PELTIER TRIAL: WILFORD DRAPER

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

MR. HULTMAN: May it please the Court, the plaintiff calls Wilfred Draper.
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WILFORD DRAPER,
being first duly sworn, testified as follows:
DIRECT EXAMINATION
By MR. HULTMAN:
Q Would you state to the jury your name, please?
A My name is Wilford Draper.
Q And where do you live, Mr. Draper?
A Minifarms, Arizona.
Q And how long have you lived in Arizona?
A For the last eight years.
Q And with whom do you live in Arizona?
A My family.
Q And would you tell the jury the make-up of your family?
A I've got three sisters, two brothers, and of course, mom and dad.
THE COURT: Are you able to hear him?
Mr. Draper, the people at that table have to hear you, and I would ask that you try and speak up loud enough so that your voice may be heard.
Q (By Mr. Hultman) I want to take you to the year, 1975, and the early part of June 1975, Mr. Draper, and did you have an occasion to go to a convention?
A Yes, I did.
Q And would you tell the jury in your own words where it was that you went?
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A Went to Farmington, New Mexico, there, and participated in the American Indian Movement convention.
Q And did you meet old friends there as well as make new friends?
A Yes, I did. I met a Leonard Peltier, Dino Butler, and Bob Robideau, Norman Brown and Mike Anderson, Norman Charles.
Q Did you meet -- those were all men, is that right?
A Yes, sir.
Q And you have referred to Mr. Peltier. Do you see him in the courtroom here today?
A Yes.
Q And would you tell the jury where he is here in the courtroom?
A He is over there sitting, the yellow ribbon shirt.
MR. LOWE: We will stipulate identification, your Honor, no question about that.
THE COURT: Very well.
Q (By Mr. Hultman) Now, did you have occasion to meet some young women as well as these men that you have mentioned?
A Yes, I did. I met Jean Bordeau and Neelock and Lynn.
Q All right. How long about were you at the convention, do you recall?
A Three or four days.
Q And where did you go from the convention in Farmington, New Mexico?
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A We went to South Dakota.
Q And in what area in South Dakota?
A To the Pine Ridge Indian Reservation.
Q And would you tell the jury who it was that -- if anybody -- that you left Farmington with and how you traveled?
A I left with the people, the people I met there at Farmington, and we traveled in two cars.
Q And was that the group of people that you have just mentioned up to this time?
A Yes.
Q All right, and would you tell us what kind of cars were these and who did they belong to, if you know?
A There was a light green car, I think that belonged to Leonard Peltier, and there was a dark green pickup with a white camper. I don 't know the owner of that.
Q All right. Now, who did you ride with in going from Farmington to the area of the Pine Ridge area in South Dakota?
A I rode with Dino Butler and Robideau, and Norman Charles in the camper.
Q All right, and was Leonard with you in one -- was Leonard there in one of the two automobiles?
A Yes.
Q And were the rest of the names you have not mentioned in the other automobile traveling?
A Um-hum.
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Q All right. Once you got to the Pine Ridge Indian Reservation area, where specifically did you go?
A Went to the town called Oglala, and from there we went to a man by the name of Harry Jumping Bull's place out in the country.
Q And did you stay there at Harry Jumping Bull's then for some time after that?
A Yeah. We stayed there a couple of weeks.
Q All right. Now, I want you to turn around and to the back of you, to the rear of you is an object which is a map of an area; and it is Government's Exhibit 71, and ask you whether you recognize that particular exhibit?
A Yes, I do.
Q And you have seen that exhibit or one like it a number of times before, have you not?
A Yes, I did.
Q All right, and you are familiar with that particular area for the fact that you stayed in that area for a couple of weeks, is that correct?
A Yes, I did.
Q All right. Now, I want, Mr. Draper -- do you understand that the questions that I am asking you, I want you to respond on the things that you saw and observed at that time and not anything you may have learned since that time, by talking to other people or friends, do you understand my questions are {1010} going to be about the event that happened, and I want you to tell us about the things that you saw and observed at those times, and separate them from what maybe you have talked to somebody about since that time, do you understand?
A Yes.
Q To the best of your ability, of course, all right.
Now, where did you live in the Jumping Bull area, would you tell the, jury and explain to the jury where you lived, and where any other people lived in the Jumping Bull area once you got there, and maybe you could take the pointer and point out where it is that you lived and where any others lived?
A (Examining) I lived right behind Harry Jumping Bull's place.
Q All right. Would you point that out to the jury?
A (Indicating).
Q All right, and when you say "behind it", are you referring to which direction with relationship to Highway 18?
A South, southeast.
Q All right. Would it be toward Highway 18 as different from away from Highway 18, from the Jumping Bull's?
A Yes.
Q And had you lived at any time -- or did you stay at any time down in an area which is known as the tent area?
A Yes. I used to stay down there.
Q Is that when you first arrived?
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Q And when you first arrived, then would you tell the jury who it is that stayed in the tent area?
A Stayed -- let me see. Dino Butler and Leonard Peltier, and Bob Robideau, Norman Browm, Norman Charles, Mike Anderson, Joe Stuntz, and Lynn Neelock and Jeannie.
Q All right, and about how long did you stay there with those people in the tent area?
A A couple of days.
Q All right. Then where did you go?
A I moved up to Harry Jumping Bull's place.
Q All right, and did you live in Harry Jumping Bull's, or did you live in the area of Harry Jumping Bull's home?
A In the area.
Q And what did you live in?
A White tent.
Q And why was the reason that you moved from the tent area?
A Didn't like the atmosphere down at Tent City.
Q What was the atmosphere that you didn't like down in Tent City?
MR. LOWE: Objection, Your Honor, this is not relevant to the charges, not talking about June 26th, absolutely irrelevant.
THE COURT: Sustained.
MR. HULTMAN: Your Honor, may we approach the bench?
THE COURT: You may.
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(Whereupon, the following proceedings were had at the bench:)
MR. HULTMAN: Your Honor, the response to the question, counsel knows as well as I do, will be the reason --
MR. LOWE: (Interrupting) Can you keep your voice down? I know you want the jury to know this.
THE COURT: The last remark was unnecessary.
MR. HULTMAN: (Continuing) -- is the fact -- your Honor, I can't talk any lower than this and be heard, I am doing my best -- is the fact that the reason he left was because of all the guns, and in particarr the relationship of the Defendant himself to the guns; and I think that's very relevant to all the events that are going to follow. That's my reason for the question, your Honor.
MR. LOWE: I don't think that changes the relevancy one bit, why he moved from one place to the other. He stayed in the area. It is not relevant, certainly not relevant to June 26th.
THE COURT: I will reverse my ruling on the basis of that information and permit the answer.
MR. LOWE: We will object, your Honor.
THE COURT: Very well. The record shows your objection.
(Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
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Q (By Mr. Hultman) Now, Mr. Draper, I will again ask the question that I just asked, why was it that you moved from the tent area?
A Like I told you, I didn't like the atmosphere down there.
Q And what is it that you referred to specifically when you refer to the atmosphere down at the tent area?
A Just didn't like it down there, that's all.
Q You have responded to that very question at an earlier time, have you not, specifically?
A Yes.
Q Under oath, and would you indicate to the jury what the specific reason was as to why you left and with reference to any specific individual?
MR. LOWE: Your Honor, the witness has just answered the question, answered it fully. He didn't indicate that he didn't understand the question. I would object as to its being asked and answered.
THE COURT: He had also indicated that he previously made a specific response under oath, so the objection is overruled. You may answer.
The reporter will read the question back.
(Question was read by the reporter.)
A Well, I left because Leonard Peltier was out there, and he was carrying guns around.
Q (By Mr. Hultman) All right. Now, Mr. Draper, would you {1014} tell the jury what at this time to which you are testifying, as well as during that time, what was your feeling concerning guns?
