VOLUME XX

Pages 4197-4445

{4197}

TUESDAY MORNING SESSION

April 12, 1977

(Whereupon, the following proceedings were had and entered of record on Tuesday morning, April 12, 1977 at 9:00 o'clock, P.M. without the jury being present and the defendant being present in person:)

THE COURT: When we recessed last night there was one witness apparently left on the offer of proof, Agent Wood.

MR. TAIKEFF: Yes. And there would be a verbal offer with respect to the offer of proof concerning the attorney, Marvin Amiotte, Your Honor may recall.

THE COURT: I am wondering if we should interrupt the offer of proof and go on to other matters so that the jury may be brought in.

MR. TAIKEFF: Your Honor, it makes little or no difference to the defense. Whichever schedule Your Honor prefers to follow.

THE COURT: How much time would you anticipate it would take to present the testimony of Special Agent Wood?

MR. TAIKEFF: Trying to maximize my estimate so that I'm not wrong, I'd say about 30 minutes. Probably will be less but I think 30 minutes should be allowed for it.

THE COURT: I think we will interrupt the offer of proof then and go on to other matters this morning and we'll work in the offer of proof perhaps after the jury is excused {4198} for the day or sometime like that.

MR. TAIKEFF: Would Your Honor allow me to bring a few matters to the Court's attention. I think it should be taken up at this time. I won't take very long. Concerning the subject of requested charge.

I would first make inquiry as to whether the government intends to serve and file any reply to our briefs?

MR. HULTMAN: I'm not quite sure to what Counsel is referring, Elliot. Maybe you could indicate which ones and I might be in a little better posture.

MR. TAIKEFF: It's my understanding, I did not handle that portion of the case, it was done by Mr. Engelstein and Mr. Nadler, but the defense has submitted its own requested charge and in addition to which it has submitted two memoranda, one in support of its proposed jury instructions and one detailing specifically the basis for the opposition to certain government charges.

The reason I raise the request about a government response is because I wanted to ask the Court to set aside some time so that Counsel could be heard and so the Court could make its decision and advise Counsel because I think the final preparation for the summation should reflect Your Honor's ruling with respect to certain key and important instructions to the jury. That's the reason why I bring it up now so that appropriate time can be set aside for whatever has to be done.

{4199}

MR. HULTMAN: In response, we have submitted our request, Your Honor, and we intended to stand on that posture and not respond further.

THE COURT: It is not your intention then to respond to the two memos that defense has filed?

MR. HULTMAN: It is not. It is not, Your Honor.

THE COURT: The Court will allow time for oral argument on the points raised in defense memorandum.

MR. HULTMAN: We would intend to respond at that time, Your Honor.

THE COURT: I would expect that. You do not intend to file a written response?

MR. HULTMAN: Nothing further.

MR. TAIKEFF: I assume Your Honor will make some provision to advise the Counsel of the rulings prior to the time that Counsel has to make its final preparation for summation so that arguments are not made which are inconsistent with the view of the law that the Court will take to the jury?

THE COURT: I will anticipate I would be able to rule immediately following the oral argument.

MR. TAIKEFF: I would assume that Counsel would then be given some time to reflect upon Your Honor's ruling in terms of what has to be adjusted in the closing arguments. That's the reason why I bring it up what may seem to be a somewhat early time,so that there can be that period of {4200} reflection without interfering or delaying the proceedings then.

THE COURT: I recognize the problem. It has always been my practice to get into matters of instruction until all the evidence is in so as far as Counsel are concerned --

MR. TAIKEFF: We have no objection to that. We wanted to be in a position to make an early comment on the subject. Whatever the Court deems appropriate. As long as we have a reasonable amount of time it is of no concern to us. We didn't want the Court to feel that we brought the matter up in the eleventh hour and 59th minute and thereby interfere with the Court's anticipated schedule.

THE COURT: What do you consider unreasonable time?

MR. TAIKEFF: Overnight would be perfectly adequate, in fact quite adequate.

THE COURT: I can see no problem with that request.

MR. TAIKEFF: Thank you, Your Honor.

I'm wondering whether the government has available for the defense the AR15 which was recovered in Oregon. We intend to make use of that today.

MR. HULTMAN: It is available.

MR. TAIKEFF: I would just indicate that once the jury is brought in it would be appropriate if it could be in the courtroom because we're going to offer it in evidence.

MR. HULTMAN: I would want to indicate on the record {4201} and undoubtedly we're going to have some resistance. We'll have it available but I'm sure we'll have resistance.

MR. TAIKEFF: I certainly didn't mean by the government cooperating by bringing it here had to waive any legal rights.

Your Honor, there is something concerning Defendant's Exhibit 75 which in part is in evidence and in part is merely marked for identification and I wanted to take this opportunity to have a pre-offer ruling so as to eliminate legal argument at the time.

Your Honor, I have one more example of how fortunate we are to have Mr. Hanson watching over us all. Apparently what was originally Defendant's Exhibit 75 for identification, the entire 36 page 302 was modified by removing all pages but pages 1 and 2 which are in evidence. So that should be reflected in the record because I misspoke a moment ago.

MR. HULTMAN: Which 302, Counsel, are you referring to?

MR. TAIKEFF: Referring to the radio transmissions 302.

Your Honor, at this time I would ask for a pre-offer ruling concerning an entry at 1:26 P.M. which is a transmission according to the entry on page 4 of that 302, Adams to Coward.

{4202}

Now, your Honor may not have the entire document; but I have a copy here and I can hand it up to Mr. Hanson.

(Court examines document.)

THE COURT: You may proceed.

