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

BENCH BRADY RULING

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 WEDNESDAY MORNING SESSION
 March 30, 1977
Pursuant to adjournment as aforesaid, at 9:00 o'clock, a.m., on Wednesday, March 30, 1977, the Court met, present and presiding as before, and the trial proceeded as follows out of the presence and hearing of the jury, the Defendant being present in person:
THE COURT:  At the bench yesterday a Brady versus Maryland motion for disclosure was made; and the Court reserved ruling on it. The motion arose out of the statement in Agent Cunningham's affidavit that he submitted apparently on extradition proceedings in connection with this Defendant, in which he stated in his affidavit that a certain type of expended cartridge was found in the trunk -- was it Coler's vehicle?
MR HULTMAN:  Yes, sir.
THE COURT:  I would raise the question, first of all, as to whether or not there is evidence that such a cartridge was in fact found in the trunk of the Coler vehicle by someone?
MR. HULTMAN:  Yes, your Honor, there was; and I apologize to the Court. I have a brief, pursuant to our discussion yesterday, it is being typed right now; and I apologize to the Court that it is not in the Court's hands right now.
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The only reason for mentioning it, your Honor, is, one, I will certainly respond to any question your Honor has; but maybe it would be more appropriate -- I don't think the issue itself is going to arise again, Mr. Lowe, at least in the immediate testimony right now, won't arise with Mr. Garnmage.
MR. LOWE:  No.
MR. HULTMAN:  And I would suggest to the Court, if the Court would give us an opportunity to at least present that brief to the Court, that maybe prior to taking the jury up after the first recess, prior to the jury coming in this afternoon that it may be a fuller time to take the matter up, but I will certainly respond to anything the Court wishes.
One, your Honor, the evidence is known by the defense counsel. It was so shown in the last trial and will be shown again. It is there in the 302 Form and so forth, that that round was found by another agent specifically.
THE COURT:  I would then ask defense counsel specifically, because the motion was an oral motion, to state specifically what it is they are asking to be disclosed.
MR. LOWE:  Yes, sir, I would be happy to.
The testimony -- and again I made my motion obviously from the position of the defense theory and what {2164} we hope to prove and anticipate we will be able to prove with regard to the general development of this case; and in particular, with reference to this one cartridge case, first all, as I mentioned to your Honor at the bench yesterday, this is probably the single most important cartridge case in this entire investigation of all the perhaps hundreds that were found. This .223 cartridge case was allegedly found in the trunk of Coler's car which was, of course, down by the two bodies of the FBI Agents. The Government, we know, from last summer's trial and by just simple logic is going to argue that this cartridge could not have gotten into the trunk of the car except if it were fired by one of the people who killed the agents, and will then try by inference at least to connect up Mr. Peltier with having fired that cartridge since there is at the present time some testimony, if it is believed, that Mr. Peltier was firing an AR-15 from the vicinity of the big goose egg near the "Y" intersection, so that I will just say that the factual logic will be Mr. Peltier was firing an AR-15, AR-15's fire .223 cartridges, a .223 cartridge was found in the trunk next to the dead agent, the agents were killed with a shell out of a like weapon, ergo, Mr. Peltier is the murderer. We recognize that both because the Government has argued in the past essentially also on logic this makes that cartridge a {2165} critical cartridge.
It is also important for other reasons. It is the only cartridge found in a 20 yard radius of that car of the .223 nature. That, of course, leaves a lot of argument to both sides as to why that would be. If there were three shots that killed the agent, why wouldn't you find three cartridges.
So it is critical in terms of the really relevant evidence down at the cars. If, as is the defense theory, that cartridge was salted in the car, if that is an explanation of how that cartridge got there, that somebody put it in the trunk of the car, then it is critical for us to be able to show that the chain of custody, or that an agent like Mr. Cunningham or Lodge or Mr. Hodge, or any of the others of them, either do not have a factual basis for giving their testimony or perhaps raise inferences that they are not being candid with the jury, depending on what develops. That certainly is a roper goal of cross examination in this case.
