PELTIER TRIAL TRANSCRIPT, SA HOESCHEN RAID ON ROSEBUD

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

SA GREGORY J. HOESCHEN, RAID ON ROSEBUD
SA THOMAS DUFFIN B
SA MAX M MARR C
REDDISH-ORANGE AND WHITE SCOUT D

MR. SIKMA: The Plaintiff calls Gregory Hoeschen.
GREGORY J. HOESCHEN
being first duly sworn, testified as follows:
{2573}
DIRECT EXAMINATION
By MR. SIKMA:
Q Would you please state your name for the jury?
A Gregory J. Hoeschen.
Q And what is your occupation?
A I am a Special Agent with the Federal Bureau of Investigation.
Q And where is your place of duty?
A I am currently working out of New York City.
Q And where were you on the morning of September 5, 1975?
A On September 5th, 1975, I participated in an arrest at Grass Mountain on the Rosebud Reservation.
Q Now, which FBI office were you working out of at that time?
A That was out of the Pierre, South Dakota, resident agency.
Q And what time of the day was it, if you recall, that you participated in an arrest on the Rosebud Reservation?
A It was approximately at daybreak, a little after daybreak, about a quarter to 7:00 in the morning.
Q Now, you say that was on the Rosebud Reservation?
A Yes.
Q And what was the nearest community to the place where you participated in this arrest?
A I believe the Rosebud itself would probably be the closest several miles.
Q How far were you from that community?
{2574}
A I would say roughly four or five miles.
Q At whose residence were you on that day?
A The residence of Al Running.
Q What time, approximately what time of the day was that at?
A About a quarter to 7:00 in the morning.
Q O.k. Was it light at that time?
A Yes.
Q Now, what was your purpose in being at this residence, specifically?
A Warrants had been issued for the arrest of five individuals who were charged with assault with a deadly weapon.
Q Do you recall who was the victim of that assault?
A I don't recall the names of the victims. There were two young Indian males who were the victims of an assault.
Q And who were the persons charged in that offense?
A The persons were Al Running, his son, Frank Running; Leonard Crow Dog, Gerald Millard and an Owen Young.
Q Now, you indicated that you were at Al Running's residence at this time. Would you tell what happened when you came to the residence?
A Yes. Myself and Special Agent Gene Crouch pulled into the driveway at the Running residence and parked in front of the residence. As we exited the car, somebody opened the door to the front of the residence, stuck his head out. At that time I recognized him as Al Running, I identified myself, {2575} saying "Al, this the FBI. You are under arrest, come out with your hands over your head."
Q O.k. Did you know Al Running?
A Yes. I had interviewed him two days prior to this arrest.
Q And what did you do next?
A He came out of the building. We secured him, and as Agent Crouch was reading him his rights, I proceeded into the residence.
Q O.k. Did you ask him any questions at that moment concerning the identity of persons in his house?
A Yes. I told him we were also looking for Frank, his son, and asked who was in the residence. He advised me that his wife and Frank were still inside.
Q Did you go into the house then?
A Yes, I did.
Q And can you tell me whether or not it was light in the house at that time?
A No. It was very dark in the house.
Q How many rooms were there in the house, if you know?
A The house was divided into actually three rooms, one after another with a door connecting them.
Q Tell me what you did and what you observed.
A As I went into the house, it was very dark; and Mrs. Running, Al's wife, approached me out of the -- in the second portion of the house. I escorted her to the front door, and {2676} then went back inside; and at that time I met Frank, Al's son, in the second portion of the house. He was coming from the back of the house, the last room in the house. Pardon me?
Q Did you hear anything at that time?
A Not right at that moment, other than I saw Frank approaching me. I identified myself, told him it was the FBI and we were placing him under arrest. I started to lead him back to the front door, and as I was leading him out, I heard some shuffling in the back room, the furtherest room in the house. I asked him who was back there, and he indicated his girlfriend was in the back room of the house.
Q What did you do at that time?
A I handed Frank over to Special Agent Palmer who was then coming in the front door, and then I proceeded to the back of the house and escorted his girlfriend out.
Q And what did you do then?