MR. TAIKEFF: In reviewing the transcript in preparation for summation, it is rather apparent that Agent Adams' position on the subject is that, "Yes, he did make a transmission concerning a certain vehicle, but that occurred at 1:30," which he relates to certain events which occurred, namely, somebody coming on the premises and then maybe a short time later, apparently under the watchful eye of the law enforcement officers.

As the record now stands, it could be argued more effectively by the Government than I think they are entitled to argue, that there was only one transmission and that a mistake was made by somebody somewhere, that didn't occur at 12:18 but it occurred at about 1:30.

As a result of our anticipation that that kind of an argument will be made, or at least could be made, we think it appropriate that we introduce into evidence that particular transmission of 1:24 p.m., which is undoubtedly the transmission that Adams speaks of as having been made at approximately 1:30.

However, with both of them in evidence, namely, the 1:24 transmission and the 12:18 transmission, the argument {4203} becomes much easier for the defense to make, and therefore, we would propose to offer that additional transmission; or if the Government feels it appropriate, any additional transmissions that should be offered along with it to supplement our body of evidence for the purposes of making the argument outlined to your Honor.

I think I may have -- because I don't have the document in front of me, your Honor -- I said 1:24, I think the time is 1:26.

THE COURT: 1:26 is the time.

MR. TAIKEFF: Yes, sir.

That clearly, I think, is the transmission which Adams was talking about when he made reference to the 1:30 p.m. transmission.

MR. HULTMAN: Counsel, is what you are indicating -- might I make inquiry, your Honor -- that the 1:30 testimony of Adams in effect is the 1:26 transmission, is that what you are saying?

MR. TAIKEFF: Yes.

MR. HULTMAN: One and the same?

MR. TAIKEFF: Yes, I believe indeed they are one and the same. There is also additional testimony, as I recall from Adams concerning a person who arrived on the scene, was apparently not a person who was suspect in any way because he wasn't interfered with. He then left the scene {4204} shortly thereafter, and that testimony was said -- or rather those facts were said to have occurred at approximately 1:30.

At a different point in Adams' testimony -- and I believe it was on cross examination -- he explained that he did make a transmission about a pickup, but it wasn't at 12:18, it was at 1:30; and in fact he did, and that is the transmission; but I think it important for the jury to see and for the defense to have an opportunity to argue that there were separate transmissions, and in fact there was one at approximately 1:30 as he stated, but most importantly there was an additional one at 12:18; and if the jury doesn't have before it evidence of the fact that there are two separate recordations, then it leaves the Government in a position that they should not be in to argue that the time was recorded incorrectly, that there was only one transmission and there is a dispute about the time.

MR. HULTMAN: I don't see any problem, your Honor. It is my understanding that it is that one line that you really want in; and if that -- I mean the time and what follows, and if that is true, the Government has no objection to that, your Honor.

I think the rest of the page, as indicated, is not requested; and the Government would concur that that time {4204A} and the info that does follow on that one transmission would be included, we would have no objection.

THE COURT: m at paragraph on Page 4 of what was originally marked Defendant's Exhibit 75 under the time designation of 1:26 p.m., which reads as follows: Adams to Coward, south of Oglala, pickup came in here and he just left, can't get any BIA people on it. We have, can you get on Channel 1 and tell them to turn that tower on? -- will be admitted.

MR. HULTMAN: Your Honor, when I do look at some of the other items now on the page, and because there is another transmission at 1:31 which again includes Adams and goes to some of what counsel is referring, I think it might be wise and the Government would seek the whole page to come in. It might show the sequence a little better.

(Counsel confer.)

MR. TAIKEFF: May I confer with Mr. Hultman for a moment? We might have a simple mechanical solution.

(Counsel confer.)

MR. HULTMAN: Your Honor, I think now the Government and the defense are willing by stipulation to enter the first four pages, and then everything will be in sequence.

MR. TAIKEFF: We are agreeable, your Honor; and may we suggest, if your Honor approves, that we merely take Pages 3 and 4 and supplement the existing exhibit. The {4205} record reflects, of course, what we are saying so there won't be any confusion in that regard.

THE COURT: Very well. On agreement of counsel Pages 3 and 4 will be added to Pages 1 and 2, and the four pages will represent Exhibit 75.

MR. HULTMAN: Is that all, counsel?

MR. TAIKEFF: There is only one other matter, and That is this, your Honor: Yesterday afternoon your Honor asked counsel to come forward, and your Honor made inquiries about certain witnesses for whom subpoenas had been requested, and I understand from somebody in the defense team, were issued at approximately 11:00 o'clock yesterday morning and then temporarily recalled until your Honor had occasion to speak with counsel.

In reference to one of those two witnesses, not the attorney, I advised your Honor that that person was an alibi witness concerning the whereabouts of Jimmy Eagle during the afternoon of June 26; and because of the events of yesterday, I was not as cognizant of every factor as I should have been, and I said to your Honor in view of your Honor's ruling on the Jimmy Eagle matter, I conceded that it would not be necessary to call that person at this time. However, in reflecting upon yesterday's activities in the evening, I realized that a portion of Jimmy Eagle's testimony was heard by the jury, namely, his specific claim {4206} that he was not there and that he was at his grandmother's home.

Now, in regard to that, there is a 302 which indicates an interview by J. Gary Adams and Ronald W. Bienner, the gentleman who has been here assisting Government counsel; and they interviewed that person, and that person told them on November 13, 1975, that on June 26, 1975, she was at the residence of Jimmy Eagle's grandmother, Gladys Bisenet, and Jimmy Eagle was at the Bisenet residence all afternoon and that Eagle was there visiting his grandfather.

