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

TESTIMONY GARY ADAMS..CONT
ONLY COLER'S VEHICLE FOUND NEAR BODIES {facing south}
SEES SIX OR SEVEN PEOPLE FLEEING OVER HILL AND HEARS SHOTS FIRED 5:45PM
ADAMS FINDS WILLIAMS VEHICLE TENT CITY AND TURNS OFF KEY
BODIES FOUND NORTHEAST SIDE OF COLER'S VEHICLE
ADMISSABILITY OF PHOTOS  B

THE COURT:  You have just experienced an example of the inability of the Court to keep the time schedule that it sets. I had originally stated that we would reconvene at 11:00 o'clock, but some matters came up which had to be handled and so we are 15 minutes late.
 You may proceed.
 (Witness resumes witness stand.)
 MR. SIKMA:  Your Honor.
 Q  (By Mr. Sikma) Mr. Adams, I want to go back with you a little bit -- during the course of the afternoon, the things {134} you testified to.
 Earlier you testified that Wallace Little, Sr., had driven into the area of the houses, is that correct?
 A  Yes.
 Q  Would you describe the type of vehicle he was driving?
 A  It was a red and white pickup. I believe it was a Ford.
 Q  And when he went out, did he have anyone with him?
 A  Yes. There were at least two individuals seated in the front seat of the pickup with him.
 Q  Do you know who those people were?
 A  No, I do not.
 Q  During the course of the afternoon were there any sounds other than gunshots?
 A  Yes. At some time during the afternoon I heard some loud explosions.
 Q  And where did these sounds come from?
 A  They came -- it appeared to me they came from in behind the -- south of the three residences, the log house, the white house and the green house, referring to Government Exhibit No. 71.
 Q  To the southeast of that direction?
 A  Yes. Yes, the south or southeast. I couldn't tell. They were loud explosions, shaking type of explosions, appeared to be dynamite.
 Q  Shaking types, you mean the ground shook?
{135}
 A  Yes.
 Q  I had one other question about the warrant that you had earlier.
 When you would go out to make an apprehension, do you have the warrant with you on all occasions?
 A  No. We are not required to have the physical warrant in our possession.
 Q  You indicated earlier that you had observed the area of the crime scene where the bodies were found and so on. Were a number of photographs taken?
 A  Yes, they were.
 Q  And are these photographs compiled in any book or anything?
 A  Yes, they are.
 Q  Are you familiar with these items?
 A  I have examined them, yes.
 Q  I would show you what is marked as Government Exhibit 54, and ask you whether or not -- I ask you to look at Government Exhibit 54 for identification, and ask you whether or not you do recall those photographs and whether they depict what you observed?
 A  (Examining).
 MR. SIKMA:  Your Honor, these matters, most of these photographs the Government and the Defendants have stipulated as to certain foundation. There are questions of relevancy, but otherwise stipulations have been made; {136} and we have a written stipulation prepared which has not been signed by all counsel.
 MR TAIKEFF:  We have so stipulated, your Honor, and we will sign the written stipulation.
 THE COURT:  Very well. This is as to the foundation?
 MR. TAIKEFF:  Yes, that's correct, your Honor.
 THE COURT:  Thank you.
 Q  (By Mr. Sikma) Do you recognize these photographs?
 A  Yes. The photographs depicted in Government Exhibit No. 54 are a fair representation of the crime scene as we found it.
 MR. SIKMA:  I would offer into evidence Government Exhibit 54.
 MR. TAIKEFF:  May I examine briefly, your Honor?
 THE COURT:  You may.
 MR. TAIKEFF:  Agent Adams, you can recall, can you not, the contents of Exhibits 6-a, b, c and d which are already in evidence as photographs?
 THE WITNESS:  Yes, sir.
 MR. TAIKEFF:  Are there any duplicates of those photographs?
 THE WITNESS:  Yes, I believe there are, sir.
 MR. TAIKEFF:  To the extent that they are duplicates, your Honor, I object.
 THE COURT:  Are there duplicates of the photographs?
 MR. SIKMA:  Yes, your Honor, there are duplicates; {137} but as a matter of using them, we can take them out insofar as later on going to the jury, but it is easier with regard to some witnesses who will testify to these items if we may maintain some of the photographs in a book and some independently as separate exhibitis for identification purposes.
 MR. TAIKEFF:  Perhaps, your Honor, it would be simplest if Exhibits 6-a, b, c and d were withdrawn, and the entire book taken into evidence; and then there would be one complete set of photographs.
 MR. SIKMA:  We would withdraw them -- we would like to use them for identification at certain times.
 MR. TAIKEFF. We would have no objection.
 MR. SIKMA:  You are indicating to withdraw the duplicates, is that correct, in the album?
 MR. TAIKEFF:  I was suggesting that the easiest thing would be to put the entire album in, withdraw the others from evidence; and they could be used for identification purposes because it would be more convenient to handle the individual photographs than the entire album.
 MR. SIKMA:  Your Honor, we would rather withdraw the duplicates from the album because the others are exhibits and we will be using them for identification purposes.
 THE COURT:  Exhibit 54 will be received with the {138} exception of any pictures in that exhibit which are duplicates of 6-a, 6-b, 6-c and 6-d.
 (Plaintiff's Exhibit No. 51, having been previously duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Sikma) O.k. Would you go through and describe on each page of that exhibit what the exhibits portray?
 MR. TAIKEFF:  Objection, your Honor. The photographs are in evidence, and they speak for themselves.
 MR. SIKMA:  Your Honor, I think that the witness should tell what each of these exhibits are and also should be able to testify, to identify them to the jury.
 THE COURT:  The witness may testify relative to the identity or what the pictures are. Otherwise the pictures would be meaningless, it would seem to me.
