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

WINTHROP DALE LODGE, FINGERPRINTS
DIRECT EXAM CONT VOL 15 A
CROSS EXAM CONT B

VOLUME 14

WINTHROP DALE LODGE
being first duly sworn, testified as follows:
 DIRECT EXAMINATION
BY MR. CROOKS:
Q  Mr. Lodge, would you again give your full name for the record, please.
A  Yes. Winthrop Dale Lodge.
Q  And where do you live, sir?
{3005}
A  I live at 1530 Brian Court in Waldorf, Maryland.
Q  And what is your employment?
A  I'm employed by the Federal Bureau of Investigation as a fingerprint specialist.
Q  And how long have you been employed by the FBI in that capacity?
A  Over 26 years.
Q  And would you detail, first of all, what type of training and practical experience you have had to prepare you for fingerprint examination?
MR. LOWE:  We'll stipulate to qualifications. If you want to state his experience is substantially the same as Mr. Mulholland incorporate that, we have no objection.
MR. CROOKS:  I, Your Honor, would like, I think the jury is entitled to a brief outline of his qualifications and background. However, in view of Counsel's offer I will consolidate it considerably.
THE COURT:  Very well.
Q  (By Mr. Crooks) And merely have him summarize, if you would, Mr. Lodge, basically what your background has been insofar as the fingerprint field is concerned.
A  Initially, extensive training in fingerprint work and I have conducted schools for police officers, agents of the Federal Bureau of Investigation.
Q  And what position, if any, do you hold within the Bureau {3006} itself concerning the fingerprints or fingerprint examination?
A  I'm presently employed as a fingerprint specialist.
Q  Now insofar as your work as a fingerprint specialist, were you called upon to do certain evaluations concerning the case that we're hearing in this courtroom today?
A  Yes, sir, I did.
Q  Well, first of all, where was your examination of your principle examination done insofar as this case was concerned? Was it back in your office or was it out on the scene?
A  Initially it was at the scene and also in my office in Washington.
Q  When did you come to the scene for the part of your work that was done there?
A  The early morning of June 27, 1975.
Q  And when you arrived, what places did you go and what did you examine?
A  I examined numerous items of evidence:  automobiles, evidence that was collected from different areas at the scene.
Q  In the course of your examination, did you have occasion to examine vehicles which were identified to you as being the Bureau vehicles of Special Agents Jack Coler and Special Agent Jack Williams, or Ronald Williams?
A  Yes, sir, I did.
Q  Now, first of all, going to the vehicle of Mr. Coler, do you recall where that was located when you first examined it?
{3007}
A  Where the automobile was located?
Q  Yes.
A  Yes, sir. It was located at the sheriff's department in Hot Springs.
Q  And where was Special Agent's vehicle when you examined that?
A  It was located near an area known as tent city at the scene.
{3008}
Q  And did you examine it at any other location other than the Tent City area, if you recall?
A  No, sir, I did not.
Q  All right. Insofar as your examination of both vehicles, particularly Special Agent Coler's vehicle first, what condition did you find the vehicle in when you first came to make the examination?
A  Which vehicle?
Q  Coler's vehicle.
Q  Aside from the obvious condition of the glass and certain areas of the automobile, there was quite a bit of material in the automobile.
Q  Well, let me ask you, first of all, before you get into what you actually saw, are you familiar or do you know Mr. Cunningham, Cortlandt Cunningham?
A  Yes, sir.
Q  And was he or was he not in the area at the same approximate time that you were?
A  Yes, sir. In fact, after I had completed my examination, why, I had turned the vehicle over to Mr. Cunningham.
Q  All right. Now, Cunningham works in another part of the FBI laboratory, does he not?
A  Yes, sir.
Q  And in a different field, particularly ballistics and things of that nature, as opposed to fingerprints?
{3009}
Q  Yes, sir.
Q  Now, who made the examination first -- and I think you have already partially answered that -- you or Mr. Cunningham?
A  I did.
Q  And is there any reason for you having done it in that progression?
A  We normally do it in that progression because -- to preserve any latent prints that may be on the items or the vehicle itself.
Q  All right. So in other words, when the people would be coming in to remove hard items, there would be more of a chance that a fingerprint would be spoiled, would this be substantially the reason?
A  Yes, sir.
Q  So ordinarily the fingerprint people would go in first, and then followed by the people that would be removing hard evidence?
A  Yes, sir.
Q  All right. Now during the course of the examination of Special Agent Coler's vehicle, you described it as having various obvious bullet holes or defects to the exterior. Would you describe the interior as you first saw it?
A  As I recall, there was quite an amount of items in the vehicle itself, inside the vehicle.
Q  And from your examination of the vehicle, did it appear to {3010} have been ransacked by anyone prior to your having gone into it?
