VOLUME XVI

Pages 3242-3457

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WEDNESDAY MORNING SESSION

April 6, 1977

Whereupon, the following proceedings were had and entered of record on Wednesday morning, April 6, 1977 at 9:00 O'Clock, A.M., without the jury being present and the defendant being present in person:

THE COURT: Are counsel ready to proceed?

MR. CROOKS: Your Honor, there is one matter which I should report the Court on. This is the request by defense counsel that we check again on Mr. Hancock's 302 forms. We have done so, we've checked personally with Mr. Hancock as well as the people in Oregon to make sure that we've turned over all of the 302's. And we find that we have turned over every 302 that Mr. Hancock has made concerning his activities.

Obviously there are some 302's of witnesses, witness interviews, which have not been turned over, but which are not 3500 material. But every 302 that he has made out where he's observed anything himself has been turned over. And some of his interviews of course have also been turned over to Mr. Hanson and Mr. Zeller.

So to that extent even those have been turned over in their 3500 material. But there's nothing else that either the FBI or this office can find.

THE COURT: Is there anything more to be presented before the jury comes in?

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MR. TAIKEFF: No, Your Honor.

THE COURT: Jury may be brought in.

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

THE COURT: You may proceed.

MR. SIKMA: At this time, Your Honor, with regard to Government Exhibit 34-AA, I would like to read a stipulation. Paragraph 16 of the stipulation with regard to Government Exhibit 34-AA. "Government Exhibit 34-AA look alike gun for Government Exhibit 34-A, AR-15 .223 caliber semiautomatic rifle. It is hereby stipulated and agreed between the parties that Government Exhibit 34-AA is a replica of Government Exhibit, Government's Exhibit 34-A; that Government's Exhibit 34-AA may be introduced into evidence to establish the appearance of Government's Exhibit 34-A prior to its being damaged. Further foundation is waived."

Q (By Mr. Sikma) Mr. Hodge, yesterday I believe we were going over the chart which is behind you, Government's Exhibit 34-1, and with regard to Government's Exhibit 34-H we had just finished talking about 34-G I believe, which were from Williams' car, bullet fragments. Now, with regard to Government Exhibit 34-H we had started to talk about that. What kind of an examination did you make with regard to Government Exhibit 34-H?

A I examined Government's Exhibit 34-H to determine its caliber, to determine the type of rifling in the barrel from which it was {3244} fired and to determine if it had any microscopic marks on its surface from the weapon which fired it. So that I could possibly associate it with, or identify it with a particular firearm.

Q I will show you what is offered into evidence of Government Exhibit 34-H. What were your findings with regard to Government Exhibit 34-H which on the chart is marked as from ground beneath bodies of Williams and Coler?

A I found Government's Exhibit 34-H to be a .22 caliber copper jacket, copper bullet jacket. That it had been fired from a barrel which contained six grooves twisting to the right, and that it did not have any microscopic marks remaining on its surface which would permit me to identify it with an individual firearm.

Q Could that particular bullet fragment, 34-H, have been fired from Government Exhibit 41-A which is also a .22 caliber rifle?

A No, sir. It could not have been.

Q And why not?

A Well, first of all the ammunition designed to be fired in Government's Exhibit 41-A is .22 Rim Fire ammunition and it uses a different type of bullet.

Secondly, the number of grooves in the barrel of Government's Exhibit 41-A is eight and this bullet was fired from a barrel which contained six grooves.

Q Could it have been fired from any .30 caliber weapon?

A No, sir.

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Q It would have to be something of the nature of a .22 caliber and center fire; is that correct?

A That's correct, sir.

Q Of those items you've seen on that rack over there; is that correct?

A Yes, sir.

Q Okay. Of those items, those firearms on the rack, which firearms could it have been fired from?

A From Government's Exhibit 34-A.

Q Then also if there, if this gun had been there, and I think we've agreed it's a look alike and not related to this offense in any way, it could have been fired from this gun as well; is that correct?

A That's correct, sir.

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Q Would you point up on Government's Exhibit 34 the microscopic comparisons that you have there by way of photograph and explain to the jury what they are.

A The two photographs on either side of the chart are photographs which I took through the comparison microscope. They are large microscope photographs.

There is a line running down the middle of the photograph which is difficult to see. Nevertheless, it is there. This impression indicated by the pointer on the left side which is the cartridge case, extractor mark on the cartridge case which I fired in the laboratory (indicating).

Q The configuration of that impression is identical to the configuration of the impression in the rim of Q 353 which is within the group 34C and that is the extractor marking on the rim of that case.

It is my conclusion based upon the microscopic matching and these impressions that Q 353 was loaded into and tracked from the K-40 rifle on 34.

In like manner the same marking appears on Government's Exhibit 34B which was my specimen, Q 2628, and this is an enlargement of the marks representative as I viewed them in the comparison microscope in the laboratory. On one side, the left side is Exhibit 34B and the other side is my test fire cartridge case.

Q Now those are extractor marks, is that correct?

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A That's correct, sir.

Q Does that positively identify Government Exhibit 43 as having connection, definite connection with Government Exhibit 34A?

A It positively identifies Government's Exhibit 34B as having been loaded into and extracted from Government Exhibit 34A.

Q Now I believe you indicated earlier that you could not make firing pin comparisons because of the damaged nature of Government Exhibit 34, Government Exhibit 34A, is that correct?

