VOLUME XV

Pages 3043-3241

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TUESDAY MORNING SESSION

April 5, 1977

Pursuant to adjournment as aforesaid, at 9:00 o'clock, a.m., on Tuesday, April 5, 1977, the Court met, present and presiding as before; and the trial proceeded as follows, the Defendant being present in person:

THE COURT: Have counsel resolved the matter of 34-B?

MR. LOWE: I believe we have, your Honor. I have just been given a written stipulation which appears to be in order. I would like to take it up with Mr. Taikeff. I don't think there would be any problem.

MR. CROOKS: Because it involves the witness on the stand, I would like to delay until this is taken care of.

(Counsel examine document and confer.)

MR. TAIKEFF: Do you have the original?

MR. CROOKS: That is the original, I think, and two copies.

MR. TAIKEFF: This is the original?

MR. CROOKS: Yes.

(Counsel confer.)

MR. TAIKEFF: I have signed the stipulation, your Honor, at this time. Mr. Peltier is looking it over, and he is about to sign it.

While that's occurring, perhaps I could take a moment of the Court's time with three minor housekeeping matters.

{3044}

THE COURT: Very well.

MR. TAIKEFF: I understand the Court has obtained the services of a Lakota English interpreter, and I am in need of the interpreter for interviewing a witness. I am wondering whether it is possible to have that interpreter available during the luncheon recess so that I can use the interpreter's services for about a half hour or 45 minutes.

THE COURT: Mr. Suby has made the arrangements for the interpreter. Mr. Suby, I do not believe the interpreter lives here, does he?

MR. SUBY: He does not. He lives in Wakpala, South Dakota. He would be available only on about 24 hours' notice.

MR. TAIKEFF: All right, thank you.

Last evening Mr. Lowe --

THE COURT: (Interrupting) Are you giving notice that you want him?

MR. TAIKEFF: No. I was sort of withdrawing the request because I don't know whether that witness will be available tomorrow and would not want to bring somebody up from South Dakota until I had a very definite arrangement in mind.

THE COURT: Very well.

MR. TAIKEFF: Then I will renew the request.

As I started saying, last night Mr. Lowe and I {3045} interviewed Jimmy Eagle at the Clay County Law Enforcement Center. I don't know what the intentions are with respect to keeping him here for the next several days. He may very well be called by the defense within the next two or three days.

Since we are having certain problems about residents of the Reservation getting here, we might have to take him out of turn in order to keep our case going uninterrupted so we would request that he not be sent to any other facility except one that is very close so that he would be available on one or two hours' notice.

And the last item is to indicate that we will in fact be calling Myrtle Poor Bear, and we wish to have the Marshal's Service notified by or through the Court to make her available to be called within the next couple of days.

We assume the Government is going to rest today, and our efforts are orientated around that assumption.

MR. ELLISON: Your Honor, I would like to bring something to the Court's attention for information purposes.

I spoke to Deputy Marshal Bruce Jacob yesterday afternoon in Rapid City -- then you have the information, your Honor.

MR. TAIKEFF: It was the thing that I advised the Court at the side bar concerning the transportation problems because of the snowbanks.

{3046}

THE COURT: All right. There is one other matter before the Court here, and that is the motion of the United States for compliance with Rule 17(b), Federal Rules of Criminal Procedure relative to the calling of witnesses by the Defendant.

MR. TAIKEFF: Your Honor, I am sorry to interrupt, but I think we have resolved that informally.

I have divided the agents whom we might call into two categories, those that we are virtually certain of calling -- and Mr. Hultman has informed me that they will be brought here either tomorrow, or those that can't make it tomorrow will be here Thursday.

I have given him a second list of those that we might call but we could not say with any strong degree of certainty, so they are going to remain on call but will not be brought to Fargo; and he has agreed to comply with that request, so I think the matter is resolved.

THE COURT: Thank you. Then there is no need -- well, I have another matter.

Mr. Hultman, are you in agreement with that?

MR. HULTMAN: Yes, that is correct, your Honor.

The rest of my motion though I would hope would still be in the same posture, with reference one, to such witnesses as -- or possible witnesses as Mr. Skelly; and two, also I think there are some other matters in terms {3047} of whether or not specific witnesses at a given time -- I think we are probably going to have to meet those issues as any one of them is called with reference to the Rule, but I am in no posture right now because I don't know for certain which ones, other than the seven agents -- six agents and one other person that are definitely going to be called.

{3048}

THE COURT: The Court has authorized the issuance of subpoenas on the certification of defense counsel that a certain witness is necessary for an adequate defense. At this point the Court does not incline to go behind that certification. I think it would involve a lot of time and probably wasted time, and with respect to any individual witness or with respect to the testimony of any witness the Court will, the Court is confronted with motions to quash subpoenas, or if the Court is confronted with objections to testimony on the grounds of relevancy or some other matter the Court will act on it at that time.

MR. HULTMAN: Very good, sir.

THE COURT: Now, one other matter, I have before me a motion for the issuance of a subpoena duces tecum directed to the Oregon State Police commanding that authorities representative arrive and bring with him or her a complete copy of the Oregon State Police Department report, three pages of which are attached to Appendix A. This matter was referred to in the discussion that was had yesterday morning prior to the jury having been brought in. And I want, I'm wondering if the defense doesn't have all the information required.

MR. TAIKEFF: The answer to Your Honor's inquiry is that we do not. That is a different report. I alluded to that yesterday but --

THE COURT: You alluded to it yesterday. It's typed {3049} this way, it's typed vertically on the sheet of paper instead of horizontally. It seems to contain substantially the same information.