 MR. TAIKEFF:  That is not what I was I objecting to. I thought we were going to take a photograph at a time and give a detailed description. In view of the observation of many years ago that a picture speaks a thousand words, it is not necessary.
 MR. SIKMA:  I propose to have him tell generally for the jury, your Honor, what the pictures are so that the jury would be able to later look at the photographs and know what he is talking about.
 MR. TAIKEFF:  No objection, your Honor.
{139}
 THE COURT:  That procedure will be permitted, and you may proceed.
 Q  (By Mr. Sikma) Would you do that, Mr. Adams?
 A  Referring to Government Exhibit No. 54, Photograph No. 1 is taken from the rear of Agent Coler's car. It shows Coler's car as it was found and the two bodies of the two agents alongside the car.
 Q  Would you indicate where it was found and where that picture was taken from, by pointing to the map there, 71?
 A Agent Coler's car was found in this location (indicating). The bodies of the two agents were found immediately to the northeast of the car. The car was facing toward the direction of the houses, the log house, white house, green house on Government Exhibit No. 71. This photograph was taken from the rear of the car looking in a southerly direction.
 Q  Would you go to Page 2, please?
 A  Again referring to Government Exhibit No. 54, Page 2 is blank. Page 3 is a duplicate.
 Q  And which one is that?
 A  I believe 6-a.
 Q  Thank you.
 A  Photograph No. 4 --
 Q  (Interrupting) Would you remove that photograph of 6-a then?
 A  Photograph No. 4 is again of Agent Coler's car in the {140} condition we found it on that afternoon, and it shows the remains of Agent Williams and Agent Coler. It is taken from the northeast side, from just about where the arrow is that points from SA Williams and SA Coler, toward the car.
 Photograph No. 5 is a duplicate of Government Exhibit 6-d as in "David".
 Photograph No. 6 is a duplicate of Government Exhibit No. 6-b as in "boy".
 Photograph No. 7 is a duplicate of Government Exhibit No. 6-c.
 Photograph No. 8 is a photograph of Agent Coler's car as taken from the -- essentially the corral. That would be the southwest of the area marked Coler's car on Government Exhibit No. 71.
 Photograph No. 9 is a photograph of the rear area of Agent Coler's car -- shows the bodies of Agent Coler and Agent Williams, looking in a southeasterly direction toward the residence.
 Photograph No. 10 is a photograph of the front end of Agent Coler's car taken from more or less an easterly direction from the area marked Coler's car on Government Exhibit No. 71.
 Photograph No. 11 is a photograph of the rear window of Agent Coler's car taken from the left side of the car, left rear side of the car.
 Photograph No. 12 is a photograph of Agent Coler's car, {141} and that would be looking in the direction of the tan and red house as depicted on Government Exhibit No. 71. It would be again back from where there would be a small corral there then.
 Q  On that photograph what is the condition of the trunk of the vehicle?
 A  The trunk lid of Agent Coler's car was open when we found it.
 Q  This was taken from the side. Would you point out to the jury, by holding the photograph up in front of them so they can see where it is, and what the car is, so they will recognize this?
 A  I might continue, that Photograph 13 appears to be an enlargement of Photograph No. 12; and this is the side view of the car. The trunk is open, and you can see through the window the driver's door is open.
 Q  O.k. On the photograph on Page 1, would you go back to the photograph on Page 1, and also hold that up so that the jury will know the general area -- yes?
 A  This is the -- as I stated earlier, from the rear of the car. You see the trunk door is open, the driver's door is open, and you see the remains of the two agents on the side.
 Q  Would you hold it in various directions so that the jury is able to see it?
 A  (Indicating). As I stated, it appears Photograph No. 13 is an enlargement of Photograph No. 12.
{142}
 On Page 14 there are two photographs, both depicting the rear of Agent Coler's car, and looking up toward the residences marked "log house, white house and green house" on Government's Exhibit No. 71.
 On Page 15 there are four photographs. A is a close-up photograph of the trunk interior of Agent Coler's car. Photograph B is a -- it appears to be the windshield, a close-up of the windshield of Agent Coler's car. Photograph C is a photograph of the green house which is the far right house in the group of three houses on Government Exhibit 71. This shows also the remains of Joe Stuntz, and Photograph D is a photograph of a revolver which was -- and it is on a blanket or quilt, which was taken or was with the remains of Mr. Stuntz.
 On Page 16 there is a -- it is a photograph of a -- appears to be a hubcap, and it has several spent cartridge casings in it.
 Photographs B, C and D are of Mr. Stuntz, and it depicts he has a jacket with the insignia "FBI" on the pocket. It is a green military fatigue type jacket.
 The photograph on Page 17, there is one photograph, and it is of the white house, the Jumping Bull residence which is in the middle of the three residences on Government Exhibit No. 71.
 On Page 18 there are three photographs. A is the -- A {143} and B both appear to be garments that were found in the vicinity of the crime scene, and Photograph C is the checkbook and some other papers belonging to Agent Ronald Williams.
 Q  In the afternoon did you have occasion -- you indicated earlier that you had occasion to go to the area of the residence. About what time of the day was this that you went to the residence?
 A  I estimate the time to be about 6:00 p.m., when we went into the residences.
 Q  O.k. Was anyone there other than law enforcement officers when you arrived?
 A  No, there was not.
 Q  Did you -- you indicated that on one of the pictures you observed a -- the remains of a Joe Stuntz?
 A  Yes.
 Q  Would you describe to the jury where he was -- where you found him in relationship to Government Exhibit 71?
 A  Referring to Government Exhibit No. 71, Mr. Stuntz was found right on the northeast corner of the green house.
