LEONARD PELTIER TRANSCRIPT; AGENT COWARD

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

AGENT FREDRICK COWARD
ALSO SEE : TESTIMONY VOL 6
CROSS EXAM VOL 7
AS DEFENDANT WITNESS VOL 20
CROSS REFERENCE JIMMY EAGLE 17D

MR. HULTMAN: Your Honor, could I add just a note of maybe information to the Court? One, I would like to at least press on some way, and Coward, I have now sent him back and forth about three times now. He is here again. It would seem to me that whatever they are going to ask Coward they knew what they were going to ask Coward three {4060} months ago, and certainly know as of now; and secondly, it is my understanding Bragg and somebody else, I haven't seen them or talked to them. I think Bragg is here in the building and maybe some of the others are here in the building. My only concern, I think at some place we have got to press on.
THE COURT: We are going to press on. It is just a question of what direction.
The jury will be advised that the remainder of the afternoon will be spent on matters relating to offers of proof which must be taken up outside of the presence of the jury, so the jury may be taken back to their hotel.
Mr. Nelson, would you ascertain from the Marshal whether that is going to create any problem so far as our going forward now?
Mr. Taikeff, you may proceed.
MR. TAIKEFF: Agent Coward.
FREDERICK COWARD, JR.,
having been previously duly sworn, resumed the stand and testified further as follows:
MR. TAIKEFF: May I proceed, your Honor?
THE COURT: You may proceed.
DIRECT EXAMINATION
BY MR. TAIKEFF:
Q Agent Coward, you realize you are still under oath?
{4061}
A Yes, sir, I do.
Q Do you know the name, Marion High Bull?
A Yes, sir, I do.
Q Do you know the name, Melvin White Wing?
A Yes, sir, I do.
Q Do you know the name, Marvin Bragg?
A Yes, sir, I do.
Q Did you have contact with them in your official capacity relating to this case?
A Yes, sir, I did.
Q Can you tell us, if it is possible to do so, what the three of them have in common as far as this case is concerned?
A Well, basically information received concerning people involved in the investigation of the shooting of Coler and Williams.
Q And let's focus our attention on Marion High Bull first. When for the first time did you discover his existence?
A You mean the dates?
Q Yes.
A I don't know the exact date.
Q Was it sometime in the month of July?
A It is possible.
Q I am talking about 1975.
A It is possible.
Q If I suggested to you that it was in July of '75 in Rapid {4062} City, specifically in the Pennington County jail, would that refresh your recollection any?
A For Marion High Bull?
Q Yes.
A I believe so, but I am not quite positive.
Q Have you ever had any contact with a person by the name of Gregory Dewey Clifford?
A No, sir.
Q If I suggested to you that you had contact with Marion Allen High Bull on July 26, 1975, in Rapid City, South Dakota, would that in any way affect your independent recollection?
A Well, I recall talking to him, the exact date I don't recall, but if that's what it says on there, I would agree.
Q If your 302 on the subject showed the date, July 26th, would you accept that?
A Well, I believe so.
Q (Handing).
A (Examining) Yes, my name is on there.
Q How do you know that that wasn't a typographical error?
A Well, the only thing I can say about that is, I have done several interviews for several people, and that would be the best I could say, that it was on that particular day.
Q Was that the first time you had any contact with Mr. High Bull?
A Well, I believe I had two contacts, one is so indicated on {4063} that 302, and then another one, it might be weeks later or a month or two later.
Q Could it have been on August 1, 1975, in Rochester, Minnesota?
A It was in Rochester, Minnesota, yes.
Q Would this document which is Defendant's Exhibit 209 for this hearing only help you in any way in confirming that fact, that it was August 1, 1975?
A It was dated August 1st, 1975, and it was at Rochester, Minnesota.
Q This document, Defendant's Exhibit 209 is a typewritten statement, is it not?
A Yes, sir.
Q And it was signed in your presence on or about August 1, 1975?
A Yes, sir, it was.
Q Can you tell me where it was typed?
A Where it was typed?
Q Yes, sir.
A I believe it was typed in Rapid City, South Dakota.
Q Was that before or after August 1, 1975?
A I believe it was before.
Q So is it fair to conclude that when you went to Rochester, Minnesota, for the purpose of meeting with Mr. High Bull for what I understand is the second time, you had the typewritten {4064} statement with you?
A I believe that's correct.
Q Now, between Defendant's Exhibit 208, which was the 302 I showed you, and 209 which is the typewritten statement, there is apparently reflected two meetings with Mr. High Bull. Did you have any others?
A No, sir.
Q How did he come to your attention so that you went to see him the first time?
A Well, it didn't come to my attention. It came to Special Agent Dean Hughes, and he received some information about High Bull, who I believe was at the Pennington County jail, incarcerated, and of course, Dean Hughes asked me to go along with him. It was his interview, and I assisted him in the interview, the initial interview.
Q That's reflected in the 302 which is Defendant's Exhibit 208, the first document I showed to you?
A The first document indicates that Dean Hughes was the author, if you will, of that 302.
Q Was High Bull a Federal prisoner or a state prisoner?
A I am not sure. I possibly might have been both.
Q Do you know what charges he was facing?
A Well, I am not sure, sir.
Q Does that mean your memory is not sufficient when you say you are not sure?
{4065}
A No.
Q Or is there some other basis for confusion?
A Well, there is some basis for confusion because he was incarcerated there, and I don't know if he was incarcerated for a Federal or state charge or what they were; but I recall going there with Special Agent Hughes to interview him about the shooting deaths.
Q Is it fair to say that he did have charges pending against him at the time?
A Well, I would suspect one way or another he did, if he was in jail.
Q Isn't it possible to be in jail serving time on a misdemeanor as opposed to being in a prison?
A Oh, yes, sir.
Q What I am trying to ascertain is whether there were any unresolved charges hanging over his head at the time?
A Well, I didn't inquire as to that.
Q Were you present throughout the interview?
A Yes, sir.
Q And as far as you know, did you pay attention to it?
A Well, the best I could.
Q Isn't it a fact that High Bull was immediately advised by Special Agent Dean Howard Hughes, that High Bull should not discuss or talk about any of the criminal charges currently against High Bull?
{4066}
A It is possible. Does it indicate that in there?
Q I will let you look for yourself (handing).
A (Examining).
Q Second paragraph.
A (Examining) O.k., it does say that, yes.
Q All right. Now, we both know that it says that. Now, I ask you when it took place?
A Well, like I said, Special Agent Hughes was controlling the interview and asking those particular questions. I initialed it at the time it came back and would concur with what would be in there, yes.
Q All right. That's the second time you have told us that it is in there.
My question to you is, on July 26, 1975, was any such statement actually made by Special Agent Hughes to High Bull?
{4067}
A I don't recall that.
Q Is it fair to say that the 302 in question was transcribed on July 27, 1975?
A I don't know. Does it say that, sir?
Q It does.
A Well, that would have been the day or subsequent day that Hughes would have received it back first. He gets it first.
Q But you did initial it?
A I believe I saw my initials on there, yes.
Q And when you initialed it it was only after you had read it; isn't that correct?
A That's the procedure, yes, sir.
Q And by initialing it you indicate that you are satisfied with the content in the sense that there's no obvious mistake or no mistake that you recognize?
A Well, at the time that I would have read it and then initialed it I would have been satisfied with the content, yes.
Q You don't recall telling anybody that the second paragraph was wrong in the sense that no such statement was made to High Bull?
A Well, I don't understand, sir.
Q What part of what I said did you not understand?
A The point that you were trying to make, sir.
Q Well, I was asking you a question. I wanted to know whether {4068} at the time you signed it you had no quarrel with the contents of the second paragraph?
A I didn't have any quarrel with any of it, sir, because it was not my interview.