A Well, I like guns. I don't think it is wrong for people carrying guns and things like that.
THE COURT: You will have to speak up.
THE WITNESS: I said that I like to carry guns and do a little shooting, go hunting myself.
Q (By Mr. Hultman) During the time of the 26th of June, and the immediate days following that, did you have any gun or carry any gun of any kind?
A No.
Q Now, what did you do in and about the Jumping Bull property from the time you got there, approximately two weeks before the 26th of June, what did you do while you were there?
A Well, I used to help the old man, Harry, help him around the house, used to help Leonard, to help work and set up tents.
Q Did you do some work in an about the tent area where the rest of the people live?
A Yes.
Q And would you tell the jury what it is you did?
A Well, I helped chop wood, and I helped set up tents, and I helped haul water, things like that.
Q All right. Approximately how many tents were there in the area where the tents were located?
{1015}
A There was three tents and one tepee.
Q And did the people that you have mentioned, other than yourself, live in that area in those three tents, in the tepee?
A Yes, I used to live down there.
Q Now, during this period of a couple of weeks, what was it that the others did, in terms of their activity in general, would you tell us what generally took place during the two weeks?
A Well, they just about did the same thing I did. We just lived there for two weeks.
Q Was there any training of any kind that took place during the two weeks?
A Maybe there was, but we used to do a little shooting ourseves. I don't know if that's training.
Q Do you recall using the word "training" yourself in responding to a question at another time under oath, that you mentioned the fact that somebody was doing some training?
A Yes, I did.
Q Would explain just to the jury what it was that you mean and meant by the word "training"?
A Well, I used to shoot around, just like I would be sighting the gun, training yourself to sighting the gun.
Q Did anyone ever show you in the encampment area, the general Jumping Bull area and the tent area, or in that general {1016} area, how to use any particular kind of weapon or how to fire any particualar kind of weapon?
A Yes.
Q Who was that?
A Leonard Peltier and Dino.
Q Let us go to the 25th of June, and I would like to ask you whether or not you remember doing anything that day sometime, at any time outside of the Jumping Bull area itself, did you go to town any time that day?
*A Yeah. It was in the afternoon. I was with Mike Anderson and Norman Charles, and we went into Oglala, little compound there, went to take showers; and we knew some people there, so we went there and got cleaned up; and on our way back we got stopped by Jack Coler and Ronald Williams and some BIA police officers.
Q All right. You mentioned that you got stopped by two specific men and by name. Did you know at that time what those men's names were?
A No.
Q All right. Have you learned since what the names of those men were?
A Yes.
Q This is why I want to make certain, Mr. Draper, that in responding -- so that in all faithfulness and in all truthfulness, as I know you are, that you tell about what it is you saw {1017} and observed at the time and not necessarily something that you have learned since, so you understand what I am saying?
A Yes.
Q All right. So that you didn't know the names of the two agents at that particular time, is that right?
A No, I didn't know.
Q But you did know they were two agents, is that right?
A That's right.
Q All right. What, if anything, happened there, would you tell the jury then in your own words what it was that took place there?
A Well, they stopped us and asked us who we were, and they asked us if we know Jimmy Eagle. They had a warrant for Jimmy Eagle, and we told them "We don't know him," and the FBI Agent, I think it was Coler, said, "Well, we are not too sure about you guys." Then he said, "I don't know how Eagle looked myself, so we are going to take you into Pine Ridge; and when he was going through Norman's towels, stuff, found a gun clip on him.
Q Now, do you remember what the gun clip looked like, just in general?
A I think it has a 15 round clip, either 308 or 303.
Q I am going to show you a part of an exhibit which has been marked as Government's Exhibit 69-A, and I want you to show the jury or point out to the jury what it is, if you know, a clip is; could you just on this weapon point out to the jury what a clip is, or what you know a clip to be at that time?
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A Yes.
Q All right. Would you point it out to the jury, just what is the clip.
A This is a clip (indicating).
Q All right. Now, I'm going to ask you with reference to that evening and what you remember, or that day, and the clip you are referring to, does this in any way have any resemblance to the one that you have just touched on Governrnent's Exhibit 69?
A No.
Q All right. What do you remember as far as the clip at that time, that particular time? What did it look like?
A It was a different shape than that for sure, and --
Q All right. And would you describe what the clip looked like as you best recall.
A (No response.)
Q Did it have any rounds in the clip?
A No.
Q As you recall it did not have?
A No.
Q Now, did the agents at that particul time ask any questions of you?
A They just told us "We're going to take you to Pine Ridge," that was it. So we went with them.
Q Did you recall them asking you what your names were?
A Yes.
1019
Q And what if any response did you make?
A I gave the name David Many Horses and Norman and Charles gave their name.
Q And did you recall any of the agents who were there doing anything at the time they asked you those questions?
A No.
Q Do you recall whether or not they wrote the names down in any way?
A Yes. They wrote it down.
Q All right. If I were to show you now what has been marked Government's Exhibit 15 and ask you to look at it and to read the items that are on there. I would ask you first of all whether or not you recognize, not from having seen then before, but just any words that are on that piece of paper. Do you recognize any words, just the words themselves?
A Yes. There's David Many Horses.
Q Is that the same name you gave on that occasion?
A Yes.
Q I notice on this exhibit there is a date, October 1, '58. Does that have an significance as far as you yourself, does that date mean anything to you just as a day?
A That was the birthday I gave to the agents.
Q All right.
MR. HULTMAN: Your Honor, at this particular time I would offer into evidence Government's Exhibit 15.
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MR. LOWE: No objection.
THE COURT: Exhibit 15 is received.
Q (By Mr. Hultman) Do you recall, Mr. Draper, any of the names that either of the other two men that were boys that were with you at the time gave to the agents?
A No.
Q All right. Now, did the agents at that time, was there anybody else besides the two agents that you recall?
A Yeah. There was some BIA police officers.
Q Did they come up before or after the FBI agents?
A At the same time.
Q All right. And were they in the same car or in a diferent car?
A Same.
Q All right. As you recall they were in the same car.
All right. Now, did anybody in the process of your discussion concerning whether you were Jimmy Eagle or not, did anybody give you a hard time or a hassle in any way at that time?
A No.
Q Would you explain to the jury what was the treatment that you received by the agents.
A They just asked us to go with them. We went with them. There was no fight or nothing.
Q All right. And who got in the car?
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A All of us.
Q All right. Now, do you recall at that time there were two agents; is that right?
A (No response.)
Q And there were three of you; is that right?
A That's right.
Q Now, did the BIA fellows get in the same car also?
A No. They went back before.
Q All right. So when you responded to me only one car a second ago you were just referring to the agents having one car; is that right?
A They came in two cars really. They sent an officer back to Pine Ridge and the agents stayed.
Q All right. Now, if I'm not, if you don't understand my questioning at any time, would you make sure that you ask me because I want to, want you to tell us what you do reca]l.
All right. What then happened when you got to the station at Pine Ridge?
A There was a man there, the booking officer. The agent told us that this man looked like Eagle, and he took us down to this man who recognized us. When we got there the man told the agents that this ain't none of them.
Q So it was your clear understanding at that time that somebody though that maybe one of you was Eagle or looked like Eagle; is that right?
{1022}
A That's right.
Q And that's why you went to the station?
A Yes.
Q And at the station, though, the man that you talked to there who knew Mr. Eagle said, no, that they are not?
MR. LOWE: Your Honor, this leading is getting outrageous. I was waiting to see how far he was getting to him to give him a script.
THE COURT: The objection is sustained.
Q (By Mr. Hultman) What if anything, what if anything did you do next?
A We just waited around until another officer took us back to Oglala.
Q All right. And did he drop you off where you wanted to go?