As to the extent that Agent Cunningham has now said, that he did not find that .223 cartridge but in fact signed an affidavit that said he did -- now claims that and said, "Well, I thought at the time I must have found it, that was my then recollection" -- I think there is a lot of evidence on which the jury could disbelieve {2166} that and think he is lying, similarly I think the jury might believe he is telling the truth; and in order to further develop that issue with the jury, we believe we are entitled at least to have disclosure of who it was that prepared the affidavit and typed in this Paragraph 6 which alleged that Special Agent Cunningham found the cartridge. Was there a covering letter? For example, if a covering letter said something to the effect that "Here is an affidavit, you sign it or else", obviously that would be relevant; and I don't represent that such a covering letter in those words exists. We simply don't know what covering letter exists, if any. That's why we were asking for disclosure.
We believe that any such documentation and the identity of the person who prepared the affidavit would be relevant evidence which would tend to exculpate Mr. Peltier. Obviously, if the covering letter said something to the effect of "Here is an affidavit for you to sign and send back, if you don't sign it you are in trouble", that obviously would be exculpatory. It would tend to discredit the finding of that cartridge.
We believe at the very least we are entitled to the following:
First, we are entitled to disclosure of the name of the person who prepared the affidavit. Now, we can do {2167} this the hard way by calling all kinds of U. S. Attorneys and FBI Agents in Charge and everything and asking them. I would like to think that in the expedition of this case, that would be disclosed to us. I think we are entitled to have it disclosed to us under Brady.
Secondly, we are at least entitled to have it disclosed to the Court what documents are involved so we can examine them under Brady v. Maryland. It may be those documents may not be relevant after we have viewed them.
Your Honor might make some evidentiary rulings that would prevent us showing them to the jury. We can't make that decision until we see the documents.
If the Government would disclose there were no documents, that this was sent to him in a plain unmarked envelope, he just knew instinctively, knew to sign it and mail it, it that's the case, the Government can make that disclosure and put the issue to rest as far as that is concerned.
That's what we are asking, the identity of the preparer of the affidavit, and any documentation which accompanied it when it was sent to Special Agent Cunningham.
We believe at least we are entitled to that in the context of having a fair trial.
THE COURT:  Thank you.
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MR. LOWE:  Incidentally, your Honor, I would not oppose having oral argument or having your Honor hear argument later on this day, if that would meet with your Honor's approval I would like to think if we do, we would have more than a three minute opportunity to look at this brief that Government counsel would present to the Court; and I would request the Government to give us sufficient time so that we can perhaps again check out some of the cases the Government relies on.
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THE COURT:  In the time frame of this trial how soon do you need the Court's ruling on this?
MR. HULTMAN:  Your Honor, I will place it in Mr. Lowe's hand at this moment as I normally do as I get it.
MR. LOWE:  In response to Your Honor's question that we depend a little bit on the order that the Government calls its witnesses. There are some other witnesses that will testify about this cartridge. I don't know when they'll be called. We would certainly want to get that information before those witnesses are cross-examined.
Since I don't know when they're planning to call them I can only infer within the next day they will call these witnesses since by the estimations that Mr. Hultman has given us we are nearing the end of the Government's case. So I would think that it ought to be a matter of some urgency to find out from the Government and to have the Court --
THE COURT:  And if the Court should rule that this information requested by defense counsel should be disclosed at least to the Court, is that going to result in any time delay?
MR. HULTMAN:  No, Your Honor, I don't see any problem of that kind at all. One, I would just plain like to point out, Your Honor, that Mr. Lowe by his own questioning and the preparation, that it was Mr. Lodge that specifically found the documents and he has 302's I believe in his possession that {2170} would so indicate that. So there isn't any question as to what the factual issue specifically was, is or has been.
The only new, and I submit from this point on, it now becomes a collateral issue. I have no, there's not a collateral issue as far as what Mr. Lowe has done to this point, and the Government did not object in any way.
To get into the matter concerning the affidavit and the fact that that is now before the Court as the witness clearly indicated in response to counsel's questions that it was a mistake on his part. But to now go beyond that, and that's the point that I point out in the response here, now gets into all kinds of collateral matters that have no relevancy of any kind as far as this issue is concerned. And I believe that's true under the Agwis case. The witness said it was error and that's exactly what the fact is.
THE COURT. You are getting into argument on the issue right now.
MR. LOWE:  Yes.
