VOLUME XIII

Pages 2608-2829

{2608}

FRIDAY MORNING SESSION

April 1, 1977

9:00 O'Clock, A.M.

Whereupon, the following proceedings were had and entered of record on Friday Morning, April 1, 1977, at 9:00 O'Clock, A.M., without the jury being present and the defendant being present in person:

THE COURT: Are there any matters to be considered before the jury enters?

MR. TAIKEFF: Yes, Your Honor.

MR. CROOKS: Yes, there is, Your Honor.

MR. LOWE: I yield to the Government.

MR. CROOKS: Your Honor, pursuant to the request of the Court I did obtain from Mr. Hanson, the Department of State Oregon Police report. Mr. Hanson however has requested that this report not be turned over to the defendant in total, principally because they do have charges pending in Oregon which they do not feel that this contents of this report should disclosed at this time.

However, I have examined this report completely insofar as the question raised as to when the AR-15 was found. I can state that there's only one reference in the report to the finding of weapons. That's on page 3, and reads as follows. Now, this would be referring to approximately 7:00 P.M. on the 15th. I believe it's the 15th, at least if it's in the proper sequence. It stated: "Police in charge of arson division {2609} advised him that vehicle," and this refers to the Plymouth as I understand it, "contained a quantity of dynamite. Write; requested that Lt. McCullom contact Trooper Bill Fettig. Advise him of the dynamite. See if he would be able to come to this area to dispose of the dynamite".

During the search of the motor home on this date there were several boxes of ammunition and several rifles found. These items will be listed under exhibits on this report.

Then I believe commences on the next page, they simply start with a list of exhibits. Item 7 is the AR-15. Item 7, AR-15.

A model .223 model SP1. Obliterated serial number, four loaded magazines, two loose cartridges, backstrap, all contained in a rifle case. And that's the only reference in the report at all to this matter which counsel raises.

I'll be happy to submit this report to the Court in camera and I have no objection as far as the Government is concerned to parts of this report which the Court think might be pertinent to be disclosed. But I have been requested by Mr. Hanson that the report not be disclosed to the defendants in total because of the nature of their pending case there.

I believe the record will indicate if I'm correct that Mr. Peltier was extradited on a burglary charge in Oregon and that is still pending and papers have been filed. If the Court wishes to examine this I'll be more than happy to submit it to the Court for whatever use the Court then feels {2610} should be made of the report.

MR. TAIKEFF: Your Honor, might I ask if it's possible for the Government to indicate to the Court which sections of the report should be deleted.

MR. CROOKS: I have no idea, Your Honor. I'm not sure what parts Mr. Hanson does not wish disclosed other than obviously for tactical reasons they do not feel that the entire report should not be disclosed. And I would rely on the Court's discretion as to what parts if any may pertain to this case, and to the matter specifically which counsel requested reports for the date of finding of the AR-15.

I can't state to the Court that that information is I not contained in that report. There is nothing to indicate the time at which any weapons were found other than the general statement which I read.

MR. TAIKEFF: May I ask whether Mr. Hanson is still in the building?

MR. CROOKS: No. Mr. Hanson has returned to Oregon and this information was relayed to me by the FBI who caught him I think at the airport and obtained a copy of the report.

MR. TAIKEFF: I assume, Your Honor, that the list attached encompasses not only the AR-15 but also all of the other objects which are depicted in the photograph which is the subject matter of this inquiry. And therefore one might rationally conclude that all of those objects were found at {2611} approximately, if not at exactly the same time.

There's nothing to differentiate between the AR-15 and the other objects to the list which do in fact appear in the photograph.

MR. CROOKS: Well, I can answer that question. The list is simply their list of the items that have been either turned over to the FBI or returned in the search warrant. There's no dating. It's everything that they seized, lock stock and barrel over approximately a two day search. And the Court can examine for himself, and I'm sure that the same conclusion that the Court will come to, that there's absolutely no indication as to when any particular item was found.

It's over a period of a search of approximately two days, and those are all the items that are returned. And counsel has already the list. If counsel wishes a list, I'm sure Mr. Hanson would have no objection to the list. But it's simply the return of showing all the items that they've seized.

MR. TAIKEFF: Well, in the alternative, Your Honor, we would ask the Government to advise us of the names of the people who conducted the search so that we may serve subpoenas upon these and bring them here as defense witnesses.

MR. CROOKS: Well, Your Honor, apparently we're off on another ghost hunt. This completely collateral matter. The United States has no idea of the exact people. This was {2612} the State of Oregon search. I don 't think we have any obligation to go to the extent that counsel wishes on a collateral matter.

As understand it the issue that counsel is attempting to raise is that the AR-15 was found when the photograph was taken. This has got to be one of the most absurd arguments raised by counsel in any trial that this is supposed to be some kind of impeachment. There's no question that an AR-15 was found. Apparently this is again counsel's attempt to establish some grand conspiracy which is now also being entered into by the Oregon State Troopers. And it's absurd.

The AR-15 was found. That's never been in any way minimized by the Government. It's immaterial whether that was found at any particular time or not. We're talking about a collateral matter which at the very most would tend to impeach one statement by Mr. Hancock. And certainly I think the Court has ruled on numerous occasions, they're bond by the answer on collateral matters and they couldn't prove it anyway.

MR. TAIKEFF: The Government seems to have a magnificent talent or totally perverting and misconstruing what our position is. We say that the FBI agent who testified that the explanation for the absence of the AR-15 from the photograph was not a true explanation. That he just made that up as a way of explaining its absence instead of telling {2613} the truth. And we're entitled to explore the question of when that AR-15 was actually found. Because if in fact that AR-15 was found along with the other guns and was not in that photograph, that's relevant to show a conscious effort on the part of the FBI to exclude at least temporarily that AR-15 from the body of evidence being collected and recorded.

