VOLUME XIX

Pages 3929-4196

{3929}

MONDAY MORNING SESSION

April 11, 1977

Whereupon, the following proceedings were had and entered of record on Monday morning, April 11, 1977 at 9:05 o'clock, A.M., without the jury being present and the defendant being present in person:

THE COURT: I believe on Friday I had reserved ruling on, what's the number of that exhibit, Mr. Hanson, 197?

THE CLERK: 194, Your Honor.

THE COURT: 194. There were -- do you have it in front of you?

(Clerk handing Judge Exhibit 194.)

THE COURT: The part of 194 which was offered was the beginning of a sentence on the bottom of page 3, and then the first three paragraphs on page 4 excluding the last paragraph. There are only four paragraphs that appear on page 4. That portion of Exhibit 194 is admitted.

Are there any other matters that should be taken up before the jury is brought in?

MR. TAIKEFF: Yes, Your Honor.

THE COURT: You may proceed.

MR. TAIKEFF: I'm wondering if it would be possible for counsel for the defense to approach to advise Your Honor of certain matters concerning witnesses and their whereabouts.

THE COURT: You may.

{3930}

MR. TAIKEFF: Because I believe some course of action may be appropriate after the information is given.

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

MR. TAIKEFF: Your Honor, yesterday I interviewed the father of Myrtle Poor Bear and one of her sisters, both of whom arrived sometime within the twelve hours before I interviewed them. They both independently informed me that Myrtle Poor Bear has been living at home in Allen, South Dakota and the saw her at home just before they came up here.

I am reporting that to Your Honor in the event that she is produced here today because it seems to me that it was sometime in the latter part of last week that the marshals office was notified by Your Honor that she might be arrested as a material witness.

THE COURT: I think that was Friday.

MR. TAIKEFF: Yes. And I would imagine that under the circumstances they should have taken immediate action of one kind or another. And by Sunday she apparently was still home. That makes a total of at least three people and possibly four people who have advised us that they have seen her in and around Allen, South Dakota throughout the preceding week.

Now, in addition to Your Honor eventually notifying the marshall service that she was to be arrested as a material witness there was also the obligation of the marshall service, {3931} as I understood it, to find her or stay in touch with her because she had earlier been declared a material witness. And Mr. Warren personally advised me that they had lost contact with her as of a week ago yesterday. That would be the 2nd, as of the 2nd of April I don't know what steps they took to make sure that they knew where she was or that she stayed in touch with her, and I don't know that any inquiry should be made at this particular time. But I'm telling Your Honor what I know and what I've experienced in the past week as soon as I learn things on this subject in the event that there may be the necessity to ask Your Honor for a hearing. I'm only doing this to protect our position and to make an accurate and complete record.

THE COURT: I am not sure what authority you are referring to when you say there is an obligation of the marshal service to remain in touch with a material witness.

MR. TAIKEFF: Well, she was supposed to keep in telephonic contact with the marshal service. And sometime early last week I went to see Mr. Warren to make inquiry about her appearance here because we were getting close to the time when we thought we would call her as a witness. And he informed me that the last contact they had had with her was on the preceding Sunday, which would be April 2nd.

THE COURT: This is a requirement on her part.

MR. TAIKEFF: This is a requirement on her part.

{3932}

THE COURT: Right.

MR. LOWE: You would think as a term of her being released on her personal recognizance.

THE COURT: That's right. I'm not sure that that imposes any additional duties on the marshal service except to receive a telephone call.

MR. TAIKEFF: It may be that that is true

THE COURT: The telephone communication.

MR. TAIKEFF: The telephone communication. I wasn't necessarily pressing the point.

THE COURT: The reason I raise the question is because I am not just aware of anything in the statute that would require the marshals to monitor the whereabouts of a material witness. It seems to me that's the purpose of the bond.

MR. TAIKEFF: Well, in any event there was some conversation with Mr. Warren in the course of that week from which I received information of the following kind: That she's not anywhere to be found. So apparently that's a reflection of some effort on the part of the marshal service to locate her. I say apparently because I didn't make any specific inquiry.

THE COURT: I don't know.

MR. TAIKEFF: And she's apparently been in Allen, South Dakota all this time.

In any event I would imagine that she should be here {3933} today under the circumstances because they had a warrant for her arrest as of Friday. I don't know what time of the day that occurred, but even if it occurred towards the end of the day they could have arrested her over the weekend and brought her here. And I gather that she's not here.

THE COURT: When did the warrant issue for --

THE CLERK: Friday, Your Honor.

THE COURT: Pardon?

MR. HANSON: It's dated April 8th.

THE COURT: Was it Friday afternoon? My recollection is that it was Friday afternoon.

MR. TAIKEFF: I seem to recall the same thing, Your Honor.

MR. ENGELSTEIN: I got the information about 2:30.

MR. TAIKEFF: The other thing is that it was necessary for three witnesses to be produced with writs. Those witnesses are Ricky Little Boy, Marvin Bragg and Marion High Bull. I'm wondering if Mr. Ellison can inform us if they're within a reasonably close distance.

MR. ELLISON; Your Honor, I was informed this morning that Mr. Bragg and Mr. High Bull are in county facilities somewhere in this area. I don't know exactly where. And my understanding is that the marshal service can have both of these gentlemen present in Fargo by the latter part of the day. And we have instructed the marshals to bring them here {3934} as quickly as possible.

