to that aspect because there was great care that was taken when the vehicles -- for example, the red and white van was taken from the Tent City areas, putting other items in it or taking other items out of it was carefully -- great care was taken, so that it wouldn't be different when somebody came later to examine it; and it was my under- standing that that was the nature of our agreement. Now --

MR. LOWE: (Interrupting) I will say that I did not have in my mind -- I gather what you are saying is that {1791} when we made the stipulation that the conditions of the vehicles was the same, that you thought that incorporated also that anything found in the vehicle was found where it was later identified by, well, say, this agent or someone else?

MR. SIKMA: Sure.

MR. LOWE: And there had been no disturbing of it or either putting into the vehicle and taking out of it items in the vehicle.

May I talk with Mr. Taikeff? That's not what I was thinking and -- Judge, this is going to be a matter we will have to discuss. I will still have 20 minutes, half an hour cross examination. I would respectfully suggest we break for lunch and try to come to some understanding after lunch. We can leave seven minutes early and come back seven minutes early.

THE COURT: We will not come back seven minutes earlier. We will come back at 1:30.

MR. LOWE: We will try and work it out with counsel.

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

THE COURT: The Court will recess at this time until 1:30.

(Whereupon, at 12:23 o'clock, p.m., the trial of the within cause was adjourned until 1:30 o'clock, p.m.).

{1792}

AFTERNOON SESSION

March 28, 1977

Whereupon, the following proceedings were had and entered of record on Monday afternoon, March 2, 1977 at 1:30 o'clock, P.M. without the hearing and presence of the jury:

MR. LOWE: Your Honor, Mr. Taikeff just got back from that weapon thing.

MR. TAIKEFF: May I oblige the Court briefly of what happened during the past hour?

THE COURT: You may.

MR. TAIKEFF: In order to put the Court in notice of something that I think is inspected and somewhat unusual. We three times, to make sure we were accurate, measured off a half mile in the vicinity of the Fargo airport and we took the rifle with scope and had two people, first we looked east and then we turned around and looked west. When we looked east it was a person I knew, it was Mr. Nadler, and then when we went down the other end and looked west I had my wife stand in the roadway half a mile away and I trust that Your Honor realizes I would recognize her if I saw her. In neither instance was I able to determine anything other than the fact that I was looking at a human form. I could not recognize either of these two people whom I know well. On the basis of that observation and given the testimony which we've heard concerning that very same telescopic sight and the conceded distance of a half mile, I believe that it {1793} is important in this particular case to have the jury go through the very same experience with a person they would recognize, and we propose Mr. Hanson for that purpose, so that without any comment that each have an opportunity to look through that telescopic lens for as long as they like at a person whom they would recognize, and that would be the first thing we would offer to prove in our case, Your Honor.

THE COURT: It would seem to me you would have another problem here and that is the light conditions. I would think that would make a --

MR. HULTMAN: And the viewer.

MR. TAIKEFF: Your Honor may be correct, although I think it is so clear, and perhaps Your Honor would like to participate in the test by way of us making a prima-facie showing to Your Honor. I think Your Honor would be satisfied no matter what the light conditions were as long as it were in daylight. It wouldn't make any difference. You cannot see the features of the human face through that telescope at a half mile distance. It's just impossible. It doesn't work. It isn't possible for anyone to do that and it is so obvious that if Your Honor would take a look Your Honor would be persuaded.

However, if the government thinks that we must duplicate the light conditions, then we will just have to wait for a day when the light conditions be comparable. We know {1794} what the weather conditions were on that day on June 26th, 1975 at 3:45 in the afternoon. We'll just have to wait for that particular time if they think it makes a difference. I would most respectfully suggest to the government in the course of the next several days when lighting conditions will vary from the early morning light to the late afternoon light that they try it several times. I think they will have the same experience we did. You just cannot see a person from that distance in that scope.

We intend to prove that to the jury in the course of our case.