Now, I think that it is perfectly simple for us to acquire the names of the Oregon State Police people through the Government who participated in that search. We're entitled to that information in Brady against Maryland and we ask the Court to order the Government to give it to us.

MR. CROOKS: Well, Your Honor, Counsel, that information is just as available to defense counsel as it is to the United States. The witnesses were on the stand. They could have asked at any time. We had two people who we knew were involved. Mr. Hanson and Mr. Zeller, and either one of them could have asked.

I haven't the slightest idea of the names of the people that were involved, and I will not offer to find it, because I couldn't care less. Counsel wants to pursue that matter. I would assume that they have ways available to assume it just as easy as the Government. United States doesn't know the answer, and I don't think we have any obligation to pursue it on a petty matter such as this.

{2614}

THE COURT: What was that picture that was referred to?

MR. CROOKS: Government's Exhibit 61. The photograph that I believe was being referred to was the photograph on page 3.

THE COURT: The Court will review this and take this home after under advisement.

Are there any other matters to be brought to the Court?

MR. LOWE: Are you finished, Mr. Crooks?

MR. CROOKS: Yes, I am.

MR. LOWE: Your Honor, we have several very brief matters. First of all, James Theodore Eagle is being held by the marshal service, I believe in Grand Forks, the Court advises us. We would like to have an interview with him. It's timely at this point and we would ask that the marshals be instructed to have him available somewhere in the courthouse, perhaps, or in the Marshal's office or in room 326, whatever Your Honor thinks would be best, a suitable place to interview him on Monday. Because of the court schedule, we would request that he be available at 5:00 o'clock on Monday. I think that would give us an opportunity to talk with him. I do not anticipate it would take long. I would anticipate perhaps an hour and perhaps two hours at the absolute outside. So they would have plenty of time to {2515} return him at an early hour Monday evening to Grand Forks. They would not have to worry about keeping him overnight or anything of that nature.

THE COURT: What about the possibility of interviewing him over the weekend?

MR. LOWE: We are, all Counsel for the defense are going to a religious ceremony being conducted for Counsel at White Earth, North Dakota. Minnesota. White Earth, Minnesota. And it's an entire weekend of religious activities.

THE COURT: Are there any other matters?

MR. LOWE: Yes, sir.

Your Honor, this is a bright clear day. I don't know if it's yet cloudless or will be cloudless, but it is substantially cloudless. We ask Your Honor to take an opportunity at one of the recesses or a special recess for that purpose or on the lunch hour to take a view through the scope on the Coward rifle. That is, to have Your Honor do it in order for Your Honor to make a finding of fact with regard to what can be observed on a bright, clear day of substantially the same conditions that were present on June 26th, 1975 when agent Coward reportedly looked through the scope.

We believe we're entitled to at least have you look through it, we believe, to make a finding of fact. We believe Your Honor will be impressed. It is not a close question. {2616} There is no light condition that would enable anybody to see a face at a half a mile which is what Agent Coward testified was what was involved there. We would ask you to do that in order for two purposes: first, in order to evaluate the question of whether you would allow the jury to look through and, second, for the purpose of making a finding for the record.

THE COURT: The Court on any findings of fact that the Court is required to make, I will make them on the basis of the evidence presented in the courtroom. Now if you can reproduce the situation and produce an expert that would look through that and present evidence, that is admissible. That of course is your prerogative. I am not, I have ruled. I cannot conceive of any way that I can duplicate the facilities. Furthermore, I'm nearsighted and I don't think it would have much probative value for me to look through that telescope.

MR. LOWE: Your Honor, I would only point out it is possible we could use one of those windows to gain access to a half a mile sighting from the courtroom. I don't know whether Your Honor was indicating that would make a difference. We offer that as an alternative if you do not choose to go outside of the courtroom.

THE COURT: It makes no difference.

MR. LOWE: Third, Your Honor, we had discussions {2617} earlier in the trial with regard to some objections, I think I'm correct in saying there were three exhibits that constitutes, or were comprised of fragments or bullets which the experts said they could not positively link up with a particular weapon but said that they could possibly be associated with a particular weapon, meaning that it was, let's say, a 30 caliber or whatever it might be. We asked that those numbers be charged because they were misleading and Your Honor overruled us on that and indicated you would allow the numbers to remain the same.

In reviewing our notes on this it occurs to us that there is no reason in face of that ruling why the exhibits in question which are charts containing, first, a depiction oŁ the rifle involved or weapon involved which is then surrounded by depictions of various cartridge casings and comparisons of firing pin impressions and so forth. There is no reason why those fragments which have not been linked up to the weapon in question should be allowed to be depicted on those charts.

Now that's not asking that the numbers be changed, but in putting those fragments on a particular chart such as the M1 chart, let's say, in one instance, I believe. It is a deliberate effort to suggest to the jury improperly and make them speculate that those fragments came from that gun when in fact they could have come from any number of guns {2618} that are in evidence or any other number of guns that might have been there at the time. There is at least one chart, I believe, that already has one objectionable exhibit marked out on it by just having white paper pasted over it and we ask Your Honor make a view, make an examination of the exhibit in question for the purpose of making defemination as to what we're asking and ordering that they be covered up. I think that the government has those here in the building and could make them available to Your Honor at some point to look at before the expert is called upon to identify them.

The government may want to respond to that so I'll sit down a moment.

MR. SIKMA: Your Honor, I would state, first of all, that the charts clearly state that these are not positive identifications; that they could have been fired from the firearm in question.

