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

AGENT GERALD P WARING {CROSS CONT}
SA WARING DIRECT EXAMINATION   9A
SA WARING, REPORT DISCREPANCIES, {CROSS} 9B

(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:)
 GERARD P. WARING,
having been previously duly sworn, resumed the stand and testified further as follows:
 MR. TAIKEFF:  May I proceed, your Honor?
 THE COURT:  You may proceed.
 CROSS EXAMINATION
By MR. TAIKEFF:
 Q  Mr. Waring, what time did you leave this courtroom last night?
 A  I think it was approximately 5:30 or so.
{1949}
 Q  And between that time and now have you discussed any of the testimony you gave yesterday with anybody?
 A  No, sir.
 Q  Have you reviewed any documents or other matter?
 A  No, sir.
 Q  After the jury left at approximately three minutes to 5:00 last night, you gave additional testimony in the absence of the jury, did you not?
 A  Yes, sir.
 Q  At this time is there any reason you have to change any of the answers you gave in the absence of the jury?
 A  No, sir.
{1950}
 Q  Has anything come to your attention, or to your recollection since yesterday at 5:30 that suggests to you that there is a possibility that you might be uncertain about any of the answers that you gave in the absence of the jury?
 A  No, sir.
 Q  Now, when you first went on the stand yesterday to give your direct examination were you then or had you recently been aware of the fact that on a certain 302 of yours the date of dictation was listed as June 30, 1975 and the date of typing was listed as June 26, 1975?
 A  I had been aware of that for some time, yes, sir.
 Q  But my specific question was:  Were you aware of it at the time you got on the stand?
 A  Yes, sir.
 Q  I'm placing before you Defendant's Exhibit 83 for identification. Is that the 302 I just referred to?
 A  Yes, it is, sir.
 Q  Am I correct, sir, that the document has eight pages?
 A  There's eight pages. Page 4 is about, approximately one-half a page to a quarter page.
 Q  But it has eight separate sheets with at least some typing on each of them?
 A  Yes, it does.
 Q  And the pages are numbered 1 through 8?
 A  Yes, sir.
{1951}
 Q  Now, page 4 isn't a full page of typing; is that correct?
 A  That's correct, sir.
 Q  It's as you said, what, about a quarter of a page or a third of a page?
 A  Runs about a quarter of a page, yes, sir.
 Q  The rest of the page is blank?
 A  Yes, sir.
 Q  Now, at the top of the next page, which is page number 5, the report continues to describe events which you experienced on June 26, 1975?
 A  Yes, sir.
 Q  And what is the earliest time mentioned at the top of page 5?
 A  12:30 to 1:00 P.M.
 Q  What is the earliest time mentioned?
 A  That would be the first sentence. It says approximately 12:30.
 Q  12:30.
 Now, would you look at pages 1 through 4 and then again pages 5 through 8 and tell us whether based on your own personal observations at this time the material on pages 1 through 4 is typed on a different typewriter than the material on pages 5 through 8?
 A  I can't say definitely if it was or was not.
 Q  As you look at pages 1 through 4 and then again at 5 through {1952} 8 do you not detect an entirely different appearance in the type styles without getting down to the specific details of any letter or number, just a general sense impression?
 A  Like I previously stated I don't see a difference in it.
 MR. TAIKEFF:  Your Honor, I offer that document in evidence so that the jury may evaluate that answer.
 MR. HULTMAN:  Your Honor, the Government resists on the grounds that it is very obvious. This is an attempt to get before the jury a document which counsel has questioned and can continue to question this witness about; and the document itself is purely cumulative and repetitive and it's not the best evidence.
 If he wishes to specifically point out anything by this witness or any other concerning what might appear there, there is a proper method in which to do it and I would object for these reasons.
 THE COURT:  Sustained.
 Q  (By Mr. Taikeff) Sir, I ask you to take a look at the first page and the sixth page. With respect to the first page, please look at the second paragraph on the fifth line and tell me whether it contains the date June 25, 1975?
 A  That's the first page, second paragraph, line 5. It does, sir.
 Q  On that same page look in the lower right-hand corner and tell me whether there is a code number or serial number which {1953} is an FBI case number or the equivalent?
 A  In the corner --
 Q  Lower right-hand corner after the word "South Dakota".
 A  It says "MP".
 Q  Yes. Do you recognize that as a code number, case number, some sort of an FBI serial number?
 A  It just designates a case number.
 Q  Okay. And it's present there in the lower right-hand corner, is it not?
 A  Yes, sir.
 Q  All right. Now, would you take a look at page number 6. In the upper left-hand corner of that page do you find that case number which was in the lower right-hand corner of the first page?
 A  yes, sir.
 Q  And in the, roughly the middle of the first full paragraph which you might call the second paragraph, the one that begins at this point, do you find reference to two hundred fifty, written out as a number, yards?
 A  Yes, sir.
 Q  In the last paragraph on that page do you find on the third line 75 yards, but with the 75 written as digits?
 A  Yes, sir.
 Q  Now, sir, I ask you to compare those portions of page 1 that I've called your attention, with portions of page 6, {1954} specifically looking at the seven which appears in both places on page 7, and the seven which appears in both pages on page 6 and tell me whether or not you are fairly certain that they are distinguishingly different sevens?
 A  I can't be certain that they are, sir.
 Q  Now, I want you to take a look at the five which appears in June 25, 1975, twice on page 1 and the five which is in two hundred fifty yards, and seventy-five yards on page 6, and looking at the five in both instances tell me whether or not it is your perception that those fives are clearly different shape characters?
 A  I'd have to say again not clearly.
 Q  Tell me, sir, whether Defendant's Exhibit 126, which I place before you, is a reproduction on clear celluloid of page 1 of Defendant's Exhibit 83? Yes or no.
 A  Yes, sir.
 Q  Tell me whether Defendant's Exhibit 127 is similarly a duplication of page 6?
 A  Yes, sir.
 Q  Tell me whether Defendant's Exhibit 128 contains that portion of page 1 which has the date and the word before it and the two words after it from the second paragraph of page 1?
 MR. HULTMAN:  Your Honor, at this time the Government, I think the questions have been asked and have been answered and asked again and answered again to the best of ability of {1955} the witness. I have no objection at this time that if counsel wishes to stipulate into the record that it would appear with those letters that it could so be interpreted, to so stipulate into the record at this time.
 MR. TAIKEFF:  Your Honor, I appreciate Mr. Hultman's offer at this particular time but I believe this witness's credibility is in issue and I am at this time attempting to explore his credibility if I may be permitted to continue. I reject the stipulation.
 MR. HULTMAN:  I again would then enter my objection that these particular questions have been asked and answered and asked and answered and it's repetitive.
 MR. TAIKEFF:  I don't see how he could say they have been asked and answered. I have one more exhibit I haven't made reference to.
 MR. HULTMAN:  He excluded the two by way of comparison and anything else by way of any of the letters on the pages not in issue in any way.
 MR. TAIKEFF:  Your Honor, I am using these exhibits and these questions to lay a foundation for further cross-examination.
 THE COURT:  Counsel please approach the bench.
 (Whereupon, the following proceedings were had at the bench:)
 THE COURT:  I am having difficulty understanding how {1956} this could impeach this witness. In the first place he has testified that he dictated to two different stenographers. I don't think it's particularly inconceivable that two different stenographers would type on two different typewriters.
 MR. TAIKEFF:  That's precisely where it is a serious credibility question because he persists in not admitting what is clear to the naked eye.
 I think the jury is entitled to evaluate his testimony, his candor in light of what is clear in the face of these documents.
 THE COURT:  The second problem that I see with that is that under the modern typewriters if you change the ball you've got a different type.
 MR. TAIKEFF:  I understand that, but that doesn't go to the question of admissibility. That goes to the question of weight and it's the Government's function to bring that out.
 THE COURT:  I'm aware of that, but it seems to me that you are getting into a collateral issue here which really gets down to an argumentative basis without any, that has no relevancy to the credibility of the witness or anything else.
 MR. TAIKEFF:  Your Honor, I'm not seeking to call an expert to the stand to testify in rebuttal on a collateral issue. I am questioning this witness's veracity and his {1957} willingness to answer forthrightly and candidly.
 THE COURT:  He has answered and you are bound by the answer.
 MR. TAIKEFF:  I'm not bound by the answer, Your Honor, only in the sense that I cannot call a witness in rebuttal am I bound by the answer. I am not bound by the answer in that I cannot probe him.
 THE COURT:  You are bound by his answer that he can see no particular distinction.
 MR. TAIKEFF:  But the jury must be in a position to evaluate the truthfulness of that statement.
 THE COURT:  He can be perfectly truthful and still see no distinction.
 MR. TAIKEFF:  But they can decide that that isn't true. That's a question of fact for the jury, not for Your Honor or for the Government or even for me. Only they can determine that.
 MR. HULTMAN:  Your Honor, I would just come back to the fact that the questions have been asked and asked. It's a very simple question about a specific two numbers. I submit it's not as plain. I looked at the pages myself, Counsel, and I thought they were typed on exactly the same.
 Frankly, when you point -- now, wait until I finish.
 MR. TAIKEFF:  I wasn't going to interrupt.
 MR. HULTMAN:  When I finally looked at the two specific {1958} numbers to which you are referring I have difficulty myself, and I think I would probably give the same answer or the same response that you're trying to elicit a hard yes or a hard no from this witness. He has given an answer that falls somewhere between those two particular categories and I submit the question has been asked Your Honor. It's been answered and for that reason I object.
 THE COURT:  The other problem you have here is really what you are doing, you're not probing the direct testimony of the witness. You are simply setting up straw men and then attempting to knock them down.
 MR. TAIKEFF:  Your Honor, this witness has perceived things which he's testified about. If his ability to perceive in the eyes of the jury is so ineffectual that he cannot see the difference between the fives and the sevens on those typewritten samples then he's a cripple and the jury should know that he's a cripple.
 THE COURT:  The objection is sustained. There will be no further inquiry on this point.
 MR. TAIKEFF:  Well, they're marked in evidence.
 MR. LOWE:  May we have a clarification, Judge, as to your practice. When we mark something for identification is additional proffering necessary in order to make it a part of the record for proffer purposes for an appellate record? Do we actually have to say we offer this as a proffer?
{1959}
 THE COURT:  I will direct as long as you offer it, or I mean you've marked it, and have offered it I will direct that it be made a part of the record.
 MR. TAIKEFF:  Could I just ask one more foundation question for the purpose of protecting the record?
 MR. LOWE:  Let me just ask one more thing with regard that we would ask Your Honor any time we make an offer and you reject it that it can be considered that that is a proffered item, that's all. I think that's what you said.
 THE COURT:  I think it should properly be made a part of the record, not a part of the exhibit record to the jury for its deliberations, but a part of the record of the case for appeal. If an appeal should arise in this case it would go to the Court of Appeals.
 MR. LOWE:  That's all I want to clear, is that that is what your understanding is because that's my understanding.
 THE COURT:  That is my understanding, right.
 MR. TAIKEFF:  I was wondering whether the Government had lost interest. There was a matter I'd like to -- could we invite them back.
 THE COURT:  Yes.
 The conference, bench conference is still on.
 MR. HULTMAN:  I thought the Court ruled and I assumed that was the end of the matter, Your Honor.
 MR. TAIKEFF:  Okay. There are two points. I just want {1960} to lay additional foundations on my record so it is complete, and I don't believe the question with respect to 129 was answered. So if I go back, I don't want to be considered to be repeating myself. I'm repeating the question only because there was not an answer. It was interrupted by objection.
 Secondly, Mr. Hultman on a number of occasions that I'm aware of has said that a question has been asked and answered. Now, in reviewing the record I find that he makes that statement when indeed no question has been repeated. It's maybe that he feels that a certain subject has been gone into too much and I would trust that if that is his opinion he would state his objection that way so there is no confusion in the record or in the minds of the jury as to what his position is.
 I don't want to end up having an exchange with him through the Court over a matter such as that, but I think it is unintentional, but nevertheless unfair for him to characterize an objection one way which is factually unfounded when he has from an advocate's point of view a legitimate basis for making his objection. But he shouldn't misstate what the basis of that objection is.
 MR. HULTMAN:  Well, could I respond to that, Your Honor?
 THE COURT:  You may.