MR. HULTMAN: Your Honor, I think we all know what the proper method of proof is here and if Counsel wants to put an expert on, and that is the conclusion that's drawn, that's going to be it. But the government is going to totally resist taking a jury with a telescope when all the factors we are talking about are indefinite factors and are subject only, first of all, to who the viewer is, and that's the thing an expert will talk about, the eyesight of a viewer.

I've looked through a few of them under some acute conditions sometime in the past and the viewers' eyes themselves indicate the ability. It is first distance and a very great distance.

I'm not in any way to minimize what Counsel is ultimately to prove. That's what experts are for. That's {1795} when viewers were given the scope are for. There's a proper way to produce whatever evidence Counsel wants to at any time.

I'll make it clear on the record the government is not waiting until a blue day in May or June, whatever it was, nobody knows specifically. You can't recreate exactly the same conditions and the government is going to proceed with its proof and I expect the defense will proceed with their proof, whatever it is, when the time comes. That's the posture and position that the government is going to take. I want that made clear at this particular time.

MR. TAIKEFF: I just want --

MR. HULTMAN: We're going to resist anything about a juror going out and at a measurement of a half mile to make a determination. I don't think there is any foundation of any kind that would, one, either allow that or, two, make it in any way admissible evidence.

MR. TAIKEFF: I don't quite understand Mr. Hultman's position. Apparently he's saying that the jury using as the fact finder the same instrument under comparable conditions as the witness would not be in a position to make up its mind as to whether or not that testimony is credible. It is so far from being credible, it isn't a close call.

MR. HULTMAN: Your Honor, all an expert would get up {1796} there and do and say is he looked through that telescope under certain circumstances and all he could see is a silhouette and now we have a swearing contest between a hired expert and the government's witness. But an expert is only necessary, Your Honor, where he can assist the jury in technical or learned matters that the jury is not in a position to know of its own experience. But the jury is perfectly competent to look in that telescope and decide whether any human being could make the kind of identification which the agent testified to.

By the way, I might indicate that on both occasions each of the people were giving me the full face view and were standing still. They were not in profile and were not moving. I could not tell who I was looking at.

MR. HULTMAN: Again, Your Honor, I come back, I don't want to prolong it, I want to, one, make the further observation, there is no place in this testimony, there is no proof that would indicate it was exactly a half mile. In fact, the record very clearly shows there is disagreement as to what the specific distances were.

MR. TAIKEFF: Yes. 20 feet was the variation on measurement.

MR. HULTMAN: We're also talking about something which has never been measured in any way which is something that is relative in nature and all of that testimony I think, {1797} Your Honor, is something properly for the jury to consider. So I just want to make my position very clear. I have no doubt of what Counsel has indicated. He's not a witness in this trial, the jurors are not witnesses in this trial. There is a proper method to attack, which I'm sure Counsel is very capable, as he indicated, to attack and appropriately attack and the government's not going to have any objection when those times come except the route of proper objections and what the record shows in terms of foundation. But the government's going to oppose any such position now being requested by Counsel.

THE COURT: I understand the positions of both sides. Are we ready for the jury?

MR. LOWE: May we have a moment? Mr. Taikeff has been gone over the lunch hour. A matter came up between Counsel, it may be somewhat significant. I think we ought to huddle our heads for a moment.

May we do that, Your Honor?

THE COURT: You may.

MR. LOWE: I believe that resolves the question.

While the jury is coming in I have something to show Mr. Sikma. I don't know any reason not to have the jury come in now.

THE COURT: Are Counsel ready for the jury then?

MR. SIKMA: Yes, Your Honor.

{1798}

MR. LOWE: Yes.

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

THE COURT: I notice that some o the jurors have taken jackets in with them this afternoon in contrast to Friday afternoon. I just want to tell you that there is no way really that we are able to control the temperature exactly. After the excessive warmth on Friday afternoon, I asked GSA, General Services Administration, who are responsible for the building to do whatever was necessary to cool the courtroom down and apparently they have cooled it down so I guess the best solution is to carry your jacket with you and if it's warm take it off and if it's cold put it on.