A That's correct.

I formed my conclusion as to whether or not the fire pin impression and the breech face marks can be cartridge casings represented by 34C series of exhibits identical with the 34A firing pin and 34A bolt face because of a lack of marks on the bolt face and the condition in which I received it.

Q Now any one of three ways, tell me whether or not it's correct that you can make a positive connection with an exhibit such as 34A in any one of three ways? One would be bullet extractor marks, the other would be breech face marks and the other would be firing pin impressions, is that a correct statement?

A Well, if I may rephrase that, the positive identifications for determining whether a cartridge case has been fired in a gun generally consists of the marks put on the cartridge case {3248} by the fire pin of the weapon or the marks left on the cartridge case as it recoils against the breech of the weapon and from those markings the firearms examiner can conclude that a cartridge case has been fired in a weapon to the exclusion of all others. The other markings left on the cartridge case by various mechanism parts, one of which is the extractor, can allow the firearms examiner to determine if that cartridge case has ever been in the mechanism. It does not necessarily mean that the cartridge case has been fired in that gun because the markings can be placed on the cartridge case without actually firing that cartridge case. In other words, put the shell in and then throw it out of the gun without pulling the trigger will often leave this type of mark on the cartridge case.

Q Now the types of marks in 34C which consist of 35 cartridge casings, expended cartridge casings, 34D which is one, 34B which is another, 34E which is another and 34F which is another all had the same type of markings, is that correct?

A Yes, sir. That's correct.

Q They were all extractor marks from Government Exhibit 34A?

A Yes, they were.

Q Did you examine 34B to determine what kind of a, where that cartridge casing was made? In other words, the manufacturer of 34B?

A Yes, sir, I did.

{3249}

Q Now is there some place on a cartridge casing which would tell you where a particular cartridge casing comes from as far as the manufacturer is concerned?

A Yes. The manufacturer's name is stamped right into the head of the cartridge case.

Q I will show you Government Exhibit 34B and 34C. Could you show the jury, illustrate to the jury, if you would, where this marking is made.

Q The initials of the manufacturer or an abbreviation of the manufacture's name in almost every cartridge case commercially manufactured in the United States is stamped right in the head of the cartridge case itself surrounding the primer. In this particular case, cartridge case from group 34C, the initials R with a dash and then a P standing for Remington-Peters is stamped up above, then the caliber designation, .223 Remington is stamped down below.

Q and with regard to Government Exhibit 34B, where was that manufactured?

A Government's Exhibit 34B has the same initials as the one I just mentioned. It has an R with a dash and a P and then .223 Remington stamped underneath that. The R dash P stands for Remington-Peters.

Q With regard to Government Exhibit 34C, do you recall the manufacturer, or, Government Exhibit 34D, do you recall the manufacturer of that Government Exhibit 34D?

{3250}

A Government Exhibit 34D has the stamp indicating it was manufactured by Winchester Western.

Q And I have a question with regard to, are you familiar with the AR15 or used in the form of a military M16 as far as the FBI is concerned?

A Yes, sir.

Q Now are you familiar with how the FBI or where the FBI purchases its ammunition for the AR15 or the M16 as it's militarily designated?

{3251}

A The majority of it is military ammunition.

Q And from what company do they purchase ammunition for the M-16?

A I don't know if we get it from the -- it is manufactured militarily by different organizations. The major ammunition companies make it, Winchester and Remington, and also arsenals like Lake City, arsenals manufacture it.

Q What kind of a stamp does Lake City have?

A It has a LC and the year of its manufacture underneath.

Q Does it have the -- how does it have a caliber designation, do you know?

A It does not have a caliber designation.

Q The FBI in purchasing ammunition, or for an AR-15, would purchase ammunition from Lake City and those would have a LC designation?

MR. LOWE: Objection to the form of the question, your Honor. It is quite leading.

THE COURT: Sustained.

(Counsel confer.)

Q (By Mr. Sikma) Would ammunition purchased from Lake City have a designation?

A Yes, sir.

Q And that designation would be what?

A LC.

Q Are you familiar with the -- how rounds are ejected from {3252} an AR-15 or a M-16?

A Yes, sir.

Q Now, would you designate or tell the jury what the difference is between an AR-15 and a M-16, if you know?

A Both the AR-15 and the M-16 is manufactured by Colts Firearms Company in Connecticut. The essential difference is that the M-16 is a military rifle, and it has a full, fully automatic capability of fire through a selector switch on the receiver. There is also a rod on the side of the weapon which allows the bolt to be driven home should the gun become dirty, and that is the essential difference.

In appearance they are almost exactly like with the exception of that rod on the side of the receiver.

Q Where would that be on this Government Exhibit 34-AA?

A It would be right on the right side of the weapon coming out back to here (indicating). The selector switch is identical to this except that it has one more position on it, and that's fully automatic.

Q To your knowledge, or do you have an opinion as to whether or not the automatic rifle designator switch has any effect on the -- on whether or not or how the expended cartridge casings are expelled from the firearm?

A The fully automatic switch adjusts the sear only. It does not interfere with the spring mechanism or the recoil operation of the weapon.

{3253}

Since the parts are interchangeable in the bolt, it would not in my opinion affect the way that the cartridge cases were ejected from the weapon when the weapon is fired in the semi-automatic method of firing.

Q Did you conduct any test to determine general ejection patterns of various random AR-15's?