A Yes.
Q Now, during this whole period of time did any of the officers in any way give any of you a bad time or anything resembling that?
A No. Were they carrying out their duties as you would expect them to?
A Yes.
Q Was there anything unusual or unordinary about it?
A No.
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Q Now, where was it, if you can tell the jury, that they left you off, or that this person let you off at your request?
A The turnoff right there on Highway 18. Turnoff that goes towards Jumping Bull residence.
Q All right. Would that generally be as you are looking at Govornment Exhibit 71, if you would turn, would that be somewhere up there on Highway 18 as you can see in this, in this exhibit?
A Yes.
Q All right. And what if anything did the three of you then do?
A We just walked back in the, to the place.
Q All right. And when you say "you walked back to the place," what are you referring to by the "place"?
A Jumping Bull's place.
Q All right. And where then specifically at Jumping Bull's place did you go?
A Over to his house, to one of the cabins there.
Q All right. And did you go, did you see anybody there at the cabin?
A Yes.
Q All right. And who was i[t]?
A We saw Leonard.
Q And what if anything was said or done at that time?
A He just told us, "I hear you guys went to Pine Ridge with some agents," and that was it.
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Q What was his reaction at that time?
A Well, he felt like he --
MR. LOWE: Objection, Your Honor, to the form of the question. He can only state what he observed. He can't read Mr. Peltier's mind.
MR. HULTMAN: I'm just referring to any observations that he made and any statement that Mr. Peltier may have made at that time.
THE COURT: Why don't you restate the question. The objection is sustained.
Q (By Mr. Hultman) All right. Did Mr. Peltier say anything specific to the three of you at that time?
**A Just what I told him.
Q All right. And would you tell us the manner in which he said it to the three of you?
A He said, "I heard you guys went to Pine Ridge with some agents, and did they do anything to you guys, or anything like that, did they harm you?" We told him no, because we went along with them. Told him they were looking for Eagle. He said "It's okay."
Q All right. Now would you point out on Government's Exhibit 71 for the jury, and if you have to get up to do that, with the pointer, would you show them the building where this conversation took place.
A (Indicating.)
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Q And is that a log house?
A Yes.
MR. HULTMAN: Let the record show that the witness poirted out the residence that has been commonly referred to as the log house.
Q (By Mr. Hultman) Now, where did you stay that night then?
A I stayed up in the tent in the back of Jumping Bull's
Q All right. And did anybody stay there with you?
A No.
Q So is it a fact that you stayed in that tent by yourself; is that right, Mr. Draper?
A That's right.
Q All right. Now, tell us, in the morning what did you do in the morning, the next morning, which is the 26th of June?
A I woke up about 8:00 or 8:30, something like that, and I decided to haul water down to the tent area.
Q And was this something that you did regularly?
A Yes.
Q And about what time of the morning was that?
A 9:00. 9:00, 9:30
Q All right. And at that time of the morning did you see any people that were in the tent area?
A Yes. I saw little Jimmy, I saw Norman Charles, Dino, Leonard. I think it was Neelock, too.
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Q All right. And what did you continue to do that morning then?
A Just put water in the tank down there, the barrel; and stood around the talked.
Q All right. Did you have an occasion later that morning to hear anything that brought some events to your attention?
A No. Until later on, after a while when I was down there, I heard some gunshots.
Q All right. Where were you at the time that you heard the gunshots?
A I was in the tent area.
Q All right. And do you recall at that time whether or not there was anybody specifically with you at that time?
A No, there wasn't.
Q Would you describe the tent area in terms of the foliage and so forth for the jury.
A I don't understand your question.
Q Well, would you describe what the tent area was like in terms of trees and bushes and foliage.
A Yeah. There was bushes and trees. It was a pretty wooded area.
Q Is it very difficult to see in that area?
A Yes.
Q And when you heard the shots would you describe to the jury what it was that you heard, what did it sound like?
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A I'm pretty sure it was gunshots, that's for sure, and it came from the direction of, from the Jumping Bull's house.
Q All right. Would you tell us about how many shots that you heard?
A First I just heard two shots, then after that, I waited for a while and then some more shots.
Q And would you point out on the map behind you, Government's Exhibit 71, the area in which you heard the shots that you are now refferring to.
A (Indicating).
Q All right.
MR. HULTMAN: Let the record show that the witness showed the general area between the point on Government's Exhibit 71 that is referred to as the green house and the area where a "P" is marked, an area between those two areas, those two particular points.
Q (By Mr. Hultman) What if anything did you do next?
A Well, I just stood around for a while and walked around the camp.
Then I heard somebody run up that way, heard some voices. They said, "Let's go check it out, see what's happening, up there." But I don't recall anybody carrying guns when they ran up there, though.
Q All right. When was the first time then that, you see somebody specifically after hearing the shots and doing the {1028} things that you've referred to?
A I saw little Jimmy there.
Q And what was little Jimmy doing, if you recall?
A Must have scared him or something like that, and stood around and asked me "What are you going to do, what are we going to do?"
Q Now, who is the next person or persons that you saw?
A Saw Joe Stuntz, Norman Charles. And after a while I saw --
Q When you saw the two you're now referring to what were they doing, what did they do?
A They were doing the same thing as I was doing, wondering.
Q All right. And what if anything did they then do?
A I think they ran up there to check it out.
Q All right. Now, what if anything then happened?
A Nothing. I just heard some more shots and some more and some more.
Q Now, when was the next time that you saw any other persons than the ones you've refferred to?
A After a while I saw Dino and Norman Brown around there.
Q And what did they do?
A They just stopped for a while and went back up that way again.
Q Did you see them with any guns of any kind?
A No.
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Q All right. Now, what if anything did you do next?
A Well, I just walked through the camp and started walking down the trail and just kept walking to the woods, down the ravine away from the gunshots.
Q Now, did you hear gun shooting going on for a period of time then while you were walking away from the camp area itself toward the ravine?
A Yeah. There was all the time.
Q All right. Now, about how long did you stay in the tent area before you saw some other individuals back in the tent
A Quite a while.
Q All right. And when you came back to the tent area who were the first people that you saw when you returned from down behind the tent area back to the tent area?
MR. LOWE: Objection, Your Honor. There's no foundation that he came back to the tent area at this point.
THE COURT: Are you withdrawing your question?
MR. HULTMAN: I will withdraw the question, Your Honor.
Q (By Mr. Hultman) Did you subsequently come back to the tent area?
A Yes, I did, later on.
Q All right. Now, when you did come back to the tent area later on would you tell the jury who it was that you first saw?
A I saw Leonard and Dino and Bob.
{1030}
Q And where were they when you saw the three of them?
A The tent area.
Q And do you remember where spccifically, or with relationship to any particular object in the tent area?
A Well, they were loading up some radio equipment in the red van.
Q All right. Now when you say the "red van" would you describe that to the jury, the color and the type of car, to the best of your knowledge as you knew it then.
A It looked like it was a '68 or '69 or '67. Looked like a Travellall van with red color, white top.
{1031}
Q It was a white top, you say, and what was the other color?
A Red.
Q Had you seen that particular vehicle earlier in the day that day?
A No.
Q Had you seen the vehicle on previous occasions in the Jumping Bull area?
A Yes.
Q Had you seen it on other occasions in the tent area?
A Yes. It was there the past weeks.
Q And do you know whose vehicle it was?
A No.
Q Did you kow who normally drove it?
A Yeah. Bob and Leonard.
Q Now when you went down that morning to the tent area and was chopping wood and carrying water, was the red and white van there at any time earlier that day? Did you see it anytime earlier that day?
A I don't thik so.
Q But when you returned the vehicle was there at the time you're now talking about?
A Yes.
Q Did anybody else come into the area after the three that you're referring to?
