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

BENCH (BRADY DISCLOSURE REQUEST) A
ATF AGENT MICHAEL GAMMAGE, WICHITA  B,   {VOL 11, CONT}
SCHEDULING OF DEFENSE MEETINGS WITH PELTIER, SCHEDULED DURING COURT HOURS  C

MR. SIKMA:  Plaintiff calls Michael Gammage.
 MR. LOWE:  May we approach the bench, Your Honor?'
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 MR. LOWE:  Your Honor, we would move under the authority of Brady against Maryland to have the Government disclose information to us, or documents to us, which would fall under the Brady guidelines for exculpatory or possible exculpatory information, namely that the Government disclose and provide us with copies of any covering documents that were sent to Special Agent Cunningham with the affidavit as well as the information, and who prepared the affidavit. And any documents that accompany it when they were sent to Special Agent Cunningham.
 MR. HULTMAN:  Your Honor, the Government resists. First {2130} of all on the ground that it's been at least six months that counsel has known of the very things that they are projecting here. That they could have made any such request at the proper time and, nextly, that there is no knowledge. And the position of the Government on the part of of the U.S. Attorney at this time, he had no knowledge of what is now being presented, and thirdly that in the judgment of the U.S. Attorney doesn't constitute Brady material.
 THE COURT:  It was Brady v. ?
 MR. LOWE:  Brady v. Maryland.
 I'm not sure what Mr. Hultman is talking about, and I say this, correct me if I'm wrong, but I believe the first time that I saw that material was when the 3500 material was given to us. I don't know when it was, a couple of nights ago, something like that, several days ago is the first time I saw it.
 And secondly under Brady against Maryland those disclosures must be made at any time. There's no disclosure on Brady.
 THE COURT:  I will take your request under advisement.
 MR. TAIKEFF:  Your Honor, I'd just like to add one legal observation.
 Often it is my experience that the Government argues that it need not comply with Brady well in advance of trial, but that the appropriate time for it to comply with Brady is {2131} just at the beginning of, or during the trial when the need for the information becomes apparent.
 I think the cases tend to support that view. But if any case deviates from that it's only because they accelerate the time. They don't put it in at the end of the trial or after the trial.
 Obviously during the trial is the last time when Brady could ever be operative.
 MR. HULTMAN:  Well, my posture is, one, that that is the case; and two, that under, I'm taking the position unless the Court would rule to the contrary, that it doesn't constitute "Brady Agurs".
 MR. TAIKEFF:  That's a separate question.
 MR. HULTMAN:  We understand what we're talking about by Brady. But my position is there's later cases that modify and put it in a different posture and that's why I use the term Agurs, Brady-Agurs so everyone understands.
 MR. LOWE:  To the extent that we may end up arguing at the sidebar or in court at some point --
 MR. HULTMAN:  You haven't been damaged.
 MR. LOWE:  You just let us know what those cases are so if they are raised before the Court we will be able to talk about them intelligently.
 MR. HULTMAN:  John, I've stated on the record, and I think we know the issue we're talking about. I mean you can {2132} brief it the same as I can brief it to the Court.
 MR. LOWE:  I'm saying if you are going to refer to cases, it would be helpful to read them before.
 MR. HULTMAN:  It's the last issue in the case. Your Honor, you are very familiar with the Agurs case.
 I'll give you the citation, John. 427 U.S. 97. That's June 24, 1976. U.S. v. A-g-u-r-s.
 MR. LOWE:  That's the only case you're speaking of? You mentioned several cases. Now, you said several cases, that's why I asked.
 MR. HULTMAN:  I didn't mean to say --
 MR. TAIKEFF:  I have a matter which I think will probably be easily resolved. I just want to make sure that the testimony to be offered by the next witness, Michael Gammage, G-a-m-m-a-g-e is going to relate to the weapons which were found in Wichita and the weapons only.
 MR. HULTMAN:  That's right.
 Well, is it weapons only? No, I think he'll relate to the scene and photographs and so forth which tie to the weapons and the event itself.
 MR. SIKMA:  Also, unless you want to stipulate to the identity of Robert Robideau who identified himself as Robert LaMonte, if you want to stipulate to that fact I won't go into it.
 MR. TAIKEFF:  You mean he was the person who was injured {2133} in the scene?
