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

WINTHROP LODGE: DIRECT EXAM

WINTHROP LODGE,
being previously sworn, testified further as follows:
 DIRECT EXAMINATION CONTINUED
BY MR. CROOKS:
Q  Mr. Lodge, when we finished yesterday I was asking you about various fingerprints which you had found and I'd like to go back, if I could, for a moment to one of the first fingerprints you testified about and that being the fingerprint which you identified as having come off of the inside of the door handle of Special Agent Williams' car shown in Exhibit 9A. Now I would like to hand you Exhibit No. 2 and ask if you can identify that exhibit.
A  Yes, sir, I can.
Q  What is it?
A  This is a rubber lift that I use to lift the latent print that I developed on the inside door release handle on this automobile shown in the photograph marked Exhibit 9A.
Q  And is that the same fingerprint that you identified as being the latent fingerprint of Robert Robideau as shown by his ink print card, Exhibit No. 3?
A  Yes, sir, it is.
MR. CROOKS:  The United States will offer Exhibit No. 2.
MR. LOWE:  No objection, Your Honor.
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THE COURT:  Exhibit 2 is received.
Q  (By Mr. Crooks) Just again with regard to Exhibit No. 2, which fingerprint or which finger, if any, does that print correspond with on Exhibit No. 3?
A  It corresponds with the ink fingerprint in the No. 6 finger block for the left thumb.
Q  What is your opinion as to the comparability, if any, between those two exhibits?
A  There is no doubt in my mind whatsoever.
Q  That they are?
A  They were made by one and the same individuals.
Q  Now I believe as we finished yesterday I was beginning to go into Mr. Peltier's print, prints, and I had shown you Exhibit No. 38A, and was it your testimony that that is an exhibit that you have seen before and are familiar with?
A  Yes.
Q  Insofar as that exhibit is concerned, did you make various comparisons between the prints contained on Exhibit 38A and various items that you found in or around the tent area?
A  Yes, sir.
Q  I'd first like to hand you Exhibit No. 12 and ask you if that's a vehicle you've seen before?
A  Yes, sir.
Q  And where did you first examine that vehicle?
A  I examined it at the maintenance compound in Pine Ridge.
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Q  And did you dust that vehicle to determine if any latent fingerprints of value could be found?
A  Yes, sir, I did.
Q  And in your examination did you examine the rear view mirror of that vehicle?
A  Yes, sir, I did.
Q  And what if anything did you find?
A  I developed a latent print on the back of the rear view mirror that was attached to this vehicle.
Q  Now I'd like to hand you Exhibit 38D and ask if you can identify that.
A  Yes, sir, I can.
Q  And what is it?
A  This is a photograph of the list that was used to lift the print, the latent print that was developed on the rear view mirror.
Q  And did you make a comparison between that exhibit that I have just shown you and the latent prints contained on 38A?
A  Yes, sir, I did.
MR. CROOKS:  United States would offer Exhibit 38D.
MR. LOWE:  Are you saying E?
MR. CROOKS:  D as in dog.
MR. LOWE:  No objection, Your Honor.
THE COURT:  38D is received.
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Q  (By Mr. Crooks) 38D now having been received, I hand it to you and ask again if you have made a comparison between 38D which you previously identified as a latent print developed on the rear view mirror of Exhibit No. 12, the red and white van, and ask if you've made a comparison between that and any of the fingerprints contained on Exhibit 38A which has been previously identified as the fingerprint of Leonard Peltier?
A  Yes, sir, I did.
Q  And what comparison, if any, did you make?
A  I found that the latent fingerprint appearing in this photograph marked Exhibit 38D and the ink fingerprint appearing in the little finger block or the No. 5 block on this fingerprint card bearing the name Leonard Peltier and marked Exhibit 38A were made by one and the same individual.
Q  Did you during the course of your examination prepare any charts which would illustrate your findings?
A  Yes, sir, I did.
Q  I hand you Exhibit No. 42 and ask if you can identify that?
A  Yes, sir. These are the charts that I prepared.
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Q  And which exhibits are shown in the chart?
A  The one marked --
Q  (Interrupting) Well, that's not yet in evidence. I guess you really shouldn't be showing it to the jury, just relate orally if you would.
A  Actually there are photographic enlargements of first, the latent print that was developed on the back of the rearview mirror.
Q  And what was the number on the print that you just handled?
A  That's Exhibit 38-D.
Q  O.k.
A  And the inked fingerprint appearing on this fingerprint card marked Exhibit 38-A and bearing the name, Leonard Peltier.
Q  All right, and was this an exhibit prepared either by yourself or under your direction and control?
A  It was prepared by me.
MR. CROOKS:  All right. The United States will offer Exhibit 42.
MR. LOWE:  No objection, your Honor.
THE COURT:  Exhibit 42 is received.
(Plaintiff's Exhibit No. 42, having been previously duly marked for identification, so offered in evidence, was received.)
Q  (By Mr. Crooks) Would you now display this to the jury and very briefly describe the manner in which this was prepared {3060} and what it purports to show; and I would ask you at this time not to go into it specifically, but merely as a general explanation of the exhibit and what it is intended to illustrate?
A  Yes, sir.
THE WITNESS:  Would you like for me to, your Honor, approach the jury?
THE COURT:  You may do it whichever way is most convenient for you.
A  These are actually photographic enlargements, as I said, of the inked fingerprint appearing on the fingerprint card; and on your right, a photographic enlargement of a latent fingerprint lifted from the rearview mirror. These red lines and numbers are placed on the cards to indicate the points of identity in each print, the corresponding points.
I might add that there are other points of identity on both of these prints that correspond that I did not put on the card.
Q  O.k., thank you.
Now, with regard to Exhibit 38-A, were there other prints that you found which were comparable in any way to any on the print card?
A  Yes, sir, there were.
Q  And I will first hand you Exhibit No. 46-B and ask if that's something you can identify?
A  Yes, it is.
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Q  And what is it?
A  This is a photograph of a latent print that was developed on the gun owner's book.
Q  All right. I hand you Exhibit No. 46-A which is already in evidence, and ask if this is in fact the gun owner's book that you are referring to?
A  (Examining) Yes, sir, it is.
MR. CROOKS:  The United States will offer Exhibit 46-B.
MR. LOWE:  No objection, your Honor.
THE COURT:  Is that "B" as in "Baker"?
MR. CROOKS:  Yes, your Honor.
THE COURT:  46-B is received.
(Plaintiff's Exhibit No. 46-B, having been previously duly marked for identification, so offered in evidence, was received.)
Q  (By Mr. Crooks) All right. I now again hand you Exhibit 46-A and 46-B, and would ask you where in the book, if you can locate it, was the fingerprint found which is illustrated in the photograph by 46-B?
A  (Examining) Yes, sir. It was developed on this introduction page.
Q  Is there a number on it?
A  Roman numeral IX.
Q  Roman numeral IX, all right.
Insofar as 46-B, did you then make a comparison between {3062} that and 38-A which is the Leonard Peltier fingerprint card?
A  Yes, sir, I did.