 Q  O.k. Now, there is an indication on the map there, is it, that says "body of Joseph Stuntz"?
 A  Yes, that's correct. That's printed on Government Exhibit No. 71.
 Q  And would you indicate how his body -- what position it was in?
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 A  His body was face up, and to the best of my recollection his head was facing in a northerly direction.
 Q  And what was he wearing at that time?
 A  He had on -- to the best of my recollection he had levi trousers on, and he had one of our FBI Squat jackets.
 Q  Did it have anything to identify it as FBI?
 A  Yes, it did on the pocket. In the vicinity of -- the left-hand side, in the vicinity of the pocket it had the letters stenciled "FBI".
 Q  Can you state whether or not you observed any firearms in this area of Joseph Stuntz' body?
 A  Yes. He had a revolver, and there was a 3.30 rifle in the immediate vicinity of his body.
 Q  Where was that rifle in relationship to his body?
 A  To the best of my recollection it was on his left-hand side. I don't really recall that, but it was right alongside the body.
 Q  Approximately how long did you stay in the area of the -- in the area of the houses?
 A  I was only there a brief time, and then I went down to the vicinity of the area of Coler's car and the remains of the two agents.
 Q  Now, I would direct your attention to earlier in the afternoon. Did you have occasion to see any other persons in the area to the southeast and across Highway 18 to the east, {145} any other persons in that vicinity?
 A  Yes.
 Q  Approximately what time was that?
 A  It was about a quarter to 6:00.
 Q  And would you describe for the jury what you saw and how it came about that your attention was directed to that time and place?
 A  Yes. I received a radio communication over the State radio that there were some individuals fleeing out of the south -- well, out of the south end of this wooded area; and I at that time heard gunshots, appeared to be firing. I looked up and saw some individuals fleeing up the side, across this area (indicating), up on to the south.
 Q  And how many did you see?
 A  I personally counted six or seven. The radio communications said there were 11 or 12, or 11 to 15, I don't recall. I just glanced up there and happened to see six or seven people running out of the area.
 Q  Were they carrying anything?
 A  It was about a mile and a half or so away. I didn't pay too much attention to them because we were attempting to secure the residences at that time.
 Q  Where did you go after you left the residences?
 A  After I was in the vicinity of the residences and Agent Hughes was going to secure the crime scene area, I, along with {146} some other law enforcement people, decided to sweep the wooded area to the south of the residences and attempt to locate the persons who were the perpetrators of the crime.
 Q  Is there anything in the wooded area -- describe the wooded area, first of all, for the jury, if you will.
 A  It is heavily wooded. There is a lot of underbrush in there, and through the area, which is marked "wooded area". The White Clay Creek flows in a zigzag fashion. It empties into Oglala Dam which is in the northwest area, and it goes back and crosses the highway in the southeast area.
 Q  What is the elevation of the ground at the treeline or just below the treeline on the map?
 A  Again the area drops off into the creekbed. There is a plateau in the vicinity of Agent Coler's car to the -- where it is marked "plateau", and it rises up to Highway 18; and similarly, to the treeline the area again drops down to the creek area.
 Q  How far does it drop down to the creek area, is it a sudden drop?
 A  In places it is rather severe, and I would estimate it to be about 10 feet. It varys throughout the location. Some places it is deeper, and other places it is not so deep.
 Q  Is it fair to state -- you can tell me whether or not it is fair to state -- if you are in the wooded area you can't see out onto the plateau or up higher?
{147}
 A  That's correct. It is heavily wooded in most of the areas, and it is difficult to see in or out.
 Q  Approximately how long did you stay in the wooded area, and tell us what you did while you were in the wooded area?
 A  There were 10 or 15 law enforcement officers with me. We left the area, entered into the wooded area. As I said, the creek zigzags across the wooded area, referring to Government Exhibit 71.
 Q  You entered where, what is on the map that would indicate approximately where you entered?
 A  To the best of my recollection we just came down from the three houses here as indicated and into the area right here (indicating).
 Q  That's at the top of the plowed field?
 A  Yes, little area marked "plowed field" here (indicating), which is southwest of the three residences. To the best of my recollection we entered into that immediate vicinity there and proceeded down the creek area.
 Q  And what, if anything, happened while you were there?
 A  We spread out through here (indicating), and proceeded to work this area. Somewhere in this area here (indicating) -- I don't know the exact location -- I crossed the creek several times with other individuals where the water was about waist deep, and one time when I was crossing the creek I slipped and received a severe cut to my hand. At that time they decided {148} that I should have medical attention because it was bleeding quite severely, so I left the group and proceeded to what I thought to be Highway 18.
 Q  Which direction did you go?
 A  I went more or less in an easterly or northeasterly direction. From my orientation I had when I was in the trees, I felt that the Highway 18 would have been in a northeast direction and so I headed that way.
 Q  O.k. Now, you were in the area there which is a larger square "plowed field", is that correct, to the west of that?
 A  Yes. I was past that because when I walked out, I walked out through the trees and I came out in this vicinity right here (indicating).
 Q  In that vicinity where you are pointing is SA Williams' car?
 A  Yes, that's correct, so indicated on the map.
 Q  O.k. Tell the jury what you observed as you were going through the area back to Highway 18.
 A  As I was leaving the wooded area here (indicating), my attention was drawn as I proceeded out of the area to some loud radio transmissions.
 Q  And tell the jury what happened.
 A  I came into this area here (indicating), and I first observed a red and white van parked in the area. Then I observed some tents in the area. I saw a green car parked {149} behind the van. I didn't know what it was, or if anyone was there. From an examination of the area from the edge, it appeared there was no one around there. I then proceeded around here (indicating), and found Williams' car.