Q Was any of the individuals I mentioned to you before, High Bull, White Wing or Bragg facing murder charges?
A High Bull, Bragg and --
Q White Wing.
A Murder charges. It's possible one of them might have been, but I'm not sure.
Q The possible murder charges that I speak of, and I ask you this by way of attempting to refresh your recollection fully, would be the killing of the person's own two children. That refresh your recollection any?
A Yes, sir, it does.
Q In what way, what do you now remember?
A Well, the connection between High Bull and that particular statement that you just made was the fact that I was cognizant of the fact that High Bull some months ago, you know, prior to that stood trial in Rapid City. And I believe was convicted, or if he stood trial. You know, I'm not quite clear on that because there is, you know, there's a lot of cases going on and we don't pay attention to everybody's cases that are going on.
But I do recall one thing that Marion High Bull was {4069} involved with the death of two children.
Q On the reservation?
A I believe so, yes.
Q And they were his own children?
A I couldn't say that, sir.
Q Now, is it a fact, is it not, that he could not be doing his sentence for murder or homicide in the Pennington County jail? That is a fact, is it not?
A I wouldn't say it's a fact. I don't know if he was or wasn't.
But to answer your question I believe sometimes that people can serve a sentence in a jail such as that.
Q Do you know whether at the time you interviewed him he had already been sentenced in connection with the homicide charges against him?
A That particular interview?
Q Yes. That's July 26, 1975.
A I don't know that, sir.
Q Did you have any discussion with him or was there any conversation in your presence concerning his upcoming sentencing on the homicide charges?
A No. But I do recall that Dean was very careful because Dean had I believe talked to him before.
I went along with Dean to do the interview and Dean was very careful at the outset of this particular interview to {4070} make sure that he, High Bull, did not discuss anything concerning that particular case. But yet our main concern was the killing of Coler and Williams.
Q Do you know when Agent Hughes previously spoke to High Bull?
A Well, I'm only assuming, based on the fact that Dean Hughes was the agent in charge of that particular murder case with the two children, and whether he talked to High Bull before or not I do not know.
But he was familiar enough to know about him and asked me to go along with him to the interview.
Q And do you know anything about the events that led directly to your going either from Agent Hughes or from your own observations or other sources?
A The only thing I can say to that, sir, is he asked me to go with him because he wanted to talk to him concerning some facts concerning the killing of Coler and Williams. Specifically why and what for I don't know that.
Q Now, before you went to the Pennington County Jail in Rapid City did either you or Hughes get any legal process from the United States District Court in Rapid City?
A I did not.
Q When you went there and asked for him did you present any legal process from the United States District Court or any other court?
A Not that I recall, sir.
{4071}
Q Where did you interview this jailed person, Marion Allen High Bull?
A I was trying to think of that, too. You know, I've interviewed so many of these people and I re-interviewed him again in so many different places that it's possible we, whether interviewed him there --
Q Do you want to finish that sentence or --
A Well, the thing that came to my mind was the marshal's office. But that was in connection with other names. But I would have to say it was in the Pennington County Jail.
Q Tell me whether looking at the first paragraph on page 1 of the Defendant's Exhibit 208 suggests anything else to you?
A Okay. Well, we were at the Pennington County Jail, yes.
Q Is that where the interview took place?
A I just can't remember that, that whole incident.
Q Isn't it a fact that you interviewed him in the FBI office in Rapid City?
A It says that, yes, sir.
Q I understand, but I want to make sure there's no ambiguity in your answer. When you said, "It says that, yes, sir," were you first telling me something and then saying yes, you interviewed in the FBI office?
A Well, what I'm saying, I stated initially that I recall going to the Pennington County Jail and, you know, talking with him. But whether in fact we concluded the interview at the office {4072} I just can't, I can't put it together is what I'm saying.
Q You need a little time?
A Well, like I say there were so many people we talked to and so many different places it's very difficult.
Q Well, that's why you write 302's, isn't it?
A Well, it's to refresh our memory and put the facts down as have, yes.
Q So that when the facts are put down and then checked by you before you initial the report an effort is being made to make sure you have the most complete and the most accurate information for future reference?
A Well, that's true. That would be at the time we did it, you know. Things are fresher in your mind when you do it, you know, as soon as you get done with the interview, yes.
Q So what you are saying at that time it was fresh in your mind and as far as you know you put it down accurately on paper; is that correct?
A To the best of my knowledge I'd have to answer that way, yes.
Q So you wouldn't quarrel with the statements here that the interview took place in the Rapid City office of the FBI, would you?
A I won't quarrel with that, no.
Q Okay. How did you get the guy out of the jail?
A Well, I don't even recall that. I mean, you know, how that {4073} took place. I'm assuming, because I went with Dean Hughes and he was in charge of the interview, and any necessary comments or discussion about what we were going to do to remove somebody from jail would have taken place by him.
Q But you know that once a person is incarcerated he can't be taken out of jail, assuming he isn't bailed out, without an order of the Court or writ or some other document; isn't that a fact, based on your own experience as a special agent of the Federal Bureau of Investigation?
MR. SIKMA: Your Honor, I would object to this as calling for a legal conclusion of the witness.
MR. TAIKEFF: I asked him what he knows.
THE COURT: You may answer, if he knows.
A I don't know the legal definition or reason, but the only answer I could give to that would be that it would have been done on the basis of taking him to the office for privacy to conduct a thorough interview.
Q (By Mr. Taikeff) Now, do you recall whether or not you took more than one person that day out of the Pennington County Jail and took more than one person to the FBI office in Rapid City?
A Myself?
Q In connection with your official duties with Agent Hughes.
A On that particular day?
Q Yes.
{4074}
A I don't recall, sir.
Q Now, when you got to the office, the FBI office, was there any conversation at all, and I mean by that question either on your part, Agent Hughes' part or Mr. High Bull's part, about any benefit of any kind that might result from his being interviewed by you or otherwise assisting you?
A No, sir.
Q Did Mr. High Bull ask any question concerning whether you could help him with any of his cases?
A No, sir.
Q Did he ask you whether it would be possible for you to intercede in any way in connection with his sentencing?
A No, sir.
Q Did he ask for any money?
A No, sir, not to me.
Q Well, you were present, were you not, with Hughes?
A That's correct.
Q When I say "you" I mean you or Mr. Hughes or both of you.
A No, sir, would be the answer.
Q Did he ask for any special jail privileges to be arranged for him?
A Not to my knowledge, sir.
Q Did he say anything about why he was willing to give you whatever information he then gave you?
A Not that I recall.
{4075}
Q Do you know whether he had a lawyer at that particular time representing him on at least one case?
A I don't recall that, sir.
Q Do you recall whether you contacted any attorney to ask permission to speak with Mr. High Bull?
A During that interview?
Q Prior, prior to that interview or during it, but by the time the interview was terminated.
A I don't recall that I did. Possibly Mr. Hughes did.
Q Taking into consideration your understanding of the significance of a defendant being represented by an attorney and what are the required practices of the FBI, do you think that if contact was made with his attorney to get permission to speak with him its the kind of thing which would go into a 302?
A Well, Dean Hughes had a reason to go there. I went with him and he put it into a 302.
Q Put what into a 302?
A The information.
Q About the interview?
A Yes, sir.
Q But I'm asking you about that very special aspect of your, or his activities. I'm asking you whether as an ordinary procedure --
MR. TAIKEFF: Could I finish my question? There's no {4076} jury here. There's no need for counsel to stand up until I finish my question. No one's going to be prejudiced.
MR. SIKMA; You may finish your question, Counsel.
MR. TAIKEFF: Your Honor, I appreciate Mr. Sikma's statement on what to do. I take my orders from the Court. I ask that Mr. Sikma be seated until I finish asking the question. There's no one to be prejudiced even if I ask an improper question, which I have no intention of doing.