A Yes, I did.

Q Or M-16's?

A Yes, sir, I did.

Q Would you tell the jury what you did in this regards, what kind of tests you ran?

A I selected five weapons of this type, two were AR-15's, the civilian model, and three M-16's which are the military weapon.

I took them to our training facilities at Quantico, Virginia and fired 20 rounds from each weapon in -- 10 from the shoulder area and 10 from the hip. I used both military and commercial ammunition, and I charted where the cartridge cases were thrown from the gun.

Q What kind of an arc, you know, do the cartridge casings usually take as they leave the firearm?

A In the case of the five weapons that I observed, the cartridge cases, as the weapon was held vertical to the ground, the cartridge cases were thrown practically horizontally out of the gun, flat out. They may have rised an inch or two in some {3254} instances, but that was about all.

Q Did you make any chart of your findings with regard to the ejection patterns for an AR-15 or M-16?

A Yes, I did.

Q I will show you what is marked as Government Exhibit 34-I, and ask you whether or not you recognize it?

A Yes. These are the charts which I made from the shooting of these five weapons, from both the hip and the shoulder position.

Q Now, did you take anything into consideration when you were making those charts as a result of those tests, or what was your purpose of making the tests in the first place?

A I was asked the question, how far and in what direction would a weapon of this type eject a cartridge case, and the purpose for making the chart and running the test was to answer that question.

Q Now, in this regard did you take measurements of a 1972 Chevy Biscayne, of the trunk area, and measurements from the ground?

A Yes, I did.

Q O.k., and what did you find in that regard, what did you do in that regard?

A I found a 1972 Chevrolet Biscayne, and I measured the lip of the trunk, the distance that it was off the ground, the floor.

{3255}

Q And when you made these ejection patterns, would you describe to the jury what you did?

A Well, myself and another agent went down to Quantico, and we took with us 200 rounds of ammunition and five weapons selected from the reference collection of guns in the laboratory.

The other agent fired the weapons, and I charted the location of where the cartridge cases fell; and then I made a notation of where each cartridge case fell and then plotted those on this graph so that I would have a pictorial representation of the general area that these five guns would eject the cartridge cases.

{3256}

Q Did you make a determination whether or not at various distances any or all of the cartridge casings fired as you had them fired from a gun would have cleared the trunk of the 1962 Biscayne?

A The distance would vary considerably because the pattern fell over a very large area. The furthest cartridge case, furthest that any of the cartridges that I fired was thrown was approximately fourteen feet.

And considering the arc that these cartridge cases fell in when the weapon was fired from the horizontal position, I'm sorry, from a vertical position, the cartridge cases travel in the horizontal, that would be approximately thirteen feet away from the weapon that the, that the maximum distance from the test that I conducted.

Q And what was the minimum distance of any of those?

A I didn't attempt to determine a minimum distance. Some of the cartridge cases fell fairly close to the weapon within a foot, two foot, in that area. So that it could have been fairly close.

Q But it varied from a foot to fourteen, thirteen feet as far as clearing the --

A I think the distance is a little further than a foot. Maybe three feet was the closest from the hip position, and approximately three feet from the shoulder position, too, was the closest.

Q And what about the distance that these would have cleared {3257} the trunk? In other words, gone into the trunk?

A On the closer shots?

Q Yes.

A Well, the cartridge case would be falling somewhat steeply at that, so it would be in that area, fairly close.

Q And what about the furthest distance that it would clear the trunk?

A The cartridge cases that I observed went out horizontally and dropped off slowly. And as they lost energy, dropped off quickly so that the arc was in that respect. The 33 inch distance, which is the lowest part of the trunk of a Chevrolet Biscayne that I measured, would need cut off maybe a foot of the trajectory of the cartridge casing so that from what I observed 13 feet would be in the order, the maximum distance for the guns that I observed.

Q Okay. Now, would you take the, take the Government exhibit and explain to the jury how you coded the various, the charts.

A Should I step down?

MR. SIKMA: Your Honor, at this time I would offer into evidence Government Exhibit 34-I.

MR. LOWE: SubJect to the record, Your Honor.

THE COURT: 34-I is received.

MR. SIKMA: Your Honor, could the witness step down?

THE COURT: Witness may step down.

A In conducting this test I color coded the five weapons that {3258} I used as to the areas where the cartridge cases fell. The blue and the black colors are the A-15's. And you notice that the first AR-15 which I tested, the blue shaded area, that is the area that that cartridge, that weapon threw the cartridges, cartridge cases that I fired.

The number 2 weapon threw them in almost exactly the opposite direction. The blue gun is kind of up and to the right, whereas the second weapon is way back behind the shooter to the right.

The three M-16 weapons, the green, yellow and red tended more, well, the green and the red tended more to throw the cartridge cases directly to the side of the shooter, to the right. Whereas the yellow gun, the middle M-16 threw it again, well, to the rear of the shooter. But those are the areas that I observed and that is from the shoulder position.

The red dots indicate military ammunition which is a full metal jacket bullet, not a soft point hunting load. The blue dots represent commercial ammunition which has a soft point bullet designed for shooting game.

From the hip position the pattern is very similar in general appearance, only just a little bit closer in. We have the edge of our circle going out a little bit beyond nine feet, here we're going out ten feet on the shoulder position. The added height, letting the cartridge cases go a little further before they hit the ground.

