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

SA HODGE

VOLUME 16

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 WEDNESDAY MORNING SESSION
 April 6, 1977
Whereupon, the following proceedings were had and entered of record on Wednesday morning, April 6, 1977 at 9:00 O'Clock, A.M., without the jury being present and the defendant being present in person:
THE COURT:  Are counsel ready to proceed?
MR. CROOKS:  Your Honor, there is one matter which I should report the Court on. This is the request by defense counsel that we check again on Mr. Hancock's 302 forms. We have done so, we've checked personally with Mr. Hancock as well as the people in Oregon to make sure that we've turned over all of the 302's. And we find that we have turned over every 302 that Mr. Hancock has made concerning his activities.
Obviously there are some 302's of witnesses, witness interviews, which have not been turned over, but which are not 3500 material. But every 302 that he has made out where he's observed anything himself has been turned over. And some of his interviews of course have also been turned over to Mr. Hanson and Mr. Zeller.
So to that extent even those have been turned over in their 3500 material. But there's nothing else that either the FBI or this office can find.
THE COURT:  Is there anything more to be presented before the jury comes in?
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MR. TAIKEFF:  No, Your Honor.
THE COURT:  Jury may be brought in.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
THE COURT:  You may proceed.
MR. SIKMA:  At this time, Your Honor, with regard to Government Exhibit 34-AA, I would like to read a stipulation. Paragraph 16 of the stipulation with regard to Government Exhibit 34-AA. "Government Exhibit 34-AA look alike gun for Government Exhibit 34-A, AR-15 .223 caliber semiautomatic rifle. It is hereby stipulated and agreed between the parties that Government Exhibit 34-AA is a replica of Government Exhibit, Government's Exhibit 34-A; that Government's Exhibit 34-AA may be introduced into evidence to establish the appearance of Government's Exhibit 34-A prior to its being damaged. Further foundation is waived."
Q  (By Mr. Sikma) Mr. Hodge, yesterday I believe we were going over the chart which is behind you, Government's Exhibit 34-1, and with regard to Government's Exhibit 34-H we had just finished talking about 34-G I believe, which were from Williams' car, bullet fragments. Now, with regard to Government Exhibit 34-H we had started to talk about that. What kind of an examination did you make with regard to Government Exhibit 34-H?
A  I examined Government's Exhibit 34-H to determine its caliber, to determine the type of rifling in the barrel from which it was {3244} fired and to determine if it had any microscopic marks on its surface from the weapon which fired it. So that I could possibly associate it with, or identify it with a particular firearm.
Q  I will show you what is offered into evidence of Government Exhibit 34-H. What were your findings with regard to Government Exhibit 34-H which on the chart is marked as from ground beneath bodies of Williams and Coler?
A  I found Government's Exhibit 34-H to be a .22 caliber copper jacket, copper bullet jacket. That it had been fired from a barrel which contained six grooves twisting to the right, and that it did not have any microscopic marks remaining on its surface which would permit me to identify it with an individual firearm.
Q  Could that particular bullet fragment, 34-H, have been fired from Government Exhibit 41-A which is also a .22 caliber rifle?
A  No, sir. It could not have been.
Q  And why not?
A  Well, first of all the ammunition designed to be fired in Government's Exhibit 41-A is .22 Rim Fire ammunition and it uses a different type of bullet.
Secondly, the number of grooves in the barrel of Government's Exhibit 41-A is eight and this bullet was fired from a barrel which contained six grooves.
Q  Could it have been fired from any .30 caliber weapon?
A  No, sir.
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Q  It would have to be something of the nature of a .22 caliber and center fire; is that correct?
A  That's correct, sir.
Q  Of those items you've seen on that rack over there; is that correct?
A  Yes, sir.
Q  Okay. Of those items, those firearms on the rack, which firearms could it have been fired from?
A  From Government's Exhibit 34-A.
Q  Then also if there, if this gun had been there, and I think we've agreed it's a look alike and not related to this offense in any way, it could have been fired from this gun as well; is that correct?
A  That's correct, sir.
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Q  Would you point up on Government's Exhibit 34 the microscopic comparisons that you have there by way of photograph and explain to the jury what they are.
A  The two photographs on either side of the chart are photographs which I took through the comparison microscope. They are large microscope photographs.
There is a line running down the middle of the photograph which is difficult to see. Nevertheless, it is there. This impression indicated by the pointer on the left side which is the cartridge case, extractor mark on the cartridge case which I fired in the laboratory (indicating).
Q  The configuration of that impression is identical to the configuration of the impression in the rim of Q 353 which is within the group 34C and that is the extractor marking on the rim of that case.
It is my conclusion based upon the microscopic matching and these impressions that Q 353 was loaded into and tracked from the K-40 rifle on 34.
In like manner the same marking appears on Government's Exhibit 34B which was my specimen, Q 2628, and this is an enlargement of the marks representative as I viewed them in the comparison microscope in the laboratory. On one side, the left side is Exhibit 34B and the other side is my test fire cartridge case.
Q  Now those are extractor marks, is that correct?
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A  That's correct, sir.
Q  Does that positively identify Government Exhibit 43 as having connection, definite connection with Government Exhibit 34A?
A  It positively identifies Government's Exhibit 34B as having been loaded into and extracted from Government Exhibit 34A.
Q  Now I believe you indicated earlier that you could not make firing pin comparisons because of the damaged nature of Government Exhibit 34, Government Exhibit 34A, is that correct?
A  That's correct.
I formed my conclusion as to whether or not the fire pin impression and the breech face marks can be cartridge casings represented by 34C series of exhibits identical with the 34A firing pin and 34A bolt face because of a lack of marks on the bolt face and the condition in which I received it.
Q  Now any one of three ways, tell me whether or not it's correct that you can make a positive connection with an exhibit such as 34A in any one of three ways? One would be bullet extractor marks, the other would be breech face marks and the other would be firing pin impressions, is that a correct statement?
A  Well, if I may rephrase that, the positive identifications for determining whether a cartridge case has been fired in a gun generally consists of the marks put on the cartridge case {3248} by the fire pin of the weapon or the marks left on the cartridge case as it recoils against the breech of the weapon and from those markings the firearms examiner can conclude that a cartridge case has been fired in a weapon to the exclusion of all others. The other markings left on the cartridge case by various mechanism parts, one of which is the extractor, can allow the firearms examiner to determine if that cartridge case has ever been in the mechanism. It does not necessarily mean that the cartridge case has been fired in that gun because the markings can be placed on the cartridge case without actually firing that cartridge case. In other words, put the shell in and then throw it out of the gun without pulling the trigger will often leave this type of mark on the cartridge case.
Q  Now the types of marks in 34C which consist of 35 cartridge casings, expended cartridge casings, 34D which is one, 34B which is another, 34E which is another and 34F which is another all had the same type of markings, is that correct?
A  Yes, sir. That's correct.
Q  They were all extractor marks from Government Exhibit 34A?
A  Yes, they were.
Q  Did you examine 34B to determine what kind of a, where that cartridge casing was made? In other words, the manufacturer of 34B?
A  Yes, sir, I did.
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Q  Now is there some place on a cartridge casing which would tell you where a particular cartridge casing comes from as far as the manufacturer is concerned?
A  Yes. The manufacturer's name is stamped right into the head of the cartridge case.
Q  I will show you Government Exhibit 34B and 34C. Could you show the jury, illustrate to the jury, if you would, where this marking is made.
Q  The initials of the manufacturer or an abbreviation of the manufacture's name in almost every cartridge case commercially manufactured in the United States is stamped right in the head of the cartridge case itself surrounding the primer. In this particular case, cartridge case from group 34C, the initials R with a dash and then a P standing for Remington-Peters is stamped up above, then the caliber designation, .223 Remington is stamped down below.
Q  and with regard to Government Exhibit 34B, where was that manufactured?
A  Government's Exhibit 34B has the same initials as the one I just mentioned. It has an R with a dash and a P and then .223 Remington stamped underneath that. The R dash P stands for Remington-Peters.
Q  With regard to Government Exhibit 34C, do you recall the manufacturer, or, Government Exhibit 34D, do you recall the manufacturer of that Government Exhibit 34D?
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A  Government Exhibit 34D has the stamp indicating it was manufactured by Winchester Western.
Q  And I have a question with regard to, are you familiar with the AR15 or used in the form of a military M16 as far as the FBI is concerned?
A  Yes, sir.
Q  Now are you familiar with how the FBI or where the FBI purchases its ammunition for the AR15 or the M16 as it's militarily designated?
{3251}
A  The majority of it is military ammunition.
Q  And from what company do they purchase ammunition for the M-16?
A  I don't know if we get it from the -- it is manufactured militarily by different organizations. The major ammunition companies make it, Winchester and Remington, and also arsenals like Lake City, arsenals manufacture it.
Q  What kind of a stamp does Lake City have?
A  It has a LC and the year of its manufacture underneath.
Q  Does it have the -- how does it have a caliber designation, do you know?
A  It does not have a caliber designation.
Q  The FBI in purchasing ammunition, or for an AR-15, would purchase ammunition from Lake City and those would have a LC designation?
MR. LOWE:  Objection to the form of the question, your Honor. It is quite leading.
THE COURT:  Sustained.
(Counsel confer.)
Q  (By Mr. Sikma) Would ammunition purchased from Lake City have a designation?
A  Yes, sir.
Q  And that designation would be what?
A  LC.
Q  Are you familiar with the -- how rounds are ejected from {3252} an AR-15 or a M-16?
A  Yes, sir.
Q  Now, would you designate or tell the jury what the difference is between an AR-15 and a M-16, if you know?
A  Both the AR-15 and the M-16 is manufactured by Colts Firearms Company in Connecticut. The essential difference is that the M-16 is a military rifle, and it has a full, fully automatic capability of fire through a selector switch on the receiver. There is also a rod on the side of the weapon which allows the bolt to be driven home should the gun become dirty, and that is the essential difference.
In appearance they are almost exactly like with the exception of that rod on the side of the receiver.
Q  Where would that be on this Government Exhibit 34-AA?
A  It would be right on the right side of the weapon coming out back to here (indicating). The selector switch is identical to this except that it has one more position on it, and that's fully automatic.
Q  To your knowledge, or do you have an opinion as to whether or not the automatic rifle designator switch has any effect on the -- on whether or not or how the expended cartridge casings are expelled from the firearm?
A  The fully automatic switch adjusts the sear only. It does not interfere with the spring mechanism or the recoil operation of the weapon.
{3253}
Since the parts are interchangeable in the bolt, it would not in my opinion affect the way that the cartridge cases were ejected from the weapon when the weapon is fired in the semi-automatic method of firing.
Q  Did you conduct any test to determine general ejection patterns of various random AR-15's?
A  Yes, I did.
Q  Or M-16's?
A  Yes, sir, I did.
Q  Would you tell the jury what you did in this regards, what kind of tests you ran?
A  I selected five weapons of this type, two were AR-15's, the civilian model, and three M-16's which are the military weapon.
I took them to our training facilities at Quantico, Virginia and fired 20 rounds from each weapon in -- 10 from the shoulder area and 10 from the hip. I used both military and commercial ammunition, and I charted where the cartridge cases were thrown from the gun.
Q  What kind of an arc, you know, do the cartridge casings usually take as they leave the firearm?
A  In the case of the five weapons that I observed, the cartridge cases, as the weapon was held vertical to the ground, the cartridge cases were thrown practically horizontally out of the gun, flat out. They may have rised an inch or two in some {3254} instances, but that was about all.
Q  Did you make any chart of your findings with regard to the ejection patterns for an AR-15 or M-16?
A  Yes, I did.
Q  I will show you what is marked as Government Exhibit 34-I, and ask you whether or not you recognize it?
A  Yes. These are the charts which I made from the shooting of these five weapons, from both the hip and the shoulder position.
Q  Now, did you take anything into consideration when you were making those charts as a result of those tests, or what was your purpose of making the tests in the first place?
A  I was asked the question, how far and in what direction would a weapon of this type eject a cartridge case, and the purpose for making the chart and running the test was to answer that question.
Q  Now, in this regard did you take measurements of a 1972 Chevy Biscayne, of the trunk area, and measurements from the ground?
A  Yes, I did.
Q  O.k., and what did you find in that regard, what did you do in that regard?
A  I found a 1972 Chevrolet Biscayne, and I measured the lip of the trunk, the distance that it was off the ground, the floor.
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Q  And when you made these ejection patterns, would you describe to the jury what you did?
A  Well, myself and another agent went down to Quantico, and we took with us 200 rounds of ammunition and five weapons selected from the reference collection of guns in the laboratory.
The other agent fired the weapons, and I charted the location of where the cartridge cases fell; and then I made a notation of where each cartridge case fell and then plotted those on this graph so that I would have a pictorial representation of the general area that these five guns would eject the cartridge cases.
