THE COURT: You may proceed.
MR. HULTMAN: May it please the Court.
Q (By Mr. Hultman) Mike, I want to show you what has been
marked as Government's Exhibit 12, and ask you whether or not you recognize
the vehicle that's portrayed there in that photograph?
A Yes.
Q And would you tell the jury what it is?
A It is a van.
Q And what color is the van?
A Red and white.
Q And is that the same van that you have been talking about
in your testimony?
A Yes.
Q And now I am going to show you what has been marked as
Government's Exhibit 13-B, and ask you whether or not you have ever seen
that vehicle before?
{797}
A Yes.
Q And would you tell us where it was that you saw it the
last time?
A Down to the camp.
Q And what kind of a vehicle is that?
A It is a Ford.
Q And is that the -- excuse me?
A Ford Galaxy.
Q And is that the one you have been testifying to?
A Yes.
Q And are these two photos I have given you and the two
vehicles represented there, the two vehicles that you indicated were down
in the tent city area?
A Yes.
Q All right. Now, I am going to show you some photographs
that have been marked as Government's Exhibit 55, and two pages of photographs,
Page 36 -- first of all, these have been introduced into evidence here,
and I want you to look at Page 36. Have you ever seen this before, have
you ever seen these photos or this album before?
A No.
Q So you are seeing them for the first time then?
A Yes.
Q Would you tell me if you recognize what the object is,
the major object that's on Page 36?
{798}
A The van.
Q And is that the same van to which you have been testifying?
A Yes.
Q Now, I am going to show you what has been marked as Government's
Exhibit -- Page 37 of Government's Exhibit 55, and there are a number of
objects that are portrayed there; and first of all, I am going to ask you,
have you ever seen the photographs before this very moment?
A No.
Q So you are seeing them for the first time?
A Yes.
Q I want you to look at them closely, and then I am going
to ask you whether or not there is anything in those photos that you have
seen before?
A Yes.
Q All right. Would you tell us, starting with any one photograph,
what it is you recognize?
A This stuff I loaded up in the van.
Q All right. So that the things that are portrayed in each
of these photographs are the things that you were loading up in the van
you testified to?
A Yes.
Q All right. Would you tell me in looking at Photograph
E, what it is that you loaded up, do you remember what that is?
A Radio.
{799}
Q All right, and if you look at Photograph F, and tell
the jury what that is?
A Tire.
Q And do you remember anything about the tire?
A The van there.
Q Do you know where it came from?
A No.
Q Do you remember anything, about anything on the tire?
A No.
Q All right. What are the objects that are portrayed in
Photograph D, if you know.
A The antenna.
Q All right. What were those antennas used for, if you
know?
A The radio.
Q And how tall are those antennas when you put them together.
A I don't know.
Q You never put them together?
A No.
Q All right. Can you tell me what the objects are in Photograph
A?
A No.
Q You don't recognize them as to what they are, is that
right?
A Unh-unh.
Q All right. What about in Photograph B? This is Photograph
{800} B here (indicating).
Q You don't recognize anything there. What about on Photograph
C?
A No.
Q Now, would you explain to the jury where you went after
you left the Tent City, where did you go upon leaving the tent area?
A Followed the river out.
Q All right, and would you indicate on Government's Exhibit
71 there with the pointer approximately where the river is and the direction
that you went; would you take the pointer and point out for the jury?
A (Indicating) Be down this way.
Q All right, and did you generally follow the river itself?
A Yes.
Q Now, who was with you when you followed the river?
A Everybody.
Q All of those that you have mentioned before, is that
right?
A Yes.
Q Was Jimmy Zimmerman with you?
A No.
Q All right. What happened to Jimmy Zimmerman?
A He stayed at the tent.
Q All right, and where the last time you saw Jimmy Zimmerman
there, where was he?
{801}
A In the tent.
Q Now, when you left, would you tell us what anybody took
out with them, do you remember?
A No.
Q Did anybody take anything with them?
A No ? I don't remember.
Q Did you take anything with you?
A Yes.
Q And what was it that you took with you?
A A Ruger .44.
Q A .44 Ruger?
A Yes.
Q All right. I want to show you what has been marked as
Government's Exhibit 33-A, and ask you whether or not you recognize this
particular weapon?
A Yes.
