VOLUME XXIV

Pages 5169-5265

{5169}

SATURDAY MORNING SESSION

April 16, 1977

Whereupon, the following proceedings were had and entered of record on Saturday morning, April 16, 1977, at 10:30 o'clock, P.M. without the presence of the jury and the defendant being present in person:

MR. LOWE: I apologize, Your Honor. I lost five minutes on my watch last night.

Do you have some initial matters, Your Honor, or do you want me to start?

THE COURT: I have two initial matters. Is Mr. Ellison around?

MR. LOWE: I have not seen him this morning. He's not planning to be here at 10:30 I do not believe.

THE COURT: I appreciate that.

He does plan to be here today?

MR. LOWE: Yes, sir.

THE COURT: After the case has been submitted to the jury, I plan to hold a hearing in chambers on two matters this afternoon. The first matter I want the defendant present and I went Counsel for both sides present.

The second matter I want simply defense Counsel present including Mr. Ellison.

MR. LOWE: All right, sir.

Do you have a time you want to set or after we finish {5170} with the charge?

THE COURT: I would assume, I think we'll set a time for 1:30 this afternoon.

MR. LOWE: All right, sir. Fine.

THE COURT: An inquiry has been made of the clerk as to whether, this inquiry has come from the media as to whether they may interview the alternate juror after the alternate has been released, which will happen as soon as the jury has been instructed.

I would, before I make a decision on that, I would like to hear any expression that Counsel might have with reference to that.

MR. HULTMAN: Your Honor, I think that's a matter I probably first for the defense to respond to but I will be glad to respond.

THE COURT: It doesn't make any difference. I want the response from both sides. It makes no difference to me.

MR. HULTMAN: Very good, Your Honor.

For one, Your Honor, the government would object, not because of any amendment right of the press, but on the grounds that a jury is deliberating and the release of that kind of information still could run the risk that that kind of information could get to the jury again through a press statement and responses and could in effect, I think, be prejudicial as far as the ultimate determination of the case. {5171} It would be for the protection that the jury might be able to deliberate without running additional risks of any kind in all fairness, first, to this defendant, and, secondly, to the government, that the government would resist any such discussion until the case has ultimately been terminated by the return of a verdict by the jury.

MR. LOWE: Your Honor, I think there are two questions then and one of them we have standing and the other one we do not have standing, nor does the government.

The one we have standing, obviously, is whether it would in some way taint the jury. I am assuming, and I have all along assumed, that the sequestered jury is indeed sequestered and I don't see any prejudice to the defendant or the government in allowing that, and frankly I have serious doubt as to whether the Court even has power to do anything on that once you've released him.

The second question is rights of that individual juror and we don't have standing on that, but I would merely observe, as it is the case to come out of the grand jury, you can make the same argument with them as you do here. Jurors after any case is terminated, the jury has an absolute right to refuse to be interviewed or give an interview or make a statement or do whatever they want to do and I don't think we have standing on that.

I'm not here representing the newspapers or I would {5172} have some argument about that. I'm not here representing the jury, I might have arguments on that.

We would take the position that we simply do not take any position except that we don't object to it.

THE COURT: Very well.

I'm going to bring the jury in at exactly 11:00 o'clock but I will hear Counsel's now.

MR. LOWE: I think it can be very brief on this. I do have one matter that is of some concern to me and I think I should mention it. It's going to be very brief. Your Honor may not want to deal with it right now. I don't know if, at the beginning of the trial we discussed this model and it was my understanding that we agreed to have it for use in the courtroom during the trial. That was by stipulation. There were some differences of opinion by government and defense as to how it would be used, if at all, during deliberations by the jury and we simply agreed not to agree on anything one way or another. The only thing we have agreed on on this whole trial is not to agree on that.

In any event, I would like to raise the defense position. We feel the jury should not have access to the mockup unless Counsel and the Court are present. The reason we did stipulate, correct me if I misstate this, Mr. Hultman, the mockup should not be used by the jury for making line and sight type things, getting down and seeing over the hill {5173} whether you can see the car, see whether you can see somebody behind the house at a certain point, and that it was for general orientation and not for that purpose. We feel, therefore, that in order to avoid a misuse by the jury that Counsel ought to be present. I don't mean saying anything, just simply present. This is bolstered by the fact in Mr. Hultman's summation, I'm sure in the heat of argument he said this without thinking, "If you have any doubt whether you can see the cars from where Leonard Peltier was at, look at the mockup." That was the second thing we agreed we could use the for.

I would be concerned if they had access to it, unescorted access. It might be the jury would never ask to see it. If they do I think it would be appropriate for Counsel and Court to be present, whatever they do observe. I don't know if government wants to respond. I wanted to tell the Court before you charge the jury.

