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

BENCH
302 TRANSCRIPTION JULY 7, 1975
CONCERNING AFFIDAVIT FROM CUNNINGHAM ON THE ".223" IN TRUNK SENT TO CANADIAN AUTHORITIES ON THE EXTRADITION DIFFERENT THAN WHAT WAS SENT FEB 27, 1976

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 THURSDAY MORNING SESSION
 March 31, 1977
 9:00 A.M.
Whereupon, the following proceedings were had and entered of record on Thursday morning, March 31, 1977 at 9:00 o'clock, A.M. without the presence of the jury, the defendant being present in person:
THE COURT:  Before the jury comes in, apparently we have one or two housekeeping matters.
Is the United States ready to make a report on the disclosure motion, Brady v. Maryland disclosure motion?
MR. HULTMAN:  Yes, Your Honor. The government is prepared and will disclose but we certainly take no position that we're ready to under Brady. We still contend it has no applicability. I wouldn't want the Court to believe that's the basis upon which we're making the disclosure. We're just plain making it.
THE COURT:  You're making it reserving your right not to make it?
MR. HULTMAN:  I want the Court to know --
THE COURT:  I understand.
MR. HULTMAN:  I'm not making it because of any basis of Brady v. Maryland. The only point I want to make, the government is voluntarily making it because the request has been made and we have tried to do that in every instance in this case, I think, with no exception, up to this particular {2398} time including that.
Pursuant to the specific request by Counsel with reference phrased as Brady, the request was made as to who was it that prepared the Affidavit and I am prepared to respond to that as to respond in greater detail.
First of all, Your Honor, this matter took place back in the month of February of 1976 and I would submit to the Court that this was prior to any time that I was involved in the case and so I'm not speaking from personal knowledge. I'm speaking from inquiry that I have made pursuant to request yesterday.
I would indicate to the Court that I believe that what I'm about to say is absolutely accurate, although I want the record to show I'm not speaking for my own personal experience in it.
Proceedings for extradition were in the process at that time. In fact, continued up until December of 1976 when late in December, and I don't know the exact date, the defendant was extradited in fact from Canada to the United States and then resulted in proceedings up to where we are now.
During the month of February there were proceedings that the transcript would indicate, and again because I didn't participate in them I'm not familiar with them. There were specific proceedings in Canada and the Canadian authority {2399} who is handling those proceedings is a gentleman by the name of Halprin. I think Counsel would recognize, his name appears in the transcript in various places. He, Your Honor, I don't know his official title, he's somewhat the equivalent of the United States Attorney in Canada for that particular province which is the province north of Seattle. I believe it's British Columbia if my memory is correct.
In order to prepare some immediate proceedings that were about to take place, because of the time frame that was involved, Mr. Halprin came to Rapid City and there prepared documents from evidence that he viewed and 302s he looked at and so forth and dictated the particular affidavit that Counsel has asked who in fact prepared it. That then was sent, and I have a copy of the cover letter and I'll give Counsel a copy of it, the Affidavit itself was then sent from the U.S. Attorney's office, not the main office but the one in Rapid City where the events we're talking about took place and Bruce Boyd, assistant United States Attorney in the district of South Dakota was in that office and he prepared the cover letter which in fact sent the document to Mr. Cunningham and I would read the cover letter that went and I think it then would lead to the testimony which was elicited on the stand here in the courtroom and would indicate the procedure.
{2400}
The letter from Mr. Boyd stated, it's dated
"February 27, 1976
Special Agent Courtland Cunningham
Federal Bureau of Investigation
J. Edgar Hoover Building
Washington, D.C.
RE:  United States v. Leonard Peltier
Dear SA Cunningham:
Enclosed please find the original of an Affidavit pertaining to the extradition proceedings now pending against Leonard Peltier. Please read the Affidavit and make sure that it is true and accurate to the best of your recollection. If the Affidavit meets with your approval, please go before the United States District Court Deputy Clerk or Clerk and sign the same under oath. Have the Deputy Clerk fill in the appropriate day and her signature along with the seal of the Court. Immediately below the lines provided for your signature and that of the Deputy Clerk there is the certification of the Federal District Court Judge sitting in that District. Please have the Clerk of Courts or someone there locally fill in the appropriate blanks and have the United States District Court Judge sign the name. I believe the blanks are self-explanatory, however, if some confusion exists, please call the United States Attorney's Office in Rapid City, South Dakota at FTS 72-1475 or commercial 605-342-7822.
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We would appreciate your expediting the signing of this Affidavit and returning the same to this office at the earliest possible moment.
