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

TESTIMONY DR. THOMAS T. NOGUCHI A
CROSS DR. THOMAS T. NOGUCHI  B
REDIRECT DR. THOMAS T. NOGUCHI C
{BENCH} AVAILABILITY OF WITNESSES  D

VOLUME 4

MR. SIKMA:  The plaintiff calls Thomas Noguchi.
 Your Honor, may we approach the bench while we're waiting for Dr. Noguchi?
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 MR. SIKMA:  Dr. Noguchi this morning has informed me that he's make some, using some drawings to illustrate certain things about the distance and so on the distance of firing and certain effects and so forth. I would like to know if the Clerk has available a stand or if there's something available where these things can be clipped on. Perhaps the blackboard will fit.
 MR. LOWE:  Is that his pad there?
 MR. CROOKS:  What about the green board. We could take that one down.
 MR. LOWE:  Take the map. You don't really need the northwest map there, do you?
 MR. SIKMA:  No, we don't need that.
 THE COURT:  Why don't you remove the map and use this stand.
 MR. LOWE:  Would you want to break a little earlier for lunch and come back a little earlier and give him time to {608} set it up?
 MR. SIKMA:  That would be fine. We can get started, though.
 THE COURT:  You can get up through the preliminaries.
 MR. SIKMA:  Sure, through the preliminaries and so forth
 MR. LOWE:  Okay.
 DR. THOMAS T. NOGUCHI,
being first duly sworn, testified as follows:
 DIRECT EXAMINATION
BY MR. SIKMA:
 Q  Sir, would you please tell the jury your name.
 A  I'm Dr. Thomas T. Noguchi, N-o-g-u-c-h-i.
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 Q  And Mr. Noguchi, what is your occupation?
 A  I am the chief medical examiner and the county coroner for Los Angeles County.
 Q  And where do you live, Dr. Noguchi?
 A  I reside in Los Angeles. Are you interested in any formal address, sir?
 Q  No. I am not.
 Would you tell the jury what your education and background.
 MR. LOWE:  Your Honor, we will stipulate that Dr. Noguchi is a highly qualified forensic pathologist, wouldn't deprive the Government of some impressive credentials. They could certainly be summarized briefly.
 We have no dispute with Mr. Noguchi's qualifications.
 Q  (By Mr. Sikma) Very well. Perhaps Dr, Noguchi, you could summarize your qualifications for the jury so they would understand a bit about your background and education and qualifications?
 A  All right, sir. I graduated from Nippon Medical School in Tokyo in 1951. I was appointed as an intern at University Hospital, University of Tokyo. I served one year, rotating intern at the Medical Center, from 1951 to '52.
 Then I came to the United States of America and served another required rotating internship at the Orange County General Hospital, now known as Orange County Medical Center.
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 Then I was appointed as a fellow at the department of Pathology at Lima Lind University School of Medicine, and then I was briefly in private practice also but ha,d returned to the pathology residency in 1956; and I have completed the specialized training in anatomic pathology and clinical pathology, and I completed in 1960.
 Then I was appointed as an Assistant Professor of Pathology. I taught in Medical School, and I was also appointed as Chief of the Autopsy Service for White Memorial Medical Center.
 Then in 1961 I was appointed as a -- still being Assistant Professor, however -- I was appointed as deputy medical examiner for the Department of the Chief Medical Examiner of Los Angeles County; and I have taken one year additional specialized training in the field of forensic pathology and I have progressed through the usual ranks of what we call the deputy medical examiner.
 Then I was appointed as a Chief Medical Examiner and County Coroner in 1967.
 Q  And you have held that position since that time?
 A  Yes, sir.
 Q  What are your duties and responsibilities in that office?
 A  The duty and responsibility of my office is very clearly described in the California Government Code. It is the duty of the county coroner to inquire into the circumstances {611} surrounding the death of unusual, sudden death or death by violence. That also includes death by homicidal means, a number of different type of accidents such as a traffic accident, accidents by gunshot wounds, et cetera, and also that investigation of death by suspected suicides.
 Naturally, there a number of deaths later found to be deaths as a result of a natural causes such as diseases.
 Q  Do you have any idea of the total number of cases per year that your office is responsible for?
 A  Yes, I do. I am responsible for investigations and certification of death of over 16,000 cases a year.
 Q  And do you know how many of these deaths are caused as a result of gunshot wounds or where gunshot wounds are part of your analysis?
 A  Over 1,000 cases of death attributable to the gunshot wounds.
 Q  What kind of information -- or first of all, let me ask you:  What is the purpose of your examinations as such; why do you make these examinations?
 A  The purpose of the examinations is that, of course -- there are different types of examinations, however. The examination on the scene before the body is to be moved where necessary physical evidence is to be secured for further examination. Naturally, a photograph is a very important aspect.
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 Then when a body is to be removed to our Forensic Science Center -- the Center dedicated for this type of work -- and then close examination of the deceased's clothing, fingernails and physical evidence, such as presence or absence of gunpowders; and a careful examination of the clothing is done with photographic documentation. An x-ray is often taken in the search for floating substances such as fragments of a bullet; and then the autopsy is commenced.
 The autopsy is to determine not only cause of death, such as stab wounds or gunshot wounds, but how that such injuries was caused, by not so much who had done it, but what means, whether the deceased person was facing toward an assailant, whether or not the gun was placed to the deceased person in a very close range, or which of the injuries actually would be a cause of death in the case of the multiple injuries, such as bruises, stab wounds and gunshot wounds. It is important to determine which wound was in fact fatal.
