VOLUME XVIII

Pages 3713-3928

{3713}

FRIDAY MORNING SESSION

April 8, 1977

Pursuant to adjournment as aforesaid, at 9:00 o'clock, a.m., on Friday, April 8, 1977, the Court met, present and presiding as before; and the trial proceeded as follows out of the presence and hearing of the jury, the Defendant being present in person:

THE COURT: Are there any matters to be brought before the Court before the jury comes in?

MR. TAIKEFF: Yes, your Honor, there are. Does the Government have any?

MR. HULTMAN: Go ahead.

MR. TAIKEFF: We wanted to report, as we said we would, on the subpoenaing of Clarence Kelly. We have decided we would not subpoena Clarence Kelly. Therefore, I notify the Government accordingly.

We do have some information I would like to communicate to the Court concerning witnesses for whom we have asked subpoenas, but for whom we do not need them. I don't know that we need necessarily to take the time of Government counsel and the jury to do that.

We would like an opportunity sometime today, when it is convenient to the Court, to report to the Court on that subject as a continuation, so to speak, of yesterday's 5:00 o'clock conference with counsel.

THE COURT: Very well.

{3714}

MR. TAIKEFF: At the same time we have decided what we would ask of the Court in connection with the Myrtle Poor Bear matter. We believe that we are entitled to take that up with the Court on an ex parte basis and make application at this time to do so when we report to the Court on the subject of subpoenas generally.

I would delineate the scope of that by saying that we seek the Court's assistance in finding the witness, and in that regard we think it essentially constitutes an investigative effort of the defense.

We think we are entitled to make our application on that limited subject on an ex parte basis.

THE COURT: And what others?

MR. TAIKEFF: We believe that a subpoena on Special Agent Norman Zigrossi, subpoena duces tecum was served within the past couple of days.

I would ask whether the Government is aware of his presence and whether or not he produced the object which was subpoenaed. If they have no knowledge, we will make other inquiry.

MR. HULTMAN: I didn't even know he was subpoenaed until this very second.

MR. TAIKEFF: I also wish to note that it has been called to my attention that there was an obligation on the {3715} part of the Government to make a more formal response with respect to the subject of electronic surveillance.

I am wonder whether the Government thinks that it has done so, and the reason I am speaking with some uncertainty is that certain papers were exchanged about two weeks ago, and because of other pressures those papers have not been reviewed by me; and so I am sort of calling upon the Government to help me as to whether that was their response in that particular regard.

MR. SIKMA: Yes, your Honor, I think I filed items in that regard and have given the defense a copy of it.

MR. TAIKEFF: I did receive it.

The only other thing I have, your Honor, is in relation to a letter, a copy of which was handed to me within the last 10 minutes. I don't know whether the Government has seen it.

THE COURT: I have instructed the bailiff to hand the Government a copy.

MR. TAIKEFF: I see.

THE COURT: Are you referring to Mr. Eagle?

MR. TAIKEFF: Yes. I am wondering if your Honor would hear briefly from counsel on that subject?

May I just say one or two sentences on it because I think the letter is very misleading and your Honor should know a fact or two.

{3716}

THE COURT: Yes, you may speak on it.

MR. TAIKEFF: It was pursuant to an arrangement made through the Court that counsel, that is to say, Mr. Lowe and myself, had an interview with Mr. Eagle at the jail in Moorhead; and it was supervised by a Marshal, although he was not present in the interview room.

The prospective witness voluntarily spoke with us, and I would say that we spoke at least an hour. It was a very compatible discussion. He was very easy going, answered all of our questions, at the end of which time we told him that we anticipated we would call him as a witness and we left.

There was no acrimony, there was no tension and I don't know what is the basis for the statement or statements made in this letter because as far as I know there was no other contact; but one contact at Mr. Eagle's request, he asked that Mr. Ellison call him on the telephone and assure him -- apparently Mr. Eagle knows Mr. Ellison because Mr. Ellison works and practices in Rapid City which is close to the Reservation; and he wanted Mr. Ellison to assure Mr. Eagle that Mr. Lowe and I were sensitive to his needs as a person, as an incarcerated person, that we were not out to harm him in any way; and so when Mr. Lowe and I left the jail, I got in touch with Mr. Ellison, and I told him of Mr. Eagle's request, and {3717} I said that -- I suggested he call Mr. Eagle and give him whatever assurances Mr. Ellison thought were appropriate under the circumstances because Mr. Ellison has worked with Mr. Lowe and myself in various ways in the past.

I do not know that that telephone conversation occurred. I assume it did because Mr. Ellison generally takes care of the matters that he has to attend to.

As far as I know, those are the only contacts that we have had with Mr. Eagle. I do not believe that there is any sound basis for the statements made in this letter.

MR. HULTMAN: The Government has no knowledge concerning the matters your Honor.

{3718}

THE COURT: Would counsel approach the bench for a moment on the Eagle matter.

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

THE COURT: The bailiff informs me that, I don't know whether he secured this information through defense counsel I or from Jimmy Eagle's grandmother, that apparently one of his primary concerns is that he's about, or he feels that he's eligible for probation now or in the near future and he's concerned as to whether or not his testimony at this trial would in any way jeopardize his opportunity for probation, or would subject him to possible future prosecution on some alleged wrongdoings on which he has not yet been prosecuted. I

MR. HULTMAN: Well, I might state for the record, Your Honor, that first of all the appearance of a witness certainly would not, and I think Mr. Eagle would be the first one to indicate that our relations between counsel and his counsel have been nothing but the most honorable from beginning to end. And I certainly would indicate on the record that that would not be the case.

