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

CONT FROM TESTIMONY
TESTIMONY WILFORD "WISH" DRAPER CROSS EXAM
{BENCH} B
RESUME TESTIMONY C
{NO JURY} FBI ON A FISHING TRIP FOR AIM LEADERS D
WEAPONS EXCHANGED AMONGST GROUP E

VOLUME 6

CROSS-EXAMINATION
BY MR. LOWE:
 Q  Mr. Draper, my name is John Lowe. We have met before several times, haven't we.
 A  Yes.
 Q  And on two different occasions, one last summer and one last night, we were granted a consent interview with you, were {1076} we not?
 A  Yes, you were.
 Q  And you voluntarily talked with me about that time, didn't you?
 A  Yes.
 Q  I wanted to ask you some general background questions first, Mr. Draper.
 First of all, I don't remember whether this was brought out or not, are you a believer in the ancient Indian religion of the pipe?
 A  Yes.
 Q  During the time you were spending several weeks in the Jumping Bull area were there religious ceremonies conducted that you were aware of?
 A  Yes.
 Q  Would it be fair to describe those as sort of like what some other people would know as a church service but relating to the pipe?
 A  Yes.
 Q  Were there sweat lodge facilities?
 A  Yes.
{1077}
 Were those spiritual in nature when you used the sweat lodge?
 A  Repeat it again.
 Q  Was that a religious part of your religious beliefs when you used the sweat lodge?
 A  Yes.
 Q  Is that among other things for purification of you?
 A  Yes.
 Q  Did most of the members of the encampment participate in these various religious activities?
 A  Yes.
 Q  Did Leonard Peltier participate in them?
 A  Yes.
 Q  Are you now, or have you ever been a member of the American Indian Movement, AIM?
 A  Yes.
 Q  At the time this took place were you a member?
 A  Yes.
 Q  I want to pick a point to start on one area of inquiry, Mr. Draper, when you left the area and you were on this three or four or five day, traveling with the group after the events look place. And you mentioned at one point you were at Oscar Bear Runner. And you indicated that you talked with, or you were present when someone talked with Evelyn Bordeau. Am I remembering correctly?
{1078}
 A  Yes.
 Q  And you were about to tell us what Evelyn Bordeau reported to the group and I ask you now, for the purpose not of showing whether what she said was true or not, but to show state of mind of the people who were listening, if you will tell what it was that Evelyn Bordeau said.
 A  Well, this was at Bear Runner's and she told us that there were agents everywhere looking for you all. And she told me and Jimmy, "I'm going to have to take you guys someplace away from all this."
 Q  Did she say -- I'm sorry, I thought you were through. Go ahead.
 A  She told us, "We'll take you Canada."
 Q  All right. When she was talking about the agents, did she say anything about the conduct of the agents?
 MR. HULTMAN:  Well, if it please the Court, this is clearly -- I haven't objected at this point, but now all of this is clearly hearsay. And I object on this grounds from this point on, Your Honor.
 MR. LOWE:  Your Honor, I made, in order to be absolutely fair to counsel and to the Court, I made a clear statement that I was offering this evidence for proof of utterance and not for proof of the truth that was stated. That's a well-recognized comment and exception to the hearsay rule.
 THE COURT:  He may answer as to whether or not she said {1079} anything about the conduct of the agents.
 MR. LOWE:  Thank you.
 THE COURT:  You cannot go beyond that.
 A  Well, I don't really recall about what she said about the conduct of the agents.
 Q  (By Mr. Lowe) You don't recall?
 A  (No response).
 Q  Do you remember anything else she said at that time?
 A  No.
 Q  Okay. At that time or sometime fairly close after that did Evelyn Bordeau say anything to you specifically as to why you should go to Canada?
 MR. HULTMAN:  Well, if it please the Court, I object on the grounds that this clearly calls for hearsay. And I have no objection is counsel call this witness as to anything she said. This is an attempt to get into the record things that are clearly hearsay at this point.
 MR. LOWE:  We offer it for proof of utterance to show the state of mind of this witness as it affects testimony here today, as it affects other matters, and for no other purposes. So it's an exception to the hearsay rule, Your Honor.
 THE COURT:  I will allow the witness to answer the question.
 A  Can you repeat it again?
 Q  (By Mr. Lowe) Yes.
{1080}
 Why did Evelyn Bordeau you should go to Canada?
 MR. HULTMAN:  Well, I think there's a preliminary question to this, Your Honor. If he knows. And that's the only objection at this point I'm making.
 MR. LOWE:  I'll rephrase the question, Your Honor.
 Q  (By Mr. Lowe) What did Evelyn Bordeau tell you was the reason you should go to Canada?
 A  Because all of us would get charged with what happened there at Pine Ridge and Oglala, and she was protecting her son, she was protecting me, too.
 Q  What did she say you'd be charged with?
 MR. HULTMAN:  Well, now again, Your Honor, I object to this as going beyond, and again object on the grounds of hearsay.
 MR. LOWE:  Again, Your Honor, we offer it for proof of utterance. And I think I'm entitled to do that to show why this witness took certain actions and how it affects his state of mind right now and in earlier testimony or interviews.
 THE COURT:  The jury, I will advise the jury at this time that the exchange between the lawyers relates to a technical and sometimes difficult and complicated question, legal question of law. The answers which this witness is giving relating to what this other person told him are being permitted solely for the purpose of bringing out that this statement was in fact made. Not whether or not the statement {1081} was justified, whether or not the statement was true, but just the fact that the statement was made.
 And on that basis the Court will permit the witness to answer.
 Q  (By Mr. Lowe) Do you remember the question?
 A  No. Repeat it.
 Q  I'll just withdraw it and ask it again.
 What did Evelyn Bordeau tell you you would be charged with or would happen to you?
 A  She said, "You guys would be charged with murder."
 Q  All right. When she told you that did you either at that time or over to the next period of a day or so think about what she told you?
 A  Yes.
 Q  Did it worry you?
 A  Yes.
 Q  Did you think about what it would be like possibly to spend the rest of your life in prison?
 A  Yes. I thought about it.
 Q  Is that one of the reasons why you went to Canada?
 A  Yes.
 Q  At some point while you were in Canada, either through the suggestion of somebody else or just through your own thinking about the situation, did there come a time when you thought that if you cooperated with the FBI, or told them what they {1082} wanted to know, that it might prevent your being charged with murder?
 A  Yes.
 Q  And did you leave Canada and return to the area where you lived in Arizona?
 A  Yes.
 Q  When you got there did there come a time very shortly after you arrived when you were confronted by an agent of the FBI?
 A  No.
 Q  All right. Did there come a time when you were confronted by some law enforcement officer while you were in Arizona?
 A  Yes.
 Q  Will you tell the jury what happened.
 A  When I was in a pickup driving with this guy we had some beer and we were drinking. And there was a car coming in front of us, and it was a police car. And there was an FBI in there, and there was a BIA policeman.
 I guess they recognized me and there they pulled me over; and from there they told me about the subpoena of Rapid.
 Q  What was the first thing they did when they made contact with you by voice? What did they do?
 A  They just said the FBI, what he did was he came towards me and said, "Are you Wish?" I says, "Yeah." He told me, "Were you in Pine Ridge last summer?" I said, "Yeah." and then {1083} he asked me that a subpoena out here for me from Rapid City.
 Q  Now, is that the first thing he did, contact, or was it about something you were doing?
 A  That was the first contact.
 Q  Did he have his weapon drawn?
 A  Yes.
 Q  What kind of a weapon did he have drawn, do you know?
 A  A pistol.
 Q  And do you know who it was that did this and had the weapon draw?
 A  Yes.
 Q  Who was it?
 A  It was Charles Stapleton.
 Q  It he a special agent with the FBI?
 A  Yes.
 Q  What if anything was said about your drinking beer at that time?
 A  Nothing was said, but they just booked me for the beer charge and they took me to jail. And I spent the night in jail.
 Q  All right. I don't think you stated what time of the day was this that they saw you in the pickup?
 A  About 5:00 in the evening.
 Q  And about how long was it before they took you down to the jail?
 A  About three hours.
{1084}
 Q  Now, is that before they took you to the jail?
 A  Yes.
 Q  Where were you up until that time?
 A  I was in an office, and there they took me in there and they asked me all kinds of questions.
 And they took my wallet and they took all kinds of papers I had with me and they put it in a plastic bag. And the said, "We're going to use this as evidence," and I just went with them freely. And they put me in a chair and handcuffed me and tied me to the chair.
 Q  How did they tie you to the chair?
 A  I was handcuffed in the back like this (indicating) and he got a belt and put it around the chair and buckled it around me, and the chair with it.
 Q  Had you made any attempt to run or anything up until that point?
 A  No.
 Q  Had you said anything to them about trying to escape or run or anything of that nature?
 A  No.
 Q  Did that scare you when they did that?
 A  Sort of scared me, yeah.
 Q  Were the handcuffs tight?
 A  No.
 Q  And they talked to you that way for three hours?
{1085}
 A  Yes. And they talked and they called all over the places.
 Q  Did you give them permission to look at your wallet and the papers in it?
 A  No.
 Q  Did they take it nonetheless?
 A  Yes.
 Q  Now, who was present while this was going on?
 A  There was another BIA special agent, Frank Gadake.
 Q  All right. Where did you spend the night?
 A  In the jail.
 Q  And where, what town was that in?
 A  Chinle.
 Q  What happened the next day?
 A  Well, they took me to Gallup, that's in New Mexico, and there I met some more agents.
 Q  Who else did you meet there?
 A  James Doyle.
 Q  Anybody else?
 A  Ken Oliver is an agent from Gallup and Mike Ness.
 Q  All right. What happened there?
 A  And he told me about what happened in Pine Ridge and they asked me about what happened up there. And they said, "We'd like to have a statement from you," things like that.
 Q  Did they tell you in detail what had happened at Pine Ridge?
{1086}
 A  No. They just told me about what happened, and I just told, gave a statement. Then from there they took me home. Within a week we went to Sioux Falls, to the Grand Jury.
 Q  All right. Now, did Special Agent Stapleton and Special Agent Doyle both talk to you there in Gallup?
 A  Yes.
 Q  What did they tell you would happen to you if you didn't cooperate with them?
 A  Well, they asked me you'll get indicted.
 Q  Indicted for what?
 A  Murder charge.
 Q  Did that scare you?
 A  Yes, it did.
