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

SA EVAN HODGE, Firearms and Tool Marks Identification Unit
VOIR DIRE, EJECTION PATTERNS {NOTE} A
TESTIMONY ON AR-15 COMPARISON FROM WICHITA B

MR. SIKMA:  Plaintiff calls Evan Hodge.
 EVAN HODGE,
being first duly sworn, testified as follows:
 DIRECT EXAMINATION
By MR. SIKMA:
Q  Please tell the jury your name.
A  Evan Hodge.
Q  And what is your occupation?
A  I am a Special Agent with The Federal Bureau of Investigation, and I am assigned to the FBI laboratory in Washington, D.C.
Q  And do you have any special training?
A  I am assigned to the Firearms and Tool Marks Identification Unit of the FBI Laboratory.
Q  And what do you do in that position?
A  As a specialist assigned to the Firearms and Tool Mark Identification Unit, I examine principally bullets and cartridge cases recovered at scenes of shootings, and compare them with weapons which are sent to me by various law enforcement jurisdictions.
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Q  Now, Mr. Hodge, have you had any special training to prepare you for this type of identification?
A  Yes, sir.
Q  And would you tell the Court and the jury what that is?
A  In preparing for the assignment that I am now in, I studied for approximately one year under the then 12 firearms identification specialists in the laboratory. During this year I read all the available literature in the field of firearms identification, I examined literally hundreds of weapons, thousands of bullets and cartridge cases. I conducted other exams relating to firearms identification, and I toured several of the New England weapons manufacturing facilities.
Q  Have you ever testified as an expert before?
A  Yes, sir.
{3177}
Q  Can you tell the jury what a firearms identification is?
A  Most simply put firearms identification is the ability to determine if a particular bullet or a cartridge case has been fired by a weapon to the exclusion of all other weapons in the world.
Q  Can you tell the jury how that is possible?
A  In the case of a bullet comparison, when the weapon is manufactured the inside of the barrel is cut with grooves which are given a twist so that when the bullet enters the barrel of a weapon it is forced, its outside surface is forced into these grooves. And this will give the bullet a spin as it's going down the barrel of the gun and provide it with stability like a top.
Now, as the bullet goes down the barrel of the weapon its outside surface is in direct physical contact with the inside surface of the barrel. So that if the bullet is recovered undamaged it will have markings on it from the inside of the barrel. In many firearms these markings will be consistent from shot to shot and it has been found over the years that they are unique in insufficient quantity to the weapon itself.
These markings will change from time to time throughout the firing of the weapon and through other actions that can cause changes inside the barrel of the gun, such as cleaning the weapon or if the weapon becomes rusted. In the case of {3178} cartridge cases, when the gun is fired, the cartridge case comes in violent contact with the mechanism of the gun. This mechanism, which is known as the breech, is the part that that keeps the cartridge cases from hitting the shooter. It's contained inside the weapon. The breech will have manufacturing marks from the machining and finishing process.
Many times these marks will be transferred to the soft metal of the cartridge case itself so that by comparison with a test fired cartridge case and a cartridge case recovered from some locality it can be determined if the matching marks, manufacturing marks are the same and if in fact they were fired from the same gun.
Q  I will show you what is in evidence as Government Exhibit 29A and I would ask you to point out to the jury if you would where these various places are, the breech and so forth.
A  Well, the breech of the weapon is on the face of this bolt which works back and forth inside the gun itself. That is the part of the weapon which comes in direct contact with the part of the cartridge case that we call the head, and that part which contains the primer.
Also, another identifying aspect is the firing pin itself. And the surface of that may become pitted or have grinding marks on it, and these also can be compared by test firing the weapon.
Another portion of the firearm which is used in firearms {3179} identification work is called the extractor, and that is a little hook which is on the face of the bolt and it literally grabs the cartridge case to aid in removing it from the weapon. So if it grasps the cartridge case hard enough it will leave a little dig mark in the cartridge case and this can be used in a comparison.
Q  I will show you what is marked as Government Exhibit 29-B. Can you perhaps take one of these objects out of Government Exhibit 29-B and show the jury in relation to the firearm how they fit and how you make your comparison.
A  The portion of the cartridge case which is flat, the circular is the head. It contains the primer which is a metallic insert and contains a small charge of explosive, which when hit by the firing pin causes a flame to start the gun powder burning. When the gun powder burns it pushes the bullet out of the barrel, and in like manner the cartridge case wants to go backwards.
It is from this backward motion that the breech face marks on the bolt of the gun are transferred to the soft metal of the primer. Where the primer hit the, was struck by the firing pin, there is a small indentation. And around the grooved rim at the head is where the little hook will grab the cartridge case to leave its marks if it grabs it sufficiently hard, which we call an extractor mark, and can be associated with a particular weapon by just comparing the mark left on various cartridge cases.
{3180}
Q  Does a cartridge casing, or a bullet always leave a mark that can be compared with a particular rifle?
A  No, it does not.
Q  So there are some instances where a rifle has fired a particular bullet or a cartridge casing has been extracted that you cannot compare with the particular rifle in question; is that correct?
A  That's correct. Some guns will not have a rough enough surface in these areas to leave identifiable marks.
There are times when the identifiable marks may be removed, either in the case of a bullet because of mutilation or in the case of a cartridge case if it's been out in the elements for a long time, and it gets very badly oxidized, the marks may be obscured.
Q  Okay. I would ask you to examine Government Exhibit 29-A, which is a rifle, and ask you whether or not you in fact had an opportunity to examine that particular rifle?
A  Yes, sir. My initials are on the identifying tag. Also they are scratched inside the trigger guard.
Q  Did you have an opportunity to examine the cartridge casings in Government Exhibit 29-B?
A  Yes, sir. They all bear my initials.
Q  Would you tell, in relation to your investigation in this case, would you tell the jury how the, in what ways the evidence came to you and what means you used to process the evidence which you received in this particular case.
{3181}
A  Yes, sir Government's Exhibit 29 I received from our resident agency in Pierre, North Dakota; and Government's Exhibit 29-B were personally delivered to me by Special Agent Cortlandt Cunningham in July of 1975.
Q  Now, would these cartridge casings for example have any marks on them when you received them?
A  Yes, sir.
Q  And what kind of marks would they have when you received them?
A  Well, the cartridge cases in Exhibit 29-B had marks from the breech of the weapon in which they were fired.
Q  I'm speaking about identifiable marks that you placed on there, or someone placed on there.
A  The slips of paper as I recall were with these items, and I have marked them with my initials. They all, three slips of paper all bear my initials.
Q  Okay. And what would you do with them when you received them from Mr. Cunningham for example?
A  I made a list of the items that I received among which Government Exhibit 29-B was, well, five items; and inventoried the items that I received and then made a comparison with any weapons that I received of like caliber.
Q  Did you give them a number or something so you could keep them separated from other items?
A  Yes, sir I marked the numbers on these items Q-91, 92, 208 {3182} 215 and 216 along with my initials. And these items are referred by those numbers in subsequent laboratory reports.
Q  Now, on the items that you compared with Government Exhibit 29-A, the M-1 rifle, in that particular case did you make any charts that compare or relate to cartridge casings which you found were fired in Government Exhibit 29-A?
A  Yes, sir. I had a chart prepared of the Government's Exhibit 29-A and other items which I compared against Government Exhibit 29-A.
Q  What other items did you compare against 29-A which you included in that chart?
A  I compared items listed in laboratory reports as Q-834, 835, 836, 837, 839 which were sent to me from Rapid City.
I compared items listed as 841, Q-842, Q-843 which were sent to me from Rapid City.
I compared items listed as Q-38, Q-35-B, Q-71, Q-75, Q-9, Q-11, Q-13, Q-14, Q-17, Q-21, Q-22, Q-23, Q-24, Q-27, Q-28, Q-29 and those are the items which are currently shown on the chart that I had prepared.
Q  I will show you what is marked for identification as Government's Exhibit 29-1, Can you tell me whether or not you recognize Government Exhibit 29-1?
A  Yes, sir.
Q  And what is Government Exhibit 29-1?
A  That is the chart of the comparisons with 29-A that I had {3183} prepared.
MR. SIKMA:  Your Honor, I'd offer into evidence Government Exhibit 29-1.
MR. LOWE:  No objection, subject to the record, Your Honor.
THE COURT:  29-1 is received.
Q  (By Mr. Sikma) Okay. I will put up Government Exhibit 29-1. Would you explain, using this chart, explain to the jury what tests you ran on Government Exhibit 29-A and the various items which are marked 29-B, 29-E and also 29-E in another group. Would you explain that to the jury.
