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

SPECIAL AGENT COWARD
GOVERNMENT WITNESS VOL 6
DIRECT CROSS EXAM VOL 7

MR. TAIKEFF:  Defense calls Special Agent Coward.
Your Honor, while the witness is being advised of his appearance, I would like to note for the record that Defendant's Exhibit 75 in evidence, which is a portion of the 302 concerning recordation of certain radio transmissions, or relating to the subject of certain radio transmission, has been expanded by consent of counsel for both sides to now include Pages 3 and 4, so that Defendant's Exhibit 75 consists of the first four pages of Special Agent George O'Clock's 302 {not transcript taken verbatime by dictation by Ann Johnson}; and with your Honor's {4230} permission, I would like to read one entry from the fourth page to the jury.
THE COURT:  The record may show that the additional two pages have been added to that exhibit, and you may read the entry that you refer to.
MR. HULTMAN:  The Government has no objection.
MR. TAIKEFF:  Thank you.
The entry reads as follows:  1:26 p.m. Adams to Coward, south of Oglala, pickup came in here and he just left, can't get any BIA people on it. We have, can you get on Channel 1 and tell them to turn that tower on?
That's the end of the entry, your Honor.

 FREDERICK COWARD, JR.,
having been previously duly sworn, resumed the stand and testified further as follows:
MR. TAIKEFF:  Your Honor, may the witness be advised that he continues to be under oath from his earlier appearance?
THE COURT:  The witness is so advised.
 DIRECT EXAMINATION
By MR. TAIKEFF:
Q  Agent Coward, I am placing before you a single sheet of paper which has been marked Defendant's Exhibit 219 for identification. I am also placing next to that piece of paper a pile of documents which I think you will recognize as being {4231} a number of 302's.
Now, sir, in connection with the piece of paper, the single piece of paper -- do you wish to look through those 302's?
A  I will wait if you wish.
Q  Go ahead and do that. It may be helpful if you do that right away.
A  (Examining).
Q  Now, you recognize that the pile of 302's concern this case, correct?
A  Yes, sir.
Q  And they are 302's of yours and three of your colleagues, namely, Adams, Waring and Skelley, is that right?
A  Yes, sir.
Q  Now, with respect to yourself, there is a copy of your 302 in that pile, is that correct?
A  Yes, sir.
Q  And that 302 in essence covers the events, or at least your main report concerning the events of June 26th, is that right?
A  That's correct.
Q  And on the face of that report, it shows that the date of interview, which also means date of event, as June 26th?
A  I believe so. (Examining) Yes.
Q  And date of dictation, June 30th?
A  Yes, sir.
Q  And date of transcription or typing, July 3?
{4232}
A  That's correct.
Q  All 1975?
A  All 1975.
Q  And the typist apparently was a person with the initials "p.m."?
A  Yes, sir.
Q  Now, will you look at the marked exhibit and tell me whether that chart lists your name, a fair description of what that 302 generally refers to, and the date of interview, date of dictation, date of transcription and the typist's initials accurately?
A  (Examining) Yes, sir, it does.
Q  O.k. Now, you find entries, do you not, for Gary Adams, Fred Coward -- you are Fred Coward -- Gerard Waring and Edward Skelley?
A  Yes, I do.
Q  And you have six additional 302's other than the one which is your own 302, about the events of June 26th. Would you check them to see that the corresponding entries on the marked exhibit are accurate?
A  Well, there is five to begin with that I have here in front of me other than mine.
Q  Other than yours?
A  Yes, sir.
Q  You have two of them for Gary Adams?
{4233}
A  (Examining) Two of Gary Adams'.
Q  All right. Would you check the information on those against the entries on the marked Exhibit, please?
A  (Examining).
Q  May I conclude from the nod of your head that you find those entries to be accurate?
A  Yes, they are.
Q  O.k. Now, do you find -- by the way, before we go -- well, I don't mean to retard your looking in any way.
The next person is Waring, do you find two 302's relative to Waring's activities?
A  Well, I can see one, and then here is another one where he is combined.
Q  Yes, where he is combined with other agents, a so-called crime scene examination is what I am talking about.
A  O.k.
Q  All right. Would you check the entries on the marked exhibit with respect to Agent Waring for the particular category of information I have mentioned?
A  (Examining).
MR. SIKMA:  Your Honor, may I inquire, is counsel talking about the particular information concerning the dates or all of the information in all of these various 302's?
