VOLUME XII

Pages 2397-2607

{2397}

THURSDAY MORNING SESSION

March 31, 1977

9:00 A.M.

Whereupon, the following proceedings were had and entered of record on Thursday morning, March 31, 1977 at 9:00 o'clock, A.M. without the presence of the jury, the defendant being present in person:

THE COURT: Before the jury comes in, apparently we have one or two housekeeping matters.

Is the United States ready to make a report on the disclosure motion, Brady v. Maryland disclosure motion?

MR. HULTMAN: Yes, Your Honor. The government is prepared and will disclose but we certainly take no position that we're ready to under Brady. We still contend it has no applicability. I wouldn't want the Court to believe that's the basis upon which we're making the disclosure. We're just plain making it.

THE COURT: You're making it reserving your right not to make it?

MR. HULTMAN: I want the Court to know --

THE COURT: I understand.

MR. HULTMAN: I'm not making it because of any basis of Brady v. Maryland. The only point I want to make, the government is voluntarily making it because the request has been made and we have tried to do that in every instance in this case, I think, with no exception, up to this particular {2398} time including that.

Pursuant to the specific request by Counsel with reference phrased as Brady, the request was made as to who was it that prepared the Affidavit and I am prepared to respond to that as to respond in greater detail.

First of all, Your Honor, this matter took place back in the month of February of 1976 and I would submit to the Court that this was prior to any time that I was involved in the case and so I'm not speaking from personal knowledge. I'm speaking from inquiry that I have made pursuant to request yesterday.

I would indicate to the Court that I believe that what I'm about to say is absolutely accurate, although I want the record to show I'm not speaking for my own personal experience in it.

Proceedings for extradition were in the process at that time. In fact, continued up until December of 1976 when late in December, and I don't know the exact date, the defendant was extradited in fact from Canada to the United States and then resulted in proceedings up to where we are now.

During the month of February there were proceedings that the transcript would indicate, and again because I didn't participate in them I'm not familiar with them. There were specific proceedings in Canada and the Canadian authority {2399} who is handling those proceedings is a gentleman by the name of Halprin. I think Counsel would recognize, his name appears in the transcript in various places. He, Your Honor, I don't know his official title, he's somewhat the equivalent of the United States Attorney in Canada for that particular province which is the province north of Seattle. I believe it's British Columbia if my memory is correct.

In order to prepare some immediate proceedings that were about to take place, because of the time frame that was involved, Mr. Halprin came to Rapid City and there prepared documents from evidence that he viewed and 302s he looked at and so forth and dictated the particular affidavit that Counsel has asked who in fact prepared it. That then was sent, and I have a copy of the cover letter and I'll give Counsel a copy of it, the Affidavit itself was then sent from the U.S. Attorney's office, not the main office but the one in Rapid City where the events we're talking about took place and Bruce Boyd, assistant United States Attorney in the district of South Dakota was in that office and he prepared the cover letter which in fact sent the document to Mr. Cunningham and I would read the cover letter that went and I think it then would lead to the testimony which was elicited on the stand here in the courtroom and would indicate the procedure.

{2400}

The letter from Mr. Boyd stated, it's dated

"February 27, 1976

Special Agent Courtland Cunningham

Federal Bureau of Investigation

J. Edgar Hoover Building

Washington, D.C.

RE: United States v. Leonard Peltier

Dear SA Cunningham:

Enclosed please find the original of an Affidavit pertaining to the extradition proceedings now pending against Leonard Peltier. Please read the Affidavit and make sure that it is true and accurate to the best of your recollection. If the Affidavit meets with your approval, please go before the United States District Court Deputy Clerk or Clerk and sign the same under oath. Have the Deputy Clerk fill in the appropriate day and her signature along with the seal of the Court. Immediately below the lines provided for your signature and that of the Deputy Clerk there is the certification of the Federal District Court Judge sitting in that District. Please have the Clerk of Courts or someone there locally fill in the appropriate blanks and have the United States District Court Judge sign the name. I believe the blanks are self-explanatory, however, if some confusion exists, please call the United States Attorney's Office in Rapid City, South Dakota at FTS 72-1475 or commercial 605-342-7822.

{2401}

We would appreciate your expediting the signing of this Affidavit and returning the same to this office at the earliest possible moment.

Very truly yours,

WILLIAM F. CLAYTON

United States Attorney"

That then leads to the exact testimony that was in in the courtroom that Mr. Cunningham testified to. Therein, Your Honor, I would just add that this was in February of 1976. I do know of my own knowledge that in the months of March, April and May and then during the course of the trial where the issues, only the defendants were different as far as this case. That in discovery there all of the 302s, 302s and all of the lab reports concerning the objects we're now talking about and concerned with furnished to Counsel for the defendant and I would note that two of those Counsel who are sitting at the table right now were Counsel at that particular time, Mr. Ellison and Mr. Lowe. I no way am trying to infer to bind this case in any way but just a matter of knowledge within the reservoir of knowledge known and by their organization that is constantly referred to here, not referring to Mr. Lowe's organization, but an organization know as WKL, the Wounded Knee Legal Offense-Defense Defense Committee and the same investigator that was in that particular proceedings was the same investigator in this particular proceedings.

