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

BENCH PROCEEDINGS..NO JURY PRESENT
ADMISSABILITY OF MILWAUKEE INCIDENT

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 MONDAY MORNING SESSION
 March 28, 1977
 Whereupon, the following proceedings were had and entered of record on Monday Morning, March 28, 1977 at 9:00 O'clock, A.M. without the jury being present and the defendant being present in person:
 MR. TAIKEFF:  Good morning, Your Honor.
 THE COURT:  Good morning.
 MR. TAIKEFF:  May I be heard, Your Honor?
 THE COURT:  You may.
 MR. TAIKEFF:  Your Honor, sometime last week arrangements were made between myself and Special Agent Biner for the production of the rifle with the telescopic sight that was supposedly used to identify Mr. Peltier from the distance of approximately a half a mile. He brought that telescopic sight to the office and we've made a tentative sighting out of the window of the courthouse. And then made no completely definite arrangements, but nevertheless general understanding was reached that some morning he would send that rifle and scope along with us to a place where we had measured off a half a mile so that we could conduct certain sighting tests.
 I was informed on Friday I believe by Mr. Ellison that those arrangements were no longer to be made without the direction of the Court. So at this time if in fact that is the situation I would ask that Your Honor direct the Government to {1691} produce that rifle with scope because we have found a place where we have measured a half a mile with a clear view and we'd like to conduct a test there as soon as possible, sighting test.
 MR. HULTMAN:  Counsel, if you'll just indicate now when it is that you want to do it, I'll make sure somebody's available in order to accomplish it. I just want to make sure I got somebody available. That's all.
 MR. TAIKEFF:  At 12:30 this afternoon would be fine, Your Honor.
 MR. HULTMAN:  I assume we can do that at 12:30, Your Honor.
 THE COURT:  Well, then it's understood that this is a matter then that can be worked out with counsel?
 MR. HULTMAN:  Right.
 THE COURT:  So that there's no reason for the Court to act on it?
 MR. HULTMAN:  Right.
 MR. TAIKEFF:  Your Honor, then apparently I get the sense that there may have been some misunderstanding about whether the line of communication directly with Mr. Hultman were still open. I'll defer. I had a few other matters here on my list, I'll defer until Mr. Hultman and I have a chance to talk during the recess. And if we can work out the other things which I think have to be done it won't be necessary to involve {1692} the Court.
 MR. HULTMAN:  The only thing I want to make clear on the record is that I'm not going to go back and redo discovery that people already had the opportunity to make. That's my only point. If it's something within my capability right now, like with the scope, I'm willing to do it. But I'm not going to go back through, and I want it made very clear on the record, and go search documents that defendant has had in their possession from the very beginning.
 And I just make that as a general statement because I think that time is long gone and it's within your own capability. But let's talk about whatever the specifics are. Go from there.
 MR. TAIKEFF:  All right. Thank you, Your Honor.
 THE COURT:  Is that all?
 MR. TAIKEFF:  Yes, sir.
 MR. CROOKS:  Your Honor, there is one other matter which should be brought up now. Our next witness to be called will be Mr. Ronald Hlvinka, a police officer in Milwaukee, Wisconsin, who will introduce and give testimony concerning an incident in which he was involved in in which charges arose against Mr. Peltier charging him with attempted murder. And those charges being outstanding at the time of the incident of June 26, 1975.
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 Counsel has asked that we give them notice of the, or the Court notice prior to calling Mr. Hlvinka so that they can complete their record with regard to this matter. The matter has already been briefed by both sides extensively and I merely bring it to the Court's attention at this time. So if counsel wishes to make further comments out of the hearing of the jury they can, and then the United States will respond if there is a further record to be made by the defendant.
 But it is our intention to call as our first witness Mr. Hlvinka.
 THE COURT:  Would you state for the record specifically what evidence you intend to elicit from this witness.
 MR. CROOKS:  Your Honor, basically the United States intends to elicit from Mr. Hlvinka and introduce there him copies of the Wisconsin warrant and the Federal UFAT warrant, unlawful flight warrant, as I believe the Court is fairly well aware from the briefs. Basically what happened in November of 1972 Mr. Hlvinka, an off-duty Milwaukee policeman, was assaulted y Mr. Peltier with a loaded pistol. Numerous appearances were had in Milwaukee. The matter was called for trial, Mr. Peltier jumped bond. Federal charges were then instituted for unlawful light to avoid prosecution.
 All of these charges, both of these charges, were outstanding on June 26, 1975. Mr. Peltier was wanted therefore for a fugitive, or as a fugitive on at least two felonies at {1694} time. That principally will be offered to show the possible motive for the defendant reacting in the way he did when confronted by Special Agents Coler and Williams. We think it's vitally important to show the fugitive status for that purpose, and we think on the face of it the fact that he is in a fugitive status at the time that the agents come down looking for Jimmy Eagle is explanation of his actions, and it's further corroborated by testimony which we will introduce through the Canadian officials wherein a statement was made to one of the Royal Canadian Mounted Policeman that Mr. Peltier believed that he was the one that they were really after on June 26, 1975.
 So it is tied together again by that matter. We further feel that we're entitled to show the circumstances of this incident to show a like and similar crime. Basically the evidence through Mr. Hlvinka will show an unprovoked attack upon an off-duty policeman. He will indicate that he did not know Mr. Peltier, had never seen him before, but he did recognize one of his companions as being an individual who he had seen in court associated with the case that he had been investigating, not as a defendant I believe but he had seen him there as a friend of an individual that he had arrested or was investigating.