Secondly, it is not merely a possibility that they could have been fired from this firearm or a number of other calibers. On all of these cases there are at least some similar distinguishing marks or characteristics which relate these shell fragments to firearms in question and so that while the charts are very clear in establishing the distinction between a positive identification and a possible identification, or partial identification, these matters are set out in length and were clearly on the charts which will be presented to the jury.

{2619}

Furthermore, we would contend that the jury, on the basis of the evidence, could conclude substantially more than that these are just chance items which really have little or no significance as with regard to the weapons which are known items.

We would state that, for example, the charts state, for example, I will use as an example 34-H, which states that the bullet fragments had similar rifling only, and therefore, to that extent it is limited.

All of these on others, 33-A, for example, they are clearly set out apart, away from the rest of the items, away from the rest of the examples or samples on the chart, by saying similar rifling only, and set out by Q numbers so that the jury can connect them up with the very specific items, can look at them, and by reason -- have some additional reason to question whether or not they are sufficiently connected up.

In addition to this, the Government contends that the rest of the evidence in the case is relevant in connecting these items to the questioned items which are of similar rifling only, so I think that it is not only the fact that these are found in the particular area in question, but in addition to that, they have similar rifling and could have been fired from certain rifles.

In addition to this, there is evidence of testimony {2620} of witnesses which state and corroborates the fact that a rifle of this type was in a particular area; and I think that that is sufficient to permit the Government to very specifically set out on these charts, in order to aid the jury in making their determination, because the evidence is so voluminous in this case the jury could be confused, and this does not confuse them. This would not mislead in any way. Counsel can bring it up on cross examination. Counsel will have the charts there and can show the jury and emphasize the fact that these are similar in nature only and are items which could have been fired from a given rifle but they could also have been fired from some other rifle of the same kind.

THE COURT: What will be the testimony of the expert on that question?

MR. SIKMA: The testimony of the expert on this -- and I will give you an example on 33-A which is a .44 magnum carbine. You will recall that a bullet fragment was found in the side of Special Agent Williams. It was the one, the bullet fragment that passed through his left shoulder and out the underarm, and then into the side. The bullet jacket of that was recovered. It is Q-1. It is identified, it is Government Exhibit 33-C.

The witness, Government firearms examiner will testify that, for example, that article or bullet was fired {2621} specifically by Government Exhibit 33-A, and that that was fired from that gun to the exclusion of all others.

Now, by contrast he will testify that Government Exhibit 33-J and 33-K, for example, are bullet fragments, one recovered from Williams' car, 33-K, and 33-J recovered from Coler's car, have rifling which has the same number of lands and grooves which could have been fired. It is also a .44 magnum caliber, and could have been fired from Government Exhibit 33-A, but it is not to the exclusion of all other firearms, that is, not to the exclusion of all other .44 magnum Ruger carbines which have a particular and distinct number of lands and grooves in the inside of the rifle. In other words, in the rifling -- but the proof in the case, I believe, we contend shows that only one of those kind of rifles was at the scene on that particular day, being fired by either the Defendant or his companions.

I think that this is relevant to the issue as to whether or not the Government should be able to present this evidence since it tends to show it is circumstantial evidence of a fact question which should be resolved by the jury.

MR. LOWE: Mr. Sikma misstates our objection. We do not believe that he should be precluded from showing this evidence. He should be precluded, however, from putting {2622} it on a chart which purports with the same numbers -- now, again your Honor is allowing them to use the same sequential numbers, you know, weapon 34-A, for example, is the AR-15 in evidence, 34-B, 34-C and 34-D, and so forth -- all purportedly relate to the .223; and with the exception of, I think he said 34-H, they will have evidence which will at least purport to show that all of those items are connected; but as to 34-H the firearms expert will say -- I believe this is a fair summary of what he would say -- is that that round could have been fired from any AR-15. It has the same number of lands and grooves, same rifling, or whatever it might be. It could have been fired from any AR-15 now in this case.

Your Honor, before the experts are finished, there will be evidence clearly that there were two AR-15's fired on that day; and we believe the evidence will show three or four AR-15's being fired by the Government's witness himself. That's why we object to having them put the bullet fragments on the chart for the weapon, 34-A. They don't have a chart for these other AR-15's, however many there may be fairly inferred from that.

Obviously they don't want to suggest there were any other AR-15's. This witness will say the weapons had markings in them and he will identify the markings from the weapon, 34-A. He will testify as to the .223 cartridges {2623} which contained no markings which could have been identified with Exhibit 34-A. There are two weapons already, and there are other reasons, as the evidence will develop, why we may very well show that there were at least three weapons fired on that day. To allow the Government to take fragments that could have been fired from any one of those AR-15's and put them on a chart which only relates to one of the AR-15's and have the Court give its imprimatur to that by allowing it in evidence -- that's what the Government will intend to do is to ask the jury to speculate or to allow the Government improperly to suggest that there is proof that those are related to that weapon.

The expert in each case on the ones we are challenging will say he cannot say that bullet fragment came from that weapon, only a similar weapon to the M-1. He will say it could have come from any one M-1. The same as to the .44 magnum, it could have come from any one.

There is already evidence, and there will be more evidence, there were weapons fired on that day that were never recovered, people who were firing who were never found. We don't know -- I am not sure we will ever know if there was another M-1 or .44 magnum. I am not sure about this. I believe there is going to be evidence there was another M-1, or suggestion, certainly on the {2624} .223 there is going to be direct evidence by the firearms expert. This is very, very improper for them to put them on the chart. Now, if they want to put it on a separate chart or if they want to talk about it while that chart is up there, that's one thing. That's fair argument or its fair evidence for the jury to consider, but to put it right on the chart and have this Court approve it by making it an exhibit is very, very bad and very suggestive.

