VOLUME XXII

Pages 4680-4878

{4680}

THURSDAY MORNING SESSION

April 14, 1977

Whereupon, the following proceedings were had and entered of record on Thursday morning, April 14, 1977, at 9:00 o'clock, A.M., without the jury being present and the defendant being present in person:

THE COURT: Before I rule on Exhibits 177 and 134 I would like to ask counsel again to state briefly why they first of all, defense counsel, why they feel that these two exhibits should be admitted.

MR. LOWE: Exhibit 177, Your Honor, is, I'll speak to that one first because I think there's an independent basis that is different from the laboratory reports themselves. First of all, Exhibit 177 is comprised of two components, in fact, although they are one Xeroxed document. The original document I understand is a green tinted paper document known as a green sheet which is used by FBI agents as a general practice to transmit or record or inventory items of evidence. And I believe it says bulk inventory, meaning that perhaps more than one item of evidence on that sheet.

This particular one was filed by Special Agent Hughes detailing certain items that he found or purportedly found in the crime scene area as a result of his activities on June 26, 1975. Two of the items on that list are listed as a 5.256 millimeter cartridge case, singular in each instance. In other words, there are two separate entries of a single cartridge {4681} case. In fact by Special Agent Hughes' testimony he found, I believe it was his testimony, that he found seven cartridge cases of 5.56 millimeter caliber.

In fact the Q numbers, which is the second component of Defendant's Exhibit 177, were put on there by either Mr. Hodge or his assistant at the FBI laboratory; and he testified that that would have been done when he received the items accompanying the green sheet in order to identify them for laboratory purposes in the future. And he not only wrote the numbers down on the green sheet but he scratched the numbers on the cartridge casings according to his, or wrote them in ink, whichever it was in that case.

The Q numbers opposite those two cartridges show a total of seven cartridges. So within the document there is an inconsistency that the agent reports two cartridges are being forwarded and the laboratory says that there were seven cartridges.

Now, one of the obvious essential evidentiary questions here that the Government has labored hard over and which will no doubt be a very important part of their final argument is the connecting up of the AR-15 known as Government Exhibit 34-A with the crime scene generally, with shooting at the agents in particular and with Exhibit 34-B in particular from the trunk of Coler's car.

Anything which would show irregularity as to the manner {4682} in which ammunition components later attributed to that AR-15 or any other .223 caliber weapon would relate very closely to one of the central issues in this case of identification of weapons and ammunition components with those weapons.

Now, it is obviously troublesome to the Government to have .223 cartridges which were fired by a weapon other than Government Exhibit 34-A, and I remind Your Honor that these seven cartridges were not merely -- excuse me, did not merely have insufficient markings in order to identify them with Exhibit 34-A, but rather the laboratory specifically said that they had not been extracted from 34-A but had been extracted all from the same weapon, if I'm remembering the testimony correctly.

In other words that there had to have been another weapon, another caliber .223 weapon which fired or extracted those seven cartridges.

Now, at this point the Government has failed to prove what weapon did fire those cartridges. It's not to say that they're required to prove that, but it is to say that that is an element which the defense concedes upon to show that there was one other .223 weapon there at some time prior to Special Agent Hughes finding those cartridges. But we are entitled to make arguments on our view of those facts and one of the important factors is that the inconsistency between the exhibit and the green sheet is a question which has not {4683} been resolved.

Now, it's not up to us to explain it, it's not up to us to say that the only explanation or that it's an explanation to help the defense. It is sufficient or relevant to point out that here among many, many inconsistencies many very questionable items of evidence which is a direct contradiction and the laboratory saying there were seven. I think that it's a matter for the jury that FBI agents in this case have testified to the great care they took. Special Agent Hughes himself said he took great care and I think that that is something that goes to the credibility of their technique, the credibility of them as witnesses. It goes to the whole issue of whether there was another weapon. It goes to the question of whether there was some attempted cover-up of weapons or cartridges or other ammunition components.

THE COURT: Now, I think counsel overlooked one suggestion I made and that is that you briefly --

MR. LOWE: Yes, sir. We briefly -- but this is a very important issue, Judge, and I want to be sure the record is clear on our reasoning.

THE COURT: Then you may go on.

MR. LOWE: Yes, I'm going to right now.

Exhibit 177 ties in with one of the laboratory reports as well which reports the seven rounds. Q100 through 105 and Q130 is in one of the laboratory reports, but I gather that {4684} Your Honor's question was more general as to the offer of all of the laboratory reports. Am I correct on that?

THE COURT: That is correct.

MR. LOWE: All right. Again, going to the fact that perhaps the single most essential issue here is obviously who actually fired the bullets that killed the two agents. We do not have any evidence that says that these are the bullets, except for the one, there were some fragments I think found in Special Agent Coler but they're not connected to any weapon. There was a bullet jacket, a nonlethal bullet jacket found in Special Agent Williams. That's been identified to a weapon.

The three fatal shots, the so-called execution shots, the only evidence we have is what you might call, or the Government would argue as circumstantial evidence as far as identifying it with a weapon. Dr. Noguchi said that it appeared to him to be a high velocity shot of 30 caliber or perhaps smaller.

So one of the essential questions is what candidates are there in the area for having been the weapon to fire a high velocity 30 caliber or smaller shot that could have killed the agents. Well, there are some weapons that have already been identified and marked as an exhibit that would qualify. One would be Government Exhibit 34-A. The Government in its part would like the jury to believe, we think that is {4685} probably going to be a part of their argument. There are others, however. There is a British .303 Enfield which has been identified as a high velocity weapon. I point out to Your Honor that there is a round of that gun found at the residence, the red house, Wanda Sears' house. There were other rounds associated with it I believe found up around the white houses and others in tent city. We believe we are entitled to show that, and to show the extensive collection that was made by the FBI to show not only the presence of weapons that are identified, but also to show all of the weapons components for which weapons were not found.