MR. HULTMAN: Your Honor, first of all, I think we agreed those things that were obvious and were supported by other evidence the Exhibit 20 certainly could be used for. What we were talking about specifically, and I think, John, the fact that what we were talking about in our discussions was that we would not get into a posture with rises and so forth that scientifically it was accurate in that degree. But it certainly was to be used for general observation and I think {5174} the one I used yesterday not only was a general observation but was clearly supported by the evidence and supported by the exact exhibit, the photograph I used to support it. I don't think I made any use of the model that we in any way disagreed on to that kind of use. It was a technical use. When it got down to fine lines and fine points, we said it would be observed and be whatever it was in a general sense of the word and not in a scientific sense of the word.

Now specifically, though, to Counsel's objection, the government believes that it is an exhibit that should go to the jury or be available to the jury in that sense of the word and we have no objection that the Court be present at any time but that they view it. But we would object it being no more right for Counsel to be present when they are viewing any other exhibit that is in this particular trial during the course of their deliberations.

THE COURT: The Court feels that it would be improper for the Court or Counsel to be present during any portion of the jury's deliberation, and the Court will instruct the marshals that if the jury, the mockup will remain in the courtroom. The marshals will be instructed and are hereby instructed that if the jury desires to view the mockup they may be brought into the courtroom with the marshals just for the purpose of viewing it generally without citing it or discussing it within the courtroom. The jury will be instructed {5175} they may deliberate and discuss the case only within the confines of the jury deliberation room.

MR. HULTMAN: That's quite satisfactory, Your Honor.

THE COURT: Very well.

MR. LOWE: May I make one other point. The clerk mentioned the two exhibits, I think they're 70 and 71. I know the big one is 71, at least. They might be taken into the jury room. I have some concern that once they are placed in there the items on the board be in the correct location.

Am I correct, Mr. Hultman, that each one of those has a pencil out line and designation behind it?

MR. HULTMAN: That's correct, John.

MR. LOWE: I think in order to avoid confusion I would ask the jury be instructed that that is the case and my concern is that if one juror moves a green flag for some purpose and doesn't say anything about it, another juror may look at that and think that's where the item belongs. I think as long as each of those has a pencil out line with a number, the jurors can make sure they are in the exact place.

I don't object to those, those green flags are not in evidence, I don't think it's objectionable and in fact it may help the jury to understand and recall the evidence. I would ask the Court to specifically point that out to the jury in case something gets disoriented on the board.

THE COURT: Now specifically what is it you wanted to {5176} point out?

MR. LOWE: There are pencil out lines for each of the little flags used by the FBI, I presume so when Counsel puts them on the board they know where to go so the arrow points to the correct spot.

MR. HULTMAN: For example, Your Honor, if you take this off there is a pencil out line with the number 37E so you know where 37E then goes. That's the question that Counsel just asked.

MR. LOWE: I think you just point that out to the jury, if they know that a thing seems to be out of place, they can check it by looking. That's all I have before I make my offer of proof, Your Honor.

If you want me to proceed I will.

THE COURT: Just a moment.

You may now proceed.

MR. LOWE: Your Honor, with this offer of proof it is the first two items that are in regard to specific instances, representative instances of violence on the reservation.

William Rossmoore, attorney for Connecticut at a time prior to the events of Oglala, the shoot-out, he and several other people, including an attorney named Roger Finsal, an attorney named Marty Kobelman and three other people, Eva Gordon, a woman, Kathy James, a woman, and Bernardo Esquavita, {5177} native American person. Mr. Rossmoore, Mr. Finsal, Miss Kobelman, Mrs. Gordon and Mrs. James, I understood, perhaps not Mrs. James, flew in a light plane to the reservation airport and were met from an automobile, a convertible type automobile with the top up by Bernardo Esquavita and Kathy James who at the time was an assistant at the Wounded Knee Legal Defense-Offense office at Rapid City about 100 miles away. They were picked up by the car and they went off and did some sort of investigation with regard to a legal case they were working on, a criminal case of some sort. When they returned to the airport they found that their plane was riddled with bullets from some unknown source but it was not deemed to be safe to fly. They turned around and decided they would drive back to Rapid City and make arrangements to fly back commercially. Before they could leave the airport area they were surrounded by a number of cars filled with goons. One of the people who was present in one of the cars was Dick Wilson, the tribal chairman that you have heard describe in this trial. The goons came over to his car. The people inside of the car locked the doors. They could not make exit because they were blocked in. The goons took out knives, cut through the convertible top, reached in, unlocked the doors and forced the people out, whereupon, Mr. Rossmoore and Mr. Finsal were beaten very severely.

{5178}

And one of the goons approached Roger Finsal with a knife and had it not been for a deflecting blow aimed by Eder Gordon who apparently was quite upset because she knew Mr. Finsal and that knife cut Mr. Finsal from the forehead clear across to the top of his head, top back of his head very badly. This instance would be, and I might add that at the time they got them out of the cars Dick Wilson said "Stop them" and upon that order from Dick Wilson they did exactly that, they stopped them. That would be one instance.

Another instance involved a person named Jack Steele who was outside of the Law and Order Building in Pine Ridge which is the BIA police headquarters there and three men, I have no identity for the men, I don't know if it was ever determined, three men beat him up in the presence of two men who he identified as special agents of the FBI. After he was beaten up very badly he went inside of the BIA building and wanted to have the three men arrested and asked the agents why they had not done anything while he was being beaten up; and he would testify that the two agents said that they were not a protective agency, they were merely an investigative agency.

