VOLUME XXI

Pages 4446-4679

{4446}

WEDNESDAY MORNING SESSION

April 13, 1977

Pursuant to adjournment as aforesaid, at 9:07 o'clock, a.m., on Wednesday, April 13, 1977, the Court met, present and presiding as before; and the trial proceeded as follows out of the presence and hearing of the jury, the Defendant being present in person:

THE COURT: Exhibit 88 will not be received.

I have examined the notes of Special Agent Doyle and find nothing exculpatory in those notes which would require disclosure under the doctrine of Brady versus Maryland.

Are counsel ready for the jury?

MR. TAIKEFF: Does your Honor want to proceed with evidence before the jury, or does your Honor wish to proceed with the offer of proof?

THE COURT: Is Myrtle Poor Bear present?

MR. TAIKEFF: Yes, your Honor, she is.

THE COURT: And available?

MR. HULTMAN: Excuse me, your Honor.

The only request I would make, your Honor, is I was left with the impression last night from counsel that we would start with Mr. Zigrossi, and he does have other things that he does need to get to. I know he has made some arrangements.

MR. TAIKEFF: I am reminded by Mr. Hultman, that is {4447} quite true. I think he should be excused as quickly as possible.

THE COURT: Then we will have the jury brought in and proceed with the examination.

MR. TAIKEFF: And then there may be another witness on for a very short period of time, and I assume we may call that witness as well.

THE COURT: Very well.

The jury should be brought in.

(Whereupon, at 9:10 o'clock, a.m., the jury returned to the courtroom; and the following further proceedings were had in the presence and hearing of the jury:)

THE COURT: You may proceed.

MR. TAIKEFF: The defense calls Norman Zigrossi.

NORMAN ZIGROSSI,

being first duly sworn, testified as follows:

MR. TAIKEFF: May I inquire, your Honor.

THE COURT: You may.

DIRECT EXAMINATION

By MR. TAIKEFF:

Q Mr. Zigrossi, would you be kind enough to tell the Court and jury what is your occupation?

A I am Assistant Special Agent in Charge of the Federal Bureau of Investigation.

Q How many Special Agents are there in the United States of {4448} the Federal Bureau of Investigation?

A Approximately 8,000.

Q And how many Assistant Special Agents in Charge are there?

A Approximately 60.

Q So then it would be fair to say that you are a rather important and high-ranking FBI official?

A Thank you, sir.

Q Is that true?

A Yes.

Q Now, when did we meet for the first time?

A Yesterday, I believe.

Q And did we speak about the things that I would ask you on the stand today?

A Yes, we did.

Q And for how long did we speak?

A Approximately five minutes.

Q Now, you had a very special connection, did you not, with the investigation of the deaths of the two agents which occurred on June 26, 1975?

A Yes, I did.

Q Would you summarize the essential aspects of that to the Court and jury?

A Well, essentially I was what you would consider the No. 1 man handling the investigation.

Q Prior to the time or prior to June 26, 1975, where were {4449} you assigned in the FBI?

A At Washington, D.C.

Q In the headquarters?

A Yes, sir.

Q And either on June 26th or June 27th there was a change in your status or at least in your assignment, is that right?

A Yes, the morning of June 27th.

Q To what office were you then assigned?

A I was then transferred to Rapid City, South Dakota.

Q Was that as the Assistant Special Agent in Charge?

A Yes, it was.

Q You were the No. 2 person in the Rapid City office, but the No. 1 person on this particular investigation, is that a fair summary?

A Well, not exactly. You stated No. 1 person. I did have a superior in Pine Ridge that I worked with in conjunction with the investigation.

Q O.k. Now, during the several days that immediately followed June 26th, approximately how many agents did you have working on the Reservation?

{4450}

A Approximately a hundred and seventy-five.

Q And did the agents have periodic meetings and conferences concerning the progress of the case, leads to be followed, important things discovered, et cetera?

A Yes, they did.

Q How frequently did that occur, let's say within the first five days?

A About once a day I'd say.

Q And were there some days when it occurred more than once a day?

A I don't believe so. I believe essentially it was one conference a day.

Q Now, during the four days following the incident was the name Leonard Peltier ever mentioned at any of the conferences?

A Yes, it was. I believe it was.

Q How many times?

A I can't recall the number of times. It would be difficult to say.

Q When we discussed this question yesterday did I put the question to you that I just put to you about mention of Leonard Peltier's name?

A Yes, you did.

Q And at that time what was your answer?

A At that time I didn't recall and I said --

Q Just tell me what your answer was. What did you say to me {4451} in response to my question yesterday afternoon?

A That I didn't recall.

MR. TAIKEFF: I have no further questions.

