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

BENCH

VOLUME 14

{2830}
 MONDAY MORNING SESSION
 APRIL 4, 1977
WHEREUPON, the following proceedings were had and entered of record on Monday morning, April 4, 1977, at 9:15 o'clock, A.M. without the presence of the jury and the defendant being present in person:
THE COURT:  There probably are one or two matters that should be touched on before the jury is brought in. One of the matters that was left on Friday was the offer of paragraph four of Defendant's 166.
Mr. Hultman, do you have any more information on that?
MR. HULTMAN:  Your Honor, I have made inquiry, I have searched my files and I can't come up with anything as to who the author is. I will do my best to give, and I think probably the info is better within the purview of the defendant's counsel than it is within the government.
What it appears to me that this is either, it's information first that came to my attention in the courtroom here for the first time. It appeared along with a series of documents that clearly came from Canada when you examine the remainder of the documents with the exhibit we're now talking, the proposed documents. It is also obvious in the lower left-hand corner that a specific date was written in back in February of '76 and it's clear it's done by one and the same person, and it would appear to me it's done one and the same {2831} time because the writing is in the very same spot, it's the very same type of writing and so forth.
What I am postulating, Your Honor, And so the Court will know and this is purely a postulate on my part and it's only a conclusion is that, one, this material came from Canada. I am convinced in my own mind because it would be the only source of any kind.
We would have no knowledge of any kind of any of the items that are included there, including the exhibit.
Secondly, I am wondering if possibly it came from the early proceedings and in fact came from the extradition proceedings and came to the defendant's counsel through those proceedings rather than from the United States of America.
So that is the best, Your Honor, that I can indicate. One, I have never seen them before and I have no knowledge of any kind; two, I think it's evident on the face of them that they are Canadian in nature and they came from the same source because of what is written in the lower left-hand corner; thirdly, because it is Canadian material I'm postulating that it did come from Canadian source and as to where exactly it was obtained I'm only postulating but only because I can't find anything of any kind on any of the documents because I have not, did not see the documents, any of them until here in the courtroom, that possibly they came to Counsel's representatives. I'm not saying Mr. Lowe and Mr. {2832} Taikeff but I'm referring primarily to Mr. Ellison or the group that Mr. Ellison worked with. That it may possibly have come from the Canadian authorities and Canadian proceedings but I'm only postulating because I can't come up with anything.
MR. TAIKEFF:  Your Honor, may I offer some suggestions and possibly some information.
First of all, I think I should attempt to clarify our position. Namely, that that document has its origins not with the defense, either the defense team that was in the last trial or the present defense team, and not with the public at large but either, now that I hear Mr. Hultman's suggestion, either with the United States' attorney's office, it having been turned over as part of Brady material in the last case which is what Mr. Ellison informed me and I asked that Mr. Ellison come into the courtroom. I assume he'll be here shortly. Maybe he can shed some light on that particular factor.
After hearing Mr. Hultman, I would be prepared to say that either it was prepared by Canadian authorities who were interested in some phase of this case or by the United States' attorney's office in the course of fulfilling some pretrial obligation with respect to the last trial, whether it was a Rule 16 obligation or Section 3500 obligation or a Brady obligation. The point is, Your Honor, that it's origins are {2833} with either the United States Government or the Canadian government and, hence, its authenticity is not therefore in dispute.
I think what it represents is fairly apparent on its face and at this time I will make no effort to argue what its meaning and relevance are. But I think its authenticity, its source is not in dispute, even considering the expansion of the possibilities as just recently articulated by Mr. Hultman. So much for that particular point.
Now Mr. Hultman and I observed together the writings in the lower left hand of other documents and in general terms I agree with his statement.
I would like to be more specific about that. Defendant's Exhibit 169 for identification as one of those documents and I'm coming forward to the clerk so the clerk may hand them up to Your Honor if Your Honor wishes to see them. That has a date 2/16/76-1 in the lower left hand. I do agree unqualifiedly with Mr. Hultman that they all appear to be written in the same hand except we don't know whose hand. I also suspect he's correct when he suggests it may be a Canadian source because the 7 in every place where it appears has a cross member, a horizontal cross member which is a European method of writing a 7.
The document which is defendant's exhibit 170 has a {2834} similar date except it's February 7.
171 has a similar date, namely, February 6.
