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

AGENT FREDRICK COWARD
ALSO SEE : CROSS EXAM VOL 7
AS DEFENDANT WITNESS VOL 20
CROSS REFERENCE MARVIN STOLDT 17D


MR. SIKMA:  The Plaintiff calls Mr. Fred Coward.
 THE CLERK:  What was the last name?
 MR. SIKMA:  (Spelling) C-o-w-a-r-d.
 FREDERICK COWARD, JR.,
being first duly sworn, testified as follows:
 DIRECT EXAMINATION
By MR. SIKMA:
 Q  Would you please state your name again to the jury?
 A  Frederick Coward, Jr.
 Q  And Mr. Coward, what is your occupation?
 A  Special Agent with the Federal Bureau of Investigation.
 Q  And where are you assigned duty in that regard?
 A  Presently?
 Q  Yes.
 A  Phoenix, Arizona.
 Q  What was your place of assignment in June of 1975?
 A  Rapid City, South Dakota.
 Q  And do you recall the date of the 26th of June, 1975?
 A  Yes, sir.
{1160}
 Q  Do you recall where you were at about 12:30 on that date, 12:30 noon?
 A  At about 12:30, on that particular day, that was on my way to Oglala, South Dakota.
 Q  And how did it come about that you were on your way to Oglala, South Dakota?
 A  Well, just shortly after 12:00, that noon, I was return to the office and I was informed that there was a shooting taking place near Oglala, South Dakota.
 Q  And did you know where the shooting was taking place as far as Oglala, South Dakota, was concerned?
 A  I subsequently learned that it was in an area identified as the Jumping Bull community.
 Q  Approximately what time did you leave for Oglala, South Dakota?
 A  At was approximately 12:20 on that particular day.
 Q  And did you go with anyone, or did you drive there by yourself?
 A  I went alone.
 Q  And approximately how long did it take to get there?
 A  Tt took me approximately one hour.
 Q  I will ask you to turn around and look at what has been marked as Government Exhibit 71. Do you recognize what is on Government Exhibit 71?
 A  Do I recognize it?
{1162}
 Q  Yes. Do you recognize what that is?
 A  Well, it is an area which is located on the Pine Ridge Indian Reservation, and it is what I later learned to be the Jumping Bull community.
 Q  Now, is this the area to which you went on the 26th of June, 1975?
 A  I proceeded to that location, yes.
 Q  Now, you indicated that you arrived there approximately an hour later, is that correct?
 A  That's correct, sir.
 Q  And can you see a point on that map which approximates the position to which you went?
 A  Yes, sir.
 Q  Would you use the pointer and point it out to the jury?
 A  (Indicating).
 MR. SIKMA:  May the record reflect that on the far right-hand -- excuse me, the left-hand side of the map is an intersection on Highway 18 to which Special Agent Coward is pointing on Government Exhibit 71.
 Q  (By Mr. Sikma) Did you at that time -- were you attempting to meet with anyone in particular at the time that you arrived at that point?
 A  Yes, sir.
 Q  And who was that?
 A  Well, I was trying to locate Special Agent Gary Adams.
{1162}
 Q  And had you worked with Special Agent Gary Adams in the past?
 A  Yes, sir.
 Q  And where was he assigned?
 A  Rapid City, South Dakota.
 Q  Did you discover or determine at that time where Special Agent Adams was at that particular time?
 A  Well, I never did see him. I saw an area which I pointed out, and was advised that he was a few hundred yards over a hill.
 Q  O.k., and would you point out at that time approximately where it was you believed him to be?
 A  (Indicating) Somewhere in that area.
 MR. SIKMA:  May the record reflect that the witness pointed to Government Exhibit 71, to the right of the intersection identified earlier to be a bend in that intersection about a foot to the right of the intersection.
 Q  (By Mr. Sikma) In your radio communications with -- or in your communications with Gary Adams, did you discuss where you would go or what you would do after you arrived at the scene?
 A  It was when I arrived at the scene, I was advised by Gary Adams to take a group of men and go around the other side of the dam.
 Q  O.k. In which direction would that have been from Government. Exhibit 71?
{1163}
 A  Should I point it out?
 Q  Yes.
 A  It would have been over here off the map (indicating), just basically in this area.
 MR. SIKMA:  Let the record reflect that this is an area which is in the middle of the -- in the center of the map at the bottom which is marked "wooded area", that the area pointed to by the witness was below the tree line or below the area designated as a "wooded area" in the center, lower center of the map.
 Q  (By Mr. Sikma) Would you state if there was anything, any particular thing at that point where you went as you designated earlier, just on the lower side of the map there?
 A  Well, there was a road that connects the main highway which is Highway 18 that goes around behind the dam. It is a dirt and gravel road.
 Q  O.k. Where does the road start that loops around the area of the dam?
{1164}
 A  It starts just north of Oglala, South Dakota.
 Q  And?
 A  And continues on around the lake and goes on past the pumkin seed and the Rooks residence, across the bridge and enters back down onto Highway 18.
 Q  Now would the pumpkin and Rooks residences, if the map was large enough, be lower or down below the area indicated by the map?
 A  Yes. It would be. It would be longer. It can't be depicted because, you know, the board is not long enough.
 Q  Now you indicated, I believe, that the area to which you went was actually right on the bottom of the map, almost on the map, is that correct?
 A  Well, it wouldn't be right on the bottom, it would be a little further.
 Q  Slightly more, slightly below that?
 A  Yes.
 Q  Approximately how far in inches?
 A  Two or three inches maybe, roughly.
 Q  Would that be south of the corral there, or, excuse me, down from the corral? Southwest of the corral?
 A  I would call it west.
 Q  What was there at that point which you went? Were there buildings or what did you do when you went in that direction?
{1165}
 A  Well, there was a small home, the pumpkin seed family lived there.
 Q  Were you familiar with the pumpkin seed family?
 A  Well, I had visited that home years ago, couple years before that.
 Q  So you were familiar with that residence?
 A  Yes, I was.
 Q  From that residence I asked you to look at the map and tell me what area of the map, if any, you could see from that residence.
