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

On November 14, 1975 just south of Ontario Oregon on the southbound lanes of I-80 State Trooper Ken Griffiths received an FBI teletype advising that federal fugitives may be in the area and to be on the outlook for a motorhome and station wagon.  Some testimony also enlarged upon this teletype that it included a photo of Leonard Peltier.  Trooper Griffiths testified that he spotted the vehicles and called for back up.  Clayton Kramer, Oregon State Police responded and arrived just as Trooper Griffiths was stopping the motorhome.  Kramer stopped the station wagon approximately 345 feet behind the other.  Ofcr. Griffiths claimed that a man got out of the motorhome (who looked Mexican) followed by two women and a child.  There was a commotion, the motorhome back up lights came on and the vehicle accelerated away as  the man bolted for a five foot chain link barbwire topped fence and shot at him as he topped the fence.

Simultaneously, Officer Kramer 345 feet behind him says a bullet whizzed past his head.  (maybe about 90 degrees off? or was never fired by the person going over the fence at all)

The motorhome was found about a half mile down the road in the median still running.  Troopers fired tear gas and then entered briefly.  They found no one else inside.

The following morning Kramer paced off the distance between the two vehicles and another trooper Jim James found a .357 magnum (with a single shot fired?) near the median where the camper finally stopped.

An entire series of court cases ensued against the occupants, the last of which was finally dismissed May 6, 1987 (case) over ten years later.  The single longest criminal case in the history of the US.  "Dynamite" found in the station wagon was destroyed, purportedly because it was "unstable".  Defense attorneys alluded to information that an FBI informant had been involved in its procurement, hence, the destruction was necessary to keep the FBI wrongdoing off the court docket.

US vs LoudHawk, Banks, Peltier, Aquash, Redner, Banks and Eask
(case)

The following is testimony found in Vol 11 of the trial transcripts US vs Leonard Peltier and is yet another attempt to introduce evidence of government misconduct, disappearing and reappearing evidence, as well as pre-prepared affidavits delivered by mail used in the extradition from Canada.  The government again refuses admittance of FBI reports known as "302"s.

GOV ATTORNEY: CROOKS
LEONARD PELTIER'S ATTORNEY: BRUCE ELLISON
"COURT":  JUDGE BENSON
WITNESS:  WILLIAM PORTER ZELLER, OREGON STATE BUREAU OF IDENTIFICATION

