VOLUME VII
Pages 1209-1446
{1209}
THURSDAY
MORNING SESSION
March 24, 1977
Pursuant to
adjournment as aforesaid, at 9:00 o'clock, a.m., on Thursday, March 24,
1977, the Court met, present and presiding as before; and the trial
proceeded as follows, the Defendant being present in person, outside of
the presence and hearing of the jury:
MR. TAIKEFF:
May counsel approach the bench?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. TAIKEFF:
Your Honor, I asked to approach because the matter to which I want to
address myself was taken up by your Honor in chambers, apparently because
your Honor felt it was of a sensitive nature.
I made
inquiries last night concerning the so-called sighting of a certain person
sitting in the audience that your Honor observed. Your Honor did not state
to counsel what it was that your Honor observed, and I would like to
report to your Honor what I learned by making my inquiries last evening.
I was told
that apparently your Honor has misinterpreted something which he has seen,
and here is what I was informed: That he wears around his neck a leather
thong on which is a medicine bag, and that he is a holy {1210} man who
frequently prays; what he does when he prays is that he holds that
medicine bag and then recites a prayer. If your Honor saw that, your Honor
was not seeing any signal but your Honor was seeing something which he has
done frequently and for a very long time. There is nothing new or special
in this courtroom.
MR. HULTMAN:
Could I respond, counsel?
Your Honor, I
don't in any way wish to imply I am an expert in the area, but my wife is
of Indian heritage and I do have some knowledge of some of the customs and
so forth.
From that
standpoint, as well as from an educational reading and so forth, I have no
disagreement with what counsel is saying; but I would like to point out on
the record that this very act in the presence of someone who likewise
believes in the same things has an impact on that individual if he is
observing it at that moment; that that has something to do with that
individual also in terms of what is right, what is wrong and what is true
and what is untrue.
Now, so what I
am saying is it is like if, for example, someone were to stand and bow his
head and make a prayer while any one of us were on the stand in our
presence, that would have a relationship to any one of us sitting in the
witness chair at that stand; and I submit {1211} that in the case of an
Indian witness, this very event would have far, far more significance than
the one to which I refer.
So what I am
saying is merely that the acts themselves, if the witness is in a posture
of where he is seeing them, that even though there is nothing intentional
about it in any way, that it does have an impact on that witness.
MR. TAIKEFF: I
appreciate what Mr. Hultman said. I do want to point out to your Honor
that I took yesterday's colloquy to mean that there was some sort of
prearranged signals that would indicate to a witness whether an answer
should be negative or positive, and I was offering that to assure the
Court to the extent that my inquiry would, that there was absolutely no
such thing. As to the merits of what Mr. Hultman says, I don't know
exactly how I feel about it. It seems to me that if each person's God were
present in the courtroom so that a witness could see his own God and be
reminded of the seriousness of what was going on and the necessity of
telling the truth, I don't know that I would necessarily object to that.
There are many courtrooms where it says "In God we trust." That's a
constant reminder of the seriousness of what goes on in our courtrooms. I
don't mean to resist the comment by Mr. Hultman in any way. I just wanted
to assure all, if that were {1212} possible, that this was not some kind
of a prearranged situation.
THE COURT:
Well, the motion that he made that I observed was not the type of a motion
that you just described. As I mentioned the Clerk had been advised about
it. I had suggested to the Clerk that he watch for that kind of thing
because it had been reported that it was going on the day before, and the
Clerk reported to me that this particular individual was signaling. I did
not ask the Clerk as to what type of signal it was, but I observed the
individual when the next question was asked, and the signal immediately
went up; and I have not advised the Clerk as to what signal I observed. I
do not know what he observed. I will ask the Clerk at this time to state
the type of signal.
THE CLERK: It
was, as Mr. Taikeff indicated, going to this throat. Just to mention one
thing, that would start when the question was asked and the hand would
remain there until the answer was given and then it would be dropped, and
then when the next question was asked, he would again go to his throat;
and then apparent eye contact with the witness. It would remain there
until the answer. In both cases, I think it was negative answers he was
giving.
{1213}
MR. TAIKEFF: I
wonder if Mr. Hanson would state for the record if he has revealed that
fact to anyone prior to this moment?
THE CLERK: No.
THE COURT: He
had not revealed it to me.
MR. TAIKEFF: I
specifically wanted it to reflect the record whether any of the defense
counsel could have known what his observation was.
MR. HULTMAN:
Or any of the Government, we had no knowledge.
THE COURT: The
signal I observed, his hand went to his forehead, something like this
(indicating), and kind of drew it across, and it went up after the
question was asked. This person's hand went up to his forehead, and he
made some kind of a motion on his forehead and then dropped it.
MR. LOWE: Your
Honor, could you state whether that was an isolated occasion or did that
happen more than one time?
THE COURT:
This is the only time I observed it because the Clerk had been advised to
watch for it. I was not paying any attention to the audience. It had been
reported that signaling had gone on the day before, and the Clerk reported
to me and I watched the individual when the next question was asked. The
hand signal went up {1214} to the area of his forehead and his eye.
MR. HULTMAN:
Counsel, might I put on the record the things that I observed the day
before and to which I had specific reference to Dino Butler and the person
sitting next to him, and there were none of the things --
MR. TAIKEFF:
(Interrupting) I think that's clear on the record. I wanted to offer what
I discovered last night.
THE COURT: I
appreciate that information.
MR. TAIKEFF:
While we are here, I understand counsel has arranged for the witness,
Norman Brown, and I trust by one mechanism of another the defense counsel
would have an opportunity to confer with Mr Brown's counsel about possible
interview in the presence of his counsel sometime prior to the Government
calling him to the stand?
MR. HULTMAN:
Your Honor, I would suggest that we do that now because I do intend to
call this witness as my next witness.
THE COURT:
What do you mean "now"?
MR. HULTMAN:
Well, as I say, I am ready to call him, and I intend to call him as soon
as we finish with this.
THE COURT: Mr.
Coward is to be cross-examined?
MR. HULTMAN:
Yes, and when Mr. Coward is finished, I intend to call Mr. Brown as the
next witness; and I think we could probably dispose -- at least go to Step
1, {1215} that counsel visit with counsel and determine whether or not he
wishes to or not; and that might resolve matters very quickly. If then
there is an agreement to do it, then we would have another problem in
terms of when that would be then be done; but I would suggest we did not,
as in the case of the two or other three requests, we had none, so we were
prepared to immediately proceed.
MR. TAIKEFF:
Would your Honor prefer that we go do that before the jury comes in so we
can continue without interruption?
THE COURT: On
the other hand, I would like to minimize the time.
MR. HULTMAN:
If we did that, we might speed things up.
MR. TAIKEFF: I
would be prepared, in spite of the fact that I need a break, like
everybody else, and so does Mr. Lowe, if the answer is "yes", to conduct
that interview during the morning recess. The witness will probably be
cross-examined during that time, so there will probably be not any extra
break in the proceedings.
THE COURT:
Well then, the procedure would be to recess at this time to give you an
opportunity to confer with Brown's lawyer.
MR. LOWE: Are
they here?
{1216}
MR. HULTMAN: I
haven't seen them, but the lawyer is here, and they are in the witness
room, the same place that you were before.
THE COURT: The
Court will recess for five minutes. (Whereupon, the following proceedings
were had in the courtroom:)
THE COURT: The
Court is in recess for five minutes.
(Recess
taken.)
{1217}
MR. TAIKEFF:
May I report to Your Honor?
THE COURT: You
may.
MR. TAIKEFF:
We have spoken with Counsel and he has indicated his willingness to have
us confer with his client in his presence and upon our suggestion he asks
Your Honor that a court reporter be sent so that the matter can be taken
down.
THE COURT: And
when would you intend?
MR. TAIKEFF:
At the morning recess.
THE COURT: You
would expect to get it completed in that time?
MR. TAIKEFF:
We're certain we can accomplish what we have to accomplish during that
period of time.
THE COURT:
Very well.
A court
reporter will be asked to attend. Does the United States intend to call
another witness at this time or will Mr. Coward be called?
MR. SIKMA: Mr.
Coward would be recalled, Your Honor.
THE COURT: Mr.
Coward may be recalled. The jury may be brought in. (Whereupon, the
following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT: You
may proceed.
MR. TAIKEFF:
Thank you, Your Honor.
{1218}
BY MR. TAIKEFF:
CROSS-EXAMINATION
Q Good
morning, Mr. Coward.
A Morning,
sir.
Q Mr. Coward,
in June of 1975 where was your permanent assignment, your regular
assignment?
A Rapid City,
South Dakota.
Q And as such
where would you say you spent most of your time?
A On the Pine
Ridge Indian Reservation.
Q Would it be
fair to say that essentially all of your working time was either on the
reservation or in connection with matters that arose on the reservation?
A That's
correct, sir.
Q How many
agents were there like you functioning in that capacity at or about that
time?
A There were
12 of us assigned to the resident agency at Rapid City, South Dakota.
Q And did that
account for all the agents who were working in a full time or near full
time capacity on the reservation at that time?
A On the Pine
Ridge Indian Reservation?
Q Yes, sir.
A Yes, sir.
Q Were there
other reservations within the jurisdiction of your office?
A Yes, sir.
{1219}
Q And were
there other agents assigned to those reservations?
A Yes, sir.
Q
Approximately how many?
A Well, I
believe there was approximately four at that time that were assigned to
Pierre, South Dakota resident agency.
Q And where
were they working?
A They would
work the Rose Bud Indian Reservation.
Q That is in
some sense or another adjacent to the Pine Ridge, is it not?
A It's
contiguous; yes.
Q And were
there any outside agents, that is to say agents normally or permanently
assigned to other offices who were on temporary duty?
A Yes, sir.
Q How many
were there?
A You're
speaking of June of '75?
Q In the
spring of '75 before this incident in particular.
A Okay.
Occasionally people would come in and out and give us a hand; yes.
Q Could you
give us some sort of an average figure representing in the spring of 1975
the number of FBI agents who were employed essentially full time on those
two reservations in South Dakota?
A There are
approximately 16 men employed full time working {1220} out of those two
particular offices.
Q And any
people on temporary assignment in addition to those?
A Well, that
was sporadic. When the need arose we would ask for additional help.
Q And what was
your actual experience in that regard? How often and how many?
A Well,
several times we'd ask for help and received it.
Q In what
numbers of people: two people, ten people, twenty people?
A The most at
any one time would be six people and that would have been the week
preceding the day that the two agents were killed.
Q Do you know
the exact or approximate combined population of those two reservations?
A I do know
that Pine Ridge Indian Reservation at that particular time was
approximately 12,000 people.
Q Do you have
any idea what the comparable figure was for Rose Bud?
A I don't. But
I believe it was smaller.
Q Based on
your own knowledge and experience, if you possess such, would you say that
the number of agents per thousand residents was comparable to or
substantially higher than most parts of the United States?
A I don't
quite understand what you mean.
{1221}
Q Well, let's
say in New York City there are about eight million people and maybe 100
agents. On the Pine Ridge and Rose Bud there may have been 20,000 people
and 25 agents. Do you have any idea whether that was in the FBI's point of
view a high crime area that required a higher ratio of agents to people
than a place like New York City?
A That's an
administrative decision as to how many people are required in what
particular location.
Q You don't
have any information on the subject for comparison purposes, I gather.
A The only
thing I can tell you is that years ago I think as far as police records
were that you had to have 1.1 or 1.3 percent policemen per thousand.
Q How long did
you work the reservation, how long were you assigned there?
A I came there
during Wounded Knee in 1973.
Q And from
that time until June of 1975 did you find that was a relatively high crime
area?
A My opinion?
Q Yes, sir.
A Yes.
Q And in the
main would you say that those crimes were crimes of violence as opposed to
white collar crimes or other such crimes?
A Well, that
was the particular crimes that our responsibility, {1222} that was my
responsibility; yes.
Q We're
talking now about assaults, murders, things of that sort?
A Yes, sir.
Q Are you or
have you ever been a member of a S.W.A.T team?
A I am.
Q Would you
briefly tell the court and jury what special function that is, what that
means.
MR. SIKMA:
Your Honor, I'd object to this as totally irrelevant to the case.
THE COURT:
What is the relevancy?
MR. TAIKEFF:
The relevancy, Your Honor, is to give the jury some idea of what life is
really like on the reservation so they won't get some notion it's like
living in Fargo or Moorhead.
MR. SIKMA:
Your Honor, I would submit that there is still no relevancy shown. There
are S.W.A.T. teams all over the United States.
MR. TAIKEFF: I
would call to Your Honor's attention the fact there has been considerable
evidence concerning the possession of weapons by the defendant and others
whom he was living with and I think Your Honor would recognize that for
those of us who live in more conventional environments that may have
certain implications and I think the defendant should have an opportunity
to show why such a thing occurred.
{1223}
THE COURT:
This is a matter to be resolved by the Court if the defense determines to
offer evidence in the case.
MR. TAIKEFF:
I'm willing to adopt the witness for that purpose as my own witness if
Your Honor chooses to allow.
THE COURT:
Then it's out of order because the cross- examination is limited to the
subject of the direct examination.
MR. TAIKEFF:
That's conventionally true, but it's within the Court's discretion to
allow the other side to adopt the witness as its own in order to permit
the trial to flow more smoothly and not require the witness to wait around
for a week or two. I would abide by whatever Your Honor's suggestion is.
{1224}
MR. SIKMA:
Your Honor, I would nonetheless admit that whether it's counsel's witness
or any other witness that it's, it remains totally irrelevant to the
subject at hand. It does not, this agent's training or other agent's
training, does not develop a legal right or obligation on the part of
those persons in the area where these agents are working to have an
opportunity or a right to carry an exceptional or additional number of
firearms.
THE COURT: On
the objection of counsel that it is irrelevant, the witness will be, the
cross-examination will be limited to the scope of the direct examination.
MR. TAIKEFF:
Yes, Your Honor.
Q (By Mr.
Taikeff) Were you one of those who participated in the investigation which
followed the events of June 26, 1975?
A Yes, sir, I
was.
Q And during
the six months that followed the incident, that is to say for the balance
of the year 1975, do you know how any special agents of the FBI were
involved in that investigation?
MR. SIKMA:
Your Honor, once again I would object as totally irrelevant.
MR. TAIKEFF:
Now, Your Honor --
MR. SIKMA:
Question of guilt or innocence of the defendant.
{1225}
MR. TAIKEFF:
It is not in any way irrelevant because it is crucial with respect to the
role played by this particular witness. And I will develop that. This is
really a foundation question for other matters to be gone into on
cross-examination.
THE COURT: I
will allow you to proceed.
MR. TAIKEFF:
Thank you, Your Honor.
Q (By Mr.
Taikeff) Do you recall the question, sir?
A Would you
repeat it, please.
Q I'll restate
it if I can. I asked you in the latter part of 1975 after the incident if
you had any knowledge as to how many special agents of the FBI were
involved in the investigation of these deaths?
A No, sir, I
do not.
Q How many
agents did you work, or come in contact with in connection with that
investigation?
A Well, I
worked with the members of the Rapid City resident agency.
Q Was Agent
Adams one of those people?
A Yes, sir.
Q Was Agent
Hughes one of those people?
A Yes, sir.
Q Who were the
other people? Agent Price?
MR. SIKMA:
Your Honor, I would object. The question is too broad.
{1226}
MR. TAIKEFF:
It couldn't, Your Honor, have an answer that exceeded more than nine
names. According to the testimony there are only twelve agents assigned.
THE COURT: You
may proceed.
MR. TAIKEFF:
Thank you, Your Honor.
Q (By Mr.
Taikeff) The names of the other people you worked with on this case?
A Well, there
was Agent Price, Agent Skelly, Agent McCarty, Agent Wiley, Agent O'Clock.
Those were some of the members of the RA that I worked with.
Q How about
Agent Waring?
A Did I work
with them personally?
Q Yes.
A Yes, I had.
Yes.
Q And he was
working on this case, was he not?
A Yes, sir, he
was.
Q And did you
have occasion from time to time to confer with these people that you've
named?
A Yes, sir.
Q About the
facts of the case?
A Yes, sir.
Q Did you read
each other's reports, 302's?
A I did not.
Q Do you know
of your own personal knowledge whether there as any exchange of
information by reading each other's 302's?
{1227}
A Personally?
No.
Q Have any
conferences in groups of three or four?
A Well, we had
several conferences, yes.
Q How often,
let's say during the month following the incident?
A We had
conferences every day.
Q And on the
average, I'm not looking for you to be precise, just give us an idea, how
much time did you spend with each other in conference about what was being
developed concerning the case?
A Well, it was
our practice to have one in the morning and one in the evening so we could
just keep up, you know, everything together.
Q Now, I'm not
asking you for details, just a general statement. Did you discuss from
time to time a developing theory of what happened?
A Well, we
were trying to determine, you know, what happened. But I wouldn't call it
a theory.
Q Well, I
gather that you collected facts and as time went you collected more and
more facts; isn't that true?
A That's
correct.
Q And there
came a time early in the investigation, didn't there, when what
information you had gave you some idea of what may have taken place that
day?
A Well, that's
true, yes.
{1228}
Q Do you
object to my referring to that as a theory of that moment, at that moment
as to what had occurred? Can we use that as a shorthand?
A Yes, we can.
Q Okay. Now,
was there an agent or two or more who were, if not in an official
capacity, at least by virtue of what they were doing, in charge of the
investigation other than the agent ho was in charge of the entire office?
A Well, there
were people who, you know, were our bosses, yes.
Q Okay. But in
terms of a subboss, was there some person or were there some persons who
were the key agents investigating this case?
A Well, there
was a man who was assigned the case.
Q Who was
that?
A Dean Hughes.
Q So nominally
he was the head agent on this case?
A Yes.
Q Was he one
of those people with whom you met from time to time?
A Yes, sir.
Q Who were the
agents who were present most of the time in those morning and evening
meetings?
A Well, of
course those who were there in town that weren't doing other things. But
everybody who was there working on the {1229} case was there every day.
Q Was Adams
frequently there?
A Yes, he was.
Q Was Waring
frequently there?
A Yes, sir.
Q Was Skelly
frequently there?
A Yes, sir.
MR. TAIKEFF:
Excuse me one moment, please.
Q (By Mr.
Taikeff) Did you have any personal relationship with either of the two
agents who died?
A Yes, I did.
Q With one of
them or both of them?
A Both of
them.
Q Did you
consider them to be your friends as well as your professional colleagues?
A Yes, sir, I
did.
Q So I assume
then that you viewed this as both a case you were working on and a matter
of personal concern?
A Yes, sir.
Q Is it fair
to say that you were quite angry about the loss of your colleagues and
friends?
A I don't
think you could say I was angry.
Q It was worse
than that?
A Well, I was
upset at the loss.
Q Severely
upset?
{1230}
A I wouldn't
say severely.
Q Intent upon
cracking or solving this case more than most?
A No. I
wouldn't put it that way.
Q You
approached this case with the same coolness and objectivity with which you
approach any of your cases, is that what you are saying?
A I tried to
do that, yes, sir.
Q You tried to
make sure that your personal feelings didn't get involved in your work in
any way, is that --
A That's
correct.
Q Did you ever
before in your career as an FBI agent investigate the alleged murder of a
friend and colleague?
A I
participated.
Q Someone you
knew?
A Yes, sir.
Q How much of
your working time during the month following June 26th did you devote to
this case?
A Sometimes
better than twelve hours a day.
Q That's more
than a hundred per cent of your ordinary working time, supposed working
time I assume. You're supposed work eight hours a day, but on your job you
usually end up working more?
A I did this
particular case.
{1231}
Q (By Mr
Taikeff) I am handing you Defendant's Exhibits 77-A, 78-A and 79-A which
are not in evidence, and marked for identification, so they would be
withheld from the jury's view, and ask if you have ever seen those before?
A These
particular copies?
Q Or anything
that was essentially identical to it or them.
A I have seen
-- this is a copy, it appears 77-A, I have seen that; 78-A looks familiar,
and 79-A looks familiar too.
Q Did those
prepare those or something just like it?
A I prepared
78-A. It appears to be a copy with my initial on it, and the other two.
Q Did you
prepare any name lists in association with those documents?
A I was
assisted, yes, sir.
Q Do you know
the identity of the people who are depicted in these photographs?
A You mean if
you were to show them to me right now?
Q Yes.
A Possibly
some.
Q I am showing
you Defendant's Exhibit 78-A, the page marked Page 3; and I am pointing in
particular to the photograph in the upper right-hand corner designated
Photograph No. 3. Do you know the name of that person?
A No, sir, I
don't.
Q I show you
Defendant's Exhibit 78. Would you tell me, sir, {1232} whether that is the
companion name list?
A (Examining)
Let me look here. Page 3 is, yes.
Q What is the
name of that person?
A Of the one
you say, No. 3?
Q Yes, sir, on
Page 3.
A It says
Norman Charles.
Q I realize
that it says that on Exhibit 78. I am asking you if, after examining 78,
and 78-A, you can tell us whose picture that is, not whose name appears on
the list, do you understand my question now?
A No, I don't.
Q O.K. This is
a list which purports to name the people?
A Um-hum.
Q And I
acknowledge that on that list it says a certain name?
A That's
correct.
Q I assume you
and I can both read the name. The question is, having looked at the list
and having looked back at the photograph, does that in any way confirm to
you, of your own knowledge, from some basis other than looking at this
list, the name of that person?
A I don't know
if it is Norman Charles.
Q You don't
know?
A No.
Q O.K. On June
26th, 1975, your professional activities were in {1233} one sense or
another integrated with those of other law enforcement agencies, is that
correct?
A That's
correct.
Q And amongst
them would be the Bureau of Indian Affairs police?
A Yes, sir.
Q Called the
BIA, or the BIA police?
A Yes, sir.
Q And the
South Dakota State Police, is that right?
A South Dakota
Highway Patrol, yes, sir.
Q Highway
Patrol. Did you ever receive or have occasion to review any report written
by any of those law enforcement officials?
A Yes, sir.
Q Were there
many, say, more than 15 or 20 in number, the reports?
A Well, I had
read several, yes.
Q Did you ever
read a report by a person named Eccofey?
A Which
Eccofey?
Q I need a
moment in order to give you his first name. Robert Ecoffey.
A That's
possible, sir, but I don't recall that particular statement.
Q Do you
recall whether the report of Robert Ecoffey was incorporated in a 302
verbatim with nothing more than a {1234} preamble paragraph that said "The
following" -- in essence: "The following is a copy of the report by
Officer Ecoffey of the Bureau of Indian Affairs"?
A You mean, do
I know that one exists?
Q Yes.
A A statement?
Q Yes. Are you
aware that one exists?
A Personally,
I don't personally know.
Q I show you
Defendant's --
MR. SIKMA:
(Interrupting) Your Honor, I would object to this. The witness has just
stated that he is not familiar with such a document. He had Mr. Ecoffey on
the stand and didn't ask him any questions about this. I to see the
relevancy further from the standpoint of this particular case.
MR. TAIKEFF:
First of all, your Honor, Mr. Sikma must have been sleeping if he says I
did not ask Mr. Ecoffey about this report. The record is clear that I laid
a sufficient foundation to introduce it into evidence when I am ready to
offer it.
Secondly, I
want to make sure that the witness has exhausted his memory on the
subject, and I think I am entitled to show him a document to see if his
memory is affected by that showing.
THE COURT: You
may show him the document for that {1235} purpose.
MR. TAIKEFF:
Thank you.
Q (By Mr.
Taikeff) I show you Defendant's Exhibit 87 for identification and ask,
sir, after you have a chance to look at it, whether you ever have seen
that document, a copy of it or any document which it may refer to?
A (Examining).
Q It is not in
evidence, and its contents should not be revealed at this time.
A I don't
recall ever seeing it.
Q Do I
understand that to mean you have never seen that 302?
A No. I can't
say that. What I am saying is, I don't recall ever seeing that particular
302.
Q O.k. Have
you ever seen the document which is referred to in the 302 or duplicated
in the 302?
A (Examining)
No, sir.
Q Do you know
a person by the name of Edward M. Moreland?
A I know the
name.
Q In what
context?
A Well, I
believe there was an agent there during that investigation by the name of
Moreland.
Q Special
Agent of the Federal Bureau of Investigation?
A I believe
so.
Q Working out
of the Rapid City office?
A He wasn't
working out of the Rapid City office, no.
{1236}
Q Working on
this case in South Dakota?
A Assisting,
yes, sir.
Q On a
temporary basis?
A Yes, sir.
Q I show you
Defendant's Exhibits 93 and 94 for identification. Those are also not in
evidence, should not be displayed to the jury at this time, and ask
whether what is depicted in those photographs is familiar to you in any
way?
A (Examining)
Any way?
Q Yes. I am
not ask you whether you know generically what the object is, but
specifically is it familiar to you?
A Yes, it is.
Q In what
connection are you familiar with the object?
A You want me
to answer that?
Q Please.
A I saw this
particular object, oh, sometime after the shooting I mean, days after,
maybe even weeks.
Q Where?
A I believe it
was in Pine Ridge. I can't say for certain (examining).
Q Would you be
kind enough to direct your attention to Government Exhibit 71 behind you,
and I ask specifically whether you know what these little black rectangles
represent at or near the point where there is a letter "P" and a "P-1" on
Government Exhibit 71?