Q  And what, if any, were the results of your examination and comparison?
A  I found that the latent print developed on this introduction page and shown in this photograph marked Exhibit 46-B and the inked fingerprint appearing in the right thumb block of this fingerprint card marked Exhibit 38-A and bearing the name, Leonard Peltier, were made by one and the same individual.
Q  All right. I would ask you in your utilization of Exhibit 38-A, if you examined Exhibit 47-A?
A  (Examining) Yes, sir, I did.
Q  And were any prints found on 47-A?
A  Yes, sir, there were.
Q  Which were in any way comparable to the fingerprints of Leonard Peltier as demonstrated by Exhibit 38-A?
A  Yes, sir, there were.
Q  I now hand you Exhibit 47-B, and ask if that's something you have seen before?
A  (Examining) Yes, sir.
Q  And what is it?
A  This is a photograph of a latent print developed on Page 159 of the exhibit marked 47-A.
MR. CROOKS:  All right. The United States will offer Exhibit 47-B.
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MR. LOWE:  No objection.
THE COURT:  47-B is received.
(Plaintiff's Exhibit No. 47-B, having been previously duly marked for identification, so offered in evidence, was received.)
Q  (By Mr. Crooks) 47-B now having been received in evidence, did you make a comparison between 47-B which is the latent fingerprint developed on the Sierra Manual, and 38-A which are the known fingerprints of Leonard Peltier?
A  Yes, sir, I did.
Q  What were your findings, if any?
A  I found that the latent fingerprint shown in this -- developed and shown in this photograph marked Exhibit 47-B, and the inked fingerprint appearing in the right thumb block of this fingerprint card marked Exhibit 38-A, and bearing the name, Leonard Peltier, were made by one and the same individual.
Q  All right. I now hand you Exhibit No. 45-B, and ask if this is an exhibit which you examined as part of your fingerprint examination?
A  Yes, sir, it is.
MR. CROOKS:  And for identification, your Honor, I might state to the jury that this has been previously identified as the motor vehicle tax registration form, which by stipulation it has been agreed, has been found in the 1967 Ford Galaxy automobile at Tent City.
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Q  (By Mr. Crooks) Now, insofar as that exhibit, did you make any comparison between it and 38-A, the known fingerprints of Leonard Peltier?
A  Yes, I did.
Q  And what findings, if any, did you make?
A  Could I refer to several of my notes?
Q  Surely.
A  (Examining) Yes, sir.
Q  All right. Would you state what your findings were with regard to Exhibit 45-B as compared with Exhibit 38-A?
A  Three latent fingerprints were developed on the South Dakota Vehicle Registration Tax Form; and in comparison, two of the latent fingerprints appearing on this form, or developed on this form, and the inked fingerprint appearing on this fingerprint card in the right thumb block, Exhibit 38-A, and bearing the name, Leonard Peltier, were made by one and the same individual; and also one latent fingerprint also developed on Exhibit 45-B and the inked fingerprint appearing in the No. 6 block or left thumb block of this fingerprint card marked Government's Exhibit 38-A and bearing the name, Leonard Peltier, were made by one and the same individual.
Q  All right. I now hand you Exhibit No. 45-C, and ask if this is something you have likewise seen during the course of your investigation?
A  (Examining) Yes, sir, I have.
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Q  All right, and did you develop any latent fingerprints on that document?
A  Yes, sir, there was one latent fingerprint developed on Government's Exhibit 45-C.
Q  And what was that, what print -- well, did you make a comparison between that print and Exhibit 38-A?
A  Yes, sir, I did.
Q  And what were the results of your examination?
A  I found that the latent fingerprint developed on Government's Exhibit 45-C and the inked fingerprint in the No. 6 finger block or left thumb block of this fingerprint card marked Government's Exhibit 38-A and bearing the name, Leonard Peltier, were made by one and the same individual.
Q  All right. I now hand you Exhibit No. 45-D, and ask if that is something you examined for fingerprints during the course of your examination?
A  (Examining) Yes, sir.
Q  And excuse me, were any latent fingerprints developed on that?
A  Yes, sir. Two latent fingerprints were developed on this item marked Government's Exhibit 45-D.
Q  And did you make a comparison between those latent fingerprints and the known prints of Leonard Peltier contained in 38-A?
A  Yes, sir, I did.
Q  And what were the results of your comparison?
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A  I found that the two latent fingerprints developed on Government's Exhibit 45-D and the inked fingerprints appearing in the No. 9 fingerblock and No. fingerblock on this fingerprint card marked Exhibit 38-A and bearing the name, Leonard Peltier, were made by one and the same individual.
Q  All right. I now hand you Exhibit No. 45-E, which prior testimony of Mr. Schumacher indicates were part of the Rice Motors' records as was 45-D, I might add -- I hand you Exhibit 45-E and ask if you examined that document?
A  (Examining) Yes, sir, I did.
Q  And were any latent fingerprints of value found on that exhibit?
A  Yes, sir. There was one latent fingerprint of value developed on this item marked Government's Exhibit 45-E.
Q  And did you make a comparison between that and the known fingerprints of Leonard Peltier as are shown on 38-A?
A  Yes, sir, I did.
Q  And what were the results of your comparison?
A  The one latent fingerprint developed on this item marked Government's 45-E and the inked fingerprint appearing in the No. 10 finger block of this fingerprint card marked Government's Exhibit 38-A and bearing the name, Leonard Peltier, were made by one and the same individual.
MR. CROOKS:  All right. Now, your Honor, at this time I would hand to the Clerk for filing a stipulation signed {3067} by Mr. Hultman, Mr. Taikeff, Mr. Lowe and Mr. Peltier.
THE COURT:  Very well.
(Court examines document.)
$MR. CROOKS:  Your Honor, at this time I would ask leave of the Court to read that stipulation to the jury.
THE COURT:  The stipulation may be read.
MR. CROOKS:  The stipulation, omitting the formal parts, is as follows:
It is hereby stipulated and agreed by and between the parties as follows:
One. That Special Agent Jack Coler's Bureau car, a gold colored Chevrolet 400 Biscayne, bearing 1975 Colorado license plates, No. KE-1194, depicted in Government's Exhibit No. 57, was found on June 26, 1975, at the point indicated as Coler's car on Government Exhibit No. 71, by the following Special Agents of the Federal Bureau of Investigation:
A. Dean Howard Hughes.
B. Ben R. Patty, Jr.
C. Robert K. Taubert.
D. Gerard P. Waring.
E. David F. Price.
F. Donald G. Wiley.
G. J. Gary Adams.
And that if called as witnesses, each of the {3068} aforementioned Agents would testify that to their knowledge nothing was placed in the vehicle by themselves or otherwise which was not in the vehicle at the time it was found.
Two. If called as a witness, Special Agent Donald G. Wiley would testify that he assumed control of Special Agent Coler's car at the scene, and that he remained inside the 1972 Chevrolet Biscayne automobile and that no person came near said automobile until such time as he had closed and locked the doors and trunk of said automobile; and he remained with Special Agent Coler's automobile until Deputy Sheriff Michael Lynn Jenniges, a peace officer employed by the Fall River County, or Fall River Sheriff's office of the State of South Dakota, arrived, accompanied by a tow truck; and that he then delivered custody of said automobile to Deputy Sheriff Jenniges.