As to Bambi Sanchez who did testify in this courtroom, Your Honor stopped an inquiry line which was going to an event which occurred when some special agents of the FBI came to her house where she and her husband LeRoy Casados, {5179} and I use the word husband, I should say I'm not entirely clear, it's my understanding that they are married and that she simply chooses to use her maiden name, in any event LeRoy with Bambi, a special agent came in, and when they burst in one of them held a gun to Mr. Casados's face and the second agent said words to the effect "It's Leonard, shoot him". We would offer that, we would offer that, or intended to offer it for the purpose of showing that LeRoy Casados was sufficiently a lookalike of Leonard Peltier that one of the agents made that particular comment. And there is evidence in the transcript, of course, that, about LeRoy Casados having a vehicle in which Special Agent Williams' gun was found and other information.

As to Myrtle Poor Bear, there are three things which we would have additionally put on the record but which became moot as a result of Your Honor's ruling. First of all we would have introduced members of her family to show two things: To show that her fear of the FBI had extended, and statements that she made to that effect had extended over a period of more than a year. And to show that statement about repeated meetings with Special Agent Price and Wood extended over a year. Your Honor may remember, I believe I'm correct that Special Agent Price indicated that he met with her only a few times. Myrtle Poor Bear said somewhere between ten and twenty times. So we would have shown utterances by the {5180} family, in the presence of the family to indicate that she had met with them many more times and to show that her state of mind, a fear of the FBI was not of recent vintage.

The second thing we would have shown what have been to show that there was a dramatic change overnight between the time Myrtle testified in detail in this courtroom and the next day when we brought her in with the weight of the world lifted from her shoulders as a result of having finally said her story in public. In order to convince Your Honor that she indeed is a believable person, not only what she said was believable the first time, but particularly the second time explained why she was nervous and having difficulty answering.

The other aspect of Myrtle Poor Bear we would have wanted to show that in the extradition proceedings in Canada the affidavits of Myrtle Poor Bear were used and were the basis of legal action instigated by the U. S. Government to extradite Leonard Peltier; that the use was as late as February of 1977, and certainly in December of '76 when he was actually brought back from Canada. To rebut the suggestion that the Government obviously knew that Myrtle Poor Bear was not a believable witness and that is why they did not use her because it is inconceivable that the Government would take the position they could use her affidavits in a legal proceedings. In fact, they did not believe she was a believable witness, {5181} and that the Government would knowingly use what they thought was unreliable for such a serious legal proceedings. So we would have produced a witness who would have testified that the three affidavits were the sinequanon of extradition, that if it had not been for the Poor Bear affidavits the extradition case would have failed and we would either have had testimony or there would have been a fair inference that the Government knew that when they tendered those affidavits.

That is the offer of proof in its entirety, Your Honor, with regard to testimony in somewhat more detail that we did not actually put on because of Your Honor's rulings and that is all I have.

MR. HULTMAN: Your Honor, could I just respond to one item? It will take just two seconds, I would like the record to reflect that it is my understanding on the items concerning Mr. Wilson and those charges concerning him that it is correct that he was acquitted on those particular charges and I would wish the record to reflect that.

MR. LOWE: It is my understand that Mr. Wilson was charged out of that event and was acquitted. And in fact, Your Honor, I will add that to my offer of proof. I'm thankful for Mr. Hultman raising that. I think that goes further to show the fear of people on the reservation because even when there's a clearcut instance of unprovoked, unjustified violence they cannot get justice through the courts. And {5182} Mr. Wilson was in fact acquitted and I think that adds to the offer of proof.

Mr. Peltier advises me that not all of them were acquitted. Do you understand that, Mr. Hultman? I'm not familiar.

MR. HULTMAN: You mentioned Dick Wilson, that's all I have knowledge about.

MR. LOWE: You don't have any knowledge of those? Well, then I can't offer that then, Your Honor.

THE COURT: With reference to your named witnesses other than Sanchez and Myrtle Poor Bear I think the record will show that, I think the record is correct, is it not, Mr. Lowe, that you did not even mention those witnesses to the Court in this respect until the last day of the trial; and after you had announced that the defense was going to finish the presentation of their testimony on that day?

MR. LOWE: Excuse me, Your Honor. Your Honor, I can only speak of my own knowledge. But I would like to say that to my knowledge that is the first time those names specifically were mentioned in open court or to Your Honor.

I understand, though, that as I pointed out, I guess it was the 7th, the afternoon of the 7th or the day of the 8th, the Thursday and Friday before the Easter weekend when I was not here that Your Honor did have at a sidebar conference some discussion with counsel about a ruling on the relevancy {5183} and the admissibility of specific instances of violence. I do not know whether those names were specifically mentioned. I do not know whether those events were described with some detail without mentioning the names.

