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

VOLUME XVII
{3458}
 TUESDAY MORNING SESSION
 April 7, 1977
 9:00 o'clock, A.M.

(Whereupon, the following proceedings were had and entered of record on Thursday morning, April 7, 1977, at 9:00 o'clock, A.M. without the hearing and presence of the jury, the defendant being present in person:)

THE COURT:  The marshal service has informed me that one juror required some minor medical attention this morning and that juror is being taken to the clinic and probably will be 9:30 before they return.
There were some matters when we recessed yesterday evening that were pending. One of the problems we are continually facing in this case is the matter of evidence that is admissible or not admissible, and I'm sure Counsel for both sides are aware that I construe the issues in this case to be as set out in the indictment together with the defendant's plea of not guilty.
Now that the government has completed its presentation of evidence, the Court's position with reference to evidence to be offered by the defense is simply that evidence relative to the issues and the evidence presented by the government will be admitted. I will state, however, that witnesses who have testified will not be impeached by a showing of misconduct of the Federal Bureau of Investigation unless that misconduct relates to the testimony of the individual witnesses {3459} who have testified or unless that misconduct relates to exhibits that have been received in evidence. Under that standard I find no relevance in the Anna Mae Aquash matter.
With reference to Myrtle Poor Bear, she not having testified in the government's case, I can see no relevance in the matter of her testimony in a prior proceeding or her activity in connection with the extradition proceeding. The only thing that's relevant to the extradition proceeding is that they were had and the defendant was returned. Whether or not he should have been extradited is not an issue before this Court.
Some days ago I reserved ruling on Exhibit 166, the last paragraph of 166. The objection to that exhibit is sustained on two grounds. There is no foundation for the exhibit and it is irrelevant. The fact that the paper may have been received from the government does not establish its authenticity for evidence purposes and as near as I can determine, the purpose of the offer was to impeach Doll and possible Parlane. It's irrelevant for that purpose. Parlane testified and was never questioned on it and it is irrelevant for the impeachment of Doll. I shouldn't say he wasn't questioned on it. He wasn't questioned as to whether or not he had heard such a statement. He was simply questioned as to whether or not he had included that in his report.
Exhibit 185 and 186 will not be received. That's the {3460} list of rifles from which, that would accommodate certain ammunition. In the absence of a showing those rifles were actually found or in the area, those two exhibits have no probative value. Other than that, what is already been presented through the questioning of the witness and the presentation of the information to the jury.
Then we come to the matter of the laboratory report. I have examined those laboratory reports. The reports in their present form are going to be excluded under 403. They appear to be confusing and would be meaningless and cumulative to the jury. Furthermore, in the form that they are in some of them duplicate others. I have particular reference to 134 and 187. However, with reference to those laboratory reports, if the parties can get together and agree on what in those reports might be appropriate to present in evidence under Rule 1006, which is a summary evidence, I would give consideration to that. If the parties cannot get together, I would give consideration to an offer of a summary taken from those exhibits by the defense on those matters which they feel are relevant to their case. In other words, it would have to be relevant to what has been brought out on oral examination or otherwise shows some inconsistency to that which has been presented.
Exhibit 177 because of the discrepancy between it and information contained in 134 and 187 may be relevant but {3461} I'm going to reserve ruling on that at this time because standing alone it would not be particularly helpful and if Counsel can extract a summary from 134 or 187 that would make 177 meaningful to the jury, I would then consider receiving 177 because it may show up an inconsistency.
{3462}

MR. LOWE:  Of course, your Honor, there is an inconsistency right internally within the document. That by itself has an internal consistency which impeaches one of two witnesses, at least casts doubt on Special Agent Hughes' testimony because Mr. Hodge shows one cartridge and Mr. Hughes shows two.

THE COURT:  I have not turned that down. I do recognize an inconsistency. I may admit that, but I want to give you a chance to see if you can get something meaningful out of 134, 135, 187, 188, 189, 190, 191 and 192.

MR. LOWE:  I gather what your Honor is saying, you are reserving final decision on those documents which were offered, except that you are indicating that you intend not to receive them as they were offered but to give us an opportunity to work out some summary or some culling of some sort.

THE COURT:  That is right.

MR. LOWE:  The offer is still pending as far as you are concerned until we come up with some suitable alternative?

THE COURT:  Yes. The exhibits in their present form will not be received. I will give you an opportunity to work out something, some summary or something from those exhibits which would have some probative value and would {3463} be presented to the jury and would not be misleading or confusing.

