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

SA GARY ADAMS..CONT
{BENCH} A
RESUME TESTIMONY  B
{BENCH}  C
CROSS EXAMINATION  D

VOLUME 2

(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
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 THE COURT:  Members of the jury, the Court did in fact reconvene at 1:30. I give you this just for your information. But we have been involved on legal problems which, as I have previously indicated to you, will arise during the course of this trial and that accounts for the delay in the jury coming in.
 THE COURT:  You may proceed.
 MR. SIKMA:  Thank you, Your Honor.
 Q  (By Mr. Sikma) I will show you what is marked and received into evidence as Government Exhibit 55. Now it's entitled "Tent City." Would you state for the jury if there are items in there which were not found right in the area, in the tent area itself?
 A  Yes, there are.
 Q  Would you point those out to the jury, please, and tell the jury what they are.
 A  Referring now to Government Exhibit No. 55. On page 17 the two photographs marked A and B, excuse me, C and D and there are enlargements of these photographs on pages 28 and 29.
 The photograph on 28 corresponds to the photograph on page 17 marked C. and the photograph on page 29 is an enlargement of the photograph marked 17A.
 The photograpn on page 28 is of the dynamite, one piece of dynamite. The photograph on page 29 is of a canteen. Both of these items were found away from the tent area to the {195} south which I described earlier as the escape route where the individuals were seen, I saw fleeing up the side of the hill.
 Also the photograph 18D as in David and 19B as in boy, some articles of clothing and a shell casing. They were also found in the same area where the dynamite and the canteen were found on the escape path.
 A  photograph on page 30 is an enlargement of photograph on page 18 marked with the letter D as in David. Now I haven't described the remainder of this album so do you want me to continue with that now?
 Q  Yes. Would you please.
 A  I believe I concluded with, I was on page 39. On page 39 are six, excuse me, nine photographs. Photograph marked A, E, F and I are photographs of Agent Williams' car as it was found on the night of the 25th or 26th of June and again on the morning of the 27th of June.
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 Q  Before we go on I will show you Government exhibits marked for identification as Government Exhibit 9A and 9B. Would you identify these as well.
 A  Yes. Referring to Government Exhibit 9A, this is a photograph of Agent Williams' car as I found it on the night of the 26th.
 It is taken from the right rear side. It shows the trunk lid to be open and the door open.
 9B is taken from the left front -- excuse me. I think I said 9A was from the right rear. It's from the left rear.
 And 9B is from the left front depicting the front side of the car.
 MR. SIKMA:  I would offer 9A and 9B into evidence, Your Honor.
 MR. TAIKEFF:  No objection.
 THE COURT:  9A and 9B are received
 Q  (By Mr. Sikma) I would also show you 9C.
 MR. TAIKEFF:  No objection if offered.
 MR. SIKMA:  Since there's no objection, Your Honor, we will offer and let the witness explain to the jury what it is.
 THE COURT:  9C is received.
 A  9C is a photograph taken from the front of Agent Williams' car as it was found on the 26th of June.
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 Q  (By Mr. Sikma) I will show you Government Exhibit 13A and 13B.
 MR. TAIKEFF:  No objection if offered.
 MR. SIKMA:  And would offer them into evidence also, Your Honor.
 THE COURT:  13A and 13B are received.
 Q  (By Mr. Sikma) Would you describe to the jury what Government Exhibit 13A and 13B portray.
 A  Yes. 13A and 13B --
 Q  Would you hold them also so the jury can see them.
 A  --are pictures of the Ford, I believe it's a 1967 Ford automobile which was located in tent city and you can see there are items on the hood of the automobile as I saw it on the 26th and again on the, 25th and 26th.
 Q  Now when you came upon the tent city on the 26th can you tell the jury whether or not it appeared to be as it is portrayed in the photographs that you have just shown of the vehicle, the Ford, green Ford?
 A  Yes. It appears to be the same way.
 As I stated earlier, I saw a green car in there and I saw a, a rifle on the hood of the car and that's the extent of my examination of that particular area.
 Q  I will show you what is marked, I've shown it to defense counsel, Government Exhibits 12 and they've indicated there's no objection to Government Exhibits 12.
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 MR. SIKMA:  I'll offer that into evidence, Your Honor. The defendant has no objection.
 THE COURT:  Is there no objection?
 MR. TAIKEFF:  That's correct, Your Honor.
 THE COURT:  Thank you. Exhibit 12 is received.
 Q  (By Mr. Sikma) Would you tell the jury what that is.
 A  Government Exhibit No. 12 is a photo of the red and white van.
 Q  And did you see that red and white van?
 A  I saw that in the tent area.
 This photo was taken at the B and U complex in Pine Ridge.
 Q  Will you point that out on Exhibit 71.
 A  Referring to Government Exhibit No. 71, this marker here, the red and white van, depicts the location of the van and the car was parked to the rear of the van. The car was found parked on the rear of this road at the edge of the tent area.
 Q  Now is that a red and white pickup that you observed going into the Jumping Bulls' residence?
 MR. TAIKEFF:  Objection to the form of the question, Your Honor. It assumes a fact not in evidence.
 THE COURT:  Sustained.
 Q  (By Mr. Sikma) You testified earlier that you observed a red and white vehicle going into the Jumping Bull residence earlier. J. {199}
 MR. TAIKEFF:  Objection to the form of the question. It assumes a fact not in evidence.
 The testimony was it was a pickup.
 MR. SIKMA:  I indicated a vehicle.
 MR. TAIKEFF:  The witness did not say vehicle. Only Mr. Sikma said vehicle. The witness has been saying quite clearly a pickup.
 THE COURT:  The objection is sustained.
 You may rephrase your question.
 Q  (By Mr. Sikma) You indicated you saw a red and white pickup going into that area, did you not?
 A  Yes. I did.
 Q  Now can you tell the jury that there is any difference, if that's the same kind of vehicle that you see in that photograph?
 A  No. They're entirely two different vehicles.
 Q  Have you ever flown over this particular area, the tent area and the Jumping Bull Hall area in an aircraft?
 A  Yes. I have.
 MR. SIKMA:  I show defense counsel Government Exhibit 56 for their objection and, possible objection before showing it to the witness.
 MR. TAIKEFF:  Your Honor, if these photographs are offered, there will be no objection from the defense.
 THE COURT:  Very well.
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 MR. SIKMA:  I would offer them at this time.
 THE COURT:  You are offering Exhibit 56?
 MR. SIKMA:  Yes, Your Honor.
 THE COURT:  Exhibit 56 is received.
 Q  (By Mr. Sikma) Would you, Mr. Adams, please explain to the jury what Government Exhibit 56 consists of.
 A  Referring to Government Exhibit 56, the photographs contained herein are all aerial photographs of the area of Jumping Bull, in the vicinity of Jumping Bull Hall and the tent area there as referred to on Government Exhibit 71.
 Q  During the course of the afternoon, or excuse me, during the course of the following day did you have occasion to examine Special Agent Williams' car?
 A  Yes. I did.
 Q  And during that examination did you look at the back part of the car, --
 A  Yes. I did.
 Q  -- taillight area?
 A  Yes. I did.
 Q  And what if anything did you observe?
 A  There was, to the best of my recollection there were at least two bullet holes into the taillight assembly.
 Q  Was anything, can you tell whether or not anything was missing from the taillight?
 A  Some of the glass particles, yes, from the taillight were {201} missing.
 MR. TAIKEFF:  Your Honor, I'm referring to Government, Counsel, Government Exhibits 57 and 58. If offered there would be no objection from the defense.
 THE COURT:  Very well.
 MR. SIKMA:  Your Honor, I will then offer Government Exhibits 57 and 58.
 THE COURT:  Exhibits 57 and 58 are received.
 Q  (By Mr. Sikma) I will show you first Government Exhibit 58 since we're talking about Government Exhibit 58 at this time.
 Now does one of those areas show the taillight section of Special Agent Williams' vehicle?
 A  Yes, sir.
 There are two photographs here that show the rear end of Agent Williams' car. They are photograph number 7 and photograph number 17.
 Q  Okay. Now at that time what was the condition of the taillight section of the vehicle?
 A  On photograph number 7, this was taken at the B and U compound at Pine Ridge after the vehicle was towed from the vicinity of the tents.
 The photograph on page 17 is a photograph taken at the National Guard Compound in Rapid City, South Dakota.
 MR. TAIKEFF:  Your Honor, Government has shown the defense Exhibit 14B. If offered there will be no objection.
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 MR. SIKMA:  Your Honor, we'll offer into evidence Government Exhibit 14B.
 THE COURT:  Exhibit 14B is received.
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 Q  (By Mr. Sikma) Would you examine 14B and tell the jury what it is.
 A  Referring to Government Exhibit 14B, this is the left portion of the taillight assembly which was removed from the car and which is shown as a blank or bare area on Government Exhibit, on the photograph number 17 of Government Exhibit No. 58.
 Q  And you, can you describe the condition of that particular item for the jury.
