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

PREVIOUS TESTIMONY ON RADIO TRANSCRIPT BY ANN JOHNSON, FBI STENOGRAPHER...THE SUBSEQUENT PAGES WOULD HAVE CONTRADICTED AGENT ADAMS TESTIMONY (?) AND WERE NOT ADMITTED INTO EVIDENCE..


 VOLUME 20
{4197}
 TUESDAY MORNING SESSION
 April 12, 1977
(Whereupon, the following proceedings were had and entered of record on Tuesday morning, April 12, 1977 at 9:00 o'clock, P.M. without the jury being present and the defendant being present in person:)
THE COURT:  When we recessed last night there was one witness apparently left on the offer of proof, Agent Wood.
MR. TAIKEFF:  Yes. And there would be a verbal offer with respect to the offer of proof concerning the attorney, Marvin Amiotte, Your Honor may recall.
THE COURT:  I am wondering if we should interrupt the offer of proof and go on to other matters so that the jury may be brought in.
MR. TAIKEFF:  Your Honor, it makes little or no difference to the defense. Whichever schedule Your Honor prefers to follow.
THE COURT:  How much time would you anticipate it would take to present the testimony of Special Agent Wood?
MR. TAIKEFF:  Trying to maximize my estimate so that I'm not wrong, I'd say about 30 minutes. Probably will be less but I think 30 minutes should be allowed for it.
THE COURT:  I think we will interrupt the offer of proof then and go on to other matters this morning and we'll work in the offer of proof perhaps after the jury is excused {4198} for the day or sometime like that.
MR. TAIKEFF:  Would Your Honor allow me to bring a few matters to the Court's attention. I think it should be taken up at this time. I won't take very long. Concerning the subject of requested charge.
I would first make inquiry as to whether the government intends to serve and file any reply to our briefs?
MR. HULTMAN:  I'm not quite sure to what Counsel is referring, Elliot. Maybe you could indicate which ones and I might be in a little better posture.
MR. TAIKEFF:  It's my understanding, I did not handle that portion of the case, it was done by Mr. Engelstein and Mr. Nadler, but the defense has submitted its own requested charge and in addition to which it has submitted two memoranda, one in support of its proposed jury instructions and one detailing specifically the basis for the opposition to certain government charges.
The reason I raise the request about a government response is because I wanted to ask the Court to set aside some time so that Counsel could be heard and so the Court could make its decision and advise Counsel because I think the final preparation for the summation should reflect Your Honor's ruling with respect to certain key and important instructions to the jury. That's the reason why I bring it up now so that appropriate time can be set aside for whatever has to be done.
{4199}
MR. HULTMAN:  In response, we have submitted our request, Your Honor, and we intended to stand on that posture and not respond further.
THE COURT:  It is not your intention then to respond to the two memos that defense has filed?
MR. HULTMAN:  It is not. It is not, Your Honor.
THE COURT:  The Court will allow time for oral argument on the points raised in defense memorandum.
MR. HULTMAN:  We would intend to respond at that time, Your Honor.
THE COURT:  I would expect that. You do not intend to file a written response?
MR. HULTMAN:  Nothing further.
MR. TAIKEFF:  I assume Your Honor will make some provision to advise the Counsel of the rulings prior to the time that Counsel has to make its final preparation for summation so that arguments are not made which are inconsistent with the view of the law that the Court will take to the jury?
THE COURT:  I will anticipate I would be able to rule immediately following the oral argument.
MR. TAIKEFF:  I would assume that Counsel would then be given some time to reflect upon Your Honor's ruling in terms of what has to be adjusted in the closing arguments. That's the reason why I bring it up what may seem to be a somewhat early time,so that there can be that period of {4200} reflection without interfering or delaying the proceedings then.
THE COURT:  I recognize the problem. It has always been my practice to get into matters of instruction until all the evidence is in so as far as Counsel are concerned --
MR. TAIKEFF:  We have no objection to that. We wanted to be in a position to make an early comment on the subject. Whatever the Court deems appropriate. As long as we have a reasonable amount of time it is of no concern to us. We didn't want the Court to feel that we brought the matter up in the eleventh hour and 59th minute and thereby interfere with the Court's anticipated schedule.
THE COURT:  What do you consider unreasonable time?
MR. TAIKEFF:  Overnight would be perfectly adequate, in fact quite adequate.
THE COURT:  I can see no problem with that request.
MR. TAIKEFF:  Thank you, Your Honor.
I'm wondering whether the government has available for the defense the AR15 which was recovered in Oregon. We intend to make use of that today.
MR. HULTMAN:  It is available.
MR. TAIKEFF:  I would just indicate that once the jury is brought in it would be appropriate if it could be in the courtroom because we're going to offer it in evidence.
MR. HULTMAN:  I would want to indicate on the record {4201} and undoubtedly we're going to have some resistance. We'll have it available but I'm sure we'll have resistance.
MR. TAIKEFF:  I certainly didn't mean by the government cooperating by bringing it here had to waive any legal rights.
Your Honor, there is something concerning Defendant's Exhibit 75 which in part is in evidence and in part is merely marked for identification and I wanted to take this opportunity to have a pre-offer ruling so as to eliminate legal argument at the time.