{4686}

Now why is this relevant? Well, I call Your Honor's attention to Exhibit 41A which was a .22 rifle about which there seems to be no doubt, Norman Brown at one time pointed that rifle and was firing it from up around the residences. I think his testimony was he carried it back to the tent area preparatory to getting away on the escape route and put it down on the hood of the green Ford where it was found by the agents. Now obviously there might have been other people who carried their weapons back and left them in tent city for one thing and the pictures of the tent city showed many different weapons that were found there including the Commando Mark III which is the .45 semi-automatic weapon that looks somewhat like a Thompson submachine gun which was, I think, by one witness attributed to Bob Robideau and for which there are weapon components up around the houses. I believe also there may have been a bullet fragment found in one of the cars. There's another weapon taken back to the tent area and left there.

We're entitled to show these other weapons which the government did not choose to introduce into an exhibit but are also possibly weapons fired by persons or someone unknown at the present time and carried back down to the tent area. That's one explanation for some of the ammunition components here. In those instances, of course, we have weapons and components {4687} identified and connected up in the reports.

There is a second category that's very important. There were weapons carried away from the scene, at least we know of some that were carried away by the escaping party that Norman Brown was a part of and Draper was a part of. Some of those weapons were described only generally. Some were eventually, we believe, or by the government were recovered. For example, 34A was one of those weapons.

We also know there were other people that left this area that were either not in that escape party or perhaps completely unknown. We know of inferentially people shooting at different times after this escaping party had left from the red house, for example. We know there were people running across, according to some testimony, from the white house to point "Z1" at a time after the escaping party had left. We know of Mr. Ecoffey testifying there were people shooting something like 500 yards to the southwest oŁ the tent area in the early part of the afternoon who had never been identified more than saying they apparently were four or five people there shooting an undetermined number of weapons. Those people had weapons which could have been carried away and we're entitled to show other ammunition components found in the area of the crime scene both up at the houses and in tent city which would tend to corroborate that other weapons, at least at sometime, had been in that area, had been used in {4688} conjunction with those ammunition components.

Now that by itself is explained in detail in these laboratory reports. It shows all the different ammunition components of weapons in some cases that don't match any of the weapons that we have actually produced in the case. In some cases weapons that we don't know where they are now. The government as far as we know never found some of these weapons and we don't know where they are, whether they're still in the possession of somebody or buried or burned or what may have happened.

Finally we believe as to the ammunition components portions there are nonammunition component portions. We argued we ought to be able to show the exhaustiveness of this search, the exhaustiveness of the listings, it affects whether they could have missed something or not, if they have got it this extensively. I think the jury would infer nothing was missed. It could have been found through human diligence. Whereas, the other side of the coin, will argue a certain type of ammunition was not found or certain weapon not found, the government might argue there is a crime scene area and it was an excited time. Perhaps they missed some things. We think these laboratory reports are concrete evidence they didn't miss anything. They picked up everything and did everything but mow the lawn in order to find items in that area. They were using metal detectors, I understand. They have an {4689} exhaustive list.

Finally, at some of the ammunition components in here, we believe that the place they were found is reported in a way there is no dispute on them and it's quite consistent with all of the testimony that the assimilation of certain items in certain places in clusters is significant. For example, the fact there was 30.06 rounds and .303 ammunition cartridge casings found at the red house indicates there was more than one person there. That's consistent with testimony that was given. That's a consistency we're entitled to have in corroborating part of the defense theory in explaining inconsistencies in the government theories.

We believe that the fact of where these were found as listed here is a buttress by the government which is proper to introduce and make arguments on. If it's unexplained, that's the government's problem. They have an opportunity to explain everything in this case; we have an opportunity to use government documents which have laboratory reports to show the information contained therein.

The agent, Special Agent Hodge testified that he did not have this information in his own recollection and as to a lot of it, he could not even recall his recollection by, or refresh it by reading these documents. He would have to rely on the information reported in the documents. That's saying nothing we don't all know to be the case generally. We believe {4690} we're entitled under all the rules of evidence relating to such documents to have those introduced. They're certainly relevant. These were ammunition components found in the crime area, the crime scene area.

For these reasons we believe we're entitled to have them for whatever value they may be and for whatever purpose we can use them for.

We also think the absence of information in these reports are very significant. I'll give you one example which I think is perhaps the high point of that particular thing and that is, it was not until February 10, 1976, seven months after the event and six months, approximately six months after the ammunition components were actually received by the FBI that the FBI had its first report of ballistic testing on ammunition components, including 34B which is a .223 round found in Coler's car and a number of other important rounds. And that's the first time in this very important investigation, which Hodge says it was one of the top ones, and they were working particularly hard on it. It's six months later before they have the first laboratory report purportedly connecting up that particular round found allegedly in Coler's trunk with Exhibit 34A. Even though they had the ammunition components since July 24 and they had Exhibit 34A in their laboratory since, I believe it was {4691} September 12 which was about four or five months earlier. We believe the jury is entitled to consider that.

Now if that were taken in a vacuum, if that were taken in a vacuum that would be enough of a basis by itself. But I call Your Honor's attention to the fact, and this is already in the record in an indirect way but not specifically enough to pin it down by the date that the Defendant's Exhibit 135, which is a report adopted by, I mean, written by Special Agent Hodge and he identified it as one of his reports saying that as of October 31, 1975, after the government had both batches of ammunition components from the Jumping Bull area, they had everything there that they ever did, as far as we know, that were found in the Jumping Bull area, two batches, one on July 5, one on July 24. So they had everything there. They had all of the Wichita weapons which, that was September 12, 1975, including AR 34A. And yet a full month and a half later they write a report saying that K40 which is 34A was found not to connect up with any of the ammunition components from the RESMERS area, meaning all of those components that they had prior to that date.

