VOLUME X

Pages 1935-2161

{1935}

TUESDAY MORNING SESSION

March 29, 1977

(Whereupon, the following proceedings were had and entered of record on Tuesday morning, March 29, 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: There's just one matter for the Court, and that is to ask whether or not Your Honor has ruled on Defense Exhibit 75.

THE COURT: I was going to take that up.

MR. TAIKEFF: Thank you.

THE COURT: First of all with regard to the request that the jury be permitted to view an object through the rifle telescope measured a half a mile, that some site be selected, that request is denied. The reason for the denial is that there is no way to duplicate the exact conditions that may have existed on the 26th of June, the exact distance there which the witness testified that he had viewed the object is not known. It was only an estimate. And the Court is of the opinion that differing conditions of light, atmospheric conditions, background and even the viewer itself are such that to go through that exercise would have no probative value.

With reference to the exhibits that were offered {1936} yesterday afternoon and specifically Exhibit 122 the Court notes that page 18 which appears to be the last, the last pate of Exhibit 122, the following statement appears: "The aforementioned inventory was divided in the search as follows: Special Agent Robert D. Harvey and Harry Thomas Evans inventoried items 1 through 103.

"Special Agent Kenneth J. Andrus and Special Agent Cortlandt Cunningham inventoried items 1 through 6. List had a page 9 dealing with radio equipment and ending on page 11 through 12.

"Section dealing with firearms and explosive specimens, items 1 to 33 was inventoried by Special Agent Cunningham and Special Agent Edmund W. Kelso.

"Items listed under miscellaneous items, 1 through 32, were inventoried by Special Agents Robert D. Harvey, Kenneth J. Andrus and Harry Thomas Evans."

It's obvious that on the basis of the decision of the Court of Appeals in the United States v. Cloudman, 534 F.2d 123 (1976), and from the nature of the exhibit, that Exhibit 122 is not admissible.

MR. LOWE: That would be until such time as we produce or lay a foundation with the other people and then only as to those portions that individuals could themselves identify I presume?

THE COURT: Well --

{1937}

MR. LOWE: If what you've said so far any way.

THE COURT: Yes. That may make it admissible. I'm not ruling at this time.

MR. LOWE: Yes.

THE COURT: On Exhibits 120, 121 and 123 it appears to me that those exhibits may be cumulative and to the extent that they are cumulative they have no probative value. On the other hand I believe it to be within the discretion of the Court where these exhibits are simply a listing by the special agents of the items found, the Court will admit Exhibits 120, 121 and 123.

Court had reserved ruling on Exhibit 106. That exhibit will not be received, again on the basis of the United States vs. Cloudman.

MR. LOWE: Could Your Honor just identify by some description what 106 is. We don't have a --

THE COURT: It is the 302 prepared by Special Agent Frederick Coward relating to Stoldt.

MR. LOWE: And Your Honor is using the Cloudman decision. I'm not sure I understand just by citing that case what the reason is. Could Your Honor just state it so that we have guidance on that.

THE COURT: I'll just read the appropriate paragraph. "It is next claimed that the trial court erred in refusing to admit into evidence Defendant's Exhibit A. Exhibit A was an {1938} FBI report of an interview by Agent Flynn with Charla Kalsato, a government witness. Prior to the testimony of Kalsato defense was furnished a copy of Agent Flynn's report. It was not a signed statement nor was it adopted by the witness, but was merely a reduction to writing by an FBI agent of an oral interview. As such it was hearsay and the District Court properly excluded it. Defense counsel used the report in cross-examination of the witness and then offered the report itself into evidence.

"The FBI agent who made the writing of the report was present and available for calling, yet counsel chose not to call him. This would have been the proper --"

MR. TAIKEFF: Your Honor, may I inquire whether the last offer that Your Honor rejected, I think the number was 103, was it a paragraph in the report? It's hard for me to keep track of all these documents by number. My recollection seems to be 103. We're talking only about a single paragraph in that report, or maybe it's 106.

{1939}

THE COURT: 106 is the one you have reference to.

MR. TAIKEFF: Am I correct, Your Honor, that that paragraph is contained within a 302 which was authorized by Coward?

THE COURT: Yes.

MR. TAIKEFF: And it concerns what was said to him by Stoldt?

THE COURT: That's right.

MR. TAIKEFF: Your Honor, that was offered to show what Stoldt said to him on that particular occasion and he said that he could not testify from his own memory. Therefore, I not only could not use the report to impeach his memory but couldn't get into evidence out of his mouth what Stoldt said to him, he being the only witness to what he heard. And so I then questioned him as to whether or not that when written represented what was a fresh recollection in his mind at the time and it was specifically offered as a past recollection recorded. So Your Honor's citation to the eighth circuit rejection of the appellant's position on the basis of hearsay is not apt with respect to that particular paragraph because it is, I trust, basic that a past recollection recorded is an exception to the hearsay rule so that if it's hearsay it's not restricted as hearsay normally is on the one hand. On the other hand, the eighth circuit case refers to the fact that the document was employed {1940} sufficiently or adequately in cross-examination and, hence, the jury was able to hear it as impeachment evidence as opposed to evidence in chief. But in connection with my inquiry of Agent Coward, there was no evidence in chief because he said he can't remember what he was told and so I laid a proper foundation to introduce it as evidence in chief, not as impeachment material and, hence, I believe that the basis of Your Honor's ruling is not appropriate to that particular paragraph.