A Then I went back into the house to check to see if anybody else was in the house and turned on lights as I proceeded again to the back of the house.
Q O.k. Did you observe anything in particular as you were coming back through the house?
A As I was coming back to exit the house, after turning on lights in all three rooms, I began to see weapons throughout the house.
Q And would you state, if you recall, what weapons you {2577} observed?
A To my knowledge the first weapon I saw was a .264 Remington rifle which was leaning in the corner of the room in the second room of the house. I walked over to secure the weapon, and turning around I saw another weapon, a double-barreled shotgun in another corner. I secured that in a holster with -- it had some .44 Special, .44 Special rounds in the holster and belt, and then I proceeded to carry those out of the house, at which time I noticed by the front door two more weapons, one being a .44 single action revolver, the other being a Ruger, .44 magnum carbine.
Q O.k. Now, can you tell -- can you describe the .44 Ruger carbine?
{2578}
A Only to the extent I would have to see the weapon itself. It was -- a carbine is generally shorter than a regular rifle.
Q Did you put any marks on the weapon so it would be identifiable?
A Yes. I put my initials and also my credential number I believe.
Q I will show you what is in evidence, or marked as Government Exhibit 33-A, and ask you to examine it and tell me whether or not you can identify it?
A Yes, I can.
Q How can you identify it?
A My initials are engraved on the stock of the weapon along with the date it was obtained and my FBI credential number.
Q And what did you do with this weapon?
A I tagged it for evidence and turned it over to Special Agents Doyle and Bassett along with with other weapons to be taken back to Pierre.
MR. SIKMA: That's all I have at this time, Your Honor.
MR. TAIKEFF: May I cross-examine, Your Honor?
THE COURT: You may cross-examine.
CROSS-EXAMINATION
BY MR. TAIKEFF
Q Your appearance at the location you've testified about was in connection with a number of arrest warrants?
A Yes, sir.
{2579}
Q And this was in connection with a case where five people were believed to have assaulted two other people?
A Yes
Q How many agents were with you on that particular occasion?
A When we went into the Running residence I can't say for sure. I would say between ten and twelve agents.
Q And were those the only agents in the immediate area?
A On the Running property, yes.
**+Q Well, was there some adjacent property where there were other agents?
A Yes. There was another group of agents that were going into the Crow Dog residence.
Q How many agents were there?
A I don't know.
Q Give us an estimate.
A I really couldn't say.
Q Isn't if a fact that the total number of agents involved in the arrest of those five people and the surrounding events was about sixty?
A I couldn't say for sure how many were there.
Q Well, you're not denying that it was somewhere in that order or magnitude, are you?
A No.
Q And was the military involved in that episode?
A Not to my knowledge. Not when we went into the two residences {2580} no.
Q How about immediately before or after?
A After, I believe some military people were called in to detonate some explosives that were found.
Q And were there helicopters involved?
A Yes.
Q And how were you dressed that day?
A I had dungarees, a sweater, tennis shoes I believe, a flack vest.
Q How about the other agents, were they wearing military-type clothing?
A Nothing other than the flack vest that I would say was military unless --
Q I'm sorry, I didn't mean to cut you off.
A Unless maybe a fatigue jacket or something like that. I don't know.
Q Were you carrying any weapons?
A Yes.
Q What were you carrying?
A I was carrying my .38 Special and a shotgun.
Q How about the other agents, what kind of weapons did they carry? Generally, I don't ask you for a precise --
A Generally handguns and shotguns and some carried M-16's.
Q That's a fully automatic weapon?
A Yes.
{2581}
Q Looks like a rifle but acts like a machinegun, right?
A Yes.
Q Okay. Now, you and your fellow agents made a thorough search of this area where you all landed that day?
A Yes. There was warrants for a search also issued.
Q I see. And would you say you made a rather thorough search of the area?
A Yes.
Q In which building did you find Mr. Peltier?
A To my knowledge Mr. Peltier wasn't there that day.
MR. TAIKEFF: I have no further questions.
MR. SIKMA: That's all I have at this time.
THE COURT: You may step down.
MR. SIKMA: The plaintiff calls Thomas Duffin.
