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

JAMES EUGENE MULHOLLAND, FINGERPRINTS
AGENT WILLIAMS' 357 FOUND IN RAID AT AL RUNNING WITH LEROY CASADOS B
ONE IDENTICAL PRINT FOUND ON BAG, NO MATCH AT FIRST WITH ANYONE CHECKED C
OBJECTION TO ENTERING ORIGINAL REPORT D

MR. CROOKS:  The United States will next call Mr. James Eugene Mulholland.
THE COURT:  Is the testimony of the next witness going to be brief?
MR. CROOKS:  No. It will be rather extensive, Your Honor. Mr. Mulholland is the fingerprint expert who will be dealing with numerous exhibits.
THE COURT:  The Court will recess at this time then until 1:30 except that if there are any matters to be considered by the Court out of the presence of the jury, the Court will convene at 1:20 for that purpose. Court is in recess.
{2502}
 AFTERNOON SESSION
(Whereupon, at the hour of 1:30 o'clock, p.m., the trial of the within cause was resumed pursuant to the noon recess heretofore taken; and the following further proceedings were had, the Defendant being present in person:)
THE COURT:  The jury may be brought in.
(Whereupon, at 1:32 o'clock, p.m., the jury returned to the courtroom, and the following further proceedings were had in the presence and hearing of the jury:)
(Counsel confer.)
THE COURT:  You may proceed.
MR. CROOKS:  If it please the Court, the United State would call Mr. Eugene Mulholland.
 EUGENE MULHOLLAND, JR.
being first duly sworn, testified as follows:
 DIRECT EXAMINATION
By MR. CROOKS:
Q  Mr. Mulholland, would you give your full name again for the record, please?
A  My name is Eugene Mulholland, Jr. Mulholland is spelled -- (spelling) M-u-l-h-o-l-l-a-n-d.
Q  Mr. Mulholland, where do you live?
A  I reside in Woodbridge, Virginia.
Q  And where do you work?
{2503}
A  I am employed by the Federal Bureau of Investigation.
Q  And in what capacity are you employed by the Federal Bureau of Investigation?
A  I am a fingerprint specialist.
Q  Now, where is your official headquarters or office at?
A  Washington, D.C.
Q  And is that in the new building, I believe the J. Edgar Hoover Building, or is it another building?
A  It is the J. Edgar Hoover Building.
Q  All right. Do you have an official title other than just fingerprint examiner?
A  My official title is fingerprint specialist.
Q  All right, and what are your official duties as a fingerprint specialist?
A  As a fingerprint specialist, I examine items for the presence of latent prints. I compare latent prints with the known prints of an individual or individuals; and when asked to do so, to testify to my findings.
I conduct fingerprint schools at our academy in Quantico, Virginia, and throughout the United States for members of law enforcement agencies; and I am a member of the FBI's disaster squad which, upon request, will go to the scene of a disaster and aid in the identification of the disaster victims.
Q  All right. How long have you been in the fingerprint aspect of the Federal Bureau of Investigation?
{2504}
A  I have been employed in fingerprint work for approximately 19 and one-half years.
Q  All right. Could you explain to the jury, first of all, what is referred to by the expression "inked fingerprint"?
A  On the palmar surfaces of the hands are raised portions of skin known as fringe ridges. An inked fingerprint is an outline of these ridges made on a fingerprint card by first applying a thin film of printer's ink to the ridges and then pressing and rolling the fingers onto the fingerprint card.
Q  All right. You used the term, "latent fingerprint". Would you explain what that is and what is meant by that term?
A  The term "latent print" refers to those prints that are left on the surfaces of objects when they are touched or handled.
The friction ridges contain pores which exude perspiration, and this perspiration will coat the surfaces of the friction ridges; and when an object is touched or handled, this perspiration and other moisture is transferred to the object, leaving an outline of these friction ridges.
These prints are generally invisible to the naked eye and require some type of developing to make them visible for comparison purposes.
Q  From what you have just said, I would assume, therefore, that whether an individual touching an object would leave a fingerprint would depend to a great extent on the amount of {2505} perspiration that was on his fingerprints?
MR. LOWE:  I will object to the leading questions. This man is an expert. He can answer simple questions. He is quite fluent with the English language in explaining his expertise.
THE COURT:  Sustained.
Q  (By Mr. Crooks) Well, does it make a difference as to whether or not a fingerprint is retained as to the amount of perspiration on the hand?
A  There would certainly have to be some perspiration or other moisture on the fingers to leave a latent print, yes.
Q  All right. Now, insofar as the art or science of fingerprint examination, would you explain just very briefly how fingerprints are compared and how identifications are effected from the comparisons?
A  Fingerprints are compared by examining the corresponding areas of two impressions and determining whether the same ridge characteristics are present in both impressions.
When the same ridge characteristics are present in both impressions, then an identification has been effected.
Q  All right. What are the -- and perhaps you have already covered part of this -- what are the basic factors which you then use as a means of identification?
A  Well, there are two basic factors used. No. 1 is that the friction ridges which are present on the surfaces of the {2506} hands at the time of an individual's birth remain constant throughout the individual's entire natural life and will not change except due to severe injury or unnatural growth until decomposition sets in after death; and secondly, that no two prints of different individuals nor the different prints of the same individual have ever been found to be alike in all respects.
Q  Now, in your work as a fingerprint specialist, have you been called upon to testify as an expert in court before this occasion?
A  Yes, I have.
Q  Could you give us any rough estimate of how many times you have testified and qualified as an expert in fingerprints?
A  It would be in excess of 100 times.
Q  Now, going specifically to the facts of this case, I would hand you what has been marked, received into evidence and stipulated by counsel as being the fingerprints of Leonard Peltier, identified as Exhibit 38-A. I would ask if you have seen that before and employed it in any respect with regard to an examination which you made in this case?
A  Yes, I have seen it before.
Q  And is that a fingerprint card which you have employed in the work that you have done on this case?
A  Yes.
Q  Now, I would like to hand you several items. First of all, {2507} I will hand you Government's Exhibit 35-A which has been identified and stipulated as being the service revolver of Special Agent Jack Coler. I hand you the bag marked 38-B, in which the previous testimony has indicated 38-A was found; and Exhibit 38-E, which previous testimony has indicated was a latent fingerprint raised from 38-B.
I would ask if you have examined any or all of these items during the course of your investigation?
A  (Examining) I have examined exhibit -- Government Exhibit 38-E.
Q  All right. Now, with regard to Exhibit 38-E, have you compared the fingerprint impression found on that exhibit with the fingerprint card which you have before you, on which I believe the number is 38-A?
A  Yes, I have.
Q  And would you basically just state how you examined the exhibit, and you know, some of the things that you did or were looking for before you get into the actual comparison, if any, of the exhibits?
A  Well, I compared the latent print appearing in Government Exhibit 38-E with the inked prints appearing on Government Exhibit 38-A; and it is my opinion that the latent print appearing in Government Exhibit 38-E and the left thumb print appearing on Government Exhibit No. 38-A are impressions of one and the same finger.
{2508}
Q  All right. Insofar as your comparison of 38-E which has been previously identified as being the latent fingerprint shown and circled on 38-B, did you prepare a diagram or a schematic with which you could demonstrate the process by which you reached your conclusion?
A  Yes.
Q  And could I have that, please?
A  (Handing).
Q  I now hand you what has been marked as Exhibit 38-C, and ask if you can identify that, what is it?
A  Government Exhibit 38-C is a set of charted enlargements, illustrating the identification which I effected of the latent print appearing in Government Exhibit 38-E, and the left thumb print appearing on Government Exhibit 38-A.
Q  And are these photographic, true and correct photographic representations of the two prints you previously described?
A  Yes.
Q  And was there an exhibit which was prepared by you in your office, either by yourself or under your direction and control?
A  It was.
MR. CROOKS:  The United States will offer Exhibit 38-C for demonstrative purposes.
(Counsel examines document.)
MR. LOWE:  Subject to the record, your Honor, and for {2509} examination, we have no objection.
THE COURT:  Very well. 38-C is received.
(Plaintiff's Exhibit No. 38-C, having been previously duly marked for identification, so offered in evidence, was received.)
Q  (By Mr. Crooks) I will now show you what has been received into evidence as Exhibit 38-C, and I would ask you if you would hold this up in such a manner as the jury could see it and explain to the jury -- and your Honor, may the witness have permission to leave the bench if he needs to to more --
THE COURT:  (Interrupting) The witness may step down if necessary.