THE COURT: You are seeking through this paragraph to have Coward testify as to what Stoldt said to him?

MR. TAIKEFF: That is correct, Your Honor. To show what Stoldt said.

We obviously take the position that the facts asserted by these two people are not true. That alone takes it out of the definition of hearsay. Hearsay is defined as an out of court declaration which is offered to prove the facts asserted therein. Our position is to show that the facts asserted are false, they are not true, so it isn't hearsay to begin with. However, perhaps it may be hearsay. If it is, there is an exception to the hearsay rule.

Mr. Lowe encourages me to call Your Honor's attention to the fact that what I am trying to do is prove the utterance, not the content. I want to prove the utterance because our position is that the utterance is false and the {1941} content of that paragraph helps us establish that fact. So it's not hearsay to being with and if it is there is an exception for it.

THE COURT: It seems to be the difficulty with your position is that the utterance isn't before the Court.

MR. TAIKEFF: It is before the Court, Your Honor. There is testimony from the witness that there was such an interview. Am I correct that that is the 302 of September 4? Lower left-hand corner date is the one I'm referring to.

THE COURT: September 4.

MR. TAIKEFF: Yes, Your Honor. There was testimony that there was an interview on that day. That was the delayed interview for which he had no time on June 26th because he was preoccupied and it was two or more months later when he finally got around to interviewing Stoldt and no longer remembered what Stoldt said to him. Now I offer that to show what Stoldt said to him.

In addition to that, it also shows what he wrote on that day purporting to be what Stoldt said to him. Now that then would be an act of his. He can't remember out of his mind what he act was, i.e., the dictation to the stenographer. But there is no question but that the typing of that followed upon the dictation so it is an accurate reflection presumably of what he said to the stenographer-typist, and he then looked at it and initialed it for accuracy which is further {1942} confirmation of the reliability of the text to show what he said Stoldt said. That's all I want to show.

I specifically, and I think it should be clear from the defense position thus far that we do not acknowledge the truth of those statements. Quite the contrary. I want to show either what Stoldt purportedly said to him that day because of certain arguments that may be made with reference to it, through the significance of him having said that, if he said it, or in the alternative the physical act of Coward in writing or dictating that paragraph.

MR. SIKMA: Your Honor, may I be heard for just a moment?

THE COURT: You may.

MR. SIKMA: It seems to me that it's totally irrelevant. Defense counsel indicates that a prospective witness, the defendant indicated he's going to call that witness, has made a statement sometime during the course of the investigation. The government has not called that witness. The defense counsel is saying that that witness made a statement that was not true but he wants to use this hearsay statement, this transcript, or, it isn't a transcript, it's a summary of an interview. It isn't even a verbatim statement of that particular witness, and use that as evidence of some sort of defense. Well, it seems to me that it's totally immaterial and irrelevant. It's sometime during the {1943} course of an investigation that a witness or prospective witness made a statement that is not used as proof against the defendant concerning his guilt, number one, and, number two, isn't even being called as a government witness. That seems to me to be totally irrelevant. Even if there is some theory under with the statement could be used, if it were used for some legitimate purpose, there still has to be some materiality to the information which is contained in that statement.

The defense can't set up straw men. The defense can't call witnesses concerning things that have nothing to do with this case in an attempt to use that as a defense in this case.

The government isn't calling this witness, it isn't being used as evidence against the defendant so it seems to me rather strange that the defendant here should be trying to introduce evidence that someone made a statement which they're now claiming isn't true. Since it isn't being used in any sense in this case, the best evidence would be the witness who could be called to testify to that, if it in fact were even relevant in this case. We submit it's totally irrelevant.

MR. TAIKEFF: Your Honor, I just wanted to point out that I think the defense needs a Sikma English interpreter because I'm not entirely certain that Mr. Sikma has said {1944} anything that one could make sense of.

First of all, I think it appropriate to observe that something cannot be irrelevant and immaterial and he interchanges the use of those words so I don't know what his argument meant.

The point is, it's not hearsay. We do not offer it for proof of the facts asserted therein so his entire argument on the subject of hearsay is meaningless. His argument is irrelevant.

{1945}

We offer it to show that an event took place and that it was so said to the agent, or that the agent wrote those words on a piece of paper by the facilities of a FBI stenographer. That is the purpose offering that paragraph.

THE COURT: I think, Mr. Taikeff, it you will review Rule 401, you will probably conclude that a piece of evidence can be both irrelevant and immaterial. 401 is the definition of relevant evidence.

MR. TAIKEFF: I am afraid that I don't share your Honor's view.

THE COURT: Very well.

MR. TAIKEFF: It says, if I read it correctly, that something is relevant if it tends to show that a fact in dispute is either more likely or less likely to have occurred. That is exactly why we offered that paragraph.

THE COURT: With reference to Defendant's Exhibit 75, the first two pages of that exhibit are in evidence.

The Court on examination of the exhibit, finds that there are many items contained in that exhibit which are hearsay and for which there are no exceptions; and therefore, the balance of Exhibit 75 is not admitted.

