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

DIRECT EXAM SA WARING
[CROSS EXAMINATION PART ONE}
CROSS EXAM {CONT} 10C

MR. HULTMAN:  The Government calls Agent Waring, your Honor.
 (Counsel confer.)
 GERARD P. WARING, being first duly sworn, testified as follows:
 DIRECT EXAMINATION
By MR. HULTMAN:

 Q  State to the jury and to the Court your name.
 A  It is Gerard P. Waring.
 Q  Where is your home, Mr. Waring?
 A  It is in West Des Moines, Iowa.
 Q  What is the nature of your occupation?
 A  Special Agent with the FBI.
 Q  And approximately how long have you been in that capacity?
 A  Since October, 1970.
 Q  What -- how long have you been an agent assigned to the Des Moines area?
{1824}
 A  Since March, 1974.
 Q  And what is the general nature of your duties and responsibilities as a Special Agent of the FBI?
 A  Well, in Des Moines I am primarily concerned with the investigation of interstate transportation of stolen property cases, most generally fraudulent check type cases.
 Q  Is that what is normally referred to in the area of white collar crime?
 A  Yes, sir.
 Q  Was that your responsibilities primarily before the months o May and June, 1975, as well as since that time?
 A  Yes, it is.
 Q  Did you have an occasion sometime in 1975 to leave Des Moines, Iowa, and that general area of assignment and go somewhere else?
 A  Yes, I did.
 Q  And would you relate to the jury how that came, approximately when it was and how it came about?
 A  Well, a few days prior to May 26th, 1975, I was notified by my Assistant Special Agent in Charge of the Omaha Division that I was going to be assigned temporarily at the Pine Ridge Indian Reservation in South Dakota, and that I would have to report for duty on May 27th, 1975, in Rapid City, South Dakota.
 Q  And were you informed as to what was to be the purpose of your assignment there?
{1825}
 A  Yes, sir. I was being sent up there just to assist other FBI Agents working routine criminal matters on the Reservation.
 Q  Do you know whether or not there was any other individuals who received similar instructions from your own knowledge?
 A  Yes, sir. There were five other FBI Agents.
 Q  And do you know who those were?
 A  Yes. There was one other FBI Agent from my division which is Omaha.
 Q  Did you have occasion to discuss the assignment with him?
 A  Yes, I did, sir.
 Q  All right. Now, you referred, I believe to the word "assignment" or "special assignment", those words have been used.
 What did that mean to you then as well as now?
 A  Well, it is only special in the sense that I was not going to be working in Des Moines, Iowa; that I was being temporarily assigned outside of my normal duty place.
{1826}
 Q  Is it fair for me to conclude that a temporary assignment and a special assignment are one in the same in normal parlance?
 A  Yes, sir. I look at them to be the same way.
 Q  What if anything did you then do once you went to the new area of temporary assignment that you had?
 A  As I said, on May 27, 1975 I reported into our resident agency in Rapid City, South Dakota, then from there I was assigned to work primarily the Pine Ridge Indian Reservation. So I was going to be temporarily staying down in Gordon, Nebraska at the Hopkins Motel.
 Q  When a change of assignment or a temporary assignment of that kind comes along, are there some routine documents that indicate that very thing?
 A  Yes, there are.
 Q  Did routine documents of that kind come to your attention at that particular time?
 A  Yes, they did.
 Q  I'm going to show you what's been marked as Government's Exhibit 51 which Counsel has indicated there is no objection so I will move without foundation, Your Honor, and ask you whether or not you recognize a transfer and movement document of that kind?
 A  Yes, sir.
 Q  And did you receive one of this general kind and nature at that time?
{1827}
 A  Yes, I did.
 Q  This particular one is not yours, is that correct?
 A  That's correct.
 Q  I'm going to show you also what's been marked as Government's Exhibit 52 here and this is a field office register which indicates somebody going from one spot of assignment to another area, and did you receive one similar to that at that time?
 A  Yes, I did.
 Q  And are you generally familiar again with documents of this kind?
 A  Yes, sir.
 Q  I'll show you what's been marked as Government's Exhibit 53 and ask you whether or not again that is a routine type of document which indicates somebody is being transferred from one spot to another?
 A  Yes, it is.
 MR. HULTMAN:  Now, Your Honor, I will offer into evidence Government's Exhibits 51, 52 and 53 at this time.
 MR. TAIKEFF:  There is no objection.
 THE COURT:  Very well. Exhibits 51, 52 and 53 are received.
 MR. HULTMAN:  Yes, Your Honor.
 Q  (By Mr. Hultman) Now about when was it that you arrived on he reservation then, if you recall, approximately?
{1828}
 A  Well, I had gone down through the reservation on the way to Gordon, Nebraska, to the motel on May 27, 1975.
 Q  And did you proceed then from that day to carry out normal responsibilities of an agent?
 A  Yes, sir.
 Q  Would you just tell the jury in general what it was then that you did for the next few weeks.
 A  Well, basically myself and the other agents that were assigned with me on this temporary assignment, since it was a lengthy drive back to Rapid City, we more or less just established working facility at the motel in our rooms and we just conducted our investigations right from the motel and would drive daily to the reservation to conduct any investigations that we had been assigned.
 Q  Now did you have a, somebody that you worked with most of the time?
 A  Yes, I did, sir.
 Q  Who was that?
 A  That was Special Agent Vincent Breci.
 Q  Where was he from? Where had he been reassigned from temporarily?
 A  He had come from the Omaha headquarters office.
 Q  Now would you tell the jury just in a sentence or two what the nature of the work was that you did up until the 26th of June from the time you got there?
{1829}
 A  Basically was just very routine criminal matters. It was nothing outstanding. There was some break-ins and just theft that occurred on the reservation that I worked.
 Q  Did you make some arrests during that period of time?
 A  Yes, sir I did.
 Q  Is this a norEl and routine part of your responsibility to serve warrants and execute warrants or to make arrests on warrants that are outstanding?
 A  Yes, sir, it is.
 Q  Now did you have occasion on the 25th of June to be concerned with any warrants primarily, as well as maybe a number generally?
 A  Yes, I did.
 Q  And would you tell the jury what the reason was and what those warrants were?
 A  Well, we had on June the 25th one of the agents from Rapid City, South Dakota notified me that four arrest warrants had been issued and that I was going to assist them in attempting to locate these individuals and place them under arrest.
 Q  Procedurally, would you explain to the jury how it is that it works in terms, do you have normally the actual warrant itself in your possession?
 A  No, sir.
 Q  Is the reason there may be many agents in many places looking pursuant to a given warrant, is that a fair conclusion on my {1830} part?
 A  Yes, sir.
 Q  But once you are notified and have knowledge, then you are in a capacity to perform certain functions, is that right?
 A  Yes, sir.
 Q  And you had so been notified as far as these four particular warrants that day, is that right?
 A  That's correct.
 Q  Now would you explain to the Court who those warrants concerned and what was the nature of the charge?
 A  Well, the actual warrants were issued for individuals named Teddy Paul Pourier, one was named Hobart Horse, one was Herbert Thunder Hawk and an individual by the name of Jimmy Eagle and they'd been issued for armed robbery, assault with a deadly weapon.
 Q  So there were warrants outstanding against some of those individuals for one charge and another warrant for certain individuals for another charge, is that right?
 A  That's correct, sir.
 Q  Now what had you then in fact done and with whom on the 25th of June?
 A  On the 25th of June I accompanied Special Agents from Rapid City and we had conducted an investigation up in the area known as Sharps Corners, in that general vicinity on the {1831} reservation, and had located and assisted in the arrest of Teddy Paul Pourier.
 Q  What if anything then did you do beginning on the morning of the 26th? Would you start with when you first got up in the morning on the 26th of June, 1975.
 A  When I got up I just signed on duty at the motel which was 7:30, approximately 7:30 A.M. I signed on duty. Then I just proceeded to look over some work that I had previously done, prepared some dictation and just generally get organized from previous investigation that had taken place.
 Q  Let me ask you about your administrative work. Were you doing some administrative work during this period of time?
 A  Yes, sir.
 Q  With reference to administrative work such as the typing of your reports and so forth, are there many occasions when you do that yourself?
 A  Yes, there is, sir.
 Q  And was this particular period such a period in time?
 A  Yes, sir.
 Q  Now did you see anybody -- who was the first person you saw that morning that you recognized or knew?
 A  Special Agent Ronald Williams.
 Q  And where was it that you saw Agent Williams, do you recall?
 A  Yes. Agent Williams came up to my room and just asked me if I wanted to accompany him down to the motel coffee shop and {1832} have a cup of coffee and talk over some of the investigation that we had been doing together.
 Q  Had you been actually working with him the day before?
 A  Yes, sir. He was there along with a number of other special agents.
 Q  Now how many agents were on the entire reservation at this particular time to your knowledge?
 A  On the 26th of June, sir?
 Q  Yes.
 A  There was five agents that I knew of.
 Q  Now you said you had coffee with them and you discussed some things. What was it you discussed in particular?
 A  Well, basically Ron Williams was primarily interested in attempting to locate Jimmy Eagle since he had worked the previous day in the afternoon to locate Jimmy Eagle and he believed that Jimmy Eagle was on the reservation and most likely would be in the Oglala, South Dakota area.
 Q  And did you discuss or make any plan for the day?