MR. HULTMAN:  I thought Mr. Lowe kind of discussed --
THE COURT:  I really want, at this point I just really wanted some factual information disclosed. Number one, as to whether there was such, in fact such a cartridge alone to have been found, and number two specifically what it was that the defense was asking be disclosed, and I do now have that information.
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MR. HULTMAN:  That information, Your Honor is in the transcript also from the last trial. So it's not just something that counsel is discussing here, the issue of the reference as to who found the items.
John, I'm not talking about the items that the affidavit now, I'm talking about the fact as to who found the round. That clearly has been known, known by you, was known in the last trial. That is not -- there isn't any dispute about that, is there? Do you have any dispute at all about that?
MR. LOWE:  May I make just a simple statement. There is no dispute that at one point or other, including last summer in testimony, that Agent Lodge claimed that he found the .223. But now we have Special Agent Cunningham in a written affidavit under oath claiming he found the .223 and we're not bound by his statement that he made a mistake and we are entitled to probe that the fact that Agent Lodge said he found this doesn't necessarily mean that he found it. As we note with Special Agent Cunningham there is a factual dispute, and that's the reason that we want to find the information that we seek. And I don't want to get into the merits of the argument. I don't want Mr. Hultman to think this way. There certainly is.
THE COURT:  Thank you.
MR. CROOKS:  Your Honor, there is one other matter which perhaps would be most sufficiently taken up at this time. {2172} The next series of witnesses that will be called will be the Oregon people concerning the Oregon incident. And I understand that counsel wishes that matter, prior to going into the actual facts, that they wish to make some statement on it. And I would assume that as soon as Mr. Gammage is off the stand we will start calling, perhaps it would be best to raise that right now so we don't, aren't all whispering --
MR. TAIKEFF:  Your Honor, I will not burden the Court with repeating the argument which has been made to Your Honor on several occasions concerning evidence of other crimes or in the case of relevant material. The determination of the Court was made concerning the counterweight, namely the possible prejudice.
I don't know what the Government intends to offer in connection with Oregon, but we understand from our own investigation and from pretrial discovery proceedings with the Government that it contained certain elements which either are irrelevant o if relevant are in our view prejudicial. And I think that we --
MR. CROOKS:  Well, Elliot, so we aren't arguing across, why don't I state first basically what we intend to show so that you know really what to respond to.
THE COURT:  Very well.
MR. CROOKS:  Your Honor, basically in a nutshell what the Oregon incident is, on November 14th, and there's been some {2173} testimony going to that already but not to the actual facts of the incident, at approximately 10 :00 o'clock P.M. on November 14, 1975 trooper Griffith of the Oregon State Patrol stopped two vehicles. One was the recreational vehicle, Dodge recreational vehicle, the other was a Plymouth station wagon and Officer Kramer assisted him in the stop, although Officer Griffith is the main witness.
Basically they stopped the vehicles because there had been an all-points bulletin out for vehicles described in this manner, and he pulled the vehicle over, pulled up behind the R.V., got out of his vehicle, approached it with considerable caution. He had with him a shotgun, he order the people to get out of the vehicle, one individual got out. He will describe the individual and we assume that the description will be roughly that of the defendant.
Then he asked if there was anybody else in the vehicle. I believe he also asked the name of the individual and was given a Spanish-sounding name. Then he asked if anybody else was in, some women and I believe some children got out. And about that time the recreational vehicle started pulling away from him.
The man who had gotten out first and who generally fits the description of Leonard Peltier then ran for the fence which surrounds or borders the Interstate highway. As the individual was running toward the fence, or crossing the fence, {2174} I'm not sure exactly which way the testimony will be, that individual fired a shot at Officer Griffith. Officer Griffith fired back twice with his shotgun. The individual escaped over the fence and was not seen again.
The other individuals, the women and children, were taken back, or walked back to Officer Kramer's car and then Officer Griffith chased the R.V. down the highway about a half a mile, three-quarters of a mile. He found the R.V. which had been abandoned with the lights on, motor running, doors locked, or doors closed at least, in the center median of the interstate highway.
