Testimony of Evan Lodge in the Leonard Peltier Trial
(April 5-6, 1977)

MR. SIKMA:  Plaintiff calls Evan Hodge.
 EVAN HODGE,
being first duly sworn, testified as follows:

 DIRECT EXAMINATION by MR. SIKMA:
Q  Please tell the jury your name.
A  Evan Hodge.
Q  And what is your occupation?
A  I am a Special Agent with The Federal Bureau of Investigation, and I am assigned to the FBI laboratory in Washington, D.C.
Q  And do you have any special training?
A  I am assigned to the Firearms and Tool Marks Identification Unit of the FBI Laboratory.
Q  And what do you do in that position?
A  As a specialist assigned to the Firearms and Tool Mark Identification Unit, I examine principally bullets and cartridge cases recovered at scenes of shootings, and compare them with weapons which are sent to me by various law enforcement jurisdictions.
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Q  Now, Mr. Hodge, have you had any special training to prepare you for this type of identification?
A  Yes, sir.
Q  And would you tell the Court and the jury what that is?
A  In preparing for the assignment that I am now in, I studied for approximately one year under the then 12 firearms identification specialists in the laboratory. During this year I read all the available literature in the field of firearms identification, I examined literally hundreds of weapons, thousands of bullets and cartridge cases. I conducted other exams relating to firearms identification, and I toured several of the New England weapons manufacturing facilities.
Q  Have you ever testified as an expert before?
A  Yes, sir.
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Q  Can you tell the jury what a firearms identification is?
A  Most simply put firearms identification is the ability to determine if a particular bullet or a cartridge case has been fired by a weapon to the exclusion of all other weapons in the world.
Q  Can you tell the jury how that is possible?
A  In the case of a bullet comparison, when the weapon is manufactured the inside of the barrel is cut with grooves which are given a twist so that when the bullet enters the barrel of a weapon it is forced, its outside surface is forced into these grooves. And this will give the bullet a spin as it's going down the barrel of the gun and provide it with stability like a top.
Now, as the bullet goes down the barrel of the weapon its outside surface is in direct physical contact with the inside surface of the barrel. So that if the bullet is recovered undamaged it will have markings on it from the inside of the barrel. In many firearms these markings will be consistent from shot to shot and it has been found over the years that they are unique in insufficient quantity to the weapon itself.
These markings will change from time to time throughout the firing of the weapon and through other actions that can cause changes inside the barrel of the gun, such as cleaning the weapon or if the weapon becomes rusted. In the case of {3178} cartridge cases, when the gun is fired, the cartridge case comes in violent contact with the mechanism of the gun. This mechanism, which is known as the breech, is the part that that keeps the cartridge cases from hitting the shooter. It's contained inside the weapon. The breech will have manufacturing marks from the machining and finishing process.
Many times these marks will be transferred to the soft metal of the cartridge case itself so that by comparison with a test fired cartridge case and a cartridge case recovered from some locality it can be determined if the matching marks, manufacturing marks are the same and if in fact they were fired from the same gun.
Q  I will show you what is in evidence as Government Exhibit 29A and I would ask you to point out to the jury if you would where these various places are, the breech and so forth.
A  Well, the breech of the weapon is on the face of this bolt which works back and forth inside the gun itself. That is the part of the weapon which comes in direct contact with the part of the cartridge case that we call the head, and that part which contains the primer.
Also, another identifying aspect is the firing pin itself. And the surface of that may become pitted or have grinding marks on it, and these also can be compared by test firing the weapon.
Another portion of the firearm which is used in firearms {3179} identification work is called the extractor, and that is a little hook which is on the face of the bolt and it literally grabs the cartridge case to aid in removing it from the weapon. So if it grasps the cartridge case hard enough it will leave a little dig mark in the cartridge case and this can be used in a comparison.
Q  I will show you what is marked as Government Exhibit 29-B. Can you perhaps take one of these objects out of Government Exhibit 29-B and show the jury in relation to the firearm how they fit and how you make your comparison.
A  The portion of the cartridge case which is flat, the circular is the head. It contains the primer which is a metallic insert and contains a small charge of explosive, which when hit by the firing pin causes a flame to start the gun powder burning. When the gun powder burns it pushes the bullet out of the barrel, and in like manner the cartridge case wants to go backwards.
It is from this backward motion that the breech face marks on the bolt of the gun are transferred to the soft metal of the primer. Where the primer hit the, was struck by the firing pin, there is a small indentation. And around the grooved rim at the head is where the little hook will grab the cartridge case to leave its marks if it grabs it sufficiently hard, which we call an extractor mark, and can be associated with a particular weapon by just comparing the mark left on various cartridge cases.
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Q  Does a cartridge casing, or a bullet always leave a mark that can be compared with a particular rifle?
A  No, it does not.
Q  So there are some instances where a rifle has fired a particular bullet or a cartridge casing has been extracted that you cannot compare with the particular rifle in question; is that correct?
A  That's correct. Some guns will not have a rough enough surface in these areas to leave identifiable marks.
There are times when the identifiable marks may be removed, either in the case of a bullet because of mutilation or in the case of a cartridge case if it's been out in the elements for a long time, and it gets very badly oxidized, the marks may be obscured.
Q  Okay. I would ask you to examine Government Exhibit 29-A, which is a rifle, and ask you whether or not you in fact had an opportunity to examine that particular rifle?
A  Yes, sir. My initials are on the identifying tag. Also they are scratched inside the trigger guard.
Q  Did you have an opportunity to examine the cartridge casings in Government Exhibit 29-B?
A  Yes, sir. They all bear my initials.
Q  Would you tell, in relation to your investigation in this case, would you tell the jury how the, in what ways the evidence came to you and what means you used to process the evidence which you received in this particular case.
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A  Yes, sir Government's Exhibit 29 I received from our resident agency in Pierre, North Dakota; and Government's Exhibit 29-B were personally delivered to me by Special Agent Cortlandt Cunningham in July of 1975.
Q  Now, would these cartridge casings for example have any marks on them when you received them?
A  Yes, sir.
Q  And what kind of marks would they have when you received them?
A  Well, the cartridge cases in Exhibit 29-B had marks from the breech of the weapon in which they were fired.
Q  I'm speaking about identifiable marks that you placed on there, or someone placed on there.
A  The slips of paper as I recall were with these items, and I have marked them with my initials. They all, three slips of paper all bear my initials.
Q  Okay. And what would you do with them when you received them from Mr. Cunningham for example?
A  I made a list of the items that I received among which Government Exhibit 29-B was, well, five items; and inventoried the items that I received and then made a comparison with any weapons that I received of like caliber.
Q  Did you give them a number or something so you could keep them separated from other items?
A  Yes, sir I marked the numbers on these items Q-91, 92, 208 {3182} 215 and 216 along with my initials. And these items are referred by those numbers in subsequent laboratory reports.
Q  Now, on the items that you compared with Government Exhibit 29-A, the M-1 rifle, in that particular case did you make any charts that compare or relate to cartridge casings which you found were fired in Government Exhibit 29-A?
A  Yes, sir. I had a chart prepared of the Government's Exhibit 29-A and other items which I compared against Government Exhibit 29-A.
Q  What other items did you compare against 29-A which you included in that chart?
A  I compared items listed in laboratory reports as Q-834, 835, 836, 837, 839 which were sent to me from Rapid City.
I compared items listed as 841, Q-842, Q-843 which were sent to me from Rapid City.
I compared items listed as Q-38, Q-35-B, Q-71, Q-75, Q-9, Q-11, Q-13, Q-14, Q-17, Q-21, Q-22, Q-23, Q-24, Q-27, Q-28, Q-29 and those are the items which are currently shown on the chart that I had prepared.
Q  I will show you what is marked for identification as Government's Exhibit 29-1, Can you tell me whether or not you recognize Government Exhibit 29-1?
A  Yes, sir.
Q  And what is Government Exhibit 29-1?
A  That is the chart of the comparisons with 29-A that I had {3183} prepared.
MR. SIKMA:  Your Honor, I'd offer into evidence Government Exhibit 29-1.
MR. LOWE:  No objection, subject to the record, Your Honor.
THE COURT:  29-1 is received.
Q  (By Mr. Sikma) Okay. I will put up Government Exhibit 29-1. Would you explain, using this chart, explain to the jury what tests you ran on Government Exhibit 29-A and the various items which are marked 29-B, 29-E and also 29-E in another group. Would you explain that to the jury.
A  Yes,sir. On receiving Government's Exhibit 29-A I examined it to make sure, first of all, that it was an operable weapon that was safe to fire.
I then selected ammunition from our storage room of 30-06 caliber and test fired Government's Exhibit 29-A into a large water tank so that I could recover both bullets and cartridge cases from the gun.
Upon completing that I then selected all of the 30-06 caliber cartridge cases and the 30 caliber bullets in the submission of items which I had received from Rapid City in connection with this case. I then made a microscopic comparison of the cartridge cases which I had fired in 29-A with the cartridge cases that I had received from Rapid City.
To do this I used a comparison microscope which is very {3184} simply two microscopes bridged together with a common eye piece so that you can view two objects simultaneously and make a side by side comparison of these objects. And the purpose of this comparison was to determine if the microscopic markings on the cartridge cases that I test fired in Government's Exhibit 29-A were the same as those on the cartridge cases, any of the cartridge cases which I had received from Rapid City.
Q  I would direct your attention to Government Exhibit 29-E and ask you whether these are the cartridge casings which you compared with 29-A?
MR. LOWE:  Your Honor, we'll stipulate that 29-E matches to the weapon, 29-A, if Mr. Sikma would just want to recite in summary fashion whatever it is about it is he wants to recite, rather than require a detailed explanation of the comparison. Because there's no contest that these were fired from weapon 29-A.
MR. SIKMA:  Your Honor, in light of what defense counsel has indicated I would state for the record that Government Exhibit 29-B was found pursuant to earlier testimony on the east side of the green house as it's located on Government Exhibit 71. And Government Exhibit 29-E is in two parts, one found approximately seventy-five yards south of the green house and the other part found with three items found near the green house.
I would also state that with regard to Government {3185} Exhibit 29-G which I am showing to the --
MR. LOWE:  We have not entered any stipulation as to 29-G or 29-F, and I assume you understand that?
MR. SIKMA:  I understand that.
MR. LOWE:  We'll stipulate as to 29-B and also as to 29-E. I don't know if you've gone into 29-B or not yet, but we'll stipulate to that also.
MR. SIKMA:  I have.
I would state for the record that in previous testimony Government Exhibits 29-G and 29, Government Exhibit 29-G was found by Special Agent Cunningham taken from SA Coler's vehicle; and 29-F was taken from SA Williams' vehicle.
Q  (By Mr. Sikma) Now, I would direct your attention to Government Exhibit 29-G and ask you to tell the jury what type of examination you performed on Government Exhibit 29-G.
A  Government's Exhibit 29-G consists of three .30 caliber bullets, or bullet fragments. In my examination of these items was to determine first of all their caliber. Next, the type of rifling in the barrel from which they were fired. After that to determine if these bullet, or bullet fragments had any marks on them that could be used to identify them with the weapon from which they were fired.
Q  And what if anything, do you have an opinion as to the, these items that you have before, Government Exhibit 29-G?
A  Yes, sir.
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Q  And what is that opinion?
A  That Government's Exhibit 29-G are 30 caliber bullets and bullet fragments, and that they were fired from a barrel which has four grooves with a twist to the right; and the dimensions of the grooves in the barrel and the number and the direction of the way they twist is the same as the barrel in 29-A.
However, there were not sufficient microscopic marks on any of the surfaces of 29-G to permit me to make any conclusion as to whether they had been fired from 29-A, or another rifle with the same rifling in this barrel.
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Q  I will show you Government Exhibit 29F and can you tell me whether or not you can make the same statement with regard to Government Exhibit 29F and Government's Exhibit 29F consists of approximately 12 .30 caliber bullet or bullet fragments, falls into the same category as 29C in that the rifling in these specimens is the same as that in the barrel of 29A and they are of 30 caliber so that I could not conclude because of a lack of marks in these items that they were fired in 29A. There was nothing to prove that they were or were not, but they could have been based on my observation.
Q  Now with regard to Government Exhibit 29G and 29F, I take it there is a distinction between your findings with regard to Government Exhibit 29G and 29F as opposed to Government Exhibit 29B and 29E?
A  Yes, sir
Q  And would you explain what the distinction is to the jury.
A  In preparing the chart for those items which in my opinion were definitely associated with 29A, in other words the microscopic markings were such that my opinion is they could have been fired in no other weapon, I had a line drawn between the box containing that exhibit and the weapon itself.
Where my findings were only that the bullet is consistent with having been fired but enough markings for positive conclusion the there are no lines drawn and the reason is out there, "similar rifling only".
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Q  In other words, there were enough marks on Government Exhibit 29G and 29F to say that it could have been fired from Government Exhibit 29A, is that correct?
A  Yes, sir.
Q  But you could not say to the exclusion of all other weapons that they were fired from 29A, is that correct?
A  Well, the exclusion of any other weapon with rifling of the same type.
Q  Now did you examine any other firearm which we have here in evidence of Government's Exhibit 29A, 30A, 31A, 32A, 33A, 34A, 35A, 36A, 37A, 41A, or 69A, could Government Exhibit 29G or 29F have been fired from any of those weapons?
A  No, sir. They're either of the wrong caliber or of the wrong type of rifling in the barrel, the weapons that we have here.
Q  So there are a number of .30 caliber rifles which could fire the same ammunition but which have different lands and g grooves in the inside of the barrel, is that a fair statement?
A  Yes, sir. But it's also the, the converse of that is also true too.
Q  What kind of firearm is Government Exhibit 29A.
A  That is a .30 caliber United States rifle designated as the M1.
Q  And what's the common designation for the type of ammunition which is fired from that weapon?
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A  30 aught six is the common caliber name for that type of ammo.
Q  Was there any particular organization, to your knowledge, which used that weapon in the past?
A  The United States Army did.
Q  I would ask you to examine that weapon, Government Exhibit 29A, and tell me whether or not this firearm has a serial number on it.
A  The serial number on the M1 rifle is right here at the base. It has been removed and restored.
Q  Do you know what the muzzle velocity, in other words, the speed of a bullet coming out of the muzzle when fired from an M1 rifle is?
A  That will vary with the bullet weight. For the most common load used in this type of rifle it's about 2700 feet per second.
Q  Can you tell me whether or not that weapon is a semi-automatic or an automatic weapon?
A  It is a semi-automatic weapon.
Q  Can you tell the jury what the difference is between a semi-automatic and an automatic weapon?
A  An automatic weapon will fire, assuming it's loaded, continuously as the trigger is held down. It's a machine gun. A semi-automatic weapon, the trigger must be pulled each time for the gun to fire and it will continue to fire as long as the {3190} ammunition holds out, each time the trigger is pulled.
Q  So all you have to do is pull the trigger and if there is ammunition in there it will fire, correct?
MR. LOWE:  Your Honor, I object to the form of the question. First of all, I don't know which weapon he's talking about; secondly, it implies if you pull the trigger it will keep firing. I don't think that's what Mr. Sikma was trying to communicate, if he's talking about --
THE COURT:  Objection to the form of the question is sustained.
Q  (By Mr. Sikma) I will show you what has been marked as Government Exhibit 30A and ask you whether or not you can identify Government Exhibit 30A. I will set Government Exhibit 30AA alongside here. Do you recognize that?
A  Yes, sir. I received that weapon from Special Agent Mike Gammage of the Bureau of Alcohol, Tobacco and Firearms.
Q  And where did you receive that from Special Agent Gammage?
A  In Washington, D.C.
Q  Do you remember what date you received it?
A  It was September the 12th, 1975.
Q  Did you receive any other firearms or parts of firearms on that date?
A  Yes, sir, I did.
Q  And what kind of a firearm did you receive from him along with that, if you did in fact?
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A  I received a Colt AR15 weapon in somewhat the same condition as Exhibit 30A is in.
MR. SIKMA:  Your Honor, Defense Counsel have indicated that they would stipulate to the chart, Government Exhibit 30-I and the --
MR. LOWE:  Your Honor, there are a number of these weapons and weapon components that are absolutely undisputed. We are aware of their connection. There is no need to go through detailed proof. I have given Mr. Sikma a list of those which we have no dispute on so he can simply make recitations for the record and I will acknowledge them, if Your Honor please, as he mentions each one. There's no need to go into detailed proof on these or even the nature of proof. We'll stipulate they were connected up by proper procedures.
THE COURT:  Very well.
What is the exhibit you just put up?
MR. SIKMA:  Government Exhibit 30-1, Your Honor, and I would offer that at this time.
MR. LOWE:  No objection, Your Honor.
THE COURT:  30-1 is offered, it's received, rather.
MR. SIKMA:  Your Honor, I would state for the record that this is the firearm which was found in a burned condition in Wichita, near Wichita, Kansas, on the turnpike and brought by Mike Gammage to Washington, D.C. to this witness. I would also state for the record from the stipulation that Government {3192} Exhibit 30C would be offered by stipulation at this time and would read, paragraph 14 of the stipulation between the government and the defendant, and that is, "Government Exhibit 30-AA is a look alike gun for Government Exhibit 30-A. It is a Remington, .308 Remington Game Master model 760 carbine. It is stipulated and agreed that Government Exhibit 30-AA is a replica of Government Exhibit 30-A;
"that Government Exhibit 30-AA may be introduced into evidence to establish the appearance of Government Exhibit 30-A prior to its being damaged. Further foundation is waived."
Government Exhibit 30-C is a charge out record of nonexpendable property. This property was charged out to Special Agent Coler.
"This record also shows that the rifle. Government Exhibit 36-A and 30-A were issued to Jack R. Coler and also that the last digit of 30-A is a 2, and shows both exhibits issued to Jack R. Coler on 5/23/75 at Denver, Colorado.
"Government Exhibit 31B is a property card reflecting the ownership of Exhibit 31-A which is a Smith and Weston, model 19, .357 magnum revolver, with two and a half inch barrel, serial number 3K10439 is owned by Ronald A. Williams.
"It is still stipulated and agreed that the following firearms were in the possession of Special Agent Jack R. Coler {3193} on June 26, 1975 when he entered Jumping Bull area shortly before noon and prior to his death, that is a .308 Game Master model 760 Carbine, serial number 6967042," which is Government Exhibit 30-A.
I would at this time also offer into evidence pursuant to stipulation Government Exhibit 30-C and I will also offer into evidence at this time Government Exhibit 31-B.
MR. LOWE:  I thought the purpose of the stipulation was to eliminate having to clutter the record with a lot of these documents. Unless something is contained on here which is probative of more than what we have in the stipulation, I would resist purely on the limit that we have already got 190 exhibits and I think having more in than are already covered by stipulation or are already necessary --
MR. SIKMA:  Your Honor, they have been stipulated to by Counsel and in an earlier agreement. I don't know if Counsel is withdrawing the stipulation at this time.
MR. LOWE:  I thought we stipulated the facts. This was Coler's weapon, it was assigned to him, he had it in his possession on June 26, I don't know what these documents add to that. If there is any other fact you want stipulated, just state it, we'll stipulate. There is no contest about the weapon, no intent to try to avoid any fact that the government wants to prove. Just state what it is and make an offer of {3194} proof and we'll stipulate to it.
MR. SIKMA:  I would just refer to paragraph 15 of the stipulation and offer the exhibit at this time, Your Honor.
THE COURT:  Would you read paragraph 15 again.
MR. SIKMA:  "Government Exhibit 30-C, charge out record of nonexpendable items, the record shows rifle 36-A and 30-A issued to Jack R. Coler and the last digit of 30-A is 2, shows both exhibits issued to Jack R. Coler on 5/23/75 at Denver."
MR. LOWE:  That's exactly what we offered to stipulate. That's why I don't know why we need the documents.
THE COURT:  The stipulation refers to Government Exhibit 30-C and unless we have the exhibit it doesn't --
MR. LOWE:  Your Honor wants to do it, I don't care. Either way.
THE COURT:  30-C is received.
What about 31-B?
MR. SIKMA:  I will make that offer when we get to it. I have read the stipulation, Your Honor, but I will make the offer when we get to the next exhibit.
THE COURT:  Very well.
Q  (By Mr. Sikma) With regard to 30-B, would you briefly summarize for the jury what examination you made with regard to 30-B and 30-A and what comparisons you made.
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A  I received 30-B in the condition that it is now in, with the exception that there was a bolt inside the weapon itself. Appears to be missing. But that bolt was the item which I examined and I took a piece of lead and made an impression of the surface of these bolts -- there it is -- and the firing pin which is still intact and then compared the impressions which I took from this bolt with Government Exhibit 30-B. And the two photographs below are taken through the comparison microscope and show some of the marks which are present and upon which I based my conclusion that Government's Exhibit 30-B was indeed fired in Government's Exhibit 30-A.
Q  Government Exhibit 30-1 refers to 30-B for the record as having been found on the ground at the rear of Coler's car and is Q 336, and it was opinion, as I understand it, that Government Exhibit 30-B was fired in Government Exhibit 30-A, to the exclusion of all other firearms, is that correct?
A  Yes, sir.
Q  What kind of -- I'll withdraw that question.
I'll show you Government Exhibit 30-AA. Are you familiar with that type of weapon?
A  Generally speaking; yes, sir.
Q  And do you know any particular group that uses that weapon. or any organization that uses that weapon?
A  Well, the FBI issues this particular weapon to its field officers in limited quantities.
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Q  And I take it, is it fair to state as stated earlier, that Government Exhibit 30-A was, prior to the time it was burned, a similar type of condition or looked similar to Government Exhibit 38-A?
A  Yes, sir. It is the same Remington Model 760 carbine and the same type.
Q  I would show you what is identified as Government Exhibit 31-A. Have you seen that before?
A  Yes, sir.
Q  I will show you also Government Exhibit 31-D, 31-E. Are you familiar with Government Exhibit 31-D and 31-E?
A  (Examining) Yes, sir.
Q  Now, did you make a comparison between 31-D and 31-E and Government Exhibit 31-A?
A  Yes, I did.
MR. SIKMA:  Your Honor, I would offer into evidence Government Exhibit 31-1.
MR. LOWE:  No objection, your Honor.
THE COURT:  Exhibit 31-1 is received.
(Plaintiff's Exhibit No. 31-1, having been previously duly marked for identification, so offered in evidence, was received.)
Q  (By Mr. Sikma) Would you tell the jury what the results {3197} of your comparison, Government Exhibit 31-A and 31-D and E, what the results of that comparison were?
A  Yes, sir. The comparison I conducted between cartridge cases which I fired in 31-A and compared with the cartridge in 31-E and the six cartridge cases in 31-D, my conclusion was that 31-E and 31-D were fired in 31-A, based upon the configuration of the firing pin impression in the test cartridge cases that I fired and the items, 31-E and 31-D.
MR. LOWE:  That's on our stipulation, your Honor, so there is no objection.
THE COURT:  Very well.
MR. SIKMA:  Your Honor, it is also stipulated that Government Exhibit 31-A is the firearm belonging to Special Agent Ronald A. Williams; and that Government Exhibit 31-A was in his possession on June 26th, 1975, when he entered Jumping Bull Hall shortly before noon prior to his death on that date.
