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

SA HUGHES CROSS EXAM
SA HUGHES REDIRECT B

CROSS EXAMINATION
By MR. TAIKEFF:
Q  Agent Hughes, am I correct that you were designated the case Agent in connection with the investigation of the deaths on June 26, 1975?
A  That's correct.
Q  Could you briefly tell the Court and jury what it means an Agent is designated the case Agent?
A  Well, on the normal case it means that you are in charge of the investigation which it didn't mean that necessarily in this particular case.
Q  All right. Tell us first about the normal situation. The n we can explore the special circumstances here.
A  Well, the normal case, you are assigned on a matter to investigate and you investigate it, but something of this magnitude obviously it takes more people.
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Q  If, though, a case is such that additional efforts are necessary either in the city where the investigation is going on or some other city, a case agent can call upon other members of the FBI to assist, can he not?
A  That's correct.
Q  Now, this of course was a case of very special magnitude, was it not?
A  That's correct.
Q  And there were people of high-ranking positions in the FBI participating in this investigation?
A  That's right.
Q  And so your designation as case agent didn't have all of the meanings that it had in the usual situation, which means to say that you were not one hundred per cent in charge of what was going on that case?
A  That's correct.
Q  Did you, though, nevertheless take some supervisory or oversight position with respect to the investigation at least in its initial stages?
A  No. I wouldn't say that's true in this particular case.
Q  Did you read the 302's of any other agents? I'm particularly interested in the first five days, and would ask you to focus your attention on that period unless I designate otherwise.
A  No. Not in the first five days. Somewhat later I did to work out leads for who to investigate.
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But to the best of my knowledge I didn't review any 302's for some time, some period of time.
Q  Could you give us the date or an estimate of the date when you first began the process of reviewing the accumulated 302's?
A  Well, it would be quite a bit later because we didn't have a need to. We had conferences to go after these leads for quite a while.
Q  Tell us briefly about these conferences again. I'm focusing on the first five days.
A  Well, to the best of my recollection there was an all agent conference generally every morning, and you attended if you weren't tied up doing something else.
Q  When you say "an all agent conference" I assume you mean all agents working on any aspect of this case?
A  Yes. If you could be available you attended this conference every morning.
Q  Were there afternoon or evening conferences of a similar nature?
A  I don't recall any conferences except in the mornings. That was a lead-type conference to work out leads.
Q  That was a time when everything that had come to the attention of those who were supervising was disseminated to the other people so that everyone would have as comprehensive a picture of what had been developed up to that point as possible?
A  That was one of the basic ideas, yes.
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Q  Now, were there meetings between smaller groups than, let us say, all the agents? A half dozen agents or key agents in the investigation?
A  No. I think these were all handled through the basic conference in the morning, or not that I'm aware of anyway.
Q  Were there any agents that you would designate as being particularly involved in this investigation as compared with other agents?
A  Well, possibly the agents that worked that reservation were because we were more familiar than outside agents that were sent in there.
At least for a while to help them find their way around, that sort of thing.
Q  Will you name those people for us, please.
A  Well, they would be the agents assigned to Rapid City at that time. That would Agent Price, Agent Adams, Agent Coward, Skelly, McCarty. We had twelve guys, I think it was, assigned to Rapid City. Those twelve agents.
Q  You haven't named twelve, but I want to ask you about two more in particular. Does that including Waring?
A  Well, Waring wasn't assigned to Rapid City at that time. He was in a, he was one of some agents that had been sent in to help us out in work schedule.
Q  On a full-time basis, though? not just for this case?
A  No, not for this case He had been sent in prior to that.
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Q  Was he one of those people who might be called a key agent?
A  No. As I recall he was just happen to be down there that day.
Q  How about in the week or so that followed, did he play a major role?
A  I'm not familiar with what role he played.
Q  How about yourself, would you include yourself amongst the list of those who were especially involved?
A  Well, yeah. Because again I was familiar with the area and agents coming in, or are at quite a disadvantage that are not.
Q  Now, there were other law enforcement agencies involved at one stage or another of the investigation. Again I'm confining myself to the first week, let's say, just to narrow down the scope of my inquiry.
Would you say that's a fair statement that there were other law enforcement agencies involved.
A  In the investigation?
Q  Well, beginning at, let's say, 12:00 noon, June 26, 1975 and continuing for one week?
A  Yeah. There were probably other agencies involved.
Q  That would be the BIA police?
A  They would be in a helping status of some kind, yeah.
Q  The state police in South Dakota, or highway patrol, whichever name it's known by?
{2913}
A  Yeah. They were there that day.
Q  What mechanism was set up for someone in the FBI to collect and/or review their police report if they wrote any concerning this case, or the events of June 26?
A  Well, to the best of my recollection the only way we knew what involvement a particular agency had is to interview one of their officers if he happened to be there that day. That's the only thing I'm aware of.
Q  And if that person had written a report would that report be turned over to you so that it could be either copied or quoted verbatim in a 302?
A  Not necessarily. He would be interviewed, an individual, an officer who was there that day. If we knew he was there we would interview him to get our information from that interview.
Q  Now, as far as you know and except and for kinds of notes that were made in connection with finding things, such as you refer to in your direct testimony, was there any note taking by the agents who were involved in the activities on the afternoon of June 26, 1975?
A  There possibly was. I didn't observe agents taking notes or what they were doing.
Q  Do you have any personal knowledge of the existence of notes other than the kind that are referred to before with respect to objects found on the ground?
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A  Not that I recall.
Q  Now, as a general proposition a 302 is a document which is official in nature, is it not?
A  It's, yes, I would say that's an official document.
Q  And it's a place where an agent who participated in some official activity or conducted an interview or made an investigation or made a surveillance records the details of his activities?
A  That's correct.
Q  And if he had spoken with someone records to the extent that he thinks appropriate what that person said?
A  That's correct.
Q  I assume, and tell me if my assumption is correct, that very agent makes an effort to be as complete and as accurate as possible?
A  You try and put down what is significant to you at that time. And maybe something might turn up later that is significant that you don't have down there when you find out additional details.
But at that time to the best of your knowledge you put down what you deem to be significant when you are writing the 302.
Q  All right. And as to the writing down process an effort is made to see to it that it's accurate because of the official nature and function of the 302; isn't that correct?
{2915}
A  That's correct.
Q  As a general rule is it not the practice to write or indicate as the case may be a 302 as quickly as is reasonably possible so as to have the best possible memory of all the details?
A  You try and get it dictated within a reasonable time after the activity.
Q  Now, would you say that an agent who had participated in a lengthy complicated field activity and who did not make notes should attempt, if it were possible, to dictate whatever he remember of his events as quickly as possible, particularly because of the duration of the activity and the fact that he had not made notes?
A  If the circumstances are such that an agent can, or steno available, you can try and dictate, yeah. I would want to.
Q  And is it fair to say that you would do that because of the complexity of a long activity that may have lasted hours, and the fact that you didn't have notes, assuming both of those factors were present in a particular situation?
A  Yeah. You would dictate as soon as circumstances permitted you to dictate.
Q  Now, sir, in connection with whatever official activities you performed during the first week, beginning with 12:00 noon, June 26, 1975, did you discover the presence or possible presence of a woman by the name of Myrtle Poor Bear? And when {2916} I say "presence" I mean presence of the Jumping Bull Compound.
A  No. I don't recall seeing her that day.
Q  Now, besides not seeing her personally I'm referring to what you learned in your official role, in your official capacity as an agent of the Federal Bureau of Investigation during the first week.
A  If you are referring to Myrtle Poor Bear.
Q  Yes. I'm only talking about the first week now.
A  The first week?
Q  Starting at 12:00 noon June 26, 1975 and going for seven full days after that.
A  Whether I had any knowledge of Myrtle Poor Bear within the first week of this investigation?
Q  The answer to your question is yes, providing you understand that --
A  Well, why don't you repeat the question, please. I'm not sure of your question. Would you repeat it, please.
Q  Okay. I'll lay a foundation and then I'll put a question to you.
You participated on a full-time basis in the investigation beginning sometime on the 26th. There were conferences, you referred to them as all agent conferences. And as far as you can recall that was every morning, at least for the first few days. That was a time when agents were brought up to date and leads, things that had been found, et cetera. Am I correct so far?
{2917}
A  Yes.
Q  As a general description, but not necessarily an exclusive description of what you did?
Q  Yes.
Q  Okay. Now, within the framework of what I've just described to you and based upon your official participation in this official investigation did you, during the seven day period, starting 12:00 noon, June 26, 1975 learn or hear of the possible presence at the Jumping Bull Compound of one Myrtle Poor Bear?
A  I don't recall when her name come up. I'm familiar with the person you're talking about. I don't recall what date her name came up.
Q  Now, at some point in time she became an FBI informant; is that not correct?
A  To the best of my knowledge she gave information, yes.
Q  Were you the agent who had direct personal contact with her in connection with that informant status, and it's my word, I'm not attributing the word informant to you.
A  No. I'm not the agent that was contacting her.
I had seen her, been with her, but I wasn't the agent contacting her.
Q  Was that Agent Skelly?
A  Not to my knowledge. He might have interviewed her, but {2918} not to my knowledge.
Q  I show you Defendant's Exhibit 158 for identification which is a photograph of a person, and I ask you whether you recognize the person depicted in that copy of that photograph?
A  Well, it's not a photograph you could make a positive identification, but it's similar to the person I know as Myrtle Poor Bear.
Q  All right.
A  I couldn't say that that's her.
Q  But you would not declare that it is not she, would you?
A  No, I couldn't say that either.
Q  I believe in your direct testimony you informed us that as of now you have four years of experience on the reservation.
A  Well, counting from March 30, 1973, I think that's a little short. Well, it is actually, approximately four years.
Q  Okay. I want to ask you certain questions about your observations and experiences and in particular I'm talking about the period beginning March of 1973 and ending in June of 1975, a period of a little more than two years. Do you understand that?
A  Yes.
Q  Could you briefly describe, based on your own observations, the quality of life on the reservation with respect to the incidence of violence?
A  Well, there's been a great deal of violent crimes on the {2919} reservation while I've been there.
Q  And would you say that it's fair to summarize in this way:  That it involves at times beatings, shootings, knifings and assaults generally?
A  That would be a fair statement.
Q  Now, just tell us whether or not you've heard the word "goons" as pertains to the subject of the reservation generally?
A  There's a group called goons on the reservation, or there were anyway.
Q  And when you use the past tense I assume that does not include the period I mentioned to you? That they no longer existed?
A  Well, I haven't been down there for some time, but the word goon come into prevalence during and immediately after the occupation of Wounded Knee in 1973 when there were two groups, two divergent groups, the American Indian group and the goon group. So they referred to each other as an AIMer or a gooner, or something to that effect.
Q  And they were not terribly happy with each other?
A  No.