 A  Yes, sir, we did. Ron discussed with me the fact he was going to go up to the Oglala area and just ask some questions in an effort to locate where Jimmy Eagle was. I told Ron that I would go with him to assist him locating Jimmy Eagle.
 Q  Was there a particular reason why you offered to assist him on that morning?
 A  Just generally because normally we look for an individual {1833} and we go into a restaurant, we have two agents.
 Q  And was his partner that day available that had been with him?
 A  well, he didn't, he wasn't actually working with a partner but we would pick up one of the agents that was assigned there on a temporary assignment to work with him when he needed help.
 Q  Now what if anything happened next that morning?
 A  Well, after briefly discussing what had taken place the day before and the fact that we'd get together, go up to the reservation and look for Jimmy Eagle. Shortly afterwards Jack Coler entered the restaurant, sat down and had a cup of coffee and in the ensuing conversation he told Ron Williams that he would go with him. Then I indicated that since they would go together that I would meet them later on with Special Agent Breci and all four of us would go out on the reservation and look for Jimmy Eagle.
 Q  Is it fair for me to conclude that it was only by happenstance you did not proceed with Ron Williams that day and Jack Coler?
 A  That's correct, sir.
 Q  What if anything happened next?
 A  Well, as soon as we finished the coffee we just went back up to our rooms and Ron and Jack were then going to prepare to leave the motel area, but I had asked Ron if he'd stop by my {1834} room prior to leaving the motel area so I could give him some mail to drop off up at Rapid City later on in the day.
 Q  Did you in fact then see them leave that morning?
 A  Yes, sir. Shortly afterwards. Agent Williams came by my room. I gave him some mail. I again told him that I'd meet him up approximately noon time with Special Agent Breci and myself and we'd go with him and Jack Coler to look for Jimmy Eagle.
 Q  Did you later then that morning observe them leave in any automobile?
 A  Yes, sir.
 Q  all right.
 I'm just going to show you what has generally been marked here as Government's Exhibit No. 57 and just ask you, first of all, if you remember what kind of a car Agent Coler was driving that morning?
 A  Yes. Agent Coler was in a white over gold Chevrolet.
 Q  And I would show you just in general some photographs in Exhibit No. 57 and ask whether or not you identify the vehicle that's represented there.
 A  Yes, sir. That's Agent Coler's car.
 Q  Is that the one he left in that morning?
 A  Yes, sir.
 Q  I'm going to show you and ask you -- first of all, before showing you, do you remember the type of automobile that Agent {1835} Williams was driving that morning?
 A  He was driving a dark green Rambler.
 Q  And I would show you what's been marked as Government's Exhibit 58 and ask you whether or not you'd identify any object that's represented there at the beginning.
 A  Yes, sir. That's Agent Williams' car.
 Q  Now had you on previous occasions, like even the day before, seen these two agents and their particular automobile?
 A  Yes, sir. I had ridden in both cars prior to that day.
 Q  So that you were generally familiar with them, is that correct?
 A  Yes, sir.
 Q  Now did you in fact leave later that morning?
 A  Yes, I did.
 Q  And did you leave with anyone?
 A  Yes. Agent Breci and myself left the motel between 11:00, 11:15 A.M. that morning.
 Q  And would you describe to the jury how you were traveling.
 A  Well, we were in my car.
 Q  And who was driving?
 A  Agent Breci.
 Q  Now would you describe to the jury where it was you left from, where you were going and then anything that came to your attention along the way.
 A  Well, we left the motel and the general area between 11:00, {1836} 11:15 A.M. since we wanted to meet up with Special Agents Williams and Coler in the village of Pine Ridge around noon time. So we decided to leave there and drove to the city of Gordon, Nebraska and we headed north toward the Pine Ridge Indian Reservation.
 Q  And how, approximately what is the distance between those two spots?
 $A  At this time I don't recall the distance. Takes about 30 to 40 minutes to drive that distance.
 Q  At what rate of speed?
 A  At 55 miles per hour.
 Q  And where was it then in proximity, to the point from which you're leaving to the point which you're going to did something come to your attention? Did you state about halfway, about halfway --
 A  About halfway into the village of Pine Ridge I heard agent Williams come on the car radio.
 Q  Now would you explain to the jury and tell the jury what it was that you heard at that time.
 A  Well, the first transmission that I noticed from Agent Williams, he stated that there was a red and white vehicle traveling near him and there appeared to be a number of Indians in the vehicle.
 Q  And did he say anything about the Indians at all?
 A  That was shortly thereafter his next transmission was {1837} that the individuals appeared to have rifles and then almost all continuing with the radio transmission he stated that he was being fired on by these individuals.
 Q  And what if anything did you hear or do next?
 A  Well, at that point in time naturally Agent Breci accelerated since we'd, figured we'd get up in the area of the Pine Ridge Reservation as soon as we could. And Agent Gary Adams then came on the radio immediately after hearing Agent Williams had come under fire.
 Q  What if anything did you hear now?
 A  Agent Adams asked Williams his location and in response to that Williams told him that he was in the Oglala, South Dakota area near the Little residence and then again asked for help to get there as quick as he could.
 Q  And what if anything did you hear next?
 A  Well, then Williams continued saying that the firing was coming to him from the ridge above him and that he needed help quick to get the Indians off the ridge since the firing was above him.
 Q  What if anything did you hear next?
 A  Well, at that point again Williams was still transmitting and he stated on the radio that he needed help quick, that the Indians were on the rise and that if we didn't arrive quickly to help him that they were dead men.
 Q  And what if anything did you do?
{1838}
 A  Well, at that point, since I was not totally familiar with the areas of the reservation, I attempted to contact Williams on my radio to get an exact location as to where we could find him.
 Q  And he had said to you words that he was at the Little residence, is that as you read it, as you testified?
 A  Well, earlier when Special Agent Adams had contacted him, that was his response and he was near the Little residence.
 Q  That didn't mean anything in particular to you, that's why you were trying to get back to him, is that right?
 A  Not at that time; no, sir.
 Q  Now what if anything happened next?
 A  Well, I attempted to get through to Agent Williams but I didn't get the response since I had asked his location but he did come back on the radio and at that point he was noticeably out of breath. There was more excitement to his voice and the next words I heard him say that, "I have been hit," and that was the last transmission that I heard from Williams.
Q  Now would you explain to the jury in your own words what was the time frame or sequence, as you recall it, from the first broadcast that you heard, that you described to him, to the last one you just now described?
 A  The entire sequence of transmissions would have been just a very few minutes. I can't place an exact time frame on it, but it was just a very few minutes.
{1839}
 Q  And was there any other transmissions that you heard during the few minutes, as you described it, other that the ones that you have indicated to the jury?
 A  No, sir. Not at that time.
 Q  Now what if anything did you do next?
 A  Well, as soon as I heard Williams announce on the radio that he had been hit, I at that point contacted the Rapid City resident agency on my radio and I asked them if they would contact the BIA or Bureau of Indian Affairs police department in Pine Ridge, contact the South Dakota Highway Patrol and any other law enforcement agencies that would lend people to assist us. I told them my interpretation of the radio transmissions were that Agent Williams had come under fire and that he had been hit and that he was most likely accompanied by Jack Coler.
 Q  What about your partner, had he done anything in terms of what he was doing during this period of time?
 A  He was driving the vehicle at a high rate of speed.
 Q  And approximately how high a rate of speed, if you know?
 A  We were in excess of 100 miles an hour.
 Q  Now what if anything was the next thing that transpired?
 A  Well, at that point, after notifying the Rapid City resident agency, myself and Agent Breci were just attempting to assess our own actions when we eventually located the area {1840} where the shooting had taken place. We knew we had one, two handguns and one shotgun and one rifle and we felt we might need additional weapons so we had planned on, as soon as we arrived in Pine Ridge village we were going to stop at the BIA office and see if we couldn't pick up some additional weapons.
 Q  Now were the weapons that you had, that you have referred to those that you normally carry during routine matters?
 A  Yes, sir. Those are the weapons that we normally have available to us.
 Q  But in an emergency matter of the kind that has now come to your attention, you then decided you needed additional equipment, is that right?
 A  Yes, sir.
 Q  So what if anything then did you do?
 A  Well, when we hit into the village of Pine Ridge, Vince Breci stopped the car and I told him to get the shotgun and the rifle that we had out of the trunk and I immediately proceeded to the BIA office to not only obtain weapons but to also notify them of the events of what was happening if they hadn't heard.
 Q  What if anything did you find when you got to the BIA office?
 A  I found the door was locked and I couldn't get in and there {1841} was nobody at the building.
 Q  So were you able to get any of the things that you thought you might need or might be of necessity to you?
 A  No, sir.
{1842}
 Q  So what if anything did you do next?
 A  We at that point, due to the urgency of the situation, I just immediately turned around. We got back into our car and we proceeded north our of the village of Pine Ridge and then I contacted Special Agent Adams on my radio again.
 Q  And what if anything happened next?
 A  Well, I contacted Special Agent Adams because at this point I still wasn't sure of the location, of where the shooting was. And Agent Adams notified me just to continue north on Highway 18, and that as we come north three or four miles of the Oglala area that we should see him on the west side of Highway 18.
 Q  What if anything happened next?
 A  Well, we just continued north and shortly thereafter we did notice Special Agent Adams car on the west side pulled off of Highway 18, and that Special Agent Adams was down beside the car kneeling down.
 Q  And do you know from your observation at that time what he was doing?