CROSS-EXAMINATION

BY MR. HULTMAN

Q Mr. Zigrossi, did you respond to counsel in any questions that he asked you yesterday as fairly and honestly as you could?

A Yes, I did.

Q And you could have refused to even talk to him yesterday, could you not?

A Yes, I could have.

Q And you chose to go ahead and visit with him about anything he wanted to talk about; isn't that right?

A Yes, I did.

Q When was it with reference to the four days that counsel has referred to, when was it the first day that you had anything to do with the investigation at all? Do you remember what day that was?

A Yes. It was the 27th, when I arrived at Rapid City.

Q All right. Do you remember about when that was on the 27th?

A Yes. I arrived, I believe I landed at 5:30 P.M.

Q So wouldn't have been until the next evening that you had anything to do with anything, is that a fair conclusion for me --

A Yes, that's correct. I didn't get to Pine Ridge until the next day.

{4452}

Q So any meeting that you would have basically attended of the kind and nature that counsel asked you about, could it have even been the next day which was two days after the event?

A That's correct, yes.

Q All right. During the course of the early days of the investigation, the times that counsel asked you about, what was it that the agents that were working on the case, what was it just in a nutshell that they were doing?

A Well, we were actually gathering any and all information that we could from the citizenry at Pine Ridge and also the thrust of our investigation at that time was to identify the individuals whose names we had through an interview with Angie Long Visitor.

Q All right. When did that interview take place?

A I believe it took place, and I'm not certain either, I think it was probably the day of the 27th. But I'm not certain because as I say I came in late and I wouldn't know for sure.

Q Now, at the time of that interview did she give you, I'm not saying you, I'm talking about whoever it was that she talked to, did she give some names of some people that were there that day of the 26th?

A Yes. As I recall essentially it was a lot of nicknames and first names.

Q All right. So that the information you were going on at that particular time then was primarily what Angie Long Visitor {4453} had given and those were nicknames and first names?

A That's correct.

Q To your knowledge she didn't give any full names of any kind; is that right?

A To my knowledge she did not.

Q Now, of the -- is it fair for me to conclude at that particular time anybody and everybody who generally were in the Pine Ridge or the Jumping Bull area could have been somebody that you were trying to seek any information about?

A That's correct

Q Is it fair for me to conclude that of the approximately one hundred and seventy-five agents that you said ultimately were involved, that included in those were those that were doing the work that had to be done on all the other cases that you had pending on the Pine Ridge and within the jurisdiction of that particular office of the Federal Bureau of Investigation?

A Yes.

Q And that included areas other than the reservation itself, did it not?

A Yes.

MR. HULTMAN: I have no further questions.

REDIRECT EXAMINATION

BY MR. TAIKEFF

Q I think you said on your cross-examination that immediately after the incident one of the primary things to do was to identify the people who had been in and around that area at the {4454} time of the incident; is that a fair summary of what your testimony was on cross-examination?

A Yes.

Q Now, it is a fact, is it not, that there are hardly any more important things to do when investigating a crime than discovering the identity of the people who are either participants in one way or another or witnesses; is that a fair statement?

A Yes, I think it is.

Q Now, there came a time relatively early in the investigation when someone briefed you on the situation as it then existed; isn't that correct?

A Yes, that's correct.

Q And how many agents did you assign to interview to find and interview a person by the name of Marvin Stoldt, a BIA police officer?

A I don't recall assigning anyone to interview Marvin Stoldt.

I personally do not have any recollection of assigning anyone.

Q Anybody ever discuss Marvin Stoldt with you during this important phase of discovering the names of the people who may have either been there and hence were eyewitnesses or may have been participants? Yes or no.

A Please rephrase your question, or at least repeat it. Are you speaking in terms of the, immediately after the incident or down the line?

{4455}

MR. TAIKEFF: May the question be read back, Your Honor?

THE COURT: Question may be read back.

(Question read back: "Question: Anybody ever discuss Marvin Stoldt with you during this important phase of discovering the names of the people who may have either been there and hence were eyewitnesses or may have been participants? Yes or no.")

A At that particular time I do not recall discussing Marvin Stoldt with anyone.

MR. TAIKEFF: I have no further questions.

MR. HULTMAN: I have no further questions.

THE COURT: You may step down.

MR. TAIKEFF: Your Honor, may the witness be released?

THE COURT: Any objection?

MR. HULTMAN: No, none, Your Honor.

THE COURT: Witness is released.

MR. TAIKEFF: Defense calls Robert Ecoffey.

ROBERT DALE ECOFFEY,

having previously been sworn, testified as follows:

DIRECT EXAMINATION

BY MR. TAIKEFF

Q I'm placing before, Mr. Ecoffey, Defendant's Exhibit 87 for identification, and I would first like to ask you whether you realize that the oath you took to tell the truth the last time you appeared still applies to you now?