A  Yes,sir. On receiving Government's Exhibit 29-A I examined it to make sure, first of all, that it was an operable weapon that was safe to fire.
I then selected ammunition from our storage room of 30-06 caliber and test fired Government's Exhibit 29-A into a large water tank so that I could recover both bullets and cartridge cases from the gun.
Upon completing that I then selected all of the 30-06 caliber cartridge cases and the 30 caliber bullets in the submission of items which I had received from Rapid City in connection with this case. I then made a microscopic comparison of the cartridge cases which I had fired in 29-A with the cartridge cases that I had received from Rapid City.
To do this I used a comparison microscope which is very {3184} simply two microscopes bridged together with a common eye piece so that you can view two objects simultaneously and make a side by side comparison of these objects. And the purpose of this comparison was to determine if the microscopic markings on the cartridge cases that I test fired in Government's Exhibit 29-A were the same as those on the cartridge cases, any of the cartridge cases which I had received from Rapid City.
Q  I would direct your attention to Government Exhibit 29-E and ask you whether these are the cartridge casings which you compared with 29-A?
MR. LOWE:  Your Honor, we'll stipulate that 29-E matches to the weapon, 29-A, if Mr. Sikma would just want to recite in summary fashion whatever it is about it is he wants to recite, rather than require a detailed explanation of the comparison. Because there's no contest that these were fired from weapon 29-A.
MR. SIKMA:  Your Honor, in light of what defense counsel has indicated I would state for the record that Government Exhibit 29-B was found pursuant to earlier testimony on the east side of the green house as it's located on Government Exhibit 71. And Government Exhibit 29-E is in two parts, one found approximately seventy-five yards south of the green house and the other part found with three items found near the green house.
I would also state that with regard to Government {3185} Exhibit 29-G which I am showing to the --
MR. LOWE:  We have not entered any stipulation as to 29-G or 29-F, and I assume you understand that?
MR. SIKMA:  I understand that.
MR. LOWE:  We'll stipulate as to 29-B and also as to 29-E. I don't know if you've gone into 29-B or not yet, but we'll stipulate to that also.
MR. SIKMA:  I have.
I would state for the record that in previous testimony Government Exhibits 29-G and 29, Government Exhibit 29-G was found by Special Agent Cunningham taken from SA Coler's vehicle; and 29-F was taken from SA Williams' vehicle.
Q  (By Mr. Sikma) Now, I would direct your attention to Government Exhibit 29-G and ask you to tell the jury what type of examination you performed on Government Exhibit 29-G.
A  Government's Exhibit 29-G consists of three .30 caliber bullets, or bullet fragments. In my examination of these items was to determine first of all their caliber. Next, the type of rifling in the barrel from which they were fired. After that to determine if these bullet, or bullet fragments had any marks on them that could be used to identify them with the weapon from which they were fired.
Q  And what if anything, do you have an opinion as to the, these items that you have before, Government Exhibit 29-G?
A  Yes, sir.
{3186}
Q  And what is that opinion?
A  That Government's Exhibit 29-G are 30 caliber bullets and bullet fragments, and that they were fired from a barrel which has four grooves with a twist to the right; and the dimensions of the grooves in the barrel and the number and the direction of the way they twist is the same as the barrel in 29-A.
However, there were not sufficient microscopic marks on any of the surfaces of 29-G to permit me to make any conclusion as to whether they had been fired from 29-A, or another rifle with the same rifling in this barrel.
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Q  I will show you Government Exhibit 29F and can you tell me whether or not you can make the same statement with regard to Government Exhibit 29F and Government's Exhibit 29F consists of approximately 12 .30 caliber bullet or bullet fragments, falls into the same category as 29C in that the rifling in these specimens is the same as that in the barrel of 29A and they are of 30 caliber so that I could not conclude because of a lack of marks in these items that they were fired in 29A. There was nothing to prove that they were or were not, but they could have been based on my observation.
Q  Now with regard to Government Exhibit 29G and 29F, I take it there is a distinction between your findings with regard to Government Exhibit 29G and 29F as opposed to Government Exhibit 29B and 29E?
A  Yes, sir
Q  And would you explain what the distinction is to the jury.
A  In preparing the chart for those items which in my opinion were definitely associated with 29A, in other words the microscopic markings were such that my opinion is they could have been fired in no other weapon, I had a line drawn between the box containing that exhibit and the weapon itself.
Where my findings were only that the bullet is consistent with having been fired but enough markings for positive conclusion the there are no lines drawn and the reason is out there, "similar rifling only".
{3188}
Q  In other words, there were enough marks on Government Exhibit 29G and 29F to say that it could have been fired from Government Exhibit 29A, is that correct?
A  Yes, sir.
Q  But you could not say to the exclusion of all other weapons that they were fired from 29A, is that correct?
A  Well, the exclusion of any other weapon with rifling of the same type.
Q  Now did you examine any other firearm which we have here in evidence of Government's Exhibit 29A, 30A, 31A, 32A, 33A, 34A, 35A, 36A, 37A, 41A, or 69A, could Government Exhibit 29G or 29F have been fired from any of those weapons?
A  No, sir. They're either of the wrong caliber or of the wrong type of rifling in the barrel, the weapons that we have here.
Q  So there are a number of .30 caliber rifles which could fire the same ammunition but which have different lands and g grooves in the inside of the barrel, is that a fair statement?
A  Yes, sir. But it's also the, the converse of that is also true too.
Q  What kind of firearm is Government Exhibit 29A.
A  That is a .30 caliber United States rifle designated as the M1.
Q  And what's the common designation for the type of ammunition which is fired from that weapon?
{3189}
A  30 aught six is the common caliber name for that type of ammo.
Q  Was there any particular organization, to your knowledge, which used that weapon in the past?
A  The United States Army did.
Q  I would ask you to examine that weapon, Government Exhibit 29A, and tell me whether or not this firearm has a serial number on it.
A  The serial number on the M1 rifle is right here at the base. It has been removed and restored.
Q  Do you know what the muzzle velocity, in other words, the speed of a bullet coming out of the muzzle when fired from an M1 rifle is?
A  That will vary with the bullet weight. For the most common load used in this type of rifle it's about 2700 feet per second.
Q  Can you tell me whether or not that weapon is a semi-automatic or an automatic weapon?
A  It is a semi-automatic weapon.
Q  Can you tell the jury what the difference is between a semi-automatic and an automatic weapon?
A  An automatic weapon will fire, assuming it's loaded, continuously as the trigger is held down. It's a machine gun. A semi-automatic weapon, the trigger must be pulled each time for the gun to fire and it will continue to fire as long as the {3190} ammunition holds out, each time the trigger is pulled.
Q  So all you have to do is pull the trigger and if there is ammunition in there it will fire, correct?
MR. LOWE:  Your Honor, I object to the form of the question. First of all, I don't know which weapon he's talking about; secondly, it implies if you pull the trigger it will keep firing. I don't think that's what Mr. Sikma was trying to communicate, if he's talking about --
THE COURT:  Objection to the form of the question is sustained.
Q  (By Mr. Sikma) I will show you what has been marked as Government Exhibit 30A and ask you whether or not you can identify Government Exhibit 30A. I will set Government Exhibit 30AA alongside here. Do you recognize that?
A  Yes, sir. I received that weapon from Special Agent Mike Gammage of the Bureau of Alcohol, Tobacco and Firearms.
Q  And where did you receive that from Special Agent Gammage?
A  In Washington, D.C.
Q  Do you remember what date you received it?
A  It was September the 12th, 1975.
Q  Did you receive any other firearms or parts of firearms on that date?
A  Yes, sir, I did.
Q  And what kind of a firearm did you receive from him along with that, if you did in fact?
{3191}
A  I received a Colt AR15 weapon in somewhat the same condition as Exhibit 30A is in.
MR. SIKMA:  Your Honor, Defense Counsel have indicated that they would stipulate to the chart, Government Exhibit 30-I and the --
MR. LOWE:  Your Honor, there are a number of these weapons and weapon components that are absolutely undisputed. We are aware of their connection. There is no need to go through detailed proof. I have given Mr. Sikma a list of those which we have no dispute on so he can simply make recitations for the record and I will acknowledge them, if Your Honor please, as he mentions each one. There's no need to go into detailed proof on these or even the nature of proof. We'll stipulate they were connected up by proper procedures.
THE COURT:  Very well.
What is the exhibit you just put up?
MR. SIKMA:  Government Exhibit 30-1, Your Honor, and I would offer that at this time.
MR. LOWE:  No objection, Your Honor.
THE COURT:  30-1 is offered, it's received, rather.