MR. TAIKEFF: No, Your Honor, I believe that is not correct. As I read the report which Your Honor read from there by revealing that we had a copy of the same report, that was a retrospective report written sometime after the 19th of November because it makes reference to events occurring on the 19th of November and going back to the 15th of November.

That is sort of a summary report of all aspects of the Oregon State police activity. The pages which are attached to the subpoena, or the request for the subpoena, are pages which are attached to a 302. And because of the fact that the list seems to be essentially the same as the one in the report which Your Honor read from, and because of the numbering in the upper left-hand corner of those pages, or at least the first of those three pages, we believe that that comes from a report which details the finding of those objects which are contained within that list which is not the case with respect to the report that Your Honor read from.

We think that is a report of activities of the 15th, or at least a portion of it, and that's why we have requested in the subpoena the balance of the report, or the entire report of which those three pages are a part. We believe {3050} that the result will be the production of a document which reflects the detailed activities of the search on the 15th.

THE COURT: Does the United States have any information on this matter?

MR. CROOKS: None whatsoever, Your Honor. I have no idea if there is any other report than Mr. Hanson's. Frankly I did not have even his report prior to it being obtained. The only thing that we used was the version which was reduced in 302 form.

Whether he has an additional report or not I have absolutely no knowledge.

THE COURT: All right. I have one other inquiry to make of counsel. You've had investigators appointed. The evidence has indicated that at least one investigator has made a trip out to Oregon. Was that not, was that matter not checked into by your investigator?

MR. TAIKEFF: Our investigator has no access to police reports. I wish it were otherwise, and that all counsel, both Government and defense, had the same access to Government documents. But it's not the case.

And we have surmised from what we see attached to a certain 302 that indeed there is another report and that the schedules on that as yet unproduced report were probably used as a basis for providing a certain portion of the retrospective report. But we, we have no direct knowledge that there is such {3051} a report. We have very strong indication that there is such a report. Those schedules we believe are that indication.

MR. CROOKS: Your Honor --

MR. TAIKEFF: Our understanding by the way is that all of the weapons were taken out of the mobile home at the same time. The reason we're pursuing this, in case it is unclear to the Court or to Government counsel, is that by way of explaining the absence of the AR-15 from the photograph which showed all the weapons except the AR-15. The agent on the stand said that that weapon was discovered later, or the next day, I don't remember exactly what his testimony was. We believe --

THE COURT: He said it wasn't discovered yet?

MR. TAIKEFF: He said it wasn't discovered yet.

THE COURT: He said it hadn't been found yet.

MR. TAIKEFF: He said it hadn't been found yet. We believe, because of the information that we have, that all the weapons were in one place and they were taken out of the mobile home at the same time.

We further believe that the report which we've asked for will confirm that fact, that they were all discovered at the same time in the mobile home because the three pages which are attached to the request for the subpoena duces tecum list all of the things taken out of the mobile home, and that list includes the AR-15.

{3052}

MR. CROOKS: Well, I might just add, Your Honor, that I don't think that counsel heard the testimony the same way I did. My recollection of the testimony was that Mr. Zeller was very carefully going through the individual items, and there was no mass exit of anything from that mobile home until it had been completely dusted for fingerprints. And that is confirmed by Mr. Hanson's report of which the Court has seen, that at as matter of fact they could not even complete their search the first day because the time had run out and they sealed the matters up and went into it the next day.

The testimony of the witness was simply, was that the AR-15 was not in the picture because it had not yet been found. I don't believe that he seated or even knows exactly when that weapon had been found, and there was no testimony to that effect. But that is I think beside the point. As far as I'm concerned, through the Federal Bureau of Investigation, I will request of Mr. Hanson that he have any additional report. However, I do not want to assume, if the Court is inclined to grant the subpoena, responsibility for getting it there. If the Court wishes to grant the subpoena that's, I think, something within the discretion of the Court. But I will on my own attempt to contact Mr. Hanson and find out if there is any other report; and if there is, have it sent to us and relay it to counsel.

{3053}

But if the Court feels the subpoena is necessary I do not wish to have my representation taken in lieu of the subpoena because that, if they wish to have an actual subpoena and actually bring him in, fine. But I will voluntarily attempt to ascertain if there is another report, and if there is one I will furnish it.

THE COURT: Well, if counsel will go forward on the basis of your representation then I won't issue the subpoena. If they still ask for the subpoena I'll issue the subpoena.

MR. TAIKEFF: We're asking for the subpoena, Your Honor. We feel that we're entitled to have a subpoena issued.

The only reason we have to ask Your Honor is because we have an indigent client. Otherwise it wouldn't be necessary, we'd go to the Clerk's office, prepare the subpoena, deliver it to the marshal and we wouldn't have to seek the Government's assistance in that regard. We'd much rather save the favor for some other time. When we can't do something via subpoena, we'll ask the Government to help us then.

MR. CROOKS: This is why I stated, Your Honor, I do not wish to have any representation taken by counsel of whatever list they have because I don't guarantee I can guarantee the production of anything else. This is not an agency under the control of the United States. But I will make that attempt, and if I locate such documents subject, I {3054} suppose, to any instructions that I might have from the Oregon State Police, I will make them available to defense counsel. But I do not wish to assume that responsibility in lieu of counsel whatever they wish of the Court.

THE COURT: Very well. Is there anything else to take up?