 MR. LOWE:  Your Honor, we can save an awful lot of time. We are perfectly willing to stipulate that that vehicle at any time was located by Agent Coler's vehicle if the Government will just make a representation. There's no need to go through the process of, identifying process of the car.
 MR. TAIKEFF:  There's no dispute about that fact.
 MR. SIKMA:  That's something I didn't know we had an agreement to stipulate to, Your Honor.
 MR. LOWE:  Well, I will so offer now. There's no dispute on that and Mr. Sikma, I've talked about this with him in the past and Mr. Sikma can just make a representation of where the car was found and where this would purport to show early in the day. There's no dispute on this. That's fine with us. No dispute on this.
 MR. SIKMA:  Your Honor, I might indicate that the vehicle, Special Agent Williams' car which is designated here by {204} a small magnetic square piece. If the jury can see, it indicates, it says on the top there, "SA Williams' car."
 I would represent, Your Honor, that the vehicle was found, or would have been in a location somewhat similar to this, running parallel to the area from the tan and white house, to the road from the tan and white, tan and red house, excuse me, marked "residence" directly above the sign that says "bodies of Williams, SA Williams and SA Coler" on Government Exhibit 71 to the area of Coler's car here, that it was parked, or at some time would be in a position where it was parallel to that, slightly to the front of or forward of the position of SA Coler's car.
 MR. TAIKEFF:  We'll stipulate to this, Your Honor.
 THE COURT:  Very well.
 The jury will remember that when counsel has stipulated to a fact, factual matter the jury may take that as having been proved.
 MR. SIKMA:  Could I have the Court's indulgence for just a moment, please.
 THE COURT:  Okay.
 MR. SIKMA:  Your Honor, the Government and the defendant stipulate that the car was in this position at the time of Special Agent Williams and Coler's death at approximately 12:00 noon on the 26th of June, 1975.
 MR. TAIKEFF:  It is so stipulated, Your Honor.
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 THE COURT:  The record may show and the jury will know the stipulation.
 Q  (By Mr. Sikma) Mr. Adams, Government Exhibit 57 is also in front of you. It has been admitted into evidence.
 Would you describe for the jury what Government Exhibit 57 consists of.
 A  The photographs contained in Government Exhibit No. 57 are photographs taken of Agent Coler's car.
 Q  And are those photographs taken from a number of different angles?
 A  Yes. They are. Almost every direction.
 Q  And those photographs I take it were made after the vehicle was removed from the scene as it's portrayed on Government Exhibit 71, is that correct?
 A  Yes. All of the photographs were taken after the vehicle was removed from the area where it was found at Jumping Bull Hall.
 Q  In the tent area you indicated that you observed a firearm on the hood of a car. Can you describe that firearm.
 A  Yes. It was a 22 bolt action rifle.
 MR. SIKMA:  I'll show the defense counsel Exhibit 41A, Your Honor.
 MR. TAIKEFF:  No objection if offered in evidence, Your Honor.
 MR. SIKMA:  Your Honor, we would offer Exhibit 41A.
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 THE COURT:  Exhibit 41A is received.
 Q  (By Mr. Sikma) Would you examine this and tell the jury what it is and if you know where it was found.
 A  Yes. This is the 22 caliber rifle with scope.
 It was found on the hood of the 1967 Ford in the tent area.
 It was tagged by Agent Robert Thompson as so reflected on this tag here.
 Q  Special Agent Adams, after leaving the tent area on the -- or can you tell me what areas you examined on the 27th, the day following the date of the murders of Special Agent Williams and Coler.
 A  Pursuant to Search Warrants I was involved in the examination of the log cabin and the white house and the, the residence here, the little residence which lays between the log cabin and the red and tan house.
 Q  And would you state what it was that, what kind of an examination you conducted.
 A  We examined the houses in the area and around the houses for any proof of the crime and anything we might use to identify the individuals that there, were there the night before that were involved in the murder Agents Williams and Coler.
 Q  What kind of items did you look for and what kind of items did you find?
 A  We found several shell casings, empty cartridges, shell {207} cartridges and some, then we picked up paper or anything that could identify people by name that might live in the area at that time.
 We didn't know exactly who was living there or who might have been there.
 Q  I will show you Government Exhibit 32C, 33G, 34E, 41B and 69E. I will first show them to the defense counsel for their inspection.
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 (Counsel examine documents.)
 Q  (By Mr. Sikma) I will show you, first of all, Government Exhibit 32-C, and ask you whether or not you can identify Government Exhibit 32-C?
 A  (Examining) Yes, I can.
 Q  And do you recognize it?
 A  Yes.
 Q  Is this an item that you found during the course of your examination?
 A  Yes, it was.
 Q  Can you tell the Court whether or not this was coming from a -- you found this in an area from which shots were being fired on the 26th of June, 1975?
 A  Yes. These items did come from that area.
 MR. SIKMA:  Your Honor, I would offer into evidence Government Exhibit 32-C.
 MR. TAIKEFF:  I have just one question on the voir dire, your Honor, if I may.
 THE COURT:  Very well.
 MR. TAIKEFF:  Agent Adams, did you find those items personally?
 THE WITNESS:  Yes, I did.
 MR. TAIKEFF:  No objection.
 THE COURT:  Exhibit 32-C is received.
 (Plaintiff's Exhibit No. 32-C, having been previously {209} duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Sikma) Could you tell the jury where it was exactly that you found them?
 A  Yes. These two shell casings were found in the vicinity of the white house, so depicted on Government Exhibit No. 71.
 Q  O.k. Would you point it out on the map, Government Exhibit 71?
 A  It was found in the vicinity of this house right here, white house (indicating).
 Q  I would show you what is marked for identification as Government Exhibit 33-G, and ask you whether or not you can identify Government Exhibit 33-G?
 A  Yes, I can.
 Q  And are these items which you found on the 27th of June, 1975?
 A  Yes, they are.
 Q  And can you tell the Court whether or not these were found in an area from which you observed shooting on the 26th?
 A  Yes, they were.
 MR. SIKMA:  I offer into evidence Government Exhibit 33-G, your Honor.
 MR. TAIKEFF:  Your Honor, my understanding from the testimony is that the agent found them personally, and if that's the case, there is no objection; and that would be {210} true of the additional exhibits which are about to be offered.
 THE COURT:  You did testify you found them personally?
 THE WITNESS:  Yes, your Honor, I did.
 THE COURT:  Very well. Exhibit 33-G is received.
 (Plaintiff's Exhibit No. 33-G, having been previously duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Sikma) Now, what are these items which you have in Government Exhibit 32-C and 33-G?
 A  33-G are two .44 Remington Magnum shell casings, expended cartridges.
 Q  What was their condition when you found them?
 A  They were laying on top of the ground as if they had been recently fired and in a shiny, new condition.
 Q  Now, earlier is it correct that you testified that on the night of the 25th there was a severe rainstorm in that area?
 A  Yes, there was.
 Q  Is this true of all the shell casings which you found?
 A  Yes, it is.
 Q  I would show you what is marked for identification as Government Exhibit 34-E and ask you whether or not you can identify Government Exhibit 34-E?
 A  Yes, I can.
 Q  And is it also true that Government Exhibit 34-E was {211} found, as the others were found, in the general area in which you observed shooting on the 26th?
 A  Yes. As a matter of fact, this particular cartridge was found in the vicinity of the log house.
 Q  O.k. Would you point out to the jury where it was that that was found?
 A  Referring to Government Exhibit 71, it would be in the vicinity of the log house here (indicating).
 Q  Which side was it on?
 A  To the best of my recollection, this particular cartridge, was found -- the entrance of the house is on the northeast corner, on the east side, and it was found in the general vicinity of the entrance to that house.
 MR. SIKMA:  Your Honor, I would offer into evidence Government Exhibit 34-E.
 MR. TAIKEFF:  No objection, if personally found.
 THE COURT:  34-E is received.
 (Plaintiff's Exhibit No. 34-E, having been previous duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Sikma) Is it true about this shell casing, that you indicated about the other shell casings, as far as their condition at the time they were found?
 A  Yes. It was in the same condition as the others.
 Q  I will show you Government Exhibit 41-B, and ask you to {212} identify this -- and you will have to take it out of the package unless you know what it is inside it.
 A  (Examining) Yes, I know what this is.
 Q  And what is it?
 A  It is a .22 caliber cartridge.
 Q  And where was this found?
 A  It was found in the vicinity of the white house.
 Q  And who found it?
 A  I found it personally.
 MR. SIKMA:  I would offer into evidence Government Exhibit 41-B.
 MR. TAIKEFF:  May I have a question or two on the voir dire, your Honor?
 THE COURT:  You may.
 MR. TAIKEFF:  Did you say it was a cartridge or a casing?
 THE WITNESS:  It is a casing. It is an expended casing.
 MR. TAIKEFF:  No objection.
 THE COURT:  41-B is received.
 (Plaintiff's Exhibit No. 41-B, having been previously duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Sikma) Would you point out to the jury on Government Exhibit 71 where it was that you found it?
