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

CROSS EXAMINATION SA GARY ADAMS
{BENCH} ADMISION OF PHOTOS B

VOLUME 3
 

CROSS-EXAMINATION (Continued)
BY MR. TAIKEFF
 Q  Good morning, Mr. Adams.
 A  Morning.
 Q  Do you recall that at the time of the recess yesterday I was asking you some questions about radio transmissions --
 A  Yes, sir.
 Q  -- from you to Rapid City?
 A  Yes.
 Q  All right. For a moment I'm going to divert your attention to something else and we'll get back to that.
 You said that you heard or felt some explosions during the course of the afternoon of June 26, is that right?
 A  Yes. I did.
Q  How many such explosions?
 A  To the best of my recollection there were three or four.
 Q  And at what time of day?
 A  I cannot recall that, sir.
 It was sometime after Miss LaDeau left about 1:30.
 Q  What was the period of time that Miss LaDeau was in the area?
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 A  I estimate it to be from 12:00 to 1:30.
 Q  And during this period of time am I correct that she was either in a specific house or in the area of those houses that I'm now pointing to which are labeled residences, log cabin, white house, green house?
 A  She was in the vicinity of those three houses and then I also saw her walk in a westerly direction.
 Q  Did you see where she went when she walked in a westerly direction?
 A  No. She came back toward the tan and red house and I saw her disappear off the crest of the plateau there in the direction of, well, when I saw her walk she'd been headed toward the vicinity which is marked bodies of SA Williams and SA Coler.
 Q  Now I've got my finger on that particular area.
 A  Back to your left, sir. I was just referring to the letter.
 Q  Over here?
 A  Yes. She was walking in that general direction.
 Q  Am I correct that this road along which we have the marker of Coler's car and these houses up here are not at the same elevation?
 A  That is correct; yes.
 Q  What would you say is the difference of the elevation, I ask you only for an approximation, between this road and the place where these houses are to be found?
 A  Approximately twenty feet.
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 Q  Now you were back in this area somewhere, were you not?
 A  Back toward the curve in the road there; yes.
 Q  Okay. That's the road that's to the left on the chart?
 A  Yes, sir.
 Q  When you are here can you see this road where we have the name Coler or Coler's car marked?
 A  No. You cannot.
 Q  How close do you have to come before you can see this road coming in this way from that road where you were?
 A  It would just be within a few feet of the crest of the plateau. The line depicts the crest of the plateau there; yes.
 Q  That's this curved line here to the south of the tan and red house?
 A  Yes.
 Q  You have to get up to the edge of that crest before you can see the road?
 A  Within a few feet of the crest.
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 Q  Like while Miss La Deau was in the area, at least the extent that you were able to personally see her, was there any firing going on?
 A  As I recall, there was not. But I think it was indicated to me by other people that there was during that time.
 Q  Didn't you say yesterday that during that period you received some fire?
 A  Yes. That would be a correct statement because, as I said, as I recall, there was not. Now when I think, when I prepared my documents I was under the impression there wasn't any fire at all that afternoon, but in talking with other agents now they, and discussing the matter, there could have been some fire during that hour from 12:30 to 1:30.
 Q  Is it accurate to say that your attention was focused in this area of the residences over here?
 A  During that time?
 Q  During that period; yes. Now only talking about that particular period of time.
 A  No I think my attention was centered more around getting assistance in there and getting law enforcement people around the south and the west sides of this particular area.
 Q  Is it fair to say though that you observed no shooting coming from the area of the residences during that period of time?
 A  I cannot positively state that; no. To the best of my {308} recollection there was none, but I will not positively state that there was none.
 Q  You can only relate to us what you saw or heard, is that correct?
 A  That is correct.
 Q  As far as what you saw or heard, was there any shooting coming from the area of the residences during that period?
 A  To the best of my recollection there was none.
 Q  Could you say where the firing was if there was -- withdrawn. Can you say where the firing came from during that period? Not based on your own observations, based on your investigation and consultation with other agents.
 A  It would have been in that same general vicinity there of the three houses.
 Q  And in which direction was the firing going?
 A  It could have gone to the west as there were agents across there monitoring the situation or it could have been back our direction or more to the northeast where there were other law enforcement people.
 Q  When you say to the west, you mean down in this area?
 A  Yes.
 Q  At l:30 in the afternoon there were law enforcement people down here near Coler's car?
 A  There were law enforcement people across the creek to the west.
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 Q  Where is that creek?
 A  It goes through the wooded area, sir.
 Q  Goes through this wooded area here, lower wooded area?
 A  Yes, it does.
 Q  Were there any people between the road where Coler's car was and the law enforcement people?
 A  At 1:30 in the afternoon?
 Q  Yes.
 A  No. To the best of my knowledge there wasn't.
 Q  Do you know what prevented them, if anything prevented them, from coming to the edge of the woods and looking at the road and seeing Coler's car or the other car if they were both there?
 A  There was a group of individuals led by Delmar Eastman entered the area to the north and northwest and proceeded in that direction. They at one time in the afternoon were in this area and I don't know what time it was they got in there. I know they received some fire from the creek area and had trouble making it through the area because of the heavy brush and the way the creek goes through there.
 Q  What you just referred to occurred late in the afternoon, didn't it?
A  Well, Mr. Eastman was there shortly after I arrived at noon and they were organizing this thing. I was up at my car and all I know is later on that afternoon I talked with some {310} of the BI people and some of our agents that were in there and backed out. As far as what time they were in there, I have no idea.
 Q  Putting the time factor aside for the moment, do I understand that what you're saying is that somewhere, but unspecified exactly where in this lower area there was shooting going on?
 MR. SIKMA:  Your Honor, I would object. I think that's a clear misstatement of the record and the testimony of this witness.
 MR. TAIKEFF:  I'll withdraw the question, Your Honor.
 THE COURT:  Very well.
 Q  (By Mr. Taikeff) I want you to focus your attention on that period of time of approximately one hour which you estimate ended at 1:30 when Miss La Deau was attempting to negotiate and she spent some or most of her time in this area of the residences. Now do you know whether during that time there were law enforcement people down here near the creek or in the wooded area around the creek?
 A  No. I do not know for sure one way or the other.
 Q  Do you know whether a person standing at the edge of the wooded area where it says "Corral," the one on the right, do you know if a person stood there if that person could see the place where Coler's car was?
 A  No. I do not.
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 MR. TAIKEFF:  May I have a moment to look at the model, Your Honor.
 Could the witness come over here for a moment.
 THE COURT:  I might mention this to Counsel for both sides. That exhibit which I believe was designated Exhibit 21 was identified but it has not been offered or received in evidence.
 MR. TAIKEFF:  Your Honor, I'm aware of that fact and I will phrase my questions accordingly. I'm assuming only the witness has the ability to look at this as if he were looking at something for identification.
 MR. HULTMAN:  Exhibit 20, Your Honor.
 THE COURT:  The Clerk just corrected me.
 Do you have any objection to the use of the exhibit in that way?
 MR. HULTMAN:  No, Your Honor.
 Q  (By Mr. Taikeff) For purposes of refreshing your own recollection as to the terrain, I ask you to look at this and tell me yes or no whether I am now pointing at that part of the model which coincides with the lower portion of the chart where the word "Corral" appears twice?
 A  Yes.
 Q  And am I pointing to that thing which corresponds to the word "Corral" that's written on the right-hand side of the chart? {312}
 A  Yes. It appears that way.
 Q  Now look at that and look at this area here and tell me, is the latter area that I'm pointing to the place where Coler's car was found?
 A  Yes, it is.
 Q  Would you look at that, make sure that you have refreshed your recollection as to the terrain and if you'd be kind enough to resume your seat in the witness box.
 Now, sir, let me repeat my earlier questions. If you were standing at the edge of the wooded area at the western edge of the right-hand corral, could you see the roadway?
 A  Yes, you could.
 Q  Are there any obstructions between that corral and the roadway?
 A  Just the corral fence and there is some wagons sitting there.
 Q  How tall is the fence?
 A  I'd say approximately six feet.
 Q  And what type of fence is it?
 A  Appears to be a board or rail.
 Q  Can you see through it?
 A  Yes, you can.
 Q  Now between the two corrals is there area I want you to focus your attention on. If you were standing inside the woods but just at the edge, is there any obstruction to one's vision that would prevent a person from seeing Coler's car?
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 A  Again there is just remnants of a fence across there.
 Q  Could you go through it or over it?
 A  Yes, you could.
 Q  Now, with the exception of these small courses of bushes or trees, if a person were anywhere between the southern edge of the right-hand corral and this part (indicating) of the wooded area, where this little peninsula sticks out in an easterly direction, could you fail to see Coler's car?
 A  No, I think I could see it.
 Q  Did you at any time in the course of the afternoon see any people in that creek or wooded area at the lower part of the diagram, up to 4:00 o'clock?
 A  No, I did not.
 Q  Yesterday you told us or identified for us several places that you yourself knew firing was coming from. I think there may have been four specific places that you mentioned?
 A  Yes.
 Q  Can you tell us the times, generally speaking, when firing was coming from those areas?
 A  lt would have been intermittently all afternoon from the time I arrived until 4:00 o'clock.
 Q  Now, earlier this morning you said that some of the law enforcement personnel received fire from the creek area and the wooded area, or the wooded area -- I am not exactly sure how you phrased it.
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 Q  You are talking about this area here west of Coler's car?
 A  I can't state that specifically. All I know is they came in from the northwest edge here (indicating) -- would have been even probably over the edge of the board -- and came into it along the creek area in an attempt to get up in the vicinity of the residence.
 Q  What you referred to before is in or below the lower left-hand corner of Exhibit 71, is that correct?
 A  Yes, sir.
 Q  Were fingerprints taken of the various objects found in tent city?
 A  Yes, they were.
 Q  And in the tent city area some fingerprints were found of Mr. Peltier, isn't that correct?
 A  To the best of my knowledge, yes.
 Q  Were his fingerprints found on the dynamite that was found there?
 A  I have no knowledge of that, sir. I have no knowledge of where the prints were found.
 Q  Now, yesterday you identified two objects called handi-talkies?
 A  Yes.
 Q  What was the date and the time of day when you first saw those objects?
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 A  It was on June 27th, 1975, and I would estimate the time around noon.