167 has no date in the lower left hand corner and 168 has no date in the lower left hand corner.
Yes. On Defendant's exhibit 171 there are two things to be noted. The year is listed as '75, possibly a mistake in writing it, followed by a dash 4, one of the documents having, a dash 1. I suspect that indicates a series of some kind.
So in the main I have no quarrel with Mr. Hultman's actual suggestion. I think, though, they add up to the fact that either the Canadian government or the United States government, probably if it's the latter based on information supplied by the, information supplied by the Canadian government in one form or another prepared the document in question and therefore since it is fairly clear that it was never prepared by the defense or the rest of the population other than Canadian officials or United States officials, its authenticity will not be questioned.
THE COURT:  Well, the other problem the court sees on this proposed exhibit is that Mr. Parlane on cross-examination was not asked whether or not the statement was made to him.
MR. TAIKEFF:  That's most significant, Your Honor, that was not asked. It was not asked by the government. The {2835} defense only asked whether or not that was in his report. The government chose not to ask whether the statement was ever made to him.
Your Honor, we have a suggestion, I have no personal knowledge that we may know who wrote those dates in the lower left hand, and Mr. Ellison just informed me that Mr. Nadler who amongst other things maintains the files, says that that's his handwriting. Now if Your Honor wishes a more formal presentation of that fact, of course, we could do so immediately.
THE COURT:  No.
MR. TAIKEFF:  Apparently this was some form of notation to keep track of the date which it relates to and apparently the '75 was a miswriting and the dashes apparently indicate the number of documents in question, apparently there were four such documents.
Also Mr. Ellison informs me that Mr. Nadler just said that those documents were received in connection with the last case as part of Brady material, that's the Butler and Robideau case.
Now I think it's significant of that fourth paragraph, assuming, if I may for the moment, and I trust there is no serious dispute about this, that the source is the government, whether it be the Canadian government or the United States government, that we heard no testimony {2836} from Parlane on his direct concerning an admission or a statement by the defendant that he would have shot at the police officers given a chance to do so, that there was no such recordation in his report and the government chose not to ask Parlane whether such a statement was ever made to him.
{2837}
That's the state of the record as far as Parlane is concerned.
When you compare that to the testimony of the other Canadian police officer, where in essence he offers testimony which says, "Given a chance, I would have shot at you police officers, if I knew police officers were coming," which is also not recorded in his report or not seen by him to be included in someone's report.
We have what I think is an interesting and perhaps a peculiar situation. Non-recorded statements in a situation where there are hundreds and hundreds and hundreds of words carefully preserved in specially prepared reports concerning conversations with the Defendant are testified to. One officer testifies to a statement which is nowhere recorded, which he claims to have suddenly remembered while reminiscing about the events, and it follows a parallel track of the statement which purportedly Parlane would have testified to at an earlier time. Yet it is not in Parlane's report. He doesn't testify to it on direct or that he was called to testify to statements made by the Defendant, and the Government asks him on redirect when he is on the stand the second time, "Was such a statement ever made to you?"
Now, I think the fact that the Canadian Government or the United States Government was asserting at one time {2838} that the Defendant allegedly made such a statement to Parlane, under the circumstances as they evolved in this courtroom makes the existence and the content of that assertion relevant for the jury's consideration of whether or not the testimony concerning the overheard, the alleged overheard conversation between the Defendant and the elder, whether that earlier statement, the first one testified to should be believed, whether in fact it really occurred. Obviously we take the position it did not occur.
The other fact sheds some light on the question of whether or not the jury should believe the testimony concerning the elder man and the Defendant, and it was offered in that connection.
MR. HULTMAN:  Might the Government respond just briefly, your Honor?
THE COURT:  You may.
MR. HULTMAN:  First of all, your Honor, I think it is clear and indisputable on this item, that this is an item which has been in -- and I am not going to, you know, decide what is the old case and what is the new case -- but the same investigator that was in the last case and has been in it ever since and is in this case is the one that produced this document. It has been within the purview, the knowledge and in fact they were the ones that {2839} brought it to the Court's attention, and very frankly, brought it to my attention for the first time.
I think we are all in agreement on that, that that is some time -- at least I believe certainly at some time back in February or March, because I would have knowledge of it had it been in April when I became someone who was a party to and counsel in this case. I think Mr. Lowe and I have both been aware of it from that point on if that had been the case, so first of all, we are dealing with information as a part of 16, as a part of Brady, as a part of 3500, whatever it is. The basis for it is of no significance. It is information in the hands of the defense to properly prepare for whatever it is they then want to do with it.
