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

BY MR. TAIKEFF:  CROSS-EXAMINATION
 Q  Good morning, Mr. Coward.
 A  Morning, sir.
 Q  Mr. Coward, in June of 1975 where was your permanent assignment, your regular assignment?
 A  Rapid City, South Dakota.
 Q  And as such where would you say you spent most of your time?
 A  On the Pine Ridge Indian Reservation.
 Q  Would it be fair to say that essentially all of your working time was either on the reservation or in connection with matters that arose on the reservation?
 A  That's correct, sir.
 Q  How many agents were there like you functioning in that capacity at or about that time?
 A  There were 12 of us assigned to the resident agency at Rapid City, South Dakota.
 Q  And did that account for all the agents who were working in a full time or near full time capacity on the reservation at that time?
 A  On the Pine Ridge Indian Reservation?
 Q  Yes, sir.
 A  Yes, sir.
 Q  Were there other reservations within the jurisdiction of your office?
 A  Yes, sir.
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 Q  And were there other agents assigned to those reservations?
 A  Yes, sir.
 Q  Approximately how many?
 A  Well, I believe there was approximately four at that time that were assigned to Pierre, South Dakota resident agency.
 Q  And where were they working?
 A  They would work the Rose Bud Indian Reservation.
 Q  That is in some sense or another adjacent to the Pine Ridge, is it not?
 A  It's contiguous; yes.
 Q  And were there any outside agents, that is to say agents normally or permanently assigned to other offices who were on temporary duty?
 A  Yes, sir.
 Q  How many were there?
 A  You're speaking of June of '75?
 Q  In the spring of '75 before this incident in particular.
 A  Okay. Occasionally people would come in and out and give us a hand; yes.
 Q  Could you give us some sort of an average figure representing in the spring of 1975 the number of FBI agents who were employed essentially full time on those two reservations in South Dakota?
A  There are approximately 16 men employed full time working {1220} out of those two particular offices.
 Q  And any people on temporary assignment in addition to those?
 A  Well, that was sporadic. When the need arose we would ask for additional help.
 Q  And what was your actual experience in that regard? How often and how many?
 A  Well, several times we'd ask for help and received it.
 Q  In what numbers of people:  two people, ten people, twenty people?
 A  The most at any one time would be six people and that would have been the week preceding the day that the two agents were killed.
 Q  Do you know the exact or approximate combined population of those two reservations?
 A  I do know that Pine Ridge Indian Reservation at that particular time was approximately 12,000 people.
 Q  Do you have any idea what the comparable figure was for Rose Bud?
 A  I don't. But I believe it was smaller.
 Q  Based on your own knowledge and experience, if you possess such, would you say that the number of agents per thousand residents was comparable to or substantially higher than most parts of the United States?
 A  I don't quite understand what you mean.
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 Q  Well, let's say in New York City there are about eight million people and maybe 100 agents. On the Pine Ridge and Rose Bud there may have been 20,000 people and 25 agents. Do you have any idea whether that was in the FBI's point of view a high crime area that required a higher ratio of agents to people than a place like New York City?
 A  That's an administrative decision as to how many people are required in what particular location.
 Q  You don't have any information on the subject for comparison purposes, I gather.
 A  The only thing I can tell you is that years ago I think as far as police records were that you had to have 1.1 or 1.3 percent policemen per thousand.
 Q  How long did you work the reservation, how long were you assigned there?
 A  I came there during Wounded Knee in 1973.
 Q  And from that time until June of 1975 did you find that was a relatively high crime area?
 A  My opinion?
 Q  Yes, sir.
 A  Yes.
 Q  And in the main would you say that those crimes were crimes of violence as opposed to white collar crimes or other such crimes?
 A  Well, that was the particular crimes that our responsibility, {1222} that was my responsibility; yes.
 Q  We're talking now about assaults, murders, things of that sort?
 A  Yes, sir.
 Q  Are you or have you ever been a member of a S.W.A.T team?
 A  I am.
 Q  Would you briefly tell the court and jury what special function that is, what that means.
 MR. SIKMA:  Your Honor, I'd object to this as totally irrelevant to the case.
 THE COURT:  What is the relevancy?
 MR. TAIKEFF:  The relevancy, Your Honor, is to give the jury some idea of what life is really like on the reservation so they won't get some notion it's like living in Fargo or Moorhead.
 MR. SIKMA:  Your Honor, I would submit that there is still no relevancy shown. There are S.W.A.T. teams all over the United States.
 MR. TAIKEFF:  I would call to Your Honor's attention the fact there has been considerable evidence concerning the possession of weapons by the defendant and others whom he was living with and I think Your Honor would recognize that for those of us who live in more conventional environments that may have certain implications and I think the defendant should have an opportunity to show why such a thing occurred.
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 THE COURT:  This is a matter to be resolved by the Court if the defense determines to offer evidence in the case.
 MR. TAIKEFF:  I'm willing to adopt the witness for that purpose as my own witness if Your Honor chooses to allow.
 THE COURT:  Then it's out of order because the cross- examination is limited to the subject of the direct examination.
 MR. TAIKEFF:  That's conventionally true, but it's within the Court's discretion to allow the other side to adopt the witness as its own in order to permit the trial to flow more smoothly and not require the witness to wait around for a week or two. I would abide by whatever Your Honor's suggestion is.
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 MR. SIKMA:  Your Honor, I would nonetheless admit that whether it's counsel's witness or any other witness that it's, it remains totally irrelevant to the subject at hand. It does not, this agent's training or other agent's training, does not develop a legal right or obligation on the part of those persons in the area where these agents are working to have an opportunity or a right to carry an exceptional or additional number of firearms.
 THE COURT:  On the objection of counsel that it is irrelevant, the witness will be, the cross-examination will be limited to the scope of the direct examination.
 MR. TAIKEFF:  Yes, Your Honor.
 Q  (By Mr. Taikeff) Were you one of those who participated in the investigation which followed the events of June 26, 1975?
 A  Yes, sir, I was.
 Q  And during the six months that followed the incident, that is to say for the balance of the year 1975, do you know how any special agents of the FBI were involved in that investigation?
 MR. SIKMA:  Your Honor, once again I would object as totally irrelevant.
 MR. TAIKEFF:  Now, Your Honor --
 MR. SIKMA:  Question of guilt or innocence of the defendant.
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 MR. TAIKEFF:  It is not in any way irrelevant because it is crucial with respect to the role played by this particular witness. And I will develop that. This is really a foundation question for other matters to be gone into on cross-examination.
 THE COURT:  I will allow you to proceed.
 MR. TAIKEFF:  Thank you, Your Honor.
 Q  (By Mr. Taikeff) Do you recall the question, sir?
 A  Would you repeat it, please.
 Q  I'll restate it if I can. I asked you in the latter part of 1975 after the incident if you had any knowledge as to how many special agents of the FBI were involved in the investigation of these deaths?
 A  No, sir, I do not.
 Q  How many agents did you work, or come in contact with in connection with that investigation?
 A  Well, I worked with the members of the Rapid City resident agency.
 Q  Was Agent Adams one of those people?
 A  Yes, sir.
 Q  Was Agent Hughes one of those people?
 A  Yes, sir.
 Q  Who were the other people? Agent Price?
 MR. SIKMA:  Your Honor, I would object. The question is too broad.
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 MR. TAIKEFF:  It couldn't, Your Honor, have an answer that exceeded more than nine names. According to the testimony there are only twelve agents assigned.
 THE COURT:  You may proceed.
 MR. TAIKEFF:  Thank you, Your Honor.
 Q  (By Mr. Taikeff) The names of the other people you worked with on this case?
 A  Well, there was Agent Price, Agent Skelly, Agent McCarty, Agent Wiley, Agent O'Clock. Those were some of the members of the RA that I worked with.
 Q  How about Agent Waring?
 A  Did I work with them personally?
 Q  Yes.
 A  Yes, I had. Yes.
 Q  And he was working on this case, was he not?
 A  Yes, sir, he was.
 Q  And did you have occasion from time to time to confer with these people that you've named?
 A  Yes, sir.
 Q  About the facts of the case?
 A  Yes, sir.
 Q  Did you read each other's reports, 302's?
 A  I did not.
 Q  Do you know of your own personal knowledge whether there as any exchange of information by reading each other's 302's?
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 A  Personally? No.
 Q  Have any conferences in groups of three or four?
 A  Well, we had several conferences, yes.
 Q  How often, let's say during the month following the incident?
 A  We had conferences every day.
 Q  And on the average, I'm not looking for you to be precise, just give us an idea, how much time did you spend with each other in conference about what was being developed concerning the case?
 A  Well, it was our practice to have one in the morning and one in the evening so we could just keep up, you know, everything together.
 Q  Now, I'm not asking you for details, just a general statement. Did you discuss from time to time a developing theory of what happened?
 A  Well, we were trying to determine, you know, what happened. But I wouldn't call it a theory.
 Q  Well, I gather that you collected facts and as time went you collected more and more facts; isn't that true?
 A  That's correct.
 Q  And there came a time early in the investigation, didn't there, when what information you had gave you some idea of what may have taken place that day?
 A  Well, that's true, yes.
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 Q  Do you object to my referring to that as a theory of that moment, at that moment as to what had occurred? Can we use that as a shorthand?
 A  Yes, we can.
 Q  Okay. Now, was there an agent or two or more who were, if not in an official capacity, at least by virtue of what they were doing, in charge of the investigation other than the agent ho was in charge of the entire office?
 A  Well, there were people who, you know, were our bosses, yes.
 Q  Okay. But in terms of a subboss, was there some person or were there some persons who were the key agents investigating this case?
 A  Well, there was a man who was assigned the case.
 Q  Who was that?
 A  Dean Hughes.
 Q  So nominally he was the head agent on this case?
 A  Yes.
 Q  Was he one of those people with whom you met from time to time?
 A  Yes, sir.
 Q  Who were the agents who were present most of the time in those morning and evening meetings?
 A  Well, of course those who were there in town that weren't doing other things. But everybody who was there working on the {1229} case was there every day.
 Q  Was Adams frequently there?
 A  Yes, he was.
 Q  Was Waring frequently there?
 A  Yes, sir.
 Q  Was Skelly frequently there?
 A  Yes, sir.
 MR. TAIKEFF:  Excuse me one moment, please.
 Q  (By Mr. Taikeff) Did you have any personal relationship with either of the two agents who died?
 A  Yes, I did.
 Q  With one of them or both of them?
 A  Both of them.
 Q  Did you consider them to be your friends as well as your professional colleagues?
 A  Yes, sir, I did.
 Q  So I assume then that you viewed this as both a case you were working on and a matter of personal concern?
 A  Yes, sir.
 Q  Is it fair to say that you were quite angry about the loss of your colleagues and friends?
 A  I don't think you could say I was angry.
 Q  It was worse than that?
 A  Well, I was upset at the loss.
 Q  Severely upset?
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 A  I wouldn't say severely.
 Q  Intent upon cracking or solving this case more than most?
 A  No. I wouldn't put it that way.
 Q  You approached this case with the same coolness and objectivity with which you approach any of your cases, is that what you are saying?
 A  I tried to do that, yes, sir.
 Q  You tried to make sure that your personal feelings didn't get involved in your work in any way, is that --
 A  That's correct.
 Q  Did you ever before in your career as an FBI agent investigate the alleged murder of a friend and colleague?
 A  I participated.
 Q  Someone you knew?
 A  Yes, sir.
 Q  How much of your working time during the month following June 26th did you devote to this case?
 A  Sometimes better than twelve hours a day.
 Q  That's more than a hundred per cent of your ordinary working time, supposed working time I assume. You're supposed work eight hours a day, but on your job you usually end up working more?
 A  I did this particular case.
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 Q  (By Mr Taikeff) I am handing you Defendant's Exhibits 77-A, 78-A and 79-A which are not in evidence, and marked for identification, so they would be withheld from the jury's view, and ask if you have ever seen those before?
 A  These particular copies?
 Q  Or anything that was essentially identical to it or them.
 A  I have seen -- this is a copy, it appears 77-A, I have seen that; 78-A looks familiar, and 79-A looks familiar too.
 Q  Did those prepare those or something just like it?
 A  I prepared 78-A. It appears to be a copy with my initial on it, and the other two.
 Q  Did you prepare any name lists in association with those documents?