 These are just brief reasons why examination is ordered to be conducted.
 Furthermore, the toxicology study, such as the presence and absence of alcohol, is also important; and naturally, in preparing a case you prepare the suitable document for the examination.
 Q  Is it fair for me to say that what you are doing is reconstructing the circumstances around the death of an {613} individual at the time of his death?
 A  Yes. Often done, yes.
 Q  Do you in the course of your work have occasion to assist other law enforcement agencies other than Los Angeles County, other pathologists in determining how a death occurred and the circumstances surrounding the death of an individual?
 A  Yes.
 Q  Did you have occasion to meet with Mr. Bloemendaal and myself and examine the physical evidence and so forth relating to the deaths of Special Agents Ronald Williams and Jack Coler?
 A  Yes.
 Q  And Doctor, could you tell me what kind of information you had available to you at the time that you made that examination?
 THE COURT:  I think we completed the preliminaries and we are very close to the time I usually recess for the lunch hour so the Court will recess at this time until 1:30.
 (Whereupon, at 12:25 o'clock, p.m., the trial of the within cause was recessed until 1:30 o'clock, p.m.)
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THE COURT:  The jury may be brought in.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 Q  (By Mr. Sikma) Dr. Noguchi, I asked the last question, I'll repeat it. Could you tell me what kind of information you had available to you at the time that you made these examinations?
 A  There are number of evidence and materials and documents available to me. I believe there were 21 photographs of Agent Williams, photograph taken at the time of examination, that is, autopsy, and I believe 15 photographs during autopsy examination of Agent Coler. And there was one large, enlarged sketch depicting Pine Ridge Indian Reservation. Six x-rays from Agent Williams, six x-ray films from Agent Coler. Subsequently clothing worn by Agent Williams and Agent Coler were available to me for examination for specific purpose as to direction of the, purpose of establishing the direction of the gunshot wounds.
 Q  With regard to these photographs of Special Agent Coler's clothing, are you referring to Government Exhibit 73 on Government Exhibit 72A?
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 A  Yes, sir. These photographs were taken under my direction, was taken by my staff photographer William Lystrup, L-v-s-t-r-u-p.
 Q  I'll show you Government Exhibit 24A on both sides. Are those also photographs taken at your direction?
 A  Yes, sir.
 Q  Those are Special Agent Williams' clothing, is that correct, as you understand it?
 A  Yes.
 Q  Did you also examine photographs, aerial photographs of the area around the crime scene as well as crown photographs of the area itself?
 I will show you Government Exhibits 56 and 54 and ask if you've had an opportunity to examine those photographs.
 A  Yes.
 MR. LOWE:  If you represent that he has, Mr. Sikma, it's good enough for us. I don't want to have him look at each picture and wonder if they are pictures he's seen.
 MR. SIKMA:  I would agree with that. And I'll indicate that the witness has had an opportunity to examine Government Exhibit 57 which are photographs of Special Agent Coler's vehicle and Government Exhibit 58 which consists of photographs of Special Agent Williams' vehicle as well as the autopsy photographs of Special Agent Williams and Government Exhibit 60, in Government Exhibit 60 and the autopsy photographs of Special Agent Coler in Government Exhibit 59.
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 Q  (By Mr. Sikma) These items were used by you then in reconstructing the incident as you best believe it to have occurred, is that correct, Dr. Noguchi?
 A  Yes, sir.
 Q  And what kind of certainty do you base this on or what is the term that you use in order to base or to state this certainty?
 A  The opinion which I would express would not be a guess, would be called within a reasonable medical certainty, that is, the opinion is not only reasonable but also that opinion has a basis of, based on medical and scientific facts and circumstances.
 Q  Now in order to best depict your opinion, you'll notice that there is to the back of you and to your right a large chart of a human body. Would you explain to the jury what these are for, what you will use these for.
 A  Those --
 MR. LOWE:  Excuse me. May I sit over here, Your Honor, so I can see the chart. The witness blocks it from where I'm sitting.
 THE COURT:  You may.
 A  Although very important to have photographs and in addition to photographs sometimes it is necessary to draw a diagram to depict the precise location of a gunshot wound and special reference to what direction, where that came from and so {619} forth. That is the fundamental basis for reconstructing the approximate position of that deceased at the time of gunshot wound.
 Q  (By Mr. Sikma) I notice that in these diagrams which you have here the individual depicted in the diagram is in a standing position. Does that mean that the persons who you have examined were in a standing position at the the the incidents occurred?
 A  Not necessary. The purpose of this diagram is to offer standardized diagram. The reference was made specific area such as left arm raised. That is the area whereby the relationship of the arm to the trunk, the body is the basic issue. Not necessary that the deceased person, that is, special agent, was in position at the time of gunshot that he received.
 Q  Now from your examination of these factors, the physical evidence and photographs, do you have an opinion as to the chronology of events to a reasonable medical probability or certainty?
 A  Yes, I do have an opinion.
 Q  With regard to these events, would you outline first of all with regard to the first gunshot wound which you believe occurred, at least in your opinion from the examination of the events as they took place and that you have examined.
 A  May be permitted to approach diagram.
 THE COURT:  You may step down. Yes.
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 **THE WITNESS:  Thank you, Your Honor.
