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

BENCH OREGON STOP  NOT PERTINENT / PREJUDICIAL..A
SA DAVID MILAM {OREGON STOP}  B

VOLUME 12

MR. CROOKS:  The Government next calls Special Agent David Milam.
MR. TAIKEFF:  While we are waiting the witness' appearance, may we approach your Honor?
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF:  Your Honor, Mr. Lowe is especially concerned with the state of the record, and so I come forward not to burden either the Court or the record, but to make sure that there is no misunderstanding.
I think our position is clear concerning evidence that we feel is extraneous to the issues in this case. The testimony of the last witness touched upon many things which we think are highly prejudicial.
I think the record is clear that we took the position that the entire episode, every aspect of it is irrelevant to the case; but just to make sure that the record is protected and I satisfy Mr. Lowe's sensitivity, at this {2434} particular time I am going to move for a mistrial on the basis of the testimony that has accumulated thus far in connection with the Oregon incident.
MR. CROOKS:  We, of course, resist that. We believe that all this evidence is relevant. It is pertinent to the issues in the case.
THE COURT:  Well, I think also the record is clear that that came in over Defendant's objection. The motion for mistrial is denied.
MR. TAIKEFF:  May I assume, your Honor, that it would not be necessary, therefore, to object to each particular bit of evidence or reference to a particular object as long as it is clear that we are dealing with a phase of the case that we have made a broad objection to?
THE COURT:  It is my understanding that the Defendant is objecting to any evidence relating to this Oregon incident.
MR. TAIKEFF:  Thank you, your Honor.
MR. CROOKS:  Your Honor, there is one other thing while we are waiting for the witness also, the United States would at this time also reoffer Exhibit 50, and 51, which are the communications devices seized by Special Agent Adams. We feel there is more than adequate foundation at this time to file these and --
THE CLERK:  (Interrupting) It is not 50 and 51.
{2435}
MR. CROOKS:  50-A and 50-B, I stand corrected, your Honor.
Insofar as these devices, we think that there is more than adequate evidence now to tie these up, and show the relevance. They were received by Special Agent Adams in the white house at the crime scene. There was testimony that the red and white van contained communication devices, and I believe also there was testimony from Mr. Brown concerning communication devices.
We have also now shown further use of communication devices by the Defendant, tying him to the recreational vehicle and the Plymouth; and we feel at this point we have shown relevance for those exhibits, and we would offer them as such.
MR. LOWE:  Well, your Honor, first of all, I would point out that the Government represented -- I am not saying it wasn't in good faith -- they represented that Mr. Draper was going to testify that there was actual communications by radio between the residences and Tent City. No such testimony was even sought, much less given.
There is no testimony to show that those two handi-talkies, first of all, were even functional; second of all, that they were on the same frequency as an radios that were found in Tent City; third, that any of the Tent City radios were functional, or if they were functional, {2436} were connected up in a way they actually did function at any time on June 26, 1975.
There is no testimony that anybody ever used a radio to communicate from the residences to Tent City or vice versa.
There is no testimony to show that the radios in the red and white van in Tent City were even capable of communicating on the same frequency as the radios in the white -- residences; and further, the natural inferences that in the middle of fire fighting -- gun fighting, a shoot-out where people are fleeing the scene, that these two radios were in their chargers inside the house, belies the fact they were used for any reason on June 26th. Nobody in their right mind would think that these people who were in the middle of a shoot-out would reinsert them in the chargers and leave them there when they were fleeing from the FBI. All the natural inferences are against the proof that the Government is trying to suggest, and in fact there is no evidence to support it, absolutely no evidence.
MR. TAIKEFF:  And the property of others.
MR. LOWE:  Also, the property of others. There has been no connection with Mr. Peltier in any way.
MR. TAIKEFF:  Or any of the people in Tent City.
MR. LOWE:  That's right.
{2437}
MR. CROOKS:  I don't wish to prolong this argument or go into it. It seems to me we have shown adequate connection.
It seems to me the fact they were plugged in would indicate just as well they were being recharged for the possible escape, and apparently left behind in a hurry. There is just as much credibility to that as Mr. Lowe's argument. I don't feel that there is anything more particularly to argue. I think the Court has heard all the evidence, and we are prepared for the Court to make a ruling at this time.
MR. TAIKEFF:  The Court should be reminded that was somebody else's house. That wasn't the home of anybody connected with this case.