You may proceed.

CORTLANDT CUNNINHAM, having been previously sworn, testified further as follows:

CROSS-EXAMINATION CONTINUED

BY MR. LOWE:

Q Agent Cunningham, I have another recall question for you about ammunition size that I forgot to ask earlier and I'll get it out of the way at this point.

There have been a number of different caliber cartridge casings found in various places and I would like to clarify with regard to some types of weapons which ones are interchangeable. In that regard let me ask you, taking an AR15, {1799} I presume you're familiar, of course, with that weapon?

A Yes, sir.

Q The general character of the ammunition it uses is called .223 ammunition, isn't it, that is used in an AR15?

A Yes.

Q I asked you about ammunition which is described in other places, for example, .222 ammunition. Is that a type of ammunition that would also work in an AR15?

A No, sir.

Q How about 22-250 ammunition?

A No, sir.

Q Of all of the ammunition components which were discovered during the course of the investigation in this case, are there any components other than what have been identified as either .223 or as 5.56 millimeter which will work in an AR15?

A No, sir.

Q So those are the only two types, .223 and 5.56 that will actually be able to be fired in an AR15?

A They are both the same thing.

Q I understand that. Other than those two designations, any others are not able to be fired in an AR15?

A No, sir.

Q And that is correct?

A Yes, sir.

MR. LOWE: May I approach the witness, Your Honor?

{1800}

THE COURT: You may.

Q (By Mr. Lowe) I show you what has been identified as Defendant's Exhibit 93, 94 and 95, pictures of a red vehicle, and I ask you if you ever had occasion to examine that vehicle?

A No, sir.

Q To your knowledge did anyone under your supervision with regard to recovery of ballistics information ever examine those vehicles, any experts?

A Not that I know of, sir.

Q Thank you.

I now show you what has been marked for identification as Defendant's Exhibits 120, 121, 122 and 123 and after you have had a chance to examine them I will ask you a question about them.

Are those four 302s which you prepared based on the examinations that you and perhaps other people made of the four vehicles in question?

A Yes, sir.

{1801}

Q As to Defendant's Exhibit 120 which is the Coler car I believe you indicated that you made your examination on June 29th, and the portion of the 302 indicating the date of interview is also June 29th, is it not?

A Yes, sir.

Q And that relates to your examination that you made, doesn't it?

A Yes, sir.

Q And as to Defendant's Exhibit 121 isn't that a 302 recording the results of your examination on June 28th of the Williams' car?

A Yes, sir.

Q And as to Defendant's Exhibit 122 is that not a recordation of the results of your examination of the red and white Chevrolet van on June 30, 1975?

A Yes, sir.

Q And Exhibit 123 is the result or a recordation of the results of your examination of the 1967 Ford on June 30, 1975?

A Yes, sir.

Q When you made these reports did you make them as carefully as you could based on you then fresh recollection and whatever notes you had?

A Yes, sir.

Q And are, on the date you made them were they accurate to the best of your ability?

{1802}

A Yes, sir.

Q And were these records which you kept and have since maintained as a regular part of the activity of your firearms section of the FBI?

A I have never had them.

Q You've never had them

A No, sir. They were maintained in Rapid City, sir.

Q All right. But they were these records which you prepared in the regular course of your duties as an FBI agent which were maintained in an office of the FBI?

A Yes, sir.

Q And were these the documents or some of them which you indicated you reviewed prior to your testifying here today?

A Yes, sir.

Q And are these more complete in the details of what you examined and what you found on the four instances in question, that is, these four vehicles, than would be your own personal recollection of the similar items?

A Yes, sir.

MR. LOWE: Your Honor, we offer these four exhibits into evidence. And if Your Honor wants me to state the grounds I will. I think they're fairly obvious.

MR. SIKMA: Your Honor, we would object for the same reasons stated earlier. Counsel is using them for impeachment purposes, why he should point out what he's directing to. Other-{1803}wise, Your Honor, we'd suggest that the witness's testimony is the best evidence. The witness is present in the courtroom. If there's something that he wants to ask him about it, he can ask him about it. Otherwise we'd object to it.