 MR. HULTMAN:  I've tried to do my best and if my memory is correct, and I don't have the transcript in front of {1961} me to find the exact page instantaneous, Counsel, as you can well appreciate, but I would state that to the very best of my ability that the very question, in substance, not exactly may be the exact words from first word to last, of the last question has been asked and answered, and not once but at least twice or more times, and that was the basis, one of the basis for my objection just now.
 MR. TAIKEFF:  I would just say that if I didn't think that Mr. Hultman was doing his best and what he believes to be, and I don't say that facetiously, appropriate and honest way, I would not have brought the matter up here in private. I would have said some thing about it before the jury.
 MR. HULTMAN:  I understand, and I will do my best.
 THE COURT:  Very well.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 MR. TAIKEFF:  May I proceed, Your Honor?
 THE COURT:  You may.
{1962}
 Q  I believe, sir, I was up to showing you No. 128 for identification and at that time you had before you both Defendant's Exhibit 83 and 127 and 126 for identification and the question I put to you is whether 128 contains the date June 25, 1975 from page 1, including the word before it and the two words including the punctuation after it? You can lay them over each other and hold them up to the light if you like.
 A  Yes.
 Q  Okay.
 Finally, would you tell us whether Defendant's Exhibit 129 for identification contains elements from page 6; namely, the case number from the upper left-hand corner, the phrase, "250 yards west," from that same page and the phrase "75 yards" from that same page all as circled in green on 127 for identification?
 A  Yes.
 MR. HULTMAN:  Your Honor, could I ask just a question of Counsel at this particular point?
 MR. TAIKEFF:  No objection, Your Honor.
 MR. HULTMAN:  Counsel, is it my understanding that Exhibits 126, 127, 128 and 129 are parts of exhibits, proposed Exhibit 83?
 MR. TAIKEFF:  Yes. Two of them are full pages and correspondence. Each of those full pages are excerpts of the specific material referred to.
{1963}
 MR. HULTMAN:  Now, Your Honor, I reimpose my objection but additionally that because of the response which Counsel has now asked, just has given to Counsel that 126, 127 and 128 serve no purpose whatsoever. They are merely parts of the exhibit that's already been discussed and ruled upon here so I would enter my objection on each of those for the previous reason and now for the additional reason it's repetitive, serves no probative value, cumulative.
 MR. TAIKEFF:  Your Honor, before I make any offer I'd like to ask one or two more foundation questions and then make my offer so the record is clear.
 THE COURT:  You may proceed.
 Q  (By Mr. Taikeff) With respect to 126 through 129 inclusive, you're satisfied that they duplicate one portion or another of Defendant's Exhibit 83, your 302?
 A  Yes, sir.
 MR. TAIKEFF:  First, Your Honor, I reoffer 83 so that the jury may not only compare --
 MR. HULTMAN:  If it please the Court, at this time I'm going to object to any statements made by Counsel and request we approach the bench.
 MR. TAIKEFF:  I offer 83 for the jury's perusal, the entire document.
 MR. HULTMAN:  And I object, Your Honor, for all the reasons that I previously have stated.
{1964}
 THE COURT:  The objection is sustained.
 MR. TAIKEFF:  Now, Your Honor, I offer 126 and 127 which are respectively the duplications of pages 1 and 6, that is to say, less than the entire report. Just those two pages.
 MR. HULTMAN:  And I offer the same objection for all the previous reasons.
 THE COURT:  The objection is sustained.
 MR. TAIKEFF:  Now, Your Honor, I offer Defendant's Exhibits 128 and 129 which contain only the small elements from pages 1 and 6 respectively and none of the other words except one or two words sufficient to identify the elements.
 MR. HULTMAN:  Same objection, Your Honor, for the previous reasons.
 THE COURT:  Objection is sustained.
 MR. TAIKEFF:  And finally, Your Honor, I ask permission of the Court to be able to project any or all of the transparencies on the screen so the jury may see what I'm talking about rather than just hear what I'm talking about in questioning this witness further.
 MR. HULTMAN:  If it please Your Honor, could we approach the bench one more time. I'm going to make an objection.
 THE COURT:  You've made your objection. The objection is sustained. Let's get on with it.
{1965}
 MR. LOWE:  May I have just a moment, Your Honor?
 THE COURT:  The Court has ruled that the matter is irrelevant.
 Q  (By Mr. Taikeff) As you recall, was there anything special about June 30, 1975?
 A  June 30 is the date that I dictated my report concerning the June 26th shooting.
 Q  Anything else special about that day that you can recall?
 A  Just that I conducted investigation involving the, investigation involving the death of Agents Coler and Williams.
 Q  In or out of the office?
 A  At this time I can't recall whether I spent the entire day in or out of the office.
 Q  Is there anything that you know of that's in existence that would help you remember? A diary or anything at all?
 A  No, sir.
 Q  Do you have any means of reconstructing that day in terms of your professional activities?
 A  The only thing that I'm confident I did that day was dictate my report, as I remember, and that I did continue to work a full day that day.
 Q  What time did you start working that day?
 A  At this time I don't know exactly, sir.
 Q  This was four days after the incident, was it not?
 A  Yes, sir.
{1966}
 Q  Do you recall generally what sort of schedule you were working during the first week after the incident? I don't mean from what hour to what hour necessarily but were you working an eight hour day, a 15 hour day?
 A  Generally, sir, the days were running from maybe an hour to an hour and a half prior to 8:00 A.M. and would go until the evening hours.
 Q  Did you have any meetings on June 30 with any agents in a group of three or more?
 A  Well, I can't recall exactly, sir, but there were many conferences that took place during the course of our investigation.
 Q  I'm talking only about the first four days until such time as I indicate to you otherwise. Do you understand that?
 A  Yes, sir.
 Q  June 26th was a Thursday, correct?
 A  Yes, sir.
 Q  I want you to focus your attention on that Thursday and the following days, Friday, Saturday, Sunday and Monday. Do you understand that?
 A  Yes, sir.
 Q  During that period of time did you have conferences with your fellow agents working on this case?
 A  Yes.
 Q  Did you meet with Agent Adams?
{1967}
 A  Yes, sir.
 Q  Did you meet with Agent Skelly?
 A  I believe Agent Skelly was in the area; yes, sir.
 Q  I asked you whether you met with him, I didn't ask you whether he was in the area. Did you meet with him?
 A  I don't recall at this time if I specifically met with Agent Skelly.
 Q  Agent Coward?
 A  Yes, sir.
 Q  Agent Hughes?
 A  Yes, sir.
 Q  Did you all meet together as a group to discuss the case and how the investigation was developing?
 A  Yes, sir. As I stated, we had many conferences with many agents, including those agents.
 Q  Were those conferences, at least in part, scheduled for particular times of day or particular periods in the day?
 A  Normally they just call a conference, the bosses that were running the investigation.
 Q  Who were those people?
 A  That was Mr. Meincke for one, Mr. Zigrossi was there, but I can't recall exactly what day he arrived.
 Q  Who was the case agent?
 A  I don't know sir.
 Q  Wasn't it agent Hughes?
{1968}
 A  I really don't know who the case agent is at this time, sir
 Q  Didn't you meet every morning?
 A  Yes, sir. In a large group.
 Q  That's what I'm asking you about.
 When you met in a group of three or more, how many agents met during those first four days at the morning meetings?
 A  Normally all of the agents that would be working the investigation would have a conference in the morning.
 Q  Do you understand that the phrase how many means a number?
 A  I don't know how many exactly.
 Q  What's your best estimate?
 A  I'd say approximately 50.
 Q  You met in an auditorium?
 A  No, sir.
 Q  Where did you meet?
 A  Met in the building there at Pine Ridge that was opened up. There's a room that's large enough, you sit on the floor and so forth.
 Q  Did the agents, were the agents free to speak and offer suggestions and comments?
 A  Yes, sir.
 Q  Was the development of the investigation from day to day brought to everyone's attention so everyone would know what was going on?
{1969}
 A  Yes, sir.
 Q  Did you meet again in the evening?
 A  On some days we did, sir.
 Q  I'm talking about those four days only, up to and including Monday, June 30, 1975.
 A  At this time I don't know if we had a meeting every night those four days, sir.
 Q  Could you say whether there was a meeting on Monday morning, June 30?
 A  We were holding regular morning meetings; yes, sir.
 Q  Did someone preside over the meeting?
 A  Yes, sir.
 Q  Was it the same person on each of those four days?
 A  I can't recall if this was the same individual each day.
 Q  Can you name the person or persons who presided at any of these large meetings?
 A  Well, Mr. Zigrossi, Mr. Meincke.
 Q  Did you have occasion during the period which is under scrutiny right now to speak with any of the BIA people?
 A  I might have spoken with some of the BI people but specifically I don't recall that.
 Q  Did you ever speak with anyone by the name of Ecoffey?
 A  I know Mr. Ecoffey and I have spoken with him; yes, sir.
 Q  Did you speak with him on the 26th?
 A  I don't recall if I spoke with him.
{1970}
 Q  Did you ever read anything which he wrote or purportedly wrote?
 A  I'm sure I've written things that, excuse me, I'm sure I've read things that he has written; yes, sir.
 Q  Do you recall whether or not you read a report of his dated June 26, 1975 relating his version of what occurred that day based on his activities and observations?
 A  No, sir.
 Q  Would you say that as a general rule, and based upon your years of experience that the FBI hires stenographers who are competent and who do in the main accurate work?
 A  Yes, sir.
 Q  In fact, when you cannot recall a date you're satisfied to look at a 302 and rely upon the date that's on that 302, isn't that correct?
 A  It's contained in the body of the report; yes, sir.
 Q  Well, you check reports, do you not, before you initial them?
 A  Yes, sir.
 Q  And I assume that you check them for accuracy and completeness, isn't that true?
 A  Yes, sir.
 Q  And if you see something which you think at the time you're checking on it doesn't belong there, you would ask the stenographer to correct it, wouldn't you?
{1971}
 A  If I see it, sir; yes, sir.
 Q  Now you did check your report that has a date of transcription on it June 26, 1975, did you not?
 A  Yes, sir.
 Q  And you initialed it, did you not?
 A  Yes, sir.
 Q  And if you found any mistakes you had them corrected, did you not?
 A  If I found typographical errors; yes, sir.
 Q  Well, sir, can you tell us why that report reflects the fact that it was dictated on June 30, 1975 but shows a date of transcription of June 26, 1975?
 A  Yes, sir. Because it was a typographical error that I didn't see before I initialed it.
 Q  But, sir, which of those two dates was the typographical error, the June 26th or the June 30?
 A  The June 26th, sir.
 Q  We can agree, can we not, that it's impossible to dictate something on June 30 that's typed on June 26th?
 A  That's correct, sir.
 Q  Isn't it a fact that the first four pages of your 302 which is Defendant's 83 for identification was rewritten on June 30, 1975?
 MR. HULTMAN:  Your Honor, I haven't objected up until this time but I am now. This whole series of questions and {1972} this whole matter was gone into yesterday and I do object.
 THE COURT:  I will allow the witness to answer that question.
 A  Can I have the question again, please.
 MR. TAIKEFF:  May it be read back.
 THE COURT:  The question will be read back by the reporter.
 (Whereupon, the last question was read back.)
 A  That's not correct, sir.
 Q  (By Mr. Taikeff) In connection with writing it, when I say writing you understand that I mean either writing or dictating so that it becomes typewritten, do we have that understanding?
 A  Yes, sir.
 Q  Because you are the author of that report, are you not?
 A  Could I see the report that you refer to?
 Yes.
 Q  Yes. No. 83.
 A  Yes, sir.
 Q  When you wrote that portion of 83 for identification which is now the first four pages, isn't it a fact that you recorded certain information there which you did not see or hear on June 26th but wrote it up as if you did?
 A  That's not correct, sir.
{1973}
 Q  I am referring to Pages 1924 and '25 of the transcript in this case.
 I think you said a few moments ago that the reason why the report shows a transcription date of June 26 and a dictation date of June 30th is because the typist made a typographical error, is that correct?
 A  That's correct, sir.
 Q  Now, tell me whether or not the following question was put to you and the following answer given in the proceedings which occurred after the jury was excused last night.
 The bottom of Page 1924.
 Question:  Do you now know something that made you say they may be wrong? There is something on your mind that prompts you to use that phrase "they may be wrong"?
