Testimony of FBI Special
Agent Gary Adams in the Leonard Peltier Trial
(March 17-18, 1977)
MR. SIKMA: Your Honor, the Government calls J. Gary Adams.
J. GARY ADAMS,
being first duly sworn, testified as follows:
{56}
DIRECT EXAMINATION
By MR. SIKMA:
Q Mr. Adams, what was your occupation on the 25th -- or
the month of June, 1975?
A I was a Special Agent with the Federal Bureau of
Investigation.
Q And is that still your occupation?
A Yes, it is.
Q How long have you been a Special Agent of the FBI?
A Approximately seven and a half years.
Q Where were you -- where was your place of assignment
in June of 1975?
A I was assigned to the Rapid City, South Dakota, resident
agency which covers the Pine Ridge Indian Reservation in South Dakota.
Q And how long have you been assigned to Rapid City as
the --
A (Interrupting) I have been assigned just over three
years.
Q You indicated that you had an assignment there of the
Pine Ridge Indian Reservation. Would you tell the jury where that is
located?
A It is in the southwest corner of the State of South
Dakota,
south and east of Rapid City.
Q And about how far is it from Rapid City?
A Approximately 120 miles.
{57}
Q How does it come about that as a Special Agent of the
FBI that you work on an Indian Reservation or assigned to --
A (Interrupting) The FBI investigates 13 major felonies,
some 13 major felonies and some misdemeanor violations on the Indian
Reservation.
Q And to your knowledge is this an assignment by Statute?
A Yes, it is.
Q If you will look on the map to the far left of the jury
there, to your right, do you see the Pine Ridge Indian Reservation on
that
map?
A Yes, I do.
Q O.k. There is a pointer on the other map, would you take
that pointer and point out to the jury where the Pine Ridge Indian
Reservation
is?
A Yes. May I step down?
THE COURT: Yes. During this trial the Court will permit
witnesses to step down when necessary to illustrate evidence, and it
may
be done without requesting permission.
THE WITNESS: Thank you, your Honor.
MR. SIKMA: May the record reflect that the exhibit is
numbered
70 which is the exhibit to the far left, to my far left.
A (Continuing) Referring to Government Exhibit No. 70,
this is the Pine Ridge Indian Reservation which is lined out in {58}
the
southwest corner of the area depicting the State of South Dakota.
Q How large is the Pine Ridge Indian Reservation?
A It is approximately a hundred miles long and sixty miles
wide, and a hundred miles this way to the east and west, and sixty
miles
to the north and south.
Q And you indicated that you were assigned to work cases
on the Reservation. Are there other cases or other agents assigned to
other
various areas in South Dakota?
A Yes. The Rapid City resident agency covers the whole
western edge of South Dakota from the North Dakota clear to the
Nebraska
border.
Q And how far in -- how far to the east did the
jurisdiction
go?
A Well, we have another office in Pierre so it would have
been roughly through this area here (indicating), including the Pine
Ridge
Indian Reservation.
Q Right at the eastern edge of the Pine Ridge Indian
Reservation,
is that correct?
A That is correct. We have Washabaugh County which is in
this part of the Reservation (indicating), and we do not cover Philip.
That is covered out of Pierre, and we go up in this area here
(indicating).
Q Now, on the Pine Ridge Indian Reservation, are you
familiar
with the town of Pine Ridge?
{59}
A Yes, I am.
Q And where is that located?
A It is on the southwestern corner of the Reservation.
That is the principal town on the Reservation.
Q And do you know about what its population is?
A I have no idea.
Q About how far is it from the Nebraska-South Dakota
border?
A Pine Ridge is north of the Nebraska-South Dakota border
approximately two miles.
Q Are you familiar with the town of Oglala, South Dakota?
A Yes, I am.
Q And where is that in relation to Pine Ridge, South
Dakota?
A Oglala is north and west of the town of Pine Ridge.
Q Would you point that out on the map, if you can?
A It would be up in this direction here (indicating).
Q Approximately how far is it from Pine Ridge?
A It is approximately 16 miles from Pine Ridge.
Q Now, would you point out -- would you look at Government
Exhibit 71? Is there a highway -- that's the map directly in front of
you
-- is there a road on that map which connects Pine Ridge and Oglala?
A Yes.
Q And what is that?
A U.S. Highway 18 here (indicating) connects Pine Ridge
and Oglala.
{60}
Q O.k. Which direction on the map is Pine Ridge?
A Pine Ridge would be in this direction (indicating), it
extends out here (indicating).
Q That's to the top of the map?
A The top and to the right of Government's Exhibit 71.
Q And Oglala then would be to the bottom and to the left,
is that correct?
A Yes, over here to the southwest (indicating) -- this
is in a north -- or to the north and west.
MR. SIKMA: You may resume your seat.
{61}
THE COURT: Mr. Sikma, I wonder for the record if those
exhibits should not be received in evidence.
MR. SIKMA: Your Honor, I would offer them in evidence,
Government's Exhibit 70 and Government's Exhibit 71.
I believe, Your Honor, that it has been stipulated --
THE COURT: It was stipulated but I believe for the record
they should be formally offered.
MR. SIKMA: I agree, Your Honor.
THE COURT: 70 and 71?
MR. SIKMA: Yes, Your Honor.
MR. LOWE: No objection, Your Honor.
THE COURT: Very well. Exhibits 70 and 71 will be received.
Q (By Mr. Sikma) Mr. Adams, are you familiar with a special
agent of the FBI, Ronald Williams?
A Yes. I am.
Q And how long did you know Ron Williams?
A I knew Ron Williams approximately two years.
Q And could you tell me what his assignment was.
A Ron Williams was also assigned to the Rapid City office
of the FBI.
Q Now while he was assigned there what were his assignments
generally?
A When I, when I first knew Ron he worked in Rapid City
and the surrounding counties investigating cases in which we had {62}
jurisdiction.
Q Okay. That's Pennington County?
A Including Pennington County which contains the town of
Rapid City.
Q Was he ever assigned to the Pine Ridge Indian
Reservation?
A Yes. During the latter part of 1974, the first part of
1975 Agent Williams was assigned to Pine Ridge.
Q Do you know how long he was a special agent of the FBI?
A Agent Williams had been with the FBI approximately five
years to the best of my recollection.
Q Did you ever work with Ron Williams on any case?
A Yes. I did.
Q Was that frequently or infrequently?
A We worked on occasion in cases that he had, we had juris
diction, in Pennington County and around Rapid City and also on the
Pine
Ridge Indian Reservation.
Q Did you know Ron Williams outside of work as well as
at work?
A Yes. We were close personal friends too.
Q Now when you would go to the reservation and work on
the reservation where did you generally stay?
A We either stayed in the motel in Rushville, Nebraska,
or Gordon, Nebraska.
Q And approximately how far were you generally, when you
were working on the reservation how far were you from your home in {63}
Pine Ridge, or excuse me, in Rapid City? How far was the reservation
from
Rapid City?
A Approximately one hundred twenty miles from Rapid City.
Q Did Ron Williams have an automobile assigned to him?
A Yes. He did.
Q What kind of an automobile was that?
A It was a 1973 Rambler.
Q That was in June of 1975?
A Yes. It was.
Q And what kind of radio equipment did that vehicle have?
A Agent Williams in that car had a, had two radios.
One was the five channel FBI radio which we communicated from
car to car or from our office in Rapid City to, from the car.
The other was a, what we call a State radio. We could talk with
the State Highway Patrol dispatcher or we could also talk with the
Bureau
of Indian Affairs.
Then there was a government channel which the Pine Ridge police
department had for government work from our cars or from the law
enforcement
service in Rapid City.
Q Did you ever talk with Ron Williams on the radio?
A Yes. I did. Many times.
Q Did you recognize his voice on the car radio?
A Yes. I did.
Q Do you know a Special Agent, did you know a Special Agent
{64} Jack R. Coler?
A Yes. I did.
Q And how long had you known Jack R. Coler?
A Approximately one month.
Q How did it come about that you met Jack Coler?
A Agent Coler was assigned to the Pine Ridge Reservation
on temporary assignment and we worked, he worked on the reservation and
was there at times when I was there.
Q How long was his temporary assignment?
A Agent Coler was assigned there for sixty days.
Q Okay. And what was the nature of his assignment?
A Agent Coler was to go along with five other agents
present
to the Pine Ridge Reservation to work all the new cases that were
generated
at that time.
We had a heavy case load every time there's a violation of cases
open and those of us who were assigned there had a heavy case load and
we hadn't finished before so they sent six agents in to help with our
work
load so we could get caught up.
Q What kind of cases?
A They were primarily all felony violations which occurred
near the Pine Ridge Indian Reservation.
Q By a felony do you mean such as robbery --
A Robbery, kidnapping, assault, rapes, murders.
Q What date or what time did Jack Coler arrive in Rapid
City to work on the reservation?
{65}
A Agent Coler arrived in Rapid City either on Memorial
Day or the day after Memorial Day in 1975 which would have been the
latter
part of May.
Q Did you have occasion to discuss cases with Jack Coler?
A Yes. I did.
Q Did you work any cases with Jack Coler?
A Not to my recollection.
I know we discussed a few of the cases down there and he asked
me about where certain people lived and that but I don't recall ever
working
cases with him.
Q You were quite familiar with a number of people as a
result of your work on the reservation, is that correct?
A That is correct. I had several friends and had met a
lot of people on the reservation.
Q What kind of radio equipment did Jack Coler have in his
vehicle?
A Jack Coler also had a radio which he was able to
communicate
car to car with, on our FBI frequency and to our office in Rapid City.
Q Did --
A He could have had another radio. I don't recall if he
did or not.
He could have also had another radio but it was a Colorado car
and I would not be familiar with what other agency he could communicate
with on the FBI radio if in fact he had one.
{66}
Q So Jack Coler then, although he came from another FBI
office he came with his car, is that correct?
A That's correct; yes.
Q And what kind of car was that?
A It was a Chevrolet, four door. I believe it was a 1972
model with a light vinyl roof, gold in color.
Q And he could communicate with FBI agents such as yourself
and Special Agent Williams, is that correct?
A He could.
Q Do you know where he stayed in June of 1975 --
A Yes.
Q -- when he was working on the reservation?
A Yes. He was staying at the Hacienda Motel in Gordon,
Nebraska.
Q Do you know whether Jack Coler and Ronald Williams worked
together on cases?
A Yes. They had on occasion worked together down there.
Q Do you recall or are you familiar with any cases that
they were assigned to at that time on the 25th or the 24th of June of
1975?
A Not specifically.
I know Or a case that they were working on that was assigned
to Agent Dean Hughes.
{67}
Q And what case was that?
A That was an assault and robbery case that occurred, to
the best of my recollection, on the weekend before the 26th of June,
1975.
Q And how many persons were charged in that incident?
A There were four individuals charged in this crime.
Q Do you know who they were?
A Yes. I do.
Q And who were they?
A They were Teddy Pourier, Hobart Horse, Herman Thunderhawk
and James Theodore Eagle.
Q On the 25th of June, or rather the 26th of June had any
of these persons been arrested?
A Yes. Teddy Pourier had been arrested.
Q Now speaking in generally, not specifically necessarily
of this case, what were your duties with regard to charges filed
against
individuals?
A Well, after the violation occurred the case would be
discussed with the United States Attorney's office.
At that time if he authorized prosecution Or the individual or
individuals, either a Complaint would be filed. If a Complaint was
filed
at that time an arrest Warrant would be authorized. The case might go
to
the Federal Grand Jury and an indictment returned; at that time a
Warrant
issued and the individual would be, attempt to be apprehended.
{68}
Q If a warrant was issued, did you have any duties with
regard to that warrant which were part of your assignment?
A Yes, we did. We would affect the warrant and attempt
to apprehend the individual.
Q Is that true of every FBI agent?
A Yes. That is part of our assignment as an agent of the
Federal Bureau of Investigation.
Q Warrants are out for people, you are assigned to go out
and apprehend these individuals, to locate and apprehend them?
A Yes.
Q Are you familiar with the warrant that was outstanding
for James Theodore Eagle?
A Yes, I am.
Q Would you recognize it if I showed it to you?
A Yes, I would.
Q I will show you what has been marked for identification
as Government Exhibit 5 and ask you to tell me whether or not you
recognize
that document.
A Yes. Referring to Government Exhibit No. 5, this is a
copy of the arrest warrant for James Theodore Eagle issued in the
United
States District Court in Rapid City, South Dakota.
Q Now is this the James Theodore Eagle which Ronald A.
Williams and Jack Coler, the case they were working on on the 25th and
26th of June, 1975?
A Yes, it was.
{69}
MR. SIKMA: Your Honor, I would offer into evidence
Government
Exhibit 5.
MR. TAIKEFF: No objection, Your Honor.
THE COURT: Exhibit 5 is received.
Q (By Mr. Sikma) On the 25th, what was the last time that
you saw Ronald Williams on the 25th of June, 1975?
A It was about between 7:00 and 7:30 P.M. in the evening.
Q And where were you at that time?
A I was enroute from Whiteclay, Nebraska north of Pine
Ridge with the officers of the Nebraska Highway Patrol and the Sheridan
County sheriff's office. We were going to a law enforcement meeting in
Pine Ridge.
Agent Williams was driving south on the highway in his 1973 green
Rambler.
Q You recognized him?
A I did. And we waved.
Q What time of the day was that?
A That was sometime between 7:00 and 7:30. The meeting
was at 7:30 and we were enroute and he was headed to his motel, I
presume.
Q Do you recall what the weather was like on that night?
A Sometime between 7:30 and 9:00 or 9:30 there was a severe
thunderstorm. They had high winds and heavy rain.
Q On the following day did you have occasion to be in the
area between Pine Ridge and Oglala, South Dakota?
{70}
A Yes, I did.
Q And did you see any evidence of that rain?
A Yes. There was, in the low places and the rest of the
road and places like that there was still water standing.
Q Was this true throughout the day?
A Yes. Even on into the evening.
Q On the 26th of June, 1975, what was your assignment?
What were you doing?
A I was working some of my cases on the Pine Ridge Indian
Reservation.
Q And did you have occasion to go to Pine Ridge that day?
A Yes, I did.
Q About what time were you in Pine Ridge, South Dakota?
A I arrived in Pine Ridge, South Dakota around 11:00 A.M.
in the morning.
Q And at that time did you have occasion to see Special
Agent Williams?
A Yes, I did.
Q Where was he at that time?
A He was parked outside the Pine Ridge jail in his 1973
Q And with whom, was he with anyone?
A He was seated in the car and Agent Hughs was standing
out side talking to him.
Q Do you know what case they were discussing?
{71}
A No. I do not.
Q Did you have knowledge at this time that they were
working
on the Jimmy Eagle case?
A Yes. I understood they were working on this particular
case.
Q Do you know what the individuals were charged with in
that particular case?
A I believe agent, or James Eagle was, and Herman
Thunderhawk
were charged with, I believe they were charged with robbery and Hobart
Horse was charged with assault and Teddy Palier was charged with
assault.
Q What kind of assault was that?
A That would be assault with a deadly weapon.
Q How long did you remain in Pine Ridge that time?
A I was there about 45 to 50 minutes.
Q What did you do after you were there?
A As I saw Williams and Hughs, I went into the jail,
conducted
an interview, returned to the Bureau of Indian Affairs office there.
Everyone
was going to lunch so I got into my car and started to Whiteclay,
Nebraska
for lunch.
Q Do you know Special Agent Hughs at that time had, did
he have someone with him at that time?
A Yes, he did. He was in the process of transporting Teddy
Paul Palier to Rapid City. He had been arrested the day before.
Q And what did you do at that time?
{72}
A After I left the Bureau of Indian Affairs office, I got
in my car and started to Whiteclay, Nebraska for lunch.
Q That was at about what time?
A About 11:45 or 11:50
A.M.
Q And how far did you go toward Whiteclay?
A About two miles. Well, I just got to the Nebraska-South
Dakota line which is approximately two miles south of Pine Ridge.
Q And what happened at that time?
A I had been monitoring some radio communications from
Agent Williams and I found that he needed some help so I went back
towards
Pine Ridge.
Q What was the first radio communication that you heard?
A The first radio communication I
recall is he said, "Looks like there's some guys around that house. It
looks like they're going to get into that pickup. Looks like they're
going
to take off"
Q And about how long a time was it between the first
communication
that you monitored and the second?
A It was just a matter of minutes.
Q Matter of minutes?
A Yes. Two or three minutes.
Q And what was, let's say from the second to the third
communication, how long was it?
A It was, from the first to the second communication was
again one or two minutes. It was just all in sequence.
{73}
Q Very, very close together?
A Yes, it was.
Q Just a matter of a few minutes from the beginning until
you stopped, is that correct?
A Yes.
Q What was it after the communication that "It looks like
they're getting in that vehicle," what was the communication that
followed
that?
A Hell, after he said, "Looks like they're going to get
into that pickup, looks like they're going to take off," then he said,
"I hope you've got a lot of guys" or something to that effect.
Q What was the next thing that happened?
A Then he said, "Looks like they're going to shoot at us."
Then he said, "We've been hit."
Q Did you hear anything on the radio besides voices when
they said, "It looks like they're going to shoot at us"?
A Yes. There was sounds of gunfire over the Bureau radio.
Q How long was it from the time that he said, "It looks
like they're going to shoot at us" to "we've been hit"?
A It was just one communication after the other.
Q Just a few seconds?
A Seconds; yes.
Q Did you have occasion to contact him at this time?
A At that point I picked up my radio, my microphone and
I {74} attempted to call him to find out what his location was.
Q And did you talk with him?
A Yes. He finally told me that he was at some houses behind
Jumping Bull Hall.
Q Did he say he was at some houses?
A Yes. He was at some houses in the vicinity of Jumping
Bull Q Did you know where Jumping Bull Hall was?
A No. I did not. I did not know the specific location.
I knew generally it was between Pine Ridge and Oglala, South Dakota.
Q What did you do then?
A I turned my car around and started to drive toward
Oglala,
South Dakota.
Q Now you were about how far from Oglala?
A At that point I would have been about 18 miles.
Q And so you headed to the northwest?
A Yes, I did.
Q What highway were you on?
A I went through Pine Ridge and started on U.S. Highway
18.
Q And during this time did you stay on the FBI radio at
all times?
A No, I did not. After I talked to Williams and heard the
firing, I tried to raise the Pine Ridge Police Department on the other
radio.
{75}
Q Were you able to do so?
A No. I was not.
Q What did you do then?
A Well, I tried on two different channels and then I heard
the state police in Rapid City call the Pine Ridge Police Department on
the government channel one and advised them there was trouble north of
Pine Ridge.
Q And did you have to drive through any towns on the way
to Oglala?
A Yes. I did drive through Pine Ridge and then proceeded
northwest on Highway 18.
Q Did Ron Williams try to direct you to any particular
place?
A Yes. I tried to call him back on the radio because I
did not know the specific location of the Jumping Bull Hall. Then he
finally
came back and said, "Get on a high hill and give us some fire cover.
We'll
be killed." And he said, he did relate, he said, "Come to a house,"
that
was some distance, a house that has an outhouse some distance from it,
but he did not give any specific location yet.
Q Did he indicate to you whether or not he was in a valley
at that time?
A Not that I recall.
Q He told you to get on the high ground?
A Yes. Get on the high hill and give us some fire cover.
Q Where was that high hill located?
{76}
A At that point I did not know.
Q How far did you drive after that before stopping?
A I drove eight or nine miles northwest of Pine Ridge,
then I stopped my car.
{77}
Q O.k., and why, would you explain why you stopped?
A I stopped my car to get a bullet-proof vest and my rifle
out of the trunk.
Q And you didn't have a rifle in the car with you?
A I had a shotgun in the front seat with me.
Q But not a rifle?
A No, I did not.
Q What kind of a firearm did you carry?
A I had a 3.57 Magnum revolver, and then I had the shotgun
in the front seat with me. The rifle was in the trunk.
Q When you stopped your car, did you hear anything?
A Yes, I did. I heard shooting from the distance.
Q And did you see anyone at that time?
A No, I did not.
Q Did you meet anyone on the way toward the Jumping Bull
Hall area?
A Yes. After I got back in my car and started on the road,
there was a Pine Ridge police car came with two officers in it.
Q And who were those officers?
A Frank Two Bolts and James Pacer.
Q Now, approximately, did these -- excuse me. Did these
two BIA police know where Jumping Bull Hall was?
A Yes, sir, they did. We had a brief conversation.
Apparently
they had received word via their radio frequency as to what was going
on.
{78}
Q And what did you do next?
A I agreed to follow them into the area because they knew
where they were headed.
Q And where did you go?
A We then went on down Highway 18, and they turned off
of Highway 18 and I followed them into this area.
Q O.k. Would you go back to the map now and point out where
it was on Government 71?
A Referring to Government Exhibit 71, we came down Highway
18, turned off the road here (indicating), and drove up into the
vicinity
of this house right here (indicating).
MR. SIKMA: May the record reflect that the witness
identified
the last road to the left of the map on Government Exhibit 71, the main
road going off of Highway 18.
Q (By Mr. Sikma) Now, what -- it is also marked on the
map there, is it not -- what house?
A Yes. This house is referred to as a tan and red house.
It is the far left residence on Government Exhibit 71.
Q O.k., and whose house is that?
A That house was occupied -- residence there, by Wallace
Little, Jr., and Wanda Sears.
Q Did you have occasion to gain this information later
as to whose house that was?
A Yes, I did.
{79}
Q So at that time you didn't know who the people were that
lived in that residence?
A No, I did not.
Q And at that time, I take it that you did not know the
whereabouts specifically of Jumping Bull Hall?
A No, I still did not know the exact location of Jumping
Bull Hall.
Q Tell what happened next.
A Well, we stopped our cars here (indicating). The Pine
Ridge Police Department stopped just in front of me. I stopped to their
right or to the west, referring to Government Exhibit 71, and I started
to get out of my car.
Q And now, how far was that from the Wanda Sears'
residence?
A I would estimate I was 50 to 75 feet from the residence,
Q Is that to the east?
A That would be to the east, northeast.
Q And what happened at that time?
A Just as I started to get out of my car a shot rang out.
Q And did that shot strike anything?
A Yes. It appeared to hit the right front tire of the
Bureau
of Indian Affairs' police car.
Q Now, what happened after that?
A As soon as the shot rang out, I got back in my car and
I yelled at them, "They are shooting at us."
Q Where were the shots coming from, could you tell?
{80}
A To the best I could tell, they were coming from the south
or the southwest.
Q Please continue.
A And as soon as I got back in my car, right after the
first shot, another shot rang out.
Q Where did that shot come from?
A It again appeared to come from this area over in here
(indicating). I had the window down, and I could just hear the sound. I
didn't see anyone shooting at me.
Q What did you do then -- or excuse me.
First of all, what happened, did that shot hit anything?
A Yes. The second shot appeared to hit the left front tire
of my Bureau car.
Q What kind of car was that?
A That was a 1972 Ford.
Q And what happened next?
A We both proceeded to back out across this open area here
(indicating).
Q And that's an area between the first and the second road,
the roads that are on either side of the sign, 18, is that correct?
A Yes.
Q And you back into that open field?
A Yes. We both proceeded to back in a zigzag fashion across
here (indicating).
{81}
Q And how far did the other police officers go, how far
did they go?
A The Bureau of Indian Affairs' car backed toward Highway
18, and there is a crest of the hill. This area (indicating), between
this
triangle formed by the two roads, referring to Government 18 -- and
Highway
18 is flat open area, and just to the west, southwest, and more or less
parallel to Highway 18 is a crest of a plateau that goes down through
here
(indicating). The Bureau of Indian Affairs' car got just over the edge
of the crest.
Q And how far did you get?
A Again referring to the triangular area, there is an old
roadbed right along the top of this crest (indicating). I was having
trouble.
I was in the zigzag fashion. My car was going down, and I started into
this dip (indicating). I happened to see it coming up, and I knew it
was
deep enough that I would probably upset, so I swerved and tried to
avoid
this old roadbed here and slid into the roadbed sideways.
Q At that time were you receiving any fire, was anyone
shooting at you?
A Yes, we were. As we started to back from the vicinity
of the red and tan house, there were individuals in the vicinity of
these
residences here (indicating), referring to the log house, the white
house
and the green house -- were firing at us as we backed from the area.
{82}
Q And what happened to you as you were backing away from
that area?
A After I slid into the old roadbed there with the front
tire flat, I could not go any further.
Q So you were stalled there, is that right?
A Yes, I was stuck in that particular location. It would
be -- referring again to the triangular area just off the curve of the
road which is on the far northwest side of the triangular area.
Q I take it then there is an old roadbed that runs parallel
to Highway 18, is that correct?
A Yes, that is correct. I don't know -- two or three feet
deep, that runs parallel to Highway 18.
Q And is that roadbed at the edge of the plateau?
A Yes, more or less. It does set up on top of the plateau
in this particular area here (indicating).
Q And the plateau, I take it, also runs parallel to Highway
18?
A The crest of the plateau, yes.
Q Now, did you talk with Special Agent Williams at this
time?
A No, I did not. The last communication I had with him
was way back up Highway 18 before I stopped my car to get my
bullet-proof
vest and rifle out of the trunk.
Q Did you talk to him, did you say anything to him at this
time?
{83}
A After --
Q (Interrupting) No, initially when you were back on the
road.
A No, I did not. He had told me at that time to come to
the house with an outhouse, some distance from him, and to get on a
hill
and give him some fire cover or he would be killed.
Q What, if anything, did you say to him?
A I just -- if anything, I just told him I was -- I don't
know if I said anything to him.
Q Did you indicate to him that you were on the way?
A Yes, I did, to the best of my recollection.
Q Did you receive any communication after that, did he
say anything?
A No, I did not.
Q What was the last thing that he said that you recall?
A To the best of my recollection it was that he directed
me to the house, with the outhouse some distance to it, and to get on
the
high hill and give him some fire cover or he would be killed.
Q Did you hear any sounds other than voices on the radio?
A Yes, I did. During the conversation there was also, what
appeared to me, the sound of shots over the Bureau radio.
Q When you arrived at the residence called Wanda Sears'
residence, did you hear anything at that time?
A No, it was all quiet when I stopped at this location
here {84} (indicating).
Q Now, while you were driving up, did you have your window
down?
A Yes, I did.
Q Did you hear any shots as you were driving up that road?
A No, I did not.
Q You may resume your seat. Would you describe what
happened
next?
A I crawled out of the side of my car. I took my rifle,
and I fired -- started firing toward the individuals that were shooting
at me.
Q And they were in the area marked "residences" up there,
is that correct?
A Yes. On Government Exhibit 71 it would be in the vicinity
of the white house.
Q And approximately how far were they from the white house,
in which direction from it?
A They were around the white house and in the trees to
the west of the white house.
Q Could you see individuals at that time?
A Yes, I could.
Q And what, if you can say, did they appear to be -- what
did they look like?
A They appeared to be Indian males.
Q When you got out of your car, you indicated that you
fired {85} two shots in that direction, is that correct?
A Yes, I did.
Q How many shots did you fire?
A I fired, to the best of my recollection, four shots,
one clip, and they just continued to shoot at me. I didn't appear to be
getting close. I looked down, and this rifle -- I had had a scope on
it,
and the scope was ajar on the mount, so I took -- it had a release type
mount, so I took the scope off and fired two or three more rounds with
the iron sights or the open sights.
Q Were they shooting at you up to that time?
A Yes, they were.
Q When you took the sights off, did they continue to fire
at you?
A After I fired the two or three rounds, they disappeared
into the trees or behind the residence.
Q How long did you stay in that position?
A I was in the vicinity of my car there until -- most of
the afternoon, until about 6:00 p.m.
Q Were you receiving any fire during this time?
A Yes. We received fire off and on all afternoon.
Q Did anyone else arrive at the area?
A Yes. There was other Bureau of Indian Affairs' policemen
and also members of the South Dakota Highway Patrol and some of the
surrounding
Sheriffs' offices and city police.
{86}
Q O.k. Who was the first person to your knowledge to arrive
after you arrived at the area?
A There would have been the Pine Ridge Police Department
representative -- I don't know which one would have been there -- their
acting agency Special Officer that was on the scene, then the Acting
Bureau
of Indian Affairs' Superintendent for the Reservation also came to the
scene.
Q O.k. Did anyone at this time go toward the houses at
any time during the afternoon, go in toward those places where the
shots
were being fired?
A Yes, they did.
Q What time, do you remember, was that?
A At approximately 12:30 there
was a non-Indian female entered the area.
Q And who was that?
A JoAnn Ladeau.
Q Do you know why she was going in the area?
A Yes. I received radio transmissions that she had talked
with Acting Bureau of Indian Affairs' Superintendent, Kendall Cumming;
and she wanted to go in in an attempt to negotiate with the individuals
who were shooting at us.
Q And did you see her go into that area?
A Yes. After the radio communication, I saw her enter the
area of the tan and red house, referring to Government Exhibit No. 71.
{87}
Q Did she stay at that place while you were there?
A She drove in on the road which passes the Jumping Bull
Hall, stopped in the vicinity of the tan and red house; and when she
got
out of the car and started to the house, I got on the loudspeaker and
told
her they were to her left, and then she walked to the vicinity of the
three
houses, the log house, the white house and the green house on
Government
Exhibit No. 71.
Q And could you see her at that time?
A I saw her off and on, yes, while she was in there.
Q And approximately how long did she stay there?
A I estimated that she was in there about an hour.
Q Did you fire toward those houses at any time?
A No, I did not. After I fired my sixth or seventh shot,
I did not fire again that afternoon.
Q And this was during the time of a truce?
A Yes. Mr. Cumming told me that she had agreed to enter
the area and attempt to negotiate with these people, and he asked for a
cease fire; and at that time I was the only individual in that area.
There
was no one firing towards the individuals at the residences.
Q During this time did you receive any gunfire?
A Yes, I did. As I stated, I received intermittent gunfire
at my location during the afternoon.
Q And this was during the time that she was in this area?
{88}
A To the best of my recollection, I also received fire
while she was in the vicinity of those houses.
Q How long did she stay in this area?
A To the best of my recollection she stayed about an hour.
Q O.k. Did you see or observe during this period of time
where she was, where she went or anything like that?
A At one point she was talking with some individuals in
the vicinity of the white house and the trees, to the west of the white
house. I also saw her walk back to the northwest and go in a westerly
direction
down off the crest of the plateau.