Q  And in fact within some families there was strong dissention and many families had rather substantial arguments over whether they supported the goons or the American Indian Movement?
A  That happened, yes.
Q  Is it accurate to say that in connection with this investi-{2920}gation and any arrests that have ever been made or any prosecutions that have ever been brought that a person by the name of LeRoy Kosatos was never charged or prosecuted for the murders which are alleged in this indictment?
A  To the best of my knowledge Kosatos has never been charged with murder of the agents, no.
Q  Now, in connection with your work as an agent you at least at the very beginning received some firearms training, is that correct?
A  That's correct.
Q  And without going into the specific details, it's accurate to say I assume that you learned how to use a variety of weapons?
A  That's correct.
Q  And is it also accurate to say that from time to time since your initial training you received in-service training, further training or refresher training in connection with the use of weapons?
A  That's correct.
Q  And although you may or may not be a firearms expert this is generally the kind and quality of training that all agents of the Federal Bureau of Investigation get, how to use weapons, how to recognize them and have at least some familiarity with them?
A  That's correct.
{2921}
Q  Would you say then that based on your training, which I understand from your testimony to be rather standardized, you know when it is advisable and best to employ a shot gun as opposed to a pistol or rifle?
A  I have, I would have situations where I would rather have a shotgun and other situations where I would rather have a pistol or a rifle as I understand your statement, yes.
Q  So what you are really saying is that there is some basis for differentiating when to use a particular weapon and when to use another kind of weapon, and that's part of your training and understanding as a law enforcement officer?
A  That's correct.
Q  All right. Now, specifically with respect to a shotgun, is there an outer limit beyond which it doesn't make very good sense to use a shotgun?
A  Yes, there is.
Q  Could you tell us what that range is.
A  Well, a shotgun is a particular type weapon, it uses many different type loads, so it would have to depend on what you're shooting in a shotgun.
Q  As a general rule law enforcement agents don't use the full range of shot that may be available in commercially loaded shot gun shells; isn't that correct?
A  Well, as a general rule --
Q  You don't use bird shot, do you?
{2922}
A  You don't use shot, no.
Q  You use, well, why don't you tell us what are the several categories of loads that might be employed by a law enforcement officer, FBI agents if you will.
A  Double odd buck, or a rifle slug, or a rifle slug would be a single piece of lead that has the rifling on it, such as would be inside the barrel of a rifle, and that can be fired as an ordinary bullet would basically.
Q  Subject to its range and its accuracy?
A  It's a heavier slug which is not comparable to a rifle for range or accuracy. But it will go farther than, say, the shot from a shotgun.
Q  Okay. What would you say the range would be for that? Not how far it could travel into the air, but the effective range using the weapon as a weapon rather than as a contest of how far you can project something?
A  Accurately, well --
Q  Within reasonable accuracy, not precise accuracy. So that you would choose to use the shotgun under such circumstances.
*A  Well, I would personally not use a shotgun if I had a choice. Except for using double odd buck which is only good for about forty yards.
Q  Forty yards. How about that single rifled slug?
A  That's good for a longer range, but I personally wouldn't choose that type of slug.
{2923}
Q  Because of inaccuracy?
A  Well, you don't, if you are going to shoot that far you're better off to have a rifle than a shotgun.
Q  Okay. But let's suppose that you had a rifle slug in a shotgun and you were going to use it under circumstances where you were defending yourself as a law enforcement officer. What would you say would be the maximum outer range for which such a shot would be worthwhile or reasonably accurate?
A  Well, I could only estimate. I would say shooting where you might have any change of hitting something, seventy-five to a hundred yards. That would be just an estimate on my part.
{2924}
Q  I understand, sir.
If you'd be kind enough to turn your attention to the chart, I want to make sure that we understand your testimony. This scale is in feet and the chart shows the location of Coler's car at a point which is designated with those words on the chart. You said not more than 100 yards for a rifle slug, is that correct?
A  Yes.
Q  That would be 300 feet, would it not?
A  For where your finger is?
Q  Well, Coler's car. I put the zero on Coler's car, right?
A  Yes.
Q  That's 300, right?
A  Yes.
Q  So if you had a rifle slug, the effective distance would be not more than up to the first curved line within the oval which is the Jumping Bull compound? I say it that way so the record will reflect what you and I supposedly can see. Is that a fair description?
A  If that's 100 yards, that's what I'm estimating.
Q  I understand.
Do you quarrel with me that that point shows 300 at that curved line?
A  Yes. It shows 300.
Q  Okay. And that the distance up to the houses is at least {2925} twice that distance, that number being 600?
A  Yes.
Q  And you say that if the gun were loaded, if the shotgun shell were loaded with buckshot which means ball bearing, maybe four or five of them in a load?
A  No. That's not correct.
Q  How many?
A  I believe there is nine pellets in a buckshot load.
Q  Nine of those ball bearings. You didn't think that would go or be effective beyond forty yards which would be 120 feet, is that correct?
A  That would be an estimate on my part.
Q  Would you say that not more than half the distance between Coler's car and the first curved line in the oval would be the effective range, not more than half the distance? I call your attention to the fact that half the distance is 150 feet or 50 yards. Is that a fair estimate?
A  I'll go along with that.
Q  Can you tell us again what your location was when you heard the first transmission on the radio on June 26th that told you something was going on and your presence was required?
A  I estimated I was somewhere between about halfway between Oelrichs and Hot Springs, somewhere in that vicinity.
Q  Now if I may have a moment, Your Honor, to look at the larger map.
{2926}
THE COURT:  You may.
Q  (By Mr. Taikeff) Oelrichs is north or south of Hot Springs?
A  I can pinpoint it on the map. I'm not positive about the direction.
Q  The reason I ask, it's not designated. By looking at the map could you locate it?
I call your attention to the fact that that circle is designated Hot Springs.
A  Oelrichs is at this junction right there (indicating).
Q  So then it's closer to the reservation than Hot Springs and it is southeast of Hot Springs?
A  That's right.
Q  How long did it take you to get to the Jumping Bull compound?
A  From where?
Q  From where you were when you first heard the transmission?
A  I arrived at the Jumping Bull compound at about 1:00 P.M. and I heard the transmission at approximately, I believe, I'm not too sure at this time, 11:40 when I was heading towards Hot Springs.
Q  Could have been later?
A  Could have been. I'm not positive about the time.
Q  If I suggested to you that may have been 11:50 or 11:55, would you quarrel with that statement?
{2927}
A  I couldn't say one way or another. I estimated it 11:40.
Q  But I did ask you a specific question and that is whether you would quarrel, whether you would take exception to an assertion that it was 11:50 or possibly even 11:55?
A  Well, that's a possibility.
Q  Now you had to make a stop enroute, did you not?
A  I had to get rid of my prisoner.
Q  How much time would you say that took up of the hour or more it took you to get where you were going?
A  From when I heard the statement to Hot Springs?
Q  Well, let me go back a step to eliminate any confusion, including in my own mind if there is any. You estimated that it may have been as early as 11:40?
A  That's correct.
Q  When you heard the first transmission, and that's when you got going to get finally to the Jumping Bull compound. So far am I correct?
A  Yes.
Q  And you had a prisoner whom you had to lodge some place so you stopped to take care of that piece of business?
A  Yes.
Q  And you got there at about 1:00 o'clock?
A  That's correct.
Q  So if you heard the first transmission at 11:40, you got {2928} there about an hour and 20 minutes later, correct?
A  That's correct.
Q  If you heard it later, then it took a little less to get there, correct?
A  Uh-huh.
Q  How long did the lodging of the prisoner take out of what may have been an hour and 20 minutes or may have been an hour and 15 minutes or something less than that?
A  I don't know how long it took. I had to do it myself because there was no one there so there was a slight delay there. I don't know how long it took.
Q  Other than when you were coming to a halt to dislodge your prisoner and took the prisoner to some facility, is it fair to say you were driving at a high rate of speed?
A  As fast as I could.
Q  Under the road conditions?
A  Under the circumstances.
Q  Now if you were traveling to the reservation, the area of the Jumping Bull compound from Rapid City, would you come in over the same roads that you used in getting to Jumping Bull's?
A  Not necessarily.
Q  Based on your own knowledge of the area and your own experiences what's the least time you think you could make it from Rapid City to Jumping Bull's compound, no traffic, no ice, snow or water on the ground, just you and the car driving as {2929} fast as you can?
A  I wouldn't have an idea. Whatever the road conditions would permit and how fast you would drive and stay on the road and depending on how many measured miles it is.
Q  Do you know how many miles it is?
A  I think from Hot Springs to Rapid it's 50 miles, roughly 50 and from, however far it is from there to Oglala, I'm not positive about that, the mileage from Hot Springs to Oglala. It might be 40 miles, somewhere in that area.
Q  Would you say that from Rapid City to Jumping Bull is somewhere between 100 and 120 miles distance by the shortest route?
A  That way I'd say it's about what you said. There's another way to go. I don't know if that's shorter or not. We often use that way to go to Pine Ridge. I'm not sure of the mileage.
Q  By the way, the location of the FBI office in Rapid City is on the north side of the city of Rapid City, is it not?
A  That general part of town; yes. The federal building you're speaking of?
Q  That's where your office is located?
A  That's correct.
Q  And the reservation is south of Rapid City, is it not?
A  That's generally correct.
Q  Is there any highway, peripheral highway that goes around {2930} the city or if you're up north and wanting to go South, do you have to go through the city?
A  I believe you have to go through the city.
Q  Now I believe that when you testified on direct examination you told us about certain activity in this area and when I say "this," I refer to the general area which is marked "Z1." You see tile "Z1"?
A  That's correct.
Q  Let me make sure that I understood what you testified to in connection with that particular location. There came a time when a certain number of law enforcement official's went to "Z1," or the vicinity of "Z1" in some effort to see what they could do in connection with the green house, is that a fair summary?
A  That's correct.
Q  And for one reason or another they came back to where you and other law enforcement officials were because there was shooting or something of that sort. Did I follow you correctly in that regard?
A  Well, no. Not really. Could you summarize that. Summarize that. I think I may have not heard you accurately.
A  We regrouped in the area, "Z1". Well that's where we ended up. When we circled in the creek we went to "Z1," heard shooting from the area of the green house and that's when myself and {2931} another officer and some other officers with us formed a line. We were going to advance toward the green house with the idea in mind of announcing at the green house our presence and trying to get an idea where the agents were. That's when an individual ran from the green house and snapped a shot at me which curtailed our advance.
Q  Now did you then go back into the woods some distance?
A  Yes, we did. For cover.
Q  And was there a time shortly or immediately thereafter that one or more people were sent out again to "Z1"?
A  I wouldn't know. I don't recall. I don't recall that. Well, now, wait a minute. Later on I sent people back to the general area. It was a little to the left of "Z1" to the best of my knowledge. I wasn't there with them.