A  No, sir. It didn't give that appearance, that I noticed.
Q  In other words, things were in a relatively orderly fashion, at least as orderly as they could be, having been subjected to a barrage of bullets?
A  Yes, sir.
Q  All right. Insofar as the examination of Special Agent Williams' vehicle, what was your observations when you first examined that vehicle?
A  I would say that it -- are you speaking of the interior of the vehicle?
Q  The interior, yes.
A  I would say that it would -- I guess accurately say it was in disarray.
Q  Now, so we can be a little more specific, and I think you have already indicated that you looked at the vehicle up at Tent City; and I would call your attention to a map which has been numbered Exhibit 71, and indicating the designation on the map, "Special Agent Williams' vehicle," would that be the approximate location as best you can recall where you examined that vehicle?
A  Yes, sir. As I recall, it was in a clearing just above the area known as Tent City.
Q  All right. Insofar as your examination of Special Agent Williams' vehicle at that time, when your examination was made, {3011} did you observe things of a personal nature which would normally be associated with the owner of the vehicle?
A  I observed a suitcase containing clothing.
Q  All right. What about -- for instance, were there any boxes of ammunition found that you would ordinarily expect an FBI Agent to be carrying, if you recall?
A  As I recall, offhand I don't recall seeing any.
Q  All right. Were there other items which -- that I would generally classify as items of value, which you saw in the vehicle at the time you searched it?
A  No, sir. I don't think that you would consider the things that I observed of value.
Q  All right. Insofar as Special Agent Coler's vehicle, would you make the same observation or a different observation?
A  I would say a different observation.
Q  And will you explain that from the standpoint of what types of things you found in Special Agent Coler's vehicle that you would consider being things of value?
A  Well, for one that strikes my recollection was a wallet containing money.
Q  All right. Were there any firearms -- excuse me, I didn't mean to cut you off -- were any firearms found in Special Agent Coler's vehicle?
A  Yes, sir.
Q  And do you recall generally what type this was and where {3012} it was located?
A  I don't recall just where it was located, but I do recall that it was a handgun.
Q  O.k. and were there any boxes of live ammunition found which would normally be expected to be found in a law enforcement officer's vehicle?
A  Yes, sir. There was quite a number of pieces of ammunition in the automobile.
Q  Getting down more specifically to your examination of Special Agent Coler's vehicle, were any shell casings found by you and removed from the vehicle as evidence?
A  Yes, sir, there were.
Q  And I would hand you, first of all, Exhibit No. 34-B, and ask if that's an item that you had seen before and can identify?
A  (Examining) Yes, sir. This was one of the casings that recovered from the automobile.
Q  And where was that recovered from?
A  This was recovered from the trunk of the automobile.
Q  And so the record is clear, what date was that found?
A  6-29-75.
Q  And there is a tag contained within the exhibit, is there not?
A  Yes, sir.
Q  And in whose handwriting is that tag made out?
A  This is in my handwriting and also my initials appear on {3013} the tag.
Q  And what did you do with that exhibit after you found it?
A  We processed it for -- examined it for latent prints which there were none.
Q  You found no latent prints on it?
A  No, sir, I did not.
Q  O.k. Then what did you do with it?
A  The items were turned over to Cortlandt Cunningham of our laboratory.
Q  Now, Cortlandt Cunningham is the gentleman that you have testified about earlier, he was at the scene and started his examination immediately after yours, is that correct?
A  Yes, sir, that's correct.
MR. CROOKS:  I offer Exhibit 34-B.
(Counsel examine document.)
MR. LOWE:  May I have a moment, your Honor?
THE COURT:  You may.
(Counsel examine document.)
MR. LOWE:  May we approach the side bar?
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE:  There were some discussions that have been had.
(Counsel confer.)
{3014}
MR. LOWE:  My concern and Mr. Taikeff, I think, talked with Mr. Hultman and maybe there is some light he can shed on the subject. I will describe my concern.
My concern is that this is being testified to by this I witness as having been found on June 29th, three days after the incident, and there have been some discussions back and forth, and I would like on this 34-B which was allegedly found in Coler's trunk -- they have just offered it, and I am raising the issue that Mr. Lodge has just testified that he personally found it on June 29, 1975, three days after the shooting incident, when the vehicle was impounded, wherever it was, Hot Springs, I think it was?
MR. CROOKS:  Right.
MR. LOWE:  Now, this brings us back to a point that we had discussed preliminarily with opposing counsel on one other occasion, perhaps before the Court, I am not clear; and that is that there has been no nexus shown in evidence at this point between June 29 and its being found in the trunk of Coler's car, and the condition -- where, the location it might have been found on June 26 when the incident occurred and the officers came through the area and secured the crime scene; unless there is a stipulation of some sort, that a proper foundation has not been laid -- I am unaware of any such stipulation but there was some {3015} discussions about this earlier; and I think at this point we have to deal with that question because my objection would be on the grounds that no foundation has been laid to show that this cartridge was in Coler's trunk at the time of the shoot-out or immediately thereafter; and until and unless such evidence is adduced, then an improper foundation exists.