Other officers arrived. They fired tear gas into the vehicle. They, I believe, fired a couple buckshots rounds into each ends of the vehicle. In any event they opened the vehicle after they got no response, saw there was no one there. The vehicle was impounded, search warrants obtained and both the Plymouth station wagon and the R.V. were then searched.
In the course of the search the officer found, and by this time FBI agents had already been alerted and were there with federal warrants as well to search the two vehicles. Between the state and local officers they found numerous fire arms, many of which had obliterated serial numbers. They also found, and this of course is the most important, they also found Special Agent Coler's service revolver, and this was {2175} in a paper bag. The paper bag was examined and found to contain the prints of Leonard Peltier.
There were also other prints found in the interior of the motor home which were likewise identical to Mr. Peltier's. Mr. Griffith, and I don't know what his testimony will be, but he probably will not be able to identify Mr. Peltier or give a positive identification because it was dark. He had a fleeting observation to observe under very poor conditions.
I believe that the best that he will come up with, if that, is that he was a man appearing to be similar to Mr. Peltier.
The next incident in Oregon, two young people were parked, I assume doing what young people do beside a railroad track, and an individual comes up and wants a ride. And there's a brief exchange. He's looking in the window, both of these young people were rather terrified, and they exited the scene at a high rate of speed.
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MR. CROOKS:  They were stopped by a Highway Patrolman for speeding. They told him what happened. They were taken down to the Ontario police department and shown a picture of Leonard Peltier and I think others and identified him as being Leonard Peltier. I believe the photograph identified as the one taken at King County prior to that time.
In any event, a short time later it was discovered that a ranch house had been broken into. The ranch house was owned by an individual named Eagle I believe. However, staying at the ranch house was a nephew named Barker. Mr. Barker's Ranchero and a 30-30 rifle were stolen. Mr. Peltier's fingerprints were found at the scene of the burglary.
The Ranchero was recovered 100 miles or so from Ontario, Oregon and Mr. Peltier's fingerprints were found on the Ranchero.
Then at the time Mr. Peltier was arrested in Canada, the 30-30 rifle was found in his possession with his prints on it. And also among some of the other items found, I might mention, in the station wagon, in the tool box of the station wagon were some shell casings which had been fired by Special Agent Coler's service revolver so that basically in a nutshell is what the series of events will prove. And perhaps I now defer to Mr. Taikeff and I will respond as to our justification if the Court feels any further argument is necessary {2177} as to these specific items.
We feel all of this series of events are entitled to go into evidence, all being relevant to the flight of Mr. Peltier and also to the obvious relevance of the service revolver and also to the fact that he was resisting apprehension using deadly means.
THE COURT:  Mr. Taikeff.
MR. TAIKEFF:  First on the question of relevance, Your Honor. I assume that the position of the government is that the relevance, is that the evidence will tend to show flight as evidence of guilt, am I correct about that?
MR. CROOKS:  This would be one element; yes.
MR. TAIKEFF:  Well, with respect to that portion of the testimony which we're concerned about, I don't know whether the government tends to offer into evidence only the .357 magnum which was found in the paper bag or whether it's the intention o£ the government to offer all of the weapons which were found in both vehicles. If the answer is the latter, then we identify those other weapons as items which have no relevance in this case and have no purpose except an intention on the part of the government to prejudice the jury.
MR. CROOKS:  Your Honor, I might just state for Counsel's edification, we do not intend to put in the other firearms as such. {2178}
We do intend and fully intend to put in photographs of the various other weapons that were seized.
There was also some dynamite seized. We have agreed with Counsel we'll not attempt to elicit testimony or put in photographs of that. However, we do full intend to put in photographs which the Court can see, if he wishes, of the other firearms and the shell casings and live rounds which were found in the search of the recreational vehicle and the Plymouth station wagon.
MR. TAIKEFF:  May I ask what the relevance of showing all the weapons is, Your Honor?
THE COURT:  You may ask.
MR. CROOKS:  Well, I'd be happy to respond. I'll respond now. Basically the obvious relevance is that his shows the nature of this man's state of mind and the length to which he will go to avoid apprehension.