{2625}

MR. SIKMA: Your Honor, I would just contend that it's, it is not at all misleading since the testimony of the witness was an aid in demonstrating to the jury as to exactly what the witness will testify is contained on the chart. It's there, available, with the distinction.

Counsel can raise it, discuss it all he wants to and the Government does have a right to show, because there is substantial evidence which makes it reasonable as a matter of circumstantial evidence to draw, at least to argue a connection between the two.

Therefore, the Government should not be precluded in presenting demonstrative evidence of this nature. It is not in any way misleading.

THE COURT: I have previously indicated that the Court would instruct the jury that the fact that an exhibit may be marked, for example 33-A, 33-B, 33-C, has no significance

From the dialog and argument this morning I concluded and hold that it is proper circumstantial evidence. However, the Court will consider and request from defense counsel a proper precautionary instruction at the time the evidence is received. I would ask that you submit a proposed instruction to the jury.

MR. LOWE: Yes, sir.

Your Honor, I hope, maybe I didn't make myself clear.

{2626} I would ask that you reserve your ruling until you can see the charts. I think it will make a difference to you if you see the manner in which this is presented on the chart.

THE COURT: As I mentioned on the basis of dialogue, I can certainly reconsider at any time.

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

MR. TAIKEFF: Your Honor --

MR. LOWE: One last thing, Your Honor, and I mentioned this to mention notice. We're trying to work out with Mr. Hultman later on this. We would like to obtain copies, at least if the copies are legible, and I think the FBI makes pretty legible copies, of all of the known fingerprint cards of Leonard Peltier so that we can use them for comparison purposes without fingerprint expert. And I don't know how many that is.

I suspect it's not too many, three or four or five at the most, and would ask that the Government have the FBI produce whatever they do of Xeroxed copies or however they produce them, photographic copies for us. I think one or two we already have, so I'm talking about, or they're already in evidence. I'm talking about any other copies that are not already in evidence or which will not be introduced in evidence in this trial.

MR. HULTMAN: Your Honor, I've gone on the record about discovery again. The knowledge on prints have been known and {2627} I will do my best. But I will be very frank about it, I'm just getting a little bit exhausted in spending my time in discovery every time I turn around concerning matters that have clearly been in the purview and capability and the requesting of the defendant's counsel.

I'm, I'll do my best and that's what I've indicated. I'm not going to certify in any way, though, that I'm going to make a search of the United States to try and discover for the next two weeks whether or not the defendant's prints are somewhere, and then be accused later that I didn't make a good faith attempt and withheld something in the process.

MR. LOWE: As long as they're the ones in the possession of the FBI that's all I ask, Your Honor.

MR. HULTMAN: And that's what I was referring to, Your Honor. Counsel, I can't walk out of this courtroom to find where in the whole United States there may be a set of prints of this particular defendant. I will do my best, Your Honor, but I want to know the conditions and understand on the record that the basis upon which I'm doing it. Not later be accused of not producing something. It was in the file somewhere, someplace of the Federal Bureau of Investigation.

THE COURT: Well, this is hardly a timely request. But I would instruct counsel to make an effort to obtain whatever information in that area you are able to.

MR. LOWE: That this is based on evidence that we did {2628} not anticipate. I don't think it's a burdensome. I appreciate --

THE COURT: Are you suggesting that you are suggesting that there wouldn't be fingerprint evidence?

MR. LOWE: No, Your Honor, there is character in the fingerprint evidence. We didn't believe it would be relevant before in view of our previous discussion.

That's all I have, Your Honor. I believe Mr. Taikeff has something.

MR. TAIKEFF: Your Honor, I have two very brief matters. The first is to indicate to indicate to Your Honor that the special visitation arrangement which Your Honor ordered on behalf of the defense included a period this evening. I mention it to Your Honor that these arrangements include the necessary of a marshal being assigned in the evening. We concluded last night the work we had to do, and therefore will not need the time this evening.

THE COURT: Thank you.

MR. TAIKEFF: I thought it would be appropriate, Your Honor, so that the marshal would not be assigned to work an evening shift.

THE COURT: Thank you. I will advise the marshal.

MR. TAIKEFF: Thank you, Your Honor.

The other matter, Your Honor, is this: Over our objection there has been brought into this trial on a number {2629} of occasions testimony, and indeed sometimes photographs, involving dynamite or other explosives. I'm not going to re-argue that matter at this time. I merely wish to indicate that after considering certain facts and factors which have come to our attention, we believe that there is a possibility that some or all of these explosive devices were supplied, either by a federal agent or by a federal informant.

And we would ask that at sometime before this trial is concluded the United States Attorney's office make appropriate inquiry and certify to the Court that none of the explosive devices which we have heard about or seen any photographs of in this case were supplied through or by federal agents or their informants.

The reason that we ask that, Your Honor, is not out of idle curiosity, but if the defendant has to suffer the prejudice of such evidence coming before the jury we believe that the defense at the very least should have an opportunity to prove to the jury if that is the case that those explosives were there with the assistance, if not with the encouragement, of federal agents or their civilian employees.

MR. HULTMAN: Your Honor, again we get a shotgun request in the middle of the trial and my only response to this is that there is a proper procedure and a proper showing that must be made. And it isn't just a bald statement by counsel in the middle of the courtroom have an infinitesimal possibility {2630} that something somehow may have happened. I would only indicate to the Court that my response is that the Government will stand on the position that we object to any such, only such time as a proper showing with proper evidence has been made by the defense, and then the Government will respond in whatever proper the Court at that time will indicate.