MR. LOWE: Your Honor, may I state my reason?

MR. SIKMA: Your Honor, we'd approach the bench.

THE COURT: You may approach the bench to state your reasons.

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

MR. LOWE: I'm loaded for bear this time, Judge. There's no way in the world these can be kept out, starting out with Rule 612. If a witness uses a writing to refresh his memory --

MR. SIKMA: Mr. Lowe, would you keep your voice down.

MR. LOWE: If a witness uses a writing to refresh his memory for the purpose of testifying and then, second -- the first is while he is testifying which is not the case here.

Two.

THE COURT: Excuse me, what rule are you on?

MR. LOWE: 612. The second provision there is when he uses it to refresh his memory before testifying. Now, Rule 4 of 612 then provides that we are entitled to receive a document or see a copy of the document. Now, {1804} that's not applicable because under Rule 3500 rules we get it anyway. This is not apt to happen, but once having a copy we're entitled to it as the rule to cross-examine the witness thereon and to introduce in evidence those portions which relate to the testimony of the witness.

Now, the only thing in these reports is exactly what he has testified to. That is the sum of the testimony of him as to what he found. He said he found different items and he logged them, he tested them, he examined them. And for that reason, this being used before he testified, that is the first round that we would submit. This I might point out has nothing to do with impeaching a witness at all. And as to information which I want to ask him to bring out such things as the care with which he examined them, the thoroughness, the exhaustiveness with which he checked the weapons, the items and so forth as he logged them in, the thoroughness with which he made recordings of what he was finding.

I cannot ask him those without these documents because he has testified he does not remember the testimony in these 302's. He remembers some parts of it, but that he relies on these 302's as his business records and recordings that he made at the time it was filed.

So on that ground it would be admissible.

Secondly, very important, I'll wait for Your Honor if you want to look at them for a moment. They're all essentially {1805} the same, although the content is different. It's basically a listing of the items he found.

Rule 803 relates to hearsay exceptions where the availability of the declarant is immaterial. So here we have the declarant on the witness stand under 803 paragraph 1(A) its present sense impression. A statement describing or explaining an event or commission made while --

THE COURT: Excuse me. Where are you?

MR. LOWE: 803 (1).

THE COURT: 803?

MR. LOWE: Yes, sir. Sorry, I thought you were already turned to that page.

THE COURT: I thought I was, too.

MR. LOWE: A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition immediately thereafter. These 302's he has testified were prepared very shortly after or contemporaneously with the finding of various items in the automobiles, the observing of conditions of the automobiles and that it was a recollection -- I mean a recording of those conditions. That he was immediately, while he was perceiving them or immediately thereafter. I think most of this is immediately thereafter that he actually did it because the dictation dates are within a day or two. So a present sense impression of what he was observing about these items {1806} in the cars would be a second independent basis, and this is not necessary to impeach him. It's not necessary to impeach him. And at this point I don't know whether it would impeach him or not because I haven't got it in evidence for the basis of glancing through it.

Now, 803 paragraph 5, it is a recorded recollection, and under that it says a memorandum or record concerning a matter about which a witness once had knowledge, but not has insufficient recollection to enable him to testify fully and accurately shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.

He has testified that when this was fresh in his mind he made the 302 and that he no longer recalls the information in there except parts of it. That part of it he does not.

If admitted the memorandum or record made be recorded into evidence, but it may not be received unless offered by the adversary party. We are the adversary party.

Under 803 (6) records of a regularly conducted activity of a memorandum report, record or date of compilation in any form -- I'm skipping some parts -- made at or near the time by or from information transmitted by a person with knowledge if kept in the course of regularly conducted business activity; and if it was the regular practice of that business activity to make the memorandum or report, record or {1807} date of compilation all is taken by the testimony which a qualified witness, it is subject to be entered. That is another independent basis.