I would at this time, pursuant to the stipulation read earlier, offer into evidence Government Exhibit 31-B.
THE COURT:  31-B is received.
(Plaintiff's Exhibit No. 31-B), having been previously duly marked for identification, so offered in evidence, was received.)
++Q  (By Mr. Sikma) I would like to point out or ask you to point up something on the chart. You have on the chart, that {3198} Government Exhibit 31-E was from Coler's car and area; and you have a Q number under that, 343; and on the other 31-D you have "From cabin at Al Running's property," Q2126 to Q2131.
Now, did you -- are you yourself knowledgeable of those facts, or is that information that you received by some other means?
A  That is the information that I received as to the location of the recovery of these items. I have no personal knowledge of where they were recovered, that is the way the evidence was sent to me and set out in the communications covering its being sent to me.
Q  Now, once again, the Q numbers, who assigned those Q numbers to the various items in Government Exhibit 31-1?
A  I did.
Q  Now, is it correct that you assigned one Q number for each item?
A  Yes. We tried to do that, wherever possible.
Q  I will show you what is marked as Government's Exhibit 32-A. Can you tell me what Government Exhibit 32-A is?
A  Yes, sir. It is a 30-30 caliber Marlin rifle.
Q  And did you make a comparison with items in Government Exhibits 32-A with other items of evidence?
A  Yes, I did.
Q  And would you state for the record what those items are?
A  I compared Government's Exhibit 32-A with items I assigned {3199} Q No. 93, 94, 129, 2531, 2532.
Q  Did you also make a chart of the comparison with Government Exhibit 32-A with those items?
A  Yes, I did.
MR. SIKMA:  Your Honor, I would offer into evidence at this time Government Exhibit 32-1.
MR. LOWE:  No objection, your Honor.
THE COURT:  32-1 is received.
(Plaintiff's Exhibit No. 32-1, having been previously duly marked for identification, so offered in evidence, was received.)
Q  (By Mr. Sikma) Would you tell the jury what the results of the comparison between 32-B and 32-G and Government Exhibit 32-A were?
A  That the cartridge cases in 32-B and the cartridge cases in 32-G were fired in 32-A.
Q  Now --
MR. LOWE:  (Interrupting) That's stipulated, your Honor, also.
THE COURT:  Very well.
Q  (By Mr. Sikma) Now, how many different comparisons did you make on the items found in or near the green house, Government Exhibit 32-B, what comparisons did you make on that particular -- on those particular Q numbers?
A  On the items that are in 32-B?
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Q  Yes.
A  Well, I simply compared them with test cartridge cases that I fired in 32-A and formed my conclusion from a study of the microscopic marks on those cartridge cases with the items in 32-B.
Q  Now, these items, Q93, Q94, Q129, and Q127 are all grouped together in one group, 32-B. Why are they grouped together in one group?
A  Because they were found in the same general location.
Q  There are some numbers missing in between. Why are the numbers missing in some of those instances?
A  They were probably cartridge cases of a different caliber, or which were not identified with 32-A.
THE COURT:  The Court will recess until 3:45.
(Recess taken.)
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(Whereupon, the following proceedings were had in the courtroom without the hearing and presence of the jury:)
THE COURT:  May the jury be brought in?
MR. LOWE:  Your Honor, we were going to take up Exhibit 34-I, the voir dire on that, and at some point without the jury, and Mr. Sikma and I thought this would be a convenient time because I don't exactly know when they'll get to Mr. Hodge on it, But it may be before we recess, Your Honor.
MR. SIKMA:  It would be fairly soon, Your Honor.
THE COURT:  All right. You may.
MR. LOWE:  May I voir dire?
THE COURT:  You may.
MR. LOWE:  Do you have Exhibit 34 -- you have it there
Mr. Lodge, is it Mr. Lodge or Special Agent Lodge?
THE WITNESS:  Either one, sir.
MR. LOWE:  Okay. You are a special agent?
THE WITNESS:  Yes.
MR. LOWE:  I show you a Government exhibit, 34-I, and ask you if you did not prepare that on the basis of some test you made on, I think it was, five different AR-15's?
THE WITNESS:  Yes,
MR. LOWE:  Am I correct, first of all, that they were AR-15's as opposed to M-16's?
THE WITNESS:  They were both.
{3202}
MR. LOWE:  They were both, I see. And do you know which ones are which on your color pattern?
THE WITNESS:  I can relate to my notes and identify which is which.
MR. LOWE:  Will you do that, please.
THE WITNESS:  Weapon number 1, which is blue color coded, is an AR-15.
Weapon number 2, which is a black color coded, is an AR-15.
Weapon number 3, which is green color coded, is an AR-15 which has the M-16 adaptation.
MR. LOWE:  Well, now when you say it has the "adaptation" is it an M-16 or an AR-15?
THE WITNESS:  Well, the mechanism is the same, sir, except for the trigger device which is altered to fire fully automatic and has the selector switch for the full automatic for motive fire.
MR. LOWE:  But my question is:  Was it an M-16 or was it an AR-15?
THE WITNESS:  Well, the M-16 is an AR-15 with full automatic capability.
MR. LOWE:  I understand that. The physical hardware which is called an AR-15 is different from the physical hardware which is called an M-16 in that there is a full automatic capability and a selector switch on the M-16.
{3203}
THE WITNESS:  Which does not affect the ejection pattern of the gun.
MR. LOWE:  My question is:  Is the piece of hardware that has full automatic capability at any time properly called an AR-15, or is it only properly called an M-16?
THE WITNESS:  It is called a military M-16,
MR. LOWE:  Has this ever been called by anybody an AR-15 when it has full automatic capability?
THE WITNESS:  It could be.
MR. LOWE:  Not could be, I know that you could call an elephant this, but it wouldn't make an elephant out of it. My question is --
MR. SIKMA:  Your Honor --
MR. LOWE:  I think it's quite obvious this witness is an expert and he knows what I'm asking and he's evading.
MR. SIKMA:  Your Honor, I'd object because if it is called that on certain occasions that answers the question. He asked if it ever could be and he answered --
THE COURT:  Proceed.
MR. LOWE:  My question is not whether you could call it an AR-15. To your knowledge has any respectable firearms person ever called an M-16 an AR-15 properly?
THE WITNESS:  I don't really know, sir, if they have or not.
For the purposes of this, if you prefer we'll call it {3204} an M-16 if it's fully automatic and has the Government stamp on it.
MR. LOWE:  I only want it called that if that's the proper designation. That was number 4; is that right?
THE WITNESS:  Number 4 is, yes, U.S. rifle.
THE COURT:  What was number 3?
MR. LOWE:  What was number 3, is that also an M-16?
THE WITNESS:  Number 3 is, too, yes. M-16.
MR. LOWE:  How about number 5?
THE COURT:  Number 4 was, excuse me?
THE WITNESS:  Number 5?
THE COURT:  Just a moment. You had gone through number 3 which was color coded green. You had not given any testimony on number 4.
THE WITNESS:  I'm sorry, Your Honor. Number 4 is color coded yellow and that is an M-16. And number 5 is color coded red and that is an M-16.
MR. LOWE:  All right. Now, when you conducted these tests you conducted them firing at shoulder position and also at hip position; is that correct?
THE WITNESS:  Yes, sir.
MR. LOWE:  And utilizing Government Exhibit 34-AA, which I represent to you, I presume you probably know has been identified as an AR-15, when you say at shoulder level I presume that you lodged the butt up against your shoulder, held the {3205} gun parallel to the ground approximately and fired off, I guess it's ten shots; is that correct?
THE WITNESS:  I forget how many we had loaded in the clip. I think we fired each weapon twenty times from each position if I am correct. But that is the position that it was fired from, from the shoulder, yes, sir. Regular --
MR. LOWE:  All right. With the weapon parallel to the ground?
THE WITNESS:  Yes, sir.
MR. LOWE:  It was not pointing down, it was not pointed up as near as you could do it, to the limits of your eyeballing it in it was parallel to the ground when you fired?
THE WITNESS:  Yes. We were shooting into a sandbox at some distance away at approximately eye level target.
MR. LOWE:  I presume also that you did not turn the weapon on its axis in any way, but rather tried to keep the vertical axis of the magazine and the handle on the weapon with the actual vertical as you were firing so that the weapon was not turned in any direction either?
THE WITNESS:  That's correct.
MR. LOWE:  All right. And in firing from the hip position I trust you did essentially the same in terms of the vertical and horizontal axis of the gun, that is that it was fired at the level and it was fired with the gun substantially in the vertical plane except that you were holding it at hip {3206} level when you fired it; is that correct?
THE WITNESS:  Yes.
MR. LOWE:  Now, because I do not have colors on my -- would you again just designate which colors these are. You say the yellow, the green, yellow and red are the M-16; is that correct?
THE WITNESS:  The last three, yes. Green, yellow and red. 3, 4, and 5.
MR. LOWE:  All right. Now, can you tell me first of all, I think this may be self-obvious but we're not experts and you are, on this AR-15 I'm holding Government Exhibit 34-AA, there appears to be a little portal on the side here, on the right side of the weapon directly above the slot in which the magazine fits, and I ask you whether that is the ejection portal out of which expended cartridge cases come when you fire the weapon?
THE WITNESS:  Yes, it is.
MR. LOWE:  All right. And that is on a spring of some sort so that it is thrown open I presume by the cartridge as it is ejecting and encloses behind the cartridge?
THE WITNESS:  It is thrown open by the bolt as it comes forward. And then stays open until it's manually closed.
MR. LOWE:  So that when you are firing the weapon, once you start firing would this stay open until you manually close it, is that what you are saying?
{3207}
THE WITNESS:  Yes.
MR. LOWE:  All right. When you are firing does the expended cartridge case strike this door as it ejects, or can you say?
THE WITNESS:  The door is folded down out of the way. It's flapped down.
MR. LOWE:  All right. Does it fold down all the way flat?
THE WITNESS:  As I recall it folds down pretty close to all the way. Although I'm, it may vary with some models, but it certainly has to be down out of the way.
MR. LOWE:  Now, I gather from the data that you have provided through Government Exhibit 34-I and information which we have received informally from the Government that you determined that on, let's take one of the weapons, the cartridge ejected in a generally -- some of the cartridges ejected generally towards the front as well as the right, and then in a pattern that was in the right front quadrant, if I can call it that, from the ejection portal; is that a fair statement?
THE WITNESS:  Yes. Some of them did go forward.
MR. LOWE:  And as to some of them, they ended up all in the rear quadrant, in fact very much to about the 45 degree angle to the rear on one or two of the weapons; isn't that also true?
{3208}
THE WITNESS:  Yes. Well, weapon number 5 for instance, which is color coded red, I'm sorry I'm mixing up my ammunition, the five weapons did cover an area of almost 60 degrees to the front and almost 60 degrees to the back. There was quite a range.
MR. LOWE:  Did you make any tests to see what effect on the ejection pattern, or either in distance or in direction would be affected if you aimed the gun below the parallel at an angle of, let's say, between 10 and 45 degrees below horizontal? Did you run those tests?
THE WITNESS:  All the shooting that I did was from the horizontal.
MR. LOWE:  And would it be fair for me to say as an expert that you would not be prepared to offer an opinion on the pattern, either in direction or distance that would result from firing at anywhere from 10 to 40 degrees below the horizontal without actually running tests to determine that?
THE WITNESS:  Well, not if you want to get extremely specific. In general I would be of the opinion that it would not add any increase in distance than that what I've already seen.
It could possibly change the location or shorten the distance, but I don't think it would have any appreciable, add {3209} any appreciable distance to the distance that the cartridge case would be ejected. Like I don't think it would double it or anything like that.
MR. LOWE:  It might three or four feet for example?
THE WITNESS:  It could. Another gun might add three or four feet.
MR. LOWE:  All right.
THE WITNESS:  I only tested five. But in general I don't think there would be any gross significant change.
MR. LOWE:  All right. Based on your examination of those five weapons would you be in a position to offer an expert opinion as to what the ejection pattern would be on a weapon which is called Exhibit 34-AA without testing it?
THE WITNESS:  I would be of the opinion from the tests that I conducted --
MR. LOWE:  My question is:  Would you be able to offer an expert opinion as to what the ejection pattern would be like on this weapon based on the tests that you ran on the other five weapons?
THE WITNESS:  Based on those tests it would fall someplace in that general area or close to it.
MR. LOWE:  Isn't it true that what you can really tell from the tests that you ran the following:  One, on an AR-15 or an M-16, which is fired at the horizontal when the vertical plane is maintained, that the shells ejected generally to the {3210} right of the weapon? That's the first thing you could determine that, couldn't you?
THE WITNESS:  Yes, sir.
MR. LOWE:  Number two, that different guns tend to favor different ejection patterns inasmuch as the five that you tested fairly disparent test patterns so that they is a variation of some significance in the location as to different guns you tested; isn't that true?
THE WITNESS:  Yes, And to add to that, there also was a difference in the ammunition as versus U.S. military to the commercial.
MR. LOWE:  All right. What kind of ammunition did you use to test with?
THE WITNESS:  I used both military and commercial ammunition to see if there was any difference.
MR. LOWE:  I 'm sorry, you used what? I didn't hear what you said.
THE WITNESS:  I used both United States military ammunition and the Remington commercial ammunition.
MR. LOWE:  Did you note on here, or do you, can you determine from your notes as to which rounds are which?
THE WITNESS:  The ones which are color coded red are the military ammunition. The dots which are color coded blue is the commercial ammunition.
MR. LOWE:  All right. Now, let me ask you this:  {3211} If there were hand loaded, reloaded rounds, then that might give an entirely different pattern of ejection, might it not, if it were a high charge for example or a low charge?
THE WITNESS:  I would expect that the lower the charge the further that the cartridge case would be ejected because it would not give as much energy to the recoil mechanism of the gun. And in like manner a higher velocity round may kick it a little further.
{3212}
MR. LOWE:  Let me ask you this:  When you fire the gun at the horizontal and with the vertical plane maintained vertical, does the round come out in an upward arc, does it come out exactly on the horizontal or does it come out in a downward direction when it ejects?
THE WITNESS:  In the rounds that I observed, it comes out fairly flat. Possibly with a slight arc but generally speaking fairly flat out of the weapon.
MR. LOWE:  When you say flat, you mean out horizontally approximately out of the port?
THE WITNESS:  Yes, sir.
MR. LOWE:  So that as to any distance that is obtained, it is based on the velocity of the round as it comes out, the cartridge and where it lands?
THE WITNESS:  Yes, sir.
MR. LOWE:  Do the results of your tests do any more than confirm what you would have just speculated from a right hand ejection port on a weapon when it ejects cartridges that have been expended?
THE WITNESS:  Not significantly. I had not thought that it would throw the cartridges quite as far forward of the shooter as I found on my test. Other than that one aspect; no.
MR. LOWE:  May I just confirm for a moment, Your Honor?
{3213}
THE COURT:  You may.
MR. LOWE:  I have no further questions, Your Honor. I don't know if there is any cross-examination voir dire.
MR. SIKMA:  I'll ask my questions when the jury is present, Your Honor.
MR. LOWE:  May I be heard on my objection, Your Honor?
THE COURT:  You may.
MR. LOWE:  This witness has testified that these tests were made with the gun at the horizontal. Now by any fair reading or by any even remote reading of what Dr. Noguchi testified to, nobody shot these two agents with the gun at the shoulder and at the parallel, and in fact as to Agent Coler who was on the ground, nobody shot them with the gun at the hip level. As to Agent Williams, we just simply don't know whether it could possibly have been fired at the hip or possibly even the shoulder level. There is simply no evidence whatsoever.
There is no evidence upon which this jury could conclude that the weapon, if indeed it was an AR15 to begin with that was fired, which ejected the cartridge into the trunk of Coler's car, if that is how the weapon, the cartridge got there, there is no way for the jury to conclude from the evidence in this case or even to infer properly that that weapon was fired on the level. In fact, the inference is to the opposite and that would be if the .223 was fired in an AR15 {3214} aimed at these agents that was fired in a downward manner and this witness admitted he can't, did not test the weapon under those circumstances. He cannot say, it might have thrown it further, it might have thrown it shorter. By just logic Your Honor can see by changing the elevation the way that round comes out could change the direction and where the drop and the other factors.
In addition there is at least some testimony about reloading capability. This witness admits he tested only government and commercially available ammunition and that factor could change where the pattern resulted here.
And on top of that we have three M16's which are not AR15's themselves but have some differences in the mechanism. I suggest that while this witness may think that that makes no difference, that this witness has not tested enough rounds in enough weapons by his testimony to be able to say on the basis of two AR15's and three M16's that the mechanisms change between automatic and full automatic in the M16 would not somehow affect the ejection pattern.
For all of these reasons we believe that the government has failed to provide any foundation upon which the evidence would be relevant in this case or something which the jury could probably consider as evidence.
It also says nothing that the jury does not already know and that is a right hand ejection weapon is going to throw {3215} rounds out to the right and we're willing to offer, to stipulate or have the witness testify that the rounds come out generally to the right and that they come out generally on the horizontal and then go some distance, depending on various factors.
MR. SIKMA:  I have made my argument, Your Honor. I don't think that's said has changed my opinion.
THE COURT:  Do you have an opinion as to whether there is any difference in the operation of the AR15 and the M16 except for the selector trigger device on it?
THE WITNESS:  Well, the selector trigger allows the AR, M16 to be fired fully automatic.
THE COURT:  I understand that.
THE WITNESS:  I tested the weapon the semi-automatic mode of fire and the mechanism in that respect is essentially the same, the same weapon, only the selective switch has been added to allow the bolt, the weapon to fire full automatic. So I do not see how it would affect the way the fired cartridge case is ejected from the gun.
THE COURT:  Is that your opinion? You do not have an opinion?
THE WITNESS:  Yes, sir. That would not affect it appreciably.
THE COURT:  Would it affect it at all?
{3216}
THE WITNESS:  Not that I can see. No, Your Honor.
THE COURT:  Well, if I were a defense lawyer I could have a lot of fun with arguing this case. But it seems to me it's a question of, it's a question of weight and that the evidence of the test is relevant for whatever weight that it may have. But certainly there are some holes in it as far as its weight is concerned.
Defendant has made his record and the Court will stand on the ruling that it's made.
MR. LOWE:  That's all we have, Your Honor, without the jury.
THE COURT:  The jury may be brought it.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
THE COURT:  As the jury probably surmised, the delay again was due to a legal question that arose in this case. It arose with respect to testimony expected to be elicited from this witness and it was necessary the Court go into it before the jury returned.
You may proceed.
MR. SIKMA:  Your Honor, the government and defense counsel have agreed that for a number of these items to which there is no objection we are rather going to refer to items which are already in evidence, we are going to present this witness' testimony simply with regard to the charts rather than {3217} going into all of the items of evidence.
Q  (By Mr. Sikma) I will show you what has been marked as Government's Exhibit 33-1 and ask you whether or not you recognize Government's Exhibit 33-1?
A  Yes, sir.
Q  And is that a chart that you made in relationship to the examination of items with Government Exhibit 33A?
A  Yes, it is.
MR. SIKMA:  Your Honor, I would offer Government's 33-1 into evidence at this time.
THE COURT:  Any objection?
MR. LOWE:  Just hold up the chart. I'm trying to remember.
Subject to the record, we have no objection, Your Honor.
THE COURT:  Very well.
33-1 is received.
Q  (By Mr. Sikma) I direct your attention to Government Exhibit 33-1 and I will draw your attention to the notation there which is 330. What does that particular box in Government Exhibit 33-1 relate to, what does that represent?
A  33C is a .44 magnum bullet which was recovered, which I received as having been recovered from the notation and from my examination of 33C in comparison with test bullets that I fired in 33A, it is my opinion that 33C was fired from 33A.
{3218}
Q  The notation there reads that item was Q1 taken from the body of Special Agent Williams.
Now you were able to make a positive identification on Q1, 33C, is that correct?
A  Yes, sir.
Q  I would also now refer you to the square marked 33F. Would you tell the jury what that is?
A  Those are two other .44 magnum caliber bullets which my opinion is that they were fired from Government's Exhibit 33A.
Q  And the notation there is that it was taken from Special Agent Williams' car. Now they are Q12 and Q26, is that correct?
A  Yes, sir.
Q  Now the remainder of the items were shell casings taken from the scene, Government Exhibit 34, or 33B, from the 1967 Ford Galaxie, 33D; from the 1966 Chevrolet Suburban, 33E, and near the white house adjacent to the crime scene, Government Exhibit 33G and you also conducted a comparison with those items. What type of comparison did you make between those objects and Government Exhibit 33A?
A  I made a comparison of those cartridge cases in 33B, D and E and G with the cartridge cases which I fired in Government's Exhibit 33A, and based upon the microscopic marks appearing in the test cartridge cases which I fired and the markings appearing on the cartridge cases in those exhibits, My opinion is that they were all fired in 33A.
{3219}
Q  Now is the same true of Government Exhibit 33B which was found 75 yards past the culvert on the road to Oglala Lake leading into hills, is the same true of 33B as was true of 33, the other cartridge casings found relating to 33A?
A  Yes. 33H in my opinion was also fired in 33A.
Q  Now I would direct your attention to 33K and 33J. Would you relate to the jury what your findings were with regard to 33K and 33J?
A  33K and 33J are .44 caliber bullets which contain rifling like that produced by the barrel of the rifle, Exhibit 33A consists of 12 grooves twisting to the right. The connection is only that 33K and 33J could have been fired from 33A or from another similarly rifled barrel.
Q  Now 33A is of what rifling did you say?
A  12 grooves cut inside the barrel twisting to the right.
Q  Did you measure the grooves?
A  Yes, I did.
Q  Did the measurements match with Government's Exhibits 33K and 33J?
A  Yes, sir.
Q  I would direct your attention to what is marked as Government Exhibit 36-1 and ask you whether or not you recognize Government Exhibit 36-1?
A  Yes, sir, I do.
{3220}
Q  Did you prepare this chart, or was it prepared under your direction?
A  It was prepared at my direction.
Q  And does it relate to Government Exhibit 33-A -- or excuse me, 36-A?
A  Government Exhibit 36-A, yes, sir.
MR. SIKMA:  I would offer into evidence Government Exhibit 36-1, your Honor.
MR. LOWE:  No objection.
THE COURT:  36-1 is received.
(Plaintiff's Exhibit No. 36-1, having been previously duly marked for identification, so offered in evidence, was received.)
Q  (By Mr. Sikma) Would you relate to the jury what examinations you made with regard to Government Exhibit 36-B and 36-A?
A  I again testified that Government's Exhibit 36-A is a Remington Model 870 shotgun, and I compared the test fired shot shell from 36-A with 36-B which was the fired shot shell; and the marks on the primer area of the shot shell which I received on 36-A are identical to the marks on the firing area of the shot shell, 36-B; and it is my conclusion that 36-B was fired in 36-A.
