ANN M. JOHNSON,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. SIKMA:
Q Tell the jury your name.
A Ann M. Johnson.
Q Where do you live?
A Rapid City, South Dakota.
Q And what is your occupation?
A Stenographer.
Q And for whom do you work?
A The FBI.
Q And was that your occupation on June 26th, 1975?
A Yes.
Q Do you remember where you were at about noon on June
26th, 1975?
A I was in the office preparing to go to go to lunch.
Q O.k. What was your job in the FBI office in Rapid City
at that time?
A I was a stenographer in which I take shorthand and {1652}
transcribe it and answer the phones and the radio.
Q In the room where you worked, how many other people
worked
that particular room?
A There were six other agents that usually sat in there,
and I and one other steno; and the senior resident agent sat in a room
off of the one big room.
MR. TAIKEFF: Your Honor, I am sorry but the voice is not
audible here.
THE COURT: I am having the same difficulty. You are
requested
to please speak up and into the microphone. Perhaps if you turn it a
little
bit and speak a little bit across it -- turn it a little more.
MR. TAIKEFF: Would it be possible, your Honor, for that
question to be re-asked and start at the beginning of that answer?
MR. SIKMA: I will go --
THE COURT: (Interrupting) Do you want the reporter to read
the question?
MR. SIKMA: Yes.
THE COURT: The reporter will read the question back.
(Question and answer were read by the reporter.)
Q (By Mr. Sikma) Who was the other steno that was in the
room with you?
A Linda Price.
Q And who was the senior resident agent that worked in
the {1653} room off of your room?
A George O'Clock.
Q Now, would you tell us what happened, if anything unusual
happened, at about noon on the 26th of June, 1975?
A We heard radio transmissions that some agents were under
fire.
Q And do you know who was transmitting those radio
transmissions?
A Ron Williams.
Q Did you recognize his voice?
A Yes.
Q Had you had occasion to listen to Ron Williams talk over
the radio on other occasions?
A Yes.
Q What, if you recall, was the nature of those
transcriptions
$A The first thing I heard was "There is something wrong
here, we are being fired on."
Q And about what time was that?
A About 11:55.
Q And what did you hear next?
A Transmissions back and forth between Ron Williams and
Gary Adams, trying to get a location on where Ron Williams was.
Q About how much time was there between the first
transmission
concerning the fact that Ron Williams indicated he was being fired on,
and the transmission that Gary Adams was responding {1654} to that
call?
A I really don't know.
Q Would you say though it was -- could you give me an
estimate
of about how much time it was?
A I would say only a matter of some seconds, maybe a minute
or two.
Q O.k. What did you hear next?
A Just mainly transmissions back and forth, and the last
thing I heard from Ron was -- I didn't really hear the words, but I
heard
like he kind of broke off and it sounded like a moan.
THE COURT: Speak up, please.
Q (By Mr. Sikma) What, if anything, were you instructed
to do at that time?
A I was told to start taking notes.
Q And were you able to hear the transcriptions or
understand
what the transcriptions were at that particular time?
MR. TAIKEFF: Your Honor, I trust Mr. Sikma meant
transmissions?
MR. SIKMA: I am sorry, I did.
A Not fully. I could hear him, yet I really didn't know
what I was supposed to be taking down, whether I was supposed to be
taking
a summary or trying to get it sort of verbatim, so I really didn't know
what I was doing.
Q (By Mr. Sikma) Did anyone come to your assistance at
that {1655} time?
A Yes.
Q Who was that?
A George O'Clock.
Q And what, if anything, did he do?
A He would tell me more or less what was said, and I would
write it down.
Q You would take notes?
A Yes.
Q And how long did this go on, about?
A Until -- well, only about 12:30, and then I was on my
own.
Q O.k. What did you do after that time?
A I took notes the rest of the day.
Q Do you recall the radio calls throughout that day, do
you recall what was being said throughout the day?
A Not real well, because it was so much, and I was on it
all day. Not specifically.
Q As a matter of procedure -- and you said the first half
hour or so George O'Clock was telling you generally what was being said
and you were taking notes. What did you do after that?
A I tried to get down as close as I could just what was
being said on the radio back and forth.
Q Did you keep track of the time?
A Yes, as close as I could. When the transmission would
{1656} come in, I would try to look at the clock and get the time as
close
as possible.
Q What did you do with the notes that you transcribed?