Very truly yours,
WILLIAM F. CLAYTON
United States Attorney"
That then leads to the exact testimony that was in in the courtroom that Mr. Cunningham testified to. Therein, Your Honor, I would just add that this was in February of 1976. I do know of my own knowledge that in the months of March, April and May and then during the course of the trial where the issues, only the defendants were different as far as this case. That in discovery there all of the 302s, 302s and all of the lab reports concerning the objects we're now talking about and concerned with furnished to Counsel for the defendant and I would note that two of those Counsel who are sitting at the table right now were Counsel at that particular time, Mr. Ellison and Mr. Lowe. I no way am trying to infer to bind this case in any way but just a matter of knowledge within the reservoir of knowledge known and by their organization that is constantly referred to here, not referring to Mr. Lowe's organization, but an organization know as WKL, the Wounded Knee Legal Offense-Defense Defense Committee and the same investigator that was in that particular proceedings was the same investigator in this particular proceedings.
{2402}
Those materials included a 302 report which was dated, interview 3-09-75, and transcribed July 7, '75, of Mr. Winthrop Dale Lodge who in fact was the fingerprint man who did the finding of the exact object, and is clearly related in that document; and I would like to make that a part of the record in these proceedings right now because I am not sure whether it is in evidence or not, but I would like it as far as this proceeding wherein Item 29 on Page 4 refers specifically to the very object of which we are discussing and is concerned with here.
That information became a part of the trial record in the earlier proceedings which we are talking about, so I just want to point that the finder was known on a 302. The finder has been known at least within the material of the Defendant's counsel and those doing research, and so forth for them; that it was a matter of record in the last trial. It was a part of the transcript in the last trial, and that's the best and the most total and every explanation that I can give concerning the matters that were specifically requested and far beyond the issues and the matters that were specifically requested; and I would like this particular document to be marked as a Government's exhibit, whatever would be appropriate to designate it as different, as far as just this hearing {2403} and not as far as evidence in the trial itself.
Now, if the Court has any further question that they would like to ask of counsel, I certainly will do my best to respond.
THE COURT:  If you are going to mark that as an exhibit, I would suggest you also mark that covering letter.
MR. HULTMAN:  Yes, your Honor. I am sorry, I meant to do that.
There are matters, of course, which are for this hearing and in camera proceeding alone and not as far as trial.
Now, maybe the 302 will become evidentiary matter, I don't know; but I want it at least in the record at this time as far as the hearing.
MR. LOWE:  May I briefly respond, your Honor?
THE COURT:  You may.
MR. LOWE:  I would hope that one thing I would say we would finally get on the record, that Mr. Hultman would finally understand -- I think your Honor has acknowledged this time and time again, and Mr. Hultman insists on standing up time and time again saying it over and over again -- that is, we had a six week trial last summer. We have, I would guess, maybe eight or ten file cabinet drawers full of papers. I have probably read {2404} 10 percent, 20 percent of those papers personally. I have no idea or recollection of any particular ones that I read last summer. We had a six week trial. I may have even referred specifically to some of those documents in the trial, I may have cross-examined somebody using them. I have made no general attempt to go back and read the transcript. I have made some specific attempts in specific instances to refresh my recollection.
To say, as Mr. Hultman did, that the defense team itself had knowledge of this, as opposed to at some time having seen or read it, we do not have knowledge of it. The first that I had consciousness in this trial of that affidavit was when we received the 3500 material on Special Agent Cunningham. I would guess it was three or four days, two or three days before he testified. I can't say that I did or did not see that affidavit before. I say that I had absolutely no recollection of having seen it. I may even have a piece of paper stating that I saw it, when I received it in the 3500 material last summer.
That's a far cry from saying I was conscious of it or aware of it. I don't believe I did see it last summer. If I did, I certainly have no consciousness of it, or anything that went on.
The fact that a couple of attorneys here are the same as last summer does not mean we had knowledge. He is a {2405} different Defendant. He is entitled to get all due process, all Brady versus Maryland disclosures, all 3500 material, all due process he is entitled to under the law.
I think your Honor has acknowledged that time and time again. I would hope that issue would be solved and put to rest once and for all.
As to the specific information in this covering letter which is from Bruce Boyd who is one of the Assistant United States Attorneys who has been sitting here all during this trial, God knows it would have been simple enough for him to stand up and say, "I sent the covering letter."
Mr. Hultman says it goes to the voluntariness. I would submit that Mr. Peltier goes back to the jail voluntarily every evening. That doesn't mean there is not some compulsion that makes him go back every day.
I think we are clearly entitled to have it under the Brady case, and I would advise your Honor, that we will take it under advisement, we will look at it and the first opportunity will advise the Court if we feel anything further is necessary or whether we are entitled to anything further in the way of disclosure.
Having just heard it read and seen it for the first time, I don't have any immediate reaction.
We obviously appreciate cooperation from the {2406} Government, and we have been giving cooperation to the Government in mutual exchanges. We are clearly entitled to this information.