 We we think that in addition to showing the motive simply through the warrants themselves we are entitled to show that this was an unprovoked attack similar to the unprovoked {1695} attack which we have here. In other words, a deadly reaction to police officers. And this again goes to negative of the points which had been made again and again and again in this trial that there was some sort of a tortured self-defense; and also that it may have been some mistake.
 We think that it goes directly to these two points that the very nature of the attack against Mr. Hlvinka is relevant to demonstrate and to negative the defense which have been tentatively offered and counsel have indicated an opening statement will be offered in this case.
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 MR. LOWE:  Your Honor, I don't know whether your Honor is entertaining full argument now. I think you were asking merely for an idea of what they intend to prove.
 We vigorously oppose it. We filed a memorandum. We feel there ought to be a hearing out of the presence of the jury, I mean, at some point before the jury is brought in so we can have available at counsel table our papers.
 We very strongly oppose this. We think we have all the law on our side, and we think the facts -- the Government cannot even prove what they are stating they want to prove with regard to this. I will say no more until your Honor sets up what procedure you want to follow.
 THE COURT:  Is this the next witness that you intend to call?
 MR. CROOKS:  Yes, your Honor, this would be the very next witness.
 THE COURT:  It seems to me it has to be resolved right now.
 MR. LOWE:  I would agree.
 MR. CROOKS:  That's why we brought it up right now, so we would not be calling the man in in the presence of the jury, if the Court deems otherwise.
 MR. LOWE:  Might I have 10 seconds to go into my office and get my file? I did not know they were going to call him this morning. I have some files sitting there. {1697} I will be right back.
 THE COURT:  You may.
 (Mr. Lowe leaves the courtroom and returns.)
 THE COURT:  Before you proceed, Mr. Lowe, I would ask Mr. Crooks to state specifically the Rule that you feel under which this evidence can be admitted or should be admitted.
 MR. CROOKS:  Well, your Honor, the specific Rule would be 404(b), Crimes, Wrongs and Other Acts; and basically, as I said before, the principal thrust of our argument is simply the fact that these warrants are outstanding and were outstanding. He was a fugitive at the officers arrived -- it is vitally important to go to establish his state of mind, motive, intent, things of that nature, all of which are included under Rule 404(b); and that is the principal thrust of our argument.
 The secondary thrust is that the very similarity of the acts is relevant to fill further the state of mind; but certainly the fact that the warrants were outstanding, the warrants were in full force and effect -- the Defendant obviously knew about it because he jumped bond on it -- is vitally important to show the state of mind of this Defendant when confronted by police officers in the immediate proximity; and the Court will recall the testimony was from Mr. Anderson that the red van, red and white van {1698} was being chased on the Jumping Bull property; and the evidence was that Mr. Peltier was driving it, which again shows, I think, it very clearly, his state of mind, that he would react with deadly force to avoid apprehension for the outstanding felony warrants.
 THE COURT:  Mr. Lowe.
 MR. LOWE:  Your Honor, we take as a starting point, Rule 404(b) of the Federal Rules of Evidence which is the only justification, if there be any at all, for such evidence to come in.
 404(b) says:  Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person, in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
 Now, this is a major departure or a major difference between Rule 404(b) and Rule 403. Rule 403 is the balancing test between relevancy on the one hand and the possible prejudice caused by confusion, misleading, or prejudice because of the inflammatory nature of the evidence, the balancing test between probative value and possible prejudice.
 Rule 403 involves evidence which is actually evidence {1699} in the case about the event that is on trial, that is to say, in the case, let's say, of the post-mortem photographs. Those were evidence of things involved in this case in this incident. The only question is whether they are so prejudicially as to require the Court to exercise discretion to exclude them. The presumption in Rule 403 is the general presumption of the Federal Rules of Evidence, that all evidence is competent relating to the case and comes in, generally speaking, unless there is a reason to keep it out, so Rule 403 has a sort of a presumption that the evidence will come in unless the Court in its discretion keeps it out.
 The opposite is true of Rule 404(b). Rule 404(b) concerns evidence which is not a part of the case. It is not around the incident which is involved in the case itself, but is external, extrinsic, collateral evidence of other cases, other issues; and the presumption there is that evidence of other crimes is not admissible unless the Court, in the exercise of discretion, finds that it fits within other purposes for which it may be admissible, so the entire inertia is different.
 In Rule 404(b) the presumption is that it stays out unless the Court lets it in, so the question in Rule 404(b) is whether it fits within the guidelines of allowing it in and whether the prejudice is so light, that is, that the {1700} Court finds that it is not prejudicial to the extent that the Court will allow it in.
 The burden in Rule 403 is on the person who would keep the stuff out because presumptively evidence in the case is admissible so the burden in the case of the post-mortem photographs was on us to persuade you, the Court, that it was prejudicial.
 In Rule 404(b) the other is true. The person wanting to bring it in has the burden of showing that there is no prejudice which outweighs the status quo of the Rule, the momentum of the Rule, which is to keep it out.
 Now, turning for a moment to the facts, I would like to point out a couple of factual issues which are very important. Mr. Crooks has made an advocate statement. I have no doubt that Mr. Crooks in good faith thinks that that's what he would prove by Mr. Hlvinka.
 However, I would point out that this involved an incident that occurred in Milwauke in a restaurant or a bar, and Mr. Hlvinka is going to claim that Mr. Peltier -- and in fact does claim in previous testimony, I believe, in a preliminary hearing, that he didn't know Mr. Peltier. I think he said he had never seen him before. He had no reason to know why Mr. Peltier would accost him. He made, as described by Mr. Hlvinka, as a virtually unprovoked, unexplainable attack. There is no evidence in that {1701} preliminary hearing -- and I vouch to the Court that as far as I know there is no evidence in existence, nor could there be produced here any evidence to show that Mr. Peltier knew or reasonably should have known that Mr. Hlvinka was in fact a police officer. He was in plain clothes. There were no badges, no identifying him by calling him Sergeant Hlvinka or Patrolman Hlvinka, as far as I am aware; and I would challenge the Government to make an offer of proof if they think they know of some.