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Q  Did you make a determination whether or not at various distances any or all of the cartridge casings fired as you had them fired from a gun would have cleared the trunk of the 1962 Biscayne?
A  The distance would vary considerably because the pattern fell over a very large area. The furthest cartridge case, furthest that any of the cartridges that I fired was thrown was approximately fourteen feet.
And considering the arc that these cartridge cases fell in when the weapon was fired from the horizontal position, I'm sorry, from a vertical position, the cartridge cases travel in the horizontal, that would be approximately thirteen feet away from the weapon that the, that the maximum distance from the test that I conducted.
Q  And what was the minimum distance of any of those?
A  I didn't attempt to determine a minimum distance. Some of the cartridge cases fell fairly close to the weapon within a foot, two foot, in that area. So that it could have been fairly close.
Q  But it varied from a foot to fourteen, thirteen feet as far as clearing the --
A  I think the distance is a little further than a foot. Maybe three feet was the closest from the hip position, and approximately three feet from the shoulder position, too, was the closest.
Q  And what about the distance that these would have cleared {3257} the trunk? In other words, gone into the trunk?
A  On the closer shots?
Q  Yes.
A  Well, the cartridge case would be falling somewhat steeply at that, so it would be in that area, fairly close.
Q  And what about the furthest distance that it would clear the trunk?
A  The cartridge cases that I observed went out horizontally and dropped off slowly. And as they lost energy, dropped off quickly so that the arc was in that respect. The 33 inch distance, which is the lowest part of the trunk of a Chevrolet Biscayne that I measured, would need cut off maybe a foot of the trajectory of the cartridge casing so that from what I observed 13 feet would be in the order, the maximum distance for the guns that I observed.
Q  Okay. Now, would you take the, take the Government exhibit and explain to the jury how you coded the various, the charts.
A  Should I step down?
MR. SIKMA:  Your Honor, at this time I would offer into evidence Government Exhibit 34-I.
MR. LOWE:  SubJect to the record, Your Honor.
THE COURT:  34-I is received.
MR. SIKMA:  Your Honor, could the witness step down?
THE COURT:  Witness may step down.
A  In conducting this test I color coded the five weapons that {3258} I used as to the areas where the cartridge cases fell. The blue and the black colors are the A-15's. And you notice that the first AR-15 which I tested, the blue shaded area, that is the area that that cartridge, that weapon threw the cartridges, cartridge cases that I fired.
The number 2 weapon threw them in almost exactly the opposite direction. The blue gun is kind of up and to the right, whereas the second weapon is way back behind the shooter to the right.
The three M-16 weapons, the green, yellow and red tended more, well, the green and the red tended more to throw the cartridge cases directly to the side of the shooter, to the right. Whereas the yellow gun, the middle M-16 threw it again, well, to the rear of the shooter. But those are the areas that I observed and that is from the shoulder position.
The red dots indicate military ammunition which is a full metal jacket bullet, not a soft point hunting load. The blue dots represent commercial ammunition which has a soft point bullet designed for shooting game.
From the hip position the pattern is very similar in general appearance, only just a little bit closer in. We have the edge of our circle going out a little bit beyond nine feet, here we're going out ten feet on the shoulder position. The added height, letting the cartridge cases go a little further before they hit the ground.
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Q  (By Mr. Sikma) I show you with Government Exhibit 34-AA, would you, tell me what, how the gun was held when pointed in that direction. Show the jury how the AR-15's were held when you were conducting this test, and in what two positions.
A  On the first part, the shoulder position, the shooter held the weapon in this manner (indicating), right at the shoulder. And in the second test he held it down here (indicating), at the hip.
Q  Now, I want to ask you some other question. If the firearm were pointed in a manner down toward the ground would this make some difference in the pattern that would be displayed?
A  Well, the height of the ejection port off the ground does affect the distance as we have seen from the hip and the shoulder position. The higher the ejection port is off the ground the further the cartridge cases will travel.
The angle at which the ejection port is held may tend to change the pattern. Now, I did fire a few rounds with the weapon turned sideways.
Q  This way (indicating)?
A  With the ejection port straight up in the air. And at that time the cartridge cases went about a foot up in the air and then fell back down. So that the angle that the weapon is held at can affect the pattern. And if it is held at an extreme angle, such as straight up in the air, it will tend to shrink the patterns, more of the energy will be dispersed in the cartridge {3260} case going up in the air rather than traveling out.
Of course if it's held straight down, then the cartridge case will be thrown down into the ground quicker.
Q  In all cases is, tell me whether or not it's true in all cases the cartridge casings were expended somewhat to the right and either to the front or to the rear somewhere in an arc of about sixty degrees; is that correct?
A  The actual arc from the gun, is you take your extreme cartridge cases thrown to the right and forward, and your extreme cartridge cases thrown to the right and backward, that arc is approximately 120 degrees.
It's a rather sweeping arc, but in all cases they went to the right and either straight out or in some direction forward or behind for the five guns.
Q  With regard to Government Exhibit 34-H, what kind of jacket was on that round?
A  Well, 34-H is a copper bullet jacket. The lead metal core is missing. It's a copper jacket.
Q  Is that a hard or soft jacket?
A  It is a relatively thin, relatively hard jacket.
MR. SIKMA:  I have nothing further at this time.
MR. LOWE:  Can I have a moment, Your Honor?
THE COURT:  You may.
(Defense counsel conferred.)
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 CROSS-EXAMINATION
BY MR. LOWE
Q  Mr. Hodge, my name is John Lowe. We've met before, haven't we?
A  Yes, sir.
Q  And we have talked about some of the matters that you've testified here today, have we not?
A  Yes, we have.
Q  In conjunction with your examination of various items in this case did you prepare any 302's, or do you utilize laboratory reports almost exclusively for making reports?
A  All of my findings are in laboratory reports.
Q  So that there are no 302's which you prepared as such?
A  No, sir.
Q  In the process of making your examinations as you go along I gather that the procedure is to first receive the item in some way, either personally delivered to you or in the mail or some other form, and when you receive the item I gather that at least in this case there was some kind of note either attached to or inserted in a plastic envelope with the item; is that correct?
A  That is correct, for a lot of the items. All of the items did not have a note, but they were contained in such a manner that marked with a number or something so that I could correlate where the item came from with the incoming communication.
Q  All right. Would the incoming communication accompany the item?
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A  yes, sir. Would accompany the package.
Q  Right. So in other words if you opened up a box you might find like an invoice or an inventory sheet on the top which would give numbers which you could identify to the items that are in the box?
A  Yes, sir.
Q  And as to some items they may have a piece of paper in an envelope with them; is that correct?
A  Yes, sir.
Q  And other items might even be marked directly on them, depending upon what type of information or what type of item?
A  Yes, sir.
Q  When you receive them I gather that one of the first things you do is to assign a number to them, a Q number which identifies it for your purposes in making tests and in making an inventory; is that correct?
A  That is correct.
Q  And is at least this information in a given investigation, in this case the Resmurs investigation, in theory there would only be one item which is numbered Q254, for example? Is that the hope and theory of it?
A  For a given case we have, you could have the same Q number assigned to two different items and two different cases if you follow me.
In other words, if I make an inner comparison between {3263} one case and another case I could be comparing the same Q numbers. But what you say is essentially correct. We try and keep the Q numbers on individual items within an individual case.
Q  And to the best of your knowledge and belief in this case, that is the Resmurs investigations and all of the items in evidence, that was followed in the sense that there are no duplicate Q numbers; is that correct?
A  Well, I believe there are duplicate Q numbers in the weapons because some of them were compared from different cases.
Q  Are you saying weapons or are you talking about K numbers for weapons?
A  K numbers.
Q  I was asking Q numbers.
A  Okay.
Q  Is that correct as to Q numbers as far as you know?
A  As f ar as I know.
Q  mere are some K numbers which would have to be identified to specific laboratory reports because there might be more than one K-1 weapon for example; isn't that true?
A  Yes, that's true.
Q  But by looking at the particular laboratory report you would find whether K-1 was an AR-15 or a .303 or whatever it might be because it's identified within the report, is it not?
A  Yes, sir.
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Q  And when you have other reports identifying a test made or a comparison made between a cartridge and a weapon, if there is a reference to K-1 it certainly should and most normally does refer to K-1 as shown in a particular laboratory report; isn't that correct?
A  Yes, sir. If it's different from the one that you are reading at the time.
Q  Yes.
A  Yes.
Q  And after you put your Q number on the item in some way by scratching or writing in ink or some other method you have, and I gather you initial it then if you can; is that correct?
A  Yes, sir.
Q  So that in the future if you want to look at a cartridge case, let's say, and see if you had ever examined it you hopefully would find a Q number either scratched or written on it and your initials E.H. for Evan Hodge, am I correct?
A  You are correct.
Q  There after having marked the items you submit it to a series of examinations, perhaps tests, and these may vary from cartridge to cartridge, gun to gun, item to item, depending upon what information is sought or what information is suspected might be available, would that also be fair to say?
A  Within certain limits, with weapons there are very few tests that we actually conduct. We generally just make a comparison.
{3265}
Other items of evidence may go to other examiners for additional tests.
Q  All right. After you, or during the time that you are making the examination, as you find either information of significance or if you find negative results do you make notations as you go along for purposes of later putting them in a laboratory report?
A  Yes.
Q  And do you use a structured method of doing this, that is, do you have some sort of laboratory worksheets that you use, or do you simply make them on a yellow pad or something and then assemble them in a file later?
A  We have what we call laboratory worksheets and that contains a listing, an inventory of all of the items that we have received in that particular case, and it is from that laboratory worksheet that we compile our final laboratory report in any given case.
Q  All right. And I trust that you, to the best of your human possibility, accurately write down the results of your examination on the worksheet and then accurately reflect in your notes the information which you extract from the worksheets at the time you write the report?
A  I write it on notes which are attached to the worksheet, yes.
Q  Yes. And to the best of your ability the information you write down is an accurate reflection of what you find, and the {3266} ultimate report contains an accurate reflection of what your notes show?
A  Yes, sir.
Q  Then you submit that report that you prepared to the requesting agency, or the requesting person I presume and perhaps some other distributions to files and various places, would that be correct?
A  That's correct.
Q  Do you maintain a copy of those laboratory reports in your own files?
A  I did in this particular case.
Q  All right. Prior to coming here to testify today what have you in the last, let's say, the last two weeks reviewed your laboratory reports in order to prepare for testifying here today?
A  Yes, sir.
Q  Now, can you give me just a ball park estimate of how many pages of laboratory report you personally authored in this case to give the jury some idea of the amount of paperwork and examinations that we're talking about?
A  No, sir. I really can't. I have before me a copy of all the laboratory reports which were issued in this matter.
As to these, these are all the findings from various examiners are included within. As to how much of this is actually my work I really have no idea.
Q  All right. Are then you reporting and testifying today in {3267} some instances as to examinations that were made by persons other than yourself?
A  No, sir, I don't believe I have.
Q  Well, all right. I'm asking you, but you've got those reports, whether they're your reports or ones that somebody else made examinations on, you have in front of you?
A  Yes. This includes all of the laboratory reports that were issued in this matter.
Q  Okay. What I'm asking is that to try and connect up some people here. What relationship if any do you have with Special Agent Cunningham?
A  Special Agent Cunningham is my immediate supervisor.
Q  Now, in reviewing your laboratory reports you've reviewed, would it be fair to say that you've reviewed over a hundred pages of laboratory reports regardless of who may have prepared them?
A  I, in reviewing, I only reviewed the work which I did.
Q  Well, would you say that may be 20 or 30 pages of work that you did at various times?
A  Oh, yes, that would be very conservative.
Q  I'm just trying to get some sense for the jury as to how many pages.
And in these pages the information, the lists of items by Q numbers or K numbers, the various reports of comparisons and everything are basically typed single spaced on 8-1/2 by 11 {3268} pages, are they not?
A  Yes, sir.
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Q  Would it be reasonable for me to assume that you do many other comparisons and examinations other than just in this case?
A  Yes, sir.
Q  Would it be reasonable for me also to assume that there is no way humanly possible to keep all that information in your head and that's one of the reasons you put it down at the time you find it?
A  That's correct.
Q  Would it also be true that this is not a case of your looking at a laboratory report to refresh your recollection but really that your recollection was put down on paper at that time and you must rely on the report as to looking at most of that information to tell what you did and what you found?
A  In some of the instances that's true and other instances I would remember.
Q  But in the main, with all the hundreds of cartridge casings and items you examined, except for some items that maybe stick out in your memory, in general you would have no particular recollection even if you read the report, would you?
A  I think that's probably fair statement, at least for half the time.
Q  That's certainly not saying anything more than you're a human being and you have got some limitations as everybody does on what you remember?
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A  Some of the things I remember and some things I don't.