MR. TAIKEFF: No, Your Honor.

THE COURT: Jury may be brought in.

MR. HULTMAN: Your Honor, we do have just one brief matter.

MR. SIKMA: Your Honor, when the firearms examiner, Mr. Lodge, is on the witness stand he's going to be referring to the weapons over there. I wonder if it would be all right if they would be brought a little bit closer so we wouldn't have to go back and forth across the courtroom. They are numerous firearms there. If we could wheel that stand up a little closer here it would probably be easier for us.

MR. LOWE: In here? We have no objection.

MR. SIKMA: If there's no objection to that we'd appreciate that.

THE COURT: Very well. That will be done.

You may now bring in the jury.

{3055}

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

WINTHROP LODGE,

being previously sworn, testified further as follows:

DIRECT EXAMINATION CONTINUED

BY MR. CROOKS:

Q Mr. Lodge, when we finished yesterday I was asking you about various fingerprints which you had found and I'd like to go back, if I could, for a moment to one of the first fingerprints you testified about and that being the fingerprint which you identified as having come off of the inside of the door handle of Special Agent Williams' car shown in Exhibit 9A. Now I would like to hand you Exhibit No. 2 and ask if you can identify that exhibit.

A Yes, sir, I can.

Q What is it?

A This is a rubber lift that I use to lift the latent print that I developed on the inside door release handle on this automobile shown in the photograph marked Exhibit 9A.

Q And is that the same fingerprint that you identified as being the latent fingerprint of Robert Robideau as shown by his ink print card, Exhibit No. 3?

A Yes, sir, it is.

MR. CROOKS: The United States will offer Exhibit No. 2.

MR. LOWE: No objection, Your Honor.

{3056}

THE COURT: Exhibit 2 is received.

Q (By Mr. Crooks) Just again with regard to Exhibit No. 2, which fingerprint or which finger, if any, does that print correspond with on Exhibit No. 3?

A It corresponds with the ink fingerprint in the No. 6 finger block for the left thumb.

Q What is your opinion as to the comparability, if any, between those two exhibits?

A There is no doubt in my mind whatsoever.

Q That they are?

A They were made by one and the same individuals.

Q Now I believe as we finished yesterday I was beginning to go into Mr. Peltier's print, prints, and I had shown you Exhibit No. 38A, and was it your testimony that that is an exhibit that you have seen before and are familiar with?

A Yes.

Q Insofar as that exhibit is concerned, did you make various comparisons between the prints contained on Exhibit 38A and various items that you found in or around the tent area?

A Yes, sir.

Q I'd first like to hand you Exhibit No. 12 and ask you if that's a vehicle you've seen before?

A Yes, sir.

Q And where did you first examine that vehicle?

A I examined it at the maintenance compound in Pine Ridge.

{3057}

Q And did you dust that vehicle to determine if any latent fingerprints of value could be found?

A Yes, sir, I did.

Q And in your examination did you examine the rear view mirror of that vehicle?

A Yes, sir, I did.

Q And what if anything did you find?

A I developed a latent print on the back of the rear view mirror that was attached to this vehicle.

Q Now I'd like to hand you Exhibit 38D and ask if you can identify that.

A Yes, sir, I can.

Q And what is it?

A This is a photograph of the list that was used to lift the print, the latent print that was developed on the rear view mirror.

Q And did you make a comparison between that exhibit that I have just shown you and the latent prints contained on 38A?

A Yes, sir, I did.

MR. CROOKS: United States would offer Exhibit 38D.

MR. LOWE: Are you saying E?

MR. CROOKS: D as in dog.

MR. LOWE: No objection, Your Honor.

THE COURT: 38D is received.

{3058}

Q (By Mr. Crooks) 38D now having been received, I hand it to you and ask again if you have made a comparison between 38D which you previously identified as a latent print developed on the rear view mirror of Exhibit No. 12, the red and white van, and ask if you've made a comparison between that and any of the fingerprints contained on Exhibit 38A which has been previously identified as the fingerprint of Leonard Peltier?

A Yes, sir, I did.

Q And what comparison, if any, did you make?

A I found that the latent fingerprint appearing in this photograph marked Exhibit 38D and the ink fingerprint appearing in the little finger block or the No. 5 block on this fingerprint card bearing the name Leonard Peltier and marked Exhibit 38A were made by one and the same individual.

Q Did you during the course of your examination prepare any charts which would illustrate your findings?

A Yes, sir, I did.

Q I hand you Exhibit No. 42 and ask if you can identify that?

A Yes, sir. These are the charts that I prepared.

{3059}

Q And which exhibits are shown in the chart?

A The one marked --

Q (Interrupting) Well, that's not yet in evidence. I guess you really shouldn't be showing it to the jury, just relate orally if you would.

A Actually there are photographic enlargements of first, the latent print that was developed on the back of the rearview mirror.

Q And what was the number on the print that you just handled?

A That's Exhibit 38-D.

Q O.k.

A And the inked fingerprint appearing on this fingerprint card marked Exhibit 38-A and bearing the name, Leonard Peltier.

Q All right, and was this an exhibit prepared either by yourself or under your direction and control?

A It was prepared by me.

MR. CROOKS: All right. The United States will offer Exhibit 42.

MR. LOWE: No objection, your Honor.

THE COURT: Exhibit 42 is received.

(Plaintiff's Exhibit No. 42, having been previously duly marked for identification, so offered in evidence, was received.)

