VOLUME XVII

Pages 3458-3712

{3458}

TUESDAY MORNING SESSION

April 7, 1977

9:00 o'clock, A.M.

(Whereupon, the following proceedings were had and entered of record on Thursday morning, April 7, 1977, at 9:00 o'clock, A.M. without the hearing and presence of the jury, the defendant being present in person:)

THE COURT: The marshal service has informed me that one juror required some minor medical attention this morning and that juror is being taken to the clinic and probably will be 9:30 before they return.

There were some matters when we recessed yesterday evening that were pending. One of the problems we are continually facing in this case is the matter of evidence that is admissible or not admissible, and I'm sure Counsel for both sides are aware that I construe the issues in this case to be as set out in the indictment together with the defendant's plea of not guilty.

Now that the government has completed its presentation of evidence, the Court's position with reference to evidence to be offered by the defense is simply that evidence relative to the issues and the evidence presented by the government will be admitted. I will state, however, that witnesses who have testified will not be impeached by a showing of misconduct of the Federal Bureau of Investigation unless that misconduct relates to the testimony of the individual witnesses {3459} who have testified or unless that misconduct relates to exhibits that have been received in evidence. Under that standard I find no relevance in the Anna Mae Aquash matter.

With reference to Myrtle Poor Bear, she not having testified in the government's case, I can see no relevance in the matter of her testimony in a prior proceeding or her activity in connection with the extradition proceeding. The only thing that's relevant to the extradition proceeding is that they were had and the defendant was returned. Whether or not he should have been extradited is not an issue before this Court.

Some days ago I reserved ruling on Exhibit 166, the last paragraph of 166. The objection to that exhibit is sustained on two grounds. There is no foundation for the exhibit and it is irrelevant. The fact that the paper may have been received from the government does not establish its authenticity for evidence purposes and as near as I can determine, the purpose of the offer was to impeach Doll and possible Parlane. It's irrelevant for that purpose. Parlane testified and was never questioned on it and it is irrelevant for the impeachment of Doll. I shouldn't say he wasn't questioned on it. He wasn't questioned as to whether or not he had heard such a statement. He was simply questioned as to whether or not he had included that in his report.

Exhibit 185 and 186 will not be received. That's the {3460} list of rifles from which, that would accommodate certain ammunition. In the absence of a showing those rifles were actually found or in the area, those two exhibits have no probative value. Other than that, what is already been presented through the questioning of the witness and the presentation of the information to the jury.

Then we come to the matter of the laboratory report. I have examined those laboratory reports. The reports in their present form are going to be excluded under 403. They appear to be confusing and would be meaningless and cumulative to the jury. Furthermore, in the form that they are in some of them duplicate others. I have particular reference to 134 and 187. However, with reference to those laboratory reports, if the parties can get together and agree on what in those reports might be appropriate to present in evidence under Rule 1006, which is a summary evidence, I would give consideration to that. If the parties cannot get together, I would give consideration to an offer of a summary taken from those exhibits by the defense on those matters which they feel are relevant to their case. In other words, it would have to be relevant to what has been brought out on oral examination or otherwise shows some inconsistency to that which has been presented.

Exhibit 177 because of the discrepancy between it and information contained in 134 and 187 may be relevant but {3461} I'm going to reserve ruling on that at this time because standing alone it would not be particularly helpful and if Counsel can extract a summary from 134 or 187 that would make 177 meaningful to the jury, I would then consider receiving 177 because it may show up an inconsistency.

{3462}

MR. LOWE: Of course, your Honor, there is an inconsistency right internally within the document. That by itself has an internal consistency which impeaches one of two witnesses, at least casts doubt on Special Agent Hughes' testimony because Mr. Hodge shows one cartridge and Mr. Hughes shows two.

THE COURT: I have not turned that down. I do recognize an inconsistency. I may admit that, but I want to give you a chance to see if you can get something meaningful out of 134, 135, 187, 188, 189, 190, 191 and 192.

MR. LOWE: I gather what your Honor is saying, you are reserving final decision on those documents which were offered, except that you are indicating that you intend not to receive them as they were offered but to give us an opportunity to work out some summary or some culling of some sort.

THE COURT: That is right.

MR. LOWE: The offer is still pending as far as you are concerned until we come up with some suitable alternative?

THE COURT: Yes. The exhibits in their present form will not be received. I will give you an opportunity to work out something, some summary or something from those exhibits which would have some probative value and would {3463} be presented to the jury and would not be misleading or confusing.

MR. LOWE: We will still try to work something out in view of your ruling to avert having to recall Mr. Hodge. I will get together with Mr. Sikma sometime today or Monday to try to work it out.

MR. HULTMAN: Would you read the last total list? You read off the total list. I don't have copies on all of them, but I know they are reports, so I would like to have it.

THE COURT: The list which I just read was 134, 135, 177 -- 177, of course, I think the Government produced?

MR. HULTMAN: Yes.

THE COURT: 187, 188, 189, 190, 191 and 192.

MR. HULTMAN: Thank you.

THE COURT: Those are the lab reports.

Now, unless counsel has something more to present at this time, we will recess until the jury can be brought in.

MR. TAIKEFF: There are some matters, your Honor, if you have some time.

THE COURT: Very well, you may proceed.

MR. TAIKEFF: Pursuant to the position taken by the defense yesterday, we wish to notify the Government of two additional witnesses who have been qualified since the time we recessed yesterday afternoon. That is Lavina Deloria -- {3464} (spelling) D-e-l-o-r-i-a -- and Jimmy Durham -- (spelling) J-i-m-m-y D-u-r-h-a-m.

I believe that an application was made which is pending before your Honor, and that is for the Government to reveal the names of the two Special Agents who prepared the Myrtle Poor Bear affidavit.

MR. HULTMAN: Well, your Honor, one, I resist, and two, I think the matter is now moot, and thirdly, I do not know, standing here, but I want, one, the Court to know that I resist that particular motion; and two, I feel that it is a moot matter; and three, if the Court does make such a ruling, I will, of course, proceed accordingly to make inquiry. I don't even know it is a fact that it is two individuals, whether or not it is a lawyer or anyone.

THE COURT: I think that in fairness to the defense you should reveal the names. I don't know that it has any relevancy.