 A  I was assisted, yes, sir.
 Q  Do you know the identity of the people who are depicted in these photographs?
 A  You mean if you were to show them to me right now?
 Q  Yes.
 A  Possibly some.
 Q  I am showing you Defendant's Exhibit 78-A, the page marked Page 3; and I am pointing in particular to the photograph in the upper right-hand corner designated Photograph No. 3. Do you know the name of that person?
 A  No, sir, I don't.
 Q  I show you Defendant's Exhibit 78. Would you tell me, sir, {1232} whether that is the companion name list?
 A  (Examining) Let me look here. Page 3 is, yes.
 Q  What is the name of that person?
 A  Of the one you say, No. 3?
 Q  Yes, sir, on Page 3.
 A  It says Norman Charles.
 Q  I realize that it says that on Exhibit 78. I am asking you if, after examining 78, and 78-A, you can tell us whose picture that is, not whose name appears on the list, do you understand my question now?
 A  No, I don't.
 Q  O.K. This is a list which purports to name the people?
 A  Um-hum.
 Q  And I acknowledge that on that list it says a certain name?
 A  That's correct.
 Q  I assume you and I can both read the name. The question is, having looked at the list and having looked back at the photograph, does that in any way confirm to you, of your own knowledge, from some basis other than looking at this list, the name of that person?
 A  I don't know if it is Norman Charles.
 Q  You don't know?
 A  No.
 Q  O.K. On June 26th, 1975, your professional activities were in {1233} one sense or another integrated with those of other law enforcement agencies, is that correct?
 A  That's correct.
 Q  And amongst them would be the Bureau of Indian Affairs police?
 A  Yes, sir.
 Q  Called the BIA, or the BIA police?
 A  Yes, sir.
 Q  And the South Dakota State Police, is that right?
 A  South Dakota Highway Patrol, yes, sir.
 Q  Highway Patrol. Did you ever receive or have occasion to review any report written by any of those law enforcement officials?
 A  Yes, sir.
 Q  Were there many, say, more than 15 or 20 in number, the reports?
 A  Well, I had read several, yes.
 Q  Did you ever read a report by a person named Eccofey?
 A  Which Eccofey?
 Q  I need a moment in order to give you his first name. Robert Ecoffey.
 A  That's possible, sir, but I don't recall that particular statement.
 Q  Do you recall whether the report of Robert Ecoffey was incorporated in a 302 verbatim with nothing more than a {1234} preamble paragraph that said "The following" -- in essence:  "The following is a copy of the report by Officer Ecoffey of the Bureau of Indian Affairs"?
 A  You mean, do I know that one exists?
 Q  Yes.
 A  A statement?
 Q  Yes. Are you aware that one exists?
 A  Personally, I don't personally know.
 Q  I show you Defendant's --
 MR. SIKMA:  (Interrupting) Your Honor, I would object to this. The witness has just stated that he is not familiar with such a document. He had Mr. Ecoffey on the stand and didn't ask him any questions about this. I to see the relevancy further from the standpoint of this particular case.
 MR. TAIKEFF:  First of all, your Honor, Mr. Sikma must have been sleeping if he says I did not ask Mr. Ecoffey about this report. The record is clear that I laid a sufficient foundation to introduce it into evidence when I am ready to offer it.
 Secondly, I want to make sure that the witness has exhausted his memory on the subject, and I think I am entitled to show him a document to see if his memory is affected by that showing.
 *THE COURT:  You may show him the document for that {1235} purpose.
 MR. TAIKEFF:  Thank you.
 Q  (By Mr. Taikeff) I show you Defendant's Exhibit 87 for identification and ask, sir, after you have a chance to look at it, whether you ever have seen that document, a copy of it or any document which it may refer to?
 A  (Examining).
 Q  It is not in evidence, and its contents should not be revealed at this time.
 A  I don't recall ever seeing it.
 Q  Do I understand that to mean you have never seen that 302?
 A  No. I can't say that. What I am saying is, I don't recall ever seeing that particular 302.
 Q  O.k. Have you ever seen the document which is referred to in the 302 or duplicated in the 302?
 A  (Examining) No, sir.
 Q  Do you know a person by the name of Edward M. Moreland?
 A  I know the name.
 Q  In what context?
 A  Well, I believe there was an agent there during that investigation by the name of Moreland.
 Q  Special Agent of the Federal Bureau of Investigation?
 A  I believe so.
 Q  Working out of the Rapid City office?
 A  He wasn't working out of the Rapid City office, no.
{1236}
 Q  Working on this case in South Dakota?
 A  Assisting, yes, sir.
 Q  On a temporary basis?
 A  Yes, sir.
 Q  I show you Defendant's Exhibits 93 and 94 for identification. Those are also not in evidence, should not be displayed to the jury at this time, and ask whether what is depicted in those photographs is familiar to you in any way?
 A  (Examining) Any way?
 Q  Yes. I am not ask you whether you know generically what the object is, but specifically is it familiar to you?
 A  Yes, it is.
 Q  In what connection are you familiar with the object?
 A  You want me to answer that?
 Q  Please.
 A  I saw this particular object, oh, sometime after the shooting I mean, days after, maybe even weeks.
 Q  Where?
 A  I believe it was in Pine Ridge. I can't say for certain (examining).
 Q  Would you be kind enough to direct your attention to Government Exhibit 71 behind you, and I ask specifically whether you know what these little black rectangles represent at or near the point where there is a letter "P" and a "P-1" on Government Exhibit 71?
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 A  (Examining) Basically they appear to me to be automobiles.
 Q  Do you have any knowledge from your presence at the scene whether in fact they are automobiles, or were automobiles there?
 A  I recall seeing automobiles the next day.
 Q  That is to say, on the 27th of June?
 A  Yes.
 Q  Do you recall how many?
 A  I just recall that there were some.
 MR. TAIKEFF:  Do you have those photos, Mr. Hanson?
 Q  (By Mr. Taikeff) I am bringing to you, sir, Government Exhibit 56 which is in evidence, and ask whether you would be kind enough to look through the album. I think there are three or four pages of photographs in there, and then I will put a question to you.
 A  (Examining).
 Q  I would like the record to reflect the fact that as you looked through that album, you looked over your shoulder at Government Exhibit 71, am I correct about that?
 A  Yes, sir.
 Q  O.k. Now, do you recognize in the photograph or any of the photographs the area which I referred to before around these automobile emblems?
 A  Yes, sir.
 Q  And in looking at those photographs, do you have -- or after looking at the photographs do you have any recollection {1238} concerning what vehicles you saw there the following day on June 27th at that spot?
 A  Well, I saw vehicles, but I can't tell you what the vehicles were in my own mind.
 Q  O.k. Now, I ask you to look at Defendant's Exhibits 93 and 94 for identification, and ask whether what you see in those photographs was present amongst those vehicles?
 A  These here (indicating)? No, sir. (Examining) unh-unh, not that I can see, not that particular object (indicating).
 Q  All right. When you say "that particular object," you are referring to the object depicted in the two photographs, 93 and 94 for identification?
 A  These two particular -- 94 and 93, not that I can see are in this photograph.
 Q  O.k. Where in Pine Ridge did you see the object which is depicted in 93 and 94 for identification?
 A  These two particular, 94 and 93, not that I can see -- are in this photograph.
 Q  O.k. Where in Pine Ridge did you see the object which is depicted in 93 and 94 for identification?
 A  That would have been at the building in the utilities yard.
 Q  Of what?
 A  Well, in the Bureau of Indian Affairs' buildings.
 Q  As far as you know, was that object the property of the {1239} Bureau of Indian Affairs?
 A  Not to my knowledge, it wasn't.
 Q  As far as you know, was it there as evidence in connection with some official activity of the Bureau of Indian Affairs?
 A  I later learned that it was, yes.
 Q  And from whom did you learn that?
 A  Well, the conferences, the general passing of information, that the vehicle was over in the B and U Building.
 Q  At the time that you just referred to, what was your understanding as to the role of that vehicle?
 A  Well, as I understood it, that that -- I can't say, not specifically that vehicle, but all the vehicles that we got out of there were somehow connected with the people involved in the shooting.
 Q  All right. I am bringing to you, sir, Government Exhibit 55 which is in evidence, and I ask you to look at Page 11, Photograph C, photograph of a vehicle, Page 12, Photograph B, that's the same vehicle as the one I just pointed out to you, isn't that correct, sir?
 A  It appears so.
 Q  And then there is Page 23. That appears to be the same vehicle as the two you just looked at?
 A  Yes.
 Q  How about that vehicle, did you see that vehicle in that location at the BIA Building at or about that time?
{1240}
 A  I don't recall.
 Q  I now show you Page 31 which has a single photograph, and Page 33 which has a single photograph, and Page 34 which has a single photograph. First, I ask you whether or agree that the same vehicle appears to be depicted in those three photographs?
 A  It appears.
 MR. TAIKEFF:  All right. If I may, your Honor, I just want to hold those photographs up to the jury so they can follow the questioning.
 (Counsel displays exhibit to the jury.)
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 Q  Going back to page 31, sir, that's a red and white Chevrolet, is it not?
 A  It's white over red Chevrolet panel; yes.
 Q  When you say "panel," you mean a panel truck?
 A  That's correct.
 Q  Would you agree that the word "van" might describe that type of a vehicle?
 A  No, I wouldn't.
 Q  You'd call it a panel truck?
 A  Yes.
 Q  Would you call it a pickup? Yes or no?
 A  No.
 Q  Did you see that panel truck at the BIA building?
 A  Eventually.
 Q  If I tell you that we thus far in this case have referred to that vehicle as a van, would you permit me on that basis to call it a van without objection from you so the jury is not confused about what vehicle we're talking about? Just for purposes of this trial. I understand you call it a panel truck.
 A  That's correct.
 Q  But I may refer to it as a van without objection from you?  A (Witness indicates.)
 Q  I just wanted to get some ground rules with you. That's all. Now when that van was at the BIA building, were there {1242} any vehicles near it?
 A  Yes, there were.
 Q  Can you describe those vehicles?
 A  I do recall seeing this particular panel truck but --
 Q  Can we call it a van, please. I understand the problem we're having but I want to make sure we use a consistent terminology so we don't create any unnecessary confusion.
 MR. SIKMA:  Your Honor, I'd object to that. The witness can call it whatever refreshes his recollection.
 THE COURT:  The jury has, I think it can distinguish between the two. The witness will be permitted to call it a panel if that's what he considers it.
 MR. TAIKEFF:  All right, Your Honor.
 Q  (By Mr. Taikeff) Go ahead, sir. I think I interrupted your answer. I apologize.
 A  There were other vehicles there but I can't specifically state what they were.
 MR. TAIKEFF:  If I may have just a moment, Your Honor, please.
 THE COURT:  You may.
 Q  (By Mr. Taikeff) The photographs I'm about to show you are not in evidence and should be withheld from the jury.
 MR. SIKMA:  Your Honor, I wonder if we might have an opportunity to view the photographs which are being shown. I don't know whether I've seen them or not. Also, perhaps, to {1243} raise a possible objection if that's necessary, but it's not possible to do that without knowing what the witness is being shown.
 MR. TAIKEFF:  Your Honor, without conceding that the government has a right to see them, under the circumstances I'll be happy to show them to the government.
 THE COURT:  Very well.
 MR. SIKMA:  Your Honor, I think the reciprocal discovery ordered in the case, and I would hope that Counsel would in that respect give us an opportunity to see the items which he has as exhibits.
 MR. TAIKEFF:  Your Honor, I would like to point out there is no misunderstanding, reciprocal discovery refers to evidence to be offered in the defendant's case in chief. This is cross-examination and the use of these photographs is part of the lawyer's work product and is not required to be shown to the government. But in spite of that fact, under the circumstances of this particular cross-examination I have done so.
 Q  (By Mr. Taikeff) First I'm going to show you Defendant's Exhibit 96 for identification. Do you recognize the object in those photographs?
 A  Well, I recognize; yes.
 Q  I assume you recognize the fact that's an automobile?
 A  That's correct.
{1244}
 Q  Do you know which automobile?
 A  Well, based on what you have showed me thus far, it appears to be the one you showed me earlier. I can't say that unequivocally based on this particular photo alone.
