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

MR. CROOKS:  If it please the Court, the United States will call as its next witness Mr. Ken Griffiths.
MR. SIKMA:  Your Honor, Government Exhibit 62 has been admitted into evidence. I would request that while we're waiting for the witness we show these to the jury.
THE COURT:  That's those pictures?
MR. SIKMA:  Yes, Your Honor.
THE COURT:  You may.
(Exhibit 62 presented to the jury.)
MR. CROOKS:  Your Honor, could Mr. Griffiths now take the stand?
THE COURT:  You may take the stand.
{2217}
 KEN GRIFFITHS
being first duly sworn, testified as follows:
 DIRECT EXAMINATION
BY MR. CROOKS
Q  Mr. Griffiths, could you again give your full name for the record, please.
A  Kenneth Thompson Griffiths.
Q  Where do you live, Mr. Griffiths?
A  Route 2, Box 404 Ontario, Oregon.
Q  What's your present occupation?
A  I drive for Pacific Intermountain Express.
Q  Is that a local truck line in the Ontario, Oregon area?
A  No. It's a nationwide common carrier.
Q  Generally in what areas do you drive?
A  I drive in the northwest.
Q  So it would be over the northwest part of the United States covered by Exhibit 70?
A  I drive Oregon, Washington.
Q  Oregon and Washington principally?
A  Yes.
Q  Calling your attention back to November 14 of 1975, what was your occupation at that time?
A  I worked on the Oregon State Police.
Q  And what was your official title at that time?
A  I was a trooper.
Q  And how long had you been with the Oregon Police in {2218} November of 1975?
A  Seven and a half years.
Q  When did you resign from the Oregon State Troopers?
A  March 15, 1976.
Q  So it would be six months or so after November 14?
A  That's right.
Q  On the 14th day of November, 1975, calling your attention to the late evening hours of that day, what was your duty, what duty were you on?
A  I was assigned to traffic and I was operating radar on interstate 80 North, west of Ontario.
Q  Were you parked on the highway itself?
A  Yes. On the shoulder.
Q  And which highway was that again?
A  Interstate 80 North.
Q  When you say an interstate highway, that is a four laned highway with a divider in the middle, would that be a correct characterization?
A  That's right.
Q  And approximately where were you located when the events that we're going to go into first started?
A  Approximately milepost 374.
Q  Now there's a map of northwestern United States which includes the Ontario, Oregon area. I'm pointing out now some {2219} orange dots which are depicting Ontario. Would you take the pointer and indicate where from Ontario it was the milepost that you were posted?
A  A short distance northwest of Ontario. Four or five miles.
Q  Now you can take your seat again.
When you were posted at that point, what if anything did you observe that has a bearing on what we're now going into?
A  I observed two motor homes and a white station wagon proceed east past me, my location.
Q  Now at that point when the motor home and the station wagon passed you, did you pay any particular note to them?
A  Yes, I did.
Q  Why was that?
A  A short time earlier I had read a teletype, all points bulletin indicating to watch for these vehicles, vehicles of similar description.
Q  When you say a teletype or an all points bulletin, do you know who had disseminated the all points bulletin?
A  Federal Bureau of Investigation, Portland.
Q  It would have been something that had come in through in the normal transmissions or information that you would have had as a state patrolman received?
A  That's right.
{2220}
Q  And you then recall the information, as I understand it, when you saw these vehicles go by?
A  That's right.
Q  Now I will show you what has been marked and not yet received into evidence as Government's Exhibit No. 61 and ask if you can identify the vehicles that are depicted in those photographs?
A  Yes, I can.
Q  Are those in fact the vehicles that you observed going by?
A  Yes, they are.
Q  Now with regard to the all points bulletin, do you recall whether or not a license plate on one or both of the vehicles was given?
A  I can't recall without referring to notes.
Q  In any event, when the vehicles were ultimately stopped by you, I would call your attention to photograph number B and ask if that in fact was the license number of the vehicle you stopped?
A  I believe it was; yes.
Q  Now insofar as these two vehicles were concerned, you said they went by your position and then you did something. What did you do?
A  Well, I left the position I was parked on alongside the road and gradually overtook the vehicles.
{2221}
Q  And did you make any radio transmissions then prior to stopping the vehicles?
A  Yes, I did.
Q  Who was this to or what was the purpose of these transmissions?
A  Well, as soon as I got close to, close enough to the vehicles to read the license numbers, I radioed the State Police Office in Ontario, advised them what I had and had them verify as to whether this was the same license number on the teletype.
Q  Was that information relayed back to you?
A  Yes, it was.
Q  And was it the same license number?
A  Yes, it was.
Q  Then did you ask for any assistance?
A  I did.
Q  And was there a response to that?
A  Yes, there was.
Q  Who did your dispatcher indicate would be there to give you assistance?
A  Corporal Clayton Kramer.
Q  Prior to stopping the vehicle, did you then have radio contact or communication with Corporal Kramer as best you can recall?
A  I did.
Q  Would you describe the general nature of this. What was {2222} the general subject matter of this discussion with Corporal Kramer?
A  Well, Corporal Kramer was in the process of stopping the station wagon which at that time was behind the motor home and we, the stope was made nearly simultaneous, about 150 yards apart.
Q  So apparently Corporal Kramer was going to take responsibility for one vehicle and you the other?
A  That's right.
Q  Is that correct?
Now, prior to stopping the two vehicles, you indicated you pulled up behind them. What position did you take with your police vehicle?
A  I stopped at the rear of the motor home, approximately 15 feet to the rear.
Q  So at some point you had cone in between the station wagon and the motor home?
A  That's right.
Q  Upon stopping your vehicle, did you see Corporal Kramer's vehicle in the area at that time?
A  I did not.
Q  Now his vehicle would have been behind your location, behind the station wagon, presumably, is that correct?
A  That's right.
Q  When you stopped your vehicle, what was the next thing {2223} that happened?
A  Upon stopping the vehicle, the radio transmission was made that the stop had been completed and there were short radio communications with Corporal Kramer at that time to ascertain his location and what he was about to do.
Q  All right.
A  I got out of the vehicle with my shotgun and approached the motor home from the right rear.
Q  Now was there any particular reason now -- ordinarily Oregon State Troopers do not get out when they stop a vehicle with their shotguns, do they?
A  No. That's not standard traffic procedure.
Q  Why did you do that in this case?
A  Well, the teletype indicated there was possible federal fugitives in the vehicle and it indicated extra caution.
Q  So you approached the vehicle from what direction?
A  From the right rear.
Q  And after you got up in the vicinity of the right rear of the vehicle, what happened next?
A  I commanded the occupants of the vehicle to exit the door.
Q  And did somebody exit?
A  Yes.
Q  Would you describe that.