MR. LOWE: Your Honor, so that our record may be protected, if not for persuasion of your Honor as to alternative bases for admitting it, I would point out that {1946} by any stretch of any person's imagination what took place on June 26th as to the FBI Agents and BIA Agents, using the radio, was excited utterances; and by that basis alone the radio transmissions would be exceptions to the hearsay rule where the presence of a declarant is immaterial.

Secondly, what we are really offering that for, one of the reasons is what Ann Johnson perceived in terms of what she heard taking place on the radio network. It is not for that purpose offered for the truth of what took place, but to show the occurrence of certain radio traffic at certain times.

It is certainly under that sense a presence sense impression of an event or condition that is taking place which was made contemporaneously with or shortly after the occurrence of the event and was taken down in her instance in shorthand. While it does not purport to be verbatim, she certainly adopts it as being as accurate as she could make it, that she was personally observing the times on the clock. We offer it at least on that basis to show an event that was taking place, that is, the reception of the radio traffic and what she perceived.

We feel for that purpose at least it is relevant.

THE COURT: If it is offered only for what she perceived and not for the truth of what she perceived, then it seems to me it is relevant.

{1947}

MR. LOWE: No, your Honor. If she perceived that an agent said at two -- let's say at 12:18 an agent said, "There is a red pickup truck that just left the area," we do not offer it to prove that a red pickup truck just left the area. We do offer it to prove there was an utterance by Special Agent Gary Adams at that time to the effect that a red pickup truck just left the area.

She obviously has no way of knowing whether Agent Adams was actually observing that or not. She does know that is what Agent Adams uttered at that time.

That is why we are offering it, as a primary reason, all of the traffic, just to show at those particular times the people -- Agents or BIA officers made the utterances at that time, not to show that the utterances were factually correct or true at the time they made them.

THE COURT: Secondly, the Court does not construe these radio communications beyond the first two pages to be excited utterances.

You have in this case trained investigative law enforcement personnel of two or three different agencies -- considering the South Dakota Highway Patrol, I do not know whether they appeared -- you have the BIA and the Federal Bureau of Investigation, routinely in the course of making a search making radio transmissions. I do not construe that as excited utterances.

{1948}

MR. LOWE: I understand your Honor's ruling on that. I want to be sure your Honor understands that is not the supporting foundation I said, that the utterances were made by these officers on their radio at the time they made them.

There are two distinct categories, I think your Honor is expressing. I want you to understand that's my reasoning.

THE COURT: Very well.

Are we ready for the jury?

MR. TAIKEFF: Yes.

THE COURT: They may be brought in.

(Whereupon at 9:27 o'clock, a.m., the jury returned to the courtroom; and the following further proceedings were had in the presence and hearing of the jury:)

GERARD P. WARING,

having been previously duly sworn, resumed the stand and testified further as follows:

MR. TAIKEFF: May I proceed, your Honor?

THE COURT: You may proceed.

CROSS EXAMINATION

By MR. TAIKEFF:

Q Mr. Waring, what time did you leave this courtroom last night?

A I think it was approximately 5:30 or so.

{1949}

Q And between that time and now have you discussed any of the testimony you gave yesterday with anybody?

A No, sir.

Q Have you reviewed any documents or other matter?

A No, sir.

Q After the jury left at approximately three minutes to 5:00 last night, you gave additional testimony in the absence of the jury, did you not?

A Yes, sir.

Q At this time is there any reason you have to change any of the answers you gave in the absence of the jury?

A No, sir.

{1950}

Q Has anything come to your attention, or to your recollection since yesterday at 5:30 that suggests to you that there is a possibility that you might be uncertain about any of the answers that you gave in the absence of the jury?

A No, sir.

Q Now, when you first went on the stand yesterday to give your direct examination were you then or had you recently been aware of the fact that on a certain 302 of yours the date of dictation was listed as June 30, 1975 and the date of typing was listed as June 26, 1975?

A I had been aware of that for some time, yes, sir.

Q But my specific question was: Were you aware of it at the time you got on the stand?

A Yes, sir.

Q I'm placing before you Defendant's Exhibit 83 for identification. Is that the 302 I just referred to?

A Yes, it is, sir.

Q Am I correct, sir, that the document has eight pages?

A There's eight pages. Page 4 is about, approximately one-half a page to a quarter page.

Q But it has eight separate sheets with at least some typing on each of them?

A Yes, it does.

Q And the pages are numbered 1 through 8?

A Yes, sir.

{1951}

Q Now, page 4 isn't a full page of typing; is that correct?

A That's correct, sir.

Q It's as you said, what, about a quarter of a page or a third of a page?

A Runs about a quarter of a page, yes, sir.

Q The rest of the page is blank?

A Yes, sir.

Q Now, at the top of the next page, which is page number 5, the report continues to describe events which you experienced on June 26, 1975?

A Yes, sir.

Q And what is the earliest time mentioned at the top of page 5?

A 12:30 to 1:00 P.M.

Q What is the earliest time mentioned?

A That would be the first sentence. It says approximately 12:30.

Q 12:30.

Now, would you look at pages 1 through 4 and then again pages 5 through 8 and tell us whether based on your own personal observations at this time the material on pages 1 through 4 is typed on a different typewriter than the material on pages 5 through 8?