 A  This is a diagram of the left side of the body of Special Agent Williams. The diagram shows the left arm raised approximately 45 degrees or maybe more (indicating).
 The autopsy report prepared by Dr. Bloemendaal describes very carefully as to location of gunshot wound.
 If I use some coloring pen, according to the autopsy report the gunshot wound of the left arm was found the upper, left upper arm (indicating). This gunshot wound was depicted in Government Exhibit 60, page 3 and 8.
 And then the autopsy report further describes the gunshot wound penetrate into the left upper arm, then exit (indicating). I will place the term "exit wound."
 Then there was two additional injuries related to this gunshot wound of the left upper arm (indicating), below his armpit on the center line of the left side of the body and also there was another gunshot wound where the copper, portion of the copper jacket was recovered.
 Based on the four points, try to place in center line or straight line a general impression that the left upper arm was indeed extended this fashion (indicating). This does not mean that forearm was extended this fashion (indicating), nor this way or possibly forearm could have been bent this fashion (indicating).
 Q  What position would you believe that Special Agent Williams {621} was in at the time that he received that wound?
 A  The arm was laid in this fashion (indicating). Please disregard the forearm, position of forearm. And this is approximately relative position I would consider that the points would be in straight line (indicating). This does not mean that Special Agent Williams was in this position. Could be this position, could be this position also (indicating) but the main important portion is that the relative position of left upper arm to the body (indicating).
 Q  Now when you tried to determine what he was doing at the time he received that wound, what things do you take into consideration? For example, the direction of the projectile of the gunshot?
 A  Well, certainly recognizing entrance wound and exit wound and also that the fragments of a bullet such as copper, those are the findings of great importance and further the clothing worn by Special Agent Williams also to be studied.
 In this case there were holes indicating that Special Agent Williams was indeed wearing white, a blue print sports type of a shirt at the time he received gunshot wound.
 Q  Could you tell what things that you would believe him to be doing at the time he received this gunshot wound, what type of activity?
 A  Assuming back again the position of the left upper arm (indicating) and this could represent someway of holding objects {622} such as rifle or could be, could be any other, any other function. However, based on the crime scene, the photographs of having two vehicles and what the speculation might be doing such as communication. Possibly it is also consists of having communication units such as a radio unit in left hand.
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 Q  What would have been the lethal effect, or in other words would this have been such a wound that would have caused death?
 A  It is my opinion the rifle wound of the left upper arm was not lethal. However, it's a severely disabling wound because not only pain, but the wound actually penetrated the entire thickness of the left upper arm. That is, penetrate through the muscle layers so that the special agent would have extremely difficult time using left arm, left arm again.
 Q  Are there any other conclusions that you drew from this particular wound?
 A  Yes. I think a very important whether or not the muzzle distance. There was no mention of a powder residues on the surface of the shirts or surface of the skin. The shirts were examined by FBI laboratory. That based on such a report I would form the opinion that the wound of the left upper arm was a distant, distant shooting.
 Q  And this was in the report, a 44 magnum round?
 A  Yes. According to the report which I had in my possessions that a fragment recovered from the left waist area was later identified as a 44 magnum copper jacket.
 Q  Is this a low speed or high speed or intermediate speed projectile, do you know?
 A  High speed being A.R. 15 and known as M.16's. Where muzzle speed of over 3,000 feet per second. This 44 magnum would be considered as a low. There is over perhaps a thousand. But it's {624} as high speed as an M.16.
 Q  Very well. What is the next, as far as Special Agent Williams was concerned, what was the next wound that you considered by way of chronology.
 A  That is the gunshot wound of the left foot, however, as to the sequence of the left upper arm wound and left foot, could be left foot injury, could have occurred earlier than this.
 However, again it is a distant shot, and from the examinations of the autopsy and detailed descriptions indicate that as I am standing here will be shooting downward, that this would be caused by, as a person kneeling like this (indicating) whereby bullet striking the left foot further.
 It might also confirm that examination of a blue trousers worn by Special Agent Williams shows as near the trajectory of the left foot there is a tear of the fabric. If the special agent was in a standing position trajectory is this way, most unlikely and again the gunshot wound on the left foot was not fatal, although it's a very painful, it's not only a hemorrhage, but based on the two gunshot wounds that Special Agent Williams would have absolutely difficult time walking or using the left hand.
 Q  What was the next wound in the sequence of wounds that you, gunshot wounds, that you examined that probably occurred in your opinion?
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 A  It is my opinion, next sequence would be that rifle wound to the Special Agent J.R. Coler that is according to autopsy, it was a large gunshot wound of the right, what we call medically, anticubital area, but the bend here (indicating). And exit wound was inside of the right arm just above the elbow, slightly higher.
 Then there was another gunshot wound which correspond to the gunshot wound of the right arm. That is the basis for my opinion as to approximate, relative position of the right forearm, slightly forward and forearm being slightly bent upward.
 Q  I will show you from Government Exhibit 57 and Government Exhibit 54 if you can explain to the jury if there is, or if there are any photographs which assist you in making a determination as to where Special Agent Coler was, or what was happening at the time of, that he received that gunshot wound.
 A  May I just complete this diagram? By apprising gunshot wound on the right arm then this is an exit wound and there is large, another gunshot wound. Based on that the bullet came from front to back directions nearly horizontal, but slightly downward.