It's a business record kept in the ordinary course of business and here I submit it is the best evidence because this witness admits that he does not presently have recollection.

MR. SIKA: Your Honor, I might ask Mr. Lowe to keep his voice down. You can hear it all the way through the courtroom.

You want to make an argument in front of the jury?

MR. LOWE: Rule 803(7) is also pertinent. The absence of entry in records kept in accordance, this is sort of the opposite side of the business records, and that is to show that regular business records are normally, and entries are normally made to show the absence of entry to establish the nonexistence or nonconcurrence of the matter. We offer it on that basis and I will vouch that there would be significant and material testimony to show from this witness, to how that there is an absence of at least one entry in these 302's, which is legally and factually very significant in this case.

Now, any one of those grounds is a relevant basis and none of them is couched in term that it was used to impeach a witness. That's not the point at all. I'm entitled to examine him to perhaps provide the basis of impeaching him. {1808} But also to clarify information he gave on direct. To bring out all of the details about things that he said on direct, it may not. It may simply be that it makes it more complete for the jury to understand the record of what exactly it was he did, or what exactly he found.

It doesn't mean it contradicts. So that the Government is mislaying its reliance on the fact that we must impeach over a prior inconsistency. Now, it's inconceivable to me in all of the trials that have been had that these 302's have been introduced in evidence routinely; that this document does not fall under at least one of those, and I submit under all of them there is no, the Government is not doubting the accuracy. They're certainly not trying to impeach their own agents and say these are not accurate. In the premises that we have recited are so far away from the rules of evidence as to calling into question what the reason is that they're trying to keep this material out.

MR. SIKMA: Your Honor, if I may respond to this. Number one, this clearly involves items under, first of all, Rule 612(2). It says -- Mr. Lowe left out the important part. That concerning those portions which relate to testimony of the witness. Now, there are, I don't know, about, about eighty per cent of the items in these 302' were not covered during the testimony of this witness. That's one. Secondly, that we would object to it under this rule {1809} to those items not covered by the witness in direct examination.

Thirdly these 302's are written, a number of them, by persons other than -- well, here's one I don't know.

MR. LOWE: You're wrong. You're wrong. They're all by Cunningham.

MR. SIKMA: They're all Cunningham signed in part. So Cunningham has dealt with some of that. Cunningham is one of four people for example involved in finding that stuff. He can only testify to those items which he's familiar with. Now, he's not familiar with every item in that 302. He's only, some of them it indicates they're Special Agent Kelso. It's underlined by the defense counsel and he wants those underlined items of documents to go in. It's very clear that these are, these are mixed 302's. This witness can testify to certain items, but they certainly wouldn't be admissible under either Rule 803 or 612.

In addition to this it's reversible error to read aloud the prior statement of a witness in order to refresh his recollection. And in going, this is the United States, which is 37(F)2d 573 distinguishes between past recollection recorded and refreshing a witness's recollection. It says if a party can offer a previously given statement to substitute for the witness's testimony under the guise of refreshing recollection, which I would say is being done here, the whole adversary system ust be revised.

{1810}

I think what counsel is trying to do is trying to get the testimony of other agents, such as Kelson such as other persons who are involved in writing those 302's into evidence with this witness, and I think that's totally improper.

It's clear that these are not his 302's alone. They're made in conjunction with all of the other people that worked on this project. He's testified only to those items with which he's familiar and that goes completely outside the scope of what other people have testified to.

MR. LOWE: May I just point out a factual thing because I think you may want to distinguish. I don't know whether you will or not. These exhibits, 120 and 121 clearly state on their face, that is a list collected by Mr. Cunningham only. So to the extent that I speak to that last comment these two would clearly be admissible as being strictly what Mr. Cunningham found the lists.

Now, why Mr. Kelso joined in signing it, I don't know. But the catch 22 that the Government is proposing is that any time they would want to present a 302 from ever being introduced is put two names down there because you'd never be able to have two witnesses on the stand at the same time. They're certainly able to bring it if one of these other ones, as to which part he knew and which part he didn't know.