 Q  Did it sound to you like Evelyn Bordeau had been right?
 A  Yes.
 Q  Over the years prior to that event while you were sitting in Gallup, New Mexico, did you have a general awareness of the presence of the FBI on the reservations and near where you were living?
 A  Yes.
 Q  Did you have a general sense that the FBI had a lot of power to do things?
 A  Yes. In a way I thought.
 Q  Did you have a general feeling that they could pull strings to make things happen when they wanted to?
{1087}
 A  Yes. I had a general sense.
 Q  So when Special Agent Doyle and Special Agent Stapleton told you if you didn't cooperate you would be indicted for murder, did you believe them?
 A  Yes.
 ~Q  Where did you go next?
 A  Well, we went to -- I went to Albuquerque with Doyle, and we flew out of there and went to Rapid. And from Rapid we went to Pine Ridge again, the reservation.
 And they showed me where, took me back to Jumping Bull and Oglala and went to Bear Runner's place again and Morris Wounded's house. Then from there we went to Pierre and spent the night there, and the next day we went to Sioux Falls and went to the Grand Jury.
 Q  Now, in addition to telling you that if you didn't cooperate, that you would, that they would indict you for murder, did they tell you what would happen if you would cooperate? What they were willing to do?
 A  No. They just said --
 Q  Let me ask you specifically, did they tell you if you would cooperate that they would protect you?
 A  Yes.
 Q  Did they tell you they would give you a new identity?
 A  Yes.
 Q  Did they tell you they would get you a job somewhere else?
{1088}
 A  Yes.
 Q  Did they tell you they'd get you education or training if you needed it?
 A  Yes.
 Q  Did they tell you they could take care of you financially?
 A  Yes.
 MR. HULTMAN:  Might I interpose, Your Honor, voir dire? Just one or two questions to interpose an objection?
 MR. LOWE:  I would object. There was no objection to any questions that were just asked. They're answered and I want to move on.
 THE COURT:  Well, there's no question pending right now.
 MR. LOWE:  That's right.
 Q  (By Mr. Lowe) I show you what has been marked for identification as Defendant's exhibit 90, and I will ask you to take a moment and read that through.
 MR. HULTMAN:  Your Honor, could I renew my request of the Court in order that I might enter an objection to the last question that was asked and the response that was given in order that I might have the opportunity to then move if possible to have it stricken?
 Counsel, would you just let me finish, please.
 MR. LOWE:  I thought you were finished, Mr. Hultman. You stopped, you voice stopped, and I thought you were {1089} finished. I'm sorry, I didn't mean to interrupt you.
 MR. HULTMAN:  In order that I might set the basis, Your Honor, for an objection, it would only be one or two questions at the most.
 THE COURT:  On redirect you will be permitted to ask the question that you now are suggesting that you'd like to ask at this time. And if you establish a reason why the answer should be stricken it will be stricken.
 MR. HULTMAN:  All right. Thank you, Your Honor.
 THE COURT:  Very well.
 MR. HULTMAN:  Counsel, when he's finished might I look at the exhibit, too?
 MR. LOWE:  Certainly.
 THE COURT:  The court is in recess until 1:30.
 (Recess taken.)
{1090}
 AFTERNOON SESSION
 (Whereupon, at the hour of 1:22 o'clock, p.m., the trial of the within cause was resumed pursuant to the noon recess heretofore taken; and the following further proceedings were had out of the presence and hearing of the jury in chambers, the Defendant being present in person:)
 THE COURT:  Because this is a rather sensitive matter, I decided to ask you folks to come into chambers rather than to bring it up in the courtroom, even though the jury would be absent. After that incident this morning, in which I made the comment that someone in the audience was observed signaling, another member of the audience came to the Clerk of this Court and advised the Clerk -- apparently this person had been observing for a day or two -- it appeared that the Defendant was using the pipe, holy pipe as a means of sending signals to witnesses, by changing the position of it, moving the feathers; and I am not going to pass judgment on it one way or the other. I am simply asking, if there is any reason why the pipe could not be covered and left covered.
 (Counsel and Defendant confer.)
 THE COURT:  Now, the reason I asked the question as to whether it can be covered, I recognize the possibility that there may be some significance in the culture to have it uncovered; but on the other hand, if there is any {1091} possibility that it is being used for signaling witnesses, particularly witnesses of the Indian race, I am not going to permit that to go on.
 MR. LOWE:  Was there any specification as to what the significance of what was being done was or what was allegedly being done, so we have something more to go on?
 THE COURT:  It was told to Ralph.
 MR. HANSON:  As it was related to me, this person felt there was some significance in the feathers being placed in front of the pipe and then back of the pipe, and apparently brought to the head. That is the best I can relay this person's observation.
 MR. LOWE:  Was this a native American that said this?
 MR. HANSON:  I would just as soon not go any farther than a member of the audience.
 MR. TAIKEFF:  I would like to observe that the witnesses don't look in the direction of the defense table. I am at least 90 percent of the time focusing my attention on the witness who is testifying, and they don't look that way. They look either at the prosecutor, or they turn to the jury and give their answer that way. I was just going to say that I see nothing happening at the table that could possibly be any kind of a signal, but I think the important part of it is the fact that the witnesses aren't looking that way at all, with almost no exceptions to that {1092} fact.
 THE COURT:  There is no way that the witnesses can be monitored as to where they are looking.
 MR. TAIKEFF:  I am telling you Honor what I have actually observed.
 THE COURT:  I appreciate that, but I can appreciate the fact that the Defendant may want the pipe on the table and may want it uncovered. I am simply asking that if the pipe is on the table and if the pipe is uncovered, that it be placed in such a position that there is no maneuvering the pipe or feathers in relation to the pipe or anything else in relation to the pipe. That's all I am asking.
 MR. TAIKEFF:  That's understood, your Honor.
 THE COURT:  I will ask Mr. Peltier, do you understand that?
 DEFENDANT PELTIER:  Yeah, I still don't understand what is going on here.
 THE COURT:  Well, I fully explained it. If you have any questions, you are certainly free to ask them.
 DEFENDANT PELTIER:  I haven't given anybody any signal.
 THE COURT:  As I mentioned, Mr. Peltier, I am not passing judgment. The suggestion has been made by someone who claims to have been observing it for a day or two and {1093} because of what I did observe in the courtroom this morning, to insure that these witnesses give testimony uninfluenced to the maximum extent that it can be accomplished and without in any way depriving you of the right to have this symbol on your table and have it in front of you and have it uncovered, I am just simply asking that it remain in that position and that it not be moved by you, and that any feathers or other objects in relation to it not be manipulated; and as I say, I am not attempting to ascertain if there is any basis for it at all. I do not feel that I should have to do that. I do not want to do that.
 I thank you for coming in.
 (Whereupon, at 1:29 o'clock, p.m., the proceedings in chambers were concluded.)
{1094}
 (Whereupon, the following proceedings were had in the courtroom without the hearing and presence of the jury:)
 MR. LOWE:  While we're taking care of the proceedings, would it be all right for the witness to look at this, save a little time possibly?
 THE COURT:  Yes.
 The jury may be brought in.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 MR. LOWE:  Ready to proceed, Your Honor.
 THE COURT:  You may proceed.
 Q  (By Mr. Lowe) Mr. Draper, as we were breaking for lunch you were examining Defendant's Exhibit, I believe, 90, a seven page document which I showed to you and I'll ask you, first of all, the second through the seventh page, that is, the six pages that are attached behind the cover sheet, are those a favorable reproduction of the statement you made to Agents Dolle and Stapleton in Gallup, New Mexico?
 A  Yes.
 Q  That first page, was that covering sheet made by Special Agents Doyle and Stapelton?
 A  Yes.
 Q  And in the covering sheet there is a recitation by the agents that they advised you of your rights and told you what the purpose of the interview was and a few other things. Did {1095} you read them?
 A  Yes.
 Q Do you see anywhere in that form 302 that is before you any recordation by the agents of the fact that they made threats or promises to you, that is, did they threaten you would be indicted if you did not cooperate?
 A  Yes.
 Q  You don't see that anywhere in there, do you?
 A  No.
 Q  Do you see anywhere in there that they promised you if you cooperated you would have a new life, new job, education, financial assistance, do you see anything like that?
 A  No.
 Q  I did not cover this, I skipped over briefly when you said you had gotten back to Chinle. Let me cover this while we're here. Up until the time of this event, had you been a student or had you been employed or unemployed or what was your status up until June 26th, 1975?
 A  I was self-employed.
 Q  Self-employed?
 A  Yes.
 Q  How were you employed?
 A  I was arts and crafts, silversmith and painter.
 Q  And between June 26th and the date that you were interviewed which I believe was January 19, 1976, about six months or seven {1096} months later, what were you doing during that period for employment or school if anything?
 A  I wasn't going to school. I wasn't working.
 Q  After you were taken away from Gallup, I believe you said you were taken to Rapid City at some point, in South Dakota, is that correct?
 A  Yes.
 Q  Did you also go to Sioux Falls, South Dakota?
 A  Yes.
 Q  Did you appear before a grand jury and testify under oath on one or both of those occasions?
 A  Yes.
 Q  Was it on one of them or on both of them?
 A  One of them.
 Q  Which one was it?
 A  Sioux Falls.
 Q  Between the time you were arrested and the time that you testified in the grand jury, you've identified talking on one occasion to Special Agent Stapelton and Special Agent Doyle of the FBI. I'll ask you, were there any other FBI agents you talked with during that period of time?
 A  No.
 Q  Specifically let me ask you:  did you talk with Special Agent Adams during that time?
 A  Yes.
{1097}
 Q  And I'll ask you if you can recall, first of all, Special Agent Stapelton and anyone he might have been along with when you talked with him? Can you tell the jury about how many hours you spent talking and being interviewed by Special Agent Stapelton?
 A  About three hours.
 Q  If I were to suggest to you that on an earlier occasion under oath you indicated eight to nine hours, would that sound reasonable? Would that refresh you recollection?
 A  Yes.
 Q  Eight to nine hours sounds about right?
 A  Yes.
 Q  And about how many hours in addition to that did you spend being interviewed by Special Agent Adams, if you recall?
 A  About two.
 Q  If I suggested to you that on the earlier occasion when you testified under oath you said four or five hours, would that refresh your recollection?
 A  Yes.