We're talking about a vehicle which is literally loaded with deadly weapons, none of which, or most of which have no possible connection with civilian usage whatsoever. We have a large weapon with several banana clips, all fully loaded. It seems to me it's quite obvious that the relevance of that is to show when we're talking about flight to avoid prosecution, we're not talking about somebody hiding under a bed, we're talking about somebody proceeding down the public {2179} highway loaded to the gills with deadly weapons which he does in fact use against the state trooper who attempts to apprehend him. We think this dovetails completely with everything that we have been showing in this case. More particularly, the deadly response that Special Agent Coler and Special Agent Williams received when they attempted to apprehend him, or apprehend the vehicle, the red and white van, at the scene and it seems to me that the relevancy of that evidence is on its face obvious, that is shows the very nature of the flight and the very nature of the extent to which this man would go to avoid prosecution and avoid apprehension. It again fits back to what happened on June 25th as well as what happened in November.
MR. TAIKEFF:  Your Honor, I would like to ask whether it it's the position of the government that the weapon depicted in the photographs last referred to is a crime or whether it it's a weapon that is semi-automatic and therefore not a crime to possess?
MR. CROOKS:  Well, I don't frankly know and I frankly don't care. The United States is not going to attempt in any way to argue or to produce evidence of any other crime. The pictures speak for themselves.
We have got a bunch of weapons here that quite obviously from looking at them are not civilian weapons, not the type of civilian weapons that are ordinarily used in {2180} sporting activities. We have a series of deadly weapons and they speak for themselves.
I have no intention of calling a firearm expert to elicit testimony that that may or may not have been a crime. I don't think that's material and that is not a point that we intend to press. I think the weapons speak for themselves.
I think we also will indicate, as I did earlier, however, that most of these weapons have obliterated serial numbers which again I think goes to the defendant's state of mind that here he's carrying around a bunch of weapons which Counsel has been attempting to demonstrate are just nice, ordinary civilian weapons. It seems to be that obliterating the serial numbers speaks something for his intent and his state of mind and I assume that that is a crime, but I do not intend to press that again through any firearms expert.
We're attempting to show state of mind, not proof of crime as such. If Counsel wishes to point out to the jury that the possession of some of these weapons are a crime or argue that, that's fine with me. But I don't --
MR. TAIKEFF:  Quite the contrary. Our position is the government may not prove other crimes and that there is utterly no relationship between the presence or absence of serial numbers on the weapons, and any state of mind of the {2181} defendant which is relevant to any issue in this case. We specifically object to the introduction of any evidence concerning the subject of serial numbers.
If, assuming the government is correct, a person arms himself in an effort to flee, and that is a reflection of his state of mind as to his guilt or innocence, that's one thing, but whether the gun has a serial number or not is totally irrelevant to that issue and any other issue in the case.
MR. CROOKS:  Well, I think the relevance is obvious in that point, Your Honor. It seems to me that somebody that's going around obliterating serial numbers, the possible reason for obliterating serial numbers on a weapon is so it cannot be traced.
It seems to me that it's the destruction of evidence during the course of the fleeing, that that certainly is obvious. It would be just as obvious as someone carrying evidence away from a crime scene. That certainly speaks to his state of mind and I certainly don't follow Counsel's argument that that does not show anything. It certainly does. What other reason does Counsel have for taking serial numbers off of weapons other than to avoid apprehension?
MR. TAIKEFF:  To conceal the source of the weapon. That's the usual reason. And I think by this time Mr. Crooks {2182} should be sufficiently experienced as a prosecutor to realize that. And that has absolutely nothing to do with any issue in this case.
MR. CROOKS:  Well, Counsel, are you arguing that the obliteration of the serial number on Special Agent Coler's gun is not relevant? Is that your argument?
MR. TAIKEFF:  No. I'm not talking about --
MR. CROOKS:  We're talking about a piece of evidence which was taken. Special Agent Coler didn't put that in that RV, we know that. HE was dead.
MR. TAIKEFF:  Mr. Crooks is wasting his breath. I am not talking about the .357 magnum, I am talking about any other weapons in the vehicle that may have had obliterated serial numbers.