THE COURT: Proceed.
Q (By Mr. Taikeff) My question was one of FBI practice so that we could evaluate Exhibit 208. If before you interviewed an incarcerated person who had counsel, and if you called his lawyer to ask permission to have an interview with him, is that the kind of thing in your opinion that should be put into a 302 concerning that interview?
A Well, you mean if we contacted the attorney should it be noted in the --
Q Yes.
A Well, I would think so, yes.
Q Now, if I tell you there's no such entry there do you think that raises a high probability that no such call was made, assuming he had an attorney?
A Well, that's merely an assumption.
MR. SIKMA: Your Honor, I object to this as speculative and basically would also object to it as not proper as far as {4077} these proceedings are concerned at this time. It's, it appears to be matters of speculation which are little or no value.
THE COURT: Overruled.
A Well, like I was saying it would have to be an assumption on my part.
Q (By Mr. Taikeff) Now, did you hear what Mr. High Bull said in the course of the interview?
A I was attentive, yes, sir.
Q I beg your pardon?
A I was attentive, sir.
Q That doesn't answer my question. Did you hear what he said?
A Well, I'd have to answer that yes, sir.
Q Did he say that he asked Jimmy Eagle how it happened and that Eagle related the following information to him referring to the shooting deaths of the agents on June 26th, 1975?
A You mean did he say those specific words, or words to that effect?
Q Yes.
A Words to that effect.
Q Either one.
A I believe that's true.
Q Now, did High Bull say in words or substance that Eagle advised him that the FBI guys came in two cars and went down by the creek in Oglala, South Dakota?
{4078}
A I think basically that's true, yes, sir.
Q Did High Bull also say that Eagle said that they opened up on them down by the creek and the FBI guys started shooting back?
A Yes.
Q And did High Bull tell you that Eagle told him that they hit one of the FBI guys and he went down?
A Yes, sir.
Q Did High Bull then tell you that the next thing he could recall was that Eagle told him that they were up real close to the second FBI guy that was standing outside his car? If you have some trouble with that I'll be glad to show the 302.
A Well, basically to answer your question that was the conversation along those lines, yes.
Q Did High Bull tell you that Eagle said that they got up real close to the second FBI guy and they shot him?
A I believe that's basically true, yes, sir.
Q Did you at any time in the course of that interview, either you or Agent Hughes, ask High Bull if he knows who they refer to in the story he was relating?
A Well, I believe that the question came up so we could specifically determine if it was an I statement or they or we. In other words, was Jimmy Eagle participating or was he saying that he in fact was the individual doing those things.
{4079}
Q And what answer did you get from Mr. High Bull?
A Basically throughout the whole interview, as I recall it, High Bull stated that it was a, it was a story that he was hearing from Jimmy Eagle while he was in the jail and that's what he was telling us. He was conveying it to us as to basically what he was saying.
Q Now I want to make some inquiry of your state of mind as you sat there in the course of this interview. Do you understand what I'm talking about?
A My state of mind.
Q Okay.
Talking about what you understood at that time. I'm not asking whether you were right or wrong.
A Okay.
Q Okay. Do you understand that?
A Yeah.
Q You were sitting there and a person by the name of High Bull was telling you and Agent Hughes what he, High Bull, had heard Jimmy Eagle say, correct?
A That's correct.
Q And it appeared to you, did it not, that Jimmy Eagle when he spoke used the plural designation such as the word "they"?
A That's correct.
Q Did you at any time in the course of that interview ask Mr. High Bull if there was any revelation by Eagle as to {4080} who "they" referred to when Eagle was talking?
A I did not.
Q Did Mr. Hughes?
A I don't recall. It would only be an assumption that he tried to clarify those points.
Q Based on your experience, do you think that if such an inquiry were made that would be reflected in the 302?
A Well, that would depend on the individual who's doing the 302.
Q I'm talking about the ordinary requirement that we have been over a few times concerning what a 302 is supposed to accomplish, what's supposed to be in it, et cetera.
A The 302s many times are interpretations or, you know, you have to somehow with your own intelligence, your own vocabulary place those on the 302 to the best of your knowledge.
Q Now let me read to you the third full paragraph on page 2 of Defendant's Exhibit 208. "Eagle advised they escaped by going down the creek and going around behind Oglala, South Dakota, and Eagle said he later turned himself in at Rapid City, South Dakota." Now that is a summary of what Mr. High Bull said Jimmy Eagle said, am I correct?
A Yes, sir.
Q When you were sitting there listening to that, was there any doubt in your mind that at least as far as what Eagle was supposedly saying when he spoke that Eagle was talking about {4081} himself escaping at the time in question?
MR. TAIKEFF: I'm asking for his present state of mind during the interview.
MR. SIKMA: Your Honor, I would say that that's not the best evidence. There is a signed statement that, which is Exhibit 209 which is the best evidence and this witness has testified to some extent he doesn't recall the specific language, at least of the 302, nor of the other statement and I would contend that the best evidence would be government, or Defendant's Exhibit 209.
THE COURT: The Court is really not concerned at this point with the best evidence. The Court is concerned with whatever offer of proof Counsel has to present.
MR. TAIKEFF: Your Honor, to satisfy Mr. Sikma, he is apparently referring to the first paragraph on page 3 of Defendant's Exhibit 209. That says quote, this is signed by Mr. High Bull, quote "I was then told by Jimmy Eagle that they escaped by going down to the creek and going around behind Oglala, South Dakota. Jimmy Eagle then told me that he later turned himself in at Rapid City, South Dakota." I think the two paragraphs are virtually identical except one is written in third person and the other is written in the first person from the point of view of High Bull.
I'll proceed on the basis of the second version, Your Honor.
{4082}
MR. SIKMA: Your Honor, my point is that at any rate, this manner, this witness' testimony for setting out proof here for this record, offer of proof, would be admissible in any event and that's why my contention is that it's something that need not be gone into at this point.
THE COURT: Well, the Court is concerned with what Counsel has on an offer of proof and I'm going to hear a reasonable, I'm going to listen for a reasonable length of time.
Q (By Mr. Taikeff) I think there is a question outstanding for you, sir.
In hearing what went on at the interview on July 26th or in reference to the signing of the statement on August 1, 1975, was it your understanding that Jimmy Eagle had told High Bull that he and at least one other had escaped that day by following a certain route?
A Yes, sir.
Q Is it fair then to say that it was your impression -- withdrawn.
Is it fair then to say that it was not your impression that High Bull was reporting to you events that Jimmy Eagle was talking about that did not include the participation of Jimmy Eagle?
A I had no way to determine that. Basically we were listening to what he had to say about conversations that were taking place.
{4083}
Q I'm not asking you about the underlying truth or falsity of what you are being told, I'm only asking you what your sense impressions were as you listened to High Bull speak and I ask you about the use of the word "they" in connection with Jimmy Eagle saying that they escaped by going down to the creek, et cetera, and that Jimmy Eagle then later turned himself in. Was it not your impression that someone was telling you about what Jimmy Eagle said he and another or others had done?
A Yes. That's true.
Q Did High Bull tell you that Eagle said that the second FBI guy who was shot real close was sprayed across the chest at close range?
A I believe that's basically true, yes.
Q Did High Bull tell you that Eagle told him that a bullet came through one of the houses and hit Joe Stuntz and that is how Joe Stuntz got killed?
A I believe so; yes.
Q Did High Bull tell you that with reference to all of the things that he had related up to that point and I'm not suggesting that I've questioned you about every single one, that Jimmy Eagle had said these things several times and was excited while talking about it and seemed to enjoy talking about it?
A I think that's basically true; yes.
Q Now when this interview was over -- withdrawn.
Before the interview was over, did you have any {4084} further conversation with High Bull?
A I don't recall, you know, what conversation took place. I do recall that I said very little if anything that day.