THE WITNESS:  Thank you, your Honor.
Q  (By Mr. Crooks) And would you explain to the jury what that chart shows and what you were attempting to demonstrate by its use?
A  The enlargement marked "latent fingerprint" is an enlargement of the latent fingerprint appearing in Government Exhibit 38-E. The enlargement marked "inked fingerprint" is an enlargement of the left thumbprint appearing on Government Exhibit 38-A.
The black lines represent the friction ridges which I have spoken of. The red lines, numbering and lettering, were placed on the charts by myself as an aid in demonstrating these charts to you.
{2510}
Now, the friction ridges are not all continuous ridges but contain certain ridge characteristics, such as a dot and end of a ridge, a bifurcation which is the point where a single ridge divides or branches into two ridges, or possibly an island formation which is where a single ridge divides into two ridges. These two ridges run approximately parallel for a short distance, rejoin, forming again a single ridge; and when in comparing two prints one finds the same ridge characteristics present in the same relative position in both impressions, then an identification has been effected.
Now, turning your attention to the enlargement marked "inked fingerprint", I have illustrated as Point No. 1 a ridge ending in an upward direction.
Located the third ridge to the right of Point No. 1 is a second ridge ending in a upward direction. The end of this ridge I have marked as Point No. 2.
{2511}
A  The second ridge down and to the right of point number 2 is a ridge which divides or branches into two ridges. The point where this ridge divides I have illustrated as point number 3.
From point number 3 moving one ridge to the right following this ridge down I came upon a second ridge which divides the branches into two ridges. The point where this ridge divides I have marked as point number 4.
Now, keeping these points in mind and turning your attention to the enlargement marked latent fingerprint. Now, number 1 is a ridge which ends in an upward direction. Located the third ridge to the right of number 1 is a second ridge which ends in an upward direction. The end of this ridge I have marked as point number two.
From point number two counting to the right two ridges there's a point where a single ridge comes down and divides, or branches into two ridges. The point where this ridge divides I have marked as point number three.
From point number three moving one ridge to the right following this ridge down I found a second ridge which divides or branches into two ridges. This point where this ridge divides I have indicated as point number 4.
The same four ridge characteristics in a relative position of both prints.
Going back to the inked fingerprint from point number 4 {2512} counting to the left to the second ridge there is a ridge which ends in an upward direction. The end of this ridge I have indicated as point number 5.
From point number 5 moving one ridge to the left following this ridge down I found that it ended in a downward direction. The end of this ridge I have marked as point number 6.
Keeping these two points in mind and going back to the latent print from point number 4 moving two ridges to the left is a ridge which ends in an upward direction. The end of that ridge I've indicated as point number 5.
From point number 5 moving one ridge to the left following ridge down I found that it ended in a downward direction. The end of this ridge I've marked as point number 6.
Here again the same ridge characteristics present in the same relative position in both prints. And it is upon these characteristics which I have just explained to you and other characteristics which I found to be the same in both prints, some of which I have marked, others of which I have not marked.
It is my opinion that the latent print appearing in Government's Exhibit 38-E is identical with the left thumb print appearing on Government Exhibit 38-A.
Q  Thank you.
With regard to the exhibit which you've previously given your opinion about, which you previously have given your {2513} opinion, 38-E which has been identified as having come from 38-B, the paper sack in which Special Agent Coler's service revolver was found, and having compared that to 38-A, I would ask you whether or not you have an opinion as to whether or not any other human being in the world, other than the person who made these fingerprints on 38-A, could have formed that fingerprint?
MR. LOWE:  Your Honor, I would object to the form of the question. Counsel is invading the province of the jury. There is absolutely no reason why he cannot ask whether there's a comparison between 38-E and the left thumb print of 38-A. But all of the preamble about where 38-E came from is a question for the jury to determine based on testimony other than this witness.
And I object to the form of the question and ask that it be narrowed and restated.
THE COURT:  Overruled. The witness is an expert and will be permitted to give his opinion.
MR. LOWE:  Excuse me, Your Honor.
THE COURT:  State whether he has an opinion.
MR. LOWE:  May I just be heard so Your Honor understands what I'm stating, this witness has no factual basis for stating this. He has no factual basis for stating of his own personal knowledge whether 38-E, the photograph, is a print from 38, from the gun or from the paper bag. As I understand it at {2514} this point he has not testified that he personally made that 38-E and that's my objection.
THE COURT:  On that basis I will sustain the objection and you may restate your question.
MR. CROOKS:  I had assumed that I had not asked this individual or this man whether he knew. But I asked him -- there has been previous testimony that 38-E came from 38-B, which is the paper bag in which 38-E was found. And my question simply is is there anyone else in the, any other human being in the world other than the individual who made out 38-A, the fingerprint card, who could have made that print 38-E.
MR. LOWE:  Now, Your Honor --
Q  (By Mr. Crooks) Do you have an opinion on that?
MR. LOWE:  I interpose an objection to counsel telling the witness what a previous witness has testified to. I don't understand the way he just stated it that it is part of the question to the witness. But I think it's not clear on the record and that is what I objected to before and I ask the Court to ask that he simply ask this witness proper questions.
THE COURT:  Sustained.
Q  (By Mr. Crooks) Mr. Mulholland, in connection with your identification did you make also other comparisons during the course of your fingerprint examination?
{2515}
A  Yes, I did.
Q  I first hand you Exhibit No. 38-F. Is that something you've seen before?
A  Yes, it is.
Q  And insofar as 38-F the previous testimony has indicated that as a --
MR. LOWE:  Your Honor, I object to him telling the witness or the jury what previous testimony has or has not said about it. That's exactly what I find objectionable and I object.
MR. CROOKS:  Well, Your Honor, I believe that the jury has a right for me to state simply what print that is so that they can follow the testimony. I think they're entitled to that.
MR. LOWE:  It's a question for the jury as to what print that is. Not for counsel to state.
THE COURT:  I think that the objection may be removed if you simply put it in the form of an assumption.
MR. CROOKS:  I'll do it that way.
Q  (By Mr. Crooks) Assuming that this was a print which was taken and identified by a previous witness has having come from a microphone and one that you have previously identified, have you formed an opinion as to the comparability or incomparability of that between any fingerprint impressions contained on 38-A?
MR. LOWE:  I would object to the form of the question {2516} again, Your Honor. There is no necessity for that assumption.
That assumption has no relevancy as to whether this witness can compare the print on 38-F with the known print on the print card and tell whether they're identical. And therefore it is incompetent for him to testify as to that portion of the question.
I have no objection to him asking for a comparison of 38-F and 38-A.
MR. CROOKS:  Well, Your Honor, again I state it seems to me only fair to the jury that they be informed of what print this is. I'm certainly not misstating the record, am I, Counsel?
MR. LOWE:  If you -- Your Honor, this is stating what the fingerprint is. That is in the province of the jury. If as a matter of explanation counsel or the Court wants to re-identify Exhibit 38-F as being a print which a certain witness testified about and identified in a certain way, that's one thing.
That's not saying that the fact is true. That's only saying that the Government witness testified about it and that would be less objectionable. But I still say that that's not a necessary element of the question for this witness, and it neither helps him nor in any way is a basis for his answer.
THE COURT:  Reporter will read back the last question {2517} which Mr. Crooks asked.
(Question read back:  "Question:  Assuming that this was a print which was taken and identified by a previous witness as having come from a microphone and one that you have previously identified, have you formed an opinion as to the comparability or incomparability of that between any fingerprint impressions contained on 38-A?")
MR. LOWE:  I have no objection to that statement being made to the jury by way of explanation. But I object to it being a part of the question to this witness because it's not necessary for him to make a comparison.
THE COURT:  Overruled.
THE WITNESS:  Would you repeat the question, please.
Q  (By Mr. Crooks) Why don't I just restate the question leaving out the part that counsel doesn't like.
MR. LOWE:  Thank you.
Q  (By Mr. Crooks) With regard to 38-F which I assume everybody now knows where it came from, with regard --
MR. LOWE:  Objection, Your Honor, that is the most objectionable thing he's said today. Now, that's a direct invasion of the jury province. It's outrageous conduct for counsel. He didn't even say that that's what a witness said. He said that that was an established fact, and that is not. And that's for the jury to decide.
THE COURT:  I think the jury understands what the {2518} meaning of the statement was. They've heard the evidence.