 Q  So then between the time you were arrested and the time you appeared at the grand jury, you spent somewhere between 12 and 14 hours being talked to and interviewed by FBI agents, isn't that correct?
 A  Yes.
 Q  Now how about members of the United States Attorney's {1098} staff, were you ever interviewed by them prior to going before the grand jury?
 A  Yes.
 Q  Can you tell the jury who you were interviewed by?
 A  By Robert Sikma.
 Q  Is that the same Robert Sikma sitting at Counsel table on the left end?
 A  Yes.
 Q  About how many hours did you spend being interviewed by Mr. Sikma?
 A  About two, three.
 Q  On how many different occasions did you talk with him?
 A  At a grand jury in Sioux Falls and Cedar Rapids, Iowa there at the trial.
  Q And all told how many hours would you say you have been interviewed by Mr. Sikma or talked with him?
 A  About six, seven.
 Q  If I suggested that last summer under oath you testified that you met with him about five times for about eight hours, would that refresh you recollection?
 A  Yes.
 Q  Now during the early part of last year prior to any sworn testimony you may have given in any proceeding during interviews with Mr. Sikma, did he give you a transcript of your grand jury testimony for you to review and read over?
{1099}
 A  Yes.
 Q  Did he give you 302s that had been written by FBI agents about their interview with you for you to read over?
 A  Yes.
 Q  Would I be correct in suggesting that there were three or four such 302s?
 A  Yes.
 Q  Now at the time you gave testimony before a grand jury and at some times thereafter you have made some specific references to weapons that have been shown to you in this courtroom by their titles, their specific designations and I ask you during the time you were in the Jumping Bull area, how many of the various weapons were there you know to call by name or caliber or manufacturer, if you recall?
 A  There was about eight, something like that.
 Q  Okay. Let me clarify. Of all the various weapons that you had seen at Jumping Bull's, how many did you identify yourself when you were in Jumping Bull's before this incident took place or at the time it was taking place, how many different ones did you recognize by name?
 A  Just about two or three of them.
 Q  And did you remember which ones those were that you identified by name or by caliber?
 A  There was a .30.30 and a 22 and a shotgun.
 Q  Now since that time you have on various occasions identified {1100} other of those weapons that were in the Jumping Bull Area by specific names or calibers or manufacturers, have you not?
 A  No.
 Q  You have not in testimony at various times?
 A  Yeah. The agent told me what type of guns they are but I don't know what type they were.
 Q  Are the agents the only ones who told you what type of guns they were?
 A  Yes.
 Q  I'll ask you --
 MR. HULTMAN:  May we approach the bench, Your Honor.
 (Whereupon, the following proceedings were had at the bench:)
 MR. HULTMAN:  Your Honor, I think in this trial record it's very clear on direct examination that this individual has identified no more than three guns as per his responses just now by any type of name. I made it very clear on my questioning on direct examination that he was not to in any way refer to names of objects he has learned since. Now I object at this point. This is an attempt on the part of Counsel, as he did in the last trial, Your Honor, specifically to try and show to the jury that this young man now knows at a later time that a certain weapon, an AR 16 or 15, for example, is an AR 15 or 16. And then by that to insinuate to the jury that there is something sinister or the {1101} government has in some way done something that is in a bad light and it is the reason for this that I object now to going into anything of that particular kind because it's only for that purpose.
 MR. LOWE:  The purpose of the testimony is to show as this witness has previously testified under oath that he was coached, that he was given information that he did not himself have prior to his going before the grand jury and before going to trial last summer that it was not disclosed except on probing on cross-examination in the trial. And in the event of the grand jury, of course, there is no Counsel there so it was never disclosed to the grand jury. This information he was testifying about was not his own but had been given to him by Mr. Sikma and the FBI. I think this is quite relevant to have the jury judge the candor, the honesty and lack of bias of this witness. If this witness has been coached repeatedly by the government in ways which plant the fact in his mind as we believe the evidence shows and as he has testified under oath before, then that is quite relevant for the jury to know and quite proper for us to show, to show the bias of the witness and to cast doubt on his credibility. That is in sworn testimony of the transcript, Your Honor. This is what I'm referring to an I refresh his recollection here.
 MR. HULTMAN:  Your Honor, if I might speak one more time. This is an attempt, as I say, on the part of Counsel. I {1102} would ask him at this time, the testimony in this record at this time to date, one item that makes the category he's now probing on as far as this record is concerned in any way. That is purely an attempt on Counsel, against Counsel, that is exactly what it was last time and I submit it is again.
 MR. LOWE:  I don't understand what the question is. The record is complete --
 MR. HULTMAN:  What?
 MR. LOWE:  -- with Mr. Draper saying Mr. Sikma told him what the AR 15 was, for example, and said other FBI agents told him other weapons --
 MR. HULTMAN:  Tell me what the showing is, John, other than in this trial he knows what an object of this kind looks like. There was nothing to do whether it is or isn't an AR 15 and I made that very clear on direct examination.
 MR. LOWE:  Well, number one, he has already made a reference to a 308 or --
 MR. HULTMAN:  308 or 303.
 MR. LOWE:  Both of those weapons, and didn't know either one of them. Somebody put that information there and whether or not the government, they had their fingers burned last summer, knows that, enough not to ask him these questions, it doesn't matter. The point is that he has been coached and coached and coached. He has been 14 to 16 hours with FBI agents and eight hours with Counsel and in this his sworn testimony he {1103} has said he was given this information by those people that he did not himself have. That is quite relevant for this jury to know in order to judge whether Mr. Draper is testifying about what he knows about or what somebody else was told him.
 MR. SIKMA:  Your Honor, I would say --
 MR. HULTMAN:  I would ask Counsel be given an opportunity because it is a --
 MR. SIKMA:  Counsel is attacking my integrity. I have never advised this witness what any of those weapons are. I was surprised at this witness' ability to recognize certain weapons and to point out certain items on the weapons. I have never advised this witness as to what various weapons were in my interviews. It is for some reason or another, had this knowledge beforehand and only upon, I would say, the coaching of Counsel in this respect has he ever come up with those kind of statements.
 THE COURT:  Well --
 MR. SIKMA:  I think it's --
 MR. LOWE:  I'll get the transcript and let you see where Mr. Draper -- I'm merely going on what Mr. Draper said.
 THE COURT:  I don't know, it's -- just a moment. I don't know it's necessary to go into this. I do observe, however, that, and I'm not sure you have a valid objection at this point. I do observe, however, that Mr. Lowe is doing exactly what you objected to.
{1104}
 MR. HULTMAN:  Ask me not to do.
 THE COURT:  Asked you not to do.
 The witness answered two or three hours, then you go and say, "Would it refresh your recollection if I told you that you testified under oath you went six or seven hours." This is exactly what you people complained about the other side.
 MR. LOWE:  Judge, I'm on cross-examination. There is a world of difference between reinforcing your witness and being able to cross-examine.
 THE COURT:  It's still not the proper way to cross-examine. The proper way to cross-examine on the basis of a statement is to show him the statement.
 MR. LOWE:  I'd be happy to do that. I've never had that done before, Judge. I'd be happy to do it.
 My understanding was that's when it was his witness. I'll be happy to do it thataway.
 THE COURT:  Or the very least to specifically read that statement, the lines and page. I don't know, I think I would have to agree with you that on cross-examination it is not necessary for you to actually take it and show it to him because you do have a little different legal situation, but you should read the statement.
 MR. LOWE:  I'd be happy to.
 THE COURT:  Line and page.
{1105}
 MR. LOWE:  We'll do it.
 THE COURT:  But insofar as your objection is concerned, I think it's entirely proper cross-examination. If you can show it in a legitimate manner there has been something, some pressure or some reason why the witness may have testified as he did on direct.
 MR. HULTMAN:  All right, Your Honor.
 Your Honor, then I continue to object because I don't want to, could I have a continuing objection and would the Court then --
 MR. LOWE:  It's understood.
 MR. HULTMAN:  On the agreement of Counsel if it reaches the point where it would be repetitious or beyond the bounds that the Court would then so intercede. I don't want to, I want a standing objection but I don't want to interfere with Counsel, Your Honor.
 THE COURT:  Very well.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 MR. LOWE:  Would you read back the last question, please.
 (Whereupon, the following questions and answer were read back:  Are the agents the only ones who told you what types of guns they were? Answer:  Yes. Question:  I'll ask you --)
{1106}
 MR. LOWE:  Can I just have a moment, Your Honor?
 THE COURT:  You May.
 MR. LOWE:  Let me strike that last question.
 Q  (By Mr. Lowe) Mr. Draper, you said that you knew two or three of the weapons in the Jumping Bull area. Isn't it a fact that all the other names of weapons were given to you by the FBI or Mr. Sikma?
 A  That's right.
 Q  When you were being interviewed by the FBI agents after your arrest prior to the time you testified in the Grand Jury, did they show you a lot of pictures to see if you could identify various people?
 A  Yes.
 Q  Was one of the people living in the Jumping Bull area during this general period of time before this incident Dennis Banks?
 A  Yes.
 Q  And his family?
 A  Yes.
 Q  He was, was he there on that particular day?
 A  No.
 Q  And did either FBI agents or Government attorneys trying to ask you questions which were aimed at determining whether Mr. Banks was involved in this incident in any way?
 MR. HULTMAN:  Now, Your Honor, I'm going to object {1107} because of the generalness of the question. At this point we're talking about since the beginning of time, and I have no objection to counsel, if he wants to ask specific questions with reference to who did what, when, for example the FBI, and I have no objection to that question.
  On the other hand if he wants to ask questions about counsel, then as to times and places this individual indicated times and places as to when counsel for one side or both sides may have, again I'll have no objection. But I'm going to continue to object if we're going to lump counsel and the FBI and all times and places into a general question of this kind. And that's the basis for my objection at this time and for this point forward, Your Honor, rather than me making it again. I'll just enter the general objection at this time.
 THE COURT:  Well, I fail to see the relevancy of the last question.
 MR. LOWE:  The relevancy will be clear very shortly, Your Honor, through a series of questions about that.
 In response to Mr. Hultman, I can certainly ask a general question and then if I get a positive response I can then narrow it down more specifically. But it there's an awful lot of time instead of naming sixty-five FBI agents one at a time. To say did any FBI agents or any Government counsel ask this, and then if I get a positive response I'll try and pin it down and/or Mr. Hultman can on redirect. I don't think {1108} it's anything improper about the question.