A Saw Norman Challes later on, then after while everybody {1032} came back in. Norman Brown, Mike Anderson.
Q Now what if anything took place then at that time, could you tell the jury in your own words what were the events that took place at that time in the tent area?
A The first thing, we wanted to get out of that place, so we decided to take the red van and get out, but after awhile changed our minds. We decided to just walk out.
Q Now did Leonard during this time give any directions?
A No.
Q Who was it that decided that you would leave in the van, if you know?
A I don't know.
Q Had you seen any radio equipment either in tent city, or in the tent area before that particular moment?
A I seen it there weeks before but...
Q Was anybody using it?
A Not as I recall.
Q Did you see the radio equipment at any time in New Mexico or on the trip back from New Mexico?
A Yes, I did.
Q And who did that equipment belong to, if you know?
A I think it belonged to Dino, Leonard or Bob.
Q But it was with you when you came from New Mexico, is that right?
A That's right.
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Q Was there any discussion at that time concerning whether or not all of you would leave together or leave separate?
A No. There was no discussion. We just happened to leave together and stay together and walk out together.
Q Was anything said as to what would happen if somebody didn't go as a part of the group?
A Yeah. For one thing if you left the group at that time you would get arrested.
Q And who was it that indicated that?
A Leonard and Bob.
Q Did Leonard indicate anything else to you that would happen if you didn't stay with the group?
A No.
Q Did you have any discussion with Leonard at that time as to you personally leaving the area by yoursef?
A Yes.
Q And what did he tell you?
A He used to tell people that, like you run from your group or if you run from a firing group the leader of that group will personally shoot him, shoot him.
Q And is that the reason why you stayed in the group at that particular time?
A Yes. In this case Leonard was the leader.
Q Now did anybody leave the group before you actually left the tent area?
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A No. It was -- little Jimmy.
Q And when you referred to little Jimmy, would you tell the jury who little Jimmy was?
A It's a 12 year old boy at that time, full-blooded Sioux Indian. Jimmy Zimmerman is his real name. He's from Rapid City.
Q Now were each of you because of the closeness to each other, did you know each other by first names or by shortened names like little Jimmy you just referred to?
A Yes.
Q Did the other people know you by a specific name other than the name of Wilfred Draper, did they have a nickname or short name for you?
A Yes.
Q What is that, Mr. Draper?
A Wish.
Q So that when anybody refers to the name Wish, they're referring to you, isn't that correct?
A Correct.
Q And that's the name that most everybody knows you by, sort of a nickname or short name, right?
A Right.
Q Now how old, Wish, were you at this time?
A I was 18.
Q And you said little Jimmy was 12, is that right?
A That's right
{1035}
Q And who was it, was there somemody that was close to little Jimmy as far as the group of people that lived in the tent area?
A Yes. There was a Jane Bordeau. It was Jimmy's oldest sister. She was about 16 or 17.
Q Was there anyone of the fellows that was particularly close to little Jimmy?
A No.
Q Did you have occasions to be with little Jimmy?
A Yes.
Q And what was it that was determined at that time concerning little Jimmy?
A You mean at the time when he left the group?
Q At the time that you're now referring to; yes.
A Well, one thing was that he was, he was frightened and scared. We wanted to get away and so we let him go.
Q And where did he go?
A He went towards Jumping Bull's place.
Q And would you point out on the map the general direction from the tent city that he went and where you saw him last. Would you get up so that you can with the pointer touch the map and show where he was when he left and then where you saw him go.
A Right there (indicating).
MR. HULTMAN: Let the record show that he's poiining {1036} in the general vicinity to the south and east of the tent area.
Q (By Mr. Hultman) Then, Wish, would you show us, show the jury where it is he then walked as long as you saw him walk. With the pointer again, would you point out where it was that he went on that occasion as far as you could see him.
A I guess he came back towards Jumping Bull's place but that's as far as I saw him.
Q You saw him going towards Jumping Bull's, is that right?
A That's right.
Q All right.
Now why was it, if you know, that the van was loaded?
A Well, we were trying to get all our stuff together to get out of there, to move out.
Q And who was it, if anybody, or for what reason did you change your mind?
A I don't know that. Just came up I guess. Decided to change our mind. We just walked out.
Q And so then what next did you do as a group?
A We just walked south, towards south down the ravine, down the tree line and just kept walking. We walked for about maybe a couple hours, three hours, I don't Know. But it's quite awhile we walked. Stayed close to the creek and down the tree line.
Q Now during the course of the day, once you were in the tent area and you heard some shots, did you at any time during the rest of that day go anywhere from the tent city, from the tent {1037} area toward Jumping Bull's or up in the Jumping Bull area?
A You mean during the shooting?
Q Yes. Once you heard shots, from that point on.
A No.
Q So you don't know anything that took place up here in any way as to what the events were from that point on, is that right?
A That's right.
Q And am I correct from your testimony that all of this time you were in the wooded area?
MR. LOWE: Objection, Your Honor. It's either giving a summation or previous testimony or it's an outrageously leading question. In either event it's objectionable.
THE COURT: Sustained.
Q (By Mr. Hultman) Once the firing started, from that point until the next four days, were you at any time in the Jumping Bull area that's represented on this Government's Exhibit 71 except in the upper extreme right-hand corner of the exhibit in the wooded area?
A No.
Q Now would you tell us, Wish, where you then went. Did the group all go together except for little Jimmy?
A Yes.
Q And do you remember any of the things that any individuals were carrying? Did you carry anything with you when you left {1038} the tent area?
A Yes. I was carryiny two brown bags.
Q And why were you carrying two brown bags?
A Because there was no other people that could carry them.
Q Were they your bags?
A No.
Q What was in the bags, if you know?
A There was dynamite fuse.
Q And did anybody give you any directions that you were to carry those two particular bags?
A Yes. Bob told me to carry these so I said, "Okay."
Q And about how old is Bob Robideau, if you know, at that time.
A About 27.
***Q Was Leonard carrying anything?
A Yes. He was carryring an AR 15.
Q When you say "AR 15, did you know the words "AR 15" back at the time that we're now talking about?
A No.
Q Have you subsequently either by discussions with the FBI or somebody else learned that what it was you described was an AR 15, is that how you now know it?
A Yes.
Q I don't want you again to talk about things that you may have learned since to describe, only the things that have {1039} happened then, you understand?
A Yes.
Q Would you describe for the jury as you remember what that weapon looked liked, as you remember it then.
A Yes. It's a black, looked like a sub, semi-automatic rifle.
Q Had you seen a weapon of that kind in the tent area before this day?
A Yes.
Q Had you seen it on more than one occasion?
A Yes.
Q Who had you seen it with? Who had had it?
A Joe Stuntz had it, Leonard had it, Bob and Dino had it.
Q So that the weapon you're describing is not something that you had seen for the first time, you had seen it on a numher of occasions?
A That's right.
Q And whether it's an AR 15 or not, you know the weapon in terms of what it looked like because you had seen it many times before, is that right?
A Right.
Q I'm going to show you what's been marked as an exhibit here and ask you if this weapon fits that general description.
I'm going to show you what's baen marked as Government's Exhibit 34A and ask you whehner or not the weapon that you had {1040} previously seen in the area with Mr. Peltier and others and had seen earlier that day is one of a general description of the kind that I'm now holding in my hand?
A That's right.
Q Let's talk about the others individually that you said were with you at this time. Since Leonard had, or since Bob had indicated to you what you were to take, what did he take, if you remember?
A I think he had a --
Q Now I'm going to ask you again to describe to the jurv what it was without referring to it specifically in terms of something you may or may not have learned later. Do you uunderstand?
A Yeah.
He carried a rifle but at the time I don't know what type of a rifle.
Q He carried a rifle, is that right?
A Yes.