 Referring to the Government Exhibit 57, page 7 or 8, page 8, specifically page 17, that based on autopsy findings alone this gunshot wound was not the type of gunshot wound caused by and deformed a bullet.
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 Take an example. The bullet striking the right arm, penetrating, then exits the inside of my right upper arm, and then strikes my right side of body. And this condition injury observed in the autopsy report on Special Agent Coler does not match. This injuries depicts in the peoples Exhibit 59, page 7. These are large, these are large wound, caused only by the bullet striking a hard object and causing deformity that becomes a multiple bit of fragments. That core of the bullet striking the body. That object is called, scientifically we call intermediate target.
 For this reason it's visible to shoot some kind of intermediate target, or front of the Special Agent Coler. Based on the photograph much as of Government Exhibit 57, page 17, showing inside of trunk of the car driven by Special Agent Coler. Showing large defect, or a hole on the lower portion of the right corner. And in addition to this photograph, Government Exhibit 57, page 8, showing the splashing of the blood on the surface of a trunk and bumper and rear like with a different type of splashing of blood indicating that were likely, most likely Special Agent Coler could have been standing or similar act. I don't mean standing straight, but behind the trunk at time, at the time the bullet struck the trunk, which was raised and causing -- and now at this time the bullet is this size (indicating). That means the bits of fragments traveling with a core striking Sgt. Coler, or Special Agent Coler.
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 Q  I would like to direct your attention to Government Exhibit 54 on page 1 and page 9 and ask you whether or not you viewed those photographs in making that determination?
 A  Yes, I did.
 Q  And in making that determination were you able to determine with reasonable medical certainty as to the direction or the area from which that gunshot was fired?
 A  Yes, I do have an opinion.
 Q  And what is it?
 A  Placing the deceased Sergeant, Special Agent Coler, in the back of the car of the peoples' Exhibit -- the Government Exhibit 54, page 1, and placing the point of entry of the bullet extending further forward, that is right side of the car, and also I believe Special Agent Coler's height is about 70 or 71 inches, that is 6 feet or 6-1, this diagram is 6 feet, and that is a figure, measures 70 inches. The distance from gunshot wound ot the right forearm from the floor and in regard to the height of the car where the bullet holes were found, this gives a slight horizontal, or a slightly upward trajectory.
 Q  What would have been the effect on Special Agent Coler after receiving this type of wound?
 A  This iniury is indeed a very severe. This injury is almost like explosive injuries, that is the large portion of a flesh had been taken away and large blood vessels got torn {628} open, major nerves had been torn. That's not only from suffering extreme pain, extreme bleeding and of the person, Special Agent Coler will suffer great deal of shock, almost like shock. And further he would not be able to use right arm at all.
 Further this type of injuries would be necessary to use other side of, other side, for example the left, left hand to try to stop the bleeding. So that Special Agent Coler more likely had both hands tied.
 Q  Doctor, you examined the trousers in Government Exhibit 71; is that correct?
 A  Yes, sir. And the photographs involved there.
 Would you be able to, viewing that, make a statement as to the movement that you believe took place subsequent to the wound of which you are speaking?
 A  May I use the diagram?
 Using a diagram, the khaki pants that Special Agent Coler was wearing, there were a number of blood stains, large. Not the small splattering type. It's a large drops of blood, mostly on the right thigh.
 And also forensic scientists are trained to interpret the blood stain as to how, what is the height where the blood started dropping.
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 For example, a drop of blood striking a surface of the floor from the height of about four feet is considerably different from the blood that drops from a one foot, the size would be different; and further, that if a person is moving, the blood stains is different, and also that the basis for this is that, for example, blood strikes the floor, then usually round. Then the higher the blood or amount of blood is the larger, then the diameter of the bloodstains increases. Common sense, you don't have to be a Doctor to explain the detail. You can do it with a drop of water or perhaps if you would prefer, take a little color.
 However, if this blood (indicating) is striking the surface, perhaps at a 45 degree, the bloodstains would not be round. It would be like this (indicating), just to remember, exclamation mark is in reverse. The blood strikes, then exclamation mark. That would be the reverse.
 These telltale evidence often helps for the forensic scientist to be able to give reasonable opinion as to what might have happened.
 For example, having a large gaping wound, large amount of blood gushing from the torn large arteries; and the bloodstains are only found on the left side and mostly round, give the impression this type of position (indicating).
 In addition, that the examination of the photograph reveals the cloth tied around, above the gunshot wound of the {630} right arm used as form of tourniquet. This cloth (indicating) came from Special Agent Williams because the shirt that is opened -- and use a mannequin -- then hold it, much exact location of gunshot wound found on the Special Agent Williams, so that the Special Agent did not surrender his shirt before he was shot but after.
 It gives additional reason for us to believe that because of having -- Special Agent Williams having injuries, painful injuries to the left, more likely based on reasonable medical certainty that clothing would be removed by Special Agent Williams' right hand. Two buttons were missing, indicating the attempt was made to rip it open -- and somehow entered to the arm of Special Agent Coler, so that is the basis of my opinion Special Agent Williams was shot in the left arm first. Then subsequently Special Agent Coler was shot as he was standing behind the trunk, not knowing exactly what he was doing, but behind the trunk is the bullet striking the open trunk, receiving injuries. Bloodstains on the bumper, rear bumper, and the lights, and so forth; and then motion of this (indicating) or more likely here (indicating) maybe. Right side, yes, would be more like this (indicating), and tourniquet came. That gives the approximate positions.