 There is no evidence Mr. Peltier knew he was a police officer. That would undermine the principal theory of the Government's offering this evidence, and that is to show that Mr. Peltier has made other unprovoked attacks on people he knew were police officers. That is a factual question that is very important.
 Secondly, at this point in this trial there is no evidence that Mr. Peltier knew that Agents Coler or Williams were police officers. There is no evidence at this point that he knew that, and that would be a second reason because they can't even at this point assert, based on the evidence, that Mr. Peltier was making an attack on people that he knew at that time were police officers, so that destroys completely any link or connection to show motive or intent even if that were admissible for that purpose because there is no showing that he knew either {1702} one of them were police officers or that Officer Hlvinka was a police officer.
 Further, I will vouch to the Court that there will be a substantial dispute in fact over what Officer Hlvinka said to him in Milwaukee. This would require in effect a mini-trial within this trial. Your Honor would be conducting an attempted murder trial in Milwaukee within this courtroom with all the plenteous witnesses and evidence in order to determine whether this particular episode would be admissible before the jury.
 Even if your Honor in a hearing outside of the presence of the jury were to rule that a showing of sufficient certainty had been made by the Government, the defense would then be entitled to present the same evidence before the jury, having again a mini-trial, as it were, in front of the jury to dispute the purported explanation of what this event in Milwaukee showed.
 Now, it is clear to us that the Government has a second purpose and they have explained this; and that is to show a reason for flight, that is to show that Mr. Peltier knew that there was a warrant outstanding for him from Milwaukee. We believe that that would not be admissible for that purpose.
 However, to the extent that your Honor would rule that it would be, we would offer to stipulate that at the {1703} time, June 26, when this occurrence that we are dealing with in this courtroom took place, Mr. Peltier had outstanding against him, and knew that he had outstanding against him, a warrant for a serious felony in Wisconsin.
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 And to stipulate that that was not only in existence but Mr. Peltier knew about it. If necessary also to stipulate that he had jumped bond there. We would offer that in the faith of an adverse ruling on the relevancy of that particular element of proof. We would offer to stipulate that.
 Now how is that relevant to the argument I am making now? It is relevant in two ways:  first, we have stated time and again neither party must accept the stipulation from the other side. That is conceded. That's certainly law. However, the case which the government relies on and really the only case which gives them any kind of support for introducing such prejudicial material is the Puff case which is cited by both parties in our respective briefs on this point. The Puff case particularly tries to cite here, is a second circuit case in 1954, had a very significant underpinning as to why the court allowed it and the court stated this at page 175, which is at page 8 of our brief, and I'm quoting:  "Up to this time in the trial there has been no concession by the defense that the defendant at the time of the shooting knew that he was wanted for a felony, and as the judge pointed out, there was no way of bringing it home except to show that by reason of the acts by the defendant he knew and had reason to know he was on July 26, 1952 sought as a fugitive from justice.
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 "It was not until the summation that it was conceded that the defendant entered the hall knowing he was wanted. It is highly likely that without this evidence, the concession would not have been made even then and even then it was not conceded that the defendant was wanted for a serious crime, a fact which would bear heavily on the issue of motive.
 "On the question of whether the deceased was engaged in the performance of his official duties, counsel would have or could have conceded the fact, of course, many concessions could have been made but counsel did not choose to make them. It is urged that trial counsel offer to concede that the deceased was engaged when killed in the performance of his official duties, but the trial records show to the contrary.
 "In the opening statement, the defense did not disclose an inclination to make any factual concession except as might be dictated by trial tactics. The court also observed that at that start of the trial the defendant had made two limited concessions:  one, the deceased at the time he sustained the injuries from which he died was in fact an FBI employee; two, he died as a result of gunshot wounds inflicted upon him.
 "The remarks of the court were followed by no further factual concessions and the defendant rested without {1706} making any."
 In that case the government made an argument and the Court made a finding that there was no other way for the government to get this evidence which was proper before the jury and therefore that gave a justification for letting this highly prejudicial information in before the jury, because one of the problems which has been recognized, as recognized by Winstein On Evidence and other authorities is that the necessity of the government brining it in because they cannot prove this element by any other way as a factor which the court may properly consider in exercising its discretion to allow in otherwise inadmissible evidence.
 Now in this case, that is why it is so significant that in the face of an adverse ruling as to the general relevancy of that Milwaukee incident at all, we are prepared to stipulate or concede that Mr. Peltier on June 26th did not have the existence of an outstanding warrant for a serious felony. That eliminates the entire rationale which Puff used because it is no longer unavailable to the government to prove or introduce to the jury the proof of the knowledge of an outstanding felony warrant to show why he might have acted in a certain way on June 26th. We feel that that is a very significant differential here and that is why in this case, although the government does not need to accept the stipulation, they cannot be heard to complain if they do not {1707} accept that stipulation and the court properly says the general testimony about the event in the bar in Milwaukee is not admissible. And there is no justification for changing that general presumption of inadmissibility for one of these other purposes.
 We believe that the prejudice which will be involved because of having to try a mini-trial, a separate trial within this trial, is just incomparable.
 Wigmore who is the great guru of evidence for all of us from back in our Anglo American juris prudence has stated the general reason why this type of evidence should not be let in when he stated, "The deep tendency of human nature to punish not because our victim is guilty this time but because he is a bad man and may as well be condemned now that he is caught and that is a tendency which cannot fail to operate with any jury in or out of court."