Q Do you remember, did he carry anything else?
A Yes. He carried two in fact. One, was carrying a shotgun, too.
Q So Bob had a rifle and a shotgun, is that correct?
A That's correct.
Q Now do you remember anything specific at that time about either of these two weapons that you saw at that time and you {1041} recall very distinctly from that time? Is there any objects of any kind with reference to either of those two which would identify either of those two in any way as to whom they may belong or who might be the owner?
A Well, the shotgun didn't belong to him and I guess he picked it up from the agents.
Q Well, now again --
MR. HULTAM: Your Honor, I would ask the response now --
Q (By Mr. Hultman) You weren't down at the scene so you don't know anything that you just now said to be a fact, isn't that true?
A No.
Q You weren't down there so you don't know that happened, is that right?
A That's right.
Q I want that very clear.
Now what I'm asking you is what is it that led you to a conclusion of the kind you just said: did you see anything on either of the two weapons?
A Yes. The shotgun. The end of the stock had a little green sticker that said, "Denver FBI."
Q Now I'm going to show you a weapon which has been marked Government's Exhibit 36A and I'm going to direct you to the testimony that you just gave. Can you tell the jury from what you saw and observed then, not anything you may have seen or {1042} heard or anything since then but was the shotgun that you're talking about that he had at that time one that resembled the shotgun that I have in my hand?
A Yes.
Q You don't know whether this is the shotgun or not, isn't that true?
A Yes.
Q But there was something about the one that you saw that looked generally like this that you identified at that time, and would you tell me again what it was and where it was on the weapon?
{1043}
A It was at the end of the stock handle.
Q And what was it again?
A A little green sticker.
Q A little green sticker on it, and what was on the sticker?
A Denver FBI.
Q Denver FBI, all right.
Had you ever seen this weapon or one that looked like it in the tent area or any time before that day during the day?
A No.
Q Do you remember whether or not Mr. Butler was carrying anything?
A Yeah. He was carrying a rifle, too.
Q All right. Do you remember whether or not anyone else was carrying any weapons of any kind? Did you have a weapon?
A No.
Q Did Norman, was Norman Charles carrying anything?
A Yeah. Norman Charles was carrying one. Norman Brown.
Q And what was he carrying?
A I don't know the type it was.
Q Do you remember, can you give the jury just a general description of what it was that he was carrying?
A It's a long rifle.
Q All right. Was there anybody else that was carrying any weapons of any kind?
A Yes. There was Norman Brown, Mike Anderson.
{1044}
Q And do you remember anything about the weapons that any of those men were carrying?
A No.
Q Now, were there any handguns or short guns of any kind that you observed during this time that welre now talking about?
A Yes, I did.
Q And would you tell the jury with reference to any individual what it was that you observed with reference to any handguns.
A I saw 302 handguns.
Q Who had 302 handguns?
A Bob, Dino, Leonard.
Q All right. Each of them had handguns, Bob, Dino and Leonard; is that right?
MR. LOWE: Objection, Your Honor. Mr. Hultman is misstating what this witness is stating. He's leading the witness. I state that simply as improper.
MR. HULTMAN: Let us approach the bench, Your Honor?
THE COURT: You may. (Whereupon, the following proceedings were had at the bench:
MR. HULTMAN: Your Honor, the reason I've asked to approach the bench is that I think it's very evident that this witness is partially hostile to the Government by his own testimony and his observations we've made thus far.
Secondly, it's obvious that he's afraid and I've been {1045} doing the very best I can in order to elicit fair and honest responses, and I will do my very best to continue it. I do want the Court to know that there are going to be times when I am going to have to maybe be leading to some extent in order to get testimony which is testimony of which has been already given, and under oath, and that's the things to which I'm only trying to get. And I think I have every --
MR. LOWE: Can you keep your voice down, please.
MR. HULTMAN: I think I have every right in the world in light of testimony that is a matter of transcript under oath of which we know that testimony has been given to do everything within the rules to secure true and honest and a full response to those particular questions, and that's the reason, Your Honor.
THE COURT: As I understand the objection in this case, and I may not understand it fully, but it is my impression that the objection was directed to your simply repeating the answer of the witness.
MR. HULTMAN: All right. Is counsel saying that in repeating the answer that that was not his answer just now?
THE COURT: It just places undue emphasis.
MR. HULTMAN: I will try to do my best.
MR. LOWE: I would like to respond. I don't think there's any showing that this witness is hostile. He may not be an FBI Agent and just giving back the party line, but he {1045} certainly is not shown to be hostils. He is responding, he may be a little nervous, but a lot of the witnesses that the Government has are nervous.
Until a clear showing of hostility, I don't think it's proper to ask lesding questions under oath.
THE COURT: I might --
MR. HULTMAN: Your Honor -- excuse me.
THE COURT: I might comment that I have no observed that this witness is particularly hostile. He may, I have observed, that he may be hesitant. That is why I permitted you to go into questioning the fact that he had answered the question under oath before. But at this point I have not observed any hostility.
MR. HULTMAN: All right, Your Honor.
Your Honor, this is another matter that I want to bring to the Court's attention on the record now, and this is the reason why, among others that I have attempted to, at least have four seats immediately behind counsel continuously, Your Honor. And I want to put it on the record that I have noted different signs and various things that have gone on in the courtroom when a witness of this kind is on the stand. And I would request of the Court that the Court make a note of anything that the Court might see during the course of the proceedings here, because it's very obvious as to where individuals are sitting in the room, what the interest of those {1047} individuals are, and to which they have a right. And I'm not objecting to that in any way, but the point that does concern me is that in no way does, can this witness be put in an atmosphere where he by any way of intimidation of any kind by the actions of anyone in the courtroom.
Now, specifically use the illustration, yesterday I sat and watched myself Dino Butler make specific signs as I asked the question to witnesses. I looked at him as I asked the question and that's just an illustration of which I'm referring and that's what I'm referring to, Your Honor, when I say it's extremely difficult for counsel at a time or another to be placed in a posture where I do have to maybe be more leading than normally would be the case. But I do state to the Court that I'm trying in every way, and I will do the very best I can, not to repeat or not to be leading. I don't think that any of the questions at this particular point have been, or the responses, anything. But one what counsel knows is the ultimate response is there, is a matter of record under oath already of what that response is.
MR. LOWE: I don't understand what he just said. I'm not even going to try to respond to that. It made no sense whatsoever.
If he has a complaint about somebody in the audience he certainly has proper remedies he can take to that. We {1048} certainly have no control over the people in the audience.
THE COURT: I will state that it was reported to that to me that some court personnel, that they observed some individuals making signs when the witness was testifying yesterday. I did not observe it, I have not done anything about it. If I do observe that, that person will be asked to discontinue. And if he doesn't discontinue, then of course he will not be permitted in the courtroom.
MR. LOWE: I take no issue to that. I represent to the Court that I did not know anything about it.
MR. HULTMAN: And I want the record made very clear by my remarks, I in no way directed that in any way to counsel or anybody directly associated with counsel. That I want made very clear.
MR. LOWE: That does not give authorization for proper questioning of witnesses.
THE COURT: That is correct.
MR. HULTMAN: I understand.
Your Honor, I wonder what time we're going to take recess, Your Honor.
THE COURT: In about five minutes.
MR. HULTMAN: Okay.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
Q (By Mr. Hultman) Now, when you left the tent area would {1049} you tell us, Mr. Draper, what it is that happened and where it is you went, and if you'll take it in a sequence as you best remember it did happen. What direction did you go after you left the tent area itself?
A We went south. Like I told you we walked for a while, maybe a couple of miles, couple hours, got to the road again.
Q Now, was there anything, in terms of a route that you followed or reason that you went the direction that you went?