 Because of the pain, because of bleeding, it would be quite reasonable to assume that Special Agent Coler has taken reclining position.
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 Q  (By Mr. Sikma) From your examination of the photographs, can you tell approximately where he went when took the reclining position, where he went as in relationship to his vehicle.
 A  It is my opinion that, referring to Government Exhibit 57, Page 7, this is the left side of a car driven by Special Agent Coler. This page depicts that rear door near the rear wheel; and brown stains, according to the report prepared by the FBI, this to be human blood, and where the Special Agent was found later.
 Having additional gunshot wounds to the head, that is (indicating), rifle wound was found (indicating), his forehead, almost like horizontal direction. That is the basis of the examination of the X-rays, and such size and so forth indicate gunshot wounds were caused by a bullet traveling from right to left; and further, there is another gunshot wound (indicating). It is rather small, indicating that bullet was not deformed and would be the size of a smaller bullet, size of a smaller category. Strike at the right side of the jaw, shattering the teeth and the jawbone, and taking much of the soft tissues located in the neck area; and based on the X-rays there a number of fragments, hundreds of fragments (indicating), found on the left side of the neck.
 As the bullet strikes the human body, the minute fragments fan out (indicating). From the center portion or mass and the {632} entry, one often is given (indicating), an indication of the direction of the bullet's traveling.
 That is the left -- strike that, please -- right to left direction. However, there was no exit wound on the right wound of the jaw. Thus, the opening, the bullet striking the forehead more likely caused splashing of blood to the surface of the door where the Special Agent was found, so answering your question would be he must have taken reclining position, close to the car where he was found dead.
 MR. LOWE:  Your Honor, we have offered to stipulate that he was lying on his back on the left rear of his car, as I believe is shown in one of these pictures. I don't know if Dr. Noguchi is aware we have offered to stipulate all of this stuff. It may be he can shorten a lot of the background and state his conclusions with the assistance of the Government.
 MR. SIKMA:  We are going into that, your Honor.
 Q  (By Mr. Sikma) Would you then -- do you have other diagrams which you use for Special Agent Coler to show if you can the distance from which this gunshot wound was fired?
 A  Yes. Referring back to the rifle wound of the forehead (indicating), there were a number of very tiny -- tiny, I might say this, like a pepper sprinkled on the surface of a kitchen, short of a -- not as extensive, but very lightly, just sprinkle pepper on the skin (indicating), tiny; but those are found on {633} the forehead and right temple, and further, the X-ray shows the tiny metallic fragments imbedded on the surface of the soft tissue, indicating that the muzzle distance will be crossways. I don't mean very close, about in feet, that is, past two feet -- detailed studies should be performed. However, it is not a distance shooting and injury of the right jaw also gives impressions that some metallic fragments were imbedded in X-rays.
 Again it is my opinion it is not a distance shot but at close range.
 Q  How close a range would you say in your opinion that it was fired?
 A  Of course, these metallic fragments does not go any considerable distance. It is naturally contact wound like this, you would have a considerable deposit of metal and unburned powder. As the distance increases, for example, two inches, you would expect to find still such but less and less, 24 inches to be considerably less, beyond three feet may not be visible in usual examination but can only be visible in either X-ray or enlarged photograph.
 Based on this, I would say that a few feet, that is the best I can offer as my opinion.
 Q  What would have been the lethal effect of this gunshot wound to the top of the head?
 A  This (indicating) Gunshot wound, not cause death instantaneously, however. Rendered person unconscious because {634} of a severe concussion. In fact, the fragments enter into the brain substance.
 As to the injury to the right jaw, it is definitively fatal because of a tearing of the large blood vessels and major portions of the person's trunk.
 Q  Which wound was received first?
 A  If injuries had occurred first on the right jaw (indicating), cutting through the large blood vessels, because the blood pressure drops after bleeding, as heart pumps blood; but it is out here so the blood does not reach to the top of the head, then I would expect the injury here (indicating) would be less hemorrhagic. What I mean, is the bleeding would be less.
 Now, if the injury happens first, prior to having injury to the left jaw, the autopsy findings is indeed consistent.
 Based on that, I would form an opinion, more likely the rifle would be first cause on forehead, and second, right jaw.
 Q  What was the condition of Special Agent Coler when he received those wounds?
 A  He was in -- having tourniquet in reclining position. Based on some of the patients take certain positions, it is my opinion Special Agent Coler more likely taking this type of position (indicating), and he was not able to move and simply he was defenseless.
 Q  What was the velocity, if you know, was it high or low velocity gunshot wounds that he received in his head?
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 A  It is my opinion that, based upon the autopsy findings, that severe destruction within the neck itself, I would form an opinion these gunshot wounds were caused by high velocity bullet like a rifle.
 Q  Do you know what kind of rifle, or what type, would you have an opinion as to that?
 A  As to the makes I do not have. I have not had opportunity of examining the bullet. It is a smaller -- the photograph shows quite a smaller entry wound, tend to give the impression that size of bullet was not a large one, like a .44 Magnum, more like a .30 or even smaller caliber.
 Q  How about the wound to the top of the head, was that a high velocity or medium or low velocity?
 A  It is my opinion the gunshot wound in the forehead also caused by high velocity wound, characterizing this explosive type of injuries, scraping the entire thickness of the skull, sending secondary missile into the brain.
