VOLUME XI

Pages 2162-2396

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WEDNESDAY MORNING SESSION

March 30, 1977

Pursuant to adjournment as aforesaid, at 9:00 o'clock, a.m., on Wednesday, March 30, 1977, the Court met, present and presiding as before, and the trial proceeded as follows out of the presence and hearing of the jury, the Defendant being present in person:

THE COURT: At the bench yesterday a Brady versus Maryland motion for disclosure was made; and the Court reserved ruling on it. The motion arose out of the statement in Agent Cunningham's affidavit that he submitted apparently on extradition proceedings in connection with this Defendant, in which he stated in his affidavit that a certain type of expended cartridge was found in the trunk -- was it Coler's vehicle?

MR HULTMAN: Yes, sir.

THE COURT: I would raise the question, first of all, as to whether or not there is evidence that such a cartridge was in fact found in the trunk of the Coler vehicle by someone?

MR. HULTMAN: Yes, your Honor, there was; and I apologize to the Court. I have a brief, pursuant to our discussion yesterday, it is being typed right now; and I apologize to the Court that it is not in the Court's hands right now.

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The only reason for mentioning it, your Honor, is, one, I will certainly respond to any question your Honor has; but maybe it would be more appropriate -- I don't think the issue itself is going to arise again, Mr. Lowe, at least in the immediate testimony right now, won't arise with Mr. Garnmage.

MR. LOWE: No.

MR. HULTMAN: And I would suggest to the Court, if the Court would give us an opportunity to at least present that brief to the Court, that maybe prior to taking the jury up after the first recess, prior to the jury coming in this afternoon that it may be a fuller time to take the matter up, but I will certainly respond to anything the Court wishes.

One, your Honor, the evidence is known by the defense counsel. It was so shown in the last trial and will be shown again. It is there in the 302 Form and so forth, that that round was found by another agent specifically.

THE COURT: I would then ask defense counsel specifically, because the motion was an oral motion, to state specifically what it is they are asking to be disclosed.

MR. LOWE: Yes, sir, I would be happy to.

The testimony -- and again I made my motion obviously from the position of the defense theory and what {2164} we hope to prove and anticipate we will be able to prove with regard to the general development of this case; and in particular, with reference to this one cartridge case, first all, as I mentioned to your Honor at the bench yesterday, this is probably the single most important cartridge case in this entire investigation of all the perhaps hundreds that were found. This .223 cartridge case was allegedly found in the trunk of Coler's car which was, of course, down by the two bodies of the FBI Agents. The Government, we know, from last summer's trial and by just simple logic is going to argue that this cartridge could not have gotten into the trunk of the car except if it were fired by one of the people who killed the agents, and will then try by inference at least to connect up Mr. Peltier with having fired that cartridge since there is at the present time some testimony, if it is believed, that Mr. Peltier was firing an AR-15 from the vicinity of the big goose egg near the "Y" intersection, so that I will just say that the factual logic will be Mr. Peltier was firing an AR-15, AR-15's fire .223 cartridges, a .223 cartridge was found in the trunk next to the dead agent, the agents were killed with a shell out of a like weapon, ergo, Mr. Peltier is the murderer. We recognize that both because the Government has argued in the past essentially also on logic this makes that cartridge a {2165} critical cartridge.

It is also important for other reasons. It is the only cartridge found in a 20 yard radius of that car of the .223 nature. That, of course, leaves a lot of argument to both sides as to why that would be. If there were three shots that killed the agent, why wouldn't you find three cartridges.

So it is critical in terms of the really relevant evidence down at the cars. If, as is the defense theory, that cartridge was salted in the car, if that is an explanation of how that cartridge got there, that somebody put it in the trunk of the car, then it is critical for us to be able to show that the chain of custody, or that an agent like Mr. Cunningham or Lodge or Mr. Hodge, or any of the others of them, either do not have a factual basis for giving their testimony or perhaps raise inferences that they are not being candid with the jury, depending on what develops. That certainly is a roper goal of cross examination in this case.

As to the extent that Agent Cunningham has now said, that he did not find that .223 cartridge but in fact signed an affidavit that said he did -- now claims that and said, "Well, I thought at the time I must have found it, that was my then recollection" -- I think there is a lot of evidence on which the jury could disbelieve {2166} that and think he is lying, similarly I think the jury might believe he is telling the truth; and in order to further develop that issue with the jury, we believe we are entitled at least to have disclosure of who it was that prepared the affidavit and typed in this Paragraph 6 which alleged that Special Agent Cunningham found the cartridge. Was there a covering letter? For example, if a covering letter said something to the effect that "Here is an affidavit, you sign it or else", obviously that would be relevant; and I don't represent that such a covering letter in those words exists. We simply don't know what covering letter exists, if any. That's why we were asking for disclosure.

We believe that any such documentation and the identity of the person who prepared the affidavit would be relevant evidence which would tend to exculpate Mr. Peltier. Obviously, if the covering letter said something to the effect of "Here is an affidavit for you to sign and send back, if you don't sign it you are in trouble", that obviously would be exculpatory. It would tend to discredit the finding of that cartridge.

We believe at the very least we are entitled to the following:

First, we are entitled to disclosure of the name of the person who prepared the affidavit. Now, we can do {2167} this the hard way by calling all kinds of U. S. Attorneys and FBI Agents in Charge and everything and asking them. I would like to think that in the expedition of this case, that would be disclosed to us. I think we are entitled to have it disclosed to us under Brady.

Secondly, we are at least entitled to have it disclosed to the Court what documents are involved so we can examine them under Brady v. Maryland. It may be those documents may not be relevant after we have viewed them.

Your Honor might make some evidentiary rulings that would prevent us showing them to the jury. We can't make that decision until we see the documents.

If the Government would disclose there were no documents, that this was sent to him in a plain unmarked envelope, he just knew instinctively, knew to sign it and mail it, it that's the case, the Government can make that disclosure and put the issue to rest as far as that is concerned.

That's what we are asking, the identity of the preparer of the affidavit, and any documentation which accompanied it when it was sent to Special Agent Cunningham.

We believe at least we are entitled to that in the context of having a fair trial.

THE COURT: Thank you.

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MR. LOWE: Incidentally, your Honor, I would not oppose having oral argument or having your Honor hear argument later on this day, if that would meet with your Honor's approval I would like to think if we do, we would have more than a three minute opportunity to look at this brief that Government counsel would present to the Court; and I would request the Government to give us sufficient time so that we can perhaps again check out some of the cases the Government relies on.