 Answer:  Well, I know that the date on the other 302 that you're referring to, when the stenographer transposed the date from the dictation dates of the transcription date, they inadvertently put the date of the entry, I believe, or the date of the events of the shooting on the one that I wrote.
 Did you give that answer to the question yesterday?
 A  Yes, sir.
 Q  And were you referring there to the fact that a typographical error was made?
 A  Yes, sir, transposing the date would be the typographical error.
{1974}
 Q  Now, when you gave your direct testimony, you referred to the shooting as that of automatic fire?
 A  Yes, sir.
 Q  Is that correct?
 A  Yes, sir.
 Q  Now, automatic fire refers to the kind of firing that comes from a machine gun or a sub-machine gun, isn't that true?
 A  It comes from an automatic weapon which in not every case is described as a machine gun.
 Q  Well, an automatic weapon is one where, if you pull the trigger once but keep the trigger down, and if the gun keeps working, it shoots out all the bullets until the magazine is empty, isn't that correct?
 A  Yes, sir.
 Q  Now, neither you nor any of your fellow agents found any weapons or any evidence of weapons that were automatic, isn't that correct?
 A  I didn't, sir.
 Q  Do you know anyone who did?
 A  You would have to ask the other agents.
 Q  I asked you if you know anyone.
 A  No, I don't know of any, sir.
 Q  It is a fact, is it not, that under the law only law enforcement personnel and the military, except in the very special case of someone who gets a special license, can use an {1975} automatic weapon such as the one I described a moment ago, isn't that correct?
 A  I think that's correct, sir, but I am not absolutely positive of the law. It is not something that I have studied.
 Q  Well, if you saw somebody with a sub-machine gun out in the field firing at tin cans, with a Thompson sub-machine gun, and you were still a Special Agent of the Federal Bureau of Investigation, would you arrest that person?
 A  Not right at that point, sir.
 Q  You would ask him a question, wouldn't you?
 A  I would talk to him, yes, sir.
 Q  You would find out whether that person was a law enforcement officer?
 A  Yes, sir.
 Q  Or whether that person was in the military?
 A  Yes, sir.
 Q  Or whether that person had a very special and hard to get license permitting that person to possess a fully automatic weapon, right?
 A  Yes, sir.
 Q  And if the person didn't satisfy you with respect to one of those three, you would arrest that person, wouldn't you?
 A  Me personally, sir, I would most likely contact the local police agency.
 Q  To arrest that person?
{1976}
 A  To do whatever he feels is proper to do with that individual.
 Q  And if that person started walking away, would you restrain that person's movement?
 A  At this time I can't say exactly what I would do in that situation.
 MR. HULTMAN:  Well, your Honor, I would object now as to any further questions as being highly speculative, no probative value and irrelevant.
 THE COURT:  Well, he has answered the question.
 MR. TAIKEFF:  I have no further questions on that point, your Honor.
 THE COURT:  Very well.
 $Q  (By Mr. Taikeff) Didn't you testify on your direct examination and describe the firing you heard as automatic in a conscious effort to prejudice the jury's mind so that they would believe possibly that automatic weapons were possessed by some of the people from Tent City?
 A  No, sir. I said that because that's what I heard that day, sir.
 Q  You had examined the weapons, have you not, which have been introduced into evidence?
 A  I haven't examined them, sir, but I have seen them, yes, sir
 Q  You have weapons' training as an FBI Agent?
{1977}
 A  Yes, sir.
 Q  Are any of those weapons automatic weapons?
 A  I would have to look at the weapons, sir, that have been introduced.
 MR. TAIKEFF:  May the witness do so, your Honor?
 THE COURT:  You may.
 (Witness leaves witness stand and returns.)
 A  Yes, sir, there are two automatic weapons, sir.
 Q  (By Mr. Taikeff) Automatic weapons?
 A  Yes, sir.
 Q  Would you be kind enough to tell us the exhibit numbers -- do you mean semi-automatic or automatic?
 A  I didn't look at the exhibit numbers, sir; but the one that is on the top appears to be an automatic weapon, and the second one, I believe, can be fired in either a semi-automatic or an automatic position. I don't know that for a fact, but I think so.
 Q  Did you see any of those weapons before you testified yesterday?
 A  Yes, sir.
 Q  Now, do I understand that you distinguish between a weapon which is automatic and a weapon which is semi-automatic, as being two different kinds of weapon as far as mode of fire is concerned?
 A  Yes, sir.
{1978}
 Q  Now, a semi-automatic weapon is one that doesn't require any movement of the bolt manually but does require a separate pull of the trigger every time you want a bullet to come out, correct?
 A  That's correct, sir.
 Q  Now, when you looked at those weapons before you testified, was it then your belief, as it is now, that two of those weapons were automatic weapons? "Yes" or "no".
 A  When I first saw those automatic weapons, I knew they were automatic weapons, yes, sir.
 Q  I see. Would be kind enough to take those weapons off the rack?
 MR. TAIKEFF:  If he may, your Honor.
 THE COURT:  You may step down.
 (Witness leaves witness stand and returns.)
 MR. TAIKEFF:  The witness is holding Government Exhibit 37-A and 34-AA.
 Q  (By Mr. Taikeff) Now, the larger weapon, 34-AA, do you know what that is?
 A  I know it is a .45 caliber.
 Q  No, the larger one. I don't mean the larger caliber. I mean the longer one.
 A  This one here, sir?
 Q  Yes.
 A  It is an AR-15.
{1979}
 Q  What is an AR-15, is that a semi-automatic or an automatic weapon?
 A  I could be fired in either position, sir.
 Q  Is there a selector switch on there?
 A  Yes, sir.
 Q  Isn't it a fact, sir, that it is the military M-16 which is essentially identical to that which is an automatic weapon, and that the AR-15 is a civilian model which can be purchased in a hunting supply store or a gun store by an adult citizen?
 A  Well, the AR-15 looks like a M-16, but I don't know all of the differences between the two, sir.
 Q  O.k. Now, take a look at the other weapon.
 A  Yes, sir.
 Q  Isn't that a commercial .45 caliber weapon which is designed to resemble the famous Thompson sub-machine gun, but in fact is nothing more than a semi-automatic rifle with a long clip?
 A  I don't know whether this is semi-automatic. I said it appeared to me to be an automatic weapon.
 MR. TAIKEFF:  I am wondering whether at this time, your Honor, the Government will stipulate that both of those weapons are semi-automatic weapons?
 MR. HULTMAN:  I probably will, your Honor, after I have a chance to voir dire on just one question or two, at the most, of this witness.
{1980}
 MR. TAIKEFF:  All right.
 MR. HULTMAN:  Mr. Waring, do you know whether or not, by a very simple manipulation such as the shaving of the shear pin on a semi-automatic weapon, if you can make it automatic?
 THE WITNESS:  I don't know if that's so, sir.
 MR. HULTMAN:  Secondly, are you an expert of any kind on firearms?
 THE WITNESS:  No, sir.
 MR. HULTMAN:  Is it your opinion that you are giving here the best of your opinion?
 THE WITNESS:  Yes, sir.
 MR. HULTMAN:  All right, and not based on any scientific knowledge or any specific examination other than as cursory here in the courtroom?
 THE WITNESS:  That's correct, sir.
 MR. HULTMAN:  Your Honor, the Government -- and counsel has known from the beginning that there is no weapons that have been introduced as exhibits that are technically automatic weapons, and no such claim at any time; and further the record will show that the additional questions on direct examination that were asked of this witness so indicated that.
 MR. TAIKEFF:  Your Honor, there is no dispute about that. I was just exploring this witness' understanding {1981} which may have been a mistaken one, in connection with his testimony, that's all.
 Q  (By Mr. Taikeff) Now, sir, is it not a fact that the reason you testified on direct examination that you heard automatic weapons firing was because you thought that those two guns were automatic weapons and not because you heard anything like that at that place at that time?
 A  That's not correct, sir.
 Q  You consider yourself a careful, competent law enforcement officer?
 A  Yes, sir, I try to be.
 Q  You told us yesterday that 302's should record what in the opinion of the agent who offers them are all the important details and facts concerning the event, is that right?
 A  Yes, sir. I believe I said at the time when they are recorded, what I believed to be the significant facts at that time.
 Q  Don't you think that the presence of automatic weapons, military type weapons in the hands of civilians in connection with an incident like this is an important fact?
 A  More observation than fact, sir.
 Q  I asked you, sir, whether you would consider such a fact a significant fact?
 A  If I just saw the weapons being fired, yes, sir.
 Q  Don't you trust your eyes and your ears also?
{1982}
 A  I trust my ears, but I trust my eyes more so.
 Q  If you thought you heard automatic weapons fired, coming from one or more civilians, non-law enforcement people, wouldn't you as a law enforcement officer think of that as a significant fact? "Yes" or "no".
 A  Yes, sir.
 MR. HULTMAN:  Your Honor, I object.
 MR. TAIKEFF:  He has answered the question, your Honor. I would like to proceed.
 MR. HULTMAN:  Well, counsel, if I don't have an opportunity to make an objection, go ahead and proceed.
 Q  (By Mr. Taikeff) Would you please tell us on what page in your 302 you make a reference to that significant fact (handing)?
 A  I did not make reference to it in my 302, sir.
 MR. TAIKEFF:  Does Mr. Hultman have an objection, now, your Honor?
 MR. HULTMAN:  Proceed, counsel. I will make my objections, not have you decide when I am going to make them.
 Q  (By Mr. Taikeff) Now, sir, I am going to refer to Government Exhibit 71. There came a time shortly after your arrival on the scene when you found yourself in the vicinity of Agent Adams, somewhere near Highway 18 in the upper left-hand portion of 71, correct?
{1983}
 A  Yes, sir.
 Q  And then there followed this activity by one routing or another, I think you said this path which is about three or four inches to the right of the left-hand edge and is shown with dotted lines, you worked your way down into the woods, some of which can be seen in the lower left-hand corner of 71, is that correct?
 A  Yes, sir. I didn't say that I traveled down that path. I said some members of the group. We were spread out from that path, going over past the edge of the map.
 Q  All right. I hope that I indicated that I was uncertain about the exact path, but generally speaking, you moved in a westerly direction from where Adams was, down into the woods or near the creek; and that is depicted generally in the lower left-hand corner of 71, is that right?
 A  Yes, sir.
 Q  Now, is it true or is it false, that while moving along the creekbed, sporadic firing could be heard in the distance in the direction of Special Agent Adams and Special Agent Breci?
 A  That's true, sir.
 Q  Now, would you explain whether that fact, which you said is true, means that firing was coming from where they were or that firing was going to where they were?
 A  The only thing I meant by that was that the fire was back to the east of my location at that point, sir.
{1984}
 Q  Well, what did you mean when you chose the words "in the direction", meaning that the sound was coming from that direction?
 A  Meaning that the sound was at that point then east of where I was located down there in the creekbed, that I just used that previous position as a reference point.
 Q  I see. Then I assume that you couldn't say whether it was Adams and any other law enforcement agent shooting in a southerly direction, correct?
 A  That's correct, sir.
 Q  Nor could you say whether it was one or more other people from any number of locations shooting in any particular direction?
 A  That's correct, sir.
 Q  So basically all you heard was shots east of where you were?
 A  Yes, sir.
 Q  And that could have been up here by Highway 18 (indicating)?
 A  Permit me, sir, could have been anywhere generally.
 Q  I want to ask you about specific locations. I do want to ask you about specific locations. Could it have been up by Highway 18?
 A  Could have been.
 Q  Could it have been from Jumping Bull Hall?
 A  Could have been.
{1985}
 Q  Could have been from the area of the residences?
 A  Yes, sir.
 Q  And possibly other places?
 A  To the east of where I was, sir.
 Q  Well, when you say "to the east" --
 A  (Interrupting) That general area.
 Q  (Continuing) -- above the lower edge of the chart and perhaps above the center line of the chart, going from left to right?
 A  Yes, sir.
 Q  The eastern half of the chart.
 How many shots did you hear?
 A  I didn't count them, sir.
 Q  Can you give us some idea, order of magnitude, are you talking about two, are you talking about something like 20?
 A  I couldn't guess the number, sir. It was just periodic, sporadic.
{1986}
 Q  When you were with Agent Adams there was some evidence of shooting, was there not?
 A  Well, I never was right with Agent Adams. I was some distance from him, but there was shooting, yes, sir.