Q  Did you review your working papers prior to testifying, coming here to testify today, let's say within the last month?
A  Yes, sir.
Q  Do you have those with you also?
A  Yes, I do.
Q  When was the last time you looked at them?
A  Well, I may have looked at them yesterday, as early as yesterday.
Q  And the last time you looked at your laboratory reports?
A  Would be this morning.
Q  Now we've talked a lot about a number of different kinds of ammunition components, many of which you examined. I think you only examined their cartridge casings, some of them actually had live rounds, full cartridges either in boxes or loose. Was there any kind of ammunition components, including the .223 ammunition components, you examined which were not available commercially and were not legal to possess?
MR. SIKMA:  Your Honor, I would object to that question. It's too broad, calls for a legal conclusion on the part of this witness which he would not be entitled to make. There may be hundreds of reasons why something might not be legal to possess and I think that the question is too indefinite.
THE COURT:  Well, the witness hasn't testified as to {3271} whether or not he knows.
MR. LOWE:  I'll rephrase the question, Your Honor. That's no problem.
Q  (By Mr. Lowe) Were there any ammunition components, any of the calibers, any of the types of cartridges or any of the cartridges that you observed in this investigation which cannot be purchased commercially?
A  The only area which I don't know about commercial availability would be with the .223 ammunition. I do not know if that has been released military, if that has been released for public purchase or not. Otherwise, no.
Q  Now are you speaking then of what I think perhaps is usually called 5.56 millimeter ammunition which is actually manufactured for military purposes?
A  Yes, sir.
Q  You are well aware, I trust, that there are commercial manufacturers who sell .223 ammunition, am I correct about that?
A  Oh, yes.
Q  And as to all of the weapons that you examined in this case, do you know of any of them which are not commercially available to buy through gun stores or gun order houses or whatever it might be?
A  The only weapon which is not commercially available is the M1 rifle. I don't know again as in the case of the ammunition if that were put on the market for public sale like some of the {3272} old 45s through the Director of Civilian Marksmanship.
Q  You're not saying that M1 rifles are not sold by commercial gun stores secondhand, for example, or any store that has some M1s that you obtained from some stores, you're not saying that those are not sold in the United States, are you?
A  I'm saying I don't know if they are.
Q  To your knowledge is there anything illegal about the gun store selling an M1?
A  Not --
Q  If it has one.
A  No. If it's not a stolen weapon, cleared military property, I'm sure it would be perfectly legal.
Q  Now you had submitted to you a lot of ammunition components from what I will generally describe as the Jumping Bull area which includes what sometimes has been referred to as the crime scene and tent city and some other immediate adjacent areas. If I refer to the Jumping Bull area, will you just assume that we're talking about that small area right around Oglala, South Dakota, which includes the information shown on Government Exhibit 71 behind you and the environment so we know what --
A  I have a lot of items identified as having come from tent city. Would you include that area?
Q  Yes. I'd include that area.
{3273}
Now as to all of the components that you received, am I correct in saying that the ones that came from the Jumping Bull area were received -- let me ask you first of all if you have in front of your laboratory report dated August 5, 1975? I believe one of your first ones.
A  Yes, sir, I do.
Q  I believe that indicates that the specimens were received on July 5, 1975 and they were personally delivered by Special Agent William R. Fluharty, is that correct?
A  Yes, sir. They were delivered by both Special Agent William Fluharty and Cortland Cunningham.
Q  I believe you also received some other components from Special Agent Brugger, did you not, either directly or through mail or something?
A  Those were sent to me by railway express.
Q  Were those from Special Agent Brugger?
A  Special Agent Brugger it's my understanding prepared the package and communication to submit those to me.
Q  Let me ask you, maybe I'm just not understanding, how do you know or do you have any personal knowledge as to who sent them? You say it's your understanding. Is that based on what somebody told you or your own knowledge?
A  That's based on what somebody told me. I have no personal knowledge except I received those items from Rapid City by railway express.
{3274}
MR. SIKMA:  Your Honor, may we approach the bench?
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. SIKMA:  I want to find out here if we're running into some problem with regard to the chain of custody as far as these items which were sent by railway express or if there is some indication that they were not in fact packaged sometime around the 5th of July. I believe we're talking about the .223 that was sent in by railway express.
MR. LOWE:  I hadn't intended to raise any such question. We're trying to get a factual basis established.
MR. SIKMA:  It would appear that that's the case from the questions, and whether or not he knows that, and it puts us in a position if you're going to raise that we would possibly have to call this other agent.
MR. LOWE:  At this point I have no basis for raising that. Just trying to establish what he said.
MR. SIKMA:  All right.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
Q  (By Mr. Lowe) Am I correct in saying that all of the cartridges and other ammunition components from the Jumping Bull area that you received were either received in that shipment you received from Special Agent Fluharty or from the shipment {3275} you received by railway express from Special Agent Brugger, is that correct?
A  The great majority of them. I cannot think of any items that I examined from the area you described as not having come from there. However, I would hesitate to exclude anything based upon my memory.
Q  I'm not trying to trick you. I have no knowledge myself of any other components except in those two shipments. What I'm trying to determine is whether you have any that I just may not be aware of.
Q  No. I can't think of anything that didn't come in with those two shipments.
MR. LOWE:  May we confer for just a moment, Your Honor?
THE COURT:  You may.
(Counsel confer.)
MR. LOWE:  Your Honor, Mr. Sikma has agreed with me to stipulate that all components found in what I have described as the Jumping Bull area, in other words, tent city, the crime scene and immediate environment such as the so-called escape route and so forth, some open fields around the area, were submitted for testing by the FBI firearms laboratory either by the shipment or the delivery of Special Agent Cunningham and Special Agent Fluharty or by the railway express shipment of Special Agent Brugger.
{3276}
Did I state that correctly?
MR. SIKMA:  Yes, Your Honor.
THE COURT:  The record may show the stipulation.
Q  (By Mr. Lowe) Now given -- strike that.
You never actually went to the Jumping Bull area, did you?
A  No, sir.
Q  So you are in a position of receiving items, identifying them as to particular pieces of material you received, making tests and reporting them to somebody else without knowing of your own knowledge where they came from or how they were found?
A  That's correct.
Q  And what follows from that then, I assume, is that you have no way of knowing whether you saw all of the casings or ammunition components of which were found in the Jumping Bull area but can only testify that you observed the ones that were sent to you by these two different sources?
A  Yes, sir.
Q  Now you mentioned before FBI ammunition and you were talking about Lake City. Is that an arsenal?
A  That is an arsenal; yes, sir.
Q  And you indicated it was stamped "LC" on the bottom of the cartridge casings and did not have a .223 designation. I was not clear when you were saying that whether you were testifying that Lake City Arsenal is the only arsenal that {3277} produces .223 or 5.56 millimeter ammunition. Is that what you were testifying?
A  No, sir. Only that those cartridges manufactured in the Lake City Arsenal bear the head stamp "LC" and the year they were manufactured.
Q  In fact, are there other arsenals that you know of or other sources that produce 5.56 millimeter ammunition and .223 caliber ammunition? Let's say, first of all, for the military.
Q  There are other sources other than Lake City Arsenal, yes, sir.
Q  Some of those are commercial, are they not?
A  Yes.
Q  And do I understand your testimony to be that the FBI only buys .223 or 5.56 millimeter ammunition from, or acquires it from the Lake City Arsenal?
A  No, sir.
Q  So that it is possible that at any given time an FBI agent who has 5.56 millimeter ammunition or .223 caliber ammunition for his M16 might have a commercial brand or Lake City brand or some other arsenal in his possession?
A  The ammunition which the Bureau sends out for use in this weapon is military. It is not restricted to Lake City. It could be any military manufactured cartridge.
Q  I don't think you understood my question.
{3278}
A  Would you rephrase it.
Q  I'll say it again.
At any given time an FBI agent in the field who has 5.56 millimeter or .223 caliber ammunition used in the M16 might have in his possession for that purpose commercial ammunition or military ammunition?
A  Yes, he could have.
Q  And I think we've been saying this, talking around this, but let's pin it down. The M16 and AR15 fire the same ammunition and the bore and everything in those weapons are really the same except for automatic and semi-automatic feature, aren't they?
A  That and the attachment on the side of the gun.
Q  Yes.
A  Yes.
Q  Now there has been some testimony about FBI agents firing weapons and BIA police officers in this general Jumping Bull area on June 26th. Did you receive any cartridge casings which either you were told were fired by law enforcement personnel or which you later made a determination on your own were fired by law enforcement personnel?
A  Well, only with the exception of the weapons that we have here.
Q  All right.
Excepting the five weapons, I believe it was, the {3279} shotgun, the 308 and the pistol of Special Agent Coler and the pistol of Special Agent Williams, I guess that's four weapons, other than those four weapons, did you receive any ammunition components which you subsequently determined or were told came from law enforcement personnel?
A  No.
Q  So if any such cartridge casings were found, they were removed from the total body of ammunition components prior to them being received by your laboratory?
!A  I cannot speculate on that. I did not have any weapons to make a comparison with those items, other than the four weapons I received here. I do have a large number of fired cartridge cases which I have not identified with any weapon.
Q  All right.
There has been some discussion about the term, "high velocity." First of all, would it be correct for me to say that there is no standardized definition of exactly what is meant by the term "high velocity," in terms of from so many feet per second to so many feet per second and rather it's a judgmental thing and you might have an opinion and another firearms expert might have an opinion and a manufacturer might have a different opinion?
A  From my point of view I know of no standardized definition of that; no, sir.
Q  You have testified that the AR15 is a high velocity type {3280} weapon, I believe.
A  That would fall within my definition of the term; yes, sir.
Q  All right.
Would an M1 be a high velocity weapon?
A  Yes, sir. It could hit --
Q  And would a .303 British Enfield be a high velocity weapon?
A  Yes, sir.
Q  And could you name other weapons that you would consider a high velocity weapon?
A  Yes, I could.
Q  Would you do it.
A  Well, there are several. Would you like me to restrict it to the items we have here?
Q  First of all, yes, restrict them to the weapons we have here.
A  Well, the M1 would be considered a high velocity weapon. The 303 British, the AR15, the 30-30 could be considered as high velocity. The others are relatively, the .44 magnum is relatively low velocity, under 2,000 feet per second, so I wouldn't group that in the same class with the more high powered. The same thing with the .45 automatic.
Q  I assume other than the weapons we have here there would be a lot of other weapons you could name from your knowledge of weapons that would also be considered high velocity?
{3281}
A  Yes, sir.
Q  When you said before the .45 automatic, were you speaking of the cartridge or of the characteristics of the weapon, the Commando Mark III weapon as being an automatic weapon?
A  In that particular instance I meant the weapon itself.
Q  You're saying that the .45, the Commando Mark III, .45 weapon up there is a fully automatic weapon?
A  No, sir. A .45 auto being the cartridge designation.
Q  That's what I was getting at.
A  Okay.
Q  We have had some discussions here, as you might expect, about automatic and fully automatic. There is no doubt in your mind that Exhibit, I think it's 37A, the Commando Mark III is a semi-automatic weapon only, isn't it?
A  That's correct.
{3282}
Q  In addition, you have identified these various weapons that were high velocity. There are changes that can be made with particular ammunition if you load it yourself by loading it with a higher or faster burning powder and doing other things which would raise or lower the velocity of different ammunition components compared to the similar commercial component, isn't that also true?
A  Yes.
Q  Now, as to your case number here, you said in this case -- am I correct in saying that as to the RESMERS investigations that you made and examinations that you made that you used a single file number to identify all of the components that you actually did identify or report with regard to RESMERS and that that number was 89-3229, and do you want to check your lab reports?
~A  No . That's the number which is assigned to this particular case.
Q  O.k. Now, I assume your procedure would be, if you get a whole lot of ammunition components and a number of weapons, that you would, first of all, examine the cartridges to see if there are identifiable marks which you know from your experience might relate to a weapon, and that you would in some way make notations and might make some preliminary thoughts as to what kind of weapon fired it; and then we simply go by trial and error in some way with some ammunition components in the weapons {3283} to see if you can bring about similar markings, is that generally what you would do?
A  Well, we compare the fired components that we receive, In this case I compared all of the fired cartridge cases that I received with the test cartridge cases that I shot in the laboratory itself.
Now, there is no way to make a gun produce a mark on a cartridge case that -- or change those marks. You fire the gun, the marking is either there or it isn't there, so it isn't anything alterable by the laboratory examination.
Q  Take an example, take the M-1, which is 29-A. I gather what you would do would be to take a clean, new M-1 cartridge, 30 aught six cartridge, perhaps preliminarily examine it to make sure there are no scratches or markings on it, you would put it or perhaps a clip of them in the weapon, take it to the range or test firing tank, fire the weapon a number of times, retrieve the ammunition components including the bullets and the cartridge casings, and then examine them to see what marks were made on the cartridge casing, either by the firing pin or the breech or in some weapons an extractor, and see whether you find markings on them that can compare to the ammunition components that you are trying to identify, would that be a general description of what you do?