{1237}
A (Examining)
Basically they appear to me to be automobiles.
Q Do you have
any knowledge from your presence at the scene whether in fact they are
automobiles, or were automobiles there?
A I recall
seeing automobiles the next day.
Q That is to
say, on the 27th of June?
A Yes.
Q Do you
recall how many?
A I just
recall that there were some.
MR. TAIKEFF:
Do you have those photos, Mr. Hanson?
Q (By Mr.
Taikeff) I am bringing to you, sir, Government Exhibit 56 which is in
evidence, and ask whether you would be kind enough to look through the
album. I think there are three or four pages of photographs in there, and
then I will put a question to you.
A (Examining).
Q I would like
the record to reflect the fact that as you looked through that album, you
looked over your shoulder at Government Exhibit 71, am I correct about
that?
A Yes, sir.
Q O.k. Now, do
you recognize in the photograph or any of the photographs the area which I
referred to before around these automobile emblems?
A Yes, sir.
Q And in
looking at those photographs, do you have -- or after looking at the
photographs do you have any recollection {1238} concerning what vehicles
you saw there the following day on June 27th at that spot?
A Well, I saw
vehicles, but I can't tell you what the vehicles were in my own mind.
Q O.k. Now, I
ask you to look at Defendant's Exhibits 93 and 94 for identification, and
ask whether what you see in those photographs was present amongst those
vehicles?
A These here
(indicating)? No, sir. (Examining) unh-unh, not that I can see, not that
particular object (indicating).
Q All right.
When you say "that particular object," you are referring to the object
depicted in the two photographs, 93 and 94 for identification?
A These two
particular -- 94 and 93, not that I can see are in this photograph.
Q O.k. Where
in Pine Ridge did you see the object which is depicted in 93 and 94 for
identification?
A These two
particular, 94 and 93, not that I can see -- are in this photograph.
Q O.k. Where
in Pine Ridge did you see the object which is depicted in 93 and 94 for
identification?
A That would
have been at the building in the utilities yard.
Q Of what?
A Well, in the
Bureau of Indian Affairs' buildings.
Q As far as
you know, was that object the property of the {1239} Bureau of Indian
Affairs?
A Not to my
knowledge, it wasn't.
Q As far as
you know, was it there as evidence in connection with some official
activity of the Bureau of Indian Affairs?
A I later
learned that it was, yes.
Q And from
whom did you learn that?
A Well, the
conferences, the general passing of information, that the vehicle was over
in the B and U Building.
Q At the time
that you just referred to, what was your understanding as to the role of
that vehicle?
A Well, as I
understood it, that that -- I can't say, not specifically that vehicle,
but all the vehicles that we got out of there were somehow connected with
the people involved in the shooting.
Q All right. I
am bringing to you, sir, Government Exhibit 55 which is in evidence, and I
ask you to look at Page 11, Photograph C, photograph of a vehicle, Page
12, Photograph B, that's the same vehicle as the one I just pointed out to
you, isn't that correct, sir?
A It appears
so.
Q And then
there is Page 23. That appears to be the same vehicle as the two you just
looked at?
A Yes.
Q How about
that vehicle, did you see that vehicle in that location at the BIA
Building at or about that time?
{1240}
A I don't
recall.
Q I now show
you Page 31 which has a single photograph, and Page 33 which has a single
photograph, and Page 34 which has a single photograph. First, I ask you
whether or agree that the same vehicle appears to be depicted in those
three photographs?
A It appears.
MR. TAIKEFF:
All right. If I may, your Honor, I just want to hold those photographs up
to the jury so they can follow the questioning.
(Counsel
displays exhibit to the jury.)
{1241}
Q Going back
to page 31, sir, that's a red and white Chevrolet, is it not?
A It's white
over red Chevrolet panel; yes.
Q When you say
"panel," you mean a panel truck?
A That's
correct.
Q Would you
agree that the word "van" might describe that type of a vehicle?
A No, I
wouldn't.
Q You'd call
it a panel truck?
A Yes.
Q Would you
call it a pickup? Yes or no?
A No.
Q Did you see
that panel truck at the BIA building?
A Eventually.
Q If I tell
you that we thus far in this case have referred to that vehicle as a van,
would you permit me on that basis to call it a van without objection from
you so the jury is not confused about what vehicle we're talking about?
Just for purposes of this trial. I understand you call it a panel truck.
A That's
correct.
Q But I may
refer to it as a van without objection from you? A (Witness indicates.)
Q I just
wanted to get some ground rules with you. That's all. Now when that van
was at the BIA building, were there {1242} any vehicles near it?
A Yes, there
were.
Q Can you
describe those vehicles?
A I do recall
seeing this particular panel truck but --
Q Can we call
it a van, please. I understand the problem we're having but I want to make
sure we use a consistent terminology so we don't create any unnecessary
confusion.
MR. SIKMA:
Your Honor, I'd object to that. The witness can call it whatever refreshes
his recollection.
THE COURT: The
jury has, I think it can distinguish between the two. The witness will be
permitted to call it a panel if that's what he considers it.
MR. TAIKEFF:
All right, Your Honor.
Q (By Mr.
Taikeff) Go ahead, sir. I think I interrupted your answer. I apologize.
A There were
other vehicles there but I can't specifically state what they were.
MR. TAIKEFF:
If I may have just a moment, Your Honor, please.
THE COURT: You
may.
Q (By Mr.
Taikeff) The photographs I'm about to show you are not in evidence and
should be withheld from the jury.
MR. SIKMA:
Your Honor, I wonder if we might have an opportunity to view the
photographs which are being shown. I don't know whether I've seen them or
not. Also, perhaps, to {1243} raise a possible objection if that's
necessary, but it's not possible to do that without knowing what the
witness is being shown.
MR. TAIKEFF:
Your Honor, without conceding that the government has a right to see them,
under the circumstances I'll be happy to show them to the government.
THE COURT:
Very well.
MR. SIKMA:
Your Honor, I think the reciprocal discovery ordered in the case, and I
would hope that Counsel would in that respect give us an opportunity to
see the items which he has as exhibits.
MR. TAIKEFF:
Your Honor, I would like to point out there is no misunderstanding,
reciprocal discovery refers to evidence to be offered in the defendant's
case in chief. This is cross-examination and the use of these photographs
is part of the lawyer's work product and is not required to be shown to
the government. But in spite of that fact, under the circumstances of this
particular cross-examination I have done so.
Q (By Mr.
Taikeff) First I'm going to show you Defendant's Exhibit 96 for
identification. Do you recognize the object in those photographs?
A Well, I
recognize; yes.
Q I assume you
recognize the fact that's an automobile?
A That's
correct.
{1244}
Q Do you know
which automobile?
A Well, based
on what you have showed me thus far, it appears to be the one you showed
me earlier. I can't say that unequivocally based on this particular photo
alone.
Q Okay. I am
returning to you Government's Exhibit 55 which is the album of photographs
from tent city which is in evidence and showing you page 11, photograph C
which shows a green automobile and ask whether the photograph you're
holding is of that automobile?
A Looks
similar.
Q Okay. By the
way, there came a time, did there not, when that green automobile was at
the BIA building, right?
A I believe it
was towed in but exactly where it ended up I do not know.
Q And the
towing in was in connection with the official investigation that was going
on with reference to this case, right?
A Yes, sir.
Q Now, sir, I
show you No. 97 for identification and ask you whether in fact that
depicts that green automobile which you see in Government's Exhibit 55?
A I can say
this much: that it, this particular Exhibit 97 bears the same license
plate as in your album here identified {1245} as Government's Exhibit 55.
Q How about
the make of the vehicle?
A Same.
Q How about
the color of the vehicle?
A Well,
depends on the light here.
Q How about
the number and position of the windshield wipers?
A I don't
think that's -- well, it appears to be the same.
Q How about
the grill work?
A You can't
tell. One's the forward and one's the rear.
Q I show you
Defendant's Exhibit 103 for identification and ask you whether you are
able now to say whether or not that's somewhat similar vehicle that was at
the BIA place -- withdrawn. Whether you can say that the somewhat similar
vehicle in the photographs I have been showing you which are not in
evidence are of the vehicle which was at the BIA place?
A Well, it
appears that the vehicle in Exhibit 103 and Government Exhibit 55 appear
to be the same vehicle.
Q I see. Would
you say that the vehicle in Defendant's Exhibit 98 for identification is
also that same green Ford, and specifically whether it is at the BIA
building?
A Well, I can
say it appears to be the same vehicle but I can't say specifically if
that's the BIA building.
Q Do you
notice that there are people in the photograph?
A Yes, I do.
{1246}
Q Do you
recognize any of them?
A Yes, sir.
Q Who are
they?
A Dean Hughs,
Jack Schwartz and Joe Goss.
Q And other
than Hughs whom you already told us about, who are the other two
gentlemen?
A Well, Joe
Goss is a special agent for the FBI.
Q Yes, And the
other gentlemen?
A Jack
Schwartz?
Q Yes, sir.
A Well, I
understood him to be an attorney.
MR. TAIKEFF:
At this time, Your Honor, I offer into evidence Defendant's Exhibits 96,
97, 98 and 103.
MR. SIKMA:
Your Honor, I object on the grounds of relevancy. No relevancy here has
been shown in any respect. Might I ask one question, Your Honor, for the
purpose of posing a further objection?
THE COURT: You
may.
MR. TAIKEFF:
No objection to that, Your Honor.
THE COURT: You
may.
MR. SIKMA: Can
you tell me whether you and other agents involved in this case pursued
many leads which turned no evidence at all in the case?
THE WITNESS:
Yes, sir.
MR. TAIKEFF: I
object to that question and move to {1247} strike it at this time because
it has nothing to do with the voir dire on the offer of proof. It's a
cross-examination question which goes to the weight of the evidence which
has been offered .
MR. SIKMA: I
think it goes directly to the weight, Your Honor.
MR. TAIKEFF:
Well, then, if Your Honor does not sustain my objection, I would like to
ask a counterpoint question.
MR. SIKMA: I
have one further question in addition to this one, Your Honor, if you do
not sustain the objection to the question.
THE COURT: You
have one additional question you want to ask of this witness?
MR. SIKMA:
Yes. On voir dire, Your Honor.
THE COURT:
Before I rule on the other objection you may ask the additional question.
MR, SIKMA: Mr.
Coward, did this turning up leads include the examining of a number of
junked vehicles?
THE WITNESS:
Yes, it did.
MR. TAIKEFF:
I'd like to ask one question which I think will resolve the matter.
Q (By Mr.
Taikeff) Did the vehicles in question to which Mr. Sikma made reference
come from the area known as the Jumping {1248} Bull area? Yes or no?
A What junked
vehicles?
Q Any vehicles
that you had there in the BIA lot. Did it come off these premises which
are depicted in Government Exhibit 71? Yes or no?
A I don't
understand your question. If you would, in relationship to his question is
where I'm confused.
Q All right.
Mr. Sikma asked you whether you were exploring every possible lead.
A That's
correct.
Q In the
course of your investigation.
A That's
correct.
Q And did that
include exploring leads relating to vehicles which were found on the
premises which is depicted in Government's Exhibit 71? Yes or no?
A Yes, sir.
Q And amongst
the several vehicles that you may have investigated, do the photographs
which I just offered in evidence depict one of the vehicles which you
pursued in that manner?
A Yes, sir.
MR. TAIKEFF:
Your Honor, I renew my offer.
MR. SIKMA:
Your Honor, I would again interpose an objection that there is still no
showing of relevancy whatsoever.
THE COURT:
Counsel approach the bench.
{1249}
(Whereupon,
the following proceedings were had at the bench:)
THE COURT: Not
having seen the pictures, I would like --
MR. TAIKEFF:
They are of the Ford, Your Honor, which was found in tent city at the BIA
building.
THE COURT: And
then the same photo, or apparently the pictures of this same auto appear
at Exhibit 55?
MR. TAIKEFF:
That's correct.
MR. SIKMA:
Yes. This is the green car that was found in tent city. I think that in
the background here he's referring to Photograph 98 is the other car which
I can state for the record at this time, I believe, from his questioning
of it, one of the cars which we referred to as a junked vehicle.
MR. TAIKEFF:
And in addition, in the background of 97 is the red van. So that ties them
altogether at that location and it is a critical piece of evidence for the
defense that they were all there. I make that as a representation to the
Court. It will be developed in great detail in the course of this trial.
MR. SIKMA:
Your Honor, I say that the vehicle that was found or that red vehicle that
was towed in was examined. However, I would also state that particular
vehicle before it was towed in was necessary by way of offer of proof to
{1250} put a battery in it before they could start it.
MR. TAIKEFF: I
don't deny that that's the fact. It's what role is played at a certain
point. This is significant. I will not make a contention at any time in
the course of this trial that that vehicle was actually used. You need not
fear that. I will be bound by that in connection with the proof I offer.
MR. SIKMA:
Then I fail to see the relevance.
MR. TAIKEFF: I
don't have to explain my entire theory to the government to get in a
photograph of this vehicle that is already in evidence in another
photograph.
THE COURT:
Well, actually are seeking to put these photos in evidence to show the
proximity of other vehicles, I presume, is that it?
MR. TAIKEFF:
I'm seeking to show that that vehicle was taken in and I will eventually
use that as a springboard to show that certain other vehicles were taken
in which is a process of accretion by which I will prove my case, although
there is no burden upon us to prove anything. And the question of
relevance, I think, is obvious .
MR. SIKMA:
Your Honor, this is really a waste of time as far as this witness is
concerned because he really can't say with any certainty as to where it is
and --
{1251}
MR. TAIKEFF:
He has said where it is. He said it's in the BIA lot.
MR. SIKMA: He
said he believes he saw it.
MR. TAIKEFF:
That goes to the weight of the evidence, not its admissibility.
MR. SIKMA:
Certainly not shown to be relevant at this time, Your Honor.
THE COURT: I'm
going to admit the exhibits.
MR. TAIKEFF:
Thank you, Your Honor.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT:
Exhibit 96, 97, 98 and 103 are received.
Q (By Mr.
Taikeff) I'm placing those exhibits before you, sir, placing closest to
you Exhibit 97 and then next closest to you Exhibit 98 in evidence. Do you
see another vehicle in 97?
A Yes, sir.
Q What vehicle
is that?
A Well, it's a
red vehicle.
Q It's a red
vehicle or is it a particular red vehicle?
A It appears
to be a particular red vehicle.
Q And to be
specific, what particular red vehicle is it?
A It's not --
Q I beg your
pardon?
A Which
photograph are you referring to?
{1252}
Q 97 I said
was put closest to you and I asked you to look at that first.
A Okay.
Q Sir?
A It appears
--
Q Yes, sir.
A -- that they
are the same.
Q In other
words, it appears that the vehicle which is in the background behind the
green Ford is the vehicle I have referred to as the Chevrolet van which is
on page 31 of Government Exhibit 55, is that correct?
A That's in
reference to Defendant's Exhibit 97 only?
Q That's
correct, sir.
A It appears
to be.
Q Now I ask
you to look at Defendant's Exhibit 98 tn evidence along with the
Defendant's Exhibit 93 and 94 for identification. Now with respect to the
picture which is in evidence, you see the green Ford?
A Yes, sir.
Q Yes or no,
do you see another vehicle in the background?
A Yes, I do.
Q Can you
identify the vehicle that is in the background and if you can, if it is
possible for you to do so in terms of 93 and 94 for identification, first
tell us whether you can make any identification.
{1253}
A Well, I can
make an identification to certain references in this particular
photograph.
Q Whatever the
basis of your opinion, I ask you to offer us your opinion, not how you did
it.
A Well,
Defendant's Exhibit 98 has a broken windshield in it.
Q No, sir,
don't tell us the details. Just tell us the answer if you have one.
A Well, to me
they appear to -- the one in 93 appears to be identical to 98, but I can't
say positively.
Q Show you
Defendant's Exhibit 95 for identification, not evidence. Can you tell us
the location at which that photograph was taken? Yes or no.
A Yes, I can.
Q What is the
location?
A It's the
police BIA parking lot. It's a secured evidence parking lot to the west I
believe of the police station.
Q That's the
same place where Defendant's Exhibit 98 shows, isn't it?
A See, this
confuses me. I don't know where that background is.
Q Well, look
now at Defendant's Exhibit 95 and tell me if you see a vehicle in the
background of that.
A Yes, I do.
Q And do you
recognize that vehicle?
{1254}
A It's a green
vehicle.
Q Well, is it
that green Ford which was in tent city?
A It appears
to be, yes.
Q Well, isn't
it a fact, sir, that the vehicle which is depicted in the background of
Defendant's Exhibit 98, the one in Defendant's Exhibit 95 for
identification, 93 for identification and 94 for identification, are all
the same vehicle?
MR. SIKMA:
Your Honor, this question has been asked and answered a number of times.
Furthermore counsel is becoming argumentative with the witness. He said it
appeared to be, and I think that's his answer.
THE COURT: I
will allow the witness to answer.
A Well, it
appears that Defendant's Exhibit 93, 95, 98, the red vehicle appear to be
the same vehicle. But as far as saying what 94 goes to, I can't say hat.
Q (By Mr.
Taikeff) All right.
THE COURT: I
didn't hear the last answer.
THE WITNESS:
As far as, Your Honor, as far as Defendant's Exhibit 94, I can't
specifically say how this fits into these three particular photographs.
There's not enough there for me to make an identification.
MR. TAIKEFF:
All right. Your Honor, I make no offer with respect to Defendant's Exhibit
94. But I now offer into evidence Defendant's Exhibit 93 and 95, and I'm
showing them {1255} to Government counsel.
MR. SIKMA: No
objection, Your Honor.
THE COURT:
Exhibits 93 and 95 are received.
Q (By Mr.
Taikeff) I show you 95 and I ask you whether you would describe that
vehicle as a red pickup? Yes or no.
A A pickup?
Q A red
pickup.
A Well, the
first thing that comes --
Q Just tell me
yes or no.
MR. SIKMA:
Your Honor --
MR. TAIKEFF:
It is a simple question, Your Honor.
THE COURT:
Just a moment. Are you able to answer it yes or no?
THE WITNESS:
No, sir, I'm not.
THE COURT: All
right.
MR. TAIKEFF:
Now, Your Honor, I'd like to note that Mr. Sikma just said he can't answer
the question yes or no. I am impressed with Mr. Sikma's ability to read
the witness's mind.
MR. SIKMA:
Your Honor, I would object to counsel's statements and move that it be
stricken from the record. Counsel knows full well that I have an
obligation to object to improper questions and to the improper examination
of a witness.
MR. TAIKEFF:
Your Honor, the proper way to state an {1256} objection is to say I object
and state the legal grounds; and the legal ground, there was incompetence,
not to state that he can't answer the question and tell him what the
answer should be.
MR. HULTMAN:
Your Honor, might we approach the bench?
MR. TAIKEFF:
The federal rules of evidence provide for that.
THE COURT:
Just a moment. The witness has stated that he cannot answer the question
yes or no. You may answer the question, or you may, you may restate your
question and the witness may answer it in his own way.
Q (By Mr.
Taikoff) Remember the question?
A You asked me
if it was a pickup.
Q I asked you
if it was a red pickup.
A Okay.
Q Didn't I?
A Okay. Red
pickup.
Q Okay.
A The first
thing that comes across my mind is not being a pickup.
Q Why not?
A It's not,
it's not a pickup.
Q What is it?
A It, it's
some other type of vehicle. I believe it's an International Harvester.
{1257}
Q Yes. That's
the manufacturer's name. Take a look at 93 in evidence. Is that the same
vehicle?
A Appears to
be.
Q Now, look at
that and tell me whether it's a red pickup or not.
A That's my
same answer, my initial reaction to these photographs is this vehicle
being a pickup, it's not a pickup.
Q All right.
What do you understand the word pickup to mean when we refer to a vehicle?
A Well, a
pickup to me is a two wheel drive. You use the -- it's a half ton,
three-quarter ton. Use it to haul wood, gravel. Use it to work around the
farm. Doesn't have a detachable top, you know, it's all one body. I don't
believe hat meets that criteria. Q Isn't a pickup a vehicle that has a cab
and a carrying compartment in the back which is open?
A Well, I
think that could probably be true. But you asked if I thought it was a
pickup, and to me my reaction to those ,..utographs is it's not a pickup.
MR. TAIKEFF:
Your Honor, I just want to make sure I do not make any error. Is 95 in
evidence? May I ask the Clerk?
THE CLERK:
Yes.
Q (By Mr.
Taikeff) I show you Defendant's Exhibit 95 and ask {1258} you first, is
that the same vehicle we've been talking about for the last few minutes?
A Yes. I've
seen this particular exhibit, yes, sir.
Q And you say
that that is not a pickup in your opinion; is that correct?
A Now, you are
asking me in my opinion is it a pickup?
Q Well,
looking at that vehicle, if you were broadcasting a transmission as a law
enforcement officer or someone said to you red pickup, and you saw that
vehicle, would you think that maybe that was what the person was talking
about?
A Well, to
answer that question, that would be true, yes.
Q All right.
MR. TAIKEFF:
Now, Your Honor, may I have that picture circulated amongst the jurors?
THE COURT: You
may.
MR. TAIKEFF:
Thank you.
MR. HULTMAN:
Your Honor, could we approach the bench while the jury is looking at the
photos at this time?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:
MR. HULTMAN:
Your Honor, the reason for approaching the bench is that we are constantly
being placed in a situation where counsel is demanding a yes or no answer.
And all of us know that there are many, many responses by witnesses many
{1259} times where it cannot be a yes or no answer. And when that witness
has indicated such hesitation, the Government has every right in the world
to make that objection. We have and we will, and I want it made the
opportunity in the future without any remarks being made in the presence
as to whether or not the Government is conducting misconduct at that time
or that they don't have such a right. That's the point to which I'm
objecting at this time and I want the record clear.
MR. TAIKEFF:
Your Honor, first of all we have a highly experienced and well-trained FBI
agent who in addition to his experience in the field has, like all the
other agents, been trained in the proper way to conduct himself in a
courtroom. He knows full well that when a question is put to him in such a
way that the question wants him to limit himself to a yes or no, and the
question cannot be answered yes or no to say so. The witness does not need
signals from counsel. Now, the proper way to state an objection, as I
understand it under the federal rules of evidence, is to rise, say
objection and state the legal grounds. Not to make a factual argument
within the hearing of the jury and the witness. If the witness could not
answer, the legal ground would be competence. And if that has to be
elaborated upon, the appropriate place for it is at the sidebar. {1260}
And as long as the Government continues in its course of conduct, which I
interpret as an effort to throw signals at a witness, I'm going to resist
their efforts unqualifiedly.
THE COURT:
This practice of asking a witness yes or no can be a misleading practice
because a witness may not be able to answer the question yes or no, but
may feel compelled under the circumstances in the atmosphere of the
courtroom to answer the question yes or no. I have been inclined many
times, and I have refrained from doing so, to interpose a suggestion to
the witness, if you are able to do so.
MR. TAIKEFF: I
would be happy at the beginning of each cross-examination to advise the
witness of that fact so there's no misunderstanding between me and the
witness. But I do not want anything that even may appear to be a signal
from adverse to a witness under cross-examination.
MR. HULTMAN:
Well, Your Honor, if counsel is indicating by the mere fact that we don't
have a right to make an objection, and that in and of itself then becomes
a signal, I resist this whole --
MR. TAIKEFF:
That's not my point.
MR. HULTMAN:
We have a right to make an objection for whatever reason counsel has to
make an objection, and I want that opportunity without interposing of a
speech by counsel as to what the motive of the Government may or may not
{1261} be.
MR. TAIKEFF:
It's only when the Government makes speeches of this kind that I feel the
necessity of responding. The rule is clear-cut. One states an objection
and the legal grounds. One does not make short or long speeches in
connection with an objection, and I don't object to the Government taking
its position as often and vigorously as it deems appropriate. It is the
manner in which it is done that I find inappropriate.
MR. HULTMAN:
Well, then, Your Honor, I would put on the record that I will expect to
abide by it, and I also expect all counsel for the defendant to equally
abide by it.
MR. TAIKEFF: I
am sure that that will occur.
THE COURT:
Very well.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
MR. TAIKEFF:
Does Your Honor wish --
THE COURT: I'm
going to declare a recess as soon as the jury is finished viewing the
photos.
Court is in
recess until 11:00 o'clock.
(Recess
taken.)
{1262-1277}
INTERROGATION OF WITNESS
Pages
1262-1277
{1278}
MR. TAIKEFF:
Sorry about the delay, Your Honor.
THE COURT:
Very well. Jury may be brought in.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:
THE COURT: You
may proceed.
MR. TAIKEFF:
Thank you, Your Honor.
Q (By Mr.
Taikeff) On how many separate occasions have you been to the Jumping Bull
area? Do you know what I mean by the Jumping Bull area?
A Jumping Bull
community?
Q Or the
Jumping Bull community, yes.
A I've never
been there before with the exception of that day.
Q Just once?
A That's
correct.
Q I show you
Exhibit 93 in evidence which depicts that red vehicle we've had some
testimony about. And that's not the red and white panel truck, is it?
A No, sir,
it's not.