Now we know from our experience and from the testimony that the FBI tests very carefully. If they made a test from all of those components with Exhibit 34A resulting in a laboratory report dated October 31, 1975, saying there were none of the components that could be matched up and in the last line {4692} points out that the AR 34A was actually sent back to the alcohol, tobacco and firearms people because they found it to have no relevance to any of the RESMERS ammunition, it was actually sent back and have shown on the face of the report and then miraculously, four months later, they connect up that very weapon with one of the alleged components found in Coler's trunk. Now if that is not relevant and if that is not the fact which we are properly able to argue to the jury --

THE COURT: Was that explored on cross-examination? That discrepancy that you explained.

MR. LOWE: I don't know what Your Honor means by explore. I got the agent to acknowledge this was a true and accurate report by him and it was made as carefully as he could humanly make it and they were all accurate.

THE COURT: Did you question the agent about time?

MR. LOWE: I'm sure he made some excuses or argument. Assume for the moment he did something illegal and was going to lie about it, I'm not obliged to give him the opportunity. Mr. Hultman and Mr. Sikma know about this report and in fact Mr. Sikma did ask a question about that on his, I guess it would be redirect, when he asked whether the first time they tested those components was in December and January of 1975 and '76 and Mr. Hodge indicated that it was.

{4693}

Now, I think that that is something which a human being on that jury is going to find incredible, that the first time they would test ammunition components received in July with a weapon they received in September, as to a report they wrote October 31, and that what the agent now says is the first time he ever examined them was in December after this report had been written, I think that's something that the Jury has a right to consider in evaluating all of this evidence and to evaluate it in connection of 34-A to that weapon, that component in the trunk of Coler's car.

Now, we are not obligated to ask questions about everything in order to get something in evidence. We are entitled to show things such as laboratory reports.

I point out to your Honor that the Federal Rules of Evidence specifically says that the availability of the declarant is immaterial, and that's the situation we have here. This is an utterance, and it is offered to show the utterance and it is offered also to show the truth of it because it is a business record kept in the ordinary course of business.

Unless the Federal Rules of Evidence are going to be ruled to be somehow absolutely without meaning, that document is relevant and we are entitled to have it in evidence; and that the basis for wanting all of these is {4694} to show not only the affirmative information but also to show the negative information, that is, that they did not find certain things.

THE COURT: Does the Government have any response?

MR. SIKMA: Yes, I do, your Honor.

First of all, this is, I believe, the principal reason for the Rules of Evidence, Rule 613(b), what the Defendant wants to do here is what they were starting to do with Mr. Ecoffey, to show him a statement and ask whether or not it was made, and then pull it away and then not ask him any questions about it or give him any opportunity to explain it. They tried to get that in without even having the witness present on the stand in the first place.

THE COURT: What are you talking about now?

MR. SIKMA: I am talking about Ecoffey's statement by way of example.

Now, here what they are trying to do is to say, "Is this a lab report of yours?" Of course, it is a lab report of his, but I might point out that this AR-15, Government Exhibit 34-A, was during this period of time used in another trial dealing with Mr. Robideau down in Wichita, and had to be sent back for that purpose.

It seems to me that, first of all, the lab reports are technical records that do not directly relate to a {4695} number of items relating to this case.

The fact that the lab reports show that a number of items were examined does not show that they have any relevancy to this case.

On the one hand counsel says the laboratory did an extremely careful job of examining all these items; and then on the other hand, he said that it is inconceivable that between the time of September, when the first AR-15 was found, and December, that this laboratory expert would have examined somewhere in the neighborhood of 2,000 items.

Each one of these has to be placed in a microscope and compared with other items.

Now, it is inconceivable to me how we should be required now to call some expert who could come in here and explain to the jury what these laboratory reports mean in order to help them make a meaningful understanding -- determination as to these laboratory reports. As they stand, they are totally meaningless.

What the defense wants to do is to say to a witness, "Did you put on this -- did you make this laboratory report?" And then come up later on without having anyone have any conceivable idea of what they are talking about, come back later and pick one little piece out of it and say, "How do you explain this?"

For one thing, it would take an unreasonable length {4696} of time in the argument. I submit they could be explained, but for the jury to be able to understand all the technical aspects of these reports would be an unreasonable consumption of time.

They would also be, I believe, outweighed by their value as far as relevancy is concerned.

Counsel was given an opportunity to ask the witness when he was here about anything that he wanted to ask him about.

We stated that if the defense had certain items that they wanted to list and put them in in a readable, understandable means, we would be able to work something out; but all that has been done here is certain extracts have been taken from these reports, generally considered, these considered matters which I think are probably as relevant as anything which the defense is trying to put in here.

All it does is -- taking little pieces out of the report is to confuse the issues more and make it more difficult for the jury to understand.

I believe that these are excluded under Rule 403 and under 613(b) because they were not presented to the witness and he was not given an opportunity to explain them.

They also could have called an expert. They did not {4697} request an expert of their own to examine and find if there was anything wrong with the examination or with the laboratory work done by the FBI laboratory; but it is inconceivable to me how it could be argued that it is totally unreasonable to take two months to examine some 2,000 items under a microscope.

For that reason, I think, and the reasons stated earlier, these lab reports are inadmissible.

MR. LOWE: Your Honor, if I might just briefly respond?

Mr. Sikma seems to be attacking Mr. Hodge's veracity.

I don't mind him doing that. We are not here to try and prove that he was telling the truth or not.

He testified that these were accurate. If your Honor will look at Defendant's Exhibit 135, it is only a one page laboratory report. If the English language is susceptible of simplicity and clarity, this one sentence is: None of the other ammunition components was recovered at the RESMERS scene could be associated with specimens, K-40 and K-42.

And K-40 is the AR-15. You couldn't make it simpler. Maybe you could find one simple word to mean ammunition components, use bullets or casings. Nothing could make that simpler.

It is identified right away. K-40 is the .223 {4698} caliber AR-15, and the testimony is that's Government's Exhibit 34-A.