Q  (By Mr. Crooks) With regard to 38-F have you made a comparison between that and any of the prints contained on 38-A, and if so, well, first have you made a comparison?
A  Yes, I have.
Q  And would you state if you formed an opinion with regard to that comparison?
A  Yes, I have.
Q  And what is your opinion?
A  It is my opinion that the latent print appearing in Exhibit 38-F is identical with the right middle finger appearing on Government Exhibit 38-A.
Q  Now, with regard to Exhibit 40-A and 40-D have you likewise made a comparison between the negative contained on 40-D and 40-A to determine if there is any comparability?
A  I have compared the latent print on Exhibit 40-D with the ink prints appearing on 38-A.
Q  And what is your opinion following that comparison?
A  It is my opinion that the latent print appearing in Exhibit 40-D is identical with the left thumb print appearing on Exhibit 38-A.
Q  Now, I hand you what has been marked as Government Exhibit No. 63-A which, well, I'll ask you to assume that this was testified to by a prior witness as having come from a Ford Ranchero; and ask if you made a comparison between 63-A and {2519} 38-A?
A  Yes, I have.
Q  And what is your opinion after that comparison?
A  The latent print appearing in Exhibit 63-A is identical with the left thumb print appearing on Exhibit 38-A.
Q  All right. I now hand you Exhibit 63-B which I'll ask you to assume has been previously identified by a witness has having come from a refrigerator on the Barker residence. Ask if you compare the negative contained in 63-B with 38-A and state whether or not you found them in any way comparable?
A  Yes, I have.
Q  And what opinion have you reached?
A  The latent print appearing in Exhibit 63-B is identical with the right ring finger appearing on Exhibit 38-A.
Q  All right. Now, I'd ask you some other questions concerning your actual, so to speak, on the scene investigation.
Now, did you at any time travel to the Oregon area in connection with your work?
A  Yes.
Q  And when was that?
A  That was in November of 1975.
Q  And what was the purpose of your trip to Oregon?
A  To examine items that were reported to me as having been recovered from a motor home and a station wagon.
Q  And did you in fact make a, or an examination of various {2520} items at the scene?
A  Yes.
Q  I would first hand you Exhibit 38-G which is an Outers gun oil can. Ask if this is an object that you have scene before?
A  Yes, it is.
Q  And where did you see it and under what circumstances?
A  I saw it while I was in Portland, Oregon performing my examination of the items recovered from a Dodge motor home and a Plymouth station wagon.
Q  All right. Did you attempt to ascertain whether or not there was any latent fingerprints contained on the gun oil can?
A  Yes.
Q  And were you successful in raising or finding a latent fingerprint?
A  Yes.
Q  And insofar as your observation of the particular print which was produced were you able to make a comparison between that print and the prints contained on 38-A?
A  Yes.
Q  The fingerprint card?
A  Yes, I was.
Q  And did you form an opinion based upon your observations as to whether or not those fingerprints were in any where {2521} comparable to those contained on the gun oil can?
A  Yes, I have.
Q  And what is the opinion?
A  It is my opinion that the latent print on Exhibit 38-G is identical with the left middle finger on Exhibit 38-A.
Q  And I might ask you with regard to that print, do you have a negative which would be available if counsel wishes to see it?
A  Yes.
Q  All right. I now hand you what has been marked as Exhibit 38-I, marked and received as 38-I. Ask if that is an Exhibit that you've seen before?
A  Yes, it is.
Q  And where did you see that?
A  Where did I see it?
Q  Yes.
A  At Portland, Oregon.
Q  And did you attempt to ascertain whether or not any latent fingerprints could be found on any of the objects contained in 38-I?
A  Yes.
Q  And were you successful?
A  Yes.
Q  Would you point out to the jury which part of that exhibit you found a print of value on?
{2522}
A  The latent print that I found on Exhibit 38-I is at the base of what appears to be a 3 by 5 piece of paper with a number code from 516 through 530.
Q  All right. Insofar as that print was concerned how did you go about raising that print?
A  It was developed with, by a chemical solution known as nynhydrin.
Q  And after having developed the print and after having observed it did you compare it with the prints contained on Exhibit 38-A?
A  Yes, I did.
Q  And did you form an opinion as to whether or not they were in any way comparable?
A  Yes, I did.
Q  And what is that opinion?
A  It is my opinion that the latent print developed on a piece of paper within Government Exhibit 38-I is identical with the right middle finger appearing on Government Exhibit 38-A.
{2523}
Q  Now I hand you Exhibit 40B which is a copy of a motor receipt and ask if that's something you've seen before?
A  Yes, I have.
Q  And where did you see that?
A  In Portland, Oregon.
Q  Did you likewise examine that for latent fingerprints?
A  Yes, I did.
Q  Were you successful in raising any latent fingerprints from that exhibit?
A  Yes, I was.
Q  And was this again using a ninhydrin test?
A  Yes, it was.
Q  Now insofar as the fingerprints you raised on Exhibit 40B, did you make a comparison between that and 38A for the fingerprints contained thereon?
A  Yes.
Q  And what opinion, if any, did you form following your examination and comparison?
A  It is my opinion that two of the latent fingerprints which was developed, which were developed on Exhibit 40B are both identical with the right thumbprint appearing on Government Exhibit 38A.
Q  Now I didn't ask you with regard to the last Exhibit 38I but I will ask you with regard to 38I. Excuse me. 40B together. Did you have available photographic negatives of {2524} the print if Counsel wish to examine them?
A  Yes.
Q  With regard to the prints that you last identified consisting of the prints on 38F, 38G, 38I, 40D, 40B, 36A and 63B, insofar as those prints are concerned, could they be set out in charts and demonstrated in a manner similar to what you have done with regard to 38C?
A  Yes.
MR. LOWE:  Your Honor, may we confer with Counsel for just a moment, please?
THE COURT:  You may.
Q  (By Mr. Crooks) One other exhibit which I'd like to have you express an opinion on, if you can, and I've asked you not to in any way refer to the contents of this exhibit because it is not in evidence, I hand you 38H and ask you whether not this is something you have seen before?
A  Yes, it is.
Q  And is that something that you developed during your trip to Oregon?
A  Yes.
Q  And did you find a latent print on 38H?
A  Yes.
Q  And insofar as Exhibit 38H was concerned, did you form an opinion or did you make a comparison between that and 38A?
A  Yes, I did.
{2525}
Q  And did you form an opinion as to the comparability of the prints?
A  Yes, I did.
Q  And what was that opinion?
A  It was my opinion that one latent fingerprint developed on Exhibit 38H is identical with the left finger appearing on Government Exhibit 38A.
Q  Insofar as the same list that I read to you earlier and which you have, all of which you have before you and including 38E, do you have an opinion as to whether or not all of those prints were made by the same individual?
MR. LOWE:  Excuse me, Your Honor. I didn't hear the letter designation.
MR. CROOKS:  I was referring, adding to the list that I previously read 38E.
MR. LOWE:  E?
MR. CROOKS:  Right.
Q  (by Mr. Crooks) Do you have an opinion as to whether or not all of those prints, and I'm taking all of them together, were made by one and the same individual?
A  Yes.
Q  And what is that opinion?
A  They were made by one and the same individual.
Q  And you are referring, are you not, or are you referring to the individual whose prints are found on 38A?
{2526}
A  Yes, I am.
MR. CROOKS:  Counsel, apparently I have misspoke as to the exhibit number.
Q  (By Mr. Crooks) The exhibit which I previously handed you which was not in evidence, that is 38H, is that correct?
A  Yes.
Q  And I don't know what I said but Counsel tells me that I said something else. But that would have been the exhibit you were talking about?
A  Yes.
MR. LOWE:  Your Honor, this is hopelessly confusing. He's talked about ten different exhibits. When he said he previously talked about, I think Counsel should ask the question and make sure --
MR. HULTMAN:  John --
MR. CROOKS:  I'm showing you which one, E, it was not in evidence. There is only one exhibit which was not in evidence.
I believe that completes the direct examination, Your Honor.
THE COURT:  You may cross-examine.
 CROSS-EXAMINATION
BY MR. LOWE:
Q  Mr. Mulholland, you have filed certain reports, laboratory reports summarizing or describing the results of some of the examinations that you made in conjunction with this investigation, {2527} didn't you?
A  I have sent out reports; yes.
Q  Do you have copies of your reports with you?
A  No, I do not.
Q  Did you review them prior to testifying today?
A  No, I did not.