 A  Yes, sir. He was definitely being shot at.
 Q  And was there, could you see what he himself was doing at that particular time?
 A  At that particular time he was just talking on the radio.
 Q  All right. Now, I'm going to ask you to point out to the jury on Government's Exhibit No. 71, which is the exhibit immediately behind you, to show the Jury where you first can {1843} show them on the map you would appear on this particular exhibit.
 A  Well, as I would come down the highway we were up Highway 18. I would be coming from this point towards this direction (indicating).
 Q  All right. So you had already been to Pine Ridge which would be to the right of Government Exhibit 71; is that right?
 A  Yes, sir.
 Q  And you were traveling then in the direction of Oglala?
 A  Yes, sir.
 Q  On Highway 18.
 All right. Now, would you point out to the jury where it was now, where you proceeded to and where it was in the general vicinity that you saw Agent Adams, his car and Agent Adams apparently talking over his microphone?
 A  Agent Adams would be in this general area right in here off of the highway (indicating).
 Q  All right. And what if anything then did you do next?
 MR. TAIKEFF:  Your Honor, could the record reflect that in response to the earlier question he pointed to the area that we might describe as the place to which Adams backed up.
 MR. HULTMAN:  All right. That's fine, that's fine.
 THE COURT:  The record may so show.
 MR. HULTMAN:  Very good.
{1844}
 Q  (By Mr. Hultman) All right. Now, you might point to the jury at this time what the general direction of Mr. Adams, of Agent Adams' car was, what direction was it generally pointed if you can in just in a general direction on Government's Exhibit 71.
 A  As I recall he had his, the car would have been just slightly on an angle off of this road because he had the driver's door open to the Highway 18 side that he was kneeling down in that --
 Q  Would the general direction of the car be somewhere in the general direction of the housing area of Jumping Bull's as different from Highway 18?
 A  Yes, sir. When I saw the car it was just stopped right there and I would say that the front of it would be pointed off in this direction (indicating).
 Q  All right. Very good. Now, what if anything did you observe or do next?
 A  Well, at that point we knew that Adams was under fire right here (indicating) so we came past his location and we turned into, this is just a dirt path right over here (indicating). We turned in off of there and there's high ground in here (indicating). So we just pulled up in this general vicinity, stopped and got out of our car.
 Q  All right. How do you know he was under fire?
 A  Because I could hear the rifle shots.
{1845}
 Q  All right. And had he already transmitted anything between the two of you? Had you had any radio transmissions?
 A  Yes, sir. He told us he was under fire and for us to come up this way (indicating) because he knew that this would afford some protection. Not to get out into the open or where there was no protection.
 Q  So there were two reasons that you drew the conclusion that you did; is that right?
 A  Yes, sir.
 Q  Now, what if anything happened when you -- did you get out of your vehicle?
 A  I immediately got out of my vehicle and I proceeded to the top of this small rise right up along here on this side (indicating).
 Q  And what if anything happened within that period?
 A  Well, immediately upon reaching that rise there were rounds hitting not only around me but going for me.
 Q  All right. Now, could you tell generally the direction from whence the fire was coming?
 A  Yes, sir.
 Q  Would you point out to the jury the general direction it was coming from?
 A  Well, generally from this area right in here (indicating).
 Q  All right. Now, would you describe the nature of the fire that you observed and heard at that time.
{1846}
 A  Well, the condition to the rifle fire, there was some automatic rifle fire also.
 Q  All right. Now, when you say "automatic" are you differentiating, tell the jury when it is that you are indicating by automatic fire?
 A  Well, automatic fire would be similar to machine gun fire. It would be a rapid succession of shots as opposed to a single shot rifle or a semiautomatic rifle.
 Q  You served in the military prior to this time?
 A  Yes, sir, I have.
 Q  And have you been exposed to a number of types of fire?
 A  Yes, sir.
 Q  And you are generally familiar with the type of fire that you are referring to?
 A  Yes, sir.
 Q  Now, you wouldn't have any way of knowing specifically at that time, would you, Agent Waring, whether or not it was coming from an automatic, in a technical sense, rifle as different from a semiautomatic weapon in a technical sense?
 A  No, sir.
 Q  So what you are referring to then, it was rapid fire in layman's terms, is that what you are saying?
 A  Yes, sir.
 Q  All right. And that some of the fire was different, very different from the rest of the fire, is that a fair conclusion {1847} for me to make?
 A  Yes, it was.
 Q  All right. Now, what if anything, you might resume the stand, did any other persons appear or did you observe any other persons in the area at that time?
 A  Not at that time, sir. It was just myself, Agent Breci and Agent Adams. And there was an individual with Agent Adams, but I don't know who that was.
 Q  Now, what if anything did you do next? .
 A  Well, from that point, since it was obvious that we wouldn't see or I personally couldn't see anyone that was shooting at me, I did not return any fire at that point.
 I felt that the best course of action was to get back to my vehicle and get on the radio and assist other units that were enroute into the area.
 Q  Did you in fact do that then?
 A  Yes, I did, sir.
 Q  All right. Now, while you were in that position did you hear any other sounds that were distinct other than what you've indicated to the jury thus far?
 A  Yes, sir. After arriving into the area and hearing the rifle fire and the automatic rifle fire, I did hear a number of explosions in the distance to the west of my location.
 Q  All right. And would you indicate the general direction that you've indicated that you heard those explosions from where {1848} your position was.
 A  Well, they were to the west of my location.
 Q  Did you have any way of determining specifically where they had come from other than a general direction?
 A  No, sir.
 Q  All right. Do you have an opinion as to what they sounded like?
 A  Sounded like dynamite to me, sir.
 Q  Have you had experience in dealing with dynamite in the past?
 A  Yes, I have, sir.
 Q  And where, just in a general sense, on what occasions, what was the reason for that?
 A  Well, both in the military and also at the FBI Academy.
 Q  Did you have occasions in the, in your military experience to work with demolition?
 A  Yes, sir. I attended the U.S. Army demolition school in West Germany.
 Q  So this is something of which you have some unique knowledge, not just a general knowledge?
 A  No, sir.
 Q  All right. Now, what if anything happened next of any significance to you?
 A  Well, at that point we just stood by for a short while and then it was approximately between 12:30 to 1:00 P.M. that other {1849} agents started to arrive. And at that point also some BIA police officers had come into the area and were also arriving at that point.
 Q  All right. What if anything did you do with any of these other agents during this time?
 A  Well, myself, Dean Hughes and a number of BIA police officers decided that our best course of action would be to attempt to work ourselves to the rear of where we believed the firing was coming from.
 Our main purpose was to locate the exact position of SA Coler and Williams and to determine their status.
 Q  Now, did you know anything at this time other than what you've already told the jury concerning where they might be?
 A  No, sir.
 Q  Or what their status may be?
 A  I had no idea what their status was.
 Q  Other than the communications that you had heard over the transmitter by Agent Williams?
 A  That is correct.
 Q  All right. What if anything did your group then do?
 A  Well, after gathering there and just briefly setting forth the fact that we were going to work our way to the west to come up to the rear of the area where we believed the firing was coming from, we sat out from the position where I pointed to where I parked my vehicle and we proceeded several hundred yards {1850} in a westerly direction.
 Q  All right. Would you take the pointer now and again go to Government's Exhibit No. 71 and beginning with your position at your car would you indicate where it was then that you went, the route, the general route that you took showing on Government's Exhibit 71 where you can. And if there are places where you can't, showing approximately with relationship to the exhibit where it was you went.
 A  Okay, sir. After we got our group together we traveled back now over in this area, this little indication here for a dirt road (indicating). The ground is rather high right up along this road here (indicating). It is cut through which would afford some protection from anything that might come from this area. So we worked our way both across just the open ground here and down this road several hundred yards until we get down into the creek bed area.
 Q  All right. And let me ask you just a word or two. Once you got out of your car and went up to the area generally where Adams and his car was, would you describe to the jury what the general topography was, what you generally could see in looking to the south and to the east. Would you just, in general terms, tell them what the topography there was that you could observe from that point, and in return who could see you from those points at that point?
 A  Well, from in this general vicinity you can see basically {1851} everything coming across over to this, where this plateau would drop off right in here (indicating).
 See these residences, plowed field out here, Jumping Bull Hall, and some, some of this area coming down through here (indicating).
 Q  Now, could you see at all the area from where it indicates the edge of the plateau from there on down to the creek area?
 A  No, sir. From that out this direction the only thing you really can see are the tree tops that would border this low area down in here (indicating).
 Q  All right. That's other than, that's after you drop off the plateau itself?
 A  Yes, sir.
 Q  All right. Now, would you indicate then once you got to the stream, would you describe what the nature of the area was in terms of shrubs and so forth once you got to the stream area.
 A  Once we arrived down in here (indicating) it becomes very thick. The bushes are real thick and you're in ankle to knee deep water and a lot of mud and moss through here (indicating).
 Q  What's your general visibility in that area?
 A  It's not very far at that time. The bushes are thick in there.
 Q  This is the 26th of June; is that correct?
 A  Yes, sir.
 Q  What if anything did you do?
{1852}
 A  From that point, once we all arrived down in this area, we could still hear the sporadic firing coming back at that point we had been back up to the location from where we had just come from.
 We traveled down along maintaining a position in these trees and bushes and the creek bed and so forth, just to maintain some cover as we came down along this way.
