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

JIMMY EAGLE,  FBI WRONGDOING..NOT ADMITTED INTO EVIDENCE

VOLUME 19

(Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
MR. TAIKEFF:  May I proceed with this witness, your Honor?
THE COURT:  You may.
MR. TAIKEFF:  Would your Honor deem it appropriate to advise the witness that the oath he took the other day is applicable at this particular time?
THE COURT:  You have heard counsel, Mr. Eagle, state that the oath that you took the other day is applicable at this time, and that is a correct statement. When a person appears in a court proceeding and takes an oath to tell the truth, that oath is applicable throughout the appearance of that witness in that court proceeding.
THE WITNESS:  All right.
MR. TAIKEFF:  Thank you, your Honor.
Q  (By Mr. Taikeff) Mr. Eagle, have you ever been convicted of a crime?
A  Yes, I have.
Q  And do you know the name of the crime with which you were convicted?
A  Assault with a dangerous weapon.
MR. TAIKEFF:  May I inquire whether the amplification system is working?
THE CLERK:  It is on.
{3946}
Q  (By Mr. Taikeff) Would you adjust the microphone so that you can sit back and relax?
You don't have to lean over into it, and try to speak up a little louder, please.
Would you repeat the name of the crime that you were convicted of?
A  Assault with a dangerous weapon.
Q  Was that in Federal Court?
A  Yes, it was.
Q  And are you presently in the process of serving that sentence?
A  Yes, I am.
Q  Is that the only crime you have ever been convicted of?
A  Yes, it is.
Q  Have you and I ever spoken?
A  Yes, on two different occasions.
Q  And where was that?
A  At the Moorhead County jail.
Q  And in the spring of 1975, you were accused of committing a crime, is that correct?
A  Yes, I was.
Q  In what month was it said you committed that crime?
A  In -- well, there is three different crimes I was accused of committing.
Q  Let's take them in the order in which the events supposedly {3947} occurred.
What was the first crime it was said you committed, and what was the date that it supposedly took place?
A  On May 17th, 1975, I was accused of assault with a dangerous weapon, use of a firearm in the commission of a felony.
Q  Is that the case from which your present sentence evolved?
A  Yes, it is.
Q  Did you go to trial on that case?
A  Yes, I did.
Q  And you were found guilty of one or more separate crimes?
A  Just one. I was found guilty on both of them. I appealed, and they reversed one conviction.
Q  Your conviction stood on the assault with a dangerous weapon?
A  Yes, it did.
Q  Now, were you bailed in connection with that first case?
A  Yes, I was.
Q  And you were permitted then to remain on the Reservation?
A  Yes.
Q  Which Reservation was that?
A  Pine Ridge Indian Reservation.
Q  Is that the place where you have always resided?
A  Yes.
Q  Look over your right shoulder at the chart which is Government Exhibit 71. Do you recognize the area that is shown {3948} on that chart?
A  Yes, I do.
Q  What is it?
A  It is the area of Oglala.
Q  What is it called or how is it known?
A  It is the Pine Ridge Indian Reservation.
Q  How about that particular area?
A  Oglala area.
Q  Just called the Oglala area. Any special name?
A  Jumping Bull.
Q  Jumping Bull, o.k.
Now, getting back to your involvement with the law in the spring of 1975, when were you first taken into custody in that first case, do you recall?
A  No, I don't.
Q  Was it shortly after the middle of May?
A  Yes, it was. I am pretty sure it was.
Q  And when did you have to make your second court appearance on that case?
A  In July, the 9th.
Q  Did you say a particular date in July?
A  July, the best of my knowledge I think July 9th. I am not certain.
Q  But at some time in the month of July?
A  Yes.
{3949}
Q  So between the time you were first charged and bailed in July, you didn't have to make any court appearances, is that right?
A  I had a preliminary hearing.
Q  And then the next court appearance was July?
A  Yes.
Q  O.k. Now, there was a second case that developed in your life, a second criminal case, is that right?
A  Yes, it is.
Q  And is that a case charging you and three other people with an incident that occurred on -- you tell us the date, if you remember.
A  As I recall it was June 24th.
Q  Can you name the other people who were charged in connection with that case?
A  Kermit Thunder Hawk, Hubert Horse and Teddy Pourier.
Q  Now, were you arrested in connection with the charges in that case?
A  Yes, I was.
Q  Do you recall the date that you were arrested?
A  I am pretty sure it was in July.
THE COURT:  You are going to have to speak up.
THE WITNESS:  It was in July.
Q  (By Mr. Taikeff) Is there any connection between your court appearance on your first case and your arrest in the second {3950} case?
A  No, there isn't.
Q  Where were you arrested in connection with the second case?
A  I voluntarily surrendered.
Q  I see. Were you ever tried in that case?
A  Yes, I was.
Q  And the result?
A  I was acquitted on the charges.
Q  Now, as far as you know, there was only one other case, criminal case against you?
A  Yes, there was.
Q  And just tell us the charges in connection with that.
A  Murder, first degree murder.
Q  The death of whom?
A  Two FBI Agents.
Q  Tell us whether or not you have ever had a trial.
A  No, I didn't.
Q  Now, when for the first time did you learn that your name was associated with the death of the FBI Agents on June 26th, 1975?
A  It was two days, about two days after the incident happened.
Q  And how did you learn that your name was associated with that incident?
{3951}
A  It come out over the news, and I just -- I didn't know about it.
Q  On June 26th, 1975, were you at the Jumping Bull compound?
A  No, I wasn't.
Q  What was the closest you came to the center of Government Exhibit 71, which is the residences, on June 26, 1975?
A  The closest?
Q  The closest any time between the beginning of the day, at 12:01 a.m., meaning just after midnight, all the way through the day until the end of the day at midnight again, the closest you came at any time to those residences in the center of the diagram.
A  I would say about 15 miles.
Q  Where were you?
A  In Pine Ridge, South Dakota.
Q  Were you indoors or outdoors?
A  Indoors.
Q  And did you know at that time that there was a warrant outstanding for you?
A  No, I didn't.
Q  Specifically where were you on that day? You have told us the town, you have told us you were indoors.
A  I was at my grandmother's house.
Q  What is her name?
A  Gladys Bisenet.
{3952}
Q  Now, you went to court -- you believe the date is July 9th, I will refer to it as July 9th from this point on -- with or without a lawyer?
A  With a lawyer.
Q  And what is that lawyer's name?
A  His name is Marvin Amiotte.
{3954}
Q  Where does he have his offices?
A  He has two offices. One's in Pine Ridge, South Dakota and the other one's in Mission, South Dakota.
Q  Now, when for the first time were you arrested and charged with the death of the two agents?
A  It was on July 27th. In the early morning.
Q  And where were you at that particular time?
A  I was in Pennington County Jail.
Q  That's --
A  In Rapid City
Q  That's the local jail in Rapid City, South Dakota?
A  Yes, it is.
Q  Now, you told us that on your first case you had been bailed?
A  Yes.
Q  And that you had to make a court appearance on the 9th. Did you show up for that court appearance?
A  Yes, I did.
Q  Now, what was the reason you were in the Pennington County Jail towards the end of July, 1975?
A  That I was charged with the two robberies, robberies of the incident that arose from June 24th.
Q  Were you bailed on that case?
A  No, I wasn't.
Q  Was bail set?
{3955}
A  Yes, it was.
Q  How much?
A  25,000.
Q  Were you able to make the bail?
A  No, I wasn't.
Q  Is that the reason why you were in custody?
A  Yes, it is.
Q  Now, did you ever have any conversation with Mr. Amiotte concerning the fact that your name had come up in the presence as a person possibly involved in the death of the FBI agents?
A  Yes, it did.
Q  What was the nature of that conversation?
MR. HULTMAN:  Well, I object to that clearly as being hearsay, Your Honor.
MR. TAIKEFF:  Your Honor, I'm not offering it for the truth. I'm offering it to show that the declaration was made.
THE COURT:  You may answer the next question. The last question rather.
A  Yes. We did talk about it and he said, you know, that there will be a lot, you know.
THE COURT Just a moment. Question was:  What was the nature of the conversation.
A  It was about -- the nature was keeping silent.
MR. TAIKEFF:  May I pursue that, Your Honor?
THE COURT:  I didn't hear his answer.
{3956}
MR. TAIKEFF:  He said it was in the nature of keeping silent.
MR. HULTMAN:  Well, again I object to this as one, as having no probative value; two, whatever the nature of the conversation between the client and his lawyer, I clearly don't believe that has any relevancy here. There's been no showing of any foundation, Your Honor. No probative value.
THE COURT:  I will permit you to pursue it.
MR. TAIKEFF:  Thank you, Your Honor.
THE COURT:  I'll permit you to ask another question at least.
MR. TAIKEFF:  There's not much more to it. I just want to get to a specific or two.
Q  (By Mr. Taikeff) It it correct for me to say that he gave you some kind of a warning?
A  Yes, he did.
Q  And is there any doubt in your mind that at that time he knew about what was in the press concerning this?
A  Yes, it is.
MR. HULTMAN:  This again calls for an assumption and --
THE COURT:  That objection is sustained.
MR. HULTMAN:  Leading and everything else.
Q  (By Mr. Taikeff) What did he tell you concerning keeping quiet?
{3957}
MR. HULTMAN:  And again I raise the same objection, Your Honor.
MR. TAIKEFF:  I think Your Honor has already ruled on that objection.
THE COURT:  Has it been brought out where and when the conversation was held?
MR. TAIKEFF:  I'll be glad to do that.
Q  (By Mr. Taikeff) Would you tell us where you had this conversation with Attorney Amiotte?
A  In a federal building in Rapid City.
Q  All right now, what did he tell you on the subject of keeping quiet?
A  He told me that my name was put in the paper quite a few times and that it would be a great possibility that the Government would put somebody in the cell with me and that he said don't say nothing about it.
Q  Did he say anything to you about discussing any news reports with anybody?
A  No, he didn't. He just asked me to remain silent.
Q  Now, do you remember the approximate date or the exact date hen he gave you this instruction?
A  It was on the same day that I turned myself in.
Q  Can you give us a date for that?
A  Well, July 9th.
Q  Okay. In other words, the day that you had to go to court {3958} on your first case is the day that you surrendered yourself for the second case?
A  Yes.
Q  The incident, alleged incident of June 24th?
A  Yes.
Q  Okay. Then you remained in the Pennington County Jail?
A  Yes.
Q  From that day until at least the FBI agents came to arrest you on June 26th -- I'm sorry, July 26th, 7th or 8th, whatever date it was?
A  27th. Yes, I was in custody.
Q  Do you know the names of the agents who came to arrest you?
A  No,not at this minute. No, I don't.
Q  Do you know the names of any of the agents who came to arrest you?
A  No.
Q  Between the time Attorney Amiotte gave you whatever instruction or advice he gave you and the time the agents came to arrest you did you have any conversation with anyone concerning the death of the agents?
A  There was, at that time there was quite a bit of talk. But like I say I kept it to myself.
Q  What was the reason for doing that?
A  For one because they're, they was looking for the reason.
Q  I can't hear.
{3959}
A  For one, they was looking for a good reason to charge me with it and that, you know, it was just something I didn't care to talk about.
Q  Did you ever meet an agent by the name of Jacob --
MR. HULTMAN:  Now, again, Your Honor, I object. The foundation that this is going to be is clearly leading. I have no objection again to ask this witness whether or not he remembers any agent, and so far that question has been asked and been answered, and I don't want anything leading so that the witness will be given a specific name of some kind.
MR. TAIKEFF:  Your Honor, in spite of the fact that I'm entitled to lead for a foundation I will accept Mr. Hultman's suggestion.
MR. HULTMAN:  Well, that's way beyond any foundation, especially in light of the foundation that he hasn't remembered any names of agents.
MR. TAIKEFF:  No, Your Honor. He said he didn't remember the names of agents that arrested him.
Q  (By Mr. Taikeff) Do you know the names of any FBI agents who had any contact with you in connection with this case?
A  Yes, I do.
Q  Tell us the name or names.
A  Gary Adams.
Q  Beg your pardon?
{3960}
A  Gary Adams.
Q  When did you meet Gary Adams for the first time?
A  It was around the middle of August.
Q  Where did that meeting take place?
A  It was in the Pennington County Jail.
Q  And did you call for him to come and see you?
A  No, I didn't?
Q  Was he alone when he appeared?
A  No, he wasn't.
Q  How many people were with him?
A  There was one other agent.
Q  Do you know the name of that agent?
A  No, I don't.
Q  Did you have any conversation with Mr. Adams?
A  Yes, we did.
Q  Tell us about that.
A  Well, he come in and he asked me to sit down.
MR. HULTMAN:  Again, Your Honor, I object on the grounds of relevancy.
THE COURT:  Counsel have to approach the bench. I do not see the relevancy in that question.
(Whereupon, the following proceedings were had at the bench:)
MR. HULTMAN:  Your Honor, my objection is on the grounds of, first of all, they're attempting to show that there {3961} has been no discussions because Amiotte has told him not to say anything to anybody. Now, they're turning around and they're trying to indicate that there's some discussions of some kind and I fail -- my objection is on the basis --
MR. TAIKEFF:  I'm not trying to show there is a discussion.
THE COURT:  What I am concerned about is what relevancy of -- you've asked him to go into his conversation with Adams. I'm concerned about what the relevancy of that conversation is.