{2402}

Those materials included a 302 report which was dated, interview 3-09-75, and transcribed July 7, '75, of Mr. Winthrop Dale Lodge who in fact was the fingerprint man who did the finding of the exact object, and is clearly related in that document; and I would like to make that a part of the record in these proceedings right now because I am not sure whether it is in evidence or not, but I would like it as far as this proceeding wherein Item 29 on Page 4 refers specifically to the very object of which we are discussing and is concerned with here.

That information became a part of the trial record in the earlier proceedings which we are talking about, so I just want to point that the finder was known on a 302. The finder has been known at least within the material of the Defendant's counsel and those doing research, and so forth for them; that it was a matter of record in the last trial. It was a part of the transcript in the last trial, and that's the best and the most total and every explanation that I can give concerning the matters that were specifically requested and far beyond the issues and the matters that were specifically requested; and I would like this particular document to be marked as a Government's exhibit, whatever would be appropriate to designate it as different, as far as just this hearing {2403} and not as far as evidence in the trial itself.

Now, if the Court has any further question that they would like to ask of counsel, I certainly will do my best to respond.

THE COURT: If you are going to mark that as an exhibit, I would suggest you also mark that covering letter.

MR. HULTMAN: Yes, your Honor. I am sorry, I meant to do that.

There are matters, of course, which are for this hearing and in camera proceeding alone and not as far as trial.

Now, maybe the 302 will become evidentiary matter, I don't know; but I want it at least in the record at this time as far as the hearing.

MR. LOWE: May I briefly respond, your Honor?

THE COURT: You may.

MR. LOWE: I would hope that one thing I would say we would finally get on the record, that Mr. Hultman would finally understand -- I think your Honor has acknowledged this time and time again, and Mr. Hultman insists on standing up time and time again saying it over and over again -- that is, we had a six week trial last summer. We have, I would guess, maybe eight or ten file cabinet drawers full of papers. I have probably read {2404} 10 percent, 20 percent of those papers personally. I have no idea or recollection of any particular ones that I read last summer. We had a six week trial. I may have even referred specifically to some of those documents in the trial, I may have cross-examined somebody using them. I have made no general attempt to go back and read the transcript. I have made some specific attempts in specific instances to refresh my recollection.

To say, as Mr. Hultman did, that the defense team itself had knowledge of this, as opposed to at some time having seen or read it, we do not have knowledge of it. The first that I had consciousness in this trial of that affidavit was when we received the 3500 material on Special Agent Cunningham. I would guess it was three or four days, two or three days before he testified. I can't say that I did or did not see that affidavit before. I say that I had absolutely no recollection of having seen it. I may even have a piece of paper stating that I saw it, when I received it in the 3500 material last summer.

That's a far cry from saying I was conscious of it or aware of it. I don't believe I did see it last summer. If I did, I certainly have no consciousness of it, or anything that went on.

The fact that a couple of attorneys here are the same as last summer does not mean we had knowledge. He is a {2405} different Defendant. He is entitled to get all due process, all Brady versus Maryland disclosures, all 3500 material, all due process he is entitled to under the law.

I think your Honor has acknowledged that time and time again. I would hope that issue would be solved and put to rest once and for all.

As to the specific information in this covering letter which is from Bruce Boyd who is one of the Assistant United States Attorneys who has been sitting here all during this trial, God knows it would have been simple enough for him to stand up and say, "I sent the covering letter."

Mr. Hultman says it goes to the voluntariness. I would submit that Mr. Peltier goes back to the jail voluntarily every evening. That doesn't mean there is not some compulsion that makes him go back every day.

I think we are clearly entitled to have it under the Brady case, and I would advise your Honor, that we will take it under advisement, we will look at it and the first opportunity will advise the Court if we feel anything further is necessary or whether we are entitled to anything further in the way of disclosure.

Having just heard it read and seen it for the first time, I don't have any immediate reaction.

We obviously appreciate cooperation from the {2406} Government, and we have been giving cooperation to the Government in mutual exchanges. We are clearly entitled to this information.

As far as what Mr. Halprin may have done or not done, we will have to take this and digest it and see what we can find.

I hope we can put to rest the myth that the Defendant and his team were somehow on notice because of things that were done last summer.

MR. HULTMAN: I want to respond very briefly, two items. One, if Mr. Lowe interpreted what I said to be that he specifically had the knowledge, then either I didn't say what I intended to say or he didn't grasp what it was I was trying to say, and I won't get into which it was, maybe a little of both.

All I am trying to say, your Honor, is that within the Rules, access to information, and what is within the capability is what I am talking about. I at no time could have any knowledge as to what Mr. Lowe may or may not have read. I am only referring specifically to accessibility, period, so I make that very clear.

The other thing that I just want to point out is the fact that within the accessibility it is very obvious that the matter did come to the attention of Mr. Lowe, or the issue would not have been raised; and therein lies {2407} the fact that I am just trying to make the point, that the materials have been within the capability and the accessibility of the counsel for the defense in this particular proceeding, and that's the only point that I am trying to make.

THE COURT: I think my only comment is that if we pursue this discussion any further, we will certainly be creating a situation where the court reporter is going to be making undue profits from the transcript.

MR. HULTMAN: An unjust enrichment, your Honor, is that it?