 And while we traveled along this route we did continue to hear sporadic firing.
 Q  Now, as you traveled along that route could you see any of the open area that is represented by, on Government's Exhibit No. 71?
 A  Once you get down into here there is kind of a, I'd guess you call it just a creek bed or a high ground area that actually prevented me from seeing anything back up into this area (indicating).
 Q  So that along the creek itself it's a very steep dropoff, again generally speaking; is that correct?
 A  Yes, sir.
 Q  All right. Now, would you continue to trace for the jury where it was, the group, that you were in proceeded to.
 A  Well, after we --
 Q  And anything that happened as you proceeded.
 A  Okay. As we moved down along here we just continued around following the general outline of the trees in here. And {1853} we continued on to a point that brought us out right up in here (indicating).
 Q  All right. And where were you with relationship to the group you were with when you arrived at that point?
 A  Right at this point, sir. (indicating)?
 Q  Yes.
 A  Well, myself and Dean Hughes, we were more or less out in front of the group of BIA officers.
 Q  All right. I would like you to mark on Government's Exhibit 71 at this time, maybe with an Z-1, Z-1, where it was that you came out to the edge of the trees, the point which you're now talking about.
 A  This would be approximately?
 Q  Approximate location. I understand.
 A  (Indicating)
 Q  Now, what if anything happened at that time?
 A  Well, that was the first time in our group that actually come out of some tree cover and immediately upon moving into the open we had one shot that came into the group, or right past the group.
 Q  And could you tell approximately or what direction it had come from?
 A  Generally it was in from this direction (indicating), in this area toward us, we were on the low ground.
 Q  At about how far away were you in yards from the general {1854} area from whence the round came?
 A  I would say approximately a hundred yards.
 Q  All right. What if anything did you do at that time?
 A  I immediately, along with the rest of the group, just went down to the ground and went back into the tree cover and just tried to get as much cover as we could at that point.
 Q  All right. Now, what if anything happened next?
 A  Well, it was at that point that Agent Hughes and myself then discussed the fact that we wanted to work ourselves into a position since we were, we knew that the firing was generally coming from this area, we believed the green house here, out toward our original location.
 So we wanted to get into a position close enough so we could yell to the individuals in the green house, identify ourselves and then ask them to come out at that point.
 Q  All right. Now, from the time you had left over at your position in the general area of Highway 18 where you had left your car and traveled down to the creek area and then had generally followed the creek around to the point where you came out of the woods and the first shot was fired at you, had you seen at any time during that period of time any of the buildings or the area that you're now referring to? When was the first time that you saw any of the buildings that you're now referring to there on the top of the crest?
 A  It would have been right at the point where we came out of the tree cover. Right down here (indicating).
{1855}
 Q  So that if you generally followed the route you are following, you were in a position where you really literally couldn't see anything beyond, is that a fair conclusion on my part?
 A  That's correct, sir.
 Q  All right. Now, what, if anything, then did you do next?
 A  Well, at that point we began to kind of spread out along here (indicating), kind of a bank area where you can get down and it affords a little cover, towards the tree. Agent Hughes decided he would go forward to the green house in a position so when he yelled they would be able to hear.
 Q  Now, did anybody in your group return fire on this occasion when you first came out of the woods?
 A  When we received that warning coming around?
 Q  Yes.
 A  No, sir.
 Q  It was then that you made the plans that you referred to, is that right?
 A  That's correct, sir.
 Q  All right. Do you have any idea approximately what time of the day this was in period of time?
 A  We arrived at this location marked Z-1 at approximately 2:00 to 2:15 p.m., sir.
 Q  All right. Now, would you explain to the jury then what the plan was that was decided upon at that time with reference {1856} to any people that might be in the area of the houses?
 A  Well, Agent Hughes again was just going to go forward and identify the group, and what he did was he walked up, oh, within a hundred yards of the house and proceeded to yell at -- words to the effect, I can't get the exact wording, but the words to the effect, " me green house, you are surrounded by the FBI and BIA. Throw down your weapons. Surrender, no one will shoot."
 Q  All right, and did you at this time yet have any idea as to who the individuals might be or where Agent Williams or Agent Coler might or might not be?
 A  Not at that time, sir. In fact, Agent Dean Hughes had cautioned all of us in the group that since we didn't know where Agent Williams and Coler were, "Even if fired upon, don't just return fire unless you specifically see someone you are shooting at."
 Q  What, if anything, next then did in fact happen?
 A  Well, as soon as Agent Hughes completed yelling toward the green house, two individuals appeared right on this side of the green house (indicating), this green house right here, sir (indicating), and started firing rifles in our direction.
 Q  And what, if anything, happened next?
 A  Well, it was at that point when we had two individuals firing at us that our group returned fire.
 Q  All right, and did you hear anything yelled or anything {1857} said by anybody in the group at that time?
 #A  Yes, sir. After just a short exchange of gunfire, the individual to my right yelled, "I think I have hit one."
 Q  Did you know who that was at all?
 A  No, sir.
 Q  All right. m is was during the return of fire and the fire itself, is that right?
 A  It was during the exchange between that group and our group, yes, sir.
 Q  What, if anything, happened next?
 A  Well, at that point, shortly after the firing ceased, both the individuals were gone, one went around the house and one appeared to go down on the ground, so it was shortly thereafter that BIA Officer Del Eastman had worked his way into a tree; and then he called to me and asked me to join him in the tree because he wanted me to look at something.
 Q  All right, and what, if anything, did you then do?
 A  Well, at that point I got into a rather large tree, right in this general vicinity (indicating), and with the scope on my rifle -- he had pointed out to me a vehicle down here (indicating) should be approximately 200 to 250 yards from the green house -- and I looked through the scope and identified the vehicle as the white over gold Chevrolet that I knew to be Jack Coler's.
 Q  All right. Did you in fact then have a scope on your {1858} rifle, is that a fair conclusion for me to draw?
 A  Yes, sir, I did.
 Q  Was there anybody else to your knowledge that had a scope?
 A  Not with our group at that time, no, sir.
 Q  And do you know what the power of your scope was?
 A  No, sir.
 Q  All right. Now, would you mark on the map for me again approximately where you were when you climbed into the tree and made the sightings that you are now discussing with the jury would you just make a "Z-2" for me just in the general area?
 A  This has to be approximately, it would be right in this location (indicating).
 Q  Was it still in the trees themselves?
 A  Oh, yes, sir.
 Q  It was still in a position of concealment, is that right?
 A  Yes, sir.
 Q  All right, Now, what was it then that you observed that you have just now started to testify about?
 THE COURT:  I think before we get into that the Court will recess at this time until 3:40.
 (Recess taken.)
 (Defendant present.)
 THE COURT:  The jury may be brought in.
 (Whereupon, at 3:42 o'clock, p.m., the jury returned to the courtroom and the following further proceedings were {1859} had in the presence and hearing of the jury:)
 MR. HULTMAN:  May it please the Court?
 THE COURT:  You may proceed.
 Q  (By Mr. Hultman) Agent Waring, I believe when we recessed I had you up in a tree, as I recall, is that right, and you were about to make an observation --
 A  (Interrupting) Yes.
 Q  (Continuing) -- to the jury, and would you now tell us what it is that you saw at that time?
 MR. TAIKEFF:  Could we have the time of day just to give us the reference?
 MR. HULTMAN:  Approximately.
 A  Well, like I say, we arrived at Z-1 between 2:00 and 2:15. The exchange would have been now somewhere between 2:30 and 2:45.
 Q  (By Mr. Hultman) Is this just an approximation on your part though, you didn't look at your watch or anything during that time?
 A  No, sir. Both those times were just approximate times.
 Q  All right. O.k.
 Now, would you explain what, if anything, you saw at this time?
 $#A  Well, as I say, I was in an area right here at Z-2 (indicating), a rather large tree. I could hold the rifle steady at that point against the tree, look down range about 200 to {1860} 250 yards -- and there again it is approximate -- and I could see the white over gold Chevrolet; and I could identify it as Jack Coler's FBI vehicle, and I could see numerous bullet holes in the vehicle. I could see that the flashing emergency lights were on in the front, both of them flashing, and that the driver's -- the door was slightly open; and after surveying as much as I could see inside the vehicle from that location, plus the area around the vehicle, I didn't see anyone or anybody near it.
 Q  All right. Now, would you indicate to the jury with reference to where you are at this particular time, and I believe you had pointed out here somewhere in the general vicinity of Z-2 (indicating), would you tell the jury the approximate location and maybe move this little car that is called SA Coler's car, it is an object, a rectangle, would you point it in approximately, the approximate direction; and then tell the jury where the front of it was located with reference to where you were and where the houses up on the hill are?
 A  Well, generally the headlights on the vehicle would be pointed generally at this group of buildings right in here (indicating), identified as the white house and the green house and a little shed right up to it. Generally the car was pointed in that direction with the driver's door open.
 Q  Now, if you were seated in the car here (indicating), and observing up the hill and looking at you, in your relative {1861} position where you are, what would be the general direction from the car -- person at the car looking out through the windshield and looking at your position, your general position where you were -- in other words, just reverse them -- what would be the general direction that you would be from someone down at the car looking up at the car?
 A  At the location?
 Q  Looking at the location.
 A  Where I was at that time, sir?
 Q  Yes.
 A  Generally focusing right in this area right here (indicating).
