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

TUESDAY MORNING SESSION
 March 29, 1977
 (Whereupon, the following proceedings were had and entered of record on Tuesday morning, March 29, 1977 at 9:00 o'clock A.M. without the jury being present and the defendant being present in person:
 MR. TAIKEFF:  Good morning, Your Honor.
 THE COURT:  Good morning.
 MR. TAIKEFF:  There's just one matter for the Court, and that is to ask whether or not Your Honor has ruled on Defense Exhibit 75.
 THE COURT:  I was going to take that up.
 MR. TAIKEFF:  Thank you.
 THE COURT:  First of all with regard to the request that the jury be permitted to view an object through the rifle telescope measured a half a mile, that some site be selected, that request is denied. The reason for the denial is that there is no way to duplicate the exact conditions that may have existed on the 26th of June, the exact distance there which the witness testified that he had viewed the object is not known. It was only an estimate. And the Court is of the opinion that differing conditions of light, atmospheric conditions, background and even the viewer itself are such that to go through that exercise would have no probative value.
 With reference to the exhibits that were offered {1936} yesterday afternoon and specifically Exhibit 122 the Court notes that page 18 which appears to be the last, the last pate of Exhibit 122, the following statement appears:  "The aforementioned inventory was divided in the search as follows:  Special Agent Robert D. Harvey and Harry Thomas Evans inventoried items 1 through 103.
 "Special Agent Kenneth J. Andrus and Special Agent Cortlandt Cunningham inventoried items 1 through 6. List had a page 9 dealing with radio equipment and ending on page 11 through 12.
 "Section dealing with firearms and explosive specimens, items 1 to 33 was inventoried by Special Agent Cunningham and Special Agent Edmund W. Kelso.
 "Items listed under miscellaneous items, 1 through 32, were inventoried by Special Agents Robert D. Harvey, Kenneth J. Andrus and Harry Thomas Evans."
 It's obvious that on the basis of the decision of the Court of Appeals in the United States v. Cloudman, 534 F.2d 123 (1976), and from the nature of the exhibit, that Exhibit 122 is not admissible.
 MR. LOWE:  That would be until such time as we produce or lay a foundation with the other people and then only as to those portions that individuals could themselves identify I presume?
 THE COURT:  Well --
{1937}
 MR. LOWE:  If what you've said so far any way.
 THE COURT:  Yes. That may make it admissible. I'm not ruling at this time.
 MR. LOWE:  Yes.
 THE COURT:  On Exhibits 120, 121 and 123 it appears to me that those exhibits may be cumulative and to the extent that they are cumulative they have no probative value. On the other hand I believe it to be within the discretion of the Court where these exhibits are simply a listing by the special agents of the items found, the Court will admit Exhibits 120, 121 and 123.
 Court had reserved ruling on Exhibit 106. That exhibit will not be received, again on the basis of the United States vs. Cloudman.
 MR. LOWE:  Could Your Honor just identify by some description what 106 is. We don't have a --
 THE COURT:  It is the 302 prepared by Special Agent Frederick Coward relating to Stoldt.
 MR. LOWE:  And Your Honor is using the Cloudman decision. I'm not sure I understand just by citing that case what the reason is. Could Your Honor just state it so that we have guidance on that.
 THE COURT:  I'll just read the appropriate paragraph. "It is next claimed that the trial court erred in refusing to admit into evidence Defendant's Exhibit A. Exhibit A was an {1938} FBI report of an interview by Agent Flynn with Charla Kalsato, a government witness. Prior to the testimony of Kalsato defense was furnished a copy of Agent Flynn's report. It was not a signed statement nor was it adopted by the witness, but was merely a reduction to writing by an FBI agent of an oral interview. As such it was hearsay and the District Court properly excluded it. Defense counsel used the report in cross-examination of the witness and then offered the report itself into evidence.
 "The FBI agent who made the writing of the report was present and available for calling, yet counsel chose not to call him. This would have been the proper --"
 MR. TAIKEFF:  Your Honor, may I inquire whether the last offer that Your Honor rejected, I think the number was 103, was it a paragraph in the report? It's hard for me to keep track of all these documents by number. My recollection seems to be 103. We're talking only about a single paragraph in that report, or maybe it's 106.
{1939}
 THE COURT:  106 is the one you have reference to.
 MR. TAIKEFF:  Am I correct, Your Honor, that that paragraph is contained within a 302 which was authorized by Coward?
 THE COURT:  Yes.
 MR. TAIKEFF:  And it concerns what was said to him by Stoldt?