THE COURT:  I am going to continue to reserve my ruling until I hear all the evidence in the case before I act on that.
MR. CROOKS:  All right.
(Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
DAVID A. MILAM
being first duly sworn, testified as follows:
 DIRECT EXAMINATION
By MR. CROOKS:
Q  Mr. Milam, would you again repeat your full name for the {2438} record, please?
A  David A. Milam.
Q  And where do you live, sir?
A  Portland, Oregon.
Q  And what is your occupation?
A  Special Agent with the FBI.
Q  How long have you been a Special Agent with the Federal Bureau of Investigation?
A  Approximately six years.
Q  And calling your attention back to November of 1976, what was your duty station -- or '75, what was your duty station at that time?
A  Portland, Oregon.
Q  Mr. Milam, with regard to the matter which we have been hearing today, were you called upon to observe or conduct a search with regard to a Dodge motorhome and a Plymouth stationwagon which had purportedly been involved in an incident around Ontario?
A  Yes, I was.
Q  All right. Would you describe how you became involved in this investigation?
A  I originally left Portland with several other agents for Ontario, oh, it would have been Saturday, November 15th, arriving in Boise on Saturday, the 15th, drove by car to Ontario, Oregon, on Sunday, the 16th.
{2439}
At that time we were awaiting a Federal search warrant for these vehicles and also awaiting the execution of a State of Oregon search warrant, so I was in Ontario on the 16th and actually conducted the search with the Federal search warrant on the 17th.
{2440}
Q  All right. With regard to the State search, were there special agents of the Federal Bureau of Investigation on hand at the time that the State search was being conducted in the area of the search?
A  To the best of my knowledge there were at times.
I personally was present, this would be on the 16th, as an observer for part of the state search warrant.
On the morning of the 17th when they completed their search in the Oregon National Guard Armory in Ontario, Oregon, I was not present.
Q  Insofar as the federal search was concerned did you find various items in the motor home, or the Plymouth station wagon yourself?
A  Yes, I did.
Q  And I would again refer to you Exhibit No. 61 which is the photograph, the first page, which is the photograph of the motor home and the Plymouth. Were these vehicles that were part of the search?
A  Yes. These are the two vehicles that I did search.
Q  All right. Calling your attention to the recreational vehicle first. I would hand you Exhibit No. 38-G and ask if this is an item you can identify?
A  Yes. This is a can of Outers gun cleaning oil which I did remove from the motor home. It does bear my initials.
Q  Now, with regard to that particular item that you have {2441} before you described as a can of gun oil, 38-G, where was it found?
A  This particular item was underneath the dinette seat on the left-hand side, approximately the middle of the motor home.
Q  All right. And do you recall when it was found?
A  Yes. This would have been found by me on Monday the 17th of November.
Q  All right.
MR. CROOKS:  United States will offer Exhibit 38-G.
MR. TAIKEFF:  No objection, Your Honor.
THE COURT:  38-G is received.
Q  (By Mr. Crooks) I hand you 38-H, and I do not want you to in any way mention the contents of this, but what is that, just descriptive, do go into the contents at all.
A  This is one sheet of paper bearing printing that I removed from the recreational vehicle motor home.
Q  And was this found by yourself?
A  Yes, it was.
Q  And where was it found?
A  This was found in the rear lower left, referring to an upper bunk area and lower seating area of the motor home. It was on the lower left-hand side of the motor home.
Q  All right. And that was found by yourself again on the 17th; is that correct?
A  Yes, it was.
{2442}
Q  I now hand you Exhibit No. 38-I. Ask if you can identify these particular documents?
A  Yes, I can.
Q  And what are they?
A  These are 9, what appear to be approximately 3 by 5 pieces of white paper with black numerals, letters, that are removed from inside a folded up blue baseball cap that I located in the recreational vehicle.
Q  Where was that located?
A  These particular items, well, again these particular pieces of paper were contained inside of a blue baseball cap, which was the blue cap being on the right-hand side in a closet. Right approximately middle section of the motor home.
Q  All right.
MR. CROOKS:  United States will offer --
Q  (By Mr. Crooks) And again this was found on the 17th?
A  Yes, sir.
MR. CROOKS:  Offer 38-I.
MR. TAIKEFF:  No objection.
THE COURT:  38-I is received.
Q  (By Mr. Crooks) All right. Now, insofar as Exhibit 38-I you described these as having been found wrapped up in a baseball cap found, I believe, in a closet if I recall your testimony?