 The witness has not indicated that he doesn't understand or he can't answer it.
 THE COURT:  Except as I mentioned I do not see the relevancy.
 MR. LOWE:  Does the Court want me to state the relevancy?
 MR. HULTMAN:  If it please the Court, in the presence of the jury I think, Counsel, I would object further because this is an attempt to get before the jury matters that are not relevant.
 MR. LOWE:  Mr. Hultman, wasn't going to say I was going to offer it to the jury. I will come to the sidebar if the Judge wants me to tell it.
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 MR. LOWE:  Your Honor, Leonard Peltier is a leadership person in the American Indian Movement and we will have testimony to back that up. I don't even think the Government would deny that. There was at least one occasion, maybe more than one occasion, in which there was interrogation of Mr. Draper by FBI agents, perhaps by Government counsel, I'm not clear I'll have to say, which there was a concerted effort to list and identify virtually all of the national American {1109} Indian Movement leadership personnel in an attempt to sweep them into this incident in some way, or to determine whether they were involved.
 Dennis Banks is simply the first of a list of them. This came out in a previous trial proceeding. It is the theory of the defense that the reason that Leonard Peltier was singled out in this is that part of an ongoing campaign to discredit and to remove him from any kind of activity of members of the American Indian Movement we believe, or the leadership.
 We believe that showing that there was great attempt made to involve other leadership members of the American Indian Movement is part and parcel and will dovetail with the testimony that the defense will put on indicating that that is part of a motivation of the Government in trying to convict Mr. Peltier.
 And Mr. Draper will so testify that they asked him about all of these various AIM members, including people who apparently had never been to Jumping Bulls'.
 MR. HULTMAN:  First of all, on the record, Your Honor, I take personal offense to the last comment that this is an attempt on the part of the Government, this trial and the proceedings. These proceedings have taken place according to law through grand juries, through investigations, through indictments, and I take personal affront to the last comment {1110} of counsel to his statement that we have, to-wit, in some way with this particular defendant a cause of some kind. That's the first comment.
 Now in response to the general issue. This is part of the reason for the Motion in Limine, Your Honor, and now I will enter my objection of relevancy from this point on to the matters here. There is a lawful basis for asking any question about Dennis Banks with relationship to the factual issue involved because he had to live, as the testimony says, in one of the three houses. Now, I don't know much of a better reason, in fact it would be negligence on the part at best of any investigator or any agency of the Government having anything to do with this case, not to at least find out something of what the whereabouts of one of the persons who lived in one of the three houses on the day concerned.
 So I'm saying beyond that, and to the part that he specifically played or did not play, and the record of the last trial will clearly show he had nothing to do in any way, wasn't even in the area that particular day, and it's for the sole reason that counsel wants to bring in an issue which is not relevant. And that's now the basis for my objection.
 THE COURT:  The issue before the Court, as I perceive it, is whether or not this defendant either killed or aided and abetted in the killing of the two persons named in Count 1 {1111} and Count 2 of the indictment. This individual has testified with reference on direct, with reference to the whereabouts of the defendant and to his observations as to what went on and as to his personal participation in that. Now, that's all, and what happened after the event.
 Now, what Dennis Banks has to do with the factual inquiry on that issue is beyond me. And I sustain the objection on the grounds of relevancy.
 It may be something that you can bring up on defense if you can show what relevancy, but certainly not relevant to the cross-examination of this witness at this time based on his direct testimony.
 MR. LOWE:  May I say two things for the record?
 THE COURT:  You may.
 MR. LOWE:  First, Mr. Hultman should address his personal affront, his personal offense, to Mr. Peltier. I trust that he understands that counsel is announcing defense positions or strategies does not necessarily state counsel's personal views, but rather the views of the defendant.
 MR. HULTMAN:  I accepted it as that.
 THE COURT:  And I might state, if I might interrupt you, that I pretty much ignore these interchanges between counsel when they get to that basis.
 MR. LOWE:  Secondly, Your Honor, we believe that there will be a very substantial issue. I think it's already pre-{1112}sented itself, and it will be enlarged substantially during this trial as to tampering with evidence and with witnesses of threats to witnesses and of coercion, of impropriety of the mental misconduct.
 Now, whether the Court or the prosecutors believe that that is raised to the level of a factual issue or proven or not, is not the point. The point is that it will be a fact issue for the jury. One of the things that is proper to show in relationship to that which goes, of course, to the credibility of all the witnesses of the Government is motive. And if the jury sees no possible motive for the Government falsifying, and when I say the Government, or any of its agents, I don't mean Government counsel certainly necessarily, but if there is no motive whatsoever it is less likely that the jury will perceive that that has been going on.
 We believe that it is proper for us to show a motive from trying to falsify evidence against Mr. Peltier if that's what the evidence does show. And that's of course what Mr. Peltier believes it shows by showing there was a conscious effort to interrupt and undermine the leadership of the American Indian Movement because the falsification would be consistent with that goal.
 That is the reason that I would proffer from all of this testimony. I want the record to be clear on that so that {1113} if you make that ruling you do so with the understanding or proving it would be.
 THE COURT:  The ruling of the Court is that that evidence is not proper under cross-examination of this witness at this time.
 MR. LOWE:  All right, sir.
 May I make just an offer of proof on the record?
 THE COURT:  You may.
 MR. LOWE:  In a previous trial, first of all, may I ask a point of inquiry? The transcript of the previous trial was ordered prepared by the Court. Is that transcript lodged with the Court in any way so that we can refer to it without actually introducing parts of it, again; or is it not, because that will simply my inquiry.
 THE COURT:  There is no transcript of the previous trial to my knowledge. I authorized the preparation of the transcript so counsel for the defense could have copies of anything which the Government ordered. To my knowledge that's all the transcripts that have been prepared.
 MR. LOWE:  I just wanted to be sure so I didn't refer to it and think it was part of the record.
 THE COURT:  No, it has not been made a part of the record in this case, and I have no intention of making it a part of the record.
 MR. LOWE:  My offer of proof is that Mr. Draper would {1114} testify, if allowed by the Court, that he was asked about many of the national AIM leadership personnel, such as Dennis Banks, Russel Means, Clyde Belcourt, Vernon Belcourt, Stanley Holder, Carter Camp, and that Mr. Draper understood these to be American Indian Movement personnel leadership at the time it was asked. And we would proffer that as the type of evidence we will submit in further showing of what I have represented to the Court. Thank you.
 THE COURT:  Very well.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and present of the jury:)
 Q  (By Mr. Lowe) Prior to the time you were arrested in Arizona by Special Agent Stapleton had you been involved in conduct which resulted in your being charged with criminal offenses in one or more jurisdiction?
 A  Yes.
 Q  Would you state what jurisdictions and what the charges were.
 A  In Phoenix I was charged with strong arm robbery.
 Q  Anything else?
 A  No, that's it.
 Q  How about at the time you were arrested?
 A  Only the alcohol charge.
 Q  Okay. And I will ask you whether it has been some time since your arrest, perhaps since your grand jury, whether you {1115} had in your mind that these charges would be taken care of for you as part of your cooperation in this case?
 A  Yes.
 Q  In fact you have not been convicted in either of those cases, have you?
 A  No.
 QQ And in fact they are not pending against you either, are they?
 A  No.
{1116}
 Q  Now, you have described, told rather, that there was some 12 to 14 hourse that you were interviewed by FBI Agents and about eight hours by Mr. Sikma; and let me ask you this:  Would it be fair to say that every time you go over the facts again with someone, you are able to remember the facts clearer when you talk about it the next time because you have been over them again?
 A  Yes.
 Q  In fact, each time you go over it again with an FBI Agent or the United States Attorney, you are able to remember the details in much more detail, aren't you?
 A  Yes.
 Q  Would it be reasonable to suggest that it is possible during these interviews every time you go over it again and again, that sometimes you might pick up a little detail here and there that you heard from one of the Agents and you might possibly remember that in a later interview?
 A  Yes.
 Q  So it is possible as to some of the things you have told us here that you are referring to something that some agent may have told you happened rather than what you actually saw or heard yourself, is that possible?
 A  Yes, that's possible.
 (Counsel confer.)
 Q  (By Mr. Lowe) Now, going back to the time prior to the {1117} incident on June 26th, 1975, I will ask you if the people who were present in Jumping Bull compound or in that general area, didn't include a person named Jean Day?
 A  No.
 Q  Let me suggest this to you:  Were one of the people in there a girl named Jean from Wisconsin?
 A  Yes.
 Q  If I suggested her name was Jean Day, would that refresh your recollection, does that sound right?
 A  Never heard her last name.
 Q  All right. What was her relationship to any other people in the camp, if anything?
 A  Well, she was a good friend of ours and a good friend of everybody.
 Q  I didn't hear what you said first. I am sorry.
 A  She was a good friend of us, and she was a good friend of everybody around the Jumping Bull area.
 Q  Was she somebody's girlfriend in particular?
 A  Yes.
 Q  Was that Leonard Peltier?
 A  Yes.
 Q  Do you remember during the time prior to this incident on any occasion meeting or seeing a woman in the Jumping Bull Area named Anna Mae Aquash?
 A  Yes.
{1118}
 Q  Did you ever see a woman, or did you ever know a woman during that time named Myrtle Poor Bear?
 A  No.
 Q  On June 26th, 1975, the date of this incident, do you know whether there was a person named Myrtle Poor Bear in the camp area?
 A  No.
 Q  Perhaps my question was not phrased as well as it could have been. Because you said "no", I am not clear. You mean that you don't know or that there was no such person, will you just state?
 A  No. I didn't see no person. I didn't know Myrtle Poor Bear until I got to Sioux Falls. A picture was given to me of Myrtle Poor Bear.
 Q  Did you know who it was?
 A  No.
 Q  Had you ever seen her at the camp?
 A  No.
 Q  And when I say "the camp", I mean the Jumping Bull area?
 A  I might have seen her, but I don't remember. I can't place her.
 Q  If she had been Leonard Peltier's girlfriend --
 MR. HULTMAN:  (Interrupting) Now, if it please the Court, I am now going to object. This question has been asked and answered four times. The foundation clearly {1119} shows that this witness doesn't know Myrtle Poor Bear.
 MR. LOWE:  Your Honor, he said he wouldn't remember. I am just going to ask a foundation question whether he would remember if he had seen her. That is proper cross
 THE COURT:  You may ask the question.