Three. That if called as a witness, Deputy Sheriff Michael Lynn Jenniges would testify that he came to the Jumping Bull area with a tow truck and assumed custody of the aforementioned 1972 Chevrolet Biscayne automobile from Special Agent Donald G. Wiley; he was standing beside the same with the doors and trunk closed.
He would further testify that he supervised the hookup of said 1972 Chevrolet Biscayne automobile to the tow truck, and that the same was towed under his control and supervision to the Fall County Jail, Hot Springs, {3069} Springs, South Dakota, where the said 1972 Biscayne automobile was placed in a locked garage owned by Fall River County.
He would further testify that no person had any contact with the interior of said vehicle from the time it was taken into his custody from Special Agent Donald G. Wiley and until the same was delivered and locked into the aforesaid Fall River County Garage.
He would further testify that after locking the doors of said garage, he applied seals to the exterior of the garage and that said vehicle remained locked in the garage until June 29th, 1975, when the seals were broken and the garage was opened for employees of the Federal Bureau of Investigation who he observed to conduct, or conduct a fingerprint examination of said vehicle.
Four. If called as a witness, William Fisher, 501 South Fifth Street, Hot Springs, South Dakota, would testify that he is a locksmith and that he was called upon to unlock the doors and trunk area of Special Agent Jack Coler's Bureau automobile on June 29th, 1975, to facilitate the fingerprint examination of the same by Winthrop Lodge, a fingerprint specialist of the Federal Bureau of Investigation.
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MR. CROOKS:  Document having been signed by the various parties to this lawsuit.
@Q  (By Mr. Crooks) Now, Mr. Lodge, I would like to ask you a few additional questions concerning the exhibits which we have started talking about yesterday. First of all Exhibit 34-B which you had previously testified was found in the trunk of Coler's bureau automobile by yourself, insofar as your examination was concerned as you've heard from the stipulation do you recall a locksmith being called?
A  Yes, sir.
Q  And why was that?
A  The vehicle was locked and we had no other way of conducting our examination on the interior of the car until we had the doors unlocked.
Q  All right. And when the individual, the locksmith came and unlocked the doors was anybody else, did anybody else enter the vehicle prior to yourself?
A  No, sir.
Q  Now, when that exhibit was found do you recall whether it was in the first, middle or latter part of your examination? The time sequence in which that exhibit was found, 34-B?
A  No, sir, I don't recall just whether it was in the beginning of our examination or at the end of the examination.
Q  In any event when the exhibit was found what did you do with it?
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A  Well, first of all it was tagged for identification purposes and was later examined for latent prints.
Q  All right. Insofar as the examination that you made of that exhibit for latent prints, what results if any did you find or were made?
A  There were no latent prints developed on the present, or developed on the cartridge.
Q  Now, insofar as the latent print is concerned there are basically different classifications, a print of value and a print not of value; is this correct?
A  Yes, sir.
Q  And you said, as I understood your testimony, there were no prints of value found. Were there any prints that you could identify of fingerprints which were not of value?
A  No, sir. I don't recall any prints at all on the --
Q  No prints of any kind?
A  Right.
Q  All right. Insofar as that exhibit is concerned could you examine the bottom of the exhibit, if you can see through the plastic, and indicate what manufacturer that shell casing came from.
A  I'm afraid I would have to take this out of this plastic to, rather difficult to see.
Q  Perhaps take it out of the first plastic bag and then maybe you will --
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A  .223, Rem.
Q  Those would be the only markings found on the base of the shell casing other than the primer mark?
A  Yes, sir.
Q  All right. And do you know whether or not Rem stands for Remington Arms Company?
A  I just assumed that it did.
Q  All right.
MR. CROOKS:  United States will re-offer Government's Exhibit No. 34.
MR. LOWE:  34-B?
MR. CROOKS:  34-B, I'm sorry.
MR. LOWE:  No objection, Your Honor.
THE COURT:  34-B is received.
MR. LOWE:  Subject to cross-examination.
Q  (By Mr. Crooks) I would now hand you Exhibit No. 35-G; ask if that is an exhibit you've seen before?
MR. LOWE:  Did you say "G"?
MR. CROOKS:  G.
A  35-G.
Q  (By Mr. Crooks) Right.
A  Yes, sir. I did retrieve this.
Q  And where have you seen, where did you first see that?
A  In the interior of the, of Special Agent Coler's automobile during my examination.
{3073}
Q  And from your examination of the shell casing found in the paper bag, or the cellophane bag, what does it appear to be?
A  It appears to be a .38 Special cartridge case.
Q  And that would be again in the interior of Special Agent Coler's car?
A  Yes, sir.
Q  So the record's clear.
A  Yes, sir.
Q  All right.
MR. CROOKS:  United States will offer 38 -- or excuse me, 35-G.
MR. LOWE:  No objection, Your Honor.
THE COURT:  35-G is received.
Q  (By Mr. Crooks) All right. During the course of your examination of the vehicle, Mr. Coler's vehicle in particular, did you prepare contemporaneous notes of any sort?
A  Yes, sir, I did.
Q  And do you have those with you?
A  Yes, sir.
Q  Could I see them, please.
I hand you what has now been marked as Government Exhibit No. 180 and ask if you can identify those without going into the details of the contents, just to give a description of what they are?
{3074}
A  Yes, sir. These notes were written by me indicating the date, time, place that Special Agent Coler's car was turned over to me.
Q  And what is the date that is indicated on the notes?
A  6/29/75. Hot Springs, South Dakota, Sheriff's Department.
Q  All right. And would you describe how those notes were made.
MR. LOWE:  Your Honor, may we approach the sidebar a moment?
THE COURT:  I beg your pardon.
MR. LOWE:  May we approach the sidebar?
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE:  Your Honor, I'm not sure what counsel is doing. I thought I ought to start out before we get to a critical stage. These were papers not disclosed to us, never given as part of 3500 material. I don't know what the purpose of the intent of showing them is, but we would object to their introduction, at least until we've had a chance to examine them before the testimony is given about it.
MR. CROOKS:  I'm sorry, I thought you examined those this morning, John.
MR. LOWE:  No. The only thing I looked at this morning was fingerprint notes that he had. He had about four {3075} sheets of white paper that he showed me and they weren't really notes, they were extracts from his reports and other things.
MR. CROOKS:  Well, go ahead. I'm sorry, I didn't mean to interrupt.
MR. LOWE:  I have never seen these before. They were never disclosed as 3500 material, and at this point I would have to enter a general objection as to any reference to them. And of course I've never seen them, so I don't know what they contain.
MR. CROOKS:  Well, Your Honor, just for the Court's edification, what these are are basically his notes that he made contemporaneous with the search. They were then reduced to the formal 302, but these would be the original notes as he went through the car item by item, then making notes of what he found and compared and so forth.