A No. We just went along the creek, the creek took us to the road. When we got tothe road we got -- we found a culvert. We went through the culvert to avoid the police cars and all the cars going above. We all went through the culvert.
Q Now, where would the culvert be located just in a general sense from the area of the Jumping Bulls' that is represented by Government's Exhibit 71? Would you just turn around and maybe indicate to the jury in any way you can what direction it would be. Just with the use of the pointer, point out a direction.
A (Indicating.)
Q All right. Now, you pointed out a point. Would you now point out for me, please,the direction then from that point that you took in terms of going along the creek so that the jury can approximate the direction that you then went.
A There's a creek here (indicating). We went this way and stayed along the creek until we got to the road.
{1050}
Q All right. Now, when you crossed under the culvert here, was anybody with you specifically at that time?
A I was with Norman Charles and Mike Anderson. And the other group has already went through the culvert and they were already on the other side of the road.
Q All right. And did you catch up with them at any time?
A Yes.
Q And where was that?
A They waited there for us, and after a while we just got out of the culvert and started running toward the hills to the --
Q All right. While you were running as a group toward the hill did anything happen?
A Yes. The BIA officers spotted us and they started firing. We ran quite a ways and they kept firing until some of our boys fired back.
Q Do you remember anybody specifically that fired back?
A No.
Q All right. And where did you go then from that point?
A We ran up the hill until we got to the pine ridges there. until we made it to the top, and by the time we got there it was sometime in the evening, it was close to nightfall.
Q And what if anything happened at that time?
A We stayed up in the hills for a while until nightfall came. We started walking at night. Stayed in the hills.
Q And did anything happen at a later time that evening other {1051} than walking?
A Yes. There was two riders that came to us, and I don't know what happened then. I think Leonard or somebody talked with the riders, but they went back and we kept walking on.
Q Did you know who the riders were at all?
A Yeah. One was Leon Eagle. And I don't know the other one. There was only two riders.
Q All right. And then what did you do next then?
A We just kept walking. By this time it was night and we walked for about,I'd say, two, three hours, couple of miles, until we got to another place and got back to the highway somehow.
Another rider came up to us and took us back acroas the road. Went towards a man by the name of Noah Wounded's place. This is back in the hills.
Q Do you know who the rider was that took you to Noah Wounded's?
A Ted Lame.
Q And was there anybody at Noah Wounded's when you get to Noah Wounded's?
A Yes. There was Noah himself. He was living all alone.
Q And would you describe Mr. Wounded for us?
A Yeah. He looked like an old man in his sixties. Grey hair.
Q And what if anything did you do there?
{1052}
A We stayed there that night. Rested up and he invited us in.
Q All right.
A When we got there.
THE COURT: Court will recess until 11:25.
(Recess taken.)
{1053}
(Recess taken.)
THE COURT: The jury may be brought back in.
(Whereupon, at 11:26 o'clock, a.m., the jury returned to the courtroom; and the following further proceedings were had:)
MR. HULTMAN: May it please the Court?
THE COURT: You may proceed.
MR. HULTMAN: Your Honor, at this time the Defendant and the Government have agreed to a stipulation, in order that a witness not be called just for this purpose, and the stipulation is this:
That Exhibit No. 15 which has now been entered into evidence was found on June 27, 1975, by Special Agent Ed Kelly in Special Agent Ronald A. Williams' FBI vehicle which was located near the Tent City.
THE COURT: And so the stipulation may have some meaning Exhibit 15 is that piece of paper --
MR. HULTMAN: (Interrupting) That is the piece of paper, your Honor, that we have been referring to that has various, three names on it and so forth.
MR. TAIKEFF: We have so stipulated, your Honor.
THE COURT: Very well, the stipulation is received.
MR. HULTMAN: Now, would the reporter read back to me the last question -- no problem.
Q (By Mr. Hultman) I believe we were at a point where you {1054} were at Noah Wounded's, is that correct?
A Yes.
Q I believe you described him as being an old man, is that right?
A That's right.
Q Now, what, if anything -- would you tell us what night, if you know, this was that you were at Noah Wounded's?
A The night of the 26th.
Q All right. This is the night of the day on which we are talking about, is that right?
A That's right.
Q Now, did you stay there all evening there?
A Yes.
Q And what, if anything, did you do the next day?
A Well, we stayed there all day, and at nightfall we started walking.
Q All right, and did you have any basis for any direction to go, anything to help you that night?
A Well, Noah Wounded drew us a map which way to go. Our destination was Manderson, and we took off for Manderson.
Q And who was it that had the map then?
A It was Bob.
Q Al] right, and what did you do from that point on?
A Well, we walked on towards Manderson.
Q Did anybody else have the map during the course of that {1055} evening?
A No.
Q I would direct your attention to an earlier time when you were asked the very same question under oath as to who had the map. Do you remember being asked that question at some other time?
A Yes.
Q And do you remember your response at that time as being Peltier?
A No.
Q All right. You wouldn't -- you don't dispute that you may have given that response at another time?
A Maybe Peltier carried the map some of the way, I don't recall, but it was given to Bob.
Q All right. So that as you recall it and as you best recall it, here in this courtroom in answering truthfully it is the response you have given here today, is that right?
A That's right.
Q All right. Now, where did you go then that night?
A Well, we were headed to a girl's house in Manderson, instead we ended up -- we were going towards Pine Ridge; and we walked all night and no sign of Manderson; and so the next morning, daybreak, we decided to stay in the hills again under some brushes, and we stayed there all day until nightfall again, and we walked again.
{1056}
Q All right. Now, the night that you were walking to Morris Wounded's house, did you ever overhear any conversation between any of your group?
A Yes, I did.
Q And would you tell us who the people were?
A It was Dino, Bob and Leonard.
Q Al] right, and would you tell the jury what, if anything, you heard at that time?
A Well, they said something about a car, an agent's car; but I don't recall, and they said something about moving him around. I don't really remember.
Q Do you remember who specifically said anything at that time?
A No. Could be -- but it was ciming from the direction where Leonard, Dino and Bob was walking.
Q If I were to direct your attention to an earlier time, closer in time to the event itself, and you were asked this question --
MR. LOWE: (Interrupting) May we have a side bar, your Honor?
THE COURT: You may.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE: I think, your Honor, that this witness has answered this question fully and fairly. I do not think it is proper for counsel to read from prior transcript to {1057} this witness for the purpose of impeaching that information before the jury.
I think if your Honor wants to have a hearing outside of the presence of the jury in which there is some inquiry to refresh his recollection from earlier testimony, I would have no objection.
Counsel knows very well what he is doing. He keeps getting testimony which was impeached by cross examination before the jury, and I would ask further that if counsel is going to refer to a transcript that he identify the transcript by date and page number so we can follow along with it.
MR. HULTMAN: Your Honor, I will do that, and I will do it right now; and I am sure counsel --
THE COURT: (Interrupting) Again I think his objection is to your reading the question and answer. I think perhaps what you should do is show it to him and ask him to refresh his recollection.
MR. HULTMAN: I will be glad to follow that procedure.
THE COURT: Show it to him and ask him to read it to himself, refreshing his recollection. Have him establish that he was in fact asked that question and that he did give an answer.
MR. HULTMAN: I was trying to save some time, and I will, your Honor.
{1058}
I want the record to show that the question I am referring to is found at Page 938 of the transcript of the last trial. It is a question and a response of this witness and the question is:
Now, during this time that you were walking through the night, can you tell me whether or not there was any conversaticn about what happened to the agents?
The answer: The night we were talking to Morris Wounded's house, I heard Dino and Bob and Leonard talking about the agents. Leonard said something like this, "I helped you move them around the back so you could shoot them" Maybe he was talking about Butler or Bob. I don't know who he was talking about that night.
That is the response to which I am directing my inquiry, your Honor, and I will follow the procedure the Court has indicated.