THE COURT: Plaintiff's Exhibit 149, Plaintiff's Exhibit 150, will be made a part of the record on this Brady versus Maryland disclosure matter. Those exhibits will not at this time at least be made available to the jury.

MR. LOWE: Could your Honor just identify the 302 by date? I think we probably have that.

THE COURT: The Exhibit 150 is a 302 with the date of transcription of July 7, 1975.

MR. LOWE: Thank you, your Honor.

THE COURT: And the letter, letter marked as Plaintiff's Exhibit No. 149, dated February 27, 1976, signed by Bruce W. Boyd, Assistant United States Attorney.

MR. LOWE: We have a copy. He just handed us one.

{2408}

THE COURT: The Court reserves ruling on Defendant's Exhibit 145 which was the second affidavit of William P. Zeller, and finds that there is nothing inconsistent in that affidavit with Mr. Zeller's testimony on the witness stand so the exhibit will not be received.

MR. ELLISON: Your Honor, we would like to offer the March 4th affidavit -- that was dated March 4th, 1976, with the affidavit dated April 6th, 1976, because I believe the discrepancies are apparent with regard to Paragraph 10.

{2409}

THE COURT: I would have suggested that you offer, that the offer should have been made yesterday. Now I'm going to have to reserve my ruling on that in order to examine that affidavit.

MR. ELLISON: All right. I appreciate that.

MR. CROOKS: Your Honor, might I just state the United States response? This is exactly what we've seen again and again, the setting up of a straw man.

Mr. Zeller testified very candidly concerning both affidavits. He testified that there was an error on the first one, that that was caught before it was sent, that the correction was made, and the affidavit sent in correct form to the Canadian officials.

He's testified about it completely. It has absolutely no relevance to putting those affidavits in themselves. He's testified, his testimony is the best evidence of what happened, and the affidavits themselves are completely cumulative and have no probative value at all to this proceeding. The testimony was quite candid. He testified there was an error and we would assume that that would be the only reason that the affidavit would be admissible at all was to prove that there was in fact an error.

The error was admitted and we do not feel that that affidavit should be put in. His testimony should stand on its own weight.

{2410}

MR. TAIKEFF: Well, Your Honor, in response to Mr. Crooks I would like to ask this question, and perhaps Mr. Crooks would like to answer it. When a witness gets on the stand and testifies that he saw a person at a certain location holding an M-1 Gerand rifle, which is a rifle that loads through the top and works in a semiautomatic fashion, I wonder then why the Government offers the rifle in evidence and why Your Honor allows it in.

Of course I hear some noises coming from Mr. Crooks, not in the form of words, but in guttural sounds and I suspect that maybe I've hit the center of the target.

The fact of the matter is that each and every juror has five senses or more, but at least five that we know of, and they hear the testimony. But they have eyes, and those eyes are supposed to be put to work. So we offer them, the real evidence that goes hand in hand with the oral testimony so they can look at the thing which they've just heard the testimony about. And if it is appropriate to put the M-1 Gerand rifle in then it's surely appropriate to put the affidavit in.

If it's appropriate to put the shell casings in, everybody presumably knows a shell casing after you see the first one, why we have all the shell casings in evidence, I'd like Mr. Crooks to explain. And when he gets finished I'd like him to explain then why the affidavits don't come {2411} in.

MR. CROOKS: Well, Your Honor, I ordinarily, I will have to concede that I've admired Mr. Taikeff's presentations. However, this one completely escapes me. If Mr. Taikeff is contending that they're the same thing between offering documents which are used solely for impeachment as there is to offering hard evidence which proves a fact, and he doesn't understand the difference, I'm sure I can't explain it to him. If he can't comprehend the difference, I would suggest that I would possibly be unable to do it also.

The fact of the matter is that Mr. Zeller testified fully about the supposed inconsistent statement. I think under the rules of evidence any further offer on that in collateral. If he had denied the inconsistent statement then obviously you could put in the affidavit to show that the inconsistent statement was made. But I think it's very Horn Book Law that you can't put in evidence of collateral matters once the inconsistent statement has been admitted. It's as simple as that.

If counsel has never heard of that rule of law then I suspect that he should refer back to some of his Horn Books that he had in law school.

MR. TAIKEFF: Well, I didn't go to a law school where they used Horn Books, Your Honor. We worked by the case method of the law school I attended.

{2412}

However, I think that Mr. Crooks misses the point that when we offer the two affidavits they are prior sworn statements offered as evidence in chief. Maybe that's why he doesn't understand the offer.

THE COURT: Are we ready for the jury?

MR. TAIKEFF: No, we're not Your Honor.

Your Honor, there's a proceeding set for 1:30 this afternoon. I thought I would advise the Court that at least two of the defense team are potential witnesses at that proceeding. I understand that Judge Davies is going to have a hearing on the contempt citation against Mr. Trudell; and I also understand that others who are involved in this trial may be called as witnesses.

Therefore, I give notice to Your Honor that it may be necessary to suspend these proceedings, and in view of that, and in view of the fact that the matter concerns so closely this particular case, but does not involve an alleged contempt in the presence of the Court, perhaps Your Honor would conduct that hearing. I think overall we would probably do it in a more expeditious way because Your Honor is personally familiar with all of the general surrounding circumstances, if not the specific incident.