MR. TAIKEFF:  No. The piece of paper which is before {4234} the witness, your Honor, lists -- the document is broken down into four categories by name of agent, and then describes in the most general terms the subject matter, the overall subject matter, the date of interview, the date of dictation, the date of transcription and the typist; and the witness has thus far said that the entries are fair representations of what the reports show, and I am almost finished going through the chart with him.
THE COURT:  Very well.
A  (Examining) O.k., as far as Waring they appear to be like you have it on the sheet.
Q  (By Mr. Taikeff) O.k. Now, Waring's crime scene, 302, which is the second one listed for him, other than the exhibits which are attached, is a four page, single-spaced report, is that correct, or 302, if you prefer?
A  Which one are you saying again, please?
Q  That's the Waring, so-called crime scene, 302.
A  Crime scene, o.k. (Examining) I understand, how many pages is it?
{4235}
Q  It's a four page single-spaced plus exhibits which are attached?
A  Plus exhibits, yes, sir.
Q  Okay. Now, that leaves only Agent Skelly and you should ave two, 302's relating to Skelly's activities?
A  Two? I have one
Q  All right. Is that a multipage report or a single page report?
A  Well, the one that I have in front of me -- oh, here's another one. It's two.
Q  Right. Now, will you check those entries.
A  Yes, sir.
Q  Accurate on Defense Exhibit 219 for identification as to the information shown?
A  Yes, sir.
Q  Thank you Now, sir, I would like to have you direct your attention to the subject of the sightings made at a distance from near Highway 35. Do you recall that involves one way or another with you and a BIA officer by the name of Stoldt?
A  Yes, sir.
Q  Now I'm showing you Defendant's Exhibit 195 for identification which is a one-page 302 which reports in substance Stoldt telling you that he saw Jimmy Eagle.
A  That's correct.
Q  And that's the report that you testified earlier, although {4236} it says date of interview June 28th, it was really June 26th?
A  That's what I remembered.
MR. SIKMA:  Your Honor, I would object to this line of questioning as having been gone into extensively on cross-examination of this witness.
MR. TAIKEFF:  That was a foundation question, Your Honor.
MR. SIKMA:  Case in chief and notwithstanding the fact that it's a foundation question it's the same area of inquiry.
MR. TAIKEFF:  I don't think that's in dispute, those facts. I was just laying the foundation so that the subject matter would be clear to the jury.
THE COURT:  Proceed.
MR. TAIKEFF:  Thank you.
Q  (By Mr. Taikeff) Now, are you certain that you obtained that information from BIA Officer Stoldt when you were talking informally in an automobile in which you were riding together in the latter part of the day?
A  Well, as I've stated before that the information contained in this 302 was a result of a brief conversation that Marvin Stoldt and I had along with Vincent Breci on our way back to the Harry Jumping Bull residence after, you know, our situation that day.
Q  Okay. Everything that you say is clear except the one thing {4237} you didn't specifically confirm which is the thing I was asking you about, is:  Was it in a car that you were all together?
A  Oh, yes. Yes, absolutely. And you are sure of that, as sure as you can be from your memory?
A  As sure as I can be from my memory.
Q  Okay. That's what I wanted to find out. Now, sir, I'm going to place before you Defendant's Exhibit 194, part of which is in evidence now and can be referred to by reading aloud if necessary. However, I wish to caution you that the part of it which is in evidence begins here (indicating) next to that little blue dot at the bottom of page 3, and continues down to this blue dot (indicating) near the bottom of page 4, and only those three paragraphs are in evidence.
A  Do you want me to read those?
Q  You can look at them to refresh your recollection concerning that report. I would like to just make sure that the jury understands that this is a report of an interview you conducted of Marvin Stoldt on or about September 4, 1975. And that, by the way, was the second time that you ever spoke to him in your life?
A  Oh, that's not true.
Q  On the subject of identifications?
A  On the subject of identifications, yeah.
Q  Okay. Good. Just so the jury knows which report we're {4238} referring to.
A  Okay.
Q  Now, sir, on page 4 of that exhibit the first full paragraph, the first sentence says:  "Stoldt stated that during the first statement he had given to the FBI a few days after the shooting of the agents he told the agents then, one of the agents being Agent Coward, that he saw Jimmy Eagle in the group that he had just identified but was not absolutely positive during the interview."