 Q  Well, when you were relatively close to Agent Adams, I didn't mean that you were necessarily shoulder to shoulder, there was evidence of shooting, right?
 A  In our direction, yes, sir.
 Q  Now, what was the evidence that the shooting was in your direction?
 A  I could hear the bullets going over my head, sir.
 Q  Hear any bullets impacting on the ground around you?
 A  Yes, sir. There was some hitting on the hill.
 Q  Did you hear any other shooting that might not have been directed at you?
 A  Well, I could hear shots being fired, and I was only interested in the ones that were coming close to me at that point.
 Q  I readily understand that. My question is:  Did you hear other shooting which you could not identify as being shots specifically coming overhead or in your general vicinity?
 A  I would say that every time I heard a shot, I can't say if a bullet came in my direction, no, sir.
 Q  But there were some times when you knew for sure?
 A  Absolutely, sir.
{1987}
 Q  And there were other times when you couldn't tell which way it was going or where it came from; isn't that correct?
 A  That's correct, sir.
 Q  Could you identify for the Court and jury specific places that you have personal knowledge of from which shooting by non-law enforcement people occurred that afternoon?
 A  Yes, sir.
 Q  Would you be kind enough to do that?
 A  Yes, sir.
 It would have been when initially when I pulled out into the area at this location (indicating).
 Q  That's the so-called Adams' location, just for a shorthand?
 A  Yes, sir.
 Q  All right.
 A  Okay. Bullets were hitting into the hill, but like I said going over my head at that point.
 Q  Now, wait, let me stop you.
 A  Okay, sir.
 Q  Now, I want to know where that shooting was coming from.
 A  It was coming from the vicinity of this area right in here (indicating).
 Q  How do you know?
 A  Because that's the general direction where the shots were being fired from.
 Q  How do you know?
{1988}
 A  From my hearing.
 Q  How do you know that that shooting wasn't coming from Jumping Bull Hall?
 A  Because I was right here, sir, laying up in this high ground right here (indicating) and if the shots were coming from here it would come from this way instead of hitting over this way (indicating).
 Q  You mean when the shot hit the ground you could tell the direction from which it came?
 A  Well, I could tell the general noise level was down in here, and that the bullets were going over my head and hitting around me there.
 Q  I'm not disputing with you that you heard noise coming from this area. I want to know what observations you made when you were at the so-called Adams' position and bullets were either whizzing overhead or digging into the ground and making some sort of a noise that permitted you to know the direction from which that shot came.
 A  Just an observation that I made at that point. That's what I felt at that point, sir.
 Q  That was your belief at that time?
 A  Absolutely, sir.
 Q  Could you tell us what if anything you observed with your eyes or ears or otherwise that would indicate to you that the shooting had not come from, let's say, back up here on the plain {1989} (indicating)?
 A  Nothing that I observed, sir.
 Q  Could you discount that possibility that some of the shots that were whizzing over your head or hitting the ground came from up here (indicating), and for the benefit of the record I'm talking about a place which is close to the curved line that say "crest of plateau", to the left about six inches of the word "of". Could you discount that possibility?
 A  No, sir.
 Q  Could you discount the possibility that shooting came from this point right here (indicating), which is about four and a half inches to the left of the lower left-hand corner of the plowed field. That is immediately to the right of the word "crest". How about that location, could you discount that as a possibility?
 A  Discount that now, sir because this sits low, you'd have to shoot over high ground if you know where.
 Q  Could you stand on something and shoot?
 A  You're up on the crest, you're up here on the top. If you're level ground essentially --
 Q  Any where along that crest a person could be shooting and land shots up here at the Adams' location; isn't that correct?
 A  That could have been, yes, sir.
 THE COURT:  Court is in recess until 11:00 o'clock.
 (Recess taken.)
{1990}
 THE COURT:  Counsel ready for the jury?
 MR. TAIKEFF:  Yes, Your Honor.
 THE COURT:  Jury may come in.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 MR. TAIKEFF:  May I proceed, Your Honor?
 THE COURT:  You may proceed.
 Q  (By Mr. Taikeff) Mr. Waring, I think we were trying to identify the various places from which, based on your own observations, you believe firing was coming, non-law enforcement firing that day, am I correct about that?
 A  Yes, sir.
 Q  And I believe we got the point where you had talked about investigating fire at the Adams location, and then we got to discussing this high ground here around the crest of the plateau, and I think at that point the Judge called a recess. Is your memory the same as mine?
 A  Yes, sir.
 Q  Now, would you be kind enough to indicate to the Court and jury any other locations that you have a belief based on your own observations was a place from which non-law enforcement firing was coming.
 A  Sir, it would have been right at this approximate point (indicating).
 Q  Now, you are referring to a location that has been previously {1991} marked?
 A  Z-1, sir.
 Q  Z-1. And where were you when you made whatever observations provide the basis for that conclusion?
 A  At that time I had just walked out from some brush cover, tree cover.
 Q  Immediately adjacent?
 A  Just took a few steps out into the open.
 Q  And then what did you observe?
 A  I heard a rifle fire and I took cover.
 Q  Now, can you point to where you were at that time.
 A  Well, approximately it would have been right out here (indicating), just out in these trees.
 Q  Okay. I may have misunderstood you. When you pointed to Z-1 you meant that's where you were?
 A  That's where the group was that I was with. We were gathered at that point, sir.
 Q  But I'm talking about the location from which firing came. Can you tell us where that shot came from?
 A  Not exactly. The sound was up in this area (indicating).
 Q  All right. May I indicate for the record that you've pointed to a place along the line marked "crest" and roughly on the bisector of the "Y" intersection. Is that a fair description? Bisector being the line that equally divides those two roads.
 A  It's this general vicinity. I didn't see the fire.
{1992}
 Q  I understand. I'm just describing the place on the chart that you pointed to so the record is complete.
 Do you have any quarrel with my description?
 A  No, sir.
 Q  Okay. Any other locations that you can identify as places where non-law enforcement firing came during the course of that afternoon from the time you got there until all firing had ceased?
 A  Yes, sir. Shortly after that one shot was fired. We moved down just a little bit and two individuals appeared at the, it was marked the green house, right on this side (indicating) and rifle fire between our group and those two individuals.
 Q  Am I correct, sir, that when you said "this side," you were at that time pointing to the south side of the building?
 A  It was right there at the, what I would call the northeast corner, just out from the house a few feet, sir.
 Q  Did you see that individual?
 A  I saw two individuals, sir.
 Q  Did you see those individuals?
 A  Yes, sir.
 Q  With your naked eye?
 A  Yes, sir.
 Q  How were they dressed?
 A  One had a dark top, dark trousers and the other had a white, I believe it was a "T" shirt.
{1993}
 Q  Could it have been a regular shirt?
 A  When I saw it then I thought it was a "T" shirt, sir.
 Q  At or about that time did anyone in your group or near your group say something about having hit one of those people with fire, with bullets?
 A  Yes, sir. There was a brief exchange of gunfire. An individual to my right yelled, "I think I've hit one."
 Q  Did he say which one?
 A  No, sir.
 Q  Are there any other places where you think or believe firing came from?
 A  Yes, sir. Again when I was at Z-2, which is the location where I was observing Agent Coler's car from the tree, it was at that point that we had another brief exchange of gunfire from an individual now on the west side of the green house.
 Q  Any other locations?
 A  The next time that rounds came near me, sir, is when I left point Z-3, proceeded up toward the green house.
 Q  And do you know the location from which those shots came?
 A  At that time I believed them to be coming from this plateau up here. But I didn't see them being fired.
 Q  I gather then your belief was based upon your earlier observations as opposed to what you were then seeing?
 A  Yes, sir. And also the sound and the rounds were coming.
 Q  Are they any other places from which you heard firing that {1994} you believe or know to be non-law enforcement firing?
 A  Yes, sir. Later on in the day after we believed that the area was secure and we hadn't found any individuals up there, with the exception of the body of Joseph Stuntz, that there was one round of fire that came in and hit into something in the vicinity of the houses.
 Q  Do you know where that came from?
 A  No, sir, I have no idea.
 Q  Approximately what time of day was that?
 A  Would have been approximately 6:00 P.M.
 Q  Did you hear the report of that round when it was fired as opposed to the sound when it came into your area?
 A  No, sir, not at that time.
 Q  So what you heard was either the bullet impacting or passing overhead.
 A  It hit something, sir, and that's when I hit the ground.
 Q  Okay. Then would you be kind enough to resume your seat.
 And let's go back to the person or persons who appeared, did you say, at the northeast corner of that house?
 A  Yes, sir. That's the approximate locating. They were standing out a few feet from the house.
 Q  And I may have asked you this before, but frankly I forgot if you answered, what time of day would you say that was? About 2:30?
 A  It would have been sometime shortly after arriving in the {1995} area. Between 2:00 and 2:15.
 Q  Now, when you finally saw the body of Joe Stuntz where was it lying?
 A  Right where I indicated yesterday, sir. Right again what I described as the northeast corner of the green house, sir.
 Q  So I gather then that sometime between 2:00 and 2:30 approximately, I have no intention of pinning you down to time here, you made an observation of two people, one of whom was wearing a light colored top which you believed to be a "T" shirt; is that correct?
 A  Yes, sir.
 Q  And that there was an exchange of fire between your group and perhaps both of the individuals spotted at or about that time?
 A  Yes, sir.
 Q  And one of the people in your group of law enforcement officers said something about I think I got one of them, or words to that effect?
 A  I believe he said, "I think I've hit one of them."
 Q  Okay. And those people, non-law enforcement people were in the vicinity of the house at a point that you describe as the northeast corner of the house; is that right?
 A  Yes, sir.
 Q  And that later it was at that same location that you found {1996} the body of Joe Stuntz?
 A  Yes, sir.
 Q  Now, isn't it a fact that the person who said something about believing that he hit one of those two people not only said that, but indicated that he thought he hit the guy with the white top?
 A  He didn't indicate either way, sir.
 Q  Did you not put in your 302 a statement to that effect?
 A  I'd have to see my 302 to recall exactly. But I believe there was another individual that yelled, "The guy in the white shirt is hit also."
 Q  Okay.
 A  Or words that effect. But I'd have to see it.
 Q  That's what I'm asking you about.
 Now, you saw the body of Joe Stuntz personally, did you not?
 A  Yes, sir.
 Q  And what was he wearing?
 A  He had on a FBI U.S. Army-type fatigue jacket.
{1997}
 Q  And under that he was naked?
 A  No, sir.
 Q  What was he wearing under the jacket?
 A  He had on a, at this time I can recall he had a light colored shirt on.
 Q  Was it not a white shirt with a very, very pale print on it?
 A  I don't know sir. I'd have to see the photograph.
 Q  All right. I'll show them to you.
 I am now placing before you Government Exhibit 54 to which I have turned the page designated 16 and I call your attention to photographs B, C and D on that page and in addition I place before you Government Exhibit 23. My preliminary question is whether 23 appears to be a blowup, in particular of photograph D for David?
 A  Yes, sir.
 Q  Now, sir, is it fair to say that underneath the FBI S.W.A.T. team jacket Joe Stuntz is wearing a white or very light colored shirt? Yes or no?
 A  Yes, sir.
 Q  Beginning at what time of the day on June 26, 1975 did you hear any radio transmission which you believe to be and now believe to be those of Williams or Adams?
 A  I can't give you a time, sir. It was, I left the motel between 11:00 and 11:15 A.M. that morning. It would have been {1998} approximately half the distance to the Pine Ridge Indian village.
 Q  Give us your best estimate of the time. I do not intend to pin you down to the minute or even to the nearest five minutes. I want a rough idea.
 A  It would have been sometime between 11:30 and noon time.
 Q  Okay.
 But surely by noon you were hearing those transmissions?
 A  Yes, sir.
 Q  What time did you arrive at the scene, first arrive at the scene?
 A  I don't know, sir.
 Q  What's your best estimate?
 A  Be hard for me to estimate at this time because I wasn't paying attention at all to time right at that particular instant
 Q  Well, you got there before 12:30, did you not?
 A  Oh, yes, sir.
 Q  Could you say how much before 12:30?
 A  Not really, sir.
 Q  When you pulled up into the vicinity where Agent Adams was, were you able to communicate with him on your FBI radio?
 A  Yes, sir.
 Q  Did you communicate with him on your FBI radio?
{1999}
 A  I notified him that we were --
 Q  I didn't ask you what you said, just whether you communicated with him on your FBI radio.