And I'm not quite, if they're here at the end of the day, it may seriously interfere with our expected order of call of witnesses and we would request that they be brought here as quickly as possible.

I don't know how far from Fargo they are. I was just told they were in county facilities in this area.

THE COURT: Well, have you made inquiry of the marshals?

MR. ELLISON: Not further inquiry than that because court was starting. I can do that at this time.

THE COURT: Very well.

MR. TAIKEFF: I have one other point that I want to advise Your Honor of. We expected the sister and the father of Myrtle Poor Bear to arrive at 2:45 on Saturday. These are arrangements which had been made with them by the telephone and we told them that they would be picked up at the airport and taken to their hotel. And exactly that time on Saturday I received a collect telephone call from Elaine Poor Bear, the sister, the sister who actually finally showed up on Sunday. And she said I'm calling to let you know that I'm not on my way to Fargo but that I'm still in South Dakota.

And I asked her why, and I will tell Your Honor what she said, not suggesting that she is accurate about it, only what she told me. She said that the FBI came to her house.

I then questioned her whether it could have been {3935} deputy United States marshals and she said, "Well, it could have been." I'm not sure whether they were FBI or marshals, but she seemed to understand the difference between the two. She said that he came to her house and told her and her father that it was not necessary for them to come to Fargo prior to Monday; that they were subpoenaed and that they didn't have to come over the weekend.

I told her that that was incorrect. I didn't know who these people were who spoke with her. I don't know what the basis of their inquiry was but that we requested her appearance before the time of giving testimony because we want an opportunity to interview in some detail. And she then promised that they would make an effort to get there the following day, Sunday. And indeed appeared the following day.

Now, I know nothing of the incident which occurred which was the basis of her collect phone call and statement. I am merely reporting to Your Honor and placing upon the record the experience I had at 2:45 P.M. on Saturday afternoon.

THE COURT: What happened to those two investigators that were required for the work on the reservation? I would assume that they should have completed the interview down there.

THE TAIKEFF: The existence of Elaine Poor Bear as a potential witness was not known to us until Jeanette Tallman came here and had her interview with me, not interview for the {3936} purpose of getting the information, but interview for the purpose of calming her down.

Your Honor may recall that when we were in chambers with Ms. Tallman I assured her that she should relax because the information she had given me produced a new potential witness; and that this new potential witness might be much more valuable than she on the very same subject. So I didn't know about Elaine Poor Bear's knowledge until either Thursday or Friday of last week.

THE COURT: Very well.

MR. ELLISON: Your Honor, I have some further information concerning Mr. High Bull and Mr. Bragg. I just spoke to Mr. Warren and he informs me that Mr. High Bull will be here by 11:30, and that Mr. Bragg will be here by 3:30. And that the reason for the two different times is a shortage of personal as far as U.S. marshal service is concerned. So that the same individuals will have to get Mr. High Bull and then go and get Mr. Bragg.

MR. TAIKEFF: Just on the suggestion of Mr. Hanson, a word to Your Honor to explain why we started a little later today. I received a call from Mr. Hanson that a witness by the name of Gregory Dewey Clifford had shown up pursuant to a subpoena and that he appeared to be very upset. And Mr. Hanson thought that I should confer with him for a moment and calm him down. And I went into Mr. Hanson's office and spent a few {3937} minutes with him assuring him that he should be calm and that he would be called as a witness sometime later in the day. just wanted that explanation because oŁ the late start.

THE COURT: Very well.

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

{3938}

THE COURT: Is Counsel ready for the jury?

MR. TAIKEFF: Yes.

MR. HULTMAN: Yes, Your Honor.

MR. TAIKEFF: Your Honor, there are just two matters that I'd like to take up at this particular time concerning the appearance of the witnesses. I don't know whether it's clear to the government, I would like to make clear that the Special Agents Wood and Price who were on the tentative list should now be considered on the actual witness list and their appearance is required.

In connection with our assumption of the obligation of notifying the government as to our witnesses, we now have what we believe to be the final list of witnesses and with Your Honor's permission I would like to advise the government in open court on the record.

THE COURT: You may.

MR. TAIKEFF: Other than the special agents, we will call, and this is in approximate order of call which is a fact the government asked us to supply them with, William Muldrow, M-u-l-d-r-o-w, Marion High Bull, Marvin Bragg, Gregory Dewey Clifford, Robert Ecoffey, Marvin Amiotte, A-m-i-o-t-t-e, Florence Fire Thunder, Jeanette Tallman, Madona Slow Bear, Rickey Little Boy, Theodore Poor Bear, Elaine Poor Bear, Myrtle Poor Bear and Norman Brown.

Oh, yes. As mentioned last week, a Subpoena was {3939} served upon Special Agent Zigrossi of the FBI for his appearance and for him to bring a certain object with him, and as far as we know that the Subpoena was served and we have not heard from him. As far as we know he's not in Fargo. Perhaps the government would be in a position to make some inquiry about that.

MR. HULTMAN: I don't know, Counsel. But I shall. The list you've just given me, it might be Friday before you got to him from the list I see now, about 30 witnesses. Would you kind of give me some indication as to which order, which group is going to come first, like starting with the first witness this morning.