A  Yes.
{2443}
Q  Insofar as 38-I is concerned were there documents similar to that located in other parts of the vehicle?
A  Yes, there were.
Q  The recreational vehicle.
And where was that?
A  Located by myself?
Q  Yes.
A  One which bore the similar writing; however, it was one piece of paper as opposed to the nine.
Q  Right.
A  Was also found in the front section of the vehicle.
Q  And that would be up in the driver's section or the passenger section or where?
A  It would be considered the driver's compartment.
Q  Okay. But these themselves were not in the driver s compartment?
A  No, sir. These were actually contained in a blue baseball cap in a closet.
Q  Now, with reference to the Plymouth station wagon, did you also find certain items located in that?
A  Yes, I did.
Q  I first hand you Exhibit 38-J and ask what that is?
A  This is one sheet of white paper with similar numerals, words, similar to item 38-I.
This particular one I located in the Plymouth station {2444} wagon.
Q  And whereabouts in the station wagon?
A  This particular one was inside the front cover of a short-wave radio book located, it would be directly underneath where the driver would sit. It was not under the seat or out under the feet, just directly beneath the front edge of the seat on the driver's side.
Q  All right. And that was inside the cover of the book; is that --
A  Directly inside the front cover.
Q  All right. And that, have you compared the entries on those, on 38-J with the entries on 38-I?
A  Yes, I have.
Q  And do they correspond in any way?
A  They appear to be similar.
MR. CROOKS:  Offer 38-J.
MR. ELLISON:  No objection to Government's Exhibit 38-J.
THE COURT:  38-J is received.
Q  (By Mr. Crooks) Officer Milam, as a special agent for the Federal Bureau of Investigation do you have occasion to use communication devices of any type other than phone and so forth?
A  Yes, we do.
Q  And what type of devices would these be?
A  Well, we would use a radio transmission from car to car {2445} and car to base station.
Q  In the use of a short-wave radio system is it common practice to use a code of any type?
A  Yes, sir.
Q  And would you basically describe, well, what code do you ordinarily use, what's the standard code used by police officers and others?
A  Probably two basic ones. One is referred to as a 12 code. The FBI uses a 10 code, basically saying the same thing with just different numerical designations.
Q  All right. And what is the purpose of a code? I mean, why do you use a code as opposed to just saying it?
A  Well, I would think it would probably be several purposes. One would be a short amount of time on the air where you can use numerals to signify a sentence for example.
Also to prevent other people from necessarily knowing what you are talking about.
Q  All right. And insofar as the 10 code, is that relatively standard code used among law enforcement officials?
A  Yes, it is.
Q  And do you know whether or not that 10 code is commonly used also by C.B.'ers or C.B. radioers, if you know?
A  Definitely know that parts of it are. Whether, to what extent they would use all of it, I do not know.
Q  All right. In any event with regard to what you've {2446} described earlier as appearing to be a code on J and I, is that the standard 10 code?
A  Definitely not.
Q  With regard to the entries referring specifically to 510, what is the entry for 510?
A  510 on both of these items, 510 is the code for bomb.
Q  Do you have any way of knowing what that would refer to?
A  No, sir.
Q  With regard to some of the other entries here. We have 54. What is that?
A  A 54 is a designation on both of these for pigs.
Q  And would you have any way of knowing what that would be referring to?
A  No, sir.
Q  With regard to this code, we have a designation 527. What is that?
A  Again 527 on both codes is the numeral designation for ammo.
Q  What about 529?
A  529 in both cases is for caps.
Q  And what about 528?
A  528 is an abbreviation I assume for dynamite.
Q  From your knowledge and information as a law enforcement officer is there any connection between dynamite and caps?
A  Yes, sir.
{2447}
Q  And what are caps as they would refer to dynamite?
A  Caps are usually referred to, you are referring to either an electrical or nonelectrical blasting cap which are used to initiate the actual detonation of the dynamite.
Q  All right. With regard to this particular code there's a designation of 524. And what is that, what is the designation there for 524?
A  524 is a designation for roadblock.
Q  All right. Moving on to another area then. With regard to your search of the Plymouth automobile did you find what appears to be a receipt of any kind, and I show you Exhibit No. 40-B?
A  Yes. I did find this receipt in the Plymouth station wagon.
Q  And where was it located in the Plymouth station wagon?
A  The glove compartment, right-hand side of the dash. Well, dashboard inside the glove box.