However, if the testimony were such that I felt that he was not being honest,was not being fair, and so forth then I would likewise on the record indicate that that certainly would indicate any recommendations and so forth that I might have in the future because I think that would be an inappropriate {3719} matter.

But I only say that in response to the Court. The thought never entered my mind until the Court asked the specific inquiry. I would indicate, though, in the general matter that's concerned evidently with this letter, Your Honor, is a problem and it's not Mr. Taikeff certainly that I'm now going to address the remarks to, and I would want that very clear on the record, that one of the problems the Government has had from the very beginning of the events that concern this case, in fact there will be evidence even of certain witnesses that are in this case, maybe yet even testimony that will yet come, that all of the persons who were possible witnesses to the events that were nonGovernmental employees, to-wit: I'm saying all of the Native American witnesses, have all been represented literally from the very beginning by one group which has made it, if not impossible, extremely difficult for the United States at any time to secure information and to secure witnesses.

And even in the course of this trial one attorney has represented four, four witnesses on the record, Mr. Tilsen. The Wounded Knee Offense-Defense Committee has been used quite often, even from the beginning providing a letter to any possible witnesses even though they were not had, not been personally contacted and asked to represent them they were. They on their own provided a letter which certain individuals {3720} then presented to the Government indicating that they were, they refused to talk in any way and that these particular I people or groups are going to represent them, even though it hadn't been solicited by them.

So I just would want to put that on the record at this time because I think the letter then is indicative of that kind of a problem that has arisen quite often in the course. And as I say I certainly want to again relate that this has nothing to do with counsel, and I would make that very clear that Mr. Taikeff has not been a part to what I'm now talking about. It has to do with other individuals and other matters. Maybe Bob might have something further on the specific issue

MR. SIKMA: When the investigation was in its early stages I was assigned as a special assistant in South Dakota, in October of last year after Jimmy Eagle's indictment. And his grandmother and relatives of his obtained a court order at that time requesting that he not be contacted by the Wounded Knee Legal Defense-Offense Committee. And the reason for this was because their belief was that since all the witnesses, all other witnesses were represented by the Wounded Knee Legal Defense-Offense Committee that there was a conflict of interest between many of the witnesses and the defendants themselves. And so the Court entered an order ordering the Wounded Knee Legal Defense-Offense Committee not to contact Jimmy Eagle on the basis of his grandmother's {3721} request, and he also I believe signed the application.

So he was then represented by a man from Birmingham, Alabama. I could not recall his name, but at the time we made an agreement with him with regard to the time of his trial and he made certain representations to us at that time about his theory of the case and indicated that under certain circumstances the charges against him would be dismissed. And although those circumstances have not fully come about because they included an instance if the jury verdict went against the Government in the case of Robideau, Butler and Peltier that the case would be dismissed. And I think under some of the circumstances of things that he indicated to us it depends what his testimony would be, that might possibly be consistent with what he has thus far indicated to us and as far as his involvement or his theory in the case.

THE COURT: You are suggesting that he is still subject to indictment?

MR. TAIKEFF: It has been dismissed I understand.

MR. HULTMAN: Yes, we dismissed the indictment.

MR. SIKMA: But it was not dismissed with prejudice, and I think that there is certainly, we have no idea what his testimony is going to be. If he claims, you know, if he states I was not there, something like this --

MR. TAIKEFF: That is his position by the way.

MR. SIKMA: We were provided with a number of other {3722} inconsistent statements, not by him but other people.

MR. TAIKEFF: He is, as far as I can tell from the interview, I have no reluctance in telling you he is going to claim that he was not there, not at the scene.

MR. SIKMA: Well, so far no witnesses have placed him at the scene.

MR. TAIKEFF: Okay.

MR. SIKMA: Although his own, he has made statements to a number of people that, you know, describing the scene and describing the incident stating that he was there. So, you know, whether he was or not is a factual question.

But I think that under those circumstances there are possible issues where he should be made aware of his rights and should be made aware of the possibilities in order to protect his own interests in this regard.

MR. TAIKEFF: May I ask Your Honor whether the Government would be willing in some written form, letter or memorandum, giving us in detail what are the conditions and understanding with respect to Eagle so that we may evaluate that in determining whether or not we should call him and what position we should take in connection with any matter that may come up at the time we call him.

I assume that Mr. Sikma having revealed as much as he has that it need not certainly remain confidential.

MR. HULTMAN: I think another matter between counsel, {3723} I don't think, Elliot, there's anything in it that in any was is other than basically what counsel has not represented on the record, and I don't think there's anything in any way that could possibly harm you in any way.

If there was I would certainly be the first one to mention it to you. Our position, let me relate a little bit more, the basis as indicated by counsel for his indictment, at least I assume that the grand jury, what they concluded was the basis for a number of statements made by Jimmy Eagle. Now, the truth and veracity of those of course ultimately have to be tested by the normal tests. But on the basis of his own statements to other people was the basis for, and was the proof for his indictment.

Later as indicated here by this record other than his statements basically and maybe one other item, it was determined in our mind that through his counsel's representations to him primarily to draw the conclusion ultimately which we then drew and was the primary basis for that negotiations then.