MR. SIKMA:  Your Honor, we have a stipulation with regard to Government Exhibit 36-A, that it is stipulated and agreed that Government Exhibit 36-A, a Remington Model {3221} 870 shotgun, 12 gauge, Serial No. SO -- excuse me -- S043910V, was in the possession of Special Agent Jack R. Coler on June 26th, 1975, when he entered the Jumping Bull Hall area shortly before noon and prior to his death. It is stipulated and agreed that if the custodian or other qualified witnesses of the Denver FBI Property Documents were called he would testify that said firearm was checked out to Special Agent Jack R. Coler.
It is further stipulated that said firearm was in the possession of FBI Agent Jack R. Coler shortly before noon, June 26, 1975, when he entered the Jumping Hall area.
Q  (By Mr. Sikma) I will show you what is marked as Government Exhibit 37-1 for identification, and ask you whether or not you recognize it?
A  Yes, I do.
Q  Is this a chart also which you prepared with relation to Government Exhibit 37-A in your examination at the FBI Laboratory in Washington?
A  It is a chart that I had prepared, yes, sir.
MR. SIKMA:  Your Honor, I would offer into evidence Government Exhibit 37-1.
MR. LOWE:  No objection Your Honor.
THE COURT:  37-1 is received.
(Plaintiff's Exhibit No. 37-1, having been previously duly marked for identification, so offered in evidence, {3222} was received.)
Q  (By Mr. Sikma) I would direct your attention to Government Exhibit 37-1 and ask you with regard to the box denoted as 37-B from Williams' car, Q20, what comparisons you made between Government Exhibit 37-A and 37-B?
A  I test fired .45 caliber ammunition in 37-A into a water recovery tank and recovered the bullets, cartridge cases. I then compared those bullets that I fired with the .45 caliber bullet which is Government's Exhibit 37-B; and based upon my observations under the comparison microscope, I concluded that Government's Exhibit 37-B was fired from Exhibit 37-A.
Q  Now, is that a comparison which is made to the exclusion of all other firearms?
A  Yes, sir.
Q  I notice on Government 37-C which depicts two items found on the east side of the green house, one of those appears to be an unfired round. Can you explain what that is?
A  Yes. This is what we would call commonly a misfire. In other words, the firing pin struck the primer of the cartridge, but it either did not strike it with sufficient force to make the cartridge go off or the priming compound in the cartridge was not of sufficient quantity to make it go off, so it did not fire the cartridge. It did --
Q  (Interrupting) Go ahead.
A  It did, however, leave an impression of the firing pin in {3223} the primer itself so that impression could be compared with the weapon or cartridges that were test fired in the weapon.
Q  The photographs, you have what appear to be photographs under designated Q123 and Q7. What are those photographs, would you take the -- and if it is necessary, would you take that pointer there and point out the comparisons which you made so the jury can see what comparisons you made with regard to those items?
A  The photograph on the left, marked Q236, Q123, contains the circle which is the whole head of the primer itself. That's the portion of the cartridge that the firing pin strikes. The indentation in that primer is caused by the firing pin.
Now, what Q -- this photograph, Q123 and Q7 represents is essentially some of the microscopic marks that I saw underneath the comparison microscope; and these markings, the parallel markings that you can see are caused when the cartridge case recoils against the breech. It is what is called breech case firing.
The line down the middle separates the two objects optically so that the one, the cartridge case on the right is the one I test fired, and the cartridge case on the left is the one which I received as having been recovered from the east side of the green house in 122.
Q  I would now direct your attention to the photograph, or really two photographs in the right lower, lower right corner {3224} of that Exhibit 37-1, and ask you, what do those photographs depicted by Q214 and K7, what are they photographs of?
A  Q214 is the misfired cartridge, and this is the partial firing pin impression which was in the primer of that cartridge.
You will notice the light is bouncing off the area around that indentation, indicating that it was not a full impression as is on the photograph on the right of K7; but you can see the grinding marks on the shape of the firing pin -- in the shape of the firing pin are the same.
Q  And what is the photograph on the lower left-hand side?
A  Those are the microscopic markings which are left on the surface of the bullet by the barrel of the gun, and the matching up of those microscopic markings is what we base our opinion on in firearms identification, that they coincide essentially.
Q  I will show you what is marked as Government Exhibit 41-B for identification, and ask you whether or not you recognize that?
A  Yes, sir, I do.
Q  And is Government Exhibit 41 -- excuse me 41-1 another chart which you prepared with relationship to Government Exhibit 41-A and 41-B?
A  Yes, it is.
MR. SIKMA:  Your Honor, I would offer into evidence Government Exhibit 41-1.
MR. LOWE:  No objection, Your Honor.
{3225}
THE COURT:  41-1 is received.
(Plaintiff's Exhibit No. 41-1, having been previously duly marked for identification, so offered in evidence, was received.)
Q  (By Mr. Sikma) Again would you tell the jury what comparisons were made in the .22 caliber rifle designated as Government Exhibit 41-A and the mark on 41-B?
!A  My comparison in -- with Exhibit 41-A was to determine if the cartridge case was fired in that particular weapon. Cartridge case designated as 41-B. Again I test fired ammunition in 41-A and made a microscopic comparison of the firing pin impression, in other words, where the firing pin struck the cartridge case; and in this type of weapon there is another area that can be compared in that it is a .22 caliber rim fire gun; and as the firing pin strikes the rim, it also causes the rim of the cartridge to be crushed against the barrel of the gun so that sometimes microscopic marks directly over the barrel of the gun, the breech of the barrel can be transferred to the rim on the cartridge case.
In this particular instance both the markings in the firing pin impression and from the outside of the chamber, the breech of the barrel were consistent with -- between Exhibit 41-A and Exhibit 41-B, and my microscopic examination led me to conclude that they were fired by the same gun.
Q  That is a .22 caliber, is it not?
{3226}
A  Yes.
Q  Now, what is the actual measurement of that in terms of inches?
A  The bullet diameter?
Q  Yes.
A  It varies from .221 to about 224 thousandths of an inch.
Q  Did you examine any other -- any other bullets or fragments with approximately the same diameter, any other type of rounds?
A  Yes.
Q  And what kind were those?
A  They were jacketed bullets of .22 caliber.
Q  And what was their caliber or their normal designation?
A  Well, the normal designation is .22 or 5.56 mm., military -- it would be in the metric system -- that would be called that.
Q  Have you heard of the designation .223?
A  Yes, sir, that's a .22 caliber.
Q  And what is .223?
A  Well, .223 is the name of a cartridge type, in other words, it is .22 caliber; and the whole cartridge itself is called a .223, .223 Remington is the full complete name.
Q  What is the difference between the .223 and the .22 as you have designated there on Government Exhibit 41-B?
A  Well, the difference is that this is a very small cartridge. It is rim fire versus the .22, .223 being the center fire, in other words, the pin sits in the center of the cartridge case, {3227} whereas the primer strikes the edge of the cartridge case in Exhibit 41-A. The bullets are entirely different. 41-A will fire a lead bullet which is not copper coated. A .223 caliber bullet is copper coated, a much harder bullet.
Q  You have in front of you Government Exhibit 41-B. Would you show the jury what kind of a cartridge casing it leaves?
{3228}
A  (Indicating)
Q  Now I'll show you Government Exhibit 34-D. Is this this .223 round which you were talking about?
A  Yes, sir, it is.
Q  Okay. Now would you hold them up so the jury can see by comparison the difference between the two.
MR. SIKMA:  If it's all right, Your Honor, perhaps the witness could step down so the jury could see the difference.
THE COURT:  Witness may step down.
THE WITNESS:  (Indicating.)
Q  (By Mr. Sikma) What is the muzzle velocity of Government Exhibit 41-B, if you know, approximate muzzle velocity?
A  Well, 41-B is a Winchester. The maximum velocity would be in the area of 3200 feet per second.
Q  41-B, are you sure?
A  I'm sorry, that's the wrong one.
41-B is the .22.
.22 long rifle, it would be in the area, fired in a rifle, about 1700 feet per second, 1800 feet per second.
Q  Okay. Now, 34-D I believe is that the other?
A  34-D?
Q  Yes.
A  That is in the area of 3200 feet per second.
Q  I will show you what is marked as Government Exhibit 69-1 and {3229} ask you whether or not you recognize 69-1?
A  Yes, I do.
Q  And is that a chart which you had prepared as the other charts to compare Government Exhibit 69-A with various exhibits, cartridge casings?
A  Yes. That's -- I had that prepared.
MR. SIKMA:  I would offer into evidence Government Exhibit 69-1.
MR. LOWE:  No objection, Your Honor.
THE COURT:  69-1 is received.
Q  (By Mr. Sikma) There is a notation on Government Exhibit 69-1. Depicts an examination of what kind of firearm?
A  Government's Exhibit 69-A is essentially a World War II British army rifle and caliber .303 British.
Q  And what kind of comparisons did you make about Government Exhibit 69-A and 69-B, C and D and E?
A  I compared the chart cartridge casings in 69-B, C, D and E to the cartridge casings which I test fired in Government's Exhibit 69-A.
Q  And what did you find, or what did you determine as a result of those comparisons?
A  That the microscopic markings left on 69-A test cartridge cases that I found were identical to the microscopic from both the breech face area in the firing pin impression and 69-B, C, D and E, so it was my opinion that the cartridge casings in {3230} 69-B, C, D, and E were fired in Government Exhibit 69-A.
Q  I will show you what is marked as Government Exhibit 35-1 for identification and ask you whether or not you recognize Government Exhibit 35-1?
A  Yes, I do.
Q  And what is that?
A  That is an exhibit that I had made up for the K 87 revolver.
MR. SIKMA:  I would offer into evidence Government Exhibit 35-1.
MR. LOWE:  No objection, Your Honor.
THE COURT:  35-1 is received.
Q  (By Mr. Sikma) What kind of weapon does 35-1 relate to?
A  The weapon, Exhibit 35-A is a .357 magnum Smith and Wesson, Model 19 revolver.
Q  I will show you what has been marked as Government Exhibit 30 -- excuse me, 35-A and ask you whether or not you had an opportunity to examine Government Exhibit 35-A?
A  Yes, sir, I did.
Q  Now, does that firearm, would you look at the butt plate of that firearm. Is there, can you tell me whether there is normally a serial number there?
A  Yes. The serial number is normally, on the Smith and Wesson revolver, stamped into the butt.
Q  And is there one there on that particular firearm?
A  No, there is not.
{3231}
Q  Can you tell whether or not there was a serial number there?
A  Smith and Wessons do put their serial number in that area. This area up here appears to have been ground off and it appears that the serial number has been removed from that area.
Q  I would direct your attention to Government Exhibit 35-1 to the box which is designated 35-b and 35-G designated from the seat of Coler's car. Would you tell the jury what kind of comparisons you made with the cartridge casings which are designated on box 35-B and 35-G?
A  Yes, sir. As with the other cartridge cases that I examined I test fired Government's Exhibit 35-A and took the cartridge cases, 35-B and 36 -- I'm sorry, 35-G and placed them on the comparison microscope and compared the imperfections in the firing pin impression of those cartridge cases with the imperfections in the firing pin impressions in the cartridge cases that I test fired in Government's Exhibit 35-A.
MR. LOWE:  We'll stipulate to these. I thought they were on the list that I gave you. If they weren't, they should have been. There's no contest on these. Am I correct?
MR. SIKMA:  Yes, that's correct.
Q  (By Mr. Sikma) Now, is the same true of 35-E, which is designated from the cabin near residences of Al Running?
A  Yes, sir.
Q  And how many cartridge casings were in that group?
{3232}
A  I believe there were six in that group.
Q  And I would direct your attention to the Government exhibit designation 35-F on that chart from a brown metal tool chest in one of the vehicles involved in the shoot-out with Ontario State Police at or near Ontario, Oregon on November 14, 1975. How many cartridge casings were compared in that group?
A  Six.
Q  And what did you find with regard to Government Exhibit 35-F and 35-A?
A  With regard to Government's Exhibit 35-F and 35-A, that 35-F was fired in 35-A.
Q  And is that to the exclusion of all other firearms?
A  Yes, sir.
MR. SIKMA:  Your Honor, pursuant to stipulation at this time I would offer into evidence Government Exhibit 35-C which is the property assignment card for Jack R. Coler pertaining to Smith and Wesson Model 19, .357 magnum, four inch barrel revolver, serial number K622056, O. N. I. on left side, to Jack Coler. "The parties hereby stipulate and agree that if the custodian or other qualified witness of said document were called he would testify that said records are kept in the ordinary course of a regularly conducted business activity, and it was the regular practice of the business activity to make said records. Further foundation is waived."
{3233}
With that I would offer into evidence Government Exhibit 35-C.
MR. LOWE:  No objection, Your Honor.
THE COURT:  35-C is received.
MR. SIKMA:  I would also state, Your Honor, that pursuant to stipulation it is stipulated and agreed that Government Exhibit 35-A was in the possession of Special Agent Jack R. Coler on June 26, 1975, when he entered the Jumping Bull area shortly before noon prior to his death.
+++Q  (By Mr. Sikma) You indicated earlier in your testimony that you had received from Mike Gammage a piece of burned weapon. I will show you what is marked Government Exhibit 34-A and ask you whether or not you recognize it?
A  Yes, sir.
Q  And when did you receive that and from whom?
A  I received this from Special Agent Mike Gammage, the Bureau of Alcohol, Tobacco and Firearms in Washington, D.C. on the 12th of September, 1975.
Q  I will show you what has been marked for identification s Government Exhibit 34-B and ask you whether or not you recognize that?
A  Yes, sir.
Q  And when did you receive Government Exhibit 34-B?
A  I received Government's Exhibit 34-B on the 24th of July of {3234} 1975.
Q  And how did you receive it?
A  It came in with a large box of other items from Rapid City FBI office in Rapid City, South Dakota.
Q  And how, how did you receive it, by what means?
A  Came in by railway express.
Q  Did you compare Government Exhibit 34-B with Government Exhibit 34-A in any manner?
A  Yes, I did.
Q  Would you explain to the jury how you made a comparison?
A  Government's Exhibit 34-A, because of its condition, could not be fired. However, I could remove the bolt out of Government's Exhibit 34-A and place it in another firearm, AR-15 rifle, and test fire it in that manner.
This I did and compared the markings, microscopic markings placed on the cartridge cases that I fired using the bolt of Government's Exhibit 34-A with Government's Exhibit 26 -- I'm sorry, 34-B.
{3235}
Q  When did you make the comparison on Government's Exhibit 34B?
A  I don't really know the day that I did it. It would have been sometime late in the year of 1975 or early 1976.
Q  And do you have an opinion as to the comparison which you made between the known items fired from the firing pin of Government Exhibit 35A and the firing pin impression of 35B?
A  No, sir. I could not form a conclusion. But based on either the firing pin or the breech face as to whether or not the Government's Exhibit 34B had been fired in Government Exhibit 34A --
THE COURT:  Now there seems to be some confusion in the record. You referred to 35 and the witness referred to 34.
MR. SIKMA:  Excuse me, 34. There is a confusion.
Q  (By Mr. Sikma) What comparison did you make? You indicated earlier, I believe, that you compared an ejection mark with 35, or 34B and 34.
A  Yes, sir. The ejector marking in the rim of Government's Exhibit 34B, I'm sorry, the extractor marking, that hook I referred to earlier, I compared that with the extractor marking placed on test which I fired in one of our weapons using the bolt from Government's Exhibit 34A.
Q  And do you have an opinion as to 34B and 34A?
{3236}
A  Yes, I do.
Q  And what is that opinion?
A  That 34B was loaded into and extracted from Government's Exhibit 34A based upon the microscopic characteristics of the extractor mark on the rim of the cartridge cases.
MR. SIKMA:  At this time, Your Honor, I'd offer into evidence Government's Exhibit 34A.
MR. LOWE:  I believe we've made some remarks on the record, Your Honor, on that. I have no additional matters to bring before Your Honor.
THE COURT:  Very well. Exhibit 34B is received.
MR. SIKMA:  34A.
THE COURT:  Was it A that you offered?
MR. HULTMAN:  Yes. A is offered.
MR. SIKMA:  Yes, Your Honor.
THE COURT:  34A is received.
Q  (By Mr. Sikma) Now did you have occasion to prepare a chart as you did with the other firearms with regard to Government Exhibit 34A and the items which you compared?
A  Yes, I did.
MR. SIKMA:  Your Honor, I'd offer into evidence Government's --
Q  (By Mr. Sikma) I show you, first of all, Government Exhibit 34-1. Can you tell me whether or not this is a chart which you referred to?
{3237}
A  Yes. That's the chart.
MR. SIKMA:  I would offer into evidence Government Exhibit 34-1.
MR. LOWE:  Again, I think we have a record on that, Your Honor.
THE COURT:  Very well. 34-1 is received.
Q  (By Mr. Sikma) With regard to Government Exhibit 34B, what is the Q number that you assigned to that item?
A  It's Q2628.
Q  I will show you what is marked as Government's Exhibit 34C. 34C is designated on the chart as from the 1967 Ford Galaxie. How many items do you have on Government Exhibit 34C?
A  35 I believe.
Q  Now did you compare all of the items in Government Exhibit 34C as you did with Government Exhibit 34B?
A  Yes, I did.
Q  And do you have an opinion as to whether or not Government Exhibit 34C as they're designated with extractor, with the extracting bolt which is found in Government Exhibit 34A?
A  Yes, I do.
Q  What is that opinion?
A  That all the cartridge cases in Government's Exhibit 34C were loaded into and extracted from the rifle of Government's Exhibit 34A.
{3238}
Q  Now 34D is designated as from a 1966 Chevrolet Suburban Q number 547. Did you conduct a comparison between the bolt of 34A and Government Exhibit 34D?
A  Yes, I did.
Q  And what were your findings?
A  That an extractor mark was present in Government's Exhibit 34D and that in my opinion based on the microscopic characteristics that was produced by the bolt of Government's Exhibit 34A.
A  34E as designated as the log house near the crime scene is Q number 2536. Did you make an examination with regard to 34E and 34A?
A  Yes, I did.
Q  And what was your conclusion?
A  That 34E had been loaded into and extracted from Exhibit 34A.
Q  Now with regard to Government Exhibit 34F, did you make an examination with regard to 34F and 34A?
A  Yes, I did.
Q  34F is designated as from the hood and top of 1967 Ford at tent city. What is your conclusion with regard to 34F and 34A?
A  34F had been loaded into and extracted from 34A.
Q  I will show you what is marked as Government Exhibit 34C which is designated on the chart as from Williams' car, Q10, {3239} 15A, 15C, Q18. Will you examine these items.
**What did you find with regard to Government Exhibit 34G?
A  Government's Exhibit 34G consists of .22 caliber copper jacket bullet fragments and those fragments designated as Q10, 15A, 15C and Q18 contain rifle impressions consisting of six grooves twisting to the right which is consistent with the barrel of Specimen Q34A.
Q  Now Q34A is what kind of firearm?
A  It's a .22 caliber center fire semi-automatic rifle.
Q  Now the .22 rifle that you referred to earlier, could those items in Government Exhibit 34G have been fired from that weapon?
A  No, sir. That fires an entirely different type of bullet.
Q  Now does that fire a rim fire or a center fire?
A  It is a rim fire cartridge. It is fired in the other rifle.
Q  Now by comparison purpose, 34A is an AR15. What is the muzzle velocity of an AR15?
A  In commercial loaded ammunition it is approximately 3200 feet per second, in that general area.
Q  Have you done any research to determine the firing muzzle velocity capabilities from any loading manuals?
A  I looked through the various loading manuals by Spear and Hornaday and Sierra and also checked some of the commercial ammunition pamphlets for the various velocity ranges that are {3240} available.
Q  I'd ask you whether or not you, show you Government Exhibit 47A and ask you whether or not you looked in Government Exhibit 47A in that regard?
A  Not in this particular manual; no, sir. I looked in a Sierra, another copy of it.
Q  The same manual, I mean, the same --
A  I don't remember if it was the same edition or not.
Q  And what did you find with regard to that, the muzzle velocity variation of an AR15?
A  Well, the highest, it can vary up to as high as, I believe, 3,690 feet per second is the highest any hand loader has listed in his manual.
Q  Now with any of the firearms which you examined in connection with this case, did any have as high a velocity capability as the AR15 by comparison?
A  No, sir. Not quite that high a velocity that was available from any of the other by hand loading.
Q  Of those that you examined in connection with this case, what was the next highest velocity?
A  The 30 aught six with 110 grain bullet.
*Q  I would show you what is marked as Government Exhibit 34H which is designated on the chart as being found from the ground beneath bodies of Williams and Coler, Q84. Did you have occasion to examine --
{3241}
A  Yes, I did.
Q  -- Government Exhibit 34H?
A  Yes, sir, I did.
Q  And what did you find with regard to Government Exhibit 34H?
A  That it is a .22 caliber copper bullet jacket. It has rifling impressions consisting of six grooves with a right hand twist and that the rifling in 34H is consistent with the rifling in the barrel of Exhibit 34A.
Q  Now you could not tell whether that was fired from Government Exhibit 34A, is that a correct statement?
A  That's correct.
Q  Why could you not make that comparison?
A  With any of the fragments in 34C and item 34H, none of them have any of the type of microscopic marks needed for identification purposes remaining on the outside surface so it would not be possible for me to identify them with any firearm.
THE COURT:  The Court is in recess until 9:00 o'clock tomorrow morning.
(Whereupon, at 5:00 o'clock, P.M. on April 5, 1977, recess was taken until 9:00 o'clock, A.M. on April 5, 1977.)

{3242}
 WEDNESDAY MORNING SESSION
 April 6, 1977
Whereupon, the following proceedings were had and entered of record on Wednesday morning, April 6, 1977 at 9:00 O'Clock, A.M., without the jury being present and the defendant being present in person:
THE COURT:  Are counsel ready to proceed?
MR. CROOKS:  Your Honor, there is one matter which I should report the Court on. This is the request by defense counsel that we check again on Mr. Hancock's 302 forms. We have done so, we've checked personally with Mr. Hancock as well as the people in Oregon to make sure that we've turned over all of the 302's. And we find that we have turned over every 302 that Mr. Hancock has made concerning his activities.
Obviously there are some 302's of witnesses, witness interviews, which have not been turned over, but which are not 3500 material. But every 302 that he has made out where he's observed anything himself has been turned over. And some of his interviews of course have also been turned over to Mr. Hanson and Mr. Zeller.
So to that extent even those have been turned over in their 3500 material. But there's nothing else that either the FBI or this office can find.
THE COURT:  Is there anything more to be presented before the jury comes in?
{3243}
MR. TAIKEFF:  No, Your Honor.
THE COURT:  Jury may be brought in.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
THE COURT:  You may proceed.
MR. SIKMA:  At this time, Your Honor, with regard to Government Exhibit 34-AA, I would like to read a stipulation. Paragraph 16 of the stipulation with regard to Government Exhibit 34-AA. "Government Exhibit 34-AA look alike gun for Government Exhibit 34-A, AR-15 .223 caliber semiautomatic rifle. It is hereby stipulated and agreed between the parties that Government Exhibit 34-AA is a replica of Government Exhibit, Government's Exhibit 34-A; that Government's Exhibit 34-AA may be introduced into evidence to establish the appearance of Government's Exhibit 34-A prior to its being damaged. Further foundation is waived."