Now, as to these two there is clearly no ground for not putting it in.

{1811}

THE COURT: Well, just a minute, though. It says a list of specimens collected by SA Cortlandt Cunningham. Then we have the signature of Kelso on there. Now, this may be his report.

MR. LOWE: Well, his signature also, Cunningham. But I asked him and he, Cunningham said he prepared these reports. So his testimony is in to lay the foundation for that.

MR. SIKMA: It says the list was made, but it doesn't say that he found all of those items either.

MR. LOWE: Oh, come on, what does it mean he takes a list Or the specimen collected by Mr. Cunningham. That's all I'm going to put in there.

MR. SIKMA: All right.

THE COURT: It says collected by Cunningham.

MR. LOWE: I don't know what it means if it doesn't mean that.

MR. SIKMA: I would still say that the Court, we would object to those not brought out on previous examination which will require an examination to exercise any portions not related to the testimony of this witness.

MR. LOWE: Judge, he stated he made a thorough examination of these cars. Were entitled to show that the thorough examination consisted of, what items he found. This is not trying to contradict him.

{1812}

This is to go to matters which were raised on direct examination to show the report he made as to what he found. Particularly in the ace of the fact that he does not now remember what he found.

THE COURT: But the 302 can be used to contradict him.

MR. LOWE: I don't necessarily want to contradict him. I want to show what it was he found.

MR. SIKMA: For what purpose?

MR. LOWE: For any proper purpose. I'm not limited on cross-examination to impeaching or contradicting a witness. Cross-examination also is to fully develop what he said on direct examination. He said he made a thorough examination and he collected certain items and he processed them and I want to show, and I'm entitled to show what it was he found. He doesn't remember in his own mind what he found.

THE COURT: Give them to him to refresh his recollection then. Ask him.

MR. LOWE: He says it won't refresh his recollection. He says he doesn't remember.

MR. SIKMA: I don't think he said that. In addition to this I would say that it's a waste of time, needless presentation of cumulative evidence under 403. It's a bunch of stuff that we're not offering into evidence. A bunch of stuff that's not before the jury, and it's totally irrelevant.

{1813}

MR. LOWE: I've given five different basis under any of which we are entitled to show this. I just don't understand the Government's position. They've been to trial after trial. There have been hundreds of 302's introduced routinely under 803(1). The present sense impression meaning his, that what he's seen, it's admissible. It doesn't say I have to be contradicting the witness. This is relevant evidence.

MR. SIKMA: It does say he has to testify to it under direct examination.

MR. LOWE: Not under Rule 803. Absolutely does not.

THE COURT: Well, I will reserve my ruling and give you a ruling on it tomorrow morning.

MR. LOWE: This witness will be gone by then, Judge.

THE COURT: Maybe he'll have to be held.

MR. LOWE: All right. Now, because I don't want to have a lot of objections while I'm asking these questions, nor do I want to offend the Court's idea as to how I can properly use these as to what you've said, I want to ask him to list for the jury all of the items that he found in each of these vehicles since I can't do it by introducing the exhibits themselves. Am I to give it to him so he can read it, or am I to ask him if it refreshes his recollection, am I to read it to him? How does Your Honor want to proceed? We've got a horrendous list. That's the only way I can do it.

MR. SIKMA: If you have something that you want him to {1814} point out I suggest you ask him about it.

MR. LOWE: The entire list is what I want to point out. Now, if you want to --

MR. SIKMA: Ill object to it as outside the scope of the direct examination.

MR. LOWE: He examined the car and he found things in there and I'm entitled to find out what it was. Now, they asked him that on direct.

THE COURT: No. He's entitled to find out on cross-examination if there were articles found beyond that which he testified to. I don't think there's any question.

MR. LOWE: Be a lot simpler to put these in. If the Government would put these in he could adopt it.

THE COURT: Without some further research on this you have to proceed accordingly.