 Q  O.k. You are speaking then of the area which is marked "tents" and it is a cross-thatched area on the upper right-hand corner of the map in the wooded area, is that correct?
 A  Yes, on Government Exhibit 71.
 Q  O.k. Would you describe to the jury what the red and white van -- what the condition of it was?
 A  It was parked in front of the green car and facing -- it was on a little road in there (indicating), and it was facing in a west or southwesterly direction. The back gate of the van was open, and there was a lot of items stacked in the back of the van.
 Q  O.k. You have indicated there by a movable red magnetic object, is that correct?
 A  Yes, that is correct.
 Q  O.k. The other object which is green, which is directly behind it, is the green car that you observed?
 A  Right. On that particular afternoon I only recall -- I don't remember it to be a Ford. All I remember, there was a green car parked behind the red and white van.
 Q  Would you recognize it if you saw a photograph of it?
 A  Subsequent to that I found the same car in the same {150} location, yes.
 Q  Would you describe -- tell the jury whether or not you saw any items in the red and white van?
 A  Yes. There were several items, a lot of various items stacked in the rear of the van. I didn't at that point, didn't pay too much attention. I was concerned if somebody was in there, and I didn't scrutinize in any -- spend any time determining what was in the back of the van.
 Q  Would you describe where the other automobile, you said you heard the radio, the sound of a radio. Tell the jury where that was.
 A  There is a rise out of the treeline up on another plateau here (indicating), and Agent Williams' car was parked right up at the edge of the treeline, visible from both these two cars and the tents that were situated in the area.
 Q  And you say from back in the area of the tents you could hear the radio communications?
 A  Yes. They were on rather loud. The windows were down or either shot out. You could hear the radio transmissions for some distance.
 Q  Was there a door open on the car?
 A  To the best of my recollection, the right front door may have been open, yes.
 Q  And would you further describe the car as you observed it?
 A  There were numerous bullet holes in the car all the way {151} around the car. The glass was shot out. The car had numerous bullet holes in it. There was on the front seat floor -- his briefcase was there, and the papers were strewn around; and in the back seat his clothing was strewn around, and possibly a suitcase had been opened.
 Q  Are there photographs of this automobile which will depict what you observed?
 A  Yes, there are.
 Q  And its general condition?
 A  Yes.
 Q  Are there photographs also of the area of the tents which you were familiar with?
 A  Yes.
 Q  I will show you first what is marked Government Exhibit 55. I ask you to look at Government Exhibit 55.
{152}
 Did you have occasion on the following date to go the area which is marked "tents" on Government Exhibit 71?
 A  Yes. I did.
 Q  And when you returned to the area that following day were things in the same substantially, or in the same condition that you found them the day --
 A  It appeared to be in the exact same condition as when I left it that night before.
 Q  What did you do as far as the car was concerned, Special Agent Williams' car? Did you do anything with it?
 A  Yes. I went, as I left the area I went to the driver's side of the car, reached in, turned the keys off which activated, which would deactivate the radios and then I left the area.
 Q  In the Government exhibit for identification which you have in front of you, does that, do those photographs represent what you observed in your investigation of the area of the tents on the following day and on the day before?
 A  Yes.
  Referring to Government Exhibit 55, they depict the area as I saw it initially on the night of the 26th and again on the early morning hours of the 27th of June, 1975.
 MR. SIKMA:  Your Honor, I would offer into evidence Government Exhibit 55.
 MR. TAIKEFF:  May counsel have a moment to look at it, {153} Your Honor.
 THE COURT:  Yes.
 MR. TAIKEFF:  Your Honor, there are many photographs in here. Most of them are not objectionable from the point of view of the defense.  A few are.
 Does Your Honor wish at this time to hear counsel or should we reserve that for a convenient time when the jury is not present?
 THE COURT:  Are you able to identify the photos which at this time you may have some objection?
 MR. TAIKEFF:  Yes. I am.
 THE COURT:  Would you state that for the record.
 MR. TAIKEFF:  Yes, Your Honor. I would.
 Yes. I think it would be appropriate, Your Honor, if we approached the side bar even for the identification purposes.
 THE COURT:  You may approach the bench.
 (Whereupon, the following proceedings were had at the bench:)
 MR. TAIKEFF:  Our objection, Your Honor, I want to state that if we identify it when we object and Your Honor overrules our objection, the jury would then specifically know what our concern was.
 THE COURT:  Very well.
 MR. TAIKEFF:  Your Honor, on page 13 there are two photographs marked C and D.
{154}
 MR. LOWE:  The picture with the three, maybe they can explain --
 MR. TAIKEFF:  Well, let's pass that for the moment.
 Those two photographs depict homemade explosive devices.
 On page 15 there are four photographs which are of a similar nature or relate to those devices.
 On page 16 there are four more photographs depicting those devices.
 On page 17 there are two photographs which are A and B depicting those devices. I can't tell what --
 MR. LOWE:  That's a compass and that's a canteen unless you want -- can you represent what this is?
 MR. SIKMA:  I believe it is a flare.
 MR. TAIKEFF:  Could you tell us what photograph B on page 19 is?
 MR. SIKMA:  Yes. That is from the area just across the creek by where the individuals, I believe the evidence will later show, went, are cartridge casings which are found and marked and I don't have on the top of my head the exhibit number.
 MR. TAIKEFF:  They're not explosive components?
 MR. SIKMA:  No. They are not. It's an empty shell casing.
 MR. LOWE:  I think we should add a general statement {155} to the extent that any of these pictures depict such an explosive device that are not immediately, some of these pictures are not immediately, we would object to them at least so far as they describe in such terms
 MR. TAIKEFF:  I think we identified them all to Your Honor.
 Our position is that they're not relevant to any of the charges in the indictment.