Now, does that key you to the other discussions we had with Mr. Hultman, perhaps with Mr. Sikma, with Mr. Crooks earlier?
MR. CROOKS:  Your Honor, I might respond to this. It has been our clear understanding from the very start that we need not account for these vehicles that counsel has stipulated that the vehicles -- if we went to the trouble to prove them -- were impounded from the scene and locked up in a secure area and so forth. I have never understood that to be the question.
Counsel has stated to us on numerous occasions that that was not an issue, and that it would not be raised. Counsel has now apparently -- Mr. Lowe apparently is now raising a point which they have already stipulated with us in person on numerous occasions.
If Mr. Lowe wishes to nickel and dime this issue, we can go back and produce all the people that cared for that car and introduce it, but that was clearly stipulated as {3016} being not an issue in this lawsuit, that those vehicles were in a secured position.
MR. LOWE:  Judge, this is a piece of the daily record of this trial, Page 2211, which I have extracted when I specifically -- and I made a big point of saying that we were not stipulating in any way the chain of 34-B -- and I anticipated it back then, and here we are now -- on the fact that we do not stipulate any part of the chain in view of this problem on the affidavit; and I think that was certainly true back then, and I think it supports the lack of foundation at the present time.
MR. CROOKS:  Well, just if I could have one second to get our written stipulation.
Your Honor, during the course of the discovery we went through all of the exhibits; and Mr. Taikeff or Mr. Lowe in his own hand made out a list of those on which they were not stipulating the chain of custody, and clearly designated six items. This was not a listed item, and counsel, there has been no question from the very start that insofar as Mr. Taikeff, at least, is concerned, that we are not going to have to bring in the Sheriff, the ambulance drivers, the garage towers, and everyone else to account for these vehicles being in the same condition; and if counsel is going back on their stipulation, then I suppose we are going to have to produce new witnesses. I {3017} suppose it is as simple as that.
MR. TAIKEFF:  I just want to respond only to the extent that what Mr. Crooks said concerned my pre-trial activities, and that is to say, that Mr. Crooks may not have been at the side bar the other day when Mr. Hultman and I were addressing the Court in this connection. But to simply summarize it and to perhaps refresh the Court's recollection, the understanding was that the Government had an adequate and proper chain of custody, body of evidence, and on their representation we agreed. In the course of the trial, as might be expect, a number of revelations were made which required us, in our role as advocates for the Defendant, if you will, to withdraw as to a limited number of items where there was a solid indication that we should. That doesn't mean to say that the Government, in telling us that there were no problems, acted in bad faith; and it doesn't mean that we, in recognizing one or two or three exceptions, are acting in bad faith.
I was under the impression that Mr. Hultman and the Court and I were in essential agreement about this. This appears to be one of those things.
MR. CROOKS:  Well, your Honor, as far as we are concerned, this shell casing was found as testified by this witness in this vehicle. It seems to me that in and {3018} of itself is enough to put it into evidence.
Counsel has now stated apparently that he has some reason to believe -- they apparently have some reason to believe that we planted the shell casing and I put them to their proof. If counsel is suggesting that the United States planted the shell casing that that is a just reason for backing out of that stipulation, then I submit that they should offer some evidence of that rather than just stating to the Court that because they now feel it is damaging evidence, that the stipulation which was clearly understood by all counsel would not -- would be binding.
Now, if counsel has some reason to believe that there is some evidence that that shell casing was planted and was not there on the 26th, then we suggest that they should come forward with their proof rather than merely saying that, "We feel that now, because the shell casing is extremely damaging, we should go back on our stipulation."
MR. LOWE:  Judge, that is not a correct statement of the situation, and the other day I took great pains to anticipate the possibility that the Government would need to call additional witnesses. The record, Pages in the record, 2210 and 2211, show the fact that the 3500 material which I had not seen when we entered into the stipulation was the affidavit of Mr. Cunningham which raised a serious question as to the origin of this round, where it was {3019} found, when it got there and I put it in the record. That's the document, Xerox copy of the transcript you have in front of you, as to Exhibit 34-A, and B. We simply cannot stipulate as to the chain in view of this affidavit
Now, that doesn't mean that the Government is not allowed or can't prove that there is a chain; but this round is irrelevant unless it is shown that it was present in the car on June 26th; and until and unless they show a chain from June 26th, where the car was down there where the agents were killed, and connect it up with the round that is found on June 29th, they have not laid a proper foundation.