Q  (By Mr. Sikma) Mr. Hodge, yesterday I believe we were going over the chart which is behind you, Government's Exhibit 34-1, and with regard to Government's Exhibit 34-H we had just finished talking about 34-G I believe, which were from Williams' car, bullet fragments. Now, with regard to Government Exhibit 34-H we had started to talk about that. What kind of an examination did you make with regard to Government Exhibit 34-H?
A  I examined Government's Exhibit 34-H to determine its caliber, to determine the type of rifling in the barrel from which it was {3244} fired and to determine if it had any microscopic marks on its surface from the weapon which fired it. So that I could possibly associate it with, or identify it with a particular firearm.
Q  I will show you what is offered into evidence of Government Exhibit 34-H. What were your findings with regard to Government Exhibit 34-H which on the chart is marked as from ground beneath bodies of Williams and Coler?
A  I found Government's Exhibit 34-H to be a .22 caliber copper jacket, copper bullet jacket. That it had been fired from a barrel which contained six grooves twisting to the right, and that it did not have any microscopic marks remaining on its surface which would permit me to identify it with an individual firearm.
Q  Could that particular bullet fragment, 34-H, have been fired from Government Exhibit 41-A which is also a .22 caliber rifle?
A  No, sir. It could not have been.
Q  And why not?
A  Well, first of all the ammunition designed to be fired in Government's Exhibit 41-A is .22 Rim Fire ammunition and it uses a different type of bullet.
Secondly, the number of grooves in the barrel of Government's Exhibit 41-A is eight and this bullet was fired from a barrel which contained six grooves.
Q  Could it have been fired from any .30 caliber weapon?
A  No, sir.
{3245}
Q  It would have to be something of the nature of a .22 caliber and center fire; is that correct?
A  That's correct, sir.
Q  Of those items you've seen on that rack over there; is that correct?
A  Yes, sir.
Q  Okay. Of those items, those firearms on the rack, which firearms could it have been fired from?
A  From Government's Exhibit 34-A.
Q  Then also if there, if this gun had been there, and I think we've agreed it's a look alike and not related to this offense in any way, it could have been fired from this gun as well; is that correct?
A  That's correct, sir.
{3246}
Q  Would you point up on Government's Exhibit 34 the microscopic comparisons that you have there by way of photograph and explain to the jury what they are.
A  The two photographs on either side of the chart are photographs which I took through the comparison microscope. They are large microscope photographs.
There is a line running down the middle of the photograph which is difficult to see. Nevertheless, it is there. This impression indicated by the pointer on the left side which is the cartridge case, extractor mark on the cartridge case which I fired in the laboratory (indicating).
Q  The configuration of that impression is identical to the configuration of the impression in the rim of Q 353 which is within the group 34C and that is the extractor marking on the rim of that case.
It is my conclusion based upon the microscopic matching and these impressions that Q 353 was loaded into and tracked from the K-40 rifle on 34.
In like manner the same marking appears on Government's Exhibit 34B which was my specimen, Q 2628, and this is an enlargement of the marks representative as I viewed them in the comparison microscope in the laboratory. On one side, the left side is Exhibit 34B and the other side is my test fire cartridge case.
Q  Now those are extractor marks, is that correct?
{3247}
A  That's correct, sir.
Q  Does that positively identify Government Exhibit 43 as having connection, definite connection with Government Exhibit 34A?
A  It positively identifies Government's Exhibit 34B as having been loaded into and extracted from Government Exhibit 34A.
Q  Now I believe you indicated earlier that you could not make firing pin comparisons because of the damaged nature of Government Exhibit 34, Government Exhibit 34A, is that correct?
A  That's correct.
I formed my conclusion as to whether or not the fire pin impression and the breech face marks can be cartridge casings represented by 34C series of exhibits identical with the 34A firing pin and 34A bolt face because of a lack of marks on the bolt face and the condition in which I received it.
Q  Now any one of three ways, tell me whether or not it's correct that you can make a positive connection with an exhibit such as 34A in any one of three ways? One would be bullet extractor marks, the other would be breech face marks and the other would be firing pin impressions, is that a correct statement?
A  Well, if I may rephrase that, the positive identifications for determining whether a cartridge case has been fired in a gun generally consists of the marks put on the cartridge case {3248} by the fire pin of the weapon or the marks left on the cartridge case as it recoils against the breech of the weapon and from those markings the firearms examiner can conclude that a cartridge case has been fired in a weapon to the exclusion of all others. The other markings left on the cartridge case by various mechanism parts, one of which is the extractor, can allow the firearms examiner to determine if that cartridge case has ever been in the mechanism. It does not necessarily mean that the cartridge case has been fired in that gun because the markings can be placed on the cartridge case without actually firing that cartridge case. In other words, put the shell in and then throw it out of the gun without pulling the trigger will often leave this type of mark on the cartridge case.
Q  Now the types of marks in 34C which consist of 35 cartridge casings, expended cartridge casings, 34D which is one, 34B which is another, 34E which is another and 34F which is another all had the same type of markings, is that correct?
A  Yes, sir. That's correct.
Q  They were all extractor marks from Government Exhibit 34A?
A  Yes, they were.
Q  Did you examine 34B to determine what kind of a, where that cartridge casing was made? In other words, the manufacturer of 34B?
A  Yes, sir, I did.
{3249}
Q  Now is there some place on a cartridge casing which would tell you where a particular cartridge casing comes from as far as the manufacturer is concerned?
A  Yes. The manufacturer's name is stamped right into the head of the cartridge case.
Q  I will show you Government Exhibit 34B and 34C. Could you show the jury, illustrate to the jury, if you would, where this marking is made.
Q  The initials of the manufacturer or an abbreviation of the manufacture's name in almost every cartridge case commercially manufactured in the United States is stamped right in the head of the cartridge case itself surrounding the primer. In this particular case, cartridge case from group 34C, the initials R with a dash and then a P standing for Remington-Peters is stamped up above, then the caliber designation, .223 Remington is stamped down below.
Q  and with regard to Government Exhibit 34B, where was that manufactured?
A  Government's Exhibit 34B has the same initials as the one I just mentioned. It has an R with a dash and a P and then .223 Remington stamped underneath that. The R dash P stands for Remington-Peters.
Q  With regard to Government Exhibit 34C, do you recall the manufacturer, or, Government Exhibit 34D, do you recall the manufacturer of that Government Exhibit 34D?
{3250}
A  Government Exhibit 34D has the stamp indicating it was manufactured by Winchester Western.
Q  And I have a question with regard to, are you familiar with the AR15 or used in the form of a military M16 as far as the FBI is concerned?
A  Yes, sir.
Q  Now are you familiar with how the FBI or where the FBI purchases its ammunition for the AR15 or the M16 as it's militarily designated?
{3251}
A  The majority of it is military ammunition.
Q  And from what company do they purchase ammunition for the M-16?
A  I don't know if we get it from the -- it is manufactured militarily by different organizations. The major ammunition companies make it, Winchester and Remington, and also arsenals like Lake City, arsenals manufacture it.
Q  What kind of a stamp does Lake City have?
A  It has a LC and the year of its manufacture underneath.
Q  Does it have the -- how does it have a caliber designation, do you know?
A  It does not have a caliber designation.
Q  The FBI in purchasing ammunition, or for an AR-15, would purchase ammunition from Lake City and those would have a LC designation?
MR. LOWE:  Objection to the form of the question, your Honor. It is quite leading.
THE COURT:  Sustained.
(Counsel confer.)
Q  (By Mr. Sikma) Would ammunition purchased from Lake City have a designation?
A  Yes, sir.
Q  And that designation would be what?
A  LC.
Q  Are you familiar with the -- how rounds are ejected from {3252} an AR-15 or a M-16?
A  Yes, sir.
Q  Now, would you designate or tell the jury what the difference is between an AR-15 and a M-16, if you know?
A  Both the AR-15 and the M-16 is manufactured by Colts Firearms Company in Connecticut. The essential difference is that the M-16 is a military rifle, and it has a full, fully automatic capability of fire through a selector switch on the receiver. There is also a rod on the side of the weapon which allows the bolt to be driven home should the gun become dirty, and that is the essential difference.
In appearance they are almost exactly like with the exception of that rod on the side of the receiver.
Q  Where would that be on this Government Exhibit 34-AA?
A  It would be right on the right side of the weapon coming out back to here (indicating). The selector switch is identical to this except that it has one more position on it, and that's fully automatic.
Q  To your knowledge, or do you have an opinion as to whether or not the automatic rifle designator switch has any effect on the -- on whether or not or how the expended cartridge casings are expelled from the firearm?
A  The fully automatic switch adjusts the sear only. It does not interfere with the spring mechanism or the recoil operation of the weapon.
{3253}
Since the parts are interchangeable in the bolt, it would not in my opinion affect the way that the cartridge cases were ejected from the weapon when the weapon is fired in the semi-automatic method of firing.
Q  Did you conduct any test to determine general ejection patterns of various random AR-15's?
A  Yes, I did.
Q  Or M-16's?
A  Yes, sir, I did.
Q  Would you tell the jury what you did in this regards, what kind of tests you ran?
A  I selected five weapons of this type, two were AR-15's, the civilian model, and three M-16's which are the military weapon.
I took them to our training facilities at Quantico, Virginia and fired 20 rounds from each weapon in -- 10 from the shoulder area and 10 from the hip. I used both military and commercial ammunition, and I charted where the cartridge cases were thrown from the gun.
Q  What kind of an arc, you know, do the cartridge casings usually take as they leave the firearm?
A  In the case of the five weapons that I observed, the cartridge cases, as the weapon was held vertical to the ground, the cartridge cases were thrown practically horizontally out of the gun, flat out. They may have rised an inch or two in some {3254} instances, but that was about all.
Q  Did you make any chart of your findings with regard to the ejection patterns for an AR-15 or M-16?
A  Yes, I did.
Q  I will show you what is marked as Government Exhibit 34-I, and ask you whether or not you recognize it?
A  Yes. These are the charts which I made from the shooting of these five weapons, from both the hip and the shoulder position.
Q  Now, did you take anything into consideration when you were making those charts as a result of those tests, or what was your purpose of making the tests in the first place?
A  I was asked the question, how far and in what direction would a weapon of this type eject a cartridge case, and the purpose for making the chart and running the test was to answer that question.
Q  Now, in this regard did you take measurements of a 1972 Chevy Biscayne, of the trunk area, and measurements from the ground?
A  Yes, I did.
Q  O.k., and what did you find in that regard, what did you do in that regard?
A  I found a 1972 Chevrolet Biscayne, and I measured the lip of the trunk, the distance that it was off the ground, the floor.
{3255}
Q  And when you made these ejection patterns, would you describe to the jury what you did?
A  Well, myself and another agent went down to Quantico, and we took with us 200 rounds of ammunition and five weapons selected from the reference collection of guns in the laboratory.
The other agent fired the weapons, and I charted the location of where the cartridge cases fell; and then I made a notation of where each cartridge case fell and then plotted those on this graph so that I would have a pictorial representation of the general area that these five guns would eject the cartridge cases.
{3256}
Q  Did you make a determination whether or not at various distances any or all of the cartridge casings fired as you had them fired from a gun would have cleared the trunk of the 1962 Biscayne?
A  The distance would vary considerably because the pattern fell over a very large area. The furthest cartridge case, furthest that any of the cartridges that I fired was thrown was approximately fourteen feet.
And considering the arc that these cartridge cases fell in when the weapon was fired from the horizontal position, I'm sorry, from a vertical position, the cartridge cases travel in the horizontal, that would be approximately thirteen feet away from the weapon that the, that the maximum distance from the test that I conducted.
Q  And what was the minimum distance of any of those?
A  I didn't attempt to determine a minimum distance. Some of the cartridge cases fell fairly close to the weapon within a foot, two foot, in that area. So that it could have been fairly close.
Q  But it varied from a foot to fourteen, thirteen feet as far as clearing the --
A  I think the distance is a little further than a foot. Maybe three feet was the closest from the hip position, and approximately three feet from the shoulder position, too, was the closest.
Q  And what about the distance that these would have cleared {3257} the trunk? In other words, gone into the trunk?
A  On the closer shots?
Q  Yes.
A  Well, the cartridge case would be falling somewhat steeply at that, so it would be in that area, fairly close.
Q  And what about the furthest distance that it would clear the trunk?
A  The cartridge cases that I observed went out horizontally and dropped off slowly. And as they lost energy, dropped off quickly so that the arc was in that respect. The 33 inch distance, which is the lowest part of the trunk of a Chevrolet Biscayne that I measured, would need cut off maybe a foot of the trajectory of the cartridge casing so that from what I observed 13 feet would be in the order, the maximum distance for the guns that I observed.
Q  Okay. Now, would you take the, take the Government exhibit and explain to the jury how you coded the various, the charts.
A  Should I step down?
MR. SIKMA:  Your Honor, at this time I would offer into evidence Government Exhibit 34-I.
MR. LOWE:  SubJect to the record, Your Honor.
THE COURT:  34-I is received.
MR. SIKMA:  Your Honor, could the witness step down?
THE COURT:  Witness may step down.
A  In conducting this test I color coded the five weapons that {3258} I used as to the areas where the cartridge cases fell. The blue and the black colors are the A-15's. And you notice that the first AR-15 which I tested, the blue shaded area, that is the area that that cartridge, that weapon threw the cartridges, cartridge cases that I fired.
The number 2 weapon threw them in almost exactly the opposite direction. The blue gun is kind of up and to the right, whereas the second weapon is way back behind the shooter to the right.
The three M-16 weapons, the green, yellow and red tended more, well, the green and the red tended more to throw the cartridge cases directly to the side of the shooter, to the right. Whereas the yellow gun, the middle M-16 threw it again, well, to the rear of the shooter. But those are the areas that I observed and that is from the shoulder position.
The red dots indicate military ammunition which is a full metal jacket bullet, not a soft point hunting load. The blue dots represent commercial ammunition which has a soft point bullet designed for shooting game.
From the hip position the pattern is very similar in general appearance, only just a little bit closer in. We have the edge of our circle going out a little bit beyond nine feet, here we're going out ten feet on the shoulder position. The added height, letting the cartridge cases go a little further before they hit the ground.
{3259}
Q  (By Mr. Sikma) I show you with Government Exhibit 34-AA, would you, tell me what, how the gun was held when pointed in that direction. Show the jury how the AR-15's were held when you were conducting this test, and in what two positions.
A  On the first part, the shoulder position, the shooter held the weapon in this manner (indicating), right at the shoulder. And in the second test he held it down here (indicating), at the hip.
Q  Now, I want to ask you some other question. If the firearm were pointed in a manner down toward the ground would this make some difference in the pattern that would be displayed?
A  Well, the height of the ejection port off the ground does affect the distance as we have seen from the hip and the shoulder position. The higher the ejection port is off the ground the further the cartridge cases will travel.
The angle at which the ejection port is held may tend to change the pattern. Now, I did fire a few rounds with the weapon turned sideways.
Q  This way (indicating)?
A  With the ejection port straight up in the air. And at that time the cartridge cases went about a foot up in the air and then fell back down. So that the angle that the weapon is held at can affect the pattern. And if it is held at an extreme angle, such as straight up in the air, it will tend to shrink the patterns, more of the energy will be dispersed in the cartridge {3260} case going up in the air rather than traveling out.
Of course if it's held straight down, then the cartridge case will be thrown down into the ground quicker.
Q  In all cases is, tell me whether or not it's true in all cases the cartridge casings were expended somewhat to the right and either to the front or to the rear somewhere in an arc of about sixty degrees; is that correct?
A  The actual arc from the gun, is you take your extreme cartridge cases thrown to the right and forward, and your extreme cartridge cases thrown to the right and backward, that arc is approximately 120 degrees.
It's a rather sweeping arc, but in all cases they went to the right and either straight out or in some direction forward or behind for the five guns.
Q  With regard to Government Exhibit 34-H, what kind of jacket was on that round?
A  Well, 34-H is a copper bullet jacket. The lead metal core is missing. It's a copper jacket.
Q  Is that a hard or soft jacket?
A  It is a relatively thin, relatively hard jacket.
MR. SIKMA:  I have nothing further at this time.
MR. LOWE:  Can I have a moment, Your Honor?
THE COURT:  You may.
(Defense counsel conferred.)
{3261}

CROSS-EXAMINATION by MR. LOWE:
Q  Mr. Hodge, my name is John Lowe. We've met before, haven't we?
A  Yes, sir.
Q  And we have talked about some of the matters that you've testified here today, have we not?
A  Yes, we have.
Q  In conjunction with your examination of various items in this case did you prepare any 302's, or do you utilize laboratory reports almost exclusively for making reports?
A  All of my findings are in laboratory reports.
Q  So that there are no 302's which you prepared as such?
A  No, sir.
Q  In the process of making your examinations as you go along I gather that the procedure is to first receive the item in some way, either personally delivered to you or in the mail or some other form, and when you receive the item I gather that at least in this case there was some kind of note either attached to or inserted in a plastic envelope with the item; is that correct?
A  That is correct, for a lot of the items. All of the items did not have a note, but they were contained in such a manner that marked with a number or something so that I could correlate where the item came from with the incoming communication.
Q  All right. Would the incoming communication accompany the item?
{3262}
A  yes, sir. Would accompany the package.
Q  Right. So in other words if you opened up a box you might find like an invoice or an inventory sheet on the top which would give numbers which you could identify to the items that are in the box?
A  Yes, sir.
Q  And as to some items they may have a piece of paper in an envelope with them; is that correct?
A  Yes, sir.
Q  And other items might even be marked directly on them, depending upon what type of information or what type of item?
A  Yes, sir.
Q  When you receive them I gather that one of the first things you do is to assign a number to them, a Q number which identifies it for your purposes in making tests and in making an inventory; is that correct?
A  That is correct.
Q  And is at least this information in a given investigation, in this case the Resmurs investigation, in theory there would only be one item which is numbered Q254, for example? Is that the hope and theory of it?
A  For a given case we have, you could have the same Q number assigned to two different items and two different cases if you follow me.
In other words, if I make an inner comparison between {3263} one case and another case I could be comparing the same Q numbers. But what you say is essentially correct. We try and keep the Q numbers on individual items within an individual case.
Q  And to the best of your knowledge and belief in this case, that is the Resmurs investigations and all of the items in evidence, that was followed in the sense that there are no duplicate Q numbers; is that correct?
A  Well, I believe there are duplicate Q numbers in the weapons because some of them were compared from different cases.
Q  Are you saying weapons or are you talking about K numbers for weapons?
A  K numbers.
Q  I was asking Q numbers.
A  Okay.
Q  Is that correct as to Q numbers as far as you know?
A  As f ar as I know.
Q  mere are some K numbers which would have to be identified to specific laboratory reports because there might be more than one K-1 weapon for example; isn't that true?
A  Yes, that's true.
Q  But by looking at the particular laboratory report you would find whether K-1 was an AR-15 or a .303 or whatever it might be because it's identified within the report, is it not?
A  Yes, sir.
{3264}
Q  And when you have other reports identifying a test made or a comparison made between a cartridge and a weapon, if there is a reference to K-1 it certainly should and most normally does refer to K-1 as shown in a particular laboratory report; isn't that correct?
A  Yes, sir. If it's different from the one that you are reading at the time.
Q  Yes.
A  Yes.
Q  And after you put your Q number on the item in some way by scratching or writing in ink or some other method you have, and I gather you initial it then if you can; is that correct?
A  Yes, sir.
Q  So that in the future if you want to look at a cartridge case, let's say, and see if you had ever examined it you hopefully would find a Q number either scratched or written on it and your initials E.H. for Evan Hodge, am I correct?
A  You are correct.
Q  There after having marked the items you submit it to a series of examinations, perhaps tests, and these may vary from cartridge to cartridge, gun to gun, item to item, depending upon what information is sought or what information is suspected might be available, would that also be fair to say?
A  Within certain limits, with weapons there are very few tests that we actually conduct. We generally just make a comparison.
{3265}
Other items of evidence may go to other examiners for additional tests.
Q  All right. After you, or during the time that you are making the examination, as you find either information of significance or if you find negative results do you make notations as you go along for purposes of later putting them in a laboratory report?
A  Yes.
Q  And do you use a structured method of doing this, that is, do you have some sort of laboratory worksheets that you use, or do you simply make them on a yellow pad or something and then assemble them in a file later?
A  We have what we call laboratory worksheets and that contains a listing, an inventory of all of the items that we have received in that particular case, and it is from that laboratory worksheet that we compile our final laboratory report in any given case.
Q  All right. And I trust that you, to the best of your human possibility, accurately write down the results of your examination on the worksheet and then accurately reflect in your notes the information which you extract from the worksheets at the time you write the report?
A  I write it on notes which are attached to the worksheet, yes.
Q  Yes. And to the best of your ability the information you write down is an accurate reflection of what you find, and the {3266} ultimate report contains an accurate reflection of what your notes show?
A  Yes, sir.
Q  Then you submit that report that you prepared to the requesting agency, or the requesting person I presume and perhaps some other distributions to files and various places, would that be correct?
A  That's correct.
Q  Do you maintain a copy of those laboratory reports in your own files?
A  I did in this particular case.
Q  All right. Prior to coming here to testify today what have you in the last, let's say, the last two weeks reviewed your laboratory reports in order to prepare for testifying here today?
A  Yes, sir.
Q  Now, can you give me just a ball park estimate of how many pages of laboratory report you personally authored in this case to give the jury some idea of the amount of paperwork and examinations that we're talking about?
A  No, sir. I really can't. I have before me a copy of all the laboratory reports which were issued in this matter.
As to these, these are all the findings from various examiners are included within. As to how much of this is actually my work I really have no idea.
Q  All right. Are then you reporting and testifying today in {3267} some instances as to examinations that were made by persons other than yourself?
A  No, sir, I don't believe I have.
Q  Well, all right. I'm asking you, but you've got those reports, whether they're your reports or ones that somebody else made examinations on, you have in front of you?
A  Yes. This includes all of the laboratory reports that were issued in this matter.
Q  Okay. What I'm asking is that to try and connect up some people here. What relationship if any do you have with Special Agent Cunningham?
A  Special Agent Cunningham is my immediate supervisor.
Q  Now, in reviewing your laboratory reports you've reviewed, would it be fair to say that you've reviewed over a hundred pages of laboratory reports regardless of who may have prepared them?
A  I, in reviewing, I only reviewed the work which I did.
Q  Well, would you say that may be 20 or 30 pages of work that you did at various times?
A  Oh, yes, that would be very conservative.
Q  I'm just trying to get some sense for the jury as to how many pages.
And in these pages the information, the lists of items by Q numbers or K numbers, the various reports of comparisons and everything are basically typed single spaced on 8-1/2 by 11 {3268} pages, are they not?
A  Yes, sir.
{3269}
Q  Would it be reasonable for me to assume that you do many other comparisons and examinations other than just in this case?
A  Yes, sir.
Q  Would it be reasonable for me also to assume that there is no way humanly possible to keep all that information in your head and that's one of the reasons you put it down at the time you find it?