MR. HULTMAN: I will make the search. I am not prepared because I don't --

THE COURT: (Interrupting) Maybe the defense can find some relevancy if you reveal the names.

MR. TAIKEFF: Your Honor, I would like to address myself to what appears to be the articulated basis of your Honor's ruling in connection with the Myrtle Poor Bear matter. I gather from what your Honor says that if {3465} we could produce a witness who would say that he or she was approached by Agents of the Federal Bureau of Investigation and offered an inducement of one kind or another to give knowingly false testimony against Leonard Peltier in order to assist in the successful prosecution of him, such evidence would not be relevant if that person was not called to testify during the Government's case. Do I misunderstand, your Honor?

THE COURT: It depends upon who the person would be -- I mean who the FBI Agent was.

MR. TAIKEFF: One of the Agents involved in the central part of the investigation of this case.

THE COURT: Did he testify in this case?

MR. HULTMAN: Well, your Honor, might I interpose? Is the statement that counsel is now making that money was given? The postulates that you have just made, counsel, are you postulating that is what with an offer of proof you will be showing as far as Myrtle Poor Bear?

I want to make sure we are on the same track here.

MR. TAIKEFF: Your Honor, if Mr. Hultman would listen to what I say --

MR. HULTMAN: (Interrupting) I am trying to. That's why I am asking.

MR. TAIKEFF: One of the very few talents, if I have any, is to articulate clearly and unambiguously.

{3466}

I put a question to your Honor to see whether or not I understood the basis of your Honor's ruling. I put it to your Honor, what I would say is a hypothetical.

MR. HULTMAN: That's what I wanted to know. You are talking first about Myrtle Poor Bear, and then you propose a hypothetical.

MR. TAIKEFF: It seems to me that is what your Honor says.

It also seems to me it doesn't matter which Agent it is if in connection with his official duties, a Special Agent of the FBI went to someone and said -- I am giving your Honor an extreme hypothetical so there won't be any ambiguities -- "We need some extra evidence against Leonard Peltier."

Is your Honor saying we cannot introduce evidence of that through a person so contacted by the FBI because that person was not called?

THE COURT: I am not going to give you a ruling on a hypothetical question. I am simply stating that evidence relevant to the issues and relevant to the evidence which has been presented by the Government will be admitted; and I further stated that witnesses who have testified will not be impeached by a showing of misconduct of the FBI, in other words, general misconduct of the FBI.

MR. TAIKEFF: First of all, we don't intend to offer {3467} general misconduct of the FBI evidence.

Secondly, we don't offer it to impeach a particular witness as to that particular witness' testimony, except to the extent that any witness may have been asked whether that witness participated in any illegal activities in an effort to convict the Defendant. Other than that we don't offer that as impeachment evidence. We offer that as affirmative proof, evidence in chief, of the effort by certain members of the Federal Bureau of Investigation to falsely and improperly assemble evidence against the Defendant; and we will call two separate witnesses, and I am not talking about Myrtle Poor Bear -- two separate witnesses, one of whom will testify to serious threats in an effort to induce that witness to give false and perjurious testimony; and we will call another witness who will say that he wasn't threatened with physical harm, but he was threatened with a prosecution for which there was no factual basis if that person did not assist the FBI.

Now, the Myrtle Poor Bear episode is one additional episode in the sequence of events which we have uncovered concerning the Government's effort to prosecute Leonard Peltier successfully when otherwise they might not be able to do so or entitled to do so.

I quite frankly, your Honor, with all due respect to {3468} the Court, cannot possibly understand your Honor saying that such evidence is not relevant in this case.

THE COURT: I want to make it clear I did not say that such evidence is not relevant.

MR. TAIKEFF: Myrtle Poor Bear is just one more similar type event. In her case there were, we believe and we have subpoenas out --

THE COURT: (Interrupting) Just a moment. I also did not say it was relevant, I just said I am not going to rule on it at this time until I see specifically what the evidence is.

MR. TAIKEFF: We won't attempt to put on the Myrtle Poor Bear evidence until we produce the evidence in the other matters. It won't come in by a vacuum. Perhaps by then we will have laid a sufficient foundation to satisfy your Honor that there is at least a fact question for the jury to determine whether or not the FBI conducted themselves in an improper and illegal manner in connection with the prosecution of this Defendant for these charges.

THE COURT: Well, let's assume that they did not. How does that bear on the question as to whether or not this Defendant is innocent or guilty, based on the evidence presented by the Government?

MR. TAIKEFF: That's precisely the point . I assumed your Honor might want to pose this question. Let's {3469} assume that they did not --

THE COURT: I meant to say "did".

MR. TAIKEFF: All right. If you assume that they did, the specific kinds of evidence that they wanted certain witnesses to offer, which the witnesses knew and told the FBI was not true, are identical in certain respects to other items of evidence which the Government has adduced through witnesses similarly situated.

{3470}

And it only goes to show that as to certain witness's testimony the FBI succeeded in getting certain witnesses to give that testimony. When someone was in an exact same posture to perceive, to remember and to be a witness to the very same events. Say A it isn't true, and B the FBI pressured me to say those things.

Now, if witness B says I was threatened to say X, and X is not true and I was there with A and we both saw and it couldn't be that, I didn't see X, but A saw X, and the witness A testifies to X it raises a serious question as to both the conduct of the FBI in connection with this prosecution and the veracity of the testimony of A with respect to subject X.

Now, the witness who comes to testify, if that witness has been intimidated, is successfully intimidated; and hence will not say this isn't true. Obviously a witness who has been successfully intimidated isn't going to get up on direct, and give the testimony, and on cross-examination say, "Oh, by the way, it wasn't true, I did it only because the FBI bent my arm." But if someone who was standing next to witness A and who observed the same events, and who says affirmatively X is not true, and the FBI came to me and threatened and said you must X or else, then we prove the nature of the FBI involvement in this case, and we also tend to prove by rebuttal evidence the falsity of X which is the {3471} testimony given by A. It's a very simple proposition.

I just can't understand how Your Honor thinks that it's something that we shouldn't be able to prove, or shouldn't be allowed to prove in this case.

Indeed one of the witnesses, I'm reminded by Mr. Lowe, testified that he was physically threatened and tied in a chair and kept that way for three hours. And now maintain --

THE COURT: And that was brought out.