Now, it seems to me that in view of the fact that Jimmy Eagle has testified that he wasn't there, until and unless we are reasonably certain that the Government isn't going to take a contrary position in argument, we should be allowed to introduce that testimony.

Now, if Mr. Bienner would take the stand or the Government would make a concession or a stipulation concerning this interview, we can avoid the necessity of sending for her on the Reservation; but I think in some way the defense should be made secure that the issue of Jimmy Eagle's presence is not in dispute, and if it is, then I think we should be entitled to call that alibi witness and any other alibi witnesses that we have because that is a matter for the jury's consideration.

{4207}

MR. HULTMAN: Your Honor, we come back to the basic proposition. The Government has not introduced any evidence of any kind concerning Jimmy Eagle. It's only the defense that has, and that evidence has been that he was not there. And the Government does not contend in any way, hasn't, isn't nor will they in the future of the rest of the trial. So a gain it would seem to me that the matter we're now discussing is totally irrelevant in any way.

MR. TAIKEFF: Well, I'm wondering whether there's some method of making that position known to the jury. I think we're entitled to make that known to the jury without making any big fanfare out of it.

THE COURT: Well, as I understand --

MR. HULTMAN: It's not a relevant matter.

THE COURT: As I understand counsel for the Government is not going to argue and not going to contest it in argument that the fact of Jimmy Eagle's presence or nonpresence; is that right?

MR. HULTMAN: That is correct, Your Honor.

THE COURT: That is what I understand him to say.

MR. TAIKEFF: Well, I would ask at the very least if the Government is not prepared to make the statement for the jury that it is just made to the Court, and I understand the clear difference between what one says on oral argument and what one says for purposes of evidence. Perhaps the Government {4208} would stipulate that if called Hazel Shields would testify in accordance with what I read from this 302.

MR. HULTMAN: No. The Government will not because the Government resists, Your Honor, that this has no relevancy. That's the reason why I'm not willing.

THE COURT: I think as far as the Court is concerned we'll resolve this by the Court will receive that exhibit on the offer of proof. I see no reason to make, put it in the put it in the case.

MR. TAIKEFF: But the evidence was heard by the jury, that part of it.

THE COURT: The evidence that the jury heard is the testimony of Jimmy Eagle that he was not there. The Government has just said they're not going to contest that or even argue adverse to that.

MR. TAIKEFF: All right.

THE COURT: This would simply be cumulative.

MR. TAIKEFF: All right. That's acceptable to us, Your Honor. We'll take an appropriate position before the jury on that particular subject.

MR.HULTMAN: Is counsel now completed?

MR. TAIKEFF: Yes.

MR. HULTMAN: I have just one item, Your Honor, and I'm not set to argue it and I don't request time of the Court. I want to save time.

{4209}

Yesterday it was brought to my attention that a William Muldrow will be called as one of the names given to me. And so I want to, on the record, place my objection to that testimony, and I think I can do it far quicker by putting it in writing instead of standing up and discussing it, and so that's the purpose. And part of the motion, and as a part of our Motion in Limine.

THE COURT: Defense have a response to --

MR. TAIKEFF; Your Honor, I have not had an opportunity to examine the papers except I can say this in response: That Mr. Muldrow is going to be called for a limited purpose, and that is concerning the events and his observations of condition on the reservation in the days immediately following June 26th. And --

THE COURT: And that is relevant to this case in what respect?

MR. TAIKEFF: That is relevant as rebuttal evidence to the Government's evidence and theory that the defendant's flight from the reservation and his going to Canada was a reflection of his guilty knowledge. And as we've previously indicated to Your Honor there was another reason for his flight which had nothing to do with any guilty knowledge, and this is evidence of what prompted him to leave and go to Canada.

MR. HULTMAN: Your Honor, there is no showing of any kind in this record as to when the defendant did leave. And {4210} if counsel is willing to stipulate that into the record then maybe there's some basis that we would have some argument But as it stands right now there's not any showing in this record as to when this defendant did leave.

We know at a certain time he was in Oregon, but that's, and the record shows, at least it's arguable of course, but there is evidence in the record that shows he was there on the 26th and then he's in Oregon. But there's no showing as to how long a period of time or how long a time he was on the reservation.

But the point I wish to make is I have outlined, I won't argue, is simply what I've said on a page and a half; and the rest of it, Elliot, is the report itself with which I'm sure you are familiar, and that's probably what he's going to testify to. And secondly, his testimony at the last trial which you've had a copy of. So the only parts of this that are new to you is the page and a half that I've set out as my basis for it being relevant.

MR. TAIKEFF: Well, I have to admit that I did a sloppy job on Mr. Muldrow's preparation. I didn't read his testimony from the last trial and I didn't read his report because I interviewed him and planned to call him on one point only, and that is the observations he made and the conditions which existed in the days immediately following June 26th. And I don't intend to go into the other areas which {4211} perhaps are the areas that the Government objects to.

But to answer the first point that Mr. Hultman made, as a general proposition his point is well taken. What he overlooks is that in the record there is testimony by Jean Day that she met with the defendant in the Pine Ridge area after the funeral of Joe Stuntz, which she thought was on July 2nd. So they met on July 3rd or July 4th. That means, I think by reasonable inference, that he continued to be on the reservation until at least July 4th which is approximately a week after the event, and it is that period of time that Mr. Muldrow is going to testify about.

THE COURT: And I presume from what you have suggested that his testimony will be somewhat cumulative of other testimony that you've put in so far as the number of agents on the reservation, the fact that there was armored personnel carriers on the reservation and helicopters.