But I'm not about again to go out and go on a fishing expedition for the next month and a half throughout the United States and then being accused that I didn't check something out in Tubalas, wherever that is.

MR. TAIKEFF: Your Honor, Mr. Hultman has twice in the last ten minutes suggested that an accusation of the kind of which has not been heard in this trial is going to be made against him.

The one time that Mr. Hultman did not in fact produce all of the information that was available was when he himself was not accurately informed by the Canadian authorities concerning the existence of a wiretap on Mr. Peltier when he was incarcerated in Canada. And never did we take the position that he had any complicity in that misstatement of fact. Indeed our position was clear. He was misinformed by the Canadian authorities and it was only when we produced certain documentation that the Canadian authorities then made a complete disclosure to him.

We have not to this date, and we do not anticipate, {2631} making any accusations against Mr. Hultman that he made any bad faith searches or otherwise conducted himself in an improper way.

And I wish he would not continue to suggest that such was possible because we don't think it's possible. I don't know why he thinks it might be possible. Now, the point is that Mr. Hultman need not make a search for a month or more. If he wants to go on a fishing expedition I would be glad to join him. The weather is turning quite nice. However, I would ask that he pick up the telephone and call the Department of Justice and say, or the FBI or however it's done, I've never had the privilege of being privy to the inner chamber, but however it's done he can find out whether or not there are any Government agents or informants who played an instrumental role in developing or making available the explosives about which the defendant has heard a great deal along with the jury in the course of this case.

It does not require extensive effort on his part. I think it would appropriate for him to ask, and if he's told that there is no such thing, all he has to do is repeat that to Your Honor and the matter is closed in this proceeding.

THE COURT: I would ask counsel, do you have any evidence that any explosive devices were supplied by federal agents or their civilian employees?

{2632}

MR. TAIKEFF: We have some indication that such is the case, Your Honor.

I would tell Your Honor that I personally have conducted an investigation and I have enough information that I think is reliable. To use a phrase that the Government uses quite often, I have one or two reliable informants of my own. And I am satisfied that the information I have received warrants my making the application. I am not in the habit of making a frivolous application that is not based on some rational reason. I would call to Your Honor's attention the fact that in Oregon a number of people were charged in federal court, I believe in connection with the posse d on of ten cases of dynamite, and it was promptly destroyed by the FBI, or the federal authorities. And I trust that I'm accurate in saying that it was the FBI. And as a result a United States District Court judge dismissed that case because of the improper behavior.

That is one of the factors that I'm taking into consideration in making the application because I believe the dynamite can be traced. And I believe what my confidential informants have told me is probably true, that that dynamite could have been trace and it would have been traced back to a Government informant.

Now, it is not unheard of for Government informants to act as provocateurs, particularly in small political {2633} organizations that are not looked upon with great favor. Because there's nothing better than in one way instigating people to do things which causes them to cross the line between legality and illegality and then hustle them off to jail so they can no longer be a thorn in the side of those don't appreciate their existence. I think the episode with John Trudell, the national director of the American Indian Movement, who is now serving sixty days because he said something to the marshal which the marshal didn't like hearing is a small example of what I'm talking about.

Now, I believe, Your Honor, that there is a sufficient basis to ask the Government to make an inquiry --

THE COURT: I might interrupt you at this point and say that I take exception to the suggestion that Judge Davies would have --

MR. TAIKEFF: Not Judge Davies. I was talking about the action of the marshal, Your Honor.

THE COURT: I know, but Judge Davies would not have acted unless there was evidence to convince him that it was a proper act to take.

MR. TAIKEFF: Well, this morning they barred a very important person from the American Indian Movement on the ground that they didn't like the way he closed the door when he left the courtroom. Isn't it amazing that only American Indian Movement people seem to be doing things which the {2634} marshal finds offensive.

THE COURT: I personally witnessed a very hard slamming of the door by someone when they left the courtroom. I don't care whether they are members of the American Indian Movement or whether they are members of any other society or movement.

It is not allowed in this courtroom, and the marshals are instructed not to permit it to go on. The purpose of this courtroom is try the issues stated in the indictment without distraction from the audience, without demonstrations. And demonstrations and distractions will not be allowed.

MR. TAIKEFF: Well, Your Honor, Your Honor was sitting on the bench and I was in this courtroom when Mr. Trudell was having his exchange with the marshal. And neither one of us, I'm sure, was aware of what was going on. So it couldn't have been very disruptive.

In any event the point is that my professional experience over the last nine years shows that the nature and the quality and the extent of the things done by people who are in the employee of the United States Government as informants is outrageous, particularly in connection with the political cases I'm speaking from actual revelations, not things which I read, not things which I'm speculating about, but things which I know because they were revealed in open court.

{2635}

These things do happen, Your Honor, whether they happen in and around Fargo, whether they happen within Your Honor's professional experience is not the entire question. I represent to Your Honor that they happen, they happen regularly. They happen in drug cases, they happen in political cases.

THE COURT: This is not a political case.

MR. TAIKEFF: This is not a political case?

THE COURT: No.

MR. Taikeff: We're dealing with a person, Your Honor, who is politically active in a political organization.

THE COURT: The only issue before the Court in this case is the issue as set out in the indictment.

MR. TAIKEFF: Well, maybe if Your Honor allows the Government or requires the Government to make their inquiry and in fact we get an answer to that inquiry, Your Honor might find that this is indeed a political case.

MR. CROOKS: Your Honor, I would like to rise to one point which counsel went into, and this is the Oregon matter, the destruction of dynamite in Oregon.

