TRUE DEMOCRACY SPRING 2001 TABLE OF CONTENTS
political prisoners
Leonard Peltier
The following is excerpted from a transcript of the trial proceedings in the
US vs Leonard Peltier VOL 8.
Two stenographers worked in the office in Rapid City in Jun of 1975..Linda
Price and Ann Johnson under Senior Agent George O'Clock. Ann Johnson was
asked to take shorthand notes of the radio transmissions the day of the
shootout at the Jumping Bull compound. The "302", close to 36 pages long
written as regards those transmission was never accepted into
evidence...later testimony by Gerard P. Waring describes the "red pickup"
mentioned below, as a "red and white van", SA Fredrick Coward describes the
vehicle impounded as a "red and white panel truck" in his testimony. The
vehicle was held in the evidence yard of the BIA in Pine Ridge. No one has ever
found the "red pick up" identified in the original transmission.despite a
request for a road block.
The following exchange regards this examination.
Q And who was the senior resident agent that worked in the {1653} room off
of your room?
A George O'Clock.
Q Now, would you tell us what happened, if anything unusual happened, at
about noon on the 26th of June, 1975?
A We heard radio transmissions that some agents were under fire.
Q And do you know who was transmitting those radio transmissions?
A Ron Williams.
Q Did you recognize his voice?
A Yes.
Q Had you had occasion to listen to Ron Williams talk over the radio on
other occasions?
A Yes.
Q What, if you recall, was the nature of those transcriptions
A The first thing I heard was "There is something wrong here, we are
being fired on."
Q And about what time was that?
A About 11:55.
Q And what did you hear next?
A Transmissions back and forth between Ron Williams and Gary Adams, trying
to get a location on where Ron Williams was.
Q About how much time was there between the first transmission concerning
the fact that Ron Williams indicated he was being fired on, and the
transmission that Gary Adams was responding {1654} to that call?
A I really don't know.
Q Would you say though it was -- could you give me an estimate of about
how much time it was?
A I would say only a matter of some seconds, maybe a minute or two.
Q O.k. What did you hear next?
A Just mainly transmissions back and forth, and the last thing I heard
from Ron was -- I didn't really hear the words, but I heard like he kind of
broke off and it sounded like a moan.
THE COURT: Speak up, please.
Q (By Mr. Sikma) What, if anything, were you instructed to do at that
time?
A I was told to start taking notes.
Q And were you able to hear the transcriptions or understand what the
transcriptions were at that particular time?
MR. TAIKEFF: Your Honor, I trust Mr. Sikma meant transmissions?
MR. SIKMA: I am sorry, I did.
A Not fully. I could hear him, yet I really didn't know what I was
supposed to be taking down, whether I was supposed to be taking a summary
or trying to get it sort of verbatim, so I really didn't know what I was
doing.
Q (By Mr. Sikma) Did anyone come to your assistance at that {1655} time?
A Yes.
Q Who was that?
A George O'Clock.
Q And what, if anything, did he do?
A He would tell me more or less what was said, and I would write it down.
Q You would take notes?
A Yes.
Q And how long did this go on, about?
A Until -- well, only about 12:30, and then I was on my own.
Q O.k. What did you do after that time?
A I took notes the rest of the day.
Q Do you recall the radio calls throughout that day, do you recall what
was being said throughout the day?
A Not real well, because it was so much, and I was on it all day. Not
specifically.
Q As a matter of procedure -- and you said the first half hour or so
George O'Clock was telling you generally what was being said and you were
taking notes. What did you do after that?
A I tried to get down as close as I could just what was being said on the
radio back and forth.
Q Did you keep track of the time?
A Yes, as close as I could. When the transmission would {1656} come in, I
would try to look at the clock and get the time as close as possible.
Q What did you do with the notes that you transcribed?
A Well, I transcribed the notes onto a 302.
Q And whose 302 was that?
A Well, it is a 302 of George O'Clock in part. The actual first part of it
is what he, you know, was telling me, which took notes on; and then after
that it is really all my notes on that day.
Q How long did you go on that particular day taking notes?
A Until about 9:40 that night.
Q What was Linda Price doing at this time?
A She was answering the radio, or I mean, the telephone, I am sorry.
Q And did she at any time assist you in taking down the radio messages?
A Yes, whenever I needed to take a break.
Q And about how many times did that take place during the course of the
day?
A Only about three, I think.
MR. SIKMA: May I have a moment, your Honor?