VOLUME 11

Q  Do you know a man by the name of Jim James?
A  I know who he is.
Q  All right. Did Jim James give you a .357 magnum?
A  No, he did not.
Q  Did you receive a .357 which you learned at sometime later was found by a man by the name of Jim James?
A  I was told that he had found a .357 magnum.
Q  And were you told where he found it?
MR. CROOKS:  Your Honor, I object to this as hearsay. This man states that he has no personal knowledge where any .357 was found.
I object to going into recitation as to what Mr. James may or may not have told somebody who told this witness.
THE COURT:  Sustained.
Q  (By Mr. Ellison) You examined that .357 magnum. Were you, did you check to see if the weapon was loaded?
A  Are you referring to Government's Exhibit 35-A?
Q  No. The weapons found by Jim James which you examined prior to examining the mobile home on November 15, 1975
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A  Indeed it was found by him. I did examine a .357.
Q  All right. Did you examine to see if it was loaded?
A  I'm sure that I did.
Q  Isn't it a fact, sir, that one round of that .357 magnum had been fired?
MR. CROOKS:  Your Honor, I'll object to this. Counsel is testifying. If he wishes to ask the witness whether one round is fired, he's stating something into the record which is the improper way to do it.
MR. ELLISON:  Your Honor, I believe I did just ask the witness if one round was fired.
THE COURT:  The objection is sustained.
The jury will recall that what I previously told you today that when an attorney makes an assertation that is not supported by evidence it should be disregarded.
Q  (By. Mr. Ellison) All right, sir. On November 16th of 1975 I believe you stated a few moments ago that you went back to examine the mobile home because you did not finish your examination on the 15th of November; is that correct?
A  Yes.
Q  What time did you return to the mobile home?
A  I'm not sure. It was either late morning or early afternoon.
Q  And how long did you stay during that examination?
A  I would say approximately, until 8:00 o'clock or so in the {2375} evening. That's an approximate figure. I don't really remember exactly.
Q  So from your memory you spent the day examining the mobile home?
A  Not the entire day.
Q  Did you examine anything else on that day?
A  Yes. That was the day that I went to the Steven Barker residence and examined his home in regard to the burglary.
Q  All right. Did you talk to, or were you interviewed by any FBI agents on that day?
A  I'm certain that I talked to several FBI agents. I don't think that I was interviewed by them as such.
Q  All right. Are you aware that FBI agents wrote 302's interview forms pertaining to such discussions?
A  I'm not familiar with FBI form 302's.
Q  And the FBI was present with you when you conducted all of your examinations?
A  They weren't right close with me. However, they were in the same area.
Q  Were they observing your activities?
A  They might have observed them partially. They were not in the, for instance, they were not in the recreational vehicle with me. They were outside someplace.
Q  On November 16th did you make any comparisons of the fingerprints which you had found at the ranch home?
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A  Yes.
Q  And did you make any identifications on the 16th of November?
A  I did.
Q  And was this for other items other than those found in that ranch? For example, did it include items found in the mobile home?
A  No.
Q  Did you, up to November 16th, make any identifications of any of the fingerprints that you had found in the mobile home?
A  No.
Q  When was the first date that you made any identifications of those materials or those items?
A  As I recall it was November the 16th.
Q  From the mobile home?
A  Oh, no, from the Barker residence.
Q  All right. From the mobile home, when was the first time that you made an identification?
A  I don't remember the exact date. I believe that it was just previous to the extradition hearings in Canada.
Q  Okay. Were you ever asked to make any fingerprint comparisons with cards bearing the fingerprints identified as Leonard Peltier up to and through November 16th on any items in the mobile home?
A  Through November 16th?
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%Q  Yes.
A  Yes, I did on that date compare fingerprints of Leonard Peltier with the -- no, not on the mobile home, just on the burglary .
Q  Please listen to my questions.
Now, when you obtained print comparison cards of the prints allegedly containing Mr. Peltier were these furnished to you by the FBI?
A  I don't recall.
Q  Well, you had some print comparison card to work with, didn't you, on November 16th?
A  I had a machine copy of fingerprint cards.
Q  Who furnished you that machine copy?
A  I don't recall, but it was through the members of the Ontario State Police office, or whether it was through the FBI.
Q  Do you remember telling any FBI agents that you had made any comparisons or any identifications on November 16th of any prints of Leonard Peltier?
A  I'm sure that I let it be known that I had found one fingerprint which I had identified as Mr. Peltier's. And I'm sure that the FBI agents were present.
Q  All right. On November 17th you went to Salem, Oregon, didn't you?
A  Yes.
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Q  And you took various paper bags, you took the paper bag I believe and several other items?
A  Yes.
Q  What other items did you take to Salem?
A  I'll have to refer to my report where I listed them.