THOMAS DUFFIN
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. SIKMA
Q Would you please tell the jury your name.
A My names is Thomas M. Duffin, D-u-f-f-i-n.
Q And what is your occupation?
A Special agent for the Federal Bureau of Investigation.
Q And was that your occupation on September 5, 1975?
A It was.
Q And out of which resident agency of the FBI were you working on that date?
{2582}
A I was working out of the, well, Pierre, North Dakota I believe.
Q Pierre, South Dakota?
A Pardon me, South Dakota, yes.
Q And what is your present place of employment?
A New York City.
Q Do you recall specifically where you were on the morning of September 5, 1975?
A I do.
Q And where was that?
A At the Al Running residence in the, well, it would be the Rosebud Reservation in South Dakota.
Q Okay. Now, on that date what were you doing on September 5th?
A I was participating in a search and arrest, execution of arrest warrant on the Al Running residence and the out buildings on the Al Running residence.
Q Do you recall how many buildings there were on that residence?
A There were two wooden structures and one tent.
Q And did you come in on a road somewhere?
A I did.
Q And approximately how far was the main house from the road?
A I would estimate about one hundred feet.
Q And did you, which building did you first go to as far as {2583} the search is concerned in, on the Al Running residence on that date?
A I passed by the Al Running residence and proceeded to a blue and white wooden, light blue and white wooden building.
Q And approximately how far was that from the Al Running residence?
A Approximately seventy-five feet.
Q Okay. And in which direction?
A I would say directly behind it. I believe it would be from, as I recall, in a southerly direction.
Q Okay. About what time of the day was this?
A At approximately 6:45 A.M.
Q And was it light at that time?
A It was bright, daylight, bright.
Q It was daylight?
A It was daylight and it very bright, yes.
Q Okay. Would you tell the jury if, what if anything you observed as you proceeded to this small house away from the residence.
A As I approached the house I saw there were two agents in front of me. An Agent Gilkason and an Agent Doyle and possibly an agent I recall to my left.
I saw and heard Agent Gilkason yell out in a loud voice FBI, come out of the building".
I saw two people start to emerge from the building, a {2584} male and a female, then go back into the building, then come out a second time.
A matter of seconds after that the male and female come out of the building. The female was directed to stand to the side. The male was being checked out by Agent Gilkason, and as I passed by them behind Gilkason going into the building itself I saw that this individual had a gun. He was getting into the prone position. I saw that he had a gun, a .45 automatic on his right hip and a holster.
Q And what did you do at that time?
A At that time I entered the building. I yelled, of course, to Gilkason you know, "He's loaded, he's armed". I proceeded into the building and I commenced to search the building or secure it.
Q Would you describe the building.
A Well, the building is actually made up of two parts. There's an anteroom which I call an anteroom, which would -- is an open door. It's approximately 4 foot by 6 foot. And the main building would be approximately 8 foot by 8 foot. No more than 10 foot by 10, but closer to 8 by 8.
Q And when you went inside the building was it light or dark?
A It was light.
Q Would you tell the jury what it was you observed when you went inside the building.
A When I first entered the building I observed a mattress {2585} directly opposite me in the doorway. It was approximately 4 by 6.
Under the mattress in the, from my direction, the upper right-hand corner there was a bulge under the mattress, rather substantial bulge. I thought there was someone underneath the mattress. I yelled, "FBI, get out from underneath there and come on out", two or three times. Nobody moved.
I commenced to lift the mattress and there was nobody there at the time. Just a stack of old clothing.
Q Okay. Did you see anything around the mattress at that time?
A Immediately to the left of the, well, the mattress, adjacent to the mattress I saw two knapsacks. One like a greenish brown. I would call it a --
Q Excuse me.
A A green, there were two knapsacks. One on the left would be a greenish or a brownish color. I would call it khaki. It wouldn't be a true khaki color.
The other one was a blue and white knapsack and there was a black, it was a cross between an attache case and a small suitcase, like --
Q Have you ever seen this kind of suitcase before?
A Not that particular one I haven't.
Q Have you seen this kind of suitcase?