{89}
Q Now have you since that time walked to the area where
she was?
A Yes. I have.
Q Now tell me, what could you see if you were standing
in the area where you saw her walking?
A After you get off the crest of the plateau you can see
the entire area including the vicinity of the area marked Coler's car.
Q So from that, now from where you were could you at any
time see the area which was, which is marked Coler's car and bodies as
SA Williams and SA Coler?
Q Could you see it from where you were, where you were
in your car?
A No. I could not.
The crest of that plateau and the plateau which extends back
to Highway 18 is approximately twenty to thirty feet higher in
elevation
than the plateau in which is marked Coler's car and bodies of SA
Williams
and SA Coler.
Q Is that a relatively abrupt drop down the plateau?
A You can drive off of it but it does taper right off.
Q Are there some roads there that you can drive to the
bottom that are indicated?
A Yes. As exhibited on Government's Exhibit 71, there are
some roads that pass, they're trails is all they amount to that {90}
pass
into that area.
Q Approximately how long did JoAnn LaDeau stay in this
area?
A She was in there about one hour.
Q So did you see anyone else go into this area that
afternoon?
A Yes.
To the best of my recollection after she left the area there
was another individual who entered the area.
Q Okay. Who was that? Did you receive an announcement that
he was coming into the area?
A Yes. There was a, a radio communication
that an elderly gentleman was going to come into the area. He also
wanted
to try to negotiate.
Q And who was that?
A Wallace Little, Sr.
Q Is he related to the Wallace Little, Jr. that was living
in that residence to the west, or to the northwest?
A Wallace Little, Sr. is the father of Wallace Little,
Jr. and also June Little who lived in the tan and red house on
Government
Exhibit 71.
Q You observed him driving into this area, is that correct?
A Yes. I did.
Q And where did you go when you saw him go into the area?
Did you --
A He also drove into the house, or to the, on the road
that runs alongside Jumping Bull Hall, drove past the tan and red {91}
house and stopped in the vicinity of some vehicles which were parked
just
outside of the log house.
Q And where did he park if you could please point it out
with the pointer on the map?
A There are, there were two other vehicles parked in the
vicinity of this, this little black object which is north of the log
house
and to the best of my recollection he stopped right in the vicinity of
those two other vehicles.
Q And approximately how long did he stay there?
A He was in there just a few minutes and turned around
and left.
Q Okay. And which direction did he go out?
A He came back out, passed the tan and red house and back
out this direction and went to the southeast on Highway 18.
Q And that by indicating, he went again by the road called
Jumping Bull Hall?
A Yes. Past the road which passes by Jumping Bull Hall
and then he continued on.
Q Did you see him get out of his car while he was there?
A I don't recall seeing him get out of his car; no.
Q But you saw his vehicle, you saw it go in and you saw
it go out, is that correct?
A Yes. I did.
Q Now did you have any conversation with the, with other
people on Highway 18 at the time he drove out?
{92}
A Yes. At that time I tried to get someone south of that
area, or southeast of that area to stop this pickup.
Q And did they stop it?
A No. I had received no media of communication that they
were able to stop the pickup.
Q Did you see him go on past the roadblock?
A I could not see a roadblock from my location; no.
Q Now what time approximately was that that he left the
area?
A I estimate it to be around 1:30 p.m.
Q Approximately how long did you stay before anyone else
went into that area?
A I was there for the remainder
of the afternoon and it was about 3:00 o'clock in the afternoon when
the
next individual entered the area.
Q And who was that?
A Edgar Bear Runner.
Q Okay. At 3:00 o'clock in the afternoon you indicate that
Edgar Bear Runner went into the area?
A Yes.
Q And he was permitted to go into the area?
A Yes.
Again he had talked with Mr. Cumming and the acting agency
special
officer, Neil Moore, and he was allowed to enter the area and attempt
to
negotiate.
{93}
Q So he was going in to talk to the people in the
residence,
is that correct?
A Yes. This is -- yes.
Q Approximately how long did he stay in the area?
A He was in there the first time about twenty to thirty
minutes.
Q And where was he, or could you see him while he was
there?
A Yes.
Again he went to the vicinity of the white house on Government
Exhibit No. 71.
Q Was he on foot?
A Yes. He walked in.
Q And did he stay, did he go into the house or stay outside
the house? What did he do?
A To the best of my recollection he just talked with the
individuals outside of the house.
Q And what did he do next?
A He turned around and came back out to our location.
Q At what time did he leave on the first occasion?
A About, he came back to our area about 3:30 p.m.
Q I want to back up.
When JoAnn LaDeau left the area, did anything happen at that
time?
A Yes. After she left the area they attempted to talk with
her. She'd only stopped briefly and said she couldn't negotiate {94}
with
her people and refused to talk with the officers and left the area.
Q Now at that time did anything happen concerning you and
the people at the houses?
A Yes. After she left, then they started firing again at
our location.
Q And what was the nature of the fire: was it a few
shots or --
A At times it would be heavy fire and then it would just
be a shot now and then.
Q During this time did you return any fire?
A No. I did not.
No one from my location there fired toward the residences during
the entire afternoon.
Q And why didn't you fire in that direction?
A Primarily because we didn't know what the status of
Agents
Williams and Coler was. We didn't know if they were hostages, if they
were
in the house or what their situation was.
Q After Edgar Bear Runner came out the second time you
indicated he had been there about twenty minutes, is that correct?
A Yes.
Q How long later was it before he went in the second time?
A He talked briefly with Mr. Cumming and Mr. Moore and
he was asked if he had seen the agents and what their condition was
{95}
and he said he had and they appeared to be dead.
Q That was the first time or the second time?
A That was the first time.
Q Okay. And did he indicate where they were?
A No. He did not.
Q Approximately what time was it that he gave that
indication?
A It would have been 3:30 or 3:45.
Q And did he have occasion to go back into the area?
A Yes. At that point Mr. Cumming volunteered to go in with
Mr. Bear Runner to determine the specific condition of Agent Coler and
Agent Williams.
Q And what happened next?
A They walked into the area. I saw them walk by the tan
and red house off the crest of the plateau.
They had returned a short time thereafter and Mr. Cumming told
me that, that Ron and Jack were dead.
Q Did he come up to where you were at that time?
A Yes. I was there when he came back out.
Q Did Edgar Bear Runner ever go back toward the residences?
A Not on the second trip; no.
Q What happened next?
A We were attempting to get organized so we could secure
those houses.
Mr. Bear Runner wanted to have Mr. Cumming contact the Bureau
of Indian Affairs in Washington and Aberdeen before {96} any assault
was
made and there was some negotiation around there.
Mr. Cumming and I had a discussion concerning jurisdiction in
this operation.
Q Tell me, did anyone else come out of that area?
A Yes. They did.
Q And would you tell us what, approximately what time that
was and who you observed.
A Just prior to
Mr. Bear Runner's appearance on the scene at 3:00 o'clock I received a
radio transmission from the State police that there was a young
individual
walking on the crest of the plateau with his hands up.
Q Would you point out where that was.
A When I first observed this individual it would have been
in the vicinity, in this vicinity right here.
MR. HULTMAN: And that is, Your Honor, may the record
reflect
that that's approximately one foot directly to the left of the tent
city
area on the chart, a distance of one foot?
THE COURT: The record may so reflect.
MR. HULTMAN: Thank you, Your Honor.
Q (By Mr. Sikma) And would you direct which direction this
individual was walking.
A Yes. This individual walked along the plateau along the
edge of the plowed field and to the vicinity of three residences so
marked
on Government Exhibit No. 71.
{97}
Q And where if anyplace did he go from there?
A He was around there when Mr. Bear Runner was in there
and him and Mr. Bear Runner walked out to our location.
Q And did he have any indication, did he talk with anyone
or make any statement?
A Yes. We attempted to, to interrogate him as to what the
situation was in there and he only related that there were some armed
individuals
in the trees and Mr. Bear Runner told him not to talk with us.
Q What happened next? First of all, what time was this
approximately?
A When Mr. Zimmerman and Mr. Bear Runner left?
Q Yes.
A Sometime around 3:30 or 3:45.
Q Are you sure about that time?
A That's strictly an approximation. I hadn't made no notes
at any time that entire afternoon.
Q So this was sometime later in the afternoon, is that
correct?
A Yes. Yes. It was.
Q Where did you go from the, did you eventually leave this
particular area?
A Yes. The, the houses were eventually secured by law
enforcement
personnel and after I received word that they were secured I entered
the
area of the houses.
{98}
Q Okay. And where did you go?
A I first drove to the vicinity of the white house referred
to in Government Exhibit No. 71.
Q Did you at that time have occasion to go to the bottom
of the hill?
A Yes. After I was in the vicinity of the white house and
the green house I walked to the vicinity of what is marked on
Government
Exhibit 71 as Coler's car.
Q Did you, have you seen any photographs that reflect what
you observed at that time?
A Yes. I have.
Q I will show you what are marked for identification as
Government Exhibits 6A, 6B, 6C and 6D.
MR. TAIKEFF: May we approach the side
bar, Your Honor.
THE COURT: Yes. (Whereupon, the following proceedings were
had at the bench:
MR. TAIKEFF: Your Honor, at this time we thought it would
be appropriate to state to Your Honor the purpose for which we filed a
trial memorandum which listed the various objections we intend to make
as the Government offers evidence.
We trust that the understanding with the Government is that we
file it both for the Court's guidance and for the prosecution's
guidance
so that they would understand that our {99} position is that we think
that
there is certain prejudice involving those exhibits and in the showing
of those exhibits in any way in an effort to introduce them into
evidence.
I don't know that these particular photographs are on the list because
I haven't seen them at this particular moment but I'd like to make
clear
that we believe that the memorandum will reserve any of these
objections
in the hope that we make sure that Your Honor has ruled on those
particular
items before any revelation of them is made to the jury.
MR. HULTMAN: Well, Your Honor, we certainly are willing
to hear in good faith and counsel I know understands that and we, there
in this case has been no showing to the jury at all.
MR. TAIKEFF: I understand.
MR. HULTMAN: But we're going to go forward at this time
and we'll hope that you will at least, you know, Elliot will come
forward
as to, on each of the issues because until that time we're not going to
know for certain what your posture is which I don't know so in some
compartment
in the file, but at the present time I think we're --
MR. LOWE: Your Honor, the normal procedure is to show
opposing
counsel the exhibit before you show it to a witness and then we will
know
in advance and can approach the bench before a possible objectionable
item
is in evidence and I think --
{100}
MR. HULTMAN: Fine. Everybody is familiar with this, Your
Honor, and we'll follow it.
MR. SIKMA: I am certain opposing counsel knew precisely
what I was dealing with.
MR. TAIKEFF: The exhibits are all marked so we will all
know which, we each have a list of them.
MR. HULTMAN: I didn't make any remarks to the following
until you mentioned to the Court what the specific function of that
memorandum
was and we wanted to make sure what it was.
MR. SIKMA: We have also filed a memorandum in this regard,
with regard to these exhibits and this is in response to the
defendant's
motions.
THE COURT: That was filed last night?
MR. SIKMA: Yes, Your Honor.
MR. HULTMAN: Generally speaking I think the --
MR. TAIKEFF: The position of our memorandum, but to make
it clear to the Government, our position is that we do not wish to
restrain
the Government's effort to prove any fact which it thinks it has a
legitimate
purpose in proving and in order to avoid any prejudice we're prepared
to
stipulate to any fact which any of the evidence would place before the
jury in order to avoid the prejudicial impact that we believe is
inherent
in certain of the exhibits and those are the exhibits which are listed
in our memorandum.
We have in some instances made a legal objection and {101} in
the alternative, we make the objection and if Your Honor should find
that
our legal objection is not sufficient, that there is a prejudicial
basis
for objecting.
Where we make that claim of prejudice in every instance we are
prepared to make an appropriate stipulation so that the Government will
not be hampered in proving facts.
All we wanted to do is to avoid undue emotional impact on the
jury and we are prepared to make essentially any stipulation necessary
to satisfy the Government's needs except their need to raise the
emotional
level of this case.
MR. LOWE: May I point out, Your Honor, that this is, a
fairly important issue is going to be dealt with in other pictures. I
don't
know if Your Honor has had a chance to see any of these other pictures.
I might offer a suggestion that Your Honor may want to take a
midmorning recess so the jury can be excused and we can deal with the
memorandum
because your ruling in this instance is going to affect substantially
the
rulings on the later matter also and I think Your Honor would want to
see
those pictures in order to get a sense of them. I think it's very
difficult
for you to decide with all of us clustered around.
THE COURT: What is the Government's response?
MR. HULTMAN: Well, Your Honor, our position is that we
would not accede that the request of counsel not as to procedure but as
to the ultimate issue, I mean there's no sense {102} of putting them in
evidence as the jury, I mean that if the ultimate issue and evidentiary
items that we have submitted and that are on the exhibit list and the
counsel
has agreed to in discussion back and forth.
The Government, one, intends to enter them as evidence and, two,
we believe there is a legitimate basis for every, D, for example, just
starting with these four photos, these are four photos, these are four
photos of the exact situation in the case of this as the bodies were
found
and this is, if there's any piece of evidence that ought to be
admissible,
it certainly ought to be this.
{103}
These photos then show at the moment here when the bodies are
turned back, as you can see, to see all the various wounds and a number
of items of evidence that are going to come into testimony here, that's
the purpose itself as it is as gory as it is that is the facts and we
don't
think that the Government ought to be deprived of showing this is the
crime
of murder.
This goes to the very things that are pictured here and key
evidence
is involved here and this is the posture we take on all of the items of
evidence, Your Honor.
MR. SIKMA: One other thing, Your Honor.
The Government cannot be expected and should not be expected
to stipulate its case away.
There are obviously things which have more of an impact and it's
a legitimate purpose to show this evidence to the jury rather than
being
required to stipulate to it.
I believe we cited in our Brief on a certain case in this regard
and when the Government stipulates to certain things merely because,
like
the defense counsel is willing to write out a stipulation to it, this
affects
the effectiveness of our case which is a legitimate purpose of
presentation
of a case and advocacy and it's one of the things that are necessary in
order to give the jury a true picture of what occurred and not merely a
picture in black and white and a reading of some stipulation which does
not give them an indication as to what {104} actually happened and
that's
why it's necessary.
THE COURT: What's the specific issue before the Court at
this moment?
MR. LOWE: Whether those pictures should be admitted under
Rule 403, prejudice, overweighing prejudice or relevance.
MR. TAIKEFF: It seems, Your Honor, if I may have those
photographs for a moment, Mr. Sikma, my understanding of the evidence
and
this is what the agent came upon when they discovered the dead agents,
this is a true depiction of what the scene was as they found it.
Now we have these subsequent photographs. This one I would
identify.
The first one I refer to is 6A. That's what they came upon when they
arrived
at the scene.
6D, Your Honor, is a photograph made when the agents were turned
over by other agents or other law enforcement people and as Your Honor
can see, it's a close-up which does not reveal anything that the first
photograph doesn't reveal except gore, to use a single word.
Likewise 6B and 6C are further close-ups of the individual
agents.
Now there's no aspect of the pathology of this case which is
in dispute. We are prepared to stipulate that any of the findings of
any
pathologist concerning the number of wounds, the impact of the wounds,
the type of wounds, whether they were fatal or nonfatal, whether they
were
disabling. None of that is {105} in issue as far as we are concerned,
Your
Honor.
The only issue is, in this case is whether Leonard Peltier
participated
in these deaths, in the killings.
The fact that the agents are dead is not in dispute. The fact
that they were on official duties is not in dispute.
To show somebody these two photographs, 6B and 6C, establishing
and substantially showing where the agents were or that they were dead
is totally unnecessary to this. It is prejudicial; it is prejudicial
because
it was horrifying.
Now it may be that it is necessary for them to position the
agents
relative to the car, et cetera. For that purpose I'd say photograph 6A
is perfectly appropriate but the remaining photographs, Your Honor, are
there for one purpose only and that is they're for their emotional
impact
and the answer to that question, I think, is clear and I would ask that
the Government state what specific fact Exhibits 6B, 6C, and D would
establish
that 6A doesn't establish.
MR. HULTMAN: Many things.
MR. LOWE: May I make one clarification.
We only got the memorandum of the Government last night and we
haven't had a chance to do a lot of research on it but from what I read
and from what I would guess, I suspect that in none of the cases that
are
cited for the proposition of gory pictures coming in, in none of those
cases was the defendant willing to stipulate the ultimate fact of
pathology
and that's {106} what we're saying, as far as I know, as to what is in
the ultimate pathology that, we are not willing to stipulate to
high-powered
rifles, distance that they were fired.
If the Government would tell us, make an offer of proof we'll
stipulate to it I'm quite sure and I think that's the big distinction
and
then we'll proceed on Rule 403 which at least says that the probative
value
must outweigh the prejudice and we can stipulate to the probative
value.
It's difficult to see how these pictures would meet that test.
MR. SIKMA: Your Honor, there are a number of things that
can be shown but we choose and in the light of being effective in our
presentation
of this case to show things that the pathologist will be able to use
with
regard to these bodies only.
The pathologist who is examining the bodies and who did not
conduct
the autopsies, examines the photographs during the course of the
autopsies.
They're, of course, necessary but he must also have things that he can
see and compare with what he has observed in the photos of the
autopsies
as well as the bodies at the time so he can see if there's any
substantial
difference and he needs this in order to make a valid comparison and I
believe that they're legitimate for this purpose.
The chain of evidence, custody of all the evidence as far as
it's concerned with regard to this agent who has made this observation
can testify simply that he made those obser- {107} vations and that the
only thing that took place on these photographs is that the agents were
turned over.
Now we don't see the necessity to show these photographs to the
jury but we do see the necessity to show them at a later date after our
pathological evidence is brought in.
In the last trial it was stated that all things would be
stipulated
to and also, but in the closing argument some things came up which were
precisely the different. Mr. Lowe is the one who brought that up.
I'm not going to agree to go along with it at this time for that
reason because I thought we had substantial agreements in that regard.
After our witness was gone and we had agreed to stipulate to
those things, the stipulation did not take place.
Then in addition to that an argument came up which was a very
good argument on the closing argument because we didn't have an
opportunity
to precisely put these things into the record and that's what we should
do, Your Honor, on this occasion.
MR. HULTMAN: Your Honor, -- just a minute. You guys have
had an opportunity.
In addition, Your Honor, there are evidentiary items that are
in these photographs at the moment which have to do with the types of
wounds,
how the wounds are, the relationship of the bodies to the car, the
items
that you can see in those {108} photos 6B, C and D that will be
connected
up and for which I will at least make a disclosure right now since
counsel
wants evidently an indicational disclosure, ammunition pouches, for
example,
shown specifically in these photos that do not show in other photos.
Now if I know you want to stipulate, but I don't have to accept
that stipulation, but it goes and that's my point, Your Honor.
Throughout
this trial we're going to be faced with constant stipulation and that,
that one of the purposes for stipulation, of course, a very legitimate
one, and the Government has agreed to this and will try to continue,
that
we remove issues and matters in order to shorten the trial but the
Government
has no duty, in fact it has an obligation not to stipulate to those
things
which have probative value to a jury and we're going to retain that
right
from the very beginning and I'm going to fight extremely hard to have
that
opportunity because we are concerned with the crime of murder here.
Now we're not talking about photos by comparison, Your Honor,
not those at the immediate place within seconds or two or how they're
found
but we're talking about autopsies where bodies are cut apart and things
of this kind which don't have the same probative value of photographs
of
this kind do and we are taking it one step removed and it's for these
reason,
Your Honor, that the Government must insist that in all instances it
has
an opportunity to take its case forward to the {109} jury for the
probative
values that are involved and only if the Court would find under the
Rules
and under the cases that whatever the item is is of such a nature and
so
shocking in such a way to go beyond the probative value, it is then the
responsibility of the Court and rightly so to make that determination,
that it's going to resolve to get an unfair result far as the jury
consideration
is.
But I submit to the Court, no matter how shocking these photos
here may be, that the jury has a right to see those exactly as they
are.
That is how those bodies were found, when turned over those are the
conditions
that it was in and it has to be, they are items that are involved in
this
case.
MR. LOWE: Let me just make a factual correction.
Mr. Sikma misstates what took place last summer, I think, in
the statement but the defendants last summer were not willing to
stipulate
to the ultimate pathological facts. As a difference we tried to
stipulate
to some of the pathology at what stage we made it or broke it down but
they're, as to the offer to stipulate the ultimate facts, we are
willing
to stipulate everything. If they want to have a stipulation that a
person
was stabbed at a certain place and someone held a certain weapon at a
certain
level and --
MR. HULTMAN: We're going --
MR. LOWE: Let me finish, Mr. Hultman. They're willing to
stipulate as such to who, anything {110} of that and the probative
value
of the evidence being prejudicial is crutial.
MR. SIKMA: Your Honor, with regard to that, I don't think
the jury could understand what we're saying about a pathological
stipulation
if they can't see the photographs to which they're, we are stipulating
about the pathological findings. I don't think they would understand
what
we are talking about.
THE COURT: Which of those photographs do you wish to
support
your pathological findings?
MR. SIKMA: All of them.
THE COURT: All of them?
MR. SIKMA: Yes. But in addition, additional photographs,
not all of them, some of them in the book show the bodies in relation
to
the house and which show the automobiles and certain things like blood
on the automobile, Coler's automobile and how they were found in
relationship
to the various houses which are on Government Exhibit 71.
THE COURT: What were you proposing to do right now?
MR. SIKMA: Right now I plan to show this witness -- I would
offer 6A. I would, well, I guess I could at this time offer 6D, 6,
excuse
me, 6B, C and D also because this is what the bodies looked like when
they
were turned over and that, I think we have already sufficient evidence
to show this but I {111} could wait with that until the, until the
pathologist
or other witnesses who moved the bodies testify.
MR. HULTMAN: There will be no objection to 6A, Your Honor.
This is fine.
MR. TAIKEFF: If I may add one comment, I do not believe
the Government has in any of its argument presented anything to the
Court
by way of saying what is contained within these photographs they intend
to prove.
There is nothing in these photographs that is in dispute. Mr.
Sikma speaks in terms of being effective with the jury, a very general
statement which I suspect is a euphemism for getting a guilty verdict
by
showing them horrible photographs.
I don't know what it is that the Government thinks they will
be inhibited from proving if they don't show these photographs other
than
the fact that it was horrible evidence and I think, Your Honor, the
ultimate
issue in this case is who was standing there when these agents were
shot
and who pulled the trigger, not whether they were shot at close range
and
not whether someone pulled the trigger because we all know that that
occurred
and it's not in contention and it will not be disputed in this case.
MR. SIKMA: On the contrary, Your Honor, we can't show the
things to which we stipulate clearly without the jury being able to see
what we are talking about because it is just {112} not understood what,
you're talking about something, vaguely about someone in a certain
condition.
It just isn't the same. It doesn't have the same effect as
understanding
what it actually is and I can speak in that regard from experience
after
having worked with these photographs from a standpoint of
reconstructing
a crime scene.
The more that you're able to see them, in fact the more there
is available to see for the jury, the more access they have to them,
the
more they will be offended by the, by the effectiveness of them as
well.
MR. HULTMAN: Your Honor, might I suggest that we take a
recess in order to give the Court an opportunity and also the jury a
rest.
I think we're at that time of the morning. That's the only reason I
suggest
it.
THE COURT: Well, we are about due for a recess.
But it is the ruling of the Court that in view of the seriousness
of the offense that is charged in this case that the relevancy of these
four exhibits outweigh any possible prejudice and they will be
received.
{113}
(Whereupon, the following proceedings were had in the courtroom
in the hearing and presence of the jury:)
Q (By Mr. Sikma) First I
will ask you, you have had an opportunity to go to the bottom of the
hill
to observe the bodies of Special Agents Williams and Coler, is that
correct?
A Yes, I did.
Q I want to show you Government Exhibit 6A, B, C and D
and ask you whether or not you recognize these photographs and whether
or not you can tell me whether or not you've seen the circumstances
under
which those photographs were taken?
A Yes, I have.
Q Do they fairly depict what you observed at the time you
observed Special Agents Williams and Coler?
A Yes, they do.
Q Are they photographs of Special Agents Williams and Coler
as you found them at that time?
A Yes, they are.
MR. SIKMA: Your Honor, I would offere into evidence
Government
Exhibits 6A, 6B, 6C and 6D.
MR. TAIKEFF: May I examine on the voir dire, Your Honor?
THE COURT: You may.
MR. TAIKEFF: I think you just said those photographs depict
the agents as you saw them when you arrived at the scene, is that
correct?
{114}
THE WITNESS: Yes, sir.
MR. TAIKEFF: Would you look at photograph 6A.
THE WITNESS: Yes, sir.
MR. TAIKEFF: Is that statement true with respect to
photograph
6A?
THE WITNESS: Yes, it is.
MR. TAIKEFF: Would you look at photograph 6B.
THE WITNESS: All right.
MR. TAIKEFF: Is that true, is that statement true with
respect to photograph 6B? Yes or no?
THE WITNESS: I'd like the question again. I'd like the
question again.
MR. TAIKEFF: Is that statement you made that the
photographs
depict the agents as you saw them when you arrived at the scene true
with
respect to 6B?
THE WITNESS: Not as I found them; no.
MR. TAIKEFF: Is that statement true with respect to 6C?
THE WITNESS: No.
MR. TAIKEFF: Is it true with respect to 6D?
THE WITNESS: No.
MR. TAIKEFF: No objection with respect to 6A, Your Honor.
We object to the others.
MR. SIKMA: Your Honor, I have a couple of further
questions.
{115}
Q (By Mr. Sikma) What is the difference with regard to
6B, C and D?
A Photograph 6B, 6C and 6D are a depiction of the condition
of the agents after they were turned over. They were found facedown.
After
they were turned faceup the photograph 6B, 6C, 6B, 6C and 6D depict the
agents' conditions after they were turned over.
Q Is that the only difference? Was anything else changed?
A No, it was not. They were rolled over on their backs.
MR. SIKMA: I make the reoffer, Your Honor.
MR. TAIKEFF: May I examine further on the voir dire?
THE COURT: You may.
MR. TAIKEFF: Were you present when the agents were moved?
THE WITNESS: To the best of my recollection, sir, I was.
MR. TAIKEFF: Did you have anything to do with the moving
of the agents or the supervising of those who moved the agents?
THE WITNESS: No, I did not.
MR. TAIKEFF: Did you have anything to do with the
determination
as to which views would be taken, which views would be photographed?
THE WITNESS: No, I did not.
MR. TAIKEFF: Did you have anything to do with how the {116}
photography was to be made?
THE WITNESS: Yes, I did.
MR. TAIKEFF: What role did you play in that connection?
THE WITNESS: I wanted, I insured and I had discussions
with other agents concerning an adequate number of photographs of the
crime
scene.
MR. TAIKEFF: And were you the one who determined how many
photographs would be made?
THE WITNESS: Not personally; no.
MR. TAIKEFF: Do you know who made that decision?
THE WITNESS: It was a mutual decision, to the best of my
recollection, between myself and Agent Dean Hughs.
MR. TAIKEFF: Was Hughs the person who made the photographs?
THE WITNESS: These particular photographs, sir?
MR. TAIKEFF: Yes, sir.
THE WITNESS: I don't recall. I'd have to do some research
on that. They were photographs made with my camera and at least two
other
cameras at the crime scene that afternoon.
MR. TAIKEFF: Can you tell us who made the decision as to
whether the close-up photographs would be made? Two of those
photographs
are close-up photographs, aren't they?
THE WITNESS: Yes. At least two, sir. No. Like I say, we
discussed it and we wanted to take as many photographs as we could so
we'd
get an accurate depiction {117} of the crime scene as we found it on
that
afternoon.
MR. TAIKEFF: Turning over the agents, did that introduce
some inaccuracy?
THE WITNESS: We were concerned with the wounds that they
had suffered. That was the primary reason for turning them over.
MR. TAIKEFF: You knew there was going to be an autopsy,
didn't you?
THE WITNESS: Yes.
THE COURT: I believe those questions go beyond the voir
dire as a basis for objection.
MR. TAIKEFF: Yes, Your Honor.
THE COURT: Mr. Adams, did you actually see the bodies
turned
over?
THE WITNESS: Yes, I did, Your Honor.
THE COURT: And those 6A, 6B, 6C, are they a fair and
accurate
portrayal of those bodies as they appeared after they were turned over?
THE WITNESS: Your Honor, it would be 6B, 6C and 6D are
a fair and accurate representation of the bodies after they were turned
over; yes.
THE COURT: The Exhibits 6A, 6B, 6C and 6D are received
in evidence.
THE COURT: You have just experienced an example of the inability
of the Court to keep the time schedule that it sets. I had originally
stated
that we would reconvene at 11:00 o'clock, but some matters came up
which
had to be handled and so we are 15 minutes late.
You may proceed.
(Witness resumes witness stand.)
MR. SIKMA: Your Honor.
Q (By Mr. Sikma) Mr. Adams, I want to go back with you
a little bit -- during the course of the afternoon, the things {134}
you
testified to.
Earlier you testified that Wallace
Little, Sr., had driven into the area of the houses, is that correct?
A Yes.
Q Would you describe the type of vehicle he was driving?
A It was a red and white pickup. I believe it was a Ford.
Q And when he went out, did he have anyone with him?
A Yes. There were at least two individuals seated in the
front seat of the pickup with him.
Q Do you know who those people were?
A No, I do not.
Q During the course of the afternoon were there any sounds
other than gunshots?
A Yes. At some time during the afternoon I heard some loud
explosions.
Q And where did these sounds come from?
A They came -- it appeared to me they came from in behind
the -- south of the three residences, the log house, the white house
and
the green house, referring to Government Exhibit No. 71.
Q To the southeast of that direction?
A Yes. Yes, the south or southeast. I couldn't tell. They
were loud explosions, shaking type of explosions, appeared to be
dynamite.
Q Shaking types, you mean the ground shook?
{135}
A Yes.
Q I had one other question about the warrant that you had
earlier.
When you would go out to make an apprehension, do you have the
warrant with you on all occasions?
A No. We are not required to have the physical warrant
in our possession.
Q You indicated earlier that you had observed the area
of the crime scene where the bodies were found and so on. Were a number
of photographs taken?
A Yes, they were.
Q And are these photographs compiled in any book or
anything?
A Yes, they are.
Q Are you familiar with these items?
A I have examined them, yes.