 MR. SIKMA:  Yes.
 MR. TAIKEFF:  Yes, of course.
 MR. SIKMA:  And that I'll just read that stipulation. Then we won't, I won't go into it with this witness if that's all right, I mean if you prefer that.
 MR. TAIKEFF:  Either way.
 MR. SIKMA:  I think it would save us time if we stipulate to it.
 MR. TAIKEFF:  Okay. I just want to make sure that the kind of evidence, whether it's pictorial or verbal or real, that we made reference to in our trial memorandum is not displayed to the jury until his Honor has a chance to consider it, because as far as the incident is concerned we've taken a general position that the entire episode is not relevant, and we don't have to argue that again because I believe His Honor has overruled our objection.
 However, we now have the question of certain elements here being prejudicial, and if you would use those photographs I hope before you offer any photograph you give us a chance to look at it.
 MR. HULTMAN:  Let's get them now.
 MR. TAIKEFF:  May we do that now, Your Honor.
 THE COURT:  Very well.
 MR. SIKMA:  Take this one out, but it does identify {2134}
the vehicle.
 MR. TAIKEFF:  We have no objection to the license plate, Your Honor.
 Now, Your Honor, pages 1, 2 and 3 show the vehicle after the explosion. There has already been testimony on that subject which followed our original position that this entire episode is irrelevant to the issues in this case.
 I don't see why the necessity is to show them these photographs and emphasize the nature of that incident. The defendant is not purported to have been there. Am I correct about that, Mr. Sikma?
 MR. SIKMA:  That's correct?
 THE COURT:  The defendant is what?
 MR. TAIKEFF:  Not purported to have been there.
 And I admit that it has a certain amount of drama to it. In fact, one might even think that it would give Detroit a new idea.
 However, I really don't think it's appropriate. Although I could surely understand the Government's desire to introduce it.
 MR. SIKMA:  I think that it is, Your Honor, I think that it shows number one, the number of weapons involved here. Some of the weapons directly related to tent city.
 MR. TAIKEFF:  We have no objection to that. We believe it's proper for the Government to introduce that {2135} evidence.
 MR. SIKMA:  this is a hand grenade which is the type found in the testimony, both at tent city and at the Al Running residence, which will come up at a later time. Exactly the same type of things which were carried away from the scene on this day.
 The firearms there --
 MR. TAIKEFF:  We have no objection to the photograph which is on page 10. And assuming that my eyesight is serving me well, and there are only weapons and a belt, firearms when I say weapons, then we have no objections to 11 and 12. And we object, specifically object to 13. That's the kind of material we think is inappropriate and I'll state it very briefly, Your Honor.
 Off the record.
 (Discussion off the record.)
 THE COURT:  What is that, a hand grenade?
 MR. SIKMA:  That is a hand grenade that was found near this thing.
*MR. TAIKEFF:  Your Honor, we believe that the photographs we've objected to would compound a problem. This is to begin with proof of another crime and it has to do with a time and place where the defendant was not involved. So it's proof of another crime of another person well after the event.
 I believe it's between four and five months after the {2136} event, June of '75. It's too far removed and too far attenuated from either the defendant or the events of June 26th.
 THE COURT:  Are those hand grenades tied up to tent city and the --
 MR. SIKMA:  Yes, Your Honor.
 THE COURT:  -- and the Jumping Bull compound?
 MR. SIKMA:  Yes, Your Honor.
 MR. TAIKEFF:  Those hand grenades?
 MR. SIKMA:  Exactly the same kind.
 MR. TAIKEFF:  At tent city?
 MR. SIKMA:  Yes. I believe they were --
 MR. TAIKEFF:  I believe you are mistaken, Mr. Sikma.
 MR. SIKMA:  I believe they were carried away from that area.
 MR. TAIKEFF:  I believe you are mistaken. If you look at your other photographs or review your testimony you will find that what you are dealing with there was a homemade soda pop bottle or beer bottle.
 MR. SIKMA:  But I think one other thing, Your Honor, these kinds, precisely this same thing was found at the Al Running residence where, which is the area to which Leonard Peltier --
 THE COURT:  Where is the Al Running residence?
 MR. TAIKEFF:  Rosebud Reservation.
{2137}
 MR. SIKMA:  Rosebud Reservation.
 THE COURT:  Yes, I know now.