A Oh, yes, I have.
{2586}
Q And where had you seen it before?
A This particular suitcase just in general? No specific place?
Q In general.
A Like luggage stores and the like. But not nothing, this was, it wasn't like a government-type suitcase or nothing. This was just a plain type, ordinary type case or attache case.
Q Now, was the, would you describe were the knapsacks closed or open?
A They were open. They were actually jammed packed full.
They were filled to the point of where they were bulging out, the contents were bulging out.
Q Okay And could you see what was inside of the open knapsacks?
A One knapsack, the one I referred to as a khaki knapsack, had three sticks of dynamite protruding from them and was filled with hand grenades.
There were a couple of miscellaneous items. I believe a knife was sticking out of one also.
The blue and white suitcase, there were, there was a box labeled "DuPont Blasting Caps". As I recall red and white in color. And there was a bag containing spent rounds and numerous, various denominations, calibers I should say.
There were also numerous boxes of live ammunition. Again varying calibers, plus miscellaneous items.
A couple of {2587} walkie-talkie radios and others, I say miscellaneous items.
Q Can you describe, you indicated that there were some, what you described as hand grenades. Can you describe what they look like?
A They were practice-type hand grenades which had been armed. They had a pull friction device attached to a time fuse which in turn was attached to a blasting cap plugged into the hand grenade itself.
Q I ask you to look at page 13 of Government Exhibit 62.
(Witness examining page 13 of Government Exhibit 62.)
A Yes. That would be the type.
A fragmentation type.
Q You recognize that as a type of fragmentation type grenade which you observed at that time in the knapsacks; is that correct?
A I do.
Q What did you do at that time?
A I checked out the knapsacks a little closer for, just to see if there were any additional explosive paraphernalia or type of devices which you could use for demolitions.
I then checked to the behind of me. As you immediately come into the door of the main building there were huge stacks of food, mostly corn and eggs. I checked those also to see if anyone were behind them.
I then checked, as I say, I come into the building there were two rifles standing at the door jammed. One a .308 {2588} Mosberg, one M-1 rifle, 30 caliber Gerand, International Harvester in make, which had an obliterated serial number on it.
Q Okay. And does that rifle, you indicated an obliterated serial number. Does that have any particular type common designation?
A Well, it's an M-1. It's an M-1 Gerand.
Q Is that the name that it's commonly known by?
A I would call it that. An M-1 Gerand.
Q Is that military designation?
A That's military designation, yes. It's a military weapon.
Q Would you recognize it if you saw it again?
A I would.
Q And how would you recognize it?
A I initialed it.
Q I will show you what is marked as Government Exhibit 29-A and ask you whether or not you recognize that exhibit?
(Witness examining Government Exhibit 29-A.)
A I have initials here someplace. Just don't know if that's the one I had.
Here it is, T.M.D. right here (indicating). 957E5.
Q You initialed it?
A My initials are right there, yes (indicating).
Q Now, where would the serial number be on that weapon?
A Serial number would be on here (indicating). I understand {2589} it was obliterated here (indicating).
MR. SIKMA: May the record reflect that the witness pointed to the back of the receiver of this weapon.
Q (By Mr. Sikma) Did you have occasion to look at, or take out any of the items out of the knapsacks which you described?
A I did.
Q And can you tell me whether or not you took out of that knapsack some expended rounds or shell casings?
A I did. I took a paper bag. It was, which contained what I would estimate in excess of a hundred spent rounds.
Q What kind of rounds were these?
A Varying calibers. Anywhere from .22, .38, .357, .44 and there were some rifle cartridges also.
{2590}
Q I would show you Government Exhibit 31D and 35E and ask you whether or not you're familiar with those items.
A Yes. These were of the type taken from the paper bag.
MR. SIKMA: Your Honor, I would offer into evidence Government Exhibits 31D and 35E. I think Counsel have agreed to stipulate to the chain on these particular items.
MR. TAIKEFF: No objection subject to the record.
THE COURT: 31D and 35E are received.
MR. SIKMA: 31D as in Delta, Your Honor.
Q (By Mr. Sikma) Did you have occasion to go outside of the building again, Mr. Duffin?