Q  When was the last time you have reviewed any of your reports to be made in this investigation that you have made?
A  I don't know that I have ever reviewed them other than reading them before I sent them out.
Q  Do you have any documents with you today which you have been using to assist you while testifying?
A  Yes, I do.
Q  And will you state what the nature of those documents is?
A  I have a piece of paper which I have used which refers to the items to which I have testified setting forth the particular finger with each latent I had identified.
Q  And when did you, or strike that. Did you make the notation on these pieces of paper you have been looking at?
A  Yes.
THE COURT:  Just a moment.
Q  (By Mr. Lowe) When did you make those, recently or back when you made the examination or just when?
A  It was within the last several days. The exact day I {2528} do not remember.
Q  Now if you didn't look at your laboratory reports recently, what did you use in order to prepare these pieces of paper?
A  My work sheet.
Q  You differentiate then between your laboratory reports and your work sheets?
A  Yes.
Q  And are these work sheets on any particular forms or are they just on pieces of paper like a legal pad or something of that nature or in a workbook?
A  The front page of a work sheet is more or less a form type of document. The remaining pages are notes written on bond paper, plain bond paper.
Q  Would I be correct in assuming that you take notes as you do your work on the bond paper and then at the end of a day or some period when you're dealing with particular objects you assemble them and make a cover sheet and put them together in some fashion?
A  Would you repeat that, please.
Q  I'm trying to determine the technique you use when you're assembling this data and I asked whether I would be correct in assuming that the bond paper is something that you make up or have typed up for you as you go along and then at a certain point you assemble various pieces with a cover sheet?
A  The cover sheet is made up first and may be the only sheet {2529} which I use. However, in this particular case because of the complexity of the case, the number of latents that were developed, it was necessary for me to add to this cover sheet notes on plain bond paper.
Q  Does the cover sheet have a particular form number, that is, is it a printed form?
A  If it does I'm not aware of it.
Q  As to whether it was a number or not?
A  Yes.
Q  It's a printed form as opposed to something that is made up by a typist?
A  Some of it is preprinted and the remainder is typed along with some written notes.
Q  Do you have any of those papers with you, those so-called working papers?
A  Yes, I do.
Q  Have you referred to them today at any time or do you strictly refer to your notes that you extracted?
A  I do not recall if I referred to those today or not.
Q  And when you say within the last couple of days, you have read your, I believe you said you read your work papers. Was that here or back at your office in Washington or Virginia, whichever it is?
A  That was here.
Q  Would it be fair for me to suggest that you do a lot of {2530} different fingerprint analyses and that it would be virtually impossible for someone in your position to keep straight all the various prints and who they are connected with and what investigation and what exhibit number and everything without referring to some sort of reports or work papers or notes?
A  That is the purpose for keeping the notes so that you can keep them straight.
Q  My question, would it be fair for me to assume you could not remember that information generally without the assistance of some written report?
A  That's a fair assumption; yes.
Q  Now you've identified these work papers. Are the documents captioned work papers or some sort of a caption or title on it on the sheet you described?
A  I'm not certain if it's captioned. I believe it is captioned work sheet. I'd have to look at it to be certain.
Q  Do you have some with you at your seat or are they in the building?
A  They're here.
Q  Why don't you take a look and see.
Have you examined them and can you tell us now whether they're captioned work papers or something like that?
A  It is captioned, "Latent Fingerprint Section Work Sheet."
Q  We have now talked about two different types of papers, one a report and one a latent print identification section {2531} work sheet. Are there any other types of documents which you have prepared other than the notes you described with regard to these prints and your examination of them? For example, do you prepare 302 forms?
A  No.
Q  Do you prepare any memorandum or interoffice communications with regard to examinations other than the papers you've already described?
A  Yes.
Q  Have you any of those with you and have you reviewed them in the last several days?
A  I do not have any of those with me. I have not reviewed any of those in the last several days.
Q  When you do examinations of these types and submit reports, does a special agent who is working on the investigation as a general rule investigate or interview you and prepare a 302 of any of this or is your laboratory report the sole source of giving the information that you obtain to the agents in the field?
A  I do not; no. I am not interviewed as such. Whether an agent prepares the 302 on my conversation with him, I don't know.
Q  You've described the work sheets which apparently you have with you. Let me ask first, do you have all of the work sheets which you prepared in conjunction with the examination of the {2532} items you were sent in this investigation, to the best of your knowledge?
A  To the best of my knowledge, yes, I do.
Q  Does that include work sheets which you may have used or made up about items not actually exhibits in this case so far as well as items which are already exhibits that you have been discussing today?
A  Yes.
Q  And how is it that you came to make extracts or notes, what was the process by which you decided what information to put down on notes?
A  I had a conference with the Assistant United States Attorney at which time he advised me which items he had intended to show me because, as I stated before, the case is so complex and involved and there are a number of pages of work sheets involved and in order to help me in my testimony I made notes of those items which he claims he showed me along with the notations of the results of my comparisons.
MR. LOWE:  Could I have a moment, Your Honor?
THE COURT:  You may.
MR. LOWE:  Your Honor, I would request the opportunity for Counsel to view the work sheets and notes which the witness has used to prepare for testimony today and I have a suggestion which might utilize the Court's time efficiently and that would be, I think the jury might be interested and {2533} we would be interested in having them have a chance to look closely at the comparison chart which has been introduced. I think it was 40A perhaps. Whatever the exhibit is, and perhaps while the jury is looking at that, we could be reviewing the notes and documents and taking the matter up with the Court at side bar, any questions about that.
MR. CROOKS:  Your Honor, may we approach the bench on this?
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. CROOKS:  Your Honor, in the first place, I hope Counsel is not trying to infer that the United States Attorney's Office is keeping something from them. I don't know why he felt it necessary to make this request in front of the jury.
And, second thing is, Counsel has received every lab report that this man has written and insofar as the notes are concerned, really is immaterial to me whether he looks at them or not. If he wishes to look at the small card, I think he's entitled to do that, but I do not think in delaying this trial so Counsel could go on some kind of a fishing expedition into this man's notes. If he wished to look at any of these notes, he could have requested them.
It's quite obvious to anybody this man takes notes, {2534} he's an expert. Counsel has had the lab reports which show the results of the examinations for a considerable period of time and I see nothing to be gained by delaying this trial so that Counsel can breeze through a large stack of documents. I think this is not timely.
MR. LOWE:  Your Honor, we were delivered two stacks of reports and I believe I'm correct in saying those were the sum total of the 3500 materials we were provided.
Until I had an opportunity to cross-examine this witness, I was unaware of the existence of work papers, much less notes.
MR. CROOKS:  Oh.
MR. LOWE:  Mr. Crooks, will you make an offer of proof at this moment to the effect I knew about the work papers or the notes, because I think it's insulting for you to make a comment like you to the Court implying I'm not stating the truth.
MR. SIKMA:  Keep your voice down, John.
MR. LOWE:  I ask you to make an offer of proof.
MR. CROOKS:  Your Honor, if Counsel is not aware that this man has notes of this type, then this has got to be the first time they ever examined a fingerprint expert because that's common knowledge. I'm very shocked to learn that Mr. Lowe has never understood that this man takes notes in preparation of his work report. That would be astounding to {2535} me.
MR. LOWE:  Your Honor, I certainly think there is a possibility he has notes. They are not discoverable. If he uses them to refresh his memory under Rule 612, they are discoverable, they become discoverable at that point. As to work sheets, work papers, I never would have known that. As a matter of fact, the practice among the FBI agents in this case on the 302s has been that the 302s they used to review to testify from. I frankly felt he reviewed the lab reports. That's why I asked him that question. We're entitled under Rule 612 to view any documents a witness uses while testifying and in preparation to testify and I'm suggesting that there would be no time lost, it usually takes a good 15 or 20 minutes, 10 or 15 minutes for a jury to look at something. I think at some point they want to see those comparison pictures. We're not going to lose any time. This witness has his papers with him right at the witness stand. It's not even a question of them being in his motel or in an office in the building. We're entitled to see those. We're not trying to delay this trial.
THE COURT:  Do you intend, was it your intention to pass that exhibit around?
MR. CROOKS:  Not particularly.
It was shown to the jury and I think they have seen about all they need to see of it. I really have no quarrel {2536} Your Honor, with what Counsel is proposing other than it's a complete waste of time.
Counsel knows as well as anyone else, he's had those lab reports, he knows what the results are. We're in here fishing for straw men again and it's a complete waste of time.