Now, the document itself, in no way is it a signed statement or any significance of that kind. I think on the face of it, one would conclude that it is somebody putting down on a piece of paper what they feel or appear to be what certain information is.
Now, possibly it is an oral inquiry of some kind. That we do not know. It is obvious that it is not in any -- certain parts of it are not in any report of any kind because they have never appeared in any place at any time in the reports of anyone, so then we are faced with the issue:  All right, what then in the posture of the trial {2840} itself does 166 take on? And it seems to me, your Honor, that the document itself until and unless it can be shown to be the statement of Constable Parlane, or specifically not to be, it has no particular significance of any kind.
Now, for the defense to say, "Well, the Government didn't choose to ask him this question, and so thus we raise it," I say, your Honor, that the significance here is that if there is some use concerning a possible statement that Constable Parlane did or did not make, that you can't leave it in the posture of a ghost as far as the witness on the stand. I don't think he made such a statement, from what he said on the witness stand and so forth. Defense had the opportunity, if they wanted, to ask that question, if they wanted to go into it in any way. If they wanted to pursue with the Canadian witnesses in any way a possible source of this statement, that was their opportunity, and I say to the Court by not pursuing it in some ways and without a showing beyond what they made at this point, that 166 is not the best evidence. It is not admissible here, and it has no probative value.
Further, there is no showing of any kind that it is a recent -- I mean if you are going to say it is a fabrication or a recent truthful statement, that it is something of recent origin. It is something by all the parties which will agree to something that goes back {2841} somewhere at least to the early part of 1976 because it has been within the possession of the -- if not Mr. Ellison, Mr. Adler whose now penmanship is that the dates are in. It is something that goes back at least to that time frame. It is not something then that has been a surprise or something which is new which has appeared on the scene.
So it is for these reasons, your Honor, that the Government objects to the introduction into evidence of Defendant's Exhibit 166.
MR. TAIKEFF:  Your Honor, I don't understand whether Mr. Hultman is now backing away from the proposition that this was a Government prepared document. I agree with him it appears to be a recordation tending to illustrate what will be asserted, and that is precisely how we characterize it.
We claim that this document was prepared either by the Canadian Government after consultation with their own police officials or the police officials' reports, or it was prepared by the United States Government after similar consideration or consultation, and that it constituted an assertion that they were giving notice of.
There are four paragraphs on that document, three of them contained admissions allegedly made to Canadian Police Officer Tweedy, and the last one--
{2842}
MR. HULTMAN:  (Interrupting) Two to Tweedy and one is Mitchell.
MR. TAIKEFF:  I stand corrected. Altogether the document contains statements allegedly made to the three police officers, two to Tweedy, one to Mitchell and one to Parlane.
We characterize it exactly the way Mr. Hultman characterizes it, as a document which gave notice to somebody of an assertion that the testimony would be as indicated on the document.
Now, that's precisely our point. Mr. Hultman and I are not in disagreement on that fact. The Government prepared document giving notice of an asserted or purported fact.
The point is that came from some place, some Government official had some reason to believe that testimony was going to be offered, that the Defendant Peltier made certain statements. That is exactly what we offer it to be, precisely, so we have no factual dispute as to its origin or what it meant when it was prepared.
That I think covers the last portion of Mr. Hultman's remarks.
Excuse me one second, your Honor.
(Counsel confer.)
MR. TAIKEFF:  The subsequent failure of the {2843} Government to elicit any such statement from Parlane, either when he originally testified or on his continued redirect when he returned to the stand for the second time, is probative of the believability of a very similar statement but couched in different terms made to another or in the presence of another Canadian Police Officer, both statements going unrecorded, notwithstanding the large number of documentation, recorded statements made, allegedly made by the Defendant.
So I think that Mr. Hultman in the main has conceded the authenticity of the document. I think primarily what remains for your Honor's consideration is whether we should have a legitimate opportunity to attack the alleged statement of the Defendant on as many grounds as possible, including the fact that the Canadian authorities were apparently planning to offer essentially the same testimony out of the mouth of a different witness under apparently different circumstances.