 A  Yes, sir. Briefly.
 Q  And were you able to hear any transmissions that he was making?
 A  Just the one that he acknowledged to me.
 Q  That's the only one you heard?
 A  Yes, sir.
 Q  At or about 12:18 P.M. did you hear Special Agent Adams say anything to the effect that he's on the scene and has been receiving heavy fire from the vicinity of Jumping Bull Hall?
 MR. HULTMAN:  Your Honor, I only enter an objection on the grounds that part of the question, that there is no basis at all foundationwise. This witness has been asked as to times. He's clearly given his best estimate and now Counsel is using an exact time, 12:18, and I object to that part of the question. This is improper. This witness has indicated he didn't know any times during this period of time. I have no objection if he asks him whether he heard a transmission but I do object when using a specific time because the questioning is clearly laid. No foundation that this witness can say anything about 12:18, and in fact his earlier statement was he wasn't going to tie this witness down or even try to tie him down to a specific time.
{2000}
 MR. TAIKEFF:  As to whether he arrived on the scene or first heard the transmissions and I stand by that. I was only trying to get a general focus.
 THE COURT:  Will the reporter read the question back, please.
 (Whereupon, the last question was read back.)
 THE COURT:  I think the witness can answer that question.
 A  No, sir. I didn't hear him say that.
 Q  (By Mr. Taikeff) Now it is correct to say, is it not, that that is Jumping Bull Hall, right (indicating)?
 A  Yes, sir.
 Q  And that's the area you said no firing came from, right?
 A  I didn't --
 MR. HULTMAN:  Just a minute, Your Honor. Just a second. I'd like the statement by Counsel read back to me he just now stated. I'm not sure whether I was hearing what he said or not.
 MR. TAIKEFF:  You want me to repeat it?
 MR. HULTMAN:  I'd like to hear it back from the reporter.
 THE COURT:  The reporter may read the question.
 (Whereupon, the following questions and answers were read back:  Q Now it correct to say, is it not, that that is Jumping Bull Hall, right (indicating)? A Yes, sir. Q And that's the area you said no firing came from, right? A I didn't --
{2001}
 MR. HULTMAN:  I withdraw my objection, Counsel. I couldn't hear.
 THE COURT:  You may answer the question.
 MR. TAIKEFF:  Your Honor, for clarification, I think I understand what Mr. Hultman was concerned about.
 Q  (By Mr. Taikeff) When I made reference to your statement, possible statement there was no firing coming from that direction, I was referring to your earlier testimony.
 MR. HULTMAN:  Yes.
 Q  (By Mr. Taikeff) When you were up in the Adams' location. Did you say concerning Adams' location in your presence there that you didn't believe any firing was coming from Jumping Bull Hall?
 A  Yes, sir.
 MR. TAIKEFF:  Okay?
 MR. HULTMAN:  Clear.
 Q  (By Mr. Taikeff) Did you at any time before you were joined by Special Agent Price and Special Agent Hughes hear on the FBI radio by either Agent Adams or someone else that there was a red pickup leaving Jumping Bull Hall area going north and a suggestion that the Pine Ridge police were to stop that particular vehicle?
 A  No, sir.
 Q  Have you had occasion, sir, to take a look at the model which I think is Government Exhibit 20?
{2002}
 A  Yes, sir. I've seen it before.
 Q  And what's the total amount of time that you personally spent in the area which is designated by the center of Exhibit 71? I'm referring to that circular road area, the houses around it, et cetera, total amount of personal experience you have being on that scene?
 A  I would say an estimate would be just a few hours.
 Q  As far as you're concerned is Government's Exhibit 20 a reasonably fair representation of that area looks like and the interrelationship between the parts? I'm not asking you for scientific accuracy, just general qualitative appearance.
 A  Yes, sir.
 Q  Isn't it a fact though that the houses which are on that model appear to be in much finer repair than the actual structures as seen by the naked eye when one is present at that location?
 A  Yes, sir.
 Q  In fact, they show evidence of being in rather bad condition, isn't that a fact?
 A  Yes, sir.
 Q  I show you what has been marked Defendant's Exhibit 133 for identification. It's not in evidence, should not be displayed to the jury.
 MR. HULTMAN:  Your Honor, I would indicate at this time to Counsel this is an exhibit which was provided to the {2003} defendant and if Counsel wants to mark it and introduce it at this time for the purposes that it is photographs of specific buildings and a general drawing, the government has no objection and Counsel could then proceed accordingly.
 MR. TAIKEFF:  Yes, Your Honor. It was supplied to us by the government and we do offer it pursuant to that proposal.
 THE COURT:  133?
 MR. TAIKEFF:  Yes, Your Honor.
 THE COURT:  Exhibit 133 is received.
 Q  (By Mr. TAikeff) Now I would ask you whether the diagram reproduces the central part of Exhibit 71 and depicts with photographs that have been incorporated the various buildings which you have referred to in your testimony, or the various buildings which are actually located there.
 A  Yes, sir.
 Q  And do those photographs fairly represent the way those buildings looks?
 A  Yes.
 Q  On or about June 26th, 1975?
 A  Yes, sir.
 MR. TAIKEFF:  May I have a moment to circulate this amongst the jurors, Your Honor?
 THE COURT:  You may.
{2004}
 MR. TAIKEFF:  Thank you.
 (Exhibit presented to jurors.)
 MR. TAIKEFF:  Is it Your Honor's practice not to have testimony while something is circulating?
 THE COURT:  Yes.
 MR. TAIKEFF:  Thank you.
 Q  (By Mr. TAikeff) Mr. Waring, at approximately what time did you first enter the woods at the lower left-hand corner of Government 71?
 A  It would have been shortly after 1:00 P.M. sometime.
 Q  In your direct testimony you said, did you not, that sometime that afternoon you heard explosions?
 A  Yes, sir.
 Q  I think you described them as dynamite explosions?
 A  That's what I believed them to be at that time; yes, sir.
 Q  Did you consider that observation to be important?
 A  Yes, sir.
 Q  Could you tell me on what page your 302 reference is made to that?
 A  It's not, sir.
 Q  Approximately what time did you get to location "Z1" up near the Y intersection?
 A  It would have been approximately 2:00 P.M. to 2:15 P.M., sir.
 Q  And from that vantage point could you show or tell us what your perspective was, what you could see looking in {2005} different directions. I'm not interested in the specific things you may have seen as much as I am in how far you could see generally in different directions.
 A  I could see the ground going to the green residence, the crest of that hill, the slope towards me which was, would come down on that little road that goes by "Z1." I could turn back and see basically across the plowed field area.
 Q  Into the trees?
 A  And then into the trees.
 Q  Okay.
 That takes care of roughly north through southeast or maybe even south southeast. How about counterclockwise from north, what were your perceptions from that vantage point?
 A  What I just stated was about all I could see. You can't see on that, once you've hit the crest where it's marked "crested plateau," you can't see on top of that plateau from where I was. I couldn't see down across the open field.
 Q  Which open field are you talking about?
 A  Talking about the field now that comes back towards Agent Coler's car. Not from that position.
 Q  You couldn't see the car?
 A  Not from there; no, sir.
 Q  Okay.
 MR. TAIKEFF:  Excuse me one moment, please. May I {2006} confer with one of my colleagues, Your Honor?
 THE COURT:  You may.
{2007}
 Q  (By Mr. Taikeff) I may not be precisely right, but I think on your direct examination you were asked whether you were SWAT trained, am I right about that question being put to you?
 A  Yes, sir.
 Q  Briefly -- I think you said "no", is that correct?
 A  That's correct, sir.
 Q  Briefly, what does that mean, SWAT training?
 A  It is a specially trained tactical group of men.
 Q  Do they learn how to handle special kinds of weapons?
 A  Yes, sir.
 Q  What kinds of weapons?
 A  I believe they have a tear gas gun and a M-16 rifle, sir.
 Q  That's an automatic weapon?
 A  It is either semi-automatic or automatic.
 Q  That is to say, the same weapon can be used either semi-automatically or fully automatically?
 A  Yes, sir.
 Q  By throwing a switch on the outside or a lever?
 A  Yes, sir.
 Q  And the jacket that was found on Mr. Stuntz is the kind of jacket that is issued to FBI SWAT team members, is it not?
 A  Yes, sir, it is a fatigue jacket.
 Q  Now, I draw your attention to the area immediately surrounding Point Z-1, I think you told us that there was some {2008} junk cars up there?
 A  No, sir, not at Z-1.
 Q  Not exactly at Z-1, I mean in that vicinity, I stand corrected on that.
 A  May I go to the board, sir?
 Q  Yes. I think what you are referring to here is this group of cars (indicating) which seems to have a "93" within the circle, is that correct?
 A  Yes, sir.
 Q  I ask you whether Exhibit 93 in evidence is a photograph taken in the immediate vicinity of the junked cars with the camera looking roughly northeast?
 A  (Examining) If this was taken of those cars, that should be the ones. I am not sure because I didn't look at the cars.
 Q  All right. Can you identify the scene for us?
 A  Well, if this picture depicts that line of junked cars, I would say that would be it.
 Q  I understand that's a big "if". That's what I am trying to find out from you.
 Based on your observations, both there and here, would you be prepared to say that that photograph is a view taken, as I suggested before, from behind the junked cars looking northeast?
 Q  (Examining) Do you have another photograph that shows more background? I can't necessarily tell from this. If those {2009} were the cars, I did not examine them.
 Q  O.k., thank you.
 Am I correct in stating that -- as being your testimony and is your testimony, that when you were in the Gary Adams' location or area, you could not see anyone who may have been shooting from the vicinity of the residences or that you did not, did not see anyone?
 A  That's correct, sir.
 Q  You had at the time some belief that that was either the specific location or the general location from which shooting was coming, right?
 A  Yes, sir.
 Q  But when you looked with the naked eye, you could not see anyone, correct?
 A  I didn't look very long, sir, because of the rounds that were coming in over my head.
 Q  But you did look?
 A  Quickly, sir.
 Q  And you did not see anyone?
 A  No, sir.
 Q  Did you lift up your rifle with the telescopic sight on it and attempt to see whether you could see who or what was at the location from which you thought the shooting was coming?
 A  No, sir.
 Q  Why not?
{2010}
 A  Because the grass was rather high in there, and if I had to get above the grass with the rifle to look down range, I would have been relatively exposed.
 Q  Couldn't do that by standing behind the car, could you?
 A  The car was behind a small rise in the ground. I couldn't see down range at all from the car, sir.
 Q  You couldn't get behind that rise and just position yourself so that only the rifle was sticking out of the grass, see where the shooting was coming from?
 A  No, sir.
 Q  What kind of a rifle were you carrying?
 A  Had a 3.08.
 Q  And what kind of a scope did it have?
 A  It has a telescopic scope.
 Q  Any special characteristics?
 A  If you are referring to what power, I have no idea what power that particular scope is.
 Q  Was it a variable power scope that permitted you, by rotating a ring or some other device, to vary the power with which it worked?
 A  I didn't vary the power on it, and I don't believe it does.
 Q  But it was a 3.08 caliber?
 A  Yes, sir.
 Q  Manufacturer's name, do you know that?
{2011}
 A  No, sir.
 Q  Was it a bolt action?
 A  No, sir. It is a slide action.
 Q  Do you want to say something?
 A  I was going to say, more clearly it is a pump type action.
 Q  In your opinion was the scope capable of assisting you in seeing from where you were to the houses?
 A  If I would have been able to position myself and hold it steady, I believe I could see that range, yes, sir.
 Q  And in fact, it was a high-powered scope, was it not, even though you don't know the exact magnification?
 A  That's correct, sir. It is referred to as that.
 Q  Now, in addition to the 302 relating to the events from the morning until roughly 6:00 or 6:30 in the evening, you put your initials on another 302 which, I believe, could be referred to as a report of a crime scene examination, is that correct?
 A  Could I see the report, sir?
 Q  Yes, I would be happy to show it to you. I would just like to know whether of your own memory you could answer that question.
 A  I have initialed a lot of 302's, and the one I believe you are referring to I did initial.
 Q  You are thinking about a crime scene examination report, are you not?
 A  Yes, sir.
{2012}
 Q  Tell me whether it is Defendant's Exhibit 84 for identification (handing).
 A  (Examining) Yes, sir.
 Q  Did you read that before you initialed it?