MR. LOWE: How do you want me to proceed in that vein, Judge? Do I let him read it out loud, do I read it to him? I don't want to do it improperly and be up here again.

THE COURT: I think that you can ask him if it isn't true that he round this item or that item or this item.

MR. LOWE: I'd be happy to do that and I'll let him refer to a copy of it.

THE COURT: Any objection?

MR. SIKMA: No.

MR. LOWE: I'll let him refer to a copy of it.

{1815}

THE COURT: How can you refer to a copy of it?

MR. LOWE: May I suggest this, Your Honor. I think since you want to make this ruling I would like to have the ruling first because I don't want to bore the jury to tears when reading these things when we may want to refer to specific items later. And if Your Honor allows them to be admitted that solves the problem then. I'm not going to read the entire list. So I would ask that we be allowed to simply hold the witness until you make a ruling so that we can deal with it in an expeditious way and not tie up a lot of court time. I think it would help Your Honor's schedule.

THE COURT: What is your response to that? Your witness is going to get to the airport.

MR. SIKMA: No. Quite obviously, but I'm not going to give in on this issue because I think it clutters the record.

THE CURT: I'm not asking anybody to give up. I'm just asking for your response.

MR. SIKMA: I think that he can go into these items. If he wants some items to point out, let him go into it.

THE COURT: If he wants to reserve his cross-examination until after I have ruled on those exhibits, and I'm not going to rule without some further research on the question.

MR. SIKMA: Very well. I guess we'll have to hold the {1816} witness.

MR. LOWE: We'll just interrupt cross-examination at this point then and thy can put on whatever their next witness is. Thank you.

{1817}

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

THE COURT: Are you reserving further cross examination at this time?

MR. LOWE: Your Honor, pursuant to our discussion at the bench, I would like to reserve further cross examination until this witness comes back on the stand.

THE COURT: Very well. You may step down.

(Witness excused temporarily.)

MR. CROOKS: Your Honor, could we approach the bench for a moment?

THE COURT: You may.

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

MR. CROOKS: Your Honor, the reason I wanted to go to the bench, the next witness I had hoped to be able to accommodate so he could leave town today. He is a witness who would really be the first of the Oregon people.

Now, counsel has indicated that they would wish to make argument out of the hearing of the jury on this Oregon incident; and I was intending to call him, call him now in the hopes we could get him out. I think his plane is at 3:00 o'clock, but if they are going to make extended argument --

THE COURT: (Interrupting) I do not see how you can {1818} get somebody out at 3:00 o'clock.

MR. CROOKS: It appears now that's probably correct.

MR. LOWE: It would help if you would just give a brief statement as to the nature of it -- we haven't had a chance to analyze this -- in order to formulate what questions we have.

MR. CROOKS: He identifies Mr. Peltier as being in the recreational vehicle and the Plymouth which the Court has already seen in Exhibit 40-C, I believe it is; and he sees him on the date of the incident in Oregon, prior to the incident, puts him with the vehicle. He sees him at The Dalles, Oregon. The shooting and a confrontation with the officer takes place on the other side of Oregon at Ontario; but he does put Mr. Peltier at the vehicle.

MR. TAIKEFF: Mr. Crooks, I think that the portion of the Oregon case we are concerned with is not encompassed by that testimony. I think if you will call him right now we probably will not cross examine him and he can make his 3:00 o'clock plane; and then we can approach the bench. I think this man can make his plane if we go forward.

MR. CROOKS: That's what he would testify to. He doesn't get into the shooting part of it in Oregon.

MR. LOWE: Or the finding of anything in the vehicle?

MR. CROOKS: No.

(Whereupon, the following proceedings were had in {1819} the courtroom in the presence and hearing of the jury:)

MR. CROOKS: Your Honor, if it please the Court, the United States would call Mr. Eugene Strain.

EUGENE STRAIN, being first duly sworn, testified as follows:

DIRECT EXAMINATION

By MR. CROOKS:

Q Mr. Strain, would you state your full name again for the record, please?

A Eugene Strain.