 The point is that if the jury is told in gory detail about an allegation of an event in Milwaukee which is disputed but nonetheless the officer Hlvinka comes in and says, "Mr. Peltier aimed the gun at me, pulled the trigger and it clicked and it didn't go off, then he did it again and said, 'I'm going to kill you,' or words to that effect," that the jury, it's entirely possible and it's entirely too likely that the jury will think he may not have been guilty on June 26th but he was guilty of bad things in general and we might as well convict {1708} him this time and get him off the streets. That's the great danger of introducing other crimes evidence. That is why the Rules are set up in such a way to make it inadmissible unless it is found by the court to be admissible for these other purposes. That's why the Puff decision pointed out, I think it's fair for the court to say the Puff decision would have been the other way had the defense made the concession, had they stipulated the elements that the government is trying to prove. That is why in this case we believe we cannot allow into this case, at least we're willing to make the concessions over objection on general relevancy.
 I would point out that there is a third factor which may not be as important as the others but which is nonetheless a significant question of law involved in the Milwaukee case. The gun that was used by Mr. Peltier allegedly in Milwaukee was functionally inoperative. It had a firing pin that would not function. I think I'm correct in saying it was broken off. But in any event, it would not fire the cartridges and I believe I'm correct, it didn't even make an impression on the cartridges in the gun.
 I point out two things about that:  first of all, the evidence would be that Mr. Peltier knew when he was carrying the gun that it was inoperative and you'd have a serious question of law as to actual impossibility as to whether Mr. Peltier can even be convicted of an attempted murder when he {1709} uses an instrumentality which is incapable of carrying out the act, which he knows is incapable of carrying out the act. That again would have to be tried as a mini-trial in front of this trial in front of the jury in order to reach a fair disposition of this issue.
 If Your Honor allowed it to be taken before the jury, then as a matter of law we would have to object to the introduction of this evidence for all these reasons, and I think I said this, but I would vouch, Your Honor, there would be a dispute factually whether what officer Hlvinka said happened was all that happened or whether it was all that happened.
 We believe the court must exercise its discretion, first must rule it's inadmissible because it is irrelevant generally because this was two and a half years prior to this incident. It is an isolated incident. There are no other incidents, I believe the government will show, prior to June 26th. This is not a series of incidents which is the general way of proving a predisposition, for example, to shoot at police officers, to show at least two or three. This is an isolated incident two and a half years earlier where there is no evidence that he knew he was a police officer at the time. There's no evidence at this point he knew these two men were police officers and so the only real rational basis for admitting it would be on the theory he knew there was a serious {1710} felony outstanding and this somehow made him a more desperate man. We are willing over your adverse ruling on relevancy, if that comes, to concede or stipulate he knew there was an outstanding serious felony warrant for him and, of course, he had jumped bond. The same would be true of the unlawful flight, if that's part of the stipulation.
 For these reasons, Your Honor, we vigorously oppose admitting this and ask Your Honor to make rulings in conformity therewith.
 I would not point out all, I am not going over the whole memorandum on file. I would adopt it by incorporation by referring to it. We believe there are other detailed explanations in our memorandum or brief which the court would want to consider before ruling.
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 MR. CROOKS:  Your Honor, if I might respond very briefly. It seems to me counsel again is doing the same thing that they've done repeatedly throughout this trial. They're offering to stipulate but not stipulating.
 Counsel stands up and says, "We will offer to stipulate if we lose, then we'll offer to stipulate." And I think that's a rather absurd argument. But I think it's also more, even more absurd that counsel would stand up and argue that the fact that this man is wanted on two serious felony warrants when Agents Coler and Williams are down in the area and in the point of, at the point of apprehending him that the fact is not relevant to his state of mind. I can't believe that counsel said that because on the face of it that is extremely relevant to show what his state of mind was when confronted by police officers.
 Also this is not an isolated case. Evidence will come in through the Oregon incident that the exact same thing happened. Again Mr. Peltier was confronted by police officers and he fired at them. We have now three incidents where he's done the same thing on each occasion and it seems to me that that speaks very clearly to his state of mind on June 26, 1975. That what we're talking about here is a man that every time he sees a police officer within his immediate proximity apparently takes a shot at the individual.
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 Now, I won't go into our legal argument. I think that has been completely argued in our briefs. It seems to me that the outstanding, the nature of the outstanding warrants and so forth is vitally important to show the state of mind of this defendant when confronted by Special Agent Williams and Coler; and this again as I said ties up with the statement made by Mr. Peltier when arrested in Canada that he thought that was the reason they were there. He thought they were there to arrest him.
 And so again I think it was something that was on his mind and something that we are entitled to show. And counsel offers to stipulate, and I am not sure that they would offer to stipulate to the extent that the United States would be willing to accept it. Basically what counsel is attempting to do by offering to stipulate is cut down their exposure on things that the United States is entitled to show. These are facts that happened and the United States had not intended to go in at great length in Mr. Hlvinka into all of the details of this crime. But we do think we're entitled to show in addition to that the warrants were outstanding, that it was an unprovoked thing on an off-duty policeman, and the general nature of what happened so that the jury can understand something about this man's state of mind which is the same state of mind found from the evidence thus far on June 26, {1713} 1975.
 THE COURT:  Specifically what are you planning to have this witness testify to relating to the incident?
 MR. CROOKS:  Well, basically, Your Honor, that as I had intended to go into the matter, would be first of all to introduce copies of the warrants themselves which were marked as Exhibit 8. Included within that would be the criminal complaint signed by Mr. Hlvinka which of course does contain a brief description of his version of the incident. The information filed by the county prosecutor attached to that, and I have not yet separated, but would be willing to are the docket entries which showed the failure to appear. We don't have any particular need for those or the bond itself.