As far as what Mr. Halprin may have done or not done, we will have to take this and digest it and see what we can find.
I hope we can put to rest the myth that the Defendant and his team were somehow on notice because of things that were done last summer.
MR. HULTMAN:  I want to respond very briefly, two items. One, if Mr. Lowe interpreted what I said to be that he specifically had the knowledge, then either I didn't say what I intended to say or he didn't grasp what it was I was trying to say, and I won't get into which it was, maybe a little of both.
All I am trying to say, your Honor, is that within the Rules, access to information, and what is within the capability is what I am talking about. I at no time could have any knowledge as to what Mr. Lowe may or may not have read. I am only referring specifically to accessibility, period, so I make that very clear.
The other thing that I just want to point out is the fact that within the accessibility it is very obvious that the matter did come to the attention of Mr. Lowe, or the issue would not have been raised; and therein lies {2407} the fact that I am just trying to make the point, that the materials have been within the capability and the accessibility of the counsel for the defense in this particular proceeding, and that's the only point that I am trying to make.
THE COURT:  I think my only comment is that if we pursue this discussion any further, we will certainly be creating a situation where the court reporter is going to be making undue profits from the transcript.
MR. HULTMAN:  An unjust enrichment, your Honor, is that it?
THE COURT:  Plaintiff's Exhibit 149, Plaintiff's Exhibit 150, will be made a part of the record on this Brady versus Maryland disclosure matter. Those exhibits will not at this time at least be made available to the jury.
$MR. LOWE:  Could your Honor just identify the 302 by date? I think we probably have that.
THE COURT:  The Exhibit 150 is a 302 with the date of transcription of July 7, 1975.
MR. LOWE:  Thank you, your Honor.
THE COURT:  And the letter, letter marked as Plaintiff's Exhibit No. 149, dated February 27, 1976, signed by Bruce W. Boyd, Assistant United States Attorney.
MR. LOWE:  We have a copy. He just handed us one.
{2408}
#THE COURT:  The Court reserves ruling on Defendant's Exhibit 145 which was the second affidavit of William P. Zeller, and finds that there is nothing inconsistent in that affidavit with Mr. Zeller's testimony on the witness stand so the exhibit will not be received.
MR. ELLISON:  Your Honor, we would like to offer the March 4th affidavit -- that was dated March 4th, 1976, with the affidavit dated April 6th, 1976, because I believe the discrepancies are apparent with regard to Paragraph 10.
{2409}
THE COURT:  I would have suggested that you offer, that the offer should have been made yesterday. Now I'm going to have to reserve my ruling on that in order to examine that affidavit.
MR. ELLISON:  All right. I appreciate that.
MR. CROOKS:  Your Honor, might I just state the United States response? This is exactly what we've seen again and again, the setting up of a straw man.
Mr. Zeller testified very candidly concerning both affidavits. He testified that there was an error on the first one, that that was caught before it was sent, that the correction was made, and the affidavit sent in correct form to the Canadian officials.
He's testified about it completely. It has absolutely no relevance to putting those affidavits in themselves. He's testified, his testimony is the best evidence of what happened, and the affidavits themselves are completely cumulative and have no probative value at all to this proceeding. The testimony was quite candid. He testified there was an error and we would assume that that would be the only reason that the affidavit would be admissible at all was to prove that there was in fact an error.
The error was admitted and we do not feel that that affidavit should be put in. His testimony should stand on its own weight.
{2410}
MR. TAIKEFF:  Well, Your Honor, in response to Mr. Crooks I would like to ask this question, and perhaps Mr. Crooks would like to answer it. When a witness gets on the stand and testifies that he saw a person at a certain location holding an M-1 Gerand rifle, which is a rifle that loads through the top and works in a semiautomatic fashion, I wonder then why the Government offers the rifle in evidence and why Your Honor allows it in.
Of course I hear some noises coming from Mr. Crooks, not in the form of words, but in guttural sounds and I suspect that maybe I've hit the center of the target.
The fact of the matter is that each and every juror has five senses or more, but at least five that we know of, and they hear the testimony. But they have eyes, and those eyes are supposed to be put to work. So we offer them, the real evidence that goes hand in hand with the oral testimony so they can look at the thing which they've just heard the testimony about. And if it is appropriate to put the M-1 Gerand rifle in then it's surely appropriate to put the affidavit in.
If it's appropriate to put the shell casings in, everybody presumably knows a shell casing after you see the first one, why we have all the shell casings in evidence, I'd like Mr. Crooks to explain. And when he gets finished I'd like him to explain then why the affidavits don't come {2411} in.
MR. CROOKS:  Well, Your Honor, I ordinarily, I will have to concede that I've admired Mr. Taikeff's presentations. However, this one completely escapes me. If Mr. Taikeff is contending that they're the same thing between offering documents which are used solely for impeachment as there is to offering hard evidence which proves a fact, and he doesn't understand the difference, I'm sure I can't explain it to him. If he can't comprehend the difference, I would suggest that I would possibly be unable to do it also.