Q I would show you what is marked as Government Exhibit
54, and ask you whether or not -- I ask you to look at Government
Exhibit
54 for identification, and ask you whether or not you do recall those
photographs
and whether they depict what you observed?
A (Examining).
MR. SIKMA: Your Honor, these matters, most of these
photographs
the Government and the Defendants have stipulated as to certain
foundation.
There are questions of relevancy, but otherwise stipulations have been
made; {136} and we have a written stipulation prepared which has not
been
signed by all counsel.
MR TAIKEFF: We have so stipulated, your Honor, and we will
sign the written stipulation.
THE COURT: Very well. This is as to the foundation?
MR. TAIKEFF: Yes, that's correct, your Honor.
THE COURT: Thank you.
Q (By Mr. Sikma) Do you recognize these photographs?
A Yes. The photographs depicted in Government Exhibit No.
54 are a fair representation of the crime scene as we found it.
MR. SIKMA: I would offer into evidence Government Exhibit
54.
MR. TAIKEFF: May I examine briefly, your Honor?
THE COURT: You may.
MR. TAIKEFF: Agent Adams, you can recall, can you not,
the contents of Exhibits 6-a, b, c and d which are already in evidence
as photographs?
THE WITNESS: Yes, sir.
MR. TAIKEFF: Are there any duplicates of those photographs?
THE WITNESS: Yes, I believe there are, sir.
MR. TAIKEFF: To the extent that they are duplicates, your
Honor, I object.
THE COURT: Are there duplicates of the photographs?
MR. SIKMA: Yes, your Honor, there are duplicates; {137}
but as a matter of using them, we can take them out insofar as later on
going to the jury, but it is easier with regard to some witnesses who
will
testify to these items if we may maintain some of the photographs in a
book and some independently as separate exhibitis for identification
purposes.
MR. TAIKEFF: Perhaps, your Honor, it would be simplest
if Exhibits 6-a, b, c and d were withdrawn, and the entire book taken
into
evidence; and then there would be one complete set of photographs.
MR. SIKMA: We would withdraw them -- we would like to use
them for identification at certain times.
MR. TAIKEFF. We would have no objection.
MR. SIKMA: You are indicating to withdraw the duplicates,
is that correct, in the album?
MR. TAIKEFF: I was suggesting that the easiest thing would
be to put the entire album in, withdraw the others from evidence; and
they
could be used for identification purposes because it would be more
convenient
to handle the individual photographs than the entire album.
MR. SIKMA: Your Honor, we would rather withdraw the
duplicates
from the album because the others are exhibits and we will be using
them
for identification purposes.
THE COURT: Exhibit 54 will be received with the {138}
exception
of any pictures in that exhibit which are duplicates of 6-a, 6-b, 6-c
and
6-d.
(Plaintiff's Exhibit No. 51, having been previously duly marked
for identification, so offered in evidence, was received.)
Q (By Mr. Sikma) O.k. Would you go through and describe
on each page of that exhibit what the exhibits portray?
MR. TAIKEFF: Objection, your Honor. The photographs are
in evidence, and they speak for themselves.
MR. SIKMA: Your Honor, I think that the witness should
tell what each of these exhibits are and also should be able to
testify,
to identify them to the jury.
THE COURT: The witness may testify relative to the identity
or what the pictures are. Otherwise the pictures would be meaningless,
it would seem to me.
MR. TAIKEFF: That is not what I was I objecting to. I
thought
we were going to take a photograph at a time and give a detailed
description.
In view of the observation of many years ago that a picture speaks a
thousand
words, it is not necessary.
MR. SIKMA: I propose to have him tell generally for the
jury, your Honor, what the pictures are so that the jury would be able
to later look at the photographs and know what he is talking about.
MR. TAIKEFF: No objection, your Honor.
{139}
THE COURT: That procedure will be permitted, and you may
proceed.
Q (By Mr. Sikma) Would you do that, Mr. Adams?
A Referring to Government Exhibit No. 54, Photograph No.
1 is taken from the rear of Agent Coler's car. It shows Coler's car as
it was found and the two bodies of the two agents alongside the car.
Q Would you indicate where it was found and where that
picture was taken from, by pointing to the map there, 71?
A Agent Coler's
car was found in this location (indicating). The bodies of the two
agents
were found immediately to the
northeast of the car. The car was facing toward the direction of the
houses,
the log house, white house, green house on Government Exhibit No. 71.
This
photograph was taken from the rear of the car looking in a southerly
direction.
Q Would you go to Page 2, please?
A Again referring to Government Exhibit No. 54, Page 2
is blank. Page 3 is a duplicate.
Q And which one is that?
A I believe 6-a.
Q Thank you.
A Photograph No. 4 --
Q (Interrupting) Would you remove that photograph of 6-a
then?
A Photograph No. 4 is again of Agent Coler's car in the
{140} condition we found it on that afternoon, and it shows the remains
of Agent Williams and Agent Coler. It is taken from the northeast side,
from just about where the arrow is that points from SA Williams and SA
Coler, toward the car.
Photograph No. 5 is a duplicate of Government Exhibit 6-d as
in "David".
Photograph No. 6 is a duplicate of Government Exhibit No. 6-b
as in "boy".
Photograph No. 7 is a duplicate of Government Exhibit No. 6-c.
Photograph No. 8 is a photograph of Agent Coler's car as taken
from the -- essentially the corral. That would be the southwest of the
area marked Coler's car on Government Exhibit No. 71.
Photograph No. 9 is a photograph of the rear area of Agent
Coler's
car -- shows the bodies of Agent Coler and Agent Williams, looking in a
southeasterly direction toward the residence.
Photograph No. 10 is a photograph of the front end of Agent
Coler's
car taken from more or less an easterly direction from the area marked
Coler's car on Government Exhibit No. 71.
Photograph No. 11 is a photograph of the rear window of Agent
Coler's car taken from the left side of the car, left rear side of the
car.
Photograph No. 12 is a photograph of Agent Coler's car, {141}
and that would be looking in the direction of the tan and red house as
depicted on Government Exhibit No. 71. It would be again back from
where
there would be a small corral there then.
Q On that photograph what is the condition of the trunk
of the vehicle?
A The trunk lid of Agent Coler's car was open when we found
it.
Q This was taken from the side. Would you point out to
the jury, by holding the photograph up in front of them so they can see
where it is, and what the car is, so they will recognize this?
A I might continue, that Photograph 13 appears to be an
enlargement of Photograph No. 12; and this is the side view of the car.
The trunk is open, and you can see through the window the driver's door
is open.
Q O.k. On the photograph on Page 1, would you go back to
the photograph on Page 1, and also hold that up so that the jury will
know
the general area -- yes?
A This is the -- as I stated earlier, from the rear of
the car. You see the trunk door is open, the driver's door is open, and
you see the remains of the two agents on the side.
Q Would you hold it in various directions so that the jury
is able to see it?
A (Indicating). As I stated, it appears Photograph No.
13 is an enlargement of Photograph No. 12.
{142}
On Page 14 there are two photographs, both depicting the rear
of Agent Coler's car, and looking up toward the residences marked "log
house, white house and green house" on Government's Exhibit No. 71.
On Page 15 there are four photographs. A is a close-up photograph
of the trunk interior of Agent Coler's car. Photograph B is a -- it
appears
to be the windshield, a close-up of the windshield of Agent Coler's
car.
Photograph C is a photograph of the green house which is the far right
house in the group of three houses on Government Exhibit 71. This shows
also the remains of Joe Stuntz, and Photograph D is a photograph of a
revolver
which was -- and it is on a blanket or quilt, which was taken or was
with
the remains of Mr. Stuntz.
On Page 16 there is a -- it is a photograph of a -- appears to
be a hubcap, and it has several spent cartridge casings in it.
Photographs B, C and D are of Mr. Stuntz, and it depicts he has
a jacket with the insignia "FBI" on the pocket. It is a green military
fatigue type jacket.
The photograph on Page 17, there is one photograph, and it is
of the white house, the Jumping Bull residence which is in the middle
of
the three residences on Government Exhibit No. 71.
On Page 18 there are three photographs. A is the -- A {143} and
B both appear to be garments that were found in the vicinity of the
crime
scene, and Photograph C is the checkbook and some other papers
belonging
to Agent Ronald Williams.
Q In the afternoon did you have occasion -- you indicated
earlier that you had occasion to go to the area of the residence. About
what time of the day was this that you went to the residence?
A I estimate the time to be about
6:00 p.m., when we went into the residences.
Q O.k. Was anyone there other than law enforcement officers
when you arrived?
A No, there was not.
Q Did you -- you indicated that on one of the pictures
you observed a -- the remains of a Joe Stuntz?
A Yes.
Q Would you describe to the jury where he was -- where
you found him in relationship to Government Exhibit 71?
A Referring to Government Exhibit No. 71, Mr. Stuntz was
found right on the northeast corner of the green house.
Q O.k. Now, there is an indication on the map there, is
it, that says "body of Joseph Stuntz"?
A Yes, that's correct. That's printed on Government Exhibit
No. 71.
Q And would you indicate how his body -- what position
it was in?
{144}
A His body was face up, and to the best of my recollection
his head was facing in a northerly direction.
Q And what was he wearing at that time?
A He had on -- to the best of my recollection he had levi
trousers on, and he had one of our FBI Squat jackets.
Q Did it have anything to identify it as FBI?
A Yes, it did on the pocket. In the vicinity of -- the
left-hand side, in the vicinity of the pocket it had the letters
stenciled
"FBI".
Q Can you state whether or not you observed any firearms
in this area of Joseph Stuntz' body?
A Yes. He had a revolver, and there was a 3.30 rifle in
the immediate vicinity of his body.
Q Where was that rifle in relationship to his body?
A To the best of my recollection it was on his left-hand
side. I don't really recall that, but it was right alongside the body.
Q Approximately how long did you stay in the area of the
-- in the area of the houses?
A I was only there a brief time, and then I went down to
the vicinity of the area of Coler's car and the remains of the two
agents.
Q Now, I would direct your attention to earlier in the
afternoon. Did you have occasion to see any other persons in the area
to
the southeast and across Highway 18 to the east, {145} any other
persons
in that vicinity?
A Yes.
Q Approximately what time was that?
A It was about a quarter
to 6:00.
Q And would you describe for the jury what you saw and
how it came about that your attention was directed to that time and
place?
A Yes. I received a radio communication over the State
radio that there were some individuals fleeing out of the south --
well,
out of the south end of this wooded area; and I at that time heard
gunshots,
appeared to be firing. I looked up and saw some individuals fleeing up
the side, across this area (indicating), up on to the south.
Q And how many did you see?
A I personally counted six or seven. The radio
communications
said there were 11 or 12, or 11 to 15, I don't recall. I just glanced
up
there and happened to see six or seven people running out of the area.
Q Were they carrying anything?
A It was about a mile and a half or so away. I didn't pay
too much attention to them because we were attempting to secure the
residences
at that time.
Q Where did you go after you left the residences?
A After I was in the vicinity of the residences and Agent
Hughes was going to secure the crime scene area, I, along with {146}
some
other law enforcement people, decided to sweep the wooded area to the
south
of the residences and attempt to locate the persons who were the
perpetrators
of the crime.
Q Is there anything in the wooded area -- describe the
wooded area, first of all, for the jury, if you will.
A It is heavily wooded. There is a lot of underbrush in
there, and through the area, which is marked "wooded area". The White
Clay
Creek flows in a zigzag fashion. It empties into Oglala Dam which is in
the northwest area, and it goes back and crosses the highway in the
southeast
area.
Q What is the elevation of the ground at the treeline or
just below the treeline on the map?
A Again the area drops off into the creekbed. There is
a plateau in the vicinity of Agent Coler's car to the -- where it is
marked
"plateau", and it rises up to Highway 18; and similarly, to the
treeline
the area again drops down to the creek area.
Q How far does it drop down to the creek area, is it a
sudden drop?
A In places it is rather severe, and I would estimate it
to be about 10 feet. It varys throughout the location. Some places it
is
deeper, and other places it is not so deep.
Q Is it fair to state -- you can tell me whether or not
it is fair to state -- if you are in the wooded area you can't see out
onto the plateau or up higher?
{147}
A That's correct. It is heavily wooded in most of the
areas,
and it is difficult to see in or out.
Q Approximately how long did you stay in the wooded area,
and tell us what you did while you were in the wooded area?
A There were 10 or 15 law enforcement officers with me.
We left the area, entered into the wooded area. As I said, the creek
zigzags
across the wooded area, referring to Government Exhibit 71.
Q You entered where, what is on the map that would indicate
approximately where you entered?
A To the best of my recollection we just came down from
the three houses here as indicated and into the area right here
(indicating).
Q That's at the top of the plowed field?
A Yes, little area marked "plowed field" here (indicating),
which is southwest of the three residences. To the best of my
recollection
we entered into that immediate vicinity there and proceeded down the
creek
area.
Q And what, if anything, happened while you were there?
A We spread out through here (indicating), and proceeded
to work this area. Somewhere in this area here (indicating) -- I don't
know the exact location -- I crossed the creek several times with other
individuals where the water was about waist deep, and one time when I
was
crossing the creek I slipped and received a severe cut to my hand. At
that
time they decided {148} that I should have medical attention because it
was bleeding quite severely, so I left the group and proceeded to what
I thought to be Highway 18.
Q Which direction did you go?
A I went more or less in an easterly or northeasterly
direction.
From my orientation I had when I was in the trees, I felt that the
Highway
18 would have been in a northeast direction and so I headed that way.
Q O.k. Now, you were in the area there which is a larger
square "plowed field", is that correct, to the west of that?
A Yes. I was past that because when I walked out, I walked
out through the trees and I came out in this vicinity right here
(indicating).
Q In that vicinity where you are pointing is SA Williams'
car?
A Yes, that's correct, so indicated on the map.
Q O.k. Tell the jury what you observed as you were going
through the area back to Highway 18.
A As I was leaving the wooded area here (indicating), my
attention was drawn as I proceeded out of the area to some loud radio
transmissions.
Q And tell the jury what happened.
A I came into this area here (indicating), and I first
observed a red and white van parked in the area. Then I observed some
tents
in the area. I saw a green car parked {149} behind the van. I didn't
know
what it was, or if anyone was there. From an examination of the area
from
the edge, it appeared there was no one around there. I then proceeded
around
here (indicating), and found Williams' car.
Q O.k. You are speaking then of the area which is marked
"tents" and it is a cross-thatched area on the upper right-hand corner
of the map in the wooded area, is that correct?
A Yes, on Government Exhibit 71.
Q O.k. Would you describe to the jury what the red and
white van -- what the condition of it was?
A It was parked in front of the green car and facing --
it was on a little road in there (indicating), and it was facing in a
west
or southwesterly direction. The back gate of the van was open, and
there
was a lot of items stacked in the back of the van.
Q O.k. You have indicated there by a movable red magnetic
object, is that correct?
A Yes, that is correct.
Q O.k. The other object which is green, which is directly
behind it, is the green car that you observed?
A Right. On that particular afternoon I only recall --
I don't remember it to be a Ford. All I remember, there was a green car
parked behind the red and white van.
Q Would you recognize it if you saw a photograph of it?
A Subsequent to that I found the same car in the same {150}
location, yes.
Q Would you describe -- tell the jury whether or not you
saw any items in the red and white van?
A Yes. There were several items, a lot of various items
stacked in the rear of the van. I didn't at that point, didn't pay too
much attention. I was concerned if somebody was in there, and I didn't
scrutinize in any -- spend any time determining what was in the back of
the van.
Q Would you describe where the other automobile, you said
you heard the radio, the sound of a radio. Tell the jury where that
was.
A There is a rise out of the treeline up on another plateau
here (indicating), and Agent Williams' car was parked right up at the
edge
of the treeline, visible from both these two cars and the tents that
were
situated in the area.
Q And you say from back in the area of the tents you could
hear the radio communications?
A Yes. They were on rather loud. The windows were down
or either shot out. You could hear the radio transmissions for some
distance.
Q Was there a door open on the car?
A To the best of my recollection, the right front door
may have been open, yes.
Q And would you further describe the car as you observed
it?
A There were numerous bullet holes in the car all the way
{151} around the car. The glass was shot out. The car had numerous
bullet
holes in it. There was on the front seat floor -- his briefcase was
there,
and the papers were strewn around; and in the back seat his clothing
was
strewn around, and possibly a suitcase had been opened.
Q Are there photographs of this automobile which will
depict
what you observed?
A Yes, there are.
Q And its general condition?
A Yes.
Q Are there photographs also of the area of the tents which
you were familiar with?
A Yes.
Q I will show you first what is marked Government Exhibit
55. I ask you to look at Government Exhibit 55.
{152}
Did you have occasion on the following date to go the area which
is marked "tents" on Government Exhibit 71?
A Yes. I did.
Q And when you returned to the area that following day
were things in the same substantially, or in the same condition that
you
found them the day --
A It appeared to be in the exact same condition as when
I left it that night before.
Q What did you do as far as the car was concerned, Special
Agent Williams' car? Did you do anything with it?
A Yes. I went, as I left the area I went to the driver's
side of the car, reached in, turned
the keys off which activated, which would deactivate the radios and
then
I left the area.
Q In the Government exhibit for identification which you
have in front of you, does that, do those photographs represent what
you
observed in your investigation of the area of the tents on the
following
day and on the day before?
A Yes.
Referring to Government Exhibit 55, they depict the area as
I saw it initially on the night of the 26th and again on the early
morning
hours of the 27th of June, 1975.
MR. SIKMA: Your Honor, I would offer into evidence
Government
Exhibit 55.
MR. TAIKEFF: May counsel have a moment to look at it, {153}
Your Honor.
THE COURT: Yes.
MR. TAIKEFF: Your Honor, there are many photographs in
here. Most of them are not objectionable from the point of view of the
defense. A few are.
Does Your Honor wish at this time to hear counsel or should we
reserve that for a convenient time when the jury is not present?
THE COURT: Are you able to identify the photos which at
this time you may have some objection?
MR. TAIKEFF: Yes. I am.
THE COURT: Would you state that for the record.
MR. TAIKEFF: Yes, Your Honor. I would.
Yes. I think it would be appropriate, Your Honor, if we
approached
the side bar even for the identification purposes.
THE COURT: You may approach the bench.
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF: Our objection, Your Honor, I want to state
that if we identify it when we object and Your Honor overrules our
objection,
the jury would then specifically know what our concern was.
THE COURT: Very well.
MR. TAIKEFF: Your Honor, on page 13 there are two
photographs
marked C and D.
{154}
MR. LOWE: The picture with the three, maybe they can
explain
--
MR. TAIKEFF: Well, let's pass that for the moment.
Those two photographs depict homemade explosive devices.
On page 15 there are four photographs which are of a similar
nature or relate to those devices.
On page 16 there are four more photographs depicting those
devices.
On page 17 there are two photographs which are A and B depicting
those devices. I can't tell what --
MR. LOWE: That's a compass and that's a canteen unless
you want -- can you represent what this is?
MR. SIKMA: I believe it is a flare.
MR. TAIKEFF: Could you tell us what photograph B on page
19 is?
MR. SIKMA: Yes. That is from the area just across the creek
by where the individuals, I believe the evidence will later show, went,
are cartridge casings which are found and marked and I don't have on
the
top of my head the exhibit number.
MR. TAIKEFF: They're not explosive components?
MR. SIKMA: No. They are not. It's an empty shell casing.
MR. LOWE: I think we should add a general statement {155}
to the extent that any of these pictures depict such an explosive
device
that are not immediately, some of these pictures are not immediately,
we
would object to them at least so far as they describe in such terms
MR. TAIKEFF: I think we identified them all to Your Honor.
Our position is that they're not relevant to any of the charges
in the indictment.
MR. LOWE: There's no showing that they were used, there's
no showing that the defendant had any knowledge that they existed in
the
camp.
MR. TAIKEFF: It makes no difference. Even if he did, Your
Honor, the point is that they're not relevant to any of the issues in
the
case and in any event they would constitute proof of a connection of
another
crime if the jury should connect them to the defendant, a crime not
charged
in the Indictment and they are prejudicial.
MR. SIKMA: Your Honor, the defendants have indicated
clearly
that they intend to show that the defendant was living in this area,
that
he was in the area on the afternoon in question, that he's agreed that
they were there but they were there for a friendly purpose, a, to help
various people.
It certainly does go to show the state of mind, the defendant
is in this area where these are filled with gasoline and the record
will
show they are Molotov cocktails, common term, {156} and I think that if
the state of mind of the defendant is going to come up, that these sort
of things are certainly relevant to the issues before this Court. They
do show his state of mind.
Molotov cocktails are generally not used in defensive means to
protect oneself. They are generally used more in an offensive manner
than
a defensive manner to protect someone from massacre or something of
this
nature and therefore we would think that they are very relevant and
they
are also relevant to show the place as it was left, found at the time
the
incident occurred or shortly thereafter.
THE COURT: What was your last statement?
MR. SIKMA: They show the general nature and condition of
the area as it was left immediately after the incident.
MR. TAIKEFF: There is one point I'd like to respond to,
Your Honor. The Government has articulated our position in a way that
does
not describe our position.
We do not take the position that the defendant and his associates
were unarmed or that they were peaceful people in a way that they would
not touch any instrumentalities or violence or guns or anything of that
sort. Quite the contrary.
I can issue to Mr. Sikma and I represent to the Court that our
proof will be that our client and his fellow workers were heavily armed
and there will be no effort to deny that or to adduce proof to the
contrary
by the defense.
{157}
The point we're making is that within the spectrum of
instrumentalities
there are certain instrumentalities, the possession of which is a
separate
federal crime and since there is going to be and there's already on the
record an admission of being heavily armed it is not necessary for the
Government
to prove the contrary because we're going to admit to the heavy
armament
but to introduce that instrumentality which is a separate crime under
Federal
law is prejudicial if it is relevant to be in with and that's proof of
another crime that is not related to the charges in this Indictment in
any way.
THE COURT: Well, how is it prejudicial if the jury doesn't
know that it's proof of another crime?
MR. LOWE: Well, it is because it tends to indicate
something
-- first of all bypass for the moment whether it's relevant to the
charge.
Unless there is, some mention is created where Mr. Peltier, that he
knew
they were there, Mr. Peltier will be unfairly charged with the
knowledge
of them.
Now if you are going to introduce a witness that says that
Leonard
Peltier knew they were there and, but I ask for an offer of proof from
the Government that they intend to introduce such testimony and tell us
who it is because I think that might change the Court's ruling on it.
But it's highly prejudicial. The word Molotov cocktail means
a lot of terms but I think it's one of the scariest {158} terms in the
English language for most low-class people and Mr. Sikma is the only
one
who contends that it's primarily offensive and not defensive.
{159}
In fact in the history they've been defensive. For example, in
history the Russians came in with their tanks and they used them. In
almost
all of history they've had guerrilas who were resisting the strong
force
but in any event it's simply not, it's inflammatory and at least the
prejudicial
value outweighs the motive value, particularly where I think we're
making
it clear to Your Honor that the only issue that's going to be in
dispute
in this case is what the identity of the actors was out in the Pine
Ridge
area where these agents met their deaths and these can not be probative
of these facts.
MR. CROOKS: Well, Your Honor, it seems to me that the very
fact that the defendant is objecting to this proves the relevance of
the
thing, that counsel is, counsel is in effect conceding with us that it
is relevant. Otherwise they wouldn't be concerned about it and as Mr.
Sikma
said, we are talking in this case about state of mind and that's going
to be the defense. They've indicated that numerous times already on
voir
dire and on opening statement and certainly the fact that these items
were
items which were in the place where he was living, which he would have
had access to is very definite and the specific relationship to his
state
of mind to refute in effect any argument that this is more or less a
peaceful
camp.
We're talking about, we're talking about a camp that's armed
with numerous deadly weapons and that's the way the camp was left and I
think it certainly is a factor which the jury can {160} consider in
determining
whether or not they were reacting to a quote, unquote, "self-defense
initiative"
or whether they were simply there in an aggressive posture.
This has a very direct bearing on state of mind.
MR. HULTMAN: Your Honor, might I enter just one
sentence.
Counsel in opening statement indicated with a number of statements what
he expected to prove, that there was a peaceful encampment.
MR. LOWE: I did not say that. I specifically avoided that.
MR. HULTMAN: Let me refer to it.
MR. LOWE: Well, at least be accurate.
MR. HULTMAN: He specifically referred to the fact that
there was some types of bath activity, there was a number of other
things.
This proof goes to clearly refute the primary propositions that
counsel has indicated are a critical part of their defense and the
Government
certainly has the opportunity and the right and it's relevant for that
reason if no other reason.
MR. SIKMA: It's also there, to say that they're simply
armed and not show how is misleading. It's misleading.
MR. LOWE: You can show all the guns you want.
MR. SIKMA: Well, of course, but they weren't only {161}
armed with guns.
MR. LOWE: Are you making an offer or proof that anybody
used one of those on that day? Will you make --
MR. SIKMA: No. I don't need to.
MR. LOWE: The tent area is about two hundred yards long
and a hundred yards wide. This is not a little patch ten yards by
twenty
yards with a couple people in pup tents.
To attribute the knowledge of information or items in one part
of that forty thousand square yard area to Mr. Peltier without evidence
would be the worst possible form of prejudice without any basis of fact
so that even if Your Honor says, well, it would be relevant, if you
connected
to Mr. Peltier, at least an offer of proof how they're going to connect
it to Mr. Peltier or to somebody else in this case. They can always at
least offer --
THE COURT: How will you be connecting this defendant?
MR. SIKMA: Your Honor, one way and a couple of ways. Number
one, I think our evidence will show that he was a leader of the people
that were here; number two, his fingerprints are all over the area on a
number of items and I don't know --
MR. TAIKEFF: On any of these items?
MR. SIKMA: I don't know specifically but these were left
right out in the open. They were laying out in the open when they were
found just as they're seen there and as a result of this he was in that
area that day, slept there for, stayed {162} there for days and it
would
be from the photographs, looking at all the photographs it would be
inconceivable
that he would, he would not know that these items were here if he was
in
the position that he maintains, he was one of the leaders there.
MR. TAIKEFF: It shows a Cola 6-pack which overall is not
more than twelve by seven by ten inches high in an area of several
hundred
yards by --
MR. SIKMA: No. Wrong.
MR. TAIKEFF: We're talking about --
MR. LOWE: That's what it depicts, your exhibit, Mr. Sikma.
MR. SIKMA: No. Look at the photographs and you'll see --
MR. LOWE: Look at your exhibit you've introduced and you
vouched for the foundation or the accuracy within five per cent.
MR. SIKMA: We'll check with the witness.
MR. TAIKEFF: This is the entire objection we're talking
about, Your Honor, which is depicted on page 13 in photograph D. It's a
very small object. We don't know who left it there, which individual or
even whether that individual was a member of that encampment.
If any, any other person leaving the area in passing through
that zone, there has already been testimony and it will be elaborated
upon
in cross-examination that there were large {163} numbers of people
including
the number of people who are living in the, or staying in the area who
were seen coming through or leaving the area. We don't know who put
that
there and whether that person was a member of the community, if I can
call
it that, that was living in tent city and just because it was there
they
wanted to introduce it and it is a highly prejudicial thing to show to
the jury, not in any way connected with the evidence offers which are
under
scrutiny.
If it were charged or alleged that in the process of attacking
the agents such devices were used against the agents, then most
assuredly
that would be proof, that would be quite relevant and quite significant
but the mere presence of that in that location, because the defendant
had
stayed there, is not a basis for offering it.
MR. SIKMA: There were explosions there also, Your Honor,
some other types of things and there will be other evidence that the
explosions
came from this area.
THE COURT: I will reserve ruling on the pictures to which
objections have been made and will rule on it and they may be reoffered
later when there's been some --
MR. LOWE: In rebuttal, Judge, we may open the door to them.
That's another possibility.
THE COURT: At this time I'm reserving ruling.
MR. SIKMA: May I retain these in the book?
MR. TAIKEFF: We have no objection.
{164}
THE COURT: You may retain them.
(Whereupon, the following proceedings were had in the courtroom
in the presence of the jury:)
THE COURT: Exhibit 44 with the exception of photos 13,
15, 16 and 17 is received and the Court reserves ruling on the photos
on
the pages enumerated.
{165}
Q (By Mr. Sikma) Mr. Adams, would you take this book and
set the pages which are indicated, I believe it's 13.
THE COURT: 13, 15, 16 and 17.
Q (By Mr. Sikma) 13, 15, 16 and 17. Indicate what you
observed
on those pages in the book.
A Referring to Government Exhibit No. 55.
Q Would you also on these larger photographs make it so
that the jury can get an idea what you're talking about then.
A On the photograph on page 1 is an aerial photograph
through
the trees into what is referred to on Government Exhibit 71 as the tent
area. If you look closely you can see part of one tent there. Likewise
to the photograph depicted on page 2.
The photograph depicted on page 3 is a teepee, one of the tents
I referred to that were located in the tent area.
Photographs on 4 and 5 are also of the tents which we found in
that area.
The photographs on page 6 and 7, this is of the tents in the
general area. This is looking into the interior of the teepee, I
believe,
at least one of the tents in the tent area.
The photographs on page 8 is looking into the interior of one
of the tents.
On page 9 there are four photographs so identified by the letters
A,B,C and D. They are all of the tents in the general area there.
The photographs on page 10 marked A, B, C and D are {166} again
photographs taken in the tent area. There was one little red and white,
or orange nylon tent in photograph A. There's a wall tent in photograph
B and photograph C was a cooking area, fire pit and a, appears to be
the
making of a shade, a structure they use, put poles up on stilts, lay
tree
boughs across the top and it keeps the sun from penetrating underneath.
The photograph identified by the letter D is a, appears to be a lodge
type
tent. This was located some short distance from the other tents and was
by the creek.
The four photographs on page 11, there are three photographs,
A, B and C -- excuse me, A,B and D are photographs of tents. The
photograph
marked C is of the green Ford automobile located in the tent area and
some
items that were found on the hood of that car.
The photograph on page 12, four photographs marked A, B, C and
D. Photograph A and C are photographs of some rifles and weapons we
found
in the vicinity of the tents. Photograph B is again of the green Ford
automobile
and photograph D is a photograph of a backpack.
THE COURT: On page 13 I believe the objection went only
to C and D.
A All right.
Photographs A and B on page 13 are of, photograph A is of some
weapons that were stashed in the underbrush there. Photograph B is a
photograph
of a knapsack or some kind of a {167} backpack or bag that has some
ammunition
in it.