And very simply what I'm going to do is lay a foundation for these notes as being basically a recordation of the finding of the .223 cartridge which is, as counsel has many times indicated, the actual memory which is refreshed to introduce the exhibit showing it. But more importantly I think it goes for the obvious thing that counsel has on prior witnesses indicated a recent fabrication of the finding of the .223 cartridge. And it is simply to show that this contemporaneous with the event, the finding of this cartridge was noted.
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MR. LOWE:  I'm sorry, I may have misunderstood what you said. You are intending to offer these as something to show --
MR. CROOKS:  To corroborate.
MR. LOWE:  -- his recollection at the time when it was fresh?
MR. CROOKS:  Yes, absolutely.
MR. LOWE:  And you feel that that is a basis that you feel you ought to be able to introduce those then?
MR. CROOKS:  Not just that, but primarily to corroborate his testimony that this is not a fabrication. He found the cartridge because he noted it on his notes at the time they were found. And counsel has implied through various witnesses that this is all a fabrication.
I think he's even used the term to the Court that the cartridge was "salted", and I think we're entitled to show that this cartridge was not salted. It was found by Mr. Lodge. May be a contemporaneous note of it. And I'm not offering it yet, but that's --
MR. LOWE:  You intend to offer it?
MR. CROOKS:  Yes.
MR. LOWE:  If you are intending to offer it, to save time from coming up to the sidebar, make an offer and let the Judge rule on it.
Obviously you are moving in that direction.
{3077}
MR. CROOKS:  I think I'm entitled to lay the foundation.
MR. LOWE:  I understand. I'll let you do that, but in terms of raising the question with the Court can we just take it up now. It's obvious that you've got a question or two and you're going to offer it. Can you make a representation and an offer of proof and let the Judge rule? That's all, just state what he's going to say. I don't mind.
MR. CROOKS:  Pardon?
MR. LOWE:  State what he's going to say and we can get a ruling on it.
MR. CROOKS:  He's simply going to say that there's a note of the .223 cartridge found in the, at the time or contemporaneous note. And that's all that I'm offering it for. If counsel wishes, I'll take out everything except the note pertaining to that. That's the purpose of it, and that's what he'll say.
THE COURT:  What is the position of the defense.
MR. LOWE:  Well, I think, you know, we oppose it. Well, I'm not even sure if I oppose it. If you are offering it in evidence, if Your Honor is going to accept it in evidence, I'd like to see it before I cross-examine.
THE COURT:  Well, I'm not going to rule until I get your position on the record.
MR. CROOKS:  Surely I'll show it to counsel.
MR. LOWE:  We would -- may I talk to Mr. Taikeff for {3078} a moment, Your Honor?
THE COURT:  You may.
MR. LOWE:  As I say we're surprised a little bit on this. That's why I'm just not sure what -- and I wonder if it's possible that we could just take a look at them for a moment here just at the sidebar.
THE COURT:  Sure, yes.
MR. CROOKS:  Your Honor, or John, if I can point out the one paragraph which we're, if I can find it, I think I am correct. This is the page that it's on.
MR. LOWE:  30.
MR. CROOKS:  Item 30, item 30 is on the last page, is the only item which the United States --
MR. LOWE:  Let me just look at this a minute if we can because I've never seen it before.
We have no objection to the introduction of that, Your Honor, and what we'd like, though, is a chance, perhaps at the break if we could, look that over. It's, I don't want to take the time right now at sidebar, but we would have no objection to introducing it as long as we can see it before cross-examination.
MR. CROOKS:  Oh, sure. I'll be done with it in a few minutes.
MR. LOWE:  All right. Fine. We have no objection.
THE COURT:  Very well.
{3079}
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
THE CLERK:  Are you offering it?
MR. CROOKS:  No, I'm not.
Your Honor, if I could continue with my foundation.
THE COURT:  You may.
Q  (By Mr. Crooks) I now hand you Exhibit No. 180. You testified that you had made some contemporaneous notes and I've handed you Exhibit 180. Would you describe again what they are.
A  Yes, sir. These are notes in my own handwriting. We didn't have a steno to dictate to, so I took these rough notes of the evidence that I recovered from the automobile.
Also indicates the place, the date and the time and the names of the individuals who turned the vehicle over to me in the Sheriff's Department in Hot Springs, South Dakota.
{3080}
Q  Insofar as those notes, I hand you Exhibit No. 34B and ask whether or not there is any mention of that in any part of your notes? Do not read the mention but consult the notes, find out if there is anything in there concerning that.
A  Yes, sir, it is.
Q  All right.
And would you indicate just the page in which there is a notation concerning 34B.
A  Yes, sir. It's listed as No. 50 on this very last page.
Q  And that is a partial page and I believe there is a piece of white attachment to it, is that correct?
A  Yes, sir.
Q. Now insofar as the notes that you took as you were taking items or removing items from the vehicle, were the notes prepared -- well, when in reference to the removal of items were the notes prepared?
A  These notes were kept by me as the different items were collected from the automobile.
Q  So as an item was found you made a note of it and put it on your papers?
A  Yes.
Q  Or your original notes?
A  Yes, sir. And under area of the vehicle, the heading, that is, the area of the vehicle where the items were collected.
Q  Okay.
{3081}
A  In this particular case I had listed as "evidence collected from trunk of Chevy Biscayne 400," and the date.
Q  Now insofar as your notes which are contained in Exhibit 180, were those notes reduced to another form at a later time?
A  Yes, sir. They were dictated and put, I think they're referred to as the 302.
Q  And would the 302 be substantially a dictation from the notes themselves?
A  Yes, sir.
Q  From reviewing Exhibit No. 180 and reviewing the items contained on Exhibit 180, do those in fact refresh your memory as to all or most or some of the items found in Coler's car?
A  Yes, sir.
MR. CROOKS:  We have no further questions of this witness, Your Honor.
MR. LOWE:  Your Honor, I understood Counsel was introducing this and at the side bar the Court introduced it and am I to understand that's an exhibit or not an exhibit?
THE COURT:  It has not been offered.
MR. CROOKS:  Your Honor, Counsel was premature. He came to the bench before I offered it and I do not intend to offer it. It may be offered at some later time but not right now.
MR. LOWE:  Mr. Crooks stated at the bench he was intending to offer it.
{3082}
MR. HULTMAN:  Let's approach the bench.
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE:  Mr. Crooks clearly said he was going to offer it and we acquiesced in that we studied it and said we would get copies of it. What's happening here? We're now changing what was said?
MR. CROOKS:  Your Honor, Counsel was the one that brought this thing up prematurely. He asked me if I intended to offer it; I do not recall whether I did or not. Even if I did I don't know if I'm prevented from changing my mind. I have done what I wanted to do with the exhibit and what I started out to do with the exhibit, is to show this man has got his recollection refreshed from a contemporaneous document. If Counsel wishes to offer it, I don't see any problem. I just don't intend to offer it myself. I may later.