Counsel misstates the record by not stating it completely. The dynamite was destroyed in Oregon because it was unstable. It presented a danger to the community and the officers. The indictment was dismissed by the district judge and that issue is now up on appeal before the 9th Circuit. And counsel is {2636} well aware of the circumstances surrounding that case, and the reason for the problem that arose. And I will not comment on the court's ruling of the district court ruling, but that is a matter which is up on the appeal.

The United States has appealed, not only the suppression of the evidence, but also the dismissal. And that decision has not yet been handed down. And I think it's unfortunate that counsel tends to bring a matter like this up which is under litigation because counsel knows full well that that dynamite was not destroyed for any purpose other than what was stated by the United States that the dynamite was unstable and could have well blown up and destroyed the evidence room or wherever else it was stored. And that is a matter of litigation which has been well established and is now up on appeal. And I think it's unfortunate that counsel even suggested something of that kind.

MR. HULTMAN: Might we move on Your Honor so that we might all be able to go fishing, Counsel, this spring as counsel has suggested?

THE COURT: Are there any other matters to be presented this morning?

MR. TAIKEFF: No, Your Honor.

THE COURT: Yesterday I reserved ruling on Exhibits 145 and 147 which were offered in evidence.

{2637}

My ruling will be that the exhibits will be received in evidence, but I will instruct the jury that the only relevant portion of the exhibit is paragraph 10 on each exhibit. And that is relevant only on the issue of credibility of Mr. Zeller.

The jury may be brought in.

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

THE COURT: As the jury probably surmises the delay this morning was again on legal matters that had to be resolved before we continued with the testimony. One of those legal matters related to an offer of two exhibits, Defendant's Exhibit 145, Defendant's Exhibit 147. Each of these exhibits is an affidavit of William P. Zeller.

The jury may recall that William P. Zeller identified himself as an Oregon State Policeman who was the supervising sergeant of the latent print fingered section of the identification bureau in the Oregon State Police.

{2638}

The testimony of the witness on the witness stand is the substantive evidence in the case. In other words, it's the evidence which the Court, which the jury should consider. However, as you may recall, there was evidence brought out that Mr. Zeller made two affidavits and these affidavits are identified as Exhibits 145 and 147, one was later than the other, and there is a difference in what was stated in paragraph 10 in each of these affidavits.

These two exhibits are received only by reason of that difference in the statement in paragraph 10. That is the only part of the exhibit that is relevant and that part of the exhibits and that part of each of the exhibits is relevant to the issue of the credibility of the witness.

As you may also recall on my opening instructions, I told you that it is the duty of the jury to determine what credibility should be given to the testimony of any witness and these two exhibits are received on that issue of credibility.

MR. ELLISON: Your Honor, before we go further may we approach the bench on that matter?

THE COURT: You may.

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

MR. ELLISON: Your Honor, upon checking my notes, it {2639} became apparent there is another passage of both of these documents which are the same in the March 4th affidavit and then then the April 4th affidavit which pertained to an alleged identification by Sergeant Zeller of a fingerprint of Leonard Peltier's on the microphone inside the mobile home. Mr. Zeller gave no testimony to that effect during trial and there was the testimony of his that he may have told Special Agent Hancock that he did not make such an identification in a November 17 interview and there was testimony by Special Agent Hancock that what he described as a preliminary examination, or the results thereof were to the effect that he had tested the fingerprints lifted from the microphone inside the mobile home and found they did not compare to those of Leonard Peltier. We would therefore ask the Court to allow for that section of his affidavits to also be pointed out to the jury because this too goes to the credibility of not only Mr. Zeller but possibly also other individuals.

MR. CROOKS: I don't have the slightest idea what he's talking about. Sergeant Zeller testified he made the examination of the microphone and he testified that he did make later identifications but the identifications, I believe, and I didn't go into it because I wasn't using him as an expert. The testimony would have been that he made the identifications basically before the Oregon incident. The FBI had no reason to go back to Mr. Zeller because Mr. {2640} Mulholland was there and gave them the identifications. It seems to me that that issue has never been raised by the evidence one way or the other. It seems to me that all need to be said by those two exhibits has been said and we object to anything further being commented by the Court. If Counsel wishes in closing argument to raise that type of point, that's his option. I don't care to make any further comment.

MR. ELLISON: We have nothing further.

THE COURT: Very well.

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

THE COURT: You may proceed.

MR. HULTMAN: The plaintiff calls Angie Long Visitor.

THE COURT: Counsel approach the bench.

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

THE COURT: I am told that the witness cannot be located. I am surprised that her Counsel is not present. He apparently is in St. Paul.

MR. TAIKEFF: She's been on the floor all week because I've seen her from time to time.

THE COURT: All week isn't significant if she isn't here this morning. I'm told she was advised to be here at 9:00 o'clock.

MR. HULTMAN: Your Honor, as late as yesterday {2641} specifically I personally saw her. I never talked to her because of conditions she refused to, and upon the statements of Counsel here in the courtroom. I have not sought to. She was instructed yesterday that she was to appear here to testify at 9:00 o'clock this morning. I know she was specifically told here in this building.

Secondly, her counsel was called yesterday and so indicated to him. Now that's all I can do, Your Honor. I can't do any more than that when I'm placed in the posture I'm placed in.

THE COURT: I'm not suggesting you can. I'm just a little surprised, number one, she's not here and, number two, her counsel is not present because I would have expected him to be present in court if he knew she was going to be testifying.

MR. TAIKEFF: Could I be allowed to leave the courtroom for a few minutes and make some inquiries? I may be able to help.

MR. HULTMAN: If she doesn't appear, Your Honor, I'm going to move to revoke the bond.