You dictated those words, did you not, to the stenographer who eventually typed this report?
A  I did.
Q  And presumably he or she typed what you dictated?
A  Yes, sir.
Q  And then you initialed the report as being accurate as far as you could tell at that particular time?
A  To the best of my knowledge, yes.
Q  Yes. Well, can you offer us some explanation as to why your report in September makes reference to a statement Stoldt purportedly gave to the agents, including you, "a few days after the shooting".
MR. SIKMA:  Your Honor, I believe this matter was covered in cross-examination of this witness at length. I think it was in pages of the transcript from 1209 to 1369. This witness was cross-examined at length about this. It's {4239} totally repetitious and irrelevant.
MR. TAIKEFF:  Your Honor, this is the first time I've been able to read to the jury because it's the first time we've had in evidence the actual text of that paragraph. And now we've had the testimony of Marvin Stoldt, and under the circumstances I think it appropriate for this question to be put to this witness at this time.
THE COURT:  I will allow this question, but I'm not going to allow you to go through the same material that we went through --
MR. TAIKEFF:  I have no intention of doing that, Your Honor.
THE COURT:  Very well.
A  Well, the only answer in reading this that I can give is that it's a mistake that I made based on what I'm reading here, and the only explanation that I can give is that when I prepared this 302 I would have gone back to the other 302 that was dictated the 28th and used it for purposes of putting down the information on the paper.
Now, as I sit here and tell you the only two times that I ever discussed this type of situation with Marvin Stoldt was on the day that we drove back from the Jumping Bull's and the day that he came in the office.
Q  (By Mr. Taikeff) So if I understand what you are saying you had reference to the earlier 302 which is Defendant's {4240} Exhibit 195 for identification and that sort of mislead you into what went into the second 302 because of the error which is in the lower left-hand corner of that exhibit, am I right about that?
A  Well, what I'm saying is that to refresh my memory, you know, of a particular time we discussed there's so many things happened, you know, different times that we're talking to people and that I would have gone to the file and used it as a reference, yes.
Q  Well, as a general rule would you say that if you experience something that your memory as a general rule is better close to that event than further from that event?
A  Well, it depends. It depends --
Q  But generally speaking, is that not your experience with your own memory?
A  With my memory, it is, yes, sir.
Q  All right. I think we probably all have the same experience, don't you?
A  Yes.
Q  Now, when you were talking with Stoldt in September, that was a little more than two months after the event, if you made any reference to your 302, explain why you did not recognize the error of the June 28th, only two months later, considering the fact that in this courtroom you instantly recognized that fact and said, "Oh, that date is wrong, that couldn't be the 28th".
{4241}
A  Well, the only way that I recognized that is because of the fact that some things, some impulsive thing that you asked me a few weeks ago about this, you know, it triggered my memory, it refreshed it.
But to say that I would have had the same response, or the same feelings the day I interviewed him I couldn't say that. I mean, certain things will trigger it.
But as I sit here and tell you now the only two times I've discussed this with Marvin Stoldt was on the day we came back and the day that he came in, and that's the truth.
Q  This second sentence of that paragraph which concludes the paragraph says:  "Stoldt continued and stated, but since then I have continually thought about what happened on June 26, 1975 and at this time and during this interview he was positive in his own mind that Jimmy Eagle was the individual that was running behind the person who appeared to be Leonard Peltier."
Now, what I want to know is, is there any kind of administrative or typographical error here or did Marvin Stoldt on September 4, 1975 tell you in words or in substance that he was positive in his own mind that Jimmy Eagle was the person he sighted?
A  Well, I asked him that question and he said he was positive.
Q  You previously told us, and in reference to Defendant's Exhibit 92 for identification, that you signed an affidavit concerning the sighting. Do you recall that?
{4242}
A  Yes, sir, I did.
Q  Did you have anything to do with preparing Defendant's Exhibit 109, a similar type affidavit on the same subject signed by Marvin Stoldt?
A  None whatsoever.
Q  Do you know anything about the preparation or the existence of that second affidavit, Defendant's Exhibit 109?
A  I only know it because of what you mentioned last week.
Q  Now, you were in the --
MR. SIKMA:  Your Honor, I would object to this line of questioning. It's clearly repetitious. This is the same thing we went over the last time this witness was on the witness stand. He's just stated in his foundation that he knows nothing about it I object to any further questions along this line.