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 A  Referring to Government Exhibit 41-B, I found this in the vicinity of the white house, as so depicted on Government Exhibit 71.
 Q  And which side of the white house was it?
 A  To the best of my recollection it was on the southwest corner, in the vicinity of the southwest corner of this house.
 Q  Your Honor, I show the witness Plaintiff's Exhibit 69-E for identification. Would you examine that and tell the jury what that is and whether or not you can -- first tell the jury whether or not you can identify it?
 A  Yes, I can.
 Q  And did you find that particular item?
 A  Yes, I did.
 Q  And would you tell the jury approximately the general area in which you found it?
 A  I found this in the vicinity of the white house.
 Q  What was the condition of this item when you found it?
 A  It again was laying on top of the ground. It was not covered in any way. It appeared to be in a recently fired condition.
 MR. SIKMA:  Your Honor, I would offer into evidence Government Exhibit 69-E.
 MR. TAIKEFF:  No objection, your Honor.
 THE COURT:  69-E is received.
 (Plaintiff's Exhibit No. 69-E, having been previously {214} duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Sikma) Would you tell the jury exactly where it was on the map, on Government Exhibit 71, where it was that you found this item?
 A  Plaintiff's Exhibit 69-E was found, to the best of my recollection, on the south and west side, southwest, in the vicinity of the southwest corner of the white house as depicted on Government's Exhibit 71.
 Q  I would direct your attention to what has been marked or has been designated as Government Exhibit 20 which is to my far right, which appears to be a mock-up, to the right side of the courtroom. Have you examined the mock-up?
 A  Yes, I have.
 Q  And do you recognize what area that mock-up covers?
 A  Yes, I do.
 Q  In general terms -- and what is that area?
 A  That is the Jumping Bull Hall area which is near Oglala, South Dakota.
 Q  And that's the area which is also in part depicted on Government Exhibit 71, is that correct?
 A  Yes, it is.
 MR. TAIKEFF:  Excuse me, your Honor. Did I under-stand Mr. Sikma to say that that area was depicted in part on that exhibit?
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 MR. SIKMA:  Yes.
 MR. TAIKEFF:  I had the impression that Exhibit 71 was more comprehensive in scope than the mock-up. The question seemed to put it the other way around.
 MR. SIKMA:  I beg your pardon, your Honor. I guess perhaps I did.
 Q  (By Mr. Sikma) I understand that Government Exhibit 71 covers a greater area than the mock-up, Government Exhibit 20, is that correct?
 A  Yes, it is.
 MR. SIKMA:  Very well.
 May we approach the bench, your Honor?
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 THE COURT:  Mr. Lowe, I did not want to mention it to you, but you violated my rule against two counsel on one witness.
 MR. LOWE:  What rule?
 THE COURT:  On this witness. It was my understanding Mr. Taikeff would handle this witness.
 MR. LOWE:  I didn't think I did.
 THE COURT:  Well, that was the stipulation.
 MR. LOWE:  I thought this stipulation would not cover that. In many instances I am familiar with the evidentiary {216} matters because of my involvement with the matter, and Mr. Taikeff is not. I think the stipulation facilitates so much time saving, I would hope your Honor would allow that as an exception, the only exception.
 THE COURT:  It would be very simple for you to simply lean over and whisper something to Mr. Taikeff.
 MR. LOWE:  Except many of the stipulations will be limited in scope. I would like to think that that would be enough of a time saving, Judge, that you would allow that as an exception. We did it last summer very successfully.
 THE COURT:  Well, I do not allow two counsel on one witness.
 MR. LOWE:  All right. I will certainly abide by your ruling.
 THE COURT:  Thank you.
 MR. SIKMA:  Your Honor, this is at the Defendant's request, we intend at this time to offer into evidence, which was found in the white house, Government Exhibits 50-A and 50-B which are handi-talkies, about the white house which Special Agent Adams found; and I would like to let them know. They have a standing objection to it, and I would like to let them know at this time -- the jury is aware of it -- we are going to offer these to show as was indicated -- will be indicated by an offer of {217} proof, your Honor, that the handi-talkies will be evidence to corroborate the fact that -- as one witness will testify -- that they had a means of communication from the area of the houses to the area of the tent area.
 MR. LOWE:  Your Honor, may I just inquire as to the nature of the extent of the offer of proof? There are two handi-talkies. They were each in a recharger when found. To my knowledge they were in the house. There were no handi-talkies found anywhere else in this case.
 Do I understand there will now be evidence that there was in existence another handi-talkie somewhere the area of the tent city?
 MR. SIKMA:  There was all kinds of radio equipment in the red and white van.
 MR. LOWE:  Operative?
 MR. SIKMA:  Yes, all kinds of it.
 MR. LOWE:  Operative?
 MR. SIKMA:  Yes. I have understood all the time it was.
 MR. TAIKEFF:  Do you know the frequency of the handi-talkies?
 MR. SIKMA:  Just a minute here.
 (Counsel confer.)
 MR. SIKMA:  This is a common channel, your Honor, at 23, a 23 channel unit that was found there. That {218} would have the same capabilities as these handi-talkies would have.
 MR. TAIKEFF:  Well, your Honor, if there is a sufficient foundation that there was an operable radio in the tent city area and an operative radio that worked on the same frequency in the white house, I don't think that the same -- there would be a lack of sufficient foundation or lack of relevancy because it is clear that the Government would be entitled to make the argument that flows from that. However, until such time as they have laid that foundation, I think it would be prejudicial to admit, subject to further evidence, because if that evidence never develops, the jury has seen the object.
 Now, we will stipulate at a later time that this witness found those handi-talkies so that the Government will in no way be prejudiced by waiting until they have a proper foundation.
 MR. LOWE:  We have stipulated foundation already.
 MR. SIKMA:  I will indicate one other factor, your Honor, that the Government will offer testimony that there was capability of communicating, you know, between this area where they were found and the tent area; and that the Government with its offer of proof will have sufficient evidence to show the capability. It is very well conceivable that the Defendants -- the Defendant and {219} his companions could have carried out items to communicate without the Government ever finding them, but I think that the evidence is relevant.
 This goes again to what it is relevant to show as to the capability of the area in question, that that is an important matter of proof, and the prejudice to it, if it is so easily attached, is not that great because this witness is not going to testify that he knows of the capability or anything of this nature; and so at that point if it is later excluded, it shows no great prejudice, but I think that it is important that we establish -- this is the last, these are the last exhibits that I have with this witness.
 MR. TAIKEFF:  This is not an argument concerning prejudice, this is an argument concerning the fact the picture is not the home of the Defendant or the home where he stayed. They take two units which can communicate with each other and try to show the existence of those two units in one house. It's possible that someone in another house could have communicated with the other area. It is just improper to make that offer and offer that evidence on that basis.
 MR. LOWE:  We have already stipulated as to the foundation on it. If they just wanted to offer it, they could go ahead on the stipulation made at that time. We {220} are not fighting that.
 MR. SIKMA:  We would request the opportunity to proceed at this time by offering evidence as to where they found it.
 THE COURT:  You are offering them at this time?
 MR. SIKMA:  Yes. We are showing them to establish that the witness found them there, at the white house, that he found them in the white house. Your Honor, we would not -- yes, we would offer them at this time.
 MR. LOWE:  We would stipulate at the appropriate time later if it is connected up by the evidence.
 THE COURT:  I think the proper method probably --- if you are unwilling to go along with counsel's proposed stipulation -- would be for you to have this witness identify them and withhold offering them until you have additional evidence to tie it up with something or some similar equipment at tent city.
 MR. SIKMA:  We will do that, your Honor.
 MR. TAIKEFF:  Your Honor, we have to object to that because the mere bringing of them into the courtroom in the presence of the jury accomplishes what we are trying to avoid.
 We would stipulate that this witness can identify them, where they were found and what they are, but not for the jury to see them and start wondering about them {221} or consider them, until such time as the Government has made a sufficient showing to warrant the introduction into evidence.
 THE COURT:  On that theory, if you have a piece of equipment here viewed by one person and a piece of equipment over here viewed by another person, there is no way that you could ever get that evidence.
 MR. TAIKEFF:  That's not true, your Honor. We are giving them the foundation.
 THE COURT:  I know there is no way ---
 MR. LOWE:  (Interrupting) When they come in with the second piece of evidence, well, sometimes the first piece gives the foundation for the second piece.
 MR. TAIKEFF:  There isn't going to be the second piece of equipment. This is a bushwhacking operation.
 MR. SIKMA:  There is going to be testimony.
 MR. TAIKEFF:  As to the act of communicating, they can do that with smoke signals.
 MR. SIKMA:  There is substantial radio equipment the evidence, and the testimony will be that that was loaded up into the van from the tent city area in preparation for running the roadblocks. There will be that testimony later in the trial, your Honor, so they wouldn't carry this additional equipment if it was inoperative.