Q  Could you tell us the names of those people?
A  Now what I'm referring to as the final assault on the house?
Q  Yes. Apparently there was what I might call an advanced party that was sent up to the area of "Z1" to differentiate them from the entire group. Can you tell us the names of those people?
A  You have to tell me what time you're referring to and in what regard this advanced part, if you will, please.
Q  Were there several occasions?
A  Well, what I'm referring to so I don't get you or I {2932} confused, is upon the assault on the green house a group of law enforcement people that come into help us and some agents went to the area "Z1" a little bit to the left of "Z1" to my knowledge. I wasn't there with them. We assaulted the houses in a combined effort. I was somewhere else. They were there and we assaulted the houses.
Q  And those people, can you identify them that went to the vicinity of "Z1"?
A  A lot of them were law enforcement people I don't know. There were two agents that I knew with the group, Agent Price and Agent Talbert.
Q  Now I think on your direct testimony in describing the shooting from a green house you said it seemed to be coming from the green house.
A  That's what it appeared to me; yeah.
Q  Is it fair to conclude from that that your observations were based primarily on what you heard as opposed to what you saw?
A  Well, you could see puffs of smoke from around the green house and the noise came from that immediate area so that was my assumption. I didn't see people there shooting. I didn't see them actually shooting.
Q  Then I think you said in connection with that episode that you made some sort of an announcement to the people at the green house and this resulted in firing coming from the green {2933} house and from some other location.
A  After I was shot at, we regrouped a little bit to the left, or more south of the green house and that is when I made that announcement. Firing was directed at mostly from the green house and then some other bullets come in from elsewhere. I don't know where they came from.
Q  Could you say how many?
A  Oh, I wouldn't have any idea. It wasn't a long period but there was quite a bit of firing for a short period.
Q  Could you give us any idea of the direction from which it came?
A  Most of them come from the area of the green house. The others I have no idea.
Q  I'm focusing my attention on the other shooting. Could you tell us with some degree of accuracy what quadrant it came from?
A  I wouldn't have any idea. Our trouble was coming from the green house so that's what I was focusing my attention on, that's what I was concerned --
Q  Could you tell how many people were firing those shots that came from an undetermined location?
A  I would have no idea.
Q  Could you say whether it was more than three people?
A  I would have no idea.
Q  Now amongst the cartridge cases which you found were five {2934} 30-06 caliber expended casings, am I correct?
A  I found 30-06 caliber expending cases; that's correct.
Q  I think there are five of them in the envelope. Are those the only ones that you found?
A  No.
Q  You found more?
A  Yes. I'd have to refresh my memory to find out exactly how many 30-06 cartridge casings, but to the best of my knowledge I found more than five.
Q  I see.
This is Exhibit No. 29D that was offered in evidence while you testified and it does contain five 30-06 casings, am I right?
A  Yes. It appears to.
Q  Now inside that envelope are some notes you made or photocopies of notes you made.
A  Uh-huh.
Q  Would you look at those notes and see whether in any way that helps you on the subject of whether there were more 30-06 casings.
A  No. This doesn't refresh my memory any. But I know found others and put them in bags. To the best of my recollection I found some more 30-06.
Q  Do you remember the location?
A  I found some right there in the green house and I found some {2935} more in the residence that's been identified as Wanda Sears' residence per search warrant the following day.
Q  Any others besides those you mentioned thus far today that you can recall?
A  I would have to refresh my memory by looking at my report. But I found several shells. The number I wouldn't know of any variety.
Q  Now I'm holding in my hand Government Exhibit 29A. Would you tell me whether you recognize that as a military style M1 Gerand rifle?
A  Well, I'm not, I have never -- well, maybe I have. I'm not that familiar with that rifle. It looks to me like what used to be a military rifle in World War I or II. I don't know the era.
Q  Do you know the caliber of this cartridge that this rifle shoots?
A  No, I don't. I think they shoot a 30-36, but I'm not positive.
Q  In connection with your work on the 26th, did you have contact with a BIA policeman by the name of Ecoffey?
A  There was a BIA police officer by the name of Ecoffey with me part of that day.
Q  Do you have any information concerning any shots being fired inside any of the residences?
A  I didn't observe any of that.
{2936}
Q  Does the way you phrase that answer imply you have some official knowledge of such a event?
A  I can't recall if I interviewed anyone that might have said that. That's why I phrased it that way.
Q  I see.
Now in connection with your duties as an FBI agent, is it fair to say that you, I'm speaking of you as an individual now, that you did not do anything improper or illegal in connection with your investigation, is that a fair estimation, that you did not?
A  I didn't even fire a shot that day.
Q  Now did you in the course of your investigation interview any person who had significant, and I emphasize the word significant, or purport to have significant information that you were prepared to reject out of hand because of the unreliability of that person?
A  Would you repeat that, please.
Q  Yes.
Let me give you a foundation question. I believe you interviewed somebody and after the interview noted that the person was intoxicated at the time of the interview. Do you recall one such episode?
A  Oh, that's happened numerous times over the years. But I don't recall what you're referring to.
Q  What I'm pointing to is the fact that when you interview {2937} a witness, a perspective witness or someone who has information, you make some effort, do you not, to evaluate the likelihood that this person is giving you valid information?
A  Well, sometimes if a person is obviously drunk, you might note that because through experience when people are drunk they sometimes say things that are not necessarily true.
Q  And you would be prompted as a rule to make some notation of the fact that person you interviewed was intoxicated?
A  You might. That's up to the discretion of the agent. You might, you might not, depending on how you feel it is, whether he's telling the truth or what.
Q  For instance, does looking at this document in any way refresh your recollection as to whether in connection with this investigation you had at least one such experience?
A  Yes. That indicates I interviewed an individual who gave us information. I noted he was drunk at the time. I didn't note whether I thought it was true or untrue, just made a note he was intoxicated.
THE COURT:  The Court is in recess until 1:30.
(Recess taken.)
{2938}
 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.
MR. TAIKEFF:  May we come to the side bar while this is being done so that counsel can inform the Court of something?
THE COURT:  Very well.
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF:  Your Honor, on Friday we received word from the Reservation by telephone that substantial snow had fallen and drifted on the Reservation; and it was thought that there might be some problems with people getting off the Reservation to come here.
As of early this morning we didn't have an update so the matter was not called to your Honor's attention because we thought that perhaps the condition would clear substantially over the weekend. We didn't want to say anything until we had up-to-the-minute information.
Apparently during the luncheon recess a telephone call was received from a person by the name of Jacob -- Mr. {2939} Jacob, who identified himself as a United States Marshal, Deputy Marshal in Rapid City; and he left this phone number, 605-342-6331. He wanted to inform us that the situation on the Reservation was rather severe with respect to drifted snow. Apparently they are flying food in with helicopters. The roads are impassable, and he wanted to inform us that he could not serve those subpoenas which had to be personally served. He had made arrangements for most people to come in and voluntarily pick up their subpoenas.
At this moment we don't know exactly what that means in terms of which witnesses might be here. We don't actually expect that will cause any serious problem or delay except I wanted to make it known to the Court and put it on the record at the earliest possible time so there would be no question of any failure on our part to take whatever steps were necessary to take under the circumstances.
MR. LOWE:  We have tried several times, Curly -- this is a slide which was made, your Honor may recall, while Mr. Anderson was testifying; and there are two things about it that are noteworthy, that I have talked to Mr. Hultman about.
First of all, I went to Mr Hanson, the Clerk, to see if they had a copy of it. He informed me he did not.
I found we actually had not numbered it or introduced {2940} it yet.
The second thing was that this coloring was put on through inadvertence in a water soluble pen. I am concerned with all these exhibits that they might be in any blotted by water spills. I got together with Mr. Hultman and we agreed the best thing was to take the permanent type pen and trace it. On the back I traced it in the same colors over the same lines, so that if anything happens to the front side, the back is still that way.
This is the exhibit -- it is 165, and at some appropriate point we would just want to introduce that as the same which we did with Angie Long Visitor's. I don't care whether we do it now in front of the jury or just have it on the record is sufficient, by reference.
MR. HULTMAN:  I don't have any objection.
THE COURT:  No objection. That Defendant's Exhibit 165 is received.
MR. LOWE:  Fine.
MR. HULTMAN:  Pursuant to the evidence that accompanied it at the time.
MR. LOWE:  Thank you.
(Defendant's Exhibit No. 165, having been previously duly marked for identification, so offered in evidence, was received.)
(Whereupon, at 1:35 o'clock, p.m., the jury returned {2941} to the courtroom; and the following further proceedings were had in the presence and hearing of the jury:)
MR. TAIKEFF:  Before I resume my questioning, may I have a word with Mr. Lowe?
THE COURT:  You may.
MR. TAIKEFF:  Thank you.
(Counsel confer.)
THE COURT:  I will mention to the jury that the GSA tells me they have had that vent turned off. If it is not, I wish you would let me know.
MR. TAIKEFF:  May I proceed, your Honor.
THE COURT:  You may proceed.
 DEAN HOWARD HUGHES
having been previously duly sworn, resumed the stand and testified further as follows:
 CROSS EXAMINATION (Cont'd.)
By MR. TAIKEFF:
Q  I think at the point where the luncheon recess was taken, I was asking you generally about the care with which you conduct your investigations, and you recall there was some questioning about encountering a prospective witness or informant who might be intoxicated, that you would record that fact so that in the future you would have some notation as to potential reliability of that information. Do you recall that we were at that point?
A  That's correct.
{2942}
@Q  O.k. Now, in connection with this investigation you indicated two people who claimed that Jimmy Eagle admitted being involved in the death or deaths of the agents, did you not?
A  I interviewed that I recall a couple of people that indicated Eagle related to them he had some responsibility in the deaths. In other words, he told them the story that he had some responsibility for the deaths.
Q  Now, when you interviewed those people, did either of them appear to be intoxicated?
A  No.
Q  Did either of them appear to be to you unreliable in such a way that you should not take any action based on what they told you?
A  Well, could you tell me what people you are referring to so I would be more correct?
Q  Yes. I would be happy to do that. Someone by the name of Melvin White Wing and someone by the name of Marion Highbow.
A  Yes, I remember interviewing those two individuals.
Q  Was there anything about your interview with those individuals that then and there would indicate to you serious questions about their reliability?
A  Well, I would have to refresh my memory by looking at those particular interviews. It has been some time ago.
Q  I would be more than happy to show them to you. For the {2943} record they are 302's dated July 27, 1975 (handing).
A  And what is the question before me?
Q  The question before you is whether at the time you interviewed either or both of those individuals you had any impression that they were obviously unreliable?
A  Well, in these two particular 302's Eagle was relating to them a story, now they are relating the story back to me, so in my estimation they related back to me what Eagle related to them.