A  Yes, sir.
Q  And as to the bullets that you find, the lands and grooves {3284} in the bore of the rifle or pistol, if it has lands and grooves, etch the lead or copper projectile as it goes through and puts some characteristic markings on that which then can be retrieved and compared with fragments, such as 34-H, which is on the chart behind you, to see whether you can match them up, and that's generally true, you do that?
A  Yes, sir.
Q  And would it be reasonable to say that you do that generally with all of these components and with the various weapons you are given, try different combinations -- in some cases you might have two or three different M-1's, you have to check and see which ones fired which cartridge case, isn't that true?
A  Yes.
Q  And when you get all done, you would make a report fairly contemporaneous with your test when it is concluded to whoever requested the information, telling them which weapons compare by your analysis, so that you can say that, first of all, some weapons fired certain cartridges to the exclusion of all other weapons, that's one category of findings?
A  Yes.
Q  A second category of finding might be that this cartridge case could not have been fired in this weapon, but I have no weapon that I can match it up with, that's a second finding, isn't it?
{3285}
A  Yes.
Q  A third finding might be that there are insufficient marks to determine whether this weapon is associated with this cartridge case, that's a third finding?
A  Yes, sir.
Q  And as to the findings, when there are no markings or very slight markings, in some instances you might even have a suspicion that it connects to a weapon but you have no way of determine that as a matter of your scientific examination unless you have sufficient markings to make your identification?
A  That's correct.
Q  All right. So that if a cartridge casing is found which has no markings on it at all of value that relate to a weapon, and if you have a weapon which makes a peculiar scratch when it ejects, let's say, you can say fairly certainly that this cartridge case was not fired in that weapon, but I don't know what other weapon it might have been fired in, isn't that true?
A  That could be true in a particular instance, yes, sir.
Q  And as to an ammunition component which has insufficient markings of any kind but has some markings on it, until such time as you are given a weapon which makes similar markings you are unable to say anything except that it apparently was fired in some weapon at some time?
A  Yes, sir. I may be able to give a list of weapons that it could have been fired from.
{3286}
Q  Fine. As to different weapons, I presume, that in some sort of an organized fashion in your laboratory, whether it is a book by manufacturers or a list that you make over the years, that if you see a particular type of scratch on a round you can by your experience and by your reference materials tell what kinds of weapons might have produced that scratch because you know the characteristics of a particular type of extractor, let's say, isn't that true?
A  Well, the incidence of being able to do that is highly limited. The mechanism of a gun is -- in some cases, yes, sir, but I would say it is very limited. We prepare these lists generally from the rifling characteristics on fired bullets rather than from an examination of the cartridge cases.
Q  If you have a bullet fragment that has, let's say, six lands and grooves -- and the lands being the raised portion and the grooves being, of course, the grooves, the cut out portions; and if they are within certain tolerances in terms of width, you can look to your reference sources and say what weapons might have fired that; you might give a list of two or ten depending upon what it is, isn't that true?
A  Yes, sir.
Q  And that would be true in some instances even if you do not have sufficient microscopic markings for comparison to a bullet that is fired from a known weapon because you can still count the lands and grooves or measure them, isn't that true?
{3287}
A  Yes, sir.
Q  And I presume that you made all of these types of tests we are talking about on the various components and weapons that were submitted to you in an effort to connect up any of these components that you could with any other weapons that you had, to the best of your ability in your laboratory?
A  Yes.
Q  I realize that as a professional you probably try to take great pains whenever you make an examination, whether it is a big case or a small case; but would it be fair to say that this has been one of the more important cases in terms of your efforts and the efforts of agents you have been associated with in trying to solve the case and in trying to connect up various firearms components, would that be fair?
A  From my aspect of this firearms identification specialist's point of view this has been the most voluminous case that I have handled. I know of other cases the Bureau has worked on where similar manpower expenditure has been conducted.
Q  And you, of course, were aware, first of all, generally, that the case involved the death of two FBI Agents, I trust?
A  Yes, sir.
Q  And recognizing that we all want to expend a 100 percent energy in everything we do, there are certain times you work a little harder than others, put a little extra emphasis on it; would it be fair to say in the range of cases you have worked {3288} on, you have worked as hard on this case as any you have ever worked on?
A  Yes, sir.
Q  We described, I think it was, July 5, was the one batch of ammunition you received. I don't think we got the date on the other. Was it around July 24, 1975, from Brugger, the Railway Express?
A  The Railway Express package I received on the 24th of July.
Q  That's what I thought.
Now, taking the ammunition components and going down, I have some questions on these various components that you described; and I think the best way for me to do this is to try to get the particular chart up. Are the charts over here?
Let's start out with Chart 29-1. I am just going to put this down. We don't have enough room here. All right.
MR. LOWE:  Now, your Honor, we are at a point where you might want to take a recess at some point, and this is a convenient breaking. I am going to get into something else.
THE COURT:  We are getting close.
MR. LOWE:  I would suggest, your Honor, this is a convenient time for a break for me. I will be getting into somewhat of a longer examination here. If you want to recess now --
{3289}
THE COURT:  (Interrupting) The Court will recess until 10:45.
(Recess taken.)
{3290}
(Whereupon, at 10:45 o'clock, a.m., the following further proceedings were had in the courtroom, the Defendant being present in person:)
THE COURT:  The jury may be brought in.
(Whereupon, at 10:48 o'clock, a.m., the jury returned to the courtroom; and the following further proceedings were had in the presence and hearing of the jury:)
(Witness resumes witness stand.)
Q  (By Mr. Lowe) I believe at the recess we were just beginning to get into Chart No. 29 which is on the board behind you, and I want to ask you some questions about it.
First of all, I want to ask you, in preparing a chart like this do you actually do the artwork, or are there specialists available to you on call at your FBI laboratories who prepare such charts for you?
A  Yes. We have specialists who prepare these charts for us.
Q  Are they within your section or are they general artists who go wherever they are needed at different times?
A  Well, they are within the same administrative breakdown that the laboratory is in, but they are available for use by anybody within the organization who needs them.
Q  And when you assemble information you want on a chart, I presume that you sit down with that person and discuss how you want to display or what information it is, and that he would consult with you perhaps with some expertise he has from a {3291} drafting point of view to decide what the best method would be to display it on a chart, is that true?
A  Yes, sir. In this particular instance, a chart like this had been used in other cases; and I merely told him I wanted something of the same format.
Q  I understand there may be other cases where you had a general outline of a rifle of some kind and general blocks for different components and pictures, but as to this specific instance, let's say 29-A, I presume you would say, "Here are the number of cartridges or the number of exhibits we are going to have here, here are some pictures I would like to display, here are some bullets I want to show," you sit down and work out with him some sort of a display which would be reduced to the art form by the artist?
A  Yes, sir, I think that's generally correct.
Q  And am I correct in assuming that you are the one who selects the items to go on the chart and you give that to the artist and he puts them on there?
A  No, sir. The prosecutor tells me the items that he wants displayed.
Q  Was there a particular prosecutor in this case who dealt with you on these charts?
A  Mr. Sikma.
Q  So do I understand then that Mr. Sikma said, "All right, I want a chart which shows the rifle and certain cartridges and {3292} certain pictures," after he has seen what you have available; and then you would take that general list of items and get with the artists and prepare the chart?
A  Mr. Sikma told me the items which he considered important that he wanted on the chart, to be associated with the 29-A rifle.
Q  All right. I don't think I actually asked you this in detail. You indicated that you knew that the incident here involved the killing of two FBI Agents. Did you ever get a briefing of any kind to give you a general idea of the Government's theory of what took place insofar as it might aid you in your detective work, if I can call it that, with tying up various weapons and weapons components?
A  After my laboratory reports had been issued, I met with Mr. Sikma and he talked to me about what he wanted displayed and his general idea of what had happened.
Q  What I am getting at, for example, did he sit down and explain when you were talking about a M-1, let's say --
MR. SIKMA:  (Interrupting) Your Honor, I object to this. It is totally irrelevant. It is within the purview of the prosecutor's work product.
MR. LOWE:  Your Honor, I think this has been invited by the introduction of 29-G and 29-F. We objected to it at the time and the Court made a ruling and said we could {3293} go into. I intend to go into in detail.
MR. SIKMA:  This has nothing to do with 29-G and 29-F.
MR. LOWE:  It most certainly does.
THE COURT:  I will permit him to proceed. I think that it is work product, and it is not entirely clear to me that it is relevant but I will permit you to go forward.
MR. LOWE:  All right.
Q  (By Mr. Lowe) In regard to, let's say, the M-1, did you sit down with Mr. Sikma and did you discuss various places that various cartridge casings or bullet fragments that might be linked up to a weapon were found in order to discuss how it might fit in with the Government's understanding of what took place on June 26th?
A  Yes, in the sense that I asked Mr. Sikma is the way that I had these items set out in the laboratory report, sight of recovery, if that is the information that he wanted displayed on the chart.
Q  O.k. Now, with regard to 29-G and 29-F, as I understand your testimony, you cannot give testimony that says that 29-G was fired from 29-A, so far am I correct?
A  You are correct.
Q  And that you cannot say that 29-F was fired from 29-A, am I correct that far?
A  That's correct, sir.
Q  And in fact, as to those exhibits isn't it true that there {3294} are a number of weapons that might possibly have fired those bullets, based on the various lands and grooves that you identified?
A  Yes, sir.
Q  Now you have identified one which you obviously believe could have fired 29-G or 29-F, and that is the 30 caliber M-1 which is Exhibit 29-A, so far correct?
A  So far.
Q  And I ask you whether it isn't true that a 30 caliber M-14 could have fired those bullets?
A  Yes.
Q  And a 30 caliber Winchester, Model 94?
A  Yes, sir, some of the older models could have fired --
Q  (Interrupting) And the 30 caliber Winchester, Model 70?
A  Yes, sir.
Q  And a 30-30 Harrington and Richardson rifle?
A  I recall that one, yes, sir.
Q  And a 30-40 Krag, U. S. Rifle, Model 1892?
A  I also recall that, yes.
Q  And a 30 caliber of some models of Browning rifles?
A  I believe that's correct. If I may, I did make a list of them so if I could follow that to go along with you --
{3295}
Q  Anytime you want to refer to notes -- let me just add that I think you also added 30 caliber Remington rifles; is that correct?
A  Yes, sir.
Q  And in fact these are not merely wild speculations necessarily since there were no weapons of some of these types found, and I would point, call your attention to your laboratory --
MR. SIKMA:  Your Honor, I would state that this is a misstatement of the record. There's only one of those kind of weapons found in relation to this offense as far as I know.
MR. LOWE:  That's fine. I didn't mean to communicate anything else, I believe that's correct.
Q  (By Mr. Lowe) The M-1, 29-A, is the only one of these kinds of weapons that you found, the weapon; isn't that true?
A  I did examine some Winchester Model 94's, but they were all of six right variety rather than the four right.
Q  But you of course having not been there either during the incident or after the incident can give no testimony about what weapons may have been fired and carried away by unknown persons, can you?
A  No, sir.
Q  All right. And I would call your attention, just as an example, to your laboratory report of August 5, 1976 at page 7. Would you turn to that.
Do you have it there? August 5, page 7.
{3296}
Q822 to 861, and I'll ask you what kind of ammunition is shown there?
A  30-40 Krag.
Q  So that in this instance for this weapon you actually found in the tent city, I believe is where you found it, ammunition components which could be fired in a 30-40 Krag rifle Model 1892?
A  Yes, sir. I received that from, listed as I think, from -- I'm sorry, that was listed as having come from a 1966 Chevrolet Suburban and --
Q  I'm sorry. Well, that was in the tent city area, all right. So from the red and white van, the 1966, '66 Chevrolet Suburban; but in any event I gather from what you have said that those cartridge casings fit a rifle which could have fired either 29-G or 29-F?
A  That's a possibility, yes, sir.
Q  Did you make up any charts outlining the Krag 30-40 rifle, Model 1892 and showing 29-G and 29-F on the chart so show that it possibly could have been fired from that weapon?
A  No, I did not.
Q  I gather Mr. Sikma didn't ask you to?
A  That's correct.
Q  And as to some of the other weapons there, there were a whole lot of ammunition components that you were never able to find a weapon for in this general Jumping Bull area, weren't {3297} there?
A  Yes, sir.
Q  And it would be fair to say that calibers and types ranged from one end of the spectrum to the other and really as to rifles?
A  There was a significant variety in the ammunition recovered, yes, sir.
Q  All right. So that actually when you put 29-G in 29-F on that chart it is put there to totally indicate in 29A in the hopes that it was associated with 29-A; isn't that true?