A I did.
Q Did you have an opportunity to look at the person, the male individual who came out of that building?
A I did.
Q Have you ever learned of his identity?
A I did.
Q And who was that person?
A Dino Butler I know him as, but it was Darrel James Butler, his correct name, full name.
Q And have you seen him since that time?
A I saw him approximately, well, last spring, this past spring.
Q What did you do with the items that you found in that knapsack?
{2591}
A I brought them outside and placed them on a blanket and, for inventory purposes.
Q And they were inventoried on that date?
A Yes.
MR. SIKMA: I have nothing further at this time.
MR. TAIKEFF: I will have a few questions, Your Honor.
THE COURT: Very well.
CROSS-EXAMINATION
BY MR. TAIKEFF:
Q Do you know anything about an AR15 being found in connection with this activity of September 5, 1975?
A No, I do not.
Q How long have you been a special agent of the FBI?
A Going on 23 years.
Q And on how many occasions have you gone out to arrest five people, or approximately that number of people at one time?
A Innumerable times.
Q And as a general rule, let's say with respect to arresting five people, how many agents do you go with?
A Would depend on the situation and the terrain and the section. If you're talking a one room apartment house like in the city of New York, you're talking about an open area. If you're talking about farm and or mountainous terrain, it would depend completely on each particular situation.
MR. TAIKEFF: Now about situations comparable to the circumstances that {2592} surrounded the Al Runnings place. That was out in the country basically, wasn't it?
A I would say definitely; yes.
Q It was on the Indian Reservation?
A Yes.
Q Not too many houses nearby?
A Correct.
Q Open land in the main?
A No. It was pretty heavily brush there.
Q I see.
How many agents would you normally go with on an arrest party such as that?
A If I was directing the arrest, I would have at least three men for every fugitive.
Q That's 15 men?
A 15 men. And I would have for perimeter security to cut off any possible escape routes. In a situation like the Running resident, if I were directing it I would have had, if I had the manpower, I'd say an additional 20 men, roadblocks to set up on access roads. You'd have to stake out the river bordering on the property. I'd have stakeouts along the river. Again the manpower permitting, I would say conceivably at least 50 men, if the manpower --
Q You wouldn't use any jet aircraft, would you, to cover the area?
{2593}
A In that terrain I would if it were available. By jet aircraft I'm talking about helicopters.
Q Gunships with 50 caliber machine guns mounted onto the side and rockets underneath?
A I wouldn't say that. I would say a helicopter to direct the operation underneath.
Q Is that essentially how many people were involved in this arrest?
A No.
Q About 50, 60 people?
A To my knowledge, to my aspect of the operation, the portion of the operation I took part in there were 11 of us.
Q You saw what was going on around you, didn't you?
A At my immediate area; yes.
Q And here was a force of at least 50 or 60 or more agents there, isn't that correct?
A Not in my section. There was a simultaneous raid conducted on the Leonard Crow Dog residence in the area of his property. I don't know how many agents there were there. There more than at our party.
I would again hazard a guess, maybe 20. I don't think more than, I don't know for a fact.
Q How many helicopters were involved?
A To my recollection, one.
Q And what kind of clothing did you wear?
{2594}
A I wore, I would say fatigue jacket.
Q Khaki colored?
A No. Mine was a blue, actually. That was a blue, heavy jean type of, heavy type material jacket on that day and I had a pair of heavy duty brush trousers and a pair of boots.
Q Were you wearing a flack vest?
A No.
Q What kind of a weapon were you carrying?
A My service revolver.
Q That's it?
A Yes.
Q How about the other agents in your party, what kind of weapons did they carry?
A Service revolvers. There were some M16s; I don't know how many. I'd say the predominant weapon there was a service revolver. Might have been a rifle or two. I don't really, I can't say for sure.
By rifle I'm talking about our type issue, .308 Winchester.
Q Is that a standard weapon for FBI agents?
A Yes.
Q If they're issued a long gun, rifle?
A Yes.
Q With a scope generally?
A It comes both ways. More a matter of preference. Some {2595} people like the scopes, some like open sights. It's really a matter of preference.