 Q  Okay. I am returning to you Government's Exhibit 55 which is the album of photographs from tent city which is in evidence and showing you page 11, photograph C which shows a green automobile and ask whether the photograph you're holding is of that automobile?
 A  Looks similar.
 Q  Okay. By the way, there came a time, did there not, when that green automobile was at the BIA building, right?
 A  I believe it was towed in but exactly where it ended up I do not know.
 Q  And the towing in was in connection with the official investigation that was going on with reference to this case, right?
 A  Yes, sir.
 Q  Now, sir, I show you No. 97 for identification and ask you whether in fact that depicts that green automobile which you see in Government's Exhibit 55?
 A  I can say this much:  that it, this particular Exhibit 97 bears the same license plate as in your album here identified {1245} as Government's Exhibit 55.
 Q  How about the make of the vehicle?
 A  Same.
 Q  How about the color of the vehicle?
 A  Well, depends on the light here.
 Q  How about the number and position of the windshield wipers?
 A  I don't think that's -- well, it appears to be the same.
 Q  How about the grill work?
 A  You can't tell. One's the forward and one's the rear.
 Q  I show you Defendant's Exhibit 103 for identification and ask you whether you are able now to say whether or not that's somewhat similar vehicle that was at the BIA place -- withdrawn. Whether you can say that the somewhat similar vehicle in the photographs I have been showing you which are not in evidence are of the vehicle which was at the BIA place?
 A  Well, it appears that the vehicle in Exhibit 103 and Government Exhibit 55 appear to be the same vehicle.
 Q  I see. Would you say that the vehicle in Defendant's Exhibit 98 for identification is also that same green Ford, and specifically whether it is at the BIA building?
 A  Well, I can say it appears to be the same vehicle but I can't say specifically if that's the BIA building.
 Q  Do you notice that there are people in the photograph?
 A  Yes, I do.
{1246}
 Q  Do you recognize any of them?
 A  Yes, sir.
 Q  Who are they?
 A  Dean Hughs, Jack Schwartz and Joe Goss.
 Q  And other than Hughs whom you already told us about, who are the other two gentlemen?
 A  Well, Joe Goss is a special agent for the FBI.
 Q  Yes, And the other gentlemen?
 A  Jack Schwartz?
 Q  Yes, sir.
 A  Well, I understood him to be an attorney.
 MR. TAIKEFF:  At this time, Your Honor, I offer into evidence Defendant's Exhibits 96, 97, 98 and 103.
 MR. SIKMA:  Your Honor, I object on the grounds of relevancy. No relevancy here has been shown in any respect. Might I ask one question, Your Honor, for the purpose of posing a further objection?
 THE COURT:  You may.
 MR. TAIKEFF:  No objection to that, Your Honor.
 THE COURT:  You may.
 MR. SIKMA:  Can you tell me whether you and other agents involved in this case pursued many leads which turned no evidence at all in the case?
 THE WITNESS:  Yes, sir.
 MR. TAIKEFF:  I object to that question and move to {1247} strike it at this time because it has nothing to do with the voir dire on the offer of proof. It's a cross-examination question which goes to the weight of the evidence which has been offered .
 MR. SIKMA:  I think it goes directly to the weight, Your Honor.
 MR. TAIKEFF:  Well, then, if Your Honor does not sustain my objection, I would like to ask a counterpoint question.
 MR. SIKMA:  I have one further question in addition to this one, Your Honor, if you do not sustain the objection to the question.
 THE COURT:  You have one additional question you want to ask of this witness?
 MR. SIKMA:  Yes. On voir dire, Your Honor.
 THE COURT:  Before I rule on the other objection you may ask the additional question.
 MR, SIKMA:  Mr. Coward, did this turning up leads include the examining of a number of junked vehicles?
 THE WITNESS:  Yes, it did.
 MR. TAIKEFF:  I'd like to ask one question which I think will resolve the matter.
 Q  (By Mr. Taikeff) Did the vehicles in question to which Mr. Sikma made reference come from the area known as the Jumping {1248} Bull area? Yes or no?
 A  What junked vehicles?
 Q  Any vehicles that you had there in the BIA lot. Did it come off these premises which are depicted in Government Exhibit 71? Yes or no?
 A  I don't understand your question. If you would, in relationship to his question is where I'm confused.
 Q  All right. Mr. Sikma asked you whether you were exploring every possible lead.
 A  That's correct.
 Q  In the course of your investigation.
 A  That's correct.
 Q  And did that include exploring leads relating to vehicles which were found on the premises which is depicted in Government's Exhibit 71? Yes or no?
 A  Yes, sir.
 Q  And amongst the several vehicles that you may have investigated, do the photographs which I just offered in evidence depict one of the vehicles which you pursued in that manner?
 A  Yes, sir.
 MR. TAIKEFF:  Your Honor, I renew my offer.
 MR. SIKMA:  Your Honor, I would again interpose an objection that there is still no showing of relevancy whatsoever.
 THE COURT:  Counsel approach the bench.
{1249}
 (Whereupon, the following proceedings were had at the bench:)
 THE COURT:  Not having seen the pictures, I would like --
 MR. TAIKEFF:  They are of the Ford, Your Honor, which was found in tent city at the BIA building.
 THE COURT:  And then the same photo, or apparently the pictures of this same auto appear at Exhibit 55?
 MR. TAIKEFF:  That's correct.
 MR. SIKMA:  Yes. This is the green car that was found in tent city. I think that in the background here he's referring to Photograph 98 is the other car which I can state for the record at this time, I believe, from his questioning of it, one of the cars which we referred to as a junked vehicle.
 MR. TAIKEFF:  And in addition, in the background of 97 is the red van. So that ties them altogether at that location and it is a critical piece of evidence for the defense that they were all there. I make that as a representation to the Court. It will be developed in great detail in the course of this trial.
 MR. SIKMA:  Your Honor, I say that the vehicle that was found or that red vehicle that was towed in was examined. However, I would also state that particular vehicle before it was towed in was necessary by way of offer of proof to {1250} put a battery in it before they could start it.
 MR. TAIKEFF:  I don't deny that that's the fact. It's what role is played at a certain point. This is significant. I will not make a contention at any time in the course of this trial that that vehicle was actually used. You need not fear that. I will be bound by that in connection with the proof I offer.
 MR. SIKMA:  Then I fail to see the relevance.
 MR. TAIKEFF:  I don't have to explain my entire theory to the government to get in a photograph of this vehicle that is already in evidence in another photograph.
 THE COURT:  Well, actually are seeking to put these photos in evidence to show the proximity of other vehicles, I presume, is that it?
 MR. TAIKEFF:  I'm seeking to show that that vehicle was taken in and I will eventually use that as a springboard to show that certain other vehicles were taken in which is a process of accretion by which I will prove my case, although there is no burden upon us to prove anything. And the question of relevance, I think, is obvious .
 MR. SIKMA:  Your Honor, this is really a waste of time as far as this witness is concerned because he really can't say with any certainty as to where it is and --
{1251}
 MR. TAIKEFF:  He has said where it is. He said it's in the BIA lot.
 MR. SIKMA:  He said he believes he saw it.
 MR. TAIKEFF:  That goes to the weight of the evidence, not its admissibility.
 MR. SIKMA:  Certainly not shown to be relevant at this time, Your Honor.
 THE COURT:  I'm going to admit the exhibits.
 MR. TAIKEFF:  Thank you, Your Honor.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 THE COURT:  Exhibit 96, 97, 98 and 103 are received.
 Q  (By Mr. Taikeff) I'm placing those exhibits before you, sir, placing closest to you Exhibit 97 and then next closest to you Exhibit 98 in evidence. Do you see another vehicle in 97?
 A  Yes, sir.
 Q  What vehicle is that?
 A  Well, it's a red vehicle.
 Q  It's a red vehicle or is it a particular red vehicle?
 A  It appears to be a particular red vehicle.
 Q  And to be specific, what particular red vehicle is it?
 A  It's not --
 Q  I beg your pardon?
 A  Which photograph are you referring to?
{1252}
 Q  97 I said was put closest to you and I asked you to look at that first.
 A  Okay.
 Q  Sir?
 A  It appears --
 Q  Yes, sir.
 A  -- that they are the same.
 Q  In other words, it appears that the vehicle which is in the background behind the green Ford is the vehicle I have referred to as the Chevrolet van which is on page 31 of Government Exhibit 55, is that correct?
 A  That's in reference to Defendant's Exhibit 97 only?
 Q  That's correct, sir.
 A  It appears to be.
 Q  Now I ask you to look at Defendant's Exhibit 98 tn evidence along with the Defendant's Exhibit 93 and 94 for identification. Now with respect to the picture which is in evidence, you see the green Ford?
 A  Yes, sir.
 Q  Yes or no, do you see another vehicle in the background?
 A  Yes, I do.
 Q  Can you identify the vehicle that is in the background and if you can, if it is possible for you to do so in terms of 93 and 94 for identification, first tell us whether you can make any identification.
{1253}
 A  Well, I can make an identification to certain references in this particular photograph.
 Q  Whatever the basis of your opinion, I ask you to offer us your opinion, not how you did it.
 A  Well, Defendant's Exhibit 98 has a broken windshield in it.
 Q  No, sir, don't tell us the details. Just tell us the answer if you have one.
 A  Well, to me they appear to -- the one in 93 appears to be identical to 98, but I can't say positively.
 Q  Show you Defendant's Exhibit 95 for identification, not evidence. Can you tell us the location at which that photograph was taken? Yes or no.
 A  Yes, I can.
 Q  What is the location?
 A  It's the police BIA parking lot. It's a secured evidence parking lot to the west I believe of the police station.
 Q  That's the same place where Defendant's Exhibit 98 shows, isn't it?
 A  See, this confuses me. I don't know where that background is.
 Q  Well, look now at Defendant's Exhibit 95 and tell me if you see a vehicle in the background of that.
 A  Yes, I do.
 Q  And do you recognize that vehicle?
{1254}
 A  It's a green vehicle.
 Q  Well, is it that green Ford which was in tent city?
 A  It appears to be, yes.
 Q  Well, isn't it a fact, sir, that the vehicle which is depicted in the background of Defendant's Exhibit 98, the one in Defendant's Exhibit 95 for identification, 93 for identification and 94 for identification, are all the same vehicle?
 MR. SIKMA:  Your Honor, this question has been asked and answered a number of times. Furthermore counsel is becoming argumentative with the witness. He said it appeared to be, and I think that's his answer.
 THE COURT:  I will allow the witness to answer.
 A  Well, it appears that Defendant's Exhibit 93, 95, 98, the red vehicle appear to be the same vehicle. But as far as saying what 94 goes to, I can't say hat.
 Q  (By Mr. Taikeff) All right.
 THE COURT:  I didn't hear the last answer.
 THE WITNESS:  As far as, Your Honor, as far as Defendant's Exhibit 94, I can't specifically say how this fits into these three particular photographs. There's not enough there for me to make an identification.
 MR. TAIKEFF:  All right. Your Honor, I make no offer with respect to Defendant's Exhibit 94. But I now offer into evidence Defendant's Exhibit 93 and 95, and I'm showing them {1255} to Government counsel.
 MR. SIKMA:  No objection, Your Honor.
 THE COURT:  Exhibits 93 and 95 are received.
 Q  (By Mr. Taikeff) I show you 95 and I ask you whether you would describe that vehicle as a red pickup? Yes or no.
 A  A pickup?
 Q  A red pickup.
 A  Well, the first thing that comes --
 Q  Just tell me yes or no.
 MR. SIKMA:  Your Honor --
 MR. TAIKEFF:  It is a simple question, Your Honor.
 THE COURT:  Just a moment. Are you able to answer it yes or no?
 THE WITNESS:  No, sir, I'm not.
 THE COURT:  All right.
 MR. TAIKEFF:  Now, Your Honor, I'd like to note that Mr. Sikma just said he can't answer the question yes or no. I am impressed with Mr. Sikma's ability to read the witness's mind.
 MR. SIKMA:  Your Honor, I would object to counsel's statements and move that it be stricken from the record. Counsel knows full well that I have an obligation to object to improper questions and to the improper examination of a witness.
 MR. TAIKEFF:  Your Honor, the proper way to state an {1256} objection is to say I object and state the legal grounds; and the legal ground, there was incompetence, not to state that he can't answer the question and tell him what the answer should be.
 MR. HULTMAN:  Your Honor, might we approach the bench?