Q How about Agent Hughes, did he say anything after High Bull related what he supposedly heard Jimmy Eagle say?
A That's very possible; yes, sir.
Q Do you recall the substance of that?
A I'm afraid I don't.
Q Do you recall anything about it at all?
A Not to my knowledge.
Q Once again referring to your own state of mind, did you believe that High Bull was telling you the truth?
A Well --
Q About what he had heard or what had been said?
A I don't think I could say what he believed if in fact you have nothing to base anything against that he's not telling you the truth. We were there listening to what he had to say and I would have to say, I mean, coming back to your question, that I had no reason to doubt him.
Q By the time the interview was over, would you say that whatever the nature of the cordiality was or wasn't remained the same; in other words, nothing had changed between you two and High Bull, no argument broke out or anything?
A No, absolutely not.
Q So however things were at the beginning, they were {4085} essentially the same at the end?
A Yes.
Q Did you ask him to take any further action on your behalf?
A I don't recall that, sir.
Q Did you tell him it was very important to find out who else was included within the word "they" and that he should go out and find out one way or another for you?
A I did not.
Q Did Agent Hughes?
A And I can't state whether he did or not.
Q Based on your own practices, your own techniques, if you were the only interviewer, would you at that time have asked the guy to go back and see if he could find out who the other people are or were?
A Well, I would be concerned as to finding out if that was possible, but whether it was probable remains to be seen, or would have remained to be seen.
Q Now is it not a fact that that same day you and Agent Hughes interviewed Melvin White Wing?
A That same day?
Q Yes.
A Possible.
Q Let me ask you a question concerning FBI procedure. If on a 302 after the typewritten file number it says " -sub capital {4086} A" and below that the number "857," for example, what's the significance of that?
A Well, sub A was the particular file that we refer to our 302s on, in connection --
Q Someway you refer to a particular file?
A Was a particular file that referred to all the files we were doing in a particular case. I mean, you know, 302s.
Q Well, were all 302s designated sub A?
A Well, to answer that unequivocally I can't. As I recall, 302s were sub A.
Q And the "857" or some number like it, what does that designate: page number in the sequence?
A Well, it would be numbers. I'd have to look at it. It could be how they come into the file.
Q Now as to the interview date, if there is a -1 after the date written in hand, what does that mean?
A After the interview date -1?
Q Yes. Typed 7 slash 26 slash 75, then there's handwritten dash one. What does that mean?
A I don't know.
Q How about dash two, does that have any meaning?
A (No response.)
Q Let me show you Defendant's Exhibit 210 which concerns White Wing where I think you'll find the dash one.
A Okay.
{4087}
Q And 208 which has the dash two. Can you tell what that means?
A I have no idea what that means.
Q Can you tell which of these two individuals were interviewed first, and I'm speaking about High Bull and White Wing?
A No, I don't, sir.
Q Can you tell us whether they were separately brought to the FBI office?
A I can't even recall that, if they were in fact both brought to the office that day.
Q If it says so in the first paragraph of the report, is that a sufficient indication for you to believe that they were?
A Yes.
Q Now what charges were pending against White Wing?
A Well, as I recall, he was in Pennington County Jail on misdemeanor, a local charge. We'll say it that way, whether it was a misdemeanor or not I don't know.
Q Already convicted or awaiting trial?
A I'm not quite sure, sir.
Q Do you recall any attempt or any suggestion at reaching his Counsel to ask permission to speak with him if he had counsel?
A I'm not sure if he had Counsel or we contacted him. I'd have to refresh my memory on it.
{4088}
Q If I told you that Defendant's Exhibit 210 which is the 302 of the interview said nothing about a contact with any Counsel, would you be satisfied that no such contact was made?
A If possible that would have been the results; yes.
Q White Wing reported things which he claimed Jimmy Eagle had said, is that correct?
A That's correct.
Q And he reported that these things had occurred on a different day than High Bull had reported it, isn't that true?
A That's possible. I'd have to again refresh my memory.
Q If I told you that the High Bull 302 says that the event occurred on a Thursday evening and that the White Wing 302 says it occurred either a Saturday or a Sunday, would that refresh your recollection any?
A It would basically have to be true.
{4089}
Q Then White Wing tell you that Eagle said that one of the FBI Agents went to the trunk of his automobile, opened the trunk and this agent got shot and went down?
A I think he did say that, yes.
Q Did White Wing tell you that Eagle advised that they then shot this second FBI Agent, and then Eagle stated everybody took turns shooting the two FBI Agents?
A I believe so, yes.
Q Did White Wing tell you that Eagle had told him there was a Joann and a Leonard living there?
A I believe he did, yes.
Q And did White Wing say that this information about Joann and Leonard had been stated by Eagle while Eagle was talking about the shooting of the FBI Agents?
A It is basically true.
Q Did White Wing tell you that Eagle said that they escaped to a place behind the dam where cars were supposed to pick them up?
A I believe he did, yes.
Q And did he tell you that Eagle said that the agents were shot eight times?
A Eight times?
Q Yes.
A I don't recall that.
Q All right. Let me show you Page 1 of Defendant's Exhibit {4090} 210, last sentence in the next to the last paragraph.
A (Examining) Um-hum.
Q Do you recall whether White Wing said that Eagle said that?
A I don't recall that, but that would have to be basically true if it is in there, yes.
Q When you say "basically true", you mean basically true that White Wing said that Eagle said those things?
A Yes, sir, that's what I am referring to. Yes, sir.
Q Now, did White Wing tell you that Eagle admitted to him that he, Eagle, set up the warrant in order to set up FBI Agents, and Eagle further stated that they set them up?
A I think that was basically the context of the interview.
Q Now, were there any further questions put to Mr. White Wing as to what other information he might have specifically concerning who they, quote, unquote, might be?
A Well, I think basically the whole interview was to determine what he had to say as to what he heard, and you know, we were recording what he said.
Now, whether that's the specific question, I can't recall if I asked that specific question. I am assuming we are trying to cover those bases.
Q On August 3, 1975, in Rapid City, South Dakota, did Melvin White Wing sign a statement which we have marked Defendant's Exhibit 211, which essentially summarized the information he had {4091} given in the interview?
A (Examining).
Q And I think in fairness I should give you the 302 so that you could make a quick check to see whether in fact there is a strong correlation.
A (Examining).
Q I am not asking you whether every single word is the same. I am talking about the points made by High Bull concerning Eagle's revelation of facts of June 26th, is it fair to say that the statement of August 3rd pretty much tracks the factual content revealed in the 302?
A I would say "yes" to that.
Q And would you say that that is essentially true for Defendant's Exhibits 208 and 209, one being the 302, the other being the statement that was signed by the informant?
A (Examining) I mean, you know, basically the story is there, yes.
Q Now I have asked you certain questions concerning events of July 26, 1975, before, during or at the end of the interview. I now put similar questions to you, but I am talking about the period between the end of the interview and the time that formal statements were signed. In the case of White Wing that would be August 3, in the case of High Bull that would be August 1. Do you understand the period of time I am focusing my attention on?
{4092}
A July to August?
Q Well, specifically July 26 to August 1 --
A (Interrupting) O.k.
Q (Continuing) -- in one case, that's the High Bull case, and July 26 to August 3 in the White Wing incident.
A O.k.
Q Were there any further interviews of either of those two people during the respective periods that have been stated for the record?
A I believe it is possible on White Wing. I am not positive -- I mean, I did talk to White Wing a couple of times other than those two times you have mentioned, but High Bull I don't believe so. I stand to be corrected, of course.
Q Is it fair to say that there were no interviews in which any further information concerning the events of June 26th, or what Jimmy Eagle might be saying about those things were obtained?