(Witness referring to his report.)
Q  There were a total of five paper sacks, there were three sheets of paper, one box of breakfast cereal, one ignition testing tool, one radio mike, one jar of honey, one sugar container, one bowl, one tobacco box and one pair of sunglasses. These were the items removed from the recreational vehicle.
Q  And you also took the .357 magnum which was recovered from the shooting scene I believe?
A  I took a .357 revolver which was displayed to me at the Ontario patrol office.
Q  And I believe you also took the .44 Ruger.?
A  Yes. That did not come from the recreational vehicle.
Q  Sir, I notice that you refer to notes, and I wonder if you would look at Defendant's Exhibit 142 and see if what is contained in your notes corresponds exactly to what is contained on Defendant's Exhibit 142.
(Witness comparing Defendant's Exhibit 142 with his notes.)
A  It contains the same items removed from the recreational vehicle. There is slightly different wording to describe the {2379} items.
Q  Okay. And what about on page 2 of Defendant's Exhibit 142, does that compare, correspond to your own notes?
A  These would be the items removed from the Plymouth station wagon?
Q  Yes.
A  Rather than the recreational vehicle?
These would describe the same items. However, in possibly different wording.
Q  All right. But would you agree that what is contained within your report is what is contained within what has been marked as Defendant's Exhibit 142? Would you agree that the same information is contained therein, although perhaps the wording might be slightly different?
%A  Same information in addition to which the revolver which I checked at the Ontario station was also included on my report.
Q  Okay. Did you review your report which compares to Defendant's Exhibit 142 prior to your testifying today?
A  Yes.
Q  And did that refresh your recollection?
A  It refreshed it; however, I didn't remember word by word everything that's in it.
Q  So there were items that you did not remember prior to your reviewing the document which you are testifying to today?
{2380}
A  Please rephrase, please ask me the question again.
Q  There are items which you've testified to today which were refreshed by your looking at these documents?
A  Yes.
Q  All right. And was the document that you prepared in the course of your business as an officer of the Oregon State Police?
A  Yes.
Q  And was this document filed in a manner which is, which such documents are normally filed in connection with your work?
A  Yes.
MR. ELLISON:  Your Honor, we would ask too, we would offer Defendant's Exhibit 142 into evidence, although it is not an exact copy it is actually a 302. It does contain the same information which is contained within Sergeant Zeller's report.
And I'd also like to point out, Your Honor, that we never received a copy of Sergeant Zeller's report, and I believe we are clearly entitled to it under the Jenx Act, number, Rule 16.
MR. CROOKS:  Your Honor, the United States objects to 142. If they wish to make a copy, I understand that they had gotten a copy of this as part of his lab report. If they have not, we'll be more than happy to run him a copy of Mr. Zeller's report.
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142 is a 302 interview with the FBI, and this is not what he's used to refresh his memory. We certainly object to this at this point being completely irrelevant.
If counsel wishes, we'll certainly run him a copy of Mr. Zellor's notes that he's referred to and attempt, if he wishes then to put those in and I take no position on that. But certainly 142 is not --
MR. ELLISON:  Your Honor, I submit that Defendant's Exhibit 142 is simply a copy, although a few words may have been changed, and Sergeant Zeller has stated that the content is no different between the two reports, and that is in fact a report of Sergeant Zeller's which was transferred onto a 302 of Special Agent Hancock.
THE COURT:  The objection is sustained.
Q  (By Mr. Ellison) On November 18th did you have occasion to examine the Ford Ranchero? Without looking at your notes, please, sir, at first.
A  I don't believe it was on the 18th.
Q  Would checking your notes help to refresh your recollection?
A  Yes.
Q  All right. Would you please check your notes.
(Witness checking his notes.)
A  It was not on the 18th.
Q  What day was it on?
A  It was on the 19th.
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MR. CROOKS:  I'm sorry, I didn't hear the last answer.
THE WITNESS:  It was on the 19th.
MR. CROOKS:  The 19th, okay.
Q  (By Mr. Ellison) Do you recall on the 18th of November having an interview with Special Agent Jacobs?
A  I don't recall.
{2383}
Q  I show you Defendant's Exhibit 143 for identification. See if that refreshes your recollection. I believe in the lower left-hand corner it states date interviewed.
A  I haven't seen this report before. I observed the document.
Q  Does this refresh your recollection that on November 13 of 1975 you had an interview with Special Agent Jacobs?
A  It does not.
Q  Would you dispute the contents that are contained within Defendant's Exhibit 143 as being an incorrect statement of interview with you by Special Agent Jacobs?
MR. CROOKS:  Your Honor, I'll object.
THE COURT:  The objection to that question is sustained. It's an improper question. He indicated he had never seen it before, he doesn't recall having an interview and Counsel will refrain from asking questions he knows to be improper.
Q  (By Mr. Ellison) Did you ever have an interview with Special Agent Jacobs?
A  I may have. I don't really recall.