{2169}

THE COURT: In the time frame of this trial how soon do you need the Court's ruling on this?

MR. HULTMAN: Your Honor, I will place it in Mr. Lowe's hand at this moment as I normally do as I get it.

MR. LOWE: In response to Your Honor's question that we depend a little bit on the order that the Government calls its witnesses. There are some other witnesses that will testify about this cartridge. I don't know when they'll be called. We would certainly want to get that information before those witnesses are cross-examined.

Since I don't know when they're planning to call them I can only infer within the next day they will call these witnesses since by the estimations that Mr. Hultman has given us we are nearing the end of the Government's case. So I would think that it ought to be a matter of some urgency to find out from the Government and to have the Court --

THE COURT: And if the Court should rule that this information requested by defense counsel should be disclosed at least to the Court, is that going to result in any time delay?

MR. HULTMAN: No, Your Honor, I don't see any problem of that kind at all. One, I would just plain like to point out, Your Honor, that Mr. Lowe by his own questioning and the preparation, that it was Mr. Lodge that specifically found the documents and he has 302's I believe in his possession that {2170} would so indicate that. So there isn't any question as to what the factual issue specifically was, is or has been.

The only new, and I submit from this point on, it now becomes a collateral issue. I have no, there's not a collateral issue as far as what Mr. Lowe has done to this point, and the Government did not object in any way.

To get into the matter concerning the affidavit and the fact that that is now before the Court as the witness clearly indicated in response to counsel's questions that it was a mistake on his part. But to now go beyond that, and that's the point that I point out in the response here, now gets into all kinds of collateral matters that have no relevancy of any kind as far as this issue is concerned. And I believe that's true under the Agwis case. The witness said it was error and that's exactly what the fact is.

THE COURT. You are getting into argument on the issue right now.

MR. LOWE: Yes.

MR. HULTMAN: I thought Mr. Lowe kind of discussed --

THE COURT: I really want, at this point I just really wanted some factual information disclosed. Number one, as to whether there was such, in fact such a cartridge alone to have been found, and number two specifically what it was that the defense was asking be disclosed, and I do now have that information.

{2171}

MR. HULTMAN: That information, Your Honor is in the transcript also from the last trial. So it's not just something that counsel is discussing here, the issue of the reference as to who found the items.

John, I'm not talking about the items that the affidavit now, I'm talking about the fact as to who found the round. That clearly has been known, known by you, was known in the last trial. That is not -- there isn't any dispute about that, is there? Do you have any dispute at all about that?

MR. LOWE: May I make just a simple statement. There is no dispute that at one point or other, including last summer in testimony, that Agent Lodge claimed that he found the .223. But now we have Special Agent Cunningham in a written affidavit under oath claiming he found the .223 and we're not bound by his statement that he made a mistake and we are entitled to probe that the fact that Agent Lodge said he found this doesn't necessarily mean that he found it. As we note with Special Agent Cunningham there is a factual dispute, and that's the reason that we want to find the information that we seek. And I don't want to get into the merits of the argument. I don't want Mr. Hultman to think this way. There certainly is.

THE COURT: Thank you.

MR. CROOKS: Your Honor, there is one other matter which perhaps would be most sufficiently taken up at this time. {2172} The next series of witnesses that will be called will be the Oregon people concerning the Oregon incident. And I understand that counsel wishes that matter, prior to going into the actual facts, that they wish to make some statement on it. And I would assume that as soon as Mr. Gammage is off the stand we will start calling, perhaps it would be best to raise that right now so we don't, aren't all whispering --

MR. TAIKEFF: Your Honor, I will not burden the Court with repeating the argument which has been made to Your Honor on several occasions concerning evidence of other crimes or in the case of relevant material. The determination of the Court was made concerning the counterweight, namely the possible prejudice.

I don't know what the Government intends to offer in connection with Oregon, but we understand from our own investigation and from pretrial discovery proceedings with the Government that it contained certain elements which either are irrelevant o if relevant are in our view prejudicial. And I think that we --

MR. CROOKS: Well, Elliot, so we aren't arguing across, why don't I state first basically what we intend to show so that you know really what to respond to.

THE COURT: Very well.

MR. CROOKS: Your Honor, basically in a nutshell what the Oregon incident is, on November 14th, and there's been some {2173} testimony going to that already but not to the actual facts of the incident, at approximately 10 :00 o'clock P.M. on November 14, 1975 trooper Griffith of the Oregon State Patrol stopped two vehicles. One was the recreational vehicle, Dodge recreational vehicle, the other was a Plymouth station wagon and Officer Kramer assisted him in the stop, although Officer Griffith is the main witness.

Basically they stopped the vehicles because there had been an all-points bulletin out for vehicles described in this manner, and he pulled the vehicle over, pulled up behind the R.V., got out of his vehicle, approached it with considerable caution. He had with him a shotgun, he order the people to get out of the vehicle, one individual got out. He will describe the individual and we assume that the description will be roughly that of the defendant.

Then he asked if there was anybody else in the vehicle. I believe he also asked the name of the individual and was given a Spanish-sounding name. Then he asked if anybody else was in, some women and I believe some children got out. And about that time the recreational vehicle started pulling away from him.

The man who had gotten out first and who generally fits the description of Leonard Peltier then ran for the fence which surrounds or borders the Interstate highway. As the individual was running toward the fence, or crossing the fence, {2174} I'm not sure exactly which way the testimony will be, that individual fired a shot at Officer Griffith. Officer Griffith fired back twice with his shotgun. The individual escaped over the fence and was not seen again.

The other individuals, the women and children, were taken back, or walked back to Officer Kramer's car and then Officer Griffith chased the R.V. down the highway about a half a mile, three-quarters of a mile. He found the R.V. which had been abandoned with the lights on, motor running, doors locked, or doors closed at least, in the center median of the interstate highway.

Other officers arrived. They fired tear gas into the vehicle. They, I believe, fired a couple buckshots rounds into each ends of the vehicle. In any event they opened the vehicle after they got no response, saw there was no one there. The vehicle was impounded, search warrants obtained and both the Plymouth station wagon and the R.V. were then searched.

In the course of the search the officer found, and by this time FBI agents had already been alerted and were there with federal warrants as well to search the two vehicles. Between the state and local officers they found numerous fire arms, many of which had obliterated serial numbers. They also found, and this of course is the most important, they also found Special Agent Coler's service revolver, and this was {2175} in a paper bag. The paper bag was examined and found to contain the prints of Leonard Peltier.