Q  O.k. In fact, as a result of these interviews and possibly other factors, the following day you arrested Jimmy Eagle, did you not?
A  He was incarcerated already. I went to the Pennington County jail and advised him that he was also under arrest for the deaths of the two FBI Agents.
Q  Well, just to clarify one point, he was in custody but not on the charge of murdering either or both of the agents?
A  It is my understanding he was in custody on another charge relating from an incident on the Pine Ridge Reservation.
Q  But not the murder of the two agents?
A  But not the murder of the two agents.
Q  So you arrested him which is a technical event because he was already in custody, but you arrested him and he was charged with the murder of the two agents, was he not?
A  That's correct.
Q  Was he ever brought to trial?
{2944}
A  No.
Q  Is it a fact that sometime in July of 1975 you interviewed a person by the name of Rooks -- (spelling) R-o-ok-s -- and obtained from him approximately 31 empty casings, caliber .303?
A  I recall interviewing Michael Rooks, I don't recall specifically what date or exactly the number of cartridges without refreshing my memory by looking at my dictated report there.
Q  All right. Putting aside the question of precision, is it fair to say that you interviewed someone by the name of Rooks from the Pine Ridge Reservation, from whom you obtained a certain number of .303 casings?
A  I don't recall if it was .303 casings right now. I believe it was, but I am not positive without refreshing my memory.
Q  All right. I will see if in a moment I can get you that document; and in the meantime I will go on to something else.
Now, I believe you testified on direct examination that you may have been present and possibly even observing when other agents searched the area around Coler's car?
A  That's correct.
Q  And how long did that examination or search take, as you recall it?
A  I don't really know. It took almost until dark. I was taking pictures and run out of light to take pictures with.
Q  Can you tell us anything about the number of empty casings {2945} found in the area around the car?
A  The agents doing the search did find some casings around the car. I would have to again, to be positive about it, look at the report which my name is on, detailing that search.
Q  I am not trying to corner you about any matter of precision. I want you to relax in that regard. I am only trying to find out the approximate size of the find, three, five, seven and nine are in the same category. I want to know whether there was a relatively small number of casings found or whether it was a substantial number, or how you would describe it?
MR. HULTMAN:  Well, your Honor, I would object. By the foundation that has been laid thus far, the witness has indicated that he cannot, but that he could refresh his recollection specifically from the report that was filed and evidently is in the possession of counsel; and I would have no objection to him refreshing his recollection and stating specifically what was found, but I do object to any further questions just in generalities because I believe he has already indicated in response that he has no such independent recollection.
THE COURT:  Sustained.
Q  (By Mr. Taikeff) I show you Defendant's Exhibit 173 for identification, and ask whether that is the 302 which covers the activity that I just questioned you about?
A  Yes. This is the report on that particular examination.
{2946}
Q  All right. Would you look at that report, and then after you have a chance to look at it, tell us whether it refreshes your memory, not whether you believe the accuracy of what it says but whether it independently refreshes your recollection so that you can tell us something on the subject from your own memory, not from looking at the piece of paper and repeating what you saw on the piece of paper?
A  And your question is the total number of expended rounds in the immediate area of the car?
Q  That's correct, but before you tell us that I would like for you to tell us whether you now are functioning on refreshed recollection or whether you are merely accepting what the piece of paper says?
A  Well, I recall the examination that the agents made. I was watching it and taking photographs.
Q  Yes.
A  But I don't recall specifically how many cartridges they picked up, how many cartridge cases.
Q  All right. Look at that report and see if that refreshes your recollection as a first step.
A  (Examining).
{2947}
Q  I'm sorry, sir, have you finished looking at the report?
A  Yes.
Q  All right. Now, my first question is:  Does looking at the report refresh your recollection of what you observed that day?
A  It refreshes it to some extent, It's a very detailed examination on the car.
Q  The inside and the outside of the car?
A  No. Just the outside.
Q  Doesn't refer in any way to the interior of the car?
A  I didn't observe anyone doing anything with the interior of the car.
Q  How about the report, does the report refer to the interior of the car?
A  Not to my knowledge, no.
I didn't see anything done with the interior of the car.
Q  The trunk was open on that car, was it not?
A  Yes.
Q  Was an examination made of the opened trunk?
A  I don't believe so, not to my knowledge,
Q  All right. What is the state of your somewhat refreshed recollection concerning the finding of expended cartridges in the area of Coler's vehicle?
A  Well, there were, from what I can remember and from refreshing {2948} my memory here, there were a total of six cartridges found in the area around the car. Not all of them were expended.
Q  How many of them were not expended?
A  I believe two. Although I'd have to go through the report again. I'm not positive about it.
Q  But speaking in terms of approximations, it's about six cartridges and you believe that two of them were not expended, so that there would be probably not more than four actually expended, right?
A  That's correct. Unless I've read the report wrong here. I don't remember exactly.
Q  And one of those was a shotgun shell, wasn't it?
A  Expended or not expended?
Q  Expended.
A  Yes. There was a shotgun shell found near Coler's car.
Q  Which was expended?
A  Yes.
Q  Now, before we move on from there I want to go back a step because I think I have found the 302 which may help you. It's a 302 of July 12th. I'll show it to the Government in a moment.
Does that help you refresh your recollection about Mr. Rooks and the .303 casings?
A  Yes, it does.
Q  Now, I think I suggested to your originally that it was {2949} Mr. Rooks from the Pine Ridge Reservation, and that you received from him thirty-one .303 caliber casings. Is that a fair statement in summary form?
A  That's correct.
Q  Thank you.
Now, returning our attention to the search of the cartridges. The next thing I'd like to ask you about concerns the subject matter of certain vehicles, non-Government vehicles. You had something to do with the seizure of some vehicles, did you not?
A  The seizure of vehicles?
Q  Yes, I mean taking them into custody or removing them from the premises. Maybe I didn't use the right word when I said seizure.
A  Not to my recollection, no. Not the actual physical taking them in custody.
Q  Well, there was a red and white van that was taken to the BIA police building, wasn't there?
A  Yes.
Q  How would you describe the taking of that van? Is seizure a wrong word?
A  I'm not aware of, or positive how that van got there. I know it was impounded there because I observed it there.
&Q  Maybe impounded was the better word.
Besides the red and white van how many vehicles were {2950} impounded in the four days after the incident?
A  I couldn't accurately tell you. I don't know.
Q  Isn't it a fact that there were three?
A  I know there were three because I observed three in a compound. Whether any more or not I don't recall.
Q  And let me ask you whether the three were A, the red and white van; B, a red International pickup and C a '67 green Galaxie sedan?
A  The International was a Scout which is quite a bit different from a pickup.
Q  We'll get to that in a moment.
How about the question that I put to you about the identity of the three vehicles?
A  Would you repeat that, please, what the question is.
Q  Yes. Whether or not at least three vehicles were impounded in connection with the investigation:  red and white van, the International Scout and the '67 Galaxie sedan?
A  I'm not positive about the year, but there was a Ford vehicle there. I think '67 might be correct I'm not positive about it.
Q  All right. And the International Scout?
A  Yeah. There was an old International Scout which someone towed in there.
Q  That vehicle wasn't in operating condition, was it?
A  I believe I was told by someone that it wasn't. I never {2951} personally checked the motor or anything to my recollection. I don't think it was.
Q  Now, I would like to show you a photograph, in fact I will show you a photograph, Defendant's Exhibit 95 in evidence, and first ask you what it the scene, the location depicted in that photograph?
A  To the best of my knowledge this is the impound lot near the Pine Ridge jail where the three vehicles were impounded.
Q  Okay. And it does depict the, or an International Scout, does not?
A  Yes.
Q  Now, I show you Defendant's 93 in evidence and ask you whether or not as far as you can tell that's the same vehicle depicted at the Jumping Bull Compound in the general vicinity of that "Y" intersection, general vicinity? I'm not asking you to pinpoint it exactly.
A  It looks like it could be. As far as I know it could be.
Q  Well, the colors seem to be slightly different in the two photographs; isn't that correct?
A  There's a different shade of color, yeah.
Q  But take a look at the bullet holes in the windshields, or the windshield depicted in each photograph. Aren't those --
MR. HULTMAN:  Your Honor, I'm going to object at this time because assertion by counsel to some things that are not in the record; and secondly it's been established by foundation {2952} that this witness, one, is not that familiar with the exhibit that he's now being asked to testify to, and any response would be purely speculative on his part.
MR. TAIKEFF:  Your Honor, I would like to know if I in fact referred to anything which is not in the record. Perhaps Mr. Hultman is referring to the bullet holes.
MR. HULTMAN:  That is correct.
MR. TAIKEFF:  But, Your Honor, the photographs are in evidence and as such --
MR. HULTMAN:  There's no evidence in the record, Your Honor, that there's bullet holes in anything, and I go back and renew my objection at this time.
MR. TAIKEFF:  I stand corrected. I appreciate Mr. Hultman's observation.
Q  (By Mr. Taikeff) Do you see any bullet holes --
MR. HULTMAN:  Well, now again, Your Honor, I object for all of the reasons. It's obvious that no one can look at a photo that they're not familiar with of the scene and tell whether that it is a bullet hole or not. It might be a rock that's gone through the windshield.
Now, if counsel wishes to present evidence that he's now putting in the record by a competent witness who can competently testify, I will have no objection. But again I renew my objection, one, on the grounds that it's matters not part of the record, and two, for the grounds that the foundation {2953} has been laid. This witness is not competent to respond to anything different than what he already has.
MR. TAIKEFF:  I withdraw my question and I ask Your Honor's permission to pass the photograph amongst the jurors before I proceed.
THE COURT:  Denied.
Q  (By Mr. Taikeff) Are you able to tell us, based on your experience as a law enforcement officer, whether or not in your opinion those are bullet holes in the windshields?
A  Well, the possibility definitely exists that those are bullet holes.
Q  Well, whether they're bullet holes or not in the two photographs, are they not in the exact same position?
MR. HULTMAN:  Your Honor, again I renew my objection, and if counsel has evidence that they are bullet holes then I probably won't have any objection to it at this time.
MR. TAIKEFF:  I'm not characterizing them as bullet holes. I said whatever kind of holes they may be.
Q  (By Mr. Taikeff) Are they not in the exact same position in both photographs taken at two different locations?
MR. HULTMAN:  Well, Your Honor, again I have no objection at all if counsel is indicating, and he has evidence that the two vehicles are one and the same. The Government has no objection to that.
All I'm objecting to is asking this witness to testify {2954} to something of which the foundation he doesn't have the capability of.
THE COURT:  Questions to this witness based on his lack of knowledge have no probative value. The question which counsel is attempting to bring out is a matter for argument to the jury when the case is finally argued.
MR. TAIKEFF:  Your Honor, then I will withdraw that question and ask another to lay a foundation concerning this witness's personal knowledge.
THE COURT:  Very well.