MR. TAIKEFF: He's not going to testify to that fact, but he's going to testify to the atmosphere which was in fact created as a result based on his own observations and interviews. Because he went there to make an official government study of the conditions. And as part of that testimony he forges the last link in that chain of evidence as to what was the widespread result and reaction of the community to what was happening. Because we have to show besides his mere presence, although I think we could argue reasonably that his mere {4212} presence would reveal to him much of what was going on, but we have to show, because of other testimony, that people came to speak with Leonard.

Jean Day testified that there were other people present and there was discussion about the advisability of staying and whether he should go and why he should go. Mr. Muldrow will establish, based on his own observations and his own official status there as a government official what the reaction was, what the widespread community reaction was and how the residents responded to what went on.

Now that we have what went on in the record his testimony supplements that. It is not cumulative of that.

MR. HULTMAN: Your Honor, might I just respond with one sentence. It appears to me then what counsel is referring to is the testimony that has to do, or summarized by the inner-office memorandum of July 9th, and is not the one in January, February, nine months later. As to that again, Your Honor, I would say all of that discussion and those observations are clear hearsay, that they are biased, a one-sided examination and that if the Court will look at that particular exhibit which summarizes what I expect then his testimony to be as indicated I think you can understand the position of the Government with reference to his testimony.

{4213}

THE COURT: It's not my understanding that you were intending to offer any specific reports.

MR. TAIKEFF: Your understanding is correct if Your Honor thinks I'm not going to offer any reports.

MR. HULTMAN: Your Honor, what I'm saying is that report summarizes all that he's going to testify to. These are the things, am I not correct, Counsel, that basically what he says in the interoffice memo is what you're going to elicit from him from the stand and not put the report in but elicit the same thing from him from the stand?

MR. TAIKEFF: I think there is a lot in the report that has nothing to do with the questions I'm going to ask him so I would have to answer your question in the negative. No. I do not intend to elicit those things.

MR. HULTMAN: I'm going to continually object, Your Honor, to any hearsay. What his observations may have been is one thing but if he saw something and that is relevant, then that's one thing but I'm going to continue to object to a line of hearsay that is a kangaroo court session which obviously by the reading of this report, and that's the part to which I'm going to object to.

MR. TAIKEFF: I don't intend to adduce any hearsay and I trust the government will have an adequate opportunity on cross-examination to establish any bias on the part of this witness who is a federal government employee.

{4214}

THE COURT: Well, you will be permitted to put the witness on the stand and I will rule as may be required by the issues that may arise during his testimony.

MR. TAIKEFF: Thank you, Your Honor. Pursuant to Your Honor's earlier suggestion that one page 302 of Messrs. Adams and Biner has been marked Defendant's Exhibit 218 and I'm lodging it with the Clerk as part of the offer of proof.

THE COURT: Exhibit will be received on that ground.

May we now bring the jury in?

MR. TAIKEFF: Yes, Your Honor.

MR. HULTMAN: Yes, Your Honor.

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

THE COURT: Members of the jury, you have been kept waiting for a considerable period of time yesterday and for a short period of time again this morning and you may have some additional periods this week when you will again be kept waiting but I do want to give you this assurance, that these periods when you have been kept waiting will not result in lengthening the trial.

MR. TAIKEFF: Your Honor, the defense calls William Muldrow.

WILLIAM MULDROW,

being first duly sworn, testified as follows:

MR. TAIKEFF: May I inquire, Your Honor?

{4215}

THE COURT: You may.

DIRECT EXAMINATION

BY MR. TAIKEFF:

Q Mr. Muldrow, where do you reside?

A In Denver. Colorado.

Q Could you possibly move that microphone a little closer to yourself so it can pick up your voice. You don't have to lean over in the direction of the microphone though. By whom are you employed?

A By the United States Commission on Civil Rights.

Q For how long have you been in that particular occupation?

A Three years.

Q What's the total number of years of government service you have had?

A Three years.

Q Just in that job?

A Yes.

Q What's your educational background?

A I have two Bachelor's degrees from the University of Colorado in engineering and business administration. I have a masters degree in sociology from Princeton Seminary, a Masters Degree in theology from Princeton Seminary. I have three years work towards a PhD in social cultural anthropology from Indiana University.

Q Prior to the time that you became an employee of the United States Government, what sort of work did you do?

{4216}

A I worked immediately prior to being employed by the government for the United Presbyterian Church of the U.S.A. in coordination with the government of Ethiopia doing research and community development work in small tribal works in that country.

Q Did you have occasion in 1975 to do any work in your official capacity on the Pine Ridge Reservation?

A Yes, sir. I assisted in an investigation, the commission did, of the election which had occurred the previous year, tribal election on the Pine Ridge Reservation for the presidency of that tribe, a contest between Richard Wilson and Russell Means.

Q Now in the summer of 1975 did you find yourself on that reservation, that's almost two years ago?

A Yes. I was on the reservation during that summer and also a number of occasions in the months prior to the summertime.

Q Are you able to tell us the dates in either June or July, 1975 that you were on the reservation?

A In 1975? I'm sorry, I can't give you the exact date. I don't have that at my fingertips. It was about three days after the shooting of the FBI agents.

Q If I told you that it is an uncontested fact that the agent lied on June 26th, 1975, does that help in any way to pinpoint the date?

A That would have placed me there on June 29th and for the {4217} succeeding three or four days.

Q So that you were there in the early part of the month of July?

A That's correct.

Q Now, first, I want to ask you about observations which you made with your eyes. What places on the reservation did you go to in the days that you were there beginning on June 29th?