{222}
 MR. LOWE:  There is no conceivable prejudice to the Government. There is conceivable prejudice to the Defendant if this testimony does not materialize, and it seems to me that makes the decision clear.
 THE COURT:  What prejudice do you see for the Defendant if they simply identified the equipment as the equipment that was found?
 MR. LOWE:  Last year, Judge, there was an allegation of ambush. It was a wild allegation that somehow, something, 35 miles away in Aldrich, South Dakota, there might have been another unit. They might have been transmitting and setting up the agents. It was so far-fetched they never did produce another unit, and it was very prejudicial.
 The prejudice here is to suggest some sort of pre-plan. The charge is nothing like that.
 MR. SIKMA:  Your Honor, he is talking about evidence in another trial which was evidence -- which was an admission by one of the Defendants, perfectly admissible -- I mean, if the witness testified that the Defendants said that to him, why, it was evidence of this kind that the Government would be violating its obligation to its case if we didn't present that kind of evidence -- that was being set up.
 We cannot offer that evidence this time because {223} that witness was against another Defendant, and it was an admission by another Defendant after the close of the conspiracy much later; and it didn't relate to this Defendant, so we cannot offer that kind of evidence in this case and we don't intend to use it.
 MR. TAIKEFF:  I think your Honor has been taken away from the main point. There can be no prejudice to the Government by waiting with this. We have already acknowledged if they produce the other unit, we recognize that this is relevant. Of course, it is an argument that they should be permitted to make to the jury; but until they can show some connection between either the Defendant or the area in which he was known to be with an equipment -- or the equipment in somebody else's house, I think it is improper for them to parade it in front of the jury.
 THE COURT:  Well, it won't be paraded in front of the jury, and there is no way that I can require one side or the other to proceed on the basis of a suggested stipulation unless both sides are willing to stipulate.
 MR. TAIKEFF:  And maybe the witness could be shown the unit in an enclosed container, and asked:  "Anywhere did you find what is in this bag that is marked for identification?" and let it rest at that, unless the Government's real motive is only to want to inform the {224} jury of the existence of something that is not in evidence.
 THE COURT:  Mr. Sikma, what is your response?
 MR. SIKMA:  Your Honor, I think that's absolutely ridiculous. We intend to proceed in an orderly manner. We are offering it in good faith.
 THE COURT:  How will you tie it up?
 MR. SIKMA:  We will tie it up by testimony there was a capability by an eyewitness. There was a capability of communicating between this area and the area of the houses, and I expect that we will also be able to connect it up with the radio equipment; but I haven't recently looked at it, but I was definitely going to because I am quite certain that the radio equipment was substantial. If you review the photographs you will see that there was not only communication with this but also, your Honor, the radio in the FBI Agents' vehicle was also -- those radios were also turned up.
 MR. TAIKEFF:  It is the Government's responsibility to have a physical examination of that equipment to see that it is not operative.
 MR. LOWE:  May I ask, your Honor, that the witness be identified?
 MR. SIKMA:  I didn't hear.
 MR. LOWE:  The name of the witness who is going to {225} testify for the offer of proof.
 MR. SIKMA:  One of the witnesses is Draper, your Honor.
 MR. LOWE:  Any other one?
 MR. SIKMA:  It is possible, your Honor.
 THE COURT:  Well, on counsel's representation that it will be tied up, the witness will be permitted to identify the object as being an object that he found. It will not be received in evidence at this time.
 MR. SIKMA:  I understand.
 THE COURT:  It seems to me that is a regular standard procedure and ---
 MR. LOWE:  (Interrupting) Would this be an appropriate time for your Honor to instruct the jury as to the distinction between an object which is simply identified and one which is received as far as their consideration is concerned?
 THE COURT:  I will give the jury such an instruction.
{226}
 (Whereupon, the following proceedings were in the courtroom in the hearing and presence of the jury:)
 Q  (By Mr. Sikma) I will show you what has been marked as Government's Exhibit 50A and 5OB and ask you whether or not you can identify these items.
 A  Yes, I can.
 Q  And can you tell the Court and jury where you first saw those items?
 A  I saw these items in the white house as depicted on Government Exhibit 71 as we were inside the white house searching pursuant to a search warrant.
 Q  Where were they in the white house?
 A  On a table inside the white house.
 Q  And do you remember what the room of the house was?
 A  To the best of my recollection it was a kitchen or eating area. A kitchen type table.
 Q  And what did you do with them after you found them?
 A  I was in the company of Fred Coward. Agent Coward put his initials and a date on each one of the four units and we retained them as evidence.
 Q  What condition were they when you found them? Were they out of the unit or were they as you see them?
 A  The Handi-Talkie was in the charger and as I recall, the chargers were plugged in.
 Q  And were they operative?
{227}
 A  They were.
 Q  At the time you found them?
 A  Yes, they were.
 THE COURT:  Members of the jury, I want to caution you that, as I mentioned in my preliminary instructions, when this case is finally submitted to you you will consider all the evidence in the case and that will be testimony of witnesses, exhibits received in evidence and any matters which may be stipulated between the lawyers. There are times because of, required by the orderly, in order to have an orderly procedure in the trial that certain objects must be identified but are not offered in evidence at that time. They may be offered later. If an object should during the course of the trial be identified and not later received in evidence, the jury must disregard that item entirely, attach no significance at all to it because you can only give consideration and weight to any exhibits that the Court actually admits in evidence. As I say, I give you this caution because there may be items, as in this case, this item which was just identified which has not been offered and if subsequently it should not be received in evidence, then it would have no signifance at all insofar as your consideration is concerned.
 MR. SIKMA:  Your Honor, I might ask if the jury might have some time to look at the photographs and question. If the Court would rather reserve that for a later time, but I {228} think it might be helpful for the jury to observe and look at these photographs prior to cross-examination. I have completed my examination on direct of this witness.
 THE COURT:  My procedure is to permit Counsel that offers an exhibit, or even if it's offered by the other side, any exhibit that's been received that I permit that exhibit to be circulated to the jury. My only restriction is that there would be no interrogation of the witnesses while the jury is viewing photographs or any other exhibits. If you desire have the jury view the photographs, it may be done at this time.
 MR. LOWE:  May we stand easy while this is going on and confer about cross-examination and so forth?
 May we approach the bench.
 (Whereupon, the following proceedings were had at the bench:)
 MR. LOWE:  From the beginning of this trial Mr. Hultman has raised objections about procedures which tend to emphasize one exhibit or part of a testimony or issue. We believe that the gun racks which are set up on the right are calculated to, and in fact do affect, they do that exact thing, they present continuously to the jury certain exhibits but not all exhibits; namely, the guns. To the extent that it is handy to have the guns readily available in the courtroom, we can understand using such a rack, but we believe that racks should be turned {229} facing the walls so that an agent can go over and retrieve the guns but so they're not constantly in the view of the jury while they're in the courtroom or moving in and out of the courtroom.
 THE COURT:  I thought we had resolved that.
 MR. LOWE:  I don't know if we have. It's my under-standing it would not be in view of the jury.
 THE COURT:  I remember that the matter was discussed, I think last Friday afternoon.
 MR. LOWE:  Unless I misunderstood.
 THE COURT:  You heard my suggestion that, somebody suggested, I don't know if Mr. Hultman or who it was suggested they could be turned toward the wall.
 MR. HULTMAN:  Turned toward the wall.
 MR. LOWE:  That's all I'm asking.
 THE COURT:  They'll be turned to the wall.
 MR. HULTMAN:  In fact, I would ask the Clerk to do what he can in terms of handling them that way.
 MR. LOWE:  Fine. That's all it was.
 THE COURT:  You may ask the bailiff ---
 MR. LOWE:  I would like to raise an issue. I don't know if it will come up with Mr. Taikeff, I don't know how he feels about this particular witness. We have had a considerable amount of flap last summer about these green stick ons on Exhibit 71. I take the position, certainly as to some witnesses I do {230} not want the green magnetic items on the board.
 THE COURT:  Certainly as to what?
 MR. LOWE:  Certainly as to some witnesses.
 Both because it would suggest to them what their testimony should be or what previous testimony has been and also because at some point it starts to clutter a lot of lines because you have all these stickers around. Secondly, as to some of the witnesses, I think there may be dispute as to where one item was found or another. They have to look to the board when they assume the stand or while they're sitting there and see the item marked. It suggests what their testimony should be. I don't know whether you have any feelings of how that would be. Last year Judge McManus allowed us to remove them prior to cross-examination if we chose. I don't know if we want to do that each time.
 MR. HULTMAN:  John, I think we could do that. I think we ought to put them up because they do have, what it saves, Your Honor, is normally we would have the witness examine and examine on the board and so forth and we're pretty much all of us agreed there is no real issue on basically most of those items so we prepared these to put on one exhibit once they come in, once a weapon comes in. It's been testified where it was found, it then goes on the board, on Exhibit 71. The problem then that Counsel is raising, he feels there are times when in order to properly examine his witness on cross he would like them {231} removed. What I would suggest is we put them, I strenuously resist anything else, we put them up and leave them there except in those instances when you want to do it. I have no objection.