THE WITNESS: 14 was all right, is that correct, Your Honor?
THE COURT: There was no objection to 14.
A On the four photographs on page 14 marked A,B,C and D
are all of rifles that were recovered in some of the underbrush area.
Q (By Mr. Sikma) Would you tell where those rifles were
found generally?
A I believe these pictures depict rifles that were found
in the, in the trees between the tent area and the creek, the best of
my
recollection.
15 is -- on 17 I guess.
THE WITNESS: The whole page 17?
THE COURT: The objections on 17 went to A and B.
THE WITNESS: All right.
A The photograph marked C and D on page 17, photograph
C is a stick of dynamite that was found in the area and photograph 2 is
a, D is a photograph of the canteen that was found in the area.
18 is again, there are three photographs, A, B and D. A is is
the markings on one of the tents in the area, B is the photograph of
the
general area showing the teepee and photograph D is on the neck scarf,
or appears to be a red handkerchief, neck scarf, something, and some
items
of clothing {168} which were found away, found in an area leading from
the tent area.
On page 19 there are four photographs. Photograph A is a red
shirt that was found in the area. Photograph B is a cartridge casing,
appears
to be a 44 caliber which was found in the area. C and D appear to be a
couple address books.
On page 20 there are three photographs, two marked with the
letter
A and the one B. The first one is, it shows the name Joseph B. Stuntz
on
a Delta Airlines, some kind of a Delta Airlines card. It has a
photograph
and also marked A appears to be that of Mr. Stuntz and on photograph B
marked B is a selective service card for Joseph B. Stuntz.
The photograph on page 21, here, the big photograph, is of two
new tires that were taped together that were in Williams' car that were
recovered out of the back of the van.
Q They were found where?
A In the back of the red and white van.
The photograph on page 22 is a shipping tag or an address tag
that were on the tires that apparently was placed on there by the
office
in Minneapolis and the tires have been sent to us in Rapid City.
Q Whose tag is that?
A It says, "Special Agent, FBI, U. S. Courthouse, 260
Federal
Building, 515 Ninth Street, Rapid City, South Dakota." That would be
our
office in the courthouse in Rapid City.
{169}
Photograph 23 is again of the green Ford with the items as found
on the car.
Q Now is that the way you observed, can you tell whether
or not that's the way you observed those items on the 26th when you
went
through there in the late afternoon?
A As I stated, I saw the car in there and I know there
was a rifle on the hood of the car and as far as identifying the other
items on that night, that's as far as I could go.
The photographs on 24 is of a Commando Mark 3 which was found
under bark and brush in the vicinity of the tent.
The photograph on page 25 is of, again of some kind of canvas
type bag which contains some ammunition.
Both photographs 26 and 27 are again photographs of some rifles
which were found in the vicinity of the tent.
Photographs on 28 is a stick of dynamite. This was a compass
that was placed there by the agent or one of the agents that was taking
the photograph showing the size of the stick.
The other one, photo 29 on page 29 is a canteen that was found
in the area.
Photo 30 is again of the red handkerchief, possibly neckerchief
type thing and some other items of clothing that were found in the
area.
Photograph 31 is a picture of the red and white van. This
photograph
was taken after the vehicle was removed from the tent area and in a
compound
in Pine Ridge. It's B & U Compound, the {170} location.
32 and 33 are again photographs of the van, 32 being the front
end of the van with the license plates, 33 is a side shot of the van.
34 again is a side shot of the van.
35 has six pictures. Photograph A is the front of the van,
photograph
B the rear of the van, photograph C, D, E and F are all photographs of
items removed from the rear of the van. It appears to be some kind of
electronics
gear.
36, six photographs. Photograph A is again of the rear of the
van with some of the items of electronic gear in the van. Photograph B
is the rear of the van, photograph C is the side of the van and the
same
way with D, E and F. Photographs of the side of the van.
On page 37 all six photographs are of items removed from the
rear of the van. There is electronic gear again, the photograph of the
tires that were in the back of Ron Williams' car.
Page 38, one photograph marked A of tires belonging to the FBI.
Photograph on page 39, photograph A, F and I, also E are of
various
shots of Agent Williams' car as it was found on the 25 and 26th of
June,
1975.
MR. TAIKEFF: Your Honor, may we approach
the bench?
(Whereupon, the following proceedings were had at {171} the
bench:)
MR. TAIKEFF: Your Honor, the application is made upon the
assumption that the misstatement of fact by Mr. Sikma was inadvertent
and
not to be interpreted otherwise.
When we went through the book of photographs which the agent
has just finished describing, I asked Mr. Sikma what a certain object
was
and he said it was a flare. I believe indeed he thought it was and I
thought
it was but I wasn't sure, and it may very well be. As a result it now
appears
that that object which apparently appears in two places was a stick of
dynamite. Now under the circumstances I think it would be appropriate
the
government would recognize its error was the basis for that piece of
testimony
and if Your Honor would instruct the jury that the witness was mistaken
and that government concedes what he thought was dynamite was a flare
and
leave the matter at that.
MR. SIKMA: Your Honor, the defense counsel has seen these
pictures and had opportunity to look at them last night and go over
them.
It's agreed that I made a mistake on it. He's testified already that he
heard dynamite being exploded.
I wasn't sure what it was. It was a mistake on my part but I
don't think -- I think I can get experts to come in and show there was
dynamite there.
There is one thing with the defendant saying, "We'll admit that
these defendants were armed," but throughout the {172} entire
proceedings
they're trying to leave a false impression with this jury. The true
impression
is they weren't merely armed, there was dynamite there, there were
Molotov
cocktails there.
MR. TAIKEFF: Your description can be heard.
MR. SIKMA: I think it's important there were hand grenades
in the various areas in possession of people involved in these events
and
I think that it's important to note and make the jury aware of what the
state of mind of these individuals was.
We're not contending that one individual committed this offense,
we're contending that the defendant aided and abetted in that offense
and
that he was a part of a conspiracy involved in this event. I think that
these things are relevant. I don't think this, I think there is
sufficient
showing at this time that the defendant, and from the proffer made by
the
defense counsel that this man, they objected to what I said in opening
statement that he lived there a couple weeks, indicated that he had
lived
there for a couple months instead of a couple weeks.
We have seen the number of tents there are. I'll go into that.
It wasn't a city of tents. There were about, I think, five or six tents
there at the very most.
Now I think the evidence will show later on that there {173}
were only about at most ten people living there. Many of the witnesses
who lived other places will indicate they didn't go down there. It
wasn't
something that was generally known, something that surprised this
witness.
He didn't know it was, so for this reason I would say that there is
absolutely
no prejudice and it's essential this information come before the jury
in
light of the lines that have been drawn by defense counsel in their
presentation
of this case.
THE COURT: On the basis of the testimony that there were
explosions, what objection do you have to this evidence, this testimony
standing?
MR. TAIKEFF: The explosions may have occurred but that
doesn't tell anyone what the source of those explosions were.
THE COURT: It would be a reasonable inference that dynamite
would be a source.
Your objection is overruled.
MR. LOWE: I'd like to make a record. You said you would
reserve ruling on a motion and that this testimony was brought out in
direct
violation of this ruling. I think that's a bad precedent to set this
early
in the trial that Counsel would be insensitive to being sure that would
not happen.
THE COURT: I reserved ruling on specific pictures to which
objections were made.
MR. LOWE: Yes, sir. I specifically objected to any {174}
other pictures which depicted explosive devices and were not readily
identifiable
as such.
MR. TAIKEFF: Specifically had the answers been correct,
I most assuredly would have included that picture in the list of
pictures.
That was the purpose of asking that --
MR. LOWE: I wonder if we could offer proof. Maybe it is
a flare.
MR. SIKMA: We'll go into it later with another witness.
MR. LOWE: I want to know if it's proved. Make an offer
of proof.
MR. SIKMA: I don't have to make an offer of proof, Your
Honor.
Counsel's demanding I make an offer of proof at this time. I
think there is sufficient evidence to show in this area right by the
crime
scene individuals were running out of here from the opening statement.
Unless the opening statement is not any indication at all what the
defendant's
theory is.
MR. LOWE: You missed my point. I made an offer of proof
to show --
THE COURT: The Court has reserved its ruling on the
pictures
to which specific objections were made. There is no way that the Court
can act on an objection on any other pictures that might show thus and
so.
MR. LOWE: Judge, I think it's reasonable to ask the
government
represent to you that at some time during this trial {175} they will
testify
that object was a stick of dynamite. That's very reasonable.
THE COURT: This witness has just testified to that.
MR. HULTMAN: A lay witness can, if a stick of dynamite
was sitting there right now --
THE COURT: You may cross-examine, but this witness has
testified to that and that's all that's required, the testimony of one
witness.
MR. LOWE: This is the purpose of our making such motion.
I would hope in the future the government would obey the Court's order.
MR. SIKMA: We have had some other things here. You've
indicated
that a stipulation for the last three weeks, that you are stipulating
to
foundation. We get up here and foundation objections are made to these
very photographs.
MR. TAIKEFF: Not yet. You might be watching another trial,
Mr. Sikma.
MR. HULTMAN: Your Honor, just so there is no
misunderstanding,
one, all of the exhibits that are involved here are not new to Counsel.
In fact they have been exhibits in another trial. Two, we set down
weeks
ago an exhibit list specifically with the items which Counsel has had
an
ample opportunity through their investigators and through Counsel
themselves
to view every single one of those. Last night again we sat down. {176}
Counsel had still another opportunity. Today in this courtroom Counsel
has had an opportunity to specifically look at the photos, make
whatever
objections that they had and that is the manner in which we agreed to
proceed.
MR. LOWE: That's the entire description right there.
MR. SIKMA: They had been available to you all the time.
MR. LOWE: We take your representation --
MR. HULTMAN: Look at the rest of the photos today one more
time, John.
MR. TAIKEFF: Anyone who read our trial memorandum could
not misunderstand that our position was that every item of that nature
was objectionable, so if the government accurately represents the kind
of pretrial activity that went on and consistent with that and in the
spirit
of which it occurred, we gave advance notice of virtually 75 or maybe
90
percent of our objections in the course of the trial in advance, in
writing
so there'd be no misunderstanding about it. Now that doesn't mean we're
limiting ourselves only to those objections, but surely an examination
of that memorandum would show every single explosive device
identifiable
was indicated and an item we would object to and we took the precaution
of coming to the side bar in advance. So to the extent that the
government
is saying we have not objected properly, I don't think that they make a
proper statement and I think that our position is clear that the
devices
which in and of themselves are of a crime to {177} possess, if they are
not directly connected with the defendant and with the issues of this
case
we first and foremost object on the grounds of relevancy and in the
alternative
object on the grounds of prejudice and we're willing to stipulate any
fact
necessary to avoid the prejudice.
MR. LOWE: May I suggest something: we're three
minutes
from the lunch recess. Could we excuse the jury and have a voir dire?
MR. HULTMAN: The government objects to any voir dire.
MR. LOWE: Perfectly proper voir dire when you have a
foundation
issue raised. That will clear the issue up for the record whether it is
or not.
MR. HULTMAN: That question has been asked and answered
already, Your Honor.
THE COURT: The Court will recess at this time and we will
reconvene. Of course, the jury would not be brought in under the
procedure
that I have set up. At that time you'll be permitted to voir dire this
witness.
MR. LOWE: Thank you, Judge.
(Whereupon, the following proceedings were had in the courtroom
in the hearing and presence of the jury:)
THE COURT: This Court is going to recess at this time until
1:30 this afternoon and I remind you of the admonishment that I have
mentioned
a few times on preliminary instructions. That is, you must keep an open
mind in this case, not to form {178} any conclusions until after you
have
heard the entire case and have been instructed on the law, heard the
arguments
of the lawyers. And furthermore, you should not discuss it with anyone.
I realize that because of the sequestered nature of the jury you have
limited
opportunity to discuss it with anyone, but you shouldn't discuss it
among
yourselves.
Court is in recess until 1:30.
(Recess taken.)
{194}
THE COURT: Members of the jury, the Court did in fact
reconvene
at 1:30. I give you this just for your information. But we have been
involved
on legal problems which, as I have previously indicated to you, will
arise
during the course of this trial and that accounts for the delay in the
jury coming in.
THE COURT: You may proceed.
MR. SIKMA: Thank you, Your Honor.
Q (By Mr. Sikma) I will show you what is marked and
received
into evidence as Government Exhibit 55. Now it's entitled "Tent City."
Would you state for the jury if there are items in there which were not
found right in the area, in the tent area itself?
A Yes, there are.
Q Would you point those out to the jury, please, and tell
the jury what they are.
A Referring now to Government Exhibit No. 55. On page 17
the two photographs marked A and B, excuse me, C and D and there are
enlargements
of these photographs on pages 28 and 29.
The photograph on 28 corresponds to the photograph on page 17
marked C. and the photograph on page 29 is an enlargement of the
photograph
marked 17A.
The photograpn on page 28 is of the dynamite, one piece of
dynamite.
The photograph on page 29 is of a canteen. Both of these items were
found
away from the tent area to the {195} south which I described earlier as
the escape route where the individuals were seen, I saw fleeing up the
side of the hill.
Also the photograph 18D as in David and 19B as in boy, some
articles
of clothing and a shell casing. They were also found in the same area
where
the dynamite and the canteen were found on the escape path.
A photograph on page 30 is an enlargement of photograph
on page 18 marked with the letter D as in David. Now I haven't
described
the remainder of this album so do you want me to continue with that
now?
Q Yes. Would you please.
A I believe I concluded with, I was on page 39. On page
39 are six, excuse me, nine photographs. Photograph marked A, E, F and
I are photographs of Agent Williams' car as it was found on the night
of
the 25th or 26th of June and again on the morning of the 27th of June.
{196}
Q Before we go on I will show you Government exhibits
marked
for identification as Government Exhibit 9A and 9B. Would you identify
these as well.
A Yes. Referring to Government Exhibit 9A, this is a
photograph
of Agent Williams' car as I found it on the night of the 26th.
It is taken from the right rear side. It shows the trunk lid
to be open and the door open.
9B is taken from the left front -- excuse me. I think I said
9A was from the right rear. It's from the left rear.
And 9B is from the left front depicting the front side of the
car.
MR. SIKMA: I would offer 9A and 9B into evidence, Your
Honor.
MR. TAIKEFF: No objection.
THE COURT: 9A and 9B are received
Q (By Mr. Sikma) I would also show you 9C.
MR. TAIKEFF: No objection if offered.
MR. SIKMA: Since there's no objection, Your Honor, we will
offer and let the witness explain to the jury what it is.
THE COURT: 9C is received.
A 9C is a photograph taken from the front of Agent
Williams'
car as it was found on the 26th of June.
{197}
Q (By Mr. Sikma) I will show you Government Exhibit 13A
and 13B.
MR. TAIKEFF: No objection if offered.
MR. SIKMA: And would offer them into evidence also, Your
Honor.
THE COURT: 13A and 13B are received.
Q (By Mr. Sikma) Would you describe to the jury what
Government
Exhibit 13A and 13B portray.
A Yes. 13A and 13B --
Q Would you hold them also so the jury can see them.
A --are pictures of the Ford, I believe it's a 1967 Ford
automobile which was located in tent city and you can see there are
items
on the hood of the automobile as I saw it on the 26th and again on the,
25th and 26th.
Q Now when you came upon the tent city on the 26th can
you tell the jury whether or not it appeared to be as it is portrayed
in
the photographs that you have just shown of the vehicle, the Ford,
green
Ford?
A Yes. It appears to be the same way.
As I stated earlier, I saw a green car in there and I saw a,
a rifle on the hood of the car and that's the extent of my examination
of that particular area.
Q I will show you what is marked, I've shown it to defense
counsel, Government Exhibits 12 and they've indicated there's no
objection
to Government Exhibits 12.
{198}
MR. SIKMA: I'll offer that into evidence, Your Honor. The
defendant has no objection.
THE COURT: Is there no objection?
MR. TAIKEFF: That's correct, Your Honor.
THE COURT: Thank you. Exhibit 12 is received.
Q (By Mr. Sikma) Would you tell the jury what that is.
A Government Exhibit No. 12 is a photo of the red and white
van.
Q And did you see that red and white van?
A I saw that in the tent area.
This photo was taken at the B and U complex in Pine Ridge.
Q Will you point that out on Exhibit 71.
A Referring to Government Exhibit No. 71, this marker here,
the red and white van, depicts the location of the van and the car was
parked to the rear of the van. The car was found parked on the rear of
this road at the edge of the tent area.
Q Now is that a red and white pickup that you observed
going into the Jumping Bulls' residence?
MR. TAIKEFF: Objection to the form of the question, Your
Honor. It assumes a fact not in evidence.
THE COURT: Sustained.
Q (By Mr. Sikma) You testified earlier that you observed
a red and white vehicle going into the Jumping Bull residence earlier.
J. {199}
MR. TAIKEFF: Objection to the form of the question. It
assumes a fact not in evidence.
The testimony was it was a pickup.
MR. SIKMA: I indicated a vehicle.
MR. TAIKEFF: The witness did not say vehicle. Only Mr.
Sikma said vehicle. The witness has been saying quite clearly a pickup.
THE COURT: The objection is sustained.
You may rephrase your question.
Q (By Mr. Sikma) You indicated you
saw a red and white pickup going into that area, did you not?
A Yes. I did.
Q Now can you tell the jury that there is any difference,
if that's the same kind of vehicle that you see in that photograph?
A No. They're entirely two different vehicles.
Q Have you ever flown over this particular area, the tent
area and the Jumping Bull Hall area in an aircraft?
A Yes. I have.
MR. SIKMA: I show defense counsel Government Exhibit 56
for their objection and, possible objection before showing it to the
witness.
MR. TAIKEFF: Your Honor, if these photographs are offered,
there will be no objection from the defense.
THE COURT: Very well.
{200}
MR. SIKMA: I would offer them at this time.
THE COURT: You are offering Exhibit 56?
MR. SIKMA: Yes, Your Honor.
THE COURT: Exhibit 56 is received.
Q (By Mr. Sikma) Would you, Mr. Adams, please explain to
the jury what Government Exhibit 56 consists of.
A Referring to Government Exhibit 56, the photographs
contained
herein are all aerial photographs of the area of Jumping Bull, in the
vicinity
of Jumping Bull Hall and the tent area there as referred to on
Government
Exhibit 71.
Q During the course of the afternoon, or excuse me, during
the course of the following day did you have occasion to examine
Special
Agent Williams' car?
A Yes. I did.
Q And during that examination did you look at the back
part of the car, --
A Yes. I did.
Q -- taillight area?
A Yes. I did.
Q And what if anything did you observe?
A There was, to the best of my recollection there were
at least two bullet holes into the taillight assembly.
Q Was anything, can you tell whether or not anything was
missing from the taillight?
A Some of the glass particles, yes, from the taillight
were {201} missing.
MR. TAIKEFF: Your Honor, I'm referring to Government,
Counsel,
Government Exhibits 57 and 58. If offered there would be no objection
from
the defense.
THE COURT: Very well.
MR. SIKMA: Your Honor, I will then offer Government
Exhibits
57 and 58.
THE COURT: Exhibits 57 and 58 are received.
Q (By Mr. Sikma) I will show you first Government Exhibit
58 since we're talking about Government Exhibit 58 at this time.
Now does one of those areas show the taillight section of Special
Agent Williams' vehicle?
A Yes, sir.
There are two photographs here that show the rear end of Agent
Williams' car. They are photograph number 7 and photograph number 17.
Q Okay. Now at that time what was the condition of the
taillight section of the vehicle?
A On photograph number 7, this was taken at the B and U
compound at Pine Ridge after the vehicle was towed from the vicinity of
the tents.
The photograph on page 17 is a photograph taken at the National
Guard Compound in Rapid City, South Dakota.
MR. TAIKEFF: Your Honor, Government has shown the defense
Exhibit 14B. If offered there will be no objection.
{202}
MR. SIKMA: Your Honor, we'll offer into evidence Government
Exhibit 14B.
THE COURT: Exhibit 14B is received.
{203}
Q (By Mr. Sikma) Would you examine 14B and tell the jury
what it is.
A Referring to Government Exhibit 14B, this is the left
portion of the taillight assembly which was removed from the car and
which
is shown as a blank or bare area on Government Exhibit, on the
photograph
number 17 of Government Exhibit No. 58.
Q And you, can you describe the condition of that
particular
item for the jury.
MR. LOWE: Your Honor, we can save an awful lot of time.
We are perfectly willing to stipulate that that vehicle at any time was
located by Agent Coler's vehicle if the Government will just make a
representation.
There's no need to go through the process of, identifying process of
the
car.
MR. TAIKEFF: There's no dispute about that fact.
MR. SIKMA: That's something I didn't know we had an
agreement
to stipulate to, Your Honor.
MR. LOWE: Well, I will so offer now. There's no dispute
on that and Mr. Sikma, I've talked about this with him in the past and
Mr. Sikma can just make a representation of where the car was found and
where this would purport to show early in the day. There's no dispute
on
this. That's fine with us. No dispute on this.
MR. SIKMA: Your Honor, I might indicate that the vehicle,
Special Agent Williams' car which is designated here by {204} a small
magnetic
square piece. If the jury can see, it indicates, it says on the top
there,
"SA Williams' car."
I would represent, Your Honor, that the vehicle was found, or
would have been in a location somewhat similar to this, running
parallel
to the area from the tan and white house, to the road from the tan and
white, tan and red house, excuse me, marked "residence" directly above
the sign that says "bodies of Williams, SA Williams and SA Coler" on
Government
Exhibit 71 to the area of Coler's car here, that it was parked, or at
some
time would be in a position where it was parallel to that, slightly to
the front of or forward of the position of SA Coler's car.
MR. TAIKEFF: We'll stipulate to this, Your Honor.
THE COURT: Very well.
The jury will remember that when counsel has stipulated to a
fact, factual matter the jury may take that as having been proved.
MR. SIKMA: Could I have the Court's indulgence for just
a moment, please.
THE COURT: Okay.
MR. SIKMA: Your Honor, the Government and the defendant
stipulate that the car was in this position at the time of Special
Agent
Williams and Coler's death at approximately 12:00 noon on the 26th of
June,
1975.
MR. TAIKEFF: It is so stipulated, Your Honor.
{205}
THE COURT: The record may show and the jury will know the
stipulation.
Q (By Mr. Sikma) Mr. Adams, Government Exhibit 57 is also
in front of you. It has been admitted into evidence.
Would you describe for the jury what Government Exhibit 57
consists
of.
A The photographs contained in Government Exhibit No. 57
are photographs taken of Agent Coler's car.
Q And are those photographs taken from a number of
different
angles?
A Yes. They are. Almost every direction.
Q And those photographs I take it were made after the
vehicle
was removed from the scene as it's portrayed on Government Exhibit 71,
is that correct?
A Yes. All of the photographs were taken after the vehicle
was removed from the area where it was found at Jumping Bull Hall.
Q In the tent area you indicated that you observed a
firearm
on the hood of a car. Can you describe that firearm.
A Yes. It was a 22 bolt action rifle.
MR. SIKMA: I'll show the defense counsel Exhibit 41A, Your
Honor.
MR. TAIKEFF: No objection if offered in evidence, Your
Honor.
MR. SIKMA: Your Honor, we would offer Exhibit 41A.
{206}
THE COURT: Exhibit 41A is received.
Q (By Mr. Sikma) Would you examine this and tell the jury
what it is and if you know where it was found.
A Yes. This is the 22 caliber rifle with scope.
It was found on the hood of the 1967 Ford in the tent area.
It was tagged by Agent Robert Thompson as so reflected on this
tag here.
Q Special Agent Adams, after leaving the tent area on the
-- or can you tell me what areas you examined on the 27th, the day
following
the date of the murders of Special Agent Williams and Coler.
A Pursuant to Search Warrants I was involved in the
examination
of the log cabin and the white house and the, the residence here, the
little
residence which lays between the log cabin and the red and tan house.
Q And would you state what it was that, what kind of an
examination you conducted.
A We examined the houses in the area and around the houses
for any proof of the crime and anything we might use to identify the
individuals
that there, were there the night before that were involved in the
murder
Agents Williams and Coler.
Q What kind of items did you look for and what kind of
items did you find?
A We found several shell casings, empty cartridges, shell
{207} cartridges and some, then we picked up paper or anything that
could
identify people by name that might live in the area at that time.
We didn't know exactly who was living there or who might have
been there.
Q I will show you Government Exhibit 32C, 33G, 34E, 41B
and 69E. I will first show them to the defense counsel for their
inspection.
{208}
(Counsel examine documents.)
Q (By Mr. Sikma) I will show you, first of all, Government
Exhibit 32-C, and ask you whether or not you can identify Government
Exhibit
32-C?
A (Examining) Yes, I can.
Q And do you recognize it?
A Yes.
Q Is this an item that you found during the course of your
examination?
A Yes, it was.
Q Can you tell the Court whether or not this was coming
from a -- you found this in an area from which shots were being fired
on
the 26th of June, 1975?
A Yes. These items did come from that area.
MR. SIKMA: Your Honor, I would offer into evidence
Government
Exhibit 32-C.
MR. TAIKEFF: I have just one question on the voir dire,
your Honor, if I may.
THE COURT: Very well.
MR. TAIKEFF: Agent Adams, did you find those items
personally?
THE WITNESS: Yes, I did.
MR. TAIKEFF: No objection.
THE COURT: Exhibit 32-C is received.
(Plaintiff's Exhibit No. 32-C, having been previously {209} duly
marked for identification, so offered in evidence, was received.)
Q (By Mr. Sikma) Could you tell the jury where it was
exactly
that you found them?
A Yes. These two shell casings were found in the vicinity
of the white house, so depicted on Government Exhibit No. 71.
Q O.k. Would you point it out on the map, Government
Exhibit
71?
A It was found in the vicinity of this house right here,
white house (indicating).
Q I would show you what is marked for identification as
Government Exhibit 33-G, and ask you whether or not you can identify
Government
Exhibit 33-G?
A Yes, I can.
Q And are these items which you found on the 27th of June,
1975?
A Yes, they are.
Q And can you tell the Court whether or not these were
found in an area from which you observed shooting on the 26th?
A Yes, they were.
MR. SIKMA: I offer into evidence Government Exhibit 33-G,
your Honor.
MR. TAIKEFF: Your Honor, my understanding from the
testimony
is that the agent found them personally, and if that's the case, there
is no objection; and that would be {210} true of the additional
exhibits
which are about to be offered.
THE COURT: You did testify you found them personally?
THE WITNESS: Yes, your Honor, I did.
THE COURT: Very well. Exhibit 33-G is received.
(Plaintiff's Exhibit No. 33-G, having been previously duly marked
for identification, so offered in evidence, was received.)
Q (By Mr. Sikma) Now, what are these items which you have
in Government Exhibit 32-C and 33-G?
A 33-G are two .44 Remington Magnum shell casings, expended
cartridges.
Q What was their condition when you found them?
A They were laying on top of the ground as if they had
been recently fired and in a shiny, new condition.
Q Now, earlier is it correct that you testified that on
the night of the 25th there was a severe rainstorm in that area?
A Yes, there was.
Q Is this true of all the shell casings which you found?
A Yes, it is.
Q I would show you what is marked for identification as
Government Exhibit 34-E and ask you whether or not you can identify
Government
Exhibit 34-E?
A Yes, I can.
Q And is it also true that Government Exhibit 34-E was
{211} found, as the others were found, in the general area in which you
observed shooting on the 26th?
A Yes. As a matter of fact, this particular cartridge was
found in the vicinity of the log house.
Q O.k. Would you point out to the jury where it was that
that was found?
A Referring to Government Exhibit 71, it would be in the
vicinity of the log house here (indicating).
Q Which side was it on?
A To the best of my recollection, this particular
cartridge,
was found -- the entrance of the house is on the northeast corner, on
the
east side, and it was found in the general vicinity of the entrance to
that house.
MR. SIKMA: Your Honor, I would offer into evidence
Government
Exhibit 34-E.
MR. TAIKEFF: No objection, if personally found.
THE COURT: 34-E is received.
(Plaintiff's Exhibit No. 34-E, having been previous duly marked
for identification, so offered in evidence, was received.)
Q (By Mr. Sikma) Is it true about this shell casing, that
you indicated about the other shell casings, as far as their condition
at the time they were found?
A Yes. It was in the same condition as the others.
Q I will show you Government Exhibit 41-B, and ask you
to {212} identify this -- and you will have to take it out of the
package
unless you know what it is inside it.
A (Examining) Yes, I know what this is.
Q And what is it?
A It is a .22 caliber cartridge.
Q And where was this found?
A It was found in the vicinity of the white house.
Q And who found it?
A I found it personally.
MR. SIKMA: I would offer into evidence Government Exhibit
41-B.
MR. TAIKEFF: May I have a question or two on the voir dire,
your Honor?
THE COURT: You may.
MR. TAIKEFF: Did you say it was a cartridge or a casing?
THE WITNESS: It is a casing. It is an expended casing.
MR. TAIKEFF: No objection.
THE COURT: 41-B is received.
(Plaintiff's Exhibit No. 41-B, having been previously duly marked
for identification, so offered in evidence, was received.)
Q (By Mr. Sikma) Would you point out to the jury on
Government
Exhibit 71 where it was that you found it?
{213}
A Referring to Government Exhibit 41-B, I found this in
the vicinity of the white house, as so depicted on Government Exhibit
71.
Q And which side of the white house was it?
A To the best of my recollection it was on the southwest
corner, in the vicinity of the southwest corner of this house.
Q Your Honor, I show the witness Plaintiff's Exhibit 69-E
for identification. Would you examine that and tell the jury what that
is and whether or not you can -- first tell the jury whether or not you
can identify it?
A Yes, I can.
Q And did you find that particular item?
A Yes, I did.
Q And would you tell the jury approximately the general
area in which you found it?
A I found this in the vicinity of the white house.
Q What was the condition of this item when you found it?
A It again was laying on top of the ground. It was not
covered in any way. It appeared to be in a recently fired condition.
MR. SIKMA: Your Honor, I would offer into evidence
Government
Exhibit 69-E.
MR. TAIKEFF: No objection, your Honor.
THE COURT: 69-E is received.
(Plaintiff's Exhibit No. 69-E, having been previously {214} duly
marked for identification, so offered in evidence, was received.)