 A  Yes, sir.
 Q  Is it your practice to initial 302's after you have read them and satisfied yourself that as of that time there are no mistakes, errors, oversights, et cetera?
 A  Yes, sir. I checked it for accuracy concerning the examination and how it is set forth there, yes, sir.
 MR. HULTMAN:  Counsel, could I look at 84 to see what exhibit we are talking about?
 MR. TAIKEFF:  Here it is (handing).
 MR. HULTMAN:  (Examining) Fine.
 Q  (By Mr. Taikeff) Now, as you sit there and without the benefit of seeing the exhibit which I have taken back from you, can you tell us on what day you dictated that report -- withdraw it.
 I understand you did not personally dictate that report, is that correct?
 A  That's correct, sir.
 Q  Could you say on what date you reviewed that report before putting your initials on it?
 A  No, sir.
 Q  Could you say as of what date, could you say what is the {2013} earliest date on which you might have seen that report?
 A  It would have to be sometime after it was dictated and then typed, sir.
 Q  Can you say when it was dictated and typed?
 A  Not without looking at it, sir.
 Q  All right. I will show it to you again (handing).
 A  (Examining) Yes, sir. If these are accurate, it says the 28th of June, 1975, that it was both dictated and transcribed.
 Q  All right. I understand, sir, what it says, and I understand that if what it says is accurate, then it states a fact; but that wasn't my question.
 My question is:  Can you tell us, based on whatever you deem an appropriate basis, when that report was prepared or when you first saw it?
 A  Well, I know that it had to be prepared sometime after the crime scene search itself.
 Q  All right. I think --
 A  (Interrupting) But I have no --
 Q  (Continuing) -- it is clear.
 A  I have no personal knowledge. I wasn't there when the agent that dictated that report dictated it to a stenographer.
 Q  Well, in looking at the report, you find, do you not, that the date of transcription is listed as June 28th, 1975, and the date dictated, June 28th, 1975; and the date of the events, June 26, 1975, isn't that correct?
{2014}
 A  Yes, sir.
 Q  And do you have any basis for believing that those dates are incorrect?
 A  No, sir.
 Q  Do you know whether anyone made notes of any kind which were used in connection with the writing, the preparation of Defendant's Exhibit 84?
 A  No, sir.
 Q  Do you have any knowledge whether it was done strictly from memory?
 A  No, sir.
 Q  Now, you identified certain physical exhibits which were offered in evidence yesterday and which contained the little slips of white paper, correct?
 A  Yes, sir.
 Q  And those were slips of paper which you had some involvement in either writing or marking in some way, isn't that correct?
 A  Yes, sir.
 Q  Generally speaking, those slips of paper indicated what was found, roughly where it was found, and then there are initials of various one or more people, is that right?
 A  That's correct, sir.
 Q  That was a way of helping you keep track of what you found that afternoon or that evening in connection with your crime {2015} scene examination, right?
 A  Yes, sir. When we pick up the evidence, we put these pieces of paper with our initials in there and the description, so that they can be maintained separately from all other evidence that is described.
 Q  As a rule, it is a practice amongst law enforcement authorities to put some mark on a piece of real evidence so that at a later date in court a person can identify the object in court as being the same object as was originally found, isn't that generally true?
 A  No, sir. It can be handled either way.
 Q  I am not saying that's the only one. I am saying that is one of the methods employed?
 A  Yes.
 Q  For instance, you put your initials on something, on the back of a piece of paper, and then later on if you see your initials, you have some belief that's the same piece of paper that you saw maybe two years ago?
 A  Yes, sir, that's one method.
 Q  You couldn't write, could you, on shell casings with either pen or pencil?
 A  That's correct.
 Q  So you wrote on a separate piece of paper and you keep the shell casing and the slip of paper together, and that's essentially much like writing right on the object?
{2016}
 A  Correct.
 MR. HULTMAN:  Counsel, could I interrupt?
 MR. TAIKEFF:  Yes.
 MR. HULTMAN:  May we approach the bench?
 THE COURT:  You may
 (Whereupon, the following proceedings were had at the bench:)
 MR. HULTMAN:  Your Honor, the reason why I have requested -- because I don't want to interrupt counsel's examination with any questions that's in any way going to take away from what his cross examination may be, so I thought we could clear the issue here.
 MR. TAIKEFF:  Much better during the preliminary phase than at the climax.
 MR. HULTMAN:  That's right. I am trying to abide by the general plan.
 MR. TAIKEFF:  Thank you.
 MR. HULTMAN:  It is my understanding, your Honor, that with the exception of six specific items that we have agreed that there would be no problems, issues concerning change from the time an object was found until it is introduced in effect, in evidence.
 MR. TAIKEFF:  Mr. Hultman is correct, and there is no challenge of that kind developing at this point. I want to assure you of that.
{2017}
 MR. LOWE:  As to the exhibits, is what we are talking about?
 MR. HULTMAN:  Yes. We can't talk about --
 MR. TAIKEFF:  (Interrupting) Mr. Hultman, I give you my assurance that nothing like that is coming. It is something entirely different.
 MR. HULTMAN:  Very good. I wanted to make sure.
 MR. TAIKEFF:  I appreciate your concern.
 THE COURT:  Very well.
 (Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
 Q  (By Mr. Taikeff) I think I was at the point where I was reviewing some of the field techniques which may have been employed, and my next question is this:
 If more than one set of initials is on the piece of paper, does that mean that more than one person participated in some way in the collection and retention of that evidence in the field?
 A  Yes, sir. That normally is the case of the agents that initialed or police officers, as the case may be, when they pick up that piece of evidence, it means that each was there to observe the location and the fact that it was being retained as evidence.
 Q  Now, when you read the report, the 302 which has been marked Defendant's Exhibit 84 for identification, were you {2018} satisfied that, to the extent that you had any knowledge on the subject, it was an accurate reflection of the crime scene examination as done by you and your colleagues whose names appear at the bottom of the report?
 A  Yes, sir. The particular parts of that crime scene search that I was involved in, yes, sir.
 Q  Right. Exhibit 84 does not present a picture of every single search that went on that day, correct?
 A  That's correct, sir.
 Q  It is just those activities which covered a certain area and were participated in by Agents Hughes, Taubert, Wiley, yourself and Price?
 A  Yes, sir.
 Q  Now, could you delineate with the pointer, or if you can do it more easily with words, the area that was enclosed -- withdraw it.
 Can you indicate on Exhibit 71 the area that you searched by showing us some shape that approximates the outer boundaries of the area that you and your colleagues searched that day?
 A  Yes, sir.
 Q  All right. Please understand that as you move your pointer, I will have to dictate into the record what you are doing. If you disagree with my description, would you please say so?
 A  Yes, sir. I was primarily concerned with the crime scene {2019} search in the vicinity of Agent Coler's car, and that would take in, I believe it was -- this was also an abandoned automobile, so go from that side.
 Q  North side?
 A  North side of the abandoned car, back up, I would estimate 20 to 30 yards to the east of the car, and approximately 20 yards out in the other directions, and anything from that area in toward Agent Coler's car.
 Q  Would you say that the distance between that emblem for a junked car and the center of Coler's car is somewhere in the vicinity of 60 feet or 20 yards?
 A  This represents -- I would say approximately.
 Q  Then would it be fair to say that you and your colleagues searched an area which would be described as follows:  A circle whose center was Coler's car and whose radius was 20 yards or whose diameter was 40 yards, is that a fair description of what you pointed out on the chart?
 A  That's the area, sir, that I personally was involved in.
{2020}
 Q  Did any of the agents whose names I mentioned assist you in that particular activity?
 A  The agents, the pieces of evidence that I found, whose ever initials are also there would have assisted me. But there were, the other agents were doing some other things.
 Q  When you say "the other agents," do you mean Hughes or Taubert or Wiley or Price or are you talking about all the other agents who were around the place?
 A  Those particular agents that are on that 302, sir.
 Q  How many of those, whose names I've read twice, assisted you in that circle that has been described?
 A  Well, that particular area that I described, we were all within that area.
 Q  Okay.
 A  At some time.
 Q  All right. Now, I don't know that you answered by question, whether my description was reasonably accurate. That circle that I described, is that reasonably accurate?
 A  As far as I'm concerned in my personal involvement, yes, sir.
 Q  Okay. And just to make sure that we have all the geometry pinned down, the emblem on 71 that represents a single junk car sits on the circumference of that circle?
 A  In that direction, yes, sir.
 Q  Yes. In a roughly north, northwesterly direction, right?
{2021}
 A  Yes, sir.
 Q  Okay. Now, that was one area that you searched. Approximately what time was that, sir?
 A  Would have been some time after 6:00 P.M. that night, sir.
 Q  By the way, do you recall what time it got dark that day?
 A  No, sir. It was late sometime.
 Q  About 9:00 o'clock?
 A  I'd say it would have to be sometime after 9:00.
 Q  And during the afternoon, let's say from 3:00 until 6:00, what were the general weather conditions?
 A  It was a clear, absolutely clear. If I recall the day it was no clouds and it was about 90 degrees?
 Q  Light was good?
 A  Excellent.
 Q  What other areas did you search?
 We'll do it the same way you did it before. You can use the pointer and I'll try to describe it for the record.
 Q  Well, on that particular day, sir, after just surveying the top of the plateau after we arrived and secured the residences, then I saw the body of Joseph Stuntz. That's when I left that area and walked back down and I was only concerned with the crime scene search of Agent Coler's car, or in that general area.
 Q  Now, you made a search, or more than one search at a later time; is that right?
{2022}
 A  Yes, sir.
 Q  And you wrote a separate report, a 302 concerning that, am I correct?
 A  Yes, sir.
 Q  And that's the one page document previously referred to as Defendant's Exhibit 125 for identification, is that not correct, sir?
 A  Yes, sir.
 Q  Now, with respect to the search which is reflected in 125 for identification, please tell us in the manner we used before what the total area was that you searched.
 A  I could show you. On that particular day I had walked across this field, and when I got in this general --
 Q  Let me just describe which field you are talking about. It's the field that separates Coler's car from the residences?
 A  That's correct, sir.
 Q  Okay. You walked in a --
 A  This was on June 28th.
 Q  Yes. Southerly direction roughly?
 A  Yes, sir. We came from over in here (indicating) just walking through this entire grassy area.
 Q  All right.
 A  And when I got over in this area (indicating) I just happened to be closer to where these abandoned cars sit and I noticed shell casings in the grass.
{2023}
 Q  All right. Do you know in connection with your official function whether anybody else searched the area around the junk cars, let's say within a circle that had a ten or fifteen or twenty yard radius with the junk cars at the center, do you know if anybody made a search of that area? And just to make sure that there's no misunderstanding, I'm going to move my hand on the chart, but I'm not going to cover the area that's wooded to show you what area I'm talking about (indicating).
 The circle somewhat like the one around Coler's car, but with the middle junk car at the center of the circle.
 MR. HULTMAN:  Might I ask just one question for purpose of, by voir dire for purpose of an objection, Your Honor?
 MR. TAIKEFF:  No objection, Your Honor.
 THE COURT:  You may.
 MR. HULTMAN:  I just ask you one question, Agent Waring. Was anybody else with you during the time that counsel has been referring to, or at any time during this period of time including down at the junk car area?
 THE WITNESS:  Yes, sir. There was Agent James Morton.
 MR. HULTMAN:  I have no further questions.
 Q  (By Mr. Taikeff) Now, did you search together that area around the junk cars?
 A  Yes, sir.
 Q  How far out from the junk cars did you go in making the {2024} search of that area? In other words, I'm trying to get an idea of how big a circle you took a close look at.
 A  Well, generally as I walked along that day Agent Morton and myself were some yards apart, a few yards apart, and as we walked along we just happened to notice those particular shell casings.
 MR. TAIKEFF:  Excuse me one moment. May I confer, Your Honor?
 THE COURT:  You may.
 (Defense counsel conferring.)
 Q  (By Mr. Taikeff) How much time did you and Agent Morton spend on June 28th searching around that area of the junk cars?
 A  It wasn't long, sir. As soon as we picked those up we marked them and just maintained them in a bag.
 Q  Did there come a time while you were on the scene at that immediate location that the two of you had any occasion to separate more than a few feet or a few yards.
 A  No, sir.
 Q  I'm talking about one of you going away someplace?
 A  No, sir.