Q (By Mr. Crooks) Would you now display this to the jury and very briefly describe the manner in which this was prepared {3060} and what it purports to show; and I would ask you at this time not to go into it specifically, but merely as a general explanation of the exhibit and what it is intended to illustrate?

A Yes, sir.

THE WITNESS: Would you like for me to, your Honor, approach the jury?

THE COURT: You may do it whichever way is most convenient for you.

A These are actually photographic enlargements, as I said, of the inked fingerprint appearing on the fingerprint card; and on your right, a photographic enlargement of a latent fingerprint lifted from the rearview mirror. These red lines and numbers are placed on the cards to indicate the points of identity in each print, the corresponding points.

I might add that there are other points of identity on both of these prints that correspond that I did not put on the card.

Q O.k., thank you.

Now, with regard to Exhibit 38-A, were there other prints that you found which were comparable in any way to any on the print card?

A Yes, sir, there were.

Q And I will first hand you Exhibit No. 46-B and ask if that's something you can identify?

A Yes, it is.

{3061}

Q And what is it?

A This is a photograph of a latent print that was developed on the gun owner's book.

Q All right. I hand you Exhibit No. 46-A which is already in evidence, and ask if this is in fact the gun owner's book that you are referring to?

A (Examining) Yes, sir, it is.

MR. CROOKS: The United States will offer Exhibit 46-B.

MR. LOWE: No objection, your Honor.

THE COURT: Is that "B" as in "Baker"?

MR. CROOKS: Yes, your Honor.

THE COURT: 46-B is received.

(Plaintiff's Exhibit No. 46-B, having been previously duly marked for identification, so offered in evidence, was received.)

Q (By Mr. Crooks) All right. I now again hand you Exhibit 46-A and 46-B, and would ask you where in the book, if you can locate it, was the fingerprint found which is illustrated in the photograph by 46-B?

A (Examining) Yes, sir. It was developed on this introduction page.

Q Is there a number on it?

A Roman numeral IX.

Q Roman numeral IX, all right.

Insofar as 46-B, did you then make a comparison between {3062} that and 38-A which is the Leonard Peltier fingerprint card?

A Yes, sir, I did.

Q And what, if any, were the results of your examination and comparison?

A I found that the latent print developed on this introduction page and shown in this photograph marked Exhibit 46-B and the inked fingerprint appearing in the right thumb block of this fingerprint card marked Exhibit 38-A and bearing the name, Leonard Peltier, were made by one and the same individual.

Q All right. I would ask you in your utilization of Exhibit 38-A, if you examined Exhibit 47-A?

A (Examining) Yes, sir, I did.

Q And were any prints found on 47-A?

A Yes, sir, there were.

Q Which were in any way comparable to the fingerprints of Leonard Peltier as demonstrated by Exhibit 38-A?

A Yes, sir, there were.

Q I now hand you Exhibit 47-B, and ask if that's something you have seen before?

A (Examining) Yes, sir.

Q And what is it?

A This is a photograph of a latent print developed on Page 159 of the exhibit marked 47-A.

MR. CROOKS: All right. The United States will offer Exhibit 47-B.

{3063}

MR. LOWE: No objection.

THE COURT: 47-B is received.

(Plaintiff's Exhibit No. 47-B, having been previously duly marked for identification, so offered in evidence, was received.)

Q (By Mr. Crooks) 47-B now having been received in evidence, did you make a comparison between 47-B which is the latent fingerprint developed on the Sierra Manual, and 38-A which are the known fingerprints of Leonard Peltier?

A Yes, sir, I did.

Q What were your findings, if any?

A I found that the latent fingerprint shown in this -- developed and shown in this photograph marked Exhibit 47-B, and the inked fingerprint appearing in the right thumb block of this fingerprint card marked Exhibit 38-A, and bearing the name, Leonard Peltier, were made by one and the same individual.

Q All right. I now hand you Exhibit No. 45-B, and ask if this is an exhibit which you examined as part of your fingerprint examination?

A Yes, sir, it is.

MR. CROOKS: And for identification, your Honor, I might state to the jury that this has been previously identified as the motor vehicle tax registration form, which by stipulation it has been agreed, has been found in the 1967 Ford Galaxy automobile at Tent City.

{3064}

Q (By Mr. Crooks) Now, insofar as that exhibit, did you make any comparison between it and 38-A, the known fingerprints of Leonard Peltier?

A Yes, I did.

Q And what findings, if any, did you make?

A Could I refer to several of my notes?

Q Surely.

A (Examining) Yes, sir.

Q All right. Would you state what your findings were with regard to Exhibit 45-B as compared with Exhibit 38-A?

A Three latent fingerprints were developed on the South Dakota Vehicle Registration Tax Form; and in comparison, two of the latent fingerprints appearing on this form, or developed on this form, and the inked fingerprint appearing on this fingerprint card in the right thumb block, Exhibit 38-A, and bearing the name, Leonard Peltier, were made by one and the same individual; and also one latent fingerprint also developed on Exhibit 45-B and the inked fingerprint appearing in the No. 6 block or left thumb block of this fingerprint card marked Government's Exhibit 38-A and bearing the name, Leonard Peltier, were made by one and the same individual.

Q All right. I now hand you Exhibit No. 45-C, and ask if this is something you have likewise seen during the course of your investigation?

A (Examining) Yes, sir, I have.

{3065}

Q All right, and did you develop any latent fingerprints on that document?

A Yes, sir, there was one latent fingerprint developed on Government's Exhibit 45-C.

Q And what was that, what print -- well, did you make a comparison between that print and Exhibit 38-A?