Q And how is it that you recognize it?
A The crack.
Q And would you point out to the jury the crack to which
you are testifying?
A (Indicating).
Q All right. Where was it that you saw this weapon the
first time, as you best recall?
A Down at the camp.
Q And where was it that you saw it -- did you see it on
the {802} 26th of June, the day we have been talking about?
A Yes.
Q Where was it that you first saw it on the 26th of June?
A Stuntz had it.
Q And where -- was that Joe Stuntz?
A Yes.
Q And where was Joe Stuntz when you saw him with this particular
weapon?
A Upon the hill.
Q And was this during the time that you were up on the
hill doing the firing?
A Yes.
Q All right, and what, if anything, happened to this weapon
during the afternoon that you know of your own knowledge. if anything?
A I don't know. It didn't work so he took it back down
to the camp.
Q All right, and did he come back with another weapon then
of some kind?
A Yes.
Q What kind of a weapon, if you know, did he come back
with after taking this one back down to the camp?
A 30, 30.
Q All right. When was the last time that you -- did
you see that 30-30 later in the afternoon?
{803}
A No.
Q All right. Did you see it when all of you that you referred
to went out along the river?
A No.
Q Anybody have it with them at that time?
A No.
Q All right, but you took this particular weapon out with
you when you left?
A Yes.
Q All right. Is there any question in your mind about that
at all?
A No.
Q Now, did Wish Draper carry anything out with him?
A I don't know.
Q Do you remember anybody carrying --
MR. LOWE: (Interrupting) I did not hear the response, whether
it was "no" or "I don't know". He was very inaudible with his hand in front
of his mouth.
THE COURT: Repeat your answer.
THE WITNESS: No.
Q (By Mr. Hultman) All right. Do you recall Robideau, Bob
Robideau carrying any weapons out?
A I can't remember.
Q All right. Do you remember any other weapons at all --
A (Interrupting) No.
{804}
Q (Continuing) -- being carried out?
A No.
Q Do you remember any pistols of any kind being carried
out?
A No.
MR. LOWE: Your Honor, he just said he didn't remember any
weapons being carried out. That's the second time he asked him. I object
to questions that have been answered already.
THE COURT: Sustained.
Q (By Mr. Hultman) Did you see any weapons at a later time?
A Yes.
Q All right. Would you tell me where it was you saw some
weapons?
A Going up the hill.
Q All right, and what weapons did you see at that time?
A A.R., and I don't know -- I can't remember the others.
Q All right, who had the A.R.?
A Peltier.
Q And was that the same weapon that you had -- was it a
similar type of weapon that you had seen with him earlier in the day?
A Yes.
Q All right, and was it similar to the weapon that you
saw that he had at the time he was down at the car where the agents were?
{805}
A Yes.
Q All right. Do you remember any other weapons that anybody
had in going up the hill?
A Robideau had a shotgun and a pump gun.
Q All right. A shotgun and a pump gun.
Had you seen the shotgun or the pump gun before?
A No.
Q I am going to show you what has been marked as Government's
Exhibit 36-A, and I just simply want to ask you whether or not the shotgun
that you saw in any way resembled this shotgun that I have in front of
me now?
A Yes.
Q And in what way, as you recall, does it resemble the
shotgun?
A Padding.
Q First the pad, is that right?
A Yes.
Q Is there anything else?
A No.
Q Is it the general size and shape of the shotgun that
you were referring to now?
A Yes.
Q But you didn't know whether or not this is the particular
shotgun, is that right?
A Yes.
{806}
Q All right. Now, I am going to show you what has been
marked as Government's Exhibit No. 30-AA, and ask you whether or not you
have seen a weapon similar to this or one that looks of this general description?
A Yes.
Q And where was it that you saw one?
A Robideau was carrying it.
Q And is that the time that you were referring to now?
A Yes.
Q Had you seen that weapon or the shotgun at any time prior
to when you were going up the hill?
A No.
Q All right. You had never seen it in the camp at any time?
A No.
Q Or anybody with it?
A No.
Q Now, would you tell us, Mike, what happened as you went
down the stream, tell us the route that you left by after you left Tent
City and the tent area and went down the stream, just in your own words?
A Well, across the stream and followed it part of the way,
and we left and walked towards the road, the dirt road. Crawled under a
tunnel, went through a tunnel.