THE COURT: You may.
(Counsel confer.)
Q (By Mr. Sikma) Defendants have marked Defendant's Exhibit 75. I will
show you this and ask you whether or not you {1657} recognize what
Defendant's Exhibit 75 is?
A Yes.
Q And what is that?
A That's the transcription of what my notes were from that day.
Q Now, would you look at that and tell me, if you can, what time it was,
as noted on that transmission, that you started taking notes on your own
without the assistance of Special Agent O'Clock?
A About 12:36.
Q That was the first time that you did not have his assistance, is that
correct?
A Yes.
Q And to go throughout this document, how long into the evening did you
take notes on these radio messages?
A Well, the last entry is 8:50.
Q I will direct your attention to Page 1 of that document, and tell me if,
after reading it, you can tell me what the transmissions were between 11:55
and 12:10 p.m. -- 11:55 a.m. and 12:10 p,m. I will ask you if you will read
them first, and then tell me if you recall, after reading them, what you
heard.
A (Examining) I don't recall hearing these direct, I mean myself.
Q Now, up until 12:26, I believe, or 12:36, rather, you were receiving
dictations from George O'Clock, is that correct?
{1658}
A Yes.
Q Do you recall any of those radio transmissions from your independent
recollection without reading them?
A Not very well, no.
(Counsel confer.)
Q (By Mr. Sikma) What was the general nature of the radio transmissions,
what was being said between 11:55 and 12:10 p.m.?
A There was a general background of what had been happening, of the agents
being fired at, and what was being done.
Q O.k. What happened at 12:06?
A Adams was receiving fire.
Q And what happened at 12:10, approximately 12:10 p,m.?
A An ambulance was called to go down there.
Q O.k. and what happened --
THE COURT: (Interrupting) Excuse me. Would you repeat that? You didn't
speak loud enough.
THE WITNESS: O.k. Ambulance was called to go down there.
Q (By Mr. Sikma) O.k. and what happened at about 12:18 p.m.?
A Adams was on the scene and he had been receiving fire.
Q And what else happened?
A He said that he saw a red pickup leaving the Jumping Bull Hall area, and
the Pine Ridge Police were instructed to stop this pickup.
Q And what happened at 12:21 p.m.?
{1659}
A Adams and the BIA unit with Adams reported they both had flat tires, and
they didn't know where it came from.
Q What happened at 12:23 p.m.?
A Adams stated there was firing from both directions at both Adams and the
BIA reinforcement with him.
Q Do you know from the transmissions what time Special Agent Hughes
arrived on the scene?
A At 12:24 p.m.
Q And what happened at 12:27 p.m.?
A Adams reported there was still firing, and they were receiving fire from
Jumping Bull Hall.
Q Now, approximately how long throughout the course of the afternoon, if
you recall, did they receive fire or receive -- were they receiving fire in
that area?
A I don't recall.
MR. SIKMA: I have no further questions.
MR. TAIKEFF: May I inquire, your Honor?
THE COURT: You may.
CROSS EXAMINATION
By MR. TAIKEFF:
Q Miss Johnson, you have Defendant's Exhibit 75 for identification in
front of you?
A Yes.
Q I am going to place before you, in addition, Defendant's Exhibits 81 and
82, after I show them to Mr. Sikma, so he will {1660} know what I am
talking about.
(Counsel shows document to Mr. Sikma)
{1661}
This particular time I'm going to put them facedown. Okay.
How long have you been employed by the Federal Bureau of Investigation?
A Since '72.
Q Do you like working there?
A Oh, yes.
Q You do stenographic work amongst your other duties?
A Yes.
Q And does that involve the preparation of forms known as 302s?
A Yes.
Q Do you have any objection to my referring to them sometime as reports
just for a short hand?
A That's fine.
Q Now as a general rule, the 302s or the reports are dictated to you by
the agent whose 302 it is?
A Right.
Q And then I assume that you're one of the people in the office who types
the reports and then gives the reports back to the agent who dictated it?
A Yes.
Q Now there were certain events which occurred in your office on June 26th
that you've told us about in part, is that right?
{1662}
A Yes.
Q Now 302 as a rule contain a lot of precise detail, don't they?
A Yes.
Q And as a general rule they're meant to contain as much detail of events
as are deemed important by the person writing the report, isn't that
correct?
MR. SIKMA: Your Honor, I'd object to this as calling for a conclusion on
the part of the witness.