There were also other prints found in the interior of the motor home which were likewise identical to Mr. Peltier's. Mr. Griffith, and I don't know what his testimony will be, but he probably will not be able to identify Mr. Peltier or give a positive identification because it was dark. He had a fleeting observation to observe under very poor conditions.

I believe that the best that he will come up with, if that, is that he was a man appearing to be similar to Mr. Peltier.

The next incident in Oregon, two young people were parked, I assume doing what young people do beside a railroad track, and an individual comes up and wants a ride. And there's a brief exchange. He's looking in the window, both of these young people were rather terrified, and they exited the scene at a high rate of speed.

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MR. CROOKS: They were stopped by a Highway Patrolman for speeding. They told him what happened. They were taken down to the Ontario police department and shown a picture of Leonard Peltier and I think others and identified him as being Leonard Peltier. I believe the photograph identified as the one taken at King County prior to that time.

In any event, a short time later it was discovered that a ranch house had been broken into. The ranch house was owned by an individual named Eagle I believe. However, staying at the ranch house was a nephew named Barker. Mr. Barker's Ranchero and a 30-30 rifle were stolen. Mr. Peltier's fingerprints were found at the scene of the burglary.

The Ranchero was recovered 100 miles or so from Ontario, Oregon and Mr. Peltier's fingerprints were found on the Ranchero.

Then at the time Mr. Peltier was arrested in Canada, the 30-30 rifle was found in his possession with his prints on it. And also among some of the other items found, I might mention, in the station wagon, in the tool box of the station wagon were some shell casings which had been fired by Special Agent Coler's service revolver so that basically in a nutshell is what the series of events will prove. And perhaps I now defer to Mr. Taikeff and I will respond as to our justification if the Court feels any further argument is necessary {2177} as to these specific items.

We feel all of this series of events are entitled to go into evidence, all being relevant to the flight of Mr. Peltier and also to the obvious relevance of the service revolver and also to the fact that he was resisting apprehension using deadly means.

THE COURT: Mr. Taikeff.

MR. TAIKEFF: First on the question of relevance, Your Honor. I assume that the position of the government is that the relevance, is that the evidence will tend to show flight as evidence of guilt, am I correct about that?

MR. CROOKS: This would be one element; yes.

MR. TAIKEFF: Well, with respect to that portion of the testimony which we're concerned about, I don't know whether the government tends to offer into evidence only the .357 magnum which was found in the paper bag or whether it's the intention oŁ the government to offer all of the weapons which were found in both vehicles. If the answer is the latter, then we identify those other weapons as items which have no relevance in this case and have no purpose except an intention on the part of the government to prejudice the jury.

MR. CROOKS: Your Honor, I might just state for Counsel's edification, we do not intend to put in the other firearms as such. {2178}

We do intend and fully intend to put in photographs of the various other weapons that were seized.

There was also some dynamite seized. We have agreed with Counsel we'll not attempt to elicit testimony or put in photographs of that. However, we do full intend to put in photographs which the Court can see, if he wishes, of the other firearms and the shell casings and live rounds which were found in the search of the recreational vehicle and the Plymouth station wagon.

MR. TAIKEFF: May I ask what the relevance of showing all the weapons is, Your Honor?

THE COURT: You may ask.

MR. CROOKS: Well, I'd be happy to respond. I'll respond now. Basically the obvious relevance is that his shows the nature of this man's state of mind and the length to which he will go to avoid apprehension.

We're talking about a vehicle which is literally loaded with deadly weapons, none of which, or most of which have no possible connection with civilian usage whatsoever. We have a large weapon with several banana clips, all fully loaded. It seems to me it's quite obvious that the relevance of that is to show when we're talking about flight to avoid prosecution, we're not talking about somebody hiding under a bed, we're talking about somebody proceeding down the public {2179} highway loaded to the gills with deadly weapons which he does in fact use against the state trooper who attempts to apprehend him. We think this dovetails completely with everything that we have been showing in this case. More particularly, the deadly response that Special Agent Coler and Special Agent Williams received when they attempted to apprehend him, or apprehend the vehicle, the red and white van, at the scene and it seems to me that the relevancy of that evidence is on its face obvious, that is shows the very nature of the flight and the very nature of the extent to which this man would go to avoid prosecution and avoid apprehension. It again fits back to what happened on June 25th as well as what happened in November.

MR. TAIKEFF: Your Honor, I would like to ask whether it it's the position of the government that the weapon depicted in the photographs last referred to is a crime or whether it it's a weapon that is semi-automatic and therefore not a crime to possess?

MR. CROOKS: Well, I don't frankly know and I frankly don't care. The United States is not going to attempt in any way to argue or to produce evidence of any other crime. The pictures speak for themselves.

We have got a bunch of weapons here that quite obviously from looking at them are not civilian weapons, not the type of civilian weapons that are ordinarily used in {2180} sporting activities. We have a series of deadly weapons and they speak for themselves.

I have no intention of calling a firearm expert to elicit testimony that that may or may not have been a crime. I don't think that's material and that is not a point that we intend to press. I think the weapons speak for themselves.

I think we also will indicate, as I did earlier, however, that most of these weapons have obliterated serial numbers which again I think goes to the defendant's state of mind that here he's carrying around a bunch of weapons which Counsel has been attempting to demonstrate are just nice, ordinary civilian weapons. It seems to be that obliterating the serial numbers speaks something for his intent and his state of mind and I assume that that is a crime, but I do not intend to press that again through any firearms expert.

We're attempting to show state of mind, not proof of crime as such. If Counsel wishes to point out to the jury that the possession of some of these weapons are a crime or argue that, that's fine with me. But I don't --

MR. TAIKEFF: Quite the contrary. Our position is the government may not prove other crimes and that there is utterly no relationship between the presence or absence of serial numbers on the weapons, and any state of mind of the {2181} defendant which is relevant to any issue in this case. We specifically object to the introduction of any evidence concerning the subject of serial numbers.

If, assuming the government is correct, a person arms himself in an effort to flee, and that is a reflection of his state of mind as to his guilt or innocence, that's one thing, but whether the gun has a serial number or not is totally irrelevant to that issue and any other issue in the case.

MR. CROOKS: Well, I think the relevance is obvious in that point, Your Honor. It seems to me that somebody that's going around obliterating serial numbers, the possible reason for obliterating serial numbers on a weapon is so it cannot be traced.