MR. SIKMA:  Your Honor, I'd object to this totally improper question. Counsel knows it's an objectionable question.
THE COURT:  The objection is sustained.
Q  (By Mr. Lowe) 29-G and 29-F are not connected to 29-A in any way by your tests, are they, as far as making an identification?
MR. SIKMA:  I would object to that, Your Honor. The witness has testified that there's a connection by way of possibility.
THE COURT:  Well, the witness may answer that question.
A  The only connection between the bullet fragments on the rifle 29-A is in the rifling class characteristics.
Q  (By Mr. Lowe) All right. So if you really wanted to be fair you should have had a chart with every one of those weapons that identified and then 29-G and 29-F on it?
{3298}
MR. SIKMA:  Your Honor, I object to this. Counsel knows again this is an improper question.
THE COURT:  Sustained.
MR. LOWE:  Your Honor --
Q  (By Mr. Lowe) You made no charts, did you?
THE COURT:  I sustained that objection to the form of the question.
MR. LOWE:  I understand that, Your Honor.
THE COURT:  Very well.
Q  (By Mr. Lowe) I'm asking, you made no charts similar to the chart 29-1 or any weapon on this list except the M-1, did you?
A  That's correct, I did not.
Q  In fact 29-G or 29-F could have been fired in a .308 Winchester rifle also, could they not?
A  .308 Winchester is a caliber, sir. Now, there are Winchester rifles that have that rifling model 54 and a model 70. Those models in caliber .308 could possibly have that rifling in it.
Q  You are saying that they could possibly?
A  I do not have any specific listing for the .308 caliber. I cannot exclude that since it is a Winchester caliber and there are Winchester rifles that have its rifling.
Q  Did you testify in another proceeding in this matter?
A  Yes, I did.
{3299}
Q  Did you testify under oath?
A  Yes, I did.
Q  Did you testify truthfully?
A  Yes, sir.
MR. LOWE:  If Mr. Hultman wants to refer to page 1528 of the transcript.
MR. HULTMAN:  It's not my witness, Your Honor. I'm not referring to anything.
MR. LOWE:  Well, as a courtesy, if you wanted to follow.
MR. HULTMAN:  Mr Sikma is the one.
MR. LOWE:  Well, if Mr. Sikma wants to look.
Q  (By Mr. Lowe) Discussing Exhibit 29-G and F, starting at line 11:
"Question:  In other words, if there were other firearms with similar rifling they could have all been fired from those firearms?"
"Answer:  Other firearms that would accommodate the type of bullet represented by 29-G and 29-F; in other words, a .30 carbine -- " I assume that's a 30 caliber carbine -- "wouldn't do it, but a .308 Winchester might, or another similar caliber to a .308 that had the same type of rifling."
Q  (By Mr. Lowe) Does that refresh your recollection as to testimony you gave on an earlier occasion?
A  Yes, sir. I said "might". My testimony has not changed in {3300} this particular instance.
Q  All right. Would you state what weapons fire a 30 aught 6 shell, first of all limiting yourself to the weapons that are already in evidence here involved. We know of the M-1. Are there any other weapons that fire the 30 aught 6 shell?
A  Not of the weapons that are on that board, no, sir.
Q  Are there any other commonly used weapons or weapon commonly known to you in gun shops in the United States that fire a 30 aught 6?
A  Many.
Q  All right. Now, you have up there Exhibits 29-B, 29-E, 29-A, but the ammunition components, the only ones that you've testified to have been 29-B and E. You actually identified other ammunition components to that weapon, did you not, from the crime scene area?
A  Yes, sir. If you include tent city in that.
Q  Only if you include tent city. Is that your testimony?
A  To the best of my recollection, at the moment I don't know of anything, well, yes, I'm sorry, we have an area blocked off there.
Q  You found some weapons, some cartridge cases that match up to that weapon at the Wanda Siers house which has been referred to as the tan and red house on Exhibit 71?
A  I didn't find them. I received them as having come from there, and I didn't identify them with Exhibit 29-A.
{3301}
Q  And they're not on that chart anywhere, are they?
A  No, they're masked off.
Q  May I assume then that those weapons linked up in the same way that 29-B and 29-E did in the sense that you had positive markings with which you could identify them?
A  Yes, 29, yes.
Q  I now put up chart 30-1 which is the .308 Winchester. And you have identified on that chart Exhibit 30-B, which is a cartridge case found by somebody reportedly at the rear of Coler's car, and you identified that positively with 30-A, did you not?
A  Yes, sir.
Q  And you had no weapon, no other weapons submitted to you which were identified to that weapon?
A  I don't understand the question, sir.
Q  You had no other cartridge casings submitted to you which were identified to that weapon?
A  No, sir, none.
Q  Now, going back for a moment, because I was going to ask you one other thing, I would call your attention to your laboratory report dated February 10, 1976. If you could turn to that, and on page 17 and ask you if there is a Q number 2556 identified somewhere on that page as being a 30 aught 6 shot, or cartridge?
A  Well, 2556 is mentioned. It is not identified as to caliber.
{3302}
Q  If there's another place that it's mentioned between the two places, normally in your reports you list all the items first and then you discuss the comparisons?
A  Yes, sir.
Q  Would you verify for me that your report dated February 10, 1976 shows that Q2556 was a 30 aught 6 cartridge which was found near the Siers house, the red and white, or the tan and red house that we've just discussed earlier, and that it was identified positively as having been fired from the weapon identified as K2?
A  That's correct.
Q  What is weapon K2 as referred to in that report, if you know?
A  It is a 30 aught 6 rifle which I received in another case. A case not related to the Resmurs case.
Q  So this was not a rifle found in the Jumping Bull area?
A  I don't recall where it was found, sir.
Q  It was related to another case?
A  It was Sent in on another case, yes, sir.
Q  All right. What I'm getting at, it was not sent in under this Resmurs case for identification, it was received independently?
A  That's correct, yes, sir.
Q  While you mentioned that, is it true that when you get different weapons from many parts of the country that fit the general category of cartridge casings, let's say that you were {3303} trying to identify this case, do you have some sort of cross-referencing so that when a 30 aught 6 comes in you can check to see if any 30 aught 6 cartridges which are unidentified might match up with it?
A  Not as a general rule, no, sir.
Q  In this case did you do that?
A  In this case I did that because it was I believe requested of me to do it.
Q  All right. So that you can state from your examination as shown in your report that this 30 aught 6 rifle which you received from some other case fired the cartridge Q2556 which was reported to you as having been found by the Wanda Siers residence?
A  Yes.
Q  I now show you Chart 31-1 and as I understand your testimony you identified two cartridges, 31-D -- excuse me, 31-D is six cartridges which were found at Al Runnings which is on the Rosebud Reservation, and that's 31-D.
You also identified one .38 Special cartridge, 31-E which was found near Coler's car in the area. And those are the only ammunition components; am I correct, that you identified to weapon 31-A?
A  Yes, sir.
Q  I would invite your attention to your report August 5, 1975 on page 4 and ask you whether under the general heading of Special {3304} Agent Williams' personal effects there were any ammunition components found, and if so would you state what was found.
A  Ammunition components listed in that area include six .357 magnum cartridges which were in a cartridge pouch. And thirteen .357 magnum cartridges.
Q  And those are respectively Q281 through 286 and Q276 through 299, are they not?
A  Yes, sir.
Q  And the item preceding that Q281 was the cartridge pouch itself?
A  Yes, sir.
Q  Do you know that of your own knowledge that that was a cartridge pouch taken from Special Agent Williams' body?
A  I do not know that, sir.
MR. LOWE:  Can we stipulate?
MR. SIKMA:  Would you give me the Q number?
MR. LOWE:  Yes. Q280 was the cartridge pouch, and Q281 through 299 were the nineteen .357 magnum cartridges which are shown in two lots.
MR. SIKMA:  If you'll give me just a second.
Q  (By Mr. Lowe) While Mr. Sikma is looking there, would you turn to your report dated December 4, 1975 for a moment.
MR. SIKMA:  Yes, we'll stipulate to that.
MR. LOWE:  All right. While he's looking through that, Your Honor, the Government has agreed to stipulate that {3305} the pouch and the nineteen .357 magnum cartridges which were taken from the body of Special Agent Williams and listed as part of his personal effects.
THE COURT:  The record may show the stipulation.
MR. SIKMA:  Your Honor, I would like if we could to add to the stipulation that those were live, unfired rounds.
MR. LOWE:  I intended to say that. If I didn't, when I say cartridges, that's what I mean if I said cartridge casings. That's fine to clarify that. I have no objection.
Q  (By Mr. Lowe) Do you have your report of December 4th?
A  Yes, sir, I do.
Q  Referring you to Exhibit 31-D which is Q2126 through 2131 I'll ask you whether your report indicates whether these cartridges were found in the same bag or container as certain other cartridges, cartridge casings, excuse me?
A  Yes, sir. They were contained in a bag with several other items.
Q  And among those other items, am I correct, are -- I'll get the Q number -- Q2124, 2125 and 2136 through 2139?
A  Yes, sir. They're all in that group.
Q  Do you know whether, let me show it to you, that's the best way.
I ask you, I show you Exhibit 35-1 and ask you whether those cartridge Q numbers relate to Government Exhibit 35-E?
A  Yes, they do.
{3306}
Q  So that the cartridge casings we're talking about right now, which are 31-D from Special Agent Williams .357 were contained in a bag which also contained six cartridge casings from Special Agent Coler's .357, correct?
A  Yes, sir. They were all located in --
Q  And they were all found at the Al Running property on Rosebud?
A  That's the information that I received, yes.
{3307}
Q  I now show you chart 32-1 and I believe you testified that these six cartridge casings were identified by you as having been fired from chart 32A, am I stating that correctly?
A  Yes, sir. Essentially.
Q  Now I call your attention to your laboratory report, August 5, 1975, again, and ask you to turn first to page 3 and look at Q 131-170 and I ask you if those Q numbers refer to certain 30-30 rounds, or cartridge casings I should say.
A  Yes, sir, they do.
Q  And now I ask you to turn to page 32 -- first of all, those cartridge casings, is identified there as to who found them. Is that shown?
A  Yes, it is.
Q  Who found them, according to your report?
A  Dean Hughes.
Q  Special Agent Hughes?
A  Yes.
Q  Turn now to page 23, please. As to Q 131 through 134, 148-151, 152 through 162, 169 and 170, were you able to make an identification of all of those cartridge casings being fired from the same weapon?
A  No, sir. I don't think I was. What I have there is extractor markings.
Q  Let me rephrase the question.
Were you able to determine by comparison that all of {3308} those cartridge casings were extracted at some time by the same weapon?
A  Yes, sir.
Q  And did you also determine that those cartridge casings were not extracted from weapon 32A?
A  Yes, sir. The connection, the extractor in 32A did not produce those markings.
Q  And back on page 3 I asked, you said it was found by Special Agent Hughes. Does it indicate where he reported he found those rounds, cartridge casings?
A  Just at the scene.
Q  The crime scene, doesn't it say that?
A  Well, what I have listed is "recovered" at the scene.
Q  Just "scene"?
A  Yes.
Q  But your examination showed that Exhibit 32A did not fire those cartridge casings, although you did not have given to you a weapon which did extract them, isn't that correct?
A  Well, I don't really know as to that. The 131 through 170, I do know that they had extractor markings from this paragraph that were not produced by K15, Exhibit 32A. Now the paragraph doesn't tell me any further than that and I'd have to go back and find some other area in the report. I don't recall those particular cartridge casings.
Q  As to Exhibits 32B and 32C, you did find markings sufficient {3309} to positively identify them with Exhibit 32A, however, as you show on your chart, isn't that correct?
A  32B and 32G; yes.
Q  Is it G or C?
A  C.
Q  I think it was marked G and changed to a C.
MR. SIKMA:  Yes, Your Honor. We changed the numbers from another proceeding and as a result of that it has been changed to a C. I think I may have referred to it also yesterday as 32G inadvertently.
THE COURT:  The clerk caught that discrepancy yesterday.
Q  (By Mr. Lowe) Let me rephrase my question to be more inclusive. I am correct, am I not, that you did find markings on Exhibit 32B and 32C which are depicted on chart 32-1 which enable you positively to state that they were fired from Exhibit 32A to the exclusion of all other weapons?
A  Yes, sir.
Q  Now I call your attention to the laboratory report, January 13, 1976, and ask you to look at page 8 of that report.
All right. And referring to K12, a Savage 30-30 rifle, is that shown on there?
A  Not on page 8.
Q  On page 8 it does not?
A  Page 9.
{3310}
Q  Or does it make a reference to it?
A  Page 9, sir.
Q  Maybe I have the wrong page.
In any event, in that report is there identified a weapon K12 which is a Savage 30-30 rifle?
A  Yes, sir.
Q  And does it show where it was found?
A  Yes, it does.