 MR. LOWE:  There's no showing that they were used, there's no showing that the defendant had any knowledge that they existed in the camp.
 MR. TAIKEFF:  It makes no difference. Even if he did, Your Honor, the point is that they're not relevant to any of the issues in the case and in any event they would constitute proof of a connection of another crime if the jury should connect them to the defendant, a crime not charged in the Indictment and they are prejudicial.
 MR. SIKMA:  Your Honor, the defendants have indicated clearly that they intend to show that the defendant was living in this area, that he was in the area on the afternoon in question, that he's agreed that they were there but they were there for a friendly purpose, a, to help various people.
 It certainly does go to show the state of mind, the defendant is in this area where these are filled with gasoline and the record will show they are Molotov cocktails, common term, {156} and I think that if the state of mind of the defendant is going to come up, that these sort of things are certainly relevant to the issues before this Court. They do show his state of mind.
 Molotov cocktails are generally not used in defensive means to protect oneself. They are generally used more in an offensive manner than a defensive manner to protect someone from massacre or something of this nature and therefore we would think that they are very relevant and they are also relevant to show the place as it was left, found at the time the incident occurred or shortly thereafter.
 THE COURT:  What was your last statement?
 MR. SIKMA:  They show the general nature and condition of the area as it was left immediately after the incident.
 MR. TAIKEFF:  There is one point I'd like to respond to, Your Honor. The Government has articulated our position in a way that does not describe our position.
 We do not take the position that the defendant and his associates were unarmed or that they were peaceful people in a way that they would not touch any instrumentalities or violence or guns or anything of that sort. Quite the contrary.
 I can issue to Mr. Sikma and I represent to the Court that our proof will be that our client and his fellow workers were heavily armed and there will be no effort to deny that or to adduce proof to the contrary by the defense.
{157}
 The point we're making is that within the spectrum of instrumentalities there are certain instrumentalities, the possession of which is a separate federal crime and since there is going to be and there's already on the record an admission of being heavily armed it is not necessary for the Government to prove the contrary because we're going to admit to the heavy armament but to introduce that instrumentality which is a separate crime under Federal law is prejudicial if it is relevant to be in with and that's proof of another crime that is not related to the charges in this Indictment in any way.
 THE COURT:  Well, how is it prejudicial if the jury doesn't know that it's proof of another crime?
 MR. LOWE:  Well, it is because it tends to indicate something -- first of all bypass for the moment whether it's relevant to the charge. Unless there is, some mention is created where Mr. Peltier, that he knew they were there, Mr. Peltier will be unfairly charged with the knowledge of them.
 Now if you are going to introduce a witness that says that Leonard Peltier knew they were there and, but I ask for an offer of proof from the Government that they intend to introduce such testimony and tell us who it is because I think that might change the Court's ruling on it.
 But it's highly prejudicial. The word Molotov cocktail means a lot of terms but I think it's one of the scariest {158} terms in the English language for most low-class people and Mr. Sikma is the only one who contends that it's primarily offensive and not defensive.
{159}
 In fact in the history they've been defensive. For example, in history the Russians came in with their tanks and they used them. In almost all of history they've had guerrilas who were resisting the strong force but in any event it's simply not, it's inflammatory and at least the prejudicial value outweighs the motive value, particularly where I think we're making it clear to Your Honor that the only issue that's going to be in dispute in this case is what the identity of the actors was out in the Pine Ridge area where these agents met their deaths and these can not be probative of these facts.
 MR. CROOKS:  Well, Your Honor, it seems to me that the very fact that the defendant is objecting to this proves the relevance of the thing, that counsel is, counsel is in effect conceding with us that it is relevant. Otherwise they wouldn't be concerned about it and as Mr. Sikma said, we are talking in this case about state of mind and that's going to be the defense. They've indicated that numerous times already on voir dire and on opening statement and certainly the fact that these items were items which were in the place where he was living, which he would have had access to is very definite and the specific relationship to his state of mind to refute in effect any argument that this is more or less a peaceful camp.
 We're talking about, we're talking about a camp that's armed with numerous deadly weapons and that's the way the camp was left and I think it certainly is a factor which the jury can {160} consider in determining whether or not they were reacting to a quote, unquote, "self-defense initiative" or whether they were simply there in an aggressive posture.
 This has a very direct bearing on state of mind.
 MR. HULTMAN:  Your Honor, might I enter just one sentence.  Counsel in opening statement indicated with a number of statements what he expected to prove, that there was a peaceful encampment.
 MR. LOWE:  I did not say that. I specifically avoided that.
 MR. HULTMAN:  Let me refer to it.
 MR. LOWE:  Well, at least be accurate.
 MR. HULTMAN:  He specifically referred to the fact that there was some types of bath activity, there was a number of other things.
 This proof goes to clearly refute the primary propositions that counsel has indicated are a critical part of their defense and the Government certainly has the opportunity and the right and it's relevant for that reason if no other reason.
 MR. SIKMA:  It's also there, to say that they're simply armed and not show how is misleading. It's misleading.
 MR. LOWE:  You can show all the guns you want.
 MR. SIKMA:  Well, of course, but they weren't only {161} armed with guns.
 MR. LOWE:  Are you making an offer or proof that anybody used one of those on that day? Will you make --
 MR. SIKMA:  No. I don't need to.
 MR. LOWE:  The tent area is about two hundred yards long and a hundred yards wide. This is not a little patch ten yards by twenty yards with a couple people in pup tents.
 To attribute the knowledge of information or items in one part of that forty thousand square yard area to Mr. Peltier without evidence would be the worst possible form of prejudice without any basis of fact so that even if Your Honor says, well, it would be relevant, if you connected to Mr. Peltier, at least an offer of proof how they're going to connect it to Mr. Peltier or to somebody else in this case. They can always at least offer --
 THE COURT:  How will you be connecting this defendant?