MR. SIKMA:  Your Honor, I would state for the record that this is the firearm which was found in a burned condition in Wichita, near Wichita, Kansas, on the turnpike and brought by Mike Gammage to Washington, D.C. to this witness. I would also state for the record from the stipulation that Government {3192} Exhibit 30C would be offered by stipulation at this time and would read, paragraph 14 of the stipulation between the government and the defendant, and that is, "Government Exhibit 30-AA is a look alike gun for Government Exhibit 30-A. It is a Remington, .308 Remington Game Master model 760 carbine. It is stipulated and agreed that Government Exhibit 30-AA is a replica of Government Exhibit 30-A;
"that Government Exhibit 30-AA may be introduced into evidence to establish the appearance of Government Exhibit 30-A prior to its being damaged. Further foundation is waived."
Government Exhibit 30-C is a charge out record of nonexpendable property. This property was charged out to Special Agent Coler.
"This record also shows that the rifle. Government Exhibit 36-A and 30-A were issued to Jack R. Coler and also that the last digit of 30-A is a 2, and shows both exhibits issued to Jack R. Coler on 5/23/75 at Denver, Colorado.
"Government Exhibit 31B is a property card reflecting the ownership of Exhibit 31-A which is a Smith and Weston, model 19, .357 magnum revolver, with two and a half inch barrel, serial number 3K10439 is owned by Ronald A. Williams.
"It is still stipulated and agreed that the following firearms were in the possession of Special Agent Jack R. Coler {3193} on June 26, 1975 when he entered Jumping Bull area shortly before noon and prior to his death, that is a .308 Game Master model 760 Carbine, serial number 6967042," which is Government Exhibit 30-A.
I would at this time also offer into evidence pursuant to stipulation Government Exhibit 30-C and I will also offer into evidence at this time Government Exhibit 31-B.
MR. LOWE:  I thought the purpose of the stipulation was to eliminate having to clutter the record with a lot of these documents. Unless something is contained on here which is probative of more than what we have in the stipulation, I would resist purely on the limit that we have already got 190 exhibits and I think having more in than are already covered by stipulation or are already necessary --
MR. SIKMA:  Your Honor, they have been stipulated to by Counsel and in an earlier agreement. I don't know if Counsel is withdrawing the stipulation at this time.
MR. LOWE:  I thought we stipulated the facts. This was Coler's weapon, it was assigned to him, he had it in his possession on June 26, I don't know what these documents add to that. If there is any other fact you want stipulated, just state it, we'll stipulate. There is no contest about the weapon, no intent to try to avoid any fact that the government wants to prove. Just state what it is and make an offer of {3194} proof and we'll stipulate to it.
MR. SIKMA:  I would just refer to paragraph 15 of the stipulation and offer the exhibit at this time, Your Honor.
THE COURT:  Would you read paragraph 15 again.
MR. SIKMA:  "Government Exhibit 30-C, charge out record of nonexpendable items, the record shows rifle 36-A and 30-A issued to Jack R. Coler and the last digit of 30-A is 2, shows both exhibits issued to Jack R. Coler on 5/23/75 at Denver."
MR. LOWE:  That's exactly what we offered to stipulate. That's why I don't know why we need the documents.
THE COURT:  The stipulation refers to Government Exhibit 30-C and unless we have the exhibit it doesn't --
MR. LOWE:  Your Honor wants to do it, I don't care. Either way.
THE COURT:  30-C is received.
What about 31-B?
MR. SIKMA:  I will make that offer when we get to it. I have read the stipulation, Your Honor, but I will make the offer when we get to the next exhibit.
THE COURT:  Very well.
Q  (By Mr. Sikma) With regard to 30-B, would you briefly summarize for the jury what examination you made with regard to 30-B and 30-A and what comparisons you made.
{3915}
A  I received 30-B in the condition that it is now in, with the exception that there was a bolt inside the weapon itself. Appears to be missing. But that bolt was the item which I examined and I took a piece of lead and made an impression of the surface of these bolts -- there it is -- and the firing pin which is still intact and then compared the impressions which I took from this bolt with Government Exhibit 30-B. And the two photographs below are taken through the comparison microscope and show some of the marks which are present and upon which I based my conclusion that Government's Exhibit 30-B was indeed fired in Government's Exhibit 30-A.
Q  Government Exhibit 30-1 refers to 30-B for the record as having been found on the ground at the rear of Coler's car and is Q 336, and it was opinion, as I understand it, that Government Exhibit 30-B was fired in Government Exhibit 30-A, to the exclusion of all other firearms, is that correct?
A  Yes, sir.
Q  What kind of -- I'll withdraw that question.
I'll show you Government Exhibit 30-AA. Are you familiar with that type of weapon?
A  Generally speaking; yes, sir.
Q  And do you know any particular group that uses that weapon. or any organization that uses that weapon?
A  Well, the FBI issues this particular weapon to its field officers in limited quantities.
{3196}
Q  And I take it, is it fair to state as stated earlier, that Government Exhibit 30-A was, prior to the time it was burned, a similar type of condition or looked similar to Government Exhibit 38-A?
A  Yes, sir. It is the same Remington Model 760 carbine and the same type.
Q  I would show you what is identified as Government Exhibit 31-A. Have you seen that before?
A  Yes, sir.
Q  I will show you also Government Exhibit 31-D, 31-E. Are you familiar with Government Exhibit 31-D and 31-E?
A  (Examining) Yes, sir.
Q  Now, did you make a comparison between 31-D and 31-E and Government Exhibit 31-A?
A  Yes, I did.
MR. SIKMA:  Your Honor, I would offer into evidence Government Exhibit 31-1.
MR. LOWE:  No objection, your Honor.
THE COURT:  Exhibit 31-1 is received.
(Plaintiff's Exhibit No. 31-1, having been previously duly marked for identification, so offered in evidence, was received.)
Q  (By Mr. Sikma) Would you tell the jury what the results {3197} of your comparison, Government Exhibit 31-A and 31-D and E, what the results of that comparison were?
A  Yes, sir. The comparison I conducted between cartridge cases which I fired in 31-A and compared with the cartridge in 31-E and the six cartridge cases in 31-D, my conclusion was that 31-E and 31-D were fired in 31-A, based upon the configuration of the firing pin impression in the test cartridge cases that I fired and the items, 31-E and 31-D.
MR. LOWE:  That's on our stipulation, your Honor, so there is no objection.
THE COURT:  Very well.
MR. SIKMA:  Your Honor, it is also stipulated that Government Exhibit 31-A is the firearm belonging to Special Agent Ronald A. Williams; and that Government Exhibit 31-A was in his possession on June 26th, 1975, when he entered Jumping Bull Hall shortly before noon prior to his death on that date.
I would at this time, pursuant to the stipulation read earlier, offer into evidence Government Exhibit 31-B.
THE COURT:  31-B is received.
(Plaintiff's Exhibit No. 31-B), having been previously duly marked for identification, so offered in evidence, was received.)
++Q  (By Mr. Sikma) I would like to point out or ask you to point up something on the chart. You have on the chart, that {3198} Government Exhibit 31-E was from Coler's car and area; and you have a Q number under that, 343; and on the other 31-D you have "From cabin at Al Running's property," Q2126 to Q2131.
Now, did you -- are you yourself knowledgeable of those facts, or is that information that you received by some other means?
A  That is the information that I received as to the location of the recovery of these items. I have no personal knowledge of where they were recovered, that is the way the evidence was sent to me and set out in the communications covering its being sent to me.
Q  Now, once again, the Q numbers, who assigned those Q numbers to the various items in Government Exhibit 31-1?
A  I did.
Q  Now, is it correct that you assigned one Q number for each item?
A  Yes. We tried to do that, wherever possible.
Q  I will show you what is marked as Government's Exhibit 32-A. Can you tell me what Government Exhibit 32-A is?
A  Yes, sir. It is a 30-30 caliber Marlin rifle.
Q  And did you make a comparison with items in Government Exhibits 32-A with other items of evidence?
A  Yes, I did.
Q  And would you state for the record what those items are?
A  I compared Government's Exhibit 32-A with items I assigned {3199} Q No. 93, 94, 129, 2531, 2532.
Q  Did you also make a chart of the comparison with Government Exhibit 32-A with those items?
A  Yes, I did.
MR. SIKMA:  Your Honor, I would offer into evidence at this time Government Exhibit 32-1.
MR. LOWE:  No objection, your Honor.
THE COURT:  32-1 is received.
(Plaintiff's Exhibit No. 32-1, having been previously duly marked for identification, so offered in evidence, was received.)
Q  (By Mr. Sikma) Would you tell the jury what the results of the comparison between 32-B and 32-G and Government Exhibit 32-A were?
A  That the cartridge cases in 32-B and the cartridge cases in 32-G were fired in 32-A.