But I don't think there's any possibility that there's anything of knowledge, what I'm saying, or information that would be other than what literally counsel knows right now. I can't even imagine it would be anything else.

MR. TAIKEFF: Mr. Hultman's first response to Your Honor's inquiry about any difficulties that Mr. Eagle might encounter if he testified concerned the necessity that he {3724} testify truthfully. I hope the Government and the Court realize that we anticipate and expect that he will testify truthfully, specifically that he was not there and in the main that's the bulk of his testimony.

MR. HULTMAN: Well, the reason for my response, Counsel, was the fact as I say that because of a number of earlier statements made by him, which was the basis then of certain evidentiary matters, is why I raised the issue because obviously what he has later said is different from what he had earlier said.

MR. TAIKEFF: I understand. I was reminded by something that Mr. Hultman said to report an additional fact to Your Honor. In the conversation Mr. Lowe and I had he did express concern about his release, but only in this respect: He said that he expected it shortly to be eligible to go to a halfway house as part of his release on parole, and he wanted to make sure that he was not going to held here in an excessive amount of time because they thought they would not make the release of him from here but would have to return him to a regular institution. But we assured him that we would get him on the stand and off the stand in a short time and that's the only concern he expressed to us about his parole status.

THE COURT: Well, that seems to corroborate to some extent at least what the bailiff has reported to me. And apparently his grandmother is here.

{3725}

MR. HULTMAN: Oh, I see.

THE COURT: In the courtroom, and has indicated she wants to represent him. And the bailiff advised her that she would not be permitted to do that.

MR. TAIKEFF: You mean the local rules don't allow Prohogmicha of grandmothers?

THE COURT: I guess I refer to Mr. Nelson as the bailiff, but of course he 's my second law clerk. But he did advise her that she would not be able to do that, to represent him. And I gather that there is one additional request that he has then, or that she has on his behalf, is that he be permitted to talk to his counsel apparently in Birmingham, is that what it is?

MR. TAIKEFF: Somewhere in the South, Atlanta or Birmingham.

MR. HULTMAN: I think he ought to be able to talk with his counsel.

MR. TAIKEFF: That's another point you just reminded me of. We spoke with him about contacting his counsel and asked him whether it was possible for him to make a phone call from the jail. And he said "Yes." And we recommended to him that the next morning, I think we saw him last Wednesday night, I don't remember exactly the day that he called his counsel and discussed the matter. And we assume that he did, but we did encourage him to make contact with his counsel.

{3726}

THE COURT: When do you intend to call him?

MR. TAIKEFF: Today.

THE COURT: I know. When today?

MR. TAIKEFF: If there is no compelling reason to do otherwise, after we finish with Stoldt he would be the next witness. But there's another witness from Oregon who's anxious to go back. But we've run into a problem concerning whether he has all the documentation necessary to testify, and so we may not be able to call him as planned. Your Honor may recall we called his name first before Stoldt, then he disappeared, then we called Stoldt. Now we find out he doesn't have all the documentation. But I think Eagle will be next.

MR. SIKMA: I'm trying to think of the lawyer's name. It seems to me it's Burke.

MR. TAIKEFF: Robert Bryant.

MR. SIKMA: Bryant.

MR. TAIKEFF: And Mr. Ellison tells me that Your Honor's law clerk has been given his telephone number by Mr. Nelson.

THE COURT: Mr. Nelson, would you come up here.

(Mr. Nelson approached the bench.)

THE COURT: Would you contact the marshal and tell him that I would like Mr. Eagle to be able to have an opportunity to visit with this attorney of his, or where is it, Birmingham?

MR. NELSON: Either Alabama or Louisiana.

THE COURT: Apparently you have the telephone number?

{3727}

MR. NELSON: Right.

THE COURT: And I would like him to have that opportunity to visit on the telephone with his counsel before gets called to testify. So why don't you give the message to the marshal at this time and I understand you have the number.

MR. NELSON: Right.

THE COURT: And I'm sure that he can call him FTS I would expect at least.

That completes the bench conference.

MR. TAIKEFF: Thank you, Your Honor.

{3728}

(Whereupon, the following proceedings were had in the courtroom without the hearing and presence of the jury:)

MR. HULTMAN: Your Honor, I have a matter, too, I would like to take up before the jury is called, if I may.

THE COURT: Very well.

MR. HULTMAN: Your Honor, the first item is I'd like to ask Counsel if he is not going to use the agents he doesn't plan to today, I'd like to be able to release them in order they might be able to go home for the weekend, other than those he intends to call. If he does intend to call all of them, I will certainly keep them here today; if he doesn't intend to, I would like to be able to release them so they can catch a plane. Otherwise tonight they would not be able to.

THE COURT: Just a moment before we go into the other thing.

MR. TAIKEFF: Could I have a moment to confer? I might be able to accommodate them immediately.

Your Honor, we believe we have enough witnesses on our own, so to speak, to occupy the day's activities. However there is one possibility and that is for the appearance of Agent Coward. I'm wondering whether the government would be agreeable to releasing all the FBI agents except Coward. As soon as a clear indication,comes we don't need Coward or don't have to have him today, we'd be happy to release him as {3729} well for the day.

MR. HULTMAN: You want then the balance of them back for Monday?

MR. TAIKEFF: Yes. They will all testify.

MR. HULTMAN: Thank you.