A I visited throughout the reservation area extensively, including the town of Pine Ridge, the tribal offices, the BIA governmental offices there. I visited the site of the shootings where the two FBI agents and the native American man were killed. I visited various families and persons throughout the entire reservation.

Q By the way, other than the clusters of population in the towns or hamlets or villages, are there residential facilities in between these places on the reservation?

A There are individuals who live in very isolated situations yes, remote from the villages on the reservation and little homesteads or individual houses throughout the reservation.

Q As a general rule, though, how would you describe the area in terms of its vastness and how populated it is outside the immediate clusters which are the little villages?

A General impression one gets when visiting the reservation is extreme isolated, barren area. The population is very sparse {4218} in terms of the tremendous size of the reservation. There are clusters of government houses where people do live in close proximity, but by and large the families are scattered very long distances apart throughout the reservation.

Q Now, sir, during the period that you were there beginning June 29th, did you see any people who you believed to be or knew to be agents of the Federal Bureau of Investigation?

A Yes, I did. And I talked with several of them.

Q Generally how were they dressed?

A Most of the ones that I was able to identify were dressed in combat fatigues, camouflaged combat fatigues.

Q What sort of equipment did you observe was being carried, if any?

A Many of them carried rifles, some of which appeared to me to be automatic rifles. There were a great number of military type vehicles, too, in evidence throughout the reservation.

Q What do you mean by military type vehicles?

A Jeeps and other vehicles with military markings on them.

MR. TAIKEFF: May I have one moment, please, Your Honor.

Q (By Mr. Taikeff) I place before you Defendant's Exhibit 206 in evidence and ask whether you saw any objects such as the object depicted in that photograph on the reservation in July of 1975?

A This appears to be an armored carrier of some kind, and {4219} it's my recollection that I did at that time see a vehicle similar to this on the reservation.

Q Now I show you Defendant's Exhibit 200, 201 and 204, all in evidence, and I ask you whether the manner of dress of the people in those photographs is consistent or inconsistent with what you observed in connection with the sightings of the FBI personnel?

A Yes. The fatigue uniforms that these men are wearing are not camouflaged; many of the ones that I observed were, did have camouflage markings on them, but there were many others that did not.

Q What would you say was the total number of individuals from the FBI that you personally saw during your stay?

A It would be very difficult for me to estimate a number. all I can say is that they were quite in evidence both in Pine Ridge and other parts of the reservation I visited. I'm not sure how many there would have been but there were quite a number of them.

Q Do any of the photographs which are before you show any kind of shoulder weapons?

A Yes, they do.

Q And I also place before you Defendant's Exhibit 203 in evidence, calling your attention particularly to the person on the right-hand side of the photograph and the object in that person's right hand. Now with respect to that photograph, and I {4220} notice that you separated out these two, am I correct?

A Yes.

Q That would be Exhibits 200 and 201. What relationship, if any, is there between the weapons depicted in those photographs and the weapons you say you saw?

A I couldn't say definitely that these were the specific types of weapons I saw. I do recall at the time that I was rather surprised to see such a number of shoulder weapons being carried and I noted, I remember noting that some of them appeared to be automatic weapons. I can't say that these particular weapons are the ones that I saw.

Q Now, sir, did you have occasion in the course of your work to speak with residents of the reservation?

MR. HULTMAN: Your Honor, I'm going to object to any further responses in this area on the grounds of clearly hearsay. It's not relevant and there has been proper foundation.

MR. TAIKEFF: Your Honor --

THE COURT: The question that was asked, the objection to the question that was asked is overruled.

Q (By Mr. Taikeff) You may answer, sir.

A Yes. I did speak with quite a few residents of the reservation.

Q Now briefly and without getting to any responses or contents, what connection if any was there between your official {4221} governmental purpose in being there and speaking with residents of the reservation?

Do you understand how I want to limit your answer at this time for legal reasons? I don't want you to tell us anything you heard, I only want you to answer questions about your activity versus your official function.

A I was there under instructions from my supervisor who was responding from the various requests that the Commission had received for them to do, make an inquiry into activities of the FBI on the reservation following the shooting of their two agents at that time. Many of the complaints --

MR. HULTMAN: If it please again, Your Honor, I want this --

MR. TAIKEFF: Don't --

MR. HULTMAN: -- witness to know very-clearly, and he's a learned man, we only want what's responsive to the question and not get into what other people have told him.

MR. TAIKEFF: Let me narrow it down, if I may ask a somewhat leading question.

Q (By Mr. Taikeff) Did you speak with people on the reservation because that was part of what you went there to do?

A Yes, I did.

Q Now as a result of speaking with people, and how many different people did you interview?

A I can't give you an exact number at this moment, but it {4222} probably was between 30 and 40 people.

Q And in which community?

A In several of the communities in Pine Ridge, Oglala, Allen, Porcupine, various communities around the reservation.

Q Now as a result of speaking with these people concerning the events which were then occurring on the reservation, did you gain any impression as to what the reaction to the community at large was to the events which were occurring, Yes or no?

A Yes.

Q Can you summarize for us based on your own observations and your professional standing --

THE COURT: Before he answers --

MR. TAIKEFF: I'm not going to have him answer, I'm just going to put the question.

MR. HULTMAN: Your Honor, I would interpose the objection I interposed just a moment ago.

THE COURT: I understand your objection. I'll let you finish the question.

Q (By Mr. Taikeff) Do you understand, sir, there may be some legal discussion after I asked the question. Don't answer it until I finish the question and until the judge gives you a signal to answer.

A Would you repeat the question.

Q I will. I'll start at the beginning.