Your Honor, I have one more example of how fortunate we are to have Mr. Hanson watching over us all. Apparently what was originally Defendant's Exhibit 75 for identification, the entire 36 page 302 was modified by removing all pages but pages 1 and 2 which are in evidence. So that should be reflected in the record because I misspoke a moment ago.
MR. HULTMAN:  Which 302, Counsel, are you referring to?
MR. TAIKEFF:  Referring to the radio transmissions 302.
Your Honor, at this time I would ask for a pre-offer ruling concerning an entry at 1:26 P.M. which is a transmission according to the entry on page 4 of that 302, Adams to Coward.
{4202}
Now, your Honor may not have the entire document; but I have a copy here and I can hand it up to Mr. Hanson.
(Court examines document.)
THE COURT:  You may proceed.
MR. TAIKEFF:  In reviewing the transcript in preparation for summation, it is rather apparent that Agent Adams' position on the subject is that, "Yes, he did make a transmission concerning a certain vehicle, but that occurred at 1:30," which he relates to certain events which occurred, namely, somebody coming on the premises and then maybe a short time later, apparently under the watchful eye of the law enforcement officers.
As the record now stands, it could be argued more effectively by the Government than I think they are entitled to argue, that there was only one transmission and that a mistake was made by somebody somewhere, that didn't occur at 12:18 but it occurred at about 1:30.
As a result of our anticipation that that kind of an argument will be made, or at least could be made, we think it appropriate that we introduce into evidence that particular transmission of 1:24 p.m., which is undoubtedly the transmission that Adams speaks of as having been made at approximately 1:30.
However, with both of them in evidence, namely, the 1:24 transmission and the 12:18 transmission, the argument {4203} becomes much easier for the defense to make, and therefore, we would propose to offer that additional transmission; or if the Government feels it appropriate, any additional transmissions that should be offered along with it to supplement our body of evidence for the purposes of making the argument outlined to your Honor.
I think I may have -- because I don't have the document in front of me, your Honor -- I said 1:24, I think the time is 1:26.
THE COURT:  1:26 is the time.
MR. TAIKEFF:  Yes, sir.
That clearly, I think, is the transmission which Adams was talking about when he made reference to the 1:30 p.m. transmission.
MR. HULTMAN:  Counsel, is what you are indicating -- might I make inquiry, your Honor -- that the 1:30 testimony of Adams in effect is the 1:26 transmission, is that what you are saying?
MR. TAIKEFF:  Yes.
MR. HULTMAN:  One and the same?
MR. TAIKEFF:  Yes, I believe indeed they are one and the same. There is also additional testimony, as I recall from Adams concerning a person who arrived on the scene, was apparently not a person who was suspect in any way because he wasn't interfered with. He then left the scene {4204} shortly thereafter, and that testimony was said -- or rather those facts were said to have occurred at approximately 1:30.
At a different point in Adams' testimony -- and I believe it was on cross examination -- he explained that he did make a transmission about a pickup, but it wasn't at 12:18, it was at 1:30; and in fact he did, and that is the transmission; but I think it important for the jury to see and for the defense to have an opportunity to argue that there were separate transmissions, and in fact there was one at approximately 1:30 as he stated, but most importantly there was an additional one at 12:18; and if the jury doesn't have before it evidence of the fact that there are two separate recordations, then it leaves the Government in a position that they should not be in to argue that the time was recorded incorrectly, that there was only one transmission and there is a dispute about the time.
MR. HULTMAN:  I don't see any problem, your Honor. It is my understanding that it is that one line that you really want in; and if that -- I mean the time and what follows, and if that is true, the Government has no objection to that, your Honor.
I think the rest of the page, as indicated, is not requested; and the Government would concur that that time {4204A} and the info that does follow on that one transmission would be included, we would have no objection.
THE COURT:  m at paragraph on Page 4 of what was originally marked Defendant's Exhibit 75 under the time designation of 1:26 p.m., which reads as follows:  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? -- will be admitted.
MR. HULTMAN:  Your Honor, when I do look at some of the other items now on the page, and because there is another transmission at 1:31 which again includes Adams and goes to some of what counsel is referring, I think it might be wise and the Government would seek the whole page to come in. It might show the sequence a little better.
(Counsel confer.)
MR. TAIKEFF:  May I confer with Mr. Hultman for a moment? We might have a simple mechanical solution.
(Counsel confer.)
MR. HULTMAN:  Your Honor, I think now the Government and the defense are willing by stipulation to enter the first four pages, and then everything will be in sequence.
MR. TAIKEFF:  We are agreeable, your Honor; and may we suggest, if your Honor approves, that we merely take Pages 3 and 4 and supplement the existing exhibit. The {4205} record reflects, of course, what we are saying so there won't be any confusion in that regard.
THE COURT:  Very well. On agreement of counsel Pages 3 and 4 will be added to Pages 1 and 2, and the four pages will represent Exhibit 75.
 

TRIAL TRANSCRIPT