Q  Now --
MR. LOWE:  (Interrupting) That's stipulated, your Honor, also.
THE COURT:  Very well.
Q  (By Mr. Sikma) Now, how many different comparisons did you make on the items found in or near the green house, Government Exhibit 32-B, what comparisons did you make on that particular -- on those particular Q numbers?
A  On the items that are in 32-B?
{3200}
Q  Yes.
A  Well, I simply compared them with test cartridge cases that I fired in 32-A and formed my conclusion from a study of the microscopic marks on those cartridge cases with the items in 32-B.
Q  Now, these items, Q93, Q94, Q129, and Q127 are all grouped together in one group, 32-B. Why are they grouped together in one group?
A  Because they were found in the same general location.
Q  There are some numbers missing in between. Why are the numbers missing in some of those instances?
A  They were probably cartridge cases of a different caliber, or which were not identified with 32-A.
THE COURT:  The Court will recess until 3:45.
(Recess taken.)
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(Whereupon, the following proceedings were had in the courtroom without the hearing and presence of the jury:)
THE COURT:  May the jury be brought in?
MR. LOWE:  Your Honor, we were going to take up Exhibit 34-I, the voir dire on that, and at some point without the jury, and Mr. Sikma and I thought this would be a convenient time because I don't exactly know when they'll get to Mr. Hodge on it, But it may be before we recess, Your Honor.
MR. SIKMA:  It would be fairly soon, Your Honor.
THE COURT:  All right. You may.
MR. LOWE:  May I voir dire?
THE COURT:  You may.
MR. LOWE:  Do you have Exhibit 34 -- you have it there
Mr. Lodge, is it Mr. Lodge or Special Agent Lodge?
THE WITNESS:  Either one, sir.
MR. LOWE:  Okay. You are a special agent?
THE WITNESS:  Yes.
MR. LOWE:  I show you a Government exhibit, 34-I, and ask you if you did not prepare that on the basis of some test you made on, I think it was, five different AR-15's?
THE WITNESS:  Yes,
MR. LOWE:  Am I correct, first of all, that they were AR-15's as opposed to M-16's?
THE WITNESS:  They were both.
{3202}
MR. LOWE:  They were both, I see. And do you know which ones are which on your color pattern?
THE WITNESS:  I can relate to my notes and identify which is which.
MR. LOWE:  Will you do that, please.
THE WITNESS:  Weapon number 1, which is blue color coded, is an AR-15.
Weapon number 2, which is a black color coded, is an AR-15.
Weapon number 3, which is green color coded, is an AR-15 which has the M-16 adaptation.
MR. LOWE:  Well, now when you say it has the "adaptation" is it an M-16 or an AR-15?
THE WITNESS:  Well, the mechanism is the same, sir, except for the trigger device which is altered to fire fully automatic and has the selector switch for the full automatic for motive fire.
MR. LOWE:  But my question is:  Was it an M-16 or was it an AR-15?
THE WITNESS:  Well, the M-16 is an AR-15 with full automatic capability.
MR. LOWE:  I understand that. The physical hardware which is called an AR-15 is different from the physical hardware which is called an M-16 in that there is a full automatic capability and a selector switch on the M-16.
{3203}
THE WITNESS:  Which does not affect the ejection pattern of the gun.
MR. LOWE:  My question is:  Is the piece of hardware that has full automatic capability at any time properly called an AR-15, or is it only properly called an M-16?
THE WITNESS:  It is called a military M-16,
MR. LOWE:  Has this ever been called by anybody an AR-15 when it has full automatic capability?
THE WITNESS:  It could be.
MR. LOWE:  Not could be, I know that you could call an elephant this, but it wouldn't make an elephant out of it. My question is --
MR. SIKMA:  Your Honor --
MR. LOWE:  I think it's quite obvious this witness is an expert and he knows what I'm asking and he's evading.
MR. SIKMA:  Your Honor, I'd object because if it is called that on certain occasions that answers the question. He asked if it ever could be and he answered --
THE COURT:  Proceed.
MR. LOWE:  My question is not whether you could call it an AR-15. To your knowledge has any respectable firearms person ever called an M-16 an AR-15 properly?
THE WITNESS:  I don't really know, sir, if they have or not.
For the purposes of this, if you prefer we'll call it {3204} an M-16 if it's fully automatic and has the Government stamp on it.
MR. LOWE:  I only want it called that if that's the proper designation. That was number 4; is that right?
THE WITNESS:  Number 4 is, yes, U.S. rifle.
THE COURT:  What was number 3?
MR. LOWE:  What was number 3, is that also an M-16?
THE WITNESS:  Number 3 is, too, yes. M-16.
MR. LOWE:  How about number 5?
THE COURT:  Number 4 was, excuse me?
THE WITNESS:  Number 5?
THE COURT:  Just a moment. You had gone through number 3 which was color coded green. You had not given any testimony on number 4.
THE WITNESS:  I'm sorry, Your Honor. Number 4 is color coded yellow and that is an M-16. And number 5 is color coded red and that is an M-16.
MR. LOWE:  All right. Now, when you conducted these tests you conducted them firing at shoulder position and also at hip position; is that correct?
THE WITNESS:  Yes, sir.
MR. LOWE:  And utilizing Government Exhibit 34-AA, which I represent to you, I presume you probably know has been identified as an AR-15, when you say at shoulder level I presume that you lodged the butt up against your shoulder, held the {3205} gun parallel to the ground approximately and fired off, I guess it's ten shots; is that correct?
THE WITNESS:  I forget how many we had loaded in the clip. I think we fired each weapon twenty times from each position if I am correct. But that is the position that it was fired from, from the shoulder, yes, sir. Regular --
MR. LOWE:  All right. With the weapon parallel to the ground?
THE WITNESS:  Yes, sir.
MR. LOWE:  It was not pointing down, it was not pointed up as near as you could do it, to the limits of your eyeballing it in it was parallel to the ground when you fired?
THE WITNESS:  Yes. We were shooting into a sandbox at some distance away at approximately eye level target.
MR. LOWE:  I presume also that you did not turn the weapon on its axis in any way, but rather tried to keep the vertical axis of the magazine and the handle on the weapon with the actual vertical as you were firing so that the weapon was not turned in any direction either?
THE WITNESS:  That's correct.
MR. LOWE:  All right. And in firing from the hip position I trust you did essentially the same in terms of the vertical and horizontal axis of the gun, that is that it was fired at the level and it was fired with the gun substantially in the vertical plane except that you were holding it at hip {3206} level when you fired it; is that correct?
THE WITNESS:  Yes.
MR. LOWE:  Now, because I do not have colors on my -- would you again just designate which colors these are. You say the yellow, the green, yellow and red are the M-16; is that correct?
THE WITNESS:  The last three, yes. Green, yellow and red. 3, 4, and 5.
MR. LOWE:  All right. Now, can you tell me first of all, I think this may be self-obvious but we're not experts and you are, on this AR-15 I'm holding Government Exhibit 34-AA, there appears to be a little portal on the side here, on the right side of the weapon directly above the slot in which the magazine fits, and I ask you whether that is the ejection portal out of which expended cartridge cases come when you fire the weapon?
THE WITNESS:  Yes, it is.
MR. LOWE:  All right. And that is on a spring of some sort so that it is thrown open I presume by the cartridge as it is ejecting and encloses behind the cartridge?
THE WITNESS:  It is thrown open by the bolt as it comes forward. And then stays open until it's manually closed.
MR. LOWE:  So that when you are firing the weapon, once you start firing would this stay open until you manually close it, is that what you are saying?
{3207}
THE WITNESS:  Yes.
MR. LOWE:  All right. When you are firing does the expended cartridge case strike this door as it ejects, or can you say?
THE WITNESS:  The door is folded down out of the way. It's flapped down.
MR. LOWE:  All right. Does it fold down all the way flat?
THE WITNESS:  As I recall it folds down pretty close to all the way. Although I'm, it may vary with some models, but it certainly has to be down out of the way.
MR. LOWE:  Now, I gather from the data that you have provided through Government Exhibit 34-I and information which we have received informally from the Government that you determined that on, let's take one of the weapons, the cartridge ejected in a generally -- some of the cartridges ejected generally towards the front as well as the right, and then in a pattern that was in the right front quadrant, if I can call it that, from the ejection portal; is that a fair statement?
THE WITNESS:  Yes. Some of them did go forward.
MR. LOWE:  And as to some of them, they ended up all in the rear quadrant, in fact very much to about the 45 degree angle to the rear on one or two of the weapons; isn't that also true?
{3208}
THE WITNESS:  Yes. Well, weapon number 5 for instance, which is color coded red, I'm sorry I'm mixing up my ammunition, the five weapons did cover an area of almost 60 degrees to the front and almost 60 degrees to the back. There was quite a range.