A I can't say definitely if it was or was not.

Q As you look at pages 1 through 4 and then again at 5 through {1952} 8 do you not detect an entirely different appearance in the type styles without getting down to the specific details of any letter or number, just a general sense impression?

A Like I previously stated I don't see a difference in it.

MR. TAIKEFF: Your Honor, I offer that document in evidence so that the jury may evaluate that answer.

MR. HULTMAN: Your Honor, the Government resists on the grounds that it is very obvious. This is an attempt to get before the jury a document which counsel has questioned and can continue to question this witness about; and the document itself is purely cumulative and repetitive and it's not the best evidence.

If he wishes to specifically point out anything by this witness or any other concerning what might appear there, there is a proper method in which to do it and I would object for these reasons.

THE COURT: Sustained.

Q (By Mr. Taikeff) Sir, I ask you to take a look at the first page and the sixth page. With respect to the first page, please look at the second paragraph on the fifth line and tell me whether it contains the date June 25, 1975?

A That's the first page, second paragraph, line 5. It does, sir.

Q On that same page look in the lower right-hand corner and tell me whether there is a code number or serial number which {1953} is an FBI case number or the equivalent?

A In the corner --

Q Lower right-hand corner after the word "South Dakota".

A It says "MP".

Q Yes. Do you recognize that as a code number, case number, some sort of an FBI serial number?

A It just designates a case number.

Q Okay. And it's present there in the lower right-hand corner, is it not?

A Yes, sir.

Q All right. Now, would you take a look at page number 6. In the upper left-hand corner of that page do you find that case number which was in the lower right-hand corner of the first page?

A yes, sir.

Q And in the, roughly the middle of the first full paragraph which you might call the second paragraph, the one that begins at this point, do you find reference to two hundred fifty, written out as a number, yards?

A Yes, sir.

Q In the last paragraph on that page do you find on the third line 75 yards, but with the 75 written as digits?

A Yes, sir.

Q Now, sir, I ask you to compare those portions of page 1 that I've called your attention, with portions of page 6, {1954} specifically looking at the seven which appears in both places on page 7, and the seven which appears in both pages on page 6 and tell me whether or not you are fairly certain that they are distinguishingly different sevens?

A I can't be certain that they are, sir.

Q Now, I want you to take a look at the five which appears in June 25, 1975, twice on page 1 and the five which is in two hundred fifty yards, and seventy-five yards on page 6, and looking at the five in both instances tell me whether or not it is your perception that those fives are clearly different shape characters?

A I'd have to say again not clearly.

Q Tell me, sir, whether Defendant's Exhibit 126, which I place before you, is a reproduction on clear celluloid of page 1 of Defendant's Exhibit 83? Yes or no.

A Yes, sir.

Q Tell me whether Defendant's Exhibit 127 is similarly a duplication of page 6?

A Yes, sir.

Q Tell me whether Defendant's Exhibit 128 contains that portion of page 1 which has the date and the word before it and the two words after it from the second paragraph of page 1?

MR. HULTMAN: Your Honor, at this time the Government, I think the questions have been asked and have been answered and asked again and answered again to the best of ability of {1955} the witness. I have no objection at this time that if counsel wishes to stipulate into the record that it would appear with those letters that it could so be interpreted, to so stipulate into the record at this time.

MR. TAIKEFF: Your Honor, I appreciate Mr. Hultman's offer at this particular time but I believe this witness's credibility is in issue and I am at this time attempting to explore his credibility if I may be permitted to continue. I reject the stipulation.

MR. HULTMAN: I again would then enter my objection that these particular questions have been asked and answered and asked and answered and it's repetitive.

MR. TAIKEFF: I don't see how he could say they have been asked and answered. I have one more exhibit I haven't made reference to.

MR. HULTMAN: He excluded the two by way of comparison and anything else by way of any of the letters on the pages not in issue in any way.

MR. TAIKEFF: Your Honor, I am using these exhibits and these questions to lay a foundation for further cross-examination.

THE COURT: Counsel please approach the bench.

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

THE COURT: I am having difficulty understanding how {1956} this could impeach this witness. In the first place he has testified that he dictated to two different stenographers. I don't think it's particularly inconceivable that two different stenographers would type on two different typewriters.

MR. TAIKEFF: That's precisely where it is a serious credibility question because he persists in not admitting what is clear to the naked eye.

I think the jury is entitled to evaluate his testimony, his candor in light of what is clear in the face of these documents.

THE COURT: The second problem that I see with that is that under the modern typewriters if you change the ball you've got a different type.

MR. TAIKEFF: I understand that, but that doesn't go to the question of admissibility. That goes to the question of weight and it's the Government's function to bring that out.

THE COURT: I'm aware of that, but it seems to me that you are getting into a collateral issue here which really gets down to an argumentative basis without any, that has no relevancy to the credibility of the witness or anything else.

MR. TAIKEFF: Your Honor, I'm not seeking to call an expert to the stand to testify in rebuttal on a collateral issue. I am questioning this witness's veracity and his {1957} willingness to answer forthrightly and candidly.

THE COURT: He has answered and you are bound by the answer.

MR. TAIKEFF: I'm not bound by the answer, Your Honor, only in the sense that I cannot call a witness in rebuttal am I bound by the answer. I am not bound by the answer in that I cannot probe him.