 A  Well, I could see, I could see Gary Adams' car over here (indicating). I could see the highway, I could see these residences here, I could see these residences here (indicating). I was up on a little plateau in the Pumnkin Seed house and I could see right across. Because of the plateau I had a beautiful advantage, sight advantage of seeing this particular residence and these buildings here (indicating).
 Q  Now you see an area on the map which is, there is an arrow drawn to it and it says, "Coler's Car." Could you see that area?
 A  No I could not.
 Q  What time of the day was it approximately that you arrived at the Pumpkin Seed residence?
 A  Well, it was getting towards 2:00, you know, approximately.
{1166}
 Q  And did you have anyone with you or were you with someone?
 A  There were approximately seven of us there.
 Q  And what did you do at that time?
 A  Well, the decision was made because of the sporadic shooting to occupy the dwelling, if people were in there to bring them to safety which that was done. The main concern was to occupy, to set up a perimeter, to secure any movement and maintain a position and get in contact with Gary Adams again to see what exactly was happening.
 Q  Did you get in contact with Gary Adams again?
 A  Yes. Our team did.
 Q  Now while you were there, did you see any people from, did you, first of all, during that time did you hear any shooting?
 A  Yes, sir, I did.
 Q  And could you tell where the shooting was coming from?
 A  I eventually determined that.
 Q  And where was the shooting coming from?
 A  It was coming from a white stucco type building which I later found out was the residence of Harry Jumping Bull.
 Q  And wou1d you point that out on the map.
 A  This white house here (indicating). It was the bigger of the homes, houses.
{1167}
 MR. SIKMA:  May the record reflect the witness pointed to the white house on Government Exhibit 71.
 Q  (By Mr. Sikma) And did you observe any people around this particular area?
 A  That particular time?
 Q  Yes.
 A  Well, not at that time; no.
 Q  Did you at any time during the afternoon?
 A  Yes, sir.
 Q  And approximately what time did you observe?
 A  It was approximately 3:45 P.M.
 Q  And would you describe for the jury what it was generally that you saw.
 A  Well, I had maintained a position in the pumpkin seed house in the back and suddenly my attention was called upon by Bureau of Indian Affairs officer Marvin Stoldt. He was in the front window of the house and I was in the back. We were watching the activity determining, you know, to see what was going to happen and suddenly he called out for me to come to the front portion of the window, the front window, which I did and he said there was some activity, there was some people running from the Jumping Bull house and for me to take a look, so I did.
 Q  And how did you view the people running from the house?
 A  First of all I did it with my naked eye. I could see people {1168} running from the area away from the house towards the woods, towards the creek.
 Q  Now at this time did you know the condition and whereabouts of Special Agents Ronald Williams and Jack Coler?
 A  No, sir I did not.
 QQ Would you tell what happened next.
 A  I proceeded to take my rifle, I had a scope on it, a seven power scope and I proceeded to focus in on the four people who were running away from that location.
 Q  And did you see anyone who you recognized?
 A  Yes, I did.
 Q  Who was that?
 A  It was Leonard Peltier.
 Q  Do you see Leonard Peltier in the courtroom?
 A  I sure do.
 Q  Would you point him out?
 A  Sitting right there in that yellow shirt (indicating).
 MR. TAIKEFF:  Identification is acknowledged.
 THE COURT:  Very well.
 MR. TAIKEFF:  That is to say, Your Honor, the identification in the courtroom is acknowledged.
 THE COURT:  The record may so show.
 Q  (By Mr. Sikma) Would you point out to the jury by using a pointer where the individuals were running, including the {1169} individual you identified as Leonard Peltier.
 A  The white house that I mentioned before is an area, comes down here, that's a little road (indicating). It comes down the little slope that I later determined, I walked it myself. At the time I didn't know it because of the elevation factor, and when I saw them, I first picked them up, they were in this area and several seconds they continued to run in this direction (indicating).
 Q  And you indicated that you were using a rifle scope to look at this individual.
 A  Yes, sir.
 Q  What was the power of that rifle scope?
 A  It was a 2 x 7 power scope.
 Q  Now how far were you from the area where these individuals were running?
 A  I was positioned approximately 800 yards from the house that I was in until the white house of Harry Jumping Bull, that was my approximation.
 Q  And they were running at an angle but slightly in your direction.
 A  That's correct.
 Q  Approximately how long did you stay in that position in that house, in the Pumpkin Seed house?
 A  I stayed there until such a time or shortly after I was informed, the others were informed that Ron and Jack were {1170} located dead.
 Q  And about what time was that?
 A  Approximately 4:30 is when I received the word over the air that they were dead.
 Q  And approximately when did you leave the Pumpkin Seed house?
 A  Shortly thereafter because I was standing outside and one of the Bureau of Indian Affairs officers called to my attention, he said there was some activity down along the creek, that he had observed two, two individuals.
 Q  And about what time was this?
 A  It was shortly after the announcement was made.
 Q  And where did you go from there?
 A  Well, four of us left in cars and we went to the area to, you know, thinking that possibly this was still part of this group that we had seen earlier, to try to determine what was going on. I proceeded to that location. Not to that, well, to the immediate location where Officer Weston had said he had seen these individuals. I had never seen these individuals.
 Q  Okay.
 What happened at that time?
 A  Well, I got to the area. I was with an officer Marvin Stoldt and there was another agent by the name of Vince Breci who was with an officer Conroy, I believe, and we split up. {1171} It was agreed that the other two officers would go down below along the creek line to see if they, you know, could locate these individuals that were observed by Weston, and I stayed up on the high plateau.
 Q  And what happened?
 A  Well, myself and Marvin Stoldt, we made our way to the end of the drainage, was an area, a high plateau that could overlook the creek, you know, so we could look down in and see if we could see any people, which we did. I laid down, I moved along there very slowly.
 Q  And what happened at that time?
 A  Well, while I was in this position lying down, I began to hear shots, gunshots.
 Q  From which direction were they coming?