I'm simply, I don't know that. I have not looked at the transcript, but these were people for whom subpoenas had been out for a long time granted by the Court, of course, pursuant to our usual arrangement with the Court. And I did offer them prior to the close of the defense case. But the reason we did not mention them --

THE COURT: Where were these witnesses at at that time?

MR. LOWE: I do not know, but Jack Steele was here I was advised William Rossmoore was, was available, standing by to come if he could be used or maybe -- that's what I'm advised.

THE COURT: Available where?

MR. LOWE: I do not know. I simply, I don't know. He's an attorney from Connecticut, but in any event he could have been here for the next morning. I only mentioned this, Your Honor, that we obviously knew Your Honor's ruling saying no specific instances would be allowed, and it seemed to me that that was a foreclosure of production of those witnesses.

MR. HULTMAN: Your Honor, might I on the record indicate that during the course of the trial the names of witnesses, agreements were given to counsel at a given time {5184} somewhere in the proceedings, at least when they were expected to be called, and to my knowledge none of the names that have been mentioned at any time were given either on or off the record to the Government.

MR. LOWE: The reason for that is that they were not early witnesses in our case. In the beginning of our case they were later witnesses and I, Mr. Taikeff made those lists up, but I can only assume that we had simply not gotten to that point. We had not given any of them. We were giving him a day or two --

MR. HULTMAN: It was the case, clear up to the end of the trial, that I was given names each day up into and including the last day of the trial. And I never received any of those names.

MR. LOWE: I acknowledge that that would be the case because after Your Honor ruled that you would hear specific instances of violence there was no purpose in putting their names on any witness list.

THE COURT: Court adheres to its ruling that the evidence on the specific instances of violence unrelated to the issues in this case would not be received in evidence.

MR. LOWE: I understand, Your Honor. Thank you.

THE COURT: And the offer of proof is therefore denied.

MR. LOWE: Thank you, Your Honor.

{5185}

When you say the offer of proof is denied of course you mean it's part of the record, but you are simply not changing your ruling on the basis of this, I trust.

THE COURT: The offer of proof is a part of the record but I'm denying your right to put the proof, specific proof on the, into the record before the jury or in this case because of any, because of undue delay that would be created even before the Court. Other than your statement, in other words, I'm denying you an opportunity to put the specific testimony of these two witnesses that were offered on the last day after you had indicated that you were ready to rest I am denying; and there was an indication that at least one of these witnesses was in Connecticut or someplace. I am denying you the right to have those witnesses testify out of the presence of the jury.

MR. LOWE: No, I understand that.

THE COURT: And we'll take, I want to be sure that the record is clear.

MR. LOWE: Yes, sir.

THE COURT: And would take as an offer of proof your statement as to what those witnesses would testify to if they had been called.

MR. LOWE: That's what I understood. Thank you, sir.

THE COURT: Very well. The jury may be brought in.

{5186}

AFTERNOON SESSION

(Whereupon, at the hour of 1:30 o'clock, p.m., the following proceedings were had in chambers with counsel being present and the Defendant being present in person:)

THE COURT: In this case there have been offers of proof of misconduct; and in order that the record should be complete -- at least with suggestions of misconduct which have come to my attention -- I decided to make a record here in chambers this afternoon after the case has been submitted to the jury.

So I am going to, first of all, ask Mr. Hanson to take the chair over there as a witness and state for the record, In narrative form for the record, an incident that you reported to me.

THE CLERK: Thank you, Judge. If you don't mind, I will read from the statement that I have written out.

THE COURT: You may.

THE CLERK: After work on April 12th, 1977, about 6:30 p.m., Robert Sikma provided me with a note of a phone conversation had between the U.S. Attorneys office and a witness by the name of Marvin Bragg. I will read that note to your Honor.

THE COURT: Very well.

THE CLERK: The note provided to me by Robert Sikma reads as follows:

{5187}

Marvin Bragg called at 2:30 -- emergency. I called him at 236-8181, Moorhead, Clay City Jail at 2:45; and the note represents that Mr. Bragg told the United States Attorney the following:

Yesterday after court the turnkey started to put Peltier in same cell with Bragg. Bragg ran out and told him that he was testifying against that man. They then put him in another cell.

Later he got a note from Peltier through a trustee who assured it was destroyed thereafter, telling him that if he didn't get back on for the defense and change his testimony, they would get his wife as well as him.

The other guy (Indian) on same matter was also given the word.

Bragg was told to contact the defense this way: Dial 233-4909, and ask for John.

I thought about the contents of the note on the way home. I contacted Judge Benson who felt I should attempt to confirm the allegation.

I obtained approval, as requested by the jailer, from Chief Deputy United States Marshal Warren to speak with Marvin Bragg.

Mr. Bragg restated what he had said in the note of the phone conversation and added that he had come very close to changing his testimony. He stated that five {5188} additional years for perjury were worth it to save his life. He told me that he had the phone number, 233-4909, in his pocket at this time, to call if he wanted to change his testimony.

I asked him to describe who the trustee was who passed the note from Peltier to Bragg. He did not know his name, but described him as being a tall dude with long blonde hair and with glasses.