{3259}

Q (By Mr. Sikma) I show you with Government Exhibit 34-AA, would you, tell me what, how the gun was held when pointed in that direction. Show the jury how the AR-15's were held when you were conducting this test, and in what two positions.

A On the first part, the shoulder position, the shooter held the weapon in this manner (indicating), right at the shoulder. And in the second test he held it down here (indicating), at the hip.

Q Now, I want to ask you some other question. If the firearm were pointed in a manner down toward the ground would this make some difference in the pattern that would be displayed?

A Well, the height of the ejection port off the ground does affect the distance as we have seen from the hip and the shoulder position. The higher the ejection port is off the ground the further the cartridge cases will travel.

The angle at which the ejection port is held may tend to change the pattern. Now, I did fire a few rounds with the weapon turned sideways.

Q This way (indicating)?

A With the ejection port straight up in the air. And at that time the cartridge cases went about a foot up in the air and then fell back down. So that the angle that the weapon is held at can affect the pattern. And if it is held at an extreme angle, such as straight up in the air, it will tend to shrink the patterns, more of the energy will be dispersed in the cartridge {3260} case going up in the air rather than traveling out.

Of course if it's held straight down, then the cartridge case will be thrown down into the ground quicker.

Q In all cases is, tell me whether or not it's true in all cases the cartridge casings were expended somewhat to the right and either to the front or to the rear somewhere in an arc of about sixty degrees; is that correct?

A The actual arc from the gun, is you take your extreme cartridge cases thrown to the right and forward, and your extreme cartridge cases thrown to the right and backward, that arc is approximately 120 degrees.

It's a rather sweeping arc, but in all cases they went to the right and either straight out or in some direction forward or behind for the five guns.

Q With regard to Government Exhibit 34-H, what kind of jacket was on that round?

A Well, 34-H is a copper bullet jacket. The lead metal core is missing. It's a copper jacket.

Q Is that a hard or soft jacket?

A It is a relatively thin, relatively hard jacket.

MR. SIKMA: I have nothing further at this time.

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

THE COURT: You may.

(Defense counsel conferred.)

{3261}

CROSS-EXAMINATION

BY MR. LOWE

Q Mr. Hodge, my name is John Lowe. We've met before, haven't we?

A Yes, sir.

Q And we have talked about some of the matters that you've testified here today, have we not?

A Yes, we have.

Q In conjunction with your examination of various items in this case did you prepare any 302's, or do you utilize laboratory reports almost exclusively for making reports?

A All of my findings are in laboratory reports.

Q So that there are no 302's which you prepared as such?

A No, sir.

Q In the process of making your examinations as you go along I gather that the procedure is to first receive the item in some way, either personally delivered to you or in the mail or some other form, and when you receive the item I gather that at least in this case there was some kind of note either attached to or inserted in a plastic envelope with the item; is that correct?

A That is correct, for a lot of the items. All of the items did not have a note, but they were contained in such a manner that marked with a number or something so that I could correlate where the item came from with the incoming communication.

Q All right. Would the incoming communication accompany the item?

{3262}

A yes, sir. Would accompany the package.

Q Right. So in other words if you opened up a box you might find like an invoice or an inventory sheet on the top which would give numbers which you could identify to the items that are in the box?

A Yes, sir.

Q And as to some items they may have a piece of paper in an envelope with them; is that correct?

A Yes, sir.

Q And other items might even be marked directly on them, depending upon what type of information or what type of item?

A Yes, sir.

Q When you receive them I gather that one of the first things you do is to assign a number to them, a Q number which identifies it for your purposes in making tests and in making an inventory; is that correct?

A That is correct.

Q And is at least this information in a given investigation, in this case the Resmurs investigation, in theory there would only be one item which is numbered Q254, for example? Is that the hope and theory of it?

A For a given case we have, you could have the same Q number assigned to two different items and two different cases if you follow me.

In other words, if I make an inner comparison between {3263} one case and another case I could be comparing the same Q numbers. But what you say is essentially correct. We try and keep the Q numbers on individual items within an individual case.

Q And to the best of your knowledge and belief in this case, that is the Resmurs investigations and all of the items in evidence, that was followed in the sense that there are no duplicate Q numbers; is that correct?

A Well, I believe there are duplicate Q numbers in the weapons because some of them were compared from different cases.

Q Are you saying weapons or are you talking about K numbers for weapons?

A K numbers.

Q I was asking Q numbers.

A Okay.

Q Is that correct as to Q numbers as far as you know?

A As f ar as I know.

Q mere are some K numbers which would have to be identified to specific laboratory reports because there might be more than one K-1 weapon for example; isn't that true?

A Yes, that's true.

Q But by looking at the particular laboratory report you would find whether K-1 was an AR-15 or a .303 or whatever it might be because it's identified within the report, is it not?

A Yes, sir.

{3264}

Q And when you have other reports identifying a test made or a comparison made between a cartridge and a weapon, if there is a reference to K-1 it certainly should and most normally does refer to K-1 as shown in a particular laboratory report; isn't that correct?

A Yes, sir. If it's different from the one that you are reading at the time.

Q Yes.

A Yes.

Q And after you put your Q number on the item in some way by scratching or writing in ink or some other method you have, and I gather you initial it then if you can; is that correct?

A Yes, sir.