MR. LOWE:  Did Your Honor remember Mr. Crooks saying he intended to offer it? That's my clear recollection. I'm sure it's on the record that --
MR. CROOKS:  What's that got to do with it?
THE COURT:  It is my impression, although I cannot repeat exactly what was said, it is my impression that Counsel indicated that he did intend to offer it. I remember asking you what your position on it was.
{3083}
MR. LOWE:  I would have objected to some of the questions that were asked if I had not been basing my reliance on it.
MR. HULTMAN:  John, you can offer it yourself. There's no problem. His recollection was refreshed and that was the last question, or our basis of offering it is gone.
MR. LOWE:  The basis is gone. He said it did refresh his recollection.
MR. CROOKS:  That's correct. That's right.
MR. LOWE:  Why does that mean the basis is gone? That's an additional basis for --
MR. CROOKS:  I don't know what the argument is. If Counsel wants it in he can offer it.
MR. LOWE:  I think Your Honor understands. I acquiesced on a series of questions on good faith because Counsel said he was going to introduce it. The Court interpreted it was going to be introduced by Government Counsel.
MR. CROOKS:  I don't follow this, Your Honor. I laid down foundation for that. That's what I was attempting to do all along. Counsel got up and objected before I offered it. I don't know how I can be forced to offer something that I've decided that I don't want to offer, particularly at this time. I didn't read any of the contents of this into the record. I simply asked him to refer to it and laid foundation {3084} for it. I may offer it at some later time.
MR. LOWE:  Judge, I think we had valid objections to any reference in that document whatsoever on the ground I stated we had not been provided copies. There had not been any disclosure on --
THE COURT:  Excuse me. I just reviewed 3500 and as I read 3500 you're entitled to it after the witnesses have testified.
MR. HULTMAN:  That's correct.
MR. LOWE:  Except I understood in this trial that there was an order that we be given this before a witness testified.
THE COURT:  There's no order. There is something that's worked out between Counsel.
MR. LOWE:  My mistake then. I thought there was an order on it.
THE COURT:  I never entered an order to that effect.
MR. LOWE:  I misunderstood. Last year.
THE COURT:  It doesn't require it. That's why I checked the statute a moment ago.
MR. CROOKS:  Counsel is correct. There is an understanding. However, these documents were documents which are not basically 3500 documents to start with. They're rough notes. He's got the same, exact same thing in the 302s. I had no intention of going into this until Counsel has raised {3085} the implication that we were concealing evidence and that's why we decided to make reference to these. If Counsel wants to look at them, if he wants to introduce them, it doesn't make any difference to me. From my standpoint I just, I haven't offered them. I'm not sure of the objection that the government hasn't offered something is one I haven't heard before.
MR. LOWE:  I'll be more cautious in the future.
THE COURT:  Very well.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
MR. LOWE:  Do you have a plan when you wanted to break? We have to have a copy of this to look at before cross-examination.
THE COURT:  Have you finished with the witness?
MR. CROOKS:  I have, Your Honor.
THE COURT:  Are we requesting that we recess at this time?
MR. LOWE:  It would be very convenient. Perhaps we can work out with government Counsel to --
MR. HULTMAN:  Could we approach the bench for one more moment?
THE COURT:  You may.
(Whereupon, the following proceedings at the bench:)
MR. HULTMAN:  Your Honor, I was not a participant in {3086} the last conversation but I was a listener and I want to reflect on the record that last night Mr. Lowe came to me at the conclusion of proceedings and asked if he could see the notes. That was the word, "notes," of this particular witness. I indicated to him that I would try to locate the witness and make him available and whatever notes he had. I did do that. I indicated to him that he would be available this morning before trial; that I did too. The witness was available. I just wanted this to be made a part of the record. I don't know what he had reference to but he asked me specifically about notes.
MR. CROOKS:  I might add to that, Mr. Hultman, I instructed the witness to make available any notes of any kind that Counsel wanted to see. I have no way of knowing what notes he looked at or what he didn't.
MR. LOWE:  To make the record clear, Your Honor, I did meet with Mr. Lodge this morning and I said, "I'm supposed to look at your notes," and he pulled out, I would estimate it was four pages of white 8 x 11 paper which had ink pen or ballpoint pen notes on them and said, "here they are." We went over them. I never saw these yellow pages; he never pulled them out. He never mentioned he had them. I said, "I'm supposed to see your notes," and the white papers are the ones he showed me. This is the first I knew these existed is when he pulled them out on the witness stand.
{3087}
MR. HULTMAN:  I didn't know. I just wanted to indicate on the record what our conversation was and the availability of the witness.
MR. CROOKS:  Your Honor, I might just state as far as any knowledge of this matter, just so the record is completely clear, as I talked to Mr. Lodge this morning he asked me, "What notes," and I said, "All notes of any kind and any that he asks for show him." I have no way of knowing what Counsel asked for.
MR. LOWE:  I think if we have a recess and if the government can work out with us we can use our machine or government can make a copy itself and give us a copy.
MR. CROOKS:  We prefer the clerk does it. The exhibit is now in the clerk's hands.
MR. LOWE:  Fine.
THE CLERK:  It's not in my hands, Counsel. It's not offered.
MR. CROOKS:  In any event, I would prefer the clerk does it.
(Whereupon, the following proceedings in the courtroom in the hearing and presence of the jury:)
THE COURT:  The Court is in recess until 10:50.
(Recess taken.)
THE COURT:  The jury may be brought in.
MR. SIKMA:  Your Honor.
{3088}
THE COURT:  Just a moment.
$$MR. SIKMA:  I thought at this time we might take up the matter of Government Exhibit 34I for identification. Defense Counsel asked about it, that it be brought up before Mr. Hodge be brought in as a witness.
THE COURT:  What is 34I?
^MR. SIKMA:  It is an ejection pattern for a Colt AR15 fired at hip position.
What was done was the firearms examiner took five different AR15s and fired them at hip position a number of times and set out a pattern, an ejection pattern for the trunk level height. This is being used as circumstantial evidence to show approximately where an individual could be standing in order to fire an AR15 and have the expended rounds ejected into the trunk of a 1972 Chevy. We are intending to offer this into evidence.
THE COURT:  On the testimony of --
MR. SIKMA:  On the testimony of firearms examiner Hodge, Evan Hodge.
MR. LOWE:  Your Honor, Mr. Ellison just went out to make a slide of this. I think I can show Your Honor and discuss it in some more aspects by projecting it.
As I understand it, Mr. Hodge will say that he obtained, I believe it was five AR15s. I don't recall where he said he obtained them from, from FBI weaponry or somewhere of that {3089} nature; and that he took these weapons out and ran tests.
Now he ran a shoulder firing test and he ran a hip firing test and then he plotted on graphed paper each of the rounds in a group of perhaps ten, I think it is, as to each weapon landed and based on that he came up with an overall pattern which included all 50 rounds as to where the cartridge cases ejected. That is where they landed after they ejected. In all instances they generally went to the right of the weapon which is a design characteristic of the weapon. However, in some instances they went forward, in some instances they went backwards. If Your Honor, please, I will put these on here to show Your Honor what the objection is, one of the objections anyway.