Judge Davies would have to familiarize himself with a much more broader range of fact to make a determination, and that would prolong the absence of certain participants {2413} in this trial. So I think it would be most expeditious and cause us the shortest delay or recess if Your Honor would have that matter transferred to himself.

THE COURT; Well, in response to your second request, Judge Davies has agreed to handle it and that will not be changed.

In response to your first request I do not intend to, with a sequestered jury and the number of people involved in this case, I do not intend to suspend the trial in this matter by reason of those proceedings.

MR. TAIKEFF: Well, what's going to happen when trial counsel is on the witness stand?

THE COURT: I'll meet that problem if it arises.

MR. TAIKEFF: All right. Then I'm just advising Your Honor that that is a real possibility.

THE COURT: It certainly would not be necessary for trial counsel to be down there except at the time that it was necessary for him to testify.

MR. TAIKEFF: That's quite correct, Your Honor.

THE COURT: Secondly, I do not understand why it would be necessary for trial counsel to testify in that matter.

MR. TAIKEFF: Because trial counsel was a witness to certain events which occurred in the corridor.

THE COURT: And I would not expect that it would be {2414} necessary for more than one trial counsel to be absent from this courtroom at any one time.

MR. TAIKEFF: Well, when one is absent, Your Honor, there is a sufficient absence to warrant a cessation in these proceedings. We have been us divided up the work in certain ways so that it is possible for one of us to be across the hall in 326 where we are not more than fifteen seconds apart.

But we're not going to proceed with one of us in another building, perhaps tied up for another half hour because there is no way that it is then possible for the remaining trial counsel to have immediate access to the other trial counsel.

THE COURT: I would be very surprised if those proceedings were held anywhere except in this building.

MR. TAIKEFF: I was told yesterday, but I may have been misinformed, that the proceedings were to be held in the new federal building.

THE COURT: There is no other courtroom, there is no courtroom in the new federal building. The only other courtroom would be the small courtroom on the second floor down on the end of the corridor.

MR. TAIKEFF: That changes the complexion of the situation.

THE COURT: That is where I would anticipate that {2415} proceedings would be held.

MR. TAIKEFF: My statement was predicated on what I was told yesterday that it would be held in the new federal building.

THE COURT: I could be mistaken, but I do know that there is no courtroom facility in that building.

MR. TAIKEFF: Thank you, Your Honor.

THE COURT: I could be mistaken as to maybe the Judge plans to utilize some other room. But the Clerk tells me he'll find out for me.

MR. TAIKEFF: Thank you very much.

THE COURT: We'll get back to that.

DEPUTY MARSHAL: Your Honor, that will be held in the bankruptcy court at 1:30.

THE COURT: Ralph, the marshal apparently knows where it will be held. It will be held just one floor down at the end of the corridor.

Are counsel now ready for the jury?

MR. TAIKEFF: Yes, Your Honor.

MR. CROOKS: Yes, Your Honor, we are.

THE COURT: Jury may be brought in.

MR. CROOKS: Next witness will be Ed Hanson.

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

{2416}

EDWARD E. HANSON

being first duly sworn, testified as follows:

{2417}

DIRECT EXAMINATION

BY MR. CROOKS:

Q Mr. Hanson, would you give your full name again for the record, please.

A Edward Eugene Hanson.

Q Where do you live, sir?

A Live in Ontario, Oregon.

Q And what is your occupation?

A I'm employed with the Oregon State Police.

Q How long have you been with the Oregon State Police, Mr. Hanson?

A Approximately seven years.

Q And what is your present duty position or status? Are you a trooper, investigator or what was your official title?

A I'm a criminal investigator assigned to the Ontario patrol office.

Q And how long have you been in that capacity as an investigator?

A Approximately three years.

Q Calling your attention back to November of 1975, did you have occasion to be called to the scene of an incident involving a Dodge motor home and a white Plymouth automobile?

A Yes, I did.

Q And I would show you Exhibit 61 and ask whether or not these are in fact photographs of the vehicles in question?

A Yes, the are.

{2418}

Q Now during the course of your investigation, were you called upon to make any search of those vehicles?

A Yes, I was.

Q Were these searches pursuant to a search warrant of any kind?

A Yes, they were.

Q What was the nature of that?

A They were pursuant to a State Search Warrant to search for evidence of an attempted murder.

Q And insofar as the search was concerned, do you recall the day that the search started?

A November 15, 1975 when the search started.

Q This would be the day following the purported incident?

A That's correct.

Q And do you recall the approximate time, not necessarily the exact time, but the approximate time of the day that the search commenced?

A It was approximately 4:20 P.M.

Q And who was with you when the search was commenced?

A Myself and Sergeant Zeller were conducting the search and during this time other people arrived and left and I'm not certain who was present when we actually started the search.

Q Were there special agents of the Federal Bureau of Investigation on hand?

A There were at different times; yes.

{2419}

Q And what part, if any, did they play in your search?

A They just observed the search.

Q Now insofar as the Federal Bureau of Investigation is concerned, were you aware of the fact that there had been an all points bulletin out on these vehicles?

A Yes, I was.

Q And they were looking for what? I mean, not necessarily whom but what?

A Evidence leading to the apprehension of federal fugitives.