Q So that in the future if you want to look at a cartridge case, let's say, and see if you had ever examined it you hopefully would find a Q number either scratched or written on it and your initials E.H. for Evan Hodge, am I correct?

A You are correct.

Q There after having marked the items you submit it to a series of examinations, perhaps tests, and these may vary from cartridge to cartridge, gun to gun, item to item, depending upon what information is sought or what information is suspected might be available, would that also be fair to say?

A Within certain limits, with weapons there are very few tests that we actually conduct. We generally just make a comparison.

{3265}

Other items of evidence may go to other examiners for additional tests.

Q All right. After you, or during the time that you are making the examination, as you find either information of significance or if you find negative results do you make notations as you go along for purposes of later putting them in a laboratory report?

A Yes.

Q And do you use a structured method of doing this, that is, do you have some sort of laboratory worksheets that you use, or do you simply make them on a yellow pad or something and then assemble them in a file later?

A We have what we call laboratory worksheets and that contains a listing, an inventory of all of the items that we have received in that particular case, and it is from that laboratory worksheet that we compile our final laboratory report in any given case.

Q All right. And I trust that you, to the best of your human possibility, accurately write down the results of your examination on the worksheet and then accurately reflect in your notes the information which you extract from the worksheets at the time you write the report?

A I write it on notes which are attached to the worksheet, yes.

Q Yes. And to the best of your ability the information you write down is an accurate reflection of what you find, and the {3266} ultimate report contains an accurate reflection of what your notes show?

A Yes, sir.

Q Then you submit that report that you prepared to the requesting agency, or the requesting person I presume and perhaps some other distributions to files and various places, would that be correct?

A That's correct.

Q Do you maintain a copy of those laboratory reports in your own files?

A I did in this particular case.

Q All right. Prior to coming here to testify today what have you in the last, let's say, the last two weeks reviewed your laboratory reports in order to prepare for testifying here today?

A Yes, sir.

Q Now, can you give me just a ball park estimate of how many pages of laboratory report you personally authored in this case to give the jury some idea of the amount of paperwork and examinations that we're talking about?

A No, sir. I really can't. I have before me a copy of all the laboratory reports which were issued in this matter.

As to these, these are all the findings from various examiners are included within. As to how much of this is actually my work I really have no idea.

Q All right. Are then you reporting and testifying today in {3267} some instances as to examinations that were made by persons other than yourself?

A No, sir, I don't believe I have.

Q Well, all right. I'm asking you, but you've got those reports, whether they're your reports or ones that somebody else made examinations on, you have in front of you?

A Yes. This includes all of the laboratory reports that were issued in this matter.

Q Okay. What I'm asking is that to try and connect up some people here. What relationship if any do you have with Special Agent Cunningham?

A Special Agent Cunningham is my immediate supervisor.

Q Now, in reviewing your laboratory reports you've reviewed, would it be fair to say that you've reviewed over a hundred pages of laboratory reports regardless of who may have prepared them?

A I, in reviewing, I only reviewed the work which I did.

Q Well, would you say that may be 20 or 30 pages of work that you did at various times?

A Oh, yes, that would be very conservative.

Q I'm just trying to get some sense for the jury as to how many pages.

And in these pages the information, the lists of items by Q numbers or K numbers, the various reports of comparisons and everything are basically typed single spaced on 8-1/2 by 11 {3268} pages, are they not?

A Yes, sir.

{3269}

Q Would it be reasonable for me to assume that you do many other comparisons and examinations other than just in this case?

A Yes, sir.

Q Would it be reasonable for me also to assume that there is no way humanly possible to keep all that information in your head and that's one of the reasons you put it down at the time you find it?

A That's correct.

Q Would it also be true that this is not a case of your looking at a laboratory report to refresh your recollection but really that your recollection was put down on paper at that time and you must rely on the report as to looking at most of that information to tell what you did and what you found?

A In some of the instances that's true and other instances I would remember.

Q But in the main, with all the hundreds of cartridge casings and items you examined, except for some items that maybe stick out in your memory, in general you would have no particular recollection even if you read the report, would you?

A I think that's probably fair statement, at least for half the time.

Q That's certainly not saying anything more than you're a human being and you have got some limitations as everybody does on what you remember?

{3270}

A Some of the things I remember and some things I don't.

Q Did you review your working papers prior to testifying, coming here to testify today, let's say within the last month?

A Yes, sir.

Q Do you have those with you also?

A Yes, I do.

Q When was the last time you looked at them?

A Well, I may have looked at them yesterday, as early as yesterday.

Q And the last time you looked at your laboratory reports?

A Would be this morning.

Q Now we've talked a lot about a number of different kinds of ammunition components, many of which you examined. I think you only examined their cartridge casings, some of them actually had live rounds, full cartridges either in boxes or loose. Was there any kind of ammunition components, including the .223 ammunition components, you examined which were not available commercially and were not legal to possess?

MR. SIKMA: Your Honor, I would object to that question. It's too broad, calls for a legal conclusion on the part of this witness which he would not be entitled to make. There may be hundreds of reasons why something might not be legal to possess and I think that the question is too indefinite.

THE COURT: Well, the witness hasn't testified as to {3271} whether or not he knows.

MR. LOWE: I'll rephrase the question, Your Honor. That's no problem.

Q (By Mr. Lowe) Were there any ammunition components, any of the calibers, any of the types of cartridges or any of the cartridges that you observed in this investigation which cannot be purchased commercially?