The other item, Your Honor, I had this morning filed, and I don't know whether Counsel has the filing yet, and I don't raise at this time to necessarily argue it but I raise it because procedurally again I understand that one of the names given to me, and I think by Counsel even yesterday for a moment was even going to be called yesterday and may well be today is a gentleman by the name of Vine Deloria. I wanted to raise it because I do have a motion which I have filed. I think it's very self-explanatory that it is the position of the government and will be that this witness pursuant to that motion has no testimony which would meet the test specifically in terms of the two rules, 17(b), 12.2(b) that I have certified and I don't mean to argue the motion, I'm not about to at this time, but at least I wanted to put both the defense and the Court on notice that that is the position of the government and that maybe there ought to be just something argued ultimately prior to the time he does take the stand.

MR. TAIKEFF: I only at this time am able to respond very generally. I haven't seen the government's motion paper. I would like the government to be aware of the fact that we {3730} understand the position they take, particularly with respect to the so-called massacre psychology. We have no intention of offering any testimony along those lines. We are carefully at this very moment going over the potential testimony of Mr. Deloria and I trust that the decision to put him on will only be made with respect to those items for which there has been some indication that the Court will allow the testimony, and I don't know that it will be necessary to argue the motion. But in any event, we will be prepared both with respect to his testimony and to answer the motions sometime later today.

THE COURT: Very well.

MR. HULTMAN: That's all I have.

MR. TAIKEFF: I do have a few other witnesses' names, if the government would like to have them now.

MR. HULTMAN: Fine.

MR. TAIKEFF: We have added to the list Stanley Doremus, D-o-r-e-m-u-s, Della Starr, S-t-a-r-r. I think yesterday I gave the government the name Jim James, am I correct about that?

MR. HULTMAN: Right. Right.

MR. TAIKEFF: Then Jim Hall, Wayne Curry, C-u-r-r-y, Bambi, B-a-m-b-i, Sanchez, S-a-n-c-h-e-z, Kevin McKiernan, M-c-K-i-e-r-n-a-n.

THE COURT: The jury may be brought in.

{3731}

(Whereupon, at 9:35 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:)

MR. TAIKEFF: May I proceed, your Honor?

THE COURT: You may proceed.

MARVIN STOLDT,

having been previously duly sworn, resumed the stand and testified further as follows:

DIRECT EXAMINATION (Cont'd.)

By MR. TAIKEFF:

Q Mr. Stoldt, have you given any thought to the testimony that you gave yesterday since you were in the courtroom?

A Some, yes.

Q And is there any testimony which you gave yesterday which, for any reason, you wish to either change or correct?

A Not to my knowledge, no.

Q Would it be comfortable for you if you moved the microphone a little bit to your right so that your tendency would be to look at the jury as you testify?

A O.k.

Q Thank you. I am going to place before you a document which has been marked Defendant's Exhibit 194 for identification. It is an FBI 302, dated September 11, 1975, based on an interview on September 4, 1975, of you by Special Agent Coward.

A (Examining) Can I go through it?

{3732}

Q Yes. In fact I would like you to do it. I don't want you to read it in precise detail because it will take a long time.

A O.k.

Q However, if I ask you any question and you feel it is necessary for you to read any part or all of that document, please say so and I am sure it will be appropriate for you to do so.

A Fine, I appreciate that.

Q By the way, did you and I speak since you left the courtroom yesterday?

A No.

Q In person or on the telephone?

A No, I never saw you any place.

Q Or anyone from the defense team?

A No.

MR. HULTMAN: May I ask that you inquire as to the Government?

Q (By Mr. Taikeff) Did you speak with anyone from the Government?

A No.

Q O.k.

A (Examining).

Q I notice you are now reading from the second page. I will interrupt you only to ask you two preliminary questions; and I am perfectly willing to let you keep looking.

{3733}

Yesterday you testified that you did not see Agent Coward for several months?

A Yes.

Q After June 26?

A Yes, I think I mentioned two months.

Q Yes. Now, from June 26 to September 4 is approximately two months, a little more than two months?

A Yes.

Q Is there any reason why you would doubt the accuracy of a statement, if such a statement were made that you were interviewed by Coward on September 4, 1975?

A Would you repeat that again, sir?

Q Yes. This report seems to be an interview of you by Coward which occurred on September 4, 1975, which was typed up on September 11, 1975. Considering your testimony of yesterday do you have any reason to believe that it is not accurate, in other words, isn't it a fact that on or about September 4, 1975, Coward interviewed you?

A Yes.

Q And was that the conversation that you talked about when you said you didn't see him or speak with him for two months?

A That's true, what I was getting at.

Q O.k. Now, my second question is, am I correct that between June 26th and September 4 -- we will use the date, September 4 -- you did not speak with him at all whether on the case or any {3734} other reason?

A No.

Q You did not speak with him?

A No, I never saw him again after the 26th of June.

Q But I asked you whether you spoke with him because I am thinking about the thing called the telephone. Did you speak with him in between?

A No.

Q Did you speak with any other agents about the events of June 26?

A No.

Q You are sure about that?

A I am positive.

Q O.k. Now, satisfy yourself to whatever extent is necessary by looking at that report.

A (Examining).

Q By the way, did you read that report in Cedar Rapids when you went to testify at the trial last summer?

A Briefly.

Q And at that time did you note to the Government or to the FBI any objections about any serious mistakes you found in there?

A Not that as I recall.