 Q  Do you know whether Agent Morton wrote a 302 covering the same subject matter as your one page 302 which has been marked Defendant's Exhibit 125?
 A  If I can see that, I believe Agent Morton initialed that {2025} also.
 Q  In fact you are correct. My question is:  do you know whether he wrote a separate document?
 A  No, sir. He wouldn't because once we record it, be I dictate or be he dictate it, that's it. Essentially just the one document.
 Q  You are the one who dictated this; is that correct?
 A  Yes, sir.
 Q  And then both of you initialed because it reflected joint activities of the two of you?
 A  Yes, sir.
 Q  And then there would be no need for him to write the exact same thing on a separate piece of paper, is that what I understand?
 A  That's correct, sir.
 Q  Is it fair to say that you were thorough in your efforts to find anything that might in some way relate to the events of June 26th?
 A  Yes, sir. At that particular time it was the only thing I observed on the ground in that area.
 Q  Now, going back to the circle surrounding Coler's car. Can you tell us how many empty casings from either the shotgun, pistol, pistols, rifle or rifles of the agents were found within that circle twenty yards in radius?
 A  No, sir, I can't tell you.
 Q  Is that because you have no knowledge whatsoever or that you {2026} didn't count it?
 A  I've got knowledge of the three that I saw, I believe it was yesterday. That I picked up, that could have been shell casings from our weapons.
 Q  And do you recall what the caliber was of those particular shell casings?
 A  One was a 38 caliber from a handgun.
 Q  38 Special?
 A  Yes, sir.
 Q  Let's stop for a moment.
  A  .357 magnum is a handgun; is that correct?
 A  Yes, sir.
 Q  And the caliber of the bullet that goes through the barrel is the same caliber as a .38 Special?
 A  Well, it's .357. They call it .357 ammunition, sir.
 Q  But it's really the same caliber?
 A  Yes, sir.
 Q  In fact it would be fair to say that a .357 is a stepped up or souped up .38 Special?
 A  It's a heavier weapon, yes, sir.
 Q  You can fire .38 Special bullets from a .357 magnum, can't you?
 A  Yes, sir.
 Q  But not the other way around unless you want to blow your hand off?
{2027}
 A  That's correct, sir.
 Q  Now, you found how many .357 casings?
 A  I believe that particular shell I looked at was a, what they call a .38 plus "P".
 Q  I stand corrected, it was a .38 Special.
 MR. HULTMAN:  I did the same thing yesterday.
 MR. TAIKEFF:  Okay.
 Q  (By Mr. Taikeff) How many of those casings did you find?
 A  I found the one I marked for evidence.
 Q  Just one?
 A  Yes, sir.
 Q  Any of your colleagues find any others?
 A  I don't know, sir.
 MR. TAIKEFF:  May I have a moment, Your Honor, please?
 THE COURT:  You may.
 MR. TAIKEFF:  Could I have a moment to confer with Mr. Hultman, Your Honor?
 THE COURT:  You may.
 (Mr. Taikeff and Mr. Hultman conferred.)
 Q  (By Mr. Taikeff) Now, sir, I have in my hands Government Exhibit 30-AA and 36-A already in evidence. They are, are they not, in their general style and design similar looking weapons; is that correct?
 A  Yes, sir.
 Q  And they are what you call pump action guns?
{2028}
 A  Yes, sir.
 Q  When you pump the handle backwards it loads the chamber, cocks the gun, you push the slide forward, pull the trigger, it fires. So far am I correct?
 A  But when you bring it back it ejects the shell there --
 Q  I'm talking about the first shot.
 A  It reloads and cocks your weapon, yes, sir.
 Q  Then when you do it a second time as you bring the slide back a casing drops out or flies out and then on the forward stroke of the slide the next bullet or cartridge is picked up off the magazine and put into the firing chamber, the gun is cocked again. If you pull the trigger again it will shoot again?
 A  Yes, sir.
 Q  Both of these work essentially according to that general description?
 A  Yes, sir.
 Q  The one in my right hand, which is 36-A, is a shotgun?
 A  Yes, sir.
Q  The one in my left hand, which is 30-AA, is a rifle?
 A  Yes, sir.
 Q  Okay. How many discharged shotgun casings did you and your colleagues find within that circle surrounding Coler's car?
 A  I personally found the one that I initialed and if there {2029} are any others I'd have to look at that 302 related to the crime scene search to determine if any had been found.
 Q  All right. To save time would you be willing to look at this report during the lunch and recess if you're still under cross-examination at 12:30, and then report back to us on that subject later?
 A  Yes, sir.
 Q  Okay.
 MR. HULTMAN:  I have no objection, Counsel, if you know and it is in the report that you so indicate.
 MR. TAIKEFF:  I'm afraid that I would not take the responsibility for the many details which are in there. I don't want to make my assertion. I'll let the witness testify as to what he knows.
 Q  (By Mr. Taikeff) Now, I notice in the answers which you have given in the last three to five minutes you emphasis what you found. I don't quarrel with your statement that that's what you found. What I want to know is are you saying by that that it is your belief or understanding based on your official knowledge in your official capacity that other people in your group found other objects of a similar kind?
 MR. HULTMAN:  Could I again, Your Honor, just voir dire one or two questions?
 MR. TAIKEFF:  No objection.
 MR. HULTMAN:  In order for a possible objection.
{2030}
 Agent Waring, counsel has asked you a number of questions about a search within a given area here to which is the general vicinity as Coler's car. Do you recall those questions?
 THE WITNESS:  Yes, sir.
 MR. HULTMAN:  Now, you also indicated in response to questions there were certain people, I believe Agent Hughes, Wiley, a Price, Taubert, maybe the question wasn't asked, but referred to on the 302, other agents that were there at the same time conducting the search in your presence; is that correct?
 THE WITNESS:  That's correct, sir.
 MR. HULTMAN:  Now, was this search at that time done in more or less together in that narrow, very limited area?
 THE WITNESS:  Yes, sir.
 MR. HULTMAN:  And were you aware of the things that were found at that time by any of these agents in and about that limited area to which counsel is referring?
 THE WITNESS:  Yes, sir. There were things found that I did not necessarily indicate that I was right there when they were located.
 I placed my initials on items with other agents while I was standing there observing them from where they were picked up, and then placed in a separate container for evidence.
 MR. HULTMAN:  All right. So is it fair for me to {2031} conclude that all of the items that were found by that group at that time were in the presence of each other?
 THE WITNESS:  That's correct, sir.
 MR. HULTMAN:  And you were aware of what those items are, or you were at that time? I don't know whether you are now by memory.
 THE WITNESS:  I was aware -- I took a look at the items as they were placed and put into evidence.
 MR. HULTMAN:  I have no further questions.
 Go ahead.
 Q  (By Mr. Taikeff) Let me see if I can hasten this process by making clear to you what it is that I'm after.
 My question as predicated on the following position which I think is the Government's position, I would like to be corrected if I'm wrong, that between the two agents they had two handguns, each designated a .357 magnum, one pump shotgun, one pump rifle and except for a piece of evidence that may have been in the glove compartment of one car no other weapon. Now, that's the foundation of the position that I'm in in questioning you.
 Now, I'd like to take it a step further. Those handguns which are in evidence in this case, and which are designated as .357 magnums, they're not in evidence yet I'm informed by the Clerk, they’ve been identified, are capable of firing a .357 magnum cartridge, or a .38 Special cartridge, {2032} correct?
 A  Yes, sir.
{2033}
 A  Yes.
 Q  And, of course, the shotgun, the twelve gauge shotgun fires twelve gauge shotgun shells and the other rifle which I think is a .308 fires that caliber. What I'm interested in knowing, based on your activities with your fellow agents when you searched the immediate vicinity of Coler's car is how many .38 specials, how many .357 nagums, how many twelve gauge shotgun shells and how many .308 shells did you find within that circle with Coler's car at the center and a diameter of 120 feet?
 MR. HULTMAN:  Counsel, I have no objection at all, and I think to get the answer you're trying to get, if you showed him the exhibit now. If he could refresh his recollection and give you the response you're seeking.
 MR. TAIKEFF:  I have no objections doing that at all.
 A  At this time, this took place in June, 1975. I'll have to, I can read it to you from --
 Q  (By Mr. Taikeff) I have no objection if you have confidence in what it says there.
 A  Number one indicates expended, one expended shotgun shell found near the right tire. Number two has some other items in addition to, but I'll just list the shells. One expended .308 round, one live .308 round.
 Q  I'm only talking about evidence of things being shot.
 A  Okay, sir.
{2034}
 Q  If I didn't make that clear to you I apologize.
 A  Number three indicates there was one expended round of .38 caliber.
 Q  And you're speaking now of both in and out of the car, I assume?
 A  These were found outside of the car.
 Q  Okay.
 *A  Without reading the entire document through in the list of items found, those would be the items that were expended shells.
 MR. TAIKEFF:  Your Honor, to make sure I might not be taking unfair advantage of this witness' failure to locate something, I would ask Mr. Hultman to state whether that is in fact a complete and accurate list of either what's in the report or any information he has. I want to make sure there is no misunderstanding about that.
 MR. HULTMAN:  Well, as I understand, you're talking about, one, he responded to you a search outside the car, not inside the car?
 MR. TAIKEFF:  That is correct.
 MR. HULTMAN:  And I would refresh my own self here just to make sure.
 MR. TAIKEFF:  I summarized it as one .308, two .38 calibers and one twelve gauge shotgun shell all expended.
 MR. HULTMAN:  If Counsel indicates that is what the {2035} 302 indicates, I have no argument, but I'm not certifying it's the case.
 MR. TAIKEFF:  I understand that. I'm only trying to make sure because the witness said he thinks that's the complete list that I don't take advantage of an oversight on his part that Mr. Hultman might be aware of. I'd like to be corrected if I'm taking advantage of that.
 MR. HULTMAN:  Indicates one expended, apparently .38 caliber round.
 MR. TAIKEFF:  I see. So instead of four there might have been only three but surely not more than four, am I safe in understanding the testimony that way?
 MR. HULTMAN:  One expended shotgun shell he's referred to, one expended .308 round, one expended, one round, one expended round, apparently .308 and that's all I --
 MR. TAIKEFF:  Thank you.
 Q  (By Mr. Taikeff) Now, sir, do you know of anything picked up that day that was carried away by the agents and not reflected in this report in the way of expended .38 caliber, .357 caliber, twelve gauge or .308?
 A  No, sir. The reason for conducting the search is to obtain everything that would be considered evidence and all expended rounds in addition to live rounds would be considered evidence when we picked them up.
 Q  Now you've fired a .308, haven't you?
{2036}
 A  Yes, sir.
 Q  You fired a pump action shotgun, haven't you?
 A  Yes, sir.
 Q  Pump action rifle?
 A  Yes, sir.
 Q  How many years ago did you first encounter the use of rifles or shotguns?
 A  When I was in the U.S. Army, sir.
 Q  About how many years ago?
 A  1967.
 Q  So for ten years you have had experience with rifles, long guns, shotguns of different kinds, is that correct?
 A  Had some experience; yes, sir.
 Q  I'm not trying to qualify you as an expert, just ten years of experience both as a military person and a law enforcement person, isn't that correct?
 A  Yes, sir.
 Q  And you fired guns from time to time on the practice range, don't you?
 A  Yes, sir.
 Q  And also handguns would be included in that, wouldn't it?
 A  Yes, sir.
 Q  Now is it possible by any technique or method that you might know to take a twelve gauge shotgun, pump it so that it's {2037} loaded and cocked, fire it and pull back the slide so hard that the casing goes out more than 60 feet away?
 A  No shotgun that I've ever seen, sir.
 Q  Is it possible to use a pump action .308 rifle in such a way that you use the slide to cock it and load it, you fire it, you then pull the slide back again in such a vigorous way that the bullet, the cartridge flies out more than 60 feet away?
 A  No, sir.
 Q  Now when you fire a handgun that is not a semi-automatic pistol, I'm talking about a revolver, okay?
 I should have worn my six gun. They're not here.
 When you fire a handgun which is not a semi-automatic pistol, what is commonly referred to as a revolver, as you fire it, what happens to the empty casing?
 A  They stay in the cylinder, sir.
 Q  And as a general rule, I'm not asking you whether it's true for every revolver ever manufactured, as a general rule you either break the gun open or break out the cylinder to expose the fired cartridges?
 A  That's correct.