It seems to me that it's the destruction of evidence during the course of the fleeing, that that certainly is obvious. It would be just as obvious as someone carrying evidence away from a crime scene. That certainly speaks to his state of mind and I certainly don't follow Counsel's argument that that does not show anything. It certainly does. What other reason does Counsel have for taking serial numbers off of weapons other than to avoid apprehension?

MR. TAIKEFF: To conceal the source of the weapon. That's the usual reason. And I think by this time Mr. Crooks {2182} should be sufficiently experienced as a prosecutor to realize that. And that has absolutely nothing to do with any issue in this case.

MR. CROOKS: Well, Counsel, are you arguing that the obliteration of the serial number on Special Agent Coler's gun is not relevant? Is that your argument?

MR. TAIKEFF: No. I'm not talking about --

MR. CROOKS: We're talking about a piece of evidence which was taken. Special Agent Coler didn't put that in that RV, we know that. HE was dead.

MR. TAIKEFF: Mr. Crooks is wasting his breath. I am not talking about the .357 magnum, I am talking about any other weapons in the vehicle that may have had obliterated serial numbers.

{2183}

The missing serial numbers on any other vehicles has nothing to do with any issue in this case, even the claim of the Government, that the army of the Defendant was at or present in the proximity of the Defendant and his weapons, is a reflection of his state of mind that he was guilty. The missing serial numbers don't add or detract from the question of his state of mind concerning his belief of guilt or innocence. If anything, it is an attempt to eliminate tracing of the weapon to its source, and that has nothing whatsoever to do with the carrying of the weapon or the proximity of the weapon. It is prejudicial and it is criminal, and to introduce it is to place in the jury's minds evidence which has nothing to do with any of the issues in this case, including the question of whether or not the Defendant was fleeing out of a sense of guilt; and it is on that basis that we object.

Now, I think that takes care of the first phase of it. The second of the three phases that I think Mr. Crooks addressed himself to is the episode involving the two young people. I am not sure what the relevancy is of two young people watching trains, but I look forward with some interest to that particular testimony.

And as to the third aspect of it, I think the Government -- well, I must take a step back, your Honor. I {2184} just realized something from the pre-trial discovery which was not specifically touched upon by Mr. Crooks although he made indirect reference to it.

There are certain objects in the home, in the mobile home which contain the fingerprints of the Defendant. We do not dispute that the Government has witnesses who can testify -- and they are expert witnesses, I trust -- that the Defendant's fingerprints were found on certain pieces of paper, found within the mobile home. It is the content of those papers which are highly prejudicial because they contain in one instance political literature which has no relevance whatsoever. The only reason the Government offers it, I trust they will say, is that they want to show that his fingerprint was there so that there can be no question but that he was in that vehicle.

Well, we don't dispute that the Government will introduce evidence and has evidence of the fingerprint on the piece of paper. The question is, is it necessary for the jury to read the words that were printed on that piece of paper, before the fingerprint ever could have gone on there, in order to prove that the fingerprint was there; and I think the answer is "no", and we object to that.

Now, there is one -- or possibly there are two other pieces of paper with handwritten notations. The {2185} ostensible purpose, as I understand it, of introducing those latter items of evidence is to show that the Defendant's fingerprint was found there.

Now, we understand that the Government likewise will adduce expert testimony concerning the finding of the fingerprint on that piece of paper or those pieces of paper, as the case may be; but what I am concerned with, what the defense is concerned with is the content of the writings which have nothing to do with the issues in this particular case. They are highly prejudicial, they parade before the jury other matter.

Your Honor has been very stringent with the defense with respect to what areas the defense may go into. I think the time has come for your Honor to recognize that if the Government doesn't have any evidence of the Defendant's guilt on June 26th, it should not be able to prove or get the verdict it wants in this case by proving other things which have nothing to do with those events and nothing to do with any issue which arises out of those events.

Now, if the Government wants to show that there was a piece of paper or two pieces of paper or three different pieces of paper, and on a microphone that was usable with a radio in the mobile home, all of which have the fingerprint on it, we have no objection to the offer of that {2186} evidence. What we do object to is putting in the piece of paper in the guise of showing the jury what piece of paper the fingerprint was on. The jury can't see the fingerprint on the piece of paper anyway. The jury has to rely on the expert. There is no way in the world that the jury could look at that piece of paper and say, "Oh, well, the expert is wrong. This is not Leonard Peltier's fingerprint."

Now, your Honor won't let the jurors look through the telescopic sight, and every juror in the jury box has two good eyes and could tell whether or not the agent's testimony was accurate, that he could see a person in detail enough to identify him at a half mile distance. Now, I am wondering what possible rationalization could have been offered for letting the jury look at a piece of paper. The only thing that the naked eye could detect is the printing or the handwriting on a piece of paper. The jury cannot see the fingerprint, so there is no reason in the world, unless the jury wants -- unless the Government wants the jury to see the contents of those papers which do not relate to the facts of this case; and we, therefore, object to the introduction of the pieces of paper themselves.

The last item I would like to address myself to before ask your Honor for an opportunity to consult with {2187} Mr. Lowe is that with respect to the last phase of Mr. Crooks' presentation, there is proof there of a burglary; and I think that the Government's proof should be tailored in such a way as to not present to the jury the fact that the Defendant may have committed a burglary because that is proof of another crime. The finding of his fingerprint at another location establishes his presence in that location. It is not necessary for the jury to specifically resent the evidence in such a way as to imply that the Defendant committed a burglary, because that part of it is not necessary.

We understand that the Defendant is alleged to have been in that location. We understand that the Government has a right to prove his presence in a particular location at a particular time; but it is not necessary to dress it up with a criminal accusation, and that's what the Rule concerning proof of other crimes is concerned with.

Now, if I may have a moment to confer with Mr. Lowe, Your Honor, I would like to take that opportunity.

THE COURT: Very well.

MR. TAIKEFF: Thank you.

(Counsel confer.)

MR. TAIKEFF: There are two points that my colleagues urged me to call to your Honor' s attention.

The first is that there is already in the record, or {2188} if it isn't in the record it certainly will be by virtue of the stipulation that has been worked out between the prosecution and the defense, the fact that the Defendant was subject to arrest pursuant to a warrant in connection with another case. As such, his flight may have been as a result of that because that is the basis upon which they offered that evidence to begin with; and so it is confusing the jury to offer this evidence which is chocked full of all sorts of prejudicial elements in an effort to prove his state of mind when in fact they have already entered or proposed to enter into the record proof of the fact that he was already in flight for a year and a half before the June 26th incident; and they seem to want to have it both ways at the same time.