 MR. SIKMA:  Where the weapons were found, and I think there's a rational relationship between these items and the Al Running residence which I think connects this defendant to other persons, such as Mike Anderson, Robert Robideau and Norman Charles who were in this vehicle, and also Dino Butler who was at the Al Running residence and who was arrested there with these items in the same room with him, and on the same compound, and I think that there is a relationship which ties the two together.
 I think that the weight to be given this evidence is a matter for the jury to decide, but I believe that it does rise to the level of admissibility.
 MR. TAIKEFF:  I wasn't addressing myself at all to the question of weight. I was merely trying to persuade Your Honor that if Leonard Peltier himself four months after the event had certain materials or weapons in his possession, that there would be a serious question as to whether evidence of that other crime would be admissible out of consideration of possible prejudice.
 This is a step further removed than that. This is the conduct of other people with the defendant in no way connected with these events, except that at one time several months earlier he was in a certain relationship to them. It would {2138} that if this case were tried a year from now and in the course of that year these people, most or all of whom are free at this time except Mr. Robideau, committed further criminal acts, it would be adduceable because of an earlier relationship which had existed in June of 1975.
 So it is both the problem of proof of other crimes and particularly aggravated by the fact that they're not the crimes of the defendant. If they were the crimes of the defendant they'd be questionably admissible.
 MR. SIKMA:  Your Honor, I think that it does relate to state of mind that was present at the Jumping Bull residence, the tent area in particular. I think that the Court will find that wherever this defendant is followed, every place where this defendant sets up residence and the people that are associated with this group, you will find that you don't find one or two weapons, a variety, a great variety of weapons. You find a great variety of explosives and very dangerous items which certainly goes to rebut the statement which has been made in the argument that from time to time that the defendant's activities and those activities of persons associated with him are principally religious in nature.
 I would submit that that is not the case and this certainly goes to rebut that.
 THE COURT:  What is the significance of 9?
{2139}
 MR. SIKMA:  Right there, the hand grenade that's found there, and also a piece of weapon. And here's another one.
 THE COURT:  What is the significance of --
 MR. SIKMA:  Okay. This shrapnel which is the explosion of one of those.
 MR. TAIKEFF:  May the record reflect that Your Honor is looking at number --
 THE COURT:  It's hard to see because there's no number there.
 MR. SIKMA:  Oh, I'm sorry. Should be.
 THE COURT:  There's 7 and 8, and then no number on that. Then 9 and 10 presumably.
 MR. TAIKEFF:  The photograph which precedes 9 that Mr. Sikma was addressing himself to, it shows the force of the explosion.
 MR. SIKMA:  And the shrapnel, pieces of shrapnel from these various items.
 THE COURT:  What is the significance of 7?
 MR. SIKMA:  There are a number of cartridge cases which are identified that relate to the weapons here.
 The weapons are not being carried just by themselves. There are a number of weapons being carried with substantial amount of ammunition.
 THE COURT:  What is the significance of 6?
{2140}
 MR. SIKMA:  The significance is just the explanation of the explosion which is shown on other pages. One is a rear view I think, and one of them is a front view.
 THE COURT:  Well, it seems to me that 4, 6 and the rest of these should be received.
 And 5, 3, 2 seem to be just cumulative.
 MR. SIKMA:  Okay. I'll take those off, 5, 3 and 2.
 THE COURT:  Those appear to be cumulative.
 MR. SIKMA:  I will remove those photographs, Your Honor.
 THE COURT:  That's the ruling of the Court.
 MR. TAIKEFF:  Thank you, Your Honor.
{2141}
 MICHAEL GAMMAGE,
being first duly sworn, testified as follows:
 DIRECT EXAMINATION
BY MR. SIKMA:
 Q  Please tell the jury your name.
 A  My name is Michael D. Gammage.
 Q  What is your occupation?
 A  I'm a special agent of the Bureau of Alcohol, Tobacco and Firearms for the United States Treasury Department.
 Q  Was that your occupation on September 10, 1975?
 A  Yes, it was.
 Q  And were you also working in, where were you working on that day?
 A  I was working in Wichita, Kansas.
 Q  Did you have a call to go out and make an investigation in the afternoon approximately 4:00 o'clock on that date?
 A  Yes, sir, I did.