A  A large Mexican appearing person got out of the vehicle. {2224} He was wearing a red short sleeved pullover type sport shirt.
Q  Okay.
A  I directed him to an area off the shoulder, told him to lay down.
Q  So the picture can be a little clearer in the jury's mind, I don't know if we really went into this, you had pursued the vehicles in a generally eastbound direction, is that correct?
A  That's right.
Q  So as the highway, as the highway runs here, you have a lane going this way and a lane coming this way (indicating)?
A  That's right.
Q  In other words, a lane coming toward the bottom of the map and a lane going forward. You would have been pursuing the vehicles on the, as you look at the map, the left lane, is that correct?
A  Yes.
Q  From your perspective, from your direction in the car would be the right lane of the highway, is that correct?
MR. ELLISON:  Your Honor, I'm going to object. Counsel is leading the witness. The witness is perfectly capable of going to the map and showing the directions in which he was traveling and the vehicle in which he was talking about traveling rather than Mr. Crooks giving a narrative.
{2225}
MR. CROOKS:  Your Honor, I assume this is a preliminary and not in dispute. If counsel wishes to do it the long way --
THE COURT:  Counsel approach the bench.
(Whereupon, the following proceedings were had at the bench.)
THE COURT:  It was my understanding that this trial was going to be conducted by Mr. Lowe and Mr. Taikeff. Mr. Ellison was appointed as an investigator and would be permitted to assist at the counsel table. Now I did not understand that he was going to participate in the trial.
MR. TAIKEFF:  Your Honor, there is a Notice of Appearance that's been on file by Mr. Ellison.
THE COURT:  I'm aware of that.
MR. TAIKEFF:  His appointment as an investigator was in consideration of the fact that he was an attorney but that Your Honor was only appointing two counsel as counsel. Mr. Lowe and I are not going to participate in the examination of this witness. We're abiding by your Honor's ruling of one lawyer.
THE COURT:  I'm aware of that, too.
MR. TAIKEFF:  To a witness. I thought Your Honor was aware of the fact that he had filed early on a Notice of Appearance as Counsel and has been assisting all the pleadings as Counsel.
{2226}
THE COURT:  Well, I will permit him to go forward. But it clearly was my understanding he was, just the two of you were going to be trying the case.
MR. TAIKEFF:  In the main that is our intention. We feel in this particular, in light of his full time involvement in the case and the fact he is a practicing lawyer, that we should pay him some professional respect and allow him to handle the witness, Your Honor.
THE COURT:  Very well.
MR. TAIKEFF:  I just wanted to add one thing. He personally investigated the Oregon scene in the course of the past several weeks and he is particularly capable of making the inquiries because he has in his own mind a vision of what the various places look like and what the relationship is between the different components in those locations.
MR. CROOKS:  Your Honor, I would also like to state something in view of this objection. I had understood from Mr. Taikeff, we weren't going to be nit-picking around with this type of objecting to something that clearly is a preliminary matter. We're talking about east and west and right and left and are you now changing your position that we're going to start, so that I have got to go through all of the question and answer? I had understood that wasn't going to be contested.
MR. ELLISON:  Your Honor, while this is basically a {2227} preliminary matter, we're beginning to get off the preliminary matters and throughout the trial the government has been conducting its investigation in a leading fashion which has not been objected to. The objection at this point of time, Mr. Crooks would be advised we appreciate it, as he's now beginning to move off, the preliminary matter, that the witness not be --
MR. CROOKS:  What I'm asking, Elliott, has your side changed its position?
MR. TAIKEFF:  No, we have not.
MR. CROOKS:  I'm asking the man if it's right or left.
MR. TAIKEFF:  When it comes to a substance, you don't do any leading.
MR. CROOKS:  I know that.
MR. TAIKEFF:  There is no problem about that.
MR. CROOKS:  This is a stupid objection in view of our agreement.
MR. LOWE:  I appreciate your saying that so loud the jury can hear you.
THE COURT:  Objection will be overruled.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
MR. CROOKS:  I'm not exactly sure of the state of the record at this time. The objection was made.
{2228}
THE COURT:  The objection is overruled.
Q  (By Mr. Crooks) What I'm simply attempting to do is not put words in your mouth. So the jury can get a perspective, you were proceeding, as you indicated previously, towards Ontario from a point approximately a mile or so north of Ontario, is that correct?
A  Well, several miles north.
Q  Several miles.
And you were proceeding, your driving position would be the right-hand land of traffic?
A  That's right.
Q  But from our perspective here would be the left side of the exhibit or left side of the highway as we look at the exhibit, is that correct?
A  That's correct.
Q  So it's on the innermost side toward the Pacific Ocean by way of reference and direction. If you proceeded then to follow the vehicle down this area toward Ontario, more or less as I'm indicating with the pointer --
A  That's right.
Q  Now when you indicated that you stopped the vehicle, this was on the right hand shoulder, is this correct?
{2229}
A  That's right.
Q  And when you approached it, and you indicated that the vehicle was on the right-hand shoulder, this would be on the right-hand shoulder of the eastbound lane?
A  That's right.
Q  Now then, you indicated the individual got out and you gave a brief description of him. What happened next?
A  I directed the male subject to lie down in an area designated near the right-of-way fence which is some 30 feet off the edge of the shoulder; and there was a lot of commotion, yelling and screaming, things of this nature.
Q  Where was that coming from?
A  That was coming from him.
Q  All right, from the individual?
A  Yes.
Q  All right. Did you ask the individual his name at any point?
A  I did.
Q  And do you recall whether or not he gave you his name?
A  He gave me a name.
Q  All right. He gave you a name, and do you recall specifically what it was?
A  I do not.
Q  All right Do you recall what type of name it was, whether it was an Indian name, Mexican, American name, or what {2230} type of name?
A  It was a common Mexican name.
Q  So he would have given you a common Mexican sounding name?
A  That's right.
Q  Now, what happened then, what was the next thing that occurred?
A  I asked if there were any other occupants in the vehicle, since none had come out.
Q  What was his response to that?
A  He said "women and children".
Q  And what happened next?
A  About that time two female Indian ladies and a young child came out.
Q  All right. After these individuals came out, the women and children, what was the next thing that you recall?
A  About the time they had exited the vehicle, the back-up lights of the motor home came on. I am standing right to the right rear at this time.
Q  All right.
A  The motor home backed up several feet and suddenly accelerated east going away from me.
Q  All right. When this happened, where was the individual who had gotten out, the male individual?
A  Just nearly a simultaneous moment, the male subject was going over the fence, going over the right-of-way fence.
{2231}
Q  All right. So when you are talking about that, this would again be on the right-hand fence of the eastbound lane?
A  That's right.
Q  All right. Now, what happened next?