MR. LOWE:  Did you make any tests to see what effect on the ejection pattern, or either in distance or in direction would be affected if you aimed the gun below the parallel at an angle of, let's say, between 10 and 45 degrees below horizontal? Did you run those tests?
THE WITNESS:  All the shooting that I did was from the horizontal.
MR. LOWE:  And would it be fair for me to say as an expert that you would not be prepared to offer an opinion on the pattern, either in direction or distance that would result from firing at anywhere from 10 to 40 degrees below the horizontal without actually running tests to determine that?
THE WITNESS:  Well, not if you want to get extremely specific. In general I would be of the opinion that it would not add any increase in distance than that what I've already seen.
It could possibly change the location or shorten the distance, but I don't think it would have any appreciable, add {3209} any appreciable distance to the distance that the cartridge case would be ejected. Like I don't think it would double it or anything like that.
MR. LOWE:  It might three or four feet for example?
THE WITNESS:  It could. Another gun might add three or four feet.
MR. LOWE:  All right.
THE WITNESS:  I only tested five. But in general I don't think there would be any gross significant change.
MR. LOWE:  All right. Based on your examination of those five weapons would you be in a position to offer an expert opinion as to what the ejection pattern would be on a weapon which is called Exhibit 34-AA without testing it?
THE WITNESS:  I would be of the opinion from the tests that I conducted --
MR. LOWE:  My question is:  Would you be able to offer an expert opinion as to what the ejection pattern would be like on this weapon based on the tests that you ran on the other five weapons?
THE WITNESS:  Based on those tests it would fall someplace in that general area or close to it.
MR. LOWE:  Isn't it true that what you can really tell from the tests that you ran the following:  One, on an AR-15 or an M-16, which is fired at the horizontal when the vertical plane is maintained, that the shells ejected generally to the {3210} right of the weapon? That's the first thing you could determine that, couldn't you?
THE WITNESS:  Yes, sir.
MR. LOWE:  Number two, that different guns tend to favor different ejection patterns inasmuch as the five that you tested fairly disparent test patterns so that they is a variation of some significance in the location as to different guns you tested; isn't that true?
THE WITNESS:  Yes, And to add to that, there also was a difference in the ammunition as versus U.S. military to the commercial.
MR. LOWE:  All right. What kind of ammunition did you use to test with?
THE WITNESS:  I used both military and commercial ammunition to see if there was any difference.
MR. LOWE:  I 'm sorry, you used what? I didn't hear what you said.
THE WITNESS:  I used both United States military ammunition and the Remington commercial ammunition.
MR. LOWE:  Did you note on here, or do you, can you determine from your notes as to which rounds are which?
THE WITNESS:  The ones which are color coded red are the military ammunition. The dots which are color coded blue is the commercial ammunition.
MR. LOWE:  All right. Now, let me ask you this:  {3211} If there were hand loaded, reloaded rounds, then that might give an entirely different pattern of ejection, might it not, if it were a high charge for example or a low charge?
THE WITNESS:  I would expect that the lower the charge the further that the cartridge case would be ejected because it would not give as much energy to the recoil mechanism of the gun. And in like manner a higher velocity round may kick it a little further.
{3212}
MR. LOWE:  Let me ask you this:  When you fire the gun at the horizontal and with the vertical plane maintained vertical, does the round come out in an upward arc, does it come out exactly on the horizontal or does it come out in a downward direction when it ejects?
THE WITNESS:  In the rounds that I observed, it comes out fairly flat. Possibly with a slight arc but generally speaking fairly flat out of the weapon.
MR. LOWE:  When you say flat, you mean out horizontally approximately out of the port?
THE WITNESS:  Yes, sir.
MR. LOWE:  So that as to any distance that is obtained, it is based on the velocity of the round as it comes out, the cartridge and where it lands?
THE WITNESS:  Yes, sir.
MR. LOWE:  Do the results of your tests do any more than confirm what you would have just speculated from a right hand ejection port on a weapon when it ejects cartridges that have been expended?
THE WITNESS:  Not significantly. I had not thought that it would throw the cartridges quite as far forward of the shooter as I found on my test. Other than that one aspect; no.
MR. LOWE:  May I just confirm for a moment, Your Honor?
{3213}
THE COURT:  You may.
MR. LOWE:  I have no further questions, Your Honor. I don't know if there is any cross-examination voir dire.
MR. SIKMA:  I'll ask my questions when the jury is present, Your Honor.
MR. LOWE:  May I be heard on my objection, Your Honor?
THE COURT:  You may.
MR. LOWE:  This witness has testified that these tests were made with the gun at the horizontal. Now by any fair reading or by any even remote reading of what Dr. Noguchi testified to, nobody shot these two agents with the gun at the shoulder and at the parallel, and in fact as to Agent Coler who was on the ground, nobody shot them with the gun at the hip level. As to Agent Williams, we just simply don't know whether it could possibly have been fired at the hip or possibly even the shoulder level. There is simply no evidence whatsoever.
There is no evidence upon which this jury could conclude that the weapon, if indeed it was an AR15 to begin with that was fired, which ejected the cartridge into the trunk of Coler's car, if that is how the weapon, the cartridge got there, there is no way for the jury to conclude from the evidence in this case or even to infer properly that that weapon was fired on the level. In fact, the inference is to the opposite and that would be if the .223 was fired in an AR15 {3214} aimed at these agents that was fired in a downward manner and this witness admitted he can't, did not test the weapon under those circumstances. He cannot say, it might have thrown it further, it might have thrown it shorter. By just logic Your Honor can see by changing the elevation the way that round comes out could change the direction and where the drop and the other factors.
In addition there is at least some testimony about reloading capability. This witness admits he tested only government and commercially available ammunition and that factor could change where the pattern resulted here.
And on top of that we have three M16's which are not AR15's themselves but have some differences in the mechanism. I suggest that while this witness may think that that makes no difference, that this witness has not tested enough rounds in enough weapons by his testimony to be able to say on the basis of two AR15's and three M16's that the mechanisms change between automatic and full automatic in the M16 would not somehow affect the ejection pattern.
For all of these reasons we believe that the government has failed to provide any foundation upon which the evidence would be relevant in this case or something which the jury could probably consider as evidence.
It also says nothing that the jury does not already know and that is a right hand ejection weapon is going to throw {3215} rounds out to the right and we're willing to offer, to stipulate or have the witness testify that the rounds come out generally to the right and that they come out generally on the horizontal and then go some distance, depending on various factors.
MR. SIKMA:  I have made my argument, Your Honor. I don't think that's said has changed my opinion.
THE COURT:  Do you have an opinion as to whether there is any difference in the operation of the AR15 and the M16 except for the selector trigger device on it?
THE WITNESS:  Well, the selector trigger allows the AR, M16 to be fired fully automatic.
THE COURT:  I understand that.
THE WITNESS:  I tested the weapon the semi-automatic mode of fire and the mechanism in that respect is essentially the same, the same weapon, only the selective switch has been added to allow the bolt, the weapon to fire full automatic. So I do not see how it would affect the way the fired cartridge case is ejected from the gun.
THE COURT:  Is that your opinion? You do not have an opinion?
THE WITNESS:  Yes, sir. That would not affect it appreciably.
THE COURT:  Would it affect it at all?
{3216}
THE WITNESS:  Not that I can see. No, Your Honor.
THE COURT:  Well, if I were a defense lawyer I could have a lot of fun with arguing this case. But it seems to me it's a question of, it's a question of weight and that the evidence of the test is relevant for whatever weight that it may have. But certainly there are some holes in it as far as its weight is concerned.
Defendant has made his record and the Court will stand on the ruling that it's made.
MR. LOWE:  That's all we have, Your Honor, without the jury.
THE COURT:  The jury may be brought it.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
THE COURT:  As the jury probably surmised, the delay again was due to a legal question that arose in this case. It arose with respect to testimony expected to be elicited from this witness and it was necessary the Court go into it before the jury returned.
You may proceed.
MR. SIKMA:  Your Honor, the government and defense counsel have agreed that for a number of these items to which there is no objection we are rather going to refer to items which are already in evidence, we are going to present this witness' testimony simply with regard to the charts rather than {3217} going into all of the items of evidence.
Q  (By Mr. Sikma) I will show you what has been marked as Government's Exhibit 33-1 and ask you whether or not you recognize Government's Exhibit 33-1?
A  Yes, sir.
Q  And is that a chart that you made in relationship to the examination of items with Government Exhibit 33A?
A  Yes, it is.
MR. SIKMA:  Your Honor, I would offer Government's 33-1 into evidence at this time.