THE COURT:  Well, I think that he is entitled to look at the notes so I'm going to resolve this without wasting the Court's time by taking an early recess.
MR. HULTMAN:  Your Honor, could I make a statement on the record now, a different request, Your Honor. This trial has been repleat with disclosure. In fact, only let the record speak for itself as to what Mr. Taikeff has previously said on one occasion. The government at this time wants to put it in the record a general objection that the things we're now undergoing and we'll object in the future to constant discovery at this late date on things that are clearly within the purview of the reports and the leading of the reports that they have had in their possession for weeks and months. The government has bent over backwards at any time to meet any request.
If this Counsel has any query about the specific notes we're talking about, he has had ample opportunity for weeks. This is a general objection that I want to make at this time and for any future matters of this kind. I just {2537} wanted it in the record.
MR. LOWE:  I'll make one response to that. I would like to enter a general objection to Mr. Hultman not knowing the Federal Rules of Evidence. Rule 612 says I'm clearly entitled to it.
THE COURT:  The Court's going to take an early recess this afternoon.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
THE COURT:  We'll recess at this time and reconvene at 3:00 o'clock.
{2538}
(Whereupon, after recess, the following further proceedings were had, the Defendant being present in person:)
THE COURT:  Are counsel ready for the jury?
MR. LOWE:  Yes, your Honor.
THE COURT:  Is the Government ready?
MR. CROOKS:  We are, your Honor.
THE COURT:  The jury may be brought in.
(Whereupon, at 3:02 o'clock, p.m., the jury returned to the courtroom; and the following further proceedings were had in the presence and hearing of the jury:)
THE COURT:  You may proceed.
MR. LOWE:  Thank you.
Q  (By Mr. Lowe) At the point where we took a recess, Mr. Mulholland, I believe we had just discussed the fact that you had some notes and you had some worksheets and you had described the caption on the worksheets that indicated that that was what they were.
Let me ask you this:  When you prepare reports to be sent to whomever you might be making analyses for, such as Special Agent in Charge, Portland, Oregon, wherever it might be, what is the use to which you put the worksheets when you prepare the reports, that is, do you simply prepare them by extracting the information and putting it into a report from the worksheets?
A  Information that is put into the report is taken from the {2539} worksheet, yes.
Q  All right, and would you look at the worksheet that you had in relation to the items you testified to, about -- a little earlier today, and would you just state, first of all, if there is a date on the covering page of the worksheet; and if so, would you state what it is?
A  There are several dates. Which one are you referring to?
Q  Well, I don't know. I don't have a copy in front of me, as I think you probably know.
Is there a date on there of the preparation of the worksheet or of completion of whatever it is that is attached to the worksheet?
A  There is a date upon which the typist typed the front portion of this worksheet, there is a date which shows the date that the negatives were received into our section. There is also a date indicating the time I spent processing items in the Portland Division. There are dates indicating the time that I completed this portion of my examination, and also the date that I dictated it, the date of my outgoing report.
Q  All right. Would you give me the last three dates, that is, the date you completed your work, the date you dictated it and the date of your outgoing report, please?
A  The date that I dictated it was January the 7th, 1976. The date that I completed it and dictated it was both January 7th, 1976. My outgoing report was dated January the 8th, 1976.
{2540}
Q  All right. I show you what has been marked for identification as Defendant's Exhibit 156, and ask you if you are familiar with that document; and if so, will you tell the jury what it is?
A  (Examining) This appears to be a copy of my report of January the 8th, 1976, with a few -- it appears as though someone has written handwritten notations on portions of it.
Q  I am sorry. I didn't hear the last part.
A  It appears as though someone has placed handwritten notations on a number of the pages which does not appear in my report.
Q  All right. As to the typed material, is it essentially what you recognize to be a copy of your report?
A  To the best of my recollection, yes.
Q  Now, in examining specimens, first of all, on the first page of the report, there are four categories, I should say, of what are identified as specimens and one of them is 37 negatives, and I presume that those are negatives such as you have described this morning, I think 38-E was one of them, Exhibit 38-E; and am I correct in assuming that those 37 negatives which are referred to there were negatives of latents which were furnished to you by the Oregon State Police?
A  The negatives were not furnished directly to me by the Oregon State Police. They were furnished to our Portland Division by the Oregon State Police.
{2541}
Q  I didn't mean to infer that you necessarily got them directly from the police, but I think it says right on here "furnished by Oregon State Police", and through whatever FBI channels that came, you ultimately got them and the Oregon State Police originally sent them?
A  The information that I had Was they did come from the Oregon State Police.
Q  I don't think that's in dispute.
The next thing says:  Items from mobile home. I gather that includes some of the things you testified to there also, gun oil can and other things, is that correct?
A  Yes. Just a moment please. (Examining) Yes. The gun oil did come from the Dodge motorhome, according to my information.
Q  And the next thing says:  Items from Plymouth stationwagon; and I gather that that also includes one or more of the items you testified about a little earlier here today, I think there were some pieces of paper and maybe some other items?
A  According to my information there were two items which I testified that came from the Plymouth stationwagon.
Q  O.k. The next thing says:  Major case prints of Kenneth Moses Loudhawk, Russell James Redner, Darlene Pearl Nichols and Anna Mae Aquash. Were those cards of some sort that had the known prints on them?
A  Yes.
{2542}
Q  Did you compare these major case prints, cards that you were given with all of the items that are listed in the first three categories as part of your examination of these items?
A  I did not compare them with all of the items. I compared them with the latent prints that were developed on a number of the items, were present in a number of the items.
Q  You are being correct and much more precise than I am. I thought you would understand that I meant that.
You developed certain latent prints on some of the items, and as to other items you examined the negatives which had been developed or which were sent to you through the FBI channels.
Did you compare those with these known case prints that you have described a moment ago or identified?
A  Yes.
Q  And in this report how many -- you may look at the report if you want to answer this -- how many latent fingerprints, latent palm prints and latent impressions of value did you find present in the negatives which the Oregon State Police furnished, or did you develop on the items in the Dodge motorhome and the Plymouth stationwagon in total?
A  At the time of this report I had found 231 latent fingerprints, 26 latent palm prints and four latent impressions which may be either fingerprints or palm prints of value for identification purposes.
Q  And when you say "four latent impressions" is that a {2543} category which are not clearly fingerprints or palm prints but have identifiable ridges of some sort?
A  As I just stated, the latent impressions at this point may be either fingerprints or palm prints.
Q  Now, there are -- also in the first page of your report is an indication that you have the results in this report of 159 of the comparisons you have conducted, and this is a report that appears -- I don't want to count the pages, but there are multiple pages, look like maybe 10 pages or so -- is the figure 159 in there, a list of comparisons which you made and identified yourself out of the 231 plus 26 plus 4 impressions of value?
A  The 159 represents the numbers of identifications that I had effected to this point of those latent prints reported.
Q  As of January 8, 1976?
A  Yes.
Q  And then there is a list that says:  Remaining latent prints, compared available prints; and then there is a list of people down there, and I gather that those were other lists of major case prints or of fingerprint cards which you had available to you to use for comparison purposes?
A  Yes.
Q  Now, this may have been clear from your direct examination but we had some confusion at one point, and I would like to be sure the record is straight.
{2544}
As to Coler's .357 magnum, which I believe is Exhibit 35-A, you did not personally develop any latent impressions on that gun yourself, did you?
A  No.
{2545}
Q  And in fact as far as you are aware did anybody ever develop any impressions on the .357 magnum that were of value? That is, Coler's weapon, 35-A?
A  Not to my knowledge.
Q  All right. and as to a brown paper bag which is identified as Government's Exhibit 38-B, I understand your testimony to be that you did not personally develop any latent impressions on that paper bag, but identified, well, first of all let me stop there. Is that much correct, that you did not personally develop any latents on that paper bag?
A  That is correct.
Q  I understand that you had a negative about which you were told something not within your personal knowledge, and that you made a comparison of a negative, and I believe the negative is 38-E and compared that with the left thumb print of exhibit 38-A and found, I believe you testified, that they were identical; is that correct?
A  The latent fingerprint appearing in Government Exhibit 38-E is identical with the left thumb print appearing on Government exhibit 38-A.
Q  All right. Now, am I correct in saying that you have no personal knowledge as to where the print was found which is depicted by the negative which is identified as Government exhibit 38-E, but rely entirely for your beliefs upon what other people told you?