Q And to the best of your knowledge is this a function of the FBI to pursue Federal fugitives?

A Yes, it is.

Q During the course of the search were items removed from the motor home?

A Yes, there was.

Q And at a later time was there a federal search warrant also obtained?

A Yes.

Q Do you recall when this was executed, if you recall?

A I believe their search was started on November 17 at approximately 12:05 P.M.

Q Insofar as the search made by the state troopers, who is principally doing the search? Who would you say was in charge of the search itself?

A I was actually in charge of the search but because of {2420} Sergeant Zeller's expertise in fingerprinting, he actually preceded me to make sure that the fingerprint evidence was preserved.

Q So Sergeant Zeller would principally be the initial searcher and you then would have searched after he'd been reasonably assured of preserving fingerprints, is that correct?

A That's correct.

Q All right.

Insofar as the items taken from the vehicle, were there any firearms removed?

A Yes, there was.

Q And again, referring you to Exhibit No. 61, pages 3, 4 and 5, would you examine those very briefly if you would, please.

Having examined those, do those depict firearms that you observed being taken from the recreational vehicle or the Plymouth station wagon?

A Yes, they do.

Q And were there other firearms which are not depicted in that photograph, if you recall?

A Yes, there were. There were additional ones.

Q What about an AR15, do you know what that is?

A Yes.

Q Showing you what has been marked as 34AA which has previously been identified and received into evidence as an AR15 were any weapons of this type recovered?

{2421}

A Yes, there was.

Q Now that is to say that this is the weapon, but of this type, is that correct?

A That's correct.

Q You would have no way of knowing if this was the weapon?

A I might have marked it for evidence, I don't know.

Q Well, I can assure you it was not, but I wish you would examine it.

MR. ELLISON: Your Honor, I would object to Mr. Crooks' testifying in this matter. He's perfectly capable of answering.

MR. CROOKS: I'll withdraw the remarks, Your Honor.

THE COURT: Sustained.

A This was not the weapon that I found.

Q (By Mr. Crooks) With regard to the AR15 that was found, you responded that this was not the weapon. What lead you to that conclusion?

A The AR15 --

MR. ELLISON: Objection, Your Honor. Side bar?

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

MR. ELLISON: Your Honor, the weapon that was found in Oregon has an obliterated serial number. The proof of that crime has no relationship to this particular case.

MR. CROOKS: Your Honor, I had understood we {2422} already won that ruling. I understood we were entitled to go into the fact of the obliterated serial numbers. That is in fact what the witness will say.

MR. ELLISON: Your Honor, my understanding was that the government was permitted to go into the weapon, go into the fact that certain weapons were found in the mobile home and the Plymouth. I did not hear any ruling pertaining to obliterated serial numbers.

THE COURT: The objection is overruled.

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

MR. CROOKS: Would you repeat the question. Whereupon, the following question was read back: With regard to the AR15 that was found, you responded that this was not the weapon. What lead you to that conclusion? Answer: The AR15 --)

Q (By Mr. Crooks) Let me also add before you answer that. The one I'm referring to is 34AA. How do you know this is not the weapon?

A The serial number on the weapon that I found was obliterated and I notice that the serial number is intact on that weapon.

Q Would you point out to the jury where the serial number is that you're referring to.

A Serial number is this stamped number in this area (indicating).

{2423}

Q With regard to the serial number on the other weapon, you're saying that there was no such number?

A It had been obliterated.

Q How had it been obliterated from your recollection of it: covered up or what?

A IT had been stamped out with some object making it so it could not be, wasn't legible.

Q Were there other weapons that you recall which are not photographed in Exhibit 61A aside from the AR15 as best you can recall?

A I believe there were.

Q Officer Hanson, in your examination of the Dodge motor home and the recreational vehicle, or, excuse me, and the Plymouth station wagon, were there communication devices found?

A Yes, there was.

Q And would you describe generally what you observed insofar as each vehicle concerning communication devices?

A Each vehicle contained a citizen's band radio both tuned to channel 11.

O And were there other radios aside from the ones that appear to be mounted into the vehicles, as you recall?

A Yes. There were portable radios found in the back of the motor home, or recreational vehicle.

Q And were these a commercial AM, FM type radio or are these communication type radios?

{2424}

A I think what would be commonly known as walkie-talkie type radios.

Q Now insofar as the search of the vehicle, particularly the Plymouth, was a tool box located?

A Yes.

MR. ELLISON: Objection, Your Honor. Leading.

THE COURT: Sustained.

MR. ELLISON: Move to strike any answer to this question because the question was suggestive.

Q (By Mr. Crooks) Well, would you start at the top and go to the bottom and list everything that was found in the Plymouth station wagon then. We'll do it the long way.

A Items I seized from the Plymouth station wagon included a small baggie of vegetable material --

MR. ELLISON: Your Honor, object to this witness reading from any form of list. He has not testified that he cannot recall from his own recollection what was found in the station wagon and for purposes of expediency we're, rather than going through lengthy lists we will allow the government to ask him proper questions.

MR. CROOKS: Thank you, Counsel.

Q (By Mr. Crooks) Was there a tool box found?

A There were two tool boxes found in the Plymouth station wagon.

Q What was done with the tool boxes?