THE COURT:  Any objection?
MR. LOWE:  Just hold up the chart. I'm trying to remember.
Subject to the record, we have no objection, Your Honor.
THE COURT:  Very well.
33-1 is received.
Q  (By Mr. Sikma) I direct your attention to Government Exhibit 33-1 and I will draw your attention to the notation there which is 330. What does that particular box in Government Exhibit 33-1 relate to, what does that represent?
A  33C is a .44 magnum bullet which was recovered, which I received as having been recovered from the notation and from my examination of 33C in comparison with test bullets that I fired in 33A, it is my opinion that 33C was fired from 33A.
{3218}
Q  The notation there reads that item was Q1 taken from the body of Special Agent Williams.
Now you were able to make a positive identification on Q1, 33C, is that correct?
A  Yes, sir.
Q  I would also now refer you to the square marked 33F. Would you tell the jury what that is?
A  Those are two other .44 magnum caliber bullets which my opinion is that they were fired from Government's Exhibit 33A.
Q  And the notation there is that it was taken from Special Agent Williams' car. Now they are Q12 and Q26, is that correct?
A  Yes, sir.
Q  Now the remainder of the items were shell casings taken from the scene, Government Exhibit 34, or 33B, from the 1967 Ford Galaxie, 33D; from the 1966 Chevrolet Suburban, 33E, and near the white house adjacent to the crime scene, Government Exhibit 33G and you also conducted a comparison with those items. What type of comparison did you make between those objects and Government Exhibit 33A?
A  I made a comparison of those cartridge cases in 33B, D and E and G with the cartridge cases which I fired in Government's Exhibit 33A, and based upon the microscopic marks appearing in the test cartridge cases which I fired and the markings appearing on the cartridge cases in those exhibits, My opinion is that they were all fired in 33A.
{3219}
Q  Now is the same true of Government Exhibit 33B which was found 75 yards past the culvert on the road to Oglala Lake leading into hills, is the same true of 33B as was true of 33, the other cartridge casings found relating to 33A?
A  Yes. 33H in my opinion was also fired in 33A.
Q  Now I would direct your attention to 33K and 33J. Would you relate to the jury what your findings were with regard to 33K and 33J?
A  33K and 33J are .44 caliber bullets which contain rifling like that produced by the barrel of the rifle, Exhibit 33A consists of 12 grooves twisting to the right. The connection is only that 33K and 33J could have been fired from 33A or from another similarly rifled barrel.
Q  Now 33A is of what rifling did you say?
A  12 grooves cut inside the barrel twisting to the right.
Q  Did you measure the grooves?
A  Yes, I did.
Q  Did the measurements match with Government's Exhibits 33K and 33J?
A  Yes, sir.
Q  I would direct your attention to what is marked as Government Exhibit 36-1 and ask you whether or not you recognize Government Exhibit 36-1?
A  Yes, sir, I do.
{3220}
Q  Did you prepare this chart, or was it prepared under your direction?
A  It was prepared at my direction.
Q  And does it relate to Government Exhibit 33-A -- or excuse me, 36-A?
A  Government Exhibit 36-A, yes, sir.
MR. SIKMA:  I would offer into evidence Government Exhibit 36-1, your Honor.
MR. LOWE:  No objection.
THE COURT:  36-1 is received.
(Plaintiff's Exhibit No. 36-1, having been previously duly marked for identification, so offered in evidence, was received.)
Q  (By Mr. Sikma) Would you relate to the jury what examinations you made with regard to Government Exhibit 36-B and 36-A?
A  I again testified that Government's Exhibit 36-A is a Remington Model 870 shotgun, and I compared the test fired shot shell from 36-A with 36-B which was the fired shot shell; and the marks on the primer area of the shot shell which I received on 36-A are identical to the marks on the firing area of the shot shell, 36-B; and it is my conclusion that 36-B was fired in 36-A.
MR. SIKMA:  Your Honor, we have a stipulation with regard to Government Exhibit 36-A, that it is stipulated and agreed that Government Exhibit 36-A, a Remington Model {3221} 870 shotgun, 12 gauge, Serial No. SO -- excuse me -- S043910V, was in the possession of Special Agent Jack R. Coler on June 26th, 1975, when he entered the Jumping Bull Hall area shortly before noon and prior to his death. It is stipulated and agreed that if the custodian or other qualified witnesses of the Denver FBI Property Documents were called he would testify that said firearm was checked out to Special Agent Jack R. Coler.
It is further stipulated that said firearm was in the possession of FBI Agent Jack R. Coler shortly before noon, June 26, 1975, when he entered the Jumping Hall area.
Q  (By Mr. Sikma) I will show you what is marked as Government Exhibit 37-1 for identification, and ask you whether or not you recognize it?
A  Yes, I do.
Q  Is this a chart also which you prepared with relation to Government Exhibit 37-A in your examination at the FBI Laboratory in Washington?
A  It is a chart that I had prepared, yes, sir.
MR. SIKMA:  Your Honor, I would offer into evidence Government Exhibit 37-1.
MR. LOWE:  No objection Your Honor.
THE COURT:  37-1 is received.
(Plaintiff's Exhibit No. 37-1, having been previously duly marked for identification, so offered in evidence, {3222} was received.)
Q  (By Mr. Sikma) I would direct your attention to Government Exhibit 37-1 and ask you with regard to the box denoted as 37-B from Williams' car, Q20, what comparisons you made between Government Exhibit 37-A and 37-B?
A  I test fired .45 caliber ammunition in 37-A into a water recovery tank and recovered the bullets, cartridge cases. I then compared those bullets that I fired with the .45 caliber bullet which is Government's Exhibit 37-B; and based upon my observations under the comparison microscope, I concluded that Government's Exhibit 37-B was fired from Exhibit 37-A.
Q  Now, is that a comparison which is made to the exclusion of all other firearms?
A  Yes, sir.
Q  I notice on Government 37-C which depicts two items found on the east side of the green house, one of those appears to be an unfired round. Can you explain what that is?
A  Yes. This is what we would call commonly a misfire. In other words, the firing pin struck the primer of the cartridge, but it either did not strike it with sufficient force to make the cartridge go off or the priming compound in the cartridge was not of sufficient quantity to make it go off, so it did not fire the cartridge. It did --
Q  (Interrupting) Go ahead.
A  It did, however, leave an impression of the firing pin in {3223} the primer itself so that impression could be compared with the weapon or cartridges that were test fired in the weapon.
Q  The photographs, you have what appear to be photographs under designated Q123 and Q7. What are those photographs, would you take the -- and if it is necessary, would you take that pointer there and point out the comparisons which you made so the jury can see what comparisons you made with regard to those items?
A  The photograph on the left, marked Q236, Q123, contains the circle which is the whole head of the primer itself. That's the portion of the cartridge that the firing pin strikes. The indentation in that primer is caused by the firing pin.
Now, what Q -- this photograph, Q123 and Q7 represents is essentially some of the microscopic marks that I saw underneath the comparison microscope; and these markings, the parallel markings that you can see are caused when the cartridge case recoils against the breech. It is what is called breech case firing.
The line down the middle separates the two objects optically so that the one, the cartridge case on the right is the one I test fired, and the cartridge case on the left is the one which I received as having been recovered from the east side of the green house in 122.
Q  I would now direct your attention to the photograph, or really two photographs in the right lower, lower right corner {3224} of that Exhibit 37-1, and ask you, what do those photographs depicted by Q214 and K7, what are they photographs of?
A  Q214 is the misfired cartridge, and this is the partial firing pin impression which was in the primer of that cartridge.
You will notice the light is bouncing off the area around that indentation, indicating that it was not a full impression as is on the photograph on the right of K7; but you can see the grinding marks on the shape of the firing pin -- in the shape of the firing pin are the same.
Q  And what is the photograph on the lower left-hand side?
A  Those are the microscopic markings which are left on the surface of the bullet by the barrel of the gun, and the matching up of those microscopic markings is what we base our opinion on in firearms identification, that they coincide essentially.
Q  I will show you what is marked as Government Exhibit 41-B for identification, and ask you whether or not you recognize that?
A  Yes, sir, I do.
Q  And is Government Exhibit 41 -- excuse me 41-1 another chart which you prepared with relationship to Government Exhibit 41-A and 41-B?
A  Yes, it is.
MR. SIKMA:  Your Honor, I would offer into evidence Government Exhibit 41-1.
MR. LOWE:  No objection, Your Honor.
{3225}
THE COURT:  41-1 is received.
(Plaintiff's Exhibit No. 41-1, having been previously duly marked for identification, so offered in evidence, was received.)