MR. TAIKEFF:  The relevancy, Your Honor, is that Adams said to him we want your help. Well, I'll tell you the entire thing. He said, "You don't have to say anything. I just want you to listen to what we have to say." And he said, "All right, I'm listening." And he said, "We want your help in this particular case and we know that you were not there that day. But if you do not help us we will see to it that you will be charged with the murder of the agents." He refused to assist and he was charged with the murder of the agents.
MR. HULTMAN:  Well, I object to that on the grounds that it -- no relevancy of any kind and it's totally collateral.
MR. LOWE:  Habits and practices, Judge, under the Federal Rules of Evidence that at least --
THE COURT:  I'm not sure that that's admissible under habits and practices, but there is the testimony in the case {3962} that he was identified; and now the fact that Adams says -- that if Adams told him that he knows he wasn't there.
MR. HULTMAN:  Well, now I want to now make very clear, and I think that counsel for the witness ought to be here, he's now under oath.
THE COURT:  He's right behind you.
MR. HULTMAN:  He's now under oath. There's no question in my mind at least what I think the results of a rebuttal witness is going to be. He's going to say that that is not true.
MR. TAIKEFF:  I understand that.
MR. HULTMAN:  That man is then placed in a position, I want to make it very clear, of giving testimony on the record under oath which is the basis for perjury. I want that made very clear here at the bench.
MR. TAIKEFF:  Your Honor, the second meeting which the witness testified took place between himself and myself, was in the presence of his counsel who is presently at the sidebar, and indeed was at the request of his counsel. Because one of the things counsel was concerned about was what were the prospects for the prosecution of his client as a result of testifying, and one of the matters we discussed, and I can only assume that his counsel is well informed on, is that Mr. Hultman had said at the sidebar, the first time we came to the sidebar on this subject last week, that the Government {3963} would not be prosecuting this witness merely because he testified, but only if they could have proof that he testified falsely.
MR. HULTMAN:  That's the point I'm now raising.
MR. TAIKEFF:  And I reported to the witness's counsel, and I said all I want from your client is the truth as he knows it. And if he tells the truth he should have no fear of testifying; that he should know that like any other witness when he testifies. He testifies under oath and if he does not tell the truth he exposes himself to a perjury prosecution.
I assume that counsel for the witness has thoroughly discussed this with his client and advised his client of the absolute necessity for his own protection, and in the name of justice to tell the truth.
MR. HULTMAN:  All I want to do is raise the issue, Your Honor, so that I don't, later get accused that I said one thing and did another,
My basic objection is still the same, Your Honor. One, there was no testimony of any kind in the Government's case that this witness was present at the day of the events happening. Not one scintilla --
THE COURT:  As I recall Mr. Coward testified that he was. Wasn't that brought out?
MR. HULTMAN:  No, no, no. Not one scintilla of evidence in the Government's case. It is only when the {3964} defense brings a witness, that he's put on the stand and says he observed whom he things to be Jimmy Eagle. It's only then that we now start to establish a case of some kind that a phantom was there, and now we set up and we attack. But, yes, absolutely ---
MR. TAIKEFF:  Oh, Mr. Hultman, I must beg to differ with you. I would like to remind Mr. Hultman that in your case Coward testified that on that afternoon he did not have time to do an in depth interview, but on the way back in the car Stoldt told him that he spotted Jimmy Eagle.
MR. HULTMAN:  No, no. I would object to that, it being in the record as far as the Government's case. Absolutely not.
MR. TAIKEFF:  That is how he explains the fact that after having testified that he didn't see the guy for a long time, namely until September when I showed him the one page 302 which was indicated June 28th. He said, "Oh, yes." In fact, he said two things. He said that was a result of a casual conversation on the way back in the car, and he claimed that that date had to be wrong. That it wasn't the 28th. Let me make it clear which date I'm talking about. The date of the interview was not the 28th, he said, that was a typographical error. That it should have read June 26th. And he said that was a result of a casual conversation in the car that Stoldt reported to him that he identified Jimmy Eagle. {3965} That is as clear in my memory as anything.
MR. HULTMAN:  All right. I would go to the record to find out what it shows. I'm not, I'm not, and I'm not saying counsel is not accurately quoting the record. I think it's honestly and fairly in his mind,
MR. TAIKEFF; I'm certainly trying.
MR. HULTMAN:  And I had, I admit to that without any question. What I'm saying, one, is I don't think that that's what the record shows. I don't think that Jimmy Eagle's name appears in the record specifically. Even if it does, and my memory is not that good, I confess I might possibly be wrong, if it does it only appears there specifically as a cross-examination question of counsel. Does not appear there as part of the Government's case in any way.
MR. TAIKEFF:  But evidence is evidence whether it comes out on cross-examination or whether it comes out on direct. It's a Government position, elicited from a Government agent who was an eye witness.
MR. HULTMAN:  But the postulate was --
THE COURT:  Just a moment. You say evidence is evidence. Certainly that's true, but what is this evidence, what does this evidence seek to prove? What are you attempting to prove by this evidence?
MR. TAIKEFF:  Of this witness? Is Your Honor asking me about this particular witness?
{3966}
THE COURT:  About whether or not this witness was spotted on the afternoon of the 26th.
MR. TAIKEFF:  Well, Peltier was presumably spotted by the same person, but he didn't remember it for a little more than two months when he was reinterviewed. He then remembered that he not only saw Jimmy Eagle of whom he was fairly positive, as indicated in the paragraphs which Your Honor allowed into evidence this morning, but also recalled that he spotted Leonard Peltier.
Now, that entire sighting episode is legitimately suspect and I think there's enough evidence in the record to make the jury suspect of that particular evidence. So this witness's testimony about the fact that he never came closer than fifteen miles that day certainly is relevant to that particular aspect of the case.
MR. HULTMAN:  Well, beyond that now, we're now going still into another yet another matter and that's the part I'm primarily objecting to, Your Honor. First of all it is my contention that it was not a part of the Government's case in any way, anything concerning the matters which counsel has indicated here in the record. Those matters only came into this record as a result of counsel's -- if it did happen in cross-examination as a result of counsel's cross-examination.
What it then does, and the purpose as counsel has indicated here, is this very simply one, to show that Eagle was {3967} not here. That's already in the record. There isn't any question about that is in the record. The government did not bring the issue of Eagle into this trial. That I know to be a fact without any question.
MR. TAIKEFF:  No question about that.
MR. HULTMAN:  I will stake my life on that because I was the one who programmed this case.
Secondly, that it is now apparent that what happens then is after you established that Eagle wasn't there, which the Government established in effect by not putting him into the picture to begin with, you then set up a strawman who through other testimony now is attempting to be elicited that alleged statements which the witness later made and are now the subject of possibility of a future charge which is why I bring it here Whether he tells the truth or doesn't tell the truth are matters which have no relevancy and are totally collateral. Whether he said later to somebody else that he was or wasn't there after they've established that he wasn't there is totally and highly prejudicial. That's the point I'm trying to make.
MR. TAIKEFF:  Your Honor, there is a statement by Peltier in evidence from a Canadian law enforcement official which said, "No, I didn't kill those agents but I know who did." Now, here is a witness who in essence could not have known anything at all because he wasn't there. And I don't {3968} think the Government contends that he was there, who is told we know you weren't there and we want your help in this particular case. And if you don't give it, we'll see to it that you are prosecuted. And then, Your Honor, he managed to get indicted for statements which he allegedly made to people who were his cellmates after he's been carefully warned by his lawyer that if he doesn't keep quiet he's going to end up getting in a lot of trouble with his cellmates.
Now, Leonard Peltier is also on trial in this particular case and one of the many arguments that might be made to the jury is that he, too, admitted that he had some knowledge or might be in a position to help. But of course didn't help the Government, and I think counsel are entitled to bring out in this particular case what was done by the FBI in collecting information and getting witnesses prepared to say certain things, even though those things were A. untrue and B. known to the agents to be untrue. That --
MR. HULTMAN:  Well, I object to this, Your Honor. First of all that that's not a proper showing of the facts. First of all there was evidence, they brought it out here themselves in this trial in their case, there was evidence that this witness was there. Now, I'm not testing whether it's truthful or untruthful.
MR. TAIKEFF:  Who said he was?
MR. HULTMAN:  You did by Stoldt. You called him. I {3969} didn't call him.
MR. TAIKEFF:  But --
MR. HULTMAN:  Wait until I get done.
MR. TAIKEFF:  I'm sorry.
MR. HULTMAN:  That's the first bit of evidence that he was there.
MR. TAIKEFF:  I'm talking about the times that counsel is now --
THE COURT:  I was under the impression that Coward had testified that he was there.
MR. HULTMAN:  No, no, absolutely not.
MR. TAIKEFF:  Peltier, Your Honor.
MR. HULTMAN:  Peltier. Coward only testifies from the time of the beginning until today.
THE COURT:  Even in cross-examination?
MR. HULTMAN:  Oh, yes. They have said this man was there in any way.
MR. TAIKEFF:  I must differ with Mr. Hultman. He said that Stoldt told him that Eagle was there.
MR. HULTMAN:  I'm saying, all right, Counsel, what I'm saying is that one, Coward never saw this man there. Period. And is there any objection about that?
MR. TAIKEFF:  No, agreed.
MR. HULTMAN:  All right. So he's telling the truth as far as that's concerned.
{3970}
Now, at the time the agent goes to seek an interview what does the agent know, just assuming the record in this. One, there is a statement by an eye witness that he sees this man here, Stoldt's, the man they called. Now, that's at least the basis for which an agent better be asking some questions about. Secondly, he has statements. Now, this I don't know all the times, but there are allegations by individuals that this man has told certain details about the event.
MR. TAIKEFF:  Yes.
MR. HULTMAN:  Thirdly, you said that your man, one, is instructed not to talk to anybody, and thirdly, you are saying that the man who's going to seek the information knows he wasn't there and thus is being dishonest. I say there's no showing of that kind of any kind. The man is there seeking information. His only knowledge is that he has information this man was there.
MR. TAIKEFF:  Well, I say it's an admission against the interests of the Government for an agent of the Government who is actively involved in this case one month after the incident to say to somebody we know you weren't there. And if you don't cooperate with us and help us in the ways we want you to help us we're going to see to it that you get indicted.
MR. HULTMAN:  I say that's a collateral matter. Two, {3971} it will force me to bring the witness back to prove that this man is a liar at that particular point about a matter which is totally collateral and has no relevancy.
THE COURT:  The ruling of the Court is that it is a collateral matter and the objection is sustained.
{3972}
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
Q  (By Mr. Taikeff) When I asked you about a visit from an agent who you could identify by name, I think you said it was in the middle of August, is that correct?
A  Yes. Around that time.
Q  Would you think about whether it may have been at an earlier time than the middle of August.
A  Might --
Q  Or put it in terms of whether it was before or after you were arrested.
A  It was after I was arrested.
MR. TAIKEFF:  I have no further questions of this witness, Your Honor.
MR. HULTMAN:  Might I have just one moment, Your Honor, to confer with Counsel.
THE COURT:  You may.
MR. TAIKEFF:  Could we come to the side bar, Your Honor?
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF:  Does Your Honor's ruling preclude me from asking this witness whether he made certain specific statements to certain people?
{3973}
THE COURT:  What do the statements relate to?
MR. TAIKEFF:  A detailed description of the events of June 26th.
MR. LOWE:  As purported eyewitness to the execution, Judge.
THE COURT:  What is the government's position on that?
MR. HULTMAN:  I object, Your Honor. Again creating under the total collateral matters. He's already been asked whether or not, I believe the words to this effect that he discussed this with anybody, I think your earlier question indicated, and, secondly, he was given specific instructions by his Counsel not to discuss it with anybody. Now if you want to ask the one single question, did you discuss this case with anybody other than your Counsel, I don't see any objection to that. I think it's repetitive. I think you've already asked it. But to go beyond that --
THE COURT:  What if he says yes?
MR. HULTMAN:  Well, again I get back to the collateral matters again. That's the reason for my objection from the very beginning.
MR. LOWE:  Judge, I think it's important for you to know that the statements which purportedly were attributed rather to Mr. Eagle and which we seek to explore with Mr. Eagle include a purported eyewitness account to the shooting of these agents. I believe I indicated, in details which first {3974} of all are impossible by the pathology. I think that would be a finding anybody made, and Counsel would concede, so that on its face it appears not to be a truthful eyewitness account and, secondly, it fits into the pattern we believe has been established prima-facie which we seek to show by way of impeachment of government witnesses, FBI agents and some of the other accounts that are in the record; namely, they were seeking willfully or recklessly statements of people who purported to be eyewitnesses without verifying them. In some cases it was obvious they were impossible because of the pathology of the described killing. In Mr. Eagle's case he describes sub-machine gunning, crisscrossing the chests of the agents. We know there were only three bullets in each agent. We believe this goes directly to the credibility of the witnesses who do testify here such as Mike Anderson. We believe it goes to the credibility of the FBI agents. If the jury believes that they have conducted themselves improperly or illegally through these activities, we believe it shows the FBI agents in this case, not one or two or three, that's what we offer it for.
MR. HULTMAN:  Your Honor, could I --
THE COURT:  The offer is denied. This witness has testified that he was not present. If we get into this other matter you're going to get into a trial whether or not he was present. He has testified he wasn't present.