We put them on very clear notice. I think your Honor knew that we did that. I don't think they can be heard now to claim any surprise. That was on the 30th of March which was almost a week ago, and we made it quite clear that we weren't going to stipulate as to any chain in 34-B. Here we are.
MR. CROOKS:  The further discussion which counsel is talking about here was a question at the bench. However counsel well recalls a very irate conversation between myself, Mr. Sikma and Mr. Lowe immediately following that. Shortly thereafter we talked to Mr. Taikeff, and Mr. Taikeff assured us that there was in fact no problem. That's the state of the record.
{3020}
MR. HULTMAN:  In light of the fact two counsel have commented, I want to make one comment; and that is, your Honor, we stand on the proposition that the evidence right now is sufficient, that a foundation has been laid for the entrance of this regardless of what stipulations or anything may have been.
(Counsel confer.)
THE COURT:  Well, I want to examine the record more fully. Are Mr. Taikeff's comments on the record?
MR. CROOKS:  No, your Honor. Mr. Taikeff's comments were after the irate conversation with Mr. Lowe. Mr. Taikeff came over to our table and said, "Your understanding as to the agreement is in accord with mine, and there is no problem," and we assumed that concluded the issue. That was right at our counsel table, and it was right after this conversation at the bench.
MR. SIKMA:  There are two chains of custody we are concerned with. One is the chain on this piece of evidence from the time it goes to the trunk into Washington, D.C., into the lab. The other chain is really the chain of custody of the vehicle itself, when the vehicle is found down at the scene, they close the trunk lid and they haul -- the wrecker comes in and hauls it away somewhere else. We had a wrecker driver, agents, the people who handled the impound and so forth, and my understanding has always {3021} been that we didn't have to call those witnesses, and that's what I understand.
MR. TAIKEFF:  Could I confer with Mr. Lowe about that?
MR. SIKMA:  That's what I understood him to say to me even after this.
(Counsel confer.)
MR. LOWE:  The state of the record is clear in the defense camp, and I can state what our understanding is. I believe this is what I stated the other day to Mr. Sikma, perhaps Mr. Crooks and Mr. Hultman. It is what Mr. Taikeff understood, he acknowledged:  That we are willing to stipulate if there be an offer of proof of some kind, we will stipulate to the offer of proof, I presume, as to the wrecker operators that towed the car and put it in the compound, BIA officers who locked it up or sealed it up or whatever they did with it in the compound, BIA officers who will testify that it was not unlocked until Special Agent Lodge or Cunningham. They broke the seals, and will stipulate the testimony about what was done with the seals, that they were broken by the officer and kept or something, or they are in existence somewhere; and stipulate that at that point the BIA officer gave access to Special Agent Lodge or Special Agent Cunningham, whichever -- I guess it was Lodge first - we have no dispute with stipulating that on an offer of {3022} proof.
What we are certainly not willing to stipulate to is what happened from the time of 11:50 a.m., on June 26th, 1975, through the time that the wrecker operator hooked up the car and pulled it away; and that's the only part of the thing that we have been indicating and even as to that if they will make an offer of proof, it is possible we can stipulate to that. We don't know what the offer of proof will be, and we are not prepared to stipulate blindly, just generally, as to custody or generally as to foundation; and I think that's clear in the record, that we said could not do that generally; but I told Mr. Sikma if he would tell us what the chain was and what the people would testify, I was sure we could stipulate as to what their expected testimony will be so we wouldn't have to call probably a procession of witnesses which would take a lot of time.
That's what Mr. Taikeff understood also. There was no problem, we would stipulate to these people along the line we stated, if they would make an offer of proof to us on which we could base a stipulation.
MR. CROOKS:  No. 1, everything Mr. Lowe just said is completely irrelevant. We have more than an adequate foundation right now to put the exhibit in. The testimony has been the thing was locked up in the garage. He {3023} testified he came and examined the vehicle and found the shell casing. That's all the foundation we need.
If counsel wishes to cross examine, to imply something different, that's their business; but there is more than adequate foundation right now to produce that exhibit, and I fail to see what counsel is talking about.
I certainly wish that we could resurrect Jack Coler and Ron Williams who are dead to say how the shell casing got into the trunk. We don't have anybody other than their client who knows exactly how that shell casing got into the trunk. That's exactly what I am saying, counsel is attempting to nickel and dime an issue which he hasn't got a good objection to to start with.
This man testified he found the casing. That ends the inquiry. If that shell casing was found a month later, that goes to the weight, not to the admissibility of this evidence.
MR. LOWE:  He didn't find it at the crime scene, it was found 12 miles away. That's not relevant unless you can show it was at the crime scene at some point.
THE COURT:  I cannot from my recollection recall what evidence you have in the record at this time as to the chain of custody of that Coler automobile from the time that it was first examined.