{2844}
MR. TAIKEFF:  I'm also advised by Mr. Ellison in the last few moments that the document was received while the last defense team was in Cedar Rapids. And so apparently that would not be the early part of the year.
Excuse me one second.
(Defense counsel conferred.)
MR. TAIKEFF:  It would have to be in the latter part of April or later of last year. In case that information helps Mr. Hultman pin it down.
I would also like to point out to Your Honor that one of the things that the Government was supposed to do was check its files over the weekend. And Mr. Hultman has not said whether indeed he looked in his files, and whether if he did he found the copy of that document in his files.
MR. HULTMAN:  Well, I will respond to that, Your Honor. I'm not trying in any way to not fully respond. I tried to say that at the outset in my beginning remarks that I have never seen the document, either before or since except in the courtroom when it was brought out to the attention, and I have done the very best to search my files over the weekend to find it.
But I don't think that has anything to do with anything at this particular point anyway. I still think it comes back to the final question, and that is whether or not it has any probative value in this particular case, and whether it's {2845} admissible. And I won't address that any further.
THE COURT:  Well, I'm not going to rule on it at this moment.
Second matter before the Court is the Oregon state police report. I've examined that. Frankly I see little or nothing in there that couldn't be disclosed, but because of the request of the Oregon official the Court will honor that request and not disclose the entire document.
The copy will be sealed and made a part of the record in this case for possible appellate review.
The matter related to the question arose as to when the certain firearm was found. On page 2 of the document, the last sentence of the third paragraph cites "At 4:20 P.M.," and from reading the document as a whole it's obvious that 4:20 P.M. relates to the date of November 15, 1976.
{2846}
"At 4:20 P.M. under the power of the search warrants, the search of the vehicles began at Art's Service. Sergeant Zeller from the Oregon State Police I.D. Bureau stated his search for fingerprints in the motorhome."
"At approximately 6:00 P.M.," this again would still be the 15th, "under the request of FBI agents, the station wagon was opened for a quick search for weapons. At this time it was determined that there was a quantity of dynamite in the station wagon. The cases of dynamite had been concealed in the rear of the station wagon by being covered with green plastic, sleeping bags, clothing and other items. At this same time a .44 magnum pistol was found under the right front seat of the station wagon. It was noted by writer at this time that both vehicles were equipped with citizen band radios and both radios were set on Channel 11. The station wagon was relocked to preserve any fingerprints and Sergeant Zeller continued his search of the motorhome. At 7:00 P.M. writer contacted Lt. McCullum in Milwaukee State Police in charge of the arson division and advised him that the vehicle contained a quantity of dynamite. Writer requested that Lt. McCullum contact Trooper Bill Fettig, advise him of the dynamite and see if he would be able to come to this area to dispose of the dynamite. During the search of the motorhome on this date there were several boxes of ammunition and several rifles found. These items will be listed under {2847} exhibits on this report."
Next paragraph, "At 9:40 P.M., the vehicles were secured and the search was discontinued at this time due to the search warrant limiting search between the hours of 7:00 A.M. and 10:00 P.M. It was also determined that the search would not be continued on this vehicles until Trooper Fettig of the arson squad arrived in this area to dispose of the dynamite which was in the station wagon."
The report goes on, "At 3:15 P.M." that is the fourth paragraph on page 3, and that 3:15 P.M. would obviously be the 16th of November, yes, the 16th of November, "writer, Trooper Fettig, Sergeant Zeller, Corporal Kramer and two FBI agents contacted Art's Service to remove the dynamite from the Plymouth station wagon. Writer photographed the dynamite as it was being removed. The dynamite was transported to a location north of Ontario where Trooper Fettig set off one stick first, then a combination of three sticks and then burned the remaining seven boxes of dynamite. Photographs were taken of this. Writer obtained a wrapper from a stick of dynamite from each of the seven cases."
"During this time, Sergeant Zeller remained at the scene and continued processing the vehicle. At 5:20 writer returned to Art's Service and continued searching the vehicles and inventorying the items seized. At 9:00 P.M. the vehicles and building were secured. It was decided that the vehicles {2848} should be moved to a safer location to preserve the evidence. Writer contacted Sergeant Robert Mullins of the National Guard Armory, obtained permission to store these vehicles at that location. At 10:00 P.M. the transfer started, and at 10:35 P.M. the vehicles were secured at the armory. They were towed to this location by a wrecker operator from Art's Service."