Q Can you tell
from looking at that photograph where that vehicle is standing in that
photograph?
A No, I can't.
Q More
specifically is that photograph not taken in the area of the Jumping Bull
community?
{1279}
A You're
speaking to me if it is?
Q If, from
looking at it, you could say whether it is.
A I can't.
MR. TAIKEFF:
All right. Your Honor, I believe the Government has offered a stipulation.
MR. SIKMA:
Your Honor, I believe that we'll stipulate that it is in the area by what
we have referred to as the junked cars I believe in other testimony.
MR. TAIKEFF: I
think that's the area marked with the letter "P".
MR. SIKMA:
Yes, Your Honor.
THE COURT: The
stipulation --
MR. SIKMA: To
the right.
THE COURT: --
is received.
Q (By Mr.
Taikeff) Now, sir, on June 26, 1975 you had occasion to work with a team
of law enforcement officers, some of whom were from the FBI and some of
whom were from the BIA; is that correct?
A Yes, sir.
Q Could you
tell us the names of some of the BIA people you Were with.
A Marvin
Stoldt, Ely Conroy.
Q Could I have
that second name again, please.
A Ely Conroy.
Terry Weston and an Officer Pacer I believe.
{1280}
Q Now,
beginning at what time did you come into contact with those people from
the BIA? What time of day?
A At
approximately 1:20 P.M.
Q And for how
long did you remain in a position where you were working with them or
coordinated with them, that specific group?
A Oh, until
approximately 5:30 P.M.
Q Did you
confine your activities to a certain area, relatively small area compared
to that Chart 71 in evidence, or did you find yourself in numerous places
that afternoon?
A I wouldn't
define it as numerous.
Q How many?
A Two
different other -- three different other locations than where I arrived
initially.
Q Now, I would
like to perhaps repeat some information concerning a highway known as
Highway 35. Such a highway is in the area; is that correct?
A Yes, sir.
Q And if this
Chart 71 in evidence were to be expanded to include Highway 35 it would
have to be extended downward from the lower edge, is that correct thus
far?
A Yes, sir.
Q And it would
have to be expanded to the right?
A Yes, sir.
Q And possibly
the right-hand half of the upper edge might have {1281} to be extended
upward?
A Yes, sir.
Q Now, if that
were done a sufficient distance, I gather that, and if it were drawn
accurately, we would find somewhere over here (indicating) off the lower
left-hand corner of 71 an intersection between Highway 35 and Highway 18;
is that correct?
A That's
correct.
Q And then
that road in some manner of arc or curve would continue along below what
is now the lower edge of the chart, coming up on the right-hand side and
eventually would intersect Highway 18 again?
A Yes, sir.
Q How far down
do we have to come in actual distance, not in inches of chart, before we
would see Highway 35, let's say, directly below this wooded area which is
the center bottom of the existing chart? And I'll help you with that by
telling you that the distance between the white house and the bottom of
the chart seems to be about a thousand feet.
A Oh, maybe a
thousand yards.
Q About three
thousand feet?
A No, one
thousand yards.
Q I said about
three thousand feet.
A Yeah, okay.
Three thousand feet.
Q You were at
one time somewhat closer to those residences {1282} than a thousand yards
away, correct?
A Yes, sir.
Q And it is
fair to say that you were fairly close, though, but not at Highway 35,
almost due west of the residences?
A (No
response.)
Q Which is the
lower part of the chart.
A Yes.
Q I say that
only for the record, not because I don't think you understand.
A Yes, yes,
sir.
Q Is it
accurate to say that you were approximately a half mile on a straight line
from the residences when you were in that vicinity near Highway 35?
A
Approximately a half a mile.
Q Yes, that's
my question. A fair statement?
A Roughly.
Q Now, I think
our point of departure a moment ago was your saying that you believe you
were in three different areas in the course of that afternoon?
A Yes, sir.
Q I've already
questioned you about one of them?
A Yes, sir.
Q Could you,
using the pointer if you prefer, or by describing t, tell us the other two
areas in which you were located that afternoon.
{1283}
A I'll use the
pointer. From the position due west of these residences known to me as the
Jumping Bull residence, the first time I was almost due north. I left
there probably, oh, maybe five hundred yards from that location due north.
Q And how long
did you remain at what I will refer to as the second location?
A Twenty
minutes possibly.
Q And what
time of day was that, sir?
A That was
shortly after 4:30.
Q And how
about the third location?
A Well, I
would have been down here (indicating).
Q You are
pointing to a place off the chart?
A Off the
chart.
Q Which is
south of tent city at the same latitude as tent city approximately. And
how far south of the center of tent city were you approximately, just for
the record primarily?
A I didn't
know where tent city was at that particular time.
Q Well, now
that you know it, could you give us an estimate?
A Well, I
can't because I don't know the relationship between tent city and the
Rooks residence.
Q Could you
put it in terms of Highway 35, does that help you in any way?
A Yes. That's
where I was.
Q You were at
35?
{1284}
A Yeah. I went
south on 35.
Q I see. So
you were sufficiently far out of what we now know to be tent city, so as
to be in the vicinity of Highway 35?
A That's
correct.
Q Okay. Would
you be kind enough to resume your seat. What was that time of day?
A That was
shortly after 5:30 P.M.
Q So most of
the day you spent at the location I questioned you about approximately a
half a mile west of the group of residences?
A Yes, sir.
Q Now, other
than what you may have seen in the immediate vicinity of the residences,
did you see any people who were, as far as you understood the facts to be,
not law enforcement people in the area that day?
A Yes, I did.
Q In the
woods?
A In the
woods?
Q Yes. Did you
see those people in the woods?
A Yes, sir.
Q On how many
separate occasions did you see people in the woods in the course of the
afternoon? And let me tell you, so there's no confusion in anybody's mind,
I'm trying to discover from you some information about how many people
there were around there and where they were and at what time of day.
That's {1285} the purpose of asking you these questions.
A The woods
meaning, not the -- or the area confining, or around this Jumping Bull --
Q I'm trying
to exclude the area which is essentially at the center of Exhibit 71, and
I'm trying to deal with people who may have been on the various slopes or
in the woods or in the ravine or along the stream who were not known or
believed by you to be law enforcement personnel.
A Well, at
each location I went to and during the day I saw several people.
Q And what
were they doing?
A Well, I
could see people across the highway on top of a butte standing.
Q With guns?
A I couldn't
tell if they had guns.
Q You couldn't
say that they didn't have guns?
A That's
correct.
Q Is that
equally true?
A That's
equally true.
Q All right.
A I saw people
down by the -- I saw people behind me.
Q Excuse me.
For the benefit of the record I think your first description was
accompanied by pointing in the upper left-hand corner of Exhibit 71?
A That's
correct.
{1286}
Q All right.
Would you continue, please.
A Then shortly
after in the afternoon when I left the first time from my present location
I viewed two people up on top of a hill.
Q Can you give
us some idea of where that hill was?
A Well, if you
took my position west, you would go directly across the road. And west of
me up the hill there's a rise.
Q West of you,
which would be further down on this chart?
A That's
correct.
Q If it were
extended it would have to be extended further west?
A Yes, sir.
Q We would
have to extend it to show Highway 35?
A Yes, sir.
Q And you saw
two people there?
A Yes, sir.
Q What were
they doing?
A Well, they
were shooting.
{1287}
Q With rifles?
A With
weapons.
Q Go on, tell
us any other sightings that you made?
A And then
after the response at 5:30, after 5:30 when I went down to the other
location on Highway 35, and I saw approximately 10 individuals.
Q Moving
south?
A Well, I
would call it west.
Q Going this
way (indicating), to the right on the chart?
A I went
south, and if I was going south, they were off to my right-hand side,
moving up the hill west, in a westerly direction, we will call it.
Q So in terms
of the chart, you were moving off the right, towards the right, and these
people were moving towards the bottom of the chart?
A This way
(indicating), would be over here to my right (indicating).
Q Well, were
they traveling a line which would -- if it were extended -- go down toward
the bottom of the chart?
A No. You have
to go up. Where I saw them, it was down by the culvert, by the Rooks'
place, when I saw them. Of course, I was going on Highway 35, and they
were going up the hill to the right, on an incline up the hill, so I would
call it in a westerly direction.
Q I see. Which
way on the chart do you believe west is {1288} depicted?
A That's north
(indicating), that's south (indicating), and that's east (indicating), and
that's west (indicating).
Q So west is
toward the bottom of the chart?
A To me south
is here (indicating), east and west -- I can see it now. O.k., the road
goes that way (indicating). Well, from where I was on the road they were
running in a westerly direction
Q Direction --
o.k. Did you see any other non-law enforcement people in the course of
that afternoon, say, between 1:30 and 5:30 or 6:00?
A Yes, sir.
Q Could you
tell us whether or not on two separate occasions that afternoon you either
personally spotted two Indian men or were told by the group, or member of
the group you were working with, that two Indian men had been spotted on
two separate times that afternoon?
A Yes, sir.
Q Do yon have
any reason to believe that they were the same two people both times?
A I have
reason to believe that.
Q What is the
basis of that belief?
A Well,
earlier, before I arrived at this initial place, initial spot, two of the
Bureau of Indian Affairs policemen that were in the car, in the group that
we were with, advised {1289} Marvin Stoldt that they had just seen two
individuals running up the hill about 200 yards off the roadway, down
along a ravine.
Q Where were
they as far as you could tell from the description in terms of the chart?
A Well, again
it would have been west of the road.
Q Further down
on the chart if it were extended?
A Further
down, yes.
Q And that was
about 2:00 o'clock in the afternoon?
A Roughly,
yes, sir.
Q And then
again two men were spotted at what time?
A Well, after
4:30.
Q Where were
those two men spotted?
A Well, I
never spotted them.
Q But you
received information?
A Yes.
Q From your
colleagues?
A Yes, sir.
Q Where do you
believe they were spotted?
A Well, I
understood them to be down in the creek area, which would be along this
wooded area (indicating).
{1290}
Q Could you
point with the pointer so I could state it for the record, please?
A Well, there
is a creek that goes along this wooded area (indicating).
Q Yes.
A And it leads
up into the dam.
Q Which is off
the lower left-hand corner of the chart?
A Right.
Q Roughly
where, along -- I am not asking for an exact location.
A It would
have been north of my location.
Q North of
your location?
A Right.
Q That would
put it both below the lower edge of the chart and left of center of the
center line of the chart, is that correct?
A It would put
it in this area somewhere (indicating), that's what I was informed.
Q All right.
You have just pointed to the wooded area which is in the lower left of the
chart, about a foot and a half to two feet from the lower left-hand
corner. Were those people carrying guns?
A I didn't see
them, sir.
Q Was it
reported that they were carrying guns?
A I did not
hear that.
Q Now, you
wrote one or more reports which you refer to in the FBI as 302's, right?
A Yes, sir.
Q Did you take
notes in the course of the afternoon?
{1291}
A Me
personally?
Q Yes, sir.
A No, sir.
Q Did you
write your report with the assistance of any notes?
A No, sir.
Q Did you
write the report based on your own recollections of what took place that
day?
A Yes, sir.
Q Did you copy
information from anybody else's 302?
A No, sir.
Q Before
writing your report, did you collaborate in any way with another FBI Agent
or law enforcement officer?
A No, sir.
Q I show you
what has been marked Defendant's Exhibit 91 for identification, and ask
you, sir, whether that is the report you wrote concerning your official
activities on the afternoon of June 26, 1975?
A (Examining)
It is a copy, yes, sir.
Q And it is
part of your official duties to complete such report or document after you
have performed your official duties?
A Yes, sir.
Q And
documents such as that are kept as a permanent record of the agency for
which you work, isn't that correct?
A Yes, sir.
{1292}
Q And in fact,
it is considered an official document of your agency, not for public
dissemination?
MR. SIKMA:
Your Honor, I would object to this as irrelevant and also calling for a
legal conclusion on the part of the witness.
MR. TAIKEFF:
Your Honor, I am trying to lay a foundation as required by the Federal
Rules of Evidence.
THE COURT:
Proceed.
MR. TAIKEFF:
Thank you.
Q (By Mr.
Taikeff) Do you recall the last question, sir?
A Would you
restate it, please?
Q Yes. I asked
whether the document was an official one which was confidential in nature
and not for public dissemination generally?
A That's
correct, sir.
Q And as far
as you know, based on your experience as an Agent of the Federal Bureau of
Investigation, it is a regular part of the routine, so to speak, of the
FBI to maintain reports of that kind in their files?
A Yes, sir.
Q And that
report is specifically such a report, that was maintained in that way
after it was prepared by you?
A Yes, sir.
Q Did you type
the report yourself?
A No, sir.
{1293}
Q Did you
dictate it to a stenographer?
A Yes, sir.
Q Did you
dictate it personally or through some dictation device?
A No, sir. I
personally -- to answer that question -- I dictated it personally.
Q Face to face
with the stenographer?
A Face to
face.
Q Who took it
down in shorthand?
A Yes, sir.
Q And again on
some later time you got the typewritten report back?
A That's
correct, sir.
Q And you
initialed it?
A I did
initial it.
Q And that is
the report?
A That's my
report.
MR. TAIKEFF: I
offer it in evidence.
MR. SIKMA:
Your Honor, may we approach the bench?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. SIKMA: On
the same grounds as stated earlier, the Government objects. This is not --
I haven't seen any showing that there is anything -- any inconsistent
{1294} statement. He has gone over it with this witness a number of times.
I think that there has to be some showing of a prior inconsistent
statement of the witness before it is admissible in evidence. He has the
witness on the stand to testify, and that cannot be substituted for his
written report.
MR. TAIKEFF:
As the Government well knows, it is only possible to put evidence in in a
linear fashion, and I cannot put in everything concerning his report at
one time. This witness can only tell us what he has just told us, and I
will connect it. If your Honor feels that I have not laid a sufficient
foundation on the testimony already, I would ask your Honor, in the
alternative, take it subject to connection.
THE COURT:
Well, I think the objection is more basic than that, and that is, that a
302 report is not admissible on the record before this Court.
MR. TAIKEFF:
He has testified that he has not collaborated with anyone in the writing
of that.
THE COURT: I
am not ruling on that basis.
MR. TAIKEFF: I
am going to show that he did collaborate at a later time.
THE COURT: I
see, excuse me
MR. SIKMA: He
is not stating that. He said he had conferences and a lot of other things,
that they discussed {1295} things with other evidence. He asked him if he
collaborated with anyone in the writing of this particular report.
MR. TAIKEFF:
That's correct.
MR. SIKMA: And
it says "Frederick Coward" here, and it indicates who he was accompanied
by and so forth, and I see no showing of inconsistency in that respect;
but in addition to that, I would object to it on the more basic reason as
to its admissibility, as ruled on earlier by the Court.
THE COURT: The
ruling of the Court is that the report is not admissible, at least at this
time, and so the offer is denied.
MR. TAIKEFF:
Thank you.
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
THE COURT: The
objection to Exhibit 91 is sustained.
Q (By Mr.
Taikeff) Returning your attention for a moment to the report which is
Exhibit 91, is it accurate to say that to the best of your ability you
recorded in that report every detail that you could recall of what you saw
and heard and did that afternoon to the extent that at the time you wrote
the report you thought it had some relevance to your official duties?
A I can answer
that, yes.
Q And in fact,
it is your understanding that when you write {1296} a 302, after you have
been in the field, so to speak, that you should report as much peripheral
detail as possible concerning anything you in your opinion think is
significant relating to your activities?
MR. SIKMA:
Your Honor, I would object for the reason that the question calls for
irrelevant information, No. 1, and No. 2, the question basically has been
asked and answered. It is repetitious.
THE COURT: It
may be. I will allow counsel to proceed to some degree.
MR. TAIKEFF: I
believe, your Honor, that was going to be my last question on the subject.
THE COURT:
Very well.
MR. TAIKEFF: I
am afraid I would have to ask the court reporter to read the question to
make sure that it is stated the second time exactly as it was stated the
first.
THE COURT: The
court reporter may read the question back.
(Question was
read by the reporter.)
A Yes.
Q (By Mr.
Taikeff) Is it not a fact that late that afternoon, perhaps 5:30 or later,
you received notification via the FBI radio that there was firing going on
in a certain area?
{1297}
A Yes, sir, I
did.
Q And do you
remember the name of the person who communicated that over the FBI radio?
A Yes, I do.
Q What is the
name of that person?
A J. Gary
Adams.
Q Now, you
said before that you made some other sightings, is that correct?
A Yes, sir.
Q And I gather
that you meant by that, at a place or in places other than the three
places we have discussed in detail?
A Yes, sir.
Q Do you
remember what day of the week June 30th, 1975, was?
A June 30th?
Q Yes.
A Let's see.
The 26th was a Thursday, as I recall.
Q I believe
that's correct.
A Friday,
Saturday, Sunday -- I believe it was a Monday.
Q As far as
you know, did you work that day?
A I worked
every day.
Q Do you
normally work every day?
A No, sir.
Q But at that
time you were working every day?
A Yes, sir.
{1298}
Q And for how
long after June 26th, 1975, did you continue to work every day without
taking a day off?
A Two months.
Q Did you meet
with your fellow agents who were working on this case on June 30th?
A I met them
every day, sir.
Q Was there
anything different about that day in connection with your morning or
evening discussions with your colleagues?
A On that
particular day?
Q Yes.
A Not that I
recall.
Q I put it to
you, sir, and you tell me whether this is correct or incorrect: That on
June 30th, 1975, you and one or more of your fellow agents sat down and
decided from the evidence you had gathered up to that point what had
happened that day, and to a considerable extent wrote reports which
reflected not what you had seen and heard but what you believed had taken
place, what you believed as of that time had taken place, true or false?
{1299}
A False.
Q I put it to
you, sir, and you tell us whether I am right or wrong: That you wrote
certain portions of your report purely on the basis of fiction, motivated
by what you then believed occurred on June 26th, 1975, is that true or is
that false?
MR. SIKMA:
Your Honor, I would object. This question has been asked and answered No.
1; No. 2, it is misleading; No. 3, it is argumentative as far as this
witness.
THE COURT:
Sustained.
Q (By Mr.
Taikeff) Did you not write in your report something about seeing Leonard
Peltier that day?
A That's
correct.
Q And isn't it
a fact that it is false, that you did not see Leonard Peltier that day?
A That's
incorrect, sir.
Q Which way
were you looking when you saw Leonard Peltier that day?
A Well, I was
looking in a northeasterly direction.
Q Generally
speaking in the direction of the residences?
A You mean
when I saw him specifically?
Q When you
claim you saw him, yes.
A Well, when I
saw him specifically I was looking east.
Q And you were
in the position off the chart, west of the houses, about a half mile away?
A Well, I was
approximately 700 yards when I made the viewing of Leonard Peltier.
Q Isn't it a
fact, sir, that you were a half mile away?
A From --
Q
(Interrupting) When you were at the place from which you say you saw him.
{1300}
A Well, if you
take the place where I was and measure the distance to the houses, it is
approximately 800 yards which is less than a half a mile. If you take
where I was and where I made the observation, it would be approximately
700 yards.
{1301}
Q I show you
Defendant's Exhibit 92 for identification and ask you, yes or no, if you
are able to answer yes or no, do you recognize that?
A Yes, sir, I
do.
Q Is it an
affidavit?
A Yes, sir.
Q And did you
sign that affidavit?
A Yes, sir.
Q And did you
swear to the truth on its contents?
A Yes, sir.
Q And does it
have certain attachments to it which you referred to in the text of your
affidavit?
A Yes, sir.
Q And when you
signed that affidavit and swore to it, did you understand that you were
incorporating the attachments by reference and thereby swearing to the
accuracy of the attachments and the statements you made about them?
A Yes, sir.
Q Was there a
map attached?
A Yes, sir.
Q Made perhaps
from an aerial photograph?
A There was a
map attached, however it was made I don't know.
Q And on that
map did you indicate the place where you say you saw Leonard Peltier?
{1302}
A May I see
the affidavit, please?
Q Well, can
you tell me from memory, first?
A I think the
general area is probably indicated but I'm not specifically sure.
Q Do you
recall whether you marked on that map and said in your affidavit that you
had marked on that map the place where you were and the place where
Leonard Peltier was allegedly seen?
A I believe I
did but I would have to see the affidavit.
Q Now I return
to you Defendant's Exhibit 92, I'm showing you the last page. I'm also
placing before you a blue index card with a straight edge. Do you have a
pen or a pencil with you?
A No, sir, I
do not.
Q I'm also
placing before you a fountain pen. Do you see two marks on that last page?
A What do you
mean "marks"? On the map itself?
Q A mark with
A and a mark with B.
A Yes, I do.
Q And is one
of them, according to your affidavit and your present recollection, the
place where you say you were and the place where you say you saw Leonard
Peltier? Yes or no, if you can answer it yes or no.
A That would
be a yes, sir.
Q Is there a
scale on the map which tells you the equivalent {1303} of how many feet
per inch?
A Uh-huh.
Q Would you,
sir, use the blue card and the pen, if necessary, and the scale and tell
us the distance between the place where you said you were and you said you
saw Leonard Peltier. Have you determined a distance?
A Yes. 2600
feet.
Q How many
feet are in a mile, sir? Is it 5,280 feet?
A I believe
so.
Q Would you
concede that short 40 feet the distance was a half a mile?
A I would
concede that.
Q Now when you
were looking through this distance of a half mile, how many individuals do
you say you saw?
A I saw four.
Q And were
they standing still or moving?
A They were
running.
Q And in which
direction?
A Well,
southwesterly direction.
Q In a
southwesterly direction. Trace on the chart with the tip of the pointer
the approximate route they were running as you viewed it.
A Well, when I
viewed it?
{1304}
Q I'm talking
about only your own personal sighting.
A That's
right. When I viewed it it was in this area right like this (indicating).
Q Let me
describe that for the record. That's about a half an inch to the right of
the arrow that's designated "body of Joe Stuntz" on the road or path?
A Well, they
weren't on the road.
Q No. Your
pointer is on the road.
A Well, what
I'm saying is --
Q Perhaps east
of the road?
A Yes.
Q All right.
And now trace out their path for a short distance.
A Well, went
this direction (indicating).
Q Mostly in a
southerly direction?
A Right.
Q And you were
looking which way?
A Looking
east.
Q You were
looking east and they were moving south?
A (Witness
nods affirmatively.)
Q Okay. Will
you sit in that chair and assume for the moment that the back of the
courtroom is to the south -- correction -- is to the east.
{1305}
A Okay.
Q Then facing
the jury would be to the south?
A That's
correct.
Q Now when you
saw, or when you say you saw Leonard Peltier running in the direction of
the jury, was he running that way and looking that way (indicating) or was
he looking at you so you could get a good look at him?
A He was
running that way.
Q So you could
see only his profile?
A Basically;
yes.
Q And from a
half a mile away looking through the telescopic sight of a rifle, you were
able to recognize the defendant in profile while running?
A Yes, sir.
Q Have you
ever performed that feat at any other time in your life?
A No.
Q Now you were
not the only person who accomplished something like that that afternoon,
isn't that true?
A I later
found that out; yes, sir.
Q When you say
"later," when was that?
A Well, the
first time I had heard that was a couple months after my report. I was not
cognizant of it.
Q Isn't it
true that you just forgot to put it in your report?
{1306}
A No. That's
not true.
Q The identity
by name of the people other than law enforcement officers who were present
that day was exceedingly important to your investigation, a correct
proposition or an incorrect proposition?
A I lost you.
Could you restate it, please.
Q Yes. I asked
you whether the following hypothesis or proposition is correct; the
identity by name of the people other than law enforcement officers who
were at or near the Jumping Bull community on the afternoon of June 26th,
1975, was exceedingly important to your investigation, true or not true?
A True.
Q Agent Skelly
was one of those agents you worked with? Yes?
A Yes, sir.
Q Agent Waring
was one of those agents you worked with? Yes?
A Yes, sir.
Q You met with
them every morning?
A I met with
everybody that was there.
Q I
understand. But I have to be precise. You met with those two agents every
morning and every evening in the days following June 26, 1975?
A I saw them;
yes.
{1307}
MR. TAIKEFF:
May I have this marked for identification please.
Q (By Mr.
Taikeff) Between June 26th, 1975 and the end of your working day on June
30, 1975, did you and your fellow I agents talk about people who had been
identified positively as being present that afternoon at the Jumping Bull
community?
A Yes.
Q Did anyone
mention the sighting of Leonard Peltier?
A I did.
Q Were you the
only one?
A That I was
aware of; yes.
Q Did anyone
mention the sighting of Jimmy Eagle?
A Yes.
Q Who
mentioned the sighting of Jimmy Eagle?
A You mean the
agent?
Q Yes.
A Or who in
particular?
Q You don't
know?
A (Witness
nods negatively.)
Q As far as
you know, as of June 30 that sighting was common knowledge amongst all of
them?
A As far as I
knew. I was aware of it.
Q Did you not
tell us before that you were working with the BIA officer by the name of
Marvin Stoldt? Yes, sir.
{1308}
Q Did you have
any conversations with Marvin Stoldt?
A All day.
Q Did he tell
you that he claimed to have spotted Jimmy Eagle in that same group of four
people?
A Yes, sir, he
did.
Q That was an
important fact, wasn't it?