MR. TAIKEFF: That was brought out, but another witness will testify that the very same critical testimony that Anderson gave here in his direct was something which isn't true and which the FBI tried to bend his arm to say was true.

Now, in an earlier phase of this case the Government asserted that a certain witness was being coerced by certain forces; and Your Honor's position with respect to that witness's disavowing of the coercion was if there is a coercion the witness who has been successfully coerced is not going to tell the truth about having been coerced. Now, I don't see why it's okay for the Government to take that position, but it's not okay for the defense to take that very same position.

If Your Honor did not believe Angie Long Visitor's unqualified assertion that the Government was having a fantasy about herself being coerced and Your Honor's view of it {3472} therefore must have been based upon the fact that if indeed she was coerced we cannot accept as credible her denial of the coercion. That principle must apply equally in this situation for the defense. Your Honor doesn't have to believe the witness we produce but Your Honor is not the fact finder.

THE COURT: I'm not the fact finder.

MR. TAIKEFF: I understand that. If someone says X and someone says minus X, that by classical definition is a factual dispute that can only be resolved by that jury, providing it's relevant.

Now, it's clearly relevant. If someone says that they saw Leonard Peltier down by the cars and another witness says that the FBI insisted that a certain witness testify to that, even though the witness said that wasn't true, he was never down by the cars, then surely that goes to the question of whether the first witness was telling the truth in that particular sense with respect to that particular fact.

Now, Myrtle Poor Bear may or may not have been threatened. We have an ongoing investigation with respect to the question of whether or not she was threatened as well as being manipulated. We have concluded our investigation in that regard. But it makes little difference whether you go to somebody who is totally competent and threaten them with physical harm or with an unfounded prosecution, or whether you go to someone who is in one sense or another a mental defective, {3473} and you manipulate them and get them to cooperate with you. I can't imagine that it makes any difference if believed, and at this particular juncture, just as Your Honor takes a certain view of the Government's evidence when deciding a Rule 29 motion, Your Honor doesn't decide whether it's true or not unless it is incredible as a matter of law.

Your Honor need only determine whether if true that testimony will or could influence the jury's decision. Now, I don't think Your Honor can find, with all due respect to Your Honor, that if the jury believe that the FBI did things like this to the three witnesses that we will produce, including Myrtle Poor Bear, that they can have sufficient confidence in the prosecution's evidence. The evidence that concerns the important stuff in this case, not the myriad of window dressing that we heard. I'm astounded at the suggestion, if that's the suggestion Your Honor has made, that we cannot prove conduct like that.

Now, I said to Your Honor yesterday that, and I trust that Your Honor accepted it for what it said, we don't intend to assert any general wrongdoing on the part of the FBI. It is not our purpose here to attack the FBI generally, or to rake up any old episodes of recent United States history. What we're talking about, what we intend to introduce evidence about, is conduct of those agents of the FBI who worked on this case which concerns itself with an effort to convict {3474} Leonard Peltier of the murder of these two agents, and that's all.

And, Your Honor, I am just amazed that Your Honor even suggests that conduct of that kind, if we have evidence of it, is not something that the jury should hear.

MR. HULTMAN: May I respond?

THE COURT: You may. I just want to ask counsel, does the, is it your contention that the Anna, or is it Anne?

MR. TAIKEFF: Anna Mae.

THE COURT: Anna Mae Aquash matter falls in the category you have described?

MR. TAIKEFF: No, Your Honor. I made that concession yesterday that it does not. I told Your Honor that there are certain members of the defense who strenuously disagree with me and although we usually work as a team and we proceed by consensus, this is one issue where I take individual action and concede to Your Honor that it is not relevant.

If before we rest we develop a sufficient foundation, a sufficient annexus, I will not be ashamed to come to Your Honor and say I've changed my mind and I offer to prove that. But I made that concession yesterday.

The facts of the Anna Mae Aquash episode are not irrelevant in my opinion to this trial. I'm in a minority in the defense team, but my concession is on the record.

THE COURT: Well, I don't want counsel to feel that I {3475} am foreclosing you from bringing in the witnesses of the type that you have suggested. Whether or not that evidence is admissible I have not yet determined in my mind.

MR. TAIKEFF: In apropos, I understand what Your Honor has just said. I do want to address myself to another --

MR. HULTMAN: Could I address?

THE COURT: I have not heard Mr. Hultman.

MR. TAIKEFF: I'm sorry.

MR. HULTMAN: I don't want equal time, I just want a little time.

Your Honor, first of all let us go beyond, and that's all I was trying to get at in asking counsel a specific question or two, let us get beyond hypotheses and get to what an offer of proof would show, because that's what we're really here to talk about. So let us talk specifically I believe for a moment about what counsel, he finally did get to naming a specific piece of testimony and a specific witness.

I will carry that beyond to another specific individual whom I believe he's even going to call. Counsel has referred to two people, to use his words, in a hypotheses standing together, looking at something, one saying one thing and somebody making that person say something different. Now, first of all I don't think when the offer of proof comes there is going to be any showing of any kind that two people were standing observing exactly the same thing at the same time.

{3476}

What the proof is going to show and what it has already shown is that Mr. Anderson and Mr. Brown, and if Counsel wants to indicate that it's somebody other than Mr. Brown who is going to be the individual, then I'll be glad to change my hypothesis, that these two individuals stood and observed exactly the same thing. I submit, first of all, that hypothesis is so fantastic that the proof will not conform in any way. They were two people doing different things at different times in different places and observing something at a given time possibly, but in many times not observing the same things at all.

Now secondly I believe that the offer, were it to be an offer, will show we're not talking about iffy, iffy, iffy, but we're talking about specifics, we'll likewise show that the testimony that Mr. Brown has already given on the stand and about the events we're now concerned with on the stand that happen on the 26th, and there was cross-examination about the events that happened on the 26th, what he saw, what he observed and what he did. That is evidence in this case and that is what now Counsel in some way, unless they can attack that testimony that it is dishonest, that it is incorrect, that in some way that testimony is wrong, then I say it's a collateral issue totally and that's the point I wish to make four square, straight out on the record.