Q Are those scopes generally variable power scopes, two to seven power?
A They're at least that much. Two to seven, if not possibly nine. I believe at least seven.
Q This is, generally speaking, at this particular time, talking about 1975, standard issue scope for FBI agents?
A Throughout the entire country; yes.
Q Now you say the house in which you found the Gerand rifle and the explosives was occupied by whom?
A Occupied by Dino Butler and Kelly Jean Macoma.
Q And when did you last see that M1 Gerand?
A Ten minutes ago.
Q Prior to that.
A Prior to that. Last June.
Q Now in connection with your various precautions and your arrival on the scene, did you come under heavy fire? Yes or no?
Q No.
Q Did you come under medium fire?
A No.
Q Did you come under any fire?
A No.
Q Did anyone resist you in any way, physically try to restrain {2596} you or interfere with your activities after you identified yourselves as agents of the Federal Bureau of Investigation? Yes or no?
A No.
MR. TAIKEFF: No further questions.
REDIRECT EXAMINATION
BY MR. SIKMA:
Q Do you know how far the Al Running residence is from the Crow Dog residence?
A I don't really. I could hazard a guess of a mile. But I'm told that, as I recall, my recollection, I believe some portion of the property down along the river might abutt or be adjacent to portions of it but I don't know for sure.
MR. SIKMA: I have nothing further at this time.
MR. TAIKEFF: Nothing further, Your Honor.
THE COURT: You may step down.
MR. SIKMA: The plaintiff calls Max Marr.
MAX MARR
being first duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. SIKMA:
Q Please tell the jury your name.
A My name is Max M. Marr, M-a-r-r.
Q And what is your occupation?
A I'm a special agent with the Federal Bureau of Investigation.
Q And to what resident agency are you assigned?
A The Pierre, South Dakota.
{2597}
Q And are you assigned to work on any Indian reservation?
A Yes. Out of my resident agency we work on five.
Q And is the Rose Bud reservation one of those?
A Yes, it is.
Q Do you recall where you were on September 5, 1975?
A Yes. On September 5, 1975, I participated in a raid on the area of the Rose Bud reservation commonly called the Crow Dog's Paradise.
Q And on that day did you go to any residence other than that of Mr. Crow Dog?
A Yes, I did. Went to that of Al Running.
Q Now do you recall what time of the day it was that you went to the Al Running residence?
A I would estimate it at about 8:00 o'clock in the morning that I was detailed to the Running residence.
Q Now I take it you were detailed to the Running residence after being at the Crow Dog residence, is that correct?
A That's correct.
Q And what was the reason for being called over there to the Running residence?
A My presence was not required at the original scene at Crow Dog's Paradise and they had gotten far greater involvement in the search of the Running property and me and three other fellows were sent over there.
{2598}
Q I ask you to turn around and look at Government Exhibit 70 which is a map of the western, northwestern part of the United States and the southwestern part of Canada. Do you see on that map the location of the Rosebud Reservation?
A I do.
Q Would you point it out for the jury?
A The Rosebud Reservation is indicated with this red dot (indicating). It is approximately 120 miles south of Pierre, South Dakota, south and west.
Q And about where is the Al Running residence located on that Reservation?
A It is approximately eight miles west of Rosebud, the City of Rosebud, in a community called Grass Mountain.
Q How large is the Rosebud Reservation, what are it's dimensions, approximately, if you know?
A Oh, I am sorry. I don't know the exact dimensions. It is not quite as large as Pine Ridge.
Q On the Al Running residence, were you given a specific assignment?
A I was.
Q And what was that assignment?
A When I arrived there, I was instructed by the agent in charge of the search to search an orange and white Scout, four-wheel drive type vehicle that was parked in the yard.
Q And approximately how far -- in what direction was this {2599} Scout parked from the main house?
A It was 45 to 50 yards south and slightly west of the house itself.
Q And would you tell the jury what you observed when you went to the area of this Scout?