 A  Well, I looked down into the creek area and I could not see anything. Then I looked over to the area of the Jumping Bull Hall residence, you know, the Harry Jumping Bull's house and I saw a person.
 Q  And where was that?
 A  Well, it appeared at that time that this individual was running from the, which would be the east side of the creek area running east towards the buildings.
 Q  And how long could you see this individual?
 A  Oh, for, you know, a few minutes or some short amount of time.
{1172}
 Q  Do you recognize this individual?
 A  No, I do not.
 Q  Did you ever in the afternoon observe any other individuals during that afternoon?
 A  Yes, I did.
 Q  And would you tell about what time that was and what the circumstances were surrounding that occasion.
 A  Well, it was, we had just come back to the Pumpkin Seed house after this incident and we needed more people. Marvin Stoldt wanted to go down to the other area of the Rooks' residence and we were discussing, you know, what had happened so far. Suddenly there was a radio message, apparently from one of the other BIA cars, asking for some kind of assistance. There were three agents and four BIA police officers there and I had taken charge of the three agents and assumed control there and had made the decision that if he was going to respond to the immediate area he should take his men and I should continue to keep a safe perimeter because we still had activity down in the Jumping Bull housing area that had not been decided as yet.
 Q  Now how long did you stay then that afternoon in the Pumpkin Seed house?
 A  Well, after Marvin left, it wasn't but five minutes that I began to hear shooting and it was almost immediately that upon hearing the shooting, we all gathered, there was a {1173} transmission from Gary Adams who was on the other side of the field who said, "Fred, there they go. They're shooting down there and they're going up into, across the road," or something like that. I can't remember. "Up the hill."
 Q  Now where was this hill, which direction was the hill from the Jumping Bull residence?
 A  It was down the road quite a bit.
 Q  Down the road, but which direction from the Jumping Bull residence?
 A  It would have to be in a southwest direction.
 Q  And was this across the road that leads around the bottom of the map?
 A  Yes.
 Q  To Highway 18, touching Highway 18 to the right of the map and to the left of the map?
 A  Yes.
 Q  Does this road of which you're speaking in a sense form sort of a horseshoe around the bottom of the map?
 A  Almost. Yes.
 Q  Is there a culvert anywhere on that map, on that road?
 A  Yes, there is.
 Q  And which direction is that from where you were?
 A  Well, there are a couple of them, sir.
 Q  Would you point out or try to describe where they were.
 A  If I may.
{1174}
 If you keep on going down this way (indicating), kind of paralleling this road, the creek and the tree line kind of paralleled it until over here the road came around, way around and over here (indicating) and it starts thinning out as this road and the winding around road come together. That area starts thinning out and there is a culvert down there (indicating). I had seen it later on as I went down to that area. But when I first heard the shooting, I heard it in the area of the Rooks' residence.
 Q  Now where is the Rooks' residence with regard to this map?
 A  That's on down this creek area, too, and near this culvert (indicating).
 Q  And which direction were the people running which you saw?
 A  They were running in a westerly direction up the slope of the hill.
 Q  And did you have occasion to go to that area?
 A  Yes, I did.
 Q  Would you tell the jury what happened when you went to that area.
 A  Well, I was responding in, like I said, just about the same time that I could hear Agent Adams saying, "They're shooting down there," and, "There they go," So I responded, I decided at that point that my assistance was needed there. {1175} I drove with myself, Agent Skelly and Agent Breci. I did not drive. Agent Skelly drove. We drove down there to assist at that location.
 I was in the right front seat. We drove on down. At that point you culdn't hear any shooting. But as I got closer, rolling the windows down, I then realized that the group moved up more to the hills. Suddenly as we drove up, the road has kind of a bank there and it kind of rolls like this (indicating). If you go down the road, if you happen to be behind one of these banks, you can't see what's happening in the upper pasture and we kind of overshot the group that was going up. At that point., as we passed, I yelled for Agent Skelly to stop. I could hear the shooting. The people who were running away had guns. You could see the smoke and you could hear the shots being fired. I yelled to him, I said, "Back up." I said, "They're shooting at us." And so he did.
 I saw other people along the roadside also moving up into the hill but not as far as the group of people running away.
{1176}
 Q  Approximately, did you have occasion to pursue these people?
 A  Well, I did eventually.
 Q  And how much later was that?
 A  Well, I had taken a position back up the rad from whence I came from and into the pasture, the three of us stood with a car. And it was probably some five hundred yards away at that point. And shooting was going on.
 They were running in every direction, up into the hills and out of sight. I took that position, made that decision based on the fact that I though possibly they would continue to move that way, but they did not. At which time I knew it was vulnerable, we were in the open, and decided that we should go back to the Pumpkin Seed House which we did, three of us.
 Q  And about what time was that?
 A  Well, it's getting, it's getting around 6:00 o'clock or so because shortly thereafter I met up with state troopers from the state of South Dakota. Highway patrolmen.
 Q  And where did you go from there?
 A  I saw them coming in from the other side of the roadblock and I, we all got in our vehicle and we drove to meet them. And we didn't quite understand what was going on at that point.
 The still headed into the area where the group had taken off, and we joined up with them. And then we finally {1177} stopped after we got back in there some distance and then they informed me that the aircraft that was flying above had located that same group.
 Q  Did you follow them?
 A  Yes, I did.
 Q  And for about how long did you follow them?
 A  Well, it continued on the rest of that day and eventually, I believe it was around 8:00 o'clock is when I left. It was dark when I left.
 Q  Had you went back?
 A  Well, I went back over to the area of the Harry Jumping Bull residence.
 MR. SIKMA:  I have no further questions.
 MR. TAIKEFF:  May we approach, Your Honor?
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 MR. TAIKEFF:  Your Honor, I wish to advise you that I am not fully prepared to conduct a cross-examination, although I can begin. I don't know whether I can occupy all the time that remains.
 I'd like to offer Your Honor a brief explanation. It is not by way of criticizing the Government. I was, and have been given, 3500 material in advance. Sometimes we get it for five, six or seven witnesses at a time. We had {1178} exhausted all but one of the witnesses I got, not in the last batch, but in the batch before, and that was the special agent by the name of Waring whom I expected would testify prior to the first of the young Indian witnesses.