{807}
Q All right. Was there a road that went over the tunnel?
A Yes.
Q That's how you passed the road by crawling under a tunnel;
is that right?
A Yes.
Q Now, where was that tunnel, if we would look for a moment
at Government's Exhibit 71, which is the Jumping Bull property and tent
city to the right, would you show the jury in what general direction it
is that the tunnel is located. You say you went down the stream; is that
correct?
A Yes.
Q And would you just, if you can't see it on the map, just
show us approximately what direction it would be where that tunnel was
located.
A Here in the corner way up here (indicating).
Q Now, does that tunnel go under Highway 18, or does it
go under another road?
A Under another road.
Q All right. Now, what if anything happened after you crossed
through the tunnel?
A We went up the hill.
Q And what if anything happened as you were going up the
hill?
A I guess somebody spotted us and starting shooting at
us.
Q And what if anything happened next?
{808}
A Returned the fire.
Q And did you do any firing at that time with the 44 Ruger?
A Yes.
Q All right. And what happened next?
A We just ran up the hill.
Q Did others fire, too, along with you?
A I don't know.
Q All right. So you ran up the hill?
A Yes.
Q And what happened next?
A We stayed up on the hill.
Q And were all of the people in a group during this period
of time that you are referring to?
A No.
Q All right. Tell us who was with you and who wasn't specifically
with you.
A Well, I don't remember.
Q All right. Did you all go the same general direction?
A Yes.
Q All right. But not all together at one time, is that
what you are saying?
A Yes.
Q Or you tell me what it is.
A Well, some of us went in and some of us went up this
way (indicating).
{809}
Q All right. But then did you end up together at a little
later time?
A Yes.
Q All right. Now, tell us what you did next after going
up the hill and all of you getting back together again.
A Well, we just hid under the trees and stayed there for
a while.
Q And where did you go next?
A We just got up and kept on walking. Stayed under the
tree line.
Q All right. And where did you go to that night?
A We went out, went out and went across Highway 18 up into
the hills.
Q All right. And what if anything did you do that night?
A Stayed out, stayed out in the night time.
Q All right. And what did you do the next day?
A We just slept under the trees and hid.
Q And where did you spend that night?
A Outside again.
Q Did you at any time go to anybody's house or cabin or
any property that, during the time that you were up in the hills?
A That was the first night.
Q All right. And do you recall, tell the jury what it is
you remember about that night.
{810}
A We met Ted Lame and he took us to this place behind June
Little's place, father's place, up into the hills.
Q And did all of you go there?
A Yes.
Q All right. And you stayed there that evening; is that
right?
A Yes.
Q Who was there? You said Ted Lame picked you up. Who was
at the house that you went to? Was there anybody there?
A No. Just an old man.
Q Just an old man?
A Yes.
Q Do you remember anything about the old man?
A He was old.
Q And he was alone; is that right?
A Yes.
Q Did you know what his name was at all?
A No.
Q Did anybody else there know or seem to know who the old
man was?
A No.
Q All right. Now did you stay any other places during the
time that you were up in the hills?
A No.
Q All right. About how long did you remain up in the hills?
{811}
A About four days I think.
Q All right. Did you go to any other house during the four
days?
A Yes.
Q And do you know whose house that was?
A No.
Q Would you describe the people that were there.
A A lady and three girls.
Q And were there any men there at all?
A No.
Q And how long did you stay there?
A One night.
Q And where did you then go from there? Where did you go
from the house with the lady and the three girls?
A I don't remember.
Q All right. Did you ultimately, after the four days, go
somewhere else other than up in the hills?
A Yes.
Q And where was it that you went?
A Bear Runner's.
Q And how did you get to Bear Runner's?
A I don't know. Just some car picked us up and took us
over there.
Q All right. Now, do you know was Bear Runner there?
A Who?
{812}
Q When you went to Bear Runner's house who was there at
Bear Runner's house?
A I think it was an old man.
Q Pardon?
A The dad.
Q Do you know what his name was at all?
A No.
Q Had you ever seen him before?
A No.
Q And who went with you in the car to go to Bear Runner's?
Who was with you when you went to Bear Runner's in a car?
A It was those younger guys and the girls.