{4456}

A Yes, I do.

Q Now you previously identified that document as a 302 which contained a copy of a report you wrote on June 26 concerning your activities of June 26th, is that right?

A That's right.

MR. TAIKEFF: I offer it in evidence.

MR.HULTMAN: I object, Your Honor. If he has any questions to ask this witness I have no objection, but I do object to the report itself going in.

MR. TAIKEFF: Your Honor, I originally asked this witness to lay the technical foundation. It was suggested if I want to offer it he should be here so he could answer questions on cross-examination. The record at page --

MR. HULTMAN: May we approach the bench, Your Honor?

THE COURT: You may.

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

MR. HULTMAN: Your Honor, again here we go, it's the same old procedure, we're going to put a document in which is what this witness has made some memoranda about and I object on the grounds that the best and proper method is to ask whatever questions it is of this witness so I do have a chance to cross-examine on whatever it is the testimony's going to be. What Counsel is trying to do is put a report in. He can then go back to refer to that, point to any one of {4457} ten thousand items in that report I've had no chance to cross-examine.

MR. TAIKEFF: I'll put in one paragraph then.

MR. HULTMAN: You do whatever you want to do with the witness but I'm going to object to anything as far as the report itself because there is no foundation.

MR. TAIKEFF: I just laid the foundation. Page 750 and 751 just reaffirmed the foundation. I made the big business record foundation.

THE COURT: The report will not be received under the business record exception to the hearsay rule.

MR. TAIKEFF: May I question him from the report?

THE COURT: Whose report is it?

MR. TAIKEFF: It's his report.

MR. HULTMAN: His report.

THE COURT: It is his report?

MR. TAIKEFF: Yes, Your Honor.

THE COURT: All right.

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

Q (By Mr. Taikeff) I'll have to stand here so both of us can see this document at the same time.

MR. TAIKEFF: For the record I'm looking at enumerated page 5.

Q (By Mr. Taikeff) Would you tell the jury, sir, whether {4458} you wrote in your report concerning your activities towards the end of the day the following paragraph: "I went back to where Eastman and Glen Little Bird was and advised them and Dave Price of what I found. I also found the red International in which the agents chased into the Jumping Bull res," r-e-s. "James Eagle was supposed to be in that red International."

Did you write that paragraph?

A Yes, I did.

MR. TAIKEFF: I have no further questions.

CROSS-EXAMINATION

BY MR. HULTMAN:

Q Mr. Ecoffey, other than the bold statement, let me ask you questions about what led you to that particular writing of that statement. Do you remember at an earlier time, either that day or the day before, that you personally had gotten a report that Jimmy Eagle had left in a particular colored vehicle?

A On a night before at Wallace Little's residence, we were there looking for Eagle. They advised that he had left in a red pickup.

Q And in fact you reported that in a 302 that you gave to William Murphy?

MR. TAIKEFF: Objection. Hearsay and competence.

MR. HULTMAN: This is cross-examination and I'm getting at a point of a prior consistent statement, Your Honor.

MR. TAIKEFF: Your Honor, I am basing my objection on the phraseology of the question. He's asking him about the {4459} content of the 302 which he did not write. Same objection the government has made many times in this case.

MR. HULTMAN: I'll change the question.

Q (By Mr. Hultman) Did you have a conversation with an agent William Murphy about the events the night before?

A Yes, I did.

Q And did you in fact tell him what in fact you had learned the night before?

A Yes, I did.

Q Was that the fact that when you had made the inquiry at the Wallace Little residence that the person there replied that Jimmy Eagle had just left in a red pickup?

A Yes.

Q That was a fact, was is not? I mean, the report had been given to you that night when you asked the question?

A Yes, it was.

Q So that you had this information in your mind the next day and evening when you wrote what Counsel has asked you about, did you not?

A Yes, I did.

Q On that evening of the 26th with that information which you knew, did you have an occasion in the course of walking up the road in the area of Jumping Bull's to observe a vehicle of some kind?

A Yes, I did.

{4460}

Q And would you tell the jury where the vehicle was that you observed?

A It was in line with a bunch of other junk cars.

Q It was in line, one of a series of junk cars, is that right?

A That's right.

Q And did what you had heard the night before and anything else trigger your mind to a conclusion at that point?

A Yes, it did.

Q And would you tell the jury what was the conclusion that was triggered in your mind at that moment.

A Well, earlier in the day someone relayed to me some information that the two agents had chased a red vehicle van or pickup that they weren't sure what type and I was going over the crime scene area and I happened to come to these junked cars and they had parked in line with these cars with the red International pickup. I just assumed this was the one that had been chased in there because it was the only red vehicle around the area at this time.

Q And so you then reported that in your 302, is that right, the part that Counsel just asked you about?