{2425}

A I kept the tool boxes for a period in my possession and then later turned them over to FBI Special Agent Steven Hancock.

Q Did you open the tool boxes yourself?

A Yes, I did.

Q And did you observe any of the contents in the tool box?

A Yes, I did.

Q And would you describe generally what you observed with regard to the tool box that you turned over to Special Agent Hancock?

A There were numerous items. Some of the items were wiring, pocket watches were with wires leading out of them, tools, plyers, side cutting plyers. In one of the tool boxes there was some empty shell casings, fired shell casings.

Q You talked about wires and some kind of device. Showing you picture number, the one on the bottom of page 5, there are items depicted. Are these similar to the items you're talking about?

A Yes, they are.

Q Do you recall when you turned the tool box over to Special Agent Hancock?

MR. ELLISON: Your Honor, again I don't believe that the witness has testified that he cannot recall specifically what he's being asked to respond to and he is again referring to his notes. We'd ask this practice be stopped.

{2426}

THE COURT: Well, the Court will allow the witness to refer to notes to refresh his recollection and Counsel is aware, of course, that you have the right to --

MR. ELLISON: Yes, Your Honor.

THE COURT: -- see those notes.

MR. ELLISON: Yes, Your Honor. However, this witness has not so far testified that he cannot testify from his own knowledge with regard to the specific question asked by Mr. Crooks and we only ask that this be done in the proper fashion.

THE COURT: Counsel will lay the proper foundation..

MR. CROOKS: All right.

Q (By Mr. Crooks) Do you recall the specific date off the top of your head?

A No, I do not.

Q Do you have notes with you that would aid you in refreshing your recollection?

A Yes, I do.

Q Would you consult those notes and then inform me if your recollection is refreshed.

A I'm unable to find that in my notes.

Q In any event, with regard to the, I believe you said two tool boxes, would they have been turned over the same day in which they were found or at a later date?

A AT a late date.

{2427}

Q With regard to the evidence which was found, aside from the tool boxes, was there another found by you and the state officers, were there other items which were also turned over to the Federal Bureau of Investigation?

A Yes. Most of the items that I seized were turned over to Special Agent Hancock.

MR. CROOKS: We have no further questions.

MR. ELLISON: I have a few questions, Your Honor.

THE COURT: You may cross-examine.

MR. ELLISON: Your Honor, if I could have just a moment to find a document.

{2428}

CROSS EXAMINATION

By MR. ELLISON:

Q Officer Hanson, in your examination on November 15th of the mobile home, was one of the items that was seized by you a .357 magnum?

A Yes, it was.

Q I show you what has been marked as Government's Exhibit 35-A, was this the .357 magnum which you found in the mobile home?

A Yes, it is.

Q And you had custody of that .357 magnum?

A Yes, I did.

Q And your custody was exclusive, wasn't it? I mean, you didn't share that custody with anyone else, did you?

A Originally I shared that custody with Sergeant Zeller.

Q Well, when you say "originally", for how long did you share that custody?

A I would say on that date I shared it with him until it was transferred to our evidence locker, from the time that it was originally found until it was transferred to our evidence locker.

Q All right. So that at the conclusion of the day on November 15th Sergeant Zeller's custody with regard to this .357 magnum ended and this .357 magnum became within your sole custody?

{2429}

A I believe that would be correct.

Q Sergeant Zeller didn't get custody of this weapon on the 16th or the 17th of November, did he?

A He could have had joint access to it.

Q Is there a difference between access and custody?

A I believe so.

Q So he may have had access to it because you were working together, is that correct?

A That's correct.

Q But you had custody of this item?

A I would say so.

Q All right.

In discussions earlier on direct examination you talked about finding a weapon which was shown to you, marked Government's Exhibit 34-AA, is that correct?

A Yes.

Q And you testified that the weapon you found had an obliterated serial number?

A That's correct.

Q Are you aware of 34-AA being simply an illustration or here for illustration purposes?

A No, I am not.

Q All right.

On direct examination you were asked whether you knew what an AR-15 was, is that correct?

{2430}

A Yes.

Q By the way, is an AR-15 an automatic weapon?

A It can either be automatic or semi-automatic. There is on the military style, there is a selector on some of them, and then some of them don't come with a selector, I believe.

Q In the military version known as the M-16?

A I believe that's correct.

Q And the civilian version is known as the AR-15?

A I believe that's correct.

Q And the AR-15 only comes in semi-automatic fashion?

A This could be so. I am not certain.

Q If you were to examine the AR-15 which I just showed you, would that help to refresh your recollection?

A Probably not. I am not that familiar with weapons.

Q O.k. When you found this AR-15 in the mobile home, there were FBI Agents present, were there not, at least in the general location?

A Yes, there were.

Q When you brought this AR-15, the FBI showed a pretty strong interest in the recovery of that item, didn't they?

A They were strongly interested in the whole series.

Q They were particularly interested in the AR-15?

A I don't recall any more interest on that weapon than any other weapons.

Q On November 18th, 1975, did you transfer custody of the {2431} .357 magnum marked as Government's Exhibit 35-A to a Special Agent of the FBI known as Steven Hancock?

A I did transfer it to him, and don't recall if that was the date.