Q All right. And when you refer to the "younger guys and
the girls" would you tell the jury who those people are that you are referring
to.
A Norman Charles and Norman Brown, Wish and me.
Q And then which of the girls? Who were the girls?
A Jeannie, Mela, Lynn.
Q All right. Now I take it then that Mr. Peltier did not
go with you?
A No.
Q When did he leave?
A I don't know.
Q All right. Was he there when you left, or do you recall?
A Yeah, he was there.
{813}
Q All right. Now, I want to take you back just for a moment
to the time when you were on the hill shooting. About how long a period
of time were you on the hill itself shooting?
A I don't know. I didn't have no time.
Q You didn't keep any times as such; is that right?
A Yes.
Q Could you in any way give an approximation just in general
terms of about how long at the most --
MR. LOWE: Your Honor, the witness said he didn't know,
he didn't have any watch. I object to his answer already.
MR. HULTMAN: If it please Your Honor --
THE COURT: He may answer as to whether he can approximate
the time.
Q (By Mr. Hultman) I'm referring, so that the witness understands
the question, the total amount of time, not a specific time, but a total
amount of time approximately if you can give me an estimate on how long
you were up on top of the hill in the area of the green house and the white
house and the log house when firing was going on.
A About twenty minutes.
Q All right. This is about the total maximum time that
you were up on the hill?
A Yes.
MR. LOWE: Objection, Your Honor. He's putting words in
the witness's mouth. Again I ask the Court to instruct {814} counsel not
to lead the witness in this manner.
THE COURT: The objection is sustained. The last question
and answer will be stricken.
Q (By Mr. Hultman) Where did you go after the period of
time that you, by the previous question and response, gave to me and to
the jury, where did you go from there? From the top of the hill where did
you then go?
A Back to camp.
Q And approximately how long a total period of time were
you down in the camp area?
A About an hour.
Q And did you, during this period of time you referred
to, the total time that you were on the hill, did you at any time go back
and forth between the hill and the tent area?
A I don't remember.
Q All right. Mr. Anderson, I'm going to show you what has
been marked as Defendant's Exhibit 62C.
MR. LOWE: May we approach, Your Honor?
THE COURT: You may.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE: I object to the introduction of any inference
concerning certain incidents at which an automobile exploded.
THE COURT: Excuse me. State that again.
{815}
MR. LOWE: We object to the introduction of evidence, particularly
pictures concerning an incident in which an automobile exploded strewing
the weapons and grenades and other items on the highway.
Mike Anderson was in that car, but it's highly prejudicial information.
It's not relevant that Leonard Peltier was not there. They're willing to
stipulate, and we've already indicated that we will stipulate chain of
custody of weapons. There's no contest on that. In fact, that's one stipulation
that the Government has accepted.
We believe that the information is relevant. Even if it were
relevant the probative value is far outweighed by the prejudice, and we
feel for these reasons that this information is not information that should
go into evidence in this trial.
MR. HULTMAN: Are you finished yet?
MR. LOWE: I think basically.
MR. HULTMAN: Your Honor, the reason for the production
of these exhibits and so the Court might know, is that we believe, it's
extremely relevant, and it is of a probative value, specific weapons that
were carried and handled. In fact, the last two, as an illustration, one
of which, Your Honor, is ultimately traced to this event that is transpiring
here, and in the postion [Transcriber's note: "possession" intended?]
again of people who he has testified to just a few moments ago, and what
weapons they had when they left.
{816}
We feel its probative value is evident for a number of reasons.
First of all, because it clearly ties into the weapons. One in particular,
that's a weapon the agent himself, one of the two who are deceased, and
whose weapon was taken at the scene. It also is of --
THE COURT: Excuse me. You say that the evidence will show
that one of the agents' weapons was recovered?
MR. HULTMAN: Isn't that correct?
MR. SIKMA: That's correct.
MR. LOWE: That's already been stipulated to.
MR. HULTMAN: Okay. And also another of the weapons that
was fired in this particular area that particular day at Coler's car is
one of the weapons that was in. Plus the individuals who are here are likewise,
not in every instance, but in more than one the same people to which has
been testified here.
THE COURT: Are you going to specifically tie up one of
the weapons that was fired at the --
MR. HULTMAN: That is correct, that is correct, Your Honor.