MR. CROOKS:  All we have, your Honor, is general {3024} testimony that the vehicles were towed to Hot Springs and locked up, and I don't think we need anything more than that.
We had understood, as I said before, that that was not going to be an issue. Counsel clearly led us to understand that that was not an issue, even after this conversation. Mr. Taikeff informed us, "That's not an issue, we aren't raising that," and now Mr. Lowe --
MR. TAIKEFF:  (Interrupting) We are not raising that now, are we?
Mr. CROOKS:  Mr. Lowe is now raising a technical objection to something that counsel has backed off on before this trial started, and even with that, the objection goes to the weight, not to the admissibility of this exhibit
THE COURT:  What witnesses is it going to be necessary for you to call to show the chain of possession?
MR. CROOKS:  I don't know exactly, your Honor, probably five, six.
Mr. LOWE:  We will probably stipulate five of them. I have indicated we will stipulate as to what most of those people will say if they will tell us who they are and what their expected testimony will be. We are not saying we won't. It may be we can stipulate the entire chain. All I asked Mr. Sikma was what the chain was.
THE COURT:  There is the statement in the record, {3025} Page 2211. Any conversation you may have had with Mr. Taikeff after that apparently did not get into the record.
MR. TAIKEFF:  Your Honor, I don't think the record should indicate that we might be taking advantage of an off-the-record conversation because, quite frankly, I am prepared and do live up to my off-the-record conversations to the same extent that I live up to my on-the-record conversations.
I don't think Mr. Lowe say that what I indicated to the Government was not a problem, it is in fact the problem. I told counsel -- I don't remember how many of them, but it was at least Mr. Hultman and probably all three Government counsel -- that from the time the vehicle was picked up until such time as the FBI Agent who found the shell was there, we would be prepared to stipulate that if certain people were called, they would say thus and such, and we would not challenge them in that regard.
I hope your Honor realizes that Mr. Lowe has said here and the position he has taken is not inconsistent with my assurance to the Government of those facts.
THE COURT:  Well, it seems to me then it is up to the Government to disclose just exactly what the chain of possession was.
MR. CROOKS:  We have already done that, your Honor. Counsel knows full well what the chain is.
{3026}
THE COURT:  They have indicated that --
MR. CROOKS:  (Interrupting) Your Honor, Mr. Beinner spent several weeks going over chain problems, any questions that arose; and I assume that this was one of the issues covered.
MR. TAIKEFF:  It was not specifically.
MR. CROOKS:  They didn't ask.
MR. LOWE:  Judge, this has just come up. All we ask is they sit down and make a notation, just a one sentence as to each witness and what he would say. We are not talking about an elaborate process.
MR. CROOKS:  If that's what counsel wishes, we will do that.
MR. LOWE:  That's all we need.
THE COURT:  For the record it is necessary it be done because apparently this is considered -- just a moment -- apparently this is considered a critical piece of evidence; and I think you are leaving a big hole in the record the way it is.
MR. CROOKS:  Well, your Honor, I don't think that this evidence can go into -- this piece of evidence is entitled to go into evidence even without that. If we have to do that to shore it up as far as weight, that's another thing; but this piece of evidence was found by this man. He just testified to that under oath. The {3027} assumption is that the evidence was where he found it at the tine the vehicle was gone in there.
THE COURT:  The inference might arise, but then again it might not, because there is no evidence in the record as to who closed down the trunk when it was closed down, specifically how the vehicle was transported, whether or not the trunk was sealed.
MR. CROOKS:  Well, your Honor, I can finish with the rest of the examination and prepare something on this over the evening because I can't do it off the top of my head.
Mr. LOWE:  That's fine.
MR. CROOKS:  We have the thing ready, and we can do it.
MR. LOWE:  We can get together with you the first thing in the morning, 8:30 or something. I am sure we will have no trouble in working out a stipulation.
THE COURT:  I think the counsel should get together this evening in view of this understanding and see.
MR. CROOKS:  We are prepared to do it. We would have been prepared to do it at the very start, if this kind of a nickel and dime objection hadn't been raised. We will be prepared to do it this evening.
MR. LOWE:  We made it clear on the record. We can't do any more than that.
THE COURT:  I think the word of the parties is clear on the record.
MR. LOWE:  Thank you, your Honor.
{3028}
(Whereupon, the following proceedings were had in the courtroom and presence of the jury:)
Q  (By Mr. Crooks) Mr. Lodge, insofar as your examination of the various vehicles which were involved in this case did you in fact raise or determine the presence of any fingerprints?
A  Yes, sir, I did.
Q  And on which vehicles did you raise fingerprints of useful value?
A  On four vehicles.
Q  And which were those?
A  The two automobiles assigned to Special Agent Williams and Coler, and a 1966 Chevrolet Suburban van and a 1967 Ford Galaxie.