{3975}
MR. TAIKEFF:  There is also the argument to be made, even if he wasn't present he may have said things which would indicate he was present.
THE COURT:  What relevance would that have except whether or not he was present?
MR. TAIKEFF:  If, A, he wasn't present and, B, he never said anything by way of describing the events, then it is not possible for anybody to have heard him describing these events, whereas --
THE COURT:  That isn't in the case.
MR. HULTMAN:  That isn't in the case. That's totally collateral.
THE COURT:  That isn't in the case. He described --
MR. TAIKEFF:  I'm going to call an agent to testify on that subject. That's going to be my next witness.
MR. LOWE:  Which we were prevented from putting on as either cross or in the government's case by Your Honor's ruling saying we had to call in our part of the case.
MR. HULTMAN:  And my objection will be from the very same standpoint as it is right now, that that's a totally collateral matter.
MR. LOWE:  Credibility of witnesses is not a collateral --
MR. HULTMAN:  You aren't attacking anybody's credibility --
MR. LOWE:  J. Gary Adams, just to name the first one.
THE COURT:  How does this attack the credibility of {3976} Adams?
MR. LOWE:  He's the one that indicated this witness, he had made the statement, "We know you're not there and don't help us."
THE COURT:  That's not in the case.
MR. LOWE:  We're trying to put it in the case to show credibility.
MR. TAIKEFF:  What we're exploring here are the tactics by the FBI which were employed in creating witnesses who had no knowledge of the subject matter. This is one of the people they were trying to solicit for that purpose and he turned them down and as a result they went out and found witnesses to say things about him which were not true which never took place and used that as a basis for indicting him. Now how can you say that is not relevant to this particular case when they were at the time exploring an ambush theory. Their postulated theory which they released to the news media was that this person purposely, purposely got a warrant issued against him, purposely got a warrant issued against him, not accidentally, but purposely so that it would draw FBI agents into the Jumping Bull area.
THE COURT:  The investigative agency had the responsibility to explore all leads that might be made available to it and in preparation for trial, preparation for their indictment it seems to me they would have the right to adopt, to have a right {3977} to adopt or a right to reject certain leads and present their case accordingly.
MR. TAIKEFF:  And what, Your Honor, if the statement purportedly made by this witness to the government informant witness contained information which no rational person could believe, even a knowledgeable participant, would have told someone in the process of describing his involvement. The statements allegedly made by this witness included details that no rational person in my opinion could believe that a confessing cell mate, a guilty confessing cell mate would bother to say but could only come and only have been supplied by the FBI itself.
MR. HULTMAN:  Your Honor, that's a totally collateral matter.
THE COURT:  The Court has ruled. You may make an offer of proof if you wish as to what you intend to prove.
MR. TAIKEFF:  I would like to do that. But I'd also like to make inquiry of him whether present or not on June 26th he made any statements concerning the events of June 26th because I have not eliminated that possibility from the record. It leaves the government in a position that, sure, he wasn't there but he was boasting he was there when in fact he wasn't there.
MR. HULTMAN:  My objection is still there for the reasons I've indicated, even to that question.
{3978}
THE COURT:  I'm going to excuse the jury and let you ask the witness.
MR. TAIKEFF:  Thank you, Your Honor.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
THE COURT:  Members of the jury, it will be necessary I excuse you from the courtroom for a few minutes in order this witness might be questioned on legal matters on which the Court has ruled and for which Counsel desires to make a part of the record.
As I informed you in my preliminary instructions, it's the responsibility of the Court to make the determination as to what evidence is admissible and what evidence is not admissible and we have a case here where ruling may be made, has been made and Counsel desire an opportunity to make a record of what testimony of the witness would have been and this is necessary because of my ruling that it may be made out of the presence of the jury. So the jury may leave the courtroom at this time.
(Whereupon, the following proceedings were had in the courtroom without the hearing and presence of the jury:)
MR. TAIKEFF:  May I proceed, Your Honor?
THE COURT:  You may proceed.
The record may show this interrogation is being received on an offer of proof.
{3979}
MR. HULTMAN:  And my objection will be from the beginning, Your Honor, so that I won't enter anything as far as the offer. I want that clear on the record.
Q  (By Mr. Taikeff) I think that the last question I put to you before we went to the bench to speak with the judge is what did Agent Gary Adams say to you when he came to see you?
A  He come in and asked me to sit down and it was him and another agent there at the time and told them I refused to talk to them. He said, "We ain't asking you to talk, we're asking you to listen." That's when they brought up the thing about June 26th.
Q  What did they say about June 26th?
A  He said, "You know you're in a lot of trouble, don't you," and he went on to say that how much time I'd be facing, how long I'd be behind bars. He said, he also went into saying, "We know you know." He said, "We know you wasn't there but we think you could help us by linking a few things together for us," and then he went on to say that, he said, "Your brother's in a lot of, brother's in a lot of trouble," and I said, "Who?" He said, "Leon. He's out there with those guys in Oglala," and he went on. The other agent got up and he said, "Well, we could help you in any way you want. We'll get you out of here." He was referring to the jail. And he also said, "We could help you with your financial problems."
Q  Did he tell you what would happen to you if you refused to {3980} help him?
A  I would be in jail for quite awhile and I'd be indicted on a charge of murder.
Q  Now do you know a person by the name of Melvin White Wing?
A  Yes, I do.
Q  Where do you know him from?
A  He was in the Pennington County Jail, too.
Q  While you were there?
A  Yes.
Q  In July of 1975?
A  Yes, he was.
Q  Were you in the same cell?
A  Yes, we were.
Q  How many people were in that cell?
A  Approximately nine.
Q  Do you know a person by the name of Marion Allen High Bull?
A  Yes, I do.
Q  And where do you know him from?
A  From the Pennington County Jail.
Q  Was he in the same cell with you?
A  Yes, he was.
Q  Do you know a person by the name of Marvin Bragg, B-r-a-g-g?
A  No, I don't.
Q  Do you know whether someone named Marvin Bragg was ever {3981} in the same cell with you in Pennington County Jail?
A  I don't know.
Q  Do you know a person by the name of Rickey Walker?
A  Yes, I do.
Q  Was he in the Pennington County Jail with you?
A  Yes, he was.
Q  During July of 1975?
A  Yes.
MR. TAIKEFF:  Would the government stipulate that Rickey Walker is an alias used by a person who's true name is Marvin Bragg?
MR. HULTMAN:  If that's a fact?
MR. SIKMA:  Yes. Yes.
MR. TAIKEFF:  Would you state for the record.
MR. HULTMAN:  So indicated.
Q  (By Mr. Taikeff) Do you know a person by the name of Gregory Dewey Clifford?
A  Yes, I do.
Q  And was he in the Pennington County Jail with you in July of 1975?
A  Yes, he was.
MR. TAIKEFF:  IF I may have just one moment, Your Honor, please.
THE COURT:  You may.
MR. TAIKEFF:  To get a document.
{3982}
Q  (By Mr. Taikeff) Now in July of 1975 did you ever tell Gregory Dewey Clifford that you were at the Jumping Bull compound on June 26th when an FBI agent showed up and was told to leave because this was private land?
A  No, I didn't.
Q  Did you ever tell Clifford that there were many people at that location and that they were armed, some of them with automatic weapons, including M16s and M14s?
A  No, I didn't.
Q  Now for the rest of this line of questioning I'm referring to Clifford. I will not continue to repeat his name, all right, do you understand that?
A  Yes.
Q  Did you ever tell him that after the agent was told to leave he left and that after that two FBI cars returned to the Jumping Bull location?
A  No, I didn't.
Q  Did you tell him that a shot was fired at these two cars?
A  No, I didn't.
Q  Did you tell him that one agent got out of his car and returned the fire with his handgun?
A  No, I didn't.
Q  Did you tell him that the other agent got out of his car, went to the trunk of the car, opened the trunk and got out what appeared to be a high powered rifle?
{3983}
A  No, I didn't.
Q  Did you tell him that the agent with the rifle was shot and went down where he could not do anything?
A  No, I didn't.
Q  Did you then describe a situation to him where you were standing approximately four feet from the other agent, meaning the one who had the handgun?
A  No, I didn't.
Q  Did you tell him that this agent attempted to get back into the automobile and he was dragged from his automobile by the Indian people who were there?
A  No, I didn't.
{3984}
Q  Did you say that the agent was questioned about why he was interfering with Indian land?
A  No, I didn't.
Q  Did you tell him that the agent said that he, the agent, was a friend of the Indian, that he had Indian friends and that he had a family, and that he begged for his life?
A  No, I didn't.
Q  Did you tell him that an Indian person who was standing immediately on your left fired at this particular agent with a .45 caliber Thompson submachine gun?
A  No, I didn't.
Q  Did you show Clifford by indicating with your finger on your chest the place or places where the agent was supposedly shot by the .45 caliber Thompson submachine gun?
A  No, I didn't.
Q  Did you tell him that the agent went four feet into the air and back into the car, putting a dent in the car?
A  No, I didn't.
Q  Did you tell him that you and your friends there took turns shooting the agents on the ground?
A  No, I didn't.
Q  Did you then tell Clifford that certain things were taken out of the FBI cars or from the agents?
A  No, I didn't.
Q  Did you tell him that a pair of binoculars was taken from {3985} the agents or their car?
A No, I didn't.
Q  Did you tell him that a green Army-type jacket with FBI on the back was taken from the agents or out of the car?
A  No, I didn't.
Q  Did you tell him that both of the agents' handguns were taken from the agents or out of the car?
A  No, I didn't.
Q  Did you tell him that the agents' shotgun was taken from the agent or out of the car?
A  No, I didn't.
Q  Did you tell him that one of the cars was moved a certain distance?
A  No, I didn't.
Q  Did you tell him details about other agents' cars and the BIA police arriving on the scene after the agents were dead?
A  No, I didn't.
Q  Did you tell him how people shot at these cars to keep the BIA people and the agents away?
A  No, I didn't.
Q  Did you tell him of the shooting in the head of Joe Stuntz?
A  No, I didn't.
Q  Did you tell him of the shooting in the head of some Indian male?
A  No, I haven't.
{3986}
Q  Did you describe the Indian male who was shot in the head as the person who was wearing the FBI jacket that looked like an Army jacket with FBI on the back?
A  No, I didn't.
Q  Did you describe to him how you escaped --
A  (Interrupting) No, I didn't.
Q  Let me ask you the complete question, please.
Did you describe to him how you and the others escaped as it was starting to get dark?
A  No, I didn't.
Q  Did you describe to him the escape party as including women, and that you left by the back way?
A  No, I didn't.
Q  Did you describe to him your route in part by saying you went down a ravine and you made your way to a pasture in a valley?
A  No, I didn't.
Q  Did you tell him that you were shot at by the police and the FBI while you and the others were in the ravine, and that you returned fire at the police and the FBI?
A  No, I didn't.
Q  Did you tell him that you remained in hiding until you had to make your court appearance?
A  No, I didn't.
Q  And then showed up in court because you had an obligation {3987} to be in court?
A  No, I didn't.
MR. TAIKEFF:  Your Honor, at this particular time and for the purposes of this hearing only, I would like to have marked and introduced into evidence a copy of a statement dated July 27, 1975, which purports to be a statement given to the FBI by Gregory Dewey Clifford concerning things which Mr. Clifford said this particular witness said, which statement is witnessed by Special Agents Coulson -- (spelling) C-o-u-l-s-o-n -- and Wood.
MR. HULTMAN:  For the purposes of the hearing itself, your Honor, I would have no objection.
THE COURT:  It may be marked.
MR. TAIKEFF:  That, your Honor, is Defendant's Exhibit 207. May I assume --
THE COURT:  (Interrupting) The record may show that 207 is received without objection as a part of the offer of proof which counsel has put into the record in connection with the testimony of this witness.
MR. TAIKEFF:  May I assume that subject to your Honor reading this for precision and exact detail, should your Honor choose, at this point your Honor understands I have exacted in asking those questions the purported statements from the Defendant's Exhibit 207.
THE COURT:  I understand that.
{3988}
Q  (By Mr. Taikeff) Did you ever make any statements exactly like or similar to the ones that I have just detailed to you one at a time?
A  No, I didn't.
Q  To any person anywhere?
A  No, I haven't.
Q  Now, I ask you specific questions concerning possible statements you made to Marion Allen High Bull, or that you may have made at a time and place where Marion Allen High Bull was present.
Did you tell Marion Allen High Bull that the FBI guys came in two cars and went down by the creek in Oglala?
A  No, I didn't.
Q  And did you tell him that the people there "opened up on them" down by the creek and the FBI guys started shooting back?
A  No, I didn't.
Q  Did you tell him that the people there hit one of the FBI guys and he went down?
A  No, I didn't.
Q  Did you tell High Bull that the next thing you could recall was that you and the other people were up real close to the second FBI guy who was standing outside his car?
A  No, I didn't.
Q  Did you say that this FBI guy who was standing outside his car said, "I have got a wife and kids"?
{3989}
A  No, I didn't.
Q  Did you tell him that you and the other people there got up real close to the second FBI guy and you and the other people there shot him, meaning the FBI person?
A  No, I didn't.
Q  Did you tell him that this shot knocked the second FBI guy back against his car and put a dent in his car?
A  No, I didn't.
Q  Did you tell him that you and the other people there took turns in shooting the FBI Agents?
A  No, I didn't.
Q  Did you tell him that you and the others escaped by going down to the creek and going around behind Oglala?
A  No, I didn't.
Q  Did you tell him that the second FBI guy got out of his car with his hands up and that you and the others were able to get real close to this second FBI guy, and then you and the others let him have it?
A  No, I didn't.
Q  Did you tell him that the second FBI guy who was shot real close was sprayed across the chest at close range?
A  No, I didn't.
Q  Did you tell him that a bullet came through one of the houses, and that it hit Joe Stuntz and that is how Joe Stuntz got killed?
{3990}
A  No, I didn't.
Q  Did you tell him that you knew of an agent by the name of Price, that if you ever got a chance to do so, you would blow away FBI Agent Price because you didn't like Agent Price's tactics?
A  No, I didn't.
MR. TAIKEFF:  Your Honor, likewise I ask for the purposes of this hearing to have marked a 302 dated July 27, 1975, and a statement dated August 1, 1975, the first document purporting to be an interview of Marion Allen High Bull on July 26, 1975, and the second document being a statement signed by Marion Allen High Bull and witnessed by two agents, Fredrick Howard and Richard Mahler -- (spelling) M-a-h-l-e-r.
THE COURT:  What is the position of the Government?
MR. HULTMAN:  Your Honor, again -- and I think it is very clear and will continue to be, your Honor -- one, that I have no objection for the purposes of the hearing but certainly I have my standard objections as far as the remainder of the trial.
MR. TAIKEFF:  I understand that, your Honor.
THE COURT:  The exhibit is received on the same basis that the prior exhibit was, that is, made a part of the record on the offer of proof.
MR. TAIKEFF:  May I assume once again that your Honor {3991} realizes that the questions were posed by the use of these two documents? Those are Exhibits 208 and 209, respectively in the same order in which they were described.
THE COURT:  The assumption of counsel is correct, and the record will show the identification of the exhibits.
Q  (By Mr. Taikeff) Now, sir, I want to ask you some questions about possible statements, such as the ones I just questioned you about concerning a person named Marion Allen High Bull, and put these questions to you.
Did you ever make any of those statements which you have just said you didn't make to Mr. High Bull at a time or in a place where Mr. High Bull may have been present so that he might have overheard you making those statements to somebody else?
A  No, I didn't.
Q  And did you ever make any of those statements which I just read to you concerning Mr. High Bull to any person at any time in any place?
A  No, I didn't.
Q  All right. Now, I want you to divert your attention to the person known as Melvin White Wing, and the questions that I put to you now concern any possible statements you may have made to Mr. White Wing.
Did you ever tell Mr. White Wing that one of the FBI Agents went to the trunk of his automobile, opened the trunk and this agent got shot and went down?
{3992}
A  No, I didn't.
Q  Did you tell him that the second FBI Agent threw his gun down and said he surrendered, and he didn't mean for this to happen this way?
A  No, I didn't.
Q  Did you tell him that the second FBI Agent said he had a wife and kids?
A  No, I didn't.
Q  Did you tell him that you and the other people there then shot this second FBI Agent, and that then everybody took turns shooting the two FBI Agents?
A  No, I didn't.
Q  Did you ever tell him that a Joann -- (spelling) J-o-a-n-n -- and a Leonard lived there, meaning at the Jumping Bull compound?
A  No, I didn't.
Q  Did you tell him that you all escaped to a place behind the dam where cars were supposed to pick you up?
A  No, I didn't.
Q  Did you tell him that the cars didn't show up the first night, that the cars showed up on the second night and picked you up?
A  No, I didn't.
Q  Did you tell him that the agents were shot eight times?
A  No, I didn't.
{3993}
Q  Did you tell him that you purposely set up your own warrant?
A  No, I didn't.
Q  In order to set up the FBI Agents?
A  No, I didn't.
Q  Did you tell him that in fact you did set up the agents by getting a warrant launched against you?
A  No, I didn't.
@MR. TAIKEFF:  Likewise, your Honor, I have two documents in this particular instance, the first one is a 302 which purports to be an interview of July 26, 1975, transcribed July 27, 1975, concerning Melvin White Wing. The second document is a statement signed by Melvin White Wing, and witnessed by Special Agents Hughes and Coward. It is dated August 3, 1975, if I failed to mention that; and I offer it in the same manner and on the same basis and with the same assumption as the preceding document.
THE COURT:  The exhibits will be received on the basis offered and as a part of the offer of proof.
MR. HULTMAN:  What is the number on those, counsel?
MR. TAIKEFF:  Nos. 210 and 211, respectively.
~Q  (By Mr. Taikeff) Now, I want you to consider the questions I just put to you concerning possible statements made to Melvin White Wing, and I want to ask you the same kind of questions I did before.
{3994}
Did you ever make any of those statements --
A  (Interrupting) No, I didn't.
Q  Let me finish the question because I have to touch certain technical bases with you.
Did you ever make any of those statements at a time or in a place where Melvin White Wing may have overheard them even if you weren't speaking directly to him?
A  No, I didn't.
Q  Did you ever make any of those statements to any person at any time in any place?
A  No, I didn't.
Q  Now, I questioned you about a person you knew as Ricky Walker?
A  Yes.
Q  And which the Government has stipulated is a person whose true name is Marvin Bragg. I am going to refer to him as Mr. Bragg, if I mention his name hereafter.
{3995}
Q  Did you admit or say to Mr. Bragg that you were down there at the time of the shooting in reference to the shooting of the agents on June 26th, 1975?
A  No, I didn't.
Q  Did you tell him that you were in on the ambush?
A  No, I didn't.
Q  Did you admit to him or say to him that you did some of the shooting at the federal agents?
A  No, I didn't.
Q  Did you ever say to him that if you found out that any person was giving evidence against you concerning these deaths or concerning the location of other people who were suspects that you would take a gun --
MR. TAIKEFF:  Your Honor, I trust Your Honor realizes I'm now paraphrasing the statement and not making this question up on my own.
Q  (By Mr. Taikeff) -- and blow their ass off?
A  No, I didn't.
Q  Did you ever tell him that you took part in the shooting?
A  No, I didn't.
MR. TAIKEFF:  Your Honor, I would seek to have marked and introduced for the purposes of the hearing a copy of a statement purportedly that of Marvin Bragg dated April 23, 1976 and witnessed on the same date by Agents Coward and Hughes with the same assumptions and for the same purpose.
{3996}
THE COURT:  The exhibits will be received on that basis.
MR. HULTMAN:  What is that number?
MR. TAIKEFF:  That's 212.
MR. HULTMAN:  Okay.
MR. TAIKEFF:  Now, Your Honor, I believe that that is the conclusion of the offer of proof. I don't know whether the Government -- excuse me one second, Your Honor. I'm being signaled by Mr. Lowe.
(Defense counsel conferred.)
MR. TAIKEFF:  Your Honor, I would ask the Court for the purposes of this aspect of the case to take judicial notice of the fact that on the very same indictment which is before Your Honor this defendant, he was at least the defendant within the indictment, was indicted along with Leonard Peltier, Robideau and Butler and charged with them in the premeditated murders of the agents, which indictment has been since dismissed on the application of the Government. And now --
MR. HULTMAN:  And which at the request of counsel the names were deleted as far as this trial was concerned as I recall; isn't that correct?
MR. TAIKEFF:  That's true, but it's probably the most irrelevant thing I've heard so far in this trial.
MR. HULTMAN:  Well, I just want the record to be, and, {3997} Your Honor, I object that counsel is making remarks of this kind. I have a right to object and make the clear and that's all I am attempting to do. What my motive may be I don't think is a part of any of the proceedings.
THE COURT:  The remark was unnecessary.
MR. TAIKEFF:  Your Honor, at this particular juncture -
THE COURT:  Just a moment. I haven't ruled on the request for, to take judicial notice.
MR. TAIKEFF:  I'm sorry.
Your Honor, I would add to the request of the Court unless the Court has the precise date in the Court record that Your Honor also take judicial notice of the fact that that dismissal took place approximately one month after the return of the verdict in the Butler-Robideau case.
THE COURT:  The Court takes judicial notice that on application of the defendants on March 7, 1977 it entered an order striking the names of Robert Eugene Robideau, Darelle Dean Butler and James Theodore Eagle from the heading of the indictment in this case.
Now, any proceeding that may have taken place prior to that this Court has no knowledge of it.
MR. TAIKEFF:  I believe the Court file is available to this Court. That is, the file of the other court.
THE COURT:  That's the point that I am making that I would not take judicial notice until I have examined the file {3998} unless the Government concedes that judicial notice may be taken.
MR. HULTMAN:  Your Honor, the Government does not, and for a lot of other reasons which I'll be glad to mention at this time. First of all that there's all kinds of speedy trial problems. Counsel seems to allude that the conclusion which he wishes to conclude, and then accuses me of whatever my remarks are being irrelevant or in bad motive. I want it made very clear on the record that speedy trial was a critical problem that had to do with the dismissal of that particular indictment at the time it was dismissed as well as many other reasons.
MR. TAIKEFF:  I didn't raise the question of speedy trial or any other basis for doing it. I merely asked Your Honor to take judicial notice that he was indicted along with Peltier and the other two, and that the indictment was dismissed as to him.
THE COURT:  Court will take judicial notice of anything that's in the record.
(Defense counsel conferred.)
MR. TAIKEFF:  I'd like to ask a question of this witness concerning the date of the dismissal if he knows, Your Honor.
THE COURT:  You may ask the question.
Q  (By Mr. Taikeff) Do you know when the indictment was {3999} dismissed against you?
A  September 8, 1976.
Q  And did you ever see the indictment that was returned against you?
A  Indictment?
Q  Yes. The piece of paper charging you with the murders?
A  Yes.
Q  And were there any other people named in that indictment?
A  Yes, there was.
Q  Who were the people named in that indictment?
A  Leonard Peltier, Dino Butler and Gene Robideau.
Q  Do you recall how many counts were in that indictment?
A  There was two counts.
Q  Two counts did you say?
A  Yes.
Q  And do you remember which each count charged?
A  One was for -- each count was for killing the two FBI agents.
Q  On what date?
A  On June 26th.
MR. TAIKEFF:  Your Honor, before I address myself further to the Court I think it appropriate to ask whether the Government wishes to make any inquiry on this offer of proof.
MR. HULTMAN:  I do. I'm trying to find a copy of 212 {4000} so I'll have something to refer to. If the Court will give me just a moment.
THE COURT:  I assume the Clerk has it.
MR. HULTMAN:  No. I have -- counsel's been marked here. This is the actual exhibit. It is in evidence. Can I have all of the documents that you just put into evidence so I'll refer to the specific ones?
MR. TAIKEFF:  Yes. I'll give them to you right now.
MR. HULTMAN:  I'll just use the ones that -- (No further response.)
THE COURT:  I think before we proceed I will declare a ten minute recess. Court will recess until 11:00 o'clock.
(Recess taken.)
THE COURT:  Mr. Hultman, you may proceed.
MR. HULTMAN:  Yes.
 CROSS-EXAMINATION
BY MR. HULTMAN:
Q  May it please the Court. Mr. Eagle, I've never met you at any time, have I?
A  That's right.
Q  I'm Evan Hultman, the prosecutor in this particular case, representing the United States government.
Is it fair for me to conclude that until here in this courtroom today just a few minutes ago that you have never at any time talked to anyone from the federal government about the events that may or may not have taken place that have {4001} concerned us here relative to the death of two FBI agents?
MR. TAIKEFF:  I object to the form of the question as being misleading, unless counsel means specifically attorneys as opposed to attorneys or FBI agents.
MR. HULTMAN:  Okay. I'll get to that.
Q  (By Mr. Hultman) First of all have you ever talked to any attorney at all of any kind from the Government about any of the things that may or may not have happened concerning the death of two FBI agents?
A  Two FBI agents, I talked to them about it.
Q  Okay. First of all you never talked to any Government lawyer of any kind, have you?
A  No, I haven't.
Q  In fact you've refused to, have you not?
A  Yes, I did.
Q  All right. Now, let us then go to another category of people. I am correct, am I not, in response to the questions that were asked you by counsel that you likewise have never told any representative of the Government, to-wit:  the FBI or anyone else who is an agent of the Government that you knew anything about anything that took place with reference to the deaths of the two FBI agents?
A  That's correct.
Q  All right. So what I'm trying to conclude, if I'm fair and you correct me if what I say is not correct, do you understand?
{4002}
A  Yes.
Q  All right. So is it fair for me then to conclude that you have never made any statements at any time, anywhere to anybody from the Government concerning any part that you may or may not have played in the deaths of the two agents, or that anybody else may or may not have played in the deaths of the two agents? You just plain haven't discussed that matter with anybody from the Government, is that a fair conclusion?
A  Yes.
Q  All right. You do indicate, though, that there has been at least one or maybe two occasions when somebody came to talk to you, but you refused to talk to them about it, is that fair for me to conclude?
A  Yes, it is.
Q  All right, So that what we've heard here for the first time as far as anybody from the Government, isn't that fair for me to conclude as far as anything you've ever said anywhere, any time to anybody from the Government, today in the courtroom is the first time you've ever talked to anybody from the Government with the Government present about anything having to do or not to do with the death of the two agents; isn't that fair for me to conclude?
A  I think I talked to my attorneys and I, we've sat down with Mr., the gentleman sitting right on your left hand side.
Q  Sometime with your attorney?
{4003}
A  Yes.
Q  Sitting. You did talk with the presence of Mr. Sikma, but it was not with reference to anything that you saw or observed or did or anybody else did. It had to do with some proceedings, did it not?
A  Yes, sir.
Q  All right, okay. Now, with that base then I want to ask you some questions. First of all you indicated that there was a time when on direct examination when a Mr. Adams, an Agent Adams talked to you; is that correct; do you remember that?
A  Yes, it is.
Q  All right. Now, if I were to tell you that the date of that was August 29th would you have any reason to doubt it in any way if I represented that to you?
A  No, I wouldn't doubt it.
Q  All right. Now, was that the only time and the only occasion when you talked to Mr. Adams when you were in Mr. Adams presence that you know of?
A  Yes.
Q  All right. So there wasn't any other time that Mr. Adams to your knowledge was in your presence other than this one time?
A  Yes.
Q  All right. Now, do you recall ever asking specifically for the FBI during the time following the 26th of June where you yourself asked for somebody from the FBI to come and see you? {4004} Not they coming to see you because they wanted to, but you asking them to come to see you for some reason?
A  No, I didn't.
Q  Do you ever remember asking anybody to come see you for the sole purpose of the fact that you wanted it made known that you didn't want a particular lawyer representing you any longer? Do you remember anything about that?
A  Yes. I remember that.
Q  All right. Would you tell us what it is that you basically remember about that event, and this was sometime during July or August, was it not?
A  Yes, sir. Yes, it was.
Q  It's during the time frame that we've been talking about here. And if I were to tell you that it was on the 21st of August would you have any reason to doubt that that was the time?
A  I wouldn't doubt it.
Q  All right. Now, would you tell us what it was that happened on that occasion?
A  Well, it started in the early morning and they, two Rapid City police officers, brought in a guy in our cell and they got into a fight. And both them cops tear gassed that guy and left him laying on the floor. And that room didn't have very good ventilation, so everyone was trying to get out of there.
So then I asked the jailer if he could move me and he {4005} said well, he couldn't do it, he'd have to talk to a U.S. marshal. So I asked him, well, I said, "Could you do it?" And he said, "Yeah, I'll see what I can do." And he left and he never did answer me.
And then later on that night, I think it shows on that evening is when Gary Adams and another FBI agent come in.
Q  Well, are you really sure? Again, are you really sure that that's who it was that came at that time, and I'm not trying to put words in your mouth, I just want to make certain that you say what you definitely remember and if you don't specifically remember that you make it likewise clear.
Do you remember two agents coming and you pointing out to them that the only purpose you wanted to talk with them was to tell them that you wanted a certain lawyer's name taken off the approved visitors list for you? Do you remember that at all?
A  No, not really.
Q  You don't remember it, is that what you are telling me? You're not saying it didn't happen?
A  What I'm saying was ever since this all happened I've argued with many attorneys and I just can't really, you know, make out the right one, which one.
Q  All right. You wouldn't argue with me if I indicated to you that two FBI agents on the 21st of August did come to you {4006} and that was the sole subject of the conversation, and that there was no discussion of any kind about the events that may or may not happen on the 26th of June?
A  But the only FBI agents that talked with me were the two. That was Gary Adams, and there was another one, and they didn't you know, really talk about the attorney. More they got into harassing me.
Q  Okay. We've talked about that occasion. Counsel asked you about that occasion. I'm asking you about an occasion approximately a week or a few days before. The event that you've talked about with Mr. Adams. I'm asking you about another time, about a week before. Do you remember at all having talked to anybody from the FBI at your request and the only discussion being about whether or not a certain lawyer was to be taken off the approved visitors list to see you? Do you remember anything about that?
{4007}
A  Well, yes. I do recall one.
Q  There was one such occasion that you recall?
A  No. About taking an attorney off my visiting list.
Q  Right.
A  But I don't recall the FBI.
Q  You don't recall whether or not the FBI was there. Your testimony is you don't recall, you're not saying it did not happen?
A  I'm saying I ain't certain. I ain't, you know, I ain't.
Q  You aren't certain?
A  It might have happened, it might have --
Q  That's all I want to make clear, so we understand what your answers are very truthfully and very honestly. All right.
Now there wasn't any other occasion to your knowledge when the FBI did discuss in any way with you other than the incident that you're referring to, as you recall, with Mr. Adams, anything about the events concerning the two FBI --
A  Other than that; yes.
Q  That you remember without any question, isn't that true?
A  Yes.
Q  That that's the only time you recall anything about an FBI having any discussion with you in any way about the killing of the two FBI agents?
A  On the morning that they handed me the warrant, there was two FBI agents there and they asked me if I wanted to talk about {4008} it and I told them no.
Q  All right. All right.
Other than those two occasions --
MR. TAIKEFF:  May we have a clarification. Was that later occasion when they came to arrest him and charge him?
THE WITNESS:  That was on the 27th of July.
Q  (By Mr. Hultman) On the 27th. They didn't discuss with you in any way at that time anything about the case, is that right?
A  They just asked me if I wanted to talk about it.
Q  And you told them no and that was the end of it, is that right?
A  Yes.
Q  So this in a nutshell then is the totality as you're concerning any discussions at any time in any way with the FBI, is that fair for me to conclude, about this event here or anything that may or may not have --
A  I really didn't understand what you said.
Q  You have told us that, one, there was an occasion when the FBI was in your presence and one of those agents was Gary Adams.
A  Yes, he was.
Q  Then you've told us that they served a warrant on you on a given date and you had no discussion because of the fact you told them you didn't want any discussion.
{4009}
A  That's right.
Q  And that ended it right then and there.
Other than those times and possibly another time which you don't remember, you indicate, has there been any other time that the FBI has asked you anything about this particular event that you can recall?
A  No. I cannot.
Q  Are you fairly sure about that?
A  No. I ain't very sure about it.
Q  All right. Very good.
Let us talk then about sometimes that you were places with relationship to other people other than the FBI. Do you understand?
All right. Tell us approximately where you went from the time you were arrested on the day or days, whenever it was, after the shooting of the FBI agents. You indicated at sometime after the 26th of June that you were arrested. Do you remember about when that was?
A  Yes. It was in July.
Q  And that's the time that you talked with Counsel, is that right?
A  Yes.
Q  Now did you go to the jail at that particular time then?
A  Yes.
MR. TAIKEFF:  Your Honor, I'm afraid that that was not {4010} the testimony.
MR. HULTMAN:  Whatever it is, that's all I'm trying to get.
MR. TAIKEFF:  I'd like to state it privately to Mr. Hultman so I don't signal the witness. May I have a moment to do that? I think he's misunderstood the testimony.
THE COURT:  You may.
(Counsel confer.)
Q  (By Mr. Hultman) The day that you went to court for the first time, which Counsel has indicated to me was around, if not exactly, the 9th of July, do you remember whether or not you went to jail at that time?
A  Yes, I did.
Q  Did you stay very long?
A  In jail? I'd been there for quite awhile.
Q  And you did not get back out on bond at that time, is that right?
A  No.
MR. HULTMAN:  Is that a fact, Counsel?
MR. TAIKEFF:  My understanding since July 9th he's been continuously incarcerated.
MR. HULTMAN:  Very good.
Q  (By Mr. Hultman) Now approximately how long a period after July 9 were you incarcerated in, would it be the Pennington County Jail?
{4011}
A  Yes, sir.
Q  About how long a time from the 9th of July then were you there.
A  I was there until December.
Q  Sometime in December?
A  Yes.
Q  And that's 1975?
A  Yes, it is.
Q  Then where did you go after December, if you recall, just approximately?
A  They transferred me to the South Dakota State Penitentiary.
Q  All right.
I just wanted to establish. Were you in the Pennington County Jail only that one time and one period of time?
A  No. I was brought back in the penitentiary from Sioux Falls.
Q  That was at a later time, is that right?
A  Yes, sir.
Q  Let us talk a little bit. I have just a few questions I want to ask you about the time that Counsel has asked you about that you were in the Pennington County Jail. Do you remember somebody by the name of Clifford?
A  Yes, I do.
Q  Did you know the person before that time?
A  Yes.
{4012}
Q  How long approximately had you known him?
A  About a year.
Q  And would you tell us just a little bit about him, how you knew him and who he was.
A  He wasn't the best of friends. I really didn't, you know, care to talk to him.
Q  But you had known him before?
A  Yes, I did.
Q  Is he from the Pine Ridge area?
A  Yes, he is.
Q  Is he Indian?
A  Yes. Part.
Q  By the way, I didn't ask a question, were you a member of AIM during this period of time that we've talked about?
A  I sympathize with what they do.
Q  Now did you have conversations with Clifford during the time that you were in the jail with him?
A  No, I haven't. Like I said, I didn't get along with him on the street so I didn't talk to him in jail.
Q  Now there was a man named High Bull there, Marion High Bull. Do you recognize that by the questions by Counsel?
A  Yes, I did.
Q  Had you known him before?
A  Yes, I did.
Q  How long approximately had you known him?
{4013}
A  I guess about four or five months.
Q  And was he from the Pine Ridge area, too?
A  Yes, he is.
Q  Melvin White Wing, did you know him before?
A  No, I haven't.
Q  But that was the first time then that you had met him while you were in the Pennington County Jail?
A  Yes, it was.
Q  And Rickey Walker, had you met him before?
A  No, I haven't.
Q  Or Melvin Bragg it's been referred. You hadn't met him before?
A  I met him before in the County Jail but not before. What I'm saying, I only got to know him while I was in the county jail.
Q  When was it approximately that you had met him for the first time?
A  I think it was about one or two weeks after I was in there. He was brought in.
Q  Was this after the 26th of June, after the events concerning?
A  Yes, it was.
Q  Now I'm also going to ask you whether or not you knew Leonard Peltier.
A  Not personally.
{4014}
Q  Had you seen him on occasion?
A  No. I never, I mostly read about him in the newspapers and things but, you know, up to about a week I'd just known him personally.
Q  Up to about a week?
A  Ever since I was brought from Grand Forks into Clay County.
Q  When with relationship to the death of the two FBI agents had you ever met or known the defendant up to that time?
A  No, I didn't.
Q  Oh. All right. That's all I'm trying to establish. All right.
Now what about the people who, other people who live in the Jumping Bull area, did you know the Jumping Bulls?
A  Yes, I did.
Q  Did you know any of the people that were living down in tent city?
A  No, I didn't.
Q  Now on the 26th of June were you aware that, I believe you indicated that on direct examination that you weren't aware there was a warrant outstanding for you.
A  No. I wasn't aware of it.
Q  For the events that had happened a day or two before.
A  No. I wasn't aware of it.
Q  You later learned that?
A  Yes, I did.
{4015}
Q  Do you know that agents had been at your grandmother's house seeking you and indicating they had a warrant for your arrest?
A  From my understanding they only wanted to talk to me.
Q  Pardon?
A  From my understanding they only wanted to speak to me.
Q  I'm not sure --
A  They said they only wanted to talk to me about an incident. That was from my understanding from what I overheard.
Q  What I'm asking was did you know that they had been at your grandmother's house?
A  Well --
Q  Before the 26th.
A  No. I didn't know they were there.
Q  Where were you on the 25th and on the 26th?
A  The 25th I was at my mother's and on the 26th I was in my grandmother's house.
Q  Where is your mother's house?
A  It's in the same, around the same area as my grandmother's house. In Pine Ridge.
Q  That's in Pine Ridge?
A  Yes, it is.
Q  And on the 26th you were at your grandmother's house, is that right?
A  Yes, I was.
{4016}
Q  Were you during the 25th or the 26th ever at Wanda Sears'?
A  No, I wasn't.
Q  Do you know where Wanda Sears lives?
A  Yes, I do.
Q  Were you at Jumping Bull's on the 25th or the 26th?
A  No, I wasn't.
Q  You know where Jumping Bulls live, right?
A  Yes, I do.
Q  And you knew at that time, did you not?
A  At what time?
Q  Back on the 25th and 26th.
A  Yes, I did.
Q  That's the time I'm talking about, 25th of June, 1975, 26th of June, 1975.
A  Yes, I did.
Q  All right.
Now so that there's clearly no misunderstanding at all, did you have some conversation, I just want to talk about being in the presence of, not what the conversations may or may not have been but just whether or not you had any discussion of any kind in the jail during the periods of the months of July and possibly August of 1975. Did you have any discussions of any kind with Marion High Bull?
A  Yes. We talked but not, you know, not about June 26th.
Q  Well, now, don't jump ahead of me. Just answer what I asked {4017} you, okay?
I may get to some further questions.
Did you have some discussions there during the time you were there with Melvin White Wing?
A  No, I didn't.
Q  No discussions of any kind that you recall?
A  No.
Q  What about Marvin Bragg, did you have any discussions of any kind with him?
A  Yes, we did.
Q  And did you have any discussion of any kind with Clifford?
A  No, I didn't.
Q  Now at the time you were there, is it fair for me to conclude, Jimmy, that the shooting of the two FBI agents was something that was very much in the news at Pine Ridge?
A  Yes, it was.
Q  And it was something which was very much a subject of discussion, was it not?
A  Well, at one -- yes, it was.
Q  Because of the event itself, an event of this kind. You had never heard of anything happen like this before, had you?
A  No, I haven't.
Q  So is it fair for me to conclude that in the jail it was a subject of discussion likewise?
{4018}
A  Well, at one time; yes.
Q  All right.
Now I want to refer now to what has been introduced here as Defendant's Exhibits 207, 208, 209, 10, 11 and 12 and I want to ask you just a few questions about it.
I want to make on the record a point at this time. In referring to specific documents, and I don't remember the exact ones at this time but I think I will recall as I get into each one of them, but the general questioning of Counsel and the method was that he referred to you and others. Do you remember when he asked you a lot of questions about some very specific things and he said you and others and you said, you responded that, "I didn't say that." Do you remember all those lines of long questions?
A  Yes.
Q  He asked you.
A  Yes, I do.
Q  Now I don't want to ask you questions about you and others, I want to ask about questions that have to do with maybe the telling of a story by you, not saying that I, Jimmy Eagle was there and saw these things but somebody maybe in conversation with Jimmy Eagle and Jimmy Eagle telling a story about things that he may have heard on the radio or may have heard in conversation or knowing the people because it was a subject of conversation. Do you understand the difference of what I'm trying {4019} to get at here? I'm not going to ask you about what you yourself said, you saw, but I'm going to ask you about some statements about maybe a story that somebody is telling about some events of some kind. Do you understand the difference?
A  Yes. I understand.
Q  Now Counsel has specifically referred and has introduced here as an Exhibit, 211, a statement by Melvin Bragg --
MR. HULTMAN:  And I would on the record, Your Honor, make note that within that given document there is only one place, in fact it is clearly differentiated from everything else, it says in it where it refers to Eagle saying that Eagle said. In fact, it's drawn out very carefully in the document where it says Eagle said, so I want to separate from the rest of the document that is in evidence at this particular time.
Q  (By Mr. Hultman) Now you responded with reference to Exhibit 211 that you didn't say these things, isn't that the way your response was?
A  Yes.
Q  In terms that you didn't say that you were down there, is that for me to conclude?
A  Yes.
Q  Because you've already said you weren't there, isn't that fair?
A  That's right.
{4020}
Q  And that is your testimony, that you weren't there so you don't know what happened. You yourself on that day as far as you being there and viewing the very events, is that fair for me to conclude?
A  Yes.
Q  Now, however, you did learn from the news media, from other discussions and so forth a lot of things that were being said as to what did happen down there allegedly, isn't that fair for me to conclude?
A  Not exactly the main, the main reason, you know. The only way people got that kind of news in there was when drunks was brought in there and, you know, they'd be talking about it and that's how the rumors start.
Q  Well, from the 26th of June, Jimmy, it's fair for me to conclude, isn't it, until the 9th of July that you had some discussions and learned some things and heard some things, whether they're true or not, but things that had to do with what happened down there when the two FBI agents got killed?
MR. TAIKEFF:  Object to the form of the question because it includes a number of activities and the witness could be confused wanting to answer yes to two of them but not to the third.
MR. HULTMAN:  I'll rephrase my question. I agree, Counsel.
Q  (By Mr. Hultman) You specifically responded to me with {4021} reference to my last question that the only time that you learned something in the jail is possibly when a drunk came in.
A  Yes.
Q  Now I want to ask you, at a time earlier than when you were in the jail, from the 26th of June until the time, be it approximately the 9th of July, you were not incarcerated, were you?
A  No, I wasn't.
Q  And you were living, were you not, on the Pine Ridge Reservation?
A  No, I wasn't.
Q  Where were you during that time?
A  I was in Rapid City.
Q  When was it after -- you said on the 26th you were at your --
A  Grandmother's.
Q  -- grandmother's. The 25th at your mother's. When was it then that you left Pine Ridge approximately?
A  It was the night of the 26th.
Q  The night of the 26th. All right.
Did you stay then in Rapid City?
A  Yes, I did.
Q  Until the 9th.
Well, the matter was also a matter which was generally discussed in Rapid City, too, was it not, the event itself?
{4022}
A  Yes. The event itself.
Q  And did you have, and I'm not referring to a specific conversation now or to specific things that you learned, but had occasions during that time to read the newspapers, watch TV and discuss what was being said about the event on the 26th, did you not?
A  We didn't discuss the event.
Q  I'm not trying to, I'm only trying to find out whether or not it's a fair conclusion that you did learn at least some things that allegedly happened on the 26th, whether they're true or not, that's not what I'm trying to get at. All I'm trying to establish is whether or not the subject of the deaths of the two agents and how it happened, may or may not have happened, was a matter of general discussion and publicity during this time we're now talking about, was it not?
A  It was a lot of publicity but I didn't really discuss it with anybody.
Q  You're saying you didn't discuss it with anybody?
A  No, I didn't.
{4023}
Q  All right. Now, you were in fact prior to the 4th of August which is I believe the record will show the date of a preliminary hearing, of which a record under oath was there made, you were in fact incarcerated with Dewey Clifford, were you, in the Pennington County jail?
A  Yes.
Q  You were actually there?
A  Yes.
Q  Where with relationship to him did you have access to where you could be in the same areas at the same time?
A  With Clifford, yes, he was in the same cell.
Q  And you were in a position where you could have heard conversations that he may have had or he overheard conversations that you may have had, isn't that correct?
A  Well, I really didn't care what he said.
Q  You didn't care what Clifford may or may not have said?
A  No, I didn't.
Q  What I am trying to establish is the fact that you were in his presence, the two of you along with some other people?
A  Yes.
Q  And conversations did take place during those times, isn't that clear?
A  I don't know. I really couldn't tell. I don't know.
Q  What I am saying, I am trying to establish, you were not isolated, you were not in a place where nobody could talk to you {4024} or you talk to anybody else?
A  No.
Q  This is the Pennington County jail?
A  Yes.
Q  Now, also in looking at Defendant's Exhibit 210, I find that there is only one reference in that whole exhibit, not to Eagle and the others, but only one specific reference to Eagle where Eagle stated something specifically concerning himself, and I want to ask you about that.
MR. TAIKEFF:  Your Honor, I object on the grounds of competence. The witness couldn't possibly know what Mr. Hultman is seeing when Mr. Hultman looks at the document so he couldn't ask him about what he is seeing.
MR. HULTMAN:  These are the questions, counsel, which you asked him, and that's with reference to Exhibit 210. Those are the specific items I am asking about.
THE COURT:  How much further is it going to be necessary to go into the testimony of this witness?
MR. HULTMAN:  Very little, your Honor, very little.
Q  (By Mr. Hultman) Is it fair for me to conclude that from discussions that -- and conversations that you, Jimmy Eagle, were in, just in conversation about the events on the 26th of June concerning two FBI Agents, that possibly someone who is in the conversation or listening to the conversation could have concluded from what you said that you were there?
{4025}
A  I never had -- that kind of conversation.
MR. TAIKEFF:  I object to the question.
THE COURT:  It is on an offer of proof.
MR. HULTMAN:  All right.
Q  (By Mr. Hultman) Were you personally ever down to Tent City, the Tent City area on the Jumping Bull property?
A  No, I wasn't.
MR. HULTMAN:  I have no further questions.
MR. TAIKEFF:  Your Honor, I have just three points I want to inquire about on redirect.
THE COURT:  Very well.
 REDIRECT EXAMINATION
By MR. TAIKEFF:
Q  I think you testified that when Agent Gary Adams spoke to you about the fact that he or they, meaning the FBI, knew that you weren't there but that if you didn't cooperate, you would be indicted for murder, you said that you believed that occurred in August, do you recall that?
A  Yes.
Q  And I think I asked you to reconsider the possibility that it may have been earlier and you said, "No, I am pretty sure it is in August"?
A  That's right.
Q  Do you recall that -- all right.
Now, when Gary Adams spoke to you, as you have testified, {4026} were you already charged with those murders?
A  Well, they -- just first degree murder, just one count.
Q  You were charged with first degree murder?
A  Yes.
Q  In connection with this case?
A  Yes, I was.
Q  You had already had a preliminary hearing?
A  Yes, I did.
Q  O.k., so this was after the preliminary hearing?
A  Yes, it was.
Q  Now, the person you said you were not the best of friends with and you didn't get along with him on the street, was that Clifford?
A  Yes, it was.
Q  For how long had you known him?
A  I have known him for about a year or two.
Q  And what kinds of difficulties did you have with him?
A  Well, I don't know, just two people, some people I can't get along with and he was one of them.
Q  Did you ever have any fights, or just arguments?
A  Arguments.
Q  Now, Mr. Hultman called your attention to the fact, and you agreed that the subject of the deaths of the agents, at least for a certain period of time, was a big topic of discussion in the jail, is that correct?
{4027}
A  Not --
Q  (Interrupting) Amongst all the people in the jail without making any specific reference to you?
A  Yes.
Q  O.k. Now, what did your lawyer tell you about that subject on July 9th before you went into the jail?
A  Well, when I turned myself in, he told me, he said, he said, "You know, they are trying to connect you with that shooting in Oglala, and it is my advice for you, you know, just keep your mouth shut," and he said, "Don't pay attention to nobody if they try to bring it up. It is likely they will put a cop in your cell with you."
MR. TAIKEFF:  Could I have just one moment, your Honor?
THE COURT:  You may.
(Counsel confer.)
MR. TAIKEFF:  I have no further questions of this particular witness, your Honor.
MR. HULTMAN:  No further questions, your Honor.
THE COURT:  You may step down.
(Witness excused.)
MR. TAIKEFF:  May I assume that the Government has no questions on cross examination outside the scope of the hearing?
MR. HULTMAN:  The Government, your Honor, has -- but {4028} I do want the witness to remain available in case we get into some other collateral matters.
MR. TAIKEFF:  Your Honor, I would like to address the Court, if I may, on this particular subject.
At the outset of this trial, the Government made a motion in limine, and to use a catchword, although not necessarily to attempt to quote the Government's papers, the Government asked the Court to prohibit the defense from introducing any evidence or attempting to introduce any evidence on the general subject of the FBI counter- intelligence program sometimes referred to as COINTELLPRO, and basically took the position that it is not appropriate in this particular case to litigate those aspects of the Watergate era in which the Federal Bureau of Investigation may have been involved.
There has been no attempt on the part of the defense to bring up those subjects in any way before this Court. The Government did not address itself to the next subject, and at the same time the defense has not addressed itself to that subject, except at this particular time in arguing, in the absence of the jury; but there was rather serious misconduct on the part of the Federal Bureau of Investigation in connection with the trial held in St. Paul before Judge Nichol, where the Defendants, Means and Banks, were on trial; and in spite of the fact that the Government did {4029} not move in limine on that subject and in spite of the fact that one could make a rational argument that the conduct of the FBI with respect to their attempt to convict those two American Indian Movement leaders, which was so serious that Judge Nichol dismissed the indictment in the middle of the trial and wrote a lengthy opinion which is reported in the Federal Supp.; and one could further argue that if that's the attitude of the FBI towards those two AIM leaders, there is surely relevance to show that at any trial of any American Indian Movement leader, we have not made any such attempt to do that. What we have told the jury in opening and what we have on appropriate occasions in the absence of the jury advised your Honor, it was our intention, was to show conduct on the part of the FBI that should make the jury very concerned about the evidence in this case because those activities concern either the evidence which was actually adduced in this case or evidence which was being collected or, as the case may be, manufactured for the trial of this case at a time when it was not known that there would be one trial for Butler and Robideau, another trial for Peltier, and a dismissal of the indictment for Jimmy Eagle.
Now, it is that narrow subject, not Watergate, no COINTELLPRO, not the FBI misconduct with respect to Means and Banks which the defense is trying to introduce into {4030} this case.
Now, your Honor apparently has ruled that if the FBI induced certain people to say that somebody who was not present was (a) present at the crime scene, and (b) participated in the events including shooting at the agents, and (c) then escaped with those who are known to have left Tent City in the latter part of the afternoon, that that is relevant to the jury's deliberations on the entire credibility of the prosecution's case against this Defendant.
The mere fact, your Honor, that the Government chose not to introduce evidence through the mouths of the three or four informants who purportedly heard Jimmy Eagle confessing his guilt, or discussing his activities which would be tantamount to a confession of guilt, say for some legal defense he might have to explain his conduct, is surely relevant as to what the Federal Bureau of Investigation has done overall in this particular case in an attempt to convict someone whose presence is far clearer than the presence of Jimmy Eagle.
I think the Government, although it hasn't conceded it as such, acknowledges that Jimmy Eagle was not there that day. Am I incorrect about that, Mr. Hultman?
MR. HULTMAN:  I will meet that issue when you get done, counsel, I will meet it.
{4031}
MR. TAIKEFF:  All right.
Now, thus far in this case we have heard testimony from a Special Agent of the Federal Bureau of Investigation of a sighting on June 26th, 1975, that sighting having been made through his telescopic sight; and he says he saw Leonard Peltier.
He further testified that he wrote a short 302 which he claims incorrectly stated that the date of interview was June 28th, by explaining that he knows for sure that that date has to be wrong because he only saw Marvin Stoldt, who also purportedly made an identification at a long distance on two occasions, June 26th, and early in September, which we now know to be September 4th; and so he concluded that the thing that said interviewed on June 28th had to be a typographical error or some kind of administrative error, and further went on to say that he remembered a conversation with Stoldt in the car in which Stoldt said he saw Jimmy Eagle.
We also have had testimony in this case -- and it makes no difference who called the witness, and it makes no difference who called the witness, and it makes no difference whether the testimony came in on cross or direct -- we have heard in this courtroom in this trial Stoldt, who was a former BIA police officer, and although technically called by the defense, still presumably a {4032} person who would tell what he has to say whether he was called by the prosecution or the defense, and asked a particular set of questions, that he made a sighting on June 26th, 1975, and saw Jimmy Eagle; and that by September 4, 1975, he had concluded that he was positive that it was Jimmy Eagle.
Now, that evidence, like any other evidence that tends to place either the Defendant there or tends to corroborate someone else's evidence that he was there, because surely if one agent saw Peltier and somebody else saw both Peltier and Eagle, the second person's testimony corroborates the testimony of the first person, so any attack upon the absence or presence or the possible sighting of Eagle is relevant; and that raises the question, if there is a serious one about whether it was a mistake, inadvertence or something done intentionally, as to whether or not other conduct in this case, particularly with respect to Jimmy Eagle, is relevant on the question of whether it was a mistake or whether it was an intentional effort to place somebody there who was not in fact there but for the purposes of the Government's theory had to be there.
Now, this witness says (a), "I wasn't there," (b), "My lawyer warned me that they would try to put me into that prosecution," and (c), he told me, "Don't speak with anyone in the jail about this subject. There may be a {4033} cop in your cell with you."
He further claims that he accepted that advice and he acted accordingly. He did not discuss the events of June 26th, whether seen by himself or whether reported in the newspapers, with anybody.
There is, as I trust your Honor can infer from the documents which have been referred to, at least one person and in fact there are four people who claim that in the Pennington County jail in the latter part of July, 1975, prior to the time he was arrested on July 27, that Jimmy Eagle made statements concerning the events of that particular day, where he refers to himself -- your Honor need only read the documents and see that they clearly reflect a statement by a person -- that Jimmy Eagle was reporting events that he both witnessed and participated in, so that the word "they" in that context, purportedly coming out of the mouth of Jimmy Eagle, was part and parcel of his alleged narrative of the events of June 26th, 1975.
{4034}
It is the position of the defense that since he never spoke to anybody it could not be that four different people have him confessing guilt; that they didn't just suddenly materialize independently by some sort of spontaneous birth. There had to be a father and a mother. Except for paramecia we do not know anything that comes into existence without a mother and a father. And those stories had a mother and a father and we suggest that the father was the FBI and that those witnesses are the mothers. And it is relevant to prove the legitimacy and the propriety of the body of evidence which has been adduced against this particular person.
THE COURT:  Is it not likely that this witness, Jimmy Eagle, did in fact make those statements to those people?
MR. TAIKEFF:  If Your Honor's asking me whether or not it is possible, a fact, I would say yes.
THE COURT:  Is it not the responsibility of an investigative agency to investigate any leads that it might have in preparing a case for prosecution?
MR. TAIKEFF:  Your Honor, I am not saying that the FBI has never been approached by a liar or by a person who just makes up a story.
THE COURT:  Excuse me for interrupting. But I am not defending the FBI. I am simply explaining the basis of the Court's ruling.
I have ruled that it, the evidence which you propose to {4035} offer on this matter was irrelevant. Now, you may continue to make your record but --
MR. TAIKEFF:  Your Honor, please do not believe that anything I am saying constitutes a defense by Your Honor individually of the FBI. I am trying to persuade Your Honor in my role as a lawyer, and Your Honor's role as a lawyer who has been elevated to the bench, and who is presiding over this trial, that Your Honor's ruling is either wrong or that Your Honor should exercise his discretion in favor of permitting the testimony in because amongst other things of a thing Your Honor just posed to counsel a question, Your Honor asked counsel isn't it possible, and I'm translating Your Honor's question, I don't mean to quote it, that Jimmy Eagle isn't telling us the truth. Well, Your Honor, it's possible because most things are possible when you consider human conduct.
The question is, who must determine that. Not Your Honor and not counsel for either the Government or the defense but the jury. Now, the question is it too attenuated, or is it too collateral, a word favored by judges and other lawyers, to allow such testimony to come in. Well, Your Honor, what we attempted to prove in addition to making our offer of proof is the nature and the quality of what it is that these people purportedly said to the agents who wrote up the statements which they eventually signed. Your Honor has to {4036} make a threshold determination, not of what the ultimate fact is, but whether something is believable within the realm of possibility.
If Your Honor finds that something is unbelievable as a matter of law Your Honor must not allow the jury to determine which is the facts because they'd have to speculate. It just is not within the realm of possibility.
But I offer to Your Honor this very significant possibility, and as a basis for asking the jury to make the determination. If Your Honor reads those statements, they're more comprehensible than what was brought out in the examination. The examination touched I think the principal highlights. Your Honor will see that there is stuff in there that no stretch of the imagination could allow any person to believe that even a confessing participant, even a confessing eyewitness or perhaps the word confessing isn't appropriate, even a talkative eyewitness or a confessing participant would never say. There are some things that human experience dictates could not really have happened.
Let us assume that Jimmy Eagle was there, and there's substantial proof that he wasn't there and the Government doesn't seem to be contending that he is or had been there, would it be within the realm of human experience for such a person to recount the events and bother to articulate some of the irrelevancies to what he would be saying such as describing {4037} the Indian male who was shot and killed as the guy who was wearing the FBI jacket with FBI on the back? What difference would it make to a person who wasn't there that the guy who was killed was wearing the jacket, the army-type jacket with the FBI insignia on it? If I was speaking to Your Honor, and Your Honor and I had shared an experience, of course I would make reference to things that would trigger Your Honor's memory. And I'd say, "Remember the guy with the FBI jacket on?" But if I were relating to Your Honor a long, complicated episode I could not possibly, unless I was some sort of extremely compulsive individual, bother to describe a significant event, namely the death of a person by pointing out that he was the guy who was wearing the FBI jacket that had the insignia on it.
Likewise, Your Honor, it is beyond the realm of human experience to believe that as a matter of law that a person would make a confession of his participation and bother to detail the fact that certain things were taken out of the vehicle. It is just not possible to believe that that occurred because if someone were talking about those events he would have no motivation, he would have no reason to say to the people he was trying to impress this minutiae of detail, that the agent stepped out and opened the trunk of the car and raised his gun and started shooting it and then he was shot down. Your Honor, that's right out of the script of this {4038} case. That is as to that and several other things in those purported admissions. That is right out of the testimony of the Government witnesses as to what happened. That is the FBI scenario for this case.
Now, Your Honor has to exercise his discretion in determining what is relevant and what is not relevant, what is collateral and what is not collateral. Pursuant to Rule 401 relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Well, Your Honor, the fact that it is of consequence in this case is whether or not the FBI manufactured evidence, whether they suborned perjury, whether they did wrong. In this particular case a witness has testified to a certain crucial fact. Another witness will testify that the FBI threatened him in order to make him testify to that same fact.
In this particular case we have shown on the hearing in the absence of the jury that a person who was not there, we know the jury has to determine whether he was there, but at this point I believe Your Honor is obligated to view the evidence in a light most favorable to the defendant just as the type or ruling under Rule 29 Your Honor does likewise to the Government. The jury could believe that he wasn't there after all that they heard from the agent who made the sighting. {4039} The agent, the BIA officer who made a sighting. The witness we called concerning the telescopic sight. The jury could make that finding. It is not beyond the realm of possibility that they will find that Jimmy Eagle was not there.
The Government's effort in finding four separate people who were willing to testify that Jimmy Eagle made such statements which he has categorically and flatly denied making will help prove a consequential point, namely that the FBI manufactured evidence here. This is a case in which four people were indicted. Jimmy Eagle was originally one of the people. The case to be brought initially was viewed as a case to be brought against all four of them together. The fact that Jimmy Eagle was not on trial is probably the most significant reason why the Government didn't adduce the evidence of his admissions.
Surely if Jimmy Eagle were on trial in this case we cannot believe with absolute certainty that the Government would have purposely and knowing not called any one of those four people. So they shouldn't benefit from the fact that finally they got some religion and they dismissed the indictment. When I use the word "finally" I didn't mean to imply anything with respect to counsel because the record is quite clear. There has never been any suggestion about any participation in any of the alleged wrongdoing by Mr. Hultman. But the Government speaking in the broadest sense finally, {4040} finally did what it should have originally done and that is seeing to it that Jimmy Eagle did not stand accused of this crimes and dismissed that indictment in August of last year.
But the fact that the Government came forward and dismissed that indictment and did not resist the motion which was formally made by counsel for the defense, but acquiesced by the Government is the reason why they didn't introduce these admissions against Jimmy Eagle.
That doesn't protect them from the revelation that these things took place. It may be that Your Honor as an individual finds it difficult to believe that the FBI, or certain of its agents are capable of such things; and indeed I think the presumption should be of regularity as to the overwhelming majority of special agents of the Federal Bureau of Investigation. But this case doesn't concern the 7,000 men and women who make up the core of special agents of the FBI. It concerns the activities of a handful of agents who imbarked upon the investigation and preparation of its case and who along the way did things that were very serious that they should not have done.
And we want to show these things to the jury and let them decide what really happened. Did these things occur, did they occur the way the defense argues that they occurred, because most of the facts themselves are not really in dispute. It's the interpretation of the facts that has to be done by the {4041} jury.
The Government will surely argue whatever it believes to be the appropriate position to take and we will argue that it represents misconduct on the part of J. Gary Adams and let the jury decide. That's what it means to say that they're the finders of fact and they are supreme in that regard. That's not something which we just mouth. Let them make that determination, let them say the defense in this case is full of hot air, they're ridiculous. What kind of nonsense is this, and quickly convict our client.
THE COURT:  Specifically what are you alleging Special Agent Gary Adams to have done?
MR. TAIKEFF:  I am alleging that agents of the FBI --
THE COURT:  No, just a moment. I asked you specifically what you are alleging that Special Agent Gary Adams did?
MR. TAIKEFF:  He committed the federal crime of coercion and obstruction of justice in violation of Section 1503 of Title 18 by saying to a person --
THE COURT:  Now, that's a legal conclusion. What are the facts?
MR. TAIKEFF:  Your Honor is a lawyer and I think --
THE COURT. What are the facts?
MR. TAIKEFF:  In that --
THE COURT:  Just a moment. My question is:  What are the facts on which you base that conclusion? Now, that was {4042} the question that I was going to ask you.
MR. TAIKEFF:  Your Honor, I was about to do that in rather one long sentence. In that he threatened a person, to-wit:  "If you don't help us, I know you can be of help to us, I know you weren't there, but if you don't help us even though you weren't there I'll see to it you are indicted for murder." That, Your Honor, is both a violation of the obstruction of justice statute and it constitutes coercion just as if someone came around and tried to collect a debt with the threat of physical force. It is the same kind of illegality which is prohibited under federal law.
There is testimony in this case that, by Michael Anderson, a Government witness on cross-examination, that he was threatened with being beaten by J. Gary Adams.
THE COURT:  And that is relevant testimony.
MR. TAIKEFF:  But, Your Honor, it's part of a pattern, we're trying to show part of a pattern. Does Your Honor expect that the lawyers and nonlawyers, seven in number, who constitute the defense team have the wherewithal, the capacity to get an ironclad case of wrongdoing against the FBI, or are we going to be entitled to show what evidence we've been able to uncover by interviewing witnesses and by examining and carefully comparing documents and let the jury decide?
If the Government is entitled under the law where they {4043} have this immense burden that we have for hundreds of years in English and American jurisprudence required of the Crown or the Government, in light of that tremendous burden, before you can convict someone of a felony and in deed put him in prison for the rest of his life which is mandatory, if they can do that, if any prosecutor can put a person in prison for life under the extreme burden that they face by circumstantial evidence, can it be said that the defense should not be entitled to prove from a series of incidents which involve the same four or five agents, circumstantially as well as specifically that the certain agents of the FBI did terrible and illegal things here?
We have another witness who testified on cross-examination that he was tied in a chair for three hours. What does Your Honor think that is, a cocktail party he was at? Does Your Honor approve of such things? Is Your Honor, does Your Honor suggest --
THE COURT:  Just a minute, Mr. Taikeff. That evidence is in the record. There was never any suggestion by the Court that evidence was not relevant.
MR. TAIKEFF:  But, Your Honor, if that occurred is it not possible that this occurred also? Is it not within the factfinding mission of the jury to determine whether these things occurred or not? Is it so farfetched? For years it would have been farfetched to, if someone had suggested to me {4044} that a prospective witness in a case --
THE COURT:  You've already made that argument to the Court a couple of weeks ago.
MR. TAIKEFF:  Well, then Your Honor must appreciate the position I take.
THE COURT:  I understand the position that you've taken.
MR. TAIKEFF:  We have a person who was not there at all. I'm not talking about Jimmy Eagle, I'm talking about somebody else, a person who was not there at all, who ended up being on the roster of FBI people who was prepared to say that she was there and interestingly enough what she said under oath, and what she said to the FBI agents, purportedly said to the FBI agents was exactly and precisely the stuff that Jimmy Eagle purportedly said to these informants.
Now, Your Honor, if the Government can prove guilt by circumstantial evidence surely the defense should have an opportunity to show by circumstantial evidence the misconduct of the FBI. We just do not have the resources, we do not have the capacity. It took the full power of the federal government to uncover what little was uncovered in Watergate. It took immense resources. We're just seven people. For us not to be able to show five or six distinct and serious acts of the FBI agents in connection with this case in order to be able to argue that they should mistrust, {4045} that they should fail to find to a moral certainty the guilt of the defendant is a total deprivation of our right to present a legitimate defense in this case.