Q O.k. Please continue reading. Let me know when you are finished, sir.

{3735}

A O.k. (Examining).

(Counsel confer.)

Q (By Mr. Taikeff) What page are you up to, Mr. Stoldt?

A Five.

Q Have you read everything on Pages 1, 2, 3 and 4?

A Yes.

Q Now, am I correct that the top of Page 5 begins with events occurring at approximately 6:00 p.m.?

A Yes.

Q Do you think it is fair for us to stop looking since I am only asking you about something which took place during the afternoon?

A Would you repeat that again, sir.

Q Do you think it would be fair of me to ask you to stop reading the report which has numerous additional pages since you have now read past the part of the activities which we have been talking about?

A That's all right, if you want me to.

Q O.k. Now, sometime that afternoon there was a small fire fight, or at least some firing coming in between an Indian male, a single Indian male and Agent Coward, is that right?

A Yes.

Q Now, did you tell Agent Stoldt in that interview which took place on September 4, 1975 --

A (Interrupting) Would you repeat that again.

{3736}

Q Yes. Did you tell Agent Coward -- if I said Stoldt I stand corrected --

A (Interrupting) O.k.

Q (Continuing) -- in the interview of September 4, 1975, that when he was having that fire fight or came under fire from that single Indian male, you were watching through your binoculars with the zoom lens?

A Yes.

Q You told him that in the interview?

A Yes.

Q Now, when you were in the house from which you saw the people running --

A (Interrupting) Yes.

Q (Continuing) -- why was it necessary for you to use somebody else's zoom binoculars if you had your own zoom binoculars?

A Well, I won't elaborate a whole lot, but I think that was the only pair of binoculars we had and the guys were passing them around the room, you know.

Q Well, I don't know. You have to tell us.

A I just did. I said that was the only pair of binoculars I think that we had, and the other guys were taking turns using them at this point.

Q But you didn't tell Agent Coward that you were using the group's binoculars, you said "my binoculars"?

A Actually they weren't my binoculars. They belonged to the {3737} Government, some of the officers had checked out. They were in my vehicle, as I recall.

Q So what you are saying is that after that episode, you then took those binoculars and returned them or gave them to somebody else?

A Yes. As I recall, they were, you know, like I said, I think that was the only pair of binoculars outside of some rifle scopes, you know, that they were using, a pair of binoculars to glance the area.

Q Now, do you recall how much earlier than the sighting of the people at a distance was this episode where you were using the group's binoculars?

A Would you repeat that statement again?

Q Yes. I will break it down into a few questions.

You just told us that there was an incident where there was a single Indian shooting at Coward apparently, and you watched it through binoculars, right?

A Yes.

Q That occurred at a certain time?

A Yes.

Q What time was that, approximately?

A Oh, approximately, I would say roughly maybe around 1:00 o'clock, 1:30.

Q And then there was a time when you were inside the house when you looked up or looked out to the east, and you saw some {3738} people running?

A Yes.

Q And what time was that, would you say?

A Like I said, nobody was looking at watches. It was hard -- it is hard to tell, you know.

Q Mid-afternoon?

A It could have been, you know.

Q O.k., but there was some time between, at least an hour between that first event and the second event?

A Yes, roughly.

Q Do you remember returning the binoculars to or giving the binoculars to one of the other members of your team?

A There was a lot of excitement going on at this time, and as I recall, somebody took the binoculars from me. I don't recall who it was, but one of the other officers.

Q Then you didn't have them on when you were in the house?

A We were all in the house.

Q You didn't have them around your neck?

A No.

Q And then when you made that sighting, you took the binoculars from a person near you, is that correct?

A Yes.

Q Well then, tell me whether or not in the interview of September 4, 1975, you told Agent Coward that while you were inside the Pumpkin Seed house, you were sitting by the window {3739} which was open, located on the east side of the house, watching the Jumping Bull house for any activity with your binoculars?

A I was?

Q I am asking you whether you ever told that to Agent Coward on or about September 4, 1975?

A It is possible I did, yes.

Q Well, did you lie to him when you told him that?

A Why should I lie to him?

Q I can't answer that question, sir.

The question to you, sir, is: Did you lie to him when you. said that?

A I have no reason to lie to Agent Coward.

Q Well then, let me ask you whether it is true that while you were inside the Pumpkin Seed house, you were sitting by the window which was open, located on the east side of the house, and at that time you were watching the Jumping Bull house for any activity with your binoculars?

A Where are you getting this?

Q Don't look at the document, please. Put the document down Turn it face down, please.

MR. HULTMAN: Well, I object, your Honor, to the procedure counsel is now using. He has established the fact earlier that the man didn't have any --

MR. TAIKEFF: (Interrupting) I would like to go to the side bar so the witness doesn't hear the colloquy.

{3740}

THE COURT: You may.

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

MR. HULTMAN: Your Honor, I object to the procedure on the grounds that he is trying to entrap the witness when he has established first he didn't have any independent recollection of these events.

The only basis on which he can recall is one by specifically looking at the document. He has now let him look at the document, but when it comes about to a specific and the man in effect wants to renew his memory, counsel is depriving him of his opportunity.

I would say that is an unfair method in procedure and use in examining the witness.

MR. TAIKEFF: I am going to let him refresh his recollection, but first I want him to exhaust his memory. I have no intention of preventing him from looking at the document. I want to first have testify as to his independent recollection. Then he may refresh his recollection after he has exhausted his memory.