 MR. TAIKEFF:  The federal rules of evidence provide for that.
 THE COURT:  Just a moment. The witness has stated that he cannot answer the question yes or no. You may answer the question, or you may, you may restate your question and the witness may answer it in his own way.
 Q  (By Mr. Taikoff) Remember the question?
 A  You asked me if it was a pickup.
 Q  I asked you if it was a red pickup.
 A  Okay.
 Q  Didn't I?
 A  Okay. Red pickup.
 Q  Okay.
 A  The first thing that comes across my mind is not being a pickup.
 Q  Why not?
 A  It's not, it's not a pickup.
 Q  What is it?
 A  It, it's some other type of vehicle. I believe it's an International Harvester.
{1257}
 Q  Yes. That's the manufacturer's name. Take a look at 93 in evidence. Is that the same vehicle?
 A  Appears to be.
 Q  Now, look at that and tell me whether it's a red pickup or not.
 A  That's my same answer, my initial reaction to these photographs is this vehicle being a pickup, it's not a pickup.
 Q  All right. What do you understand the word pickup to mean when we refer to a vehicle?
 A  Well, a pickup to me is a two wheel drive. You use the -- it's a half ton, three-quarter ton. Use it to haul wood, gravel. Use it to work around the farm. Doesn't have a detachable top, you know, it's all one body. I don't believe hat meets that criteria.  Q Isn't a pickup a vehicle that has a cab and a carrying compartment in the back which is open?
 A  Well, I think that could probably be true. But you asked if I thought it was a pickup, and to me my reaction to those ,..utographs is it's not a pickup.
 MR. TAIKEFF:  Your Honor, I just want to make sure I do not make any error. Is 95 in evidence? May I ask the Clerk?
 THE CLERK:  Yes.
 Q  (By Mr. Taikeff) I show you Defendant's Exhibit 95 and ask {1258} you first, is that the same vehicle we've been talking about for the last few minutes?
 A  Yes. I've seen this particular exhibit, yes, sir.
 Q  And you say that that is not a pickup in your opinion; is that correct?
 A  Now, you are asking me in my opinion is it a pickup?
 Q  Well, looking at that vehicle, if you were broadcasting a transmission as a law enforcement officer or someone said to you red pickup, and you saw that vehicle, would you think that maybe that was what the person was talking about?
 A  Well, to answer that question, that would be true, yes.
 Q  All right.
 MR. TAIKEFF:  Now, Your Honor, may I have that picture circulated amongst the jurors?
 THE COURT:  You may.
 MR. TAIKEFF:  Thank you.
 MR. HULTMAN:  Your Honor, could we approach the bench while the jury is looking at the photos at this time?
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:
 MR. HULTMAN:  Your Honor, the reason for approaching the bench is that we are constantly being placed in a situation where counsel is demanding a yes or no answer. And all of us know that there are many, many responses by witnesses many {1259} times where it cannot be a yes or no answer. And when that witness has indicated such hesitation, the Government has every right in the world to make that objection. We have and we will, and I want it made the opportunity in the future without any remarks being made in the presence as to whether or not the Government is conducting misconduct at that time or that they don't have such a right. That's the point to which I'm objecting at this time and I want the record clear.
 MR. TAIKEFF:  Your Honor, first of all we have a highly experienced and well-trained FBI agent who in addition to his experience in the field has, like all the other agents, been trained in the proper way to conduct himself in a courtroom. He knows full well that when a question is put to him in such a way that the question wants him to limit himself to a yes or no, and the question cannot be answered yes or no to say so. The witness does not need signals from counsel. Now, the proper way to state an objection, as I understand it under the federal rules of evidence, is to rise, say objection and state the legal grounds. Not to make a factual argument within the hearing of the jury and the witness. If the witness could not answer, the legal ground would be competence. And if that has to be elaborated upon, the appropriate place for it is at the sidebar. {1260} And as long as the Government continues in its course of conduct, which I interpret as an effort to throw signals at a witness, I'm going to resist their efforts unqualifiedly.
 THE COURT:  This practice of asking a witness yes or no can be a misleading practice because a witness may not be able to answer the question yes or no, but may feel compelled under the circumstances in the atmosphere of the courtroom to answer the question yes or no. I have been inclined many times, and I have refrained from doing so, to interpose a suggestion to the witness, if you are able to do so.
 MR. TAIKEFF:  I would be happy at the beginning of each cross-examination to advise the witness of that fact so there's no misunderstanding between me and the witness. But I do not want anything that even may appear to be a signal from adverse to a witness under cross-examination.
 MR. HULTMAN:  Well, Your Honor, if counsel is indicating by the mere fact that we don't have a right to make an objection, and that in and of itself then becomes a signal, I resist this whole --
 MR. TAIKEFF:  That's not my point.
 MR. HULTMAN:  We have a right to make an objection for whatever reason counsel has to make an objection, and I want that opportunity without interposing of a speech by counsel as to what the motive of the Government may or may not {1261} be.
 MR. TAIKEFF:  It's only when the Government makes speeches of this kind that I feel the necessity of responding. The rule is clear-cut. One states an objection and the legal grounds. One does not make short or long speeches in connection with an objection, and I don't object to the Government taking its position as often and vigorously as it deems appropriate. It is the manner in which it is done that I find inappropriate.
 MR. HULTMAN:  Well, then, Your Honor, I would put on the record that I will expect to abide by it, and I also expect all counsel for the defendant to equally abide by it.
 MR. TAIKEFF:  I am sure that that will occur.
 THE COURT:  Very well.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 MR. TAIKEFF:  Does Your Honor wish --
 THE COURT:  I'm going to declare a recess as soon as the jury is finished viewing the photos.
 Court is in recess until 11:00 o'clock.
 (Recess taken.)
{1262-1277} INTERROGATION OF WITNESS
 Pages 1262-1277
{1278}
 MR. TAIKEFF:  Sorry about the delay, Your Honor.
 THE COURT:  Very well. Jury may be brought in.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:
 THE COURT:  You may proceed.
 MR. TAIKEFF:  Thank you, Your Honor.
 Q  (By Mr. Taikeff) On how many separate occasions have you been to the Jumping Bull area? Do you know what I mean by the Jumping Bull area?
 A  Jumping Bull community?
 Q  Or the Jumping Bull community, yes.
 A  I've never been there before with the exception of that day.
 Q  Just once?
 A  That's correct.
 Q  I show you Exhibit 93 in evidence which depicts that red vehicle we've had some testimony about. And that's not the red and white panel truck, is it?
 A  No, sir, it's not.
 Q  Can you tell from looking at that photograph where that vehicle is standing in that photograph?
 A  No, I can't.
 Q  More specifically is that photograph not taken in the area of the Jumping Bull community?
{1279}
 A  You're speaking to me if it is?
 Q  If, from looking at it, you could say whether it is.
 A  I can't.
 MR. TAIKEFF:  All right. Your Honor, I believe the Government has offered a stipulation.
 MR. SIKMA:  Your Honor, I believe that we'll stipulate that it is in the area by what we have referred to as the junked cars I believe in other testimony.
 MR. TAIKEFF:  I think that's the area marked with the letter "P".
 MR. SIKMA:  Yes, Your Honor.
 THE COURT:  The stipulation --
 MR. SIKMA:  To the right.
 THE COURT:  -- is received.
 Q  (By Mr. Taikeff) Now, sir, on June 26, 1975 you had occasion to work with a team of law enforcement officers, some of whom were from the FBI and some of whom were from the BIA; is that correct?
 A  Yes, sir.
 Q  Could you tell us the names of some of the BIA people you Were with.
 A  Marvin Stoldt, Ely Conroy.
 Q  Could I have that second name again, please.
 A  Ely Conroy. Terry Weston and an Officer Pacer I believe.
{1280}
 Q  Now, beginning at what time did you come into contact with those people from the BIA? What time of day?
 A  At approximately 1:20 P.M.
 Q  And for how long did you remain in a position where you were working with them or coordinated with them, that specific group?
 A  Oh, until approximately 5:30 P.M.
 Q  Did you confine your activities to a certain area, relatively small area compared to that Chart 71 in evidence, or did you find yourself in numerous places that afternoon?
 A  I wouldn't define it as numerous.
 Q  How many?
 A  Two different other -- three different other locations than where I arrived initially.
 Q  Now, I would like to perhaps repeat some information concerning a highway known as Highway 35. Such a highway is in the area; is that correct?
 A  Yes, sir.
 Q  And if this Chart 71 in evidence were to be expanded to include Highway 35 it would have to be extended downward from the lower edge, is that correct thus far?
 A  Yes, sir.
 Q  And it would have to be expanded to the right?
 A  Yes, sir.
 Q  And possibly the right-hand half of the upper edge might have {1281} to be extended upward?
 A  Yes, sir.
 Q  Now, if that were done a sufficient distance, I gather that, and if it were drawn accurately, we would find somewhere over here (indicating) off the lower left-hand corner of 71 an intersection between Highway 35 and Highway 18; is that correct?
 A  That's correct.
 Q  And then that road in some manner of arc or curve would continue along below what is now the lower edge of the chart, coming up on the right-hand side and eventually would intersect Highway 18 again?
 A  Yes, sir.
 Q  How far down do we have to come in actual distance, not in inches of chart, before we would see Highway 35, let's say, directly below this wooded area which is the center bottom of the existing chart? And I'll help you with that by telling you that the distance between the white house and the bottom of the chart seems to be about a thousand feet.
 A  Oh, maybe a thousand yards.
 Q  About three thousand feet?
 A  No, one thousand yards.
 Q  I said about three thousand feet.
 A  Yeah, okay. Three thousand feet.
 Q  You were at one time somewhat closer to those residences {1282} than a thousand yards away, correct?
 A  Yes, sir.
 Q  And it is fair to say that you were fairly close, though, but not at Highway 35, almost due west of the residences?
 A  (No response.)
 Q  Which is the lower part of the chart.
 A  Yes.
 Q  I say that only for the record, not because I don't think you understand.
 A  Yes, yes, sir.
 Q  Is it accurate to say that you were approximately a half mile on a straight line from the residences when you were in that vicinity near Highway 35?
 A  Approximately a half a mile.
 Q  Yes, that's my question. A fair statement?
 A  Roughly.
 Q  Now, I think our point of departure a moment ago was your saying that you believe you were in three different areas in the course of that afternoon?
 A  Yes, sir.
 Q  I've already questioned you about one of them?
 A  Yes, sir.
 Q  Could you, using the pointer if you prefer, or by describing t, tell us the other two areas in which you were located that afternoon.
{1283}
 A  I'll use the pointer. From the position due west of these residences known to me as the Jumping Bull residence, the first time I was almost due north. I left there probably, oh, maybe five hundred yards from that location due north.
 Q  And how long did you remain at what I will refer to as the second location?
 A  Twenty minutes possibly.
 Q  And what time of day was that, sir?
 A  That was shortly after 4:30.
 Q  And how about the third location?
 A  Well, I would have been down here (indicating).
 Q  You are pointing to a place off the chart?
 A  Off the chart.
 Q  Which is south of tent city at the same latitude as tent city approximately. And how far south of the center of tent city were you approximately, just for the record primarily?
 A  I didn't know where tent city was at that particular time.
 Q  Well, now that you know it, could you give us an estimate?
 A  Well, I can't because I don't know the relationship between tent city and the Rooks residence.
 Q  Could you put it in terms of Highway 35, does that help you in any way?
 A  Yes. That's where I was.
 Q  You were at 35?
{1284}
 A  Yeah. I went south on 35.
 Q  I see. So you were sufficiently far out of what we now know to be tent city, so as to be in the vicinity of Highway 35?
 A  That's correct.
 Q  Okay. Would you be kind enough to resume your seat. What was that time of day?
 A  That was shortly after 5:30 P.M.
 Q  So most of the day you spent at the location I questioned you about approximately a half a mile west of the group of residences?
 A  Yes, sir.
 Q  Now, other than what you may have seen in the immediate vicinity of the residences, did you see any people who were, as far as you understood the facts to be, not law enforcement people in the area that day?
 A  Yes, I did.
 Q  In the woods?
 A  In the woods?
 Q  Yes. Did you see those people in the woods?
 A  Yes, sir.