On page 4 on the first paragraph, "At 11:25 A.M. writer contacted the National Guard Armory and continued the search of the vehicles. At 12:05 P.M. writer had finished the search of the motorhome and turned it over to the FBI agents for their search. Writer inventoried the items seized from the motorhome and then re-searched the Plymouth station wagon; and at 3:45 P.M. writer turned the station wagon over the FBI for their search. Most of the items seized by writer during the search of the vehicles have been photographed and turned over to Special Agent Steven Hancock. A list of these items is contained on an information report and receded to Agent Hancock. The entire list of items seized from the two vehicles, from the four suspects taken into custody and found at the scene, will be contained in this report."
"On November 19, 1975 at 1:40 P.M. writer made return of search warrant to Ontario justice court judge Nita Bellows."  {2849}
Now, there is attached here a list of exhibits. I don't know what the Government's position on that is, on the list of exhibits.
MR. CROOKS:  I believe that counsel already has that. I have no objection at all, and I don't think the Oregon State Police, in view of that list, were simply copied and supplied to them.
I believe that that is the same list substantially they already have in the 302 form.
THE COURT:  Very well. The list of exhibits will be copied, photocopied, and a copy made available to counsel.
MR. TAIKEFF:  Your Honor, as to the last point commented on by Your Honor, when Your Honor started reading from the report which the Government says the Oregon State Police had asked them not to reveal because of some sensitive or secret information that's contained there, it became apparent to myself that I had the document which Your Honor was reading from and previously turned over to the defense in connection with the last trial.
I'm holding that document in my hand.
MR. CROOKS:  That apparently --
MR. TAIKEFF:  The big secret wasn't a big secret. Last year it suddenly became a big secret. That's my first point.
MR. CROOKS:  I don't know that it's a big secret. If they had it they have it.
{2850}
MR. TAIKEFF:  We didn't steal it, I can assure Your Honor of that.
THE COURT:  Well, as I commented, I saw nothing in the report that would have --
MR. TAIKEFF:  I just wanted to underscore Your Honor's observation.
THE COURT:  I appreciate that.
MR. TAIKEFF:  So Your Honor would be secure that the defense joins with Your Honor's observation about there being nothing secret in this document.
Secondly, Your Honor, I would ask the government to produce any 302 by Hancock other than the one that I'm now holding which shows a date of transcription of 11/21/75, date of dictation, same date, and interviewed on 11/18/75, which is a one paragraph 302 to which is attached three sheets which appear to be copies of a schedule, the contents of which are the same as the report which Your Honor was reading from but which in fact is not that same schedule because the schedule which Your Honor was looking at is typed in such a way that the paper is held with the 11 inch dimension running from left to right. The schedules which are attached to the 302 have the paper held so that the eight and a half dimension runs from left to right. So obviously there are two Oregon State Police reports and Your Honor only has one of them. The 302 of Hancock dated {2851} November 21, 1975 became a portion of the other as yet unrevealed Oregon State Police report.
MR. CROOKS:  Well, apparently we're off on a wild goose chase, Your Honor. I have no knowledge that we have any other 302's than what were turned. I would assume that Officer Hancock simply retyped the list when he prepared it to the form, or more probably that is his own list that he prepared in the usual course of his logging in of evidence.
We've given them everything that Mr. Hancock has had that pertains to that matter.
MR. TAIKEFF:  Your Honor, I would like to have that particular 302 of Agent Hanson marked for identification. I'm sorry. It's Agent Hancock. It makes reference to a Mr. Hanson.
I'd like to have that marked for identification should at some future time it be necessary to docket that item or otherwise mark it a part of the proceedings.
THE COURT:  It may be marked.
The government I presume will make a search to see if there is additional 302 prepared by, dictated by Agent Hancock.
MR. CROOKS:  Your Honor. I will look.
But the best record we have now, they have got every one that we have got. If there are some other ones we'll certainly give it to them, but I'm not aware of any.
{2852}
MR. TAIKEFF:  It may be, Your Honor, in order for the search to be fruitful that it would be appropriate for Mr. Crooks to ask the FBI if they have supplied him with all the 302's which may exist on this subject.
THE COURT:  I didn't suggest but I felt that's probably what he would do.
MR. TAIKEFF:  He said he would look in his file and I thought in the event he intended to look only at what he had he might also make the inquiry of the FBI.