 But then the evening before the first young Indian witness testified Mr. Hultman advised me that as long as he had the young Indians here he was going to call them first because he had certain reservations about keeping them around and not putting them on the stand. And although I couldn't say that he specifically advised me, I did have a definite impression he was then going to put Agent Waring on. And so although last night we were given the 3500 material for this witness, I did not prepare for this witness because I anticipated that Waring was going to testify before this witness.
 And so I can go for a while, but I'm afraid that I cannot do a complete cross-examination; and as I said before I do not criticize the Government for what has happened. I just wanted Your Honor to know why I was not prepared to maintain Your Honor's schedule.
 MR. SIKMA:  Your Honor, may I comment on that?
 THE COURT:  You may.
 MR. SIKMA:  We called this witness because we knew that Mr. Hultman would have a rather long witness, and I suspected this witness would be very short. So we called this one to give him a few minutes break, and had intended thereafter {1179} to call Special Agent Waring after we finished this witness.
 MR. TAIKEFF:  Now, perhaps --
 MR. SIKMA:  I didn't expect there would be --
 MR. TAIKEFF:  I am positive it was all don in the best of faith.
 MR. HULTMAN:  Both ways.
 MR. TAIKEFF:  Yes. I'm sure of that. I didn't realize it until I started looking at the materials while he was testifying that in fact I may have him for quite some time on cross-examination on a number of important things.
 Now, I would like to avoid losing any trial time. Perhaps the Government would consent to the following:  Have this witness step down because he has to await, I think, the testimony tomorrow concerning Defendant's Exhibit 75 before we would be willing to excuse him in any event. If he steps down now Agent Waring can go on and if Agent Waring is finished before 5:00 o'clock I can begin his cross-examination and then finish with this agent's cross-examination subsequently. The point is, I'm willing to make any arrangement that would permit us to continue until 5:00 o'clock, but I cannot assure the Court that once I begin now at twenty after 4:00 that I could continue with this witness because I haven't fully prepared myself.
 MR. HULTMAN:  Your Honor, could I make a suggestion? I think if we did get to Waring, with no question we won't get {1180} done with him by 5:00 o'clock. There are a couple three more short witnesses of which you have the 3500 material, and I don't think there will be any problem. What I would suggest is that we take those.
 MR. TAIKEFF:  Agreed.
 MR. HULTMAN:  Afford you the opportunity, because otherwise we're going to be in the middle of two witnesses.
 MR. TAIKEFF:  I understand. That's perfectly agreeable, Your Honor.
 I apologize to the inconvenience I have caused to the Court.
 MR. HULTMAN:  Let's give the names now so that counsel -- who do we have yet to call that we could call?
 MR. SIKMA:  Dyer.
 MR. HULTMAN:  Dyer. D-y-e-r. He will be the next witness we will call.
 I think we would be able to go through a couple three very shortly.
 MR. TAIKEFF:  That will be fine.
 MR. HULTMAN:  And accomplish what the needs are.
 MR. TAIKEFF:  Thank you, Your Honor.
 THE COURT:  Very well.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 THE COURT:  The cross-examination of Mr. Coward will {1181} not be had at this time, and you may step down, Mr. Coward.
 Counsel may call the next witness.
 MR. CROOKS:  Government calls Michael Dyer.
 MICHAEL T. DYER,
being first duly sworn, testified as follows:
 DIRECT EXAMINATION
BY MR. CROOKS
 Q  Special Agent Dyer, would you again give you full name for the record, please.
 A  That's Michael T. Dyer, D-y-e-r.
 Q  What is your occupation, Mr. Dyer?
 A  I'm a special agent with the Federal Bureau of Investigation.
 Q  And what is your present duty assignment?
 A  Chicago.
 Q  Calling you attention back to June of 1975. Did you have occasion to be on the Pine Ridge Indian Reservation near Oglala, South Dakota?
 A  I did.
 Q  And calling your attention specifically to the 26th of June of that same year, 1975, did you assist in the search conducted in the crime scene area?
 A  I believe that was the 27th, sir.
 Q  Well, 26th or 27th.
 A  That's correct.
 Q  It was the 27th that actually the search was conducted; is that correct?
{1182}
 A  That's correct.
 Q  And were the searches conducted in conjunction with search warrants issued from the South Dakota Federal Courts?
 A  They were.
 Q  And during the course of the search would you indicate which area particularly you were searching?
 A  I was in the area of tents which was south of the Jumping Bull Hall area.
 Q  All right. I hand you Exhibit 37-A, ask if this is an item that you can identify?
 A  It is.
 Q  And what is that?
 A  This is a Commando Mark 3 semiautomatic 45 caliber rifle.
 Q  So the jury can distinguish, to me that looks like what we call a Tommy gun. That is not an automatic weapon?
 A  No. That's what I thought it was when I first saw it, but it's a semiautomatic.
 Q  In other words for each round you have to pull the trigger each time?
 A  It will fire as fast as you can pull the trigger.
 Q  But pulling the trigger would be an automatic? In other words, you pull it once and it keeps going until you take your hand off the trigger?
 A  That's correct.
 Q  But that is not that, that is a semiautomatic?
{1183}
 A  Semiautomatic, that's correct.
 Q  With regard to that weapon, would you indicate with the pointer, and indicate to the jury where in the tent area it was that you located it. Calling your attention to Exhibit 71, the large map behind. Approximate location.
 A  That was approximately in this area right here (indicating).
 MR. CROOKS:  Let the record indicate an area roughly on the easterly portion of the thatched area referred to as the tent area.
 Q  (By Mr. Crooks) Where was this exhibit found? Was it lying open on the ground or was it under something, concealed in some way? Would you give a description of that.
 A  No. The -- I had stepped over that weapon a number of times. It was hidden under some bark.
 Q  All right. For the jury's information we have seen a photograph or a movie film, and a weapon similar to that appeared. Would that have show the finding of that weapon as depicted --
 A  I found it and I called the photographer over.