MR. LOWE:  We will still try to work something out in view of your ruling to avert having to recall Mr. Hodge. I will get together with Mr. Sikma sometime today or Monday to try to work it out.

MR. HULTMAN:  Would you read the last total list? You read off the total list. I don't have copies on all of them, but I know they are reports, so I would like to have it.

THE COURT:  The list which I just read was 134, 135, 177 -- 177, of course, I think the Government produced?

MR. HULTMAN:  Yes.

THE COURT:  187, 188, 189, 190, 191 and 192.

MR. HULTMAN:  Thank you.

THE COURT:  Those are the lab reports.
Now, unless counsel has something more to present at this time, we will recess until the jury can be brought in.

MR. TAIKEFF:  There are some matters, your Honor, if you have some time.

THE COURT:  Very well, you may proceed.

MR. TAIKEFF:  Pursuant to the position taken by the defense yesterday, we wish to notify the Government of two additional witnesses who have been qualified since the time we recessed yesterday afternoon. That is Lavina Deloria -- {3464} (spelling) D-e-l-o-r-i-a -- and Jimmy Durham -- (spelling) J-i-m-m-y D-u-r-h-a-m.
I believe that an application was made which is pending before your Honor, and that is for the Government to reveal the names of the two Special Agents who prepared the Myrtle Poor Bear affidavit.

MR. HULTMAN:  Well, your Honor, one, I resist, and two, I think the matter is now moot, and thirdly, I do not know, standing here, but I want, one, the Court to know that I resist that particular motion; and two, I feel that it is a moot matter; and three, if the Court does make such a ruling, I will, of course, proceed accordingly to make inquiry. I don't even know it is a fact that it is two individuals, whether or not it is a lawyer or anyone.

THE COURT:  I think that in fairness to the defense you should reveal the names. I don't know that it has any relevancy.

MR. HULTMAN:  I will make the search. I am not prepared because I don't --

THE COURT:  (Interrupting) Maybe the defense can find some relevancy if you reveal the names.

MR. TAIKEFF:  Your Honor, I would like to address myself to what appears to be the articulated basis of your Honor's ruling in connection with the Myrtle Poor Bear matter. I gather from what your Honor says that if {3465} we could produce a witness who would say that he or she was approached by Agents of the Federal Bureau of Investigation and offered an inducement of one kind or another to give knowingly false testimony against Leonard Peltier in order to assist in the successful prosecution of him, such evidence would not be relevant if that person was not called to testify during the Government's case. Do I misunderstand, your Honor?

THE COURT:  It depends upon who the person would be -- I mean who the FBI Agent was.

MR. TAIKEFF:  One of the Agents involved in the central part of the investigation of this case.

THE COURT:  Did he testify in this case?

MR. HULTMAN:  Well, your Honor, might I interpose? Is the statement that counsel is now making that money was given? The postulates that you have just made, counsel, are you postulating that is what with an offer of proof you will be showing as far as Myrtle Poor Bear?
I want to make sure we are on the same track here.

MR. TAIKEFF:  Your Honor, if Mr. Hultman would listen to what I say --

MR. HULTMAN:  (Interrupting) I am trying to. That's why I am asking.

MR. TAIKEFF:  One of the very few talents, if I have any, is to articulate clearly and unambiguously.
{3466}
I put a question to your Honor to see whether or not I understood the basis of your Honor's ruling. I put it to your Honor, what I would say is a hypothetical.

MR. HULTMAN:  That's what I wanted to know. You are talking first about Myrtle Poor Bear, and then you propose a hypothetical.

MR. TAIKEFF:  It seems to me that is what your Honor says.
It also seems to me it doesn't matter which Agent it is if in connection with his official duties, a Special Agent of the FBI went to someone and said -- I am giving your Honor an extreme hypothetical so there won't be any ambiguities -- "We need some extra evidence against Leonard Peltier."
Is your Honor saying we cannot introduce evidence of that through a person so contacted by the FBI because that person was not called?

THE COURT:  I am not going to give you a ruling on a hypothetical question. I am simply stating that evidence relevant to the issues and relevant to the evidence which has been presented by the Government will be admitted; and I further stated that witnesses who have testified will not be impeached by a showing of misconduct of the FBI, in other words, general misconduct of the FBI.