 Q  (By Mr. Lowe) If this person had been a girlfriend of Leonard Peltier during the time you were living there, do you think you would have known her?
 A  No.
 Q  You did know Jean Day there though?
 A  Yes.
 Q  And that was Leonard Peltier's girlfriend?
 A  Yes.
 MR. HULTMAN:  Now, I object, your Honor. That question has been specifically asked and been answered. It is the exact question and the exact answer, and I move that the last question, and response go out as repetitive.
 THE COURT:  It is cumulative.
 MR. LOWE:  Thank you, your Honor.
 Q  (By Mr. Lowe) During the time you lived in the Jumping Bull area, were you aware of fear of confrontation or attacks from the goons?
 MR. HULTMAN:  Your Honor, I have no objection except that we are using a term at this particular point, and I would have no objection if counsel would ask the question {1120} of this witness of what the word means. If he would take it in that order, the government would have no objection.
 MR. LOWE:  I have no objections to doing that, your Honor.
 MR. HULTMAN:  I have no objection if he does that, your Honor.
 MR. LOWE:  Strike that last question. I will withdraw it.
 Q  (By Mr. Lowe) Did you ever hear the term "the goons"?
 A  Yes.
 Q  Do you know who the goons are?
 A  Yes.
 Q  Tell the jury who the goons are?
 A  The goons are, you could say, civilians or just regular people who work for the police, and they do the dirty work for the BIA police of Pine Ridge Reservation there, and they are all hired by Dick Wilson.
 Q  How did the goons feel about AIM people back then?
 A  They feel harsh about AIM. They don't get along with AIM.
 Q  Now, let me ask you, was there, among the people in the Jumping Bull area, including the residences and the Tent City area, was there a fear that there might be an attack from the goons?
 A  Yes, there was a fear, but they never came; and yes, there was a fear among the people there.
{1121}
 Q  Did you feel that the place the goons were most likely to attack was the Tent City where everybody had guns and where the leaders were staying?
 A  Yes.
 Q  Is that the reason why you moved out of the Tent City, is that one of the reasons you were afraid to be down there instead of up at the houses?
 A  Yes.
 Q  Would it be fair to say that you were afraid if you didn't, you would get caught in an attack and get caught in a gunfire down there?
 A  Yes.
 Q  Would it be fair to say that there was an atmosphere of fear around the Jumping Bull area there with relation to being attacked?
 A  Yes, you could say.
 Q  On the day before this event you described an incident in which you were confronted by two FBI Agents, Coler and Williams, and some BIA officers in another car, I believe you said.
 Now, I will ask you if you will state what happened when they first pulled up next to you on Highway 18.
 A  They just told us to stop right there, and I think it was Coler got out and talked to Norman or Mike, and they asked us if we knew Jimmy Eagle, who Jimmy Eagle was, and we told him, "We don't know Jimmy Eagle," but Coler wasn't too sure how {1122} Jimmy Eagle looked; and they took down our names, and that was it, and when they found the clip on Norman, they began to get leery of us, and then they took us to the Pine Ridge.
 Q  Did they search you at any time?
 A  No.
 Q  Did they tell you that you had any choice on whether you went into Pine Ridge or not?
 A  No.
 Q  Did they ask you or did they tell you, that is, did they ask you or did they tell you to go with them? I should finish the sentence.
 A  Well, they asked us.
 (Counsel confer.)
 Q  (By Mr. Lowe) Now, when you got back from Pine Ridge that evening -- you were talking quietly, and I am not sure I heard what you said -- but I understood you to say that when you told Leonard Peltier that the agents had taken you to Pine Ridge, he asked whether they had given you a hard time or something to that effect, is that correct?
 A  Yes.
 Q  And you told him that they had not, is that correct?
 A  Yes, they didn't give us a hard time.
 Q  And then he said, "That's o.k. then," or something to that effect?
 A  Yes.
{1123}
 Q  Now, the next morning, calling your attention to the day of the incident, June 26th, 1975, you described in the late part of the morning being in the Tent City when the shots were first heard; and I want to back you up from that a little while, perhaps an hour, let's say, take the hour before you heard the shots and ask you what were you actually involved in doing at that time during the hour before the shots?
 A  I was there in the tent area talking with the guys there.
 Q  Was everything calm?
 A  Yes.
 Q  Did anybody have any excitement or any thought that any trouble was going to happen?
 A  No.
 Q  Were people preparing for lunch or anything like that?
 A  Yes, Everybody was just going about what they usually do.
 Q  Was there anybody down there preparing for an ambush of FBI Agents while you were there?
 A  No.
 Q  Did anybody even mention FBI Agents coming at that time?
 A  No.
 Q  Now, you say you were talking with the guys. Just tell the jury who the guys were.
 A  I was talking with little Jimmy and Norman Charles, Mike Anderson, Norman Brown.
 Q  How many people were there named Mike Anderson living at {1124} the Jumping Bull's during this period of time?
 A  One.
 Q  And would you describe him, about how old was he?
 A  16.
 Q  Do you know if you saw him yesterday in the witness room while you were here in the courtroom -- the courthouse?
 A  Yes.
 Q  So is that the same Mike Anderson you are referring to?
 A  Yes.
 Q  And as I understand what you are telling us for about an hour prior to the first shots being heard you were in a position of talkig with Norman Charles and Mike Anderson, is that right?
 MR. HULTMAN:  I object to that as not being a correct statement of the record.
 MR. LOWE:  I think it is a correct statement and if it isn't, Mr. Draper can correct, me. That's why I am asking the question. May the witness answer?
 THE COURT:  The witness may answer.
 A  Yes, he was there about an hour before the shots started.
 Q  (By Mr. Lowe) Thank you.
 Now, during this hour before the shots were fired, did you see Leonard Peltier?
 A  No.
 MR. LOWE:  May I have a moment, your Honor, please?
 THE COURT:  Yes.
{1125}
 Q  (By Mr. Lowe) I refer to a statement you made under oath last summer in another proceeding. I am referring to Page 1015, counsel, at Line 4; and I read you the following, interchange between you and an attorney, to refresh your recollection, Mr. Draper.
 Question:  What I am asking is whether you told us yesterday that both Bob and Leonard were there when you distributed the water?
 Answer:  Yes.
 Question:  Now how soon after you distributed the water was there shooting?
 Answer:  About 30 minutes to 45 mimltes.
 Now, based on hearing that, I will ask you whether that refreshes your recollection as to whether you saw Leonard Peltier during the hour before the shooting took place?
 A  No, I didn't see Leonard.
 Q  This doesn't refresh your recollection?
 A  No.
 MR. HULTMAN:  Did you, counsel, read the third line of that page, the response on the third line? I mean, I think it would be appropriate if you did, the third line of the page to which you are referring, with reference to the specific question.
 MR. LOWE:  There is a whole preceding section there I would have to read into the record. There was certain {1126} conversation.
 Let me finish, will you, Mr. Hultman?
 There is a preceding dialogue about different people and where they were and what elicited the conversation which I quoted was a statement:  Bob was around. I didn't see Leonard around; and then on further examination. Mr. Draper stated that he had seen him 30, 45 minutes before the shooting.
 I mean, you are free to read any part of the transcript when you have redirect, Mr. Hultman, I have no objection to that.
 Q  (By Mr. Lowe) Now, I believe you said that when you were sitting there talking with Norman Charles and Mike Anderson, that you first heard three shots and then some more, am I correct about that?
 A  Yes.
 Q  Do I also recall that you said that some people started running up towards the shots?
 MR. HULTMAN:  If it please your Honor, again I didn't have time to interpose the objection; and I want to go back and interpose an objection on the part of the last question, the last complete question; and that is, I object, your Honor, on the grounds that that is not a proper statement again of the record. That's the reason that I make my objection as to who was in the presence of {1127} this witness at the time he heard the shots, the specific people.
 MR. LOWE:  Mr. Hultman has been listening to a different witness than I have, your Honor. I will re-ask the question.
 Q  (By Mr. Lowe) Just immediately prior to your hearing the shots, were you sitting and talking with Norman Charles and Mike Anderson?
 A  No. I wasn't talking when I heard the shots.
 Q  Were they with you when you heard the shots?
 A  Yes. They were around, but I wasn't with them.
 Q  O.k. So when you and Norman Charles and Mike Anderson were there in the tent area and you first heard the shots, I believe you said that you heard three shots first and then some more, am I correct?
 A  Yes.
 MR. HULTMAN:  Now, again I object, your Honor, for the same reason that the statement that counsel is using is not a fair statement of the record. The witness said they were around. He did not say he was with them at that particular time, and "around" can be anywhere.
 THE COURT:  The witness said they were around, he was not with them.
 MR. LOWE:  He said he wasn't talking with them. I will let the jury remember what he said. I don't think {1128} there is any question about what he said.
 THE COURT:  All right. Then you should phrase the question in the words of his answer.
 Q  (By Mr. Lowe) Let me ask you again, Mr. Draper, just prior to hearing the shots was Norman Charles and Mike Anderson there in the tent area with you?
 A  No. they weren't with me, but they were around.
 Q  They were right around in the tent area?
 MR. HULTMAN:  Again I object.
 MR. LOWE:  I am on cross examination. I think Mr. Hultman is trying to tell the witness what to say, and I strenuously object to it.
 THE COURT:  Well, the objection is overruled. You may answer.
 A  They was around, but I didn't see them when the shots first rung out.
 Q  (By Mr. Lowe) But during the hour prior to the shots you did see them down there?
 A  Yes, I saw them earlier.
 Q  And you saw them during the hour prior to the shots, didn't you?
 A  Yes.
 Q  All right. Now, during the hour prior to the shots, when you saw Mike Anderson, did he say anything to you about "Hey. I just got back from being up on the roof up at the other end {1129} of the Jumping Bull's"?
 A  No.
 Q  Did he look to you like he was excited, like he just finished running a half mile?
 A  No.
 Q  Did he look like he was out of breath from having run a half mile?
 A  I didn't see him when the shots first rang out.
 Q  But prior to that, when did you see him?
 A  Yes, a little after.
 Q  But before the shots you didn't see him at any time when he was excited and out of breath, did you?
 A  No.
 (Counsel confer.)
 Q  (By Mr. Lowe) Now, when you heard the first three shots, not talking about any later, but the first three shots, did you say that some people started running towards Jumping Bull's?
 A  Not at that moment, but a little while after they started running up there.