The Government wants to keep out any evidence that might cast doubt on its case. I don't even argue that's necessarily wrong. Maybe that's a part of their job.

If your Honor is not going to nullify the Rules of Evidence, somebody with presumably more wisdom than we have here decided that business records are admissible as an exception to the hearsay rule regardless of whether the declarant is available. It doesn't say "in the discretion of the Court." It doesn't say: If you can cross examine them or not cross examine them. It doesn't say: After you examined them on the witness stand. It says: The declarant's availability is immaterial.

I would hate to see this whole trial go down the drain on the grounds that clearly admissible evidence was excluded at the eleventh hour.

It seems to me clear -- at least to the extent it is not confusing -- these are admissible.

I vehemently object to the assertion by the Government that any of this is confusing. Laboratory reports are technical listings, but technical only in the sense they have numbers and identifications. They are written in simple English, and I would suggest anybody with a fifth grade education can read them and say: Specimens obtained {4699} from Tent City, Pine Ridge Reservation, K-2, and it lists the weapon.

This is not in technical language. It does not go into a lot of metallurgical terms or biological terms.

It reports physical findings. It states in very simple terms whether the weapons found could have fired the cartridge casings found or not, and the language is very, very simple and very understandable.

The Government obviously does not want the jury to know that these other explanations, consistent with the innocence of the Defendant, exist because the Government only has a circumstantial case; and your Honor will explain to the jury that in weighing circumstantial evidence, before they can convict they must find that all of the circumstantial evidence excludes reasonably the thesis of innocence of the Defendant before they can convict, so if we provide explanations which are consistent with the circumstantial evidence, then that's going to hurt the Government's case.

{4700}

This is circumstantial evidence which we are entitled to show. It is legally admissible, it has been determined to be so under the Federal Rules of Evidence. I don't know what else I can say. Certainly as to Exhibit 135 and simple information of that nature, there's no basis for this Court excluding it.

THE COURT: The record will show, and counsel will recall, that at the time the agent was on the stand with reference to the laboratory reports I suggested to counsel at the bench conference that he proceed and examine the agent with reference to some of the details in this report, and he declined to do so. The reports, the exhibits will be received, but will be restricted simply to the, first of all, that part which has been etched out in red by counsel will be removed.

MR. LOWE: All right, sir.

THE COURT: And exhibits will be received, but will be restricted simply to a listing as to what they show on the face. In other words, the dates will not be gone into because you did have an opportunity on cross-examination to explore those dates.

MR. LOWE: May I, I'm not exactly sure, just so I understand what Your Honor is saying before I comment on it, as to what the document will look like when it goes to the jury they requested, will it be a Xeroxed copy that has every- {4701} thing except what is bracketed in red and with the date deleted, is that what you are saying?

THE COURT: No, no. I'm not saying that the dates will be deleted. I'm saying that you will not argue the dates to the jury from these documents because you had the opportunity to cross-examine the witness. The witness's testimony with reference to the preparation of these documents is the best evidence.

I specifically suggested to you that you pursue that and you chose not to do so. Therefore, it would be totally unfair now on the basis of the receipt of these documents in evidence to make suggestions as to some discrepancy or some periods of time and days which might leave an erroneous impression.

MR. LOWE: May I just confirm then my understanding, is that we will get together with the clerk, or the clerk on his own if Your Honor chooses, and will make photocopies of these documents excluding the portions which are bracketed in red and those which I would ask to be marked with a letter A behind the exhibit; that we presently use the number, if that's agreeable with Your Honor so that it's simply referred to in the record and that those documents will be received in evidence, but that no argument may be based on the dates of the documents and any inferences to be drawn therefrom, is that your ruling?

{4702}

THE COURT: That's right.

MR. LOWE: All right. We'll certain assist the Court and the Clerk in preparing those. We vigorously accept the Court's ruling.

MR. SIKMA: Your Honor, if the Court is ruling that those items come in as excluded, we would argue that the entire report should go in because the defense counsel has removed items from that report which are testified to which have been gone into in testimony. And consequently the jury gets a very ill-advised notion of what the reports are all about.

THE COURT: Very well. In the, I was suggesting that they be removed to eliminate confusion. I didn't know that you had objection to the removal.

MR. SIKMA: I have objections. If the Court is going to let them in the Government's position is that they should not be let in because the reports themselves, whether you exclude certain items or include certain items, are generally speaking confusing to the jury; and secondly, that the witness was not questioned on this, on these certain items. What has occurred here is that in, I believe it was in November a report went back to Special Agent Gammage which stated that no items found in the tent -- or in the crime scene area were connected with Government Exhibit 34-A or with K-15, I believe which is now Government Exhibit 34-A then the --

{4703}

MR. LOWE: K-40.

MR. SIKMA: What is it?

MR. LOWE: K-40.

MR. SIKMA: K-40. What the reports don't say, and what the witness was not questioned upon or was not asked about is the reason for this statement being there that nothing was found in the area which related to K-40, Government Exhibit 34-A. And the reason for that was because Government Exhibit 34-B and the 34 series had not been examined at that time, or at least Government Exhibit 34-B had not been examined at that time because it was in a package that was received a couple of weeks later and it contained perhaps a thousand items which the agents had not had an opportunity to examine with reference to K-40, Government Exhibit 34-A.

And this is the kind of thing which makes the reports excludable. And the reason for the rule I believe which requires that before a document is admitted into evidence, or supposed a statement which is inconsistent with a witness's testimony, which this genuinely is inconsistent with this witness's testimony, he said that Government Exhibit 34-B did in fact, was found at the crime scene because of the evidence; and two, it was connected with K-40, Government Exhibit 34-A.

Now, the lab report says nothing was found in the items at the crime scene that was connected with 34-A. This leaves an inconsistency on the record which the witness has not had an {4704} opportunity to explain directly because counsel chose not to ask him about it. He offered the exhibit after the witness was gone, tried to offer all of these exhibits and that's what he's doing.