{4223}

Based on your observations on the reservation at that time and upon the interviews that you conducted amongst the residents in several locations on the reservation, did you gain an impression as to what was the general community reaction to the events immediately following June 26th, 1975? I'm looking for a yes or no answer.

MR. TAIKEFF: May he answer that question, Your Honor?

{4224}

THE COURT: Yes, but then I am going to require an additional foundation before you get into it.

MR. TAIKEFF: Yes, sir.

Q (By Mr. Taikeff) Would you tell us whether --

A (Interrupting) Yes, I believe I could. I did form some impressions.

MR. HULTMAN: Now, I would interpose my objection, your Honor.

THE COURT: The additional foundation that I would require at this time before ruling on it is -- the witness has testified that he visited 30 or 40 different people -- now, I would like to know what class of people, whether they were officials, whether they were --

MR. TAIKEFF: (Interrupting) I understand, your Honor.

THE COURT: (Continuing) -- natives living out in the sparsely populated areas, or just what the type and groups of people were that he visited with.

Q (By Mr. Taikeff) Do you understand what his Honor is interested in learning from you?

A Yes, I do.

Q Would you be kind enough to tell him and the jury?

A I talked with tribal officials including the tribal president, members of the tribal council. I talked with officials of the Bureau of Investigation, I talked with, as I indicated, {4225} FBI Agents who were standing around in Pine Ridge, I talked with members -- residents of the Reservation in a variety of living situations.

Q Native American people?

A Native American persons. I talked with reporters and photographers from a variety of news media who were present there.

I talked with members of the Bureau of Indian Affairs police. I tried, in other words, to talk with representatives of most segments of the community at that time.

Q Now, the impression which you say you have concerning the general community reaction, is that based upon all of the things I which you heard and learned from speaking to all of those categories of people?

A That's correct, yes.

Q Now, don't answer the next question until his Honor rules on it.

What is your impression of the general community reaction to the events immediately following June 26, 1975?

MR. HULTMAN: Again I renew my objection, your Honor; and furthermore, specifically in addition to the reasons that I have stated, hearsay, foundation, relevancy on the basis that that in no way indicates or in any is relevant to what the Defendant in this case -- posture was with relationship to that on that day.

{4226}

THE COURT: The objection is overruled. The answer of the witness will be received on the issue of whether or not the Defendant fled the Reservation to avoid prosecution.

MR. TAIKEFF: Or for some possible other reason?

THE COURT: Or for some possible other reason, that is right.

MR. TAIKEFF: Yes, sir.

Now you may answer my question.

A Based upon my observations and conversation with persons at that time, in contrast to previous visits in the months prior to that time, with persons on the Reservation, it was obvious that there was a climate of extreme tension, emotions were running very high, many persons were frightened for their own safety and for the safety of their family. They were concerned as to whether they would be stopped, questioned, in general there was a high level of fear and tension on the Reservation.

MR. TAIKEFF: I have no further questions.

CROSS EXAMINATION

By MR. HULTMAN:

Q I believe I just have two questions, Mr. Muldrow. The first one is: Do you then see anything unusual about law enforcement officers, after there has been a death in which two individuals who are law enforcement officers -- one, you {4227} don't know anything about what happened on that day -- maybe I ought to establish that foundation -- isn't that correct, you weren't there on the 26th?

A I was not there personally.

Q Now, I am going to show you some photographs which have been entered in evidence here as Government's Exhibit 59, and just have you take a look at those for just a second (indicating).

A (Examining).

Q And ask you whether or not you see anything unusual about the fact that if two agents were found in this kind of condition, brutally killed, anything unusual about a manhunt then following to try and find those who had committed the crime?

A I would see nothing unusual in launching a manhunt.

I think the thing that perhaps at the time I felt was highly unusual was the large force of armed men which were present there and the number of vehicles which were in evidence. I think this too was a major concern of the residents of the Reservation.

Q You have gone on beyond my question in your response, but that's fine.

A I am sorry.

Q Have you ever seen, have you ever been placed in that set of circumstances before or since?

A Following a murder, you mean?

Q Yes, a murder, two deaths of this kind and nature.

{4228}

A I have never been in a similar circumstance as that particular one, no.

Q So you wouldn't have any basis to draw any conclusions, then it would be fair, would it not, that there was nothing necessarily unusual about it?

A Well, I just --

Q (Interrupting) Answer my question "yes" or "no" if you can.

A I don't think I can answer "yes" or "no".

Q Give me the best you can then, fairly and squarely.

A It was my impression at the time that I was very surprised and startled at the size of the force.

Q Now, this is after the 26th of June, right?

A That's correct.

Q You are not saying that this force was there on the 26th or before the 26th of June?

A No, sir.

Q All right. Now, I just have one other question: In response to, I believe, the last question of counsel or maybe the next to the last question, you said in response to that question -- and I know the first two words are correct, I am not sure of all that followed -- but you said in contrast you found at the time you were there and the things I have just queried you about, a climate of extreme tension and so forth.

Now, what did you mean by "in contrast", were you comparing {4229} that time to some conditions that you observed prior to that time?

A I had been in close contact with the Reservation for the previous six months actually, and we had been concerned about the rising climate of fear and tension on the Reservation; but during my visit following the June 26th shooting, it was obvious that this climate, this tension and fear, was much greater than it had ever been before in my observation.

MR. HULTMAN: I have no further questions, thank you.

MR. TAIKEFF: No questions. The witness may be excused if the Court please.

THE COURT: You may step down, and you are excused.

THE WITNESS: Thank you.

(Witness excused.)

(Counsel confer.)

MR. TAIKEFF: Defense calls Special Agent Coward.