MR. TAIKEFF: I believe, Your Honor, I made the statement in such a way as to indicate the order in which the witnesses will be called from right now until we rest our case.

MR. HULTMAN: You didn't mention the eight agents that we've talked about. Are they coming first or at the end?

MR. TAIKEFF: Neither. They come where they fit in the logical sequence.

MR. HULTMAN: Who is going to be the first witness today, Counsel? Are you willing to indicate that at least?

MR. TAIKEFF: James Eagle who's name was previously given to you.

MR. HULTMAN: Just trying to get some kind of order here.

{3940}

THE COURT: The jury may be brought in.

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

MR. TAIKEFF: Your Honor, the defense recalls James Eagle.

THE COURT: Very well.

MR. HULTMAN: Your Honor, might we approach the bench.

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

MR. HULTMAN: My reason for approaching the bench is in lieu of my comments and observations when he was called. I don't want to be placed in a posture again today not knowing what's liable or could possibly follow. My only question, Your Honor, and I believe Counsel, I believe, evidently is here that represents Mr. Eagle.

MR. RODENBURG: Yes. I'm here.

MR. HULTMAN: I don't want to be placed, if a question were asked and he takes the Fifth Amendment, if Counsel knows that ahead of time it's not something that I think would be very inappropriate and place the government in a posture that I think we ought to know about at least now.

MR. TAIKEFF: I think Mr. Hultman is entitled to know whether Counsel for the defense have any expectations that he will take the Fifth. I also would hope that Mr. Hultman would {3941} also realize that we're uninformed of such a possibility. I would have placed it upon the record for benefit of Counsel for the government. But to eliminate any ambiguity, there is no expectation whatsoever that this witness will take the Fifth Amendment either on direct or cross.

I intend to make inquiry of him in two areas, as I think I've already indicated at an earlier bench conference; namely, was he there on June 26th. I expect his answer to be no. I will elicit some detail from him as to where he claims he was. I then expect to make inquiry of him concerning whether or not he made any statements to certain individuals or in the presence of certain individuals that would constitute either an admission or a -- I expect he will say no and he will explain the very special instructions he was under concerning that particular subject and that will be the extent of his testimony.

MR. HULTMAN: On the basis of that, Your Honor, I would take the posture at this time that the testimony beyond the fact he was not there would be irrelevant because now the next, and it's going to be done, it's obvious from the witness list.

MR. HULTMAN (TAIKEFF): It would be irrelevant when he was spotted through a telescopic sight.

MR. HULTMAN: Wait until I get done.

I said beyond that issue that it's obvious to me from {3942} the list of witnesses you just read off that Counsel is then going to bring four people who have not been a part, or their testimony in any way been a subject of this trial who then make statements to the effect that this witness has made statements to them and I say that is totally collateral and has no relevancy of any kind, especially after Counsel has established that the witness is not there. From that point on we then get to hearsay pure and simple and collateral matters that have no relevancy.

MR. TAIKEFF: I think you should wait until the appropriate foundation.

MR. HULTMAN: I know, Counsel -- off the record you and I both know. You don't have to say on the record. I'm saying that's the only purpose you would call Marvin Bragg. That's the only purpose you would call three other witnesses on that list, because that's the only thing they have ever said or done or had any relevancy in anything to do with the matters here in this courtroom. You don't need to tip your hat. I'm stating on the record. I'm making the challenge at this particular time.

MR. TAIKEFF: I think it's premature, Your Honor. I think Mr. Hultman without intending to do so --

MR. HULTMAN: That's the only purpose for which this witness, beyond the fact that he's not there. The second part of the testimony that --

{3943}

THE COURT: At this point you may proceed and we'll see what develops.

MR. HULTMAN: Your Honor, could I at least be placed in the posture here, we don't, like I got with the witness from Denver, that the question is asked and the answers come in because a witness -- I'm not saying a witness is being coached but the witness volunteers matters that then place me in the posture of coming back and then we have to erase those particular matters. What I'm saying, I think if we're going to get into those matters I've just now indicated with a future witness that the government ought to have an opportunity to make a showing and its objection prior to the question coming in and answer being given.

THE COURT: I will simply lay down this requirement, that the question to the witness will not be in the form of an assertion of fact that is not a part of the evidence in the case.

MR. TAIKEFF: I would hope that with respect to the testimony of Bambi Sanchez that Your Honor is not suggesting that the question put to the witness was anything but the most nonleading question possible.

THE COURT: I don't remember what her testimony was off-hand.

MR. TAIKEFF: I think the question was, "What happened," and she started telling what happened.

{3944}

MR. HULTMAN: That's what I'm getting at.

MR. TAIKEFF: That was certainly no assertion of fact.

THE COURT: I had no reference to any particular witness. I'm simply stating that as far as this witness is concerned.

MR. TAIKEFF: There will be none.

THE COURT: Very well.

{3945}

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

MR. TAIKEFF: May I proceed with this witness, your Honor?

THE COURT: You may.

MR. TAIKEFF: Would your Honor deem it appropriate to advise the witness that the oath he took the other day is applicable at this particular time?

THE COURT: You have heard counsel, Mr. Eagle, state that the oath that you took the other day is applicable at this time, and that is a correct statement. When a person appears in a court proceeding and takes an oath to tell the truth, that oath is applicable throughout the appearance of that witness in that court proceeding.