MR. HULTMAN: I am going to object to that. This matter was gone into in great detail. The man did establish what his independent recollection was. Now, we are back, after showing him the document, we are back to a series of more questions that concern themselves only {3741} with binoculars; and that's the reason for my objection, alone, that it is repetitious, but two, that with the procedure that is being used, he ought to be --

THE COURT: (Interrupting) I am a little uncertain as to what defense counsel is attempting to do here. This your own witness. What are you doing?

MR. TAIKEFF: I am impeaching him, your Honor. I am now --

THE COURT: (Interrupting) Impeaching him for what?

MR. TAIKEFF: His earlier statement.

THE COURT: Earlier statement where?

MR. TAIKEFF: He made a statement yesterday concerning the events of June 26. On September 4, 1975, he made another statement concerning the matter.

THE COURT: You are attempting to impeach Coward, it seems to me.

MR. TAIKEFF: No, I am not. I am impeaching his statement made yesterday concerning what occurred on June 26th, and I am doing that with a subsequent statement he made which is inconsistent.

THE COURT: Well, he will be permitted to use the document.

MR. TAIKEFF: I will let him use the document, but I want to ask him questions to determine what his independent recollection is.

{3742}

THE COURT: You did that yesterday.

MR. TAIKEFF: No. His independent recollection concerning September 4. I am not on the events of June 26. I am on the events of September 4.

THE COURT: His independent recollection as to September 4 is totally irrelevant.

MR. TAIKEFF: As to what he said on September 4. I want to establish what his statements were on September 4 because I am trying to authenticate his statements. Now, he didn't write the document.

Your Honor has ruled consistently that the person who is not the author of a document cannot be responsible for what is in the document.

THE COURT: That's right.

MR. TAIKEFF: So I am asking him what he did and what he did not say to the agent. If at a point he needs the document to attempt to refresh his recollection, that, of course, is not objectionable, but in the meantime he cannot now rely upon the document as if it is authentic, inconsistently with your Honor's ruling that he is not responsible in any way for what is in the document.

I want to know his independent recollection as of September 4 before he uses the document.

THE COURT: It seems that you are following the procedure that is going to result in total confusion as {3743} far as this witness is concerned, because first, you show him the document -- first you have him testify yesterday without a document. Then you show him a document.

Now, under the pressure of being on the witness stand, you start taking the document away from him and asking him for his independent recollection.

MR. TAIKEFF: Of what he said, not of the events, only what he said on September 4th to authenticate the contents of the document. Otherwise the document -- otherwise, don't you see what happens, your Honor, when he gets off the stand, I am in the following problem position: He didn't write the document so he cannot be responsible for what it says until he certifies to it, and if I put the Agent Coward on concerning this subject, Coward can say what we expect him to say, he wrote only what the person said.

If I don't get from him what he purportedly said, however he gives that to me -- independent recollection or refreshed recollection or a combination of the two, then when I get Coward up there, Coward merely says, "Look, that's what the guy said, I wrote down what the guy said. I can't explain why he told me that."

I have lost the opportunity to find out why he said what he purportedly said. I have to take these things in that particular sequence.

{3744}

THE COURT: Well, proceed, but I am going to --

MR. TAIKEFF: (Interrupting) I am not going to be unfair to the witness. I only want him to exhaust his independent recollection, and then he can use the document to whatever extent he needs.

MR. HULTMAN: Your Honor, again I object. This is irrelevant.

The issue is, first, it has been established by counsel and very carefully, as to what his posture of remembrance was. He went in detail as to the extent he could yesterday.

Secondly, now counsel gave him a document, let him read part of it and then it was taken away from him, and is now asking him in effect, "What is it that you said to Mr, Coward?" -- not "what you remember"; and I say one simple question would resolve that issue very quickly. If I were given an opportunity just to voir dire that with one question really --

THE COURT: (Interrupting) What is the question?

MR. HULTMAN: That question is: If you read this document on any given item, is this what you recall saying to Agent Coward at the time you gave the interview?

MR. TAIKEFF: He has actually said "yes" to that.

MR. HULTMAN: That's what I am saying. That's the reason for my objection.

{3745}

MR. TAIKEFF: I am now specifically making inquiry of him as to certain very relevant isolated items, to make sure that there was no question about his earlier general testimony after reading five pages. I am entitled to get that from him.

MR. HULTMAN: Again I say it is on the basis of irrelevancy, the ultimate issue of fact is: What did he see and what did he observe?

MR. TAIKEFF: We are past that. We are talking about a subsequent statement.

MR. HULTMAN: You are seeking to impeach him.

MR. TAIKEFF: I don't deny that.

MR. HULTMAN: It is an improper way.

MR. TAIKEFF: I think the Federal Rules of Evidence say that I can do that.

THE COURT: You can impeach him by that statement?

MR. TAIKEFF: Right. I don't have to hand it to him so we can read it and refresh his recollection. I don't have to sit there and let him testify with it in his hand as if it were a script.

MR. HULTMAN: So far, your Honor, there has been no showing in any response to any of the questions that counsel has asked there has been any impeachment. His response is --

MR. TAIKEFF: (Interrupting) Fine. What are you {3746} worrying about? Relax.

MR. HULTMAN: It is unfair.

MR. TAIKEFF: I am not going to treat him unfairly, I I assure you.