 MR. SIKMA:  Your Honor, one way and a couple of ways. Number one, I think our evidence will show that he was a leader of the people that were here; number two, his fingerprints are all over the area on a number of items and I don't know --
 MR. TAIKEFF:  On any of these items?
 MR. SIKMA:  I don't know specifically but these were left right out in the open. They were laying out in the open when they were found just as they're seen there and as a result of this he was in that area that day, slept there for, stayed {162} there for days and it would be from the photographs, looking at all the photographs it would be inconceivable that he would, he would not know that these items were here if he was in the position that he maintains, he was one of the leaders there.
 MR. TAIKEFF:  It shows a Cola 6-pack which overall is not more than twelve by seven by ten inches high in an area of several hundred yards by --
 MR. SIKMA:  No. Wrong.
 MR. TAIKEFF:  We're talking about --
 MR. LOWE:  That's what it depicts, your exhibit, Mr. Sikma.
 MR. SIKMA:  No. Look at the photographs and you'll see --
 MR. LOWE:  Look at your exhibit you've introduced and you vouched for the foundation or the accuracy within five per cent.
 MR. SIKMA:  We'll check with the witness.
 MR. TAIKEFF:  This is the entire objection we're talking about, Your Honor, which is depicted on page 13 in photograph D. It's a very small object. We don't know who left it there, which individual or even whether that individual was a member of that encampment.
 If any, any other person leaving the area in passing through that zone, there has already been testimony and it will be elaborated upon in cross-examination that there were large {163} numbers of people including the number of people who are living in the, or staying in the area who were seen coming through or leaving the area. We don't know who put that there and whether that person was a member of the community, if I can call it that, that was living in tent city and just because it was there they wanted to introduce it and it is a highly prejudicial thing to show to the jury, not in any way connected with the evidence offers which are under scrutiny.
 If it were charged or alleged that in the process of attacking the agents such devices were used against the agents, then most assuredly that would be proof, that would be quite relevant and quite significant but the mere presence of that in that location, because the defendant had stayed there, is not a basis for offering it.
 MR. SIKMA:  There were explosions there also, Your Honor, some other types of things and there will be other evidence that the explosions came from this area.
 THE COURT:  I will reserve ruling on the pictures to which objections have been made and will rule on it and they may be reoffered later when there's been some --
 MR. LOWE:  In rebuttal, Judge, we may open the door to them. That's another possibility.
 THE COURT:  At this time I'm reserving ruling.
 MR. SIKMA:  May I retain these in the book?
 MR. TAIKEFF:  We have no objection.
{164}
 THE COURT:  You may retain them.
 (Whereupon, the following proceedings were had in the courtroom in the presence of the jury:)
 THE COURT:  Exhibit 44 with the exception of photos 13, 15, 16 and 17 is received and the Court reserves ruling on the photos on the pages enumerated.
{165}
 Q  (By Mr. Sikma) Mr. Adams, would you take this book and set the pages which are indicated, I believe it's 13.
 THE COURT:  13, 15, 16 and 17.
 Q  (By Mr. Sikma) 13, 15, 16 and 17. Indicate what you observed on those pages in the book.
 A  Referring to Government Exhibit No. 55.
 Q  Would you also on these larger photographs make it so that the jury can get an idea what you're talking about then.
 A  On the photograph on page 1 is an aerial photograph through the trees into what is referred to on Government Exhibit 71 as the tent area. If you look closely you can see part of one tent there. Likewise to the photograph depicted on page 2.
 The photograph depicted on page 3 is a teepee, one of the tents I referred to that were located in the tent area.
 Photographs on 4 and 5 are also of the tents which we found in that area.
 The photographs on page 6 and 7, this is of the tents in the general area. This is looking into the interior of the teepee, I believe, at least one of the tents in the tent area.
 The photographs on page 8 is looking into the interior of one of the tents.
 On page 9 there are four photographs so identified by the letters A,B,C and D. They are all of the tents in the general area there.
 The photographs on page 10 marked A, B, C and D are {166} again photographs taken in the tent area. There was one little red and white, or orange nylon tent in photograph A. There's a wall tent in photograph B and photograph C was a cooking area, fire pit and a, appears to be the making of a shade, a structure they use, put poles up on stilts, lay tree boughs across the top and it keeps the sun from penetrating underneath. The photograph identified by the letter D is a, appears to be a lodge type tent. This was located some short distance from the other tents and was by the creek.
 The four photographs on page 11, there are three photographs, A, B and C -- excuse me, A,B and D are photographs of tents. The photograph marked C is of the green Ford automobile located in the tent area and some items that were found on the hood of that car.
 The photograph on page 12, four photographs marked A, B, C and D. Photograph A and C are photographs of some rifles and weapons we found in the vicinity of the tents. Photograph B is again of the green Ford automobile and photograph D is a photograph of a backpack.
 THE COURT:  On page 13 I believe the objection went only to C and D.
 A  All right.
 Photographs A and B on page 13 are of, photograph A is of some weapons that were stashed in the underbrush there. Photograph B is a photograph of a knapsack or some kind of a {167} backpack or bag that has some ammunition in it.
 THE WITNESS:  14 was all right, is that correct, Your Honor?
 THE COURT:  There was no objection to 14.
 A  On the four photographs on page 14 marked A,B,C and D are all of rifles that were recovered in some of the underbrush area.
 Q  (By Mr. Sikma) Would you tell where those rifles were found generally?
 A  I believe these pictures depict rifles that were found in the, in the trees between the tent area and the creek, the best of my recollection.
 15 is -- on 17 I guess.