Q  (By Mr. Sikma) Again would you tell the jury what comparisons were made in the .22 caliber rifle designated as Government Exhibit 41-A and the mark on 41-B?
!A  My comparison in -- with Exhibit 41-A was to determine if the cartridge case was fired in that particular weapon. Cartridge case designated as 41-B. Again I test fired ammunition in 41-A and made a microscopic comparison of the firing pin impression, in other words, where the firing pin struck the cartridge case; and in this type of weapon there is another area that can be compared in that it is a .22 caliber rim fire gun; and as the firing pin strikes the rim, it also causes the rim of the cartridge to be crushed against the barrel of the gun so that sometimes microscopic marks directly over the barrel of the gun, the breech of the barrel can be transferred to the rim on the cartridge case.
In this particular instance both the markings in the firing pin impression and from the outside of the chamber, the breech of the barrel were consistent with -- between Exhibit 41-A and Exhibit 41-B, and my microscopic examination led me to conclude that they were fired by the same gun.
Q  That is a .22 caliber, is it not?
{3226}
A  Yes.
Q  Now, what is the actual measurement of that in terms of inches?
A  The bullet diameter?
Q  Yes.
A  It varies from .221 to about 224 thousandths of an inch.
Q  Did you examine any other -- any other bullets or fragments with approximately the same diameter, any other type of rounds?
A  Yes.
Q  And what kind were those?
A  They were jacketed bullets of .22 caliber.
Q  And what was their caliber or their normal designation?
A  Well, the normal designation is .22 or 5.56 mm., military -- it would be in the metric system -- that would be called that.
Q  Have you heard of the designation .223?
A  Yes, sir, that's a .22 caliber.
Q  And what is .223?
A  Well, .223 is the name of a cartridge type, in other words, it is .22 caliber; and the whole cartridge itself is called a .223, .223 Remington is the full complete name.
Q  What is the difference between the .223 and the .22 as you have designated there on Government Exhibit 41-B?
A  Well, the difference is that this is a very small cartridge. It is rim fire versus the .22, .223 being the center fire, in other words, the pin sits in the center of the cartridge case, {3227} whereas the primer strikes the edge of the cartridge case in Exhibit 41-A. The bullets are entirely different. 41-A will fire a lead bullet which is not copper coated. A .223 caliber bullet is copper coated, a much harder bullet.
Q  You have in front of you Government Exhibit 41-B. Would you show the jury what kind of a cartridge casing it leaves?
{3228}
A  (Indicating)
Q  Now I'll show you Government Exhibit 34-D. Is this this .223 round which you were talking about?
A  Yes, sir, it is.
Q  Okay. Now would you hold them up so the jury can see by comparison the difference between the two.
MR. SIKMA:  If it's all right, Your Honor, perhaps the witness could step down so the jury could see the difference.
THE COURT:  Witness may step down.
THE WITNESS:  (Indicating.)
Q  (By Mr. Sikma) What is the muzzle velocity of Government Exhibit 41-B, if you know, approximate muzzle velocity?
A  Well, 41-B is a Winchester. The maximum velocity would be in the area of 3200 feet per second.
Q  41-B, are you sure?
A  I'm sorry, that's the wrong one.
41-B is the .22.
.22 long rifle, it would be in the area, fired in a rifle, about 1700 feet per second, 1800 feet per second.
Q  Okay. Now, 34-D I believe is that the other?
A  34-D?
Q  Yes.
A  That is in the area of 3200 feet per second.
Q  I will show you what is marked as Government Exhibit 69-1 and {3229} ask you whether or not you recognize 69-1?
A  Yes, I do.
Q  And is that a chart which you had prepared as the other charts to compare Government Exhibit 69-A with various exhibits, cartridge casings?
A  Yes. That's -- I had that prepared.
MR. SIKMA:  I would offer into evidence Government Exhibit 69-1.
MR. LOWE:  No objection, Your Honor.
THE COURT:  69-1 is received.
Q  (By Mr. Sikma) There is a notation on Government Exhibit 69-1. Depicts an examination of what kind of firearm?
A  Government's Exhibit 69-A is essentially a World War II British army rifle and caliber .303 British.
Q  And what kind of comparisons did you make about Government Exhibit 69-A and 69-B, C and D and E?
A  I compared the chart cartridge casings in 69-B, C, D and E to the cartridge casings which I test fired in Government's Exhibit 69-A.
Q  And what did you find, or what did you determine as a result of those comparisons?
A  That the microscopic markings left on 69-A test cartridge cases that I found were identical to the microscopic from both the breech face area in the firing pin impression and 69-B, C, D and E, so it was my opinion that the cartridge casings in {3230} 69-B, C, D, and E were fired in Government Exhibit 69-A.
Q  I will show you what is marked as Government Exhibit 35-1 for identification and ask you whether or not you recognize Government Exhibit 35-1?
A  Yes, I do.
Q  And what is that?
A  That is an exhibit that I had made up for the K 87 revolver.
MR. SIKMA:  I would offer into evidence Government Exhibit 35-1.
MR. LOWE:  No objection, Your Honor.
THE COURT:  35-1 is received.
Q  (By Mr. Sikma) What kind of weapon does 35-1 relate to?
A  The weapon, Exhibit 35-A is a .357 magnum Smith and Wesson, Model 19 revolver.
Q  I will show you what has been marked as Government Exhibit 30 -- excuse me, 35-A and ask you whether or not you had an opportunity to examine Government Exhibit 35-A?
A  Yes, sir, I did.
Q  Now, does that firearm, would you look at the butt plate of that firearm. Is there, can you tell me whether there is normally a serial number there?
A  Yes. The serial number is normally, on the Smith and Wesson revolver, stamped into the butt.
Q  And is there one there on that particular firearm?
A  No, there is not.
{3231}
Q  Can you tell whether or not there was a serial number there?
A  Smith and Wessons do put their serial number in that area. This area up here appears to have been ground off and it appears that the serial number has been removed from that area.
Q  I would direct your attention to Government Exhibit 35-1 to the box which is designated 35-b and 35-G designated from the seat of Coler's car. Would you tell the jury what kind of comparisons you made with the cartridge casings which are designated on box 35-B and 35-G?
A  Yes, sir. As with the other cartridge cases that I examined I test fired Government's Exhibit 35-A and took the cartridge cases, 35-B and 36 -- I'm sorry, 35-G and placed them on the comparison microscope and compared the imperfections in the firing pin impression of those cartridge cases with the imperfections in the firing pin impressions in the cartridge cases that I test fired in Government's Exhibit 35-A.
MR. LOWE:  We'll stipulate to these. I thought they were on the list that I gave you. If they weren't, they should have been. There's no contest on these. Am I correct?
MR. SIKMA:  Yes, that's correct.
Q  (By Mr. Sikma) Now, is the same true of 35-E, which is designated from the cabin near residences of Al Running?
A  Yes, sir.
Q  And how many cartridge casings were in that group?
{3232}
A  I believe there were six in that group.
Q  And I would direct your attention to the Government exhibit designation 35-F on that chart from a brown metal tool chest in one of the vehicles involved in the shoot-out with Ontario State Police at or near Ontario, Oregon on November 14, 1975. How many cartridge casings were compared in that group?
A  Six.
Q  And what did you find with regard to Government Exhibit 35-F and 35-A?
A  With regard to Government's Exhibit 35-F and 35-A, that 35-F was fired in 35-A.
Q  And is that to the exclusion of all other firearms?
A  Yes, sir.
MR. SIKMA:  Your Honor, pursuant to stipulation at this time I would offer into evidence Government Exhibit 35-C which is the property assignment card for Jack R. Coler pertaining to Smith and Wesson Model 19, .357 magnum, four inch barrel revolver, serial number K622056, O. N. I. on left side, to Jack Coler. "The parties hereby stipulate and agree that if the custodian or other qualified witness of said document were called he would testify that said records are kept in the ordinary course of a regularly conducted business activity, and it was the regular practice of the business activity to make said records. Further foundation is waived."
{3233}
With that I would offer into evidence Government Exhibit 35-C.
MR. LOWE:  No objection, Your Honor.
THE COURT:  35-C is received.
MR. SIKMA:  I would also state, Your Honor, that pursuant to stipulation it is stipulated and agreed that Government Exhibit 35-A was in the possession of Special Agent Jack R. Coler on June 26, 1975, when he entered the Jumping Bull area shortly before noon prior to his death.
+++Q  (By Mr. Sikma) You indicated earlier in your testimony that you had received from Mike Gammage a piece of burned weapon. I will show you what is marked Government Exhibit 34-A and ask you whether or not you recognize it?
A  Yes, sir.
Q  And when did you receive that and from whom?