 Q  How long would you say, a minute or two?
 A  A minute. After that, Mike came back down, and then he went back up again. Then later Dino came, and Bob came, and they ran back up there; but I didn't see the whole thing at the same time, but I was walking to the camp, walking from them away from them.
{1130}
 Q  All right. Now, when the shots first rang out, and then about a minute passed, you said, and some people ran up towards Jumping Bull's, is that right, they ran up towards Jumping Bullls?
 A  Yes.
 Q  Was Mike Anderson one of those people?
 A  No. He came a little later.
 MR. LOWE:  O.k.
 (counsel confer.)
{1131}
 MR. LOWE:  Could I have just a moment, Your Honor.
 THE COURT:  You May.
 Q  (By Mr. Lowe) Last evening we had an interview with you across the hall, didn't we?
 A  Yes. And there was a court reporter present we arranged for through the judge, wasn't there?
 A  Yes.
 Q  I'll read you a question and answer sequence you gave last night and ask you if you --
 MR. HULTMAN:  If it please the Court, at this particular time I would make a request that Counsel for the government be given an opportunity to, one, see the document so I can be in a position in order to enter an objection at a proper time.
 At a consent interview was given and I had no knowledge of material now that Counsel is alluding to and has no way in which to enter an objection of any kind.
 MR. LOWE:  I would certainly offer at this time two things:  First of all, I'd be willing to give Mr. Hultman all of our interview notes if he'd be willing, to give us all the FBI interview notes.
 MR. HULTMAN:  If it please the Court, Your Honor, I'm referring to a transcript and not any notes. Counsel understood clearly what I was referring to.
{1132}
 MR. LOWE:  That's no different category.
 MR. HULTMAN:  It's all the difference in the world, Counsel, and you know it.
 MR. LOWE:  No different category.
 I think this is a matter of work product. The reason we asked to have a court reporter present so there was no question about impropriety at the interview.
 MR. HULTMAN:  If there is no other copy, Your Honor, the government would allow Counsel to proceed if I just be given an opportunity of the witness before he answers to enter an objection if the government has one, Your Honor.
 THE COURT:  Very well. Proceed.
 Q  (By Mr. Lowe) The question:  "Norman Charles was around, Mike Anderson was around at that time?"
 Answer:  --
 MR. HULTMAN:  Well, now object, Your Honor. Clearly because there is no showing of any time as to whether we're talking about the 25th of June --
 MR. LOWE:  That's exactly --
 MR. HULTMAN:  -- 26th of June or today, last night in this courtroom.
 MR. LOWE:  Mr. Hultman, let me finish. I'll back up one question so I can give the time, Your Honor.
 Q  (By Mr. Lowe) Backing up one line, one question:  "Well, either tell me when you woke up or how many hours you were up by the time you first heard the shooting." Answer from Mr. Wilford Draper Draper:  "I woke up at about 8:00 o'clock, something like that." Question:  "Would you say it was about four hours later when the shooting started?" Answer:  "Something like that." Question:  "Now Norman Charles was around, Mike Anderson was around at that time?" Answer:  "Yes." Question "What happened then once you became aware of the shooting that was going on?"
 MR. HULTMAN:  Now, Your Honor, I do enter the objection clearly. This witness has clearly testified in response to Counsel a few minutes ago exactly the same as he did evidently in that interview. He's used almost the same word, "Around." Now Counsel is attempting again to put people at specific times and places to which this witness has now answered not only last night but again now in the courtroom at least twice and I enter an objection at this time, Your Honor, that it's repetitious.
 MR. LOWE:  I accept Mr. Hultman's statement that that's what the testimony was before. I withdraw the question in view of that and the record will reflect that.
 Q  (By Mr. Lowe) Mr. Draper, when you saw Mike Anderson returning up towards the Jumping Bull's, let me ask you first, did he have a weapon with him? This is after the shots now.
 A  Yes.
 Q  When did you next see him come back?
 A  Till the shooting stopped. It was quite awhile when I saw {1134} him again.
 Q  Now when the shooting took place, I believe you said you ran down into a ravine generally to the southeast of the tent area, am I correct about that?
 A  Yes.
 Q  And did you stay there until -- let me ask you, how long did you stay there?
 A  Until the shooting stopped.
 Q  Till the shooting had stopped. Then what did you do?
 A  Came walking back towards the camp.
 Q  Did you get through the tent area?
 A  Yes.
 Q  And was Mr. Peltier and other people already there?
 A  Yes.
 Q  During the time that the group was preparing for the escape trip, did there come a time when the group stopped a prayed?
 A  I don't recall.
 Q  You don't know or you just don't recall?
 A  Don't know.
 Q  During this time, that is, during the time you all were in the tent area after the shooting had stopped, what can you tell us about the various weapons that Mr. Peltier had in his possession from time to time? Did he only have one or change a lot of weapons around or just what?
{1135}
 A  He had an AR 15 and, I don't recall the other.
 Q  Would it be fair for me to say he kept putting one weapon down and picking one up and putting one down and picking one up and just handling a whole lot of different weapons?
 A  Yes.
 Q  Did you see or have any way of knowing what weapon he had prior to your coming back up to the tent area?
 A  No.
 Q  Can you even say whether he had a handgun or rifle?
 A  Yeah. He had a rifle.
 Q  If you could see.
 You didn't see it with him, did you, prior to your coming back to the tent area?
 A  I couldn't see when I was coming back, but when I got back to the camp he had one in his hand.
 Q  Do you know whether he had just picked that up a minute or two before you had just come up to camp or whether he had it for an hour?
 A  I don't know.
 Q  Possibly he might have picked it up just before you got to the camp in preparation for loading, isn't that it?
 A  Yes.
 Q  Would it be fair to say you just have no way of knowing what weapon he had prior to your coming back up to the tent area?
 A  Yes.
{1136}
 Q  Now you mentioned something and I didn't hear vou and I would ask you to clarify for me. I thought you said there were 302 handguns, or three or two handguns. Do you remember what you said about that?
 A  Yes.
 Q  What did you say?
 A  I saw three or two handguns there.
 Q  Three or two?
 A  Yes.
 Q  Do you have any way of knowing who had the handguns or where they came from prior to your coming back from the tent?
 A  No.
 Q  Did different people handle those handguns at different times?
 A  Yes.
 Q  And is that true during the time of the escape, the three or four days that different people handled them at different times?
 A  Yes.
 Q  Is that also true for various rifles and shotguns and so forth?
 A  Yes.
 Q  Is that also true and is that consistent with the practice with regard to weapons in the tent city prior to this incident, {1137} that they were sort of community weapons?
 A  Yes.
 Q  And different people would use different weapons on different days?
 A  Yes.
 Q  I show you Government Exhibit 37A and I ask you if you had ever seen that weapon in the camp area prior to the incident in question?
 A  I've seen this.
 Q  It's a rather unusal weapon, is it?
 A  Yes.
 Q  Do you know what the name of the weapon is?
 A  Commando Mark III.
 Q  Was that red ribbon on it when you saw it in the tent area?
 A  Yes.
 Q  Was the stock sawed off short the way it is there?
 A  Yes.
 Q  Was the white sawtoothed design on the butt?
 A  Yes.
 Q  Did you ever see any other weapon that looked like that or is that a fairly unique weapon? I'm talking about now all these red ribbons and white sawtooths?
 A  No. There's no weapon like that design.
 Q  Did you see that weapon when you were in the tent city {1138} getting ready to go on the escape route?
 A  Yes. I've seen it around.
 Q  Who was carrying it if anybody during the escape?
 A  Dino Butler.
 Q  Did you see it with him during the three or four days that you were escaping?
 A  I don't think so.
 Q  You don't think so.
 I call your attention to an occasion last summer when you testified under oath. I'm referring to a transcript proceedings on page 921. That's the beginning point.
 MR. HULTMAN:  Your Honor, might we approach the bench, please.
 THE COURT:  Yes.
 (Whereupon, the following proceedings were had at the bench:)
 MR. HULTMAN:  Your Honor, this is, I'm going to object to anything further in this area because this is an attempt on the part of Counsel, at the last trial he did what he's now doing and then specifically told the witness that the weapon in front of him right now was a weapon different from, the same style, make and so forth but different because it had some red ribbons on it from the weapon that Dino Butler carried out. Now Counsel told the witness this in the course of the trial and that witness now knows it. It is a fact, {1138} no question about it. He has answered truthfully on the stand what is the fact and Counsel knows better than anybody as what are the facts and now I'm going to object because it's clearly an attempt on the part of Counsel now to, after he constructed the witness last time to now turn around and try and use a tactic which will attempt to get this witness to say something different than what the truth is and what Counsel knows the truth is and what he himself brought out the truth with this witness at the last trial. I'm going to object. The questions have been asked, they have been honestly answered and they have been honestly answered pursuant to what this Counsel on cross-examination did with the witness last time. That's the reason I have asked to come to the bar so that the Court would know the reason why Counsel for the government is now going to object.
 If we get into a trick of some kind here to now trying to trick this witness into saying something, that he had a misapprehension about before, he had an incorrection, that correction was pointed out by Counsel on cross-examination and now the witness knows what the true facts really are and I'm going to object for this reason.
 It's an attempt on the part of Counsel now to confuse this witness as to a fact the witness now knows.
 MR. LOWE:  Well, to begin with, Mr. Hultman, grossly {1140} misstates the record from last year. We had the transcript. I would invite Your Honor to look at it if you choose. I made no misleading statements last summer. This witness testified --
 MR. HULTMAN:  I didn't say, John, you made a misleading statement last summer. Didn't say that.
 MR. LOWE:  Let me -- I thought that's what you were talking about.
 MR. HULTMAM:  Listen.
 MR. LOWE:  There was testimony on direct by this witness identifying this weapon specifically. It was put in front of him as it is now. He testified on cross-examination that Mr. Butler took this weapon with him on the escape march and saw this particular weapon, the one in front of him then and in front of him now with the red streamer and white sawtooth. It's a unique weapon, no duplicates to that weapon. He testified virogously that over three or four days he saw Butler with it every single day. At the end of that having let him make his erroneous testimony on the record, I pointed out with stipulation of government's counsel that weapon was found by the FBI in the tent area on June 26th or 27th, I don't remember which it was, and in fact one of the FBI photo books has a picture of that weapon lying on the ground where the FBI found it. I told Mr. Draper that it was impossible for him to have seen that weapon for {1141} four or five days and didn't that at least cause him to doubt his own testimony as to whether it was; he said "no."