A  Well, at nearly the same time I saw a flash come from the subject going over the fence, and the report of gunfire.
Q  All right. Do you recall what was the next thing that happened?
A  Well, at that time, as soon as I was -- the range was clear of women and children which were right between us at the time of the flash, I fired two rounds.
Q  All right, so the flash was fired -- or what you interpreted to be a shot was fired when the women and children were between you and the subject?
A  That's right.
Q  O.k., go ahead.
A  Just a few seconds later then I returned fire.
Q  And what weapon did you return fire with?
A  With a 12 gauge shotgun.
Q  Do you recall how many rounds you fired?
A  Two.
Q  All right. When you shot the two shells or two shots, did you observe anything to indicate to you from your own knowledge whether or not you had hit the individual?
A  No.
{2332}
Q  What was the last you saw of this individual?
A  Well, at the time he was going over the fence.
Q  Now, we are talking -- I believe you stated around 10:00 o'clock in the evening, is this correct?
A  Yes.
Q  And was it light or dark at that time?
A  It was dark.
Q  And did you see the individual again after he went over the fence and disappeared from your view?
A  I did not.
Q  All right. What did you do next after the exchange of gunfire, what did you do?
A  Well, of course, I observed the motor home traveling east from my location. I tried to keep an eye on that. The women and children proceeded up the shoulder in a westerly direction, and at about that time an Ontario city police car pulled up in the vicinity.
Q  All right. Had you observed at that time that Officer Kramer was in the area of the Plymouth?
A  No.
Q  All right, What -- when did you first -- well, let me ask you specifically:  What then did you observe, the women and children started up toward the area where the Plymouth was, is that correct?
A  That's right, The Ontario police car came in between them.
{2333}
Q  An Ontario police car came in between the Plymouth and your position?
A  That's right.
Q  And the motor home is now gone, is that correct?
A  That's right.
Q  What then happened?
A  Well, as soon as I was certain in my own mind that the Ontario police officer could observe these other people coming towards him, I radioed the office as to what the situation was and proceeded from the location of the stop east on the freeway.
Q  All right, so you are then proceeding in the generally same direction as the motor home that has gone?
A  That's right.
Q  How far did you go before you saw something that caught your attention?
A  Approximately a half a mile.
Q  All right. When you got a half a mile ahead, what did you see?
A  I saw the motor home in the median strip.
Q  So the motor home was in the median strip?
MR. ELLISON:  I am going to object to the constant repeating by counsel of the answers given by the witness.
THE COURT:  Sustained.
Q  (By Mr. Crooks) After you made that observation, was there any tie-up between the motor home that you saw in the {2334} median strip and a previous observation of the motor home?
A  It was the same motor home.
Q  All right. What did you do then?
A  Well, at that time I notified the office and stood by, secured the area and awaited assistance.
Q  All right. Did you do anything yourself insofar as going into the motor home, entering it or anything?
A  Not at that time.
Q  What was the condition of the motor home when you found it?
A  The lights were on and the engine was running, the door was shut.
Q  Did you see any individuals around the motor home?
A  No.
Q  All right. What was the next thing in sequence that happened?
A  Well, the Patrol Sergeant drove up to the scene with several other people, Ontario City Police Officers, and there were several off-duty State Police Officers; and warnings were broadcast on the two-way directing the occupants out.
Q  All right, and what happened next?
A  There was no response to the verbal direction from the Sergeant, a warning shot was fired over the vehicle by me at his direction, a tear gas round or two was fired into the back window.
{2335}
Q  All right. I would like to show you again Exhibit No. 61 specifically the rear of the vehicle shown in Photo B, there is an indication which would appear to be some type of defect in the window. Can you account for that?
A  Well, those are holes in the window caused by double aught buckshot and tear gas.
Q  There are also defects in the front window. Do you know what those are?
A  Those are exiting holes caused by projectiles coming through the window.
Q  What was your purpose in firing tear gas into the vehicle?
A  I did not fire the tear gas.
Q  Well, I am sorry, not you, but whoever did, what was the purpose in doing that?
A  Well, the purpose was in having the occupants in the vehicle get out of the vehicle.
Q  At that point did you know whether or not there were or were not occupants in the vehicle?
A  At which point?
Q  At the point when you were trying to -- well, firing the tear gas.
A  We had no way of knowing at that time. There was no indication there was anybody inside. We were not certain.
Q  Nobody had made any response to you?
A  That's right.
{2336}
Q  The demands -- what was the next thing in sequence that happened as best you can recall?
A  After the gas had been in the vehicle for some time exiting out the open windows and so forth, we approached the motor home from the rear. I approached from the right rear, and shot the right rear-view mirror off to prevent anybody inside from seeing the approach from the rear.
Q  That was my question, why, to prevent them looking out?
A  That's right.
Q  What then happened?
A  At that time the Trooper Schmeer and myself entered the motor home to find it empty.
Q  You found no one at all?
A  That's right.
Q  What was the next thing that you recall that you had any participation in concerning either of these vehicles?
A  Well, from that point forward I went back to the office, towing was arranged for the vehicles, but not by me.
Q  So then basically you went back to the office and really had no further part in the direct examination of the vehicle, would that be a fair summary?
A  I was in the area at the time the vehicles were searched, but as far as being directly responsible for the search I was not.
Q  You were not the one directly responsible?
{2337}
A  That's right.
Q  All right. Insofar as the individual who you described as having gotten out of the vehicle, the male, would you give a little further description of him from your recollection at the time this incident happened?
A  Well, he was a tall person, approximately six foot, in the neighborhood of 200 pounds, and medium length dark hair.
Q  And what -- would you give a little further description of his facial features and things of that nature?
A  Well, he was a Mexican-appearing subject.
Q  To you he appeared to be of a Mexican type of descent?
A  That's what he appeared to be.
Q  O.k., and what about facial characteristics, such as facial hair and any sort --
A  (Interrupting) I was unable to determine that.
(Counsel confer.)
Q  (By Mr. Crooks) One other point, when the motor home backed up, did it touch or strike you in any way?
A  No.
Q  Were you close enough that you had to move when it backed up?
A  I can't recall if I moved when it backed up or not.
MR. CROOKS:  All right. We have no further questions.
THE COURT:  The Court will recess until 11:25.
(Recess taken.)
{2238}
(Whereupon, the following proceedings were had in the courtroom without the presence of the jury:)
MR. CROOKS:  Your Honor, there was one other point that I had forgot to cover with Officer Griffiths and namely whether the vehicle was --
(Defendant entered courtroom.)
MR. CROOKS:  As I was saying, Your Honor, there's one other point which I neglected to cover with Officer Griffiths. The fact that the vehicle was actually stopped south of Ontario, I don't know, whoever pinpointed that. I would ask to reopen to get that in. It would work really better with his direct examination.