This is a diagram, a copy of the exhibit which is marked Government Exhibit 34I. Now the problem, Your Honor, is this:  each of these circled areas -- perhaps Your Honor would want to look at the original of this for a moment to see the color. But I can talk about it easier.
{3090}
MR. LOWE:  Each of the colored areas is a different weapon.
Now, if all of these fell in an approximately over-lapping situation, so that they showed some general conformity or pattern, then perhaps there would be some probative value, perhaps there would be some relevance, and perhaps there would be some basis that this witness could give testimony and assist the jury in making inferences or deciding what happened.
However, if your Honor will notice, one of the weapons fired all of its rounds in a generally forward or directly perpendicular pattern; and by that I have reference particularly -- I will get a pen that writes.
This one up here (indicating), for example, and yet there is another weapon, another of the weapons that was fired that give an entirely different pattern and went all to the rear and to the right down here (indicating), the ones I have marked in blue.
THE COURT:  All fired from the same position?
MR. LOWE:  All fired from the same position.
In this case, I believe this was from the hip position (indicating), and I believe the other one was from the shoulder position.
THE COURT:  This is shoulder?
MR. LOWE:  This is shoulder, and the other one was {3091} from the hip; and as to the firing from the shoulder position -- excuse me -- the hip position, the results are substantially the same, that is to say, we have the one weapon -- and I am only guessing that it is the same weapon -- you have it up there (indicating), I believe in the color -- one of them went all forward and to the right, and another one or another several of them went all backwards and to the right, showing that these weapons are quite distinctive.
It frankly surprises me that a manufacturing tolerance would not produce at least some overlapping. There is virtually no overlapping, so this leaves the jury with a full range of speculation. They can take any one of these weapons and come up with any result the Government wants to base an argument upon, when in fact it is actually speculation.
I think it is clear that this witness can testify that all of the rounds ejected from the AR-15's -- and we will stipulate, in fact we will concede that AR-15 rounds ejected generally to the right, but that it may be forward or backwards or to the side; and nothing more could be proven by introducing this expert testing, purported expert testing because the results are just all over the ballpark, and you can conclude anything if you selectively take one weapon. There is not even what you could call a {3092} mean result or an average result in all of these rounds. It varies just from the ridiculous to the sublime, from five feet forward to 12 or 13 feet backwards, from very close in, one and a half feet in, on out to about 11 feet out. We feel this is so speculative, so unreliable in terms of showing an expected pattern that an AR-15 fired on June 26 might have produced, that it causes the jury to speculate in an improper manner.
There was no testing of any of the AR-15's that were fired on June 26. I believe that's clear, and that doesn't even purport to show such a firing.
The reason that the Government had this test conducted, I am sure they will concede, is because the AR-15, which was recovered from Wichita, was no longer capable of actually being tested itself as to ejection because it had been through the fire and substantially destroyed.
We believe that to introduce this evidence would be to lead the jury astray and ask them to speculate as to which of these weapons might have coincided with the pattern thrown by the weapon, AR-34-A -- Government Exhibit 34-A, or any other weapon on that day.
MR. SIKMA:  Your Honor, I think that what is important about the charts is that it indicates not precise direction -- we don't know exactly where the person was standing, but we do know that he was standing close to the vehicles and {3093} we do know that it would be possible for a person in the vicinity of the vehicle to fire a round and have it go into the trunk from the area around where the agents were found dead; and we think that this is relevant to show that.
These arguments of the Defendant's counsel all go to weight and not to admissibility. It is important to show that there is some disparity, but Mr. Taikeff brought out the fact that the question about the ejection of rounds from the chamber talked about an area, 50 or 60 feet.
We want to give the jury some idea as to the difference between a variety of different firearms, but we also think that this shows that a firearm of this kind would be capable of throwing a round, an expended round, ejecting it into the truck of the vehicle; and the patterns which are shown on the Government Exhibit are all -- relate to rounds which landed approximately the same height from the ground as the outside of the trunk, in other words, so that it would have to clear the trunk area in order to get into the trunk. There were barriers set up so that they could be ejected at that ground level.
That was the pattern for one instance, the shoulder firing, and the other instance, firing from the hip level. In each case the landing pattern is several inches off of the ground, and it was measured to correspond to the ground {3094} level of the opening of the trunk, so I think that also bears some relevance to the issue which we are talking about here.
I would say finally that this clearly is a matter which goes to the weight, and defense counsel can argue about what it does or does not show; but I think that the jury is entitled to view the disparity of the AR-15, to see that it would be capable of putting a trunk -- or putting an expended round into the trunk of the '72 Chevy Biscayne.
MR. LOWE:  Your Honor, an expert under the Federal Rules of Evidence and all the cases relating thereto, including cases before we even had Federal Rules of Evidence, make it clear that an expert is only appropriate where the items or the facts to be adduced are not susceptible of determination by a lay person or by a finder of fact, namely, the jury.
Here the witness can testify that the AR-15 ejects expended cartridges, that they go generally to the right. We will stipulate that or concede that, or let him just testify they generally go to the right; and I would have no objection in saying they are generally ejected somewhat right and to the right, and from that point any juror can make a determination that if a person, for example, standing in the right location with reference to the trunk, that if {3095} it goes up and to the right and it is fired from the shoulder, that it can get into the trunk; and similarly, if it is fired from the hip, which is obviously at least the height of the opening of that trunk as anybody can see looking at the pictures, that again if the rounds go up to the right, if he is standing in the right place, it is possible for a round to go into the trunk. You don't need an expert, but to have an expert to give or extract information from five different weapons that have a disparity in results such as these five have -- and it could have been done if they had taken even five more, and the results would have been more diverse.
We don't have an AR-15 which is Government's Exhibit 34-A or any other AR-15 that was in the Jumping Bull area that would have fired a pattern anything like that. I think that we could concede that any AR-15 that was there on June 26th would eject cartridges generally to the right, and they would go generally up out to the range -- or off to the right.
If that's the testimony of the expert -- I am assuming, that's the case -- I see what appears to be the ejection portal on the right side of the weapon, it looks like that would be out at least horizontal or upward. The expert can testify to that without introducing experimental tests on particular AR-15's which are all over the board.
{3096}
THE COURT:  What does the Government contend the evidence is that is now in the record with reference to the position of the person who fired the AR-15 you are talking about?
MR. SIKMA:  Your Honor, we contend that the evidence at this point shows that the individual was at the time to the left of the vehicle in the general vicinity of the cars, within the number of feet, within the 10 feet of the vehicles, at the time a round was fired; and he was within the distance which the round could have gone into the trunk.
We are making a general proposition -- we can't precisely state exactly where the individual was standing; but I do think that the evidence of the experts at this time shows that someone who fired a round, no doubt an AR-15, or at least a .223 center fired weapon, fired a round that was within a few feet of Special Agent Coler; that the pattern of blood on the side of the vehicle shows that Special Agent Coler was laying very close to the vehicle, so if he was laying within a foot or two of the vehicle -- and the testimony of Dr. Noguchi showed that a round was fired into his head from within, inside of four feet, I think that this would be relevant to show that the rounds could have ejected practically straight forward or slightly to the right and forward; and I think that this is all relevant to the issue in question.