A Well, I transcribed the notes onto a 302.
Q And whose 302 was that?
A Well, it is a 302 of George O'Clock in part. The actual
first part of it is what he, you know, was telling me, which took notes
on; and then after that it is really all my notes on that day.
Q How long did you go on that particular day taking notes?
A Until about 9:40 that night.
Q What was Linda Price doing at this time?
A She was answering the radio, or I mean, the telephone,
I am sorry.
Q And did she at any time assist you in taking down the
radio messages?
A Yes, whenever I needed to take a break.
Q And about how many times did that take place during the
course of the day?
A Only about three, I think.
MR. SIKMA: May I have a moment, your Honor?
THE COURT: You may.
(Counsel confer.)
Q (By Mr. Sikma) Defendants have marked Defendant's Exhibit
75. I will show you this and ask you whether or not you {1657}
recognize
what Defendant's Exhibit 75 is?
A Yes.
Q And what is that?
A That's the transcription of what my notes were from that
day.
Q Now, would you look at that and tell me, if you can,
what time it was, as noted on that transmission, that you started
taking
notes on your own without the assistance of Special Agent O'Clock?
A About 12:36.
Q That was the first time that you did not have his
assistance,
is that correct?
A Yes.
Q And to go throughout this document, how long into the
evening did you take notes on these radio messages?
A Well, the last entry is 8:50.
Q I will direct your attention to Page 1 of that document,
and tell me if, after reading it, you can tell me what the
transmissions
were between 11:55 and 12:10 p.m. -- 11:55 a.m. and 12:10 p,m. I will
ask
you if you will read them first, and then tell me if you recall, after
reading them, what you heard.
A (Examining) I don't recall hearing these direct, I mean
myself.
Q Now, up until 12:26, I believe, or 12:36, rather, you
were receiving dictations from George O'Clock, is that correct?
{1658}
A Yes.
Q Do you recall any of those radio transmissions from your
independent recollection without reading them?
A Not very well, no.
(Counsel confer.)
#Q (By Mr. Sikma) What was the general nature of the radio
transmissions, what was being said between 11:55 and 12:10 p.m.?
A There was a general background of what had been
happening,
of the agents being fired at, and what was being done.
Q O.k. What happened at 12:06?
A Adams was receiving fire.
Q And what happened at 12:10, approximately 12:10 p,m.?
A An ambulance was called to go down there.
Q O.k. and what happened --
THE COURT: (Interrupting) Excuse me. Would you repeat that?
You didn't speak loud enough.
THE WITNESS: O.k. Ambulance was called to go down there.
Q (By Mr. Sikma) O.k. and what happened at about 12:18
p.m.?
A Adams was on the scene and he had been receiving fire.
Q And what else happened?
A He said that he saw a red pickup leaving the Jumping
Bull Hall area, and the Pine Ridge Police were instructed to stop this
pickup.
Q And what happened at 12:21 p.m.?
{1659}
A Adams and the BIA unit with Adams reported they both
had flat tires, and they didn't know where it came from.
Q What happened at 12:23 p.m.?
A Adams stated there was firing from both directions at
both Adams and the BIA reinforcement with him.
Q Do you know from the transmissions what time Special
Agent Hughes arrived on the scene?
A At 12:24 p.m.
Q And what happened at 12:27 p.m.?
A Adams reported there was still firing, and they were
receiving fire from Jumping Bull Hall.
Q Now, approximately how long throughout the course of
the afternoon, if you recall, did they receive fire or receive -- were
they receiving fire in that area?
A I don't recall.
MR. SIKMA: I have no further questions.
MR. TAIKEFF: May I inquire, your Honor?
THE COURT: You may.
CROSS EXAMINATION
by MR. TAIKEFF:
Q Miss Johnson, you have Defendant's Exhibit 75 for
identification
in front of you?
A Yes.
Q I am going to place before you, in addition, Defendant's
Exhibits 81 and 82, after I show them to Mr. Sikma, so he will {1660}
know
what I am talking about.
(Counsel shows document to Mr. Sikma)
{1661}
This particular time I'm going to put them facedown. Okay.
How long have you been employed by the Federal Bureau of
Investigation?
A Since '72.
Q Do you like working there?
A Oh, yes.
Q You do stenographic work amongst your other duties?
A Yes.
Q And does that involve the preparation of forms known
as 302s?
A Yes.