MR. ELLISON:  Your Honor, we have no objections to that particular question being asked the witness.
THE COURT:  Very well.
Mr. Sikma, would you look this over and tell me --
MR. SIKMA:  Yes, I have, Your Honor.
This is the jury instruction?
THE COURT:  Right.
MR. SIKMA:  Yes, Your Honor, I'm in agreement with that.
THE COURT:  Do you have any objection to that?
MR. SIKMA:  None whatever.
MR. LOWE:  I'm confused, Your Honor. I understood that Your Honor took under advisement an objection by the {2239} defense to the introduction of any evidence about the Cortlandt event on the basis of relevancy, but certainly as to certain items which have not been adduced in testimony. Rather than object and call the jury's attention unnecessarily to them we did not say anything because we understood that our record objection was made. But I am confused that the Government would proceed without waiting for Your Honor to give his ruling.
THE COURT:  I'm ready to rule on that.
All of the evidence that was discussed will be received, except I believe that Exhibit that was marked 38-H, that may be admissible for rebuttal purposes. But I do not believe it will be admissible at this time.
MR. CROOKS:  Was that the document with the typed printing on it, Your Honor?
THE COURT:  That's the document relating to political philosophy.
MR. CROOKS:  I know which one you are talking about.
MR. TAIKEFF:  Your Honor, in light of Your Honor's ruling I'm wondering whether Your Honor would not view the other pieces of paper in the same light, namely those pieces of paper which contain the transmission codes. And we do not mean to inhibit the Government from proving that there was communication capacity or anything that they reasonably think that can be inferred from those pieces of paper.
{2240}
It was not our intention to cut them off from proving what they have a legitimate purpose in proving in the guise of making an objection on some other subject. They said they wanted to prove the capabilities of one vehicle communicating with the other. If in fact there were operable radios in both vehicles, I have no knowledge of it, but if the Government recognizes that that is the fact, then we will so stipulate.
But it's the content of those pieces of paper that we're concerned with and at the same time they can prove by their testimony that fingerprints were found on a piece of paper or several pieces of paper. We're not going to interfere in any way with the proof of that. But we think that the content of those papers is prejudicial on its face and is not in any way connected with anything the Government need prove in this case.
And we offer every facility that the Government might be able to obtain from the defense in getting into evidence any fact or any reasonable inference that they wish to draw, but we don't think it's appropriate to get in the content of those radio codes in the guise of attempting to show that there was radio communication capacity.
THE COURT:  A ruling, the reason the Court ruled as it did, the Court views that radio code as being relevant to the showing of flight to avoid prosecution. And it's for that reason that I have not excluded that, and I feel the relevancy {2241} outweighs the prejudice of which you speak.
MR. TAIKEFF:  Thank you, Your Honor, for explaining the ruling.
THE COURT:  Very well.
Are counsel ready for the jury?
MR. CROOKS:  Yes, Your Honor.
MR. ELLISON:  Yes, Your Honor.
(Jury brought into courtroom.)
THE COURT:  Members of the jury, before we proceed there's just one point that I want to clear up. During the exchange between the lawyers immediately after you were brought in this morning Mr. Sikma said the defendant, he made the statement "the defendant is very familiar with the evidence which will be adduced during the course of this trial." He said, "He's very familiar with the time sequences, very familiar with the items that were presented earlier." You are instructed that in making this statement Mr. Sikma intended to refer to the defense, or to the defense team. Not to the defendant personally.
I tell you this because as I mentioned at the beginning of the trial when we were principally in the process of jury selection that you will be instructed that a defendant in a criminal case comes into court with a presumption of innocence, and this presumption prevails until all of the evidence has been presented, and until after the closing arguments and {2242} you've been instructed on the law. Then in order to overcome that presumption the jury must unanimously find that a defendant has been proved guilty beyond a reasonable doubt. In other words, for them to over, for a jury to overcome the presumption of innocence.
As a result this presumption of innocence which is given to a defendant in a criminal case, it cannot be assumed at any time that the defendant knows any facts that relate to the charges in the case. Because you will recall in my preliminary instructions I mentioned to you that a defendant does not have to present any evidence at all. That he may, but he's not required to.
I'm just making this to clear up the misstatement which Mr. Sikma made during that interexchange.
MR. CROOKS:  Your Honor, if I could be permitted to reopen my redirect examination for one very short series of questions that I overlooked previously.
THE COURT:  You may.
 REDIRECT EXAMINATION
BY MR. CROOKS
Q  Mr. Griffiths, the one thing that I had forgotten to ask you, you had testified earlier that you had first encountered these vehicles northwest of Ontario. Where were they from Ontario when they were stopped?
A  Just southeast. Southeast of Ontario, approximately half out of the city limits.
{2243}
Q  So the vehicles had moved in a southerly direction along Interstate 90 until they had gone by to the southeast of the city when the stop was actually made?
{2244}
A  Interstate 80.
Q  Interstate 80. I'm sorry.
At that point would have been fairly close to the Idaho border, would it not? A That's right.
MR. CROOKS:  No further questions.
MR. ELLISON:  Your Honor, may I approach the witness?
THE COURT:  You may.
 CROSS EXAMINATION
BY MR. ELLISON:
Q  Mr. Griffiths, we have met before, haven't we?
A  That's right.
Q  In fact, we met before at your home approximately two and a half weeks ago?
A  That's right.
Q  And one time before that, I believe it was in Cedar Rapids?
A  Yes.
Q  Mr. Griffiths, on your direct testimony you stated that you have been a police officer for seven and a half years, is that correct?
A  I was with the State Police for seven and a half years prior.
Q  Was this primarily in the Ontario, Oregon area?
A  Primarily; yes.
{2245}
Q  You're very familiar with that area?
A  I am.
Q  Are you very familiar with the area in which you stopped the mobile home originally on the 14th of November, 1975?
A  Quite familiar.
Q  Would you be able to draw a diagram depicting various land markings in that area as well as a depiction of the highway itself and the vehicles and individuals related to the circumstances surrounding what occurred on the highway?
A  I can try.
MR. ELLISON:  May I approach the witness, Your Honor?
THE COURT:  You may.
Q  I'm handing an 8 1/2 by 11 inch piece of blank paper to the witness with a blue pen.
Mr. Griffiths, would you please draw the highway area in which you originally stopped the motor home, keeping in mind as far as the fact that there is only one sheet of paper and I'd like you only to draw where the mobile home was stopped originally, where the Plymouth station wagon was stopped and where the mobile home was stopped after it moved, after being stopped originally.
A  (Indicating.)
Q  I would appreciate your being very careful with regard to directions, although understandably because of the size of the {2246} paper on which the diagram is being drawn I don't expect you to be able to have distances exactly in proportion.