Your Honor, while the witness is being advised of his appearance, I would like to note for the record that Defendant's Exhibit 75 in evidence, which is a portion of the 302 concerning recordation of certain radio transmissions, or relating to the subject of certain radio transmission, has been expanded by consent of counsel for both sides to now include Pages 3 and 4, so that Defendant's Exhibit 75 consists of the first four pages of Special Agent George O'Clock's 302; and with your Honor's {4230} permission, I would like to read one entry from the fourth page to the jury.

THE COURT: The record may show that the additional two pages have been added to that exhibit, and you may read the entry that you refer to.

MR. HULTMAN: The Government has no objection.

MR. TAIKEFF: Thank you.

The entry reads as follows: 1:26 p.m. Adams to Coward, south of Oglala, pickup came in here and he just left, can't get any BIA people on it. We have, can you get on Channel 1 and tell them to turn that tower on?

That's the end of the entry, your Honor.

FREDERICK COWARD, JR.,

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

MR. TAIKEFF: Your Honor, may the witness be advised that he continues to be under oath from his earlier appearance?

THE COURT: The witness is so advised.

DIRECT EXAMINATION

By MR. TAIKEFF:

Q Agent Coward, I am placing before you a single sheet of paper which has been marked Defendant's Exhibit 219 for identification. I am also placing next to that piece of paper a pile of documents which I think you will recognize as being {4231} a number of 302's.

Now, sir, in connection with the piece of paper, the single piece of paper -- do you wish to look through those 302's?

A I will wait if you wish.

Q Go ahead and do that. It may be helpful if you do that right away.

A (Examining).

Q Now, you recognize that the pile of 302's concern this case, correct?

A Yes, sir.

Q And they are 302's of yours and three of your colleagues, namely, Adams, Waring and Skelley, is that right?

A Yes, sir.

Q Now, with respect to yourself, there is a copy of your 302 in that pile, is that correct?

A Yes, sir.

Q And that 302 in essence covers the events, or at least your main report concerning the events of June 26th, is that right?

A That's correct.

Q And on the face of that report, it shows that the date of interview, which also means date of event, as June 26th?

A I believe so. (Examining) Yes.

Q And date of dictation, June 30th?

A Yes, sir.

Q And date of transcription or typing, July 3?

{4232}

A That's correct.

Q All 1975?

A All 1975.

Q And the typist apparently was a person with the initials "p.m."?

A Yes, sir.

Q Now, will you look at the marked exhibit and tell me whether that chart lists your name, a fair description of what that 302 generally refers to, and the date of interview, date of dictation, date of transcription and the typist's initials accurately?

A (Examining) Yes, sir, it does.

Q O.k. Now, you find entries, do you not, for Gary Adams, Fred Coward -- you are Fred Coward -- Gerard Waring and Edward Skelley?

A Yes, I do.

Q And you have six additional 302's other than the one which is your own 302, about the events of June 26th. Would you check them to see that the corresponding entries on the marked exhibit are accurate?

A Well, there is five to begin with that I have here in front of me other than mine.

Q Other than yours?

A Yes, sir.

Q You have two of them for Gary Adams?

{4233}

A (Examining) Two of Gary Adams'.

Q All right. Would you check the information on those against the entries on the marked Exhibit, please?

A (Examining).

Q May I conclude from the nod of your head that you find those entries to be accurate?

A Yes, they are.

Q O.k. Now, do you find -- by the way, before we go -- well, I don't mean to retard your looking in any way.

The next person is Waring, do you find two 302's relative to Waring's activities?

A Well, I can see one, and then here is another one where he is combined.

Q Yes, where he is combined with other agents, a so-called crime scene examination is what I am talking about.

A O.k.

Q All right. Would you check the entries on the marked exhibit with respect to Agent Waring for the particular category of information I have mentioned?

A (Examining).

MR. SIKMA: Your Honor, may I inquire, is counsel talking about the particular information concerning the dates or all of the information in all of these various 302's?

MR. TAIKEFF: No. The piece of paper which is before {4234} the witness, your Honor, lists -- the document is broken down into four categories by name of agent, and then describes in the most general terms the subject matter, the overall subject matter, the date of interview, the date of dictation, the date of transcription and the typist; and the witness has thus far said that the entries are fair representations of what the reports show, and I am almost finished going through the chart with him.

THE COURT: Very well.

A (Examining) O.k., as far as Waring they appear to be like you have it on the sheet.

Q (By Mr. Taikeff) O.k. Now, Waring's crime scene, 302, which is the second one listed for him, other than the exhibits which are attached, is a four page, single-spaced report, is that correct, or 302, if you prefer?

A Which one are you saying again, please?

Q That's the Waring, so-called crime scene, 302.

A Crime scene, o.k. (Examining) I understand, how many pages is it?

{4235}

Q It's a four page single-spaced plus exhibits which are attached?

A Plus exhibits, yes, sir.

Q Okay. Now, that leaves only Agent Skelly and you should ave two, 302's relating to Skelly's activities?

A Two? I have one

Q All right. Is that a multipage report or a single page report?

A Well, the one that I have in front of me -- oh, here's another one. It's two.

Q Right. Now, will you check those entries.

A Yes, sir.

Q Accurate on Defense Exhibit 219 for identification as to the information shown?

A Yes, sir.

Q Thank you Now, sir, I would like to have you direct your attention to the subject of the sightings made at a distance from near Highway 35. Do you recall that involves one way or another with you and a BIA officer by the name of Stoldt?

A Yes, sir.

Q Now I'm showing you Defendant's Exhibit 195 for identification which is a one-page 302 which reports in substance Stoldt telling you that he saw Jimmy Eagle.