 Q  On how many separate occasions did you see people in the woods in the course of the afternoon? And let me tell you, so there's no confusion in anybody's mind, I'm trying to discover from you some information about how many people there were around there and where they were and at what time of day. That's {1285} the purpose of asking you these questions.
 A  The woods meaning, not the -- or the area confining, or around this Jumping Bull --
 Q  I'm trying to exclude the area which is essentially at the center of Exhibit 71, and I'm trying to deal with people who may have been on the various slopes or in the woods or in the ravine or along the stream who were not known or believed by you to be law enforcement personnel.
 A  Well, at each location I went to and during the day I saw several people.
 Q  And what were they doing?
 A  Well, I could see people across the highway on top of a butte standing.
 Q  With guns?
 A  I couldn't tell if they had guns.
 Q  You couldn't say that they didn't have guns?
 A  That's correct.
 Q  Is that equally true?
 A  That's equally true.
 Q  All right.
 A  I saw people down by the -- I saw people behind me.
 Q  Excuse me. For the benefit of the record I think your first description was accompanied by pointing in the upper left-hand corner of Exhibit 71?
 A  That's correct.
{1286}
 Q  All right. Would you continue, please.
 A  Then shortly after in the afternoon when I left the first time from my present location I viewed two people up on top of a hill.
 Q  Can you give us some idea of where that hill was?
 A  Well, if you took my position west, you would go directly across the road. And west of me up the hill there's a rise.
 Q  West of you, which would be further down on this chart?
 A  That's correct.
 Q  If it were extended it would have to be extended further west?
 A  Yes, sir.
 Q  We would have to extend it to show Highway 35?
 A  Yes, sir.
 Q  And you saw two people there?
 A  Yes, sir.
 Q  What were they doing?
 A  Well, they were shooting.
{1287}
 Q  With rifles?
 A  With weapons.
 Q  Go on, tell us any other sightings that you made?
 A  And then after the response at 5:30, after 5:30 when I went down to the other location on Highway 35, and I saw approximately 10 individuals.
 Q  Moving south?
 A  Well, I would call it west.
 Q  Going this way (indicating), to the right on the chart?
 A  I went south, and if I was going south, they were off to my right-hand side, moving up the hill west, in a westerly direction, we will call it.
 Q  So in terms of the chart, you were moving off the right, towards the right, and these people were moving towards the bottom of the chart?
 A  This way (indicating), would be over here to my right (indicating).
 Q  Well, were they traveling a line which would -- if it were extended -- go down toward the bottom of the chart?
 A  No. You have to go up. Where I saw them, it was down by the culvert, by the Rooks' place, when I saw them. Of course, I was going on Highway 35, and they were going up the hill to the right, on an incline up the hill, so I would call it in a westerly direction.
 Q  I see. Which way on the chart do you believe west is {1288} depicted?
 A  That's north (indicating), that's south (indicating), and that's east (indicating), and that's west (indicating).
 Q  So west is toward the bottom of the chart?
 A  To me south is here (indicating), east and west -- I can see it now. O.k., the road goes that way (indicating). Well, from where I was on the road they were running in a westerly direction
 Q  Direction -- o.k. Did you see any other non-law enforcement people in the course of that afternoon, say, between 1:30 and 5:30 or 6:00?
 A  Yes, sir.
 Q  Could you tell us whether or not on two separate occasions that afternoon you either personally spotted two Indian men or were told by the group, or member of the group you were working with, that two Indian men had been spotted on two separate times that afternoon?
 A  Yes, sir.
 Q  Do yon have any reason to believe that they were the same two people both times?
 A  I have reason to believe that.
 Q  What is the basis of that belief?
 A  Well, earlier, before I arrived at this initial place, initial spot, two of the Bureau of Indian Affairs policemen that were in the car, in the group that we were with, advised {1289} Marvin Stoldt that they had just seen two individuals running up the hill about 200 yards off the roadway, down along a ravine.
 Q  Where were they as far as you could tell from the description in terms of the chart?
 A  Well, again it would have been west of the road.
 Q  Further down on the chart if it were extended?
 A  Further down, yes.
 Q  And that was about 2:00 o'clock in the afternoon?
 A  Roughly, yes, sir.
 Q  And then again two men were spotted at what time?
 A  Well, after 4:30.
 Q  Where were those two men spotted?
 A  Well, I never spotted them.
 Q  But you received information?
 A  Yes.
 Q  From your colleagues?
 A  Yes, sir.
 Q  Where do you believe they were spotted?
 A  Well, I understood them to be down in the creek area, which would be along this wooded area (indicating).
{1290}
 Q  Could you point with the pointer so I could state it for the record, please?
 A  Well, there is a creek that goes along this wooded area (indicating).
 Q  Yes.
 A  And it leads up into the dam.
 Q  Which is off the lower left-hand corner of the chart?
 A  Right.
 Q  Roughly where, along -- I am not asking for an exact location.
 A  It would have been north of my location.
 Q  North of your location?
 A  Right.
 Q  That would put it both below the lower edge of the chart and left of center of the center line of the chart, is that correct?
 A  It would put it in this area somewhere (indicating), that's what I was informed.
 Q  All right. You have just pointed to the wooded area which is in the lower left of the chart, about a foot and a half to two feet from the lower left-hand corner. Were those people carrying guns?
 A  I didn't see them, sir.
 Q  Was it reported that they were carrying guns?
 A  I did not hear that.
 Q  Now, you wrote one or more reports which you refer to in the FBI as 302's, right?
 A  Yes, sir.
 Q  Did you take notes in the course of the afternoon?
{1291}
 A  Me personally?
 Q  Yes, sir.
 A  No, sir.
 Q  Did you write your report with the assistance of any notes?
 A  No, sir.
 Q  Did you write the report based on your own recollections of what took place that day?
 A  Yes, sir.
 Q  Did you copy information from anybody else's 302?
 A  No, sir.
 Q  Before writing your report, did you collaborate in any way with another FBI Agent or law enforcement officer?
 A  No, sir.
 Q  I show you what has been marked Defendant's Exhibit 91 for identification, and ask you, sir, whether that is the report you wrote concerning your official activities on the afternoon of June 26, 1975?
 A  (Examining) It is a copy, yes, sir.
 Q  And it is part of your official duties to complete such report or document after you have performed your official duties?
 A  Yes, sir.
 Q  And documents such as that are kept as a permanent record of the agency for which you work, isn't that correct?
 A  Yes, sir.
{1292}
 Q  And in fact, it is considered an official document of your agency, not for public dissemination?
 MR. SIKMA:  Your Honor, I would object to this as irrelevant and also calling for a legal conclusion on the part of the witness.
 MR. TAIKEFF:  Your Honor, I am trying to lay a foundation as required by the Federal Rules of Evidence.
 THE COURT:  Proceed.
 MR. TAIKEFF:  Thank you.
 Q  (By Mr. Taikeff) Do you recall the last question, sir?
 A  Would you restate it, please?
 Q  Yes. I asked whether the document was an official one which was confidential in nature and not for public dissemination generally?
 A  That's correct, sir.
 Q  And as far as you know, based on your experience as an Agent of the Federal Bureau of Investigation, it is a regular part of the routine, so to speak, of the FBI to maintain reports of that kind in their files?
 A  Yes, sir.
 Q  And that report is specifically such a report, that was maintained in that way after it was prepared by you?
 A  Yes, sir.
 Q  Did you type the report yourself?
 A  No, sir.
{1293}
 Q  Did you dictate it to a stenographer?
 A  Yes, sir.
 Q  Did you dictate it personally or through some dictation device?
 A  No, sir. I personally -- to answer that question -- I dictated it personally.
 Q  Face to face with the stenographer?
 A  Face to face.
 Q  Who took it down in shorthand?
 A  Yes, sir.
 Q  And again on some later time you got the typewritten report back?
 A  That's correct, sir.
 Q  And you initialed it?
 A  I did initial it.
 Q  And that is the report?
 A  That's my report.
 MR. TAIKEFF:  I offer it in evidence.
 MR. SIKMA:  Your Honor, may we approach the bench?
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 MR. SIKMA:  On the same grounds as stated earlier, the Government objects. This is not -- I haven't seen any showing that there is anything -- any inconsistent {1294} statement. He has gone over it with this witness a number of times. I think that there has to be some showing of a prior inconsistent statement of the witness before it is admissible in evidence. He has the witness on the stand to testify, and that cannot be substituted for his written report.
 MR. TAIKEFF:  As the Government well knows, it is only possible to put evidence in in a linear fashion, and I cannot put in everything concerning his report at one time. This witness can only tell us what he has just told us, and I will connect it. If your Honor feels that I have not laid a sufficient foundation on the testimony already, I would ask your Honor, in the alternative, take it subject to connection.
 THE COURT:  Well, I think the objection is more basic than that, and that is, that a 302 report is not admissible on the record before this Court.
 MR. TAIKEFF:  He has testified that he has not collaborated with anyone in the writing of that.
 THE COURT:  I am not ruling on that basis.
 MR. TAIKEFF:  I am going to show that he did collaborate at a later time.
 THE COURT:  I see, excuse me
 MR. SIKMA:  He is not stating that. He said he had conferences and a lot of other things, that they discussed {1295} things with other evidence. He asked him if he collaborated with anyone in the writing of this particular report.
 MR. TAIKEFF:  That's correct.
 MR. SIKMA:  And it says "Frederick Coward" here, and it indicates who he was accompanied by and so forth, and I see no showing of inconsistency in that respect; but in addition to that, I would object to it on the more basic reason as to its admissibility, as ruled on earlier by the Court.
 THE COURT:  The ruling of the Court is that the report is not admissible, at least at this time, and so the offer is denied.
 MR. TAIKEFF:  Thank you.
 (Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
 THE COURT:  The objection to Exhibit 91 is sustained.
 Q  (By Mr. Taikeff) Returning your attention for a moment to the report which is Exhibit 91, is it accurate to say that to the best of your ability you recorded in that report every detail that you could recall of what you saw and heard and did that afternoon to the extent that at the time you wrote the report you thought it had some relevance to your official duties?
 A  I can answer that, yes.
 Q  And in fact, it is your understanding that when you write {1296} a 302, after you have been in the field, so to speak, that you should report as much peripheral detail as possible concerning anything you in your opinion think is significant relating to your activities?
 MR. SIKMA:  Your Honor, I would object for the reason that the question calls for irrelevant information, No. 1, and No. 2, the question basically has been asked and answered. It is repetitious.
 THE COURT:  It may be. I will allow counsel to proceed to some degree.
 MR. TAIKEFF:  I believe, your Honor, that was going to be my last question on the subject.
 THE COURT:  Very well.
 MR. TAIKEFF:  I am afraid I would have to ask the court reporter to read the question to make sure that it is stated the second time exactly as it was stated the first.
 THE COURT:  The court reporter may read the question back.
 (Question was read by the reporter.)
 A  Yes.
 Q  (By Mr. Taikeff) Is it not a fact that late that afternoon, perhaps 5:30 or later, you received notification via the FBI radio that there was firing going on in a certain area?
{1297}
 A  Yes, sir, I did.
 Q  And do you remember the name of the person who communicated that over the FBI radio?
 A  Yes, I do.
 Q  What is the name of that person?
 A  J. Gary Adams.
 Q  Now, you said before that you made some other sightings, is that correct?
 A  Yes, sir.
 Q  And I gather that you meant by that, at a place or in places other than the three places we have discussed in detail?
 A  Yes, sir.
 Q  Do you remember what day of the week June 30th, 1975, was?
 A  June 30th?
 Q  Yes.
 A  Let's see. The 26th was a Thursday, as I recall.
 Q  I believe that's correct.
 A  Friday, Saturday, Sunday -- I believe it was a Monday.
 Q  As far as you know, did you work that day?
 A  I worked every day.
 Q  Do you normally work every day?
 A  No, sir.
 Q  But at that time you were working every day?
 A  Yes, sir.
{1298}
 Q  And for how long after June 26th, 1975, did you continue to work every day without taking a day off?
 A  Two months.
 Q  Did you meet with your fellow agents who were working on this case on June 30th?
 A  I met them every day, sir.
 Q  Was there anything different about that day in connection with your morning or evening discussions with your colleagues?
 A  On that particular day?
 Q  Yes.
 A  Not that I recall.