 Q  Would you please tell the jury where it was that you went and for what purpose at that time.
 A  I went to an area on the Kansas Turnpike which is an extension of Interstate 35. It's not Interstate 35 but it's where Interstate 35 crosses the Kansas-Oklahoma border and back east the Kansas Turnpike. This area was identified by mile markers and the area I was in was milepost 29 which is south of Wichita in Sumner County.
 Q  And did you go to that place?
{2142}
 A  Yes, I did.
 Q  And what did you observe there?
 A  When I arrived in the vicinity of milepost 29, I was in the southbound lane and I observed in the southbound lane on the west shoulder, which was to my right, what appeared to be a very late model, not a late model, '65 model, in that area, station wagon that appeared to have been involved in an explosion and fire. The roof had been torn from the vehicle and was standing perpendicular to the pavement straight up and down and the car had smoke marks and it was very badly rusted.
 To the rear of the car I observed nearest me, which would be north of the car, a pile of clothing which consisted of blankets, clothing, a pack. South of that pile near the rear of the vehicle I observed a pile, a group of firearms that had been grouped together.
 Q  I will show you what is marked for identification as Government Exhibit 62 and ask you whether or not you recognize those photographs?
 A  Yes, sir, I do.
 Q  Now do those photographs accurately reflect what you observed at the time on the 10th of September, 1975 in Wichita?
 A  Yes, sir, they do.
 MR. SIKMA:  Your Honor, I would offer these photographs into evidence at this time.
{2143}
 MR. LOWE:  Your Honor, we would have no objection as to general depiction. There may be specific items we'll have specific objections to in some instances but as to the general admissibility, and also subject to the record.
 THE COURT:  Subject to the record that has been made with reference to those photographs, they're received in evidence, Exhibit 62 is received in evidence.
 Q  (By Mr. Sikma) I would ask you to look at the photographs and describe for the jury generally what you observed in the photographs and what you saw at that particular time you made those observations.
 A  First paragraph is or a license plate that is normally affixed to either the front of the rear or both places on a vehicle. It says, "'75 Oklahoma is okay" and the number is "P" as in Paul, "E" as in Edward, "3445." The license plate is white background with green border and green lettering and numbering. This was found in the vicinity after I arrived and initiated the search of the area.
 This photograph is looking from --
 Q  Which page are you on?
 A  I'm sorry. This is page 4. Now the first one was page one.
 Q  Page 4 is a photograph of the vehicle looking from the left rear quarter panel. That would be to the north and slightly east of the vehicle. It's taking a shot of the left {2144} side. The left rear door is open exposing the interior of the car.
Page number 6 is a photograph taken due north of the vehicle in the immediate foreground. It shows the pile of clothing and between the clothing and the car there is a piece of metal that was off the car, debris, and then the stack of firearms are directly to the rear of the vehicle.
 Then there is the vehicle with the rear shot showing that the tailgate has been blow off the car and the top is raised and the interior is charred.
 Photograph number 7 is a closer shot of the debris directly near the bumper. This is a metal piece off the car and also showing debris that includes the shotgun shells and rifle shells and .45 caliber automatic Colt pistol shells and what appears to be the upper forearm of an M1 carbine which is this piece right here (indicating).
 Number 8 is the photograph on the west side of the vehicle. This is near the right rear tire which is pictured here (indicating). This would be the right rear quarter panel (indicating). Directly below this was pictured what we believed at the time was a homemade hand grenade. This is a portion of the car and this article here is a canteen with the cover partially burned off (indicating).
 Mr. Sikma, I don't have a page number on this {2145} photograph.
 Q  What is the page that follows that photograph?
 A  It's page 9 but it's on the back side.
 Q  So it would be the reverse side of page 9, is that correct?
 A  Yes, sir, it would.
 Q  What is on the reverse side of page 9?
 A  This is a closer shot into the interior of the car from the east side of the car shot through the left rear passenger door. You see the holes in the vehicle. You see the main strut where the roof had been attached and also inside you see the frame where the seat was and also some charred areas.
 Photograph number 9 is taken on the west side of the car photographing the right front tire. Directly under the right front bumper was another device that we believe to be a homemade hand grenade. This is part of the spare tire that had been on top of the car directly behind the driver's seat that had subsequently caught fire and separated and burned.