A Yes, sir, I did.

Q And what were the results of your examination?

A I found that the latent fingerprint developed on Government's Exhibit 45-C and the inked fingerprint in the No. 6 finger block or left thumb block of this fingerprint card marked Government's Exhibit 38-A and bearing the name, Leonard Peltier, were made by one and the same individual.

Q All right. I now hand you Exhibit No. 45-D, and ask if that is something you examined for fingerprints during the course of your examination?

A (Examining) Yes, sir.

Q And excuse me, were any latent fingerprints developed on that?

A Yes, sir. Two latent fingerprints were developed on this item marked Government's Exhibit 45-D.

Q And did you make a comparison between those latent fingerprints and the known prints of Leonard Peltier contained in 38-A?

A Yes, sir, I did.

Q And what were the results of your comparison?

{3066}

A I found that the two latent fingerprints developed on Government's Exhibit 45-D and the inked fingerprints appearing in the No. 9 fingerblock and No. fingerblock on this fingerprint card marked Exhibit 38-A and bearing the name, Leonard Peltier, were made by one and the same individual.

Q All right. I now hand you Exhibit No. 45-E, which prior testimony of Mr. Schumacher indicates were part of the Rice Motors' records as was 45-D, I might add -- I hand you Exhibit 45-E and ask if you examined that document?

A (Examining) Yes, sir, I did.

Q And were any latent fingerprints of value found on that exhibit?

A Yes, sir. There was one latent fingerprint of value developed on this item marked Government's Exhibit 45-E.

Q And did you make a comparison between that and the known fingerprints of Leonard Peltier as are shown on 38-A?

A Yes, sir, I did.

Q And what were the results of your comparison?

A The one latent fingerprint developed on this item marked Government's 45-E and the inked fingerprint appearing in the No. 10 finger block of this fingerprint card marked Government's Exhibit 38-A and bearing the name, Leonard Peltier, were made by one and the same individual.

MR. CROOKS: All right. Now, your Honor, at this time I would hand to the Clerk for filing a stipulation signed {3067} by Mr. Hultman, Mr. Taikeff, Mr. Lowe and Mr. Peltier.

THE COURT: Very well.

(Court examines document.)

MR. CROOKS: Your Honor, at this time I would ask leave of the Court to read that stipulation to the jury.

THE COURT: The stipulation may be read.

MR. CROOKS: The stipulation, omitting the formal parts, is as follows:

It is hereby stipulated and agreed by and between the parties as follows:

One. That Special Agent Jack Coler's Bureau car, a gold colored Chevrolet 400 Biscayne, bearing 1975 Colorado license plates, No. KE-1194, depicted in Government's Exhibit No. 57, was found on June 26, 1975, at the point indicated as Coler's car on Government Exhibit No. 71, by the following Special Agents of the Federal Bureau of Investigation:

A. Dean Howard Hughes.

B. Ben R. Patty, Jr.

C. Robert K. Taubert.

D. Gerard P. Waring.

E. David F. Price.

F. Donald G. Wiley.

G. J. Gary Adams.

And that if called as witnesses, each of the {3068} aforementioned Agents would testify that to their knowledge nothing was placed in the vehicle by themselves or otherwise which was not in the vehicle at the time it was found.

Two. If called as a witness, Special Agent Donald G. Wiley would testify that he assumed control of Special Agent Coler's car at the scene, and that he remained inside the 1972 Chevrolet Biscayne automobile and that no person came near said automobile until such time as he had closed and locked the doors and trunk of said automobile; and he remained with Special Agent Coler's automobile until Deputy Sheriff Michael Lynn Jenniges, a peace officer employed by the Fall River County, or Fall River Sheriff's office of the State of South Dakota, arrived, accompanied by a tow truck; and that he then delivered custody of said automobile to Deputy Sheriff Jenniges.

Three. That if called as a witness, Deputy Sheriff Michael Lynn Jenniges would testify that he came to the Jumping Bull area with a tow truck and assumed custody of the aforementioned 1972 Chevrolet Biscayne automobile from Special Agent Donald G. Wiley; he was standing beside the same with the doors and trunk closed.

He would further testify that he supervised the hookup of said 1972 Chevrolet Biscayne automobile to the tow truck, and that the same was towed under his control and supervision to the Fall County Jail, Hot Springs, {3069} Springs, South Dakota, where the said 1972 Biscayne automobile was placed in a locked garage owned by Fall River County.

He would further testify that no person had any contact with the interior of said vehicle from the time it was taken into his custody from Special Agent Donald G. Wiley and until the same was delivered and locked into the aforesaid Fall River County Garage.

He would further testify that after locking the doors of said garage, he applied seals to the exterior of the garage and that said vehicle remained locked in the garage until June 29th, 1975, when the seals were broken and the garage was opened for employees of the Federal Bureau of Investigation who he observed to conduct, or conduct a fingerprint examination of said vehicle.

Four. If called as a witness, William Fisher, 501 South Fifth Street, Hot Springs, South Dakota, would testify that he is a locksmith and that he was called upon to unlock the doors and trunk area of Special Agent Jack Coler's Bureau automobile on June 29th, 1975, to facilitate the fingerprint examination of the same by Winthrop Lodge, a fingerprint specialist of the Federal Bureau of Investigation.

{3070}

MR. CROOKS: Document having been signed by the various parties to this lawsuit.