 Q  I put it to you, sir, and you tell me whether this is correct or incorrect:  That on June 30th, 1975, you and one or more of your fellow agents sat down and decided from the evidence you had gathered up to that point what had happened that day, and to a considerable extent wrote reports which reflected not what you had seen and heard but what you believed had taken place, what you believed as of that time had taken place, true or false?
{1299}
 A  False.
 Q  I put it to you, sir, and you tell us whether I am right or wrong:  That you wrote certain portions of your report purely on the basis of fiction, motivated by what you then believed occurred on June 26th, 1975, is that true or is that false?
 MR. SIKMA:  Your Honor, I would object. This question has been asked and answered No. 1; No. 2, it is misleading; No. 3, it is argumentative as far as this witness.
 THE COURT:  Sustained.
 Q  (By Mr. Taikeff) Did you not write in your report something about seeing Leonard Peltier that day?
 A  That's correct.
 Q  And isn't it a fact that it is false, that you did not see Leonard Peltier that day?
 A  That's incorrect, sir.
 Q  Which way were you looking when you saw Leonard Peltier that day?
 A  Well, I was looking in a northeasterly direction.
 Q  Generally speaking in the direction of the residences?
 A  You mean when I saw him specifically?
 Q  When you claim you saw him, yes.
 A  Well, when I saw him specifically I was looking east.
 Q  And you were in the position off the chart, west of the houses, about a half mile away?
 A  Well, I was approximately 700 yards when I made the viewing of Leonard Peltier.
 Q  Isn't it a fact, sir, that you were a half mile away?
 A  From --
 Q  (Interrupting) When you were at the place from which you say you saw him.
{1300}
 A  Well, if you take the place where I was and measure the distance to the houses, it is approximately 800 yards which is less than a half a mile. If you take where I was and where I made the observation, it would be approximately 700 yards.
{1301}
 Q  I show you Defendant's Exhibit 92 for identification and ask you, yes or no, if you are able to answer yes or no, do you recognize that?
 A  Yes, sir, I do.
 Q  Is it an affidavit?
 A  Yes, sir.
 Q  And did you sign that affidavit?
 A  Yes, sir.
 Q  And did you swear to the truth on its contents?
 A  Yes, sir.
 Q  And does it have certain attachments to it which you referred to in the text of your affidavit?
 A  Yes, sir.
 Q  And when you signed that affidavit and swore to it, did you understand that you were incorporating the attachments by reference and thereby swearing to the accuracy of the attachments and the statements you made about them?
 A  Yes, sir.
 Q  Was there a map attached?
 A  Yes, sir.
 Q  Made perhaps from an aerial photograph?
 A  There was a map attached, however it was made I don't know.
 Q  And on that map did you indicate the place where you say you saw Leonard Peltier?
{1302}
 A  May I see the affidavit, please?
 Q  Well, can you tell me from memory, first?
 A  I think the general area is probably indicated but I'm not specifically sure.
 Q  Do you recall whether you marked on that map and said in your affidavit that you had marked on that map the place where you were and the place where Leonard Peltier was allegedly seen?
 A  I believe I did but I would have to see the affidavit.
 Q  Now I return to you Defendant's Exhibit 92, I'm showing you the last page. I'm also placing before you a blue index card with a straight edge. Do you have a pen or a pencil with you?
 A  No, sir, I do not.
 Q  I'm also placing before you a fountain pen. Do you see two marks on that last page?
 A  What do you mean "marks"? On the map itself?
 Q  A mark with A and a mark with B.
 A  Yes, I do.
 Q  And is one of them, according to your affidavit and your present recollection, the place where you say you were and the place where you say you saw Leonard Peltier? Yes or no, if you can answer it yes or no.
 A  That would be a yes, sir.
 Q  Is there a scale on the map which tells you the equivalent {1303} of how many feet per inch?
 A  Uh-huh.
 Q  Would you, sir, use the blue card and the pen, if necessary, and the scale and tell us the distance between the place where you said you were and you said you saw Leonard Peltier. Have you determined a distance?
 A  Yes. 2600 feet.
 Q  How many feet are in a mile, sir? Is it 5,280 feet?
 A  I believe so.
 Q  Would you concede that short 40 feet the distance was a half a mile?
 A  I would concede that.
 Q  Now when you were looking through this distance of a half mile, how many individuals do you say you saw?
 A  I saw four.
 Q  And were they standing still or moving?
 A  They were running.
 Q  And in which direction?
 A  Well, southwesterly direction.
 Q  In a southwesterly direction. Trace on the chart with the tip of the pointer the approximate route they were running as you viewed it.
 A  Well, when I viewed it?
{1304}
 Q  I'm talking about only your own personal sighting.
 A  That's right. When I viewed it it was in this area right like this (indicating).
 Q  Let me describe that for the record. That's about a half an inch to the right of the arrow that's designated "body of Joe Stuntz" on the road or path?
 A  Well, they weren't on the road.
 Q  No. Your pointer is on the road.
 A  Well, what I'm saying is --
 Q  Perhaps east of the road?
 A  Yes.
 Q  All right. And now trace out their path for a short distance.
 A  Well, went this direction (indicating).
 Q  Mostly in a southerly direction?
 A  Right.
 Q  And you were looking which way?
 A  Looking east.
 Q  You were looking east and they were moving south?
 A  (Witness nods affirmatively.)
 Q  Okay. Will you sit in that chair and assume for the moment that the back of the courtroom is to the south -- correction -- is to the east.
{1305}
 A  Okay.
 Q  Then facing the jury would be to the south?
 A  That's correct.
 Q  Now when you saw, or when you say you saw Leonard Peltier running in the direction of the jury, was he running that way and looking that way (indicating) or was he looking at you so you could get a good look at him?
 A  He was running that way.
 Q  So you could see only his profile?
 A  Basically; yes.
 Q  And from a half a mile away looking through the telescopic sight of a rifle, you were able to recognize the defendant in profile while running?
 A  Yes, sir.
 Q  Have you ever performed that feat at any other time in your life?
 A  No.
 Q  Now you were not the only person who accomplished something like that that afternoon, isn't that true?
 A  I later found that out; yes, sir.
 Q  When you say "later," when was that?
 A  Well, the first time I had heard that was a couple months after my report. I was not cognizant of it.
 Q  Isn't it true that you just forgot to put it in your report?
{1306}
 A  No. That's not true.
 Q  The identity by name of the people other than law enforcement officers who were present that day was exceedingly important to your investigation, a correct proposition or an incorrect proposition?
 A  I lost you. Could you restate it, please.
 Q  Yes. I asked you whether the following hypothesis or proposition is correct; the identity by name of the people other than law enforcement officers who were at or near the Jumping Bull community on the afternoon of June 26th, 1975, was exceedingly important to your investigation, true or not true?
 A  True.
 Q  Agent Skelly was one of those agents you worked with? Yes?
 A  Yes, sir.
 Q  Agent Waring was one of those agents you worked with? Yes?
 A  Yes, sir.
 Q  You met with them every morning?
 A  I met with everybody that was there.
 Q  I understand. But I have to be precise. You met with those two agents every morning and every evening in the days following June 26, 1975?
 A  I saw them; yes.
{1307}
 MR. TAIKEFF:  May I have this marked for identification please.
 Q  (By Mr. Taikeff) Between June 26th, 1975 and the end of your working day on June 30, 1975, did you and your fellow I agents talk about people who had been identified positively as being present that afternoon at the Jumping Bull community?
 A  Yes.
 Q  Did anyone mention the sighting of Leonard Peltier?
 A  I did.
 Q  Were you the only one?
 A  That I was aware of; yes.
 Q  Did anyone mention the sighting of Jimmy Eagle?
 A  Yes.
 Q  Who mentioned the sighting of Jimmy Eagle?
 A  You mean the agent?
 Q  Yes.
 A  Or who in particular?
 Q  You don't know?
 A  (Witness nods negatively.)
 Q  As far as you know, as of June 30 that sighting was common knowledge amongst all of them?
 A  As far as I knew. I was aware of it.
 Q  Did you not tell us before that you were working with the BIA officer by the name of Marvin Stoldt? Yes, sir.
{1308}
 Q  Did you have any conversations with Marvin Stoldt?
 A  All day.
 Q  Did he tell you that he claimed to have spotted Jimmy Eagle in that same group of four people?
 A  Yes, sir, he did.
 Q  That was an important fact, wasn't it?
 A  Yes.
 Q  Is it in your 302?
 A  Is it in my 302?
 Q  Yes.
 A  It's in one of them; yes.
 Q  I return to you Defendant's Exhibit 91 and perhaps you can assist me with the possible oversight. Can you tell me the page and paragraph?
 A  It's not in this particular 302.
 Q  Oh, I'm sorry, sir. Did I fail to hand you your report of the activities of June 26, 1975?
 A  These are mine. These are my observations, no one else's.
 Q  But that is your report concerning what happened on June 6th, 1975, isn't it?
 A  That I personally did; yes.
 Q  Only what you personally did is in that report. Yes or no?
 A  Well --
 Q  Yes or no.
 MR. SIKMA:  Your Honor. I'd --
{1309}
 MR. TAIKEFF:  I offer it in evidence again, Your Honor.
 MR. SIKMA:  Same objection as stated by the side bar.
 MR. TAIKEFF:  Now, would Your Honor examine the exhibit, please.
 MR. SIKMA:  Your Honor, the objection is the same for the same reasons.
 MR. TAIKEFF:  The basis is entirely different this time, Your Honor. If I may hand it up to the Court --
 MR. HULTMAN:  You're going to the side bar.
 MR. TAIKEFF:  I'm not going to say anything.
 THE COURT:  Counsel approach the bench, please.
 (Whereupon, the following proceedings were at the bench;)
 THE COURT:  Specifically why do you feel that --
 MR. TAIKEFF:  Your Honor, the report details in the most precision imaginable the activities of everybody with whom he was working, not just himself, and every time he mentions another person's name it is in capital letters. Your Honor doesn't even have to read the words, Your Honor only has to read the names which are boldface. This report impeaches his statement as to the explanation why the Jimmy Eagle sighting is not in there, because it doesn't refer to anybody else's activities.
 MR. SIKMA:  Your Honor, that refers to things that {1310} he personally observed other people do.
 MR. TAIKEFF:  And what people told him.
 MR. SIKMA:  That is not -- what does it show other people told him?
 MR. TAIKEFF:  There are eight or nine pages of what other people told him throughout.
 MR. SIKMA:  There are things that people said on the radio but not interviews.
 MR. TAIKEFF:  That's not true at all.
 MR. HULTMAN:  Let us finish on this side, please. Might I make a request?
 THE COURT:  The report will not be received. It can be used in the cross-examination of this witness to point up any discrepancies between his testimony and the --
 MR. TAIKEFF:  I'm going to have to read every single word in the report which is going to be the equivalent of offering it into evidence.
 MR. SIKMA:  Your Honor, I object to that. He's been through this 50 times. I think Counsel's trying to delay the trial.
 MR. TAIPEFF:  Not in this case he's not been through it. He hasn't begun getting through it yet.
 THE COURT:  The ruling of the Court is that this exhibit will not be received.
 MR. LOWE: A point of inquiry just to clarify. This is {1311} a general, not relating only to this exhibit, but general use. If Your Honor says that this is not admitted into evidence but it can be used in cross-examination, Your Honor is not precluding the reading of portions of it to a witness then, for example, is that correct? I'm not clear whether you do or don't. I'm going to make sure we don't offend Your Honor's understanding of what proper use can be made of it in cross-examination.
 THE COURT:  You may show it to the witness, ask him to read a certain portion and if that is clearly within conflict with what he has testified, then it may be brought out.
 MR. LOWE:  Well, I guess my question, Your Honor, and this is general, but we're going to hit this on other occasions in this trial. If the witness has said, assume, number one, he said this only contains what he saw or did and there are portions here which clearly by any objective reasoning give other information, namely what other people have told him, it seems to me we're obviously entitled to have the jury look at the document for themselves to judge the candor and credibility of the witness. That's the point I'm making. Mr. Taikeff showed it to you to offer, to let you see the clearly inconsistencies.
 MR. SIKMA:  There are no prior inconsistencies.
 MR. TAIKEFF:  Now we have the inconsistencies and that's {1312} the basis for offering it in evidence, to let the jury view it and use it as part of the data upon which they judge this witness' credibility.