 Q  Where would that be, front left, front right, front, what would be the relative position that you were from the car itself, if somebody was seated at the car and looking up the hill, where would your position be generally?
 A  It would be just to the right, to the driver's right in this car, I would be off to the right.
 Q  All right, very good.
 Now, you said you could see bullet holes, is that right?
 A  Yes, sir.
 Q  Is there any doubt in your mind at all then about that?
 A  No, sir. I told Agent Hughes and the other BIA officers that there were a number of bullet holes in the car.
 Q  So with your scope where you were looking at that car, you {1862} could see very clearly bullet holes, is that right?
 A  Yes, sir.
 Q  All right. Now, was there anything else about the car that you recall? I believe you said you identified it as being Agent Coler's car, is that right?
 A  Yes, sir. Like I said before, I had ridden in Agent Coler's car a number of times in the previous weeks to that date, and I knew it right away.
 Q  Did you see anything further at that time?
 A  Not at that time, no, sir, not down in this location (indicating).
 Q  Now, was the car in -- generally in the general location as it is shown at the present time on Government's Exhibit 71 with reference to the trails and the roads and so forth?
 A  Yes, sir.
 Q  All right. Now, had you up until the time that you got into the tree, had you seen a car there at all?
 A  No, sir.
 Q  And had anyone else brought this to your attention in your group from the time you left Highway 18 until somebody asked you to get in the tree?
 A  It wasn't until that point that we had actually seen any of the vehicles.
 Q  So for the first time that afternoon, other than radio broadcasts, you now knew that Agent Coler's car was in the area {1863} and where it was, is that correct?
 A  That 's the first time.
 Q  But did you still know anything about Agent Williams?
 A  No, not at that time.
 Q  Did you know anything about Agent Coler?
 A  Not at that time.
 Q  Other than what you had heard on the radio transmission?
 A  That's correct.
 Q  All right. Now, what, if anything, happened next as you recall?
 MR. TAIKEFF:  May the witness resume the stand, your Honor?
 MR. HULTMAN:  Yes, all right, you may. I think he is going to be back there very quickly though, counsel.
 A  It was at that point that while I was still looking down range at Agent Coler's car, that I heard an individual yell, "The man in the white shirt, throw down your gun, surrender," and at that point gunfire erupted again.
 Q  And where did the gunfire erupt from?
 A  Well, as I turned back toward the green house, I just caught a brief glimpse of an individual wearing a white shirt and that the gunfire was coming from him towards some of our people in our group.
 Q  All right. Now, what, if anything, happened next?
 A  Well, at that point, since my cover was not real good up {1864} there in the tree, I didn't return any fire at that point, and; I just jumped from the tree to the ground, and it was just a brief exchange of gunfire and then firing stopped.
 Q  All right, and what, if anything, happened next?
 A  Well, it was at that point Agent Hughes asked me to remain behind with some of the BIA officers at that particular location just to keep under observation the green house; and he stated that he and a couple of other people from the group were going to work their way down back from the direction we had come in the tree cover, back down so they could get closer to Agent Coler's car to see if they might be able to locate either Agent Coler or Agent Williams.
 Q  All right. Now, did you remain then in that general location back ln a position of cover?
 A  Yes, sir. We just stayed -- I just deployed officers along the bank, just so we could keep visual contact with the house, and we remained there for approximately 45 minutes.
 Q  And what, if anything -- was there any firing then that went on during that period of time, either at you or by anybody in your group?
 A  No, sir. At that time it was completely quiet throughout the area. I didn't hear any other gunshots at that point.
 Q  And what, if anything, then next came to your attention?
 A  Well, like I said, after staying there for about 45 minutes, Agent Hughes had come -- sent one of the group down to {1865} get us, and my entire group including myself, we worked our way back down the bank toward Agent Coler's car, and therefore, we left no one in the vicinity of the green house at that point.
 Q  All right. Would you with the pointer now again trace the general route that you took and where it was that you next stopped from the point you are now discussing?
 A  Well, we went from this general vicinity in here (indicating) back down along the bank, and we arrived at a location right here (indicating) in the corral area, right here approximately (indicating).
 Q  All right. Would you mark that with a Z-3 so that we will know where this approximate spot is?
 A  (Indicating).
 Q  All right. Now, would you resume the stand again, please?
 Now, when you traced along the creek here earlier and when you traced again -- and I believe your pointer went in this general area (indicating), would you tell us specifically on the ground what it was that you were following, if you did follow anything in particular; were you following the tree line itself or were you following some other object of some kind?
 A  Well, once we started working our way back down toward Agent Coler's car, we knew the general location of the car at that point so we could follow along, more or less see the tree line, and just follow it along, knowing that we could line ourselves up in the corral area and be relatively close to {1866} Agent Coler's car.
 Q  All right, but were you in a position as you went to that point you just marked as Z-3, where you could actually see, did you see the car as you went down that route?
 A  No, sir.
 Q  All right. You were in a position again deep enough where you had cover and concealment, is that right?
 A  Yes, sir.
 Q  All right, because you still didn't know what the situation was, is that right?
 A  That's correct, sir.
 Q  All right. Now, what happened when you got at the point which you have just marked -- and I believe it is in the general vicinity of the southerly of the two corrals that are marked at the bottom of Government’s Exhibit 71 -- what did you do, or what did you observe at the point you have just marked Z-3?
 A  Well, when I arrived there, Agent Hughes informed me that he had sent one of our group back to our original location on Highway 18 to get an additional radio since the radio we had initially brought with us, the batteries went dead on it and we had no communications with other agents; and then we just set up there and maintained a lookout point toward the green house and kept Agent Coler's car under observation.
 Q  Now, on the two occasions that you received fire, other than when you came out of the woods, I believe you indicated {1867} that there was three times you received fire:  One when you came out of the woods, the second time after Agent Hughes had made an announcement, and the third occasion was when somebody else made a specific reference -- would you describe the fire on those two last occasions, the nature of the fire itself that you received?
 A  Well, generally it was just rifle fire coming our direction.
 Q  All right, now, other than those occasions, did you receive any fire of any kind that you have testified to?
 A  No, sir.
 Q  All right. Now, tell us what, if anything, now you proceeded to do at the point, Z-3, what happened next?
{1868}
 A  At that point the group was more or less in a waiting posture since we needed to establish contact and find out what had transpired from the time we originally left until the time we were in the corral area since we had pretty much been out of touch without a radio.
 Then it got to be approximately 4:20 P.M. in the afternoon and we noticed an individual wearing a white shirt, t-shirt, come up in the area.
 Can I go back to the map?
 Q  Yes. Would you go back and maybe mark that now with a "Z4," whatever it was you saw and where it was.
 What was it that you observed at that time?
 **A  Right here at that point an individual came up from behind these vehicles wearing a white t-shirt (indicating). Immediately upon seeing him, he put his hands into the air over his head.
Q  Where you were pointing, can I mark a "Z4" at that particular spot?
 A  Yes, sir. Would have been right on this side (indicating).
 Q  And you observed that individual from where you were, is that correct?
 A  Yes, sir. This is low down here and this rises up towards the ridge right here (indicating). He was a little higher than ourselves.
 Q  Now you can resume the stand again.
 Tell us what if anything, did you notice anything {1869} about the individual? Could you describe the individual in any general way?
 A  Well, as he proceeded down the hill, Agent Hughes had again yelled to that individual to proceed to our location which at that point I'm sure was advisable to that individual since he walked directly towards us. As he came closer Agent Hughs identified the individual to me as Edgar Bear Runner.
 Q  And what if anything happened next?
A  Mr. Bear Runner just proceeded down to our location and stood just a few feet from Mr. Hughs and conversed with Agent Hughs.
 Q  And what if anything happened while they were there?
 A  Well, Mr. Bear Runner informed Agent Hughs that as he came past Agent Coler's car he saw two individuals lying on the driver's side of the vehicle, lying in the grass.
 Q  And was there anything else that was communicated or discussed there in your presence?
 A  Well, Agent Hughs inquired of Mr. Bear Runner how he had been allowed to come into the area. Mr. Bear Runner said, "They let me into the area to negotiate with the people firing from the green house."
Q  And what if anything else took place?
 A  Well, Agent Hughs instructed Mr. Bear Runner to proceed back to the FBI vehicle and it was pointed out to them which car we meant and to get the status of the individuals lying in {1870} the grass, which we couldn't see since it was on the away side from our location.
 Q  Was this the first time anybody in your group to your knowledge learned of the whereabouts or possible whereabouts now of Agent Williams or Agent Coler?
 A  Right at that point. That's one of the reasons we wanted Mr. Bear Runner to check the individuals because we weren't sure at that point that it was Agent Williams and Agent Coler lying next to the FBI vehicles.
 Q  All you knew was what he told you, that there were two individuals there?
 A  Yes, sir.
 Q  Did he tell you whether they were dead or alive?
 A  All he indicated was they hadn't moved or said anything and he passed on foot relatively close to the vehicle and came to our location.
 Q  So what if anything happened next?
 A  Mr. Hughs agreed that Mr. Bear Runner should go up and attempt to negotiate with the people from those houses that were firing. First he wanted him to check on the two individuals at the FBI vehicle. So we asked him to do that and Mr. Bear Runner proceeded to the vehicles, still with his hands raised, and walked to the driver's side of the vehicle, just stood there for a brief moment and then turned and proceeded directly across the field up to the residences located on the {1871} plateau.