Q Do you have any objection to my referring to them
sometime
as reports just for a short hand?
A That's fine.
Q Now as a general rule, the 302s or the reports are
dictated
to you by the agent whose 302 it is?
A Right.
Q And then I assume that you're one of the people in the
office who types the reports and then gives the reports back to the
agent
who dictated it?
A Yes.
Q Now there were certain events which occurred in your
office on June 26th that you've told us about in part, is that right?
{1662}
A Yes.
Q Now 302 as a rule contain a lot of precise detail, don't
they?
A Yes.
Q And as a general rule they're meant to contain as much
detail of events as are deemed important by the person writing the
report,
isn't that correct?
MR. SIKMA: Your Honor, I'd object to this as calling for
a conclusion on the part of the witness.
THE COURT: The objection is sustained on the grounds of
lack of foundation.
Q (By Mr. Taikeff) Do you know from from your own
experience
that when an incident, perhaps one that only lasted a few moments or
perhaps
a fact which is not very complex is recorded in a 302, it is done with
a great deal of detail and a great deal of language to make sure that
every
conceivable aspect is put down on paper, isn't that a fair description
of how thoroughly and accurately 302 are prepared?
MR. SIKMA: Your Honor, I'd object. This calls for
conclusion
on the part of the witness. Not within her knowledge.
THE COURT: There is no showing that this witness has any
expertise other than a stenographer who's typed 302s dictated by other
people. That's the reason I sustained the first objection. {1663}
Q (By Mr. Taikeff) There's a 302 in existence that was
typed on June 28, 1975. It appears to be an interview of you by an
agent
named Leon Canton. Are you familiar with the existence of that 302?
A Yes.
Q Were you interviewed by Agent Canton?
A Yes.
Q Did he dictate the 302 or the content of the 302 after
he interviewed you?
A Yes.
Q To whom did he dictate it?
A Myself.
Q And who typed it?
A Myself.
Q Now Agent Canton works out of what office?
A He's in the Minneapolis division.
Q And have you ever read that 302?
A Yes.
Q See if one of the two documents I gave you, specifically
No. 81, is the document I have been questioning you about.
A Yes, it is.
Q Now look at that first paragraph. It tells your
occupation,
doesn't it?
A Yes.
Q And where you're assigned?
{1664}
A Yes.
Q And what room you work in?
A Yes.
Q And the city and state and building in which you work?
A Uh-huh.
Q Based on your experience in working with and preparing,
or rather typing 302s, is that kind of detail unusual?
A No.
Q In fact, a rather prominent characteristic of 302s is
that they contain a great deal of precise information and detail about
every event that they talk about.
MR. SIKMA: Objection, Your Honor, the foundation has still
not been established and this witness does not know what --
MR. TAIKEFF: Your Honor, please. I do not think Counsel
should signal the witness what Counsel thinks the witness should say.
MR. SIKMA: Your Honor, I think that it's a legal matter
of whether or not this witness is competent to answer that question. As
a matter of law, in fact, she is not.
THE COURT: Sustained.
Q (By Mr. Taikeff) How many 302s have you typed since you
started working for the FBI?
A There is no way to state.
Q Yes, there is. How many do you type a day?
{1665}
A It varies.
Q Average day.
A I suppose it could be at least ten, twelve.
Q Do you read them after you type them?
A No.
Q Do you understand what's being said to you when the
dictation
is being given?
A Usually.
Q When an agent sits down with you, assuming you sit, and
dictates a 302, do you have any sense of what he told you when you get
finished taking that dictation?
A Most of the time.
Q As a general rule, when an agent dictates a 302, after
the dictation has been completed but before you type, do you know in
general
terms what it was he just said to you in he course of the dictation?
A I don't think so.
Q You mean you have no memory of what he said to you?
A Not well enough that I could state in general terms what
ne whole thing was about.
Q You mean you couldn't give a general idea of what it
was just reported to you via his dictation?
A I could probably pick out a few of the more prominent
things that might have hit me, that I might have especially noticed
while
I was taking his dictation, but as far as the {1666} whole thing was
about
--
Q I didn't ask you what the whole thing was about.
If, for instance, an agent described to you the fact and detail
of having followed somebody during the afternoon you have had that
experience,
haven't you?
A Yes.
Q You would as a general rule know when you got finished
taking that dictation that the agent had followed somebody, isn't that
correct?