A Yes.
Q Is it in
your 302?
A Is it in my
302?
Q Yes.
A It's in one
of them; yes.
Q I return to
you Defendant's Exhibit 91 and perhaps you can assist me with the possible
oversight. Can you tell me the page and paragraph?
A It's not in
this particular 302.
Q Oh, I'm
sorry, sir. Did I fail to hand you your report of the activities of June
26, 1975?
A These are
mine. These are my observations, no one else's.
Q But that is
your report concerning what happened on June 6th, 1975, isn't it?
A That I
personally did; yes.
Q Only what
you personally did is in that report. Yes or no?
A Well --
Q Yes or no.
MR. SIKMA:
Your Honor. I'd --
{1309}
MR. TAIKEFF: I
offer it in evidence again, Your Honor.
MR. SIKMA:
Same objection as stated by the side bar.
MR. TAIKEFF:
Now, would Your Honor examine the exhibit, please.
MR. SIKMA:
Your Honor, the objection is the same for the same reasons.
MR. TAIKEFF:
The basis is entirely different this time, Your Honor. If I may hand it up
to the Court --
MR. HULTMAN:
You're going to the side bar.
MR. TAIKEFF:
I'm not going to say anything.
THE COURT:
Counsel approach the bench, please.
(Whereupon,
the following proceedings were at the bench;)
THE COURT:
Specifically why do you feel that --
MR. TAIKEFF:
Your Honor, the report details in the most precision imaginable the
activities of everybody with whom he was working, not just himself, and
every time he mentions another person's name it is in capital letters.
Your Honor doesn't even have to read the words, Your Honor only has to
read the names which are boldface. This report impeaches his statement as
to the explanation why the Jimmy Eagle sighting is not in there, because
it doesn't refer to anybody else's activities.
MR. SIKMA:
Your Honor, that refers to things that {1310} he personally observed other
people do.
MR. TAIKEFF:
And what people told him.
MR. SIKMA:
That is not -- what does it show other people told him?
MR. TAIKEFF:
There are eight or nine pages of what other people told him throughout.
MR. SIKMA:
There are things that people said on the radio but not interviews.
MR. TAIKEFF:
That's not true at all.
MR. HULTMAN:
Let us finish on this side, please. Might I make a request?
THE COURT: The
report will not be received. It can be used in the cross-examination of
this witness to point up any discrepancies between his testimony and the
--
MR. TAIKEFF:
I'm going to have to read every single word in the report which is going
to be the equivalent of offering it into evidence.
MR. SIKMA:
Your Honor, I object to that. He's been through this 50 times. I think
Counsel's trying to delay the trial.
MR. TAIPEFF:
Not in this case he's not been through it. He hasn't begun getting through
it yet.
THE COURT: The
ruling of the Court is that this exhibit will not be received.
MR. LOWE: A
point of inquiry just to clarify. This is {1311} a general, not relating
only to this exhibit, but general use. If Your Honor says that this is not
admitted into evidence but it can be used in cross-examination, Your Honor
is not precluding the reading of portions of it to a witness then, for
example, is that correct? I'm not clear whether you do or don't. I'm going
to make sure we don't offend Your Honor's understanding of what proper use
can be made of it in cross-examination.
THE COURT: You
may show it to the witness, ask him to read a certain portion and if that
is clearly within conflict with what he has testified, then it may be
brought out.
MR. LOWE:
Well, I guess my question, Your Honor, and this is general, but we're
going to hit this on other occasions in this trial. If the witness has
said, assume, number one, he said this only contains what he saw or did
and there are portions here which clearly by any objective reasoning give
other information, namely what other people have told him, it seems to me
we're obviously entitled to have the jury look at the document for
themselves to judge the candor and credibility of the witness. That's the
point I'm making. Mr. Taikeff showed it to you to offer, to let you see
the clearly inconsistencies.
MR. SIKMA:
There are no prior inconsistencies.
MR. TAIKEFF:
Now we have the inconsistencies and that's {1312} the basis for offering
it in evidence, to let the jury view it and use it as part of the data
upon which they judge this witness' credibility.
MR. HULTMAN:
Your Honor, now Mr. Lowe referred to two Counsels, I'd like to be heard.
MR. TAIKEFF:
NO objection.
MR. HULTMAN:
Your Honor, this is a bald attempt in order to get all kinds of hearsay
into this record and before this jury. The very limited purpose that
Counsel legitimately understands the rules concedes he has now done, that
in no way then puts a document with all of these various items, all of us
here know that that 302 represents two things basically; one, what it is
that person may have seen or observed that day and, two, whatever it is by
way of information in a general way likewise came to his attention.
MR. TAIKEFF:
That's precisely my point.
MR. HULTMbN:
But in no way does it allow the document itself to come on as the best
evidence. The best evidence is the man sitting right there that's asking
the questions.
MR. TAIKEFF:
I'm on the adverse side of the case. I don't have to accept his answers.
MR. HULTMAN:
You do as far as the inconsistencies, you have shown those out and used
the document.
MR. TAIKEFF: I
haven't begun. I need the document in {1313} order to do that.
MR. HULTMAN:
You've used it. That's what you have been doing.
MR. TAIKEFF:
Your Honor, I understand Your Honor's ruling and I will proceed.
THE COURT: My
ruling is you may state to the witness what you understand his testimony
to be and to go over what he has said and if he agrees that's what he has
testified. You may ask him to read a specific portion of that you consider
to be in conflict what that testimony and go on from there.
MR. TAIKEFF: I
understand, Your Honor.
THE COURT: I'm
not going to allow that report to go into evidence on the basis of the
record at this time.
MR. TAIKEFF: I
understand Your Honor's ruling and I have no quarrel with it except I
respectfully accept from it, other than that I have nothing else to say
about it.
THE COURT:
Yes.
{1314}
(Whereupon, the following proceedings were had in the courtroom in the
hearing and presence of the jury:)
MR. TAIKEFF:
May I proceed, Your Honor?
THE COURT: You
may proceed.
Q (By Mr.
Taikeff) Before we get back to Defendant's Exhibit 91 I want to ask you a
few more questions. You said that Marvin Stoldt, S-t-o-l-d-t, a BIA
officer, you subsequently learned also made a sighting of someone that
day, right?
A What are you
referring to, I mean?
Q I'm talking
about the afternoon of June 26, 1975. I'm talking about a look through a
distance of approximately a half a mile in roughly an easterly direction
during which time you say you saw Leonard Peltier running in profile and
recognized him at that distance by looking through a telescopic sight.
A That's
correct.
Q Now, do you
know whether a similar sighting was made by Officer Stoldt of that group
in which he identified amongst others possibly James Eagle?
A Yes, sir.
Q And do you
know what Officer Stoldt used to make his sighting?
A I later
found out they were binoculars.
Q And do you
know where he was relative to you when he ostensibly made his sighting?
{1315}
A Well, he was
at the window to begin with.
Q Of a house?
A Of a house.
He made an observation and called me over, at which time I made an
observation. While I was doing that he was gone.
Q And can you
tell us the words he spoke to you when he called you over to the window?
A The words,
no, I can't. But basically --
Q Paraphrase
him.
A Well, I was
sitting in the corner looking out the window and he said, he called me by
name and said, "There's some guys running, you know, over by the houses."
Pointed it out to me. But when I got there, my naked eye, I could see the
four people running away.
Q Okay. What
was he doing at the time he called you over? What did you see?
A Well, I had
noticed that he was there and he had his binoculars. And he was --
Q Around his
neck, in his hand?
A Well, you
know, when he was looking at him he had them in his hands.
Q Was there a
strap on them?
A I don't
recall.
Q What color
were they?
{1316}
A Thing that
comes to my mind is black.
Q What color
was the strap?
A I don't know
if there was a strap or not.
Q Can you show
us with your hands the overall size from the back lens to the front lens
approximately?
A Well, they
were pretty good size. They had a lot of power to them.
Q You don't
know that they had a lot of power, you know that it was a pretty good
size?
A Well, they
were big.
Q It was big,
right?
A Right.
MR. TAIKEFF: I
move to strike the portion of the answer that they had plenty of power on
the ground of incompetence.
THE COURT:
That they had a lot of power?
MR. TAIKEFF:
Or a lot of power.
THE COURT:
That part will be stricken.
MR. TAIKEFF:
Thank you, Your Honor. (By Mr. Taikeff) Now, how big were they from front
to back, front being the big lens to the front, back being the little lens
that you put against your eye. I mean, I wasn't paying that much attention
to his binoculars. I know he had binoculars, and I know that he was
adequately seeing --
{1317}
MR. TAIKEFF:
Objection, Your Honor, on the grounds that he's interpreting what was in
somebody else's mind. Move to strike.
THE COURT: It
will be stricken.
Q (By Mr.
Taikeff) Go on, sir.
A All I can
say he had a big set of binoculars.
Q Okay. Do you
have a big set of binoculars, sir?
A Personally?
Q Yes.
A No, sir.
Q Did he then
say something to you?
A At what
point?
Q Sometime
between the time he raised the binoculars to his eyes and the time he
lowered them from his eyes?
A Well, the
only conversation we had was the fact that he told me to come over there.
He asked me to come over there. He said there was some activity and he saw
people running, and I responded.
Q And then
what happened immediately after that? He said nothing?
A Nothing.
Q Didn't tell
you that he saw Jimmy Eagle?
A Didn't say a
thing.
Q Didn't tell
you that he saw Leonard Peltier?
A (No
response.)
{1318}
Q Do you know
as of that date how long Marvin Stoldt had been a police officer?
A How long?
Q Yes.
A For some
time, several years.
Q More than
five years?
A I don't know
personally, but he's been --
Q Would you
estimate his age as of that date?
A Age?
Q Yes.
A My age,
upper thirties.
Q On that day,
talking about the afternoon of June 26, 1975, did you know that Leonard
Peltier was an AIM activist?
A An AIM
activist?
Q Yes. An
American Indian Movement activist, a political person? Yes or no.
A No.
Q You had
heard the name before, though?
A Oh, yes.
Q Did Marvin
Stoldt, up to the time he put the binoculars to his eyes, that is to say
from the day you first met him until the moment he picked up those
binoculars to his eyes, did he ever mention the name Leonard Peltier to
you? Yes or no.
A No.
Q Did Marvin
Stoldt say anything to you following the time he {1319} put down his
binoculars?
A No. Because
when I was doing my thing and later done, I turned for him and he was
gone. I don't know where he went. He left the building.
Q Did you see
him again that day?
A Yes.
Q Did you tell
him that you saw Leonard Peltier running in profile at a distance of
approximately a half a mile? Yes or no.
A No.
Q Is it your
testimony that on June 26th, June 27th, June 28th and June 29th none of
the agents with whom you were working said anything to you about Marvin
Stoldt having identified one or more of the four people who were running?
A Somehow I
don't understand that. Could you rephrase that, please.
Q Yes. Be
happy to. I'll put it in the form of affirmative statement. You tell me
whether it's true or not. Up to the time that you wrote your report, your
302, which is Defendant's Exhibit 91 for identification, none of the
agents you were working with said anything to you about the alleged
sighting made by Marvin Stoldt?
A The other
agents, no.
Q Did anybody
prior to the time you wrote Defendant's Exhibit 1 for identification?
{1320}
A Well, Marvin
Stoldt told me.
Q When?
A Well, he
told me about Jimmy Eagle in the car on the way back to where we had
located the bodies.
Q He told you
that he had seen Jimmy Eagle?
A Yes. That's
what he said.
Q Didn't you
tell us a little bit earlier that you didn't learn about that for several
months?
A No, I did
not.
MR. TAIKEFF:
Excuse me one moment, please.
Q (By Mr.
Taikeff) What did you say to him when he told you that news?
A I wasn't
saying anything. I was listening to what he had to say. I was driving the
vehicle.
Q Did you
discuss that news with any of your fellow agents up to the time you wrote
your report?
A Yes, sir.
Q Am I correct
that when Marvin Stoldt told you what he did in the car that you
considered that to be an important piece of information in connection with
your investigation?
A Yes, sir, I
did.
Q And is it
fair to say that the report you wrote on June 30, 1975, which is now
Defendant's Exhibit 91 for identification, contained many things that
people had told you that afternoon?
A Yes, that's
true.
{1321}
Q I thought
you told us a little while ago that your report only contained things that
you did. Are you changing your testimony in that regard?
MR. SIKMA:
Your Honor, I would object on the grounds that it's argumentative and also
a misstatement of the witness's answer some time ago.
MR. TAIKEFF:
Perhaps Mr. Sikma would like to state what it is just to help counsel,
Your Honor. What was that earlier answer. I would appreciate the
assistance.
MR. SIKMA:
Your Honor, I believe he indicated at that time what he had seen on that,
and what he did in his conversations with people on that particular
afternoon.
Q (By Mr.
Taikeff) Was that your earlier answer?
A Yes, sir.
Q But in fact
in addition to that your report contained what numerous people told you in
the course of that day, isn't that true, sir?
A Yes, sir.
MR. SIKMA:
Your Honor, I object to counsel's harassment of the witness here. It's
obvious that he's being sarcastic and I would object to this, Your Honor.
THE COURT:
This sarcasm will be disregarded.
THE WITNESS:
Yes, Your Honor.
Q (by Mr.
Taikoff) Then, sir, would you please tell us all why you didn't write in
your report on June 30th this very {1322} important piece of information
which Marvin Stoldt allegedly told you four days earlier?
A Well, to
begin with the little items that people told me things in my 302 pertain
to the movements and the commitments that I would make.
The particular
observation by Marvin Stoldt to me was a significant piece of evidence and
observation, if you will. On the way back it was my position as an agent
when interviewing people as to what had transpired that day, and keep in
mind that everybody who was with me would be interviewed, their statements
would be made known on 302's.
It was at that
time coming back in the car that that specific observation, this piece of
evidence, was to be made in a separate 302 trying to determine what his
observations were. And that particular observation and the things
surrounding that particular conversation were listened to and incorporated
into a 302.
Q I want to
make sure I understand your answer. You said in essence that that was very
important so you wanted to make sure you got it down in a separate 302?
Yes or no.
A Well, that's
true, yes.
Q Okay. Well,
why didn't you interview him in the car while his memory was freshest?
A I don't
understand that. What do you mean?
Q Well, I was
suggesting to you, sir, that I didn't understand {1323} it either, and I
wanted you to explain why you didn't take the occasion right then and
there in the car to say, "Okay, Mr. Stoldt, here are my credentials, I'm
an FBI agent. I want to interview you because you've just told me
something very important. Now, tell more about it in detail."
A Well, the
formality, really didn't need to go through that, we've been through it
all day. We were on our way back to go assist the guys that were
recovering the bodies that were doing the crime scene, and that's where we
were going.
We didn't have
time to do a formal interview. We were making, we were trying our
thoughts.
Q How long did
that ride take before you got to your destination?
A Well, I left
from the area where we had chased the group of people into the hills, and
it was dark, and like less than five minutes probably. We drove back to
the residences, the area where the rest of the people were, agents, police
people. Didn't take long.
Q So you were
busy that day?
A Very busy.
Q And that
stood in the way of your getting on paper so that it would become a
permanent part of the FBI files, the most important piece of evidence you
acquired that day? _
MR. SIKMA:
Objection, Your Honor. That calls for an {1324} opinion, conclusion of the
witness.
THE COURT:
Sustained.
Q (By Mr.
Taikeff) Was it not --
MR. SIKMA:
Same objection, Your Honor.
MR. TAIKEFF: I
didn't finish the question yet. Do I understand the Government to object
before I finish the question?
THE COURT: You
may state your question.
MR. TAIKEFF:
Thank you.
Q (By Mr.
Taikeff) Was it not a Thursday?
MR. TAIKEFF:
Do you object to that question?
MR. SIKMA:
Your Honor, I object to counsel --
THE COURT: The
remark of counsel will be disregarded. It is wasting time. Proceed.
Q (By Mr.
Taikeff) Tell us, sir, in your opinion as a professional law enforcement
officer, other than your supposed sighting of Leonard Peltier and Stoldt's
supposed sighting of Jimmy Eagle, was there any other piece of evidence
concerning the solution to the case that you gathered that afternoon by
sight, sound or otherwise.
MR. SIKMA:
Your Honor, I would object. That calls for a conclusion of the witness and
invades the province of the jury.
MR. TAIKEFF:
Of course I'm asking for his conclusion.
THE COURT:
That objection is overruled.
{1325}
A No.
Q (By Mr.
Taikeff) How many pages did you write on June 30, 1975 concerning your
activities on June 26, 1975?
A Well, I
didn't write any pages. My statement was typed and it consisted of eight.
Q Did you
think that question suggested that you typed the report? Is that your
understanding of my question?
A Yes, sir.
Q I'm sorry, I
phrased it incorrectly. How many pages long is the report that you
dictated and somebody else typed?
A Eight pages.
Almost eight.
Q Single
spaced or double-spaced?
A Single.
{1326}
Q Now, that
report does contain a paragraph which refers to your alleged sighting of
Leonard Peltier, does it not?
A My sighting,
yes.
Q And when you
were dictating the words which eventually were created by the typewriter
into this paragraph, were you then and there reminded of the fact that
Marvin Stoldt told you that he too sighted somebody?
A What do you
mean, reminded by someone?
Q When you
were dictating this paragraph, didn't you dictate this paragraph, this big
paragraph on Page 2?
A I dictated
everything, sir.
Q But
specifically you dictated that paragraph, didn't you?
A That's
correct.
Q That
paragraph refers to your alleged sighting through the telescopic sight,
doesn't it?
A That's
correct.
Q When you
were dictating that, was it in your conscious mind that Marvin Stoldt had
had a similar experience that afternoon?
A I don't
recall, but it possibly did.
Q Any reason
why you didn't say: Marvin Stoldt, a BIA officer, also made a similar
sighting, but I have to interview him yet and details will follow?
A I don't know
if it come out that way, but it probably crossed my mind.
{1327}
Q Is there
anything, even one word, in Defendant's Exhibit 91 making reference to any
sighting by any person other than yourself? "Yes" or "no".
A I would have
to look to be --
Q
(Interrupting) Please do (handing).
A Sure. Well,
o.k., sightings of people.
Q At a
distance?
A Yes.
Q Identifying
somebody by name? "Yes" or ''no''.
A By name?
Q Yes.
A No. No, sir.
Q By the way,
when did you get around to interviewing Marvin Stoldt?
A Well, I had
a conversation with him on the way, like I said, to the crime scene.
Q No, no. I
mean an interview in the sense that warranted the writing of the 302.
A Well, I
guess it was a couple of months later that Marvin Stoldt came into the
office.
MR. TAIKEFF:
May I have a piece of paper marked for identification, please?
Q (By Mr.
Taikeff) So he came into your office and tell us what happened when he
came into your office.
A Well, I
interviewed him.
{1328}
Q And then you
wrote your report?
A Yes, I did.
Q And are you
able to state the date of that interview?
A If I may
look at the 302, I can.
Q I would be
happy to show it to you, but my question is: Without looking at anything,
can you tell us the date? "Yes" or "no".
MR. SIKMA:
Your Honor, the question has been asked and answered.
MR. TAIKEFF: I
have not asked that question before.
MR. SIKMA:
Your Honor --
THE COURT:
(Interrupting) Are you able to state the date?
THE WITNESS:
Not for sure, sir.
Q (By Mr.
Taikeff) Would it help you if I suggested that it was on September 4,
1975?
A Yes, if
that's what it says on there
Q Now, did you
say before that it wasn't necessary for you to go through the formality of
identifying yourself as an FBI Agent to Mr. Stoldt whom you had worked
with?
A Men -- I
mean Marvin and I worked together for a long time. He knew who I was.
Q Well, when
he casually dropped into your office in September of 1975, did you go
through a formal identification procedure at that time?
{1329}
A No.
Q Would there
then be any reason for you to have said so in a report you wrote of that
interview?
A Well, you
know, shaking hands and saying "Good to see you", and yes, well, that's an
identification.
MR. TAIKEFF:
May I have this piece of paper marked for identification? (Counsel
confer.)
MR. SIKMA:
Your Honor, may we approach the bench?
MR. TAIKEFF:
No, your Honor, I ask that I not be interrupted at this point in my cross
examination.
THE COURT: You
may approach the bench.
(Whereupon,
the following proceedings were had at the bench:)
THE COURT: Mr.
Taikeff, I am running the court.
MR. TAIKEFF: I
think the Government is running the court, your Honor. They do it at a
time, in a critical point in the defense cross examination. That was
totally unnecessary. I was just about to impeach him, and they know it.
MR. SIKMA:
Your Honor, the type of information if -- I am sure that -- I am sure that
the witness knows what type of information is coming with regard to a
point that's totally irrelevant, concerning whether or not he identified
himself as an FBI Agent. m is matter is so totally {1330} irrelevant that
it does not merit the time that this counsel is taking on this type of
examination.
THE COURT: Mr.
Taikeff, that is the concern that the Court has, and that is that the
requirements of the formal request may be such that when the report is
written, that it shows that an identification has been made whereas in
fact, if the report is from somebody, that is, on an interview with
someone that is well-known in actual practice, the meeting may be much in
the same form; and I think that type of impeachment is of no probative
value and has a tendency to be misleading.
MR. TAIKEFF:
He can certainly explain it, your Honor. I think it is just one more
instance of the variation between the recorded facts and what he has
testified to.
MR. SIKMA:
Your Honor, I would object to it as irrelevant and waste of time.
THE COURT: It
is irrelevant. It is a minor detail, as I say, that is misleading; and I
think under Rule 611 it should be excluded.
MR. LOWE: Your
Honor has seen the page we are talking about?
THE COURT: No,
I have not seen the passage. I am talking about the questioning, as to how
they meet, when the interview was conducted.
{1331}
MR. TAIKEFF:
He said it was an informal visit, and that's the paragraph. That's Exhibit
106 which the Court is looking at for identification.
(Court
examines document.)
THE COURT: All
right. The report reads: That subsequent to the identification of the
interviewing agent, furnished the following information.
Now, I can
conceive that in any type of an investigative organization a report would
make a statement of that kind.
MR. TAIKEFF: I
just want to ask him whether it was a fact or whether it was merely
recorded.
THE COURT: It
has no probative value, and I think that is exactly what Rule 611 reaches.
It is in the nature of lint-picking, and it is wasting time.
MR. TAIKEFF:
It is taking much more time to decide rather than getting the answer to
the question.
THE COURT: I
think that is true.
MR. TAIKEFF:
Would you want to give in this instance only -- I can see no general need
for an instruction -- for the witness not to discuss with anyone his
testimony during the recess? I am fairly close to finishing. I don't want
anyone to speak with him about his testimony.
THE COURT: I
will not give that kind of an {1332} instruction in this case, I am going
to have to give that instruction all through this trial.
MR. HULTMAN: I
object strenuously. I have a right to talk to a witness any time.
THE COURT: I
have overruled it.
MR. TAIKEFF:
Thank you, your Honor.
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
MR. TAIKEFF:
Is it your desire to recess? I have more than just a few minutes.
THE COURT: You
have more than just a few minutes?
MR. TAIKEFF:
Yes, I do.
THE COURT: All
right. The Court is in recess until 1:30. (Whereupon, at 12:31 o'clock,
p.m., the trial of the within cause was adjourned until 1:30 o'clock,
p.m.)
{1333}
AFTERNOON SESSION
March 24, 1977
1:30 o'clock,
P.M.
(Whereupon,
the following proceedings were had in the courtroom without the hearing
and presence of the jury:)
THE COURT: For
Counsel's information, the Court will have to recess at 4:30 this
afternoon. The reason for the early recess is that one of the jurors has a
personal matter that has to be attended to.
You may bring
in the jury.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury)
THE COURT: You
may proceed.
MR. TAIKEFF:
Thank you, Your Honor.
Q (By Mr.
Taikeff) Agent Coward, I am placing before you an object which has been
marked Defendant's Exhibit 107 for identification, and a blank piece of
paper which I am placing underneath it and I'm putting it in a certain
position for you.
MR. TAIKEFF:
Perhaps I should show it to government counsel, first.
Q (By Mr.
Taikeff) Now, sir, if it is necessary for you to do so, I would encourage
you to look at the central part of Government's Exhibit 71 with particular
emphasis on the Y intersection that has been referred to as having the
letter "P" {1334} on it and I ask you to look at the exhibit marked for
identification which I just placed in front of you and ask whether you
recognize that that is a drawing which purports to approximate the area
around or near the residences and Y intersection.
A It appears
that, sir.
Q Now I'm
giving you a special marking pen which I think you will find writes in red
and I ask you to look at Defendant's Exhibit 107 for identification,
decide what the path was of the person whom you saw in the group of four
and after you've made that decision put a dotted line showing as much of
the path as is represented by what you saw from the time you first saw the
group until you last saw the group.
A
(Indicating.)
Q Do I
understand from the way you marked that that by the time the people
reached this area on the right-hand branch of the Y (indicating) almost at
the tree line, that was the last you could see of them?
A Uh-huh.
That's correct.
Q Now tell me
if I am correct as to the following: that when you first saw the group you
saw them with the naked eye?
A That's
correct.