Q (By Mr. Sikma) Would you tell the jury exactly where
it was on the map, on Government Exhibit 71, where it was that you
found
this item?
A Plaintiff's Exhibit 69-E was found, to the best of my
recollection, on the south and west side, southwest, in the vicinity of
the southwest corner of the white house as depicted on Government's
Exhibit
71.
Q I would direct your attention to what has been marked
or has been designated as Government Exhibit 20 which is to my far
right,
which appears to be a mock-up, to the right side of the courtroom. Have
you examined the mock-up?
A Yes, I have.
Q And do you recognize what area that mock-up covers?
A Yes, I do.
Q In general terms -- and what is that area?
A That is the Jumping Bull Hall area which is near Oglala,
South Dakota.
Q And that's the area which is also in part depicted on
Government Exhibit 71, is that correct?
A Yes, it is.
MR. TAIKEFF: Excuse me, your Honor.
Did I under-stand Mr. Sikma to say that that area was depicted in part
on that exhibit?
{215}
MR. SIKMA: Yes.
MR. TAIKEFF: I had the impression that Exhibit 71 was more
comprehensive in scope than the mock-up. The question seemed to put it
the other way around.
MR. SIKMA: I beg your pardon, your Honor. I guess perhaps
I did.
Q (By Mr. Sikma) I understand that Government Exhibit 71
covers a greater area than the mock-up, Government Exhibit 20, is that
correct?
A Yes, it is.
MR. SIKMA: Very well.
May we approach the bench, your Honor?
THE COURT: You may.
(Whereupon, the following proceedings were had at the bench:)
THE COURT: Mr. Lowe, I did not want to mention it to you,
but you violated my rule against two counsel on one witness.
MR. LOWE: What rule?
THE COURT: On this witness. It was my understanding Mr.
Taikeff would handle this witness.
MR. LOWE: I didn't think I did.
THE COURT: Well, that was the stipulation.
MR. LOWE: I thought this stipulation would not cover that.
In many instances I am familiar with the evidentiary {216} matters
because
of my involvement with the matter, and Mr. Taikeff is not. I think the
stipulation facilitates so much time saving, I would hope your Honor
would
allow that as an exception, the only exception.
THE COURT: It would be very simple for you to simply lean
over and whisper something to Mr. Taikeff.
MR. LOWE: Except many of the stipulations will be limited
in scope. I would like to think that that would be enough of a time
saving,
Judge, that you would allow that as an exception. We did it last summer
very successfully.
THE COURT: Well, I do not allow two counsel on one witness.
MR. LOWE: All right. I will certainly abide by your ruling.
THE COURT: Thank you.
MR. SIKMA: Your Honor, this is at the Defendant's request,
we intend at this time to offer into evidence, which was found in the
white
house, Government Exhibits 50-A and 50-B which are handi-talkies, about
the white house which Special Agent Adams found; and I would like to
let
them know. They have a standing objection to it, and I would like to
let
them know at this time -- the jury is aware of it -- we are going to
offer
these to show as was indicated -- will be indicated by an offer of
{217}
proof, your Honor, that the handi-talkies will be evidence to
corroborate
the fact that -- as one witness will testify -- that they had a means
of
communication from the area of the houses to the area of the tent area.
MR. LOWE: Your Honor, may I just inquire as to the nature
of the extent of the offer of proof? There are two handi-talkies. They
were each in a recharger when found. To my knowledge they were in the
house.
There were no handi-talkies found anywhere else in this case.
Do I understand there will now be evidence that there was in
existence another handi-talkie somewhere the area of the tent city?
MR. SIKMA: There was all kinds of radio equipment in the
red and white van.
MR. LOWE: Operative?
MR. SIKMA: Yes, all kinds of it.
MR. LOWE: Operative?
MR. SIKMA: Yes. I have understood all the time it was.
MR. TAIKEFF: Do you know the frequency of the
handi-talkies?
MR. SIKMA: Just a minute here.
(Counsel confer.)
MR. SIKMA: This is a common channel, your Honor, at 23,
a 23 channel unit that was found there. That {218} would have the same
capabilities as these handi-talkies would have.
MR. TAIKEFF: Well, your Honor, if there is a sufficient
foundation that there was an operable radio in the tent city area and
an
operative radio that worked on the same frequency in the white house, I
don't think that the same -- there would be a lack of sufficient
foundation
or lack of relevancy because it is clear that the Government would be
entitled
to make the argument that flows from that. However, until such time as
they have laid that foundation, I think it would be prejudicial to
admit,
subject to further evidence, because if that evidence never develops,
the
jury has seen the object.
Now, we will stipulate at a later time that this witness found
those handi-talkies so that the Government will in no way be prejudiced
by waiting until they have a proper foundation.
MR. LOWE: We have stipulated foundation already.
MR. SIKMA: I will indicate one other factor, your Honor,
that the Government will offer testimony that there was capability of
communicating,
you know, between this area where they were found and the tent area;
and
that the Government with its offer of proof will have sufficient
evidence
to show the capability. It is very well conceivable that the Defendants
-- the Defendant and {219} his companions could have carried out items
to communicate without the Government ever finding them, but I think
that
the evidence is relevant.
This goes again to what it is relevant to show as to the
capability
of the area in question, that that is an important matter of proof, and
the prejudice to it, if it is so easily attached, is not that great
because
this witness is not going to testify that he knows of the capability or
anything of this nature; and so at that point if it is later excluded,
it shows no great prejudice, but I think that it is important that we
establish
-- this is the last, these are the last exhibits that I have with this
witness.
MR. TAIKEFF: This is not an argument concerning prejudice,
this is an argument concerning the fact the picture is not the home of
the Defendant or the home where he stayed. They take two units which
can
communicate with each other and try to show the existence of those two
units in one house. It's possible that someone in another house could
have
communicated with the other area. It is just improper to make that
offer
and offer that evidence on that basis.
MR. LOWE: We have already stipulated as to the foundation
on it. If they just wanted to offer it, they could go ahead on the
stipulation
made at that time. We {220} are not fighting that.
MR. SIKMA: We would request the opportunity to proceed
at this time by offering evidence as to where they found it.
THE COURT: You are offering them at this time?
MR. SIKMA: Yes. We are showing them to establish that the
witness found them there, at the white house, that he found them in the
white house. Your Honor, we would not -- yes, we would offer them at
this
time.
MR. LOWE: We would stipulate at the appropriate time later
if it is connected up by the evidence.
THE COURT: I think the proper method probably --- if you
are unwilling to go along with counsel's proposed stipulation -- would
be for you to have this witness identify them and withhold offering
them
until you have additional evidence to tie it up with something or some
similar equipment at tent city.
MR. SIKMA: We will do that, your Honor.
MR. TAIKEFF: Your Honor, we have to object to that because
the mere bringing of them into the courtroom in the presence of the
jury
accomplishes what we are trying to avoid.
We would stipulate that this witness can identify them, where
they were found and what they are, but not for the jury to see them and
start wondering about them {221} or consider them, until such time as
the
Government has made a sufficient showing to warrant the introduction
into
evidence.
THE COURT: On that theory, if you have a piece of equipment
here viewed by one person and a piece of equipment over here viewed by
another person, there is no way that you could ever get that evidence.
MR. TAIKEFF: That's not true, your Honor. We are giving
them the foundation.
THE COURT: I know there is no way ---
MR. LOWE: (Interrupting) When they come in with the second
piece of evidence, well, sometimes the first piece gives the foundation
for the second piece.
MR. TAIKEFF: There isn't going to be the second piece of
equipment. This is a bushwhacking operation.
MR. SIKMA: There is going to be testimony.
MR. TAIKEFF: As to the act of communicating, they can do
that with smoke signals.
MR. SIKMA: There is substantial radio equipment the
evidence,
and the testimony will be that that was loaded up into the van from the
tent city area in preparation for running the roadblocks. There will be
that testimony later in the trial, your Honor, so they wouldn't carry
this
additional equipment if it was inoperative.
{222}
MR. LOWE: There is no conceivable prejudice to the
Government.
There is conceivable prejudice to the Defendant if this testimony does
not materialize, and it seems to me that makes the decision clear.
THE COURT: What prejudice do you see for the Defendant
if they simply identified the equipment as the equipment that was
found?
MR. LOWE: Last year, Judge, there was an allegation of
ambush. It was a wild allegation that somehow, something, 35 miles away
in Aldrich, South Dakota, there might have been another unit. They
might
have been transmitting and setting up the agents. It was so far-fetched
they never did produce another unit, and it was very prejudicial.
The prejudice here is to suggest some sort of pre-plan. The
charge
is nothing like that.
MR. SIKMA: Your Honor, he is talking about evidence in
another trial which was evidence -- which was an admission by one of
the
Defendants, perfectly admissible -- I mean, if the witness testified
that
the Defendants said that to him, why, it was evidence of this kind that
the Government would be violating its obligation to its case if we
didn't
present that kind of evidence -- that was being set up.
We cannot offer that evidence this time because {223} that
witness
was against another Defendant, and it was an admission by another
Defendant
after the close of the conspiracy much later; and it didn't relate to
this
Defendant, so we cannot offer that kind of evidence in this case and we
don't intend to use it.
MR. TAIKEFF: I think your Honor has been taken away from
the main point. There can be no prejudice to the Government by waiting
with this. We have already acknowledged if they produce the other unit,
we recognize that this is relevant. Of course, it is an argument that
they
should be permitted to make to the jury; but until they can show some
connection
between either the Defendant or the area in which he was known to be
with
an equipment -- or the equipment in somebody else's house, I think it
is
improper for them to parade it in front of the jury.
THE COURT: Well, it won't be paraded in front of the jury,
and there is no way that I can require one side or the other to proceed
on the basis of a suggested stipulation unless both sides are willing
to
stipulate.
MR. TAIKEFF: And maybe the witness could be shown the unit
in an enclosed container, and asked: "Anywhere did you find what
is in this bag that is marked for identification?" and let it rest at
that,
unless the Government's real motive is only to want to inform the {224}
jury of the existence of something that is not in evidence.
THE COURT: Mr. Sikma, what is your response?
MR. SIKMA: Your Honor, I think that's absolutely
ridiculous.
We intend to proceed in an orderly manner. We are offering it in good
faith.
THE COURT: How will you tie it up?
MR. SIKMA: We will tie it up by testimony there was a
capability
by an eyewitness. There was a capability of communicating between this
area and the area of the houses, and I expect that we will also be able
to connect it up with the radio equipment; but I haven't recently
looked
at it, but I was definitely going to because I am quite certain that
the
radio equipment was substantial. If you review the photographs you will
see that there was not only communication with this but also, your
Honor,
the radio in the FBI Agents' vehicle was also -- those radios were also
turned up.
MR. TAIKEFF: It is the Government's responsibility to have
a physical examination of that equipment to see that it is not
operative.
MR. LOWE: May I ask, your Honor, that the witness be
identified?
MR. SIKMA: I didn't hear.
MR. LOWE: The name of the witness who is going to {225}
testify for the offer of proof.
MR. SIKMA: One of the witnesses is Draper, your Honor.
MR. LOWE: Any other one?
MR. SIKMA: It is possible, your Honor.
THE COURT: Well, on counsel's representation that it will
be tied up, the witness will be permitted to identify the object as
being
an object that he found. It will not be received in evidence at this
time.
MR. SIKMA: I understand.
THE COURT: It seems to me that is a regular standard
procedure
and ---
MR. LOWE: (Interrupting) Would this be an appropriate time
for your Honor to instruct the jury as to the distinction between an
object
which is simply identified and one which is received as far as their
consideration
is concerned?
THE COURT: I will give the jury such an instruction.
{226}
(Whereupon, the following proceedings were in the courtroom in
the hearing and presence of the jury:)
Q (By Mr. Sikma) I will show you
what has been marked as Government's Exhibit 50A and 5OB and ask you
whether
or not you can identify these items.
A Yes, I can.
Q And can you tell the Court and jury where you first saw
those items?
A I saw these items in the white house as depicted on
Government
Exhibit 71 as we were inside the white house searching pursuant to a
search
warrant.
Q Where were they in the white house?
A On a table inside the white house.
Q And do you remember what the room of the house was?
A To the best of my recollection it was a kitchen or eating
area. A kitchen type table.
Q And what did you do with them after you found them?
A I was in the company of Fred Coward. Agent Coward put
his initials and a date on each one of the four units and we retained
them
as evidence.
Q What condition were they when you found them? Were they
out of the unit or were they as you see them?
A The Handi-Talkie was in the charger and as I recall,
the chargers were plugged in.
Q And were they operative?
{227}
A They were.
Q At the time you found them?
A Yes, they were.
THE COURT: Members of the jury, I want to caution you that,
as I mentioned in my preliminary instructions, when this case is
finally
submitted to you you will consider all the evidence in the case and
that
will be testimony of witnesses, exhibits received in evidence and any
matters
which may be stipulated between the lawyers. There are times because
of,
required by the orderly, in order to have an orderly procedure in the
trial
that certain objects must be identified but are not offered in evidence
at that time. They may be offered later. If an object should during the
course of the trial be identified and not later received in evidence,
the
jury must disregard that item entirely, attach no significance at all
to
it because you can only give consideration and weight to any exhibits
that
the Court actually admits in evidence. As I say, I give you this
caution
because there may be items, as in this case, this item which was just
identified
which has not been offered and if subsequently it should not be
received
in evidence, then it would have no signifance at all insofar as your
consideration
is concerned.
MR. SIKMA: Your Honor, I might ask if the jury might have
some time to look at the photographs and question. If the Court would
rather
reserve that for a later time, but I {228} think it might be helpful
for
the jury to observe and look at these photographs prior to
cross-examination.
I have completed my examination on direct of this witness.
THE COURT: My procedure is to permit Counsel that offers
an exhibit, or even if it's offered by the other side, any exhibit
that's
been received that I permit that exhibit to be circulated to the jury.
My only restriction is that there would be no interrogation of the
witnesses
while the jury is viewing photographs or any other exhibits. If you
desire
have the jury view the photographs, it may be done at this time.
MR. LOWE: May we stand easy while
this is going on and confer about cross-examination and so forth?
May we approach the bench.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE: From the beginning of this trial Mr. Hultman
has raised objections about procedures which tend to emphasize one
exhibit
or part of a testimony or issue. We believe that the gun racks which
are
set up on the right are calculated to, and in fact do affect, they do
that
exact thing, they present continuously to the jury certain exhibits but
not all exhibits; namely, the guns. To the extent that it is handy to
have
the guns readily available in the courtroom, we can understand using
such
a rack, but we believe that racks should be turned {229} facing the
walls
so that an agent can go over and retrieve the guns but so they're not
constantly
in the view of the jury while they're in the courtroom or moving in and
out of the courtroom.
THE COURT: I thought we had resolved that.
MR. LOWE: I don't know if we have. It's my under-standing
it would not be in view of the jury.
THE COURT: I remember that the matter was discussed, I
think last Friday afternoon.
MR. LOWE: Unless I misunderstood.
THE COURT: You heard my suggestion that, somebody
suggested,
I don't know if Mr. Hultman or who it was suggested they could be
turned
toward the wall.
MR. HULTMAN: Turned toward the wall.
MR. LOWE: That's all I'm asking.
THE COURT: They'll be turned to the wall.
MR. HULTMAN: In fact, I would ask the Clerk to do what
he can in terms of handling them that way.
MR. LOWE: Fine. That's all it was.
THE COURT: You may ask the bailiff ---
MR. LOWE: I would like to raise an issue. I don't know
if it will come up with Mr. Taikeff, I don't know how he feels about
this
particular witness. We have had a considerable amount of flap last
summer
about these green stick ons on Exhibit 71. I take the position,
certainly
as to some witnesses I do {230} not want the green magnetic items on
the
board.
THE COURT: Certainly as to what?
MR. LOWE: Certainly as to some witnesses.
Both because it would suggest to them what their testimony should
be or what previous testimony has been and also because at some point
it
starts to clutter a lot of lines because you have all these stickers
around.
Secondly, as to some of the witnesses, I think there may be dispute as
to where one item was found or another. They have to look to the board
when they assume the stand or while they're sitting there and see the
item
marked. It suggests what their testimony should be. I don't know
whether
you have any feelings of how that would be. Last year Judge McManus
allowed
us to remove them prior to cross-examination if we chose. I don't know
if we want to do that each time.
MR. HULTMAN: John, I think we could do that. I think we
ought to put them up because they do have, what it saves, Your Honor,
is
normally we would have the witness examine and examine on the board and
so forth and we're pretty much all of us agreed there is no real issue
on basically most of those items so we prepared these to put on one
exhibit
once they come in, once a weapon comes in. It's been testified where it
was found, it then goes on the board, on Exhibit 71. The problem then
that
Counsel is raising, he feels there are times when in order to properly
examine his witness on cross he would like them {231} removed. What I
would
suggest is we put them, I strenuously resist anything else, we put them
up and leave them there except in those instances when you want to do
it.
I have no objection.
MR. LOWE: Fine.
THE COURT: There is an understanding?
MR. LOWE: Yes. Thank you.
{232}
MR. TAIKEFF: Your Honor, could we approach?
THE COURT: You may.
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF: Your Honor, I thought we could possibly take
advantage of the lull and call Your Honor's attention to the fact that
amongst the things listed in our trial memorandum is an objection to
the
manner in which certain objects have been numbered.
Mr. Lowe just called my attention to the possibility that in
fairness to the Government and to make sure there are no undue delays
in
the trial, perhaps Your Honor would want to rule on that at the
earliest
possible time.
Very briefly to state our position, some objects are numbered
with the same numerical reference followed by a letter where apparently
the Government is not in a position to prove the connection between the
item whose number we object to and the principal item to which it is
ostensibly
related and we believe that as to those items there should be
renumbering.
The Government can offer whatever proof is appropriate, make
whatever argument is appropriate but it is, there is some prima-facie
nexus
shown. We believe that it is improper to label it that way because it
constitutes
an unfair advantage.
The jury is also hearing a number in connection with a principal
item whose numerical designation is the same.
{233}
In fact it is our understanding that it is the, generally the
proceeding of this Court to number all exhibits numerically and
consecutively
and to have these letter exhibits constitute both the deviation from
the
normal practice here and a suggestion by the very numbering that
there's
a relationship.
Now we do not object to most of the items being numbered in
letter
because in fact we recognize that there is indeed a connection and
we're
not disputing that.
But where there is not at least a prima-facie evidence showing
we feel that the use of the same number gives the Government an
advantage
it does not have.
MR. LOWE: May I just add, Mr. Sikma told the jury in his
opening that they would notice Exhibit 34A and 34B were so numbered
because
it will be shown that Exhibit 44B was fired from Exhibit 34A and now a
logical extension would be that every time they see Exhibit 34G they
would
draw a similar conclusion when in fact the items we complain of are
items
which I believe the Government will candidly say will only be shown as
possibly having been fired from that weapon or many other weapons. In
other
words, there is no unique connection to the weapon that is numbered so
we feel that while it is relevant for them to give that testimony, that
it ought to have a different number so that the jury does not have an
unwarranted
inference merely from the number of the exhibit.
MR. HULTMAN: Your Honor, the Government objects for {234}
a number of reasons.
First of all the system of numbering, and I don't mean that as
a result of this that counsel committed to anything but to, just to
show
the background and the history because there has been a previous trial
and there were literally very, very few exceptions. All of the exhibits
in this case, or exhibits in the last trial, I gave them the number
again,
the same as the last trial because if I had not nobody would have been
able to understand the transcript from last time.
I did that with the knowledge of counsel from the beginning
because
if they had a problem I wanted to know it early and I think generally
speaking
as counsel's agreed, they agreed it was a good idea because there would
be no way ---
THE COURT: As I recall, the Briefs that were filed in this
matter, there are only about four ---
MR. LOWE: Three or four, Your Honor, and all four of them
are bullets.
MR. TAIKEFF: That's all we address ourselves to at this
time.
THE COURT: And I have not had an opportunity to fully read
the Government's Brief so I would ---
MR. HULTMAN: Why don't I leave it at this time, at this
point rather than argue the matter and we're only talking about a
limited
item and I think without a question that counsel with the evidence can
make it very clear as you know they will {235} do, that either this
exhibit
is related to this exhibit in some measure but only to that degree. I
mean
I have full confidence that there's going to be no question that unless
a round is fired from that specific weapon, that's going to be made
very
clear by both the Government and if not by the Government by the
defense.
But that there is a relationship, for example, that will be shown that
it is capable of being fired from this particular weapon and when
placed
with the rest of the evidence there is at least this much of a
connection
and that's the only reason. There is a probability and that's the only
---
MR. LOWE: Possibility.
MR. TAIKEFF: I agree with Mr. Hultman that counsel is going
to endeavor to do as good as possible and that's exactly why this
application
is made.
THE COURT: I will probably rule on it tomorrow morning.
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: I suppose everybody has been sitting long enough
-- oh, I'm sorry. I thought you were through with the pictures.
Everyone has been sitting long enough so that we should take
a recess before we commence the cross-examination of this witness so
the
Court will recess at this time and {236} reconvene at five minutes to
4:00.
(Recess taken.)
{237}
(Recess taken.)
(Witness resumes witness stand.)
(Whereupon, the following proceedings were had the in courtroom,
out of the presence and hearing of the jury, the Defendant being
present
in person:)
THE COURT: Are you ready to proceed with your cross
examination?
MR. TAIKEFF: I am, your Honor.
THE COURT: You may bring in the jury.
(Whereupon, at 3:56 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:)
MR. TAIKEFF: May I inquire, your Honor?
THE COURT: You may.
CROSS EXAMINATION
By MR. TAIKEFF:
Q Mr. Adams, you are familiar with the model that's on
the far side of the courtroom, are you not?
A Yes, I am.
Q Do you know, as you sit there, what its scale is?
A Not off the top of my head, no, sir.
Q If I told you that the scale was one inch equals ten
feet, that is to say one inch on the model equals ten feet in real
life,
would you have any quarrel with that?
{238}
A I believe it is marked on the scale on the mock-up. If
that's what it reads, I would accept that.
MR. TAIKEFF: Would the Government accept my observation
in that regard?
MR. HULTMAN: Yes.
Q (By Mr. Taikeff) Would you very generally -- I don't
expect you to be precise in any way -- for the benefit of the Court and
the jury tell us approximately where in this courtroom the center of
tent
city would be if it were placed on the same scale and relative to the
model,
do you understand the question?
A No, I do not.
Q Would you turn around and look at the diagram?
A All right.
Q No. 71?
A All right.
Q It shows the area called the Jumping Bull Hall area,
does it not?
A Yes, it does.
Q That's roughly at the center of the diagram?
A Yes.
Q In the upper right-hand corner it shows an area that
is shaded darkly which we call, or everybody has been referring to as
the
tent city area, is that right?
A Yes.
{239}
Q Now, the model which is beyond the defense table only
portrays a portion of Exhibit 71, is that right?
A Yes, it does, that's correct.
Q And it is that central portion around the houses?
A Yes.
Q And in front of the houses?
A Yes.
Q Could you -- and I don't expect you to be precise or
accurate in any way -- just roughly using a pointer, demonstrate for
the
Court and jury what part of Exhibit 71 is represented by the model?
A All right. It would be an area ---
Q (Interrupting) If you will just put your pointer down
there so I can describe it for the record ---
A (Continuing) -- start with the north boundary.
Q All right, close to Highway 18, in the upper left-hand
part of the diagram, coming straight down, keep going, to a point
somewhat
below, I would say, about six inches below the white house and about
two
feet to its left on the diagram?
A That's the tan and red house there.
Q That's the red house?
A Tan and red, yes.
THE COURT: Excuse me. Did he say two feet?
MR. TAIKEFF: Yes, I said two feet on the diagram. Yes,
your Honor.
{240}
A (Continuing) Then we go on the west quarter.
Q (By Mr. Taikeff) You are now moving the pointer about
a foot above the lower edge to the right, into the trees?
A (Indicating).
Q And you stopped -- can you describe the point where you
stopped?
A Well, actually it would be in the wooded area, south
and west of the small plowed field that is in that general area.
Q All right, and then coming up?
A (Indicating).
Q And then can you close it?
A Right across here (indicating), and up to the Jumping
Bull Hall area.
Q Would you say that a very rough verbal description is
that it is the lower two-thirds of the middle third of Exhibit 71?
A That would be fairly accurate, yes.
Q Roughly, all right. Would you mind taking the seat again,
please?
What is the distance approximately, not on the diagram but in
real life, between the white house and the center of tent city?
A I think about a thousand yards.
Q All Q All right, a thousand yards, one inch equal -- excuse
me.
(Counsel confer.)
{241}
Q (By Mr. Taikeff) Mr. Adams, Mr. Sikma has kindly advised
me that the pointer has a scale on it.
A Yes, it does.
Q You can use the pointer to measure it. Would you prefer
to measure it?
A A thousand yards would be a guess on my part, sir.
Q Do you want to check that?
A (Examining) About -- be about sixteen hundred feet.
Q O.k. Five hundred yards roughly?
A Right.
Q Now, according to the scale employed in making the model,
sixteen hundred feet would be a hundred sixty inches, do you agree with
that?
A Yes.
Q And that would be about 13 feet in this courtroom, would
be the equivalent to the distance between the white house and the
center
of tent city?
A Yes.
Q Now, the only thing that remains is for you to tell us
in which direction you would measure off the 13 feet to locate tent
city
in this courtroom, if the model were expanded, is what I am saying, so
that it included tent city, where would tent city be in this courtroom?
A It would be over to the left, left side here
(indicating).
Q I am going to move, if I may, your Honor?
{242}
THE COURT: You may.
Q (By Q (By Mr. Taikeff) Tell me whether or not I am now standing in
a position approximating where tent city would be.
A I think it would be back behind you more.
Q Well, let me ask you this: Is tent city not
southeast
of the white house?
A Yes, it is.
Q And isn't this the white house (indicating)?
A Yes, it is.
Q Right here (indicating)?
A Yes.
Q And isn't the direction north, this way (indicating)?
A If so depicted, yes, I would accept that.
Q Well, if that's north, then that's south, and southeast
would be this way (indicating), wouldn't it?
A All right.
Q So then you agree that I am standing at a point that
would approximate where tent city would be if we expanded that model?
A Yes.
MR. TAIKEFF: May the record reflect that I am to the left
of Mr. Hanson, approximately four feet.
Q (By Mr. Taikeff) Mr. Adams, what is a 302?
A It is a document or piece of paper that we transcribe
notes or our recollection of a certain event on it. It remains, {243}
it
is a part of a file that we have in our office.
Q Is it fair to say that a 302 is an FBI report?
A No, it is not.
Q It is not an FBI report?
A No, it is not.
Q What am I incorrect about it, isn't it something that
the FBI uses?
A Yes, it is, but the 302 in no way is a report. It is
strictly a piece of paper which contains a certain incident and a
report
contains numerous 302's.
Q Oh, I see. The information which is recorded in the 302,
does that reflect activities of an agent?
A It can.
Q Well, tell us all the things generally that go into a
302.
A Well, you can use it to show the results of an interview.
You can use it to show the results of some activity you did. Some of
them
are used -- a signed statement is reproduced on them. Anything that we
want to make a record of, we usually put it on our standard FD-302.
Q If you were to interview a witness and the witness were
to tell you certain things, that fact or those facts would end up in a
302 most likely, isn't that true?
A Yes, usually they would.
Q And if you made observations when you went some place,
you would probably record that and preserve that information {244} in a
302, wouldn't you?
A Yes.
Q Now, you have a file for each case as a rule, do you
not, each case that you are working on?
A Well, your terminology "file" disturbs me. If that's
how you want to refer to it ---
Q (Interrupting) What is your terminology? I would be happy
to use your terminology.
A Well, there could be -- on some cases there are numerous
files -- a file.
Q I mean folders. I am talking about a case file.
A Each folder can contain several files which to me is
the bound portion of numerous 302's or reports, or whatever it might
be.
Q When an incident occurs and it appears that the FBI has
authority under the law to investigate, that incident becomes a case,
that
gets a number, isn't that correct?
A Yes, that is correct.
Q And everything that's done in connection with
investigating
that case is, as a general rule, if it has any importance or value, is
written down, is it not?
A Yes.
Q And as a general rule it is written down on a 302?
A Yes.
Q And those 302's are kept perhaps in several places, but
{245} at least in the case file, if I may refer to it as that, where
you
collect all of the 302's concerning a particular separately numbered
case?
A Yes.
Q What are the reasons for doing this?
A Just to maintain a record of what was done in this
particular
case.
Q Well, is it so that you can get your paycheck or so that
you can make some other use of it?
A Well, primarily so the record is there if we need it
for Court purposes, whatever it might be, to review for other leads in
the case, or whatever purpose it might serve.
Q So you use it to refresh your recollection?
A Yes, I do.
Q To analyze what has been done up to a certain point?
A Yes.
Q Perhaps to allow your co-workers or supervisor to catch
up on what has been happening in a particular investigation?
A Yes.
Q Do you as a general rule use or reread the 302's in order
to refresh your recollection before you testify in court?
A Yes.
Q Do you make use of 302's in the course of the trial to
interview or otherwise refresh the recollection of a potential witness?
{246}
A No, I don't personally.
Q Does anybody that you know of?
A I think ---
Q (Interrupting) I don't mean an individual by name, just
generally speaking.
A Yes, I think the attorneys probably do.
Q In fact, one of the additional functions of the 302 is
to provide the attorney who will ultimately try the case with some idea
of the kinds of information available in connection with that case,
isn't
that right?
A Yes.
Q So the 302 serves an important and official function,
isn't that correct?
MR. SIKMA: Your Honor, I would object to this, first of
all, as irrelevant. 302's are generally in-admissible.
MR. TAIKEFF: I am not offering any in evidence, your Honor.
I may use them in the course of this examination. I want to establish
what
they are.
THE COURT: Overruled.
THE WITNESS: May I have the question again, your Honor?
MR. TAIKEFF: May the question be repeated?
THE COURT: The question may be repeated.
(Question was read by the reporter.)
{247}
A Yes.
Q (By Mr. Taikeff) And because of that fact, is it not
true that 302's, as a general rule, are to be prepared accurately and
truthfully?
A As a general rule, yes.
Q Now, I understand that in connection with the events
that you personally participated in, in the early part of June 26,
1975,
you were not taking notes?
A That is correct.
Q Do you sometimes take notes of what you do in order to
be able to write up your 302's?
A Yes, usually I take notes.
Q And then you use those notes and your memory to write
the final report?