Secondly, your Honor, it has been our position -- and it is spelled out in the trial brief -- but just to make sure that there is no misunderstanding as to those aspects of the evidence which we believe the Government has a legitimate right, once your Honor makes his ruling about relevancy, to introduce into evidence, we are prepared to enter into any stipulation or concession that the Government thinks is necessary for us to enter into in order that the flow of their proof not be hampered.

We repeat that offer so that the record is clear.

MR. CROOKS: We will rise again very briefly, I trust, {2189} Your Honor.

As I hear counsel, apparently they have backed off basically on 90 percent of the point that they were raising in their pre-trial brief. Apparently now they are arguing about how much of the detail we can put in. Apparently they now concede the obvious relevance of this chain of events.

It seems to me that -- well, one point specifically, counsel raised the question of certain paper. I assume that he is talking about the radio code, and one of the radio codes does have Mr. Peltier's fingerprints on it. The other radio code does not, but this will be offered not only for the print but to show the communication between the two vehicles. They have identical radio codes which are not the usual 10 code which is the standard CB code; but we have a five code which details many things and set out in a code form; and one of these was found in each vehicle, and certainly is relevant to show the -- not only the tie-up between the two vehicles, but the use of radios in avoiding apprehension, and again goes directly to the flight. So on that point I think the obviousness or the relevancy speaks for itself.

With regard to the other specific items, I think that's premature. If counsel is just arguing about details, that certainly could be handled at the bench, {2190} as to whether we use one piece of paper or another piece of paper but it seems to me that counsel has in effect conceded the obvious relevancy of this chain of events and showing the flight part of it. It certainly -- I can't really, I almost can't believe counsel's assertion that the jury might be confused between the flight from Milwaukee and the flight from the scene. No. 1, I don't see the difference, and No. 2, we have got numerous witnesses who have already testified that he was in flight when he left the scene; and this is obviously part of the continued flight. I, for the life of me, can't understand how counsel feels that there is some difference. Flight to avoid prosecution is flight to avoid prosecution. Using a deadly weapon to assault the officer who attempts to apprehend you is vitally relevant to the Defendant's general state of mind, and apparently counsel has pretty much conceded that now.

MR. TAIKEFF: Does your Honor understand what our position is, that we concede on the question of relevance?

THE COURT: I do understand what your position is, not that you concede to the condition of relevance. If the Court should hold the evidence is relevant, certain evidence is relevant, that you are prepared to stipulate?

MR. TAIKEFF: Yes, I understand that.

{2191}

I just wanted to point out to Mr. Crooks for his edification that usually radio codes, to begin with, digit 10 as he alluded to, Indian people have been deprived for so long, they couldn't afford a code that begins with 10, so they use a code that begins with 5.

THE COURT: The Court will rule on that motion prior to the time that the evidence is presented.

The jury may be brought in.

(Counsel confer.)

(Whereupon, at 9:45 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:)

THE COURT: The other day I kept the jury waiting 70 minutes. Today I kept you waiting only 45 minutes. I am improving.

The delay again was the result of legal matters that had to be argued out of the presence of the jury.

MICHAEL GAMMAGE,

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

MR. LOWE: May I continue my voir dire, your Honor?

THE COURT: You may,

MR. LOWE: I believe at the close of the day yesterday I may have started to discuss an exhibit. I am going to start at this point rather than take a chance that {2192} something might not have been said, and I will show you what has been marked as Defendant's Exhibit 135, Mr. Gammage, and ask you if you have seen that document before and are familiar with it?

THE WITNESS: (Examining) Yes, I have.

MR. LOWE: And will you tell the jury just generally what the nature of the document is?

THE WITNESS: This is a laboratory report from the Federal Bureau of Investigation to our office in Wichita, Kansas. It specifically mentions four items of evidence that were submitted to the Federal Bureau of Investigation Laboratory for their examination.

MR LOWE: All right. Now, there are four weapons there which are designated K-39, K-40, K-41 and K-42, and they are listed and described in the document, are they not?

THE WITNESS: Yes, sir, they are.

MR. LOWE: And are those four items which you either personally found or had delivered to you by somebody else at the scene of this explosion on the Kansas turnpike?

THE WITNESS: (Examining) Without referring to my notes, regarding K-41 and K-42, I would say, yes, they are

MR. LOWE: I am not trying to trick you.

Did you personally deliver those four weapons to the {2193} FBI laboratory in Washington, D. C.?

THE WITNESS: I personally delivered the four weapons to our laboratory in Washington, D.C.

MR. LOWE: All right, and did you receive any of those weapons back again from your laboratory or from someone else at a later time?

THE WITNESS: I personally did not.

MR. LOWE: Did your office in Wichita?

THE WITNESS: I believe that -- without referring to my notes, Mr Lowe, I believe only -- we only received K-41 and K-42 back; and according to this it says, the report, K-40 was received in our office. I am sure we got it back. I just don't remember right now.

MR. LOWE: The point I am making though is these weapons that you found at the scene of the explosion are the ones that are referred to in this report, certainly that is true of K-41 and K-42, and you believe it is also true as to K-39 and K-40, is that correct?

THE WITNESS: Yes, sir.

MR. LOWE: I ask you to read down to the result of the examination, and the second full paragraph under that; and ask you if that does not state that none of the ammunition components recovered at the RESMURS scene -- and I don't think it has been brought out what the RESMURS means. Do you know?

{2194}

THE WITNESS: Only by what I have been told.

MR. LOWE: Can we stipulate that RESMURS is an abbreviation used by the FBI to mean Reservation Murder Scene, or some similar description of the area on Exhibit 71?

MR. SIKMA: Yes.

MR. LOWE: This letter states: None of the other ammunition components recovered from the crime scene could be associated with specimens K-40 through K-42 -- that says that in that report, does it not?

THE WITNESS: Words to that effect, yes, sir, it does.

MR. LOWE: All right.

{2195}

MR. LOWE: All right. On the basis of this information, Your Honor, we would renew, or I would state that my objection, which I made yesterday to any questions being asked about K-40, K-41 or K-42 be sustained since this report shows on its face that no ammunition components recovered at the crime scene could be associated with those weapons.

Now, at this point the Government has not laid a foundation for asking any questions about those three weapons beyond what they've already elicited, and that is just a general description of all of the items that were observed at the scene of the explosion. And at this point we believe that there is no proper foundation for having any questions asked or any introduction of K-40. And even if the Government does not offer K-40 or 41 or 42 at this time into evidence, we believe that even asking questions about it would not even be proper.