{2546}
A  Are you referring to Government Exhibit 38-B?
Q  38-E is the negative I believe, is it not?
A  Yes.
It is a negative.
Q  Do you understand my question or do you want me to state it again?
A  Would you repeat your question.
Q  Am I correct in understanding your status with regard to Government Exhibit 38-E, the negative that you have no personal knowledge as to the source of the latent impression which is depicted in 38-E, but rely entirely on what other people have told you for any belief you may have as to where it was found?
A  No.
Q  I am not correct about that?
A  You are not correct.
Q  As to Government Exhibit 38-E you were not present when that was made, were you?
A  No.
Q  And as to Government Exhibit 38-E you have no idea what was photographed of your own personal knowledge in order to prepare that document, but are relying on what was reported to you; isn't that true?
A  No, that's not true.
Q  You were not present when a photograph was made, were you?
A  No.
{2547}
Q  You were not present when the photographic negative was developed?
A  No.
MR. LOWE:  Can I just have a moment?
(Defense counsel conferred.)
Q  (By Mr. Lowe) Now, I want to ask you a couple of questions about what you can actually tell from a fingerprint other than simply comparing it to another one, and some of this may be, I'm sure is very basic for you, some of it, since I'm not a fingerprint expert, I'm not sure how basic it is for you, but it's basic, certainly something I want to get across here.
And let me ask you first, is there any way that you can tell, first of all, let's take from a negative such as Exhibit 38-E when as to date that impression was put on the object from which it was lifted by the individual who, well, however it got on that object?
A  There is no technical method of determining the age of a latent print.
Q  All right. There would be some practical ways, however, for example in your report on one of the pages that happens to be on Anna Mae Aquash there is three fingerprints on an October 13, 1975 issue of People magazine; and as a practical matter that fingerprint would have to have been placed on there after the issue was printed, presumably October 13, 1975. So that's a practical way that you might be able to make some {2548} indication of when it was applied, isn't it?
A  That's correct.
Q  But as to an item that is found on, let's say, an unmarked piece of paper, isn't it true that a print might, if it's in a safe, dry, relatively secure environment, might last on a piece of paper for virtually years and still be identifiable as a latent impression?
A  Latent prints have been developed on paper after a period of years, yes.
Q  And certainly it would have been no surprise to you to find a latent impression which had been put in a particular place, let's say, particularly on paper a period of months before?
A  I have done it, yes.
Q  Well, would that shock you if you came to find that an impression that you had lifted had been put on a book or a piece of paper four months earlier? Would that be so unusual?
A  That wouldn't shock me, no.
Q  Okay. Now, in doing your examination, at various times you made all of your notes in your work papers there I believe. could that be fair to say that you keep fairly complete notes in your working papers?
A  I like to think that I do.
Q  Okay. And in the working papers which you have identified as having been completed and dictated on January 7, 1976, do {2549} you have notes in there about finding latent impressions of some sort for Robert Eugene Robideau?
A  I have a notation there, yes.
Q  I don't recall, are they fingerprints or palm prints? Could you check and see.
(Witness checking his notes.)
A  They were both palm prints.
Q  And these were found on, could you tell us what items they were found on, or just generally were they found in the Dodge motor home?
A  Road atlas.
Q  Which vehicle was that from, if it was from a vehicle?
A  That was indicated to me as having coming from the Dodge motor home.
Q  Thank you.
Now, in another part of your report you have some prints found relating to Kenneth Moses Loud Hawk and I note that one of them is a fingerprint in a negative number 19 relating to a .357 revolver found near mobile home. And I would ask you whether that is one of the 37 negatives that was provided you by the Oregon State Police, or the way you were informed it was provided you?
A  Would you repeat the negative number, please.
Q  Yes. 19.
A  Yes. I identified a fingerprint appearing in a negative {2550} number 19, which was indicated to me to be on a .357 revolver found near a mobile home with a fingerprint of Kenneth Moses Loud Hawk.
Q  All right. And also on the second page of the report relating to Kenneth Moses Loud Hawk there's an indication that two fingerprints on a brown paper bag designated "A", and did you also identify that?
A  Yes.
Q  Now, is it uncommon in your experience to find fingerprints on paper bags in living areas, whether it's in a mobile home or a house or an apartment, when you have occasion to search the living area for prints for some reason or another?
A  I don't usually search a living area for prints.
Q  All right. Well, let me rephrase my question.
When you are given items which have been found in a living area, mobile home or a house or an apartment, is it unusual for, let's say, brown paper bags used for groceries or whatever it might be, is it unusual to find fingerprints on paper bags when they are provided you?
A  I have developed latent prints on brown paper bags. Whether they were used for groceries, I don't know.
Mostly brown paper bags that I examine were usually bags involved in bank robberies.
Q  I understand it's more likely that they want to know who robbed the bank than who bought the groceries. I didn't mean {2551} to suggest that that was a great moment.
MR. LOWE:  May I approach the witness, Your Honor?
THE COURT:  You may.
(Mr. Lowe approached the witness.)
Q  (By Mr. Lowe) Now, Exhibit 38-B is a brown paper bag, and I believe you testified as to Exhibit 38-E, which purports to be a photograph of a latent developed on this brown paper bag, and I ask you whether there's any way that you tested this bag for, to determine anything about when the print was put on there in terms of the date or time either relative to some act or an absolute date?
A  As I previously testified there is no technical examination which can be conducted to determine the age of a latent print.
Q  All right. Now, that paper bag was purportedly found containing Exhibits 35-A, or with 35-A inside of it, and this may state the obvious, but there's no way that you can tell the jury anything about whether Exhibit 35-A was in that paper bag, or when it was placed there, simply because of the fact that you observe a print on the bag, is there?
A  No. I have no personal knowledge.
Q  And as to referring back to your report of January 8, 1976, you have the results of 159 comparisons out of the total that believe is 261. 159 of them are contained in the report in some analysis, and then you say that the remaining latent prints compared to available prints of Loud Hawk, Redner, Nichols, {2552} Aquash, Dennis James Banks, Leonard Peltier, Leroy Kosata and Mark Libby Banks, but no identification effected. And did you also make the identification attempts which resulted in that finding?
A  Yes.
MR. LOWE:  May I just confer with counsel for a moment?
THE COURT:  You may.
(Mr. Lowe conferred with Government counsel.)
{2553}
MR. LOWE:  I believe that's all I have, Your Honor.
 REDIRECT EXAMINATION
BY MR. CROOKS:
Q  Mr. Mulholland, Counsel had asked you several questions concerning your knowledge of a tie up between Exhibit 38E and Exhibit 38D which is the paper sack which is previously been identified and you said that you were relying on something more than just what someone else had told you and I'd ask you what if anything are you relying upon?
A  The latent print which appears in Government exhibit 38E is still present on the paper bag marked Government exhibit 38D.
Q  It's covered with tape so as to protect it, is it not?
A  Right here (indicating).
Q  I now hand you a small eyeglass. Would you examine the two and then I have a small series of questions.
MR. LOWE:  May I voir dire the witness before he looks at that, Your honor, looks into the eyeglass?
May I ask the witness to look this way for a moment until the Court rules on the question. I'd like to ask a question of voir dire.
THE COURT:  For the purpose of an objection?
MR. LOWE:  For the purpose of an objection.
THE COURT:  You may.
MR. LOWE:  Prior to this point, have you looked through some sort of a magnifying glass or whatever way you use within your own techniques for the purpose of comparing {2554} exhibit 38E with 38D and to see if the negative was in fact identical with the print which is on 38D and which is covered with plastic or tape prior to today?
A  Yes.
Q  You have?
A  Yes.
Q  Then I think, Your Honor, that's the question to be asked whether he identifies it now or not. The witness can state whether he has done that and testify what he's found.
MR. CROOKS:  Your Honor, it's my question and I think I'm entitled to ask it the way I choose without help from Mr. Lowe.
MR. LOWE:  If he wants to do that, I don't think it makes any difference. I withdraw the objection.
THE COURT:  Very well.
Q  (By Mr. Crooks) Would you examine them with the glass if you feel that's necessary.
Have you completed the examination?
A  Yes.
Q  Do you have any opinion as to whether or not the latent fingerprint which is still on 38D is in any way comparable to the one on 38E?
A  It is the same latent print.
Q  Identical, would that be correct?
A  Yes.
{2555}
Q  Is there any question in your mind at all on that?
A  No.