MR. HULTMAN: I know where we are going, it is obvious.

THE COURT: Proceed.

{3747}

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

THE WITNESS: Is this water for me?

MR. TAIKEFF: I think possession is nine-tenths of the law.

Q (By Mr. Taikeff) My question to you, sir, was: Whether in fact the statement you made on September 4th concerning your own activities that you're in the house, looking at the open window watching the Jumping Bull house for activity with your binoculars was true.

A Yes.

Q Is it a fact that on September 4, 1975 you told Agent Coward that a short time later, at approximately 4:30 to 5:00 P.M. you observed four individuals running from the rear of Harry Jumping Bull's house towards an open plowed field?

A Yes.

Q How much time later was that after the time you were just sitting at the window looking out with your binoculars?

A Well, we moved from window to window, you know. It was, it's hard to say, you know. I couldn't give you a specific time.

Q On that day, June 26, 1975 were you assigned to a BIA S.W.A.T. team?

A Yes, I was.

Q Were you out on maneuvers that day?

{3748}

A Yes, I was.

Q What kind of weapons were you and your colleagues carrying?

A We were carrying Smith and Wesson .38's.

Q Sidearms?

A We were carrying AR-15 rifles and I think somebody was equipped with an M-79.

Q What's an "M-79"?

A It's sort of like a grenade launcher, you know, where you can launch smoke with it. It's canister rounds.

Q How BIA people were out on maneuvers that day with you?

A Well, there was two teams of us. It was only S.W.A.T. team and then we had, we were the assaulting team and it was sort of a mock battle we were having that day.

I don't recall how many were on the other side, or who was on the other side, but I do recall the S.W.A.T team that I was with.

Q And what kind of weapons was the other team equipped with?

A Basically the same as we had. I would say AR-15's .38's with blanks.

Q And --

MR. HULTMAN: Would the reporter read the last answer back? I didn't hear it.

MR. TAIKEFF: And .38's with blanks.

MR. HULTMAN: With blanks?

MR. TAIKEFF: And .38's with blanks.

{3749}

MR. HULTMAN: Okay.

Q (By Mr. Taikeff) And did the members of those two groups that were out on maneuvers all come to this area and participate in the events around Jumping Bull Hall?

A No. We were at this time approximately when this thing was going down we had come in from lunch, we had finished our maneuvers, when I received a call on my radio to assist an officer.

Q Were you the only one of those two groups to respond?

A As I recall, yes. Since that was my district.

Q Do you have any quarrel with the fact that the sighting took place between 4:30 and 5:00 o'clock?

A How was that again? Would you repeat that?

MR. HULTMAN: Well, now, Your Honor, again I don't have any objection if counsel will read what the entire sentence said. It said "approximately between 4:30 and 5:00" and that is different than between 4:30 and 5:00.

MR. TAIKEFF: All right. I'll amend my question accordingly.

Q (By Mr. Taikeff) Do you have an quarrel with the statement that the sighting you made of seeing the people running across occurred at approximately 4:30 to 5:00 P.M. on that day?

A It's hard to say. Like I said, you know, nobody was watching their watches, you know. Nobody was checking time or taking statements or anything like that, you know. It's hard to say.

{3750}

Q Well, when you spoke with Agent Coward on September 4, 1975 how did it happen that you told him that it occurred approximately between 4:30 and 5:00 o'clock?

A Maybe I told him because that's what I thought the time was, you know. Maybe it wasn't. Like I said nobody was looking at watches, you know.

Q Well, that's what I'm asking you, if nobody was looking at watches how did you happen to state a specific time within approximately thirty minutes?

A It may have been, you know, that's what I thought the time elapse had been, you know. It could have been more, it could have been less.

Q Now, is it accurate to say that when you -- when did you first make any mention of sighting Jimmy Eagle?

A I don't recall.

Q Well, yesterday I showed you Government's Exhibit 195 which is a 302 of Agent Coward, one page, date of transcription 6/28. You read that yesterday, did you not?

A I glanced through it, yes.

Q Now, might it be possible that you made that statement to him on June 26th and that there's a typographical error there when it says that you were interviewed June 28th?

A No. I don't, I think that's highly impossible because of the fact that we were involved in so much. It wasn't time for anybody to sit down and give statements, you know.

{3751}

We'd, we were out chasing these four males around the hills, you know. There was no time for anybody, you know, to make any kind of statements or anything.

Q Well, how about the possibility that instead of making a formal statement, in a car ride later that day or perhaps on your way home with Agent Coward you may have just casually mentioned to him the sighting of a person who appeared to you to be Jimmy Eagle?

A I think that's highly improbable also because I and Coward did split up, you know.

I don't recall seeing, well, recall seeing him, but we were all walking on foot up this big hill, you know, and he was quite a ways from me.

Q Well, can you offer, if you have any basis to do so, any information about how Defendant's Exhibit 195 came into existence?

A Maybe he overheard somebody else say that and thought it was me.

I mean, there was a lot of excitement going on.

A guy could make a mistake.

Q But it does so that, it does say your name, doesn't it?

A Yes. It does say my name.

Q It says your name four different times, doesn't it? Five different times.

A It's possible it says that, my name five different times.

{3752}

Q Well, this document does say your name five different times?

A Do you want me to count them?

Q Yes just so we don't have any dispute there.

A All right. Okay. Correct, it says it five different times.