THE COURT: You are bound by his answer that he can see no particular distinction.

MR. TAIKEFF: But the jury must be in a position to evaluate the truthfulness of that statement.

THE COURT: He can be perfectly truthful and still see no distinction.

MR. TAIKEFF: But they can decide that that isn't true. That's a question of fact for the jury, not for Your Honor or for the Government or even for me. Only they can determine that.

MR. HULTMAN: Your Honor, I would just come back to the fact that the questions have been asked and asked. It's a very simple question about a specific two numbers. I submit it's not as plain. I looked at the pages myself, Counsel, and I thought they were typed on exactly the same.

Frankly, when you point -- now, wait until I finish.

MR. TAIKEFF: I wasn't going to interrupt.

MR. HULTMAN: When I finally looked at the two specific {1958} numbers to which you are referring I have difficulty myself, and I think I would probably give the same answer or the same response that you're trying to elicit a hard yes or a hard no from this witness. He has given an answer that falls somewhere between those two particular categories and I submit the question has been asked Your Honor. It's been answered and for that reason I object.

THE COURT: The other problem you have here is really what you are doing, you're not probing the direct testimony of the witness. You are simply setting up straw men and then attempting to knock them down.

MR. TAIKEFF: Your Honor, this witness has perceived things which he's testified about. If his ability to perceive in the eyes of the jury is so ineffectual that he cannot see the difference between the fives and the sevens on those typewritten samples then he's a cripple and the jury should know that he's a cripple.

THE COURT: The objection is sustained. There will be no further inquiry on this point.

MR. TAIKEFF: Well, they're marked in evidence.

MR. LOWE: May we have a clarification, Judge, as to your practice. When we mark something for identification is additional proffering necessary in order to make it a part of the record for proffer purposes for an appellate record? Do we actually have to say we offer this as a proffer?

{1959}

THE COURT: I will direct as long as you offer it, or I mean you've marked it, and have offered it I will direct that it be made a part of the record.

MR. TAIKEFF: Could I just ask one more foundation question for the purpose of protecting the record?

MR. LOWE: Let me just ask one more thing with regard that we would ask Your Honor any time we make an offer and you reject it that it can be considered that that is a proffered item, that's all. I think that's what you said.

THE COURT: I think it should properly be made a part of the record, not a part of the exhibit record to the jury for its deliberations, but a part of the record of the case for appeal. If an appeal should arise in this case it would go to the Court of Appeals.

MR. LOWE: That's all I want to clear, is that that is what your understanding is because that's my understanding.

THE COURT: That is my understanding, right.

MR. TAIKEFF: I was wondering whether the Government had lost interest. There was a matter I'd like to -- could we invite them back.

THE COURT: Yes.

The conference, bench conference is still on.

MR. HULTMAN: I thought the Court ruled and I assumed that was the end of the matter, Your Honor.

MR. TAIKEFF: Okay. There are two points. I just want {1960} to lay additional foundations on my record so it is complete, and I don't believe the question with respect to 129 was answered. So if I go back, I don't want to be considered to be repeating myself. I'm repeating the question only because there was not an answer. It was interrupted by objection.

Secondly, Mr. Hultman on a number of occasions that I'm aware of has said that a question has been asked and answered. Now, in reviewing the record I find that he makes that statement when indeed no question has been repeated. It's maybe that he feels that a certain subject has been gone into too much and I would trust that if that is his opinion he would state his objection that way so there is no confusion in the record or in the minds of the jury as to what his position is.

I don't want to end up having an exchange with him through the Court over a matter such as that, but I think it is unintentional, but nevertheless unfair for him to characterize an objection one way which is factually unfounded when he has from an advocate's point of view a legitimate basis for making his objection. But he shouldn't misstate what the basis of that objection is.

MR. HULTMAN: Well, could I respond to that, Your Honor?

THE COURT: You may.

MR. HULTMAN: I've tried to do my best and if my memory is correct, and I don't have the transcript in front of {1961} me to find the exact page instantaneous, Counsel, as you can well appreciate, but I would state that to the very best of my ability that the very question, in substance, not exactly may be the exact words from first word to last, of the last question has been asked and answered, and not once but at least twice or more times, and that was the basis, one of the basis for my objection just now.

MR. TAIKEFF: I would just say that if I didn't think that Mr. Hultman was doing his best and what he believes to be, and I don't say that facetiously, appropriate and honest way, I would not have brought the matter up here in private. I would have said some thing about it before the jury.

MR. HULTMAN: I understand, and I will do my best.

THE COURT: Very well.

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

MR. TAIKEFF: May I proceed, Your Honor?

THE COURT: You may.

{1962}

Q I believe, sir, I was up to showing you No. 128 for identification and at that time you had before you both Defendant's Exhibit 83 and 127 and 126 for identification and the question I put to you is whether 128 contains the date June 25, 1975 from page 1, including the word before it and the two words including the punctuation after it? You can lay them over each other and hold them up to the light if you like.

A Yes.

Q Okay.

Finally, would you tell us whether Defendant's Exhibit 129 for identification contains elements from page 6; namely, the case number from the upper left-hand corner, the phrase, "250 yards west," from that same page and the phrase "75 yards" from that same page all as circled in green on 127 for identification?