THE COURT: The objection is sustained on the grounds of lack of
foundation.
Q (By Mr. Taikeff) Do you know from your own experience that when an
incident, perhaps one that only lasted a few moments or perhaps a fact
which is not very complex is recorded in a 302, it is done with a great
deal of detail and a great deal of language to make sure that every
conceivable aspect is put down on paper, isn't that a fair description of
how thoroughly and accurately 302 are prepared?
MR. SIKMA: Your Honor, I'd object. This calls for conclusion on the part
of the witness. Not within her knowledge.
THE COURT: There is no showing that this witness has any expertise other
than a stenographer who's typed 302s dictated by other people. That's the
reason I sustained the first objection. {1663}
Q (By Mr. Taikeff) There's a 302 in existence that was typed on June 28,
1975. It appears to be an interview of you by an agent named Leon Canton.
Are you familiar with the existence of that 302?
A Yes.
Q Were you interviewed by Agent Canton?
A Yes.
Q Did he dictate the 302 or the content of the 302 after he interviewed
you?
A Yes.
Q To whom did he dictate it?
A Myself.
Q And who typed it?
A Myself.
Q Now Agent Canton works out of what office?
A He's in the Minneapolis division.
Q And have you ever read that 302?
A Yes.
Q See if one of the two documents I gave you, specifically No. 81, is the
document I have been questioning you about.
A Yes, it is.
Q Now look at that first paragraph. It tells your occupation, doesn't it?
A Yes.
Q And where you're assigned?
{1664}
A Yes.
Q And what room you work in?
A Yes.
Q And the city and state and building in which you work?
A Uh-huh.[yes]
Q Based on your experience in working with and preparing, or rather typing
302s, is that kind of detail unusual?
A No.
Q In fact, a rather prominent characteristic of 302s is that they contain
a great deal of precise information and detail about every event that they
talk about.
MR. SIKMA: Objection, Your Honor, the foundation has still not been
established and this witness does not know what --
MR. TAIKEFF: Your Honor, please. I do not think Counsel should signal the
witness what Counsel thinks the witness should say.
MR. SIKMA: Your Honor, I think that it's a legal matter of whether or not
this witness is competent to answer that question. As a matter of law, in
fact, she is not.
THE COURT: Sustained.
Q (By Mr. Taikeff) How many 302s have you typed since you started working
for the FBI?
A There is no way to state.
Q Yes, there is. How many do you type a day?
{1665}
A It varies.
Q Average day.
A I suppose it could be at least ten, twelve.
Q Do you read them after you type them?
A No.
Q Do you understand what's being said to you when the dictation is being
given?
A Usually.
Q When an agent sits down with you, assuming you sit, and dictates a 302,
do you have any sense of what he told you when you get finished taking that
dictation?
A Most of the time.
Q As a general rule, when an agent dictates a 302, after the dictation has
been completed but before you type, do you know in general terms what it
was he just said to you in he course of the dictation?
A I don't think so.
Q You mean you have no memory of what he said to you?
A Not well enough that I could state in general terms what the whole thing
was about.
Q You mean you couldn't give a general idea of what it was just reported
to you via his dictation?
A I could probably pick out a few of the more prominent things that might
have hit me, that I might have especially noticed while I was taking his
dictation, but as far as the {1666} whole thing was about --
Q I didn't ask you what the whole thing was about.
If, for instance, an agent described to you the fact and detail of having
followed somebody during the afternoon you have had that experience,
haven't you?
A Yes.
Q You would as a general rule know when you got finished taking that
dictation that the agent had followed somebody, isn't that correct?
A Yes.
Q And you might remember some of the principle details, isn't that
correct?
MR. SIKMA: Your Honor, I would object to this line of questioning as
irrelevant and, further, I request I be able to ask one or two questions in
voir dire for the purpose of making an objection to this line of
questioning.
MR. TAIKEFF: I'm trying to lay the foundation which Your Honor requires.
THE COURT: Would Counsel approach the bench.
(Whereupon, the following proceedings were at the bench:)
THE COURT: I'm not sure that anyone can lay a foundation with this witness
unless you can show that she has had some training relating to what is to
go into 302s, what specific items should be recorded, what should not. In
other words, {1667} exercising judgment. I don't think a stenographer
simply reciting what somebody has dictated to her is qualified.
MR. TAIKEEFF: I can approach it in an entirely different way, Your Honor.