MR. LOWE: It is just very difficult when you say "previous proceeding" without identifying the transcript date or page number, tc pick up where you are.
MR. HULTMAN: I will do so.
THE COURT: Very well.
(Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
Q (By Mr. Hultman) Mr. Draper, I am going to show you a part of a transcript, Page 938, of a previous transcript at a {1059} previous time when you were under oath, which I will now do, and ask you to look at it and ask whether or not this in any way refreshes your recollection as to having been asked a question and having made a response under oath?
A (Examining).
Q Does that refresh your recollection?
A Yes.
Q Do you recall having been asked that question and then giving a response?
A Um-hum.
Q Now, I would ask you the same question and ask you whether or not you can respond more fully with your recollection refreshed?
A I can't remember that much.
Q Well, you are saying that you don't remember back at the time this statement --
A (Interrupting) Yes.
Q You are not in any way saying that what you said at that time was not a correct statement of your memory to the best of your abi]ity at that time?
A Well, it was something like that.
MR. HULTMAN: All right, Your Honor, might we approach the bench again?
THE COURT: You may.
(Whereupon, the following proceedings were had at the {1060} bench:)
MR. HULTMAN: Your Honor. I am now in a posture -- that's the reason I have come to the bench -- that I think it is appropriate that I be able to read that question and that response.
MR. LOWE: We object, your Honor. This witness is testifying today, what he is testifiying to is his recoIlection, the best he knows it. He said it might have been something like that. That's different. He has not said that was his correct testimony, and the fact is during cross examination he changed it substantially last year.
MR. HULTMAN: I don't agree with that at all. Your Honor, I think the record will show that this is a fair and accurate statement of what he said and is exactly what he said at that time.
I think it is proper for me now, as counsel has done many times earlier, to continue to use a transcript and continue to do, properly to read the exact response itself. I have a right to do it from the standpoint of impeachment. I have the right to show he is a hostile witness. This is a straight factual statement, and without -- under Rule 607, and that's what I would now propose, your Honor. I do -- I will not propose anything except out of the presence of the jury before I would do anything. That's why I asked {1061} for a side bar.
MR. LOWE: We object to it, Your Honor.
THE COURT: Well, under the new Rules of Evidence, you are permitted to impeach your own witness, and he does recall having given that testimony.
MR. HULTMAN: That is correct.
THE COURT: So I am going to allow it to be done.
MR. LOWE: The record has our objection.
THE COURT: Yes, your objection is on the record.
(Whereupon, the following proccedings were had in the courtroom in the presence and hearing of the jury:)
Q (By Mr. Hultman) Mr. Draper, in response to the question at the time in which we have been referring, is it not a fact that your response was:
The night we were walking to Morris Wounded's house I heard Dino and Bob and Leonard talking about the agents. Leonard said something like "I helped you move them around the back so you could shoot them." Maybe he was talking about Butler or Bob. I don't know who he was talking about that night.
End of response.
Do you remember making that response?
A Yes.
Q Was that response at that time to the best of your knowledge a true response on your part?
{1062}
A No.
Q It was not.
What about it was untruthful on your part?
A I can't remember. I just don't place it.
Q Maybe I am not communicating. Are you are saying that here and now you don't remember, is that what you are saying?
A I remember it, but I don't remember what was really said, is what I am trying to say.
Q Let's start with here in the courtroom at this moment. Do you remember on the night specifically what was said in that conversation right here and now?
A No.
Q You do remember there was a conversation?
THE COURT: Counsel approach the bench.
(Whereupon, the fo]lowing proceedings were had at the bench:)
THE COURT: It has just been called to my attention by the Clerk that that large gentleman in the green shirt has been seen signaling.
MR. HULTMAN: That is Mr. Peters.
THE COURT: After the Clerk called it to my attention, I watched it and I observed, after the question was made, he did make a signal.
MR. LOWE: Could we take this up out of the presence of the jury? I am not sure --
{1063}
MR. HULTMAN: (Interrupting) We ought to do it now before I ask any more.
THE COURT: This gentleman is going to have to refrain from any further activity of that kind or he is going to be ejected from the courtroom and not permitted to return.
MR. LOWE: Judge, I do not know who -- first of all, I don't know who you are referring to. I don't have any control over him.
THE COURT: I know.
MR. LOWE: You are directing the comment to me. I don't want the jury to get the wrong impression.
THE COURT: I suppose I am directing it to you because obviously he is trying to help your side of the case. That's what you call guilt by association.
MR. LOWE: I think is right.
What I am wondering is, I don't want anything like that said in the presence of the jury.
THE COURT: I appreciate that.
MR. LOWE: If you would like to excuse the jury perhaps, you know, for lunch or something, but I did not see it. I don't know anything about it.
MR. HULTMAN: Let me on the record state: This event has been observed a number of times by counsel at the counsel table and with this specific individual this {1064} morning. If my knowledge is correct --
THE COURT: (Interrupting) Who is it?
MR. HULTMAN: That's what I am now about to say. It is a man by the name of Ernie Peters.
THE COURT: The big gentleman in the green shirt?
MR. HULTMAN: That's correct, and he, your Honor, I think it can be shown, is one who may have a very personal interest in this particular case; and so I think it is a matter that we ought to take up, and we saw -- because now this is the second time that counsel at the table has observed it. First I personally observed it with Mr. Butler yesterday and on more than one occasion. Secondly now it was observed -- by Mr. Peters.
This, your Honor, I might indicate is something -- and again I want the record to show clearly that it has no bearing on counsel or any reflection on counsel; but this same type of activity, I can say, has happened with witnesses in other trials and that's the thing that concerns me; and I think it ought to be resolved without the jury in any way knowing, as counsel has said.
THE COURT: Well, yes, I am going to ask the jury to leave the courtroom at this time; and I am not going to let anybody proceed with this witness until we get this matter resolved.
MR. SIKMA: Your Honor, I might state further, I have {1065} turned around on a number of occasions while we were at the bench, he was doing the same thing; and the man to his right was making the same kind of motions.
MR. HULTMAN: This is not to infer, your Honor, and I want to show on the record that the Government is not making any showing that there is a relationship between the parties, but that it is an act being committed which could have impact on the witness. That's the point I want to make.
MR. TAIKEFF: I am sure that Mr. Hultman at the very least will appreciate what I am about to say. Mr. Engelstein has suggested that if, indeed, there are signals, Mr. Engelstein knows he is sending him the wrong signals.
MR. LOWE: Judge, I don't know when you would plan to recess. We are very close to the noon hour. Would you be excusing the jury and taking the matter up and let the noon recess begin early?
THE COURT: I intend to bring the jury back again.
{1066}
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
THE COURT: Members of the jury, as I've mentioned to you before prior, there are inconveniences caused to you because of matters that must be taken up out of your presence and this is not just a rule of the Court, it is the requirement of the Law. So we are faced with an interruption of this kind right now.
I am going to continue the trial until 12:30 before we recess for the noon but there is a matter which I have to take up out of the presence of the jury at this time and so I am going to ask that you retire to your jury lounge for just a few moments.
(Whereupon, the following proceedings were had in the courtroom without the hearing and presence of the jury:)
THE COURT: Before the Court commenced this morning it was reported to me that yesterday afternoon while Mr. Anderson was testifying there were certain individuals in the audience that were signaling to the witness. I had not observed that because I was not paying any attention to the audience, inasmuch as everything had been quiet, relatively quiet and uneventful. I instructed court personnel to observe today and to inform me if any additional signal was detected. I have just been informed that a gentleman in the audience was {1067} singaling. After I was informed I watched that gentleman and I did observe signaling to the witness. I'm not going to identify the gentleman. He knows who he is. I am simply stating that that will not be permitted. If it is continued, if it is observed, the person who has been observed indulging in the tactics of that kind will be removed from the courtroom and will not be permitted to again re-enter the courtroom during this trial.