 We would assume that Mr. Hlvinka could testify orally that he did jump bond and did not appear. The next item in Exhibit 8 then would be basically the unlawful flight warrant which does have attached to it copies of the same Wisconsin papers which again we would be willing to take off. I have not done it to this date because it's part of the certificate. But I would be certainly willing to take that off because they would be duplicated.
 But in addition to that we would offer to have Officer Hlvinka testify as to the unprovoked nature of the assault; that he was sitting with a friend after he had gotten off duty having a meal at approximately 12:00 o'clock, or {1714} shortly thereafter of that evening and Mr. Peltier -- and have him identify Mr. Peltier as being the man that stated certain words to him. Basically the words "you're not laughing now, are you," and an expletive used there. "And I'm going to kill you." And this happened immediately outside the restaurant.
 He again stated, Mr. Peltier again stated, "I'm going to kill you," pulled the trigger on the revolver which was pointed at his head, or the pistol which was pointed at his head. The weapon misfired. Mr. Hlvinka and his friend jumped him, took the gun away. Found there was a loaded round in the cylinder read to fire. And that would be basically the extent of the testimony.
 And those are I think facts that we're entitled to show for all of the purposes stated earlier.
 MR. LOWE:  May I just say, Mr. Crooks had a specific term which I understand to mean one thing and I may understand to mean another thing. Mr. Crooks, when you say "misfired" you don't mean that the cartridge misfired, you mean the weapon failed to strike the primer; isn't that all?
 MR. CROOKS:  What I mean is that this gun clicked and it didn't go off.
 MR. LOWE:  You are not indicating that the cartridge misfired and it just hit the primer and it didn't fire? There's no evidence of that.
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 MR. CROOKS:  I don't honestly know that, Your Honor. All I know is that the testimony will be from Mr. Hlvinka that the hammer was pulled back, the finger depressed, the hammer went forward and normally Mr. Hlvinka would have been a dead corpse on the sidewalk. I know that that will be his testimony.
 But through the grace of God the thing did not go off and he was apprehended. Later lab examination indicated that the firing pin was defective and that the weapon would not fire. But to say that there was not an attempted murder I think is a little bit absurd. The circumstances will be shown. _
 MR. LOWE:  Well, maybe a little bit absurd, but it's a serious question of law. I only have three points to close my argument, Your Honor. First of all Mr. Crooks supports my argument by the total failure to make any offer of proof. As I stated I don't believe they can make an offer of proof that Mr. Peltier knew this was an off-duty police officer, and that's because they're trying to show some nexus between violence toward Mr. Peltier and violence towards law enforcement officers on another, and it's absolutely necessary as a foundation for that to show that he knew that Mr. Hlvinka was a police officer. Otherwise he might have been a butcher, or a tailor or a who knows what.
 Number two, an absolute foundation even for showing {1716} the warrant outstanding to show that he was somehow motivated to flee because he thought he was about to be apprehended for an outstanding felony warrant, absolute foundation for that would be to show that Mr. Peltier knew that Special Agents Coler and Williams, or thought were law enforcement officers as opposed to goons who were just attacking their camp. Until such time and unless the Government shows some evidence, some rational basis for concluding that Mr. Peltier thought that they were law enforcement officers rather than just bushwhackers of some kind, they have not even established a foundation for introducing evidence of a warrant outstanding for a serious crime. Because otherwise he would have no reason to connect a couple of bushwhackers, a couple of goons of Dick Wilson's that's outstanding in Milwaukee, Wisconsin. There has been no factual showing to this point.
 My third point is Mr. Crooks said, "Well, we probably wouldn't be willing to stipulate." All I'm saying is we've made an offer to stipulate in the face if you do make an adverse ruling to stipulate that Mr. Peltier knew that there was an outstanding warrant for a serious felony in Milwaukee.
 Now, if Mr. Crooks thinks that there's something additional that would be required to be stipulated in order to complete that element I call upon him to tell the Court now whether we would be willing to make that additional stipulation.
 MR. CROOKS:  Well, Your Honor, again I'm confused by {1717} counsel. They're willing to stipulate, but they're not. To solve the impasse what counsel apparently wants to do is have it both ways. They lose the ruling and then maintain an appellate record and then they want to stipulate to cut down their exposure also. The United States at this time, to avoid any further problem on this area, will agree that we will not call Mr. Hlvinka if counsel will stipulate to the following facts:  That, and without any ruling of the Court, it seems to me that they've got to make a choice if they're offering a stipulation. First of all, that Mr. Peltier was charged on November 22, 1972 with the attempted murder of Ronald Hlvinka.
 That on or about July 30, 1974 Mr. Peltier jumped bond on that charge and his bond was forfeited.
 Third, that on the 9th day of August, 1974 a federal felony warrant for unlawful flight to avoid prosecution was issued by the United States. And fourthly that this charges were still outstanding on June 26, 1975 and that the defendant was aware on that date that he was a fugitive from justice with regard to those charges.
 If counsel is willing to stipulate that flat out, then we will not call Mr. Hlvinka. We will type an appropriate stipulation and read it to the record.
 MR. LOWE:  May we have just a second, Your Honor?
 (Defense counsel conferred.)
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 THE COURT:  While counsel are conferring would you permit me to see the proposed exhibit?
 MR. CROOKS:  Surely, Your Honor.
 MR. LOWE:  When Your Honor is finished reading that I'll be prepared to respond.
 THE COURT:  You may proceed.