A That's right.

Q It had no other significance other than what you've indicated in here, is that right?

A That's right.

{4461}

Q Anymore significance than any of the number of other items you reported in your 302 at that time?

A That's right.

MR. HULTMAN: I have no further questions.

MR. TAIKEFF: May we have a moment, Your Honor, please?

THE COURT: You may.

REDIRECT EXAMINATION

BY MR. TAIKEFF:

Q Now the night before when you received the report that Jimmy Eagle had left a certain residence in a red pickup, were you basing that on what someone told you or on what you saw?

A This is on what someone told me.

Q That was someone at that particular residence?

A Yes, sir.

Q Can you say for us the words that that person said to you?

A We pulled into the residence and asked if Jimmy Eagle was there and she advised, no, that he had just left in a red pickup.

Q That's basically what you were told then?

A Yes.

Q So I gather when you left that particular location, when you left that particular location no one had said to you at that residence a red International, right?

A That's right.

Q Now when you reported that matter to the FBI, you didn't {4462} say to the FBI, "A red International," you said a "red pickup"?

A That's right.

{4463}

Q Now, when you wrote in your report that you found that red International which the agents chased into the Jumping Bull residence, and that James Eagle was supposed to be in that red International, where did you get the idea that James Eagle was supposed to be in the red International?

A Well, I just said sometime in that morning when I came to the Jumping Bull residence, someone had mentioned to me or it came over the radio, or something, that agents had chased a red vehicle, van or pickup into the area; and upon searching the immediate crime scene area, this was the only red vehicle that was in the area there.

Q Now, I note that you said that you were told or heard that the agents chased a red vehicle, van or pickup. Are you saying it that way because you are not sure what you heard on the radio?

A No, I am not sure. I am just --

Q (Interrupting) Why do you say all three words, "vehicle, van, pickup"?

A O.k. Well, they just chased a vehicle in there. I am not sure what kind it was.

Q I show you Defendant's Exhibit 98 in evidence. In the foreground there is a green sedan. Do you see a vehicle in the background?

A Yes, I do.

Q What is that, if you know?

A It is a red vehicle.

{4464}

Q It is a red vehicle. What kind of a vehicle is it?

A It looks like the vehicle that I found.

Q What style vehicle is it, is it a schoolbus?

A No. It is a pickup-like.

Q Do you think "pickup" is a dirty word?

A No, I don't.

Q All right. I am just wondering about that. Now, I show you Defendant's Exhibit 95. What is that?

A That's a red pickup.

Q What kind of a pickup?

A International.

Q Is it any old red International pickup?

A No, it isn't.

Q Is it a special one, a definite one?

A Yes. This is the one that I put in my report as finding.

Q Now, I show you Defendant's Exhibit 93. Is that that same red International pickup?

A Yes, it is.

Q The color is slightly different in that photograph, isn't it, than the one that I just showed you before, that the red came out a little different in the photograph, this red versus that red (indicating)?

A Yes. I would say the same.

Q It looks the same to you?

A Yes.

{4465}

Q It is the same vehicle in both 93 and 95, isn't it?

A Yes, it is.

Q Now, 93 is a photograph taken at what location, can you tell?

A It appears to be the location of Jumping Bull's where the junked cars were.

Q And it looks in that photograph basically the way it did when you first saw it up by those junked cars, didn't it?

A Yes, it did.

Q And the windshield was broken, wasn't it?

MR. HULTMAN: Your Honor, I haven't objected to the clear leading questions that have been going on to this witness. We are on redirect, and I am now going to object to the leading questions. If he wants to ask him to describe what he saw, I have got no objection. I do object to the continually leading questions.

MR. TAIKEFF: Even though I think I am justified, I will not ask leading questions.

THE COURT: Very well.

Q (By Mr. Taikeff) When you first looked at that vehicle, what was the condition of the windshield?

A It was broken out.

Q And did you see any signs whatsoever that that vehicle was capable of being driven?

A I didn't really notice. I didn't look under the hood or {4466} anything, just looked at the vehicle.

Q Did you find any keys for the vehicle?

A No, I didn't.

Q Did you find any indication in its appearance, its general appearance, that it had not been driven for a long time?

A No, I didn't.

MR. TAIKEFF: I have no further questions.

RECROSS EXAMINATION

By MR. HULTMAN:

Q I just have one question, and it is a play on words.

Is this vehicle known in the parlance as an International Scout?

A Yes, it is.

MR. HULTMAN: No further questions.

THE COURT: You may step down.

(Witness excused.)

MR. TAIKEFF: Your Honor, we are now prepared to take up the other matter with the Court.