A Yes.

MR. HULTMAN: Your Honor, could I ask just a question of Counsel at this particular point?

MR. TAIKEFF: No objection, Your Honor.

MR. HULTMAN: Counsel, is it my understanding that Exhibits 126, 127, 128 and 129 are parts of exhibits, proposed Exhibit 83?

MR. TAIKEFF: Yes. Two of them are full pages and correspondence. Each of those full pages are excerpts of the specific material referred to.

{1963}

MR. HULTMAN: Now, Your Honor, I reimpose my objection but additionally that because of the response which Counsel has now asked, just has given to Counsel that 126, 127 and 128 serve no purpose whatsoever. They are merely parts of the exhibit that's already been discussed and ruled upon here so I would enter my objection on each of those for the previous reason and now for the additional reason it's repetitive, serves no probative value, cumulative.

MR. TAIKEFF: Your Honor, before I make any offer I'd like to ask one or two more foundation questions and then make my offer so the record is clear.

THE COURT: You may proceed.

Q (By Mr. Taikeff) With respect to 126 through 129 inclusive, you're satisfied that they duplicate one portion or another of Defendant's Exhibit 83, your 302?

A Yes, sir.

MR. TAIKEFF: First, Your Honor, I reoffer 83 so that the jury may not only compare --

MR. HULTMAN: If it please the Court, at this time I'm going to object to any statements made by Counsel and request we approach the bench.

MR. TAIKEFF: I offer 83 for the jury's perusal, the entire document.

MR. HULTMAN: And I object, Your Honor, for all the reasons that I previously have stated.

{1964}

THE COURT: The objection is sustained.

MR. TAIKEFF: Now, Your Honor, I offer 126 and 127 which are respectively the duplications of pages 1 and 6, that is to say, less than the entire report. Just those two pages.

MR. HULTMAN: And I offer the same objection for all the previous reasons.

THE COURT: The objection is sustained.

MR. TAIKEFF: Now, Your Honor, I offer Defendant's Exhibits 128 and 129 which contain only the small elements from pages 1 and 6 respectively and none of the other words except one or two words sufficient to identify the elements.

MR. HULTMAN: Same objection, Your Honor, for the previous reasons.

THE COURT: Objection is sustained.

MR. TAIKEFF: And finally, Your Honor, I ask permission of the Court to be able to project any or all of the transparencies on the screen so the jury may see what I'm talking about rather than just hear what I'm talking about in questioning this witness further.

MR. HULTMAN: If it please Your Honor, could we approach the bench one more time. I'm going to make an objection.

THE COURT: You've made your objection. The objection is sustained. Let's get on with it.

{1965}

MR. LOWE: May I have just a moment, Your Honor?

THE COURT: The Court has ruled that the matter is irrelevant.

Q (By Mr. Taikeff) As you recall, was there anything special about June 30, 1975?

A June 30 is the date that I dictated my report concerning the June 26th shooting.

Q Anything else special about that day that you can recall?

A Just that I conducted investigation involving the, investigation involving the death of Agents Coler and Williams.

Q In or out of the office?

A At this time I can't recall whether I spent the entire day in or out of the office.

Q Is there anything that you know of that's in existence that would help you remember? A diary or anything at all?

A No, sir.

Q Do you have any means of reconstructing that day in terms of your professional activities?

A The only thing that I'm confident I did that day was dictate my report, as I remember, and that I did continue to work a full day that day.

Q What time did you start working that day?

A At this time I don't know exactly, sir.

Q This was four days after the incident, was it not?

A Yes, sir.

{1966}

Q Do you recall generally what sort of schedule you were working during the first week after the incident? I don't mean from what hour to what hour necessarily but were you working an eight hour day, a 15 hour day?

A Generally, sir, the days were running from maybe an hour to an hour and a half prior to 8:00 A.M. and would go until the evening hours.

Q Did you have any meetings on June 30 with any agents in a group of three or more?

A Well, I can't recall exactly, sir, but there were many conferences that took place during the course of our investigation.

Q I'm talking only about the first four days until such time as I indicate to you otherwise. Do you understand that?

A Yes, sir.

Q June 26th was a Thursday, correct?

A Yes, sir.

Q I want you to focus your attention on that Thursday and the following days, Friday, Saturday, Sunday and Monday. Do you understand that?

A Yes, sir.

Q During that period of time did you have conferences with your fellow agents working on this case?

A Yes.

Q Did you meet with Agent Adams?

{1967}

A Yes, sir.

Q Did you meet with Agent Skelly?

A I believe Agent Skelly was in the area; yes, sir.

Q I asked you whether you met with him, I didn't ask you whether he was in the area. Did you meet with him?

A I don't recall at this time if I specifically met with Agent Skelly.

Q Agent Coward?

A Yes, sir.

Q Agent Hughes?

A Yes, sir.

Q Did you all meet together as a group to discuss the case and how the investigation was developing?

A Yes, sir. As I stated, we had many conferences with many agents, including those agents.

Q Were those conferences, at least in part, scheduled for particular times of day or particular periods in the day?

A Normally they just call a conference, the bosses that were running the investigation.

Q Who were those people?