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

THE COURT: Members of the jury, we are in an unexpected delay. It relates to the availability of a witness and inquiry is being made at this time. I think that there is {2642} nothing for us to do except to stand in recess until such a time as I have more information. So the Court will stand in an indefinite recess and as soon as we are able to we will continue.

(Whereupon, at 10:06 A.M. recess taken.)

(Whereupon, court resumed at 10:40 o'clock, A.M.)

THE COURT: The jury may be brought in.

MR. TAIKEFF: The witness is standing outside the door, Your Honor.

THE COURT: Thank you.

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

THE COURT: You may proceed.

MR. HULTMAN: Plaintiff calls Angie Long Visitor.

ANGIE LONG VISITOR,

being first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. HULTMAN

Q Would you state to the jury your name, please.

A Angie Long Visitor.

Q Angie, maybe you could put this mike closer.

And where do you live?

A Oglala.

Q And where in Oglala?

A In Oglala housing.

Q Have I ever had an opportunity to talk to you about the {2643} matters that happened on the 26th of June of 1975?

A I don't think so.

THE COURT: Speak up a little bit so we can hear you.

A I don't think so.

Q (By Mr. Hultman) You have on one other occasion testified concerning events that happened on the 26th of June under oath, have you not?

A Yes.

Q And is that in 1975?

A Yes.

Q Sometime in November?

A (No response.)

Q I want to take you back to the month of June of 1975 and ask you where were you living at that time?

A Jumping Bull's.

Q And when you referred to Jumping Bull's, would you explain to the jury what it is you mean by Jumping Bull's.

A Cecilia and Harry Jumping Bull's house.

Q And I would ask you to look --

THE COURT: Just a moment. Defense counsel did not hear the answer to the question. Would the reporter read it back.

(Whereupon, the last answer was read back.)

Q (By Mr. Hultman) I would like to have you turn and look at the exhibit Angie, that is behind you here in the courtroom {2644} and it's been marked as Government's Exhibit No. 71. On that exhibit you will see a highway which is marked U.S. Highway 18 and you will see some various objects up here on the exhibit, something in the shape of a rectangle that says, "Jumping Bull Hall," and there are other residences that you see here and I ask you if you generally recognize what is portrayed on Government's Exhibit 71?

A Yes.

Q Speak up just a little louder so that everyone can hear.

You recognize the area that's portrayed on this map?

A Yes.

Q And what is that area?

A Jumping Bull's.

MR. HULTMAN: I think that answer was Jumping Bull's, Your Honor.

Q (By Mr. Hultman) Now you then recognized the general area here as being Jumping Bull's, is that right?

A Yes.

Q And where was it that you lived in Jumping Bull's? Could you describe the house that you lived in or slept in at that time?

A In the green house.

Q A little green house.

MR. HULTMAN: Counsel hear the response at all?

{2645}

MR. TAIKEFF: Just barely. Would the Court mind if Counsel moved over to the other side?

THE COURT: You may.

MR. TAIKEFF: Thank you, Your Honor.

Q (By Mr. Hultman) Now would you show us, show the jury with this pointer on this map, if you can, by looking at some rectangles that appear on the map which previously have been testified to to represent houses in this area where the green house is that you have just testified to.

A Right here (indicating).

MR. HULTMAN: Let the record show that the witness has identified the green house.

Q (By Mr. Hultman) Now about how long had you lived there?

A About seven years.

Q And was there anyone who lived with you at that time?

A My husband, my kids.

Q And how many children did you have, do you have?

A Three.

Q Three youngsters. Did you have three at that time?

A Yes.

Q Now who lived, was there anybody else that lived in any of the houses that are represented here on Government's Exhibit 71 which is the Jumping Bull property, anyone that lived in the house next to where you lived?

A My grandma and grandpa.

{2646}

Q What are their names?

A Harry and Cecilia Jumping Bull.

Q Would you describe what kind of a house or what color of a house they lived in?

A It's a white house.

Q Now could you point out for the --

Could you point out to the jury which one of those houses it is, Angie?

A Right here (indicating).

MR. HULTMAN: Let the record show that she pointed out the house that is referred to as the "white house."

Now you are here under subpoena, are you not?

A Yes.

Q Were there any other houses in that same general area that anybody lives in during the period of time?

A Wanda Sears right there (indicating).

Q Is that the point here? Wanda Sears you say lived at that house during that time. Who lived in the Wanda Sears house besides Wanda Sears?

A Wanda and her kids.

Q Was there any other person that lived there at that time?

A No.

Q Now was there anybody, and I'm talking about generally now, I'm not talking necessarily the very day, whether people were there or not. Do you understand my question? I'm just asking {2647} if people lived in this general period of time in any of these houses, then we'll get to the exact day. Was there anybody that lived in any of these other houses up in this area next to the house, the green house you said you were in and the grandparents, the Jumping Bulls? Did anybody live in this house that's located here on this exhibit?

A No.

Q What kind of a house was that, do you remember?

A A log house.

Q A log house. All right.

Now there is another building of some kind shown over here in this area. Did anybody live in that house?

Q Then up here is an object called "Jumping Bull Hall." Do you recognize that?

A Uh-huh.

Q Was there anybody that lived in that house?

A No.

Q Now I'm going to take you to the -- well, at that same period of time was there anybody else that lived in the total area of Jumping Bull's property that you had seen prior to the 26th of June, 1975?

A Just around there?

Q No. In the whole area, including down by, along the stream or in the woods or anywhere on the property.

{2648}

A Yeah. Up there (indicating).

Q When you say, "Yes, up there," to what area are you referring?

A Tent city.

Q Now there were some people then that lived in some tents, is that right?