 Q  And the weapon was the one that was shown in the photograph, or the movie film?
 A  That's correct.
 Q  All right.
 MR. CROOKS:  United States will offer 37-A.
 MR. TAIKEFF:  No objection.
 THE COURT:  Exhibit 37-A is received.
{1184}
 MR. CROOKS:  That's all the questions we have, Your Honor.
 Mr. TAIKEFF:  May I inquire, Your Honor?
 THE COURT:  You may.
 CROSS-EXAMINATION
BY MR. TAIKEFF
 Q  Agent Dyer, you wrote one or more official reports in connection with your activities relating to this case, did you not?
 A  Reports of interviews, 302s?
 Q  Yes, 302 forms.
 A  Yes, I did.
 Q  And as a general rule, am I correct that these reports are to be written in as much detail as possible so as to record every single fact which comes to your attention before you write the report?
 A  No, that's not a general rule.
 Q  You don't do that?
 A  No. Not every fact that comes to your attention. Some facts --
 Q  Every fact that you think has some significance in connection with your investigation?
 A  That is correct.
 Q  Every fact that you think has some significance in connection with your investigation?
 A  That is correct.
 Q  You don't put what color shoes you were wearing, but you put down something that someone said that might be important in connection with the investigation; is that right?
{1185}
 A  That's correct.
 Q  Now, as a rule the 302 has three different places where a date is put; is that correct?
 A  That's correct.
 Q  And one of the spaces marked "interviewed on" is the date on which you interviewed a person, if that's what the report is about, or the date on which you did the things which you are recording on the 302 if it wasn't an interview?
 A  That's correct.
 Q  So if you interviewed somebody on June 28th you'd put June 28th in the space marked "interviewed on," right?
 A  That's correct.
 Q  And if instead of interviewing someone you went out and you searched an area and you found something such as that gun, then instead of making some recordation you would put in the box marked "interviewed on" the date on which you found that object, even though in fact you didn't interview anybody?
 A  That's correct.
 Q  Now, there's a date that the report itself is physically prepared or typed; is that right?
 A  That's correct.
 Q  And that date appears in the upper right-hand corner of the 302, right?
 A  That is correct.
 Q  And that's designated "date of transcription" correct?
{1186}
 A  The date and the time, that's correct.
 Q  And then there's one other date. That's the date dictated, and that would be the date that you either write out the report longhand or put it on some kind of dictation equipment or dictated to a stenographer, whichever of those three you happen to do? That's the date dictated and that's reported on the 302, is it not?
 A  That is correct.
 Q  Now, in connection with the 302s which you --
 MR. CROOKS:  Your Honor. Excuse me, Counsel.
 MR. TAIKEFF:  Yes.
 MR. CROOKS:  Your Honor, I'll object to this line of questioning. It appears to be going nowhere. It's completely beyond the scope of the direct examination.
 I had assumed that somewhere he was going to be showing him supposedly inconsistent statements of some sort. Apparently he's just trying to have this witness testify as to a general matter of 302, and we certainly object to that.
 This is not the time and place to go into that with this witness.
 MR. TAIKEFF:  Well, Your Honor, this witness has said that in connection with his activities here he did complete, or write, certain 302s. I am making certain inquiries on the subject generally so I can --
 MR. CROOKS:  Well, Your Honor, I didn't go into any {1187} 302s on my direct examination. My point simply is that it's irrelevant to this witness's testimony and cross-examination of him.
 If counsel wishes to call FBI agents during their own case to go through the details bearing 302, that's of course their business.
 My objection is, it's immaterial and irrelevant at this particular time to cross-examination of this witness unless he's attempting to go into a prior inconsistent statement of some sort. And I haven't seen any evidence that he's doing that.
 MR. TAIKEFF:  Well, I couldn't possibly know whether I had any such are to go into until, and unless I had certain information that I needed from this witness. I now have that information, Your Honor.
 THE COURT:  The witness may be, I assumed that the question asked of this witness was preliminary. The witness may be cross-examined on the matter testified to on direct.
 Q  (By Mr. Taikeff) Now, in connection with your finding of the exhibit which was just offered and accepted into evidence, when you first saw that weapon you thought that it was something other than what it was; is that correct:
 A  That's correct.
 QQ And upon examining it you found that it was a semiautomatic rifle?
{1188}
 A  That's true.
 Q  Now, what's the difference between an automatic weapon and a semiautomatic weapon?
 A  The difference is an automatic one, once you've depressed the trigger, it continues to fire.
 A  semiautomatic weapon only fires as fast as you release the trigger and re-pull it.
{1189}
 Q  Now, in order to possess a fully automatic weapon you either have to be a member of the military or law enforcement officer or have a special license, is that correct?
 A  I have no knowledge in that area. I am sure that is the rule, sir.
 Q  And as far as you know, that weapon which was just offered into evidence is a weapon which a person can purchase over the counter in a sporting goods store, isn't it?
 A  I don't know that to be a fact, but I assume if it is not automatic, I am sure you could purchase it.
 Q  I am showing you Plaintiff's Exhibit 34-AA in evidence, and ask, sir, if you know what that is?
 A  This is an AR-15 Colt.
 Q  Is that a copy of something else?
 A  It is a copy of the military weapon.
 Q  The military weapon, semi-automatic or fully automatic?
 A  It is automatic.
 Q  How about this one (indicating)?
 A  That's semi-automatic.
 Q  You can buy it at any sporting goods store if they are in stock?
 A  If they are selling them, that is correct.
 Q  As far as you know there is nothing illegal about my owning a gun like that, is there?
 A  Not that I know of.
{1190}
 Q  Behind you is a map, Government's Exhibit 71. Can you tell us where you were when you entered the Jumping Bull area, how you got into that area?
 A  I came down Highway 18 and came down by Jumping Bull Hall.
 Q  That would be the first road, if you travel from the upper right to the lower left, is that correct?
 A  Down this here (indicating) and down by Jumping Bull Hall.
 Q  And, all right, down. Now, at Jumping Bull, beyond Jumping Bull Hall, trace the path you followed on your way to Tent City?