MR. SIKMA: Two of them.
THE COURT: Two of them?
MR. SIKMA: The agent's gun, Special Agent Coler's gun.
They've stipulated that it's his gun and one of the guns that was fired
in the area of the vehicle was in this car as recovered {817} and tested
by ballistics to show that that gun was fired at the scene of the crime
right near the agents' cars.
THE COURT And what individuals are associated with that car?
MR. SIKMA: Robideau, this individual, this witness and
one other individual was with them I believe.
MR. HULTMAN: At least two. I can't remember for certain,
Your Honor. I wouldn't want to put more than two on the record. But two
of the people that this defendant has testified, including himself.
THE COURT: And what is your objection to that?
MR. LOWE: Well, our objection is first of all that we have
entered into a stipulation already on chain of custody. There is no dispute.
The can state that those weapons were found in Wichita; but knowing all
of the details of the problem of the other objects found, they are not
relevant, particularly where Mr. Peltier himself had nothing to do with
this. He was not present.
They're obviously trying to inflame the jury with registration
of explosives, of grenades, of a lot of irrelevant weapons that were present
there.
We have no objection to stipulating. As a matter of fact they've
accepted our stipulation on chain of custody of these weapons. I don't
think there's any basis for them putting this in except to inflame and
prejudice the jury. There's {818} simple no ther basis for that.
We'll stipulate that the weapon was there and they know we've,
we'll stipulate to chain of custody. We'll stipulate to the identity of
the people if they want, but Mr. Peltier was not present.
THE COURT: You've made you record. The Court's ruling on
this will be the same on the other pictorial evidence, that it is relevant
and the jury is entitled to know the facts, and the objection is overruled.
(Whereupon, the following proceedings were had in the courtroom
in the hearing and preence of the jury:
Q (By Mr. Hultman) Mr. Anderson, I am going to show you
what has been marked as Government's Exhibit 62. They are some photographs
and I want you to just take a moment and look. First of all, I want to
ask you whether or not you've ever seen the photographs before this very
moment?
A No.
Q All right. Now, I want you to look at each of the photographs,
and without responding, first I want you to look at them before saying
anything.
Now, I want to ask you first whether or not you have ever seen
the scenes that are portrayed there. Do you recognize anything?
{819}
A No.
Q You don't recognize anything there at all?
A Yes, I do.
Q Would you tell the jury what it is you recognize.
A Station wagon.
Q How is it that you recognize the sation wagon? Are you
now referring to the station wagon that was portrayed on page 2 of this
exhibit?
A Yes.
Q That's what we're now looking at.
Tell us how it is that you recognize this station wagon?
A All burned up.
Q And did you see it in this general condition?
A Yes.
Q And would you tell us where it was that you saw it and
what was the occasion?
A Oklahoma.
Q About when was this?
A It was somewhere in Kansas.
Q Somewhere in Kansas?
A Yes.
Q Would you tell the jury a few words why it is you recognized
the station wagon?
A I don't know, because I noticed it.
Q Were you in the station wagon?
{820}
A Yes.
Q Tell us where was it that you left from in this station
wagon?
A The back seat.
Q And what area or what town did you leave in this station
wagon?
A In South Dakota.
Q And about when would that have been?
A I don't remember.
Q Was it sometime after the events that we have been talking
about here on the 26th of June of 1975?
A Yes.
Q Who was with you when you left in the station wagon?
A Bob Robideau, Bernie and Darlene, Norman Charles, Keith,
Jeannie and I.
Q Now of the men that you have been referring to in that
group, which of those individuals are the same people that you have been
referring to in testimony here today back on the 26th of June, would you
tell me which ones of those people?
A Bob and Norman.
Q And it's Bob who?
A Robideau.
Q And Norman, do you know his last name?
A Charles.
Q Norman Charles. Anybody else?
{821}
A And myself.
Q And yourself.
Now tell the jury what happened here.
A I don't know. The car just started smoking and we stopped
and started blowing up.
Q Who loaded the car to go down there?
Where were you going, by the way?
A I don't know.
Q Who loaded the car?
A I don't know. I did I guess.
Q Pardon?
A I did I guess.
Q I'm going to show you now what has been marked as page
10 of Government's Exhibit 62 and ask you whether or not you recognize
the objects that are there?