I checked with the jailer, and the jailer advised me that there were about four persons in jail who fit this description.

I talked with one Dave Williams who denied passing any note. Another person, Ron Felix, was apparently asked by either the jailer or Dave Williams, and he also denied passing any notes. The jailer felt that it was very probable, however, that a note could have been passed by a trustee.

The note attempted to get Bragg to come back to court and change his testimony about promises made by the FBI.

Bragg stated that he was in the cell with "two Missouri boys", and they and the trustee made sure that the note from Peltier was destroyed.

The jailer confirmed that Bragg had spent the night with two Missouri boys.

{5189}

I also talked with Marion High Bull. He had spent the night in the same cell as Peltier.

He said, "I said a lot of things last night to save my life," or words to that effect. I told him the story that Bragg told me.

I might mention at this time he indicated he was afraid to talk at his end, so I related the story to him that Bragg told me. He agreed that he had been threatened in an attempt to get him to change his story.

The last thing, the name of the jailer that I talked with was a gentleman by the name, Ed Boldt -- (spelling) B-o-l-d-t.

I checked -- the only other thing I have done on this, Judge, is I have checked the phone number given to me by Bragg, and that phone number -- I asked Anne Kuschel of our office to check on it; and with her memory she advised me that that number was familiar to her, and that that is the phone number listed on the bond given by John Trudell, an address in Moorhead; and we checked with the phone company, and that phone is registered to Dino Butler.

That is all I have.

THE COURT: Counsel for the defense may ask Mr. Hanson any questions.

MR. TAIKEFF: No questions.

{5190}

THE COURT: Counsel for the Government may ask Mr. Hanson any questions that you have.

MR. HULTMAN: I don't have any questions, your Honor.

THE COURT: Very well.

Bring in either Mr. Bragg or Mr. High Bull.

I believe you stated that was April 12?

THE CLERK: Yes, that happened on April 12, your Honor.

THE COURT: Did you talk to Bragg and High Bull in person or by telephone?

THE CLERK: By telephone.

THE COURT: On April 12?

THE CLERK: On April 12, yes. Yes, sir.

THE COURT: Very well.

Mr. High Bull, will you come forward and sit in this chair, please?

(Whereupon, the following examination was had of Marion Allen High Bull:)

By THE COURT:

Q Mr. High Bull, this gentleman sitting in that chair directly across from you is Ralph Hanson. He is the Deputy Clerk of Court of this court, and Mr. Hanson has just made statement as to a conversation that he had with you on April 12th by telephone, concerning some conversation that you and he had relating to some threats that he states you told him {5191} about on the telephone, the threats having been alleged to have occurred when you spent the night with Leonard Peltier in a cell.

Would you tell us in your own words what that conversation was -- first of all, what the conversation was that you had with Mr. Hanson?

A Well, the evening that I was sent over to the county jail, I was put into a cell which I didn't know at that time Leonard stayed in; and I was trying to figure out some way, you know, after I found out it was his cell, trying to figure out some way to make up a story or something so that I won't be harassed or threatened in any way, you know. Well, anyway, after that Leonard came in; and the other guy, he just slipped by him and went out the door, and I was left in there; and Leonard come over and as he was walking over, he was giving me a mean look. I knew then what I was going to get, you know. You know, some beating or something like that. That's the only thing that came to my mind because I was in there. I was actually called as a --

Q (Interrupting) Defense witness?

A (Continuing) -- defense witness, but the statement that I put in, that's what the whole thing was about; and that I was -- he told me to tell the Court and in some way to relate that the FBI had something to do with me making that statement; and I gave him a statement which was true in some parts, which wasn't, {5192} as long as it kept me from getting hurt or anything, well, you know. Well, I told him, I said that I would get up on the stand the next day and change my statement, but I wanted out of that cell and I had to keep myself from --

Q (Interrupting) You told who that you would get up on the stand and change your statement?

A Leonard.

Q You told him, and why did you tell him that, did he say anything to you?

A No. Well, you know, he asked me so I had to. Well, I was in the same cell he was.

Q I know. What did he ask you, what did he say to you?

A He said, "The only way that you can knock that statement out," he says, "is get up there and say something that the FBI threatened," or something like that, you know, "on you." That's why I gave that statement -- and that would knock that statement out.

Q Were any threats made to you?

A That's the only thing I can say right there.

Q Pardon?

A That's the only thing I can say right there, other than that, well, everybody knew the word was out that we were snitches, and that was it. Being a snitch, your life is in jeopardy, you know, anybody -- you are anybody's game.

Q And you did tell Mr. Peltier that you would go up the {5193} next day and change your statement?

A Only to get out of the cell house.

Q Did you get out of the cell?

A Yes, the next morning. I wrote a note out, and I got out of there just that fast.

Q Wrote a note out to who?

A The jailer.

Q To the jailer?

A Yes.

Q What did you put in that note?

A I told him I wanted to get ahold of the U.S. Marshals. I had something to tell them, and that I wanted out of that cell as soon as possible. I didn't want to stay in it.