{3097}
Also, other Government witnesses -- one other Government witness testified that the Defendant himself was seen right in the area of the cars where the bodies of the deceased agents were lying, and that he had in his hand an AR-15; and I think that makes this evidence extremely relevant at this point.
Even the evidence of the forensic pathologist who testified that a weapon was placed against the hand of Special Agent Williams and was fired, where the bullet went through his hand and then through his face and into his head, taking away part of the back of his skull, I think that's evidence also that the person who fired a round of extremely high velocity -- which an AR-15 is -- was standing in the area of the vehicle.
And I think that these things are all relevant since they tend to show and connect up to the evidence which corroborates the eyewitness testimony, and I think for this reason, shows the possibility and even the probability that this could have taken place.
MR. LOWE:  May I just comment on two factual assertions which I think are not in the record.
First of all, without checking, I can't say certainly, but it is my recollection that Michael Anderson only testified that he saw Robert Robideau and Peltier down by the cars; and from a distance of 200 yards, as I recall, {3098} he did not testify as to what kind of weapons he saw.
I believe that Norman Brown was the person who testified that he had seen Peltier with an AR-15. I may be mistaken on that, but that's my recollection.
The second thing is that there is no testimony from anybody that a .223 round or rounds were fired into the agents as the three fatal shots or any of them, and in fact there were no cartridge casings around the agents. There is only one in the trunk and Dr. Noguchi clearly said that the high velocity -- he did not say very high, he said high velocity weapon was a .30 caliber and possibly less; and the testimony of at least one other witness -- I can't recall whether it was Dr. Noguchi or one of the other witnesses -- but one of the witnesses stated it was a high-powered weapon from one of the cartridges that was found. Mr. Butler had testified he had an M-1, and there were other weapons. I think a .303 was testified to. There is a .303 in evidence.
What the Government wants the jury to do is speculate that because of one particular pattern -- and there is no question they are going to pick one or two of these patterns, not the one that goes to the rear obviously, that wouldn't fit their theory -- they are going to argue that one of the patterns goes forward, the jury should infer that the round was fired by the agent killed.
{3099}
There are many other explanations which are entirely consistent with the innocence of Mr. Peltier or whoever fired the weapon that had that cartridge in it.
The jury is being asked to speculate. It is not proper to have them speculate with these five tests.
It is certainly proper for the Government to adduce that the weapon fires to the right and slightly upward. We have no objection to that. I understand that's the fact. The jury can draw whatever inferences they want, and the Government make argument.
THE COURT:  Isn't that still speculation?
MR. LOWE:  If the jury believes it is speculation, then the jury is not supposed to do that. I think the jury could infer from a shoulder fired shot, the expert says the round goes out to the right and either slightly upward or horizontal -- obviously if there is a place where a person could stand so the cartridge ejecting drops into the trunk, it is a matter of trial and error to find that place. That's not speculation, it is logic and a fair inference from the evidence. That's not to say that when a particular weapon is fired, the weapon went in a particular direction and distance. That's different than saying we have experimental data about particular distances.
(Counsel confer.)
MR. LOWE:  The introduction of such tests which are {3100} really not relevant to the weapon at hand lend a suggestion of formality and dignity and a bolstering effect to what otherwise is a lay person's finding of fact which is within the province of the jury.
THE COURT:  You spoke of an expert. Actually I do not view this as expert testimony.
MR. LOWE:  Well, your Honor, he has been qualified as a firearms expert. I think the Court cannot ignore the effect that will have on the jury.
He will also give testimony, I believe, that these weapons are AR-15's, that they are the ordinary run-of-the-mill, not special in any way. I think that takes an expert to say that. I don't think they could introduce this evidence with just a lay person who happened to find AR-15's or buy them in a sporting goods store and takes them out and shoots them. I think they are going to have to rely, and want to rely on the fact that he is an expert in order to introduce this evidence.
I expect they would take the same position, that they are entitled to have an expert give testimony and give his opinion.
THE COURT:  Mr. Sikma, what will the testimony be?
MR. SIKMA:  The testimony will be that this firearm's examiner is an expert. I would say perhaps that he will testify that he examined the firearms and found them to be {3101} in working condition. I believe he will testify --
THE COURT:  (Interrupting) You mean the firearms used in this test?
MR. SIKMA:  Yes, your Honor. I think that that perhaps is necessary to show that they were a random selection. The Government does not intend, as counsel indicated, to show any pattern in particular. We are using this as illustrative for the purposes of the jury, to help them understand; and it is also a visual aid which the Government, I believe, is entitled to use in the presentation of its case.
We intend to show -- or we agree that we don't know precisely where people were standing with the exception of the person who fired the round into Special Agent Coler which took away a part of his forehead.
Now, we know we can tell just about where he was standing because of the blood on the car and also because of the fact that that round was fired from within inside of an area of four or five feet, so we can tell practically where he was standing. We want to be able to show the possibility.
We also want to show that this isn't idle speculation, that the realm of possibility exists that these rounds are scattered in a particular area with a particular type of firearm, and I think that that is relevant to illustrate {3102} that to the jury, and I think it has important probative value.
{3103}
MR. LOWE:  May I just point out, I think Government counsel can verify this, no other ejections were run, for example, like the M-1's.
MR. SIKMA:  No, they were not. We didn't find an M-1 round in the trunk. That's why we didn't run one.
MR. LOWE:  I think that bears witness, Your Honor. Another reason why this shouldn't be presented is because it only presents the jury with one type of weapon when it's clear that other weapons would have been used at the same time, and they don't intend to do anything like that.
THE COURT:  Mr. Lowe, in what way do you feel that this is prejudicial? In fact, it seems to me, in fact, that it would be helpful in some respects to the, it would indicate that there is no fixed pattern of ejection from weapons of this type.
MR. LOWE:  Well, first, Your Honor, we feel that it is simply not testimony which is relevant because it does not concern a weapon in this case, and there has been no relationship established that this weapon in this case would have thrown one of these patterns as opposed to some other pattern.
I don't think that Mr. Lodge can offer that testimony. I, secondly, I think it provides a basis upon which the jury could speculate that the rounds from this weapon fired forward and to the right when in fact it is equally, as a matter of fact, it is more probable that they fired backwards and to the {3104} right. If you take the predominance of the number of weapons in this particular test we don't feel there's any proper basis to give them the fact that it may look like there's more weapons that fired to the rear than forward. It does not eliminate the fact that the jury will be speculating. They will be asked to speculate whether this one would have been in the minority and fired forward as opposed to backwards, and in turn to speculate whether these are representative, or in fact any other representative would eject forward than these two particular weapons.
We might all say, well, you know the rule of the statistics would indicate that it probably would, and that's asking speculation here. Because we don't have enough of a statistical base to even offer such testimony as being representative, and we feel that it's asking the jury to speculate on a matter that they can understand as lay people without such examination if they simply have testimony of an expert to the general examination as to the way an AR-15 ejects.