 Q  Now, between 4:00 o'clock on June 26 and the time you first saw those handi-talkies, was this area sealed off?
 A  No.
 Q  Could you say whether those handi-talkies were there on the 26th? "Yes" or "no".
 A  I do not know.
 Q  You don't know whether you could say?
 A  No, I do not know if they were there or not.
 Q  So you couldn't say whether they were there, is that correct?
 A  No. I was not in that house on the 26th.
 Q  Could you say whether they were on the 25th?
 A  No.
 Q  Or the 24th?
 A  No.
 Q  Or even on the morning of the 27th?
 A  Yes.
 Q  You could say they were there on the morning of the 27th?
 A  Yes.
 Q  How could you say that?
 A  Because we entered the house before noon on that morning, and they were there at that time.
 Q  At what time did you enter the house?
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 A  Well, all I know is it was before noon sometime because as soon as the warrants arrived we started our search.
 Q  Could you say they were there two hours before you entered the house? "Yes" or "no".
 A  Before I entered the house, no I could not say that.
 Q  Now, when you saw them, they were both there, is that correct?
 A  Yes, it is correct.
 Q  And were they turned on?
 A  I don't know if the radios were turned on. The chargers, as I recall, were plugged in and they were charging the handi-talkies.
 Q  How could you tell they were charging?
 A  As I recall, there is a little light on there that was on which shows they were active.
 Q  Did you check the radios to see if they were?
 A  No, I did not.
 Q  Now you have identified in the course of your direct testimony a number of shell casings, that is to say, the brass that remains after a bullet or a cartridge is fired. Were those the only indications which were found in that area?
 A  No, they were not.
 Q  Can you tell us where other casings were found? Use the pointer if it is convenient for you.
 A  Well, there were casings found in the vicinity of all the {317} houses depicted on Government Exhibit 71 and in the vicinity of the tent area, and in some of the vehicles located in the tent area.
 Q  How many casings were found in the vicinity of the house, in addition to those which you identified yesterday?
 A  It wuld be an estimate of a couple hundred.
 Q  Were casings found anywhere else in the area?
 A  There were -- I know there were one or two casings found in the vicinity of Coler's car or in Coler's car.
 Q  How about in the wooded area near the creek?
 A  To the best of my recollection I know of none. There could have been. I was not in that area, did not conduct any searches in that area so I have no knowledge of any.
 Q  Who did?
 A  Some of the members of the group from Denver were in there, I know. They found some objects in that area. That off the top of my head is the only people I know that were in there. I am sure there could have been others.
 Q  Do you know if they were looking for casings when there?
 A  Any remnants of a crime, sir.
 Q  What was the total number of casings that were found?
 A  In the entire area?
 Q  Um-hum.
 A  There were several hundred. I don't know exactly what the final count was.
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 Q  Do you know whether it is illegal for a person to carry a gun on the Reservation?
 A  Not to my knowledge.
 Q  Do you know whether many people do, in fact?
 A  I would say a few, only a few. Now, law enforcement people do, but outside of that, you know, you will see a farmer, a rancher now and then, with a rifle in the rack behind him in his pickup. If you want an overall figure, I would say few people do.
 Q  Now, yesterday you were asked about the number of agents who were working on the Reservation in 1974, and the first six months of 1975, and the second six months of 1975. Do you recall those questions?
 A  Yes.
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 Q  Did you interpret that question to mean how many agents were permanently assigned to the Rapid City office?
 A  Yes.
 Q  Were there other agents working on the reservation who were temporarily assigned to the reservation?
 A  Yes. They were.
 Q  Okay. I want to ask you the same three questions but this time I want you to interpret my question literally, the number of agents working on the reservation, not the number of agents permanently assigned to Rapid City.
 How many in 1974 approximately?
 A  Ten to fifteen.
 Q  First six months of 1975?
 A  Again that same number. Around eleven or twelve to be exact I think.
 Q  And during the second half of 1975?
 A  Immediately following June 26 there was maybe as many as one hundred fifty agents on the reservation and then that went down to twenty-six or so at the end of the year.
 Q  Now the twenty-six or so, are those --
 A  Excuse me. Twenty-seven or so.
 Q  All right. Twenty-seven. By the second half of 1975 the number of permanently assigned agents to the Rapid City office grew to twenty-six or twenty-seven, is that right?
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 A  Yes. By the end of the year.
 Q  And prior to that time how many were permanently assigned there?
 A  Eleven or twelve to the best of my recollection.
 Q  Now was it part of your function as an FBI agent who spent a considerable amount of his time on the reservation to keep track of what was happening generally, I'm not talking about specific facts with reference to specific cases, but to have some sense of what was going on in that community and what the general trends were and what was happening in the communities in which you worked?
 A  Did you say --
 MR. SIKMA:  Your Honor, I would object to this. There's no showing at this time that Leonard Peltier was a member of the community in the Pine Ridge Indian Reservation.
 THE COURT:  Read the question back.
 (Whereupon, the last question was read.)
 MR. SIKMA:  Your Honor, it also calls for speculation on the part of this witness.
 MR. TAIKEFF:  I'm not asking him to speculate, Your Honor I'm asking whether it was part of his function to be aware in that kind of way.
 THE COURT:  You may answer.
 A  No.
 Q  (By Mr. Taikeff) Did you in fact become aware of events {321} in the community other than those which were of direct interest to you because of a pending case.
 MR. SIKMA:  Your Honor, I would object. That's irrelevant.
 THE COURT:  I beg your pardon?
 MR. SIKMA:  That is irrelevant, Your Honor, to the case at hand.
 THE COURT:  Sustained.
 *Q  (By Mr. Taikerf) Did you know that there was an AIM encampment prior to June 26, 1975 in that area?
 A  No.
 Q  Did you know of the existence of tent city?
 A  No.
 Q  Did you know of the presence of the people who were living in tent city prior to June 26, 1975?
 A  No.
 Q  Did you ever hear the word "goon" on the reservation?
 A  Yes.
 MR. SIKMA:  Your Honor, I would object to that as irrelevant.
 MR. TAIKEFF:  Your Honor, I ask that it be taken subject to connection. I will connect it.
 THE COURT:  Very well.
 A  Yes.
 Q  (By Mr. Taikeff) What does that word mean on the {322} reservation?
 A  It's, my interpretation of that word is that it's a title or a name given to a supporter of the former tribal chairmen, Dick Wilson.
 Q  Was the American Indian Movernent an organization that supported Mr. Wilson?
 A  I --
 MR. SIKMA:  Your Honor, I would object to this as totally irrelevant.
 MR. TAIKEFF:  Your Honor, once again I represent to the Court that I will connect this.
 THE COURT:  You may answer.
 A  I have no knowledge of that.
 Q  (By Mr Taikeff) Do you have any knowledge whether the organization AIM was the constant adversary of Mr. Wilson?
 A  No.
 MR. SIKMA:  Your Honor, I would object to that on the grounds that no foundation has been laid.
 THE COURT:  He has answered that he has no knowledge. The objection is sustained.
 Q  (By Mr. Taikeff) With reference to your earlier testimony about a certain limited number of people carrying guns, how about those who were known as goons, did they generally carry guns?
 MR SIKMA:  Your Honor, I would object again as this being a matter that's irrelevant.
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 THE COURT:  Overruled.
 A  I, I have no knowledge of that.
 Q  (By Mr. Taikeff) Prior to June 26, 1975 did you receive any word, and I'm only talking about within the week which preceded that date, of an impending armed confrontation between any two factions on the reservation?
 A  No. I received no word.
 Q  How many people were staying, approximately how many people were staying in tent city?
 MA:  Your Honor, I would object to this. Counsel should be specific as to time of this witness's knowledge.
 Q  (By Mr. Taikeff) Let's say on or about June 25.
 A  I didn't even know tent city existed at that time.
 Q  But you subsequently ascertained that there were people staying there, did you not, through investigation?
 A  Yes. I did.
 Q  All right. I'm talking about what you learned as a result of your investigation.
 MR. SIKMA:  Your Honor, I would object to this as calling for hearsay on the part of this witness.
 THE COURT:  Overruled.
 A  I think there were approximtely eleven people residing in that area.
 Q  (By Mr Taikeff) Now you spoke in your earlier testimony about an escape route, --
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 A  Yes.
 Q  -- do you recall?
 A  Yes.
 Q  And that was a route generally speaking which was a north-south line running from tent city in a southerly direction, correct or incorrect?
 A  That --
 Q  I don't mean a straight line. I'm just speaking generalities now.
 A  That would be a fair statement; yes.
 Q  From your vantage point were you able to see any part of that escape route?
 A  Yes. I was
 Q  And at any time during the day were you able to perceive any people proceeding along that escape route?
 A  Yes. I was.
 Q  How many people did you observe.
 A  I just took a glance up there and I estimate it to be six or seven people that I observed.
 Q  Would you say that you necessarily saw all of those who may have been moving along there at that time or are you saying that you saw six, you don't know exactly how many there were?
 A  I feel I probably didn't see all of them; yes.
 Q  And what time of day was that?
 A  I estimate it to be about 6:00 pm., quarter to 6:00 as a {325} matter of fact.
 Q  Did you have occasion to see a young Indian boy about twelve years of age that afternoon?
 A  Yes. I did.
 Q  And what time did you see him for the first time?
 A  I estimated that time to be about 3:00 p.m.
 Q  And do you remember his name?
 A  Yes. I do.
 Q  What is his name?
 A  Jimmy Zimmerman.
 Q  Did you ascertain where he came from prior to the time you saw him?
 A  On the 26th? Did I ascertain on the 26th where he came from; is that the question?
 Q  Yes, sir.
 A  Not on the 26th; no.
 Q  Through subsequent investigation?
 A  Yes.
 Q  And where did he come from?
 A  From the area of the tents.
 Q  And in connection with what event did he leave the tent area according to your investigation?
 A  Preparation for escape.
 Q  And did the so-called escape occur at the time he left the tent city area?
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 A  It could have started at that time. I didn't see any individuals leaving the area until, as I stated, 5:45.
 Q  Can you say with any certainty that the people you saw on the so-called escape route were the people from tent city who were leaving the area?
 A  No. Because the distance --
 Q  Just answer yes or no.
 A  No.