The Government does not want the jury, things to be kept from the jury, but the Government doesn't want the jury to have half truth or partial image of what actually occurred.

You must take into consideration that this lab report which went to Special Agent Gammage in November or December was made before these other items were examined microscopically and the jury with that kind of a, with that kind of a view will be presented with, on the one hand, Special Agent Hodge saying as an expert I was able to find a connection, a direct scientific connection between an item which was found in Coler's car and Government Exhibit 34-A. And on the other hand he has a lab report which no dates are made reference to which says there is no connection between items found at the crime scene and the matters --

THE COURT: Which part do you have reference to?

MR. SIKMA: Lab report, Defendant's Exhibit 134 I believe.

Well, wait, no, I don't think -- yes. If I may see the exhibits I will be able to tell.

Defendant's Exhibit 135 says none of the other ammunition components recovered by the RESMERS scene could be associated {4705} with specimens K-10 through K-42.

MR. LOWE: That's K-40 actually.

MR. SIKMA: Through K-42.

MR. LOWE: K-42.

MR. SIKMA: Yes. I see it isn't very legible here, I see. It is K-40. Well, that's Government Exhibit 34.

Now, that's an inconsistent statement with what the witness testified to on the stand. However, counsel never asked him about that when he had him on the witness stand. He just asked him if that was his report. And I would say that that's totally unfair to put that report in evidence when counsel had adequate opportunity to question the witness on this matter and give him an opportunity to explain it as is required by rules of evidence 613 (B). Then we could have cross-examined on that particular item, but it wasn't --

THE COURT: I do not want to leave the jury out any longer.

MR. LOWE: May I make two very brief remarks, Your Honor. First of all the trial last summer, the same issue came up. The Government came up and knew that that was an inconsistency and could have themselves asked the witness to explain that. I assert that was Mr. Sikma's responsibility by asking the witness whether he hadn't only examined these cartridges in December or January, and that was the purpose of that question I suspect. And it certainly provided that basis.

{4706}

So that they knew about it, they could have explored all they wanted. They knew he just got through adopting these as being accurate reports and they knew very well that they were going to assert that that was not an accurate statement.

The most important part, Mr. Sikma has played fast and loose with the records. He said that the agent only received these ammunition components in a bag a couple of weeks after the report of October 31, 1975. I believe that's what I heard him say; is that correct?

MR. SIKMA: That is not correct.

MR. LOWE: Maybe you better restate what you said.

MR. SIKMA: He received it in a group that was separate from those received in the initial presentation through Special Agent Cunningham. But he did not examine them until after this particular day.

MR. LOWE: Then you made a misstatement before when you said he did not receive them a couple of weeks after that report was written. So if you stated that that was incorrect?

MR. SIKMA: That's correct.

MR. LOWE: All right. Because Exhibit 192 which is the February 10th laboratory report shows on its face that these specimens were received July 24th some, I guess it's six months earlier, and includes Q2628 on page 10 which is Government Exhibit 34-B.

I believe we understand your ruling and I would add, {4707} Your Honor, we certainly did not oppose having the entire documents in. That's what I asked for originally. But now we've got some red marks on there which I would not want the jury to see. They might draw some inference why they were there and if Your Honor changes his ruling I take a neutral position on it. If Your Honor changes his position I think we ought to have some clean copies made as exhibits. I think it is appropriate to leave Your Honor's ruling the way it was made.

THE COURT: I'm going to examine into this question that counsel has just raised with reference to Exhibit 135 and I'll make a ruling later in the day.

MR. LOWE: All right, sir.

THE COURT: Just one more matter for the record before the jury is brought in. Because of the inquiry of defense counsel just prior to the recess yesterday I will clarify for the record the ruling of the Court on the offer of proof of the testimony of Myrtle Poor Bear.

The offer of proof related to a collateral matter and under the Rules of Evidence is therefore inadmissible. If the witness as she testified yesterday were to be a believable witness the Court would have seriously considered allowing her testimony to go to the jury on the grounds that if believed by the jury the facts she testified to were such that they would shock the conscience of the Court and in the interests {4708} of justice should be considered by the jury.

However, for the reasons given on the record yesterday the Court concluded the danger of confusion of the issues, misleading the jury and unfair prejudice outweighed the possibility that the witness was believable.

Jury may now be brought in.

While the jury is coming in could I safely advise them that we expect the evidence to be completed today?

MR. TAIKEFF: Maybe this morning, Your Honor.

THE COURT: Very well. And my intention is to ask the jury if they want to work over the weekend. If so, I would anticipate that we would have arguments tomorrow, they will be charged first thing Saturday morning and then they can deliberate over the weekend.

MR. TAIKEFF: Your Honor, if it makes any difference, Your Honor, could I hope, tell them that counsel would encourage that schedule? Does the Government agree?

MR. HULTMAN: Even if the Court wants to charge them on Friday afternoon it's fine with the Government.

THE COURT: Well, we're going to have six hours of argument. I think --

MR. HULTMAN: I'm not anticipating three hours, Your Honor. There have been --

MR. TAIKEFF: I may take some of the Government's time, Your Honor.

{4709}

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

THE COURT: I am now able to report to the jury that counsel are agreed that all the evidence will be in today and counsel will argue the case tomorrow, which is Friday. The jury then would have the, and after they argue I will instruct you on the law.

It's entirely possible that depending upon how the day goes, how long the day becomes, I may withhold my instructions until the first thing the following day after the arguments are concluded. The jury will then have the choice of having the case submitted to them on Saturday morning, for example, so that they could continue their deliberations over the weekend; or they could have the weekend off and come in Monday morning and have the case submitted to them on Monday morning and then deliberate from that point on.