Q (By Mr. Crooks) Now, Mr. Lodge, I would like to ask you a few additional questions concerning the exhibits which we have started talking about yesterday. First of all Exhibit 34-B which you had previously testified was found in the trunk of Coler's bureau automobile by yourself, insofar as your examination was concerned as you've heard from the stipulation do you recall a locksmith being called?

A Yes, sir.

Q And why was that?

A The vehicle was locked and we had no other way of conducting our examination on the interior of the car until we had the doors unlocked.

Q All right. And when the individual, the locksmith came and unlocked the doors was anybody else, did anybody else enter the vehicle prior to yourself?

A No, sir.

Q Now, when that exhibit was found do you recall whether it was in the first, middle or latter part of your examination? The time sequence in which that exhibit was found, 34-B?

A No, sir, I don't recall just whether it was in the beginning of our examination or at the end of the examination.

Q In any event when the exhibit was found what did you do with it?

{3071}

A Well, first of all it was tagged for identification purposes and was later examined for latent prints.

Q All right. Insofar as the examination that you made of that exhibit for latent prints, what results if any did you find or were made?

A There were no latent prints developed on the present, or developed on the cartridge.

Q Now, insofar as the latent print is concerned there are basically different classifications, a print of value and a print not of value; is this correct?

A Yes, sir.

Q And you said, as I understood your testimony, there were no prints of value found. Were there any prints that you could identify of fingerprints which were not of value?

A No, sir. I don't recall any prints at all on the --

Q No prints of any kind?

A Right.

Q All right. Insofar as that exhibit is concerned could you examine the bottom of the exhibit, if you can see through the plastic, and indicate what manufacturer that shell casing came from.

A I'm afraid I would have to take this out of this plastic to, rather difficult to see.

Q Perhaps take it out of the first plastic bag and then maybe you will --

{3072}

A .223, Rem.

Q Those would be the only markings found on the base of the shell casing other than the primer mark?

A Yes, sir.

Q All right. And do you know whether or not Rem stands for Remington Arms Company?

A I just assumed that it did.

Q All right.

MR. CROOKS: United States will re-offer Government's Exhibit No. 34.

MR. LOWE: 34-B?

MR. CROOKS: 34-B, I'm sorry.

MR. LOWE: No objection, Your Honor.

THE COURT: 34-B is received.

MR. LOWE: Subject to cross-examination.

Q (By Mr. Crooks) I would now hand you Exhibit No. 35-G; ask if that is an exhibit you've seen before?

MR. LOWE: Did you say "G"?

MR. CROOKS: G.

A 35-G.

Q (By Mr. Crooks) Right.

A Yes, sir. I did retrieve this.

Q And where have you seen, where did you first see that?

A In the interior of the, of Special Agent Coler's automobile during my examination.

{3073}

Q And from your examination of the shell casing found in the paper bag, or the cellophane bag, what does it appear to be?

A It appears to be a .38 Special cartridge case.

Q And that would be again in the interior of Special Agent Coler's car?

A Yes, sir.

Q So the record's clear.

A Yes, sir.

Q All right.

MR. CROOKS: United States will offer 38 -- or excuse me, 35-G.

MR. LOWE: No objection, Your Honor.

THE COURT: 35-G is received.

Q (By Mr. Crooks) All right. During the course of your examination of the vehicle, Mr. Coler's vehicle in particular, did you prepare contemporaneous notes of any sort?

A Yes, sir, I did.

Q And do you have those with you?

A Yes, sir.

Q Could I see them, please.

I hand you what has now been marked as Government Exhibit No. 180 and ask if you can identify those without going into the details of the contents, just to give a description of what they are?

{3074}

A Yes, sir. These notes were written by me indicating the date, time, place that Special Agent Coler's car was turned over to me.

Q And what is the date that is indicated on the notes?

A 6/29/75. Hot Springs, South Dakota, Sheriff's Department.

Q All right. And would you describe how those notes were made.

MR. LOWE: Your Honor, may we approach the sidebar a moment?

THE COURT: I beg your pardon.

MR. LOWE: May we approach the sidebar?

THE COURT: You may.

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

MR. LOWE: Your Honor, I'm not sure what counsel is doing. I thought I ought to start out before we get to a critical stage. These were papers not disclosed to us, never given as part of 3500 material. I don't know what the purpose of the intent of showing them is, but we would object to their introduction, at least until we've had a chance to examine them before the testimony is given about it.

MR. CROOKS: I'm sorry, I thought you examined those this morning, John.

MR. LOWE: No. The only thing I looked at this morning was fingerprint notes that he had. He had about four {3075} sheets of white paper that he showed me and they weren't really notes, they were extracts from his reports and other things.

MR. CROOKS: Well, go ahead. I'm sorry, I didn't mean to interrupt.

MR. LOWE: I have never seen these before. They were never disclosed as 3500 material, and at this point I would have to enter a general objection as to any reference to them. And of course I've never seen them, so I don't know what they contain.

MR. CROOKS: Well, Your Honor, just for the Court's edification, what these are are basically his notes that he made contemporaneous with the search. They were then reduced to the formal 302, but these would be the original notes as he went through the car item by item, then making notes of what he found and compared and so forth.

And very simply what I'm going to do is lay a foundation for these notes as being basically a recordation of the finding of the .223 cartridge which is, as counsel has many times indicated, the actual memory which is refreshed to introduce the exhibit showing it. But more importantly I think it goes for the obvious thing that counsel has on prior witnesses indicated a recent fabrication of the finding of the .223 cartridge. And it is simply to show that this contemporaneous with the event, the finding of this cartridge was noted.