++A Well, upon approaching the Scout, myself and another agent made an observation type of tour around the automobile; and when we got to the rear of it, you could see the tailgate and rear window were open and there were two open sleepingbags and a rifle scabbard laying open across the sleepingbags. Just to the rear of this open end of the vehicle, there was a large brushy area that led on south of the residence, and with the open scabbard and stuff, it delayed our search some, but we made a physical search and observed that there was no individuals in the vehicle.
Q Did you make the search around the area to see if there was anyone in the immediate area?
A Well, we swung into the brush a little bit behind the vehicle itself, but as there were other agents in the area, we didn't go any further. We proceeded with the search of the vehicle itself.
Q And where did you proceed to search in the vehicle?
A Well, our physical search of the vehicle started with the right front or the passenger floorboard area of the vehicle.
Q And did you make a systematic search of this vehicle?
{2600}
A We did. We started at the floorboard area, listed things that we found in order, and proceeded on around right back to the rear of the vehicle again, and then ending up on the driver's side with the final part of it.
Q Now, did you have occasion to search a compartment in the console of that vehicle?
A We did. I myself opened a center console type, a Nogahide type of compartment which was in the center of the vehicle with the lid opened up.
Q That would be between the two seats in the vehicle?
A Right. The Scout automobile, this particular one, had bucket seats; and this was a console that had been placed there. It probably didn't come with the vehicle.
Q And what did you observe when you first opened the -- when you first opened this console compartment, what did you observe?
A Well, the first thing that caught my eye when I opened the compartment was the stocks or the grips of a revolver that were in open view from the top of the console itself.
Q And did you notice anything in particular about what caught your eye?
A Well, this particular weapon had an obvious obliteration on the butt of the weapon and showed that the serial number had been obliterated by some mechanical means.
Q Now, when the serial number of a weapon is obliterated, do you take any action with regard to such a weapon?
{2601}
A Well, in the course of a normal investigation, if we find an obliterated serial number, we do seize it as a contraband in itself, and that's what I did with this weapon.
Q I will show you what is marked as Government Exhibit 31-A, and ask you to look at it and tell me whether or not you recognize lt.
A Yes. This is a particular weapon that we seized that day, a two and a half inch, Model 19, .357 revolver, Smith and Wesson brand.
Q Now, with regard to that particular weapon, what -- is that a weapon commonly used, do you know any group that uses that type of weapon?
A Well, it is very commonly used in my view of the weapons, the personally owned weapons of agents I know personally carry this particular weapon. I do myself.
Q What kind is it?
A Smith and Wesson, two and a half inches, .357 magnum, Model 19.
Q With regard to the type of ammunition which that weapon fires, can you tell the jury what kind of ammunition is fired or can be fired in that type of weapon?
A Yes. This weapon is .357 caliber which is a common caliber, and it basically uses the .38 caliber ammunition or .357 magnum, either one. They are shot interchangeably. You can shoot the .38 in this and the magnum also. However, you {2602} cannot shoot the magnum in a .38 revolver.
MR. SIKMA: I would offer into evidence Government Exhibit 31-A.
MR. TAIKEFF: No objection.
THE COURT: 31-A is received.
(Plaintiff's Exhibit No. 31-A, having been previously duly marked for identification, so offered in evidence, was received.)
MR. SIKMA: Your Honor, at this time I would like to read a stipulation between Plaintiff and Defendant in this case.
It is hereby stipulated and agreed that the following firearm was in the possession of the Federal Bureau of Investigation on June 26, 1975, when they entered the Jumping Bull Hall area shortly before noon and prior to their deaths: Special Agent Ronald A. Williams possessed Exhibit 31-A, Smith and Wesson, Model 19, .357 magnum revolver with a two and a half inch barrel, Serial No. 3K-10439.
That's all I have at this time.
MR. TAIKEFF: I have a brief cross examination, if the Court please.
May I have a moment, your Honor?
THE COURT: You may.
(Counsel confer.)
{2603}
CROSS EXAMINATION
BY MR. TAIKEFF:
Q Agent Marr, may I assume that you would like the jury to have only the most accurate version of all the facts that you testified to?
A Certainly.
Q Now, you referred to a place as the City of Rosebud. What is the population of that community?
A Oh, I would guess probably two thousand-fold.