 Q  And did he make any signs or yell back or anything concerning what he had seen and observed there at that point?
 A  No, sir.
 Q  Now what if anything happened next?
 A  Well, at that point I just continued to observe Mr. Bear Runner and he walked up on the plateau and stood in the general vicinity of the green house still with his hands raised and he just stood there for a few minutes. He then proceeded to walk back out in the direction that would bring you out, on the map out toward Jumping Hall or out toward our original Location.
 Q  And did he disappear at some point from your view then?
 A  Yes, sir.
 Q  Now during this time did you see any other individuals other than the person whom Mr. Hughs had said and identified as Mr. Bear Runner?
 A  No, sir.
 Q  Now what if anything was the next thing that you recall?
 A  Well, again since Mr. Bear Runner hadn't mentioned the status of those two individuals, we still weren't sure of who they were and it was just a short time later and Mr. Bear Runner again appeared from that same location that is marked "Z4" and this time he was accompanied by a second individual.
 Q  And what if anything happened next?
{1872}
 A  Well, the second individual just came right out and never stopped. They walked right out into the open and continued and walked directly to Agent Coler's car.
 *&Q  What if anything did anybody in your group do?
A  Well, I knew the one individual was again Mr. Bear Runner and the second individual was identified as the commissioner.
 Q  Who was it that identified him to you?
 A  Was Agent Hughs.
 Q  He evidently then, as far as what you heard at that time, obviously knew both the individuals. Was that a conclusion you drew, he knew who they were?
 A  Yes, sir.
 Q  What if anything happened next?
 A  It was at that point that Agent Hughs and BIA officer Eastman decided that they would walk to the bureau vehicle and meet with Mr. Bear Runner and this individual known as commissioner. Agent Hughs felt we needed to find out who was lying next to the bureau car.
 Q  Now did Agent Hughs do anything with relationship to himself and the other gentlemen when they went to the car? A Yes. Briefly just before they walked out into the open it was suggested that their weapons be lowered at arm's length to the ground so anybody observing them from elsewhere wouldn't think they were going out there for any other reason but to just look at the vehicle and meet with Mr. Bear Runner.
{1873}
 Q  And what if anything happened next?
 A  Well, Agent Hughs and the BIA officer walked to the car. They went to the driver's side, they stood there for just a few moments and then proceeded back to our location. Then Agent Hughs arrived back at the location he told me that the individuals lying there were Agent Williams and Agent Coler and both Agents had been shot a number of times and that both were dead.
 Q  And what if anything happened next?
 A  Well, it was at this point that both Mr. Bear Runner and commissioner walked out of the area again in the general vicinity of the residences and just continued over the top of the plateau to where I couldn't see them anymore.
 Q  Now what if anything did your group do next?
 A  Well, again we were still maintaining just a waiting posture until shortly after learning the status of the two agents.
 Additional individuals started arriving at our location. Again had taken us the same route that I had taken initially into the area and there we met some additional gents from the Minneapolis division. There was some South Dakota Highway Patrol officers and I believe there was some sheriff's deputies also in the group.
 We then had a radio and we communicated with the other {1874} FBI agents in the area.
 Q  Now you mentioned who these individuals, the make-up of these individuals. Were any of the agents -- by the way, are you S.W.A.T. trained?
 A  No, sir.
 Q  Were any of the individuals, the agents who happened to join your group at that time, do you know from your own knowledge whether they are S.W.A.T. trained?
 A  There was a couple agents there; yes, sir. Was there any S.W.A.T. unit as such that joined you at that particular time?
 A  I couldn't say if they were units since they were from Minneapolis division and I don't know all the agents in the Minneapolis division.
 Q  But these are people who have arrived on the scene sometime after you had left up at Highway 18, is that right? Had you seen any of these individuals?
 A  Yes, sir. The time now was past the point 4:20 P.M. when Mr. Bear Runner first appeared and we had left that position sometime approximately between 12:30 and 1:00 P.M.
 Q  Now what if anything did you do next?
 A  Well, shortly thereafter that Agent Hughs conferred on the radio with other agents and it was decided since we now knew the fate of Agent Williams and Coler that our next thing to do would be to get people in the green house to stop {1875} firing on us. We'd have to get up there and secure the area.
 Q  Now were these agents that you saw at this time, had they been working on the reservation at all the day before, to your knowledge?
 A  Not the ones that had arrived from Minneapolis; no, sir.
 Q  Now what if anything happened next?
 A  Well, it was decided when we had a short conference there that at approximately 5:50 P.M. we would coordinate and advance and go on up toward the green residence and see if there was anyone still in there that would shoot at us. The idea was to secure that area and stop the firing.
 Q  And would you describe what happened next?
 A  Well, one group was sent back up toward our location.
 Can I go to the map?
 Q  Yes.
 A  Some of the groups just went back down this area and it was decided they would go into the general vicinity I previously marked "Z2." They would go up toward the green house and the rest of our group would just come across the open field (indicating).
 Q  And were some of the individuals that you just referred to in the group that went up to the general location where you had been earlier that you pointed out just now on the map?
 A  Right here, sir, (indicating).
 Q  Now what if anything then happened?
{1876}
 If you stay there I think you could probably better describe it from Government Exhibit 71. What then happened at a given time or approximate time later that afternoon? A  Well, it was decided that at 5:50 P.M. that we would, both groups would start to move toward the green house simultaneously. We felt that that would be the best way to secure the area with the minimum amount of problem.
 Q  And would you describe what took place.
 A  Well, I was instructed by Agent Hughs at this point, since I had the only rifle with a scope on it, to just stay back here at the corral area (indicating) and just look from the general vicinity of the plateau and just cover these people that we're going to move up toward the green house out across the open field. He said only to fire if some individual appears here to fire on our people.
 Q  And what if anything then happened next?
 A  As these individuals started up towards the green house and these people went across the field, I really wasn't in a position any longer to fire since they would have started to get into my area of fire. So I then started out across the open field to join them up here on the plateau (indicating).
 Q  What if anything happened next?
 A  I got about approximately in the middle of the field and there was also a sheriff's deputy with me at that time when {1877} rounds started coming in over our head. So at that point I just got down on the ground and there is some high ground over in here that affords a little bit of cover (indicating) and that's where I went to.
 Q  And what if anything happened next?
 A  Well, shortly after that the rest of the individuals in the group arrived on top of the plateau. They searched the building that was determined that the area was secure and the rest of us walked up toward the plateau and arrived in the vicinity of these buildings right in here (indicating).
 Q  All right.
 As the group that was at the point of the trees, the other group different from the one you were in that you were coming from the corral area, was there any firing that took place as that group approached the green house?
{1878}
 A  Yes, sir, there was some firing.
 Q  All right. And from whom was the firing from the group itself?
 A  As best as I could see there were some individuals in our group firing, yes, sir.
 Q  All right. Now, had there been anything done in terms of preparing to move to the top of the hill in terms of any other activity by anyone?
 A  Just our two groups at that point, sir.
 Q  All right. Was there any action taken with reference to doing anything in terms of making the opportunity to neutralize the hill in any way, if you recall anything?
A  Talking about the plateau, sir?
 Q  Yes. The people who may or may not have been there at that time.
 A  The idea was to get up there as quick as possible with as little shooting as possible to just secure those people.
 Q  All right. Now, what if anything then happened next?
 A  Well, as I arrived, and I kind of, I was trailing most of the people at; that point since I had been the last one to leave my position, when I arrived up on the plateau I notice that there was a dead Indian male right at this point right here (indicating) who was later identified to me as Joseph Stuntz.
 Q  All right. Now, would you indicate with your pointer so the the members of the jury will know and maybe we can then mark {1879} that, you pointed to the house, I believe the green house; is that right?
 A  Yes, sir.
 Q  And would you tell the jury where specifically with relationship to the green house did you see a body which later was identified to you as Joe Stuntz? Where did you first see the body?
 A  Well, it would be right where there is a point right here (indicating), I would call it northeast corner of the house.
 Q  All right. And it is, is there some kind of a marking there at the present time, a small circle or something --
 A  Yes, sir.
 Q  So that would be the spot at the northeast corner is where you first observed the body, right.
 Now, would you describe to the jury what if anything that you noted about the person that you saw at that time.
 A  Well, I noted that he was an Indian male, and that he had on blue jeans and a dark fatigue jacket with the letters FBI stamped over the pocket.
 Q  Let me ask you, in looking at the person and what he had on and directing your attention specifically to the objects that you have just described, have you seen objects of that kind before?
 A  The FBI jacket, sir?
 Q  Yes.
{1880}
 A  Yes, I have, sir.
 Q  And so you are familiar with them; is that right?
 A  Yes, sir.
 Q  Would you indicate to the jury what that jacket represents, where you've seen it before?
 A  Those jackets are normally issued to members of the FBI S.W.A.T. teams.
 Q  All right. And I'm going to show you now what has been marked and introduced, been marked but has not been introduced into evidence yet, as Government's Exhibit No. 23.
 And ask you to look at that exhibit and then tell me whether or not you recognize the scene that is portrayed there.
 A  That would be the Indian male that I saw lying there who was again later identified to me as Joseph Stunts.
 Q  All right. And is that generally what you observed at the time you're now referring to as far as the body itself?
 A  Yes, sir. When I saw the body it was faced up.
 Q  All right.
 MR. HULTMAN:  The Government at this time, Your Honor, would move to introduce Government's Exhibit No. 23 into evidence.