So I would ask the jurors to perhaps discuss it over your noon lunch and tell me what you prefer after we reconvene this afternoon. The lawyers are agreeable of course to either procedure, probably would prefer to the first, and that is that we just go through the weekend. But I'm going to leave that up to the jury. If the jury feels that they want to be free to the extent that a sequestered juror is free over the weekend I will do it that. If you prefer to have the case {4710} submitted to you, for example, Saturday morning and then use Saturday and Sunday to deliberate or however long it may take to deliberate, you may do it that way.

I just ask that you think about it and I will ask that you advise the marshals before you come in after we have our noon recess and then the marshals can report to the Court.

MR. LOWE: Your Honor, I have the stipulation we've entered into with the Government counsel. I would like to -- if I might read that to the jury at this time, Your Honor.

THE COURT: You may.

MR. LOWE: I think if they see the chart it would help them to put it in context.

Jury will remember testimony about Chart 34-1 which is before it and this stipulation relates to Defendant's Exhibit -- Government Exhibit 34-H which was a bullet. And it reads as follows: "It is hereby stipulated and agreed between the United States of America and the defendant as follows:

{4711}

Government Exhibit 34H was tested for presence of blood by the Federal Bureau of Investigation laboratory and there was no blood on the bullet fragment.

There was one other item. May I just confer with Counsel for a moment?

That's the conclusion of that stipulation, Your Honor.

Your Honor, there was an instruction you had under consideration. Was it your intent --

MR. HULTMAN: Could we out of the presence of the jury, if we talk about instructions --

MR. LOWE: Was that with other instructions or at a different time?

THE COURT: We'll go into that later. I was intending to ask Counsel about that earlier this morning and because I didn't think of it I'll go into it later.

MR. TAIKEFF: Defense calls Lieutenant Forney.

JAMES A. FORNEY,

being first duly sworn, testified as follows:

MR. TAIKEFF: May I inquire, Your Honor?

THE COURT: You may inquire.

DIRECT EXAMINATION

BY MR. TAIKEFF:

Q May we have your full name, sir?

A James Arnold Forney.

Q And what is your occupation?

A Oregon State Police officer.

{4712}

Q What rank?

A Second Lieutenant.

Q And can you briefly explain your presence here today?

A I was subpoenaed here with a report.

Q And in connection with that document, would you tell us whether it is a memorandum report or record or date of compellation of acts, events, conditions, opinions or diagnoses made at or near the time by or from information transmitted by a person with knowledge of the events?

A Well, I can tell you it's our case number 717787. This is a case we have there on file that's compiled by numerous people that submitted the report.

Q I appreciate that information but I have to comply with the technical requirements of the Federal Rules of Evidence so I must ask you the technical question.

Let me go back a step. Would you say that what you have in there is a report?

A Yes.

Q Or a record, a police record?

A Yes.

Q And does it concern and record acts and events?

A Yes.

Q And was the report prepared at or near the time of those acts or events?

A Yes.

{4713}

Q And was it based on information transmitted by a person with knowledge of those acts and events?

A Yes.

Q And is that record kept in the course of a regularly conducted activity? That is to say, does the Oregon police function on a continuous basis?

A Yes.

Q And has it been doing so for awhile?

A Yes.

Q And is it the ordinary and regular course of practice of the Oregon State Police to make such reports of the kind you have in that envelope?

A Yes, it is.

Q And are you one of the custodians of such records?

A I am.

Q Now I place before you Defendant's Exhibit 227 for identification. Do you recognize it? Yes or no?

A Yes, I do.

Q And do you know anything about when and where and how it was prepared?

A Well, originally it's a copy of the original report that was prepared by Trooper Edward E. Hanson, Oregon State Trooper.

Q Relate that to what you may have in the envelope.

A It's a copy of an information report that is part of the original report that I have in this envelope that was prepared by {4714} the mentioned trooper.

Q And when was that copy made? It's a photocopy, is it not?

A Yes. It was made before, it was made yesterday.

Q And under whose supervision was it made?

A I observed this copy being prepared.

Q Now is it necessary when you leave here to take with you the original which is in the yellow envelope?

A Yes, it is.

Q Is that the reason why you prepared the photostat?

A Yes.

Q Now, sir, I ask you to look inside the yellow envelope. We had a brief conversation this morning, did we not?

A Yes, we did.

Q And I pointed out to you a certain information report that I wanted you to quickly be able to locate amongst that rather thick file.

A Yes, sir.

Q Have you got that?

A Yes, I do.

Q Now just to identify where we are, I want to ask you whether the records of which you are the custodian and which you have in court indicate information that was recorded by the Oregon State Police concerning a search of a mobile home? Just generally speaking.

A Yes.

{4715}

Q I'm just trying to get to the subject matter.

A Generally speaking. Yes.

Q Now does that record reflect any information concerning the photographing of any objects that may have been removed from that home?

A Yes. It does mention photographing.

Q What does the record in that regard --

MR. CROOKS: Your Honor, we object to this, number one, he's attempting to read into the record something which is not in evidence.

MR. TAIKEFF: I'm offering it in evidence by asking the question, Your Honor.

MR. CROOKS: Your Honor, unless I'm deaf I didn't hear any exhibit being offered. He's asking him to read into the record what the document says.

MR. TAIKEFF: That's how I'm offering it in evidence. It's already qualified under 803 subdivision six.

MR. CROOKS: Can we approach the bench?

THE COURT: You may.

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

MR. CROOKS: Your Honor, I don't know how many times we have to win the same thing. That police report, according to cases I previously cited, is not admissible under the Business Records Act unless they can qualify it as impeachment {4716} or some other material. This report was not offered as impeachment or shown under 613 to any witness and Counsel is attempting to read into the record something which is not in evidence and which cannot under any circumstances become evidence. There is no foundation for even asking this question.

I let Counsel go on and on with the offer of the supposed foundation but there is no way he can lay foundation for a police report under the cases we have previously cited. They are hearsay.