If you're going to dredge up things that Mr. Brown {3477} may have testified about, then we're talking about collateral matters. Unless it is something which in fact did happen and Counsel is wishing to take that position from the beginning and thus they had an opportunity by direct examination and cross-examination to get at those matters, I say that is a collateral matter which has no relevancy of any kind in this case.

Now let's deal then with a further specific. The mere facts that an individual sees certain things but does not see other things at other times and places because he doesn't happen to be observing a very given event at that time in no way can then be used as proof that because another person sees something in addition, because he was looking at cars and at the events at a given time when certain things do take place, that we can conjure up at another time and another place some alleged or possible testimony of the witness who has been on the stand to disprove the testimony of the individual who has been on the stand, who has been cross-examined about the very events and things that he saw as a basis then to impeach him. I say, Your Honor, that's irrelevant, that's the straw man, that's the position that the Court has espoused a little bit ago. That's the very strong position that the government takes.

MR. TAIKEFF: Your Honor, since Mr. Hultman has focused attention on the Norman Brown aspect of the case, I {3478} will address myself to it but not by way of making an offer of proof but rather by trying to show Your Honor the technique, maybe not a conscious one, maybe one of necessity, which was employed in this case and which did not provide a basis Your Honor inhibiting us in our legitimate endeavors.

Norman Brown did not testify on his direct examination in this case to certain matters. He did not testify to those matters because he was not asked. I have no right to inquire of Mr. Hultman as to why he did not ask certain questions but I can tell Your Honor this: that our investigation reveals as to those matters, those particular matters that I've referred to without any specificity that the government did not ask about on this trial, the witness previously testified under oath, and our inquiries of the witness reveals that it is the witness's position that the witness previously perjured himself with respect to those matters, and at the insistence and upon the threats of the FBI.

Your Honor, I think Mr. Crooks is having some sort of a unique medical syndrome. Every time I say something about the FBI he seems to laugh. Now, I would certainly join in application for a recess so he would consult a doctor.

Now, Norman Brown is going to testify that in a previous proceeding under oath he gave certain testimony and that it was knowingly perjured testimony but that he did so under threats and coercion by the FBI, and that finally he decided {3479} to be brave and to be honest and he came into this courtroom and for the first time in connection with any proceeding at which he testified he took his oath upon the sacred pipe and resolved to tell the truth and only the truth. He was not asked those questions by Mr. Hultman. I don't mean to suggest by that so Mr. Hultman will not rise in anger that this is any plot of Mr. Hultman's. It must be clear to any lawyer who is interviewing a witness that if the witness is not going to say the desired answer to a certain question you don't ask that question. I do that, Mr. Hultman does that and I think any trial lawyer who knows what he's doing does that. The point is that Norman Brown was not prepared to give that testimony in this trial. That doesn't end the matter for defense. That doesn't preclude us because Norman Brown wouldn't say it in this trial because he swore on the sacred pipe this time and hence Mr. Hultman performing his function as lawyer didn't ask him that question. But it turns out that someone else testified that way, someone who did come under the influence of the FBI and who did not testify on the sacred pipe, even though in an interview the day before when asked if he believed in the religion of the pipe he said, "Yes," and when asked if he would then swear on the pipe before he gave his testimony he said, "Yes, I will," but when he came into this courtroom he did not.

Now for the jury not to have the circle closed to {3480} hear Norman Brown's version of what went on at pretrial with respect to that single aspect of the case, surely that's not an unimportant aspect. It may be one of the major reasons why Your Honor denied our Rule 29 Application, because there's prima-facie testimony saying that the defendant was down by the car or cars when the agents were found dead. That's a critical piece of testimony in this case. Surely if we could elicit the five most significant pieces of testimony in this case, that has to be number one or number two.

I don't understand how Mr. Hultman thinks that if a witness is willing to come into this courtroom and swear to the fact that, A, it isn't true and, B, he was threatened by the FBI to give that testimony and in fact fell victim to those threats and gave that testimony under oath perjuriously on an earlier proceeding, how that's not relevant.

I can understand Mr. Hultman not wanting to hear that testimony in this courtroom but that doesn't provide a basis for blocking us legally from doing it.

MR. HULTMAN: Could I respond before you go to another matter?

THE COURT: Before you respond, because of comments which Counsel made, I would like with, with reference to the sacred pipe, I would like to ask you for your interpretation of Rule 610, "evidence of the beliefs or opinions of a witness on mutters of religion is not admissible for the purpose of {3481} showing that by reason of their nature his credibility is impaired or enhanced." I'd like your interpretation of that rule.

This matter of the distinction has been made by Mr. Lowe I think on a couple of occasions and now you have made it in your comments about a witness having taken the regular oath, a native American witness having taken the regular oath rather than the oath on the pipe and I'm just wondering what your interpretation of this rule of evidence which I just read is with reference to these comments which Mr. Lowe made in the course of the trial and which you have now made out of the presence of the jury.

MR. TAIKEFF: I have a response I want to make. I'll consult with Mr. Englestein so I have the best possible response.

THE COURT: I notice he's bending your ear.

MR. TAIKEFF: Your Honor, I believe that that rule addresses itself to an entirely different proposition. That rule would prevent somebody from cross-examining a witness and saying to that witness, "Isn't it a fact you don't believe in God," and then using that as some basis for arguing to the jury that a person who doesn't believe in God should not be believed.

What we're dealing with is the fact that a certain

{3482} person has a certain religion which under the normal course of events would require that person to take his oath in a certain way, a very significant way. In fact, it is believed by those who follow the religion of the pipe that if you take an oath or make a commitment on the pipe and you do not fulfill it in every sense of the word that a terrible thing will happen to you, there will be a death to your family or maybe you yourself will die as a result of that.

Now when a witness believes that way, comes into court already a member of that religious belief and then does not pursue the taking of the oath in the way in which you would expect a person who concededly had those religious beliefs would, then there is some significance to it.

THE COURT: I read the first sentence of the advisory committee's notes: "While the rule forecloses inquiry into his religious beliefs or opinions of a witness for a purpose of showing that his character for truthfulness is affected by their nature and inquiry for the purpose of showing interest or bias because of them is not within the prohibition."