 MR. HULTMAN:  Your Honor, now Mr. Lowe referred to two Counsels, I'd like to be heard.
 MR. TAIKEFF:  NO objection.
 MR. HULTMAN:  Your Honor, this is a bald attempt in order to get all kinds of hearsay into this record and before this jury. The very limited purpose that Counsel legitimately understands the rules concedes he has now done, that in no way then puts a document with all of these various items, all of us here know that that 302 represents two things basically; one, what it is that person may have seen or observed that day and, two, whatever it is by way of information in a general way likewise came to his attention.
 MR. TAIKEFF:  That's precisely my point.
 MR. HULTMbN:  But in no way does it allow the document itself to come on as the best evidence. The best evidence is the man sitting right there that's asking the questions.
 MR. TAIKEFF:  I'm on the adverse side of the case. I don't have to accept his answers.
 MR. HULTMAN:  You do as far as the inconsistencies, you have shown those out and used the document.
 MR. TAIKEFF:  I haven't begun. I need the document in {1313} order to do that.
 MR. HULTMAN:  You've used it. That's what you have been doing.
 MR. TAIKEFF:  Your Honor, I understand Your Honor's ruling and I will proceed.
 THE COURT:  My ruling is you may state to the witness what you understand his testimony to be and to go over what he has said and if he agrees that's what he has testified. You may ask him to read a specific portion of that you consider to be in conflict what that testimony and go on from there.
 MR. TAIKEFF:  I understand, Your Honor.
 THE COURT:  I'm not going to allow that report to go into evidence on the basis of the record at this time.
 MR. TAIKEFF:  I understand Your Honor's ruling and I have no quarrel with it except I respectfully accept from it, other than that I have nothing else to say about it.
 THE COURT:  Yes.
{1314} (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 MR. TAIKEFF:  May I proceed, Your Honor?
 THE COURT:  You may proceed.
 Q  (By Mr. Taikeff) Before we get back to Defendant's Exhibit 91 I want to ask you a few more questions. You said that Marvin Stoldt, S-t-o-l-d-t, a BIA officer, you subsequently learned also made a sighting of someone that day, right?
 A  What are you referring to, I mean?
 Q  I'm talking about the afternoon of June 26, 1975. I'm talking about a look through a distance of approximately a half a mile in roughly an easterly direction during which time you say you saw Leonard Peltier running in profile and recognized him at that distance by looking through a telescopic sight.
 A  That's correct.
 Q  Now, do you know whether a similar sighting was made by Officer Stoldt of that group in which he identified amongst others possibly James Eagle?
 A  Yes, sir.
 Q  And do you know what Officer Stoldt used to make his sighting?
 A  I later found out they were binoculars.
 Q  And do you know where he was relative to you when he ostensibly made his sighting?
{1315}
 A  Well, he was at the window to begin with.
 Q  Of a house?
 A  Of a house. He made an observation and called me over, at which time I made an observation. While I was doing that he was gone.
 Q  And can you tell us the words he spoke to you when he called you over to the window?
 A  The words, no, I can't. But basically --
 Q  Paraphrase him.
 A  Well, I was sitting in the corner looking out the window and he said, he called me by name and said, "There's some guys running, you know, over by the houses." Pointed it out to me. But when I got there, my naked eye, I could see the four people running away.
 Q  Okay. What was he doing at the time he called you over? What did you see?
 A  Well, I had noticed that he was there and he had his binoculars. And he was --
 Q  Around his neck, in his hand?
 A  Well, you know, when he was looking at him he had them in his hands.
 Q  Was there a strap on them?
 A  I don't recall.
 Q  What color were they?
{1316}
 A  Thing that comes to my mind is black.
 Q  What color was the strap?
 A  I don't know if there was a strap or not.
 Q  Can you show us with your hands the overall size from the back lens to the front lens approximately?
 A  Well, they were pretty good size. They had a lot of power to them.
 Q  You don't know that they had a lot of power, you know that it was a pretty good size?
 A  Well, they were big.
 Q  It was big, right?
 A  Right.
 MR. TAIKEFF:  I move to strike the portion of the answer that they had plenty of power on the ground of incompetence.
 THE COURT:  That they had a lot of power?
 MR. TAIKEFF:  Or a lot of power.
 THE COURT:  That part will be stricken.
 MR. TAIKEFF:  Thank you, Your Honor. (By Mr. Taikeff) Now, how big were they from front to back, front being the big lens to the front, back being the little lens that you put against your eye. I mean, I wasn't paying that much attention to his binoculars. I know he had binoculars, and I know that he was adequately seeing --
{1317}
 MR. TAIKEFF:  Objection, Your Honor, on the grounds that he's interpreting what was in somebody else's mind. Move to strike.
 THE COURT:  It will be stricken.
 Q  (By Mr. Taikeff) Go on, sir.
 A  All I can say he had a big set of binoculars.
 Q  Okay. Do you have a big set of binoculars, sir?
 A  Personally?
 Q  Yes.
 A  No, sir.
 Q  Did he then say something to you?
 A  At what point?
 Q  Sometime between the time he raised the binoculars to his eyes and the time he lowered them from his eyes?
 A  Well, the only conversation we had was the fact that he told me to come over there. He asked me to come over there. He said there was some activity and he saw people running, and I responded.
 Q  And then what happened immediately after that? He said nothing?
 A  Nothing.
 Q  Didn't tell you that he saw Jimmy Eagle?
 A  Didn't say a thing.
 Q  Didn't tell you that he saw Leonard Peltier?
 A  (No response.)
{1318}
 Q  Do you know as of that date how long Marvin Stoldt had been a police officer?
 A  How long?
 Q  Yes.
 A  For some time, several years.
 Q  More than five years?
 A  I don't know personally, but he's been --
 Q  Would you estimate his age as of that date?
 A  Age?
 Q  Yes.
 A  My age, upper thirties.
 Q  On that day, talking about the afternoon of June 26, 1975, did you know that Leonard Peltier was an AIM activist?
 A  An AIM activist?
 Q  Yes. An American Indian Movement activist, a political person? Yes or no.
 A  No.
 Q  You had heard the name before, though?
 A  Oh, yes.
 Q  Did Marvin Stoldt, up to the time he put the binoculars to his eyes, that is to say from the day you first met him until the moment he picked up those binoculars to his eyes, did he ever mention the name Leonard Peltier to you? Yes or no.
 A  No.
 Q  Did Marvin Stoldt say anything to you following the time he {1319} put down his binoculars?
 A  No. Because when I was doing my thing and later done, I turned for him and he was gone. I don't know where he went. He left the building.
 Q  Did you see him again that day?
 A  Yes.
 Q  Did you tell him that you saw Leonard Peltier running in profile at a distance of approximately a half a mile? Yes or no.
 A  No.
 Q  Is it your testimony that on June 26th, June 27th, June 28th and June 29th none of the agents with whom you were working said anything to you about Marvin Stoldt having identified one or more of the four people who were running?
 A  Somehow I don't understand that. Could you rephrase that, please.
 Q  Yes. Be happy to. I'll put it in the form of affirmative statement. You tell me whether it's true or not. Up to the time that you wrote your report, your 302, which is Defendant's Exhibit 91 for identification, none of the agents you were working with said anything to you about the alleged sighting made by Marvin Stoldt?
 A  The other agents, no.
 Q  Did anybody prior to the time you wrote Defendant's Exhibit 1 for identification?
{1320}
 A  Well, Marvin Stoldt told me.
 Q  When?
 A  Well, he told me about Jimmy Eagle in the car on the way back to where we had located the bodies.
 Q  He told you that he had seen Jimmy Eagle?
 A  Yes. That's what he said.
 Q  Didn't you tell us a little bit earlier that you didn't learn about that for several months?
 A  No, I did not.
 MR. TAIKEFF:  Excuse me one moment, please.
 Q  (By Mr. Taikeff) What did you say to him when he told you that news?
 A  I wasn't saying anything. I was listening to what he had to say. I was driving the vehicle.
 Q  Did you discuss that news with any of your fellow agents up to the time you wrote your report?
 A  Yes, sir.
 Q  Am I correct that when Marvin Stoldt told you what he did in the car that you considered that to be an important piece of information in connection with your investigation?
 A  Yes, sir, I did.
 Q  And is it fair to say that the report you wrote on June 30, 1975, which is now Defendant's Exhibit 91 for identification, contained many things that people had told you that afternoon?
 A  Yes, that's true.
{1321}
 Q  I thought you told us a little while ago that your report only contained things that you did. Are you changing your testimony in that regard?
 MR. SIKMA:  Your Honor, I would object on the grounds that it's argumentative and also a misstatement of the witness's answer some time ago.
 MR. TAIKEFF:  Perhaps Mr. Sikma would like to state what it is just to help counsel, Your Honor. What was that earlier answer. I would appreciate the assistance.
 MR. SIKMA:  Your Honor, I believe he indicated at that time what he had seen on that, and what he did in his conversations with people on that particular afternoon.
 Q  (By Mr. Taikeff) Was that your earlier answer?
 A  Yes, sir.
 Q  But in fact in addition to that your report contained what numerous people told you in the course of that day, isn't that true, sir?
 A  Yes, sir.
 MR. SIKMA:  Your Honor, I object to counsel's harassment of the witness here. It's obvious that he's being sarcastic and I would object to this, Your Honor.
 THE COURT:  This sarcasm will be disregarded.
 THE WITNESS:  Yes, Your Honor.
 Q  (by Mr. Taikoff) Then, sir, would you please tell us all why you didn't write in your report on June 30th this very {1322} important piece of information which Marvin Stoldt allegedly told you four days earlier?
 A  Well, to begin with the little items that people told me things in my 302 pertain to the movements and the commitments that I would make.
 The particular observation by Marvin Stoldt to me was a significant piece of evidence and observation, if you will. On the way back it was my position as an agent when interviewing people as to what had transpired that day, and keep in mind that everybody who was with me would be interviewed, their statements would be made known on 302's.
 It was at that time coming back in the car that that specific observation, this piece of evidence, was to be made in a separate 302 trying to determine what his observations were. And that particular observation and the things surrounding that particular conversation were listened to and incorporated into a 302.
 Q  I want to make sure I understand your answer. You said in essence that that was very important so you wanted to make sure you got it down in a separate 302? Yes or no.
 A  Well, that's true, yes.
 Q  Okay. Well, why didn't you interview him in the car while his memory was freshest?
 A  I don't understand that. What do you mean?
 Q  Well, I was suggesting to you, sir, that I didn't understand {1323} it either, and I wanted you to explain why you didn't take the occasion right then and there in the car to say, "Okay, Mr. Stoldt, here are my credentials, I'm an FBI agent. I want to interview you because you've just told me something very important. Now, tell more about it in detail."
 A  Well, the formality, really didn't need to go through that, we've been through it all day. We were on our way back to go assist the guys that were recovering the bodies that were doing the crime scene, and that's where we were going.
 We didn't have time to do a formal interview. We were making, we were trying our thoughts.
 Q  How long did that ride take before you got to your destination?
 A  Well, I left from the area where we had chased the group of people into the hills, and it was dark, and like less than five minutes probably. We drove back to the residences, the area where the rest of the people were, agents, police people. Didn't take long.
 Q  So you were busy that day?
 A  Very busy.
 Q  And that stood in the way of your getting on paper so that it would become a permanent part of the FBI files, the most important piece of evidence you acquired that day? _
 MR. SIKMA:  Objection, Your Honor. That calls for an {1324} opinion, conclusion of the witness.
 THE COURT:  Sustained.
 Q  (By Mr. Taikeff) Was it not --
 MR. SIKMA:  Same objection, Your Honor.
 MR. TAIKEFF:  I didn't finish the question yet. Do I understand the Government to object before I finish the question?
 THE COURT:  You may state your question.
 MR. TAIKEFF:  Thank you.
 Q  (By Mr. Taikeff) Was it not a Thursday?
 MR. TAIKEFF:  Do you object to that question?
 MR. SIKMA:  Your Honor, I object to counsel --
 THE COURT:  The remark of counsel will be disregarded. It is wasting time. Proceed.
 Q  (By Mr. Taikeff) Tell us, sir, in your opinion as a professional law enforcement officer, other than your supposed sighting of Leonard Peltier and Stoldt's supposed sighting of Jimmy Eagle, was there any other piece of evidence concerning the solution to the case that you gathered that afternoon by sight, sound or otherwise.