THE COURT: We are approaching the end of the evidence in this case, and there is a legal question before the Court on which another witness will have to testify in order for the Court to make a ruling on the legal question; and that must be done out of the presence of the jury, so the jury will be excused from the courtroom at this time.

(Whereupon, at 9:42 o'clock, a.m., the Jury left the {4467} courtroom; and the following further proceedings were had out of the presence and hearing of the jury:)

MR. TAIKEFF: May we proceed, your Honor?

THE COURT: You may proceed.

MR. TAIKEFF: Defense calls Agent Skelly.

(Counsel confer.)

EDWARD A. SKELLY, JR.,

having been previously duly sworn, was recalled and testified further as follows:

MR. TAIKEFF: May I proceed, your Honor?

THE COURT: You may proceed.

REDIRECT EXAMINATION

By MR. TAIKEFF:

Q Now, Agent Skelly, you understand, don't you, that your oath continues to apply to this testimony?

A Yes, sir, I do.

Q I am going to place before you certain documents so that we can identify them in connection with this offer of proof. Defendant's Exhibit 118, 119, each of them being a 302; 115, 116 and 117, each of them being an affidavit. Now, taking them one at a time, No. 118, is that a document you have ever seen before?

A Yes, sir.

Q It is a 302 of an interview, is it not?

A Yes, sir, it is.

{4468}

Q With whom?

A Myrtle Poor Bear.

Q What was the date of the interview?

A On February 24, 1976.

Q Was that the first time you ever met Myrtle Poor Bear?

A Yes, sir, I believe it was.

Q And I can assume, therefore, it was the first time you ever interviewed her, you never spoke to her on the telephone or anything like that?

A Not that I can recall, I never did.

THE COURT: Excuse me. What was the date?

THE WITNESS: February 24th, 1976.

THE COURT: Thank you.

Q (By Mr. Taikeff) Now, take a look at Defendant's Exhibit 119. Did you ever see that document before?

A I believe I probably did, but I can't be certain.

Q On its face it appears to be another 302, an interview of Myrtle Poor Bear apparently conducted by Special Agents William Wood and David Price, is that correct?

A Yes, sir.

Q Now, how about 115, 116 and 117, ever seen those documents before?

A Yes, sir.

Q Generally speaking, what are they?

A Affidavits of Myrtle Poor Bear.

{4469}

Q And the first of those documents, 115, shows that it was sworn to on the 19th day of February, 1976, correct?

A Yes, sir, that's what it shows.

Q And the next one sworn to the 23rd day of February, 1976?

A Yes, sir.

Q And the next one sworn to the 31st day of March, 1976?

A Yes, sir.

Q Do you have any personal knowledge concerning either the signing or the swearing to of these three affidavits?

A The swearing to or the signing of these?

Q Yes. Anything about when and where they were signed, who was present, when they were signed, who signed them, anything about the time and place of the taking of the oath concerning the truthfulness of them, or any of those factors or anything reasonably related to those factors.

A The only thing that -- along those lines that I can recall was that after they were prepared, or the affidavit was prepared, it was turned over to be forwarded to the Canadian authorities.

Q In connection with the extradition proceedings of Mr. Peltier?

A Yes, sir.

Q Can you tell us who authored or wrote -- I am not talking about the typist -- the affidavits?

A I would assume it was Myrtle Poor Bear.

Q What is the basis of that assumption, just a general {4470} assumption?

A The fact that her name appears on it, that she had given the affidavit.

Q Well, I am not disputing with you the fact that it appears that she gave the affidavit; but I am asking you about who arranged the sequence of words, who chose the words, who wrote the content of it?

A I have no firsthand knowledge of who did that.

Q Do you know whether it was an agent of the FBI?

A I would assume so, but I don't know for sure.

Q Do you know the location of the premises where the affidavit was dictated, assuming it was dictated, and then typed?

A In Rapid City, South Dakota, I believe that the -- well, I don't know for sure. I would think at the Federal Building.

Q Now, do you know of any other documents -- I am speaking of 302's, memoranda, notes, affidavits, depositions, transcripts, or any other writing which records statements of Myrtle Poor Bear concerning the events of June 26, 1975 -- I am asking of your own knowledge or in connection with your official duties?

A Insofar as an interview that I conducted perhaps or --

Q (Interrupting) An interview you conducted, an interview that a fellow agent conducted, another affidavit she may have signed at some particular time that you became aware of in connection with your official duties -- what I am really trying to find out is, are the five documents which are in front of {4471} you the only documents that exist as far as you know concerning the subject of Myrtle Poor Bear and what she may have had to say about June 26, 1975?

A As far as I know right now, yes, sir.

Q That's it?

A As far as I can recall.

Q All right. I would like to call your attention to the fact that you acknowledged that Defendant's Exhibit 115 appears to have been sworn to on the 19th day of February; and that the exhibits 118 and 119, which are 302's of interviews of her, show that the interviews took place on February 24, 1976, and March 31, 1976, respectively.