A Yes, that is correct.
Q Do you type your own report?
A No.
Q Do you see them after they are typed?
A Yes.
Q If you find any mistakes in them, do you correct those
mistakes?
A Usually, yes.
Q You mean you sometimes find a mistake which you don't
correct?
A Yes. Under some circumstances on occasion there might
{248} be a mistake or something might be left out that doesn't get
taken care of.
Q Maybe you don't understand my question. Do you ever
identify
the existence of a mistake in a 302 so that you are conscious of it and
not correct it?
A Yes, I have.
Q And you purposely don't correct it?
A Not purposely. It is under the circumstances that it
doesn't get corrected.
Q Well, give me an example of what kind of circumstances
would cause you to read a typed report that you had given to typist to
prepare, and you would recognize a mistake and you would not see to it
that it was corrected before you either signed it or put it in the case
file?
A Are we talking about a report or a 302?
Q I am talking about a 302, and I apologize for making
that mistake.
A All right. The instance I can think of offhand is when
the 302 has been prepared and has been disseminated to different areas
and perhaps even the original is in the file before we get to see it.
Q Well then, perhaps you misunderstood my original
question.
I said that after you have given your writing to the typist and you get
back now the 302 in typewritten form, you read it over, don't you, to
see
that it is correct?
{249}
A There are occasions when we don't get a chance to read
it over before it is placed in the file.
Q Do you keep a log of those that you don't read?
A No.
Q So you couldn't say with any certainty which 302's in
the course of your history, as an FBI Agent, you did not read after
typing,
isn't that correct?
A That is correct, yes.
Q And if I showed you a 302 with an error in it, you
wouldn't
be able to tell the Court and jury now that, "Oh, that's one I didn't
read,"
generally speaking?
A I might recall a certain 302, yes.
Q I said, generally speaking.
A Generally speaking, I think I could, yes.
Q You could tell us which ones you didn't read?
A Yes, I could.
Q O.k. Tell us the 302's that you haven't read.
MR. SIKMA: Your Honor, I would object to that form of the
question. The witness indicated that there might be a number of
occasions
which he might be able to recall if he were shown a particular 302.
However,
he is asking him now to recite from recollection all those that he
didn't
read.
THE COURT: Objection sustained.
Q (By Mr. Taikeff) Did you say that shown a certain 302
{250} you might remember that that was one that you did not read?
A Yes.
Q All right. Now, I ask you, other than the possibility
of your memory of a specific event being triggered, are you able now to
tell us about the 302's in the course of your career that you have not
read?
{251}
MR. SIKMA: I would object again, Your Honor. The same
question
essentially has been asked.
THE COURT: He just asked if he's able to tell.
MR. TAIKEFF: I'm not going to ask him to tell us, Your
Honor.
THE COURT: Overruled.
THE WITNESS: Could I have the question again, please.
THE COURT: The reporter may read back the question.
(Whereupon, the last question was read back.)
A Yes.
Q (By Mr. Taikeff) Do you sign or initial the 302s after
they are typed when you see them?
A Yes. We usually initial them.
Q I'm not asking you about more than one person, I'm asking
about you.
A Yes.
Q And if your initials are on a 302, is that an indication
that you've read it after it was typed?
A Generally; yes.
Q What's your current assignment?
A I'm in the process of being transferred to the Phoenix
division of the Federal Bureau of Investigation.
Q You Q Your most recent assignment prior to the transfer?
A Rapid City, South Dakota.
Q And does that place you on the Pine Ridge Reservation?
{252}
A Yes, it does.
Q And when did that assignment begin?
A I first started working the Pine Ridge Reservation in
June of 1973.
Q So for a period of approximately three and a half years
you worked that particular area?
A Yes, I did.
Q Your jurisdiction, of course, was outside the reservation
as well as inside the reservation?
A Yes, it was.
Q How much of your time did you spend on the reservation,
would you say, during that three and a half years?
A Probably 90 to 95 percent of my working time.
Q Did you have any senior status? Were you an agent in
charge or anything other than a special agent of the FBI as far as the
Pine Ridge Reservation was concerned?
A No. I did not.
Q How many fellow agents worked with you in that capacity,
the capacity in which you worked?
A What period of time are you speaking of?
Q Well, if it varied, did it vary very much as to the
number
of colleagues you had?
A Within 10 to 15 agents; yes.
Q Let's say during the year 1973, the average figure for
the year. I'm looking for a qualitative answer, not a quantitative.
{253}
A That's 15 to 17 agents.
Q And during '74?
A The figure dropped to about 11 agents.
Q And during the first half of 1975?
A Again, around 10 or 11 agents.
Q And during the second half of 1975?
A It went up to 26 or 27 agents.
Q Now you have certain equipment supplied to you by the
Federal Bureau of Investigation, do you not?
A Yes, I do.
Q You have a 357 magnum revolver?
A No, I do not. Excuse me, supplied to me by the Bureau?
Q No. The question was do you have a 357 magnum?
A Yes, I do.
Q That's personal property?
A Yes, it is.
Q How about the shotgun you were carrying on June 26th,
1975?
A That was FBI issue.
Q And the rifle?
A FBI issue.
Q And the bulletproof vest?
A FBI issue.
Q Where did you receive each of those items?
A From our office in Rapid City.
Q And when?
{254}
A I checked them out on the Monday prior to the 25th or
26th of June, 1975.
Q And when prior to that Monday had you checked out any
of those three items?
A I usually carried a shotgun and the vest with me.
Q So it was the rifle that you picked w on that Monday?
A No. I checked them out on a weekly basis.
Q The beginning of your work week you checked them out
---
A When I was going on a road trip out of town I'd check
them out. Yes. That's usually the way it worked.
Q When you say out of town, is that a euphemism for going
to the reservation?
A Anywhere. If I was going to leave Rapid City area for
an overnight trip I'd usually take them with me, wherever it might take
me. To the northern part of the state, eastern part of the state, I
usually
carry them with me.
Q That is the shotgun, the rifle and the vest?
A Shotgun and the vest.
Q How about the rifle?
A On occasion I would check a rifle out and this happened
to be one of the occasions.
Q Is there any special reason for taking that much
equipment
with you, let's say, when you go out of Rapid City into the northern
part
of the state?
A No. It was just habit I got into and I just followed
that {255} pattern.
Q Did you feel then any particular necessity to carry that
kind of protection on the reservation as opposed to what you would
carry
in Rapid City?
A No. It was no different as far as I was concerned.
Q Why didn't you carry it with you when you were in Rapid
City?
A Because it was immediately available.
Q Where did you usually carry the shotgun?
A Usually in the front seat.
Q In Rapid City, too?
A If I had a shotgun with me in Rapid City, yes, it would
be in the front seat.
Q Where did you usually keep the rifle?
A It was usually in a case in the trunk.
Q And the bulletproof vest?
A In the trunk.
Q Now in connection with the investigation which took place
beginning at approximately 4:00 o'clock on June 26, 1975, did you play
any role in that investigation?
A No, I did not.
Q Did you conduct any of the interviews of prospective
witnesses or people who had information about this matter?
A No, I did not. On June 25, 1975?
Q And afterwards?
{256}
A After that? Yes.
Q Did you have any special role in connection with that
investigation?
A No, I did not.
Q You were just another special agent working on that case?
A Yes, I was.
Q In your years on the reservation, did you see many pickup
trucks?
A Yes, I did.
Q Did you see many vans?
A I saw -- yes. I guess I could say many vans.
Q Would you say that pickups were more prevalent than vans?
A Yes, I would.
Q Would you say that pickups were a rather common sight
on the reservation?
A Yes, they are.
|| Q Q Would you say you know the difference between a pickup
and a van?
A Yes.
Q You made reference to
a jacket that was found on the body
of Mr. Stuntz which said "FBI" on the left breast area.
A Yes.
Q Was that an official piece of property issued by or
belonging
to the FBI?
A Yes. I think I could say that.
{257}
Q Do you know where it came from immediately before it
was on Mr. Stuntz' body?
A I know now; yes.
Q Of your own personal knowledge?
A Yes.
Q Where did it come from?
A The trunk of Jack Coler's car.
Q In connection with qualifying as a special agent of the
FBI, did you attend any school?
A Yes, I did.
Q For how long?
A 14 weeks.
Q Was that in Virginia?
A Part of it was in Virginia.
Q And the other part of it?
A Washington, D.C.
Q And as part of your training to prepare you to be a
special
agent of the FBI, did you receive any instruction or training and/or
practice
in testifying in court?
A Yes. Some.
Q Until what time was there gunfire in the Jumping Bull
area on June 26th?
A I would say about, it would be recollection, 4:00
o'clock.
Q And is it fair to say that from the time you got there until 4:00
o'clock,
except for that one hour truce, I think you {258} referred to it, that
there was firing at all times during that period? Not every minute that
intermittently throughout that period there was firing?
A Yes.
Q Would you be kind enough to use the pointer and show
the Court and jury based on your observation or any investigation you
subsequently
conducted the several places by area where firing came from?
A Toward my direction?
Q Well, you can identify each place and tell us
specifically
what you know about the firing from that place and then we don't have
to
do it by categories.
|| A A There was firing from the vicinity of the log house and
the vicinity of the white house and the trees to the west of the white
house (indicating). I also observed individuals around this house, the
red and tan house (indicating).
Referring to Government Exhibit No. 71.
Q Now so far you have mentioned three places. Do each of
those places represent places from which in your opinion firing was
directed
at you?
A I can state for record that, I was fired upon from the
log house, from the white house and from the vicinity of the trees
adjoining
the white house (indicating).
Q Now how about that fourth place, the red and tan house?
A I saw individuals around there during the afternoon.
To {259} the best of my recollection they never fired at my direction.
Q You saw them firing though?
A Well, I saw them in the area and I heard the shots from
what appeared to be this general vicinity in the course of the
afternoon
(indicating).
Q How many such people?
A It appeared to me to be two different people.
Q Could you say whether they were Indian or white?
A No. They appeared to be Indian to me.
Q Were they carrying long guns or rifles?
A I don't recall seeing a weapon with either one of them.
Q You mean you don't recall seeing the kind of weapon but
you know they had weapons?
A I don't recall seeing either one of them with a weapon.
There was trees. I could see them walking between the edge of the house
and in the trees here and I can't state positively that I saw them with
a weapon (indicating).
Q Were there any other places from which firing came that
you can identify?
A As I stated, when I pulled in here and parked it appeared
to me that the first shot just from sound came from this direction down
here somewhere (indicating).
Q Now there's no house there. Let's see if we can describe
that direction in some way for the record.
{260}
A I would say just to the south of the area marked "Coler's
car," Government Exhibit 71.
Q Would you say ten inches away on the chart?
A Can I state it appeared to me by the sound it came from
this area (indicating).
Q Did you see any people down there?
A Not when I came in; no.
Q Did you see any people down there at any time?
A No. I did not.
Q Are there any other areas from which you're able to
identify
firing?
A Except for the area of where, as we referred to as the
escape route.
Q Yes. Putting that aside.
A That would be it.
Q Would you be kind enough to take your seat again.
Now in your direct testimony I believe you made reference to
the areas of jurisdiction that the FBI has on Indian reservations and
although
you don't use the phrase you were referring to the act known as the
Major
Crimes Act, were you not?
A I believe it's referred to as that; yes.
Q And I think you alluded to it by saying there are certain
categories of crime such as robbery, murder, rape, I don't remember all
the examples you gave.
{261}
A Yes.
Q And that's the category of crimes which the FBI is
authorized
by law to investigate on Indian land, isn't that correct?
A As I understand it; yes.
Q Now murder is in fact included amongst those crimes?
A Yes, it is.
Q And in the course of your duties while assigned to the
Rapid City office, you had occasion to work on a certain number of
murder
cases, did you not?
A Yes, I did.
Q Did you have in the course of your official work some
idea or indication of the number of cases, irrespective of whether you
personally were working on them?
MR. SIKMA: Your Honor, I would object to this as irrelevant
and immaterial.
MR. TAIKEFF: The matter was opened on direct, Your Honor.
I'm going to just explore it briefly.
THE COURT: Very well. Proceed.
Q (by Mr. Taikeff) Do you have any information as a special
agent to the amount of business the FBI had, to put it that way, on the
reservation?
A Yes. I have general knowledge.
Q In 1974 how many killings were there on the reservation?
A Just be a guess. I'd have to say 10 to 12.
{262}
Q And one final question. What would your guess be for
1975?
A It would still be a guess. 12 to 15 maybe.
Q I believe in your direct examination you said that you
understood that Coler and Williams were working on Jimmy Eagle's case.
That's James Theodore Eagle. Did you give that testimony?
A Yes, I did.
Q And that was in connection with the question put to you
as to whether or not you saw either Coler or Williams or both early in
the day, do you recall that?
A Yes.
Q What's the basis of your understanding?
A It was just in my brief conversation I had with Agent
Price outside the Pine Ridge jail.
Q That morning?
A Yes.
Q He said something to you which made you believe that
Coler and Williams were working on the Eagle matter?
A Yes.
Q ln your official capacity as a special agent working
on this case, have you been Keeping up with the 302s in connection with
the case and reading them in addition to the ones that you yourself
authorize?
A No. I am not.
Q Did you yourself ever discover, I'm only talking about
what {263} your own investigative efforts have uncovered, not what
somebody
else may have uncovered or not uncovered, whether or not Jimmy Eagle
was
at the Jumping Bull Hall area on June 26th?
A What I personally found?
Q Yes.
A I don't think anything that I personally did indicated
to me that he was there; no.
Q Did you not testify on direct examination that there
came a time when a person by the name of Wallace Little with two people
in the front seat with him were in your immediate vicinity?
A Yes.
Q What time was that?
A I estimated it to be about 1:30 in the afternoon.
Q And he was driving away from your area, was he not?
A Yes, he was.
Q As opposed to arriving in the area?
A He arrived alone and departed with two occupants, at
least two occupants in the vehicle.
Q That departure was approximately 1:30 in the afternoon?
A That was an estimate of the time.
Q I mean approximate time, 1:30?
A Yes.
Q What time did you arrive at the Jumping Bull area?
A I estimated my arrival to be about noon.
{264}
Q And what time was the transmission from either Coler
or Williams that you heard referring to the red pickup?
A I do not, there was no transmission that I can recall
of either one of them referring to a red pickup.
Q Did you ever have any communication from them in any
form indicating that they had some contact with or perceived a red
pickup?
A No.
MR. TAIKEFF: If I might have a moment, Your Honor, please.
THE COURT: Okay.
Q (by Mr. Taikeff) Let me modify my question to eliminate
the word red from the question. Or do I have to repeat the entire
question?
A No. I would accept pickup. I recall him saying something
about a pickup.
Q What time was that?
A I'd estimate that to be about 11:50 A.M
Q Where were you when you first heard that transmission?
A Somewhere between Pine Ridge and Whiteclay, Nebraska.
Q How many miles from the Jumping Bull area would you say
you were?
A 12 to 14 miles.
Q And what would you say your average rate of speed was,
including and taking into account any stops that you made?
{265}
A At what time?
Q Getting there?
A What time period are we talking about, sir?
Q You received a radio transmission, you were 14 or more
miles away from the scene, you drove to the scene, perhaps you stopped
along the way and you arrived. That's the time period I'm talking
about.
A Well, when I first received the transmission I was going
south and then later I turned around and went back north and there was
two different speed elements there.
Q Well, from the time you first heard that transmission
at approximately 11:50, what did you do first?
A I was enroute to Whiteclay, Nebraska for lunch.
Q Were you traveling, generally speaking, in a southerly
direction?
A Yes, I was.
Q Then you heard the transmission?
A The first transmission; yes.
Q You turned around?
A After I heard "We had been hit."
Q But those two transmissions came very close to each
other?
A Within a minute or so; yes.
Q Now at the time you heard the second transmission, what's
your best estimate as to how many miles you were from the Jumping Bull
area?
{266}
A That might have been 12 to 14 miles. Probably 14.
Q Probably 14?
A Yes.
Q What would you say the time was then?
A 11:52, 11:53.
Q Did you stop before you got to the Jumping Bull area?
A Yes, I did.
Q For how long?
A Just long enough to get in the trunk to get my rifle
and vest and get back in the car.
Q How much time did that take?
A I would say less than that.
Q Could we say a minute?
A Minute would be fair.
Q For an estimate. That would be the equivalent of starting
back at 11:55 and not stopping or 11:54 and not stopping?
A Yes.
Q Did you stop at any other time?
A No.
Q Other than to get your weapon?
A No, I did not.
Q And how fast did you drive? I know you weren't driving
the exact same speed every moment, but how fast were you driving?
A I probably averaged between 80 and 90 miles an hour.
{267}
Q And so you would cover the 15 miles in about ten minutes?
A Yes. That would be a fair estimate.
Q So then your arrival would be sometime around 12:00 to
12:05?
A Yes.
Q When you got there, did you see any other vehicles?
A Just the BI police car that was with me and the two cars
that were parked in the vicinity of the log house.
Q Would you point out the log house.
A (Indicating.)
Q Thank you.
Now there was a roadblock somewhere in the vicinity, was there
not?
A Later that afternoon; yes.
Q How much later?
A Well, I would say within the first half hour. I know
the police units arrive there were, as I understood, were dispatched to
both north and south of the area to set up a roadblock.
{268}
MR. TAIKEFF: May I have a piece of paper marked for
identification,
Your Honor?
THE COURT: You may.
Q (By Mr. Taikeff) I'm placing before you Defendant's
Exhibit
75 for identification and I'm putting it face down.
Do you know a person by the name of George D. O'clock?
A Yes. I do.
Q Would you tell us who he is.
A Who he is?
Q Yes.
A He's a retired FBI agent.
Q And on June 26, 1975 was he a retired FBI agent?
A No. He was not.
Q What was he then?
A He was an agent assigned to the Rapid City office of
the FBI.
Q Did you have any occasion to speak with him on the FBI
radio that day?
A Yes. I did.
Q And from these communications do you know where he was
during the time of the transmission?
A Yes. I did.
Q And where was he?
A He was in the office in Rapid City.
Q And there are radio facilities there that can both hear
your {269} transmissions from your car and send transmissions to your
car,
isn't that correct?
A Yes.
Q Now let's go back to the question of the vehicles.
You say that when you got there there was your vehicle and a
BIA vehicle.
A Yes.
Q BIA means Bureau of Indian Affairs?
A Yes.
Q Was it a BIA vehicle or a BIA police vehicle?
A Well, it had, it was a police car; yes.
Q It was a police car belonging to the Bureau of Indian
Affairs?
A Yes.
Q Now you saw certain vehicles near a house.
A Yes. As I recall there were two vehicles parked in the
vicinity of the log house there.
Q During that afternoon or at least the first few hours
that you were there those vehicles didn't move, did they?
A No. They did not.
Q And did you see any other vehicles moving?
A Moving, no.
I saw Miss LaDeau drive in and I saw --
Q That was later in the afternoon?
A 12:30 or so; yes.
{270}
Q All right. Let's talk about 12:29 or earlier in this
particular area of inquiry.
A Not as I recall; no.
Q Did you make a transmission on your radio announcing
that you were receiving or had been receiving heavy fire from the
vicinity
of the Jumping Bull Hall?
A Yes. I did
CROSS-EXAMINATION BY MR. TAIKEFF
Q Good morning, Mr. Adams.
A Morning.
Q Do you recall that at the time of the recess yesterday
I was asking you some questions about radio transmissions --
A Yes, sir.
Q -- from you to Rapid City?
A Yes.
Q All right. For a moment I'm going to divert your
attention
to something else and we'll get back to that.
You said that you heard or felt some explosions during the course
of the afternoon of June 26, is that right?
A Yes. I did.
Q How many such explosions?
A To the best of my recollection there were three or four.
Q And at what time of day?
A I cannot recall that, sir.
It was sometime after Miss LaDeau left about 1:30.
Q What was the period of time that Miss LaDeau was in the
area?
{305}
A I estimate it to be from 12:00 to 1:30.
Q And during this period of time am I correct that she
was either in a specific house or in the area of those houses that I'm
now pointing to which are labeled residences, log cabin, white house,
green
house?
A She was in the vicinity of those three houses and then
I also saw her walk in a westerly direction.
Q Did you see where she went when she walked in a westerly
direction?
A No. She came back toward the tan and red house and I
saw her disappear off the crest of the plateau there in the direction
of,
well, when I saw her walk she'd been headed toward the vicinity which
is
marked bodies of SA Williams and SA Coler.
Q Now I've got my finger on that particular area.
A Back to your left, sir. I was just referring to the
letter.
Q Over here?
A Yes. She was walking in that general direction.
Q Am I correct that this road along which we have the
marker
of Coler's car and these houses up here are not at the same elevation?
A That is correct; yes.
Q What would you say is the difference of the elevation,
I ask you only for an approximation, between this road and the place
where
these houses are to be found?
A Approximately twenty feet.
{306}
Q Now you were back in this area somewhere, were you not?
A Back toward the curve in the road there; yes.
Q Okay. That's the road that's to the left on the chart?
A Yes, sir.
Q When you are here can you see this road where we have
the name Coler or Coler's car marked?
A No. You cannot.
Q How close do you have to come before you can see this
road coming in this way from that road where you were?
A It would just be within a few feet of the crest of the
plateau. The line depicts the crest of the plateau there; yes.
Q That's this curved line here to the south of the tan
and red house?
A Yes.
Q You have to get up to the edge of that crest before you
can see the road?
A Within a few feet of the crest.
{307}
Q Like while Miss La Deau was in the area, at least the
extent that you were able to personally see her, was there any firing
going
on?
A As I recall, there was not. But I think it was indicated
to me by other people that there was during that time.
Q Didn't you say yesterday that during that period you
received some fire?
A Yes. That would be a correct statement because, as I
said, as I recall, there was not. Now when I think, when I prepared my
documents I was under the impression there wasn't any fire at all that
afternoon, but in talking with other agents now they, and discussing
the
matter, there could have been some fire during that hour from 12:30 to
1:30.
Q Is it accurate to say that your attention was focused
in this area of the residences over here?
A During that time?
Q During that period; yes. Now only talking about that
particular period of time.
A No I think my attention was centered more around getting
assistance in there and getting law enforcement people around the south
and the west sides of this particular area.
Q Is it fair to say though that you observed no shooting
coming from the area of the residences during that period of time?
A I cannot positively state that; no. To the best of my
{308} recollection there was none, but I will not positively state that
there was none.
Q You can only relate to us what you saw or heard, is that
correct?
A That is correct.
Q As far as what you saw or heard, was there any shooting
coming from the area of the residences during that period?
A To the best of my recollection there was none.
Q Could you say where the firing was if there was --
withdrawn.
Can you say where the firing came from during that period? Not based on
your own observations, based on your investigation and consultation
with
other agents.
A It would have been in that same general vicinity there
of the three houses.
Q And in which direction was the firing going?
A It could have gone to the west as there were agents
across
there monitoring the situation or it could have been back our direction
or more to the northeast where there were other law enforcement people.
Q When you say to the west, you mean down in this area?
A Yes.
Q At l:30 in the afternoon there were law enforcement
people
down here near Coler's car?
A There were law enforcement people across the creek to
the west.
{309}
Q Where is that creek?
A It goes through the wooded area, sir.
Q Goes through this wooded area here, lower wooded area?
A Yes, it does.
Q Were there any people between the road where Coler's
car was and the law enforcement people?
A At 1:30 in the afternoon?
Q Yes.
A No. To the best of my knowledge there wasn't.
Q Do you know what prevented them, if anything prevented
them, from coming to the edge of the woods and looking at the road and
seeing Coler's car or the other car if they were both there?
A There was a group of individuals led by Delmar Eastman
entered the area to the north and northwest and proceeded in that
direction.
They at one time in the afternoon were in this area and I don't know
what
time it was they got in there. I know they received some fire from the
creek area and had trouble making it through the area because of the
heavy
brush and the way the creek goes through there.
Q What you just referred to occurred late in the afternoon,
didn't it?
A Well, Mr. Eastman
was there shortly after I arrived at noon and they were organizing this
thing. I was up at my car and all I know is later on that afternoon I
talked
with some {310} of the BI people and some of our agents that were in
there
and backed out. As far as what time they were in there, I have no idea.
Q Putting the time factor aside for the moment, do I
understand
that what you're saying is that somewhere, but unspecified exactly
where
in this lower area there was shooting going on?
MR. SIKMA: Your Honor, I would object. I think that's a
clear misstatement of the record and the testimony of this witness.
MR. TAIKEFF: I'll withdraw the question, Your Honor.
THE COURT: Very well.
Q (By Mr. Taikeff) I want you to focus your attention on
that period of time of approximately one hour which you estimate ended
at 1:30 when Miss La Deau was attempting to negotiate and she spent
some
or most of her time in this area of the residences. Now do you know
whether
during that time there were law enforcement people down here near the
creek
or in the wooded area around the creek?
A No. I do not know for sure one way or the other.
Q Do you know whether a person standing at the edge of
the wooded area where it says "Corral," the one on the right, do you
know
if a person stood there if that person could see the place where
Coler's
car was?
A No. I do not.
{311}
MR. TAIKEFF: May I have a moment to look at the model,
Your Honor.
Could the witness come over here for a moment.
THE COURT: I might mention this to Counsel for both sides.
That exhibit which I believe was designated Exhibit 21 was identified
but
it has not been offered or received in evidence.
MR. TAIKEFF: Your Honor, I'm aware of that fact and I will
phrase my questions accordingly. I'm assuming only the witness has the
ability to look at this as if he were looking at something for
identification.
MR. HULTMAN: Exhibit 20, Your Honor.
THE COURT: The Clerk just corrected me.
Do you have any objection to the use of the exhibit in that way?
MR. HULTMAN: No, Your Honor.
Q (By Mr. Taikeff) For purposes of refreshing your own
recollection as to the terrain, I ask you to look at this and tell me
yes
or no whether I am now pointing at that part of the model which
coincides
with the lower portion of the chart where the word "Corral" appears
twice?
A Yes.
Q And am I pointing to that thing which corresponds to
the word "Corral" that's written on the right-hand side of the chart?
{312}
A Yes. It appears that way.
Q Now look at that and look at this area here and tell
me, is the latter area that I'm pointing to the place where Coler's car
was found?
A Yes, it is.
Q Would you look at that, make sure that you have refreshed
your recollection as to the terrain and if you'd be kind enough to
resume
your seat in the witness box.
Now, sir, let me repeat my earlier questions. If you were
standing
at the edge of the wooded area at the western edge of the right-hand
corral,
could you see the roadway?
A Yes, you could.
Q Are there any obstructions between that corral and the
roadway?
A Just the corral fence and there is some wagons sitting
there.
Q How tall is the fence?
A I'd say approximately six feet.
Q And what type of fence is it?
A Appears to be a board or rail.
Q Can you see through it?
A Yes, you can.
Q Now between the two corrals is there area I want you
to focus your attention on. If you were standing inside the woods but
just
at the edge, is there any obstruction to one's vision that would
prevent
a person from seeing Coler's car?
{313}
A Again there is just remnants of a fence across there.
Q Could you go through it or over it?
A Yes, you could.
Q Now, with the exception of these small courses of bushes
or trees, if a person were anywhere between the southern edge of the
right-hand
corral and this part (indicating) of the wooded area, where this little
peninsula sticks out in an easterly direction, could you fail to see
Coler's
car?
A No, I think I could see it.
Q Did you at any time in the course of the afternoon see
any people in that creek or wooded area at the lower part of the
diagram,
up to 4:00 o'clock?
A No, I did not.
Q Yesterday you told us or identified for us several places
that you yourself knew firing was coming from. I think there may have
been
four specific places that you mentioned?
A Yes.
Q Can you tell us the times, generally speaking, when
firing
was coming from those areas?
A lt would have been intermittently all afternoon from
the time I arrived until 4:00 o'clock.
Q Now, earlier this morning you said that some of the law
enforcement personnel received fire from the creek area and the wooded
area, or the wooded area -- I am not exactly sure how you phrased it.
{314}
Q You are talking about this area here west of Coler's
car?
A I can't state that specifically. All I know is they came
in from the northwest edge here (indicating) -- would have been even
probably
over the edge of the board -- and came into it along the creek area in
an attempt to get up in the vicinity of the residence.
Q What you referred to before is in or below the lower
left-hand corner of Exhibit 71, is that correct?
A Yes, sir.
Q Were fingerprints taken of the various objects found
in tent city?
A Yes, they were.
Q And in the tent city area some fingerprints were found
of Mr. Peltier, isn't that correct?
A To the best of my knowledge, yes.
Q Were his fingerprints found on the dynamite that was
found there?
A I have no knowledge of that, sir. I have no knowledge
of where the prints were found.
Q Now, yesterday you identified two objects called
handi-talkies?
A Yes.
Q What was the date and the time of day when you first
saw those objects?
{315}
A It was on June 27th, 1975, and I would estimate the time
around noon.
Q Now, between 4:00 o'clock on June 26 and the time you
first saw those handi-talkies, was this area sealed off?
A No.
Q Could you say whether those handi-talkies were there
on the 26th? "Yes" or "no".
A I do not know.
Q You don't know whether you could say?
A No, I do not know if they were there or not.
Q So you couldn't say whether they were there, is that
correct?
A No. I was not in that house on the 26th.
Q Could you say whether they were on the 25th?
A No.
Q Or the 24th?
A No.
Q Or even on the morning of the 27th?
A Yes.
Q You could say they were there on the morning of the 27th?
A Yes.
Q How could you say that?
A Because we entered the house before noon on that morning,
and they were there at that time.
Q At what time did you enter the house?
{316}
A Well, all I know is it was before noon sometime because
as soon as the warrants arrived we started our search.
Q Could you say they were there two hours before you
entered
the house? "Yes" or "no".
A Before I entered the house, no I could not say that.
Q Now, when you saw them, they were both there, is that
correct?
A Yes, it is correct.
Q And were they turned on?
A I don't know if the radios were turned on. The chargers,
as I recall, were plugged in and they were charging the handi-talkies.
Q How could you tell they were charging?
A As I recall, there is a little light on there that was
on which shows they were active.
Q Did you check the radios to see if they were?
A No, I did not.
Q Now you have identified in the course of your direct
testimony a number of shell casings, that is to say, the brass that
remains
after a bullet or a cartridge is fired. Were those the only indications
which were found in that area?
A No, they were not.
Q Can you tell us where other casings were found? Use the
pointer if it is convenient for you.
