US vs LEONARD PELTIER TRIAL TRANSCRIPT EXCERPTS Case Number CR77-3003

The following is cross examination of Agent Cunningham (direct exam in vol 9) . Agent Cunningham and Agent Kelso were the two FBI agents who examined the vehicles for bullet holes, cartridges and casings. The .223 "found" in the trunk was supposedly located by finger Print Expert Evan Hodge prior to their arrival.
Form 192 (a mega list of items inclusive in bulk) differs from the 302 dictated on the same inventory.  The date at which things seem to change is June 30...same with the prior radio transmission transcription...

VOLUME 10

Q  Now based on what you have just said, to try and summarize, {2108} let's take Special Agent Colar's car first. That is the last one I went on. .38 special, you had one round in the trunk and three rounds in the trunk and twelve rounds in the trunk and in the front seat you had two individual rounds and I believe you identified those as being the only ones. I trust that what we said then was that there were no shotgun shells, no .223 shells and no .308 shells found in the automobile by you in the Coler automobile, is that correct?
 A  No, sir.
 Q  No it's not correct or no you didn't find them?
 A  I only found, sir, what is on the 302.
 Q  Out of those four categories of ammunition in the Coler car, you only found .38 special ammunition, is that correct?
 A  Yes.
 Q  Did you ever tell anybody -- let me ask you whether you ever testified or gave an affidavit, I want to talk about some .38 cartridges for a moment, .38 specials which are capable of being fired in .357 magnum weapons. Did you as a matter of your official duties give an affidavit in support of an extradition proceeding regarding Mr. Peltier some time in 1966? Excuse me. 1976.
 A  Yes, sir. And there were mistakes in that particular --
 Q  And you gave that under oath, did you not?
 A  Yes, sir. The best of my recollection.
 Q  And I trust that when you gave something under oath you {2109} read it first and you're testifying in that affidavit that it is true to the best of your knowledge and belief at the time you made it?
 A  Yes, sir.
 Q  I show you what has been marked as Defendant's Exhibit 124 and I just ask you to look at it for a moment to see if you can identify it. Look at it particularly to see if you see your own signature on it and also if you can state what the date is. The date frankly is not legible on my copy. Perhaps you can tell if not the exact date the approximate date of that affidavit.
 A  I can't read the month. It was the 11th day of some month.
 Q  Generally what time of the year, do you remember? Was it the fall or spring?
 A  I don't recall, sir.
 Q  You recognize your signature on that affidavit?
 A  Yes, sir.
 Q  You did give the affidavit under oath, did you not?
 A  Yes, sir.
 Q  When you gave the affidavit, did someone in requesting that from you indicate that it would be used in an extradition proceeding in Canada, a legal proceeding, in other words?
 A  Yes, sir.
{2110}
 MR. LOWE:  Your Honor, I would like at this point to approach the bench, if we could, for a moment?
 **THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 MR. LOWE:  We have had some false starts. Mr. Taikeff particularly did earlier this day about when a question has been asked and answered and whether it inhibits the use of documents and so forth, and also on the procedure for admitting documents into evidence.
 I want to explain to your Honor, what this is and what the significance is, and what I want to do with it in advance so that I am not interrupted at a critical phase when this witness is perhaps waiting, thinking of an answer, this is an affidavit which was given by this man which directly contradicts what he has just testified to under oath here and that is, it states, this right here (indicating), just read that, your Honor (indicating).
 It says in the Coler car, directly contradicts his statement he just made that he found no .223 cartridge in the Coler car.
 This cartridge is the single most important cartridge in this entire investigation and trial in the opinion of the defense; and what I would propose to do and what I would like to do is right now at the side bar offer this {2111} in evidence and have you rule so that I can use it in what I consider to be a proper way without a lot of interference -- whether proper or improper interference -- that would be disruptive to my question.
 I believe it is certainly relevant. It is a direct contradiction of his testimony here by an earlier sworn statement. I want to be able to use it and use a slide of this when I am questioning the witness. I don't know whether your Honor would feel I could use a slide of this before it is introduced into evidence; and that's what I would like to do, either offer it now or have your authority to use the slide before it is exactly in evidence. I don't want a Catch 22 where I can't use the slide or I can't get it in evidence.
 I asked for a side bar so you could rule on that now before I get a witness in a situation where I don't want to be interrupted.
 Did you read it?
 MR. SIKMA:  I am familiar with it. I will stipulate that it is error on his part. It isn't in the form of -- at least as it is written there -- it is not totally in error with regard to his custody of it, but it is in error as far as his particular finding of it. I think that it was found by Special Agent Hodge, and he has not testified in court here, that he found that. That's in {2112} an earlier affidavit. It can be used as a prior inconsistent statement. There is nothing I can see that's wrong with using it as a prior inconsistent statement; but I think that in a sense it is the use of a straw man once again. They are using something that was in error and has not been testified to by this witness.
 THE COURT:  But he has testified as to what he found in that vehicle?
 MR. SIKMA:  Yes, he has. I have no objection to the questioning.
 THE COURT:  Is this the only part that --
 MR. LOWE:  (Interrupting) That's the only part that is inconsistent. I can block that out and show -- I think the jury should be entitled to read the entire document. It is only in context that the jury can see that this is not just a typographical error; that the context of all the other things that are said specifically refers to findings. I think on the previous page it enumerates things found and where they were found.
 I feel this is a critical piece of defense evidence, and by any standard it is admissible. This is sworn, Judge. This is on two different sworn occasions when he has testified differently or made an affidavit on one occasion and both times under oath; and I --
 MR. SIKMA:  (Interrupting) You mean that he made {2113} two affidavits?
 MR. LOWE:  He made an affidavit under oath he found it here, and today he testified under oath that he did not find it.
 THE COURT:  Well, you are certainly entitled to show that discrepancy and introduce the exhibit.
 MR. LOWE:  I move to introduce it now.
 MR. SIKMA:  I would -- I think I would object to items which are not inconsistent with his testimony.
 THE COURT:  Well, it is a part of the total. I would agree with counsel, it is part of the total affidavits.
 MR. LOWE:  Thank you, your Honor.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 MR. LOWE:  I would move the admission into evidence of Defendant's Exhibit 124.
 THE COURT:  124 is received.
 (Defendant's Exhibit No. 124, having been previously duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Lowe) Now, Mr. Cunningham, I invite your attention to Paragraph 6, top of the second page, and you can read along with me and the jury can read along; and I will read Paragraph 6, says that:  Also in the said 1972 Chevrolet Biscayne automobile I found one .223 cartridge case in the trunk which {2114} I took into my possession and placed in an envelope marked "Items recovered from trunk, Jack R. Coler automobile"; and I ask you, first of all, if that is an accurate recital of what is contained on Page 2 of your affidavit under oath?
 A  Yes, it is.
 Q  And I will ask you if the 1972 Chevrolet Biscayne automobile which is referred to there was Special Agent Coler's car?
 A  Yes, it was; and that, by the way, sir, is not correct.
 Q  It is not correct?
 A  No, sir.
 MR. LOWE:  Well.
 I have no further questions of this witness, your Honor.