A The only area which I don't know about commercial availability would be with the .223 ammunition. I do not know if that has been released military, if that has been released for public purchase or not. Otherwise, no.

Q Now are you speaking then of what I think perhaps is usually called 5.56 millimeter ammunition which is actually manufactured for military purposes?

A Yes, sir.

Q You are well aware, I trust, that there are commercial manufacturers who sell .223 ammunition, am I correct about that?

A Oh, yes.

Q And as to all of the weapons that you examined in this case, do you know of any of them which are not commercially available to buy through gun stores or gun order houses or whatever it might be?

A The only weapon which is not commercially available is the M1 rifle. I don't know again as in the case of the ammunition if that were put on the market for public sale like some of the {3272} old 45s through the Director of Civilian Marksmanship.

Q You're not saying that M1 rifles are not sold by commercial gun stores secondhand, for example, or any store that has some M1s that you obtained from some stores, you're not saying that those are not sold in the United States, are you?

A I'm saying I don't know if they are.

Q To your knowledge is there anything illegal about the gun store selling an M1?

A Not --

Q If it has one.

A No. If it's not a stolen weapon, cleared military property, I'm sure it would be perfectly legal.

Q Now you had submitted to you a lot of ammunition components from what I will generally describe as the Jumping Bull area which includes what sometimes has been referred to as the crime scene and tent city and some other immediate adjacent areas. If I refer to the Jumping Bull area, will you just assume that we're talking about that small area right around Oglala, South Dakota, which includes the information shown on Government Exhibit 71 behind you and the environment so we know what --

A I have a lot of items identified as having come from tent city. Would you include that area?

Q Yes. I'd include that area.

{3273}

Now as to all of the components that you received, am I correct in saying that the ones that came from the Jumping Bull area were received -- let me ask you first of all if you have in front of your laboratory report dated August 5, 1975? I believe one of your first ones.

A Yes, sir, I do.

Q I believe that indicates that the specimens were received on July 5, 1975 and they were personally delivered by Special Agent William R. Fluharty, is that correct?

A Yes, sir. They were delivered by both Special Agent William Fluharty and Cortland Cunningham.

Q I believe you also received some other components from Special Agent Brugger, did you not, either directly or through mail or something?

A Those were sent to me by railway express.

Q Were those from Special Agent Brugger?

A Special Agent Brugger it's my understanding prepared the package and communication to submit those to me.

Q Let me ask you, maybe I'm just not understanding, how do you know or do you have any personal knowledge as to who sent them? You say it's your understanding. Is that based on what somebody told you or your own knowledge?

A That's based on what somebody told me. I have no personal knowledge except I received those items from Rapid City by railway express.

{3274}

MR. SIKMA: Your Honor, may we approach the bench?

THE COURT: You may.

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

MR. SIKMA: I want to find out here if we're running into some problem with regard to the chain of custody as far as these items which were sent by railway express or if there is some indication that they were not in fact packaged sometime around the 5th of July. I believe we're talking about the .223 that was sent in by railway express.

MR. LOWE: I hadn't intended to raise any such question. We're trying to get a factual basis established.

MR. SIKMA: It would appear that that's the case from the questions, and whether or not he knows that, and it puts us in a position if you're going to raise that we would possibly have to call this other agent.

MR. LOWE: At this point I have no basis for raising that. Just trying to establish what he said.

MR. SIKMA: All right.

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

Q (By Mr. Lowe) Am I correct in saying that all of the cartridges and other ammunition components from the Jumping Bull area that you received were either received in that shipment you received from Special Agent Fluharty or from the shipment {3275} you received by railway express from Special Agent Brugger, is that correct?

A The great majority of them. I cannot think of any items that I examined from the area you described as not having come from there. However, I would hesitate to exclude anything based upon my memory.

Q I'm not trying to trick you. I have no knowledge myself of any other components except in those two shipments. What I'm trying to determine is whether you have any that I just may not be aware of.

Q No. I can't think of anything that didn't come in with those two shipments.

MR. LOWE: May we confer for just a moment, Your Honor?

THE COURT: You may.

(Counsel confer.)

MR. LOWE: Your Honor, Mr. Sikma has agreed with me to stipulate that all components found in what I have described as the Jumping Bull area, in other words, tent city, the crime scene and immediate environment such as the so-called escape route and so forth, some open fields around the area, were submitted for testing by the FBI firearms laboratory either by the shipment or the delivery of Special Agent Cunningham and Special Agent Fluharty or by the railway express shipment of Special Agent Brugger.

{3276}

Did I state that correctly?

MR. SIKMA: Yes, Your Honor.

THE COURT: The record may show the stipulation.

Q (By Mr. Lowe) Now given -- strike that.

You never actually went to the Jumping Bull area, did you?

A No, sir.

Q So you are in a position of receiving items, identifying them as to particular pieces of material you received, making tests and reporting them to somebody else without knowing of your own knowledge where they came from or how they were found?

A That's correct.

Q And what follows from that then, I assume, is that you have no way of knowing whether you saw all of the casings or ammunition components of which were found in the Jumping Bull area but can only testify that you observed the ones that were sent to you by these two different sources?

A Yes, sir.

Q Now you mentioned before FBI ammunition and you were talking about Lake City. Is that an arsenal?

A That is an arsenal; yes, sir.