MR. SIKMA: Your Honor, counsel is referring to a report made on October 31, 1975. However, at the time the questioned item, which is Government Exhibit 34-B --

MR. LOWE: I think you'll find the item is 34-A if you're talking about the weapon.

MR. SIKMA: No, the questioned item. That's a known "K" number, Mr. Lowe.

34-B which is a .223 casing found in the trunk of SA Coler's bureau vehicle has "Q" number, which is not {2196} included in this laboratory report in which the Government will offer to connect up at a later time and show that the examination of that was made with a group of cartridge casings found at a later time. So while as of October 31st this information is true.

The Government will offer proof to show that at a later date when the cartridge casings were tested that it does connect up with Government Exhibit 34-A.

MR. LOWE: Could Mr. Sikma state what later date it was that this was discovered or allegedly found?

MR. SIKMA: It is not, it was found as of the date that Mr. Lodge conducted his --

MR. LOWE: I meant the connection that you allege between the cartridge and the weapon. What date was that allegedly found?

MR. SIKMA: Your Honor, this is in reports given to defense counsel. He's had this material since the beginning of discovery proceedings and it's been pointed out specifically which report it's in as well as it's been pointed out specifically which item it is. I don't have it precisely at hand at this time as to the date of those items.

MR. LOWE: Your Honor, I would point out that in dealing with the evidence which is in, has been admitted by the Court to this point, we have testimony, we have evidence in the affidavit for example of Mr. Cunningham that states {2197} this .223 round we're talking about was delivered to the FBI laboratory in Washington in July of 1975. This report is dated October 31st. It is after they've had that cartridge for some four months, and this report does not refer to any "Q" numbers . It says that none of the ammunition components recovered could be associated with specimens K-40 through K-42.

Now, I think that provides a factual basis right now for the Court finding that at this point in trial there is no foundation. Not that the Court doesn't know whether there's any foundation or not, but the evidence right now is that there is no foundation. And until such time as the Government presents foundation it would be improper for this witness to give any testimony about that weapon. And we are not prepared to accept representations what might be proved later in the trial, not because I don't think perhaps Government counsel thinks that that will happen, but because we don't believe it will happen.

MR. SIKMA: Your Honor, I would submit that the defendant's argument at this point is improper. The defendant is very familiar with the evidence which will be adduced during the course of this trial. He's very familiar with the time sequence. He's very familiar with the items that were presented earlier.

MR. TAIKEFF: Your Honor, I don't know whether Mr. Sikma {2198} misspoke. Did he mean to say that defendant or did he mean to say the defense?

MR. SIKMA: Defense, Your Honor.

MR. TAIKEFF: All right. I trust that Your Honor will instruct the jury concerning that the inappropriateness of any reference to what the defendant may or may not know personally.

THE COURT: Counsel approach the bench.

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

MR. TAIKEFF: Your Honor, our motion is that that may be a comment on on his fifth amendment right.

THE COURT: I'm aware of what you are stating.

This is an argument really that should have been made before the jury was brought in.

MR. SIKMA: Well, that's the point.

THE COURT: It should have been made before the jury was brought in.

MR. SIKMA: That's the point I'm raising, Your Honor. I didn't know what counsel was referring to here. I mean I didn't know that this was the nature of the voir dire that this, that counsel wasn't going to raise with this witness, because he has been aware of those items.

THE COURT: Frankly I'm a little confused here. Now, you, what is there, K-40, 39, 40 and 41 and 42. I have not {2199} seen those exhibits.

MR SIKMA: Okay. The K-40 is the .223 that was found in Wichita, Kansas. That is Exhibit 34-K. That is K-40.

THE COURT: That is what?

MR. SIKMA: K-40.

THE COURT: I got that.

What is that?

MR. SIKMA: It is the way of the FBI laboratory designating --

THE COURT: I know what that is, but what does it represent?

MR. SIKMA: It represents the .223 that was found in Wichita, Kansas.

THE COURT: .223 what?

MR. SIKMA: AR-15.

THE COURT: The rifle or the cartridge?

MR. SIKMA: The rifle, the rifle itself.

MR. LOWE: K-40 is Exhibit 34-A.

MR. SIKMA: Yes.

MR. LOWE: Before it was given an exhibit number. So there's, as a matter of fact I think K-40 is written on there perhaps somewhere.

MR. SIKMA: Yes, it is.

The laboratory, that refers to a known item.

{2200}

THE COURT: What is 41 and 42?

MR. SIKMA: One of them is the .308 which belonged to Coler. I don't know which one.

The others referred to are the weapons that we have not offered into evidence.

THE COURT: It is your intention to offer them?

MR. SIKMA: No, it isn't.

Mr. Lowe brought them up. I didn't raise that.

MR. LOWE: Well, Mr. Gammage mentioned four items and I just --

THE COURT: What about the .308?

MR. SIKMA: The .308 is in evidence, Your Honor, and it's stipulated that that is Special Agent Coler's weapon that he had with him on the 26th.

THE COURT: And that is Mr. Coler's weapon?

MR. SIKMA: Yes, sir.

THE COURT: Well, then what is it that you intend to bring out from this witness's testimony at this time to which Mr. Lowe is objection?

MR. SIKMA: Okay. This witness found the AR-15 and he delivered it to Washington to the firearms laboratory, the FBI.

THE COURT: Is that the .223?

MR. SIKMA: Yes, sir. .223, AR-15. .223 refers to the caliber. AR-15 refers to the designations.

{2201}

We intend to show that the chain of custody of this particular weapon with this witness because he found it and delivered it to the laboratory. Then the laboratory compared the firing pin and bolt of this weapon and the impressions which they would make in the ejector marks with the .223 round found in the trunk of Coler's car, and they matched.

THE COURT: This is the later report that you are talking about?

MR. SIKMA: This is the later report that we're talking about.

Mr. Lowe brought this up. I didn't know he was going to bring this up and he argued it to the jury before I had really an opportunity to object.

I had no idea that -- I don't know if he wasn't aware of the later report. I'm sure that he was aware of the later report. And my objection is to the fact that this is argued in front of the jury. The reason I argued it in rebuttal is because it leaves an unfair inference with the jury, and I think they ought to be instructed as to the fact that these are legal issues and not factual issues which are properly raised at this time.

THE COURT: And you say you are going to tie this up in a later report? Mr. Lowe says of course you will not.