Now, can you explain the existence of the first affidavit, Defendant's Exhibit 115, and the absence of a 302 that has a date of February 19th or earlier?

MR. HULTMAN: Well, your Honor, I object on the grounds that the documents -- have no objection to what this individual's knowledge may be, but for him to speculate on documents, one, that he did not participate in or doesn't have any knowledge about would be pure speculation, and I enter an objection for the record for that purpose.

THE COURT: The question was whether or not he had any knowledge.

MR. TAIKEFF: That was precisely the point. I was about to ask whether the record could be read back because, {4472} your Honor, it was clear, crystal clear, I asked him if he had any knowledge.

Now Mr. Hultman made a speech and now the witness is presumably informed as to what Mr. Hultman would like him to say.

MR. HULTMAN: I object on the record, your Honor. I have heard this accusation now about six times. I have a right to object, and I am going to continue to object, and I think it is highly improper for counsel to constantly make this reference on the record that there is something improper on my part, and I want the record to so reflect.

MR. TAIKEFF: In my opinion the way to do that is to make the objection, make the objection on the grounds of competence. That's what the Rules of Evidence require, not a speech from Mr. Hultman to the witness.

THE COURT: The reporter may read back the question, and the witness may answer.

(Question was read by the reporter.)

MR. HULTMAN: I object on the grounds that it gives the clear impression that he knew, your Honor.

MR. TAIKEFF: Your Honor, the question is: Can you explain the apparent absence of a 302?

MR. HULTMAN: I object, that that assumes something that is clearly not a part of this record.

MR. TAIKEFF: I will withdraw the question and lay a {4473} foundation for it.

THE COURT: Very well.

Q (By Mr. Taikeff) When a Special Agent of the Federal Bureau of Investigation interviews a person, and particularly when that person has some information about an incident being investigated, is it not the common practice to write a 302 to record that event and what was said?

A In most cases, yes, sir.

Q And sometimes it happens that after a person is interviewed that person might be asked to sign a statement, perhaps a typed statement, is that not sometimes the case?

A Yes, sir.

Q And sometimes, if necessary, a person may be asked to make that statement under oath in the form of an affidavit, is that correct?

A Yes, sir.

Q And sometimes a person may then be asked to come and testify before a Grand Jury and testify under oath, isn't that correct?

A Yes, sir.

Q Do you know of any practice or regulation of the Federal Bureau of Investigation that says if you decide to put someone's statement in the form of an affidavit, you shouldn't write a 302 about your contact with that person?

A No, sir, I don't know of any.

{4474}

Q Now, therefore, if there was an affidavit signed on February 19th, 1976, as a general rule, if you had no knowledge of the subject at all and you were looking at the paperwork here, wouldn't you at least go looking for a 302 that showed an interview on or before February 19, 1976?

A Not necessarily, sir. The fact that the affidavit was taken could very well substitute for the FD-302.

Q I understand the possibility that it might. I am talking about the fact that there is no 302 indicating how it came about, that there was initially any contact between the FBI and Myrtle Poor Bear.

Do you find anywhere in any of those documents any reference to the initial contact with Myrtle Poor Bear?

{4475}

A Well, not having, not having read the whole thing, no. I would say no.

Q Take a look at the two, 302's and in particular the preamble paragraphs of each.

MR. HULTMAN: Now, Your Honor, I object to any further question. This clearly calls for speculation on the part of this witness.

MR. TAIKEFF: I'm not going to ask for any speculation. I asked him to look at the documents. That's not speculation.

THE COURT: I will be allowed in the offer of proof.

MR. TAIKEFF: Thank you, Your Honor.

A Yes, sir, I've looked at both.

MR. TAIKEFF: Excuse me one second, please.

Q (By Mr. Taikeff) Now, your 302 which is Defendant's Exhibit 118 is the one with the earlier interview date; and it reveals in the preamble paragraph that she was contacted at the Rapid City resident agency of the FBI; isn't that correct?

A Yes, sir.

Q Now, at that time was she an employee of the FBI?

A No, sir.

Q How did it come about that you knew that she was there to be interviewed?

A I was requested to conduct the interview.

Q Who made the request?

A Either Special Agent Price or Special Agent Wood.

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Q Do you know any reason why they did not conduct the interview themselves?

A No, sir, other than that at the time something had come up to prevent them from doing it.

Q Now, the 302 which is Defendant's Exhibit 119 is of an interview by Agents Wood and Price apparently; and it reveals that Myrtle Poor Bear was advised that she would be interviewed concerning the shooting of the two FBI agents near Oglala, South Dakota on June 26, 1975. Could you tell me, sir, whether either of those 302's in any way reveals the date for the occasion of the first contact between the FBI and Myrtle Poor Bear?