MR. TAIKEFF: Your Honor, the first part of that, the preamble portion of that I think parallels to what I said to Your Honor was my belief as to the meaning of that rule. That is to say, it is not possible to ask somebody whether they are an atheist as a means of impeaching that person. On the other hand, if there is some aspect of his religiosity {3483} which may in the example given cause bias, let's say a member of a particular church is on trial, that would be appropriate; in other words, total, there is not a total prohibition on any reference to religion or religious beliefs but it is not possible to impeach someone who may be agnostic or atheist.

THE COURT: I think a suggestion that a witness's testimony may be more credible because he took an oath on a pipe or less credible because he didn't take an oath on a pipe or any suggestion to that effect it seems to me is totally in conflict with this rule.

MR. TAIKEFF: As between two witnesses. As between a witness who swears on the bible and then a witness who comes in and swears on the constitution and then a witness who comes in and swears on the sacred pipe, Your Honor, is absolutely correct. But as to a witness who professes a certain kind of belief, suppose a Christian person came in and claimed to be a devout Christian but refused to take an oath an a bible, only wished to affirm to tell the truth, I think that's an area of a legitimate inquiry. "How come you will not swear in the name of the bible if you are a Christian who believes in the bible," is a legitimate inquiry.

THE COURT: I'm not going to pursue this any further. I just wanted to raise the point because, as I say, comments that you made on this dialogue this morning and particularly {3484} because of comments by Mr. Lowe made with reference to his cross-examination of a couple of Indian witnesses.

MR. TAIKEFF: Your Honor, I do not mean to suggest that the defense at any time will either offer testimony or argue that a person who swears on the pipe is more believable than a person who swears on the bible or any other form of acceptable oath, but there is a very special issue here and that is a person who does in fact follow the religion of the pipe and who avoids the confrontation of swearing on the pipe, that is a relevant and significant matter, particularly when that witness says before he testifies, "yes, I'm going to so swear on the pipe," and then does not.

THE COURT: That is not an issue for the jury.

MR. TAIKEFF: If that's Your Honor's ruling, obviously we will abide by Your Honor's ruling but we accept from Your Honor's ruling.

THE COURT: That is not an issue for the jury. That's an issue between the Court and the witness how he wants to take his oath. Once he takes the oath, he stands in the same position as anyone else who has taken the oath.

MR. TAIKEFF: That's a determination as to the matter of law whether or not the witness has taken an appropriate oath to make the witness a competent witness.

THE COURT: That is right.

MR. TAIKEFF: But as to the witness' credibility, that's {3485} an issue for the jury.

THE COURT: That credibility will not be enhanced under Rule 610. Rule 610 prescribes attempting to enhance or diminish the credibility of that witness by reason of having taken the oath in one form or another but the matter is closed for now.

MR. HULTMAN: Your Honor, on the old matter --

THE COURT: By the way, I'll advise counsel for both sides I have been informed that the juror is back and the jury is ready to proceed.

MR. HULTMAN: This will be brief, Your Honor. First of all, Your Honor, on the last matter, it seems to me, and I only bring it up because it seems to me that Counsel is now trying to take a position which is astounding to me that, one, an individual who has previously said, "I am telling the truth and I will tell the truth," that because he hasn't sworn on a sacred pipe at that particular moment that he's not going to do what he said he's going to do.

Secondly, when he's been given an oath which he has taken to tell the truth that because, again because he hasn't taken on the pipe that there is something automatically concluded that he's going to be a liar and I say that's astounding, that conclusion to me.

But let me go now back to the item I wanted to discuss for a moment in response. Counsel somehow, and I'm going to {3486} approach the exhibit because it will be a little more demonstrative and maybe I'll use less words. Counsel somehow has taken the position that when the government asked Brown what took place on the 26th that it then deprived Counsel because I didn't ask a specific question about something in particular that took place on the 26th concerning one little shred of the event, that I then closed him out as far as on cross-examination from going into the matter. That appears to me astounding under the Rules.

But let's assume that that is the conclusion that was drawn. There isn't any question and Counsel, learned Counsels know without any question and under Rule 611b that is all he's got to do is just ask a question and unless objection comes he's going to get whatever answer to whatever question concerning whatever events were included on the 26th that he wants to ask, and in fact even if there was objection, the Court under 611b can then indicate, "Counsel, you can go ahead and ask the question because it's very appropriate this time and place." I merely want to make the point, Your Honor, that it seems to me absolutely astounding, the concept and the argument that somehow the matters that we're now going to talk about with reference to Brown were being deprived, that the government by not asking a given question somehow specifically deprived Counsel from attacking whatever that issue was straight on, head on right then {3487} and there when the witness was on the stand and that's the only thing I want to respond to with reference to that particular additional comment by Counsel.

MR. TAIKEFF: Your Honor ruled on numerous occasions that we could not go into anything on cross that was not covered on direct and that we would have to reserve certain witnesses and additional testimony from those witnesses to our own case. That was something that was not gone into and I would surely have been deprived of a proper presentation to the jury assuming that Your Honor allowed me to ask the first question. I think the record is clear that Your Honor would not have allowed me to then pursue the background facts concerning that bit of testimony because of Your Honor's ruling about not going into things on cross that were not covered on direct. So I saved not only the background but that particular bit of evidence for our own case.

{3488}

The only reason I did it that way was because your Honor had ruled on several occasions that we separate the two cases.

There is one point that remains open on topics already covered this morning, and that is concerning the Myrtle Poor Bear matter. We have never been able to talk to her. As I previously indicated to your Honor, one afternoon about two weeks ago Mr. Crooks notified us that she was about to be released from protective custody. She was presently then and there in the Marshal's office. He said that he did not believe that she would be willing to talk to us, and he thought that we should go in and ask her the one question, that presumably being, "Will you voluntarily speak with us?" and presumably her answer would be "no", and that would be the end of it.

When we went in there, as we previously indicated to your Honor, we found that Chief Deputy Warren and one of his deputies was there, and we asked whether those two people would leave so we could have a chance to speak with this person; and we were told in words or substance, "No, we won't leave, why don't you ask your one question and be done with it?" -- and we have a transcript of that to show it to your Honor, so apparently both Mr. Warren and Mr. Crooks had the same view of the situation. They both seemed to know we were only going to get a chance to ask {3489} one question, and they apparently knew what the answer was going to be; and the answer was, "No, I will not speak with you." That's the only dialogue we have ever had with Myrtle Poor Bear.