MR. TAIKEFF: I'm astounded. I have nothing to say in response. It's so obvious, it's so clear. This is an exception to the hearsay rule, plain and simple, under 803 subdivision 6. It's offered to rebut testimony obtained from an FBI agent and is affirmative proof of the finding of the AR15 in Oregon in a mobile home and I just can't possible understand what the government is talking about.

THE COURT: Are you offering the report at this time?

MR. TAIKEFF: Only that sentence in the report. I would offer the entire report except I haven't analyzed it. It's a very lengthy report and totally irrelevant except as to that one sentence.

THE COURT: Well, of course, you're not going to be able to have the sentence read without the Court first ruling whether or not it's going to be admissible.

{4717}

MR. TAIKEFF: I'd be glad to show Your Honor what sentence I'm talking about.

THE COURT: I'm saying you're not going to be able to have it read to the jury.

MR. TAIKEFF: I'm offering that sentence.

THE COURT: I understand you're offering that sentence. I am not prepared to rule on whether that sentence is admissible.

MR. TAIKEFF: Unless and until?

THE COURT: On the basis of which you offered it. I again want to examine the authorities that Mr. Crooks --

MR. CROOKS: Your Honor, I would again point out to the Court the two cases we have previously cited, U.S. vs. Schriever 414 Fd 2d 46, 5th Circuit (1969), U.S. vs. Thompkins 487 Fd 2d --

THE COURT: U.S. vs. Thompkins?

MR. CROOKS: 487 Fd 2d 146, 8th Circuit (1973).

THE COURT: The other one, what was the other one?

MR. CROOKS: Which are you looking for?

MR. TAIKEFF: 414.

MR. CROOKS: 414 Fd 2d 46.

MR. TAIKEFF: Could the government say what the holdings of those cases are, Your Honor?

MR. LOWE: He doesn't know.

MR. CROOKS: Your Honor, we have gone into this --

{4718}

THE COURT: Just a moment. Just a moment. You've got all the foundation you need from this witness, have you not?

MR. TAIKEFF: I'm afraid of that, Your Honor, because of Your Honor's ruling with respect to Mr. Ecoffey whom I laid in the same valid foundation, then when I offered his report I had to get him back up here to do it. I'm afraid to let go of the witness.

I have another document to put in by him anyway.

I'd like the chance to look at those cases because I'm positive they don't say, by raising this name at this time, suggest they say --

MR. CROOKS: Your Honor, these cases were cited earlier. I assume Counsel read them. The first case holds that police reports are not admissible under any construction of the Business Records Act, police reports of hearsay, and they are not admissible. The second case, the Thompkins case holds the same is true as the treasury claims. The treasury claims cannot be used to establish the mailing and theft documents simply because it's in the postal inspector's official report. The Business Records Act was not intended to cover what Counsel is attempting to elicit here; in other words, statements, narrative statements of --

THE COURT: Hold it down.

MR. CROOKS: Of observers. That is such basic law that I'm astounded Counsel hasn't bothered to read the cases.

{4719}

MR. TAIKEFF: Your Honor, I'm so certain this is such a basic question, without ever having read those cases I'm going to suggest by intuition what those cases hold. They hold that the prosecution can't offer those documents as a way of bolstering its case and I'd ask Mr. Crooks to state whether that in fact is what those cases were about. Yes or no, Mr. Crooks?

THE COURT: I don't suppose I should --

MR. CROOKS: I rarely respond to idiots and I will not do so at this time.

THE COURT: I don't suppose I should rule on the basis of your intuition.

MR. TAIKEFF: I heard what he said. He called me an idiot on the record. I'm perfectly happy he did. I know we're doing exceptionally well on this case and I won't even ask for an apology.

THE COURT: That's an improper statement and stricken.

MR. TAIKEFF: It's also an inaccurate statement.

THE COURT: I would agree with that, too.

MR. CROOKS: I'm not so sure.

MR. TAIKEFF: I think the government has made objections here that is in the purest sense, plain and utter gibberish.

MR. LOWE: That word came up last year. We made a definition on the record.

MR. TAIKEFF: I'd like to complete my examination as to {4720} the second document.

THE COURT: Very well.

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

Q (By Mr. Taikeff) Was there any action again with respect to the objects found in the mobile home, visa-vis the FBI?

A You're asking me to read this?

Q No. The judge has to make a ruling with respect to that particular part of the report. I'm now going to the document which is marked for identification and which is in front of you.

A Yes, sir. I have to read from this to tell you that information because I did not compile this.

Q Based on the record in your own words what happened to the things which were found in the mobile home, if anything, with respect to the FBI in terms of either being turned over or not being turned over?

MR. CROOKS: Your Honor, I will object to this. This witness has testified he has no personal knowledge. He is here as a custodian of the record and not in a position to make observations of what did or did not happen. Counsel is attempting to elicit information which is not in evidence.

MR. TAIKEFF: I'm eliciting it in an effort to get it into evidence. Of course, it's not in evidence. The government won't put this in, the defense is trying to put it {4721} in.

THE COURT: The reporter will read back the question.

(Whereupon, the last question was read back.)

THE COURT: Do you understand what happened?

THE WITNESS: I know from looking at this report, sir, what it says here.

THE COURT: But that's the only basis which you know?

THE WITNESS: I was not there when any of this transpired. I was not personally involved in any of the transaction.

THE COURT: The Court will then take under advisement the offer of that other portion of the report. This witness does not know.

MR. TAIKEFF: I wish to offer it in a different way or attempt to offer it in a different way. I understand Your Honor's ruling and I will comply with it and make a different foundation, if I may, Your Honor?

THE COURT: You may.

Q (By Mr. Taikeff) There is a document in front of you marked for identification?

A The original?

Q No. The copy.

A This one? Yes, sir.

Q I don't want you to reveal its content unless and until you're asked a question about its content. Do you understand {4721} that?