Q  (By Mr. Taikeff) Did you not have some contact in your official capacity with the three vehicles which you referred to before as being three vehicles which you thought were impounded?
A  I didn't personally work with these vehicles. I stood by while the defense team, whatever, photographed and examined these vehicles.
Q  And did you have occasion to see the vehicles which were being photographed by one of the defense lawyers?
A  That's correct.
Q  And I ask you whether the vehicle or the object depicted in Defendant's Exhibit 95 is not the very object which was being photographed by the defense attorney in the BIA lot?
A  It looks similar to me.
Q  And did you see that it had bullet holes or holes in the {2955} windshield when you saw the vehicle in the lot?
A  Yeah. I recall some holes in a windshield.
Q  And now based on your observations made at the BIA lot I ask you to look at the photograph which is 93 in evidence, not the one taken at the BIA lot, examine it, examine 95 if you need to, rely upon your memory and tell us whether the vehicle depicted in 93 in evidence is the same vehicle as far as you can tell?
A  To the best of my knowledge the possibility exists that it's the same vehicle. Whether it is the same vehicle, I don't know.
Q  Okay. Now, do you know who arranged or ordered that these three vehicles be taken to the BIA lot?
A  No, I have no idea.
Q  Do you know why these three vehicles were taken to the BIA lot?
A  Subsequent investigation showed that at least two of these vehicles were possibly instrumental in this particular matter.
Q  Might I venture a guess and say that the two vehicles you were just thinking of were the the '67 Galaxie and the red and white van, but not the International?
A  That's correct.
Q  Well, then how come the International got taken to the BIA lockup?
A  I didn't have anything to do with why it was taken in. I {2956} have no knowledge of why it was taken in.
*Q  Now, sir, would you say that a pickup or a pickup truck is a vehicle that has a cargo carrying capacity that is open in the back, that the top of it is open so that things can be put in and taken out without opening any doors, windows or other such portals?
A  That's the standard way they're made, excluding additions of campers, whatever.
Q  Showing you again Defendant's Exhibit 95, does the International Scout shown in that photograph not have that kind of carrying capacity that I just described for a pickup? Yes or no.
A  It could have.
Q  Well, look at the photograph and tell us whether it does or it doesn't.
A  It looks like it's open in back.
Q  Did you have anything to do with examining the red and white van?
A  No.
Q  Now, going back for a moment to the number of expended cartridges.
I think your answer was that four may have been the maximum number of expended cartridges found in the vicinity of Coler's car, one of which was a shotgun casing; is that correct?
{2957}
MR. HULTMAN:  Well, I don't think that is a fair statement of the record, counsel, and I would object to that basis. I think he said there was a total of about six. I think that's the exact words he used. He left it indefinite.
MR. TAIKEFF:  I agree, two of which were not expended. My statement was that there were four expended, one of which was a shotgun shell.
MR. HULTMAN:  Well, if you want to use the words then with the total of about, well, then I think it would reflect what the testimony was and not specifically.
THE COURT:  He may answer.
A  What is your question, sir?
Q  (By Mr. Taikeff) The question is whether or not in the search around Coler's vehicle there were approximately four expended rounds, one of which was a shotgun casing?
A  To the best of my recollection that would be generally true.
I'm not positive about the number without completely going over that report again. It's a very detailed report.
Q  Now, sir, I show you Government Exhibit 55 which contains numerous photographs taken in and around Tent City and possibly some of them taken at another location at another time; and I'm looking at page 35 and I ask whether photograph B on that page shows the rear end of the red and white van?
A  That's possibly the red and white van. I didn't do the {2958} examination, so I'm not that familiar with that vehicle.
I observed it sitting in a lot in Pine Ridge and that's possibly it.
MR. TAIKEFF:  I'm wondering whether the Government would be willing to concede as a foundation that that photograph is of the red and white van?
MR. HULTMAN:  I don't think there's any dispute, Your Honor, and I think it's already been in effect indicated.
Q  (By Mr. Taikeff) Now, sir, I ask you whether you see any bullet holes in the back of that van?
A  Well, unless I'm missing something I don't see any holes.
Q  There are some dents?
A  Yeah.
Q  Okay Did any of the Rapid City agents, and I assume you know that I'm talking about the ten or twelve agents who were mentioned earlier, did any of those agents go to Oregon in connection with this case?
A  Go to where?
Q  Oregon, the state of Oregon.
A  Yes.
Q  Could you tell us the names?
A  Myself, and I was the only one from Rapid City that went to Oregon assigned to Rapid City.
Q  Did you play any role in connection with the extradition of Mr. Peltier from Canada?
{2959}
A  No particularly significant role that I'm aware of. I wasn't involved in working that aspect of it.
Q  So I gather then that you did not prepare any of the affidavits or other papers which were filed in Canada in connection with that case?
A  No.
Q  I think you told us on your direct examination at least once that Agent Waring had a rifle with a scope on it?
A  That's correct.
Q  Do you know what kind of rifle that was?
A  I believe it was a .308.
Q  The .308 is a fairly standard issue for FBI agents, is it not?
A  Yes, that's correct.
Q  And the scope which is mounted on it, was that also a standard item as far as you know?
A  I'm not familiar with the scope, what power it was. They can vary. I don't know what he had.
Q  Have you ever used the FBI issued 2 to 7 power, or variable power scope?
A  No. I don't believe so.
Q  Have you ever looked through a 7 power scope, telescopic sight?
A  No, I don't think I have.
{2960}
Q  Now do you know what was the total number of expended shells? Again I am not asking you for a precise number, don't expect you to be able to give us a precise number but can you give us some idea of the total number of expended shells recovered in the area of the compound, and I'm including the entire area, starting up here at the Y intersection, going around counterclockwise past the residences, down along this roadway, pass this building here which I think it is also indicated as a residence, but I think maybe Jumping Bull Hall.
MR. HULTMAN:  That's just a small house there. Jumping Bull Hall is to the north.
Q  (By Mr. Taikeff) Jumping Bull Hall. There's a small house here between the residences and the tan and red house and coming around to include the tan and red house and all the way down to Coler's car and all the way back up to the Y intersection. Within that circle, within which is the Jumping Bull compound could you tell us how many expended casings were recovered?
A  I wouldn't have any idea.
Q  Have you in the course of giving your direct testimony identified all of the casings which you found?
A  No I don't believe so. I found most of nine on the east side of the green house and those that weren't relevant I don't believe were brought into evidence to the best of my knowledge.
Q  So you're saying that there were other casings but some {2961} decision was made, not necessarily by you, that certain casings were not to be offered into evidence so you didn't testify about them, is that a fair summary of the situation?
+A  All I know is that the shells I pick up I send to the laboratory and the men there take it from there and identify those that are relevant and send them back and those are the ones introduced into evidence to the best of my knowledge.
Q  Could you tell us the relationship, if not with precision then with some qualitative word or phrase, how many did you find compared to how many were put into evidence during your direct testimony? Was it two to one, one and half to one, five to one? Again I'm not asking you for a precise answer, just so we can get some sense of the relative size.
Q  I couldn't even give an accurate answer, sir, unless I set down and counted the ones I found which are all detailed on my report and got a percentage of those that were introduced into evidence. That would be the only way I could answer that correctly.
Q  You're familiar with the weapon known as an AR15?
A  Generally familiar, yes.
Q  And did you personally discover any casings that could have been fired or were fired as the case may be from an AR15?
**A  To the best of my recollection I found some casings on the east side of the green house which could be fired from an M16 or AR15. They shoot the same shell.
{2962}
Q  And how many were there?
A  Well, there again I would have to go into my report, my details of how many I found.
Q  Would that be in your crime scene examination report?
A  That would be in the crime scene examination outside the green house where I have a long list of shells.
Q  Is it within Defendant's Exhibit 173 for identification?
A  Well, I'm talking about the green house. I'm not too clear on what you're talking about here.
Q  What I'm trying to discover from you is some information about casings which you found which were not introduced into evidence during your direct testimony. That's the general topic I'm inquiring about.
MR. TAIKEFF:  May I have this document marked for identification. Perhaps I can assist the witness in some way.
THE COURT:  It may be marked.
MR. TAIKEFF:  Thank you.
I'm going to show Counsel for the government so they know what I'm referring to.
Q  (By Mr. Taikeff) I just want to make sure that there is no confusion about the subject. Do you understand that for the last few minutes I have been making inquiry on the subject of shell casings which you found in connection with your official activities? That's the general topic.
{2963}
A  Okay.
Q  Now clearly you recall that during your direct testimony the government offered into evidence without objection by the defense a series of plastic bags which contained numerous shell casings that you found?
A  That's correct.
Q  And I believe that virtually all of them were found up on the high ground in the vicinity of one or another of the residences, am I right about that?
A  I found all my shells on the east side of the green house with the exception of some -- excuse me -- the Wanda Sears' residence.
Q  Which is where? Over on the left? The red and tan house? A Yeah. That, about right beside it there.
Q  That's on the left of the compound as we look at Exhibit 71?
A  Per search warrant I found some casings in that house, plus the shells I didn't pick up myself but which were found around Coler's vehicle.
Q  For the moment let's exclude what was found around Coler's vehicle from consideration and take into account those objects, those shell casings which were introduced into evidence on your direct testimony.
Now I think we established not quantitatively but qualitatively that you found other shell casings, right?
{2964}
A  That's correct.
Q  You collected those in a similar manner as to the methods or method used for those things which were introduced into evidence, right?
A  Would you repeat that, please, what you just said.
Q  You collected them in a manner and they were handled in a manner similar to the exhibits which are in evidence, right?
A  That's correct.
Q  And as far as you know it followed the routine of going to the lab, the lab did certain tests and then other people made a decision as to what was offered in evidence. That's not your job, is it?
A  No.
Q  So yes to my assumption and no you don't make those decisions?
A  I don't make the decisions as to what is offered in evidence.
Q  Okay.
But you are aware, are you not, from your official activities in this case that an AR15 is a subject matter of the evidence?
A  To the best of my knowledge; yes. An AR15 is relative to this case.
Q  And as far as you know there is some indication that the defendant, Mr. Peltier, was seen by one or more witnesses carrying {2965} and/or shooting an AR15, isn't that correct?
A  That's my understanding; yes.
Q  Now I understand you're not responsible for what questions are put to you because you're only the witness, you're not the lawyer. But you weren't asked any questions about any AR15 ammunition, were you?
A  When?
Q  On your direct examination.
A  I believe the question referred to M16. There is really no way to tell the difference that I know of.
Q  How would you make a choice if you decided something was M16 as to AR15?
A  I don't know how you would tell AR15 ammunition from M16 ammunition.
**Q  But you did in fact find a number of .223 caliber cartridge casings, didn't you?
A  I found some M16 or M15 cartridge casings on the east side of the green house; yes.
Q  That's up on the ridge, is it not?