Now, if Mr. Hultman wants an offer of proof and if at the time your Honor requires an offer of proof before we can make any presentation to the jury, the only way we can do that is putting Myrtle Poor Bear on the stand. We cannot tell your Honor precisely what the testimony will be because we have never spoken with her. She has refused to speak with us, and that means that Myrtle Poor Bear has to be brought in and that an appropriate effort has to be made to get her here.

Now, as of this time she is apparently unavailable to get, and I understand that the Marshal, Chief Deputy Warren was going to report to your Honor this morning as to the progress of that particular search and the effort to bring her here.

I would assume that if some definite word of her arrival is not available by approximately midday, then we will have to apply to your Honor for appropriate relief in order to get her here, but we are intent on bringing her here, and at the very least having your Honor hear her testimony.

We believe it would be perfectly appropriate to put {3490} her on and ask her questions in the presence of the jury. Quite frankly, we don't know what her answers are going to be. We suspect what they are going to be. We have a good faith belief what they are going to be. We don't know until we put her on the stand, so we are not in a position to make an offer of proof.

MR. CROOKS: Your Honor, could I rise very briefly on this matter?

THE COURT: I would like to terminate this discussion as quickly as possible and get on with the jury. We have kept them waiting since about 3:20 yesterday afternoon.

MR. CROOKS: The only thing I wanted to say, your Honor, counsel apparently inferred or implied that Mr. Warren or myself were guilty of some kind of a misconduct insofar as Myrtle Poor Bear; and I can assure the Court that neither of us were guilty of any kind of misconduct. Miss Poor Bear informed us that she did not wish to speak with defense counsel, and I informed her that she had a right to or not to and it was her decision; and that's exactly what I told defense counsel, and I think it is unfortunate that counsel repeatedly infers that the Government is somehow or other doing something untoward to them and that is not, that is not correct and counsel knows it is not correct. I informed them at the time we came out.

The other thing I would like to touch on very briefly, {3491} I am rather astounded that counsel stood up yesterday and spoke for approximately half an hour about what one could tell at a glance by talking to Myrtle Poor Bear; and here it turns out he has never talked to her other than to ask her if she wants him to and she has responded in the negative.

MR. TAIKEFF: That was the glance.

MR. CROOKS: Apparently counsel is clairvoyant, which would again indicate the sheer fantasy of counsel's argument.

Co-counsel, I believe the record will show, talked to her a year or so ago, and she indicated she did not wish to talk.

MR. LOWE: That was another glance.

MR. CROOKS: So apparently both of them are clairvoyant as to Myrtle Poor Bear.

It seems to me, your Honor, that counsel is indicating that they want to put Myrtle Poor Bear on simply to destroy the poor woman; and it is very obvious from their presentation that's exactly what they want to do, and that I think is exactly why the Court has already ruled that that is not going to be relevant unless there is a further showing.

As a matter of fact, I think there will be testimony from Myrtle Poor Bear, if she does testify, that she has {3492} been harassed. It has not been the Federal Bureau of Investigation that harassed her, and I leave it to supposition who the parties would be that have done the harassing, but it is not the Federal Bureau of Investigation because, unlike Mr. Taikeff, I have talked to Myrtle Poor Bear, and I have some basis for what I say.

MR. TAIKEFF: Your Honor, I have to ask your Honor a question before the jury is brought in because it will determine how we proceed. I don't mean to prolong this any longer than necessary.

With respect to Defendant's Exhibit 166 -- that's the document from which we offered Paragraph No. 4 -- I believe your Honor said that there was not a sufficient basis, by way of authenticity, establishing who prepared it, what its source was, and that was one of the grounds upon which your Honor rejected it.

I gather then that we would be permitted to offer proof as to where it came it from and how it was prepared, and what its basis is, am I correct in that assumption?

THE COURT: Except that --

MR. HULTMAN: (Interrupting) Your Honor, which exhibit?

THE COURT: 166.

MR. HULTMAN: I don't have a copy.

MR. TAIKEFF: That's the document that purportedly {3493} listed the four separate admissions made by Mr. Peltier.

THE COURT: The second reason was that it was irrelevant.

MR. TAIKEFF: Well, I am mindful of that. That's why I put my question to the Court.

Will the Court allow us to show its authenticity, would that in any way affect the question of the relevance?

Suppose, for instance, a witness was competent to do so was called and said, "This document was prepared by the Government," based upon consultations with either the people who claimed to have received the admissions or their superiors. Would that then be a sufficient foundation as to its accuracy and authenticity and source as well as affect the relevancy?

I ask that question not out of academic curiosity, because if your Honor answers my question in the affirmative, I want to put on such proof.

THE COURT: And for what purpose would it be offered?

MR. TAIKEFF: To show -- you mean what ultimate purpose?

THE COURT: Yes.

MR. TAIKEFF: To show that an admission -- the Government was at an earlier stage in these proceedings prepared to show an admission by one police officer which was not in that police officer's report although that police officer {3494} wrote a lengthy detailed report purporting to summarize all conversations had with the Defendant; that the absence of that particular alleged admission was particularly significant because it virtually contained an admission of guilt in this case.

Its content is such that it essentially admits the murder or murders, depending on whether you read the singular to mean only the singular, or the singular to mean plural -- of the two FBI Agents.

That admission was something which the Government was told would be made. I am not saying that the Government created that admission. I am saying the Government accepted from a reliable source, a source that they viewed as being reliable, a statement that a police officer had heard such an admission. The proof of the fact that they accepted it as being reliable and that it came from a reliable law enforcement source is that in the course of making information known to the defense at the earlier trial, they prepared that document and listed that admission. Now, the text of that admission --

THE COURT: (Interrupting) I am aware of it.

MR. TAIKEFF: You are aware of it?

THE COURT: I am aware of it.

MR. TAIKEFF: Basically that he would have shot them if he had known they were cops, and he had done it before.