Q Why were you fearful of Leonard?

A Because of the statement that I made against Jimmy Eagle.

THE COURT: Mr. Taikeff, do you have any questions?

MR. TAIKEFF: I think I may have more than one question. It would depend upon the answer whether I have any additional questions.

By MR. TAIKEFF:

Q I have listened to what you said, and I want to make sure that I understand it.

When you got into that cell, you realized that Leonard was in that same cell although he wasn't present yet, that he was going to come into that cell, is that right?

{5194}

A No.

Q When you first went into the cell, who was in there?

A There was other inmates in there.

Q Was Leonard in there?

A No.

Q So then you realized before Leonard got there that he was going to be in there?

A Not after one of the guys in there said his cell was at the end.

Q But before he ever showed up, you knew he was coming, right?

A Right, trying to get out of there.

Q That's when you started worrying?

A No, just didn't want to be put in the same cell with Leonard.

Q Before Leonard got there, you started worrying about the fact that you might be in the same area with Leonard, isn't that right?

A Right.

Q And the reason you were worried was because you knew that you had given a statement against Jimmy Eagle, right?

A Right.

Q Not because of anything that Leonard said to you, isn't that correct?

A Well, he is the one that said it.

{5195}

Q Before he got there is what I am talking about, before he got there you were worried about something, weren't you?

A Right.

Q What were you worried about?

A Him.

Q And that was because you had given a statement against Eagle, isn't that correct?

A Yes, correct.

Q That was not because of something he said to you, right or wrong?

A It was on account of him too.

Q Wait a second. We are talking about before he even showed up, you were worried because of things in your own head, not because of things he said to you, isn't that right, before he showed up?

A No.

Q No? What did he say to you before he showed up?

A Who, Leonard?

Q Yes.

A Nothing.

Q So then you were worried about things because of your own private thoughts, isn't that right?

A No.

Q Well then, what were you worried about, what was the cause of your worry before you saw him there, you understand I {5196} am saying "before you saw him there"?

A When I was back in the cell over there, when you and I first talked.

Q In the Marshal's office?

A Right.

Q Yes.

A There I told you that I didn't want to testify for or against anyone because as soon as I got up on the witness stand to testify for or against anyone, that I would be a snitch.

Q Yes, You told me you were worried either that you would be in trouble with the prison authorities or with the prison population, so you would rather not testify for anybody, isn't that basically what you told me?

A Yes, because -- not because of testifying, but because of the statement that I made.

Q I understand you were afraid that it would come out in open court that you had once talked to the FBI and told them about Jimmy Eagle's statement?

A Right.

Q And you were afraid if that got back to Leavenworth where you are now doing a very long sentence that you would be in some kind of danger?

A Right.

Q So that was the beginning of one worry. We are talking about a different worry here, we are talking about a worry that {5197} you had after you got back from testifying, do you understand that?

A Um-hum.

Q Now, I think you said you started worrying the minute you found out that you were in the same area as Leonard, isn't that a fair statement of what you said?

A Yes.

Q Isn't that true?

A Would you repeat that again?

Q Yes. What you have told us so far is that you started worrying about this situation even before Leonard showed up?

A Start worrying about what -- oh, yeah, the statement, yeah, the statement that I had to give up there.

Q After you testified they brought you back to Moorhead, to the jail across the river?

A I don't follow you.

Q All right. We will take it in small doses.

You testified in this courtroom before Judge Benson and a jury?

A Yes.

Q After that where were you taken?

A Back to Moorhead.

Q All right. That's what I am talking about.

When they took you back to Moorhead, was Leonard there?

A No.

{5198}

Q They put you in a cell, right?

A Right.

Q You found out Leonard was in that same cell area, right?

A Right.

Q You started worrying, right?

A Yes.

Q Up to that point Leonard hadn't spoken to you, right?

A No.

Q Then Leonard showed up, right, correct?

A Right.

Q You had some conversation with Leonard?

A Small.

Q Tell us everything he said to you, not what you said to him, just the things he said to you.

A Well, he said something like -- he was referring to this statement that I made.

Q About Jimmy Eagle?

A Yes, and that one of these days I will be going off living with my own people, and that it was the Wausheshu --

Q Wasusheshu, Indian word for white people.

A Anyway, it was the white people that we had to worry about, and not testify against another brother.

Q Did he say anything to you?

A Not directly to me.

Q Did he say anything that you overheard that he said to {5199} anyone else, that you heard with your own ears, from his mouth?

A Well, he said that we took the stand, and he put the word out on us that we were snitches.

Q He told you that he would put the word out?

A He didn't tell us, I overheard.

Q You overheard him say to somebody else?

A Yes.

Q In fact, you are a snitch, right?

A You might say that.

Q And snitches are problems for people in jail, right, isn't that true?

A Right.

Q And so he just told other people in jail to watch out for you because you were a snitch, right?

A Right.

MR. TAIKEFF: I have no further questions.

By THE COURT:

Q Was any suggestion made to you that you should change your testimony that you had given in court?

A Yes.

Q And who made that suggestion?