 MR. LOWE:  Fine.
 THE COURT:  There is an understanding?
 MR. LOWE:  Yes. Thank you.
{232}
 MR. TAIKEFF:  Your Honor, could we approach?
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 MR. TAIKEFF:  Your Honor, I thought we could possibly take advantage of the lull and call Your Honor's attention to the fact that amongst the things listed in our trial memorandum is an objection to the manner in which certain objects have been numbered.
 Mr. Lowe just called my attention to the possibility that in fairness to the Government and to make sure there are no undue delays in the trial, perhaps Your Honor would want to rule on that at the earliest possible time.
 Very briefly to state our position, some objects are numbered with the same numerical reference followed by a letter where apparently the Government is not in a position to prove the connection between the item whose number we object to and the principal item to which it is ostensibly related and we believe that as to those items there should be renumbering.
 The Government can offer whatever proof is appropriate, make whatever argument is appropriate but it is, there is some prima-facie nexus shown. We believe that it is improper to label it that way because it constitutes an unfair advantage.
 The jury is also hearing a number in connection with a principal item whose numerical designation is the same.
{233}
 In fact it is our understanding that it is the, generally the proceeding of this Court to number all exhibits numerically and consecutively and to have these letter exhibits constitute both the deviation from the normal practice here and a suggestion by the very numbering that there's a relationship.
 Now we do not object to most of the items being numbered in letter because in fact we recognize that there is indeed a connection and we're not disputing that.
 But where there is not at least a prima-facie evidence showing we feel that the use of the same number gives the Government an advantage it does not have.
 MR. LOWE:  May I just add, Mr. Sikma told the jury in his opening that they would notice Exhibit 34A and 34B were so numbered because it will be shown that Exhibit 44B was fired from Exhibit 34A and now a logical extension would be that every time they see Exhibit 34G they would draw a similar conclusion when in fact the items we complain of are items which I believe the Government will candidly say will only be shown as possibly having been fired from that weapon or many other weapons. In other words, there is no unique connection to the weapon that is numbered so we feel that while it is relevant for them to give that testimony, that it ought to have a different number so that the jury does not have an unwarranted inference merely from the number of the exhibit.
 MR. HULTMAN:  Your Honor, the Government objects for {234} a number of reasons.
 First of all the system of numbering, and I don't mean that as a result of this that counsel committed to anything but to, just to show the background and the history because there has been a previous trial and there were literally very, very few exceptions. All of the exhibits in this case, or exhibits in the last trial, I gave them the number again, the same as the last trial because if I had not nobody would have been able to understand the transcript from last time.
 I did that with the knowledge of counsel from the beginning because if they had a problem I wanted to know it early and I think generally speaking as counsel's agreed, they agreed it was a good idea because there would be no way ---
 THE COURT:  As I recall, the Briefs that were filed in this matter, there are only about four ---
 MR. LOWE:  Three or four, Your Honor, and all four of them are bullets.
 MR. TAIKEFF:  That's all we address ourselves to at this time.
 THE COURT:  And I have not had an opportunity to fully read the Government's Brief so I would ---
 MR. HULTMAN:  Why don't I leave it at this time, at this point rather than argue the matter and we're only talking about a limited item and I think without a question that counsel with the evidence can make it very clear as you know they will {235} do, that either this exhibit is related to this exhibit in some measure but only to that degree. I mean I have full confidence that there's going to be no question that unless a round is fired from that specific weapon, that's going to be made very clear by both the Government and if not by the Government by the defense. But that there is a relationship, for example, that will be shown that it is capable of being fired from this particular weapon and when placed with the rest of the evidence there is at least this much of a connection and that's the only reason. There is a probability and that's the only ---
 MR. LOWE:  Possibility.
 MR. TAIKEFF:  I agree with Mr. Hultman that counsel is going to endeavor to do as good as possible and that's exactly why this application is made.
 THE COURT:  I will probably rule on it tomorrow morning.
 MR. TAIKEFF:  Thank you, Your Honor.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 THE COURT:  I suppose everybody has been sitting long enough -- oh, I'm sorry. I thought you were through with the pictures.
 Everyone has been sitting long enough so that we should take a recess before we commence the cross-examination of this witness so the Court will recess at this time and {236} reconvene at five minutes to 4:00.
 (Recess taken.)
{237}
 (Recess taken.)
 (Witness resumes witness stand.)
 (Whereupon, the following proceedings were had the in courtroom, out of the presence and hearing of the jury, the Defendant being present in person:)
 THE COURT:  Are you ready to proceed with your cross examination?
 MR. TAIKEFF:  I am, your Honor.
 THE COURT:  You may bring in the jury.
 (Whereupon, at 3:56 o'clock, p.m., the jury returned to the courtroom; and the following further proceedings were had in the presence and hearing of the jury:)
 MR. TAIKEFF:  May I inquire, your Honor?
 THE COURT:  You may.
 CROSS EXAMINATION
 By MR. TAIKEFF:
 Q  Mr. Adams, you are familiar with the model that's on the far side of the courtroom, are you not?
 A  Yes, I am.
 Q  Do you know, as you sit there, what its scale is?
 A  Not off the top of my head, no, sir.
 Q  If I told you that the scale was one inch equals ten feet, that is to say one inch on the model equals ten feet in real life, would you have any quarrel with that?
{238}
 A  I believe it is marked on the scale on the mock-up. If that's what it reads, I would accept that.
 MR. TAIKEFF:  Would the Government accept my observation in that regard?
 MR. HULTMAN:  Yes.
 Q  (By Mr. Taikeff) Would you very generally -- I don't expect you to be precise in any way -- for the benefit of the Court and the jury tell us approximately where in this courtroom the center of tent city would be if it were placed on the same scale and relative to the model, do you understand the question?
 A  No, I do not.
 Q  Would you turn around and look at the diagram?
 A  All right.
 Q  No. 71?
 A  All right.
 Q  It shows the area called the Jumping Bull Hall area, does it not?
 A  Yes, it does.
 Q  That's roughly at the center of the diagram?
 A  Yes.
 Q  In the upper right-hand corner it shows an area that is shaded darkly which we call, or everybody has been referring to as the tent city area, is that right?
 A  Yes.
{239}
 Q  Now, the model which is beyond the defense table only portrays a portion of Exhibit 71, is that right?
 A  Yes, it does, that's correct.
 Q  And it is that central portion around the houses?
 A  Yes.
 Q  And in front of the houses?
 A  Yes.
 Q  Could you -- and I don't expect you to be precise or accurate in any way -- just roughly using a pointer, demonstrate for the Court and jury what part of Exhibit 71 is represented by the model?
 A  All right. It would be an area ---
 Q  (Interrupting) If you will just put your pointer down there so I can describe it for the record ---
 A  (Continuing) -- start with the north boundary.
 Q  All right, close to Highway 18, in the upper left-hand part of the diagram, coming straight down, keep going, to a point somewhat below, I would say, about six inches below the white house and about two feet to its left on the diagram?
 A  That's the tan and red house there.
 Q  That's the red house?
 A  Tan and red, yes.
 THE COURT:  Excuse me. Did he say two feet?
 MR. TAIKEFF:  Yes, I said two feet on the diagram. Yes, your Honor.
{240}
 A  (Continuing) Then we go on the west quarter.
 Q  (By Mr. Taikeff) You are now moving the pointer about a foot above the lower edge to the right, into the trees?
 A  (Indicating).
 Q  And you stopped -- can you describe the point where you stopped?
 A  Well, actually it would be in the wooded area, south and west of the small plowed field that is in that general area.
 Q  All right, and then coming up?
 A  (Indicating).
 Q  And then can you close it?
 A  Right across here (indicating), and up to the Jumping Bull Hall area.
 Q  Would you say that a very rough verbal description is that it is the lower two-thirds of the middle third of Exhibit 71?
 A  That would be fairly accurate, yes.
 Q  Roughly, all right. Would you mind taking the seat again, please?
 What is the distance approximately, not on the diagram but in real life, between the white house and the center of tent city?
 A  I think about a thousand yards.
Q All Q All right, a thousand yards, one inch equal -- excuse me.   (Counsel confer.)
{241}
 Q  (By Mr. Taikeff) Mr. Adams, Mr. Sikma has kindly advised me that the pointer has a scale on it.
 A  Yes, it does.
 Q  You can use the pointer to measure it. Would you prefer to measure it?
 A  A thousand yards would be a guess on my part, sir.
 Q  Do you want to check that?
 A  (Examining) About -- be about sixteen hundred feet.
 Q  O.k. Five hundred yards roughly?
 A  Right.
 Q  Now, according to the scale employed in making the model, sixteen hundred feet would be a hundred sixty inches, do you agree with that?
 A  Yes.
 Q  And that would be about 13 feet in this courtroom, would be the equivalent to the distance between the white house and the center of tent city?
 A  Yes.