 Q  Where were you looking at 3:00 p.m., what direction when you saw Jimmy Zimmerman?
 A  I don't know where I was looking. My attention was directed to that area from a transmission from the State radio.
 Q  And where were you at that particular time? I'll use the pointer and you can tell me or if you want you can use it.
 A  At that time I was at my vehicle in this general location right here.
 Q  Almost at Highway 18 in the upper left-hand corner of the Exhibit 71, is that correct?
 A  Yes. It is.
 Q  Now from that position what is the furthest point that is on the chart that you could see?
 A  It woul be the area just to the south and east of the tents.
 Q  Put your pointer there.
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 A  (Indicating.)
 Q  Is that high ground relative to tent city?
 A  No. Oh. Relative to tent city? No.
 Q  Same level?
 A  Approximately; yes.
 Q  So could you see tent city from there or at least the trees surrounding tent city?
 A  Yes. The tops of the trees.
 Q  Now if somebody were in tent city and walked south, viewing the matter from your vantage point, you would see that person presumably at or shortly after the time the person came out of the trees, isn't that correct?
 A  No. I could not.
 Q  Now, you say that you could see the area south of the trees.
 A  I could but I'm referring, sir, to an area a mile and a half over here, a mile over this way.
 Q  I see. Okay. Can you explain why you can't see the area immediately south of the trees from the vantage point that you were at?
 A  This area here?
 Q  Yes. For example, almost at the right-hand edge of Exhibit 71.
 A  Yes. For two reason.
 This area has an elevation comparable to this area {328} here and also the trees here would obscure my vision into this area.
 Q  I see. Now as to that area on the right-hand side of Exhibit 71 that's lower than tent city, isn't it?
 A  No. I would say the elevation is about the same because the, the creek runs through there and then it comes back up and, again at about the same elevation.
 Q  Can you tell us approximately what the comparable elevation is of your vantage point to tent city, to the floor of tent city, not the top of the trees?
 A  I would say the elevation in the trees here would be twenty to thirty feet lower in elevation than my vantage point.
 Q  So then you could see at some point beyond the trees that you couldn't see just at the southern edge of the trees?
 A  That is correct.
 Q  How far out would, if the first point where you could see the terrain beyond the trees going in a southerly direction? I'm not asking where you first saw a person I'm asking you where you could first see the terrain.
 A  Right. There is an old road that comes down along this area and back along the west edge here and that is about where I could see from my vantage point.
 Q  Would you say that's about a quarter to a half mile beyond tent city?
 A  At least a half mile; yes. Maybe even further.
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 Q  So from tent city to one-half mile beyond tent city in a southerly direction if one or more persons were walking, you would not be able to see them from your vantage point, is that correct?
 A  Yes. It is.
 Q  Now will you oint out for the Court and the jury, where was Jimmy Zimmerman the first time you saw him?
 A  I have estimated him to be in this vicinity right here.
 Q  Now am I correct that what caused you to look in that direction and see him was the fact that you received a radio transmission saying the equivalent of, I'm not trying to quote it, "There's sombody up there in a certain direction," and you turned and there he was?
 A  That is correct.
 Q  Now if people left the tent city area at the same time as Jimmy Zimmerman, left the tent city area, you wouldn't have seen them, would you?
 A  That is correct.
 Q  You may resume the witness stand, sir.
 I believe that you told us yesterday that the shooting stopped at 4:00 p.m.
 A  Yes. That was my estimate; yes.
 Q  Is it not a fact that the shooting continued until beyond 7:00 p.m.?
 A  Well, when the individuals went out the south end --
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 Q  Just yes or no, sir.
 MR. SIKMA:  Your Honor, if the witness cannot answer the question by a yes or no, I think that it would be fair for him to explain his answer.
 MR. TAIKEFF:  Your Honor, I don't disagree with that but I think he should say that the question can't be answered with a yes or no.
 THE COURT:  Are you able to answer the question yes or no?
 THE WITNESS:  I'd have to have the question again, sir.
 THE COURT:  The reporter will read back the question.  (Whereupon, the last question was read.)
 A  Yes.
 Q  (By Mr, Taikeff) Now you said smthin I believe yesterday about the people you saw walking south along the so-called escape route shooting, is that correct?
 A  Yes.
 Q  And that occurred about 6:15?
 A  About 5:45.
 Q  About 5:45. Who was doing the shooting at about 7:00 p.m.?
 A  I have no idea.
 Q  Who was doing the shooting at 7:14 p.m?
 A  Again I do not know.
 Q  Who was doing the shooting at 7:16 p.m.?
{331}
 A  I do not know that.
 Q  And who was doing the shooting at 7:17 p.m.?
 MR. SIKMA:  Your Honor, I would object. This witness has stated that he doesn't know the times or where the shooting was going on. It's very clear.
 THE COURT:  Well, it's without foundation too. There's no evidence that there was any shooting at those particular times.
 MR. TAIKEFF:  The witness has not denied that there was any shooting.
 THE COURT:  You may ask the witness if there was any shooting at those particular times again and then if he answers yes you may ask him if he knows who.
 MR. TAIKEFF:  Yes, Your Honor.
 Q  (By Mr. Taikeff) Do you deny that there were shootings at the time that I stated?
 MR. SIKMA:  Your Honor, I would object.
 THE COURT:  Now that's not a matter of whether he denies. It's a matter of whether he knows.
 The objection is sustained.
 Q  (By Mr. Taikeff) Was there any shooting at the times that I stated?
 A  I have no knowledge of any shooting at those times.
 Q  Where were you between 7:00 and 7:30?
 A  At that time I was probably in the wooded area to the south, southwest of the houses conducting the search.
{332}
 Q  In that creek area?
 A  Yes.
 Q  Did you hear any shooting then?
 A  Not that I can recall.
 Q  Did you hear any radio transmissions at that time?
 A  I did; yes.
 Q  What, what was the facility through which you heard radio transmissions?
 A  It was from Agent Williams' car.
 Q  Was that car playing transmissions on the FBI frequency?
 A  Yes. It was.
 Q  Do you know who a person named Ann M. Johnson is?
 A  Yes. I do.
 Q  Who is she?
 A  She's a secretary in our office in Rapid City.
 Q  And do you know what, whether she was working on June 26, 1975?
 A  Yes. She was.
 Q  And do you know whether she was working from approximately noon beyond 7:00 p.m. that day?
 A  I assume she was. I don't know what time she quit that evening.
 Q  Do you know what duties she was performing that afternoon?
 A  No. I do not.
 Q  I show you Defendant's Exhibit 75 for identification and {333} ask you to look at it till you ascertain what it is and what it reflects.
 It's not in evidence and its contents cannot be read out loud.
 A  I can see what it is.
 Q  Have you ever seen it before?
 A  Yes. I have.
 Q  When did you see it for the first time?
 A  I believe as near as I can recall it was about a year ago.
 Q  And is it a 302?
 A  Yes. It is.
 Q  Prepared in the course of the official function of the FBI?
 A  Yes.
 Q  By an agent of the FBI?
 A  Yes.
 Q  In connection with this case?
 A  Yes.
 Q  Now, sir, would you be kind enough to turn to page 25.
 Before you do that, sir, let me ask you a question.
 Are you able to tell us now from your memory either verbatim or by paraphrasing anything that came over the radio, the FBI radio between 7:00 and 7:30 p.m.; yes or no?
 A  No.
{334}
 Q  Would you look at page 25 and 26 and see if that in any way refreshes your recollection.
 A  No.
 Q  Have you read both of those pages?
 A  As I remember, I was not in any position to monitor the radio transmissions between these times. As I recall, now I think I was in the wooded area participating in the search.
 Q  Didn't you tell us a few minutes ago that you were able to hear FBI communications over the radio in Williams' car? Yes or no.
 A  Yes.
 Q  And when I asked you --
 MR. SIKMA:  Your Honor, I would object to this line of questioning. It's totally misleading. The witness has indicated that he heard the sound of the radio. He hasn't indicated that he monitored the radio and furthermore he's indicated that he wasn't in a position to listen to this radio communication. This form of testimony indicates that he in fact turned off the radio and left the area.
 MR. TAIKEFF:  Would Mr. Sikma prefer to go up and whisper in the witness' ear as to what his testimony should be on cross-examination.
 MR. SIKMA:  Your Honor.
 MR. TAIKEFF:  There was no such testimony in this case thus far.
{335}
 MR. SIKMA:  Your Honor, the witness testified that on direct examination that that is what occurred and he also indicated just moments ago that he was not monitoring radio conversation.
 MR. TAIKEFF:  Your Honor, the record will clearly reflect that I asked him whether or not a few moments ago, a few minutes ago he said that he was in the wooded area and he was able to hear the radio from Williams' car and he said yes to that question. Now Mr. Sikma wants to throw him some signals. Perhaps we could have a recess so they could have a conference.
 MR. SIKMA:  I object to that clearly.
 THE COURT:  That is argumentative and it will be stricken from the record.
 Specifically what is your objection now?
 MR. SIKMA:  Your Honor, the line of questioning, number one, is misleading and, number two, Counsel has given a misstatement of the record at this point.
 THE COURT:  Well, it may be that this is something that you could bring out on redirect. I'm going to permit the questioning to proceed at this time.
 Q  (By Mr. Taikeff) Do you wish to change your answer?
 A  No.
 Q  In connection with my question as to whether or not you had earlier in your testimony within the last seven or eight {336} minutes told us that you were in the wooded area conducting a search and you were able to hear FBI transmissions on Williams' car, the question is do you wish to change your testimony in that regard? Yes or no.
 A  No. But I could clarify it.
 Q  That's a chance you'll have on redirect examination.
 Now when I ask you to look at Defense Exhibit 75 for identification, pages 25 and 26, did you read those pages before you responded and said, "I didn't hear any transmissions," or the equivalent? Yes or no. Did you read the text of the pages?
 A  No, I have not.
 Q  Do you know how to sight read an entire page at a glance?
 MR. SIKMA:  Your Honor, I would object. This is argumentative. He's arguing with the witness. He indicated that he didn't read the entire transcript.
 THE COURT:  Sustained.
 Q  (By Mr. Taikeff) How would you be able to respond so quickly, Mr. Adams, the minute you turned to page 25? What prompted you to say almost instantly, "I didn't hear those radio transmissions"?