A Yes.
Q And you might remember some of the principle details,
isn't that correct?
MR. SIKMA: Your Honor, I would object to this line of
questioning
as irrelevant and, further, I request I be able to ask one or two
questions
in voir dire for the purpose of making an objection to this line of
questioning.
MR. TAIKEFF: I'm trying to lay the foundation which Your
Honor requires.
THE COURT: Would Counsel approach the bench.
(Whereupon, the following proceedings were at the bench:)
THE COURT: I'm not sure that anyone can lay a foundation
with this witness unless you can show that she has had some training
relating
to what is to go into 302s, what specific items should be recorded,
what
should not. In other words, {1667} exercising judgment. I don't think a
stenographer simply reciting what somebody has dictated to her is
qualified.
MR. TAIKEEFF: I can approach it in an entirely different
way, Your Honor.
In response to this specific thing, Your Honor, just said, I
am not trying to establish through this witness whether the 302s are
done
in conformity with the requirements of the FBI. I'm only seeking to
establish
a fact through her which is based on her own experience that anyone
familiar
with the English language would have an impression about after working
on 302s for years. However, I can approach it in an entirely different
way that probably will not be objectionable.
THE COURT: But what I am, the reason I'm sustained the
objection is because of the fact that one agent may have recorded a
fact
she may not know. She may know that he did record a fact but she may
not
know why he selected that particular fact.
MR. TAIKEFF: I understand that. My point, Your Honor, is
that I think that any intelligent person knows the difference between a
narrative text that by its nature has a mired of detail, peripheral
details,
and one that narrates very specific major points. That's a facility
every
person who is literate and has a functioning mind is capable of. It is
only Mr. Sikma's bold assertion that she is not capable {1668} or
competent
to answer the question. Any literate adult could answer that question.
Giving a sample of writing, "Is that in your opinion something which is
chalked full of detail?" And the Federal Rules of Evidence permit a lay
witness to express such an opinion. That's the only thing I'm trying to
get out of this witness and Mr. Sikma doesn't want me to get it in.
THE COURT: The impression I get is you're attempting to
establish through this witness the significance or lack of significance
of something that is recorded and I don't think that this witness has
any
--
MR. TAIKEFF: No.
THE COURT: -- expertise in this area.
MR. TAIKEFF: No. It is the absence of something I'm leading
up to. But first --
THE COURT: That's exactly the reason that I am sustaining
it, because that is a judgment factor to be exercised by the trained
investigator
who makes the determination. I don't think this witness, whether
something
was left out or not or the significance of something being left out or
not is anything is witness could testify to.
MR. TAIKEFF: All right. I would like to ask some other
questions along different lines.
THE COURT: You may do that.
(Whereupon, the following proceedings were had in the {1669}
courtroom in the hearing and presence of the jury:)
Q (By Mr. Taikeff) How did Agent Canton conduct the
interview
of you on June 28th? What happened?
A Just asking questions on what I heard and what I was
doing.
Q Did he ask you whether you worked in room 260?
A No.
Q It's in that 302, isn't it?
A He asked me if that's where I was at the time because
there is, was another room that I could have been in.
Q Did you tell him that your place of employment is room
260?
A No.
Q You knew this form was an interview form?
A Yes.
Q And you're the one who took dictation and typed it,
right?
A Yes.
Q And it's your understanding, is it not, that a form is
supposed to contain what the person being interviewed has said, right?
MR. SIKMA: Your Honor, I would object to this. Outside
of the knowledge of this witness. I would make a competency objection.
Q (By Mr. Taikeff) Didn't you just say yes to my question?
THE COURT: I am going to overrule that objection.
{1670}
Q (By Mr. Taikeff) I'll withdraw the last question and
ask you whether it's your understanding that an interview report is
supposed
to report what the person being interviewed has said?
A Yes.
Q No more, right? A person taking the interview is not
supposed to make up things, isn't correct.
MR. SIKMA: Your Honor, I would object to this.
THE COURT: I think that we're getting to the area we
discussed
at the bench. That objection is sustained.
{1671}
Q Did you tell Agent Canton all of the things which you
considered important concerning your activities on June 26, 1975 when
he
interviewed you on June 28th? Yes or no.
MR. SIKMA: Your Honor, I'd object to that as irrelevant.
THE COURT: Overruled.
Q (By Mr. Taikeff) Do you want the question again?