Q  State where it was found according to that report.
A  1967 Chevrolet.
Q  It doesn't say where the vehicle was?
A  It just says, "Obtained from a 1967 Chevrolet, South Dakota license 2-17817."
MR. LOWE:  Can we stipulate, I believe that's the red and white van, is it not?
MR. SIKMA:  Yes, it is.
MR. LOWE:  The different places it's referred to as a 1966 Chevrolet Suburban and sometimes by a license number. But that is the red and white van?
MR. SIKMA:  It's a '66, I thought I said.
Q  (By Mr. Lowe) Does it say '66 or '67?
A  I have it listed as '67.
MR. LOWE:  There is no 1967 Chevrolet, is there?
MR. SIKMA:  That's correct. That's correct.
MR. LOWE:  Okay.
{3311}
Q  (By Mr. Lowe) Let me ask you if on this board there is displayed that weapon, K12?
A  No, sir.
Q  There is a board behind it.
MR. LOWE:  Can we stipulate it's not displayed on that board either? I believe that's the Canadian weapon.
MR. SIKMA; That's correct.
MR. LOWE:  And I think rather than state what is in evidence and not, can we state that K12 is not presently in evidence?
MR. SIKMA:  That's correct.
Q  (By Mr. Lowe) I now show you Government Exhibit 33-1. As I understand you testimony, this weapon was the Rugger .44 carbine found at Al Runnings and that you linked up the various cartridge casings shown on this chart positively to this weapon by various microscopic markings or scratches, is that correct?
A  That's correct.
Q  Now in addition to that you identified the copper jacket Q 1 which is Exhibit 33C and you made a positive identification of that?
A  Yes, sir.
Q  And also on 33F there were two bullet fragments which you made a positive identification on?
A  Yeah. I identified 33F, yes. It had been fired from 33A.
{3312}
Q  And as to 33J and 33K, down on the bottom of the chart, once again we have two bullet fragments that you cannot state were fired from 33A, can you?
A  That's correct.
Q  I assume, though you haven't said this, that you did not determine what exhibit numbers would be assigned to various items you examined or only assigned Q numbers or K numbers, is that correct?
A  Those are the only numbers I assigned; yes.
Q  And again did Mr. Sikma tell you to put 33K and 33J on this chart?
A  Yes, he did.
Q  And as to those fragments, I believe you said that they had 12 grooves, am I correct in remembering that?
A  Yes, sir.
Q  And as to those two exhibits, I trust that the only thing you can really say is that a 12 groove weapon of .44 caliber fired those fragments?
A  Yes, sir.
Q  Have you ever examined any statistics on all these various types of weapons to give any kind of an idea to the jury how many .44 Rugger carbines were produced by that manufacturer, for example, in order of magnitude?
A  No, sir. I have no idea. But the number is very large.
Q  And the same would be true of virtually all these other {3313} weapons, they're commercially produced in large numbers, whatever that number might be?
A  Yes, sir.
*Q  I now show you chart 31-1 -- excuse me, 34-1. Now this is the chart of the AR15 which is on the table right now which is Exhibit 34AA. This is a look alike for an AR15 component which is identified as Exhibit 34A, is that correct?
A  Yes, sir.
Q  First of all on 34C, on the chart, and on 34H on the chart, we have a similar situation that we did with 29 and 33, don't we, and that is you cannot link, you cannot say that those bullets were fired from 34A, can you?
A  No, sir, I cannot.
Q  And in fact there are a number of different weapons that might have fired that. First of all an M16, a 5.56 millimeter could have fired that, couldn't it?
A  Yes, sir.
Q  And, of course, then we have the .223 caliber AR15 could have fired those two bullets?
A  Yes, sir.
Q  And again the AR15 I presume you understand was manufactured in large numbers?
A  Yes. I believe it has been.
Q  And a .222 caliber Remington rifle could fire those two bullets, couldn't it?
{3314}
A  Yes, sir.
Q  And a .222 caliber Savage rifle could have fired them?
A  It's fairly common rifling. I believe it could have, yes, sir.
Q  And a 22-250 caliber Remington rifle could have?
A  Yes, sir.
Q  And a .225 caliber Winchester rifle could have?
A  Yes, sir.
Q  And there are a whole variety of center fire .22 caliber rifles that could have fired them also, isn't that true?
A  Yes.
Q  Did you prepare any chart of any of these weapons other than an AR15 to display Exhibit 34G and 34H for comparison or for display?
A  No, sir.
Q  Now as to these weapons, the only one that was actually identified in weapons that we have in evidence are, first of all, .223 we have, Exhibit 34A, and there is, I believe there are two .22 caliber weapons, is that correct, that you examined in this that are in exhibits now?
A  That are in exhibits. There is only one.
Q  I think Exhibit 41 is only one actually in.
A  I think that's true.
Q  As to other ones there, there were ammunition components covered and reported to you which you identified from various {3315} places in the Jumping Bull area which would have been able to have been fired in virtually any of these weapons, isn't that true?
A  There was some .222s that I recall and there was some 22-250s; yes, sir.
Q  Do you remember any .225s?
A  I don't remember any 225s.
Q  I don't recall seeing any.
There was a lot of .22 ammunition, wasn't there?
A  I believe there was.
Q  And obviously a lot of .223. So that it's not just idle speculation or guessing to say that it's possible that one of these weapons fire those bullets in the sense there are ammunition components that could have been used in a weapon and that weapon could have fired those bullets so there is more nexus than speculating that some hypothetical weapon could have fired those bullets, isn't there?
A  I don't know that I understand your question.
Q  What I'm getting at, if we just said you could have had a Winchester weapon fire those bullets, we don't have anything to suggest there was ever a Winchester .225 rifle in the Jumping Bull area that you're aware?
A  No, sir. There was no ammunition that I remember recovered of that caliber.
Q  That's not true of a 22-250 Remington rifle insofar as {3316} there was ammunition components and ammunition component, or more than one found in the Jumping Bull area which would be used in a Remington rifle?
A  Yes, sir.
Q  Now as to the 34G, am I correct that 34G and 34H could have been fired from the same weapon?
A  They could have been; yes.
Q  But you did not determine that they had been. It could have been they were also fired from separate weapons, isn't that true?
A  That could be; yes.
Q  And I believe the identification generally that you gave was that the bullets appeared to come from a .22 center fire rifle with six grooves with a right hand twist, am I correct?
A  Yes, sir.
Q  Now you indicated that, I believe, one or both of these was copper jacketed, am I correct about that?
A  Yes.
Q  And I think you alluded to the fact that .22 ammunition, you either said is not normally or normally is not copper jacketed and let me ask you this:  is any .22 caliber long rifle ammunition copper jacketed sold commercially?
A  Not sold commercially. There are some military but it's {3317} open based type of copper nose on it. I believe that may even be a collector's item now.
Q  I believe your report shows, I think there has been testimony that Exhibit 34H was recovered from the ground, that is, dug out of the surface of the ground, the earth, and I think that shows there, "from ground beneath bodies of Williams and Coler," and I will ask you whether you and under your supervision someone else tested those bullet fragments for the presence of blood.
A  I do not recall if we did or not.
Q  Do you recall whether you testified in an earlier proceeding in that regard?
A  No. I do not.
Q  All right. I'll try and find a reference for you later. I'm not going to take the time now.
I think you indicated that on the basis of your tests with the bolt and extractor from 34A which you inserted into another AR15, you determined that by hand extracting the cartridges you put extractor marks on which matched up with 34C, 34D and so forth, am I correct in how you did that?
A  No. I never conducted that test. I did not attempt to see whether or not I could reproduce those extractor marks by hand. It is theoretically possible for them to be regrooved by hand.
Q  Perhaps I misunderstood how you associated, let's say, {3318} the cartridges in 34C with Exhibit 34A. Just pick that for an example. I thought you --
A  Maybe I misunderstood your question. I thought you asked me if I had performed tests by trying to produce extractor marks by hand. I did not.
Q  You did it by firing?
A  By firing.
{3319}
Q  All right. Then maybe I misunderstood you. That's what I was trying to clear up.
The extracting marks you produced were produced by firing. Your testimony, I gather, is that if a .223 cartridge had been fired in Exhibit 34-A, it would have produced this kind of extractor mark or this identical extractor mark?
A  Yes, sir, that's my finding.
Q  That's what I wanted to be sure of. Now, as to Government Exhibit 34-B which is Q2628, will you check your laboratory report dated August 5, 1975, and tell me whether that cartridge casing is listed in there?
A  (Examining) That 34-B would not be listed in the August 5 report, no, sir.
Q  That was actually received by you on August 24, 1975, I believe you either testified, or it was the other batch?
A  Yes.
Q  And I ask you to look at your report, January 13, 1976, and first of all, turn to Page 3 of that report; and I call your attention to Q100 through 105 and Q130; and I ask you if those are not .223 caliber casings which were found by Special Agent Hughes?
A  Yes, sir.
Q  Does it indicate where he reported finding them?
A  Again in that group, I have it listed only "at scene", recovered at scene.
{3320}
Q  All right, and did you examine those seven .223 cartridge casings as a part of your examination?
A  Yes, I did.
Q  Were you able to associate it in any way or disassociate it in any way with Exhibit 34-A?
A  I was able to disassociate it with Exhibit 34-A.
Q  In other words, your test or your examination disclosed to you that those seven .223 cartridge casings could not have been fired from Exhibit 34-A, I gather?
A  That's correct.
Q  Did you ever -- when you received those cartridge casings -- let's use them as an example to bring something else out here -- when you got those, I gather you got them with a lot of other cartridge casings and perhaps some other items?
A  Yes, sir.
Q  Is there any rhyme or reason as to how you assigned Q numbers, as you pick them out of the box you just start sequentially numbering and listed them, or you do it in the order they are listed, for example, in the covering document?
A  We try to keep it as logical as possible. Group together items recovered together in a particular area, as much information as is given us.
In this particular case there was many submissions recovered from different areas by different people, in that one red trunk that I received from Cunningham, so that I just {3321} went through them as best I could trying to keep everything together as best I could, and listed them as the information was received with the items.
Q  And I gather that typically you would get those cartridge casings in a plastic bag of some sort with some piece of paper giving information as to where they were found, by whom, and with perhaps some initials of various people on them?
A  Yes.
Q  Do you know that was uniformally the practice that was followed with regard to Cartridge casings that you examined in this case that you received?
A  Sometimes there would be a slip of paper, sometimes there would be a copy of a green sheet setting out the items in this submission -- varied in the way they did it.
Q  In any event, where it was a piece of paper in the envelope with nine items, or whether it was a green sheet, I gather that as far as you are aware the document which identified the cartridge casing was prepared by the finder, is that your understanding?
A  That's my understanding.
Q  And in either event, the Special Agent who purported to be the finder would either sign or initial the green sheet, or would initial the piece of paper that was in the pouch with the cartridges?
A  Yes, sir, I think that's true in every instance here.
{3322}
Q  And would that have been the basis upon your listing then in your report as having been found by Special Agent Hughes at the scene?
A  Yes, sir, it did have his name on it.
Q  All right, and as far as you would be aware you have to rely on what Special Agent Hughes puts on that piece of paper when you write that report, you have no independent knowledge of where it was found?
A  I rely on the piece of paper as far as the location of where they were recoved and who recovered it, yes, sir.
Q  All right. You say "and who recovered it"?
A  Yes.
Q  Yes. Do your notes indicate when you received either those notes or the report, or any of your worksheets or anything that you have with you indicate whether you received those cartridge casings with a green sheet as opposed to a piece of paper in the envelope, is there any way you have of determining that now as you sit there?
A  No, sir, not to the best of my recollection.
Q  All right. Now, I call your attention to your report of -- excuse me.
MR. LOWE:  Before I move off on that, could I have a moment, your Honor?
(Counsel confer.)
Q  (By Mr. Lowe) I show you what has been marked but not {3323} admitted into evidence yet as Plaintiff's Exhibit 177, and ask you if you are familiar with that document, and if you will just state what it is?
A  Yes, sir. This is a copy of one of the Bureau green sheets, and this is the -- these are the Q numbers which I wrote on the outside as I received the evidence and inventoried it.
Q  And who prepared that green sheet?
A  It bears the name, Dean Howard Hughes.
Q  Are those Q numbers, can you identify your own handwriting, did you put them on?
A  Either myself or my assistant put those on.
Q  Can you state the item numbers for Q100 through 105 and Q130?
A  Yes, sir. 100 through 105 is Item 13 and Q130 is Item 17.
Q  Now, on Item 13, you have Q100 through 105; and am I reading correctly that Item 13 says:  5.56 millimeter Lake City cartridge case?
A  That's what it says, yes, sir.
MR. LOWE:  Thank you. Excuse me a moment.
(Counsel confer.)