Would you please designate on the diagram which is the eastbound lane and which is the westbound lane of Interstate 80 and please designate the road drawn as Interstate 80.
A  (Indicating.)
Q  Would you please draw on the diagram a rectangle designating the mobile home at the location in which you first stopped the mobile home and I'd also like you to draw in the Plymouth station wagon as well as the respective police vehicles of yourself and of Officer Kramer, if you know where Officer Kramer's vehicle was parked.
A  (Indicating.)
Q  And then I'd also like you to draw on the diagram the second location in which the mobile home was stopped at.
A  (Indicating.)
Q  Please place a "2" in the center of that diagram.
A  (Indicating.)
Q  Does this diagram represent a fair and accurate representation to the best of your ability as to what is depicted on it concerning the scene and the objects contained and relevant to the incident we have been discussing and which you gave on direct testimony?
A  I'd say yes.
MR. ELLISON:  Your Honor, I ask this be marked for {2247} identification purposes.
THE COURT:  It may be marked.
MR. ELLISON:  I'm showing what has been marked as Defendant's Exhibit 136 to the government.
MR. CROOKS:  We have no objection to this exhibit, Your Honor.
THE COURT:  136 is received.
MR. LOWE:  Your Honor, may we have permission to remove this from the courtroom just long enough to make a Xerox copy across the hall and bring it back?
THE COURT:  I assume there is no objection to that.
MR. LOWE:  I'll make a copy for Counsel also.
MR. CROOKS:  Please, if you would.
Q  (By Mr. Ellison) Mr. Griffiths, on November 14, 1975, what time did you begin work that day?
A  I can't recall.
Q  Were you nearing the end of your shift or --
A  Yes, I was.
Q  You were near the end of your shift.
How long is your shift?
A  Normally eight hours.
A  Do you have any recollection what time the shift ended that particular day?
A  Well, I can't recall which shift I was on. I was the only one out.
{2248}
Q  You mentioned on your direct examination that prior to stopping the mobile home you were in communication by radio with Officer Kramer.
A  That's right.
Q  And he told you as to his location with respect to the Plymouth station wagon, is that correct, immediately prior to your stopping the mobile home?
A  Yes.
Q  You were aware that he was, shall I say, covering the Plymouth?
A  Yes, he was.
Q  And you relied upon his communication to that effect and did not concern yourself with the Plymouth station wagon?
A  No. I relied upon the communication.
Q  During your direct testimony you stated that the person who exited the vehicle was a Mexican looking person wearing a red shirt, is that correct?
A  That's right.
Q  And I believe that you stated that he was six feet tall and 200 pounds approximately.
A  Yes.
Q  Medium length dark hair and Mexican appearance.
A  That's right.
Q  Are there any Mexican-American people in that area of Oregon?
{2249}
A  There are some; yes.
Q  Now you went back, after you were on the highway, you went back to your headquarters at Ontario?
A  For a short time; yes.
Q  And during that short period of time agents of the Federal Bureau of Investigation were present, is that correct?
A  I don't think so.
Q  When did agents of the FBI arrive in the Ontario area with relation to this incident?
A  That was early the following morning.
Q  Approximately how long after this incident began?
A  I couldn't say exactly.
Q  Would you say two to three hours?
A  Probably; yes.
Q  And you didn't see any agents of the FBI at the Oregon State Police office in Ontario?
A  I did the following morning. Yes.
Q  Was this two to three hours later?
A  Yes.
Q  At a much later time?
A  Yes.
Q  This was the two to three --
A  Yes.
Q  This was on the very early hours of November 14?
A  Yes.
{2250}
Q  At that time these agents of the FBI handed you some flyers, wanted flyers, didn't they?
A  That's right.
Q  For your perusal.
How many flyers were you given?
A  I don't recall. There were several.
Q  Would a half a dozen be a reasonable estimate?
A  Well, I can't say.
Q  Do you remember a conversation that we had at your home in which you told me that you had been given approximately a half dozen flyers to look at?
A  Well, there may have been. I don't know.
Q  Do you recall whether or not these were just photographs or whether they also contained the names of individuals?
A  Well, they would be regular wanted flyers, contain both.
Q  And they were federal flyers, weren't they?
A  Yes.
Q  So that isn't it true that on a federal flyer you have in very large print the name of the individual depicted as well as the photographs?
A  Well, I can't recall. I haven't seen one for quite some time.
Q  But the flyers that you were given did contain photographs?
A  Yes, they did.
Q  And you agree with me that it could have been {2251} approximately half dozen, sir?
A  Possibly yes.
Q  How many of these flyers would have contained photographs and identifications of Mr. Peltier?
A  There may have been two.
Q  Or three?
A  (No response.)
Q  Sir?
A  I don't know. There may have been two.
Q  Or three?
A  Well, I said two.
Q  Okay.
Do you remember the names of the other individuals whose flyers were depicted?
A  No.
Q  Were they all men?
A  I believe so.
Q  Were they all individuals that had short curly hair?
A  I don't recall.
Q  Isn't it a fact, Mr. Griffith, that most of those photographs contained people with long hair except for the two photographs that you have identified, the two flyers you have identified that contained pictures of Mr. Peltier?
A  No. I couldn't say.
Q  Getting back to the highway at this time you testified on {2252} direct examination that it was nighttime when this incident occurred.
A  That's right.
Q  Approximately 10:00 o'clock?
A  Approximately.
Q  Was it a clear night or cloudy night?
A  I don't know.
Q  But there are no street lights on the highway at that point, are there?
A  No.
Q  So that the visibility was not very good because of the darkness, the lateness of the hour?
A  That's right.
Q  Now you've described a fence. How far is that fence from the highway at that point, the point where you originally stopped the mobile home?
A  Approximately 30 feet.
Q  And how high is that fence?
A  About five, five and a half feet high.
Q  And the lower portion of that fence is a chain link fence, isn't it?
A  I don't think so.
Q  What type of a fence is it?
A  Well, probably be a stock type fence. I could draw a picture, but tell you the exact type, I couldn't.
{2253}
Q  All right. Perhaps that might be a good idea.
MR. ELLISON:  Excuse me for just a minute, Your Honor.
Q  (By Mr. Ellison) Mr. Griffiths, would you please draw on a legal size piece of paper the fence as it exists at the location where you originally stopped the mobile home so the jury may have an idea as to what this fence looked like.
A  I could draw you the fence that the highway department used alongside the road. I don't know exactly if this is the exact fence that's along the location here.
Q  Why don't you draw that fence and we can talk about it.
MR. CROOKS:  Your Honor, I'll interpose an objection here. The witness is giving his best recollection and Counsel is trying to force him to say something that his recollection doesn't recall and I object. This is improper. The witness, the question has been asked and answered.