A In the preamble or --

Q Anywhere, anywhere.

A I'd have to look at them I suppose.

Q All right.

MR. TAIKEFF: Perhaps to save some time the Government would stipulate that there is no such reference at all.

MR. HULTMAN: I would ask the question why should there be before I stipulate? I don't see any relevance of any kind.

MR. TAIKEFF: Well, unless critical witnesses generally parachute into the FBI office unannounced I would imagine that it's a valid and reasonable question.

MR. HULTMAN: Well, I'll state for the record there's {4477} a fact that that not only is taken and does happen, but has happened with many of the witnesses in this file. They didn't parachute in, but they came in voluntarily on their part. And if it were relevant I'd cite book and page and time and place. Not by parachute, however.

MR. TAIKEFF: I would assume that if they parachuted in they first said Geronimo.

Q (By Mr. Taikeff) In any event you conducted an interview on February 24, 1976; is that correct?

A Yes, sir, it is.

Q And did you have before you the affidavit of February 19, 1976?

A At that time?

Q Yes, sir, At the time you conducted the interview did you either have it in your possession or had you read it or were you aware that it existed?

A I may have been aware that it existed, but I doubt it. The interview was conducted without benefit of the affidavit.

Q Now, as before when you were testifying in front of the jury, I do not intend to restrict you from using the 302, but I would like the record to be clear when you are testifying from your own recollection, when you are looking at the document to refresh your recollection or when if necessary you have to read from the document. Do you understand what it is that I require of you?

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A Yes, sir. It's all right to read from it now? Has it been entered?

Q Yes, it's in evidence for this special proceeding. The jury is not here, you may read from it. But I'd like to get some idea of the state of your mind.

Do you remember independently, and if not, does looking at the document refresh your recollection, and if not then we can read from the document. Do you understand that?

A Yes, sir.

Q Okay. Now, without using the document if you can do it that way what did Myrtle Poor Bear tell you on February 24, 1976?

A Basically, do you want the contents of the interview?

Q Yes. I'd like the contents of the interview to the extent that you have an independent recollection of it.

A I can -- well, the best I can do off the top of my head without referring to --

Q Yes, I wish you would do that first. No one is challenging you because you don't remember every written word. I just want to find out what your independent recollection is.

A She advised me that she had been living in the Jumping Bull area, in the compound area referred to here (indicating). MR. TAIKEFF: When the witness says "here" he pointed at Government Exhibit 71.

Q (By Mr. Taikeff) Go ahead, sir.

A That she had been living there since May or late May of '75.

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Q With whom?

A Leonard Peltier.

Q All right.

A That on the day of the shooting, June 26th, 1975, she saw a, which she assumed, or what she thought to be an FBI car drive into the area of the Jumping Bull houses.

Leonard Peltier called her outside and was with another individual and he gave her, or he told the other individual to give her a rifle or a gun, which the other individual did.

She stated that she could recall hearing shots, but couldn't remember exactly when the shots were heard. She told me that the next thing that she could recall, she was down in the area by the FBI car and was pounding on Peltier's back and yelling at him to quit.

She stated that she saw him holding a gun, a rifle on one of the agents who was near the car, either on the ground or this part. I can't recall specifically whether she said that he was on the ground, but she did hear the agent state something to the effect that "I surrender."

She said that she saw the body of the agent on the ground jump each time it was hit. That she at that point, I think she said went crazy, couldn't stand it any longer and started to run away.

That she ran away and that Leonard called to her to come back. First of all he had tried to stop her. Basically, {4480} that's all I can recall off the top of my head.

Q All right. Now, with respect to the recollection which you have demonstrated for us, tell us whether you have read the 302 of your interview prior to testifying this morning.

A This morning?

Q Not the reading the morning.

A Prior to my testimony here?

Q Prior to your testimony this morning.

A Yes, sir, I have looked at it.

Q And when did you last read it?

A Yesterday afternoon I believe.

Q And when before that?

A I don't know for sure. It would have been quite some time.

Q Now, it's a common practice to read 302's before you give testimony because that's one of the reasons why you prepare them in the first place; isn't that true?

A Yes, sir, that's true.

Q And is it fair to say that at least to some extent your recollection as you demonstrated it a few moments ago is based upon the fact that you reviewed your 302?

A Yes, sir, I could say that.

Q Okay. Now, when you took this interview was any other Agent working with you or assisting you in any other way?

A On this interview?

Q On this particular interview.

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A No, sir.

Q Isn't it the general practice of the FBI to have two agents in on an interview particularly with an important witness?

A I would say that it's a general practice for the FBI to have two agents in on an interview of a suspect of subject in a case, but not necessarily and most likely not witnesses.