Q Now, is it accurate or fair to say that your sighting of Jimmy Eagle on the 26th of June, 1975 was not a positive identification? That the person appeared to be Jimmy Eagle to you?

A It's possible to say it appeared, yes.

Q Well, didn't you tell us yesterday that it was not a positive identification? Isn't that your phrase I'm using?

A Would you be -- restate that again. I can't put your meaning between appear and a positive.

Q Did you tell us yesterday in words or in substance that your identification was not a positive identification?

A Yes. I probably said that yesterday, yes.

Q Okay. Now, what does that mean in other words that it wasn't a positive identification?

A It could mean that it wasn't exactly certain, you know. Maybe characteristic squat or run or something, you know.

Q Could it also mean that the person appeared to be Jimmy Eagle?

A If you want to put it that way, yes. It's possible.

{3753}

Q That would be inaccurate,would it, if I chose to describe it that way?

A I don't think so, no.

Q Okay. Now, when you spoke with Agent Coward on September 4, 1975 you told him you thought you recognized two people that afternoon?

A Yes, yes.

Q And the second person you mentioned was Leonard Peltier; isn't that right?

A Yes. I was pretty sure it was Leonard.

Q When you say "I was pretty sure it was Leonard" are you saying that on June 26, 1975 you were pretty sure it was Leonard, or are you saying that you are pretty sure that you said that the second person was Leonard when you were interviewed on September 4th?

A Would you restate that. You are confusing me.

Q All right on June 26, 1975 were you pretty sure it was Leonard?

A On June 26th, 1975, yes I was pretty sure it was Leonard.

Q And when you told, when you spoke with Agent Coward on September 4, 1975 did you tell him you were pretty sure it was Leonard Peltier?

A Yes. I had two months to think about it, you know.

Q Didn't you tell Agent Coward on September 4th that you thought that the other person that you saw was Leonard Peltier?

{3754}

A Come again. You know, would you restate that again.

Q On September 4, 1975 when you spoke with Agent Coward didn't you say, concerning your sighting of Leonard Peltier, that you thought that the person you saw up on the hill was Leonard Peltier?

A Up on the hill? I don't recall him mentioning the hill.

Q Well, forgetting the hill for the moment, did you say that the person you saw you thought was Leonard Peltier?

A It's possible I said that.

Q Did you in your interview with Agent Coward make any mention at all about the use, either of the telescopic sight or binoculars when you were looking at these individuals?

A I think I mentioned, as I recall, I was using binoculars at this time, a scope and binoculars.

I had borrowed the scope from somebody, glanced through it; and it wasn't sufficient, you know, to give me magnification. I grabbed my binoculars as you recalled them earlier.

Q Now, when you read the first five pages of the report, those five pages included your discussion with Coward about the sighting, right?

A Yes.

Q When you read them earlier this morning?

A Yes.

Q Did you notice anything in those five pages about your using {3755} either a telescopic sight or binoculars to make the sighting?

A I think I did mention it, yes.

Q No, that's not my question, sir.

My question is: This morning when you read the first five pages of this report did you notice anywhere in that report concerning the subject of the sightings any mention of a statement by you that you used either a telescopic sight or binoculars to make the sighting?

MR. HULTMAN: Well, Your Honor, I object to this again now as an attempt on the part of counsel to -- after showing a document taken away from the witness.

MR. TAIKEFF: I'll give it back, I'll give it back.

MR. HULTMAN: If counsel wants to indicate whether it does or doesn't the Government will have no objection.

MR. TAIKEFF: All right. I would indicate that it does not say one word about it. Does the Government concede that fact?

MR. HULTMAN: I haven't read it with that great a detail. If counsel indicates that, I accept it, I accept it, I accept it.

MR. TAIKEFF: I represent that that is true.

MR. HULTMAN: I have no reason to disbelieve that.

Q (By Mr. Taikeff) Is it then fair to say that as to your identification of Jimmy Eagle it was not a positive identification

MR. HULTMAN: Your Honor, I object. This question {3756} has been asked and answered. It's repetitious.

MR. TAIKEFF: That's foundation for the next question.

MR. HULTMAN: It's been asked and answered about four times now

THE COURT: Sustained. It's been answered.

MR. TAIKEFF: All right.

Q (By Mr. Taikeff) Did you tell Agent Coward on September 4, 1975 that your identification of Jimmy Eagle was positive?

MR. HULTMAN: Again, Your Honor --

MR. TAIKEFF: That's a separate question, Your Honor. Subsequent statement.

MR. HULTMAN: And I again rise and raise the same objection, Your Honor.

THE COURT: Sustained.

MR. HULTMAN: That I previously raised.

MR. TAIKEFF: Your Honor, may I come to the sidebar, please.

THE COURT: You may.

{3757}

MR. TAIKEFF: Your Honor, may I come to the sidebar.

THE COURT: You may.

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

THE COURT: For the life of me I do not understand what you're trying to get out of this witness.

MR. TAIKEFF: I'm afraid, Your Honor --

THE COURT: Just a moment. He's your witness. You appear to be getting him up to make certain statements and then you're trying to knock him down on those statements and apparently what you're trying to drive at is trying to through this witness impeach the credibility of Coward.

MR. TAIKEFF: No. I am impeaching his citing of which we have heard testimony. That's what I'm doing. I'm impeaching his observations with his own statements. Even he says that he was positive that Jimmy Eagle was the ind