MR. ELLISON:  Your Honor, this witness has stated he is familiar with the standard highway fence. I am familiar with that fence and if there is any discrepancies we can discuss them and perhaps make an accurate diagram.
MR. CROOKS:  Your Honor, I will object to this. Counsel is stating what he knows in front of this jury and that's certainly improper.
THE COURT:  Members of the jury, you must remember and bear in mind at all times throughout this trial that any {2254} assertions of fact made by Counsel are not evidence and if assertions of fact are made by Counsel which are not supported by evidence, then those assertions must be disregarded.
MR. ELLISON:  Yes. I'd appreciate it if Mr. Crooks would let me finish my argument before standing up and making his.
THE COURT:  As far as the objection is concerned, I will overrule the objection and permit the witness to draw the fence.
Q  (By Mr. Ellison) Would you please draw the fence as you're familiar with it, sir.
A  (Indicating.)
There may be two strands of barbed wire, I'm not certain.
Q  All right.
MR. ELLISON:  I'd like this marked for identification, please.
Q  (By Mr. Ellison) Mr. Griffiths, this is to the best of your ability, best of your recollection the appearance of the fence at the location in which you first stopped the mobile home?
A  The best of my recollection.
MR. ELLISON:  Your Honor, based upon that foundation I would like to offer Defendant's Exhibit 137 into evidence.
MR. CROOKS:  Well, we'd object because we don't see it {2255} has any probative value. The witness has described the fence to the best of his recollection. We don't see what this exhibit adds.
MR. ELLISON:  I'll represent to the Court that this has a great deal of probative value and we'll connect it shortly.
THE COURT:  Well, as I understood the witness' testimony, he testified that he did not specifically remember the fence at that location, is that right?
THE WITNESS:  That's right, Your Honor.
{2256}
THE COURT:  And you have drawn this as a type of fence used in Oregon?
THE WITNESS:  That's right.
THE COURT:  It will be received on that basis, that this is the witness' drawing of the type of fence commonly used by the State of Oregon to fence its highway.
MR. CROOKS:  We have no objection if that's what it is. That was our understanding of his testimony also.
Q  (By Mr. Ellison) Mr. Griffiths, you stated that you were very familiar with that particular area, that general area of Oregon, is that correct?
A  I am familiar with the State of Oregon, yes.
Q  You are familiar with the highways in that particular area of Oregon?
A  Quite familiar, yes.
Q  Have you seen other types of fence used by the Highway Department along Interstate 80 in that area other than that which you depicted on Defendant's Exhibit 137?
A  Yes, I have.
Q  And is this used generally between, say, overpasses, or is the other type of fence used primarily near overpasses?
A  Which type of fence is that?
Q  A fence different from the one you depicted on Defendant's Exhibit 137.
A  Would be areas around the rest area, information center, {2257} rest stop, this type of fence.
Q  The area in which you stopped the mobile home originally, was that near any one of these areas?
A  There is an area coming into -- or would be on the westbound side, that is an information center, rest area type stop.
Q  What about on the eastbound side?
A  No.
Q  And the area in which you stopped the home was on the eastbound side, wasn't it?
A  That's right.
Q  And there was barbed wire on the top of that fence, isn't there?
A  I believe so, yes.
Q  You testified on direct examination that there was a great deal of commotion and yelling and screaming going on as individuals emerged from the mobile home, is that correct?
A  That's right.
Q  And it was your impression when you stopped the mobile home that there was a very good likelihood, based upon the teletype that you had read, that there were fugitives, possibly dangerous fugitives, I believe the teletype stated, in that mobile home?
A  That's right.
Q  And this is the reason why you took a shotgun from your {2258} vehicle when you exited that vehicle?
A  That's right.
Q  Would you say, sir, that you were somewhat nervous when you got out of the vehicle, based on the circumstances?
A  It wasn't a very comfortable position to be in, no.
Q  And the nearest police officer that you knew of was Officer Kramer?
A  That's right.
Q  And approximately how far behind you, when you origin-ally stopped the mobile home, was the Plymouth station wagon?
A  Approximately 150, 200 feet.
Q  Mr. Griffiths, is a copy of the diagram which you just drew, marked Defendant's Exhibit 136?
A  It certainly looks like it.
Q  You would not have any dispute?
A  No.
Q  Now, I believe that you mentioned that there was 150 to 200 feet between the mobile home and the Plymouth station wagon?
A  Approximately.
Q  (Indicating) You stated you were not in a very comfortable position when you exited your police vehicle after stopping the mobile home originally?
A  That's right.
Q  As the individuals in the mobile home began to exit, and there was a great deal of yelling and screaming and commotion, {2259} would you say there was a great deal of confusion as well?
A  Some.
Q  Now, I believe it was your testimony that after the Mexican-looking man in the red shirt and several women and children got out of the vehicle, you had them lay on the ground?
A  I instructed them to lay on the ground.
Q  Had they laid down on the ground before anything else happened?
A  No.
Q  Was the man with the red shirt laying on the ground?
A  Well, he went down once, and he was back up again.
Q  And was anyone laying down or were all people standing aside from yourself when the mobile home took off and an individual ran off?
A  I was standing also.
Q  You were standing. What about the others?
A  They were standing.
Q  I see, so then everyone was standing?
A  That's the way it appeared, yes.
Q  All right. Then you saw, and I believe you said almost simultaneously, the back-up lights come on and the mobile home accelerate and the individual with the red shirt running towards the fence, is that correct?
A  Well, he was going over the fence.
Q  He was going over the fence.
{2260}
I am going to hand you what has been marked as Defendant's Exhibit 136 and ask you to place an "X" at your location where you were standing when all of this occurred; and on the acetate copy o Defendant's Exhibit 136, and I would like you to place a "T" at the location where you next saw the individual running away from the mobile home and a dotted line in between there, please?
MR. CROOKS:  Just a moment, your Honor. Where is 136?
MR. ELLISON:  136 is over with the Clerk. This is an acetate copy which the witness is drawing on.
MR. CROOKS:  Is that marked as an exhibit?
THE CLERK:  No, it is not.
MR. ELLISON:  Then do the same on what has actually been marked as Defendant's Exhibit 136, please.
A  You wanted a "T" where?
Q  (By Mr. Ellison) I would like a "T" at the first location, or I believe you said at the fence area where you saw the individual with the red shirt after the mobile home backed up and then accelerated.
A  (Indicating).
Q  So that the jury is able to observe, you have marked a "X" at the location where you were standing before the mobile home began to move and before the individual ran, and a "T" at the location where you saw this individual immediately thereafter?
{2261}
A  Yes.
Q  Did you move at all during the events that occurred at this location?