 THE WITNESS:  The whole page 17?
 THE COURT:  The objections on 17 went to A and B.
 THE WITNESS:  All right.
 A  The photograph marked C and D on page 17, photograph C is a stick of dynamite that was found in the area and photograph 2 is a, D is a photograph of the canteen that was found in the area.
 18 is again, there are three photographs, A, B and D. A is is the markings on one of the tents in the area, B is the photograph of the general area showing the teepee and photograph D is on the neck scarf, or appears to be a red handkerchief, neck scarf, something, and some items of clothing {168} which were found away, found in an area leading from the tent area.
 On page 19 there are four photographs. Photograph A is a red shirt that was found in the area. Photograph B is a cartridge casing, appears to be a 44 caliber which was found in the area. C and D appear to be a couple address books.
 On page 20 there are three photographs, two marked with the letter A and the one B. The first one is, it shows the name Joseph B. Stuntz on a Delta Airlines, some kind of a Delta Airlines card. It has a photograph and also marked A appears to be that of Mr. Stuntz and on photograph B marked B is a selective service card for Joseph B. Stuntz.
 The photograph on page 21, here, the big photograph, is of two new tires that were taped together that were in Williams' car that were recovered out of the back of the van.
 Q  They were found where?
 A  In the back of the red and white van.
 The photograph on page 22 is a shipping tag or an address tag that were on the tires that apparently was placed on there by the office in Minneapolis and the tires have been sent to us in Rapid City.
 Q  Whose tag is that?
 A  It says, "Special Agent, FBI, U. S. Courthouse, 260 Federal Building, 515 Ninth Street, Rapid City, South Dakota." That would be our office in the courthouse in Rapid City.
{169}
 Photograph 23 is again of the green Ford with the items as found on the car.
 Q  Now is that the way you observed, can you tell whether or not that's the way you observed those items on the 26th when you went through there in the late afternoon?
 A  As I stated, I saw the car in there and I know there was a rifle on the hood of the car and as far as identifying the other items on that night, that's as far as I could go.
 The photographs on 24 is of a Commando Mark 3 which was found under bark and brush in the vicinity of the tent.
 The photograph on page 25 is of, again of some kind of canvas type bag which contains some ammunition.
 Both photographs 26 and 27 are again photographs of some rifles which were found in the vicinity of the tent.
 Photographs on 28 is a stick of dynamite. This was a compass that was placed there by the agent or one of the agents that was taking the photograph showing the size of the stick.
 The other one, photo 29 on page 29 is a canteen that was found in the area.
 Photo 30 is again of the red handkerchief, possibly neckerchief type thing and some other items of clothing that were found in the area.
 Photograph 31 is a picture of the red and white van. This photograph was taken after the vehicle was removed from the tent area and in a compound in Pine Ridge. It's B & U Compound, the {170} location.
 32 and 33 are again photographs of the van, 32 being the front end of the van with the license plates, 33 is a side shot of the van.
 34 again is a side shot of the van.
 35 has six pictures. Photograph A is the front of the van, photograph B the rear of the van, photograph C, D, E and F are all photographs of items removed from the rear of the van. It appears to be some kind of electronics gear.
 36, six photographs. Photograph A is again of the rear of the van with some of the items of electronic gear in the van. Photograph B is the rear of the van, photograph C is the side of the van and the same way with D, E and F. Photographs of the side of the van.
 On page 37 all six photographs are of items removed from the rear of the van. There is electronic gear again, the photograph of the tires that were in the back of Ron Williams' car.
 Page 38, one photograph marked A of tires belonging to the FBI.
 Photograph on page 39, photograph A, F and I, also E are of various shots of Agent Williams' car as it was found on the 25 and 26th of June, 1975.
MR. TAIKEFF:  Your Honor, may we approach the bench?
 (Whereupon, the following proceedings were had at {171} the bench:)
 MR. TAIKEFF:  Your Honor, the application is made upon the assumption that the misstatement of fact by Mr. Sikma was inadvertent and not to be interpreted otherwise.
 When we went through the book of photographs which the agent has just finished describing, I asked Mr. Sikma what a certain object was and he said it was a flare. I believe indeed he thought it was and I thought it was but I wasn't sure, and it may very well be. As a result it now appears that that object which apparently appears in two places was a stick of dynamite. Now under the circumstances I think it would be appropriate the government would recognize its error was the basis for that piece of testimony and if Your Honor would instruct the jury that the witness was mistaken and that government concedes what he thought was dynamite was a flare and leave the matter at that.
 MR. SIKMA:  Your Honor, the defense counsel has seen these pictures and had opportunity to look at them last night and go over them. It's agreed that I made a mistake on it. He's testified already that he heard dynamite being exploded.
 I wasn't sure what it was. It was a mistake on my part but I don't think -- I think I can get experts to come in and show there was dynamite there.
 There is one thing with the defendant saying, "We'll admit that these defendants were armed," but throughout the {172} entire proceedings they're trying to leave a false impression with this jury. The true impression is they weren't merely armed, there was dynamite there, there were Molotov cocktails there.
 MR. TAIKEFF:  Your description can be heard.
 MR. SIKMA:  I think it's important there were hand grenades in the various areas in possession of people involved in these events and I think that it's important to note and make the jury aware of what the state of mind of these individuals was.
 We're not contending that one individual committed this offense, we're contending that the defendant aided and abetted in that offense and that he was a part of a conspiracy involved in this event. I think that these things are relevant. I don't think this, I think there is sufficient showing at this time that the defendant, and from the proffer made by the defense counsel that this man, they objected to what I said in opening statement that he lived there a couple weeks, indicated that he had lived there for a couple months instead of a couple weeks.