MR. TAIKEFF:  First of all, we don't intend to offer {3467} general misconduct of the FBI evidence.
Secondly, we don't offer it to impeach a particular witness as to that particular witness' testimony, except to the extent that any witness may have been asked whether that witness participated in any illegal activities in an effort to convict the Defendant. Other than that we don't offer that as impeachment evidence. We offer that as affirmative proof, evidence in chief, of the effort by certain members of the Federal Bureau of Investigation to falsely and improperly assemble evidence against the Defendant; and we will call two separate witnesses, and I am not talking about Myrtle Poor Bear -- two separate witnesses, one of whom will testify to serious threats in an effort to induce that witness to give false and perjurious testimony; and we will call another witness who will say that he wasn't threatened with physical harm, but he was threatened with a prosecution for which there was no factual basis if that person did not assist the FBI.
Now, the Myrtle Poor Bear episode is one additional episode in the sequence of events which we have uncovered concerning the Government's effort to prosecute Leonard Peltier successfully when otherwise they might not be able to do so or entitled to do so.
I quite frankly, your Honor, with all due respect to {3468} the Court, cannot possibly understand your Honor saying that such evidence is not relevant in this case.

THE COURT:  I want to make it clear I did not say that such evidence is not relevant.

MR. TAIKEFF:  Myrtle Poor Bear is just one more similar type event. In her case there were, we believe and we have subpoenas out --

THE COURT:  (Interrupting) Just a moment. I also did not say it was relevant, I just said I am not going to rule on it at this time until I see specifically what the evidence is.

MR. TAIKEFF:  We won't attempt to put on the Myrtle Poor Bear evidence until we produce the evidence in the other matters. It won't come in by a vacuum. Perhaps by then we will have laid a sufficient foundation to satisfy your Honor that there is at least a fact question for the jury to determine whether or not the FBI conducted themselves in an improper and illegal manner in connection with the prosecution of this Defendant for these charges.

THE COURT:  Well, let's assume that they did not. How does that bear on the question as to whether or not this Defendant is innocent or guilty, based on the evidence presented by the Government?

MR. TAIKEFF:  That's precisely the point . I assumed your Honor might want to pose this question. Let's {3469} assume that they did not --

THE COURT:  I meant to say "did".

MR. TAIKEFF:  All right. If you assume that they did, the specific kinds of evidence that they wanted certain witnesses to offer, which the witnesses knew and told the FBI was not true, are identical in certain respects to other items of evidence which the Government has adduced through witnesses similarly situated.
{3470}
And it only goes to show that as to certain witness's testimony the FBI succeeded in getting certain witnesses to give that testimony. When someone was in an exact same posture to perceive, to remember and to be a witness to the very same events. Say A it isn't true, and B the FBI pressured me to say those things.
Now, if witness B says I was threatened to say X, and X is not true and I was there with A and we both saw and it couldn't be that, I didn't see X, but A saw X, and the witness A testifies to X it raises a serious question as to both the conduct of the FBI in connection with this prosecution and the veracity of the testimony of A with respect to subject X.
Now, the witness who comes to testify, if that witness has been intimidated, is successfully intimidated; and hence will not say this isn't true. Obviously a witness who has been successfully intimidated isn't going to get up on direct, and give the testimony, and on cross-examination say, "Oh, by the way, it wasn't true, I did it only because the FBI bent my arm." But if someone who was standing next to witness A and who observed the same events, and who says affirmatively X is not true, and the FBI came to me and threatened and said you must X or else, then we prove the nature of the FBI involvement in this case, and we also tend to prove by rebuttal evidence the falsity of X which is the {3471} testimony given by A. It's a very simple proposition.
I just can't understand how Your Honor thinks that it's something that we shouldn't be able to prove, or shouldn't be allowed to prove in this case.
Indeed one of the witnesses, I'm reminded by Mr. Lowe, testified that he was physically threatened and tied in a chair and kept that way for three hours. And now maintain --

THE COURT:  And that was brought out.

MR. TAIKEFF:  That was brought out, but another witness will testify that the very same critical testimony that Anderson gave here in his direct was something which isn't true and which the FBI tried to bend his arm to say was true.
Now, in an earlier phase of this case the Government asserted that a certain witness was being coerced by certain forces; and Your Honor's position with respect to that witness's disavowing of the coercion was if there is a coercion the witness who has been successfully coerced is not going to tell the truth about having been coerced. Now, I don't see why it's okay for the Government to take that position, but it's not okay for the defense to take that very same position.
If Your Honor did not believe Angie Long Visitor's unqualified assertion that the Government was having a fantasy about herself being coerced and Your Honor's view of it {3472} therefore must have been based upon the fact that if indeed she was coerced we cannot accept as credible her denial of the coercion. That principle must apply equally in this situation for the defense. Your Honor doesn't have to believe the witness we produce but Your Honor is not the fact finder.