A Well, it is possible on the White Wing. There could be another one, but whether it says anything or not --
Q I am showing you now a 302, based on an interview of August 3, 1975, and transcribed August 6, 1975. Is that what you are referring to?
A (Examining) Yeah, that's one of them, yes.
Q Now, that interview on August 3, 1975, was relating to facts that were heard coming out of the mouth of James Eagle, but which White Wing, according to his own statement, did not {4093} know whether they pertained to the shooting deaths, the conversations pertained to the shooting deaths of Williams and Coler?
A Yeah, that's true.
Q But that he thought, since reference was made to the word "gun", that it might be important and wanted to call it to your attention?
A Yes, that's true.
Q O.k. Now, was there any effort -- and again I am focusing attention on July 26 to August 3 in the case of White Wing, and July 26 to August 1 in the case of High Bull -- was there any effort to get either or both of these individuals to see if they could find out who the "they" referred to?
A Not by me.
Q Do you know of any such effort by the Federal Bureau of Investigation?
A Well, I mean, to expand that "they", of course, we were trying to determine who was all involved in the shootings, yes.
Q I understand that. I am focusing attention on the efforts by the agents in Rapid City on these two possible sources of some concrete information, that you were doing in other directions, trying to solve this case?
A Not to my knowledge. It is possible, I mean. I can't say unequivocally.
Q Putting aside the question of it being within the realm of possibility, do you know of anything along those lines?
{4094}
A Boy, not that I can remember.
Q On or after August 3rd -- withdrawn.
When you went to see Mr. White Wing on August 3rd to get him to sign a more formal version of what he had originally told you, or to put it in other terms, to get him to sign a statement -- in his case it is Defendant's Exhibit 211 -- did he then voluntarily give you the information which is reflected in that 302 -- which I better have marked for identification so there is not any confusion in the record, I am talking about the 302 showing an interview of August 3, '75, and a transcription date of August 6, '75, and that is now Defendant's Exhibit 213 -- (handing) did he voluntarily give you that extra piece of information that he overheard a certain conversation, didn't know whether it applied to June 26th, but because the word "gun" was involved, he thought you ought to know about it?
A As I recall, again I went with -- (examining) Dean Hughes regarding -- I think it was a request by him to see us. That's how the interview began. That's the reason we went.
Q When was that statement typed that he signed?
A Oh, it says 8-6-75.
Q I am not talking about the 302 which you are holding which is Defendant's Exhibit 213. I am talking about the typewritten statement which he signed on August 3rd, which confirmed what he had previously told you on July 26.
A You mean the date was July 26, '75, is that what you are {4095} inquiring about?
Q What I am trying to find out is, when was the typing done of the statement which bears the date, August 3, which White Wing signed, not that document, I am talking about Defendant's Exhibit 211 (handing)?
A (Examining) When was the typing done?
Q Yes.
A I believe it was done the day before. They are always instructed to obtain them.
Q And when you went there with that statement, which is now 211 for identification, Mr. White Wing gave you some information voluntarily, did he not, and that's reflected in 213?
A Um-hum, that's the one.
Q Now, as of the time Mr. White Wing gave you that information, is it fair to say that it was your impression that he was willing to be helpful to you?
A Well, he was willing to be helpful in any way with any information that would assist us in the investigation of the shooting deaths of Coler and Williams.
Q And you knew that or believed that at that particular time, is that right?
A Well, he was very cooperative.
Q Now, had there been any discussions with him about helping him in any particular way?
A No, sir.
{4096}
Q And that includes cases, money, jail privileges or any of the things which I mentioned to you before?
A As far as I am concerned, no, sir.
Q Well, when it was apparent to you, at least by August 3rd, that he was quite cooperative and would tell you things that might concern June 26th --
A (Interrupting) Um-hum.
Q (Continuing) -- do not make any request of him to go back and find out who "they" referred to?
A I did not, no.
Q Was that because you didn't believe him?
A No, because as I stated before, Hughes was in charge of the interviews. I had no reason to doubt him, and the decision to do anything additional as to those interviews would be his decision.
Q Again I ask you for your own personal state of mind at the time. Did you not think that this information was very important to your investigation -- and I am talking about the information you got from White Wing, High Bull and anybody else who was in the Pennington County jail who told you he overheard conversations -- didn't you think it was important stuff?
A Of course, we did.
Q And didn't you think it was worth finding out more about that inside the jail, if that were possible?
A Well, the thought could have occurred to me; but these are {4097} statements that we were receiving from these people based on what they voluntarily wanted to tell us.
Q But once they were there voluntarily telling you these things, was no effort made to direct their future attention towards getting some more information?
A Well, I think what you are getting at is, if they heard anything else, yes, let us know. That's good investigative technique. Now, as far as directing, no, sir.
Q I said directing their attention, I meant suggesting to them, "If you hear anything else in the future, we want to know about it"?
A Well, absolutely.
Q And how about saying, "Look, this guy was talking about `they', we would like to know who `they' is"?
A No, it wasn't directed that way. It would have been in the general sense, "Appreciate your cooperation, if you hear anything additional that would help us in this investigation, we would appreciate your cooperation." Now, words to that effect.
Q Now, when you checked back with a person who has given you information, whether you get information or not, isn't it true that you write a 302 of the further contact?
A You mean as far as the investigation?
Q Yeah, I will give you a simply hypothetical.
Suppose you interviewed me on a Monday, I gave you whatever {4098} information I had and I said, "Come back on Friday, I will give you the name of that person I can't think of, you know"; if you came back to see me on Friday and I said, "I am waiting for it to arrive in the mail, check with me again on Monday," wouldn't you write up a short one paragraph 302 or at least a one paragraph 302 recording the fact you had seen me on Friday, I still didn't have the information, I told you to come back on Monday?
A It is possible. If it is relative to the case you are working on, yes.
Q Well, do you know of any further attempt to contact either of those two individuals to see what more they had learned?
A Not by me.
Q Do you know of the existence of any 302 which reflects a further attempt to find out what else they had learned?
A Well, I believe I had talked to White Wing an additional time. I am not positive on that, but I talked to him two or three times, possibly four times.
Now, whether there was a reiteration or like when the contact was made, "Is there any additional information that you would know, give to us, that would assist us, that would help us in this investigation, we would be appreciative," and that would be the basic context of any contact of that nature.
Q Now then, there was a person by the name of Marvin Bragg who might also have an alias. Do you know the alias he used?
{4099}
A Yes, I do.
Q What is that?
A Ricky Walker.
Q And Marvin Bragg gave you a statement in his own handwriting which he signed on April 23, 1976, isn't that correct?
A Partially correct.
Q Beg your pardon?
A Partially correct, sir.
Q Tell me what in my question was incorrect.
A Well, first of all, he didn't do it in his handwriting.
Q Whose handwriting was it?
A Depends on which one you have, sir.
Q Should I have more than one?
A Well, on that particular date?
Q On any date.
A I don't know if you should have them, but in answer to your question, the statements that I took, the signed statements that I took concerning him were not done in his handwriting.
Q I think I understand what you are getting at. I would like to attempt to clarify the record.
You are saying that Marvin Bragg gave you several statements?
A That's correct.
Q Altogether, one of them concerning conversations he either had with or overheard with Butler, another one concerning the same general subject matter with Robideau and another one {4100} concerning Eagle?
A That's correct.
Q And so when you were referring to the plural, you were referring to at least those situations?
A That's correct, sir.
Q O.k., but now I want to make sure as to the number of such statements taken from him concerning Eagle, was there one such statement?
A To the best of my knowledge there was.
Q Now, I show you as of this moment unmarked documents, both dated May 5, 1976 -- that refers to the date of transcription -- both referring to statements of April 23, '76, I am putting those before you for the moment.
{4101}
Q Now, I am showing you Defendant's Exhibit 212 which is the typed written version, and ask you whether or not that typewritten version, Defendant's 212 is in fact the typed version of this three page handwritten document? I'll have all of these marked in a moment.