A Yes.

Q Do you remember and could you tell the jury who it was that lived in the tents during that time?

A Give the name?

Q Yes. Could you tell the name or names of any persons that you recall.

A Leonard Peltier.

Q Would you describe him to the jury. Would you describe his appearance, as you recall.

MR. LOWE: Your Honor, we could not hear the response over here.

MR. HULTMAN: The reporter would read the response back.

(Whereupon, the following answer was read back: Answer: Leonard Peltier.)

MR. LOWE: Could the witness turn around if they're not actually using the chart, while they're not using it and turn around. It would help us hear.

MR. HULTMAN: I'm going to have to come back to the {2649} chart quickly. I'll do my best to do that, Your Honor.

{2650}

Q (By Mr. Hultman) And would you describe this person to us?

A He is just sitting right there.

Q Pardon?

A Sitting right there.

Q All right -- did counsel hear the response -- and would you indicate where you met --

MR. LOWE: (Interrupting) If that was an identification of Mr. Peltier, we will stipulate that she made an identification of Mr. Peltier. I didn't know what it was, that's all.

MR. HULTMAN: Let the record so show.

Q (By Mr. Hultman) Now, was there anybody else that lived in the tents that you recall?

A Bob Robideau.

Q All right, and would you for the jury --

THE COURT: (Interrupting) Did you get that response?

MR. TAIKEFF: Just barely. Of course, I know the answers, I am able to pick it out. I don't know whether every juror is hearing the answer.

THE COURT: Are you jurors able to hear the witness? All right, proceed.

Q (By Mr. Hultman) Would you describe Bob Robideau to the jury?

A No, I can't.

{2651}

Q All right. You knew him well enough to know his name, is that right?

A Yeah.

Q All right. Now, were there any others that lived in the tent area?

A Dino Butler, Neelock.

Q All right. Just take it slow for us.

Could you describe just in a general way Dino Butler?

A Medium tall is all.

Q You knew him well enough to know his name, is that right?

A Yes.

Q And you know him well enough that you would recognize him if you saw him today, is that right?

A Yeah.

Q All right. Is the same true with Mr. Robideau, with Bob Robideau?

A Um-hum.

Q Now, you mentioned then another name, and what was that, who was that?

A Neelock.

Q All right, and would you describe Neelock to us, do you know her by any other name?

A No.

Q All right. Would you describe Neelock to the jury, please; would you tell us about how old she was, for example?

{2652}

MR. TAIKEFF: Your Honor, perhaps I could assist. Would Mr. Hultman be interested in knowing if some of these people are in the courtroom?

MR. HULTMAN: No. I have no particular reason for anybody to stand up in the audience at this particular time.

Q (By Mr. Hultman) You knew her well enough to recognize her, is that right?

A Yes.

Q And you would know her well enough to recognize her today, is that right?

A Yes.

Q All right. Who else was living in the tent area?

A Jean.

Q Jean, and could you tell the jury anything about Jean, I mean, where she was from?

A No.

Q Or anything at all about her?

A No.

Q All right. Was she associated with anybody in particular?

A No.

Q For example, any of the men or anything?

A No.

Q All right. Do you recall any other persons that lived in the tent area, were there any other women that you recall?

{2653}

A Lynn.

Q All right. Lynn, do you know her by any other name or any additional name?

A No.

Q Was she -- do you relate her to anybody else in any way?

A No.

Q All right. Do you know anything about her or where she was from or what tribe she belonged to?

A No.

Q All right. Were there any other women that you recall that lived in the tent area?

A No.

Q All right. Now, were there any other men that you recall that lived in the tent area or boys or young men?

A Joseph Stuntz.

Q All right. Joseph Stuntz. Did you know Joseph Stuntz enough at that time to recognize him?

A Yeah.

Q All right. Do you know where he was from, what tribe he belonged to?

A No.

Q All right. Were there any other men?

A Norman Brown.

Q Norman Brown, do you remember anything about him, what tribe he possibly came from?

{2654}

A No.

Q All right. Do you remember any other young men or men who lived in the tent area?

A Norman Charles.

Q Norman Charles. There were two Normans then, is that right?

A Yes.

Q And did you know what tribe or where he came from?

A No.

Q All right. Would you know him again if you saw him, be able to recognize him?

A I don't know.

Q All right. Were there any other men or boys that you recognize that lived in the tent area?

A No.

Q Had you -- about how long a time had you seen, for what period of time had you seen these persons that you have just identified?

A How long?

Q Yes, how long had you known them or had you seen them, do you remember the first time that you saw them approximately?

A No.

Q Had you seen them, had you known them very long?

A No.

Q About how long had you known them?

{2655}

A About a weeks two weeks.

Q All right. Now, prior to -- where was it that you first saw them or met them, was it on the Jumping Bull property?

A Yes.

Q All right. Had you at any time to your knowledge before the week or two on the Jumping Bull property, had you ever seen to your knowledge any of these people before?

A What do you mean?

Q Had you ever seen them or known them before that time?

A No.

Q Now, I wish to take you to the morning of the 26th of June of 1975, and I want to ask you late in the morning were you in the Jumping Bull area somewhere that morning?

A Yes.

Q And would you tell the jury where it was that you were late in the morning at the time some things began to happen?

A Right there (indicating), grandma and grandpa's house.

Q All right. What were you doing?

A I washing dishes.

Q All right. What, if anything, happened that came to your attention, did you have an occasion to look out your window at any time?

A No.

Q All right. What was it that came to your attention that morning for the first time?

{2656}

A Well, we heard something, firecracker or something.

Q All right. Where was it that you heard something like firecrackers?

A I was in the house.

Q