A Well, there were casings found in the vicinity of all
the {317} houses depicted on Government Exhibit 71 and in the vicinity
of the tent area, and in some of the vehicles located in the tent area.
Q How many casings were found in the vicinity of the house,
in addition to those which you identified yesterday?
A It wuld be an estimate of a couple hundred.
Q Were casings found anywhere else in the area?
A There were -- I know there were one or two casings found
in the vicinity of Coler's car or in Coler's car.
Q How about in the wooded area near the creek?
A To the best of my recollection I know of none. There
could have been. I was not in that area, did not conduct any searches
in
that area so I have no knowledge of any.
Q Who did?
A Some of the members of the group from Denver were in
there, I know. They found some objects in that area. That off the top
of
my head is the only people I know that were in there. I am sure there
could
have been others.
Q Do you know if they were looking for casings when there?
A Any remnants of a crime, sir.
Q What was the total number of casings that were found?
A In the entire area?
Q Um-hum.
A There were several hundred. I don't know exactly what
the final count was.
{318}
Q Do you know whether it is illegal for a person to carry
a gun on the Reservation?
A Not to my knowledge.
Q Do you know whether many people do, in fact?
A I would say a few, only a few. Now, law enforcement
people
do, but outside of that, you know, you will see a farmer, a rancher now
and then, with a rifle in the rack behind him in his pickup. If you
want
an overall figure, I would say few people do.
Q Now, yesterday you were asked about the number of agents
who were working on the Reservation in 1974, and the first six months
of
1975, and the second six months of 1975. Do you recall those questions?
A Yes.
{319}
Q Did you interpret that question to mean how many agents
were permanently assigned to the Rapid City office?
A Yes.
Q Were there other agents working on the reservation who
were temporarily assigned to the reservation?
A Yes. They were.
Q Okay. I want to ask you the same three questions but
this time I want you to interpret my question literally, the number of
agents working on the reservation, not the number of agents permanently
assigned to Rapid City.
How many in 1974 approximately?
A Ten to fifteen.
Q First six months of 1975?
A Again that same number. Around eleven or twelve to be
exact I think.
Q And during the second half of 1975?
A Immediately following June 26 there was maybe as many
as one hundred fifty agents on the reservation and then that went down
to twenty-six or so at the end of the year.
Q Now the twenty-six or so, are those --
A Excuse me. Twenty-seven or so.
Q All right. Twenty-seven. By the second half of 1975 the
number of permanently assigned agents to the Rapid City office grew to
twenty-six or twenty-seven, is that right?
{320}
A Yes. By the end of the year.
Q And prior to that time how many were permanently assigned
there?
A Eleven or twelve to the best of my recollection.
Q Now was it part of your function as an FBI agent who
spent a considerable amount of his time on the reservation to keep
track
of what was happening generally, I'm not talking about specific facts
with
reference to specific cases, but to have some sense of what was going
on
in that community and what the general trends were and what was
happening
in the communities in which you worked?
A Did you say --
MR. SIKMA: Your Honor, I would object to this. There's
no showing at this time that Leonard Peltier was a member of the
community
in the Pine Ridge Indian Reservation.
THE COURT: Read the question back.
(Whereupon, the last question was read.)
MR. SIKMA: Your Honor, it also calls for speculation on
the part of this witness.
MR. TAIKEFF: I'm not asking him to speculate, Your Honor
I'm asking whether it was part of his function to be aware in that kind
of way.
THE COURT: You may answer.
A No.
Q (By Mr. Taikeff) Did you in fact become aware of events
{321} in the community other than those which were of direct interest
to
you because of a pending case.
MR. SIKMA: Your Honor, I would object. That's irrelevant.
THE COURT: I beg your pardon?
MR. SIKMA: That is irrelevant, Your Honor, to the case
at hand.
THE COURT: Sustained.
*Q (By Mr. Taikerf) Did you know that there was an AIM
encampment prior to June 26, 1975 in that area?
A No.
Q Did you know of the existence of tent city?
A No.
Q Did you know of the presence of the people who were
living
in tent city prior to June 26, 1975?
A No.
Q Did you ever hear the word "goon" on the reservation?
A Yes.
MR. SIKMA: Your Honor, I would object to that as
irrelevant.
MR. TAIKEFF: Your Honor, I ask that it be taken subject
to connection. I will connect it.
THE COURT: Very well.
A Yes.
Q (By Mr. Taikeff) What does that word mean on the {322}
reservation?
A It's, my interpretation of that word is that it's a title
or a name given to a supporter of the former tribal chairmen, Dick
Wilson.
Q Was the American Indian Movernent an organization that
supported Mr. Wilson?
A I --
MR. SIKMA: Your Honor, I would object to this as totally
irrelevant.
MR. TAIKEFF: Your Honor, once again I represent to the
Court that I will connect this.
THE COURT: You may answer.
A I have no knowledge of that.
Q (By Mr Taikeff) Do you have any knowledge whether the
organization AIM was the constant adversary of Mr. Wilson?
A No.
MR. SIKMA: Your Honor, I would object to that on the
grounds
that no foundation has been laid.
THE COURT: He has answered that he has no knowledge. The
objection is sustained.
Q (By Mr. Taikeff) With reference to your earlier testimony
about a certain limited number of people carrying guns, how about those
who
were known as goons, did they generally carry guns?
MR SIKMA: Your Honor, I would object again as this being
a matter that's irrelevant.
{323}
THE COURT: Overruled.
A I, I have no knowledge of that.
Q (By Mr. Taikeff) Prior to June 26, 1975 did you receive
any word, and I'm only talking about within the week which preceded
that
date, of an impending armed confrontation between any two factions on
the
reservation?
A No. I received no word.
Q How many people were staying, approximately how many
people were staying in tent city?
MA: Your Honor, I would object to this. Counsel should
be specific as to time of this witness's knowledge.
Q (By Mr. Taikeff) Let's say on or about June 25.
A I didn't even know tent city existed at that time.
Q But you subsequently ascertained that there were people
staying there, did you not, through investigation?
A Yes. I did.
Q All right. I'm talking about what you learned as a result
of your investigation.
MR. SIKMA: Your Honor, I would object to this as calling
for hearsay on the part of this witness.
THE COURT: Overruled.
A I think there were approximtely eleven people residing
in that area.
Q (By Mr Taikeff) Now you spoke in your earlier testimony
about an escape route, --
{324}
A Yes.
Q -- do you recall?
A Yes.
Q And that was a route generally speaking which was a
north-south
line running from tent city in a southerly direction, correct or
incorrect?
A That --
Q I don't mean a straight line. I'm just speaking
generalities
now.
A That would be a fair statement; yes.
Q From your vantage point were you able to see any part
of that escape route?
A Yes. I was
Q And at any time during the day were you able to perceive
any people proceeding along that escape route?
A Yes. I was.
Q How many people did you observe.
A I just took a glance up there and I estimate it to be
six or seven people that I observed.
Q Would you say that you necessarily saw all of those who
may have been moving along there at that time or are you saying that
you
saw six, you don't know exactly how many there were?
A I feel I probably didn't see all of them; yes.
Q And what time of day was that?
A I estimate it to be about 6:00 pm., quarter to 6:00 as
a {325} matter of fact.
Q Did you have occasion to see a young Indian boy about
twelve years of age that afternoon?
A Yes. I did.
Q And what time did you see him for the first time?
A I estimated that time to be about 3:00 p.m.
Q And do you remember his name?
A Yes. I do.
Q What is his name?
A Jimmy Zimmerman.
Q Did you ascertain where he came from prior to the time
you saw him?
A On the 26th? Did I ascertain on the 26th where he came
from; is that the question?
Q Yes, sir.
A Not on the 26th; no.
Q Through subsequent investigation?
A Yes.
Q And where did he come from?
A From the area of the tents.
Q And in connection with what event did he leave the tent
area according to your investigation?
A Preparation for escape.
Q And did the so-called escape occur at the time he left
the tent city area?
{326}
A It could have started at that time. I didn't see any
individuals leaving the area until, as I stated, 5:45.
Q Can you say with any certainty that the people you saw
on the so-called escape route were the people from tent city who were
leaving
the area?
A No. Because the distance --
Q Just answer yes or no.
A No.
Q Where were you looking at 3:00 p.m., what direction when
you saw Jimmy Zimmerman?
A I don't know where I was looking. My attention was
directed
to that area from a transmission from the State radio.
Q And where were you at that particular time? I'll use
the pointer and you can tell me or if you want you can use it.
A At that time I was at my vehicle in this general location
right here.
Q Almost at Highway 18 in the upper left-hand corner of
the Exhibit 71, is that correct?
A Yes. It is.
Q Now from that position what is the furthest point that
is on the chart that you could see?
A It woul be the area just to the south and east of the
tents.
Q Put your pointer there.
{327}
A (Indicating.)
Q Is that high ground relative to tent city?
A No. Oh. Relative to tent city? No.
Q Same level?
A Approximately; yes.
Q So could you see tent city from there or at least the
trees surrounding tent city?
A Yes. The tops of the trees.
Q Now if somebody were in tent city and walked south,
viewing
the matter from your vantage point, you would see that person
presumably
at or shortly after the time the person came out of the trees, isn't
that
correct?
A No. I could not.
Q Now, you say that you could see the area south of the
trees.
A I could but I'm referring, sir, to an area a mile and
a half over here, a mile over this way.
Q I see. Okay. Can you explain why you can't see the area
immediately south of the trees from the vantage point that you were at?
A This area here?
Q Yes. For example, almost at the right-hand edge of
Exhibit
71.
A Yes. For two reason.
This area has an elevation comparable to this area {328} here
and also the trees here would obscure my vision into this area.
Q I see. Now as to that area on the right-hand side of
Exhibit 71 that's lower than tent city, isn't it?
A No. I would say the elevation is about the same because
the, the creek runs through there and then it comes back up and, again
at about the same elevation.
Q Can you tell us approximately what the comparable
elevation
is of your vantage point to tent city, to the floor of tent city, not
the
top of the trees?
A I would say the elevation in the trees here would be
twenty to thirty feet lower in elevation than my vantage point.
Q So then you could see at some point beyond the trees
that you couldn't see just at the southern edge of the trees?
A That is correct.
Q How far out would, if the first point where you could
see the terrain beyond the trees going in a southerly direction? I'm
not
asking where you first saw a person I'm asking you where you could
first
see the terrain.
A Right. There is an old road that comes down along this
area and back along the west edge here and that is about where I could
see from my vantage point.
Q Would you say that's about a quarter to a half mile
beyond
tent city?
A At least a half mile; yes. Maybe even further.
{329}
Q So from tent city to one-half mile beyond tent city in
a southerly direction if one or more persons were walking, you would
not
be able to see them from your vantage point, is that correct?
A Yes. It is.
Q Now will you oint out for the Court and the jury, where
was Jimmy Zimmerman the first time you saw him?
A I have estimated him to be in this vicinity right here.
Q Now am I correct that what caused you to look in that
direction and see him was the fact that you received a radio
transmission
saying the equivalent of, I'm not trying to quote it, "There's sombody
up there in a certain direction," and you turned and there he was?
A That is correct.
Q Now if people left the tent city area at the same time
as Jimmy Zimmerman, left the tent city area, you wouldn't have seen
them,
would you?
A That is correct.
Q You may resume the witness stand, sir.
I believe that you told us yesterday that the shooting stopped
at 4:00 p.m.
A Yes. That was my estimate; yes.
Q Is it not a fact that the shooting continued until beyond
7:00 p.m.?
A Well, when the individuals went out the south end --
{330}
Q Just yes or no, sir.
MR. SIKMA: Your Honor, if the witness cannot answer the
question by a yes or no, I think that it would be fair for him to
explain
his answer.
MR. TAIKEFF: Your Honor, I don't disagree with that but
I think he should say that the question can't be answered with a yes or
no.
THE COURT: Are you able to answer the question yes or no?
THE WITNESS: I'd have to have the question again, sir.
THE COURT: The reporter will read back the question.
(Whereupon, the last question was read.)
A Yes.
Q (By Mr, Taikeff) Now you said smthin I believe yesterday
about the people you saw walking south along the so-called escape route
shooting, is that correct?
A Yes.
Q And that occurred about 6:15?
A About 5:45.
Q About 5:45. Who was doing the shooting at about 7:00
p.m.?
A I have no idea.
Q Who was doing the shooting at 7:14 p.m?
A Again I do not know.
Q Who was doing the shooting at 7:16 p.m.?
{331}
A I do not know that.
Q And who was doing the shooting at 7:17 p.m.?
MR. SIKMA: Your Honor, I would object. This witness has
stated that he doesn't know the times or where the shooting was going
on.
It's very clear.
THE COURT: Well, it's without foundation too. There's no
evidence that there was any shooting at those particular times.
MR. TAIKEFF: The witness has not denied that there was
any shooting.
THE COURT: You may ask the witness if there was any
shooting
at those particular times again and then if he answers yes you may ask
him if he knows who.
MR. TAIKEFF: Yes, Your Honor.
Q (By Mr. Taikeff) Do you deny that there were shootings
at the time that I stated?
MR. SIKMA: Your Honor, I would object.
THE COURT: Now that's not a matter of whether he denies.
It's a matter of whether he knows.
The objection is sustained.
Q (By Mr. Taikeff) Was there any shooting at the times
that I stated?
A I have no knowledge of any shooting at those times.
Q Where were you between 7:00 and 7:30?
A At that time I was probably in the wooded area to the
south, southwest of the houses conducting the search.
{332}
Q In that creek area?
A Yes.
Q Did you hear any shooting then?
A Not that I can recall.
Q Did you hear any radio transmissions at that time?
A I did; yes.
Q What, what was the facility through which you heard radio
transmissions?
A It was from Agent Williams' car.
Q Was that car playing transmissions on the FBI frequency?
A Yes. It was.
Q Do you know who a person named Ann M. Johnson is?
A Yes. I do.
Q Who is she?
A She's a secretary in our office in Rapid City.
Q And do you know what, whether she was working on June
26, 1975?
A Yes. She was.
Q And do you know whether she was working from
approximately
noon beyond 7:00 p.m. that day?
A I assume she was. I don't know what time she quit that
evening.
Q Do you know what duties she was performing that
afternoon?
A No. I do not.
Q I show you Defendant's Exhibit 75 for identification
and {333} ask you to look at it till you ascertain what it is and what
it reflects.
It's not in evidence and its contents cannot be read out loud.
A I can see what it is.
Q Have you ever seen it before?
A Yes. I have.
Q When did you see it for the first time?
A I believe as near as I can recall it was about a year
ago.
Q And is it a 302?
A Yes. It is.
Q Prepared in the course of the official function of the
FBI?
A Yes.
Q By an agent of the FBI?
A Yes.
Q In connection with this case?
A Yes.
Q Now, sir, would you be kind enough to turn to page 25.
Before you do that, sir, let me ask you a question.
Are you able to tell us now from your memory either verbatim
or by paraphrasing anything that came over the radio, the FBI radio
between
7:00 and 7:30 p.m.; yes or no?
A No.
{334}
Q Would you look at page 25 and 26 and see if that in any
way refreshes your recollection.
A No.
Q Have you read both of those pages?
A As I remember, I was not in any position to monitor the
radio transmissions between these times. As I recall, now I think I was
in the wooded area participating in the search.
Q Didn't you tell us a few minutes ago that you were able
to hear FBI communications over the radio in Williams' car? Yes or no.
A Yes.
Q And when I asked you --
MR. SIKMA: Your Honor, I would object to this line of
questioning.
It's totally misleading. The witness has indicated that he heard the
sound
of the radio. He hasn't indicated that he monitored the radio and
furthermore
he's indicated that he wasn't in a position to listen to this radio
communication.
This form of testimony indicates that he in fact turned off the radio
and
left the area.
MR. TAIKEFF: Would Mr. Sikma prefer to go up and whisper
in the witness' ear as to what his testimony should be on
cross-examination.
MR. SIKMA: Your Honor.
MR. TAIKEFF: There was no such testimony in this case thus
far.
{335}
MR. SIKMA: Your Honor, the witness testified that on direct
examination that that is what occurred and he also indicated just
moments
ago that he was not monitoring radio conversation.
MR. TAIKEFF: Your Honor, the record will clearly reflect
that I asked him whether or not a few moments ago, a few minutes ago he
said that he was in the wooded area and he was able to hear the radio
from
Williams' car and he said yes to that question. Now Mr. Sikma wants to
throw him some signals. Perhaps we could have a recess so they could
have
a conference.
MR. SIKMA: I object to that clearly.
THE COURT: That is argumentative and it will be stricken
from the record.
Specifically what is your objection now?
MR. SIKMA: Your Honor, the line of questioning, number
one, is misleading and, number two, Counsel has given a misstatement of
the record at this point.
THE COURT: Well, it may be that this is something that
you could bring out on redirect. I'm going to permit the questioning to
proceed at this time.
Q (By Mr. Taikeff) Do you wish to change your answer?
A No.
Q In connection with my question as to whether or not you
had earlier in your testimony within the last seven or eight {336}
minutes
told us that you were in the wooded area conducting a search and you
were
able to hear FBI transmissions on Williams' car, the question is do you
wish to change your testimony in that regard? Yes or no.
A No. But I could clarify it.
Q That's a chance you'll have on redirect examination.
Now when I ask you to look at Defense Exhibit 75 for
identification,
pages 25 and 26, did you read those pages before you responded and
said,
"I didn't hear any transmissions," or the equivalent? Yes or no. Did
you
read the text of the pages?
A No, I have not.
Q Do you know how to sight read an entire page at a glance?
MR. SIKMA: Your Honor, I would object. This is
argumentative.
He's arguing with the witness. He indicated that he didn't read the
entire
transcript.
THE COURT: Sustained.
Q (By Mr. Taikeff) How would you be able to respond so
quickly, Mr. Adams, the minute you turned to page 25? What prompted you
to say almost instantly, "I didn't hear those radio transmissions"?
A Because I didn't hear any specific radio transmissions
at this particular time.
Q Now I asked you when I handed you that document to look
at pae 25 and 26 to see if it refreshed your recollection. Would {337}
you be kind enough to read those two pages and tell us whether it
refreshed
your recollection in any way.
A Yes, I will.
This does not refresh.
MR. SIKMA: Your Honor, I would like to ask a question on
voir dire to determine whether or not this witness can answer that
question.
MR. TAIKEFF: I think my question is clear cut, Your Honor.
MR. SIKMA: Very well.
THE COURT: Are you withdrawing your request?
MR. SIKMA: Yes. I'll withdraw it.
A No. This does not refresh my memory.
Q (By Mr. Taikeff) Getting back to Ann Johnson, what was
she doing that afternoon in the Rapid City office?
MR. SIKMA: Your Honor, might I ask a question on voir dire
for the purpose of making a possible --
THE COURT: I think all you need to do is make an objection.
There is no foundation he knew what she was doing.
MR. SIKMA: Objection. No foundation, Your Honor.
THE COURT: Objection is sustained.
Q (By Mr. Taikeff) Mow that official FBI document, does
it reflect what she was doing? Yes or no.
MR. SIKMA: Your Honor, I would object again. There {338}
is no foundation.
MR. TAIKEFF: Yes, there is. The document is in front of
the witness.
MR. SIKMA: In addition it's hearsay.
THE COURT: It's not in evidence.
MR. TAIKEFF: I understand. I'm laying the foundation to
offer it in evidence.
MR. SIKMA: Your Honor.
MR. TAIKEFF: HE has the document in front of him and I'm
asking him without saying what its content is whether that official
document
prepared in the official course of the FBI business reflects what she
was
doing that afternoon. That's my foundation.
MR. SIKMA: Your Honor, this witness cannot answer. This
document cannot be offered to this witness because the witness didn't
prepare
the document. While it may be a document that was prepared in the
course
of business, it is not the type of document that is an exception to the
hearsay rule.
MR. TAIKEFF: I'm going to offer it as an official business
record, Your Honor.
MR. SIKMA: We would object, Your Honor.
THE COURT: I'm going to sustain the objection to the
question
that was asked of this witness.
MR. TAIKEFF: May I continue to pursue laying the foundation
to the introduction, Your Honor?
{339}
THE COURT: You may.
MR. TAIKEFF: Thank you.
Q (By Mr. Taikeff) Was the document which is in front of
you, Defense Exhibit 75 for identification, prepared in the ordinary
course
of the official business or function of the Federal Bureau of
Investigation?
MR. SIKMA: Your Honor, I would object as irrelevant. That
can't go to laying the foundation for this particular document because
it's not a document that's admissible as a business record under the
Business
Records Act, nor as an exception to the hearsay rule.
THE COURT: Counsel approach the bench, please.
(Whereupon, the following proceedings were had at the bench:)
THE COURT: Why do you feel that it is an exception to the
Business Records Act, Rule 803?
MR. SIKMA: Your Honor, if that were the case we could put
into evidence our 302s as evidence because all 302s are conducted in
the
ordinary course of business, but because they are made in the course
for
the purpose of preparing an investigation for prosecution, they are
clearly
not a business record for that purpose. If they were admissible, we
could
put in any of these documents as business records and there is a clear
exception that documents prepared for the course of prosecution are not
admissible.
{340}
There are two cases here, one is Police Reports, USA versus
Schriever,
414 Fd 2d 46th, 5th Circuit, 1969. Secondly, the treasury claim, for
example,
was found inadmissible in U.S. versus Thompkins which is an eighth
circuit
case which came down on 10/24/74.
I don't have the citation date. It is an eighth circuit court
in U.S. versus Thompkins. It was decided on 10/24/73.
THE COURT: What did the fifth circuit hold in 414 Fd 2d
46?
MR. SIKMA: Your Honor held that police reports were not
admissible as business records.
MR TAIKEFF: By prosecution. Am I not correct, Mr. Sikma?
MR. SIKMA: I do not know.
MR. TAIKFFF: I think you'll find that's what the decision
dealt with because they were constituted self-serving statements. But
here
the adverse party is seeking to put in the information collected by the
investigative arm of the prosecutor in this case and that is not
relevant
here.
THE COURT: I don't think that this 302 would be available
as far as this witness is concerned except if it were his report and
were
in conflict with what he testified on the witness stand.
MR. TAIKEFF: He has official knowledge as an FBI agent
{341} as to what the FBI functions were and who did what on that
particular
day and he recognizes this document as an official, an officially
prepared
recordation of those activities and there is substantial reliability.
The
reason there is an exception to the hearsay rule because there is a
reliability.
Even though this witness has no direct personal knowledge, he does know
enough about the general circumstances to know that that document
undoubtedly
reflects the truth. That's all we need.
The government is in a peculiar position trying to argue this
document is unreliable, it being a document which they prepared and
turned
over to us pursuant to law.
MR. SIKMA: We prepared it, but this document can't impeach
the testimony of this witness because this witness has no knowledge of
this fact and he stated that he has no knowledge of gunshots being
fired
at that time of the day.
MR. TAIKEFF: That's for the jury to determine.
MR. SIKMA: It's entirely an improper time for him to
introduce
this document.
THE COURT: I will not, unless you can show me some
authority
why this document should come in, I will not permit this document to be
received on the basis of this witness' testimony.
MR. TAIKEFF: Yes, Your Honor.
MR. SIKMA: Your Honor, I would object to any {342} further
questioning with regard to this document on that basis.
MR. TAIKEFF: Well, this was some background to that
concerning
the underlying facts that this witness does have personal knowledge
that
I intend to question him about. I think Your Honor will find that those
questions are clearly not objectionable. Concerns his own personal
knowledge.
THE COURT: And the document could be used to refresh his
recollection.
MR. SIKMA: He has indicated, Your Honor, that it does not
refresh his recollection.
THE COURT: I understand that. Particularly with reference
to those two pages.
MR. SIKMA: That's correct.
MR. TAIKEFF: That's clearly understood, Your Honor.
(Whereupon, the following proceedings were had in the courtroom in the
hearing and presence of the jury:)
THE COURT: The record may show that the objection is
sustained.
Q (By Mr. Taikeff) Do you know where Ann Johnson works
in the Rapid City office?
A I don't understand the question.
Q The Rapid City office consists of one or more rooms in
the federal building?
A Yes, it does.
Q Do you know where in that suite of offices Ann Johnson
{343} works?
A Yes, I do.
Q Can you describe or designate for us the room in which
she works?
A What's the tense, worked or works?
Q Let's get back to June 25, 1975.
A At this specific time I think she was a stenographer
in the steno pool, as I recall.
Q Was there a room set aside for people assigned to the
steno pool?
A Yes.
Q And was there any facility in there such as a loudspeaker
that would broadcast transmissions going out on the FBI frequency?
A No. I don't believe there was.
Q As far as you know, when Ann Johnson was at her place
of assignment on that day, she could not, as a general rule, hear the
radio
transmissions?
A To the best of my recollection, that's correct.
Q Sir, I'm placing before you Defendant's Exhibits 76 and
77 for identification.
MR. SIKMA: Your Honor, might I see what those documents
are?
MR. TAIKEFF: Your Honor, I'm not offering them in evidence
yet. I'm merely placing them before the witness for {344} the witness'
perusal.
MR. SIKMA: Your Honor, I would merely like an opportunity
to see what the witness is looking at.
MR. TAIKEFF: I don't believe I'm required to show the
government
and I will not do so voluntarily. But I will, of course, if Your Honor
asks me to.
THE COURT: Well, at this point I'll deny the request.
MR. TAIKEFF: Thank you, Your Honor.
Q (By Mr. Taikeff) Have you ever seen either of those two
documents before?
A No. I have not.
{345}
Q Now, I would like to direct your attention once again
to the early portion of the period of time that you were at the Jumping
Bull Hall area on June 26, and in particular ask you to focus your
attention
on the half hollr following your arrival there at approximately 12:00
noon.
Now, I believe that our point of departure yesterday afternoon
was a question to you as to whether or not you broadcast over your
radio
that you were receiving heavy fire from the vicinity of Jumping Bull
Hall,
and you said, "Yes," am I correct about that?
A Yes, sir.
Q Are you able to say from your own memory what time you
made that transmission?
A As I recall, I made several transmissions to that effect.
Q Can you tell us what times were involved?
A No. It would have been at various times throughout the
afternoon.
Q Well, do you recall making a transmission shortly after
your arrival in which you said -- and I am not intending to quote you
precisely,
just giving you the general sense of what I am asking you about -- that
"We are under fire, that you guys are going to have to direct us to
where
to go, we don't know where those guys are, and they are firing at us
like
crazy." Do you recall anything like that?
A I could have made a transmission similar to that, yes.
{346}
Q Do you know whether that was your first transmission on the
FBI frequency?
A No, I do not.
Q Can you tell us whether the next transmission you made
after the one that I have paraphrased for you was to the extent that
you
were receiving heavy fire from the vicinity of Jumping Bull Hall?
A I could have made that transmission, yes.
Q Now, at or about the time that you made a transmission
that you were under heavy fire from the vicinity of Jumping Bull Hall,
did you also say there was a red pickup leaving the Jumping Bull Hall
area
going north and seeking some assistance in pursuing that vehicle? "Yes"
or "no".
A I nced the time stance, sir.
Q I would say at approximately 12:18 p.m.?
A No. I do not recall making that transmission.
MR. TAIKEFF: Could I have a moment, your Honor, to look
at this document which was just handed to me?
THE COURT: You may.
(Counsel examines document.)
Q (By Mr. Taikeff) I gather that you believe you made such
a transmission but you say it wasn't at or about 12:18, it was at some
other tine, am I correct in my surmise?
A Generally speaking, yes.
Q And am I also correct that the time that you made such
a {347} transmission would be 1:30 p.m.?
A That time would probably be more appropriate, yes.
Q But you are sure you didn't make that transmission at
12:18 p.m.?
A Yes.
Q How do you know that you didn't do that, on what do you
base that statement?
A Because I don't recall a red or red and white pickup.
However, it was described being -- leaving that area at that time.
Q Is it possible that you have forgotten?
A No, it is not. It is not.
Q Do you ever forget anything?
A Yes, I do.
Q Why is it not possible that you forgot that fact?
A Well, because to the best of my recollection there was
no vehicle leaving about that time.
Q Mr. Adams, do you recognize that if you forgot something,
you wouldn't have any recollection?
A Yes.
Q I ask you why you are so certain that you didn't do it
and have forgotten it?
MR. SIKMA: Your Honor, I would object to this as
argumentative.
THE COURT: Sustained.
{348}
Q (By Mr. Taikeff) I show you Defendant's Exhibit 75 for
identification again, and I direct your attention to the lower portion
of the first page going over to the top of the second page; and I ask
that
you read that to yourself.
A (Examining) All right.
Q Does reading that in any way jog your memory?
A No, it does not.
Q Mr. Adams, isn't it a fact that you are not telling us
the truth about that?
MR. SIKMA: I object, your Honor. This is argumentative
and --
THE COURT: (Interrupting) Sustained.
Q (By Mr. Taikeff) Mr. Adams, isn't it a fact that you
don't want to admit that you made that transmission?
MR. SIKMA: Objection.
MR. HULTMAN: May we approach the bench?
THE COURT: I think counsel is aware of the proper way of
impeaching the witness.
MR. TAIKEFF: Your Honor, I am not ready to impeach him
yet. I am first inquiring as to whether or not it is his testimony that
he is telling the truth. I don't feel bound by his answers since I am
cross-examining.
THE COURT: You are bound by his answer unless you have
some other impeaching evidence. You cannot argue with the witness. He
has
answered. If you have some --
{349}
MR. TAIKEFF: (Interrupting) I take his answer. I am asking
him a different question as to whether he has consciously told us the
truth
or not in giving that answer. That's an entirely separate question, and
I think --
THE COURT: (Interrupting) I will allow the witness to
answer
that question.
MR. TAIKEFF: I don't believe I finished the question. If
I may complete it, your Honor?
THE COURT: You may.
Q (By Mr. Taikeff) I ask you whether or not it is your
conscious motive at this time to deny that transmission so as to
eliminate
from this case the red pickup truck that left the area at about 12:18
p.m.?
"Yes" or "no".
MR. SIKMA: Your Honor, I would make the same objection,
and there is no basis for counsel to ask this question.
MR. TAIKEFF: There is, your Honor, a good faith basis,
and I will establish that in about one minute without any doubt about
it.
MR. SIKMA: Your Honor --
**THE COURT: (Interrupting) The objection to the question
is sustained.
Q (By Mr. Taikeff) You testified in another trial in
connection
with these events, sir?