Q Would you
then put near that dotted line the number "1" to represent where the group
was. I realize the group wasn't in one point, but as close as you can get
it because that's a {1335} small diagram. Put the number "1" where the
group was when you first saw it.
A
(Indicating.)
Q Now put a
"X" to designate that you could no longer see the group, wherever that
place was.
A
(Indicating.)
Q And is it
your testimony that you watched the group traverse that entire distance
from "1" to "X" along that line?
A That's
correct.
Q And would
you put a "W" where -- withdrawn. Did you see the person you say was
Leonard Peltier travel over a distance?
A Yes, sir.
Q Put a "W"
where you say he was when you first saw him.
A Well, when I
first saw Leonard Peltier would have been the first time that I saw the
group.
Q I know. But
where you first identified him. I stand corrected.
A Just shortly
before the "X."
Q And might I
assume then that you continued to see him until you couldn't see anymore?
A That's
correct.
Q So he went
from the position marked "W" to the position marked "X" and disappeared?
A That's
correct.
{1336}
Q And would
you say that was roughly half the total distance traversed by the group?
A Roughly.
Q When you and
Officer Stoldt were on your way to another location from the Jumping Bull
community, were you traveling in an automobile?
A Any location
or another?
Q Well, I
think you said that there came a time in the afternoon when Stoldt told
you about his sighting. You were in an automobile at that time. Weren't
you going to some other location?
A Yes. Officer
Weston reported a sighting and we responded to it.
Q I'm talking
about that incident. You traveled in an automobile?
A Yes, sir.
Q And you were
there and Stoldt was there I'd assume.
A That's
correct.
Q Who else?
A Special
Agent Vincent Breci.
Q That's
B-r-e-c-i?
A Yes. And a
BIA officer Eli Conroy.
Q Now I want
to make sure that I have not misheard or misunderstood you. I'll very
quickly click off some key facts. {1337} You say the sightings took place
in the late afternoon of the 26th?
A Which
sightings?
Q Yours and
Stoldt's..
A You mean of
the four people?
Q Yes. I'm
talking about the sightings through some kind of telescopic sight,
binoculars or other aid.
A It was
approximately 3:45 as I stated before.
Q Okay.
Sometime after 3:45 but before you quit working that night Stoldt told you
about his making a sighting?
A Of the four
people; yes.
Q And the fact
that he had seen Jimmy Eagle?
A That's
correct.
Q That was in
the car?
A That was in
the car.
Q That-because
you were preoccupied or busy you did not interview him in depth so that
you could write a 302 about it?
A At that
time; no.
Q My statement
is factually correct?
A I didn't
write a 302 at that time.
Q And that was
because you were preoccupied and busy?
A That's
correct.
Q And that you
did not do so until he came to your office sometime several months later
in the month of September of 1975?
{1338}
A That's
correct.
Q You're
certain of that?
A You mean
when he came there?
Q Yes.
A Couple
months ago?
Q Yes.
A I can tell
you this: I hadn't seen him until that time.
Q And you're
certain of that?
A Yes.
Q As certain
as the fact that you saw Leonard Peltier through your telescope?
A Yes.
Q Now this
morning do you recall whether in substance when first asked about it you
said that you did not know about the Stoldt's sighting for a long time?
A Of Leonard
Peltier. That's correct.
Q Well, let's
explore that. Am I to understand that when you were questioned this
morning and you said that you hadn't heard about it for a long time, you
were talking about the sighting by Stoldt of Peltier?
A That's
correct.
Q But not
about the sighting by Stoldt of Jimmy Eagle?
A That's
correct.
Q You're sure
of that?
{1339}
A That's what
I said this morning.
O Okay. I want
to read some questions and answers to you and they'll be followed by
another question that I will put to you now. Question: "And from a half a
mile away looking through the telescopic sight of a rifle you were able to
recognize the defendant in profile while running?" Answer: ''Yes, sir."
Question: "Have you ever performed that feat at any other time in your
life?" Answer: "No." Question: "Now you were not the only person who
accomplished something like that that afternoon, isn't that true?" Answer:
"I later found that out; yes, sir." Question: "When you say `later,' when
was that?" Answer: "Well, the first time I had heard that was a couple
months after my report. I was not cognizant of it."
My question to
you, sir, is that the series of questions and answers in which it is your
testimony that you were telling this Court and jury that you were thinking
about the sighting of Peltier by Stoldt, not the sighting of Jimmy Eagle
by Stoldt?
A Those
questions there are referring to questions that you were asking me, I
believe a few questions before those questions that you just read we were
discussing whether we had a discussion about a sighting of four
individuals, one of {1340} which was Jimmy Eagle. That's true. But there
was never a discussion about Leonard Peltier being in that one of four at
that time and it is true that I first learned of that when the interview
was conducted a couple months later.
Q Are you
telling us that it is your recollection that prior to this portion of the
interrogation this morning we had been talking about a sighting by Stoldt
of Jimmy Eagle?
A Well --
MR. SIKMA:
Your Honor, I'd object to this, It's repetitious. The questions have been
asked and answered a number of times.
MR. TAIKEFF:
I've never questioned him about this.
MR. HULTMAN:
Wait until the objection is finished, please.
MR. TAIKEFF: I
don't understand this claim of the government when something is
repetitious when it is occurring clearly for the first time in this
courtroom.
MR. SIKMA:
Your Honor, Counsel has been going over this matter with the witness a
number of times for an hour or so and I think that it's totally
repetitious and completely irrelevant at this point.
THE COURT: He
may answer the last question.
THE WITNESS:
Would you repent it, please.
THE COURT: The
reporter will read it back.
{1341}
(Whereupon,
the last question was read back.)
A No. That's
not it at all. Your question is to me did Stoldt ever talk to me about
seeing Peltier during the sightings of those four people?
Q (By Mr.
Taikeff) Let me rephrase my question so there can be no misunderstanding.
A Okay.
Q I just read
some questions and answers to you. Just before that this afternoon you
told us that in your mind was the subject of Stoldt sees Peltier, not
Stoldt sees Eagle, correct?
A That's true
in both cases.
Q I'm only
talking about one case. I'm talking about the question I put to you this
morning. This question: "Now you were not the only person who accomplished
something like that that afternoon, isn't that true?" Answer: "I later
found that out; yes, sir."
A That's
correct.
Q Now you were
asked that question and you gave that answer, right? Yes or no?
A That's yes.
That's correct.
Q Now when I
spoke about an accomplishment something like that, what did you understand
that to mean when you were asked that question?
{1342}
MR. SIKMA:
Your Honor, I would object to this as Counsel playing with words. It's a
matter of semantics. It's argumentative and it's a waste of time.
THE COURT:
Again I'm going to permit the witness to answer the question. The reporter
may read the question back.
(Whereupon,
the last question was read back.)
A You summed
it up as an accomplishment and I summed it up as something that I
observed. You asked me if I had ever done it before and I have not.
Q (By Mr.
Taikeff) And then I asked you whether there was anyone else who did
anything like that that afternoon and you in essence said no, you didn't
find out about it for a couple of months. Didn't you say that this
morning?
A Well, it's
possible if that's what it says.
Q Well, if you
said that, that wasn't factually correct, was it?
A I think the
line of questioning was concerning the particular knowledge of me knowing
whether Marvin Stoldt had told me about the sighting of Peltier and my
questioning of, my answers to that questioning, questions are in line with
that.
{1343}
Q Aren't they
in line, aren't your answers in line with your effort in the latter part
of June to fabricate evidence and write false reports?
MR. SIKMA: I
object, Your Honor.
THE COURT: The
objection is sustained. It's argumentative.
Q (By Mr.
Taikeff) In your work on the reservation did you become apprised of the
fact, if it was a fact, that the American Indian Movement was opposed to
the person known as Wilson who was the tribal leader at that time?
MR. SIKMA:
Your Honor, I object to this as irrelevant beyond the scope.
MR. TAIKEFF:
It's a foundation question, Your Honor.
MR. SIKMA:
Beyond the scope of the direct examination.
T B COURT:
It's irrelevant and the objection is sustained.
Q (BY Mr.
Taikeff) Was it not decided amongst the agents working on the case on or
about June 30, 1975 that this was an opportunity to eliminate one of the
AIM leaders, namely Leonard Peltier?
MR. SIKMA: I
would object to that, Your Honor, as clearly improper, no foundation and
argumentative.
THE COURT:
Sustained.
Q (By Mr.
Taikeff) Did you and the agents reach such an {1344} understanding between
yourselves and embark upon a course of conduct --
MR. HULTMAN:
May we approach the bench, Your Honor?
THE COURT: The
objections are sustained. The subject will not be gone into any further
with this witness. It is beyond the scope of the direct examination. The
Court has ruled that it is irrelevant and we are wasting time.
Q (By Mr.
Taikeff) Didn't you perjure yourself in this courtroom when you said that
you did not interview Marvin Stoldt prior to September, 1975? Yes or no.
MR. SIKMA:
Objection, Your Honor. This is legal question, calls for a legal
conclusion on the part of the witness.
MR. TAIKEFF:
I'll withdraw the question as stated.
MR. SIKMA:
It's argumentative.
Q (By Mr.
Taikeff) Did you not lie in this courtroom?
MR. HULTMAN:
Your Honor, may we approach the bench, please?
THE COURT: Not
at this time.
Q (By Mr.
Taikeff) May I have an answer to my question? Did you lie in this
courtroom when you said that you did not interview Stoldt prior to
September of 1975 on the subject of his sightings, long distance
sightings? Yes or no.
A No.
{1345}
Q I show you
Defendant's Exhibit 105 for identification, which is not in evidence, but
you may look at it. What is it?
A It's a 302.
Q Of what?
A Marvin
Stoldt.
Q What do you
mean "of Marvin Stoldt"? Do you mean an interview of Marvin Stoldt?
A Yes, sir.
Q By whom?
A By myself
and Vincent Louis Breci.
Q And
according to that 302 what was the date of the interview?
A June 28,
1975.
Q And what was
the subject matter of the interview?
A Well,
basically it was a sighting by him at approximately 3:45 P.M.
Q Of?
A Of Jimmy
Eagle.
Q Now, sir, I
ask you again, when you told us with the same certainty with which you say
you saw Leonard Peltier that afternoon that you did not interview Marvin
Stoldt on that subject until September, were you telling us the truth?
A That's
correct, I was.
Q Would you
explain the piece of paper which is in front of you.
A As I
explained earlier the ride back from the Pumpkin Seed {1346} house on this
particular day --
Q On which
particular day?
A That's the
28th.
Q Yes. Not the
26th, friend.
A That's
wrong.
Q What's
wrong?
A That date.
Q It is wrong?
A It is.
Q You know the
name of the typist who typed it?
A I don't
know. It says DL.
Q There are
three dates on every 302; isn't that correct?
A That's
correct.
Q The date
it's typed?
A That's
correct.
Q The date
it's dictated?
A That's
correct.
Q And the date
of the interview or activity?
A That's on
there, too.
Q And what in
the case of that exhibit is the date in each and every instance?
A It's the
28th of June, 1975.
MR. TAIKEFF: I
offer it in evidence, Your Honor.
MR. SIKMA:
Same objection, Your Honor.
THE COURT:
Sustained.
{1347}
MR. TAIKEFF:
May I come to the sidebar?
THE COURT: You
may.
THE CLERK:
Would you identify the exhibit.
MR. TAIKEFF:
Yes. It has been identified, but I'll identify it again. It's 105.
(Whereupon,
the following proceedings were had at the bench:)
MR. TAIKEFF:
May I ask Your Honor the leading basis for the sustaining of the
Government's position, so that I know whether or not I perhaps have
overlooked something in laying the foundation for the introduction of this
document.
THE COURT: You
may state the legal basis as to why you feel that document is admissible.
MR. TAIKEFF:
Because it provides graphic illustration that contradicts important
testimony strongly adhered to by this witness. It impeaches him in a
significant way, and I also want to be able to read the contents of it to
the jury. It ties in with other evidence which will be coming in this
case, and I'm left with something in a black bag that I cannot refer to in
its text if I am not able to introduce this report. It is surely relevant.
MR. SIKMA:
Your Honor, may I respond?
THE COURT: You
may respond.
MR. SIKMA:
Your Honor, the only testimony that this witness gave essentially on
direct examination was, number {1348} one, that he sighted Leonard
Peltier; and in addition he talked about seeing some other individuals
which were fleeing from the area. And I guess there was one other point
where he indicated that he went down to the wooded area, that there was
some shooting in that area. And that he had sighted two individuals.
Now, the other
one thing that's significant about this: is while he's testified to this,
the defense counsel in opening statements said that we'll have no people
to dispute essentially with the fact that Leonard Peltier was in this area
on the --
MR. TAIKEFF:
That's true, Your Honor.
MR. SIKMA: --
on the 26th of June. I fail to see what the use of spending about four
hours of the time in court cross-examining this witness on a very
insignificant issue. This particular thing, the witness has testified that
he believes there's any accuracy -- inaccuracy on the date. I do not see
where that is an important and impeaching matter.
I think that
it is a very insignificant matter of perhaps typographical error or
something of this nature. But it certainly is not worth the time and
effort that's been gone into in this.
Second thing
is that it is also very misleading concerning its importance in this trial
the fact that counsel is, for what reason I don't know, but spending a
considerable {1349} amount of time on a witness that took about fifteen
minutes on direct examination, if that long.
MR. TAIKEFF:
Your Honor, the answer to the main point made by Mr. Sikma, which I think
could be called out of his statement, is that we don't dispute his
presence. The point is that when this document was prepared in June of
1975 the Federal Bureau of Investigation did not know that that was not
going to be an issue in the case that they were planning against the
defendant, and we are going to prove before this trial is over that the
FBI has manufactured evidence and witnesses against the defendants in this
case, or that the defendants in these cases, and this is the beginning of
that proof.
MR. SIKMA:
Your Honor, I would point out a rather credible, incredible fallacy in the
defendants, counsel's argument. They've indicated that we have
manufactured evidence.
MR. TAIKEFF:
Not you, Mr. Sikma. The FBI.
MR. SIKMA: The
FBI. This man stated on direct examination that he made that observation,
made a record of it very shortly thereafter of identifying this person.
He has stated
that as far as this person is concerned he did not, he did not discover
that someone else had also identified this individual until some time
later, that is, the defendant, Leonard Peltier. And I can't see where that
{1350} shows evidence of manufacturing evidence.
I just fail to
see where that -- totally irrelevant. If we don't call this witness, I
would like to see what difference it makes. Totally irrelevant whether
it's corroborated. It's corroborated practically by the defense
themselves.
MR. TAIKEFT:
We are calling Stoldt when they took Stoldt off the witness list, we gave
them notice that we were calling him, and we will call him.
MR. SIKMA:
Well, we could still call him, but you know they're complaining about it
and now they want to call him as a witness. They're saying that he's
unreliable and that we've manufactured that witness. And now they want to
call him as a witness. I think it's totally absurd.
MR. TAIKEFF:
The case is absurd. Our position is not absurd.
MR. SIKMA: We
would like to proceed in our case. They've already had overnight to
prepare this cross-examination. We've been delayed in putting on another
important witness, and I think that this is a delaying tactic on the part
of counsel here.
MR. TAIKEFF:
Let me assure you that we're anxious for Norman Brown to take the stand.
And if necessary be happy to work late into the night to keep him as late
as he has to be on the stand.
{1351}
THE COURT:
That of course is not possible as I've already announced.
MR. SIKMA:
It's no wonder. Counsel knows it's not possible, Your Honor.
THE COURT: The
offer of Exhibit 105 is denied. Court finds in view of the witness's
testimony that its impeachment value would be very slight.
Further finds
that the question that preceded the offer was placed in terms of the
witness lying, which the Court views as an improper question; and the
receipt of the exhibit will simply emphasize the improper suggestion in
the minds of the jury.
MR. TAIKEFF:
Your Honor, yesterday morning at the beginning of the court day in
colloquy with the Court I suggested that it had been my experience that
there were times when law enforcement officers took the stand and had
convenient lapses of memory. And Your Honor was offended by that
suggestion.
THE COURT:
That is something for counsel to present to the jury in argument. It is
not a proper interrogation. You may interrogate him as to whether they
have made conflicting statements. When the case is argued you can argue as
to whether or not they were lying, and were they lying. But for counsel to
stand up and make these insinuations in improper in my opinion.
{1352}
MR. TAIKEFF: I
understand that Your Honor is not a fact finder in this case, but if Your
Honor is not already impressed with the fact that this witness has lied on
considerable portions of his testimony, then Your Honor is absolutely
immune to what is obvious. Because Your Honor just cannot believe that the
Federal Bureau of Investigation has done and is doing the kinds of things
which have been going on and are going on in this case.
And I want
Your Honor to know that I sincerely believe that if that's Your Honor's
position, it's because Your Honor has, with all due respect to the Court,
is an incorrect one. And I would ask Your Honor to keep an open mind with
respect to what has been done in this particular case.
Because if
five years ago someone suggested to Your Honor that the revelations of
1973 and 1974 were going to be made, I'm sure Your Honor would, as I would
have at that time, never believed it possible. But Your Honor, we will
prove before this case is over a criminal conspiracy on the part of the
FBI to convict this defendant. And Your Honor is frustrating that effort
with rulings that are legally incorrect because Your Honor, in good faith,
just cannot accept the proposition which we offer in this case.
And I assure
Your Honor that we know what we are talking about. We have proof of it and
it's going to develop {1353} in the course of this trial.
MR. SIKMA:
Your Honor, this is the same, I heard this same speech before. I suppose
we are going to get into matters of 1960 and early 1970. Totally
irrelevant --
MR. TAIKEFF:
No, we're not.
MR. SIKMA: --
to the defense, to the guilt or innocence of this defendant.
We have
brought witnesses here, we intend to present our evidence on the basis of
physical evidence. This argument made by counsel, the Government contends,
is totally out of line. I've heard this sort of thing over and over, and
all it does is delay in getting the evidence before the jury. And I think
this is a delaying tactic on the part of counsel, and I would urge the
Court to keep this case moving along.
MR. LOWE: May
I ask a point of inquiry? I'm not clear when you say about the lying. And
I have a witness later on, so I want to understand what you said.
THE COURT: The
record is closed. I have made my ruling.
MR. LOWE: I
understand. May I ask just the general effect of what you said so I do not
offend what you said here at a later time.
THE COURT: You
may proceed at a later time. I'm not ruling any further. I've made my
ruling, I'm not saying anything more.
{1354}
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:}
Q (By Mr.
Taikeff) How many times did you interview Officer Stoldt concerning the
subject matter of his long distance sighting?
A Two times.
Q And when did
those interviews take place?
A Well, the
first one which I have stated before, I never completed.
Q That was on
June 26th?
A That's
correct. We're in the car talking.
Q And the
second one?
A Was a couple
months later.
Q And
Defendant's Exhibit 105, which I show to you, is the report of your
interview with him?
A That's
correct.
Q But you say
it has the wrong date on it?
A The date
that the conversation took place with Vince Breci and myself who were the
two in the car on that particular day.
Q No. But the
date, June 28, you say that you believe that's a mistake, it should be
September?
A No, no, no,
no. The June 28 is a mistake as far as the day that the interview took
place.
Q You are
saying that it should be June 26th on the line that says "interviewed on"?
{1355}
A That's
correct. That's what I'm saying.
Q I see. So
that of the three dates, you have no quarrel with the fact that it may
have been transcribed on June 28?
A Oh, no, no.
Q And you have
no quarrel that it may have been dated or dictated on June 28th. You say
that it should be shown interviewed on 6/26/75?
A That's
correct.
Q I see. I
thought you said you didn't write a 302 concerning the interview in the
car?
A Well, you
asked me if I took notes, and I did not take notes.
Q Didn't I ask
you whether there was a report or a 302, and you said you didn't have time
to do it in depth because of other commitments?
A That's
correct. On that particular day, that's correct.
Q Oh, you mean
you did it on a subsequent date?
A That's
correct.
Q I see. Now,
when Stoldt came to your office in September what was the nature of the
conversation you had with him then?
MR. SIKMA:
Your Honor, I would object to this as being clearly repetitious.
THE COURT:
Why?
MR. TAIKEFF: I
have not asked that question before.
THE COURT: I
beg your pardon?
{1356}
MR. TAIKEFF: I
have not asked that question before. I'm referring now to a different,
entirely different document.
THE COURT: Are
you suggesting you have no questioned this witness about his interview
with Stoldt?
MR. TAIKEFF:
No. The content of the interview concerning that subject in September.
THE COURT: I'm
aware of that. But you have asked this witness about the interview in
September?
MR. TAIKEFF:
Yes. I mentioned that subject before. I am now asking for the content of
what did Stoldt say to him.
THE COURT: All
right. He may answer that question.
A Well, he
said several things.
{1357}
A Well, he
said several things.
Q (By Mr.
Taikeff) On the subject of the long distance sighting?
A Well, off
the top of my head, without looking at that 302? Q Yes.
Q He told me
that particular day that he had in fact observed Leonard Peltier in a
group of four people that we both saw running into the vicinity which I
pointed out up here earlier.
Q Now, on the
subject of the long distance sighting, is that all he said to you on that
day?
A There were
several things. This was the first opportunity that not only myself but
the investigation had to sit down with Marvin Stoldt and determine exactly
what he did on that particular day.
Q All right.
Now, focus your attention on what he said to you concerning the sighting,
the long distance sighting. That's all I am focusing my attention on.
He told you, I
gather, that he saw Leonard Peltier?
A That's
correct.
Q Did he say
anything else about long distance sighting that day?
A Concerning
Leonard Peltier?
Q No,
concerning long distance sighting.
{1358}
A I would have
to recall my memory from that particular 302, sir.
Q Are you
saying you don't recall?
A That's what
I am saying, sir.
Q Did he say
anything about Jimmy Eagle that day?
MR. SIKMA:
Your Honor, I would object. The witness has answered the question.
MR. TAIKEFF:
That's a specific question to see if if refreshes his recollection
THE COURT: You
may answer.
A I believe it
does. I would have to recall my memory from the statement, sir.
Q I show you
what has been marked Defendant's Exhibit 106, and turning to Page 4, the
first full paragraph from the top.
A (Examining)
Yes, sir.
Q Have you
read the paragraph?
A Well, to
where it says "Jimmy Eagle".
Q Why don't
you read the entire paragraph?
A (Examining)
I have.
Q Now, reading
that, does it actually refresh your recollection as to what occurred on
that day in September, 1975?
A You mean as
far as the interview of Marvin Stoldt, or what happened on June 26th?
Q I am talking
about that portion of the interview of Marvin Stoldt which dealt with the
long distance sighting.
{1359}
A No, it
doesn't.
Q It doesn't
refresh your recollection at all?
A No, it does
not.
Q In reading
the paragraph, would you say that it is factually incorrect?
A Well, that's
what he told me.
Q O.k., but it
doesn't refresh your recollection?
A Not as to
the long distance sighting, it doesn't.
Q When you
wrote this report, your conversation with Stoldt was fresh in your mind,
wasn't it?
A Well, while
he was --
Q
(Interrupting) Just listen to my question. When you wrote the report, when
you wrote that paragraph on Page 4 --
A
(Interrupting) Um-hum.
Q (Continuing)
-- was your conversation of that day in September fresh in your mind?
A When I did
the report, it was, yes.
MR. ZAIKEFF:
O.k. I offer that paragraph as a past recollection recorded.
MR. SIKMA:
Your Honor, I would object for the same reason I objected earlier. It is,
No. 1, hearsay; secondly, there is no indication here that it is anything
that is inconsistent with what has been testified to here.
MR. TAIKEFF:
He says he has no memory, so it {1360} couldn't be inconsistent, and it is
a past recollection recorded which is an exception to the hearsay rule.
MR. SIKMA:
That is my objection, your Honor.
THE COURT:
Would counsel approach the bench?
(Whereupon,
the following proceedings were had at the bench:)
MR. TAIKEFF:
The Government has a copy of it, your Honor. I gave it to them.
MR. SIKMA:
Which paragraph are you talking about?
MR. TAIKEFF:
The first full paragraph on the page.
MR. SIKMA:
This one (indicating)?
MR. TAIKEFF:
Yes.
(Court
examines document.)
THE COURT:
Which paragraph were you talking about?
MR. SIKMA:
This paragraph (indicating). I don't understand why it is necessary. It is
perfectly consistent with what this witness testified.
MR. TAIKEFF:
He has no memory of this event. The only way we can impeach the testimony
is in getting the past record of what he said.
May the Court
read it?
MR. SIKMA:
Your Honor --
(Court
examines document.)
THE COURT:
What is your objection?
MR. SIKMA:
Your Honor, this is Stoldt's statement. {1361} They are trying to put in
Stoldt's statement through this witness. That's hearsay, and that is not
an exception to the hearsay rule.
MR. TAIKEFF: I
am not offering it for the truth. I can test the truth of it. It couldn't
possibly be hearsay. I am putting it in to show it was written in a
report. It is an utterance.
MR. SIKMA:
That's irrelevant.
MR. TAIKEFF:
That's irrelevant?
Your Honor,
read 105 for comparison so that perhaps your Honor would understand the
relationship between the two and why counsel feels it is important to
introduce these two reports into evidence.
(Court
examines document.)
THE COURT: I
will reserve my ruling on this.