A  It would be on the east side of the green house.
Q  Do you recall whether you ever wrote a 302 in which you detailed the finding of any .223 caliber casings?
A  To the best of my knowledge I wrote one 302 detailing what cartridges I picked up on the east side of the green house and listed all those I picked up. Best of my recollection that's {2966} the way it was done.
Q  Do you know what .223 is expressed in millimeters?
A  I'm not positive. The .223 shell is also called 556 I believe, although I'm not positive about it.
Q  556 millimeters or .223 inches, right?
A  I think that's the way it is; yes.
Q  Now I want to show you a document which you did not prepare. It's an FBI Washington, D.C. lab report. It's marked Defendant's Exhibit 175. It's a rather lengthy lab report from the Washington laboratory. I ask you to look at it, particularly with reference to the section that mentions your name.
A  I see the section you're referring to.
Q  Now I ask you whether or not you found seven .223 casings?
MR. HULTMAN:  Could I note what page on what report, Counsel, you are referring to?
MR. TAIKEFF:  I'd be happy to let you know, sir. It's the third page in the sequence, Your Honor, of a report dated August 5, 1975. Appears to be an official FBI document.
MR. HULTMAN:  Could I just look at it one second.
MR. TAIKEFF:  Sure.
A  Yes. This lists -- I called them here 5. or 556 caliber but that's interchangeable.
Q  We understand I think that .223 means .223 inches approximately and the other way of saying the same thing is 5.56 {2967} millimeters.
A  That's correct.
Q  Now having looked at that official FBI document, could you tell us whether or not you discovered seven .223 caliber casings?
A  Well, according to this the lab received from me or recovered by me at the scene seven .223 caliber casings. So --
Q  All right.
A  I presume that is what I recovered.
Q  You have no independent recollection of that?
A  I don't have a recollection of physically how many. I didn't count them and put a number on how many of which type I recovered.
Q  I show you, sir, a document which has been marked Defendant's Exhibits 176 for identification and ask you whether that's a 302 which you and you alone wrote?
A  Yeah. This is the 302 I wrote detailing to the best I could there at the scene under the conditions there how many cartridges I picked up. I mean what type of cartridges and lifting them. That's where I bagged the cartridges.
Q  The activities which are reflected in that report occurred on June 26th 1975, right or wrong?
A  That's correct.
Q  And you dictated that report on June 30, 1975, is that correct?
{2968}
A  That's correct.
**Q  And you said that when you looked at the copy of what appeared to be an FBI Washington, D.C. lab report you were willing to conclude up to that point, because of what you had seen, that perhaps you had found seven .223 casings, is that a fair summary of your response?
A  That's what the lab report said; yeah.
Q  Okay.
Now, sir, can you explain why the document in front of you shows that you only found two .223 casings, or they may be listed as 5.56 millimeters?
A  Well, as far as I can see this just lists on the document two .223 cartridges or five .556.
Q  Five .56 millimeter, right?
Can you offer us some insight on that subject?
A  No. The only thing I could say is at the scene either I or the lab people miscounted under the prevailing conditions, that possibly I did it. Whether the lab did it, I have no way of knowing.
**Q  Have you ever in the course of your experience as a law enforcement officer known expended cartridge casings while on way to Washington to reproduce?
A  Not to my knowledge.
Q  By the way, getting back to Defendant's Exhibit 176, except for any question that may have been raised concerning the .223 {2969} cartridges, would you say that that report, that 302, 176 for identification, is otherwise accurate?
A  Well, you do them as accurately as you can under the conditions. I had just seen a couple of my friends murdered and it was a difficult time. But to the best of my knowledge I tried to do it as accurately as I could.
{2970}
Q  I am not asking you for a guarantee that it is precise.
A  As far as I know it is accurate.
Q  And is it or has it been your testimony that without the benefit of looking at that report you could not tell us how many cartridges you found that day, and/or the calibers of the cartridges you found?
A  No, I couldn't be sure, I didn't count them per caliber.
Q  And would you say that that report, within human limits of the ability of a person to be accurate, is an accurate reflection of what you knew at the time of the events, based on notes which you had made and your own recollection?
MR. HULTMAN:  Well, I object again to the characterization. These records show earlier he indicated he made no notes.
MR. TAIKEFF:  I think he said he made no notes except notes of things he found.
A  On that day I did the crime scene as quickly as I could because it was getting dark. Before it got dark we wanted to get the crime scene done, so what I was doing, I was picking up the shells; noting what they were, putting them in plastic bags and trying to count them at the same time, and that is how I got my record of what I picked up and the number involved.
Q  (By Mr. Taikeff) All right. What I am trying to do is establish that at this moment your independent memory is insufficient and that the only recordization, the only record {2971} of what you saw with respect to finding shell casings is now memorialized on that piece of paper which is Defendant's Exhibit 176 for identification, is that a fair statement?
A  Well, no, that's not exactly correct.
Q  O.k. How is it wrong?
A  The notes I put in each bag also detailed what was in that bag.
Q  All right.
A  Now, whether they correspond to this, perhaps that's where the error was made, I don't know, as far as the number of cartridges found.
Q  But as far as you can tell when you wrote that it was an effort to accurately record what you had seen and what you had recorded on your notes?
A  Well, you try and put it down as accurately as you can. Sometimes things happen in dictation, the number is wrong; and when it comes back for approval, if you miss it, you don't review it perhaps as thoroughly as you should, this happens once in awhile.
Q  Mr. Hughes, perhaps you misunderstand the nature of my inquiry. I am not challenging the accuracy of what you have done. I am not trying to pin you down to saying it was precise so that I can show you made a mistake in counting. I am trying to establish whether or not that document contains what used to be your memory which has now failed you, and that's the only {2972} purpose I ask you that question. Is that a fair statement, that that piece of paper is all that remains of your memory as to what cartridges you found and what the calibers were, is that a fair statement?
A  That plus the notes I put in each bag.
Q  All right, and that is as far as you could do it, an accurate compilation of your notes, right?
A  That is correct.
Q  And the notes were made on the scene as you were doing them, is that correct?
A  Yes, they were.
MR. TAIKEFF:  I offer that document as a past recollection recorded.
And I am showing it to Government counsel.
(Counsel examine document.)
MR. TAIKEFF:  Can counsel have a moment, your Honor, please?
THE COURT:  You may.
(Counsel confer.)
MR. TAIKEFF:  May we approach the side bar?
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF:  Your Honor, the Government made a mark on Defendant's Exhibit 176, Mr. Hultman made a mark.
{2973}
MR. HULTMAN:  Inadvertently.
MR. TAIKEFF:  Inadvertently, Instead of trying to get another document, we will just state to your Honor in the presence of the jury that there is a mark there, and that was just put on by counsel.
MR. HULTMAN:  I was going to ask a question about it, and I accidentally marked it. We have been trying to find another copy, and we can make another copy if you want to. I brought counsel's attention to it.
THE COURT:  If it is acceptable to counsel, it is acceptable to the Court.
MR. TAIKEFF:  It is acceptable.
MR. HULTMAN:  I would like to ask on voir dire a couple of questions.
MR. TAIKEFF:  I am almost finished with my cross examination.
MR. HULTMAN:  On this little item.
MR. TAIKEFF:  O.k.
MR. HULTMAN:  Probably after asking those couple of questions, we may not have any objection at all to this document going in, to the extent of the part you are talking about. I would object to anything up here (indicating), in the rest of it, but you haven't discussed it in any way, so that I might be willing to accept, without objection, the cartridge listing which is the part you have been {2974} asking the questions about.
MR. TAIKEFF:  It makes good sense to me.
MR. HULTMAN:  That's what you are trying to get, is that fair enough?
MR. TAIKEFF:  Perfectly all right. Suppose then what we do, you indicate your position on that, and then I will make the offer.
MR. HULTMAN:  Reproduce it.
MR. TAIKEFF:  You don't have to mention that mark. The record is now complete.
(Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
MR. TAIKEFF:  Mr. Hultman, are you going to examine the witness?
MR. HULTMAN:  Could I just voir dire for two questions? I think then we might be able to stipulate, counsel, as to the part of the exhibit you are questioning about.
Mr. Hughes, Agent Hughes, is it my understanding that at the time counsel is asking you about now, that you made the listing which is part of the proposed exhibit, Defendant's Exhibit 176, that lists the number of cartridges by various calibers and various numbers, is that correct?
THE WITNESS:  That's correct.
MR. HULTMAN:  All right. Is it also true that you at that time were doing the best you could in terms of {2975} recording what it was that you were picking up?
THE WITNESS:  I was trying to get it done before dark, yeah.
MR. HULTMAN:  Is it possible that you could have made a mistake during that time in terms of either the number of specific cartridges that you may or may not have picked up or to a specific designation of a given cartridge or cartridges?
THE WITNESS:  Under those conditions, yes, very possible.
MR. HULTMAN:  And that whatever -- is it also true that whatever was received then by the lab from you and were analyzed carefully there by number, by caliber and so forth by experts -- and I might add, counsel, who will be testifying probably within the next witness or two -- that they were in a more -- better position to accurately analyze how many, what the caliber were and so forth than were you at the time you were picking them up?
THE WITNESS:  That's correct,
MR. HULTMAN:  All right. With this, your Honor, the Government would have no objection to the entry of that part of the Exhibit 176 which begins with one sentence and then lists all of the cartridge casings to which counsel has been referring; and I would note for the record that it does refer to some specific 5.56 cartridges.
{2976}
MR. TAIKEFF:  Two of them.
MR. HULTMAN:  We would stipulate that part beginning with the sentence:  The area surrounding this green house was searched, and on the east side of the green house the following shells were located.
MR. TAIKEFF:  With your Honor's permission, we will prepare a duplication of that part of the exhibit and then offer that as 176-A if we may do that.
THE COURT:  If you can get by the Clerk, I will do that.
MR. TAIKEFF:  I was watching the Clerk as I was addressing the Court.
THE COURT:  What is your position on 176?
MR. TAIKEFF:  Withdrawing 176 and substitute 176-A in its place at the appropriate time.
THE COURT:  Exhibit 176-A is received.
(Defendant's Exhibit 176-A, having been previously duly marked for identification, so offered in evidence, was received.)
MR. TAIKEFF:  Your Honor, in view of the fact that for all practical purposes it is in evidence and in view of the fact that Mr. Hultman made reference to some 5.5 cartridges being mentioned, I think it appropriate that I indicate at this particular time that the list contains two 5.56 millimeter cartridges.
{2977}
THE COURT:  Very well.
Q  (By Mr. Taikeff) I have just a few more questions for you, sir.
You said that the agents who were killed that day were friends of yours. I assume you were referring to both of them?
A  That's correct.
Q  Is it a fact sir, that Special Agent Williams was a bachelor without children?
A  To the best of my knowledge he was.