A Yes, I did.
{350}
Q I am going to refer to Page 238 of the transcript of
those proceedings. I ask you, sir, when you testified at that other
trial
arising out of these events, did you testify under oath?
A Yes, I did.
Q Did you testify pursuant to essentially the same oath
you took in this case?
A Yes, I did.
Q And did you tell the truth as you knew it then?
A Yes, I did.
Q And was that trial last June and July?
A Yes, it was.
Q And as a rule, when you have experienced a certain event,
is your memory better close to that event or is it better further away
from that event in time?
A Usually it would be closer to the event in time.
Q Then, sir, were you asked the following question under
oath and did you give the following answer under oath:
Question: And did you not give instructions at 12:18 that
there was a red pickup leaving Jumping Bull Hall area going north, and
you instructed people to stop this pickup?
Answer: Yes.
The question is, were you asked that question and did you give
that answer under oath? "Yes" or "no".
A Yes.
{351}
Q Since June 26th, 1975, have you intermittently worked
on this case?
A Yes, I have.
Q And ln that capacity have you interviewed witnesses or
prospective witnesses or people you believed in your official capacity
had knowledge of the events of that day?
A Yes, I have.
Q Did you have any conversations at any time with a person
known as Wish Draper?
A Yes, I have.
Q Without revealing the content of your conversations,
approximately how many times?
A Are you speaking of dates, because one day there was
probably two or three conversations we had.
Q Any way you want to count it, whichever you think is
most accurate and most revealing of the truth.
A I would say three or four times.
Q How about a person by the name of Norman Charles?
A The question is, did I discuss this case with him?
Q Did you in your official capacity as an FBI Agent,
working
on this case, interview, question, talk with, consult with Norman
Charles?
A Yes.
Q How many times?
A Once or twice.
{352}
Q Norman Brown?
A Three or four times.
Q Mike Anderson?
A Three times.
Q As of right now, how old is Wish Draper?
A I believe he is 20 or 21.
Q Norman Charles?
A Approximately 20. I have no idea of that.
Q Norman Brown?
A I believe he is 16 or 17.
Q Mike Anderson?
A 18.
Q Am I correct, sir, that the second time you spoke with
Norman Charles was in the State of Washington within the last few weeks
when you served the subpoena upon him to appear in this case?
A That is correct.
Q Did you ever say to any of the four people whose names
I have mentioned in the last few minutes that if they did not cooperate
with the FBI, you would see to it that they would be indicted for the
murders
which are the subject matter of this case? "Yes" or "no".
A No.
Q To none of them?
A Not that I can recall, no.
{353}
Q What do you mean, "Not that you can recall", is it
something
that you might have had in your mind but don't remember saying?
A No. I will state, I will answer that question "no".
Q When you served the subpoena upon Norman Charles in the
State of Washington, specifically now, did you tell him that if he did
not cooperate, that he would be indicted for the two murders and spend
tne rest of his life in prison?
A No, I did not.
Q Where are you assigned right now, what is your official
oifice of assignment?
A Phoenix Division of the Federal Bureau of Investigation.
Q Do you have -- when I say "you", I mean the FBI -- do
you have offices in the State of Washington?
A Yes, we do.
Q And do you know whether the United States Marshal's
Service
has offices in the State of Washington?
A To the best of my knowledge they do, yes.
Q Are you aware of whether or not the Marshal's Service
would serve a subpoena for the FBI?
A Yes. As I understand it, they will, yes.
Q And have you ever had occasion to have another agent
in another city at a distance serve a subpoena for you in connection
with
a case you are working on?
A Yes.
{354}
Q Why did you go personally to the State of Washington
to serve a subpoena on Norman Charles?
MR. SIKMA: Your Honor, I would object. This is totally
irrelevant.
THE COURT: Sustained.
Q (By Mr. Taikeff) Before you went to Washington to
personally
serve the subpoena on Norman Charles, did you ascertain that there was
no one else available to do that for you?
MR. SIKMA: Your Honor, I would object. This is totally
irrelevant.
THE COURT: Sustained.
Q (By Mr. Taikeff) Mr. Adams, in connection with your
efforts
relating to this case, do you view it as a professional duty that you
have
as an FBI Agent?
A Yes.
Q Do you also find that you are motivated for personal
reasons because one or both of the agents were friends?
A No, I do not.
Q Was one of those agents a close personal friend of yours?
A Yes, he was.
Q And you are in no way motivated by that fact in
connection
with your work?
A No, I am not.
Q Do you have any feelings that perhaps you might have
done {355} more to assist your fellow agents on that day?
A No, not necessarily.
Q What do you mean by "not necessarily"?
A I feel I did all I could.
Q Did you at any time in the first hour that you were there
make any effort to get down into that area?
A No, I did not.
Q Once your car came to a halt, near Highway 18, during
the half hour following that event, what was the furtherest distance
you
went from that car?
A I didn't leave the car.
Q For how long?
A Oh, it was sometime after 1:30 when I crawled out of
the area just for a brief time.
Q Do you feel, sir, some sense that it is very important
that you see to it that there is a conviction in this case because
maybe
you didn't do everything that you could have done on that particular
afternoon?
"Yes" or "no".
A Yes.
MR. TAIKEFF: I have no further questions.
THE COURT: The Court will recess until 10 minutes to
11:00.
(Recess taken.)
{356}
THE COURT: Ready to have the jury brought in?
MR. TAIKEFF: Yes, sir. But I want to report some thing
to Your Honor. I believe Your Honor and the government are waiting for
an answer from Mr. Lowe as to the name of a certain person. Does Your
Honor
recall that? There was an interview with a prospective witness that has
been subpoenaed by the government. The government asked for the name of
those people.
THE COURT: Yes.
MR. TAIKEFF: There was one name that Mr. Lowe said he
wanted
to make sure he was not bound to any confidentiality. He called and
asked
me to report to Your Honor the name of that person. Madona Slow Bear.
MR. HULTMAN: Your Honor, I have one matter I would like
now to make a part of the record and we will refer to it at various
times,
a stipulation of evidence which has now been signed by all Counsel and
by the defendant and a second one page stipulation which has been
signed
by Counsel for both parties and by the defendant. At the appropriate
time,
whatever part of the stipulation should be entered into the record --
THE COURT: Are you filing that now?
MR. HULTMAN: I would file those now, Your Honor, so the
Court would be aware of it.
THE COURT: The jury may be brought in.
(Whereupon, the following proceedings were had in the {357}
courtroom
in the hearing and presence of the jury:)
MR. SIKMA: Your Honor.
THE COURT: That's right, you had completed your --
MR. TAIKEFF: Yes. I had completed, Your Honor.
THE COURT: You may proceed.
REDIRECT EXAMINATION
BY MR. SIKMA:
Q During cross-examination you referred to an answer given
in prior testimony concerning the red and white pickup. You referred to
it --
MR. TAIKEFF: Objection, Your Honor. I withdraw the
objection.
THE COURT: Very well.
Q (By Mr. Sikma) You were asked for a yes and no answer
whether you said at that time, the question being, "At 12:18 P.M. did
you
not say you saw a red pickup?" Answer: "Yes". Was it your
intention
at that time to lead the record to indicate that you believed that at
that
time you in fact saw a red pickup?
MR. TAIKEFF: Objection to the form of the question.
THE COURT: Sustained.
Q (By Mr. Sikma) Can you state what your intention was
with regard to that answer that you --
MR. TAIKEFF: Objection, Your Honor.
THE COURT: Sustained.
Q (By Mr. Sikma) On cross-examination you were asked
whether
{358} or not you gave that answer to the question which was, "At 12:18
P.M. did you not say you saw a red pickup," is that correct?
A Yes.
Q And were you not asked for a yes and no answer simply
to that question at that time?
A Yes, I was.
Q Did you state what you meant by your answer at that time?
MR. TAIKEFF: Objection. The answer speaks for itself, Your
Honor.
MR. SIKMA: Your Honor, the answer does not speak for
itself.
Counsel read one statement out --
THE COURT: I will overrule that objection. The witness
may explain his answer.
Q (By Mr. Sikma) Would you explain your answer.
A That question was asked of me in regard to an entry on
a statement prepared by another individual from our office.
Q Now can you state whether or not you believed at that
time and whether or not you stated at that time that was your
impression
as to the correctness of that time?
A Not so much the correctness of the time but the vehicle
being in there. I recall the vehicle was in there and in answer to that
question, and it was on this particular document, it was there
subsequent,
subsequent testimony reflected and we got it clarified that I was
referring
to the pickup that was in there about 1:30 P.M.
{359}
Q And is that your recollection as to the time that you
observed the red and white pickup?
A Yes, it is.
Q And what time was it that you recall that?
A 1:30 P.M.
Q Is that an approximate time?
A Yes, it is.
Q And with regard to this observation, were there any other
factors that you have been able to determine in your mind happened
prior
to the time you observed that red pickup?
MR. TAIKEFF: Objection to the form of the question.
THE COURT: Sustained.
Q (By Mr. Sikma) Can you state if there were any other
things that you observed after you arrived at the crime scene? Were
there
any other things that happened prior to that time?
MR. TAIKEFF: Objection. It goes beyond the scope of the
cross. Too indefinite.
THE COURT: Overruled.
A Yes. There were other things happened that I relate this
incident to.
Q (By Mr. Sikma) What are those things that you relate
it to?
A The visit of Joanne La Deau to the crime scene.
Q And this happened before or after Joanne visited the
crime scene?
A My recollection, it had happened after she was at the
crime {360} scene.
Q Now you say "after she was at the crime scene." Is that
after she arrived at the crime scene or after she left the crime scene?
A After she departed about 1:30 in the afternoon.
Q You were asked a question on cross-examination concerning
what you could have done on that particular day. Do you recall that
question?
A Yes, I do.
Q Now during the afternoon from the time you arrived until
5:00 P.M., where were you?
A I was near my car where it was stalled in the roadbed
out here near Highway 18.
Q Now can you tell me whether or not this was in the line
of fire?
A Yes, it was.
Q And can you tell me during the afternoon how long it
was that you received fire?
A It was from the time I arrived until, I estimated the
time to be about 4:00 P.M.
Q So from that, was approximately 12:00 o'clock until 4:00
P.M. you stayed in a position where you were in a line of fire?
A Yes. That is correct.
Q And shots were being fired at you at this time?
A Yes, they were. Intermittently all afternoon.
{361}
Q Did you have any instructions from your superiors with
regard to where you should be during the afternoon?
A Yes, I did.
Q And what were those instructions?
A They instructed me to stay with the radio and keep them
advised what was going on at the scene.
Q Were they aware of the fact that your radio was in an
approximate area which was in a line of fire?
A Yes, they were.
Q Now you also indicated the time as to what you were aware
of as to hearing shots being fired or gunshots, is that correct?
A Yes.
Q What shots or what time were you aware of the shots being
fired from your own personal knowledge?
A When I say the firing stopped at 4:00 o'clock, that was
in our general location there. There was some additional shots fired
when
the houses were secured about 4:00 P.M. and then, as I related, I
observed
the individual, heard firing as I observed the individuals fleeing from
the south end about 5:45.
Q And if there were gunshots fired at that time or after
that time, were you aware of, did you have personal knowledge of that?
A After the 6:00 o'clock time?
Q Yes.
A There could have been. I had no personal knowledge of
it.
{362}
Q And where were you at about that time?
A I was either at the vicinity of the houses or proceeding
to the wooded area. I think I left the area about 7:15 and was taken to
the hospital.
Q You indicated that while you were going back to Highway
18, I believe, you had cut your hand, is that correct?
A Yes.
Q And you heard the sound of an FBI radio?
A I heard the sound of radio transmissions; yes.
Q And did you recognize whose radio that was?
A They were both transmissions on both the FBI and the
State radio frequencies.
Q Did you listen to the content of those transmissions?
A No, I did not.
Q Between 12:00 o'clock and 4:00 P.M. did you know of the
whereabouts of Special Agents Williams and Coler?
A No, I did not.
Q Did you have any idea as to where they were throughout
the course of the afternoon?
A All I knew is they were possibly in the vicinity of the
houses but I had no knowledge as to any exact location.
Q And you couldn't see the bottom of the hill?
A No. I could not.
Q I have a further question about the terrain along the
wooded area. Can you tell me what if any terrain features there are at
{363} the edge of the wooded area, let's say to the northeast of the
wooded
area? Is there anything particular that you can say about the terrain
there?
A Referring to this area here (indicating).
Q The area all along the wooded area along the creek.
A At times the creek approaches the edge of the wooded
area and there's another drop off of 10 to 15 feet into the bottom of
the
creek.
Q Can you tell me whether or not there is a drop off at
the edge of the tree line?
A Yes. In some areas it would be. The creek approaches
the edge of the tree line, very near the edge of the tree line, so some
of the trees are right even on the incline from the creek bottom up to
the elevation. There is a plateau area here (indicating).
MR. SIKMA: I have no further questions.
RECROSS-EXAMINATION
BY MR. TAIKEFF:
Q Mr. Adams, would you resume your position at the map,
please, and I ask you to keep your attention focused on the subject
matter
which Mr. Sikma just asked you about.
Now run your finger over the edge of the wooded area so that
everyone will know specifically what point you were referring to when
you
answered the question about the drop in the vicinity of the creek.
A Well, I know for a fact, I believe it's right in this
area {364} here (indicating) the creek approaches right at the tree
line
somewhere in here (indicating). As far as through here, as I stated,
the
creek zigzags and, as I recall, in this fashion throughout the wooded
area.
Q For the benefit of the record, I will state that you
started out at the northeastern edge of the woods in the vicinity of
the
left-hand corral and traced the boundary line of the wooded area along
the boundary line on Exhibit 71 for at least eight or ten inches, is
that
a fair description?
A That would be right-hand corral?
Q You started at the left-hand corral I said.
A Oh.
Q Then you traced your finger along the edge of the wooded
area for a linear distance of approximately eight inches before you
then
designated or indicated that the creek went inside the wooded area.
Have
I made an accurate statement?
A Well, I might elaborate further that perhaps there is
a bend in here (indicating). I can't state for a fact, but I know that
somewhere in this vicinity that creek approaches the wooded area
(indicating).
Now if it travels along the wooded area, I can't state that for a fact.
Q But subject to that modification, is my statement an
accurate one of the way you moved your hand on the exhibit?
A Yes. Somewhere in this vicinity the creek does pass in
the near vicinity to the edge of the trees.
{365}
Q All right.
If you'd be kind enough to resume your seat.
I gather then that there is a change of elevation at that point.
A Yes.
Q What is the difference in elevation between the high
side and the low side?
A I would estimate it to be 10 to 15 feet.
Q And is it a vertical drop or is it on an incline?
A Well, there are places in there that -- now I can't speak
specifically -- all I know, there are places that creek bank drops off
almost vertically, then there are places you can walk down gradually.
Q All right.
So there are places where there is an incline?
A Yes.
Q And trees growing on that incline?
A Yes. That's correct.
Q And those trees are growing essentially a vertical
position?
A That's correct. Yes.
Q Now which way is higher: towards the corral or
away from the corral?
A The higher elevation would be in the vicinity of the
corral.
Q So that as a person came through the woods from the
lowest
edge of Exhibit 71, he would come upon a rise in the terrain, {366}
whereas
if a person came from where Coler's car was into the woods, he would
experience
a decline in the terrain, right or wrong?
A Well --
Q You don't understand the question, say so.
A Well, I can't answer right or wrong because I think we're
misinterpreting each other. I am talking about the 10 to 15 foot
difference
in elevation being from the ground level around there to the base of
the
creek.
Q Okay. So far we're together.
A All right.
Q My question is which way does it go? Is the creek area
higher than the nonwooded area or the nonwooded area higher than the
creek
area? Do you understand the question put to you that way?
A Let me say this: there is, some of the wooded area
is on the same elevation as the nonwooded area. Do you follow me?
Q Yes.
A The creek meanders through there. When I say the 10 to
15 foot difference in elevation, I am talking of the plane of the
nonwooded
area, some of the wooded area down to the base of the creek.
Q Let me put it to you this way: is it fair to say
that at that point in the vicinity of the two corrals the creek has an
east bank and a west bank?
{367}
A It has.
Q Which has a higher elevation: the east bank or
the west bank?
A I would say they are both in the same plane, same
elevation.
Q On both sides of the creek?
A Yes.
Q Where does that change of elevation occur?
A From the sides of the creek to the base of the creek,
the bottom, the floor of the creek.
Q Are you saying that the creek is in a crevice like a
canyon?
A It's in a creek bed. The bottom of the creek bed, that's
what I was referring to.
Q Is it possible for a person to cross the creek at that
A I assume it is. I crossed the creek in several locations
and, as I said, sometimes the water was above my waist.
Q Was that crossing done at a great distance from either
one of those two corrals?
A No, it was not.
Q Are we talking about a quarter mile or 100 feet?
{368}
I, I believe I probably crossed within, the first time, within
two hundred feet. That would be an estimate.
Q Okay. Now your car when you first arrived and then backed
up was somewhere up here near the left-hand edge, the center of the
left-hand
edge of Exhibit 71 almost at Highway 18, is that correct?
A Yes. It is.
Q What is the nature of the terrain on which that old
highway
goes: is it elevated above 18, the one that parallels the present
Highway 18?
A I would say generally that elevation would be, well,
when you're up on top of the plateau it would probably be higher than
18.
When you drop off to the left-hand side of the road where I was
parked there, I believe it's lower than the elevation of 18.
Q But along this area generally is there a rise here along
this parallel line west of 18 that's higher than 18.
A Yes. The, the plateau to the southeast of the road where
I was stopped on there which runs diagonally to the upper lefthand
corner,
that elevation to the best of my recollection is either at the same
elevation
or it might be slightly higher than 18, particularly in this location
there.
Q If you stood on the center line of Highway 18, could
you see the tan and red house?
{369}
A It depends on the location where you stood.
Q Well, let's say in this general vicinity where your car
was.
A On an extension of the intersection, the road where my
car was on Highway 18 I would say you could not but if you proceeded on
toward Pine Ridge you could.
Q You mean going up that way --
A Yes.
Q -- towards the top of the chart?
A Yes.
Q Now people who entered this wooded area in the vicinity
of the corral, --
A Yes.
Q -- how did they enter the general area? Where did they
come into the area?
A They drove into Highway 18 and parked to the north of
where my car was parked there. There's a --
Q That would be out here, somewhat off to the left?
A No. Right at the intersection of the road and as the
road leaves the -- I'll just point it out to you.
Our cars were all parked in this vicinity right here.
Q Did any of those cars take any bullets?
A They were down off the edge of the bank, sir.
The plateau breaks off right in this area and goes down at a
lower elevation.
{370}
Q So that if you went beyond that rise in the direction
of 18 you'd be shielded from the shooting, wouldn't you?
A That is, that is correct; yes.
Q And then you could proceed on the chart to the left along
18 and increase the distance between yourself and the houses where the
shooting was coming from, right?
A Yes. You could.
Q Then you could find some path or other means of entering
the area and getting down here in the woods, right, as those people
did?
A Yes.
**Q Now at 1:30 a pickup truck left the area and you
observed
that pickup truck leave the area, isn't that correct?
A Yes. Approximately 1:30.
Q And what color was that?
A A red and white.
Q Now before on redirect examination Mr. Sikma put a
question
to you concerning your testimony at the other trial last summer and you
made reference to an entry somewhere, do you recall?
A Yes.
Q What you were talking about?
A Yes. At that time I was shown a document which contained
an entry, this particular entry.
Q And?
A And I was asked questions regarding this entry.
{371}
Q And as you recall it -- withdraw.
As you recall what your understanding was at the time you were
asked the question or questions, what did you understand those
questions
to ask of you?
A As to my recollection of the vehicle I saw enter and
depart that area on the afternoon of June 26th.
Q I'm showing you Defendant's Exhibit 75 for identification
and I ask you, is that the document that you looked at in the last
trial?
A Yes. I believe it is.
Q And did that document make any reference to a red and
white van or pickup at 12:18 p.m.?
A I believe it's a red pickup.
Q And what is that document?
A It's a FD 302.
Q A 302 prepared by the FBI?
A Yes.
Q And generally speaking what subject matter does it deal
with?
A This particuIar document here?
Q Yes. Do you want to look at it again?
A No.
As I recall it's an interview of Ann Johnson.
Q And go on.
A And it reflects, I guess it reflects her observations
on the 26th of June, 1975.
{372}
Q Observations in what sense: touch, smell --
MR. SIKMA: Your Honor, I object.
This, this question has been asked and answered a number of
times.
MR. TAIKEFF: I believe the Government has opened the door
on their redirect examination.
MR. SIKMA: Your Honor, --
THE COURT: The door had not been opened as to the contents
of that, of that exhibit except --
MR. TAIKEFF: I'm looking for a general description of it.
I have not asked him, I will not ask him about content of it but the
witness
used the existence of that document to explain why he gave a certain
answer.
I believe it's appropriate for me to probe his state of mind
and his understanding at the time he gave that answer to eliminate, if
possible, the question of any confusion in his mind.
THE COURT: The point that the Court is making is that you
cannot through this witness and without the exhibit being in evidence
get
the inforrlation from the exhibit.
Your question relating to the, whether or not the document
reflected
her observations which really goes to the content of the document --
MR. TAIKEFF: No, Your Honor, I was asking for a generic
description --
{373}
THE COURT: All right.
MR. TAIKEFF: -- as he understood the documnent as he looked
at the courtroom last June or July.
Q (By Mr. Taikeff) Do you understand that question, Mr.
Adams?
A No. I'll need the question.
Q All right. Let me see if I can try it a different way.
You looked at a document. After looking at that document you
were asked this question: "And did you not give instructions at
12:18
that there was a red pickup leaving Jumping Bull Hall area going north
and you instructed people to stop this pickup?
A Yes."
Now when that event occurred, namely that you were asked that
question and you gave that answer, it was at a time after you had
looked
at the Defendant's Exhibit 75 for identification; yes or no?
A I can't answer that yes or no, Mr. Taikeff.
Q Why not?
A Because the way the question is stated.
Q It's a statement seeking chronological fact.
Did you give that answer to that question after you looked at
the document which in this case is marked Defense Exhibit 75 for
identification;
yes or no?
A To the best of my recollection; yes.
Q Now speaking in general terms only, you've told us so
far {374} that the document in question was a 302, an official FBI
report,
is that correct?
A Yes.
Q And it reflected or summarized an interview with Ann
M. Johnson, an FBI employee, is that correct?
MR. SIKMA: Same objection, Your Honor. We've been through
this about three times.
Counsel has asked questions about it. It's been asked on redirect
examination.
MR. TAIKEFF: I haven't gotten any answers yet, Your Honor.
Of course, I keep getting interrupted with objections.
MR. SIKMA: Your Honor, I object to those statements. It's
perfectly proper for the Government to make an objection to the
objectionable
question.
THE COURT: The jury will remember my preliminary
instructions,
that it's proper for both sides to make objections.
I'm not sure I understand now what the state of the record is.
MR. TAIKEFF: The state of the record is, Your Honor, that
the witness has said that he answered the question and, which I read to
him and reread to him after he looked at the document which is
Defendant's
Exhibit 75 for identification; that that document was an FBI 302 and
I'm
up to the point where I was getting to the last point of departure,
namely,
whether that was an interview with an FBI employee or a recordation of
{375} an interview with an FBI employee by the name of Ann M. Johnson.
I am probing his state of mind at the time he answered the
question
on page 238 of the transcript of the last trial.
THE COURT: Very well. That will be allowed.
Q (By Mr. Taikeff) Now did you, when you looked at that
document and before you gave that answer to that question, recognize
the
document as a report by Special Agent O'clock of an interview with an
FBI
employee by the name of Ann M. Johnson; yes or no?
A Yes.
Q And you told us that as you recall your state of mind
in June or July of last year when you were testifying, you recognized
that
that report contained her observations, right?
A Yes. Her observations.
Q What kind of observations? Don't tell us the content.
Just generally what kinds of observations?
MR. SIKMA: Your Honor, I would object to this.
It's obvious that this document rerers to hearsay evidence that
is not only one step removed but two steps removed. It is a
recollection
of another individual.
Your Honor, the effect is the same on the jury or, whether or
not he's offering the exhibit or not. It's totally improper.
MR. TAIKEFF: I am not offering the content.
{376}
The Government has made inquiry about the witness's state of
mind in an effort to rehabilitate with reference to the question and
answer
that I put to him on cross.
I am now probing his understanding about that document and they
keep interrupting me when I get to this particular question. It's been
ruled on twice already.
THE COURT: The objection, as I understand it, goes to your
question relating to the document reflecting her observations and I
will
sustain that objection again.
MR. TAIKEFF: He's already answered the question twice,
Your Honor, without objection. He said it does contain her
observations.
All I asked him is what kinds ot observations does it reflect,
not what the content of those observations were.
MR. SIKMA: Your Honor, that's my objection, the kind of
observations and the observations --
THE COURT: Sustained.
Q (By Mr. Taikeff) When you read that document, Mr. Adams,
were you then sufficiently secure in the knowledge that you had made
that
statement so that you answered yes to the question which was put to
you;
yes or no?
A No. I was not.
Q You were not?
A No.
Q You were on the road, is that correct; yes or no?
{377}
A Yes.
Q And you were uncertain about an answer and you'd said
yes without qualification; is that what you're telling us; yes or no?
A Yes.
MR. SIKMA: Your Honor, --
MR. TAIKEFF: No further questions.
MR. SIKMA: Your Honor, I did not have an opportunity to
object to that question.
I would object to the question as, first of all, being highly
improper and I would ask that it be stricken, the answer be stricken.
It
was argumentative and misleading.
THE COURT: Specifically which question are you referring
to?
MR. SIKMA: The last question, Your Honor, with regard to
the question that was asked with regard to his intent at the time the
question
was answered because I don't believe the witness understood the
question.
MR. TAIKEFF: How does Mr. Sikma know what the witness
understood,
Your Honor.
THE COURT: Well, the question's been answered. I'm going
to leave the record as it is.
MR. SIKMA: I just have one question, Mr. Adams.
MR. TAIKEFF: I object, Your Honor. There's been direct,
cross, redirect, recross. I believe that's appropriate.
{378}
MR. SIKMA: Your Honor, he has left the witnsss with a,
without an opportunity to --
THE COURT: My normal procedure is that until they get
completely
out of line, either side, I do not abide by any normal limitations on
direct
and cross, redirect and recross.
You will have an opportunity to recross if there's some question
asked.
REDIRECT EXAMINATION
BY MR. SIKMA
Q Can you explain what you meant by your last answer?
A Yes. I answered that question yes when I was under oath
a year ago because I was answering the question in regard to that
document.
There are several pages in there where we had three different
vehicles and that we were, I was referring to one, counsel was
referring
to another and I think it all finally, if you go through the entire
thing
it's going to finally come out in the end exactly which vehicle was
where
and my observation of each one of them.
Q And what was your observation as to the red pickup that
--
MR. TAIKEFF: Objection. The question has been asked and
answered ad nauseam.
THE COURT: Sustained. That's cumulative.
MR. SIKMA: I have no further questions, Your Honor.
MR. TAIKEFF: May I have the last word, Your Honor?
{379}
THE COURT: You may.
RECROSS-EXAMINATION
BY MR. TAIKEFF
Q Let me read to you the question from page 238.
MR. SIKMA: Your Honor, I would object to that as being
clearly repetitious.
THE COURT: That is also cumulative.
Q (By Mr. Taikeff) All right. Do you recall the question
you were asked?
MR. SIKMA: Your Honor, again I would make the same
objection.
MR. TAIKEFF: I just wanted to know whether the witness
recalls the content of the question.
MR. SIKMA: Your Honor, he's answered that and it was
cumulative.
THE COURT: He may answer that.
Q (By Mr. Taikeff) Do you recall the content of the
question?
A Which question now?
Q That was put to you last summer which is the subject
matter of these inquiries; yes or no?
A There were numerous questions. That's why --
Q Are you saying that you have some failure of memory in
that regard; yes or no?
A Well, I recall several questions but I want a specific
question.
MR. TAIKEFF: Then, Your Honor, am I permitted to {380}
assist the witness by reading the question to him?
THE COURT: If you are reading the question regarding the
pickup, you will not be permitted. It's my same ruling that it is
cumulative.
I ruled that the United States' question was cumulative and your
question
was cumulative.
MR. TAIKEFF: That I want to ask the witness a question
about the inquiry that was made of him and now he tells me he doesn't
remember
what question I'm talking about.
Your Honor, I have a suggestion.
Q (By Mr. Taikeff) Look at page 238, sir, and look at lines
19, et cetera, as long as you need to.
Now, sir, are you able to look at that page and think at the
same time?
A Yes.
Q Does that question inquire of you as to whether something
was in a 302 or did it ask you whether you did something?
A It refers to an entry that was in a 302.
Q It does?
A Yes. It does.
Q Read the words to me that reflect that fact in the
question,
just those words.
MR. SIKMA: Your Honor, I would object to that as
cumulative.
He's given the answer to the question and has cleared up what
was on the witness's mind. Now he wants to go through the entire line
of
questioning once again.
{381}
THE COURT: You may answer counsel's question.
A All right. Starting at Line 9 --
Q (By Mr. Taikeff) (Interrupting) Yes.
A (Continuing) Question: Let me ask you this:
You have in front of you the radio log monitored by Miss Johnson, do
you
not, I think it is "B"; and that is the same document that I looked at
-- I believe it is referring to your 75?
Answer: Yes.
And I ask you to look at the entry for 12:18 p.m., that is about
the bottom of the first page -- yes -- and over to the top of the
second
page. Do you remember you arrived approximately noon?
Answer: Yes, that is right.
Then the question: And did you give instructions at 12:18
that there was a red pickup leaving Jumping Bull Hall area going north,
and you instructed people to stop this pickup?
Yes.
Q O.k. Now as to that last question, was that question
put to you to find out what was on the paper or what you actually did
on
June 26th, 1975?
A My interpretation of the question, and I answered it,
it was on the paper.
Q You understood that question to mean, do you see it on
the paper?
A Yes.
{382}
Q So a lawyer handed you a piece of paper on which
something
was written and asked you those questions to find out from you what was
on the piece of paper, is that your understanding? "Yes" or "no".
A Yes.
MR. TAIKEFF: I have no further questions.
MR. SIKMA: That's all, your Honor.
THE COURT: You may step down. (Witness excused.)
.