 Photograph 10 is the stack of weapons after they were separated and placed in a line by myself and also shotgun shells and debris. This is a shotgun, this is a rifle, that's a rifle, that's a rifle, that is a rifle and that is a rifle and these two are revolvers (indicating). This article is a seat belt (indicating).
 Photograph number 11 is a closer view at a different {2146} angle of essentially the same weapons. Again we have the rifle, rifle, double barrel shotgun as pictured in the other photograph, rifle and these two are also rifles and here's a closer shot of the belt (indicating).
 Photograph number 12 is a photograph of the two revolvers, another photograph of this same rifle and then this rifle is again photographed (indicating). The double barreled shotgun and the other rifle here (indicating).
 Number 13 is a photograph that has a background of the grassy area of the turnpike which is a bar ditch, it's not the median, it's over on the left side of the highway on the southbound lane. In the middle of the photograph is another device that we picked up that we suspected of being a homemade grenade at the time.
 Q  I would show you what has been marked as Government Exhibit 30A. Can you tell me whether or not you recognize Government Exhibit 30A?
 A  Yes, sir, I do.
 Q  And where did you first see Government Exhibit 30A?
 A  I saw this exhibit in the stack of firearms that were to the rear of the vehicle pictured in Exhibit 62.
 +Q  And what did you do with this item when you found it?
 A  It was processed as evidence and taken into our custody and subsequently shipped to Washington, D.C. for laboratory analysis.
{2147}
 Q  How did it get to Washington, D.C.?
 A  I personally transported it there.
 Q  And to whom did you deliver it?
 A  It was delivered to our lab people on September the 12th, approximately 8:00 A.M. on the body of Elliott Biel. I went back to our headquarters building and at 10:30 I was again called to the laboratory and I witnessed Mr. Biel open the container that I had given him and witnessed him disassemble or take out the weapons and I picked up this weapon and one other and personally handed it to FBI agent Evan Hodge at 11:00 o'clock in the morning on September 12, 1975.
 MR. SIKMA:  Your Honor, first I would offer into evidence at this time Government Exhibit 30A.
 MR. LOWE:  We have no objection, Your Honor.
 THE COURT:  Exhibit 30A is received.
 Q  (By Mr. Sikma) Would you tell the jury what kind of firearm that is?
 A  This firearm is a Remington model 760 Game Master, caliber .308 pump action rifle.
 Q  Do you have any knowledge of your own experience as to who uses that kind of firearm?
 A  This is a firearm designed of the general sporting caliber. I have not seen any in possession of anyone other than the Federal Bureau of Investigation.
{2148}
 Q  I would ask you to look at Government Exhibit 30-AA and tell me whether or not you know what kind of firearm that is?
 A  (Examining) Yes, sir, I do.
 Q  And what kind of firearm is that?
 A  This is a Remington Model 76, Game Master, Caliber 3.08 rifle.
 Q  Is that similar to the firearm which is Government Exhibit 30-A?
 A  Yes, sir, it is.
 MR. SIKMA:  I would offer into evidence at this time Government Exhibit 30-AA.
 MR. LOWE:  No objection.
 THE COURT:  30-AA is received.
 (Plaintiff's Exhibit No. 30-AA, having been previously duly marked for identification, so offered in evidence, was received.)
 MR. SIKMA:  I guess that's already in evidence.
 THE COURT:  The Clerk tells me that is in evidence.
 MR. SIKMA:  Thank you, your Honor.
 Q  (By Mr. Sikma) I will show you what is marked as Government Exhibit 34-A.
 MR. LOWE:  Your Honor, we would object to any testimony about this particular item, and on the ground that it is irrelevant; and I would like in support of that objection to be able to have a couple of questions on {2149} voir dire.
 THE COURT:  Excuse me just a moment. What is the number, what have you designated that?
 MR. SIKMA:  34-A.
 THE COURT:  34-A.
 You may voir dire.
 (Mr. Lowe hands document to Mr. Sikma.)
 (Counsel confer.)
 MR. LOWE:  Could we have a moment, your Honor? We are trying to resolve the question.
 THE COURT:  You may.
 MR. SIKMA:  Your Honor, while Mr. Taikeff is attempting to check his records on this particular item, the Defendant and the Government agree to stipulate that in the vehicle which is portrayed in Government Exhibit 62, that Robert Eugene Robideau, who on that date identified himself as Robert LaMonte, was riding in that vehicle with Norman Charles and Michael Anderson.