A  That's correct.
Q  Would it also be true that this is not a case of your looking at a laboratory report to refresh your recollection but really that your recollection was put down on paper at that time and you must rely on the report as to looking at most of that information to tell what you did and what you found?
A  In some of the instances that's true and other instances I would remember.
Q  But in the main, with all the hundreds of cartridge casings and items you examined, except for some items that maybe stick out in your memory, in general you would have no particular recollection even if you read the report, would you?
A  I think that's probably fair statement, at least for half the time.
Q  That's certainly not saying anything more than you're a human being and you have got some limitations as everybody does on what you remember?
{3270}
A  Some of the things I remember and some things I don't.
Q  Did you review your working papers prior to testifying, coming here to testify today, let's say within the last month?
A  Yes, sir.
Q  Do you have those with you also?
A  Yes, I do.
Q  When was the last time you looked at them?
A  Well, I may have looked at them yesterday, as early as yesterday.
Q  And the last time you looked at your laboratory reports?
A  Would be this morning.
Q  Now we've talked a lot about a number of different kinds of ammunition components, many of which you examined. I think you only examined their cartridge casings, some of them actually had live rounds, full cartridges either in boxes or loose. Was there any kind of ammunition components, including the .223 ammunition components, you examined which were not available commercially and were not legal to possess?
MR. SIKMA:  Your Honor, I would object to that question. It's too broad, calls for a legal conclusion on the part of this witness which he would not be entitled to make. There may be hundreds of reasons why something might not be legal to possess and I think that the question is too indefinite.
THE COURT:  Well, the witness hasn't testified as to {3271} whether or not he knows.
MR. LOWE:  I'll rephrase the question, Your Honor. That's no problem.
Q  (By Mr. Lowe) Were there any ammunition components, any of the calibers, any of the types of cartridges or any of the cartridges that you observed in this investigation which cannot be purchased commercially?
A  The only area which I don't know about commercial availability would be with the .223 ammunition. I do not know if that has been released military, if that has been released for public purchase or not. Otherwise, no.
Q  Now are you speaking then of what I think perhaps is usually called 5.56 millimeter ammunition which is actually manufactured for military purposes?
A  Yes, sir.
Q  You are well aware, I trust, that there are commercial manufacturers who sell .223 ammunition, am I correct about that?
A  Oh, yes.
Q  And as to all of the weapons that you examined in this case, do you know of any of them which are not commercially available to buy through gun stores or gun order houses or whatever it might be?
A  The only weapon which is not commercially available is the M1 rifle. I don't know again as in the case of the ammunition if that were put on the market for public sale like some of the {3272} old 45s through the Director of Civilian Marksmanship.
Q  You're not saying that M1 rifles are not sold by commercial gun stores secondhand, for example, or any store that has some M1s that you obtained from some stores, you're not saying that those are not sold in the United States, are you?
A  I'm saying I don't know if they are.
Q  To your knowledge is there anything illegal about the gun store selling an M1?
A  Not --
Q  If it has one.
A  No. If it's not a stolen weapon, cleared military property, I'm sure it would be perfectly legal.
Q  Now you had submitted to you a lot of ammunition components from what I will generally describe as the Jumping Bull area which includes what sometimes has been referred to as the crime scene and tent city and some other immediate adjacent areas. If I refer to the Jumping Bull area, will you just assume that we're talking about that small area right around Oglala, South Dakota, which includes the information shown on Government Exhibit 71 behind you and the environment so we know what --
A  I have a lot of items identified as having come from tent city. Would you include that area?
Q  Yes. I'd include that area.
{3273}
Now as to all of the components that you received, am I correct in saying that the ones that came from the Jumping Bull area were received -- let me ask you first of all if you have in front of your laboratory report dated August 5, 1975? I believe one of your first ones.
A  Yes, sir, I do.
Q  I believe that indicates that the specimens were received on July 5, 1975 and they were personally delivered by Special Agent William R. Fluharty, is that correct?
A  Yes, sir. They were delivered by both Special Agent William Fluharty and Cortland Cunningham.
Q  I believe you also received some other components from Special Agent Brugger, did you not, either directly or through mail or something?
A  Those were sent to me by railway express.
Q  Were those from Special Agent Brugger?
A  Special Agent Brugger it's my understanding prepared the package and communication to submit those to me.
Q  Let me ask you, maybe I'm just not understanding, how do you know or do you have any personal knowledge as to who sent them? You say it's your understanding. Is that based on what somebody told you or your own knowledge?
A  That's based on what somebody told me. I have no personal knowledge except I received those items from Rapid City by railway express.
{3274}
MR. SIKMA:  Your Honor, may we approach the bench?
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. SIKMA:  I want to find out here if we're running into some problem with regard to the chain of custody as far as these items which were sent by railway express or if there is some indication that they were not in fact packaged sometime around the 5th of July. I believe we're talking about the .223 that was sent in by railway express.
MR. LOWE:  I hadn't intended to raise any such question. We're trying to get a factual basis established.
MR. SIKMA:  It would appear that that's the case from the questions, and whether or not he knows that, and it puts us in a position if you're going to raise that we would possibly have to call this other agent.
MR. LOWE:  At this point I have no basis for raising that. Just trying to establish what he said.
MR. SIKMA:  All right.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
Q  (By Mr. Lowe) Am I correct in saying that all of the cartridges and other ammunition components from the Jumping Bull area that you received were either received in that shipment you received from Special Agent Fluharty or from the shipment {3275} you received by railway express from Special Agent Brugger, is that correct?
A  The great majority of them. I cannot think of any items that I examined from the area you described as not having come from there. However, I would hesitate to exclude anything based upon my memory.
Q  I'm not trying to trick you. I have no knowledge myself of any other components except in those two shipments. What I'm trying to determine is whether you have any that I just may not be aware of.
Q  No. I can't think of anything that didn't come in with those two shipments.
MR. LOWE:  May we confer for just a moment, Your Honor?
THE COURT:  You may.
(Counsel confer.)
MR. LOWE:  Your Honor, Mr. Sikma has agreed with me to stipulate that all components found in what I have described as the Jumping Bull area, in other words, tent city, the crime scene and immediate environment such as the so-called escape route and so forth, some open fields around the area, were submitted for testing by the FBI firearms laboratory either by the shipment or the delivery of Special Agent Cunningham and Special Agent Fluharty or by the railway express shipment of Special Agent Brugger.
{3276}
Did I state that correctly?
MR. SIKMA:  Yes, Your Honor.
THE COURT:  The record may show the stipulation.
Q  (By Mr. Lowe) Now given -- strike that.
You never actually went to the Jumping Bull area, did you?
A  No, sir.
Q  So you are in a position of receiving items, identifying them as to particular pieces of material you received, making tests and reporting them to somebody else without knowing of your own knowledge where they came from or how they were found?
A  That's correct.
Q  And what follows from that then, I assume, is that you have no way of knowing whether you saw all of the casings or ammunition components of which were found in the Jumping Bull area but can only testify that you observed the ones that were sent to you by these two different sources?
A  Yes, sir.
Q  Now you mentioned before FBI ammunition and you were talking about Lake City. Is that an arsenal?
A  That is an arsenal; yes, sir.
Q  And you indicated it was stamped "LC" on the bottom of the cartridge casings and did not have a .223 designation. I was not clear when you were saying that whether you were testifying that Lake City Arsenal is the only arsenal that {3277} produces .223 or 5.56 millimeter ammunition. Is that what you were testifying?
A  No, sir. Only that those cartridges manufactured in the Lake City Arsenal bear the head stamp "LC" and the year they were manufactured.
Q  In fact, are there other arsenals that you know of or other sources that produce 5.56 millimeter ammunition and .223 caliber ammunition? Let's say, first of all, for the military.
Q  There are other sources other than Lake City Arsenal, yes, sir.
Q  Some of those are commercial, are they not?
A  Yes.
Q  And do I understand your testimony to be that the FBI only buys .223 or 5.56 millimeter ammunition from, or acquires it from the Lake City Arsenal?
A  No, sir.
Q  So that it is possible that at any given time an FBI agent who has 5.56 millimeter ammunition or .223 caliber ammunition for his M16 might have a commercial brand or Lake City brand or some other arsenal in his possession?
A  The ammunition which the Bureau sends out for use in this weapon is military. It is not restricted to Lake City. It could be any military manufactured cartridge.
Q  I don't think you understood my question.
{3278}
A  Would you rephrase it.
Q  I'll say it again.
At any given time an FBI agent in the field who has 5.56 millimeter or .223 caliber ammunition used in the M16 might have in his possession for that purpose commercial ammunition or military ammunition?
A  Yes, he could have.
Q  And I think we've been saying this, talking around this, but let's pin it down. The M16 and AR15 fire the same ammunition and the bore and everything in those weapons are really the same except for automatic and semi-automatic feature, aren't they?
A  That and the attachment on the side of the gun.
Q  Yes.
A  Yes.
Q  Now there has been some testimony about FBI agents firing weapons and BIA police officers in this general Jumping Bull area on June 26th. Did you receive any cartridge casings which either you were told were fired by law enforcement personnel or which you later made a determination on your own were fired by law enforcement personnel?
A  Well, only with the exception of the weapons that we have here.
Q  All right.
Excepting the five weapons, I believe it was, the {3279} shotgun, the 308 and the pistol of Special Agent Coler and the pistol of Special Agent Williams, I guess that's four weapons, other than those four weapons, did you receive any ammunition components which you subsequently determined or were told came from law enforcement personnel?
A  No.
Q  So if any such cartridge casings were found, they were removed from the total body of ammunition components prior to them being received by your laboratory?
!A  I cannot speculate on that. I did not have any weapons to make a comparison with those items, other than the four weapons I received here. I do have a large number of fired cartridge cases which I have not identified with any weapon.
Q  All right.
There has been some discussion about the term, "high velocity." First of all, would it be correct for me to say that there is no standardized definition of exactly what is meant by the term "high velocity," in terms of from so many feet per second to so many feet per second and rather it's a judgmental thing and you might have an opinion and another firearms expert might have an opinion and a manufacturer might have a different opinion?
A  From my point of view I know of no standardized definition of that; no, sir.
Q  You have testified that the AR15 is a high velocity type {3280} weapon, I believe.
A  That would fall within my definition of the term; yes, sir.
Q  All right.
Would an M1 be a high velocity weapon?
A  Yes, sir. It could hit --
Q  And would a .303 British Enfield be a high velocity weapon?
A  Yes, sir.
Q  And could you name other weapons that you would consider a high velocity weapon?
A  Yes, I could.
Q  Would you do it.
A  Well, there are several. Would you like me to restrict it to the items we have here?
Q  First of all, yes, restrict them to the weapons we have here.
A  Well, the M1 would be considered a high velocity weapon. The 303 British, the AR15, the 30-30 could be considered as high velocity. The others are relatively, the .44 magnum is relatively low velocity, under 2,000 feet per second, so I wouldn't group that in the same class with the more high powered. The same thing with the .45 automatic.
Q  I assume other than the weapons we have here there would be a lot of other weapons you could name from your knowledge of weapons that would also be considered high velocity?
{3281}
A  Yes, sir.
Q  When you said before the .45 automatic, were you speaking of the cartridge or of the characteristics of the weapon, the Commando Mark III weapon as being an automatic weapon?
A  In that particular instance I meant the weapon itself.
Q  You're saying that the .45, the Commando Mark III, .45 weapon up there is a fully automatic weapon?
A  No, sir. A .45 auto being the cartridge designation.
Q  That's what I was getting at.
A  Okay.
Q  We have had some discussions here, as you might expect, about automatic and fully automatic. There is no doubt in your mind that Exhibit, I think it's 37A, the Commando Mark III is a semi-automatic weapon only, isn't it?
A  That's correct.
{3282}
Q  In addition, you have identified these various weapons that were high velocity. There are changes that can be made with particular ammunition if you load it yourself by loading it with a higher or faster burning powder and doing other things which would raise or lower the velocity of different ammunition components compared to the similar commercial component, isn't that also true?
A  Yes.
Q  Now, as to your case number here, you said in this case -- am I correct in saying that as to the RESMERS investigations that you made and examinations that you made that you used a single file number to identify all of the components that you actually did identify or report with regard to RESMERS and that that number was 89-3229, and do you want to check your lab reports?
~A  No . That's the number which is assigned to this particular case.
Q  O.k. Now, I assume your procedure would be, if you get a whole lot of ammunition components and a number of weapons, that you would, first of all, examine the cartridges to see if there are identifiable marks which you know from your experience might relate to a weapon, and that you would in some way make notations and might make some preliminary thoughts as to what kind of weapon fired it; and then we simply go by trial and error in some way with some ammunition components in the weapons {3283} to see if you can bring about similar markings, is that generally what you would do?
A  Well, we compare the fired components that we receive, In this case I compared all of the fired cartridge cases that I received with the test cartridge cases that I shot in the laboratory itself.
Now, there is no way to make a gun produce a mark on a cartridge case that -- or change those marks. You fire the gun, the marking is either there or it isn't there, so it isn't anything alterable by the laboratory examination.
Q  Take an example, take the M-1, which is 29-A. I gather what you would do would be to take a clean, new M-1 cartridge, 30 aught six cartridge, perhaps preliminarily examine it to make sure there are no scratches or markings on it, you would put it or perhaps a clip of them in the weapon, take it to the range or test firing tank, fire the weapon a number of times, retrieve the ammunition components including the bullets and the cartridge casings, and then examine them to see what marks were made on the cartridge casing, either by the firing pin or the breech or in some weapons an extractor, and see whether you find markings on them that can compare to the ammunition components that you are trying to identify, would that be a general description of what you do?
A  Yes, sir.
Q  And as to the bullets that you find, the lands and grooves {3284} in the bore of the rifle or pistol, if it has lands and grooves, etch the lead or copper projectile as it goes through and puts some characteristic markings on that which then can be retrieved and compared with fragments, such as 34-H, which is on the chart behind you, to see whether you can match them up, and that's generally true, you do that?
A  Yes, sir.
Q  And would it be reasonable to say that you do that generally with all of these components and with the various weapons you are given, try different combinations -- in some cases you might have two or three different M-1's, you have to check and see which ones fired which cartridge case, isn't that true?
A  Yes.
Q  And when you get all done, you would make a report fairly contemporaneous with your test when it is concluded to whoever requested the information, telling them which weapons compare by your analysis, so that you can say that, first of all, some weapons fired certain cartridges to the exclusion of all other weapons, that's one category of findings?
A  Yes.
Q  A second category of finding might be that this cartridge case could not have been fired in this weapon, but I have no weapon that I can match it up with, that's a second finding, isn't it?
{3285}
A  Yes.
Q  A third finding might be that there are insufficient marks to determine whether this weapon is associated with this cartridge case, that's a third finding?
A  Yes, sir.
Q  And as to the findings, when there are no markings or very slight markings, in some instances you might even have a suspicion that it connects to a weapon but you have no way of determine that as a matter of your scientific examination unless you have sufficient markings to make your identification?
A  That's correct.
Q  All right. So that if a cartridge casing is found which has no markings on it at all of value that relate to a weapon, and if you have a weapon which makes a peculiar scratch when it ejects, let's say, you can say fairly certainly that this cartridge case was not fired in that weapon, but I don't know what other weapon it might have been fired in, isn't that true?
A  That could be true in a particular instance, yes, sir.
Q  And as to an ammunition component which has insufficient markings of any kind but has some markings on it, until such time as you are given a weapon which makes similar markings you are unable to say anything except that it apparently was fired in some weapon at some time?
A  Yes, sir. I may be able to give a list of weapons that it could have been fired from.
{3286}
Q  Fine. As to different weapons, I presume, that in some sort of an organized fashion in your laboratory, whether it is a book by manufacturers or a list that you make over the years, that if you see a particular type of scratch on a round you can by your experience and by your reference materials tell what kinds of weapons might have produced that scratch because you know the characteristics of a particular type of extractor, let's say, isn't that true?
A  Well, the incidence of being able to do that is highly limited. The mechanism of a gun is -- in some cases, yes, sir, but I would say it is very limited. We prepare these lists generally from the rifling characteristics on fired bullets rather than from an examination of the cartridge cases.
Q  If you have a bullet fragment that has, let's say, six lands and grooves -- and the lands being the raised portion and the grooves being, of course, the grooves, the cut out portions; and if they are within certain tolerances in terms of width, you can look to your reference sources and say what weapons might have fired that; you might give a list of two or ten depending upon what it is, isn't that true?
A  Yes, sir.
Q  And that would be true in some instances even if you do not have sufficient microscopic markings for comparison to a bullet that is fired from a known weapon because you can still count the lands and grooves or measure them, isn't that true?
{3287}
A  Yes, sir.
Q  And I presume that you made all of these types of tests we are talking about on the various components and weapons that were submitted to you in an effort to connect up any of these components that you could with any other weapons that you had, to the best of your ability in your laboratory?
A  Yes.
Q  I realize that as a professional you probably try to take great pains whenever you make an examination, whether it is a big case or a small case; but would it be fair to say that this has been one of the more important cases in terms of your efforts and the efforts of agents you have been associated with in trying to solve the case and in trying to connect up various firearms components, would that be fair?
A  From my aspect of this firearms identification specialist's point of view this has been the most voluminous case that I have handled. I know of other cases the Bureau has worked on where similar manpower expenditure has been conducted.
Q  And you, of course, were aware, first of all, generally, that the case involved the death of two FBI Agents, I trust?
A  Yes, sir.
Q  And recognizing that we all want to expend a 100 percent energy in everything we do, there are certain times you work a little harder than others, put a little extra emphasis on it; would it be fair to say in the range of cases you have worked {3288} on, you have worked as hard on this case as any you have ever worked on?
A  Yes, sir.
Q  We described, I think it was, July 5, was the one batch of ammunition you received. I don't think we got the date on the other. Was it around July 24, 1975, from Brugger, the Railway Express?
A  The Railway Express package I received on the 24th of July.
Q  That's what I thought.
Now, taking the ammunition components and going down, I have some questions on these various components that you described; and I think the best way for me to do this is to try to get the particular chart up. Are the charts over here?
Let's start out with Chart 29-1. I am just going to put this down. We don't have enough room here. All right.
MR. LOWE:  Now, your Honor, we are at a point where you might want to take a recess at some point, and this is a convenient breaking. I am going to get into something else.
THE COURT:  We are getting close.
MR. LOWE:  I would suggest, your Honor, this is a convenient time for a break for me. I will be getting into somewhat of a longer examination here. If you want to recess now --
{3289}
THE COURT:  (Interrupting) The Court will recess until 10:45.
(Recess taken.)
{3290}
(Whereupon, at 10:45 o'clock, a.m., the following further proceedings were had in the courtroom, the Defendant being present in person:)
THE COURT:  The jury may be brought in.
(Whereupon, at 10:48 o'clock, a.m., the jury returned to the courtroom; and the following further proceedings were had in the presence and hearing of the jury:)
(Witness resumes witness stand.)
Q  (By Mr. Lowe) I believe at the recess we were just beginning to get into Chart No. 29 which is on the board behind you, and I want to ask you some questions about it.
First of all, I want to ask you, in preparing a chart like this do you actually do the artwork, or are there specialists available to you on call at your FBI laboratories who prepare such charts for you?
A  Yes. We have specialists who prepare these charts for us.
Q  Are they within your section or are they general artists who go wherever they are needed at different times?
A  Well, they are within the same administrative breakdown that the laboratory is in, but they are available for use by anybody within the organization who needs them.
Q  And when you assemble information you want on a chart, I presume that you sit down with that person and discuss how you want to display or what information it is, and that he would consult with you perhaps with some expertise he has from a {3291} drafting point of view to decide what the best method would be to display it on a chart, is that true?
A  Yes, sir. In this particular instance, a chart like this had been used in other cases; and I merely told him I wanted something of the same format.
Q  I understand there may be other cases where you had a general outline of a rifle of some kind and general blocks for different components and pictures, but as to this specific instance, let's say 29-A, I presume you would say, "Here are the number of cartridges or the number of exhibits we are going to have here, here are some pictures I would like to display, here are some bullets I want to show," you sit down and work out with him some sort of a display which would be reduced to the art form by the artist?
A  Yes, sir, I think that's generally correct.
Q  And am I correct in assuming that you are the one who selects the items to go on the chart and you give that to the artist and he puts them on there?
A  No, sir. The prosecutor tells me the items that he wants displayed.
Q  Was there a particular prosecutor in this case who dealt with you on these charts?
A  Mr. Sikma.
Q  So do I understand then that Mr. Sikma said, "All right, I want a chart which shows the rifle and certain cartridges and {3292} certain pictures," after he has seen what you have available; and then you would take that general list of items and get with the artists and prepare the chart?
A  Mr. Sikma told me the items which he considered important that he wanted on the chart, to be associated with the 29-A rifle.
Q  All right. I don't think I actually asked you this in detail. You indicated that you knew that the incident here involved the killing of two FBI Agents. Did you ever get a briefing of any kind to give you a general idea of the Government's theory of what took place insofar as it might aid you in your detective work, if I can call it that, with tying up various weapons and weapons components?
A  After my laboratory reports had been issued, I met with Mr. Sikma and he talked to me about what he wanted displayed and his general idea of what had happened.
Q  What I am getting at, for example, did he sit down and explain when you were talking about a M-1, let's say --
MR. SIKMA:  (Interrupting) Your Honor, I object to this. It is totally irrelevant. It is within the purview of the prosecutor's work product.
MR. LOWE:  Your Honor, I think this has been invited by the introduction of 29-G and 29-F. We objected to it at the time and the Court made a ruling and said we could {3293} go into. I intend to go into in detail.
MR. SIKMA:  This has nothing to do with 29-G and 29-F.
MR. LOWE:  It most certainly does.
THE COURT:  I will permit him to proceed. I think that it is work product, and it is not entirely clear to me that it is relevant but I will permit you to go forward.
MR. LOWE:  All right.
Q  (By Mr. Lowe) In regard to, let's say, the M-1, did you sit down with Mr. Sikma and did you discuss various places that various cartridge casings or bullet fragments that might be linked up to a weapon were found in order to discuss how it might fit in with the Government's understanding of what took place on June 26th?
A  Yes, in the sense that I asked Mr. Sikma is the way that I had these items set out in the laboratory report, sight of recovery, if that is the information that he wanted displayed on the chart.
Q  O.k. Now, with regard to 29-G and 29-F, as I understand your testimony, you cannot give testimony that says that 29-G was fired from 29-A, so far am I correct?
A  You are correct.
Q  And that you cannot say that 29-F was fired from 29-A, am I correct that far?
A  That's correct, sir.
Q  And in fact, as to those exhibits isn't it true that there {3294} are a number of weapons that might possibly have fired those bullets, based on the various lands and grooves that you identified?
A  Yes, sir.
Q  Now you have identified one which you obviously believe could have fired 29-G or 29-F, and that is the 30 caliber M-1 which is Exhibit 29-A, so far correct?
A  So far.
Q  And I ask you whether it isn't true that a 30 caliber M-14 could have fired those bullets?
A  Yes.
Q  And a 30 caliber Winchester, Model 94?