Q  If he had any, he was keeping it a secret?
A  He wasn't telling me.
Q  O.k. Specifically with reference to my question about Oregon, could you tell us whether Special Agent Adams was one of those who went to Oregon?
A  No, not Oregon to my knowledge.
Q  And could you tell us if you know the name of the person who on behalf of the FBI, possibly in the Rapid City office, handled the Canadian extradition aspect of the case?
A  I am not familiar with who was handling that. It was not part of my work.
Q  O.k. Now, you interviewed a person by the name of Noah Wounded, an Indian person, sometime in November of 1973?
A  I believe I did. I would have to refresh my memory again.
Q  All right. If I could have just a moment. I am showing you a 302 with your name on it, dated {2978} November 6, 1975, making reference to an interview on November 5, 1975; and I call your attention to the last paragraph on the first page and the only paragraph on the last page, and when you have looked it over, I will put a question or two to you.
A  (Examining).
Q  Is it a fact, sir, that Noah Wounded told you that, whatever he knew?
A  This doesn't refer to an interview by Noah Wounded, by any FBI's.
Q  (Examining) I see. I stand corrected on that. That was an interview of Noah Wounded by the Bureau of Indian Affairs?
A  By an officer named Fred Two Bulls.
Q  And you in turn interviewed that person?
A  The individual listed on the report with me, Tom Greene interviewed him, I was present during the interview.
Q  You have no knowledge, no personal knowledge of what was said between Fred Two Bulls and Noah Wounded?
A  I listened to Tom Greene interview Fred Two Bulls. I know that's what the interview is concerned with.
Q  I see, but then you have no personal knowledge of the conversation between Fred Two Bulls and Noah Wounded?
A  None other than what he reported.
Q  O.k. The last topic I want to question you about relates to the assault on the green house, something which occupied {2979} some if not most, of your time in the latter part of the afternoon of June 26th, 1975.
Now, on at least one occasion in connection with your efforts to assault that building, you came under heavy fire, is that correct?
A  That's correct.
Q  Now, taking into consideration your arrival -- and I use the pleural, I don't mean your personal arrival but some or all of the members of your group -- taking into consideration the arrival of members of your group in the immediate vicinity of the green house, I want you to tell us how much before that did you come under heavy fire which, based on your observations, was coming from the green house?
A  Now, this is the assault at 5:50 p.m.?
Q  Yes, the latter part of the day, almost 6:00 o'clock, that's right.
A  Well, to the best of my knowledge, as I am about half way there I had a great deal of fire directed at me from that area. I don't know if it came from individuals in the green house or where it came from.
Q  But it was close to --
A  (Interrupting) Well, the sound come up, from up there, that's all I can testify to.
Q  O.k., and once this area was secured, initially how many law enforcement officers would you say were up there?
{2980}
A  Well, I estimated that approximately 20 additional officer joined us.
Q  After how long?
A  This was at approximately 4:30 p.m., prior to making the assault, and they were in on the assault of those houses.
Q  So the total number of law enforcement people up here in the vicinity of the green house (indicating), after the assault was greater than 20?
A  It was greater than 20, yes.
Q  O.k. From that vantage point in or near the vicinity of the green house, can you see this area here (indicating), which is marked "Crest of plateau", and let's say for 50 feet on either side of the line marked "Crest of plateau"?
A  I am not positive, but I believe, as it indicates there, there is a plateau which perhaps obstructs part of the view, I am not positive. I am not positive on that. That doesn't --
Q  (Interrupting) Can't you see from up here all the way over to these trees (indicating)?
A  I don't know offhand if you can or not.
Q  Let me ask you this question:  If you stood here on the line (indicating) and you could see the green house, you would be satisfied that you could see the opposite way, could you not?
A  Could you repeat that, please?
Q  I said, if from the center of the area marked "Crest of plateau", you could see the green house, there is no reason to {2981} believe you couldn't see the other way to the same distance, isn't that correct?
A  I don't recall that well enough to know what you can see or cannot see.
Q  When you and your fellow officers were up there around the green house after you secured it, were you on the lookout for anybody other than other law enforcement officers, seeking to apprehend somebody?
A  After the houses were deemed clear, I had assumed -- I was told, I don't recall which -- that the individuals that had be there had escaped, so my immediate concern was to get the crime scene done prior to the approaching darkness, so I don't recall what you can see.
From then on my attention was devoted to doing the two crime scenes around the green house and around Agent Coler's car. Were there any people running from the green house leading in the direction of Tent City?
A  I don't know. You mean, during the assault or when?
Q  Any time after the shooting stopped while you were running up to the green house, there was shooting, wasn't there?
A  Yes, there was.
Q  Had to be somebody there?
A  I don't know where the shots come from, whether it come from there or elsewhere.
Q  Well, you said the shots came from the green house?
{2982}
A  Well, the sound come from that area somewhere.
MR. TAIKEFF:  Excuse me one moment.
(Counsel confer.)
{2983}
Q  Weren't there law enforcement officers somewhere along this right-hand curved part of the road that forms the right-hand part of that "Y" intersection?
A  At what time?
Q  At the time of the assault.
A  Well, we sent the group down there somewhere. Where they went, I don't know. I didn't see them.
You can't, the map doesn't show, but the topography of the area there, there is a lot of places that you cannot see. And I sent them there. That's where they were sent, but whether they went there, where they were exactly, I don't know.
Q  Did any law enforcement officers report to you that either at the time of the assault on the green house or immediately afterwards anybody ran from the vicinity of the residences in a southeasterly direction, or in a direction which would take them to tent city?
A  I don't recall specifically. I'm aware that through subsequent investigation that I think some of the people did escape that way.
They escaped down to the aware known as tent city, but I'm aware of that through subsequent investigation. Perhaps an officer told me that, I don't recall.
Q  But the question is:  What time of day did they do that?
A  Well, they weren't there at 4:30. We found no one up around {2984} the green house except for the dead Indian male, Joe Stuntz. So I can only presume that they escaped sometime between 2:30 when they were shooting at me physically. I actually saw one then, and the rest of the time I don't know where the shots came from when I assaulted the house. So I wouldn't know this, that area when they escaped that area of time from 2:30 to, when we assaulted the house at 10 till 5:00.
Q  Let me ask you then whether it's fair to summarize what you've told us in this way:  That either there were people at the green house shooting at you who then managed to escape, or people were shooting at you from another location that you have not determined the site of; is that a fair summary of your testimony?
A  The first part of that, there were definitely people shooting at us where the shoot-out occurred at 2:30.
Q  I'm talking about the latter part of the afternoon.
A  At the final assault?
Q  Yes.
A  There I don't know where the shots came from.
Q  Could be the green house or some other location?
A  I don't have any idea where the shots came from other than the sound came from that area up there.
MR. TAIKEFF:  I need one minute to confer with Mr. Lowe, Your Honor.
{2985}
(Defense counsel conferred.)
MR. TAIKEFF:  Your Honor, I have no further questions on cross-examination at this time.
I assume that at some time in the near future the Government will produce the five, if there are five, cartridges, .223, at which time it may be necessary to recall this particular witness. But at this time there are no further questions.
MR. HULTMAN:  Your Honor, I think I have just a brief redirect and I may solve the problem now which counsel is referring to.

REDIRECT EXAMINATION
BY MR. HULTMAN
Q  Is there what is known, one's evidence of the kind and nature that you found as taken to the spot where it is kept, you do then subsequently prepare a, what is known as a green sheet which then accompanies the specific objects, such as in this case the round that you have found, to the laboratory itself?
A  The green sheet serves as a double check that allows you to, once you're back from your field position, to sit down and count out specifically what cartridges you have seized under a better situation.
And I filled out a green sheet detailing from these bags what cartridges I have picked up.
Q  Did you in fact on that occasion make out a green sheet, or summary of those items?
{2986}
A  I set down and filled out a green sheet and counted the cartridges I was sending to the laboratory.
Q  All right. I'm going to show you here an item, and I suppose I should at least mark it for identification purposes.
(Clerk marked document.)
Q  (By Mr. Hultman) What has been marked as Plaintiff's Exhibit 177, and it is a reproduced copy of a document, and ask you to look at it.
A  This sheet --
Q  Well, wait a minute, I want you to look at it for just a moment, Agent Hughes, and ask you whether or not you recognize what it represents?
A  Yes. It's listing the cartridges I picked up on June 26, 1975.
Q  All right. Now, subsequent to the picking them up you then made out a green sheet which is what you're now indicating; is that right?
A  That's correct.
Q  And when did you do that?
MR. TAIKEFF:  I must object, Your Honor. I think the phrase that indicates that the witness was indicating that, or suggests that he was indicating that that's the green sheet, was misleading. I don't think that's been his testimony.
MR. HULTMAN:  All right. I'll withdraw.
Q  (By Mr. Hultman) Did you or did you not make out a green {2987} sheet?
A  I did.
Q  And is that something that is commonly referred to in terms of being a green sheet?
A  Yes. It's a Form F-2192. It's green in color. We call it the green sheet.
Q  Now, is what I have in front of you now a photostatic copy or some type of a copy of such a document?
A  It's a copy of the document I prepared detailing the cartridges picked up on 6/26/75.
Q  All right. Do you know from your own memory that you prepared such a document without looking at the document itself?
A  Yes. I know I prepared a document.
Q  All right. And if I ask you to look then at the copy that is in front of you at this present time do you recognize anything on it that would indicate that you have any relationship to it?
A  Well, my name is on it.
Q  All right. And does customarily the individual put his name on that document?
A  Yes.
Q  Okay. Now, do you recall from your own memory without refreshing your memory as to the document itself, what the compilation was in terms of calibers, in terms of numbers of rounds and so forth that you in fact sat down and counted at the {2988} time you made out the green sheet?
A  I don't have an independent recollection. There were so many.
Q  All right. Would you, by looking at the document which is now in front of you, be able to at least recall that there were some rounds of certain particular caliber? I'm not asking you specifically what ones, I'm just asking you, can you by looking at the document refresh your memory at least as to certain caliber of rounds which you did in fact count at that time?
A  Yes.
Q  Or make some notations as far as that green sheet?
A  Yes.
Q  All right. Now, am I correct that the green sheet then, the document goes with the items, in this case rounds, to the lab?
A  That's correct.
Q  And then am I correct that at the lab, whoever receives them there, sits down with the green sheet that you have sent and with the items that are accompanying the green sheet and determine in fact what it is that is there?
MR. TAIKEFF:  Your Honor, I think that is clearly a leading question and I object to it.
MR. HULTMAN:  Well, I'm just trying to get preliminary to get --
{2989}
MR. TAIKEFF:  I understand, but I think we're on a sensitive point and although generally neither side gets too upset about leading questions in this trial, I think when we get to the sensitive stuff there should be no leading.
THE COURT:  Sustained.