MR. TAIKEFF:  Your Honor, I have to lay some foundation so as I cover each point the jury has some idea of what the subject matter of my inquiry is. That's the only reason I do this. I acknowledge in answering --
MR. SIKMA:  I would appreciate being able to go to the bench at this time.
MR. TAIKEFF:  After the Government makes its objection then my statements have to be at the sidebar.
MR. SIKMA:  Your Honor, I object to this.
MR. TAIKEFF:  Your Honor, I acknowledge, when I ask my {4243} questions that we had gone over it before, only to set the stage for the inquiry. And I think that's appropriate so the jury will know what I'm talking about.
MR. SIKMA:  Your Honor, my request to go to the bench?
THE COURT:  You may come to the bench.
(Whereupon, the following proceedings were had at the bench:)
MR. SIKMA:  My objection is, Your Honor, that this witness now has waited around for about two weeks to cover the same ground that we've covered on direct examination. He's indicated he knows nothing about this other affidavit. He filed an affidavit earlier, but this matter was gone into in an area of about fifty pages in the transcript.
We object to certain things that he's already covered which were not only to the case in chief, but this is far beyond that and right back into the area of which has already been covered.
MR. TAIKEFF:  Your Honor, if he waited two weeks it wasn't just to testify about this. It was to testify about the Jimmy Eagle aspect of the case.
THE COURT:  Well, I'm not concerned about the length of the time that he waited. I'm interested in knowing what it is that you are seeking to bring out that wasn't brought out when you cross-examined him before.
{4244}
MR. TAIKEFF:  I think Your Honor should recognize that I am not pursuing this witness concerning his own observations or his earlier testimony; and I am limiting myself now, and I'm almost finished in fact to clarifying certain conflicts, factual conflicts, which arose during the testimony of Marvin Stoldt.
I have not questioned him about his sighting or his particular activity on that day. That matter is thoroughly reviewed. I'm only touching on the two or three points brought out on Marvin Stoldt's testimony I need that clarification on this and he was with Marvin Stoldt and he was a witness of what he was doing and that's the only thing I'm questioning the witness about.
MR. SIKMA:  He's now brought up however an affidavit of Marvin Stoldt. I object to this completely Marvin Stoldt isn't on the witness stand and he didn't even ask Marvin Stoldt about that.
MR. TAIKEFF:  Are you denying that he signed the affidavit?
MR. SIKMA:  No, I'm not denying that he signed that affidavit, but in order for an affidavit to be used or a prior inconsistent statement the witness has to be on the witness stand and be given an opportunity to explain it. Otherwise it cannot be brought into it. He knows that he can't get it in evidence here because of the rule.
{4245}
This witness doesn't know anything about it. Now, I think that it's improper to put that affidavit of Marvin Stoldt's before this witness and ask him questions relating to it.
MR. TAIKEFF:  But he might have prepared the affidavit and that's all I asked him, whether he had anything to do with its preparation.
MR. SIKMA:  He indicated that he has none and that's why.
MR. TAIKEFF:  That was the end of the inquiry.
THE COURT:  Then it's closed.
MR. TAIKEFF:  Yes.
MR. SIKMA:  Okay.
{4246}
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
Q  (By Mr. Taikeff) Mr. Coward, I want to ask you about one last point, it concerns some testimony that was given in your absence. You were with Marvin Stoldt at or about the time the sightings were made, is that correct?
A  That's correct, sir.
Q  And he was near one window and you were near another window, is that correct?
A  That's correct.
Q  Were there any other people in your immediate proximity that in any way were participating in the activities which I will loosely describe as the sighting?
A  Well, there were people in the house. You know, we were all in the house and outside of the house at different times.
Q  I'm talking about during those few minutes or few seconds, as the case may be, at approximately 3:45 in the afternoon when, and I'm going to use abbreviation so we don't go over any ground unnecessarily, when you and he made some sightings at a distance first with the naked eye then with certain instruments. Now at that time he was at one window, you were at another window. That was the side of the house that was facing east. I want to know if you recall anybody being in your immediate proximity and in someway participating in that sighting activity?
A  Well, I don't know if they were participating in a sighting, {4247} but there were other people in the house at the time and, you know, I went over to the window because he called me to it, and there are other people around milling. Now whether they were -- because I was looking out myself, I couldn't tell who was behind me. But I do recall there were other people milling around and moving. Now whether they were actually in the, you know, looking themselves, I don't know.