A That's correct.

Q And that's the report that you testified earlier, although {4236} it says date of interview June 28th, it was really June 26th?

A That's what I remembered.

MR. SIKMA: Your Honor, I would object to this line of questioning as having been gone into extensively on cross-examination of this witness.

MR. TAIKEFF: That was a foundation question, Your Honor.

MR. SIKMA: Case in chief and notwithstanding the fact that it's a foundation question it's the same area of inquiry.

MR. TAIKEFF: I don't think that's in dispute, those facts. I was just laying the foundation so that the subject matter would be clear to the jury.

THE COURT: Proceed.

MR. TAIKEFF: Thank you.

Q (By Mr. Taikeff) Now, are you certain that you obtained that information from BIA Officer Stoldt when you were talking informally in an automobile in which you were riding together in the latter part of the day?

A Well, as I've stated before that the information contained in this 302 was a result of a brief conversation that Marvin Stoldt and I had along with Vincent Breci on our way back to the Harry Jumping Bull residence after, you know, our situation that day.

Q Okay. Everything that you say is clear except the one thing {4237} you didn't specifically confirm which is the thing I was asking you about, is: Was it in a car that you were all together?

A Oh, yes. Yes, absolutely. And you are sure of that, as sure as you can be from your memory?

A As sure as I can be from my memory.

Q Okay. That's what I wanted to find out. Now, sir, I'm going to place before you Defendant's Exhibit 194, part of which is in evidence now and can be referred to by reading aloud if necessary. However, I wish to caution you that the part of it which is in evidence begins here (indicating) next to that little blue dot at the bottom of page 3, and continues down to this blue dot (indicating) near the bottom of page 4, and only those three paragraphs are in evidence.

A Do you want me to read those?

Q You can look at them to refresh your recollection concerning that report. I would like to just make sure that the jury understands that this is a report of an interview you conducted of Marvin Stoldt on or about September 4, 1975. And that, by the way, was the second time that you ever spoke to him in your life?

A Oh, that's not true.

Q On the subject of identifications?

A On the subject of identifications, yeah.

Q Okay. Good. Just so the jury knows which report we're {4238} referring to.

A Okay.

Q Now, sir, on page 4 of that exhibit the first full paragraph, the first sentence says: "Stoldt stated that during the first statement he had given to the FBI a few days after the shooting of the agents he told the agents then, one of the agents being Agent Coward, that he saw Jimmy Eagle in the group that he had just identified but was not absolutely positive during the interview."

You dictated those words, did you not, to the stenographer who eventually typed this report?

A I did.

Q And presumably he or she typed what you dictated?

A Yes, sir.

Q And then you initialed the report as being accurate as far as you could tell at that particular time?

A To the best of my knowledge, yes.

Q Yes. Well, can you offer us some explanation as to why your report in September makes reference to a statement Stoldt purportedly gave to the agents, including you, "a few days after the shooting".

MR. SIKMA: Your Honor, I believe this matter was covered in cross-examination of this witness at length. I think it was in pages of the transcript from 1209 to 1369. This witness was cross-examined at length about this. It's {4239} totally repetitious and irrelevant.

MR. TAIKEFF: Your Honor, this is the first time I've been able to read to the jury because it's the first time we've had in evidence the actual text of that paragraph. And now we've had the testimony of Marvin Stoldt, and under the circumstances I think it appropriate for this question to be put to this witness at this time.

THE COURT: I will allow this question, but I'm not going to allow you to go through the same material that we went through --

MR. TAIKEFF: I have no intention of doing that, Your Honor.

THE COURT: Very well.

A Well, the only answer in reading this that I can give is that it's a mistake that I made based on what I'm reading here, and the only explanation that I can give is that when I prepared this 302 I would have gone back to the other 302 that was dictated the 28th and used it for purposes of putting down the information on the paper.

Now, as I sit here and tell you the only two times that I ever discussed this type of situation with Marvin Stoldt was on the day that we drove back from the Jumping Bull's and the day that he came in the office.

Q (By Mr. Taikeff) So if I understand what you are saying you had reference to the earlier 302 which is Defendant's {4240} Exhibit 195 for identification and that sort of mislead you into what went into the second 302 because of the error which is in the lower left-hand corner of that exhibit, am I right about that?

A Well, what I'm saying is that to refresh my memory, you know, of a particular time we discussed there's so many things happened, you know, different times that we're talking to people and that I would have gone to the file and used it as a reference, yes.

Q Well, as a general rule would you say that if you experience something that your memory as a general rule is better close to that event than further from that event?

A Well, it depends. It depends --

Q But generally speaking, is that not your experience with your own memory?

A With my memory, it is, yes, sir.

Q All right. I think we probably all have the same experience, don't you?

A Yes.

Q Now, when you were talking with Stoldt in September, that was a little more than two months after the event, if you made any reference to your 302, explain why you did not recognize the error of the June 28th, only two months later, considering the fact that in this courtroom you instantly recognized that fact and said, "Oh, that date is wrong, that couldn't be the 28th".

{4241}

A Well, the only way that I recognized that is because of the fact that some things, some impulsive thing that you asked me a few weeks ago about this, you know, it triggered my memory, it refreshed it.

But to say that I would have had the same response, or the same feelings the day I interviewed him I couldn't say that. I mean, certain things will trigger it.

But as I sit here and tell you now the only two times I've discussed this with Marvin Stoldt was on the day we came back and the day that he came in, and that's the truth.

Q This second sentence of that paragraph which concludes the paragraph says: "Stoldt continued and stated, but since then I have continually thought about what happened on June 26, 1975 and at this time and during this interview he