A No.
Q You don't recognize them at all?
A (Witness nods negatively.)
Q Let me ask you, what was in the car that day, what was
loaded in the car that day?
A Dynamite and firearms.
Q And would you describe what kind of firearms?
A Rifles, pistols and, about all.
Q Did they resemble the firearms that are represented on
pages 10 and 11 of this exhibit?
{822}
A Yes.
Q Do you remember anyone of these particular firearms with
relationship to the events back on the 26th of June or the 27th, 8th and
9th, the four days that you left from the time you were here and the events
that you have been testifying to and that you left, do you recognize any
of these weapons in any way, to any of those weapons?
A No.
Q I'm going to show you what you've looked at a little
earlier as Government's Exhibit 30A and ask you whether or not if the weapons
that were in the station wagon that we've been discussing, if there was
a weapon of this general type and description?
A Yes.
Q Now, do you recall where you first saw it with relationship
to the station wagon?
A Down in the camp.
Q Do you remember who had the weapon that looked like this
particular one?
A Robideau.
Q And is that the same weapon that you have been testifying
to when you said that Mr. Robideau had two weapons when he was leaving?
A Yes.
Q And the other one resembled a weapon that he left with
that {823} day, the one that I have on the counter, is that correct?
A I don't know.
Q You don't know?
A No.
Q You didn't see any weapon of this kind in the station
wagon, is that what you're saying?
A No.
MR. LOWE: When you say "this kind," which one? You're holding
one and pointing to one.
MR. HULTMAN: I'm sorry. Let the record show I'm asking
you about this weapon here (indicating).
Q (By Mr. Hultman) Did you see any weapon of this kind
in the station wagon that day?
A No.
THE COURT: I would suggest, Counsel, when you handle the
weapons would you try to keep the barrel pointed towards the overhead.
MR. HULTMAN: Let the record show, so the Court will know
this and the jury, all of these weapons have been made inoperable by the
marshal's service and are in a condition they cannot be fired. I did not
mention that in the Court's presence before. I will try to heed the admonition
of the Court also.
Q (By Mr. Hultman) I'm going to show you again what you
previously looked at and it's been identified as Governnent's {824} Exhibit
34AA and ask you whether or not there was a weapon of this general type
and description in the station wagon on the occasion that you're talking
about now?
A Yes.
Q You remember a weapon.
You don't know what the speciflc weapon was, is that correct?
A Yes.
Q But you know there was a weapon like this?
A Yes.
Q Where were you when the materials were loaded in the
station wagon that we are discussing at this time as portrayd in Government's
Exhibit 62, where were you when the station wagon was loaded? What town
or area or what location were you when you loaded the station wagon?
A I don't remember.
Q Do you remember what state you were in when the station
wagon was loaded?
A South Dakota.
Q Do you remember a general location of where you were?
A No.
Q Mike, how much education have you had?
A Eight years.
Q Have you ever prior to being in this courtroom today
testified under oath?
{825}
A No.
Q This is the first time you've ever testified under oath?
A Yes.
Q And have you told us the truth here as you best remember?
A Yes.
MR. HULTMAN: I have no further questions.
MR. LOWE: May we approach the bench?
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE: Your Honor, particularly in view of the one lawyer,
with regard to witnesses, I need a little time to get set up here. I want
to set up the screen and a projector. I'd like to go over the notes of
what he said and in the absence of having been able to interview him it
makes it particularly difficult to cross-examine. I wonder whether Your
Honor would be willing to have an early lunch recess, same amount of time
but move it up so we can have the lunch hour to prepare for cross-examination?
This is obviously a crucial witness.
THE COURT: How would it be if I recess until 1:15 which
would give us --
MR. LOWE: Fine.
THE COURT: Any objection to that?
MR. HULTMAN: No, Your Honor. I understand the reasoning
and I know the Court would grant a similar request {826} with no objection
on the part of the defense.
THE COURT: Very well.
(Whereupon, the following proceedings were had in the courtroom
in the hearing and presence of the jury:)
THE COURT: We're going to recess a little early this noon.
The noon recess will not be much longer than we usually have. The court
will recess at this time and we will reconvene then at 1:15 rather than
the usual reconvening time of 1:30.
The court is in recess.
(Recess taken.)