Q  What is the date again that this was found, if you recall?
A  This was November 17, 1975.
Q  Now, with regard to this particular item is it in substantially the same condition it was found, other than the laboratory processing chemical treatment?
A  Yes, it appears to be.
Q  All right.
{2448}
MR. CROOKS:  Offer 40-B.
MR. TAIKEFF:  No objection.
THE COURT:  40-B is received.
Q  (By Mr. Crooks) Insofar as Exhibit 40-B is concerned, I would also hand you 40-C, which has been introduced in evidence by Mr. Van Pelt as a record of Bill Kouch Motors having sold a car to an individual identified as Mr. Peltier. And I would ask you to compare that 40-C with 40-B if you would, please.
A  40-B appears to be a Xeroxed copy of 40-C.
Q  Does it appear that most of the entries on 40-C also appear on 40-B?
A  Yes, sir.
Q  Calling your attention particularly to the bottom of the signature of Mr., someone, Cisco I believe, slash Van Pelt, does that appear to be the same?
A  Yes, sir.
Q  All right.
MR. CROOKS:  Your Honor, at this time we would re-offer Exhibit 40-C. I believe that it was offered subject to connecting up, and we believe that it is connected up at this time.
MR. TAIKEFF:  No objection.
THE COURT:  Very well.
The record may show the condition under which 40-C was {2449} received has been fulfilled.
Q  (By Mr. Crooks) With regard to your examination of the recreational vehicle and the Plymouth station wagon did you make any observation concerning whether or not the two vehicles were equipped with any type of communication devices?
A  Yes. At the time of my examination both of them were.
Q  And what would be the nature of these communication devices?
A  Both the station wagon and the recreational vehicle motor home were equipped with citizens band radios. The motor home was also equipped with what is referred to as a scanner.
Q  What is a "scanner"?
A  Scanner is a device whereby, depending on how it's equipped, you can pick up the transmissions of other short-wave transmissions. Such as police frequencies.
It will pick up more than one, whichever one is on the air at the particular time.
Q  With regard to those citizen band radios in both vehicles, from your observation were they tuned to any particular channel, citizen band channel?
A  Yes. At the time I conducted my search, both the citizen band radio in the motor home and the Plymouth station wagon were on Channel 11 and both were in the "on" position.
Q  All right.
MR. CROOKS:  I believe that's all we have, Your Honor.
{2450}
MR. TAIKEFF:  I have a few questions, Your Honor.
THE COURT:  You may question him.
MR. TAIKEFF:  Thank you.
{2451}
 CROSS-EXAMINATION
BY MR. TAIKEFF:
Q  I'm placing the radio code before the witness.
Now these activities about which you've testified occurred in the month of November, 1975, is that correct, sir?
A  Yes, sir.
Q  And at the time that you first went out that day or evening to perform these professional tasks, were you aware of the fact that there was a Federal investigation concerning the death of two FBI agents on the Pine Ridge reservation?
A  Yes, sir, I was.
Q  And did you learn of this only in connection with or in your capacity as an FBI agent?
A  Learn of which, sir? The investigation, that there was an investigation?
Q  That there was such an incident and there was a search on for certain people.
A  I don't understand the question.
Q  Did you hear about it on television?
A  No. I'm sure it was a connection with my official capacity as an agent.
Q  You never read about it in the newspapers?
A  I'm sure I did.
Q  It got rather widespread publicity during the months following June 26th, didn't it?
A  That I'm not sure of.
{2452}
Q  When you read about it, you read about it in Oregon, or were you somewhere else?
A  IF I read about it, it would have to have been in Oregon.
Q  Did you read about it?
A  I do not specifically recall.
Q  Did you ever hear it on the radio?
A  I don't recall, sir.
Q  Now there was a can of oil which was introduced into evidence while you were testifying. Do you recall that?
A  Yes, I do.
Q  May I assume that you acquired that can of oil before any fingerprint tests were performed on it as far as you know?
A  Yes, sir.
Q  And when you first acquired this can of oil, did it have any oil on the outside, on the surface of the can?
A  Did it have any oil?
Q  Yes. I think that's what I said.
A  I don't recall.
Q  Perhaps we can refresh your recollection.
I'm placing that exhibit before you, sir. Is that the can of oil I questioned you about a moment ago?
A  This is the can of oil that I found; yes, sir.
Q  Did it have a cap on it?
A  That I don't recall.