A No. I just wasn't sure I was supposed to answer.
Q Yes. If the Judge says overruled to an objection you
may answer.
A Okay.
Q Are you nervous?
Q Yes.
THE COURT: The reporter will read the question to the
witness.
(Whereupon, question read back: "Question: Did you
tell Agent Canton all of the things which you considered important
concerning
your activities on June 26, 1975 when he interviewed you on June 28th?
Yes or no.")
A Yes.
Q (By Mr. Taikeff) Now, did you tell Agent Canton that
at or about 11:50 or 11:55 A.M. you had been taking dictation in a
different
room other than Room 260, and that when you complete doing that work
you
returned to Room 260 at approximately 11:50 A.M.?
A Yes.
{1672}
Q To what question did you give him that information?
A He asked me what I had been doing, and that's when I
said had been taking dictation and was preparing to go to lunch.
And we prepared to go to that room to go to lunch because that's
where our purses and everything were.
Q Now, there's some sort of a speaker on the wall, or on
a table in Room 260?
A The radio, it's on the table next to my desk.
Q And is it fair to say that as a general rule what comes
over that radio could be heard by anyone with normal hearing the room?
A Yes.
Q And was the radio functioning as well as usual on that
particular day?
A Yes.
Q Now, take a look at Defendant's Exhibit 75 for
identification.
That's also a 302, isn't it?
A Yes.
Q It's a long one, it's thirty-six pages long; is that
correct?
A Yes.
Q How do you know that something happened around 12:36
P.M. June 26, 1975 that changed what you were doing, or what was
happening
in connection with your work?
A I'm not sure I know what you mean.
{1673}
Q Well, maybe I've stated the wrong time and I will be
happy to be corrected by Mr. Sikma if I did.
But I thought you said on your direct examination that something
changed for you that day at or about 12:36?
A Well, I was taking the notes on my own from then on.
Q How do you remember that?
A Just by more or less locking at the notes I can recall
from hearing those things personally.
Q When you were looking at what notes?
A These here (indicating).
Q Let's be careful about the use of the word "notes". You
have Defendant's Exhibit 75 for identification in front of you?
A Right.
Q That's a typewritten 302?
A Right.
Q When you took notes in the office you took them with
a pen or pencil and wrote them on a different piece of paper; is that
correct?
A Yes.
Q So when we talk about notes, let's be referring to the
notes you took with your hand.
A All right.
Q Okay. Now, I ask you how is it that you are now able
to remember almost two years later that it was at 12:36 P.M. that the
circumstances
under which you were working changed on {1674} June 26, 1975?
A It's by looking at this. That's the first thing I recall
personally hearing.
Q Ms. Johnson, in your direct examination didn't Mr. Sikma
ask you a question about the first transmission that came in from Ron
Williams?
A Yes. But that was on, that was not taken down in notes
at because at that time I was not taking notes.
Q Ms. Johnson, please try to answer my question as I ask
it.
I asked you whether on direct examination you were asked to tell
us about the first transmission that came in that caught your
attention;
is that correct?
A Yes.
Q And you told us the content of that transmission, did
you not?
A Yes.
Q From your memory here in this courtroom?
A Yes.
Q So a few moments ago you said that the first transmission
you took down on your own was at 12:36. You don't mean to say that that
was the first transmission that you heard or have any memory of, did
you
mean to say?
A That's the first transmission on this 302 here.
Q Forget Defense Exhibit 75 for the moment. I'm talking
to {1675} you about facts, historical facts which have nothing to do at
the moment with what's on that piece of paper.
Did you hear the initial transmission?
A Yes.
Q Or what you believed to be the initial transmission from
Williams?
A Yes.
Q And did you hear additional transmissions?
A Yes.
Q And do you have some recollection of those transmissions?
A Some.
Q I'm not asking you whether you know them exactly
verbatim,
you understand that?
A Yes.
Q Nor am I asking you them today as well as you did on
June 28th, but you did hear transmissions prior to 12:36, did you not?
A Yes.
Q And they were in the English language?
A Yes.
Q And you have some recollection of at least some of them,
don't you?
A Yes.
Q When you were interviewed -- do you have Defendant's
Exhibit 81 in front of you?
{1676}
A Yes.
Q Is it face up?
A Yes.
Q Please turn it over.
When you were interviewed on June 28th by Agent Canton did he
ask you questions about any portion of the transmissions which you then
on June 28th remembered?