 Q  Do you have an opinion as to whether or not the wound to the top of the head and to the jaw were fired by separate weapons or the same weapon?
 A  Well, based on the wound pattern, that is two wounds were found, right side of face, a metallic substance imbedded in the soft tissue of the right side of the head, it tends to give the impressions that the shooting had occurred and in the approximately fixed position, aiming to the head, and the {636} muzzle distance may have been exactly the same.
 Q  Did they appear to be the same from your examination?
 A  Yes.
 Q  Would that lead you to believe that it is likely that the two wounds were fired from the same gun, at approximately the same distance?
 A  Yes, it could well be.
 Q  I would direct your attention to the examination of Special Agent Williams. Would you -- and do you have a diagram which indicates the cause of his death?
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 A  Referring to diagram for Special Agent Williams, this diagram showing standing position looking front. There were large sized opening later found to be rifle wound into left side of upper lip.
 The picture, People Exhibit 60, page 2 and 4, depicts the photograph before careful examination was made, and page 8 and 9 were photograph taken after examination was conducted and face was carefully washed. This is photograph, Government Exhibit 60, page 8, showing a number of large tear which inn the diagram there is large tear which represent rifle wound.
 The radiating, the penetrating wound in addition similar penetrating wound, that caused by metallic substance or the fragment of a floating substance. Those are spots are found right shoulder or neck area and right shoulder through upper right arm (indicating). And in addition, again the rifle wound to the face was not caused by a deformed, clean bullet. The bullet had already penetrated intermediate target. The bullet already exploded causing spray of metallic fragments. It is my opinion, it is my opinion that muzzle was firmly contacted to the palm of the right hand slightly below the base of the finger as evidences by dark powder embedded on the surface, did not come out by washing, penetrating through the hand, striking the face.
 The inside, the back of the hand, the back of the hand {638} shows a large tear as a result of an explosive rifle wound. The position which I, the right hand contacting the muzzle of the rifle and further scientists is able to express opinion that approximate positions of the head to the gun; that Special Agent Williams was not looking forward. Since he had injury to this left, he only uses the right hand guarding whatever is coming. Then he placed this fashion (indicating). Look, if you will, left side of face has a greater injury. Special Agent Williams' head was turning to his right (indicating) and the right shoulder forward absorbing these particles.
 Naturally as bullet leaves the muzzle is accompanied with number of other substance such as unburned powder, smoke and bits of tiny metal. As bullet spins inside of a barrel where there is a tremendous speed and heat creating that surface of lead start melting. For this reason the tiny, tiny metal travels. The heavy object travels at greatest distance, that is, the bullet. The next object more likely, the shaped portion of the bullet, followed by unburned powders, then smoke, burned powders mixed with the metallic substance come from primer. The primer is the one firing pin. When the firing pins strike the metallic component from the primer, pushes and mix with the powder. These are the signs we often look for to determine muzzle distance.
 Q  What would have been the affect of this wound?
 A  This entry is instantaneously fatal.
{639}
 Q  Is it instantaneously fatal as the wound to the right side of Special Agent Coler? Was that also instantaneous and fatal? The right cheek. Excuse me.
 A  I would slightly, it is in a sense instantaneous. However, a slight gradation difference that the Special Agent Williams received injuries such as that because the head, back of head is wide open, brain torn. This I call instantaneously fatal, that is, one second after the injury, no life, is dead.
 However, the injury to the right jaw of Special Agent Coler, the injury was primarily on the large, was a nerve. Although it was totally incapacitating, the person may be able to still pump the heart, although a person would expect to be unconscious.
 Q  With regard to the condition of Special Agent Williams prior to receiving the wound in his right hand and his face, prior to receiving the lethal gunshot, what was his condition as far as his ability to move, defend himself or otherwise move with regard to his other injuries?
 A  Special Agent Williams had severe injury to left arm with injury to the left side of the body. In addition he had gunshot wound to the right foot. From the bleeding and pain I would form an opinion he would not be able to move and he too somewhat defenseless.
 Q  Not as defenseless, however, as Special Agent Coler, is that a far statement?
{640}
 A  The degree of consciousness may be the factor. Special Agent Coler more likely be either losing consciousness -- based on the blood spattering that Special Agent Coler, it is my opinion he was not able to raise his head or I would say he remain with his head in lying position.
 Q  Would Special Agent Williams have been able to hold a gun in his left hand after receiving that wound or to use it effectively?
 A  Effectively? No.
 MR. SIKMA:  Your Honor, I would like to mark the exhibits for identification for the record if I could at this time. The drawings that are here presently.
 THE COURT:  Check with the clerk as far as numbers.
 MR. SIKMA:  We will mark this as Government Exhibit 85 and it has five pages, Your Honor. Pages 1, 2 and 3 relate to Special Agent Williams and pages 4 and 5 relate to Special Agent Coler.
 Your Honor, we would offer into evidence Government's Exhibit 85.
 MR. LOWE:  I don't know if it's necessary to introduce it as an exhibit if we're willing to stipulate to all the facts on it. We have no objection to it if the government wants to do it. I just clutters the record.
 THE COURT:  Exhibit 85 is received.
 MR. SIKMA:  That's all I have at this time, Your Honor.
{641}
 CROSS-EXAMINATION
BY MR. LOWE:
 Q  Mr. Noguchi, with regard to Agent Williams' shot in the upper arm, you indicate that it was not a close in shot because there were no powder burns, no fragments and so forth. Would it be fair to say that the distance would have to be more than ten feet away from the muzzle to the arm?