Q  Insofar as that paper bag was concerned from your examination of it, is there any indication that there was any other print other than the one found?
A  May I remove the bag from the plastic?
Q  Well, I guess. Yes. If you would.
A  There are no other latent prints of value.
Q  Insofar as this bag is concerned from your notes, have you ever been informed that there were other prints found on it that are not now apparent on it?
A  No. I had no indication of that.
Q  With regard to this examination that you've testified about on cross-examination, would it be fair to conclude that there were literally hundreds of prints found on or about this area of various people, the mobile home --
A  Yes. There were several hundred prints.
Q  And there was only one print, however, found on the paper bag?
A  That's all that I saw.
MR. CROOKS:  We have no further questions.
 RECROSS-EXAMINATION
BY MR. LOWE:
Q  Mulholland, you used a term a couple times that may be of special use in your profession. Let me ask you, when you speak of a latent impression of value, tell the Court what the {2556} term of value means.
A  A term of value is used to distinguish a latent print which has sufficient ridge detail to be of value for identification purposes as opposed to those fragmentary latent prints that do not contain a sufficient amount of ridge detail to be of value. In other words, the prints that are of value are prints that can either be identified or nonidentified provided the comparable area of the ink prints are present for comparison purposes.
Q  So that, for example, on the paper bag which has been marked as Exhibit 38D there may be many prints on there that are either smudged or too small a part of the print or a side of the finger that isn't on a print card or some other way insufficient for you to consider it as being quote "of value" end quote and using it for identification, isn't that true?
A  There are not many other. There are a couple fragmentary latent prints that are of no value.
Q  But as to any item that you examine and routinely as to items brought to you for testing, it's frequent that there are only a small percentage of all of the impressions of one sort or another that are actually of value, isn't that true?
A  I would say it's a small percentage that are of value; yes
Q  Now as to your report of January 8, 1976, I think you said this in general when we first started on cross-examination I want to ask you specifically, would I be correct in assuming {2557} that you do not remember in your own recollection all of the names and different items that you found prints on that you have described in this report that you rely on your records and on this report and other documents in order to recall what you examined?
A  Yes.
Q  And to the best of your ability this report insofar as the information it contains was accurate on January 8, 1976 when you submitted it, wasn't it?
A  Yes. It was accurate.
MR. LOWE:  Your Honor, we would offer the exhibit. I don't remember what the exhibit number is. The witness has it, I believe. We would offer it, Defendant's exhibit 156 in evidence on the grounds that it contains relevant evidence of other persons whose identifiable fingerprints were found in and about the motor home, what has been called the mobile home at times, and the Plymouth station wagon, and on the grounds that this witness does not have direct recollection from which he can testify as to these matters and this is the best evidence and is relevant evidence in this case.
MR. CROOKS:  Your Honor, the United States objects to it on the same reason we have objected numerous time before. If Counsel wishes to ask this witness about anything contained in his report, we will have no objection providing it's {2558} relevant. However, this is a lengthy report pertaining to numerous identifications which have absolutely nothing to do with his testimony or even this case. I do not feel it's relevant. It does nothing but clutter up the record. I do not feel it's admissible or relevant. We object.
MR. LOWE:  Your Honor, we have testimony about this mobile home and particularly that it was moved by an unknown person at some point with perhaps more than one person in it. That's the state of the testimony. We believe that this is relevant to direct evidence that the jury can properly consider in determining, first of all, who might have been in the mobile home when it was at this location in Oregon and, secondly, as to identification, for example, of the person who allegedly climbed over the fence. It is certainly relevant evidence. It is not valuable from any other source and this is the best evidence.
MR. CROOKS:  Your Honor, may we approach the bench?
MR. LOWE:  Government Counsel make his offer in front of the jury, then he wants to come to the bench.
MR. CROOKS:  I don't recall arguing the facts. The fact of the matter is if he has relevant evidence. Counsel knows the proper way to put in relevant evidence; it's through the witness. He can simply ask the witness if there is some relevant fingerprints and I have been very lenient with him in that regard and I have not objected to {2559} going into other fingerprints found. But Counsel simply wants to put the entire thing in through a report without going through the witness. This witness is a qualified expert and he can give his opinions and recollections based upon what he recalls as may perhaps be refreshed by the report. The report is irrelevant.
THE COURT:  The ruling of the Court is that the report is not the best evidence and the offer of admission is denied.
MR. LOWE:  May I ask the guidance of the Court I'm not sure that the Court, what the Court just said but it sounds to me, first of all, the witness said he could not recall that he would --
MR. CROOKS:  Your Honor, may we approach the bench please?
MR. HULTMAN:  May we approach the bench?
(Whereupon, the following proceedings were at the bench)
MR. HULTMAN:  Your Honor.
THE COURT:  Just a moment.
I gave you a half an hour recess to check that report.
MR. LOWE:  Yes, Your Honor.
THE COURT:  I have given you unlimited time to examine this witness. This witness' testimony is the best evidence and {2560} report is not the best evidence and this is not in the interest of justice to have that report be received. If you have some additional questions to ask this witness, you may take the time to do so.
MR. LOWE:  Judge, may I clarify one thing. The report is not what we looked at at the recess.
THE COURT:  This report you have had. At the bench conference you indicated to me you had had this report for weeks.
MR. LOWE:  There is no denial, Judge.
THE COURT:  Then you have had an opportunity to study it. The witness is on the stand. If there is anything more you need from that report, that's the time to get it.
MR. LOWE:  I understand that.
THE COURT:  You are not going to submit that report to the jury. It is meaningless and it would only be confusing and misleading. This is why I'm concerned with these constant offers of evidence that are not in my opinion admissible.
MR. LOWE:  We respectfully don't hold the same opinion Your Honor does. I understand what Your Honor is saying. I'll abide by it. I want to be clear Your Honor knows what we looked on the recess were working papers he used in preparation.
{2561}
THE COURT:  The ruling of the Court is this is not the best evidence.
MR. LOWE:  As I understand what the foundation of your Honor's ruling is, that this witness is the best evidence and he does not recall this information and that he relies on his report or his working papers entirely. Am I to ask him to read the working papers or read the report in order for the jury to get the information that I'm trying to get to them?
THE COURT:  You have had a copy of the report. You can give him a copy of the report and you can examine him with reference to specific items in that report.
MR. LOWE:  Your honor, the specific items I'm interested in getting, I believe they are relevant, Your Honor may rule it's irrelevant, I want to have the jury to know all the items that had prints of value on them in the mobile home and the Plymouth and the names of the people who were identified on those prints. Now that's exactly what this report is.
Has Your Honor had a chance to see the report?
THE COURT:  I have not seen the report.
MR. CROOKS:  Your Honor, I object to this aspect. The United States, whether it's done orally, through the witness or done to the Court, we have a very fervent objection to throwing I names and places that have nothing to do with {2562} the witness' testimony. He was put on for a specific purpose, to identify the prints of Mr. Peltier. That is exactly what he has done. I have been more than lenient with Counsel going into completely irrelevant things, completely beyond the scope of our direct examination.
Counsel themselves, as I understand it, have a fingerprint expert which they can call and I object very strenuously to Counsel attempting to prove through our case something that has nothing to do with this man's direct examination.
Now I haven't objected up to this point because Counsel hasn't pushed it that far, but if he's contending he has a right through this witness to go through every identification he made, this witness would be on for a day and that's not proper and I do not feel it's relevant in any way at this time.
If he wishes to go into items that pertain to Mr. Peltier, that's fine. That's what the witness was called for.
MR. LOWE:  Of course, the reason I ask to submit the report is so I don't take a day of reading it with him. That's it simply.
MR. CROOKS:  The United States objects to it either way you try to prove that.
MR. LOWE:  Your Honor, I would make an offer of proof {2563} that the information in this report as to the individuals identified and the location and other information about the prints that were identified to those individuals is relevant to the defense in this case. I would propose to get that to the jury.
Now I'm willing to just submit the document. I'm willing to ask the witness, giving him a copy of it and leading him through it. I'm afraid that will take a long time and do no more than giving him the report will do.
I might add, the report that we have marked has markings and we'll have to delete those. I didn't mean to do that.
THE COURT:  Specifically what is it that you are trying to prove?
MR. LOWE:  I'm trying to prove there were other people other than Leonard Peltier whose fingerprints were found in the nobile who were not arrested at that time and who might equally have been the person who went over the fence, who fired the shot,who drove the van away and who possessed among other things these various items that have been identified that we feel are prejudicial.