Q I hand you what has been marked for identification purposes as Defendant's Exhibit 152.

Would you please look at that document and see if that refreshes your recollection as to the date you transferred custody of the .357 magnum marked Government's Exhibit 35-A to Special Agent Hancock?

A (Examining) It is very possible that it was that date, but I don't recall; and my notes apparently don't reflect that date that I have with me.

Q All right, but you have no doubt that it was you that transferred the .357 magnum to Special Agent Hancock?

A That's correct.

Q Did you feel any need to personally notify Sergeant Zeller about that transfer, I mean, he wasn't in custody of the item, was he?

A No. He probably would have been aware of the transfer, but I don't understand your question.

Q You were in sole custody of that .357 magnum?

A Yes.

Q As a result of that custody, since you were in sole custody, you didn't feel any particular need to contact {2432} Sergeant Zeller and ask his permission to transfer that custody?

MR. CROOKS: Your Honor, I will object to the form of the question. This is repetition, repetitious and it is argumentative.

THE COURT: Oh, the witness may answer.

A I may have asked him if he was through processing the weapon for prints before I transferred it. Therefore, he may have been aware of it.

Q (By Mr. Ellison) All right, but did you understand that, my question?

A Apparently not.

Q I will restate the question.

You didn't feel any need to ask Sergeant Zeller to transfer custody of that .357 magnum from the Oregon State Police to the FBI?

A No.

Q All right, thank you; and just one final question:

On direct examination there were a number of times in which you referred to your notes because you were unable to recall specific events in response to questions asked by Mr. Crooks. When you looked at those notes, was your memory independently refreshed or were you forced to rely upon your notes?

A It was independently refreshed.

Q On all occasions?

{2433}

A I believe so.

MR. ELLISON: I have no further questions, your Honor.

MR. CROOKS: We have nothing further.

THE COURT: You may step down.

(Witness excused.)

MR. CROOKS: The Government next calls Special Agent David Milam.

MR. TAIKEFF: While we are waiting the witness' appearance, may we approach your Honor?

THE COURT: You may.

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

MR. TAIKEFF: Your Honor, Mr. Lowe is especially concerned with the state of the record, and so I come forward not to burden either the Court or the record, but to make sure that there is no misunderstanding.

I think our position is clear concerning evidence that we feel is extraneous to the issues in this case. The testimony of the last witness touched upon many things which we think are highly prejudicial.

I think the record is clear that we took the position that the entire episode, every aspect of it is irrelevant to the case; but just to make sure that the record is protected and I satisfy Mr. Lowe's sensitivity, at this {2434} particular time I am going to move for a mistrial on the basis of the testimony that has accumulated thus far in connection with the Oregon incident.

MR. CROOKS: We, of course, resist that. We believe that all this evidence is relevant. It is pertinent to the issues in the case.

THE COURT: Well, I think also the record is clear that that came in over Defendant's objection. The motion for mistrial is denied.

MR. TAIKEFF: May I assume, your Honor, that it would not be necessary, therefore, to object to each particular bit of evidence or reference to a particular object as long as it is clear that we are dealing with a phase of the case that we have made a broad objection to?

THE COURT: It is my understanding that the Defendant is objecting to any evidence relating to this Oregon incident.

MR. TAIKEFF: Thank you, your Honor.

MR. CROOKS: Your Honor, there is one other thing while we are waiting for the witness also, the United States would at this time also reoffer Exhibit 50, and 51, which are the communications devices seized by Special Agent Adams. We feel there is more than adequate foundation at this time to file these and --

THE CLERK: (Interrupting) It is not 50 and 51.

{2435}

MR. CROOKS: 50-A and 50-B, I stand corrected, your Honor.

Insofar as these devices, we think that there is more than adequate evidence now to tie these up, and show the relevance. They were received by Special Agent Adams in the white house at the crime scene. There was testimony that the red and white van contained communication devices, and I believe also there was testimony from Mr. Brown concerning communication devices.

We have also now shown further use of communication devices by the Defendant, tying him to the recreational vehicle and the Plymouth; and we feel at this point we have shown relevance for those exhibits, and we would offer them as such.

MR. LOWE: Well, your Honor, first of all, I would point out that the Government represented -- I am not saying it wasn't in good faith -- they represented that Mr. Draper was going to testify that there was actual communications by radio between the residences and Tent City. No such testimony was even sought, much less given.

There is no testimony to show that those two handi-talkies, first of all, were even functional; second of all, that they were on the same frequency as an radios that were found in Tent City; third, that any of the Tent City radios were functional, or if they were functional, {2436} were connected up in a way they actually did function at any time on June 26, 1975.

There is no testimony that anybody ever used a radio to communicate from the residences to Tent City or vice versa.

There is no testimony to show that the radios in the red and white van in Tent City were even capable of communicating on the same frequency as the radios in the white -- residences; and further, the natural inferences that in the middle of fire fighting -- gun fighting, a shoot-out where people are fleeing the scene, that these two radios were in their chargers inside the house, belies the fact they were used for any reason on June 26th. Nobody in their right mind would think that these people who were in the middle of a shoot-out would reinsert them in the chargers and leave them there when they were fleeing from the FBI. All the natural inferences are against the proof that the Government is trying to suggest, and in fact there is no evidence to support it, absolutely no evidence.