THE COURT:  If the witness is permitted to take the stand and testify as to having experimented with five different AR-15's and testify as to the manner in which those AR-15's ejected, how is that any different than simply illustrating that by this exhibit?
MR. LOWE:  I would object and I thought I made clear {3105} that if the witness gives testimony that they eject generally to the right we're willing to concede and stipulate to that. And for one thing, I think if I'm correct that the portal was on the right, and it wouldn't take the jury two seconds, looking at the weapon, to see that it couldn't possibly eject to the left. So that's just a simple fact. And that they eject either horizontally or upward, I'm willing to do that simply to enable the Government to have that much. And deprive them of a right in this point to say that we were depriving them of something they ought to be entitled to show. I have no objection to say that it ejects slightly upward or to the right. I simply don't know what the answer is, what the expert says is the general pattern. But all of the rounds fired from any AR-15 that we're aware of would follow that general pattern. That is, to the right generally and either slightly upward or horizontally generally. That is any AR-15 that I think anybody has ever fired. But then when you get into specific characterization of specific AR-15's, that is whether they fire forward or backwards, that is only getting to the objectionable part of the testimony which we would of course not want to have admitted.
THE COURT:  On cross-examination Mr. Taikeff examined some witness at length as to the distance that a weapon could eject a spent cartridge. And you were specifically relating this to the area of the vehicle. I am unable to determine at {3106} this time what the relevance of that cross-examination is, and I'm wondering if it has anything to do with the evidence that the Government proposes to present on this exhibit, proposed Exhibit 34-I?
MR. TAIKEFF:  Your Honor, I can tell Your Honor what was on my mind, and should I choose to argue the point, what I would argue to the jury is very simply this:  A search was made in a circle with a diameter of approximately a hundred twenty feet. There were no cartridges found within there. I had to, except for three I had to eliminate the possibility with expert testimony that it was possible to fire any of those weapons and in the process of the shells being ejected having them go more than sixty feet in one direction or another from the car. That is to say, have them fly so far that if someone searching in the circle with a sixty foot radius. I started out with a sentence that I can't finish. I have to start it over again.
I had to show that they could not be ejected more than sixty feet so that a person looking in that circle would have to find every single cartridge that was found, that was shot. And that was the purpose of it.
It doesn't relate in any way to this. I would just like to add one thing on this particular argument which I have followed. I think the point that is most significant is the fact that if one wanted to establish for a jury that if {3107} you held an apple in your hand and reached outside an open window and released the apple it would fall to the ground. You wouldn't need much more than that testimony. It is not necessary to bring scientist into the courtroom or experts into the courtroom to run elaborate tests, first with an apple and then with an orange and then with a pineapple to show that gravity works the way we've always known it to work.
But the Government does, by offering this testimony of an elaborate test, multi-color diagram and an expert is improperly bolstering their case by showing the care and the concern with which they have pursued every possible aspect of the case. And it's nothing but window dressing and an attempt to guild the lily. It takes very little common sense to recognize that when a gun is designed with a portal, the ejection portal on the right hand side that the cartridges generally come out in that direction. Whether they go forward, whether they go backwards or whether they go directly to the right or somewhere in between, they tend to eject to the right. We all know they eject a certain distance, probably more than one inch and surely less than sixty feet.
Therefore, any person who stood in an infinite number of positions, such that the semicircle in which those shells could fall included the trunk of the car, the shell would fall into the trunk of the car. It is an obvious elementary fact of everyday life. It doesn't require an expert to come in and {3108} make it look like some very fancy scientific work had to be done in order to reach that conclusion, and it constitutes improper bolstering of the Government's evidence.
MR. SIKMA:  Your Honor, I would say one thing, though. We're not dealing with something that necessarily is in probably within the common knowledge of all the jurors. I think this is a bit more than mere window dressing. Firearms tend to be something that many people know little or nothing about. And while it would perhaps not be necessary for an expert who's as qualified as the expert which we will call to testify to these things, nevertheless since he was working on the case he also ran these tests and I think that if any other witness could testify to them he certainly could.
THE COURT:  Ruling on this matter, I'm going back to the basic definition of relevant evidence which Rule 401 provides, "That means of evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
On the basis of that definition I find the evidence is relevant and it does not appear to me to come within the prescription of Rule 403, "Although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading of the jury."
{3109}
I hold that it is relevant, it is simply a matter then of the weight for the jury to give the evidence in construing it along with the other evidence in the case, particularly the evidence of the expert pathologist as to the direction of the bullet, direction from which the bullet came that killed the agent. And the probable position from which the rifle could have been fired.
It certainly can be argued that the weapon that was used, well, can be argued that of course that there's, as to whether or not an AR-15 was in fact used, and if it was in fact used, if it might have, depending upon the position of the operator, have expelled the cartridges in such a way that it couldn't have possibly gotten into the trunk. This seems to me is circumstantial evidence which is relevant, and the objection to 34-I, assuming a proper foundation is laid, is overruled.
MR. LOWE:  All right. Your Honor, since there is an experiment that was conducted I would like to have the opportunity to voir dire the witness briefly out of the presence of the jury before this testimony is given. And I don't mean right now, but prior to him being called. Maybe that it would be after lunch. We could do that in order to establish to the satisfaction of the Court and to counsel that the experiment relates realistically to the facts which the jury could properly find from the evidence in this case. {3110} And I think that's a proper request.
THE COURT:  I would grant that request.
MR. LOWE:  Thank you, Your Honor.
THE COURT:  Did you want to be heard on that?
MR. SIKMA:  Yes, I would like to be heard on it. I think that the questions that I will ask this witness will bear out the fact that it relates to the facts in this case. And I don't see why it is necessary for this witness to be voir dired outside of the presence of the jury. I really don't view the tests that technical, but I do understand that the facts were set out, or the test was set out in such a way that it would be relevant to this case, and that was the purpose of it. And I don't think that it is necessary to have a hearing outside the presence of the jury for this, these facts are set out.
If it comes up that they would not be relevant, why I understand that an objection could be sustained. But I think by way of offer of proof we will show that this particular witness will establish that the tests were conducted in such a manner that they would be relevant to this case. Otherwise the items themselves would not even be admissible.
THE COURT:  Well, I'm going to permit it.
MR. LOWE:  Thank you, Your Honor.
THE COURT:  Permit the voir dire.
Are we now ready for the jury?
{3111}
Jury may be brought in.
When will this witness be called, Mr. Sikma?
MR. SIKMA:  Next witness, Your Honor.
There's quite a bit of evidence to go through, and I probably won't be finished with him before noon. So perhaps we can do it after the jury goes out at noon hour.
THE COURT:  Very well.
(Whereupon, the following proceedings were had in the courtroom and presence of the jury:)
MR. LOWE:  I believe we finished direct examination, have we not?
MR. CROOKS:  Yes, I have, Your Honor.
THE COURT:  You may cross-examine.
MR. LOWE:  Thank you, Your Honor.