In response to this specific thing, Your Honor, just said, I am not trying
to establish through this witness whether the 302s are done in conformity
with the requirements of the FBI. I'm only seeking to establish a fact
through her which is based on her own experience that anyone familiar with
the English language would have an impression about after working on 302s
for years. However, I can approach it in an entirely different way that
probably will not be objectionable.
THE COURT: But what I am, the reason I'm sustained the objection is
because of the fact that one agent may have recorded a fact she may not
know. She may know that he did record a fact but she may not know why he
selected that particular fact.
MR. TAIKEFF: I understand that. My point, Your Honor, is that I think that
any intelligent person knows the difference between a narrative text that
by its nature has a mired of detail, peripheral details, and one that
narrates very specific major points. That's a facility every person who is
literate and has a functioning mind is capable of. It is only Mr. Sikma's
bold assertion that she is not capable {1668} or competent to answer the
question. Any literate adult could answer that question. Giving a sample of
writing, "Is that in your opinion something which is chalked full of
detail?" And the Federal Rules of Evidence permit a lay witness to express
such an opinion. That's the only thing I'm trying to get out of this
witness and Mr. Sikma doesn't want me to get it in.
THE COURT: The impression I get is you're attempting to establish through
this witness the significance or lack of significance of something that is
recorded and I don't think that this witness has any --
MR. TAIKEFF: No.
THE COURT: -- expertise in this area.
MR. TAIKEFF: No. It is the absence of something I'm leading up to. But
first --
THE COURT: That's exactly the reason that I am sustaining it, because that
is a judgment factor to be exercised by the trained investigator who makes
the determination. I don't think this witness, whether something was left
out or not or the significance of something being left out or not is
anything this witness could testify to.
MR. TAIKEFF: All right. I would like to ask some other questions along
different lines.
THE COURT: You may do that.
(Whereupon, the following proceedings were had in the {1669} courtroom in
the hearing and presence of the jury:)
Q (By Mr. Taikeff) How did Agent Canton conduct the interview of you on
June 28th? What happened?
A Just asking questions on what I heard and what I was doing.
Q Did he ask you whether you worked in room 260?
A No.
Q It's in that 302, isn't it?
A He asked me if that's where I was at the time because there is, was
another room that I could have been in.
Q Did you tell him that your place of employment is room 260?
A No.
Q You knew this form was an interview form?
A Yes.
Q And you're the one who took dictation and typed it, right?
A Yes.
Q And it's your understanding, is it not, that a form is supposed to
contain what the person being interviewed has said, right?
MR. SIKMA: Your Honor, I would object to this. Outside of the knowledge of
this witness. I would make a competency objection.
Q (By Mr. Taikeff) Didn't you just say yes to my question?
THE COURT: I am going to overrule that objection.
{1670}
Q (By Mr. Taikeff) I'll withdraw the last question and ask you whether
it's your understanding that an interview report is supposed to report what
the person being interviewed has said?
A Yes.
Q No more, right? A person taking the interview is not
supposed to make up things, isn't that correct.
MR. SIKMA: Your Honor, I would object to this.
THE COURT: I think that we're getting to the area we discussed at the
bench. That objection is sustained.
{1671}
Q Did you tell Agent Canton all of the things which you considered
important concerning your activities on June 26, 1975 when he interviewed
you on June 28th? Yes or no.
MR. SIKMA: Your Honor, I'd object to that as irrelevant.
THE COURT: Overruled.
Q (By Mr. Taikeff) Do you want the question again?
A No. I just wasn't sure I was supposed to answer.
Q Yes. If the Judge says overruled to an objection you may answer.
A Okay.
Q Are you nervous?
Q Yes.
THE COURT: The reporter will read the question to the witness.
(Whereupon, question read back: "Question: Did you tell Agent Canton all
of the things which you considered important concerning your activities on
June 26, 1975 when he interviewed you on June 28th? Yes or no.")
A Yes.
Q (By Mr. Taikeff) Now, did you tell Agent Canton that at or about 11:50
or 11:55 A.M. you had been taking dictation in a different room other than
Room 260, and that when you completed doing that work you returned to Room
260 at approximately 11:50 A.M.?
A Yes.
{1672}
Q To what question did you give him that information?
A He asked me what I had been doing, and that's when I said I had been
taking dictation and was preparing to go to lunch.
And we prepared to go to that room to go to lunch because that's where our
purses and everything were.
Q Now, there's some sort of a speaker on the wall, or on a table in Room
260?