 MR. LOWE:  Let me respond first, Mr. Crooks misunderstands our position with regard to the stipulation. We are not trying, to have our cake and eat it too. We made two objections. The first is that this information would not be admissible at all, not because it's prejudicial but because it's not relevant. We believe that Your Honor, or that no foundation has been laid yet, namely to that he knew there were police officers, or FBI agents. That's our first objection, on relevancy and foundation. That is for the Rule 404 B, balancing test. That simply has to do with the ordinary relevancy arguments and foundation if Your Honor overrules us on that.
 THE COURT:  I might mention that I am prepared to rule on that. That on the basis of the testimony of specifically Michael Anderson I believe that the jury could find that the defendant knew that Coler and Williams were special agents of the FBI when they appeared the next morning. And the ruling of the Court is therefore that that is relevant.
 MR. LOWE:  So that you have ruled against us on the relevancy?
{1719}
 THE COURT:  I have ruled against you on the relevancy.
 MR. LOWE:  Fine, all right. That's all that was about.
 Now, given your ruling there we are now addressing the question of prejudice and Rule 404 B on that. We are willing to make a stipulation in order to permit the Government, because of your rulings, to introduce what we think they're entitled to introduce under Rule 404 B.
 We are willing to stipulate and to enter into a written stipulation, or do it in the open court with the defendant, however Your Honor wants, first that there was a warrant charging Mr. Peltier with the commission of a serious felony. And I think the date is July, 1972. I missed the date, in Milwaukee, Wisconsin.
 Secondly, that on July 30, 1974 he, failed to appear and his bond was forfeited. Whatever language is required there of the specific terminology. I'm sure we can work that out without any problem.
 Third, we, with regard to the unlawful flight to avoid prosecution warrant, I don't believe that there in fact Mr. Peltier knew that that warrant was outstanding. I don't know that that is a part of what the Government has offered and required to stipulate because factly I don't think they would even assert that they knew that Mr. Peltier knew about it. I think that they were talking about just stipulating that it was in existence and we have, we would, as a part of {1720} the stipulation, stipulate that the warrant was outstanding without stating whether or not Mr. Peltier knew about it.
 Finally, that on June 26, 1975 he was aware that there was an outstanding warrant for serious felony in Milwaukee, Wisconsin for which he had failed to appear; and that he was in a status, I don't know whether the word fugitive has any significance, but certainly he knew that he was wanted in Milwaukee, Wisconsin pursuant to that serious felony warrant and the jumping of bond.
 I will, to the extent that I can vouch to the Court, that Mr. Peltier did not know about the unlaw flight warrant, so I can't stipulate that he knew about it on June 26th. But we certainly have no objection to stipulating that it actually existed and was outstanding on June 26th.
 Now, we fell that it is irrelevant as to what the nature of the serious felony was, whether it was attempted murder or sale of heroin or bank robbery, or whatever it was does not in any way change the nature of the state of mind with reference to a face to face confrontation with law enforcement officers and the desire to flee.
 Serious felony is all that is necessary in that regard and it certainly is irrelevant in any event as to the name of the person against whom the felony was purportedly perpetrated. And that absolutely, whether the man's name was Hlvinka or Smith or Roosevelt wouldn't make any difference, and would not {1721} be an element of their proof under 404B that it would be relevant.
 So we are certainly prepared to give them that, and to the extent that Your Honor has found that it would be relevant to show some reason why Mr. Peltier might react very badly at police officers or might even have a motive to neutralize them so that he cannot be captured, the stipulation we have offered gives the Government everything they're entitled to. It does not give them prejudicial information that they are not entitled to, and we don't think we are required to stipulate that.
 Now, the Government doesn't have to accept our stipulation, I understand that. But in the Court making a decision as to whether a showing of necessity has been made by the Government to justify such a serious incursion in the general presumption against evidence of other crimes, we believe that our stipulation is of sufficient basis for Your Honor to rule that we have met it.
 MR. CROOKS:  Your Honor, I rise again on this matter. Mr. Lowe is attempting to play games on the thing.
 He wanted to know what the United States was willing to accept by way of stipulation, and I told him very specifically on the record. I will not accept Mr. Lowe's modified version.
 I think it's relevant to show what we have offered the warrants for. If Mr. Lowe wants a stipulation insofar as the {1722} Government agreeing to it basically he's going to agree to our version or none at all because we feel that the warrant should go in and we're prepared to go forward just as planned
{1723}
 If Mr. Lowe apparently feels that by offering a stipulation I have conceded something, and I haven't, we are prepared to go forward and put the warrant in and do it just as we planned.
 If Mr. Lowe is willing to accept my version of the stipulation, then we are willing to not call Mr. Hlvinka and not do it through the warrant, but we are not going to accept a cut-down version. Attempted murder is the charge . Attempted murder is what the warrant shows. I think we are entitled to show that, and we are also entitled to show the other things that were mentioned in my oral recitation; and I think we can show it through Mr. Hlvinka.
 THE COURT:  The Court will make a further ruling, and that is that it is relevant to show the nature of the offense, in other words, something more than a serious felony. A serious felony, for example, could be burglary. Attempted murder is considerably different than a burglary.
 MR. LOWE:  In the face of that ruling, your Honor, could we confer for a moment?
 THE COURT:  You may.
 (Counsel and the Defendant confer.)
 MR. LOWE:  Your Honor, in the face of your last ruling, the Defendant will enter into the stipulation that {1724} on the date -- I don't recall the date Mr. Crooks stipulated to, July of '72, I think -- do you have the date there so I can state it correctly?
 MR. CROOKS:  The attempted murder charge was on November 22nd, 1972.
 MR. LOWE:  Thank you.