Q  Now the total time from his first alerting you until the last observation was made was probably just a matter of a few seconds, wasn't it, ten, fifteen seconds at most?
A  His or mine?
Q  Or maybe less.
Well, from the time he first got to you and said, "Hey, take a look up there," and until there was nothing more to see up there.
A  Seconds; yes.
Q  Seconds. Was there a third person involved in any particular way?
A  Well, like I said, there were people around going, you know, in and out of the building and possibly while I was down there there possibly would have been somebody there. I can't say because I wasn't watching behind me, you know.
Q  Did Marvin Stoldt look through your telescopic sight?
A  No, sir.
Q  Did he look through any telescopic sight?
{4248}
A  Not that I know of. It's possible.
Q  Did he look through anything else that you know of?
A  The only thing I can say is when he called me over there because I was, you know, I was positioned in such a way I had seen it before but when he called me over there he had binoculars
Q  He had binoculars?
A  Yeah. He was standing up.
Q  Was there some person next to him from whom he borrowed binoculars or did he have them on?
A  The only thing I recall is he called me and I came over there, he had them in his hands. Now whether he had them on or whether he got them, I don't know.
Q  You're pretty sure of that?
A  The best I --
Q  Your memory serves you --
A  As best I can tell you.
Q  Then I would have one final inquiry of you, sir.
At page 1314 in the transcript, tell me whether you recall being asked these two questions and giving the corresponding answers and then I'll put my final question to you. Question:  "Now do you know whether a similar sighting was made by Officer Stoldt of that group in which he identified amongst others possibly James Eagle"? Answer:  "Yes, sir." Question "And do you know what Officer Stoldt used to make his sighting?" Answer "I later found out they were binoculars."
{4249}
First of all, were you asked those two questions in this case and did you give those two answers?
A  You made it. I mean, you asked it and I made it; yes.
Q  You understand we have to go through certain formalities sometimes, don't you?
A  I realize that.
Q  Now, sir, if you tell us now in April of 1977 that your memory is clear that he was wearing binoculars, explain, please, if you can, why you said that you later found out that he used binoculars.
A  Well, again the only thing I can think of is, you know, I think at the time that you were asking those questions to me earlier is when we referring to when he came in and gave me the statement. Now whether, well, that's what I recall and I think basically when I made that statement it would have to be because that's what he told me and with the two, that would have to be my observation and my answer. That's the only way I could make such a statement.
Q  Anything else you'd like to say on that subject?
A  No. That's it.
MR. TAIKEFF:  The defense offers Defendant's Exhibit 219 which is the summary of the information from that group of reports.
MR. SIKMA:  Your Honor, I'd object to this as {4250} irrelevant, immaterial and not the best evidence.
MR. TAIKEFF:  What would Mr. Sikma suggest is the best evidence? I'll offer the best evidence.
MR. SIKMA:  Testimony of the witness, Your Honor.
MR. TAIKEFF:  This witness has testified from the government documents and said that that summary is accurate.
MR. SIKMA:  Your Honor, there are items on there, there are matters on here the type that's a lot of material which is totally irrelevant. I've never seen this before
THE COURT:  I'll have to reserve ruling because I have not seen the document.
MR. TAIKEFF:  I have no further questions of this witness, Your Honor.
MR. SIKMA:  Your Honor, I have no further questions of this witness.
THE COURT:  The Court is in recess until 11:00.
MR. SIKMA:  Your Honor, pardon me. I beg the Court's pardon. Is this witness excused now?
MR. TAIKEFF:  As far as we're concerned he is, Your Honor.
THE COURT:  You may step down and you are excused.
THE WITNESS:  Thank you, Your Honor.
THE COURT:  Court is in recess until 11:00 o'clock.
(Recess taken.)
{4251}
(Whereupon, the following proceedings were had without the hearing and presence of the jury:)
THE COURT:  Ready for the jury?
MR. TAIKEFF:  Yes, Your Honor.
THE COURT:  The jury may be brought in.
MR. TAIKEFF:  Is Your Honor going to rule on that offer?
THE COURT:  I am not prepared to rule on that offer. I want to give some reconsideration to it.
MR. TAIKEFF:  Does Your Honor want me to hand to the Clerk the documents which the witness looked at before?
THE COURT:  Yes. You can do that. I could rule on it by this afternoon though if I see these documents.