A I'll have to go through it and see if it's the same.
Q Okay. 212 is a typewritten version of this handwritten statement?
A Appears to be.
Q All right. That latter piece of paper will now be marked Defendant's Exhibit 216.
In whose handwriting is 216, if you know?
A 216 is mine.
Q And that was signed by Marvin Bragg?
A I believe it is Marvin Bragg.
Q Okay. Now, how did you get to know Marvin Bragg?
A Well, I was summoned to the Pennington County Jail concerning a jailbreak whereby --
Q When did that happen?
A When?
Q Approximate date.
A Well, it's going to be right around that same time because that's the only contact, that's how the contact started.
Q That when then be in the month of April, 1976?
A Could be a month before, a couple weeks, somewhere around {4102} there.
Q Okay. But all of Mr. Bragg's statements, whether handwritten, typewritten or whether both handwritten and typewritten, appear to be dated April 23, 1976. So somewhere in the period immediately preceding that date you started investigating a possible jailbreak, and that's how you came in touch with Mr. Bragg, is that a fair, general statement?
A That's a fair, general statement, sir.
Q All right. Now, Mr. Bragg told you something about Jimmy Eagle saying something way back in July of 1975; isn't that correct?
A I believe that's true.
Q How did it come about that you got to talking with Mr. Bragg about what he heard or supposedly heard Jimmy Eagle say in July of 1975 when you questioned him in April of 1976?
A Well, I was informed that information by two individuals also with the FBI.
Q Who were those people?
A Be Special Agent William Wood and David F. Price.
Q Now, did any conversation occur between you and Mr. Bragg concerning possible benefits of any kind, direct or indirect to Mr. Bragg, for any information he might give you?
A Not by me, sir.
Q By anybody else in your presence?
A Not to my knowledge and not in my presence.
{4103}
Q So as far as you know Mr. Bragg did whatever he did without any inducement of any promises of any kind from you or the federal government?
A To the best of my knowledge.
Q As far as you know?
A As far as I know, that's correct.
Q And in the course of taking a number of statements from him on April 23, 1976 did he tell you that on or about the 21st, 22nd and 23rd days of July, 1975 he had some conversation with Jimmy Eagle?
A I believe he did, yes.
Q And did he further tell you, but without specifically identifying any exact date, that Eagle admitted that he, Eagle, was down there at the time of the shooting?
A I believe that's true, yes.
Q And did Marvin Bragg also tell you that Eagle admitted to him that he, Eagle, was in on the ambush?
A That would be true, yes.
Q And did Marvin Bragg tell you that Eagle admitted to him that he, Eagle, did some of the shooting at the federal agents?
A That's correct, sir.
Q Now, by April 23, 1976 when you took that statement a trial was close to beginning, was it not?
A I believe it was.
Q And as of that time what understanding if any did you have {4104} as to who might be tried for the murder, imminently tried I should have asked you, imminently tried?
A ConcernIng that particular trial or other trials?
Q Well, there were four people indicted for the murders of the FBI agents, am I correct?
A I believe that's true.
MR. HULTMAN: Well, I'll indicate on the record, Counsel, because I'm the only one that knows that at that particular time --
MR. TAIKEFF: I'm only interested in his state of mind. I know the facts I hope. I'm just concerned with that person's state of mind. But I thank Mr. Hultman for the offer.
Q (By Mr. Taikeff) As of April 23, 1976 what was your understanding as to who was about to go to trial?
A Well, as I recall there was a trial coming up. Now, whether it was that date, but concerning the trials, I believe it was Darelle Dean Butler, Robert Eugene Robideau.
Q And as of April 23rd do you recall what information you had concerning when their trial was to begin?
A Well, I can't say specifically what date that would have been.
THE COURT: Court is in recess until 3:15.
(Recess taken.)
MR. TAIKEFF: Your Honor, while the witness is coming {4105} in I would like to offer on the hearing the one page 302 which has been marked Defendant's Exhibit 213.
MR. SIKMA: No objection.
THE COURT: Very well.
MR. SIKMA: For the purpose of the hearing offer of proof.
THE COURT: The exhibit will be received on the offer.
MR. TAIKEFF: Your Honor, I believe that the exhibits which have been introduced on the offer are Defendant's Exhibit 207 through 213 inclusive; and from my conversation with Mr. Hultman I understand that the Government will agree with me that at this time it appears that those are the only 302's or documents relating to statements of the category of informants we have been looking in this particular offer of proof as far as we can tell at this time.
MR. SIKMA: Yes, of Jimmy Eagle.
MR. TAIKEFF: Yes.
MR. SIKMA: I would say that is correct.
THE COURT: I might also advise that we will probably take another recess before the afternoon is over and then continue on until 6:00 o'clock tonight.
MR. TAIKEFF: May I at this particular time in light of Your Honor's statement indicate that there are two incarcerated potential witnesses who I understand are either here already or will be here momentarily that we would be {4106} making application to the Court after we finish with this witness to have an opportunity to speak with them briefly? Before we proceed would Your Honor's contemplated recess allow sufficient time for that?
THE COURT: Well, I don't know how much time you are talking about.
MR. TAIKEFF: I'll probably need a half an hour in doing that.
THE COURT: Are you talking about a half hour at one time, or are you talking about a half hour divided up into --
MR. TAIKEFF: Whichever is convenient to the Court. I assume Your Honor will recess of what Your Honor has said, and I just wanted to inform the Court that I need some time to determine whether I'll have additional proof to offer in this offer of proof.
THE COURT: I will bear your request in mind.
MR. TAIKEFF: Thank you, Your Honor.
May I resume the inquiry?
THE COURT: You may resume.
Q (By Mr. Taikeff) I think, sir, that we had gotten to the point where I was asking you questions about Marvin Bragg.
A That's correct.
Q And I was making some inquiry about trial date. I want to ask you some specific information about that. In connection with {4107} the jailbreak or attempted jailbreak, is it accurate to say as far as you know that the sheriff's department uncovered this alleged attempt and took action on it on or about Friday, April 16, 1976?
A I believe that's correct.
Q Would you say likewise that Monday, April 19, 1976 is the day that the FBI went into the jail to pursue its investigation of the attempted escape?
A Well, it would be the same day that we received the information. I believe that was the 16th now that you mentioned it.
Q I see.
MR. TAIKEFF: Now, I understand that the Government will stipulate for the purposes of this offer of proof that the originally set trial date for Robideau and Butler, which trial was to take place before Judge Boge in Rapid City, was April 19, 1976.
MR. SIKMA: We would stipulate to that. However, I believe there had been an earlier trial date set and the case was continued until April 19th.
MR. TAIKEFF: Well, what I'm concerned with, the trial date on or about April the 19th was a trial date.
MR. SIKMA: Yes. We had a date certain set up at that time.
MR. HULTMAN: And if the record was complete then on {4108} 19, 18, 17, 16 which was the Friday before the Monday, then it was postponed again.
MR. TAIKEFF: Yes, Your Honor.
MR. HULTMAN: On the 16th it was postponed again.
MR. TAIKEFF: I think that counsel for both sides can agree that on or about the 15th of April --
MR. HULTMAN: 15th or 16th.
MR. TAIKEFF: -- Mr. Lowe and Mr. Ellison went to the Circuit Court concerning both the change of venue and a change of presiding judge. The net result was that sometime prior to 9:00 o'clock on the morning of April 19th, what has been described as an administrative change of judge and an administrative change of venue occurred, thereby taking the case out of Rapid City and simultaneously assigning the case to Judge McManus. And the trial date therefore was reset for sometime early in May on that initial administrative change.
I note that Mr. Hultman is nodding in the affirmative, so I trust that the record will reflect that counsel for both sides agree on those facts.