THE COURT:  I'm not the fact finder.

MR. TAIKEFF:  I understand that. If someone says X and someone says minus X, that by classical definition is a factual dispute that can only be resolved by that jury, providing it's relevant.
Now, it's clearly relevant. If someone says that they saw Leonard Peltier down by the cars and another witness says that the FBI insisted that a certain witness testify to that, even though the witness said that wasn't true, he was never down by the cars, then surely that goes to the question of whether the first witness was telling the truth in that particular sense with respect to that particular fact.
Now, Myrtle Poor Bear may or may not have been threatened. We have an ongoing investigation with respect to the question of whether or not she was threatened as well as being manipulated. We have concluded our investigation in that regard. But it makes little difference whether you go to somebody who is totally competent and threaten them with physical harm or with an unfounded prosecution, or whether you go to someone who is in one sense or another a mental defective, {3473} and you manipulate them and get them to cooperate with you. I can't imagine that it makes any difference if believed, and at this particular juncture, just as Your Honor takes a certain view of the Government's evidence when deciding a Rule 29 motion, Your Honor doesn't decide whether it's true or not unless it is incredible as a matter of law.
Your Honor need only determine whether if true that testimony will or could influence the jury's decision. Now, I don't think Your Honor can find, with all due respect to Your Honor, that if the jury believe that the FBI did things like this to the three witnesses that we will produce, including Myrtle Poor Bear, that they can have sufficient confidence in the prosecution's evidence. The evidence that concerns the important stuff in this case, not the myriad of window dressing that we heard. I'm astounded at the suggestion, if that's the suggestion Your Honor has made, that we cannot prove conduct like that.
 Now, I said to Your Honor yesterday that, and I trust that Your Honor accepted it for what it said, we don't intend to assert any general wrongdoing on the part of the FBI. It is not our purpose here to attack the FBI generally, or to rake up any old episodes of recent United States history. What we're talking about, what we intend to introduce evidence about, is conduct of those agents of the FBI who worked on this case which concerns itself with an effort to convict {3474} Leonard Peltier of the murder of these two agents, and that's all.
And, Your Honor, I am just amazed that Your Honor even suggests that conduct of that kind, if we have evidence of it, is not something that the jury should hear.

MR. HULTMAN:  May I respond?

THE COURT:  You may. I just want to ask counsel, does the, is it your contention that the Anna, or is it Anne?

MR. TAIKEFF:  Anna Mae.

THE COURT:  Anna Mae Aquash matter falls in the category you have described?

MR. TAIKEFF:  No, Your Honor. I made that concession yesterday that it does not. I told Your Honor that there are certain members of the defense who strenuously disagree with me and although we usually work as a team and we proceed by consensus, this is one issue where I take individual action and concede to Your Honor that it is not relevant.
If before we rest we develop a sufficient foundation, a sufficient annexus, I will not be ashamed to come to Your Honor and say I've changed my mind and I offer to prove that. But I made that concession yesterday.
The facts of the Anna Mae Aquash episode are not irrelevant in my opinion to this trial. I'm in a minority in the defense team, but my concession is on the record.

THE COURT:  Well, I don't want counsel to feel that I {3475} am foreclosing you from bringing in the witnesses of the type that you have suggested. Whether or not that evidence is admissible I have not yet determined in my mind.

.................

MR. LOWE:  I have a 60 second application. The Clerk can strike me down physically if I go over that time.
In laboratory report, PCM052 -- excuse me -- 0520MM, dated February 10, 1976, there is a reference to laboratory report, PC-M0794MM, dated 12-16-75, which we do not have to the best of our information and belief; and we do not believe we received a copy from the Government. I checked with Mr. Sikma and Mr. Hodge yesterday as relates to firearms, neither of them can produce a copy; and I am confident in good faith that they looked in their files and they didn't have it.
We would call on the Government to produce that laboratory report, or if that is an incorrect identification of the laboratory report in the first cited laboratory report, we would ask for a correct identification of it so we can use it.
We believe it is Brady material. I will give this card to Mr. Hultman. I want to put it on the record. I realize they have to make a search. Mr. Sikma said he would try to find it, and I will check again. This is the reference (handing).

{NOTE:  Upon the release of FOIA material the defense brought this matter on appeal..the appeal court granted an Evidentiary hearing C77-3003  5-22-85...once again in front of Judge Benson}