A  Not very much.
Q  All right, and as far as the "T", you have not placed a "T" actually on the fence. I believe in your direct testimony you stated that you saw the individual on the fence when you saw the flash, is that correct?
A  He was going over or about to go over the fence.
Q  You saw the flash simultaneous with his going over, as he was preparing to go over the fence?
A  In about that time.
MR. CROOKS:  Your Honor, I object to this. It is not what the witness said just two seconds ago.
THE COURT:  The jury will recall what the witness said.
Q  (By Mr. Ellison) Were you able to see well enough to tell whether this individual was on top of the fence or about to be going over the fence when you saw the flash?
A  No.
Q  All right. So you assume it was about that time in that location?
A  Yes.
Q  Now, in he midst of all this confusion, you are absolutely sure that you saw the flash come from the point {2262} which you have marked "T" and not perhaps somewhere near the mobile home?
A  Absolutely certain.
Q  All right, and the mobile home traveled down the road in an eastward direction?
A  That's right.
Q  And I believe it is at a point that you have marked with a "2"?
A  That's right.
Q  All right, and you went down to that vehicle shortly after this particular incident, is that correct?
A  Oh, yes, I did.
Q  Did you ever find or did you ever hear of any evidence which might lead you to believe that perhaps the shot which was fired came, not from the point which -- or the individual which you have placed at point "T", but from the mobile home?
A  I did not.
*Q  Did you ever hear of a .357 magnum being found on the shoulder of the road near where the mobile home was abandoned?
A  I heard of such a find, yes.
Q  And who did you hear of such a find from?
A  I don't recall.
Q  Was it another trooper?
A  I can't recall.
Q  Did you hear that there was one fired round in that .357 {2263} magnum?
A  I didn't hear that.
Q  When did you hear that this .357 magnum was found?
A  Well, I didn't hear about it until several days afterward.
Q  But what did you hear was the date of the finding?
A  I did not hear.
Q  Or read?
A  I have no knowledge of the exact date.
Q  Do you have any idea how many people were in the mobile home when it took from the point that you have designated that you originally stopped it?
A  At least one.
Q  At least one, there could have been more?
A  There could have been.
Q  Now, you had an opportunity to look at that mobile home, didn't you, both at the scene and later when you observed a search being conducted of those vehicles?
A  Yes.
Q  How many doors on that mobile home?
A  I beg pardon?
Q  How many doors?
A  Doors?
Q  Yes.
A  There is one door.
Q  And on which side of the vehicle is that door?
{2264}
A  The right side.
Q  There is no door on the driver's side?
A  No.
Q  Is there a window which opens on the driver's side?
A  Yes, there are opening windows
Q  And what about on the passenger side?
A  I don't recall.
Q  Would it help to refresh your recollection if you looked at what has been marked for identification purposes as Government's Exhibit 61?
A  Yes. (Examining) What is the question?
Q  The question is, are there windows on the driver's side as well as the passenger side which are capable of being opened?
A  Well, this one here (indicating) is capable of being opened for sure.
Q  When you say "here", are you designating the left side of the mobile home?
A  Yes, the left driver's window.
Q  All right, and what about the right driver's window?
A  I don't know.
Q  And you were present, were you not during the search of that mobile home?
A  I was in the area of the search. I did not conduct the search.
{2265}
Q  You were present at the location where the search was conducted?
A  At times, yes.
Q  At times. Do you recall what date?
A  Well, it was a day or so later, exactly what date it was I don't recall.
Q  Do you recall who was present conducting the search at that time?
A  There were a number of people present.
Q  Do you recall whether there were agents of the FBI as well as other officers?
A  Well, I am sure there were, yes.
Q  Do you recall the names of any of the officers and agents that were present?
A  Well, Sergeant Bill Zeller, the Oregon State Police, conducted the search. The names of the others, there were many other people.
Q  Was Officer Kramer there?
A  At times.
Q  While you observed Sergeant Zeller conducting the search, did any of the FBI Agents also participate in the search?
A  I couldn't say.
Q  Were you present when any items were brought out of the mobile home?
A  There were items brought out of the mobile home when I {2266} was there, yes.
Q  Did you observe these items as they were brought out?
A  I did not.
Q  You did not observe any of the items brought out?
A  I may have seen some of the items. To be cognizant of what they were, no.
Q  I would like you to look at Government's Exhibit 61, and see if you see any of the items depicted, which are depicted in these photographs -- did you see any of those items being brought out of the mobile home when you were present?
A  I can't say.
Q  O.k.
For purposes of clarification, I would just simply like to refer to one point once again, I believe that the jury did not have an opportunity to see.
This is the Point 2 (indicating) which is the second location where the mobile home was stopped?
A  That's right.
Q  All right, thank you.
Mr. Griffiths, when you fired tear gas into the mobile home as it stood on the highway, you entered that home, is that correct?
A  I did not fire tear gas.
Q  Or when another officer fired tear gas into the home, you eventually entered that mobile home while it was still on the {2267} highway?
A  Yes.
Q  And I believe you entered with a Trooper Schmeer?
A  That's right.
Q  Were you wearing gas masks when you went inside?
A  Nope.
Q  You went in pretty quick and then came out?
A  That's right.
Q  Could you see very well inside that mobile home when you sent inside?
A  Well, we had flashlights, not well, no.
Q  Tear gas makes kind of a cloud, doesn't it?
A  It irritates the eyes. We couldn't see too well in there.
Q  And your purpose in going in was just to see if there were any individuals in there?
A  That's right.
Q  You weren't concerned about any physical objects in there?
A  No.
Q  You didn't attach much concern as to those physical objects, your main concern was whether or not there was a person that might be harmful to you, is that correct?
A  Will you restate the question, please?
Q  When you entered that mobile home, your primary concern was looking for individuals who might cause harm to you or your fellow officers?
{2268}
A  That's right.
Q  You were not very concerned with any physical evidence, in fact you were not concerned at all with any physical evidence that might be in the mobile home?
A  Well, in what respect?
Q  In any respect.
A  Well, certainly we were concerned.
Q  All right. When you entered the mobile home, you didn't take great care so that anything that you may have touched or may have knocked against accidentally, you didn't take great care to see that that didn't happen?
A  I entered the mobile home just a short distance, maybe right into the entryway, and that was it.
Q  Did you understand my question?
A  I understood your question, yes.
Q  Did you take any particular care when you were entering the home, or were you even concerned with taking any particular care to make sure that you didn't step on any evidence or push it out of the way or perhaps touch it?
A  We took care, but that was not our primary concern.
Q  And Trooper Schmeer did the same?
A  Certainly.
Q  He took great care?
A  Yes.