{3495}

THE COURT: It is entirely conceivable that either side may, in the preparation of their case, accumulate what may appear to be evidence and disclose it to the other side, and then on further investigation find that it has no basis and not offer it. The fact that neither side asked Parlane as to whether he heard that statement, when he was on the witness stand and when they had the opportunity to do so, is the basis for the Court's ruling that it is irrelevant and there is no relevancy, in addition to the fact that the foundation is lacking, but to cure the foundation defect does not cure the relevancy.

MR. TAIKEFF: But your Honor, first of all, it is such a significant admission, if made, that the failure of the Government to adduce it raises serious questions which they certainly could explain in rebuttal, if not on cross examination, during the defense case; but to say that as a threshold matter that is something that the jury cannot consider, when presumably the evidence was there, how did it get there? What was the source of it? Why was it then not brought to the jury's attention? This seems to be a highly significant and relevant matter.

THE COURT: I have ruled.

MR. TAIKEFF: So your Honor is saying that establishing the foundation isn't going to do us any good?

THE COURT: That is right.

{3496}

MR. TAIKEFF: All right.

MR. LOWE: I have a 60 second application. The Clerk can strike me down physically if I go over that time.

In laboratory report, PCM052 -- excuse me -- 0520MM, dated February 10, 1976, there is a reference to laboratory report, PC-M0794MM, dated 12-16-75, which we do not have to the best of our information and belief; and we do not believe we received a copy from the Government. I checked with Mr. Sikma and Mr. Hodge yesterday as relates to firearms, neither of them can produce a copy; and I am confident in good faith that they looked in their files and they didn't have it.

We would call on the Government to produce that laboratory report, or if that is an incorrect identification of the laboratory report in the first cited laboratory report, we would ask for a correct identification of it so we can use it.

We believe it is Brady material. I will give this card to Mr. Hultman. I want to put it on the record. I realize they have to make a search. Mr. Sikma said he would try to find it, and I will check again. This is the reference (handing).

THE COURT: The jury may be brought in.

MR. HULTMAN: Your Honor, might I ask a question to know the first witness may be so I might have a moment -- {3497} I would like to know.

THE COURT: Are the defense willing to disclose the name of the first witness?

MR. TAIKEFF: Yes. Jean Day. I have given the names to Mr. Hultman yesterday in the order in which we intend to call them.

MR. HULTMAN: I appreciate that, counsel. I did not know that.

(Whereupon, at 10:04 o'clock, a.m., the jury returned to the courtroom; and the following further proceedings were had in the presence and hearing of the jury:)

THE COURT: As the jury is aware, the Government completed the presentation of its evidence yesterday and the defense counsel had indicated that they do intend to present evidence.

Now, I have not repeated my admonition each day because I know that the jury is very much aware of it; and that is that until all of the evidence is in and until the case has been submitted to you for your deliberations under the instructions from the Court on the law, you must continue to keep an open mind and not reach any conclusions in the case and not discuss it with anyone.

There is just one other matter that I should mention to you. It is possible that the defense, in presenting its case, may recall some witnesses that have previously {3498} testified.

As a general rule, when a witness testifies, the cross examination of that witness is limited to the subject matter of the direct examination, and it may be necessary at times for one side or the other to call a witness that the other side has called and question them on some matter that was not brought out the first time the witness was on the stand.

I just offer that as an explanation in case you had any question in your mind relating to it should some witnesses that have already testified be recalled.

You may proceed.

MR. TAIKEFF: Yes, your Honor, before we call our first live witness, we want to introduce certain documents.

I have a stipulation, your Honor, which has been signed by the prosecution and defense. I would like to read it before filing it with the Clerk.

THE COURT: You may.

MR. TAIKEFF: This is a stipulation entered into by Government and defense counsel and reads as follows:

On April 10, 1976, the following vehicles were in a locked enclosure adjacent to the Bureau of Indian Affairs' jail in Pine Ridge, South Dakota:

1. A 1976 Ford, black over green, 1975, South Dakota license, 65-2355.

{3499}

2. A red International Scout, four-wheel drive vehicle, 1974, South Dakota license, 65T116.

3. A white over red Chevrolet van which had no license plate.

Secondly, your Honor, Defendant's Exhibit 87 for identification is a 302 by the FBI which, except for its preamble paragraph, copys verbatim a report of the BIA officer by the name of Ecoffey.

When Ecoffey testified, he provided the information which I have just alluded to.

On the basis of the foundation laid during Mr. Ecoffey's testimony, the defense offers Exhibit 87 for identification.

(Counsel examine document.)

MR. HULTMAN: Well, I will object to its introduction on the same grounds that we have stated numerous times before.

THE COURT: This is a matter, I think, that should have been resolved before the jury was called in.

MR. TAIKEFF: Your Honor, I can resolve it very briefly if your Honor wants to hear us at the side bar.

THE COURT: I will.

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

MR. TAIKEFF: Actually I have no special interest in {3500} the entire report, your Honor; but knowing that if you offer one part of a report, it usually results in the other side asking for the entire report. I wanted to avoid the possible inference in front of the jury that I tried to conceal something.

My interest is in the last paragraph on Page 5 which I show to the Court, and I think your Honor will immediately see the significance of it.

(Court examines document.)

MR. TAlKEFF: That, your Honor, is a verbatim quotation of Ecoffey's report which was incorporated in a 302. The entire 302 is Ecoffey's report except that preamble paragraph.

MR. HULTMAN: Your Honor, my basis for objection, without going into all the detail again, is the very reasons that we have stated here many times.

This is a bald attempt now, with the witness not being here -- the witness was here -- counsel had the document that's in front of them in their possession and have had it for a long time. The question, to which anything that's in that material, could have been asked the witness on that particular occasion; and I object to the introduction of the document for all of the grounds we have indicated before.

MR. TAIKEFF: Your Honor, the witness said that it {3501} was his report of his activities of the day; and I offer that paragraph, or the entire report, as the case may be, to prove the inference.

MR. HULTMAN: I object to either and both, your Honor.

THE COURT: Well, this is something additional to what the witness testified to, is that it?

MR. TAIKEFF: No, it is not something additional. He testified -- well, the content of the report he testified -- wasn't in evidence. He testified that he wrote a report that day of all of his official activities, and then I showed him this document and he said, "Yes, that is my report reproduced on the 302," and he authenticated and answered all the questions concerning the foundation that one would lay for a business record and also said that that was in fact his report, and what he wrote that day was accurate as far as he knew it on that particular day.