MR. CROOKS:  This is ridiculous. I don't know what other conclusion they can make. If I'm going to go back to FBI and ask them if there is any 302's. Stupid remark.
MR. LOWE:  I think that point is important for Your Honor to be aware of. Last summer in the trial there came an occasion whether there was a 302 with regard to a witness for the government, James Harper. Mr. Sikma made a representation to the Court and at this point I don't in any way characterize it as a knowing misrepresentation or willful or ignorance representation, he said there was no other 302. It later developed that a Special Agent Chapman of the Cedar Rapids office of the FBI did have such a 302 and the government's position was that Mr. Sikma was not aware of that. Taking that at face value, what came out there and in subsequent discussions with the government is {2853} that the FBI has many documents and 302s and apparently the FBI culls out of all those many documents those which it believes are relevant and provides the U.S attorney with copies, perhaps on other occasions the government attorneys asked for other copies. But it's quite apparent that a situation existed at least once during last summer's trial when the FBI had a 302 which the government was not aware.
Judge McManus got rather upset when it came out there was such a 302 and there had been representation that there was not. That is why we made these specific requests we do not fall into some pitfall that the government counsel in good faith may believe there are no 302s simply because they are not aware of their existence.
MR. HULTMAN:  Your Honor, let me just respond to that.
First of all, any given agent maybe deals with any innumerable number of 302s during his lifetime and I think there is somewhat an attack here in the sense that it's an attack that somebody was not dealing in good faith in terms of providing materials.
On the one hand, when we provide every last single scrap of piece of paper that could possibly in any way have any relevance and I get accused, I have been accused, the government is accused, the FBI is accused we're giving them {2854} so much they can't find what it is they're looking for. Then I get it turned around the other way on the documents Counsel is referring to, I'll use his remarks now, one time or another he said, "We hope the last trial was passe," and I would agree but we do keep coming back, both of us. On the specific item the Court ruled that had no relevancy, if I remember very quickly, Mr. Lowe, that it had no relevancy of any kind. IT was such an innocuous 302 it had no relevance.
I'm representing in good faith the disclosure that's been made in this case, every scrap of paper that even came close to having anything to do with anything or any possibility of anything I have disclosed and I haven't disclosed it on the grounds that Mr. Hultman has searched two little personal documents of his file. My disclosure has been on the basis of my every cotton picking piece of paper or any information that anybody anywhere has got any knowledge of any kind concerning this case. In fact, on Friday I saw about six documents for the first cotton picking time myself.
Now the point I want to resist, Your Honor is any inference that the government in any way is doing anything but going back and seeking to the best of its ability whoever's got what in any files anyplace period, and that I want made very clear on the record. And I think this record of disclosure from the first day on the part of the government and {2855} on the part of any other authorities that have any relationship to the government has been that, totally open, forthright in every sense of the word.
WE will go back again, as I have in the past, and Counsel will, Your Honor, on anything, but that doesn't mean, Your Honor, that I'm not going to continue to resist the probative value of whatever those items may be and whether or not they're proper items to be entered into evidence here. That I want made very clear.
MR. LOWE:  I want to make sure again, underscore we are not suggesting government counsel is making any improper selection of some sort. The only discussion in this trial has been with regard to the FBI and all we're saying is there may be in existence documents we're entitled to and we're asking an inquiry be made of the FBI. It's quite apparent, for example, on Defendant's Exhibit 166 that that was given to us as Brady material and my recollection that we were required to initial all papers we got for 3500 material of Brady material that if a question later came up that we were given that last summer, the government could prove it my coming up with an additional copy.
It seems to me they can go back to that file of all those initialed documents and look through their Brady material documents. Defendant's Exhibit 166 should be there. That's the kind of inquiry we're making.
{2856}
We're not suggesting bad faith on Mr. Hultman at all, and Mr. Taikeff on several occasions has made that point quite clear and we make it clear again that that's the case.
THE COURT:  I think the record is very clear on both sides.
We'll move on to the request for any additional fingerprint charts that the government might have on the defendant. Do you have any response to that, Mr. Hultman?
MR. HULTMAN:  I could not check, Your Honor, only because the report hasn't got back to me yet.
THE COURT:  Very well.
MR. HULTMAN:  I should have it before the day is over, Your Honor.