Q That's on the Reservation, is it not?
A Yes, sir.
Q Now, you were at both locations that had contact with Special Agents of the FBI on September 5, 1975, isn't that correct?
A Yes, sir.
Q What was the total number of Special Agents participating in the raid or raids that day?
A I don't know. I would offer an estimate, is that all right?
Q Oh, please do.
A I would say between 50 and 60.
Q All armed?
A Yes, sir.
Q Some wearing military type clothing, khaki clothing?
A Well, some, I suppose, wore field jackets. I myself wore {2604} a levi type of wear because of the brush.
Q Some carrying full automatic weapons?
A Yes, sir.
Q How many would you say of the 50 or 60?
A Oh, I wouldn't know. There were two with me, two of my four people had automatic weapons.
Q You, one other, and the two carried automatic weapons constituted a group of four, is that right?
A In my team there were four of us, and two had fully automatic weapons.
Q Now, you came upon a vehicle which you have described as an orange and white Scout?
A Yes, sir.
Q Scout is a model or a brand name?
A It is a brand name for International Harvester Scout, I think is the full name of it.
Q I would like to show you Defendant's Exhibit 95 in evidence and Defendant's Exhibit 93 in evidence. Do those photographs depict an International Scout?
A Yes, sir.
Q And although you probably wouldn't be able to tell whether this is the same vehicle, I show you 94 for identification and ask whether that's part of an International Scout?
A Yes, sir.
Q Now, putting aside the fact that it may be International {2605} or that the model may be called the Scout, generically speaking, what kind of a vehicle is an International Scout?
!!A It is a four-wheel drive, off-the-road vehicle. I think insurance companies refer to them as a four by your recreation vehicle a lot of times.
Q Well, is it a van, a pickup, a sedan, a convertible, would you give it that kind of a description?
A This particular one was like a Chevrolet Blazer, two doors and a top on it. I don't know whether it would be a car -- like a pickup with a back, that type of thing.
Q You think it might be described as a van?
A Well, opposed to --
Q (Interrupting) Or might be described as a pickup?
A I think so.
Q Or is it a hybrid between the two?
A I think it is, yes, as a matter of fact.
Q You said that it was orange and white?
A Yes, sir, it was.
Q How distinctly orange was it, or might it have been a reddish orange?
A It could have been a reddish orange. I recall it was like the new American Safety Council's reds and oranges that came out two or three years ago. It was a rather bright color.
Q Now, in that vehicle you found that .357 Magnum, is that {2606} correct?
A Yes, sir.
Q Did you find any other weapons in that vehicle?
A Yes.
Q An AR-15?
A No, sir.
Q Was an AR-15 found that day?
A No, sir.
Q In connection with the search?
A No.
Q None at all?
A Not that day, no, sir.
Q Any ammunition for the AR-15, the .223 caliber, found in that orange and white, or perhaps reddish and white vehicle?
A There was a loaded magazine for a AR-15 type weapon, yes, sir.
Q And what was the name of the person whose vehicle that was?
A The registration papers in the glove box indicated it belonged to Leroy Casados -- (spelling) C-a-s-a-d-o-s -- approximately.
MR. TAIKEFF: Excuse me one moment.
(Counsel confer.)
MR. TAIKEFF: One more question, your Honor.
THE COURT: You may.
{2607}
Q (By Mr. Taikeff) As far as you know, in connection with that raid on the Rosebud, was any AR-15 rifle found?
A On the day of September the 5th, 1975, as far as I know there was --
Q (Interrupting) In connection with that raid and its aftermath, but not at that location?
A At that location, the following day an AR-15 was found.
MR. TAIKEFF: I have no further questions, your Honor.
MR. SIKMA: Your Honor, that's all the Government has of this witness. May he be excused?
THE COURT: You may step down.
(Witness excused.)
THE COURT: The Court is in recess until 9:00 o'clock tomorrow morning.
(Whereupon, at 5:02 o'clock, p.m., the trial of the within cause was adjourned until 9:00 o'clock, a.m., on Friday, April 1, 1977.)

TRIAL TRANSCRIPT