Q And you indicated it was stamped "LC" on the bottom of the cartridge casings and did not have a .223 designation. I was not clear when you were saying that whether you were testifying that Lake City Arsenal is the only arsenal that {3277} produces .223 or 5.56 millimeter ammunition. Is that what you were testifying?

A No, sir. Only that those cartridges manufactured in the Lake City Arsenal bear the head stamp "LC" and the year they were manufactured.

Q In fact, are there other arsenals that you know of or other sources that produce 5.56 millimeter ammunition and .223 caliber ammunition? Let's say, first of all, for the military.

Q There are other sources other than Lake City Arsenal, yes, sir.

Q Some of those are commercial, are they not?

A Yes.

Q And do I understand your testimony to be that the FBI only buys .223 or 5.56 millimeter ammunition from, or acquires it from the Lake City Arsenal?

A No, sir.

Q So that it is possible that at any given time an FBI agent who has 5.56 millimeter ammunition or .223 caliber ammunition for his M16 might have a commercial brand or Lake City brand or some other arsenal in his possession?

A The ammunition which the Bureau sends out for use in this weapon is military. It is not restricted to Lake City. It could be any military manufactured cartridge.

Q I don't think you understood my question.

{3278}

A Would you rephrase it.

Q I'll say it again.

At any given time an FBI agent in the field who has 5.56 millimeter or .223 caliber ammunition used in the M16 might have in his possession for that purpose commercial ammunition or military ammunition?

A Yes, he could have.

Q And I think we've been saying this, talking around this, but let's pin it down. The M16 and AR15 fire the same ammunition and the bore and everything in those weapons are really the same except for automatic and semi-automatic feature, aren't they?

A That and the attachment on the side of the gun.

Q Yes.

A Yes.

Q Now there has been some testimony about FBI agents firing weapons and BIA police officers in this general Jumping Bull area on June 26th. Did you receive any cartridge casings which either you were told were fired by law enforcement personnel or which you later made a determination on your own were fired by law enforcement personnel?

A Well, only with the exception of the weapons that we have here.

Q All right.

Excepting the five weapons, I believe it was, the {3279} shotgun, the 308 and the pistol of Special Agent Coler and the pistol of Special Agent Williams, I guess that's four weapons, other than those four weapons, did you receive any ammunition components which you subsequently determined or were told came from law enforcement personnel?

A No.

Q So if any such cartridge casings were found, they were removed from the total body of ammunition components prior to them being received by your laboratory?

A I cannot speculate on that. I did not have any weapons to make a comparison with those items, other than the four weapons I received here. I do have a large number of fired cartridge cases which I have not identified with any weapon.

Q All right.

There has been some discussion about the term, "high velocity." First of all, would it be correct for me to say that there is no standardized definition of exactly what is meant by the term "high velocity," in terms of from so many feet per second to so many feet per second and rather it's a judgmental thing and you might have an opinion and another firearms expert might have an opinion and a manufacturer might have a different opinion?

A From my point of view I know of no standardized definition of that; no, sir.

Q You have testified that the AR15 is a high velocity type {3280} weapon, I believe.

A That would fall within my definition of the term; yes, sir.

Q All right.

Would an M1 be a high velocity weapon?

A Yes, sir. It could hit --

Q And would a .303 British Enfield be a high velocity weapon?

A Yes, sir.

Q And could you name other weapons that you would consider a high velocity weapon?

A Yes, I could.

Q Would you do it.

A Well, there are several. Would you like me to restrict it to the items we have here?

Q First of all, yes, restrict them to the weapons we have here.

A Well, the M1 would be considered a high velocity weapon. The 303 British, the AR15, the 30-30 could be considered as high velocity. The others are relatively, the .44 magnum is relatively low velocity, under 2,000 feet per second, so I wouldn't group that in the same class with the more high powered. The same thing with the .45 automatic.

Q I assume other than the weapons we have here there would be a lot of other weapons you could name from your knowledge of weapons that would also be considered high velocity?

{3281}

A Yes, sir.

Q When you said before the .45 automatic, were you speaking of the cartridge or of the characteristics of the weapon, the Commando Mark III weapon as being an automatic weapon?

A In that particular instance I meant the weapon itself.

Q You're saying that the .45, the Commando Mark III, .45 weapon up there is a fully automatic weapon?

A No, sir. A .45 auto being the cartridge designation.

Q That's what I was getting at.

A Okay.

Q We have had some discussions here, as you might expect, about automatic and fully automatic. There is no doubt in your mind that Exhibit, I think it's 37A, the Commando Mark III is a semi-automatic weapon only, isn't it?

A That's correct.

{3282}

Q In addition, you have identified these various weapons that were high velocity. There are changes that can be made with particular ammunition if you load it yourself by loading it with a higher or faster burning powder and doing other things which would raise or lower the velocity of different ammunition components compared to the similar commercial component, isn't that also true?

A Yes.

Q Now, as to your case number here, you said in this case -- am I correct in saying that as to the RESMERS investigations that you made and examinations that you made that you used a single file number to identify all of the components that you actually did identify or report with regard to RESMERS and that that number was 89-3229, and do you want to check your lab reports?

A No . That's the number which is assigned to this particular case.