Q  All right. First of all I'd like to go to the vehicle of Special Agent Williams. I hand you a picture of a vehicle which is marked as 9-A and ask if that is a photograph of the vehicle you're discussing?
A  Yes, sir.
Q  All right. Did you examine that vehicle, or you've already indicated you examined that vehicle for fingerprints. Did you find a fingerprint on the vehicle which was of useful value?
A  Yes, sir, there were several.
Q  And where did you locate the fingerprints that you did locate?
A  One fingerprint was, I developed on the inside door release handle on the driver's side.
{3029}
Q  All right.
A  Of the vehicle.
Q  I would hand you a card marked Exhibit --
MR. LOWE:  May we approach the bench, Your Honor, for a moment?
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE:  When Mr. Douglas testified about Government Exhibit 3, which is the fingerprint card of Mr. Robideau, am I right about the number?
MR. CROOKS:  Yes.
MR. LOWE:  He testified he took that on November 11, 1976. Mr. Ellison raised the question he did not believe we have ever received from the Government any copies of laboratory reports of fingerprint analysis or anything of that nature after November 11, 1976. I had him go and look specifically, and to our knowledge we have never received any such disclosure of scientific reports.
It's conceivable that the Government would have a copy with our initials on it, or would produce a copy that they'd disclosed to us, but at this point as best as we can determine we have no indication that the Government ever compared Government Exhibit 3 with anything and made an analysis. And we object to any reference to Government Exhibit 3 for analysis {3030} purposes if they have not disclosed to us any such written reports.
And I presume that there is a report if this witness is going to testify to it. Now, I stand to be corrected, but that's the way we understand it at this point.
MR. CROOKS:  Your Honor, with regard to this print, with regard to this fingerprint, Your Honor, the reason that this particular card is used was because Mr. Jacobs, who originally was going to introduce that, he had previously used that of Mr. Robideau. Inadvertently through no fault of anybody's shows up on jury duty and was sitting there and we obviously could not use Mr. Jacob's. So we used Mr. Douglas's card instead.
Counsel has been furnished with the examination of Mr. Robideau's prints and comparisons with the print beforehand. If counsel wishes, well, of this witness to compare Exhibit 3 with the card of the report that he had furnished them and make an examination right on the stand, we're prepared to do that if counsel wishes that done. But this is Mr. Robideau's print. Counsel's been furnished with that report a long time ago.
^The only reason we're changing cards is because the inadvertent error in getting Mr. Jacobs, who originally was going to be the witness, is servicing the jury, or with the jury.
{3031}
THE COURT:  Is that the marshal, deputy marshal?
MR. CROOKS:  Yes. Deputy marshall Jacobs who appeared for jury duty. And we obviously could not use him as a witness, so we got Mr. Douglas up with a different card. And it's the same prints of Mr. Robideau, and we're prepared to have this witness make an examination of the two different cards, tie them together as being Robideau's prints, and then we'll ask him for his opinion.
MR. LOWE:  Well, do I understand that this witness has compared Government Exhibit 3 with latent prints taken in place of Mr. Robideau's?
MR. CROOKS:  Yes. That's exactly what he's going to say.
MR. LOWE:  Am I correct in assuming that he has written reports of those comparisons?
MR. CROOKS:  John, what are you talking about?
MR. LOWE:  Does he have a --
MR. CROOKS:  He's comparing Robideau's records. He found Robideau's prints with the prints found on the door handle.
MR. LOWE:  Does he have a report?
MR. CROOKS:  They're the exact same prints that he previously used in a report. If you want him to make an examination on the stand and say that, I'll be more than happy to do it.
{3032}
MR. LOWE:  Do you understand my question? Do you understand the question I asked?
MR. CROOKS:  Yes, I understood your question.
MR. LOWE:  Did he make a comparison of Government Exhibit 3 with the other latents and prepare a report on it?
MR. CROOKS:  He didn't prepare a report.
MR. LOWE:  He has never prepared a report on it?
MR. CROOKS:  He could take a look at it in two seconds and tell you it's the same prints.
MR. LOWE:  Your Honor, I ask that counsel stop speaking so loudly and in front of the jury.
THE COURT:  Hold it down.
MR. LOWE:  As I understand it he is going to now compare 3 with latents, or is he going to report that in the past at some time he compared Exhibit 3 with latents and made an analysis?
MR. CROOKS:  He's going to testify that the print found on the door handle of the car was one of the prints contained on this card.
MR. LOWE:  On the basis of an analysis now or on the basis of an analysis that he has made in the past before coming here to Fargo?
MR. CROOKS:  Well, we can do it either way.
MR. LOWE:  Well, has he made it in the past?
{3033}
MR. CROOKS:  Well, of course he has.
MR. LOWE:  Then there must be a report, isn't there?