 A  Because I didn't hear any specific radio transmissions at this particular time.
 Q  Now I asked you when I handed you that document to look at pae 25 and 26 to see if it refreshed your recollection. Would {337} you be kind enough to read those two pages and tell us whether it refreshed your recollection in any way.
 A  Yes, I will.
 This does not refresh.
 MR. SIKMA:  Your Honor, I would like to ask a question on voir dire to determine whether or not this witness can answer that question.
 MR. TAIKEFF:  I think my question is clear cut, Your Honor.
 MR. SIKMA:  Very well.
 THE COURT:  Are you withdrawing your request?
 MR. SIKMA:  Yes. I'll withdraw it.
 A  No. This does not refresh my memory.
 Q  (By Mr. Taikeff) Getting back to Ann Johnson, what was she doing that afternoon in the Rapid City office?
 MR. SIKMA:  Your Honor, might I ask a question on voir dire for the purpose of making a possible --
 THE COURT:  I think all you need to do is make an objection. There is no foundation he knew what she was doing.
 MR. SIKMA:  Objection. No foundation, Your Honor.
 THE COURT:  Objection is sustained.
 Q  (By Mr. Taikeff) Mow that official FBI document, does it reflect what she was doing? Yes or no.
 MR. SIKMA:  Your Honor, I would object again. There {338} is no foundation.
 MR. TAIKEFF:  Yes, there is. The document is in front of the witness.
 MR. SIKMA:  In addition it's hearsay.
 THE COURT:  It's not in evidence.
 MR. TAIKEFF:  I understand. I'm laying the foundation to offer it in evidence.
 MR. SIKMA:  Your Honor.
 MR. TAIKEFF:  HE has the document in front of him and I'm asking him without saying what its content is whether that official document prepared in the official course of the FBI business reflects what she was doing that afternoon. That's my foundation.
 MR. SIKMA:  Your Honor, this witness cannot answer. This document cannot be offered to this witness because the witness didn't prepare the document. While it may be a document that was prepared in the course of business, it is not the type of document that is an exception to the hearsay rule.
 MR. TAIKEFF:  I'm going to offer it as an official business record, Your Honor.
 MR. SIKMA:  We would object, Your Honor.
 THE COURT:  I'm going to sustain the objection to the question that was asked of this witness.
 MR. TAIKEFF:  May I continue to pursue laying the foundation to the introduction, Your Honor?
{339}
 THE COURT:  You may.
 MR. TAIKEFF:  Thank you.
 Q  (By Mr. Taikeff) Was the document which is in front of you, Defense Exhibit 75 for identification, prepared in the ordinary course of the official business or function of the Federal Bureau of Investigation?
 MR. SIKMA:  Your Honor, I would object as irrelevant. That can't go to laying the foundation for this particular document because it's not a document that's admissible as a business record under the Business Records Act, nor as an exception to the hearsay rule.
 THE COURT:  Counsel approach the bench, please.
 (Whereupon, the following proceedings were had at the bench:)
 THE COURT:  Why do you feel that it is an exception to the Business Records Act, Rule 803?
 MR. SIKMA:  Your Honor, if that were the case we could put into evidence our 302s as evidence because all 302s are conducted in the ordinary course of business, but because they are made in the course for the purpose of preparing an investigation for prosecution, they are clearly not a business record for that purpose. If they were admissible, we could put in any of these documents as business records and there is a clear exception that documents prepared for the course of prosecution are not admissible.
{340}
 There are two cases here, one is Police Reports, USA versus Schriever, 414 Fd 2d 46th, 5th Circuit, 1969. Secondly, the treasury claim, for example, was found inadmissible in U.S. versus Thompkins which is an eighth circuit case which came down on 10/24/74.
 I don't have the citation date. It is an eighth circuit court in U.S. versus Thompkins. It was decided on 10/24/73.
 THE COURT:  What did the fifth circuit hold in 414 Fd 2d 46?
 MR. SIKMA:  Your Honor held that police reports were not admissible as business records.
 MR TAIKEFF:  By prosecution. Am I not correct, Mr. Sikma?
 MR. SIKMA:  I do not know.
 MR. TAIKFFF:  I think you'll find that's what the decision dealt with because they were constituted self-serving statements. But here the adverse party is seeking to put in the information collected by the investigative arm of the prosecutor in this case and that is not relevant here.
 THE COURT:  I don't think that this 302 would be available as far as this witness is concerned except if it were his report and were in conflict with what he testified on the witness stand.
 MR. TAIKEFF:  He has official knowledge as an FBI agent {341} as to what the FBI functions were and who did what on that particular day and he recognizes this document as an official, an officially prepared recordation of those activities and there is substantial reliability. The reason there is an exception to the hearsay rule because there is a reliability. Even though this witness has no direct personal knowledge, he does know enough about the general circumstances to know that that document undoubtedly reflects the truth. That's all we need.
 The government is in a peculiar position trying to argue this document is unreliable, it being a document which they prepared and turned over to us pursuant to law.
 MR. SIKMA:  We prepared it, but this document can't impeach the testimony of this witness because this witness has no knowledge of this fact and he stated that he has no knowledge of gunshots being fired at that time of the day.
 MR. TAIKEFF:  That's for the jury to determine.
 MR. SIKMA:  It's entirely an improper time for him to introduce this document.
 THE COURT:  I will not, unless you can show me some authority why this document should come in, I will not permit this document to be received on the basis of this witness' testimony.
 MR. TAIKEFF:  Yes, Your Honor.
 MR. SIKMA:  Your Honor, I would object to any {342} further questioning with regard to this document on that basis.
 MR. TAIKEFF:  Well, this was some background to that concerning the underlying facts that this witness does have personal knowledge that I intend to question him about. I think Your Honor will find that those questions are clearly not objectionable. Concerns his own personal knowledge.
 THE COURT:  And the document could be used to refresh his recollection.
 MR. SIKMA:  He has indicated, Your Honor, that it does not refresh his recollection.
 THE COURT:  I understand that. Particularly with reference to those two pages.
 MR. SIKMA:  That's correct.
 MR. TAIKEFF:  That's clearly understood, Your Honor.  (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 THE COURT:  The record may show that the objection is sustained.
 Q  (By Mr. Taikeff) Do you know where Ann Johnson works in the Rapid City office?
 A  I don't understand the question.
 Q  The Rapid City office consists of one or more rooms in the federal building?
 A  Yes, it does.
 Q  Do you know where in that suite of offices Ann Johnson {343} works?
 A  Yes, I do.
 Q  Can you describe or designate for us the room in which she works?
 A  What's the tense, worked or works?
 Q  Let's get back to June 25, 1975.
 A  At this specific time I think she was a stenographer in the steno pool, as I recall.
 Q  Was there a room set aside for people assigned to the steno pool?
 A  Yes.
 Q  And was there any facility in there such as a loudspeaker that would broadcast transmissions going out on the FBI frequency?
 A  No. I don't believe there was.
 Q  As far as you know, when Ann Johnson was at her place of assignment on that day, she could not, as a general rule, hear the radio transmissions?
 A  To the best of my recollection, that's correct.
 Q  Sir, I'm placing before you Defendant's Exhibits 76 and 77 for identification.
 MR. SIKMA:  Your Honor, might I see what those documents are?
 MR. TAIKEFF:  Your Honor, I'm not offering them in evidence yet. I'm merely placing them before the witness for {344} the witness' perusal.
 MR. SIKMA:  Your Honor, I would merely like an opportunity to see what the witness is looking at.
 MR. TAIKEFF:  I don't believe I'm required to show the government and I will not do so voluntarily. But I will, of course, if Your Honor asks me to.
 THE COURT:  Well, at this point I'll deny the request.
 MR. TAIKEFF:  Thank you, Your Honor.
 Q  (By Mr. Taikeff) Have you ever seen either of those two documents before?
 A  No. I have not.
{345}
 Q  Now, I would like to direct your attention once again to the early portion of the period of time that you were at the Jumping Bull Hall area on June 26, and in particular ask you to focus your attention on the half hollr following your arrival there at approximately 12:00 noon.
 Now, I believe that our point of departure yesterday afternoon was a question to you as to whether or not you broadcast over your radio that you were receiving heavy fire from the vicinity of Jumping Bull Hall, and you said, "Yes," am I correct about that?
 A  Yes, sir.
 Q  Are you able to say from your own memory what time you made that transmission?
 A  As I recall, I made several transmissions to that effect.
 Q  Can you tell us what times were involved?
 A  No. It would have been at various times throughout the afternoon.
 Q  Well, do you recall making a transmission shortly after your arrival in which you said -- and I am not intending to quote you precisely, just giving you the general sense of what I am asking you about -- that "We are under fire, that you guys are going to have to direct us to where to go, we don't know where those guys are, and they are firing at us like crazy." Do you recall anything like that?
 A  I could have made a transmission similar to that, yes.
{346}
 Q Do you know whether that was your first transmission on the FBI frequency?
 A  No, I do not.
 Q  Can you tell us whether the next transmission you made after the one that I have paraphrased for you was to the extent that you were receiving heavy fire from the vicinity of Jumping Bull Hall?
 A  I could have made that transmission, yes.
 Q  Now, at or about the time that you made a transmission that you were under heavy fire from the vicinity of Jumping Bull Hall, did you also say there was a red pickup leaving the Jumping Bull Hall area going north and seeking some assistance in pursuing that vehicle? "Yes" or "no".
 A  I nced the time stance, sir.
 Q  I would say at approximately 12:18 p.m.?
 A  No. I do not recall making that transmission.
 MR. TAIKEFF:  Could I have a moment, your Honor, to look at this document which was just handed to me?
 THE COURT:  You may.
 (Counsel examines document.)
 Q  (By Mr. Taikeff) I gather that you believe you made such a transmission but you say it wasn't at or about 12:18, it was at some other tine, am I correct in my surmise?
 A  Generally speaking, yes.
 Q  And am I also correct that the time that you made such a {347} transmission would be 1:30 p.m.?
 A  That time would probably be more appropriate, yes.
 Q  But you are sure you didn't make that transmission at 12:18 p.m.?
 A  Yes.
 Q  How do you know that you didn't do that, on what do you base that statement?