A That was Mr. Meincke for one, Mr. Zigrossi was there, but I can't recall exactly what day he arrived.

Q Who was the case agent?

A I don't know sir.

Q Wasn't it agent Hughes?

{1968}

A I really don't know who the case agent is at this time, sir

Q Didn't you meet every morning?

A Yes, sir. In a large group.

Q That's what I'm asking you about.

When you met in a group of three or more, how many agents met during those first four days at the morning meetings?

A Normally all of the agents that would be working the investigation would have a conference in the morning.

Q Do you understand that the phrase how many means a number?

A I don't know how many exactly.

Q What's your best estimate?

A I'd say approximately 50.

Q You met in an auditorium?

A No, sir.

Q Where did you meet?

A Met in the building there at Pine Ridge that was opened up. There's a room that's large enough, you sit on the floor and so forth.

Q Did the agents, were the agents free to speak and offer suggestions and comments?

A Yes, sir.

Q Was the development of the investigation from day to day brought to everyone's attention so everyone would know what was going on?

{1969}

A Yes, sir.

Q Did you meet again in the evening?

A On some days we did, sir.

Q I'm talking about those four days only, up to and including Monday, June 30, 1975.

A At this time I don't know if we had a meeting every night those four days, sir.

Q Could you say whether there was a meeting on Monday morning, June 30?

A We were holding regular morning meetings; yes, sir.

Q Did someone preside over the meeting?

A Yes, sir.

Q Was it the same person on each of those four days?

A I can't recall if this was the same individual each day.

Q Can you name the person or persons who presided at any of these large meetings?

A Well, Mr. Zigrossi, Mr. Meincke.

Q Did you have occasion during the period which is under scrutiny right now to speak with any of the BIA people?

A I might have spoken with some of the BI people but specifically I don't recall that.

Q Did you ever speak with anyone by the name of Ecoffey?

A I know Mr. Ecoffey and I have spoken with him; yes, sir.

Q Did you speak with him on the 26th?

A I don't recall if I spoke with him.

{1970}

Q Did you ever read anything which he wrote or purportedly wrote?

A I'm sure I've written things that, excuse me, I'm sure I've read things that he has written; yes, sir.

Q Do you recall whether or not you read a report of his dated June 26, 1975 relating his version of what occurred that day based on his activities and observations?

A No, sir.

Q Would you say that as a general rule, and based upon your years of experience that the FBI hires stenographers who are competent and who do in the main accurate work?

A Yes, sir.

Q In fact, when you cannot recall a date you're satisfied to look at a 302 and rely upon the date that's on that 302, isn't that correct?

A It's contained in the body of the report; yes, sir.

Q Well, you check reports, do you not, before you initial them?

A Yes, sir.

Q And I assume that you check them for accuracy and completeness, isn't that true?

A Yes, sir.

Q And if you see something which you think at the time you're checking on it doesn't belong there, you would ask the stenographer to correct it, wouldn't you?

{1971}

A If I see it, sir; yes, sir.

Q Now you did check your report that has a date of transcription on it June 26, 1975, did you not?

A Yes, sir.

Q And you initialed it, did you not?

A Yes, sir.

Q And if you found any mistakes you had them corrected, did you not?

A If I found typographical errors; yes, sir.

Q Well, sir, can you tell us why that report reflects the fact that it was dictated on June 30, 1975 but shows a date of transcription of June 26, 1975?

A Yes, sir. Because it was a typographical error that I didn't see before I initialed it.

Q But, sir, which of those two dates was the typographical error, the June 26th or the June 30?

A The June 26th, sir.

Q We can agree, can we not, that it's impossible to dictate something on June 30 that's typed on June 26th?

A That's correct, sir.

Q Isn't it a fact that the first four pages of your 302 which is Defendant's 83 for identification was rewritten on June 30, 1975?

MR. HULTMAN: Your Honor, I haven't objected up until this time but I am now. This whole series of questions and {1972} this whole matter was gone into yesterday and I do object.

THE COURT: I will allow the witness to answer that question.

A Can I have the question again, please.

MR. TAIKEFF: May it be read back.

THE COURT: The question will be read back by the reporter.

(Whereupon, the last question was read back.)

A That's not correct, sir.

Q (By Mr. Taikeff) In connection with writing it, when I say writing you understand that I mean either writing or dictating so that it becomes typewritten, do we have that understanding?

A Yes, sir.

Q Because you are the author of that report, are you not?

A Could I see the report that you refer to?

Yes.

Q Yes. No. 83.

A Yes, sir.

Q When you wrote that portion of 83 for identification which is now the first four pages, isn't it a fact that you recorded certain information there which you did not see or hear on June 26th but wrote it up as if you did?

A That's not correct, sir.

{1973}

Q I am referring to Pages 1924 and '25 of the transcript in this case.

I think you said a few moments ago that the reason why the report shows a transcription date of June 26 and a dictation date of June 30th is because the typist made a typographical error, is that correct?

A That's correct, sir.

Q Now, tell me whether or not the following question was put to you and the following answer given in the proceedings which occurred after the jury was excused last night.

The bottom of Page 1924.

Question: Do you now know something that made you say they may be wrong? There is something on your mind that prompts you to use that phrase "they may be wrong"?