MR. CROOKS:  He did this with comparison in testimony when we had to switch the cards.
MR. LOWE:  Well, is there a written report?
MR. CROOKS:  No, there's no written report.
MR. LOWE:  That was my question. If you had just answered my question we would have been away from here eight minutes ago.
If there are no written reports I don't think there's any objection to them raising it. If there is a written report we'll find out about it. That's all I ask.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
Q  (By Mr. Crooks) Handing you again Exhibit No. 3. You testified earlier that you raised a print off of the door handle of Special Agent Williams' car. I hand you Exhibit No. 3 and ask if that is a fingerprint card which, with which you have made comparison?
A  Yes, sir.
Q  All right. And insofar as the examination of Special Agent Williams' car and the finding of the print did you find any comparabilities between that print and of the prints contained upon Exhibit No. 3?
A  Yes, sir. I found that the latent that I developed on the {3034} door handle inside of the automobile and the inked fingerprint appearing on this fingerprint card marked Exhibit 3 and bearing the name Robert Eugene Robideau were made by one and the same individual.
Q  Now, I would ask you did you make a similar comparison with another card also purportedly made by Mr. Robideau previous to the card that you have before you No. 3?
A  Yes, sir.
MR. LOWE:  Objection, Your Honor, improper foundation. Unless that card has been identified and proper foundation is laid it would be improper to ask any questions about it.
THE COURT:  Sustained.
Q  (By Mr. Crooks) Well, have you prepared a written report as to your conclusions pertaining to this specific card, Exhibit No. 3?
A  No, sir, I haven't.
Q  And why, what was the reason for that if you know?
A  Well, the comparison was made previously. I compared this against another card and, but as far as why there wasn't any formal report after the comparison with this print, why I don't know.
Q  Well, was the comparison done relatively recently at the request of our office?
A  Yes, sir.
Q  And the card that you had originally used, did you make a {3035} comparison between that and Exhibit No. 3?
A  Yes, sir, I did.
Q  All right. Now, insofar as your comparison of the print found on the door handle and the card you have before you what is your opinion as to the comparability?
A  Well, do you mean as far as the identification?
Q  Yes.
A  There's no doubt in my mind whatsoever.
Q  And what is the comparison, what print on Exhibit No. 3 or block was, or did you find comparable?
A  The left thumb, or the number 6 finger block.
Q  All right. Insofar as your examination, using Exhibit No. 3 again, did you also make an examination of the contents of Exhibit 47-A?
A  Yes, sir, I did.
Q  and did you find, or did you compare the prints found by yourself in Exhibit 67-A -- or 47-A, excuse me, with Exhibit 3?
A  Yes, sir, I did.
Q  And did you find any of them comparable?
A  Yes, sir, I did.
Q  And did you form an opinion as to whose fingerprints were contained and found on some of the prints found at least on Exhibit 47-A?
A  Yes, sir.
Q  And whose would those be?
{3036}
A  The latent prints developed on Exhibit 47-A and the inked fingerprints appearing on this fingerprint card, Exhibit No. 3 bearing the name Robert Eugene Robideau were made by one and the same individual.
Q  Do you recall how many prints you found in the Exhibit 47-A which were comparably with Mr. Robideau's prints?
{3037}
A  Offhand not exactly. I have that in my notes if you care for me to refer to them.
Q  If you would, please.
A  There were a total of 63 fingerprints and 28 palm prints identified with the prints of Robert Eugene Robideau.
MR. CROOKS:  Your Honor, at this time the United States will also offer into evidence pursuant to stipulation Exhibit No. 48.
MR. LOWE:  I believe we have entered into stipulation on that, Your Honor.
MR. CROOKS:  Your Honor, at this time I'd like to read the part of the file stipulation that pertains to this exhibit. "It is hereby stipulated and agreed by and between the parties that if Special Agent Earl J. Webb were called he would testify that on June 27, 1975 this exhibit was found in a white wall type tent near the scene where the bodies of FBI Agents Coler and Williams were discovered on June 26, 1975;
that said exhibit has been subjected to chemical analysis for purposes of raising latent fingerprints. Further foundation is waived.
Q  (By Mr. Crooks) I now hand you Exhibit No. 48 --
THE COURT:  48 is received in evidence.
Q  (By Mr. Crooks) -- and ask you if that is an exhibit with which you've made comparisons of the fingerprints contained on {3038} Exhibit 3?
A  Yes, sir.
Q  Insofar as the prints that you have found, or some of the prints, do you find any of them in any way comparable to the fingerprints contained on Exhibit 3?
A  Yes, sir.
Q  And what conclusions do you draw from that?
A  I found that 50 fingerprints and one palm print developed on Exhibit 48 and the ink fingerprints appearing on this fingerprint card marked Exhibit 3 and bearing the name Robert Eugene Robideau were made by one and the same individual.