 Q  Now, the only thing that remains is for you to tell us in which direction you would measure off the 13 feet to locate tent city in this courtroom, if the model were expanded, is what I am saying, so that it included tent city, where would tent city be in this courtroom?
 A  It would be over to the left, left side here (indicating).
 Q  I am going to move, if I may, your Honor?
{242}
 THE COURT:  You may.
Q (By Q (By Mr. Taikeff) Tell me whether or not I am now standing in a position approximating where tent city would be.
 A  I think it would be back behind you more.
 Q  Well, let me ask you this:  Is tent city not southeast of the white house?
 A  Yes, it is.
 Q  And isn't this the white house (indicating)?
 A  Yes, it is.
 Q  Right here (indicating)?
 A  Yes.
 Q  And isn't the direction north, this way (indicating)?
 A  If so depicted, yes, I would accept that.
 Q  Well, if that's north, then that's south, and southeast would be this way (indicating), wouldn't it?
 A  All right.
 Q  So then you agree that I am standing at a point that would approximate where tent city would be if we expanded that model?
 A  Yes.
 MR. TAIKEFF:  May the record reflect that I am to the left of Mr. Hanson, approximately four feet.
 Q  (By Mr. Taikeff) Mr. Adams, what is a 302?
 A  It is a document or piece of paper that we transcribe notes or our recollection of a certain event on it. It remains, {243} it is a part of a file that we have in our office.
 Q  Is it fair to say that a 302 is an FBI report?
 A  No, it is not.
 Q  It is not an FBI report?
 A  No, it is not.
 Q  What am I incorrect about it, isn't it something that the FBI uses?
 A  Yes, it is, but the 302 in no way is a report. It is strictly a piece of paper which contains a certain incident and a report contains numerous 302's.
 Q  Oh, I see. The information which is recorded in the 302, does that reflect activities of an agent?
 A  It can.
 Q  Well, tell us all the things generally that go into a 302.
 A  Well, you can use it to show the results of an interview. You can use it to show the results of some activity you did. Some of them are used -- a signed statement is reproduced on them. Anything that we want to make a record of, we usually put it on our standard FD-302.
 Q  If you were to interview a witness and the witness were to tell you certain things, that fact or those facts would end up in a 302 most likely, isn't that true?
 A  Yes, usually they would.
 Q  And if you made observations when you went some place, you would probably record that and preserve that information {244} in a 302, wouldn't you?
 A  Yes.
 Q  Now, you have a file for each case as a rule, do you not, each case that you are working on?
 A  Well, your terminology "file" disturbs me. If that's how you want to refer to it ---
 Q  (Interrupting) What is your terminology? I would be happy to use your terminology.
 A  Well, there could be -- on some cases there are numerous files -- a file.
 Q  I mean folders. I am talking about a case file.
 A  Each folder can contain several files which to me is the bound portion of numerous 302's or reports, or whatever it might be.
 Q  When an incident occurs and it appears that the FBI has authority under the law to investigate, that incident becomes a case, that gets a number, isn't that correct?
 A  Yes, that is correct.
 Q  And everything that's done in connection with investigating that case is, as a general rule, if it has any importance or value, is written down, is it not?
 A  Yes.
 Q  And as a general rule it is written down on a 302?
 A  Yes.
 Q  And those 302's are kept perhaps in several places, but {245} at least in the case file, if I may refer to it as that, where you collect all of the 302's concerning a particular separately numbered case?
 A  Yes.
 Q  What are the reasons for doing this?
 A  Just to maintain a record of what was done in this particular case.
 Q  Well, is it so that you can get your paycheck or so that you can make some other use of it?
 A  Well, primarily so the record is there if we need it for Court purposes, whatever it might be, to review for other leads in the case, or whatever purpose it might serve.
 Q  So you use it to refresh your recollection?
 A  Yes, I do.
 Q  To analyze what has been done up to a certain point?
 A  Yes.
 Q  Perhaps to allow your co-workers or supervisor to catch up on what has been happening in a particular investigation?
 A  Yes.
 Q  Do you as a general rule use or reread the 302's in order to refresh your recollection before you testify in court?
 A  Yes.
 Q  Do you make use of 302's in the course of the trial to interview or otherwise refresh the recollection of a potential witness?
{246}
 A  No, I don't personally.
 Q  Does anybody that you know of?
 A  I think ---
 Q  (Interrupting) I don't mean an individual by name, just generally speaking.
 A  Yes, I think the attorneys probably do.
 Q  In fact, one of the additional functions of the 302 is to provide the attorney who will ultimately try the case with some idea of the kinds of information available in connection with that case, isn't that right?
 A  Yes.
 Q  So the 302 serves an important and official function,
isn't that correct?
 MR. SIKMA:  Your Honor, I would object to this, first of all, as irrelevant. 302's are generally in-admissible.
 MR. TAIKEFF:  I am not offering any in evidence, your Honor. I may use them in the course of this examination. I want to establish what they are.
 THE COURT:  Overruled.
 THE WITNESS:  May I have the question again, your Honor?
 MR. TAIKEFF:  May the question be repeated?
 THE COURT:  The question may be repeated.
 (Question was read by the reporter.)
{247}
 A  Yes.
 Q  (By Mr. Taikeff) And because of that fact, is it not true that 302's, as a general rule, are to be prepared accurately and truthfully?
 A  As a general rule, yes.
 Q  Now, I understand that in connection with the events that you personally participated in, in the early part of June 26, 1975, you were not taking notes?
 A  That is correct.
 Q  Do you sometimes take notes of what you do in order to be able to write up your 302's?
 A  Yes, usually I take notes.
 Q  And then you use those notes and your memory to write the final report?
 A  Yes, that is correct.
 Q  Do you type your own report?
 A  No.
 Q  Do you see them after they are typed?
 A  Yes.
 Q  If you find any mistakes in them, do you correct those mistakes?
 A  Usually, yes.
 Q  You mean you sometimes find a mistake which you don't correct?
 A  Yes. Under some circumstances on occasion there might {248} be a mistake or something might be left out that doesn't get
taken care of.
 Q  Maybe you don't understand my question. Do you ever identify the existence of a mistake in a 302 so that you are conscious of it and not correct it?
 A  Yes, I have.
 Q  And you purposely don't correct it?
 A  Not purposely. It is under the circumstances that it doesn't get corrected.
 Q  Well, give me an example of what kind of circumstances would cause you to read a typed report that you had given to typist to prepare, and you would recognize a mistake and you would not see to it that it was corrected before you either signed it or put it in the case file?
 A  Are we talking about a report or a 302?
 Q  I am talking about a 302, and I apologize for making that mistake.
 A  All right. The instance I can think of offhand is when the 302 has been prepared and has been disseminated to different areas and perhaps even the original is in the file before we get to see it.
 Q  Well then, perhaps you misunderstood my original question. I said that after you have given your writing to the typist and you get back now the 302 in typewritten form, you read it over, don't you, to see that it is correct?
{249}
 A  There are occasions when we don't get a chance to read
it over before it is placed in the file.
 Q  Do you keep a log of those that you don't read?
 A  No.
 Q  So you couldn't say with any certainty which 302's in the course of your history, as an FBI Agent, you did not read after typing, isn't that correct?
 A  That is correct, yes.
 Q  And if I showed you a 302 with an error in it, you wouldn't be able to tell the Court and jury now that, "Oh, that's one I didn't read," generally speaking?
 A  I might recall a certain 302, yes.
 Q  I said, generally speaking.
 A  Generally speaking, I think I could, yes.
 Q  You could tell us which ones you didn't read?
 A  Yes, I could.
 Q  O.k. Tell us the 302's that you haven't read.
 MR. SIKMA:  Your Honor, I would object to that form of the question. The witness indicated that there might be a number of occasions which he might be able to recall if he were shown a particular 302. However, he is asking him now to recite from recollection all those that he didn't read.
 THE COURT:  Objection sustained.
 Q  (By Mr. Taikeff) Did you say that shown a certain 302 {250} you might remember that that was one that you did not read?
 A  Yes.
 Q  All right. Now, I ask you, other than the possibility of your memory of a specific event being triggered, are you able now to tell us about the 302's in the course of your career that you have not read?
{251}
 MR. SIKMA:  I would object again, Your Honor. The same question essentially has been asked.
 THE COURT:  He just asked if he's able to tell.
 MR. TAIKEFF:  I'm not going to ask him to tell us, Your Honor.
 THE COURT:  Overruled.
 THE WITNESS:  Could I have the question again, please.
 THE COURT:  The reporter may read back the question.
 (Whereupon, the last question was read back.)
 A  Yes.
 Q  (By Mr. Taikeff) Do you sign or initial the 302s after they are typed when you see them?
 A  Yes. We usually initial them.
 Q  I'm not asking you about more than one person, I'm asking about you.
 A  Yes.
 Q  And if your initials are on a 302, is that an indication that you've read it after it was typed?
 A  Generally; yes.
 Q  What's your current assignment?