The fact of the matter is that Mr. Zeller testified fully about the supposed inconsistent statement. I think under the rules of evidence any further offer on that in collateral. If he had denied the inconsistent statement then obviously you could put in the affidavit to show that the inconsistent statement was made. But I think it's very Horn Book Law that you can't put in evidence of collateral matters once the inconsistent statement has been admitted. It's as simple as that.
If counsel has never heard of that rule of law then I suspect that he should refer back to some of his Horn Books that he had in law school.
MR. TAIKEFF:  Well, I didn't go to a law school where they used Horn Books, Your Honor. We worked by the case method of the law school I attended.
{2412}
However, I think that Mr. Crooks misses the point that when we offer the two affidavits they are prior sworn statements offered as evidence in chief. Maybe that's why he doesn't understand the offer.
THE COURT:  Are we ready for the jury?
MR. TAIKEFF:  No, we're not Your Honor.
Your Honor, there's a proceeding set for 1:30 this afternoon. I thought I would advise the Court that at least two of the defense team are potential witnesses at that proceeding. I understand that Judge Davies is going to have a hearing on the contempt citation against Mr. Trudell; and I also understand that others who are involved in this trial may be called as witnesses.
Therefore, I give notice to Your Honor that it may be necessary to suspend these proceedings, and in view of that, and in view of the fact that the matter concerns so closely this particular case, but does not involve an alleged contempt in the presence of the Court, perhaps Your Honor would conduct that hearing. I think overall we would probably do it in a more expeditious way because Your Honor is personally familiar with all of the general surrounding circumstances, if not the specific incident.
Judge Davies would have to familiarize himself with a much more broader range of fact to make a determination, and that would prolong the absence of certain participants {2413} in this trial. So I think it would be most expeditious and cause us the shortest delay or recess if Your Honor would have that matter transferred to himself.
THE COURT; Well, in response to your second request, Judge Davies has agreed to handle it and that will not be changed.
In response to your first request I do not intend to, with a sequestered jury and the number of people involved in this case, I do not intend to suspend the trial in this matter by reason of those proceedings.
MR. TAIKEFF:  Well, what's going to happen when trial counsel is on the witness stand?
THE COURT:  I'll meet that problem if it arises.
MR. TAIKEFF:  All right. Then I'm just advising Your Honor that that is a real possibility.
THE COURT:  It certainly would not be necessary for trial counsel to be down there except at the time that it was necessary for him to testify.
MR. TAIKEFF:  That's quite correct, Your Honor.
THE COURT:  Secondly, I do not understand why it would be necessary for trial counsel to testify in that matter.
MR. TAIKEFF:  Because trial counsel was a witness to certain events which occurred in the corridor.
THE COURT:  And I would not expect that it would be {2414} necessary for more than one trial counsel to be absent from this courtroom at any one time.
MR. TAIKEFF:  Well, when one is absent, Your Honor, there is a sufficient absence to warrant a cessation in these proceedings. We have been us divided up the work in certain ways so that it is possible for one of us to be across the hall in 326 where we are not more than fifteen seconds apart.
But we're not going to proceed with one of us in another building, perhaps tied up for another half hour because there is no way that it is then possible for the remaining trial counsel to have immediate access to the other trial counsel.
THE COURT:  I would be very surprised if those proceedings were held anywhere except in this building.
MR. TAIKEFF:  I was told yesterday, but I may have been misinformed, that the proceedings were to be held in the new federal building.
THE COURT:  There is no other courtroom, there is no courtroom in the new federal building. The only other courtroom would be the small courtroom on the second floor down on the end of the corridor.
MR. TAIKEFF:  That changes the complexion of the situation.
THE COURT:  That is where I would anticipate that {2415} proceedings would be held.
MR. TAIKEFF:  My statement was predicated on what I was told yesterday that it would be held in the new federal building.
THE COURT:  I could be mistaken, but I do know that there is no courtroom facility in that building.
MR. TAIKEFF:  Thank you, Your Honor.
THE COURT:  I could be mistaken as to maybe the Judge plans to utilize some other room. But the Clerk tells me he'll find out for me.
MR. TAIKEFF:  Thank you very much.
THE COURT:  We'll get back to that.
DEPUTY MARSHAL:  Your Honor, that will be held in the bankruptcy court at 1:30.
THE COURT:  Ralph, the marshal apparently knows where it will be held. It will be held just one floor down at the end of the corridor.
Are counsel now ready for the jury?
MR. TAIKEFF:  Yes, Your Honor.
MR. CROOKS:  Yes, Your Honor, we are.
THE COURT:  Jury may be brought in.