THE WITNESS: All right.

MR. TAIKEFF: Thank you, your Honor.

Q (By Mr. Taikeff) Mr. Eagle, have you ever been convicted of a crime?

A Yes, I have.

Q And do you know the name of the crime with which you were convicted?

A Assault with a dangerous weapon.

MR. TAIKEFF: May I inquire whether the amplification system is working?

THE CLERK: It is on.

{3946}

Q (By Mr. Taikeff) Would you adjust the microphone so that you can sit back and relax?

You don't have to lean over into it, and try to speak up a little louder, please.

Would you repeat the name of the crime that you were convicted of?

A Assault with a dangerous weapon.

Q Was that in Federal Court?

A Yes, it was.

Q And are you presently in the process of serving that sentence?

A Yes, I am.

Q Is that the only crime you have ever been convicted of?

A Yes, it is.

Q Have you and I ever spoken?

A Yes, on two different occasions.

Q And where was that?

A At the Moorhead County jail.

Q And in the spring of 1975, you were accused of committing a crime, is that correct?

A Yes, I was.

Q In what month was it said you committed that crime?

A In -- well, there is three different crimes I was accused of committing.

Q Let's take them in the order in which the events supposedly {3947} occurred.

What was the first crime it was said you committed, and what was the date that it supposedly took place?

A On May 17th, 1975, I was accused of assault with a dangerous weapon, use of a firearm in the commission of a felony.

Q Is that the case from which your present sentence evolved?

A Yes, it is.

Q Did you go to trial on that case?

A Yes, I did.

Q And you were found guilty of one or more separate crimes?

A Just one. I was found guilty on both of them. I appealed, and they reversed one conviction.

Q Your conviction stood on the assault with a dangerous weapon?

A Yes, it did.

Q Now, were you bailed in connection with that first case?

A Yes, I was.

Q And you were permitted then to remain on the Reservation?

A Yes.

Q Which Reservation was that?

A Pine Ridge Indian Reservation.

Q Is that the place where you have always resided?

A Yes.

Q Look over your right shoulder at the chart which is Government Exhibit 71. Do you recognize the area that is shown {3948} on that chart?

A Yes, I do.

Q What is it?

A It is the area of Oglala.

Q What is it called or how is it known?

A It is the Pine Ridge Indian Reservation.

Q How about that particular area?

A Oglala area.

Q Just called the Oglala area. Any special name?

A Jumping Bull.

Q Jumping Bull, o.k.

Now, getting back to your involvement with the law in the spring of 1975, when were you first taken into custody in that first case, do you recall?

A No, I don't.

Q Was it shortly after the middle of May?

A Yes, it was. I am pretty sure it was.

Q And when did you have to make your second court appearance on that case?

A In July, the 9th.

Q Did you say a particular date in July?

A July, the best of my knowledge I think July 9th. I am not certain.

Q But at some time in the month of July?

A Yes.

{3949}

Q So between the time you were first charged and bailed in July, you didn't have to make any court appearances, is that right?

A I had a preliminary hearing.

Q And then the next court appearance was July?

A Yes.

Q O.k. Now, there was a second case that developed in your life, a second criminal case, is that right?

A Yes, it is.

Q And is that a case charging you and three other people with an incident that occurred on -- you tell us the date, if you remember.

A As I recall it was June 24th.

Q Can you name the other people who were charged in connection with that case?

A Kermit Thunder Hawk, Hubert Horse and Teddy Pourier.

Q Now, were you arrested in connection with the charges in that case?

A Yes, I was.

Q Do you recall the date that you were arrested?

A I am pretty sure it was in July.

THE COURT: You are going to have to speak up.

THE WITNESS: It was in July.

Q (By Mr. Taikeff) Is there any connection between your court appearance on your first case and your arrest in the second {3950} case?

A No, there isn't.

Q Where were you arrested in connection with the second case?

A I voluntarily surrendered.

Q I see. Were you ever tried in that case?

A Yes, I was.

Q And the result?

A I was acquitted on the charges.

Q Now, as far as you know, there was only one other case, criminal case against you?

A Yes, there was.

Q And just tell us the charges in connection with that.

A Murder, first degree murder.

Q The death of whom?

A Two FBI Agents.

Q Tell us whether or not you have ever had a trial.

A No, I didn't.

Q Now, when for the first time did you learn that your name was associated with the death of the FBI Agents on June 26th, 1975?

A It was two days, about two days after the incident happened.

Q And how did you learn that your name was associated with that incident?

{3951}

A It come out over the news, and I just -- I didn't know about it.

Q On June 26th, 1975, were you at the Jumping Bull compound?

A No, I wasn't.

Q What was the closest you came to the center of Government Exhibit 71, which is the residences, on June 26, 1975?

A The closest?

Q The closest any time between the beginning of the day, at 12:01 a.m., meaning just after midnight, all the way through the day until the end of the day at midnight again, the closest you came at any time to those residences in the center of the diagram.

A I would say about 15 miles.

Q Where were you?

A In Pine Ridge, South Dakota.

Q Were you indoors or outdoors?

A Indoors.

Q And did you know at that time that there was a warrant outstanding for you?

A No, I didn't.