A  I received this from Special Agent Mike Gammage, the Bureau of Alcohol, Tobacco and Firearms in Washington, D.C. on the 12th of September, 1975.
Q  I will show you what has been marked for identification s Government Exhibit 34-B and ask you whether or not you recognize that?
A  Yes, sir.
Q  And when did you receive Government Exhibit 34-B?
A  I received Government's Exhibit 34-B on the 24th of July of {3234} 1975.
Q  And how did you receive it?
A  It came in with a large box of other items from Rapid City FBI office in Rapid City, South Dakota.
Q  And how, how did you receive it, by what means?
A  Came in by railway express.
Q  Did you compare Government Exhibit 34-B with Government Exhibit 34-A in any manner?
A  Yes, I did.
Q  Would you explain to the jury how you made a comparison?
A  Government's Exhibit 34-A, because of its condition, could not be fired. However, I could remove the bolt out of Government's Exhibit 34-A and place it in another firearm, AR-15 rifle, and test fire it in that manner.
This I did and compared the markings, microscopic markings placed on the cartridge cases that I fired using the bolt of Government's Exhibit 34-A with Government's Exhibit 26 -- I'm sorry, 34-B.
{3235}
Q  When did you make the comparison on Government's Exhibit 34B?
A  I don't really know the day that I did it. It would have been sometime late in the year of 1975 or early 1976.
Q  And do you have an opinion as to the comparison which you made between the known items fired from the firing pin of Government Exhibit 35A and the firing pin impression of 35B?
A  No, sir. I could not form a conclusion. But based on either the firing pin or the breech face as to whether or not the Government's Exhibit 34B had been fired in Government Exhibit 34A --
THE COURT:  Now there seems to be some confusion in the record. You referred to 35 and the witness referred to 34.
MR. SIKMA:  Excuse me, 34. There is a confusion.
Q  (By Mr. Sikma) What comparison did you make? You indicated earlier, I believe, that you compared an ejection mark with 35, or 34B and 34.
A  Yes, sir. The ejector marking in the rim of Government's Exhibit 34B, I'm sorry, the extractor marking, that hook I referred to earlier, I compared that with the extractor marking placed on test which I fired in one of our weapons using the bolt from Government's Exhibit 34A.
Q  And do you have an opinion as to 34B and 34A?
{3236}
A  Yes, I do.
Q  And what is that opinion?
A  That 34B was loaded into and extracted from Government's Exhibit 34A based upon the microscopic characteristics of the extractor mark on the rim of the cartridge cases.
MR. SIKMA:  At this time, Your Honor, I'd offer into evidence Government's Exhibit 34A.
MR. LOWE:  I believe we've made some remarks on the record, Your Honor, on that. I have no additional matters to bring before Your Honor.
THE COURT:  Very well. Exhibit 34B is received.
MR. SIKMA:  34A.
THE COURT:  Was it A that you offered?
MR. HULTMAN:  Yes. A is offered.
MR. SIKMA:  Yes, Your Honor.
THE COURT:  34A is received.
Q  (By Mr. Sikma) Now did you have occasion to prepare a chart as you did with the other firearms with regard to Government Exhibit 34A and the items which you compared?
A  Yes, I did.
MR. SIKMA:  Your Honor, I'd offer into evidence Government's --
Q  (By Mr. Sikma) I show you, first of all, Government Exhibit 34-1. Can you tell me whether or not this is a chart which you referred to?
{3237}
A  Yes. That's the chart.
MR. SIKMA:  I would offer into evidence Government Exhibit 34-1.
MR. LOWE:  Again, I think we have a record on that, Your Honor.
THE COURT:  Very well. 34-1 is received.
Q  (By Mr. Sikma) With regard to Government Exhibit 34B, what is the Q number that you assigned to that item?
A  It's Q2628.
Q  I will show you what is marked as Government's Exhibit 34C. 34C is designated on the chart as from the 1967 Ford Galaxie. How many items do you have on Government Exhibit 34C?
A  35 I believe.
Q  Now did you compare all of the items in Government Exhibit 34C as you did with Government Exhibit 34B?
A  Yes, I did.
Q  And do you have an opinion as to whether or not Government Exhibit 34C as they're designated with extractor, with the extracting bolt which is found in Government Exhibit 34A?
A  Yes, I do.
Q  What is that opinion?
A  That all the cartridge cases in Government's Exhibit 34C were loaded into and extracted from the rifle of Government's Exhibit 34A.
{3238}
Q  Now 34D is designated as from a 1966 Chevrolet Suburban Q number 547. Did you conduct a comparison between the bolt of 34A and Government Exhibit 34D?
A  Yes, I did.
Q  And what were your findings?
A  That an extractor mark was present in Government's Exhibit 34D and that in my opinion based on the microscopic characteristics that was produced by the bolt of Government's Exhibit 34A.
A  34E as designated as the log house near the crime scene is Q number 2536. Did you make an examination with regard to 34E and 34A?
A  Yes, I did.
Q  And what was your conclusion?
A  That 34E had been loaded into and extracted from Exhibit 34A.
Q  Now with regard to Government Exhibit 34F, did you make an examination with regard to 34F and 34A?
A  Yes, I did.
Q  34F is designated as from the hood and top of 1967 Ford at tent city. What is your conclusion with regard to 34F and 34A?
A  34F had been loaded into and extracted from 34A.
Q  I will show you what is marked as Government Exhibit 34C which is designated on the chart as from Williams' car, Q10, {3239} 15A, 15C, Q18. Will you examine these items.
**What did you find with regard to Government Exhibit 34G?
A  Government's Exhibit 34G consists of .22 caliber copper jacket bullet fragments and those fragments designated as Q10, 15A, 15C and Q18 contain rifle impressions consisting of six grooves twisting to the right which is consistent with the barrel of Specimen Q34A.
Q  Now Q34A is what kind of firearm?
A  It's a .22 caliber center fire semi-automatic rifle.
Q  Now the .22 rifle that you referred to earlier, could those items in Government Exhibit 34G have been fired from that weapon?
A  No, sir. That fires an entirely different type of bullet.
Q  Now does that fire a rim fire or a center fire?
A  It is a rim fire cartridge. It is fired in the other rifle.
Q  Now by comparison purpose, 34A is an AR15. What is the muzzle velocity of an AR15?
A  In commercial loaded ammunition it is approximately 3200 feet per second, in that general area.
Q  Have you done any research to determine the firing muzzle velocity capabilities from any loading manuals?
A  I looked through the various loading manuals by Spear and Hornaday and Sierra and also checked some of the commercial ammunition pamphlets for the various velocity ranges that are {3240} available.
Q  I'd ask you whether or not you, show you Government Exhibit 47A and ask you whether or not you looked in Government Exhibit 47A in that regard?
A  Not in this particular manual; no, sir. I looked in a Sierra, another copy of it.
Q  The same manual, I mean, the same --
A  I don't remember if it was the same edition or not.
Q  And what did you find with regard to that, the muzzle velocity variation of an AR15?
A  Well, the highest, it can vary up to as high as, I believe, 3,690 feet per second is the highest any hand loader has listed in his manual.
Q  Now with any of the firearms which you examined in connection with this case, did any have as high a velocity capability as the AR15 by comparison?
A  No, sir. Not quite that high a velocity that was available from any of the other by hand loading.
Q  Of those that you examined in connection with this case, what was the next highest velocity?
A  The 30 aught six with 110 grain bullet.
*Q  I would show you what is marked as Government Exhibit 34H which is designated on the chart as being found from the ground beneath bodies of Williams and Coler, Q84. Did you have occasion to examine --
{3241}
A  Yes, I did.
Q  -- Government Exhibit 34H?
A  Yes, sir, I did.
Q  And what did you find with regard to Government Exhibit 34H?
A  That it is a .22 caliber copper bullet jacket. It has rifling impressions consisting of six grooves with a right hand twist and that the rifling in 34H is consistent with the rifling in the barrel of Exhibit 34A.
Q  Now you could not tell whether that was fired from Government Exhibit 34A, is that a correct statement?
A  That's correct.
Q  Why could you not make that comparison?
A  With any of the fragments in 34C and item 34H, none of them have any of the type of microscopic marks needed for identification purposes remaining on the outside surface so it would not be possible for me to identify them with any firearm.
THE COURT:  The Court is in recess until 9:00 o'clock tomorrow morning.
(Whereupon, at 5:00 o'clock, P.M. on April 5, 1977, recess was taken until 9:00 o'clock, A.M. on April 5, 1977.)

{NOTE: Per vets who are familiar with M16 and AR-15 ejection patterns I am told they are designed to eject straight toward the ground for the reason that it prevents hot cartridges from landing in your buddy's collar..}