 A  Because I don't recall a red or red and white pickup. However, it was described being -- leaving that area at that time.
 Q  Is it possible that you have forgotten?
 A  No, it is not. It is not.
 Q  Do you ever forget anything?
 A  Yes, I do.
 Q  Why is it not possible that you forgot that fact?
 A  Well, because to the best of my recollection there was no vehicle leaving about that time.
 Q  Mr. Adams, do you recognize that if you forgot something, you wouldn't have any recollection?
 A  Yes.
 Q  I ask you why you are so certain that you didn't do it and have forgotten it?
 MR. SIKMA:  Your Honor, I would object to this as argumentative.
 THE COURT:  Sustained.
{348}
 Q  (By Mr. Taikeff) I show you Defendant's Exhibit 75 for identification again, and I direct your attention to the lower portion of the first page going over to the top of the second page; and I ask that you read that to yourself.
 A  (Examining) All right.
 Q  Does reading that in any way jog your memory?
 A  No, it does not.
 Q  Mr. Adams, isn't it a fact that you are not telling us the truth about that?
 MR. SIKMA:  I object, your Honor. This is argumentative and --
 THE COURT:  (Interrupting) Sustained.
 Q  (By Mr. Taikeff) Mr. Adams, isn't it a fact that you don't want to admit that you made that transmission?
 MR. SIKMA:  Objection.
 MR. HULTMAN:  May we approach the bench?
 THE COURT:  I think counsel is aware of the proper way of impeaching the witness.
 MR. TAIKEFF:  Your Honor, I am not ready to impeach him yet. I am first inquiring as to whether or not it is his testimony that he is telling the truth. I don't feel bound by his answers since I am cross-examining.
 THE COURT:  You are bound by his answer unless you have some other impeaching evidence. You cannot argue with the witness. He has answered. If you have some --
{349}
 MR. TAIKEFF:  (Interrupting) I take his answer. I am asking him a different question as to whether he has consciously told us the truth or not in giving that answer. That's an entirely separate question, and I think --
 THE COURT:  (Interrupting) I will allow the witness to answer that question.
 MR. TAIKEFF:  I don't believe I finished the question. If I may complete it, your Honor?
 THE COURT:  You may.
 Q  (By Mr. Taikeff) I ask you whether or not it is your conscious motive at this time to deny that transmission so as to eliminate from this case the red pickup truck that left the area at about 12:18 p.m.? "Yes" or "no".
 MR. SIKMA:  Your Honor, I would make the same objection, and there is no basis for counsel to ask this question.
 MR. TAIKEFF:  There is, your Honor, a good faith basis, and I will establish that in about one minute without any doubt about it.  MR. SIKMA:  Your Honor --
 **THE COURT:  (Interrupting) The objection to the question is sustained.
 Q  (By Mr. Taikeff) You testified in another trial in connection with these events, sir?
 A  Yes, I did.
{350}
 Q  I am going to refer to Page 238 of the transcript of those proceedings. I ask you, sir, when you testified at that other trial arising out of these events, did you testify under oath?
 A  Yes, I did.
 Q  Did you testify pursuant to essentially the same oath you took in this case?
 A  Yes, I did.
 Q  And did you tell the truth as you knew it then?
 A  Yes, I did.
 Q  And was that trial last June and July?
 A  Yes, it was.
 Q  And as a rule, when you have experienced a certain event, is your memory better close to that event or is it better further away from that event in time?
 A  Usually it would be closer to the event in time.
 Q  Then, sir, were you asked the following question under oath and did you give the following answer under oath:
 Question:  And did you not give instructions at 12:18 that there was a red pickup leaving Jumping Bull Hall area going north, and you instructed people to stop this pickup?
 Answer:  Yes.
 The question is, were you asked that question and did you give that answer under oath? "Yes" or "no".
 A  Yes.
{351}
 Q  Since June 26th, 1975, have you intermittently worked on this case?
 A  Yes, I have.
 Q  And ln that capacity have you interviewed witnesses or prospective witnesses or people you believed in your official capacity had knowledge of the events of that day?
 A  Yes, I have.
 Q  Did you have any conversations at any time with a person known as Wish Draper?
 A  Yes, I have.
 Q  Without revealing the content of your conversations, approximately how many times?
 A  Are you speaking of dates, because one day there was probably two or three conversations we had.
 Q  Any way you want to count it, whichever you think is most accurate and most revealing of the truth.
 A  I would say three or four times.
 Q  How about a person by the name of Norman Charles?
 A  The question is, did I discuss this case with him?
 Q  Did you in your official capacity as an FBI Agent, working on this case, interview, question, talk with, consult with Norman Charles?
 A  Yes.
 Q  How many times?
 A  Once or twice.
{352}
 Q  Norman Brown?
 A  Three or four times.
 Q  Mike Anderson?
 A  Three times.
 Q  As of right now, how old is Wish Draper?
 A  I believe he is 20 or 21.
 Q  Norman Charles?
 A  Approximately 20. I have no idea of that.
 Q  Norman Brown?
 A  I believe he is 16 or 17.
 Q  Mike Anderson?
 A  18.
 Q  Am I correct, sir, that the second time you spoke with Norman Charles was in the State of Washington within the last few weeks when you served the subpoena upon him to appear in this case?
 A  That is correct.
 Q  Did you ever say to any of the four people whose names I have mentioned in the last few minutes that if they did not cooperate with the FBI, you would see to it that they would be indicted for the murders which are the subject matter of this case? "Yes" or "no".
 A  No.
 Q  To none of them?
 A  Not that I can recall, no.
{353}
 Q  What do you mean, "Not that you can recall", is it something that you might have had in your mind but don't remember saying?
 A  No. I will state, I will answer that question "no".
 Q  When you served the subpoena upon Norman Charles in the State of Washington, specifically now, did you tell him that if he did not cooperate, that he would be indicted for the two murders and spend tne rest of his life in prison?
 A  No, I did not.
 Q  Where are you assigned right now, what is your official oifice of assignment?
 A  Phoenix Division of the Federal Bureau of Investigation.
 Q  Do you have -- when I say "you", I mean the FBI -- do you have offices in the State of Washington?
 A  Yes, we do.
 Q  And do you know whether the United States Marshal's Service has offices in the State of Washington?
 A  To the best of my knowledge they do, yes.
 Q  Are you aware of whether or not the Marshal's Service would serve a subpoena for the FBI?
 A  Yes. As I understand it, they will, yes.
 Q  And have you ever had occasion to have another agent in another city at a distance serve a subpoena for you in connection with a case you are working on?
 A  Yes.
{354}
 Q  Why did you go personally to the State of Washington to serve a subpoena on Norman Charles?
 MR. SIKMA:  Your Honor, I would object. This is totally irrelevant.
 THE COURT:  Sustained.
 Q  (By Mr. Taikeff) Before you went to Washington to personally serve the subpoena on Norman Charles, did you ascertain that there was no one else available to do that for you?
 MR. SIKMA:  Your Honor, I would object. This is totally irrelevant.
 THE COURT:  Sustained.
 Q  (By Mr. Taikeff) Mr. Adams, in connection with your efforts relating to this case, do you view it as a professional duty that you have as an FBI Agent?
 A  Yes.
 Q  Do you also find that you are motivated for personal reasons because one or both of the agents were friends?
 A  No, I do not.
 Q  Was one of those agents a close personal friend of yours?
 A  Yes, he was.
 Q  And you are in no way motivated by that fact in connection with your work?
 A  No, I am not.
 Q  Do you have any feelings that perhaps you might have done {355} more to assist your fellow agents on that day?
 A  No, not necessarily.
 Q  What do you mean by "not necessarily"?
 A  I feel I did all I could.
 Q  Did you at any time in the first hour that you were there make any effort to get down into that area?
 A  No, I did not.
 Q  Once your car came to a halt, near Highway 18, during the half hour following that event, what was the furtherest distance you went from that car?
 A  I didn't leave the car.
 Q  For how long?
 A  Oh, it was sometime after 1:30 when I crawled out of the area just for a brief time.
 Q  Do you feel, sir, some sense that it is very important that you see to it that there is a conviction in this case because maybe you didn't do everything that you could have done on that particular afternoon? "Yes" or "no".
 A  Yes.
 MR. TAIKEFF:  I have no further questions.
 THE COURT:  The Court will recess until 10 minutes to 11:00.  (Recess taken.)
{356}
 THE COURT:  Ready to have the jury brought in?
 MR. TAIKEFF:  Yes, sir. But I want to report some thing to Your Honor. I believe Your Honor and the government are waiting for an answer from Mr. Lowe as to the name of a certain person. Does Your Honor recall that? There was an interview with a prospective witness that has been subpoenaed by the government. The government asked for the name of those people.
 THE COURT:  Yes.
 MR. TAIKEFF:  There was one name that Mr. Lowe said he wanted to make sure he was not bound to any confidentiality. He called and asked me to report to Your Honor the name of that person. Madona Slow Bear.
 MR. HULTMAN:  Your Honor, I have one matter I would like now to make a part of the record and we will refer to it at various times, a stipulation of evidence which has now been signed by all Counsel and by the defendant and a second one page stipulation which has been signed by Counsel for both parties and by the defendant. At the appropriate time, whatever part of the stipulation should be entered into the record --
 THE COURT:  Are you filing that now?
 MR. HULTMAN:  I would file those now, Your Honor, so the Court would be aware of it.
 THE COURT:  The jury may be brought in.
 (Whereupon, the following proceedings were had in the {357} courtroom in the hearing and presence of the jury:)
 MR. SIKMA:  Your Honor.
 THE COURT:  That's right, you had completed your --
 MR. TAIKEFF:  Yes. I had completed, Your Honor.
 THE COURT:  You may proceed.
 REDIRECT EXAMINATION
BY MR. SIKMA:
 Q  During cross-examination you referred to an answer given in prior testimony concerning the red and white pickup. You referred to it --
 MR. TAIKEFF:  Objection, Your Honor. I withdraw the objection.
 THE COURT:  Very well.
 Q  (By Mr. Sikma) You were asked for a yes and no answer whether you said at that time, the question being, "At 12:18 P.M. did you not say you saw a red pickup?" Answer:  "Yes". Was it your intention at that time to lead the record to indicate that you believed that at that time you in fact saw a red pickup?