Q Specifically where were you on that day? You have told us the town, you have told us you were indoors.

A I was at my grandmother's house.

Q What is her name?

A Gladys Bisenet.

{3952}

Q Now, you went to court -- you believe the date is July 9th, I will refer to it as July 9th from this point on -- with or without a lawyer?

A With a lawyer.

Q And what is that lawyer's name?

A His name is Marvin Amiotte.

{3954}

Q Where does he have his offices?

A He has two offices. One's in Pine Ridge, South Dakota and the other one's in Mission, South Dakota.

Q Now, when for the first time were you arrested and charged with the death of the two agents?

A It was on July 27th. In the early morning.

Q And where were you at that particular time?

A I was in Pennington County Jail.

Q That's --

A In Rapid City

Q That's the local jail in Rapid City, South Dakota?

A Yes, it is.

Q Now, you told us that on your first case you had been bailed?

A Yes.

Q And that you had to make a court appearance on the 9th. Did you show up for that court appearance?

A Yes, I did.

Q Now, what was the reason you were in the Pennington County Jail towards the end of July, 1975?

A That I was charged with the two robberies, robberies of the incident that arose from June 24th.

Q Were you bailed on that case?

A No, I wasn't.

Q Was bail set?

{3955}

A Yes, it was.

Q How much?

A 25,000.

Q Were you able to make the bail?

A No, I wasn't.

Q Is that the reason why you were in custody?

A Yes, it is.

Q Now, did you ever have any conversation with Mr. Amiotte concerning the fact that your name had come up in the presence as a person possibly involved in the death of the FBI agents?

A Yes, it did.

Q What was the nature of that conversation?

MR. HULTMAN: Well, I object to that clearly as being hearsay, Your Honor.

MR. TAIKEFF: Your Honor, I'm not offering it for the truth. I'm offering it to show that the declaration was made.

THE COURT: You may answer the next question. The last question rather.

A Yes. We did talk about it and he said, you know, that there will be a lot, you know.

THE COURT Just a moment. Question was: What was the nature of the conversation.

A It was about -- the nature was keeping silent.

MR. TAIKEFF: May I pursue that, Your Honor?

THE COURT: I didn't hear his answer.

{3956}

MR. TAIKEFF: He said it was in the nature of keeping silent.

MR. HULTMAN: Well, again I object to this as one, as having no probative value; two, whatever the nature of the conversation between the client and his lawyer, I clearly don't believe that has any relevancy here. There's been no showing of any foundation, Your Honor. No probative value.

THE COURT: I will permit you to pursue it.

MR. TAIKEFF: Thank you, Your Honor.

THE COURT: I'll permit you to ask another question at least.

MR. TAIKEFF: There's not much more to it. I just want to get to a specific or two.

Q (By Mr. Taikeff) It it correct for me to say that he gave you some kind of a warning?

A Yes, he did.

Q And is there any doubt in your mind that at that time he knew about what was in the press concerning this?

A Yes, it is.

MR. HULTMAN: This again calls for an assumption and --

THE COURT: That objection is sustained.

MR. HULTMAN: Leading and everything else.

Q (By Mr. Taikeff) What did he tell you concerning keeping quiet?

{3957}

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

MR. TAIKEFF: I think Your Honor has already ruled on that objection.

THE COURT: Has it been brought out where and when the conversation was held?

MR. TAIKEFF: I'll be glad to do that.

Q (By Mr. Taikeff) Would you tell us where you had this conversation with Attorney Amiotte?

A In a federal building in Rapid City.

Q All right now, what did he tell you on the subject of keeping quiet?

A He told me that my name was put in the paper quite a few times and that it would be a great possibility that the Government would put somebody in the cell with me and that he said don't say nothing about it.

Q Did he say anything to you about discussing any news reports with anybody?

A No, he didn't. He just asked me to remain silent.

Q Now, do you remember the approximate date or the exact date hen he gave you this instruction?

A It was on the same day that I turned myself in.

Q Can you give us a date for that?

A Well, July 9th.

Q Okay. In other words, the day that you had to go to court {3958} on your first case is the day that you surrendered yourself for the second case?

A Yes.

Q The incident, alleged incident of June 24th?

A Yes.

Q Okay. Then you remained in the Pennington County Jail?

A Yes.

Q From that day until at least the FBI agents came to arrest you on June 26th -- I'm sorry, July 26th, 7th or 8th, whatever date it was?

A 27th. Yes, I was in custody.

Q Do you know the names of the agents who came to arrest you?

A No,not at this minute. No, I don't.

Q Do you know the names of any of the agents who came to arrest you?

A No.

Q Between the time Attorney Amiotte gave you whatever instruction or advice he gave you and the time the agents came to arrest you did you have any conversation with anyone concerning the death of the agents?

A There was, at that time there was quite a bit of talk. But like I say I kept it to myself.

Q What was the reason for doing that?

A For one because they're, they was looking for the reason.

Q I can't hear.

{3959}

A For one, they was looking for a good reason to charge me with it and that, you know, it was just something I didn't care to talk about.

Q Did you ever meet an agent by the name of Jacob --

MR. HULTMAN: Now, again, Your Honor, I object. The foundation that this is going to be is clearly leading. I have no objection again to ask this witness whether or not he remembers any agent, and so far that question has been asked and been answered, and I don't want anything leading so that the witness will be given a specific name of some kind.