 A  I'm in the process of being transferred to the Phoenix division of the Federal Bureau of Investigation.
Q You Q Your most recent assignment prior to the transfer?
 A  Rapid City, South Dakota.
 Q  And does that place you on the Pine Ridge Reservation?
{252}
 A  Yes, it does.
 Q  And when did that assignment begin?
 A  I first started working the Pine Ridge Reservation in June of 1973.
 Q  So for a period of approximately three and a half years you worked that particular area?
 A  Yes, I did.
 Q  Your jurisdiction, of course, was outside the reservation as well as inside the reservation?
 A  Yes, it was.
 Q  How much of your time did you spend on the reservation, would you say, during that three and a half years?
 A  Probably 90 to 95 percent of my working time.
 Q  Did you have any senior status? Were you an agent in charge or anything other than a special agent of the FBI as far as the Pine Ridge Reservation was concerned?
 A  No. I did not.
 Q  How many fellow agents worked with you in that capacity, the capacity in which you worked?
 A  What period of time are you speaking of?
 Q  Well, if it varied, did it vary very much as to the number of colleagues you had?
 A  Within 10 to 15 agents; yes.
 Q  Let's say during the year 1973, the average figure for the year. I'm looking for a qualitative answer, not a quantitative.
{253}
 A  That's 15 to 17 agents.
 Q  And during '74?
 A  The figure dropped to about 11 agents.
 Q  And during the first half of 1975?
 A  Again, around 10 or 11 agents.
 Q  And during the second half of 1975?
 A  It went up to 26 or 27 agents.
 Q  Now you have certain equipment supplied to you by the Federal Bureau of Investigation, do you not?
 A  Yes, I do.
 Q  You have a 357 magnum revolver?
 A  No, I do not. Excuse me, supplied to me by the Bureau?
 Q  No. The question was do you have a 357 magnum?
 A  Yes, I do.
 Q  That's personal property?
 A  Yes, it is.
 Q  How about the shotgun you were carrying on June 26th, 1975?
 A  That was FBI issue.
 Q  And the rifle?
 A  FBI issue.
 Q  And the bulletproof vest?
 A  FBI issue.
 Q  Where did you receive each of those items?
 A  From our office in Rapid City.
 Q  And when?
{254}
 A  I checked them out on the Monday prior to the 25th or 26th of June, 1975.
 Q  And when prior to that Monday had you checked out any of those three items?
 A  I usually carried a shotgun and the vest with me.
 Q  So it was the rifle that you picked w on that Monday?
 A  No. I checked them out on a weekly basis.
 Q  The beginning of your work week you checked them out ---
 A  When I was going on a road trip out of town I'd check them out. Yes. That's usually the way it worked.
 Q  When you say out of town, is that a euphemism for going to the reservation?
 A  Anywhere. If I was going to leave Rapid City area for an overnight trip I'd usually take them with me, wherever it might take me. To the northern part of the state, eastern part of the state, I usually carry them with me.
 Q  That is the shotgun, the rifle and the vest?
 A  Shotgun and the vest.
 Q  How about the rifle?
 A  On occasion I would check a rifle out and this happened to be one of the occasions.
 Q  Is there any special reason for taking that much equipment with you, let's say, when you go out of Rapid City into the northern part of the state?
 A  No. It was just habit I got into and I just followed that {255} pattern.
 Q  Did you feel then any particular necessity to carry that kind of protection on the reservation as opposed to what you would carry in Rapid City?
 A  No. It was no different as far as I was concerned.
 Q  Why didn't you carry it with you when you were in Rapid City?
 A  Because it was immediately available.
 Q  Where did you usually carry the shotgun?
 A  Usually in the front seat.
 Q  In Rapid City, too?
 A  If I had a shotgun with me in Rapid City, yes, it would be in the front seat.
 Q  Where did you usually keep the rifle?
 A  It was usually in a case in the trunk.
 Q  And the bulletproof vest?
 A  In the trunk.
 Q  Now in connection with the investigation which took place beginning at approximately 4:00 o'clock on June 26, 1975, did you play any role in that investigation?
 A  No, I did not.
 Q  Did you conduct any of the interviews of prospective witnesses or people who had information about this matter?
 A  No, I did not. On June 25, 1975?
 Q  And afterwards?
{256}
 A  After that? Yes.
 Q  Did you have any special role in connection with that investigation?
 A  No, I did not.
 Q  You were just another special agent working on that case?
 A  Yes, I was.
 Q  In your years on the reservation, did you see many pickup trucks?
 A  Yes, I did.
 Q  Did you see many vans?
 A  I saw -- yes. I guess I could say many vans.
 Q  Would you say that pickups were more prevalent than vans?
 A  Yes, I would.
 Q  Would you say that pickups were a rather common sight on the reservation?
 A  Yes, they are.
|| Q  Q Would you say you know the difference between a pickup and a van?
 A  Yes.
 Q  You made reference to a jacket that was found on the body
of Mr. Stuntz which said "FBI" on the left breast area.
 A  Yes.
 Q  Was that an official piece of property issued by or belonging to the FBI?
 A  Yes. I think I could say that.
{257}
 Q  Do you know where it came from immediately before it was on Mr. Stuntz' body?
 A  I know now; yes.
 Q  Of your own personal knowledge?
 A  Yes.
 Q  Where did it come from?
 A  The trunk of Jack Coler's car.
 Q  In connection with qualifying as a special agent of the FBI, did you attend any school?
 A  Yes, I did.
 Q  For how long?
 A  14 weeks.
 Q  Was that in Virginia?
 A  Part of it was in Virginia.
 Q  And the other part of it?
 A  Washington, D.C.
 Q  And as part of your training to prepare you to be a special agent of the FBI, did you receive any instruction or training and/or practice in testifying in court?
 A  Yes. Some.
 Q  Until what time was there gunfire in the Jumping Bull area on June 26th?
 A  I would say about, it would be recollection, 4:00 o'clock.  Q And is it fair to say that from the time you got there until 4:00 o'clock, except for that one hour truce, I think you {258} referred to it, that there was firing at all times during that period? Not every minute that intermittently throughout that period there was firing?
 A  Yes.
 Q  Would you be kind enough to use the pointer and show the Court and jury based on your observation or any investigation you subsequently conducted the several places by area where firing came from?
 A  Toward my direction?
 Q  Well, you can identify each place and tell us specifically what you know about the firing from that place and then we don't have to do it by categories.
|| A  A There was firing from the vicinity of the log house and the vicinity of the white house and the trees to the west of the white house (indicating). I also observed individuals around this house, the red and tan house (indicating).
Referring to Government Exhibit No. 71.
 Q  Now so far you have mentioned three places. Do each of those places represent places from which in your opinion firing was directed at you?
 A  I can state for record that, I was fired upon from the log house, from the white house and from the vicinity of the trees adjoining the white house (indicating).
 Q  Now how about that fourth place, the red and tan house?
 A  I saw individuals around there during the afternoon. To {259} the best of my recollection they never fired at my direction.
 Q  You saw them firing though?
 A  Well, I saw them in the area and I heard the shots from what appeared to be this general vicinity in the course of the afternoon (indicating).
 Q  How many such people?
 A  It appeared to me to be two different people.
 Q  Could you say whether they were Indian or white?
 A  No. They appeared to be Indian to me.
 Q  Were they carrying long guns or rifles?
 A  I don't recall seeing a weapon with either one of them.
 Q  You mean you don't recall seeing the kind of weapon but you know they had weapons?
 A  I don't recall seeing either one of them with a weapon. There was trees. I could see them walking between the edge of the house and in the trees here and I can't state positively that I saw them with a weapon (indicating).
 Q  Were there any other places from which firing came that you can identify?
 A  As I stated, when I pulled in here and parked it appeared to me that the first shot just from sound came from this direction down here somewhere (indicating).
 Q  Now there's no house there. Let's see if we can describe that direction in some way for the record.
{260}
 A  I would say just to the south of the area marked "Coler's car," Government Exhibit 71.
 Q  Would you say ten inches away on the chart?
 A  Can I state it appeared to me by the sound it came from this area (indicating).
 Q  Did you see any people down there?
 A  Not when I came in; no.
 Q  Did you see any people down there at any time?
 A  No. I did not.
 Q  Are there any other areas from which you're able to identify firing?
 A  Except for the area of where, as we referred to as the escape route.
 Q  Yes. Putting that aside.
 A  That would be it.
 Q  Would you be kind enough to take your seat again.
 Now in your direct testimony I believe you made reference to the areas of jurisdiction that the FBI has on Indian reservations and although you don't use the phrase you were referring to the act known as the Major Crimes Act, were you not?
 A  I believe it's referred to as that; yes.
 Q  And I think you alluded to it by saying there are certain categories of crime such as robbery, murder, rape, I don't remember all the examples you gave.
{261}
 A  Yes.
 Q  And that's the category of crimes which the FBI is authorized by law to investigate on Indian land, isn't that correct?
 A  As I understand it; yes.