THE COURT:  The matter of inquiry relative to whether any explosive devices inventoried were supplied by the government agents or their informants. I 'm not going to ask for such a certificate from the government absent of showing that there is some basis for believing that it might have been supplied by the government agents or their informants. The Court will withdraw and vacate its order sealing this information report. Obviously there is no need to seal it.
The clerk will at some point examine the copy of the information report which Mr. Taikeff indicated he had and if it's identical to the information report that I was {2857} reading from earlier this morning than the information report I was reading from may be returned to the United States.
MR. HULTMAN:  Your Honor, I have another matter I'd like to take up with the Court if you've finished with the other matters.
THE COURT:  Proceed.
MR. HULTMAN:  Your Honor, I just now filed and served on Counsel in response to a letter that was served on me on Thursday evening, and I don't want to get in and argue the law or anything on it. I just want to indicate that procedurally on Thursday at the end of the day I was served with a letter which is appended to this motion from Mr. Ellison in which he stated, "We intend to consider calling," that's the way the letter starts out to me. I don't know what that means but I know it means something.
Then it indicates later in that paragraph that I have to have available the following one, two, three, four, five, six, seven, eight, nine, ten, thirteen, individuals who are governmental employees ready and available to testify on Monday, April 4 at 9:00 A.M., which is this morning, until such time as they in fact do take the witness stand or are released.
Now the reason for my motion then is twofold:  first of all, I indicated at that time, one, that they would not be available and I want that made very clear. The reason was, {2858} I indicated at that time, first of all, was because on Monday morning I was sure we were still going to be dealing with the government's case, and I have so indicated that to Counsel from the beginning of time, almost at the beginning of this trial until as late as even this morning. That appeared to me that today and tomorrow and probably Tuesday this week would be the time when the government would complete its case. I felt that's been an appropriate date for quite some time and it would appear last week as well as this morning that that would be the case.
So my reason for them not being here this morning at 9:00 o'clock is that reason, first. But secondly, the then issuance, and that's what I'd file my motion on, that, one, there are evidentially additional people even beyond this list and Counsel did indicate to me this morning, Mr. Taikeff did, that possibly another government witness would possibly be called and we had a little discussion about that, he and I. But the point I'm trying to get at, Your Honor, is that, one, I think there ought to be a showing of some kind and pursuant to the Rules and then, two, that at least some type of scheduling be outlined in such a way that I don't have these employees sitting here, one, in a status where Counsel is saying they are intending to consider calling. I would hope they not be called at such time until they have made up their mind they are going to call them and, secondly, {2859} to give the government at least the opportunity, one, of such a hearing determination and then if it so determined by the Court that such individuals to be called that again we be given at least a target time so that I don't have people just sitting around for a lengthy period of time because I don't control when and if counsel of the defendant is going to put any given witness of theirs on the stand.
That leads then to what Counsel and I, Mr. Taikeff and I discussed for a moment this morning. I think it puts it ultimately in the posture, Counsel is requesting, or at least thinks at this time they may well, if I misstate in any way, Elliot, certainly correct me, that possibly the Director of the FBI, Mr. Kelly, is one whom possibly that they are going to call. I would hope that we would follow the procedure then that Mr. Taikeff has indicated and that my posture would be only at this time that I would make the inquiry and I would want the record to show I'm going to resist it certainly. But I would make the inquiry as to an available time so that with a witness of this kind that we would not be in the posture that, on 24 hours notice that he would have to appear and we have complications of which Mr. Lowe and I are familiar, at least, that did happen on a previous occasion.
That's the reason for my motion. and because I did receive the letter on Thursday night that indicated these {2860} people were to be available for Monday, morning and I wanted the Court on record as to my resistance and the basis for my resistance as well as the procedure that I believe ought to be followed in each and every instance. I wanted the Court to be on notice of this as early as possible.
MR. TAIKEFF:  Your Honor, with respect to the possible appearance of Mr. Kelly. I approached Mr. Hultman and told him that at this time based on our evaluation over the weekend where we spent a lot of time working on our order of proof, I indicated that there was about a 50 percent chance Mr. Kelly's presence would be required. Realizing he was both an important public figure and a busy person, I thought that it would be appropriate if Mr. Hultman found out whether there were any particular problem dates within the next week and have him report back to us so that he could work around those particular problems, whether they be personal or professional. I also told him that we would be going to Your Honor in an ex parte fashion, making an offer of proof and otherwise substantiating our need for a Subpoena and if Your Honor, granted the subpoena we would see to it voluntarily that Mr. Hultman was notified that the subpoena be issued so that he would then have an opportunity to come before Your Honor and move to quash the subpoena. I trust that that would involve a sufficient number of safeguards and considerations for Mr. Kelly's schedule so there {2861} would not be any undue or unnecessary inconvenience.