A  Yes, sir, some of the older models could have fired --
Q  (Interrupting) And the 30 caliber Winchester, Model 70?
A  Yes, sir.
Q  And a 30-30 Harrington and Richardson rifle?
A  I recall that one, yes, sir.
Q  And a 30-40 Krag, U. S. Rifle, Model 1892?
A  I also recall that, yes.
Q  And a 30 caliber of some models of Browning rifles?
A  I believe that's correct. If I may, I did make a list of them so if I could follow that to go along with you --
{3295}
Q  Anytime you want to refer to notes -- let me just add that I think you also added 30 caliber Remington rifles; is that correct?
A  Yes, sir.
Q  And in fact these are not merely wild speculations necessarily since there were no weapons of some of these types found, and I would point, call your attention to your laboratory --
MR. SIKMA:  Your Honor, I would state that this is a misstatement of the record. There's only one of those kind of weapons found in relation to this offense as far as I know.
MR. LOWE:  That's fine. I didn't mean to communicate anything else, I believe that's correct.
Q  (By Mr. Lowe) The M-1, 29-A, is the only one of these kinds of weapons that you found, the weapon; isn't that true?
A  I did examine some Winchester Model 94's, but they were all of six right variety rather than the four right.
Q  But you of course having not been there either during the incident or after the incident can give no testimony about what weapons may have been fired and carried away by unknown persons, can you?
A  No, sir.
Q  All right. And I would call your attention, just as an example, to your laboratory report of August 5, 1976 at page 7. Would you turn to that.
Do you have it there? August 5, page 7.
{3296}
Q822 to 861, and I'll ask you what kind of ammunition is shown there?
A  30-40 Krag.
Q  So that in this instance for this weapon you actually found in the tent city, I believe is where you found it, ammunition components which could be fired in a 30-40 Krag rifle Model 1892?
A  Yes, sir. I received that from, listed as I think, from -- I'm sorry, that was listed as having come from a 1966 Chevrolet Suburban and --
Q  I'm sorry. Well, that was in the tent city area, all right. So from the red and white van, the 1966, '66 Chevrolet Suburban; but in any event I gather from what you have said that those cartridge casings fit a rifle which could have fired either 29-G or 29-F?
A  That's a possibility, yes, sir.
Q  Did you make up any charts outlining the Krag 30-40 rifle, Model 1892 and showing 29-G and 29-F on the chart so show that it possibly could have been fired from that weapon?
A  No, I did not.
Q  I gather Mr. Sikma didn't ask you to?
A  That's correct.
Q  And as to some of the other weapons there, there were a whole lot of ammunition components that you were never able to find a weapon for in this general Jumping Bull area, weren't {3297} there?
A  Yes, sir.
Q  And it would be fair to say that calibers and types ranged from one end of the spectrum to the other and really as to rifles?
A  There was a significant variety in the ammunition recovered, yes, sir.
Q  All right. So that actually when you put 29-G in 29-F on that chart it is put there to totally indicate in 29A in the hopes that it was associated with 29-A; isn't that true?
MR. SIKMA:  Your Honor, I'd object to this totally improper question. Counsel knows it's an objectionable question.
THE COURT:  The objection is sustained.
Q  (By Mr. Lowe) 29-G and 29-F are not connected to 29-A in any way by your tests, are they, as far as making an identification?
MR. SIKMA:  I would object to that, Your Honor. The witness has testified that there's a connection by way of possibility.
THE COURT:  Well, the witness may answer that question.
A  The only connection between the bullet fragments on the rifle 29-A is in the rifling class characteristics.
Q  (By Mr. Lowe) All right. So if you really wanted to be fair you should have had a chart with every one of those weapons that identified and then 29-G and 29-F on it?
{3298}
MR. SIKMA:  Your Honor, I object to this. Counsel knows again this is an improper question.
THE COURT:  Sustained.
MR. LOWE:  Your Honor --
Q  (By Mr. Lowe) You made no charts, did you?
THE COURT:  I sustained that objection to the form of the question.
MR. LOWE:  I understand that, Your Honor.
THE COURT:  Very well.
Q  (By Mr. Lowe) I'm asking, you made no charts similar to the chart 29-1 or any weapon on this list except the M-1, did you?
A  That's correct, I did not.
Q  In fact 29-G or 29-F could have been fired in a .308 Winchester rifle also, could they not?
A  .308 Winchester is a caliber, sir. Now, there are Winchester rifles that have that rifling model 54 and a model 70. Those models in caliber .308 could possibly have that rifling in it.
Q  You are saying that they could possibly?
A  I do not have any specific listing for the .308 caliber. I cannot exclude that since it is a Winchester caliber and there are Winchester rifles that have its rifling.
Q  Did you testify in another proceeding in this matter?
A  Yes, I did.
{3299}
Q  Did you testify under oath?
A  Yes, I did.
Q  Did you testify truthfully?
A  Yes, sir.
MR. LOWE:  If Mr. Hultman wants to refer to page 1528 of the transcript.
MR. HULTMAN:  It's not my witness, Your Honor. I'm not referring to anything.
MR. LOWE:  Well, as a courtesy, if you wanted to follow.
MR. HULTMAN:  Mr Sikma is the one.
MR. LOWE:  Well, if Mr. Sikma wants to look.
Q  (By Mr. Lowe) Discussing Exhibit 29-G and F, starting at line 11:
"Question:  In other words, if there were other firearms with similar rifling they could have all been fired from those firearms?"
"Answer:  Other firearms that would accommodate the type of bullet represented by 29-G and 29-F; in other words, a .30 carbine -- " I assume that's a 30 caliber carbine -- "wouldn't do it, but a .308 Winchester might, or another similar caliber to a .308 that had the same type of rifling."
Q  (By Mr. Lowe) Does that refresh your recollection as to testimony you gave on an earlier occasion?
A  Yes, sir. I said "might". My testimony has not changed in {3300} this particular instance.
Q  All right. Would you state what weapons fire a 30 aught 6 shell, first of all limiting yourself to the weapons that are already in evidence here involved. We know of the M-1. Are there any other weapons that fire the 30 aught 6 shell?
A  Not of the weapons that are on that board, no, sir.
Q  Are there any other commonly used weapons or weapon commonly known to you in gun shops in the United States that fire a 30 aught 6?
A  Many.
Q  All right. Now, you have up there Exhibits 29-B, 29-E, 29-A, but the ammunition components, the only ones that you've testified to have been 29-B and E. You actually identified other ammunition components to that weapon, did you not, from the crime scene area?
A  Yes, sir. If you include tent city in that.
Q  Only if you include tent city. Is that your testimony?
A  To the best of my recollection, at the moment I don't know of anything, well, yes, I'm sorry, we have an area blocked off there.
Q  You found some weapons, some cartridge cases that match up to that weapon at the Wanda Siers house which has been referred to as the tan and red house on Exhibit 71?
A  I didn't find them. I received them as having come from there, and I didn't identify them with Exhibit 29-A.
{3301}
Q  And they're not on that chart anywhere, are they?
A  No, they're masked off.
Q  May I assume then that those weapons linked up in the same way that 29-B and 29-E did in the sense that you had positive markings with which you could identify them?
A  Yes, 29, yes.
Q  I now put up chart 30-1 which is the .308 Winchester. And you have identified on that chart Exhibit 30-B, which is a cartridge case found by somebody reportedly at the rear of Coler's car, and you identified that positively with 30-A, did you not?
A  Yes, sir.
Q  And you had no weapon, no other weapons submitted to you which were identified to that weapon?
A  I don't understand the question, sir.
Q  You had no other cartridge casings submitted to you which were identified to that weapon?
A  No, sir, none.
Q  Now, going back for a moment, because I was going to ask you one other thing, I would call your attention to your laboratory report dated February 10, 1976. If you could turn to that, and on page 17 and ask you if there is a Q number 2556 identified somewhere on that page as being a 30 aught 6 shot, or cartridge?
A  Well, 2556 is mentioned. It is not identified as to caliber.
{3302}
Q  If there's another place that it's mentioned between the two places, normally in your reports you list all the items first and then you discuss the comparisons?
A  Yes, sir.
Q  Would you verify for me that your report dated February 10, 1976 shows that Q2556 was a 30 aught 6 cartridge which was found near the Siers house, the red and white, or the tan and red house that we've just discussed earlier, and that it was identified positively as having been fired from the weapon identified as K2?
A  That's correct.
Q  What is weapon K2 as referred to in that report, if you know?
A  It is a 30 aught 6 rifle which I received in another case. A case not related to the Resmurs case.
Q  So this was not a rifle found in the Jumping Bull area?
A  I don't recall where it was found, sir.
Q  It was related to another case?
A  It was Sent in on another case, yes, sir.
Q  All right. What I'm getting at, it was not sent in under this Resmurs case for identification, it was received independently?
A  That's correct, yes, sir.
Q  While you mentioned that, is it true that when you get different weapons from many parts of the country that fit the general category of cartridge casings, let's say that you were {3303} trying to identify this case, do you have some sort of cross-referencing so that when a 30 aught 6 comes in you can check to see if any 30 aught 6 cartridges which are unidentified might match up with it?
A  Not as a general rule, no, sir.
Q  In this case did you do that?
A  In this case I did that because it was I believe requested of me to do it.
Q  All right. So that you can state from your examination as shown in your report that this 30 aught 6 rifle which you received from some other case fired the cartridge Q2556 which was reported to you as having been found by the Wanda Siers residence?
A  Yes.
Q  I now show you Chart 31-1 and as I understand your testimony you identified two cartridges, 31-D -- excuse me, 31-D is six cartridges which were found at Al Runnings which is on the Rosebud Reservation, and that's 31-D.
You also identified one .38 Special cartridge, 31-E which was found near Coler's car in the area. And those are the only ammunition components; am I correct, that you identified to weapon 31-A?
A  Yes, sir.
Q  I would invite your attention to your report August 5, 1975 on page 4 and ask you whether under the general heading of Special {3304} Agent Williams' personal effects there were any ammunition components found, and if so would you state what was found.
A  Ammunition components listed in that area include six .357 magnum cartridges which were in a cartridge pouch. And thirteen .357 magnum cartridges.
Q  And those are respectively Q281 through 286 and Q276 through 299, are they not?
A  Yes, sir.
Q  And the item preceding that Q281 was the cartridge pouch itself?
A  Yes, sir.
Q  Do you know that of your own knowledge that that was a cartridge pouch taken from Special Agent Williams' body?
A  I do not know that, sir.
MR. LOWE:  Can we stipulate?
MR. SIKMA:  Would you give me the Q number?
MR. LOWE:  Yes. Q280 was the cartridge pouch, and Q281 through 299 were the nineteen .357 magnum cartridges which are shown in two lots.
MR. SIKMA:  If you'll give me just a second.
Q  (By Mr. Lowe) While Mr. Sikma is looking there, would you turn to your report dated December 4, 1975 for a moment.
MR. SIKMA:  Yes, we'll stipulate to that.
MR. LOWE:  All right. While he's looking through that, Your Honor, the Government has agreed to stipulate that {3305} the pouch and the nineteen .357 magnum cartridges which were taken from the body of Special Agent Williams and listed as part of his personal effects.
THE COURT:  The record may show the stipulation.
MR. SIKMA:  Your Honor, I would like if we could to add to the stipulation that those were live, unfired rounds.
MR. LOWE:  I intended to say that. If I didn't, when I say cartridges, that's what I mean if I said cartridge casings. That's fine to clarify that. I have no objection.
Q  (By Mr. Lowe) Do you have your report of December 4th?
A  Yes, sir, I do.
Q  Referring you to Exhibit 31-D which is Q2126 through 2131 I'll ask you whether your report indicates whether these cartridges were found in the same bag or container as certain other cartridges, cartridge casings, excuse me?
A  Yes, sir. They were contained in a bag with several other items.
Q  And among those other items, am I correct, are -- I'll get the Q number -- Q2124, 2125 and 2136 through 2139?
A  Yes, sir. They're all in that group.
Q  Do you know whether, let me show it to you, that's the best way.
I ask you, I show you Exhibit 35-1 and ask you whether those cartridge Q numbers relate to Government Exhibit 35-E?
A  Yes, they do.
{3306}
Q  So that the cartridge casings we're talking about right now, which are 31-D from Special Agent Williams .357 were contained in a bag which also contained six cartridge casings from Special Agent Coler's .357, correct?
A  Yes, sir. They were all located in --
Q  And they were all found at the Al Running property on Rosebud?
A  That's the information that I received, yes.
{3307}
Q  I now show you chart 32-1 and I believe you testified that these six cartridge casings were identified by you as having been fired from chart 32A, am I stating that correctly?
A  Yes, sir. Essentially.
Q  Now I call your attention to your laboratory report, August 5, 1975, again, and ask you to turn first to page 3 and look at Q 131-170 and I ask you if those Q numbers refer to certain 30-30 rounds, or cartridge casings I should say.
A  Yes, sir, they do.
Q  And now I ask you to turn to page 32 -- first of all, those cartridge casings, is identified there as to who found them. Is that shown?
A  Yes, it is.
Q  Who found them, according to your report?
A  Dean Hughes.
Q  Special Agent Hughes?
A  Yes.
Q  Turn now to page 23, please. As to Q 131 through 134, 148-151, 152 through 162, 169 and 170, were you able to make an identification of all of those cartridge casings being fired from the same weapon?
A  No, sir. I don't think I was. What I have there is extractor markings.
Q  Let me rephrase the question.
Were you able to determine by comparison that all of {3308} those cartridge casings were extracted at some time by the same weapon?
A  Yes, sir.
Q  And did you also determine that those cartridge casings were not extracted from weapon 32A?
A  Yes, sir. The connection, the extractor in 32A did not produce those markings.
Q  And back on page 3 I asked, you said it was found by Special Agent Hughes. Does it indicate where he reported he found those rounds, cartridge casings?
A  Just at the scene.
Q  The crime scene, doesn't it say that?
A  Well, what I have listed is "recovered" at the scene.
Q  Just "scene"?
A  Yes.
Q  But your examination showed that Exhibit 32A did not fire those cartridge casings, although you did not have given to you a weapon which did extract them, isn't that correct?
A  Well, I don't really know as to that. The 131 through 170, I do know that they had extractor markings from this paragraph that were not produced by K15, Exhibit 32A. Now the paragraph doesn't tell me any further than that and I'd have to go back and find some other area in the report. I don't recall those particular cartridge casings.
Q  As to Exhibits 32B and 32C, you did find markings sufficient {3309} to positively identify them with Exhibit 32A, however, as you show on your chart, isn't that correct?
A  32B and 32G; yes.
Q  Is it G or C?
A  C.
Q  I think it was marked G and changed to a C.
MR. SIKMA:  Yes, Your Honor. We changed the numbers from another proceeding and as a result of that it has been changed to a C. I think I may have referred to it also yesterday as 32G inadvertently.
THE COURT:  The clerk caught that discrepancy yesterday.
Q  (By Mr. Lowe) Let me rephrase my question to be more inclusive. I am correct, am I not, that you did find markings on Exhibit 32B and 32C which are depicted on chart 32-1 which enable you positively to state that they were fired from Exhibit 32A to the exclusion of all other weapons?
A  Yes, sir.
Q  Now I call your attention to the laboratory report, January 13, 1976, and ask you to look at page 8 of that report.
All right. And referring to K12, a Savage 30-30 rifle, is that shown on there?
A  Not on page 8.
Q  On page 8 it does not?
A  Page 9.
{3310}
Q  Or does it make a reference to it?
A  Page 9, sir.
Q  Maybe I have the wrong page.
In any event, in that report is there identified a weapon K12 which is a Savage 30-30 rifle?
A  Yes, sir.
Q  And does it show where it was found?
A  Yes, it does.
Q  State where it was found according to that report.
A  1967 Chevrolet.
Q  It doesn't say where the vehicle was?
A  It just says, "Obtained from a 1967 Chevrolet, South Dakota license 2-17817."
MR. LOWE:  Can we stipulate, I believe that's the red and white van, is it not?
MR. SIKMA:  Yes, it is.
MR. LOWE:  The different places it's referred to as a 1966 Chevrolet Suburban and sometimes by a license number. But that is the red and white van?
MR. SIKMA:  It's a '66, I thought I said.
Q  (By Mr. Lowe) Does it say '66 or '67?
A  I have it listed as '67.
MR. LOWE:  There is no 1967 Chevrolet, is there?
MR. SIKMA:  That's correct. That's correct.
MR. LOWE:  Okay.
{3311}
Q  (By Mr. Lowe) Let me ask you if on this board there is displayed that weapon, K12?
A  No, sir.
Q  There is a board behind it.
MR. LOWE:  Can we stipulate it's not displayed on that board either? I believe that's the Canadian weapon.
MR. SIKMA; That's correct.
MR. LOWE:  And I think rather than state what is in evidence and not, can we state that K12 is not presently in evidence?
MR. SIKMA:  That's correct.
Q  (By Mr. Lowe) I now show you Government Exhibit 33-1. As I understand you testimony, this weapon was the Rugger .44 carbine found at Al Runnings and that you linked up the various cartridge casings shown on this chart positively to this weapon by various microscopic markings or scratches, is that correct?
A  That's correct.
Q  Now in addition to that you identified the copper jacket Q 1 which is Exhibit 33C and you made a positive identification of that?
A  Yes, sir.
Q  And also on 33F there were two bullet fragments which you made a positive identification on?
A  Yeah. I identified 33F, yes. It had been fired from 33A.
{3312}
Q  And as to 33J and 33K, down on the bottom of the chart, once again we have two bullet fragments that you cannot state were fired from 33A, can you?
A  That's correct.
Q  I assume, though you haven't said this, that you did not determine what exhibit numbers would be assigned to various items you examined or only assigned Q numbers or K numbers, is that correct?
A  Those are the only numbers I assigned; yes.
Q  And again did Mr. Sikma tell you to put 33K and 33J on this chart?
A  Yes, he did.
Q  And as to those fragments, I believe you said that they had 12 grooves, am I correct in remembering that?
A  Yes, sir.
Q  And as to those two exhibits, I trust that the only thing you can really say is that a 12 groove weapon of .44 caliber fired those fragments?
A  Yes, sir.
Q  Have you ever examined any statistics on all these various types of weapons to give any kind of an idea to the jury how many .44 Rugger carbines were produced by that manufacturer, for example, in order of magnitude?
A  No, sir. I have no idea. But the number is very large.
Q  And the same would be true of virtually all these other {3313} weapons, they're commercially produced in large numbers, whatever that number might be?
A  Yes, sir.
*Q  I now show you chart 31-1 -- excuse me, 34-1. Now this is the chart of the AR15 which is on the table right now which is Exhibit 34AA. This is a look alike for an AR15 component which is identified as Exhibit 34A, is that correct?
A  Yes, sir.
Q  First of all on 34C, on the chart, and on 34H on the chart, we have a similar situation that we did with 29 and 33, don't we, and that is you cannot link, you cannot say that those bullets were fired from 34A, can you?
A  No, sir, I cannot.
Q  And in fact there are a number of different weapons that might have fired that. First of all an M16, a 5.56 millimeter could have fired that, couldn't it?
A  Yes, sir.
Q  And, of course, then we have the .223 caliber AR15 could have fired those two bullets?
A  Yes, sir.
Q  And again the AR15 I presume you understand was manufactured in large numbers?
A  Yes. I believe it has been.
Q  And a .222 caliber Remington rifle could fire those two bullets, couldn't it?
{3314}
A  Yes, sir.
Q  And a .222 caliber Savage rifle could have fired them?
A  It's fairly common rifling. I believe it could have, yes, sir.
Q  And a 22-250 caliber Remington rifle could have?
A  Yes, sir.
Q  And a .225 caliber Winchester rifle could have?
A  Yes, sir.
Q  And there are a whole variety of center fire .22 caliber rifles that could have fired them also, isn't that true?
A  Yes.
Q  Did you prepare any chart of any of these weapons other than an AR15 to display Exhibit 34G and 34H for comparison or for display?
A  No, sir.
Q  Now as to these weapons, the only one that was actually identified in weapons that we have in evidence are, first of all, .223 we have, Exhibit 34A, and there is, I believe there are two .22 caliber weapons, is that correct, that you examined in this that are in exhibits now?
A  That are in exhibits. There is only one.
Q  I think Exhibit 41 is only one actually in.
A  I think that's true.
Q  As to other ones there, there were ammunition components covered and reported to you which you identified from various {3315} places in the Jumping Bull area which would have been able to have been fired in virtually any of these weapons, isn't that true?
A  There was some .222s that I recall and there was some 22-250s; yes, sir.
Q  Do you remember any .225s?
A  I don't remember any 225s.
Q  I don't recall seeing any.
There was a lot of .22 ammunition, wasn't there?
A  I believe there was.
Q  And obviously a lot of .223. So that it's not just idle speculation or guessing to say that it's possible that one of these weapons fire those bullets in the sense there are ammunition components that could have been used in a weapon and that weapon could have fired those bullets so there is more nexus than speculating that some hypothetical weapon could have fired those bullets, isn't there?
A  I don't know that I understand your question.
Q  What I'm getting at, if we just said you could have had a Winchester weapon fire those bullets, we don't have anything to suggest there was ever a Winchester .225 rifle in the Jumping Bull area that you're aware?
A  No, sir. There was no ammunition that I remember recovered of that caliber.
Q  That's not true of a 22-250 Remington rifle insofar as {3316} there was ammunition components and ammunition component, or more than one found in the Jumping Bull area which would be used in a Remington rifle?
A  Yes, sir.
Q  Now as to the 34G, am I correct that 34G and 34H could have been fired from the same weapon?
A  They could have been; yes.
Q  But you did not determine that they had been. It could have been they were also fired from separate weapons, isn't that true?
A  That could be; yes.
Q  And I believe the identification generally that you gave was that the bullets appeared to come from a .22 center fire rifle with six grooves with a right hand twist, am I correct?
A  Yes, sir.
Q  Now you indicated that, I believe, one or both of these was copper jacketed, am I correct about that?
A  Yes.
Q  And I think you alluded to the fact that .22 ammunition, you either said is not normally or normally is not copper jacketed and let me ask you this:  is any .22 caliber long rifle ammunition copper jacketed sold commercially?
A  Not sold commercially. There are some military but it's {3317} open based type of copper nose on it. I believe that may even be a collector's item now.
Q  I believe your report shows, I think there has been testimony that Exhibit 34H was recovered from the ground, that is, dug out of the surface of the ground, the earth, and I think that shows there, "from ground beneath bodies of Williams and Coler," and I will ask you whether you and under your supervision someone else tested those bullet fragments for the presence of blood.
A  I do not recall if we did or not.
Q  Do you recall whether you testified in an earlier proceeding in that regard?
A  No. I do not.
Q  All right. I'll try and find a reference for you later. I'm not going to take the time now.
I think you indicated that on the basis of your tests with the bolt and extractor from 34A which you inserted into another AR15, you determined that by hand extracting the cartridges you put extractor marks on which matched up with 34C, 34D and so forth, am I correct in how you did that?
A  No. I never conducted that test. I did not attempt to see whether or not I could reproduce those extractor marks by hand. It is theoretically possible for them to be regrooved by hand.