MR. TAIKEFF:
Thank you, your Honor.
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
Q (By Mr.
Taikeff) I am going to put before you Defendant's Exhibit 106 which is the
document containing the paragraph I had you look at a moment ago.
Now, that
exhibit is a report, isn't it?
A A report?
Q Yes.
A No, sir.
{1362}
Q What is it?
A It is a form
as a result of an interview with an individual. Q Well, is it a
memorandum?
A No.
Q Is it a
record of the FBI?
A Is it a
record of the FBI?
Q Yes, a copy
of an FBI record?
A Yes, sir.
Q Does it
relate events which occurred or which purportedly occurred?
A In regards
to one person, yes.
Q O.k. Is the
report based on information transmitted by a person with knowledge of
those events?
A Yes, sir.
Q And is that
report kept in the ordinary course of the regularly conducted business
activity of the FBI?
MR. SIKMA:
Your Honor, I would object as this is calling for a legal conclusion.
MR. TAIKEFF:
Your Honor, I am asking factual questions as foundation pursuant to Rule
803, Subsection 6, of the Federal Rules of Evidence.
MR. SIKMA: I
think the Rule has been held --
MR. TAIKEFF:
(Interrupting) I am adding an additional legal basis for the introduction.
{1363}
THE COURT: You
may complete the foundation.
MR. TAIKEFF:
Thank you.
Q (By Mr.
Taikeff) I think I asked you whether that document is and was kept in the
course of the business activities or law enforcement activities of the
Federal Bureau of Investigation?
A Of the
Federal Bureau of Investigation, yes.
Q And was it
the ordinary and regular practice of the Federal Bureau of Investigation
to make such documents as that 302?
A Yes, sir.
Q And you have
had how many years of experience with 302's?
A Over six,
sir.
MR. TAIKEFF: I
additionally offer that paragraph, your Honor, pursuant to Rule 803,
Subdivision 6, of the Federal Rules of Evidence.
MR. SIKMA:
Same objection, your Honor, pursuant to the cases cited earlier.
THE COURT: The
ruling is reserved.
Q (By Mr.
Taikeff) I showed you an affidavit before of your own which was marked
Defendant's Exhibit 92 for identification. Do you remember that?
A I remember
the affidavit, sir.
Q And that
affidavit was filed in connection with proceedings in Canada, was it not?
{1364}
A Extradition,
yes, sir.
Q In an
attempt to persuade the Canadian Government to send Mr. Peltier to the
United States to stand trial here?
A That's
correct.
Q And when you
signed your affidavit, you knew that the affidavit was going to be used in
that connection, did you not?
A No, sir, I
did not.
Q Did you read
your affidavit before you signed it?
A Yes, sir.
Q And may I
assume from that that you both looked at the exhibits which were attached
and read the words which were typed on the page?
A Yes, sir.
Q And I assume
that English is your first language?
A Yes, sir.
Q Well, would
you be kind enough to look at Defendant's Exhibit 92 and tell me whether
or not it clearly in the English language says what it is all about at the
top?
A Well, it
says what it is about, yes.
Q Didn't you
read that?
A Yes, I did.
Q All right.
Did you not understand what you read?
A I understood
what I read.
Q So then you
knew that your affidavit was going to be used in connection with an
extradition proceeding in Canada?
{1365}
A I stated
before I did not know it was going to be used for extradition. I knew it
was used in connection with the extradition. Q That's what I asked you.
A All right.
Q Now, did you
know that Marvin Stoldt submitted a comparable or similar type of
affidavit under the same circumstances for the same purposes?
A No, sir, I
did not.
(Counsel
confers.)
Q (By
Mr.Taikeff) Is it a fact or is it not a fact that Marvin Stoldt did not
look through binoculars, but he looked through your rifle with the
telescopic sight?
A That's not
true.
Q Did he have
a rifle with a telescopic sight on that day, June 26th, 1975?
A Not to my
knowledge, he didn't.
Q You didn't
see one, did you?
A That he had?
Q Yes.
A No, sir.
Q Do you know
whether that afternoon at or about the time of the long distance sighting,
he had access to a rifle with a telescopic sight?
A I do not
know that.
{1366}
Q Now, sir, I
ask you this: Did there ever come a time in 1975 when Marvin Stoldt came
to you and said, "I now realize that I didn't see just Jimmy Eagle, that I
saw both Jimmy Eagle and Leonard Peltier"?
A Yes, sir.
Q And do you
know whether there was any connection between his saying that and the
extradition proceedings in Canada, if there was any such connection?
A I have no
idea, sir.
Q How large
was the room that you were in with Mr. Stoldt on the afternoon of June
26th, 1975, the room that had the window that he was looking through, when
he allegedly saw four people running?
A It wasn't
very big.
Q 10 by 12?
A Possibly
maybe even a little smaller.
Q Besides you
and he, was there anybody else in that room?
A Not that I
recall.
Q Was it
decided on or about June 30, 1975, between you and your colleagues, that
Bob Robideau, Dino Butler, Jimmy Eagle and Leonard Peltier killed the
agent?
A No, sir.
Q Did you ever
have any contact with a person by the name of Marvin Bragg?
A Yes, sir.
{1367}
Q Did you ever
interview Marvin Bragg?
MR. SIKMA:
Your Honor, I object to this as totally irrelevant and beyond the scope of
direct examination.
THE COURT:
Sustained.
MR. TAIKEFF:
May I adopt the witness as my own?
MR. SIKMA:
Your Honor, I would still make an objection to this as totally irrelevant.
THE COURT: In
view of the objection that it is irrelevant, it is beyond the scope of the
direct examination, and therefore, the objection is sustained.
If it is
determined to be relevant, it would be a part of the Defendant's case.
MR. TAIKEFF:
All right. In that case, your Honor, I am finished with my cross
examination. I would like the witness held to be a defense witness.
MR. SIKMA: May
I have just a moment, your Honor?
(Counsel
confer.)
{1368}
MR. SIKMA:
That's all I have of this witness at this time, Your Honor.
MR. HULTMAN:
May we approach the bench, Your Honor?
THE COURT: You
may.
{1369}
(Whereupon,
the following proceedings were had at the bench:)
MR. HULTMAN:
Your Honor, the next witness which the government will call is Norman
Brown. It's my understanding that he wishes through Counsel, I haven't
talked to Counsel, but it's my information that he wishes some proceeding
out, this is the wish of Counsel, his Counsel, now, not the wish of the
government, that he have a proceeding outside of the courtroom and the
jury to determine that he does have immunity. And he's making that request
and that's why I bring it to the Court's attention at the side bar here
prior to the witness actually coming in and we're starting my examination.
THE COURT:
What has happened?
MR. HULTMAN:
Well, Your Honor, immunity has been granted and I'm ready to proceed. All
I'm saying to the Court is this is a request of his Counsel. I'm just
relaying that information.
MR. TAIKEFF:
May I ask a question? Was another judge the one who conferred the immunity
to the request of the government?
MR. HULTMAN:
We are at this particular point where evidently he's requesting the one
question right now. There is sometimes an instance where in the minds of
an individual they have received immunity for that testimony at that given
{1370} time. Now we're at --
THE COURT:
What Mr. Taikeff is asking, what judge has --
MR. TAIKEFF:
Judge McManus?
MR. HULTMAN :
I 'm not saying. He has been granted that immunity in communication and we
have so communicated this.
MR. TAIKEFF:
In other words, you have been authorized to ask the Court to confer it?
MR. HULTMAN:
That's correct.
MR . TAIKEFF:
We'll accept the government's representation as far as that's concerned
and have no objection if Mr. Hultman --
MR. HULTMAN:
The point is, at this point it's not the government or the defense that's
raising the issue, it's the lawyer of the witness.
MR. TAIKEFF: I
understand. My impression is it is the government has the power to ask the
Court to confer him.
MR. HULTMAN:
That's correct.
MR. TAIKEFF:
If you say you will authorize pursuant to statute, we don't have --
MR. HULTMAN: I
have a letter.
MR. TAIKEFF: I
don't have to see the letter. You know your word is acceptable to me. If
you say so, we will accept the authorization as existing and I trust the
judge {1371} will confer immunity pursuant to the statute, Title 18, and
we should proceed.
MR. HULTMAN: I
have shown that letter also to Counsel for the witness so that he likewise
had --
MR. TAIKEFF:
Apparently the witness wants the judge to tell him he does have immunity.
MR. LOWE: Do
that at side bar. Can't the judge call him to side bar and tell him?
MR. HULTMAN:
What I'm saying, I'm not in any way binding a witness and Counsel, I'm
merely bringing it to the Court's attention so the Court will know before
I call the witness Counsel has made this request. That's all I'm doing is
carrying a message from Counsel for the witness to the Court. That's my
only purpose, Your Honor. I am ready to proceed but I don't want to
proceed, I want to proceed only in good faith with Counsel for the witness
being able to accomplish what he wishes to accomplish.
MR. TAIKEFF:
Maybe the jury can remain in place and Counsel and the Court can retire to
chambers.
THE COURT: I
was thinking we would retire to chambers for about, shouldn't take more
than ten minutes.
MR. HULTMAN:
Would you, Ralph, notify them downstairs, the witness and his Counsel to
come to chambers.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
{1372}
THE COURT : It
will be necessary for the Court then and Counsel to recess to chambers for
just a few minutes but because the time that may be required is unknown
and somewhat indefinite, the Court will declare a recess at this time
until 2:50. In other words, we'll take a 15 minute recess.
(Whereupon,
the following proceedings were had in chambers in the presence of Counsel
and the defendant being present in person:)
MR. HULTMAN:
Your Honor, I would raise the question whether or not this proceeding is
one to be in the presence of Counsel. It has to do with a witness and that
witness' right. I'm raising this issue that it ought to be explored by the
Court and the attorney with that witness. I'm not in any way indicating
that I have any feelings one way or the other but I think it's an
appropriate matter.
THE COURT: I
think it's properly an ex parte proceeding but the side that desires to
offer the testimony of the witness and the witness and his counsel.
MR. HULTMAN:
That is my point, Your Honor, and I would object to the defendant himself.
MR. TAIKEFF:
The only objection I have, I found the couch very comfortable but we're
ready to leave.
(Whereupon,
the following proceedings were had in chambers in the presence of counsel
for the government, David {1372} Maring, counsel for Norman Brown, and
Norman Brown.)
MR. MARING:
Good afternoon, Judge.
THE COURT: Mr.
Brown, you may have a seat. Mr. Maring, you may state your petition or
position.
MR. MARING:
Your Honor, when I talked to the U.S. attorneys this morning I was
informed and have a copy of a letter from Mr. Richard Thurnbore, I'm not
sure how to pronounce his last name, assistant attorney general, criminal
division, indicating that the U. S. attorneys in this matter have the
authority to ask the Court for an order granting Mr. Norman Patrick Brown
immunity to testify in this particular matter and related ancillary
proceedings. It's my understanding under the rules that, excuse me, under
the statute 18, U.S.C. Section 6,003 (b) that the Court can grant this
immunity prior to the defendant being, or, excuse me, to the witness being
asked questions and refusing to answer if the Court is aware that the
witness would intend to invoke his fifth amendment privilege.
I would inform
the Court at this time that Mr. Brown, if the questions were of a nature
that would cause him to tend to incriminate himself, and we feel those
questions will be of that nature, that he would invoke his fifth amendment
privilege and, therefore, I'm asking the Court for an order at this time
that he be granted immunity from prosecution for any testimony that he
gives today on the witness stand or any {1374} ancillary or related
proceedings connected herewith, Thatt the nature of my motion.
THE COURT:
What is the position of the United States attorney?
MR. HULTMAN:
Your Honor, this request for immunity has been made by my office and it
has been, I received a letter which I have provided with Counsel and which
I would give to the clerk and have him make a copy of same for the record.
I would like to have the original back, if I could. That authorization
request by my office has been officially and procedurally acted upon and
that letter then in turn is the confirmation that that request of my
office has been granted by the head of the Criminal Division of the
Department of Justice and that is letter which I have now handed to the
clerk to be made a part of the record here, Your Honor. If that is the
request of Counsel now at this time for the witness, before the witness
does testify, I certainly would make that request and join in that request
at this particular time.
MR. MARING:
That is our request.
THE COURT: And
you are requesting immunity from the Court? MR. HULTMAN: Yes, Your Honor.
THE COURT:
Very well. It is ordered that pursuant to 18 United States Code {1375}
Section 6003 (a) and on request of the United States attorney, in the case
of the United States versus Leonard Peltier, Norman Patrick Brown is
granted immunity from criminal prosecution arising out of any testimony or
other information which he may be compelled to give in this case and no
testimony or other information given by him may be used against him in any
criminal case except a prosecution for perjury, giving a false statement,
or otherwise failing to comply with the order. The order of the Court is
that the witness is compelled to testify, to answer questions and testify
in this case.
Have I left
anything out?
MR. HULTMAN:
No, Your Honor. There are some things I would like to address to the Court
--
MR. CROOKS:
Your Honor, perhaps before the subject is changed, perhaps the Court could
explain to the witness in a little more laymen's terms the meaning of the
last part of that so that, I realize the Court is reading from the Statute
which is very legalistic so the witness understands the limitation on it.
THE COURT: Mr.
Brown, you are required to give testimony in this case. However, because,
and I'm just explaining it to you in general terms, because you were
apparently involved in this incident, normally any statement that you
might give could be used against you as a basis for prosecution. Under the
order of this Court compelling you {1376} to testify and compelling you to
give up your right not to testify, you cannot be prosecuted on the basis
of any information that you give. You are required to answer the questions
that are asked of you and you are required to answer them truthfully. You
are further required to remain within the jurisdiction of this Court,
remain here until I have dismissed you, until I have released you. So if
your testimony is not completed today you will have to stay over till
tomorrow.
NORMAN BROWN:
Okay. Okay.
THE COURT: You
understand that?
NORMAN BROWN:
Yes.
THE COURT: You
understand if you did not testify truthfully you could be prosecuted for
testifying falsely under oath, but that has nothing to do with the events
that took place at Oglala.
NORMAN BROWN:
Yes.
THE COURT: And
if you should not stay here, if you should, for example, leave before I
released you from these proceedings, you could be prosecuted for that. You
do not have immunity from those two things. You do have immunity from any
acts that you may testify to relating to this June 26, 1975 incident.
NORMAN BROWN:
Uh-huh.
THE COURT: Now
do you have any questions?
NORMAN: BROWN:
No.
{1377}
THE COURT: Mr.
Maring, is there anything more you feel I should cover?
MR. MARING:
No, Your Honor. I think what you've covered is accurate, as I understand
it, and as Norman Brown and I have discussed it previous to this point in
time.
To clarify my
understanding of what has transpired in the past, I would like to ask the
members of the U.S. attorney's office whether in fact Mr. Brown was
granted immunity on prior occasions when he has given testimony in regard
to this case. That is the understanding that I have.
MR. HULTMAN:
On the record, Your Honor, I don't know officially because I was only in
the case just before it started and Norman and I talked together the night
before the testimony the last time. I told him then myself that very
thing. So that the government would be bound by anything that I would say
to him in that point on. I likewise in the very brief moments that I had
an opportunity which he asked me some questions last evening and I asked
him to ask me any questions. One of them was the matter that we are now
discussing and I said to him that, "Yes, that is my understanding, and I
will make certain that that is such the case on the record." That is the
best response, Your Honor, I can give. I personally did not participate in
any previous immunity officially as such but I represent that the
government has been bound and is bound and will be bound as to anything
that has to do with this {1378} transaction on the basis, of course, with
the limitation that the Court has expressed, the limitation of perjury
were perjury to be committed. That of course is not covered by immunity.
MR. MARIHG:
Your Honor, may I inquire about a couple of other matters?
THE COURT:
Mike, tell Counsel I'm going to extend the recess for an additional ten
minutes and have the jury so informed also. Then we are going to recess
this afternoon at 4:30. We'll go straight through until the end of the
day.
{1379}
MR. HULTMAN:
Your Honor, Mike, could I express one other item that I still think is in
this line because maybe you're going to get two other matters.
Your Honor,
there is one other matter that I think would be appropriate at this time
that the Court might inquire to counsel and to Norman about. Norman asked
me a question among those that he asked me in the short time last evening,
whether or not he would have to ever appear again. Isn't that right,
Norman, that's a question you asked me?
NORMAN BROWN:
(No response.)
MR. HULTMAN:
And I did my very best to explain to him that as far as I am concerned as
the United States Attorney that that is exactly true. But I also indicated
to him, and I would want him to know this in front of the Court, and if he
has any questions that the Court or counsel be able to clarify them, that
I indicated to him that there are some things over which I have no control
in any way as an individual as a person, and I used, I believe an
illustration with Norman that in the event there had to be some other
proceedings ordered by someone to which, concerning this same event, that
someone like another judge might require that he be there, that that would
be something within the law over which I have no control. And that I
wouldn't want him to think that this immunity in any way meant that
because of his immunity here today in this courtroom that that meant that
he had immunity, {1380} that he would never under any circumstances have
to come back again.
And I did my
very best, did I not, Norman, to explain in those words that that was the
situation?
NORMAN BROWN:
Yeah.
MR. HULTMAN:
And if he does have any further question about that I would want that to
be clarified in any way so that he knows exactly what I am doing, and that
what the immunity here means in a very full sense.
THE COURT: I
guess, as I understand what Mr. Hultman is saying, that it's very
improbable that there will be further proceedings, further trials in this
matter after this case. But he is not the person that has the final say in
that respect. But even so there should be, it's possible that you might
again sometime be called as a witness. It's probably improbable at this
time.
However, you
would have the same rights then as you have now, that you couldn't be
prosecuted for, based on any information that you gave.
Now, Norman,
do you have any questions?
NORMAN BROWN:
No.
THE COURT: You
understand you are satisfied?
NORMAN BROWN:
Yeah. I understand.
THE COURT: All
right. Do you, Mr. Maring, have anything more?
{1381}
MR. MARING:
Your Honor, just one or two procedural matters. And number one would be
what position I would take in the courtroom as a member of the audience or
is there another place that the Court --
THE COURT: Is
it your desire to be present during the testimony of this witness?
MR. MARING:
Yes, it is, Your Honor.
THE COURT:
Well, no. I would say that as a member of the bar you should not be seated
in the audience particularly where you are involved in the proceedings. So
you can, there must be an empty chair behind the United States Attorney's
desk, isn't there?
MR. HULTMAN: I
would suggest, Your Honor, so that in no way we show any partiality or any
influence as far as Norman is concerned, that maybe counsel could sit at
the end of the jury, close to the end of the jury box, and that way we
would be entirely separate.
I have no
objection of course to him sitting at counsel table, but I think it would
be very inappropriate; and I think maybe Norman wouldn't like that either.
Is that a fair
conclusion, Norman, for me to draw?
NORMAN BROWN:
(No response.)
THE COURT: Is
there any other place available for Mr. Maring that you can think of,
Mike?
LAW CLERK: He
could probably sit between the marshal {1382} that's attending the jury
and right somewhere between that spot and behind your table I would think.
THE CLERK: I
think that would give him good eye contact with the witness, too.
THE COURT:
Would that be satisfactory?
MR. MARING:
Satisfactory to me, Your Honor.
THE COURT: All
right.
MR. MARING:
One other matter would be that Norman and I have had an opportunity to
converse this morning, and I think that he is very aware of what the
nature of the proceedings and what he's doing.
However, if he
does get confused or would like a short recess, or a moment or two to
confer with me, I'd request that the Court consider that upon being asked
by Mr. Brown for that privilege.
THE COURT:
Norman, if at any time during the questioning you want to confer with Mr.
Maring, you just turn around to me and tell me that you would like to talk
to your lawyer.
NORMAN BROWN:
Okay.
THE COURT: And
I will permit you to do that.
NORMAN BROWN:
All right.
MR. MARING:
That's all I have. Thank you, Your Honor.
MR. HULTMAN:
Your Honor, I just have one other item. {1383} I know the, I know the
religious feeling of the young man because he's expressed it to me on both
of the occasions that I have been with him. And I would like to know,
Norman, whether or not, because of your feelings with reference to the
pipe and your understanding of the oath, whether or not you have any wish
of any kind, or whether it would have any influence on you in terms of the
occasion itself, that you would take your oath on the pipe. Is that
something that is very important to you?
NORMAN BROWN:
Yeah.
MR. HULTMAN: I
had a feeling of this, Your Honor, and that he had indicated a request
indirectly of this in his discussion with me. And that's why I wanted to
bring it to the attention of the Court at this time.
THE COURT:
What is your response to that?
NORMAN BROWN:
The pipe?
THE COURT: We
don't have a pipe.
THE CLERK: May
I make a suggestion in that regard, Your Honor? Rather than to put any
undue influence on the inquiry of the man that gave a dissertation to the
Court, a gentleman by the name of Mr. Peters regarding the pipe, if he
would make a pipe available to me for this instance and I would have it at
the bench when court reconvened.
I guess the
point I'm trying to make, I think maybe place a little bit undue emphasis
if a pipe from the table, {1384} or pipe that's currently in the courtroom
that's used. I just throw that out as my suggestion.
MR. CROOKS: I
might observe, Ralph, that I think the pipe Mr. Peters has bean carrying
is the pipe that's on counsel table.
THE CLERK: I
would not refer to one in his possession but I believe there are other
pipes in the courtroom. That's my understanding at least.
NORMAN BROWN:
I think he wouldn't mind me holding the pipe.
THE COURT: Who
would not mind?
NORMAN BROWN:
Mr. Peters.
THE CLERK:
Would not mind holding that pipe.
THE COURT: No.
He said Mr. Peters wouldn't mind if you held the pipe.
NORMAN BROWN:
Yeah.
THE COURT: You
are talking just about to take the oath, is that what you are talking
about?
NORMAN BROWN:
Or to say to the pipe, like holding it.
THE COURT: But
this is for the purpose of the oath that you are required to take?
NORMAN BROWN:
Yeah.
THE COURT:
You'll just take it to the pipe?
NORMAN BROWN:
Yeah. Just like I'm holding it, but {1385} the pipe would be over here
(indicating).
THE COURT: All
right.
THE CLERK: You
would wish to face the pipe? I will administer an oath to you to the
effect that you swear on the holy pipe that you are about to tell the
truth in all the proceedings in this case, and that would be the end of my
oath.
NORMAN BROWN:
Right.
THE COURT:
Now, would you prefer to hold it, or would you prefer to hold the pipe
when you do that?
NORMAN BROWN:
No. I think we should ask him first what he would say then. If he says
it's all right for me to hold it, then it's that way.
THE COURT:
Well, Ralph, why don't you take care of that?
THE CLERK:
Okay, sir.
May I do it
right now, Your Honor?
THE COURT: Do
it right now.
Does that take
care of everything?
MR. HULTMAN:
Yes, Your Honor.
THE COURT: I
will make a brief explanation to the jury.
MR. HULTMAN:
Yes, Your Honor.
I have nothing
further.
THE COURT: We
will adjourn to the courtroom.
{1386}
(Whereupon,
the following proceedings were had in the courtroom without the presence
of the jury:)
MR. HULTMAN:
Your Honor, I do have a matter to approach the bench with all counsel
before we proceed.
THE COURT: Mr.
Hultman, did you state that you have a matter to take up at the bench?
MR. HULTMAN:
Yes. Could we approach the bench, Your Honor?
(Whereupon,
the following proceedings were had at the bench:)
MR. HULTMAN:
Your Honor, I wanted to do this before anything did arise. I want to make
the position of the Government clear that one, I think the events clearly
indicate that the witness that is now to be examined is clearly a hostile
witness to the United States. I think that goes without even saying.
The fact, for
example, that an interview was granted very readily to counsel of which I
am not privy, and the fact that I have had no such interview at the
request of the witness himself, would indicate --
THE COURT: You
have not interviewed this witness?
MR. HULTMAN:
No. I have not. I have, as I have reported on the record, had a
conversation with him in which there was no discussion of the events
themselves into which the witness will so indicate.
{1387}
MR. TAIKEFF:
We understand from our interview of the witness that when Mr. Hultman
appeared the witness said he wanted counsel. And Mr. Hultman said, quite
properly we wish to note, that if that's what you want, then I must leave
until you get counsel; and the witness told us that Mr. Hultman left
immediately and in no way acted in any improper manner and paid respect to
his request for counsel.
So in fact
there is no doubt about what Mr. Hultman is relating in that regard.
MR. HULTMAN:
Secondly, Your Honor, I would want the record to reflect as again a basis
for the request that I'm making that in chambers a moment ago when this
witness came in the presence of the defendant himself, there was a very
warm and a firm embrace immediately of the witness in crossing the room of
the defendant himself.
MR. LOWE:
There wasn't even any contact made.
MR. TAIKEFF:
You are talking about in the Judge's chambers?
THE COURT: It
was reported to me. I didn't see it.
MR. HULTMAN:
Absolutely.
THE COURT: It
was reported to me by one of my staff that there was a contact.
MR. HULTMAN:
Firm embrace. The minute he walked into the room. I watched it all with my
own eyes.
THE COURT:
Just a moment.
{1388}
Mr. Suby,
would you approach the bench.
(Mr. Suby
approached the bench.)