MR. TAIKEFF: Your Honor, in spite of the fact that I'm entitled to lead for a foundation I will accept Mr. Hultman's suggestion.

MR. HULTMAN: Well, that's way beyond any foundation, especially in light of the foundation that he hasn't remembered any names of agents.

MR. TAIKEFF: No, Your Honor. He said he didn't remember the names of agents that arrested him.

Q (By Mr. Taikeff) Do you know the names of any FBI agents who had any contact with you in connection with this case?

A Yes, I do.

Q Tell us the name or names.

A Gary Adams.

Q Beg your pardon?

{3960}

A Gary Adams.

Q When did you meet Gary Adams for the first time?

A It was around the middle of August.

Q Where did that meeting take place?

A It was in the Pennington County Jail.

Q And did you call for him to come and see you?

A No, I didn't?

Q Was he alone when he appeared?

A No, he wasn't.

Q How many people were with him?

A There was one other agent.

Q Do you know the name of that agent?

A No, I don't.

Q Did you have any conversation with Mr. Adams?

A Yes, we did.

Q Tell us about that.

A Well, he come in and he asked me to sit down.

MR. HULTMAN: Again, Your Honor, I object on the grounds of relevancy.

THE COURT: Counsel have to approach the bench. I do not see the relevancy in that question.

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

MR. HULTMAN: Your Honor, my objection is on the grounds of, first of all, they're attempting to show that there {3961} has been no discussions because Amiotte has told him not to say anything to anybody. Now, they're turning around and they're trying to indicate that there's some discussions of some kind and I fail -- my objection is on the basis --

MR. TAIKEFF: I'm not trying to show there is a discussion.

THE COURT: What I am concerned about is what relevancy of -- you've asked him to go into his conversation with Adams. I'm concerned about what the relevancy of that conversation is.

MR. TAIKEFF: The relevancy, Your Honor, is that Adams said to him we want your help. Well, I'll tell you the entire thing. He said, "You don't have to say anything. I just want you to listen to what we have to say." And he said, "All right, I'm listening." And he said, "We want your help in this particular case and we know that you were not there that day. But if you do not help us we will see to it that you will be charged with the murder of the agents." He refused to assist and he was charged with the murder of the agents.

MR. HULTMAN: Well, I object to that on the grounds that it -- no relevancy of any kind and it's totally collateral.

MR. LOWE: Habits and practices, Judge, under the Federal Rules of Evidence that at least --

THE COURT: I'm not sure that that's admissible under habits and practices, but there is the testimony in the case {3962} that he was identified; and now the fact that Adams says -- that if Adams told him that he knows he wasn't there.

MR. HULTMAN: Well, now I want to now make very clear, and I think that counsel for the witness ought to be here, he's now under oath.

THE COURT: He's right behind you.

MR. HULTMAN: He's now under oath. There's no question in my mind at least what I think the results of a rebuttal witness is going to be. He's going to say that that is not true.

MR. TAIKEFF: I understand that.

MR. HULTMAN: That man is then placed in a position, I want to make it very clear, of giving testimony on the record under oath which is the basis for perjury. I want that made very clear here at the bench.

MR. TAIKEFF: Your Honor, the second meeting which the witness testified took place between himself and myself, was in the presence of his counsel who is presently at the sidebar, and indeed was at the request of his counsel. Because one of the things counsel was concerned about was what were the prospects for the prosecution of his client as a result of testifying, and one of the matters we discussed, and I can only assume that his counsel is well informed on, is that Mr. Hultman had said at the sidebar, the first time we came to the sidebar on this subject last week, that the Government {3963} would not be prosecuting this witness merely because he testified, but only if they could have proof that he testified falsely.

MR. HULTMAN: That's the point I'm now raising.

MR. TAIKEFF: And I reported to the witness's counsel, and I said all I want from your client is the truth as he knows it. And if he tells the truth he should have no fear of testifying; that he should know that like any other witness when he testifies. He testifies under oath and if he does not tell the truth he exposes himself to a perjury prosecution.

I assume that counsel for the witness has thoroughly discussed this with his client and advised his client of the absolute necessity for his own protection, and in the name of justice to tell the truth.

MR. HULTMAN: All I want to do is raise the issue, Your Honor, so that I don't, later get accused that I said one thing and did another,

My basic objection is still the same, Your Honor. One, there was no testimony of any kind in the Government's case that this witness was present at the day of the events happening. Not one scintilla --

THE COURT: As I recall Mr. Coward testified that he was. Wasn't that brought out?

MR. HULTMAN: No, no, no. Not one scintilla of evidence in the Government's case. It is only when the {3964} defense brings a witness, that he's put on the stand and says he observed whom he things to be Jimmy Eagle. It's only then that we now start to establish a case of some kind that a phantom was there, and now we set up and we attack. But, yes, absolutely ---

MR. TAIKEFF: Oh, Mr. Hultman, I must beg to differ with you. I would like to remind Mr. Hultman that in your case Coward testified that on that afternoon he did not have time to do an in depth interview, but on the way back in the car Stoldt told him that he spotted Jimmy Eagle.

MR. HULTMAN: No, no. I would object to that, it being in the record as far as the Government's case. Absolutely not.