Q Where do you leave, sir?

A The Dalles, Oregon.

Q And what is your employment?

A Service manager for Sunset Motor Company.

Q And calling your attention back to the fall of 1975, were you service manager or employed by the same oil company at that time?

A Yes.

Q All right. Calling your attention specifically to the 14th day of November, 1975, were you on duty with the Sunset Oil Company at The Dalles on that occasion?

A Yes.

Q During the course of the day did you in the normal duties as an attendant have occasion to service a Dodge motorhome which was accompanied by a Plymouth stationwagon?

{1820}

A Yes, it was in the repair shop.

Q I would show you what has been marked as Government's Exhibit No. 61, the first page of it, and ask if that is a vehicle which you associate in some way?

A (Examining) Yes, it is.

Q And is there anything particular that you see about that that you can identify and recall?

A The left windshield wiper is missing on the vehicle. That Is the reason it came into the repair shop, to see if we could assist them in repairing it.

Q There is also a picture of a white Plymouth with brown panel. Do you recall that vehicle specifically?

A There was a light-colored vehicle traveling with this unit. On that car I can't say definitely whether it was.

Q You can't make a positive identification on the Plymouth wagon, but you can make a fairly positive identification on the picture?

A Yes.

Q And what was the occasion that you had to service the Dodge motorhome?

A They brought the unit in. They were having problems trying to repair this windshield wiper, so they could use it.

Q And how many people -- just not necessarily specifically -- how many people were with the motorhome?

A The only ones that I actually saw were three.

{1821}

Q All right, and approximately how long were you with the individuals that you identified as having been with the motorhome?

A About 15 to 20 minutes, I would say.

Q 15 to 20 minutes. Did you visit briefly off and on with the various individuals that we are concerned with there?

A Yes, I was talking to the two of them.

Q Now, would you point out just very briefly for the jury -- we have a map over here which is Exhibit 70. Would you point out where The Dalles is with reference to the State of Oregon, calling your attention to Exhibit No. 7? You can take the pointer if you would.

A I think it is approximately right in here, right here (indicating). We are actually 87 miles east of Portland, is where we are at. The Dalles is right there (indicating).

Q And the Dalles is at the western-most end of what is commonly referred to as the Columbia Gorge, is that correct?

A Yes.

Q I would ask you, Mr. Strain, if you can identify the individual or one of the individuals who was in the company of the Dodge motorhome as being in the courtroom today?

A This gentleman (indicating), sitting over there with the orange.

Q This would be the gentleman in the orange shirt at the counsel table?

{1822}

A It has been a long time.

Q All right. Give me your best recollection if you can identify him or anyone else.

A Not real positive.

Q You are not real positive?

A No, sir. It has been a long time.

Q Well, would you describe the man that you saw and state what differences, if any, you see with the individual you tentatively identified?

MR. LOWE: Your Honor, I object. There has been nobody tentatively identified. He is looking around the courtroom, and he his not positive he spots anybody. I object to the form of the question.

THE COURT: He may describe the individuals that were present.

Q (By Mr. Crooks) Describe the individual that you have in mind.

A Probably around five feet ten; five, nine; five, ten, somewhere in there; 170, 190 pounds; dark, curly, long hair; and a mustache at the time, of either Indian or Spanish descent.

MR. CROOKS: All right. We have no further questions.

MR. LOWE: May we have just a moment?

THE COURT: You may.

(Counsel confer.)

MR. LOWE: We have no questions, your Honor.

{1823}

THE COURT: You may step down.

MR. CROOKS: We would ask Mr. Strain be permanently excused so he can catch a plane.

THE COURT: Any objection?

MR. LOWE: No objection, your Honor.

THE COURT: You are excused.

THE WITNESS: Thank you.

(Witness excused.)

MR. HULTMAN: The Government calls Agent Waring, your Honor.

(Counsel confer.)

GERARD P. WARING, being first duly sworn, testified as follows:

DIRECT EXAMINATION

By MR. HULTMAN: