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

WHEREABOUTS OF MYRTLE POOR BEAR

THE COURT:  Very well. You indicated earlier that you wanted to call Mr. Warren.
MR. TAIKEFF:  And I have the other witnesses available {4172} as well. I told Your Honor before that I wasn't sure of their whereabouts. I thought they had left. Indeed they had, but they returned.
THE COURT:  Very well.
MR. TAIKEFF:  They probably went out for some refreshments.
THE COURT:  You may proceed on that.
MR. TAIKEFF:  Jeanette Tallman.
MR. HULTMAN:  What was the name again, Counsel?
MR. TAIKEFF:  Jeanette Tallman, one word.
MR. HULTMAN:  Is this still on the offer?
MR. TAIKEFF:  No. The offer is closed at this moment except for Wood which will be done tomorrow.
MR. HULTMAN:  Okay.
{4173}
THE COURT:  This, Counsel, as I understand it, relates to the availability or nonavailability of Myrtle Poor Bear, is that it?
MR. TAIKEFF:  That's correct, Your Honor.
THE COURT:  Very well.
 @@JEANETTE TALL MAN,
being first duly sworn, testified as follows:
MR. TAIKEFF:  May I proceed, Your Honor?
THE COURT:  You may proceed.
 DIRECT EXAMINATION
BY MR. TAIKEFF:
Q  Miss Tall Man, where do you live?
A  Allen, South Dakota.
Q  That's A-l-l-e-n?
A  Yes.
Q  Is that on the Pine Ridge Reservation?
A  Yes, it is.
Q  I'm showing you a piece of paper which contains a reproduction of a photograph. It's marked Defendant's Exhibit 158. Would you please look at that.
Have you ever seen that piece of paper before?
A  No.
Q  Have you ever seen that photograph that is reproduced in that piece of paper?
A  No.
Q  Do you know whose photograph that is?
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A  No, I don't know.
Q  Do you know a person by the name of Myrtle Poor Bear?
A  Yes.
Q  Is she a member of your family?
A  Yes.
Q  What's the nature of your relationship to her?
A  She's my first, first -- she's my second cousin.
Q  And do you know where she lives?
A  Allen, South Dakota.
Q  And with whom does she live?
A  With her father.
Q  Anybody else?
A  Her sister.
Q  Does she have a sister by the name of Elaine?
A  Yes.
Q  When was the last time you saw Elaine?
A  I've seen Elaine?
Q  Yes. Did you see her today?
A  Yes, I did.
Q  Is she here in Fargo?
A  Yes.
Q  When was the last time you saw Myrtle Poor Bear?
A  Last Wednesday.
Q  Less than a week ago?
A  Yes.
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Q  And where did you see her?
A  Outside of her house.
Q  In Allen, South Dakota?
A  Yes.
Q  And before that when did you see her just prior to Wednesday, whether it was a day, a week, a month, a year, when was the last time before that you saw her?
Q  About a month ago.
MR. TAIKEFF:  I have no further questions of this witness, Your Honor.
MR. CROOKS:  I'm somewhat unclear as to what the purpose of this line of questioning was but we have no questions.
MR. TAIKEFF:  It is for all practical purpose making a record for the defense in connection with the appearance or nonappearance of a witness.
THE COURT:  You may step down.
MR. TAIKEFF:  Theodore Poor Bear.
 THEODORE POOR BEAR,
being first duly sworn, testified as follows:
MR. TAIKEFF:  May I inquire, Your Honor?
THE COURT:  You may inquire.
 DIRECT EXAMINATION
BY MR. TAIKEFF:
Q  Mr. Poor Bear, if you talk to that microphone everybody will be able to hear you. Do you understand that?
{4176}
A  Yes.
Q  Where do you live?
A  Allen, South Dakota.
Q  And do you have any family that lives with you?
A  Yes.
Q  Are they your children?
A  Grandchildren.
Q  And children, too?
A  Yes.
Q  Do you have a daughter named Elaine?
A  Yes.
Q  Does she live with you?
A  Yes.
Q  Is she here with you in Fargo?
A  Yes.
Q  Just outside this courtroom?
A  Yes.
Q  Do you have a daughter named Myrtle?
A  Yes.
Q  Where does she live?
A  She lives at Allen.
Q  The same place in Allen?
A  Yes.
Q  In your house or apartment?
A  My house.
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Q  In your house. How long has she lived with you in your house?
A  Ever since she was a child.
Q  And how old is she now?
A  25.
Q  So practically all of her life she lived at home with you, is that right?
A  Yes.
Q  When did you come to Fargo?
A  Yesterday.
Q  On Sunday?
A  Sunday; yeah.
Q  And when was the last time you saw your daughter Myrtle?
A  Before I left from Allen.
Q  What time did you get here on the airplane on Sunday?
A  Around 3:00 I think.
Q  Quarter to 3:00?
A  Yes.
Q  And you came from Rapid City?
A  Yes.
Q  How did you get to Rapid City?
A  In a car.
Q  Did you see your daughter Myrtle on Sunday?
A  Yes.
Q  Did she sleep at home the night before?
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A  Yes.
Q  She slept at home Saturday night?
A  Yes.
Q  Was she home on Saturday during the day?
A  Yes.
Q  Was she home the night before, Friday night?
A  Yes.
Q  Did she sleep at home?
A  Yes.
Q  Was she home on Friday?
I'm going backwards now, back now three days to last Friday.
A  Yes. I think.
Q  Was she home all week last week?
A  Yes. All week.
Q  Did she sleep at home every night?
A  Yes.
Q  I show you a piece of paper which we've marked Defendant's Exhibit 158. There's a copy of a photograph on that piece of paper. Would you look at it, please.
Does that photograph mean anything to you?
A  No. I don't think so.
MR. TAIKEFF:  I have no further questions of this witness, Your Honor.
MR. CROOKS:  We have no questions.
{4179}
THE COURT:  You may step down.
MR. TAIKEFF:  Elaine Poor Bear.
 ELAINE POOR BEAR,
being first duly sworn, testified as follows:
MR. TAIKEFF:  May I proceed, Your Honor?
THE COURT:  You may proceed.
 DIRECT EXAMINATION
BY MR. TAIKEFF:
Q  Where do you live, Miss Poor Bear?
A  Allen, South Dakota. On the Pine Ridge Reservation.
Q  And did you live with any members of your family?
A  Yes, I do.
Q  And who are they?
A  I live with my sisters Angie Poor Bear and Clara Poor Bear, Myrtle Poor Bear and myself and my father.
Q  When did you come to Fargo?
A  Yesterday.
Q  What time did you arrive?
A  I believe it was 2:45.
Q  And before you left home did you see your sister Myrtle?
A  Yes, I did.
Q  Where did you see her?
A  At home.
Q  I show you a piece of paper which has on it a duplication of a photograph. It's been marked Defendant's Exhibit 158. Would you please look at that. Do you know who's depicted in [[NOTE:  PAGE 4179 ENDS HERE IN MID-SENTENCE. PAGE 4180 BEGINS AS SHOWN BELOW, WITHOUT COMPLETING THIS SENTENCE.]]
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A  My sister Myrtle.
Q  Does she look different than she usually does?
A  Yes.
MR. TAIKEFF:  I have no further questions.
MR. CROOKS:  We have none.
THE COURT:  You may step down.
MR. TAIKEFF:  Defense calls Chief Deputy Warren.
 HAROLD C. WARREN,
being first duly sworn, testified as follows:
MR. TAIKEFF:  May I inquire, Your Honor?
THE COURT:  You may inquire.
 DIRECT EXAMINATION
BY MR. TAIKEFF:
Q  Mr. Warren, I don't think it is necessary to belabor the record with your qualifications and status. You're the Chief Deputy United States Marshal in this division of the district of North Dakota, are you not?
A  That's correct.
Q  And in connection with your official duties you have had some contact since the time this trial began with the subject of a person named Myrtle Poor Bear?
A  Yes, I have.
Q  Now, sir, I would like to begin with an event which occurred slightly after 5:00 o'clock one afternoon within the past couple of weeks after Court recessed for the day that has to do with the presence of Myrtle Poor Bear in your office. Are {4181} you acquainted with the particular subject and event that I'm talking about?
A  Yes, I am, Counselor.
Q  Do you happen to recall the date? I don't know and that's why I ask.
A  No, I don't.
Q  Now on that particular day did Myrtle Poor Bear have any status with the United States Marshal service?
{4182}
To put it more directly --
A  (Interrupting) I understand your question. If my memory serves me right, I believe she did on that day.
Q  And what was that, sir?
A  She was a protected witness under the Witness Security Program of the U. S. Marshal's Service.
Q  Do you know how long she had been in that status?
A  No, I do not.
Q  Do you know where she came from -- I am talking about only the state, not the exact location -- prior to arriving here?
A  As a fact I do not, only by hearsay.
Q  Does that hearsay indicate she came from California?
A  That it does.
Q  And was she transported from whatever location she came from in the custody or in the company, at the very least, of a U. S. Deputy Marshal?
A  No, she was not.
Q  She came alone?
A  Yes, she did.
Q  Now, somewhat after 5:00 o'clock, Mr. Lowe and Mr. Engelstein and I came to your office, and there was a court reporter present?
A  That's correct.
Q  And in addition, Myrtle Poor Bear was sitting on a couch in the Chief Deputy's or the Marshal's private office, is that {4183} correct?
A  That's correct.
Q  And also present was yourself, and at least one other Deputy Marshal?
A  That's correct.
Q  Now, at that time, either Mr. Lowe or I explained who we were and told Miss Poor Bear that we represented Leonard Peltier, and that we wanted to know whether she would be willing to be interviewed by us and she said, "No," is that correct?
A  That's correct.
Q  And during all of that time you were present in the office?
A  That's correct.
Q  Now, after she said, "No," I believe that I handed you a piece of paper and asked you to serve it for me, is that correct?
A  That's correct.
Q  And was that a subpoena which was returnable the following morning at 9:00 o'clock in this courtroom?
A  That's correct.
Q  Now, between the time we left your office, shortly after those events, and the next morning, can you tell us where she was and whether she was under your protective custody?
A  She was in the Fargo area, in a local motel in the Fargo area. She was under our protection, correct.
Q  And the following morning at or about 9:00 o'clock, or possibly a little earlier, she came to this courthouse, did she {4184} not?
A  That she did.
Q  And during the period that she was here or at least initially, she was still in your protective custody?
A  That's correct.
Q  That morning?
A  That's correct.
Q  Had she indicated to you in any way the preceding afternoon of her desire to terminate her status as a protected witness?
A  No, she did not.
Q  Did anyone say anything to you about the possibility of her terminating her status that afternoon?
A  Well, I inquired of our Washington office as to her status.
Q  What were you advised?
A  I was advised that at that specific day, whatever the date was, was the last day that authorization had been extended for her participation in the Witness Security Program.
Q  And that particular day was the day on which we came to your office, or was the following day when she was still here because of the subpoena?
A  The following day because of her presence based on the subpoena.
Q  Now, do you know whether it was the intention to terminate her involvement in the witness protection program on the day when we came to your office?
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A  Well, this had been determined approximately 10 days prior to that.
Q  And the day that was picked was the day that we were coming to your office or the following day?
A  The day that was actually picked was the day that you came into our office. I requested an additional day be authorized, which was granted.
Q  That was because we had gotten a subpoena from the Clerk and it required her presence the next morning, so I gather in your judgment you decided she better stay in your protective custody until the matter of the subpoena was dealt with, is that a fair summary?
A  That's a fair summary, right.
Q  O.k. Now, later that day -- I am now speaking of the second day in the sequence -- you received some process from his Honor, Judge Benson?
A  That we did.
Q  And what was that process?
A  That was a material witness warrant.
Q  Which authorized you to arrest her and bring her before a judicial officer so that she could be dealt with according to law?
A  That's correct.
Q  Did you execute that warrant?
A  That warrant was executed by a Deputy Marshal. She was {4186} taken before a Magistrate, and the Magistrate released her after she had -- after the portions of the material witness -- conditions of the material witness warrant had been expressed to her; and she was returned to the Marshal's office, and I was advised that the Magistrate had approved her departing from our custody based on her agreeing to the conditions of the material witness warrant.
Q  And as far as you know, she left on her own steam?
A  That she did.
Q  Now, what were the conditions that you referred to a few moments ago?
A  The No. 1 condition was that she execute a thousand dollar personal recognizance bond. The second condition was that she maintain contact with the Marshal's office at Fargo, North Dakota by telephone at least once a day.
Q  Now, beginning on the day that she was released -- and do you happen to know that date?
A  No, I do not.
Q  Did she keep daily telephonic contact with your office as far as you know?
A  No, not daily.
Q  When she left the custody of the Deputy or Deputies who had her in their custody, do you know whether or not she had executed the thousand dollar personal recognizance bond?
A  At the time I was informed that it was believed that {4187} she had not executed by signature the one thousand p.r. bond.
Q  Do you have any information concerning why she did not -- and in fact I think the court record reflects that she had not executed such a bond?
A  No. I have no personal knowledge of why it was not done.
Q  May I assume though that whoever turned her loose or let her go was under the impression that she had signed such a bond, or do you have information to the contrary?
A  No. I believe that the Deputy that took her before the Magistrate felt in their own mind that she had not signed a p.r. bond.
As a matter of fact, if my memory serves me right, it was brought to the attention of the U. S. Magistrate, that she did not believe that the bond had been signed.
Now, I say "she", it was a female Deputy Marshal that escorted her.
Q  I understand that, sir. Do you know what determination the Magistrate made in connection with that suggestion that was made?
A  No, I do not.
Q  That suggestion was made before Myrtle Poor Bear left the courthouse, am I correct?
A  That's true.
Q  Do you know the name of that Magistrate?
A  Magistrate Hill, James Hill, I believe it is.
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Q  Now, sometime --
THE COURT:  (Interrupting) I think maybe the record should be corrected to show the name of the Magistrate to be William Hill.
MR. TAIKEFF:  Yes, your Honor.
THE WITNESS:  William Hill, I am sorry.
Q  (By Mr. Taikeff) May I assume -- if it is a fair assumption and tell me if I am wrong -- that the Marshal who had Myrtle Poor Bear in her custody was aware that the warrant required the execution of the bond and needed a certain piece paper in order to let her go free of the warrant?
A  I don't think that's a fair assumption. We are laymen and not attorneys; and when an attorney who is a United States Magistrate advises us to release an individual based on his decision to release that individual, we don't argue.
Q  O.k. I meant normally, when you or one of your colleagues takes a prisoner who is to be bailed or bonded before a judicial officer, as a general rule you expect some piece of paper that will show why you gave up the body, as a matter of general procedure I am talking about?
A  Now, I don't think it is a general procedure. It is somewhat of a practice procedure. Sometimes we receive it, sometimes we don't. That would be a release or temporary commitment, we don't require it.
Q  I see. You are satisfied if a judicial officer says that {4189} person may leave, to let that person go?
A  That's true.
Q  O.k. Now, sometime after she was released, she stopped contacting you for a certain number of days, am I correct?
A  Correct.
Q  And you and I had a conversation in which I indicated that I was curious to know whether you were in touch with her because I wanted her brought here; and at that time you said to me, "I haven't heard from her since last Sunday"?
A  That's true.
Q  Now, I don't remember so I ask you in case you do, was the Sunday you were talking about one week ago yesterday or was it two weeks ago yesterday?
A  One week ago yesterday.
Q  So it is now approximately eight days since you last heard from her?
A  That's true.
Q  What, if anything, have you done since eight days ago to secure her attendance here as a material witness?
A  We have on several occasions, almost daily, contacted or called by telephone the telephone numbers that Miss Poor Bear provided us with, which one belonged to an aunt and uncle in Pine Ridge, one was a contact telephone number at Allen, South Dakota, a May's Store which was near Miss Poor Bear's father; another was in Alliance, Nebraska.
{4190}
We have contacted the Marshal's office in Rapid City, South Dakota. We have asked them to notify the local law enforcement BIA in the area, attempted to locate Myrtle Poor Bear and to make contact with her, and likewise to us.
Q  Now, this past Friday your office received another warrant signed by Judge Benson, is that correct?
A  That's correct.
Q  And this one provided for her arrest and bail in the amount of $10,000,00 cash or surety, is that correct?
A  I don't recall the amount, but we received a warrant of arrest for Myrtle Poor Bear.
Q  Do you recall the approximate time of day, or if you have the exact time of day when you got that warrant?
A  No, I don't. It was Friday afternoon, and that warrant came from the Clerk of Court's office with the Clerk of Court -- Deputy Clerk of Court's signature on the warrant authorizing the warrant.
Q  You know it was sometime after 12:00 noon?
A  Yes, sir.
Q  Now, did you directly or indirectly dispatch any Deputy U.S. Marshals to look for her, either before or after Judge Benson signed the warrant this past Friday?
A  After we received the warrant, we telephoned Rapid City, South Dakota. We asked them to attempt to locate Myrtle Poor Bear that a warrant had been issued; we were teletyping the {4191} warrant to the Marshal's office in Sioux Falls, South Dakota, and that was the extent of our activity on Friday.
{4192}
Q  Was there any activity on Saturday, Sunday or today?
A  This morning I talked with Rapid City and learned that a deputy marshal and matron had departed Rapid City and spent, oh, last Friday, spent most of Friday night and Saturday in an attempt in Rapid City, the Pine Ridge, the Allen, South Dakota area in attempting to locate Myrtle Poor Bear and they had not located her; although they had observed, obtained information she was in the area but they were unable to arrest her.
Q  As far as you know do you have her home address in Allen, or the location of her house?
A  Yes. Approximate location of her house.
Q  And do you know if any deputy marshal went to that home address?
A  I was advised that they had been to that address.
Q  On what day or days?
A  I would, I'm assuming it would have been Friday evening or Saturday. I don't know for sure.
MR. TAIKEFF:  I have no further questions at this time, Your Honor.
MR. CROOKS:  We have no questions of Mr. Warren.
THE COURT:  You may step down.
THE WITNESS:  Thank you.

The note of the missing sentence appears in the transcript as received..