A Yes.
Q And did you tell him what you then remembered?
A Yes.
Q And did you either quote or paraphrase, depending on
how accurate your memory was, some of those transmissions?
A Yes.
Q Now, did he make specific reference to certain
transmission
and ask you whether you have heard those, or did he say to you, "Tell
us,
tell me what you heard," and you just told him what you heard? Which
way
did it go, if it went either of those two ways?
A He asked me what I had heard.
Q And then on June 28th you told him, based on what was
then your best recollection, what you remembered, right?
A Yes.
Q And you told him of a number of transmissions which you
heard before 12:26 -- 12:36 in that interview; isn't that correct?
{1677}
A Yes.
Q Did you use any notes in the course of your interview?
A No.
Q What did you do with your notes made during the
transmissions
as they were actually occurring?
A They were destroyed.
Q I beg your pardon?
A They were destroyed.
Q Who destroyed them?
A I did a few months later.
Q Did Agent Canton ask you the names of the people who
were resent in Room 260?
A Yes.
Q And did he ask you what were you doing while the
transmissions
were coming in?
A I don't recall.
Q Well, I assume that he asked you whether you were
present,
right?
A Yes.
Q And I assume that he asked you whether you heard the
transmissions?
A Yes.
Q And I assume he asked you for the content of some of
the transmissions, right?
A Yes.
{1678}
Q Didn't he ask you what your official duties were in
connection
with the transmissions?
A I don't recall if he asked that at all.
Q Take a look at the opening paragraph, first paragraph
on the first page of Defendant's Exhibit 75 for identification. Read it
to yourself, it's not in evidence.
That's part of the 302, is it not?
A Yes.
Q Are the statements in that paragraph true or false?
A True.
Q Then is it not a fact that the radio transmissions were
monitored by stenographer, Ann M. Johnson, on June 26, 1975, to the
best
of her ability and are not intended as verbatim; isn't that factually
true?
A Yes.
Q You never told Agent Canton that you got any help from
anyone from 11:55 to 12:36, did you?
A No.
Q Why not?
A He didn't ask.
Q Did you think it was important?
A I didn't really think so. To me it was part of the
dictation.
Q What do you mean "it was part of the dictation"?
A Well, part of my taking down the notes.
{1679}
Q Let's go back to 12:36 P.M., not the entry there, your
memory. Couldn't it have been at 12:10 P.M. that Agent O'Clock stopped
helping you instead of 12:36?
A I don't believe so.
Q Why not?
A It's just to the best of my recollection. I don't, you
know.
Q Are you saying that you have a specific recollection
that goes back to the afternoon of June 26th that at 12:36 he stopped
helping
you?
A No. I'm saying that by having looking at these, this
302.
Q Yes. That's No. 75 for identification?
A Right.
Q I have to keep saying those numbers so the record is
complete.
Go ahead.
A Okay. That by looking at this I usually can recognize
something that you occurred yourself, especially when you read it. And
by looking at this, the first thing I can recall hearing myself is the
12:36 entry.
Q When you use the expression "hearing myself," are you
telling us that until 12:26 you yourself heard nothing coming Dyer the
speaker, but you only got it from Agent O'Clock? Or are you saying that
you heard it, he heard it and he was helping you in your note taking?
{1680}
A That we both heard it and he was helping me in my note
taking.
Q As far as you know did he ask you while he was helping
you to write anything down which was inconsistent with what your ear
had
heard?
A No. Sometimes I didn't catch the whole thing, though,
and he would fill it in for me.
Q Can you tell with respect to the 12:18 P.M. entry whether
you heard that one yourself?
A I don't recall it at all.
Q Does that mean you don't recall whether you heard it,
or you don't recall anything about it at all?
A I just don't recall it.
Q Now, when Agent O'Clock was working with you was he
working
in his official capacity?
A Yes.
MR. TAIKEFF: Excuse me one moment, Your Honor.
{1681}
(Counsel confer.)
MR. TAIKEFF: All right, your Honor, battle by stipulation.
Instead of offering the entire document, we offer the first two
pages of Defendant's Exhibit 75 for identification.
MR. SIKMA: We have no objection to that, your Honor.
MR. TAIKEFF: I have no further questions of this witness.
THE COURT: Just a moment. I want to be sure I understand
the stipulation. You are offering it in evidence, the first two pages
of
75?