THE COURT: Very well.
Q (By Mr. Taikeff) Now, sir, you were aware, were you not, that a trial was imminent at or about the time you took the statement of Marvin Bragg?
A Imminent?
Q Yes. It was about to take place, very soon, there was going {4109} to be a trial before a jury on the part of the Government and at least two defendants, Robideau and Butler?
A Well, I was aware that there were a trial coming up on those two particular individuals.
Now, whether it was before or after or, you know, in line with that particular interview, I can't say. In other words, you know, was it, did I interview him before the trial or did I interview him after the day. I can't say specifically.
Q Is it fair to say that at least as far as your state of mind was concerned as the events were occurring that you had some consciousness about when the trial was coming up because you were a prospective witness amongst other reasons?
A I was aware that there was a trial coming up.
Q Okay. Now, you were also aware, were you not, throughout the months of April, May and June that Jimmy Eagle was still named in the indictment and the indictment was still viable as against him?
A I believe he was still under indictment.
Q Now, you may not have been in the courtroom, but a stipulation was entered into that perhaps you should know, and that is that all of the papers which we have marked, that's Defendant's Exhibits 207 through 213 have been admitted in connection with this special hearing.
Now, I'm going to take all of those papers and place there before you in such a way as to make things easiest. I {4110} put all the Marvin Bragg stuff together. Put the Melvin White Wing stuff together. Put the Marion High Bull things together and I just show you that 207 concerns Gregory Dewey Clifford which you had nothing to do with, right?
A Not to my knowledge.
Q Now that it has been agreed between counsel for both sides is all of the paperwork in connection with the Jimmy Eagle admissions or confessions, depending on how you look at them, other than the complaint which was filed against him in federal court --
A Sir --
Q Now, I want to explain for the record, because this is an offer of proof, if you knew that there wasn't going to be a trial very soon and you knew the indictment included Jimmy Eagle and that therefore he was as likely as any a defendant to be put to trial, why didn't you do any further investigation through any of the people whom you had contacted and who appeared to be cooperative and willing to tell you things without any inducements of any kind?
{4111}
A Well, the first thing off the top of my head is not to participate or have these particular interviews. In other words, it was not my province to go out and make the decision, it was doing additional investigation. Dean Hughes was the primary agent as far as doing these interviews. I initially got into this whole thing right here because of Dean Hughes, him asking me to come with him and I believe that started with the Marion High Bull situation and that's what, you know, these other things. Now I believe also the Marvin Bragg situation was brought about because of an attempted escape.
Q Now you recognized, did you not, in connection with what Mr. Bragg said Mr. Eagle said to him that apparently, looking at the statement, Jimmy Eagle considered Marvin Bragg someone he could tell some rather important, sensitive things to because he basically confessed to his participation in shooting the agents, right?
A Basically he did.
MR. SIKMA: Your Honor, I would object to that as a misstatement, at least of the statement there in front of him as far as characterization of participation in the shooting and I refer to --
MR. TAIKEFF: I'd like to read those three sentences into the record for Your Honor's consideration. It says in Marvin Bragg's statement as to what Jimmy Eagle told him, quote "Eagle admitted to me that he was down there at the time {4112} of the shooting. Eagle also admitted to me that he was in on the ambush but he really didn't know what was happening. Eagle admitted to me of doing some shooting at the federal agents, but he did not say that he killed them" unquote.
Q (By Mr. Taikeff) Now did you not recognize when you took the statement from Marvin Bragg which you wrote in your own hand that Eagle's supposed statement to Bragg that he was in on the ambush and that he did some of the shooting at the federal agents constituted a very important and very serious admission on the part of Defendant Jimmy Eagle if in fact he had made those statements?
A You're asking me whether they were significant or important, is that what you're saying?
Q Viewed from your perspective as a special agent of the FBI.
A Well, of course they were.
Q And did you not recognize that if a jury believed that Jimmy Eagle said those things there would be a very, very strong likelihood that a jury would convict him on those statements alone?
A Well, that would strictly be an opinion.
Q Yes. I'm talking about your professional opinion.
A I think it would be supportive.
Q I think it would be significant if not controlling. Put aside the possibility it would be controlling. Do you think it {4113} would be a significant piece of evidence if the jury believed he was in on the ambush and did some of the shooting at the agents?
A Outside of the law I would. It's relevant information.
Q Isn't it virtually a confession of guilt to you in your mind?
A It's hearsay.
Q No. I said if he actually said those things. If Eagle actually said those things.
A Uh-huh.
Q Wouldn't that be a virtual confession to you?
A If he said them to me it would; yes.
Q Okay.
Now did you take any steps at all to see to it if possible that Mr. Bragg had some further contact with Jimmy Eagle within the prison system so maybe he could get some more information about this?
A Well, the only thing I can say to that is they were separated so that couldn't be done.
Q I didn't ask you for the final conclusion, I asked whether you made any inquiries, made any attempts or took any steps.
A No.
Q To try to get these two people together again so that some further --
A No.
{4114}
Q -- information might be obtained about what happened, who was there, et cetera.
A Not by me it wasn't; no.
Q And you did interview Mr. Bragg yourself, didn't you?
A Well, I was with Dean Hughes; yes.
Q But you wrote his statement in your hand, didn't you?
A I wrote one of them; yes.
Q The one concerning Jimmy Eagle?
A That's correct.
Q Would you identify for us Defendant's Exhibit 130. Before you do that let me inquire of the Court.
MR. TAIKEFF: Your Honor, may I assume that the court file contains a copy of the Complaint which was filed against James Theodore Eagle for purposes of rounding out the record?
THE COURT: I have no knowledge.
The clerk tells me the only thing we have here is the indictment.
MR. TAIKEFF: I see. In that case, Your Honor, I would ask this witness whether he will concern the following: the four page document, Defendant's Exhibit 130, is a photostatic copy of the complaint which was filed against James Theodore Eagle, also known as Jimmy Eagle, with the following qualification: that on pages 2 and 3 the underscoring which appears was not in the original complaint but apparently was added subsequently and therefore appears in this photostated document.
{4115}
A You're asking me to do something here that I had nothing to do with, the Complaint.
Q You recognize that on my foot there is a shoe?
A Yes.
Q You didn't make that shoe, did you?
A No.
Q Then take a look at that piece of paper and tell me whether that is the, if you know, complaint which was filed against Jimmy Eagle.
MR. SIKMA: Your Honor, I would suggest this is --
THE COURT: The question is do you know.
THE WITNESS: I don't know anything about this Complaint, Your Honor.
THE COURT: There's your answer.
MR. TAIKEFF: Will the government stipulate that that was the Complaint and I'll show it to government Counsel.
MR. SIKMA: It appears to be complete with the exception that it does not have the date, the docket number or case number.
MR. TAIKEFF: Well, if at any time, Your Honor, the government would want to supplement the record with respect to information, I'd be happy to consent but I would point out that the preliminary hearing minutes, so this is, the magistrate's docket number was 75-112-M, capital M as in Michael.
MR. SIKMA: Okay.
{4116}
MR. TAIKEFF: Upon the concession from the government I would offer for the purposes of the offer of proof Defendant's Exhibit 130.
MR. SIKMA: We have no objection for that.
THE COURT: 130 is received in the offer.
MR. TAIKEFF: There are no further questions by the defense of this witness on the offer, Your Honor.
MR. SIKMA: We have no cross on this witness on this matter.
THE COURT: You may step down.
MR. TAIKEFF: May I note, to avoid any possible confusion, that the witness will be called to testify as a defense witness on two subjects and therefore should appear tomorrow morning or make himself available to be called tomorrow morning that do not relate to the Jimmy Eagle episode, of course.
THE COURT: You're excused for the day.
MR. TAIKEFF: Your Honor, the defense calls Special Agent William B. Wood on the offer.