 A  Came through this area (indicating).
 Q  All right, past the residences?
 A  Right.
 Q  Were you on foot?
 A  I was on foot.
 Q  Go on now, slow down at this point because I want to pin-point something with you.
 A  All right. Came down through here (indicating).
 Q  All right. Stop at that point.
 A  O.k.
 Q  Were you on the road or were you on the grass, assuming there was grass there, at that "Y" intersection, you see what I am talking about, here, right here (indicating), where the letter "P" is, where these cars are depicted, how close did you get to those cars?
{1191}
 A  I don't remember ever going down next to those cars.
 Q  Did you see any cars there?
 A  I saw the cars there.
 Q  Do you have any recollection of what they looked like?
 A  Looked like old cars.
 Q  Was there a red pickup there?
 A  I have no independent recollection of that.
 Q  Let me see if I can refresh your recollection.
 MR. TAIKEFF:  Your Honor, may I have these photographs marked for identification, two of them?
 Thank you.
 Q  (By Mr. Taikeff) Placing before you, sir, after I show them to counsel for the Government -- (indicating) -- photographs which have been marked 93 and 94 for identification, Defendant's Exhibits.
 A  (Examining).
 Q  Do anything to your recollection?
 A  It appears to be the area. The individual truck doesn't mean anything.
 Q  You couldn't say whether the vehicle depicted there was in the vicinity on the map now marked with the letter "P"?
 A  If I saw a]l the vehicles together, possibly it would, you know.
 Q  All right, let me see if I can help you in that regard, I don't know whether I can -- sorry.
{1192}
 A  Like I say, the individual vehicle does not refresh my recollection. It appears to be the area.
 Q  I am holding in my hand Government Exhibit 55 in evidence, the Tent City book, and I am turning it to Page 31 showing a red and white Chevrolet vehicle.
 First, sir, I ask you if you can describe what type vehicle that is?
 A  That appeared to be a four-wheel type, van type.
 Q  Van, o.k.
 Did you ever see that before?
 A  Yes, I recall that vehicle.
 Q  Where did you see that?
 A  I saw that in the area of the tents.
 Q  Did you ever see that vehicle anywhere else in this area?
 A  I did not.
 MR. TAIKEFF:  I have no further questions of this witness.
 Your Honor, I have just had pointed out to me a photograph. I am wondering if I could re-zoom for a moment.
 THE COURT:  Very well.
 Q  (By Mr. Taikeff) Agent Dyer, I am holding in my hand Government Exhibit 56, aerial view of Tent City, and I have it open to Page 4; and I ask you, sir, to look at Photograph D on Page 4 in particular -- but perhaps you would want to look at {1193} all the photographs on Page 4 -- and my specific question is whether roughly in the center of Photograph D you see this "Y" intersection which is marked "P" on Government Exhibit 71?
 A  I do.
 Q  Now, sir, do you see in that photograph the several vehicles which are depicted with little black rectangles on Government Exhibit 71?
 A  I do.
 Q  In looking at that photograph, does that in any way assist you in telling us whether the vehicle I showed you in the two photographs, which are defense exhibits for identification, whether that vehicle is amongst that group?
 A  This is a picture of the area, but these cars are so small it is impossible for me to say.
 Q  Well, looking at Photograph D, would you say whether or not there was a red pickup in that group?
 MR. CROOKS:  Your Honor, I will object to this. This is cumulative. repetitious. The witness has said he can't identify the pickup, he can't identify the photograph. He wasn't paying any attention to it in the first place. I will object to it as simply cumulative and a waste of time.
 MR. TAIKEFF:  Your Honor, the Government may have an objection. The witness has never said he wasn't paying attention to it, and I object to the Government throwing {1194} signals at a witness.
 THE COURT:  Well, the witness has answered that the pictures are so small he could not distinguish it.
 MR. TAIKEFF:  Your Honor, the witness has said he doesn't have a recollection. I am tying to refresh his recollection, if that's possible. If it is not possible, I will accept his answer; but I would like it to be his answer.
 A  I recollect the vehicles being there, and that's obviously vehicles but I can't recollect that individual vehicle.
 MR. TAIKEFF:  That's all I wanted to know. Thank you very much, sir.
 MR. CROOKS:  We have no redirect, your Honor. We ask the witness be excused.
 THE COURT:  You may step down.
 (Witness excused.)
 MR. SIKMA:  Mr. Coppinger, David Coppinger.
 DAVID J. COPPINGER,
being first duly sworn, testifiecl as follows:
 DIRECT EXAMINATION
By MR. SIKMA:
 Q  Would you please repeat your name to the jury?
 A  My name is David J. Coppinger.
 Q  What is your occupation?
 A  I am a Special Agent for the Federal Bureau of Investigation.
{1195}
 Q  And where are you assigned to duty?
 A  I am assigned to Milwaukee, Wisconsin.
 Q  And do you recall where you were on the 29th of June, 1975?
 A  Yes, I do.
 Q  Where was that?
 A  At the Pine Ridge Reservation.
 Q  O.k. Do you recall being in an area to the southwest of the Jumping Bull residence on the Pine Ridge Indian Reservation?
 A  Yes, I do.
 Q  And what were you doing there at that particular time?
 A  We were conducting a search of what was called the escape route of the individuals who we felt were involved in the shooting of the agents; and we were searching this escape route for any evidence that we might find which would identify the people who ran this route.
 Q  Could you tell me whether or not there was a culvert in this area?
 A  Yes, there was.
 Q  And approximately how far, or where was this culvert located?
 A  Well, the culvert was actually, as I recall, a cattle tunnel where cattle passed underneath the highway, from one pasture to another, and going out away from the crime scene area up toward the hills, we conducted this search away from, {1196} going the direction that the individuals were involved fled.
 Q  Is that -- would that be to the west and to the south?
 A  It was a southerly direction, as I recall.
 Q  Did you personally find anything along that route?
 A  Yes, I did.
 Q  And what was that?
 A  I found a four quart water canteen approximately 80 yards in, into the cow pasture from the cattle tunnel.