A Leonard.

MR. TAIKEFF: What words --

THE COURT: (Interrupting) Just a moment, I am questioning.

{5200}

Q (By The Court) Who made that suggestion?

A Leonard.

Q How was it made to you?

A He said the only way that you can clear yourself is to get up on the witness stand, "Well, I will have my attorneys get you on the witness stand to change your statement."

Q And who did he say that to?

A Me.

Q He said that to you directly?

A Yes.

By MR. TAIKEFF:

Q Did he tell you he wanted you to tell the truth about what happened? "Yes" or "no".

A Told me to tell the truth about what?

Q About how you came to give that statement about Jimmy Eagle.

A No.

Q What did he say, he wanted you to lie?

A Yes.

Q Tell us what he said, tell us what his words were.

A Well, I can't say it was a lie or not, he just told me to get up on the witness stand and change it, say something to the effect that the FBI threatened, or something like that, so I can knock that statement out.

Q Didn't he say to you that that was based on his belief, {5201} that that is what really happened?

A No.

Q Are you prepared to take a lie detector test on this question today?

A On what question?

Q On what happened in the jail, are you willing to take a lie detector test so we can find out what really happened?

THE COURT: Just a minute.

MR. TAIKEFF: I asked him whether he was willing to, your Honor.

THE COURT: First of all, there are no lie detector tests going to be given. I am simply taking a record of what has been alleged.

MR. TAIKEFF: I would like the record to reflect my client is ready to take a lie detector test on the subject. I want to know if he is willing.

Q (By Mr. Taikeff) Are you willing to take a lie detector test?

A Yes.

Q You are?

A Yes.

By THE COURT:

Q Was any other statement made to you by the Defendant other than what you have told us now?

A No.

{5202}

By MR. TAIKEFF:

Q By the way, the time you are serving is for killing two of your family members, isn't that correct?

A Yes.

THE COURT: Does the Government have any questions?

MR. HULTMAN: Your Honor, I don't have any questions.

THE COURT: Very well.

The Marshals may take Mr. High Bull out. Mr. Bragg should be brought in.

MR. VOSEPKA: Your Honor, perhaps the record should reflect that the note that Mr. Hanson read which had been provided to him by Mr. Sikma was a note that I prepared after a telephone conversation with Mr. Bragg.

THE COURT: Very well.

(Whereupon, the following examination was had of Marvin Bragg:)

By THE COURT:

Q Mr. Bragg, the gentleman sitting across from you in that chair over there by the wall is Mr. Ralph Hanson. He's the Deputy Clerk of Court of this court, and he has reported to us a conversation that he had with you on April 12th concerning some threats that you reported to him as having been made to you while you were at the Clay County Law Enforcement Center over in Moorhead.

Will you tell us in your words what conversation you had {5203} with Mr. Hanson?

A I told him about a note I received from a trustee about I could have a second chance to clear my statements that I made against Mr. Peltier or else I was through, you know.

He told me the statements that I made -- I could get up on the stand; the attorneys would call me back to court, I could get up on the stand and change my whole testimony around, that the FBI had made me say whatever I had to say.

Q And from whom did you receive this note?

A I got it from a trustee.

Q Do you recall specifically what the note said?

A Just somewhat.

Q Well, to the best of your ability.

A What I was supposed to do, you know, that I would be called back to court by his attorneys, and that I would have a chance to straighten up some statements that I made.

Q And the trustee that gave you the note, do you know who he is?

A Not personally. No, I don't know his name.

The note I had I was supposed to read, and I was told to tear it up. The two dudes in the cell with me made sure I tore the note up.

Q You did tear the note up?

A Yes, sir.

Q And the note was to the effect that you should go back {5204} on the stand and change the testimony that you had previously given?

A Yes, sir.

Q And change it in what respect?

A In his behalf.

Q And what were you supposed to say?

A That I made up lies about everything I said.

Q Did you have any conversation with Mr. Peltier himself?

A No, sir.

THE COURT: Do you have any questions?

MR. TAIKEFF: Yes, I do.

By MR. TAIKEFF:

Q Do you know who wrote that note?

A No, sir, I don't.

Q Have you ever seen Mr. Peltiers handwriting?

A No, sir.

Q So therefore --

A (Interrupting) Not until I received the note.

Q I beg your pardon?

A Not until I received the note.

Q How do you know it was his handwriting?

A I don't really.

Q Did you ever have any conversation with him?

A No, sir.

Q Ever in your life?

{5205}

A No, sir.

Q Now, the guy who brought you the note, did he wait there while you read the note?

A Yes, sir, he did.

Q And was he there while it was torn up?

A Yes, sir.

Q Then what was the involvement of the other two people in the cell in making sure that the note should be torn up?

A Because they know Mr. Peltier. They were all a part -- and in the cell with Mr. Peltier -- supposed to be escapees from the Jackson Penitentiary in Missouri.

Q But my question is: If a guy brought you a note and he wanted you to read it, and then he wanted to make sure that that note was destroyed, why didn't he just show it to you and then tear it up himself; what was the involvement of the other two people to make sure that the note got torn up?