Answer: Well, I know that the date on the other 302 that you're referring to, when the stenographer transposed the date from the dictation dates of the transcription date, they inadvertently put the date of the entry, I believe, or the date of the events of the shooting on the one that I wrote.

Did you give that answer to the question yesterday?

A Yes, sir.

Q And were you referring there to the fact that a typographical error was made?

A Yes, sir, transposing the date would be the typographical error.

{1974}

Q Now, when you gave your direct testimony, you referred to the shooting as that of automatic fire?

A Yes, sir.

Q Is that correct?

A Yes, sir.

Q Now, automatic fire refers to the kind of firing that comes from a machine gun or a sub-machine gun, isn't that true?

A It comes from an automatic weapon which in not every case is described as a machine gun.

Q Well, an automatic weapon is one where, if you pull the trigger once but keep the trigger down, and if the gun keeps working, it shoots out all the bullets until the magazine is empty, isn't that correct?

A Yes, sir.

Q Now, neither you nor any of your fellow agents found any weapons or any evidence of weapons that were automatic, isn't that correct?

A I didn't, sir.

Q Do you know anyone who did?

A You would have to ask the other agents.

Q I asked you if you know anyone.

A No, I don't know of any, sir.

Q It is a fact, is it not, that under the law only law enforcement personnel and the military, except in the very special case of someone who gets a special license, can use an {1975} automatic weapon such as the one I described a moment ago, isn't that correct?

A I think that's correct, sir, but I am not absolutely positive of the law. It is not something that I have studied.

Q Well, if you saw somebody with a sub-machine gun out in the field firing at tin cans, with a Thompson sub-machine gun, and you were still a Special Agent of the Federal Bureau of Investigation, would you arrest that person?

A Not right at that point, sir.

Q You would ask him a question, wouldn't you?

A I would talk to him, yes, sir.

Q You would find out whether that person was a law enforcement officer?

A Yes, sir.

Q Or whether that person was in the military?

A Yes, sir.

Q Or whether that person had a very special and hard to get license permitting that person to possess a fully automatic weapon, right?

A Yes, sir.

Q And if the person didn't satisfy you with respect to one of those three, you would arrest that person, wouldn't you?

A Me personally, sir, I would most likely contact the local police agency.

Q To arrest that person?

{1976}

A To do whatever he feels is proper to do with that individual.

Q And if that person started walking away, would you restrain that person's movement?

A At this time I can't say exactly what I would do in that situation.

MR. HULTMAN: Well, your Honor, I would object now as to any further questions as being highly speculative, no probative value and irrelevant.

THE COURT: Well, he has answered the question.

MR. TAIKEFF: I have no further questions on that point, your Honor.

THE COURT: Very well.

Q (By Mr. Taikeff) Didn't you testify on your direct examination and describe the firing you heard as automatic in a conscious effort to prejudice the jury's mind so that they would believe possibly that automatic weapons were possessed by some of the people from Tent City?

A No, sir. I said that because that's what I heard that day, sir.

Q You had examined the weapons, have you not, which have been introduced into evidence?

A I haven't examined them, sir, but I have seen them, yes, sir

Q You have weapons' training as an FBI Agent?

{1977}

A Yes, sir.

Q Are any of those weapons automatic weapons?

A I would have to look at the weapons, sir, that have been introduced.

MR. TAIKEFF: May the witness do so, your Honor?

THE COURT: You may.

(Witness leaves witness stand and returns.)

A Yes, sir, there are two automatic weapons, sir.

Q (By Mr. Taikeff) Automatic weapons?

A Yes, sir.

Q Would you be kind enough to tell us the exhibit numbers -- do you mean semi-automatic or automatic?

A I didn't look at the exhibit numbers, sir; but the one that is on the top appears to be an automatic weapon, and the second one, I believe, can be fired in either a semi-automatic or an automatic position. I don't know that for a fact, but I think so.

Q Did you see any of those weapons before you testified yesterday?

A Yes, sir.

Q Now, do I understand that you distinguish between a weapon which is automatic and a weapon which is semi-automatic, as being two different kinds of weapon as far as mode of fire is concerned?

A Yes, sir.

{1978}

Q Now, a semi-automatic weapon is one that doesn't require any movement of the bolt manually but does require a separate pull of the trigger every time you want a bullet to come out, correct?

A That's correct, sir.

Q Now, when you looked at those weapons before you testified, was it then your belief, as it is now, that two of those weapons were automatic weapons? "Yes" or "no".

A When I first saw those automatic weapons, I knew they were automatic weapons, yes, sir.

Q I see. Would be kind enough to take those weapons off the rack?

MR. TAIKEFF: If he may, your Honor.

THE COURT: You may step down.

(Witness leaves witness stand and returns.)

MR. TAIKEFF: The witness is holding Government Exhibit 37-A and 34-AA.

Q (By Mr. Taikeff) Now, the larger weapon, 34-AA, do you know what that is?

A I know it is a .45 caliber.

Q No, the larger one. I don't mean the larger caliber. I mean the longer one.

A This one here, sir?

Q Yes.

A It is an AR-15.

{1979}

Q What is an AR-15, is that a semi-automatic or an automatic weapon?

A I could be fired in either position, sir.

Q Is there a selector switch on there?

A Yes, sir.