Q  (By Mr. Lowe) Now, I call your attention to your February 10, 1976, laboratory report, and ask you to look at, first of all, Page 7 and look at Q2513 through 2519; and I ask you if that does not relate to seven .223 caliber cartridge {3324} casings?
A  Yes, it does.
Q  And I ask you now to turn to Page 15 of that same report and ask you if you were not able to examine those and determine that they were not ejected from Government Exhibit 34-A?
A  (Examining).
Q  Is that correct -- I believe it is on Page 15 that you determined that those cartridge casings, 2513 through 2519, were not ejected from 34-A?
A  That's correct.
Q  And that was not to say that there were insufficient markings -- I think some of your other identification say insufficient markings, but you actually could specifically eliminate those from 34-A, couldn't you?
A  Yes, I could.
Q  And those all have the same markings within themselves, so that they were all fired by the same or ejected by the same weapon, weren't they?
A  That I don't know. I don't list that. I did not state that they didn't have any marks of value on them so --
Q  All right, fine; but in any event, the markings they had on them showed you they were not ejected from 34-A?
A  Yes, sir.
Q  You said that only the AR-15 and the M-16 fired .223 caliber ammunition; and I ask you whether you have ever heard {3325} of a weapon that might be called the Maxi-14?
A  I don't recall ever saying, sir, that only the AR-15 and M-16 fired .223 ammunition.
Q  Maybe I misunderstood you.
Let me ask you what weapons other than the M-16 and AR-15 fire .223 caliber?
A  Remington makes a bolt action rifle which fires that caliber ammunition. Ruger makes the Mini-14 which fires that ammunition and there may be others.
Q  Mini-14 is it called?
A  Mini -- (spelling) M-i-n-i.
Q  I must have it backwards, Mini and Maxi.
And is there -- well, that answers my question.
If you reload a .22 caliber long rifle cartridge case, let's say, is it possible to reload a .22 long rifle cartridge case with a bullet that is designed to be reloaded in a .223 cartridge case?
A  I have never heard of anybody reloading a .22 long rifle cartridge case because of the priming problem. Priming is put in in a moist condition and the cartridge case is spun to get the priming into the rim, and this is not a technique available or readily adapted to individual reproduction.
Q  Fine. Now, I want to talk a little bit with you about your ejection test that you described. Do you have that Exhibit 34-I, have 34-I, the ejection pattern up there?
{3326}
A  Yes, sir, I do.
Q  May I just see it?
Now, as I understand Exhibit 34-I, you made the test in two different ways:  First you took the AR-15 and you fired at your shoulder, something similar to this (indicating), with the weapon roughly parallel to the ground and with the axis of the weapon roughly vertical, that is, it wasn't turned like this (indicating) or something like that, for most of your ejection pattern test, am I correct on that?
A  Yes.
Q  The other way you did it was at the hip firing where it was fired again parallel to the ground and approximately in the verticle plane and made tests on that basis?
A  Yes, sir.
Q  And you did this with two AR-15's?
A  With --
Q  (Interrupting) And with three M-16's?
A  Yes, sir.
Q  And you used commercial and military ammunition?
A  Yes.
Q  And as I understand, you made no tests in which you fired the weapon down, anywhere from 10 degrees to 45 degrees from the horizontal, am I correct about that?
A  That's correct.
Q  And similarly you didn't fire up, you were all at parallel -- {3327} or at horizontal, I should say?
A  Yes.
Q  All right. Now, in doing that, first of all, did you actually do the firing -- I think you said an assistant did the firing?
A  I had an assistant do the firing, and I watched the cartridge cases.
Q  Now, as the cartridges go out of this weapon, you have got a little door here that springs open, and I believe stays open until you close it manually, is that correct?
A  That's correct.
Q  That's this little door right here (indicating), that flaps open, and the bolt, I think, opens it the first time when you fire?
A  Yes. To load the cartridge into the chamber, you have to pull back on that lever which is held back by the plastic tape, and that will open the ejection port.
Q  And as the weapon fires, it ejects them; and I believe you said that they come out approximately horizontally and then drop off by gravity pull?
A  Yes, sir, very little rise to them.
Q  And as you get a given force, let's say a force of a certain "X" pounds per square foot or whatever it might be, that cartridge will go out and land at a certain distance away in some direction or another, depending on how high the weapon {3328} is; if I hold the weapon up here (indicating), obviously it has greater distance for the trajectory to go, it would land farther away?
A  Yes.
Q  If I held it right down to the ground, you would expect the impact much further in?
A  Yes.
Q  So the height of the person firing the weapon from the shoulder would determine to a certain extent how far those cartridges went?
A  Yes.
Q  Not only the person, but the height at which he held it when he shot it would make a difference how far the cartridges went, would that be correct?
A  A slight difference, yes.
Q  All right. In addition, in making a test, are you willing to stipulate that I am not an artist?
A  Yes, sir.
Q  I am willing to stipulate that, and I think that's there for everybody to see. We don't need an expert for that.
If you fire on the horizontal and the cartridges come a certain distance, if you fired down some of those cartridges might loop up slightly because of the fact, if they are coming out to the back, that they are actually being aimed up a little bit when your rifle is pointing down, isn't that true; those {3329} cartridges that might be thrown rearward?
A  Yes. Cartridges thrown to the back would be.
Q  A little farther?
A  More up in the air, yes, sir.
Q  And similarly, if you rotate the gun on its axis, that is to say, instead of being exactly vertical, if somebody were firing at a slight angle like that (indicating), they would loft a little bit and they might go a little farther then also?
A  They would go a little bit further also, I would assume, as long as you didn't get it past the optimum angle at which they would go short.
Q  So when you really analyze what we are talking about here in terms of a car trunk -- and I presume that's what your testimony is aimed toward -- if we use this as the depiction of an automobile with the two headlights at the front -- this being further evidence that I am not an artist -- that you determined or tried to determine a pattern in which these cartridges might fall, to try and determine where a person standing and firing that weapon might be when a cartridge landed in the trunk, isn't that essentially what you were aiming at with your evidence?
A  I think that would be a very general statement. I was actually trying to determine how far this particular type of weapon in general would eject a cartridge case.
Q  And in fact on Exhibit 31 -- this being a copy of it, I {3330} represent this is a slide copy of that, correctly -- this being on the shoulder form, you came up with a pattern of various rounds which ranged from forward to backwards, to the side and in close and out far, but which had one common characteristic, didn't they, and that was that you were able to project approximately a 120 degree angle in which all of your rounds on those five weapons fired?
A  Yes, sir.
Q  And you have no way of knowing whether another AR-15 might fire rounds down in or expend cartridges down in this area (indicating), or up in this area (indicating), until you actually test the AR-15, isn't that correct?
A  I would assume that there would be other AR-15's which would leave that pattern to a certain extent, with the small variations, yes, sir.
Q  All right, and you had a similar pattern -- not similar pattern, but you ran a similar test and made a pattern of the hip position and came up with a similar kind of a pattern which again was about 120 degrees, interior angle in here (indicating), didn't you?
A  Yes, sir.
{3331}
Q  But as to the actual location of these rounds landing, one weapon -- I'll give you your exhibit so you can refer to it in case you don't recognize right on it, one weapon fired all of its rounds and expended the cartridges out on the right and to the front which I have marked in blue, didn't it?
A  The number 1 weapon, all right. Now, we're talking about the hip position?
Q  Yes.
A  Yes. Well, the area, no, because some of those weapons, some of those cases were ejected backward, too. That is a blue area there.
Q  So in other words that one weapon ejected in two places, forward and to the right, and rear to the left and slightly to the rear and to the left?
A  Yes. Threw some ahead and some behind.
Q  And other weapon ejected in what I have marked as red; is that, am I correct that that's one weapon?
A  Yes, sir. That's the number 2 weapon.
Q  And as to any given AR-15, including AR-15 designated Exhibit 34-A, I would be fair in stating that you have no idea where it might land in relation to any of these shots or in other places except that it would be generally to the right of that weapon since the portal is on the right side; isn't that really true?
A  I would expect it to throw the cartridges cases to the right.
{3332}
I would not expect it to exceed in distance greatly any of the distances, maximum distances that I fired in, or observed from firing the five other weapons.
Q  And these patterns that you've shown here are based on all of the givens that we've discussed; and if you were aiming it down or turning it sideways or if ammunition were hand loaded or any number of variables you might even get with these weapons, you might get a --
A  You might add or take off a foot or two on the maximum distance, yes, sir.
Q  And in fact on this weapon, which I think you said in number 1 which I've marked in blue, how many shots did you fire?
A  On the number 1 weapon I fired twenty shots.
Q  If you had fired eighty more and made a hundred, you have no way of knowing whether they might have landed in this area in here or up here or up here or out here, or where they might have landed, do you?
A  I'm sure that the pattern would be expanded to some extent just by the random nature of the pattern that we have here.
Q  So would it be fair to summarize your testimony by what you just said that the AR-15's that you tested ejected rounds in a random manner without any substantial pattern that you would identify with certainty?
A  Well, I couldn't identify -- this is not what I would consider an identifiable property as to where the gun ejects a particular {3333} cartridge case.
Again in general my findings were that they, different guns would eject it and sometimes fore and some aft. It was quite a variation. I would expect another AR-15 to have a similar property in that it would eject it somewhere within a twenty foot area and within the 120 degree angle. But it may vary a few degrees one way or another, or a few feet one way or another.
Q  Now, looking at your chart, let's take first of all your hip chart. I portrayed a car here and I've outlined in purple an approximate area of the trunk of the car. And I've got here another exhibition of my lack of artistic ability which depicts a rifle and I've tried to show which end is the butt and which end is the muzzle. So that's the muzzle end (indicating), and this is the stock end back here, and I've drawn, by superimposing this sketch on your sketch, I've drawn the red lines to coincide with the 120 degree sector that you have found in your experiments so that that would represent the sector to the right of the gun from in which you experienced some cartridge cases falling when they were ejected. And I will ask you, based on your results, and I will let you look there for specific rounds, were there rounds fired which would enable a person to be standing to the rear and somewhat to the right of this automobile and still have a round eject from this AR-15 into the trunk of the car?
{3334}
A  Yes, sir.
Q  And would there be some rounds shown which would enable somebody to be standing to the rear and to the left of the car and to fire that weapon and have it eject the cartridge to the rear and drop in the trunk?
A  Yes.
Q  And that would be with the weapon there shooting away from the car, wouldn't it, in that instance?
A  In that instance, yes.
Q  And in fact you could put this in an almost infinite variety of positions:  To the rear of the car, to the right of car, to the left of the car firing away from the car and in other places where it's conceivable that a round ejected would have fallen into the trunk of Coler's automobile?
A  Yes, sir.
Q  And the only thing you can say is that based on the twenty shots you fired from each of five weapons in each position that your experiments showed that those particular combinations were possible, and that you don't know what other combinations might have been possible?
A  Well, I can think, I can testify confidently that it does not throw the cartridge case to the left of the gun.
Q  I'll stipulate to that.
A  And that my experiment again is generally, only in that we have these limits set up under my observation, and that again {3335} there could be minor variations on these, yes, sir.
Q  Now, without going into all of the details or looking at all of the pages in your reports, am I correct in saying that in various parts of Jumping Bull area you had other cartridge casings of .223 caliber or 5.56 millimeter submitted to you which you were able to link up as positively having been extracted from Exhibit 34-A?
A  Yes.
Q  In other words, you didn't even attempt to depict all of the other cartridge casings which were found to have been extracted from there, but rather only those that Mr. Sikma asked you depict?
A  That's correct.
Q  And many of these, a lot of them were found in the Tent City area, weren't they, according to the reports you received?
A  Yes, sir.
Q  And weren't there also a lot of .223 and 5.56 millimeter cartridge casings for which there were insufficient marks for you to make an identification to weapon 34-A or any other weapon?
A  There were not a lot. There were some.
Q  All right. And as to the materials that were submitted to you, based on the seizures at Al Running's, and I believe you've already identified on a number of these charts cartridge casings and components which came from Al Running's. Referring {3336} specifically to your report of 12, that is, December 4, 1975, there were a number of .223 cartridge casings found at Al Running's, weren't there?
A  I'll have to check that report, sir.
Q  All right. You can just look.
A  I don't remember.
Q  Just generally, I think you'll find that if you look at that report, I can give you some Q numbers, but you can probably spot it very quickly that there were .223 cartridge casings found.
A  Are we talking about unfired or fired here?
Q  I'm talking about first of all there were a lot of unfired cartridges there, weren't there, .223?
A  As I recall the significant part of that submission was unfired.
Q  Okay. Now --
A  Q707 through Q17 -- I 'm sorry, 979, those are .223. But they are all unfired.
Q  Right, okay. I think I already said this, but if I didn't, 34-G and 34-H are similar to the other charts in that you cannot identify them to 34-A, did you say that?
A  Yes, sir.