 I think it's perfectly proper for me to show that he has testified vigorously that he saw something that was impossible that he had seen in order to call it to the jury's attention the fact on at leastone occasion under sworn testimony this witness so testified in a matter that was clearly erroneus, either wilfully or just by mistake, so that the jury can use that to gauge this witness' credibility. The recor1 is quite clear. The manner in which I'm going about it is quite proper. I'm simply going to read in his testimony from last summer. Your Honor can hear the testimony. It was clear and unambiguous. I think that's a proper way to impeach this witness as to his recollection.
 MR. HULTMAN:  Your Honor, the facts are as Counsel well knows because the government, this information was given to Counsel and it wasn't any surprise. The goverment, that there was another weapon exactly like this in shape, in everything, but for the fact whether or not there was any red ribbons around it. This witness has testified then, testified again this time that he saw the defendant with a weapon of this kind, general description. That's what the direct examination is.
 In the last trial, as counsel has indicated, that was the sequence of events. There is no question that was the {1142} sequence of events. Counsel told him at the end of that testimony that Mr. Draper, this cannot be the weapon for the reasons you have indicated here and so now this witness knows that fact and all I'm saying to Your Honor is that I don't want Counsel, I have no objection to him doing the things that he's indicated but I do not want him placinp this witness in a position where he now knows that he was mistaken, to be placed in a position where Counse1 is eliciting now that he's going to lie again when he knows it's a fact.
 MR. LOWE:  That's not the point. Your Honor knows that. I'm trying to get him to acknowledge his testimony from last year. I can read it out of the transcript. I told him I'll read it to him.
 MR. HULTMAN:  Now I think it's improper cross, Your Honor, for this reason:  I think knowing what the record shows last time, this witness, knowing, I think he has a right to be given the opportunity to explain or to purge the actual facts on the basis you now know them, Counsel, and see how he knows them.
 MR. LOWE:  He has that opportunity.
 THE COURT:  What are you proposing now to ask him?
 MR. LOWE:  I'm proposing to read him his testimony from last year in which he dug his heels in and absolutely insisted this weapon was with Butler, this particular weapon, not in general terms, this weapon with the red ribbon and white {1142} saw. He dug is heels in, Judge, in ways you can hear when I read it, very specifically and did not change that testimony even in the face of the fact that the government stipulated that it was impossible he was seeing this weapon along the escape route because it was there, it was in the possession of the FBI. That goes directly to this witness' credibility.
 MR. HULTMAN:  Let me ask you one question, John:  if you do that, when you finish will you ask him one simple question and t'nat is do you know now that you were mistaken?
 MR. LOWE:  I'm willing to stipulate he knows now he was mistaken. I'll ask him that, certainly. I don't mind that. I think it's self-evident. I have no objection to doing that. I don't think I have to do it. That's all I want to do and that's --
 THE COURT:  Have you gentlemen resolved it?
 MR. HULTMAN:  I think we have. On the grounds it be the same questions as last time.
 MR. LOWE:  I'm going to read it.
 MR. HULTMAN:  I don't want to have to come back and ask him the question and object if I ask for a voir dire to clear up that given point.
 MR. LOWE:  I'm going to read him the testimony out of the transcript.
 MR. HULTMAN:  You're going to ask him at the end, do {1144} you now now you're mistaken as to that time?
 MR. LOWE:  Yes.
 MR. HULTMAN:  Will you ask him the auestion whether or not he saw another weapon?
 MR. LOWE:  Let me make the record clear. I showed him, I frankly thought he could confuse this weapon with another weapon that was not introduced by the government but was shown to us during the discovery phase last year.
 MR. HULTMAN:  That's right.
 MR. LOWE:  Which does not have the sawed of butt, does not have a red ribbon, does not have a white sawtooth. In order to be fair to the witness, I showed him a picture we had taken or that weapon during discovery and he denied it was that weapon and insisted it was this weapon.
 MR. HULTMAN:  If you saw the picture, John, you and I both would have to admit it would be impossible if I even really knew that weapon.
 MR. LOWE:  It was a good glossy black and white close up picture of the weapon. This witness is perfectly capable of testifying for himself. He specifically said it was that weapon.
 MR. HULTMAN:  I'm willing to proceed.
 THE COURT:  Very well.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:  )
{1145}
 Q  (By Mr. Lowe) I will read you a portion of the transcript of previous proceedings where you testified under oath, Mr. Draper, beginning at page 921 to see if I can refresh your, either refresh your recollection or in order to lay the foundation for a question to you.
 Beginning at line 22. "Dino Butler was carrying," and this is talking about on the escape route, "Dino Butler was carrying a Comando Mark 3 automatic rifle."
 Turning over to page 928, continuing. "By Mr. Sikma:  Question:  I show you what is marked as Government Exhibit 37-A and ask you whether or not you can identify that document, Government Exhibit 37-A?
 "Answer:  It is a semiautomatic rifle weapon called a Commando Mark 3."
 Then down at line 15, "After the shooting Dino Butler carried it."
 "Question:  Where did he carry it?"
 "Answer:  To Bear Runner's."
 "Question:  How did you identify this particular firearm?"
 "Answer:  Sawed off stock and little carving right there."
 All right. Now, on cross-examination, page 986, "Question:  By Mr. Lowe:  I believe I am correct that Government Exhibit 37-A you identified as being rather unique because of the {1146} sawed-off butt and the sawtooth emblem on the stock and the red ribbons as being -- "
 MR. HULTMAN:  And there, Your Honor, I enter an objection because that I do not recall from the earlier statement by the witness that there were any red ribbons in the testimony that he earlier read.
 MR. LOWE:  I don't understand this, Judge. I'm reading the testimony sworn by this witness last summer. That's what I'm trying to do, and it's what this witness said, and I'm, I'm aghast. I can't answer.
 MR. HULTMAN:  Well, counsel, what I'm just trying to do, would you go back to what you just got through reading as to what it was he testified to as to how he recognized the weapon, if there are any red ribbons there.
 MR. LOWE:  That's what I'm reading.
 MR. HULTMAN:  I'm not indidcating now, I'm asking you to go back to the material that you just read a moment ago when he first gave his description. This is your description you are reading now.
 MR. LOWE:  And his response that it's, yes, it's correct, and that's just evidence on direct examination.
 MR. HULTMAN:  Might we approach the bench, Your Honor?
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
{1147}
 MR. LOWE:  He was shown the weapon and in his presence while he was looking at it.
 MR. HULTMAN:  Would you keep it down just a little bit.
 MR. LOWE:  Trying to find it here, page 928.
 MR. HULTMAN:  Okay.
 MR. LOWE:  I think the question you are referring to is line 18.
 MR. HULTMAN:  Okay. Line 18, all right. The answer that this man gave, Your Honor, which was the record in that trial was "sawed-off stock and the little --
 THE COURT:  Excuse me. What was the question?
 MR. HULTMAN:  The question was, "How did you identify the particular weapon? This is page 928. The response was on the official record, "sawed-off stock and the little carve right there period," end of response, end of discussion concerning that particular identification.
 MR. LOWE:  Not true, not true. Just end of direct discussion, not cross-examination.
 MR. HULTMAN:  Wait, John, until I get done. Now, let is go to the question which you asked him. Give me the page.
 MR. LOWE:  986.
 MR. HULTMAN:  All right, all right. Now, this is, now this is the question that counsel, and this is why I continually object, Your Honor, of misstatements of the record. {1148} And now here again is a misstatement of the record in the questlon by counsel. You just heard the description that had been given in the record. Now, counsel says, "Question:  I believe I am correct that Government Exhibit 37-A you identified as being rathher unique because of the sawed-offf butt and the sawtooth emblem and the red ribbons."
 That is a misstatement of the record.
 MR. LOWE:  Am I correct in that answer-question? How is that incorrect if he says that it's true?
 THE COURT:  The objcction is, as I understand it, apparently it goes to the fact that Mr. Butler apparently did have a weapon, similar weapon on the trail.
 MR. HULTMAN:  That is correct, Your Honor.
 MR. LOWE:  There's no testimony of that, Judge, no testimony whatsoever.
 MR. HULTMAN:  I'll voir dire right now and we'll establish that fact; and there were not any red ribbons.
 MR. LOWE:  All I'm trying to do is read the record, Judge, from last summer and that's what you told me I could do.
 MR. HULTMAN:  The record is misleading.
 MR. LOWE:  You can correct it on redirect if you think it's misleading.
 THE COURT:  He's objecting to the fact that no mention was made of the red ribbons until you mentioned it, until you {1149} included the red ribbon in your question.
 MR. LOWE:  But, Judge, the witness specifically in several instances with the weapon in front of him said that that was part of the weapon that he identified. Now, that's the cross-examination, just as proper evidence, and it's just as of the record as direct is.
 MR. HULTMAN:  Your Honor, if I would have the opportunity to interpose just one or two questions on voir dire I would then have no objection to any questions.
 MR. LOWE:  This is not a voir dire question, this is for redirect. I'm doing proper cross-examination, I'm reading correctly here. If Mr. Hultman thinks I'm misreading this --
 MR. HULTMAN:  Not misreading, misstating the record.
 MR. LOWE:  I'm not misstating the record. How can I misstate when I'm reading it.
 THE COURT:  The problem I think is it would have been an objection at the time.
 MR. HULTMAN:  That is correct.
 THE COURT:  It would have been a sustainable objection at the time it was made.
 Now, counsel apparently included something into the question which the witness had not previously testified to, and then the witness gave an affirmative answer. I don't know how that can be corrected at this time.
{1150}
 MR. LOWE:  May I just offer some fact for you, Judge, I that I think you did not, either didn't pick up when we were reading because Mr. Hultman had objected. But Mr. Hultman is overlooking the fact that Mr. Sikma held up that very weapon, Exhibit 37-A and said, "Who had this weapon and where did you see it?"
 And by George if I can't ask him qestions about that weapon that he's held up in front of him and the red ribbon was on it, that makes it a completely different story, Judge, even accepting your postulation that it was acceptable. It was not, when he held up the weapon having the red ribbons on it.
 Mr. Sikma is the one that asked him about the weapon. I didn't raise that for the first time, and it had the red ribbons on it. And he said that is the weapon.
 MR. HULTMAN:  All right. John, am I clear, you're going to ask the same question?