MR. TAIKEFF: That's correct.
THE COURT: There is no objection?
MR. SIKMA: No objection.
THE COURT: Very well. The first two pages of 75 are
received
in evidence.
(The first two pages of Exhibit 75 are received in evidence.)
MR. LOWE: Counsel, wait just a moment.
MR. SIKMA: I have no further questions of the witness,
your Honor.
MR. LOWE: Just a moment.
MR. TAIKEFF: May we approach, your Honor?
THE COURT: You may.
{1682}
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF: Your Honor, that leaves the rest of the
document
without a proper foundation. I would assume that's the Government's
position?
MR. SIKMA: Yes, your Honor.
MR. TAIKEFF: Now, there remains one witness who could
complete
the foundation, and that is Agent O'Clock. We have two agents coming on
on Monday, Agent Waring and Agent Hughes; and I suspect that this
document
may be necessary in the course of cross-examining them, and I really
don't
know why the Government is resisting the offer of the document, but it
was my understanding that some reasonable opportunity would be afforded
the defense to lay the foundation so that your Honor could make a final
ruling on this entire document; and it was suggested by Mr. Hultman
when
that was being discussed at the side bar that we do it in front of the
jury, and they produced this witness.
However, I think the record will show -- and I am basing this
upon, not a memory, but a past recollection recorded, that Mr. Sikma
said
in open court during the argument on this subject -- we had a rather
lengthy
argument -- that Agent O'Clock was not present during the first half
hour
and the reason I believe that that was {1683} his statement -- I will
have
to search the record to find it -- is because on the second page of the
302 it specifically said that he was present, and I made a little
footnote
for a potential cross examination question to see whether there would
be
a contradiction between the testimony to be given and what it said
there,
and Mr. Sikma's remark.
Now, maybe he misspoke when he said that, but now we are dealing
with the exact opposite. We not only have him present, but he is
present
and performing an extra function. It seems to me it would be
appropriate
to request at this time that Agent O'Clock be made available Monday
morning
so that we can finally explore the foundation of this document because
we always seem to be frustrated by some missing link; and then if
appropriate,
get the entire document into evidence and so we can use it in
cross-examining
here and use it --
MR. LOWE: (Interrupting) May I make an inquiry?
MR. SIKMA: Just a moment. Your Honor --
MR. CROOKS: (Interrupting) Would you mind letting us
finish?
MR. SIKMA: (Continuing) -- I am going to object to this
for the reason that they went into it on the grounds back there that
they
were concerned about the first two pages of this; and I had a
misunderstanding
with regard to the initial part of that, that the initial part of this
-- {1684} I thought that this was a summary, was a summary in fact of
Special
Agent O'Clock, the first part; and I thought that this would solve this
problem by going along with this and saving some time; but if counsel
is
going to attempt to put this entire document in, I think it clutters up
the record. I am going to resist it, and I am going to resist it very
strenuously
I am going to resist putting Agent O'Clock on out of order because it
is
totally irrelevant. It has no bearing on the facts of the case. As far
as this case is concerned, it is totally immaterial, and for this
reason
we are going to resist it.
MR. LOWE: May I just make an inquiry of Mr. Sikma? It may
save us a lot of time, Judge.
On a lot of Government exhibits you asked us to stipulate
foundation
without waiving arguments about relevancy. It seems to me that what you
are talking about here is relevancy. I doubt that you would challenge
the
foundation of the accuracy of an agent's 302.
Are you willing to stipulate foundation in order to present the
question of law to the Judge as to whether it is relevant or not and
avoid
a lot of time delay in having to call Agent O'Clock in? It seems to me
that really would save us a lot of time and trouble here.
MR. SIKMA: I would have to consider that later. I don't
think that foundation could be established through {1685} Agent O'Clock
or any other witness, the type of foundation that would make this
document
admissible.
If the Defendant insists on calling Special Agent O'Clock who
has retired subsequently in their own case, there is nothing we can do
about it, but we are not going to go any further on this issue with
regard
to this unless we are ordered to do so by an order of the Court.
MR. TAIKEFF: I think, your Honor, unless your Honor is
going to rule that this witness is not competent to give the testimony
she gave, that the foundation is really already in. She says he was
listening,
she was listening, he was telling her what to write down, June the 1st,
41 minutes approximately. She was an FBI employee. He was a Special
Agent.