Q  And Defendant's Exhibit 143 which I just showed you doesn't refresh your recollection as to any interview with Special Agent Jacobs?
A  I don't recall it. I talked with many FBI agents. I don't recall Agent Jacobs. I talked, I don't recall the {2384} incident.
Q  Did you talk to any special agents about the content what is contained in Defendant's Exhibit 143?
A  I'd say I probably did.
Q  But you're not sure?
A  I'm just not sure.
Q  Now on November 24 you provided certain items to the FBI, is that correct? Sir can you testify first without your notes and then if you can't remember --
A  I believe the date is correct. I'm not sure of the date. l believe it's the 24th.
Q  Rather than looking at your notes, I hand you Defendant's Exhibit 144 an ask if that refreshes your recollection.
MR. CROOKS:  May I ask a question in voir dire, Your Honor?
THE COURT:  You may.
MR ELLISON:  Your Honor, I don't believe there is any question to the witness pending.
MR. CROOKS:  Is that a document you have seen before Counsel's just handed it to you?
THE WITNESS:  I just saw it when he handed it to me the previous time. This is nothing I had seen before I came to the courtroom today.
MR. CROOKS:  By examining your own notes could you refresh you memory?
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THE WITNESS:  Yes.
MR. CROOKS:  Your Honor, we'll object to handing this witness a document which he has not seen before. He has testified repeatedly he's not seen it before. He indicates he wishes to consult his own notes and we would expect his wish be honored and we object to keep going into these 302s which this witness has said he has not seen, he has no knowledge of.
THE COURT:  The objection is sustained.
Q  (By Mr. Ellison) Sergeant Zeller, on November 24th, you can look at your notes if you'd like, did you hand several items to Special Agent Hancock?
A  Yes.
Q  I'd like you to compare Defendant's Exhibit 144 with your notes and see if those are the same items which you handed to Special Agent Hancock on November 24, 1975?
A  Yes. These are a part of the items I handed to him.
Q  And all of the items listed on the FBI 302 are listed on your own notes as being handed to Special Agent Hancock, on the 24th?
A  Yes.
Q  By November 24, 1975, had you conducted any comparisons with the known fingerprints of Leonard Peltier with any of the items listed on your notes which are comparable to Defendant's Exhibit 144?
{2386}
A  No.
Q  You never examined the .44 magnum and compared prints found on there the .44?
A  I did not.
Q  The same thing, we'll refer to as the other .357 rather than Government's Exhibit 35A?
A  I did not compare them.
Q  What about the radio microphone found in the mobile home?
A  I did not compare it.
Q  Now I'll hand you what is marked as Defendant's Exhibit 145 for identification. Would you please study this document.
Do you recognize this document, sir?
A  I recognize the pages I'm reading now.
Q  Do you need more time to look at it?
A  Yes sir.
Q  Please take whatever time you need to make sure you recognize this document.
All right. You've read the document?
A  I have.
Q  And you read it rather carefully didn't you?
A  Yes, I did.
Q  Have you ever seen this document before?
A  I have seen the original which was apparently, which this is apparently a copy.
{2387}
Q  This was an affidavit of yours which you signed on April 14, 1976, is that correct?
A  Yes.
Q  When you say you "signed this affidavit," did you look it over with the same care which you looked it over today?
A  Yes, I did.
Q  You understood the importance of this affidavit?
A  Yes.
Q  In fact, you knew that this was an affidavit which was going to be used in the extradition proceedings of Mr. Peltier?
A  Yes, sir.
Q  And so you made sure that everything that was contained within that affidavit was in fact true?
A  To the best of my ability.
Q  You signed this affidavit?
A  Yes.
Q  And this is in fact a true copy of the affidavit which you signed?
A  Certainly appears to be.
MR. ELLISON:  Your Honor, I show Defendant's Exhibit 145 to the government and ask that it be admitted into evidence.
MR. CROOKS:  At this point we object. There's absolutely no foundation to show any relevance to this case. Counsel wishes to make such a showing at the side bar, I'd be {2388} happy to listen but all he's done is shown him an affidavit.
MR. ELLISON:  An affidavit, Your Honor, prepared from the extradition of Mr. Peltier pertaining to his study and items he found. He's identified this affidavit as his own.
MR. CROOKS:  Your Honor, so what. Our objection is that there is no foundation to show this proves anything.
MR. ELLISON:  It will prove a great deal, Your Honor.
THE COURT:  Well, the Court will reserve ruling until I have had an opportunity to see the document.
Q  (By Mr. Ellison) I return Defendant's Exhibit 145 to you and ask you to look at paragraph 10. Please read paragraph 10 to yourself so you are fully aware of its contents.
Paragraph 10 refers to the .357 magnum which is marked as Government's Exhibit 35A, is that correct?
A  Yes.
Q  Tell me, Sergeant Zeller, did you prepare the affidavit yourself or did someone hand you the affidavit for your signature?
A  This was handed to me.
Q  Who was the person who handed it to you?
A  I believe I received it in the U.S. mail.
Q  Did you receive it from an agent of the Federal Bureau of Investigation?
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A  I'm not sure whether I did or whether I received it from a representative from the Canadian government.