 MR. LOWE:  I'm going to read him right out of the record.
 MR. HULTMAN:  And that's going to be the end of it?
 MR. LOWE:  I'm going to ask any proper questions.
 THE COURT:  Proceed.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 Q  (By Mr. Lowe) Continuing, Mr. Draper, where I was a moment {1151} ago. Page 986 line 10, "Question:  I believe I am correct that Government Exhibit 37-A you identified as being rather unique because of the sawed-off butt and the sawtooth emblem on the stock and the red ribbons as being the Commando Mark 3 which Dino Butler took away from the tent area when you went to Bear Runner's. Am I correct in that?"
 "Answer:  Yes."
 "Question:  And you remember him carryingr that to Oscar Bear Runner's and seeing it there also, don't you?"
 "Answer:  Right."
 "Question:  This is pretty unique, isn't it? There was no other gun that had red ribbons on it and everything was there?"
 "Answer:  No." You don't deny that you gave that testimony last summer, do you?
 A  No.
 Q  Do you now know that that testimony was factually in error?
 A  Yes.
 MR. LOWE:  May I approach the witness, please, Your Honor.
 THE COURT:  You may.
 Q  (By Mr. Lowe) I show you Government Exhibit 55, page 12, picture C, one of the pictures taken by the FBI agents in the tent city area on June 26th or 27th, and this is the picture {1152} here, and I ask you if you can state what object is prominently located in the foreground of that picture?
 A  Same gun as this one right here (indicating).
 Q  This one right here, isn't it?
 A  Yes. And when I finished with the testimony I just read to you last summer I asked you, did I not, as to whether this picture looked like that gun?
 A  Yes, you did.
 Q  Page 987,
 "Question:  Now, I hand you Government Exhibit 5524." I think the number may have been different last summer because it was that exhibit. "Ask if you will look at it and tell me whether that isn't a picture of the Commando Mark 3 which I just showed you if you can tell. Take your time and look at it. I don't know if you have seen that picture before or not."
 "Answer:  This is the same gun."
 "Question:  That is the same gun. Now would it trouble you any, Mr. Draper, if I told you that the Government has represented to us that this picture was taken by FBI Special Agent Mike Dyer who is from Chicago on June 27, 1975 at the crime scene in the tent area as they went through and made a crime scene search, which is the day after you said that Dino Butler carried from the tent area to Oscar Bear Runner's. Would that trouble you?"
{1152A}
 "Answer:  No."
 "Question:  It wouldn't. Could you explain to the jury how this weapon that is on the board would have been in the tent area on the day after the shooting and could have been found there by an FBI agent if Dino Butler carried it away and took it to Oscar Bear Runner's?"
 "Answer:  I saw him carry it to Bear Runner's."
 "Question:  So you stick by your guns even though the FBI has a picture here that they took the next day in the tent area, and you say that is definitely the gun? You just stick by your guns, that you are positive that you saw Dino Butler carry it to Bear Runner's, and saw it at Bear Runner's?"
 "Answer:  Right."
 MR. HULTMAN:  Could I ask counsel whether or not there is a question to be asked?
 MR. LOWE:  I was just reading the last portion of this, and I'm looking for a moment, if you don't mind for a moment.
 Q  (By Mr. Lowe) Do you remember that testimony, that interchange between us?
 A  Yes.
 Q  All right. Now, you described, Mr. Draper, a time on the march after you had left the area when you and a number of the others were walking somewhere. I believe you said on the way to Noah Wounded's. Am I correct on that?
{1152B}
 A  Yes.
 Q  Was it dark?
 A  Yes.
 Q  Do you know precisely where everybody was at that time, or just generally that you were all in a group?
 A  We were generally all in a group.
 Q  And you mentioned that something was said to the effect about the car and shooting the agents, and I ask you now when you can tell first of all who the statement was made by without guessing. Did you actually know who made the statement?
 A  No. Could you recognize the voice or were you just guessing when you said it was Leonard Peltier?
 A  I was guessing.
 Q  And can you tell who the statement was made to or would you just be guessing on that?
 A  Guessing.
 Q  Could you tell the full content of the words that you heard spoken, or were you just taking what you remembered?
 A  I was just taking what I remembered.
 MR. LOWE:  Excuse me, Your Honor.
 MR. TAIKEFF:  May we have a moment to confer, Your Honor?
 THE COURT:  The court is in recess until 3:35.
{1153}
 (Recess taken.)
 THE COURT:  The jury may be brought in.
 (Whereupon, at 3:36 o'clock, p.m., the jury returned to the courtroom; and the following further proceedings were had:)
 MR. TAIKEFF:  May I approach with Mr. Hultman, your Honor?
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 MR. TAIKEFF:  Your Honor, I had an FBI report marked Defendant's Exhibit 87 for identification. In looking at it just now I realized that I had stapled to the last page of that report a one page report which is not part of it; and I wanted to show this to Mr. Hultman and record this on the record so that there would be problem about it. He can ascertain for himself that the last page of Defendant's Exhibit 87 is in fact not the last page of the report in question, but an extra piece of paper concerning the same person that accidentally got attached.
 MR. HULTMAN:  O.k. let me take a look. (Examining.)
 Elliot, let me ask you this --
 MR. TAIKEFF:  (Interrupting) It is an entirely different date.
 MR. HULTMAN:  I am not trying to probe or anything.
{1154}
 Do you want it to remain? Is there a reason that you want it to remain as a part of it?
 MR. TAIKEFF:  No. I want to remove it. I didn't want to do so without notifying you and the Court since it now has the official status of having been marked.
 MR. HULTMAN:  Because it is another 302.
 MR. TAIKEFF:  It should not have been attached in the first place.
 MR. HULTMAN:  My only question is this:  As I recall, it was shown to the witness, was it not?
 MR. TAIKEFF:  Only to ask him whether or not his report of June 26th was incorporated in the 302 verbatim; and as you will see, the page before is the end of that report.
 MR. HULTMAN:  O.k. Let me see just a second. I don't even recognize what they have got here (examining).
 THE COURT:  That is Ecoffey?
 MR. TAIKEFF:  Yes, your Honor. In case you want to, we can mark that last piece of paper 87-A for identification just in case you ever want to know what piece of paper that was.
 MR. HULTMLAN:  If you represent to me, and I know you are honestly and fairly representing to me, that it has no particular significance, accidentally it was attached?
 MR. TAIKEFF:  Yes.
{1155}
 MR. HULTMAN:  The Government would agree it would be removed. It is a separate -- this event doesn't have anything to do with it?
 MR. TAIKEFF:  That's correct, nothing at all. It is just mechanically a mistake was made in stapling all of those pages together.
 MR. HULTMAN:  I just noticed, looking at a page in a transcript, I had two pages the same and the next page was not there.
 THE COURT:  Why don't you just remove it?
 MR. HULTMAN:  Remove it now, yes.
 MR. TAIKEFF:  Exhibit 87 for identification now consists of six pages, all of which are numbered except the first page, which is dated 7-9-75.
 MR. HULTMAN:  Very good.
 MR. TAIKEFF:  Thank you, your Honor.
 THE COURT:  Very well.
 (Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
 THE COURT:  You may proceed.
 Q  (By Mr. Lowe) Mr. Draper, do you know what we mean when we talk about immunity from prosecution?
 A  No.
 Q  All right. Let me ask you a series of questions then, and I will try not to use that term.
{1156}
 You testified that when you were first picked up and interviewed by agents, that you had a fear of being prosecuted and you testified that the agents told you that they would indict you if you didn't cooperate.
 Now, I want to shift the time to later when you were at the Grand Jury or as to any other proceedings at which you testified under oath since then.
 Now, I will ask you whether you continued to have concern that you yourself would not actually be prosecuted for these murders, would that be fair?
 A  Yes.
 Q  And would it be fair to say that you continued to be worried that your own testimony might put you in a position of being prosecuted, would that be fair?
 A  Yes.
 Q  Did there come a time when the Government agreed not to prosecute you if you would testify?
 A  Yes.
 Q  Were you given a promise that that wouldn't take place as long as you testified?
 A  I don't know whether it was a promise or not, but they said that you wouldn't be prosecuted, or you wouldn't be indicted if you testify.
 Q  And then did you testify?
 A  Yes.
{1157}
 Q  And you are testifying here today.
 Do you now understand, as a result of having testified, that the Government will keep its word and will not prosecute you or indict you for these murders?
 A  Yes.
 Q  On January 13, 1976, at Sioux Falls, South Dakota, did you appear before the Grand Jury?
 A  Yes.
 Q  Did you testify there under oath?
 A  Yes.
 Q  Would I be correct in saying that some of the testimony you gave was false?
 A  Yes.
 MR. LOWE:  No further questions.
 REDIRECT EXAMINATION
By MR. HULTMAN:
 Q  Mr. Draper, I just have two questions, one with reference to the discussion concerning a weapon a few moments ago, is it fair for me to conclude that you were honestly mistaken as to what your testimony was earlier?
 MR. LOWE:  Your Honor, that's so leading, I object.
 THE COURT:  Overruled.
 A  Yes.
 Q  (By Mr. Hultman) Do you know as a fact that there were two weapons of this kind in the area?
{1158}
 MR. LOWE:  Objection, your Honor. There is no factual basis for that. The witness has testified that this weapon was unique in all the world, not two of a kind.
 MR. HULTMAN:  This counsel in the record pointed out in the record at the last trial and again today that there was a second weapon.
 THE COURT:  I am going to sustain the objection on the basis that it is a leading question.
 MR. LOWE:  Thank you, your Honor.
 MR. HULTMAN:  I just have one further question.
 Q  (By Mr. Hultman) Have the answers which you have given in this courtroom today, regardless of how far in time it may be from the event, how many people may have talked to you in between and including at least two consenting interviews with the defense counsel where you have met with the defense counsel on two occasions?
 A  Yes.
 Q  Have you told the truth in the courtroom today as you very best can remember the events at the time they took place?
 A  Yes.
 MR. HULTMAN:  I have no further questions.
 RECROSS EXAMINATION
By MR. LOWE:
 Q  Mr. Draper, as to the question that Mr. Hultman, just asked you about whether you have told the truth the best you can, is {1159} that true as to your cross examination answers as well as your direct examination answers?
 A  Yes.
 MR. LOWE:  No further questions.
 THE COURT:  You may step down.
 (Witness excused.)