{2269}
Q  One final question, Mr. Griffiths. At the time that you went into the mobile home did you observe any physical objects which you later recorded?
A  No.
Q  Did you observe any physical object which you didn't record?
A  No.
Q  Your primary concern was just to see whether there were any individuals?
A  That's right.
MR. ELLISON:  Your Honor, I have no further questions of this witness. However, I would like to offer the transparency which is a copy of 136 into evidence.
MR. CROOKS:  We have no objection.
THE COURT:  What is the number on that?
MR. CROOKS:  Well, he hasn't marked it yet apparently. I assume it would be 136.
MR. ELLISON:  It is a copy of 136. Perhaps we could designate it 136-A.
THE COURT:  It may be designated 136-A.
 REDIRECT EXAMINATION
BY MR. CROOKS
Q  Officer, or Mr. Griffiths, I have a couple of additional questions.
With regard to 136 you have indicated a "T" to show the indication, or the portion of the individual who fired at {2270} you at he was either crossing or about to cross the fence; is that correct?
A  That's right.
Q  And you have marked your position with an "X"?
A  That's right.
Q  Would you take a red pen and mark the approximate location of the women and children, just put a red "W" at the location approximately where they were when the shot was fired.
A  (Indicating.)
Q  All right. And you have indicated now a red "W" approximately between your location and that of the individual who was firing upon you?
A  That's right.
(Government counsel showing Exhibit 136 to jury.)
Q  (By Mr. Crooks) Counsel has asked you several questions about the individual who had fired at you and went in great detail as to your observations. So I at this point would ask you a question which I had not on redirect. Do you see an individual resembling that man who had fired at you in the courtroom?
MR. ELLISON:  Objection, Your Honor. Witness has already testified to the best of his ability as to the description of the individual, and this is way beyond the scope of cross-examination.
THE COURT:  Overruled.
{2271}
Q  (By Mr. Crooks) Well, answer the question if you can recall it.
A  What was the question again, I'm sorry.
Q  Could you, well I'll just ask you again. Do you see an individual in the courtroom who resembles the individual who fired at you and escaped over the fence?
A  Yes, there is.
Q  And where is he seated?
A  He's the defendant.
Q  And that would be the individual who we have seated at counsel table with the black and red shirt on with a buckskin vest; is that correct?
A  That's right.
Q  Now, are you positive, or can you give a positive identification that was the man?
A  I cannot.
Q  But your best recollection would be that this appears to be similar to that man?
A  Yes.
MR. CROOKS:  All right. No further questions.
MR. TAIKEFF:  May we have a moment to confer, Your Honor?
THE COURT:  You may.
The record may show that 136-A was received.
(Defense counsel conferring.)
{2272}
 RECROSS EXAMINATION
BY MR. ELLISON
Q  Mr. Griffiths, you were asked by counsel for the Government if you saw anyone in the courtroom who resembles the person that you saw on November 14, 1975; is that correct?
A  That's correct.
Q  And you immediately responded "Yes, the defendant"; is that correct?
A  Yes.
Q  Did you have an opportunity to look around the courtroom?
A  I have.
Q  After you were asked this question?
And make the observation that nobody in the courtroom resembles the individual that you saw on November 14, 1975? Or did you respond immediately "Yes, the defendant"?
A  Yes, I did.
Q  And then Mr. Crooks went into an elaborate description of Mr. Peltier; is that correct?
MR. CROOKS:  Your Honor, I'm not following this. I didn't give any description at all on my redirect.
THE COURT:  Is that an objection?
MR. CROOKS:  Yes. I think he's misstating the record If he's referring back to me opening direct examination I did go into a description, but did not go into a description on redirect.
MR. ELLISON:  I'll withdraw the question and rephrase {2273} it, Your Honor.
THE COURT:  All right.
Q  (By Mr. Ellison) Did Mr. Crooks, immediately after your response to that "Yes, the defendant", describe an individual wearing a tan vest and a black shirt?
A  Yes, he did.
Q  All right. And then you reidentified the defendant as being the person that you saw on November 14, 1975 as being the same person who's sitting in this courtroom, or resembles at person I believe you said?
A  That's right.
Q  And you are not sure or that identification?
A  I'm not positive, no.
Q  Isn't it a fact, Mr. Griffiths, that when the FBI handed you fliers they emphasized the fliers, more than one flier of a half a dozen fliers, that had pictures of Mr. Peltier and tried to insinuate, or tried to get you to feel and believe in your mind that the person that you saw was actually Leonard Peltier?
A  No, they did not.
Q  You don't remember the names of any of those FBI agents? No, I don't. Were these FBI agents who were familiar to you?
A  No.
Q  How many agents were there?
{2274}
A  There was a number of them.
Q  Approximately eight?
A  I don't know.
Q  Do you remember the conversation which we had at your home in which you said there were approximately eight?
A  I don't recall.
Q  Do you remember that you said that you knew two those eight individuals?
A  Yes.
Q  All right. So you did know some of those eight individual?
A  Not the ones with the fliers.
Q  Okay. And these other agents you hadn't seen before?
A  That's right.
Q  And they arrived two to three hours after your initial radio broadcast that you were stopping tho mobile home?
A  Approximately.
Q  Now, Government counsel has asked you to mark on defense Exhibit 136-A with a "W" as to the location of the women and children in relationship to you and the individual who was at the fence; is that correct?
A  That's right.
Q  All right. Would you please do the same on defense Exhibit 136-A. I will provide you in a moment with a marker.
(Defense counsel handed witness pen.)
Q  (By Mr. Ellison) I'm using a green pen. Please place a {2275} "W" in the same location which you marked "W" on Defense Exhibit 136.
A  (Indicating.)
Q  Thank you.
And you've placed a "W" approximately in "T" middle, between you and the individual that you've marked as "T"?
A  Approximately, yes.
Q  And this was the location of the women and children when the shot was fired; is that correct?
A  That's right.
Q  And the women and children were standing at that time?
A  They were.
Q  All right. So it's your contention that the individual who fired at you fired in the direction of the women and children in order to hit at you?
A  That's right.
MR. ELLISON:  I have no further questions of this witness, Your Honor.
MR. CROOKS:  We have no further questions. We'd ask that the witness be excused.
THE COURT:  You may step down. Any objection to this witness being excused?
MR. ELLISON:  None, Your Honor.
THE COURT:  You are excused.
THE WITNESS:  Thank you, Your Honor.
{2276}
THE COURT:  We will recess for lunch five minutes early.
Court is in recess until 1:30.
(Recess taken)

{MY NOTE: SEE MY DIAGRAM OF THIS WITNESS AND OFFICER KRAMER'S TESTIMONY..NOT FROM THE TRIAL PROCEEDINGS, BUT DRAWN FROM WITNESS TESTIMONY}