 MR. TAIKEFF:  No objection, Your Honor.
 THE COURT:  Exhibit 23 is received.
 Q  (By Mr. Hultman) Now, I will direct your attention to that exhibit and maybe you can indicate to the jury where it is {1881} the marking that you referred to as the FBI that was identifiable to you at that time if you can on this Government exhibit.
 A  Be over the left breast pocket.
 Q  Now, what if anything happened next?
 A  Well, shortly after believing that the area was secured there was one more round of rifle fire, into the area and it hit something in the area, a building or something. But we did take cover and then we just waited a few moments. No fire was returned since we had no idea of the direction the bullet had come from, and then after that Agent Hughes said that the area was secure and asked me to proceed back down toward Agent Coler to assist in the crime scene search.
 Q  All right. And what if anything did you do then?
 A  Well, at that point I just started back down across the open field toward Agent Coler's car to assist other agents in gathering evidence at the crime scene.
 Q  All right. I'm going to show you now what has been marked here as Government's Exhibit No. 6-A and ask you first, before I show you the exhibit, when was it that you first observed the agents, if you observed the agents in or about the car of Mr. Coler, of Agent Coler?
 A  Well, I stopped briefly at the car when I had moved out to go up toward the green house, just to stop there for a moment for cover. I noted that the two agents were lying there in the grass and then I continued on. And then it was when I {1882} came back down from the plateau that I then took a look at the bodies.
 Q  All right. So that when you moved from the corral to go, the group you were in, to go to the houses on the high ground, you stated in earlier testimony that you went to the general car area as a position. You moved out to that point; is that right?
 A  I went from Z-3 to the car and then up toward the green house.
 Q  Now, did you at that time see the bodies and observe the bodies?
 A  Just briefly as I went past them.
 Q  All right. So you did in fact see them at that time?
 A  Yes, sir.
 Q  All right. I'm going to show you what is now marked as Government's Exhibit 6-A and ask you whether or not you've seen the scene that is portrayed in that exhibit before?
 A  Yes, sir, I have.
 Q  And would you tell the jury when it was that you first saw the scene that's portrayed there.
 A  Would have been on the afternoon of June 26, 1975.
 Q  And what time in your testimony that you have given would that have been?
 A  It would have been shortly after 5:50 P.M.
 Q  All right. Now, at the time you went up the hill and made {1883} this stop at the, at Coler's car as a position stop to you, did you observe the bodies in a general configuration as is generally shown on Exhibit 6-A?
 A  Yes, sir.
 Q  With relationship to the automobile portrayed there?
 A  Yes, sir.
 Q  And were they, were the bodies face down and in a general posture that they are here?
 A  Yes, sir.
 Q  All right. Now, when you then returned back down the hill at the point in time where you have now taken us, did you observe the bodies with relationship to the car in the same general posture and position as represented by Government's Exhibit 6-A
 A  Yes, I did, sir.
 Q  All right. Now, would you describe then now, and I'm going to show you what has been previously marked and introduced here as Government's Exhibit Series 54, and I'm going to have you first look at the scene that is portrayed by Government's Exhibit 54, page 1, and ask you if that is the general, again description, of the location of the automobile, the general condition of the automobile and the positions of the body as you first observed them when you first came out of the woods marking at the point Z-3 and moved to the general area of Agent Coler's car?
 A  Yes, it is.
{1884}
 Q  All right. Was the hood up, the rear hood, the trunk hood?
 A  The trunk lid was up, yes, sir.
 Q  And was the left driver's door open?
 A  Yes, it was, sir.
 Q  As observed here; is that right?
 A  Yes, sir.
 Q  Now, I would also ask you to look at page 4 and ask you if the scene you saw at that time is generally portrayed as it is on Government's Exhibit 4?
 A  Yes, it is, sir.
 Q  From a different angle?
 A  Yes, sir.
 Q  All right. And I'm going to ask you the same thing with reference to page 8 of that particular exhibit.
 A  Yes, sir.
 Q  All right. That's looking at it from another side; is that correct?
 A  Looking at it from the passenger's side, or the front passenger's side.
 Q  All right. And I'm going to ask you to look at No. 9 and ask you if that view likewise portrays what you generally saw at that time?
 A  Yes, sir.
 Q  Now, I'm going to ask you at this time to look at Government's {1885} Exhibit 9 and to tell the jury what it is you can see in the background, and if in fact you remember that you could see standing in the background, or at the rear of the trunk of Agent Coler's car the objects that can be seen in the background of this photo?
 A  Well, you can see the green house on the plateau.
 Q  And is it shown on this particular photo?
 A  Yes, sir. It's right here (indicating).
 Q  And is it marked on there in some way?
 A  I don't know if it's 27 or Z-7.
 Q  Well, let's call it Z-7 for the moment since we've been in a series. Is that the green house that you've been talking about and the green house that's represented on Government's Exhibit 71?
 A  Yes, sir.
 Q  All right. And I'm going to take you to the left of the green house as you are looking up the hill and indicate whether or not you can see anything else in a general --
 A  Yes, sir. There's a, well, you can see in to the side of the hill. There's kind of a, I don't know what you call it, it's a potato cellar or something. It's just a storage place built into the side of the hill.
 Q  And beyond that in the crest of the hill you can see other objects?
 A  Yes, sir. There's another residence up there.
{1886}
 Q  And are there any other objects in and about the residence in terms of any vegetation of any kind?
 A  There's some trees.
 Q  All right. Now, let me take you to the right-hand corner of the picture and ask you if you from your own knowledge and |where you had been at the time on the days that you've been referring to here in testimony, do you recognize anything there?
 A  Yes, sir. Right over here there is, you can just make out a couple of abandoned vehicles, junked vehicles, and there's a large tree. And there's kind of a dirt road that runs right in through here (indicating).
 Q  Is the picture itself cut right in the vehicles? Is that the --
 A  Yes, sir. Basically on the other side of the abandoned vehicles is pretty much the back area where you drop down into vegetation.
 Q  As you are looking at that photo then would you indicate where the right-hand side of the picture is with reference to Government’s Exhibit 71 and where you might have been at any time during the day.
 A  Well, this just shows, this would be where the abandoned vehicles are right in here (indicating). That's at both Z-1 and Z-2.
 Q  And does that photograph show some of the trees that are {1887} in that very corner that you've referred to in testimony?
 A  Yes, sir. They'd be right into, right where the road comes together right here (indicating).
 Q  All right. I'm going to go back and show you Exhibit page number 1 of Government's Exhibit 54 which we've been discussing, and I want to ask you there, can you from that, looking from the rear trunk of the vehicle likewise see the area that you've just now been discussing?
 A  Yes, sir. You can see the, where the road comes together, the large tree and the abandoned vehicles also.
 Q  All right. And so is it fair for me to conclude then in Government's Exhibit No., picture 1 in this exhibit, that you can see even more of the tree area that you've just described on Government's Exhibit 71?
 A  Yes, sir.
 Q  All right. Now, when you got back to the vehicle itself were, tell us what you did once you arrived back at the vehicle.
 A  When I arrived back down at the vehicle I assisted other agents in the crime scene search in the area immediately surrounding Agent Coler's vehicle.
 Q  All right. And would you explain to the jury what if anything did you find on that occasion and maybe we could take them one at a time.
 A  Well, I found a number of items, some of which where we found some automobile lens --
{1888}
 Q  Let's take them one at a time, all right?
 You found some, what was it again?
 A  It was automobile glass, or it would be from either your turning lens or from your directional signal.
 Q  And would you describe to the jury what those items were and where they were found.
 A  They were found just to the front of Agent Coler's vehicle lying in the dirt. Just some pieces of lens.
 Q  All right. And would you point out to the jury on Government's Exhibit 71 with relationship to where Agent Coler's car was approximately with relationship to the trail there where it was that you found the objects you've now described.
{1889}
 A  Well, it would have been just about 10 feet in front of the car, generally up to that little -- there is indicated a road, it is more of a path out there, distinguishable as such.
 Q  I am going to show you now what has been marked as Government's Exhibit 14-A and ask you to take a look at it and see whether or not you recognize anything therein?
 A  Yes, sir. (Examining) This would be pieces of lens that were found on the 26th of June, '75.
 MR. HULTMAN:  All right. These have already been introduced into evidence so I will not reoffer them at this time, your Honor.
 Then was there anything else -- these have not been offered, I am sorry. I would at this time offer into evidence Government's Exhibit 14-A.
 (Counsel examine exhibit.)
 MR. TAIKEFF:  No objection.
 THE COURT:  14-A is received.
 (Plaintiff's Exhibit No. 14-A, having been previously duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Hultman) Now, Agent Waring, was there any other items that you found at this time and place to which you are now testifying?
 A  Yes, sir. There was a .38 shell casing.
 Q  And would you indicate where those three .08 shell casings {1890} that you found --
 MR. TAIKEFF:  (Interrupting) Your Honor, I believe the answer was ".38", and the question said, "3.08".
 MR. HULTMAN:  I am sorry if it was .38, I am sorry. Whatever it was you indicated.
 A  I believe it was a .38. At this time I would have to see the various items that were picked up in order to identify them.
 Q  (By Mr. Hultman) All right. I am going to show you what has been marked as Government's Exhibit 31-E, and ask you whether or not -- to examine it and look at it, and see whether or not you have seen that object before?