 Q  Now murder is in fact included amongst those crimes?
 A  Yes, it is.
 Q  And in the course of your duties while assigned to the Rapid City office, you had occasion to work on a certain number of murder cases, did you not?
 A  Yes, I did.
 Q  Did you have in the course of your official work some idea or indication of the number of cases, irrespective of whether you personally were working on them?
 MR. SIKMA:  Your Honor, I would object to this as irrelevant and immaterial.
 MR. TAIKEFF:  The matter was opened on direct, Your Honor. I'm going to just explore it briefly.
 THE COURT:  Very well. Proceed.
 Q  (by Mr. Taikeff) Do you have any information as a special agent to the amount of business the FBI had, to put it that way, on the reservation?
 A  Yes. I have general knowledge.
 Q  In 1974 how many killings were there on the reservation?
 A  Just be a guess. I'd have to say 10 to 12.
{262}
 Q  And one final question. What would your guess be for 1975?
 A  It would still be a guess. 12 to 15 maybe.
 Q  I believe in your direct examination you said that you understood that Coler and Williams were working on Jimmy Eagle's case. That's James Theodore Eagle. Did you give that testimony?
 A  Yes, I did.
 Q  And that was in connection with the question put to you as to whether or not you saw either Coler or Williams or both early in the day, do you recall that?
 A  Yes.
 Q  What's the basis of your understanding?
 A  It was just in my brief conversation I had with Agent Price outside the Pine Ridge jail.
 Q  That morning?
 A  Yes.
 Q  He said something to you which made you believe that Coler and Williams were working on the Eagle matter?
 A  Yes.
 Q  ln your official capacity as a special agent working on this case, have you been Keeping up with the 302s in connection with the case and reading them in addition to the ones that you yourself authorize?
 A  No. I am not.
 Q  Did you yourself ever discover, I'm only talking about what {263} your own investigative efforts have uncovered, not what somebody else may have uncovered or not uncovered, whether or not Jimmy Eagle was at the Jumping Bull Hall area on June 26th?
 A  What I personally found?
 Q  Yes.
 A  I don't think anything that I personally did indicated to me that he was there; no.
 Q  Did you not testify on direct examination that there came a time when a person by the name of Wallace Little with two people in the front seat with him were in your immediate vicinity?
 A  Yes.
 Q  What time was that?
 A  I estimated it to be about 1:30 in the afternoon.
 Q  And he was driving away from your area, was he not?
 A  Yes, he was.
 Q  As opposed to arriving in the area?
 A  He arrived alone and departed with two occupants, at least two occupants in the vehicle.
 Q  That departure was approximately 1:30 in the afternoon?
 A  That was an estimate of the time.
 Q  I mean approximate time, 1:30?
 A  Yes.
 Q  What time did you arrive at the Jumping Bull area?
 A  I estimated my arrival to be about noon.
{264}
 Q  And what time was the transmission from either Coler or Williams that you heard referring to the red pickup?
 A  I do not, there was no transmission that I can recall of either one of them referring to a red pickup.
 Q  Did you ever have any communication from them in any form indicating that they had some contact with or perceived a red pickup?
 A  No.
 MR. TAIKEFF:  If I might have a moment, Your Honor, please.
 THE COURT:  Okay.
 Q  (by Mr. Taikeff) Let me modify my question to eliminate the word red from the question. Or do I have to repeat the entire question?
 A  No. I would accept pickup. I recall him saying something about a pickup.
 Q  What time was that?
 A  I'd estimate that to be about 11:50 A.M
 Q  Where were you when you first heard that transmission?
 A  Somewhere between Pine Ridge and Whiteclay, Nebraska.
 Q  How many miles from the Jumping Bull area would you say you were?
 A  12 to 14 miles.
 Q  And what would you say your average rate of speed was, including and taking into account any stops that you made?
{265}
 A  At what time?
 Q  Getting there?
 A  What time period are we talking about, sir?
 Q  You received a radio transmission, you were 14 or more miles away from the scene, you drove to the scene, perhaps you stopped along the way and you arrived. That's the time period I'm talking about.
 A  Well, when I first received the transmission I was going south and then later I turned around and went back north and there was two different speed elements there.
 Q  Well, from the time you first heard that transmission at approximately 11:50, what did you do first?
 A  I was enroute to Whiteclay, Nebraska for lunch.
 Q  Were you traveling, generally speaking, in a southerly direction?
 A  Yes, I was.
 Q  Then you heard the transmission?
 A  The first transmission; yes.
 Q  You turned around?
 A  After I heard "We had been hit."
 Q  But those two transmissions came very close to each other?
 A  Within a minute or so; yes.
 Q  Now at the time you heard the second transmission, what's your best estimate as to how many miles you were from the Jumping Bull area?
{266}
 A  That might have been 12 to 14 miles. Probably 14.
 Q  Probably 14?
 A  Yes.
 Q  What would you say the time was then?
 A  11:52, 11:53.
 Q  Did you stop before you got to the Jumping Bull area?
 A  Yes, I did.
 Q  For how long?
 A  Just long enough to get in the trunk to get my rifle and vest and get back in the car.
 Q  How much time did that take?
 A  I would say less than that.
 Q  Could we say a minute?
 A  Minute would be fair.
 Q  For an estimate. That would be the equivalent of starting back at 11:55 and not stopping or 11:54 and not stopping?
 A  Yes.
 Q  Did you stop at any other time?
 A  No.
 Q  Other than to get your weapon?
 A  No, I did not.
 Q  And how fast did you drive? I know you weren't driving the exact same speed every moment, but how fast were you driving?
 A  I probably averaged between 80 and 90 miles an hour.
{267}
 Q  And so you would cover the 15 miles in about ten minutes?
 A  Yes. That would be a fair estimate.
 Q  So then your arrival would be sometime around 12:00 to 12:05?
 A  Yes.
 Q  When you got there, did you see any other vehicles?
 A  Just the BI police car that was with me and the two cars that were parked in the vicinity of the log house.
 Q  Would you point out the log house.
 A  (Indicating.)
 Q  Thank you.
  Now there was a roadblock somewhere in the vicinity, was there not?
 A  Later that afternoon; yes.
 Q  How much later?
 A  Well, I would say within the first half hour. I know the police units arrive there were, as I understood, were dispatched to both north and south of the area to set up a roadblock.
{268}
 MR. TAIKEFF:  May I have a piece of paper marked for identification, Your Honor?
 THE COURT:  You may.
 Q  (By Mr. Taikeff) I'm placing before you Defendant's Exhibit 75 for identification and I'm putting it face down.
 Do you know a person by the name of George D. O'clock?
 A  Yes. I do.
 Q  Would you tell us who he is.
 A  Who he is?
 Q  Yes.
 A  He's a retired FBI agent.
 Q  And on June 26, 1975 was he a retired FBI agent?
 A  No. He was not.
 Q  What was he then?
 A  He was an agent assigned to the Rapid City office of the FBI.
 Q  Did you have any occasion to speak with him on the FBI radio that day?
 A  Yes. I did.
 Q  And from these communications do you know where he was during the time of the transmission?
 A  Yes. I did.
 Q  And where was he?
 A  He was in the office in Rapid City.
 Q  And there are radio facilities there that can both hear your {269} transmissions from your car and send transmissions to your car, isn't that correct?
 A  Yes.
 Q  Now let's go back to the question of the vehicles.
 You say that when you got there there was your vehicle and a BIA vehicle.
 A  Yes.
 Q  BIA means Bureau of Indian Affairs?
 A  Yes.
 Q  Was it a BIA vehicle or a BIA police vehicle?
 A  Well, it had, it was a police car; yes.
 Q  It was a police car belonging to the Bureau of Indian Affairs?
 A  Yes.
 Q  Now you saw certain vehicles near a house.
 A  Yes. As I recall there were two vehicles parked in the vicinity of the log house there.
 Q  During that afternoon or at least the first few hours that you were there those vehicles didn't move, did they?
 A  No. They did not.
 Q  And did you see any other vehicles moving?
 A  Moving, no.
 I saw Miss LaDeau drive in and I saw --
 Q  That was later in the afternoon?
 A  12:30 or so; yes.
{270}
 Q  All right. Let's talk about 12:29 or earlier in this particular area of inquiry.
 A  Not as I recall; no.
 Q  Did you make a transmission on your radio announcing that you were receiving or had been receiving heavy fire from the vicinity of the Jumping Bull Hall?
 A  Yes. I did.
 THE COURT:  Mr. Taikeff, excuse me.
 I'm going to have to interrupt you at this point because we will have to recess fifteen minutes earlier today due to another matter that I have scheduled.
 MR. TAIKEFF:  Thank you, Your Honor.
 THE COURT:  Members of the jury, we will reconvene tomorrow morning at 9:00 o'clock.
 I will not repeat this every time we recess now but I will, not at the beginning of the trial, but I again ask you that you might not discuss the case or form an opinion until after the entire case has been presented.
 The Court is in recess until 9:00 o'clock tomorrow morning.