THE COURT:  I think that's self-evident there were other people in the van. There has been testimony there were other people in the van.
&MR:  LOWE:  Some of these people are also directly {2564} linked with the so-called crime scene. They are directly linked with other weapons.
THE COURT:  What other people?
MR. LOWE:  For example, Your Honor, LeRoy Casodos was the owner of a vehicle in which Special Agent Williams .357 magnum was found in the Rose Bud raid by the FBI. LeRoy Casodos is one of the people mentioned in this. Anna Mae Aquash was at the crime scene and I believe there is testimony she was also at Al Runnings when the Rose Bud raid was conducted.
THE COURT:  I don't know what you're talking about, "Rose Bud raid."
MR. LOWE:  There was a raid by the FBI at a place called Al Runnings on the Rose Bud Indian reservation at which time the M1 rifle, I don't think it's in evidence yet but one of the weapons and ammunition components and other evidence was seized which has been used in this investigation, I believe. Am I correct some of that is already in by stipulation?
MR. CROOKS:  I don't know.
MR. LOWE:  I think so.
If it hasn't been, I'm sure they're going to put it in.
The M1 is one item that sticks out in my mind. That's when that item was found.
{2565}
I think it's important to show there were other people at various times located with the group and with the weapons that had been at the crime scene and now are found in Oregon in order to show that there are other hypotheses consistent with the innocence of Mr. Peltier in Oregon for the jury to consider.
THE COURT:  This will go beyond, it is going beyond the direct examination. It is a matter for the defense.
MR. LOWE:  All right, Your Honor.
THE COURT:  You can try to put that in in defense
MR. LOWE:  I would present to Your Honor as a practical matter, if we have to call this witness back for this sole purpose of calling the witness. I'm willing to do that. It's going to inconvenience this witness terribly. I'm going to make the proffer now and say that will be the only other thing we will have and I'm finished. If you want to rule on relevance, if you're going to rule it's just a part of the defense case, I will represent to your Honor I'm through with this witness except for this information.
MR. CROOKS:  Your Honor, number one, I strenuously object to keeping this witness on tap.
Now, as I understand it, Counsel has got an authorization for an expert fingerprint examiner and if he wishes to come in and present evidence, I see absolutely no reason for forcing this witness back in as a defense witness.
{2566}
Now I have understood that that was the entire purpose of authorizing experts for the defense. Now if Counsel will lift the names that he wishes to be read into the record as having touched items in that motor home, I have no objection to that. There is no contest there were other people there. There were many other prints found.
THE COURT:  It seems to me that's --
MR. CROOKS:  That's so obvious there is no big deal.
THE COURT:  It seems to me that's the logical solution.
MR. LOWE:  Your Honor, that certainly would serve part of the purpose we're trying to accomplish. We also feel it's relevant as to which items were touched particularly in regard to some of them. I've read through here. Some of them have touched specific items like the receipt for the permit.
THE COURT:  You have the report. Counsel has stated you can read into the record at this time names of the persons that were in the --
MR. CROOKS:  That he made identifications of that would have been involved in touching something that was examined in the van or the Plymouth. I have no objection if Counsel wishes to do that. But my point is that this witness should not be held around waiting for examination that {2567} is completely and, totally immaterial. We have offered this witness for one purpose, to establish the prints of Leonard Peltier. Not even a serious attempt is made to impeach this witness' testimony, but counsel is attempting to turn them into his own witness for some purpose and that is improper.
Now I have offered, just to avoid an impasse, that if Counsel wishes to state the names of those who have made positive identifications, I'll have no objection because those people were in the van at one point in time and touched something in the van and I have no objections to that if it's done in that manner.
MR. LOWE:  Let me just say, we would not hold this witness because he's an expert, Your Honor, but because he has within his reports the testimonial information we seek about these other people.
THE COURT:  Counsel has just agreed.
MR. LOWE:  I understand that. We're not saying we would hold him because he's expert, because of the information he has. I have made the offer and I sense from what Your Honor has said that your Honor may turn down the offer.
If Your Honor turns down the offer, then over our objection to that ruling I would at least read into the record the names which have been identified in this report and I gather that you would not oppose that.
{2568}
MR. CROOKS:  No. I won't oppose that. They are in the report. He found the fingerprints of them.
MR. LOWE:  I would make the offer, Judge, of the exhibit, and if you rule on that against me, then I will simply read the names that are contained here.
THE COURT:  The offer of the exhibit is denied.
MR. LOWE:  Your Honor, I'll read, do you have a copy of this that you're looking at?
MR. CROOKS:  No, I don't.
MR. LOWE:  You can look at that exhibit and I'll read it. I'll make sure I read the right ones. All right.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
{2569}
(Whereupon, the following proceedings were had in the courtroom, in the presence and hearing of the jury:)
THE COURT:  The offer of the exhibit is denied.
MR. LOWE:  Your Honor, pursuant to the rule of the Court, I am reading -- what is the exhibit number on that, Mr. Crooks?
MR. CROOKS:  156.
MR. LOWE:  Defense Exhibit 156 for identification. I am going to read the names on the pages beginning with the third page, although it is not numbered, as to whom any identification of prints is shown in this report. The first one is Leonard Peltier. The second is Dennis James Banks. The third Kenneth Moses Loudhawk. The fourth is Russell James Redner. The fifth is Annie Mae Aquash. The sixth is Darlene Pearl Nichols; and those are the only ones who are identified as having been identified as to prints contained in the Dodge motorhome, Plymouth stationwagon or the 37 negatives furnished by the Oregon State Police.
Did I read that correctly, Mr. Crooks?
MR. CROOKS:  Yes.
MR. LOWE:  All right, your Honor, and subject to the Court's ruling, I believe that's the only questions I have.
May I have just a moment to confer?
THE COURT:  You may.
{2570}
(Counsel confer.)
MR. LOWE:  That's all I have, your Honor.
MR. CROOKS:  We have no further questions, your Honor.
THE COURT:  I beg your pardon?
MR. CROOKS:  We have no further questions.
THE COURT:  You may step down.
MR. LOWE:  Your Honor, we would ask that this witness be held subject to the previous discussion with Government counsel, and I realize there may be some question as to when that is done. I would suggest that counsel can get together after court today. I would simply like to put the Government on notice that we will make that request and not ask that the Court or Government make any concession at this point on it.
MR. CROOKS:  May we approach the bench?
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. CROOKS:  What is going on now? I just agreed to what you wanted, to read the names in. Now, you are trying to get the witness committed to some kind of time, and I will object to that.
MR. LOWE:  He can go back to Washington. I have not had a chance to talk to Mr. Taikeff or Mr. Ellison about the Court's ruling just now, as to whether we need {2571} additional information or not. All I am saying is that we may request that he will be needed. It may be we won't, and as soon as we discuss it after court, we will let you know.
MR. CROOKS:  Your Honor, I think the Court is well aware this man is an expert who has got testimonial duties in other cases. He is going to be all over the United States testifying in other cases. He will probably not be available, No 1.
This is harassment, there is no other word for it. Counsel has got their own expert. If they wish to present expert testimony, they have got the man. If they want to cross examine him, that's fine; but this is outrageous to hold up an expert witness and have him stand by in Washington, D.C., for a call or possible call from defense counsel.
THE COURT:  I did not understand that the request was standby. The request was that he would stand by here this afternoon until after he has had an opportunity to confer with Mr. Taikeff.
MR. LOWE:  And perhaps be available, which might mean be anywhere. He could be testifying somewhere else and doing other duties. If we needed him, he would be available.
I would point out to your Honor that Mr. Crooks wants {2572} to have it both ways. He does not want me to make him my own witness today on the one hand and get in what might be proper, relevant evidence as a defense matter. On the other hand, he doesn't want this man available to me when we do put on the defense case. If he doesn't want him available, he ought to allow me to make him my witness. I don't know that I have any questions.
MR. CROOKS:  I have given Mr. Lowe more than I think he is entitled to by letting him read the names.
THE COURT:  On the basis of the record that has been made, the names read into the record of the persons identified for the purposes of having been in those vehicles, the request is denied.
MR. LOWE:  All right, your Honor.
(Whereupon, the following proceedings were had in the presence and hearing of the jury:)
MR. CROOKS:  Your Honor, may Mulholland be excused.
THE COURT:  You are excused. WITNESS:  Thank you, your Honor.
(Witness excused.)