A The radio, it's on the table next to my desk.
Q And is it fair to say that as a general rule what comes over that radio
could be heard by anyone with normal hearing in the room?
A Yes.
Q And was the radio functioning as well as usual on that particular day?
A Yes.
Q Now, take a look at Defendant's Exhibit 75 for identification. That's
also a 302, isn't it?
A Yes.
Q It's a long one, it's thirty-six pages long; is that correct?
A Yes.
Q How do you know that something happened around 12:36 P.M. June 26, 1975
that changed what you were doing, or what was happening in connection with
your work?
A I'm not sure I know what you mean.
{1673}
Q Well, maybe I've stated the wrong time and I will be happy to be
corrected by Mr. Sikma if I did.
But I thought you said on your direct examination that something changed
for you that day at or about 12:36?
A Well, I was taking the notes on my own from then on.
Q How do you remember that?
A Just by more or less locking at the notes I can recall from hearing
those things personally.
Q When you were looking at what notes?
A These here (indicating).
Q Let's be careful about the use of the word "notes". You have Defendant's
Exhibit 75 for identification in front of you?
A Right.
Q That's a typewritten 302?
A Right.
Q When you took notes in the office you took them with a pen or pencil and
wrote them on a different piece of paper; is that correct?
A Yes.
Q So when we talk about notes, let's be referring to the notes you took
with your hand.
A All right.
Q Okay. Now, I ask you how is it that you are now able to remember almost
two years later that it was at 12:36 P.M. that the circumstances under
which you were working changed on {1674} June 26, 1975?
A It's by looking at this. That's the first thing I recall personally
hearing.
Q Ms. Johnson, in your direct examination didn't Mr. Sikma ask you a
question about the first transmission that came in from Ron Williams?
A Yes. But that was on, that was not taken down in notes at that time
because at that time I was not taking notes.
Q Ms. Johnson, please try to answer my question as I ask it.
I asked you whether on direct examination you were asked to tell us about
the first transmission that came in that caught your attention; is that
correct?
A Yes.
Q And you told us the content of that transmission, did you not?
A Yes.
Q From your memory here in this courtroom?
A Yes.
Q So a few moments ago you said that the first transmission you took down
on your own was at 12:36. You don't mean to say that that was the first
transmission that you heard or have any memory of, did you mean to say?
A That's the first transmission on this 302 here.
Q Forget Defense Exhibit 75 for the moment. I'm talking to {1675} you
about facts, historical facts which have nothing to do at the moment with
what's on that piece of paper.
Did you hear the initial transmission?
A Yes.
Q Or what you believed to be the initial transmission from Williams?
A Yes.
Q And did you hear additional transmissions?
A Yes.
Q And do you have some recollection of those transmissions?
A Some.
Q I'm not asking you whether you know them exactly verbatim, you
understand that?
A Yes.
Q Nor am I asking you them today as well as you did on June 28th, but you
did hear transmissions prior to 12:36, did you not?
A Yes.
Q And they were in the English language?
A Yes.
Q And you have some recollection of at least some of them, don't you?
A Yes.
Q When you were interviewed -- do you have Defendant's Exhibit 81 in front
of you?
{1676}
A Yes.
Q Is it face up?
A Yes.
Q Please turn it over.
When you were interviewed on June 28th by Agent Canton did he ask you
questions about any portion of the transmissions which you then on June
28th remembered?
A Yes.
Q And did you tell him what you then remembered?
A Yes.
Q And did you either quote or paraphrase, depending on how accurate your
memory was, some of those transmissions?
A Yes.
Q Now, did he make specific reference to certain transmission and ask you
whether you have heard those, or did he say to you, "Tell us, tell me what
you heard," and you just told him what you heard? Which way did it go, if
it went either of those two ways?
A He asked me what I had heard.
Q And then on June 28th you told him, based on what was then your best
recollection, what you remembered, right?
A Yes.
Q And you told him of a number of transmissions which you heard before
12:26 -- 12:36 in that interview; isn't that correct?
{1677}
A Yes.
Q Did you use any notes in the course of your interview?
A No.
Q What did you do with your notes made during the transmissions as they
were actually occurring?
A They were destroyed.
Q I beg your pardon?
A They were destroyed.
Q Who destroyed them?
A I did a few months later.
Q Did Agent Canton ask you the names of the people who were resent in Room
260?
A Yes.
Q And did he ask you what were you doing while the transmissions were
coming in?