Whether he made a mistake goes to the weight, not to the admissibility.
It was put down on a 302 which is an official FBI report, and it stands
for what it says it is. The jury should know.
MR. SIKMA: Your Honor, this first 40 minutes, or whatever,
is already in evidence, and we can argue about that.
MR. TAIKEFF: That's the point. The foundation is already
here on the record.
MR. SIKMA: We have waived it to this limit, and I think
the rest of it the Court has ruled on; and I think that, unless the
Court
changes its ruling, that we are {1686} going to retain our earlier
position.
MR. TAIKEFF: It is the only document that purports to
relate
what was transmitted that day. There are no original notes left. It has
perhaps not the fullest exploration of what weight to give to the
document
because Agent O'Clock is not here to testify; but if the Government
feels
that the document should be given less weight than it would merit on
its
face, the burden would be upon them to introduce evidence to show why
the
jury should not accept this document for what it says.
It puzzles me that the Government tries to keep out a document
which is apparently prepared by the FBI in a meticulous and detailed
fashion,
which says it doesn't purport to quote but rather to give a summary of
what was going one. That's the only piece of evidence of what was
happening
over that radio in existence in the world.
THE COURT: Well, I am still going to reserve ruling. I
am going to review this colloquy and think about it over the weekend.
MR. TAIKEFF: Thank you, your Honor.
MR. LOWE: May I raise one question? I presume Miss Johnson
wants to go home?
MR. SIKMA Yes, and so does Mrs. Price because she has a small
child at home.
MR. TAIKEFF: We can agree --
{1687}
MR. LOWE: (Interrupting) I have a couple of questions.
I don't care if you want to excuse the jury and do it out of the
presence
of the jury and have something like that rather than to have to call
her
back.
MR. SIKMA: What do you want to know?
MR. LOWE: I want to have it on the record that these times
were times -- let's put it this way -- that she gave to Agent O'Clock
times
which she herself observed were coincident with the items she wrote
down
here; and then either by stipulation with you or by calling Agent
O'Clock,
we would want to have Agent O'Clock say that she accurately recorded
the
times she gave to him, similarly to lay the foundation that these times
and these transmissions are accurate.
MR. TAIKEFF: Times are accurate.
MR. LOWE: Put it in the record, that's all.
MR. SIKMA: I think that the defense misunderstands what
the witness has testified to. The witness testified that during the
first
--
MR TAIKEFF: 41 minutes.
MR. SIKMA: (Continuing) -- 41 minutes, Special Agent
O'Clock
was there. She is making the estimate of the time in this period of
time.
MR. LOWE: I understand that, during the first 41 minutes.
{1688}
MR. SIKMA: He is making a statement of what was said.
MR. LOWE: I assume that we would have her put this on the
record that after 12:36 -- I am assuming he interviewed her with the
assistance
of reading her notes -- but they went down the notes and he used that
to
prepare the 302; but that the notes had the time, 12:41, 2:55 reading
on
the notes.
MR. SIKMA: We will stipulate to that, that's generally
what she did, She made the estimate.
MR. LOWE: Agent O'Clock would say that he accurately broke
down whatever times it was she gave him. That's all I am talking about,
getting it in the record.
MR. SIKMA: I think she actually typed down the times when
she typed the notes. She typed it.
MR. TAIKEFF: She read a time off the clock in the office.
You would be prepared to stipulate that's a fact?
MR. SIKMA: We would.
MR. LOWE: Probably stipulate also to the best -- I think
it says here to the best of her ability what she wrote down, you know,
at a given time here, with the names and everything, was as accurate as
she could write it down as she was listening to it. Agent O'Clock would
say that this is an accurate depiction of what she told him, basically
the same.
{1689}
MR. SIKMA: I think we would say that.
MR. LOWE: That would be good.
(Whereupon, the following proceedings were had in the courtroom
in the presence and hearing of the jury:)
THE COURT: It is five minutes almost past the time that
I usually promised you that you can leave the courtroom.
The Court is in recess until 9:00 o'clock, Monday morning; and
would ask the jury to remember that you must continue to keep an open
mind
and not discuss the case.
MR. SIKMA: Your Honor, I beg the Court's pardon. This
witness
is excused, I take it?
MR. TAIKEFF: Yes, your Honor.
THE COURT: We almost left you in the witness chair. You
are excused.
(Witness excused)