Q  Is there a cap in that plastic bag?
{2453}
A  I don't see one; no, sir.
Q  Do you see anything else besides the can of oil in there?
A  There's a piece of paper.
Q  Anything else?
A  No, sir.
Q  Put it near your nose and take a deep breath.
A  (Indicating.)
Q  Smell anything?
A  Yes, sir. I smell oil.
Now where was that can of oil when you found it?
A  That was under one of the dining room, dinette dining room seats in approximately the center of the motor home on the left-hand side.
Q  Did it have a cap on it at that time?
A  I do not recall it, sir.
Q  If it did and you saw it, you would have taken that cap and put it in the plastic bag, wouldn't you have?
A  More than likely; yes.
Q  Now having seen it and smelled it and touched it, does it refresh your recollection that when you picked up the can underneath that place where you found it that there was the feel of oil on the outside of the can?
A  No, sir, it does not.
Q  Would you say that there was no oil on the outside?
A  No, I could not.
{2454}
Q  I'm placing before you, sir, an affidavit of William P. Zeller which has been marked previously Defendant's Exhibit 147 for identification and I've turned it to the page which shows paragraph 10 and the signature of Mr. Zeller and the subscription of the deputy clerk who took his oath. Would you read paragraph 10 to yourself.
A  I've read it.
Q  Are the facts stated in that paragraph true or false?
A  They're false.
Q  I now show you the corresponding portion of another affidavit of William P. Zeller. This one is marked Defendant's Exhibit 145 for identification. This one is dated differently. I show you paragraph 10 and ask you to look at that and put the same question to you:  are the facts stated in that paragraph true or false as far as you know them?
A  Paragraph 10?
Q  Yes, sir.
A  And the question is?
Q  As far as you know the facts stated in that paragraph true or false?
A  As far as I know it's true.
Q  Now, sir, you have before you the radio code, is that correct?
A  Yes, sir.
Q  And the radio codes indicate a code 5-4 PIGS.
{2455}
A  Yes, sir.
Q  Right. Do you know what that means? Does that have any meaning to you?
A  Well, I know I have an idea of what is referred to many times in reference to law enforcement people; yes.
Q  And code 5-10 says BOMB.
A  Yes, sir.
Q  Would you say, sir, that that may indicate that those radio codes were employed by a person in the cattle business who invested in unsuccessful shows?
A  I wouldn't think so.
Q  Thank you.
MR. TAIKEFF:  No further questions.
MR. CROOKS:  We have nothing further, Your Honor.
THE COURT:  You may step down.
The Court will recess at this time until 11:05.
(Recess taken.)
MR. ELLISON:  Your Honor, so there is no misunderstanding on the record, because I understand at the current time there is, we would like to re-offer both Defendant's Exhibit 145 and Defendant's Exhibit 147.
MR. CROOKS:  Could I see those.
Your Honor, the United States will object again for the same reasons we stated repeatedly. The witness, Mr. Zeller, testified extensively about this matter. He testified {2456} concerning the discrepancy and his correction of the discrepancy and we feel that these are, have absolutely no probative value for this case. Had he denied the discrepancy, then obviously they would be entitled to introduce these for impeachment purposes, but they have no probative value whatsoever in this case. The testimony was in accord with the correct statement of fact as is reflected by the later affidavit.
MR. TAIKEFF:  Your Honor, I just want to briefly add one consideration for the Court. It is one thin for the jury to hear a witness say that a certain statement is correct, another statement is incorrect. It has a certain value to the defense to bring something like that out. But for the jury to see the entire document and the formality and care with which it is prepared and the great detail which it contains in addition to the key paragraphs is significant. It adds some weight. It adds some value to the fact that there is the discrepancy. It's the same thing as a party refusing to accept the stipulation and being permitted to do so under the law because the law recognizes that a party has a right to present to the finders of fact the entire picture including all of the relevant circumstances so that the jury cannot only have their conclusions and facts but it can have the flavor of the situation.
{2457}
This is the same kind of situation. To merely limit us to adducing the fact that there is an apparent contradiction is to deprive us of a substantial part of the value of that evidence because the jury doesn't see the nature and the quality and the content of the document in which such a contradiction is contained or such a false statement.
THE COURT:  I have not yet seen 147 so I'm going to continue to reserve my ruling.
The jury may be brought in.
MR. CROOKS:  The next witness, Your Honor, will be Steven Hancock.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)