MR. SIKMA: He won't be here until tomorrow.
MR. HULTMAN: We didn't find out until this morning.
MR. TAIKEFF: The government is quite correct. I would ask Your Honor's permission to call him in that regard any time before the proceedings are concluded that's convenient for the Court to do so.
{4117}
MR. SIKMA: Your Honor, since this is an offer of proof, there is an alternative means of making an offer of proof and that is by having Counsel state what they intend to prove by the calling of these witnesses and we would suggest that in those instances where a witness is not available such as Special Agent Wood, under these circumstances that Counsel make his offer of proof.
MR. TAIKEFF: Your Honor, I would do part of that in an effort to conserve time of the jury but I have a certain problem. First of all, Wood was to be called in connection with another aspect of the case so his presence indeed is required not withstanding the offer of proof.
Secondly, as illustrated by the testimony taken from Agent Coward, there are aspects of this which concern, to use a catch phrase, the state of mind of the interviewing agent that cannot be obtained from any of the documents and so although I am certain that Agent Wood would testify to an interview with Gregory Dewey Clifford and that interview took place on or about July 27, 1975; and
that he then and there voluntarily signed a statement which is Defendant's Exhibit 207 and he would undoubtedly confirm that Gregory Dewey Clifford told him each and every essential fact which is recorded in the statement, I'm afraid, never having met Agent Wood, I could not give Your Honor of proof as to what he would say about how he got to know Clifford, {4118} how these events came about or what his state of mind was with respect to any aspect of it.
I believe that it is appropriate for the defense at this time to make the record as complete as possible because if there is an appeal after a conviction, it would be the job of appellate counsel to argue forcefully as to what the defense was deprived of by Your Honor's ruling and the only way we can do that is to make the record sufficient with respect to other aspects of it which are not reflected in this document.
Your Honor, the only two other witnesses who might possibly be called are people who are, or have been in custody and I understand that they are either here or at hand. Perhaps Mr. Ellison can tell me specifically.
While Mr. Ellison is doing that --
MR. ELLISON: Your Honor, I've just been informed by the marshal Mr. Bragg is present and in a holding cell.
MR. TAIKEFF: So we are in a position to interview one of those two incarcerated persons.
In addition to that, I'm saying this so that Your Honor can make a decision as to how Your Honor wishes to allocate the Court's time in this courtroom, we have reason to believe that it is appropriate to make presentations to Your Honor concerning a witness we are having some severe difficulty in encountering. I think under the circumstances {4119} the best way to do that from the point of view of the defense is to present very briefly the sworn testimony of five people concerning the whereabouts of a certain witness which the United States marshal service seems to be having extreme difficulty in locating, and because it now appears that that witness will not be available tomorrow, under these circumstances we'd like Your Honor to be apprised of the facts by testimony being taken.
THE COURT: Which witness are you talking about?
MR. TAIKEFF: Myrtle Poor Bear.
I've had a personal report from Chief Deputy Warren sometime in the course of this afternoon, I'm not sure whether it was during the luncheon recess or subsequently, but that apparently there is some difficulty in locating her and I think, it is appropriate for defense counsel to make a record on that subject.
THE COURT: And what will her testimony be?
MR. TAIKEFF: She's never spoken to me, Your Honor. I don't know.
THE COURT: Why are you calling her?
MR. TAIKEFF: I'm calling her because I believe she will testify she was not present on June 26th, 1975, and that she was compelled to sign affidavits that she was and identify Leonard Peltier as the person who killed the agents, even though she did not know him at the time. I can't be certain that's {4120} WHAT she's going to testify to because she's refused to answer any questions up until now. But independent investigation reveals that if she takes the stand and tells the truth that's what she would say. And that in addition she harbors an extreme fear of one or more agents of the FBI whom she will name.
THE COURT: And what is the relevance of that, of the testimony you stated?
MR. TAIKEFF: The relevance it shows that the named agents whom she will presumably name suborn a full statement taken under oath which I believe constitutes suborning of perjury in connection with the charges against the defendant in this case. Not some other defendant named in the indictment but the particular defendant named in this case and that this was done in an effort to acquire her as a witness who would testify against him as an eyewitness, a false eyewitness who wasn't there and who didn't know the defendant.
THE COURT: She hasn't testified on the government case. I guess we would all agree on that.
MR. TAIKEFF: Of course she has not testified. And I trust that was a result of Mr. Hultman's evaluation of her.
MR. HULTMAN: The same as Mr. Lowe's evaluation in the opening statement, as I have pointed out to the Court before.
{4121}
MR. TAIKEFF: I don't feel it appropriate to inquire of Mr. Hultman why he made a judgment about not calling a witness, but I can only assume that he did not feel secure about putting her on the stand. But there are many factors why a lawyer decides that a witness who has relevant testimony to offer isn't going to go on the stand.
THE COURT: Myrtle Poor Bear not having testified in the government's case, what testimony could she give now that would be relevant on the issue that's in the indictment and the plea of not guilty?
MR. TAIKEFF: The effort of the agents to get her to lie about Leonard Peltier having shot the agents and her witnessing it.
THE COURT: And what effect do you contend that has on the evidence before this Court? In other words, for what purpose are you offering it?
MR. TAIKEFF: I'm offering it to show that certain agents of the FBI in connection with the effort to --
THE COURT: Which one?
MR. TAIKEFF: She will name the agent.
THE COURT: Do you know?
MR. TAIKEFF: She hasn't talked with us so I don't know. But I have information that indicates she has said that she fears these agents. She knows --
THE COURT: Which ones?
{4122}
MR. TAIKEFF: I don't know, Your Honor. Only she knows. She has refused to speak with us. I have to --
THE COURT: I interrupted, excuse me. I interrupted you. You indicated that she will testify that certain agents of the FBI --
MR. TAIKEFF: Who were working on this case.
THE COURT: Yes. Proceed with what you were going to say.
MR. TAIKEFF: Induced her to sign affidavits falsely and to swear to those affidavits in preparation for this trial. Now the fact that a lawyer evaluated that that witness should not be put on the stand is not the end of the inquiry.
{4123}
May I ask Mr. Hultman a question, your Honor, before I make another further offer of proof?
(Counsel confer.)
MR. TAIKEFF: The only other information I have concerning her I have just gotten by conferring with Mr. Hultman and Mr. Sikma and that is while she was being interviewed and evaluated as a witness -- and I gather that was last summer in connection with the Cedar Rapids trial -- she was reimbursed normal amounts for her expenses. There was no other payment or emolument to her, and that there was a period of time -- I don't know the duration -- during which time she was in protective custody of the United States Marshal's Service.
MR. HULTMAN: And that's at her request, not at the request of the Government, and only remains in that status as long as she has made the request.
THE COURT: How do you elect to proceed right now?
MR. TAIKEFF: While we are all in the courtroom, if it is not inconvenient to the Court, I would call those witnesses in connection with her non-appearance.
THE COURT: Are they available?
MR. TAIKEFF: Yes, they are all available as far as I know.
One second, I have to confer with counsel.
(Counsel confer.)
{4124}
MR. TAIKEFF: I understand, your Honor, from Mr. Ellison that four of the witnesses have left, but one of those witnesses would be Mr. Warren, Chief Deputy; and in addition to that, I am just informed by Mr. Ellison that Chief Deputy Warren has stated that Mr. High Bull who is also in custody should arrive momentarily, so that places before your Honor all the information. Whatever schedule your Honor wishes to follow is acceptable to us.
THE COURT: I will recess until 4:00 o'clock to give you an opportunity to interview the one witness who is now available, Mr. Bragg.
MR. TAIKEFF: Yes. Thank you, your Honor.
THE COURT: The Court is in recess until 4:00 o'clock.

TRIAL TRANSCRIPT