MR. TAIKEFF: And the property of others.

MR. LOWE: Also, the property of others. There has been no connection with Mr. Peltier in any way.

MR. TAIKEFF: Or any of the people in Tent City.

MR. LOWE: That's right.

{2437}

MR. CROOKS: I don't wish to prolong this argument or go into it. It seems to me we have shown adequate connection.

It seems to me the fact they were plugged in would indicate just as well they were being recharged for the possible escape, and apparently left behind in a hurry. There is just as much credibility to that as Mr. Lowe's argument. I don't feel that there is anything more particularly to argue. I think the Court has heard all the evidence, and we are prepared for the Court to make a ruling at this time.

MR. TAIKEFF: The Court should be reminded that was somebody else's house. That wasn't the home of anybody connected with this case.

THE COURT: I am going to continue to reserve my ruling until I hear all the evidence in the case before I act on that.

MR. CROOKS: All right.

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

DAVID A. MILAM

being first duly sworn, testified as follows:

DIRECT EXAMINATION

By MR. CROOKS:

Q Mr. Milam, would you again repeat your full name for the {2438} record, please?

A David A. Milam.

Q And where do you live, sir?

A Portland, Oregon.

Q And what is your occupation?

A Special Agent with the FBI.

Q How long have you been a Special Agent with the Federal Bureau of Investigation?

A Approximately six years.

Q And calling your attention back to November of 1976, what was your duty station -- or '75, what was your duty station at that time?

A Portland, Oregon.

Q Mr. Milam, with regard to the matter which we have been hearing today, were you called upon to observe or conduct a search with regard to a Dodge motorhome and a Plymouth stationwagon which had purportedly been involved in an incident around Ontario?

A Yes, I was.

Q All right. Would you describe how you became involved in this investigation?

A I originally left Portland with several other agents for Ontario, oh, it would have been Saturday, November 15th, arriving in Boise on Saturday, the 15th, drove by car to Ontario, Oregon, on Sunday, the 16th.

{2439}

At that time we were awaiting a Federal search warrant for these vehicles and also awaiting the execution of a State of Oregon search warrant, so I was in Ontario on the 16th and actually conducted the search with the Federal search warrant on the 17th.

{2440}

Q All right. With regard to the State search, were there special agents of the Federal Bureau of Investigation on hand at the time that the State search was being conducted in the area of the search?

A To the best of my knowledge there were at times.

I personally was present, this would be on the 16th, as an observer for part of the state search warrant.

On the morning of the 17th when they completed their search in the Oregon National Guard Armory in Ontario, Oregon, I was not present.

Q Insofar as the federal search was concerned did you find various items in the motor home, or the Plymouth station wagon yourself?

A Yes, I did.

Q And I would again refer to you Exhibit No. 61 which is the photograph, the first page, which is the photograph of the motor home and the Plymouth. Were these vehicles that were part of the search?

A Yes. These are the two vehicles that I did search.

Q All right. Calling your attention to the recreational vehicle first. I would hand you Exhibit No. 38-G and ask if this is an item you can identify?

A Yes. This is a can of Outers gun cleaning oil which I did remove from the motor home. It does bear my initials.

Q Now, with regard to that particular item that you have {2441} before you described as a can of gun oil, 38-G, where was it found?

A This particular item was underneath the dinette seat on the left-hand side, approximately the middle of the motor home.

Q All right. And do you recall when it was found?

A Yes. This would have been found by me on Monday the 17th of November.

Q All right.

MR. CROOKS: United States will offer Exhibit 38-G.

MR. TAIKEFF: No objection, Your Honor.

THE COURT: 38-G is received.

Q (By Mr. Crooks) I hand you 38-H, and I do not want you to in any way mention the contents of this, but what is that, just descriptive, do go into the contents at all.

A This is one sheet of paper bearing printing that I removed from the recreational vehicle motor home.

Q And was this found by yourself?

A Yes, it was.

Q And where was it found?

A This was found in the rear lower left, referring to an upper bunk area and lower seating area of the motor home. It was on the lower left-hand side of the motor home.

Q All right. And that was found by yourself again on the 17th; is that correct?

A Yes, it was.

{2442}

Q I now hand you Exhibit No. 38-I. Ask if you can identify these particular documents?

A Yes, I can.

Q And what are they?

A These are 9, what appear to be approximately 3 by 5 pieces of white paper with black numerals, letters, that are removed from inside a folded up blue baseball cap that I located in the recreational vehicle.

Q Where was that located?

A These particular items, well, again these particular pieces of paper were contained inside of a blue baseball cap, which was the blue cap being on the right-hand side in a closet. Right approximately middle section of the motor home.

Q All right.

MR. CROOKS: United States will offer --

Q (By Mr. Crooks) And again this was found on the 17th?

A Yes, sir.

MR. CROOKS: Offer 38-I.

MR. TAIKEFF: No objection.

THE COURT: 38-I is received.

Q (By Mr. Crooks) All right. Now, insofar as Exhibit 38-I you described these as having been found wrapped up in a baseball cap found, I believe, in a closet if I recall your testimony?

A Yes.

{2443}

Q Insofar as 38-I is concerned were there documents similar to that located in other parts of the vehicle?

A Yes, th