A I don't recall.
Q Well, I assume that he asked you whether you were present, right?
A Yes.
Q And I assume that he asked you whether you heard the transmissions?
A Yes.
Q And I assume he asked you for the content of some of the transmissions,
right?
A Yes.
{1678}
Q Didn't he ask you what your official duties were in connection with the
transmissions?
A I don't recall if he asked that at all.
Q Take a look at the opening paragraph, first paragraph on the first page
of Defendant's Exhibit 75 for identification. Read it to yourself, it's not
in evidence.
That's part of the 302, is it not?
A Yes.
Q Are the statements in that paragraph true or false?
A True.
Q Then is it not a fact that the radio transmissions were monitored by
stenographer, Ann M. Johnson, on June 26, 1975, to the best of her ability
and are not intended as verbatim; isn't that factually true?
A Yes.
Q You never told Agent Canton that you got any help from anyone from 11:55
to 12:36, did you?
A No.
Q Why not?
A He didn't ask.
Q Did you think it was important?
A I didn't really think so. To me it was part of the dictation.
Q What do you mean "it was part of the dictation"?
A Well, part of my taking down the notes.
{1679}
Q Let's go back to 12:36 P.M., not the entry there, your memory. Couldn't
it have been at 12:10 P.M. that Agent O'Clock stopped helping you instead
of 12:36?
A I don't believe so.
Q Why not?
A It's just to the best of my recollection. I don't, you know.
Q Are you saying that you have a specific recollection that goes back to
the afternoon of June 26th that at 12:36 he stopped helping you?
A No. I'm saying that by having looking at these, this 302.
Q Yes. That's No. 75 for identification?
A Right.
Q I have to keep saying those numbers so the record is complete.
Go ahead.
A Okay. That by looking at this I usually can recognize something that you
occurred yourself, especially when you read it. And by looking at this, the
first thing I can recall hearing myself is the 12:36 entry.
Q When you use the expression "hearing myself," are you telling us that
until 12:26 you yourself heard nothing coming Dyer the speaker, but you
only got it from Agent O'Clock? Or are you saying that you heard it, he
heard it and he was helping you in your note taking?
{1680}
A That we both heard it and he was helping me in my note taking.
Q As far as you know did he ask you while he was helping you to write
anything down which was inconsistent with what your ear had heard?
A No. Sometimes I didn't catch the whole thing, though, and he would fill
it in for me.
Q Can you tell with respect to the 12:18 P.M. entry whether you heard that
one yourself?
A I don't recall it at all.
Q Does that mean you don't recall whether you heard it, or you don't
recall anything about it at all?
A I just don't recall it.
Q Now, when Agent O'Clock was working with you was he working in his
official capacity?
A Yes.
MR. TAIKEFF: Excuse me one moment, Your Honor.
{1681}
(Counsel confer.)
MR. TAIKEFF: All right, your Honor, battle by stipulation.
Instead of offering the entire document, we offer the first two pages of
Defendant's Exhibit 75 for identification.
MR. SIKMA: We have no objection to that, your Honor.
MR. TAIKEFF: I have no further questions of this witness.
THE COURT: Just a moment. I want to be sure I understand the stipulation.
You are offering it in evidence, the first two pages of 75?
MR. TAIKEFF: That's correct.
THE COURT: There is no objection?
MR. SIKMA: No objection.
THE COURT: Very well. The first two pages of 75 are received in evidence.
(The first two pages of Exhibit 75 are received in evidence.)
MR. LOWE: Counsel, wait just a moment.
MR. SIKMA: I have no further questions of the witness, your Honor.
MR. LOWE: Just a moment.
MR. TAIKEFF: May we approach, your Honor?
THE COURT: You may.
{1682}
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF: Your Honor, that leaves the rest of the document without a
proper foundation. I would assume that's the Government's position?
MR. SIKMA: Yes, your Honor.
MR. TAIKEFF: Now, there remains one witness who could complete the
foundation, and that is Agent O'Clock. We have two agents coming on
Monday, Agent Waring and Agent Hughes; and I suspect that this document may
be necessary in the course of cross-examining them, and I really don't know
why the Government is resisting the offer of the document, but it was my
understanding that some reasonable opportunity would be afforded the
defense to lay the foundation so that your Honor could make a final ruling
on this entire document; and it was suggested by Mr. Hultman when that was
being discussed at the side bar that we do it in front of the jury, and
they produced this witness.