Now, I want to introduce that paragraph to show on that day, when he made that report -- it is dated June 26th -- he made an utterance.

THE COURT: You had the opportunity to ask him that.

MR. TAIKEFF: He did say that, he did say that.

THE COURT: That he made this evidence?

MR. TAIKEFF: Of course, he did. The record is clear. {3502} I represent to your Honor he said that. I specifically and purposely asked him those questions, knowing full well I would offer that paragraph in our case.

MR. HULTMAN: He asked about the report, the same objected to 302 business.

My basic objection now is an attempt without the witness being here to put things into the record, that counsel got into the general matter but didn't go to the specific matter.

THE COURT: Hold it down.

MR. HULTMAN: He had the opportunity to ask the question. Now, this is a document on the outside he is trying to introduce as being the evidence.

MR. TAIKEFF: Your Honor, he said he wrote every single word in that report.

THE COURT: You are not offering it to affect his credibility and it is not -- a 302 -- admissible as substantive evidence in the case.

MR. TAIKEFF: I am offering it to show that he wrote those words.

THE COURT: You should have asked him that on the stand.

MR. TAIKEFF: I did ask him. He said "Yes".

THE COURT: You asked the specific words?

MR. TAIKEFF: The entire report.

{3503}

THE COURT: No, I am talking about the specific words.

You are attempting to put this in as evidence.

MR. TAIKEFF: That he wrote those words.

THE COURT: All right. He may have some explanation of it at this time. It would go to --

MR. LOWE: (Interrupting) The Government can call him in.

MR. HULTMAN: There is no duty on me.

MR. TAIKEFF: The shoe is on the other foot. The Government didn't ask the question in response to our laying the foundation at the time.

MR. HULTMAN: I don't have to ask any questions.

MR. TAIKEFF: Of course, you don't. The same rule applies to us. Don't criticize us for not asking questions that are not appropriate.

MR. HULTMAN: Don't say I have to recall him.

THE COURT: I am saying you cannot put his testimony in in this way. The best evidence is his testimony from the witness stand.

MR. TAIKEFF: But all I could ask him I call him to the stand right now is essentially the same thing I have already asked him, "Did you write that paragraph on June 26th?" And he would say, "Yes, I did write that paragraph on June 26th." He has already said that because he said he wrote the entire report, and that includes every single {3504} paragraph.

Now, if the Government has some explanation as to why he wrote those words --

THE COURT: (Interrupting) The offer is denied. You had the opportunity to ask him when he was on the stand.

MR. LOWE: I think that the paragraph should be identified.

THE COURT: It should be identified.

MR. LOWE: It is the last full paragraph on Page 5 which begins, "I went back to where Eastman and Glenn Littlebird was," and then continues.

{3505}

MR. TAIKEFF: Your Honor, I have before me Defendant's Exhibit 181, two page document. Copy has been previously provided to the Government. Mr. Hultman has indicated to me that he will not challenge the authenticity of this certified document. I offer it in evidence.

MR. HULTMAN: The Government has no objection, Your Honor.

You gave me a copy, Counsel?

MR. TAIKEFF: Yes.

THE COURT: No. 181 is received.

MR. TAIKEFF: Your Honor, I also have a stipulation from the Government that the vehicle described in the second page of this Exhibit 181 is the van, the red and white Chevrolet van.

THE COURT: Does the Government concede that stipulation?

MR. HULTMAN: Yes, Your Honor, the Government does, Your Honor.

THE COURT: Very well.

MR. TAIKEFF: Jean Day to the stand.

JEAN DAY,

being first duly sworn on the sacred pipe, testified as follows:

MR. TAIKEFF: May I proceed, Your Honor?

THE COURT: You may proceed.

DIRECT EXAMINATION

BY MR. TAIKEFF

Q Your name is Jean Day?

{3506}

A Yes, it is.

Q Could you move the microphone over a little bit so you don't have to turn your head to the left?

A Okay.

Q Maybe move it over a little further so that you can turn your attention towards the jury.

A Okay.

Q How old are you, Miss Day?

A I'm twenty-six.

Q And where do you live?

A Madison, Wisconsin.

Q Married or single?

A Single.

Q Are you a Native American person?

A Yes, I am.

Q Of which tribe or band?

A Wisconsin Winnebago band.

Q Are you a member of the American Indian Movement?

A Yes, I am.

Q Have you worked in connection with the efforts of American Indian Movement?

A Yes, I have.

Q Do you know the defendant, Leonard Peltier?

A Yes, I do.

Q You see him in the courtroom?

{3507}

A Yes.

Q Where is he sitting?

A He's sitting next to John Lowe.

MR. TAIKEFF: May the record reflect that that fact is true.

Q (By Mr. Taikeff) Now, were you on the Pine Ridge Reservation in the spring of 1975?

A Yes, I was.

Q And during what period were you there?

A From March until June, the end of June or July.

Q And while you were there where were you staying?

A Well, when I first got there I was staying, well, I was staying in the community of Oglala.

Q And specifically where were you staying, if you were staying in more than one place tell us where you stayed.

A Okay. When I first got there I stayed at Ted Lame's home and then --

Q Whose home?

A Ted Lame.

Q L-a-m-e?

A Yeah.

Q All right.

A And then we moved to Jumping Bull's.

Q Would you look over your right shoulder and tell me whether you recognize what that chart is? It's designated Government {3508} Exhibit 71 in evidence.

A Yes. That's the area that we, that I lived in at Jumping Bulls'.

Q And can you give us the dates that you were there, approximate dates if you don't have exact dates.

A We moved there in May I think it was, and I left in June.

Q What part of June?

A Well, I left the 22nd of June.

Q Did you return to the reservation after the 22nd of June?

A Yes, I did.

Q And for, when did you return?

A June 27th.

Q And for how long after that did you stay on the reservation?

A Well, I was coming back and forth quite a bit, you know. But I suppose probably left around the first, you know, the first week in July.

Q What was the latest date that you were on the reservation that you can recall?

A July 5th.

Q Is there any particular event that pinpoints that in your mind?

A Yeah. I stayed there because we were going to bury Joe Stuntz, and so I stayed there.

Q And on what date was that burial?

A J