Q How about the eyewitness to the murder of two agents?

A We at the time that I interviewed her, until we got into the interview, we didn't know that that's what she was going to -- I didn't know that that's what she was going to tell me.

Q Once you heard what it was she was going to tell you did you call for the assistance or companionship of another agent?

A No, sir, I did not.

Q When you heard what she had to say did you consider it important information?

A Yes, sir, I did.

Q And didn't she tell you that she could not describe the gun other than the fact that it was a rifle?

A May I look?

Q If you have to, of course. It's in the third paragraph on page 1 of your 302.

A Yes, sir. Other than that it was a rifle.

Q Now, did you recognize in connection with her statement in that regard that if a certain rifle could be identified as being the one owned or used by Leonard Peltier and she could {4482} identify that rifle that would be a very important piece of corroborative evidence?

A I'm sorry, I didn't hear the first part of your question.

MR. TAIKEFF: May that be read back, Your Honor.

THE COURT: It may be read back.

(Question read back: "Question: Now, did you recognize in connection with her statement in that regard that if a certain rifle could be identified as being the one owned or used by Leonard Peltier and she could identify that rifle that would be a very important piece of corroborative evidence?")

A Yes, sir. I'm sure that that went through my mind at the time.

Q (By Mr. Taikeff) And what if anything did you do to see to it that arrangements were made for her to look at one or more weapons that may have been carried by Leonard Peltier?

A I made no arrangements whatsoever for her to look at them. It was at that point of the interview that she became very distraught and the interview had to be discontinued for three or four minutes or five.

Q Well, apropos of that and before we get to the point where she became distraught, what would you say was her demeanor based on your own personal observations?

A I can't really state now what her demeanor was at the time. She had information to give and I took the notes and asked her questions, and she provided information without questions, just {4483} as in many other interviews.

As far as her demeanor prior to her becoming distraught I don't really think I can state what, how she was.

Q Did she strike you in any particular kind of way? Was she articulate, intelligent, quiet, talkative, calm?

A I would say quiet, not very talkative.

Q Was she sitting or standing?

A Both.

Q When she was sitting can you describe her posture?

A No, sir, I can't recall.

Q I understand that when you interview a witness you write down what you have to write down based on what the witness says, so I'm not looking to criticize your writing, do you know what she said? I want to know, though, in the course of interviewing her did you have any sense at all as to whether or not she was a credible person generally?

A That, that part of it didn't really enter in at that time. We have -- I'm obligated I feel by my occupation to take down the information that I'm given.

It's not for me to judge the information that I take.

Q I thought I had suggested that to you a moment ago, and in fact that is my position, so don't be defensive about it. What I'm asking you, after you executed your job, which no one will quarrel with you about, what were you own personal sense impressions about this person who had told you these things?

{4484}

A She was terribly upset, I do recall that, about having to relive, so to speak, from what she told me.

Q Did she identify the person who according to her upon Leonard's instruction gave her a gun?

A May I look?

Q Yes. Middle of the first paragraph, page 1.

A Yes, sir, she did. Ricky Little Boy.

Q And did she tell you that she herself fired a shot that day?

A Is that the -- sorry, I thought you were going on.

Q No, that was my question.

A Yes, sir She did mention that she had fired a shot at Ricky Little Boy who was pursuing her.

Q Did she tell you that she had some knowledge about a car being hidden under some trees and bushes as part of an advanced plan in which the car would be used as an escape car?

A May I refresh my --

Q Yes, sir. Page 2, end of the preliminary paragraph.

A Yes, sir, that is correct. She did tell me that.

Q Did she tell you that she had overheard Leonard Peltier and others who had been living at or near the Jumping Bull residence planning to kill either BIA officers or FBI agents sometime prior to June 26th, 1975?

A Yes, sir, she did.

Q And did she then tell you that it was her car that had been hidden in the bushes to be used as an escape car?

{4485}

A Yes, sir, she did.

Q Now as a general rule the Federal Bureau of Investigation gets a certain amount of cooperation from other law enforcement agencies and government agencies of the federal government and the state government, as a general rule. You call up, you want some information, you usually get pretty good service, don't you?

A Generally; yes, Sir.

Q If you have a reason to have to know right away who is the registrant of a particular vehicle, you can pick up the phone as a rule and call the appropriate state motor vehicle office, identify yourself as a federal agent and get pretty quick informal information on the telephone about what's the name and address of a registrant, if you gave them a license plate number as an example?

A Yes, Sir.

Q Now this woman said she had a car which was going to be used as an escape car, isn't that correct?

A That's what she told me.

Q And on February 24, 1976, how many years experience did you have as a special agent of the Federal Bureau of Investigation?

A Approximately four.