 Q  I will show you what is marked as Government Exhibit 17 for identification, and ask you whether or not you have ever seen this before?
 A  (Examining) Yes. This is the water canteen that I located, as I stated, about 80 yards in from the cattle tunnel where the individuals were believed to have fled.
 MR. SIKMA:  Your Honor, I would offer into evidece Government's Exhibit 17.
 I would state that the Government expects to connect this up in later testimony, but this witness is taken slightly out of order.
 MR. TAIKEFF:  Your Honor, based on that representation, there will be no objection.
 THE COURT:  Has it been marked 17, did you say?
 MR. SIKMA:  Yes, your Honor.
 THE COURT:  Exhibit 17 is admitted on condition that it be connected up.
{1197}
 (Plaintiff's Exhibit No. 17, having been previously duly marked for identification, so offered in evidence, was received.)
 MR. SIKMA:  I have nothing further at this time.
 MR. TAIKEFF:  May I have just one moment, your Honor, for a possible document to be brought into the Court?
 THE COURT:  You may.
 (Counsel confer.)
{1198}
BY MR. TAIKEFF:
 CROSS-EXAMINATION
 Q  When you first entered this area, how did you enter it?
 A  Are you referring to the pasture?
 Q  No. The general area.
 A  Pardon?
 Q  The general area. And there is a map behind you that you might find useful in giving your answer.
 A  Could you clarify. You mean the reservation itself or where I found this piece of evidence?
 Q  I'll make it easy for you, for all of us. Where were you at 10:00 o'clock on the morning of June 26th, 1975?
 A  I was in Milwaukee, Wisconsin.
 Q  And when did you get to the reservation?
 A  I arrived approximately 2:30 A.M. on June 27th.
 Q  Then did you go to the area known as the Jumping Bull Hall area?
 A  That's correct.
 Q  When you first arrived at the Jumping Bull Hall area, how did you enter that area?
 A  I myself and several other agents actually went to an area we know as tent city. Now initially we went by automobile.
 Q  Initially?
 A  Yes.
 Q  How did you enter that area off the public highway?
 A  We walked.
{1199}
 Q  Would you be kind enough to turn around and take a look at the exhibit behind you. There is a pointer behind you right now and show us how you entered that particular vicinity off the public highway.
 A  On my feet, sir?
 Q  If you are more comfortable that way.
 A  Well, actually we left the vehicles out on the highway, or pulled them off onto a side road or area like this (indicating).
 Q  That's on Highway 18?
 A  That's correct.
 Q  Above the center top of the chart?
 A  I think before, where we left, the particular car I came in would not be on this diagram. In other words, it would be back up the highway a ways.
 Q  All right.
 A  We actually came in and come over what we now know as tent city, coming through this wooded area right here (indicating).
 Q  So you went directly in the road to the tent city area?
 A  I wouldn't say it was the most direct route, but we did go to tent city.
 Q  Do you see the area in the center of the chart which is indicated by several things, including the word "residences"?
 A  Yes. Right here (indicating).
{1200}
 Q  Did you ever go to that area on that day or any day after that?
 A  As I recall, after we had discovered SA Williams' car here, as is shown here near tent city, there were some search warrants executed in this area. Then, as I recall, when we left this area with that evidence that we secured there, we did come back up this road (indicating) and it was at that time when I first saw these residences here that you speak of. Went on out the usual route.
 Q  I gather then from the way your pointer moved that you reached that Y intersection where the letter "P" is written in by hand?
 A  This "P" here?
 Q  Right there. Yes.
 Did you go through or pass that intersection?
 A  This particular area? I really don't recall whether I come up the road -- in other words, again, I was walking, as best I recall, again, our car was, as I recall it, back out this way. The one I came in on. This area here was not partlcularly, the terrain is not that difficult to get over. I may have necessarily hit this Y. I don't recall hitting it particularly any particular time.
 Q  Would you be kind enough to resume your seat.
 Now on direct examination you said you went to tent city because, I'm not quoting you but I'm describing what I {1201} believe was your testimony in substance, to investigate people whom you believed were involved in the shooting of the agents, is that correct?
 A  I recall --
 Q  Is that the effect of what you said on direct?
 A  On direct. I wouldn't quote that escape route.
 Q  Did you describe the people?
 A  I said individuals I believe.
 Q  Or individuals whom you believed used that escape route as people whom you believed to be involved in the shooting of the agents?
 A  That's correct.
 Q  Now generally speaking, upon what was that knowledge or function based?
 A  Well, this was obviously based on information relayed to me from those agents who were on the scene the day before.
 Q  Since the 26th FBI agents had been in and around that area in the course of their official duties, is that not correct?
 A  Well, I can only, I arrived on the 27th.
 Q  People spoke to you, did they not?
 A  That's right. I was given information.
 Q  By other agents?
 A  That's correct.
 Q  You're not accustomed to other agents giving you false inforamtion, are you?
{1202}
 A  No.
 Q  So you were operating under the assumption, were you not, that they were giving you information which was gathered in connection with their official work, weren't you?
 A  That's correct.
 Q  And they told you something about what their beliefs were up to that time, did they not?
 A  They told me what they had firsthand knowledge of. In other words, these individuals had been followed through this cattle tunnel on up into the hills, across this cow pasture the day before.
 Q  But they told you what the investigation was about generally, didn't they?
 A  Well, obviously I knew what that was.
 Q  Don't say obviously. I'm asking you whether they told you something about what the subject matter of your work was that day.
 A  Well, I knew that before I left Milwaukee. Two agents had been shot in this area.
 Q  And did they, did they give you any information? Did they discuss with you up to that point what they believe to be the case?
 MR. SIKMA:  Your Honor, I'd object to this as irrelevant, beyond the scope of direct examination and also totally irrelevant. The question and statement were merely {1203} preliminary to indicate the state of mind of the witness as to why he was in this specific and particular area and it was very limited in scope, Your Honor.
 MR. TAIKEFF:  Your Honor, I think it was rather substantial in scope and I'll exploring the basis for his state of mind. It was offered by the government on direct, otherwise I would not he questiong him this way.