 A  (Examining) Yes, sir.
 Q  All right. Would you describe to the jury what it is and how it is you recognized it?
 A  Well, it says right on the back, it says:  .38 Special Plus P Ammunition, and my initials are on this card showing that when we found it, I initialed the card as being one of the agents that found the shell.
 Q  Would you indicate to the jury where it was that you found this particular casing?
 A  At this time I have to refresh my memory. I believe it was in the area of the bodies.
 Q  All right. Did -- was it then marked and then put through the process that you normally follow in terms of identification and the keeping of evidence?
{1891}
 A  Yes, sir.
 Q  And is the marking on it that you do recognize as being the casing that you found on that occasion, is that right?
 A  Yes, sir.
 MR. HULTMAN:  The Government would offer Government's Exhibit 31-E.
 MR. TAIKEFF:  May I see it? I am stepping forward to see the exhibit if I may, your Honor?
 THE COURT:  You may.
 (Counsel examine document.)
 MR. TAIKEFF:  No objection.
 THE COURT:  31-E is received.
 (Plaintiff's Exhibit No. 31-E, having been previously duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Hultman) All right. I will show you now what has been marked as Government's Exhibit 36-B, and -- (confers with counsel) -- show you 36-B, and ask you to look at it and to tell us whether or not you have seen that object that's contained therein before?
 A  Yes, sir. It is a 12 gauge shotgun cartridge, and it was located in the vicinity of the right rear tire of Agent Coler's car.
 Q  And was that round expended or was it a non-expended round?
 A  It is an expended round, it had been fired and ejected. {1892}
 Q  All right, and did you follow the same procedures on that occasion as you have indicated previously?
 A  Yes, sir.
 MR. HULTMAN:  All right. The Government would offer into evidence Government's Exhibit 36-B.
 MR. TAIKEFF:  No objection.
 THE COURT:  36-B is received.
 (Plaintiff's Exhibit No. 36-B, having been previously duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Hultman) I am going to show you what has been marked as Government's Exhibit 30-B. Again I will have you take it and analyze it, and then I will ask you some questions about it.
 A  (Examining) It is a 3.08 expended cartridge.
 Q  And do you recognize it?
 A  Yes, sir.
 Q  And where was it that you first saw this cartridge, casing, cartridge casing?
 A  I believe it was in the rear of the vehicle, sir. At that time that would be to the best of my recollection at this point
 Q  All right. Was it in the general vicinity?
 A  It was lying just immediately adjacent to the vehicle, to the rear.
 Q  Did you proceed to do the same things with reference to {1893} Exhibit 30-B as you did with reference to other exhibits that you have testified to?
 A  Yes, sir.
 MR. HULTMAN:  The Government will offer into evidence Government Exhibit 30-B.
 MR. TAIKEFF:  No objection.
 THE COURT:  30-B is received.
 (Plaintiff's Exhibit No. 30-B, having been previously duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Hultman) Did you have an occasion, while you were there, to look at the automobile itself?
 A  Yes, I did, sir.
 Q  And would you give a general description to the jury concerning the observations that you just made generally about the automobile?
 A  Well, there were a number of bullet holes in the vehicle, and some that I noticed in particular were a couple of bullet holes in the trunk lid which -- it was raised, and there was some bullet holes in there, and there were also some bullet holes on the right rear area of the vehicle.
 Q  I want to show you what has now been marked as Government's Exhibit 57, and in particular Page 15, which shows a general area which is of the automobile, and also Pages 15, Pages 16, and ask you whether or not you recognize the general areas that {1894} are portrayed there, Page 15 and Page 16?
 A  (Examining) Yes, sir. That would be the right rear area, and also the raised trunk lid.
 Q  All right, and also Page 17 and 18, is that right?
 A  Yes, sir.
 Q  And those are described generally as the pictures of the area we are talking about, is that right?
 A  Yes, sir.
 Q  Now, do you remember anything in general about those areas of that particular car?
 A  Well, I noticed, like I said earlier, the two rounds that came through the trunk lid made rather a large openings, and some of the holes in the right rear area were -- seemed to be smaller than the ones in the trunk.
 Q  Now, when you are referring to the right rear area, to what general area are you referring to as far as the vehicle that was there, Agent Coler's vehicle?
 A  From the panel, from the rear door on the back toward the bumper, rear bumper.
 Q  All right, and do you recall anything about the relative size of any of the holes that you observed at that time and place?
 A  Yes, sir. The ones in the rear panel, the right rear panel, seemed to be smaller, as I stated earlier. The ones in the trunk had left rather large openings in the metal as they {1895} came through.
 Q  You didn't analyze them in any particular way at that time, is that right?
 A  No, sir. We were more concerned in just counting them and kind of looking at them.
 Q  All right. Now, did you have an occasion to later return to the general area represented by the Jumping Bull ranch as it has been referred to in earlier testimony which is Government's Exhibit 71, did you come back at a later time?
 A  Yes, sir. On June the 28th I came back through what is commonly referred to as the shooting crime scene area.
 Q  And what, if anything, did you do on that occasion?
 A  Well, there was a number of individuals with me, and I was taking them through the area since I had been there on the 26th of June, and as we went along, we were looking for evidence and anything that might come to our attention at that point.
 Q  Now, I am going to ask you to direct your attention on Government's Exhibit 71, the area that you have talked about before and specific objects that you have discussed before, some abandoned automobiles or a general area where there are abandoned automobiles, and ask you whether or not you did any search in that area on that day?
 A  Yes, I did, sir.
 Q  All right. Would you describe to the jury what it was you did?
{1896}
 A  Well, I will go to the map.
 Q  All right.
 A  As I walked along down through this area in here (indicating), I noticed ten 30.06 shell casings. They were all expended rounds, and it was obvious they hadn't been there very long since they were relatively shiny or brassy looking, hadn't been on the ground very long.
 Q  And did you make then a general search in and about and around the automobiles that were there at that time?
 A  Yes, sir.
 Q  And was -- where was it that you found the items to which you have just been referring with reference to any abandoned cars that were in that area, or junk car?
 A  Well, as you stand behind the last car in line --
 Q  (Interrupting) In what direction you are saying, "the last"?
 A  Faced to the trunk, it would have been on the left rear of the vehicle.
 Q  All right. Would you on the map, maybe even on the photograph, might be even a little easier, we have discussed a little earlier Government's Exhibit 54; and in viewing from the rear, a photo taken from the rear of Agent Coler's car, and you can see the scene which you have previously testified to -- would you indicate to the jury on that photograph where it was approximately that you made the finding that you have just {1897} testified to?
 A  It would have been in the car, in line with the other abandoned vehicles. It would have been the one at the farthest point from Agent Coler's car.
 Q  All right, so if you are looking then here at Government's Exhibit 73, it would be the car farthest that you just testified -- would be this car in this general area, is that right?
 A  Yes, sir.
 Q  And where with relationship to that car then did you make the finding that you have just been testifying to?
 A  They were just to the left rear of the vehicle as you faced into it, to the trunk, and they were lying about a foot away from the back of the car.
 Q  All right. Would you tell us what relationship to this trial that runs along here (indicating), which way the car was facing, which way was the front and which way was the bank or the rear of the vehicle, so that the jury may know?
 A  Well, the rear was facing -- well, put the back toward the green house, and the front of it was down toward the bank area, the trees.
 Q  So then would you point out where it was that you found the casings you are referring to?
 A  Right there (indicating).
 Q  And do you remember anything about what kind of a car this was in any way?
{1898}
 A  At this time it is just a junked vehicle.
 Q  If you don't, all right.
{1899}
 Q  Now I'm going to show you what's been marked as Government Exhibit 29E as in echo and ask you whether or not you examined those items that are in 29 echo and tell the jury whether or not you recognize them.
 A  Yes, sir. These would be the cartridges that were found by myself in the area I just described.
 Q  And did you go through the same procedures that you have described before here?
 A  Yes.
 Q  With reference to that particular exhibit?
 A  Yes, sir.
 Q  And I believe you indicated that they were bright and shiny and so forth.
 A  At the time I picked them up; yes, sir.
 MR. HULTMAN:  The government at this time would offer into evidence Government's Exhibit 29E.
 MR. TAIKEFF:  No objection, Your Honor.
 THE COURT:  29E is received.
 Q  (By Mr. Hultman) With reference to 29E, I notice that you indicated on testimony to the jury that you had found ten rounds there, is that right?
 A  That's correct.
 Q  And I want you to examine the rounds themselves and tell the jury how many rounds are physically there.
 A  When I counted them there was nine.
{1900}
 Q  All right.
 And do you know of any reason why now there are nine rather than ten which you found? Your own knowledge.
 A  No, sir.  When I turned them in there was ten and they went to the laboratory personnel.
 Q  Is it general procedure that they don't necessarily return after examination all of a group of rounds?
 MR. TAIKEFF:  Objection to the leading.
 THE COURT:  Sustained. There's no foundation there.
 Q  (By Mr. Hultman) Do you know of any reason from your own knowledge in handling evidence of this kind and nature as to why there could be nine rounds rather than ten in the return?
 MR. HULTMAN:  Your Honor, I intend to connect it up later.
 A  The best of my knowledge, sir, there was ten 306 rounds turned in.
 Q  All right.
 MR. HULTMAN:  I have no further questions.
 MR. TAIKEFF:  May I inquire?
 THE COURT:  You may.