However, I think the record will show -- and I am basing this upon, not a
memory, but a past recollection recorded, that Mr. Sikma said in open court
during the argument on this subject -- we had a rather lengthy argument --
that Agent O'Clock was not present during the first half hour and the
reason I believe that that was {1683} his statement -- I will have to
search the record to find it -- is because on the second page of the 302 it
specifically said that he was present, and I made a little footnote for a
potential cross examination question to see whether there would be a
contradiction between the testimony to be given and what it said there, and
Mr. Sikma's remark.
Now, maybe he misspoke when he said that, but now we are dealing with the
exact opposite. We not only have him present, but he is present and
performing an extra function. It seems to me it would be appropriate to
request at this time that Agent O'Clock be made available Monday morning so
that we can finally explore the foundation of this document because we
always seem to be frustrated by some missing link; and then if appropriate,
get the entire document into evidence and so we can use it in
cross-examining here and use it --
MR. LOWE: (Interrupting) May I make an inquiry?
MR. SIKMA: Just a moment. Your Honor --
MR. CROOKS: (Interrupting) Would you mind letting us finish?
MR. SIKMA: (Continuing) -- I am going to object to this for the reason
that they went into it on the grounds back there that they were concerned
about the first two pages of this; and I had a misunderstanding with regard
to the initial part of that, that the initial part of this -- {1684} I
thought that this was a summary, was a summary in fact of Special Agent
O'Clock, the first part; and I thought that this would solve this problem
by going along with this and saving some time; but if counsel is going to
attempt to put this entire document in, I think it clutters up the record.
I am going to resist it, and I am going to resist it very strenuously. I am
going to resist putting Agent O'Clock on out of order because it is totally
irrelevant. It has no bearing on the facts of the case. As far as this case
is concerned, it is totally immaterial, and for this reason we are going to
resist it.
MR. LOWE: May I just make an inquiry of Mr. Sikma? It may save us a lot of
time, Judge.
On a lot of Government exhibits you asked us to stipulate foundation
without waiving arguments about relevancy. It seems to me that what you are
talking about here is relevancy. I doubt that you would challenge the
foundation of the accuracy of an agent's 302.
Are you willing to stipulate foundation in order to present the question of
law to the Judge as to whether it is relevant or not and avoid a lot of
time delay in having to call Agent O'Clock in? It seems to me that really
would save us a lot of time and trouble here.
MR. SIKMA: I would have to consider that later. I don't think that
foundation could be established through {1685} Agent O'Clock or any other
witness, the type of foundation that would make this document admissible.
If the Defendant insists on calling Special Agent O'Clock who has retired
subsequently in their own case, there is nothing we can do about it, but we
are not going to go any further on this issue with regard to this unless we
are ordered to do so by an order of the Court.
MR. TAIKEFF: I think, your Honor, unless your Honor is going to rule that
this witness is not competent to give the testimony she gave, that the
foundation is really already in. She says he was listening, she was
listening, he was telling her what to write down, June the 1st, 41 minutes
approximately. She was an FBI employee. He was a Special Agent. Whether he
made a mistake goes to the weight, not to the admissibility. It was put
down on a 302 which is an official FBI report, and it stands for what it
says it is. The jury should know.
MR. SIKMA: Your Honor, this first 40 minutes, or whatever, is already in
evidence, and we can argue about that.
MR. TAIKEFF: That's the point. The foundation is already here on the
record.
MR. SIKMA: We have waived it to this limit, and I think the rest of it the
Court has ruled on; and I think that, unless the Court changes its ruling,
that we are {1686} going to retain our earlier position.
MR. TAIKEFF: It is the only document that purports to relate what was
transmitted that day. There are no original notes left. It has perhaps not
the fullest exploration of what weight to give to the document because
Agent O'Clock is not here to testify; but if the Government feels that the
document should be given less weight than it would merit on its face, the
burden would be upon them to introduce evidence to show why the jury should
not accept this document for what it says.
It puzzles me that the Government tries to keep out a document which is
apparently prepared by the FBI in a meticulous and detailed fashion, which
says it doesn't purport to quote but rather to give a summary of what was
going on. That's the only piece of evidence of what was happening over that
radio in existence in the world.
THE COURT: Well, I am still going to reserve ruling. I am going to review
this colloquy and think about it over the weekend.
THE 302 WHICH DETAILED THE RADIO TRANSMISSIONS WAS NOT ENTERED INTO
EVIDENCE....
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