 We have seen the number of tents there are. I'll go into that. It wasn't a city of tents. There were about, I think, five or six tents there at the very most.
 Now I think the evidence will show later on that there {173} were only about at most ten people living there. Many of the witnesses who lived other places will indicate they didn't go down there. It wasn't something that was generally known, something that surprised this witness. He didn't know it was, so for this reason I would say that there is absolutely no prejudice and it's essential this information come before the jury in light of the lines that have been drawn by defense counsel in their presentation of this case.
 THE COURT:  On the basis of the testimony that there were explosions, what objection do you have to this evidence, this testimony standing?
 MR. TAIKEFF:  The explosions may have occurred but that doesn't tell anyone what the source of those explosions were.
 THE COURT:  It would be a reasonable inference that dynamite would be a source.
 Your objection is overruled.
 MR. LOWE:  I'd like to make a record. You said you would reserve ruling on a motion and that this testimony was brought out in direct violation of this ruling. I think that's a bad precedent to set this early in the trial that Counsel would be insensitive to being sure that would not happen.
 THE COURT:  I reserved ruling on specific pictures to which objections were made.
 MR. LOWE:  Yes, sir. I specifically objected to any {174} other pictures which depicted explosive devices and were not readily identifiable as such.
 MR. TAIKEFF:  Specifically had the answers been correct, I most assuredly would have included that picture in the list of pictures. That was the purpose of asking that --
 MR. LOWE:  I wonder if we could offer proof. Maybe it is a flare.
 MR. SIKMA:  We'll go into it later with another witness.
 MR. LOWE:  I want to know if it's proved. Make an offer of proof.
 MR. SIKMA:  I don't have to make an offer of proof, Your Honor.
 Counsel's demanding I make an offer of proof at this time. I think there is sufficient evidence to show in this area right by the crime scene individuals were running out of here from the opening statement. Unless the opening statement is not any indication at all what the defendant's theory is.
 MR. LOWE:  You missed my point. I made an offer of proof to show --
 THE COURT:  The Court has reserved its ruling on the pictures to which specific objections were made. There is no way that the Court can act on an objection on any other pictures that might show thus and so.
 MR. LOWE:  Judge, I think it's reasonable to ask the government represent to you that at some time during this trial {175} they will testify that object was a stick of dynamite. That's very reasonable.
 THE COURT:  This witness has just testified to that.
 MR. HULTMAN:  A lay witness can, if a stick of dynamite was sitting there right now --
 THE COURT:  You may cross-examine, but this witness has testified to that and that's all that's required, the testimony of one witness.
 MR. LOWE:  This is the purpose of our making such motion. I would hope in the future the government would obey the Court's order.
 MR. SIKMA:  We have had some other things here. You've indicated that a stipulation for the last three weeks, that you are stipulating to foundation. We get up here and foundation objections are made to these very photographs.
 MR. TAIKEFF:  Not yet. You might be watching another trial, Mr. Sikma.
 MR. HULTMAN:  Your Honor, just so there is no misunderstanding, one, all of the exhibits that are involved here are not new to Counsel. In fact they have been exhibits in another trial. Two, we set down weeks ago an exhibit list specifically with the items which Counsel has had an ample opportunity through their investigators and through Counsel themselves to view every single one of those. Last night again we sat down. {176} Counsel had still another opportunity. Today in this courtroom Counsel has had an opportunity to specifically look at the photos, make whatever objections that they had and that is the manner in which we agreed to proceed.
 MR. LOWE:  That's the entire description right there.
 MR. SIKMA:  They had been available to you all the time.
 MR. LOWE:  We take your representation --
 MR. HULTMAN:  Look at the rest of the photos today one more time, John.
 MR. TAIKEFF:  Anyone who read our trial memorandum could not misunderstand that our position was that every item of that nature was objectionable, so if the government accurately represents the kind of pretrial activity that went on and consistent with that and in the spirit of which it occurred, we gave advance notice of virtually 75 or maybe 90 percent of our objections in the course of the trial in advance, in writing so there'd be no misunderstanding about it. Now that doesn't mean we're limiting ourselves only to those objections, but surely an examination of that memorandum would show every single explosive device identifiable was indicated and an item we would object to and we took the precaution of coming to the side bar in advance. So to the extent that the government is saying we have not objected properly, I don't think that they make a proper statement and I think that our position is clear that the devices which in and of themselves are of a crime to {177} possess, if they are not directly connected with the defendant and with the issues of this case we first and foremost object on the grounds of relevancy and in the alternative object on the grounds of prejudice and we're willing to stipulate any fact necessary to avoid the prejudice.
 MR. LOWE:  May I suggest something:  we're three minutes from the lunch recess. Could we excuse the jury and have a voir dire?
 MR. HULTMAN:  The government objects to any voir dire.
 MR. LOWE:  Perfectly proper voir dire when you have a foundation issue raised. That will clear the issue up for the record whether it is or not.
 MR. HULTMAN:  That question has been asked and answered already, Your Honor.
 THE COURT:  The Court will recess at this time and we will reconvene. Of course, the jury would not be brought in under the procedure that I have set up. At that time you'll be permitted to voir dire this witness.
 MR. LOWE:  Thank you, Judge.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 THE COURT:  This Court is going to recess at this time until 1:30 this afternoon and I remind you of the admonishment that I have mentioned a few times on preliminary instructions. That is, you must keep an open mind in this case, not to form {178} any conclusions until after you have heard the entire case and have been instructed on the law, heard the arguments of the lawyers. And furthermore, you should not discuss it with anyone. I realize that because of the sequestered nature of the jury you have limited opportunity to discuss it with anyone, but you shouldn't discuss it among yourselves.
 Court is in recess until 1:30.
 (Recess taken.)
 
 

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