{3076}

MR. LOWE: I'm sorry, I may have misunderstood what you said. You are intending to offer these as something to show --

MR. CROOKS: To corroborate.

MR. LOWE: -- his recollection at the time when it was fresh?

MR. CROOKS: Yes, absolutely.

MR. LOWE: And you feel that that is a basis that you feel you ought to be able to introduce those then?

MR. CROOKS: Not just that, but primarily to corroborate his testimony that this is not a fabrication. He found the cartridge because he noted it on his notes at the time they were found. And counsel has implied through various witnesses that this is all a fabrication.

I think he's even used the term to the Court that the cartridge was "salted", and I think we're entitled to show that this cartridge was not salted. It was found by Mr. Lodge. May be a contemporaneous note of it. And I'm not offering it yet, but that's --

MR. LOWE: You intend to offer it?

MR. CROOKS: Yes.

MR. LOWE: If you are intending to offer it, to save time from coming up to the sidebar, make an offer and let the Judge rule on it.

Obviously you are moving in that direction.

{3077}

MR. CROOKS: I think I'm entitled to lay the foundation.

MR. LOWE: I understand. I'll let you do that, but in terms of raising the question with the Court can we just take it up now. It's obvious that you've got a question or two and you're going to offer it. Can you make a representation and an offer of proof and let the Judge rule? That's all, just state what he's going to say. I don't mind.

MR. CROOKS: Pardon?

MR. LOWE: State what he's going to say and we can get a ruling on it.

MR. CROOKS: He's simply going to say that there's a note of the .223 cartridge found in the, at the time or contemporaneous note. And that's all that I'm offering it for. If counsel wishes, I'll take out everything except the note pertaining to that. That's the purpose of it, and that's what he'll say.

THE COURT: What is the position of the defense.

MR. LOWE: Well, I think, you know, we oppose it. Well, I'm not even sure if I oppose it. If you are offering it in evidence, if Your Honor is going to accept it in evidence, I'd like to see it before I cross-examine.

THE COURT: Well, I'm not going to rule until I get your position on the record.

MR. CROOKS: Surely I'll show it to counsel.

MR. LOWE: We would -- may I talk to Mr. Taikeff for {3078} a moment, Your Honor?

THE COURT: You may.

MR. LOWE: As I say we're surprised a little bit on this. That's why I'm just not sure what -- and I wonder if it's possible that we could just take a look at them for a moment here just at the sidebar.

THE COURT: Sure, yes.

MR. CROOKS: Your Honor, or John, if I can point out the one paragraph which we're, if I can find it, I think I am correct. This is the page that it's on.

MR. LOWE: 30.

MR. CROOKS: Item 30, item 30 is on the last page, is the only item which the United States --

MR. LOWE: Let me just look at this a minute if we can because I've never seen it before.

We have no objection to the introduction of that, Your Honor, and what we'd like, though, is a chance, perhaps at the break if we could, look that over. It's, I don't want to take the time right now at sidebar, but we would have no objection to introducing it as long as we can see it before cross-examination.

MR. CROOKS: Oh, sure. I'll be done with it in a few minutes.

MR. LOWE: All right. Fine. We have no objection.

THE COURT: Very well.

{3079}

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

THE CLERK: Are you offering it?

MR. CROOKS: No, I'm not.

Your Honor, if I could continue with my foundation.

THE COURT: You may.

Q (By Mr. Crooks) I now hand you Exhibit No. 180. You testified that you had made some contemporaneous notes and I've handed you Exhibit 180. Would you describe again what they are.

A Yes, sir. These are notes in my own handwriting. We didn't have a steno to dictate to, so I took these rough notes of the evidence that I recovered from the automobile.

Also indicates the place, the date and the time and the names of the individuals who turned the vehicle over to me in the Sheriff's Department in Hot Springs, South Dakota.

{3080}

Q Insofar as those notes, I hand you Exhibit No. 34B and ask whether or not there is any mention of that in any part of your notes? Do not read the mention but consult the notes, find out if there is anything in there concerning that.

A Yes, sir, it is.

Q All right.

And would you indicate just the page in which there is a notation concerning 34B.

A Yes, sir. It's listed as No. 50 on this very last page.

Q And that is a partial page and I believe there is a piece of white attachment to it, is that correct?

A Yes, sir.

Q. Now insofar as the notes that you took as you were taking items or removing items from the vehicle, were the notes prepared -- well, when in reference to the removal of items were the notes prepared?

A These notes were kept by me as the different items were collected from the automobile.

Q So as an item was found you made a note of it and put it on your papers?

A Yes.

Q Or your original notes?

A Yes, sir. And under area of the vehicle, the heading, that is, the area of the vehicle where the items were collected.

Q Okay.

{3081}

A In this particular case I had listed as "evidence collected from trunk of Chevy Biscayne 400," and the date.

Q Now insofar as your notes which are contained in Exhibit 180, were those notes reduced to another form at a later time?

A Yes, sir. They were dictated and put, I think they're referred to as the 302.

Q And would the 302 be substantially a dictation from the notes themselves?

A Yes, sir.

Q From reviewing Exhibit No. 180 and reviewing the items contained on Exhibit 180, do those in fact refresh your memory as to all or most or some of the items found in Coler's car?

A Yes, sir.

MR. CROOKS: We have no further questions of this witness, Your Honor.

MR. LOWE: Your Honor, I understood Counsel was introducing this and at the side bar the Court introduced it and am I to understand that's an exhibit or not an exhibit?