MR. CROOKS:  Your Honor, if it please the Court, the United States will now offer into evidence Exhibit 43 pursuant to stipulation, being the latent, inked fingerprints of Darrell Butler.
MR. LOWE:  Are you going to read the stipulation, Mr. Crooks? I don't know whether you were planning to.
MR. CROOKS:  The stipulation being on the paragraph 18 of the written stipulation. "Government's Exhibit 43, fingerprint care of Darrell Dean Butler taken, Rapid City, South Dakota, by Deputy United States Marshall Ben B. Mahoney on December 1, 1975."
MR. LOWE:  Subject to the same deletion of material which doesn't relate to this trial as was done with Exhibit 3, there is no objection, Your Honor. I trust, Mr. Crooks, just {3039} take out this information which doesn't pertain.
MR. CROOKS:  I would hand the exhibit to the clerk. The government is willing to delete a certain descriptive data which is contained on the exhibit.
THE COURT:  Exhibit 43 is received.
MR. CROOKS:  Let the record show that the clerk has deleted the material indicated.
Q  (By Mr. Crooks) I now hand you Exhibit No. 43 and ask if that is a, or an exhibit that you have seen before?
A  Yes, sir, it is.
Q  And what is it?
A  Pardon?
Q  What is it?
A  It's a, Exhibit 43 is an ink fingerprint card bearing the name Darrell Dean Butler.
Q  I hand you Exhibit No. 13B and ask if that is one of the car that you examined during your fingerprint examination?
A  Yes, sir, it is.
Q  And did you develop any fingerprints on that vehicle?
A  Yes, sir, I did.
Q  And did you develop any fingerprints which correspond in any way to Exhibit No. 43?
A  Yes, sir, I did.
MR. LOWE:  Mr. Crooks, could you state for the benefit of the jury what the car is. I don't think we {3040} remember what the car is on that exhibit.
MR. CROOKS:  That's the 1967 Galaxie Ford.
MR. LOWE:  Thank you.
Q  (By Mr. Crooks) Did you make a comparison between the prints found and the prints contained on Exhibit No. 43, the Butler print card?
A  Yes, sir.
Q  And what opinion, if any, did you draw following your examination?
A  I found that one latent fingerprint, developed on the rear view mirror of this 1967 Ford Galaxie and the ink fingerprint appearing in the No. 7 block or the left index finger of this fingerprint card marked Exhibit 43 bearing the name Darrel Dean Butler was made by one and the same individual.
MR. CROOKS:  Your Honor, the United States would now offer by stipulation Exhibit No. 6, GUN OWNERS BOOK OF CARE, REPAIR AND IMPROVEMENTS. 46A, I'm sorry.
The stipulation being as follows:  "It is hereby stipulated and agreed by parties that on June 27, 1975 Special Agent, Special FBI Agent Earl J. Webb found this exhibit in the tent near the scene where the bodies of FBI agents Coler and Williams were discovered on June 26, 1975;
that said exhibit in in substantially the same condition as found but has been subjected to clinical treatment {3041} for the purpose of raising latent fingerprints. Further foundation is waived."
MR. LOWE:  No objection, Your Honor.
THE COURT:  46A is received.
Q  (By Mr. Crooks) I would ask you whether or not during the course of your fingerprint examination you examined No. 46A for the purpose of raising fingerprints?
A  Yes, sir, I did.
Q  And were you successful?
A  Yes, sir.
Q  And what fingerprints if any did you raise, or how many, excuse me?
A  There were a total of 19 fingerprints developed on Exhibit 46A.
Q  And did you make a comparison of any of those fingerprints with the fingerprint card that you previously referred to, Exhibit 43 being the fingerprint card of Darrell Dino Butler?
A  Yes, sir.
Q  And what were the results, if any, of you comparison?
A  I found that two of the fingerprints developed on 46A and the inked fingerprint appearing in the No. 6 block or the left thumb of this fingerprint card marked Exhibit 43 and bearing the name Darrell Dean Butler were made by one and the same individuals.
Q  During the course of your examination for fingerprints did you utilize either the original or a copy of Exhibit 38A?
{3042}
A  Yes, sir, I did.
Q  And did you make certain fingerprint comparisons utilizing at card?
A  Yes, sir.
Q  I'd first --
THE COURT:  We've reached the hour of 5:00 o'clock, Mr. Crooks.
MR. CROOKS:  I would think this would probably be as good a place to break as any, Your Honor. I can't finish up within a few minutes.
THE COURT:  Very well. Court is in recess until 9:00 o'clock tomorrow morning.
(Whereupon, at 5:00 o'clock, P.M. a recess was taken until 9:00 o'clock, A.M. on April 5, 1955.)