 A  I would think so. Since there is no possibility to study, so the more likely even beyond five feet, I'm not too sure the powder deposits on the surface of the clothing.
 Q  But ten feet, certainly. It was no closer than ten feet. We'd be safe if we said that?
 A  Certainly.
 Q  So whoever shot Agent Williams in the upper arm was standing farther than ten feet away from him at the time, or the muzzle of his weapon was?
 A  Yes.
 Q  Now on Agent Coler's left elbow shot which I believe you indicated was an intermediate target, missile, that is, it struck an intermediate target, could this have been a ricochet type intermediate target as opposed to a penetration or are you identifying it specifically as having gone through something instead of ricocheting?
 A  Yes. I did state my opinion that bullet more likely striking not one layer of metal but more likely two layers of metal similar to the trunk lid of the car driven by Special Agent Coler.
{642}
 Q  Perhaps you are intending to say this and I was not putting it together because I was not looking at the pictures you were. Are you saying you have specific holes you say correlate to the history of this metal that ultimately ended up in his elbow? In other words, you see specific holes that you think explain what happened?
 A  Yes, I do.
 Q  Now what you did then say next is what I didn't understand or didn't quite hear. You said something about the direction and I wonder if you could just say again what you said because I either didn't hear you or I didn't understand you.
 A  The direction which I referred to was front to back and striking the elbow area and the core or fragment of bullet left inside slightly back of the right upper arm then striking right side of body (indicating).
 Q  So that the bullet came through the trunk lid raised in front of Agent Coler, as it were, came through the various layers of metal in the trunk and went in a generally downward direction into the elbow joint, and also I believe you said wounded him in the side slightly on the exit?
 A  Yes. That is my opinion.
 Q  I thought that's what you said. Not looking at the pictures I was a little confused.
 Did you say there was no exit wound for the missile which went into the right side of the jaw of Agent Coler?
{643}
 A  Yes, I did.
 Q  The bullet simply fragmented and the fragments were still in his neck and shoulder and so forth, is that correct?
 A  Yes.
 Q  Would it be fair for me to summarize the results of your investigations, as I believe we share the same opinion on this, that some person or persons standing inside of ten feet of the two agents fired three shots which ultimately took the lives of these agents, one which went through the right hand of Agent Williams on a vertically contact wound, struck him in the face and killed him instantly, two shots which struck Agent Coler in the head, one of the two which was fatal, it may not b exactly sure which one, but clearly one of the two was fatal, and then these were fired from within, as I say, a distance of about ten feet because of where the muzzles had to be in order to be compatible with the descriptions you have given the wounds, would that be a fair summary of the three fatal shots?
{644}
 A  Exception. The muzzle distance of the gunshot wound, or the forehead and the right jaw of the Special Agent Coler --
 Q  Were not contacted?
 A  Not in contact. But at close range, closer than ten feet, I have previously testified it is the best I can offer at this time, I would say it is a few feet. Not ten feet.
 Q  Right. Right. But the person would have been inside of ten feet and then depending on if the muzzle was several feet away from Agent Coler at the time the shots were fired; isn't that true?
 A  Yes. But I would like to leave the impressions, closer and several feet. Several gives you the impression of five or six feet, but these perhaps two or three feet or a few feet.
 Q  All right.
 A  That's highly technical.
 Q  That's fine, that's not inconsistent with our feelings as well.
 MR. LOWE:  In that case we have no areas of disagreement and I have no further questions.
 MR. SIKMA:  I have two further questions.
 REDIRECT EXAMINATION
BY MR. SIKMA
 Q  You indicated the shot to the right jaw had no exit wound. What was the gunshot wound or wound underneath the jaw? I'll direct your attention to the Government Exhibit 59 and the photograph on page 5. What is, how would you describe the wound {645} underneath the jaw? That is not an entrance wound. You don't call that an exit wound?
 A  No. Technically even the large hole found Special Agent Coler, this is not to refer as an exit wound. This is the tear caused by the explosive effect upon the soft tissue as a bullet strikes a right jaw. Then the whole tissue swells up and that is a matter of a one thousand of a second matters however. Then the front neck area exploded.
 One of the reason that I do not believe that this is exit wound is the fact that if this was the entrance wound, this was to be exit wound. Then something have to come out, then strikes left side of shoulder. So it is my opinion it is only tears as a result of an explosive rifle wound.
 Q  You indicated, and I don't believe it was clear which bullet hole you were referring to in the vehicle which caused the wound to Special Agent Coler's right --
 MR. LOWE:  Your Honor, I believe that misstates the testimony. He did not say that the bullet wound that did cause the entry, but would be consistent or might have been.
 MR. SIKMA:  Very well.
 Q  (By Mr. Sikma) Would you indicate by looking at Government exhibits there which one would you be able to point it out on?
 A  Government Exhibit 54, page 9, depicts the car as you are looking at trunk opened. May I be permitted to mark circle in the area of --
{646}
 Q  Yes. With the Court's permission.
 THE COURT:  Any objection.
 MR. LOWE:  I have no objection, Your Honor.
 THE COURT:  Very well. You may mark it.
 THE WITNESS:  Thank you, Your Honor.
 A  I will circle on the cellophane cover about half inch in diameter, circling around a bullet hole found in the right lower corner of the trunk as it was opened.