 MR. LOWE:  Your Honor, we have agreed to stipulate that the vehicle portrayed in Government's Exhibit 62 does so show; and I believe the Government has conceded also that Mr. Peltier was not in that vehicle, is that correct?
 MR. SIKMA:  Yes, your Honor, we agree to that.
 THE COURT:  The stipulation then is that Mr. Robideau --
 MR. SIKMA:  (Interrupting) Mr. Charles and Mr. {2150} Anderson.
 THE COURT:  (Continuing) -- Mr. Charles and Mr. Anderson were in that vehicle. Mr. Peltier was not in the vehicle.
 MR. SIKMA:  That's correct, your Honor.
 THE COURT:  Very well.
 MR. LOWE:  In order not to mislead intentionally other counsel, there were other people in the vehicle besides those three, Jean Bordeau, Dennis Banks and Bernie Nichols, I believe is the other name.
 MR. SIKMA:  Yes, your Honor, that's correct, we will agree.
 THE COURT:  Three other vehicles besides Anderson, Mr. Charles and Mr. Robideau.
 MR. LOWE:  Three other people besides Mr. Anderson, Mr. Charles and Mr. Robideau; also a one and a half year old baby named Kashima Banks.
 MR. SIKMA:  We will agree to that.
 THE COURT:  The jury will remember that a stipulation may be taken as evidence on which the parties agree.
 MR. SIKMA:  Your Honor, may I have just a moment here?
 (Counsel confer.)
 MR. LOWE:  Your Honor, I believe I am on voir dire. I have a problem. It is now seven minutes before 5:00. {2151} I do not think that voir dire would possibly at 5:00. I don't want to get in the middle of an important series of questions and one which requires some continuity. If you want to we could recess now and take this up the first thing in the morning, let me begin and finish. I don't think it is going to take very long. My option is to recess for the last six minutes and start at 9:00 o'clock.
 I see the book is closed, I see a decision has been made.
 MR. SIKMA:  Voir dire generally is a couple of questions. I would appreciate it if counsel would go on. I think it is perfectly proper to continue on. He probably would like to save this until tomorrow, but I have a witness here who has been waiting around here for a week to get on the witness stand.
 MR. LOWE:  We are certainly going to have cross examination.
 THE COURT:  You are going to have this witness tomorrow anyway?
 MR. SIKMA:  He will be here.
 THE COURT:  I have another matter I am going to have to take up after 5:00, so I will not be allowing the court session to run beyond 5:00 o'clock, so I will grant Mr. Lowe's request that we recess at this time.
 MR. LOWE:  Thank you, your Honor.
{2152}
 THE COURT:  The Court will recess until 9:00 o'clock tomorrow morning.
(Whereupon, at 4:55 o'clock, p.m., the trial of the within cause was adjourned until 9:00 o'clock, a.m., on Wednesday, March 30, 1977.)
{2153}
 (Whereupon, the following proceedings were had in chambers, the Court, Mr. Taikeff, Miss Bennett, Mr. Lowe and Harold Warren being present:)
 MR. TAIKEFF:  Your Honor, Kathy Bennett is with me.
 THE COURT:  I have not met her.
 MR. TAIKEFF:  You probably noticed she sat with us during the jury selection.
 I have a very brief application to make. Diane Wiley had to return to Minneapolis.
 THE COURT:  Have a chair.
 MR. TAIKEFF:  And is not able to return because of other commitments and we ask Your Honor as a threshold application that Your Honor permit Miss Bennett to substitute for Diane Wiley and maintain the same number of people, just a replacement of one person, if Your Honor grants that application.
 THE COURT:  Diane Wiley was what:  an investigator?
 MR. TAIKEFF:  She was appointed, she was working as a volunteer but she was a regular named member of the defense team. WE want to eliminate her and appoint ourselves, not under the Criminal Justice Act, Miss Bennett. That's the threshold application.
 THE COURT:  I see no objection to that.
 MR. TAIKEFF:  Now I understand that generally Your Honor's order concerning visitation would permit up to two {2154} lawyers and one person.
 THE COURT:  Did you bring my material in off the bench?