 MR. TAIKEFF:  Objection to the form of the question.
 THE COURT:  Sustained.
 Q  (By Mr. Sikma) Can you state what your intention was with regard to that answer that you --
 MR. TAIKEFF:  Objection, Your Honor.
 THE COURT:  Sustained.
 Q  (By Mr. Sikma) On cross-examination you were asked whether {358} or not you gave that answer to the question which was, "At 12:18 P.M. did you not say you saw a red pickup," is that correct?
 A  Yes.
 Q  And were you not asked for a yes and no answer simply to that question at that time?
 A  Yes, I was.
 Q  Did you state what you meant by your answer at that time?
 MR. TAIKEFF:  Objection. The answer speaks for itself, Your Honor.
 MR. SIKMA:  Your Honor, the answer does not speak for itself. Counsel read one statement out --
 THE COURT:  I will overrule that objection. The witness may explain his answer.
 Q  (By Mr. Sikma) Would you explain your answer.
 A  That question was asked of me in regard to an entry on a statement prepared by another individual from our office.
 Q  Now can you state whether or not you believed at that time and whether or not you stated at that time that was your impression as to the correctness of that time?
 A  Not so much the correctness of the time but the vehicle being in there. I recall the vehicle was in there and in answer to that question, and it was on this particular document, it was there subsequent, subsequent testimony reflected and we got it clarified that I was referring to the pickup that was in there about 1:30 P.M.
{359}
 Q  And is that your recollection as to the time that you observed the red and white pickup?
 A  Yes, it is.
 Q  And what time was it that you recall that?
 A  1:30 P.M.
 Q  Is that an approximate time?
 A  Yes, it is.
 Q  And with regard to this observation, were there any other factors that you have been able to determine in your mind happened prior to the time you observed that red pickup?
 MR. TAIKEFF:  Objection to the form of the question.
 THE COURT:  Sustained.
 Q  (By Mr. Sikma) Can you state if there were any other things that you observed after you arrived at the crime scene? Were there any other things that happened prior to that time?
 MR. TAIKEFF:  Objection. It goes beyond the scope of the cross. Too indefinite.
 THE COURT:  Overruled.
 A  Yes. There were other things happened that I relate this incident to.
 Q  (By Mr. Sikma) What are those things that you relate it to?
 A  The visit of Joanne La Deau to the crime scene.
 Q  And this happened before or after Joanne visited the crime scene?
 A  My recollection, it had happened after she was at the crime {360} scene.
 Q  Now you say "after she was at the crime scene." Is that after she arrived at the crime scene or after she left the crime scene?
 A  After she departed about 1:30 in the afternoon.
 Q  You were asked a question on cross-examination concerning what you could have done on that particular day. Do you recall that question?
 A  Yes, I do.
 Q  Now during the afternoon from the time you arrived until 5:00 P.M., where were you?
 A  I was near my car where it was stalled in the roadbed out here near Highway 18.
 Q  Now can you tell me whether or not this was in the line of fire?
 A  Yes, it was.
 Q  And can you tell me during the afternoon how long it was that you received fire?
 A  It was from the time I arrived until, I estimated the time to be about 4:00 P.M.
 Q  So from that, was approximately 12:00 o'clock until 4:00 P.M. you stayed in a position where you were in a line of fire?
 A  Yes. That is correct.
 Q  And shots were being fired at you at this time?
 A  Yes, they were. Intermittently all afternoon.
{361}
 Q  Did you have any instructions from your superiors with regard to where you should be during the afternoon?
 A  Yes, I did.
 Q  And what were those instructions?
 A  They instructed me to stay with the radio and keep them advised what was going on at the scene.
 Q  Were they aware of the fact that your radio was in an approximate area which was in a line of fire?
 A  Yes, they were.
 Q  Now you also indicated the time as to what you were aware of as to hearing shots being fired or gunshots, is that correct?
 A  Yes.
 Q  What shots or what time were you aware of the shots being fired from your own personal knowledge?
 A  When I say the firing stopped at 4:00 o'clock, that was in our general location there. There was some additional shots fired when the houses were secured about 4:00 P.M. and then, as I related, I observed the individual, heard firing as I observed the individuals fleeing from the south end about 5:45.
 Q  And if there were gunshots fired at that time or after that time, were you aware of, did you have personal knowledge of that?
 A  After the 6:00 o'clock time?
 Q  Yes.
 A  There could have been. I had no personal knowledge of it.
{362}
 Q  And where were you at about that time?
 A  I was either at the vicinity of the houses or proceeding to the wooded area. I think I left the area about 7:15 and was taken to the hospital.
 Q  You indicated that while you were going back to Highway 18, I believe, you had cut your hand, is that correct?
 A  Yes.
 Q  And you heard the sound of an FBI radio?
 A  I heard the sound of radio transmissions; yes.
 Q  And did you recognize whose radio that was?
 A  They were both transmissions on both the FBI and the State radio frequencies.
 Q  Did you listen to the content of those transmissions?
 A  No, I did not.
 Q  Between 12:00 o'clock and 4:00 P.M. did you know of the whereabouts of Special Agents Williams and Coler?
 A  No, I did not.
 Q  Did you have any idea as to where they were throughout the course of the afternoon?
 A  All I knew is they were possibly in the vicinity of the houses but I had no knowledge as to any exact location.
 Q  And you couldn't see the bottom of the hill?
 A  No. I could not.
 Q  I have a further question about the terrain along the wooded area. Can you tell me what if any terrain features there are at {363} the edge of the wooded area, let's say to the northeast of the wooded area? Is there anything particular that you can say about the terrain there?
 A  Referring to this area here (indicating).
 Q  The area all along the wooded area along the creek.
 A  At times the creek approaches the edge of the wooded area and there's another drop off of 10 to 15 feet into the bottom of the creek.
 Q  Can you tell me whether or not there is a drop off at the edge of the tree line?
 A  Yes. In some areas it would be. The creek approaches the edge of the tree line, very near the edge of the tree line, so some of the trees are right even on the incline from the creek bottom up to the elevation. There is a plateau area here (indicating).
 MR. SIKMA:  I have no further questions.
 RECROSS-EXAMINATION
BY MR. TAIKEFF:
 Q  Mr. Adams, would you resume your position at the map, please, and I ask you to keep your attention focused on the subject matter which Mr. Sikma just asked you about.
 Now run your finger over the edge of the wooded area so that everyone will know specifically what point you were referring to when you answered the question about the drop in the vicinity of the creek.
 A  Well, I know for a fact, I believe it's right in this area {364} here (indicating) the creek approaches right at the tree line somewhere in here (indicating). As far as through here, as I stated, the creek zigzags and, as I recall, in this fashion throughout the wooded area.
 Q  For the benefit of the record, I will state that you started out at the northeastern edge of the woods in the vicinity of the left-hand corral and traced the boundary line of the wooded area along the boundary line on Exhibit 71 for at least eight or ten inches, is that a fair description?
 A  That would be right-hand corral?
 Q  You started at the left-hand corral I said.
 A  Oh.
 Q  Then you traced your finger along the edge of the wooded area for a linear distance of approximately eight inches before you then designated or indicated that the creek went inside the wooded area. Have I made an accurate statement?
 A  Well, I might elaborate further that perhaps there is a bend in here (indicating). I can't state for a fact, but I know that somewhere in this vicinity that creek approaches the wooded area (indicating). Now if it travels along the wooded area, I can't state that for a fact.
 Q  But subject to that modification, is my statement an accurate one of the way you moved your hand on the exhibit?
 A  Yes. Somewhere in this vicinity the creek does pass in the near vicinity to the edge of the trees.
{365}
 Q  All right.
 If you'd be kind enough to resume your seat.
 I gather then that there is a change of elevation at that point.
 A  Yes.
 Q  What is the difference in elevation between the high side and the low side?
 A  I would estimate it to be 10 to 15 feet.
 Q  And is it a vertical drop or is it on an incline?
 A  Well, there are places in there that -- now I can't speak specifically -- all I know, there are places that creek bank drops off almost vertically, then there are places you can walk down gradually.
 Q  All right.
 So there are places where there is an incline?
 A  Yes.
 Q  And trees growing on that incline?
 A  Yes. That's correct.
 Q  And those trees are growing essentially a vertical position?
 A  That's correct. Yes.
 Q  Now which way is higher:  towards the corral or away from the corral?
 A  The higher elevation would be in the vicinity of the corral.
 Q  So that as a person came through the woods from the lowest edge of Exhibit 71, he would come upon a rise in the terrain, {366} whereas if a person came from where Coler's car was into the woods, he would experience a decline in the terrain, right or wrong?
 A  Well --
 Q  You don't understand the question, say so.
 A  Well, I can't answer right or wrong because I think we're misinterpreting each other. I am talking about the 10 to 15 foot difference in elevation being from the ground level around there to the base of the creek.
 Q  Okay. So far we're together.
 A  All right.
 Q  My question is which way does it go? Is the creek area higher than the nonwooded area or the nonwooded area higher than the creek area? Do you understand the question put to you that way?
 A  Let me say this:  there is, some of the wooded area is on the same elevation as the nonwooded area. Do you follow me?
 Q  Yes.
 A  The creek meanders through there. When I say the 10 to 15 foot difference in elevation, I am talking of the plane of the nonwooded area, some of the wooded area down to the base of the creek.
 Q  Let me put it to you this way:  is it fair to say that at that point in the vicinity of the two corrals the creek has an east bank and a west bank?
{367}
 A  It has.
 Q  Which has a higher elevation:  the east bank or the west bank?
 A  I would say they are both in the same plane, same elevation.
 Q  On both sides of the creek?
 A  Yes.
 Q  Where does that change of elevation occur?
 A  From the sides of the creek to the base of the creek, the bottom, the floor of the creek.
 Q  Are you saying that the creek is in a crevice like a canyon?
 A  It's in a creek bed. The bottom of the creek bed, that's what I was referring to.
 Q  Is it possible for a person to cross the creek at that
 A  I assume it is. I crossed the creek in several locations and, as I said, sometimes the water was above my waist.
 Q  Was that crossing done at a great distance from either one of those two corrals?
 A  No, it was not.
 Q  Are we talking about a quarter mile or 100 feet?