THE COURT: You
reported to me that there was some kind of a contact between the defendant
and this next witness at the time they both came into chambers. Would you
just state for the record the contact that you observed. You did not tell
me, I don't know what the nature of it was.
MR. SUBY: That
is correct, Your Honor. At the time the witness came in the room he
approached the defendant, they embraced, shook hands. There was an
exchange of words, lasted approximately five seconds or eight seconds or
so, and they parted. And that was the extent of it.
THE COURT:
Thank you.
MR. LOWE: May
I ask something, because I just want to be sure of the time sequence, if
we are talking about the same time frame. Was this about when we went to
leave?
MR. HULTMAN:
No. When the witness came in. The minute the witness came in.
MR. LOWE: The
first time I saw the witness was when we were arising from the courtroom
to go to the room. Was this an earlier time when he came into chambers?
MR. HULTMAN:
No. It was the only -- the defendant was there.
MR. TAIKEFF: I
never saw the witness. I don't dispute {1389} what Mr. Suby saw. I was
just curious for my own place.
MR. HULTMAN:
Plus the fact that there is an immunity matter to start with. There's no
question this individual was there as a witness to participate in certain
events. And for all of these reasons, Your Honor, I think that I ought to
be given a measure of latitude under those circumstances that normally
would not be the case.
He is without
any question a hostile witness if there ever was one.
MR. TAIKEFF: I
would say this, Your Honor, and if he puts a question to him and he
doesn't get any answers which he reasonably expects, and I think elaborate
proceedings are not at the sidebar, because Mr. Hultman will, I'm sure,
act appropriately in that regard, then I think in light of our interview
the content of which we know, but Mr. Hultman doesn't know, it would be
inappropriate for me to resist his application.
So if Mr.
Hultman moves in that direction after he attempts to get certain answers
which he thinks he's entitled to, I think we can go right to it and get
the testimony in.
MR. LOWE: Your
Honor, may I state for the record, because I don't want the Court to think
that I misstated something factually, the Clerk has just advised me that
what I saw was not an embrace or a touching, it was when we were getting
up and we were already walking towards the door. And {1390} the Clerk, Mr.
Hanson, advises that I am correct that there was no touching there. That
the touching that he observed and apparently Mr. Suby observed was while
Mr. Peltier was still seated.
MR. HULTMAN:
Yes. He was seated.
MR. LOWE: And
I was facing the Court, and I simply didn't see that. And that's why I
reported it, and I was astounded that there was any touching.
MR. HULTMAN:
Oh, no, John, he was seated at the couch, and the witness came in and
embraced.
MR. LOWE:
There was no contact made at that time.
MR. TAIKEFF:
All right. Essentially we've agreed with Mr. Hultman, subject to his
effort on one critical issue, to get an answer which he is dissatisfied
with, and I think we would consent to him taking that position with the
witness.
MR. HULTMAN:
My point is without any question, and I'm going to have to do some leading
that normally, for example, I would never have to do with a witness, other
than of this kind and nature. I think counsel understands that.
MR. TAIKEFF: I
don't think that you will go beyond proper limits. We'll try to make only
objections which are appropriate under these special circumstances.
MR. HULTMAN:
Very good. Thank you.
{1391}
(Whereupon,
the following proceedings were had in the courtroom:)
THE COURT: The
jury may be brought in.
(Whereupon, at
3:13 o'clock, p.m., the jury returned to the courtroom; and the following
further proceedings were had in the presence and hearing of the jury:)
THE COURT: I
have two bits of information to give to the jury at this time. One is
that, due to a personal appointment of one of the jurors, the Court will
recess this afternoon for the day at 4:30; and the second point of
information is that the next witness to be called will take the oath in a
little different form than that which is usually administered.
The law as
expressed by the Rule states that before testifying every witness shall be
required to declare that he will testify truthfully by oath or affirmation
administered in a form calculated to awaken his conscience and impresses
his mind with his duty to do so.
The next
witness, because of his religion, has requested that he be permitted to
take his oath on the pipe, and that permission has been granted.
The Government
may proceed.
MR. HULTMAN:
The Government calls Norman Brown, your Honor.
THE CLERK: Mr.
Brown, you do swear on the sacred {1392} pipe that the testimony you are
about to give will be the truth?
THE WITNESS:
Yes.
THE CLERK:
Would you be seated, sir?
NORMAN BROWN,
being first
duly sworn, testified as follows:
DIRECT
EXAMINATION
By MR. HULTMAN:
Q Would you
state to the jury your name, please?
A Norman
Brown.
Q And where do
you live, Mr. Brown?
A Minifarms,
Arizona.
Q And about
how long have you lived in Minifarms, Arizona?
A All my life.
Q Do you have
some brothers and sisters?
A Right.
Q And would
you tell the jury how many brothers and sisters you have?
A Six brothers
and three sisters.
Q Mr. Brown, I
have not discussed the facts of this event with you since the time in open
court, have I?
A No.
Q What is your
birth date?
A March 17th,
1960.
Q So you were
just last week 17, is that right?
{1393}
A Right.
Q And how old
would you have been on the 26th of June, 1975, two years ago?
A 15.
Q How far in
school have you gone?
A Sophomore.
Q Did you ever
have an occasion during the year, 1975, to go from your home at Minifarms
to some other place to attend any meeting of any kind?
A Yes.
Q Excuse me?
A Spiritual
conference in Farmington, New Mexico.
Q And would
you explain to the jury about when this was?
A I don't
know. I don't remember.
Q Do you
remember who it was that you met there and saw there?
A Who? What do
you mean?
Q Any persons
that you knew or recognized?
A Yeah.
Q And would
you tell the jury who it was that you recall specifically that you met
there?
A Leonard.
Q Now, when
you refer to "Leonard", would you tell the jury what his full name is?
A Leonard
Peltier.
{1394}
Q And is he in
the courtroom here today?
A Right.
Q And would
you tell the jury where he is seated here in the courtroom?
A He is seated
over there.
MR. TAIKEFF:
The identification is conceded, your Honor.
THE COURT:
Very well.
Q (By Mr.
Hultman) Had you known Mr. Peltier before?
A Yes.
Q And
approximately how long had you known him?
A About four
years then.
Q And where
was it, if you recall, approximately four years before that you had met
Mr. Peltier?
A Crow Dog
sundance.
Q Was that a
religious ceremony that you attended?
A Right.
Q And how old
would you have been at that time?
A 13.
Q And how did
you go to the ceremonial, Crow Dog's, on that occasion?
A What do
mean?
Q Did you go
by yourself or did you go with somebody?
A Yes.
Q You went by
yourself?
{1395}
A Yes. You
mean four years ago?
Q Right.
A Yes.
Q When was the
next occasion you were with Mr. Peltier?
A In
Farmington.
Q And that's
the time which we are now discussing, is that right?
A Right.
Q All right.
Who else that you had known before did you see in Farmington?
A Dino and
Joe.
Q So the jury
will know, who is Dino?
A Butler.
Q And what was
the next name that you used?
A Joe Stuntz.
Q Joe Stuntz?
A Yes.
Q How long had
you known Dino?
A About four
years too.
Q And where,
Norman, did you meet Dino?
A The trials
in Minneapolis on Banks and Means.
Q And about
how old were you at that time?
A 13.
Q Was the
third person that you just mentioned named Bob, is that correct? I didn't
quite hear. Was it Bob that you {1396} said?
A No.
Q Who was the
third person?
A Joe.
Q Joe, all
right.
A Yes.
Q Who is Joe?
A Stuntz.
Q And how long
had you known Joe Stuntz?
A Four years.
Q And where
did you first meet Joe?
A Sundance
too.
Q And was that
at Crow Dog's also?
A Right.
Q And had you
known Joe then after meeting him at the sundance at Crow Dog's?
A Yes.
Q About how
many times had you been with Joe?
A What do you
mean?
Q About how
many times or occasions had you been with Joe after that?
A Just in
Farmington.
Q All right.
Did you consider Joe to be a very close friend of yours?
A Right.
{1397}
Q Is he a
brother of yours?
A Right.
Q Who else did
you meet at Farmington that you had known before?
A Norman
Charles.
Q Norman
Charles?
A Yes.
Q And where
had you met Norman Charles before?
A Sundance,
Crow Dog's.
Q And had you
had occasions to see him after that?
A Well, just
in Farmington.
Q The next
time was in Farmington. Who else did you see in Farmington that you had
met before?
A That's all.
Q Now, did you
meet some other people for the first time that you continued to know after
being in Farmington?
A What?
Q Did you meet
some new people that you continued to know after Farmington?
A Yes.
Q Would you
tell the jury who those people were?
A Lynn.
Q And when you
say "Lynn", do you know any additional name other than Lynn?
A No.
{1398}
Q All right.
A And Jean.
Q And do you
know the person "Jean" by any other name?
A Bordeau.
Q How old was
Lynn at the time you met her there to the best of your knowledge?
A Oh, about
17, 18.
Q And how old
was Lynn?
A I just said
that.
Q Who was the
other person that you referred to?
A Jean.
Q How old is
Jean?
A I don't
know. I can't --
Q
(Interrupting) Was she a young person?
A Right.
Q A young
lady?
A Yeah.
Q All right.
Who else did you meet at that time that you continued to be with for some
period of time?
A Wish.
Q And does
Wish have another name?
A Yeah,
Wilford Draper.
Q Wilford
Draper. You know him by "Wish", is that right?
A Yes.
Q Is that what
his friends knew him by?
{1399}
A Right.
Q All right.
Who else?
A Mike
Anderson.
Q Anyone else?
A Norman
Charles.
Q Norman
Charles?
A That's all.
Bob Robideau.
Q Bob Robideau.
Had you known Bob before?
A No.
Q The first
time you met Bob Robideau?
A Right.
Q All right.
Would you tell the jury -- did you later leave Farmington and go
somewhere?
A Yeah, went
to Oglala, South Dakota.
Q And do you
remember about what time of the year, 1975, that was, what month
approximately?
A About June.
Q Sometime in
June?
A May.
Q 1975?
A Yeah, about
the second week in June.
Q Now, would
you tell the jury who you left with -- did you leave with any other
persons?
A Yeah, I left
with all the people I named.
Q You left
with the people that you have just named in {1400} response to my
questions?
A Right.
Q All right,
and would you tell the jury how you went, did you go in an automobile --
or automobile?
A Yeah, pickup
with a camper on it.
Q All right,
and who did that belong to?
A The pickup?
Q Yes.
A I don't
know.
Q All right.
A Just got a
ride.
Q Who went in
the pickup with the camper, who were the persons?
A Joe and
Leonard.
Q Was there
anyone other than Joe and Leonard that went in the pickup?
A No, I can't
remember.
Q Who did you
go with -- did you go in that car?
A Yeah, I went
in the pickup, yeah.
Q So you went
with Joe and Leonard?
A Yes.
Q Now, the
other people then basically went in a second car, is that right?
A Yes.
Q And do you
remember what kind of a car that was or a {1401} description of that car?
A Well, it was
an old car. It was a green car.
Q Now, where
was it that -- did you go to a particular place once you got to South
Dakota?
A Oglala,
South Dakota.
Q And where in
Oglala or in the vicinity did you go specifically?
A Jumping
Bull, the ranch.
Q And had you
ever been to the Jumping Bull ranch before?
A No.
Q Had you met
the Jumping Bulls before?
A No.
Q What was it
that you did once you got to Jumping Bulls?
A Got some
tents and set up a place where we could stay.
Q And did the
others that you have mentioned also participate and help you, and did you
help them?
A Right.
Q I don't know
whether I asked you specifically about Mike. Had you known Mike for quite
some time?
A Yeah.
Q How long
about -- when did you first meet or know Mike?
A About seven
years ago, eight years ago.
Q And that's
Mike Anderson?
A Right.
Q That I am
referring to and you are responding to, right?
{1402}
A Right.
Q Where was it
that you first met Mike Anderson?
A I can't
remember where, but I met him a long time ago.
Q Would you
know just generally where, for example, in what state?
A Oh, yeah,
Arizona.
Q All right,
and does he come from the same tribe or nation that you do?
A Right.
Q And do any
of the others that you have mentioned come from the same tribe or nation?
A Right.
Q And which
ones or ones would that be?
A Wish and
Mike. Wish, be just Wish and Mike.
Q Wish, Mike
and you come from that nation then?
A Right.
Q All right.
What was the reason for setting up a camp at Crow Dog's?
A Crow Dog's?
Q I am sorry,
at Jumping Bull's, I am sorry.
A We had no
other place to stay, no room in the houses, and I don't know, just put up
some tents.
Q I want you
to turn around and look for a moment or two at what has been marked and
entered as an exhibit in this case, Government's Exhibit No. 71; and ask
you whether or not you {1403} recognize the general scene that's portrayed
in that Government exhibit?
A What?
Q Have you
previously seen a map of this kind and nature before, Norman?
A Yeah, right.
Q Now, I want
you to look at it, and then I want to ask you whether or not you
understand the area, the place that that represents?
A Right.
Q And would
you tell the jury what it is or where it is?
A It is right
up there (indicating) where it says "tents".
Q Is this
generally a map of the Jumping Bull ranch that you talked about a minute
ago?
A Yeah.
Q All right.
{1404}
Q And on that
map can you show the jury where it was that you set up the tents that you
have mentioned? There is a pointer and maybe that mxght be of a little
help and assistance.
Would you
point out to the members of the jury where the tents were set up.
A
(Indicating.)
MR. HULTMAN:
Let the record show that the witness pointed out the area on Government's
Exhibit 71 which is portrayed there as "Tents."
Q (By Mr.
Hultman) How many tents were set up at that time Norman?
A There was
five tents.
Q Is that an
approximation on your part?
A No. About
six. No. Five. I don't know. Five or six.
Q Would you
tell the jury starting with yourself who it was that lived in a particular
tent. It was the same people, was it not, that came, that you went on the
highway with from Farmington to live in the tent area generally speaking?
A Yes.
Q Tell the
jury, first of all, what tent you lived in and with whom, if anyone?
A It was that
box tent.
Q Did anyone
stay with you in the box tent or you with them?
A Yeah.
Q Would you
tell the jury who those people were.
{1405}
A I can't
remember.
Q Maybe if we
talk about some of the others for a minute it might help.
Was Wish in
the tent area when you first set up the tents?
A Yeah.
Q And did he
stay there in the tent area itself all the time you were there?
A No. I don't
think so.
Q Did Wish
leave at some time, as far as being right in the tent area that we're now
talking about, did he go sleep some other place?
A Yeah.
Q Do you
remember where that was?
A That was
around Jumping Bull's place there at the housing.
Q And was that
a tent in which he set up and he slept by himself, is that right?
A Yeah.
Q Do you know
why Wish left the tent area and set up a tent of his own out by Jumping
Bull's house?
A At that time
I didn't but now I do
Q You know
from your own knowledge?
A From reading
the papers now I know.
Q Well, I
don't want you to respond to anything you may have {1406} read.
A You mean
then?
Q Yes.
A No, I
didn't.
Q All right.
A No.
Q Would you
tell the jury a bit or two about Wish Draper. Was he a person who handled
guns?
A No.
Q What kind of
a person is Wish Draper, as you've known him?
A He's quiet
and stays to himself. That's about all.
Q Now do you
remember who stayed in any other tents, for example, let's talk about Dino
for just a moment. In what tent and with whom did Dino stay down in the
tent area?
A Stayed in
his teepee.
Q In a teepee.
Was there anybody that stayed with him?
A Yeah.
Neelock.
Q Now were
there any other tents that you recall that certain individuals stayed in?
A There is a
little pup tent.
Q Was it an
orange pup tent?
A Yeah. It was
orange. It was Mike and Jimmy stayed there.
Q All right.
Mike and Jimmy stayed in the orange pup tent. Who is Jimmy? Do you know
him by another name, additional name?
{1407}
A Jimmy
Zimmerman.
Q Jimmy
Zimmerman.
And how old at
that time was Jimmy Zimmerman at the time we're talking about in 1975?
A 11, 12.
Q
Approximately 11 or 12 years old?
A Right.
Q Was he close
to the person he stayed with?
A Yeah.
Q Does this
help in any way for you to remember who it was that you stayed with?
A In the green
tent. In the orange tent, too, yeah.
Q Who stayed
in that tent?
A Which tent?
Q In the
orange tent we're still talking about. Did anybody else stay in the orange
tent?
A Yeah. Mike
and Jimmy.
Q Was there
anybody else other than Mike and Little Jimmy?
A There was
me. You know, that's, I slept where, I don't know just, I stayed with Jim
some nights and some nights I'd stay in another tent. Like that.
Q All right.
Did Leonard live down in the tent area?
A No.
{1408}
Q Where did he
stay?
A In one of
the houses up here.
Q Do you
remember which one of the houses up there? Maybe I could ask you with a
pointer to show the jury by each house, Norman, would you start here on
this side and tell the jury and you point out the first house on the
right-hand side. Do you remember, there is a green house on the right-hand
side?
A Yeah.
Q Tell the
jury who it was that lived in the green house.
A Ivis and
Angie Long Visitor.
Q Do you
remember what the next house over was then?
A Yeah. It was
--
Q Maybe there
was a shed of some kind in between.
A Yeah. There
was a shed.
Q Did anybody
live in the shed?
A No.
The next house
is Jumping Bull's live there.
Q Do you
remember what color a house that was?
A It was
white.
Q What kind of
white, was that sort of the largest house of all of them in the area?
A Yeah.
Q That's where
Mr. and Mrs. Jumping Bull lived, is that right?
{1409}
A Yeah.
Q And was
there another house then beyond where the Jumping Bulls lived?
A Yeah. Was a
log house.
Q And would
you point that house out to the jury so that the jury can see.
A
(Indicating.)
Q And who was
it that lived there?
A Dennis
Banks.
Q Now is there
another house then or a building of some kind still beyond the log house?
Is there a house of some kind or a building over here?
A Right.
Q Was there
anybody that lived in that place?
A No.
Q What was
that? Do you know what that was, that building, at all?
A No.
Q Now down
here to the, where I am now pointing is also on Government's Exhibit 71, a
marking and some letters that refer to a residence. Do you remember who
lived there?
A I knew it
was Dusty lived there.
Q Was Dusty
related in any way to anybody that you knew?
A Yeah.
Jumping Bulls.
Q And was
there a lady that, did his wife live in that {1410} residence, too?
A His wife?
Q Did he have
a wife, Dusty?
A No.
Q Was there
anybody else that lived there in that residence besides Dusty?
A Yeah. But I
don't know the names. I saw the people around there.
Q Do you know
how many people live there besides Dusty?
A About three
other people I guess.
Q Now where
was it that Leonard lived then up in the houses?
A I think it
was that log cabin.
Q He lived in
the log cabin.
Now what was
it that you did during the time up until the 26th of June, the day when
some events happened? What did you do during that period of time generally
from day to day and during the weeks that you were there? What did you do?
A Chopped
wood, hauled water and pulled security.
Q Who was it
that gave you any instructions as to pulling security?
A Well,
Leonard asked me if I wanted to pull security. He didn't tell me or
nothing, he said, "Do you want to," and I said, "Yeah. I'll pull
security."
Q Now what
would you do when you pulled security?
A I just
walked around the camp and looked out for the roads, {1411} watched the
cars and see how everybody is. I'd watch the camp, you know.
Q Were you
armed?
A Yeah. And
what kind of an arm would you take on those occasions?
A .22.
Q And did you
take ammunition?
A Yeah.
Q What did you
do at other times that you weren't involved in security? What did you do
other times?
A Hauled
water.
Q And chopped
wood, is that right?
A Right.
Q You've named
the same people who came from Farmington, or you came from Farmington
with. Was there anybody else during the time that you lived in the tent
area that lived in the tent area for any period of time other than the
ones that you've mentioned?
A No. Just --
Q IF there was
you don't recall, is that a fair answer?
A Yes. Yes.
Q There wasn't
anybody else that lived there for any extended period of time, is that
right, that you know?
A No.
Q What would
the others do that, let's talk about the men {1412} for a little while,
the men and the boys. What would the boys do other than security during
the time that you were there? How would you spend your time?
A What?
Q How did you
spend your time, the boys, the young men that you have referred to?
A Like set up
camp, cut wood for the tents and, you know, haul water for the camp.
Q What did the
older men do during this period of time, Leonard and Dino and Bob?
A They were up
there in this housing. I don't know what they done. I mean, what they did.
Q Were you at
various times in and out of the houses there on Jumping Bull's ranch?
A Yeah.
Q Were you
ever in the log house?
A Right.
Q Tell us what
it was that you saw on occasions when you were in the log house.
A .30.30.
Q When you
refer to .30.3O, would you explain to me and to the jury what it is that
you're referring to.
A Well, it's a
rifle. There is a lever on the bottom that you move back and forth. You
cock it.
{1413}
Q Now is this
description you're now giving something that you saw and you observed and
you know from your having seen it or something that somebody has told you?
A What?
Q I'm simply
asking you whether or not an FBI agent or myself has told you that some
gun that you saw at that time was a .30.30.
A No.
Q IT's because
--
A Yeah.
Q -- you
yourself have that knowledge, is that right?
A Right.
Q And you had
it back at that time?
A Yeah.
Q Did you see
any other weapons in the log house?
A Yeah.
Q Would you
tell the jury what other weapons as you knew them and you observed them
and not what somebody else may or may not have told you. What other
weapons did you see in the log house during the time that you were there?
A There was
one that looked like an M-16.
Q Now you say
it was one that looked like an M-16. Did I ever tell you that a weapon of
any kind looked like an M-16?
A No.
Q Tell the
jury how it is that you are saying to them in {1414} response to my
question that a weapon you saw in the log house while you were there
looked like an M-16. Where did you first hear of an M-16?
A Radio. You
know, news, pictures.
Q So that when
you use the word "M-16," this is something that you knew back at the time
you saw the weapon, is that right, from news or TV or whatever it is?
A Yeah.
Q And it isn't
because anybody from the FBI or the United States attorney it was an M-16?
A No.
Q Now do you
know whether or not it was an M-16?
A No.
Q Would you
explain to the jury specifically what the object, the weapon looked like.
Describe it to the jury for them, if you can. What color was it, for
example?
A Dark color.
Q And do you
remember anything else about it?
A Had a handle
on the top.
Q Do you
remember anything else about it?
A Clip on the
bottom.
Q Do you
remember anything else about it?
A That's all.
Q Did you see
that weapon or a weapon of that kind on more than one occasion while you
were there at Jumping {1415} Bull's? Did you see it more than just the
time in the log house?
A Yeah. I saw
it at that time.
Q Who did you
ever see with that weapon?
A You mean who
did I see? Leonard.
Q With
Leonard?
A Yeah.
Q I'm going to
show you now what has been marked as Government's Exhibit 34AA and ask
you, Norman, whether or not the weapon that you have just been describing
is the one which is of a general type and looks and description of the
kind that you just told the jury. Was the weapon that you have been
describing to the jury one that looked like this?
A Yeah. Right.
Q So that I
might be very clear and not mislead you or in any way --
A Yeah.
Q -- ask you
something that you don't understand, you understand and know the
difference between, do you not, something that a weapon that looks like
one different from one you know exactly is the one, is that right? Do you
understand there is a difference between that?
A I don't
understand you.
Q All right.
You don't know
whether or not this weapon here is the {1416} one that you saw up there at
all, isn't that right?
A Right.
Q It's just
one that looked like it?
A Yeah. It
looked like it.
Q Did you see
any other guns in the log house?
A No. I don't
think so.
Q Did you see
any other guns in any of the other houses during this time, short time
that you lived there in June?
A No. Not in
any of the houses.
Q Did you see
any guns in the tent area?
A Yeah.
Q Would you
explain to the jury what guns you saw in the tent area during the time
that you lived there.
A Well, I saw
three rifles inside the tent where we kept our food and, you know, stuff
like that.
Q And would
you explain to the jury, let's take them just one at a time and I want to
ask you want it is you remember about each one of them in terms of telling
the jury to the best of your remembrance what they looked like.
A It's a
rifle.
Q What do you
remember about a rifle?
A Bolt action.
Q It was a
bolt action?
A Right.
Q Do you know
the caliber of weapon?
{1417}
A No.
Q Do you know
the difference between a .30.30 and a .22 for example?
A Yeah.
Q Did you know
at that time the difference between a .22 and a .30.30?
A You mean did
I know if that was one or not?
Q Yes.
A I don't
know. I just saw it. No. I don't think so, you know. If I saw it I'd know
what it was.
Q But you
don't recall now specifically what it was?
A Yeah.
Q But it was a
rifle, is that right?
A Right.
Q Now what was
the second weapon that you recall having seen there in one of the tents?
The food tent I believe, as you described ft, right?
A Yeah.
Another rifle.
Q And would
you describe to the jury what that rifle looked like.
A Well, it was
the same as the other one. Bolt action.
Q Now would
you describe to the jury what bolt action means. Is this something you're
describing you knew at that time?
A Right.
{1418}
Q Tell us what
it is you mean by bolt action, that you remember a weapon that was bolt
action.
A Well, it
moved from the side like this, you know (indicating). I don't know how to
explain it, you know.
Q Well, is it
one that you have to pull the bolts back?
A Yeah. Pull
it back; yeah.
Q In order to
fire it again, is that right?