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The missing serial numbers on any other vehicles has nothing to do with any issue in this case, even the claim of the Government, that the army of the Defendant was at or present in the proximity of the Defendant and his weapons, is a reflection of his state of mind that he was guilty. The missing serial numbers don't add or detract from the question of his state of mind concerning his belief of guilt or innocence. If anything, it is an attempt to eliminate tracing of the weapon to its source, and that has nothing whatsoever to do with the carrying of the weapon or the proximity of the weapon. It is prejudicial and it is criminal, and to introduce it is to place in the jury's minds evidence which has nothing to do with any of the issues in this case, including the question of whether or not the Defendant was fleeing out of a sense of guilt; and it is on that basis that we object.
Now, I think that takes care of the first phase of it. The second of the three phases that I think Mr. Crooks addressed himself to is the episode involving the two young people. I am not sure what the relevancy is of two young people watching trains, but I look forward with some interest to that particular testimony.
And as to the third aspect of it, I think the Government -- well, I must take a step back, your Honor. I {2184} just realized something from the pre-trial discovery which was not specifically touched upon by Mr. Crooks although he made indirect reference to it.
There are certain objects in the home, in the mobile home which contain the fingerprints of the Defendant. We do not dispute that the Government has witnesses who can testify -- and they are expert witnesses, I trust -- that the Defendant's fingerprints were found on certain pieces of paper, found within the mobile home. It is the content of those papers which are highly prejudicial because they contain in one instance political literature which has no relevance whatsoever. The only reason the Government offers it, I trust they will say, is that they want to show that his fingerprint was there so that there can be no question but that he was in that vehicle.
Well, we don't dispute that the Government will introduce evidence and has evidence of the fingerprint on the piece of paper. The question is, is it necessary for the jury to read the words that were printed on that piece of paper, before the fingerprint ever could have gone on there, in order to prove that the fingerprint was there; and I think the answer is "no", and we object to that.
Now, there is one -- or possibly there are two other pieces of paper with handwritten notations. The {2185} ostensible purpose, as I understand it, of introducing those latter items of evidence is to show that the Defendant's fingerprint was found there.
Now, we understand that the Government likewise will adduce expert testimony concerning the finding of the fingerprint on that piece of paper or those pieces of paper, as the case may be; but what I am concerned with, what the defense is concerned with is the content of the writings which have nothing to do with the issues in this particular case. They are highly prejudicial, they parade before the jury other matter.
Your Honor has been very stringent with the defense with respect to what areas the defense may go into. I think the time has come for your Honor to recognize that if the Government doesn't have any evidence of the Defendant's guilt on June 26th, it should not be able to prove or get the verdict it wants in this case by proving other things which have nothing to do with those events and nothing to do with any issue which arises out of those events.
Now, if the Government wants to show that there was a piece of paper or two pieces of paper or three different pieces of paper, and on a microphone that was usable with a radio in the mobile home, all of which have the fingerprint on it, we have no objection to the offer of that {2186} evidence. What we do object to is putting in the piece of paper in the guise of showing the jury what piece of paper the fingerprint was on. The jury can't see the fingerprint on the piece of paper anyway. The jury has to rely on the expert. There is no way in the world that the jury could look at that piece of paper and say, "Oh, well, the expert is wrong. This is not Leonard Peltier's fingerprint."
Now, your Honor won't let the jurors look through the telescopic sight, and every juror in the jury box has two good eyes and could tell whether or not the agent's testimony was accurate, that he could see a person in detail enough to identify him at a half mile distance. Now, I am wondering what possible rationalization could have been offered for letting the jury look at a piece of paper. The only thing that the naked eye could detect is the printing or the handwriting on a piece of paper. The jury cannot see the fingerprint, so there is no reason in the world, unless the jury wants -- unless the Government wants the jury to see the contents of those papers which do not relate to the facts of this case; and we, therefore, object to the introduction of the pieces of paper themselves.
The last item I would like to address myself to before ask your Honor for an opportunity to consult with {2187} Mr. Lowe is that with respect to the last phase of Mr. Crooks' presentation, there is proof there of a burglary; and I think that the Government's proof should be tailored in such a way as to not present to the jury the fact that the Defendant may have committed a burglary because that is proof of another crime. The finding of his fingerprint at another location establishes his presence in that location. It is not necessary for the jury to specifically resent the evidence in such a way as to imply that the Defendant committed a burglary, because that part of it is not necessary.