MR. TAIKEFF: That is how he explains the fact that after having testified that he didn't see the guy for a long time, namely until September when I showed him the one page 302 which was indicated June 28th. He said, "Oh, yes." In fact, he said two things. He said that was a result of a casual conversation on the way back in the car, and he claimed that that date had to be wrong. That it wasn't the 28th. Let me make it clear which date I'm talking about. The date of the interview was not the 28th, he said, that was a typographical error. That it should have read June 26th. And he said that was a result of a casual conversation in the car that Stoldt reported to him that he identified Jimmy Eagle. {3965} That is as clear in my memory as anything.

MR. HULTMAN: All right. I would go to the record to find out what it shows. I'm not, I'm not, and I'm not saying counsel is not accurately quoting the record. I think it's honestly and fairly in his mind,

MR. TAIKEFF; I'm certainly trying.

MR. HULTMAN: And I had, I admit to that without any question. What I'm saying, one, is I don't think that that's what the record shows. I don't think that Jimmy Eagle's name appears in the record specifically. Even if it does, and my memory is not that good, I confess I might possibly be wrong, if it does it only appears there specifically as a cross-examination question of counsel. Does not appear there as part of the Government's case in any way.

MR. TAIKEFF: But evidence is evidence whether it comes out on cross-examination or whether it comes out on direct. It's a Government position, elicited from a Government agent who was an eye witness.

MR. HULTMAN: But the postulate was --

THE COURT: Just a moment. You say evidence is evidence. Certainly that's true, but what is this evidence, what does this evidence seek to prove? What are you attempting to prove by this evidence?

MR. TAIKEFF: Of this witness? Is Your Honor asking me about this particular witness?

{3966}

THE COURT: About whether or not this witness was spotted on the afternoon of the 26th.

MR. TAIKEFF: Well, Peltier was presumably spotted by the same person, but he didn't remember it for a little more than two months when he was reinterviewed. He then remembered that he not only saw Jimmy Eagle of whom he was fairly positive, as indicated in the paragraphs which Your Honor allowed into evidence this morning, but also recalled that he spotted Leonard Peltier.

Now, that entire sighting episode is legitimately suspect and I think there's enough evidence in the record to make the jury suspect of that particular evidence. So this witness's testimony about the fact that he never came closer than fifteen miles that day certainly is relevant to that particular aspect of the case.

MR. HULTMAN: Well, beyond that now, we're now going still into another yet another matter and that's the part I'm primarily objecting to, Your Honor. First of all it is my contention that it was not a part of the Government's case in any way, anything concerning the matters which counsel has indicated here in the record. Those matters only came into this record as a result of counsel's -- if it did happen in cross-examination as a result of counsel's cross-examination.

What it then does, and the purpose as counsel has indicated here, is this very simply one, to show that Eagle was {3967} not here. That's already in the record. There isn't any question about that is in the record. The government did not bring the issue of Eagle into this trial. That I know to be a fact without any question.

MR. TAIKEFF: No question about that.

MR. HULTMAN: I will stake my life on that because I was the one who programmed this case.

Secondly, that it is now apparent that what happens then is after you established that Eagle wasn't there, which the Government established in effect by not putting him into the picture to begin with, you then set up a strawman who through other testimony now is attempting to be elicited that alleged statements which the witness later made and are now the subject of possibility of a future charge which is why I bring it here Whether he tells the truth or doesn't tell the truth are matters which have no relevancy and are totally collateral. Whether he said later to somebody else that he was or wasn't there after they've established that he wasn't there is totally and highly prejudicial. That's the point I'm trying to make.

MR. TAIKEFF: Your Honor, there is a statement by Peltier in evidence from a Canadian law enforcement official which said, "No, I didn't kill those agents but I know who did." Now, here is a witness who in essence could not have known anything at all because he wasn't there. And I don't {3968} think the Government contends that he was there, who is told we know you weren't there and we want your help in this particular case. And if you don't give it, we'll see to it that you are prosecuted. And then, Your Honor, he managed to get indicted for statements which he allegedly made to people who were his cellmates after he's been carefully warned by his lawyer that if he doesn't keep quiet he's going to end up getting in a lot of trouble with his cellmates.

Now, Leonard Peltier is also on trial in this particular case and one of the many arguments that might be made to the jury is that he, too, admitted that he had some knowledge or might be in a position to help. But of course didn't help the Government, and I think counsel are entitled to bring out in this particular case what was done by the FBI in collecting information and getting witnesses prepared to say certain things, even though those things were A. untrue and B. known to the agents to be untrue. That --

MR. HULTMAN: Well, I object to this, Your Honor. First of all that that's not a proper showing of the facts. First of all there was evidence, they brought it out here themselves in this trial in their case, there was evidence that this witness was there. Now, I'm not testing whether it's truthful or untruthful.

MR. TAIKEFF: Who said he was?

MR. HULTMAN: You did by Stoldt. You called him. I {3969} didn't call him.

MR. TAIKEFF: But --

MR. HULTMAN: Wait until I get done.

MR. TAIKEFF: I'm sorry.

MR. HULTMAN: That's the first bit of evidence that he was there.

MR. TAIKEFF: I'm talking about the times that counsel is now --

THE COURT: I was under the impression that Coward had testified that he was there.