 THE COURT:  That's right.
 MR. TAIKEFF:  Your Honor, that was offered to show what Stoldt said to him on that particular occasion and he said that he could not testify from his own memory. Therefore, I not only could not use the report to impeach his memory but couldn't get into evidence out of his mouth what Stoldt said to him, he being the only witness to what he heard. And so I then questioned him as to whether or not that when written represented what was a fresh recollection in his mind at the time and it was specifically offered as a past recollection recorded. So Your Honor's citation to the eighth circuit rejection of the appellant's position on the basis of hearsay is not apt with respect to that particular paragraph because it is, I trust, basic that a past recollection recorded is an exception to the hearsay rule so that if it's hearsay it's not restricted as hearsay normally is on the one hand. On the other hand, the eighth circuit case refers to the fact that the document was employed {1940} sufficiently or adequately in cross-examination and, hence, the jury was able to hear it as impeachment evidence as opposed to evidence in chief. But in connection with my inquiry of Agent Coward, there was no evidence in chief because he said he can't remember what he was told and so I laid a proper foundation to introduce it as evidence in chief, not as impeachment material and, hence, I believe that the basis of Your Honor's ruling is not appropriate to that particular paragraph.
 THE COURT:  You are seeking through this paragraph to have Coward testify as to what Stoldt said to him?
 MR. TAIKEFF:  That is correct, Your Honor. To show what Stoldt said.
 We obviously take the position that the facts asserted by these two people are not true. That alone takes it out of the definition of hearsay. Hearsay is defined as an out of court declaration which is offered to prove the facts asserted therein. Our position is to show that the facts asserted are false, they are not true, so it isn't hearsay to begin with. However, perhaps it may be hearsay. If it is, there is an exception to the hearsay rule.
 Mr. Lowe encourages me to call Your Honor's attention to the fact that what I am trying to do is prove the utterance, not the content. I want to prove the utterance because our position is that the utterance is false and the {1941} content of that paragraph helps us establish that fact. So it's not hearsay to being with and if it is there is an exception for it.
 THE COURT:  It seems to be the difficulty with your position is that the utterance isn't before the Court.
 MR. TAIKEFF:  It is before the Court, Your Honor. There is testimony from the witness that there was such an interview. Am I correct that that is the 302 of September 4? Lower left-hand corner date is the one I'm referring to.
 THE COURT:  September 4.
 MR. TAIKEFF:  Yes, Your Honor. There was testimony that there was an interview on that day. That was the delayed interview for which he had no time on June 26th because he was preoccupied and it was two or more months later when he finally got around to interviewing Stoldt and no longer remembered what Stoldt said to him. Now I offer that to show what Stoldt said to him.
 In addition to that, it also shows what he wrote on that day purporting to be what Stoldt said to him. Now that then would be an act of his. He can't remember out of his mind what he act was, i.e., the dictation to the stenographer. But there is no question but that the typing of that followed upon the dictation so it is an accurate reflection presumably of what he said to the stenographer-typist, and he then looked at it and initialed it for accuracy which is further {1942} confirmation of the reliability of the text to show what he said Stoldt said. That's all I want to show.
 I specifically, and I think it should be clear from the defense position thus far that we do not acknowledge the truth of those statements. Quite the contrary. I want to show either what Stoldt purportedly said to him that day because of certain arguments that may be made with reference to it, through the significance of him having said that, if he said it, or in the alternative the physical act of Coward in writing or dictating that paragraph.
 MR. SIKMA:  Your Honor, may I be heard for just a moment?
 THE COURT:  You may.
 MR. SIKMA:  It seems to me that it's totally irrelevant. Defense counsel indicates that a prospective witness, the defendant indicated he's going to call that witness, has made a statement sometime during the course of the investigation. The government has not called that witness. The defense counsel is saying that that witness made a statement that was not true but he wants to use this hearsay statement, this transcript, or, it isn't a transcript, it's a summary of an interview. It isn't even a verbatim statement of that particular witness, and use that as evidence of some sort of defense. Well, it seems to me that it's totally immaterial and irrelevant. It's sometime during the {1943} course of an investigation that a witness or prospective witness made a statement that is not used as proof against the defendant concerning his guilt, number one, and, number two, isn't even being called as a government witness. That seems to me to be totally irrelevant. Even if there is some theory under with the statement could be used, if it were used for some legitimate purpose, there still has to be some materiality to the information which is contained in that statement.
 The defense can't set up straw men. The defense can't call witnesses concerning things that have nothing to do with this case in an attempt to use that as a defense in this case.