THE COURT: It has not been offered.

MR. CROOKS: Your Honor, Counsel was premature. He came to the bench before I offered it and I do not intend to offer it. It may be offered at some later time but not right now.

MR. LOWE: Mr. Crooks stated at the bench he was intending to offer it.

{3082}

MR. HULTMAN: Let's approach the bench.

THE COURT: You may.

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

MR. LOWE: Mr. Crooks clearly said he was going to offer it and we acquiesced in that we studied it and said we would get copies of it. What's happening here? We're now changing what was said?

MR. CROOKS: Your Honor, Counsel was the one that brought this thing up prematurely. He asked me if I intended to offer it; I do not recall whether I did or not. Even if I did I don't know if I'm prevented from changing my mind. I have done what I wanted to do with the exhibit and what I started out to do with the exhibit, is to show this man has got his recollection refreshed from a contemporaneous document. If Counsel wishes to offer it, I don't see any problem. I just don't intend to offer it myself. I may later.

MR. LOWE: Did Your Honor remember Mr. Crooks saying he intended to offer it? That's my clear recollection. I'm sure it's on the record that --

MR. CROOKS: What's that got to do with it?

THE COURT: It is my impression, although I cannot repeat exactly what was said, it is my impression that Counsel indicated that he did intend to offer it. I remember asking you what your position on it was.

{3083}

MR. LOWE: I would have objected to some of the questions that were asked if I had not been basing my reliance on it.

MR. HULTMAN: John, you can offer it yourself. There's no problem. His recollection was refreshed and that was the last question, or our basis of offering it is gone.

MR. LOWE: The basis is gone. He said it did refresh his recollection.

MR. CROOKS: That's correct. That's right.

MR. LOWE: Why does that mean the basis is gone? That's an additional basis for --

MR. CROOKS: I don't know what the argument is. If Counsel wants it in he can offer it.

MR. LOWE: I think Your Honor understands. I acquiesced on a series of questions on good faith because Counsel said he was going to introduce it. The Court interpreted it was going to be introduced by Government Counsel.

MR. CROOKS: I don't follow this, Your Honor. I laid down foundation for that. That's what I was attempting to do all along. Counsel got up and objected before I offered it. I don't know how I can be forced to offer something that I've decided that I don't want to offer, particularly at this time. I didn't read any of the contents of this into the record. I simply asked him to refer to it and laid foundation {3084} for it. I may offer it at some later time.

MR. LOWE: Judge, I think we had valid objections to any reference in that document whatsoever on the ground I stated we had not been provided copies. There had not been any disclosure on --

THE COURT: Excuse me. I just reviewed 3500 and as I read 3500 you're entitled to it after the witnesses have testified.

MR. HULTMAN: That's correct.

MR. LOWE: Except I understood in this trial that there was an order that we be given this before a witness testified.

THE COURT: There's no order. There is something that's worked out between Counsel.

MR. LOWE: My mistake then. I thought there was an order on it.

THE COURT: I never entered an order to that effect.

MR. LOWE: I misunderstood. Last year.

THE COURT: It doesn't require it. That's why I checked the statute a moment ago.

MR. CROOKS: Counsel is correct. There is an understanding. However, these documents were documents which are not basically 3500 documents to start with. They're rough notes. He's got the same, exact same thing in the 302s. I had no intention of going into this until Counsel has raised {3085} the implication that we were concealing evidence and that's why we decided to make reference to these. If Counsel wants to look at them, if he wants to introduce them, it doesn't make any difference to me. From my standpoint I just, I haven't offered them. I'm not sure of the objection that the government hasn't offered something is one I haven't heard before.

MR. LOWE: I'll be more cautious in the future.

THE COURT: Very well.

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

MR. LOWE: Do you have a plan when you wanted to break? We have to have a copy of this to look at before cross-examination.

THE COURT: Have you finished with the witness?

MR. CROOKS: I have, Your Honor.

THE COURT: Are we requesting that we recess at this time?

MR. LOWE: It would be very convenient. Perhaps we can work out with government Counsel to --

MR. HULTMAN: Could we approach the bench for one more moment?

THE COURT: You may.

(Whereupon, the following proceedings at the bench:)

MR. HULTMAN: Your Honor, I was not a participant in {3086} the last conversation but I was a listener and I want to reflect on the record that last night Mr. Lowe came to me at the conclusion of proceedings and asked if he could see the notes. That was the word, "notes," of this particular witness. I indicated to him that I would try to locate the witness and make him available and whatever notes he had. I did do that. I indicated to him that he would be available this morning before trial; that I did too. The witness was available. I just wanted this to be made a part of the record. I don't know what he had reference to but he asked me specifically about notes.

MR. CROOKS: I might add to that, Mr. Hultman, I instructed the witness to make available any notes of any kind that Counsel wanted to see. I have no way of knowing what notes he looked at or what he didn't.

MR. LOWE: To make the record clear, Your Honor, I did meet with Mr. Lodge this morning and I said, "I'm supposed to look at your notes," and he pulled out, I would estimate it was four pages of white 8 x 11 paper which had ink pen or ballpoint pen notes on them and said, "here they are." We went over them. I never saw these yellow pages; he never pulled them out. He never mentioned he had them. I said, "I'm supposed to see your notes," and the white papers are the ones he showed me. This is the first I knew these existed is when he pulled them out on the witness stand.

{3087}

MR. HULTMAN: I didn't know. I just wanted to indicate on the record what our conversation was and the availability of the witness.