{368}
 I, I believe I probably crossed within, the first time, within two hundred feet. That would be an estimate.
 Q  Okay. Now your car when you first arrived and then backed up was somewhere up here near the left-hand edge, the center of the left-hand edge of Exhibit 71 almost at Highway 18, is that correct?
 A  Yes. It is.
 Q  What is the nature of the terrain on which that old highway goes:  is it elevated above 18, the one that parallels the present Highway 18?
 A  I would say generally that elevation would be, well, when you're up on top of the plateau it would probably be higher than 18.
 When you drop off to the left-hand side of the road where I was parked there, I believe it's lower than the elevation of 18.
 Q  But along this area generally is there a rise here along this parallel line west of 18 that's higher than 18.
 A  Yes. The, the plateau to the southeast of the road where I was stopped on there which runs diagonally to the upper lefthand corner, that elevation to the best of my recollection is either at the same elevation or it might be slightly higher than 18, particularly in this location there.
 Q  If you stood on the center line of Highway 18, could you see the tan and red house?
{369}
 A  It depends on the location where you stood.
 Q  Well, let's say in this general vicinity where your car was.
 A  On an extension of the intersection, the road where my car was on Highway 18 I would say you could not but if you proceeded on toward Pine Ridge you could.
 Q  You mean going up that way --
 A  Yes.
 Q  -- towards the top of the chart?
 A  Yes.
 Q  Now people who entered this wooded area in the vicinity of the corral, --
 A  Yes.
 Q  -- how did they enter the general area? Where did they come into the area?
 A  They drove into Highway 18 and parked to the north of where my car was parked there. There's a --
 Q  That would be out here, somewhat off to the left?
 A  No. Right at the intersection of the road and as the road leaves the -- I'll just point it out to you.
 Our cars were all parked in this vicinity right here.
 Q  Did any of those cars take any bullets?
 A  They were down off the edge of the bank, sir.
 The plateau breaks off right in this area and goes down at a lower elevation.
{370}
 Q  So that if you went beyond that rise in the direction of 18 you'd be shielded from the shooting, wouldn't you?
 A  That is, that is correct; yes.
 Q  And then you could proceed on the chart to the left along 18 and increase the distance between yourself and the houses where the shooting was coming from, right?
 A  Yes. You could.
 Q  Then you could find some path or other means of entering the area and getting down here in the woods, right, as those people did?
 A  Yes.
 **Q  Now at 1:30 a pickup truck left the area and you observed that pickup truck leave the area, isn't that correct?
 A  Yes. Approximately 1:30.
 Q  And what color was that?
 A  A red and white.
 Q  Now before on redirect examination Mr. Sikma put a question to you concerning your testimony at the other trial last summer and you made reference to an entry somewhere, do you recall?
 A  Yes.
 Q  What you were talking about?
 A  Yes. At that time I was shown a document which contained an entry, this particular entry.
 Q  And?
 A  And I was asked questions regarding this entry.
{371}
 Q  And as you recall it -- withdraw.
 As you recall what your understanding was at the time you were asked the question or questions, what did you understand those questions to ask of you?
 A  As to my recollection of the vehicle I saw enter and depart that area on the afternoon of June 26th.
 Q  I'm showing you Defendant's Exhibit 75 for identification and I ask you, is that the document that you looked at in the last trial?
 A  Yes. I believe it is.
 Q  And did that document make any reference to a red and white van or pickup at 12:18 p.m.?
 A  I believe it's a red pickup.
 Q  And what is that document?
 A  It's a FD 302.
 Q  A 302 prepared by the FBI?
 A  Yes.
 Q  And generally speaking what subject matter does it deal with?
 A  This particuIar document here?
 Q  Yes. Do you want to look at it again?
 A  No.
 As I recall it's an interview of Ann Johnson.
 Q  And go on.
 A  And it reflects, I guess it reflects her observations on the 26th of June, 1975.
{372}
 Q  Observations in what sense:  touch, smell --
 MR. SIKMA:  Your Honor, I object.
 This, this question has been asked and answered a number of times.
 MR. TAIKEFF:  I believe the Government has opened the door on their redirect examination.
 MR. SIKMA:  Your Honor, --
 THE COURT:  The door had not been opened as to the contents of that, of that exhibit except --
 MR. TAIKEFF:  I'm looking for a general description of it. I have not asked him, I will not ask him about content of it but the witness used the existence of that document to explain why he gave a certain answer.
 I believe it's appropriate for me to probe his state of mind and his understanding at the time he gave that answer to eliminate, if possible, the question of any confusion in his mind.
 THE COURT:  The point that the Court is making is that you cannot through this witness and without the exhibit being in evidence get the inforrlation from the exhibit.
 Your question relating to the, whether or not the document reflected her observations which really goes to the content of the document --
 MR. TAIKEFF:  No, Your Honor, I was asking for a generic description --
{373}
 THE COURT:  All right.
 MR. TAIKEFF:  -- as he understood the documnent as he looked at the courtroom last June or July.
 Q  (By Mr. Taikeff) Do you understand that question, Mr. Adams?
 A  No. I'll need the question.
 Q  All right. Let me see if I can try it a different way.
 You looked at a document. After looking at that document you were asked this question:  "And did you not give instructions at 12:18 that there was a red pickup leaving Jumping Bull Hall area going north and you instructed people to stop this pickup?
 A  Yes."
 Now when that event occurred, namely that you were asked that question and you gave that answer, it was at a time after you had looked at the Defendant's Exhibit 75 for identification; yes or no?
 A  I can't answer that yes or no, Mr. Taikeff.
 Q  Why not?
 A  Because the way the question is stated.
 Q  It's a statement seeking chronological fact.
 Did you give that answer to that question after you looked at the document which in this case is marked Defense Exhibit 75 for identification; yes or no?
 A  To the best of my recollection; yes.
 Q  Now speaking in general terms only, you've told us so far {374} that the document in question was a 302, an official FBI report, is that correct?
 A  Yes.
 Q  And it reflected or summarized an interview with Ann M. Johnson, an FBI employee, is that correct?
 MR. SIKMA:  Same objection, Your Honor. We've been through this about three times.
 Counsel has asked questions about it. It's been asked on redirect examination.
 MR. TAIKEFF:  I haven't gotten any answers yet, Your Honor. Of course, I keep getting interrupted with objections.
 MR. SIKMA:  Your Honor, I object to those statements. It's perfectly proper for the Government to make an objection to the objectionable question.
 THE COURT:  The jury will remember my preliminary instructions, that it's proper for both sides to make objections.
 I'm not sure I understand now what the state of the record is.
 MR. TAIKEFF:  The state of the record is, Your Honor, that the witness has said that he answered the question and, which I read to him and reread to him after he looked at the document which is Defendant's Exhibit 75 for identification; that that document was an FBI 302 and I'm up to the point where I was getting to the last point of departure, namely, whether that was an interview with an FBI employee or a recordation of {375} an interview with an FBI employee by the name of Ann M. Johnson.
 I am probing his state of mind at the time he answered the question on page 238 of the transcript of the last trial.
 THE COURT:  Very well. That will be allowed.
 Q  (By Mr. Taikeff) Now did you, when you looked at that document and before you gave that answer to that question, recognize the document as a report by Special Agent O'clock of an interview with an FBI employee by the name of Ann M. Johnson; yes or no?
 A  Yes.
 Q  And you told us that as you recall your state of mind in June or July of last year when you were testifying, you recognized that that report contained her observations, right?
 A  Yes. Her observations.
 Q  What kind of observations? Don't tell us the content. Just generally what kinds of observations?
 MR. SIKMA:  Your Honor, I would object to this.
 It's obvious that this document rerers to hearsay evidence that is not only one step removed but two steps removed. It is a recollection of another individual.
 Your Honor, the effect is the same on the jury or, whether or not he's offering the exhibit or not. It's totally improper.
 MR. TAIKEFF:  I am not offering the content.
{376}
 The Government has made inquiry about the witness's state of mind in an effort to rehabilitate with reference to the question and answer that I put to him on cross.
 I am now probing his understanding about that document and they keep interrupting me when I get to this particular question. It's been ruled on twice already.
 THE COURT:  The objection, as I understand it, goes to your question relating to the document reflecting her observations and I will sustain that objection again.
 MR. TAIKEFF:  He's already answered the question twice, Your Honor, without objection. He said it does contain her observations.
 All I asked him is what kinds ot observations does it reflect, not what the content of those observations were.
 MR. SIKMA:  Your Honor, that's my objection, the kind of observations and the observations --
 THE COURT:  Sustained.
 Q  (By Mr. Taikeff) When you read that document, Mr. Adams, were you then sufficiently secure in the knowledge that you had made that statement so that you answered yes to the question which was put to you; yes or no?
 A  No. I was not.
 Q  You were not?
 A  No.
 Q  You were on the road, is that correct; yes or no?
{377}
 A  Yes.
 Q  And you were uncertain about an answer and you'd said yes without qualification; is that what you're telling us; yes or no?
 A  Yes.
 MR. SIKMA:  Your Honor, --
 MR. TAIKEFF:  No further questions.
 MR. SIKMA:  Your Honor, I did not have an opportunity to object to that question.
 I would object to the question as, first of all, being highly improper and I would ask that it be stricken, the answer be stricken. It was argumentative and misleading.
 THE COURT:  Specifically which question are you referring to?
 MR. SIKMA:  The last question, Your Honor, with regard to the question that was asked with regard to his intent at the time the question was answered because I don't believe the witness understood the question.
 MR. TAIKEFF:  How does Mr. Sikma know what the witness understood, Your Honor.
 THE COURT:  Well, the question's been answered. I'm going to leave the record as it is.
 MR. SIKMA:  I just have one question, Mr. Adams.
 MR. TAIKEFF:  I object, Your Honor. There's been direct, cross, redirect, recross. I believe that's appropriate.
{378}
 MR. SIKMA:  Your Honor, he has left the witnsss with a, without an opportunity to --
 THE COURT:  My normal procedure is that until they get completely out of line, either side, I do not abide by any normal limitations on direct and cross, redirect and recross.
 You will have an opportunity to recross if there's some question asked.
 REDIRECT EXAMINATION
BY MR. SIKMA
 Q  Can you explain what you meant by your last answer?