A Yes, sir.

Q Categorically or generically speaking what is that document?

A An information report.

Q And is it signed?

A Yes, sir, it is.

Q And by whom is it signed?

A Trooper Hanson.

Q And will you look at the last page of that document. Is there a signature there?

A Yes, sir.

Q By whom is it signed?

A Steven L. Hancock.

Q What's his occupation?

A Special agent, FBI.

Q Now look over that document just to refresh your recollection as to what it says generally. I do want you to read every word, but don't reveal its contents until His Honor rules that you may.

Now information report is a term used by the Oregon State Police for identifying a certain kind of report form, isn't that correct?

A Yes, sir, it is.

Q That report form was used to make up that particular {4722} document, is that correct?

A Yes, sir.

Q What does that document constitute without reference to the specific words that may be on the pages? What is it generally?

A If I understand you correctly, it's generally a supplemental report to the original report in this case.

Q And in that particular instance what does it constitute?

A Is a property list.

MR. TAIKEFF: I would like to show it to the Court, if I may.

MR. CROOKS: Your Honor, could government counsel have the benefit of seeing the document?

MR. TAIKEFF: Yes.

{4722}

MR. TAIKEFF: May I come to the side bar?

THE COURT: You may.

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

MR. TAIKEFF: In order to fully inform your Honor of exactly what piece of evidence is under consideration, there are two sentences in the document which the witness has the original of.

They read as follows, in the paragraph dealing with the search of the mobile home: "Most of the items seized by the writer" -- that's Mr. Hansen -- during the search of the vehicles have been photographed and turned over to Special Agent Steven Hancock. A list of these items is contained on an information report and receipted to Agent Hancock.

If I ask this witness what information report was referred to in that paragraph, he would identify it as Item 227 for identification. The seventh item on that list is the AR-15. The last page of that list is signed by the Special Agent who testified here; and furthermore, your Honor, it occurred to me after our last appearance at the bench that these materials were not supplied to us as 3500 material after the testimony of either Hancock or Hansen.

So assuming the argument could be made that this is {4723} not the appropriate time because we should have done it before -- and indeed I don't think any such argument could be made -- this is the first time we have had these materials produced when we had a witness who could tell us anything about it.

Secondly, your Honor, this witness is the custodian of records that are kept by the agent in the sense that he has signed -- or rather made by the agent and written by the officer who testified. The authenticity is not in dispute, their accuracy is not in dispute.

The Government has no foundation claim here. They may not like what the documents reflect, but that's no basis for keeping it out and that's constantly what the Government has been doing in this case, making an objection when they have no legitimate basis for making an objection.

MR. CROOKS: Well, your Honor, No. 1, counsel has stated that these were not turned over as 3500. The obvious reason was that they are not 3500 material. They are the State Police reports which I saw for the first time, as I have stated previously after the man testified -- and I certainly do not want the record to indicate that counsel in any way agrees with any inference that the United States has not complied with the 3500 with regard to this material.

As to the second point, this goes back to the same {4724} argument that was made again and again. Counsel is simply attempting to put in police reports in lieu of testimony.

My recollection was that both Officer Hansen and Officer Zeller used their own reports extensively to refresh their recollection, so counsel obviously knew they had them.

As a matter of fact, I think Mr. Hansen was asked what he was referring to, and he said he was referring to his own report. Counsel could have gone and gotten a copy of it. As a matter of fact, I think I even offered to let counsel examine it.

MR. TAIKEFF: That's not true. In fact, it was the exact opposite. You asked the Judge not to show it to counsel. You have the worst memory of any human being I have ever encountered.

MR. CROOKS: Mr. Taikeff apparently feels some need to attack me personally.

However, my recollection was that as the witness testified he looked at his exhibit, his report, and referred to it; and counsel even asked him what he was referring to, if he was referring to his 302's. He said, "No, I am referring to my report. Counsel didn't ask him to see it.

What counsel is talking about is something that {4725} happened long after the witness was off the stand.

All of this gets down to the bottom line, that there is absolutely nothing inconsistent with what counsel has referred to here and what any witness has testified to.

MR. TAIKEFF: That's not true at all.

MR. CROOKS: Could I at least have the courtesy of finishing my statement?

MR. TAIKEFF: I am sorry. You are correct, I should not interrupt. I apologize. I shouldn't interrupt even if it is a misstatement of fact.

MR. CROOKS: Counsel has inferred that there is something inconsistent with many of the prior statements.

The testimony was that as the weapons were taken out of the vehicle, Officer Hancock as an observer photographed them. That's exactly what the report says. That's exactly what Trooper Hansen testified when he testified.

The weapons were taken out and photographed and ultimately all of them were turned over and receipted to him.

What counsel is attempting to do, I would assume, is argue and inconsistency that's not there, so for that additional reason I would object to any further mention of these reports because there is nothing inconsistent.

MR. TAIKEFF: That's for the jury to determine.

MR. CROOKS: Further, there is no foundation under {4726} 613 for any of these.

Officer Hancock was recalled. I would assume that he was intending to put him on for some purpose, but he has not used him; and he was available and is still available if counsel wishes to lay proper foundation. The witness is here.

MR. TAIKEFF: This witness stands in the officer's shoes. I do not understand what Mr. Crooks is talking about. It is as if he never heard of the subject of evidence.

This witness stands in the shoes of that officer under Rule 803, Subdivision (6). That's exactly the function he is performing.

That's what the Business Records exception to the hearsay rule is. The classical problem of hearsay is that a person other than the one who has the information is attempting to offer the evidence, and that's exactly what we are doing here by this witness.

MR. CROOKS: Counsel apparently --

MR. TAIKEFF: (Interrupting) This witness is in the place of the officer, as the custodian of a record made by that officer.

THE COURT: Is the officer available?

MR. CROOKS: Well, Officer Hancock is, he is right here. Counsel subpoenaed him in.