 The government isn't calling this witness, it isn't being used as evidence against the defendant so it seems to me rather strange that the defendant here should be trying to introduce evidence that someone made a statement which they're now claiming isn't true. Since it isn't being used in any sense in this case, the best evidence would be the witness who could be called to testify to that, if it in fact were even relevant in this case. We submit it's totally irrelevant.
 MR. TAIKEFF:  Your Honor, I just wanted to point out that I think the defense needs a Sikma English interpreter because I'm not entirely certain that Mr. Sikma has said {1944} anything that one could make sense of.
 First of all, I think it appropriate to observe that something cannot be irrelevant and immaterial and he interchanges the use of those words so I don't know what his argument meant.
 The point is, it's not hearsay. We do not offer it for proof of the facts asserted therein so his entire argument on the subject of hearsay is meaningless. His argument is irrelevant.
{1945}
 We offer it to show that an event took place and that it was so said to the agent, or that the agent wrote those words on a piece of paper by the facilities of a FBI stenographer. That is the purpose offering that paragraph.
 THE COURT:  I think, Mr. Taikeff, it you will review Rule 401, you will probably conclude that a piece of evidence can be both irrelevant and immaterial. 401 is the definition of relevant evidence.
 MR. TAIKEFF:  I am afraid that I don't share your Honor's view.
 THE COURT:  Very well.
 MR. TAIKEFF:  It says, if I read it correctly, that something is relevant if it tends to show that a fact in dispute is either more likely or less likely to have occurred. That is exactly why we offered that paragraph.
 THE COURT:  With reference to Defendant's Exhibit 75, the first two pages of that exhibit are in evidence.
 The Court on examination of the exhibit, finds that there are many items contained in that exhibit which are hearsay and for which there are no exceptions; and therefore, the balance of Exhibit 75 is not admitted.
 MR. LOWE:  Your Honor, so that our record may be protected, if not for persuasion of your Honor as to alternative bases for admitting it, I would point out that {1946} by any stretch of any person's imagination what took place on June 26th as to the FBI Agents and BIA Agents, using the radio, was excited utterances; and by that basis alone the radio transmissions would be exceptions to the hearsay rule where the presence of a declarant is immaterial.
 Secondly, what we are really offering that for, one of the reasons is what Ann Johnson perceived in terms of what she heard taking place on the radio network. It is not for that purpose offered for the truth of what took place, but to show the occurrence of certain radio traffic at certain times.
 It is certainly under that sense a presence sense impression of an event or condition that is taking place which was made contemporaneously with or shortly after the occurrence of the event and was taken down in her instance in shorthand. While it does not purport to be verbatim, she certainly adopts it as being as accurate as she could make it, that she was personally observing the times on the clock. We offer it at least on that basis to show an event that was taking place, that is, the reception of the radio traffic and what she perceived.
 We feel for that purpose at least it is relevant.
 THE COURT:  If it is offered only for what she perceived and not for the truth of what she perceived, then it seems to me it is relevant.
{1947}
 MR. LOWE:  No, your Honor. If she perceived that an agent said at two -- let's say at 12:18 an agent said, "There is a red pickup truck that just left the area," we do not offer it to prove that a red pickup truck just left the area. We do offer it to prove there was an utterance by Special Agent Gary Adams at that time to the effect that a red pickup truck just left the area.
 She obviously has no way of knowing whether Agent Adams was actually observing that or not. She does know that is what Agent Adams uttered at that time.
 That is why we are offering it, as a primary reason, all of the traffic, just to show at those particular times the people -- Agents or BIA officers made the utterances at that time, not to show that the utterances were factually correct or true at the time they made them.
 THE COURT:  Secondly, the Court does not construe these radio communications beyond the first two pages to be excited utterances.
 You have in this case trained investigative law enforcement personnel of two or three different agencies -- considering the South Dakota Highway Patrol, I do not know whether they appeared -- you have the BIA and the Federal Bureau of Investigation, routinely in the course of making a search making radio transmissions. I do not construe that as excited utterances.
{1948}
 MR. LOWE:  I understand your Honor's ruling on that. I want to be sure your Honor understands that is not the supporting foundation I said, that the utterances were made by these officers on their radio at the time they made them.
 There are two distinct categories, I think your Honor is expressing. I want you to understand that's my reasoning.
 THE COURT:  Very well.
 Are we ready for the jury?
 MR. TAIKEFF:  Yes.
 THE COURT:  They may be brought in.
 (Whereupon at 9:27 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:)