We understand that the Defendant is alleged to have been in that location. We understand that the Government has a right to prove his presence in a particular location at a particular time; but it is not necessary to dress it up with a criminal accusation, and that's what the Rule concerning proof of other crimes is concerned with.
Now, if I may have a moment to confer with Mr. Lowe, Your Honor, I would like to take that opportunity.
THE COURT:  Very well.
MR. TAIKEFF:  Thank you.
(Counsel confer.)
MR. TAIKEFF:  There are two points that my colleagues urged me to call to your Honor' s attention.
The first is that there is already in the record, or {2188} if it isn't in the record it certainly will be by virtue of the stipulation that has been worked out between the prosecution and the defense, the fact that the Defendant was subject to arrest pursuant to a warrant in connection with another case. As such, his flight may have been as a result of that because that is the basis upon which they offered that evidence to begin with; and so it is confusing the jury to offer this evidence which is chocked full of all sorts of prejudicial elements in an effort to prove his state of mind when in fact they have already entered or proposed to enter into the record proof of the fact that he was already in flight for a year and a half before the June 26th incident; and they seem to want to have it both ways at the same time.
Secondly, your Honor, it has been our position -- and it is spelled out in the trial brief -- but just to make sure that there is no misunderstanding as to those aspects of the evidence which we believe the Government has a legitimate right, once your Honor makes his ruling about relevancy, to introduce into evidence, we are prepared to enter into any stipulation or concession that the Government thinks is necessary for us to enter into in order that the flow of their proof not be hampered.
We repeat that offer so that the record is clear.
MR. CROOKS:  We will rise again very briefly, I trust, {2189} Your Honor.
As I hear counsel, apparently they have backed off basically on 90 percent of the point that they were raising in their pre-trial brief. Apparently now they are arguing about how much of the detail we can put in. Apparently they now concede the obvious relevance of this chain of events.
It seems to me that -- well, one point specifically, counsel raised the question of certain paper. I assume that he is talking about the radio code, and one of the radio codes does have Mr. Peltier's fingerprints on it. The other radio code does not, but this will be offered not only for the print but to show the communication between the two vehicles. They have identical radio codes which are not the usual 10 code which is the standard CB code; but we have a five code which details many things and set out in a code form; and one of these was found in each vehicle, and certainly is relevant to show the -- not only the tie-up between the two vehicles, but the use of radios in avoiding apprehension, and again goes directly to the flight. So on that point I think the obviousness or the relevancy speaks for itself.
With regard to the other specific items, I think that's premature. If counsel is just arguing about details, that certainly could be handled at the bench, {2190} as to whether we use one piece of paper or another piece of paper but it seems to me that counsel has in effect conceded the obvious relevancy of this chain of events and showing the flight part of it. It certainly -- I can't really, I almost can't believe counsel's assertion that the jury might be confused between the flight from Milwaukee and the flight from the scene. No. 1, I don't see the difference, and No. 2, we have got numerous witnesses who have already testified that he was in flight when he left the scene; and this is obviously part of the continued flight. I, for the life of me, can't understand how counsel feels that there is some difference. Flight to avoid prosecution is flight to avoid prosecution. Using a deadly weapon to assault the officer who attempts to apprehend you is vitally relevant to the Defendant's general state of mind, and apparently counsel has pretty much conceded that now.
MR. TAIKEFF:  Does your Honor understand what our position is, that we concede on the question of relevance?
THE COURT:  I do understand what your position is, not that you concede to the condition of relevance. If the Court should hold the evidence is relevant, certain evidence is relevant, that you are prepared to stipulate?
MR. TAIKEFF:  Yes, I understand that.
{2191}
I just wanted to point out to Mr. Crooks for his edification that usually radio codes, to begin with, digit 10 as he alluded to, Indian people have been deprived for so long, they couldn't afford a code that begins with 10, so they use a code that begins with 5.
THE COURT:  The Court will rule on that motion prior to the time that the evidence is presented.
The jury may be brought in.
(Counsel confer.)
(Whereupon, at 9:45 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:)
THE COURT:  The other day I kept the jury waiting 70 minutes. Today I kept you waiting only 45 minutes. I am improving.
The delay again was the result of legal matters that had to be argued out of the presence of the jury.