 THE COURT:  What was offered by the government on direct examination?
 MR. TAIKEFF:  His statement that he was going to investigate the escape route of the individuals who they believed to be involved in the shooting of the agents.
 THE COURT:  Very well. Proceed.
 Q  (By Mr. Taikeff) Now did you speak with other officials at the Federal Bureau of Investigation prior to the time you reached the assumption or conclusion which you testified to?
 A  I spoke to other agents; yes.
 Q  Did you speak to Agent Adams?
 A  I, on June 27th? Prior to the time I went into tent city are you asking?
 Q  Well, you put two facts in there. Let's just say prior to the time you went into the tent city, whether it's on June 27 or any other time prior to the time you went into tent city.
 A  I don't recall speaking to Agent Adams.
 Q  And can you say whether or not you did or not at all?
{1204}
 A  Pardon me?
 Q  Or your memory is blank?
 A  I said I do not recall speaking to Agent Adams on the 27th of June.
 Q  How about on the 26th?
 A  I did not speak to Agent Adams on the 26th.
 Q  How about on the 25th?
 A  No.
 Q  Can you name any agent you spoke to on any of those three days?
 A  I could.
 Q  Tell us the names.
 A  I spoke to Agent Dale Miller. The agents that you've asked me about --
 MR. SIKMA:  Your Honor, I would object to this. There is absolutely nothing of relevancy here whatsoever.
 THE COURT:  Objection to the question is sustained. It's too broad as to whether he talked to any agents.
 MR. TAIKEFF:  Before he went into tent city. I just want to know the names of the agents who gave him information upon which he based the statement which he made in his direct examination.
 THE COURT:  Very well. I will allow that question. But that wasn't the question asked.
 MR. TAIKEFF:  I stand corrected, Your Honor.
{1205}
 A  You want the name of the agent who relayed the information there was such a place existed as tent city?
 Q  (By Mr. Taikeff) No, sir. That's not my question.
 A  Well, the agent I spoke to on the 25th and 24th of June and the 26th were all in Milwaukee, Wisconsin, obviously, because I was not not on Pine Ridge Reservation until June 27th. In the early part. Dawn as I recall of that morning.
 Q  Let me take you back so you'll understand the origin of my question. On your direct examination, in response to a question by the government, you indicated, perhaps not in these precise words, that you went there to investigate the so-called escape route those individuals who we believe to be involved in the shooting of the agents. Now I'm trying to find out from you what was the basis of your belief by asking you who gave you information which brought about the belief that you have told us ahout in your direct examination. Do you understand what I'm looking for?
 A  The agent, I cannot recall his name that actually, you're asking me when I arrived at the Pine Ridge Reservation who gave me information? Let me clarify something.
 When I found this piece of evidence, Exhibit 17, the canteen, this was on June 29.
 Q  All right.
 A  June 27th, I spent the day basically at tent city searching that area pursuant to a search warrant.
{1206}
 Q  Okay.
 A  The escape route, as I recall, we did not conduct that search of that escape route actually until June 29th because there was a lot of other work closer in to the crime scene that was being conducted on the 27th and 28th.
 The 29th we got out to the cattle tunnel, crossed the cow pasture, as I mentioned, and this is when I found the canteen.
 Q  Is it accurate to say the moment before you embarked upon your search of the so-called escape route you believed that you were checking on the escape route of individuals who had been involved in the shooting of the agents on June 29th? Yes or no?
 A  Yes.
 Q  Now I want to know the names of the people who provided you with the information which led you to that belief.
 MR. SIKMA:  Your Honor, this question has been asked and answered. He indicated, I believe.
 MR. TAIKEFF:  That's correct. It's been asked but it's never been answered. It's been asked three or four different times and I can't seem to get an answer out of this agent.
 THE COURT:  Are you able to answer the question.
 THE WITNESS:  Your Honor, I don't recall the agent who was really in charge of telling us how to conduct the sweep {1207} of this escape route this moment. The information, I'm sure, as Counsel has suggested, may have come from, as he indicated, Special Agent Adams who was on the scene the day of the crime and a few others that were on the scene who have or possibly will be testifying.
 Q  (By Mr. Taikeff) Were you asked or was it suggested to you in connection with your official work by any other agents of the FBI that you look for a red pickup truck? Yes or no.
 A  Counsel has to ask -- you mean on what date are we talking about?
 Q  At any time that you were there doing investigation in connection with this case.
 A  I can't recall that we -- I was instructed to look for a red --
 Q  Was there talk about a red pickup truck amongst the fellow agents?
 MR. TAIKEFF:  And I hope the government will not throw a sional to the witness.
 MR. SIKMA:  Your Honor, I would object. This is completely --
 THE COURT:  Objection sustained. This goes beyond the direct examination.
 MR. TAIKEFF:  I have no further questions.
 THE COURT:  You may step down
 Just a moment. Do you have any questions?
{1208}
 MR. SIKMA:  No further questions.
 THE COURT:  You may step down.
 MR. SIKMA:  Your Honor, could I make an offer of evidence of a couple of items which were brought up during the course of the day at this time?
 THE COURT:  How much time do you intend to take?
 MR. SIKMA:  Just long enough to read off the list of items, Your Honor.
 THE COURT:  Very well.
 MR. SIKMA:  Government Exhibit 34AA which is the AR 15, Government Exhibit 36A which is a shotgun, Government Exhibit 33A is a .44 caliber Luger which was identified by Wilford Draper. 36A is a shotgun which I believe Counsel for both sides have agreed to stipulate was the shotgun which was owned by Special Agent Coler which was with him on the 26th of June, 1975, at the time he met his death and Government Exhibit 34AA is an AR 15 which is not a firearm which, is one which was both identified by Anderson and also identified by Wilford Draper. 36A, or, excuse me, 33A was also identified by Anderson.
 MR. LOWE:  No objection, Your Honor.
 THE COURT:  33A, 34AA, and 36A are received.
 The court is in recess until 9:00 o'clock tomorrow morning.

TRIAL TRANSCRIPT