Q  Perhaps I misunderstood how you associated, let's say, {3318} the cartridges in 34C with Exhibit 34A. Just pick that for an example. I thought you --
A  Maybe I misunderstood your question. I thought you asked me if I had performed tests by trying to produce extractor marks by hand. I did not.
Q  You did it by firing?
A  By firing.
{3319}
Q  All right. Then maybe I misunderstood you. That's what I was trying to clear up.
The extracting marks you produced were produced by firing. Your testimony, I gather, is that if a .223 cartridge had been fired in Exhibit 34-A, it would have produced this kind of extractor mark or this identical extractor mark?
A  Yes, sir, that's my finding.
Q  That's what I wanted to be sure of. Now, as to Government Exhibit 34-B which is Q2628, will you check your laboratory report dated August 5, 1975, and tell me whether that cartridge casing is listed in there?
A  (Examining) That 34-B would not be listed in the August 5 report, no, sir.
Q  That was actually received by you on August 24, 1975, I believe you either testified, or it was the other batch?
A  Yes.
Q  And I ask you to look at your report, January 13, 1976, and first of all, turn to Page 3 of that report; and I call your attention to Q100 through 105 and Q130; and I ask you if those are not .223 caliber casings which were found by Special Agent Hughes?
A  Yes, sir.
Q  Does it indicate where he reported finding them?
A  Again in that group, I have it listed only "at scene", recovered at scene.
{3320}
Q  All right, and did you examine those seven .223 cartridge casings as a part of your examination?
A  Yes, I did.
Q  Were you able to associate it in any way or disassociate it in any way with Exhibit 34-A?
A  I was able to disassociate it with Exhibit 34-A.
Q  In other words, your test or your examination disclosed to you that those seven .223 cartridge casings could not have been fired from Exhibit 34-A, I gather?
A  That's correct.
Q  Did you ever -- when you received those cartridge casings -- let's use them as an example to bring something else out here -- when you got those, I gather you got them with a lot of other cartridge casings and perhaps some other items?
A  Yes, sir.
Q  Is there any rhyme or reason as to how you assigned Q numbers, as you pick them out of the box you just start sequentially numbering and listed them, or you do it in the order they are listed, for example, in the covering document?
A  We try to keep it as logical as possible. Group together items recovered together in a particular area, as much information as is given us.
In this particular case there was many submissions recovered from different areas by different people, in that one red trunk that I received from Cunningham, so that I just {3321} went through them as best I could trying to keep everything together as best I could, and listed them as the information was received with the items.
Q  And I gather that typically you would get those cartridge casings in a plastic bag of some sort with some piece of paper giving information as to where they were found, by whom, and with perhaps some initials of various people on them?
A  Yes.
Q  Do you know that was uniformally the practice that was followed with regard to Cartridge casings that you examined in this case that you received?
A  Sometimes there would be a slip of paper, sometimes there would be a copy of a green sheet setting out the items in this submission -- varied in the way they did it.
Q  In any event, where it was a piece of paper in the envelope with nine items, or whether it was a green sheet, I gather that as far as you are aware the document which identified the cartridge casing was prepared by the finder, is that your understanding?
A  That's my understanding.
Q  And in either event, the Special Agent who purported to be the finder would either sign or initial the green sheet, or would initial the piece of paper that was in the pouch with the cartridges?
A  Yes, sir, I think that's true in every instance here.
{3322}
Q  And would that have been the basis upon your listing then in your report as having been found by Special Agent Hughes at the scene?
A  Yes, sir, it did have his name on it.
Q  All right, and as far as you would be aware you have to rely on what Special Agent Hughes puts on that piece of paper when you write that report, you have no independent knowledge of where it was found?
A  I rely on the piece of paper as far as the location of where they were recoved and who recovered it, yes, sir.
Q  All right. You say "and who recovered it"?
A  Yes.
Q  Yes. Do your notes indicate when you received either those notes or the report, or any of your worksheets or anything that you have with you indicate whether you received those cartridge casings with a green sheet as opposed to a piece of paper in the envelope, is there any way you have of determining that now as you sit there?
A  No, sir, not to the best of my recollection.
Q  All right. Now, I call your attention to your report of -- excuse me.
MR. LOWE:  Before I move off on that, could I have a moment, your Honor?
(Counsel confer.)
Q  (By Mr. Lowe) I show you what has been marked but not {3323} admitted into evidence yet as Plaintiff's Exhibit 177, and ask you if you are familiar with that document, and if you will just state what it is?
A  Yes, sir. This is a copy of one of the Bureau green sheets, and this is the -- these are the Q numbers which I wrote on the outside as I received the evidence and inventoried it.
Q  And who prepared that green sheet?
A  It bears the name, Dean Howard Hughes.
Q  Are those Q numbers, can you identify your own handwriting, did you put them on?
A  Either myself or my assistant put those on.
Q  Can you state the item numbers for Q100 through 105 and Q130?
A  Yes, sir. 100 through 105 is Item 13 and Q130 is Item 17.
Q  Now, on Item 13, you have Q100 through 105; and am I reading correctly that Item 13 says:  5.56 millimeter Lake City cartridge case?
A  That's what it says, yes, sir.
MR. LOWE:  Thank you. Excuse me a moment.
(Counsel confer.)
Q  (By Mr. Lowe) Now, I call your attention to your February 10, 1976, laboratory report, and ask you to look at, first of all, Page 7 and look at Q2513 through 2519; and I ask you if that does not relate to seven .223 caliber cartridge {3324} casings?
A  Yes, it does.
Q  And I ask you now to turn to Page 15 of that same report and ask you if you were not able to examine those and determine that they were not ejected from Government Exhibit 34-A?
A  (Examining).
Q  Is that correct -- I believe it is on Page 15 that you determined that those cartridge casings, 2513 through 2519, were not ejected from 34-A?
A  That's correct.
Q  And that was not to say that there were insufficient markings -- I think some of your other identification say insufficient markings, but you actually could specifically eliminate those from 34-A, couldn't you?
A  Yes, I could.
Q  And those all have the same markings within themselves, so that they were all fired by the same or ejected by the same weapon, weren't they?
A  That I don't know. I don't list that. I did not state that they didn't have any marks of value on them so --
Q  All right, fine; but in any event, the markings they had on them showed you they were not ejected from 34-A?
A  Yes, sir.
Q  You said that only the AR-15 and the M-16 fired .223 caliber ammunition; and I ask you whether you have ever heard {3325} of a weapon that might be called the Maxi-14?
A  I don't recall ever saying, sir, that only the AR-15 and M-16 fired .223 ammunition.
Q  Maybe I misunderstood you.
Let me ask you what weapons other than the M-16 and AR-15 fire .223 caliber?
A  Remington makes a bolt action rifle which fires that caliber ammunition. Ruger makes the Mini-14 which fires that ammunition and there may be others.
Q  Mini-14 is it called?
A  Mini -- (spelling) M-i-n-i.
Q  I must have it backwards, Mini and Maxi.
And is there -- well, that answers my question.
If you reload a .22 caliber long rifle cartridge case, let's say, is it possible to reload a .22 long rifle cartridge case with a bullet that is designed to be reloaded in a .223 cartridge case?
A  I have never heard of anybody reloading a .22 long rifle cartridge case because of the priming problem. Priming is put in in a moist condition and the cartridge case is spun to get the priming into the rim, and this is not a technique available or readily adapted to individual reproduction.
Q  Fine. Now, I want to talk a little bit with you about your ejection test that you described. Do you have that Exhibit 34-I, have 34-I, the ejection pattern up there?
{3326}
A  Yes, sir, I do.
Q  May I just see it?
Now, as I understand Exhibit 34-I, you made the test in two different ways:  First you took the AR-15 and you fired at your shoulder, something similar to this (indicating), with the weapon roughly parallel to the ground and with the axis of the weapon roughly vertical, that is, it wasn't turned like this (indicating) or something like that, for most of your ejection pattern test, am I correct on that?
A  Yes.
Q  The other way you did it was at the hip firing where it was fired again parallel to the ground and approximately in the verticle plane and made tests on that basis?
A  Yes, sir.
Q  And you did this with two AR-15's?
A  With --
Q  (Interrupting) And with three M-16's?
A  Yes, sir.
Q  And you used commercial and military ammunition?
A  Yes.
Q  And as I understand, you made no tests in which you fired the weapon down, anywhere from 10 degrees to 45 degrees from the horizontal, am I correct about that?
A  That's correct.
Q  And similarly you didn't fire up, you were all at parallel -- {3327} or at horizontal, I should say?
A  Yes.
Q  All right. Now, in doing that, first of all, did you actually do the firing -- I think you said an assistant did the firing?
A  I had an assistant do the firing, and I watched the cartridge cases.
Q  Now, as the cartridges go out of this weapon, you have got a little door here that springs open, and I believe stays open until you close it manually, is that correct?
A  That's correct.
Q  That's this little door right here (indicating), that flaps open, and the bolt, I think, opens it the first time when you fire?
A  Yes. To load the cartridge into the chamber, you have to pull back on that lever which is held back by the plastic tape, and that will open the ejection port.
Q  And as the weapon fires, it ejects them; and I believe you said that they come out approximately horizontally and then drop off by gravity pull?
A  Yes, sir, very little rise to them.
Q  And as you get a given force, let's say a force of a certain "X" pounds per square foot or whatever it might be, that cartridge will go out and land at a certain distance away in some direction or another, depending on how high the weapon {3328} is; if I hold the weapon up here (indicating), obviously it has greater distance for the trajectory to go, it would land farther away?
A  Yes.
Q  If I held it right down to the ground, you would expect the impact much further in?
A  Yes.
Q  So the height of the person firing the weapon from the shoulder would determine to a certain extent how far those cartridges went?
A  Yes.
Q  Not only the person, but the height at which he held it when he shot it would make a difference how far the cartridges went, would that be correct?
A  A slight difference, yes.
Q  All right. In addition, in making a test, are you willing to stipulate that I am not an artist?
A  Yes, sir.
Q  I am willing to stipulate that, and I think that's there for everybody to see. We don't need an expert for that.
If you fire on the horizontal and the cartridges come a certain distance, if you fired down some of those cartridges might loop up slightly because of the fact, if they are coming out to the back, that they are actually being aimed up a little bit when your rifle is pointing down, isn't that true; those {3329} cartridges that might be thrown rearward?
A  Yes. Cartridges thrown to the back would be.
Q  A little farther?
A  More up in the air, yes, sir.
Q  And similarly, if you rotate the gun on its axis, that is to say, instead of being exactly vertical, if somebody were firing at a slight angle like that (indicating), they would loft a little bit and they might go a little farther then also?
A  They would go a little bit further also, I would assume, as long as you didn't get it past the optimum angle at which they would go short.
Q  So when you really analyze what we are talking about here in terms of a car trunk -- and I presume that's what your testimony is aimed toward -- if we use this as the depiction of an automobile with the two headlights at the front -- this being further evidence that I am not an artist -- that you determined or tried to determine a pattern in which these cartridges might fall, to try and determine where a person standing and firing that weapon might be when a cartridge landed in the trunk, isn't that essentially what you were aiming at with your evidence?
A  I think that would be a very general statement. I was actually trying to determine how far this particular type of weapon in general would eject a cartridge case.
Q  And in fact on Exhibit 31 -- this being a copy of it, I {3330} represent this is a slide copy of that, correctly -- this being on the shoulder form, you came up with a pattern of various rounds which ranged from forward to backwards, to the side and in close and out far, but which had one common characteristic, didn't they, and that was that you were able to project approximately a 120 degree angle in which all of your rounds on those five weapons fired?
A  Yes, sir.
Q  And you have no way of knowing whether another AR-15 might fire rounds down in or expend cartridges down in this area (indicating), or up in this area (indicating), until you actually test the AR-15, isn't that correct?
A  I would assume that there would be other AR-15's which would leave that pattern to a certain extent, with the small variations, yes, sir.
Q  All right, and you had a similar pattern -- not similar pattern, but you ran a similar test and made a pattern of the hip position and came up with a similar kind of a pattern which again was about 120 degrees, interior angle in here (indicating), didn't you?
A  Yes, sir.
{3331}
Q  But as to the actual location of these rounds landing, one weapon -- I'll give you your exhibit so you can refer to it in case you don't recognize right on it, one weapon fired all of its rounds and expended the cartridges out on the right and to the front which I have marked in blue, didn't it?
A  The number 1 weapon, all right. Now, we're talking about the hip position?
Q  Yes.
A  Yes. Well, the area, no, because some of those weapons, some of those cases were ejected backward, too. That is a blue area there.
Q  So in other words that one weapon ejected in two places, forward and to the right, and rear to the left and slightly to the rear and to the left?
A  Yes. Threw some ahead and some behind.
Q  And other weapon ejected in what I have marked as red; is that, am I correct that that's one weapon?
A  Yes, sir. That's the number 2 weapon.
Q  And as to any given AR-15, including AR-15 designated Exhibit 34-A, I would be fair in stating that you have no idea where it might land in relation to any of these shots or in other places except that it would be generally to the right of that weapon since the portal is on the right side; isn't that really true?
A  I would expect it to throw the cartridges cases to the right.
{3332}
I would not expect it to exceed in distance greatly any of the distances, maximum distances that I fired in, or observed from firing the five other weapons.
Q  And these patterns that you've shown here are based on all of the givens that we've discussed; and if you were aiming it down or turning it sideways or if ammunition were hand loaded or any number of variables you might even get with these weapons, you might get a --
A  You might add or take off a foot or two on the maximum distance, yes, sir.
Q  And in fact on this weapon, which I think you said in number 1 which I've marked in blue, how many shots did you fire?
A  On the number 1 weapon I fired twenty shots.
Q  If you had fired eighty more and made a hundred, you have no way of knowing whether they might have landed in this area in here or up here or up here or out here, or where they might have landed, do you?
A  I'm sure that the pattern would be expanded to some extent just by the random nature of the pattern that we have here.
Q  So would it be fair to summarize your testimony by what you just said that the AR-15's that you tested ejected rounds in a random manner without any substantial pattern that you would identify with certainty?
A  Well, I couldn't identify -- this is not what I would consider an identifiable property as to where the gun ejects a particular {3333} cartridge case.
Again in general my findings were that they, different guns would eject it and sometimes fore and some aft. It was quite a variation. I would expect another AR-15 to have a similar property in that it would eject it somewhere within a twenty foot area and within the 120 degree angle. But it may vary a few degrees one way or another, or a few feet one way or another.
Q  Now, looking at your chart, let's take first of all your hip chart. I portrayed a car here and I've outlined in purple an approximate area of the trunk of the car. And I've got here another exhibition of my lack of artistic ability which depicts a rifle and I've tried to show which end is the butt and which end is the muzzle. So that's the muzzle end (indicating), and this is the stock end back here, and I've drawn, by superimposing this sketch on your sketch, I've drawn the red lines to coincide with the 120 degree sector that you have found in your experiments so that that would represent the sector to the right of the gun from in which you experienced some cartridge cases falling when they were ejected. And I will ask you, based on your results, and I will let you look there for specific rounds, were there rounds fired which would enable a person to be standing to the rear and somewhat to the right of this automobile and still have a round eject from this AR-15 into the trunk of the car?
{3334}
A  Yes, sir.
Q  And would there be some rounds shown which would enable somebody to be standing to the rear and to the left of the car and to fire that weapon and have it eject the cartridge to the rear and drop in the trunk?
A  Yes.
Q  And that would be with the weapon there shooting away from the car, wouldn't it, in that instance?
A  In that instance, yes.
Q  And in fact you could put this in an almost infinite variety of positions:  To the rear of the car, to the right of car, to the left of the car firing away from the car and in other places where it's conceivable that a round ejected would have fallen into the trunk of Coler's automobile?
A  Yes, sir.
Q  And the only thing you can say is that based on the twenty shots you fired from each of five weapons in each position that your experiments showed that those particular combinations were possible, and that you don't know what other combinations might have been possible?
A  Well, I can think, I can testify confidently that it does not throw the cartridge case to the left of the gun.
Q  I'll stipulate to that.
A  And that my experiment again is generally, only in that we have these limits set up under my observation, and that again {3335} there could be minor variations on these, yes, sir.
Q  Now, without going into all of the details or looking at all of the pages in your reports, am I correct in saying that in various parts of Jumping Bull area you had other cartridge casings of .223 caliber or 5.56 millimeter submitted to you which you were able to link up as positively having been extracted from Exhibit 34-A?
A  Yes.
Q  In other words, you didn't even attempt to depict all of the other cartridge casings which were found to have been extracted from there, but rather only those that Mr. Sikma asked you depict?
A  That's correct.
Q  And many of these, a lot of them were found in the Tent City area, weren't they, according to the reports you received?
A  Yes, sir.
Q  And weren't there also a lot of .223 and 5.56 millimeter cartridge casings for which there were insufficient marks for you to make an identification to weapon 34-A or any other weapon?
A  There were not a lot. There were some.
Q  All right. And as to the materials that were submitted to you, based on the seizures at Al Running's, and I believe you've already identified on a number of these charts cartridge casings and components which came from Al Running's. Referring {3336} specifically to your report of 12, that is, December 4, 1975, there were a number of .223 cartridge casings found at Al Running's, weren't there?
A  I'll have to check that report, sir.
Q  All right. You can just look.
A  I don't remember.
Q  Just generally, I think you'll find that if you look at that report, I can give you some Q numbers, but you can probably spot it very quickly that there were .223 cartridge casings found.
A  Are we talking about unfired or fired here?
Q  I'm talking about first of all there were a lot of unfired cartridges there, weren't there, .223?
A  As I recall the significant part of that submission was unfired.
Q  Okay. Now --
A  Q707 through Q17 -- I 'm sorry, 979, those are .223. But they are all unfired.
Q  Right, okay. I think I already said this, but if I didn't, 34-G and 34-H are similar to the other charts in that you cannot identify them to 34-A, did you say that?
A  Yes, sir.
Q  All right. I now show you chart 35-1. I believe your testimony was that this weapon which is identifiable as Special Agent Coler's was positively identified to two .38 Special {3337} cartridge cases, 35-B and 35-G found on the front seat of Coler's car and identified on the chart; is that correct?
A  Yes, sir.
Q  And there were also six cartridge casings found at Al Running's, and you previously identified those as having been found in the same bag as six cartridge casings from Exhibit 31-A if I have the numbers right. That is from Williams' .357?
A  Yes.
Q  Does your report indicate the name of the finder of any of these items, or do you simply have who sent them to you in your report now?
A  I don't believe it does indicate the name of the finder, sir, no.
Q  Okay. And these are the only .38 Special cartridge casings which you were able to identify to Exhibit 35 -- excuse me, I may have missed 35-F, which were six that were found in a Plymouth station wagon in Oregon. That's on the bottom of your chart.
A  Yes.
Q  Now, would these thirteen -- excuse me, fourteen cartridge casings the only ones that you were able to identify with Exhibit 35-A?
A  Yes, sir.
Q  You identified Exhibit 36-1 and gave some testimony about the Remington 870 shotgun. It's a 12 gauge shotgun which was {3338} property of Special Agent Coler and you identified on cartridge casing that was expended. Were you able to determine from the various ammunition components you examined what kind of shotgun shell load were contained in the shotgun shells that are associated with that weapon on June 26th?
A  I don't recall. If I can answer that question by referring to my notes.
Q  Well, this is Q342 in your August 5th report. I don't know if you have some notes other than that.
A  Yes. I have that information with me.
Q  Could you check your notes.
A  Yes. Q342 is double aught buck load shell shot.
Q  Did you receive any other ammunition components, that is, unexpended live rounds relating to the Jumping Bull area as a part of your investigation in this case?
A  Shot shell?
Q  Yes. Shotgun shells.
A  I believe I did, yes.
Q  Do you know what they were? Were they also double aught buckshot?
A  There was a Q348 which was a double aught buck load which had been fired into those. It was ruptured. That was another.
Q  Well, let me ask you this:  Is that a fairly standard type of shotgun load for an FBI agent to use in a shotgun?
A  Yes, sir.
{3339}
Q  That's all I need on that.
I show you Exhibit 41-1 and I believe you testified that this was a .22 caliber rifle which was associated with 41-B which was found near the white house, and I ask you whether there was not another cartridge casing which you also associated with that weapon, namely Q2537 from your February 10, 1976 laboratory report?
A  Yes, sir.
Q  And does your report show where that was reportedly found?
A  From near this log house.
Q  Let's talk about .22 for the moment. You made a statement yesterday that the diameter of a .22 bullet -- do you remember being asked about that, and I believe you said that the diameter of a bullet, of a .22 bullet is from .221 to .224 thousandths of an inch. Isn't that what you said?
A  Yes, sir. That's the general range for a .22 caliber bullet, sir.
Q  I'm not trying to pick up or nit-pick with you, but I don't want to confuse anybody. What you really mean is that it is from .221 inches to .224 inches, or from 222 thousandths to 224 thousandths of an inch; isn't that correct?
A  Correct, yes, sir.
Q  All right. I now show you Exhibit 69-1 and I believe you testified that this was a .303 British rifle and that you had made a positive identification with Exhibit 69-B, C, D and {3340} E and excluded those as being fired from that weapon and none other; am I correct about that?
A  Yes, sir.
Q  Call your attention to your laboratory report, February 10, 1976. If you'll look at page 9 first of all, and I ask you to look at Q2558 and tell us whether that is a .303 cartridge casing?
A  Yes, it is.
Q  And does your report indicate where it was found?
A  It indicates that 2558 was, well, it's on another page, I'm not sure if it's a continuation of the heading. It indicates that it was found from residence believed to be that of Joanne LeDou.
MR. LOWE:  Can we stipulate as to which residence that's referred to?
MR. SIKMA:  Yes.
MR. LOWE:  The tan and red house.
MR. SIKMA:  The tan and red house.
Q  (By Mr. Lowe) All right. And I call your attention to page 18 of that report. If you'll look at that and see whether it does not reflect that you were able to make a comparison between Q2558 and a weapon?
A  Yes, sir.
Q  And which weapon did you positively link it to?
A  69-A.
{3341}
Q  And it doesn't show on the chart, though, does it?
A  No, sir, it does not.
Q  And I assume Mr. Sikma did not ask you to put it on that chart?
A  No, he did not.
Q  Now I call your attention to your January 13, 1976 report, if you'll look at that at page 9. I ask you if there is a weapon listed there K6 which is a .303 rifle, SMLE British?
A  Yes, sir.
Q  Now that is not 69A, is it?
A  No, sir, it is not.
Q  It's a different weapon. Where does it reflect that weapon was found?
A  Tent city.
Q  And that would fire a .303 ammunition similar to the ammunition fired in 69A, would it not?
A  Yes, sir.
MR. LOWE:  Excuse me, Your Honor.
Q  (By Mr. Lowe) I show you Defendant's Exhibit 135 which has been previously discussed and identified. I don't believe it's in evidence yet, am I correct, Mr. Clerk?
THE CLERK:  135 is not in evidence.
Q  (By Mr. Lowe) And ask you if that is a document which you {3342} can identify?