 A  Yes. I answered that question yes when I was under oath a year ago because I was answering the question in regard to that document.
 There are several pages in there where we had three different vehicles and that we were, I was referring to one, counsel was referring to another and I think it all finally, if you go through the entire thing it's going to finally come out in the end exactly which vehicle was where and my observation of each one of them.
 Q  And what was your observation as to the red pickup that --
 MR. TAIKEFF:  Objection. The question has been asked and answered ad nauseam.
 THE COURT:  Sustained. That's cumulative.
 MR. SIKMA:  I have no further questions, Your Honor.
 MR. TAIKEFF:  May I have the last word, Your Honor?
{379}
 THE COURT:  You may.
 RECROSS-EXAMINATION
BY MR. TAIKEFF
 Q  Let me read to you the question from page 238.
 MR. SIKMA:  Your Honor, I would object to that as being clearly repetitious.
 THE COURT:  That is also cumulative.
 Q  (By Mr. Taikeff) All right. Do you recall the question you were asked?
 MR. SIKMA:  Your Honor, again I would make the same objection.
 MR. TAIKEFF:  I just wanted to know whether the witness recalls the content of the question.
 MR. SIKMA:  Your Honor, he's answered that and it was cumulative.
 THE COURT:  He may answer that.
 Q  (By Mr. Taikeff) Do you recall the content of the question?
 A  Which question now?
 Q  That was put to you last summer which is the subject matter of these inquiries; yes or no?
 A  There were numerous questions. That's why --
 Q  Are you saying that you have some failure of memory in that regard; yes or no?
 A  Well, I recall several questions but I want a specific question.
 MR. TAIKEFF:  Then, Your Honor, am I permitted to {380} assist the witness by reading the question to him?
 THE COURT:  If you are reading the question regarding the pickup, you will not be permitted. It's my same ruling that it is cumulative. I ruled that the United States' question was cumulative and your question was cumulative.
 MR. TAIKEFF:  That I want to ask the witness a question about the inquiry that was made of him and now he tells me he doesn't remember what question I'm talking about.
 Your Honor, I have a suggestion.
 Q  (By Mr. Taikeff) Look at page 238, sir, and look at lines 19, et cetera, as long as you need to.
 Now, sir, are you able to look at that page and think at the same time?
 A  Yes.
 Q  Does that question inquire of you as to whether something was in a 302 or did it ask you whether you did something?
 A  It refers to an entry that was in a 302.
 Q  It does?
 A  Yes. It does.
 Q  Read the words to me that reflect that fact in the question, just those words.
 MR. SIKMA:  Your Honor, I would object to that as cumulative.
 He's given the answer to the question and has cleared up what was on the witness's mind. Now he wants to go through the entire line of questioning once again.
{381}
 THE COURT:  You may answer counsel's question.
 A  All right. Starting at Line 9 --
 Q  (By Mr. Taikeff) (Interrupting) Yes.
 A  (Continuing) Question:  Let me ask you this:  You have in front of you the radio log monitored by Miss Johnson, do you not, I think it is "B"; and that is the same document that I looked at -- I believe it is referring to your 75?
 Answer:  Yes.
 And I ask you to look at the entry for 12:18 p.m., that is about the bottom of the first page -- yes -- and over to the top of the second page. Do you remember you arrived approximately noon?
 Answer:  Yes, that is right.
 Then the question:  And did you give instructions at 12:18 that there was a red pickup leaving Jumping Bull Hall area going north, and you instructed people to stop this pickup?
 Yes.
 Q  O.k. Now as to that last question, was that question put to you to find out what was on the paper or what you actually did on June 26th, 1975?
 A  My interpretation of the question, and I answered it, it was on the paper.
 Q  You understood that question to mean, do you see it on the paper?
 A  Yes.
{382}
 Q  So a lawyer handed you a piece of paper on which something was written and asked you those questions to find out from you what was on the piece of paper, is that your understanding? "Yes" or "no".
 A  Yes.
 MR. TAIKEFF:  I have no further questions.
 MR. SIKMA:  That's all, your Honor.
 THE COURT:  You may step down. (Witness excused.)
MR. HULTMAN:  May we approach the bench, your Honor, with reference to the next witness pursuant to counsels' previous discussion?
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 MR. HULTMAN:  Your Honor, the Government in good faith is attempting to meet -- even though there may not have been a ruling from the Court yet, your Honor -- requests of the Defendant with reference to specific exhibits and specific testimony, so this is one of those indications had. We had trouble with it yesterday. I just want to make sure we are not putting something before tne jury that there is some question about.
 The Government now intends to call Mrs. Coler and that's one of the items --
{383}
 MR. TAIKEFF:  (Interrupting) Thank you very much, I appreciate that.
 MR. HULTMAN:  (Continuing) -- to which counsel objected. He requested that I not even mention the name in calling the witness. I don't think under the Rules I need to, but I have met the request.
 MR. TAIKEFF:  Your Honor, I believe that he intends to produce a photograph of the deceased agent taken at the time when, I think he was either entering or graduating from the FBI Academy, and the testimony will be offered through the witness or the mother -- in one instance it is the wife, and one instance it is the mother.
 We feel that this would be irrelevant to begin with, and in any event highly prejudicial because it will appeal to the emotions rather than the intellect of the jury. There is no dispute that the people who died on that day were the two FBI Agents whose names are before the Court, and there is no question about identity. There is no need to introduce photographs which were taken at a much earlier time which show them to be rather attractive young people, which only emphasizes the tragedy of what occurred that day; but there can be no legitimate probative reason for offering these photographs and testimony except to inflame the passions of the jury. That's why we have objected in advance.
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 MR. HULTMAN:  Your Honor, the intent of the Government is to introduce them for a number of probative reasons; and we think it is very legitimate; that it is Government's Exhibit No. 27 and Government's Exhibit No. 28; that those are photographs of the two agents recognizable by a number of people who will be called as witnesses. It will be the only type of identification. They certainly would not necessarily recognize them by the status of their faces to which counsel has already objected in many instances; and it is for that probative value that I intend to call these witnesses and for that limited purpose, your Honor, to introduce these photographs.
 MR. TAIKEFF:  We will solve that very simply. Any witness who is unable to state of his or her own knowledge that the person about whom the witness has been called to testify is either Coler or Williams, we would stipulate that the person who is questioned about is called either Coler or Williams.
 THE COURT:  The ruling of the Court, of course, is that the parties are not required to stipulate.
 Furthermore, the allegation is that the two persons were murdered. That is what the case is all about, and I think that the evidence simply showing the picture, of course, of two persons is clearly admissible and will be allowed.
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 MR. HULTMAN:  Ellie, would you be willing -- I mean, I understand what the intent of your motion is; and I have tried to meet what your needs are, the same as mine.
 MR. TAIKEFF:  Yes, I have no question about that.
 MR. HULTMAN:  You are not really objecting to the two exhibits, are you; you are objecting primarily to the testimony of the two witnesses, or maybe you are?
 MR. TAIKEFF:  No. My primary objection was the manner of introducing it. My secondary objection was the introduction of the photographs themselves, but as between the two, if you were about to ask whether I would stipulate those are the photographs, in light of the Judge's ruling I most assuredly would.
 MR. HULTMAN:  There would be no necessity for me to call either of the two witnesses.
 THE COURT:  Is that the only purpose you are going to call them for?
 MR. HULTMAN:  That is the only purpose for which the Government sought --
 THE COURT:  (Interrupting) Then I would say that that is the way it should be presented.
 MR. HULTMAN:  The other thing though, your Honor, I would want to make sure now, as counsel said earlier, his willingness to stipulate with reference to any witness who may be called.
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 MR. TAIKEFF:  There is no question we will not give you any difficulty in making proof in that regard.
 MR. HULTMAN:  All right. The Government will formally offer, when we go back, your Honor, the two photographs, the two exhibits; and I will not call the two witnesses.
 THE COURT:  Very well.
 MR. TAIKEFF:  Thank you.
 (Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
 THE COURT:  You may proceed.
 MR. HULTMAN:  May it please the Court, your Honor, as per stipulation at this time -- and if I in any way misstate, Mr. Taikeff, what the oral stipulation was we had at the side bar, why, you correct it in any way -- the Government and the Defendant at this time stipulate, your Honor, into evidence Government's Exhibit 27 and Government's Exhibit No. 28 which are photographs, an individual photograph in each instance of each of the two FBI Agents, Mr. Coler and Mr. Williams.
 It is further my understanding of that stipulation that there will be no challenge by counsel for the Defendant as to these photographs in terms of any witness recognizing them as either of these two individuals, that there will be no objection.
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 MR. TAIKEFF:  That's correct, your Honor.
 MR. HULTMAN:  Exhibit 27, we offer, your Honor, then is a photograph of Special Agent Williams, and Exhibit 28 is a photograph of Special Agent Coler.
 THE COURT:  Would counsel approach the bench once more?
 (Whereupon, the following proceedings were had at the bench:)
 THE COURT:  I assume in stipulating that you are not waiving the objection that you made at the bench?
 MR. TAIKEFF:  That's correct. I had indicated in my willingness that it was in the light of your Honor's ruling.
 THE COURT:  Just so the record is clear on that point.
 MR. TAIKEFF:  I think Mr. Hultman has made a very reasonable offer and a very reasonable compromise. I technically object to the use of the photographs.
 THE COURT:  I understand. I think your objection was based on possible prejudice, and I just want the record to be clear that that objection has not been waived.
 MR. TAIKEFF:  Thank you, your Honor. I appreciate that.
 (Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
 THE COURT:  Mr. Hultman, before I receive those two {388} exhibits, would you state for the record which exhibit is the picture of Mr. Williams and which is the picture of Mr. Coler?
 MR. HULTMAN:  Yes, your Honor. Exhibit 27 is a photograph of Special Agent Williams.
 THE COURT:  Very well, thank you.
 MR. HULTMAN:  And Exhibit No. 28 is a photograph of Agent Coler.
 THE COURT:  Thank you.
 MR. HULTMAN:  Could I proceed to take one moment to pass these photos to the jury at this moment?
 THE COURT:  You may. The exhibits are received.
 (Plaintiff's Exhibits Nos. 27 and 28, having been previously duly marked for identification, so offered in evidence, were received.)
 (Jury examines exhibits.)