A Yeah. That's
right.
Q So there was
a bolt action rifle there?
A Yeah.
Q That's the
second one?
A Yeah.
Q What was the
third one that you recall?
A It was like
the other two.
Q It was like
the other two?
A Yeah.
Q Do you
remember seeing any other weapons of any kind until the day of the 26th in
the tent area?
A No.
Q Do you
remember having any training or any sessions with people that showed you
how to use a weapon of any kind while you were there in the tent area at
Jumping Bull's?
A Yeah.
Q Would you
explain to the jury who was there at that time.
A Me and
Norman Charles.
{1419}
Q Did you ever
while you were there fire the black weapon that I showed you a little
while ago that you referred to as looking like an M-16?
A No.
Q I want to
take you now to the evening of the, afternoon or evening of the 25th of
June. Do you remember that day what you were doing, what you did that day
or that evening?
A That night;
yeah.
Q Yes.
A Pulled
security that night. June 26.
Q And did you
talk to anybody before you pulled security?
A Yeah. It was
Wish. I think it was Wish. Wish or Mike. One of them.
Q Do you
remember any event of any kind during that period of time?
A I think it
was Wish, he told me that, it was Mike, it was one of them. He told me
that, it was either Wish or Mike, that they were hitchhiking to Oglala and
he got picked up by FBI and took him to Pine Ridge. They questioned him
and they said somehow a clip being taken away from Norman Charles and
that's what he told me. And then they brought him back.
Q Do you
remember talking to Norman at all that evening?
A Yeah. I
think so. Yeah.
Q Did he
indicate anything or do you recall anything about a possible conversation
that you might have had with Norman {1420} that night about the events
that you're talking about?
A Yeah. He
told me that he took the clip from him. The clip (indicating).
Q Did he
indicate what kind of a clip it was? I notice you're forming your hands.
Was that as you remember what the clip looked like?
A Yeah.
Q Would you
indicate to the jury the general shape of the clip that you remember being
talked about at that time?
A About this
big (indicating).
Q Now you
didn't see the clip at that time, is that right?
A Right.
Q That's as
you best recalled the discussion concerning it, is that right?
A Right.
Q You pulled
security that night you said. Were you on security all night?
A Yeah. From
about 8:00 to 10:00. It was, I think it was mostly the night, most of the
night.
Q And would
you tell the jury what specifically you did that night during the time
that you pulled security? Tell us where you went and what you did.
A Well, like
just walked around camp and looked, you know. Just walked around and see
how everything was because, reason why we had security was because we were
afraid of the goons.
{1421}
Q Had you ever
seen a goon?
A Yeah.
Q When did you
see a goon?
A We passed
one and saw two cars and they were inside the cars, two cars and the
goons.
Q Is that the
only time you saw a goon?
A Yeah.
Q Did you ever
see a goon down at Jumping Bull's property at all?
A No. You mean
before June 26th?
Q Yes. That's
what I'm referring to.
A No.
Q At the times
that you were at, who was it that lived in the green house, the first
house that you referred to as the green house? Do you remember who lived
there during hat period of time?
A Ivis and
Angie Long Visitor.
Q Were you in
and out of there, that house, during the time that you were there in June?
A Yeah.
Q Did you ever
see any goons at any time when you were there?
A No.
Q Were you in
and out of Jumping Bull's house while you were there?
A Yeah. Just,
sometimes. Take the water, chop wood for him.
{1422}
Q Did other
people come and go at times that you saw at the Jumping Bull's?
A Yeah. Some
people came, some left.
Q Did you ever
see any goons at Jumping Bull's?
A No.
Q From what
you've already testified you had been in the log house on occasions, is
that right?
A Yeah. Log
house.
Q Did you ever
see any goons when you were at the log house?
A No.
Q When you
were over at, I don't recall the name of the gentleman that you referred
to over at this residence. What was his name again you referred to?
A Dusty.
Q Dusty. At
the times you were over at the house where Dusty lived, did you ever see
any goons over there?
A No.
Q So is it
fair for me, did you ever see any goons down in the tent area?
A No.
Q Is it fair
for me to conclude, Norman, that you never saw up to the 26th, that's the
time you said to me a minute ago, any goons at all in the Jumping Bull
property area?
A No.
Q And the only
time you saw a goon was this one time you {1423} a goon was this one time
you referred to?
A Yeah. Goons.
Q Now what did
you do in the morning when you got up in the morning on the 26th of June,
1975?
A I got up and
Jim was up and Jean and Lynn were up and Jimmy was there, too. The girls,
Jean and Lynn were cooking. Ready to have, I think it was lunch or
breakfast. I don't know what time it was.
Q Would you
tell the jury so that they might know, how many girls or women were in the
camp?
A There was
three.
Q There were
three. And would you for the jury's sake tell the jury again who those
three were.
A Lynn and
Neelock and Jean.
{1424}
Q All right.
Would you tell the jury approximately how old Lynn was?
A About
seventeen, eighteen.
Q And how old
approximately was Neelock?
A About
twenty.
Q About
twenty. And who was the third?
A Jean?
Q Well, you
said Lynn, you said Neelock.
A And Jean.
Q And Jean,
and how old was Jean about?
A I guess
about fifteen, sixteen. Fifteen or sixteen.
Q Fifteen or
sixteen. All right.
Those were the
three women or girls that lived in the tent area and they were there that
morning?
A Yes.
Q Those are
the three you were referring to; is that right?
A Yes.
Q Was Leonard
there that morning?
A No.
Q Did you see
Leonard that morning in the tent area at any time?
A No. Not when
I got up, no.
Q Again, I am
going to ask you, did you see Leonard in the tent area at any time that
morning, in the morning now I'm talking about?
{1425}
A You mean --
I can't remember. I think -- I don't know. I can't remember.
Q All right.
A I might
have, I might have seen him, but I can't remember.
Q All right.
Your best and most honest, that you can't remember; is that right?
A No, I can't.
Q You do
remember other people specifically, though?
A Yeah.
Q All right.
And he didn't live in the tent area, did he, as you said before. He lived
up in the log house?
A Yeah.
Q All right.
Did you see any of the fellows there at any time that morning? Do you
remember when you first got up who the fellows were if any that you saw
there?
A Just Joe and
Jimmy.
Q And by
"Joe," you are referring to Joe Stuntz?
A Right.
Q And Jimmy,
Little Jimmy as you referred to?
A Yeah, Little
Jimmy.
Q Now, I'm
going to, was there any, did you do anything different that morning from
what you had done any other morning? Anything unusual or different?
A We just,
just like regular mornings. Like we just got up like we do every day.
{1426}
Q A11 right.
Now, at a time during that day sometime did you hear some firing of some
kind?
A Yeah. I got
up and Jean and Lynn were cooking and I was talking to Joe for a while on
top of that green car, on the hood sitting there talking.
And we heard
some shots, about eighteen, eighteen, about twenty shots. And Joe said,
"Let's go see, let's go see where the shooting is coming from." So we ran
up to a little hill, and it was coming in the direction of the houses.
So he said,
"Let's go run back and get the guns," he said. So we were running back and
then he said, "There's a gun in the car there, that green car." So I
picked it up. Then I went there. I told Dino. Dino come running out and we
told him that there was shooting up there. And Bob came. Then we met right
outside of camp. Then we told the sisters, we told them, you know, don't
you run out of here because there's shooting going on.
At that time
then we all started running up together. Then we split up, me and Joe went
up to that housing and, you know, Bob went around this way (indicating),
toward where that road is. That's what we done.
Q All right.
Now would you take the pointer and point out to me, or would you tell the
jury first where it was that you heard the shooting, where was it that you
heard the shooting?
A Right over
here (indicating).
{1427}
Q All right.
In the general area you are making a circle of some kind; is that right?
A Yeah. Where
the shooting was coming from.
Q All right.
Now, you didn't see the shooting; is that right, at that time?
A No.
Q You heard
shooting?
A Yeah.
Q All right.
And you say you thought it was about twenty shots, is that --
A Yeah.
Q -- a fair
characterization?
A Right.
Q Would you
describe to the jury what the shooting sounded like since you couldn't see
it, from the first shot that you heard through the approximately twenty?
Would you describe to the jury what it sounded like to you or how it
happened, the twenty shots approximately? Would you describe to them what
it was you heard.
A I didn't
hear just twenty shots like that.
Q That's why I
want you to explain how you did hear them, Norman.
A Well, I
don't know. Just shooting, just -- I heard about five go at one time.
Q You heard
about five at the first; is that right?
{1428}
A Yeah.
Q And would
you tell us, tell the jury what it sounded like, those five.
A Not the
first, but I heard it, I heard those five shots. I heard, first there was
a shot, then a couple shots, and the five shots. Then a couple shots
again, and then shots, and just taking turns like shooting. Just, just one
right after another shots.
Q All right.
And when you stated then that you separated, and I understand that you
indicated that two of you at some point went one direction and two went
another direction; is that right?
A (No
response.)
Q Would you
show me first of all, and show the jury where it was that you first went
when you heard the first shots. You said that you left the tent area and
you went somewhere. Would you start at the tent area and kind of draw
where it was that you went.
A Right over
here to this place (indicating).
Q And when you
are marking that area, let me mark it with a pen so that we will, although
I'm not quite that tall, so that's going to be a little bit impossible for
me, would you point it out again.
A
(Indicating.)
Q Would it be
approximately in the area of the word "Plateau" {1429} that --
A Yeah.
Q This word
right here (indicating)? It would be in that general area; is that right?
A Right.
Q All right.
MR. HULTMAN:
Let the record show that the witness was pointing out an area where there
is the word "Plateau" and it's the only word "Plateau" in the upper
right-hand corner, or right-hand quarter of Governments Exhibit No. 71.
Q (By Mr.
Hultman) Now, is that spot out in the open, or is that in the trees?
A It's in the
open.
Q It's out in
the open. As you look at Government's Exhibit 71, Norman, are the areas
that show no little vegetation or little circles, is that basically an
open area where there is no trees or bushes of any sights to where you can
see literally everything?
A Yeah.
Q All right.
Now, was that an area where you could see generally most of the area where
there are no bushes on this map here?
A Yeah.
Q Now, tell us
when you got there what did you do, and what did you see if anything when
you got up to the point where you {1430} said you ran up to in the general
area of the word "Plateau". Can you see good from there?
A Yeah.
Q What could
you see from there?
A You mean me
see from here (indicating)?
Q No. When you
ran up to the plateau, right.
A Yeah.
Q Did you have
any gun with you at that time?
A No. Ran
through here, then they were shooting us from --
Q And where
did you gather the shooting was coming from then?
A From around
-- the sound was coming from here (indicating).
Q But did you
see any specific shooting?
A No.
Q Still did
not see any?
A No.
Q Did you
observe any people at that very time?
A No.
Q All right.
So what did you then do next?
A We ran back.
Joe told me to get a gun inside of the green ar.
Q All right.
So you testified earlier there were guns in he tent, in the supply tent,
or the food tent; is that right?
A Yes.
Q Now, at this
time the guns, or at least some guns are not {1431} in the tent, they're
in a car, a green car; is that right?
A Yeah.
Q Now, had you
ever seen that green car before?
A Yeah.
Q And where
did you first see it, remember seeing that green car?
A Farmington.
Q Is that one
of the cars you came back in?
A Yeah.
Q Do you know
who the green car belonged to at this time? The time we're now talking
about?
A No. Just
some people just drove it, you know.
Q All right.
Did you ever, who do you remember seeing driving it?
A The green
car?
Q Yes.
A I don't
think anybody, because I mean --
MR. TAIKEFF:
Your Honor, because the witness is turned, we can't hear. Could the
microphone be put near him.
I don't mind
that he's turned, but I'd like to hear the answer.
MR. HULTMAN: I
don't think he's given an answer yet, Counsel.
A I can't
remember.
MR. HULTMAN:
The answer is he can't remember.
{1432}
Q (By Mr.
Hultman) Did you in fact at that time then pursuant to what you did at
that time secure a weapon of some kind?
A Yeah.
Q And where
did you get it?
A From that
green car there.
Q All right.
And would you describe to the jury where was the green car in relationship
to the tents.
A It was right
there (indicating).
Q All right.
About where there is an object at the present time; is that right?
A Yeah.
Q An object
that indicates green car; is that right?
A Right.
Q And have you
ever seen this map here with any of these objects in front of it before in
the courtroom here today?
A Yeah.
Q Did you see
one that was similar at sometime in the past?
A Yes.
Q Have you
seen one in the last seven, eight -- six, seven, eight months at all?
A Yeah. It was
Cedar Rapids.
Q You haven't
seen any since then; is that right?
A No.
Q All right.
Now was there any other weapons in the green {1433} car?
A No.
Q And would
you describe to the jury the weapon that you got from the green car.
A It was a 22.
Q Well, now
did you know at that time that it was a 22?
A Yeah.
Q Then it is
not something that somebody told you since, or put any words in your mouth
or anything?
A No.
Q All right.
So is it fair for me to conclude, Norman, that at the time we're talking
about that you had a general knowledge of weapons of one kind or another?
A Yeah. Just
kind of like most everybody has.
Q All right.
Now, would you describe that 22 as you've called it to the jury. Tell them
what you remember about it.
A It was bolt
action. It was a single shot.
Q And had you
ever seen it before?
A No.
Q All right.
Do you remember anything else about that particular gun on that particular
day by way of anything other than it being a 22? Do you remember anything
about the weapon that you would remember?
A You mean the
one I took?
Q Yes.
{1434}
A It was a
single shot.
Q Single shot.
Do you remember anything else about that --
A Yeah. It had
little rounds.
Q Litie what?
A Rounds.
Q Little
rounds?
A Yeah.
Q It fired
small rounds?
A Yeah.
Q All right.
Do you remember anything else about that particular weapon, anything that
you would remember that weapon by as being different from some other 22?
A You mean --
Q Well, was
there anything about any of the parts of it that you would remember?
A Yeah. It was
a single shot.
Q It was a
single shot, all right.
Anything else
that you remember?
A No.
Q All right.
Now, I'm going to -- the FBI or nobody told you those at any time, those
are things you remember, right?
A Right.
Q Those are
the things that you are talking about are the things that you remember
from that day, all right.
I'm going to
show you what has been marked as Govern- {1435}ment Exhibit 41-A, and I
want to ask you whether or not in looking at 41-A is there anything about
this weapon, does it generally resemble the weapon that you are talking
about?
A Yeah. I
think that's the one.
Q You think
that it's the one?
A Yeah.
Q All right.
Now, in saying that you think it's the one, that doesn't mean that you
know exactly this is the one; is that right? Is that fair for me to
conclude?
A Yeah.
Q All right.
Now, what is it that makes you think that it's the one?
A Well --
Q And I'll let
you look at it. I don't mean in any way to be -- it's inoperative.
A Yeah. I
think it was this thing here on that (indicating). I think that's the one.
MR. HULTMAN:
Let the record show that the witness pointed out some carving that is very
unique and distinct as a part of the stock of this particular weapon in
looking at it.
Q (By Mr.
Hultman) Did I ever at any time before right this very second ever show
you or indicate to you that there was anything in particular about this
weapon that was unique or unusual?
A What?
{1436}
Q Have I ever,
have you ever pointed this out to me before?
A No.
Q All right.
And the FBI hasn't told you it was there, and to point it out, have they?
A No.
Q All right.
It's because you remember; is that right?
A Right.
Q All right.
Anything else about this weapon that looks, make it such that you think
maybe you had seen it before, or like the one on the time you are talking
about?
A Well, I
think it was that scope there (indicating).
Q All right.
It did have a scope on the one that you had?
A I think
that's the one, yeah.
Q All right.
And it is a bolt action type of the kind that you described, is it not?
A Yeah. That's
right.
Q All right.
Now, what is it then that -- did you get any ammunition?
A Yeah.
Q Where did
you get the ammunition?
A From the
car. It was, it was in the socks. I don't know how many rounds in there.
It was about half full. I can't remember where I got it, but it was inside
a sock, boots there.
Q All right.
Now, I believe you then said that somewhere you saw Dino and Bob. When was
it that you first saw Dino and {1437} Bob after the shooting, or with
relationship to the shooting, when was it that you first saw Dino and Bob?
A Well, I told
them that, I told Dino that there was shots coming from around the house.
And he got up.
Then as we got
my gun, then he met up with us. I think he was with Bob. Yeah, Bob. Bob
was -- we met up with them, though.
Q You know you
met up with them?
A Yeah.
Q Do you
remember where it was that you met up with Dino and Bob insofar as a
place?
A Right here
(indicating).
Q All right.
MR. HULTMAN:
And let the record show that the witness is pointing out an area just
below the words "SA Williams' car," which is along the small road.
Q (By Mr.
Hultman) Did they have any weapons at that time?
A Yeah.
Q All right.
Let's start with Dino, and that's Dino Butler; is that right?
A Right.
Q Now, would
you describe for the jury the weapon that Dino Butler had.
A It was a big
rifle. Had a big stock. It was just big.
It was long,
it was long. About this long (indicating). {1438} And it had -- it was
just a big rifle.
Q All right.
And was there anything else descriptive about it that you remember that
was different from other rifles?
A There was a
clip on there.
Q And where
was the clip, what with relationship? Does it come from the top or from
the bottom?
A I think it
was from the top.
Q All right.
Do you remember about the size or the length of the clip?
A I don't
know. I think it was about five rounds, ten rounds.
Q All right.
Now, do you remember what kind of a weapon that Bob had at that time?
A It was a --
I don't know what kind of a gun it was, but --
Q I want you
to describe. You didn't know what kind of a gun. Would you please describe
it to the jury.
A Well, it had
a long clip, and it had a handlebar trigger.
Q When you say
"long clip," you mean that one -- would you show about how long it is to
the jury.
A About this
long (indicating).
Q All right.
And is that the way that it goes to the weapon, the way you are now
describing it?
A Yeah, it
goes in like this (indicating).
Q What kind of
shells does it fire, the shape or the size of them?
{1439}
A I think it
was a 45 or 44.
Q Now, is that
something that you knew at that time, or is that something that somebody
has told you since then?
A Yeah, since
then.
Q All right.
Would you describe the size of the, of those shells, compared, for
example, to a 30 caliber. Do you know what the size of a 30 caliber shell
generally is?
A Yeah. About
this big (indicating).
Q All right.
How in size, in either length or in fatness or thickness?
A It was
pretty fat and it was small.
Q All right.
Now, where did you, where did you go from there?
A After I met
up with them?
Q Yes.
A Okay. We met
up with them. We started, me and Joe ran up here, and Bob and Dino went on
this trail here (indicating).
Q All right.
And where was the last point that you saw Bob and Dino? Would you point
out on the exhibit where it was the last spot that you saw Bob and Dino?
A About right
here (indicating).
Q All right.
A Along this
road (indicating).
Q All right.
Along the road?
A Yes.
{1440}
Q Now, you
drew a line along the road. Would you show the jury where it was you
recall you, they left you, or you parted, and how far down that road did
you see them?
A It was
about, I saw them about right around here somewhere (indicating).
Q And where
was the last spot that you saw them, to the best of your recollection?
Where were they, Bob and Dino, at the time you last saw them?
A It was on
this road here (indicating). And I last saw them when I split up.
Q You split
up?
A Me and Joe
were up here, and Bob and Dino went on this road here (indicating).
Q Did you see
them after you split up along the road at any place?
A Yeah. It
was, I think it was down here somewhere, down this area here (indicating).
Q All right.
MR. HULTMAN:
Let the record show that the witness encircled an area that includes at
the left edge the letter "P" as it now exists on the map and included the
road and the edge of the woods itself.
Q (By Mr.
Hultman) Now, where did you go then? You say you split back there, and
then you went someplace. Would you show the direction that you went.
{1441}
A Towards the
housing right here (indicating).
Q All right.
Did you run across ground then? You didn't follow any road; is that right?
A No. We just
ran across on top.
Q You ran
across on top.
And was there
firing going on at this time?
A Right.
Q Was there
firing going on all the time that you were running from the tent area with
the weapon that you are now describing?
A Just off and
on.
Q Off and on?
A Right.
Q All right.
And would you describe the nature of the firing that you heard off and on.
Did you hear a few rounds, or many rounds or approximately how many
rounds?
A Yeah. I
heard a few rounds then off and on. I heard one time about eight rounds go
off once.
Q Eight rounds
go off all at once; is that right?
A Yeah.
Q Well, does
that mean they were very close together when you say "go off at once"?
A I think it
was eight. There was, it was pretty fast. Yeah, it was fast.
Q All right.
That's while you are funning up here; is that right?
{1442}
A Yeah. About
right here (indicating).
Q All right.
Now, where specifically did you go with reference to the area, the Jumping
Bull area? Would you point out on the map the spot, or the general area to
which you went.
A I think it
was that -- I think it was that white house and --
Q When you say
"the white house" you mean the Jumping Bull house?
A Yeah.
Q Okay. You
think you went to the white house!?
A (No
response.)
Q Or if you
didn't, I mean you think about it for a minute.
A No. It was,
I think it was that shed there.
Q All right.
Would you point out the shed. Is that the one between the green house and
the white house?
A Yeah.
Q There is a
shed there, all right.
Now, was there
anybody else there at that time when you got there?
A Well, when I
was, when I was running across, Angie and Ivis were carrying two little
kids. I think it was two or three little kids. They were running over
towards that crest there (indicating).
Q All right.
As you came up to this area then, there was, would you describe again who
it was and where they were going?
{1443}
A It was Angie
and Ivis Long Visitor.
Q All right.
And are they the people that live in the green house?
A Yeah. And
well, well, when we split up we started running about right here
(indicating), then we saw them. We passed them.
Q You passed
them; is that right?
A Yeah. Not
real close, but we just passed them.
Q And do you
know where they were going or what general direction?
A Yeah. They
were, I guess they were running up opposite from where they were coming
from.
Q With
relationship to the highway, or tent city, do you where the general
direction they were going?
A About
towards where this line is, like that direction (indicating).
Q All right.
Would that be along sort of the crest of the plateau, the high ground; is
that right?
A Right.
MR. TAIKEFF:
May I ask, Your Honor, for Mr. Hultman to state approximately the point
where they seem to have passed each other. That was not put into the
record.
MR. HULTMAN: I
don't know, but I'll ask the question, Counsel, for clarification.
Q (By Mr.
Hultman) Would you point out approximately where {1444} it was as you best
can recall that you saw the Long Visitors. You said in response that they
weren't, you didn't pass them very close, but you were going the opposite
direction. Would you point out approximately where it was that you saw
them. Where were they when you saw them?
A About right
here somewhere (indicating).
Q All right.
MR. HULTMAN:
Let the record show that it's in the general area on the plateau.
Q (By Mr.
Hultman) Now, who was at, if anybody, who did you see when you got to the
shed between the white house and the green house?
A It was Mike
and Norman.
Q Mike and
Norman; is that right?
A Right.
Q Would you
tell the full names to the jury again.
A Mike
Anderson.
Q Mike
Anderson.
A And Norman
Charles.
Q And Norman
Charles.
Now, where was
Mike Anderson when you first saw him?
A He was by, I
think he was by that white house there, the Jumping Bull house.
Q All right.
By Jumping Bull's house, all right.
And where was
the other young man that you referred to?
{1445}
A They were
both around that white house there.
Q Both around
the white house, all right.
Now, did you
see anything in the general area other than those two people? Did you see
anybody else?
A Yeah. Me and
Joe ran up here (indicating). We were by that green house, that shed
there. There was Mike and Norman. Then I looked down around here and I saw
Leonard there.
Q All right.
Now, you saw Leonard. Would you come to the map, and so that the jury can
see where it is now at this time that you saw Leonard. Would you point
that out specifically where you saw Leonard.
A
(Indicating.)
Q All right.
Let me draw a circle as you did and you tell me if it's any different.
It's in that general area that you saw Leonard, is that a fair
representation?
A Yeah. It's
about right I guess.
Q Well, if it
isn't -- is this the general area where you saw him?
A The general
area.
Q All right.
If it's any different I want you to make sure what it is.
A No, it's
right, it's right.
Q You go ahead
and put it on the map the way it was, not the way I maybe drew a circle
because you were there and I wasn't.
A What do you
mean?
{1446}
Q Well, where
was the general area that you pointed out where you remember seeing
Leonard at this point?
A Right here
(indicating.)
Q All right.
You drew the circle a little larger. Would you draw it so it's clear on
the map.
A
(Indicating.)
Q All right.
MR. HULTMAN:
Let the record show that the line, that circle area that has a number of
black marks, and I'm going to designate that circle area with the letter
"L".
Q (By Mr.
Hultman) Now, what was he doing at that time?
A Well, he
was, he was laying down and he'd get up and shoot, and then he'd lay back
down and get up and shoot, and lay back down.
Q Now, what
kind of weapon did he have at that time that you observed him?
A It was like
the one -- looked like an M16.
Q It's like
the one I showed you; is that right?
A Right.
Q All right.
THE COURT: Mr.
Hultman, we have reached the time when the Court is set for recess. Court
will recess until 9:00 o'clock tomorrow morning.
(Whereupon,
the court adjourned at 4:30 o'clock P.M. on March 24, 1977 until 9:00
o'clock A.M. on March 25, 1977.)
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