MR. SIKMA: Well, there's no question about it that we will tie it up in a later report. This piece of evidence {2202} which was found in the trunk of Coler's car has a "Q" number which means it is a questioned items.

It has a "Q" number of something like, oh, well over 2,000 which means that the firearms examiner had over 2,000 items to compare with the various firearms that were found or connected with the scene. Since this firearm was not found until September this examination, comparing with this item, did not begin until after September 12th.

So this comparison was not made until I think it was February. Yes, it was in February that this report came out. At least that connected 34-A to 34-B. February of '76, yes, sir.

MR. LOWE: May I respond, Your Honor?

THE COURT: You may.

MR. LOWE: I think Your Honor again, Your Honor, I would like to emphasize in reviewing this evidence frequently with routine evidence that is really just foundation or collateral. The Court will take informal procedures and have representation of counsel to be connected up and allowed into evidence and so forth to expedite matters, but this cartridge and this weapon are the two most important items of evidence in this trial because it is through these that they hope to show Mr. Peltier's connected to the death of the agents.

And I explained about the cartridge in the trunk. This {2203} weapon will purportedly be shown to be the weapon that fired that cartridge. That will be the Government's position and they will offer evidence to try to prove that. That is why it is absolutely critical the court require the most stringent proper legal standards of proof with regard to these including the normal sequence of proof and not taking any shortcuts.

Now, we know that on October 31st that the item just referred to, Exhibit 135, he said that at that point no components found in the crime scene area could be identified with K-40, the other weapons also. But K-40 now by that time, this single .223 cartridge which is Exhibit 34-B had already been in the possession of the FBI for something like four months. We believe that that places a significant fact issue by itself. But Your Honor must be aware of the dispute already raised by Mr. Cunningham that raises some question about how that item was handled.

Now, the Government, and we certainly know by discovery that there is a later report in February of 1976 which purports to show that on some sort of re-examination, I guess they now miraculously discovered that the .223 round in Coler's trunk was fired in this particular weapon four months after the October 31st report at a time when it was obvious that the significance of that round was going to be of paramount importance in the Government's case.

Now, we feel we are entitled to take this in ordinary {2204} sequence in order to first of all, challenge whether there was any testing made at all of that round in support of the February report. We believe that any testimony about this weapon before a proper foundation has been laid would be highly prejudicial and would be improper.

Now, at this point you do have sort of a problem of the chicken and the egg that Your Honor eluded to the other day. That is, at some point you have to introduce an item and at some point you have to prove that tests were run. For the purpose of showing chain of custody this man would obviously have to testify that he found the items and he turned it over to a laboratory in Washington. He has already testified to that on my voir dire. That's not disputed at this point. So that the legitimate purpose of him testifying about this weapon has already been served.

Now until and unless the Government produces evidence that this weapon was actually connected to that .223 round or any other ammunition components at the crime scene it would be improper for the Government to adduce any further testimony about this weapon in any way. That is our position.

We believe that in the normal sequence that should be required along with the proof. In other words, he's already given testimony about this weapon that the Government legitimately can request right now, and we believe that further {2205} questions on this weapon should be limited until they make a connection. We do not accept offers or stipulations or representation about what they will prove because it will be hotly disputed. That doesn't necessarily mean that Government counsel doesn't believe what they are saying is true. It really means that we do not believe that Government counsel is correct. And we believe that this is part and parcel of this conspiracy to manufacture evidence against Mr. Peltier.

Now, the Government counsel doesn't accept that, and the Court may not accept that, but that is an essential part of our defense in which we are entitled to establish. I've addressed Mr. Sikma's response on the first issue.

The second issue I must mention at this point is that this is so essential to our defense, this is a critical issue in this trial. For Mr. Sikma to make a comment that he made in front of the jury is irreparable, personally irreparable in point. We move for a mistrial, irreparable prejudice on the conduct of the defendant's fifth amendment rights.

THE COURT: Is this the comment that --

MR. LOWE: That the defendant knew.

THE COURT: -- that Mr. Taikeff referred to?

MR. LOWE: Yes, sir.

THE COURT: I don't even recall what the comment was.

MR. SIKMA: I apparently, instead of saying defense, {2206} I said defendant and I --

THE COURT: On that before I, first of all your motion for a mistrial is denied.

Secondly, before I decide whether or not I do instruct the jury on it I would ask that you get, secure some time during recess or noon or sometime from the court reporter the exact wording that counsel made and give me the instruction that you feel should be given to the jury.

MR. LOWE: All right, Your Honor.

THE COURT: Now insofar as .223. In view of the position taken by the defense and the significance that they attach to it, the Court will then require the Government to proceed with the customary foundation before questioning this witness on that matter.

MR. SIKMA: Your Honor, might I ask one further thing of this, however. I would point out that the evidence will show, apparently we're going to have to show this, but this item was mailed with a number of other items to the laboratory during the month of July. It was delivered with Special Agent Cunningham. I would also indicate that there is no other way. We did not intend to offer this at this time, but in order to identify it I believe the Government has a right at this time, in order to show this witness's inspection of this particular item of evidence, in order to show the chain, and in the normal, ordinary course of chain of custody {2207} of an item which is delivered to our laboratory. I believe we should have an opportunity to ask the witness to identify it fully so that there's no question in the mind of the jury that this was the item that he recognized, what kind of item this was or what kind of weapon this was in delivering it to the laboratory in Washington, D.C.

Another thing, Your Honor, that I think is relevant in connecting it up is the evidence will show that this particular weapon was found right in the same vehicle, in the same explosion, the same incident with a weapon which the defendants have stipulated was owned by Special Agent Coler, or not owned by, was his weapon.

They have also agreed to stipulate that it was with him at the time he met his death on June 26, 1975. I would think that this alone, with what the Government has proffered by way of testimony, that a cartridge casing from his trunk be directly connected up. Whether there are some issue of act with regard to what the defendants have stated here, I would not state that there is no, that we have established extraordinary connection between this item and the items found in the crime scene.

The only link, the only small link in the chain at this point is the testimony of our expert which would come at the end of the trial.

Are then we, before we can ask this witness further {2208} questions about this weapon, required to recall this witness?

THE COURT: I think that would be the problem that you're going to be faced with.

MR. LOWE: Let me just clear the record on one thing, Judge. You said this item was mailed. You were referring to 34-B? You meant the cartridge, not the rifle?

MR. SIKMA: No. That was carried to Washington, D.C.