I am not taking any action at this time because I want there to be no misunderstanding as to the position of the Court and as to the results or consequences of any continued activity of that kind.
MR. ELLISON: Your Honor, I would like to make one statement for the record. Several persons have pointed out to me and other members of the defense team, while witnesses on the stand are undergoing cross-examination, attorneys for the government have been seen to either shaking their heads or shaking no; shaking their heads yes when they like the response, shaking their heads no when they don't like responses. If the Court is going to watch the spectators, I would also appreciate if the Court would watch Counsel.
THE COURT: The Court has watched Counsel for both sides. The Court has observed some expressions somewhat similar to what you have referred to. The Court has also {1068} observed, particularly one member of the defense counsel who has made some very obvious indications of extreme displeasure when the Court has ruled on a certain matter and I would ask Counsel for both sides to conduct themselves professionally and to refrain from any indications of pleasure or displeasure with the testimony of a witness or the ruling of the Court.
The jury may be brought back in.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
THE COURT: You may proceed.
Q (By Mr. Hultman) Mr. Draper, where did you go that evening then?
A We went to Pine Ridge and when we got to Pine Ridge we were looking right over Pine Ridge and somebody realized that this was a mess and from there we went to a man's house by the name of Lawrence Wounded which is out in the country about a mile north of Pine Ridge. We stayed there that night. They invited us. They welcomed us.
Q Now who was there at that home?
A Lawrence Wounded's wife.
Q Was there anyone else that you are --
A No. I don't recall anybody.
A And about what age is she: a young woman, a middle aged woman or an elderly woman, do you recall?
{1069}
A Between elderly and middle aged.
Q Now what if anything did you do next?
A We stayed there all the next day and the next evening of the next day and went to Porcupine. We stayed at a man's by the name of Oscar Bear Runner. We stayed there four or five nights. Then from there that's the last time I seen the group.
Q And was there anybody else there at Oscar Bear Runner's?
A Yes. The family. The family was there.
Q Could you tell us who by way of family do you mean?
A He has three sons and his wife.
Q Do you remember any of the sons' names?
A Dennis and Don and Edgar.
Q Now how did you leave the Bear Runner's?
A Well, I met -- after we went to Bear Runner's, people came to Bear Runner's and one of those people that came there was a woman by the name of Evelyn Bordeau, that's Jimm's mother. From there I met with her and some older people and they told me about how the government and they have --
Q I'm not interested in what somebody else may have told you at this particular point. I'm interested in what you saw and observed.
Did anybody leave Bear Runner's with you when you left Bear Runner's?
A Yes.
{1070}
Q Who left Bear Runner's with you?
A I left with Edgar and his wife and three other males. I don't remember and Evelyn and Jimmy.
Q All right.
How did you get transportation wise to Bear Runner's, if you recall?
A Well, from Lawrence Wounded's a woman came to his house, it was Lou Lame and her husband.
Q Who went with you?
A Well, it was a car. I went with Leonard, Dino and Bob. There was two trips to Porcupine that night.
Q The first, did you go on the first trip or second trip?
A No. The second.
Q And in the second trip who was it that went in the second trip, who were all the people?
A There was Norman, Norman Charles and Norman Brown, Mike Anderson and Jeannie, Neelock and Lynn.
Q And are they in age younger than the group that you went with?
A Yes.
Q Do you know approximately how old Dino Butler was at this time?
A About 30.
Q Do you know approximately how old Mr. Peltier was at this time?
{1071}
A About the same.
Q Do you know approximately how old Mr. Robideau was? Maybe I've asked you that question earlier.
A 27, 28.
Q And you went with those three persons, is that right?
A That's right.
Q Now it's my understanding then from your testimony that, how was it that you then left from Bear Runner's?
A Well, we left with Edgar's station wagon. I spent the night in Porcupine there, the town, some houses. Edgar's mother's place. The next day --
Q Did anybody leave with you when you left?
A Yes.
Q Who was it that left with you?
A Evelyn, Jimmy, Edgar and his wife and three other guys.
Q Do you know who the three other guys were?
A No.
Q All right.
Did any other of the members of you group that had come from the tent city area during the days that you're referred to beginning on the 26th of June, 1975, did any of them leave before you did?
A Yes. They left before us about -- let me see. We left on the same evening but they left a couple hours before. They went towards Rose Bud.
{1972}
Q Would you tell us who left before you did?
A There was Leonard, Neelock, Dino, Jeannie and Mike, Norman and the other Norman Charles. They went towards Rose Bud in two cars.
Q Did you see them after that then?
A No.
Q In the immediate future?
A No.
Q Then where did you go?
A I went to porcupine and then from Porcupine the next morning I went to Rapid City with Evelyn Bordeau and Jimmy and some more people and those three persons I met with and I stayed in Rapid City one night there. Then we left for Canada the next morning and I stayed in Canada for about five months until there came a time, No use of running," so I just came home from Canada. It was in the winter, about December, and I come home to Arizona. As soon as I got back in the FBI, police officers were waiting for me.
Q Now while you were in Canada, did you use any other name than the name Wish or Draper?
A Yes. Yeah. I used Wish and I used David Many Horse.
Q What was the reason that you did?
A Because I was pretty scared and I didn't want to ever let nobody know I'm here.
Q Are you scared at this very moment?
{1073}
A No.
Q When you went by automobile with this woman from Wounded's to Bear Runner's, what did you do if anything with the guns in the bags and the things that you had with you at that time? The whole group now I'm referring to.
A Well, we put it in the trunk of the car, of the car and traveled like that.
Q Now did you leave when you left Bear Runner's with any of the objects that you described that various people carried from the tent area?
A No.
Q Did you keep the bags that you referred to with the things that were in it?
A No.
Q Who took those?
A Well, the group took that and went on to Rose Bud.
Q And was that true with all of the rest of the weapons?
A Yes.
Q And who was it that was in that group?
A There was Leonard, Dino and Neelock, Mike, Norman Charles and Norman Brown and Jeannie.
Q Now have you, Mr. Draper, in any way been given any promises of any kind by anyone either in law enforcement or by myself or anybody in the U.S. Attorney's office, anyone? Have you been given anything in response for coming to testify {1074} at this time or at any time?
A No.
Q Has something happened that you might in your own mind conclude because you could possibly be a witness that may or might not have been done?
A Yes.
Q There were some charges at one time or another. There were some questions asked of you at a previous time under oath about some possible charges of some kind, is that correct?
A Yes.
Q And have you ever come to trial as far as any of those charges in any way?
A No.
Q Is there any relationship in any way as far as you know between any of those other events and your testimony here in this courtroom today or in any other courtroom at any other time as far as you are concerned?
A No.
Q So is it fair for me to conclude --
MR. LOWE: Objection, Your Honor. Obviously it's a leading question coming up. I don't see how it can be anything else.
MR. HULTMAN: If you wait until I give the question --
{1075}
MR. LOWE: I don't have to wait for the question. That will tell the witness what he wants him to say.
MR. HULTMAN: I just want to ask him if to the best of his ability he has told the truth in the courtroom.
MR. LOWE: It didn't sound like you were starting that question.
MR. HULTMAN: That's the question I intended to ask.
THE COURT: The question will be permitted.
Q (By Mr. Hultman) Have you to the best of your ability told the truth as you now here in the courtroom today best remember the events?
A Yes.
Q And is that without any promises or any inducements or any threats on the part of anybody in any way having to do with the government?
A No. No threats. No promises.
MR. HULTMAN: I have no further questions, Your Honor.
MR. LOWE: May I have just a moment, Your Honor?
THE COURT: Yes.

TRIAL TRANSCRIPT