A  You send a green sheet accompanying your evidence so that the laboratory has a record of what it is, what you are submitting for examination.
Q  (By Mr. Hultman) All right. Now, just in looking at this document and refreshing your recollection, if it can be refreshed by the document, might I look at it just one moment, did you in fact note on the green sheet that there were included 5.56 cartridge cases of some kind and nature?
A  That's correct.
MR. HULTMAN:  All right. I have no further questions on this at this time, Your Honor.
MR. TAIKEFF:  May I see the document before --
MR. HULTMAN:  I'm not going to offer it until I have the expert that received it.
Counsel, I'm not going to offer it at this time and I'm going to go to other matters unless you want me to wait.
MR. TAIKEFF:  On redirect?
MR. HULTMAN:  Yes.
MR. TAIKEFF:  I'll wait
MR. HULTMAN:  I have a few very brief questions.
{2990}
MR. TAIKEFF:  I'll wait.
Q  (By Mr. Hultman) I just have a few other questions, Agent Hughes.
On cross-examination counsel asked you a number of questions concerning shotguns and what kinds of rounds can be fired in them and so forth. And also some questions about other weapons. And I just wanted to ask you with reference to the distance questions and so forth that he asked you one question, if, if you were an agent, one of either two agents who were at a car, and if the two agents, you and the other agent, had between you a revolver, and in the trunk of an automobile, one of your automobiles was a shotgun and was a rifle and you proceeded to secure them, which of the weapons generally speaking between a revolver and a shotgun and a rifle, which of them would be normally used for the shortest range?
A  The shortest range?
Q  Yes. The closest range.
A  Well, probably be the shotgun.
Q  All right. What would, what would be the next weapon that would be the next longest range generally speaking?
A  Generally speaking a pistol. It would depend on the barrel length of the pistol.
Q  All right. And the rifle would be a weapon that would be used at a longer range; is that correct?
A  That's correct.
{2991}
Q  I believe on your testimony on cross you indicated that you had carried a shotgun all that particular day; is that correct?
A  I indicated that I was packing a shotgun, yes.
Q  So that was the weapon that you yourself that day made a judgment call about and that's the one you selected that particular day; is that correct?
MR. TAIKEFF:  Objection. Leading. That's also not any evidence upon which that question could be asked.
THE COURT:  Sustained.
Q  (By Mr. Hultman) Well, what weapon did you carry that day?
A  I carried --
MR. TAIKEFF:  That's been asked and answered, Your Honor.
THE COURT:  I think it's clear that he was carrying a shotgun.
Q  (By Mr. Hultman) All right. Then I'll ask the question:  For what reason if any did you carry a shotgun that day?
A  Well, for -- that was a weapon that I felt comfortable with or for most general situations which you might run across.
Q  All right. With reference to the same weapon or types of weapons that we've just been discussing, can you fire a pistol with just one hand, one arm?
A  Yes.
{2992}
Q  What about if you are going to use a shotgun, comparatively speaking?
A  Well, the type shotguns that we carry, they're pump action shotguns. So you could not put the shell in the chamber with one hand unless you did a lot of maneuvering. It would be very difficult.
Q  And would the same be true as far as a rifle, any other type of rifle?
A  Our rifles are also pump rifles, so that would also be very difficult.
MR. HULTMAN:  I have no further questions.
 RECROSS EXAMINATION
BY MR. TAIKEFF:
Q  Mr. Hughes, I'm going to place before you again the two page document which has been previously identified as Plaintiff's Exhibit 177 so that I can ask you some questions about it. I'll have to stand by because there's only one copy, so we'll look at it together.
Now, do I understand that the original of this was on a green colored paper and hence it's called a green sheet, or green document?
A  Normally, yes
Q  This is a photostat of that document?
A  Yes.
Q  Now, ignoring the Clerk's yellow label showing the exhibit Number, is it fair to say that the document consists of the {2993} following components:  There are certain lines and boxes that are printed on it with words indicating what kind of information is supposed to go inside those boxes?
A  That's correct.
Q  And in addition to that the bulk of the writing on the document is typed writing?
A  That's correct.
Q  Typewriting?
A  That's correct. Except that to the left.
Q  And then there's a certain amount of handwritten material that might have been made in pen or pencil, but we can't tell from this photostat; is that a fair statement?
A  That's correct.
Q  And then there is what appears to be the reproduction of a rubber stamp of some kind?
A  Yes.
Q  And in addition to that, in a handwriting that appears to be different than the handwriting which is in the upper two-thirds, a few notations in the vicinity of the rubberstamp, one of them completely within, one of them completely outside and one of them partly in and partly outside with some notations, handwritten notations?
A  Yes.
Q  And then there is some kind of a signature in the lower right-hand corner of what appears to be the rubber stamp or {2994} initials by somebody?
A  Yes.
Q  Now, have I accounted for all the separate components which can be seen on the face of the document?
A  Basically speaking, yes.
Q  Okay. Now, when you first prepared this document did you type it or did you dictate it or how did you prepare it?
A  To the best of my recollection I dictated it.
Q  And when you got it back is it fair to say that it had only the typing on it other than the printed stuff that's already on the blank form?
{2995}
A  Yeah. That's the best of my recollection, that's all it had.
Q  Now you notice along and in the left-hand margin there are a lot of numbers, most of which begin with the letter "Q."
A  That's right.
Q  And in virtually every case or possibly in every case, from the "Q" number over to the typed number of your list there is a horizontal line which ends in a little arrowhead.
A  Yes.
Q  Did you wrote those "Q" numbers?
A  No.
Q  Did you wrote those arrows?
A  No.
Q  Do you know when those marks were put there?
A  No, I don't.
Q  Do you know by whom they were put?
A  No, I don't.
Q  On the piece of paper.
A  No.
Q  Is there any date on this form which indicates when it was typed?
A  I don't believe these have a date indicating when they're typed.
A  And that one certainly doesn't?
{2996}
A  No.
Q  Is there any stamp or other notation which indicates when that form may have been processed or received at any office or premises of the Federal Bureau of Investigation?
A  Sometimes these stamps have dates. I don't know if this one does or not.
Q  At least on the photostat it doesn't appear to have a date, would you say that's a fair statement?
A  I can't see one now.
Q  It may be on the original but it's not on the copy?
A  I don't know. I don't know.
Q  Now a "Q" number is a number which is assigned to a piece of real evidence, right?
A  This is done in the laboratory. To the best of my knowledge that's what they do, but that would be purely speculative on my part. I'm not sure what they do down there.
MR. TAIKEFF:  I'm wondering, Your Honor, if the government would stipulate that
Q  numbers are assigned by the laboratory and they sequentially number exhibits which are processed in a particular case.
MR. HULTMAN:  I was trying to redirect to get to that information and I think the expert will be called, one of the next two or three witnesses will indicate the manner in which the
Q  numbers are given, but beyond that I would be incapable to stipulate whether or not they do them in any {2997} particular sequence or how that person would do that.
MR. TAIKEFF:  May I at least ask for a concession at this time that they represent some method of designating evidence, items of evidence by the laboratory?
MR. HULTMAN:  An item is given what they call a
Q  and then a number.
MR. TAIKEFF:  All right.
Q  (By Mr. Taikeff) Now item No. 13 and item No. 17 on your list of 36 separate entries refers to five .56 millimeter cartridge, doesn't it, or casing?
A  That's right.
A  Now somebody, I know you don't know who, somebody apparently put a long oval or loop around those two lines, isn't that correct?
A  They've been underlined and over lined; that's correct.
Q  And in fact the two lines have been joined at the end so it's an enclosed loop, isn't that true?
A  Item 17 is that way. Item 13 is not that way.
MR. HULTMAN:  I think the government will stipulate that Counsel did that very thing in sitting here just a moment ago.
MR. TAIKEFF:  No, Your Honor. That's on the photostat. It's not on the surface of the paper.
Your Honor, I see the original now. Apparently that was on the original from which the photostat was made.
{2998}
MR. HULTMAN:  Just about five minutes before.
Q  (By Mr. Taikeff) Now in your 302 which has been previously identified as Defendant's Exhibit 176 you list separately a single 5.56 millimeter Lake City cartridge case, is that right?
A  I believe I do. I'd have to look at it to make sure.
Q  (Indicating.)
A  Yes.
Q  And then in addition to that several lines below you list another 5.56 millimeter Lake City cartridge case, is that correct?
A  That's correct.
Q  Now is Plaintiff's Exhibit No. 177 for identification essentially the list of cartridges which you found in the same order in which that list appears in 176 for identification?
A  I'd have to go through and examine them.
Q  Just take a look. There seems to be some difference on the endings here.
I'm interested, of course, in the first 17 entries.
A  They're basically similar as far as I can see. It's hard not having numbers here which number is which.
Q  The 302 doesn't have numbers, correct?
A  That's correct.
Q  But the 13th item on the list of the 302 is a single 5.56 millimeter cartridge, right?
{2999}
A  That's correct.
Q  And the 17th item on the 302 is another 5.56 millimeter cartridge case, is that right?
A  That's correct; yes.
Q  Now looking at the typewritten portion of Plaintiff's Exhibit 177 for identification, does that refer to 5.56 millimeter, the typewritten portion?
A  Item 17?
Q  13 first.
A  Item 13.
Q  On the green sheet. The copy of the green sheet.
A  Yes, it does.
Q  Does the word case or cases appear on the 13th line typewritten portion?
A  It says "case."
Q  Singular?
A  Yes.
Q  Now look at the 17th line of the photostat of the green sheet. Does that make reference to a 5.56 millimeter object?
A  Yes, it does.
Q  And does it say case or cases?
A  It says "case."
Q  So when you made up the list, the green sheet of transmitting whatever it was you were transmitting to Washington at that time you dictated once again for each of those two {3000} entries in the singular, isn't that correct?
A  Yes.
Q  Yes or no?
A  Yes.
MR. TAIKEFF:  I have no further questions.
MR. HULTMAN:  I have no further questions.
THE COURT:  The court is in recess until 3:45.
(Recess taken.)
(Whereupon, the following proceedings were had in the courtroom without the hearing and presence of the jury:)
MR. HULTMAN:  Your Honor, there is one item, in response to the Court's inquiry of Counsel this morning, I now have a list of FBI fingerprint cards and I will give counsel those cards. These are the 11 that are in possession of the FBI in addition to the one that's in evidence in trial here.
MR. LOWE:  That is not in here?
MR. HULTMAN:  No. That is not in here. That's the 11 in addition to that in evidence.
MR. LOWE:  Thank you very much.
MR. HULTMAN:  I would like to note these are all of the ones in the possession of the FBI and I would not make any representation as to any prints that may have been taken by somebody somewhere else that are not within the FBI files. Could well be some other one.
{3001}
MR. LOWE:  We understand that, Your Honor.
THE COURT:  Very well.
The jury may be brought in.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)