Q O.k. Now, I assume your procedure would be, if you get a whole lot of ammunition components and a number of weapons, that you would, first of all, examine the cartridges to see if there are identifiable marks which you know from your experience might relate to a weapon, and that you would in some way make notations and might make some preliminary thoughts as to what kind of weapon fired it; and then we simply go by trial and error in some way with some ammunition components in the weapons {3283} to see if you can bring about similar markings, is that generally what you would do?

A Well, we compare the fired components that we receive, In this case I compared all of the fired cartridge cases that I received with the test cartridge cases that I shot in the laboratory itself.

Now, there is no way to make a gun produce a mark on a cartridge case that -- or change those marks. You fire the gun, the marking is either there or it isn't there, so it isn't anything alterable by the laboratory examination.

Q Take an example, take the M-1, which is 29-A. I gather what you would do would be to take a clean, new M-1 cartridge, 30 aught six cartridge, perhaps preliminarily examine it to make sure there are no scratches or markings on it, you would put it or perhaps a clip of them in the weapon, take it to the range or test firing tank, fire the weapon a number of times, retrieve the ammunition components including the bullets and the cartridge casings, and then examine them to see what marks were made on the cartridge casing, either by the firing pin or the breech or in some weapons an extractor, and see whether you find markings on them that can compare to the ammunition components that you are trying to identify, would that be a general description of what you do?

A Yes, sir.

Q And as to the bullets that you find, the lands and grooves {3284} in the bore of the rifle or pistol, if it has lands and grooves, etch the lead or copper projectile as it goes through and puts some characteristic markings on that which then can be retrieved and compared with fragments, such as 34-H, which is on the chart behind you, to see whether you can match them up, and that's generally true, you do that?

A Yes, sir.

Q And would it be reasonable to say that you do that generally with all of these components and with the various weapons you are given, try different combinations -- in some cases you might have two or three different M-1's, you have to check and see which ones fired which cartridge case, isn't that true?

A Yes.

Q And when you get all done, you would make a report fairly contemporaneous with your test when it is concluded to whoever requested the information, telling them which weapons compare by your analysis, so that you can say that, first of all, some weapons fired certain cartridges to the exclusion of all other weapons, that's one category of findings?

A Yes.

Q A second category of finding might be that this cartridge case could not have been fired in this weapon, but I have no weapon that I can match it up with, that's a second finding, isn't it?

{3285}

A Yes.

Q A third finding might be that there are insufficient marks to determine whether this weapon is associated with this cartridge case, that's a third finding?

A Yes, sir.

Q And as to the findings, when there are no markings or very slight markings, in some instances you might even have a suspicion that it connects to a weapon but you have no way of determine that as a matter of your scientific examination unless you have sufficient markings to make your identification?

A That's correct.

Q All right. So that if a cartridge casing is found which has no markings on it at all of value that relate to a weapon, and if you have a weapon which makes a peculiar scratch when it ejects, let's say, you can say fairly certainly that this cartridge case was not fired in that weapon, but I don't know what other weapon it might have been fired in, isn't that true?

A That could be true in a particular instance, yes, sir.

Q And as to an ammunition component which has insufficient markings of any kind but has some markings on it, until such time as you are given a weapon which makes similar markings you are unable to say anything except that it apparently was fired in some weapon at some time?

A Yes, sir. I may be able to give a list of weapons that it could have been fired from.

{3286}

Q Fine. As to different weapons, I presume, that in some sort of an organized fashion in your laboratory, whether it is a book by manufacturers or a list that you make over the years, that if you see a particular type of scratch on a round you can by your experience and by your reference materials tell what kinds of weapons might have produced that scratch because you know the characteristics of a particular type of extractor, let's say, isn't that true?

A Well, the incidence of being able to do that is highly limited. The mechanism of a gun is -- in some cases, yes, sir, but I would say it is very limited. We prepare these lists generally from the rifling characteristics on fired bullets rather than from an examination of the cartridge cases.

Q If you have a bullet fragment that has, let's say, six lands and grooves -- and the lands being the raised portion and the grooves being, of course, the grooves, the cut out portions; and if they are within certain tolerances in terms of width, you can look to your reference sources and say what weapons might have fired that; you might give a list of two or ten depending upon what it is, isn't that true?

A Yes, sir.

Q And that would be true in some instances even if you do not have sufficient microscopic markings for comparison to a bullet that is fired from a known weapon because you can still count the lands and grooves or measure them, isn't that true?

{3287}

A Yes, sir.

Q And I presume that you made all of these types of tests we are talking about on the various components and weapons that were submitted to you in an effort to connect up any of these components that you could with any other weapons that you had, to the best of your ability in your laboratory?

A Yes.

Q I realize that as a professional you probably try to take great pains whenever you make an examination, whether it is a big case or a small case; but would it be fair to say that this has been one of the more important cases in terms of your efforts and the efforts of agents you have been associated with in trying to solve the case and in trying to connect up various firearms components, would that be fair?

A From my aspect of this firearms identification specialist's point of view this has been the most voluminous case that I have handled. I know of other cases the Bureau has worked on where similar manpower expenditure has been conducted.

Q And you, of course, were aware, first of all, generally, that the case involved the death of two FBI Agents, I trust?

A Yes, sir.

Q And recognizing that we all want to expend a 100 percent energy in everything we do, there are certain times you work a little harder than others, put a little extra emphasis on it; would it be fair to say in the range of cases you have worked {3288} on, you have worked as hard on this case as any you have ever worked on?

A Yes, sir.

Q We described, I think it was, Ju