Does counsel have any objection to my having this fully identified by this witness at this time?

MR. LOWE: We object to any testimony that will go into details and emphasize in the jury's mind that this is an AR-15, that it's a .223, and other elements about that at this point.

This witness has stated that the four items he describe were taken to the laboratory in Washington. At this point that's all the foundation they need in order to do any linking up with their expert who will testify whether or not this weapon was connected with any of the cartridges or not. And we've got that in the record now. To do any more would be to emphasize this weapon in the jury's mind before it becomes an item of evidence, and I would object to that. I would state further --

THE COURT: You'll have to call him back.

MR. HULTMAN: Your Honor, something I want to say before we leave the stand.

{2209}

MR. LOWE: On this item?

MR HULTMAN: Yes, and in general.

There's been all kinds of discussion, Your Honor, about chain of custody and foundations. And I want to put in the record here and now that in pretrial discussions between all the counsel there were specifically only six items for which there was any issue with reference to chain. Those were listed by Mr. Lowe on a document given to me, and I want to read those into the record so if there's any question or any issue --

MR. LOWE: That's fine.

MR. HULTMAN: Exhibit 16, Exhibit 30-A, Exhibit 38-B --

THE COURT: 30-A or 38?

MR. HULTMAN: I'll reread them again, Your Honor. Exhibit 16, Exhibit 30-Able, 30-Able, Exhibit 38-Baker, 38-B, Exhibit 67-Baker, 67-Charley and 67-Dog. The unequivocal understanding of all of the parties, counsel prior to this trial, it's beginning with testimony the jury thinks were the only six exhibit items on the exhibit list, and we've got all kinds of argument back and forth. I want that in the record. If there's any no re issues about exhibits and chain and so forth the record will clearly show what was the clear understanding of counsel.

MR. LOWE: May I make one addition to that? We approached the bench the other day and I advised Your Honor {2210} that in view of information that had come to us, and I was of course referring to the Cunningham affidavit, that we were going to require a proof of chain of the 34-B cartridge. And I wanted to tell counsel before he had witnesses on that, he had lost witnesses or been prejudiced in any way, but I think I stated that we would be willing to accept stipulations to what various witnesses would testify if they were called, we could discuss that, but that we couldn't just make a blanket stipulation.

Now, if the stipulation we made in pretrial was made in good faith on the information we then had, I did not know about the Cunningham affidavit until it was given at 3500 material several days before he testified. And obviously that changes the whole question of stipulation and in an air that I never could have anticipated. I'm not now saying that we are going to stipulate to anything of chain of custody. But merely we want the Government to make a showing to us, if they would, of what the chain is, and we may be able to stipulate the entire chain.

But we feel that was made in good faith and it was discovered later and -- may I just confer a moment?

(Defense counsel conferring.)

MR. LOWE: The other item is this Exhibit 34-A. As I say, because of the Cunningham affidavit it puts things in a different light. We were both making stipulations in order {2211} to try and save a lot of time, and I think we have. We've stipulated on ninety-five percent of the Government's exhibits, I would guess, or ninety percent of them anyway. But as to 34-A and 34-B we simply cannot stipulate to the chain in view of this affidavit which was given to us in 3500 material.

But all other stipulations are in effect and we're not backing off of them. I think also, though, to make Mr. Hultman's statement complete you should understand, Your Honor, that when we say chain of custody we had an agreement that that meant from the finder of the item through any subsequent handling, whether it was testing or into the courtroom or what. But we weren't stipulating to anything else what took place prior to the finder making a finding.

MR. HULTMAN: We wouldn't even discuss that. Be no reason to discuss that, that's right.

MR. LOWE: That the person it was --

MR . HULTMAN: One last comment for the record, Your Honor.

MR. TAIKEFF: It's the next to the last comment, Mr. Hultman.

MR. HULTMAN: I raise this, not raising any question of good faith on the part of either of the parties, I just want the record to show what, so the court would know what the understanding was.

Secondly, I want the record to show that the items {2212} with reference to which counsel has been referring, even though they may not have come to counsel's personal private attention, I can't attest anything there, I don't know, but all of those have been in the possession of counsel at a long time in terms of discovery. That's the only point I'm trying to make.

John, you didn't have to wait until you received a given 302 to make that particular announcement. I'm not saying that you didn't, that's not the point I'm saying.

MR. TAIKEFF: You can't look at all of the papers at the same time.

MR. HULTMAN: I just want it to be known on the record that the material itself, discoverywise, including all of the reports, all of the things that you've been presenting were in the possession of defendant's counsel or their representatives.

MR. LOWE: You are speaking from the last year's trying?

MR. HULTMAN: And this time, John?

MR. LOWE: Wait, wait, wait. But do you mean that we still had them from last year, not that you had given some of these earlier?

MR . HULTMAN: Also in the reports.

MR. TAIKEFF: We just couldn't look at -- We have two and a half file cabinets full.

MR. HULTMAN: My point is not that you viewed it {2213} personally. I'm just saying for the record, so that the record will show that the materials were available to you, you had the opportunity, that's all.

MR. TAIKEFF: That's true. I want to add one thing to Mr. Hultman's earlier observation, not by way of contradicting him, but supplementing it.

We reached the stipulation on dozens of items sometimes as to ultimate facts, in many instances as to chain of custody and foundation. It was predicated to a large extent upon Mr. Hultman's representation that he had a sufficient series of witnesses who could lay in any foundation or fill out any chain. There's no question in our mind that when he made those representations he was certain that in every single instance there wasn't a question or a blemish.

In a case where there are more than a hundred Government exhibits that revelations in the course of the trial will show that one or two items thought not to be in dispute are not disputed. And I will trust that the Court will not think that the defense is going back on a good faith agreement between counsel.

THE COURT: I understand.

MR. LOWE: The only other thing I saw a lot of documents last summer, and I'm sure Mr. Hultman did also, that I have long since forgotten. Whether I saw them or not, and in preparation for this trial, the first time I saw this affidavit {2214} when we got the 3500 material. If we had it in our two and a half file cabinets, we may very well have. I certainly wasn't conscious of if at the time.

THE COURT: Very well.

{2215}

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

THE COURT: We are now ready to proceed with the testimony.

Q (By Mr. Sikma) Mr. Gammage, you indicated in your testimony earlier that along with the weapons that you found, you found an M1 carbine, is that correct?

A Yes. That is correct.

Q Is that a regular M1 or is there some difference between an M1 carbine and another type of M1 rifle?