 MR. TAIKEFF:  Before the trial began, Your Honor's order for an agreement reached with the sheriff permitted two counsel and one non-lawyer person on the defense team to visit.
 THE COURT:  I have that in my file on the bench. I just wanted to --
 MR. TAIKEFF:  Should I wait until it comes in?
 THE COURT:  You may continue.
 MR. TAIKEFF:  There was certain hours set aside which are in conflict with the hours that were on trial. We're not asking Your Honor to arrange a long range or permanent schedule for visitation because in fact we have an opportunity to see Mr. Peltier in the morning, during lunch and afterwards. However, now that we're getting very close to beginning our case, we have to consult with him and we ask that consistent with the earlier provision during the morning and afternoon that we have the specific opportunities which are listed in that Order for one counsel and Miss Bennett to visit in the evenings. Because of the added name and because of the variation in the hours from those recorded in the letter, the two page letter, we feel that an order is necessary. Both the sheriff and the marshal apparently would feel much {2155} more comfortable about it if it came directly from Your Honor.
 THE COURT:  I'm not sure I know what you're asking. Now during trial, and I'm look at the letter, it requests "Specific daily conference hours of 9:30 A.M. to 10:30 A.M. and 2:00 P.M. to 3:30 P.M. be approved for each day, Monday through Friday the case is not in trial. After the trial is commenced and for its duration we request Saturday conference hours of 9:30 A.M. to 10:30 A.M."
 MR. TAIKEFF:  I don't believe that is in the present application. Your Honor may be looking at a proposed order or an application made in some earlier date.
 THE COURT:  I'm not looking at your present application.
 MR. TAIKEFF:  Yes.
 IF so, that matter was either ruled upon by Your Honor or if not I withdraw that application.
 THE COURT:  That was ruled upon and those times were set up with a provision. There was an order then on the 7th of March, "The defendant moved the Court for an order amending the conditions under which Counsel is permitted access to and provide an attached copy of February 18, '77 letter to Sheriff Olson. AS stated, Defendant moves for an order amending these conditions to allow access by those individuals listed in said letter to meet with defendant during any time {2156} during the normal business day and no limitation be made of people allowed to see the defendant at one time as long as the individuals named in the court's letter of February 18. IT was ordered the provisions of February 18 letter not be enlarged except as maybe allowed at the discretion of the Clay County, Minnesota sheriff consistent with their security requirements."
 MR. TAIKEFF:  Yes, Your Honor.
 THE COURT:  That's the last thing entered.
 MR. TAIKEFF:  That's quite correct. I'm sorry. For a moment I wasn't certain about the history that Your Honor was reviewing.
 It is that order which has caused us a considerable amount of difficulty in getting an understanding.
 I believe that I addressed myself to this question in Your Honor's presence sometime ago, perhaps a week ago, and reported to Your Honor that I went to Mr. Warren and asked him whether in his opinion the order which Your Honor just quoted said that if we can persuade the sheriff and he was willing that he, Mr. Warren, should not interfere and he said, "No. I do not read that order that way. As far as I'm concerned the conditions set out in the letter of February 18 continue unless modified by order of the Court."
 Now I don't want to debate over again or present to Your Honor over again the arguments.
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 THE COURT:  No. I have --
 MR. TAIKEFF:  How to interpret that order. It's because of Mr. Warren's position with respect to that order.
 THE COURT:  I don't know whether you talked with me or one of my law clerks after that or with Ralph. After that I talked to Mr. Warren and what Mr. Warren, as I recall the conversation, had reference to was that powwow that was desired.
 MR. TAIKEFF:  It was a pipe ceremony.
 THE COURT:  Pipe ceremony. All right. I plead ignorance on some of these terms.
 And that was what Mr. Warren was objecting to.
 MR. TAIKEFF:  That's quite correct, Your Honor.
 THE COURT:  On security grounds. And I told him that I would not interfere with the marshal's service with anything they considered necessary.
 MR. TAIKEFF:  I understand that.
 THE COURT:  That is the last thing that I have had to do with it.
 MR. TAIKEFF:  That's quite accurate, Your Honor. It was in the course of trying to discuss with him the pipe ceremony that I presented to him in the order which Your Honor last referred to and asked him whether he recognized that that order left it up to the discretion and the convenience of the marshal, of the sheriff and he said, "No, I do not."