A Because they was supposed to pass the word I was a snitch, and he was supposed to make sure and went back and told Mr. Peltier that the note was tore up.

Q Who is "he"?

A The trustee.

Q But if he was there throughout, he could have torn the note up himself, right?

A He could have.

Q So what was the necessity of involving the other two {5206} people?

A Evidently he was told to make sure that they seen to it that I tore it up.

Q But he wasn't leaving the note with you, was he?

A No, he was leaving it with the two dudes in the cell with me.

Q I thought you said he stayed there throughout the time and then he could have torn up the note himself?

A He did stay there.

Q Well then, explain to us what was the involvement of the other two people if he was there and could take care of everything that was supposed to be taken care of.

A The involvement, I guess they were to make sure that I tore it up too.

Q You didn't tear it up, did you?

A Yeah, it was tore up.

Q It was torn up. You didn't tear it up, did you?

A No, sir, I didn't.

Q Who tore it up, the guy that brought it to you?

A No, the two in the cell.

Q The man who brought you the note showed you the note and then he handed the note to the other --

A (Interrupting) No. He handed it to the other two in the cell. They handed it to me, and I read the note.

Q He stood there all the time?

{5207}

A Yes.

Q He gave it to them first?

A Yes.

Q Are you willing to take a lie detector test in connection with this thing?

A Sure am.

MR. TAIKEFF: O.k. No further questions.

(Counsel confer.)

MR. HULTMAN: I may have one question, your Honor.

By MR. HULTMAN:

Q Were you put in any cell at any time in which Mr. Peltier was?

A Yes, sir, I was.

Q Now, when was that?

A As soon as I got to the jail over there I was put in the cell Mr. Peltier was in.

Q Is that when you first came to the jail, you were put in the same cell with him?

A He wasn't in there at the time.

Q He wasn't there at the time?

A No, sir.

Q All right. When then did he come to the same cell area?

A After he come from court.

Q That was on the same day that you arrived?

A Yes, it was.

{5208}

Q You didn't have any idea until he came into the cell that he was going to be there, did you?

A No, sir.

Q Did that surprise you?

A I seen Mr. Peltier, I ran out of the cell.

Q O.k. All right, what was the reason that you ran out?

A Because I knew I was in there and I had made statements towards him at the time, but I was informed from the officers that I was there to testify in the defendants behalf.

Q Would that sort have been a normal reaction for any of us if you were in the same cell with a person who might be affected by the testimony, you didn't want to stay there, is that the conclusion you came to?

A That's right.

Q Did anybody -- did anybody talk to you from the time you came here, except the telephone conversations you have had, have you talked to any lawyers at all about anything since you have been here?

A No, sir, I haven't.

MR. TAIKEFF: You talked to me in the Marshal's cell for about five minutes.

MR. HULTMAN: That's what I was just going to get to.

Q (By Mr. Hultman) Except for the conversation you related just a few moments ago in response to a question by Mr. Taikeff, the gentleman who just spoke?

{5209}

A No, I haven't.

Q All right. Did anybody from the Government at all talk to you since you have been here, at all?

A No, they haven't.

Q Did the note that you -- did you read the note?

A Yes, sir.

Q Did the note give you any instructions of any kind as to whether or not you could get in touch with anybody at all?

A Yes, sir. It was John. I got the number

Q You what?

A I have the number.

Q You have the number?

A Yes, sir.

Q Was the number on the note?

A Yes, sir.

Q Did you write it down or something then?

A Yes, sir, I got the note.

Q Do you have it now?

A (Handing).

Q Would you indicate what that number is?

A 233-4909.

Q And how was it that you got that particular number?

A I got it off the note.

Q Do you have any idea what that number represents or who; is or anything?

{5210}

A No, sir, I don't. I was told if I have any trouble from the FBI about changing my testimony, I could just call that number.

Q Now, as I understand it, you then called or asked to call someone, is that right?

A Yes, sir.

Q And did you get a chance to make a phone call then?

A Yes, I did.

Q And where was it that you called?

A I called my mother at first, and then I tried to call here, the courthouse.

Q All right. Did somebody then call you back from the courthouse here?

A Yes, sir.

Q And would that have been Mr. Vosepka, do you know what was that name or anything?

A I don't remember the name. He just told me he was the one that swore me in.

Q All right. O.k. Would that have been Mr. Hanson over here, if you recall?

A Yes, sir.

Q You didn't know who it was, he told you that, that he was the one that swore you in?

A Yes.

Q All right.

{5211}

Now, did you also have a conversation with somebody here in the courthouse who called you back about what you had seen and done?

A Yes, sir.

Q And do you remember what that man's name was at all?

A I don't remember his name.

Q Did he tell you who he was or from what office he was?

A Yes, sir.

Q What office did he tell you he was from?

A I can't remember He told me the Judge had told him to get in contact with me because I made a statement and stuff. He wanted to find out what it was, what was happening.

Q All right. Did you then tell him what it was you had seen or observed and so forth?