 That on November 22nd, 1972, there was an attempted murder charge filed against Leonard Peltier in Milwaukee, Wisconsin; that on July 30, 1974, he failed to appear pursuant to the terms of his bond, and his bond was forfeited; that on August 9, 1974, a Federal unlawful flight to avoid prosecution warrant was issued, although there is no showing or stipulation as to whether Mr. Peltier knew about that or not; and on June 26th, 1975, Mr. Peltier was aware that he still had an outstanding warrant charging him with attempted murder in Milwaukee, Wisconsin, and whatever consequences there were in his having failed to appear in 1974, pursuant to his bond.
 I believe that is the statement that I made before with the exception that over objection to your ruling we are adding the additional information that it was a warrant for attempted murder. I believe I have correctly stated it, and we would be willing to do that pursuant to my earlier discussion and subject, of course, to all of our objections, and reduce that to writing.
{1725}
 THE COURT:  The record is clear as to your objections .
 MR. CROOKS:  Your Honor, I think the stipulation must also include -- I am not sure that I specifically stated that earlier -- that the original warrant, the attempted murder warrant had been served on him in Wisconsin so that that would be clear from the stipulation to the jury, that he was fully aware and he appeared and jumped bond on it, but that that warrant had been served.
 MR. LOWE:  I thought that was implicit in what I said. We would certainly add additionally that we stipulate that the attempted murder warrant had been served on Mr. Peltier in Wisconsin, and he had been bonded pursuant to the warrant; and that it was pursuant to that warrant and that bond that he failed to appear in 1974.
 MR. CROOKS:  Well, your Honor, in view of that agreement, the United States would be willing to abide by its earlier statement that we would then not call Mr. Hlvinka.
 However, two points should be made:  No. 1, that we assume from this that the defense will not themselves go into the facts of this matter after Hlvinka has left. If they have any intention of doing that, then the United States would insist on going forward right now during the proper order; and I don't know whether they intend to, but if they intend to come in with any testimony which goes {1726} in the facts of that incident, then the United States will not feel bound in any way by our stipulation or offer to stipulate; and we will intend to go ahead and put Mr. Hlvinka on right now as planned, just so that's understood.
 The second thing is that I don't know what Mr. Lowe specifically is referring to as to the wording of the fourth paragraph. Now, the wording that I dictated was that the Defendant knew -- well, basically the wording that I dictated earlier was that these warrants, speaking of both warrants -- and I would modify that to include only the attempted murder warrant -- I don't know that, and obviously we cannot establish, whether or not he actually knew of the outstanding nature of the flight act; but I would modify it, that the warrant for attempted murder was still outstanding on July 26th, 1975, and the Defendant knew that he was a fugitive from justice with regard to that charge on June 26th, 1975.
 Now, if that is agreeable with Mr. Lowe, so that we don't get into a hassle later as to the wording, then we will concede to the stipulation.
 MR. LOWE:  Let me speak to the last point first. The term "fugitive from justice" may very well have some particular legal connotations, maybe a legal conclusion or statutory status even in Wisconsin, or perhaps in the Federal law. I don't know if it has any significance, and {1727} it is very unlikely; and I would think the Court would realize that Mr. Peltier or anybody who is not a law enforcement officer, would say, "Oh, my God, I am a fugitive from justice."
 It is certainly clear that he knew these warrants were not satisfied, he was wanted under them. He had jumped his bond in Milwaukee, and that the Government may very well characterize that fairly as being a fugitive from justice.
 I cannot stipulate Mr. Peltier knew that because in fact he never thought those thoughts. I don't think it is fair to ask for that stipulation. It is not his thought. It does not mean that the Government is not correct in characterizing it as that. They certainly would not be prevented from arguing he was a fugitive from justice. I don't see any purpose in stipulating that particular phraseology.
 MR. CROOKS:  This is the reason I raised it, your Honor. I want to know before we release Mr. Hlvinka:  What wording are they willing to stipulate to with regard to the fourth paragraph? I don't want to get into a hassle after Mr. Hlvinka is gone, then we can't agree on the wording. I want that in the record so that I can get a copy of the reporter's notes and prepare something in accord with that; and I am asking Mr. Lowe to state what {1728} wording he is willing to accede to on the fourth paragraph; and if he will state that, I will then indicate whether or not the United States is also willing to accede to it.
 MR. LOWE:  I have already stated exactly in detail.
 Will you let me finish? I sat there quietly and politely while you spoke for 20 minutes. I want to have an opportunity to say my piece.
 We are willing to state in narrative form in any normal lay terms as to what the status is. All I am saying is I don't want to use "fugitive from justice", which may have some magic connotations. It is not a term Mr. Peltier would use or think. If we can work out now in open court or any time at a break what specific language in lay terms describes Mr. Peltier's state of mind, that he knew the warrant was outstanding, he knew he was being sought by police officers, that he knew if he was captured and they found out about it, he would be returned to Milwaukee for trial -- however they want to phrase it in ordinary simple, simple terms. We are not trying to play word games. We don't want word games played on us.
 Going back to Mr. Crooks' first point, I certainly understand that the premise of entering into a stipulation to avoid Mr. Hlvinka testifying and so forth would be {1729} premised on the fact that we do not raise it in any form at any time; and that if we raise it -- and I vouch at this point we do not have position with regard to our defense, we don't know who the witnesses will be, we don't know whether we are going to rest at the end of the Government's case or put on a lot of evidence, much will depend on what the Government's case is, I think we know what we are going to do -- but if at some point we address the charges in Milwaukee, the Government will have a free rein to put on Mr. Hlvinka and anybody else. That is understood. I take no issue with it.
 I am sure the Government would not want to release him from subpoena, but just simply tell him he probably will be needed. We have done that with many of our witnesses and with some of the FBI Agent witnesses already, in fact. That's quite understood. We take no issue with that.