 Q  (By Mr. Sikma) Would you show that to the jury and point it out so they can see it.
 A  I marked the circle right lower corner of the trunk as it opened.
 Q  Would you point out to the point where the blood is shown on the trunk from that photograph there which you are referring to.
 A  I am going to use a square to mark this area covering the, what appears to be a little blood on the surface of the bumper.
 Q  Just one further question.
 With regard to the wounds that SA Williams received is it a fair statement of your opinion that all three of those wounds could have been fatal if they were not treated? The wound to the right arm or any one of the three would have been fatal if not treated?
 A  It is true. Even though it is the injury to the right foot, it could be infected and without proper medical care --
{647}
 MR. LOWE:  We'll stipulate to that, Your Honor. He's not stating anything but what we all know.
 Q  (By Mr. Sikma) With regard to the wound in the right arm. Was that also the type of wound that you would consider to be fatal if it did not receive reasonably early medical treatment?
 A  That wound, yes, I do.
 Q  And what is the reason for that?
 A  According to autopsy report large blood vessels had been torn up and even tourniquet, I'm not certain you'll be able to sustain adequate blood pressure for a long time.
 MR. SIKMA:  I have no further questions.
 THE COURT:  You may step down.
 MR. SIKMA:  Your Honor, at this time I would like the jury to have the opportunity to view the photographs in Government Exhibits 72A, 24A and 73, as well as Government Exhibits, in Government Exhibit 59 and 60 which have, to this point the jury has not had an opportunity to see these photographs.
 THE COURT:  Very well.
 MR. LOWE:  May we approach the bench, Your Honor?
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 MR. HULTMAN:  May this witness be dismissed?
 MR. LOWE:  As far as I am concerned I am fine. I was {648} just going to say that this is going to take some time and could we recess, have an informality recess or something?
 THE COURT:  My plan is to recess after they have viewed the pictures and so forth, and I do not allow any interrogation while they are viewing the pictures. So far as the Court is concerned counsel may --
 MR. LOWE:  It's going to take them a good half hour to look at those things, so we'll just run around. We'll try and keep in touch.
 THE COURT:  I won't reconvene. I'll recess as soon as they're through.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 MR. LOWE:  Your Honor, may I approach the bench?
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 MR. LOWE:  Mr. Robideau has been brought to the jail pursuant to the habeas corpus filing from Ft. Leavenworth. The arrangement that the sheriff told me would be made would be that Mr. Taikeff and I were the only ones who could see him and we could only see him during regular business hours and on weekdays. And it's rather impractical because we're in court. And I didn't know what the source of that restraint was or restriction. And to the extent that you have any control over it I was going {649} to ask if you would authorize us to see him for some reasonable period like during 7:00 to 9:00 in the evenings so we can interview him. Because they would not let me see him on weekends either, so I mean that just doesn't give us any time to see him at all.
 THE COURT:  And how much time did you say that you --
 MR. LOWE:  Well, I would say that if it was just a reasonable time during the evenings so it's a time that's convenient for the jail. If it was just an hour each evening at the same hour, like from 7:00 to 8:00 or something like that, that we were authorized to visit him, that would be more than enough I'm sure. I can't say a particular day because depending on what time we are here in court we may have to go over that evening to check with him.
 But it's clear that we can't get over during the day, and it's also clear that we're not allowed on the weekends or on the evenings. So just any reasonable period of time would be fine.
 THE COURT:  You are really asking for an open-end arrangement?
 MR. LOWE:  Just access, that's all. Right now the hours are from 9:00 to 5:00, and all I'm asking is that it either be, let's say, something like 7:00 to 9:00 or 5:00 to 7:00 or 7:00 to 8:00, just so it's some period when we're not in court. I'm really not specifying what period. Anything you feel {650} is reasonable, is fine.
 THE COURT:  I'll talk to the marshal about it.
 MR. LOWE:  That would be fine. Thank you, Judge.
 The same would be true of Jimmy Eagle, I presume. That wherever he is they have a similar restraint. But whatever you arrange for either one of them would be fine.
 THE COURT:  Fine.
 MR. LOWE:  Thank you, Judge.
{651}
 THE COURT:  The Court is in recess until 3:40.
 (Recess taken.)
 (Whereupon, the following proceedings were had in the courtroom, out of the presence and hearing of the jury, the Defendant being present in person:)
 THE COURT:  Mr. Lowe, you may approach the bench on that last ex parte matter.
 (Whereupon, the following proceedings were had at the bench:)
 THE COURT:  I talked to Mr. Warren, and he said that reasonable time would be made available for you and Mr. Taikeff to visit with Robideau and to visit with Eagle except that for security reasons they are keeping Robideau and Eagle in different institutions.
 MR. LOWE:  I understand that.
 THE COURT:  And Eagle at the present time, I think, is in Grand Forks. He said that a reasonable time would be worked out.
 MR. LOWE:  Work it out with the Sheriff or Warren?
 THE COURT:  Work it out with Mr. Warren. I am sure the sheriff will follow his instructions.
 MR. LOWE:  I don't think it would be very frequent we would need to see them. The morning would be preferable. It is impossible during the day. We will work it out.
 (Whereupon, the following proceedings were had in the {652} courtroom:)
 THE COURT:  The jury may be brought in.
 (Whereupon, at 3:43 o'clock, p.m., the jury returned to the courtroom; and the following further proceedings were had in the presence and hearing of the jury:)