I trust that Mr. Hultman finds that proposed arrangement agreeable.
As to the letter that is in exhibit attached to the government's motion, or, rather, is designated the appendage, I would like to say these things:  I think Mr. Hultman is quite correct in taking it upon himself to see to it that the proposed witnesses not be here today knowing that his case is going to continue through the day and possibly into tomorrow and we certainly have no quarrel with him for making that decision. It seems to be a sensible one
{2862}
When this letter was prepared and given to him on Thursday, we were two days beyond the day, or perhaps only one day beyond the day when the Government had originally predicted about a week earlier that its case would end, and we know that the Government could not control in any way exactly how long its case would take.
So when the letter was given on Thursday, it was with the expectation that the end of the case was going to occur very shortly, possibly even Friday, and, that's why Monday was selected.
Our concern, your Honor, is that once we assume the burden of presenting evidence, we, like the Government in the three weeks before us, has the burden of keeping the case going continuously from 9:00 in the morning until 5:00 in the evening except for the usual recesses. We don't want to be in the position where we have to say to your Honor, "We have run out of witnesses," and so we must do what in a business sense might be considered an inefficiency, but given the obligation of going forward and keeping the proceedings going, a necessity -- and that is to keep a backlog of witnesses in the witness room.
Now, I am sure the Government will concede that it subpoenaed virtually all of its witnesses to appear on March 14th, the day the trial began; and many of them are either still here today, they have not testified or at {2863} least into last week were still waiting to testify, and in many instances were never called to testify. Now, each of those witnesses, if a non-Governmental employee, gets $20.00 a day witness fee and $16.00 a day for expenses -- and I don't think anybody would criticize the Government for doing what they did because you have to make decisions as the trial unfolds. Sometimes you add witnesses, sometimes you delete witnesses. You have to be sure that the Judge doesn't say, "You have just rested your case by running out of witnesses at 2:30 in the afternoon." We are intending to do, but on a smaller scale, what the Government has done and what every lawyer has to do who has the burden of going forward. That was the purpose of the request of March 31st. I had it on my list of matters to call to your Honor's attention the fact that I think it would be appropriate if the Government rests today, that the FBI Agents and other Government employees -- I notice just one such person on the list, Marvin A. Stoldt -- be available as of 9:00 o'clock Wednesday morning. If the Government rests in the middle of the day tomorrow, then I think the middle of the day on Wednesday would be sufficient; but quite frankly, we feel we should have between five and ten witnesses backlogged so that we never run out of witnesses.
If the Government is concerned that the FBI Agents {2864} will be wasting their time sitting around on the second floor, we would be perfectly happy for them not to be here and appear to be wasting time; but we would then like the privilege of running out of witnesses and not being punished for it in any way and being able to call the witnesses in the sequence we think will be most understandable and most appropriate in the eyes of the fact finders.
Now, I think our need and right to do that is incompatible with the Agents sitting around and twiddling their thumbs for a day or two. We are willing to agree to any arrangement as long as we are not punished for running out of witnesses and as long as we have the right to call our witnesses in the sequence in which we contend they should be called.
THE COURT:  Are we ready for the jury?
MR. TAIKEFF:  Yes, your Honor.
MR. HULTMAN:  Plaintiff is ready, your Honor.
(Whereupon, at 10:09 o'clock, a.m., the jury returned to the courtroom, and the following further proceedings were had in the presence and hearing of the jury:)
THE COURT:  It was reported to me this morning that the jurors had been sitting in a cold draft last week. I suppose the only consolation you can get from the delay {2865} that was incurred this morning -- and a necessary delay, by the way -- is that you were not sitting in the cold draft while you were waiting.
I do also, however, want to assure you that I have taken it up with the GSA; and we will make arrangements to see that somehow or other this cold draft is eliminated. The results of that may not show up until tomorrow, but it is going to be done. Counsel may proceed.