 As far as the wording on the fugitive status, as I say, we are willing to use any lay terms that Mr. Crooks wants to put out. I think I have made it clear on the record that we are not trying to play word games with what his state of mind was.
 MR. CROOKS:  Well, I think one further comment is warranted, your Honor. That is fine, that's why I wanted to make it clear, so that there is no question as to what {1730} we are putting in that stipulation. We will avoid the words, "fugitive from justice". We will prepare a stipulation along the line of what Mr. Lowe has indicated.
 However, I think our position again should be stated, that we understand this stipulation to have laid to rest once and for all the Wisconsin incident; and the United States will object violently to any attempt by the defense through any means or method to go into the facts of this case.
 If they have any intention of doing that, then we feel that we should not be bound at this time by any offer of stipulation, that we proceed to call Mr. Hlvinka in the normal order of proof and go into the facts; and it seems to me that counsel has stated -- that they are the ones that don't want this brought up, and it seems to me they have got to make a stipulation that they are not going into it any further, or they are. If they intend to go into it any further, then we are simply going to back off with what we have been discussing here and proceed as planned, assuming that the Court does not rule the matter relevant, because we are not going to want to leave that door open.
 Counsel has been aware of this situation for a long, long time; and it seems to me that they have either got to fish or cut bait and decide if this stipulation as {1731} envisioned by the Government covers the Wisconsin incident and closes it, that's fine. We are willing to stipulate. If they want to play games again and leave it open and possibly go in and retry the thing themselves, then we prefer to do it right now as we originally planned to do.
 THE COURT:  I may just make a comment at this point. If the stipulation is entered into and if an effort were later made to go into the facts of this Milwaukee incident, it might very well result in opening up the factual allegations as set out in this complaint; and I would expect that counsel on both sides, if a stipulation is entered into, would just as soon leave that closed.
 MR. LOWE:  Could we have just a word?
 (Counsel confer.)
 MR. LOWE:  Well, your Honor, you said it is our understanding as well, if the Defendant were to raise this issue at a later time in any way, that would open it up for the whole warrant to come in, all the documents to come in.
 At this point, certainly from what I have read of them, it would be very undesirable and prejudicial. We understand that's the premise on which the stipulation is entered, that we would be imperiling the very prejudice we are talking about by mentioning or going into the facts of it. That would bring it all in later, so I think at {1732} this point we have no intention of right now going into -- that. It would require opening up the door intolerable prejudice in our judgment right now, so I don't think we have any anticipation of doing that at all.
 MR. CROOKS:  With that the United States will agree and accede to the stipulation, and prepare a written stipulation. I would ask the court reporter to furnish us with a copy of my remarks capsulizing the situation as well as Mr. Lowe's. We will then prepare an agreeable stipulation which we will then read to the jury in lieu of Mr. Hlvinka's testimony.
 THE COURT:  Very well. Now --
 MR. CROOKS:  (Interrupting) We would do this, of course, at a later time.
 THE COURT:  That was my question, as to whether it would require it to be done in order to have an orderly presentation of the evidence or whether it could be later.
 MR. CROOKS:  No. I don't believe it is necessary. I think Mr. Hlvinka would fit in now or also at a later time. We would prepare the written thing and bring it up at an appropriate time.
 THE COURT:  Very well.
 Is there any problem with reference to the next witness that has to be resolved before he is called?
{1733}
 MR. SIKMA:  I don't believe so, Your Honor.
 THE COURT:  The jury may be brought back.
 (Whereupon, the following proceedings were had in the courtroom in hearing and presence of the jury:)
 THE COURT:  Members of the jury, I can, well, you know that you have been standing by for an hour and ten minutes and I can tell you that the reason you were standing by is because a legal matter was argued and I can further tell you that your time was not wasted because the resolution of that legal matter undoubtedly saved at least two or three hours of additional testimony that will not have to be presented. Even though you were not in the courtroom you were rendering a service.
 MR. LOWE:  May I have a word with Mr. Sikm?
 THE COURT:  You may.
 MR. LOWE:  May we approach the bench?
 THE COURT:  You may.
 (Whereupon, the following proceedings were had at the bench:)
 MR. LOWE:  Your Honor, on one exhibit which will be relevant to this witness, it's a two twenty-three cartridge casing, there are some reasons why we feel that the stipulations with regard to chain of custody ought to be done in more specifics than we are generally doing, generally we have stipulated to chain of custody of cartridges and things {1734} like that without having them in testimony. This particular cartridge was found in the trunk of Coler's automobile and is of a little more significance than most of the others. I just told Mr. Sikma it wasn't until I read the three hundred materials that it might be better to do this. I think we can work out stipulations such as what different people in the links of chain of custody have called so they wont' have to call them all. But I think it would be better to do detailed stipulation on this item than just a general wave of the hand on chain of custody.
 The reason I approached the bench, it would not necessarily be in sequence and we're not going to raise objections to having witnesses in the sequence they are calling them on, the understanding being simply by the end of their case we will be stipulation. There is already one or two other witnesses I think they plan to call who are involved in the link of the chain of custody and we will have a detailed record on what the chain was, or at least purported to be.
 I wanted to explain to you so you'd understand without having to explain in open court what we're doing.
 MR. SIKMA:  I can state for the record this particular chain of custody, Hodge, Cunninghma, Hodge.
 MR. LOWE:  It may not be any problem at all. It's Exhibit 34B. I want you to understand it may be a little out {1735} of sequence and we're not going to object to that and we're not actually going to raise objections to foundation. We just understand that will be something that will be subject to eventual connection. That's all.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 MR. SIKMA:  The government calls Cortlandt Cunningham.