 MR. SIKMA:  Your Honor, I would object. That calls for a conclusion of the witness and invades the province of the jury.
 MR. TAIKEFF:  Of course I'm asking for his conclusion.
 THE COURT:  That objection is overruled.
{1325}
 A  No.
 Q  (By Mr. Taikeff) How many pages did you write on June 30, 1975 concerning your activities on June 26, 1975?
 A  Well, I didn't write any pages. My statement was typed and it consisted of eight.
 Q  Did you think that question suggested that you typed the report? Is that your understanding of my question?
 A  Yes, sir.
 Q  I'm sorry, I phrased it incorrectly. How many pages long is the report that you dictated and somebody else typed?
 A  Eight pages. Almost eight.
 Q  Single spaced or double-spaced?
 A  Single.
{1326}
 Q  Now, that report does contain a paragraph which refers to your alleged sighting of Leonard Peltier, does it not?
 A  My sighting, yes.
 Q  And when you were dictating the words which eventually were created by the typewriter into this paragraph, were you then and there reminded of the fact that Marvin Stoldt told you that he too sighted somebody?
 A  What do you mean, reminded by someone?
 Q  When you were dictating this paragraph, didn't you dictate this paragraph, this big paragraph on Page 2?
 A  I dictated everything, sir.
 Q  But specifically you dictated that paragraph, didn't you?
 A  That's correct.
 Q  That paragraph refers to your alleged sighting through the telescopic sight, doesn't it?
 A  That's correct.
 Q  When you were dictating that, was it in your conscious mind that Marvin Stoldt had had a similar experience that afternoon?
 A  I don't recall, but it possibly did.
 Q  Any reason why you didn't say:  Marvin Stoldt, a BIA officer, also made a similar sighting, but I have to interview him yet and details will follow?
 A  I don't know if it come out that way, but it probably crossed my mind.
{1327}
 Q  Is there anything, even one word, in Defendant's Exhibit 91 making reference to any sighting by any person other than yourself? "Yes" or "no".
 A  I would have to look to be --
 Q  (Interrupting) Please do (handing).
 A  Sure. Well, o.k., sightings of people.
 Q  At a distance?
 A  Yes.
 Q  Identifying somebody by name? "Yes" or ''no''.
 A  By name?
 Q  Yes.
 A  No. No, sir.
 Q  By the way, when did you get around to interviewing Marvin Stoldt?
 A  Well, I had a conversation with him on the way, like I said, to the crime scene.
 Q  No, no. I mean an interview in the sense that warranted the writing of the 302.
 A  Well, I guess it was a couple of months later that Marvin Stoldt came into the office.
 MR. TAIKEFF:  May I have a piece of paper marked for identification, please?
 Q  (By Mr. Taikeff) So he came into your office and tell us what happened when he came into your office.
 A  Well, I interviewed him.
{1328}
 Q  And then you wrote your report?
 A  Yes, I did.
 Q  And are you able to state the date of that interview?
 A  If I may look at the 302, I can.
 Q  I would be happy to show it to you, but my question is:  Without looking at anything, can you tell us the date? "Yes" or "no".
 MR. SIKMA:  Your Honor, the question has been asked and answered.
 MR. TAIKEFF:  I have not asked that question before.
 MR. SIKMA:  Your Honor --
 THE COURT:  (Interrupting) Are you able to state the date?
 THE WITNESS:  Not for sure, sir.
 Q  (By Mr. Taikeff) Would it help you if I suggested that it was on September 4, 1975?
 A  Yes, if that's what it says on there
 Q  Now, did you say before that it wasn't necessary for you to go through the formality of identifying yourself as an FBI Agent to Mr. Stoldt whom you had worked with?
 A  Men -- I mean Marvin and I worked together for a long time. He knew who I was.
 Q  Well, when he casually dropped into your office in September of 1975, did you go through a formal identification procedure at that time?
{1329}
 A  No.
 Q  Would there then be any reason for you to have said so in a report you wrote of that interview?
 A  Well, you know, shaking hands and saying "Good to see you", and yes, well, that's an identification.
 MR. TAIKEFF:  May I have this piece of paper marked for identification? (Counsel confer.)
 MR. SIKMA:  Your Honor, may we approach the bench?
 MR. TAIKEFF:  No, your Honor, I ask that I not be interrupted at this point in my cross examination.
 THE COURT:  You may approach the bench.
 (Whereupon, the following proceedings were had at the bench:)
 THE COURT:  Mr. Taikeff, I am running the court.
 MR. TAIKEFF:  I think the Government is running the court, your Honor. They do it at a time, in a critical point in the defense cross examination. That was totally unnecessary. I was just about to impeach him, and they know it.
 MR. SIKMA:  Your Honor, the type of information if -- I am sure that -- I am sure that the witness knows what type of information is coming with regard to a point that's totally irrelevant, concerning whether or not he identified himself as an FBI Agent. m is matter is so totally {1330} irrelevant that it does not merit the time that this counsel is taking on this type of examination.
 THE COURT:  Mr. Taikeff, that is the concern that the Court has, and that is that the requirements of the formal request may be such that when the report is written, that it shows that an identification has been made whereas in fact, if the report is from somebody, that is, on an interview with someone that is well-known in actual practice, the meeting may be much in the same form; and I think that type of impeachment is of no probative value and has a tendency to be misleading.
 MR. TAIKEFF:  He can certainly explain it, your Honor. I think it is just one more instance of the variation between the recorded facts and what he has testified to.
 MR. SIKMA:  Your Honor, I would object to it as irrelevant and waste of time.
 THE COURT:  It is irrelevant. It is a minor detail, as I say, that is misleading; and I think under Rule 611 it should be excluded.
 MR. LOWE:  Your Honor has seen the page we are talking about?
 THE COURT:  No, I have not seen the passage. I am talking about the questioning, as to how they meet, when the interview was conducted.
{1331}
 MR. TAIKEFF:  He said it was an informal visit, and that's the paragraph. That's Exhibit 106 which the Court is looking at for identification.
 (Court examines document.)
 THE COURT:  All right. The report reads:  That subsequent to the identification of the interviewing agent, furnished the following information.
 Now, I can conceive that in any type of an investigative organization a report would make a statement of that kind.
 MR. TAIKEFF:  I just want to ask him whether it was a fact or whether it was merely recorded.
 THE COURT:  It has no probative value, and I think that is exactly what Rule 611 reaches. It is in the nature of lint-picking, and it is wasting time.
 MR. TAIKEFF:  It is taking much more time to decide rather than getting the answer to the question.
 THE COURT:  I think that is true.
 MR. TAIKEFF:  Would you want to give in this instance only -- I can see no general need for an instruction -- for the witness not to discuss with anyone his testimony during the recess? I am fairly close to finishing. I don't want anyone to speak with him about his testimony.
 THE COURT:  I will not give that kind of an {1332} instruction in this case, I am going to have to give that instruction all through this trial.
 MR. HULTMAN:  I object strenuously. I have a right to talk to a witness any time.
 THE COURT:  I have overruled it.
 MR. TAIKEFF:  Thank you, your Honor.
 (Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
 MR. TAIKEFF:  Is it your desire to recess? I have more than just a few minutes.
 THE COURT:  You have more than just a few minutes?
 MR. TAIKEFF:  Yes, I do.
 THE COURT:  All right. The Court is in recess until 1:30.  (Whereupon, at 12:31 o'clock, p.m., the trial of the within cause was adjourned until 1:30 o'clock, p.m.)
{1333} AFTERNOON SESSION
 March 24, 1977
 1:30 o'clock, P.M.
 (Whereupon, the following proceedings were had in the courtroom without the hearing and presence of the jury:)
 THE COURT:  For Counsel's information, the Court will have to recess at 4:30 this afternoon. The reason for the early recess is that one of the jurors has a personal matter that has to be attended to.
 You may bring in the jury.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury)
 THE COURT:  You may proceed.
 MR. TAIKEFF:  Thank you, Your Honor.
 Q  (By Mr. Taikeff) Agent Coward, I am placing before you an object which has been marked Defendant's Exhibit 107 for identification, and a blank piece of paper which I am placing underneath it and I'm putting it in a certain position for you.
 MR. TAIKEFF:  Perhaps I should show it to government counsel, first.
 Q  (By Mr. Taikeff) Now, sir, if it is necessary for you to do so, I would encourage you to look at the central part of Government's Exhibit 71 with particular emphasis on the Y intersection that has been referred to as having the letter "P" {1334} on it and I ask you to look at the exhibit marked for identification which I just placed in front of you and ask whether you recognize that that is a drawing which purports to approximate the area around or near the residences and Y intersection.
 A  It appears that, sir.
 Q  Now I'm giving you a special marking pen which I think you will find writes in red and I ask you to look at Defendant's Exhibit 107 for identification, decide what the path was of the person whom you saw in the group of four and after you've made that decision put a dotted line showing as much of the path as is represented by what you saw from the time you first saw the group until you last saw the group.
 A  (Indicating.)
 Q  Do I understand from the way you marked that that by the time the people reached this area on the right-hand branch of the Y (indicating) almost at the tree line, that was the last you could see of them?
 A  Uh-huh. That's correct.
 Q  Now tell me if I am correct as to the following:  that when you first saw the group you saw them with the naked eye?
 A  That's correct.
 Q  Would you then put near that dotted line the number "1" to represent where the group was. I realize the group wasn't in one point, but as close as you can get it because that's a {1335} small diagram. Put the number "1" where the group was when you first saw it.
 A  (Indicating.)
 Q  Now put a "X" to designate that you could no longer see the group, wherever that place was.
 A  (Indicating.)
 Q  And is it your testimony that you watched the group traverse that entire distance from "1" to "X" along that line?
 A  That's correct.
 Q  And would you put a "W" where -- withdrawn. Did you see the person you say was Leonard Peltier travel over a distance?
 A  Yes, sir.
 Q  Put a "W" where you say he was when you first saw him.
 A  Well, when I first saw Leonard Peltier would have been the first time that I saw the group.
 Q  I know. But where you first identified him. I stand corrected.
 A  Just shortly before the "X."
 Q  And might I assume then that you continued to see him until you couldn't see anymore?
 A  That's correct.
 Q  So he went from the position marked "W" to the position marked "X" and disappeared?
 A  That's correct.
{1336}
 Q  And would you say that was roughly half the total distance traversed by the group?
 A  Roughly.
 Q  When you and Officer Stoldt were on your way to another location from the Jumping Bull community, were you traveling in an automobile?
 A  Any location or another?
 Q  Well, I think you said that there came a time in the afternoon when Stoldt told you about his sighting. You were in an automobile at that time. Weren't you going to some other location?
 A  Yes. Officer Weston reported a sighting and we responded to it.
 Q  I'm talking about that incident. You traveled in an automobile?
 A  Yes, sir.
 Q  And you were there and Stoldt was there I'd assume.
 A  That's correct.
 Q  Who else?
 A  Special Agent Vincent Breci.
 Q  That's B-r-e-c-i?
 A  Yes. And a BIA officer Eli Conroy.
 Q  Now I want to make sure that I have not misheard or misunderstood you. I'll very quickly click off some key facts. {1337} You say the sightings took place in the late afternoon of the 26th?
 A  Which sightings?
 Q  Yours and Stoldt's..
 A  You mean of the four people?
 Q  Yes. I'm talking about the sightings through some kind of telescopic sight, binoculars or other aid.
 A  It was approximately 3:45 as I stated before.
 Q  Okay. Sometime after 3:45 but before you quit working that night Stoldt told you about his making a sighting?
 A  Of the four people; yes.
 Q  And the fact that he had seen Jimmy Eagle?
 A  That's correct.
 Q  That was in the car?
 A  That was in the car.
 Q  That-because you were preoccupied or busy you did not interview him in depth so that you could write a 302 about it?
 A  At that time; no.
 Q  My statement is factually correct?
 A  I didn't write a 302 at that time.
 Q  And that was because you were preoccupied and busy?
 A  That's correct.
 Q  And that you did not do so until he came to your office sometime several months later in the month of September of 1975?
{1338}
 A  That's correct.
 Q  You're certain of that?
 A  You mean when he came there?
 Q  Yes.
 A  Couple months ago?
 Q  Yes.
 A  I can tell you this:  I hadn't seen