A  Yes, sir.
Q  What is the document?
A  It is laboratory reports which I issued.
Q  What date?
A  On the 31st of October, 1975.
Q  And does that refer to K40 which is known as Exhibit 34A in this proceeding?
A  Yes, it does.
Q  I show you what has been marked for identification as Defendant's Exhibit 182 and ask if this is a document which you're familiar with and can identify?
A  Yes, sir.
Q  Would you just state generally what it purports to be, what it is?
A  This is a laboratory report on the results of hair and fiber examination conducted by Special Agent Byron D. Schulberg.
Q  Is that a report which is issued from your laboratory?
A  Yes, sir.
Q  Is that a report which is kept in the ordinary course of business as part of the laboratory --
A  Yes, sir.
Q  I gather you're familiar with this document, you've seen it before?
A  I'm the one that issued it out of the laboratory.
{3343}
Q  Do you know from your recollection or can you tell from your notes what K74 is, the item that was tested or from which the hair samples were obtained?
A  Well, this K --
Q  K74 is a hair sample itself or was that the item from which the hair sample was taken?
A  It looks like a non-head hair sample taken from the individual.
Q  Thank you.
Q  In connection with extradition proceedings in Canada through which the federal government was trying to extradite Leonard Peltier, did there come a time when you made out or signed, I should say, an affidavit with regard to some of the findings that you made in this examination?
A  Twice.
Q  Twice.
And I gather you signed one affidavit and then at a later time signed another affidavit?
A  Yes, sir.
Q  And I gather there were some differences between the two and that was one reason why --
A  I don't know.
Q  Now as to all of your reports that you did in conjunction with this test or this examination, and I want to make specific reference to several of them, I referred to the August 5, 1975 {3344} report and referred to the October 31, 1970 report which is marked as Defendant's Exhibit 135 and as to the December 4, 1975 report, the January 13, 1976 report, the January 16, 1976 report, the February 4, 1976 report and the February 10, 1976 report. Were these all prepared either by you or under your direct supervision and issued under your authority out of the firearms laboratory in conjunction with reporting findings that you had made as a part of your examination in this case?
MR. SIKMA:  Your Honor, may we approach the bench?
THE COURT:  Have you answered the question?
MR. LOWE:  Is there an objection to that question?
MR. SIKMA:  Yes, Your Honor. I'd object. It's totally irrelevant.
THE COURT:  You may approach the bench.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE:  I have a suggestion. We're getting close to lunch.
MR. SIKMA:  I want to go on. We have got this witness on the stand and he's got other cases to do in Washington, D.C.
MR. LOWE:  Why don't you let me finish my sentence.
We have got six minutes to lunch. What I'm doing by this, as I'm sure Your Honor knows, and Mr. Sikma knows, I'm {3345} going to lay full, thorough, proper legal foundation for introducing these reports.
Now obviously I must ask certain foundation questions in order to, and in order to make my record. It may be best if Your Honor wants to go ahead and excuse the jury five minutes early for lunch for us to do this in voir dire type of fashion to make any record and to convince Your Honor that they should be admitted properly rather than hold the jury here and try and do it at side bar.
There is going to be a lot of discussion, there are a lot of reports. It's not a convenient place for Counsel to refer to these reports and perhaps you'd like to look at some of them.
I am at that point where I want to do that. Within the next five minutes or so I will be offering them and I'm sure there will be objections, we know, from history on this case.
MR. SIKMA:  I would submit, Your Honor, under no circumstances would these reports in their totality be admissible. They would be meaningless to the jury. They would be completely confusing. They refer to approximately 3,000 items examined by this witness and others in the laboratory and they're kept for the purpose of discovery of relevant information for the government and they have been provided to the defense. But that does not make them {3346} admissible.
All of these items have not been discussed on direct examination. Only those items which have been discussed on direct examination or which are of impeaching nature would be admissible in this case and I would say that establishing a foundation because of the intent to introduce them apparently not to impeach, apparently to be used simply to confuse the jury. They could not be used as suggestions of evidence presented in proper testimony, I believe, as Your Honor ruled yesterday. Therefore, I would vigorously object to even wasting the time of going through, laying the foundation for these items if they are going to be offered into evidence in their totality.
I would submit that it would take hours of time of careful instructions to teach the jury to understand what these mean.
I will say further that they would be totally irrelevant to the issues in this case.
THE COURT:  For what purpose --
MR. LOWE:  All I would like is an opportunity to lay foundation upon which I can base a proper argument to Your Honor. I don't have enough right now to do that, that's why I think at this point it's difficult to particularly do that at side bar without the documents to actually look at.
We have got about four minutes to lunchtime. I {3347} suggest we discuss it at lunch now or when we come back from lunch take the matter up out of the presence of the jury. This is an important aspect of our case. Obviously, we're talking about the identification of rounds which the government will argue tends to show Mr. Peltier was involved and they're entitled to two things in general, Your Honor. I'll leave it at that for the moment. One, to show what weapons and weapon components give rise to reasonable hypothetical of innocence of Mr. Peltier. That is, they show the presence of other weapons and other persons who could have been the persons who killed the agents and we have a number of such components which have already been testified to and I want, I have other questions to ask before I finish with this witness to show the presence of other such components.
The second is to show there are components here which have not been identified to Mr. Peltier and which are specifically excluded from weapons he purportedly had in his possession.
I would also want to show the exhaustiveness of the examination conducted by the FBI and by the firearms people so that there can be no thought on the jurors' part that this was somehow just a reasonably good effort but not a real exhaustive effort because there are some significant items of evidence which are not present in this case which have {3348} never purportedly been found as far as we have disclosed which we think we're satisfied to argue inferences from.
There was an absence of evidence in a document. As a matter of fact, it specifically recognized in Rule 803 that a document can be shown, a business record can be introduced for the purpose of showing the nonrecordation of information. That's a specific separate item and we want to introduce these laboratory reports in some instances to show the nonrecordation of evidence.
I would want to have the opportunity to lay a more proper foundation before making specific argument. Of course, I could make an offer of proof but I think I should not be interrupted at this point when I'm making proper questions, proper foundation regarding these documents.
MR. SIKMA:  I would say it would be another thing, Counsel I think is very deceitful in this respect. He's left out the report which refers to Government Exhibit 34B. He goes up, takes all the reports up to that date and then carefully leaves out the report where 34B is identified.
MR. LOWE:  I don't think that's true. I think it may be identified in more than one report but I believe it's identified in one of the reports I listed. It is identified as having been sent to Washington in an earlier report. But it is not the only report of its examination and on February, I think it's February, subsequent to February 14. I think {3349} it's February 10, isn't it? That's when I thought it was. I'm not trying to eliminate that.
MR. SIKMA:  February 14 I think.
But at any rate I would state this is a total waste of time. We would if Counsel wants to bring out something, perhaps we can stipulate to it, that there were a lot of other items which were examined which weren't connected with this defendant. We agreed to that. But just to take time to establish a foundation which I assume is a similar foundation to all of the laboratory examinations, finders of items, would be meaningless for the jury to examine these items and we vigorously oppose it.
MR. LOWE:  Judge, as I understand the objection right now is to my asking questions, not to introducing the exhibits. I have been stopped at this point from asking perfectly proper questions and secondarily to that for laying a foundation for introducing, for example --
THE COURT:  You haven't been stopped.
MR. LOWE:  I mean I have been interrupted.
THE COURT:  Very well.
MR. LOWE:  The pending question is whether I will be stopped.
THE COURT:  We'll go into this out of the presence of the jury at 1:30.
{3350}
MR. LOWE:  Thank you, Your Honor.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
THE COURT:  The Court is in recess until 1:30.
(Recess taken.)

Q  (By Mr. Lowe) As to the exhibits before you at this time, when you made the reports, prepared them, were they accurate and correct as you could humanly make them based on your careful preparation, on your own examination and on information given to you by your fellow workers?
A  Yes, sir. In that these reports are continuing series of examinations of items and each one is as accurate as I could be as far as I went at that time.
MR. LOWE:  Thank you. That's all the questions I have, Your Honor.

REDIRECT EXAMINATION BY MR. SIKMA:
Q  I would direct your attention to Government Exhibit 29-1. You testified that Government Exhibit 29C, in Coler's car, 29F from Williams' car, could have been fired from a number of different weapons, is that a correct statement?
A  Yes, sir.
Q  Now is there any question at all in your mind that they also could have been fired from Government Exhibit 29A?
A  No.
Q  During the course of your examination in these matters, you referred to -- do you have 177?
Do you have Plaintiff's Exhibit 177 there?
Plaintiff's Exhibit 177 for identification. I direct your attention to numbers on there. No. 13 and No. 17.
{3385}
Do you recognize those particular notations and handwriting alongside of those items?
A  Yes, sir.
Q  And those are Q numbers. What Q numbers do those refer to?
A  Q 100 to 105 and Q 130.
Q  Now do you know or do you remember where those particular 5.56 millimeter cartridge casings were manufactured?
A  Yes, sir. They bear the Lake City Arsenal head stamp.
Q  Now do you know whether or not the Federal Bureau of Investigation gets its ammunition from Lake City Arsenal?
A  Not directly, sir. We get it from the Department of Defense.
Q  Now Lake City Arsenal, what kind of a company is that?
A  It's a governmental run ammunition manufacturing plant.
Q  Are you familiar with any, with what kind of, or where the FBI agents get ammunition to be fired specifically from the AR15 or M16 as its militarily --
MR. LOWE:  Objection, Your Honor. It's been asked and answered. Asked on direct examination.
MR. SIKMA:  Counsel went into it on cross-examination.
MR. LOWE:  It doesn't change the fact that the question has been asked and answered.
THE COURT:  I don't recall. You concede it has been asked and answered?
{3386}
MR. SIKMA:  Not precisely; no, Your Honor. I would state, Your Honor, that the exact question has not been asked and answered. I asked him a general question, now I'm referring to specific items.
THE COURT:  You may answer the question.
A  The ammunition is sent out from the FBI headquarters to the various field offices. That is where the field offices get the ammunition from.
Q  (By Mr. Sikma) And where does that ammunition come from?
A  The headquarters gets it from the Department of Defense for the AR, the M16.
Q  And are there any instructions that go with that issue of that kind of ammunition?
A  The agents are instructed in the use of the M16 rifle.
Q  Are they instructed as to what kind of ammunition to use under normal circumstances?
A  Yes, sir.
Q  And what kind is that?
A  The military full jacketed 55 grain bullet cartridge.
Q  Now with regard to Government Exhibit 177, that lists a number of items. Who found those ticket items, if you can tell from Government Exhibit 177?
A  The exhibit has the name Dean Howard Hughes, SA Dean Howard Hughes as the recovering agent.
Q  And how many rounds did you find when you received those {3387} rounds in the items that you received?
A  Are you referring to items 13 and 17 or the whole list?
Q  What's that?
A  Are you referring to items 13 and 17 or the whole list?
Q  Yes. 13 and 17.
A  That consists of seven rounds, I believe.
MR. SIKMA:  Do you have 185 and 186 for identification?
THE CLERK:  That should be up there, too.
{3388}
Q  Now, I would direct your attention to Government Exhibit 34-1, and particularly to 34-B, from the trunk of Coler's car, do you remember when it was approximately that you began to examine that particular item along with other items in the shipment of items with which it came to Washington?
A  Yes. It was about the end of 1975, beginning of 1976; January, December, in that area.
Q  December or January, somewhere in that area?
A  In that area.
Q  Now, prior to that time had you assigned
Q  numbers to those items?
A  Yes, sir. The items had been inventoried, but I had not begun an examination.
Q  During the course of your examination did you examine any .222 caliber Remington rifles in relation to this case?
A  No, I did not.
Q  How about .222 caliber Savage rifle?
A  No, sir.
Q  How about 22-250 Remington rifle?
A  No.
Q  Did you examine any .225 caliber Winchester rifles?
A  No, I did not.
Q  Now, with regard to Government Exhibits 34-G and 34.H, could they have been fired from Government Exhibit 41-A?
A  No, sir, they could not have been.
{3389}
Q  There is no question about that in your mind?
A  No, none.
Q  Could they have been fired -- is there any question in your mind as to whether or not they could have been fired from Government Exhibit 34-A?
A  No, sir. They could have been fired from that weapon.
MR. SIKMA:  I have no further questions.
MR. LOWE:  May I have just a moment, your Honor?
THE COURT:  You may.

RECROSS EXAMINATION By MR. LOWE:
Q  Do you have the January 13 report there in front of you? I don't know what the exhibit number on that is.
187. Now, I show you Defendant's Exhibit 187 which is a laboratory report dated January 13, 1976, approximately six and a half months after this incident; and I call your attention to Page 3 whereon is shown Q100 to 105 which is listed as six 5.56 millimeter cartridge cases, and Q130 which lists a 5.56 millimeter cartridge case, which Mr. Sikma asked you about and you indicated they were Lake City Arsenal cases.
Do you find this anywhere in that report that these were Lake City Arsenal casings?
You can take a moment and look. I don't mean to have you answer off the top of your head.
A  I think for these items I would have to refer to the report {3390} of August 5.
Q  Refer to any report you want. I didn't mean to limit you to any one.
Can you find any report that says that they are Lake City Arsenal casings?
A  Let me check and see whether I did set that out in a report or not. (Examining) I did not mention in the report the manufacturer of those items.
Q  Back in 1975, let's say from June of 1975 and later, did you know this information that you have just imparted to us, that Lake City Arsenal casings are military casings; and that then you, I assume, associated those with military or FBI use?
A  Did I? Yes, sir, I believe.
Q  You knew that fact then?
A  I don't think I understand. I knew that Lake City Arsenal made cartridges for the military.
Q  Well, if you receive a .223 cartridge then in the process of going through a whole lot of cartridge casings, I gather from what you say as an expert it calls your attention to the probability that that was not fired by a civilian, is that the substance of what you would say?
A  I don't think I would give it that much credibility, as to whether it was fired by a civilian or not, as this ammunition is not all that restricted as far as I know. I mean, I didn't pay that much attention to it.
{3391}
Q  Do you know of any arsenals that sell to civilians?
A  No, I do not.
Q  In your experience isn't it true that arsenals don't sell to civilians?
A  Yes. However surplus ammunition is at times put on the commercial market so -- I don't give it that much weight or credibility.
Q  So you didn't even make a notation that this might be Government issue or might relate to FBI weapons fired at the time or anything to even raise that question in any of your reports, as far as you remember?
A  I did not specifically mention that, no, sir.
Q  Now, I am looking at Government Exhibit 177, and Item 13 contains a handwritten notation, Q100-105, with an arrow which I understand you identify as being made either by you or by one of your associates?
A  Yes, sir, we marked that.
Q  Did you carefully read the items on here to see whether they matched up with the items that you were receiving along with the green sheet at the time you received them?
A  Yes. To the best of our ability we correlated all the items.
Q  And in any instance when you do not find all of the items listed or if you find an excess of items, do you make a report or a notation of some sort to the effect that the transmitting {3392} document was not accurate?
A  It depends on the nature of the mistake. If it is -- if I find more items than I supposed to, generally I don't get too alarmed about it. It is when I am missing items, then I will start to wonder what is going on.
Q  So you wouldn't find it unusual that an FBI Agent, trained in evidence collection, would say "5.56 millimeter Lake City cartridge case -- singular -- and that you would find six cartridge cases to associate with that item?
A  I don't find it unusual in the sense that it could just be a typographical error, in that the steno left off the "s" on the end of "case".
Q  I ask you to look at the other items on there. In every case where there was more than one case, whether or not it states in the first word of the description the number of cartridge cases, two cartridge cases, five cartridge cases?
A  (Examining).
Q  Isn't that the general pattern there?
A  Yes.
Q  This stenographer not only forgot the "s" but also forgot to put the word "six" in in order for that to be a stenographic error?
A  If the agent had it written in there, yes, sir.
MR. LOWE:  No further questions, your Honor.
Could we approach the bench for a moment?
{3393}
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE:  If your Honor rules against the admission of those documents there are certainly parts of them that at the very least or perhaps substantially all of -- some of them that I would want to read to the witness or have the witness's read or in some way introduce testimony. That would be excruciatingly time consuming, but it would be important. That's one of the reasons we feel the document would be admissible.
As I stated I would not want to do that unnecessarily What I would like to do is conclude my cross examination subject to recall if it becomes necessary because the Court rules those documents are not admissible. Otherwise I would be forced to simply proceed at this time, and I would rather not do that. It would be quite time-consuming.
MR. SIKMA:  Your Honor, I use the word cautiously, but I think they are using that as blackmail when they say we will have to go into these or we will have to hold up this Government witness. I think that the Defendants have had available an expert who examined absolutely every question that the Government had presented to the Defendant is in discovery. Every single item that this witness examined was examined by a man who is a firearms expert, who worked {3394} for the Defendant, and apparently they could call him and make the same questions, same examinations; and I think that would be a fair way to approach it rather than to require this witness to stay around.
If the Court allows these documents in and if counsel wants certain particular items in, that's another question; but to say that if they all dolt get in, at this time this witness should be held up. I would say that's totally unfair to the Government and to this witness in addition.
~MR. LOWE:  Judge, that's not what I am saying. Let me clear up the record. Mr. Sikma once again is having flashbacks to last summer. There was a witness whose name was Dr. Nichol -- (spelling) N-i-c-h-o-l -- I am not positive, I didn't deal with him myself very much. He was a witness. He was called as a defense expert. He did some examinations. He is not available to us this year, and in fact I have it on good information that there was some mix-up on his CJA. He never got paid or was paid very, very, very little for what he did. He was quite upset, and I believe he has refused to have any further dealings with us because of that. That is irrelevant, because the question here is we are not asking for expert opinion based on something he would look at now, it is to recall testimony about test that he already made back then when he had these items.
{3395}
That is nothing that an independent expert can give. This is asking him for his knowledge and procedures.
Now, I am not saying that if the Court doesn't admit those, we will hold up the witness and use him.
What I am saying, in the course of this trial I would have to ask him an awful lot of questions if the only way I could get this information in the record was excluded by the Government not allowing -- or the Court not allowing us to introduce those documents.
What I am saying is that I would not want to inconvenience this witness and clutter up the record by going through this if the Court is going to properly allow us to introduce them in evidence and we can use the exhibits themselves. That's one of the reasons why exhibits are introduced, so you don't have to read the whole thing verbatim to the jury. I am not trying to blackmail anybody. I am just suggesting that he stand by or be subject to recall so that when your Honor rules we will know whether we do or not.
THE COURT:  It would be my suggestion that if you have any more evidence that you desire to get from this witness, that you do it now.
MR. LOWE:  Well, the evidence that I want is in the documents.
THE COURT:  I understand.
{3396}
MR. LOWE:  Do I understand that, your Honor, if I have to assume that I must protect myself against nonadmission, that the only alternative I have now is to read the documents to the witness; and I mean that's the essence of what I have said about the documents, is that I would want the jury to know all of the items that are listed in order to prove the non-inclusion of some very important information. I hesitate to start reading all those documents to the jury unless your Honor rules that I may not.
MR. SIKMA:  Your Honor, I would submit that the fact that some items may not have been found, some items of evidence have not been found, someone successfully concealed them, the fact that if they are important matters of evidence that we haven't introduced them, the Defendant can simply argue that as to where they are, question where they are. They are not here. It may be that on a lot of these items the defense is merely speculating that they exist.
Now, that doesn't mean that the counsel is entitled to go through 3,000 items and say, "Did you find, did you examine a given item, and were you able to connect it with any of the firearms in this case?" And he would say "No."
That doesn't mean, No. 1, that they couldn't necessarily be connected in a lot of cases because sometimes there are {3397} just insufficient markings to show that, sometimes a weapon may leave no markings at all, sometimes the items may just not have been found.
The FBI worked in this crime scene area for a couple of days, but the grass, foliage is high; and it is possible there are items that are still out there that have never been found, you know.
I don't think it logically follows that every item that's in this report that did not prove something or items that were never found and are consequently not on this report, make these reports admissible -- it just does not.
THE COURT:  I am not ruling at this point whether they are admissible or not admissible I am just saying it seems to me if there are some more questions to ask of this witness, this is the time.
MR. LOWE:  To summarize my position, my position is, No. 1, I think I am entitled to have a ruling on the admissibility of those documents before we release this witness from all cross examination because I may want to offer modifications if there are specific items in the document that you feel are not admissible, other parts would be.
No. 2, I think it would be very prejudicial if I had to read extensive portions, many pages of single-spaced {3398} items to the jury. I think they could get aggravated. I think they could get upset. They are sequestered, and it is taking so long. If it is unnecessary because the Court admits all or portions of those documents, requiring me to do that to protect my record prior to your Honor ruling is prejudicial to the defense. I would decline to ask any further questions as to those documents, that's all I would have left to ask is what is contained in those exhibits. I would decline to ask any more questions about the exhibits until your Honor rules, and ask the witness not be released; because if your Honor admits these, I have no further questions.
I am sure this witness has a lot of important things to do, but they have to yield in this case, I suspect, to the convenience of the Court.
THE COURT:  There is no way I can give fair consideration to those documents without taking the time to look them over.
MR. LOWE:  I agree.
THE COURT:  It appears to me that you are just about done --
MR. SIKMA:  (Interrupting) One more witness.
THE COURT:  (Continuing) -- with the Plaintiff's case
So where does that leave us then as far as the time frame is concerned?
{3399}
MR. SIKMA:  I suppose the defense can call this witness if they need to.
THE COURT:  The only reason I am hesitating is because you made some comment yesterday that this witness is needed somewhere else.
MR. SIKMA:  He is, your Honor. He has, I believe, a number of things piling up.
MR. LOWE:  I will stipulate that everybody involved in this case has things piling up.
MR. SIKMA:  He has court appearances piling up, so his availability might be somewhat hampered. We wouldn't be able to get him at a moment's notice.
MR. LOWE:  I would be willing to do this, your Honor, I would be willing to allow or to agree that he would be released in the sense of not keeping him available here, subject to additional cross examination at some point; in other words, the difference I am pointing out is the difference between some limitations on counsel in direct examination rather than cross examination, but to take him in turn during the defense case. I am not objecting to that.
I think your Honor ought to have a chance carefully to consider those exhibits; and that, it would seem to me, would sort of meet everybody's needs at this point; and let your Honor take that under advisement with the {3400} understanding that if you rule against the admissibility, that we would be allowed additional cross examination of this witness during the defense case. I think that's fair, or maybe we could stipulate something too?
MR. SIKMA:  Perhaps we can, if you are just going to read them and say, "Is this in your report?"
MR. LOWE:  That's part of what I might have to do to get the evidence in.
MR. SIKMA:  If counsel would allow counsel to do that, we would not want to waive our objection to the questions asked; but if the Court ruled, "Yes, he could ask those questions in that manner," we would allow him. We could stipulate.
THE COURT:  That sounds reasonable.
MR. LOWE:
A  reasonable compromise.
THE COURT:  Very well.
{3401}
MR. SIKMA:  I have nothing further, Your Honor.
MR. LOWE:  I have nothing further of this witness on the record, Your Honor.
THE COURT:  You may step down.


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