 Q  And then there is, depending on the particular design of that handgun, either an ejector rod which sits underneath the barrel and parallel to it or is part of the axis or the axle of the cylinder that you can push and eject either one at a {2038} time, depending on the design, or all at one time, the casings which are in the cylinder, is that right?
 A  That's correct.
 Q  Now, sir, based on your experience of ten years with handguns, is it physically possible to fire a .357 magnum or any other handgun and then break out the cylinder and push the ejector mechanism with such force that the empty casings fly out of the cylinder and go more than 60 feet away?
 A  No, sir.
 Q  Did it rain anytime that afternoon?
 A  No, sir.
 Q  Is it therefore fair to say that at no time prior to your search on June 26th was it possible for it to have rained so hard that any casings on the ground would have dissolved?
 A  It didn't rain that day, sir.
 Q  No, sir, let's direct your attention to the other area that you searched on another occasion up here (indicating). On June 26th did you walk through or come close to that area?
 A  I was close to that area, sir.
 Q  Did you ever examine that area in any way, cursory or otherwise, on June 26th?
 A  Just looking it over from the position of the trees.
 Q  You didn't look on the ground at any time, did you?
 A  No, sir.
 Q  Now you came back to that particular location on June 28, {2039} correct?
 A  Yes, sir.
 Q  Were you in the Army?
 A  Yes, sir.
 Q  Did you ever see a weapon like Government Exhibit 29A?
 A  Looks like an M1.
 Q  It's an M1 Gerand rifle, right?
 A  I know it as an M1; yes, sir.
 Q  What caliber does it fire?
 A  I believe it's a 30 caliber bullet.
 Q  Is it a fact that it fires 30-06?
 A  Could, sir.
 MR. TAIKEFF:  Will the government stipulate that rifle fires 30-06?
 MR. HULTMAN:  I think there will be testimony by such a person who would respond, whatever the answer would be. I'm in no position to respond, Counsel.
 MR. TAIKEFF:  Well, subject to his testimony, would the government stipulate that that --
 MR. HULTMAN:  I can't, Counsel.
 MR. TAIKEFF:  That M1 rifle fires 30-06? I'm only asking will the government stipulate.
 MR. HULTMAN:  I'm not objecting. There will be a witness that can answer specifically that question. I'm not going to stipulate something I myself sitting here not being {2040} expert doesn't know. That's all.
 Q  (By Mr. Taikeff) When you went back on June 28, you searched the ground around those junked cars, right?
 A  Yes, sir.
 Q  And you found ten 30-06 casings, is that right?
 A  Yes, sir.
 Q  And they were the ones offered in evidence yesterday except that one of them was missing?
 A  Correct, sir.
 Q  Now can you pinpoint for us where you found those 30-06 casings?
 A  I'd have to refer to the 302, if I have a distance in there. At this time I just don't. To the rear of the automobile I pointed to yesterday.
 IT would be the last car in the line in the southeast.
 Q  Southeasterly direction?
 A  Southeast. Right off the, I call it the left rear as you stand facing the rear of the car parked (indicating).
 Q  Let me put it this way:  if a person were standing behind that last car, and generally speaking I'm pointing in a southeasterly direction, and he were generally speaking facing the direction where Coler's car is designated on the chart, then you are talking about a place which is somewhat to the right of that?
 A  Yes.
{2041}
 Q  Okay.
 Now that M1 rifle, it loads its ammunition in a clip through the top, does it not?
 A  Yes, sir.
 Q  And when it fires the ejected cartridges come out to the right, do they not?
 A  That's correct.
 Q  They don't make a left-handed model for that particular gun, isn't that correct?
 A  I don't recall any. Haven't seen any; no, sir.
 +Q  And so if someone were standing behind that car, that last car, shooting in the direction of Coler's car, you would expect to find 30-06 rounds roughly where you found them, isn't that correct?
 MR. HULTMAN:  I object.
 MR. TAIKEFF:  I'll withdraw the question.
 Q  (By Mr. Taikeff) Now, sir, tell us where you found the .223 casings at that location.
 A  I didn't find .223 casings, sir.
 Q  I'm sorry, sir. I must have misspoken.
 THE COURT:  The Court is in recess until 1:30.
 (Recess taken.)
{2042}
AFTERNOON SESSION
 (Whereupon, at the hour of 1:30 o'clock, p.m., the trial of the within cause was resumed pursuant to the noon recess heretofore taken; and the following further proceedings were had, the Defendant being present in person:)
 THE COURT:  Is counsel ready for the jury?
 MR. TAIKEFF:  Yes, your Honor.
 MR. HULTMAN:  Yes, sir.
 THE COURT:  The jury may be brought in.
 (Whereupon, at 1:32 o'clock, p.m., the jury returned to the courtroom; and the following further proceedings were had in the presence and hearing of the jury:)
 THE COURT:  You may proceed.
 MR. TAIKEFF:  Thank you, your Honor.
 GERARD P. WARING,
having been previously duly sworn, resumed the stand and testified further as follows:
 CROSS EXAMINATION (Cont'd.)
By MR. TAIKEFF:
 Q  Mr. Waring, do you recall that just before the luncheon recess was announced, we were looking at the facts surrounding a search of the area surrounding the junked cars?
 A  Yes, sir.
 Q  And do you recall that I put to you the following question {2043} and that you gave the following answer:
 Question:  Now, sir, tell us where you found the 2.23 casings, at that location?
 Answer:  I didn't find 2.23 casings, sir.
 Do you recall that question and answer just before the luncheon recess?
 A  Yes, sir.
 Q  I am bringing before you Government's Exhibit 34-AA. Do you recognize that as an AR-15, do you not?
 A  Yes, sir.
 Q  And that is the kind of gun which ejects its spent casings out the right-hand side, isn't that correct?
 A  Yes, sir.
 Q  The pedestal on which I am resting Government Exhibit 34-AA is the clip, is it not?
 A  This is the magazine (indicating), I believe they refer to it.
 Q  O.k., and the bullets sit in there on a platform which is motivated by a spring, is that right?
 A  Yes, sir.
 Q  As you load each one, the platform goes down and that spring provides pressure, correct?
 A  Yes, sir.
 Q  And that pressure is needed because as each bullet is fired and then ejected, the next bullet has to be raised up {2044} to an appropriate level so the bolt, when it is pushing itself forward, catches the next bullet on top and puts it into the place from which it is fired, is that correct?
 A  Yes, sir.
 Q  And there is a little trapdoor here (indicating), is there not?
 A  Yes, sir.
 Q  On the right-hand side, and it is out of that trapdoor that the casings come, one at a time, as you fire each round, correct?
 A  Yes, sir.
 Q  Have you ever fired any weapon like this?
 A  Not that -- a M-16, sir.
 Q  Basically the difference between the M-16 and this is that the M-16 is capable of firing in a fully automatic mode?
 A  Yes.
 Q  If you load that with a 10 shot clip and you pull the trigger, and you hold it in for a fraction of a second, you will hold it until all 10 shots have come out, one right after the other, correct?
 A  Yes.
 Q  When you fired the M-16, do you know what caliber ammunition it was firing?
 A  I fired the M-16 in the Service, sir.
 Q  What caliber ammunition?
{2045}
 A  2.23.
 Q  And does the 2.23 casing have a distinctive shape so that if you saw it you would know it?
 A  It had a marking on it, I would know it. Not necessarily at this time if I looked at it without seeing the marking on it, I wouldn't know.
 Q  But the marking would tell you the caliber?
 A  Yes, sir.
 Q  And it doesn't specifically say whether it should be used in an AR-15 or a M-16, is that correct?
 A  No, sir, it describes the type of ammunition.
 Q  O.k., and 2.23 is a specific designation for a certain cartridge, is that correct?
 A  That's correct, sir.
 Q  And as far as you know, that number in that form is used only to define that particular kind of cartridge?
 A  Yes, sir.
 Q  Now, have you ever known an AR-15 or an M-16 to eject its empty casings 60 feet from the gun?
 A  No, sir.
 Q  Based on your own experience, what would you say the average distance is?
 A  I would say not more than just a couple of feet.
 Q  Now, sir, I am placing before you the Commando Mark III, Government Exhibit 37-A. I am going to stand over here so the {2046} jury can see the weapon. I may have blocked the jury before.
 Now, basically this weapon works the same way as the AR-15, isn't that correct?
 A  I have never seen this one fired.
 Q  Well, why don't you take a look at it, and based on your own experiences, tell us whether or not, generally speaking, it functions in the same way?
 A  I would say it is magazine fed. Yes, it would be similar.
 Q  It ejects out of a port on the right-hand side, is that correct?
 A  That's correct.
 Q  And the bullets come up one at a time in the magazine, and as they are fired, the slide comes back, the empty casing goes out, the slide goes forward, the next bullet goes into the chamber, is that right?
 A  That's the way it should work, yes, sir.
 Q  Do you have any reason to believe that this particular weapon is capable of firing in such a way that the empty casings would be ejected more than 60 feet to the right of the shooter?
 A  No, sir.
 Q  Did you find any .45 casings in the vicinity of the junked cars?
 A  No, sir.
 Q  Now, I would like to draw your attention to the assault on the green house. That specific event occurred at approximately {2047} 5:50 p.m., is that correct?
 A  Yes, sir.
 Q  And your focus of attention on the green house -- I am not suggesting it was absolutely uninterrupted -- but the general focus of attention on the green house began at what time prior to 5:50?
 A  Well, when I first got into the area at Z-1, which was approximately 2:00 p.m., to 2:15 p.m. --
 Q  (Interrupting) I am talking about a period beginning sometime earlier than 5:50, where for all practical purposes there was an uninterrupted -- I don't mean it every minute -- but generally speaking, an uninterrupted period where your principal focus of attention was the green house, was that a half hour before 5:50, an hour before, or an hour and a half before 5:50?
 A  Generally we were focusing -- or I was focusing my attention on the plateau, including the green house, from the time that I mentioned earlier through the rest of the afternoon, sir.
 Q  O.k. Now, in the latter part of the day, let's say within an hour or perhaps an hour and a half before 5:50 p.m., were you under the impression that you or the law enforcement people you were working with were receiving fire from the vicinity of the green house?
 A  Well, as I stated earlier, the last fire that my group {2048} received, really the last firing that I heard, was sometime after 2:30 p.m., 2:30 to 2:45 p.m.
 Q  Not later in the day?
 A  No, sir.
 MR. TAIKEFF:  If I may have another moment, your Honor, please?
 THE COURT:  You may.
 Q  (By Mr. Taikeff) Is it possible, sir, that you are mistaken about receiving fire from the green house at or about the time of the assault?
 A  When I began to move from the corral area, Z-3, out into the open area, the only thing I could tell, that there were rounds coming in my direction; and as I said, I believed at that time they were coming from the plateau area of the green house.
 Q  Well, is it not a fact that in your 302 of that date you wrote:  Shortly after the assault teams began the assault, they moved into a position which would not allow me to fire from my position; and I immediately left and proceeded toward the green house, across an open field. Approximately half way across the open field, the Sheriff's Deputy, myself and other members of the assault team came under fire, believed to be coming from the direction of the green house?
 A  Yes, sir.
 Q  Now, can you identify in any way, by name, height, {2049} general description, kind of clothing or otherwise, the person or persons who may have been firing at you from the green house at that time?
 A  No, sir. As I stated earlier, when I went across and I started to hear the rounds go over my head, I got down on the ground and was going for cover. I didn't look, and I didn't see anyone.
 Q  Now, at or about that time, isn't it true that a certain number of law enforcement people were at a point west of the car location, Coler's car, on a road called Highway 35, keeping an eye on what was happening east of them and checking out the whole scene to the extent that they could see it, weren't they there at 5:50 p.m.?
 A  I don't know, sir.
 Q  Did your group have radio equipment?
 A  We had one radio, sir.
 Q  Was it on the FBI frequency?
 A  Yes, sir.
 Q  Did you hear or were you ever advised that there came over that radio any report that when you were assaulting the green house from which you thought firing was coming, people were seen running from the green house, or a person was seen running from the green house?
 A  I was never advised of that, no.
 Q  Now then, you secured the green house, is that correct?
{2050}
 A  Well, we secured the residences located on that plateau, yes, sir.
 Q  And how many people did you arrest at that time?
 A  We didn't arrest anyone.
 Q  Well, how many people other tha