Q  All right. I now show you chart 35-1. I believe your testimony was that this weapon which is identifiable as Special Agent Coler's was positively identified to two .38 Special {3337} cartridge cases, 35-B and 35-G found on the front seat of Coler's car and identified on the chart; is that correct?
A  Yes, sir.
Q  And there were also six cartridge casings found at Al Running's, and you previously identified those as having been found in the same bag as six cartridge casings from Exhibit 31-A if I have the numbers right. That is from Williams' .357?
A  Yes.
Q  Does your report indicate the name of the finder of any of these items, or do you simply have who sent them to you in your report now?
A  I don't believe it does indicate the name of the finder, sir, no.
Q  Okay. And these are the only .38 Special cartridge casings which you were able to identify to Exhibit 35 -- excuse me, I may have missed 35-F, which were six that were found in a Plymouth station wagon in Oregon. That's on the bottom of your chart.
A  Yes.
Q  Now, would these thirteen -- excuse me, fourteen cartridge casings the only ones that you were able to identify with Exhibit 35-A?
A  Yes, sir.
Q  You identified Exhibit 36-1 and gave some testimony about the Remington 870 shotgun. It's a 12 gauge shotgun which was {3338} property of Special Agent Coler and you identified on cartridge casing that was expended. Were you able to determine from the various ammunition components you examined what kind of shotgun shell load were contained in the shotgun shells that are associated with that weapon on June 26th?
A  I don't recall. If I can answer that question by referring to my notes.
Q  Well, this is Q342 in your August 5th report. I don't know if you have some notes other than that.
A  Yes. I have that information with me.
Q  Could you check your notes.
A  Yes. Q342 is double aught buck load shell shot.
Q  Did you receive any other ammunition components, that is, unexpended live rounds relating to the Jumping Bull area as a part of your investigation in this case?
A  Shot shell?
Q  Yes. Shotgun shells.
A  I believe I did, yes.
Q  Do you know what they were? Were they also double aught buckshot?
A  There was a Q348 which was a double aught buck load which had been fired into those. It was ruptured. That was another.
Q  Well, let me ask you this:  Is that a fairly standard type of shotgun load for an FBI agent to use in a shotgun?
A  Yes, sir.
{3339}
Q  That's all I need on that.
I show you Exhibit 41-1 and I believe you testified that this was a .22 caliber rifle which was associated with 41-B which was found near the white house, and I ask you whether there was not another cartridge casing which you also associated with that weapon, namely Q2537 from your February 10, 1976 laboratory report?
A  Yes, sir.
Q  And does your report show where that was reportedly found?
A  From near this log house.
Q  Let's talk about .22 for the moment. You made a statement yesterday that the diameter of a .22 bullet -- do you remember being asked about that, and I believe you said that the diameter of a bullet, of a .22 bullet is from .221 to .224 thousandths of an inch. Isn't that what you said?
A  Yes, sir. That's the general range for a .22 caliber bullet, sir.
Q  I'm not trying to pick up or nit-pick with you, but I don't want to confuse anybody. What you really mean is that it is from .221 inches to .224 inches, or from 222 thousandths to 224 thousandths of an inch; isn't that correct?
A  Correct, yes, sir.
Q  All right. I now show you Exhibit 69-1 and I believe you testified that this was a .303 British rifle and that you had made a positive identification with Exhibit 69-B, C, D and {3340} E and excluded those as being fired from that weapon and none other; am I correct about that?
A  Yes, sir.
Q  Call your attention to your laboratory report, February 10, 1976. If you'll look at page 9 first of all, and I ask you to look at Q2558 and tell us whether that is a .303 cartridge casing?
A  Yes, it is.
Q  And does your report indicate where it was found?
A  It indicates that 2558 was, well, it's on another page, I'm not sure if it's a continuation of the heading. It indicates that it was found from residence believed to be that of Joanne LeDou.
MR. LOWE:  Can we stipulate as to which residence that's referred to?
MR. SIKMA:  Yes.
MR. LOWE:  The tan and red house.
MR. SIKMA:  The tan and red house.
Q  (By Mr. Lowe) All right. And I call your attention to page 18 of that report. If you'll look at that and see whether it does not reflect that you were able to make a comparison between Q2558 and a weapon?
A  Yes, sir.
Q  And which weapon did you positively link it to?
A  69-A.
{3341}
Q  And it doesn't show on the chart, though, does it?
A  No, sir, it does not.
Q  And I assume Mr. Sikma did not ask you to put it on that chart?
A  No, he did not.
Q  Now I call your attention to your January 13, 1976 report, if you'll look at that at page 9. I ask you if there is a weapon listed there K6 which is a .303 rifle, SMLE British?
A  Yes, sir.
Q  Now that is not 69A, is it?
A  No, sir, it is not.
Q  It's a different weapon. Where does it reflect that weapon was found?
A  Tent city.
Q  And that would fire a .303 ammunition similar to the ammunition fired in 69A, would it not?
A  Yes, sir.
MR. LOWE:  Excuse me, Your Honor.
Q  (By Mr. Lowe) I show you Defendant's Exhibit 135 which has been previously discussed and identified. I don't believe it's in evidence yet, am I correct, Mr. Clerk?
THE CLERK:  135 is not in evidence.
Q  (By Mr. Lowe) And ask you if that is a document which you {3342} can identify?
A  Yes, sir.
Q  What is the document?
A  It is laboratory reports which I issued.
Q  What date?
A  On the 31st of October, 1975.
Q  And does that refer to K40 which is known as Exhibit 34A in this proceeding?
A  Yes, it does.
Q  I show you what has been marked for identification as Defendant's Exhibit 182 and ask if this is a document which you're familiar with and can identify?
A  Yes, sir.
Q  Would you just state generally what it purports to be, what it is?
A  This is a laboratory report on the results of hair and fiber examination conducted by Special Agent Byron D. Schulberg.
Q  Is that a report which is issued from your laboratory?
A  Yes, sir.
Q  Is that a report which is kept in the ordinary course of business as part of the laboratory --
A  Yes, sir.
Q  I gather you're familiar with this document, you've seen it before?
A  I'm the one that issued it out of the laboratory.
{3343}
Q  Do you know from your recollection or can you tell from your notes what K74 is, the item that was tested or from which the hair samples were obtained?
A  Well, this K --
Q  K74 is a hair sample itself or was that the item from which the hair sample was taken?
A  It looks like a non-head hair sample taken from the individual.
Q  Thank you.
@In connection with extradition proceedings in Canada through which the federal government was trying to extradite Leonard Peltier, did there come a time when you made out or signed, I should say, an affidavit with regard to some of the findings that you made in this examination?
A  Twice.
Q  Twice.
And I gather you signed one affidavit and then at a later time signed another affidavit?
A  Yes, sir.
Q  And I gather there were some differences between the two and that was one reason why --
A  I don't know.
Q  Now as to all of your reports that you did in conjunction with this test or this examination, and I want to make specific reference to several of them, I referred to the August 5, 1975 {3344} report and referred to the October 31, 1970 report which is marked as Defendant's Exhibit 135 and as to the December 4, 1975 report, the January 13, 1976 report, the January 16, 1976 report, the February 4, 1976 report and the February 10, 1976 report. Were these all prepared either by you or under your direct supervision and issued under your authority out of the firearms laboratory in conjunction with reporting findings that you had made as a part of your examination in this case?
MR. SIKMA:  Your Honor, may we approach the bench?
THE COURT:  Have you answered the question?
MR. LOWE:  Is there an objection to that question?
MR. SIKMA:  Yes, Your Honor. I'd object. It's totally irrelevant.
THE COURT:  You may approach the bench.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE:  I have a suggestion. We're getting close to lunch.
MR. SIKMA:  I want to go on. We have got this witness on the stand and he's got other cases to do in Washington, D.C.
MR. LOWE:  Why don't you let me finish my sentence.
We have got six minutes to lunch. What I'm doing by this, as I'm sure Your Honor knows, and Mr. Sikma knows, I'm {3345} going to lay full, thorough, proper legal foundation for introducing these reports.
Now obviously I must ask certain foundation questions in order to, and in order to make my record. It may be best if Your Honor wants to go ahead and excuse the jury five minutes early for lunch for us to do this in voir dire type of fashion to make any record and to convince Your Honor that they should be admitted properly rather than hold the jury here and try and do it at side bar.
There is going to be a lot of discussion, there are a lot of reports. It's not a convenient place for Counsel to refer to these reports and perhaps you'd like to look at some of them.
I am at that point where I want to do that. Within the next five minutes or so I will be offering them and I'm sure there will be objections, we know, from history on this case.
MR. SIKMA:  I would submit, Your Honor, under no circumstances would these reports in their totality be admissible. They would be meaningless to the jury. They would be completely confusing. They refer to approximately 3,000 items examined by this witness and others in the laboratory and they're kept for the purpose of discovery of relevant information for the government and they have been provided to the defense. But that does not make them {3346} admissible.
All of these items have not been discussed on direct examination. Only those items which have been discussed on direct examination or which are of impeaching nature would be admissible in this case and I would say that establishing a foundation because of the intent to introduce them apparently not to impeach, apparently to be used simply to confuse the jury. They could not be used as suggestions of evidence presented in proper testimony, I believe, as Your Honor ruled yesterday. Therefore, I would vigorously object to even wasting the time of going through, laying the foundation for these items if they are going to be offered into evidence in their totality.
I would submit that it would take hours of time of careful instructions to teach the jury to understand what these mean.
I will say further that they would be totally irrelevant to the issues in this case.
THE COURT:  For what purpose --
MR. LOWE:  All I would like is an opportunity to lay foundation upon which I can base a proper argument to Your Honor. I don't have enough right now to do that, that's why I think at this point it's difficult to particularly do that at side bar without the documents to actually look at.
We have got about four minutes to lunchtime. I {3347} suggest we discuss it at lunch now or when we come back from lunch take the matter up out of the presence of the jury. This is an important aspect of our case. Obviously, we're talking about the identification of rounds which the government will argue tends to show Mr. Peltier was involved and they're entitled to two things in general, Your Honor. I'll leave it at that for the moment. One, to show what weapons and weapon components give rise to reasonable hypothetical of innocence of Mr. Peltier. That is, they show the presence of other weapons and other persons who could have been the persons who killed the agents and we have a number of such components which have already been testified to and I want, I have other questions to ask before I finish with this witness to show the presence of other such components.
The second is to show there are components here which have not been identified to Mr. Peltier and which are specifically excluded from weapons he purportedly had in his possession.
I would also want to show the exhaustiveness of the examination conducted by the FBI and by the firearms people so that there can be no thought on the jurors' part that this was somehow just a reasonably good effort but not a real exhaustive effort because there are some significant items of evidence which are not present in this case which have {3348} never purportedly been found as far as we have disclosed which we think we're satisfied to argue inferences from.
There was an absence of evidence in a document. As a matter of fact, it specifically recognized in Rule 803 that a document can be shown, a business record can be introduced for the purpose of showing the nonrecordation of information. That's a specific separate item and we want to introduce these laboratory reports in some instances to show the nonrecordation of evidence.
I would want to have the opportunity to lay a more proper foundation before making specific argument. Of course, I could make an offer of proof but I think I should not be interrupted at this point when I'm making proper questions, proper foundation regarding these documents.
MR. SIKMA:  I would say it would be another thing, Counsel I think is very deceitful in this respect. He's left out the report which refers to Government Exhibit 34B. He goes up, takes all the reports up to that date and then carefully leaves out the report where 34B is identified.
MR. LOWE:  I don't think that's true. I think it may be identified in more than one report but I believe it's identified in one of the reports I listed. It is identified as having been sent to Washington in an earlier report. But it is not the only report of its examination and on February, I think it's February, subsequent to February 14. I think {3349} it's February 10, isn't it? That's when I thought it was. I'm not trying to eliminate that.
MR. SIKMA:  February 14 I think.
But at any rate I would state this is a total waste of time. We would if Counsel wants to bring out something, perhaps we can stipulate to it, that there were a lot of other items which were examined which weren't connected with this defendant. We agreed to that. But just to take time to establish a foundation which I assume is a similar foundation to all of the laboratory examinations, finders of items, would be meaningless for the jury to examine these items and we vigorously oppose it.
MR. LOWE:  Judge, as I understand the objection right now is to my asking questions, not to introducing the exhibits. I have been stopped at this point from asking perfectly proper questions and secondarily to that for laying a foundation for introducing, for example --
THE COURT:  You haven't been stopped.
MR. LOWE:  I mean I have been interrupted.
THE COURT:  Very well.
MR. LOWE:  The pending question is whether I will be stopped.
THE COURT:  We'll go into this out of the presence of the jury at 1:30.
{3350}
MR. LOWE:  Thank you, Your Honor.
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
THE COURT:  The Court is in recess until 1:30.
(Recess taken.)