Your Honor did admit the testimony about someone being tied in a chair. Should the Jury be left with the impression that that was a single aberration, that that was one event in many, or should we not be able to show to the jury some rather suspicious, rather questionable things in this particular case? There's a rule in the federal rules of evidence which allows the showing of things to show that there is a pattern. That's Rule 406. That is, a single incident is not a mistake, inadvertence, an error of judgment, but rather a part of a pattern of conduct, {4046} and that's what we're trying to demonstrate here.
Can it be said that the jury cannot consider the significance of what happened in connection with these telescopic sightings? Should it be said that the jury should not consider how the turnout that a person who was absolutely, positively not there, who on Saturday of this week said to two witnesses, "I don't even know Leonard Peltier," that this person somehow or other by some magical process came forward and said, A, "I know Leonard Peltier," B, "He was my boyfriend," C, "We were living together at the Jumping Bull's," D, "I was standing next to him when he shot the agents," and then related in terms which are amazingly identical to the things which Jimmy Eagle purportedly said to four different people, one of whom he didn't even like well enough to even want to talk to about anything. How do those things happen, Your Honor? Your Honor doesn't have to give the answer to that question and Counsel doesn't even have to give the answer to that question. The answer to that question comes from the judges of the fact. Let them tell us all for all time what they make of these events which are part and parcel of this case which didn't just happen, Judge. They happened because human beings made them happen.
There is a case called United States against Vole reported 435 Fd 2d, page 774 which stands for the proposition that if there's any evidence showing that the government introduced witnesses to testify falsely that this is affirmative evidence of {4047} the weakness of the government's case.
Now the fact that the agents of the Federal Bureau of Investigation induced witnesses to testify falsely and then Mr. Hultman, because he recognizes his obligation as a lawyer, member of the bar and officer of the court doesn't call those witnesses, that's a credit to Mr. Hultman's professional standing. It's no credit to the FBI.
If Norman Brown takes the stand and testifies that he testified before the grand jury under threat from the FBI that our client and two others were down by the cars but it wasn't true, and that when he came to Cedar Rapids he said to Mr. Hultman when I gather he met him for the first time, "Mr. Hultman, I testified before the grand jury falsely, I'm telling you now that that's not true," and Mr. Hultman doesn't ask him the question in Cedar Rapids, what does that mean? It means Mr. Hultman understands his professional responsibility and acts accordingly, is entitled to our respect.
But what of the FBI conduct to make that person lie before the grand jury which is part and parcel of this whole Jimmy Eagle thing. It's just like it. It's cut out of the same bolt of cloth and just like the Myrtle Poor Bear thing and, of course, the government doesn't want it to come in and, of course, it's going to be an embarrassment to the FBI.
But what did happen? We can show and there won't be any proof that it didn't happen, it will only, there will {4048} be argument it doesn't mean anything, doesn't mean anything. If I grew an asparagus stalk out of the top of my head, what does it mean? It's there. I must ignore it. It's different but it's there. It has great significance in this case and I beg Your Honor to reconsider that ruling and to take a look at United States against Vole and reverse him.
MR. HULTMAN:  Might I be heard just briefly, Your Honor?
THE COURT:  Very well.
MR. HULTMAN:  I really don't know where to begin. I guess maybe the place I'd like to begin is who is on trial? Jimmy Eagle isn't on trial. So I start with the issue of materiality or relevancy and I end the same place.
Somehow Counsel for the defense feels that because a witness who is a convicted felon says in response to his questions, a convicted felon who has never spoken to the government one word, let alone one word of truth, that "I wasn't there," but has never spoken to the government one word, and I confess it is beyond my comprehension if we're going to talk about asparagus and a few other things that it stretches my imagination to the breaking point that an individual who was not there, who can prove he was with his grandmother and his mother has got any reason other than sometime to talk to somebody and say, "I just wasn't there."
But the government then is put in this posture and {4049} evidently Counsel believes that because certain items of evidence appear at a given time that the government and the FBI is forever bound through dishonesty then not to produce those witnesses, and I imagine what argument Counsel would be having if the government had produced those witnesses under some semblance or conclusion that maybe, one, there wasn't relevance but, two, as to whether or not somebody actually said, "I said I was there" when certain things happened.
Now let's examine what the record shows. Let's take the specifics which is the offer of proof and not a bunch of generalization, although it isn't Watergate, I keep hearing that word over and over again and I keep hearing the FBI being tried. I didn't know we were here to try the FBI or government and I submit that the scintilla of any items that Counsel has mentioned are so irrelevant and so collateral that they serve no purpose but to prejudice this jury on that issue.
Let's talk about then specifically just a moment. Counsel just argued at great length that Jimmy Eagle said that Gary Adams said that words to the effect, "You'd better tell us something or you're going to be indicted for murder," and I say to you that is absolutely astounding what that impact would be when the man sitting there is already accused of murder.
{4050}
MR. TAIKEFF:  But not indicted.
MR. HULTMAN:  Counsel, would you wait until I finish, please.
There evidently is a tremendous difference between being indicted for murder and having a murder charge against you. That's another legal conclusion that I'm sure Counsel is going to get up and argue that Jimmy Eagle knew that difference and so there was a fantastic difference at that particular time. I say it's preposterous. I also would say the proof will show if we got into the collateral matters, as I did, and I begged the indulgence of the Court, that the record will show as Jimmy Eagle actually said finally when we got around to some degree of clarity that the agents came at his request and I submit the proof will show, Your Honor, that on both occasions they came at his request and they came for the two reasons that Jimmy Eagle told you and told the record ultimately:  One, concerning an event that had happened in the morning and on another occasion concerning a lawyer that he didn't want anything more to do with.
Now if the government, and especially Gary Adams, was going to put a story in somebody's mouth at any time and place, I submit you can't have it both ways as Counsel argues it one time one way and then the other. Can you believe for a moment, Your Honor, if the government was going to plant stories that are involved here that they couldn't come up with a hell of a {4051} lot more consistent stories and on the events then what these various stories that Counsel is now attacking and saying, "Oh, it was the FBI that put all these stories together and thus some challenge or some allegation of the commission of perjury" that is so preposterous that it is beyond even my imagination.
If you look at those four statements, Your Honor, you will find things in those statements beyond what Counsel has read into the record and what he's argued to the Court. You will find things in here about which there is no evidence of any kind, anywhere, anytime.
Now I say if the FBI was going to put that together, they could have done a little better job about, one, getting the stories together, two, talk about the relevant evidence and who it has to do with and cut out the extraneous that doesn't have anything to do with anything about anybody at any time. Now that's just a matter of argument. That's just a conclusion on my part.
But I say in defense of the actions that have been taken, Your Honor, one, that FBI agents have a responsibility the same as any other law enforcement agency to take down and do and accept whatever anybody says anytime, anywhere. They're not the grand jury to evaluate what was said or done, they're not the prosecutor, the special prosecutor in this instant to sit down and decide how much credibility to give to it. {4052} Their job is to take it down. And I submit to you that's exactly what this record shows period.
Now there comes a time, however, and Counsel has said well, it's still a big part of this big FBI conspiracy, to use the word, and so for some reason they didn't call these particular witnesses at this trial. Now we're not talking about the FBI at this point, we're talking about one individual and that's the special prosecutor and I can't separate, I can't separate what we do beyond the interviews, Counsel, and I want to make it very clear I can't separate it because you've eluded to a number of the items.
When I read the four statements, I came to the conclusion along with the rest of the evidence that Jimmy Eagle wasn't there and that's the same one you came to and I don't know what the relevance is from that particular point as far as this trial when all the evidence indicates that Jimmy Eagle wasn't there.
Now I did not conclude by that that there wasn't sufficient evidence for somebody at a given time, when you put together the testimony that you brought out, that somebody did think they saw Jimmy Eagle, that there was indeed a warrant for his arrest and the agents were looking for him, that there were individual statements that maybe if you didn't read them real close you might conclude honestly and fairly that Jimmy Eagle had said, "I was there, I did these things," and thus {4053} you got, I think, more than the amount of evidence that's necessary to, one, to bring a charge or, two, for a grand jury to indict. But when it's all done and all of the evidence is in, somebody's got to make a determination at that time, not an FBI agent on one day at one place at one time with reference to what somebody said they saw.
I will submit to this court, and Counsel knows it, they have got it in their document, there are hundreds of 322s that people say something that can't be checked out or corroborated in any way and would Counsel argue for a moment that the government is something terrible by not bringing those particular statements into the record and those witnesses, too.
In conclusion, Your Honor, all I say is that these matters are collateral with reference to the witnesses that they bring the charges about and concerns. They have the witness on the stand, they ask him the questions, that info is before this jury right now. They brought this, cross-examined the witness that made a comment about being tied to a chair. That's in the record, and legitimately in this record. They brought the record who said, and I would correct the record here to make sure there is a difference, and a significant difference, the witness said he said in his 302, he said everywhere with reference to Jimmy Eagle, somebody who appeared the first time, he saw him to be Jimmy Eagle. That's {4054} what the record shows and that's the fact. It is then at a subsequent time that he makes, as cross-examination brought out, a more affirmative, positive declaration. All those matters are before this jury and rightly so.
But when you start digging up phantoms and when you start bringing allegations by one single individual which is there by way of hearsay or somebody else, those are purely collateral. It then means that the government has nothing else to do but to bring in two more people like the statements that I've already brought in indirectly, by the agents, as well as the witness, that clearly indicate I was there on the occasions, the two occasions that I spoke to this witness because he asked us to come for these purposes and for somebody to argue that at that time he was going to be threatened and thus give some further additional information on the basis that he was going to be indicted when he's already charged with the crime of murder seems to me to be so irrelevant that I speak nothing further.
It's only, Your Honor, on the basis of relevancy that the government attacks and that is position one. If, however by some stretch, and I don't think the Vole case reaches that point at all on any showing that's been made here, I'm familiar with the Vole case, too. I say even for some basis the Court could find some ultimate degree of materiality or relevance, it is so outweighed by the prejudiciality effect that it would {4055} have on the basis of the showing that one has either been made or could even possibly be made that it would be so prejudicial and so beyond the intent of those rules that it has no bearing here in terms of the ultimate proof as to whether or not this defendant on this day committed the crime of which he's charged.
MR. TAIKEFF:  Your Honor, could I respond for three distinct points? I will not take very long.
THE COURT:  You'll get three minutes to do it.
MR. TAIKEFF:  I'll try to do it in less.
The government over objection of the defense has introduced into this case evidence of events which occurred in Portland, indirectly evidence of the fact that certain conditions exist as it were in Milwaukee, evidence of an event in Wichita and which the defendant is not even purported to have been involved or present and evidence of weapons uncovered in Canada, all of which was over our strenuous objection on the grounds that collateral issues were coming into this case and that all of this was being introduced would only prejudice the defendant and not give the jury any important insights into the central facts of this particular case.
Your Honor ruled in favor of the government in that regard. I most respectfully ask Your Honor to consider the relevant, or the comparative relevance to the guilt or innocence of the defendant of that body or those bodies of {4056} evidence and that which we offer to the jury for their consideration. I think the conclusion is obvious. But in any event, I ask Your Honor to consider it.
The second point, Mr. Hultman says if the FBI was really intent upon doing that job that the defense claims they did they would have done it much better. We don't agree with him, Your Honor. It requires an assumption that the FBI, or at least the agents involved were sufficiently competent to do the job correctly. I think he overlooks the possibility they were both venal and incompetent simultaneously.
Finally the government argues that Jimmy Eagle never spoke with them, not even to deny his guilt and explain to them that he was at his grandmother's house. Well, surely the government must recognize, and if they don't surely Your Honor must that Jimmy Eagle was charged in a most serious matter and exercised his Fifth Amendment right to be silent and Sixth Amendment right to be represented by Counsel. The fact he said nothing to the government by way of explanation, the fact his Counsel never said anything to the government to show how Counsel would have proven the negative of the charges is nothing that's relevant to this particular argument and finally, apropos of that, Your Honor, on November 13, 1975, J. Gary Adams interviewed a witness by the name of Hazel Little Hawk, also known as Hazel Shields, who lives on the reservation and she told them that during the afternoon of June 26th {4057} 1975 she was at the residence of Jimmy Eagle's grandmother, Gladys Bisenet, and Jimmy Eagle was at the Bisenet residence all afternoon; that Eagle was there visiting his grandfather. That was a few days before he was indicted. I don't see any evidence, Your Honor, that the government with the help or the encouragement of the FBI held off indicting Jimmy Eagle until they pursued that particular aspect of the case.
THE COURT:  The Court is in recess until 1:30.
(Recess taken.)
{4058}
 AFTERNOON SESSION
(Whereupon, at the hour of 1:30 o'clock, p.m., the trial of the within cause was resumed pursuant to the noon recess heretofore taken; and the following further proceedings were had out of the presence and hearing of the jury, the Defendant being present in person:)
THE COURT:  Is Mr. Taikeff coming?
(Mr. Taikeff enters the courtroom.)
THE COURT:  For the record, the Government adheres to the ruling that it made this morning in this matter.
MR. TAIKEFF:  Your Honor --
THE COURT:  (Interrupting) I am sorry. The Clerk indicated to me I said the "Government". The Court adheres to the ruling.