Q  You read this affidavit and signed it for submission in the extradition proceeding?
A  I did.
Q  Now this paragraph pertains to the .357 magnum which has been identified as the .357 magnum of Agent Coler. I believe you testified on direct examination and on cross-examination that the last time you saw this revolver was on the 17th of November 1975.
A  I think that's true.
Q  At sometime you became aware that that .357 magnum was handed over to the FBI.
A  I became aware of it by reading another officer's report, as I recall the incident.
Q  Do you remember whose report you read?
A  I'm not sure but I believe that it was Officer Hanson's.
Q  And when was that .357 magnum given to the FBI based upon the report which you read?
A  Based on this report, it was November the 18th.
Q  1975?
A  1975.
Q  So that what is contained in paragraph 10 of your affidavit dated April 4, 1976 is true, is that correct?
A  This is true to the best of my knowledge, taking into {2390} consideration I read it from another person's report
Q  Do you know a special agent by the name of David Malam?
A  No.
Q  Is this the only affidavit which you completed in connection with the Canadian extradition proceedings of Mr. Peltier?
A  No.
Q  I will show you what has been marked as Defendant's Exhibit 147 and ask you to look at paragraph 10 of that affidavit as well as to examine the entire affidavit to see whether or not you recognize it.
{2391}
A  (Examining.)
(Counsel confer.)
Q  (By Mr. Ellison) For purposes of expediency, I would request that you look at the signature on Page 3 and the date, and then look at Paragraph 10 tell whether or not this is the same affidavit which you signed on March 4th, 1976?
A  I signed this on March the 4th, 1976.
Q  And Paragraph 10, as with the former affidavit, deals with the same .357 magnum, Coler .357 magnum, is that correct?
A  This paragraph deals with the same weapon.
Q  All right and when you -- by the way, who gave you this affidavit?
A  I received this affidavit in the mail.
Q  All right. You received it from the FBI, didn't you?
A  I don't know whether I received this from the FBI or from the Canadian authorities.
Q  And when you received this affidavit in the mail, you read it very carefully, didn't you?
A  I did.
Q  And you checked it for its accuracy before signing it because you recognized the importance of this document?
A  I checked it for its accuracy to the best of my recollection.
Q  O.k. You knew that this affidavit was going to be used in extraditional proceedings of Mr. Peltier?
{2392}
A  I did.
Q  This affidavit is different with regard to Paragraph 10, isn't it, from the April 4th affidavit?
A  Yes, it is.
Q  In fact, the April 4th affidavit states that you learned that on November 18th Officer Hansen handed Coler's .357 magnum to Special Agent Hancock, is that true?
A  Yes, it is
Q  And didn't you sign this affidavit on March 4th for the extraditional proceedings of Mr. Peltier, in which you stated that on November 17th, 1975, I -- meaning you -- handed the .357 magnum to David Milam?
A  I signed the statement.
Q  And this statement was false, wasn't it?
A  I am afraid that it was. It was false in that I was unaware of what actually happened, yes, sir.
Q  You signed an affidavit under oath for which the penalties of perjury accrue without checking it to see whether in fact it was true, you believed it to be true, didn't you?
A  To the best of my knowledge at that time that was the way that it had occurred.
Q  It wasn't true?
A  It was not true.
Q  Did you contact the people who sent you this affidavit to tell them that it wasn't true?
{2393}
A  I contacted them at a later date, yes.
Q  But you signed this affidavit at that time?
A  I did.
Q  When was it decided that your March affidavit would have to be changed?
A  I don't recall the date.
Q  But suddenly another affidavit mysteriously appeared in the mail for you to sign?
MR. CROOKS:  Your Honor, I will object to this as argumentative.
THE COURT:  Sustained. There is nothing to show that it was mysterious.
Q  (By Mr. Ellison) Also contained within both affidavits is the statement that you found a fingerprint of Leonard Peltier's on the microphone in the mobile home, is that correct?
A  Yes.
Q  Isn't it a fact that back in November you made a comparison of the prints of Leonard Peltier with the prints that you took off that microphone and found that there were no prints of Leonard Peltier's?
A  No.
Q  Isn't it a fact that you compared the prints found on the .44 magnum with the print comparisons that you had of Leonard Peltier's and found that there were no comparisons?
A  No, that is not a fact.
{2394}
Q  Didn't you tell Special Agent Hancock on November 17th that this was in fact the case?
A  No.
Q  I refer you to Defendant's Exhibit 142 for identification, and ask you to look at Page 2?
A  (Examining).
Q  The last paragraph on that page.
A  (Examining).
(Counsel confer.)
Q  (By Mr. Ellison) Did you ever tell an agent of the Federal Bureau of Investigation in either words or substance what is contained in that last paragraph to Special Agent Hancock's 302 interview with you on November 17th, 1975?
A  I don't recall that I did.
Q  Even after looking at this paragraph, it doesn't refresh your recollection?
A  After looking at it, I began to wonder whether I did or not. However, don't recall the incident.
Q  Do you deny that you told Agent Hancock this, what is contained in that paragraph?
A  I do not deny it. I say to the best of my recollection I don't recall it.
MR. ELLISON:  I have no further questions at this time, Your Honor.