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 I thought as a threshold I would see if he agreed with me that there had been a change with respect to visitation. I thought if I could convince him of that perhaps I could convince him that the sheriff should make up his own mind about the pipe ceremony but he emphatically said he did not read Your Honor's last order on the subject to alter in any way the visitation or to allow us to negotiate directly with the sheriff.
 I have no quarrel about that except that I think Mr. Warren's position is going to be the same and that's why the order that is now before Your Honor was presented so that we do not go around the circle again:  ask the sheriff, he calls Mr. Warren, Mr. Warren apparently tells the sheriff it's not okay, the sheriff says, "I'm sorry, I can't do it because we have a federal prisoner and the marshal says no," I say, "Here's the court order which says it's up to you," the sheriff says, "I'm sorry, Mr. Warren says it can't be done." So I know that the circle is sacred to the native American people and I'm tired of running around that circle. I'd like Your Honor's signature on that order.
 THE COURT:  Mr. Warren?
 MR. WARREN:  Well, I think my position remains unchanged, Your Honor. If the sheriff inquires of me, if I'm in favor of anything beyond the initial visitation privileges, I think my standard answer, and I agree with Mr. Taikeff, my answer {2159} is, "No, I don't." I'm not in harmony of any change or variation and I maintain that it's based on security measures. IF the sheriff takes it upon himself without inquiring of me, that's his thing.
 MR. TAIKEFF:  But he never does. That's the problem.
 MR. WARREN:  AS long as he inquires of me whether I have any objections to any extensions or variations of the initial letter, I say, "Yes. I don't agree with it." But each time that he calls I say, "It's your jail, Mr. Sheriff, and I can't dictate policy to your jail, but you're asking for my feeling on the matter." It's remained unchanged since the outset.
 Their personnel are limited over there in number.
 THE COURT:  The application, you haven't seen the application?
 MR. WARREN:  No, I haven't.
 THE COURT:  The application I have before me now is for Miss Bennett to be allowed together with an attorney of record for the defendant access to the defendant for a reasonable period of time during the evenings of March 29th, 30th and 31st. That's tonight, tomorrow night and the night after.
 MR. WARREN:  For what hours?
 THE COURT:  The hours aren't stated.
 MR. TAIKEFF:  I think that's much narrower than the {2160} original arrangements. It's one less person and fewer hours per day.
 MR. WARREN:  Talking about night visitation.
 THE COURT:  You're talking about night visitation because this is during trial.
 MR. TAIKEFF:  Yes. Otherwise I'd much rather have my evenings free.
 MR. WARREN:  Before I even comment, if Your Honor is asking for my comment from me, I would have to say the hours would have to be specific based on the limitation of personnel in the Clay County jail and the business activity over there. It seems like he's asking for an open door according to that for all hours visitation, for all hours of the night hours of visitation.
 MR. TAIKEFF:  I can understand that observation by Mr. Warren. We were trying to allow some flexibility on the part of the sheriff to make a selection that is most convenient to himself. But I think if a two hour period were designated, we would have no objection to something like 7:00 P.M. to 9:00P.M.
 THE COURT:  Well, I think tonight is out because you haven't had a chance to visit with the sheriff on it and why don't you visit with the sheriff and see what -- it's your representation this is necessary for preparation of the defendant's case?
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 MR. TAIKEFF:  A, I represent that's necessary and, B, I represent that it is specifically geared toward the evidence that we will be introducing in the course of our case in chief.
 THE COURT:  Well, you still have him available next door.
 MR. TAIKEFF:  Yes, sir. That's correct.
 THE COURT:  You're not going to get to visit him at the Clay County Law Enforcement Center tonight so I would suggest we terminate this meeting so you can take advantage of your opportunity to visit with the defendant now and then MR. Warren, you can visit with the sheriff about this and get back to me.
 MR. WARREN:  So we're clear, that would be Miss Bennett?
 THE COURT:  And one attorney. Right.
 MR. TAIKEFF:  Thank you, Your Honor.
 I assume, Your Honor, that then the application will be treated as one for three nights beginning tomorrow evening?
 THE COURT:  That's the way I would construe it.
 MR. TAIKEFF:  Thank you, Your Honor.
 THE COURT:  Thank you.
 (Whereupon, at 5:15 o'clock P.M. a recess was taken.)