MR. HULTMAN: No, no, absolutely not.

MR. TAIKEFF: Peltier, Your Honor.

MR. HULTMAN: Peltier. Coward only testifies from the time of the beginning until today.

THE COURT: Even in cross-examination?

MR. HULTMAN: Oh, yes. They have said this man was there in any way.

MR. TAIKEFF: I must differ with Mr. Hultman. He said that Stoldt told him that Eagle was there.

MR. HULTMAN: I'm saying, all right, Counsel, what I'm saying is that one, Coward never saw this man there. Period. And is there any objection about that?

MR. TAIKEFF: No, agreed.

MR. HULTMAN: All right. So he's telling the truth as far as that's concerned.

{3970}

Now, at the time the agent goes to seek an interview what does the agent know, just assuming the record in this. One, there is a statement by an eye witness that he sees this man here, Stoldt's, the man they called. Now, that's at least the basis for which an agent better be asking some questions about. Secondly, he has statements. Now, this I don't know all the times, but there are allegations by individuals that this man has told certain details about the event.

MR. TAIKEFF: Yes.

MR. HULTMAN: Thirdly, you said that your man, one, is instructed not to talk to anybody, and thirdly, you are saying that the man who's going to seek the information knows he wasn't there and thus is being dishonest. I say there's no showing of that kind of any kind. The man is there seeking information. His only knowledge is that he has information this man was there.

MR. TAIKEFF: Well, I say it's an admission against the interests of the Government for an agent of the Government who is actively involved in this case one month after the incident to say to somebody we know you weren't there. And if you don't cooperate with us and help us in the ways we want you to help us we're going to see to it that you get indicted.

MR. HULTMAN: I say that's a collateral matter. Two, {3971} it will force me to bring the witness back to prove that this man is a liar at that particular point about a matter which is totally collateral and has no relevancy.

THE COURT: The ruling of the Court is that it is a collateral matter and the objection is sustained.

{3972}

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

Q (By Mr. Taikeff) When I asked you about a visit from an agent who you could identify by name, I think you said it was in the middle of August, is that correct?

A Yes. Around that time.

Q Would you think about whether it may have been at an earlier time than the middle of August.

A Might --

Q Or put it in terms of whether it was before or after you were arrested.

A It was after I was arrested.

MR. TAIKEFF: I have no further questions of this witness, Your Honor.

MR. HULTMAN: Might I have just one moment, Your Honor, to confer with Counsel.

THE COURT: You may.

MR. TAIKEFF: Could we come to the side bar, Your Honor?

THE COURT: You may.

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

MR. TAIKEFF: Does Your Honor's ruling preclude me from asking this witness whether he made certain specific statements to certain people?

{3973}

THE COURT: What do the statements relate to?

MR. TAIKEFF: A detailed description of the events of June 26th.

MR. LOWE: As purported eyewitness to the execution, Judge.

THE COURT: What is the government's position on that?

MR. HULTMAN: I object, Your Honor. Again creating under the total collateral matters. He's already been asked whether or not, I believe the words to this effect that he discussed this with anybody, I think your earlier question indicated, and, secondly, he was given specific instructions by his Counsel not to discuss it with anybody. Now if you want to ask the one single question, did you discuss this case with anybody other than your Counsel, I don't see any objection to that. I think it's repetitive. I think you've already asked it. But to go beyond that --

THE COURT: What if he says yes?

MR. HULTMAN: Well, again I get back to the collateral matters again. That's the reason for my objection from the very beginning.

MR. LOWE: Judge, I think it's important for you to know that the statements which purportedly were attributed rather to Mr. Eagle and which we seek to explore with Mr. Eagle include a purported eyewitness account to the shooting of these agents. I believe I indicated, in details which first {3974} of all are impossible by the pathology. I think that would be a finding anybody made, and Counsel would concede, so that on its face it appears not to be a truthful eyewitness account and, secondly, it fits into the pattern we believe has been established prima-facie which we seek to show by way of impeachment of government witnesses, FBI agents and some of the other accounts that are in the record; namely, they were seeking willfully or recklessly statements of people who purported to be eyewitnesses without verifying them. In some cases it was obvious they were impossible because of the pathology of the described killing. In Mr. Eagle's case he describes sub-machine gunning, crisscrossing the chests of the agents. We know there were only three bullets in each agent. We believe this goes directly to the credibility of the witnesses who do testify here such as Mike Anderson. We believe it goes to the credibility of the FBI agents. If the jury believes that they have conducted themselves improperly or illegally through these activities, we believe it shows the FBI agents in this case, not one or two or three, that's what we offer it for.

MR. HULTMAN: Your Honor, could I --

THE COURT: The offer is denied. This witness has testified that he was not present. If we get into this other matter you're going to get into a trial whether or not he was present. He has testified he wasn't present.

{3975}

MR. TAIKEFF: There is also the argument to be made, even if he wasn't present he may have said things which would indicate he was present.

THE COURT: What relevance would that have except whether or not he was present?

MR. TAIKEFF: If, A, he wasn't present and, B, he never said anything by way of describing the events, then it is not possible for anybody to have heard him describing these events, whereas --

THE COURT: That isn't in the case.

MR. HULTMAN: That isn't in the case. That's totally collateral.

THE COURT: That isn't in the case. He described --